Kling v. Landry
Annotate this Case
No. 2--97--0059
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
BELEN KLING, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
)
v. ) No. 95--L--1114
)
JOHN D. LANDRY, ) Honorable
) Edward R. Duncan, Jr.,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________
PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, Belen Kling, appeals from the December 31, 1996,
order of the circuit court of Du Page County dismissing her four-
count complaint alleging legal malpractice, breach of fiduciary
duty, negligence, and intentional battery. In her complaint, the
plaintiff alleges that the defendant, John Landry, coerced her into
having sexual relations with him while he represented her in two
separate legal proceedings. The trial court dismissed the
plaintiff's action pursuant to section 2--615 of the Code of Civil
Procedure (the Code) (735 ILCS 5/2--615 (West 1996)) for failure to
state a claim on which relief could be granted. We affirm in part,
reverse in part, and remand.
On June 8, 1995, the plaintiff filed her original complaint.
On three separate occasions thereafter, the defendant filed motions
to dismiss the plaintiff's complaint pursuant to section 2--615 of
the Code (735 ILCS 5/2--615 (West 1996)). On each such occasion,
the trial court dismissed the plaintiff's complaint but granted the
plaintiff leave to replead. On October 30, 1996, the plaintiff
filed her third amended complaint.
The factual allegations contained in the third amended
complaint (hereinafter complaint) are as follows. On or about
January 22, 1991, the defendant agreed to represent the plaintiff
in a dissolution of marriage suit proceeding in the circuit court
of Du Page County (In re Marriage of Kling, No. 90--D--2865 (Cir.
Ct. Du Page Co.)). The primary disputes at issue in the dissolution
proceeding were the distribution of marital property and
maintenance. The trial of the case was scheduled to proceed on May
1, 1991.
The complaint alleges that, on the evening of April 30, 1991,
the defendant visited the plaintiff's residence in order to prepare
for the upcoming trial. While in the plaintiff's home, the
defendant allegedly threw the plaintiff on her bed and initiated
sexual intercourse with her. The plaintiff alleges that she
submitted to the defendant's demands for sexual intercourse because
she was afraid that if she refused the defendant would not represent
her at trial. The case did not proceed to trial, as the parties
subsequently settled all property distribution and maintenance
issues. On May 16, 1991, a final judgment for dissolution of
marriage was entered by the circuit court.
The complaint further alleges that, in the spring of 1992, the
defendant agreed to represent the plaintiff in her attempt to seek
a modification of the dissolution order entered by the circuit court
of Cook County in the plaintiff's first divorce (Shoblaske v.
Shoblaske, No. 84--D--21908 (Cir. Ct. Cook Co.)). On October 13,
1992, the defendant filed a postdissolution petition for
modification of judgment, requesting that plaintiff be granted
custody of her minor son, Aaron. The plaintiff paid the defendant
$1,500 for his legal services in the postdissolution proceeding.
Attached to the judgment of dissolution entered in cause
No. 84--D--21908 was a psychological evaluation of the plaintiff
performed by the Center for Families in Conflict of the Isaac Ray
Center, Inc. This evaluation indicated that the plaintiff suffered
from severe psychopathology, including bizarre thought patterns,
poor impulse control, affective lability, and possible
hallucinations. The plaintiff's complaint alleges that, because of
the defendant's knowledge of this report, he knew or should have
known that the plaintiff suffered from mental impairments which
could affect her ability to make reasonable decisions and judgments
during the course of his representation.
The complaint further alleges that, on June 11, 1993, the
defendant telephoned the plaintiff and advised her that they needed
to prepare for a court appearance scheduled for June 17, 1993. On
June 16, 1993, the defendant met with the plaintiff at her home.
At this time, the defendant allegedly removed the plaintiff's
clothing, pushed her onto a rug in her kitchen, and initiated sexual
intercourse. In August 1993, the plaintiff terminated the
defendant's representation of her. The plaintiff alleges that the
petition for modification of judgment prepared by the defendant was
frivolous and had no basis in fact or law.
As noted above, the plaintiff's complaint consists of four
counts. Count I of the complaint is predicated upon legal
malpractice and alleges that the defendant improperly utilized his
position as the plaintiff's attorney to obtain sexual intercourse
with her even though she was mentally impaired. Count I also
alleges that the defendant breached his duty of care by filing a
"meritless" postdissolution petition for modification. Count II of
the complaint is predicated upon breach of fiduciary duty and
contains the same allegations as count I. Count III is predicated
upon common-law negligence and alleges that the defendant breached
his duty of care by encouraging the plaintiff to submit to sexual
intercourse even though he knew of her impaired mental condition.
Count IV is predicated upon intentional battery and alleges that the
defendant's acts of sexual intercourse were without permission and
provocation.
On November 19, 1996, the defendant filed a motion to dismiss
the plaintiff's complaint pursuant to section 2--615 of the Code
(735 ILCS 5/2--615 (West 1996)). On December 31, 1996, following
a hearing, the trial court granted the motion in its entirety and
dismissed the plaintiff's complaint with prejudice. In reliance on
Suppressed v. Suppressed, 206 Ill. App. 3d 918, 924 (1990), the
trial court dismissed counts I and II on the basis that they failed
to state a cause of action upon which relief could be granted. The
trial court dismissed counts III and IV on the basis that they
pleaded insufficient facts to state causes of action for negligence
and intentional battery. The plaintiff filed a timely notice of
appeal.
Because the plaintiff's complaint was dismissed pursuant to a
section 2--615 motion, the question before this court is whether her
claims set forth a cause of action upon which relief could be
granted. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501,
505 (1990), overruled on other grounds, 163 Ill. 2d 125 (1994).
Since the question is one of law, our review is de novo. T&S Signs,
Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1084 (1994).
