Case Within a Case

Layne v. Feda 2018 IL App (2d) 170924-U

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Plaintiffs, Rhonda Layne and Louis Iacovelli, retained defendants, William Feda, Timothy Mahoney, and McNamee and Mahoney, LTD, to represent them in a lawsuit against Adoption Ark and two of its employees.  The plaintiffs allege that Adoption Ark, an adoption service, rescinded its authorization for plaintiffs to adopt a child through them on suspicion of Layne’s mental unfitness, despite Layne twice being deemed fit for parenthood by a psychiatrist.  The plaintiffs sued Adoption Ark, but lost on summary judgment.  They then sued the defendants for legal malpractice, alleging that the defendants had failed to file a timely post summary judgment motion to amend the complaint against Adoption Ark with new legal theories.  The defendants filed a motion to dismiss with prejudice for failure to plead sufficient facts to establish a cause of action, which the trial court granted.

On appeal, the plaintiffs argue that they did plead facts sufficient to show that they would have won on five different causes of action against Adoption Ark if the defendants had brought them.  Id. at ¶ 15.  The appellate court disagreed with respect to all potential claims, noting throughout their decision a “lack of specific allegations” and that the “conclusory” complaint “is not pled with… particularity and specificity.”  Id. at ¶ 29, 32, 33.  With respect to some of the facts the plaintiffs did provide, the Court described them as “mere characterization of a combination of acts.”  Id. at ¶ 35.

Layne v. Feda, 2018 IL App (2d) 170924-U

(This is for informational purposes and is not legal advice.)

Nelson v. Quarles & Brady, LLP , 2018 IL App (1st) 171653

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Kenneth Nelson hired Quarles & Brady, LLP (“QB”) to represent him in a breach of oral contract dispute against Richard Curia, the general manager of Nelson’s two automobile dealerships.  Summary judgment was granted in that case, requiring Nelson to sell shares of one dealership to Curia.  Nelson appealed, discharged QB, and then hired new counsel.  The Seventh Circuit reversed the district court’s summary judgment ruling, after which Nelson settled with Curia and sued QB for legal malpractice.  After amendment, dismissal, appeal, and remand, Nelson filed the instant complaint against QB.

In it, Nelson sought to establish proximate causation by proving the case within the case, i.e., that but for QB’s negligent failure to investigate and raise certain arguments, he would have prevailed in the underlying oral contract dispute.  The district court disagreed with this assertion, and the appellate court affirmed.  In its decision, the appellate court held that Nelson “failed to establish even the existence of a contract,” let alone that there was something QB should have done to save his case.  Id. at 143.

Nelson v. Quarles & Brady, LLP , 2018 IL App (1st) 171653

(This is for informational purposes and is not legal advice.)

Lurie v. Wolin , 2017 IL App (1st) 161571

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In this unusual case, the First District addressed a situation where it had previously reversed an order of dismissal and found that a complaint stated a claim for legal malpractice. The plaintiffs, an escrow company and its principals, sued their first attorney for legal malpractice related to advice given over how to address embezzlement of company funds by the CFO. The trial court dismissed the original malpractice complaint without prejudice with leave to file an amended complaint by a date certain. Plaintiffs did not file an amended complaint by that date, and the court dismissed the complaint with prejudice. Subsequently, the plaintiffs’ malpractice attorney (their second attorney overall) filed a motion to reconsider the order dismissing the complaint and included an amended complaint that purported to have a file stamp before the court’s original deadline. In their response to the motion to reconsider, defendants attached certified copies of the official docket sheets for the case showing that neither the amended complaint nor the motion for reconsideration had been timely filed.

The trial court noted the inconsistency in the court records and documents submitted by the plaintiffs’ malpractice attorney, but concluded that it could not believe that plaintiffs’ malpractice attorney “would attempt to do anything not consistent with the court rules.” Accordingly, the court granted the motion to reconsider and set aside the earlier order dismissing the case with prejudice. Defendants then filed a motion to dismiss the amended complaint on substantive grounds, which the court granted with prejudice. Plaintiffs appealed and the First District reversed the dismissal. In the course of these events, Plaintiffs also hired new counsel (their third attorney overall).

Plaintiffs original malpractice counsel (their second attorney overall) was later disbarred for misconduct that included submitting a falsified email notice of filing in the Northern District of Illinois.

On remand, the trial court held an evidentiary hearing to determine whether plaintiffs’ malpractice attorney had falsified the time stamps on the amended complaint and motion to reconsider. Defendants also argued that the trial court lost jurisdiction over the case when plaintiffs failed to file a timely motion to reconsider. Plaintiffs argued that the court’s previous ruling on the jurisdictional issue (granting the motion to reconsider and setting aside the dismissal order) became the law of the case following the First District’s reversal of the trial’s court’s order dismissing the case. The trial court ultimately held that the law of the case did not bar reconsideration of this issue because of a “significant change in circumstances” – the malpractice attorney was found guilty of falsifying court documents and lying to judges. The trial court concluded that it lost jurisdiction to take any action after plaintiffs missed the deadline for filing their motion to reconsider, vacated all orders entered after that date, and dismissed the case with prejudice.

