First Division   
                                                                                                                                                                                    December 19, 2005

JUSTICE McBRIDE delivered the opinion of the court:

Appellants Sherry Webb, Ronald McCoy, Phillip McClain, and Margie Webb (collectivelyPlaintiffs), appeal the trial court's order dismissing appellants' legal malpractice case against AppelleesMark Damisch and A. Hayes Barclay, d/b/a Damisch & Damisch and/or Barclay & Damisch, Ltd(collectively Defendants). Plaintiffs hired defendants to represent them in recovering damages forplaintiffs' injuries suffered in an August 1997 automobile accident. Plaintiffs sued defendants for legalmalpractice alleging that defendants were negligent in failing to sue General Motors (GM) for strictliability of a manufacturing defect in the automobile in which plaintiffs were traveling. Defendantsfiled a motion to dismiss the legal malpractice suit pursuant to sections 2-619(a)(4) and (a)(9) of theCode of Civil Procedure (735 ILCS 5/2-619(a)(4), (a)(9) (West 2000)). Defendants assertedplaintiffs could not establish either the proximate causation or damages elements of legal malpracticebecause plaintiffs' successor counsel sued GM for strict liability and negotiated a settlement inplaintiffs' favor for $2,265,000. The trial court granted defendants' motion to dismiss under section2-619(a)(9). Plaintiffs appeal the trial court's dismissal. For the reasons that follow, we affirm.

Sherry Webb, Ronald McCoy and Phillip McClain were involved in an automobile accidenton August 17, 1997, in which they sustained injuries. Sherry Webb is the mother of Ronald McCoy(a minor). Margie Webb is the mother of Phillip McClain (a minor). It is unclear from the recordhow Sherry and Margie Webb are related.

The parties do not dispute that the 1988 Oldsmobile Cutlass Supreme Sherry Webb wasdriving was the sole cause of the accident. Ronald McCoy and Phillip McClain were passengers inthe car at the time of the accident. Sherry Webb was driving southbound on Indianapolis Boulevardnear 103rd street in Chicago, Illinois. Without warning, Sherry Webb lost control of the car. Thesteering and brakes of the car completely failed. The car in which plaintiffs were traveling struck anautomobile next to it, crossed over into northbound lanes and struck another automobile head on.

The Oldsmobile manufacturer, GM, had issued recall notices for numerous defects with theOldsmobile, including an October 1990 recall for the front shoulder belt anchor and a March 1995Safety Campaign Bulletin pertaining to cracks that may develop in the wheel mounting surface. TheMarch 1995 Safety Campaign Bulletin states in part:

"These vehicles may exhibit a condition in which cracks develop in the wheelmounting surface and, should the cracks become severe enough, the wheel couldcompletely separate from the vehicle. If this were to occur while the vehicle was inmotion, steering and braking control of the vehicle could be affected, and a vehiclecrash could result without prior warning."

This Safety Campaign Bulletin was issued for all 1988 Oldsmobile Cutlass Supremes falling betweena certain Vehicle Identification Number (VIN) range. The Oldsmobile driven by Sherry Webb fellwithin the subjected range.

In late August or early September 1997, defendants were retained to represent dlaintiffs inan effort to obtain compensation for the injuries suffered during the automobile accident. Defendantsfiled suit against the seller of the Oldsmobile, Sierra Auto Sales (Sierra), but subsequently voluntarilydismissed the suit. The record does not contain any information pertaining to the lawsuit Defendantsfiled against Sierra, such as when Sierra was sued, what the cause of action was against Sierra, orwhy the case was voluntarily dismissed.

Although defendants were given a copy of the March 1995 Safety Campaign Bulletin byMargie Webb sometime in or around September 1997, they did not pursue a cause of action againstGM. At some point after September 1997, defendants stopped representing plaintiffs. Again, therecord does not indicate when or how this relationship ended. The record does not indicate whensuccessor counsel actually began representing plaintiffs, but on April 12, 2002, McCoy and McClain,represented by successor counsel, sued GM in the circuit court of Cook County for strict liability,asserting that manufacturing defects in the Oldsmobile contributed to the accident and plaintiffs'injuries. On July 12, 2002, Sherry Webb, represented by the same successor counsel, was added asa plaintiff to the strict liability suit against GM. On February 21, 2003, the two sides pursuedmediation and the strict liability lawsuit settled for $2,265,000, which was referred to in thesettlement agreement as "fair and reasonable." The settlement amount was divided amongst theplaintiffs. Sherry Webb received $15,000; Ronald McCoy received $250,000; and Phillip McClain(who was rendered a paraplegic as a result of the accident) received $2 million.

