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Weisman v. Schiller, Decanto, & Fleck

Case Date: 06/30/2000
Court: 1st District Appellate
Docket No: 1-98-1223

Weisman v. Schiller, Ducanto, & Fleck, No. 1-98-1223

1st District, 30 June 2000

Sixth Division

WENDY WEISMAN,

Plaintiff-Appellant,

v.

SCHILLER, DUCANTO & FLECK,

Defendants-Appellees.

Appeal from the Circuit Court of Cook County

No. 96 L 5565

Honorable Michael Hogan, Judge Presiding.

PRESIDING JUSTICE ZWICK delivered the opinion of the court:

Plaintiff, Wendy Weisman, has appealed the dismissal with prejudice of her complaint seeking recovery for legalmalpractice. On appeal, plaintiff argues that the trial court erred in finding that her claim was barred by the doctrine of resjudicata. We agree.

Plaintiff brought this action against defendant, Schiller, Ducanto & Fleck, Ltd., requesting damages allegedly incurred as aresult of negligent legal representation rendered by defendant in plaintiff's dissolution action against her former husband. Inher complaint, plaintiff alleged that defendant was negligent in (a) failing to fully investigate and discover the nature andextent of the parties' marital property, and (b) failing to prepare the property valuation and property division aspects of thedissolution action for trial. Plaintiff further alleged that due to the defendant's legal malpractice, she did not obtain thedivision of marital property that she would have obtained had the defendant not been negligent in its preparation in thedissolution action. Plaintiff's prayer for relief requested damages in excess of $30,000.

Plaintiff's allegations of professional negligence were predicated upon assertions that defendant failed to perform adequatediscovery of the law practice of her former husband, a plaintiff's personal injury attorney with a multi-million dollarincome. The record indicates that the defendant law firm received financial statements from plaintiff's former husbandwhich reflected a net worth of $4,500,000, but did not place any value for the husband's law practice. However, defendantdid not conduct timely discovery to obtain the documents required to determine the full extent of his finances and assets. Inaddition, defendant never deposed the plaintiff's former husband prior to the discovery closing date set by the trial court.Shortly after the close of discovery, plaintiff discharged defendant and hired new counsel.

In dismissing plaintiff's legal malpractice complaint, the trial court found that because plaintiff had raised defendant'snegligence as an affirmative defense to a fee petition brought pursuant to