{ "id": 3529413, "name": "MARK D. LAND, Plaintiff-Appellant, v. CRAIG H. GREENWOOD, Defendant-Appellee", "name_abbreviation": "Land v. Greenwood", "decision_date": "1985-05-30", "docket_number": "No. 4\u201484\u20140684", "first_page": "537", "last_page": "541", "citations": [ { "type": "official", "cite": "133 Ill. App. 3d 537" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "474 N.E.2d 934", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 604", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3494631 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0604-01" ] }, { "cite": "458 N.E.2d 488", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. 2d 312", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3162991 ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0312-01" ] }, { "cite": "440 N.E.2d 440", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "109 Ill. App..3d 342", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448493 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0342-01" ] }, { "cite": "452 N.E.2d 691", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 875", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3519530 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0875-01" ] }, { "cite": "472 N.E.2d 787", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147125 ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0302-01" ] }, { "cite": "428 N.E.2d 711", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 741", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3081774 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0741-01" ] }, { "cite": "369 N.E.2d 365", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 261", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3403104 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0261-01" ] }, { "cite": "181 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "24 Ill. 2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2800594 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/24/0437-01" ] } ], "analysis": { "cardinality": 498, "char_count": 8495, "ocr_confidence": 0.763, "pagerank": { "raw": 2.539323313079506e-07, "percentile": 0.8132672985954007 }, "sha256": "d6c6eaa17536d153b96bbe8a4b429996b33216ec3ade7b7975334ac228ac3a94", "simhash": "1:bf7fd09f72551490", "word_count": 1448 }, "last_updated": "2023-07-14T17:42:49.711724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARK D. LAND, Plaintiff-Appellant, v. CRAIG H. GREENWOOD, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE WEBBER\ndelivered the opinion of the court:\nThis is a case of legal malpractice. The defendant, a licensed attorney, formerly represented the plaintiff in a personal injury suit. The defendant was discharged by the plaintiff and new counsel employed. Thereafter, plaintiff\u2019s personal injury suit was dismissed with prejudice for failure to obtain summons within a reasonable time on the defendants there. Plaintiff, through successor counsel, then brought the instant action. Defendant moved to dismiss pursuant to section 2 \u2014 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 619(a)(9)), and the motion was allowed by the circuit court of Champaign County; the cause was then dismissed with prejudice, and this appeal followed.\nThe underlying facts are largely undisputed. Plaintiff Land claimed that he was injured when he came into contact with an electrie transmission line of Illinois Power Company. He retained defendant Greenwood to represent him on a contingent fee basis. One day before the statute of limitations expired, June 9, 1982, Greenwood filed a personal injury suit in the circuit court of Champaign County, naming 12 defendants, including Illinois Power Company and the city of Champaign. According to the record in that case (Land v. Illinois Power Co. et al., Champaign County Circuit Court No. 82 \u2014 L\u2014652), summons was issued by the circuit clerk on June 9, 1982, for three defendants, Illinois Power Company, city of Champaign, and Paul Dauten, Jr. The two former ones were served June 11, 1982; the summons for Dauten was returned \u201cNot Found,\u201d it appearing that he had died two years previously. The city filed a motion to dismiss, which was allowed by the circuit court on October 26, 1982.\nIn either December 1982 or January 1983, the record being in conflict, Land discharged Greenwood as his attorney. He retained successor counsel, Robert Auler, in February 1983. Service of process was had through his efforts on various other defendants during the months of May and June 1983. Motions to dismiss were filed by various defendants based upon a lack of diligence by the plaintiff in obtaining service on them under Supreme Court Rule 103(b) (87 111. 2d R. 103(b)). The individual motions were allowed and ultimately, on August 31, 1983, the circuit court dismissed the entire suit with prejudice on the same basis.\nIn response to the instant suit, defendant filed a double-barreled motion under sections 2 \u2014 619(a)(9) and 2 \u2014 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, pars. 2 \u2014 619(a)(9), 2 \u2014 615). The trial court\u2019s ruling was under section 2 \u2014 619(a)(9). That section provides for involuntary dismissal based upon certain affirmative defenses which the court can resolve as a matter of law. John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105; Brewer v. Stovall (1977), 54 Ill. App. 3d 261, 369 N.E.2d 365.\nThe motion was supported by Greenwood\u2019s own affidavit and was aimed at the allegation in the complaint that plaintiff\u2019s personal injury suit was \u201cabsolutely barred.