June 30, 1988
COMPETITIVE FOOD SYSTEMS, INC
LASER, JULES, ETAL 1988.IL.1022 DATE FILED: JUNE 30, 1988
APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
Appeal from the Circuit Court of County of Lake, Trial Court Number: 83L789
LINDBERG, DUNN and WOODWARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG
PRESIDING JUSTICE LINDBERG delivered the opinion of the court:
Defendant's appropriately ask us to address an argument, which they raised in their brief, for affirming the trial court's grant of summary judgment of the breach of contract count. Defendants contend that the trial court's grant of summary judgment in their favor on plaintiff's breach of contract claim should be affirmed because, as a matter of law, an attorney may only be sued for a breach of duty owing to a client under legal malpractice and not contract. We do not agree.
The authority cited by defendants does not stand for their contention. Defendants' authority concerns the characterization of the underlying facts of an attorney's breach of a duty owed to a client for purposes of interpreting the application of the statute of limitations or assignability of a legal malpractice claim. See Brainard v. Brown (1983), 91 A.D.2d 287, 458 N.Y.S.2d 735 (statute of limitations governing legal malpractice applies where gravamen of suit is attorney's negligence, drawing a distinction between unspecific oral retainers and detailed contracts which outline specific duties); Christison v. Jones (1980), 83 Ill. App. 3d 334, 405 N.E.2d 8 (due to personal and confidential nature of attorney-client relationship, legal malpractice claim is nonassignable and not part of bankrupt's estate under Federal bankruptcy law); Yates v. Muir (1985), 130 Ill. App. 3d 604, 474 N.E.2d 934, rev'd on other grounds (1986), 112, Ill. 2d 205, 492 N.E.2d 1267.
Defendants concede that plaintiff has stated all the elements for a breach of contract claim. In the instant case, plaintiffs alleged a separate agreement entered over a year after initially retaining defendants as legal counsel for defendants to do the legal work involved in the offering circular. Defendants were to be paid a flat fee of $25,000 for the legal work required for the offering circular. Plaintiff is not limited, as a matter of law under these facts, to sue only under a legal malpractice theory, but may also sue under a breach of contract theory. Allen v. Komajda (1970), 130 Ill. App. 2d 1018, 266 N.E.2d 456 (basis of action in medical malpractice is tort rather than contract, but where breach of express promise by physician is alleged then action may be in contract); Board of Education v. Del Bianco & Associates, Inc. (1978), 57 Ill. App. 3d 302, 372 N.E.2d 953 (where contract of employment exists including duties to be performed in the course of employment exists including duties to be performed in the course of employment which constitute subject of the contract, breach of a duty in the course of employment may authorize recovery in tort or in contract); Cundiff v. Unsicker (1983), 118 Ill. App. 3d 268, 454 N.E.2d 1089 (where tort and contract action arise from same facts, the plaintiff is free to proceed with either theory); Brainard v. Brown (1983), 91 A.D.2d 287, 458 N.Y.S.2d 735.
Therefore, we reject defendants' argument that the trial court's grant of summary judgment on the breach of contract count should be affirmed. We find no merit in defendants' other arguments on petition for rehearing.
Petition by defendants for rehearing denied.
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