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Ochoa v. Maloney





APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.


In this appeal, the issues presented by plaintiffs are whether the trial court acted improperly in dismissing their complaint and denying them leave to amend, and whether they should be granted leave to file an amended complaint in this court.

The record discloses that Raul Gonzales was convicted of murder and sentenced to a term of 25-50 years following which his mother, Mary Ochoa, retained the legal services of defendants and paid them $3,500 to appeal her son's conviction. A notice of appeal was filed and subsequently this court dismissed the appeal for want of prosecution. Defendants were then sued by plaintiffs, who alleged in count I of their complaint that Mary Ochoa had retained defendants to prosecute Raul's appeal and paid them a fee of $3,500; that the appeal was dismissed when defendants failed to timely file a brief and abstract; that after the dismissal, defendant Richard Devine sent a letter to Raul stating that he was preparing a brief and that a copy would be forwarded to Raul; and that because the appeal was not handled by defendants in a manner commensurate with the standards and practices of the legal profession, Raul's right to appeal was lost. Plaintiffs asked for judgment in the amount of $3,500 and $500,000 in punitive damages.

Count II incorporated by reference the allegations of count I and further alleged that defendants, with intent to defraud and deceive, conspired to falsely represent that they would pursue Raul's appeal; that relying on the representation plaintiffs were induced to pay $3,500 to defendants and, by reason of the fraudulent and deceitful representations of defendants, they were defrauded of $3,500. As in count I, plaintiffs asked judgment in the amount of $3,500 and $500,000 in punitive damages.

Certain portions of plaintiffs' complaint were stricken by order of the trial court, and plaintiffs' motion to vacate that order was pending when, on defendants' motion in this court, Raul's appeal was reinstated and defendants were directed to and did deposit with the clerk of this court the $3,500 fee they had received. On motion of Raul's mother, we have since ordered that the money be returned to her.

Thereafter, the trial court allowed a motion of defendants to dismiss plaintiffs' complaint, finding that the allegations of count I, sounding in breach of contract and legal malpractice, were premature and that count II, sounding in fraud, did not state a cause of action. From that order, which included a denial of their motion for leave to amend the complaint, plaintiffs brought this appeal.

In the instant appeal, we denied a motion for leave to file a proposed amended complaint. Subsequently, in the prior appeal, we affirmed Raul's criminal conviction in People v. Gonzales (1978), 67 Ill. App.3d 215, 384 N.E.2d 788.


• 1 As noted above, in each of the two counts of the original complaint, plaintiffs asked judgment for $3,500 and punitive damages. During oral argument in this appeal, plaintiffs admitted that because of changed circumstances — the reinstatement of the appeal, the return of the fee and affirmance of Raul's conviction — they had no cause of action under the allegations in either count of the original complaint because compensatory damages were no longer recoverable. We agree, and it follows that they were not entitled to punitive damages as such may not be awarded in the absence of actual or compensatory damages. Tonchen v. All-Steel Equipment, Inc. (1973), 13 Ill. App.3d 454, 300 N.E.2d 616.

• 2 Moreover, it is the rule in Illinois that in an action for breach of contract there can be no claim for punitive or exemplary damages unless the breach amounts to an indepefdent wilful tort. (Ash v. Barrett (1971), 1 Ill. App.3d 414, 274 N.E.2d 149.) In Illinois Sterling, Inc. v. KDI Corp. (1975), 33 Ill. App.3d 666, 338 N.E.2d 51, the court quoted from 25 C.J.S. Damages § 120, at 1126-28 (1966), as follows:

"`As a general rule * * * exemplary damages are not recoverable in actions for the breach of contracts, irrespective of the motive on the part of defendant which prompted the breach * * *. No more can be recovered as damages than will fully compensate the party injured. * * *'

`[W]here the acts constituting a breach of contract also amount to a cause of action in tort, there may be a recovery of exemplary damages upon proper allegations and proof. As sometimes stated, exemplary damages are recoverable for a tort committed in connection with, but independently of, the breach of contract, where the essentials of an award of such damages are otherwise present, the allowance of such damages being for the tort and not for the breach of contract. In order to permit a recovery, however, the breach must be attended by some intentional wrong, insult, abuse, or gross negligence which amounts to an independent tort.'" 33 Ill. App.3d 666, 671, 338 N.E.2d 51, 54.

The Illinois Sterling, Inc. court held that a mere prayer for punitive damages in a complaint will not support a claim for punitive damages in a breach of contract action, as facts must be alleged from which it may be determined that the claim is based upon some recognized tort theory. See also Wallace v. Prudential Insurance Co. (1973), 12 Ill. App.3d 623, 299 N.E.2d 344, where the court, after stating the general rule that punitive damages are not to be allowed in actions for breach of contract, said:

"This rule does not obtain, however, in those exceptional cases where the breach amounts to an independent, willful tort, in which event exemplary damages may be recovered under proper allegations of malice, wantonness, or oppression. ...

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