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FOURTH DIVISION
November 12, 2004

No. 1-03-3672

 

Plaintiff Marthe C. Purmal, an attorney, filed this legal malpractice action pro se againsther former lawyers, defendants Robert N. Wadington, Robert N. Wadington & Associates(Wadington & Associates), and Robert A. Kezelis (collectively, defendants). She now appealsfrom the trial court's orders dismissing her complaint upon defendants' motions to dismiss undersections 2-615 and 2-619 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615,5/2-619 (West 2002)). Additionally, Wadington cross-appeals from an order of the courtdismissing his cross-complaint upon Purmal's motion. For the following reasons, we affirm thedismissals of both Purmal's complaint and Wadington's cross-complaint.

This is the second time these parties have been before this court. In the first appeal,Purmal v. Cooke, No. 1-02-0004 (December 19, 2002) (unpublished under Supreme Court Rule23), we found the following facts. In May 1998, the firm of French, Kezelis & Kominiarek filed adefamation action on Purmal's behalf against her co-employee, Richard Cooke. Purmal'semployer, Continental Casualty Company (commonly known as CNA), provided a defense andstated that it would indemnify Cooke. Shortly thereafter, CNA terminated Purmal's employmentand she filed a federal employment discrimination action against CNA, which was unrelated to herdefamation case.

In March 2001, Kezelis terminated his employment at French, Kezelis & Kominiarek andaccepted a position at Wadington & Associates. Purmal agreed that Kezelis would continue torepresent her in the defamation action after he joined that firm. On March 13, 2001, Purmalsigned a contingency fee contract with Wadington & Associates. On April 17, 2001, the trialcourt entered an order substituting Wadington & Associates as Purmal's new counsel.

Thereafter, Purmal entered into negotiations with CNA concerning her federalemployment discrimination action. She agreed to dismiss her federal discrimination lawsuit withprejudice and with no payment to her. CNA negotiated with Purmal regarding her defamationaction, without any notice to Wadington & Associates. In August 2001, Purmal accepted asettlement agreement in which CNA agreed to pay her six yearly payments amounting to$219,332.94 to settle her defamation claim.

Purmal then terminated the legal services of Wadington & Associates and the firm filed amotion to withdraw from the case. At a hearing on November 1, 2001, Purmal and counsel forCNA acknowledged that a settlement had been reached. The court dismissed the case withprejudice and retained jurisdiction on the issue of attorney fees. Wadington & Associatespetitioned the court for one-third of the settlement pursuant to the March 13, 2001 contingencyfee contract between Purmal and Wadington & Associates. Wadington & Associates stated thatit had performed substantial work on Purmal's defamation claim, including reviewing the entirefile, performing legal research, communicating and meeting with Purmal, participating indiscovery production, preparing for depositions, attending court appearances and communicatingwith opposing counsel. In her response to Wadington & Associates' fee petition, Purmal statedthat the firm was not entitled to fees because it did not perform any work to effect a recovery. She argued that Wadington & Associates obtained her case file only two weeks before sheentered into a settlement with CNA. Wadington & Associates replied that Purmal did not settleher case until after she had voluntarily retained the firm pursuant to the contingency feeagreement.

On December 12, 2001, following a hearing, the trial court found that Purmal voluntarilyentered into an enforceable contingency fee contract and that Wadington & Associates wasentitled to one-third of all settlement monies. Purmal then appealed the trial court's ruling to thiscourt, alleging that Wadington & Associates' collection of one-third of the settlement constitutedan excessive fee under Rule 1.5 of the Rules of Professional Conduct. 134 Ill. 2d R. 1.5. In ourdecision, this court found, contrary to Purmal's claims, that Wadington & Associates presentedsufficient evidence of significant legal services rendered and that Kezelis was an experiencedattorney. Purmal v. Cooke, No. 1-02-0004 (December 19, 2002) (unpublished under SupremeCourt Rule 23). The court found no basis upon which to conclude that the trial court abused itsdiscretion in determining that Wadington & Associates was entitled to the fee stated in thecontingency fee agreement. Additionally, this court rejected Purmal's claims that she did notintend to hire Wadington & Associates as her attorneys based on the fact that the contingency feeagreement clearly stated that Purmal hired the firm and that Purmal voluntarily entered into thatagreement. Contrary to Purmal's contention that she fired that firm before any services wererendered, the court found that Wadington & Associates rendered significant legal services on herbehalf. This court then found nothing in the record or the contract to justify a departure from theagreement into which the parties entered and held "the parties to the terms of their agreement,"affirming the trial court's award of attorney fees to Wadington & Associates. Purmal filed apetition for rehearing to this court and a petition for leave to appeal to the Illinois Supreme Court,both of which were denied.