On May 17, 2004, plaintiffs, represented by the same successor counsel that negotiated theirsettlement with GM, filed a second amended complaint against defendants for legal malpracticeresulting from defendants not filing suit against GM for strict liability. In particular, Sherry Webballeged that as a result of defendants' failure to timely file suit on her behalf, the applicable statute oflimitations expired and she permanently and irrevocably lost her right of filing a strict liability actionagainst GM. McCoy and McClain both alleged that defendants were negligent in failing to secure theOldsmobile for use as evidentiary material on the issue of whether a manufacturing defect caused theAugust 1997 accident. As a result, McCoy and McClain claimed they lost the full value of recoveryagainst GM and incurred additional attorney fees and expenses addressing the issue. Sherry Webb,Ronald McCoy and Phillip McClain each prayed for judgment against defendants in excess of$50,000. Because Sherry Webb's claim of legal malpractice differs from that of McCoy and McClain,we will address Webb's claim first and will address McCoy and McClain's claims together as they areidentical.

Defendants moved to dismiss Plaintiffs' legal malpractice complaint under sections 2-619(a)(4)and (a)(9). Defendants argued that Sherry Webb was not time-barred from bringing a strict liabilitysuit against GM primarily because of the July 12, 2002, complaint (which was attached to theirmotion) showing Sherry Webb as a plaintiff in a strict liability suit against GM. Additionally,defendants argued that McCoy and McClain could not establish that the loss of the car preventedthem from securing the full value of their suit because GM settled the strict liability suit with SherryWebb, Ronald McCoy and Phillip McClain for $2,265,000. The settlement agreement betweenplaintiffs and GM detailed the terms of the settlement and was entered by the trial judge in the circuitcourt of Cook County and was attached to their motion to dismiss.

In responding to the defendants' motion, plaintiffs argued that a review of their attachedexhibits (a police report from the August 1997 accident, a signed witness statement from Chicagopolice officer James Bartkowiak, and the March 1995 General Motors Safety Campaign Bulletin)showed clear proof that defendants caused plaintiffs' damages. Plaintiffs also pointed to their medicalexpenses as further evidence of damages. Plaintiffs alleged that Sherry Webb accrued $113,564.07in medical bills, Ronald McCoy accrued $89,776.97 in medical bills, and Phillip McClain accrued$202,160.93 in medical bills. The record, however, does not contain any medical bills. Plaintiffsrepeated their charge that because of defendants' negligence, they lost the full value of their claim andthat a partial settlement of the underlying case did not bar plaintiffs from pursuing the legal malpracticeaction against defendants.

Defendants reply addressed plaintiffs' failure to controvert the proofs offered in support ofdefendants' motion to dismiss.

The trial court granted defendants motion to dismiss pursuant to section 2-619(a)(9), whichpermits a dismissal when "[t]he claim asserted against defendant is barred by other affirmative matteravoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2000). Plaintiffsappeal the trial court's dismissal.

We review whether the trial court properly granted defendants' motion to dismiss plaintiffs'legal malpractice case pursuant to section 2-619(a)(9). Plaintiffs contend that only a trial on the meritswill fully and fairly decide whether an attorney is liable for malpractice despite the fact that theunderlying case was settled. Defendants maintain that plaintiffs sustained no damages as a result ofdefendants' representation because plaintiffs ultimately sued GM for strict liability and settled theirstrict liability lawsuit with GM for a "substantial sum * * * which all parties deemed fair andreasonable."

A motion to dismiss under section 2-619 "allow[s] for a threshold disposition of questions oflaw and easily proven issues of fact." Mio v. Alberto-Culver, 306 Ill. App. 3d 822, 824 (1999). Undersection 2-619, a motion to dismiss should be granted if after construing the pleadings and supportingdocuments in the light most favorable to the nonmoving party, the trial court finds that no set of factscan be proved upon which relief could be granted. Mio, 306 Ill. App. 3d at 825. This process doesnot require the trial court to weigh facts or determine credibility and as a result, this court does notdefer to the trial court's judgment. Mio, 306 Ill. App. 3d at 825. Therefore, upon review we considerwhether the existence of a genuine issue of material fact should have precluded the dismissal or, absentsuch an issue of fact, whether dismissal was proper as a matter of law. Mio, 306 Ill. App. 3d at 825. We review motions to dismiss under section 2-619 de-novo. Mio, 306 Ill. App. 3d at 825. We maysustain the trial court's section 2-619 dismissal for any basis found in the record. Mio, 306 Ill. App.3d at 825.

