Mitchell v. Schain, Fursel & Burney, Ltd.

• Citation: 332 Ill. App.3d 618,266 Ill.Dec. 122,773 N.E.2d 1192
• Decision Date: 11 July 2002
• Docket Number: No. 1-01-2108.
• Parties: William R. MITCHELL, Plaintiff-Appellant, v. SCHAIN, FURSEL & BURNEY, LTD., and James Graney, Defendants-Appellees (Schain, Fursel & Burney, Ltd., Donnie Rudd, James Graney, and Steven Sam Koukios, Defendants).
• Court: United States Appellate Court of Illinois

773 N.E.2d 1192

332 Ill. App.3d 618

266 Ill.Dec. 122

William R. MITCHELL, Plaintiff-Appellant, v. SCHAIN, FURSEL & BURNEY, LTD., and James Graney, Defendants-Appellees (Schain, Fursel & Burney, Ltd., Donnie Rudd, James Graney, and Steven Sam Koukios, Defendants).

Nos. 1-01-2108.

Appellate Court of Illinois, First District, Fourth Division.

July 11, 2002.

John L. Malevitis, J.L. Malevitis & Associates, Ltd., Chicago, for Appellant Mitchell.

Swanson, Martin & Bell (Sheryl A. Pethers, of counsel), for Appellee.

Justice THEIS delivered the opinion of the court:

Plaintiff, William R. Mitchell, appeals from an order of the circuit court of Cook County granting summary judgment in his legal malpractice claim in favor of defendants, Schain, Fursel & Burney, Ltd., and James Graney. Plaintiff contends that the circuit court erred in concluding that, as a matter of law, defendants' conduct was not the proximate cause of the loss of his underlying claim, and erred in finding that the negligence of successor counsel acted as a superseding cause of the loss sufficient to break the chain of causation. For the following reasons, we affirm the judgment of the circuit court. The following facts are adduced from the record. In 1989, plaintiff retained defendants to represent him in a property dispute with a developer and adjacent neighbor of plaintiffs, A. Fanizza. On September 10, 1990, the court granted plaintiffs summary judgment motion as to the liability of Fanizza and set the matter for hearing on September 24, 1990, to prove up damages. On August 14, 1991, the case was dismissed for want of prosecution (DWP). Plaintiff was not aware of the DWP. He alleged that he was told by defendants that his case was pending and there was no settlement offer or disposition in the near future. Thereafter, in January 1992, he discharged defendants and retained attorney Steven Koukios to represent him in his lawsuit against Fanizza.

In late December of 1995, Koukios summoned plaintiff to his office and informed plaintiff that he had not filed any pleadings on his behalf; he had another client by the name of Mitchell, and had gotten the two files confused. Meanwhile, the DWP had never been vacated, and the right to reinstate plaintiffs action against Fanizza under the savings provision provided by section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 1994)) had expired.

On December 16, 1997, plaintiff filed his claim for legal malpractice against defendants and his successor counsel, Koukios. In turn, defendants filed a third-party complaint for contribution against Koukios. Thereafter, on March 30, 2000, defendants moved for summary judgment, arguing that because plaintiffs cause of action remained viable at the time defendants were discharged, they were not the proximate cause of plaintiffs damages as a matter of law. The circuit court granted defendants' motion for summary judgment. Plaintiff eventually reached a settlement with Koukios in May 2001, and on May 8, 2001, the court dismissed all remaining claims.

Plaintiff contends that the circuit court erred in granting summary judgment because it could not be determined as a matter of law that Koukios was a superseding cause of his damages. He argues that but for defendants' alleged breach of their duties, plaintiff would not have been foreclosed from pursuing his cause of action and obtaining a judgment. Summary judgment should be granted where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000); Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill.2d 17, 30-31, 241 Ill.Dec. 627, 719 N.E.2d 756, 764 (1999). Summary judgment can aid in the expeditious disposition of a lawsuit, but it is a drastic measure and should be allowed only "when the right of the moving party is clear and free from doubt." Purtill v. Hess, 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867, 871 (1986). If the plaintiff fails to establish any element of his claim, summary judgment is appropriate. Pyne v. Witmer, 129 Ill.2d 351, 358, 135 Ill.Dec. 557, 543 N.E.2d 1304, 1307 (1989). Our standard of review is de novo (Jones v. Chicago HMO Ltd. of Illinois, 191 Ill.2d 278, 291, 246 Ill.Dec. 654, 730 N.E.2d 1119, 1127 (2000)

), and we may affirm on any basis found in the record (Alliance Syndicate, Inc. v. Parsec, Inc., 318 Ill.App.3d 590, 599, 251 Ill.Dec. 861, 741 N.E.2d 1039, 1045 (2000)).

