Robins v. Lasky

• Decision Date: 30 March 1984
• Docket Number: No. 82-3065,82-3065
• Citation: 123 Ill.App.3d 194,78 Ill.Dec. 655,462 N.E.2d 774
• Parties: , 78 Ill.Dec. 655 Leonard J. ROBINS, Plaintiff-Appellant, v. Allan N. LASKY, Bennett H. Shulman, Norman E. Goldman and Spivak, Shulman & Goldman, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 774

462 N.E.2d 774

123 Ill.App.3d 194, 78 Ill.Dec. 655

Leonard J. ROBINS, Plaintiff-Appellant, v. Allan N. LASKY, Bennett H. Shulman, Norman E. Goldman and Spivak, Shulman & Goldman, Defendants-Appellees.

No. 82-3065.

Appellate Court of Illinois First District, Fifth Division.

March 30, 1984.

Allen H. Schultz, Chicago, for plaintiff-appellant; Schultz & Schultz, Chicago, of counsel.

Hinshaw, Culberton, Moelmann, Hoban & Fuller, Chicago, for defendants-appellees; D. Kendall Griffith, Gary A. Grasso, Joshua G. Vincent, Chicago, of counsel.

LORENZ, Justice:

In this appeal from an order dismissing his amended complaint against defendants for their alleged legal malpractice, the plaintiff contends that the trial court erred when it ruled that his amended complaint had failed to state a cause of action.

On January 10, 1981, plaintiff filed a verified complaint which alleged that he was an officer, director and stockholder of four retail liquor companies in Cook County, Illinois, and that he had retained the professional services of defendants Allan N. Lasky, Bennett H. Shulman and Norman E. Goldman, all attorneys at law, as well as the partnership of Spivack & Lasky (ultimately succeeded by Spivack, Shulman and Goldman), to represent him in defense of an anticipated tax deficiency assessment to be issued by the Illinois Department of Revenue, whereby plaintiff and his wife could be held personally liable for the corporate tax liabilities of these companies pursuant to section 452 1/2 of the Retailers' Occupation Tax Act. (Ill.Rev.Stat.1977, ch. 120, par. 452 1/2.) Further, plaintiff allegedly agreed to pay defendants in return for their services.

The verified complaint alleged that on February 8, 1978, defendants Lasky and Shulman advised plaintiff to establish his permanent legal residence in a state other than Illinois, in order to avoid service of process in Illinois in the expected tax litigation; that plaintiff and his wife uprooted their family and moved to Pompano Beach, Florida, at great expense, resulting in great mental, emotional and traumatic distress; and that as a result of this move, plaintiff suffered from a "fugitive complex."

It further alleged that plaintiff, while still residing in Florida, was served with process in the tax deficiency action at his former business office in Chicago, Illinois; that defendant Goldman's motion to quash the service of summons on plaintiff was denied; that defendants' advice to plaintiff to establish a new permanent residence in order to avoid service of process had no legal effect, inasmuch a section 444i of the Retailers' Occupation Tax (Ill.Rev.Stat.1977, ch. 120, par. 444i) provided for the appointment of the Secretary of State as an agent for service of process on persons who remove themselves from the State of Illinois or conceal their whereabouts to avoid tax liability under the Act; and that plaintiff had relied upon defendants' advice, thereby causing him to engage in the useless, futile and costly act of relocation.

Finally, it alleged that on September 2, 1980, plaintiff was advised for the first time, by his newly retained counsel, that the advice given to him by Lasky and Shulman, acting on behalf of the law firm of Spivack & Lasky, was grossly and wantonly negligent due to the provisions of section 444i; and that as a result of this negligent advice, plaintiff sought compensatory and punitive damages.

Subsequently, on February 9, 1981, plaintiff's newly retained counsel succeeded in having the tax deficiency suit dismissed against plaintiff and his wife, with prejudice.

Defendants' motion to strike the verified complaint on the grounds that it, inter alia, admitted that plaintiff would and did move to Florida to avoid service of process, was allowed on March 26, 1982. The trial court further granted plaintiff leave to file an amended complaint.

Plaintiff's unverified amended complaint, filed on May 14, 1982, alleged that defendants had advised plaintiff to establish his legal residence in a state other than Illinois, for a "short period of time," as the possibility, of resolving the alleged tax claims would be enhanced if, during the negotiation period, plaintiff was not served with process.

Defendants moved to dismiss the amended complaint, contending that the plaintiff was bound by the admissions of his prior verified complaint. Further, at the hearing on the motion to dismiss, plaintiff sought to amend paragraph six of his amended complaint by adding a statement that any admissions contained in paragraph five of the verified complaint "were made by mistake or inadvertence."

