No. 2--07--1215 Filed: 12-29-08 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
MARGARET R. NETTLETON, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellant, ) ) v. ) No. 04--L--1284 ) WILLIAM J. STOGSDILL, JR., and THE ) LAW OFFICES OF WILLIAM J. ) STOGSDILL, JR., ) Honorable ) Hollis L. Webster, Defendants-Appellees. ) Judge, Presiding. ________________________________________________________________________________
PRESIDING JUSTICE ZENOFF delivered the opinion of the court:
Plaintiff, Margaret R. Nettleton, filed a complaint against defendants, William J. Stogsdill,
Jr. (Stogsdill), and The Law Offices of William J. Stogsdill, Jr. (firm), alleging that they committed
malpractice during their representation of her in her dissolution proceeding. Plaintiff appeals the
trial court's order granting defendants summary judgment on plaintiff's complaint and the trial court's
order dismissing plaintiff's counterclaim. For the following reasons, we affirm in part, reverse in
part, and remand for further proceedings.
BACKGROUND
On December 2, 2004, plaintiff filed a complaint against defendants, alleging that they
committed malpractice during their representation of her in her dissolution proceeding. Plaintiff's No. 2--07--1215
complaint was based on the following facts taken from the record on appeal. She retained Stogsdill
to represent her in connection with the dissolution petition she filed on July 10, 2001 (first
dissolution petition), against her then-husband Mark Terrell. Terrell filed a counterpetition for
dissolution, and the trial on plaintiff's and Terrell's petitions was set for December 4, 2002.
On December 3, 2002, Brian Nigohosian, an associate at the firm, appeared before the trial
court and requested a continuance because Stogsdill was engaged in another trial and unable to
prepare or be available to go to trial on plaintiff's dissolution. The trial court denied the motion for
a continuance. The following day, Stogsdill appeared in court on behalf of plaintiff and asked the
trial court to reconsider its ruling on the motion for a continuance. Stogsdill informed the trial court
that he was unavailable and unprepared to go to trial. The trial court allowed a short continuance,
ordering that the trial would begin that Friday, December 6, 2002.
On December 6, 2002, Stogsdill appeared in court and moved the trial court to voluntarily
nonsuit the first dissolution petition. The trial court denied Stogsdill's motion because he had failed
to provide proper notice to the parties. Stogsdill then called plaintiff to the stand, where he asked
her to state and spell her name, after which he dismissed her as a witness and rested plaintiff's case
in chief. The trial court entered a directed finding on the first dissolution petition, finding that
plaintiff had failed to prove grounds for a dissolution, and entered an order dismissing the first
dissolution petition. Terrell then had his counterpetition dismissed for want of prosecution.
One week later, on December 13, 2002, plaintiff, still represented by Stogsdill, refiled her
dissolution case (second dissolution petition).1 Stogsdill continued to represent plaintiff until
1 On appeal, plaintiff states that the second dissolution petition was filed sometime in January
2003. Defendants' brief states that the second dissolution petition was filed on December 13, 2002,
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February 2003. After the termination of Stogsdill's representation of plaintiff and until the parties
finally settled in 2005, plaintiff was represented by four other firms. During the pendency of the
second dissolution petition, Terrell filed an interlocutory appeal from one of the trial court's
decisions, which was affirmed by the appellate court, and also filed a separate petition for dissolution
in Will County, which was dismissed.
In her complaint against defendants, plaintiff alleged that defendants committed legal
malpractice when Stogsdill (1) was unprepared to go to trial on her first dissolution petition because
he was engaged in another trial; (2) without her consent, moved to voluntarily nonsuit the first
dissolution petition; and (3) without her consent, put plaintiff on the stand, asked only her name and
its spelling, and then rested her case in chief, resulting in a directed finding on her first dissolution
petition. According to plaintiff, as a result of Stogsdill's negligence, she remained married to Terrell,
she had to file a second dissolution petition, Terrell filed a petition for dissolution in Will County,
she had to defend an interlocutory appeal filed by Terrell, and her employment prospects were
impaired due to the protracted divorce litigation. Plaintiff further alleged that she incurred the
following damages due to Stogsdill's negligence: the loss of the use and enjoyment of property and
assets that remained part of the marital estate during the divorce litigation, attorney fees paid to
defendants in connection with Stogsdill's representation of her, attorney fees and court costs
expended during the subsequent divorce litigation, and the "monetary and non-monetary damages"
incurred during the course of her employment.
which is also the date to which plaintiff testified during her deposition as the date that the second
dissolution petition was filed.
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On April 13, 2007, defendants filed a motion for summary judgment, arguing that defendants
did not breach the duty of care owed to plaintiff, plaintiff presented no evidence that defendants were
the proximate cause of plaintiff's damages, and plaintiff lacked evidence to establish that she suffered
any "actual damages." Following a hearing on the matter, the trial court granted defendants' motion
for summary judgment, finding that plaintiff failed to present evidence that she suffered actual
damages that were proximately caused by defendants' alleged negligence.
Following the trial court's ruling on defendants' motion for summary judgment, defendants'
counterclaim, which was a fee petition originally filed in the underlying dissolution case and
consolidated with plaintiff's malpractice case, remained pending. With leave of court, plaintiff filed
a two-count counterclaim to defendants' counterclaim, alleging breach of fiduciary duty and breach
of contract. Defendants filed a motion to dismiss plaintiff's counterclaim pursuant to section 2--619
of the Code of Civil Procedure (Code) (735 ILCS 5/2--619 (West 2006)), alleging that the claims
in plaintiff's counterclaim were duplicative of the claim alleged in plaintiff's original complaint. The
trial court agreed and granted defendants' motion to dismiss plaintiff's counterclaim.
On October 17, 2007, plaintiff filed a motion to reconsider. The following day, defendants
filed a motion to voluntarily dismiss their counterclaim, which the trial court granted the same day.