In conducting that review, we are required to take all well-pleaded
facts in the complaint as true and draw reasonable inferences from
those facts which are favorable to the plaintiff. Ziemba v.
Mierzwa, 142 Ill. 2d 42, 46-47 (1991). An action should not be
dismissed on the pleadings unless it is apparent that no set of
facts can be proved that would entitle the plaintiff to recover.
Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 488 (1994). With
these principles in mind, we turn to a consideration of each of the
counts in the plaintiff's complaint.
As noted above, count I of the complaint is predicated upon
legal malpractice. Illinois law is clear that an attorney is liable
to his client for damages only when he fails to exercise a
reasonable degree of care and skill, and the law distinguishes
between negligence and mere errors of judgment. Spivack, Shulman
& Goldman v. Foremost Liquor Store, Inc., 124 Ill. App. 3d 676, 683
(1984). To state a cause of action for legal malpractice, a
plaintiff must plead: (1) that the attorney owed the plaintiff a
duty of care arising from an attorney-client relationship; (2) that
the defendant breached that duty; and (3) that as a proximate
result, the plaintiff suffered actual damages. Howard v.
Druckemiller, 238 Ill. App. 3d 937, 941 (1992).
Although the subject of attorney-client sexual relations has
been the subject of much recent debate within the legal community,
our research has uncovered only one Illinois case addressing whether
such conduct constitutes legal malpractice. See Suppressed v.
Suppressed, 206 Ill. App. 3d 918 (1990). In Suppressed, the
plaintiff alleged that her attorney "psychologically coerced or
seduced her into having sexual relations with him at the same time
that he was to be representing her in a divorce action."
Suppressed, 206 Ill. App. 3d at 920. As in the instant case, the
plaintiff asserted that she submitted to these sexual demands out
of fear that her attorney would not adequately represent her
interests. Suppressed, 206 Ill. App. 3d at 921. The Illinois
Appellate Court, First District, held that such allegations did not
state a claim for legal malpractice because the alleged breach of
duty was not sufficiently linked to the attorney's legal
representation. Suppressed, 206 Ill. App. 3d at 924. The court
explained its reasoning as follows:
"In the present case, the only charge against defendant that
alleges a breach of his legal duty to his client is the
allegation that defendant's relationship with plaintiff
created a 'potential conflict of interest.' While this may be
true, we also note that plaintiff did not charge that an
actual conflict of interest existed or that she was harmed in
her legal action by such a conflict.
*** For this reason we do not believe that the higher
standard of care required of a fiduciary should extend to an
attorney's personal relationships with his clients, unless
there is tangible evidence that the attorney actually made his
professional services contingent upon the sexual involvement
or that his legal representation of the client was, in fact,
adversely affected." Suppressed, 206 Ill. App. 3d at 924-25.
The court further stated that, even if it were to assume that
the attorney breached his duty of care by engaging in sexual
relations with a client, the dismissal of the complaint was still
appropriate as the plaintiff had failed to allege any actual damages
stemming from a loss suffered in her underlying dissolution action.
Suppressed, 206 Ill. App. 3d at 925. The court noted that the
plaintiff's marriage was later dissolved and that the divorce
agreement was apparently satisfactory to her. Suppressed, 206 Ill.
App. 3d at 925. The court held that the plaintiff's mental
distress, absent any quantifiable injury stemming from her
attorney's legal representation, was insufficient to support an
action for legal malpractice. Suppressed, 206 Ill. App. 3d at 925.
Although this court has not had occasion to consider this
issue, we are persuaded by the foregoing discussion. To establish
a cause of action for legal malpractice, a plaintiff is obligated
to demonstrate that the attorney has breached his duty to provide
adequate legal representation and that, as a result, the plaintiff
has suffered actual damages. Howard, 238 Ill. App. 3d at 941.
Therefore, we find that, for purposes of a legal malpractice action,
the existence of an attorney-client sexual relationship is only
relevant to the extent that it has an adverse effect on the quality
of the legal representation. Suppressed, 206 Ill. App. 3d at 924-
25. Although such a relationship may submit an attorney to
discipline under the rules of professional responsibility or to
liability pursuant to another cause of action, we hold that the mere
existence of a sexual relationship is not sufficient to state a
cause of action for legal malpractice. See Suppressed, 206 Ill.
App. 3d at 924-25.
In the instant case, the plaintiff alleges that the defendant
coerced her into submitting to his sexual demands on two occasions.
The first occasion occurred during the defendant's representation
in the plaintiff's dissolution proceeding in Du Page County (No. 90-
-D--2865). As in Suppressed, we note that the plaintiff has not
pleaded that her attorney failed to adequately protect her legal
interests in the proceeding. The plaintiff's marriage was
eventually dissolved, and the dissolution agreement was apparently
satisfactory to her. As the plaintiff did not claim that her legal
position in the proceedings was harmed so as to result in actual
damages, we hold that such allegations do not support a claim for
legal malpractice.
The second alleged sexual contact between the plaintiff and the
defendant occurred during the defendant's representation in the
plaintiff's postdissolution petition filed in Cook County (No. 84--
D--21908). In addition to the allegations of sexual intercourse,
however, the plaintiff also alleges that the modification petition
filed by the defendant was without merit. The plaintiff therefore
alleges that the defendant breached his duty to provide adequate
legal representation by filing a frivolous pleading. As a result
of this conduct, the plaintiff contends that she has suffered actual
damages of $1,500, which represents the cost of the defendant's
legal services.
A more careful review of the plaintiff's complaint, however,
reveals that her allegation that the modification petition was
"without merit" is conclusory. A pleader is obligated to set out
ultimate facts that support the cause of action, and legal
conclusions unsupported by allegations of specific facts are
insufficient. Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 509-10 (1988). An actionable wrong cannot be made out
merely by characterizing acts as having been wrongfully done.
Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 520
(1989).
