2013 I LApp (1st) 123122 FOU RTH DIVI SI ON September 30, 2013
No. 1-12-3122
KENNET H A. NEL SON,

Plaintiff-Appellant,
v. QUARL ES AND B RADY, L L P,

Def endant- Appellee
. ) ) ) ) ) ) ) ) ) Appea l from the Circuit Court of Cook County No. 11 L 2107 Honora ble J eff rey L awr ence , J udg e Presiding
. J USTI CE EPS TEI

N deliver ed the judg ment of the c ourt, with opinion. Presiding Justice Howse a nd J ustice L avin conc urre d in the judgme nt and opinion. OP INION ¶ 1 This case involves an ac tion for leg al malpra ctice f iled by plaintiff Kenne th A. Nelson ag ainst defe ndant Quar les & Br ady , L L P, the law firm that re prese nted him in a fede ral a ction involving a dispute c oncer ning the terms of a

stock purcha se agree ment betwee n plaintiff and his former business partner , Richard Curia. Plaintiff f iled this appeal a fter the circ uit court dismiss ed his third amende d complaint with prejudice pursuant to sec tion 2-615 of the Code of Civil Procedur e (735 I L CS 2-615 (West 2010)) for f ailing to state a ca

use of a ction. For

the
rea sons that follow, we re verse and re mand. ¶ 2 BA CKGROUND ¶ 3 For

purposes of our

revie w of the r

uling on de fenda

nt's motion to dismis s, where the leg al sufficie ncy

of the c omplaint has been attacked, w e ac cept a s true the a lleg ations in plaintiff' s1-12-3122

third amende d complaint. See Impe rial Apparel, Ltd. v. Cosmo's Designer Direct, I nc. , 227 I ll. 2d 381, 384 (2008); River Park , Inc. v . City of Highland Park , 184 I ll. 2d 290, 293 (1998). We also interpre t the alleg ations in the light most favora ble to plaintiff. Impe rial Apparel, Ltd. , 227 I ll. 2d at 384. ¶ 4 Under lying Contra ctual Dispute B etwee n Plaintiff and Richard Curia ¶ 5 Acc ordingto the alleg ations of plaintiff' s third amended c omplaint, he was the be nefic ial
owner of a ma jority of shar es in two corpor ations that owned two c ar de aler ships, Ken Nelson AutoPlaza, I nc. (AutoPlaz a), a nd Ken Ne lson AutoMall, I nc. (A utoMall). A dispute arose betwee n plaintiff and Richa rd Curia, with whom plaintiff ha d contra cts that included a written 1989 stock purcha se agree ment, a wr itten 1993 modification ag ree ment, and an or al 2004 ag ree ment. The dispute involved Curia' s attempt to ex erc ise ce rtain options in the 1989 ag ree ment. Curia claimed it entitled him to purcha se shar es in the two ca r dea lerships, which would forc e plaintiff to sell his majority interests in the dea lerships and the la nd upon which they
wer e situated. Plaintiff cla imed that the 1989 agree ment was inoper ative and une nforc eable
. Specifica lly , plaintiff alleg ed that, within a month of its execution, both he and Curia “e mbarke d
on a cour se of c onduct over a per iod of y ear s that materially depar ted from the te rms of the 1989 [agr eeme nt] in deed a

nd words, all of which made it impossible for the thre e 1989 [ag ree ment' s] options to be ex erc ised in acc ordanc e with their ter ms.” ¶ 6 The 1989 a g ree ment was attached to plaintiff' s complaint. As plaintiff notes, the ag ree ment rec ited that plaintiff was the sole owner of all of the outstandingshare s of ca pital stock in the dea lerships, and that, a s of that date, AutoPlaz a had 8,180 sha res, a nd AutoMall had
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1,200 share s. The 1989 agree ment provided that plaintiff a gree d “to sell, assig n, transfe r, and convey to [ Curia] all right, title and intere st in and to 1000 shares of capital stock in [AutoPlaz a] and 144 shar es of c apital stock in [AutoMall] .” The purcha se price was $100,000 a nd the closing date wa s to be on or bef

ore F ebrua

ry 15, 1989. Plaintiff notes that this would have re sulted in plaintiff re taining 7,180 sha res of Plaza stock and 1,056 share s of Mall stock. ¶ 7 The 1989 a g ree ment also g ave Curia a ser ies of thre e additional, succ essive options to purcha se the re maining sha res. Spec ifically , para g raph 4 pr ovided that Curia had a n initial option to purchase a

n additional 1,000 share s of ca pital stock in AutoPl aza and 144 sha res of capital stock in AutoMall for an additional $100,000. Plaintiff notes that this would have resulted in plaintiff r etaining6,180 share s of Plaza stock and 912 shar es of Ma ll stock, while Curia would have owned 2,000 sha res of Plaza stock and 288 share s of Mall stock. Afte r exercisingthis ini tial option, C uria c ould exercise the ne x t option. ¶ 8 The sec ond option provided that Curia could “ purcha se fr om [ plaintiff] an additional 2,009 share s of ca

pital stock of [AutoP laza] and 300 shares of capital stock in [AutoMall] which share s with previous purcha sed shar es would re prese nt 49% of the issued a nd outstanding sha

res of ca pital stock in said corporations.” The purc hase pr ice f or these sha

res wa s to be based on a define d valuation formula a nd was to “be deter

mined by addingto the total net worth of e ach corpor ation a sum repr esentingfifty (50) pe r ce nt of the total ac cumulated de prec iation and including the ' L I FO' (last in first out) re serve plus twenty (20) pe r ce nt of the total ' L I FO' rese rve and dividing the total sum thereof by the number of

share s in eac h corpor ation.” This formula require d ref

ere nce to the monthly

opera ting r eports issued by

Gene ral Motors Corporation and
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Nissan Motor Corporation. ¶ 9 As to the third and fina l option, paragraph 4 state d: “Afte r exercisingthe first two options to purcha se as pr ovided in this Agr eeme nt, [ Curia] shall have a third option to purcha se fr om [pl aintiff] the remaining4,171 share s of stock in [AutoP laza] and 612 shares of stock in [AutoMall] , provided that [Curia] also offer to purc hase the land and f our buildings of [AutoP laza].” The purc hase pr ice of the share s, simil ar to that of the share s descr ibed in the second option, wa s to be based on a valuation formula. T he purc hase pr ice of the land and the buildings wa s to be deter

mined by an appr aiser. ¶ 10 The 1989 a g ree ment require d Curia to provide notice in writing of his election to exercise
eac h option. The contra ct also re quired that he make a lump-sum cash pay

ment to plaintiff of the amount require d under the formula 60 da y s after notice wa s sent. ¶ 11 Curia subsequently did not pay

the initial $100,000 for 1,000 share s of AutoPlaza and 144 share s of AutoMall. Instead, at some point (the complaint contains no date ), Curia pa id $200,000. Appar ently , at some point (the complaint conta ins no date), “ eac h corpor ation was re

capitalized such that ther eaf ter [plaintiff] owned 8,000 share s of [AutoP laza] (inst ead of 7,180 as specifie d in the 1989 [agr eeme nt] ), and 1,200 sha res of [AutoMall] (ver sus 932 specified in the 1989 [agr eeme nt] ).” Curia then “owne d 2,000 share s of [AutoP laza] (versus 1,000 specif ied in the 1989 [ag ree ment]) and 300 share s of [AutoMall] (ver sus 288 specified in the 1989 [agr eeme nt] ). ¶ 12 In 1993, plaintiff and Curia e x ecute d a modification ag ree ment (the 1993 Modification Ag ree ment), which w as also attac hed to plaintiff' s complaint. The agree ment rec ited, in part, that
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“a mutual mistake w as made by [pl aintiff] and Curia in deter mining the f

air mar ket value of

the capital stock of

said corpor ations and in eva luating the minority interest in said cor

porations which we re intende d to be sold by [pl aintiff] and purcha sed by Curia pursuant to par ag raph 1 a nd para g raph 4 of

[t he 1989 agree ment].” The 1993 Modification Agree ment further altere d the number of sha

res issued a

nd outstanding a

nd the amounts owned by eac h which, plaintiff a lleg es, undersc ored “ the impossibil ity of transf err ing the number of sha

res spe cified in the 1989 [agr eeme nt] options.” ¶ 13 Plaintiff alleg es that, in the 1993 Modification Agr eeme nt, he and Curia “ ag ree d that the corpor ations would authorize and issue additional stock so that Curia, without the pay ment of additional monies, would approximately double his ownership intere st in each c orporation.” Pursuant to this agr eeme nt, Curia obtained an a dditional 5,306 shares in AutoPlaza (which incre ased his owne rship interest to 47.7%) a nd an additional 480 shar es in AutoMall (which incre ased his owne rship interest to 43.3%). ¶ 14 The 1993 Modification Agr eeme nt also contained a para g raph 5, e ntitled “Purchase of Additional Shares,” which stated: “Curia sha ll have the r ight to purc hase a dditional shares of stoc k in said corpor ations upon those terms and c onditions subs equently ag ree d upon by

the parties he reto. The purcha se price for sa id additional shares of stock shall be deter mined by addingto the total net worth of e ach c orporation a figure repr esentingthe ac cumulated ' L I FO' (last in first out) re serve and dividing the total sum thereof by

the number of

share s of ea ch cor

poration.”
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Plaintiff alleg es that the e ffe ct of this para g raph w as that “a ny future pur chase of shar es by Curia afte r 1989 could not be taken pursua nt to the 1989 [ ag ree ment] because e x erc ise of the 1989 options was no longe r possible bec ause both the substantial c hang es in the number of share s issued and outstandingin eac h corpor ation and the substantial cha ng es in the number of

share s owned by [pl aintiff] and Curia we re c ompletely differ ent from a

nd inconsistent with the 1989 [agr eeme nt] .” Plaintiff furthe r alleg es: “B eca use pursua

nt to the 1993 Modification, Curia
rec eived substantial additional shar es in ea ch cor poration without paying a ny additional monies,
as a matter of law

and fa ct, af

ter the 1993 Modific ation, the 1989 [ag ree ment' s] Opti ons were completely

inoperative and inca

pable of beingexercised in ac corda nce w ith their own terms.” As an e x ample, plaintiff notes that if Curia had de manded plaintiff se ll him 2,009 s hare s in AutoPlaza – pursuant to the second option in the 1989 agree ment – that sale would have re sulted in Curia owningmore than 49% of AutoPlaza. This result, plaintiff contends, would have made Curia a major ity

owner and wa s “cle arly

contra ry to the terms of the option.” Plaintiff fur ther states: “L ikewise, if, in orde r to avoid bec oming a majority owner , Curia offe red to purc hase le ss than the 2,009 shar es re quired unde r the 1989 [agree ment' s] S econd O ption, this would have been c ontrary

to the express terms of the option languag e and ths would have re ndere d such an exercise inoper ative.” ¶ 15 In 2004, plaintiff and Curia be g an discussingplaintiff' s selling a ll of his remainingstock so that Curia would own 100% of both corporations. According to plaintiff, in J uly

