Zych v. Jones

• Decision Date: 15 May 1980
• Docket Number: No. 79-638,79-638
• Citation: 406 N.E.2d 70,84 Ill.App.3d 647,40 Ill.Dec. 369
• Parties: , 40 Ill.Dec. 369 Stanley ZYCH, Plaintiff-Appellee, v. J. Edward JONES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 70

406 N.E.2d 70

84 Ill.App.3d 647, 40 Ill.Dec. 369

Stanley ZYCH, Plaintiff-Appellee, v. J. Edward JONES, Defendant-Appellant.

No. 79-638.

Appellate Court of Illinois, First District, Fourth Division.

May 15, 1980.

J. Edward Jones, Blue Island, for defendant-appellant.

Medard M. Narko, Chicago, for plaintiff-appellee.

ROMITI, Justice:

A default judgment was entered in a prior action against the present plaintiff Stanley Zych. Zych then sued J. Edward Jones, the attorney who had filed his appearance in the first action alleging that he had been damaged by Jones' alleged legal malpractice. The trial court entered a partial summary judgment for the plaintiff on the issue of liability and sent the question of damages to the jury which returned a verdict for the plaintiff for $17,000. We reverse and remand holding that there was a question of fact whether the defendant had ever been retained by the plaintiff, that the plaintiff failed to prove that the judgment would not have been entered but for the defendant's negligence, that the damages recovered were, for the most part, for a different period than that alleged in the complaint and that the plaintiff's evidence at the first trial was not sufficient to support a finding that these latter damages were caused in any way by the default judgment.

The plaintiff, Stanley Zych, on July 25, 1975 filed a verified complaint alleging that the defendant, J. Edward Jones, an attorney, undertook his (plaintiff's) defense in case 71 M1-11636 (hereinafter referred to as the automobile case); that defendant after filing his appearance in the automobile case failed to appear when the case was called on March 27, 1974, resulting in the entry of a default judgment against plaintiff; that as a result, plaintiff's driver's license was, unknown to him, suspended pending satisfaction of the judgment; that plaintiff discovered this when he tried to renew his license; that plaintiff immediately put the defendant on notice and requested the problem be resolved, and that as a result of the defendant's neglect, the plaintiff suffered the following damages:

(a) he was unable to work from March 19, 1975 to April 15, 1975 and was not recompensed for the loss of income;

(b) after repeated attempts to secure action by defendant, he was forced to secure his personal counsel to investigate the problems;

(c) he suffered physical and emotional damages.

The plaintiff sought damages in the amount of $33,200 plus attorney's fees and costs.

In his answer, the defendant admitted that he filed the plaintiff's appearance as a favor to him and at the request of his employer George F. Mueller & Sons, Inc. (the corporation) "without compensation and without appreciation." He also admitted that he did not appear at the trial date. He contended it was plaintiff's duty to watch the case and be present. He denied that plaintiff ever notified him of the suspension; he did deliver a check in payment of the default judgment on Mueller's instruction.

Plaintiff thereafter served defendant with a request to admit the authenticity of the order of suspension and a request to admit that defendant filed an appearance for plaintiff in the automobile case but failed to appear on March 27, 1974 as a result of which a default judgment was entered against plaintiff on that date and that no action was taken to vacate the default.

After the defendant failed to respond to these requests, the plaintiff moved for summary judgment on the issue of liability, contending that defendant admitted that he did not appear at the trial although he had filed an appearance and that a default judgment was entered and the plaintiff's driver's license was suspended. Plaintiff contended that there was no question of fact as to liability. Plaintiff filed no affidavits with the motion.

The defendant filed two affidavits in opposition. In the first George Mueller, one of the two owners and active managers of the corporation, swore that plaintiff suddenly stopped working for the corporation on March 21, 1975, that he, affiant, called plaintiff after about two weeks to find out why he had not come to work but plaintiff cursed and hung up without giving any reason. Mueller further stated under oath that the corporation had work for plaintiff and wanted him to work but he would not return to his job; that if plaintiff had returned, affiant would have taken steps to secure his license for him or would have given him other tasks pending its reacquisition. Affiant instructed defendant to pay the judgment rendered against the corporation and plaintiff and it was paid on March 26, 1975 with money furnished by the corporation. Finally, affiant swore that defendant filed the appearance on affiant's instruction so that no judgment would be taken until plaintiff decided whom he wanted to represent him.