On November 5, 2007, the trial court denied plaintiff's motion to reconsider, and plaintiff filed a
timely notice of appeal on November 27, 2007.
ANALYSIS
On appeal, plaintiff argues that the trial court erred in two respects: (1) the trial court erred
in granting defendants' motion for summary judgment on plaintiff's complaint, and (2) the trial court
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erred in granting defendants' motion to dismiss plaintiff's counterclaim. We will address each
contention in turn.
A. Motion for Summary Judgment
Plaintiff first argues that the trial court erred in granting defendants' motion for summary
judgment on her complaint. According to plaintiff, the trial court's grant of summary judgment was
erroneous because the trial court misapplied the law regarding actual damages and the issue of
proximate cause was an issue of fact inappropriate for resolution on summary judgment. Defendants
disagree with both of plaintiff's contentions and further allege that, even if the trial court erred with
respect to its findings on actual damages and proximate cause, we should nonetheless affirm the
grant of summary judgment on the basis that defendants did not breach their duty to plaintiff.
Summary judgment is appropriate when the pleadings, depositions, and admissions on file,
together with any affidavits, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. Forsythe v. Clark USA, Inc., 224 Ill. 2d
274, 280 (2007). The purpose of summary judgment is not to try an issue of fact, but to determine
if one exists. Forsythe, 224 Ill. 2d at 280. In reviewing a grant of summary judgment, the appellate
court will construe the record strictly against the movant and liberally in favor of the nonmoving
party. Forsythe, 224 Ill. 2d at 280. Summary judgment should not be allowed unless the moving
party's right to judgment is clear and free from doubt. Forsythe, 224 Ill. 2d at 280. If the undisputed
facts could lead reasonable observers to divergent inferences, or if there is a dispute as to a material
fact, summary judgment should be denied. Forsythe, 224 Ill. 2d at 280. We review a grant of
summary judgment de novo. Forsythe, 224 Ill. 2d at 280.
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To succeed in a claim for legal malpractice, a plaintiff must plead and prove the following
elements: (1) the defendant attorney owed the client a duty of due care arising from the attorney-
client relationship, (2) the defendant breached that duty, (3) as a proximate result, the client suffered
injury. Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 225-26 (2006). The existence
of actual damages is essential to a cause of action for legal malpractice. Tri-G, 222 Ill. 2d at 226.
Actual damages in a legal malpractice case are not presumed; a plaintiff must plead and prove that
she has suffered injuries resulting from the defendant attorney's alleged malpractice. Sterling Radio
Stations, Inc. v. Weinstine, 328 Ill. App. 3d 58, 63 (2002). Even if negligence on the part of the
defendant attorney is proven, a plaintiff cannot recover for legal malpractice unless she also proves
that the attorney's negligence proximately caused her damages. Tri-G, 222 Ill. 2d at 226.
1. Actual Damages
The trial court found that plaintiff failed to present any evidence of actual damages because
she failed to present any evidence that she would have received a larger award in the dissolution
proceeding had defendants not been negligent. The trial court further found that the damages
plaintiff alleged she suffered did not constitute actual damages. Plaintiff argues that such a finding
was erroneous with respect to her claim for attorney fees because such fees were a direct result of
defendants' alleged negligence and are not precluded by existing case law.2 We agree with plaintiff.
2 We note that plaintiff argues on appeal only that the trial court erred in finding that attorney
fees did not constitute actual damages. She does not argue that the trial court erred in granting
summary judgment with respect to the other damages alleged by plaintiff--the loss of the use and
enjoyment of property and assets that remained part of the marital estate and the damages incurred
in the course of her employment. Accordingly, we focus exclusively on whether attorney fees may
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A successful legal malpractice claim places the plaintiff in the same position that she would
have occupied but for the attorney's negligence. Bloome v. Wiseman, Shaikewitz, McGivern, Wahl,
Flavin & Hesi, P.C., 279 Ill. App. 3d 469, 478 (1996); Sterling Radio Stations, 328 Ill. App. 3d at
64. "The general rule of damages in a tort action is that 'the wrongdoer is liable for all injuries
resulting directly from the wrongful acts ***, provided the particular damages are the legal and
natural consequences of the wrongful act imputed to the defendant, and are such as might reasonably
have been anticipated.' " Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 543 (1996), quoting
Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 259 (1987). A plaintiff in a legal
malpractice case may recover attorney fees when the fees constitute an ordinary loss resulting from
the attorney's negligence. Sterling Radio Stations, 328 Ill. App. 3d at 63; Lucey v. Law Offices of
Pretzel & Stouffer, Chartered, 301 Ill. App. 3d 349, 355 (1998); Goran v. Glieberman, 276 Ill. App.
3d 590, 595 (1995); Sorenson v. Fio Rito, 90 Ill. App. 3d 368, 374 (1980).
In Sorenson, the defendant attorney failed to timely file certain inheritance and estate tax
forms for the plaintiff. Sorenson, 90 Ill. App. 3d at 368-69. As a result of the late filing of the
forms, the plaintiff was required to pay penalties and interest. Sorenson, 90 Ill. App. 3d at 370. In
addition, the plaintiff spent $1,500 in an unsuccessful attempt to obtain refunds of the penalties and
interest. Sorenson, 90 Ill. App. 3d at 370. The trial court awarded the plaintiff damages for the
penalties, interest, and attorney fees. Sorenson, 90 Ill. App. 3d at 368-69. The defendant argued on
appeal that the plaintiff should not have been allowed to recover the attorney fees. Sorenson, 90 Ill.
App. 3d at 371. The appellate court disagreed, holding that the fees fell within "the general rule of
requiring a wrongdoer to bear the consequences of his misconduct" (Sorenson, 90 Ill. App. 3d at
constitute actual damages in the context of a legal malpractice claim.
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372) and "constitute[d] nothing more than ordinary losses resulting from the defendant's conduct"
(Sorenson, 90 Ill. App. 3d at 374).
