Appeal from the Circuit Court of Du Page County. No. 04--L--1284 Honorable Hollis L. Webster, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Zenoff
Plaintiff, Margaret R. Nettleton, filed a complaint against defendants, William J. Stogsdill, Jr. (Stogsdill), and The Law Offices of William J. Stogsdill, Jr. (firm), alleging that they committed malpractice during their representation of her in her dissolution proceeding. Plaintiff appeals the trial court's order granting defendants summary judgment on plaintiff's complaint and the trial court's order dismissing plaintiff's counterclaim. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.
On December 2, 2004, plaintiff filed a complaint against defendants, alleging that they committed malpractice during their representation of her in her dissolution proceeding. Plaintiff's complaint was based on the following facts taken from the record on appeal. She retained Stogsdill to represent her in connection with the dissolution petition she filed on July 10, 2001 (first dissolution petition), against her then-husband Mark Terrell. Terrell filed a counterpetition for dissolution, and the trial on plaintiff's and Terrell's petitions was set for December 4, 2002.
On December 3, 2002, Brian Nigohosian, an associate at the firm, appeared before the trial court and requested a continuance because Stogsdill was engaged in another trial and unable to prepare or be available to go to trial on plaintiff's dissolution. The trial court denied the motion for a continuance. The following day, Stogsdill appeared in court on behalf of plaintiff and asked the trial court to reconsider its ruling on the motion for a continuance. Stogsdill informed the trial court that he was unavailable and unprepared to go to trial. The trial court allowed a short continuance, ordering that the trial would begin that Friday, December 6, 2002.
On December 6, 2002, Stogsdill appeared in court and moved the trial court to voluntarily non-suit the first dissolution petition. The trial court denied Stogsdill's motion because he had failed to provide proper notice to the parties. Stogsdill then called plaintiff to the stand, where he asked her to state and spell her name, after which he dismissed her as a witness and rested plaintiff's case in chief. The trial court entered a directed finding on the first dissolution petition, finding that plaintiff had failed to prove grounds for a dissolution, and entered an order dismissing the first dissolution petition. Terrell then had his counterpetition dismissed for want of prosecution.
One week later, on December 13, 2002, plaintiff, still represented by Stogsdill, refiled her dissolution case (second dissolution petition).*fn1 Stogsdill continued to represent plaintiff until February 2003. After the termination of Stogsdill's representation of plaintiff and until the parties finally settled in 2005, plaintiff was represented by four other firms. During the pendency of the second dissolution petition, Terrell filed an interlocutory appeal from one of the trial court's decisions, which was affirmed by the appellate court, and also filed a separate petition for dissolution in Will County, which was dismissed.
In her complaint against defendants, plaintiff alleged that defendants committed legal malpractice when Stogsdill (1) was unprepared to go to trial on her first dissolution petition because he was engaged in another trial; (2) without her consent, moved to voluntarily non-suit the first dissolution petition; and (3) without her consent, put plaintiff on the stand, asked only her name and its spelling, and then rested her case in chief, resulting in a directed finding on her first dissolution petition. According to plaintiff, as a result of Stogsdill's negligence, she remained married to Terrell, she had to file a second dissolution petition, Terrell filed a petition for dissolution in Will County, she had to defend an interlocutory appeal filed by Terrell, and her employment prospects were impaired due to the protracted divorce litigation. Plaintiff further alleged that she incurred the following damages due to Stogsdill's negligence: the loss of the use and enjoyment of property and assets that remained part of the marital estate during the divorce litigation, attorney fees paid to defendants in connection with Stogsdill's representation of her, attorney fees and court costs expended during the subsequent divorce litigation, and the "monetary and non-monetary damages" incurred during the course of her employment.
On April 13, 2007, defendants filed a motion for summary judgment, arguing that defendants did not breach the duty of care owed to plaintiff, plaintiff presented no evidence that defendants were the proximate cause of plaintiff's damages, and plaintiff lacked evidence to establish that she suffered any "actual damages." Following a hearing on the matter, the trial court granted defendants' motion for summary judgment, finding that plaintiff failed to present evidence that she suffered actual damages that were proximately caused by defendants' alleged negligence.
