Barratt v. Goldberg

FOURTH DIVISION
April 23, 1998


No. 1-96-3349

REA BARRATT, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY
)
v. )
)
JERRY S. GOLDBERG, EVAN JAMES MAMMAS, )
and MAMMAS and GOLDBERG, LTD., )
a professional corporation, )
) HONORABLE
) KATHY M. FLANAGAN,
Defendants-Appellees. ) JUDGE PRESIDING.

JUSTICE McNAMARA delivered the opinion of the court:

In February or March of 1987, plaintiff retained the law
firm of Mammas & Goldberg, Ltd., and specifically defendant Jerry
S. Goldberg (Goldberg), to represent her in a dissolution of
marriage action (84 D 12301) against her former husband. Mammas
& Goldberg, Ltd., and Goldberg represented plaintiff up to and
including the entry of the judgment for dissolution of marriage
in December 1987. The judgment for dissolution of marriage was
entered pursuant to a settlement agreement.
On March 11, 1996, plaintiff filed a legal malpractice
action against the defendants for negligence and breach of
contract. Plaintiff alleged that Goldberg negligently advised
her to settle the dissolution of marriage action in December
1987, without conducting adequate discovery or a proper
investigation of the value of the marital estate. Goldberg
valued the marital estate at $1.9 million, when in fact it was
worth approximately $10 million. Plaintiff alleged that as a
direct and proximate result of Goldberg's negligence, she was
damaged in that she accepted a settlement that was far less than
she was entitled to receive under the law. Plaintiff alleged
that Goldberg's partner, Evan James Mammas, and the firm, Mammas
& Goldberg, Ltd., were vicariously liable for Goldberg's
negligence.
In the spring of 1991, plaintiff retained another lawyer to
determine whether the 1987 judgment of dissolution entered
pursuant to the settlement agreement could be vacated or
modified. Plaintiff alleged that it was at this time that she
first was advised of and became aware of Goldberg's alleged
negligent representation. Plaintiff knew or should have known of
her proposed legal malpractice cause of action in the spring of
1991. Plaintiff filed her complaint on March 11, 1996, almost
nine years after the allegedly negligent acts and five years
after her discovery of them.
The statute of limitations applicable to legal malpractice
actions was amended, effective January 1, 1991, to reduce the
statute of limitations from five years to two years and to impose
a six year statute of repose. 735 ILCS 5/13-214.3 (West 1992).
Defendants filed a motion to dismiss plaintiff's complaint,
arguing that plaintiff's cause of action was barred by the two
year statute of limitations and the six year statute of repose.
Plaintiff also argued, although not in her written motion, that
her legal malpractice action was not barred because of the
extended statute of limitations for fraudulent concealment
provided by section 13-215 of the Code of Civil Procedure (the
Code)(735 ILCS 5/13-215 (West 1992)). The trial court rejected
this argument.
On August 23, 1996, the trial court entered an order
granting defendants' motion to dismiss and dismissing all
plaintiff's claims and causes of action with prejudice.
Plaintiff appeals.
On appeal plaintiff contends: (1) that the trial court erred
in applying the two year statute of limitations for legal
malpractice actions set forth in section 13-214.3 of the Code
(735 ILCS 5/13-214.3 (West 1992)), as the negligent conduct at
issue occurred before the effective date of this shortened
statute of limitations; (2) the trial court erred in computing
the statute of repose from the date of the negligent act or
conduct; and (3) the trial court erred in rejecting plaintiff's
fraudulent concealment claim without granting leave to amend.
For the following reasons, we affirm the trial court's dismissal
of plaintiff's cause of action.
Plaintiff first contends that the court erred in applying
the newly shortened statute of limitations for legal malpractice
claims set forth in section 13-214.3 of the Code (735 ILCS 5/13-
214.3 (West 1992)), which became effective January 1, 1991. The
last of the alleged negligent conduct occurred in December 1987,
when the dissolution judgement was entered. The parties agree
that the plaintiff did not discover her injury until the spring
of 1991, shortly after the effective date. Plaintiff contends
that because the negligent conduct at issue occurred before the
effective date of this shortened statute of limitations, the
trial court should have applied the statute of limitations in
force at the time of the negligent act (five years) or, in the
alternative, used the statute of repose to determine timeliness.
Section 13-214.3 of the Code (735 ILCS 5/13-214.3 (West
1996)), provides for a two year statute of limitations and a six
year statute of repose for causes of action alleging legal
malpractice. It further provides:
"(f) The provisions of Public Act 86-1371 creating
this Section apply to all causes of action accruing on
or after its effective date." 735 ILCS 5/13-
214.3(f)(West 1996)
The effective date was January 1, 1991.
Looking at the plain language of the statute, the question
becomes, When did plaintiff's cause of action accrue? If it
accrued prior to January 1, 1991, plaintiff is correct and the
two year statute of limitations does not apply. If, however, the