Although the trial court indicated that plaintiff's motion to amend was untimely, its final order dismissed the amended complaint "as further amended," holding that the additional allegations of mistake and inadvertence were conclusionary, and therefore did not supersede plaintiff's prior admissions in his verified complaint.

Plaintiff appeals from the trial court's order granting defendants' Shulman, Goldman and Spivack, Shulman and Goldman's motion to dismiss.

OPINION

Plaintiff contends that the trial court erred in dismissing his amended unverified complaint for alleged legal malpractice when it ruled that (1) plaintiff was bound by an admission contained in his original verified complaint, and (2) this admission by plaintiff therefore precluded him from seeking aid of the court to recover damages.

The pertinent portion of plaintiff's original verified complaint provided:

"5. On to-wit: February 8, 1978, defendant Lasky, together with defendant Shulman, advised plaintiff to establish their permanent legal residence in a state other than Illinois, in order to avoid service of process in Illinois, resulting from the contemplated actions by the Illinois Department of Revenue. Plaintiff was further advised by Lasky, not to return to Illinois unless plaintiff first received specific permission from him; thus causing plaintiff to suffer from a fugitive complex;

6. Plaintiff and his wife * * * acting upon the advice of the defendants, moved to Pompano Beach, Florida, * * *."

Plaintiff was subsequently given leave to amend, and filed an unverified amended complaint which read:

"6. Defendants advised plaintiff that the possibility of resolving the alleged tax claims with the Department would be enhanced, if during the negotiating period, plaintiff was not served with process. Thus, on or about February 8, 1978, defendants advised plaintiff to establish his legal residence in a state other than Illinois, for a short period of time, while they would be negotiating to settle the tax matters with the Department. Plaintiff was further advised by said defendants that such conduct by plaintiff would not be illegal or immoral, inasmuch as defendants would file their appearance with the Department, and notify the office of the Illinois Attorney General that they represent plaintiff and his wife.

7. * * * plaintiff, acting upon the advice of defendants, moved to Pompano Beach, Florida, * * *."

At the hearing on the motion to dismiss the amended complaint, plaintiff amended paragraph six of the unverified amended complaint by adding the following:

"Defendants did file their appearance with the Department, and did notify the Office of the Illinois Attorney General that they represent plaintiff and his wife. The admissions, if any, contained in plaintiff's paragraph 5 of the original verified complaint were made by mistake or inadvertence." (Emphasis added.)

We initially consider plaintiff's contention that the trial court erred in granting defendants' motion to dismiss plaintiff's unverified amended complaint when it ruled that the plaintiff was bound by the admissions contained in his verified complaint.

It is a general rule to pleadings that an amendment which is complete in itself, and does not refer to, or adopt, the prior pleadings, ordinarily supersedes it and the prior pleading ceases to be part of the record, being in effect abandoned or withdrawn. (W.P. Iverson & Co. v. Dunham Manufacturing Co. (1958), 18 Ill.App.2d 404, 425, 152 N.E.2d 615, 625.) In such a case, admissions of a party in the unverified original pleadings may be used as evidentiary admissions, rather than judicial admissions. City National Bank and Trust Co. v. Oberheide Coal Co. (1940), 307 Ill.App. 519, 30 N.E.2d 753.

The case before us, however, is illustrative of an exception to these general rules of pleading and evidence. Where the original pleading is verified it remains part of the record upon the filing of an amended pleading. (People v. Central Manufacturing Dist. Bank (1940), 306 Ill.App. 15, 28 N.E.2d 154.) Thus, the admissions of a party contained in an original verified pleading are judicial admissions and still bind the pleader even after the filing of an amended pleading which supersedes the original. (Yarc v. American Hospital Supply Corp. (1974), 17 Ill.App.3d 667, 670, 307 N.E.2d 749, 752.) Judicial admissions are not in evidence at all, but are formal admissions in the pleadings, * * *, which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Precision Extrusions, Inc. v. Stewart (1962), 36 Ill.App.2d 30, 50, 183 N.E.2d 547, 556.

Plaintiff argues that his unverified amended complaint should supersede his original verified complaint based upon the rule in Burdin v. Jefferson Trust and Savings Bank (1971), 133 Ill.App.2d 703, 708, 269 N.E.2d 340, where the court stated:

" * * * admissions in a verified pleading still bind the pleader after the filing of an amended pleading which supersedes the original pleading unless the amended pleading discloses that the admissions were made through mistake or inadvertence." (Emphasis added.)

To illustrate a recent application of the rule in Burdin, plaintiff cites Colgan v. Premier Electrical Construction Company (1981), 92 Ill.App.3d 407, 47 Ill.Dec. 248, 414...