We note that the plaintiff herein has failed to allege any
facts explaining why she contends the petition was frivolous or
inadequately prepared. Additionally, the plaintiff has failed to
append a copy of the petition for modification or a copy of the
circuit court's order denying the petition. As the plaintiff has
failed to plead any facts supporting her conclusion that the
modification petition was "without merit," the trial court properly
dismissed this count. See Estate of Johnson, 119 Ill. 2d at 510.
In count II of her complaint, the plaintiff alleged breach of
fiduciary duty. As noted by the plaintiff, a fiduciary relationship
exists between an attorney and his client as a matter of law. In
re Imming, 131 Ill. 2d 239, 252-53 (1989). Once established, the
attorney-client relationship gives rise to certain duties owed by
the attorney to the client without regard to the specific terms of
any contract of engagement. Among the fiduciary duties imposed upon
an attorney are those of fidelity, honesty, and good faith in both
the discharge of contractual obligations to, and professional
dealings with, a client. Metrick v. Chatz, 266 Ill. App. 3d 649,
656 (1994). When in the course of his professional dealings with
a client, an attorney places his personal interest above the
interest of the client, the attorney is in breach of his fiduciary
duty by reason of the conflict. In re Rosin, 118 Ill. 2d 365, 381
(1987). The breach of fiduciary duty by an attorney gives rise to
an action on behalf of the client for proximately resulting damages.
Bauer v. Hubbard, 228 Ill. App. 3d 780, 785 (1992). An action for
the breach of fiduciary duty is not a tort; rather it is governed
by the substantive law of contracts. Kinzer v. City of Chicago, 128 Ill. 2d 437, 445 (1989).
Our research has uncovered only one Illinois case considering
whether an attorney breaches his fiduciary obligations by coercing
his client to engage in sexual relations during the course of the
representation. See Doe v. Roe, 289 Ill. App. 3d 116 (1997). In
that case, the plaintiff submitted to her divorce attorney's sexual
advances out of fear that he would discontinue or compromise his
representation of her. Doe, 289 Ill. App. 3d at 121. After the
plaintiff's husband became aware of the relationship, the attorney
failed to seek the payment of the plaintiff's legal fees from her
former husband as allowed pursuant to section 508 of the Illinois
Marriage and Dissolution of Marriage Act (750 ILCS 5/508 (West
1996)). Doe, 289 Ill. App. 3d at 121. The attorney subsequently
obtained a $2,500 judgment against the plaintiff, representing his
unpaid attorney fees. Doe, 289 Ill. App. 3d at 122. At the
attorney's suggestion, the plaintiff agreed to continue their sexual
relationship in order to be released from the payment of the
judgement. Doe, 289 Ill. App. 3d at 122.
The Doe court held that these allegations set forth sufficient
facts to state a cause of action for the breach of fiduciary duty.
Doe, 289 Ill. App. 3d at 130-31. The court noted that the attorney
declined to pursue the plaintiff's right to seek reimbursement of
attorney fees out of fear of personal embarrassment and potential
professional discipline; therefore, the attorney had placed his own
personal interests above the interests of his client. Doe, 289 Ill.
App. 3d at 123. The court concluded that the plaintiff was entitled
to seek the recovery of her attorney fees, as well as damages for
her emotional distress, commenting:
"We believe the plaintiff has pled sufficient facts to support
the conclusion that the defendant used his position as the
plaintiff's attorney and his knowledge of her dependence upon
him to gain sexual favors, thus breaching his fiduciary duty.
Additionally, the plaintiff's complaint also contains facts
from which it can be inferred that, at the time the defendant
engaged in sexual relations with the plaintiff, he should have
known of her dependence upon him and the emotional distress
that could result from such behavior. In sum, we find that
the plaintiff has pled sufficient facts to enable her to
pursue damages for mental distress in her breach of fiduciary
duty claim." Doe, 289 Ill. App. 3d at 130-31.
We agree that an attorney breaches his fiduciary duty to his
client by exploiting his position as an attorney to gain sexual
favors. We believe that such a breach arises where the attorney:
(1) makes his legal representation contingent upon sexual
involvement; (2) compromises the client's legal interests as a
result of the sexual involvement; or (3) uses information, obtained
in the course of representing a client which suggests that the
client might be unusually vulnerable to a suggestion of sexual
involvement, to seduce the client. Doe, 289 Ill. App. 3d at 129.
We caution, however, that sexual intercourse between two consenting
adults is not, of itself, actionable conduct. Hertel v. Sullivan,
261 Ill. App. 3d 156, 160 (1994). Moreover, we note that the nature
of the attorney-client relationship is to provide legal services
rather than to improve a client's mental or emotional well-being.
See Suppressed, 206 Ill. App. 3d at 923-24.
In the instant case, unlike Doe, there have been no allegations
that the defendant made his legal representation contingent upon the
plaintiff's sexual involvement or that he compromised the
plaintiff's legal interests as a result of the sexual involvement.
Although the plaintiff contends that the modification petition filed
by the defendant was without merit, we have already found that these
allegations are unsupported conclusions of law. Finally, although
the plaintiff contends that the defendant was aware of the
plaintiff's "severe psychopathology" as a result of the
psychological evaluation attached to the judgement of dissolution
in cause No. 84--D--21908, we note that the first sexual encounter
between the plaintiff and defendant occurred well before the
defendant obtained this report. Moreover, the complaint does not
specifically allege that the defendant used the information
contained in the psychological evaluation in order to seduce the
plaintiff. For all of these reasons, we find that the facts alleged
herein are distinguishable from Doe and that they do not rise to the
level of a breach of fiduciary duty. Accordingly, we hold that the
trial court did not err in dismissing count II of the plaintiff's
complaint.
