Opinion
No. 1-05-1299
March 31, 2008.
Appeal from the Circuit Court of Cook County, No. 00 L 15059, Randye Kogan, Judge presiding.
The plaintiff, Sharon Wildey, filed a lawsuit for legal malpractice against the defendant, Mary Paulsen, in the circuit court of Cook County. Wildey argued that Paulsen's malpractice caused the reversal of a $178,000 judgment against her former fiancee. The trial court held that Paulsen committed legal malpractice and was liable for damages in the amount of $100. Wildey now appeals the order of the trial court. For the following reasons, we affirm the judgment of circuit court.
BACKGROUND
Sharon Wildey, an attorney licensed in Illinois, was engaged to marry Richard Springs. On or about April 27, 1992, Springs broke the engagement. Wildey subsequently decided to file a lawsuit against Springs under the Breach of Promise Act ( 740 ILCS 15/1 (West 1992)) (the Act).
Wildey sought the advice and counsel of her friend, the defendant, attorney Mary Paulsen, to discuss the lawsuit. Wildey and Paulsen first met for lunch and then at Paulsen's law office to discuss details of the Act and the facts of the case. Paulsen's law partner, Beth Havel, was present for the meeting in the law office. Wildey and Paulsen disagree whether Paulsen committed to represent Wildey at this meeting.
On June 12, 1992, Wildey sent a letter to Springs pursuant to the Act, declaring her intent to file suit against him. Wildey sent the letter to Springs to satisfy the notice requirement of the Act; however, all parties agree that the letter did not substantively comply with the pre-suit notice provisions of the Act because the letter failed to include the date that Wildey and Springs became engaged. Wildey also referenced Paulsen in the letter as her retained counsel. On June 18, 1992, Wildey faxed Paulsen a copy of the letter she sent to Springs. All parties agree that the period to send Springs proper notice ended July 28, 1992.
On June 23, 1992, Wildey and Paulsen met in Paulsen's law office to discuss the case. Wildey filled out an interview sheet at this meeting. Paulsen claims that she informed Wildey that her letter to Springs did not comply with the Act at this meeting. Wildey claims that Paulsen told her the letter was "fine." Neither Wildey nor Paulsen sent Springs a corrected letter that substantively complied with the Act. On July 16, 1992, Paulsen spent 90 minutes working on the complaint. On September 11, 1992, Wildey completed a retainer agreement with Paulsen. The agreement set forth that Wildey was to pay Paulsen $1,500 for the services rendered for this claim. Paulsen averred in her deposition that she never received any payment from Wildey for any services rendered.
On October 27, 1992, Wildey filed a complaint against Springs in the circuit court of Cook County under the Act. Paulsen was listed as the plaintiff's counsel on the complaint. The case was subsequently removed to federal court. The federal jury ultimately awarded Wildey $178,000, but the judge remitted the award to $118,000. Springs appealed the decision on the grounds that the presuit notice letter did not comply with the Act. The Court of Appeals for the Seventh Circuit reversed the verdict and held that Wildey's pre-suit notice letter did not meet the statutory requirements of the Act.Wildey v. Springs, 47 F.3d 1475, 1484-89 (7th Cir. 1995).
On July 5, 1995, Wildey filed a complaint against Paulsen in the circuit court of Cook County for legal malpractice. For Wildey to be successful, she had to prove: (1) the existence of an attorney-client relationship that establishes a duty on the part of Paulsen; (2) a negligent act or omission constituting a breach of that duty; (3) proximate cause; and (4) damages. Lopez v. Clifford Law Offices, P.C., 362 Ill. App. 3d 969, 974-75, 841 N.E.2d 465, 470-71 (2005). Wildey had to prove the underlying action and the damages owed by Springs absent Paulsen's alleged malpractice. First National Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 200, 872 N.E.2d 447, 467-68 (2007). Paulsen subsequently filed a motion for summary judgment in response to the complaint in which she argued that Wildey should only be able to recover actual damages. The trial court agreed. The trial court explained that under the Act, a plaintiff can only recover actual damages and cannot recover for anxiety or depression as Wildey sought to do. The court held that Wildey could only recover the cost expended for the wedding dress, reception, and invitations. The trial court also certified two questions for interlocutory review by the appellate court pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). The appellate court denied review of these questions and the matter proceeded in the trial court.
