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Plaintiff, William R. Mitchell, appeals from an order of the circuit court of Cook Countygranting summary judgment in his legal malpractice claim in favor of defendants, Schain, Fursel& Burney, Ltd., and James Graney. Plaintiff contends that the circuit court erred in concludingthat, as a matter of law, defendants' conduct was not the proximate cause of the loss of hisunderlying claim, and erred in finding that the negligence of successor counsel acted as asuperseding cause of the loss sufficient to break the chain of causation. For the followingreasons, we affirm the judgment of the circuit court.

The following facts are adduced from the record. In 1989, plaintiff retained defendants torepresent him in a property dispute with a developer and adjacent neighbor of plaintiff's, A.Fanizza. On September 10, 1990, the court granted plaintiff's summary judgment motion as tothe liability of Fanizza and set the matter for hearing on September 24, 1990, to prove updamages. On August 14, 1991, the case was dismissed for want of prosecution (DWP). Plaintiffwas not aware of the DWP. He alleged that he was told by defendants that his case was pendingand there was no settlement offer or disposition in the near future. Thereafter, in January 1992,he discharged defendants and retained attorney Steven Koukios to represent him in his lawsuitagainst Fanizza.

In late December of 1995, Koukios summoned plaintiff to his office and informedplaintiff that he had not filed any pleadings on his behalf; he had another client by the name ofMitchell, and had gotten the two files confused. Meanwhile, the DWP had never been vacated,and the right to reinstate plaintiff's action against Fanizza under the savings provision providedby section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 1994)) had expired. On December 16, 1997, plaintiff filed his claim for legal malpractice against defendantsand his successor counsel, Koukios. In turn, defendants filed a third-party complaint forcontribution against Koukios. Thereafter, on March 30, 2000, defendants moved for summaryjudgment, arguing that because plaintiff's cause of action remained viable at the time defendantswere discharged, they were not the proximate cause of plaintiff's damages as a matter of law. The circuit court granted defendants' motion for summary judgment. Plaintiff eventually reacheda settlement with Koukios in May 2001, and on May 8, 2001, the court dismissed all remainingclaims.

Plaintiff contends that the circuit court erred in granting summary judgment because itcould not be determined as a matter of law that Koukios was a superseding cause of his damages. He argues that but for defendants' alleged breach of their duties, plaintiff would not have beenforeclosed from pursuing his cause of action and obtaining a judgment. Summary judgmentshould be granted where there is no genuine issue as to any material fact and the moving party isentitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000); Petrovich v. ShareHealth Plan of Illinois, Inc., 188 Ill. 2d 17, 30-31, 719 N.E.2d 756, 764 (1999). Summaryjudgment can aid in the expeditious disposition of a lawsuit, but it is a drastic measure andshould be allowed only "when the right of the moving party is clear and free from doubt." Purtillv. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). If the plaintiff fails to establish anyelement of his claim, summary judgment is appropriate. Pyne v. Witmer, 129 Ill. 2d 351, 358,543 N.E.2d 1304, 1307 (1989). Our standard of review is de novo (Jones v. Chicago HMO Ltd.of Illinois, 191 Ill. 2d 278, 291, 730 N.E.2d 1119, 1127 (2000)), and we may affirm on any basisfound in the record (Alliance Syndicate, Inc. v. Parsec, Inc., 318 Ill. App. 3d 590, 599, 741N.E.2d 1039, 1045 (2000)).

To prevail in an action for legal malpractice, a plaintiff must plead and prove thefollowing elements: (1) an attorney-client relationship that establishes a duty on the part of theattorney; (2) a negligent act or omission constituting a breach of that duty; (3) proximate causeestablishing that "but for" the attorney's malpractice, the plaintiff would have prevailed in theunderlying action; and (4) actual damages. Owens v. McDermott, Will & Emery, 316 Ill. App.3d 340, 351, 736 N.E.2d 145, 155 (2000). We recognize that, in assessing the damage inflictedby legal malpractice, prime consideration must be given to the situation in which the client wasplaced at the time of the termination of the legal services. Schulte v. Burch, 151 Ill. App. 3d332, 334, 502 N.E.2d 856, 858 (1986).

For example, in Land v. Greenwood, 133 Ill. App. 3d 537, 428 N.E.2d 1203 (1985), theplaintiff had two attorneys in the underlying suit. The first failed to serve several defendantswith process and then withdrew from the case. A second attorney assumed handling of the case. Four to five months after the second attorney was retained, the defendants were finally servedwith process. Those defendants filed motions to dismiss for lack of due diligence in theprosecution of the case. The trial court dismissed the case with prejudice. The plaintiff thensued his original attorney for legal malpractice, claiming that the dismissal was caused by theinactions of his first attorney. Land, 133 Ill. App. 3d at 538-39, 428 N.E.2d at 1204-05.

