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Lisa Dowd v. Scott A. Berndtson and Scott A. Berndtson

December 21, 2012

LISA DOWD,
PLAINTIFF-APPELLEE,
v.
SCOTT A. BERNDTSON AND SCOTT A. BERNDTSON, P.C., AN ILLINOIS CORPORATION,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 12 L 002067 Honorable Drella C. Savage, Judge Presiding.

The opinion of the court was delivered by: Justice R. Gordon

JUSTICE R. GORDON delivered the judgment of the court, with opinion. Presiding Justice Lampkin and Justice Hall concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Lisa Dowd brought a legal malpractice action in the circuit court of Cook County against defendants Scott A. Berndtson and Scott A. Berndtson, P.C., in connection with defendants' representation in certain matters related to plaintiff's divorce. Defendants filed a motion to transfer the case pursuant to the doctrine of forum non conveniens, claiming the case should be litigated in Du Page County instead of Cook County. The trial court denied defendants' motion and we granted defendants' petition for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. Sept. 1, 2006). For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 At the end of 1999, plaintiff hired attorney Michael Minton and his law firm to represent her in a dissolution of her marriage, and in March 2001, plaintiff and her ex-husband entered into a settlement agreement, which was entered as part of a judgment for dissolution in the circuit court of Cook County. The case was initially filed in Cook County but was later transferred to Du Page County because plaintiff, her ex-husband, and their children all resided in Du Page County. Plaintiff now resides in Florida.

¶ 4 On February 24, 2003, plaintiff hired attorney Wendy Morgan and her law firm to represent her in postjudgment proceedings, which she did until withdrawing her appearance on July 26, 2006; the postjudgment proceedings largely took place in Du Page County.

¶ 5 In February 2007, plaintiff hired defendants to explore possible malpractice actions against her counsel, including Morgan, and in March 2007, defendants filed a legal malpractice action on plaintiff's behalf against Minton, the attorney who handled the initial 2001 dissolution settlement and was also involved in postjudgment matters; defendants failed to file a claim against Morgan and the statute of limitations for such an action has now expired.

¶ 6 Plaintiff filed an amended complaint for legal malpractice against defendants on August 10, 2010, in the circuit court of Du Page County based on defendants' failure to file a legal malpractice claim against Morgan.

¶ 7 On December 23, 2010, defendants filed a motion to dismiss plaintiff's amended complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)), and on February 18, 2011, plaintiff filed a second amended complaint in the circuit court of Du Page County.

¶ 8 On February 24, 2011, plaintiff voluntarily dismissed her complaint, and on February 23, 2012, plaintiff refiled her complaint in the circuit court of Cook County.

¶ 9 On April 10, 2012, defendants filed a motion to transfer the case pursuant to forum non conveniens. The motion claimed that the underlying marital settlement agreement was entered into in Du Page County, as was the dissolution of marriage judgment. Additionally, all of the postjudgment proceedings occurred in Du Page County. The motion further claimed that defendants' principal place of business was in Du Page County, and that all of the work performed by defendants was performed in Du Page County.

¶ 10 In response, plaintiff claimed that the motion should be denied because the underlying dissolution occurred in Cook County, not Du Page County as defendants claimed; defendant Berndtson resided in Cook County; and defendants could not show inconvenience that greatly outweighed plaintiff's substantial right to her chosen forum. Plaintiff further claimed that her prior attorneys, Minton and Morgan, both represented her in and have their registered offices in Cook County; and that other witnesses likely to be called, such as plaintiff's ex-husband's attorney and defendant Berndtson's wife, also have offices in Cook County. Plaintiff's affidavit, attached to her response, also stated that Cook County was more convenient for her because when she travels to Chicago from Florida, she flies into and stays in Cook County.

¶ 11 On July 17, 2012, in a written order, the trial court denied defendants' motion to transfer. The trial court first discussed the private interest factors at issue. The court noted that at the time of the alleged incident, plaintiff did not reside in Cook County. However, the underlying dissolution action was filed in Cook County and the judgment for dissolution was recorded in Cook County; plaintiff's divorce attorneys, Minton and Morgan, also had offices located in Cook County. Accordingly, the court concluded that the alleged legal malpractice arising from plaintiff's dissolution proceedings occurred in Cook County. The court also noted that while postjudgment proceedings were eventually transferred to Du Page County, where plaintiff resided at the time, plaintiff now lives in Florida, which is why she refiled the action in Cook County. Thus, the trial court determined that plaintiff's choice of forum should be afforded deference.

ΒΆ 12 Next, the court noted that defendants failed to demonstrate that Cook County was inconvenient and that Du Page County was more convenient to all of the parties. Defendant Berndtson resides in Cook County, even though his office is in Du Page County. Further, plaintiff lives in Florida and stated that Cook County was the more convenient forum due to its proximity to O'Hare and Midway ...


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