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09/10/97 PATRICIA WILSON v. CORONET INSURANCE

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION


September 10, 1997

PATRICIA WILSON, AS MOTHER AND NEXT FRIEND OF JOYCE ANN WILSON, A MINOR, AND ASSIGNEE OF BRUCE SARTIN, PLAINTIFF-APPELLANT,
v.
CORONET INSURANCE COMPANY, MARVIN S. LANSKY, FISCH, LANSKY AND ASSOCIATES, F/K/A FISCH, LANSKY AND HERMAN, F/K/A FISCH, LANSKY AND GREENBERG, DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of Cook County. No. 92 L 016254. Honorable Loretta C. Douglas, Judge Presiding.

The Honorable Justice Cahill delivered the opinion of the court. Cousins, P.j. and Gordon, J., concur.

The opinion of the court was delivered by: Cahill

The Honorable Justice CAHILL delivered the opinion of the court:

Plaintiff Patricia Wilson appeals from trial court orders dismissing all counts in her third-amended complaint. We review, among other matters, whether a party to a lawsuit may assign a cause of action against his lawyer for breach of fiduciary duty. We conclude that he may not.

In her third-amended complaint, plaintiff alleges that in November 1986, Joyce Ann Wilson was injured when struck by a vehicle driven by Bruce Sartin. Joyce Ann Wilson, through her mother, the plaintiff, sued Sartin. Sartin was insured by Coronet Insurance Company (Coronet). Coronet retained Fisch, Lansky & Associates to defend Sartin. Marvin Lansky was the trial attorney primarily responsible for the defense.

On July 1, 1987, and on May 5, 1989, Wilson offered to settle for the $15,000 limit on the policy. Coronet refused. At this point, plaintiff contends, Coronet's and Sartin's interests diverged, presenting an "actual conflict of interest" for Lansky and his law firm. Plaintiff asserts that when Coronet first learned about the accident, Coronet "knew or would have, in the exercise of ordinary care, known that the probability of an adverse finding of liability against [Sartin] was great and that the amount of damages resulting from [Sartin's] acts would far exceed the applicable limits of liability coverage."

Plaintiff alleges that Lansky and his law firm had financial interests in Coronet, including: (1) Lansky was paid by Coronet for Sartin's defense; (2) Fisch, Lansky, & Associates derived most of its business from Coronet, and (3) Kenneth Fisch, a firm partner, was vice-president of Coronet. Plaintiff further alleges that Lansky and his law firm acted as agents of Coronet throughout the litigation against Sartin.

After trial, a jury returned a verdict against Sartin and assessed damages in the amount of $3,625,000. Sartin later assigned his causes of action against Coronet, Lansky, and his law firm to plaintiff. Plaintiff sued defendants.

In count I, plaintiff alleges that Coronet breached a duty of "good faith and reasonable care" in evaluating the claim against Sartin, in providing for Sartin's defense, and in refusing to accept plaintiff's settlement offers. In count II, plaintiff alleges that Coronet breached its contract with Sartin by failing to provide counsel that would act in Sartin's best interests and by failing to fairly evaluate, adjust, and settle the claim against Sartin. In count III, plaintiff alleges that Lansky and his law firm breached a fiduciary duty owed to Sartin by failing to disclose conflicts of interest.

Defendants Lansky and his law firm moved to dismiss count III, arguing that plaintiff did not plead sufficient facts to state a cause of action for breach of fiduciary duty. On May 3, 1996, the trial court granted the motion under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619(9) (West 1996)). On May 22, 1996, plaintiff filed a notice of appeal from the May 3, 1996, order.

Defendant Coronet moved to dismiss counts I and II. On May 7, 1996, the trial court granted Coronet's motion. On June 4, 1996, the trial court denied plaintiff leave to file her fourth-amended complaint. On June 26, 1996, plaintiff filed a notice of appeal from the June 4, 1996, order.

Coronet moved to dismiss plaintiff's appeal of the dismissal of counts I and II. We took the motion with the case. Coronet argues that plaintiff did not file a notice of appeal from the trial court's order dismissing counts I and II until June 26, 1996, more than 30 days after the trial court's May 7, 1996, order, in violation of Supreme Court Rule 303(a). 155 Ill. 2d R. 303(a)(1). Plaintiff counters that the trial court did not enter a final and appealable order until June 4, 1996, when it denied plaintiff leave to file her fourth-amended complaint.

