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Jose Herrera-Corral, Maribel Herrera and Eduardo v. Lawrence H. Hyman

March 31, 2011

JOSE HERRERA-CORRAL, MARIBEL HERRERA AND EDUARDO HERRERA,
PLAINTIFFS-APPELLANTS,
v.
LAWRENCE H. HYMAN,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 08 L 009003 The Honorable Elizabeth M. Budzinski, Judge Presiding.

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

PRESIDING JUSTICE HALL delivered the judgment of the court with opinion.

Justices Hoffman and Rochford concurred in the judgment and opinion.

OPINION

The plaintiffs, Jose Herrera-Corral, his wife, Maribel Herrera, and their son, Eduardo Herrera, (collectively, Mr. Herrera-Corral), appeal from an order of the circuit court of Cook County dismissing their complaint for legal malpractice against the defendant, Lawrence H. Hyman (Mr. Hyman). The sole issue raised on appeal is whether the circuit court erred in dismissing the complaint.

PROCEDURAL BACKGROUND

I. Federal Court Proceedings

In 2002, Mr. Herrera-Corral and his father-in-law, Fidel Robeles-Ortega, entered pleas of guilty in federal court to conspiring to possess cocaine with intent to distribute. Their plea agreements reserved the right to appeal the denial of their joint motion to suppress. At the time of the entry of the plea agreement, Mr. Hyman represented Mr. Herrera-Corral; Mr. Robeles-Ortega was represented by different counsel. Mr. Robeles-Ortega appealed; the plaintiff did not.

While Mr. Robeles-Ortega's appeal was pending, Mr. Herrera-Corral filed a federal habeas corpus petition alleging, inter alia, that Mr. Hyman's failure to file an appeal and failure to remain available to him during the 10 days to file an appeal constituted ineffective assistance of counsel. The district court denied the petition, but the court of appeals remanded the case, ordering that the petition be granted. Corral v. United States, 498 F.3d 470 (7th Cir. 2007).

Initially, the court of appeals noted that it had ruled in Mr. Robeles-Ortega's appeal that the suppression motion should have been granted. See United States v. Robeles-Ortega, 348 F.3d 679 (7th Cir. 2003). As a result, Mr. Robeles-Ortega was released from prison. Corral, 498 F.3d at 471. The court found that Mr. Hyman's failure to remain available to Mr. Herrera-Corral during the 10 days in which the notice of appeal was required to be filed constituted ineffective assistance of counsel. As a result, Mr. Herrera-Corral "[was] entitled to an appeal." Corral, 498 F.3d at 475. The case was remanded to the district court. On October 12, 2007, the district court dismissed the indictment against Mr. Herrera-Corral, vacated his sentence and ordered him released from custody.

II. Cook County Circuit Court Proceedings

On August 14, 2008, Mr. Herrera-Corral filed a multi-count complaint against Mr. Hyman, alleging legal malpractice, breach of fiduciary duty, breach of contract and loss of consortium, all stemming from Mr. Hyman's ineffective assistance of counsel.*fn1

Subsequently, he filed an amended complaint alleging the same causes of action. Mr. Hyman filed a combined motion to dismiss pursuant to sections 2-615 (failure to state a cause of action) and 2-619 (a)(5) (complaint filed untimely) of the Code of Civil Procedure (the Code). 735 ILCS 5/2-615, 2-619(5) (West 2008)). On October 13, 2009, the ...


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