Brant v. Rosen

NO. 5-04-0516

N O T IC E

Decision filed 04/27/07. The text of

IN THE

this dec ision m ay b e changed or

corrected prior to the filing of a

APPELLATE COURT OF ILLINOIS

P e t i ti o n for Re hea ring or the

disposition of the same.

FIFTH DISTRICT

________________________________________________________________________

IVAN BRANT, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) St. Clair County.

)

v. ) No. 03-L-418

)

RICK ROSEN and ROSEN LAW )

FIRM, P.C., )

)

Defendants-Appellants, )

)

and )

)

DWIGHT HARDIN, ) Honorable

) Lloyd A. Cueto,

Defendant. ) Judge, presiding.

________________________________________________________________________

JUSTICE STEWART1 delivered the opinion of the court:

Two of the defendants, Rick Rosen (Rosen) and Rosen Law Firm, P.C. (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 plaintiff's 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

1

Justice McGlynn participated in oral argument. Justice Stewart was later substituted

on the panel and has read the briefs and listened to the audiotape of oral argument.

1

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 Pacific 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

2

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

plaintiff's work injury occurred near Osage City, Missouri; that all the witnesses to the

plaintiff's work injury lived in M issouri; that the plaintiff's 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 plaintiff's claim

against the railroad. According to Rosen's affidavit, "[a]ll of the witnesses, medical records,

and other evidence" regarding the plaintiff's 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

3

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. Clair County." (Emphasis in original.) The plaintiff argued

that the defendants' suggestion that a legal malpractice case could not be conveniently

prosecuted in the very county where the defendant lawyer and his law firm resided and where

the alleged negligent representation was rendered "defies credulity." Finally, the plaintiff

stated that in order for the defendants to sustain their motion, they were required to

demonstrate that his choice of forum substantially inconvenienced them, "a burden which

[the] defendants could never meet under these circumstances."

4

The trial court conducted a hearing on the motion to dismiss, during which the

defendants' attorney argued that the case had no connection to the plaintiff's chosen forum,

St. Clair County, other than the facts that Rosen lived there and his law office was located

there. The defendants' attorney informed the court that the plaintiff lived in Scott City,

Missouri, "which is right outside Cape Girardeau," Missouri, and that all the plaintiff's

medical treatment for the injuries he received was "in Cape Girardeau or the environs

thereof." When the trial court asked if the defendants believed that everything happened in

Missouri, the attorney responded affirmatively, stating that there "were no contacts at all in

Illinois[,] including no meetings" with either Rosen or Hardin.

The plaintiff's attorney argued that the case pending in St. Clair County was a legal

malpractice case "against Rick Rosen[,] who represented or who allegedly represented a

railroad worker who settled this case for about two cents on the dollar [and] sold his job in

the process." He asserted that all the relevant evidence and witnesses were located in St.

Clair County and that the only relevant incidents occurring outside St. Clair County were that

the plaintiff's work injury occurred in Missouri and that Hardin misrepresented himself as

a lawyer and talked the plaintiff into signing settlement papers in Missouri. He further

claimed that the location of the work injury was not critical because the railroad admitted

liability for the plaintiff's work injury.

The defendants' attorney responded that because the plaintiff's complaint alleged legal

malpractice, the facts of the underlying lawsuit would be critical. The defendants' attorney

argued that all the witnesses to the underlying accident were in Missouri. She did not name

any particular witness, state the residence or work address of any particular witness, or

explain the possible content of any particular witness's likely testimony. She argued that both

the private- and public-interest factors overwhelmingly favored a transfer to Missouri, but

she did not delineate the nature of any private or public interest.

5

The trial court denied the motion. The defendants filed a timely petition for leave to

appeal, which this court denied. The defendants then filed a petition for leave to appeal to

the Illinois Supreme Court. On March 30, 2005, the supreme court issued an order vacating

this court's denial of leave to appeal and ordering that the defendants be granted leave to

appeal. Brant v. Rosen, 214 Ill. 2d 527, 824 N.E.2d 280 (2005).

