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Harvey v. Mackay

OPINION FILED SEPTEMBER 27, 1982.

BETTY SANDER HARVEY, A/K/A DAVIS, PLAINTIFF-APPELLANT,

v.

JOHN R. MACKAY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Myron Gomberg, Judge, presiding.

JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff Betty Sander Harvey, pro se, appeals from an order entered by the circuit court of Cook County granting defendant John R. Mackay's motion to dismiss plaintiff's redraft of her fourth amended complaint. The sole issue for review is whether the trial court erred in so dismissing.

For the reasons hereinafter set forth, we affirm.

Plaintiff, pro se, filed an action in the circuit court arising out of the alleged negligence and breach of contract by defendant in the performance of legal services. Defendant, an attorney, was retained by plaintiff to investigate and protect plaintiff's interests arising out of the probate and settlement of her father's estate. Plaintiff believed that certain irregularities during the probate of the estate resulted in the diminution of the estate assets and deprived her of her proper inheritance. These issues have also been the subject of prior litigation in both the circuit and appellate courts>. Harvey v. Harris Trust & Savings Bank (1979), 73 Ill. App.3d 280, 391 N.E.2d 461 (Harvey I); Harvey v. Connor (1980), 85 Ill. App.3d 1061, 407 N.E.2d 879, appeal denied (1980), 81 Ill.2d 602 (Harvey II).

In Harvey I, plaintiff alleged in a pro se complaint that the Harris Trust & Savings Bank (Harris Bank) had breached its testamentary trust of the decedent in renouncing its nomination as executor of the estate of plaintiff's father. That complaint was dismissed by the circuit court for failure to sustain a cause of action and because the action was time barred. (73 Ill. App.3d 280, 285.) Counsel retained by plaintiff attempted to vacate this order, alleging fraudulent concealment of a cause of action by Harris Bank. On appeal, this court found nothing in the record to suggest fraudulent acts or representations concealing a cause of action. (73 Ill. App.3d 280, 287.) We also found that the complaint had been filed over five years after the events relied on in that action had transpired. 73 Ill. App.3d 280, 288.

In Harvey II, plaintiff charged the attorney who represented her during the probate proceedings with legal malpractice. The complaint in that case, also filed pro se, accused the attorney of aiding others to loot her father's estate and to defraud her. The case was dismissed because of the applicable statute of limitations. (Ill. Rev. Stat. 1977, ch. 83, par. 16.) On appeal, this court found the regular five-year limitations period applied to the case, even when considering the allegations of fraudulent conduct. 85 Ill. App.3d 1061, 1063.

In this case, plaintiff's redraft of the fourth amended complaint contains seven counts alleging various acts of negligence and breach of contract in representing her interests. The first three counts basically attempt to allege negligence on the part of defendant, while the remaining counts sound in breach of contract.

Count I attempts to allege that defendant negligently failed to file suit against the Harris Bank within the proper statute of limitations. Defendant was retained to recover alleged financial losses sustained by plaintiff during the administration of her father's estate and "to seek redress against those determined to be responsible." A retainer fee was paid to defendant. The allegations contained in this count recite many of the events surrounding the probate proceedings of her father's estate, particularly the refusal of Harris Bank to accept its nomination as executor.

Count II alleges that defendant was negligent in the examination of the title to a parcel of real estate which had been an asset of her father's corporation. Because of this alleged negligence plaintiff claims she was not aware of a cause of action for false misrepresentations against her stepmother as the administrator of the estate. Count III also alleges negligence in that defendant advised plaintiff that her stepmother was a proper heir of the estate. In making this claim, plaintiff relies on the allegation that the will disinherited her stepmother if she elected to renounce it.

Count IV is similar in its allegations to count I. This count, however, attempts to allege a breach of contract for defendant's failure to bring a lawsuit against Harris Bank. Count V alleges a breach of contract by defendant for not bringing suit against Charles Connor, the attorney who represented plaintiff during the probate proceedings. This count alleges fraudulent acts by Connor in covering up the wrongful acts of Harris Bank. It also alleges that her pro se action against Connor was dismissed as time barred by application of the statute of limitations.

Counts VI and VII also attempt to make breach of contract allegations against defendant. These counts contain broad allegations of fraudulent acts by her stepmother and several attorneys who represented the various parties during the probate proceedings. These acts, it is alleged, led to the loss of estate assets and resulted in a fraudulent settlement agreement entered into by plaintiff, her stepmother and sister. Defendant allegedly breached the retainer contract with plaintiff by not petitioning to set aside the settlement agreement and also not filing suit against the parties who allegedly perpetrated the fraudulent activities.

The original complaint in this cause was filed on June 9, 1977. On three occasions in the next 13 months plaintiff amended the complaint on her own motion. Defendant moved to strike and dismiss that complaint as amended for, among other reasons, failure to state a cause of action. That motion was granted, and plaintiff was allowed 56 days to file a new amended complaint. A fourth amended complaint was filed in May 1979 and was again subject to defendant's motion to strike and dismiss. In November 1979 plaintiff was granted leave to present a redraft of the fourth amended complaint "following the guidelines set out by the Court."

Several paragraphs and improper prayers for relief in the redraft were stricken by order of the court in March 1980. Plaintiff, feeling that the court was prejudiced against her, requested a change of venue. This motion was denied in July 1980. A motion to vacate this order was also denied by the trial court.

On March 9, 1981, defendant's motion to strike and dismiss plaintiff's redraft of the fourth amended complaint was granted. Dismissal was with prejudice for failure to state a ...


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