DeSeno v. Becker

Decision Date07 July 1997
Docket NumberNo. 1-95-0672,1-95-0672
Citation683 N.E.2d 159,291 Ill.App.3d 421
Parties, 225 Ill.Dec. 215 Anthony DeSENO, Plaintiff-Appellant, v. Alvin BECKER, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Serpico, Novelle & Navigato, Ltd., Chicago (Kevin J. O'Shea, of counsel), for Plaintiff-Appellant.

Querrey & Harrow, Ltd., Chicago (Michael S. Loeffler, Andrew S. Nadolna, Michael Resis, of counsel), for Defendant-Appellee.

Justice O'BRIEN delivered the opinion of the court:

Plaintiff, Anthony DeSeno, appeals from the trial court's entry of summary judgment in favor of defendant, Alvin Becker, an Illinois attorney, on the issue of legal malpractice. We affirm.

On February 14, 1985, the Chicago police superintendent filed charges against DeSeno before the police board of the City of Chicago (Board). DeSeno was accused of violating departmental rules. Following a three-day hearing, the Board found DeSeno guilty of all charges and ordered him discharged from the police force.

Becker timely filed a complaint on behalf of DeSeno for administrative review of the Board's decision. The complaint named only the Board as defendant. On March 17, 1987, it was dismissed for want of prosecution.

DeSeno then retained another attorney who refiled a complaint for administrative review. On January 27, 1989, the circuit court found the Board's order was against the manifest weight of the evidence and ordered the cause remanded for rehearing and for a sanction of less than discharge. On May 18, 1989, the Board reconsidered the charges, found DeSeno guilty of minor departmental rules, and suspended him from the police force for one year.

The superintendent of police then timely filed a complaint for administrative review of the Board's new findings. The circuit court affirmed DeSeno's suspension.

The superintendent of police appealed to the appellate court seeking reversal of the circuit court's decision. He argued that DeSeno was barred from seeking any administrative review because his original complaint had failed to name and serve summons upon all the necessary parties within the 35-day limitations period set forth in the Illinois Administrative Review Law. Ill.Rev.Stat.1985, ch. 110, pars. 3-103, 3-107. More specifically, the superintendent argued that DeSeno's first petition in the case was fatally defective because it failed to name and serve summons upon him. The appellate court agreed with the superintendent and reversed the circuit court decision. Consequently, DeSeno's one-year suspension was reversed, and the Board's original discharge decision was reinstated.

DeSeno then filed the instant action for legal malpractice against Becker. DeSeno alleged that Becker's failure to name the superintendent of police as a party defendant in the original complaint for administrative review violated the then-existing applicable standard of care of a reasonably competent attorney. DeSeno further alleged that due to Becker's purported negligence, he was discharged rather than suspended from the police force. Becker filed a motion for summary judgment contending that he breached no duty to DeSeno because the superintendent of police was not a necessary party at the time he filed the original administrative review complaint on his behalf. The trial court granted Becker's motion for summary judgment and denied DeSeno's subsequent motion to reconsider. From these orders DeSeno appeals.

Summary judgment is proper only where there are no issues of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1992). We review the matter de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992).

At the time of the disputed representation, the pertinent section of the Administrative Review Law provided "Defendants. In any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants." Ill.Rev.Stat.1985, ch. 110, par. 3-107.

The complaint had to be filed and summons issued within 35 days from the date that a copy of the decision to be reviewed was received by the party affected thereby. Ill.Rev.Stat.1985, ch. 110, par. 3-103. We begin our analysis with a review of cases interpreting these sections of the Administrative Review Law.

In Winston v. Zoning Board of Appeals, 407 Ill. 588, 95 N.E.2d 864 (1950), the plaintiff filed an action seeking review of a decision of the zoning board. The complaint named the zoning board but not its individual members as defendants. The complaint was dismissed. The Illinois Supreme Court affirmed the dismissal stating that the complaint was "fatally defective in failing to include as defendants all persons other than the plaintiffs who were parties of record to the administrative proceeding." 407 Ill. at 596, 95 N.E.2d 864. However, the subsequent case of Massoud v. Board of Education of Valley View Community District No. 365-U, 97 Ill.App.3d 65, 52 Ill.Dec. 555, 422 N.E.2d 236 (1981), limited the application of Winston to cases where the defects were timely pointed out and the plaintiff made no attempt to amend. In Massoud, a discharged teacher filed a complaint for administrative review against the local board of education but failed to name either the hearing officer or the State Board of Education as a defendant. There, as here, the issue was not raised until appeal. The Massoud court did not dismiss the complaint but, rather, ordered the amendment allowed.

