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07/07/97 ANTHONY DESENO v. ALVIN BECKER

July 7, 1997

ANTHONY DESENO, PLAINTIFF-APPELLANT,
v.
ALVIN BECKER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 96-0672. Honorable Ian H. Levin, Judge Presiding.

Released for Publication August 21, 1997.

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

The opinion of the court was delivered by: O'brien

The Honorable Justice O'BRIEN delivered the opinion of the court:

Plaintiff, Anthony DeSeno, appeals from the trial court's entry of summary judgment in favor of defendant, Alvin Becker, an Illinois attorney, on the issue of legal malpractice. We affirm.

On February 14, 1985, the Chicago police superintendent filed charges against DeSeno before the police board of the City of Chicago (Board). DeSeno was accused of violating departmental rules. Following a three-day hearing, the Board found DeSeno guilty of all charges and ordered him discharged from the police force.

Becker timely filed a complaint on behalf of DeSeno for administrative review of the Board's decision. The complaint named only the Board as defendant. On March 17, 1987, it was dismissed for want of prosecution.

DeSeno then retained another attorney who refiled a complaint for administrative review. On January 27, 1989, the circuit court found the Board's order was against the manifest weight of the evidence and ordered the cause remanded for rehearing and for a sanction of less than discharge. On May 18, 1989, the Board reconsidered the charges, found DeSeno guilty of minor departmental rules, and suspended him from the police force for one year.

The superintendent of police then timely filed a complaint for administrative review of the Board's new findings. The circuit court affirmed DeSeno's suspension.

The superintendent of police appealed to the appellate court seeking reversal of the circuit court's decision. He argued that DeSeno was barred from seeking any administrative review because his original complaint had failed to name and serve summons upon all the necessary parties within the 35-day limitations period set forth in the Illinois Administrative Review Law. Ill. Rev. Stat. 1985, ch. 110, pars. 3-103, 3-107. More specifically, the superintendent argued that DeSeno's first petition in the case was fatally defective because it failed to name and serve summons upon him. The appellate court agreed with the superintendent and reversed the circuit court decision. Consequently, DeSeno's one-year suspension was reversed, and the Board's original discharge decision was reinstated.

DeSeno then filed the instant action for legal malpractice against Becker. DeSeno alleged that Becker's failure to name the superintendent of police as a party defendant in the original complaint for administrative review violated the then-existing applicable standard of care of a reasonably competent attorney. DeSeno further alleged that due to Becker's purported negligence, he was discharged rather than suspended from the police force. Becker filed a motion for summary judgment contending that he breached no duty to DeSeno because the superintendent of police was not a necessary party at the time he filed the original administrative review complaint on his behalf. The trial court granted Becker's motion for summary judgment and denied DeSeno's subsequent motion to reconsider. From these orders DeSeno appeals.

Summary judgment is proper only where there are no issues of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1992). We review the matter de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 180 Ill. Dec. 691, 607 N.E.2d 1204 (1992).

At the time of the disputed representation, the pertinent section of the Administrative Review Law provided:

"Defendants. In any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall ...


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