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Doyle v. Shlensky





Appeal from the Circuit Court of Cook County; the Hon. Arthur Sullivan, Judge, presiding.


Plaintiff Robert Doyle appeals from the order dismissing count I of the amended complaint and from the order dismissing counts II, III, IV and V of the "Second Amendment to the Complaint." Plaintiff raises two issues on appeal: (1) whether the court erred in dismissing each of the counts of the second amendment to the complaint as substantially insufficient as a matter of law; and (2) whether the court erred in holding that the claims against defendant attorneys Walker and Auerbach were released by the divorce judgment. We affirm.

In 1974, defendant Dorothy Doyle, represented by defendants Marshall J. Auerbach and J. Stephen Walker, filed a complaint for divorce against plaintiff Robert Doyle, who thereafter counterclaimed for divorce. In the course of the divorce proceeding, the court entered an order pursuant to Supreme Court Rule 215 (73 Ill.2d R. 215) directing both Mr. and Mrs. Doyle to be examined by defendant Dr. Robert Shlensky, a psychiatrist, and ordering that the expense of the examination be paid with funds from a specified bank account. Robert Doyle was awarded a "Judgment for Divorce" by order approved by both parties and entered on June 22, 1976. The judgment order, which contained a general release of claims of each party against the other party and the agents and servants thereof, was never appealed.

Plaintiff initiated this action in February 1979 by filing a single-count complaint for breach of contract against defendant Dr. Shlensky in which he sought to recover the fees he had been ordered to pay Dr. Shlensky for the court-ordered psychiatric examination. Subsequent amendments added as defendants plaintiff's ex-wife, Dorothy Doyle, and her attorneys, J. Stephen Walker and Marshall Auerbach. Plaintiff's fourth pleading, denominated "Second Amendment to the Complaint at Law," consists of counts II, III, IV and V. In count II, plaintiff charged Walker, Auerbach and Shlensky with legal and medical malpractice, respectively, for their actions in the divorce proceeding. In count III plaintiff alleges that the conduct of Walker constitutes malicious use and abuse of judicial process. Plaintiff alleges in count IV that actions taken by Dorothy Doyle, Walker and Auerbach as part of the divorce proceeding constitute malicious prosecution. In count V plaintiff in the alternative charges defendant Shlensky with breach of contract and charges defendants Walker and Auerbach with interference with contract. In each count, plaintiff seeks substantial compensatory and punitive damages. Upon defendants' motions, the trial court dismissed counts II, III, IV and V by order entered December 4, 1980.

Plaintiff's initial appeal of the December 4, 1980, order was dismissed by this court because the order was not appealable in that count I remained pending and no express finding as required under Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)) had been entered. (Doyle v. Shlensky (1982), 103 Ill. App.3d 1199 (Rule 23 Order).) Thereafter, the trial court on March 23, 1982, entered an order dismissing count I. Plaintiff now appeals the December 4, 1980, order and the March 23, 1982, order.



The first issue raised is whether the court erred in dismissing each of the counts of the "Second Amendment to the Complaint" as substantially insufficient as a matter of law.

Initially, defendants Walker and Auerbach contend that plaintiff's complaint is repetitive, conclusory and incoherent and that it is not a "plain and concise statement" as required by section 33 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 33), now codified as section 2-603 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-603). Defendants argue that these violations alone support the trial court's dismissal of plaintiff's amended complaint. In determining the sufficiency of a pleading we must, however, obey the statutory mandate: "Pleadings shall be liberally construed with a view to doing substantial justice between the parties." (Ill. Rev. Stat. 1981, ch. 110, par. 33.) Our review will, therefore, include an examination of each count of the complaint.

Plaintiff contends generally that the court erred in dismissing the complaint and maintains that each count of his amended pleading sufficiently states a cause of action.

