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Pelham v. Griesheimer

OPINION FILED JUNE 18, 1982.

THOMAS PELHAM ET AL., APPELLANTS,

v.

RONALD E. GRIESHEIMER, APPELLEE.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. Bruce R. Fawell, Judge, presiding.

CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal the dismissal of their amended complaint for failure to state a cause of action for legal malpractice against the defendant, Ronald Griesheimer. The circuit court of Lake County held that there was no attorney-client relationship between the plaintiffs and the defendant and that therefore no cause of action for legal malpractice was stated. The appellate court affirmed. (93 Ill. App.3d 751.) We granted plaintiffs leave to appeal (73 Ill.2d R. 315).

Plaintiffs' amended complaint alleges that the defendant was retained to represent Loretta Ray in a divorce action against her husband, George Ray. The plaintiffs herein are the children of Loretta and George Ray, all of whom were minors at the time the divorce was granted in June 1971. The divorce decree contained a provision requiring George Ray to "maintain all four of his children as the prime beneficiaries in his life insurance policies." George Ray had a $10,000 life insurance policy through his employer at the time the divorce decree was entered. After the divorce decree was entered, he remarried and named his second wife the beneficiary of the insurance policy. She received the proceeds after his death in 1976.

The complaint also alleges that the defendant owes the plaintiffs "the duty to exercise a reasonable degree of professional care and skill, as an attorney, with reference to seeing that the plaintiffs became the prime beneficiaries in all life insurance policies which insured GEORGE J. RAY." The complaint also alleges that the defendant breached that duty by "negligently and carelessly," inter alia, failing to notify George Ray's employer, or the insurance company, of the divorce-decree provision and failing to advise Loretta Ray to notify her ex-husband's employer or insurance company of the provision. Finally, the amended complaint alleges that "as a direct and proximate result of the negligent acts or omissions of the defendant" the plaintiffs have suffered monetary damage.

Plaintiffs argue that their complaint states a cause of action for breach of contract. The plaintiffs maintain that this complaint should be construed to allege that the children are direct third-party beneficiaries of the contract between their mother, Loretta Ray, and her attorney, the defendant. The defendant argues that the complaint fails to allege that a contract was entered into for the direct benefit of the plaintiffs and that, in any event, the plaintiffs herein could not have been intended beneficiaries of the contract.

The purpose of pleadings is to present, define and narrow the issues and limit the proof needed at trial. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill.2d 300, 307.) We acknowledge that pleadings are to be liberally construed with a view to doing justice between the parties. (Ill. Rev. Stat. 1977, ch. 110, par. 33(3).) In considering a motion to dismiss, however, "the pleadings are to be construed strictly against the pleader." (Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 421.) Illinois requires fact pleading under its Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, pars. 31, 33.) Notice pleading, as used in Federal courts> and other jurisdictions, is not sufficient. Although sections 42(2) and 33(3) of our practice act (Ill. Rev. Stat. 1977, ch. 110, pars. 42(2), 33(3)) contain provisions concerning liberal construction, such provisions do not remedy the failure of a complaint to state a cause of action. Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 427.

The amended complaint herein clearly fails to state a cause of action for breach of contract. The amended complaint fails to allege, legally or factually, that a contract was entered into for the direct benefit of the plaintiffs, which is an indispensable element of a third-party beneficiary theory of recovery. (Altevogt v. Brinkoetter (1981), 85 Ill.2d 44; People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill.2d 381; Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252.) The making of a contract with an attorney for the benefit of a third party does not necessarily create an attorney-client relationship between the attorney and the third-party beneficiary.

Also, this complaint for legal malpractice is couched in terms of negligence, not contract. Throughout the complaint there are allegations that the defendant attorney owed certain duties to the plaintiffs and that he negligently breached those duties. Paragraph 4 of the complaint states:

"That the Defendant * * * owed to the Plaintiffs the duty to exercise a reasonable degree of professional care and skill, as an attorney * * *."

Paragraph 5 states:

"That the Defendant * * * failed to exercise a reasonable degree of professional care and skill by negligently and carelessly doing one or more of the following * * *."

Paragraph 8 states:

"That as a direct and proximate result of the negligent acts or omissions of ...


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