BELLEVILLE – Accountant Mark Diak claims lawyers Grey Chatham and Charles Baricevic should file a malpractice suit over their exposure to tax penalties instead of seeking judgment in equity.
On Jan. 10, on Diak’s behalf, attorney Garth Madison of Chicago moved to dismiss a petition Chatham and Baricevic filed for miscellaneous relief.
Madison wrote that they sought a finding that Diak breached a fiduciary duty.
“Any claim for breach of fiduciary duty is a claim at law for accountant malpractice, is subject to a jury demand as made by defendant in this case, and is improperly brought as an equitable action in this court,” Madison wrote.
Chatham filed the petition in November for himself, Baricevic, and their firm.
“Plaintiffs, collectively and individually, were subject to various fines and penalties by both the state revenue service and the federal revenue service,” Chatham wrote.
He sought an order compelling Diak to deliver documents, and associate judge Julie Katz granted it.
Diak complied, according to Madison’s motion.
“Even assuming that a valid equitable claim was stated seeking these records, defendant’s production has rendered any further claim in equity moot,” Madison wrote.
He wrote that a client seeking to redress accountant malpractice might plead an action at law in tort, contract, or both.
“Plaintiffs failed to allege with specificity what damages they have, but to the extent that they sought to recover any penalties for late payments of taxes, or other funds allegedly procured from the plaintiffs, their remedy would be one at law for monetary damages in a malpractice action,” he wrote.
“Plaintiffs failed to plead specific facts establishing all of the elements of a malpractice action, instead seeking by declaratory judgment a finding as to breach of fiduciary duty, which is only one element of a malpractice cause of action.”
Madison called their petition “nothing more than an improper request for an advisory opinion from this equitable court, which plaintiffs presumably seek to use in a court of law in future litigation to establish one element of a malpractice action.”
Baricevic’s father, former chief judge John Baricevic, practices at the firm.