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Third Division
June 20, 2001

This is a peculiar case. It raises questions about whethera promise not to enforce a judgment was made and why it wouldhave been made. We are asked to explore lawyers' motives andstratagems.

The controversy was triggered by a legal malpracticecomplaint file by Northern Illinois Emergency Physicians(Northern Illinois) against a law firm, Landau, Omahana, & Kopka,Ltd. (Landau). Not this case. Before that, there was a medicalmalpractice lawsuit brought against Northern Illinois, St.Therese Medical Center (St. Therese), and Dr. Bruce Sands by Ericand Lori Johnson (the Johnsons). Again, not this case.

This case concerns a purported promise or assurance by St.Therese that it would not enforce any indemnity judgment it mightwin against Northern Illinois. Here, Landau seeks to enforcethat promise. We hold Landau lacks standing to bring thislawsuit. For that reason, we affirm the trial court's orderdismissing all four counts of Landau's amended complaint.

FACTS

We take relevant facts from Landau's pleadings and theexhibits attached.

In 1991, the Johnsons filed a medical malpractice claim inthe Circuit Court of Lake County against defendants St. Therese,Northern Illinois, and Dr. Bruce Sands. Northern Illinoisprovided medical services to St. Therese pursuant to contract. Dr. Sands was a partner in Northern Illinois and provided medicalservices in St. Therese's emergency room.

Northern Illinois and Dr. Sands were insured by PremierInsurance (Premier). Premier retained a law firm to representNorthern Illinois and Dr. Sands. During the pendency of themedical malpractice case, Premier went into receivership.

Afterwards, the Illinois Insurance Guarantee Fund (the Fund)assumed the defense of Northern Illinois and Dr. Sands. The Fundretained the Landau firm and Bower -- one of Landau's attorneys -- to defend in the medical malpractice action. Northern Illinoisalso retained Steven J. Schostok as additional counsel.

St. Therese demanded the Fund assume its defense andindemnify it pursuant to an agreement it had with NorthernIllinois. The Fund refused, and Michael F. Henrick of Hinshawand Culbertson represented St. Therese throughout the Johnsons'lawsuit.

Before trial, the Johnsons said they would settle theirmedical malpractice claim if the Fund agreed to pay $600,000 --which represented the liability limits of a $300,000 policycovering Dr. Sands and a $300,000 policy covering NorthernIllinois. The Fund refused, maintaining there was only onepolicy covering Dr. Sands and Northern Illinois. That policy'smaximum statutory limit was $300,000.

On March 11, 1996, the first day of trial, Henrick made anoral motion on behalf of St. Therese for leave to file a third-party complaint (actually a counterclaim) for indemnificationagainst Northern Illinois and Dr. Sands. Bower orally objectedto the motion on behalf of Northern Illinois. The initial trialjudge declined to rule on St. Therese's motion and continued themotion until the assigned trial judge could hear it.

Henrick then approached Landau and Schostok and told themthe purpose of filing the third-party complaint forindemnification was to force the Fund to settle the matter for$600,000. He "assured" them St. Therese would not seekenforcement of any judgment resulting from the indemnity claim. Bower told Henrick he had to make at least "some objection" tothe indemnity claim. Henrick agreed.

Henrick renewed St. Therese's motion before the assignedtrial judge. Bower then objected on the ground of "timeliness." The assigned trial judge overruled the objection and granted St.Therese's motion, giving St. Therese leave to file its third-party complaint.

After settlement negotiations between the Fund and theJohnsons failed, the case was tried to a jury. Henrick continuedto "assure" Schostok and Bower that St. Therese would not seek toenforce any judgment obtained against Northern Illinois. Thejury returned a verdict against all the defendants for $4million.

The trial court directed a verdict against Northern Illinoisand Dr. Sands and in favor of St. Therese for indemnification inthe amount of $4 million. The trial court denied post-trialmotions.

Northern Illinois appealed from the entry of the indemnityjudgment. In that appeal, Northern Illinois filed a bystander'sreport stating it objected to the filing of the third-partycomplaint on grounds of timeliness. Northern Illinois contendedthe third-party complaint was barred by the statute oflimitations. The appellate court affirmed the judgment.

On March 18, 1998, Northern Illinois and the individualpartners sued Landau for legal malpractice. Northern Illinoisalleged the law firm breached the standard of care by failing torespond to or file a motion to dismiss St. Therese's third-partycomplaint in the Johnson case.

On April 20, 1998, St. Therese satisfied the entirejudgment. Since paying the judgment, St. Therese has notattempted to enforce its indemnity judgment against NorthernIllinois. St. Therese's only action was to seek $600,000 fromthe Fund, and the filing of a non-wage garnishment notice againstthe Fund for the entire amount of the judgment entered againstNorthern Illinois. As yet, Northern Illinois has paid nothing toSt. Therese.

