The Second District Appellate Court affirmed a Kane County trial court’s dismissal with prejudice of a malpractice claim seeking $2 million in damages against a matrimonial law firm. Johnson & Bell Shareholder, Joseph R. Marconi, secured the dismissal with prejudice of the matrimonial law firm at trial. Johnson & Bell Attorney, Adam J. Sedia, secured the appellate decision affirming the trial court’s dismissal.
In this case, the plaintiff, a disgruntled ex-husband whose divorce had just concluded, filed a lawsuit against his matrimonial law firm for failing to obtain a proper valuation of marital assets and arguing for proper allocation. The complaint sought damages of more than $2 million.
As usual, the malpractice complaint was filed in response to the matrimonial law firm’s filing a fee petition in the divorce court. In this case, however, plaintiff filed his separate malpractice action while the fee petition was still pending. The plaintiff asked to continue the fee petition hearing, arguing that the malpractice case involved the same issues and should be consolidated with the fee petition. But the plaintiff never moved to consolidate before the hearing on the fee petition. The divorce court denied a continuance and entered a fee award for the matrimonial law firm (our client).
At the trial level, we then moved to dismiss the malpractice complaint under 2-619, arguing the decision on the fee petition was res judicata because the malpractice claim should have been asserted as a defense to the fee petition. The trial court agreed and dismissed the complaint.
On appeal, the plaintiff switched his position and argued that the malpractice action was separate from the fee petition and should not have been barred by res judicata. We asked the Appellate Court to apply the invited error doctrine, because the trial court’s dismissal resulted from its adoption of the plaintiff’s initial position. The Appellate Court agreed.
The Appellate Court’s main reason for affirming, however, was that the record was insufficient. The plaintiff never introduced a transcript from the fee petition hearing before the malpractice court, so on review the court had no basis to determine what, if any, factual overlap there was between the fee petition and the malpractice claim.
Based in Johnson & Bell’s Crown Point, Indiana office, Adam J. Sedia has briefed and argued approximately 90 cases before the Indiana Supreme Court and Court of Appeals, the Illinois Supreme Court and Appellate Court, and the Seventh Circuit Court of Appeals on a variety of issues: plaintiff and defense tort litigation, commercial litigation, probate litigation, family law, and criminal appeals.
Related Item:
Marconi Secures Dismissal with Prejudice of Multi-Million Dollar Malpractice Lawsuit
