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Thomas v. Sklodowski

March 23, 1999

ALFRED THOMAS, PLAINTIFF-APPELLANT,
v.
ROBERT SKLODOWSKI; SKLODOWSKI AND FRANKLIN; AND SKLODOWSKI, FRANKLIN, PUCHALSKI AND REIMER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 94 L 1134 The Honorable Sophia Hall, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

The plaintiff, Alfred Thomas, brought a legal malpractice suit alleging that the negligence of his attorney in not giving him notice of withdrawal led to a default judgment against him in a federal case. The defendants argued that they had exercised reasonable efforts in trying to reach the plaintiff and that the federal court had already decided that issue in their favor by granting the attorney leave to withdraw. Furthermore, they contended, the plaintiff's own negligence was the sole proximate cause of the default judgment. The defendants moved for summary judgment, which the trial court granted.

The plaintiff now appeals, contending that: (1) there were genuine issues of material fact, which should have ruled out summary judgment; (2) the adverse rulings of the federal circuit court did not conclusively decide the issue of whether the defendants made reasonable efforts to contact the plaintiff; and (3) there was insufficient evidence for the court to conclude that the plaintiff was the sole proximate cause of the default.

BACKGROUND

In 1989, Stanley Scott was shot and killed by four Chicago Housing Authority (CHA) security guards. One of those guards was Alfred Thomas, the plaintiff in this action. The estate of Mr. Scott sued the security guards and their employer, Security Enforcement Services, Inc. (SES), as well as the CHA, for violation of Mr. Scott's civil rights under color of law. 42 U.S.C.A. §1983 (West 1994); see Estate of Scott v. Lewis, No. 90 C 6744 (N.D. Ill. April 26, 1991). Initially, the firm of Bollinger, Ruberry & Garvey represented SES and the four guards. However, the firm withdrew shortly into the proceedings when SES's insurance company went bankrupt.

Defendant Robert Sklodowski, an Illinois attorney, substituted in, entering an appearance for SES and its employees. When Anthony Cairo, the principal shareholder of SES, later informed Sklodowski that SES was about to declare bankruptcy, Sklodowski also decided to terminate his representation and set out to inform his clients that he would be filing a motion to withdraw.

Mr. Sklodowski requested employment applications for the four guards in order to get their addresses. The plaintiff, however, had moved since applying to work at SES. Mr. Sklodowski discovered that the phone number he had been given for the plaintiff was registered to a business. He drove out to the address but was unable to locate the plaintiff there. He then telephoned Mr. Cairo in order to double-check his information. Mr. Cairo told him that the plaintiff's current address was 1008 West Adams. Mr. Cairo says that he got that address from his "secretary or some other employee." The plaintiff's actual address was 1008 East 80th. The summons service list in the federal case shows the East 80th address, while the service list for the motion to withdraw shows the West Adams address.

Sklodowski sent a copy of the motion to his clients by registered mail, but Thomas' green card was returned as unclaimed. Judge Holderman, who was presiding over the federal case, granted the motion to withdraw after being told that Sklodowski had unsuccessfully attempted to reach the plaintiff at his last known address. Five months later, a default judgment was entered against Mr. Thomas for $1 million. The plaintiff contends that, if not for the default, he would have had self-defense as a defense to the claim against him and, further, that Mr. Sklodowski knew this.

Throughout the litigation, the plaintiff never called his attorneys because he thought SES and the insurance company were taking care of the matter. Eleven months after the withdrawal, the plaintiff discovered the default and filed a motion to vacate on the basis that he did not have notice of withdrawal pursuant to Federal Rules of Civil Procedure 60(b). Fed. R. Civ. P. 60(b). The accompanying affidavit was filed with the plaintiff's motion to vacate:

"1. I am a Defendant in the above cause of action.

2. That I was represented by the law firm of Bollinger and Rebury [sic] who were defending my claim on my behalf.

3. That I had no knowledge that Bollinger and Rubury [sic] had withdrawn from the above cause of action."

The motion to vacate was denied.

Plaintiff then filed the instant malpractice suit against Sklodowski and his firm (collectively, defendants), alleging that he lost on default, despite having a defense, because of the defendants' negligent failure to notify him of the withdrawal. At the time ...


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