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No. 3-02-0047

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

Modified Upon Denial of Rehearing

JUSTICE McDADE delivered the opinion of the court:

Plaintiffs, Donald Lee Brush, Deborah Brush, and DanielleBrush, brought an action for breach of fiduciary duty againsttheir attorneys Craig F. Pierce and Jesse R. Gilsdorf and theirlaw firm. The trial court ordered plaintiffs' request forpunitive damages stricken from the complaint. Plaintiffs filed aninterlocutory appeal pursuant to Supreme Court Rule 308(a)(134Ill. 2d R. 308(a)), which this court accepted. The sole questionon appeal is whether punitive damages are available in an actionfor breach of fiduciary duty against an attorney. We find thatthey are not and we affirm.

BACKGROUND

This appeal arises from an action brought by Jennifer Brush,the executrix of the estate of her deceased husband, MichaelBrush, to recover estate property from Michael's father, DonaldBrush and sister, Danielle Brush.

Michael suffered from an impulse disorder as a result of atraumatic brain injury sustained in a motorcycle accident inMarch 1997. His ability to function independently was alsoimpaired.

Following the accident, Michael was arrested more than eighttimes and was charged in McDonough County with trafficviolations, disorderly conduct offenses and one aggravatedbattery offense against a police officer. Michael's sister,Danielle, hired attorney Craig F. Pierce and his law firm, thePierce Law Offices, to represent Michael on these criminalcharges. Defendant Jesse R. Gilsdorf, then an assistant State'sAttorney, represented the State on several of these charges.Michael's fitness to stand trial became an issue, and Gilsdorfhad access to the report concerning Michael's confidentialpsychological examination. In November 1997, Michael was foundunfit.

Michael died of a gunshot wound on July 25, 1998. He wasintestate and his sole heir at law was his wife, Jennifer. OnJuly 17, eight days before his death, Michael transferred $60,000from a savings account he jointly held with Jennifer to a bankaccount under Donald's name.

At the time of his death, Michael lived, apparently alone,in a mobile home in which he had an equity interest ofapproximately $3,300. He owed the seller $1,700. In August of1998, Danielle contacted Pierce regarding Michael's estate.Pierce immediately prepared a small estate affidavit, withDanielle serving as executrix. Danielle moved into the mobilehome in the same month. In October 1998, Donald paid theremaining balance owing on the mobile home from the funds givento him by Michael in July 1998.

On February 11, 1999, Jennifer was named the independentadministrator of Michael's estate. Through her counsel, Jennifercontacted Donald and Danielle seeking the return of any propertybelonging to Michael's estate.

Donald and Danielle then requested Pierce to represent themagainst the property claim made by Jennifer. Citing to a possibleconflict of interest from his previous representation of Michael,Pierce referred Donald and Danielle to Gilsdorf, who had left theState's Attorney's office and had become an associate attorney atthe Pierce Law Offices.

Gilsdorf undertook the representation and Pierce agreed toserve as a consulting attorney. According to Donald and Danielle,neither Pierce nor Gilsdorf explained to them that Gilsdorf'sprevious prosecution of criminal charges against Michael and hisknowledge of Michael's confidential psychological report couldcreate a possible conflict of interest.

On December 16, 1999, Jennifer sued Donald and Danielle torecover estate property. Between November 1999 and May 2000,Jennifer made several written offers to settle her propertyclaims against Donald and Danielle. Jennifer moved to disqualifyattorneys Pierce, Gilsdorf and the Pierce Law Offices on July 12,2000, alleging Gilsdorf's conflict of interest. By October 25,2000, Pierce, Gilsdorf and the Pierce Law Offices had sought andwere granted leave to voluntarily withdraw as counsel for Donaldand Danielle.

On November 15, 2000, a judgment was entered against Donaldand Danielle in an amount exceeding Jennifer's settlement offers.

On June 4, 2001, Donald and Danielle filed an action forbreach of fiduciary duty against Pierce, Gilsdorf and their lawfirm. Plaintiffs essentially alleged that their attorneys failedto disclose to them: (1) possible conflicts of interest and (2)settlement offers from Jennifer. The complaint prayed for theforfeiture of defendants' compensation as well as the amount ofjudgment entered against Donald and Danielle.