2004, they enter ed into an ora l ag ree ment that Curia would purc hase a ll of plaintiff' s remainingstock for $4.2 milli on. Plaintiff and Curia agree d that a closingwould take plac e prior to De cembe r 31,
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2004. They

also agree d to, and did, undertake seve ral a ctions to impl ement the a g ree ment which included: (1) obta ining c orporate re solutions from both boards to acc ept the ora l ag ree ment; (2) Curia applying f

or, and r ece iving, a

loan commitment from Fif th Third Ba

nk for $4.2 million to buy out plaintiff' s remaining

owner ship interest; and (3) plaintiff' s writing le tters to the various automobile manufa cture rs, as re quired by the dea lerships' fra

nchise a g ree ments, informingthem of the c orporate re solutions and seekingapprova l for the tra nsfer of owne rship. ¶ 16 Subsequently , althoug h plaintiff was r eady , willing and a ble to complete the sa le, Curia failed to tende r the $4.2 million and ref used to perf

orm. Instead, on Mar ch 2, 2005, Curia se nt a “Notice of Exercise of

Option” informingplaintiff that he wa s exercisingthe sec ond option under the 1989 ag ree ment. By doing so, Curia

was attempting to ac quire a ll of plaintiff' s
rema ining sha

res f or fa r less that the $4.2 million that the 2004 Oral Agree ment require d. Curia stated that he ha d “pre viously exercised [his] first option,” ref erring to the $200,000 pa y ment he had alr eady

made. Curia of

fer ed to purc hase a

nd pay for 193 sha

res of AutoPlaza stock and 170 share s of AutoMall stock. Howe ver, a s plaintiff notes, the sec ond option in the 1989 ag ree ment require d Curia to purcha se and pa y for 2,009 sha

res in AutoPlaza and 300 shar es in AutoMall. ¶ 17 On Marc h 3, 2005, Curia sent plaintiff a second notice seeking

to exercise the third option of the 1989 ag ree ment. He did not see k to purcha se the number of shar es delineated in the ag ree ment but did seek to purcha se all of plaintiff' s remainingshare s, the land, and the buildings as set for th in the third option. P laintiff' s position was that Curia' s attempts were ineffe ctive beca use the 1989 a g ree ment' s options were no long er ope rative, a nd that Curia bre ache d the 2004 oral a g ree ment.
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¶ 18 Plaintiff's L eg al Malpra ctice A ction Ag ainst Defe ndant ¶ 19 On or a

bout March 9, 2005, pla intiff reta ined def endant to re prese nt him in t his dispute with Curia to, amongother thing s, protect his stock owne rship interests in the dea lerships, enfor ce pla intiff' s contrac tual rig hts, and preve nt Curia from attemptingto enforc e Curia' s purported r ights. Shortly afte r plaintiff re tained def endant, it filed a

decla ratory judgme nt action in fede ral c ourt ag ainst Curia seeking to have the c ourt dec lare that Curia could not exercise the options in t he 1989 Agree ment. Curia then initiated a se parate ac tion ag ainst plaintiff in the
same c ourt seeking , amongother thing s, specific perf ormanc e of the 1989 ag ree ment to force plaintiff to sell all of his share s in the deale rships. ¶ 20 On Fe bruar

y 6, 2006, the district court e ntere d partial summary judgme nt in Curia's f

avor, holding that he could exercise the options in t he 1989 agree ment. On J une 27, 2007, the district court e ntere d an additional par tial summary

judgme nt in Curia's f

avor, or dering

plaintiff to sell all of his rema ining sha

res in AutoPlaza to Curia. On J uly 13, 2007, defe ndant filed a motion to stay the J une 27, 2007 orde r. De fenda nt did not recommend that plaintiff post a bond pe nding appea l. On J uly

18, 2007, defe ndant filed a notice of a

ppeal of the dec isions in C uria' s favor . On August 10, 2007, the district court denied the motion to s tay . On September 5, 2007, defe ndant filed a motion to stay

the district court' s order

and, ag ain, did not offer

to post a bond. The Seventh Circuit denied the motion to stay
. ¶ 21 Whil e the a

ppeal wa s pendingin the Seventh Circuit, pursuant to the district cour t orders, plaintiff was f

orce d to, and did, sell all of his remainingshare s to Curia on or about Apr il 30, 2008. Plaintiff then discharg ed def endant a nd hired ne w counse l to repre sent him in his appeal.
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On J une 3, 2008, the c ourt g rante d plaintiff' s motion for substitution of attorney . On Novembe r 20, 2009, the Seventh Circuit, sua sponte , decide d that the contra ct was a mbiguous, re verse d the district court' s judgme nt, and re manded the c ase. 1 ¶ 22 Duringthe 11⁄2 y ear s betwee n the time Curia obtained plaintiff' s share s on April 30, 2008, and the Seve nth Circuit's de cision, Curia had obtaine d substantial loans and enc umbere d AutoPlaza's assets by

using the m as security

for the loa

ns. Plainti ff a lleg es that, as a result, 2 Curia mater ially

and neg atively

impaired AutoPlaza' s assets and ther e wa s no prac tical means f or plaintiff to undo the sale of his shares to Curia. Plaintiff settled with Curia to minimiz e his continued losses and w as unable to reg ain his majority owner ship of AutoPlaza. ¶ 23 Plaintiff filed the instant leg al malpra ctice a ction ag ainst defe ndant, alleg ing that, during the cour se of r epre sentinghim, defenda nt brea ched its duties to him in that it “either neg lige ntly and ca rele ssly omitted and failed to pe rfor m, or neg lige ntly

and ca rele ssly perf ormed, c erta in service s.” Plaintiff furthe r alleg ed that def endant' s “neg lige nt and ca rele ss conduct included but is not li mited to the complete fa ilure to asser t a meritorious ca

use of a ction ag ainst Curia on [pl aintiff' s] behalf and the c omplete fa ilure to asser t meritorious defe nses to Curia' s alleg ed
cause s of ac tion.” ¶ 24 Plaintiff subsequently amende d his complaint. After a hear ing, the trial court dismissed plaintiff' s second a

mended c omplaint for fa ilure to state a c ause of action. Plaintiff then filed a
Curia v. Nelson , 587 F.3d 824 ( 7th Cir. 2009). 1 Curia and plaintiff a

ppare ntly ag ree that Curia' s right to purchase any rema ining sha

res 2 in AutoMall was ef

fec tively terminated when they

enter ed into a sepa

rate modification ag ree ment in 1997 involving a third pa rty ' s purcha se of stock. Curia v. Nelson , 587 F.3d at 827. 91-12-3122

motion to reconsider or , in the alternative, for lea ve to file a

third amende d complaint. Plaintiff incorpora ted into the third amende d complaint the af fidavit of a le g al malpra ctice e x pert, Edwa rd T. J oy ce, a

Chicag o attorney

with over 45 year s of experienc e in complex commercia l liti g ation. ¶ 25 On Octobe r 17, 2012, af ter a hear ing, the trial court a llowed plaintiff' s motion t o
rec onsider and a llowed him to file a third amende d complaint, which the c ourt dismissed. The court de cided, a s a matter of law, that def

endant' s actions constituted nonac tionable er rors of judgme nt, and not profe ssional neg lige nce. Plaintiff now a ppeals. ¶ 26 ANALYSI S ¶ 27 A motion to dis miss for failure to state a c ause of action pursua

nt to section 2-615 attac ks “the leg al suffic iency

of a c omplaint based on def ects a ppare nt on its face.” Pooh-Bah Enterprises, Inc. v . County of Cook, 232 I ll. 2d 463, 473 (2009). “A c ircuit court should g rant a section 2-615 motion to dismi ss only if it is clearly

appar ent that no set of f

acts c an be pr oved that would entitle the plaintiff to re lief.” ( Interna l quotation marks omitted.) Estate of Powell v. Harris v. John C. W

unsch, P.C. , 2013 I LApp (1st) 121854, ¶ 15. A t this pl eadingstag e, a plaintiff is not require d to prove his ca se and ne ed only alleg e suff

icient fa cts to state all eleme nts of the c ause of

action. Fox v . Seiden , 382 I ll. App. 3d 288, 294 (2008). When re viewinga section 2-615 motion, we a cce pt as true “ [a] ll well-pleade d fac ts and rea sonable infe renc es that can be drawn from those fa cts.” Tuite v. Corbitt , 224 I ll. 2d 490, 509 (2006). We also interpre t the alleg ations in the complaint in the light most favora ble to the plaintiff. Simpkins v. CSX Transport ation, Inc. , 2012 I L110662, ¶ 13. Our r eview of the circ uit court' s order

