Appellate & Other Reported Decisions

 A.  Illinois Cases

In re marriage of: Janet Kellogg Petersen and Kevin Petersen, (No. 110984). Justice Charles E. Freeman wrote the court's 6-0 opinion.

Kevin Petersen and Janet Kellogg Petersen married in 1983 and had three sons before their divorce in 1996, the opinion said. Their settlement reserved the issue of college expenses for future consideration and Janet Kellogg Petersen asked a Cook County circuit judge to award her past and future college expenses for all three sons.

The circuit court ordered the father to pay 75 percent of the past and future college expenses for all three sons, which totaled more than $273,000.

On appeal, the 1st District Appellate Court said the order constituted a modification to the divorce decree, so Kevin Petersen was not liable for expenses that predated Janet Kellogg Petersen's petition.

The Supreme Court remanded the case back to the circuit court with orders to recalculate Kevin Petersen's contributions, excluding expenses incurred before the petition was filed. The circuit court may factor in Janet Kellogg Petersen's depleted finances due to college expenses, the opinion says.

"Under the plain language of the statute, a retroactive modification is limited only to those installments that date back to the filing date of the petition for modification," the opinion says. "In light of the statutory language, the appellate court therefore correctly held that support could not be ordered for expenses which predate the filing of Janet's petition."

This case is the first time the Supreme Court has addressed retroactive college contributions since the late 1970s, Fernholz said.

Attorney Philip Nathanson represented Kevin Petersen before the Supreme Court. Nathanson said the case resolves a dispute between various appellate court cases.

"There were some appellate cases going one way and some going another way, so the change is the Supreme Court has now definitively said this is the way it's going to be," Nathanson said.


Lozman v. Putnam, 328 Ill.App.3d 761 (1st Dist. 2002).  Our firm represented one of two partners who began an electronic trading business.  The suit, seeking in excess of $100,000,000, alleges that my client’s former partner diverted the corporate opportunities of their original venture, which opportunities blossomed into Archipelago, the nation's first totally open all-electronic stock exchange trading 100% of listed and OTC stocks in the U.S.  The Appellate Court, in its decision, dealt with the potential liability of that electronic stock exchange.

Fabricare Equipment Credit Corporation v. Bell, Boyd & Lloyd, 328 Ill.App.3d 784 (1st Dist. 2002).   This legal malpractice case alleged that the defendant law firm failed to seek a jury for the plaintiff’s legal claims, and instead pursued only equitable claims in the Chancery Division.  The Appellate Court affirmed the Circuit Court’s dismissal of the case.  

Weisman v. Schiller, DuCanto & Fleck, Ltd., 314 Ill. App. 3d 577 (1st Dist. 2000).   Our firm won this appeal involving a legal malpractice case against my client’s former divorce attorneys.  The issue on appeal was whether a divorce client may contest in an attorney fee hearing the reasonableness of the attorney fees sought by her former lawyers without being precluded on res judicata grounds from later bringing a claim for legal malpractice against those attorneys. 

Glassman v. St. Joseph Hospital, et al., 259 Ill.App.3d 730, 631 N.E.2d 1186, 197 Ill. Dec. 727 (1st Dist. 1994).  After the jury verdict discussed above in the trial section, both sides filed post-trial motions, which were denied. We appealed for the plaintiffs and the defendant hospital cross-appealed on liability. The appellate court affirmed the jury verdict in all respects. The lengthy opinion deals with many of the evidentiary issues raised. The most significant issue was whether a defendant hospital was liable for all of the plaintiff's brain damage when the jury determined that some of the brain damage was wrongfully caused and some was not. For the first time an appellate court ruled that a jury may apportion indivisible brain damage using the testimony of all of the experts as a rough basis to approximate the damage that was wrongfully caused.

Varilek v. Mitchell Engineering Co., 200 Ill. App. 3d 649, 558 N.E. 2d 365 (lst Dist. 1990), appeal denied, 133 Ill. 2d 574 (1990). The plaintiff was an ironworker who fell off the roof of a building containing excessively oiled roof panels. We were retained by the plaintiff's trial attorney. The jury found for the plaintiff on a theory of strict liability and determined that the damages were $3.9 million dollars. However, the jury reduced that amount because of the plaintiff's alleged assumption of risk and/or misuse."  On appeal, I wrote the brief and presented the oral argument for the plaintiff. The Appellate Court awarded the plaintiff a new trial on damages only and eliminated any comparative fault defense at that new trial by entering a judgment n.o.v. on the issues of "assumption of risk and/or misuse.”  The defendant's petition for leave to appeal to the Supreme Court of Illinois was denied. The case was settled on remand.

Brown v. Tenney, 125 Ill. 2d 348, 532 N.E. 2d 230, 57 U.S.L.W. (1988).   We represented the minority shareholder in this case of first impression in Illinois.  I sought to establish "double derivative" suits in Illinois. The Circuit Court dismissed the suit for lack of standing on the ground that the plaintiff was only a shareholder in a holding company. The plaintiff was not a shareholder in the wholly-owned subsidiary that was damaged by the defendants' conduct. The Circuit Court rejected my "double derivative" theory.  On appeal, the Appellate Court adopted the "double derivative" theory. Brown v. Tenney, 155 Ill. App. 3d 605, 55 U.S.L.W. 2618 (1987). Thereafter, the Supreme Court of Illinois granted an appeal and ruled that Illinois should recognize "double derivative" suits and therefore affirmed the Appellate Court. 