Plaintiffs also sought punitive damages in connection withdefendants' alleged misconduct. Defendants moved to dismiss theprayer for punitive damages, and the trial court, in reliance onsection 2-1115 of the Illinois Code of Civil Procedure (735 ILCS5/2-1115 (West 1992)), ordered the prayer stricken from thecomplaint. The trial court also found that this matter involves aquestion of law on which there is substantial ground fordifference of opinion and that the immediate appeal of the matterwould materially advance the termination of the litigation.Pursuant to Illinois Supreme Court Rule 308(a)(134 Ill. 2d R.308(a)), plaintiffs filed an interlocutory appeal on January 19,2002.

ANALYSIS

I. The Applicability of Section 2-1115

On appeal, plaintiffs contend that section 2-1115 of theIllinois Code of Civil Procedure (735 ILCS 5/2-1115 (West 1992))does not bar punitive damages in an action for breach offiduciary duty. Section 2-1115 bars punitive damages in healingart and legal malpractice cases. It provides, in pertinent part:

"In all cases, whether in tort, contract orotherwise, in which the plaintiff seeksdamages by reason of legal, medical,hospital, or other healing art malpractice,no punitive, exemplary, vindictive oraggravated damages shall be allowed." 735ILCS 5/2-1115 (West 1992).

Despite the broad language provided by section 2-1115, thereis a split within the Illinois Appellate Court as to the scope ofthe prohibition of punitive damages. The First District hasconstrued the prohibition broadly, barring punitive damages evenif the malpractice constituted a fraud upon the plaintiff.Calhoun v. Rane, 234 Ill. App. 3d 90, 599 N.E.2d 1318 (1992).This district expressly disagreed with this broad prohibition. InCripe v. Leiter, 291 Ill. App. 3d 155, 683 N.E.2d 516 (1997), thedefendant attorney falsified bills with regard to the number ofhours that were spent on the client's case. The court reasonedthat although section 2-1115 precludes punitive awards in legalmalpractice suits, legal malpractice and common law fraud areseparate and distinct actions; therefore, punitive damages can beawarded in fraud cases. Cripe, 291 Ill. App. 3d at 159. Ourdecision in Cripe is not dispositive of the present case becausewe deal not with fraud but with fiduciary duty.

A fiduciary relationship exists as a matter of law betweenan attorney and his client. Drake v. Becker, 14 Ill. App. 3d 690,696, 303 N.E.2d 212 (1973). Thus, in effect any allegedmalpractice by an attorney also evidences a simultaneous breachof trust; however, that does not mean every cause of action forprofessional negligence also sets forth a separate andindependent cause of action for breach of fiduciary duty. Calhounv. Rane, 234 Ill. App. 3d 90, 95, 599 N.E.2d 1318 (1992).Instead, the availability of punitive damages depends on whether plaintiffs' breach of fiduciary duty claim falls within "therubric of [legal] malpractice." Owens v. McDermott, Will & Emery,316 Ill. App. 3d 340, 351, 736 N.E.2d 145 (2000). In other words,in determining the applicability of section 2-1115, the courtmust look to the "nature of the behavior alleged" in plaintiffs'complaint to "determine whether the activities fall within theterm 'legal malpractice'." Safeway Insurance Co. v. Spinak, 267Ill. App. 3d 513, 518, 641 N.E.2d 834, 837 (1994); Cripe, 291Ill. App. 3d at 158-59 (section 2-1115 is only applicable if theconduct alleged in the complaint amounts to legal malpractice).

According to Black's Law Dictionary, legal malpractice"[c]onsists of failure of an attorney to use such skill,prudence, and diligence as lawyers of ordinary skill and capacitycommonly possess and exercise in performance of tasks which theyundertake." Black's Law Dictionary 959 (6th ed. 1990). A reviewof the record before this court reveals that the complaintarticulates nothing more than an action for legal malpractice. Itessentially alleges that plaintiffs' injury was brought about bytwo related acts of misconduct, namely, defendants' failure toexplain the potential conflict of interest that existed betweenattorney Gilsdorf and Michael, and defendants' failure todisclose settlement offers. Both acts arose from the provision oflegal services. Here, because injury was suffered by reason ofthe attorneys' professional conduct during the course of legalrepresentation, the gravamen of the claim is legal malpractice,regardless of which theory or claim has been pled.