cause of action accrued after the January 1, 1991, effective
date, the two year statute of limitations does apply.
The Illinois Appellate Court has taken different approaches
to determining when a cause of action for legal malpractice
accrues. One line of cases, illustrated by the first district
opinion in Dolce v. Gamberdino, 60 Ill. App. 3d 124, 376 N.E.2d 273 (1978), holds that the action accrues at the time of the
negligent act. Another line of cases, illustrated by Tucek v.
Grant, 129 Ill. App. 3d 236, 472 N.E,2d 563 (1984), holds that a
cause of action for legal malpractice does not accrue until the
client discovers or should discover the factors establishing the
elements of his cause of action. See also Zelenka v. Krone, 294
Ill. App. 3d 248, 689 N.E.2d 1154 (1997). The first district has
recently held that the position taken in Dolce, is no longer
viable and that a cause of action for legal malpractice accrues
when the plaintiff knows or reasonably should know of his injury
and that it was wrongfully caused. Goodman v. Harbor Market,
Ltd., 278 Ill. App. 3d 684, 663 N.E.2d 13 (1995); Goran v.
Glieberman, 276 Ill. App. 3d 590, 659 N.E.2d 56 (1995).
We reject plaintiff's argument that there are two accrual
dates - one when all the elements of the legal malpractice have
occurred and one when plaintiff first has knowledge of the cause
of action. We find Goodman v. Harbor Market, Ltd., 278 Ill. App.
3d 684, 663 N.E.2d 13 (1995), to be dispositive on the issue of
accrual.
In Goodman, the plaintiff alleged a cause of action for
legal malpractice which occurred on April 29, 1985, prior to the
effective date of section 13-214.3 of the Code. The parties
agreed that the plaintiff did not discover his injury until July
2, 1993, well after the effective date. The court held that
because section 13-214.3 of the Code applies to causes of action
accruing on or after January 1, 1991, and plaintiff's cause of
action accrued on July 2, 1993, when she discovered her injury,
section 13-214.3 of the Code applies to plaintiff's suit.
Similarly, in the present case, plaintiff knew or reasonably
should have known of her injury and that it was wrongfully caused
in the spring of 1991, after the effective date of section 13-
214.3 of the Code, when she met with a second attorney to discuss
the possibility of vacating or modifying the 1987 dissolution
judgment. Consequently, the cause of action accrued in the
spring of 1991, after the effective date and, therefore, the two
year statute of limitations applies and plaintiff's complaint,
filed on March 11, 1996, was not timely filed.
Plaintiff contends that application of these principles in
the present case will produce an unjust or absurd result because
if she had discovered her cause of action in December 1990, just
prior to the effective date, she would have had five years to
file her cause of action, but because she discovered her cause of
action in the spring of 1991, just after the effective date, she
only had two years to file. This is not an unjust result. It is
inherent in the shortening of a statute of limitations that
someone whose cause of action accrues prior to the shortening of
the limitations period will have a longer time in which to file
his or her suit. As long as plaintiff's cause of action was not
cut off by the new shortened statute of limitations before she
had a reasonable time in which to file, she has no issue with the
new statute. See Moore v. Jackson Park Hospital, 95 Ill. 2d 223,
447 N.E.2d 408 (1983). In the present case, plaintiff had the
full two years from the date of accrual, envisioned by the
statute's drafters, to file her cause of action.
Plaintiff's reliance on Costello v. Unarco Industries, Inc,
111 Ill. 2d 476, 490 N.E.2d 675 (1986), and Hermitage Corp. v.
Contractors Adjustment Co., 166 Ill. 2d 72, 651 N.E.2d 1132
(1995), is misplaced. Costello deals with statutes of repose,
not statutes of limitations, and therefore is inapplicable. In
Hermitage, there was no issue regarding which statute of
limitations applied, as both the negligent act, discovery, and
consequently accrual occurred prior to the effective date.
Since plaintiff's cause of action accrued after the
effective date of section 13-214.3 of the Code, the trial court
did not err in applying the two year statute of limitations.
Plaintiff's complaint is time barred.
Because we find plaintiff's cause of action to be barred by
the applicable two year statute of limitations, it is unnecessary
to address plaintiff's statute of repose argument.
We further reject plaintiff's contention that the trial
court erred in rejecting plaintiff's fraudulent concealment and
equitable estoppel claims.
Section 13-215 of the Code provides:
"If a person liable to an action fraudulently
conceals the cause of such action from the knowledge of
the person entitled thereto, the action may be
commenced at any time within 5 years after the person
entitled to bring the same discovers that he or she has
such cause of action, and not afterwards." 735 ILCS
5/13-215 (West 1992).
Generally, the concealment must consist of affirmative acts or
representations that are calculated to lull or induce a claimant
into delaying filing his claim or to prevent a claimant from
discovering his claim. Smith v. Cook County Hospital, 164 Ill.
