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Attorney Fees Are Actual Damages in Legal Malpractice Claims, Second District Rules

Our Illinois legal malpractice lawyers recently noted an appellate decision from the Second District establishing that attorney fees are “actual damages” within the meaning of Illinois law. Nettleton v. Stogsdill, No. 2-07-1215 (Ill. 2nd Dec. 29, 2008). The ruling arose out of a legal malpractice claim by Margaret Nettleton, who was unhappy with the representation provided by attorney William J. Stogsdill, Jr., in her divorce.

Nettleton retained Stogsdill in 2001 for her divorce, whose trial was set for late 2002. On the day before trial, however, an associate from Stogsdill’s office appeared to ask for a continuance because Stogsdill was in another trial and unable to attend or prepare. The motion was denied, but a two-day continuance was granted the next day when Stogsdill himself appeared. On the day of the new trial, Stogsdill asked for a voluntary nonsuit, which was denied because he hadn’t given notice to all of the parties. He then called Nettleson to the stand, where he asked her to state and spell her name. He then rested her case. The divorce was not granted. Stogsdill filed a second petition for dissolution, but Nettleton fired him about two months later. (She was represented by four other firms before her divorce was granted.)

Nettleton eventually sued, alleging that Stogsdill and his firm committed malpractice by being unprepared, by moving for a nonsuit without her consent and by putting her on the witness stand and then resting without her consent. The damages she cited included loss of the attorney fees paid to both Stogsdill and other attorneys. The trial court granted Stogsdill’s motion for summary judgment on the grounds that Nettleton hadn’t demonstrated actual damages caused by Stogsdill’s actions — she hadn’t shown that she would have received a larger divorce settlement if not for Stogsdill. After various other legal maneuvers, Nettleton appealed.

Nettleton’s appeal contended that the trial court misapplied the law on actual damages because the attorney fees were the direct result of Stogsdill’s alleged negligence, and no caselaw disallows such a finding. The appeals judges agreed. Relying on Sorenson v. Fio Rito, 90 Ill. App. 3d 368, 374 (1980) and Sterling Radio Stations, Inc. v. Weinstine, 328 Ill. App. 3d 58, 63 (2002), they wrote that Nettleton incurred new attorney fees in an attempt to undo the effects of alleged negligence — to get the divorce that she was not granted originally. Relating the malpractice damages to the size of the divorce settlement Nettleton received was “illogical,” the court wrote, because it was not at issue in the malpractice claim.

The appeals court also examined Nettleton’s claim that the trial judge erred in granting summary judgment on the issue of whether Stogsdill proximately caused her damages. Nettleton claimed this was a genuine issue of material fact inappropriate for summary judgment, and the appeals judges agreed. Deposition testimony showed that at least some of the divorce would have to be litigated again because of Stogsdill’s actions, and thus a reasonable person could conclude that Stogsdill caused at least some of the new attorney fees. Caselaw cited by the defendants was, again, irrelevant. Thus, the appeals court reversed the summary judgment decision and remanded it to trial court.

As legal malpractice attorneys in Chicago, DiTommaso-Lubin has substantial experience sorting out the fine distinctions that make the difference between success and failure of a malpractice case. We represent both clients and attorneys involved in Illinois malpractice claims. Located in Chicago and with offices in Oak Brook near Naperville, Wheaton and Aurora, we serve clients in the greater Chicago area and throughout the Midwest. To speak to us today about your malpractice case, please contact us through our Web site for a confidential consultation.