Furthermore, Illinois courts have repeatedly rejected breachof fiduciary duty claims brought against attorneys on the basisthat they are duplicative of negligence or malpractice claims.Neade v. Portes, 193 Ill. 2d 433, 739 N.E.2d 496 (2000). Forexample, in Calhoun, the client retained an attorney to representhim before the Illinois Industrial Commission. Although theattorney did file a petition with the Commission, he allowed itto be dismissed for want of prosecution, failed to vacate thedismissal, and failed to inform the client that the petition hadbeen dismissed. In the ensuing action by the client against theattorney, the court held that the client had failed todemonstrate a breach of fiduciary duty by the attorney apart fromprofessional negligence. Calhoun, 234 Ill. App. 3d at 95.

In this case, section 2-1115 applies to bar the punitivedamages claim.

II. Aggravating Circumstances 

Even if a breach of fiduciary duty claim were conceptuallydistinct from a claim for legal malpractice and plaintiffs'complaint sufficiently alleged every element of that claim,punitive damages still may not be warranted in this case. TheIllinois Supreme Court has upheld section 2-1115 as aconstitutional expression of a legitimate legislative goal,determining that it did not violate equal protection and dueprocess guarantees, the Illinois Constitution's single-subjectclause, or the ban on special legislation. Bernier v. Burris, 113Ill. 2d 219, 497 N.E.2d 763 (1986). The court recognized that thelegislature enacted this statute intending to prevent theimposition of excessive liability and undue burdens on providersof professional services. Bernier, 113 Ill. 2d at 246.

The supreme court has also instructed that because of theirpenal nature, punitive damages are not favored, and Illinoiscourts must be cautious in seeing that they are not improperly orunwisely awarded. In re Estate of Wernick, 127 Ill. 2d 61, 83,535 N.E.2d 876, 886 (1989); Kelsay v. Motorola, Inc., 74 Ill. 2d172, 188, 384 N.E.2d 353, 360 (1978). However, punitive damagesmay be warranted in cases where the wrongful act complained of ischaracterized by wantonness, malice, oppression or othercircumstances of aggravation. Wernick, 127 Ill. 2d at 83-84;Knierim v. Izzo, 22 Ill. 2d 73, 87, 174 N.E.2d 157, 165 (1961);Glass v. Burkett, 64 Ill. App. 3d 676, 683, 381 N.E.2d 821, 826(1978).

Such aggravating circumstances are not present in this case.Nothing in the facts alleged in the complaint imply that theattorneys' actions were willful or wanton. In light of the factsthat Michael Brush and his estate are separate persons and thatGilsdorf had never represented any party to the underlyingaction, the existence of a possible conflict of interest is notso readily apparent that the representation could be viewed aswillful and wanton misconduct. Moreover, assuming the truth ofplaintiffs' allegations , the non-disclosure of settlement offersto the client is a violation of professional obligations fallingsquarely within the parameters of legal representation. Webelieve these to be simple allegations of breach of fiduciaryduty falling within the rubric of legal malpractice and,therefore, insufficient for the purpose of awarding punitivedamages.

Plaintiffs cite In re Marriage of Pagano, 154 Ill. 2d 174,607 N.E.2d 1242 (1992), and Lurz v. Panek, 172 Ill. App. 3d 915,527 N.E.2d 663 (1988), to support their position regardingpunitive damages. However, the misconduct alleged by theplaintiffs in those cases occurred prior to the enactment ofsection 2-1115. Therefore, the portion of each opinion regardingpunitive damages arising from legal malpractice is not applicablefollowing the effective date of section 2-1115.

CONCLUSION

For the reasons discussed above, plaintiffs' breach offiduciary duty claim is not beyond the scope of section 2-1115.Their request for punitive damages is barred accordingly.

Affirmed.

LYTTON, P.J., and BRESLIN, J.,concur.