Palmros v. Barcelona

No. 2--95--1340
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

ANDRA P. PALMROS, ) Appeal from the Circuit Court
) of Kendall County.
Plaintiff-Appellant, )
)
v. ) No. 94--L--46
)
JOHN BARCELONA, ) Honorable
) Grant S. Wegner,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________

JUSTICE RATHJE delivered the opinion of the court:

Plaintiff, Andra Palmros, sued defendant, attorney John
Barcelona, for malpractice in drafting and executing the will of
her former husband, Alexander Palmros II (Alexander). The trial
court dismissed the complaint as time barred (see 735 ILCS 5/2--
619(a)(5)(West 1994)) by section 13--214.3 of the Code of Civil
Procedure (section 13--214.3) (735 ILCS 5/13--214.3 (West 1994)).
On appeal, plaintiff argues that (1) her complaint was timely; and
alternatively (2) section 13--214.3 is unconstitutional. We
affirm.
Plaintiff and Alexander were divorced in 1981. Alexander
executed his will and an accompanying life insurance trust on
August 6, 1992. He died on August 8, 1992, survived by plaintiff
and the two adult children of their marriage. The will was
admitted to probate, and the Palmros children contested it. On
August 5, 1994, plaintiff filed this suit.
The complaint alleged the following facts. Defendant drafted
and executed the will and the insurance trust, and he undertook to
assure that the required legal formalities were followed so that
the will and trust would be duly executed. Throughout this
process, defendant acted as Alexander's attorney and agent. In
employing defendant, Alexander intended that plaintiff receive the
bulk of his estate and that the Palmros children receive no gift or
inheritance except insofar as required by the settlement agreement
incorporated into the 1981 divorce judgment. Defendant owed a duty
of care to Alexander, his client, and to plaintiff, the intended
beneficiary of the attorney-client relationship, in supervising the
drafting and proper execution of the will and the trust. However,
defendant breached this duty. As a result, the Palmros children
filed two suits contesting the validity of the will and the trust,
making plaintiff a defendant in each case. Plaintiff had suffered
or would suffer two types of damages: (1) the attorney fees she
spent to defend the will contests; and (2) any loss that would
result if the court ultimately invalidated the will or the trust.
Defendant moved to dismiss the suit. He argued it was
untimely under section 13--214.3, which, as then in effect, stated
in relevant part:
"(b) An action for damages based on tort, contract, or
otherwise (i) against an attorney arising out of an act or
omission in the performance of professional services *** must
be commenced within 2 years from the time the person bringing
the action knew or reasonably should have known of the injury
for which damages are sought."
(c) Except as provided in subsection (d), an action
described in subsection (b) may not be commenced in any event
more than 6 years after the date on which the act or omission
occurred.
(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 [755 ILCS 5/1--1 et seq.
(West 1994)]." (Emphasis added.) 735 ILCS 5/13--214.3 (West
1994).
Defendant asserted (with supporting documentation) that the
will was admitted to probate on June 16, 1993, and that public
notice had already been given that claims against the estate had to
be filed six months from December 10, 1992, the date notice was
first given. Under section 8--1 of the Probate Act of 1975 (755
ILCS 5/8--1 (West 1992)), a petition to contest the validity of a
will had to be filed within six months of the admission of the will
to probate. Thus, according to defendant, section 13--214.3(d)
required plaintiff to file her suit by December 16, 1993.
The trial court agreed, dismissed the complaint, and denied
plaintiff's motion to reconsider. On appeal, she argues primarily
that section 13--214.3(d) does not apply here because the injury
for which she seeks redress occurred either before the death of
Alexander (in which case the two-year limitation period of section
13--214.3(b) applies) or only after the will was invalidated (in
which case the complaint was premature). We disagree. We hold
that plaintiff's cause of action accrued when she incurred attorney
fees to defend the Palmros children's petition to contest the will.
Because her injury occurred after the death of Alexander, section
13--214.3(d)'s special limitation period bars this suit.
Plaintiff has moved to supplement the record on appeal with
copies of (a) the Palmros children's petition to contest the will;
(b) defendant's motion to dismiss part of a malpractice suit the
Palmros children brought against him; and (c) an order dismissing,
with leave to amend, one count of the Palmros children's petition
contesting the will. The Palmros children's petition is already in
the record; in this respect, the motion is moot. The remaining
documents were not before the trial court. A reviewing court will
not consider evidence not before the trial court. Logan v. Old
Enterprise Farms, Ltd., 139 Ill. 2d 299, 237 (1990); Prochnow v. El
Paso Golf Club, Inc., 253 Ill. App. 3d 387, 392 (1992). We deny
the motion to supplement the record with these items.
Defendant has moved to strike those portions of plaintiff's
brief that he claims raises issues that plaintiff did not present
at the trial level. We deny the motion as it raises proper grounds
for affirmance but not for striking parts of plaintiff's brief.
Whether plaintiff's suit is timely depends on whether section
13--214.3(d) applies here. Plaintiff filed her complaint well
after either the time for bringing will contests or claims against
the estate. Section 13--214.3(d) applies if the "injury" plaintiff
allegedly suffered from defendant's malpractice did not occur until
after Alexander's death. We believe plaintiff suffered her injury
when she began to incur the attorney fees in the will contests. At
this point, and no earlier, her cause of action for attorney
malpractice accrued.
Plaintiff asserts that "injury" as used in the statute is
synonymous with damages. We agree. A cause of action for attorney
malpractice requires an attorney-client relationship, a duty
arising from that relationship, a breach of that duty, and actual
damages or "injury" proximately caused by that breach. Goran v.