Count III of the plaintiff's complaint purports to be
predicated upon common-law negligence. The count alleges that the
defendant had a duty to exercise ordinary care for the safety of the
plaintiff and that he breached this duty by encouraging her to
engage in sexual intercourse with him even though he knew she was
mentally impaired. The trial court dismissed this count, finding
that it failed to allege sufficient facts to state a cause of
action. We agree. The plaintiff fails to offer any authority for
the propriety of such a cause of action, nor are we aware of the
existence of any such authority. Moreover, we fail to see how the
defendant breached his duty of ordinary care towards the plaintiff
by engaging in sexual intercourse with her. See Hertel, 261 Ill.
App. 3d at 160. We therefore conclude that the trial court properly
dismissed count III of the plaintiff's complaint.
Count IV of the plaintiff's complaint alleges an action for the
intentional tort of battery. The complaint specifically alleges
that, "the conduct of the defendant on June 16, 1993, constituted
a battery upon the plaintiff, in that the touching was without
permission and provocation." The trial court dismissed this count
pursuant to section 2--615 of the Code, finding that it failed to
allege sufficient facts to state a cause of action. Specifically,
the trial court found that these allegations failed to respond to
the defendant's demand for a bill of particulars filed on March 28,
1996. In a previous dismissal order, the trial court had instructed
the plaintiff to amend her complaint in a manner that was responsive
to the defendant's demand for a bill of particulars. In dismissing
the plaintiff's third amended complaint, the trial court commented:
"And Count IV, I respectfully submit that you did not
follow the request that I made of providing sufficient detail
so as to meet the requirements of the demand for the Bill of
Particulars."
Initially, we note that the dismissal of a plaintiff's
complaint with prejudice as a sanction for the failure to provide
a bill of particulars is not permitted by section 2--607 of the Code
(735 ILCS 5/2--607 (West 1996)). Bejda v. SGL Industries, Inc., 82 Ill. 2d 322, 329 (1980). That section provides:
"If the pleader does not file and serve a bill of
particulars within 28 days of the demand, or if the bill of
particulars delivered is insufficient, the court may, on
motion and in its discretion, strike the pleading, allow
further time to furnish the bill of particulars or require a
more particular bill to be filed and served." 735 ILCS 5/2--
607(b) (West 1996).
Under this section, the most severe sanction authorized is the
striking of the pleading to which the bill of particulars relates.
Bejda, 82 Ill. 2d at 328. A dismissal of a complaint with prejudice
cannot be equated with the striking of a pleading and is not
permitted under this section. Bejda, 82 Ill. 2d at 328-29.
Although the trial court's dismissal of the plaintiff's action
is not authorized by section 2--607 of the Code, the dismissal could
nonetheless be upheld as within the court's inherent authority to
control its business. Bejda, 82 Ill. 2d at 329. A plaintiff's
failure to take any action as ordered by the trial court evidences
want of prosecution by that party, and the trial court may dismiss
a suit for the failure of the complainant to prosecute it with due
diligence. Bejda, 82 Ill. 2d at 329. It has therefore been
recognized by our supreme court that the failure to file a bill of
particulars in disobedience of a trial court's order may be a ground
for dismissal with prejudice. Bejda, 82 Ill. 2d at 329.
Notwithstanding the general authority of the trial court to
dismiss an action, we conclude that the dismissal of count IV was
not proper. See Bejda, 82 Ill. 2d at 330. In order to state a
cause of action for intentional battery, a plaintiff must allege a
willful touching of another person without the consent of the person
who is touched. Pechan v. DynaPro, Inc., 251 Ill. App. 3d 1072,
1084 (1993). An action for battery does not depend on the hostile
intent of the defendant, but on the absence of the plaintiff's
consent to the contact. Pechan, 251 Ill. App. 3d at 1084. Our
review of count IV reveals that the plaintiff has alleged that, on
June 16, 1993, the defendant removed her clothing, pushed her onto
a kitchen rug, and initiated sexual intercourse. Further, although
the plaintiff does not specifically allege that such conduct was
"without her consent," she nonetheless alleges that the conduct was
"without permission and provocation." We conclude that such
allegations state sufficient facts to allege an action for
intentional battery. See Pechan, 251 Ill. App. 3d at 1084.
While it is true that the plaintiff did not respond to the
defendant's demand for a bill of particulars, the information that
the defendant requested in his demand exceeded the ultimate factual
elements that the plaintiff is obligated to plead. Specifically,
the defendant sought information relating to the specific content
of the plaintiff's psychiatric reports; the date when the defendant
obtained such reports; the date or dates of the alleged
conversations between the defendant and the plaintiff's
psychiatrists; the name of the psychological condition from which
the plaintiff suffered at the time in question; the nature of the
outward symptoms of the plaintiff's "severe psychopathology" at the
time in question; and why the plaintiff's psychological condition
prevented her from giving knowing consent to the act.
Although such information may be pertinent and relevant during
the subsequent litigation and trial of this count, the information
is beyond the plaintiff's burden of initial pleading and is more
appropriately obtained during discovery. See generally Bejda, 82 Ill. 2d at 330. The plaintiff is only obligated to plead those
ultimate facts necessary to state a cause of action and to inform
the defendant of the nature of the claim brought against him.
Adkins, 129 Ill. 2d at 518. The pleader is not required to set out
his evidence; only ultimate facts to be proved should be alleged,
and not evidentiary facts tending to prove ultimate facts. Stinson
v. Physicians Immediate Care, Ltd., 269 Ill. App. 3d 659, 662
(1995). As noted above, we believe that the plaintiff herein
pleaded sufficient ultimate facts to state a cause of action for
intentional battery. We therefore conclude that the trial court
erred in dismissing count IV and remand the cause for further
proceedings as to that count.
For the foregoing reasons, the judgment of the circuit court
of Du Page County is affirmed in part and reversed in part, and the
cause is remanded for further proceedings consistent with this
opinion.
Affirmed in part and reversed in part; cause remanded.
