No. 3-02-0047

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

DONALD LEE BRUSH, 	 		 )	Appeal from the Circuit Court

DEBORAH BRUSH and DANIELLE	 )	of the 9th Judicial Circuit,

BRUSH,					 )	McDonough County, Illinois.

						 )

	Plaintiffs-Appellants,	 )

						 )

	v.					 )	No. 01-CH-15

						 )

JESSE R. GILSDORF, CRAIG F.	 )	

PIERCE AND PIERCE LAW OFFICES, )	Honorable James B. Stewart,

P.C., an Illinois professional )	Judge, Presiding.

corporation,				 )						 			 			 )

	Defendants-Appellees.	 )

_________________________________________________________________

Modified Upon Denial of Rehearing ODIFIED UPON DENIAL OF REHEARING

	JUSTICE McDADE delivered the opinion of the court:

_________________________________________________________________

	Plaintiffs, Donald Lee Brush, Deborah Brush, and Danielle

Brush, brought an action for breach of fiduciary duty against

their attorneys Craig F. Pierce and Jesse R. Gilsdorf and their

law firm. The trial court ordered plaintiffs' request for

punitive damages stricken from the complaint. Plaintiffs filed an

interlocutory appeal pursuant to Supreme Court Rule 308(a)(134

Ill. 2d R. 308(a)), which this court accepted. The sole question

on appeal is whether punitive damages are available in an action

for breach of fiduciary duty against an attorney. We find that they are not and we affirm.

BACKGROUND

	This appeal arises from an action brought by Jennifer Brush, the executrix of the estate of her deceased husband, Michael

Brush, to recover estate property from Michael's father, Donald

Brush and sister, Danielle Brush. 

	Michael suffered from an impulse disorder as a result of a

traumatic brain injury sustained in a motorcycle accident in

March 1997. His ability to function independently was also

impaired. 

	Following the accident, Michael was arrested more than eight

times and was charged in McDonough County with traffic

violations, disorderly conduct offenses and one aggravated

battery offense against a police officer. Michael's sister,

Danielle, hired attorney Craig F. Pierce and his law firm, the

Pierce Law Offices, to represent Michael on these criminal

charges. Defendant Jesse R. Gilsdorf, then an assistant State's

Attorney, represented the State on several of these charges.

Michael's fitness to stand trial became an issue, and Gilsdorf

had access to the report concerning Michael's confidential

psychological examination. In November 1997, Michael was found

unfit. 

	Michael died of a gunshot wound on July 25, 1998. He was

intestate and his sole heir at law was his wife, Jennifer. On

July 17, eight days before his death, Michael transferred $60,000 from a savings account he jointly held with Jennifer to a bank

account under Donald's name. 

	At the time of his death, Michael lived, apparently alone,

in a mobile home in which he had an equity interest of

approximately $3,300. He owed the seller $1,700. In August of

1998, Danielle contacted Pierce regarding Michael's estate.

Pierce immediately prepared a small estate affidavit, with

Danielle serving as executrix. Danielle moved into the mobile

home in the same month. In October 1998, Donald paid the

remaining balance owing on the mobile home from the funds given

to him by Michael in July 1998. 

	On February 11, 1999, Jennifer was named the independent

administrator of Michael's estate. Through her counsel, Jennifer

contacted Donald and Danielle seeking the return of any property

belonging to Michael's estate. 

	Donald and Danielle then requested Pierce to represent them

against the property claim made by Jennifer. Citing to a possible

conflict of interest from his previous representation of Michael,

Pierce referred Donald and Danielle to Gilsdorf, who had left the

State's Attorney's office and had become an associate attorney at

the Pierce Law Offices.

	Gilsdorf undertook the representation and Pierce agreed to

serve as a consulting attorney. According to Donald and Danielle,

neither Pierce nor Gilsdorf explained to them that Gilsdorf's

previous prosecution of criminal charges against Michael and his

knowledge of Michael's confidential psychological report could create a possible conflict of interest. 

	On December 16, 1999, Jennifer sued Donald and Danielle to

recover estate property. Between November 1999 and May 2000,

Jennifer made several written offers to settle her property

claims against Donald and Danielle. Jennifer moved to disqualify

attorneys Pierce, Gilsdorf and the Pierce Law Offices on July 12,

2000, alleging Gilsdorf's conflict of interest. By October 25,

2000, Pierce, Gilsdorf and the Pierce Law Offices had sought and

were granted leave to voluntarily withdraw as counsel for Donald

and Danielle.    

