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04/21/88 James Dunavan, v. Frank S. Calandrino Et Al.

April 21, 1988

JAMES DUNAVAN, PLAINTIFF-APPELLANT

v.

FRANK S. CALANDRINO ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

522 N.E.2d 347, 167 Ill. App. 3d 952, 118 Ill. Dec. 892 1988.IL.582

Appeal from the Circuit Court of Fayette County; the Hon. Richard G. Hodson, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. HARRISON, P.J., and CALVO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

Plaintiff, James Dunavan, filed a two-count complaint in the circuit court of Fayette County on July 13, 1984, alleging that his former attorneys, Frank S. Calandrino, J. Jay Robeson, and Michael J. Logan, the defendants herein, had negligently represented him in the prosecution of personal injury and workmen's compensation claims against Langston Enterprises, Inc., and the State of Illinois. On August 31, 1984, plaintiff sought leave to file an amended complaint. Leave was granted on September 12, 1984, and plaintiff filed his first amended complaint.

In response, defendants filed two motions to dismiss. Of these motions, the only one of consequence in this appeal was filed on March 15, 1985, and challenged plaintiff's complaint for failure to state a cause of action. On April 11, 1985, the circuit court dismissed plaintiff's first amended complaint pursuant to defendants' motion. The court granted plaintiff leave to file an amended complaint within 28 days.

On May 9, 1985, plaintiff filed his second amended complaint in four counts. Count I (breach of contract) and count II (negligence) arose out of the prosecution of the negligence claim against Langston Enterprises, Inc. Count III (breach of contract) and count IV (negligence) arose out of the workmen's compensation claim against the State of Illinois. Defendants again moved to dismiss. The motion was granted on May 31, 1985. Plaintiff was given 28 days to file an amended complaint.

Plaintiff filed his third amended complaint on July 1, 1985. Once again, defendants moved to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), claiming that the complaint was insufficient in all counts to state a cause of action. Defendants requested that the court enter an order dismissing each of the counts of the third amended complaint, that judgment be entered in their favor, and that they be awarded their costs.

The court, on September 20, 1985, having reviewed the briefs submitted by the parties and having heard their arguments, found that counts I and II of the third amended complaint would, if proven, fail to show that

On March 31, 1986, six months after counts I and II had been dismissed, plaintiff filed a motion for leave to file a fourth amended complaint. Plaintiff's motion was denied on June 10, 1986.

Plaintiff then filed a motion for voluntary dismissal on June 23, 1986. On July 1, 1986, defendants filed a motion for "final order of judgment" as to counts I and II of plaintiff's third amended complaint. These motions came before the court for hearing on July 31, 1986.

The court heard arguments and a docket entry dated July 31, 1986, reflects the court's findings. The court found that

"in order for something to be dismissed, however absolute the [right] may be, it has to exist. By virtue of final Disposition earlier . . . [counts] I & II long ago were dismissed and that part of this litigation terminated. Such [counts] do not now exist for [section] 2 -- 1009 [of the Code of Civil Procedure] to apply to, and as a matter of entering a written Final Judgment on what the court has previously acted uponFinal Order of [Judgment] as to [counts] I & II is now entered & filed; [plaintiff's] Voluntary Dismissal pursuant to 2 -- 1009 allowed as to [counts] III & IV."

A final order of judgment as to counts I and II was entered on July 31, 1986. The court found as follows:

"1. That Counts I and II of the Plaintiff's Third Amended Complaint are defective and insufficient in law because they fail to show that the actions, inactions or negligence of the Defendants was [ sic ] the proximate cause of the Plaintiff's alleged loss or damage and that the Plaintiff would have prevailed in his claim against Langston Enterprises, Inc.;

2. That the Plaintiff's proposed Fourth Amended Complaint amending Counts I and II of the Plaintiff's Third Amended Complaint are [ sic ] insufficient in law because they fail to set forth sufficient allegations which, if proven, show that the actions, inactions or negligence of the Defendants was [ sic ] the proximate cause of the Plaintiff's alleged loss or damage and that the Plaintiff would have prevailed in his claim against Langston Enterprises, Inc."

On August 25, 1986, plaintiff filed a motion to reconsider and a memorandum in support thereof. Defendants filed a response on November 12, 1986. A docket entry reflects that plaintiff's motion to reconsider was denied on January 16, ...


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