INGLIS and BOWMAN, JJ., concur.
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
BELEN KLING, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
)
v. ) No. 95--L--1114
)
JOHN D. LANDRY, ) Honorable
) Edward R. Duncan, Jr.,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________
PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, Belen Kling, appeals from the December 31, 1996,
order of the circuit court of Du Page County dismissing her four-
count complaint alleging legal malpractice, breach of fiduciary
duty, negligence, and intentional battery. In her complaint, the
plaintiff alleges that the defendant, John Landry, coerced her into
having sexual relations with him while he represented her in two
separate legal proceedings. The trial court dismissed the
plaintiff's action pursuant to section 2--615 of the Code of Civil
Procedure (the Code) (735 ILCS 5/2--615 (West 1996)) for failure to
state a claim on which relief could be granted. We affirm in part,
reverse in part, and remand.
On June 8, 1995, the plaintiff filed her original complaint.
On three separate occasions thereafter, the defendant filed motions
to dismiss the plaintiff's complaint pursuant to section 2--615 of
the Code (735 ILCS 5/2--615 (West 1996)). On each such occasion,
the trial court dismissed the plaintiff's complaint but granted the
plaintiff leave to replead. On October 30, 1996, the plaintiff
filed her third amended complaint.
The factual allegations contained in the third amended
complaint (hereinafter complaint) are as follows. On or about
January 22, 1991, the defendant agreed to represent the plaintiff
in a dissolution of marriage suit proceeding in the circuit court
of Du Page County (In re Marriage of Kling, No. 90--D--2865 (Cir.
Ct. Du Page Co.)). The primary disputes at issue in the dissolution
proceeding were the distribution of marital property and
maintenance. The trial of the case was scheduled to proceed on May
1, 1991.
The complaint alleges that, on the evening of April 30, 1991,
the defendant visited the plaintiff's residence in order to prepare
for the upcoming trial. While in the plaintiff's home, the
defendant allegedly threw the plaintiff on her bed and initiated
sexual intercourse with her. The plaintiff alleges that she
submitted to the defendant's demands for sexual intercourse because
she was afraid that if she refused the defendant would not represent
her at trial. The case did not proceed to trial, as the parties
subsequently settled all property distribution and maintenance
issues. On May 16, 1991, a final judgment for dissolution of
marriage was entered by the circuit court.
The complaint further alleges that, in the spring of 1992, the
defendant agreed to represent the plaintiff in her attempt to seek
a modification of the dissolution order entered by the circuit court
of Cook County in the plaintiff's first divorce (Shoblaske v.
Shoblaske, No. 84--D--21908 (Cir. Ct. Cook Co.)). On October 13,
1992, the defendant filed a postdissolution petition for
modification of judgment, requesting that plaintiff be granted
custody of her minor son, Aaron. The plaintiff paid the defendant
$1,500 for his legal services in the postdissolution proceeding.
Attached to the judgment of dissolution entered in cause
No. 84--D--21908 was a psychological evaluation of the plaintiff
performed by the Center for Families in Conflict of the Isaac Ray
Center, Inc. This evaluation indicated that the plaintiff suffered
from severe psychopathology, including bizarre thought patterns,
poor impulse control, affective lability, and possible
hallucinations. The plaintiff's complaint alleges that, because of
the defendant's knowledge of this report, he knew or should have
known that the plaintiff suffered from mental impairments which
could affect her ability to make reasonable decisions and judgments
during the course of his representation.
The complaint further alleges that, on June 11, 1993, the
defendant telephoned the plaintiff and advised her that they needed
to prepare for a court appearance scheduled for June 17, 1993. On
June 16, 1993, the defendant met with the plaintiff at her home.
At this time, the defendant allegedly removed the plaintiff's
clothing, pushed her onto a rug in her kitchen, and initiated sexual
intercourse. In August 1993, the plaintiff terminated the
defendant's representation of her. The plaintiff alleges that the
petition for modification of judgment prepared by the defendant was
frivolous and had no basis in fact or law.
As noted above, the plaintiff's complaint consists of four
counts. Count I of the complaint is predicated upon legal
malpractice and alleges that the defendant improperly utilized his
position as the plaintiff's attorney to obtain sexual intercourse
with her even though she was mentally impaired. Count I also
alleges that the defendant breached his duty of care by filing a
"meritless" postdissolution petition for modification. Count II of
the complaint is predicated upon breach of fiduciary duty and
contains the same allegations as count I. Count III is predicated
upon common-law negligence and alleges that the defendant breached
his duty of care by encouraging the plaintiff to submit to sexual
intercourse even though he knew of her impaired mental condition.
Count IV is predicated upon intentional battery and alleges that the
defendant's acts of sexual intercourse were without permission and
provocation.
On November 19, 1996, the defendant filed a motion to dismiss
the plaintiff's complaint pursuant to section 2--615 of the Code
(735 ILCS 5/2--615 (West 1996)). On December 31, 1996, following
a hearing, the trial court granted the motion in its entirety and
dismissed the plaintiff's complaint with prejudice. In reliance on
Suppressed v. Suppressed, 206 Ill. App. 3d 918, 924 (1990), the
trial court dismissed counts I and II on the basis that they failed
to state a cause of action upon which relief could be granted. The
trial court dismissed counts III and IV on the basis that they
pleaded insufficient facts to state causes of action for negligence
and intentional battery. The plaintiff filed a timely notice of
appeal.
Because the plaintiff's complaint was dismissed pursuant to a
section 2--615 motion, the question before this court is whether her
claims set forth a cause of action upon which relief could be
granted. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501,
505 (1990), overruled on other grounds, 163 Ill. 2d 125 (1994).
Since the question is one of law, our review is de novo. T&S Signs,
Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1084 (1994).
In conducting that review, we are required to take all well-pleaded
facts in the complaint as true and draw reasonable inferences from
those facts which are favorable to the plaintiff. Ziemba v.
