Rojo v. Tunick
| Citation | 2021 IL App (2d) 200191,193 N.E.3d 149,456 Ill.Dec. 181 |
| Decision Date | 29 September 2021 |
| Docket Number | 2-20-0191 |
| Parties | Rene ROJO, Plaintiff-Appellant, v. James D. TUNICK, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Rene Rojo, of Robinson, appellant pro se.
No brief filed for appellee.
¶ 1 Plaintiff, Rene Rojo, retained defendant, James D. Tunick, to represent him in a criminal case. Defendant withdrew as plaintiff's counsel, and the case eventually went to a jury trial, resulting in defendant's conviction. Afterward, plaintiff sued defendant for legal malpractice, claiming in his pro se amended complaint that defendant breached in two respects the fiduciary duty he owed to plaintiff as a client. First, defendant provided deficient representation, leading to plaintiff's conviction. Second, defendant withdrew before the completion of the case, forcing plaintiff to pay for new counsel and refusing to refund any of plaintiff's fees. Plaintiff asked the trial court to appoint counsel to represent him in the legal malpractice action. The court declined to appoint counsel and granted defendant's motion to dismiss plaintiff's amended complaint. There are three issues on appeal: (1) whether the trial court should have appointed counsel to represent plaintiff in his legal-malpractice action, (2) whether a criminal defendant who brings a legal-malpractice action against his criminal defense attorney must always allege that he is "actually innocent" of the criminal charges on which his attorney represented him, and (3) when a cause of action for legal malpractice accrues. We determine that (1) plaintiff was not entitled to appointed counsel for his legal malpractice case, (2) a criminal defendant must allege actual innocence for a legal-malpractice claim asserting that his attorney's deficient performance led to his conviction, but need not so allege for a legal-malpractice claim based on a fee dispute, and (3) a legal-malpractice claim does not accrue until the client incurs damages because of the attorney's breach. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.
¶ 3 In May 2014, plaintiff retained defendant, a criminal defense attorney, to defend him against various drug and weapon offenses. While representing plaintiff, defendant filed numerous pretrial motions and successfully moved to dismiss two of the charges against plaintiff.
¶ 4 In September 2015, after plaintiff's relationship with defendant had deteriorated, defendant moved to withdraw. Plaintiff objected. He agreed that the relationship had deteriorated; "[t]he only reason [he] want[ed defendant] on the case [was] because [he] *** paid [defendant]." The parties discussed whether, if defendant withdrew, plaintiff was entitled to any type of refund. The following exchange was had on that point:
¶ 5 On September 16, 2015, the trial court granted defendant's motion to withdraw. Plaintiff then retained another attorney, the case proceeded to a jury trial, plaintiff was convicted of one of the remaining drug offenses, and the court sentenced him to 16 years’ imprisonment.
¶ 6 In October 2018, plaintiff filed a pro se complaint against defendant for legal malpractice. Plaintiff asserted that his "[c]ivil complaint[ ]" was "based on [t]ort, [c]ontract, or otherwise [l]egal [m]alpractices [sic ] by the [d]efendant in the course of employment." Plaintiff alleged that (1) he and his wife retained the services of defendant, (2) defendant agreed to represent plaintiff until his criminal case was resolved, (3) defendant and plaintiff's wife signed a contract for this representation, to which plaintiff consented, and (4) defendant withdrew before plaintiff's case was resolved. Plaintiff alleged that, in withdrawing before the case was completed, defendant breached his fiduciary duty to plaintiff.
¶ 7 Plaintiff asserted that, because defendant intentionally breached his fiduciary duty, plaintiff was not required to prove actual innocence in the criminal case. As support, plaintiff cited Morris v. Margulis , 307 Ill. App. 3d 1024, 241 Ill.Dec. 138, 718 N.E.2d 709 (1999).
¶ 8 Several months later, plaintiff asked the trial court to appoint counsel to represent him in the action. The trial court denied plaintiff's request. Because plaintiff failed to serve defendant with his complaint, the court continued the case.
¶ 9 Plaintiff eventually served defendant, and then defendant filed two motions to dismiss, one under section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2018) ) and the other under 2-619 of the Code (id. § 2-619).
¶ 10 In the section 2-615 motion, defendant argued that plaintiff failed to allege either (1) any breach of duty that was a proximate cause of injury to defendant or (2) that he was actually innocent of the criminal case charges.
