2024 IL App (2d) 230308-U No. 2-23-0308 Order filed September 3, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
LAURA ANDERSON, ) Appeal from the Circuit Court ) of Kane County. Plaintiff-Appellant, ) ) v. ) No. 23-LA-73 ) LAW OFFICES OF BENEDICT SCHWARZ, ) II, P.C., and BENEDICT SCHWARZ, II, ) Honorable ) Kevin T. Busch, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court. Presiding Justice McLaren and Justice Mullen concurred in the judgment.
ORDER
¶1 Held: The trial court erred in dismissing the plaintiff’s complaint for legal malpractice.
¶2 The plaintiff, Laura Anderson, appeals from the judgment of the circuit court of Kane
County dismissing her legal malpractice action against the defendants, Law Offices of Benedict
Schwarz, II, P.C., and Benedict Schwarz, II. We reverse and remand for additional proceedings.
¶3 I. BACKGROUND
¶4 In 2018, the plaintiff filed a petition to divorce her husband, John Wittenstrom. She hired
the defendants to represent her in the divorce proceedings. The defendants withdrew from 2024 IL App (2d) 230308-U
representing her on May 5, 2020, and subsequent counsel began representing her two days later.
On February 24, 2021, the plaintiff entered into a marital settlement agreement with the assistance
of subsequent counsel. On January 28, 2022, the divorce proceedings concluded.
¶5 On February 22, 2023, the plaintiff filed a legal malpractice action against the defendants.
She alleged that the defendants failed to take appropriate measures to freeze or maintain accounts
that she owned with her husband. 1 Because the assets were not frozen, her husband was able to
sell five homes, five land parcels, an office, and an apartment building, most below appraised or
market value. She asserted that the defendants knew of her husband’s liquidation and dissipation
of marital assets but did not take adequate steps to prevent those losses. As a result of the
defendants’ negligence, she alleged that she had to settle the underlying matter prematurely in
order to keep her marital home and not be evicted. She further alleged that she lost money, all
alimony, all her retirement, all her businesses, all her health insurance, and was left six figures in
debt, with a home that needed major repairs.
¶6 On June 20, 2023, the defendants filed a motion to dismiss the complaint pursuant to 2-
615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2022)). The defendants argued that
the plaintiff had failed to allege how they deviated from the standard of care. The defendants also
noted that they had represented the plaintiff during her divorce proceedings only for a limited
period as co-counsel.
¶7 On August 24, 2023, following a hearing, the trial court dismissed the plaintiff’s complaint
with prejudice. The trial court stated that none of the plaintiff’s allegations in her complaint
1 The complaint refers to her “business partner,” but the plaintiff later acknowledged that
her “business partner” was in fact her husband.
-2- 2024 IL App (2d) 230308-U
suggested that the defendants were incompetent. The trial court found that the defendants’ early
withdrawal was relevant because the subsequent law firm had months to preserve any of the
plaintiff’s claims. The trial court also noted that an agreed order was entered into between the
parties on July 2, 2020, regarding attorney fees. The trial court explained that any malpractice
claim should have been brought at the time the defendants brought a claim for fees in the
underlying divorce action.
¶8 Following the trial court’s ruling, the plaintiff filed a timely notice of appeal.
¶9 II. ANALYSIS
¶ 10 A motion to dismiss for failure to state a cause of action pursuant to section 2-615 attacks
“the legal sufficiency of a complaint based on defects apparent on its face.” Pooh–Bah
Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009). A circuit court should grant a
section 2–615 motion to dismiss only if it is clearly apparent that no set of facts can be proved that
would entitle the plaintiff to relief. Nelson v. Quarles & Brady, LLP, 2013 IL App (1st) 123122,
¶ 27. At this pleading stage, a plaintiff is not required to prove his case and need only allege
sufficient facts to state all elements of the cause of action. Fox v. Seiden, 382 Ill. App. 3d 288,
294 (2008). When reviewing a section 2-615 motion, we accept as true “[a]ll well-pleaded facts
and reasonable inferences that can be drawn from those facts.” Tuite v. Corbitt, 224 Ill. 2d 490,
509 (2006). We also interpret the allegations in the complaint in the light most favorable to the
plaintiff. Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 13. Our review of the circuit
court’s order granting a section 2-615 motion to dismiss is de novo. Id.
¶ 11 “To state a cause of action for legal malpractice, the plaintiff must allege facts to establish
(1) the defendant attorney owed the plaintiff client a duty of due care arising from an attorney-
client relationship, (2) the attorney breached that duty, (3) the client suffered an injury in the form
-3- 2024 IL App (2d) 230308-U
of actual damages, and (4) the actual damages resulted as a proximate cause of the breach.” Fox,
382 Ill. App. 3d at 294. A legal malpractice suit is by its nature dependent upon a predicate lawsuit.
Claire Associates v. Pontikes, 151 Ill. App. 3d 116, 122 (1986). Thus, a legal malpractice claim
presents a “case within a case.” Id. “[N]o malpractice exists unless counsel’s negligence has
resulted in the loss of an underlying cause of action, or the loss of a meritorious defense if the
attorney was defending in the underlying suit.” Id.
