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A couple hired Attorney Todd W.
Bennett of Portage to pursue litigation
against the seller of the couple’s home.
Months after the couple’s purchase of the
home, a driveway and sidewalk on the
property had begun to disintegrate. Bennett
filed a lawsuit, alleging that the seller
had used improper concrete and had
improperly installed it and demanded
judgment of $10,000 plus costs and
disbursements. The defense filed an answer,
and both parties filed motions for summary
judgment.
The court granted the defendant’s
motion for summary judgment and dismissed
the lawsuit on grounds that the complaint
failed to state a claim upon which relief
could be granted. Bennett and the clients
disagree on whether he informed them of the
dismissal. However, after a discussion with
one of the clients, Bennett filed a new
lawsuit against the seller and raised three
claims relating to the seller having made
misrepresentations to the buyers.
Counsel for the defendant informed
Bennett of his opinion that if Bennett
proceeded, the plaintiffs faced the
possibility of having the suit deemed
frivolous, exposing them to substantial
costs and attorney’s fees. The defendant’s
counsel also told Bennett that the
plaintiffs’ claims were barred by the
economic loss doctrine. Bennett, however,
told his clients that adverse counsel’s
position lacked merit. The defendant’s
counsel filed an answer and raised numerous
affirmative defenses, including failure to
state a claim upon which relief could be
granted, failure to join all necessary
parties, and the economic loss doctrine.
The defense later filed an amended answer
and asserted that the lawsuit was frivolous.-
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The court scheduled a status
conference. Bennett wrote to his clients
and informed them of the status conference,
which was the last communication they
received from him. Bennett attended the
status conference.
The defendant’s counsel subsequently
moved for summary judgment and also sent the
court and Bennett a proposed scheduling
order relating to the motion. The court
issued a scheduling order that included a
deadline for Bennett to file a response
brief. Bennett did not file a response
brief or contest the motion for summary
judgment, nor did he inform his clients of
the motion for summary judgment or of the
scheduling order. The defendant’s counsel
wrote to the court, requesting that the
court issue a ruling on the defendant’s
summary judgment motion and enclosing a
proposed bill of costs.
The court issued a judgment in favor
of the seller for attorney fees, costs and
disbursements in the amount of $2,296.00.
Bennett’s clients learned of the case
dismissal and the judgment imposed against
them by reviewing online court records on
the day after the judgment was imposed.
The clients filed a grievance
against Bennett, and the grievance was
referred for formal investigation. OLR
wrote to Bennett and asked him to submit a
written response, and in particular, to
respond to six questions. Bennett submitted
a written response to the grievance, but he
did not answer all of the questions raised
in OLR’s letter. OLR wrote to Bennett and
asked him to provide additional information,
including an explanation as to why he filed
a second lawsuit against the same defendant
after the court had previously issued a
summary judgment decision against his client
in the first matter. OLR also asked Bennett
to provide phone records evidencing that he
had called his clients after the first
lawsuit was dismissed, as he had asserted.
Bennett failed to respond to those
questions, although he responded to other
questions raised by OLR.
OLR’s investigative file was
referred to a district committee for further
investigation. The district committee’s
investigator similarly asked Bennett to
provide a response relating to whether he
had informed his clients of the dismissal of
the first lawsuit. Bennett did not respond.
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