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Robins v. Lasky

OPINION FILED MARCH 30, 1984.

LEONARD J. ROBINS, PLAINTIFF-APPELLANT,

v.

ALLAN N. LASKY ET AL., DEFENDANTS-APPELLEES.



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

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

In this appeal from an order dismissing his amended complaint against defendants for their alleged legal malpractice, the plaintiff contends that the trial court erred when it ruled that his amended complaint had failed to state a cause of action.

On January 10, 1981, plaintiff filed a verified complaint which alleged that he was an officer, director and stockholder of four retail liquor companies in Cook County, Illinois, and that he had retained the professional services of defendants Allan N. Lasky, Bennett H. Shulman and Norman E. Goldman, all attorneys at law, as well as the partnership of Spivack & Lasky (ultimately succeeded by Spivack, Shulman and Goldman), to represent him in defense of an anticipated tax deficiency assessment to be issued by the Illinois Department of Revenue, whereby plaintiff and his wife could be held personally liable for the corporate tax liabilities of these companies pursuant to section 13 1/2 of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 452 1/2). Further, plaintiff allegedly agreed to pay defendants in return for their services.

The verified complaint alleged that on February 8, 1978, defendants Lasky and Shulman advised plaintiff to establish his permanent legal residence in a State other than Illinois, in order to avoid service of process in Illinois in the expected tax litigation; that plaintiff and his wife uprooted their family and moved to Pompano Beach, Florida, at great expense, resulting in great mental, emotional and traumatic distress; and that as a result of this move, plaintiff suffered from a "fugitive complex."

It further alleged that plaintiff, while still residing in Florida, was served with process in the tax deficiency action at his former business office in Chicago, Illinois; that defendant Goldman's motion to quash the service of summons on plaintiff was denied; that defendants' advice to plaintiff to establish a new permanent residence in order to avoid service of process had no legal effect, inasmuch as section 5i of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 444i) provided for the appointment of the Secretary of State as an agent for service of process on persons who remove themselves from the State of Illinois or conceal their whereabouts to avoid tax liability under the Act; and that plaintiff had relied upon defendants' advice, thereby causing him to engage in the useless, futile and costly act of relocation.

Finally, it alleged that on September 2, 1980, plaintiff was advised for the first time, by his newly retained counsel, that the advice given to him by Lasky and Shulman, acting on behalf of the law firm of Spivack & Lasky, was grossly and wantonly negligent due to the provisions of section 5i; and that as a result of this negligent advice, plaintiff sought compensatory and punitive damages.

Subsequently, on February 9, 1981, plaintiff's newly retained counsel succeeded in having the tax deficiency suit dismissed against plaintiff and his wife, with prejudice.

Defendants' motion to strike the verified complaint on the grounds that it, inter alia, admitted that plaintiff would and did move to Florida to avoid service of process, was allowed on March 26, 1982. The trial court further granted plaintiff leave to file an amended complaint.

Plaintiff's unverified amended complaint, filed on May 14, 1982, alleged that defendants had advised plaintiff to establish his legal residence in a State other than Illinois, for a "short period of time," as the possibility of resolving the alleged tax claims would be enhanced if, during the negotiation period, plaintiff was not served with process.

Defendants moved to dismiss the amended complaint, contending that the plaintiff was bound by the admissions of his prior verified complaint. Further, at the hearing on the motion to dismiss, plaintiff sought to amend paragraph six of his amended complaint by adding a statement that any admissions contained in paragraph five of the verified complaint "were made by mistake or inadvertence."

Although the trial court indicated that plaintiff's motion to amend was untimely, its final order dismissed the amended complaint "as further amended," holding that the additional allegations of mistake and inadvertence were conclusionary, and therefore did not supersede plaintiff's prior admissions in his verified complaint.

Plaintiff appeals from the trial court's order granting defendants' Shulman, Goldman and Spivack, Shulman and Goldman's motion to dismiss.

OPINION

Plaintiff contends that the trial court erred in dismissing his amended unverified complaint for alleged legal malpractice when it ruled that (1) plaintiff was bound by an admission contained in his original verified complaint, and (2) this admission by plaintiff ...


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