On the second appeal, the First District held that its prior order finding that the complaint stated a claim for legal malpractice had become the law of the case, even with respect to the jurisdictional issue. Nonetheless, the Court held that the law of the case doctrine was not a limitation on its power to revisit an issue where the facts had changed or where the initial decision was “clearly erroneous and would work a manifest injustice.” Indeed, the Court found that a court may depart from the law of the case in numerous circumstances, including to remedy a fraud on the court. Thus, because plaintiffs’ malpractice attorney had perpetrated a fraud on the court, the Court exercised its discretion to consider the jurisdictional issue and affirmed the dismissal of the case.

This case is very interesting in its own right, but it raises another interesting question. What would the Lurie plaintiffs need to do to win a legal malpractice claim against the malpractice attorney who falsified documents? A number of “double malpractice” cases address the situation where a lawyer retained to prosecute a complaint against another lawyer is accused of malpractice. See, e.g., McKnight v. Dean, 270 F.3d 513 (7th Cir. 2001); Rodi v. Horstman, 2015 IL App (1st) 142787. In these cases (and others), the courts make clear that the traditional elements of a malpractice case must be proved as to both underlying cases. For example, in McKnight v. Dean, the 7th Circuit affirmed summary judgment on a legal malpractice claim. There, the plaintiff sued his attorney in a lawsuit against his former employer. He ultimately settled this malpractice suit for $765,000, but later claimed that the attorney who represented him in the malpractice suit himself committed malpractice in the advice he gave about the settlement. The plaintiff then sued that attorney for malpractice. The court granted summary judgment and the 7th Circuit affirmed, finding that the plaintiff failed to show that, had it not been for the attorney’s alleged negligence related to the settlement, the plaintiff could have expected to obtain more than $765,000 in his original lawsuit. 270 F.3d at 520. In Rodi v. Horstman, the First District affirmed summary judgment and held that because the first malpractice case was bared by the statute of limitations, the second lawyer’s failure to file a timely notice of appeal from its dismissal did not cause any loss. 2015 IL App (1st) 142787, ¶ 40. A district court case from D.C. put the requirement into words with which legal malpractice lawyers are familiar when it stated that in a double malpractice case, the court must consider the “case within the case within the case.” Edelberg v. Roberts, No. Civ. A. 04-1992 (JDB), 2005 WL 1006000, at *4 (D.D.C. April 29, 2005).

Turning back to the Lurie case with this guidance, it seems that to win a malpractice case against the disbarred malpractice attorney, the plaintiffs would not only need to show that he breached the standard of care (which seems somewhat obvious), but also that they would have been successful in that malpractice action (and, by extension, in the underlying matter) had their first attorney not committed malpractice.

Lurie v. Wolin, 2017 IL App (1st) 161571

(This is for informational purposes and is not legal advice.)

Laurent v. Johnson

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The Third District affirmed the grant of summary judgment in a legal malpractice case.  The court held that plaintiff had no evidence that she would have been successful in the underlying case within a case but for the legal malpractice because she failed to satisfy the “discrepancy rule” for an insurance case.  The court also held that there was no evidence that the settlement of the underlying case was depressed by the alleged malpractice because the plaintiff settled her underlying case before the court dismissed it.  Thus, there was no evidence of either causation or damage.

Laurent v. Johnson, 2017 IL App (3d) 160627

(This is for informational purposes and is not legal advice.)

Cwik v. Law Offices of Jonathan Merel, P.C.

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In this unpublished order, the First District held that the plaintiff had failed to allege that he would have won his underlying petitions but for the defendant lawyer’s malpractice.   The court held it was not enough for the plaintiff to allege that he would have defeated the underlying defendant’s motions to dismiss but for the lawyer’s negligence, he needed to allege that he ultimately would have succeeded on the petitions themselves.

Cwik v. Law Offices of Jonathan Merel, P.C., 2017 IL App (1st) 153143-U

(This is for informational purposes and is not legal advice.)

Recent Illinois Case: Rawal v. Newland and Newland LLP

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In this unpublished opinion, the First District affirmed the dismissal of a legal malpractice case for failure to plead proximate causation. The court held that the complaint did not adequately plead that the plaintiff would have succeeded in the underlying litigation but for the defendants’ malpractice because the allegations of success were conclusory and the plaintiff did not plead sufficient facts to prove the “case within a case.”

Rawal v. Newland and Newland LLP, 2016 IL App (1st) 151940-U

(This is for informational purposes and is not legal advice.)

Recent Illinois Case: MCZ Development Corp. v. Dickinson Wright

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The Northern District of Illinois, applying Illinois law, dismissed this legal malpractice case, in part, because the plaintiffs: (a) had been successful in underlying litigation and thus could not prove their case within a case; and (b) had not yet suffered actual damages because a final determination had not been issued in another underlying case.

MCZ Development Corp., et al. v. Dickinson Wright, PLLC, et al., 2015 WL 7008134

(This is for informational purposes and is not legal advice.)