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Where a matter comes to an appellate court on a dismissal under 735 Ill. Comp. Stat. Ann. 5/2-619 (2002), the appellate court's review is de novo. A claim may be dismissed pursuant to § 2-619(a)(9) if it is barred by other affirmative matter avoiding the legal effect of or defeating it. In ruling on a § 2-619 motion to dismiss, a circuit court may consider external submissions of the parties, including depositions and affidavits. If a claim is thus dismissed, the question on appeal is whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law. Upon review, all well-pleaded facts, as well as reasonable inferences to be drawn from those facts, are taken as true.
After Elizabeth Lopez, the daughter of plaintiff Jose Lopez, drowned in a pool that was allegedly maintained by the Rockford School District, Lopez retained defendant Clifford Law Offices (the Clifford firm) to represent him and Elizabeth's estate in a wrongful death action. Several months later, an attorney in the Clifford firm notified Lopez that it could not represent him. The attorney incorrectly advised Lopez that a two-year limitations period was applicable, when in fact the limitations period was one year. Lopez consulted another attorney within that one-year period, but he did not retain him. A successor attorney was retained after the one-year period had expired, but prior to the end of the two-year period, and a wrongful death action was filed. The action was dismissed because the limitations period had expired. Lopez filed a legal malpractice action against the Clifford firm and the individual attorneys. The trial court granted dismissal to the firm, its attorneys, and the initial referring attorney under 735 Ill. Comp. Stat. Ann. 5/2-619 (2002), finding that the wrongful death action was viable when the representation ceased. Lopez appealed.
Was the dismissal of the legal malpractice action against defendants proper under the circumstances?
The court reversed the order of the trial court and remanded the matter for further proceedings. According to the court, the dismissal was error, as Lopez’s mere consultation with another attorney was not a superseding cause that excused defendants. The case precedents relied on by defendants presented different situations, and questions of fact existed as to causation which were properly for determination by a trier of fact.