g rantingthe section 2-615 motion to dismi ss is de novo
. Id
. 101-12-3122

¶ 28 “To state a

cause of ac tion for leg al malpra ctice, the plaintiff must alleg e fa cts to establish (1) the de fenda

nt attorney

owed the pla intiff client a duty of due c are arisingfrom an attorney -client re lationship, (2) the attorne y brea ched that duty , (3) the c lient suffer ed an injury in the form of

actua l damag es, and ( 4) the a ctual dama g es re sulted as a pr ox imate ca use of the brea ch.” Fox v . Seiden , 382 I ll. App. 3d at 294. A leg al malpra ctice suit is by its nature depende nt upon a pre dicate la wsuit. Claire Associates v. Pontikes , 151 I ll. App. 3d 116, 122 (1986). Thus, a

leg al malpra ctice c laim presents a “ca se within a ca se.” Id . “[N]o m alpra ctice exis ts unless counsel' s neg lige nce ha s resulted in the loss of an unde rlying c ause of action, or the loss of a meritorious def

ense if the attorney

was de fendingin the underlying suit.” Id
. ¶ 29 By

g rantingdefe ndant' s motion t o dismiss , the trial cour t decided that, as a matter of law, defe ndant' s conduct c onstitut ed, at most, a mer e er ror of judgme nt and not profe ssional neg lige nce. Plaintiff now a rgues that, since he attache d an af fidavit of a le g al expert to his third amende d complaint, a fa ctual issue ar ose that pre cluded the tr ial court fr om dismi ssing his complaint. He c ontends that the cour t erre d in decidingas a matter of law that defe ndant' s failure s to assert plaintiff' s meritorious defe nses wer e mer e “e rror s of judg ment.” ¶ 30 “In I llinois the question of whe ther a lawyer ha s exercised a

rea sonable de g ree of ca

re a nd skill i n repr esentingand advisinghis client has alwa y s been one of fa ct.” Brown v. Gitlin , 19 I ll. App. 3d 1018, 1020 (1974); se e also Keef v. W iduch , 321 I ll. App. 3d 571, 577-78 (2001) (Whether a

duty is owed is a question of law , but “whethe r an attorney brea ched a

duty of ca re owed to a c lient is a question of fac t.”); Mayol v . Summers, W atson & Kimpel , 223 I ll. App. 3d 794, 806 (1992) ( “Whether a n attorney has exercise d a re asonable deg ree of ca re a nd skill i s a
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question of fa ct.”) ; Spivack , Shulman &Goldman v. Fore most Liquor St ore, Inc

. , 124 I ll. App. 3d 676, 683-84 (1984) (same) . Moreove r, this question of fac t must gene rally be dete rmined throug h expert testimony and usually

cannot be decide d as a ma tter of law
. Gelsomino v. G orov , 149 I ll. App. 3d 809, 814 (1986); see also Barth v. Reagan , 139 I ll. 2d 399, 407 (1990) (“ [T] he standard of

car e ag ainst which the attorney defe ndant' s conduct will be mea sured must g ener ally be esta blished throug h expert testimony .”); Mayol , 223 I ll. App. 3d at 806 (same)
. ¶ 31 Howeve r, althoug h the question of whe ther a lawyer ha s brea ched a

duty to his client prese nts a fac tual question, courts have held that the issue may be dec ided as a

matter of la

w under the doctrine of

judgme ntal immunit y

which provide s that “an attorney will ge nera lly

be immune from liability , as a matter of law , for a cts or omissions during the c onduct of litigation, which ar e the r esult of an hone st ex erc ise of prof essional judg ment.” McI

ntire v. Lee , 816 A.2d 993, 1000 (N.H. 2003) (citing W oodruff v. Tomlin , 616 F.2d 924, 930 ( 6th Cir. 1980) and Sun Valley Potatoes, Inc . v. Rosholt, Robertson &Tucker , 981 P.2d 236, 239-40 (I daho 1999)) . Both parties he re discuss the doc trine of “ judgme ntal immunit y ,” although no I llinois case has used the phrase . Nonethele ss, we believe the doctrine is consistent with I llinois law, which distinguishes betwee n neg lige nce a

nd mere err ors of judgment. As the I llinois Supreme Court has state d: “It is clea r that an attorney

is liable to his client only when he fails to exercise a rea sonable de g ree of
car e and skill; he is not liable for mer e er rors of judg ment.” Smiley v . Manche ster Insurance& Indem nity Co ., 71 I ll. 2d 306, 313 (1978) (c iting Brown v. Gitlin , 19 I ll. App. 3d 1018 (1974), citing Steve ns v. W

alker & Dex ter , 55 I ll. 151 (1870)); ac cord Kling v. Landry , 292 I ll. App. 3d 329, 333 (1997); O'Brien &Associates, P.C. v. Tim Thompson, Inc. , 274 I ll. App. 3d 472, 480
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(1995); Howard v. Druck emiller , 238 I ll. App. 3d 937 (1992); Mayol , 223 I ll. App. 3d at 806; Land v. Auler , 186 I ll. App. 3d 382, 384 (1989); Shanley v . Barnett , 168 I ll. App. 3d 799, 803 (1988); Goldstein v. Lustig , 154 I ll. App. 3d 595, 600 (1987); Gelsomino v. G orov , 149 I ll. App. 3d 809, 813-14 (1986) ; Segall v. Be rkson , 139 I ll. App. 3d 325, 328-29 (1985); Gruse v. Belline , 138 I ll. App. 3d 689, 695-96 (1985); Spivack , Shulman &Goldman v. Fore most Liquor Store, Inc. , 124 I ll. App. 3d 676, 683 (1984); Y ork v. Stiefe l , 109 I ll. App. 3d 342, 350 (1982), aff' d in part & rev'd in part on other grounds , 99 I ll. 2d 312 (1983); Sheetz v . Morgan , 98 I ll. App. 3d 794, 798 (1981); Bronstein v. Kalcheim &Kalcheim, Ltd. , 90 I ll. App. 3d 957, 959 (1980); Practical Offset, Inc. v . Davis , 83 I ll. App. 3d 566, 571-72 (1980); Schmidt v. Hinshaw, Culbertson, Moelmann, Hoban &Fuller , 75 I ll. App. 3d 516, 522 (1979); Brainerd v. Kates , 68 I ll. App. 3d 781, 786 (1979); House v . Maddox , 46 I ll. App. 3d 68 (1977); Morrison v. Burnett , 56 I ll. App. 129, 135 (1894). As one author ha s noted: “[T] he ' attorney judgme nt' de fense [i s] also commonly

ref err ed to as '

judgme ntal immunit y ' or the ' err or of judg ment' rule. Whateve r the label, at its core , the rule dic tates that attorne y s do not breac h their duty to clients, as a matter

of law, whe n they

make infor

med, g ood-fa ith tactical dec isions.” J . Mark Cooney , Benc hing the Monday- Morning Quarterback: The “Attorney Judgm ent” Defenseto Legal-Malpractice Claims, 52 Way

ne L . Rev. 1051, 1052 (2006). ¶ 32 Citi ng Steve ns v. W alker , defe ndant contends that “I llinois law has r ecognized for well
over a centur y that an attorne y

cannot be held liable for

an er ror in his thoug ht proce ss while actively eng ag ing in his client' s pursuits.” The c ourt in Steve ns v. W alker stated: “B ut it mus t not be understood that an a ttorney is liable for e very

mistake
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that may occur in prac tice, and he ld responsible for the damag es that may

result. I f the attorney

acts with a pr oper de g ree of attention, with rea sonable c are , and to the best of his skill and knowledg e, he w ill not be held responsible. Some allowanc e must alway s be made for the imper fec tion of human judg ment.” Steve ns v. W

alker , 55 I ll. at 153. Howeve r, despite this implicit adoption of the doctrine of judg mental immunity over a centur y ag o, subsequent I llinois case s have not discussed the conce pt in gr eat de tail. As one cour t observe d, the problem with the “ err or of judgment” conc ept has be en pointed out in a leg al malprac tice tre atise. See Hunt v. Dre sie , 740 P.2d 1046, 1055 (Kan. 1987) ( citing Rona ld E. Mallen & Victor B . L evit, L eg al Malpra ctice §§ 211, 215 ( 2d ed. 1981)) . In that treatise, the authors noted: “N otwithstanding c enturies of applying the err or of judg ment rule in attorne y malprac tice ac tions, the courts have not analy zed or define d the judg mental proc ess being protec ted.” Ma llen, supra § 211, at 299; see a lso Cooney , supra at 1053 (“ Courts often desc ribe the rule in rather rote fashion, without fleshingout its nuances. A c loser examination reve als that the rule ha s some decide dly blurry edg es.”)
. ¶ 33 The Hunt court a lso noted the authors' proposed a naly sis of err ors of judgment: “ ' Neve rtheless, a

client is entitled to the benef it of an informe d judgme nt. When the issue is one that is settled and c an be ide ntified throug h ordinary rese arc h and investigation techniques, an attorney should not be able to avoid liability by claimingthe er

ror wa s one of judg ment. On the other hand, when the proposition is one on which reasonable lawyers c ould disagree or which involves a c hoice of
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strategy , an er

ror of informed judg ment should not be g aug ed by hindsight or second- guessed by