	On November 15, 2000, a judgment was entered against Donald

and Danielle in an amount exceeding Jennifer's settlement offers.

	On June 4, 2001, Donald and Danielle filed an action for

breach of fiduciary duty against Pierce, Gilsdorf and their law

firm. Plaintiffs essentially alleged that their attorneys failed

to disclose to them: (1) possible conflicts of interest and (2)

settlement offers from Jennifer. The complaint prayed for the

forfeiture of defendants' compensation as well as the amount of

judgment entered against Donald and Danielle. 

	Plaintiffs also sought punitive damages in connection with defendants' alleged misconduct. Defendants moved to dismiss the

prayer for punitive damages, and the trial court, in reliance on

section 2-1115 of the Illinois Code of Civil Procedure (735 ILCS

5/2-1115 (West 1992)), ordered the prayer stricken from the

complaint. The trial court also found that this matter involves a

question of law on which there is substantial ground for difference of opinion and that the immediate appeal of the matter

would materially advance the termination of the litigation.

Pursuant to Illinois Supreme Court Rule 308(a)(134 Ill. 2d R.

308(a)), plaintiffs filed an interlocutory appeal on January 19,

2002. 

ANALYSIS

I. The Applicability of Section 2-1115

	On appeal, plaintiffs contend that section 2-1115 of the

Illinois Code of Civil Procedure (735 ILCS 5/2-1115 (West 1992))

does not bar punitive damages in an action for breach of

fiduciary duty. Section 2-1115 bars punitive damages in healing

art and legal malpractice cases. It provides, in pertinent part:

	"In all cases, whether in tort, contract or

otherwise, in which the plaintiff seeks

damages by reason of legal, medical,

hospital, or other healing art malpractice,

no punitive, exemplary, vindictive or

aggravated damages shall be allowed." 735

ILCS 5/2-1115 (West 1992).

	Despite the broad language provided by section 2-1115, there

is a split within the Illinois Appellate Court as to the scope of

the prohibition of punitive damages. The First District has

construed the prohibition broadly, barring punitive damages even

if the malpractice constituted a fraud upon the plaintiff.

Calhoun v. Rane, 234 Ill. App. 3d 90, 599 N.E.2d 1318 (1992). This district expressly disagreed with this broad prohibition. In

Cripe v. Leiter, 291 Ill. App. 3d 155, 683 N.E.2d 516 (1997), the defendant attorney falsified bills with regard to the number of

hours that were spent on the client's case. The court reasoned

that although section 2-1115 precludes punitive awards in legal

malpractice suits, legal malpractice and common law fraud are

separate and distinct actions; therefore, punitive damages can be

awarded in fraud cases. Cripe, 291 Ill. App. 3d at 159. Our decision in Cripe is not dispositive of the present case because we deal not with fraud but with fiduciary duty. 

	A fiduciary relationship exists as a matter of law between

an attorney and his client. Drake v. Becker, 14 Ill. App. 3d 690, 696, 303 N.E.2d 212 (1973).  Thus, in effect any alleged

malpractice by an attorney also evidences a simultaneous breach

of trust; however, that does not mean every cause of action for

professional negligence also sets forth a separate and

independent cause of action for breach of fiduciary duty. Calhoun v. Rane, 234 Ill. App. 3d 90, 95, 599 N.E.2d 1318 (1992). Instead, the availability of punitive damages depends on whether  plaintiffs’ breach of fiduciary duty claim falls within "the rubric of [legal] malpractice." Owens v. McDermott, Will & Emery, 316 Ill. App. 3d 340, 351, 736 N.E.2d 145 (2000). In other words,

in determining the applicability of section 2-1115, the court

must look to the "nature of the behavior alleged" in plaintiffs'

complaint to "determine whether the activities fall within the

term ‛legal malpractice’." Safeway Insurance Co. v. Spinak, 267 Ill. App. 3d 513, 518, 641 N.E.2d 834, 837 (1994); Cripe, 291 Ill. App. 3d at 158-59 (section 2-1115 is only applicable if the

conduct alleged in the complaint amounts to legal malpractice). 

