Zelenka v. Krone

No. 3--97--0279
_________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1997

DORIS ZELENKA, ) Appeal from the Circuit Court
) for the 18th Judicial Circuit,
Plaintiff-Appellant, ) DuPage County, Illinois
)
v. ) No. 96--L--0009
)
THOMAS J. KRONE, ESQ., and )
DAVID M. SVEC, ESQ. ) Honorable
) Hollis L. Webster
Defendants-Appellees. ) Judge, Presiding
_________________________________________________________________

MODIFIED UPON DENIAL OF REHEARING
JUSTICE BRESLIN delivered the opinion of the court:
_________________________________________________________________

On appeal, we are asked to determine whether section 5/13--
214.3(d) of the Limitations Act (Act)(735 ILCS 5/13--101 et seq.
(West 1996)) applies to a cause of action for legal malpractice
when the suit is based on an invalid inter vivos trust and the
cause of action accrued after the client's death. The second issue
we must determine is whether the applicable statute of limitations
precludes the beneficiary's claim. We hold that section 5/13--
214.3(d) only applies to probate assets and it does not apply to
the inter vivos trust in the instant case. We also hold that the
two-year statute of limitations under section 13--214.3(b) is not
a bar to the beneficiary's cause of action. Accordingly, we
reverse and remand.
FACTS
The defendant, Thomas Krone, drafted an inter vivos trust for
Ernest Zelenka in which Ernest named his wife, plaintiff Doris
Zelenka, as a co-beneficiary to "one-half (1/2) of all real estate
held under the terms of this trust." Krone also prepared a will
for Ernest that left the residuary of Ernest's estate to his son
and nephew. Under the terms of the trust any property owned by
Ernest that was not otherwise disposed of pursuant to the trust
passed to his estate and then through the residuary clause of his
will. Doris's attorney, David Svec, reviewed the trust and advised
Doris that it was a valid disposition.
Ernest died in April of 1993, and his will was admitted to
probate on July 28, 1993. The publication of claims that was
issued by the estate indicated that all claims had to be filed by
January 28, 1994. On December 27, 1993, Ernest's son and nephew,
acting as beneficiaries of the estate, notified the trustee of the
inter vivos trust that Doris took no interest as a beneficiary of
the trust. They claimed that the trust improperly characterized
Doris's interest in "real estate" rather than a "beneficial
interest in real estate." Doris's attorney, William Grossmann,
received a copy of this notification and on December 30, 1993, sent
a letter to Krone. It informed Krone that the trust's validity was
being questioned and asked him to contact Grossmann immediately.
On February 4, 1994, Doris entered an agreement with Grossmann to
retain his services for any claims against Ernest's estate.
On January 4, 1996, Doris filed a legal malpractice claim
against Krone and Svec. Krone and Svec moved to dismiss the
complaint pursuant 735 ILCS 5/2--619 (West 1996), asserting that
the six-month statute of repose in section 5/13--214.3(d) of the
Act barred the cause of action. The court found that the cause of
action accrued on December 30, 1993, and held that the suit was
barred by the two-year statute of limitations found in section
5/13--214.3(b) of the Act (735 ILCS 5/13--214.3(b) (West 1996)).
Doris appeals.
STANDARD OF REVIEW
A motion to dismiss admits all facts well-pleaded in the
plaintiff's complaint. Village of Riverwoods v. BG Ltd.
Partnership, 276 Ill. App. 3d 720, 658 N.E.2d 1261 (1995). Where
the grounds for dismissal do not appear on the face of the
pleadings, a motion to dismiss pursuant to section 2--619 of the
Code of Civil Procedure should be supported by affidavits. 735 ILCS
5/2--619 (West 1996); Waterford Executive Group v. Clark-Bardes,
Inc., 261 Ill. App. 3d 338, 633 N.E.2d 1003 (1994). On appeal from
an order dismissing a complaint, this court applies the de novo
standard of review. Benbenek v. Chicago Park District, 279 Ill.
App. 3d 930, 665 N.E.2d 500 (1996).
ANALYSIS
The primary issue on appeal is whether section 5/13--214.3 (d)
governs this case when a beneficiary of an inter vivos trust files
a legal malpractice claim against the trust's drafter after the
settlor's death.
In general, the statute of limitations in a legal malpractice
action is two years. 735 ILCS 5/13--214.3(b) (West 1996). However,
effective January 1, 1991, section 5/13--214.3(d) of the Act
established:
(d) When the injury caused by the act or omission does
not occur until the death of the person for whom the
professional services were rendered, the action may be
commenced within 2 years after the date of the person's
death unless letters of office are issued or the person's
will is admitted to probate within that 2 year period, in
which case the action must be commenced within the time
for filing claims against the estate or a petition
contesting the validity of the will of the deceased
person, whichever is later, as provided in the Probate
Act of 1975." 735 ILCS 5/13--214.3(d)(West 1992).
Subsection (d) was removed from the Code by an amendatory act dated
March 9, 1995. 735 ILCS 5/13--214.3(d)(West 1996).
Doris contends that section 5/13--214.3(d) is inapplicable
because the malpractice claim involves an inter vivos trust and