ANALYSIS

The defendants argue that the trial court abused its discretion in denying their motion

to dismiss based on forum non conveniens. The Illinois courts have developed a significant

body of law concerning the rules that apply to pretrial motions to dismiss pursuant to the

doctrine of forum non conveniens. The basic rules are rarely disputed. However, each forum

non conveniens case is unique and fact-intensive. Satkowiak v. Chesapeake & Ohio Ry. Co.,

106 Ill. 2d 224, 228, 478 N.E.2d 370, 372 (1985). The doctrine of forum non conveniens

is flexible, requires an evaluation of the total circumstances rather than a concentration on

any single factor (Peile v. Skelgas, Inc., 163 Ill. 2d 323, 336-37, 645 N.E.2d 184, 190

(1994)), and is grounded in considerations of fundamental fairness and sensible and effective

judicial administration (Dawdy, 207 Ill. 2d at 171, 797 N.E.2d at 693). The trial court has

broad discretion in determining whether the particular circumstances require a transfer, and

its decision will be reversed only if it is shown to be an abuse of discretion. Bland v. Norfolk

& Western Ry. Co., 116 Ill. 2d 217, 223, 506 N.E.2d 1291, 1293 (1987). The trial court

abuses its discretion in balancing the relevant forum non conveniens factors only where no

reasonable person would take the view adopted by the court. Langenhorst v. Norfolk

Southern Ry. Co., 219 Ill. 2d 430, 442, 848 N.E.2d 927, 934 (2006).

By filing a forum non conveniens motion, a defendant admits that the plaintiff's

chosen venue is technically proper but asks the court to decline jurisdiction in favor of

another forum that can better serve the convenience of the parties and the ends of justice.

6

Dawdy, 207 Ill. 2d at 171-72, 797 N.E.2d at 693. The Illinois venue statute provides,

"[E]very action must be commenced (1) in the county of residence of any defendant who is

joined in good faith and with probable cause for the purpose of obtaining a judgment against

him or her and not solely for the purpose of fixing venue in that county[] or (2) in the county

in which the transaction or some part thereof occurred out of which the cause of action

arose." 735 ILCS 5/2-101 (West 2004). In the case at bar, venue is proper in St. Clair

County under either provision of the statute. Clearly, Rosen and the law firm are both

residents of St. Clair County and were joined in good faith. Additionally, according to the

allegations of the complaint, at least some of the transactions from which the causes of action

arose occurred in St. Clair County, because that is the location from which Rosen and his law

firm represented the plaintiff on the underlying FELA claim.

The Illinois Supreme Court has repeatedly noted that although the forum non

conveniens doctrine gives the trial court broad discretion to dismiss a case in favor of a more

convenient forum, that discretionary power should not be used to deny a plaintiff his choice

of forum unless exceptional circumstances require a trial in a more convenient forum.

Langenhorst, 219 Ill. 2d at 442, 848 N.E.2d at 934. The courts recognize that our legislature

gives each plaintiff a statutory right to choose the venue for the vindication of his rights and

that the plaintiff's interest in making that choice is "substantial." First American Bank v.

Guerine, 198 Ill. 2d 511, 517, 764 N.E.2d 54, 58 (2002).

The plaintiff's substantial interest in choosing the location for his lawsuit "receives

somewhat less deference when neither the plaintiff's residence nor the site of the accident or

injury is located in the chosen forum." Guerine, 198 Ill. 2d at 517, 764 N.E.2d at 59. When

the plaintiff chooses the place where he lives to pursue his cause of action, the courts

reasonably assume that the choice is convenient. Guerine, 198 Ill. 2d at 517, 764 N.E.2d at

59. Likewise, when the plaintiff chooses the site of the accident or injury, the courts consider

7

that choice to be convenient because "the litigation has the aspect of being 'decided at home.'

" Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59 (quoting Brummett v. Wepfer Marine, Inc.,

111 Ill. 2d 495, 500, 490 N.E.2d 694, 697 (1986)). In the instant case, the plaintiff's choice

of forum is the site of the injury he alleged in his complaint–that he received an inadequate

amount in settlement as a result of the defendants' professional negligence and fraud.

Therefore, in this case, the plaintiff's choice of forum is entitled to substantial deference. As

the Illinois Supreme Court stated in Brummett:

"There is clearly an overriding element of essential fairness in condoning the choice

by an injured party of the forum in which the injury was suffered. It also makes for

sensible and effective judicial administration for a claim to be pursued in the forum

where it arose. Where the plaintiff files his claim at the situs of his injury[,] there is

a clear nexus with the forum, and the plaintiff cannot be charged with forum

shopping." Brummett, 111 Ill. 2d at 500, 490 N.E.2d at 697.