An action may be dismissed under section 2-619(a)(9) on the ground that a claim asserted isbarred by other affirmative matter avoiding the legal effect of or defeating the claim. 735 ILCS 5/2-619(a)(9) (West 2000). The term "affirmative matter" includes a defense that completely negates theasserted cause of action. Serafin v. Seith, 284 Ill. App. 3d 577, 583 (1996). Affirmative matterasserted by the defendant must be apparent on the face of the complaint or supported by affidavits orother evidentiary materials. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997).

Defendants' motion included copies of plaintiffs' second amended complaint against GM andthe settlement agreement in that case. This supporting material will suffice to support considerationof Defendants' motion. See Geick v. Kay, 236 Ill. App. 3d 868, 874 (1992).

A trial court may properly dismiss a complaint where the affirmative matter refutes crucialconclusions of law or material fact that are unsupported by allegations of specific facts. Serafin, 284Ill. App. 3d at 583. The affirmative matter must be more than evidence offered to refute a well-pleaded fact in the complaint as such well-pleaded facts must be taken as true. Serafin, 284 Ill. App.3d at 583. Further, if the opponent to a section 2-619 motion does not counter the proofs offered insupport of the motion and the movant's showing of undisputed facts would entitle the movant tojudgment as a matter of law, a dismissal pursuant to section 2-619 is proper. Wood v. Village ofGrayslake, 229 Ill. App. 3d 343, 350 (1992).

To properly state a cause of action for legal malpractice, plaintiffs must allege in theircomplaint: (1) the existence of an attorney-client relationship that establishes a duty on the party ofthe attorney; (2) a negligent act or omission constituting a breach of that duty; (3) proximate causeestablishing that "but for" the attorney's negligence, the plaintiffs would have prevailed in theunderlying action; and (4) damages. Cedeno v. Gumbiner, 347 Ill. App. 3d 169,174 (2004). The basisof such a claim is that had it not been for negligence on the part of plaintiff's attorney, plaintiff wouldhave been compensated for an injury caused by a third party. Cedeno, 347 Ill. App. 3d at 174. Whenan attorney's negligence is alleged to have occurred during the representation of a client in theunderlying action, plaintiff must prove that counsel's negligence resulted in the loss of the underlyingaction. Cedeno, 347 Ill. App. 3d at 174. This means that plaintiff must prove a "case within a case." Cedeno, 347 Ill. App. 3d at 174. If the underlying cause remained actionable at the time plaintiffshired successor counsel, plaintiffs can prove no set of facts that connect defendants' conduct with anydamage plaintiffs sustained. Cedeno, 347 Ill. App. 3d at 174.

We first address Sherry Webb's claim of legal malpractice.

Sherry Webb alleged in her malpractice action that as a result of defendants' failure to timelysue GM for a manufacturing defect, she permanently and irrevocably lost her right to timely sue GMfor strict liability as a result of the August 1997 accident. Defendants' submissions, however, whichare not contested, show that Sherry Webb was a party to a strict liability suit against GM; that thestrict liability suit was filed on July 12, 2002 by successor counsel after defendants were no longerrepresenting plaintiffs; and successor counsel successfully negotiated a settlement with GM in the strictliability case.

Sherry Webb did not dispute that she was a named plaintiff in the July 12, 2002, complaintagainst General Motors for strict liability; she did not dispute that the strict liability suit was timelyfiled; or that she received $15,000 in the settlement with GM. What she claims, without anydocumentary evidence or specific fact, is that the $15,000 settlement she received was not enough. The settlement agreement indicates that the sum received was fair and reasonable.

Contrary to the undisputed facts, the language of Sherry Webb's complaint states that she"permanently and irrevocably lost her right of action against General Motors due to the expiration ofthe applicable statute of limitations." However, based on the evidence presented in the record,specifically, the July 2002 complaint in which Sherry Webb was named as a plaintiff in a strict liabilitysuit against GM and the settlement agreement in that case, it is clear that Sherry Webb did not"permanently and irrevocably [lose] her right of action against General Motors."