Landau moved to dismiss Northern Illinois' legal malpracticeaction. Landau contended Northern Illinois failed to allege therequisite element of proximately caused actual damages since St.Therese is barred from enforcing any judgment against NorthernIllinois because of "promises" and "an agreement" between it andNorthern Illinois. The trial court denied Landau's motion.

On August 20, 1999, plaintiffs filed this suit fordeclaratory judgment and other equitable relief, seeking "topreclude, estop or enjoin St. Therese from enforcing theindemnity judgment against Northern Illinois." Each of the fourcounts of the amended complaint seeks relief based on an allegedoral contract between St. Therese and Northern Illinois.

Count one of Landau's amended complaint seeks a declarationthat, pursuant to the "binding" agreement between St. Therese andNorthern Illinois, St. Therese is precluded from enforcing theindemnity judgment against Northern Illinois.

Count two is for promissory estoppel. Landau requests,based on St. Therese's "clear and unambiguous promise," a findingthe indemnity judgment cannot be enforced against NorthernIllinois.

Count three is for specific performance. Landau requestsspecific performance of the "oral contract," i.e., St. Therese'spromise not to enforce the indemnity judgment against NorthernIllinois.

Count four is for "injunctive relief." Landau requests St.Therese be permanently enjoined and restrained from enforcing theindemnity judgment against Northern Illinois.

St. Therese and Northern Illinois did not file an answer tothe amended complaint. Instead, they filed motions to dismissthe amended complaint pursuant to section 2-615 and section 2-619of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615,2-619 (West 1998)), contending (1) plaintiffs lacked standing tobring the action; (2) the amended complaint alleged conclusionsand failed to allege facts sufficient to state a cause of actionbased on an oral contract; (3) the amended complaint failed toallege the parties' counsel had authority to enter into such acontract; (4) plaintiffs' action was precluded by another actionpending between the same parties for the same cause; and (5) thealleged oral agreement was unenforceable under the statute offrauds.

On March 17, 2000, the trial Court granted St. Therese's andNorthern Illinois' motions to dismiss Landau's amended complaint. The order states in full:

"Defendants' Motions to Dismiss pursuant to 735 ILCS 5/2-615and 735 ILCS 5/2-619 is granted."

This appeal followed.

DECISION

"When ruling on a motion to dismiss under either section 2-615 or section 2-619 of the Code of Civil Procedure, the circuitcourt must interpret all pleadings and supporting documents inthe light most favorable to the nonmoving party." Dial Corp. v.Marine Office of America and Eagle Rigging Services, Inc., 318Ill. App. 3d 1056, 1060, 743 N.E.2d 621 (2001).

The trial court should grant the motion to dismiss only ifthe plaintiff can prove no set of facts that would support acause of action. Dial Corp., 318 Ill. App. 3d at 1060. "Conclusions of law or conclusions of fact which are unsupportedby specific factual allegations are not admitted." SBLAssociates v. Village of Elk Grove, 247 Ill. App. 3d 25, 29, 617N.E.2d 178 (1993).

We review de novo the dismissal of a complaint pursuant tosection 2-615 and section 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 1998)). Dial Corp., 318 Ill. App. 3d at 1060. Becausethe trial court did not specify any grounds it relied on indismissing plaintiffs' complaint, we will presume plaintiffs'complaint was dismissed on one of the grounds argued bydefendants. Storm & Associates, Ltd. v. Cuculich, 298 Ill. App.3d 1040, 1046, 700 N.E.2d 202 (1998). We may affirm the trialcourt on any basis in the record. McGuire v. Ameritech CellularCorporation, 314 Ill. App. 3d 83, 85, 731 N.E.2d 343 (2000).

Here, Landau contends the trial court "erred in dismissingthe amended complaint for declaratory judgment and otherequitable relief based on St. Therese's agreement not to executethe indemnity judgment against plaintiffs' former client,Northern Illinois, ***."

St. Therese and Northern Illinois offer several reasons whythe trial court was correct to have dismissed Landau's amendedcomplaint. We agree with one of them. We find Landau lacksstanding to assert its causes of action against St. Therese andNorthern Illinois. See Kaden v. Aurelia Pucinski, 287 Ill. App.3d 546, 550, 678 N.E.2d 792 (1997) (Lack of standing is properlybrought forth in a motion to dismiss pursuant to section 2-619).

STANDING

"[S]tanding in Illinois requires only some injury in fact toa legally cognizable interest." Greer v. Illinois HousingDevelopment Authority, 122 Ill. 2d 462, 492, 524 N.E.2d 561(1988). "The doctrine of standing requires that a party have areal interest in the action brought and its outcome." Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 146,688 N.E.2d 90 (1997).

The claimed injury must be distinct, traceable to thedefendant's actions, and substantially likely to be prevented orredressed by the grant of the requested relief. Greer, 122 Ill.2d at 493.