Similarly, in Sterling Radio Stations, the plaintiff filed a legal malpractice claim against the
defendants, alleging that, as a result of the defendants' malpractice, a judgment had been entered
against him in the underlying breach of contract case. Sterling Radio Stations, 328 Ill. App. 3d at
61. The trial court granted the defendants summary judgment on the plaintiff's complaint, finding
that the plaintiff had suffered no damages as a matter of law, and the plaintiff appealed. Sterling
Radio Stations, 328 Ill. App. 3d at 60. The plaintiff argued on appeal that he had suffered damages
in the form of the $100,000 he had expended in attorney fees to prosecute an (unsuccessful) appeal
from the judgment in the underlying case. Sterling Radio Stations, 328 Ill. App. 3d at 62. Citing
Sorenson, the appellate court reversed the trial court, holding that the attorney fees incurred by the
plaintiff should be considered damages because the plaintiff incurred the fees in an attempt to "undo"
the damage done by the defendants' alleged negligence. Sterling Radio Stations, 328 Ill. App. 3d at
63.
We can see no reason, and defendants do not offer one, why the analysis of Sorenson and
Sterling Radio Stations does not apply in the present case. Like in Sorenson and Sterling Radio
Stations, the attorney fees plaintiff expended in the present case were paid in an attempt to remedy
the alleged negligence of defendants. As a result of defendants' alleged malpractice, a directed
finding was entered on plaintiff's first dissolution petition. Thus, to remedy defendants' negligence
and to obtain a divorce, plaintiff was required to incur attorney fees to file and prosecute the second
dissolution petition.
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Defendants argue that plaintiff may not, as a matter of law, recover any damages other than
the difference between the amount she actually received in the divorce and the amount she would
have received in the divorce had defendants not committed malpractice. In support of this
proposition, defendant relies primarily upon Weisman v. Schiller, Ducanto & Fleck, Ltd., 368 Ill.
App. 3d 41 (2006). In that case, the plaintiff alleged that the defendants had committed legal
malpractice when they, in the course of representing the plaintiff in her dissolution case, failed to
conduct adequate discovery on the value of the marital estate and to present expert witnesses.
Weisman, 368 Ill. App. 3d at 44. Following trial, the jury found in favor of the defendants.
Weisman, 368 Ill. App. 3d at 50. On appeal, the plaintiff argued that the jury's verdict was against
the manifest weight of the evidence. Weisman, 368 Ill. App. 3d at 51. The appellate court
disagreed, holding that the plaintiff failed to establish that she suffered actual damages because she
did not present any evidence that, had defendants not been negligent, she would have received more
than the approximately $3.1 million for which she settled the underlying dissolution case. Weisman,
368 Ill. App. 3d at 52. In so holding, the appellate court stated, "[t]o prove her legal malpractice
claim, plaintiff had to establish that she would have received a larger share of the marital estate as
a result of the divorce proceedings but for [the defendants'] malpractice." Weisman, 368 Ill. App.
3d at 52.
Unlike in the present case, the Weisman court was not presented with the question of whether
a legal malpractice plaintiff may recover attorney fees when those attorney fees are incurred as a
direct result of the defendant attorney's alleged malpractice. Although the Weisman opinion cited
by defendants does not make clear what the plaintiff alleged as her injury, the appellate court's
opinion in a previous appeal in the Weisman case specifically stated that, in her complaint, the
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plaintiff alleged that had the defendants not been negligent she would have recovered a larger portion
of the marital estate than she actually received. Weisman v. Schiller, Ducanto & Fleck, 314 Ill. App.
3d 577, 578 (2000). Likewise, none of the other cases cited by defendants addressed the issue of
whether attorney fees may be considered actual damages in a legal malpractice case; rather, all of
the cases involved allegations that the defendants' malpractice caused the plaintiffs either to lose
their causes of action or to receive smaller awards than they would have otherwise. See, e.g., Tri-G,
222 Ill. 2d at 240 (plaintiff alleged that, but for defendant's malpractice in failing to prosecute
plaintiff's complaint, it would have recovered damages in the underlying case); Eastman v. Messner,
188 Ill. 2d 404, 406 (1999) (plaintiff alleged that defendant failed to file the underlying personal
injury claim within the applicable limitations period); Fox v. Berks, 334 Ill. App. 3d 815, 816 (2002)
(plaintiff alleged that, but for defendants' negligent representation of her during her divorce case, she
would have received a larger portion of the marital estate); Ignarski v. Norbut, 271 Ill. App. 3d 522,
523-24 (1995) (plaintiff alleged that, as a result of defendant's negligence in failing to name the
proper party within the applicable limitations period, plaintiff's cause of action was dismissed).
The allegations by the plaintiffs in the cases cited by defendants are important not only to
demonstrate the issues the courts in those cases were asked to address, but also to demonstrate why
those courts applied the law upon which defendants rely--that to demonstrate actual damages a legal
malpractice plaintiff must show that, but for the defendant's malpractice, the plaintiff would have
recovered a larger award in the underlying case than she otherwise did. A successful legal
malpractice claim places the plaintiff in the same position that she would have occupied but for the
attorney's negligence. Sterling Radio Stations, 328 Ill. App. 3d at 64; Bloome, 279 Ill. App. 3d at
478. Where a legal malpractice plaintiff alleges that the defendant's malpractice caused her to lose
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her cause of action or to receive a smaller award than she would have otherwise received, an award
of damages equal to the amount she did not receive as a result of the defendant's malpractice is
necessary to place the plaintiff in the same position that she would have occupied had the defendant
not been negligent. If the award the plaintiff actually received is the same as or greater than the
award she would have received if the defendant had not been negligent, then the plaintiff cannot be
said to have been injured in the manner she alleged and she is not entitled to any damages. Thus,
where a legal malpractice plaintiff alleges that the defendant's malpractice caused her to lose her
cause of action or to receive a smaller award than she would have otherwise received, courts require
the plaintiff to demonstrate that but for the defendant's negligence she would have received a larger
award than she otherwise did. See, e.g., Weisman, 368 Ill. App. 3d at 52.
