APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order granting summary judgments in favor of appellees on their petition for attorneys' fees and on appellants' counter-claim for legal malpractice.
The petition and counter-claim stem from a protracted history of litigation by appellants, Mr. and Mrs. Gerald Schroeder, relating to a condemnation action instituted by the Trustees of Schools in 1959. This action was commenced pursuant to the eminent domain authority conferred upon school districts by Ill. Rev. Stat. 1959, ch. 122, par. 7-17. The Schroeders retained Wahler & Pecyna to defend the condemnation suit. The trial court denied their traverse, and a jury verdict of $267,088.33 was returned.
On post trial motion the trial court ordered a remittitur of $42,088.33. The Schroeders refused to file a remittitur and appealed the resulting order granting a new trial. The Supreme Court reversed and judgment was entered on the initial verdict. (Trustees of Schools v. Schroeder (1961), 23 Ill.2d 74.) The trial court complied with this order, awarding a sum of $280,936.10, the amount of the verdict plus costs and interest. The court entered a further order finding that the judgment award had been paid to the County Treasurer and that fee simple title was vested in the Trustees and empowered the Trustees to take possession of the property. On December 13, 1961, the Schroeders were evicted and the Trustees took possession.
On their second appeal taken to the Supreme Court, the Schroeders, through their attorneys, Wahler & Pecyna, unsuccessfully raised as the sole issue, "whether a school district governed by article 7 of the School Code, (Ill. Rev. Stat. 1959, ch. 122, pars. 7-1 to 7-23) is prohibited from taking land by eminent domain within 40 rods of the owners' dwelling." (Trustees of Schools v. Schroeder (1962), 25 Ill.2d 289, 290.) The Schroeders retained new counsel for a third appeal in which they raised a number of issues, including whether the pertinent eminent domain statute authorized the granting of a fee simple absolute interest as opposed to a lesser estate. The Supreme Court refused to rule on the merits of this appeal, holding that each of the arguments presented could have been raised in the second appeal and, not being raised, were deemed to be waived.
Further appeals arising from the original condemnation action were subsequently pursued in state and federal courts, but are irrelevant to the specific issues before use.
On June 28, 1962, Wahler & Pecyna served a Notice of Attorneys' Lien upon the Treasurer of Cook County, claiming fees for representing the Schroeders in the condemnation action and in the first two appeals. On December 26, 1962, in an action supplementary to the condemnation cause, Wahler & Pecyna petitioned the circuit court to order the County Treasurer to pay them the sum of $22,265.17 from the condemnation award still retained by that office. In 1968 petitioners filed an amendment to their petition for attorneys' fees, seeking in a second count the sum of $34,530.34 plus interest of $9,802.70 for a total of $44,333.04. In the interim the Schroeders had filed a counter-claim, Count II of which alleged malpractice against Wahler & Pecyna and sought $1,000,000 in damages.
Wahler & Pecyna moved for summary judgment on Count II of their petition for an attorneys' lien and fees and for summary judgment on Count II of the Schroeders' claim for malpractice. Both motions were granted. An attorneys' lien for $47,083.63 was allowed, and the County Treasurer was ordered to disburse that sum from the condemnation award. It is from these orders that the Schroeders have appealed.
• 1 If the pleadings, discovery depositions, exhibits and affidavits present a genuine issue as to any material fact, a summary judgment order should not be granted. (Ill. Rev. Stat. 1969, ch. 110, par. 57(3).) It is our task, therefore, to determine whether a genuine issue of material fact existed as to Count II of the petition for attorneys' fees or as to Count II of the counter-claim for malpractice.
Count II of the Schroeders' counter-claim sets forth five different allegations of malpractice. We believe that the last four of these allegations are so clearly without legal or factual merit that they warrant no discussion. The first allegation concerns the failure of Wahler & Pecyna to properly raise on appeal the theory that the then-existing School Code eminent domain provisions authorized a taking of no greater estate than a fee simple determinable. It is alleged that the attorneys and clients had agreed that all possible issues would be raised on appeal, including specifically the school districts lack of authority to acquire an estate in fee simple absolute through eminent domain. It is further alleged that in failing to assert this theory the counter-defendants waived a meritorious defense contrary to the specific instructions of their clients.
• 2 Appellants correctly cite the obligation of an attorney to follow the instructions of his client. Whenever an attorney disobeys the lawful instructions of his client he is liable for any loss which ensues from such act. (Fleener, v. Fleener (1970), 263 N.E.2d 879; Annot. (1928), 56 A.L.R. 962.) Damages will not be presumed, however, and the client bears the burden of proving that damages resulted. This burden involves the task of establishing that, but for the negligence complained of, the client would have been successful in the prosecution or defense of the action in question. (Oda v. Highway Insurance Co. (1963), 44 Ill. App.2d 235; Kimen v. Ettelson (1940), 303 Ill. App. 230; Annot., (1956), 45 A.L.R.2d 5, 21.) We therefore believe that unless counter-plaintiffs' theory that a school district can take no greater estate than a fee simple determinable finds some support in Illinois law, the court below was presented with no genuine issue of material fact, and summary judgment was appropriate.
• 3, 4 The Schroeders place primary reliance on Kelly v. Bowman (E.D. Ill. 1952), 104 F. Supp. 973. Initially, we point out that the issue before that court differed from that presented in the case at bar. In Kelly, the court sought to determine what quantum of estate was taken by a school district in a 1906 condemnation suit, where the record did not reflect the precise quantum of estate claimed in 1906 by that school district. We must determine whether section 7-17 of the 1959 Illinois School Code grants the power to take a fee simple absolute interest if a school district so desires. In the course of the Kelly opinion, however, the 1905 School Code's eminent domain provision, which was substantively similar to section 7-17, was interpreted at page 974:
"Section 151 provides and limits the taking of lands for the purpose of a schoolhouse site. There is no intention expressed by the legislature in this Act for the school district to obtain a fee simple title. It is quite clear that the Legislature intended that the Trustees were to exercise their rights of eminent domain in obtaining the school site for school purposes only."
The doctrine of stare decisis does not require this court to accept that federal trial court's interpretation of an Illinois statute. (Ray Schools-Chicago-Inc. v. Cummins (1957), 12 Ill.2d 376.) Our decision should be guided by the ...