Mierzwa, 142 Ill. 2d 42, 46-47 (1991). An action should not be
dismissed on the pleadings unless it is apparent that no set of
facts can be proved that would entitle the plaintiff to recover.
Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 488 (1994). With
these principles in mind, we turn to a consideration of each of the
counts in the plaintiff's complaint.
As noted above, count I of the complaint is predicated upon
legal malpractice. Illinois law is clear that an attorney is liable
to his client for damages only when he fails to exercise a
reasonable degree of care and skill, and the law distinguishes
between negligence and mere errors of judgment. Spivack, Shulman
& Goldman v. Foremost Liquor Store, Inc., 124 Ill. App. 3d 676, 683
(1984). To state a cause of action for legal malpractice, a
plaintiff must plead: (1) that the attorney owed the plaintiff a
duty of care arising from an attorney-client relationship; (2) that
the defendant breached that duty; and (3) that as a proximate
result, the plaintiff suffered actual damages. Howard v.
Druckemiller, 238 Ill. App. 3d 937, 941 (1992).
Although the subject of attorney-client sexual relations has
been the subject of much recent debate within the legal community,
our research has uncovered only one Illinois case addressing whether
such conduct constitutes legal malpractice. See Suppressed v.
Suppressed, 206 Ill. App. 3d 918 (1990). In Suppressed, the
plaintiff alleged that her attorney "psychologically coerced or
seduced her into having sexual relations with him at the same time
that he was to be representing her in a divorce action."
Suppressed, 206 Ill. App. 3d at 920. As in the instant case, the
plaintiff asserted that she submitted to these sexual demands out
of fear that her attorney would not adequately represent her
interests. Suppressed, 206 Ill. App. 3d at 921. The Illinois
Appellate Court, First District, held that such allegations did not
state a claim for legal malpractice because the alleged breach of
duty was not sufficiently linked to the attorney's legal
representation. Suppressed, 206 Ill. App. 3d at 924. The court
explained its reasoning as follows:
"In the present case, the only charge against defendant that
alleges a breach of his legal duty to his client is the
allegation that defendant's relationship with plaintiff
created a 'potential conflict of interest.' While this may be
true, we also note that plaintiff did not charge that an
actual conflict of interest existed or that she was harmed in
her legal action by such a conflict.
*** For this reason we do not believe that the higher
standard of care required of a fiduciary should extend to an
attorney's personal relationships with his clients, unless
there is tangible evidence that the attorney actually made his
professional services contingent upon the sexual involvement
or that his legal representation of the client was, in fact,
adversely affected." Suppressed, 206 Ill. App. 3d at 924-25.
The court further stated that, even if it were to assume that
the attorney breached his duty of care by engaging in sexual
relations with a client, the dismissal of the complaint was still
appropriate as the plaintiff had failed to allege any actual damages
stemming from a loss suffered in her underlying dissolution action.
Suppressed, 206 Ill. App. 3d at 925. The court noted that the
plaintiff's marriage was later dissolved and that the divorce
agreement was apparently satisfactory to her. Suppressed, 206 Ill.
App. 3d at 925. The court held that the plaintiff's mental
distress, absent any quantifiable injury stemming from her
attorney's legal representation, was insufficient to support an
action for legal malpractice. Suppressed, 206 Ill. App. 3d at 925.
Although this court has not had occasion to consider this
issue, we are persuaded by the foregoing discussion. To establish
a cause of action for legal malpractice, a plaintiff is obligated
to demonstrate that the attorney has breached his duty to provide
adequate legal representation and that, as a result, the plaintiff
has suffered actual damages. Howard, 238 Ill. App. 3d at 941.
Therefore, we find that, for purposes of a legal malpractice action,
the existence of an attorney-client sexual relationship is only
relevant to the extent that it has an adverse effect on the quality
of the legal representation. Suppressed, 206 Ill. App. 3d at 924-
25. Although such a relationship may submit an attorney to
discipline under the rules of professional responsibility or to
liability pursuant to another cause of action, we hold that the mere
existence of a sexual relationship is not sufficient to state a
cause of action for legal malpractice. See Suppressed, 206 Ill.
App. 3d at 924-25.
In the instant case, the plaintiff alleges that the defendant
coerced her into submitting to his sexual demands on two occasions.
The first occasion occurred during the defendant's representation
in the plaintiff's dissolution proceeding in Du Page County (No. 90-
-D--2865). As in Suppressed, we note that the plaintiff has not
pleaded that her attorney failed to adequately protect her legal
interests in the proceeding. The plaintiff's marriage was
eventually dissolved, and the dissolution agreement was apparently
satisfactory to her. As the plaintiff did not claim that her legal
position in the proceedings was harmed so as to result in actual
damages, we hold that such allegations do not support a claim for
legal malpractice.
The second alleged sexual contact between the plaintiff and the
defendant occurred during the defendant's representation in the
plaintiff's postdissolution petition filed in Cook County (No. 84--
D--21908). In addition to the allegations of sexual intercourse,
however, the plaintiff also alleges that the modification petition
filed by the defendant was without merit. The plaintiff therefore
alleges that the defendant breached his duty to provide adequate
legal representation by filing a frivolous pleading. As a result
of this conduct, the plaintiff contends that she has suffered actual
damages of $1,500, which represents the cost of the defendant's
legal services.
A more careful review of the plaintiff's complaint, however,
reveals that her allegation that the modification petition was
"without merit" is conclusory. A pleader is obligated to set out
ultimate facts that support the cause of action, and legal
conclusions unsupported by allegations of specific facts are
insufficient. Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 509-10 (1988). An actionable wrong cannot be made out
merely by characterizing acts as having been wrongfully done.
Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 520
(1989).
