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10/10/97 BELEN KLING v. JOHN D. LANDRY

October 10, 1997

BELEN KLING, PLAINTIFF-APPELLANT,
v.
JOHN D. LANDRY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 95--L--1114. Honorable Edward R. Duncan, Jr., Judge, Presiding.

Date Corrected October 14, 1997. Released for Publication November 14, 1997.

Presiding Justice Geiger delivered the opinion of the court. Inglis and Bowman, JJ., concur.

The opinion of the court was delivered by: Geiger

The Honorable Justice GEIGER delivered the opinion of the court:

The plaintiff, Belen Kling, appeals from the December 31, 1996, order of the circuit court of Du Page County dismissing her four-count complaint alleging legal malpractice, breach of fiduciary duty, negligence, and intentional battery. In her complaint, the plaintiff alleges that the defendant, John Landry, coerced her into having sexual relations with him while he represented her in two separate legal proceedings. The trial court dismissed the plaintiff's action pursuant to section 2--615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--615 (West 1996)) for failure to state a claim on which relief could be granted. We affirm in part, reverse in part, and remand.

On June 8, 1995, the plaintiff filed her original complaint. On three separate occasions thereafter, the defendant filed motions to dismiss the plaintiff's complaint pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 1996)). On each such occasion, the trial court dismissed the plaintiff's complaint but granted the plaintiff leave to replead. On October 30, 1996, the plaintiff filed her third amended complaint.

The factual allegations contained in the third amended complaint (hereinafter complaint) are as follows. On or about January 22, 1991, the defendant agreed to represent the plaintiff in a dissolution of marriage suit proceeding in the circuit court of Du Page County (In re Marriage of Kling, No. 90--D--2865 (Cir. Ct. Du Page Co.)). The primary disputes at issue in the dissolution proceeding were the distribution of marital property and maintenance. The trial of the case was scheduled to proceed on May 1, 1991.

The complaint alleges that, on the evening of April 30, 1991, the defendant visited the plaintiff's residence in order to prepare for the upcoming trial. While in the plaintiff's home, the defendant allegedly threw the plaintiff on her bed and initiated sexual intercourse with her. The plaintiff alleges that she submitted to the defendant's demands for sexual intercourse because she was afraid that if she refused the defendant would not represent her at trial. The case did not proceed to trial, as the parties subsequently settled all property distribution and maintenance issues. On May 16, 1991, a final judgment for dissolution of marriage was entered by the circuit court.

The complaint further alleges that, in the spring of 1992, the defendant agreed to represent the plaintiff in her attempt to seek a modification of the dissolution order entered by the circuit court of Cook County in the plaintiff's first divorce (Shoblaske v. Shoblaske, Slip. op., No. 84--D--21908 (Cir. Ct. Cook Co.)). On October 13, 1992, the defendant filed a postdissolution petition for modification of judgment, requesting that plaintiff be granted custody of her minor son, Aaron. The plaintiff paid the defendant $1,500 for his legal services in the postdissolution proceeding.

Attached to the judgment of dissolution entered in cause No. 84--D--21908 was a psychological evaluation of the plaintiff performed by the Center for Families in Conflict of the Isaac Ray Center, Inc. This evaluation indicated that the plaintiff suffered from severe psychopathology, including bizarre thought patterns, poor impulse control, affective lability, and possible hallucinations. The plaintiff's complaint alleges that, because of the defendant's knowledge of this report, he knew or should have known that the plaintiff suffered from mental impairments which could affect her ability to make reasonable decisions and judgments during the course of his representation.

The complaint further alleges that, on June 11, 1993, the defendant telephoned the plaintiff and advised her that they needed to prepare for a court appearance scheduled for June 17, 1993. On June 16, 1993, the defendant met with the plaintiff at her home. At this time, the defendant allegedly removed the plaintiff's clothing, pushed her onto a rug in her kitchen, and initiated sexual intercourse. In August 1993, the plaintiff terminated the defendant's representation of her. The plaintiff alleges that the petition for modification of judgment prepared by the defendant was frivolous and had no basis in fact or law.

As noted above, the plaintiff's complaint consists of four counts. Count I of the complaint is predicated upon legal malpractice and alleges that the defendant improperly-utilized his position as the plaintiff's attorney to obtain sexual intercourse with her even though she was mentally impaired. Count I also alleges that the defendant breached his duty of care by filing a "meritless" postdissolution petition for modification. Count II of the complaint is predicated upon breach of fiduciary duty and contains the same allegations as count I. Count III is predicated upon common-law negligence and alleges that the defendant breached his duty of care by encouraging the plaintiff to submit to sexual intercourse even though he knew of her impaired mental condition. Count IV is predicated upon intentional battery and alleges that the defendant's acts of sexual intercourse were without permission and provocation.

On November 19, 1996, the defendant filed a motion to dismiss the plaintiff's complaint pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 1996)). On December 31, 1996, following a hearing, the trial court granted the motion in its entirety and dismissed the plaintiff's complaint with prejudice. In reliance on Suppressed v. Suppressed, 206 Ill. App. 3d 918, 924, 151 Ill. Dec. 830, 565 N.E.2d 101 (1990), the trial court dismissed counts I and II on the basis that they failed to state a cause of action upon which relief could be granted. The trial court dismissed counts III and IV on the basis that they pleaded insufficient facts to state causes of action for negligence and intentional battery. The plaintiff filed a timely notice of appeal.

Because the plaintiff's complaint was dismissed pursuant to a section 2--615 motion, the question before this court is whether her claims set forth a cause of action upon which relief-could be granted. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 505, 152 Ill. Dec. 121, 565 N.E.2d 654 (1990), overruled on other grounds, 163 Ill. 2d 125, 205 Ill. Dec. 487, 643 N.E.2d 778 (1994). 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, 1084, 199 Ill. Dec. 467, 634 N.E.2d 306 (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, 46-47, 153 Ill. Dec. 259, 566 N.E.2d 1365 (1991). An action should not be dismissed on the pleadings unless it is apparent that no set of facts can be proved that would ...


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