The defendants argue that we should focus on the site of the underlying injury, which

is the work injury, instead of the injury alleged in the pending complaint. That argument is

without merit. The site of the underlying work injury is only tangentially relevant to the

plaintiff's current cause of action, because the railroad did not contest liability and the

plaintiff's claim was settled prior to filing any lawsuit. Further, the defendants make no claim

that liability could have been a contested issue in the FELA claim. The underlying work

injury is only relevant on the issue of damages. The evidence in this case will likely focus

on the defendants' alleged professional negligence and fraudulent representations, not on the

railroad's conduct in causing the plaintiff's underlying work injury.

Given the deference accorded the plaintiff's chosen forum, the burden is on the

defendants to show that the relevant forum non conveniens factors strongly favor a transfer

to another forum. Langenhorst, 219 Ill. 2d at 444, 848 N.E.2d at 935. In order to sustain

8

their burden of proof, the defendants were required to show that the plaintiff's chosen forum

was inconvenient to them and that another forum was more convenient to all the parties.

Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59. The bedrock of any forum non conveniens

analysis is the consideration of the balance between the private-interest factors affecting the

convenience of the litigants and the public-interest factors affecting the administration of the

courts. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S.

Ct. 839, 843 (1947); Bland, 116 Ill. 2d at 223-24, 506 N.E.2d at 1294.

The private-interest factors to be considered include the following: (1) the

convenience of the parties, (2) the relative ease of access to sources of testimonial,

documentary, and real evidence, and (3) all the other practical problems that make the trial

of a case easy, expeditious, and inexpensive. Langenhorst, 219 Ill. 2d at 443, 848 N.E.2d at

935. The public-interest factors include these: (1) the interest in deciding controversies

locally, (2) the unfairness of imposing the expense of a trial and the burden of jury duty upon

residents of a forum with little connection to the litigation, and (3) the administrative

difficulties presented by adding litigation to congested court dockets. Langenhorst, 219 Ill.

2d at 443-44, 848 N.E.2d at 935. "These factors are relevant considerations for both

interstate and intrastate forum non conveniens analysis." Langenhorst, 219 Ill. 2d at 444, 848

N.E.2d at 935. Unless the balance of all these factors strongly favors a defendant's

alternative choice of forum, the plaintiff's choice of forum should rarely be disturbed. Gulf

Oil Corp., 330 U.S. at 507-08, 91 L. Ed. at 1062, 67 S. Ct. at 842-43; Langenhorst, 219 Ill.

2d at 444, 848 N.E.2d at 935. Applying these factors to the case at bar, we find that the

defendants have failed to demonstrate that the balance of private- and public-interest factors

strongly favors a transfer to a forum in Missouri.

Considering the first private-interest factor, we have very little specific evidence about

the convenience of the parties other than the facts that Rosen and his law firm reside in St.

9

Clair County, the plaintiff's chosen forum, and that Hardin lives and works in St. Louis,

Missouri. Although the plaintiff does not live in St. Clair County, the defendants cannot

prevail on their motion by arguing that the plaintiff is inconvenienced by his own choice of

forum. See Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59. Clearly, Rosen and his law firm

are not inconvenienced by the filing of this lawsuit in their home county.

Likewise, we find little support for the defendants' motion in the second private-

interest factor–the relative ease of access to sources of testimonial, documentary, and real

evidence. Although defendants who assert the right to transfer a case based upon forum non

conveniens routinely provide the court with affidavits from witnesses detailing their difficulty

in attending a trial in the plaintiff's chosen forum, the defendants in this case failed to attach

a single affidavit from a witness asserting that it would be inconvenient to attend a trial in

St. Clair County. The only affidavits submitted were from Rosen and Hardin, neither of

whom claimed to be inconvenienced by a trial in St. Clair County.

We also note that it is difficult to assess this factor when the defendants failed to

provide the trial court with any specific information about the location of any M issouri

county. As a part of their proof, defendants asserting a right to transfer venue should provide

the court with the distances between the chosen and proposed forums and the locations of

witnesses and other evidence. This is necessary so that the court can assess the relative ease

of access to sources of proof, as required by this factor. None of this information was

provided in this case.