App. 3d 857, 518 N.E.2d 336 (1987). Mere silence on the part of
the defendant and failure by the claimant to learn of the cause
of action are not enough. Smith, 164 Ill. App. 3d at 862.
Furthermore, the allegedly fraudulent statements or omissions
that form the basis of the cause of action may not constitute the
fraudulent concealment in the absence of a showing that they tend
to conceal the cause of action. Smith, 164 Ill. App. 3d at 862;
Zagar v. Health & Hospitals Governing Comm'n, 83 Ill. App. 3d
894, 404 N.E.2d 496 (1980).
Plaintiff ignores this well-established rule and suggests
that the course of conduct that constituted the alleged legal
malpractice - the settling of her divorce action without adequate
investigation because of defendants' contentions that it was the
best they could do - also was the basis for her fraudulent
concealment claim. Absent an allegation of an affirmative act of
concealment apart from the allegedly wrongful conduct of
defendants, the extended five year statute of limitations does
not apply.
Plaintiff points out that a fiduciary relationship existed
between the defendants and the plaintiff. However, allegations
that plaintiff failed to discover her cause of action against
defendant due to the trust and confidence placed in defendants as
fiduciaries are essential to toll the statute of limitations and
invoke section 13-215 of the Code. Witt v. Jones & Jones Law
Offices, P.C., 269 Ill. App. 3d 540, 646 N.E.2d 23 (1995); Hagney
v. Lopeman, 147 Ill. 2d 458, 590 N.E.2d 466 (1992). Such
allegations are lacking in this case. Jackson Jordan, Inc. v.
Leydig, Voit & Mayer, 158 Ill. 2d 240, 633 N.E.2d 627 (1994),
relied on by plaintiff, is distinguishable. The defendant law
firm in that case made continuous reassurances to the plaintiff,
which delayed plaintiff's filing of her suit. No such assurances
were made in this case. Indeed, plaintiff had no contact with
defendants after the December 1987 settlement. Defendants did
nothing to induce plaintiff to delay filing her malpractice suit
or to prevent plaintiff from discovering her cause of action for
legal malpractice.
More importantly, plaintiff actually knew of her cause of
action within the limitations period provided in section 13-214.3
of the Code. Illinois courts have consistently held that if the
plaintiff discovers the fraudulent concealment and a reasonable
time remains within the relevant limitations period, section 13-
215 of the Code will not apply to lengthen the limitations
period. Anderson v. Wagner, 79 Ill. 2d 295, 402 N.E.2d 560
(1979); Turner v. Nama, 294 Ill. App. 3d 19, 689 N.E.2d 303
(1997); Witt v. Jones & Jones Law Offices, P.C., 269 Ill. App. 3d
540, 646 N.E.2d 23 (1995). Moreover, even when a fiduciary
fraudulently conceals a cause of action, the relevant inquiry is
still whether a reasonable time remains in the limitations period
to file suit. If so, then the plaintiff must file within the
statutory period or else be time barred. Leffler v. Engler,
Zoghlin & Mann, Ltd., 157 Ill. App. 3d 718, 510 N.E.2d 1018
(1987). See also Harvey v. Connor, 85 Ill. App. 3d 1061, 407 N.E.2d 879 (1980). In the present case, the plaintiff discovered
the alleged concealment and her cause of action in April 1991,
when she sought the advice of the second attorney. Plaintiff
then had the full two-year limitations period in which to file
her action. Therefore, even assuming defendants acted so as to
fraudulently conceal the cause of action, plaintiff had ample
time to file her complaint within the limitations period. Yet,
plaintiff, without explanation, waited until 1996 to file her
complaint. Accordingly, section 13-215 of the Code does not
apply. See Witt v. Jones & Jones Law Offices, P.C., 269 Ill.
App. 3d 540, 646 N.E.2d 23 (1995); Leffler v. Engler, Zoghlin &
Mann, Ltd., 157 Ill. App. 3d 718, 510 N.E.2d 1018 (1987); Harvey
v. Connor, 85 Ill. App. 3d 1061, 407 N.E.2d 879 (1980).
Plaintiff also contends that the trial court should have
granted her leave to amend her complaint. There is no absolute
right to amend a pleading. Butler v. Kent, 275 Ill. App. 3d 217,
655 N.E.2d 1120 (1995). It is well established that the decision
whether to allow an amendment to a complaint lies within the
sound discretion of the trial court, and its discretion will not
be disturbed absent an abuse of that discretion. Braun-Skiba,
Ltd. v. La Salle National Bank, 279 Ill. App. 3d 912, 665 N.E.2d 485 (1996). We cannot say that the trial court abused its
discretion in failing to grant plaintiff leave to amend her
complaint.
We similarly reject plaintiff's argument that defendants
should be equitably estopped from raising the statute of
limitations defense. The doctrine of equitable estoppel will not
apply to a case if the defendant's conduct terminated within
ample time to allow the plaintiff an opportunity to file a cause
of action within the limitation period. Serafin v. Seith, 284
Ill. App. 3d 577, 672 N.E.2d 302 (1996); Cramsey v. Knoblock, 191
Ill. App. 3d 756, 547 N.E.2d 1358 (1989); Smith v. Cook County
Hospital, 164 Ill. App. 3d 857, 518 N.E.2d 336 (1987). Plaintiff
had two years in which to file her action.

Accordingly, for the reasons set forth above, we affirm the
judgment of the circuit court of Cook County.
Affirmed.
CERDA, P.J., and WOLFSON, J., concur.