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03/17/95 KAZIMIR IGNARSKI v. ALEX S. NORBUT

March 17, 1995

KAZIMIR IGNARSKI, EXECUTOR OF THE ESTATE OF CHARLES N. IGNARSKI, PLAINTIFF-APPELLANT,
v.
ALEX S. NORBUT, INDIVIDUALLY AND NORBUT & ASSOCIATES, LTD., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Kathy M. Flanagan, Judge Presiding.

Released for Publication April 13, 1995.

The Honorable Justice Rakowski delivered the opinion of the court: McNAMARA, P.j., and Zwick, J., concur.

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

Kazimir Ignarski (plaintiff), executor of the estate of Charles N. Ignarski (Charles), filed a single count legal malpractice complaint against Alex S. Norbut and Norbut & Associates, Ltd. (defendants), alleging that Charles' personal injury action was dismissed because defendants failed to name the proper party within the applicable two year limitation period. The trial court granted defendants' motion for summary judgment holding that plaintiff's second amended complaint failed to allege that but for the attorney's negligence, plaintiff would have prevailed in the underlying action.

On appeal, the plaintiff raises the following issues: (1) whether the trial court erred in holding that the complaint failed to allege all the elements of the underlying personal injury action; (2) whether the defendants should be equitably estopped from denying that plaintiff could ever plead the underlying personal injury action because [a] Norbut had previously stated that plaintiff did have a meritorious cause of action, and [b] because it was a result of Norbut's negligence that the underlying cause of action was dismissed; and (3) whether the trial court erred in denying plaintiff's motion to file a third amended complaint.

We affirm.

On December 6, 1983, Charles was injured when two youths attacked him and took his wallet as he was leaving a Kentucky Fried Chicken restaurant. The following day Charles retained defendants. On the two year anniversary date, in the belief that John Heublin owned the restaurant, defendants filed suit against Heublin and caused summons to issue. The summons was returned "Not Found" and over a year later, on December 30, 1986, defendants withdrew as counsel and turned the file over to Charles. Subsequently, another law firm filed a first amended complaint naming "KFC National Management Company" (KFC). This action was later dismissed because it was not filed within the two year limitation period. Charles died on January 29, 1988.

The instant legal malpractice action was filed on December 7, 1989. On March 13, 1990, defendants filed a motion to dismiss pursuant to Section 2-615 (Ill. Rev. Stat. 1989, ch. 110, par. 2-615 (now 735 ILCS 5/2-615 (West 1992)) which stated the complaint did not state a cause of action for legal malpractice because it did not properly allege that but for the attorney's negligence, the plaintiff would have prevailed in the underlying action. According to defendants, the complaint did not state ultimate facts as to why KFC owed plaintiff a duty to protect him from the criminal acts of third parties. The trial court granted the motion, but allowed plaintiff leave to file a first amended complaint. This complaint was likewise stricken and again the trial court allowed plaintiff leave to amend.

Plaintiff filed a second amended complaint on April 29, 1991. On November 18, 1992, defendants moved for summary judgment (Ill. Rev. Stat. 1991, ch. 110, par. 2-1005 (now 735 ILCS 5/2-1005 (West 1992)) based on plaintiff's inability to plead ultimate facts establishing why KFC had a duty to protect the plaintiff from criminal acts of third parties. The parties briefed the issue and after oral argument the court granted defendants' motion and denied plaintiff's oral motion to file a third amended complaint.

I

Summary judgment should be granted if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ( Carruthers v. Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457.) It should never be granted unless the right of the movant is free from doubt. ( Murphy v. Urso (1981), 88 Ill. 2d 444, 464, 430 N.E.2d 1079, 58 Ill. Dec. 828.) If the affidavits and other materials disclose a dispute as to any material issue of fact, summary judgment must be denied even if the court believes the movant will or should prevail at trial. Summary judgment procedure is not designed to try an issue of fact, but rather to determine if one exists. ( Ray v. Chicago (1960), 19 Ill. 2d 593, 599, 169 N.E.2d 73.) In considering a motion for summary judgment, the court must strictly construe all things filed in support of the motion while liberally construing all things filed in opposition thereto. ( Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398, 415 N.E.2d 397, 47 Ill. Dec. 392.) If fair minded persons could draw different inferences from the evidence, the issues should be submitted to a jury to determine what conclusion seems most reasonable. ( Silberstein v. Peoria Town and Country Bowl, Inc. (1970), 120 Ill. App. 2d 290, 293-94, 257 N.E.2d 12.) Finally, although the plaintiff need not prove his case at the summary judgment stage, he may be required to present some evidence which demonstrates the existence of a triable and genuine issue of fact. Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 1058, 473 N.E.2d 444, 85 Ill. Dec. 76.

The elements of a legal malpractice claim are: (1) the existence of an attorney client relationship which establishes a duty on the part of the attorney; (2) a negligent act or omission constituting a breach of that duty; (3) proximate cause establishing that "but for" the attorneys negligence, the plaintiff would have prevailed in the underlying action; and (4) damages. ( Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96, 64 Ill. Dec. 544; Sheppard v. Krol (1991), 218 Ill. App. 3d 254, 578 N.E.2d 212, 161 Ill. Dec. 85; Claire Associates v. Pontikes (1986), 151 Ill. App. 3d 116, 502 N.E.2d 1186, 104 Ill. Dec. 526.) Because legal malpractice claims must be predicated upon an unfavorable result in the underlying suit, no malpractice exists unless counsel's negligence has resulted in the loss of the underlying action. ( Claire Associates, 151 Ill. App. 3d at 122.) Plaintiff is required to establish that but for the negligence of counsel, he would have successfully prosecuted or defended against the claim in the underlying suit. ( Sheppard, 218 Ill. App. 3d at 257; Claire Associates, 151 Ill. App. 3d at 122.) Damages will not be presumed, and the client bears the burden of proving he suffered a loss as a result of the attorney's alleged negligence. Sheppard, 218 Ill. App. 3d at 257; Claire Associates, 151 Ill. App. 3d at 122.

As a result of the foregoing, the plaintiff at bar was required to plead a case within a case. In particular, he was required to plead ultimate facts establishing why KFC had a duty to protect him from the criminal acts of third parties. The sole allegation in the second amended complaint concerning this duty reads as follows:

"5. That on the day of the occurrence and for a long time prior thereto, National knew by reason of prior incidents occurring on said premises that its business invitees were subject to attacks by third persons frequenting the said premises."

Illinois law regarding a land owner's or occupier's liability for criminal acts of third parties is consistent and well established. In Rodgers v. Hook-Super X, Inc. (1990), 204 Ill. App. 3d 861, 863, 562 N.E.2d 358, 149 Ill. Dec. 894, the court stated:

"There can be no liability in court for negligence unless the defendant has breached a duty owed to the plaintiff. [Citation omitted.] Generally there is no duty to protect another against criminal acts of third persons. However, an owner or occupier of land in Illinois owes a duty to invitees on his premises to reasonably guard against ...


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