Gray v. Hallett

• Decision Date: 16 May 1988
• Docket Number: No. 5-86-0793,5-86-0793
• Citation: 525 N.E.2d 89,170 Ill.App.3d 660,121 Ill.Dec. 283
• Parties: , 121 Ill.Dec. 283 Jacky Wayne GRAY, Plaintiff-Appellee, v. Hillary HALLETT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 89

525 N.E.2d 89

170 Ill.App.3d 660, 121 Ill.Dec. 283

Jacky Wayne GRAY, Plaintiff-Appellee, v. Hillary HALLETT, Defendant-Appellant.

No. 5-86-0793.

Appellate Court of Illinois,

Fifth District.

May 16, 1988.

Rehearing Denied June 10, 1988.

John L. McMullin, John P. Cunningham, St. Louis, for defendant-appellant.

John B. Kistner, Donna Aronofff Smith, St. Louis, plaintiff-appellee.

Justice KARNS delivered the opinion of the court:

Plaintiff Jacky Wayne Gray brought this action against Hillary Hallett in the circuit court of Madison County. The complaint charged Hallett with legal malpractice in the prosecution of his claim against Westlake Quarry Company. Specifically, the complaint alleged that Hallett was negligent in failing to obtain service of process over Westlake before the statute of limitations ran. After a trial by jury, a verdict was rendered in favor of Gray in the amount of $450,000 and the trial court entered judgment thereon.

On January 27, 1973, Jacky Wayne Gray was injured while working for Westlake Quarry Company on the motor vessel Catherine Cruise. Gray went to Hallett's office in May of 1973 and retained Hallett to represent him in his suit against Westlake. Hallett was suspended from the practice of law in Illinois from November 27, 1974 until March 7, 1976, during which time two of Hallett's partners, Hugh Talbert and Keith Fitzgerald, continued to represent Gray. A complaint was filed against Westlake in the circuit court of Madison County on December 8, 1975. The complaint, which alleged violation of the Jones Act (46 U.S.C.App. § 688), was filed 52 days prior to the running of the three-year statute of limitations applicable to Jones Act cases (45 U.S.C.App. § 56).

The evidence establishes that Keith Fitzgerald requested a summons which was issued on December 9, 1975. On January 27, 1976, Talbert and Fitzgerald requested an alias summons be issued. After being reinstated to practice law, Hallett requested another alias summons which was ultimately served on Billy Moore, master of the motor vessel John K., on June 19, 1976. Talbert and Reeves, another associate of Hallett's, requested another alias summons on February 8, 1977. Such summons was issued on April 26, 1977, and served on Billy Graham, master of the motor vessel K.C.

On October 21, 1977, Westlake moved to quash the service of June 19, 1976, as Westlake did not own the John K. nor did it employ Billy Moore. The motion was granted and service quashed on December 2, 1977. Between December 6, 1977, and December 18, 1978, Hallett requested four more alias summonses, none of which were served. On December 19, 1978, the Madison County sheriff's office filed a memorandum indicating that Westlake boats did not come through the area locks. Hallett requested another summons on January 12, 1979, and filed a motion to appoint a special process server. This process server was unable to obtain service. On August 30, 1979, Hallett again requested a summons and special process server and service was finally obtained on September 26, 1979.

Westlake moved to dismiss the suit for failure to use due diligence in obtaining service of process. On March 7, 1980, Judge Barr entered an order dismissing the case "without prejudice."

Gray filed the present action on September 24, 1981, alleging that as a result of Hallett's negligence in obtaining service on Westlake prior to the running of the statute of limitations, he was permanently foreclosed from recovering damages from Westlake. Hallett moved for summary judgment, arguing that a viable cause of action still remained after March 7, 1980, but this motion was denied. He also moved for a directed verdict at the close of plaintiff's case and at the conclusion of all the evidence, arguing that plaintiff failed to introduce any expert testimony on the issue of negligence. These motions were also denied. The jury returned a verdict against Hallett in the amount of $450,000.

Hallett argues that the trial court erred in denying his motion for a directed verdict because Gray failed to introduce expert testimony on the question of negligence. At issue is whether Hallett's conduct falls within the "common knowledge" exception to the rule that expert testimony is generally required to establish a claim of legal malpractice.