¶ 11 In the section 2-619 motion, defendant asserted that plaintiff failed to bring his suit within the two-year limitations period for legal malpractice actions. Id. § 13-214.3(b) (two-year limitations period); id. § 2-619(a)(5) (). Defendant alleged that three years passed from the date he withdrew from the criminal case (September 16, 2015) to the date plaintiff filed his complaint (October 23, 2018).
¶ 12 The trial court dismissed plaintiff's complaint without prejudice and granted plaintiff time to file an amended complaint.
¶ 13 Plaintiff filed an amended pro se complaint, captioned "Amended Complaint of Legal Malpractice." Plaintiff alleged that defendant, as plaintiff's attorney in the criminal matter, owed plaintiff a fiduciary duty and that defendant breached that duty. The complaint was not divided into separate counts, but there were two distinct breach-of-fiduciary-duty claims.
¶ 14 For the first claim, plaintiff alleged as follows. He retained defendant to represent him in his criminal case. Defendant drew up a contract memorializing the terms, to which plaintiff and his wife agreed. Defendant advised plaintiff that he would "carry out his contract to the fullest" and "complete the [p]laintiff's criminal case." Per the parties’ contract, plaintiff and his wife paid defendant $10,000 for his services. Later, defendant filed a motion to withdraw as plaintiff's counsel. In support of the motion, defendant claimed that his relationship with plaintiff had become antagonistic to the point that he could no longer effectively represent plaintiff. At the hearing on the motion to withdraw, in answer to the trial court's questions, defendant stated that he had charged plaintiff a flat fee for the representation and that, in defendant's view, plaintiff was not entitled to a refund. The trial court allowed defendant to withdraw, and defendant did not refund any part of the $10,000. Additionally, plaintiff paid new counsel $16,000 to $18,000 to represent him going forward.
¶ 15 For his second breach-of-fiduciary-duty claim, plaintiff alleged that, during the time defendant served as his counsel, his representation was deficient. First, defendant "would not communicate with the [p]laintiff concerning his case or promptly complying [sic ] with the plaintiff's requests." Second, defendant "did not fully investigate the [p]laintiff's case." Plaintiff specifically alleged that defendant failed to discover that, although plaintiff was charged with conspiring with "Mr. Wallace" to sell drugs, Mr. Wallace was actually a paid informant for the State. If defendant had ascertained this fact, he would have realized that plaintiff could not be charged with conspiring with Mr. Wallace, because a State informant cannot be a coconspirator. Also, defendant did not investigate all deals that the State made with its witnesses. Third, defendant failed to obtain certain investigative documents. Fourth, defendant had plaintiff pay $2000 for a private investigator, "who did nothing in [the] case." Plaintiff alleged that, if defendant had "researched the [p]laintiff's case, the outcome would have been different."
¶ 16 As in the original complaint, plaintiff cited Morris and asserted that, because defendant "wilfully and intentionally" breached his fiduciary duty, plaintiff was not required to prove that he was actually innocent of the charges in the criminal case. Plaintiff alleged that defendant "wilfully and intentionally breached [his] fiduciary duties when he put in a motion to withdraw [from] [p]laintiff's case after [he] and the [p]laintiff [were] under a contract."
¶ 17 As relief, plaintiff sought compensatory damages of $38,000 and an unspecified amount of punitive damages.
¶ 18 Plaintiff attached to his amended complaint (1) a September 16, 2015, hearing transcript reflecting that the trial court permitted defendant to withdraw; (2) a May 14, 2014, "Receipt and Representation Agreement" in which defendant agreed to represent plaintiff for the sum of $10,000 and acknowledged receipt of a $6670 retainer; and (3) plaintiff's affidavit, in which he claimed that defendant never contacted him for a refund.
¶ 19 The trial court entered an order noting that defendant's motions to dismiss plaintiff's original complaint wer...
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...App. 3d [354,] 359 [292 Ill.Dec. 385, 826 N.E.2d 526 (2005)]." (Emphasis in original.) Rojo v. Tunick , 2021 IL App (2d) 200191, ¶ 34, 456 Ill.Dec. 181, 193 N.E.3d 149.Thus, in Rojo , we held "that the absence of an actual-innocence allegation barred" the legal malpractice claim asserting t......
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...... relationship; (3) a breach of that duty on the part of. defendant/counsel; (4) proximate cause; and (5). damages.'” Rojo v. Tunick, 193 N.E.3d 149,. 156 (Ill.App.Ct. 2021) (quoting Paulsen v. Cochran,. 826 N.E.2d 526, 529 (Ill.App.Ct. 2005)); see also Rocha. ......