The defendants alleged in their motion that all the witnesses to the plaintiff's work

injury "reside in Missouri." Even if we agreed with the defendants that the proof of the

underlying work injury were a pivotal factor, which we do not, the defendants did not

provide the trial court with the names, addresses, or likely testimony of any particular witness

to the work injury. The trial court was not free to speculate about the possible inconvenience

10

to a group of unnamed witnesses who would have to travel from unknown locations in

Missouri to give unspecified testimony in St. Clair County. See Bird v. Luhr Brothers, Inc.,

334 Ill. App. 3d 1088, 1094, 779 N.E.2d 907, 914 (2002).

The defendants alleged that the plaintiff received medical treatment for his work

injury from hospitals and physicians in Jefferson City and Cape Girardeau, Missouri, and that

he received physical therapy "in Missouri." The defendants provided no information,

however, about the relative ease or inconvenience of obtaining the testimony of medical

personnel who work in Jefferson City, Cape Girardeau, and possibly other Missouri cities.

It is not clear from the record how many potential witnesses live or work in Jefferson City,

Cape Girardeau, or some other location within Missouri, the likely content of their testimony,

or how critical that evidence would be to the defense of this professional negligence and

fraud case. The trial court was not free to speculate about those matters, and neither are we.

The defendants next argue that we should consider "the witnesses whose testimony

might bear upon the settlement of the underlying FELA claim." The defendants assert that

the issue of whether they could have settled the plaintiff's claim for more money "will

implicate testimony from the representatives of the railroad," who they claim are "situated

in Missouri, not Illinois." In support of that allegation, the defendants cite to the affidavits

of Rosen and Hardin. In his affidavit, Rosen averred, "All of the witnesses, medical records,

and other evidence regarding Mr. Brant's injury, treatment, and recovery are located in

Missouri." In Hardin's affidavit, he averred that he had "several meetings with a Union

Pacific representative regarding Mr. Brant's claim" and that all those meetings "occurred in

Missouri." The defendants cite to no other evidence in the record to support this argument,

and we find nothing else in our review of the record. The defendants were required to

present something more than a general assertion that they would call "representatives of the

railroad" who are "situated in Missouri." Simply put, the defendants' conclusions add

11

nothing to our resolution of this case because it is entirely unclear which witnesses the

defendants would call to testify about the settlement value of the underlying FELA claim,

where those witnesses reside, or whether they would suffer any inconvenience if required to

testify at a trial in St. Clair County.

The defendants also argue that if it becomes necessary for the jury to view the scene

of the plaintiff's work injury, it would be more convenient for a Missouri jury to accomplish

that. We reject this argument as unworthy of any weight. First, the defendants do not

explain why it would be necessary to their defense for the jury to see the location of the

plaintiff's work injury. They do not allege that the scene is relevant to the settlement value

of the FELA claim, and they do not allege that the scene is currently in the same condition

as it was on the date of the work injury. Second, the railroad settled the plaintiff's claim

before any lawsuit was filed and did not contest liability. Finally, the defendants do not

explain how a jury view of the scene of the work injury will aid the jurors in deciding the

plaintiff's professional negligence and fraud claims. We acknowledge that the decision to

allow a jury to view the scene of an injury is within the broad discretion of the trial court.

Dawdy, 207 Ill. 2d at 179, 797 N.E.2d at 697. However, for purposes of this appeal, we do

not find any abuse of discretion in the trial court's denial of the defendants' motion based

upon this factor.

Next, we address the third private-interest factor–all the other practical problems that

make the trial of a case easy, expeditious, and inexpensive. The defendants argue that if this

case is prosecuted in St. Clair County, Illinois, there is no subpoena power available to secure

the attendance in Illinois of the plaintiff's medical providers but that both Rosen and Hardin

are subject to compulsory process in Missouri. However, since we have already found that

the defendants did not present reliable information about the nature of any Missouri witness's

testimony, we give that factor very little weight.

