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                                                                                                                                                             FIRST DIVISION
                                                                                                                                                             December 12, 2005

JUSTICE GORDON delivered the opinion of the court:

This is an appeal from a dismissal of a legal malpractice action. After Elizabeth Lopez,the daughter of plaintiff Jose Lopez, drowned in a pool that was allegedly maintained by theRockford School District, Lopez retained defendant Clifford Law Offices (the Clifford firm) torepresent him and Elizabeth's estate in a wrongful death action. Several months later, defendantThomas K. Prindable, an attorney with the Clifford firm, wrote to Lopez, informing him that thefirm was unable to continue representing him and the estate. Prindable's letter incorrectlyadvised Lopez that the applicable statute of limitations was two years, when, in fact, it was onlyone year from the date of Elizabeth's death. Ultimately, another attorney--whom Lopez retainedafter the expiration of the one-year statute of limitations applicable to municipalities, but beforethe second anniversary of Elizabeth's death--filed the wrongful death action. However, becausethe wrongful death action was filed after the expiration of the applicable statute of limitations, itwas dismissed.

The Clifford firm and Prindable (collectively, the Clifford defendants), as well asdefendant William King, an attorney who referred Lopez to the Clifford firm, separately movedto dismiss the malpractice action pursuant to section 2-619(a)(9) of the Code of Civil Procedure(735 ILCS 5/2-619(a)(9) (West 2002)) on the grounds that the wrongful death action was stillviable when the Clifford firm ceased to represent the estate. The circuit court granted themotions to dismiss. For the reasons that follow, we reverse and remand.

BACKGROUND Lopez initially filed his malpractice action against the Clifford defendants alone. In hisAugust 19, 2003, complaint, Lopez alleged the following. Elizabeth died on February 20, 2001. Shortly thereafter, Lopez retained the Clifford firm "for the purpose of advising [him] of his legalrights."⁽¹⁾ At all pertinent times, Prindable was an employee, servant and/or agent of the Cliffordfirm and acting within the scope of his agency. On August 20, 2001, Prindable wrote to Lopez aletter which stated, in pertinent part:

"I am writing *** to confirm our telephone conversation in August 14,2001, wherein I informed you that Clifford Law Offices is unable to continue toassume professional responsibility on behalf of the Estate of your daughter,Elizabeth, as a result of her tragic death on February 20, 2001. This decision doesnot represent an opinion as to the merit of any cause of action the Estate mayhave.

Please be advised that the statute of limitations in Illinois provides that acivil action to recover compensation for your daughter's injuries must be filedwithin two years after the cause of action occurred. Therefore, should you decideto pursue this matter further, we respectfully suggest that you contact an attorneyof your choice immediately so that the Estate's legal rights may be fully protected. Do not delay."

The letter was attached as an exhibit to the malpractice complaint. Lopez alleged that Prindable'sadvice as to the statute of limitations, upon which he reasonably relied, was incorrect because theRockford School District was a "local public entity" within the meaning of the LocalGovernmental and Governmental Employees Tort Immunity Act (hereinafter, the Tort ImmunityAct) (see 745 ILCS 10/1-206 (West 2000)) and no civil action may be commenced against a"local public entity" after one year from the date of the injury (see 745 ILCS 10/8-101 (West2000)). Lopez claimed that as a result of the Clifford defendants' negligence, he and the estateirrevocably lost their rights of action, and had the wrongful death action not been abortedbecause of the statute of limitations defense, it would have succeeded on the merits. AlthoughLopez subsequently amended his complaint several times, these allegations remained unchangedthroughout.

The record shows that in September of 2001, shortly after the Clifford defendantsterminated their attorney-client relationship with Lopez but before the one-year statute oflimitations would have expired, Lopez consulted with another attorney, Joseph Loran, aboutrepresenting him and the estate in the wrongful death action. By a letter dated October 5, 2001,Loran declined to take the case. On March 22, 2002, a month after the one-year period oflimitations expired, but almost a full year before a two-year period of limitations would have run,Lopez consulted yet another attorney regarding the wrongful death matter. That attorneyinformed Lopez that his previous attorney may have committed malpractice in letting the statuteof limitations expire. The record indicates that Lopez did not consult any attorneys in the periodbetween October 5, 2001, and March 22, 2002.

