The Fifth District Appellate Court affirmed dismissal for all but one set of claims in the Hullverson & Hullverson law firm’s suit alleging false and deceptive advertising practices by The Hullverson Law Firm.
The April 15 Rule 23 decision follows an appeal by Hullverson & Hullverson out of St. Clair County Circuit Judge Vincent Lopinot’s court.
Justice Bruce Stewart delivered the judgment of the court, affirming in part, reversing in part and remanding the case for further proceedings. After determining that the present case is not barred under the defendants’ res judicata argument, the appeals court affirmed Lopinot’s dismissal for all claims except those brought under the Uniform Deceptive Trade Practices Act.
Hullverson & Hullverson filed the complaint on Dec. 12, 2013, in St. Clair County Circuit Court against defendants Thomas Hullverson, Stephen Ringkamp, Thomas Burke, Mark Becker and The Hullverson Law Firm.
The plaintiff is a firm established by James E. Hullverson Jr. in 1988, who was formerly employed at The Hullverson Law Firm. He is Thomas Hullverson’s nephew.
Thomas Hullverson is a former principal of The Hullverson Law Firm and went on inactive status in January 2008. Ringkamp, Becker and Burke are current principals of the firm.
The plaintiff argues that the defendants’ advertising of legal services violated the Attorney Act, the Legal Business Solicitation Act, the Lanham Act, the Consumer Fraud and Deceptive Businesses Practices Act and the Uniform Deceptive Trade Practices Act.
Hullverson & Hullverson claims the defendants improperly used Thomas Hullverson’s name on signage and in advertising for legal services in Illinois after he became inactive and was no longer qualified to practice law. The defendants also allegedly improperly used former employee John Hullverson’s name, who now practices law in California.
In March 2014, the defendants filed a combined motion to dismiss, primarily arguing that the complaint should be barred under the doctrine of res judicata due to an adverse ruling in a prior federal court case.
Prior to the present complaint, James Hullverson filed a similar lawsuit against the defendants in the U.S. District Court for the Eastern District of Missouri. The district court dismissed his request for damages based on alleged violations of the Missouri Rules of Professional Conduct. It argued that such violations cannot be a basis of a civil cause of action. James Hullverson later voluntarily dismissed the remaining Lanham Act claims without prejudice.
The defendants argued that the present lawsuit is barred. They also argued that the claims should be dismissed for failure to state a cause of action.
Lopinot granted the defendants’ motion to dismiss on May 8, 2015. He failed to provide any analysis or state the specific grounds for dismissing the complaint. Hullverson & Hullverson appealed.
In regards to the defendants’ res judicata argument, the appeals court held that it is not basis for dismissal of the complaint.
“In the present case, the crucial issue in determining the preclusive effect of the federal court proceeding is whether the prior federal court proceeding was resolved by a ‘final judgment on the merits’ for purposes of federal claim preclusion. We believe that the prior federal court proceeding lacks the finality necessary for federal claim preclusion,” Stewart wrote.
Further, the notice of voluntary dismissal had no preclusive effect with respect to the similar Lanham Act claims or newly filed claims under Illinois statute.
In determining whether the remaining claims serve as grounds for dismissal, the appeals court affirmed the circuit court’s dismissal for all claims except those brought under the Uniform Deceptive Trade Practices Act.
The appeals court held that the defendants’ motion to dismiss did not include any arguments directed specifically at the plaintiff’s Uniform Deceptive Trade Practices Act claims.
Therefore, the appeals court reversed Lopinot’s dismissal of all Uniform Deceptive Trade Practices Act claims. The case was remanded for further proceedings on those claims only.
Justices Melissa Chapman and James Moore concurred in the decision.