YORK CENTER FIRE PROTECTION DISTRICT, Plaintiff-Appellant, v. KUBIESA, SPIROFF, GOSSELAR AND ACKER, P.C., et al., Defendants-Appellees, 375 Ill. App. 3d 352

JUSTICE HUTCHINSON delivered the opinion of the court: Plaintiff, York Center Fire Protection District, appeals from the trial court’s dismissal, with prejudice, of its second amended complaint alleging professional negligence against defendants, Kubiesa, Spiroff, Gosselar & Acker, EC., and its agent, John Fennell. Plaintiff argues that the trial court erred in concluding that it failed to adequately plead damages. For the reasons that follow, we affirm. On October 3, 2005, plaintiff filed its second amended complaint against defendants, alleging the following.

In September 2001, plaintiff determined that a referendum was necessary to increase its revenue and asked defendants, specifically Fennell, to make recommendations regarding a referendum. Defendants were aware of the amount of increased tax revenue that plaintiff desired to obtain through the referendum process. Two public questions were placed on the ballot on November 5, 2002, based on defendants’ final recommendations.

Prior to voting, the voting public was informed that the upcoming referendum would result in a 35% increase to the taxable rate; however, in reality, the taxable rate recommended by defendants was not more than 10%. The voting public was also advised that plaintiff would receive approximately $400,000 in funding under the tax increase; however, the most that could be obtained was $90,000.

The referendum passed, and plaintiff later learned that its “intent and purpose behind the referendum had not been met.” According to plaintiff, as a result of its reliance on defendants’ erroneous legal advice, it sustained losses of no less than $400,000 in property tax revenue. “[Pjlaintiff had presented the voters with a plan for increased operations, facilities, and equipment, which could not be realized due to the recommendations of the defendant, and had to be put on reserve for two years.” Plaintiff was also required to submit a subsequent referendum to voters, which passed.

According to plaintiff, from the passage of the first referendum to the passage of the second referendum, it suffered damages “identifiable at no less than 25% to 30% loss of revenue, which amounts to in excess of $200,000.00 per year.” On October 7, 2005, defendants moved to dismiss the complaint under

section 2 — 615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2 — 615 (West 2004)). Defendants argued that plaintiff failed to adequately plead both proximate cause and damages. Plaintiff filed a response, and defendants filed a reply. On March 6, 2006, the trial court granted defendants’ motion. The trial court held that although “[t]here is no question that the plaintiff has pled proximate cause,” plaintiff failed to plead damages. Plaintiff timely appealed. The issue before the court is whether the complaint states a cause of action upon which relief could be granted. A motion to dismiss under

section 2 — 615 of the Code attacks the legal sufficiency of a complaint by alleging defects appearing on its face and should be granted if the complaint does not allege sufficient facts to state a cause of action. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484 (1994). When reviewing a motion to dismiss under

section 2 — 615, the court must accept as true all well-pleaded facts and interpret the allegations in a light most favorable to the plaintiff. Young v. Bryco Arms, 213 Ill. 2d 433, 441 (2004). “If, however, after any legal and factual conclusions are disregarded, the complaint does not allege sufficient facts to state a cause of action, the motion to dismiss should be granted.” Rockford Memorial Hospital v. Havrilesko, 368 Ill. App. 3d 115, 120 (2006). Our review is de novo. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1084 (1994).

A plaintiff in a legal malpractice action must plead the following: (1) the existence of an attorney-client relationship; (2) a duty arising from that relationship; (3) a breach of that duty by the defendant; (4) proximate cause; and (5) damages. Claire Associates v. Pontikes, 151 Ill. App. 3d 116, 122 (1986). Here, we agree with the trial court that plaintiff failed to plead damages. Plaintiff pleaded that, if the first referendum had been proper, plaintiff would have obtained greater revenue in the period between the passage of the first referendum and the passage of the second.

However, a municipal corporation is not entitled to make a profit (Schuman v. Chicago Transit Authority, 407 Ill. 313, 320 (1950)), and thus a loss of money, in and of itself, cannot damage it. As the trial court put it, “a municipal corporation cannot accumulate money for the purpose of accumulating money.” Accordingly, plaintiff had to plead damages beyond the mere loss of money. To that end, plaintiff attempted to plead that it was damaged by the delay in obtaining its desired revenue. But plaintiff did not succeed.

It is true that, in a legal malpractice action, a plaintiff may sue for the loss of the use of money, which ordinarily is an economic loss that the Moorman doctrine precludes in tort. See Calcagno v. Personalcare Health Management, Inc., 207 Ill. App. 3d 493, 501 (1991) (loss of use of money is subject to Moorman doctrine); Radtke v. Murphy, 312 Ill. App. 3d 657, 664-65 (2000) (legal malpractice is exception to Moorman doctrine). However, that loss generally is measured in interest (see Illinois State Toll Highway Authority v.

American National Bank & Trust Co. of Chicago, 162 Ill. 2d 181, 199 (1994)), and plaintiff here did not allege that it had lost interest. Instead, it alleged only that it had to wait two years to upgrade its “operations, facilities, and equipment.” Undoubtedly, plaintiff was temporarily unable to implement its plan, but it simply did not allege any resulting loss. It did not plead that its upgrades were so immediately necessary that it was forced to spend alternative funds to effect them. It did not plead that its outmoded attributes subjected it to liability for some unfortunate accident.

It did not even plead that it was forced to incur attorney fees or other costs to submit the second referendum. Again, plaintiff alleged only that it was delayed in implementing its plan. That, without more, did not establish damages. See Harlev v. Sanitary District of Chicago, 226 Ill. 213, 225 (1907) (public body may not recover damages for delay in completion of public improvement, as injury is mere public inconvenience and is incapable of measurement). Accordingly, the trial court properly granted defendants’ motion to dismiss. We affirm the judgment of the circuit court of Du Page County. Affirmed.

ZENOFF, J., concurs.