Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lurie v. Wolin

Court of Appeals of Illinois, First District, Third Division

September 19, 2017

DEREK LURIE and STEVEN LURIE, Individually and d/b/a American Escrow, LLC, Plaintiffs-Appellants,
v.
PHILIP S. WOLIN, Individually and d/b/a Wolin, Kelter & Rosen, Ltd., Defendants-Appellees.

         Appeal from the Circuit Court Of Cook County. No. 14 L 013007 The Honorable Janet Adams Brosnahan, Judge Presiding.

          PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justices Pierce and Mason concurred in the judgment and opinion.

          OPINION

          NEVILLE PRESIDING JUSTICE

         ¶ 1 This case comes before us for a second time. In the prior appeal, we held that Derek and Steven Lurie's complaint adequately stated a cause of action against the defendants, Philip Wolin and Wolin, Kelter & Rosen, Ltd., for legal malpractice. We reversed the dismissal of the complaint. Lurie v. Wolin, 2014 IL App (1st) 130661-U. On remand, defendants asked the circuit court to reconsider the issue of whether it lost jurisdiction over the case before it entered the order we reviewed in the prior appeal. After an evidentiary hearing, the trial court found that the Luries' attorney filed documents with date stamps falsified to make the court believe that the attorney had filed the documents within the time permitted. The circuit court found that it had lost jurisdiction in 2011, before it filed the order we reviewed in the prior appeal, when the Luries failed to timely file a motion to reconsider the dismissal of the complaint with prejudice.

         ¶ 2 On appeal, the Luries argue that the law of the case doctrine barred relitigation of the jurisdictional issue and that the evidence did not support the finding that the circuit court lost jurisdiction in 2011. We agree with the Luries that the circuit court's original implicit ruling that it had jurisdiction became the law of the case. However, because the allegations supported a finding that the Luries' attorney perpetrated a fraud on the court, we find that the law of the case doctrine does not prevent us from considering the jurisdictional issue. The circuit court's finding of fact that the attorney falsified the documents is not contrary to the manifest weight of the evidence, and it supports the ruling that the circuit court lost jurisdiction over the case in 2011, before it entered the order we reviewed in the prior appeal. Accordingly, we affirm the circuit court's judgment dismissing the Luries' complaint.

         ¶ 3 BACKGROUND

         ¶ 4 The Luries formed American Escrow, LLC, to provide escrow services for homeowners. Derek hired the law firm of Wolin, Kelter & Rosen to represent American Escrow. In 2003, Derek discovered that American Escrow's chief financial officer, Caren Dietz, had embezzled funds from American Escrow.

         ¶ 5 The Luries consulted Wolin about how American Escrow should address the embezzlement and the loss of funds needed to pay its liabilities. Wolin, Kelter & Rosen represented American Escrow until February 2009. The states of Illinois and Ohio filed lawsuits in 2009 and 2010, charging that the conduct of American Escrow and its officers from 2003 to 2009 violated consumer protection laws. Illinois and Ohio courts entered default judgments against the Luries and American Escrow.

         ¶ 6 The Luries hired attorney Richard Zachary to assist them with a potential claim against Wolin individually and Wolin, Kelter & Ross for legal malpractice. In October 2010, the Luries, through Zachary, filed a complaint against the defendants alleging that the Luries followed Wolin's legal advice from 2003 through 2009, and Wolin's advice caused them to violate consumer protection laws.

         ¶ 7 The defendants filed a motion to dismiss the complaint. The circuit court dismissed the complaint without prejudice by order dated April 1, 2011. The court set May 9, 2011, as the date for filing an amended complaint. On July 8, 2011, the defendants filed another motion to dismiss the complaint, alleging that the Luries had not filed an amended complaint. The Luries filed no response to the motion to dismiss, but at the hearing on the motion, Zachary claimed that he gave the amended complaint to his employee for filing and that employee must have misfiled it. Zachary did not present a copy of the amended complaint to the court or to defense counsel. The circuit court granted the Luries an extension to August 18, 2011, to file the amended complaint.

         ¶ 8 Zachary did not file any documents between July 8 and August 18, 2011. No attorney for the Luries appeared at the hearing on August 18. The circuit court entered an order on August 18, 2011, dismissing the complaint with prejudice.

         ¶ 9 Zachary, sometime later, filed a motion to reconsider the order dismissing the complaint. The circuit court entered an order dated December 12, 2011, granting the defendants leave to respond to the motion to reconsider. On December 20, 2011, Zachary sent an e-mail to defense counsel, and he attached the motion to reconsider and the amended complaint to the e-mail. When Zachary presented the documents in court, the amended complaint bore a file stamp dated May 9, 2011, and the motion to reconsider bore a stamp indicating that Zachary filed it September 19, 2011.

         ¶ 10 Defendants attached to their response to the motion to reconsider certified copies of the official docket sheets for the case. The court's records showed that neither party filed any documents between the date of the order dismissing the complaint without prejudice-April 1, 2011-and the date of defendants' motion to dismiss the complaint-July 8, 2011. The court's records showed no filings dated May 9, 2011, or September 19, 2011. The court's records did not show any amended pleading or motion to reconsider filed before December 5, 2011.The court's records showed that Lurie did not pay the $60 fee for filing a motion to reconsider. See 705 ILCS 105/27.2a(g) (West 2010).

         ¶ 11 Defendants argued that the Luries did not timely file their amended complaint and they did not timely file the motion to reconsider the order that dismissed their complaint with prejudice. Defendants said, "Illinois law *** requires that this matter be dismissed because the motion to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.