Articles Posted in Statute of Limitations Defense

Source: LAMET v. Levin, Ill: Appellate Court, 1st Dist., 3rd Div. 2015 – Google Scholar

This is a legal malpractice case that the Illinois court held was barred by the six-year statute of repose and also by the two-year statute of limitations. Lamet hired Levin in 1994 to represent him in a dispute with his landlord. Lamet’s landlord claimed that Lamet owed $34,000. Levin fought the litigation for 17 years. (Levin claimed that he was being charged for more square feet than he actually rented). Ultimately, in 2011, Levin recommended that the litigation be settled for the sum of $150,000.

Lamet then sued Levin for legal malpractice “essentially asserting that Levin should have advised him in 1994 to accede to his landlord’s demands and forgo defense of the lawsuit.”

The trial court dismissed the case and the Illinois Appellate Court affirmed the dismissal in an opinion by Justice Mason.

The court explained that the statute of repose begins to run not when the negligent act is discovered by the client but when the negligent act occurred. The court explained: “The statute of repose in a legal malpractice case begins to run as soon as an event giving rise to the malpractice claim occurs, regardless of whether plaintiff’s injury has yet been realized. Mauer v. Rubin, 401 Ill. App. 3d 630, 639 (2010). Illinois courts have consistently held that the statute of repose is not tolled merely by the continuation of the attorney-client relationship. Id. at 640 (citing Witt v. Jones & Jones Law Offices, P.C., 269 Ill. App. 3d 540, 544 (1995)); see Hester v. Diaz, 346 Ill. App. 3d 550 (2004); Serafin v. Seith, 284 Ill. App. 3d 577 (1996). Rather, “`where there is a single overt act from which subsequent damages may flow, the statute [of repose] begins to run on the date the defendant invaded the plaintiff’s interest and inflicted injury, and this is so despite the continuing nature of the injury.'” Mauer, 401 Ill. App. 3d at 642 (quoting Feltmeier v. Feltmeier, 207 Ill. 2d 263, 279 (2003)). Moreover, the period of repose is not tolled by the attorney’s ongoing duty to correct past mistakes. Fricka v. Bauer, 309 Ill. App. 3d 82, 84 (1999).”

Under this law, the claim for negligence in 1994 was barred by the statute of repose.

The court also concluded that the claim was barred by the two-year statute of limitations. “Nevertheless, we point out that Lamet knew or should have known since 1994 that any defense based on a claim that the actual square footage of the leasehold was substantially overstated was factually unfounded. On May 23, 1994, prior to Levin’s appearance in the underlying case, an architect hired by Lamet sent a letter addressed to Richman at Lamet’s office, in which he calculated the actual square footage of the office. Lamet argues that this letter was sufficient to put Levin on notice that his square footage argument was meritless. But, by the same token, the letter should have put Lamet on notice that the argument was meritless, or at least prompted further inquiry on his part. This is particularly true since Lamet is a lawyer, not a layperson who is presumptively unable to discern malpractice as it occurs. Butler v. Mayer, Brown & Platt, 301 Ill. App. 3d 919, 923 (1998).”

Lastly, the court held that there was no fraudulent concealment of any fact by Levin that would allow Lamet to argue that the statute of limitations was tolled. Because Levin did not fail to disclose any material fact, the fraudulent concealment exception did not apply.

In sum, this is an easy statute of repose case that offers the reader an introduction to the two statutes that so often bar legal malpractice claims.

Edward X. Clinton, Jr.

www.clintonlaw.net

This is an unpublished decision of the Illinois Appellate Court, captioned Ilija Vasilj v. Harvey Teichman, 2015 IL App (1st) 133955-U. The Appellate court affirmed a decision to grant summary judgment to the lawyer on statute of limitations grounds.

The complaint alleged that in 2007 Vasilj purchased the first floor of a building located at 2650 West Belden in Chicago, Illinois. The first floor was undeveloped, but the second and third floors had existing condominiums. Vasilj intended to develop 12 condominiums for resale. At the time of the purchase, “the second and third floors of the building were part of the existing Brau Haus Condominium Association … and subject to the Declaration of Condominium Ownership. The declaration did not include the first floor of the building as a part of the condominiums. The association, in an attempt to incorporate the first floor, passed the first amendment to the declaration which included the first floor in the association. However, the association did not record a new plat of survey reflecting the changes. The failure to record a new plat survey resulted in a defective title to Vasilj’s property. ¶ 6.

Vasilj alleged that he retained Teichman to represent him in the purchase of the Belden property and that “prior to closing, Teichman did not review the amendment to the declaration, nor did he know that a new plat survey was never filed and recorded with the amendment. The resulting defective title to Vasilj’s property would prohibit him from selling the condominiums that he would later develop. Unaware of the defective title, Vasilj closed on the Belden property and began development of the condominiums.” ¶ 7.