In holding that under this particular set of facts plaintiff could not state a case of legalmalpractice against the discharged attorney, the court noted that successor counsel had a duty topreserve his client's cause of action. "It was viable when he received it; it was not when he gotthrough with it." 133 Ill. App. 3d at 540, 428 N.E.2d at 1205. The court explained that plaintiff'ssuccessor attorney had an absolute right to voluntarily dismiss the suit before the trial court'sorder of dismissal. "The cause of action was viable at the time of [the first attorney's] discharge. It therefore follows that plaintiff can prove no set of facts which connect defendant's conductwith any damage sustained by plaintiff."⁽¹⁾ Land, 133 Ill. App. 3d at 541, 478 N.E.2d at 1206. SeeKozmol v. Law Firm of Allen L. Rothenberg, 241 A.D.2d 484, 485-86, 660 N.Y.S.2d 63, 64(1997) (defendants could not be held liable for loss of client's cause of action despite failure toeffect valid service on client's adversary, resulting in dismissal, where successor counsel, retainedprior to dismissal, could have commenced a new action); see also McGee v. Danz, 261 Ill. App.3d 232, 237, 633 N.E.2d 234, 237 (1994) (where plaintiff discharged defendant prior to therunning of the applicable statute of limitations, as a matter of law, defendant was not liable forlegal malpractice for failing to file a claim against third parties prior to expiration of statute oflimitations); Harvey v. Mackay, 109 Ill. App. 3d 582, 587, 440 N.E.2d 1022, 1026 (1982)(holding that an attorney who fails to file suit within the applicable statute of limitations may notbe sued for malpractice when the attorney withdrew more than a year before the limitationsperiod ran); Frazier v. Effman, 501 So. 2d 114, 116 (Fla. App. 1987) (where second attorney hassufficient time to rectify problem before statute of limitation ran, first attorney not liable even ifsecond attorney was not specifically notified of problem).

We recognize that there may be circumstances where the first attorney could be held to bea proximate cause of plaintiff's damages where his acts or omissions leave doubt about thesubsequent viability of plaintiff's claim after his representation ends, such as when a statute oflimitations expires one day after an attorney ceases representation and a new attorney could notreasonably recognize that problem in the time allowed. In those cases, it would be for the jury todetermine whether the case was in fact reasonably "viable" at the time of discharge. Reasonableminds could differ as to whether the first attorney's actions or omissions were a proximate causeof plaintiff's injury. See, e.g., Villarreal v. Cooper, 673 S.W.2d 631, 633-34 (Tex. Ct. App.1984) (where there were only 77 days before statute of limitations ran, question remainedwhether enough time existed for successor counsel to take proper action). We merely hold thatthose circumstances are not present here.

In the present case, at the time defendants were discharged in January 1992, successorcounsel had been retained and had an absolute right to refile the case under section 13-217 withinone year from the date of the DWP, or until the statute of limitations ran on plaintiff's underlyingclaim, whichever was greater. 735 ILCS 5/13-217 (West 1994). The statute of limitations fordamage to real property would have been five years from the date of his underlying injury whichoccurred in 1989. 735 ILCS 5/13-205 (West 1994). Thus, successor counsel had from January1992, when he was retained, until 1994 to refile plaintiff's cause of action. There is no questionthat plaintiff's cause of action was viable, as a matter of law, well after defendants weredischarged and successor counsel was retained. It therefore follows that defendants' allegednegligence did not cause plaintiff's damages, the loss of a viable cause of action.

We are not persuaded by plaintiff's cited cases from other jurisdictions. Plaintiff relies onCollins v. Greenstein, 61 Haw. 26, 595 P.2d 275 (1979), Wimsatt v. Haydon Oil Co., 414S.W.2d 908 (Ky. 1967), and Cline v. Watkins, 66 Cal. App. 3d 174, 135 Cal. Rptr. 838 (1977)for the proposition that it is for the jury to determine whether successor counsel's failure to curethe negligence of the first counsel represents a superseding cause of the plaintiff's injury. Whilewe do not disagree with that general proposition, these cases do not address the unique set ofcircumstances in this case. Here, we are dealing with a savings provision under which plaintiffhad an absolute right to refile his cause of action for two years after defendants were discharged.

In Collins, the first attorney failed to allege affirmative defenses in the answer to acomplaint filed against the plaintiff. When successor counsel, retained one month before trial,moved to amend the answer to include affirmative defenses, the motion was denied. The courtheld that based upon this evidence, a jury could reasonably conclude that the first attorney'sconduct was a substantial factor in successor counsel's inability to amend the answer and couldhave been a foreseeable cause of plaintiff's injury. Collins, 61 Haw. at 46, 595 P.2d at 286.

In Wimsatt, the first attorneys brought suit on behalf of the plaintiff for the death of hiswife and for property damage resulting from an automobile accident. They failed to present aclaim for the plaintiff's own personal injuries within the limitations period of one year. The firstattorneys were subsequently discharged, and when successor counsel attempted to amend thecomplaint, the cause of action was dismissed as being barred by the statute of limitations. Afterbeing sued, the first attorneys argued that their inaction was not the proximate cause of theplaintiff's damages, as successor counsel should have appealed the erroneous dismissal becausethe new action related back to the time of the original complaint.

The court noted that the second attorney was not negligent or remiss in seeking to undothe legal harm caused by the alleged negligence of the first attorneys. It would require far toogreat a burden to impose upon a lawyer to foretell that such an appeal would be fruitful. Thecourt held that the unsuccessful efforts of the second attorneys fell within the risk created by thenegligence of the first attorneys. Wimsatt, 414 S.W.2d at 912.

Thus, in Collins and Wimsatt, there was a question for the jury whether a viable cause ofaction still remained after the first attorney was discharged. Here, there is no question thatplaintiff had an absolute right to refile his cause of action for two years after defendants weredischarged. It cannot be said that "but for" defendants' alleged breach of their duties, plaintiffwas foreclosed from pursuing his underlying cause of action and obtaining a judgment.

Accordingly, for the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN and KARNEZIS, JJ., concur.