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Besco v. Henslee

June 12, 1998

A.D., 1998 TOMMIE G. BESCO AND DEBRA LYNN BESCO, PEORIA COUNTY, ILLINOIS PLAINTIFFS-APPELLANTS,
v.
HENSLEE, MONEK & HENSLEE, THE ESTATE OF FRANCIS MONEK, FRANK VAN BREE, AND WILLIAM E. DAVIS, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Presiding Justice Homer

Appeal from the Circuit Court for the 10th Judicial Circuit

No. 94--L--467

Honorable John A. Barra, judge Presiding

Plaintiffs brought suit against their former attorneys for legal malpractice in the handling of plaintiffs' underlying personal injury case. As a sanction for violating a discovery order, the trial court barred plaintiffs from naming any opinion witnesses. Thereafter, the trial court granted summary judgment in favor of the attorneys finding that plaintiffs could not prevail on their claim, as a matter of law, absent opinion testimony on the applicable standard of care. We reverse.

FACTS Tommie and Debra Lynn Besco filed a complaint for legal malpractice against the law firm of Henslee, Monek and Henslee, attorney Frank VanBree, and the estate of attorney Francis Monek (collectively referred to as "Chicago Counsel"), and attorney William Davis (Davis) based upon their representation of plaintiffs in the underlying personal injury case.

The underlying lawsuit arose from an automobile accident that occurred in Iowa on January 3, 1990. Tommie, an employee of Chicago and Northwestern Transportation Company, was injured when the company van in which he was riding collided with a vehicle driven by Ronald Cousins. In June 1990, plaintiffs retained Chicago Counsel to represent them in a lawsuit to recover for Tommie's injuries. Although the claim against Cousins was based upon common law negligence, jurisdiction was in the Federal District Court for the Southern District of Iowa since a separate claim against Tommie's employer was based upon the Federal Employers' Liability Act (45 U.S.C.A. §51 et seq. (West 1986)).

The rules of the Federal District Court for the Southern District of Iowa require that attorneys who are not admitted to practice before that court but who wish to file suit in the district must associate with an attorney who has been admitted to the court's bar. Since Chicago Counsel were not so admitted, they hired Davis as local counsel but did not inform plaintiffs. Chicago Counsel first contacted Davis in late November 1991 and asked him to provide them pleading forms so they could ensure the complaint would comply with local rules. At this time, both Chicago Counsel and Davis acknowledged that the claim against Cousins was subject to a two-year statute of limitations; however, it appears that they never discussed the date upon which it would expire in this particular case.

Davis forwarded the requested forms in mid December; and on December 23, 1991, Chicago Counsel sent Davis the complaint and asked him to review, sign and file it. Davis ultimately filed the complaint on January 30, 1992, which was 27 days past the expiration of the statute of limitations for the action against Cousins. The complaint against Cousins was subsequently dismissed based upon the running of the limitations period. Plaintiffs settled their claim against Tommie's employer for $175,000.

In April 1993, plaintiffs instigated the instant malpractice suit against Chicago Counsel and Davis based upon their failure to file the suit against Cousins in a timely manner. *fn1 At the case management conference on June 28, 1996, the following discovery cut-off dates were set by court order: (1) all written discovery by July 15, 1996; (2) depositions of all parties and nonopinion witnesses by September 30; (3) plaintiffs' opinion witnesses identified by September 15, and deposed by October 15; and (4) all other parties' opinion witnesses identified by November 15, and deposed by December 15.

Chicago Counsel identified attorney James Shipman as their expert witness on November 15, 1996. The disclosure statement revealed that Shipman was prepared to testify that (1) Chicago Counsel acted reasonably and were not negligent in their representation of plaintiffs, but that Davis was negligent for failing to timely file the complaint, and (2) he believed it would be highly unlikely, given the history of jury verdicts in the Iowa federal courts, the nature of Tommie's injuries, and his vocational abilities, that plaintiffs would have recovered a jury verdict exceeding the settlement collected from Tommie's employer.

Plaintiffs, however, failed to disclose opinion witnesses by the September 15 deadline and failed to appear at a scheduled case management conference in December. On December 19, 1996, Chicago Counsel filed a motion to bar plaintiffs from naming opinion witnesses and a motion for summary judgment.

On January 6, 1997, new counsel appeared on behalf of plaintiffs and filed a response to the motion to bar experts and a disclosure statement naming Roger Denton, the attorney who initially represented them in this case, as their expert witness. In their response to the motion to bar experts, plaintiffs explained that Chicago Counsel's repeated refusal to make defendant VanBree available for deposition since their first request in July 1995 prejudiced their ability to file an adequate and timely expert witness disclosure. Plaintiffs also filed a motion for summary judgment based upon Chicago Counsel's lack of cooperation in making VanBree available for deposition.

The trial court entered an order on May 2, 1997, granting defendant's motion to bar plaintiffs' expert witness, granting summary judgment in favor of Chicago Counsel, and denying plaintiffs' motion for summary judgment. The court found that plaintiffs' counsel failed to: appear at two case management conferences; disclose any expert witnesses by October 15 as ordered by the court; seek an extension of the deadline of October 15; or show good cause why they could not disclose experts by that date. *fn2 The court also found that plaintiffs would be unable to prove their case without a standard of care expert. The action against Davis continued until he filed a motion for summary judgment in August 1997 which was granted by the trial court based upon plaintiffs' lack of an expert witness.

On appeal, plaintiffs contend that the trial court erred in (1) barring them from presenting opinion witnesses and (2) granting summary judgment in favor of Chicago Counsel and Davis after finding that plaintiffs could not prevail on their claim, as a matter of ...


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