In contrast, where a legal malpractice plaintiff alleges that the defendant's malpractice caused
her to incur attorney fees, an award of damages equal to the amount of attorney fees she would not
have had to spend but for the defendant's negligence is necessary to put the plaintiff in the same
position she would have occupied had the defendant not been negligent. See Sorenson, 90 Ill. App.
3d at 374 (allowing a legal malpractice plaintiff to recover attorney fees incurred as a result of the
defendant's malpractice complies with "the general rule of requiring a wrongdoer to bear the
consequences of his misconduct"). Relating the plaintiff's damages in such a case to the amount she
received as an award in the underlying case is illogical, as it compensates the plaintiff for an injury
she did not allege she suffered, while also failing to compensate her for the injury she did actually
incur. We do believe, however, that just as a plaintiff who alleges a loss of her cause of action or
a larger award must show that she would have received a larger award but for the defendant's
negligence (Weisman, 368 Ill. App. 3d at 52), a plaintiff alleging incurment of attorney fees as a
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result of the defendant's negligence must demonstrate that she would not have incurred the claimed
fees in the absence of the defendant's negligence. Such a rule is necessary because, to allow a
plaintiff to recover attorney fees she would have incurred even in the absence of the defendant's
negligence would place the plaintiff in a position better than that she would have occupied had the
defendant not been negligent.
In sum, following Sorenson and Sterling Radio Stations, we hold that a legal malpractice
plaintiff may recover as actual damages the attorney fees incurred as a result of the defendant's
malpractice, so long as the plaintiff can demonstrate she would not have incurred the fees in the
absence of the defendant's negligence. Thus, the trial court's decision that the attorney fees plaintiff
alleged could not constitute actual damages in a legal malpractice case was erroneous, as was its
decision that plaintiff was required to present evidence that but for defendants' alleged malpractice,
she would have received a larger share of the marital estate.
2. Proximate Cause
The trial court also granted defendants' motion for summary judgment on the basis that
plaintiff could not establish that her injuries were proximately caused by defendants' alleged
malpractice. In so holding, the trial court stated, "I simply don't find any case law in the State of
Illinois that would support the claim that you can proximately relate the dismissal of a divorce action
that is subsequently refiled shortly thereafter with five years or however many years of subsequent
litigation and attorney changing and negotiations and ultimate settlement." Plaintiff argues that the
trial court's decision was erroneous because the issue of proximate cause was a question of fact that
should not have been decided on summary judgment.
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" 'The issue of proximate causation in a legal malpractice setting is generally considered a
factual issue to be decided by the trier of fact.' " Governmental Interinsurance Exchange v. Judge,
221 Ill. 2d 195, 210 (2006), quoting Renshaw v. Black, 299 Ill. App. 3d 412, 417-18 (1998). Such
a determination is to be made by the trier of fact after consideration of all of the evidence and
attending circumstances. Judge, 221 Ill. 2d at 210; Public Taxi Service, Inc. v. Barrett, 44 Ill. App.
3d 452, 456 (1976). The issue of proximate causation should never be decided as a matter of law
where reasonable persons could reach different results. Judge, 221 Ill. 2d at 210; see also Public
Taxi, 44 Ill. App. 3d at 456 (proximate cause should be determined as a matter of law only where
(1) the facts are undisputed and (2) there can be no difference in the judgment of reasonable persons
as to the inferences that may be drawn from the facts).
In the present case, the record reveals that reasonable persons could reach different
conclusions as to whether defendants' alleged malpractice proximately caused plaintiff's injuries.
In their answer to plaintiff's complaint, defendants admitted that as a result of plaintiff's failure to
prove grounds for a divorce on December 6, 2002, the trial court entered a directed finding against
plaintiff on her first dissolution petition. Defendants also admitted that on December 6, 2002, the
only evidence Stogsdill presented on plaintiff's first dissolution petition was plaintiff's testimony as
to her name. All but one of the people whose depositions were submitted by defendants in support
of their motion for summary judgment testified that the dismissal of plaintiff's first dissolution
petition rendered the filing of a second petition for dissolution necessary if plaintiff wished to obtain
a divorce. Joseph M. Beck, one of the attorneys who represented plaintiff on her second dissolution
petition, testified that, due to the dismissal of her first dissolution petition, plaintiff, in pursuing a
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second dissolution petition, had to relitigate all of the issues that had been previously litigated in the
first dissolution proceeding.
From this, we believe that a reasonable person could conclude that defendants were the
proximate cause of at least some of plaintiff's attorney fees. We acknowledge, as the trial court did,
that "divorces continue for all kinds of reasons" and that many factors, such as "decisions that
[plaintiff] made regarding counsel, regarding what to accept, what not to accept, how much
maintenance that she wanted and her feelings," may have contributed to the lengthy duration of the
second dissolution proceeding and, thus, perhaps not all of plaintiff's attorney fees were proximately
caused by defendants' alleged malpractice. We hold, however, that how much of plaintiff's attorney
fees was attributable to defendants' alleged malpractice versus how much was attributable to other
factors presented a genuine issue of material fact warranting a denial of the motion for summary
judgment. See Forsythe, 224 Ill. 2d at 280 (where the undisputed facts could lead reasonable
observers to divergent inferences, or where there is a dispute as to a material fact, summary judgment
should be denied).
Defendants argue that the trial court correctly determined that defendants' alleged malpractice
was not proximately related to plaintiff's claimed injuries, because defendants did not cause plaintiff
to lose her dissolution cause of action. According to defendants, a legal malpractice plaintiff must
demonstrate that, as a result of the defendant's negligence, the plaintiff lost his cause of action, and,
if the plaintiff's cause of action remained viable at the time the defendant was discharged, the
plaintiff cannot prove any set of facts that would demonstrate that the defendant's conduct caused
the plaintiff's injury.
