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FOURTH DIVISION
MARCH 11, 2004

1-03-0945

 

JUSTICE HARTMAN delivered the opinion of the court:

Plaintiff appeals from the circuit court's 2-619 dismissal ofher legal malpractice action against defendants, her formerattorneys; James Ellis Gumbiner, the Law Offices of James EllisGumbiner & Associates (Gumbiner), Bruce D. Goodman, Emilio Machado,and the Law Office of Steinberg, Polacek & Goodman (Goodman).⁽¹⁾ Onappeal, plaintiff questions whether the circuit court erred indetermining defendants' negligence did not proximately cause plaintiff's defeat in her personal injury lawsuit against theChicago Transit Authority (CTA). For the reasons that follow, thecircuit court's judgment is affirmed.

On April 29, 1999, plaintiff, Petra Cedeno, was injured whenshe fell while exiting a CTA bus. In an effort to commence apersonal injury lawsuit against CTA, she retained as her attorney,Gumbiner.⁽²⁾ Shortly thereafter, Gumbiner referred the case toGoodman, who sent to CTA a "Notice of Claim for Personal Injuries"(Notice) on September 8, 1999. The Notice alleged incorrectly thatplaintiff's accident occurred on April 30, 1999; instead of theactual date, April 29, 1999. In a letter dated January 13, 2000,plaintiff terminated her relationship with Goodman.

Proceeding with her lawsuit against CTA, plaintiff retainedPatrick Cummings and the Law Offices of Ciardelli & Cummings(Cummings).⁽³⁾ Through Cummings, plaintiff filed her complaint onApril 20, 2000, nine days within the statute of limitations. Sheasserted the accident date was April 29, 1999, which CTA denied inits answer. On September 13, 2000, CTA moved for summary judgment,citing plaintiff's failure to comply strictly with the noticerequirements set forth in section 41 of the Metropolitan TransitAuthority Act (MTAA). 70 ILCS 3605/41 (West 1998) (section 41). Specifically, CTA argued plaintiff's Notice contained the wrongaccident date, and further asserted the date varied from thecorrect date stated in the complaint, which CTA previously deniedin its answer.

In response, plaintiff asserted CTA's failure to provide herwith a copy of section 41 as required by that section, precluded itfrom using the section's formal notice requirements as grounds fordismissal. Plaintiff also claimed the defect was a de minimustypographical error, and that compliance with section 41 should be"liberally construed" in her favor, in accordance with theamendment to this section.

On February 7, 2001, the circuit court granted CTA's motionfor summary judgment, dismissing the cause with prejudice. Thereafter, on February 15, 2001, Cummings filed a timely notice ofappeal from the circuit court's grant of summary judgment and,weeks later, filed an amended notice of appeal. Plaintiff's appealwas dismissed by the appellate court on July 19, 2001, for want ofprosecution.

On August 23, 2001, plaintiff commenced the instant legalmalpractice action, naming both Gumbiner and Goodman asdefendants.⁽⁴⁾ Gumbiner and Goodman filed separate motions todismiss plaintiff's malpractice action. The circuit court foundplaintiff's Notice sufficient to trigger CTA's affirmative duty tofurnish plaintiff with a copy of section 41 of the MTAA. Accordingly, the court granted defendants' motions, dismissingplaintiff's cause with prejudice.⁽⁵⁾ Plaintiff timely appeals.

Plaintiff contends defendants were negligent for providingdefective written notice of her accident to CTA. It is herposition that the Notice provided is tantamount to no notice at allsince the inclusion of the correct date is an indispensable elementof notice under section 41. Relying on Frowner v. Chicago TransitAuthority, 25 Ill. App. 2d 312, 315, 167 N.E.2d 26 (1960), andYokley v. Chicago Transit Authority, 307 Ill. App. 3d 132, 136-37,717 N.E.2d 451 (1999) (Yokley), plaintiff argues without thecorrect accident date, written notice cannot comply strictly withthe requirements of section 41.