The case was subsequently assigned to another judge for a bench trial. That judge found that Wildey sufficiently proved that the attorney-client relationship formed prior to July 28, 1992. The court explained that even if the attorney-client relationship was formed merely so that Wildey would "appear" to be represented by counsel, the retainer agreement should have reflected the limitation of representation. The court also found that the notice letter was insufficient under the Act and that Paulsen, as the attorney for Wildey, failed to remedy the inadequacies of the notice before July 28, 1992. As to damages, the court held that based on the previous trial judge's ruling related to recoverable damages, Wildey could only recover for her actual damages incurred as a result of Paulsen's legal malpractice. Based on the evidence of damages Wildey presented during the bench trial, the court awarded Wildey $100 for alterations to her wedding dress. Wildey appealed the trial court's ruling and Paulsen cross-appealed.
ANALYSIS
On appeal, Wildey argues that she should be awarded the amount of the federal jury verdict of $178,000 or in the alternative $118,000. She argues that this is the value of the claim which was lost because of Paulsen's malpractice. Wildey also contends that the Act did not eliminate pain and suffering as a recoverable damage. She argues that mental injury is an actual damage. On cross-appeal, Paulsen argues that she and Wildey had no attorney-client relationship and, in the alternative, her representation was limited to ministerial functions only. Paulsen also contends that Wildey is not entitled to damages for pain and suffering because it is outside the scope of the Act.
We must determine whether the trial court's ruling is against the manifest weight of the evidence. General Motors Acceptance Corp. v. Stoval, 374 Ill. App. 3d 1064, 1072, 872 N.E.2d 91, 97-98 (2007). "A judgment is against the manifest weight of the evidence only when an opposite conclusion `"is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence."`" General Motors Acceptance Corp., 374 Ill. App. 3d at 1071, 872 N.E.2d at 98, quoting Avenaim v. Lubecke, 347 Ill. App. 3d 855, 861, 807 N.E.2d 1068 (2004), quoting Judgment Services Corp. v. Sullivan, 321 Ill. App. 3d 151, 154, 746 N.E.2d 827, 830-31 (2001).
To be successful in a legal malpractice action, a plaintiff must prove: (1) the existence 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. Lopez v. Clifford Law Offices, P.C., 362 Ill. App. 3d 969, 974-75, 841 N.E.2d 465, 470-71 (2005).
We first address the question of whether an attorney-client relationship existed. The attorney-client relationship is a consensual relationship that forms when the attorney and the client both consent to its formation. Simon v. Wilson, 291 Ill. App. 3d. 495, 509, 684 N.E.2d 791, 801 (1997). The attorney must indicate an acceptance of the authority to work on behalf of the client, and the client must authorize the attorney's ability to work on his behalf. Simon, 291 Ill. App. 3d. at 509, 684 N.E.2d at 801. "An attorney's duty to a client is measured by the representation sought by the client and the scope of the authority conferred." Simon, 291 Ill. App. 3d. at 509, 684 N.E.2d at 801.
In this case, the trial court held that the attorney-client relationship formed prior to July 28, 1992, the date when the period to send proper notice to Springs expired. The court reasoned that Wildey and Paulsen had multiple meetings prior to July 28, 1992, that formed the attorney-client relationship. During this time, Wildey and Paulsen met numerous times to discuss the case, Wildey filed the complaint against Springs with Paulsen named as counsel, and Paulsen billed Wildey for at least 90 minutes of work on the complaint. The court explained that these acts were sufficient to establish that Paulsen represented Wildey in more than a ministerial capacity. We agree.
