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05/16/88 Jacky Wayne Gray, v. Hillary Hallett

May 16, 1988





525 N.E.2d 89, 170 Ill. App. 3d 660, 121 Ill. Dec. 283 1988.IL.749

Appeal from the Circuit Court of Madison County; the Hon. Joseph L. Fribley, Judge, presiding.


JUSTICE KARNS delivered the opinion of the court. HARRISON, P.J., and WELCH, J., concur.


Plaintiff Jacky Wayne Gray brought this action against Hillary Hallett in the circuit court of Madison County. The complaint charged Hallett with legal malpractice in the prosecution of his claim against Westlake Quarry Company. Specifically, the complaint alleged that Hallett was negligent in failing to obtain service of process over Westlake before the statute of limitations ran. After a trial by jury, a verdict was rendered in favor of Gray in the amount of $450,000 and the trial court entered judgment thereon.

On January 27, 1973, Jacky Wayne Gray was injured while working for Westlake Quarry Company on the motor vessel Catherine Cruise. Gray went to Hallett's office in May of 1973 and retained Hallett to represent him in his suit against Westlake. Hallett was suspended from the practice of law in Illinois from November 27, 1974, until March 7, 1976, during which time two of Hallett's partners, Hugh Talbert and Keith Fitzgerald, continued to represent Gray. A complaint was filed against Westlake in the circuit court of Madison County on December 8, 1975. The complaint, which alleged violation of the Jones Act (46 U.S.C. § 688 (1982)), was filed 52 days prior to the running of the three-year statute of limitations applicable to Jones Act cases (45 U.S.C. § 56) (1982)).

The evidence establishes that Keith Fitzgerald requested a summons which was issued on December 9, 1975. On January 27, 1976, Talbert and Fitzgerald requested an alias summons be issued. After being reinstated to practice law, Hallett requested another alias summons which was ultimately served on Billy Moore, master of the motor vessel John K., on June 19, 1976. Talbert and Reeves, another associate of Hallett's, requested another alias summons on February 8, 1977. Such summons was issued on April 26, 1977, and served on Billy Graham, master of the motor vessel K.C.

On October 21, 1977, Westlake moved to quash the service of June 19, 1976, as Westlake did not own the John K. nor did it employ Billy Moore. The motion was granted and service quashed on December 2, 1977. Between December 6, 1977, and December 18, 1978, Hallett requested four more alias summonses, none of which were served. On December 19, 1978, the Madison County sheriff's office filed a memorandum indicating that Westlake boats did not come through the area locks. Hallett requested another summons on January 12, 1979, and filed a motion to appoint a special process server. This process server was unable to obtain service. On August 30, 1979, Hallett again requested a summons and special process server and service was finally obtained on September 26, 1979.

Westlake moved to dismiss the suit for failure to use due diligence in obtaining service of process. On March 7, 1980, Judge Barr entered an order dismissing the case "without prejudice."

Gray filed the present action on September 24, 1981, alleging that as a result of Hallett's negligence in obtaining service on Westlake prior to the running of the statute of limitations, he was permanently foreclosed from recovering damages from Westlake. Hallett moved for summary judgment, arguing that a viable cause of action still remained after March 7, 1980, but this motion was denied. He also moved for a directed verdict at the close of plaintiff's case and at the Conclusion of all the evidence, arguing that plaintiff failed to introduce any expert testimony on the issue of negligence. These motions were also denied. The jury returned a verdict against Hallett in the amount of $450,000.

Hallett argues that the trial court erred in denying his motion for a directed verdict because Gray failed to introduce expert testimony on the question of negligence. At issue is whether Hallett's conduct falls within the "common knowledge" exception to the rule that expert testimony is generally required to establish a claim of legal malpractice.

An attorney is liable to his client for damages when he fails to exercise the reasonable degree of care and skill expected from members of the legal profession. The law draws a distinction, however, between negligence and errors in judgment. (Brainerd v. Kates (1979), 68 Ill. App. 3d 781, 386 N.E.2d 586.) As a general rule, expert testimony is required to establish the standard of care; but where the attorney's negligence is so grossly apparent that a layman would have no difficulty in recognizing it, expert testimony is not required. House v. Maddox (1977), 46 Ill. App. 3d 68, 360 N.E.2d 580.

In the present case, Hallett maintains that service of process was an act requiring the use of legal judgment and that expert testimony was therefore required to establish the requisite standard of care. Gray argues that failure to obtain service of process is so obviously ...

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