an expert witness.' ” (Empha sis added and omitted.) Hunt v. Dresie , 740 P.2d 1046, 1055 (Kan. 1987) ( quoting Ma llen, supra § 215, at 311). ¶ 34 The Supreme Court of I daho, notingat that time that at least 13 jurisdictions had adopte d the judg mental immunity rule, a cknowledg ed that the “ rule” as applied ha d been a rticulated in differ ent way s. See Sun Valley Potatoes, Inc . v. Rosholt, Robertson &Tucker , 981 P.2d 236, 239 n.1 (I daho 1999) ( and ca ses cited ther ein). The Sun Valley court a lso stated: “Rather than beinga rule which g rants some ty pe of ' immunit y ' to attorney s, it appea rs to be nothingmore than a rec og nition that if an attorney ' s actions could under no c ircumstance s be held to be ne g lige nt, then a cour t may rule a s a matter of law that there is no liability . As in any other ne g lige nce c ase, how ever , if there is a g enuine issue of

materia l fac t about the re asonable ness and c are exercised by the attorne y , then the issue must be submitted to the jury for de termination.” Id . at 240. ¶ 35 Our re sear ch has disclose d that courts in other jurisdictions have g ener ally discussed judgme ntal immunit y

as applying to a

n attorney' s decision in two situations: (1) where the law is unsettled; or (2) the decision is tactica l. As one cour t expl ained: The “princ iple [of judgmental immunit y ] permits a court to deter mine, as a matter of law , that an attorne y was not neg lige nt based on a

n err or in profe ssional judgment be cause the law wa s unsettled on the issue or the 3
Severa l reporte d decisions addr essingthe doctrine of judg mental immunity have done so 3 in the context of discussing an a ttorney ' s decision in an unsettled a rea of law. See , e.g. , Evans v. Hamby , 2011 Ark. 69, at 4, 378 S.W .3d 723 (“An attorney is not li able to a c lient when, ac ting in 151-12-3122

attorney made a tactica l decision from among e qually viable alter

natives.” ( Emphasis added.) Merc hant v. Kelly, Haglund, Garnsey &Kahn , 874 F. Supp. 300, 304 (D. Colo. 1995) (c iting Halvorsen v . Ferguson , 735 P.2d 675, 681 (Wash. Ct . App. 1986)). ¶ 36 Howeve r, one c ourt has construe d the rule a s follows:
g ood faith, that attorne y

makes mer e er

rors of judg ment. [C itation.] Moreove r, an a ttorney is not, as a matter

of law, liable for a

mistaken opinion on a point of law that has not be en settled by the hig hest court of

jurisdiction and on which re asonable attorney s may differ .”); Roberts v. Chimileski , 2003 VT 10, ¶ 19, 175 Vt. 480, 820 A.2d 995 ( “ ' rule that a n attorney is not li able f

or an er ror of judgme nt on an unsettled proposition of law is universa lly rec og nized.' ” (quoting3 Ronald E. Mallen & J eff

rey M. Smi th, L eg al Malpra ctice § 18.1, at 2 (5th ed. 2000)) ); Blair v. Ing , 21 P.3d 452, 464 (Haw. 2001) (“An attorney cannot be held liable for

ever y mistake made in his or her pr actice , espec ially for a n err or as to a que stion of law on which r easona ble doubt may be ente rtained by

well-infor

med lawyers.” ); Sun Valley , 981 P.2d at 239-40 (“c ourts have *** held as a matter of la

w that an attorney

is not li able f

or fa iling to cor

rec tly anticipate the ultimate resolution of an unse ttled leg al principa l”); Manley v. Brown , 1999 OK 79, ¶ 9, 989 P.2d 448 (“[l] awyer who acts in g ood faith and in a n honest belief that his advice a nd acts a re w ell founded and in the best intere st of his client is not answera ble for a mere err or of judg ment when de aling with a point of law whic h has not bee n settled by a pre cede nt-setting pr onounceme nt and about which re asonable doubt may be ente rtained by

well-infor

med lawyers. When the state of the law is doubtful or debata

ble, a lawy er w ill not be held responsible for failingto anticipate how the uncer tainty will ulti mately

be re solved.” (E mphasis omitt ed.)) ; W ood v. Mc Grath, North, Mulli n &Kratz, P.C

. , 589 N.W.2d 103, 106 (Neb. 1999) ( “an attorney ' s judgme nt or rec ommendation on an unsettled point of law is immune fr om suit, and the attorney has no duty

to acc urate ly predic t the future c ourse of unsettled law” ); Crosby v. Jone s , 705 So. 2d 1356, 1358 (Fla. 1998) (“The rule of judg mental immunity is premised on the unde rstandingthat an attorne y , who ac ts in g ood faith and makes a dilig ent inquiry into an are a of la

w, should not be held liable for providingadvice or takingaction in an unse ttled are a of la w.”) ; Lucas v. Hamm , 364 P.2d 685, 689 (Cal. 1961) (a

n attorney “is not liable for be ing in e rror as to a que stion of law on which rea sonable doubt may

be ente rtained by

well-infor

med lawyers.” ); Biomet Inc . v. Finnegan Hende rson LL P , 967 A.2d 662, 668 (D.C. 2009) ( the unsettled law e x ception to attorne y malprac tice liability

“is based on the understandingthat an attorne y is not ex pecte d, much less require d, to acc urate ly

predic t developments in the law” ); see a lso Davis v. D amrell , 174 Cal. Rptr. 257, 259 (Cal. Ct. App. 1981) (notingthat test for whe ther judg mental immunity applies “invokes a

two-prong ed inquiry : (1) whe ther the state of the law was unsettled at the time the profe ssional advice w as re ndere d; and (2) whether that advice was ba sed upon the e x erc ise of an informed judg ment”).
161-12-3122 “Essentially , the judg mental immunity doctrine pr ovides that an informed professional judgment made with re asonable car e and skill ca nnot be the basis of a leg al malpra ctice c laim. Central to the doctrine [of attorney judgme ntal immunit y] i s the understa nding that an attorne y ' s judgme ntal immunit y and an attorney' s obligation to ex erc ise rea sonable c are coexist such that an attorney' s non-liability

for strateg ic dec isions 'is conditioned upon the attorney actingin g ood faith and upon a

n informed judg ment afte r under takingrea sonable re sear ch of the re levant leg al principa ls and fac ts of the g iven ca se.' [C itation.] To hold that an attorne y

may not be held liable f

or the c hoice of

trial tactics a

nd the conduc t of
a ca se base d on profe ssional judgment is not to say , that an attorne y may not be held liable for

any of his actions in relation to a trial. He is still bound t o exercise
a re asonable deg ree of skill and car e in all of his profe ssional undertaking s.' [C itation.] ” (Empha sis added.) Biomet Inc . v. Finnegan H enderson LLP , 967 A.2d 662, 666 (D.C. 2009) ( quoting Sun Valley , 981 P.2d at 240). See also 7A C.J.S
. Attorney & Client § 332, at 371 (2004) ( “The ' judgme ntal immunit y

rule,' rathe r than grantingsome ty pe of ' immunit y ' to attorney s, is nothing more tha n a re cognition that if an attorney ' s actions could under no circ umstances be held to be neg lige nt, then a cour t may rule a s a matter of

law that ther e is no liability , but if there is a g enuine issue of

materia l fac t about the re asonable ness and c are exercised by the attorne y , then the issue must be submitted to the jury for de termination.”) ¶ 37 Citi ng Biomet , plaintiff ar gues that “in orde r to avoid liability based on a

litigation
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judgme nt, as claimed he re by [defendant] and as f

ound by the trial cour

t, the attorney

must actually haveexe rcised reasone d judgment in his decision making and *** not eve ry act of an attorney constitutes a profe ssional judgment.” (Emphasis in orig inal.) Plaintiff argues that the alleg ed neg lige nt acts at issue he re “ are not like those decisions which lawy ers must sometimes make whic h courts cha

rac terize as ' err ors of judg ment' and which f orm the basis of '

judgme ntal immunit y ' from malpra ctice liability .” Instead, plaintiff a rgues, those er

rors of judg ment “ar e limit ed to situations where the lawyer ha s determined that there a re a dvantag es and disadvantag es to alternative course s of ac tion, has actua lly weighed those a dvantag es and disadvantag es, and the n made a rea soned, prof

essional judg ment as to which c ourse is best for the client.” ¶ 38 Def

endant a sserts, howeve r, that “[t] he alleg ed fa ilure to raise cer tain defe nses or c laims is precise ly

the sort of a lleg ation to which the doctr ine of judg mental immunity applies.” Def endant a lso arg

ues that cla ims alleg ing me re e rror s of judg ment are properly dismiss ed pursuant to sec tion 2-615 and cites the c ase of Goldstein v. Lustig , 154 I ll. App. 3d 595 (1987), as controlling . The c ase involved a dentist, L ance Goldstein, who bec ame involved in a dispute with his employ er r eg ardingalleg ations that he had e ng ag ed in fra udulent billing pra ctices. Id . at 597. Goldstein retaine d an attorne y , Steven L ustig. Goldstein told Lustig that his employ er “ had valid g rounds to terminate him for misconduct and a sked his leg al advice as to the best cour se of conduct.” Id . Goldstein showed L ustig his employ

ment contra ct, which c ontained diffe rent provisions for bene fits dependingupon whether Goldstein were to quit or was terminate d for
cause . Id . L

ustig told Goldstein it would not make any differ ence , and also infor med him that if
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he wa ited and allowe d himself to be terminate d, he could sue his employ er. Id . Goldstein took this latter advice and sued. Id . Lustig then a dvised settlement of the la wsuit. Id . Goldstein and his employ er subse quently signe d a conse nt decr ee, a mutual relea se, and a

settlement agree ment. Id . When Goldstein then sued Lustig for leg al malpra ctice, L

ustig filed a

motion to di smiss under se ction 2-615 and, in the a lternative, se ction 2-619. Id . The motion was g rante d, appar ently

on both gr ounds. Goldstein appea led both bases a nd the appe llate cour

t addre ssed
eac h. ¶ 39 The c ourt first ana ly zed Goldstein's a

rgument that the trial cour t had er red in ruling

that his complaint ag ainst Lustig fa iled to state a c ause of action for

leg al malpra ctice. Id . at 598-601. The c ourt quickly

conclude d that Goldstein could “plea d no set of fa cts that [would] establish the element of