subsection (d) applies only to probate assets. We agree.
In the instant case, the applicability of subsection (d)
turns on whether 5/13--214.3(d) applies only to those claims
involving assets subject to probate. When interpreting a statute
the primary function of this court is to ascertain and give effect
to the intent of the legislature. Business & Professional People v.
Illinois Commerce Commission, 146 Ill. 2d 175, 585 N.E.2d 1032
(1991). If the language of the statute is certain and unambiguous,
it should be given effect without resorting to extrinsic aids for
construction. Graunke v. Elmhurst Chrysler Plymouth Volvo, Inc.,
247 Ill. App. 3d 1015, 617 N.E.2d 858 (1993).
Subsection (d) specifically limits the time in which a person
may commence an action to two years unless letters of office are
issued or a will is admitted to probate. In addition, it states
that it applies to actions commenced within the time for filing
claims under the Probate Act. Thus, it is apparent from the
language of section 5/13--214.3(d) that it applies only to legal
malpractice actions related to claims against an estate or
petitions contesting the validity of a will under the Probate Act.
It does not pertain to those assets that are not subject to
distribution in accordance with the Probate Act.
The instrument at issue is an inter vivos trust and is not
subject to distribution under the terms and conditions of Ernest's
probate estate. One of the primary objectives for creating a trust
rather than a will is to remove the trust assets from the settlor's
estate and avoid a probate proceeding. Bogert, Trusts & Trustees
231, at 5-6 (2nd ed. 1992). Accordingly, because the trust in the
instant case is not a probate asset, section 5/13--214.3(d) does
not apply.
The next issue we must consider is whether Doris's claim is
barred by the two-year statute of limitations under section 5/13--
214.3(b) of the Act.
A cause of action for legal malpractice accrues when the
plaintiff knows or reasonably should know of an injury and also
knows or reasonably should know that the injury was caused by the
wrongful act of another. Knox College v. Celotex Corp., 88 Ill. 2d 407, 430 N.E.2d 976 (1981); Jackson Jordon, Inc. v. Leydig, Voit &
Mayer, 158 Ill. 2d 240, 633 N.E.2d 627 (1994). When the plaintiff
knew or should have known that an injury occurred and that it was
wrongfully caused is generally a question of fact. Witherell v.
Weimer, 85 Ill. 2d 146, 421 N.E.2d 869 (1981). Therefore, unless
the facts are undisputed and only one conclusion can be drawn, the
court may not rule on this question as a matter of law. Witherell,
85 Ill. 2d at 156, 421 N.E.2d at 874.
Doris contends that her cause of action accrued when she
signed the retainer agreement and began incurring attorney fees in
an attempt to reform the instrument drafted by Krone. She argues
that her cause of action is not time-barred by the statute of
limitations under section 5/13--214.3(b) because the claim did not
accrue until February 4, 1994.
The defendants contend that the cause of action accrued, at
the latest, on December 30, 1993, the date Doris's attorney sent a
letter to defendant Krone inquiring about the terms of the trust.
Because Doris filed her claim on January 4, 1996, they argue that
her claim is time-barred. The defendants concede that the letter
sent by Grossmann to Krone cannot be considered at this juncture
because it was not properly authenticated. Nevertheless, the
defendants contend that there is uncontradicted evidence in the
record to support the trial court's finding of an accrual date of
December 30, 1997.
We have reviewed the record carefully and must disagree with
the defendants' contentions. In the instant case, Doris knew or
should have known of her injury Based on the record as it has
evolved thus far, Doris's cause of action for legal malpractice
accrued on the date when she incurred an obligation to pay legal
fees due to Krone's and Svec's negligent conduct. See Goran v.
Glieberman, 276 Ill. App. 3d 590, 659 N.E.2d 56 (1995)(where the
plaintiff had no previous knowledge of her attorney's negligence,
her cause of action for legal malpractice accrued when she had
knowledge of additional attorney fees). At that point, and no
earlier, Doris's cause of action for legal malpractice accrued.
Doris executed a retainer agreement and began incurring attorney
fees on February 4, 1994, when she retained counsel to determine
the validity of the inter vivos trust. Prior to that date it is
unclear from the record whether Doris knew or should have known
that the trust had been improperly drafted and approved. In
addition, the record fails to provide any well-plead facts or
properly submitted affidavits to support the trial court's finding
that the accrual date was December 30, 1993. See Waterford
Executive Group v. Clark-Bardes, Inc., 261 Ill. App. 3d 338, 633 N.E.2d 1003 (1994)(a trial court may not consider arguments or
matters unsupported by affidavits). Thus, the court's finding that
the case should be dismissed as a matter of law was erroneous.
Accordingly, we hold that the trial court erred in finding that the
complaint was not filed in time.
For the foregoing reasons, the judgment of the circuit court
of DuPage County is reversed and remanded.
Reversed and remanded.
HOMER and SLATER, JJ., concur.