Cedeno v. Gumbiner

• Citation: 282 Ill.Dec. 600,347 Ill. App.3d 169,806 N.E.2d 1188
• Decision Date: 11 March 2004
• Docket Number: No. 1-03-0945.,1-03-0945.
• Parties: Leticia CEDENO, as Special Administrator of the Estate of Petra Cedeno, deceased, Plaintiff-Appellant, v. James Ellis GUMBINER, d/b/a The Law Offices of James Ellis Gumbiner & Associates, and Bruce D. Goodman, individually, and d/b/a Steinberg, Polacek and Goodman, The Law Offices of Steinberg, Polacek & Goodman, and Emilo Machado, individually, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

806 N.E.2d 1188

347 Ill. App.3d 169

282 Ill.Dec. 600

Leticia CEDENO, as Special Administrator of the Estate of Petra Cedeno, deceased, Plaintiff-Appellant, v. James Ellis GUMBINER, d/b/a The Law Offices of James Ellis Gumbiner & Associates, and Bruce D. Goodman, individually, and d/b/a Steinberg, Polacek and Goodman, The Law Offices of Steinberg, Polacek & Goodman, and Emilo Machado, individually, Defendants-Appellees.

No. 1-03-0945.

Appellate Court of Illinois, First District, Fourth Division.

March 11, 2004.

Kupets & DeCaro, P.C., Chicago (Dennis J. DeCaro, of counsel), for Appellant.

Mulherin, Rehfeldt & Varchetto, P.C., Wheaton (Patricia L. Argentati, of counsel), for Appellee Gumbiner.

Alholm, Monahan, Keefe & Klauke, LLC, Chicago (Peter A. Monahan and Nizam Arain, of counsel), for Appellee Goodman.

Justice HARTMAN delivered the opinion of the court:

Plaintiff appeals from the circuit court's 2-619 dismissal of her legal malpractice action against defendants, her former attorneys; James Ellis Gumbiner, the Law Offices of James Ellis Gumbiner & Associates (Gumbiner), Bruce D. Goodman, Emilio Machado, and the Law Office of Steinberg, Polacek & Goodman (Goodman).¹ On appeal, plaintiff questions whether the circuit court erred in determining defendants' negligence did not proximately cause plaintiff's defeat in her personal injury lawsuit against the Chicago Transit Authority (CTA). For the reasons that follow, the circuit court's judgment is affirmed.

On April 29, 1999, plaintiff, Petra Cedeno, was injured when she fell while exiting a CTA bus. In an effort to commence a personal injury lawsuit against CTA, she retained as her attorney, Gumbiner.² Shortly thereafter, Gumbiner referred the case to Goodman, who sent to CTA a "Notice of Claim for Personal Injuries" (Notice) on September 8, 1999. The Notice alleged incorrectly that plaintiff's accident occurred on April 30, 1999; instead of the actual date, April 29, 1999. In a letter dated January 13, 2000, plaintiff terminated her relationship with Goodman.

Proceeding with her lawsuit against CTA, plaintiff retained Patrick Cummings and the Law Offices of Ciardelli & Cummings (Cummings).³ Through Cummings, plaintiff filed her complaint on April 20, 2000, nine days within the statute of limitations. She asserted the accident date was April 29, 1999, which CTA denied in its answer. On September 13, 2000, CTA moved for summary judgment, citing plaintiff's failure to comply strictly with the notice requirements set forth in section 41 of the Metropolitan Transit Authority Act (MTAA). 70 ILCS 3605/41 (West 1998) (section 41). Specifically, CTA argued plaintiff's Notice contained the wrong accident date, and further asserted the date varied from the correct date stated in the complaint, which CTA previously denied in its answer.

In response, plaintiff asserted CTA's failure to provide her with a copy of section 41 as required by that section, precluded it from using the section's formal notice requirements as grounds for dismissal. Plaintiff also claimed the defect was a de minimus typographical error, and that compliance with section 41 should be "liberally construed" in her favor, in accordance with the amendment to this section.

On February 7, 2001, the circuit court granted CTA's motion for summary judgment, dismissing the cause with prejudice. Thereafter, on February 15, 2001, Cummings filed a timely notice of appeal from the circuit court's grant of summary judgment and, weeks later, filed an amended notice of appeal. Plaintiff's appeal was dismissed by the appellate court on July 19, 2001, for want of prosecution.

On August 23, 2001, plaintiff commenced the instant legal malpractice action, naming both Gumbiner and Goodman as defendants.⁴ Gumbiner and Goodman filed separate motions to dismiss plaintiff's malpractice action. The circuit court found plaintiff's Notice sufficient to trigger CTA's affirmative duty to furnish plaintiff with a copy of section 41 of the MTAA. Accordingly, the court granted defendants' motions, dismissing plaintiff's cause with prejudice.⁵ Plaintiff timely appeals.