Plaintiff acknowledges section 41 was amended in 1998,imposing upon CTA a duty to furnish a copy of section 41 to anypossible claimants who notify CTA of an accident or cause ofaction. She urges, however, CTA's duty never arose here since itnever actually received notice of an accident occurring on April29, 1999. She believes the issue of whether CTA had a duty toprovide her with a copy of section 41 is irrelevant to the questionof whether defendants were negligent for providing defectivenotice. Plaintiff concludes that "[n]othing in the amendedlanguage [of section 41] relieved the individual providing 'Notice'from providing the correct date of accident."

Plaintiff cites two cases that have addressed section 41 asamended, Fields v. Chicago Transit Authority, 319 Ill. App. 3d 683,745 N.E.2d 102 (2001) (Fields), and Puszkarska v. Chicago TransitAuthority, 322 Ill. App. 3d 75, 748 N.E.2d 755 (2001) (Puszkarska). In Fields, plaintiff was injured on a CTA bus and handed thedriver a courtesy card containing information regarding heraccident. On appeal, she argued the card satisfied the noticerequirement, triggering CTA's duty to provide her with a copy ofsection 41, which it did not do. The court found CTA's failure tocomply with its obligation caused it to waive the formal noticerequirements, leaving the court to determine only whether theinformation on the card was sufficient to trigger CTA's duty. Infinding the card adequate, the court noted that "the mostsignificant information provided to CTA was the date and time ofthe accident." Fields, 319 Ill. App. 3d at 687-90. Plaintiffextrapolates from Fields that reasonable notice must include thecorrect date and hour.

In Puszkarska, plaintiff filed with CTA written noticecontaining only one defect - the hour of the accident was omitted. Plaintiff argued her notice actuated CTA's duty to provide her witha copy of section 41, which it neglected to do. CTA arguedplaintiff's notice should be disregarded as an initialcommunication for failure to conform stringently to the detailedrequirements of section 41. Construing the initial communicationliberally, the court determined amended section 41 requires onlythat the initial communication be in writing to trigger CTA's duty,and CTA's nonperformance caused it to waive plaintiff's formalnotice obligations. Puszkarska, 322 Ill. App. 3d at 78-79.

Defendants respond that plaintiff misconstrues the paramountissue in this case, suggesting the issue is not whether the initialNotice complied strictly with the formal requirements of section41; rather, whether the initial Notice was sufficient to triggerCTA's duty to provide a copy of section 41 to plaintiff, therebyprecluding CTA from dismissing the action on grounds of defectivenotice.

Defendants likewise rely on Fields and Puszkarska, correctlypointing out these cases recognize section 41's amendment modifiedthe overall procedural scheme for filing a claim against CTA. Theyargue the amendment to section 41, which allows for initial writtennotice to be "liberally construed," abrogates plaintiff's duty toadhere strictly to the detailed formal notice requirements insituations, as here, where CTA fails to furnish plaintiff withsection 41. Once CTA's duty is triggered but goes unsatisfied, CTAmay not dismiss a claim based solely on plaintiff's non-compliance. Therefore, they maintain, the adverse impact of their defectiveinitial Notice was negated, and the strength of plaintiff'sunderlying case against CTA was left intact.

Defendants insist they could not have proximately causedplaintiff's damages since her case remained actionable at the timeof their discharge as plaintiff's attorneys. Citing Land v.Greenwood, 133 Ill. App. 3d 537, 540-41, 478 N.E.2d 1203 (1985)(Land) and Mitchell v. Schain, Firsel, & Burney, Ltd., 332 Ill.App. 3d 618, 620-21, 773 N.E.2d 1192 (2002) (Mitchell), defendantsaver that where the conduct of a successor attorney constitutes theindependent and superseding cause of plaintiff's damages, thedischarged attorney cannot be found to have committed legalmalpractice. Defendants posit the circuit court erroneouslydismissed plaintiff's case against CTA and speculate that, ifplaintiff's appeal had been pursued, the appellate court would haveruled in her favor, applying the holdings of Fields andPuszkarska.⁽⁶⁾

Plaintiff replies that Cummings could not have rectifieddefendants' negligence since the six-month notice period hadlapsed.⁽⁷⁾ Although plaintiff filed her complaint against CTA onApril 20, 2000, she inconsistently maintains her case was no longerviable (or destined for failure), at the time of defendants'discharge on January 13, 2000.

