Supreme Court grants attorney leave to challenge appeals court decision over legal malpractice claim

By John Breslin | Dec 17, 2018

Fifth District Appellate Court  

Edwardsville attorney David Fahrenkamp was granted leave to appeal by the Illinois Supreme Court in a case with its roots in a claim of legal malpractice.

He petitioned the high court to challenge a July decision from the Fifth District Appellate Court that reversed summary judgment in his favor involving his work as a guardian ad litem for a minor who was awarded a substantial settlement following a car accident.

In a 2-1 decision, the appellate court remanded the case back to the Madison County Circuit Court. It found that his argument of immunity as court-appointed guardian ad litem unpersuasive, and held that findings of fact must be determined at the trial court.

Fahrenkamp had been sued by Alexis Nichols, formerly known as Alexis Brueggeman, who was awarded a settlement of $600,000 when she was 11.

The attorney was accused of "dissipating" the settlement while acting as guardian ad litem, specifically that he allowed the plaintiff's mother access to some of the settlement funds.

Nichols had earlier sued her own mother for using the funds, which she claimed amounted to nearly $80,000. In 2013, a court ruled in favor of the plaintiff, but limited the amount to $16,365, $10,000 for an attorney, and the return of a vehicle.

At the trial court, the now retired Circuit Judge Barbara Crowder found that the mother could not face damages for failing to provide receipts for all the claims she made to the probate court, and it noted that the claim was that the money was spent for her daughter.

Crowder held that she would not add damages “while [Plaintiff] had a guardian ad litem who approved the estimates and expenditures."

Nichols then turned her attention to Fahrenkamp and his law office in 2013, claiming they failed to protect her interests by allowing her mother to convert plaintiff’s settlement funds for the mother’s personal benefit. "

In her complaint. Nichols claimed the attorney "never met or talked" to her while acting as guardian ad litem. Further, he never asked if statements "contained in her mother’s petitions to withdraw monies from the settlement account were accurate."

In a motion to dismiss and later for summary judgment, Fahrenkamp argued that he had "quasi-judicial immunity" because he acted within the parameters laid down by a court that appointed him.

He also said he met with Nichols on three separate occasions over the six years of his guardianship.

The appeals court noted that Crowder recognized that there were duties imposed on a appointed guardian ad litem, she found that even if the guardian failed to meet with his charge this did not “constitute a failure to fulfill the actions and duties that were assigned to defendant by the probate court.”

Justice Judy Cates, writing the decision for the majority on the three judge panel, took aim at the disputed claim over whether there were meetings between Nichols and the attorney, and over the handing of a business card to a young girl.

"We find it incredulous that an 11-year-old would understand the significance of attorney Fahrenkamp being appointed as her guardian ad litem, or even understand that she could call numbers listed on a business card to get advice," Cates wrote, adding that Fahrenkamp "owed a duty" to provide and protect the interests of the child.

"In any event, contrary to the court’s ruling, these issues represented material facts, and this factual dispute was not capable of being resolved by summary judgment."

There are genuine issues of fact surrounding the case, and for that reason the trial court "erred in granting summary judgment for the defendants," Cates stated, remanding  the case back to the circuit court.

Justice Richard Goldernhersh found persuasive the argument over immunity for court appointed guardians, and dissented.

"As noted in the majority opinion, while alluding to both qualified and absolute immunity of attorney Fahrenkamp, as plaintiff’s guardian ad litem, the majority concludes that attorney Fahrenkamp is not entitled to either form of immunity," Goldernhersh wrote.

"In my view, this runs contrary both to sound authority and is impractical in practice in our trial courts.".

Goldenhersh further argued that it will have a "chilling effect" on the legal profession's enthusiasm to act in this role.

Attorneys Charles W. Armbruster III, Michael T. Blotevogel, Roy C. Dripps III, of Maryville law firm Winterscheidt & Blotevogel, LLC, 51 Executive Plaza Court, Maryville, represented Nichols..

Fahrenkamp was represented by M. Joseph Hill, of Edwardsville. 

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