Governmental Interinsurance Exch. v. Judge

• Decision Date: 18 May 2006
• Docket Number: No. 100668.,100668.
• Citation: Governmental Interinsurance Exch. v. Judge, 850 N.E.2d 183, 221 Ill.2d 195, 302 Ill.Dec. 746 (Ill. 2006)
• Parties: GOVERNMENTAL INTERINSURANCE EXCHANGE et al., Appellants, v. Jay S. JUDGE et al., Appellees.
• Court: Illinois Supreme Court

850 N.E.2d 183

221 Ill.2d 195

GOVERNMENTAL INTERINSURANCE EXCHANGE et al., Appellants, v. Jay S. JUDGE et al., Appellees.

No. 100668.

Supreme Court of Illinois.

May 18, 2006.

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Steven D. Pearson, Peter Petrakis, Omar S. Odland and Melissa A. King, of Meckler Bulger & Tilson, L.L.P., Chicago, for appellants.

Robert Marc Chemers, David S. Osborne, of Pretzel & Stouffer, Chrtd., Chicago, for appellees Mary E. Dickson and Bond, Mork & Dickson, P.C.

Peter A. Monahan, Patricia M. Noonan, of Alholm, Monahan, Klauke, Hay & Oldenburg, Chicago, for appellees Jay S. Judge et al.

Richard A. Devine, State's Attorney, Chicago (Patrick T. Driscoll, Jr., Louis R. Hegeman and R. Seth Shippee, Assistant State's Attorneys, of counsel), for amicus curiae County of Cook.

Darrell Cates, Springfield, Elizabeth A. Knight, of Knight, Hoppe, Kurnik & Knight, L.L.C., Des Plaines, for amicus curiae Illinois Association of County Engineers.

Susan M. Garvey, Westchester, Elizabeth A. Knight, of Knight, Hoppe, Kurnik & Knight, L.L.C., Des Plaines, for amicus curiae Intergovernmental Risk Management Agency.

Williams Montgomery & John, Ltd., Chicago (Alex R. Thiersch and Alyssa M. Campbell, of counsel), for amicus curiae Property Casualty Insurers Association of America.

Kristen M. Dunne, of Goldberg, Weisman & Cairo, Ltd., Chicago, for amicus curiae Illinois Trial Lawyers Association.

Justice FREEMAN delivered the judgment of the court, with opinion:

Plaintiffs, Governmental Interinsurance Exchange (GIE) and Kendall County (County), brought a legal malpractice action in the circuit court of McLean County against attorney Jay S. Judge and the law firms of Judge, James & Dutton, Ltd., and Judge & James, Ltd. (Judge defendants); and attorney Mary E. Dickson and the law firm of Bond, Mork & Dickson, P.C. (Dickson defendants). Plaintiffs claimed that defendants were negligent by failing to timely file an appeal from an adverse judgment in prior litigation in which defendants represented GIE's insured, the County. The circuit court entered partial summary judgment in favor of plaintiffs on the issues of duty and breach of duty. However, the circuit court subsequently entered summary judgment in favor of defendants on the issue of proximate cause.

Plaintiffs appealed the summary judgment in favor of defendants on the issue of proximate cause. A divided panel of the appellate court affirmed the judgment. 356 Ill.App.3d 264, 292 Ill.Dec. 141, 825 N.E.2d 729. We allowed plaintiffs' petition for leave to appeal (177 Ill.2d R. 315(a)), and now affirm the judgment of the appellate court.

I. BACKGROUND

The proceedings below were conducted in the context of the following legal principles. In an action for legal malpractice the plaintiff must plead and prove that: the defendant attorney owed the plaintiff a duty of due care arising from the attorney-client relationship; that the defendant breached that duty; and that as a proximate result, the plaintiff suffered injury (Sexton v. Smith, 112 Ill.2d 187, 193, 97 Ill.Dec. 411, 492 N.E.2d 1284 (1986)) in the form of actual damages (Eastman v. Messner, 188 Ill.2d 404, 411, 242 Ill.Dec. 623, 721 N.E.2d 1154 (1999)). "Even if negligence on the part of the attorney is established, no action will lie against the attorney unless that negligence proximately caused damage to the client." Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill.2d 294, 306-07, 297 Ill.Dec. 319, 837 N.E.2d 99 (2005).