The standard of review of a motion to dismiss under section 2-619 is de novo. Pochopien v. Marshall, 315 Ill. App. 3d 329, 335,733 N.E.2d 401 (2000). A section 2-619 motion admits the legalsufficiency of the complaint and raises defects, defenses or otheraffirmative matters which appear on the face of the complaint orare established by external submissions which act to defeatplaintiff's claim. Spirit of Excellence, Ltd. v. IntercargoInsurance Co., 334 Ill. App. 3d 136, 145, 777 N.E.2d 660 (2002);735 ILCS 5/2-619 (2002). All properly pleaded facts are acceptedas true; a reviewing court is concerned only with the question oflaw presented by the pleadings. Thornton v. Shah, 333 Ill. App. 3d1011, 1019, 777 N.E.2d 396 (2002). If a cause of action isdismissed pursuant to section 2-619, the question on appeal iswhether a genuine issue of material fact exists and whetherdefendant is entitled to a judgment as a matter of law. Pochopien,315 Ill. App. 3d at 335.

To prevail in an action for legal malpractice, plaintiff mustplead and prove the following elements: (1) an attorney-clientrelationship that establishes a duty on the part of the attorney;(2) a negligent act or omission constituting a breach of that duty;(3) proximate cause establishing that "but for" the attorney'smalpractice, plaintiff would have prevailed in the underlyingaction; and (4) actual damages. Mitchell, 332 Ill. App. 3d at 620. The basis of such a claim is that plaintiff would have beencompensated for an injury caused by a third party, absentnegligence on the part of plaintiff's attorney. Eastman v.Messner, 188 Ill. 2d 404, 411, 721 N.E.2d 1154 (1999). Where anattorney's negligence is alleged to have occurred during therepresentation of a client in the underlying action, which neverreached trial because of that negligence, plaintiff is required toprove counsel's negligence resulted in the loss of the underlyingaction. Sheppard v. Krol, 218 Ill. App. 3d 254, 257, 578 N.E.2d212 (1991). In other words, plaintiff must prove a "case within acase." Warren v. Williams, 313 Ill. App. 3d 450, 455, 730 N.E.2d512 (2000). If the underlying cause remained actionable upon thedischarge of the former attorney, plaintiff can prove no set offacts which connect defendant's conduct with any damage plaintiffsustained. Mitchell, 332 Ill. App. 3d at 620; Land, 133 Ill. App.3d at 540.

Pursuant to amended section 41, potential claimants may submitan initial written communication directly to CTA, and upon receiptof any such communication that can be "reasonably interpreted asnotification," CTA must furnish that person with a copy of section41. Fields, 319 Ill. App. 3d at 689; 70 ILCS 3605/41 (West 1998). CTA's failure to comply with its distribution obligationconstitutes a waiver of plaintiff's duty to comply with the formalnotice requirements outlined in the first paragraph of section 41. Fields, 319 Ill. App. 3d at 689. Therefore, section 41's formalnotice requirements must be adhered to strictly only when CTA hasprovided a copy of section 41 to plaintiff.⁽⁸⁾

