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06/27/96 IMELDA BENNETT v. STUART I. GORDON AND

June 27, 1996

IMELDA BENNETT, PLAINTIFF-APPELLANT,
v.
STUART I. GORDON AND KANTER & MATTENSON, LTD., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 93-L-5416. Honorable Patrick E. McGann, Judge Presiding.

Rehearing Denied August 2, 1996. Released for Publication August 13, 1996.

The Honorable Justice Theis delivered the opinion of the court: Hoffman, P.j., and Cahill, J., concur.

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

Plaintiff, Imelda Bennett, appeals the dismissal of her legal malpractice action against defendants. The trial court found that the doctrine of res judicata barred plaintiff's claims. We affirm in part and reverse in part.

Defendants' attorneys represented plaintiff in a divorce action against her husband, William Bennett (Bennett). In May of 1991, plaintiff entered into a settlement agreement with her husband. On November 15, 1991, defendants filed a petition for attorney fees, costs and expenses (fee petition) pursuant to section 508 of the Illinois Marriage and Dissolution of Marriage Act (Act). See Ill. Rev. Stat. 1991, ch. 40, par. 508.

In her answer to defendants' fee petition, plaintiff raised a number of affirmative defenses against defendants. Plaintiff's defenses can be divided into two categories. The first category consisted of plaintiff's claims that certain fees charged by defendants were inappropriate. For example, plaintiff claimed that defendants were not entitled to fees for work performed prior to the signing of the retainer agreement; defendants charged her for services which she did not authorize; defendants charged her for telephone calls made to plaintiff's sister; and defendants billed plaintiff for telephone conferences despite their promise not to bill for such calls.

The second category of defenses consisted of plaintiff's claims that defendants' representation was inadequate. For example, plaintiff alleged that defendants conducted inadequate discovery by neglecting to obtain appraisals and accountings of Bennett's assets and by failing to obtain body attachments to force Bennett to comply with certain court orders.

Next, plaintiff alleged that defendants improperly permitted Bennett to transfer marital real property and failed to get an accounting of the transfer. Defendants then allowed liens to attach to the improperly transferred marital property, but failed to protect plaintiff's interests from such liens.

In addition, defendants did not seek to have attorney fees imposed upon Bennett. Plaintiff complained that the settlement agreement was inadequate, as it depended upon Bennett's cooperation. Finally, plaintiff alleged that defendants failed to prepare documents transferring the real property, stocks and pension awarded to plaintiff in the settlement at the time judgment was entered.

After a hearing on the fee petition, the divorce court reduced defendants' request for fees by $10,000. Prior to the divorce court's final ruling on the fee petition, however, plaintiff filed an action against defendants in the Cook County Circuit Court Law Division. Plaintiff claimed that defendants had committed legal malpractice while representing her during the divorce proceedings.

While more fully developed, plaintiff's first amended complaint virtually mirrors the allegations in the second category of her affirmative defenses to the fee petition. For example, plaintiff alleged that defendants failed to accurately assess Bennett's assets by neglecting to subpoena or depose witnesses critical to determining his assets and purchases; by failing to obtain cash bond refunds as a means of determining Bennett's income; by failing to order appraisals of marital property; and by neglecting to conduct proper title, lien and mortgage searches. In addition, plaintiff claimed that defendants negligently structured the settlement because it relied upon Bennett's mere promise to comply with its terms.

Next, the first amended complaint alleged that defendants failed to prevent Bennett from transferring and encumbering marital property during the proceedings. Defendants counseled plaintiff to accept marital property which was potentially subject to liens. As a result of Bennett's activities, the property did in fact become subject to various debts and an IRS lien. Plaintiff alleged that defendants failed to protect plaintiff's interests from such encumbrances.

In addition, defendants counseled plaintiff to accept the settlement agreement even though Bennett would not agree to pay attorney fees. Plaintiff's amended complaint alleged that the settlement was inadequate as it depended upon Bennett's cooperation. While plaintiff's alimony and child support were secured with Bennett's share of the marital property, plaintiff alleged that Bennett held only a 50% interest in that property because of the liens and encumbrances. Finally, plaintiff alleged that defendants failed to complete the ...


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