	According to Black's Law Dictionary, legal malpractice

"[c]onsists of failure of an attorney to use such skill,

prudence, and diligence as lawyers of ordinary skill and capacity

commonly possess and exercise in performance of tasks which they

undertake." Black's Law Dictionary 959 (6th ed. 1990). A review

of the record before this court reveals that the complaint

articulates nothing more than an action for legal malpractice. It

essentially alleges that plaintiffs' injury was brought about by

two related acts of misconduct, namely, defendants' failure to

explain the potential conflict of interest that existed between

attorney Gilsdorf and Michael, and defendants' failure to

disclose settlement offers. Both acts arose from the provision of

legal services. Here, because injury was suffered by reason of

the attorneys' professional conduct during the course of legal

representation, the gravamen of the claim is legal malpractice,

regardless of which theory or claim has been pled.  

	Furthermore, Illinois courts have repeatedly rejected breach

of fiduciary duty claims brought against attorneys on the basis

that they are duplicative of negligence or malpractice claims.

Neade v. Portes, 193 Ill. 2d 433, 739 N.E.2d 496 (2000). For example, in Calhoun, the client retained an attorney to represent him before the Illinois Industrial Commission. Although the

attorney did file a petition with the Commission, he allowed it to be dismissed for want of prosecution, failed to vacate the

dismissal, and failed to inform the client that the petition had

been dismissed. In the ensuing action by the client against the

attorney, the court held that the client had failed to

demonstrate a breach of fiduciary duty by the attorney apart from

professional negligence. Calhoun, 234 Ill. App. 3d  at 95. 

	In this case, section 2-1115 applies to bar the punitive

damages claim. 

II. Aggravating Circumstances

	Even if a breach of fiduciary duty claim were conceptually

distinct from a claim for legal malpractice and plaintiffs'

complaint sufficiently alleged every element of that claim,

punitive damages still may not be warranted in this case. The

Illinois Supreme Court has upheld section 2-1115 as a

constitutional expression of a legitimate legislative goal,

determining that it did not violate equal protection and due

process guarantees, the Illinois Constitution's single-subject

clause, or the ban on special legislation. Bernier v. Burris, 113 Ill. 2d 219, 497 N.E.2d 763 (1986). The supreme court recognized that the

legislature enacted this statute intending to prevent the

imposition of excessive liability and undue burdens on providers

of professional services. Bernier, 113 Ill. 2d at 246.

	The supreme court has also instructed indicated that because of their

penal nature, punitive damages are not favored, and Illinois

courts must be cautious in seeing that they are not improperly or

unwisely awarded. In re Estate of Wernick, 127 Ill. 2d 61, 83, 535 N.E.2d 876, 886 (1989); Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 188, 384 N.E.2d 353, 360 (1978). However, punitive damages

may be warranted in cases where the wrongful act complained of is

characterized by wantonness, malice, oppression or other

circumstances of aggravation.  Wernick, 127 Ill. 2d at 83-84; Knierim v. Izzo, 22 Ill. 2d 73, 87, 174 N.E.2d 157, 165 (1961); Glass v. Burkett, 64 Ill. App. 3d 676, 683, 381 N.E.2d 821, 826 (1978).

	Such aggravating circumstances are not present in this case.

Nothing in the facts alleged in the complaint imply that the

attorneys' actions were willful or wanton. In light of the facts

that Michael Brush and his estate are separate persons and that

Gilsdorf had never represented any party to the underlying

action, the existence of a possible conflict of interest is not

so readily apparent that the representation could be viewed as

willful and wanton misconduct.  Moreover, assuming the truth of

plaintiffs’ allegations , the non-disclosure of settlement offers

to the client is a violation of professional obligations falling

squarely within the parameters of legal representation.  We

believe these to be simple allegations of breach of fiduciary

duty falling within the rubric of legal malpractice and,

therefore, are insufficient for the purpose of awarding punitive

damages. 

	Plaintiffs cite In re Marriage of Pagano, 154 Ill. 2d 174, 607 N.E.2d 1242 (1992), and Lurz v. Panek, 172 Ill. App. 3d 915, 527 N.E.2d 663 (1988), to support their position regarding punitive damages. However, the misconduct alleged by the

plaintiffs in those cases occurred prior to the enactment of section 2-1115. Therefore, the portion of each opinion regarding

punitive damages arising from legal malpractice is not applicable

following the effective date of section 2-1115. 

CONCLUSION

	For the reasons discussed above, plaintiffs' breach of

fiduciary duty claim is not beyond the scope of section 2-1115.

Their request for punitive damages is barred accordingly.

	Affirmed. 

	LYTTON, P.J., and BRESLIN, J.,concur.