Farm Credit Bank of St. Louis v. Gamble

• Decision Date: 04 May 1990
• Docket Number: No. 3-89-0398,3-89-0398
• Citation: Farm Credit Bank of St. Louis v. Gamble, 554 N.E.2d 779, 197 Ill.App.3d 101, 143 Ill.Dec. 844 (Ill. App. 1990)
• Parties: , 143 Ill.Dec. 844 FARM CREDIT BANK OF ST. LOUIS, Plaintiff, v. Bruce GAMBLE et al., Defendants (Bruce Gamble, Third Party Plaintiff-Appellant; v. Reynelds M. Everett, Jr. et al., Third Party Defendant-Appellee).
• Court: Appellate Court of Illinois

Page 779

554 N.E.2d 779

197 Ill.App.3d 101, 143 Ill.Dec. 844

FARM CREDIT BANK OF ST. LOUIS, Plaintiff, v.Bruce GAMBLE et al., Defendants (Bruce Gamble, Third Party Plaintiff-Appellant; v. Reynelds M. Everett, Jr. et al., Third Party Defendant-Appellee).

No. 3-89-0398.

Appellate Court of Illinois Third District.

May 4, 1990.

Charles E. McFarland(argued), Newton Falls, Ohio, for Bruce gamble.

David E. Jones, Thomas & Hinshaw, Culbertson, Kathryn A. Spalding(argued), Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for Reynolds M. Everett, Jr.

Justice STOUDERdelivered the opinion of the court:

This is an appeal from a Henry County circuit court judgment dismissing the defendant third-partyplaintiffBruce Gamble's (Gamble) third-party action against third-party defendantsReynolds Everett(Everett) and Everett & Young, P.C.(Firm).

The record shows that on July 16, 1981, Gamble and other family members obtained a loan for $276,300.00 from the Farm Credit Bank of St. Louis (Bank) to purchase a farm in Stark County.As collateral, Gamble pledged a property in Stark County and a Henry County farm owned by Mary Gamble, his mother.Gamble allegedly failed to make the mortgage payments and the bank filed foreclosure actions in Stark and Henry County circuit court against Gamble and others.The two cases were consolidated.

Gamble answered the complaint with affirmative defenses and filed this third-party complaint against Everett and his firm.Gamble contends the mortgage and note were void as against public policy because his mother's farm was pledged as collateral through Gamble's fraudulent use of a power of attorney.Gamble also claimed the mortgage and note were void because he was fraudulently induced by the bank, Everett, and his firm to sign the mortgage.Gamble's third-party complaint alleged, inter alia, fraud and legal malpractice on the part of Everett and his firm.

Everett and his firm filed a motion to dismiss the third-party complaint.The trial court granted the motion and dismissed the third-party complaint with prejudice and without leave to replead.The court noted that Gamble has not and cannot state a cause of action against Everett or the firm.On June 9, 1989, the trial court made a finding pursuant to Supreme Court Rule 304(a)(107 Ill.2d R. 304(a)), making the judgment of dismissal appealable.

Initially, Gamble asserts that his third-party complaint sufficiently sets forth the elements to state two causes of action; fraud and legal malpractice.This court is aware that all well-pleaded facts must be taken as true on a motion to dismiss.(Kenworthy v. Young(1979), 70 Ill.App.3d 144, 26 Ill.Dec. 593, 388 N.E.2d 217).We are also aware that a third-party complaint will be dismissed where the third-partyplaintiff cannot demonstrate that he is entitled to relief.Burke v. Sky Climber, Inc.(1974), 57 Ill.2d 542, 316 N.E.2d 516.

In the instant case, we need not address the issue of whether Gamble was fraudulently induced into entering into this mortgage because, for similar reasons, we find Gamble's action for both it and legal malpractice to be premature.

Gamble asserts that he sufficiently alleged a cause of action in legal malpractice against Everett and his firm.In order to state a cause of action for legal malpractice the plaintiff must plead the existence of an attorney/client relationship; a duty arising from that relationship; a breach of that duty; causation and actual damages.(Bartholomew v. Crockett(1985), 131 Ill.App.3d 456, 86 Ill.Dec. 656, 475 N.E.2d 1035.)Damages are never presumed, and the plaintiff must, therefore, demonstrate that he has sustained a monetary loss as the result of some negligent act on the lawyer's part.Chicago Red Top Cab Association v. Gaines(1977), 49 Ill.App.3d 332, 7 Ill.Dec. 167, 364 N.E.2d 328.

In Bartholomew, the plaintiff was a State employee injured in a motor-vehicle collision while working in the course of her employment.She sued the driver of another vehicle involved in the collision seeking to recover for her injuries.That driver, however, was an employee of the Board of Trustees of the University of Illinois who was also working in the course of his employment.The plaintiff joined a former attorney as a partydefendant, alleging that he had committed malpractice for failing to timely file a claim with the Court of Claims against the defendant's employer.The circuit court dismissed the complaint as to both defendants.That court ruled that no cause of action was stated against the other driver because both the plaintiff and the driver were employees of the same employer operating in the course of their employment and were barred from suing each other for tort thus occurring based on the fellow-servant rule of section 5(a) of the Workers' Compensation Act. Ill.Rev.Stat.1987, ch. 48, par. 138.5(a).

On appeal, the Bartholomew court reversed the dismissal of the negligence counts, holding that the State and the Board of Trustees were sufficiently different entities to negate operation of section 5(a) of the Workers' Compensation Act.T...