We note that the plaintiff herein has failed to allege any
facts explaining why she contends the petition was frivolous or
inadequately prepared. Additionally, the plaintiff has failed to
append a copy of the petition for modification or a copy of the
circuit court's order denying the petition. As the plaintiff has
failed to plead any facts supporting her conclusion that the
modification petition was "without merit," the trial court properly
dismissed this count. See Estate of Johnson, 119 Ill. 2d at 510.
In count II of her complaint, the plaintiff alleged breach of
fiduciary duty. As noted by the plaintiff, a fiduciary relationship
exists between an attorney and his client as a matter of law. In
re Imming, 131 Ill. 2d 239, 252-53 (1989). Once established, the
attorney-client relationship gives rise to certain duties owed by
the attorney to the client without regard to the specific terms of
any contract of engagement. Among the fiduciary duties imposed upon
an attorney are those of fidelity, honesty, and good faith in both
the discharge of contractual obligations to, and professional
dealings with, a client. Metrick v. Chatz, 266 Ill. App. 3d 649,
656 (1994). When in the course of his professional dealings with
a client, an attorney places his personal interest above the
interest of the client, the attorney is in breach of his fiduciary
duty by reason of the conflict. In re Rosin, 118 Ill. 2d 365, 381
(1987). The breach of fiduciary duty by an attorney gives rise to
an action on behalf of the client for proximately resulting damages.
Bauer v. Hubbard, 228 Ill. App. 3d 780, 785 (1992). An action for
the breach of fiduciary duty is not a tort; rather it is governed
by the substantive law of contracts. Kinzer v. City of Chicago, 128 Ill. 2d 437, 445 (1989).
Our research has uncovered only one Illinois case considering
whether an attorney breaches his fiduciary obligations by coercing
his client to engage in sexual relations during the course of the
representation. See Doe v. Roe, 289 Ill. App. 3d 116 (1997). In
that case, the plaintiff submitted to her divorce attorney's sexual
advances out of fear that he would discontinue or compromise his
representation of her. Doe, 289 Ill. App. 3d at 121. After the
plaintiff's husband became aware of the relationship, the attorney
failed to seek the payment of the plaintiff's legal fees from her
former husband as allowed pursuant to section 508 of the Illinois
Marriage and Dissolution of Marriage Act (750 ILCS 5/508 (West
1996)). Doe, 289 Ill. App. 3d at 121. The attorney subsequently
obtained a $2,500 judgment against the plaintiff, representing his
unpaid attorney fees. Doe, 289 Ill. App. 3d at 122. At the
attorney's suggestion, the plaintiff agreed to continue their sexual
relationship in order to be released from the payment of the
judgement. Doe, 289 Ill. App. 3d at 122.
The Doe court held that these allegations set forth sufficient
facts to state a cause of action for the breach of fiduciary duty.
Doe, 289 Ill. App. 3d at 130-31. The court noted that the attorney
declined to pursue the plaintiff's right to seek reimbursement of
attorney fees out of fear of personal embarrassment and potential
professional discipline; therefore, the attorney had placed his own
personal interests above the interests of his client. Doe, 289 Ill.
App. 3d at 123. The court concluded that the plaintiff was entitled
to seek the recovery of her attorney fees, as well as damages for
her emotional distress, commenting:
"We believe the plaintiff has pled sufficient facts to support
the conclusion that the defendant used his position as the
plaintiff's attorney and his knowledge of her dependence upon
him to gain sexual favors, thus breaching his fiduciary duty.
Additionally, the plaintiff's complaint also contains facts
from which it can be inferred that, at the time the defendant
engaged in sexual relations with the plaintiff, he should have
known of her dependence upon him and the emotional distress
that could result from such behavior. In sum, we find that
the plaintiff has pled sufficient facts to enable her to
pursue damages for mental distress in her breach of fiduciary
duty claim." Doe, 289 Ill. App. 3d at 130-31.
We agree that an attorney breaches his fiduciary duty to his
client by exploiting his position as an attorney to gain sexual
favors. We believe that such a breach arises where the attorney:
(1) makes his legal representation contingent upon sexual
involvement; (2) compromises the client's legal interests as a
result of the sexual involvement; or (3) uses information, obtained
in the course of representing a client which suggests that the
client might be unusually vulnerable to a suggestion of sexual
involvement, to seduce the client. Doe, 289 Ill. App. 3d at 129.
We caution, however, that sexual intercourse between two consenting
adults is not, of itself, actionable conduct. Hertel v. Sullivan,
261 Ill. App. 3d 156, 160 (1994). Moreover, we note that the nature
of the attorney-client relationship is to provide legal services
rather than to improve a client's mental or emotional well-being.
See Suppressed, 206 Ill. App. 3d at 923-24.
In the instant case, unlike Doe, there have been no allegations
that the defendant made his legal representation contingent upon the
plaintiff's sexual involvement or that he compromised the
plaintiff's legal interests as a result of the sexual involvement.
Although the plaintiff contends that the modification petition filed
by the defendant was without merit, we have already found that these
allegations are unsupported conclusions of law. Finally, although
the plaintiff contends that the defendant was aware of the
plaintiff's "severe psychopathology" as a result of the
psychological evaluation attached to the judgement of dissolution
in cause No. 84--D--21908, we note that the first sexual encounter
between the plaintiff and defendant occurred well before the
defendant obtained this report. Moreover, the complaint does not
specifically allege that the defendant used the information
contained in the psychological evaluation in order to seduce the
plaintiff. For all of these reasons, we find that the facts alleged
herein are distinguishable from Doe and that they do not rise to the
level of a breach of fiduciary duty. Accordingly, we hold that the
trial court did not err in dismissing count II of the plaintiff's
complaint.
