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May 23, 1997



Rehearing Denied July 1, 1997. Released for Publication July 21, 1997.

The Honorable Justice Hoffman delivered the opinion of the court. Cahill and O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, using the pseudonym Jane Doe, filed suit against the defendant and his law firm, under the respective pseudonyms of John Roe and Roe & Roe, claiming that John Roe (hereinafter defendant) coerced her into a sexual relationship with him while he represented her in an action for dissolution of marriage. The circuit court dismissed the plaintiff's action for failure to state a claim on which relief could be granted (735 ILCS 5/2-615 (West 1994)). The plaintiff now appeals from that dismissal, and from the denial of her petition for sanctions under Supreme Court Rule 137. 134 Ill. 2d R. 137. The defendant cross-appeals from the denial of his petition for Rule 137 sanctions.

The plaintiff's first-amended complaint charged the defendant and his law firm with breach of fiduciary duty, intentional infliction of emotional distress, negligent infliction of emotional distress, and fraud. The court dismissed that complaint under Code of Civil Procedure section 2-615 (735 ILCS 5/2-615 (West 1994)), but instructed the plaintiff to replead her claim for breach of fiduciary duty. The plaintiff's second-amended complaint was stricken by agreement of the parties. Her third-amended complaint, pled in two counts, sought recovery against the defendant on a breach of fiduciary duty theory, and against his law firm based on respondeat superior. The court then dismissed the third-amended complaint under section 2-615, and this appeal followed.

Initially, we address the plaintiff's contentions that the court erred in dismissing her claims for intentional infliction of emotional distress, negligent infliction of emotional distress, and fraud as set forth in her first-amended complaint.

A party who files an amended complaint waives any objection to the court's ruling on prior complaints. Boatmen's National Bank v. Direct Lines, Inc., 167 Ill. 2d 88, 99, 656 N.E.2d 1101, 212 Ill. Dec. 267 (1995); Foxcroft Townhome Owners Association v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153, 449 N.E.2d 125, 70 Ill. Dec. 251 (1983). An amended complaint must reallege, incorporate by reference, or at least refer to the claims and supporting facts set forth in a prior complaint in order to preserve for review the question of the propriety of the court's rulings in relation to the prior complaint. See Tabora v. Gottlieb Memorial Hospital, 279 Ill. App. 3d 108, 113-14, 664 N.E.2d 267, 215 Ill. Dec. 870 (1996). The supreme court has rigidly enforced this rule, twice rejecting the notion that dismissed claims that are not reasserted may, nonetheless, be reviewed where the plaintiff did not manifest an intention to abandon those claims. See Boatmen's, 167 Ill. 2d at 100; Foxcroft, 96 Ill. 2d at 153. It makes no difference that the plaintiff clearly expressed a desire not to abandon the claims, or that the trial court mistakenly assured the plaintiff that prior claims would be preserved even though they were not realleged. See Boatmen's, 167 Ill. 2d at 100; see also Tabora, 279 Ill. App. 3d at 114. A party desiring to preserve for review the dismissal of claims contained in a former complaint has only two choices: she may either stand on the dismissed counts and challenge the ruling at the appellate level prior to filing an amended complaint, or reallege the dismissed counts in subsequent complaints. Du Page Aviation Corp., Flight Services, Inc. v. Du Page Airport Authority, 229 Ill. App. 3d 793, 800, 594 N.E.2d 1334, 171 Ill. Dec. 814 (1992).

In this case, the plaintiff's third-amended complaint never realleged, incorporated, or referred to the claims for intentional infliction of emotional distress, negligent infliction of emotional distress, or fraud set forth in her first-amended complaint. In an apparent attempt to preserve these counts, the plaintiff obtained an order from the trial judge that the claims in the second-amended complaint would be treated as repleaded for purposes of appeal. We note initially that the second-amended complaint, like the third-amended complaint, contained only a breach of fiduciary duty claim; but in any event, the court's order purporting to treat the second-amended complaint as repleaded was without legal effect. Boatmen's, 167 Ill. 2d at 100. We are constrained to treat as waived all issues relating to the dismissal of any claims other than that for breach of fiduciary duty as set forth in the third-amended complaint. For the same reasons, the plaintiff has waived her contention that the court erred in striking her request for punitive damages, which was never reasserted after the second-amended complaint.