While her appeal was pending, Purmal filed the complaint at issue in this case. In count I,she alleged malpractice against Wadington individually. In count II against Wadington, shealleged "wilful and wanton malpractice" and sought punitive damages. In count III againstWadington and Wadington & Associates, Purmal alleged "tortious interference with contract." Incount IV against Wadington, she alleged that he committed fraud when he filed a petition forattorney fees on behalf of his firm when he knew that no work had been performed by him or hisfirm. In count V, she alleged malpractice against Kezelis, and in count VI,⁽¹⁾ she alleged "willfuland wanton malpractice" against Kezelis.

Wadington and Wadington & Associates filed a motion to dismiss under sections 2-615and 2-619, arguing that res judicata and collateral estoppel barred Purmal's claims based on thetrial and appellate courts' decisions in the fee petition action, she failed to plead sufficient facts tosupport her allegations, and punitive damages are not recoverable in a legal malpractice action. Kezelis also filed a motion to dismiss pursuant to sections 2-615 and 2-619, contending thatPurmal's claims were barred by res judicata and collateral estoppel and otherwise failed to state aclaim.

On January 30, 2003, the court granted both of defendants' motions to dismiss, dismissingall counts of the complaint under sections 2-615 and 2-619. The court gave Purmal leave toamend some of the allegations in the complaint, not including those claims dismissed pursuant tores judicata or collateral estoppel. Purmal then filed a motion to vacate that order, which wasdenied on May 8, 2003. Purmal's next motion, a motion to clarify these orders, was denied onNovember 14, 2003, when the court dismissed her entire complaint. Purmal then filed a timelynotice of appeal.

On July 16, 2003, Wadington filed an amended cross-complaint against Purmal for breachof contract.⁽²⁾ Purmal moved to dismiss this amended cross-complaint under sections 2-615 and 2-619, challenging Wadington's right to recover fees and arguing that his complaint did not state acause of action. On November 14, 2003, the court granted Purmal's motion to dismissWadington's cross-complaint. Wadington was allowed to file a late notice of cross-appeal.

We first review Purmal's appeal from the dismissal of her complaint under sections 2-615and 2-619 and address each count in turn. In ruling on a section 2-615 motion to dismiss, wemust accept all well-pleaded facts as true. Village of South Elgin v. Waste Management ofIllinois, Inc., 348 Ill. App. 3d 929, 930, 810 N.E.2d 658, 662 (2004). Similarly, a motion todismiss pursuant to section 2-619 admits all well-pleaded facts and the reasonable inferencescapable of being drawn therefrom. Waste Management of Illinois, Inc., 348 Ill. App. 3d at 930,810 N.E.2d at 662. However, conclusions of law and conclusory factual allegations notsupported by allegations of specific facts are not deemed admitted. Waste Management ofIllinois, Inc., 348 Ill. App. 3d at 930-31, 810 N.E.2d at 662. When ruling on either motion todismiss, the trial court interprets all pleadings and supporting documents in the light mostfavorable to the nonmoving party. Lucas v. Taylor, 349 Ill. App. 3d 995, 998, 812 N.E.2d 72, 75(2004). Illinois is a fact-pleading jurisdiction that requires a plaintiff to present a legally andfactually sufficient complaint and a plaintiff must allege sufficient facts to state all the elements ofthe asserted cause of action. Weis v. State Farm Mutual Automobile Insurance Co., 333 Ill. App.3d 402, 405, 776 N.E.2d 309, 311 (2002). We review the trial court order's dismissing plaintiff'scomplaint under sections 2-615 and 2-619 de novo. Martinez v. Department of Public Aid, 348Ill. App. 3d 788, 790, 810 N.E.2d 608, 610 (2004).

In count I, her malpractice claim against Wadington, Purmal alleged in paragraphs 11(a)and (b) that Wadington breached his fiduciary duties by failing to communicate with her in atimely fashion concerning his representation of her and failing to communicate in a timely fashionconcerning work done in the defamation action. In paragraph 11(h), she alleged that Wadington"breached the confidentiality terms of the Confidential Settlement Agreement [with CNA] bymaking it a part of the public record" in the defamation suit. Purmal alleged that as a direct resultof these breaches, she was prevented from collecting the settlement money and sought $500,000in damages. To prevail in an action for legal malpractice, a plaintiff must plead and prove thefollowing elements: (1) the existence of an attorney-client relationship which establishes a duty onthe 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's negligence, the plaintiff would haveprevailed in the underlying action; and (4) actual damages. Cedeno v. Gumbiner, 347 Ill. App. 3d169, 174, 806 N.E.2d 1188, 1192 (2004).