Count III of the plaintiff's complaint purports to be
predicated upon common-law negligence. The count alleges that the
defendant had a duty to exercise ordinary care for the safety of the
plaintiff and that he breached this duty by encouraging her to
engage in sexual intercourse with him even though he knew she was
mentally impaired. The trial court dismissed this count, finding
that it failed to allege sufficient facts to state a cause of
action. We agree. The plaintiff fails to offer any authority for
the propriety of such a cause of action, nor are we aware of the
existence of any such authority. Moreover, we fail to see how the
defendant breached his duty of ordinary care towards the plaintiff
by engaging in sexual intercourse with her. See Hertel, 261 Ill.
App. 3d at 160. We therefore conclude that the trial court properly
dismissed count III of the plaintiff's complaint.
Count IV of the plaintiff's complaint alleges an action for the
intentional tort of battery. The complaint specifically alleges
that, "the conduct of the defendant on June 16, 1993, constituted
a battery upon the plaintiff, in that the touching was without
permission and provocation." The trial court dismissed this count
pursuant to section 2--615 of the Code, finding that it failed to
allege sufficient facts to state a cause of action. Specifically,
the trial court found that these allegations failed to respond to
the defendant's demand for a bill of particulars filed on March 28,
1996. In a previous dismissal order, the trial court had instructed
the plaintiff to amend her complaint in a manner that was responsive
to the defendant's demand for a bill of particulars. In dismissing
the plaintiff's third amended complaint, the trial court commented:
"And Count IV, I respectfully submit that you did not
follow the request that I made of providing sufficient detail
so as to meet the requirements of the demand for the Bill of
Particulars."
Initially, we note that the dismissal of a plaintiff's
complaint with prejudice as a sanction for the failure to provide
a bill of particulars is not permitted by section 2--607 of the Code
(735 ILCS 5/2--607 (West 1996)). Bejda v. SGL Industries, Inc., 82 Ill. 2d 322, 329 (1980). That section provides:
"If the pleader does not file and serve a bill of
particulars within 28 days of the demand, or if the bill of
particulars delivered is insufficient, the court may, on
motion and in its discretion, strike the pleading, allow
further time to furnish the bill of particulars or require a
more particular bill to be filed and served." 735 ILCS 5/2--
607(b) (West 1996).
Under this section, the most severe sanction authorized is the
striking of the pleading to which the bill of particulars relates.
Bejda, 82 Ill. 2d at 328. A dismissal of a complaint with prejudice
cannot be equated with the striking of a pleading and is not
permitted under this section. Bejda, 82 Ill. 2d at 328-29.
Although the trial court's dismissal of the plaintiff's action
is not authorized by section 2--607 of the Code, the dismissal could
nonetheless be upheld as within the court's inherent authority to
control its business. Bejda, 82 Ill. 2d at 329. A plaintiff's
failure to take any action as ordered by the trial court evidences
want of prosecution by that party, and the trial court may dismiss
a suit for the failure of the complainant to prosecute it with due
diligence. Bejda, 82 Ill. 2d at 329. It has therefore been
recognized by our supreme court that the failure to file a bill of
particulars in disobedience of a trial court's order may be a ground
for dismissal with prejudice. Bejda, 82 Ill. 2d at 329.
Notwithstanding the general authority of the trial court to
dismiss an action, we conclude that the dismissal of count IV was
not proper. See Bejda, 82 Ill. 2d at 330. In order to state a
cause of action for intentional battery, a plaintiff must allege a
willful touching of another person without the consent of the person
who is touched. Pechan v. DynaPro, Inc., 251 Ill. App. 3d 1072,
1084 (1993). An action for battery does not depend on the hostile
intent of the defendant, but on the absence of the plaintiff's
consent to the contact. Pechan, 251 Ill. App. 3d at 1084. Our
review of count IV reveals that the plaintiff has alleged that, on
June 16, 1993, the defendant removed her clothing, pushed her onto
a kitchen rug, and initiated sexual intercourse. Further, although
the plaintiff does not specifically allege that such conduct was
"without her consent," she nonetheless alleges that the conduct was
"without permission and provocation." We conclude that such
allegations state sufficient facts to allege an action for
intentional battery. See Pechan, 251 Ill. App. 3d at 1084.
While it is true that the plaintiff did not respond to the
defendant's demand for a bill of particulars, the information that
the defendant requested in his demand exceeded the ultimate factual
elements that the plaintiff is obligated to plead. Specifically,
the defendant sought information relating to the specific content
of the plaintiff's psychiatric reports; the date when the defendant
obtained such reports; the date or dates of the alleged
conversations between the defendant and the plaintiff's
psychiatrists; the name of the psychological condition from which
the plaintiff suffered at the time in question; the nature of the
outward symptoms of the plaintiff's "severe psychopathology" at the
time in question; and why the plaintiff's psychological condition
prevented her from giving knowing consent to the act.
Although such information may be pertinent and relevant during
the subsequent litigation and trial of this count, the information
is beyond the plaintiff's burden of initial pleading and is more
appropriately obtained during discovery. See generally Bejda, 82 Ill. 2d at 330. The plaintiff is only obligated to plead those
ultimate facts necessary to state a cause of action and to inform
the defendant of the nature of the claim brought against him.
Adkins, 129 Ill. 2d at 518. The pleader is not required to set out
his evidence; only ultimate facts to be proved should be alleged,
and not evidentiary facts tending to prove ultimate facts. Stinson
v. Physicians Immediate Care, Ltd., 269 Ill. App. 3d 659, 662
(1995). As noted above, we believe that the plaintiff herein
pleaded sufficient ultimate facts to state a cause of action for
intentional battery. We therefore conclude that the trial court
erred in dismissing count IV and remand the cause for further
proceedings as to that count.
For the foregoing reasons, the judgment of the circuit court
of Du Page County is affirmed in part and reversed in part, and the
cause is remanded for further proceedings consistent with this
opinion.
Affirmed in part and reversed in part; cause remanded.
INGLIS and BOWMAN, JJ., concur.
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