Paulsen claims that she was only to "appear" as Wildey's attorney to demonstrate to Springs Wildey's intent to pursue the claim. However, Paulsen's own account of her work with Wildey goes beyond this limited capacity. Paulsen worked on the complaint, billed 90 minutes for that work, and met with Wildey multiple times to discuss the case. Paulsen's own behavior places her outside a "purely ministerial" capacity. Additionally, even if Paulsen represented Wildey in this limited capacity, Paulsen still had a duty to provide competent representation and advice. Although an attorney can limit his or her representation through a retainer agreement, an attorney still has a duty to provide competent representation and provide advice about legal remedies. Keef v. Widuch, 321 Ill. App. 3d. 571, 585-86, 747 N.E.2d 992, 998-99 (2001). Paulsen knew that the notice letter did not comply with the Act; however, she still continued to work on the complaint and appeared as Wildey's counsel when the complaint was filed in the circuit court of Cook County. We find that a reasonable attorney that continued to work on the case would have cured the defective notice letter. Thus, the trial court's holding was not against the manifest weight of the evidence.
Next, Wildey argues that she is entitled to the amount of damages originally awarded by the federal jury verdict in the amount of $178,000 or in the alternative $118,000. She also argues that the Act did not eliminate pain and suffering as a recoverable damage and that mental injury is an actual damage. We disagree.
In a legal malpractice action, the plaintiff must "essentially prove a `case within a case.'" First National Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 200, 872 N.E.2d 447, 467-68 (2007). The plaintiff must prove the underlying action and the damages owed by the third party absent the alleged malpractice. First National Bank of LaGrange, 375 Ill. App. 3d at 200, 872 N.E.2d at 467-68. Damages are not presumed, and the plaintiff must prove the damages she suffered as a result of the malpractice. First National Bank of LaGrange, 375 Ill. App. 3d at 200, 872 N.E.2d at 467-68.
In this case, Wildey established that she incurred $100 worth of damages from the breach of promise to marry lawsuit. This amount constitutes her damages resulting from Paulsen's malpractice. We reject Wildey's argument that she is entitled to the amount of the original federal jury verdict. As the trial court correctly held, the federal jury verdict in Wildey's breach of promise lawsuit was reversed and therefore no longer exists. Wildey erroneously relies on Gruse v. Belline, 138 Ill. App. 3d 689, 486 N.E.2d 398 (1985), in arguing that the judgment is valid evidence of her damages. That case is readily distinguishable. In that case, the plaintiff had a valid judgment entered against him because of the defendant's malpractice. In the case before us, no valid judgment exists in the underlying breach of promise to marry lawsuit. Thus, Wildey had a duty to prove the damages she suffered as a result of Paulsen's malpractice. In the bench trial on the issue of damages, Wildey testified that she expended $100 for the cost of alterations to her wedding dress. This was the only evidence of damages presented to the court. Therefore, the court properly awarded Wildey $100 in damages, which was the cost of the alterations.
Lastly, we note that the trial court prevented Wildey from producing any evidence of damages resulting from pain and suffering and the loss of business profits. We agree with the trial court that Wildey's recovery is limited to actual damages only. Section 2 and 3 of the Breach of Promise Act states:
"§ 2. The damages to be recovered in any action for breach of promise or agreement to marry shall be limited to the actual damages sustained as a result of the injury complained of.
§ 3. No punitive, exemplary, vindictive or aggravated damages shall be allowed in any action for breach of promise or agreement to marry." 740 ILCS 2, 3 (West 1994).
The damages for pain and suffering are not allowed under the Act. See generally White v. Prenzler, 19 Ill. App. 2d 231, 153 N.E.2d 477 (1958). Thus, the trial court's ruling was proper.
For all the forgoing reasons, we affirm the judgment of the circuit court of Cook County.
Affirmed.
QUINN, P.J., and THEIS, J., concur.