Purmal v. Robert N. Wadington & Associates

• Decision Date: 12 November 2004
• Docket Number: No. 1-03-3672.,1-03-3672.
• Citation: 289 Ill.Dec. 578,820 N.E.2d 86,354 Ill. App.3d 715
• Parties: Marthe C. PURMAL, Plaintiff-Appellant/Cross-Appellee, v. ROBERT N. WADINGTON AND ASSOCIATES, and Robert A. Kezelis, Defendants-Appellees (Robert N. Wadington, Defendant-Appellee/Cross-Appellant).
• Court: United States Appellate Court of Illinois

820 N.E.2d 86

354 Ill. App.3d 715

289 Ill.Dec. 578

Marthe C. PURMAL, Plaintiff-Appellant/Cross-Appellee, v. ROBERT N. WADINGTON AND ASSOCIATES, and Robert A. Kezelis, Defendants-Appellees (Robert N. Wadington, Defendant-Appellee/Cross-Appellant).

No. 1-03-3672.

Appellate Court of Illinois, First District, Fourth Division.

November 12, 2004.

Rehearing Denied December 21, 2004.

Marthe C. Purmal, Chicago, pro se.

Robert N. Wadington, Robert N. Wadington & Associates, Chicago, for Appellees and Appellee/Cross-Appellant.

Robert A. Kezelis, Palos Heights, pro se.

Justice THEIS delivered the opinion of the court:

Plaintiff Marthe C. Purmal, an attorney, filed this legal malpractice action pro se against her former lawyers, defendants Robert N. Wadington, Robert N. Wadington & Associates (Wadington & Associates), and Robert A. Kezelis (collectively, defendants). She now appeals from the trial court's orders dismissing her complaint upon defendants' motions to dismiss under sections 2-615 and 2-619 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615, 5/2-619 (West 2002)). Additionally, Wadington cross-appeals from an order of the court dismissing his cross-complaint upon Purmal's motion. For the following reasons, we affirm the dismissals of both Purmal's complaint and Wadington's cross-complaint.

This is the second time these parties have been before this court. In the first appeal, Purmal v. Cooke, No. 1-02-0004 (December 19, 2002) (unpublished under Supreme Court Rule 23), we found the following facts. In May 1998, the firm of French, Kezelis & Kominiarek filed a defamation action on Purmal's behalf against her co-employee, Richard Cooke. Purmal's employer, Continental Casualty Company (commonly known as CNA), provided a defense and stated that it would indemnify Cooke. Shortly thereafter, CNA terminated Purmal's employment and she filed a federal employment discrimination action against CNA, which was unrelated to her defamation case.

In March 2001, Kezelis terminated his employment at French, Kezelis & Kominiarek and accepted a position at Wadington & Associates. Purmal agreed that Kezelis would continue to represent her in the defamation action after he joined that firm. On March 13, 2001, Purmal signed a contingency fee contract with Wadington & Associates. On April 17, 2001, the trial court entered an order substituting Wadington & Associates as Purmal's new counsel.

Thereafter, Purmal entered into negotiations with CNA concerning her federal employment discrimination action. She agreed to dismiss her federal discrimination lawsuit with prejudice and with no payment to her. CNA negotiated with Purmal regarding her defamation action, without any notice to Wadington & Associates. In August 2001, Purmal accepted a settlement agreement in which CNA agreed to pay her six yearly payments amounting to $219,332.94 to settle her defamation claim.

Purmal then terminated the legal services of Wadington & Associates and the firm filed a motion to withdraw from the case. At a hearing on November 1, 2001, Purmal and counsel for CNA acknowledged that a settlement had been reached. The court dismissed the case with prejudice and retained jurisdiction on the issue of attorney fees. Wadington & Associates petitioned the court for one-third of the settlement pursuant to the March 13, 2001 contingency fee contract between Purmal and Wadington & Associates. Wadington & Associates stated that it had performed substantial work on Purmal's defamation claim, including reviewing the entire file, performing legal research, communicating and meeting with Purmal, participating in discovery production, preparing for depositions, attending court appearances and communicating with opposing counsel. In her response to Wadington & Associates' fee petition, Purmal stated that the firm was not entitled to fees because it did not perform any work to effect a recovery. She argued that Wadington & Associates obtained her case file only two weeks before she entered into a settlement with CNA. Wadington & Associates replied that Purmal did not settle her case until after she had voluntarily retained the firm pursuant to the contingency fee agreement.

