Petrowsky v. Family Service of Decatur, Inc.

• Decision Date: 30 December 1987
• Docket Number: No. 4-87-0262,4-87-0262
• Citation: 116 Ill.Dec. 42,165 Ill.App.3d 32,518 N.E.2d 664
• Parties: , 116 Ill.Dec. 42 David L. PETROWSKY and Martha J. Petrowsky, Plaintiffs-Appellants, v. FAMILY SERVICE OF DECATUR, INC., an Illinois corporation, Beatrice Lovette, Becky White and Mary Lovell-Troy, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 664

518 N.E.2d 664

165 Ill.App.3d 32, 116 Ill.Dec. 42

David L. PETROWSKY and Martha J. Petrowsky, Plaintiffs-Appellants, v. FAMILY SERVICE OF DECATUR, INC., an Illinois corporation Beatrice Lovette, Becky White and Mary Lovell-Troy, Defendants-Appellees.

No. 4-87-0262.

Appellate Court of Illinois Fourth District.

Dec. 30, 1987.

Brilley and Vigneri, Donald E. Brilley, Decatur, for plaintiffs-appellants.

William O. Martin, Jr., Martin D. Hoke, Samuels, Miller, Schroeder, Jackson & Sly, Decatur, for defendants-appellees.

Justice KNECHT delivered the opinion of the court:

In the circuit court of Macon County, plaintiffs David and Martha Petrowsky filed a complaint against defendant Family Service of Decatur, Inc., and three of its employees, alleging negligence and breach of an adoption agreement. The circuit court dismissed the case on the pleadings and plaintiffs appeal as to original count I and their second-amended complaint.

Plaintiffs entered into an adoption agreement prepared by defendant, a private child welfare and adoption agency, whereby plaintiffs obtained custody of Tracy Lee Barry, now known as Robert Patrick Petrowsky. The adoption was interrupted because the child's natural mother changed her original story regarding the child's biological father and her former husband recanted his prior denial of paternity. It appears plaintiffs were ultimately successful in the adoption, but their lawsuit complains as to the handling of the adoption by defendants. The original complaint contained three counts. Count I alleged negligence causing property damage, count II alleged negligence causing personal injury and count III alleged breach of contract by the corporate defendant. The original pleading was not verified.

On defendants' motion, the court dismissed original counts I and II for failure to state a cause of action. Plaintiffs were granted leave to amend count III, which was dismissed because it alleged negligence while purporting to be a count for breach of contract.

Defendants' amended complaint did not contain a negligence count, nor did it refer to or incorporate any part of the original complaint. Count I charged the corporate defendant with breach of an implied contractual obligation to exercise reasonable care and skill in performing its obligations under the adoption agreement. Count II sought damages for mental suffering which ensued from the alleged breach of contract. Count III charged all defendants with reckless infliction of severe emotional distress. The court again granted defendant's motion to dismiss for failure to state a cause of action.

Upon the court's leave, plaintiffs filed a second-amended complaint. Counts I through II were virtually identical to those in the first-amended complaint, and again, the pleadings were not verified. On defendants' motion, the circuit court dismissed plaintiffs' second-amended complaint with prejudice.

The circuit court dismissed count I of the original complaint, which alleged defendants negligently handled the parties' adoption agreement, and based its ruling entirely on Martino v. Family Service Agency (1982), 112 Ill.App.3d 593, 67 Ill.Dec. 714, 445 N.E.2d 6. In Martino, plaintiff sued the defendant social worker in negligence for professional misconduct. Defendant seduced a patient and disclosed confidences while acting as a marriage counselor and therapist. The Martino court refused to recognize the tort of social worker malpractice. In a later case, Horak v. Biris (1985), 130 Ill.App.3d 140, 85 Ill.Dec. 599, 474 N.E.2d 13, the court found the defendant social worker guilty of social worker malpractice on facts similar to those in Martino. However, unlike Mrs. Martino, the plaintiff in Horak alleged the defendant negligently mishandled various psychological principles. Horak distinguished the Martino decision to that extent.

The plaintiffs here do not allege social worker malpractice. Rather, this case involves an adoption agency's alleged shoddy investigation and paper work. The areas of social work and adoption are governed by separate statutes and standards in Illinois. Even though the circuit court misapplied Martino to an adoption agency scenario, we agree with the ultimate conclusion below and find no precedent or policy compelling us to recognize the tort of adoption agency malpractice.

