Moore v. Owens

Annotate this Case
                               NO. 5-97-0936

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

ROGER F. MOORE,                      )  Appeal from the 
                                     )  Circuit Court of 
     Plaintiff-Appellant,            )  Franklin County.
                                     )  
v.                                   )  No. 97-L-14
                                     )  
CARROLL L. OWENS,                    )  Honorable
                                     )  James M. Wexstten, 
     Defendant-Appellee.             )  Judge, presiding.  
_________________________________________________________________

     JUSTICE MAAG delivered the opinion of the court:  
     On January 29, 1993, plaintiff, Roger Moore, was arrested and
charged with driving under the influence of alcohol (DUI) (625 ILCS
5/11-501 (West 1992)) and several other traffic offenses.  Moore
was represented by Carroll Owens, the Franklin County public
defender.  After a jury trial on August 31, 1993, Moore was
convicted on the DUI charge.  The next day, Owens filed a motion to
withdraw as Moore's counsel.  Moore appealed the conviction on a
variety of grounds.  On March 29, 1996, this court reversed Moore's
conviction based on the ineffective assistance of counsel, and we
remanded for a new trial.  People v. Moore, 279 Ill. App. 3d 152,
663 N.E.2d 490 (1996).  Unknown to this court at the time, some
nine months prior to the date we filed our opinion reversing
Moore's conviction, Moore entered into a plea agreement with the
Franklin County State's Attorney in a different, unrelated case. 
As a part of that plea in the other case, Moore agreed to the
following matters with respect to his then-pending DUI appeal:
     1.   Moore agreed to dismiss the appeal of his DUI conviction.
     2.   Moore agreed that if the appeal of the DUI conviction
          could not be dismissed, any decision on the appeal would
          be considered moot.
     3.   Moore signed a letter to be sent to the appellate
          defender's office, authorizing the dismissal of his
          appeal.
     As stated previously, this court was never made aware of
Moore's agreement to dismiss his appeal in the DUI case.  We still
do not know the reason for the failure to move for a dismissal.
     After this court's March 29, 1996, opinion in the DUI case,
the circuit court on remand dismissed the DUI charge against Moore
pursuant to the plea agreement.  Moore then sued Owens for legal
malpractice.  The circuit court granted Owens' motion for summary
judgment on statute of limitations grounds, and Moore appeals.
     Moore's initial brief is devoted to a discussion of the
statute of limitations issue.  Owens' brief responds to the statute
of limitations argument but also raises a claim that the plea
agreement renders moot the matters at issue in this case and
independently justifies summary judgment.
     It is axiomatic that we are not bound by the trial court's
reasoning and may rely upon any ground present in the record to
sustain the trial court's decision.  Bell v. Louisville & Nashville
R.R. Co., 106 Ill. 2d 135, 148, 478 N.E.2d 384 (1985).  For this
reason, we need not address the statute of limitations issue. 
Instead, we view the grant of a summary judgment as proper for a
wholly distinct reason.  
     The elements of a legal malpractice claim in Illinois are: 
(1) the existence of an attorney-client relationship, (2) a duty
arising from that relationship, (3) a breach of that duty on the
part of the attorney, (4) proximate cause, and (5) damages. 
Wissore v. Alvey, 204 Ill. App. 3d 931, 562 N.E.2d 978 (1990).  In
a legal malpractice case arising from the conviction of a criminal
defendant allegedly due to the ineffective assistance of counsel,
some courts subscribe to the rule that the client/criminal
defendant must also prove the additional element of "actual
innocence".  While no Illinois case has previously addressed this
issue, the following cases are illustrative of decisions which have
applied this rule.  Levine v. Kling, 123 F.3d 580 (7th Cir. 1997)
(applying and predicting Illinois law); Peeler v. Hughes, 909 S.W.2d 494 (Tex. 1995); Glenn v. Aiken, 569 N.E.2d 783 (Mass.
1991).  Other courts have refused to adopt such a requirement. 
Krahn v. Kinney, 538 N.E.2d 1058 (Ohio 1989) (and cases cited
therein).  Both Moore and Owens seem to agree that proof of
innocence is an element of proof in Moore's case.  We agree with
those courts which require the criminal defendant to prove his
innocence in a later legal malpractice action against his criminal
defense counsel.  We hereby adopt that rule.  We must now consider
the application of such a rule.  
     "Tort law provides damages only for harms to the plaintiff's
     legally protected interests, Restatement (Second) of Torts, 1
     comment d, 7(1) (1965), and the liberty of a guilty criminal
     is not one of them.  The guilty criminal may be able to obtain
     an acquittal if he is skillfully represented, but he has no
     right to that result (just as he has no right to have the jury
     nullify the law, though juries sometimes do that), and the law
     provides no relief if the "right" is denied him.
          Criminal law entitles a criminal defendant to competent
     counsel, but the consequence if counsel is incompetent and
     conviction results is a new trial, not an acquittal.  E.g.,
     Holman v. Page, 95 F.3d 481, 492 (7th Cir. 1996).  If the
     defendant is guilty in law, eventually he will probably be
     convicted even if competently represented--and he should be. 
     To award the defendant eventually justly convicted and
     imprisoned substantial money *** for the loss of his liberty,
     or for that matter any money, is to give him relief to which
     criminal law, and the federal constitutional right to counsel,
     does not entitle him."  (Emphasis in original.)  Levine, 123 F.3d  at 582.
     We do not believe that even if a criminal defendant is
acquitted on retrial, that alone will suffice as proof of
innocence, although it may be evidence for a fact-finder to
consider.  Rather, because of the different burdens of proof in a
civil trial and a criminal trial, we believe that the plaintiff
must also prove independently in the civil trial that he was
actually innocent and "not just lucky".  Levine, 123 F.3d  at 583.
     Given defendant's plea agreement, in which he agreed to
dismiss his appeal of the DUI conviction, he effectively agreed to
allow his conviction to stand.  We must hold him equitably estopped
now to rely on the reversal of his conviction to show his
innocence.  Cf. Dryz v. Bol, 19 Ill. App. 2d 406, 153 N.E.2d 859
(1958); Edwards v. Holcomb, 67 Ill. App. 2d 479, 214 N.E.2d 512
(1966).  After all, under his plea agreement he stated his
willingness to let the conviction stand.  Moreover, it was solely
because of the plea agreement that on remand the charges were
dismissed and he was not retried.  We also note that Moore has
never claimed in his legal malpractice action either in the trial
court or this court that he was actually innocent.  He has only
claimed that his conviction was reversed.  Proof that a conviction
was reversed based on the ineffective assistance of counsel is
vastly different from proof of innocence.
     For the foregoing reasons, the order granting summary judgment
in favor of Owens is affirmed.

     Affirmed.  

     WELCH, P.J., and CHAPMAN, J., concur.



Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.