On December 12, 2001, following a hearing, the trial court found that Purmal voluntarily entered into an enforceable contingency fee contract and that Wadington & Associates was entitled to one-third of all settlement monies. Purmal then appealed the trial court's ruling to this court, alleging that Wadington & Associates' collection of one-third of the settlement constituted an excessive fee under Rule 1.5 of the Rules of Professional Conduct. 134 Ill.2d R. 1.5. In our decision, this court found, contrary to Purmal's claims, that Wadington & Associates presented sufficient evidence of significant legal services rendered and that Kezelis was an experienced attorney. Purmal v. Cooke, No. 1-02-0004 (December 19, 2002) (unpublished under Supreme Court Rule 23). The court found no basis upon which to conclude that the trial court abused its discretion in determining that Wadington & Associates was entitled to the fee stated in the contingency fee agreement. Additionally, this court rejected Purmal's claims that she did not intend to hire Wadington & Associates as her attorneys based on the fact that the contingency fee agreement clearly stated that Purmal hired the firm and that Purmal voluntarily entered into that agreement. Contrary to Purmal's contention that she fired that firm before any services were rendered, the court found that Wadington & Associates rendered significant legal services on her behalf. This court then found nothing in the record or the contract to justify a departure from the agreement into which the parties entered and held "the parties to the terms of their agreement," affirming the trial court's award of attorney fees to Wadington & Associates. Purmal filed a petition for rehearing to this court and a petition for leave to appeal to the Illinois Supreme Court, both of which were denied.

While her appeal was pending, Purmal filed the complaint at issue in this case. In count I, she alleged malpractice against Wadington individually. In count II against Wadington, she alleged "wilful and wanton malpractice" and sought punitive damages. In count III against Wadington and Wadington & Associates, Purmal alleged "tortious interference with contract." In count IV against Wadington, she alleged that he committed fraud when he filed a petition for attorney fees on behalf of his firm when he knew that no work had been performed by him or his firm. In count V, she alleged malpractice against Kezelis, and in count VI,¹ she alleged "willful and wanton malpractice" against Kezelis.

Wadington and Wadington & Associates filed a motion to dismiss under sections 2-615 and 2-619, arguing that res judicata and collateral estoppel barred Purmal's claims based on the trial and appellate courts' decisions in the fee petition action, she failed to plead sufficient facts to support her allegations, and punitive damages are not recoverable in a legal malpractice action. Kezelis also filed a motion to dismiss pursuant to sections 2-615 and 2-619, contending that Purmal's claims were barred by res judicata and collateral estoppel and otherwise failed to state a claim.

On January 30, 2003, the court granted both of defendants' motions to dismiss, dismissing all counts of the complaint under sections 2-615 and 2-619. The court gave Purmal leave to amend some of the allegations in the complaint, not including those claims dismissed pursuant to res judicata or collateral estoppel. Purmal then filed a motion to vacate that order, which was denied on May 8, 2003. Purmal's next motion, a motion to clarify these orders, was denied on November 14, 2003, when the court dismissed her entire complaint. Purmal then filed a timely notice of appeal.

On July 16, 2003, Wadington filed an amended cross-complaint against Purmal for breach of contract.² Purmal moved to dismiss this amended cross-complaint under sections 2-615 and 2-619, challenging Wadington's right to recover fees and arguing that his complaint did not state a cause of action. On November 14, 2003, the court granted Purmal's motion to dismiss Wadington's cross-complaint. Wadington was allowed to file a late notice of cross-appeal.

We first review Purmal's appeal from the dismissal of her complaint under sections 2-615 and 2-619 and address each count in turn. In ruling on a section 2-615 motion to dismiss, we must accept all well-pleaded facts as true. Village of South Elgin v. Waste Management of Illinois, Inc., 348 Ill.App.3d 929, 930, 284 Ill.Dec. 868, 810 N.E.2d 658, 662 (2004). Similarly, a motion to dismiss pursuant to section 2-619 admits all well-pleaded facts and the reasonable inferences capable of being drawn therefrom. Waste Management of Illinois, Inc.,348 Ill.App.3d at 930,284 Ill.Dec. 868,810 N.E.2d at 662. However, conclusions of law and conclusory factual allegations not supported by allegations of specific facts are not deemed admitted. Waste Management of Illinois, Inc.,348 Ill.App.3d at 930-31,284 Ill.Dec. 868,810 N.E.2d at 662. When ruling on either motion to dismiss, the trial court interprets all pleadings and supporting documents in the light most favorable to the nonmoving party. Lucas v. Taylor, 349 Ill.App.3d 995, 998, 285 Ill.Dec. 483, 812 N.E.2d 72, 75 (2004). Illinois is a fact-pleading jurisdiction that requires a plaintiff to present a legally and factually sufficient complaint and a plaintiff must allege sufficient facts to state all the elements of the asserted cause of action. Weis v. State Farm Mutual Automobile Insurance Co., 333 Ill.App.3d 402, 405, 267 Ill.Dec. 172, 776 N.E.2d 309, 311 (2002). We review the trial court order's dismissing plaintiff's complaint under sections 2-615 and 2-619 de novo. Martinez v. Department of Public Aid, 348 Ill.App.3d 788, 790, 284 Ill.Dec. 818, 810...