"The doctrine is used to insure that the courts areavailable to decide actual, specific controversies between theparties and are not overwhelmed in the mire of abstractquestions, moot issues, or cases brought on behalf of other parties who do not desire judicial aid." Inland Real EstateCorp. v. Tower Construction Co., 174 Ill. App. 3d 421, 424, 528N.E.2d 421 (1988).

The question before us is whether, for purposes of thislawsuit, Landau has a legally protected interest in the alleged"oral agreement" between St. Therese and Northern Illinois.

Landau contends it is "clearly threatened with an injury toa legally recognized interest [because] it represented NorthernIllinois in reaching the agreement with St. Therese and has beensued by Northern Illinois for legal malpractice alleging asdamages a judgment which cannot be collected pursuant to theagreement."

Landau suggests it has "an obvious interest in having theagreement enforced and will be benefitted by the relief it seeksin this action, since enforcement of the agreement wouldcompletely defeat Northern Illinois' pending malpractice claim." (Emphasis added.) Landau contends "[u]nless the agreement isenforced, Landau could be liable for in excess of $4 million andNorthern Illinois will be unjustly enriched in that amount." (Emphasis added.)

Defendants respond that without any factual assertionsshowing the existence of a contractual relationship betweenLandau and St. Therese and Northern Illinois, the trial courtproperly dismissed those counts "premised on the existence of analleged agreement between St. Therese and [Northern Illinois]." See Gallagher Corp. v. Steven B. Russ, 309 Ill. App. 3d 192, 199,721 N.E.2d 605 (1999) (generally, only a party to a contract, orone in privity with a party, may sue on a contract). We agree.

In Weihl v. Dixon, 56 Ill. App. 3d 251, 371 N.E.2d 881(1977), an attorney sued the Illinois Secretary of State in anaction seeking a declaration that a single-shareholdercorporation, permitted under Illinois law, need not engageanother person to serve as secretary. The court affirmed thetrial judge's dismissal of the action on the ground the attorneylacked standing to sue, despite his contention he had manysingle-shareholder corporate clients. The court said:

"Moreover, that the instant action involves questionsdirectly affecting the interests of plaintiff's clients cangive him no more right, title or interest in the subjectmatter of the controversy than a physician would have to thebody of his patient. No annual report of plaintiff's wasrefused by defendant but only those of plaintiff's clients. It is they whose rights were allegedly infringed and thus itis they who must seek redress. Plaintiff may not invoke aremedy on behalf of others who do not seek or desire it.Consequently we find plaintiff lacks standing to bring theinstant action." Weihl, 56 Ill. App. 3d at 255.

Here, Landau seeks to have St. Therese and NorthernIllinois' "rights and obligations declared and enforced to avoidan unjust result." Nothing in the alleged St. Therese/NorthernIllinois agreement gives Landau standing to sue. See also InlandReal Estate Corp., 174 Ill. App. 3d at 427 (Standing is meant to"preclude persons having no interest in the controversy frombringing suit").

Landau was not a party to the alleged St. Therese/NorthernIllinois agreement. Moreover, Landau never claimed the allegedSt. Therese/Northern Illinois agreement was made for its benefitnor did it ever claim to be a third-party beneficiary to theagreement.

The relationship Landau had with Northern Illinois did notgrant any authority to Landau to enforce the alleged St.Therese/Northern Illinois agreement.

If there is a controversy here, it is between St. Thereseand Northern Illinois. There may be a time and place to litigatethe existence of an "assurance" by Northern Illinois, but this isnot it. In short, Landau is not a party to any alleged oralcontract and we find no authority that allows him to seek toenforce it. See Weihl, 56 Ill. App. 3d at 254.

Landau asks us to delve into the motives of St. Therese andNorthern Illinois for behaving the way they have. That is, whythe promise to forbear enforcement in the first place? Why nottry to enforce the indemnity judgment? Is Landau being set upfor an improper windfall judgment?

While the motivational inquiry we are asked to make might beinteresting, it would not, in the end, be very useful. In fact,it would deter us from the controlling ultimate fact in thiscase: the promise, if it exists, is not Landau's to enforce. Atleast, not here and now.

Landau also urges us to consider section 2-406(b) of theCode (735 ILCS 5/2-406(b) (West 1998)). It contends "standing isalso established by the rules governing third-party practice." Since there is no third-party defendant in this case, we fail tosee how a rule devised to protect a third-party defendant wouldapply.

Because each of the four counts of Landau's amendedcomplaint seeks relief based on an alleged oral contract betweenSt. Therese and Northern Illinois, Landau lacks standing withrespect to all of the counts in its amended complaint.

CONCLUSION

We affirm the trial court's grant of St. Therese's andNorthern Illinois' motions to dismiss the amended complaintbecause Landau lacks standing to bring this action.

Affirmed.

CERDA, and BURKE, JJ., concurring.