Court of Appeals of Illinois, First District, Third Division
DEREK LURIE and STEVEN LURIE, Individually and d/b/a American Escrow, LLC, Plaintiffs-Appellants,
PHILIP S. WOLIN, Individually and d/b/a Wolin, Kelter & Rosen, Ltd., Defendants-Appellees.
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.
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
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
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
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