Renshaw v. Black

October 16, 1998          NO. 5-97-0884

                              IN THE

                   APPELLATE COURT OF ILLINOIS

                          FIFTH DISTRICT
_________________________________________________________________

JAMES RENSHAW and SHARMON RENSHAW, )  Appeal from the
                                   )  Circuit Court of
     Plaintiffs-Appellants,        )  Jackson County.
                                   )
v.                                 )  No. 93-L-199
                                   )
KATHERINE M. BLACK,                )  Honorable
                                   )  David C. Nelson,
     Defendant-Appellee.           )  Judge, presiding.
_________________________________________________________________

     JUSTICE KUEHN delivered the opinion of the court:
     Plaintiffs, James and Sharmon Renshaw, appeal the trial
court's September 26, 1997, order denying their motion to
reconsider the trial court's August 4, 1997, summary judgment order
entered against them.  We reverse and remand for further
proceedings.
     This is a story of legal malpractice in a highly specialized
area of law--education law.  The Renshaws are parents of a daughter
with special educational needs as a learning disabled student.  She
was enrolled in the third grade during the 1989-90 school year in
the Giant City School District.  During that school year, she was
identified as a student with special learning disabilities.  The
child's problems include attention deficit disorder, an auditory
processing disorder, a sensory motor processing disorder, a visual
spatial deficit, and severe anxiety and self-esteem issues.  She is
of normal to above normal intelligence.
     The Education of the Handicapped Act (EHA), now known as the
Individuals with Disabilities Education Act, mandates that school
districts must provide students with such learning disabilities
with a "free appropriate public education."  20 U.S.C. 1400(c)
(1988); 20 U.S.C. 1400(c) (1994).  The educational needs of the
student must be addressed in writing.  20 U.S.C. 1401(a)(19)
(1988) (now 20 U.S.C. 1401(a)(20) (1994)).  This written document
is called an individualized education program (IEP).  20 U.S.C.
1401(a)(20) (1994).  The IEP is prepared following a meeting
between school officials and the student's parents.  20 U.S.C.
1401(a)(20) (1994).  If the parties cannot agree upon the
student's IEP, the parents are entitled to an impartial due process
hearing to resolve their complaints.  20 U.S.C. 1415(b)(2) (1988);
13 Ill. Reg. 15784-87 (adopted September 26, 1989) (now 89 Ill.
Adm. Code 510.70 (1996)).  This evidentiary hearing is conducted
before a hearing officer.  13 Ill. Reg. 15789 (adopted September
26, 1989) (now 89 Ill. Adm. Code 510.90 (1996)).  The hearing
officer's determination is called a Level I decision.  20 U.S.C.
1415(b)(2) (1988); 13 Ill. Reg. 15784 (adopted September 26, 1989)
(now 89 Ill. Adm. Code 510.70 (1996)).  The Level I decision can
be further appealed to a Level II hearing officer, who enters a
Level II decision.  20 U.S.C. 1415(c) (1988); 13 Ill. Reg. 15788
(adopted September 26, 1989) (now 89 Ill. Adm. Code 510.80
(1996)).  A Level II decision is appealable in the federal courts
for a limited administrative review.  20 U.S.C. 1415(e) (1988); 13
Ill. Reg. 15792 (adopted September 26, 1989) (now 89 Ill. Adm. Code
510.110 (1996)).  
     In this case, the Giant City School District prepared an IEP
for the student in February 1990.  The Renshaws did not believe
that this IEP adequately addressed their daughter's educational
needs.  They hired defendant Katherine M. Black, an attorney who
specializes in educational law, to represent them in their dispute
with the Giant City School District.  In July 1990, the Renshaws
believed that they had reached an agreement with the district. 
When the changes to the original IEP were not implemented at the
school year's beginning, the Renshaws requested a due process
hearing.
     In preparation for the hearing, the Renshaws hired various
professionals to examine their daughter and to provide their expert
opinions regarding her educational needs.  Upon a review of these
evaluations and after consultation with their attorney, Katherine
Black, the Renshaws withdrew their daughter from public school and
enrolled her in a private school in Carbondale.
     At the due process hearing, the Renshaws sought reimbursement
for the evaluation expenses, as well as for the private school
tuition they were incurring.  The Level I hearing officer
determined that the Giant City School District violated the Renshaw
student's rights.  The officer ordered the district to reimburse
the Renshaws for the evaluation expenses, but the officer concluded
that he could not order the district to pay for the private school
tuition because that particular school "is not authorized for
payment by the Governor's Purchased Care Review Board as of Fall[]
1990."  The Level II hearing officer essentially agreed with the
lower level and affirmed this decision with some minor
modifications, stating that no evidence had been introduced at the
Level II hearing that the particular private school at issue was on
the approved list.  Simply stated, the hearing officers found that
there was no legal basis for awarding tuition at a nonapproved
private school.
     The Renshaws sought review in the federal district court by
filing a lawsuit pursuant to the EHA on July 19, 1991--three days
after the statute of limitations for such an action expired.  A
summary judgment on this sole issue was ultimately entered against
the Renshaws on July 30, 1992.
     Without addressing the specifics, it is sufficient for us to