Plaintiff contends defendants were negligent for providing defective written notice of her accident to CTA. It is her position that the Notice provided is tantamount to no notice at all since the inclusion of the correct date is an indispensable element of notice under section 41. Relying on Froumer v. Chicago Transit Authority, 25 Ill.App.2d 312, 315, 167 N.E.2d 26 (1960), and Yokley v. Chicago Transit Authority, 307 Ill.App.3d 132,136-37, 240 Ill.Dec. 358, 717 N.E.2d 451 (1999) (Yokley), plaintiff argues without the correct accident date, written notice cannot comply strictly with the requirements of section 41.

Plaintiff acknowledges section 41 was amended in 1998, imposing upon CTA a duty to furnish a copy of section 41 to any possible claimants who notify CTA of an accident or cause of action. She urges, however, CTA's duty never arose here since it never actually received notice of an accident occurring on April 29, 1999. She believes the issue of whether CTA had a duty to provide her with a copy of section 41 is irrelevant to the question of whether defendants were negligent for providing defective notice. Plaintiff concludes that "[n]othing in the amended language [of section 41] relieved the individual providing `Notice' from providing the correct date of accident." Plaintiff cites two cases that have addressed section 41 as amended, Fields v. Chicago Transit Authority, 319 Ill.App.3d 683, 253 Ill.Dec. 328, 745 N.E.2d 102 (2001) (Fields), and Puszkarska v. Chicago Transit Authority, 322 Ill.App.3d 75, 255 Ill.Dec. 51, 748 N.E.2d 755 (2001) (Puszkarska).

In Fields, plaintiff was injured on a CTA bus and handed the driver a courtesy card containing information regarding her accident. On appeal, she argued the card satisfied the notice requirement, triggering CTA's duty to provide her with a copy of section 41, which it did not do. The court found CTA's failure to comply with its obligation caused it to waive the formal notice requirements, leaving the court to determine only whether the information on the card was sufficient to trigger CTA's duty. In finding the card adequate, the court noted that "the most significant information provided to CTA was the date and time of the accident." Fields, 319 Ill.App.3d at 687-90, 253 Ill.Dec. 328, 745 N.E.2d 102. Plaintiff extrapolates from Fields that reasonable notice must include the correct date and hour.

In Puszkarska, plaintiff filed with CTA written notice containing only one defect— the hour of the accident was omitted. Plaintiff argued her notice actuated CTA's duty to provide her with a copy of section 41, which it neglected to do. CTA argued plaintiff's notice should be disregarded as an initial communication for failure to conform stringently to the detailed requirements of section 41. Construing the initial communication liberally, the court determined amended section 41 requires only that the initial communication be in writing to trigger CTA's duty, and CTA's nonperformance caused it to waive plaintiff's formal notice obligations. Puszkarska, 322 Ill.App.3d at 78-79, 255 Ill.Dec. 51, 748 N.E.2d 755.

Defendants respond that plaintiff misconstrues the paramount issue in this case, suggesting the issue is not whether the initial Notice complied strictly with the formal requirements of section 41; rather, whether the initial Notice was sufficient to trigger CTA's duty to provide a copy of section 41 to plaintiff, thereby precluding CTA from dismissing the action on grounds of defective notice.

Defendants likewise rely on Fields and Puszkarska, correctly pointing out these cases recognize section 41's amendment modified the overall procedural scheme for filing a claim against CTA. They argue the amendment to section 41, which allows for initial written notice to be "liberally construed," abrogates plaintiff's duty to adhere strictly to the detailed formal notice requirements in situations, as here, where CTA fails to furnish plaintiff with section 41. Once CTA's duty is triggered but goes unsatisfied, CTA may not dismiss a claim based solely on plaintiff's non-compliance. Therefore, they maintain, the adverse impact of their defective initial Notice was negated, and the strength of plaintiff's underlying case against CTA was left intact.

Defendants insist they could not have proximately caused plaintiff's damages since her case remained actionable at the time of their discharge as plaintiff's attorneys. Citing Land v. Greenwood, 133 Ill. App.3d 537, 540-41, 88 Ill.Dec. 595, 478 N.E.2d 1203 (1985) (Land) and Mitchell v. Schain, Fursel, & Burney, Ltd., 332 Ill. App.3d 618, 620-21, 266 Ill.Dec. 122, 773 N.E.2d 1192 (2002) (Mitchell),

defendants aver that where the conduct of a successor attorney constitutes the independent and superseding cause of plaintiff's damages, the discharged attorney cannot be found to have committed legal malpractice. Defendants posit the circuit court erroneously dismissed plaintiff's case against CTA and speculate that, if plaintiff's appeal had been pursued, the appellate court would have ruled in her favor, applying the holdings of Fields and Puszkarska.⁶

Plaintiff replies that Cummings could not have rectified defendants' negligence since the six-month notice period had lapsed.⁷ Although plaintiff filed her complaint against CTA on April 20, 2000, she inconsistently maintains her case was no longer viable (or destined for failure), at the time of defendants' discharge on January 13, 2000.

The standard of review of a motion to dismiss under section 2-619 is de novo. Pochopien v. Marshall, 315 Ill. App.3d 329, 335, 247 Ill.Dec. 937, 733 N.E.2d 401 (2000)

. A section 2-619 motion admits the legal sufficiency of the complaint and raises defects, defenses or other affirmative matters which appear on the face of the complaint or are established by external submissions...