¶ 12 Here, the trial court erred in dismissing the plaintiff’s complaint. The plaintiff set forth all
of the elements of a legal malpractice claim. She alleged that she hired the defendants to represent
her in her marriage dissolution proceedings. She alleged that the defendants breached their duty
to her by not freezing her husband’s assets so as to prevent him from diminishing the marital estate.
She further alleged that due to the defendants’ breach of their duty, she suffered damages due to a
diminished marital estate and because she had to accept a marital settlement agreement
“prematurely” in order to keep her marital home. Despite the defendants’ insistence to the
contrary, the plaintiff’s allegations included enough specificity for them to prepare a defense. See
Santelli v. City of Chicago, 222 Ill. App. 3d 862, 870 (1991) (complaint must give sufficient
information to the opponent and to the court of the character of evidence to be introduced or of the
issues to be tried).
¶ 13 In dismissing the complaint, the trial court placed significant weight on the fact that a new
attorney represented the plaintiff before she signed the marital settlement agreement. The trial
court explained that the new attorney had months to preserve the plaintiff’s claims. The defendants
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2024 IL App (2d) 230308-U No. 2-23-0308 Order filed September 3, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
LAURA ANDERSON, ) Appeal from the Circuit Court ) of Kane County. Plaintiff-Appellant, ) ) v. ) No. 23-LA-73 ) LAW OFFICES OF BENEDICT SCHWARZ, ) II, P.C., and BENEDICT SCHWARZ, II, ) Honorable ) Kevin T. Busch, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court. Presiding Justice McLaren and Justice Mullen concurred in the judgment.
ORDER
¶1 Held: The trial court erred in dismissing the plaintiff’s complaint for legal malpractice.
¶2 The plaintiff, Laura Anderson, appeals from the judgment of the circuit court of Kane
County dismissing her legal malpractice action against the defendants, Law Offices of Benedict
Schwarz, II, P.C., and Benedict Schwarz, II. We reverse and remand for additional proceedings.
¶3 I. BACKGROUND
¶4 In 2018, the plaintiff filed a petition to divorce her husband, John Wittenstrom. She hired
the defendants to represent her in the divorce proceedings. The defendants withdrew from 2024 IL App (2d) 230308-U
representing her on May 5, 2020, and subsequent counsel began representing her two days later.
On February 24, 2021, the plaintiff entered into a marital settlement agreement with the assistance
of subsequent counsel. On January 28, 2022, the divorce proceedings concluded.
¶5 On February 22, 2023, the plaintiff filed a legal malpractice action against the defendants.
She alleged that the defendants failed to take appropriate measures to freeze or maintain accounts
that she owned with her husband. 1 Because the assets were not frozen, her husband was able to
sell five homes, five land parcels, an office, and an apartment building, most below appraised or
market value. She asserted that the defendants knew of her husband’s liquidation and dissipation
of marital assets but did not take adequate steps to prevent those losses. As a result of the
defendants’ negligence, she alleged that she had to settle the underlying matter prematurely in
order to keep her marital home and not be evicted. She further alleged that she lost money, all
alimony, all her retirement, all her businesses, all her health insurance, and was left six figures in
debt, with a home that needed major repairs.
¶6 On June 20, 2023, the defendants filed a motion to dismiss the complaint pursuant to 2-
615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2022)). The defendants argued that
the plaintiff had failed to allege how they deviated from the standard of care. The defendants also
noted that they had represented the plaintiff during her divorce proceedings only for a limited
period as co-counsel.
¶7 On August 24, 2023, following a hearing, the trial court dismissed the plaintiff’s complaint
with prejudice. The trial court stated that none of the plaintiff’s allegations in her complaint
1 The complaint refers to her “business partner,” but the plaintiff later acknowledged that
her “business partner” was in fact her husband.
-2- 2024 IL App (2d) 230308-U
suggested that the defendants were incompetent. The trial court found that the defendants’ early
withdrawal was relevant because the subsequent law firm had months to preserve any of the
plaintiff’s claims. The trial court also noted that an agreed order was entered into between the
parties on July 2, 2020, regarding attorney fees. The trial court explained that any malpractice
claim should have been brought at the time the defendants brought a claim for fees in the
underlying divorce action.
¶8 Following the trial court’s ruling, the plaintiff filed a timely notice of appeal.
¶9 II. ANALYSIS
¶ 10 A motion to dismiss for failure to state a cause of action pursuant to section 2-615 attacks
“the legal sufficiency of a complaint based on defects apparent on its face.” Pooh–Bah
Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009). A circuit court should grant a
section 2–615 motion to dismiss only if it is clearly apparent that no set of facts can be proved that
would entitle the plaintiff to relief. Nelson v. Quarles & Brady, LLP, 2013 IL App (1st) 123122,
¶ 27. At this pleading stage, a plaintiff is not required to prove his case and need only allege
sufficient facts to state all elements of the cause of action. Fox v. Seiden, 382 Ill. App. 3d 288,
294 (2008). When reviewing a section 2-615 motion, we accept as true “[a]ll well-pleaded facts
and reasonable inferences that can be drawn from those facts.” Tuite v. Corbitt, 224 Ill. 2d 490,
509 (2006). We also interpret the allegations in the complaint in the light most favorable to the
plaintiff. Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 13. Our review of the circuit
court’s order granting a section 2-615 motion to dismiss is de novo. Id.