cause require d for a

leg al malpra ctice a ction, and ther efor e the c omplaint was proper ly dismiss ed.” Id . at 599. As the c ourt noted, if the e mploy er ha d cause to discharg e Goldstein, “he w ould not be able to enf orce the contra ct and r ecove r bene fits, reg ardle ss of whether he re signe d or wa ited to be terminate d.” Id . Noting that a par ty who mater ially

brea ches a contr act c annot then take advanta g e of the contra ct, the cour t additionally

opined as follows: “plaintiff' s use of the c orporate books and re cords to fur ther a n insurance fra

ud scheme constitutes a mater ial brea ch of the employ ment ag ree ment.” Id . The c ourt also explained that, if Goldstein had bee n discharg ed without cause , he would have had an a ction ag ainst the employ er for wr ong ful dischar g e and L ustig' s “advic e to wait for termination would not have pr eclude d him from rec overinghis resig nation benef its.” Id . at 600. ¶ 40 Goldstein is disti nguishable both proce durally and fa ctually . As plaintiff her e cor rec tly
191-12-3122

notes, not only

was Goldstein decide d on a joint section 2-615 and se ction 2-619 motion but “more importantly , unlike the instant case , was dismissed on the basis of a detailed f

actua l rec ord of matters outside the c omplaint.” As plaintiff additionally notes, Goldstein is disti nguishable beca use the c ourt eff

ectively validated the la

wy er' s judgme nt when it deter mined that either
course of ac tion by

Goldstein would have ma de no diffe renc e: “he would not be able to e nforc e the contra ct and r ecove r bene fits, reg ardle ss of whethe r he r esig ned or w aited to be ter minated.” Id . at 599. ¶ 41 Thus, reg arding

defe ndant' s contention that Goldstein constitutes established pre cede nt that “a tr ial court should deter mine as a matter of law

whether the alleg ations of a c omplaint amount to only

alleg ations of er

ror in judg ment for whic h no cause for leg al malpra ctice c an be stated, eve n without fact a nd expert discovery ,” cle arly Goldstein was limited to its facts. In view of the court' s determination that Goldstein fa iled to state a c ause of action for

leg al malprac tice bec ause he failed to a lleg e proximate cause , the cour t's f urther disc ussion of whether Lustig' s conduct wa s an er ror of judgme nt rather

than neg lige nce is dicta . As plaintiff obser ves, “the principal

basis for the de cision in Goldstein was plaintiff' s failure to establish prox imate
cause , not the claim that the lawyer c ommitt ed an ' err or of judg ment,' and the Court' s observations about lawy er judg ment cannot be divorce d from the pr ox imate ca use issue.” (Emphasis adde d.) We ag ree and note that the Goldstein court made the additional deter mination that Lustig: “had to e x erc ise his judgment ba sed on an e valuation of what plaintiff had told him about the employ

ment dispute, the terms of the c ontrac t, the applicable law

201-12-3122

and any alternative reme dies plaintiff mig ht have. He also had to take into consideration that resig nation would bind plaintiff to a re strictive cove nant which would not be the ca se if he w as wrong fully terminated.” Id . at 600-01. ¶ 42 The c ourt also was c lear ly disturbed by

the fa ct that Goldstein had e ng ag ed in fra ud and felt compe lled to point thi s out in it s section 2-619 a naly sis: “The courts of I llinois have a long- established rule that they will not aid a fra udfea sor who invokes the c ourt' s jurisdiction to relieve him of the conseque nces of

his fraud. [Citation.] Since the basis of pla intiff' s action in the prese nt case is an attempt to reduc e the e conomic conse quence s of his fra udulent conduct by

rec overing

from his attorney , we hold that the tria l court did not err in dismiss ing his c omplaint with prejudice.” Id . at 603. Goldstein is inapposite for all of the se re asons and is not the seminal ca se that def endant por

tray s it to be. ¶ 43 In support of his argument that defe ndant' s failure to raise mer itorious defense s was neg lige nt and not a mer e “e rror of judg ment,” plaintiff r elies on Gelsomino v. G orov , 149 I ll. App. 3d 809 (1986). I

n Gelsomino , the plaintiffs had pr eviously tried to collec t on an insuranc e policy but lost after a

jury trial wher e the insura

nce c ompany

contende d that the insureds ha d committed arson. The insureds then sued the ir forme r attorne y s for malpra ctice, a lleg ing the y brea ched the ir duty

by failingto call six witnesses who c ould have testified f avora bly for the insureds. Specific ally , the plaintiffs conte nded that the de fenda nts failed “to inter

view, pre pare and pre sent the testimony of ce rtain witnesses” that would have e x plained discre pancie s in the

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sales tax figur es and c ontroverte d the circ umstantial evidence of ar son. Id . at 811. The defe ndants filed a motion for summar y judgme nt arg

uing tha t the err ors and omissions alleg ed in the complaint wer e er

rors of judg ment rathe r than e rror s of neg lige nce. Id . In response , the plaintiffs submitted the affida vits of two leg al malpra ctice e x perts who opined that the defe ndants' conduct in fa iling to investig ate a nd prese nt the witnesses fe ll below the appr opriate standard of

conduct. Gelsomino , 149 I ll. App. 3d at 814. Nonethele ss, the trial court grante d summary judgme nt in the attorney s' favor , holding that the f ailures “ wer e matter s of profe ssional judgme nt rather

than er rors of ne g lige nce.” Gelsomino , 149 I ll. App. 3d at 813. This court
reve rsed. ¶ 44 Noting that the defe ndants had ne ither off ere d evidenc e to discre dit plaintiff's e x perts nor provided a

ny rea son why

the cour t should not acce pt the experts' opinions on this question, the court de termined that the a ffidavits we re suf ficient to demonstra

te the existence of a

question of fac t as to brea ch of duty
. Gelsomino , 149 I ll. App. 3d at 814. As the cour t expl ained: “An attorney ' s judgme nt in the prepa ration and ha

ndling of a ca se is not *** alway s and automatica lly protec ted under

the rubric s of ' matters of pr ofessional judg ment' or ' tactica l decisions.' ” Id
. “[M] ere ly char acte rizing an a ct or omission as a matter of judg ment does not end the inquiry .” Id. The issue re mains as to whether the attorne y

has exercise d a re asonable deg ree of ca re or skill i n repr esentinghis client. Id . This issue is a question of fac t. Id . Noting that it was expressing no opinion as to whe ther the de fenda nt brea ched a

duty owed to the plaintiffs, the court c oncluded that “ summary judgme nt was inappropr iate on this issue beca use it [could not] be said a s a matter of

law that the movant wa s entitled to judgment.” Gelsomino , 149 I ll. App. 3d
221-12-3122

at 814. ¶ 45 Plaintiff now contends that the instant ca se is “virtually identical” to Gelosomino beca use the “the sole issue is whether the trial court c ould properly decide , as a ma

tter of law

and without a trial, whe ther the f

ailures a lleg ed ag ainst the lawyer de fenda nts constituted actionable neg lige nce or

' mere err ors of judg ment.' ” Plaintiff asser ts that his thi rd ame nded complaint is “substantiated” by

his leg al malpra ctice e x pert' s uncontradic ted af fidavit stating that there w as no “prof essional judg ment” to be e x erc ised by defe ndant in decidingwhether to assert the meritorious defe nses alleg ed in the complaint. Plaintiff ar gues, there fore , that a question of f act
was c reated as to whe ther de fenda nt's c onduct was ne g lige nt and could not be de cided a s a matter of law. ¶ 46 Def

endant attempts to di stinguish Gelsomino by noting that its holding r elated to “cir cumstance s at the summary judgme nt stage .” (Empha sis in original.) While it is true that the attorney defe ndants in Gelsomino soug ht summary judgme nt, they

appar ently

had not conteste d the leg al suffic iency

of the c omplaint's a lleg ations that they wer e “ne g lige nt in the investigation, prepa ration and pr esentation of the plaintiff' s lawsuit.” Id . at 810. Moreove r, this court has noted that “a motion for summar y judgme nt almost necessa rily assumes the suff

iciency of the alleg ations of the complaint.” Hallmark InsuranceCo. v. Chicago Transit Authority , 179 I ll. App. 3d 260, 267 (1989); se e also Janes v . First Federal Savings &Loan Ass' n of Berwyn , 57 I ll. 2d 398, 406 (1974) (“ When, and only when, a leg ally sufficie nt cause of ac tion had been stated should the cour

t have e ntertaine d the motions for summary judgme nt and consider ed the aff idavits filed in support thereof .”). Thus, de fenda

nt has pointed to a distinction without a
231-12-3122

differ ence . Nonethele ss, we do not think the analy sis in Gelsomino resolves the issue befor e this court a s to whether the trial court in the instant case proper ly dismiss ed plaintiff' s third amended complaint on the basis that def endant' s actions constituted nonac tionable er rors of judgment, and not professional ne g lige nce, a s a matter of law. ¶ 47 The pa

rties disag ree as to whethe r plaintiff' s expert's a ffidavit may be conside red. O ur supreme c ourt addre ssed the use of exhibi ts attache d to a complaint in Bajwa v. Metropolitan Life Insurance Co. , 208 I ll. 2d 414 (2004). Ther e, as he re, the re w as no issue re g arding any inconsistencies be tween the exhibi t and the complaint. The Bajwa court noted g ener ally that a party may attach a written docume nt to the complaint which will be treated as pa rt of the pleadingif the plea ding spe cifica lly incorpora

tes the exhibitby

ref ere nce. Id . at 432. In ruling
on a sec tion 2-615 motion, t he cour t may consider doc uments and exhibit s that have be en incorpora ted into the pleading s. Taylor v. Frey , 406 I ll. App. 3d 1112, 1115 (2011). All fa cts appar ent from the f

ace of the plea dings, inc luding the a ttached e x hibits, m ust be consider ed. Gree n v. Roge rs , 234 I ll. 2d 478, 491 (2009). ¶ 48 Def

endant he re nowargues that plaintiff' s “use of an af fidavit to bolster his Third Amended Complaint has no bea ringon this Court's deter

mination of the sufficie ncy of the pleading .” De fenda

nt relies onBrock v . Anderson Road Ass'n , 287 I ll. App. 3d 16 (1997). In Brock, the experts' aff

idavits attache d to the complaint stated that the de fenda nt emerg ency medical tec hnicians' conduct “ ref lected ' utter indiffe renc e and disre g ard f or the saf ety of Mr. Br ock.' ” Id . at 25. The c ourt, noting that the issue was whe ther plaintiff ha d sufficiently pleaded that defe ndant' s conduct wa s willful and wanton, held that the e x perts' aff idavits were mere
241-12-3122

