Madison - St. Clair Record

Wednesday, November 20, 2019

Pro se plaintiff four times married, to the same person, has no basis for legal malpractice claim, court rules


By John Breslin | Oct 15, 2019

Marriage 01

BELLEVILLE - A judge has ruled that a Belleville law firm and two of its attorneys were not representing a former client when she entered into a marriage settlement with her ex-husband, which she later disputed.

Bobbi Jo Fults, who was involved in an underlying legal tussle with ex-husband, Kenneth - they have divorced four times - has no foundation to pursue a legal malpractice case against Edward J. Blake, Megan M. Gilbreth, and the law firm of Blake Behme.

St. Clair County Circuit Court Judge Heinz Rudolf agreed with the defendants' arguments that the plaintiff failed to craft an argument to support the claim of negligence, and she is legally barred - judicially estopped - due to "inconsistent evidentiary positions."

Rudolf granted the defendants' motion to dismiss on Sept. 24, with prejudice, meaning the complaint cannot be refiled.

The 2016 legal malpractice claim centered on the defendants' representation of Fults in a divorce battle involving a property settlement. According to background in Rudolf's ruling, on Nov. 23, 2015, Associate Judge Julie Gomrich found in favor of husband, Kenneth, but that was overturned by the Fifth District Appellate Court, which found that Bobbie Jo deserved a further "evidentiary" hearing in the matter.

Court documents show the often ex-couple, married and divorced four times over 26 years, in April this year came to "yet another settlement agreement" resolving all post-judgment issues, which related largely to property in Cahokia and Millstadt

In defending Bobbi Jo's legal malpractice claim, the Blake firm argued at a motion to dismiss hearing in August that prior to the November 2015 hearing before Gomrich it had withdrawn its representation, with Bobbi Jo's consent, and that the underlying disputed marital settlement was entered into after Blake stepped aside.  

A transcript of the November 2015 hearing before Gomrich shows that Bobbi Jo was asked by the judge if she wanted to proceed pro se, that is without counsel, and she said yes.

"Analyzing the facts of the case, and in particular a review of the status of the case on Nov. 23, 2015, it is clear that the defendants were no longer counsel of record for Bobbi Jo Fults at the time she entered into the marriage settlement agreement," Rudolf wrote in his judgment.

She made the decision to enter into the agreement of her own accord, one that followed reminders by the judge, Rudolf stated.

"Simply put, the defendants' owed no duty to plaintiff relative to the marital settlement agreement," the judge wrote, adding that the plaintiff testified under oath that she understood and accepted the terms of the settlement.

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