This case, Fox v. Seiden, has already made two trips to the Illinois Appellate Court. It is interesting because it is the rare case in which the court granted summary judgment in favor of the plaintiff.
The underlying case was captioned Multiut Corp. v. Draiman. The current case was brought on behalf of Miriam Draiman, one of the defendants in the Multiut case. In 2001, the court found that Draiman’s husband had engaged in deceptive trade practices and assessed attorney fees against “the defendants.” Plaintiff sought fees of $1,317,026.85. There was a big problem with this finding in that Miriam Draiman was not found liable on the consumer fraud act count. Thus, the judge erred in awarding attorney fees against “the defendants.”
Seiden appeared for Miriam Draiman in the post-trial proceedings. The Appellate Court describes the alleged error as follows:
¶ 5 Defendants Glenn Seiden and Glenn Seiden & Associates initially represented Draiman in the Multiut case. However, before trial, another firm was substituted in their stead. After the trial was lost and the petition for attorney fees was filed, Seiden and his firm again appeared on Draiman’s behalf, this time for the purpose of handling the posttrial proceedings. Defendants did not explicitly argue on Draiman’s behalf that she could not be liable for attorney fees because she was not found liable under the count that authorized the fees—the deceptive trade practice count. They did, however, argue around the periphery that less culpability and, therefore, a lesser amount of fees, should be assigned to Draiman. The order entering judgment for the attorney fees assigned liability to “defendants.”
¶ 6 Seiden and his firm filed a motion to clarify the order which again did not make the specific argument that Draiman could not be liable for attorney fees because she was not named in the deceptive trade practice count, but it did present an argument concerning the allocation of fees. However, that motion was never ruled upon because Seiden, on behalf of Draiman, filed a notice of appeal divesting the trial court of jurisdiction. Seiden submitted an affidavit averring that he filed the notice of appeal upon instruction from Draiman and that he was also then instructed to withdraw from the case, which he did.
The trial court in the underlying case denied relief and the judgment was not vacated as to Miriam Draiman.
Draiman then handled her own appeal pro se. The Appellate Court ruled against Draiman, who then filed for bankruptcy. The bankruptcy trustee then brought this malpractice case. The malpractice case alleged that Seiden breached the duty of care by failing to make the correct arguments in the post-trial motion; namely, that Draiman was not liable for violating the Illinois Consumer Fraud Act so she could not be liable for the attorney fee award.
In Fox v. Seiden I, the Appellate Court reversed the dismissal of the case.
On remand, the trial court entered summary judgment in favor of Draiman. On appeal, the court in Fox v. Seiden II reversed that grant of summary judgment. The court explained that Draiman did not meet her burden to establish summary judgment because she did not submit evidence on the standard of care. The court put it this way:
Plaintiff is likewise not entitled to judgment as a matter of law because there is no evidence concerning the standard of care, no evidence that the representation provided by defendants fell below that standard, and the error was not of the kind that is so grossly apparent that it would be within the common knowledge of laypersons so expert testimony is required. There is likewise a possibility that Draiman at least contributed to her own loss so plaintiff has failed to adequately prove the damages attributable to defendants’ alleged negligence. Unfortunately—in the sense that this legal odyssey is 15 years in the making—the judgment for the plaintiff must be vacated.
Comment: There are a few issues to consider. First, this case is complicated and involves litigation malpractice. Such cases are tough to prove. Second, Seiden appears to have withdrawn after the adverse judgment but before the appeal was completed. This caused the client, Miriam Draiman, to brief her own appeal, which, unsurprisingly, she lost. Sometimes it is perhaps best to remain in a case where the client is in a tough situation (facing a huge judgment) than to allow the client to brief her own appeal. Third, the court’s opinion and judgment are correct under Illinois law.
Edward X. Clinton, Jr.