“conc lusions.” Id . Plaintiff now contends that Brock is disti nguishable bec ause his expert' s aff idavit, in addition to l eg al conc lusions, sets forth the underly ing f actua l basis for the opinion, i.e. , they are based on the alleg ations of plaintiff' s complaint. Although pla intiff contends that we may there fore consider the aff idavit, we ac tually

believe it re nders the a ffidavit mer ely duplicative of a

ny well-plea ded alleg ations in the third amended c omplaint. The issue here , as in Brock, is whether pla intiff has sufficiently pleaded his cause of

action re g ardingdefe ndant' s conduct. ¶ 49 In The Retreat v. B ell , 296 I ll. App. 3d 450 (1998), the c ourt discussed the pr oper consideration of an af

fidavit submitted by

the plaintiff in opposition to a section 2-615 motion to dismiss . As the cour

t observed: “ A motion for summary judgme nt is a better wa

y to determine whether there are fac ts to support a complaint than is a motion to dis miss.” Id . at 453. Howe ver, the cour t remar ked: “It appea

rs that the sole re ason [defenda nt] wanted this ca se dec ided on a motion to di smiss, and not on a motion for summary judgme nt, was to take a dvantag e of the rule that aff idavits may

not be consider ed in dec iding se ction 2-615 motions.” Id . at 453-54. ¶ 50 As the Retreat v. B ell court fur ther stated: “The re a re no c ases *** that ig nore a ffidavits and discove ry materia ls submitt ed by

the plaintif

f , in oppositi on to the section 2-615 motion, and in response to defe ndant' s arguments that plaintiff is pleadingonly a conc lusion and that plaintiff ca

nnot plead spec ific fa cts in support of that conc lusion. The circ uit court should dismiss a cause of action on the plea dings only if it is clearly appar ent that no set of f

acts c an be pr oven which w ill entitl e a pla intiff to

251-12-3122

rec overy . [C itation.] How ca n it be said that no set of fa cts ca n be prove d that will entitle a plaintiff to rec overy when the r ecor d contains af fidavits setting out those fac ts? *** Why

should we ig nore the aff

idavits and limitour view solely to the supposedly

conclusory

pleading , when the a ffidavits support, instead of contra dict, that pleading ? Pleadingmotions shoul d not be dec ided on technica lities, but wit h a view to doingsubstantial justi ce be tween the parties. [C itation.] ” (Empha sis in original a nd internal quotation marks omitted.) Id . at 454. ¶ 51 In the instant case , plaintiff' s leg al expert opined that def endant' s failure s to assert plaintiff' s available defe nses in the under lying c ase c onstitut ed prof essional neg lige nce, a

nd that it was more pr obably

true than not that ha d these a rguments been a sserted, pla intiff would have preva iled and would not have been or dere d to sell his shares to Curia pursua nt to the 1989 ag ree ment. Def

endant c ontends that the af fidavit containe d mere leg al conc lusions that cannot be conside red; plaintiff c ontends the af fidavit sets forth the unde rlying f actua l matter on which the opinion is based. We need not r esolve this issue and nee d not consider the a ffidavit at this stag e of the pleading s. Although pla intiff attache d the af fidavit in support of his argument that defe ndant' s actions wer e not mere err ors of judg ment, we be lieve that plaintiff' s third amended complaint, standingalone, c ontained suff icient alleg ations to state a ca use of a ction for attorney malprac tice. ¶ 52 Plaintiff's third amended c omplaint contained thre e counts a lleg ing in de tail his claims of neg lige nce on the part of de fenda nt for fa iling to: asser

t meritorious and complete defe nses to
261-12-3122

Curia' s attempted exercise of the 1989 options (count I ); argue that the wr itings we re a mbiguous (count I I ); and e nforc e the July 2004 ag ree ment (count I I I ). Plaintiff is not merely alleg ing that defe ndant was ne g lige nt beca use it lost the argument in the district court. Also, plaintiff' s alleg ations g o beyond mere err ors of judg ment by defe ndant. Plaintiff has alleg ed suff icient fac ts, which we must take a s true at this point, tending to show that de fenda nt's c onduct in the underlying la

wsuit fell below the standa rd of c are and that this neg lige nce w as the proximate
cause of plaintiff' s damag es. Ther efor e, plaintiff' s third amended c omplaint should nothave be en dismiss ed under

section 2-615. ¶ 53 We rec og nize that itmay be true that defe ndant consider ed the other leg al theorie s that plaintiff now conte nds it should have advanc ed but nonethele ss made a r easone d judgme nt and tactica l decision to proce ed as it did. That is, defe ndant may have de cided that the be st course of action wa s to argue that the 1989 a g ree ment' s options were a brog ated by

the 1993 modification ag ree ment instead of a dvancingthe other le g al theorie s. As defe ndant notes, plaintiff ha s
conce ded that this was a pla usible leg al theory , and the Seve nth Circuit ex plicitly found that this argument was a

rea sonable one (and a s rea sonable a s the one a dvance d by Curia). Alter

natively , defe ndant may

have not pur sued these othe r ar guments that plaintiff now alleg es def endant neg lige ntly

failed to a ssert simply

beca use def endant wa s unawa

re of their existence in the first instance. D efe ndant' s argument that its conduct involved, at most, a mere err or of judgment presuppose s that an ac tual “dec ision” was made on its part, which is not ref lected in the r ecor d at this stage
. ¶ 54 We find instructive the ca se of Howard v. Druck emiller , 238 I ll. App. 3d 937 (1992).
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There , the plaintiff sued the attorney who had r epre sented him in a re al estate purcha se. Simil ar to the instant case, the defe ndant had a rgued that the plaintiff ha d alleg ed no more than her err or of opinion or judg ment. Id . at 939. The tria l court in Howard g rante d the def

endant' s motion t o dismiss under se ction 2-615 of the Code of Civil P roce dure f or fa ilure to state a c ause of action for leg al malpra ctice. Id . Howeve r, this court re verse d. We concluded that the pleading “ade quately

alleg ed an a

ttorney malprac tice cla im that should nothave be en dismissed for leg al insufficienc y .” Id . at 943. We noted that the plaintiff ha d clea rly alleg ed bre ach of

the attorne y ' s duty by stating tha

t he had told the def

endant that he wished to hire a private home inspector but the def endant infor

med him that such an inspec tion was not nece ssary beca use the Ve tera

ns Administration inspection would suffice. Id . at 942. We also conc luded that the plaintiff ha d adequately

alleg ed injury

or loss proxi mately

resultingfrom the de fenda nt's a dvice, r efe rringto the cost of r epair ing the latent def ects he first discover ed af ter movinginto the house. Id
. ¶ 55 As we e x plained: “[t] he plaintiff' s first amende d complaint included we ll-pleade d fac ts that, when c onstrued in his favor , could support a c onclusion that the defe ndant' s advice not to hire a private inspec tor was a

brea ch of the standard of car e owe d him. Ex pert opinion on the standard of

car e for a re al estate lawyer in the de fenda nt's position could

establish that the advice was such a

brea ch.” ( Emphasis added) Id . at 943. Ther efor e, “[t]he plaintiff was entitled to prese nt evidence both on the standard of car e due him and on whether the def endant' s advice violated that standar d.” Id . Simi larly , in the instant case, c onstruing the well-plea ded fa cts in the third amende d complaint in plaintiff' s favor could support a c onclusion that defe ndant bre ache d its duty to plaintiff.
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¶ 56 In sum, in the instant case, we have no w ay of knowing , at this stage of the proc eeding s, why defe ndant proc eede d as it did – with the arg ument that it lostin the district court. De spite defe ndant' s numerous re fer ence s to its “decision” and its “r easone d judgme nt” to fore g o cer tain leg al theorie s and ar guments, we a g ree with plaintiff that the re cord is devoid of any evidenc e that defe ndant made anystrateg ic dec ision or informed judg ment not to assert the de fense s that plaintiff now conte nds were meritorious and should have been a sserted. We a lso cannot deter mine if defe ndant ac tually “dec ided” not to asser

t plaintiff' s other, alleg edly meritorious, defe nses, as opposed to de fenda nt simpl y beingunawa

re of , or over looking, the e x istence of any other leg al ar gument. We acc ept as true all well-plea ded fa cts in plaintiff' s third amended complaint and the r easona ble infer ence s that can be drawn from those fa cts. In doing so, w e cannot sa y that it clear ly

appea rs that no set of f

acts c ould be prove d which would entitle plaintiff to rec over. Thus, a lthough the tr ial court he re e rre d in dismi ssing plaintiff' s third amended complaint, cer

tainly dismiss al could be a

ppropriate as a matter of law wher e “it is clea

rly appar ent that no set of f

acts c an be pr oved that would entitle the plaintiff to r elief.” (Interna l quotation marks omitted.) Estate of Powell v. John C. W unsch, P.C. , 2013 I LApp (1st) 121854, ¶ 15. Such wa s the ca se in Goldstein v. Lustig , 154 I ll. App. 3d 595 (1987), discussed e arlier
. Her e we cannot sa

y as a matter of law

that defe ndant' s conduct c onstitut ed a me re e rror of judgme nt for which it is immune from liability
. ¶ 57 Neve rtheless, de fenda nt notes that this court may “af firm on any

basis supported by

the
rec ord, re g ardle ss of whethe r the trial c ourt based its dec ision on the proper ground.” ( Interna l quotation marks omitted.) Sherman v . Townshi p High School District 214 , 404 I ll. App. 3d 1101,
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1109 (2010). De fenda

nt asserts that the r ecor d establishes four alternative bases f

or dismissal of the third amende d complaint with prejudice that support aff irmance of the trial c ourt' s dismis sal order
. ¶ 58 Def

endant f irst argues that plaintiff is judicially estopped fr om arguing the exis tence of the 2004 ora l ag ree ment as a r esult of an a ffidavit he e x ecute d in the underly ing a ction. In his aff idavit in the underlying a ction, plaintiff stated:

“In J uly 2004, afte r a se rious illness, Imet with Curia and off ere d to sell my share s in the Corporations to Curia and re tire fr om the business. In September 2004, I

prese nted an of

fer to Curia, but Curia did not acce pt. Howeve r, Curia a

nd Icontinued neg otiating Curia' s buy -out of my share s. On Dec ember

4, 2004, Iprese nted another offe r to Curia. Curia did not
acc ept the off

er but c ontinued to discuss the sale and pur chase with me. Curia eve n procur ed bank f inancingallowinghim to purchase my share s. Howeve r, Curia ne ver a ccepted any of my offe rs. Be cause Curia would not move forw ard in the ne g otiations to purchase my interests in the Corporation, Iconsulted an outside br oker f or the purpose of consideringthe sale of

the Corporations to an outside buy er.” There fore , defe ndant contends that plaintiff cannot a rgue that def

endant wa s neg lige nt in failing to raise the e x istence of

the purporte d 2004 oral a g ree ment. ¶ 59 We have noted:

“The doctrine of

judicial estoppel promote[s] the truth and *** prote ct[s]

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the integ rity

of the c ourt sy stem by

preve nting litiga

nts from deliberately

shifting positions t o suit the ex ige ncies of the moment. [ Citation.] J udicial estoppel is flexibl e but five e lements are g ener ally nece ssary : (1) the two positions must be taken by the same pa

rty ; (2) the positions must be taken in judicial proce eding s; (3) the positions must be g iven under oath; (4) the pa

rty must have succ essfully maintained the f

irst positi on and re ceive d some bene fit; and (5) the two positions must be totally

inconsistent. [ Citation.] J udicial estoppel a pplies to statements of fac t and not to leg al opinions or conclusions. [Ci tation.] ” (I nterna l quotation marks omitted.) United Automobile Insurance Co. v. Buck

ley , 2011 I LApp (1st) 103666, ¶ 35. “B efor e a sta

tement ca n be held to be a

binding judicial a dmission, i t must be give n a mea ning consistent with the context in which it was found [citation] , and it must be considere d in relation to the other testimony

and evide nce pr esente d. [C itation.] ” Smith v. Pavlov ich , 394 I ll. App. 3d 458, 468-69 (2009) . “Admissions are not bindingif the ame nded plea ding a sserts that the alleg ations in the orig inal pleadingwer e the pr oduct of mistake or inadver tence . [C itation.] ” Heider v . Leewards Creative Crafts, Inc. , 245 I ll. App. 3d 258, 271 (1993). ¶ 60 Plaintiff argues that def endant dr afte d the af

fidavit for him and the leg al conc lusion in t he aff idavit that Curia had not “a cce pted” the of fer was de fenda

nt's c onclusion and not plaintiff' s. He a lso contends that def endant a dvised him that “under I llinois law, Curia' s mere or al ag ree ment, althoug h expli cit, did not constitut e a le g ally eff ective ' acc eptanc e.' ” Thus, he contends that his prior a ffidavit is not leg ally binding.
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¶ 61 A somewhat simi lar a rgument was re

jected in Bev erly Bank

v. Coleman Air Transport 134 I ll. App. 3d 699, 704 (1985), in which a n action wa s broug ht by

a bank a g ainst defe ndant, the maker and guara

ntor of promissory

notes. Def

endant sought to disavow an ea rlier a dmission of liability

in his original ve rified a

nswer, c laiming “ his attorney did not consult with hi m or allow him to review the answe r and that the answe r wa s the product of mistake or inadve rtenc e.” Id . at 704. The c ourt dec ided that “[t] hese unsuppor ted and lar g ely

conclusionar

y statements [were] insufficient to show mistake or ina dverte nce.” Id . The c ourt noted that “[t] here [was] nothing in the r ecor d [i ndicatingthe] attorney did not have knowledg e of the statements in the
answe r or that he did not have author ity to file a ve rified a

nswer in be half of his c lient.” Id . The instant case, how ever , is differe nt beca use plaintiff is suinghis attorney and alleg ing that the attorney draf ted these state ments for him. Moreove r, plaintiff ha s noted that defe ndant asser ted the opposite when it filed a n amende d complaint in his dist rict cour t action ag ainst Curia alleg ing, a s plaintiff now alleg es her e, that in 2004 , plaintiff and Curia enter ed into an agree ment for Curia to pur chase plaintiff' s share s for $4.2 million and that Curia later “ rene g ed” on that ag ree ment. Plaintiff also notes that defe ndant filed this amende d complaint on Fe bruar y 15, 2008 but it was too late to obtain relief for him. Thus, we do not be lieve the judicial e stoppel doctrine c an be invoke d by the attorne y

defe ndant under

the par ticular c ircumstance s of this case. ¶ 62 Def

endant ne x t argues that, eve n if we do not a pply judicial estoppel, any

claim base d on the purporte d 2004 ag ree ment should have be en dismissed beca use plaintiff “ failed to plea d fac ts establishing the elements of a n enfor cea

ble agree ment.” Specif

ically , defe ndant contends that plaintiff did not sufficiently plead the e x istence of

a Jul y 2004 oral a g ree ment beca use he f ailed
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to plead the c ontrac t's spe cific te rms and also fa iled to plead that the c onditions precede nt had been me t. ¶ 63 In support of its argument, defe ndant cites Claire Associates v. Pontikes , 151 I ll. App. 3d 116 (1986). As the Pontikes court e x plained:

“L eg al-malpra ctice c omplaints are by their nature lawsuits depende nt upon predic ate law suits. *** [ A] lega l malprac tice cla im is a 'c ase w ithin a case .' This is beca use of the da

mag es ele ment of the a ction; no malprac tice exists unl ess counsel' s neg lige nce ha s resulted in the loss of an unde rlying c ause of action, or the loss of a mer itorious defense if the attorne y was de fendingin the underly ing suit.” Id . at 122. As the cour

t further explained: “[I ]tis not enoug h mere ly to inform the def

endant of the nature of the claim; the plea ding must also provide the fa ctual pre mise underlying the claim.” Id . at 123. ¶ 64 We believe Pontikes is disti nguishable. Ther e, plaintiffs fa iled to plead the nature of the ir claim with fac tual specific ity and had not a lleg ed any

fac ts which would overc ome a c lear ly delineate d defic iency

in the underlying br eac h of contra ct ac tion ag ainst a lende r for its refusal to keep its loan c ommitm ent. Specific ally , the Pontikes court noted that the lender ' s financing commitment was g rante d only on the condition that the financ ial vitality of the borr owingentity , i.e. , the orig inal partne rship, rema in unchang ed, yet it had chang ed fr om havingtwo g ener al partne rs who could be held jointly and seve rally

liable in the eve nt of defic iency upon defa

ult, to
a succ essor pa

rtnership, whic h had only one g ener al par

tner. Id . at 124. As a r esult, the lender
was e ntitled to deny

the loan to the succ essor pa rtnership, a

nd the lender had

raised this in its
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motion to di smiss the contr act a ction. Id . There fore , it was irre levant that def endant attorney s failed to re spond to the motion. Id. ¶ 65 In the instant case , in his opening br ief, plaintiff a rgued that he a dequate ly

alleg ed the exis tence of an e nforc eable ag ree ment. “[C] ontrac t formation re quires only the exist ence of an offe r, an a cce ptance , and conside ration.” Hubble v. O 'Connor , 291 I ll. App. 3d 974, 979 (1997);
see a lso Talbert v. Home Sav ings of America, F.A. , 265 I ll. App. 3d 376, 380 (1994) (“ To alleg e the exist ence of a va lid contrac t, a plaintiff must plead fa cts indicatingthere was a n offe r, an
acc eptanc e, and c onsideration.”) . “ ' For an ora l contrac t to be valid and enf orce able, its terms must be definite and c onsistent.' [Citation.] ” Downs v. Rosenthal Collins Group, L .L.C. , 2011 I L App (1st) 090970, ¶ 49. We a g ree with plaintiff that he has a dequate ly alleg ed the e lements of the 2004 ora l contrac t. He alleg ed that the pa rties to the agree ment wer e Curia a nd himself, that he off ere d to sell Curia all of his remainingstock for a total purcha se price of $4.2 million, and Curia ora lly

ag ree d. Although w e express no opinion on the merits of the a rgument, there is nothing in the r ecor d at this point, as there wa s in Pontikes , that would neg ate the va lidity of the underlying c ontrac t. Moreover , as plaintiff ha s noted, defe ndant itself dra fted a second a mended complaint conce ding its belief that a valid contr act e x isted. ¶ 66 Def