say that the state of the law at the time that the hearing officers
entered their decisions and as of the date when the Renshaws filed
their federal EHA claim was against the reimbursement of tuition
for a nonapproved private school.  However, the law is an ever-
changing entity, and a mere four months after attorney Black filed
the Renshaws' federal case, the United States Court of Appeals for
the Fourth Circuit ruled that parents can recover tuition from a
nonapproved private school.  Carter v. Florence County School
District Four, 950 F.2d 156, 161-62 (4th Cir. 1991).  The United
States Supreme Court granted certiorari in order to resolve this
issue.  Florence County School District Four v. Carter, 507 U.S. 907, 122 L. Ed. 2d 649, 113 S. Ct. 1249 (1993).  On November 9,
1993, the Supreme Court affirmed the Fourth Circuit's decision. 
Florence County District Four v. Carter, 510 U.S. 7, 9-10, 126 L. Ed. 2d 284, 290, 114 S. Ct. 361, 363 (1993). 
     After the July 30, 1992, dismissal of their federal lawsuit,
the Renshaws hired a new attorney to represent them in their
ongoing dispute with the Giant City School District.  This attorney
worked on the case beginning in late 1992 and continuing for not
quite one year.  The Renshaws allege that if their federal lawsuit
had not been dismissed, they would not have sought alternate
representation.
     On December 23, 1993, the Renshaws filed their complaint in
this case alleging legal malpractice against attorney Black.  The
complaint was subsequently amended twice.  The crux of their
complaint involves the dismissal of their federal suit and their
claims that had the complaint not been dismissed, it would have
been pending until November 1993 when the Supreme Court decided the
Florence County District Four case.  The Renshaws point to the
initial November 1992 trial setting of this case for support to
their claim that the suit would still have been pending in November
1993, arguing that the case would surely have been continued from
that initial setting by the parties or the court.
     In answering the Renshaws' second amended malpractice
complaint, attorney Black admitted the existence of an attorney-
client relationship at all relevant times.  She also admitted to
missing the applicable statute of limitations and that the
foundation for the lawsuit's dismissal was this error.  In her
deposition, she stated that if Florence County District Four had
been on the books at the time of the relevant decisions in this
case, the court would have ordered placement in the private school
chosen by the Renshaws.
     As the legal malpractice case continued, the Renshaws named no
experts, believing that attorney Black's own admissions were
sufficient to establish liability as a matter of law.  The December
16, 1996, case management order entered by the trial court required
the Renshaws to disclose the names of all opinion witnesses by
January 31, 1997.  The Renshaws made no such disclosure.  Attorney
Black filed a motion seeking to bar opinion witnesses.  On March
21, 1997, the trial court entered an order barring all opinion
witnesses from testifying on the Renshaws' behalf.
     Subsequently, on March 31, 1997, attorney Black filed a motion
for summary judgment, arguing that the issues of proximate
causation and damages required opinion testimony and, as the
Renshaws were barred from naming any opinion witnesses, they would
be incapable of proving up their case.  The Renshaws responded to
this motion by arguing that attorney Black's own admissions and
discovery deposition testimony (and expected trial testimony)
sufficed to prove proximate causation and damages.  The Renshaws
also filed a cross-motion for summary judgment on the issue of
liability.  The trial court agreed with attorney Black and on
August 4, 1997, granted her motion.
     The Renshaws filed a motion for reconsideration and for leave
to name attorney Black as an opinion witness.  The trial court
denied this motion on September 26, 1997.  
     The Renshaws appeal from the trial court's order granting
attorney Black's summary judgment motion and denying their motion
to reconsider.  
     In determining the appropriateness of a summary judgment, the
trial court strictly construes all evidence in the record against
the movant and liberally in favor of the opponent.  Purtill v.
Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986).  The court
must consider all pleadings, depositions, admissions, and
affidavits on file to decide if there is any issue of material
fact.  Myers v. Health Specialists, S.C., 225 Ill. App. 3d 68, 72,
587 N.E.2d 494, 497 (1992).  On appeal, courts review summary
judgment orders de novo.  Myers, 225 Ill. App. 3d at 72, 587 N.E.2d 
at 497.
     In ruling in attorney Black's favor, the trial court stated
that the Renshaws would be incapable of proving their legal
malpractice case absent expert testimony.  This statement may be
accurate.  While the trial court states that "there are certain
situations in which the admissions of a defendant professional may
supply needed proof," the trial court goes on to conclude that the
Renshaws cannot utilize attorney Black's own expert opinions
because they failed to disclose her as a Supreme Court Rule 213(g)
(Official Reports Advance Sheet No. 9 (May 23, 1997), R. 213(g)
(effective May 1, 1997)) opinion witness prior to the cut-off date. 
On the basis of this conclusion, we are reversing and remanding
this case to the trial court for further proceedings.  
     Supreme Court Rule 213(g) defines the term opinion witness as
"a person who will offer any opinion testimony."  Official Reports
Advance Sheet No. 9 (May 23, 1997), R. 213(g) (effective May 1,
1997).  The rule further requires parties to include, in answer to