12

The defendants further argue that if the railroad had not agreed to settle the plaintiff's

FELA claim before a lawsuit was filed, the plaintiff would not have been able to file the

FELA lawsuit in Illinois, "given the lack of venue here." The defendants are wrong. State

courts have concurrent jurisdiction with federal courts over FELA actions. 45 U.S.C. §56

(2000). Under our venue statutes, a lawsuit may be filed against a railroad in any county in

which it "is doing business." 735 ILCS 5/2-102(a) (West 2004). We take judicial notice that

the railroad does business in St. Clair County. See Eagle Marine Industries, Inc. v. Union

Pacific R.R. Co., 363 Ill. App. 3d 1166, 845 N.E.2d 869 (2006) (the defendant railroad was

enjoined from obstructing a crossing it owned and controlled in Sauget, St. Clair County,

Illinois). Therefore, if Rosen had filed a lawsuit prior to settling the plaintiff's FELA claim,

venue for that lawsuit would have been proper in St. Clair County, Illinois. The issue in this

case is not whether a forum non conveniens motion would have been granted in the

underlying FELA action. In this case, the private- and public-interest factors must be applied

to the professional negligence and fraud action that is before this court.

The defendants next argue that the public-interest factors strongly favor a transfer to

Missouri. The first public-interest factor we must consider is the interest in deciding

controversies locally. The defendants argue that because the plaintiff is a Missouri resident

and his underlying work injury occurred in Missouri, an Illinois jury has "no connection" to

this case. We disagree. Although Rosen is licensed to practice law in both Missouri and

Illinois, he maintains his office in St. Clair County, Illinois, and as a result, the people of St.

Clair County have a tremendous interest in the plaintiff's allegations of professional

negligence and fraud against one of their resident attorneys and his law firm. In order for this

case to be decided locally, it should be decided in St. Clair County, the location where,

according to the complaint, Rosen and his law firm represented themselves to be FELA

lawyers, agreed to represent the plaintiff, conducted that representation, maintained a file,

13

and made decisions that ultimately resulted in a settlement that the plaintiff now claims is

inadequate. While we certainly do not make any judgments concerning the merits of the

plaintiff's case or make any predictions about the outcome, we recognize that the gravamen

of the plaintiff's complaint concerns conduct occurring in Illinois, not Missouri.

Applying the second public-interest factor, we see no unfairness in imposing the

expense of a trial and the burden of jury duty upon the residents of St. Clair County in this

case. It stands to reason that St. Clair County residents should have an avid interest in

deciding whether one of their own attorneys, his law firm, and the law firm's consultant are

guilty of professional negligence and fraud. Whatever the outcome of the case, the people

with the greatest reason to decide the case most fairly are those closest to the controversy,

the residents of St. Clair County.

Under the third public-interest factor, the defendants cite court congestion in St. Clair

County as a reason for a transfer to a county in M issouri. As we previously noted, the

defendants did not provide the trial court with any evidence of the relative court congestion

in St. Clair County or in any proposed forum. We acknowledge that the defendants included

in the appendix to their brief copies of documents purporting to show that the St. Clair

County court system is more congested than any proposed forum in Missouri. We decline

to take judicial notice of these documents when they were never submitted to the trial court.

Even if we were to accept the defendants' assertions that St. Clair County is more congested,

however, the congestion of the courts is but one part of the public-interest analysis, and we

would not be persuaded that the defendants met their burden of proof.

The defendants have failed to meet their burden of showing that a balancing of the

relevant private- and public-interest factors strongly favors a transfer from the plaintiff's

chosen forum. As a consequence, we find that the trial court did not abuse its discretion in

denying the defendants' motion to dismiss based upon forum non conveniens.

14

To complete our analysis, however, we must consider the defendants' reliance upon

Merritt v. Hopkins Goldenberg, P.C., 362 Ill. App. 3d 902, 841 N.E.2d 1003 (2005), an

opinion we issued after the briefs were filed but prior to oral arguments before this court in

the present case. The defendants requested leave to cite Merritt as supplemental authority,

and we granted their request. In Merritt, we considered an intrastate forum non conveniens

motion filed and denied in a Madison County legal malpractice action. Merritt, 362 Ill. App.

3d at 904, 841 N.E.2d at 1006. There, the underlying case involved a wrongful-death-and-

survival action that was filed in Alexander County and settled before trial. Merritt, 362 Ill.

App. 3d at 904, 841 N.E.2d at 1005-06. In the legal malpractice action, the plaintiffs alleged

that the defendants settled the plaintiffs' claim for an inadequate amount. Merritt, 362 Ill.

