Fiduciary Duty

Zombro v. Jones, 2018 IL App (4th) 170442-U

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The third-party plaintiff, Vicky Jones, sued the third-party defendant, attorney Kevin Hammer, for legal malpractice in a real estate transaction where Hammer had represented her.

Jones alleged that Hammer had grossly understated the price of her land in the contract he drafted, threw the contract at Jones during a meeting, and lambasted the deal in front of the buyers, thereby inducing Jones to sell her land for one eighth its supposed market value. Conversely, Hammer and the buyer alleged that Hammer had correctly stated the agreed-upon price in the contract, and that Hammer didn’t throw anything at Jones. Hammer also said Jones had read the final contract and asked him questions before signing.

The Trial Court granted summary judgment in Hammer’s favor. When Jones appealed, Hammer argued that he had not breached any duty to Jones, because he had technically performed the two tasks she had hired him to do. The Appellate Court rejected this “scope-of-engagement” argument, holding that Hammer, as Jones’ attorney and therefore his agent, was not merely obligated to perform certain tasks, but also owed Jones a fiduciary duty “to treat his principal with the utmost candor, rectitude, care, loyalty, and good faith—in fact to treat the principal as well as the agent would treat himself.” Id. at ¶41. This fiduciary duty extended to all tasks he was hired to perform and “all matters connected” with those tasks. Id.

Nevertheless, the Appellate Court found that there was no genuine issue of material fact with respect to one critical element of Jones’ claim: damages. Specifically, the deal Hammer allegedly ruined didn’t actually exist, since the deal Jones claimed she had hired Hammer to pursue differed from the deal the buyers believed they were entering into. In fact, the buyers swore that they could not have afforded the land at the price to which Jones believed they had agreed. Moreover, the Court explained that even if it were to assume “for the sake of argument, that Hammer did indeed bully Jones into selling the land for only $5,000, it appears she suffered no resulting harm, because […] Jones presented no admissible evidence that the land was worth more” and “the arm’s-length transaction […] is evidence of the highest rank to determine the true value of property.” Id. at ¶55. Summary judgment was therefore affirmed.

Zombro v. Jones, 2018 IL App (4th) 170442-U

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



Alonso v. Weiss, 301 F. Supp. 3d 885 (N.D. Ill. 2018)

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Limited partners in investment funds filed suit on their own behalf and derivatively on behalf of their funds against a court-appointed receiver, alleging she had violated the Investment Advisers Act and Securities and Exchange Commission Rules, breached her fiduciary duties and engaged in legal malpractice. Among other things, the plaintiffs asserted that the receiver had failed to pursue certain litigation opportunities or needlessly pursued others, all to the detriment of the receivership estate.

The primary issue in the case was whether the receiver had intentionally tried to harm the estate. In the Seventh Circuit, “an injured party can only ‘recover from the receiver when the receiver intentionally acts in clear contravention of duty,’ and the receiver will not be held liable for ‘exercise of poor judgment.’” Id. at 894, citing In re Kids Creek Partners, L.P., 248 B.R. 554, 560-561 (Bankr. N.D. Ill. 2000). With that in mind, the plaintiffs alleged that the receiver was motivated in part by malice toward a former manager of the funds’ general partner. They also claimed that she breached her duties in order to ingratiate herself with the SEC so it would give her more receivership work in the future.

The Northern District of Illinois granted summary judgment in favor of the court-appointed receiver. The court held that the plaintiffs failed to demonstrate that any of the receiver’s allegedly improper actions had been intended to harm the receivership estate.

Alonso v. Weiss, 301 F. Supp. 3d 885 (N.D. Ill. 2018)

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

Daily v. Greensfelder, Hemker & Gale, P.C. 2018 IL App (5th) 150384, appeal denied sub nom. Daily v. Greensfelder, Hember & Gale, P.C., 98 N.E.3d 39 (Ill. 2018):

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This case came to the Fifth District on a “friendly contempt” for failure to comply with a discovery order.  The Fifth District held that a breach of fiduciary duty claim put “at issue” a client’s communications with its attorneys because those communications were necessary to determine who contributed to the alleged breach of fiduciary duty and the relative contribution of each.

Daily v. Greensfelder, Hemker & Gale, P.C.

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

Barefoot Architect , Inc. v. Sabo & Zahn, 2017 IL App (1st) 162616-U

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In this unpublished opinion, the First District affirmed the dismissal of a legal malpractice claim on statute of limitations grounds and a breach of fiduciary duty claim resulting from a bankruptcy case where the plaintiff had hired attorneys other than the defendants to represent in those proceedings. The court held that, ordinarily, a cause of action for malpractice accrues when a court enters an adverse judgment against a malpractice plaintiff. Here, the statute of limitations had run even using the date the appellate court entered an adverse judgment against the plaintiff. The court held that the lawyers’ statements that the court had erred did not establish were insufficient to preclude application of the statute of limitations under theories of fraudulent concealment or equitable estoppel.

Barefoot Architect , Inc. v. Sabo & Zahn, 2017 IL App (1st) 162616-U

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

Mareskas-Palcek v. Schwartz, Wolf & Bernstein, LLP

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The First District affirmed the dismissal of conversion and breach of fiduciary duty claims against a lawyer and law firm that allegedly closed a real estate sale the day after their client died. The court held that the executor of the estate of the client was the proper party to bring the claim and that the plaintiffs, who were beneficiaries of trusts that were to receive the sale proceeds, did not have standing to bring suit. The court also held that the plaintiffs were not the lawyer’s clients and were not owed a duty by the lawyer because the primary purpose for the lawyer’s retention was not to benefit plaintiffs.

Mareskas-Palcek v. Schwartz, Wolf & Bernstein, LLP

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

Hilton v. Foley & Lardner, LLP

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In this unpublished opinion, the First District affirmed the dismissal of conversion and breach of fiduciary duty claims brought by an individual and affirmed the grant of summary judgment with respect to legal malpractice claims brought by an LLC.

As to the individual’s claims, the court affirmed the dismissal on statute of limitations grounds.  The plaintiff should have known of the defendant lawyer’s conflicted representation of the plaintiff when his lawyer wrote a letter to defendant’s lawyer on the issue.  Moreover, the court noted that the two-year statute of limitations applies to any claim against a lawyer (even if it is not a legal malpractice claim) sounding in tort, contract or otherwise and arising out of professional services, even if the claim is brought by a non-client.

As to the LLC’s claim, the court held that there was no evidence that the lawyer’s conduct proximately caused any loss.   There was no evidence that another lawyer representing the LLC would have acted differently and the plaintiff did not depose managing member of the LLC to try to adduce that evidence.

Hilton v. Foley & Lardner, LLP, 2017 IL App (1st) 162450-U

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

Swervo Entertainment Group, LLC v. Mensch

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The District Court for the Northern District of Illinois dismissed in part and refused to dismiss portions of a complaint against an attorney.   The attorney allegedly agreed to hold an advance deposit in escrow and release it if the attorney’s client and the depositor did not reach an agreement.    An agreement was not reached, but the attorney did not release the funds allegedly deposited in escrow.   The court held that the plaintiff stated a claim for fraud (the attorney allegedly never intended to return the funds) and breach of the escrow agreement.   The court further held that the plaintiff’s claim for negligence was barred by the Moorman doctrine, its claim for breach of fiduciary duty was duplicative of the claim for breach of the escrow agreement, its quasi-contract claim was barred by the existence of an actual contract and its claim for attorneys’ fees was barred by the “American rule” barring attorneys’ fees in ordinary litigation.

Swervo Entertainment Group v. Mensch