To prevail in an action for legal malpractice, a plaintiff must plead and prove the following elements: (1) an attorney-client relationship that establishes a duty on the part of the attorney; (2) a negligent act or omission constituting a breach of that duty; (3) proximate cause establishing that "but for" the attorney's malpractice, the plaintiff would have prevailed in the underlying action; and (4) actual damages. Owens v. McDermott, Will & Emery, 316 Ill.App.3d 340, 351, 249 Ill.Dec. 303, 736 N.E.2d 145, 155 (2000). We recognize that, in assessing the damage inflicted by legal malpractice, prime consideration must be given to the situation in which the client was placed at the time of the termination of the legal services. Schulte v. Burch, 151 Ill.App.3d 332, 334, 104 Ill.Dec. 359, 502 N.E.2d 856, 858 (1986).

For example, in Land v. Greenwood, 133 Ill.App.3d 537, 88 Ill.Dec. 595, 478 N.E.2d 1203 (1985), the plaintiff had two attorneys in the underlying suit. The first failed to serve several defendants with process and then withdrew from the case. A second attorney assumed handling of the case. Four to five months after the second attorney was retained, the defendants were finally served with process. Those defendants filed motions to dismiss for lack of due diligence in the prosecution of the case. The trial court dismissed the case with prejudice. The plaintiff then sued his original attorney for legal malpractice, claiming that the dismissal was caused by the inactions of his first attorney. Land, 133 Ill.App.3d at 538-39, 88 Ill.Dec. 595, 478 N.E.2d at 1204-05.

In holding that under this particular set of facts plaintiff could not state a case of legal malpractice against the discharged attorney, the court noted that successor counsel had a duty to preserve his client's cause of action. "It was viable when he received it; it was not when he got through with it." 133 Ill.App.3d at 540, 88 Ill.Dec. 595, 478 N.E.2d at 1205. The court explained that plaintiffs successor attorney had an absolute right to voluntarily dismiss the suit before the trial court's order of dismissal. "The cause of action was viable at the time of [the first attorney's] discharge. It therefore follows that plaintiff can prove no set of facts which connect defendant's conduct with any damage sustained by plaintiff."¹ Land, 133 Ill.App.3d at 541, 88 Ill.Dec. 595, 478 N.E.2d at 1206. See Kozmol v. Law Firm of Allen L. Rothenberg, 241 A.D.2d 484, 485-86, 660 N.Y.S.2d 63, 64 (1997) (defendants could not be held liable for loss of client's cause of action despite failure to effect valid service on client's adversary, resulting in dismissal, where successor counsel, retained prior to dismissal, could have commenced a new action); see also McGee v. Danz, 261 Ill. App.3d 232, 237, 198 Ill.Dec. 772, 633 N.E.2d 234, 237 (1994) (where plaintiff discharged defendant prior to the running of the applicable statute of limitations, as a matter of law, defendant was not liable for legal malpractice for failing to file a claim against third parties prior to expiration of statute of limitations); Harvey v. Mackay, 109 Ill.App.3d 582, 587, 65 Ill.Dec. 167, 440 N.E.2d 1022, 1026 (1982) (holding that an attorney who fails to file suit within the applicable statute of limitations may not be sued for malpractice when the attorney withdrew more than a year before the limitations period ran); Frazier v. Effman, 501 So.2d 114, 116 (Fla.App.1987) (where second attorney has sufficient time to rectify problem before statute of limitation ran, first attorney not liable even if second attorney was not specifically notified of problem).

We recognize that there may be circumstances where the first attorney could be held to be a proximate cause of plaintiffs damages where his acts or omissions leave doubt about the subsequent viability of plaintiffs claim after his representation ends, such as when a statute of limitations expires one day after an attorney ceases representation and a new attorney could not reasonably recognize that problem in the time allowed. In those cases, it would be for the jury to determine whether the case was in fact reasonably "...