Here, in the underlying action, all aspects of defendants'initial Notice were flawless, except for the incorrect date of theaccident, which was wrong by one day. Although Fields held awritten communication containing the correct date and time "can bereasonably interpreted as notification," it did not hold initialnotice lacking the correct date to be insufficient per se. Indeed,the legislature's chosen language in amended section 41 indicatesa contrary application. Unlike the language in the first paragraphof section 41, the added paragraph requires only an initial writtennotification that an injury or cause of action may exist. It issilent as to the form of that notice, but postulates that suchinitial notice shall be "liberally construed" in favor of theclaimant. The intent behind the amendment was, in part, tomitigate the onerous burden of section 41's formal noticerequirement so legitimate claims would not be unjustly dismissed. Yokely, 307 Ill. App. 3d at 138-39; 90th Gen. Assem. Senate DebatesMay 21, 1997, at 52. Had the legislature intended strictcompliance for initial written communications, it would not havecrafted an amendment affording claimants the relaxed noticeobligation it has provided. To hold defendants' initial Noticeinsufficient under section 41 as amended would disregardlegislative intent, an endeavor in which reviewing courts must notengage. Integrated Research Services, Inc. v. Illinois Secretaryof State, 328 Ill. App. 3d 67, 71, 765 N.E.2d 130 (2002).

The appellate court acknowledged in Puszkarska, that section41 mandates initial communications are to be "liberally construed,"and stated that "CTA may not pick and chose which writtencommunications trigger its duty ***." The court held thatregardless of the form of initial written notice conveying theexistence of an injury or cause of action, CTA must provideplaintiff with a copy of section 41. Puszkarska, 322 Ill. App. 3dat 79.

In the case sub judice, the circuit court dismissedplaintiff's legal malpractice claim based on finding the Notice,although admittedly defective, could be "reasonably interpreted asnotification" so as to trigger CTA's duty to furnish plaintiff witha copy of section 41, which it failed to do. Due to its lapse, CTAshould not have been permitted to avail itself of the formal noticerequirements as proper grounds for dismissal as a matter of law. Environmental Control Systems, Inc. v. Long, 301 Ill. App. 3d 612,703 N.E.2d 1001 (1998).⁽⁹⁾ Nonetheless, the circuit court in theunderlying case granted summary judgment in favor of CTA.

Notwithstanding this fact, insofar as the present case isconcerned, at the time of defendants' discharge, plaintiff'spersonal injury case remained actionable despite the defectiveinitial Notice. Although CTA would not have moved for, and thecircuit court not have granted summary judgment in the absence ofthe defective Notice, defendants cannot be held accountable for thecourt's acceptance of a legally unsound basis for granting summaryjudgment against plaintiff. Where her claim remained actionableafter defendants' discharge, and the circuit court's misapplicationof the law served as an intervening cause, it cannot be said thatplaintiff's damages proximately resulted from defendants' Notice. Mitchell, 332 Ill. App. 3d at 620; Land, 133 Ill. App. 3d at 540.

Accordingly, for the reasons set forth above, the judgment ofthe circuit court is affirmed.

Affirmed.

QUINN, P.J., and THEIS, J., concur.

1. Defendants Gumbiner and Goodman filed separate appellatebriefs in this matter; however, because their arguments areessentially in lock-step, they are referred to collectively.

2. Petra Cedeno, the injured party and original plaintiff,since died and her daughter, Letiticia Cedeno, a specialadministrator of the estate, was substituted as plaintiff on May7, 2000.

3. Cummings became defendants in this matter when plaintifffiled her fourth amended complaint on October 4, 2002, but arenot parties to this appeal. Plaintiff's case against Cummings ispending in the circuit court.

4. In her legal malpractice suit against Cummings, plaintiffalleged Cummings failed to file either an appellate brief or atimely motion to vacate the appellate court's order dismissingthe appeal of her suit against CTA.

5. The circuit court, however, simultaneously denied Cummings'motion to dismiss plaintiff's claim. As previously noted,although not parties to the instant appeal, Cummings remainparties to the case before the circuit court.

6. Fields and Puszkarska, were published on February 20, 2001,and May 1, 2002, respectively, only months before plaintiff'sappeal was ultimately dismissed for want of prosecution on June19, 2001.

7. The six-month notice requirement expired on September 29,1999.

8. Formal written notice must provide, inter alia, the dateand approximate hour of the accident. 70 ILCS 3605/41 (West1998).

9. In his response to CTA's motion for summary judgment,Cummings made that very argument before the circuit court.