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Plaintiff, Catherine Fox, brought this action against Defendants, Melvyn Berks, ScottColky, and Berks and Colky Ltd., seeking recovery for legal malpractice. Plaintiff alleges thatshe incurred damages as a result of negligent legal representation rendered by defendants inplaintiff's dissolution action against her former husband. In her complaint, plaintiff alleged thatdefendant was negligent in (a) failing to fully investigate and discover the nature and extent ofthe parties' marital property, (b) failing to prevent plaintiff's former husband from concealingand/or dissipating marital assets, (c) failing to enforce an injunction entered against her formerhusband, and (d) failing to prevent the dissolution judgment from being amended to her formerhusband's benefit. Plaintiff further alleged that due to the legal malpractice of the defendants, shedid not obtain the share of the marital profits she would have obtained had the defendant notbeen negligent.

Plaintiff retained the defendants to represent her in her dissolution of marriageproceedings in October, 1991. In January of 1993, after a trial, a judgment for dissolution wasentered. The court made specific rulings as to what constituted marital assets and awardedplaintiff more than $1.6 million in marital assets plus maintenance and child support. OnJanuary 22, 1993, the judgment was modified in part and a motion for reconsideration and for anew trial was denied. Post-trial motions filed by plaintiff's former husband claiming that hecould not meet the obligations of the judgment for dissolution because his businesses weresuffering financial distress were denied.

On February 26, 1993, defendants withdrew as plaintiff's attorneys. Thereafter, plaintiffwas represented by other counsel through post-decree proceedings and appeals. The proceedingswere ultimately resolved on August 9, 1994, via a settlement of $1.35 million. Plaintiff settledfor an amount less than the $1.6 million awarded to her in the January 1993 judgment fordissolution.

In granting summary judgment, the trial court determined that Plaintiff could not establishthe required elements of a professional negligence claim. The trial court found that the plaintiffcould not establish damages because she voluntarily settled for less than the Judgment obtainedfor her by the defendants, and if the settlement was compelled, it was compelled by her formerhusband's refusal to comply with the Judgment, not by any negligence of the defendants.

DISCUSSION

In a legal malpractice action, a plaintiff must prove the existence of an attorney-clientrelationship; a duty arising from that relationship; a proximate causal relationship between thebreach of duty and damages sustained; and actual damages. Adams v. Sussman & Herzberg,292 Ill.App.3d 30, 32-33, 684 N.E.2d 935, 938 (1997). Damages are not presumed; the plaintiffmust affirmatively plead and prove that she suffered injury as a result of the attorney'smalpractice. Glass v. Pitler, 276 Ill.App.3d 344, 657 N.E.2d 1075 (1995). The malpracticeplaintiff is required to prove a case-within-a-case, that is, the plaintiff is required to prove theunderlying action and what his recovery would have been in that prior action absent the allegedmalpractice. Glass, 276 Ill.App.3d 344, 657 N.E.2d 1075.

Here, Plaintiff's allegations of professional negligence were predicated upon assertionsthat defendants failed to perform adequate discovery of the businesses of her former husband. Plaintiff alleged that she alerted defendants of her concerns that her husband was attempting totransfer accounts of his businesses in order to conceal their true value. Plaintiff asserts thatcertain marital assets were discovered in post-judgment proceedings and that the failure todiscover these assets before the dissolution judgment damaged plaintiff to the extent of at leasther share of $1.7 million.

Plaintiff further alleges that she suffered damages when she settled for less than herJanuary 1993 Judgment. Plaintiff asserts that her former husband failed to comply with theJanuary 1993 Judgment and that "as a proximate cause of defendant's negligence," she settled forless than that to which she was entitled. Plaintiff further asserts that she was damaged in thatcertain portions of the Judgment her former husband failed to perform, he is now not required toperform under the settlement.

Defendants assert that the plaintiff is precluded from recovery in this action because shesettled the underlying case for less than she was awarded in the 1993 Judgment. Defendantscontend that at the time they were discharged from representing the plaintiff, she had a valid andenforceable Judgment for approximately $1.9 million. Defendants maintain that because theplaintiff settled for less than that amount, she cannot recover from defendants.

We agree.

The plaintiff relies upon this court's ruling in McCarthy v. Pedersen & Houpt, 250Ill.App.3d 166, 621 N.E.2d 97 (1993), to support her contention that the settlement of theunderlying case does not automatically bar her malpractice action against the attorney whorepresented her in that action. In McCarthy, the plaintiff was represented by defendant attorneysin a commercial litigation matter. The underlying case went to trial, however, before the juryreturned a verdict, the plaintiff agreed to settle the case. The plaintiff had an independentattorney review the settlement agreement and then he executed the settlement agreement. Thereafter, he filed a claim asserting attorney malpractice against the attorneys who representedhim in the underlying lawsuit. This court determined that the plaintiff's malpractice claim wasnot automatically barred by the settlement of the underlying matter. This court reasoned that inthat case, a dispute existed as to whether the attorneys were negligent in their handling of theunderlying case and whether the plaintiff was damaged by such negligence. The McCarthy courtdetermined that "only a trial on the merits can fully and fairly resolve the issue of whether anattorney is liable for malpractice despite the fact that the underlying case was settled." 250Ill.App.3d at 172, 621 N.E.2d at 101.

In the case at bar however, the plaintiff cannot prove she was damaged. Here, theplaintiff had a valid and enforceable judgment for more than $1.6 million and she settled for lessthan that amount. The plaintiff in McCarthy did not have a judgment in the underlying matter,thus the court determined that a trial was necessary to determine whether or not the plaintiff wasdamaged by the negligence of the attorneys. Here, plaintiff had a valid judgment and she settledfor less than what the defendants had originally obtained for her. Thus, the plaintiff cannot provethat she was damaged by any negligence of the defendants because she cannot prove that even ifa larger judgment had been obtained by the defendants, she would have been able to enforce thatjudgment.

Furthermore, the plaintiff asserts that somehow the defendants were responsible for herinability to compel her former husband to comply with the 1993 Judgment. The defendants weredischarged shortly after obtaining the 1993 Judgment for the plaintiff. Thus, we fail to see howthe plaintiff can prove that the defendants were liable for her former husband's refusal to complywith the Judgment. The plaintiff herself alleged that her former husband failed to comply withthe 1993 Judgment. We agree with the trial court that if plaintiff's settlement was compelled, itwas compelled by her former husband's refusal to comply with the Judgment, not by anynegligence of the defendants.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

COHEN, P.J., and McNULTY, concur.