Articles Posted in Res Judicata Defense

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The Second District of the Illinois Appellate Court recently decided Nutter v. Schiller DuCanto & Fleck, 2022 IL App (2d) 210376, in which it held that a legal malpractice claim was barred by res judicata because the lawyer and the client had previously engaged in litigation over the lawyer’s fee petition. The court summarizes the procedural history of the dispute as follows:

¶ 11 On December 18, 2020, defendants moved to dismiss plaintiff’s legal malpractice complaint. They alleged that res judicata barred plaintiff from bringing the action because (1) the legal malpractice case and the fee petition concerned the same parties, (2) the order awarding defendants fees and costs was final, and (3) the fee petition and malpractice action involved the same legal services. See 735 ILCS 5/2-619 (West 2020). In response, plaintiff asserted that res judicata did not bar his legal-malpractice action because he had a right to a jury trial in the legal-malpractice action and no such right in the marriage dissolution proceedings. Thus, application of res judicata would deprive him of his right to a jury trial.

¶ 12 Although the trial court held a hearing on the motion to dismiss, no transcript (or acceptable substitute) from that hearing was filed in this court. See Ill. S. Ct. Rule 323(c) (eff. July 1, 2017). Following that hearing, the trial court granted defendants’ motion to dismiss. In doing so, the court noted in its written order that “plaintiff recognized that the two competing claims could be consolidated and tried together, and even acknowledged that the court could try both cases together or bifurcated with plaintiff’s claim of legal malpractice tried to a jury and defendant’s petition for Section 508 fees tried in simultaneous or sequential bench trial.” The court continued that “[t]he divorce court judge had set a longer briefing schedule on the petition for fees, and yet there was no response filed by the plaintiff, only the last minute filing of the legal malpractice law case.” The court observed that plaintiff essentially sat on his hands, “pinning all hopes on the motion for continuance based on the recent filing of this [legal malpractice] case filed in the `Law’ division of the court.” This timely appeal followed.

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