It is unnecessary to belabor the merits because any error in dismissal of the original complaint has been waived. The well-established principle of waiver provides that a party filing an amended complaint which does not refer to or adopt the earlier pleading waives any objection to the trial court's dismissal of the original complaint. (Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill.2d 150, 70 Ill.Dec. 251, 449 N.E.2d 125.) This principle applies to unverified pleadings (Stemm v. Rupel (1975), 30 Ill.App.3d 864, 332 N.E.2d 686), and the waiver principle applies whether or not the dismissal was "with prejudice." ( Foxcroft, 96 Ill.2d 150, 70 Ill.Dec. 251, 449 N.E.2d 125; Kievman v. Edward Hospital (1984), 122 Ill.App.3d 187, 77 Ill.Dec. 597, 460 N.E.2d 901; Kincaid v. Parks Corp. (1985), 132 Ill.App.3d 417, 87 Ill.Dec. 467, 447 N.E.2d 68.) A dismissal is the equivalent of an adjudication on the merits and need not contain the words "with prejudice." Kincaid, 132 Ill.App.3d 417, 87 Ill.Dec. 467, 477 N.E.2d 68.

In applying these pleading rules, we note that although original count I alleged defendants' negligence, neither plaintiffs' first nor second-amended complaints contained or referred to a negligence count. Furthermore, the pleadings were not verified and the circuit court's dismissal was effectively with prejudice. Accordingly, the allegations asserted in original count I, but not incorporated in the final amended complaint, are considered waived. The circuit court dismissed original count I, and plaintiffs have waived their objection.

Plaintiffs further argue the circuit court erroneously dismissed count I of their second-amended complaint, which alleged the corporate defendant breached an implied duty of reasonable care. The essence of count I is as follows:

"[7.] The parties at that time intended that an implied term of that Adoption Agreement would be that Family Service of Decatur, Inc., would exercise reasonable care and skill, and would exercise that degree of care and skill and adhere to the customs, usages, practices and procedures ordinarily followed by adoption agencies, in performing its obligations under that Adoption Agreement.

[8.] Family Service of Decatur, Inc., by and through its agents, servants and employees, thereafter breached its contractual obligations in one or more of the following respects:

(a) It conducted little or no, or an inadequate, investigation into the paternity of the child.

(b) It prepared and kept little or no, or inadequate, records and documentation of whatever investigation was conducted into the paternity of the child.

(c) It failed to obtain an affidavit, or a written or sworn statement, or even a statement witnessed by a third party, from Kimberly D. Barry's former husband, Michael E. Barry, when he originally denied paternity of the child.

(d) It failed to obtain an affidavit, or a written or sworn statement, or even a statement witnessed by a third party, from Kimberly D. Barry when she identified the man originally claimed by her to be the biological father of the child.

(e) It conducted little or no, or an inadequate, investigation concerning whether Michael E. Barry was the biological father of the child.

(f) It conducted little or no, or an inadequate investigation concerning the existence or whereabouts or paternity of the man originally claimed by Kimberly D. Barry to be the biological father of the child."

Defendants point out the allegations set forth in count I of the second-amended complaint paragraphs 8(a) through (f) are exactly the same allegations of negligence found in count I of the original complaint but couched in terms of a contract action. Citing Land v. Greenwood (1985), 133 Ill.App.3d 537, 88 Ill.Dec. 595, 478 N.E.2d 1203, defendants maintain plaintiffs cannot assert a cause of action for negligence under a breach of contract heading. Land was an action for legal malpractice. This court held such an action "is one sounding in tort which arises out of a contract, express or implied, for legal services". (133 Ill.App.3d at 541, 88 Ill.Dec. at 598, 478 N.E.2d at 1206.) For failure to allege more, the contract count was dismissed as a simple restatement of the negligence count. We distinguish Land from the instant case on the grounds that adoption agency malpractice, unlike legal malpractice is not an established tort.

In Martino, as previously noted, this court declined to recognize the tort of social worker malpractice; however, it held social workers may be sued for breach of contract on the same facts. Martino held:

"[Count I] alleged that a contract was entered into between plaintiff and Family Service for the furnishing of counseling and that competent counseling was not provided to the damage of plaintiff. * * * The factual allegations set forth a breach of that promised service. We are also unaware of case precedent for such a suit in contract. However, no specific precedent is necessary to support the viability of a complaint which alleges a contract from which certain promises are implied, a breach of those implied promises and damages.

* * *

* * *

As count I stated a contract, a breach and some proper elements of damage, the trial court erred in dismissing it."

Martino, 112 Ill.App.3d at 598, 67 Ill.Dec. at 719, 445 N.E.2d at 9-10.

Martino reinstated for remand the contract count alleging damages due to breach of the implied conditions of the contract. We believe Martino is applicable to the breach of contract allegations before this court.

We must first question whether the adoption agreement...