Later in 2008 Vasilj entered into contracts with buyers to sell the condominium units. However, due to the defective title, the sales did not close and were cancelled.

On January 3, 2011, Vasilj sued Teichman for legal malpractice. Vasilj alleged that Teichman breached the duty of care by failing to ensure that Vasilj received good title to the property.

The trial court granted summary judgment on statute of limitations grounds. The trial court held that Vasilj knew he was injured no later that August 25, 2008.

The Appellate Court held that “when contracts to purchase his condominiums did not close in July and October of 2008, Vasilj should have been aware that he suffered an injury resulting from the defective title.”  The court explained that “the discovery rule does not delay the running of the statute of limitations until one has actual knowledge of negligent conduct. …Instead, it begins when one ‘has a reasonable believe that the injury was caused by wrongful conduct thereby creating an obligation to inquire further.'” ¶ 20.

This case is a straightforward application of the two-year statute of limitations.

Edward X. Clinton, Jr.

Meyers v. LIVINGSTON, ADLER, PULDA, 87 A. 3d 534 – Conn: Supreme Court 2014 – Google Scholar.

One recurring theme in lawsuits against lawyers is whether the plaintiff can sue for breach of contract and thereby obtain a longer statute of limitation. In Illinois, the statute of limitations for a breach of contract is either 5 years (oral) or 10 years (written). In Connecticut, the contract statute of limitation is 6 years, but the legal malpractice statute is 3 years.

Here, the court concluded that the action (filed more than three years after the claim arose) was untimely because the action was based upon a legal malpractice theory, not a contract theory. In particular, the plaintiffs’ allegations that the lawyer breached the Rules of Professional Conduct convinced the court that the case was a malpractice case not a contract case.

This case is similar to the Evanston Insurance v. George Riseborough case, 5 N.E. 158 (2014) decided by the Illinois Supreme Court earlier this year. Both cases held that the legal malpractice statute of limitations applied to the lawyer’s conduct.

Edward X. Clinton, Jr.

One of the recurring themes that I see is that a client has a problem with a lawyer, but the client waits years and years before addressing what to do about it. Inevitably, the statute of limitations (2 years from discovery of injury) runs while the client deals with other issues.

First, if you are the subject of a bad ruling in a case, ask your lawyer to appeal the ruling. If the decision cannot normally be appealed, ask the trial court to certify it for an immediate appeal. Rule 304 allows a litigant to attempt to certify a question for an appeal:

Rule 304. Appeals from Final Judgments That Do Not Dispose of an Entire Proceeding

(a) Judgments As To Fewer Than All Parties or Claims—Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing a notice of appeal shall be as provided in Rule 303. In computing the time provided in Rule 303 for filing the notice of appeal, the entry of the required finding shall be treated as the date of the entry of final judgment. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.

Second, if you cannot appeal soon, work to resolve the case quickly and obtain a final judgment from which you can appeal.

Third, if you suspect that your lawyer made a serious error that cost you money, contact an experienced malpractice lawyer right away.

Too often, we meet people who may have been able to attack a bad ruling with an appeal or a new lawyer, who fail to do anything for years. We cannot help those people. Don’t be afraid to ask for a second opinion.

Edward X. Clinton, Jr.

I last discussed this problematic topic on June 30th. This unpublished decision, Godbold v. Karlin & Fleisher, LLC, 2014 IL App (1st) 131523-U, illustrates a malpractice trap contained in Illinois law.

Usually, the rule in Illinois is that you must wait to file your malpractice action until you lose the underlying lawsuit. However, you should not wait to sue while the underlying decision is on appeal. That is the unfortunate mistake that the lawyers made in the Godbold case.

Underlying Case – Plaintiff Missed the Statute of Limitations

Godbold hired the lawyers to represent her in a medical malpractice action Unfortunately, the trial court found that the case was not timely filed and dismissed it on May 7, 2010. Godbold then appealed that decision, which was affirmed on June 17, 2011 by the Illinois Appellate Court.

The Legal Malpractice Case – Plaintiff Again Misses the Statute of Limitations

On June 25, 2012, Godbold sued Karlin & Fleisher for legal malpractice. The problem with the lawsuit is that Godbold sued more than two years after the underlying case was dismissed. The appellate court affirmed. The court explained how the discovery rule works in this fashion:

“A suit for legal malpractice 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.’ 735 ILCS 5/13-214.3(b). The Illinois courts have held that the claim arises when the underlying case was dismissed, or May 7, 2010. The appellate court then held that the appeal of the medical malpractice dismissal did not toll the statute of limitations. This decision is consistent with other Illinois cases. As the court notes in its thoughtful opinion, “a ‘legal malpractice plaintiff does not have the burden to prove the exhaustion of all avenues of appeal on the underlying claim in order to state a legal malpractice action.'” Bloome v. Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., 279 Ill. App. 3d 469, 475 (1996).

