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Judy Buckles, As Special Administrator of the v. Hopkins Goldenberg

March 26, 2012

JUDY BUCKLES, AS SPECIAL ADMINISTRATOR OF THE
OF CHARLES BUCKLES, DECEASED, PERSONAL
REPRESENTATIVE AND INDIVIDUALLY ON HER OWN BEHALF, PLAINTIFF-APPELLANT,
v.
HOPKINS GOLDENBERG, P.C., JOHN SIMMONS, AND THE SIMMONS LAW FIRM, LLC, DEFENDANTS-APPELLEES.



Appeal from the Estate Circuit Court of Madison County. No. 06-L-588 Honorable Barbara L. Crowder, Judge, presiding.

The opinion of the court was delivered by: Justice Spomer

NOTICE

The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

JUSTICE SPOMER delivered the judgment of the court, with opinion. Justices Stewart and Wexstten concurred in the judgment and opinion.

OPINION

¶ 1 The plaintiff, Judy Buckles, as special administrator of the estate of Charles Buckles, deceased, personal representative and individually on her own behalf, appeals, pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), the following orders entered by the circuit court of Madison County on the plaintiff's complaint for legal malpractice against the defendants, Hopkins Goldenberg, P.C. (the Hopkins firm), William Miller,*fn1 John Simmons, and the Simmons Law Firm, LLC (Simmons): (1) the January 30, 2009, order granting a summary judgment for Simmons; (2) the January 22, 2010, order granting a partial summary judgment for the Hopkins firm on the issue of whether the Hopkins firm's settlement of the plaintiff's claim against Pittsburgh Corning in the underlying lawsuit was adequate; and (3) the June 18, 2010, order granting the Hopkins firm's motion to reconsider and granting a summary judgment for the Hopkins firm on all of the plaintiff's claims against the Hopkins firm "other than those related to the duty that come[s] with relinquishing the file [to Simmons] and then collecting settlements." For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

¶ 2 FACTS

¶ 3 On July 10, 2006, the plaintiff filed a legal malpractice complaint against the defendants in the circuit court of Madison County.*fn2 The complaint alleged the following facts. The plaintiff's decedent, Charles Buckles, was a boilermaker in various facilities throughout southern Illinois between 1967 and 1995. During his time as a boilermaker, he was exposed to various asbestos-containing products which were manufactured, distributed, and/or installed by various entities who knew or should have known that such products were toxic and could cause mesothelioma. According to the complaint, Mr. Buckles died of mesothelioma as a result of the negligence of these various entities.

¶ 4 In count I, the complaint alleged that the plaintiff hired the Hopkins firm to represent her and the estate of Charles Buckles to recover damages from the asbestos exposure caused by the various entities. The complaint alleged that the Hopkins firm breached its duty to the plaintiff in several different respects. First, the complaint alleged that the Hopkins firm had several secret agreements with potential defendants, including W.R. Grace and Owens Corning, to classify and settle claims against its various clients for predetermined figures. The complaint alleged that these predetermined figures (settlements) bore no relationship to the loss the plaintiff suffered and that the Hopkins firm did not disclose these arrangements to the plaintiff.

¶ 5 Second, the complaint alleged that the Hopkins firm hired an employee with a felonious criminal history and no license to practice law to value cases and provide legal advice to the plaintiff with regard to settlements. Third, the complaint alleged that the Hopkins firm failed to file suit within the statute of limitations against one potential defendant, W.R. Grace. In addition, the complaint alleged that the Hopkins firm failed to collect settlements from the various entities in a timely manner before said entities filed bankruptcy, made improper and excessive cost deductions from the settlement proceeds, unilaterally allocated the proceeds of group settlements to the plaintiff without her knowledge or consent, and failed to disclose to the plaintiff the terms of its fee-splitting arrangements with a national asbestos firm, Ness Motley, LLC. According to count I, these breaches of the standard of care by the Hopkins firm caused the plaintiff to recover less than the full amount of her damages.

¶ 6 Count II of the complaint was directed against William Miller and was dismissed prior to the orders at issue in this appeal. Count III of the complaint alleged by way of background that Simmons, who had been employed by the Hopkins firm from 1997 and who had performed some work on the plaintiff's case while there, left the Hopkins firm in July of 1999. On July 26, 1999, the plaintiff discharged the Hopkins Firm and hired Simmons to represent her on the claims against any remaining potential defendants. The Hopkins firm and Simmons agreed to split the plaintiff's claims, with the Hopkins firm pursuing collection of settlements already reached and Simmons pursuing any remaining potential defendants. Count III alleged that Simmons was negligent in the manner in which he pursued the remaining claims, contributing also to the plaintiff's deficient recovery.

¶ 7 On October 10, 2007, Simmons filed a motion for a summary judgment on the basis that the deadline for the disclosure of experts had passed and that the plaintiff had put forth no expert to testify that he breached the standard of care in pursuing the plaintiff's remaining claims after 1999. On January 30, 2009, the circuit court granted Simmons' motion for a summary judgment.

¶ 8 On July 22, 2009, the Hopkins firm filed a motion for a partial summary judgment on the issue of the adequacy of its settlement of the plaintiff's underlying claim against Pittsburgh Corning for $750,000. On January 22, 2010, the circuit court granted the Hopkins firm's motion for a partial summary judgment as to this issue, holding that the plaintiff's counsel had made binding judicial admissions as to the adequacy of this settlement amount. On February 4, 2010, the Hopkins firm filed another motion for a summary judgment, arguing that because the plaintiff had claims against viable defendants at the time she discharged the Hopkins firm, any alleged breaches of duty by the Hopkins firm as to some of the claims were not a proximate cause of the plaintiff's damages as a matter of law. In addition, the Hopkins firm argued that the circuit court's order granting a summary judgment for Simmons precluded the plaintiff from pursuing any claims against the Hopkins firm on the basis that Simmons was negligent during his employment with the Hopkins firm.

ΒΆ 9 On March 2, 2010, the circuit court entered an order denying the Hopkins firm's February 4, 2010, motion for a summary judgment. However, on May 28, 2010, the Hopkins firm filed a motion to reconsider that ruling. On June 18, 2010, the circuit court entered an order granting a partial summary judgment to the Hopkins firm on the eve of trial. First, the circuit court granted a summary judgment to the Hopkins firm "based on any evidence or claim of Simmons as an agent of [the Hopkins firm] while he was in their employ." Second, the circuit court found that, due to the plaintiff's termination of the Hopkins firm in 1999, the plaintiff ...


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