Moreover, the underlying case remained actionable at the time successor counsel beganrepresenting Sherry Webb, and successor counsel successfully settled the case on Sherry Webb'sbehalf. Sherry Webb cannot prove any facts that would connect defendants' conduct with any damageshe sustained. Cedeno, 347 Ill. App. 3d at 174; Land v. Greenwood, 133 Ill. App. 3d 537 (1985)(noting that because the cause of action remained viable at the time defendant was discharged ascounsel, and plaintiff hired new counsel, plaintiff could not connect defendant's conduct to any ofplaintiff's damages).

Where a party moving to dismiss a case pursuant to section 2-619 presents affirmative mattercontaining well-pleaded facts, and the party opposing the motion does not file any supportingdocumentation countering the facts, the moving party's affirmative matter is accepted as true despiteany contrary assertions in the opposing party's pleading. Wood, 229 Ill. App. 3d at 349-50. Therefore, we conclude that because Sherry Webb was able to file a strict liability cause of actionagainst General Motors, has presented no facts to support her claim that the settlement was anythingbut fair and reasonable, or that the running of a statute of limitations resulted in the dismissal of heraction or resulted in her settling the case for a lesser amount of damages the trial court properlygranted Defendants' motion to dismiss Sherry Webb's claim of legal malpractice.

We now turn to Ronald McCoy's and Phillip McClain's claim of legal malpractice. We addressthese claims together as they are identical.

McCoy and McClain both alleged that defendants were negligent in failing to secure theOldsmobile for use as evidentiary material on the issue of whether a manufacturing defect caused theAugust 17, 1997, accident. As a result, McCoy and McClain claim they lost the full value of recoveryagainst GM and incurred additional attorney fees and expenses addressing the issue. As pointed outabove, defendants' motions to dismiss were supported by the strict liability complaint McCoy andMcClain filed against GM, but also the settlement agreement in that case. Additionally, defendantspointed out that plaintiffs and GM referred to the settlement amount was "fair and reasonable."

McCoy and McClain responded by directing the court to their medical expenses, but did notsubmit documentary evidence of medical bills in their response. They did not counter with any exhibitsto show that the medical bills were paid, that they were associated with their damages, or that theamount they received in the settlement with GM was not fair and reasonable.

The settlement agreement shows that Ronald McCoy received $250,000 from GM and PhillipMcClain received $2 million from GM, but there is nothing in the record to contradict that thesettlement with GM was for anything less than full value of plaintiffs' claim. In fact, plaintiffs'settlement agreement with GM refers to the settlement as "fair and reasonable." Where a party movingto dismiss a case pursuant to section 2-619 presents affirmative matter containing well-pleaded facts,and the party opposing the motion does not file any supporting documentation countering the facts,the moving party's affirmative matter is accepted as true despite any contrary assertions in theopposing party's pleading. Wood, 229 Ill. App. 3d at 349-50. Based upon the above, we can onlyconclude that defendants' failure to secure the Oldsmobile for evidentiary material on the issue ofmanufacturing defect did not prevent McCoy and McClain from receiving full value from GM.

We also point out that the proximate cause element of a legal malpractice claim requires thatthe plaintiffs must plead facts sufficient to show that, but for the attorneys' malpractice, the clientswould have been successful in the undertaking the attorneys were retained to perform. Serafin, 284Ill. App. 3d at 587. The facts before this court, when viewed in a light most favorable to the plaintiffs,show that in spite of defendants failure to file a strict liability claim against GM, plaintiffs by way ofsuccessor counsel were able to file a strict liability claim against GM. Plaintiffs' new counsel filedmultiple strict liability claims against GM. Additionally, plaintiffs' new counsel was successful inrecovering damages on the strict liability claims against GM and negotiated a "fair and reasonable"settlement for plaintiffs consisting of what Margie Webb described as a "substantial sum" of money($2,265,000).(1)

Plaintiffs argue that their settlement with GM represents only a "partial settlement," butpresented no facts to support this claim. Plaintiffs contend that had defendants initially brought a strictliability claim against GM, plaintiffs would have been able to recover more damages. In support oftheir "partial settlement" claim, plaintiffs point to the recovery amounts each received and contrast thatwith the medical bills for each. Plaintiffs, however, failed to present any facts that their settlementwith GM was anything other than a full settlement for injuries suffered as a result of the August 17,1997, automobile accident. It is simply not enough for plaintiffs to indicate these amounts representplaintiffs' medical bills and therefore the settlement is not full, fair, or reasonable. Consequently,plaintiffs did not suffer any damages as a result of defendants' failure to secure the Oldsmobile ordefendants failure to sue GM earlier then successor counsel. Cedeno, 347 Ill. App. 3d at 174, 806N.E. 2d 1188.