Here, Purmal's allegations in paragraphs (a), (b) and (h) fail to state a valid cause of actionfor legal malpractice because she failed to establish the element of proximate cause. First, Purmaldid prevail in the underlying litigation, the defamation suit, when she obtained a recovery pursuantto the settlement. Thus, she cannot plead and prove that but for Wadington's failure tocommunicate with her or his breach of confidentiality, she would have prevailed in the defamationsuit. Additionally, Purmal never states with specificity how Wadington's failure to communicateor his breach of the confidential settlement prevented her from collecting the settlement money. Further, she has not pled the element of actual damages sufficiently where her claimed damages of$500,000 are purely speculative. Mann v. Rowland, 342 Ill. App. 3d 827, 838-39, 795 N.E.2d924, 933 (2003) (where damages are speculative, actual damages are absent and no cause ofaction exists). Therefore, Purmal has failed to plead a valid cause of action for legal malpracticein paragraphs 11(a), (b) and (h) of count I.

Additionally, we find that Purmal's allegation in paragraph 21(e) of count V againstKezelis for malpractice also fails to state a claim upon which relief could be granted. In thatparagraph, Purmal alleged that Kezelis "breached attorney-client privilege by making variousrepresentation[s] in an affidavit that plaintiff had made certain statements to him during the timehe was representing her." She alleges that as a result of this breach, she was prevented from"collecting the settlement money in a timely fashion and she was unable to obtain a settlement ofthe [defamation] litigation for a fair and reasonable amount." Based on these statements, Purmalhas not established the element of proximate cause. The first statement regarding a breach ismerely a conclusion for which Purmal provides no factual support: she never explains whatrepresentations Kezelis made, in which affidavit he made them or what statements Purmalallegedly said to him during their relationship. She also never states with specificity how Kezelis'breach of the attorney-client privilege under these circumstances prevented her from collecting thesettlement money. These conclusory allegations are insufficient to state a cause of action for legalmalpractice against Kezelis. See Weis, 333 Ill. App. 3d at 410, 776 N.E.2d at 314 (without anyallegations of fact showing the elements of the cause of action, the complaint was insufficient).

Many of Purmal's allegations in her complaint, namely, paragraphs 11(c) through (g) incount I, all of count II, paragraphs 21(a) through (d) of count V and all of count VI, are barred bythe doctrine of res judicata based on the earlier decisions of the trial and appellate courts in thefee petition action. The doctrine of res judicata provides that a final judgment on the meritsrendered by a court of competent jurisdiction acts as an absolute bar to a subsequent actionbetween the same parties or their privies involving the same claim, demand or cause of action. Arvia v. Madigan, 209 Ill. 2d 520, 533, 809 N.E.2d 88, 97 (2004). The bar extends to all mattersthat were offered to sustain or defeat the claim in the first action, as well as all matters that couldhave been offered for that purpose. Arvia, 209 Ill. 2d at 533, 809 N.E.2d at 97. Res judicatapromotes judicial economy by requiring parties to litigate in one case all claims arising out of thesame group of operative facts. Mann, 342 Ill. App. 3d at 834, 795 N.E.2d at 929. The followingthree requirements must be met for the doctrine of res judicata to apply: (1) a court of competentjurisdiction rendered a final judgment on the merits; (2) there is an identity of parties or theirprivies; and (3) there is an identity of cause of action. Mann, 342 Ill. App. 3d at 834, 795 N.E.2dat 930.

The parties do not dispute that the trial court and appellate court decisions in the firstaction to resolve the contingency fee dispute were final judgments rendered on the merits bycourts of competent jurisdiction. Purmal seems to challenge, however, the element of privity. She argues that Wadington & Associates was the only party to the original fee petitionproceeding. Because Wadington and Kezelis were not parties, she contends, they "were notsubject to the jurisdiction of the court." We disagree.

First, it is undisputed that Purmal was a party to both actions. Second, the fee petitionwas brought by "Robert N. Wadington, as sole owner of Robert N. Wadington & Associates,"which implies that Wadington individually was a party to the suit. Even if Wadington &Associates was the only party, Wadington was a privy of Wadington & Associates where he wasthe sole owner of that firm. See Travelers Casualty & Surety Co. v. Madden, 346 Ill. App. 3d859, 865, 806 N.E.2d 245, 249 (2004) (finding the sole shareholder of a company to be in privitywith that company).

Additionally, we find that Kezelis was also in privity with Wadington & Associates. Withrespect to the doctrine of res judicata, there is no generally prevailing definition of "privity"which can automatically be applied to all cases; that determination requires a careful examinationinto the circumstances of each case. 23A Ill. L. & Prac. Judgments