Illinois is a fact-pleading State. This means that although pleadings are to be liberally construed and formal or technical allegations are not necessary, a complaint must contain those "substantial averments of fact necessary to state a cause of action." (Fanning v. LeMay (1967), 38 Ill.2d 209, 211, 230 N.E.2d 182; Ill. Rev. Stat. 1981, ch. 110, par. 31, now codified as Ill. Rev. Stat. 1981, ch. 110, par. 2-601.) To state a cause of action a complaint must be both legally and factually sufficient; it must set forth a legally recognized claim as its basis for recovery and must plead facts which bring the claim within the legally recognized cause of action alleged. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill.2d 300, 430 N.E.2d 1005.) Failure to meet both requirements mandates dismissal of the complaint. (People ex rel. Fahner.) When examining the legal sufficiency of a complaint, a court must assume the truth of "all facts properly pleaded" (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill.2d 93, 96, 187 N.E.2d 722), but it must ignore "conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest" (Pierce v. Carpentier (1960), 20 Ill.2d 526, 531, 169 N.E.2d 747). A cause of action should not be dismissed on the pleadings unless it is clear that plaintiff can prove no set of facts which will entitle him to recover. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill.2d 179, 380 N.E.2d 790.) Guided by these general principles, we will now address plaintiff's contentions.

Count II: In substance, plaintiff alleges in count II that defendants Shlensky, Walker and Auerbach are guilty of medical and legal malpractice, respectively, stemming from alleged violations of Illinois statutes and medical and legal canons of ethics pertaining to his psychiatric examination conducted pursuant to court order.

First considering the allegations against defendants Walker and Auerbach, said defendants argue, inter alia, that count II contains no factual allegations sufficient to state a cause of action and, moreover, that an action for malpractice can be brought only by a client. They conclude, therefore, that count II was properly dismissed by the trial court.

The traditional rule in Illinois has been that "an attorney owes a professional duty only to his client. In the absence of a duty to a third-person, non-client, no cause of action based on negligent performance of professional services can exist." (Favata v. Rosenberg (1982), 106 Ill. App.3d 572, 573-74, 436 N.E.2d 49.) Recently, however, the supreme court stated that "privity is not an indispensable prerequisite to establishing a duty of care between a non-client and an attorney in a suit for legal malpractice" and thereby extended a lawyer's responsibility to certain third parties. (Pelham v. Griesheimer (1982), 92 Ill.2d 13, 19, 440 N.E.2d 96.) Pelham did not extend a lawyer's liability to an unlimited number of potential plaintiffs, however, but limited the scope of duty owed by an attorney to nonclients by stating that to establish such a duty the non-client must allege and prove that the primary purpose and intent of the attorney-client relationship itself was to benefit the non-client third party.

In Pelham the plaintiffs were the children of Loretta and George Ray. The complaint for legal malpractice alleged that the defendant attorney, retained to represent Loretta in a dissolution of marriage action against George, owed to plaintiffs the duty to exercise a reasonable degree of professional care and skill as an attorney in seeing that plaintiffs became the prime beneficiaries of George's life insurance policies in accordance with the terms of the divorce decree. Applying the "intent to directly benefit" test, the Pelham court found that the defendant attorney was hired primarily for the purpose of obtaining a divorce, property settlement and custody of the minor children for Loretta, not to represent her children's interests. The court concluded that under the facts as pleaded no duty in negligence was owed by the defendant attorney to his client's children and, therefore, no cause of action for legal malpractice was stated.

• 1 Although Pelham expanded an attorney's scope of liability to nonclients, it did not extend such liability to the situation presented in the instant case. The Pelham court stated: "Dissolution [of marriage] proceedings are, for the most part, adversarial in nature. To conclude that an attorney representing one of the spouses also owes a legal duty to the children of the two litigants would clearly create conflict-of-interest situations." (92 Ill.2d 13, 23.) In the instant case plaintiff makes no allegation of an attorney-client relationship with defendant attorneys but urges that defendants Walker and Auerbach owed a legal duty to him while acting as opposing counsel in the dissolution proceedings. Such an extension of liability clearly was not contemplated by Pelham. Because no attorney-client relationship existed between plaintiff and either of the attorney defendants and no duty is owed to plaintiff under Pelham, ...

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