¶ 11 “To state a cause of action for legal malpractice, the plaintiff must allege facts to establish
(1) the defendant attorney owed the plaintiff client a duty of due care arising from an attorney-
client relationship, (2) the attorney breached that duty, (3) the client suffered an injury in the form
-3- 2024 IL App (2d) 230308-U
of actual damages, and (4) the actual damages resulted as a proximate cause of the breach.” Fox,
382 Ill. App. 3d at 294. A legal malpractice suit is by its nature dependent upon a predicate lawsuit.
Claire Associates v. Pontikes, 151 Ill. App. 3d 116, 122 (1986). Thus, a legal malpractice claim
presents a “case within a case.” Id. “[N]o malpractice exists unless counsel’s negligence has
resulted in the loss of an underlying cause of action, or the loss of a meritorious defense if the
attorney was defending in the underlying suit.” Id.
¶ 12 Here, the trial court erred in dismissing the plaintiff’s complaint. The plaintiff set forth all
of the elements of a legal malpractice claim. She alleged that she hired the defendants to represent
her in her marriage dissolution proceedings. She alleged that the defendants breached their duty
to her by not freezing her husband’s assets so as to prevent him from diminishing the marital estate.
She further alleged that due to the defendants’ breach of their duty, she suffered damages due to a
diminished marital estate and because she had to accept a marital settlement agreement
“prematurely” in order to keep her marital home. Despite the defendants’ insistence to the
contrary, the plaintiff’s allegations included enough specificity for them to prepare a defense. See
Santelli v. City of Chicago, 222 Ill. App. 3d 862, 870 (1991) (complaint must give sufficient
information to the opponent and to the court of the character of evidence to be introduced or of the
issues to be tried).
¶ 13 In dismissing the complaint, the trial court placed significant weight on the fact that a new
attorney represented the plaintiff before she signed the marital settlement agreement. The trial
court explained that the new attorney had months to preserve the plaintiff’s claims. The defendants
echo this argument on appeal, arguing that because they did not represent the plaintiff at the
conclusion of her divorce proceedings, she cannot establish proximate cause.
-4- 2024 IL App (2d) 230308-U
¶ 14 Our courts have previously considered and rejected similar arguments. See Webb v.
Damisch, 362 Ill. App. 3d 1032, 1042 (2005) (settlement by successor counsel does not necessarily
bar a malpractice action against prior counsel); see also McCarthy v. Pedersen & Houpt, 250 Ill.
App. 3d 166, 172 (1993). In McCarthy, the appellate court was asked to answer a certified question
of “whether the settlement of a lawsuit by a plaintiff *** precludes a subsequent complaint against
trial counsel for malpractice.” 250 Ill. App. 3d at 166. The appellate court answered the question
in the negative. Id. at 172. In reviewing foreign authorities, the appellate court found particularly
persuasive the reasoning of a New York court, which held:
“ ‘Where the termination [of litigation] is by settlement rather than by dismissal or adverse
judgment, malpractice by the attorney is more difficult to establish, but a cause of action
can be made out if it is shown that assent by the client to the settlement was compelled
because prior misfeasance or nonfeasance by the attorneys left no other recourse. ***
[T]he cause of action for legal malpractice must stand or fall on its own merits, with no
automatic waiver of a plaintiff’s right to sue for malpractice merely because plaintiff had
voluntarily agreed to enter into a stipulation of settlement.’ ” Id. at 169, quoting Becker v.
Julien, Blitz & Schlesinger, PC, 406 N.Y.S. 2d 412, 413-14 (1977), modified on other
grounds, 411 N.Y.S 2d 17 (1978).
¶ 15 The plaintiff’s complaint falls fully within the strictures of Webb and McCarthy. As in
those cases, the plaintiff is alleging that she had to settle for a lesser amount than she would have
received absent the defendants’ malpractice. See Webb, 362 Ill. App. 3d at 1042 (2005) (an
attorney malpractice action should be allowed where the plaintiff can show that he settled for a
lesser amount than he could reasonably expect without the malpractice). Although the defendants
dispute those claims, the complaint raises factual questions that are improper to resolve on a motion
-5- 2024 IL App (2d) 230308-U
to dismiss. Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶53 (motion
to dismiss “is not a shortcut to resolve factual issues about the veracity of plaintiff’s essential
allegations”).
¶ 16 III. CONCLUSION
¶ 17 For the foregoing reasons, the judgment of the circuit court of Kane County is reversed and
remanded for additional proceedings.
¶ 18 Reversed and remanded.
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