Ruklick v. Julius Schmid, Inc., 169 Ill. App. 3d 1098, 523 N.E. 2d 1208 (1st Dist. 1988). Our firm represented the plaintiffs on appeal in this obstetrical malpractice and product liability case. The case involved an I.U.D. and a subsequent infection. Plaintiff underwent emergency hysterectomy surgery as a result of the untreated infection. Another law firm filed suit in 1981 and thereafter voluntarily dismissed that suit in 1985. I refiled the suit in 1986. The Circuit Court dismissed the suit on statute of limitations grounds. The Appellate Court reversed that dismissal and remanded the case for trial. I reached a settlement with the defendants after that remand.

Dillie v. Bisby, 106 Ill.2d 487, 478 N.E.2d 1338 (1985). We represented an  attorney in this case who failed to place a summons for service for thirteen months after filing suit.  I obtained a voluntary dismissal  to which the defendant objected.  The defendant appealed the voluntary dismissal. My associate argued in the first Appellate Court case. That appeal was dismissed. Dillie v. Bisby, 121 Ill. App. 3d 559, 459 N.E.2d 1097 (3rd Dist. 1984). The defendant petitioned the Supreme Court of Illinois for leave to appeal. That petition was allowed, and I argued that appeal in the Supreme Court. The issue in the Supreme Court was jurisdiction to review voluntary dismissal orders. The Supreme Court ruled that appellate jurisdiction did exist to review such orders and remanded the case back to the Appellate Court.  The Appellate Court later ruled that a trial judge could consider the lack of diligence in service before ruling on a plaintiff's motion for voluntary dismissal. Dillie v. Bisby, 136 Ill. App. 3d 170, 483 N.E.2d 307 (3rd Dist. 1985).

B. Florida Cases

J.M. Woolems, Inc. v. Kastil, 461 So.2d 954 (Fla. Dist. Ct. App. 1984). After full briefing and oral argument, the District Court of Appeal summarily affirmed the trial judge's judgment (See discussion of the trial above).

C. Federal Cases

Carmel v. Clapp & Eisenberg, P.C., 960 F.2d 698 (7th Cir. 1992).  We represented the trustee in bankruptcy in this legal malpractice action. The bankrupt had retained the defendant attorney to negotiate and draft agreements regarding coal leases. The leases eventually proved valueless. My former partner, Richard K. Wray, represented the trustee at the jury trial in U.S. District Court in Chicago.  We were retained to prosecute the appeal from the adverse jury verdict for the defendant.

Thompson v. Duke, 882 F.2d 1180 (7th Cir. 1989), cert. den., 110 S.Ct. 2167 (1990).  We represented the plaintiff in this civil rights case. The plaintiff was a parolee who was arrested for burglary. He was found not guilty of burglary but returned to jail. Thereafter, one of the other inmates severely beat him. The District Court entered summary judgment for the defendants. The Court of Appeals affirmed.

Dougas v. Stallings, 870 F.2d 1242 (7th Cir. 1989). We represented the plaintiffs in this medical malpractice case involving a severely retarded teenager.  The occurrence took place in Indiana. The Indiana statute of limitations barred the suit before we were retained. Accordingly, the only altemative available was to challenge the constitutionality of the statute. The District Court granted summary judgment for the defendants on that issue. The Court of Appeals affirmed.

Schlifke v. Seafirst Corp., 866 F.2d 935, Fed. Sec. L. Rep.¶94,174 (7th Cir. 1989). We represented the plaintiffs in this securities case involving an oil and gas limited partnership investment. The District Court entered summary judgment for the bank that financed the deal. The Court of Appeals affirmed. We settled the case with the oil and gas partnership and the individual defendants.

F/S Airlease II, Inc. v. Simon, 844 F. 2d 99 (3rd Cir. 1988).   On appeal, the District Court affirmed liability but vacated the amount of the award. FIS Airlease II, Inc. v. Simon, 84 B. R. 389 (W. D. Pa. 1986). On further appeal, the Court of Appeals reversed on liability grounds.



 A. Illinois Cases

 Rivas v. Westfield Homes Of Illinois, Inc., 295 Ill.App.3d 304 (2nd Dist. 1998)(suit for personal injuries that occurred at home inspection).  

Seder v. Arlington Park Race Track Corp., 134 Ill.App.3d 512, 481 N.E.2d 9 (1st Dist. 1985)(suit to recover racetrack winnings).

Dugan v. Sears, Roebuck & Co., 113 Ill.App.3d 740, 454 N.E.2d 64 (1st Dist. 1983)(product liability suit involving a lawnmower accident).

Van Jacobs v. Parikh, 97 Ill.App.3d 610 (1st Dist. 1981). In this motorcycle accident case we represented the manufacturer defendant seeking indemnity or contribution from the negligent driver.

B. Federal Cases

Zakarian v. Prudential Ins. Co., 652 F. Supp. 1126 (N.D. Ill. 1987)(suit on life insurance policy; suicide defense).

Zakarian v. Prudential Ins. Co., 626 F. Supp. 420 (N.D. Ill. 1984).

Lichter v. Paine, Webber, 570 F. Supp. 533 (N.D. Ill. 1983)(suit on brokerage agreement).

C. Arkansas

Younger v. Thomas International Co., 275 Ark. 327, 629 S. W. 2d 294 (1982):  We were one of three co-counsel for defendants. The Supreme Court of Arkansas affirmed the trial court's judgment in favor of our client. (See trial report above).