App. 3d at 904, 841 N.E.2d at 1005. The legal malpractice action was tried before a Madison

County jury after the denial of the defendants' motion to remove the case to Alexander

County, where the plaintiffs lived, where the underlying vehicle accident occurred, where the

estate of the child-victim was being administered, and where the court approved the

settlement in the underlying case. Merritt, 362 Ill. App. 3d at 912, 841 N.E.2d at 1012. In

Merritt, we first held that the plaintiffs failed to prove their cause of action for legal

malpractice and that the defendants were entitled to a new trial. Merritt, 362 Ill. App. 3d at

912, 841 N.E.2d at 1012. Additionally, we held that the Madison County circuit court abused

its discretion by denying the defendants' forum non conveniens motion and that, upon

remand, the case should be transferred to Alexander County. Merritt, 362 Ill. App. 3d at 913,

841 N.E.2d at 1012-13.

Our decision in Merritt raises the question of whether a legal malpractice action

alleging an inadequate settlement must be transferred to the county where the underlying

injury occurred. Merritt does not stand for the proposition that a legal malpractice action

such as this case must be tried in the county where the underlying injury occurred. Merritt

15

established no bright-line rule, and we did not intend to change the basic rules applicable to

forum non conveniens cases by our decision in Merritt.

In Merritt, we simply applied the basic forum non conveniens rules to a factual

scenario that is distinguishable from the case at bar, and after that application, we concluded

that the most appropriate forum under those circumstances was the county in which the

underlying cause of action arose. However, there were additional, important connections to

that county that do not exist in the case at bar: in Merritt, venue for the underlying action

would not have been proper in Madison County, the accident occurred in Alexander County,

the plaintiffs lived in Alexander County, the child-victim's estate was being probated there,

the Alexander County circuit court had approved the settlement of the underlying wrongful-

death-and-survival action, and the defendants' expert witness practiced law from his office

in Alexander County. Merritt, 362 Ill. App. 3d at 912, 841 N.E.2d at 1012.

By contrast, in the instant case, Rosen did not file a lawsuit concerning the plaintiff's

underlying work injury in any county, but had he done so, St. Clair County would have been

among the jurisdictions in which venue was proper. Additionally, the plaintiff lives in one

county in Missouri and his work injury occurred in another, and from the record, it appears

that the witnesses to the underlying work injury are scattered throughout various Missouri

counties so that no single Missouri county has a particularly strong connection to the case at

bar. Moreover, Rosen maintains his law practice in St. Clair County, his file concerning the

settlement of the plaintiff's claim is in St. Clair County, and the railroad's attorney and its file

are in St. Clair County. Further, the plaintiff in this case has alleged fraud, which was not

alleged in Merritt.

Because the facts of the plaintiff's underlying cause of action are significantly

different from those in Merritt, the ruling in that case is distinguishable and does not control

the outcome of this case. We continue to adhere to the basic rules governing forum non

16

conveniens cases, and our decision in Merritt did nothing to change those rules.

CONCLUSION

For all the reasons stated, we affirm the trial court's denial of the defendants' motion

to dismiss based upon the doctrine of forum non conveniens.

Affirmed.

GOLDENHERSH and CHAPMAN, JJ., concur.

17

NO. 5-04-0516

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

___________________________________________________________________________________

IVAN BRANT, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) St. Clair County.

)

v. ) No. 03-L-418

)

RICK ROSEN and ROSEN LAW )

FIRM, P.C., )

)

Defendants-Appellants, )

)

and )

)

DWIGHT HARDIN, ) Honorable

) Lloyd A. Cueto,

Defendant. ) Judge, presiding.

___________________________________________________________________________________

Opinion Filed: April 27, 2007

___________________________________________________________________________________

Justices: Honorable Bruce D. Stewart, J.

Honorable Richard P. Goldenhersh, J., and

Honorable Melissa A. Chapman, J.,

Concur

___________________________________________________________________________________

Attorneys Joshua G. Vincent, Terese A. Drew, Timothy G. Shelton, Hinshaw & Culbertson,

for 222 North La Salle Street, Suite 300, Chicago, IL 60601 (attorneys for Rick Rosen

Appellants and Rosen Law Firm, P.C.)

Warren Lupel, Jonathan D. Sherman, Weinberg Richmond LLP, 333 West Wacker

Drive, Suite 1800, Chicago, IL 60606 (attorneys for Dwight Hardin - ADOPTED

ROSEN'S BRIEF)

___________________________________________________________________________________

Attorneys Thomas Q. Keefe, Jr., Thomas Q. Keefe, Jr., P.C., #6 Executive Woods Court,

for Belleville, IL 62226

Appellee

___________________________________________________________________________________