In their section 2-619(a)(9) motion to dismiss,⁽²⁾ the Clifford defendants urged that themalpractice action against them could not stand because they terminated their attorney-clientrelationship with Lopez within the one-year limitations period when the wrongful death actionwas still viable and, furthermore, Loran's "intervention" within that one-year period extinguishedany duty the Clifford defendants owed to Lopez. In support, among other things, the Clifforddefendants attached Loran's October 5, 2001, letter to Lopez, wherein Loran stated, in pertinentpart:

"I have come to the conclusion that I do not believe I can accept representation ofyour daughter's claim. Other attorney's [sic] may feel differently and I encourageyou to contact other lawyers.

Please be advised that all lawsuits are limited by a period prescribed bystatute. You need to have your daughter's case filed within the applicablelimitations period. If you do not do so, you may lose whatever rights you have torecovery."

On February 17, 2004, Lopez filed an amended complaint, adding King as a respondentin discovery, and on March 10, 2004, Lopez filed a second amended complaint, adding Loranand Loran's firm as respondents in discovery.

To assist in formulating his response, Lopez moved to take a discovery deposition ofLoran to determine whether an attorney-client relationship was ever undertaken by him. In thedeposition, the transcript of which was attached as an exhibit to Lopez's response to the motionto dismiss, Loran testified that he had met with Lopez on one occasion in September of 2001. During that meeting, Loran was trying to obtain an understanding of the facts surroundingElizabeth's death and did not discuss legal issues. At the end of the meeting, Loran told Lopezthat he would contact Prindable in order to determine whether to undertake the representation ofthe Lopez family. After discussing the matter with Prindable, Loran decided not to take theLopez case. According to Loran, he never entered into a retainer agreement with Lopez and didnot ask for or obtain Elizabeth's medical records or a coroner's report. Nor did Loran open a fileor assign a case number to the Lopez matter. After sending the October 5, 2001, letter, Loranhad no further contact with Lopez.

Loran's account was corroborated by Lopez's affidavit, which was also attached as anexhibit to the response to the motion to dismiss. In his affidavit, Lopez stated that Loran neversaid he would accept the matter and did not discuss the statute of limitations. Lopez additionallystated that had he known that the statute of limitations was one year, rather than two, he wouldhave sought another attorney immediately after being turned down by Loran.

Consequently, in his response to the Clifford defendants' motion to dismiss, Lopez arguedthat the motion should be denied because Loran was never retained as an attorney in thewrongful death matter and, therefore, had no duty to correct the Clifford defendants' incorrectadvice. Lopez additionally asserted that Loran did not voluntarily undertake a duty to providehim legal advice and did not offer advice regarding the statute of limitations. Lopez thereforeargued that Loran's actions did not break the causal chain between the Clifford defendants'negligence and the ultimate barring of the cause of action by the expiration of the statute oflimitations. In the alternative, even if Loran could be regarded as a tortfeasor, Lopez argued thatthe Clifford defendants and Loran would be joint tortfeasors, which would preclude dismissal.

The circuit court, however, agreed with the Clifford defendants that the legal malpracticeclaim against them could not stand because the wrongful death action was still viable when theattorney-client relationship between them and Lopez came to an end. On April 12, 2004, thecourt granted the Clifford defendants' motion to dismiss.

Shortly thereafter, on April 20, 2004, Lopez moved for leave to amend his secondamended complaint. Lopez sought to convert King from a respondent-in-discovery to adefendant. The circuit court granted that motion, and on May 4, 2004, Lopez filed his thirdamended complaint, which added a count against King, wherein Lopez alleged that King was theattorney who initially referred him to the Clifford firm and that King had "agreed to assume thesame legal responsibility for the performance of the legal services as the [Clifford firm]." Itappears from the record that although the circuit court allowed Lopez to file the third amendedcomplaint, the court reaffirmed its earlier dismissal of the count against the Clifford defendants.

