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01/03/94 LOU IRENE BROOKS v. EDWARD F. BRENNAN

January 3, 1994

LOU IRENE BROOKS, PLAINTIFF-APPELLANT,
v.
EDWARD F. BRENNAN, JR., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County. No. 86-L-700. Honorable Nicholas G. Byron, Judge Presiding.

Lewis, Rarick, Goldenhersh

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

Plaintiff, Lou Irene Brooks, appeals from the trial court's entry of summary judgment in favor of defendant, attorney Edward F. Brennan, Jr., on counts one, two, and three of plaintiff's fourth amended complaint alleging legal malpractice against defendant, who had been plaintiff's attorney in a Federal Employers' Liability Act (FELA) case. Plaintiff's fourth amended complaint included a fourth count, but that count was dismissed by the trial court, and plaintiff does not appeal that dismissal. Although the parties frame the issues differently, we believe that the central issue of this appeal is whether all of the pleadings, depositions, admissions, and affidavits of record show that there is no genuine issue of material fact, so that defendant was entitled to judgment as a matter of law. ( Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 508 N.E.2d 1201.) For reasons we will more fully explain, we affirm the trial court's entry of summary judgment in favor of defendant.

Before reviewing the facts of this case, we must briefly set forth the law as it pertains to review of summary judgments. It is clearly established that summary judgment should be entered only in those cases in which there is no genuine issue of material fact and where the court can enter judgment as a matter of law. ( Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 586 N.E.2d 1211.) When a defendant files a motion for summary judgment, as in this case, the plaintiff must then come forward with evidence to support each and every element of its causes of action in order to avoid summary judgment. ( Webber v. Armstrong World Industries, Inc. (1992), 235 Ill. App. 3d 790, 601 N.E.2d 286.) As the court of review, we are required to determine whether the trial court correctly entered summary judgment by reviewing the facts of this case in the light most favorable to plaintiff, the party opposing the motion for summary judgment. Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 508 N.E.2d 1201.

Plaintiff filed her complaint against defendant in July 1986, alleging that she had been damaged by defendant's negligent handling of her FELA case against Missouri-Pacific Railroad Company (the Railroad). Throughout the lower court proceedings, plaintiff has alleged that defendant was negligent in two basic ways. First, plaintiff alleges that she was damaged because defendant failed to file a FELA claim on her behalf until after the statute of limitations had run out for an incident occurring on June 25, 1973. Second, plaintiff claims that she was damaged by defendant's failure to inform her, prior to a settlement conference in which she settled the case involving an accident on June 27, 1973, that a condition of the settlement was that she must resign her employment with the Railroad.

The evidence of record below, taken in the light most favorable to plaintiff, is as follows: Defendant filed the complaint against the Railroad on December 9, 1974, alleging only the June 27 incident and not the June 25 incident. The complaint was signed only by defendant. Plaintiff claimed that she was not given a copy of the complaint and did not know until the day of trial, in 1980, that the complaint did not allege the June 25 incident.

After her accidents in 1973, plaintiff worked a little between 1973 to 1976 but left permanently in 1976, because she felt that she "just couldn't cope." Plaintiff did not work at any type of employment after 1976. In 1977 or 1978, plaintiff filed her claim for disability benefits with the railroad retirement board.

The trial of the case against the Railroad was scheduled for April 7, 1980. On that date, another attorney from defendant's law firm, John P. Kujawski, was handling the case. (We note that defendant does not argue on appeal that Kujawski was not acting as an agent of defendant or their mutual law firm. Therefore, we will at times in this opinion refer to defendant, when such references actually refer to the actions of Kujawski.) On April 7, 1980, Kujawski filed a motion to amend the complaint, proposing to add a second count to allege the June 25, 1973, incident. The trial court denied the motion to amend due to the statute of limitations of three years for filing a FELA claim expiring. Thus, plaintiff had only until June 1976 to file her claim for the June 25, 1973, accident.

Before the case came to trial, Kujawski entered into settlement negotiations with John Gunn, the attorney for the Railroad. Gunn had previously offered plaintiff $15,000 to settle the case, but plaintiff had refused this offer. After negotiations with Gunn and conferences with plaintiff, Kujawski informed plaintiff of the Railroad's offer of $37,500. Plaintiff claims she refused this offer, feeling that she should get "at least $100,000 if not more," because she felt at that time that she would never be able to go back to work. Kujawski told her he would not take the case to a jury trial because the evidence was too weak, and that plaintiff would have to hire another attorney if she wanted a trial. Plaintiff claims that Kujawski told her that as long as they were at the courthouse, they ought to "go in and talk to him." Plaintiff thought she was going in to talk to Gunn, but she ended up in the courtroom instead, where the parties put the settlement on the record.

At the settlement conference, plaintiff stated that she understood that she was settling the case for $37,500 and that the Railroad was agreeing to contribute to her pension fund so that plaintiff would qualify for a railroad disability pension. Plaintiff stated that she understood that the final decision about whether she could receive a disability pension was up to the railroad retirement board. Nothing was said directly about plaintiff having to resign her employment as a condition of the settlement. Plaintiff stated that she agreed to settle the case under these conditions.

After the hearing, plaintiff claims that Kujawski told her, for the first time, that the Railroad might want her to give up her job. About two weeks after the hearing, plaintiff went to defendant's office. She was given a copy of the release, which she would have to sign before the Railroad would issue the settlement check. She refused to sign the release, because it contained a clause requiring her to give up all of her employment rights with the Railroad as consideration for the settlement.

In the months following the settlement conference, plaintiff conferred with several attorneys. During this period, according to plaintiff, Kujawski "insisted" that plaintiff sign the release and settle the case. Kujawski finally wrote a letter to Gunn stating that Gunn should consider filing a motion to compel plaintiff to sign the release and settle the case. At some point in time, plaintiff fired defendant's law firm and retained attorney Michael Katz to represent her. On October 14, 1981, Katz filed a motion to enforce the $37,500 settlement with the Railroad, alleging that the parties had not agreed that plaintiff had to resign from her employment as a condition of the settlement, but that the Railroad had refused to pay plaintiff unless she gave up her employment rights. The trial court denied plaintiff's motion to enforce the settlement. Plaintiff did not appeal this decision.

On January 21, 1982, Gunn sent a letter to Katz indicating that the Railroad had agreed to settle the case for plaintiff's settlement demand of $38,500 ($1,000 more than offered on April 7, 1980, during defendant's representation ...


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