Plaintiff has waived review of counts I and II of her third-amended complaint. To preserve for review the dismissal of claims in a complaint, a plaintiff has two choices: (1) stand on the dismissed counts, obtain an order dismissing the counts with prejudice, and appeal the dismissal; or (2) replead the elements of the dismissed complaint in subsequent amended complaints. See Boatmen's National Bank v. Direct Lines, Inc., 167 Ill. 2d 88, 99, 642 N.E.2d 1274 (1995); Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 154-55, 449 N.E.2d 125, 70 Ill. Dec. 251 (1983). If plaintiff chose the former, she had 30 days from the dismissal to appeal. This plaintiff did not do. Instead, plaintiff appealed the June 4, 1996, order denying her leave to file a fourth-amended complaint. While we may review the trial court's denial of leave to file the fourth-amended complaint, that complaint was not included in the record. We grant Coronet's motion to dismiss the appeal of the trial court's dismissal of counts I and II of the third-amended complaint.

We next address the trial court's dismissal of count III. Plaintiff asserts that the third-amended complaint sufficiently stated that Lansky and his firm breached a fiduciary duty owed to Sartin by continuing to represent Sartin without revealing a conflict of interest or advising him to seek independent counsel. The trial court found that the facts alleged by plaintiff did not and could not support a cause of action for breach of fiduciary duty.

We review a trial court's dismissal of a complaint under section 2-619 de novo. Metrick v. Chatz, 266 Ill. App. 3d 649, 652, 639 N.E.2d 198, 203 Ill. Dec. 159 (1994). We consider all well-pleaded facts as true, and dismissal is proper only if no facts exist that could entitle plaintiff to recover. Griffin v. Fluellen, 283 Ill. App. 3d 1078, 1083, 670 N.E.2d 845, 219 Ill. Dec. 167 (1996). An appellate court can affirm a section 2-619 dismissal on grounds supported by the record, regardless of the trial court's reasons. Ko v. Eljer Industries, Inc., 287 Ill. App. 3d 35, 39, 678 N.E.2d 641, 222 Ill. Dec. 769 (1997).

We need not decide whether count III sufficiently alleged that Lansky and his law firm breached a fiduciary duty owed to Sartin. Sartin's claims against his attorney were not properly assigned to plaintiff.

Illinois courts have held that legal malpractice claims are not assignable. Brocato v. Prairie State Farmers Insurance Ass'n, 166 Ill. App. 3d 986, 988-89, 520 N.E.2d 1200, 117 Ill. Dec. 849 (1988); Clement v. Prestwich, 114 Ill. App. 3d 479, 480-81, 448 N.E.2d 1039, 70 Ill. Dec. 161 (1983); Christison v. Jones, 83 Ill. App. 3d 334, 338-39, 405 N.E.2d 8, 39 Ill. Dec. 560 (1980). But see McGill v. Lazzaro, 62 Ill. App. 3d 151, 379 N.E.2d 16, 19 Ill. Dec. 501 (1978) (stating, in dicta, that an action in professional negligence survives an attorney's death because such an action would be assignable). The reason stems from the nature of the attorney-client relationship and public policy. The fiduciary relationship between an attorney and client is a personal and confidential one, requiring the attorney to exercise "the utmost degree of fidelity, honesty and good faith." See Christison, 83 Ill. App. 3d at 338. Illinois courts have reasoned that a malpractice suit is not appropriately brought by a stranger to that relationship and that allowing such assignments would commercialize legal malpractice suits, "debase the legal profession," "'place an undue burden on *** the legal profession [and] judicial system, restrict the availability of competent legal services, embarrass the attorney-client relationship and imperil the sanctity of the highly confidential and fiduciary relationship existing between attorney and client.'" Christison, 83 Ill. App. 3d at 339, quoting Goodley v. Wank & Wank, Inc., 62 Cal. App. 3d 389, 397, 133 Cal. Rptr. 83, 87 (1976).

Although Illinois cases have only applied this rule to legal negligence claims, we see no reason why this rule should not apply to a "breach of fiduciary duty" claim. A "breach of fiduciary duty" claim against an attorney is "included within the rubric of legal malpractice." Doe v. Roe, 289 Ill. App. 3d , (1997), citing Metrick v. Chatz, 266 Ill. App. 3d 649, 203 Ill. Dec. 159, 639 N.E.2d 198. Sartin's "breach of fiduciary duty" claim was not assignable.

Affirmed in part and dismissed in part.

COUSINS, P.J. and GORDON, J., concur.

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