Madison County Circuit Judge David Dugan took an Edwardsville law firm’s motion to dismiss under advisement in a former client’s legal malpractice lawsuit alleging negligent representation resulted in a $780,000 jury verdict.
Defendants Sandberg Phoenix & von Gontard, John Gilbert and Narcisa Symank filed their motion to dismiss the plaintiffs’ first amended complaint on April 12 through attorney Gary Meadows of HeplerBroom LLC in Edwardsville.
They argue that the amended complaint is deficient.
The defendants allege the amended complaint fails to provide facts from the underlying case that plaintiffs Midwest Sanitary Service, Nancy Donovan and Bob Evans Sr. would have prevailed on the claims made by former employee Paul Crane Jr. absent the alleged malpractice.
Instead, the defendants argue that the plaintiffs allege “in a purely conclusory fashion that ‘the result of the trial would have been different, and a lesser or no amount would have been paid by [Midwest] to satisfy the judgment and for legal fees paid to defendants.’”
“Indeed, if this were sufficient, this would create open-ended liability for defense attorneys as every dissatisfied defendant could sue its attorney after an adverse verdict, claiming a legal mistake and hoping that a second trial would show that even though it would have lost anyway, the amount of the verdict may have been smaller if the case had been tried differently,” the motion states.
The defendants also argue that the plaintiffs are improperly trying to recoup the punitive damages portion of the jury verdict, which is not allowed under Illinois law.
“Specifically, the Supreme Court of Illinois has held that because punitive damages are awarded ‘to punish the offender and to deter that party and others from committing similar acts of wrongdoing in the future,’ that public policy is not served by allowing the burden of those punitive damages to be shifted to the attorneys,” the motion states.
Further, the defendants argue that the plaintiffs have collectively filed only two counts, which violates Illinois statutes. They state that counts I and II are duplicate negligence claims seeking the fees paid to Crane’s attorneys and reimbursement of the fees paid to Sandberg Phoenix to defend the underlying case.
The plaintiffs filed a response to the motion to dismiss on April 17 through attorney Patricia Zimmer of Ripplinger & Zimmer LLC in Belleville.
They argue that the defendants failed to properly comply with discovery in Crane’s case, resulting in witnesses being barred that would have been able to testify regarding Crane’s discharge.
“But for defendants’ negligence, these witnesses would have presented the ultimate issue defense for the jury’s consideration,” the response states.
The plaintiffs also argue that they are not required to prove that they certainly would have won, and is instead required to show that some sort of victory was more likely than not.
As for the punitive damages, Midwest argues that it is “seeking to be compensated for its own actual damages that, but for the defendants’ negligence, it would not have had to pay.”
“These are entirely compensatory damages,” the response states. “The fact that the underlying jury’s award consisted of some punitive damages does not change the fact that the Midwest was required to pay, and has lost these funds, due to the defendants’ negligence.”
The plaintiffs argue that the defendants have shifted their argument from stating the plaintiffs must plead separate causes of action to they must plead their separate damages. The plaintiffs argue that their claims are properly separated at this point.
“In separating the company’s claims form the individuals’ claims, the amended complaint has complied with the court’s order,” the response states.
“It is well established that, in a case against an attorney, a plaintiff cannot claim negligence and breach of fiduciary duty as separate claims for the same claimed actions and the same resulting damages against the attorneys,” it continues.
Dugan took the motion to dismiss under advisement on April 24 following a motion hearing.
Dugan had previously dismiss the plaintiff’s original complaint for failing to properly separate the claims after the defendants sought dismissal in October 2018.
An amended complaint was filed Feb. 25, alleging the defendants were retained as counsel on April 20, 2015 in a trial where Crane alleged he was wrongfully terminated.
Crane filed his suit in March 2014 (14-L-501). He alleged he worked as a truck driver for the Wood River company. He claimed he observed Midwest employees engaging in “unauthorized and illegal dumping and/or storage of toxic waste and other substances hazardous to the health and well-being of the public.”
On Nov. 18, 2015, the Environmental Protection Agency sent Midwest a letter noting the “numerous environmental violations” after Crane reported photos of the alleged violations to state regulators. Crane was terminated the same day.
Sandberg Phoenix took the defense over from the plaintiffs’ prior defense counsel in Crane’s case.
The trial began Nov. 9, 2015.
The one-week trial in Madison County Circuit Judge Dennis Ruth’s court ended on Nov. 17, 2015, after jurors returned a verdict awarding Crane $160,000 in compensatory damages and $625,000 in punitive damages for a total of $785,000. Evans and Donovan were only found to be liable for compensatory damages.
Then on July 15, 2016, Crane was awarded $225,000 for his attorney fees.
The plaintiffs in this case allege Gilbert responded in an email, “They will get nothing, of course, when the appellate court overturns the judgment.”
Donovan, Evans and Midwest Sanitary Service claim Gilbert reassured them that the appellate court would rectify “this miscarriage of justice.”
According to the Rule 23 decision by appellate justice Thomas Welch, the defendants sought a new trial following the verdict after a juror reached out to Midwest and the defendants’ counsel, suspecting juror misconduct and speculation based upon a testimony that had been excluded for improper disclosure.
According to the juror’s affidavit, the jury had concluded that a voicemail complaining of Crane’s behavior must have been fabricated because the customer never testified at trial.
Ruth denied the motion. Midwest, Donovan and Evans appealed.
However, the Fifth District Appellate Court affirmed the jury’s verdict and Ruth’s handling of the trial on May 26, 2017.
“Generally, a verdict may not be impeached by testimony or affidavits relating to the motive, method, and process of jury deliberations,” Welch wrote.
The appellate court concluded that the trial court did not abuse its discretion in concluding “jurors were not influenced and prejudiced by the juror misconduct to such an extent that they would not, or could not, be fair and impartial.”
In their complaint against Sandberg Phoenix, the plaintiffs allege their counsel failed to list all witnesses intended to be called at trial, resulting in six witnesses for defense being barred.
They allege the defendants failed to identify a voice mail recorded message from a Midwest customer regarding a lost or destroyed document in response to a request to produce, resulting in a “missing evidence” instruction given to the jury. They also allege the defendants failed to object to jury instructions.
Then while the case was pending in the appellate court, the plaintiffs claim the defendants failed and refused to discuss potential settlement with opposing counsel. The defendants allegedly simply responded with “No” and failed to discuss or even inform their client.
Madison County Circuit Court case number 18-L-811