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Jones v. Siesennop

OPINION FILED DECEMBER 20, 1977.

LYDIA M. JONES BY SHARON LEBIKE, HER ADM'R, PLAINTIFF-APPELLANT,

v.

THOMAS C. SIESENNOP, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. NICHOLAS BUA, Judge, presiding.

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Sharon LeBike, the administrator of the estate of Lydia M. Jones, appeals an order of the circuit court of Cook County denying her motion to be substituted as a party plaintiff and granting the motion of defendant, Thomas C. Siesennop, to dismiss the cause, with prejudice. The sole issue on appeal is whether an action for professional negligence against an attorney abates with the death of the plaintiff.

The original plaintiff, Lydia M. Jones, filed a complaint which alleged in relevant part that defendant Alpine Real Estate had engaged the services of defendant Siesennop, an attorney at law, to represent both the sellers, the Pompes, and the buyers, plaintiff and her (now deceased) husband, at a real estate closing. Count II of the complaint alleged that defendant failed to provide plaintiff with a clear title to the property purchased by failing to secure and record a release of a prior mortgage on the property. No release had been recorded as of the date of the filing of the complaint. Paragraph 8 of the complaint alleged: "Defendant was negligent in his handling of the real estate transaction and has caused the plaintiff to suffer great damage." Plaintiff sought the award of $40,000 in damages, plus the costs of a suit to quiet title to the property.

Defendant's answer stated that he lacked knowledge necessary to deny or admit the allegations of the complaint. Other allegations of the plaintiff's complaint were generally denied by defendant.

Sharon LeBike, the appellant here, moved to be substituted as plaintiff, alleging plaintiff's death and that letters of administration had been issued to LeBike, as administrator.

The court denied LeBike's motion to be substituted as plaintiff, and dismissed the action against Siesennop, with prejudice. The order stated:

"It is further ordered that as to the decision in regard to the denial of the motion to substitute of the Estate of Lydia Jones as to Thomas Siesennop the court hereby has based its decision on the Butterman v. Chamales (73 Ill. App.2d 399) [sic] and has decided in that regard that this is a final and appealable order."

I.

Appellant contends that an action for professional negligence against an attorney survives the death of the plaintiff and may be pursued by her personal representative. Appellant relies on our opinion in Shapiro v. Chernoff (1st Dist. 1972), 3 Ill. App.3d 396, 402-03, 279 N.E.2d 454, where we reviewed the common law distinction between those actions which survived and those which abated upon the death of a party. There we stated that the common law distinction was based on the type of injury of which the plaintiff complained. If the interest to be protected was primarily a property interest, the action survived. If the interest was primarily personal, the action was held to abate. We also noted the development of a second test of survivability: whether or not the action is assignable. Appellant maintains that plaintiff's action against defendant meets both tests.

Appellant also contends that Butterman v. Chamales (1st Dist. 1966), 73 Ill. App.2d 399, 220 N.E.2d 81, which formed the basis for the trial court's ruling, is factually distinguishable. The distinction urged is that in Butterman, the deceased party was the defendant-attorney, whereas here, the deceased party is the plaintiff.

Defendant relies squarely on Butterman in arguing that an action for professional negligence against an attorney does not survive the death of either party under the common law rule or under the Illinois survival statute (Ill. Ann. Stat., ch. 3, par. 27-6 (Smith-Hurd 1977 Supp.)). *fn1 Defendant also raises two additional arguments which, because of the nature of our disposition of the case, we need not reach.

We agree with defendant that the factual distinction between Butterman and the case at bar is inconsequential. However, we conclude that the principles which formed the foundation of this court's decision in Butterman no longer prevail and that a different result is therefore mandated.

Butterman was an action for professional negligence brought against the estate of the defendant attorney. The complaint alleged that defendant had been retained to represent plaintiff in an action against a stock brokerage firm, and that the action had been dismissed for want of prosecution when the defendant had negligently failed to answer a trial call. Plaintiff further alleged that defendant had failed to file a suit on her behalf in Federal court, thus allowing the statute of limitations to run.

The executrix of the attorney's estate moved to dismiss the action on the ground, among others, that a malpractice claim does not survive the death of the defendant attorney. The trial court granted the motion to dismiss. Plaintiff then filed an amended complaint based on a theory of breach of the contract of retainer. The trial court also dismissed that complaint, stating that the nature of the ...


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