Suppressed v. Suppressed, 1-89-2950

• Decision Date: 30 November 1990
• Docket Number: No. 1-89-2950,1-89-2950
• Parties: , 151 Ill.Dec. 830, 59 USLW 2402 SUPPRESSED, Plaintiff-Appellant, v. SUPPRESSED, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 101

565 N.E.2d 101

206 Ill.App.3d 918, 151 Ill.Dec. 830,

59 USLW 2402

SUPPRESSED, Plaintiff-Appellant, v. SUPPRESSED, Defendants-Appellees.

No. 1-89-2950.

Appellate Court of Illinois,

First District, Fifth Division.

Nov. 30, 1990.

John S. Elson, Northwestern University Legal Clinic, Chicago, for plaintiff-appellant.

Stephen R. Swofford, Thomas P. McGarry, Bruce L. Carmen ( Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of counsel), Chicago, for defendants-appellees.

Justice MURRAY delivered the opinion of the court:

Plaintiff appeals the order of the circuit court of Cook County granting defendants' section 2-619 motion (Ill.Rev.Stat.1987, ch. 110, par. 2-619) and dismissing her cause of action with prejudice as barred by the statute of limitations. We affirm.

Prior to the filing of plaintiff's complaint, defendants filed a suit in chancery to obtain an order requiring that the complaint in this case be filed without revealing the names of the parties and that the court record be impounded. Such an order was obtained ex parte on December 2, 1988. ¹ For this reason the case has proceeded under the above caption rather than the actual names of the parties.

On December 8, 1988, plaintiff, a 40-year-old woman and mother of three children, filed a three-count complaint against an attorney (herein referred to as defendant) whom she hired to represent her in a divorce action and his law firm (collectively referred to as the suppressed defendants). In count I, which purported to be a claim for breach of fiduciary duty, plaintiff alleged that defendant psychologically coerced or seduced her into having sexual relations with him at the same time that he was to be representing her in a divorce action. In count II, plaintiff sought to hold all of the shareholders of defendant's law firm, a professional service corporation, jointly and severally liable for the injuries she sustained at the hands of the defendant. In count III, plaintiff sought to hold the law firm, itself, liable for the acts of defendant.

More specifically, plaintiff alleged that, because she was having marital difficulties, she telephoned the defendant law firm on November 2, 1983, in an attempt to engage the services of an attorney. She claimed that she contacted this particular law firm because of its purported expertise in the area of domestic relations law. She was given an appointment with defendant and, after meeting him and speaking with him on November 4, 1983, she paid him a $2500 retainer upon his agreement to represent her in a divorce proceeding. After a brief attempt at reconciliation with her husband, plaintiff met with defendant on November 15, 1983, at which time they discussed, at length, her marital situation and her impending divorce litigation.

Plaintiff further avers that subsequently, on December 10, 1983, she went to defendant's office, at his request, to discuss her case. On this occasion defendant locked his office door and then unzipped his pants. He then requested that plaintiff have oral sex with him. Plaintiff contended that she was "stunned and confused" but that she complied because she was "fearful that he [defendant] would not advocate for her and her childrens' interests in her divorce case were she to refuse."

Despite plaintiff's purported aversion to defendant's behavior, she agreed to meet defendant at his office again on December 14, 1983, at which time defendant "told her that they would be going someplace." Defendant then instructed her to meet him in the building's lobby and she complied. Defendant soon joined her and obtained a taxi, which transported them to a nearby apartment building. In an apartment inside this building, defendant "insisted that [plaintiff] inhale a liquid solution" from a brown bottle, which made her light-headed and "tingling." Plaintiff then "submitted" to sexual intercourse with defendant. Again, plaintiff contended that the only reason that she accompanied defendant and complied with his wishes was "because of her fear that her refusal to do so would jeopardize (defendant's) willingness to adequately represent her and her childrens' interests."

Finally, plaintiff averred that on January 11, 1984, she again agreed to go with defendant to the same apartment. She again inhaled a substance from a brown bottle and complied with his desire to engage in sexual intercourse.

Apparently, sometime in February 1984, plaintiff decided to discharge defendant as her attorney and engage another attorney to represent her in her divorce action. Plaintiff's stated reason for dismissing defendant was her "growing belief" that defendant's sexual exploitation of her was not necessary to her divorce proceeding and that his actions were contrary to her interests. The divorce litigation proceeded with new counsel and plaintiff's marriage was dissolved, apparently to plaintiff's satisfaction, on May 30, 1984.

