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12/30/87 David L. Petrowsky Et Al., v. Family Service of Decatur

December 30, 1987





518 N.E.2d 664, 165 Ill. App. 3d 32, 116 Ill. Dec. 42 1987.IL.1944

Appeal from the Circuit Court of Macon County; the Hon. Art Powers, Jr., Judge, presiding.


JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH and SPITZ, JJ., concur.


In the circuit court of Macon County, plaintiffs David and Martha Petrowsky filed a complaint against defendant Family Service of Decatur, Inc., and three of its employees, alleging negligence and breach of an adoption agreement. The circuit court dismissed the case on the pleadings and plaintiffs appeal as to original count I and their second-amended complaint.

Plaintiffs entered into an adoption agreement prepared by defendant, a private child welfare and adoption agency, whereby plaintiffs obtained custody of Tracy Lee Barry, now known as Robert Patrick Petrowsky. The adoption was interrupted because the child's natural mother changed her original story regarding the child's biological father and her former husband recanted his prior denial of paternity. It appears plaintiffs were ultimately successful in the adoption, but their lawsuit complains as to the handling of the adoption by defendants. The original complaint contained three counts. Count I alleged negligence causing property damage, count II alleged negligence causing personal injury and count III alleged breach of contract by the corporate defendant. The original

On defendants' motion, the court dismissed original counts I and II for failure to state a cause of action. Plaintiffs were granted leave to amend count III, which was dismissed because it alleged negligence while purporting to be a count for breach of contract.

Defendants' amended complaint did not contain a negligence count, nor did it refer to or incorporate any part of the original complaint. Count I charged the corporate defendant with breach of an implied contractual obligation to exercise reasonable care and skill in performing its obligations under the adoption agreement. Count II sought damages for mental suffering which ensued from the alleged breach of contract. Count III charged all defendants with reckless infliction of severe emotional

Upon the court's leave, plaintiffs filed a second-amended complaint. Counts I through II were virtually identical to those in the first-amended complaint, and again, the pleadings were not verified. On defendants' motion, the circuit court dismissed plaintiffs' second-amended complaint with prejudice.

The circuit court dismissed count I of the original complaint, which alleged defendants negligently handled the parties' adoption agreement, and based its ruling entirely on Martino v. Family Service Agency (1982), 112 Ill. App. 3d 593, 445 N.E.2d 6. In Martino, plaintiff sued the defendant social worker in negligence for professional misconduct. Defendant seduced a patient and disclosed confidences while acting as a marriage counselor and therapist. The Martino court refused to recognize the tort of social worker malpractice. In a later case, Horak v. Biris (1985), 130 Ill. App. 3d 140, 474 N.E.2d 13, the court found the defendant social worker guilty of social worker malpractice on facts similar to those in Martino. However, unlike Mrs. Martino, the plaintiff in Horak alleged the defendant negligently mishandled various psychological principles. Horak distinguished the Martino decision to that extent.

The plaintiffs here do not allege social worker malpractice. Rather, this case involves an adoption agency's alleged shoddy investigation and paper work. The areas of social work and adoption are governed by separate statutes and standards in Illinois. Even though the circuit court misapplied Martino to an adoption agency scenario, we agree with the ultimate Conclusion below and find no precedent or policy compelling us to recognize the tort of adoption agency malpractice.

It is unnecessary to belabor the merits because any error in dismissal of the original complaint has been waived. The well-established principle of waiver provides that a party filing an amended complaint which does not refer to or adopt the earlier pleading waives any objection to the trial court's dismissal of the original complaint. (Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 449 N.E.2d 125.) This principle applies to unverified pleadings (Stemm v. Rupel (1975), 30 Ill. App. 3d 864, 332 N.E.2d 686), and the waiver principle applies whether or not the dismissal was "with prejudice." (Foxcroft, 96 Ill. 2d 150, 449 N.E.2d 125; Kievman v. Edward Hospital (1984), 122 Ill. App. 3d 187, 460 N.E.2d 901; Kincaid v. Parks Corp. (1985), 132 Ill. App. 3d 417, 477 N.E.2d 68.) A dismissal is the equivalent of an adjudication on the merits and need not contain the words "with prejudice." Kincaid, 132 Ill. App. 3d 417, 477 N.E.2d 68.

In applying these pleading rules, we note that although original count I alleged defendants' negligence, neither plaintiffs' first nor second-amended complaints contained or referred to a negligence count. Furthermore, the pleadings were not verified and the circuit court's dismissal was effectively with prejudice. Accordingly, the allegations asserted in original count I, but not incorporated in the final amended complaint, are considered waived. The circuit court dismissed original count I, and plaintiffs have waived their objection.

Plaintiffs further argue the circuit court erroneously dismissed count I of their second-amended complaint, which alleged the corporate defendant breached an implied duty of ...

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