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06/30/95 JUDITH OGLE v. WILLIAM HOTTO

June 30, 1995

JUDITH OGLE, PLAINTIFF-APPELLANT,
v.
WILLIAM HOTTO, DOUGLAS DUSEK, AND HOTTO AND DUSEK, A PARTNERSHIP, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of St. Clair County. No. 91-L-576. Honorable Patrick J. Fleming, Judge, presiding.

The Honorable Justice McLAUGHLIN delivered the opinion of the court: Rarick, J., and Lewis, J., concur.

The opinion of the court was delivered by: Mclaughlin

JUSTICE McLAUGHLIN delivered the opinion of the court:

This is an appeal from an adverse judgment entered against plaintiff, Judith Ogle, based upon the dismissal of her four-count complaint for having been filed outside of the applicable period of limitation. We reverse in part and affirm in part.

The relevant pleading is the second amended complaint. (The original complaint was filed May 15, 1991.) The second amended complaint was filed in four counts.

Count I alleged the negligence of defendants William Hotto ("Hotto") and Hotto & Dusek ("partnership") in the legal representation of plaintiff in a dissolution-of-marriage case. Count I further alleged that the negligence of these defendants "first became known to Plaintiff on or after June 15, 1987."

Count III, the alternative to count I, alleged a breach of contract by Hotto and the partnership arising out of the same operative facts alleged in count I but did not allege the date when plaintiff became aware of the "breach."

Count II of the second amended complaint alleged the negligence of defendants Hotto, Douglas Dusek ("Dusek"), and the partnership in failing to file a brief in this court concerning a certain cross-appeal filed by plaintiff. Like count I, count II alleged that the negligence of defendants "first became known to plaintiff on or after June 15, 1987."

Count IV, the alternative to count II, alleged a breach of contract by Hotto, Dusek, and the partnership arising out of the same operative facts alleged in count II but did not allege when plaintiff became aware of the "breach."

Defendants, plaintiff's former attorneys, filed their joint motion to dismiss and sought dismissal of all four counts "with prejudice." The motion first alleged that counts I and II (which sounded in negligence) were improper in that an action against an attorney may not be brought in tort, only contract. (This was thereafter abandoned in light of the supreme court's holding in Collins v. Reynard (1992), 154 Ill. 2d 48, 607 N.E.2d 1185, 180 Ill. Dec. 672.) The motion also alleged that the date of defendants' alleged malpractice was not alleged in the complaint and that defendants were therefore unable to determine whether they had a basis to assert a limitations defense. The motion continued, with respect to counts I and II, by alleging additional affirmative matter: (1) that the date of the dissolution judgment was March 3, 1984, amended, April 3, 1985; (2) that the limitations period began to run on those dates and expired no later than April 3, 1990; and (3) that plaintiff was aware of the malpractice when her attorney wrote to defendants on November 21, 1988 (which letter was attached to the motion).

Defendants' motion, with respect to counts III and IV, alleged that the attachments to the complaint (exhibit A) were not written contracts and that the date of the alleged breach was not pleaded, which precluded any assessment of a limitations defense, and the motion concluded with the identical allegations made with respect to counts I and II in (1), (2), and (3) above.

Defendants' motion to dismiss did not state whether it was being made pursuant to section 2-615 or section 2-619 of the Code of Civil Procedure ("Code")(735 ILCS 5/2-615, 2-619 (West 1992)). No affidavits were attached to the motion, and it was not verified. It was thereafter argued on the merits without any objection by plaintiff as to form.

The trial court dismissed all four counts of plaintiff's complaint. No written reasons were given by the trial court, except to specify that the motion to dismiss was "allowed -- statute of limitations."

Plaintiff did not seek leave to amend her complaint after the motion to dismiss was filed, filing only authority in opposition. After the trial court dismissed plaintiff's complaint, she filed her motion to reconsider. No specific grounds were alleged in her motion; instead, plaintiff attached the following to her motion and prayed generally for reconsideration: (a) the trial transcript of the dissolution proceeding; (b) the notice of plaintiff's cross-appeal; (c) plaintiff's ex-spouse's motion to dismiss his appeal; (d) this court's order dismissing plaintiff's cross-appeal (In re Marriage of Mayberry (Dec. 20, 1985), No. 5-85-0248); (e) plaintiff's section 2-1401 motion (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401 (now 735 ILCS 5/2-1401 (West 1992))); (f) the trial court's order dismissing the section 2-1401 motion; (g) this court's order affirming the trial court's dismissal of the section 2-1401 motion ( In re Marriage of Mayberry (1991), 217 Ill. App. 3d 1113, 626 N.E.2d 793 (unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23))); (h) plaintiff's petition for leave to appeal to the supreme court; and (i) the supreme court's denial of said petition for leave to appeal ( Ogle v. Mayberry (1991), 142 Ill. 2d 655, 584 N.E.2d 131).

The facts revealed by the pleadings and the attachments to plaintiff's motion to reconsider follow.

Prior to November 30, 1984, plaintiff retained defendant Hotto to represent her in a dissolution-of-marriage proceeding. (Parenthetically, neither the pleadings nor the transcript reveals the nature of Dusek's obligations to plaintiff, aside from the general allegation that plaintiff retained "the defendants" to represent her.

On November 30, 1984, the dissolution case was tried to the court. A contentious issue therein was the valuation of the stock of a closely held corporation. Hotto did not present any expert testimony on plaintiff's behalf concerning the valuation of that stock. Thereafter, on April 3, 1985, the trial court in the dissolution proceeding entered an amended final judgment, which, in part, established a value of the corporate stock. Plaintiff's ex-spouse appealed that judgment. Plaintiff filed her cross-appeal urging error in the valuation of the corporate stock.

On the motion of plaintiff's ex-spouse, his appeal was dismissed by this court on December 20, 1985. In the same order, this court dismissed plaintiff's cross-appeal for the reason that plaintiff had failed to brief any of the issues she raised in her cross-appeal.

Pursuant to section 2-1401 of the Code of Civil Procedure, Hotto, on February 26, 1986, filed, on plaintiff's behalf, a "petition to vacate" the prior judgment entered on April 3, 1985. Said "petition to vacate" was predicated upon the fact that plaintiff's ex-spouse had made "false representations" at the initial trial. On November 15, 1988, plaintiff's petition to vacate was denied. As previously described, such denial was affirmed by this court on August 23, 1991. In re Marriage of Mayberry (1991), 217 Ill. App. 3d 1113, 626 N.E.2d 793 (unpublished order pursuant to Supreme Court Rule 23).

On June 3, 1987, Hotto had prepared, and executed, a document entitled "notice of attorney lien," which was captioned in the dissolution case and was directed to plaintiff and her ex-spouse. Said "notice of lien" stated that pursuant to "paragraph 14 of chapter 13 of the Revised Statutes of Illinois" Hotto claimed a lien against liquidated and unliquidated funds in the amount of $10,159.26. (The record does not disclose whether this notice of lien was ever filed of record in the instant case.) Attached to the notice of attorney's lien was a document, dated June 4, 1987, in which plaintiff acknowledges that she was indebted to Hotto and the partnership in the sum of $10,159.26 for attorney fees and that the fees were reasonable.

On June 10, 1987, defendants withdrew as attorneys of record for plaintiff, and at the same time, her current counsel entered his appearance and on November 21, 1988, advised defendants, by letter, that he had advised plaintiff ...


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