Because the plaintiff's third-amended complaint (hereinafter "complaint") was dismissed pursuant to a section 2-615 motion, the question before this court is whether her claim for breach of fiduciary duty set forth a cause of action upon which relief could be granted. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 565 N.E.2d 654, 152 Ill. Dec. 121 (1990); Janes v. First Federal Savings & Loan Association, 57 Ill. 2d 398, 312 N.E.2d 605 (1974). Since the question is one of law, our review is de novo. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 634 N.E.2d 306, 199 Ill. Dec. 467 (1994). In conducting that review, we are required to take all well-pleaded facts in the complaint as true and draw reasonable inferences from those facts which are favorable to the plaintiff. Ziemba v. Mierzwa, 142 Ill. 2d 42, 566 N.E.2d 1365, 153 Ill. Dec. 259 (1991). We are also guided by the admonition that an action should not be dismissed on the pleadings unless it is apparent that no set of facts can be proven which would entitle the plaintiff to recover. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282, 203 Ill. Dec. 463 (1994).

The factual allegations contained in the complaint relate the following scenario. The plaintiff was involved in an emotionally trying divorce that included ongoing concerns over the custody of her child. In Spring of 1983, she was introduced to the defendant, who assured her that he could represent her more effectively than the attorney she had engaged. The defendant also promised to help secure a rapid settlement of her case. Based upon these statements, the plaintiff engaged the defendant, and in July of 1983, paid him a retainer of $7,500. The defendant did not furnish the plaintiff with a written fee agreement, but orally stated that any additional legal fees would be borne by her husband, who was believed to possess substantial assets. The plaintiff alleged that she lacked significant financial resources and would not have employed or continued to employ the defendant had she known that she would be required to pay additional attorney fees.

During the course of the representation, the plaintiff discussed her emotional and sexual history with the defendant, including her anxiety over the divorce, and came to rely upon the defendant's advice on both legal and personal matters. During one of the plaintiff's initial visits to the defendant's office, the defendant began making unwanted sexual advances towards her. He persisted in fondling the plaintiff despite her attempts to resist, and told the plaintiff that this would make it "much easier" for her. The plaintiff alleged that she submitted to the defendant's sexual demands out of fear that he would discontinue or compromise his representation of her if she did not comply and because she could not afford to pay the retainer for another attorney. Thereafter, the defendant made repeated sexual demands on the plaintiff. According to the plaintiff, she continued to engage in sexual relations with the defendant because she had become very dependent upon him for legal as well as emotional support.

In May 1985, the plaintiff's former husband walked into the bedroom of the plaintiff's home while she and the defendant were engaged in sexual relations. The plaintiff's former husband became outraged, and later indicated that he would not pay any of the plaintiff's attorney fees. According to the plaintiff, after learning of this pronouncement, the defendant failed to seek payment of her attorney fees from her former husband, fearing personal embarrassment and potential professional discipline.

In June 1985, while the parties were in court awaiting a hearing, the defendant presented the plaintiff with a proposed settlement agreement, and instructed her to sign the document without apprising her of its terms. The plaintiff contended that she did so, unaware that it included provisions enabling the defendant to procure a $2,500 judgment against her for his fees and granting the defendant a lien on her home as security. On July 30, 1985, the defendant obtained the judgment against the plaintiff.

In May 1986, the plaintiff received correspondence from the defendant's firm requesting $2,500 for services rendered. The letter noted that this sum was in addition to the $4,000 she already owed, and threatened that if she did not pay the balance, she might be subjected to "some slight injury". The letter also stated that if the plaintiff did not wish to pay her bill in full, the defendant would be willing to work out "'other ways'" for payment, and would be "'in touch'" with her soon. The plaintiff interpreted the letter to mean that unless she continued her sexual relationship with the defendant, she would be subjected to additional demands for attorney fees that would be extremely difficult for her to pay. The plaintiff discussed the matter with the defendant, who insisted that she pay the fees, and told her that she actually owed him $40,000. According to the plaintiff after she agreed to continue her sexual relationship with the defendant, he executed a satisfaction and release of the $2,500 judgment.

When the plaintiff subsequently began having difficulty enforcing the terms of her dissolution judgment, the defendant agreed to represent her on the "same terms" as in the past. Based upon the defendant's failure to ask for any additional fee, the plaintiff interpreted this statement as a demand for her continuance of sexual relations. The plaintiff ...

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