written opinion witness interrogatories, the subject matter upon
which the expert will testify, his or her qualifications, and his
or her conclusions and opinions.  Official Reports Advance Sheet
No. 9 (May 23, 1997), R. 213(g) (effective May 1, 1997).  The
Supreme Court Rule 213(g) requirement of disclosure was not
designed to preclude the use of a professional malpractice
defendant's own admissions made during the course of discovery. 
The purpose of requiring disclosure is to avoid late disclosure or
surprise.  As with Supreme Court Rule 220 (134 Ill. 2d R. 220),
which preceded it, the rule works to establish a consistent
framework by which the parties can discover the identity, opinions,
and qualifications of opinion witnesses.  A.W. Wendell & Sons, Inc.
v. Qazi, 254 Ill. App. 3d 97, 114, 626 N.E.2d 280, 293 (1993). 
With a defendant professional, the identity and qualifications
should not be at issue.  A defendant professional should not be
heard to argue surprise when confronted by his or her own
previously expressed opinions.
     Attorney Black concentrates her practice in the field of
education law, which is something shared by very few other
attorneys.  The trial court referred to education law as "arcane." 
The Renshaws were unsuccessful in their attempts to locate even one
other attorney in southern Illinois knowledgeable in the field. 
Especially in this unique situation, we hold that attorney Black's
own previously expressed expert opinions on the subject matter of
the underlying litigation would be admissible without regard to the
disclosure requirements of Supreme Court Rule 213(g).  Attorney
Black cannot reasonably claim surprise in this case.  She made
certain admissions in answer to the Renshaws' second amended
complaint relative to her duty to the Renshaws and breach thereof. 
She also made statements in her discovery deposition that can
properly be considered admissions of one kind or another relative
to the likelihood of the Renshaws' success in the underlying case,
experts who would have testified on behalf of the Renshaws, and the
reimbursability of expenses.  
     Entering summary judgment means that there are no genuine
issues of material fact left to be decided by the trier of fact. 
The issue of proximate causation in a legal malpractice setting is
generally considered a factual issue to be decided by the trier of
fact.  See Shehade v. Gerson, 148 Ill. App. 3d 1026, 1031, 500 N.E.2d 510, 513 (1986); Gelsomino v. Gorov, 149 Ill. App. 3d 809,
815, 502 N.E.2d 264, 268 (1986).  While attorney Black's deposition
admissions may fall short of establishing her own liability in a
summary judgment context, the admissions certainly create a factual
issue to be decided by the ultimate trier of fact.  Therefore, the
judgment of the trial court must be reversed, and the cause must be
remanded for further consideration of the summary judgment motions,
including statements made by attorney Black relative to proximate
causation and damages.
     Because we are remanding this case for further proceedings, we
must also address conclusions made by the trial court regarding the
nature of attorney Black's admissions.  
     The trial court stated that attorney Black's opinions
regarding the likelihood of the underlying suit's success are
subjective in nature and speculative.  The trial court is correct
in concluding that her statements are subjective in nature, as her
opinions have not yet been reduced to the objective standard. 
However, we feel compelled to comment that given the unique nature
of this litigation, any expert would be required to engage in some
speculation about the underlying case's outcome.  Ultimately, an
expert would be required to opine about whether or not a federal
district court located within the seventh circuit would rely upon
case law generated from the fourth circuit and whether the case
would have remained pending in federal court long enough for the
United States Supreme Court to ultimately decide that issue.  No
expert testimony on this issue could be definite, but such
testimony could be within a reasonable certainty.
     Additionally, the trial court concluded that attorney Black's
admissions do not amount to judicial admissions.  Judicial
admissions are binding upon the party and cannot be controverted. 
Giamanco v. Giamanco, 111 Ill. App. 3d 1017, 1022, 444 N.E.2d 1090,
1093-94 (1982).  Attorney Black's admissions in her answer to the
Renshaws' second amended complaint fall within this category.  See
State Security Insurance Co. v. Linton, 67 Ill. App. 3d 480, 484,
384 N.E.2d 718, 721 (1978).  A party's trial testimony could fall
within this category if the testimony is clear and unequivocal. 
See Gauchas v. Chicago Transit Authority, 57 Ill. App. 2d 396, 400,
206 N.E.2d 752, 755 (1965).  The trial court correctly stated that
attorney Black's discovery deposition testimony failed to
constitute a judicial admission.  However, there is another
applicable type of admission--the evidentiary admission. 
Evidentiary admissions can be controverted.  See Anfinsen Plastic
Molding Co. v. Konen, 68 Ill. App. 3d 355, 361, 386 N.E.2d 108, 112
(1979).  Statements that attorney Black made during her discovery
deposition could be considered evidentiary admissions subject to
challenge.  Evidentiary admissions as to the malpractice tort
elements at issue should be sufficient to raise a factual question
precluding summary judgment.
     For the foregoing reasons, the judgment of the circuit court
of Jackson County is hereby reversed, and the cause is remanded
with directions to reconsider the summary judgment motions in light
of this opinion.

     Reversed and remanded with directions.

     MAAG and HOPKINS, JJ., concur.