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Like defendants' argument on the issue of actual damages, this argument must fail because
the law upon which defendants rely does not apply except where a plaintiff alleges that but for the
defendant's malpractice the plaintiff would not have irretrievably lost the cause of action. That
exception is present in each of the cases defendants cite in support of their argument. Cedeno v.
Gumbiner, 347 Ill. App. 3d 169, 170 (2004) (plaintiff alleged that, as a result of defendants'
negligence in serving an inadequate notice of claim on the personal injury defendant, the trial court
granted summary judgment against her in her personal injury case); Mitchell v. Schain, Fursel &
Burney, Ltd., 332 Ill. App. 3d 618, 619 (2002) (plaintiff alleged that, but for defendants' malpractice,
he would not have been foreclosed from pursuing his cause of action and obtaining a judgment);
Ignarski, 271 Ill. App. 3d at 523-24 (plaintiff alleged that, as a result of defendant's negligence in
failing to name the proper party within the statute of limitations, plaintiff's cause of action was lost).
None of the cases cited by defendants involves a plaintiff who alleges that, as a result of the
defendant's negligence, the plaintiff incurred attorney fees in an attempt to rectify the damage caused
by the defendant's negligence. Where a plaintiff alleges that the defendant's malpractice caused her
to incur attorney fees to rectify the defendant's malpractice, the plaintiff need not demonstrate that
her cause of action was lost to establish the existence of her injury, because she has not alleged that
she was injured by the loss of her cause of action. Rather, to establish her injury, the plaintiff must
establish that she incurred additional attorney fees. If she is unable to do so, then she is also unable
to establish that the defendant's malpractice caused her to incur additional attorney fees, because she
has not established that she actually did incur additional attorney fees.
In contrast, where a cause of action remains viable despite the defendant's malpractice and
after the defendant's discharge, it cannot be said that the plaintiff lost the cause of action due to the
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defendant's negligence, because the cause of action still existed at the time of the defendant's
discharge.3 Thus, where a plaintiff alleges that the defendant's malpractice caused the loss of the
cause of action, it is necessary for the plaintiff to demonstrate that the cause of action was actually
lost and did not remain viable at the time of the defendant's discharge. If the plaintiff is unable to
do so, then the plaintiff is, as a matter of law, unable to establish that the defendant caused the
alleged injury, because the injury itself--the loss of the cause of action--has not been established.
3. Breach of Duty
Defendants argue that, even if we find that the trial court erred in basing its grant of summary
judgment on a lack of actual damages and proximate cause, we should nonetheless affirm the trial
court's decision because plaintiff did not present any evidence that defendants breached their duty
to plaintiff. According to defendants, defendants' actions were part of the strategy employed in the
underlying case and thus are unreviewable, plaintiff did not disclose any expert witnesses who would
testify as to the standard of care, and no evidence was presented contradicting the testimony of
defendants' deposition witnesses who testified that defendants did not breach the standard of care.
The trial court found that there was a genuine issue of material fact with respect to defendants'
alleged breach of duty, and we agree.
3 The cause of action must be nonviable at the time of the defendant's discharge, because, if
it remained viable at the time of the defendant's discharge and another attorney was retained, the
subsequent attorney's failure to rectify the defendant's negligence acts as a superseding cause of the
loss of the action. Mitchell, 332 Ill. App. 3d at 321-22; Land v. Greenwood, 133 Ill. App. 3d 537,
540 (1985) (where plaintiff's cause of action remained viable at the time defendant attorney was
discharged, "successor counsel had the duty to preserve his client's cause of action").
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According to defendants, the decision to have plaintiff's first dissolution petition dismissed
was a strategic decision made in an attempt to shift the burden of proof to Terrell. Citing Person v.
Benke, 242 Ill. App. 3d 933 (1993), defendants claim that, because the decision was strategic, a court
may not review it. In Person, the plaintiff sued the defendant attorney for legal malpractice, alleging
that, as a result of the defendant's malpractice in the underlying dissolution proceeding, the plaintiff
lost custody of and visitation with his children. Person, 242 Ill. App. 3d at 934. The trial court
dismissed the plaintiff's complaint, holding in part that the plaintiff could not recover damages for
losing custody of and visitation with his children. Person, 242 Ill. App. 3d at 935. In holding that
the plaintiff could recover for losing custody of and visitation with his children, the Fourth District
adopted the ineffective-assistance-of-counsel standard articulated in Strickland v. Washington, 466
U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Person, 242 Ill. App. 3d at 940. In doing so,
the Fourth District noted that, under the Strickland standard, "a reviewing court will not review
counsel's conduct which involves an exercise of judgment, discretion, strategy, or trial tactics."
Person, 242 Ill. App. 3d at 940. The Fourth District specifically limited the application of its
decision to cases involving the question of "whether an attorney's alleged malpractice in
representation of that attorney's client in a divorce proceeding can serve as the basis for the client's
subsequent claim that he lost custody or visitation of his child as a direct result of the attorney's
alleged malpractice." Person, 242 Ill. App. 3d at 940.
In the present case, plaintiff did not allege that defendants caused her to lose custody of or
visitation with her children.4 Accordingly, the standard adopted in Person is inapplicable to the
present case. Defendants do not cite, and we cannot locate, any other legal malpractice case that
4 Plaintiff testified at her deposition that she does not have any children.
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prohibits courts from reviewing for malpractice a defendant attorney's claimed strategic decisions.
Thus, defendants' contention that the trial court's grant of summary judgment was correct because
the dismissal of plaintiff's first dissolution petition was strategic is without merit.