\u201d The motion and its supporting affidavit alleged that the suit was not so barred; that plaintiff had the option of taking a voluntary nonsuit under section 2 \u2014 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1009) and refiling within a year under section 2 \u2014 1009 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 13 \u2014 217). In essence, the trial court by its ruling held as a matter of law that the personal injury suit was not absolutely barred, and therefore plaintiff could plead no set of facts entitling him to relief. We agree.\nIt has been established that a plaintiff may dismiss his suit voluntarily and refile within a year, if done prior to trial or hearing, notwithstanding the running of the statute of limitations or plaintiff\u2019s lack of diligence in obtaining service. LaBarge, Inc. v. Corn Belt Bank (1981), 101 Ill. App. 3d 741, 428 N.E.2d 711.\nPlaintiff here contends that the proceedings taken on the city of Champaign\u2019s motion to dismiss were a \u201ctrial or hearing\u201d within the meaning of section 2 \u2014 1009 of the Code. We disagree. The supreme court has held that \u201ctrial\u201d has not begun for purposes of section 2 \u2014 1009 where no prospective jurors have been examined or sworn, no jury selected, and no opening statements made. It further held that \u201chearing\u201d is the equitable equivalent of trial. (Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787.) Other authorities have held that a motion under section 45 of the Civil Practice Act, the predecessor of section 2 \u2014 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1979, ch. 110, par. 45), was not a hearing within the meaning of section 52 of the Civil Practice Act, the predecessor of section 2 \u2014 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1979, ch. 110, par. 52). LaBarge, Inc. v. Corn Belt Bank (1981), 101 Ill. App. 3d 741, 428 N.E.2d 711; In re Marriage of Fine (1983), 116 Ill. App. 3d 875, 452 N.E.2d 691.\nThe record shows that the city\u2019s motion was filed under section 2 \u2014 615 of the Code. There was no \u201chearing\u201d within the meaning of the statute.\nThe glaring defect in plaintiff\u2019s case is that it is only a matter of speculation as to whether the suit would have been barred at the time defendant was discharged. By its order of August 1983, the circuit court found that service not obtained until May or June 1983 following a filing of suit in June 1982 showed a lack of diligence, but the order did not provide anything regarding December 1982 or January 1983, the dates upon which defendant was dismissed by plaintiff. In any event, it remains clear that plaintiff could have taken a voluntary dismissal at any time up to August 1983, so long as it was done prior to the court\u2019s ruling on the motions under Supreme Court Rule 103(b).\nPlaintiff has argued that successor counsel had no duty to take corrective measures to \u201crescue\u201d discharged counsel. As an abstract proposition, it may have some merit, but the fact of the matter is that successor counsel had the duty to preserve his client\u2019s cause of action. It was viable when he received it; it was not when he got through with it.\nPlaintiff also argues that prior counsel has the duty to \u201ccontribute\u201d his share of damages to plaintiff\u2019s loss. Contribution is a doctrine, now embodied in statutory law (111. Rev. Stat. 1983, ch. 70, par. 301 et seq.), requiring a sharing of damages among or between joint tortfeasors. Since there is only one defendant in the instant suit, we have difficulty comprehending how contribution can apply. The entire suit is aimed at Greenwood\u2019s actions during the time he had control of the litigation, i.e., June 1982 to December 1982 or January 1983. The complaint alleges that \u201cbut for defendant Greenwood\u2019s lack of due diligence *** the Plaintiff would have recovered and collected a substantial award.\u201d This appears to us to be an allegation that Greenwood\u2019s actions were the sole cause of plaintiff\u2019s difficulty. If that be true, there is no basis for contribution.\nDefendant\u2019s duty to plaintiff ceased upon his discharge. (Compare York v. Stiefel (1982), 109 Ill. App..3d 342, 440 N.E.2d 440, aff\u2019d in part & rev\u2019d in part on other grounds (1983), 99 Ill. 2d 312, 458 N.E.2d 488.) The cause of action was viable at the time of that discharge. It therefore follows that plaintiff can prove no set of facts which connect defendant\u2019s conduct with any damage sustained by plaintiff.\nPlaintiff further argues that even if count I, a negligence count, were properly dismissed, he should still be allowed to proceed under count II, a breach of contract action. The allegations are the same in both counts. Moreover, an action for legal malpractice is one sounding in tort which arises out of a contract, express or implied, for legal services. With no additional allegations, the contract count is simply a restatement of the negligence count. (See Yates v. Muir (1985), 130 Ill. App. 3d 604, 474 N.E.2d 934.) The trial court was correct in dismissing count II for the same reasons as count I.\nThe order of the circuit court of Champaign County is affirmed.\nAffirmed.\nMcCULLOUGH and MORTHLAND, JJ., concur.", "type": "majority", "author": "JUSTICE WEBBER" } ], "attorneys": [ "Robert I. Auler, of Auler Law Offices, P.C., of Urbana, for appellant.", "Keith E. Emmons, of Dobbins, Fraker, Tennant, Joy & Peristein, of Champaign, for appellee." ], "corrections": "", "head_matter": "MARK D. LAND, Plaintiff-Appellant, v. CRAIG H. GREENWOOD, Defendant-Appellee.\nFourth District\nNo. 4\u201484\u20140684\nOpinion filed May 30, 1985.\nRobert I. Auler, of Auler Law Offices, P.C., of Urbana, for appellant.\nKeith E. Emmons, of Dobbins, Fraker, Tennant, Joy & Peristein, of Champaign, for appellee." }, "file_name": "0537-01", "first_page_order": 559, "last_page_order": 563 }