A state appeals panel has revived a legal malpractice suit, overturning a Cook County judge’s determination the original plaintiff’s death should halt the proceedings, and a trust could not continue the case in his place.
The decedent, Robert Seifert, sued law firm Sneckenberg, Thompson & Brody, along with Emilie Kaplan, in conjunction with a dispute over a property in Barrington Hills. According to court documents, Seifert owned debt in the property, while his ex-wife, Debra, owned the equity. A sale agreement fell through, after which Robert and Debra retained the Sneckenberg firm as defense counsel.
A second sale agreement with the same buyer fell through after the buyer refused to pay a title fee. After that, the Sneckenberg firm advised Robert and Debra of a conflict of interest and withdrew its representation. The parties dismissed their claims, the bank foreclosed and a settlement resulted in the property being sold to a third party.
Seifert filed his lawsuit in January 2017, accusing Sneckenberg, Thompson & Brody of malpractice in his dispute with the potential buyer, bringing the complaint in his own name and as property manager of the Debra Duffy Seifert Living Trust. He sought recovery of more than $40,000 in legal fees and more than $200,000 in compensatory damages for lost rent.
In his second amended complaint, Seifert alleged Sneckenberg, Thompson & Brody allowed the lawsuit to carry on for years while the potential buyer occupied the property without paying rent. The law firm then filed a third-party complaint for contribution against attorneys Mark Becker and Charles Silverman, the latter of whom represented Seifert in the malpractice suit.
In May 2019, Cook County Judge Margaret Brennan granted Becker’s motion to dismiss the third-party complaint, but denied Silverman’s identical request because there were questions about when Seifert retained him as counsel.
Seifert died on Dec. 8, 2019, after which the Robert J. Seifert Trust moved to take his place as party plaintiff. Judge Brennan denied that request in February 2020, and in August she denied the Debra Duffy Trust’s motion to vacate the dismissal for want of prosecution and to be substituted as plaintiff.
Both trusts appealed to the Illinois First District Appellate Court, challenging the judge’s denial of the motion for the Duffy Trust to substitute as plaintiff and the denial of Silverman’s motion to dismiss the third-party complaint.
First District Appellate Justice Eileen Burke wrote the panel’s opinion, issued Feb. 9; Justices Robert Gordon and David Ellis concurred.
The panel first rejected Sneckenberg, Thompson & Brody’s motion to dismiss the appeals, then turned to the argument on appeal that the Survival Act allows legal malpractice claims to be maintained by a decedent’s representative. The law firm argued Seifert’s assets were depleted, which means his trust lacked standing to pursue the claims.
“Once Robert died, the power to make decisions for the property, including in the malpractice action, reverted back to the principal, the Duffy Trust, and its then-trustee, Debra,” Burke wrote, leading it to determine Judge Brennan wasn’t wrong to deny the Seifert trust’s motion to substitute.
However, the panel continued, although Brennan “explicitly stated that the Duffy Trust was the proper plaintiff,” she still denied that trust’s motion to substitute based only in its “lack of due diligence.” That ruling, the panel said, was “overly harsh based on the circumstances presented” and explained the Duffy Trust wasn’t lax but “merely waiting” for Judge Brennan to rule before filing its requests.
“Plaintiff’s counsel indicated that the delay — to the extent that there was one — was based on obtaining Debra’s assent to substitute as party plaintiff and sign the conflict waiver,” Burke wrote. “The record does not reflect any intentional disregard of any directions of the court.”
Since Seifert originally sued under his own name for use of the Duffy Trust, and since that trust owned the property and suffered the legal damage alleged in the malpractice claim, Burke wrote, “the action did not abate at Robert’s death, and the real party in interest, the Duffy Trust, was permitted to file its motion to substitute upon suggesting the death of record.”
After finding Judge Brennan abused discretion, the panel remanded the case with instructions to vacate her dismissal for want of prosecution and substituting the Duffy Trust as plaintiff.
Sneckenberg, Thompson & Brody were represented in the matter by Rebecca Rothmann, of the Chicago firm of Wilson Elser Moskowitz Edelman & Dicker.