endant ne x t argues that plaintiff ha s failed to state a cause of ac tion ag ainst it because it did not prox imately

cause plaintiff' s damag es. De fenda nt notes that plaintiff asser ts that defe ndant' s neg lige nce c aused him to lose the right to pursue a viable cause of ac tion, namely , the enfor cea bility of the a lleg ed 2004 contr act. How ever , citing Mitchell v. Sc hain, Fursel & Burney, Ltd. , 332 I ll. App. 3d 618, 621-22 (2002), de fenda nt argues that the statute of limit ations
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had not expired at the time he discha rg ed def endant a nd, there fore , plaintiff' s new c ounsel could have pur sued plaintiff' s claim for br eac h of the putative July 2004 oral a g ree ment. Def endant argues that plaintiff ha d sever al ave nues by which he c ould have a sserted his cla im: (1) bringa
new a ction for br eac h of contra ct; (2) amend his complaint after the Seventh Circuit' s ruling; or (3) a bandon the a

ppeal a nd move to amend his complaint in the district court. ¶ 67 Simi larly , with respec t to plaintiff's a lleg ations that defe ndant was ne g lige nt in failing to argue that the c ontrac t and subsequent wr itings we re a mbiguous, de fenda

nt asserts alleg ed fa ilure was not the proximate cause of plaintiff' s damag es whe re the succe ssor attorney could have raised the argument and, in any event, the Seve nth Circuit's de cision “re suscitated” that argument. Def

endant c ontends that plaintiff “did not seize that opportunity .” De fenda nt contends that plaintiff ha d the rig ht to “unwind the cour t-order ed sale ” and c ould have averte d any harm ha d plaintiff bee n willing to re fund the c onsideration he r ece ived for the sale. ¶ 68 Plaintiff responds, in part, that it was too late to enforc e the 2004 a g ree ment. Plaintiff notes that the district court ha d enter ed summary judgme nt on Febr

uary 6, 2006, two year s befor e his new counse l was re tained. Citing Figgie International, Inc. v . Miller , 966 F.2d 1178 ( 7th Cir. 1992), plaintiff a

rgues that, “[s]i nce the 2004 ag ree ment could have and should have been
asser ted at the outset of the district court litigation in 2005, the law is clear that [hi s] new counsel would not have be en per

mitted to file y et another

amende d complaint in 2008, two y ear s after [pl aintiff] lost s ummary

judgme nt.” ¶ 69 As the cour

t in Figgie stated: “L eave to amend may be denie d wher e ther e has be en undue dela

y , bad fa ith, prejudice to the oppone nt, dilatory motive on part of movant, or
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amendment would be futile.” Figgie International, Inc. , 966 F.2d at 1180-81. Def endant ha s not cited any authority that would have pe rmitted plaintiff to amend his complaint at such a late date
. Plaintiff also notes that the other c ases c ited by defe ndant ar e distinguishable beca use there was
no uncer tainty as to whethe r plaintiff' s succe ssor counsel would have bee n permitted to pursue the claim lost by

the initial counsel' s neg lige nce. B y contra st, plaintiff notes he “did not have an

' absolute rig ht,' or

any ' rig ht' to a

mend his complaint more than two year s after losing on summary judgme nt.” We ag ree with plaintiff that whether his new counse l would have be en permitted to amend the complaint in 2008 is a question of fac t that cannot be de cided on a section 2-615 motion to dismi ss. ¶ 70 The last basis for

aff irmance raised by

defe ndant is that plaintiff' s provinghis “ca se within a case ” is speculative. The pa rties agree that, only

afte r findingambiguity , would the court have conside red e x trinsic evidenc e. Plaintiff has e ssentially argued that, had defe ndant argued ambiguity : (1) the district cour t would have f

ound an ambiguity ; (2) plaintiff would ha ve then had the oppor

tunity to present e x trinsic evidenc e; and ( 3) plaintiff would have pre vailed. Def endant c ounters that “the bare bones of [plaintiff' s] arg ument is that [ defe ndant' s] persuasive prowe ss alone would have convince d J udg e Reinhar d that the contra ct was a mbiguous, re sulting in the eventua l admission of ex trinsic evidenc e.” D efe ndant also ar gues that plaintiff ha s failed to plead any

fac ts that the J udg e Reinhar d would have ruled diff ere ntly had def endant a rgued ambiguity in the trial court. De fenda nt argues that any

such cla im is “far too spec ulative to form the basis of a

malprac tice ac tion.” ¶ 71 This court has a cknowledg ed that “e very leg al malpra ctice c ase r equiringproof of the
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' case within the case ' deals in some degree of spec ulation as to what the damag es in the underlying c laim would have be en abse nt the attorney misconduct.” Glass v. Pitler , 276 I ll. App. 344, 354 (1995). In Glass v. Pitler , we c oncluded that “ the spec ulation require d [t here was]
overwhelming.” Id . We upheld summary judgme nt for the attorney who g ave a dvice r eg arding whether pension funds would have protec tion in bankruptcy . We decided that the clients could not prove attorney

malprac tice as a

matter of la

w bec ause the y

could not establish with any
rea sonable de g ree of ce rtainty how the underlying c ourt would have ruled ha d they filed a bankruptc y

petition under the unique f acts of that case . Notably , the state of the law, on which the attorne y

had provide d the alleg edly err oneous advic e, wa s completely unsettled at the time. Id . at 352-53. Thus, the c ourt would have been c alled upon to “pr edict how a bankruptc y

court judge would have vie wed the la w in light of e x isting conf licting a nd nonbinding c ase la

w.” Id . at 354. The instant ca se is differ ent. As plaintiff notes, I llinois law re g ardingthe exercise of options and the construc tion of contrac ts is not i n a state of flux or subject to conf

licting c ourt opinions. ¶ 72 In Georgou v . Fritzshall , No. 93 C 997, 1995 WL248002 (N.D. I ll. Apr. 26, 1995), decide d under I llinois law, the c ourt stated: “[A] m alpra ctice pla intiff is not required to de monstrate what awar d the original judge or jury

would have ma de if no malpra ctice ha d occur red. O nce a malprac tice plaintiff ha s demonstrated that his attorney fell below a

rea sonable standard of

profe ssional conduct, the f actf inder must deter

mine what a reasonable judge or jury

would have c oncluded a

nd compar e that conc lusion to t he ac tual
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resolution of the unde rlying a ction to determine da mag es.” ( Emphasis added.) Id
. at *5. This objective standa

rd has be en applied in other jurisdictions. For example, in Mattco Forge, Inc. v . Arthur Y

oung &Co. , 60 Cal. Rptr. 2d 780 (Cal. Ct. App. 1997), the court state d: “The trial-within-a- trial method does not ' rec reate what a particula r judg e or fa ct finder

would have done . Rather, the jur y ' s task is to determine what a
rea sonable judg e or f

act f inder would have done....' [C itation.] Even thoug h

' should' a nd ' would' are used interc hang eably by the cour ts, the standard r emains an objec tive one. The trier of fac ts determines what should have bee n, not what the re sult would have bee n, or could have bee n, or mig ht have be en, had the matter be en bef

ore a particula r judg e or jury .” (Empha sis omit ted.) Id . at 793. See also Hicke

y v. Sc ott , 796 F. Supp. 2d 1, 4 (D.D .C. 2011) (appr opriate standa rd for the fa ct finder to a

pply in determiningcausation in a leg al malpra ctice a ction is the objective, re asonable person standa

rd, mea ning that the fac t finder ne ed not attempt to discern what a particular judge would have de cided ba sed on the fa cts befor e him but only what a reasonable judge would have decide d); McKnight v. Gingras , 966 F. Supp. 801, 812 (E.D. Wis. 1997) (in leg al malpra ctice action pre mised on claim that attorney' s neg lige nce r esulted in reve rsal on appe al of a judgme nt for c lient, proper f

ocus is not what the appe llate cour t that actually

hear d case would have decide d but, rather , what a r easona ble, fully briefe d judge or pane l of judg es would have decide d if attorney

had proc eede d differ ently ); Colli ns v. Miller &

Miller, Ltd. , 943 P.2d 747, 756 (Ariz. Ct. App. 1996) (in establishingcausation in a leg al malpra ctice a ction, the plaintiff must
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convince the trier of

fac t that, but for attorne y ' s neg lige nce, a reasonable judge or jury would have de cided in his or her favor in underlying a ction). ¶ 73 Contrary

to defe ndant' s contention, plaintiff is not “re quired to plea d and prove what Judge Philip G. Reinhard would have done had a dif fer ent ar gument *** been ma de.” ( Emphasis added) . The test is objective a nd the question is what a r easona ble judg e would have done. See Restatement (Thir d) of L aw Gove rningL awyers § 53 c mt. b, at 390 (2000) (“ The judg es or juror s who hea rd or would ha

ve hea rd the orig inal trial or appe al may not be ca lled as witnesses to testify as to how they

would have r

uled. That would c onstitut e an ina ppropriate burden on the judiciary and jurors a

nd an unwise pe rsonalization of the issue of how a reasonable judge or jury would have ruled .” (Empha sis added.)) Thus for the r easons state d, plaintiff' s provinghis casewithin-a-c ase is not spec ulative. ¶ 74 CONCLUSI ON ¶ 75 In view of the fore g oing, w e conc lude that the trial c ourt err ed in dismissi ngplaintiff' s third amende d complaint pursuant to sec tion 2-615. We cannot say that, as a matter of law , plaintiff ca

n prove no se t of fac ts from which a jury could find that def

endant' s neg lige nce in failingto raise the a dditional available a rguments, as alleg ed in the third ame nded complaint, wa s the proxim ate c ause of

plaintiff' s damag es. Plaintiff' s complaint stated a c ause of action for

leg al malprac tice. We there fore reve rse a nd rema nd. ¶ 76 Reverse d and re manded.

39