dissenting:
Because I do not believe that Wissore has alleged sufficient facts which would constitute damages as a result of the defendants’ conduct, I do not agree with the majority and respectfully dissent. As the majority points out, one of the elements of a legal malpractice claim is damages. In the present case Wissore alleged that he was damaged in one or more of the following ways: He was issued a contempt citation; he was wrongly advised to pay off the $32,870 loan; and he suffered irreparable damage to his reputation.
Addressing the contempt citation first, the defendants’ argument that Wissore suffered no damage because the citation was vacated is correct in my view. In Claire Associates v. Pontikes (1986), 151 Ill. App. 3d 116, 502 N.E.2d 1186, the court stated that “no malpractice exists unless counsel’s negligence has resulted in the loss of an underlying cause of action or the loss of a meritorious defense.” (Claire, 151 Ill. App. 3d at 122, 502 N.E.2d at 1190.) Clearly, Wissore lost no cause of action. It is the loss of a “meritorious defense,” specifically the failure to defend on the basis that Wissore did not perform the act which was the subject matter of the contempt hearing, which he alleges to be the cause of his damages. Yet as he was ultimately victorious on appeal, the loss of this defense, assuming that it was meritorious or was lost as a result of the defendants’ negligence, could not have caused Wissore any harm. The majority relies on Cook v. Gould (1982), 109 Ill. App. 3d 311, 440 N.E.2d 448. In Cook, the plaintiff argued that in malpractice cases based on the defendant attorney’s failure to file the cause of action within the applicable statute of limitations, the burden of proof should be shifted to the attorney to show that the underlying action was not meritorious and would not have been successful. As the majority points out, the court in Cook declined to change the law, but stated in dicta that it could conceive of situations where the attorney, because of equitable considerations, might be estopped to deny the validity of the underlying lawsuit, and that such estoppel would shift the burden of proof to the defendant attorney and require him to present some evidence of the lack of merit of the underlying action. The majority then goes on to state, without explanation, that the facts in the present case present such a situation. I do not agree. First, I see no reason why the defendants should be estopped from denying the merit of the defenses allegedly abandoned, and so am not persuaded that the burden of proof should be shifted to them. Second, even if it were the defendants’ burden to prove the lost defense was meritless, and, more importantly, even if the lost defense had merit, Wissore still has suffered no damage because he prevailed on appeal. Cook is simply inapplicable to the present situation. Because the contempt citation was vacated, Wissore could not have been damaged thereby.
Wissore’s next contention of damage is the repayment of the loan. Again, I find no facts alleged which could establish that he was damaged by repayment of the loan. As a co-guarantor, he was legally obligated to pay the note and, because his liability was joint and several, he was liable for the entire amount. He is in no way precluded from seeking contribution from his co-guarantors. No action of the defendants either caused him to assume any obligation that he did not have nor abandon any right that he had. His legal position with respect to the note and his co-guarantors is unchanged and, again, there are no facts alleged which could establish that Wissore was damaged by repayment of the note.
Wissore’s final allegation of damage is that his reputation and standing in the community were harmed as a result of the press coverage resulting from the contempt citation. He seems to be arguing that had the defendants raised the defense in question (that Wissore did not perform the acts which were the subject matter of the contempt hearing), the court would not have entered the contempt citation and so there would have been no press coverage. Once again, because the contempt citation was vacated on appeal, I find no facts alleged which, if proven, would demonstrate that Wis-sore was damaged. In any event, mere failure to prevent the contempt citation from being entered in the first instance cannot be grounds for legal malpractice (Schnidt v. Henehan (1986), 140 Ill. App. 3d 798, 489 N.E.2d 415, 420) unless it resulted from the defendant’s failure to exercise the requisite degree of care and skill. Wissore’s complaint alleges no facts which, if proven, would demonstrate that but for the failure to raise the defense, the contempt citation would not have been entered. Wissore failed to allege facts which would demonstrate that the defendants’ failure to raise the defense in question was anything more than a matter of trial tactics. The rule in Illinois is that “attorney[s are] not liable *** for errors in judgment, but only for failing to exercise a reasonable degree of care and skill, notwithstanding *** an unfavorable result.” Goldstein v. Lustig (1987), 154 Ill. App. 3d 595, 600, 507 N.E.2d 164, 168-69.