Following the trial court's ruling on defendants' motion for summary judgment, defendants' counterclaim, which was a fee petition originally filed in the underlying dissolution case and consolidated with plaintiff's malpractice case, remained pending. With leave of court, plaintiff filed a two-count counterclaim to defendants' counterclaim, alleging breach of fiduciary duty and breach of contract. Defendants filed a motion to dismiss plaintiff's counterclaim pursuant to section 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--619 (West 2006)), alleging that the claims in plaintiff's counterclaim were duplicative of the claim alleged in plaintiff's original complaint. The trial court agreed and granted defendants' motion to dismiss plaintiff's counterclaim.
On October 17, 2007, plaintiff filed a motion to reconsider. The following day, defendants filed a motion to voluntarily dismiss their counterclaim, which the trial court granted the same day. On November 5, 2007, the trial court denied plaintiff's motion to reconsider, and plaintiff filed a timely notice of appeal on November 27, 2007.
On appeal, plaintiff argues that the trial court erred in two respects: (1) the trial court erred in granting defendants' motion for summary judgment on plaintiff's complaint, and (2) the trial court erred in granting defendants' motion to dismiss plaintiff's counterclaim. We will address each contention in turn.
A. Motion for Summary Judgment
Plaintiff first argues that the trial court erred in granting defendants' motion for summary judgment on her complaint. According to plaintiff, the trial court's grant of summary judgment was erroneous because the trial court misapplied the law regarding actual damages and the issue of proximate cause was an issue of fact inappropriate for resolution on summary judgment. Defendants disagree with both of plaintiff's contentions and further allege that, even if the trial court erred with respect to its findings on actual damages and proximate cause, we should nonetheless affirm the grant of summary judgment on the basis that defendants did not breach their duty to plaintiff.
Summary judgment is appropriate when the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007). The purpose of summary judgment is not to try an issue of fact, but to determine if one exists. Forsythe, 224 Ill. 2d at 280. In reviewing a grant of summary judgment, the appellate court will construe the record strictly against the movant and liberally in favor of the nonmoving party. Forsythe, 224 Ill. 2d at 280. Summary judgment should not be allowed unless the moving party's right to judgment is clear and free from doubt. Forsythe, 224 Ill. 2d at 280. If the undisputed facts could lead reasonable observers to divergent inferences, or if there is a dispute as to a material fact, summary judgment should be denied. Forsythe, 224 Ill. 2d at 280. We review a grant of summary judgment de novo. Forsythe, 224 Ill. 2d at 280.
To succeed in a claim for legal malpractice, a plaintiff must plead and prove the following elements: (1) the defendant attorney owed the client a duty of due care arising from the attorney-client relationship, (2) the defendant breached that duty, (3) as a proximate result, the client suffered injury. Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 225-26 (2006). The existence of actual damages is essential to a cause of action for legal malpractice. Tri-G, 222 Ill. 2d at 226. Actual damages in a legal malpractice case are not presumed; a plaintiff must plead and prove that she has suffered injuries resulting from the defendant attorney's alleged malpractice. Sterling Radio Stations, Inc. v. Weinstine, 328 Ill. App. 3d 58, 63 (2002). Even if negligence on the part of the defendant attorney is proven, a plaintiff cannot recover for legal malpractice unless she also proves that the attorney's negligence proximately caused her damages. Tri-G, 222 Ill. 2d at 226.
The trial court found that plaintiff failed to present any evidence of actual damages because she failed to present any evidence that she would have received a larger award in the dissolution proceeding had defendants not been negligent. The trial court further found that the damages plaintiff alleged she suffered did not constitute actual damages. Plaintiff argues that such a finding was erroneous with respect to her claim for attorney fees because such fees were a ...