An attorney is liable to his client for damages when he fails to exercise the reasonable degree of care and skill expected from members of the legal profession. The law draws a distinction, however, between negligence and errors in judgment. (Brainerd v. Kates (1st Dist.1979), 68 Ill.App.3d 781, 25 Ill.Dec. 315, 386 N.E.2d 586.) As a general rule, expert testimony is required to establish the standard of care; but where the attorney's negligence is so grossly apparent that a layman would have no difficulty in recognizing it, expert testimony is not required. House v. Maddox (1st Dist.1977), 46 Ill.App.3d 68, 4 Ill.Dec. 644, 360 N.E.2d 580.

In the present case, Hallett maintains that service of process was an act requiring the use of legal judgment and that expert testimony was therefore required to establish the requisite standard of care. Gray argues that failure to obtain service of process is so obviously negligent as to fall within the "common knowledge" exception of House v. Maddox.

In support of his position, Hallett cites Brainerd v. Kates and Dorf v. Relles (7th Cir.1966), 355 F.2d 488. In Brainerd, a malpractice action was brought against an attorney for failure to timely file a notice of appeal in federal court. The attorney had filed notice thirty days after the clerk of the court made the docket entry noting the trial court's dismissal of the action, but thirty-two days after the date of the actual order. The court held that expert testimony was necessary to establish whether the defendant attorney had exercised the required degree of skill, because at the time in question, it was unclear as to whether the notice of appeal had to be filed within thirty days of the order or the docket entry. Brainerd, 68 Ill.App.3d at 786, 25 Ill.Dec. at 319, 386 N.E.2d at 590.

In Dorf, the plaintiff sued his former attorney for failing to discuss a settlement offer made by opposing counsel during the course of the trial. The court held that expert testimony was required to determine what constitutes ordinary legal knowledge and skill common to members of the profession and whether the defendant attorney's conduct fell below that standard. Dorf, 355 F.2d at 492.

We do not believe the cases cited by Hallett are applicable to the present case. In Brainerd, the issue of whether the time for filing the notice of appeal ran from the date of the order or the date of the docket entry was not settled. Dorf was a pre-House case and the "common knowledge" exception did not then exist. The case at hand is more similar to House v. Maddox wherein this court held that where the defendant's failure to meet the duty of care is so clear and obvious that even a layperson could appraise it, expert testimony will not be required. Obtaining service of process over a defendant is absolutely necessary to maintain a lawsuit and does not, as Hallett argues, require the use of legal judgment. Such judgment is required in deciding how best to effect service and questions of proper jurisdiction and venue, but failure to obtain service at all, or delaying for so long that a dismissal for lack of due diligence becomes a permanent bar by virtue of Illinois Supreme Court Rule 103(b) (107 Ill.2d R. 103(b)) is clearly and unquestionably negligent. No expert testimony is needed to establish this. Any competent attorney should be able to obtain service over a defendant unless the defendant is out of the jurisdiction and either the long-arm statute is inapplicable or the "minimum contacts" standard of International Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 and its progeny cannot be met. Westlake was a Missouri corporation whose office and principal place of business was in St. Louis. Hallett could easily have obtained service on Westlake pursuant to the Illinois Long-Arm Statute (Ill.Rev.Stat.1987, ch. 110, par. 2-208) by personal service on Westlake at its principal place of business. Nevertheless, Hallett repeatedly attempted to serve the master of one of Westlake's boats as it came through the Alton Lock and Dam despite a continued lack of success and having been told by the Madison County sheriff's office that Westlake boats did not come through the area locks.

Hallett's second argument is that the filing of Gray's complaint against Westlake tolled the statute of limitations. Hallett argues that because the statute was tolled, there remained 52 days after Judge Barr's March 7, 1980, dismissal in which the case could have been refiled. Because there was still a viable cause of action at the time of the alleged negligence, Hallett maintains there was no proximate cause between his negligence and Gray's injury. See Schulte v. Burch (4th Dist.1986), 151 Ill.App.3d 332, 104 Ill.Dec. 359, 502 N.E.2d 856.

We need not address the issue of tolling, however, as we conclude that Hallett has waived this argument for purposes of appeal. Under the facts of this case, tolling of the statute of limitations constitutes an affirmative defense. As such, it should have been set forth in the pleadings pursuant to section 43(4) of the Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, sec. 43(4)). Because Hallett did not affirmatively plead this defense in his answer nor did he argue it at trial, it is waived for purposes of appeal.

Hallett also argues that the trial...