Brant v. Rosen

869 N.E.2d 232, 373 Ill. App. 3d 720
CourtAppellate Court of Illinois
DecidedApril 27, 2007
Docket5-04-0516
StatusPublished
Cited by14 cases

This text of 869 N.E.2d 232 (Brant v. Rosen) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brant v. Rosen, 869 N.E.2d 232, 373 Ill. App. 3d 720 (Ill. Ct. App. 2007).

Opinion

JUSTICE STEWART 1

delivered the opinion of the court:

Two of the defendants, Rick Rosen (Rosen) and Rosen Law Firm, EC. (law firm), appeal from the St. Clair County circuit court’s denial of their motion to dismiss the plaintiff Ivan Brant’s complaint pursuant to the doctrine of forum non conveniens. The defendants assert that St. Clair County, which is the county where Rosen resides and where his law firm is located, is an inappropriate forum for the plaintiffs professional negligence and fraud claims arising from the defendants’ representation of the plaintiff. We affirm.

BACKGROUND

The plaintiff filed a six-count complaint alleging professional negligence and fraud against Rosen, the law firm, and the third defendant, Dwight Hardin (Hardin), who is employed as a consultant by the law firm. In the complaint, the plaintiff alleged that he retained Rosen and the law firm to represent him in his claim for damages against his employer, Union Facific Railroad Company, for injuries he received during the course of his employment. The plaintiff alleged that both Rosen and Hardin told him that they were licensed, practicing attorneys, even though Hardin was not an attorney. The plaintiff alleged that the defendants negligently “instructed and counseled” him to settle his case against the railroad for less than its fair value, failed to conduct an adequate investigation into the liability and damage evidence, and settled his case without filing suit or conducting any discovery and before he attained maximum medical improvement. The plaintiff alleged that he received substantially less in settlement for his case than it was worth and, therefore, “suffered significant damages in the form of inappropriate compensation for past and future medical expenses, past and future wages, pain, suffering, disability[,] and disfigurement.”

In addition to the professional negligence claims, the plaintiff also claimed that each defendant was guilty of fraud, in that Rosen, individually and through the law firm, and Hardin made several untrue statements of material fact. Those alleged statements included that Hardin was an attorney qualified to represent the plaintiff and that the plaintiff was required to accept the railroad’s settlement offer of $150,000 or be forced to accept $20,000 and relocate to Utah as a security guard. The plaintiff also alleged the defendants had misrepresented that his settlement included medical coverage for him and his family and that they had fully investigated the case before recommending the settlement.

In response to the plaintiff’s first amended complaint, the defendants filed a motion based upon forum non conveniens, contending that the complaint should be dismissed under the Illinois Supreme Court decision in Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 797 N.E.2d 687 (2003), “as having little or no connection with the State of Illinois.” In support of the motion, the defendants attached Rosen’s and Hardin’s affidavits and filed a memorandum of law. The defendants alleged that certain facts supported a dismissal, including the following: that the plaintiff was a resident of Scott City, Missouri; that the plaintiffs work injury occurred near Osage City, Missouri; that all the witnesses to the plaintiffs work injury lived in Missouri; that the plaintiffs medical treatment and physical therapy occurred in Missouri; that all the plaintiff’s treating physicians were located in or near Cape Girardeau, Missouri; that one of the defendants, Hardin, was a resident of Missouri; that Rosen never met with the plaintiff or any representative of the railroad in Illinois; and that Hardin never met anyone from the railroad in Illinois.

In his affidavit, Rosen averred that he was licensed to practice law in both Illinois and Missouri and that his office was located in St. Clair County, Illinois. Rosen stated that he and the law firm concentrated their practice “in the representation of railroad workers in claims brought under the Federal Employers!”] Liability Act (FELA) [(45 U.S.C. §51 et seq. (2000))].” Rosen admitted that the plaintiff retained him as his attorney in a potential claim arising from an injury the plaintiff received while working for the railroad. Rosen also stated that Hardin was an FELA consultant who worked for him and several other law firms and that he retained Hardin to assist him “in negotiating a settlement” of the plaintiffs claim against the railroad. According to Rosen’s affidavit, “[a]ll of the witnesses, medical records, and other evidence” regarding the plaintiffs work injury, treatment, and recovery were located in Missouri. Rosen averred that he did not meet with the plaintiff or anyone from the railroad in Illinois.

In Hardin’s affidavit, he stated that he lived in St. Louis, Missouri, that he was the president of the Organized Rail Labor Association, Inc. (ORLA), and that ORLA’s office was in his home. Hardin stated that, since 1982, he had worked with FELA lawyers from various parts of the United States. Hardin averred that most of his contacts with the plaintiff were by phone from his home and that when he met the plaintiff, “those meetings occurred primarily in St. Louis and Scott City, Missouri.” Additionally, Hardin stated that he had several meetings with representatives from the railroad, all of which occurred in Missouri.

In their memorandum in support of the motion to dismiss, the defendants argued that the case should be dismissed in favor of a forum in Missouri. The defendants did not provide any information about the location within Missouri of either Scott City or Osage City, nor did they provide the trial court with any information about the relative congestion of the court systems in St. Clair County or any other potential forum.

The plaintiff responded that Rosen resided in St. Clair County and that he and his law firm maintained an office in St. Clair County. The plaintiff alleged that “all documentary evidence relevant to the legal malpractice case is likewise located in St. Clair County, at the offices of attorney Rosen in O’Fallon, Illinois,” and that the most critical evidence would consist of Rosen’s testimony and the file that he generated and maintained in St. Clair County. The plaintiff stated that the documentary evidence concerning the railroad’s liability to the plaintiff was located at the railroad’s attorney’s office in St. Clair County.

In his response, the plaintiff stated, “[T]he utter absurdity of suggesting that [the] plaintiff be forced to litigate his claim against Mr. Rosen and his law firm in a county other than St. Clair is demonstrated by the fact that [the] plaintiff hired Mr. Rosen and his law firm, both of which are located in St.

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Cite This Page — Counsel Stack

Bluebook (online)
869 N.E.2d 232, 373 Ill. App. 3d 720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brant-v-rosen-illappct-2007.