In O'Hare International Bank v. Zoning Board of Appeals, 8 Ill.App.3d 764, 291 N.E.2d 349 (1972), appeal denied, 53 Ill.2d 606 (1973), we held the review of a zoning decision was properly dismissed because certain parties to the zoning administrator's decision were not named. The absent parties, being neighboring landowners, had a keen interest in the outcome of the controversy. However, within one year after the decision, the plaintiff filed a second complaint naming these individuals as defendants. The defendants moved to dismiss arguing that plaintiff had no right to name additional parties at such a late date. On appeal for the second time, this court held that the plaintiffs had the right to name additional parties by amendment even after the expiration of the 35-day period for filing a complaint and issuing summons under the Administrative Review Act. O'Hare International Bank v. Zoning Board of Appeals, 37 Ill.App.3d 1037, 347 N.E.2d 440 (1976).

Meanwhile, in Rizzo v. Board of Fire and Police Commissioners, 11 Ill.App.3d 460, 297 N.E.2d 247 (1973), we held that the person bringing charges against a police officer was not a necessary party to any action challenging a decision of a police board. Rather, we held the Board and its members were the only proper defendants in such an action. 11 Ill.App.3d at 465, 297 N.E.2d at 250. We reiterated this position in Schoenbeck v. Board of Fire & Police Commissioners, 69 Ill.App.3d 366, 25 Ill.Dec. 862, 387 N.E.2d 738 (1979).

In Schoenbeck, a police officer filed a complaint seeking administrative review of a decision of the board of fire and police commissioners discharging him from the police department. The circuit court reversed the board's decision. On appeal, the board argued that plaintiff's complaint was fatally defective because it failed to name the chief of police, the person who brought the charges against plaintiff, as a party defendant. Although we recognized that the requirements of the Administrative Review Act were mandatory (Winston v. Zoning Board of Appeals, 407 Ill. 588, 95 N.E.2d 864 (1950)), we disagreed with the board's analysis of its application under the circumstances presented. We reasoned that the legislature intended to protect those potential parties with independent interests in the outcome of the dispute from being deprived of their right to have input into the decision. We distinguished the independent interest of neighbor landowners in a zoning board suit from a police chief's professional interest in a police board suit. Whereas the interests of neighbor landowners might have differed from those of the zoning board, the interest of the police chief was identical to the interests of the police board. Schoenbeck, 69 Ill.App.3d at 371-72, 25 Ill.Dec. at 866-67, 387 N.E.2d at 742-43. Accordingly, we held that it was not necessary to name the police chief as a defendant in a complaint for administrative review of a police board decision. 69 Ill.App.3d at 372, 25 Ill.Dec. at 867, 387 N.E.2d at 743.

As in Schoenbeck, the plaintiff in Lockett v. Chicago Police Board, 176 Ill.App.3d 792, 126 Ill.Dec. 210, 531 N.E.2d 837 (1988) (hereinafter Lockett I ), was a police officer seeking administrative review of a decision of the board of fire and police. Relying upon that case, the circuit court judge had declared: "the law in the First District underSchoenbeck was clear and explicit on the same identical facts as we have here, that an attorney did not have to name the police chief or the police superintendent." After quoting at length from Schoenbeck, we agreed with the circuit court, stating:

"[W]e are not aware of any case which holds that in an administrative review of a decision to discharge or otherwise discipline a police officer, the person filing the charges must be named as a party defendant under the Administrative Review Law." 176 Ill.App.3d at 794, 126 Ill.Dec. 210, 531 N.E.2d 837.

Accordingly, we held that the superintendent of police was not a necessary party when the police board was named as a defendant.

Our decision in Lockett I was overturned by the Illinois Supreme Court in Lockett v. Chicago Police Board, 133 Ill.2d 349, 140 Ill.Dec. 394, 549 N.E.2d 1266 (1990) (hereinafter Lockett II ). In Lockett II the Illinois Supreme Court...

To continue reading

Request your trial
3 cases
  • Fox v. Seiden
    • United States
    • United States Appellate Court of Illinois
    • 26 Abril 2016
    ...to reject it, it does not necessarily follow that it was malpractice to not raise the argument. See DeSeno v. Becker, 291 Ill.App.3d 421, 427, 225 Ill.Dec. 215, 683 N.E.2d 159 (1997) (we are not to use “prophetic knowledge” to conclude that an attorney's conduct constitutes legal malpractic......
  • People v. Hall
    • United States
    • United States Appellate Court of Illinois
    • 4 Agosto 1997
  • 1312 S. Wabash, LLC v. Jay L. Statland, Statland & Valley, Statland Law Offices, LLC
    • United States
    • United States Appellate Court of Illinois
    • 28 Diciembre 2017
    ...But we cannot say, in light of the case law we have cited, that defendants drafted a legally insufficient notice. See DeSeno v. Becker, 291 Ill. App. 3d 421, 430 (1997) (in legal malpractice case, conduct of lawyer "should be judged according to the controlling cases" at relevant time; beca......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT