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There is No Legal Malpractice Where The Underlying Case Could Not Have Been Won

A legal malpractice case requires careful analysis. Even if the lawyer was negligent in some way, did the negligence make any difference in the ultimate outcome? To evaluate a legal malpractice case, you must evaluate the underlying case as well.

Rodi v. Horstman, 2015 IL App (1st) 142787 is such a case. Rodi hired Horstman to handle an appeal of an unfavorable decision. It is undisputed that Horstman filed the notice of appeal one day late and the Appellate Court held that it had no jurisdiction. Rodi then sued Horstman for legal malpractice, but the trial court granted summary judgment for Horstman and the Appellate Court affirmed. The reason is that even if Horstman had timely filed the notice of appeal the appeal was a loser.

The Underlying Case:

The underlying case was captioned Rodi v. Roeser. Roeser never represented Rodi. Instead, he represented Chrysler Financial Services in an attempt to collect money from Rodi.

In 1990, Chrysler obtained a default judgment against Robert J. Rodi (the plaintiff’s father) for $1,228,698.47. Around that time, Robert Rodi gave his wife Ann all of his interest in one company, Rodi- Copeland Construction, and 52% interest in Rodi Properties. Robert gave the remaining interests to his children. Rodi Properties “became a general partnership with Ann and the six children as the partners.” Opinion ¶ 6.

In January 1991, the circuit court entered an order showing that the judgment debt had been reduced to $355,185.24. In February 1991, Thomas Roeser, on behalf of Chrysler, file citations to discover assets with several banks that had loaned money to some of the businesses owned by the Rodi family. The citation to discover assets falsely stated that the amount due was $1,228,698.47, not $355,185.24. The incorrect citation allegedly caused damage to Rodi Properties and Rodi Construction because banks would not lend them additional funds. Robert Rodi went bankrupt and Ann Rodi sustained financial losses as a result of the citation.

In 1997, Rodi sued Roeser alleging that he wrongfully failed to correct the citations. Rodi alleged that Roeser intentionally interfered with the contract between one of the banks and Rodi Construction. On December 20, 2005, the circuit court held that the plaintiffs, Ann Rodi and her children, lacked standing to sue Roeser and that the cause of action belonged to Rodi Construction. Horstman filed the notice of appeal one day late and the appeal was dismissed on September 25, 2006. (The opinion does not explain why it took 8 years for the circuit court to determine that the case was without merit).

On July 3, 2008, Ann Rodi, Rodi Properties and Rodi Construction, sued Horstman for legal malpractice. The trial court held that Rodi was not damaged by the untimely notice of appeal because Horstman would not have prevailed in the appeal if it were timely in that individual Rodi plaintiffs lacked standing to sue Roeser.

The Appellate Court affirmed on a different ground – that the case against Roeser was not timely because it was not filed within two years of the wrongful actions. Because the citations were filed in 1991, the statute of limitations expired “by 1995 at the very latest, well before Ann and the participating children filed Rodi v. Roeser, No. 97 L 8640.” Thus, the underlying case was barred by the statute of limitations and the appeal would not have succeeded anyway.

The court concluded that “nothing Horstman did or failed to do had any effect on the viability of the lawsuit against Roeser and Chrysler.” Opinion at ¶ 49.

Comment: I have encountered many cases like this one where a lawyer made a mistake but the mistake had no impact on the outcome of the case because the party’s position was absolutely without merit. Often a case that looks like a great legal malpractice case goes up in smoke when the lawyer considers whether the client’s underlying grievance had any merit at all.

Edward X. Clinton, Jr.

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