Defendants next argue that, because plaintiff did not disclose a witness under Supreme Court
Rule 213(f)(3) (210 Ill. 2d R. 213(f)(3)) who would testify as to the standard of care, she could not
have proved that defendants breached the standard of care. Rule 213(f)(3) delineates the information
a party must furnish during discovery about any controlled expert witnesses whom the party plans
to call at trial. 210 Ill. 2d R. 213(f)(3). Generally, a plaintiff must establish through expert testimony
the standard of care against which the defendant attorney's conduct must be measured, and the failure
to present such expert testimony is typically fatal to the plaintiff's cause of action. Barth v. Reagan,
139 Ill. 2d 399, 407 (1990). Where, however, "the common knowledge or experience of lay persons
is extensive enough to recognize or infer negligence from the facts, or where an attorney's negligence
is so grossly apparent that a lay person would have no difficulty in appraising it, expert testimony
as to the applicable standard of care is not required." Barth, 139 Ill. 2d at 407-08. Likewise, where
the defendant attorney admits the standard of care in a legal malpractice case, such admissions may
suffice to establish the standard of care and the plaintiff need not provide separate expert testimony.
Los Amigos Supermarket, Inc. v. Metropolitan Bank & Trust Co., 306 Ill. App. 3d 115, 131 (1999).
Although the record reveals that plaintiff did not disclose any controlled expert witnesses
prior to the summary judgment motion, we hold that such a failure did not warrant a grant of
summary judgment in favor of defendants on the issue of whether defendants breached their duty to
plaintiff. Plaintiff alleged that defendants breached their duty when Stogsdill was unprepared to go
to trial on her first dissolution petition and, as a result, had her first dissolution petition dismissed
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without her consent. If plaintiff is able to prove at trial that Stogsdill was unprepared and acted
without her consent in obtaining a dismissal of her first dissolution petition (as we will discuss, a
genuine issue of material fact exists as to whether plaintiff consented), we believe that such actions
would constitute negligence both well within the common knowledge of lay persons and so grossly
apparent that a lay person would have no difficulty in appraising it. Few, if any, duties are as basic
in an attorney-client relationship as the duty of an attorney to prosecute the client's cause of action.
See 134 Ill. 2d R. 1.2(a) ("A lawyer shall abide by a client's decisions concerning the objectives of
representation *** and shall consult with the client as to the means by which they are to be
pursued"); 134 Ill. 2d R. 1.3 ("A lawyer shall act with reasonable diligence and promptness in
representing a client"). Without the client's consent, the intentional dismissal of a cause of action
because the attorney is unprepared is an obvious breach of that duty. See 134 Ill. 2d R. 1.2(a); 134
Ill. 2d R. 1.4(b) ("A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation"). Accordingly, we do not believe
that plaintiff's failure to disclose an expert witness under Rule 213(f)(3) warranted summary
judgment in favor of defendants.
Moreover, we note that, in answering plaintiff's complaint, defendants admitted the following
allegations: that they "undertook a duty to render legal services to [plaintiff] in accordance with the
customs and practice of the profession in the DuPage County legal community" and that they
"specifically owed and undertook a duty to represent [plaintiff's] interests in the [f]irst [d]ivorce
[p]etition, which included, but was not limited to, preparing and being available to conduct the trial
in the [f]irst [d]ivorce [p]etition." By making such admissions, we believe that defendants
established the standard of care against which their conduct is to be measured. See Los Amigos
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Supermarket, 306 Ill. App. 3d at 131 (where the defendant attorney admitted that he owed a duty to
exercise a reasonable degree of care and skill in his representation of his client and that he was bound
by the Rules of Professional Conduct, the defendant's admissions sufficiently established the
standard of care).
Finally, defendants argue that plaintiff did not present any evidence contradicting the
testimony of defendants' deposition witnesses who testified that defendants did not breach the
standard of care. In support of their motion for summary judgment, defendants presented the
deposition testimony of Stogsdill, Nigohosian, William Scott (one of plaintiff's subsequent attorneys
in her dissolution case), Laura Urbik Kern (another of plaintiff's subsequent attorneys), Lyle Haskin
(another of plaintiff's subsequent attorneys), and Timothy Daw (Terrell's attorney in the dissolution
case). Stogsdill and Nigohosian testified that Stogsdill's actions that resulted in the dismissal of
plaintiff's first dissolution petition did not constitute a breach of duty by defendants. Scott, Kern,
and Haskin testified that, in reviewing plaintiff's dissolution file while representing plaintiff in her
dissolution case, they did not see anything that rose to the level of a breach of duty on the part of
defendants. Daw testified that he had no opinion as to whether defendants had committed
malpractice in their representation of plaintiff.
While we agree that nothing in the record directly contradicts the deposition testimony of
Scott, Kern, and Haskin that they did not see anything in the dissolution file indicating that
defendants had breached their duty to plaintiff, we do not believe that such testimony definitively
answers the question of whether defendants breached their duty. Rather, such testimony establishes
only that evidence of the alleged breach did not appear in the file reviewed by Scott, Kern, and
Haskin.
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Plaintiff alleged that defendants breached their duty to her in that Stogsdill was unprepared
for trial and that his actions, to which she did not consent, resulted in a directed finding on her first
dissolution petition. Although Stogsdill and Nigohosian testified that plaintiff agreed to have her
first dissolution petition dismissed in order to shift the burden of proof to Terrell, plaintiff testified
that she gave no such consent. Whether defendants breached their duty to plaintiff as she alleged
depends partly upon whether plaintiff consented to Stogsdill's actions in having her first dissolution
petition dismissed. As there is a dispute as to whether plaintiff consented, the trial court was correct
in finding that there was a genuine issue of material fact as to whether defendants breached their duty
to plaintiff. Forsythe, 224 Ill. 2d at 280 (where there is a dispute as to a material fact, summary
judgment should be denied).
B. Motion to Dismiss
Plaintiff next argues that the trial court erred in dismissing her counterclaim. A motion to
dismiss based upon section 2--619 of the Code raises issues of law and is thus reviewed de novo.
Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 411 (2002). In reviewing a motion to
dismiss, the appellate court must first determine if a genuine issue of material fact exists, thereby
precluding dismissal of the case. Guzman v. C.R. Epperson Construction, Inc., 196 Ill. 2d 391, 397
(2001). If no genuine issue of material fact exists, the reviewing court must determine whether
dismissal was proper as a matter of law. Guzman, 196 Ill. 2d at 397. A motion to dismiss brought
under section 2--619 concedes the truth of all well-pleaded allegations contained in the complaint.
Provenzale v. Forister, 318 Ill. App. 3d 869, 879 (2001).
In dismissing plaintiff's counterclaim, the trial court found that there was "no precedent for
making such a claim of breach of fiduciary duty or breach of contract on the same or similar
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operative facts of a legal malpractice case." We address plaintiff's breach of fiduciary duty and
breach of contract claims in turn.
Despite the fact that actions for legal malpractice and breach of fiduciary duty are
conceptually distinct, "when *** the same operative facts support actions for legal malpractice and
breach of fiduciary [duty] resulting in the same injury to the client, the actions are identical and the
later should be dismissed as duplicative." Majumdar v. Lurie, 274 Ill. App. 3d 267, 273-74 (1995);
see also Neade v. Portes, 193 Ill. 2d 433, 445 (2000) ("While pleading in the alternative is generally
permitted (see, e.g., Collins v. Reynard, 154 Ill. 2d 48, 50 (1992)), duplicate claims are not permitted
in the same complaint").
Here, plaintiff's claims for legal malpractice and breach of fiduciary duty were based on the
same operative facts and alleged the same injury. In her claim for legal malpractice, plaintiff alleged
that defendants committed legal malpractice when Stogsdill (1) was unprepared to go to trial on her
first dissolution petition because he was engaged in another trial; (2) without her consent, moved to
voluntarily nonsuit the first dissolution petition; and (3) without her consent, put plaintiff on the
stand, asked only her name and its spelling, and then rested plaintiff's case in chief, resulting in a
directed finding on her first dissolution petition. Plaintiff alleged the same acts and omissions in her
claim for breach of fiduciary duty, with the exception that plaintiff also alleged that Stogsdill placed
his own interests ahead of plaintiff's by scheduling, or allowing to be scheduled, a trial that conflicted
with the trial on plaintiff's first dissolution petition. In both her claim for legal malpractice and her
claim for breach of fiduciary duty, plaintiff alleged that "[b]ut for Stogsdill's acts and omissions the
trial would have commenced as scheduled and [plaintiff] would have been represented by
competently prepared counsel who would have obtained a dissolution of marriage and a court order
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disposing of marital assets." In addition, in both claims plaintiff sought compensation for the
attorney fees she paid defendants and the attorney fees and costs that she expended in pursuing her
second dissolution petition. From this comparison, it is apparent that plaintiff's breach of fiduciary
duty claim was simply a restatement of her claim for legal malpractice and, thus, was properly
dismissed as duplicative. See Calhoun v. Rane, 234 Ill. App. 3d 90, 95 (1992) (finding a claim for
breach of fiduciary duty to be duplicative of a claim for legal malpractice where the allegations in
the claims were "virtually identical").
Plaintiff acknowledges in her brief that "[t]he counterclaim essentially set forth the same facts
as [p]laintiff's legal malpractice claim," but points out the additional allegation that Stogsdill put his
interest ahead of plaintiff's. This allegation, however, does not alter our conclusion, as it is not an
operative fact. As the court in Majumdar noted, it is the operative facts and the injury that are
examined to determine if the claims are duplicative. Majumdar, 274 Ill. App. 3d at 273-74; see also
Neade, 193 Ill. 2d at 443 (citing Majumdar in emphasizing that the operative facts are the ones
examined in determining if a breach of fiduciary duty claim is duplicative of a medical malpractice
claim). The fact that Stogsdill may have put his own interest ahead of plaintiff's was not an operative
fact, because it was not the actual act that resulted in the lack of a dissolution judgment on plaintiff's
first dissolution petition. Neade, 193 Ill. 2d at 443 (holding the operative fact in a medical
malpractice/breach of fiduciary duty case to be the one that actually caused the decedent's death).
Rather, plaintiff alleged in both claims that she did not obtain a dissolution of marriage and
disposition of marital assets on her first dissolution petition because the trial court entered a directed
finding on that petition and, thus, could not have entered a dissolution judgment on that petition.
Accordingly, the operative fact in both claims was that Stogsdill, without plaintiff's consent, put her
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on the stand, asked only her name and its spelling, and then rested plaintiff's case in chief, which
resulted in the directed finding on her first dissolution petition. See Neade, 193 Ill. 2d at 443
(finding that the allegation that the defendant failed to order an angiogram was the operative fact in
the plaintiff's claims for medical malpractice and breach of fiduciary duty because the plaintiff
alleged that the failure to obtain an angiogram was the cause of the decedent's death).
Because plaintiff's claim for breach of fiduciary duty was based on the same operative facts
and alleged the same injury as her claim for legal malpractice, the dismissal of plaintiff's breach of
fiduciary duty claim was appropriate. Majumdar, 274 Ill. App. 3d at 273-74.
Turning to plaintiff's breach of contract claim, we note that our supreme court has held that
"a complaint against a lawyer for professional malpractice may be couched in either contract or tort
and that recovery may be sought in the alternative." Collins, 154 Ill. 2d at 50. Where a plaintiff
brings claims for legal malpractice and breach of contract based upon the same alleged conduct on
the part of the attorney and the claims are not pleaded in the alternative, dismissal of the breach of
contract claim as duplicative is appropriate. Radtke v. Murphy, 312 Ill. App. 3d 657, 665 (2000)
(affirming the dismissal of the plaintiff's breach of contract claim where it alleged the same facts as
the plaintiff's legal malpractice claim and was not pleaded in the alternative); Majumdar, 274 Ill.
App. 3d at 273 (same).