Glieberman, 276 Ill. App. 3d 590, 593 (1995); Austin's Rack, Inc.
v. Gordon & Glickson, P.C., 145 Ill. App. 3d 500, 503 (1986);
Bartholomew v. Crockett, 131 Ill. App. 3d 456, 465 (1985). Actual
damages are an essential element of a cause of action for attorney
malpractice; with no damages, no cause of action has accrued.
Bartholomew, 131 Ill. App. 3d at 465-66.
It follows that there can be no "injury for which damages are
sought" (735 ILCS 5/13--214.3(b) (West 1994)) until a plaintiff has
suffered a loss. As the statute implies, the "injury" is not the
negligent act itself; it is something "caused by the [negligent]
act or omission" (735 ILCS 5/13--214.3(d) (West 1994)), viz., a
loss for which the plaintiff may seek damages. This is consistent
with the case law making damages an element of a cause of action.
One opinion states that the "injury" that triggers the statute
of limitations is the attorney's breach of his duty of due care.
Sutton v. Mytich, 197 Ill. App. 3d 672, 676 (1990). However,
Sutton's holding follows the rule we have set out. In Sutton, the
defendant negligently drafted a marital separation agreement for
the plaintiff, but the court held that the statute of limitations
started only after the trial court in the marriage dissolution
proceeding made the agreement enforceable by approving it. Sutton,
197 Ill. App. 3d at 677. In any event, Sutton was not based on
section 13--214.3, and, to the extent it is inconsistent with later
cases, we elect not to follow it. We do not believe that the
limitation period can start before all the elements of a cause of
action are present. Therefore, we reject any suggestion that the
negligent act itself starts the limitation period running.
Thus, when plaintiff incurred damages as a proximate result of
defendant's alleged negligence becomes the decisive question. We
believe plaintiff has supplied a clear answer. Her complaint
alleges that, as a proximate result of defendant's mistakes, she
incurred attorney fees in defending the Palmros children's
challenge to the will. Of course, the Palmros children did not
contest the will until after Alexander died. Therefore,
plaintiff's injury did not occur until the death of the person for
whom defendant rendered his services, and the shortened limitation
period of section 13-214.3(d) applies.
Attorney fees incurred as a proximate result of a lawyer's
malpractice are damages that make a cause of action complete and
thus may start the running of the limitation period. In Goran,
which applied the two-year limitation period of section 13-
214.3(b), the plaintiff alleged that the defendant's negligence in
bringing her appeal from a dissolution of marriage judgment forced
her to hire new counsel to redo the defendant's brief and the
record on appeal so they complied with court rules. The appellate
court held that the plaintiff's cause of action accrued when she
incurred fees to bring the defective briefs into compliance with
the rules. These attorney fees proximately resulted from the
defendant's negligence and put the plaintiff on notice that she had
a cause of action. Goran, 276 Ill. App. 3d at 596.
Plaintiff argues that it would be unfair to apply section 13--
214.3(d) here, as she could have discovered her injury only after
the court in the underlying proceeding invalidated the will. We
disagree. As the complaint itself asserts, plaintiff's attorney
fees to defend the will contests resulted from defendant's alleged
negligent acts. The situation here is analogous to that in Goran,
where the plaintiff's injury arose (at least in part) even before
her appeal was decided. As Goran observed, damages are speculative
only if their existence itself is uncertain and not if their exact
amount is uncertain or yet to be fully determined. Goran, 276 Ill.
App. 3d at 595. No unfairness results from starting the limitation
period at the point where plaintiff first suffered damages, as
plaintiff was not deprived of a reasonable time in which to sue.
The Palmros children filed their actions a few days before the
admission of the will to probate, leaving approximately six months
until the limitation period expired.
Plaintiff posits another reason section 13--214.3(d) does not
apply here. She states that the circuit court eventually
invalidated Alexander's will, and, thus, the will was never
admitted to probate. Aside from relying on facts outside the
record, this argument is without merit. The order admitting the
will to probate is separate from any later will contest. Section
13--214.3(d) recognizes this distinction and requires only that the
will be admitted to probate for the special limitation period to
begin. What happens after the will is admitted to probate is
another matter and does not affect the entry of the order.
We hold that the trial court was correct in finding that the
complaint was not filed in time and must be dismissed. Although we
do not accept all the trial court's reasoning, we may affirm the
judgment on any basis called for by the record. In re Marriage of
Sanda, 245 Ill. App. 3d 314, 320-21 (1993).
Plaintiff also argues that section 13--214.3(d) violates equal
protection and due process. The trial court refused to consider
this argument because plaintiff did not raise it until her motion
to reconsider. See Gardner v. Navistar International
Transportation Corp., 213 Ill. App. 3d 242, 248 (1991); Kaiser v.
MEPC American Properties, Inc., 164 Ill. App. 3d 978, 987 (1987).
The trial court's action was proper, and we do not consider
plaintiff's constitutional argument either. Moreover, on appeal,
plaintiff has supported her argument with only cursory analysis and
tangentially relevant authority. Arguments presented only
inadequately on appeal are waived, and we need not reach them.
Poplar Grove State Bank v. Powers, 218 Ill. App. 3d 509, 517
(1991). Also waived is plaintiff's argument that defendant is
equitably estopped to invoke the limitation period. Plaintiff did
not raise this theory at all at the trial level, and thus defendant
could not introduce evidence to refute it. Here, her argument is
one general paragraph with no discussion of pertinent authority.
As the equitable estoppel issue has not been presented properly
either at the trial level or here, we decline to consider it.
The judgment of the circuit court of Kendall County is
affirmed.
Affirmed.
GEIGER and HUTCHINSON, JJ., concur.