Civil Litigation FlashPoints February 2006

The Illinois Appellate Court, First District, recently dealt with two cases where defendants moved to dismiss a legal malpractice claim pursuant to § 2-619(a)(9). See Sherri Webb et al., v. Mark Damisch, et al., No. 1-04-3823, -- N.E.2d --, 2005 Ill. App. LEXIS 1263, 2005 WL 3470215 (Ill. App. 1 Dist. Dec. 19, 2005); Jose Lopez v. Clifford Law Offices, P.C., et al., Nos. 1-04-1805 & 1-04-3220 cons., -- N.E.2d --, 2005 Ill. App. LEXIS 1211, 2005 WL 3372732 (Ill. App. 1 Dist. Dec. 12, 2005). In both cases, the defendants argued that “other affirmative matter” had the legal effect of defeating the malpractice claim. This argument worked in one case, but failed in the other. Let’s see why.

A brief refresher on the legal standards of a § 2-619 motion to dismiss is necessary to put these cases in perspective. A motion to dismiss under § 2-619 “allows for a threshold disposition of questions of law and easily proven issues of fact.” See Mio v. Alberto-Culver, 306 Ill.App.3d 822, 824 (1999). Under § 2-619 a motion to dismiss should be granted if, after construing the pleadings and supporting documents in the light most favorable to the non-moving party, the trial court finds that no set of facts can be proved upon which relief can be granted. Mio, 306 Ill.App.3d at 825. Section 2-619(a)(9) is a catch all provision that permits a dismissal when “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2000) [Emphasis added]. This “other affirmative matter” must be apparent on the face of the complaint or supported by affidavits or other evidentiary material. See Epstein v. Chicago Board of Education, 178 Ill.2d 370, 383 (1997).

In the first of the two cases, Webb, et al. v. Damisch, et al., the Appellate Court affirmed the dismissal of a claim for legal malpractice under § 2-619(a)(9). In this case, plaintiffs hired defendant attorneys to represent them in recovering damages for plaintiffs’ injuries suffered in an automobile accident. Plaintiffs alleged that defendants were negligent because they: 1) failed to sue General Motors (GM) for strict liability of a manufacturing defect in the automobile in which plaintiffs were traveling; and 2) failed to secure the automobile involved in the accident to use as evidentiary material at trial. Defendants asserted that plaintiffs could not establish either the proximate causation or damages elements of legal malpractice because plaintiffs’ successor counsel sued GM for strict liability and negotiated a settlement in plaintiffs’ favor. The court noted that a settlement by successor counsel does not necessarily bar a malpractice action against prior counsel. However, the plaintiffs in this case were unable to establish that they were damaged by defendants. In the motion to dismiss, defendants presented evidence that 1) plaintiffs ultimately were able to pursue a strict liability suit against GM; 2) plaintiffs settled the strict liability case for a substantial amount ($2,200,265); and 3) plaintiffs acknowledged that the settlement amount was “fair and reasonable.” Defendants established these facts through supporting documentation to the dismissal motion, such as, among other things, the settlement agreement between plaintiffs and GM.

The court found that there was nothing in the record to contradict that the settlement was for anything less than the full value of plaintiffs’ claim. The court noted that where a party moving to dismiss a case pursuant to § 2-619 presents affirmative matters containing well-pleaded facts and the party opposing the motion does not file supporting documentation countering those facts, the moving party’s affirmative matters are accepted as true despite any contrary assertions in the party’s pleading. The court held that since the plaintiffs did not offer any documentation in response to the dismissal motion to show that they settled for a lesser amount than could have been reasonably expected, the trial court properly dismissed the malpractice lawsuit.

In the second of the two case, Lopez v. Clifford Law Offices,, the Appellate Court reversed a ruling in favor of defendant attorneys who moved to dismiss a claim for legal malpractice under § 2-619(a)(9). In this case, the plaintiff, Jose Lopez, retained defendant Clifford Law Offices (Clifford) to represent him and the estate of his deceased daughter, Elizabeth Lopez, in a wrongful death action after Elizabeth drowned in a pool that was allegedly maintained by the Rockford School District. Several months after their engagement, an attorney from Clifford wrote to Lopez informing him that the firm was unable to represent him and the estate. This letter incorrectly advised Lopez that the applicable statute of limitations was two years, when, in fact, it was only one year from the date of Elizabeth’s death pursuant to the Tort Immunity Act. See 745 ILCS 10/1-206 (West 2000). Lopez retained another attorney after the expiration of the one-year statute of limitations, but before the second anniversary of Elizabeth’s death, who filed a wrongful death action. Because the wrongful death action was filed after the expiration of the applicable statute of limitations, it was dismissed. Lopez then sued Clifford for legal malpractice.

The record was clear that the Clifford attorneys gave Lopez incorrect legal advice with respect to how much time he had left to file the wrongful death action. However, the defendant attorneys argued that there was a superseding cause that would defeat Clifford’s liability. Apparently, Lopez met with a second attorney to discuss the possibility of representation. That second attorney decided not to take the case and never entered into a retainer agreement with Lopez. The Clifford defendants argued that the malpractice action against them should be dismissed because they terminated their attorney-client relationship with Lopez within the one-year statute of limitation period when the wrongful death action was still viable, and because a second attorney’s intervention within that one-year period extinguished any duty the Clifford defendants owed to Lopez. The court found this argument unavailing because the second attorney did not undertake any representation in the Lopez wrongful death matter, and the second attorney’s cursory involvement in the matter was not enough to be “characterized as a superseding cause so as to relieve the original attorney of liability for his mistakes and shift it to the shoulders of the second attorney.” Moreover, Lopez filed an affidavit in response to the dismissal motion wherein he stated that had he known that the statute of limitations was one year, instead of two, he would have sought another attorney immediately after being turned down by the second attorney.

The court held that since no superseding cause operated so as to defeat the Clifford defendants’ liability as a matter of law, proximate cause in that case should be decided not as a matter of law, but by a trier of fact.

Practitioner’s Note: A Section 2-619 motion to dismiss should not be overlooked as a valuable arrow in a defense counsel’s quiver. It can be an effective tool in defense of a legal malpractice claim – as long as the requisite facts are present. Defense counsel should pay particular attention to the “other affirmative matter” portion of subsection (a) (9) as an opportunity to craft shrewd arguments in supported of dismissing a lawsuit. These two cases should shed some light on what courts construe as other affirmative matter.