In cases involving litigation, no legal malpractice exists unless the attorney's negligence resulted in the loss of an underlying cause of action. Accordingly, the burden of pleading and proving actual damages requires establishing that "but for" the attorney's negligence, the client would have been successful in the underlying suit. See Sheppard v. Krol, 218 Ill. App.3d 254, 256-57, 161 Ill.Dec. 85, 578 N.E.2d 212 (1991); Claire Associates v. Pontikes, 151 Ill.App.3d 116, 122, 104 Ill. Dec. 526, 502 N.E.2d 1186 (1986); Bartholomew v. Crockett, 131 Ill.App.3d 456, 465, 86 Ill.Dec. 656, 475 N.E.2d 1035 (1985). In a legal malpractice action alleging that an attorney failed to perfect an appeal, the client must prove that he or she would have been successful on appeal if the appeal had properly been perfected. See Environmental Control Systems, Inc. v. Long, 301 Ill.App.3d 612, 621, 234 Ill.Dec. 901, 703 N.E.2d 1001 (1998); Gillion v. Tieman, 86 Ill.App.3d 147, 150, 41 Ill.Dec. 648, 407 N.E.2d 1146 (1980) ("To succeed in her malpractice claim, [plaintiff] would have been required to prove damages caused by the defendant's failure to file a timely notice of appeal. To prove damages, she would have to show that an appeal would have been successful"); accord Jones v. Psimos, 882 F.2d 1277 (7th Cir.1989) (same; applying Indiana law). Thus, a legal malpractice plaintiff must litigate a "case within a case." See Eastman, 188 Ill.2d at 411, 242 Ill.Dec. 623, 721 N.E.2d 1154 (collecting authorities). These principles provide the lens through which we view the following pertinent facts.

A. Underlying Case: The Automobile Accident

The trial of the underlying case adduced the following pertinent facts. Galena Road has two lanes and runs generally east-west. In 1978, the County assumed authority over Galena Road, commissioned a preconstruction profile of the road, and developed an improvement plan. The County resurfaced the road and striped the center of the road with a skip-dash, or broken yellow line, indicating that passing vehicles is permissible.

Expert testimony established that the 1978 placement of the broken yellow line conformed with guidelines on adequate sight distances mandated by the Illinois Manual on Uniform Traffic Control Devices (Illinois Manual) (formerly codified at 92 Ill. Adm.Code § 546.100 et seq. (1985), now published as Illinois Department of Transportation, Illinois Manual on Uniform Traffic Control Devices (2003)). Pursuant to these guidelines, passing vehicles is permissible only where sight distances are adequate. If an engineering study concludes that sight distances are inadequate, a no-passing zone must be installed. In 1984, the Illinois Manual lowered the minimal sight distance. This reduction rendered inadequate the sight distance on that portion of Galena Road where the accident subsequently occurred. In 1993, the County resurfaced Galena Road and restriped the center of the road with the same broken yellow line that it had placed in 1978.

On a November evening in 1994, Sandra Wittenmyer was driving westbound on Galena Road. Aaron Gesell was driving eastbound. As Gesell was passing another eastbound vehicle, he collided head-on with Wittenmyer in the westbound lane. Gesell's and Wittenmyer's automobiles collided at the apex of a rise in Galena Road. Gesell was traveling at a speed significantly higher than the posted 55-miles-per-hour speed limit. Gesell stated that he passed the eastbound vehicle ahead of him because he knew that a broken yellow line indicated that passing vehicles was permissible. Also, according to Gesell, he was not aware that the rise in Galena Road would have obstructed his view of oncoming traffic. As a result of the collision, Wittenmyer suffered severe and permanent injuries.

In January 1995, Sandra and her husband filed a lawsuit against Gesell. In October 1995, the Wittenmyers added the County as a defendant and Gesell brought a third-party contribution action against the County. Between November 1995 and June 1997, GIE, the County's insurer, retained the Dickson defendants and the Judge defendants to represent the County.

Through its attorneys, the County moved for summary judgment, contending that section 3-104 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-104 (West 1994)) immunized the County from liability. The trial court denied the County's motion for summary judgment, and the case proceeded to a jury trial. On October 30, 1998, the jury returned a verdict in favor of the Wittenmyers. The jury awarded $4.5 million in damages to Sandra against Gesell and the County, apportioning 20% of the fault to Gesell and 80% of the fault to the County. The jury also awarded $500,000 in damages to Sandra's husband. On Gesell's counterclaim against the County, the jury found the County 50% at fault.

On November 25, 1998, the County filed a posttrial motion. The County also moved to file a supplemental posttrial motion, alleging that its attorneys had only very recently received the report of proceedings. On December 3, 1998, the trial court denied both of the County's motions.

On December 31, 1998, the County filed a notice of appeal from the judgment entered on the jury verdict and from the trial court's denial of its posttrial motions. On the same day, the County also presented to the trial court an emergency motion for leave to file a supplemental posttrial motion. The emergency motion was premised on the impending appeal deadline of January 4, 1999, i.e., 30 days after the trial court's December 3, 1998, denial of the County's posttrial motions. The County alleged that, based on this deadline, it was necessary for the County to seek leave to file a supplemental posttrial motion, which contained five additional grounds for reversal based upon trial errors. The trial court granted the motion in an order stating: "Final orders not having been entered in this cause, the time for filing notice of appeal in this matter is hereby extended until a final order is entered."

On January 12, 1999, the County filed an amended supplemental posttrial motion. On February 16, 1999, the trial court denied the motion, ruling that the court lacked jurisdiction to hear the motion and, alternatively, that the motion was denied "as a matter of substance." On March 15, 1999, the County filed a motion with the appellate court, Second District,...