As plaintiff acknowledges in her brief, her claim for breach of contract was based on
essentially the same facts as her claim for legal malpractice, with the exception that, in her breach
of contract claim, plaintiff also alleged the existence of a written agreement between her and
Stogsdill, that Stogsdill held himself out as a reasonably well-qualified divorce and family law
attorney, and that she relied to her detriment upon Stogsdill's ability to provide legal services as a
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reasonably well-qualified attorney. Despite these additional allegations, plaintiff alleged that
defendants breached their contract in the same manner that they committed legal malpractice. More
specifically, in her claim for breach of contract, plaintiff alleged that Stogsdill:
"breached his agreement with [plaintiff] by failing to be properly prepared for trial which was
to commence on December 4, 2001 [sic], representing to the trial court that he was
unprepared for trial, and failing to put on the requisite proofs in [plaintiff's] case in chief
which resulted in a directed finding which was adverse to [plaintiff's] interests."
Likewise, in her claim for legal malpractice, plaintiff alleged that Stogsdill told the trial court
that he was unprepared; that he failed to put on adequate proofs in her case in chief, resulting in a
directed finding on plaintiff's first dissolution petition; and that, but for Stogsdill's actions, she would
have been represented by prepared counsel and would have obtained a dissolution. Accordingly, we
determine that plaintiff's breach of contract claim was based upon the same alleged conduct on
Stogsdill's part as plaintiff's legal malpractice claim. See Majumdar, 274 Ill. App. 3d at 273 (finding
that the plaintiffs' breach of contract claim was based upon the same conduct alleged in the plaintiffs'
legal malpractice claim where the breach of contract claim incorporated and restated the same facts
alleged in the legal malpractice claim, with the exception that the breach of contract claim also
alleged that the plaintiffs had performed all aspects of their contract with the defendant).
Although plaintiff's claims for breach of contract and legal malpractice were based upon the
same conduct, they should not have been dismissed if they were pleaded in the alternative. See
Collins, 154 Ill. 2d at 50 (recovery for legal malpractice and breach of contract may be sought in the
alternative); see also Radtke, 312 Ill. App. 3d at 665. Plaintiff argues in her brief that each of her
claims--legal malpractice, breach of fiduciary duty, and breach of contract--were "premised upon
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alternate theories of recovery." But plaintiff does not point out, and we cannot find, anything in the
record that demonstrates that plaintiff actually pleaded, or even intended to plead, her claims for
breach of fiduciary duty and breach of contract in the alternative to her legal malpractice claim.
Rather, plaintiff brought a single-count complaint for legal malpractice, which she never amended.
Following summary judgment in favor of defendants on that claim, plaintiff brought by way of
counterclaim the additional claims of breach of fiduciary duty and breach of contract. Nowhere in
the counterclaim did plaintiff allege that the claims were brought in the alternative to her failed legal
malpractice claim.5 Moreover, neither before nor after the trial court's grant of summary judgment
on her original complaint did plaintiff attempt to file an amended complaint alleging all three of her
claims, which further indicates that plaintiff did not intend to plead the three claims in the
alternative. Thus, as plaintiff's legal malpractice claim and breach of contract claim were based upon
the same alleged conduct and were not pleaded in the alternative, dismissal of the breach of contract
claim was proper. See Radtke, 312 Ill. App. 3d at 665; Majumdar, 274 Ill. App. 3d at 273.
Plaintiff cites two cases in support of her argument that her breach of contract claim was not
duplicative of her legal malpractice claim: Shaffer v. Respect, Inc., No. 97--C--4482 (N.D. Ill. March
30, 1999), and Reiff v. Much Shelist Freed Denenberg, Ament & Rubenstein, P.C., No. 03--C--1939
(N.D. Ill. October 23, 2003). We first note that Shaffer and Reiff were cases decided by the United
States District Court. As such, the cases are not binding upon state courts, but instead are only
5 We also note that in neither her motion for leave to file the counterclaim nor her response
to defendants' motion to dismiss the counterclaim did plaintiff allege or argue that the breach of
fiduciary duty and breach of contract claims were brought in the alternative to her legal malpractice
claim.
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persuasive authority. People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 127
(2001). That aside, both Shaffer and Reiff are readily distinguishable from the present case.
Although the courts in both of those cases held that the plaintiffs' claims for breach of contract were
not duplicative of their claims for legal malpractice, in both cases the plaintiffs had specifically
pleaded their claims for breach of contract in the alternative to their claims for legal malpractice.
As discussed, plaintiff in the present case did not plead her claim for breach of contract in the
alternative.
Plaintiff next contends that her claims for breach of fiduciary duty and breach of contract
should not have been dismissed, because neither a claim for breach of fiduciary duty nor a claim for
breach of contract requires that a plaintiff prove "actual damages" as required in a legal malpractice
claim. Thus, according to plaintiff, her inability to establish actual damages under her legal
malpractice claim should not have precluded her from pursuing causes of action that do not have the
same requirement. Plaintiff's argument misses the mark, however, because her claims for breach of
fiduciary duty and breach of contract were not dismissed for failing to allege recoverable damages,
but instead were dismissed because they were duplicative of her legal malpractice claim. The
relevant inquiry in determining whether claims are duplicative is not whether the claims are
composed of the same legal elements, but whether the claims allege the same operative facts and
injury (Majumdar, 274 Ill. App. 3d at 273-74 (breach of fiduciary duty)) or whether the claims are
based upon the same alleged conduct (Radtke, 312 Ill. App. 3d at 665 (breach of contract)). As
discussed, the application of these tests reveals that plaintiff's claims for breach of fiduciary duty and
breach of contract were, in fact, duplicative of her claim for legal malpractice.
CONCLUSION
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For the foregoing reasons, the judgment of the Du Page County circuit court granting
defendants summary judgment on plaintiff's legal malpractice complaint is reversed. The dismissal
of plaintiff's counterclaim is affirmed. The cause is remanded for further proceedings.
Affirmed in part and reversed in part; cause remanded.
McLAREN and SCHOSTOK, JJ., concur.
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