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04/15/88 Michael R. Formento Et Al. v. Edward T. Joyce Et Al.

April 15, 1988





522 N.E.2d 312, 168 Ill. App. 3d 429, 118 Ill. Dec. 857 1988.IL.551

Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.


JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT and WOODWARD, JJ., concur.


Plaintiffs, Michael R. Formento and Karin E. Formento, filed suit in the circuit court of Du Page County against defendants, various attorneys and law firms, seeking damages allegedly arising out of defendants' representation in an underlying class action suit. Following the trial court's granting of summary judgment in favor of defendants, plaintiffs moved for reconsideration and to amend their complaint. The trial court denied plaintiffs' motions, and this appeal followed.

The issue raised in this appeal is whether the trial court correctly ruled, as a matter of law, that defendants owed no duty to plaintiffs as unnamed members of an uncertified class action suit.

Defendants represented several individuals in a class action law-suit arising out of the purchase of property located in the Bahamas (hereinafter Bahamas litigation). The suit was originally filed in the circuit court of Cook County in 1976, was dismissed for failure to state a cause of action pursuant to the class action defendants' motion, and later was reinstated on appeal. See Anderson v. Grand Bahama Development Co. (1978), 67 Ill. App. 3d 687, 384 N.E.2d 981.

Following remand to the circuit court, several events occurred. On April 10, 1981, the named class action plaintiffs moved for leave to file an amended complaint in which they sought to add numerous plaintiffs and to withdraw all class action allegations. The trial court granted the named class action plaintiffs' motion. Additionally, the trial court, pursuant to a settlement agreement entered into by the parties on April 10, 1981, dismissed the case.

The settlement agreement provided that the named plaintiffs in the suit receive, among other things, certain refunds as well as warranty deeds to the various parcels of property at issue in the case. Additionally, the named class action plaintiffs' attorneys (defendants in this case) received $100,000 for litigation expenses and fees. Furthermore, the agreement required plaintiffs' attorneys therein to "dismiss with prejudice the above entitled action and all other actions now pending." Finally, the named class action plaintiffs' attorneys, by the terms of the agreement, agreed not to represent or advise any other party in connection with any claim or action based upon any claim made in the Bahamas litigation. The Bahamas litigation was never certified as a class action, nor does the record indicate any attempt by the attorneys to have the class action certified. As a result, no notice was ever sent or published informing any unnamed class members of the pendency of the action or of the proposed settlement.

Plaintiffs in this case were also involved in the purchase of land from the defendants named in the Bahamas litigation. They were not, however, included as named plaintiffs in the Bahamas litigation.

Plaintiff Michael R. Formento, in his discovery deposition, stated that he did not learn of the Bahamas litigation until December 1981. Subsequent to his learning of the Bahamas litigation, Formento telephoned the law firm of Joyce & Kubasiak, P.C., to request their representation in plaintiffs' dealings with their Bahamas land transaction. Pursuant to that conversation, plaintiffs sent defendants Joyce & Kubasiak, P.C., various materials related to the land transaction. Following the initial telephone conversation and correspondence, there apparently were several letters sent back and forth between plaintiffs and defendant Joyce & Kubasiak, P.C. According to Formento, he received no information from Joyce & Kubasiak, P.C., regarding the Bahamas litigation other than that the case had been settled.

Michael R. Formento also stated in his deposition that he never discussed legal fees with defendant Joyce & Kubasiak, P.C., nor did he discuss any contract for legal services, nor did he ever pay any fees to any of the individual defendants, Joyce, Kubasiak, Cremieux, or their law firms. Furthermore, he stated that he never received any legal advice from any of those defendants or their firms. Finally, Formento stated that he had no other contact with any of the defendants either before or after the initial telephone call and subsequent written correspondence.

Mr. Edward T. Joyce, the managing partner of defendant Joyce & Kubasiak, P.C., stated in his affidavit that neither he nor anyone associated with defendants, Joyce, Ltd., or Joyce & Kubasiak, P.C., were paid or offered a fee, or retained by plaintiffs. He further submitted that none of these defendants ...

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