In July 1987, plaintiff filed a complaint against defendant with the Illinois Attorney Registration and Disciplinary Commission, setting forth the same facts as alleged in the present action. After reviewing the matter, the Inquiry Board determined on August 19, 1988, that the investigation should be closed without any action taken. Then, in December 1988, nearly five years after the last alleged incident, plaintiff filed her complaint at law against defendant and his law firm. The defendants filed motions to dismiss under the provisions of sections 2-615 and 2-619 of the Illinois Code of Civil Procedure. (Ill.Rev.Stat.1987, ch. 110, pars. 2-615, 2-619.) Without deciding on defendant's section 2-615 motion, the trial court dismissed the complaint pursuant to section 2-619 of the Code, based upon its conclusion that the two-year statute of limitations on personal injury actions applied. (Ill.Rev.Stat.1987, ch. 110, par. 13-202.) The trial court inserted into the order the language from Supreme Court Rule 304(a) (Ill.Rev.Stat.1987, ch. 110A, par. 304(a)) making the decision final and appealable and plaintiff has filed this timely appeal.

On appeal plaintiff argues that the trial court erroneously applied the two-year statute of limitations for personal injury actions to the case. (Ill.Rev.Stat.1987, ch. 110, par. 13-202.) She contends that her complaint states a cause of action for breach of the fiduciary duty owed by an attorney to his client, which is a breach of the unwritten contract for legal services, thereby invoking the five-year statute of limitations. (Ill.Rev.Stat.1987, ch. 110, par. 13-205; see also Tucek v. Grant (1984), 129 Ill.App.3d 236, 84 Ill.Dec. 603, 472 N.E.2d 563, claim of legal malpractice falls within the ambit of five-year statute of limitations dealing with actions on unwritten contracts and other civil actions not otherwise provided for.) Alternatively, plaintiff attempts to convince this court that defendant fraudulently concealed from plaintiff the fact that his actions created a conflict of interest, giving rise to a cause of action. Thus, plaintiff argues that the statute of limitations to be applied is the one applicable to cases involving fraudulent concealment. Ill.Rev.Stat.1987, ch. 110, par. 13-215.

This is a case of first impression despite the fact that the activity involved has been considered a wrong since biblical times. Also, surprisingly, there appears to be only one documented case that even touches upon the issue of sexual involvement in the context of an attorney-client relationship (see Barbara A. v. John G. (1983), 145 Cal.App.3d 369, 193 Cal.Rptr. 422), although there have apparently been several law journal articles on the subject and various state bar and ethics committee opinions have addressed the matter.

Certainly this court is not so naive that it believes that the lack of case law is due to an absence of such activity within the legal community. However, our recognition that such activity exists and our disapproval of it, is not what is at issue here. What is at issue is (1) whether plaintiff's complaint sets forth facts that state a cause of action for breach of the fiduciary duty owed by an attorney to his client (legal malpractice), thereby invoking the five-year statute of limitations, or (2) whether plaintiff's cause of action, if a personal injury action, should still be viable because defendant fraudulently concealed the cause of action from plaintiff's knowledge.

We first consider whether plaintiff has sufficiently pled a cause of action for breach of the attorney-client contract or legal malpractice. The trial court implicitly held that plaintiff did not state such a cause of action by finding that the two-year statute of limitations applied to the case. An action for legal malpractice is one sounding in tort, which arises out of a contract, express or implied, for legal services (Land v. Greenwood (1985), 133 Ill.App.3d 537, 88 Ill.Dec. 595, 478 N.E.2d 1203) and, as such, falls within the ambit of the five-year statute of limitations dealing with actions on unwritten contracts or other civil actions not otherwise provided for. ( Tucek v. Grant, 129 Ill.App.3d at 240, 84 Ill.Dec. 603, 472 N.E.2d 563.) Consequently, in order to determine whether the trial court correctly dismissed the case, we must first decide whether plaintiff stated a cause of action based upon her alleged breach of a fiduciary duty created by the attorney-client contract, keeping in mind that a motion to strike or dismiss admits all well-pleaded facts and any reasonable inferences that may be drawn from those facts. (Sharps v. Stein (1980), 90 Ill.App.3d 435, 45 Ill.Dec. 742, 413 N.E.2d 75.) Also, when deciding whether a complaint states a cause of action, this court must look to the legal sufficiency, not the factual sufficiency. Interway, Inc. v. Alagna (1980), 85 Ill.App.3d 1094, 41 Ill.Dec. 117, 407 N.E.2d 615.

In an action for legal malpractice, a plaintiff must plead (1) that the attorney owed plaintiff a duty of care arising from an...