Finally, plaintiffs argue that this case is controlled by McCarthy v. Pedersen & Houpt, 250 Ill.App. 3d 166 (1993). In McCarthy, the defendants filed commercial litigation claims on plaintiff'sbehalf in federal court. McCarthy, 250 Ill. App. 3d at 166. The case went to trial, and after the closeof evidence but before the jury returned a verdict, plaintiff agreed to settle the case. McCarthy, 250Ill. App.3d at 166. After plaintiff had an independent attorney review the settlement agreement, thesettlement agreement was executed. McCarthy, 250 Ill. App. 3d at 166-67. The independent attorneyplaintiff had review the settlement agreement was not associated with the defendant law firm. McCarthy, 250 Ill. App. 3d at 166-67.

After the settlement agreement was executed, plaintiff sued defendants in the circuit court ofCook County asserting attorney malpractice. McCarthy, 250 Ill. App. 3d at 167. The plaintiff inMcCarthy alleged that the defendant law firm failed to file a timely claim under the CommoditiesExchange Act and negligently selected an unqualified expert. McCarthy, 250 Ill. App. 3d at 167. Thedefendants filed a motion for summary judgment alleging that plaintiff voluntarily decided to settle theunderlying case, particularly in light of independent counsel's review of the settlement agreement,thereby precluding a claim of attorney malpractice. McCarthy, 250 Ill. App. 3d at 167. The circuitcourt denied the summary judgment motion because it could not determine as a matter of law thatplaintiff's malpractice suit was barred. McCarthy, 250 Ill. App. 3d at 167.

The McCarthy court affirmed the trial court's denial of summary judgment stating that therewere factual disputes that amounted to genuine issues of material fact that plaintiff should be allowedto develop at trial (particularly the level of independent counsel's involvement in the settlement,whether defendants were negligent, and plaintiff's damages.) The court determined that plaintiffs'malpractice claim was not automatically barred by settlement of the underlying matter. The McCarthycourt determined that "only a trial on the merits can fully and fairly resolve the issue of whether anattorney is liable for malpractice despite the fact that the underlying case was settled." McCarthy, 250Ill. App. 3d at 172. The McCarthy court pointed out that "[t]o hold otherwise could create ethicalproblems where an attorney, knowing that he mishandled a case, encourages his client to settle in orderto shelter himself from a malpractice claim."  McCarthy, 250 Ill. App. 3d at 172.

We agree with McCarthy that settlement by successor counsel does not necessarily bar amalpractice action against prior counsel. McCarthy, 250 Ill. App. 3d at 172. Further, an attorneymalpractice action should be allowed where the plaintiff can show that he settled for a lesser amountthan he could reasonable expect without the malpractice. Brooks v. Brennan, 255 Ill. App. 3d 260,270 (1994). But, such is not the case here.

Plaintiffs cannot establish that they were damaged by defendants. Defendants presentedevidence that plaintiffs were able to pursue a strict liability suit against GM, that plaintiffs settled thestrict liability case for $2,265,000, and that plaintiffs referred to the settlement amount as "fair andreasonable." Plaintiffs failed to present any evidence in their response to the motion to dismisscontroverting defendants' showing. Where a party moving to dismiss a case pursuant to section 2-619presents affirmative matter containing well-pleaded facts, and the party opposing the motion does notfile any supporting documentation countering the facts, the moving party's affirmative matter isaccepted as true despite any contrary assertions in the opposing party's pleading. Wood, 229 Ill. App.3d at 349-50. Here plaintiffs did not offer any documentation in response to show that they settledfor a lesser amount than could be reasonably expected without the malpractice. Thus, the trial courtproperly dismissed the action.

The decision of the circuit court of Cook County is affirmed.

Affirmed.

CAHILL, P.J., and BURKE, J., concur.

1. Margie Webb (Phillip McClain's mother) filed a petition for protective order as part ofthe process for establishing a special needs trust and a "structured disbursement" plan for PhillipMcClain's settlement ($2 million). In the petition for protective order, Margie Webb, representedby the same successor counsel that negotiated plaintiffs' settlement with General Motors and filedthe legal malpractice action against defendants, states that the parties in the strict liability suit withGeneral Motors "reached a settlement agreement for a substantial sum." Margie Webb's petitionwas also attached to defendants' motion to dismiss.