The defendant in his own affidavit swore that Mueller asked defendant to file plaintiff's appearance since he had to file the corporation's; that plaintiff at that time stated he would let affiant know if he desired him to be his attorney and if he did, make arrangements as to fees; that plaintiff never notified defendant he wanted him to represent him nor paid him any fee nor made any arrangement therefor. Defendant further stated that the plaintiff had no defense to the automobile case. He also stated that plaintiff never notified him that his license had been suspended, and that the corporation had been ready, willing and able at all times to pay the judgment and would have done so if affiant had requested it, which he would have done if he had notice of the suspension of plaintiff's license.

The trial court granted plaintiff's motion for summary judgment as to liability and a jury trial was held on the issue of damages.

At trial plaintiff testified that on March 19, 1975, after he discovered his driver's license was revoked, he was informed by his employer "No license, no work," that his license was not restored until April 15, 1975, that he was not compensated by his employer from March 19, 1975 until April 15, 1975, losing four weeks of salary at $250 per week; that he remained unemployed from May 29, 1975 until July 24, 1976 during which time he received unemployment compensation and after that was employed by another company at a lesser salary. He also testified that no one from his place of employment talked to him for three months, at which time his employer called him but made no job offer.

The defendant attempted on cross-examination to ask questions as to the collision for which judgment was rendered. The plaintiff objected on the grounds of irrelevancy and the objection was sustained.

The defendant did not testify on his own behalf but produced several witnesses. The first, Jo Ann Prather, a manager of the corporation, testified that plaintiff refused to use a driver until his license was restored. Mueller likewise testified that he would have furnished a driver to take plaintiff on his rounds until his license was restored but that the plaintiff refused the offer and walked out on him. He further testified that after the judgment was paid, he called plaintiff and asked him to come back but plaintiff refused and swore at him. Leland Smith, a sales manager for the corporation, testified he heard Mueller tell plaintiff on the telephone he would provide a driver until his license was "OK."

In closing argument plaintiff asked for $1,000 damages for the lost salary from March 19 to April 15, 1975 and, over objection of the defendant, for $27,600 for the reduced salary from August 1976 to December 6, 1978, the date of the trial.

The jury returned a verdict for plaintiff in the amount of $17,000.

I.

It is well established in Illinois that a motion for summary judgment should only be granted if the pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact. (Malloy v. Santucci Construction Co. (1979), 78 Ill.App.3d 249, 397 N.E.2d 125, 33 Ill.Dec. 792; Tripp v. Hale (1979), 74 Ill.App.3d 200, 392 N.E.2d 748, 30 Ill.Dec. 93; Libby-Broadway Drive-In, Inc. v. McDonald's System, Inc. (1979), 72 Ill.App.3d 806, 391 N.E.2d 1, 28 Ill.Dec. 802.) The right of the party to summary judgment must be clear and free from doubt. (Cuthbert v. Stempin (1979), 78 Ill.App.3d 562, 396 N.E.2d 1197, 33 Ill.Dec. 473; Chiero v. Chicago Osteopathic Hospital (1979), 74 Ill.App.3d 166, 392 N.E.2d 203, 29 Ill.Dec. 646; Cantu v. Utility Dynamics Corp. (1979), 70 Ill.App.3d 260, 387 N.E.2d 990, 26 Ill.Dec. 160.) The trial court erred in entering the partial summary judgment since the defendant's affidavits clearly showed the existence of a genuine issue of material fact and the plaintiff's right to recover was not clear and free from doubt.

In order to recover from the defendant the plaintiff was required to establish that the defendant owed a duty to the plaintiff and breached that duty. (Mick v. Kroger Co. (1967), 37 Ill.2d 148, 224 N.E.2d 859.) The defendant conceded that he failed to appear when the case was called on March 27, 1974; however, he denied that he had any duty to appear. In his motion for summary judgment plaintiff relied solely on defendant's admission that he had filed an appearance for plaintiff and on his own...