Appellate Court sides with Cueto in forum decision

By Steve Gonzalez | May 2, 2007

Judge Lloyd Cueto The Illinois Appellate Court in Mt. Vernon unanimously affirmed St. Clair County Circuit Judge Lloyd Cueto's decision to deny a motion to dismiss a legal malpractice case pursuant to the doctrine of forum non conveniens.

Judge Lloyd Cueto

The Illinois Appellate Court in Mt. Vernon unanimously affirmed St. Clair County Circuit Judge Lloyd Cueto's decision to deny a motion to dismiss a legal malpractice case pursuant to the doctrine of forum non conveniens.

Rick Rosen and the Rosen Law Firm had argued to Cueto that St. Clair County was an inappropriate forum for Ivan Brant's professional negligence and fraud claims arising from the defendants' representation of the plaintiff.

Rosen and his law firm are both reside in St. Clair County.

Brant filed a six-count complaint against Rosen, the law firm, and a third defendant, Dwight Hardin, who is employed as a consultant by Rosen's firm.

He alleged that he retained Rosen and the law firm to represent him in his Federal Employers' Liability Act (FELA) for damages against his employer, Union Pacific Railroad, for injuries he received during the course of his employment.

Brant alleged that both Rosen and Hardin told him that they were licensed, practicing attorneys, even though Hardin allegedly was not an attorney.

Brant alleged Rosen and Hardin negligently "instructed and counseled" him to settle his FELA case against the railroad for less than its fair value, failed to conduct an adequate investigation into the liability and damage evidence, and settled his case without filing suit or conducting any discovery and before he attained maximum medical improvement.

He also alleged that he received substantially less in settlement for his case than it was worth and, therefore, "suffered significant damages in the form of inappropriate compensation for past and future medical expenses, past and future wages, pain, suffering, disability and disfigurement."

In addition to the professional negligence claims, Brant also claimed that each defendant was guilty of fraud because Rosen, individually and through the law firm and Hardin made several untrue statements.

According to Brant, he was told that he was required to accept Union Pacific's settlement offer of $150,000 or be forced to accept $20,000 and relocate to Utah as a security guard.

He also alleged the Hardin and Rosen had misrepresented that his settlement included medical coverage for him and his family and that they had fully investigated the case before recommending the settlement.

In response to the suit Brant filed, the defendants' filed a motion based upon forum non conveniens contending that the complaint should be dismissed under the Illinois Supreme Court decision in Dawdy v. Union Pacific because Brant's suit has little or no connection with the State of Illinois.

They alleged that Brant was a resident of Scott City, Mo.; that his work injury occurred near Osage City, Mo., that all the witnesses to his work injury lived in Missouri, that his medical treatment and physical therapy occurred in Missouri, and that all of Brant's treating physicians were located in or near Cape Girardeau.

Hardin also claimed he was a resident of Missouri and also that he and Rosen never met with Brant or any representative of Union Pacific in Illinois.

Brant's attorney, Tom Keefe of Swansea responded by saying "The utter absurdity of suggesting that Brant be forced to litigate his claim against Mr. Rosen and his law firm in a county other than St. Clair is demonstrated by the fact that Brant hired Mr. Rosen and his law firm, both of which are located in St. Clair County."

Keefe also argued that the defendants' suggestion that a legal malpractice case could not be conveniently prosecuted in the very county where the defendant lawyer and his law firm resided and where the alleged negligent representation was rendered "defies credulity."

Keefe also told Cueto that in order for Rosen and Hardin to sustain their motion, they were required to demonstrate that Brant's choice of forum substantially inconvenienced them, "a burden which they could never meet under these circumstances."

Cueto denied the motion after holding a hearing.

Justice Bruce Stewart wrote the court's opinion.

"By filing a forum non conveniens motion, a defendant admits that the plaintiff's chosen venue is technically proper but asks the court to decline jurisdiction in favor of another forum that can better serve the convenience of the parties and the ends of justice," Stewart wrote.

"In the case at bar, venue is proper in St. Clair County," Stewart added. "Clearly, Rosen and the law firm are both residents of St. Clair County and were joined in good faith."

"The Illinois Supreme Court has repeatedly noted that although the forum non conveniens doctrine gives the trial court broad discretion to dismiss a case in favor of a more convenient forum, that discretionary power should not be used to deny a plaintiff his choice of forum unless exceptional circumstances require a trial in a more convenient forum.

"In order to sustain their burden of proof, the defendants were required to show that the plaintiff's chosen forum was inconvenient to them and that another forum was more convenient to all the parties.

Justices Goldenhersh and Chapman concurred with Stewart.

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