On April 27, 2004, while the motion to amend was pending, Lopez filed a motion toreconsider and vacate the circuit court's ruling granting the Clifford defendants' motion todismiss. Lopez urged that the circuit court's ruling was problematic because it placed the burdenof uncovering and remedying bad legal advice onto the client untrained in the practice of law.

On June 2, 2004, the circuit court denied Lopez's motion to reconsider and made aSupreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) finding that there was no just reason for delayof enforcement or appeal of its decision dismissing the Clifford defendants with prejudice. OnJune 23, 2004, Lopez timely filed a notice of appeal as to the Clifford defendants.

On July 29, 2004, King moved, pursuant to section 2-619(a)(9), to dismiss the countagainst him, asserting the same grounds as the Clifford defendants. On October 6, 2004, thecircuit court granted King's motion, with prejudice. On October 19, 2004, Lopez timely filed anotice of appeal as to King. We granted Lopez's motion to consolidate the two appeals.

ANALYSIS On appeal, Lopez admits that his relationship with the Clifford firm was terminated whenthere were still six months left on the limitations period and that he subsequently consulted withLoran, who declined to take his case on October 5, 2001. Lopez, however, contends that none ofthese facts are proper grounds for dismissal since he reasonably relied on the advice inPrindable's letter that the applicable statute of limitations was two years, and thereforePrindable's advice was the proximate cause of his and the estate's legal injuries. In response, theClifford defendants⁽³⁾ argue that dismissal was proper for the following alternative reasons: (1)they withdrew when the action was still viable; (2) they should be absolved of liability becauseof Lopez's intervening consultation with Loran; and (3) Lopez did not reasonably rely onPrindable's statute of limitations advice.

Because this matter comes to us on a section 2-619 dismissal, our review is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735(1993). A claim may be dismissed pursuant to section 2-619(a)(9) if it "is barred by otheraffirmative matter avoiding the legal effect of or defeating [it]." 735 ILCS 5/2-619(a)(9) (West2002). In ruling on a section 2-619 motion to dismiss, the circuit court may consider externalsubmissions of the parties, including depositions and affidavits. Zedella v. Gibson, 165 Ill. 2d181, 185, 650 N.E.2d 1000, 1002 (1995). If a claim was thus dismissed,

"[t]he question on appeal is 'whether the existence of a genuine issue of materialfact should have precluded the dismissal or, absent such an issue of fact, whetherdismissal is proper as a matter of law.' " Zedella, 165 Ill. 2d at 185-86, quotingHodge, 156 Ill. 2d at 116-17.

Upon review, all well-pleaded facts, as well as reasonable inferences to be drawn from thosefacts, are taken as true. Keef v. Widuch, 321 Ill. App. 3d 571, 576, 747 N.E.2d 992, 997 (2001).

It is well established that the elements of a legal malpractice action in Illinois are: (1) theexistence of an attorney-client relationship 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; and (4)damages. Paulsen v. Cochran, 356 Ill. App. 3d 354, 358, 826 N.E.2d 526, 530 (2005); Cedeno v.Gumbiner, 347 Ill. App. 3d 169, 174, 806 N.E.2d 1188, 1192 (2004); Mitchell v. Schain, Fursel& Burney, Ltd., 332 Ill. App. 3d 618, 620, 773 N.E.2d 1192, 1193-94 (2002); Goran v.Glieberman, 276 Ill. App. 3d 590, 593, 659 N.E.2d 56, 58 (1995); Majumdar v. Lurie, 274 Ill.App. 3d 267, 270, 653 N.E.2d 915, 918 (1995); Skorek v. Przybylo, 256 Ill. App. 3d 288, 290,628 N.E.2d 738, 739-40 (1993). In a legal malpractice action, ordinary negligence principlesapply. See Pelham v. Griesheimer, 92 Ill. 2d 13, 440 N.E.2d 96 (1982) (applying traditionalnegligence principles in a legal malpractice action); 7A C.J.S. Attorney & Client