Fox v. Seiden
53 N.E.3d 1005
Ill. App. Ct.2016Background
- Miriam Draiman (defendant in underlying Multiut litigation) was found liable only for civil conspiracy; her husband Yehuda and some corporations were found liable for deceptive trade practices that supported an attorneys’ fee award under the Deceptive Trade Practices Act.
- Draiman was assessed attorneys’ fees as part of a judgment that referred to "defendants" generally; Draiman was not named in the deceptive trade practice count and the trial court made no explicit willfulness finding against her on that count.
- Draiman was represented at different times by defendants (Seiden; Glenn Seiden & Associates; Azulay Horn & Seiden). Defendants did not specifically argue in the trial court that Draiman could not be liable for fees because she was not named in the fee-shifting count; a notice of appeal and substitution of counsel occurred before the trial court ruled on a motion to clarify.
- On appeal in the Multiut case, Draiman’s appellate brief failed to respond to certain fee arguments and the appellate court held she waived the right to contest the fee award; Draiman later filed bankruptcy.
- Draiman (through trustee Fox) sued the former attorneys for legal malpractice for failing to raise the argument that she could not be held liable for attorneys’ fees under the specific statutory count; the trial court entered summary judgment and a multi-million dollar judgment for plaintiff, which was later vacated as to damages.
- On this appeal the Illinois Appellate Court held (1) defendants were not entitled to judgment as a matter of law on proximate cause; but (2) plaintiff was not entitled to summary judgment because expert testimony was required to establish standard of care and there were factual issues (including comparative negligence) for trial. The judgment for plaintiff was vacated and the case remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Draiman could lawfully be held liable for attorneys’ fees when she was not named in the deceptive trade practice count | Draiman could not properly be held liable; had attorneys raised the argument the fee award against her would have been reversed | Trial court knew she was not named yet assessed fees; thus defendants are not proximate cause | Court: As a matter of law, Draiman should not have been held liable on the fee count if the specific argument had been presented; underlying fee award against Draiman was erroneous on the pure legal question |
| Whether plaintiff was entitled to summary judgment on malpractice without expert testimony (common-knowledge exception) | Omission was obvious and lay judges could recognize negligence without expert testimony | Expert testimony required to establish standard of care | Court: Common-knowledge exception does not apply; expert testimony is required to establish the applicable standard of care and breach; summary judgment for plaintiff improper |
| Whether defendants are entitled to summary judgment because any defense remained viable when they withdrew (proximate cause) | N/A (plaintiff) | Defendants: defense to fee award was still viable on appeal when discharged, so they cannot be proximate cause of loss | Court: Triable issue exists; defendants not entitled to judgment as a matter of law on proximate cause; factfinder must assess causation and comparative negligence |
| Whether Draiman’s conspiracy/alter-ego/ bankruptcy findings bar recovery (unclean hands / collateral estoppel) | N/A (plaintiff) | Defendants: Draiman was a conspirator and later held nondischargeable / alter ego in bankruptcy—so defendants’ omission did not cause liability; also argued unclean hands | Court: Bankruptcy rulings and conspiracy findings do not resolve malpractice causation as a matter of law; unclean-hands defense was untimely and appropriately denied; these matters raise issues for trial or collateral proceedings |
Key Cases Cited
- Barth v. Reagan, 139 Ill. 2d 399 (discusses necessity of expert testimony in legal malpractice and the common-knowledge exception)
- Governmental Interinsurance Exchange v. Judge, 221 Ill. 2d 195 (proximate causation in legal malpractice is generally a factual question)
- House v. Maddox, 46 Ill. App. 3d 68 (example where common-knowledge exception applied: statute of limitations failure)
- Sorenson v. Fio Rito, 90 Ill. App. 3d 368 (common-knowledge exception where attorney took no action)
- Mitchell v. Schain, Fursel & Burney Ltd., 332 Ill. App. 3d 618 (defense viability at time of discharge affects proximate cause)
- Gruse v. Belline, 138 Ill. App. 3d 689 (malpractice assessed by reference to events prevailing at time of alleged malpractice, not subsequent developments)