Conclusion

The key thing to remember is that it is better to sue too early than too late. If you lose a case due to the negligence of your lawyer, your injury has occurred and you should sue immediately.

Finally, this opinion discusses an important issue and should be published.

Edward X. Clinton, Jr.

 

Illinois has two statutes that establish time limits for when you can sue for legal malpractice. The statute of limitations gives the plaintiff two years from the time the negligence was discovered. However, the statute of repose bars any claim unless the negligent act occurred within six years of the filing of the lawsuit.  This means that you have two years from the time you discovered the injury to file a lawsuit, unless the negligent act of the lawyer is more than six years old.

What happens when you believe that your lawyer’s advice caused you to be sued? The Illinois courts have held in several such cases that the plaintiff is not required to sue for malpractice immediately. Instead, the plaintiff can wait until the underlying litigation is resolved. One such case is Warnock v. Karm Winand and Patterson, 1-06-0341, 876 N.E.2d 8 (2007).  The plaintiffs hired the defendant law firm to handle a real estate closing. The closing was to occur in April 2000. Plaintiffs claimed that the buyer (Mr. and Mrs. Brown) defaulted and plaintiff attempted to retain the earnest money. On August 1, 2000, the Browns filed suit, claiming that that plaintiffs had no right under the contract to withhold the earnest money.

Question – were the plaintiffs required to file suit against their lawyer when they were sued?  Did plaintiffs malpractice claim arise on August 1, 2000? Or did the claim arise when the plaintiffs lost the underlying case?

The Appellate court held that the injury did not arise until the underlying lawsuit was lost. “When the Browns initiated litigation, plaintiffs did not know if the Brown litigation was merely a frivolous attempt to recover $342,750, or whether the letter agreements were drafted in contravention of Illinois law. In fact, plaintiffs could not have known that Patterson’s letter agreements were faulty until the circuit court granted the Browns’ motion for summary judgment. … Since plaintiffs did not actually discover and reasonably could not have discovered that the letter agreements drafted by Patterson were negligently prepared until the circuit court entered judgment on the pleadings in Browns’ favor, we conclude that the entry of that adverse judgment marked the date on which the statute of limitations commenced.”

In a similar case, the Illinois Supreme Court stated: “The mere assertion of a contrary claim and the filing of a lawsuit [by a third party are] not, in and of themselves, sufficiently compelling to induce the client to seek a second legal opinion. Meritless claims and nuisance lawsuits are, after all, a fairly commonplace occurrence. It would be strange if every client were required to seek a second legal opinion whenever it found itself threatened with a lawsuit.” Jackson Jordan Inc. v. Leydig, Voit and Mayer, 158 Ill. 2d 240 (1994).  Indeed, if you file suit before the underlying case has reached a judgment, the malpractice case can be dismissed on the ground that it is premature. Lucey v. Law Offices of Pretzel & Stoufer, Chartered, 301 Ill. App. 3d 349 (1998) (Lawsuit was premature because damages were speculative where the plaintiff had not yet lost the underlying case).

In sum, the plaintiff should wait until the underlying case is lost before filing suit unless there is a risk that the statute of repose will expire.

Edward X. Clinton, Jr.

www.clintonlaw.net

 

Illinois has a statute of limitations (2 years from discovery) and a statute of repose (6 years from the alleged negligent act by the attorney). In estate planning matters, Illinois also has another provision 735 ILCS 5/13-214.3(d) which governs injuries that occur on the death of the client.

In 2002, LeRoy Voga retained James Nash, an estate planning attorney, to prepare an estate plan, including a trust. LeRoy Voga passed away on September 26, 2006.

In January or February 2009, plaintiffs, Voga’s children, sued on a number of theories, including legal malpractice. Plaintiffs alleged that the trust caused them to incur estate taxes they would not otherwise have incurred. They voluntarily dismissed the case without prejudice, but refiled the case in February 2010. After lengthy proceedings in the trial court, including the filing of two amended complaints, the trial court dismissed the case pursuant to Section 13-214.3(d).

This is the relevant text of the Illinois Statute of Limitations for attorney malpractice:

(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 or (ii) against a non-attorney employee arising out of an act or omission in the course of his or her employment by an attorney to assist the attorney in performing 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.”

The trial court held that the purported injury did not occur until the death of Larry Voga. Therefore, "'since the injury did not occur until the death of Larry Voga, the action must have been commenced within 2 year s of his death, unless letter[s] of office were issued. Letters of office were not issued following Voga's death, rendering the suit untimely."

The plaintiffs argued that Section (d) contains the word “may,” which should be permissive rather than mandatory. The Appellate Court disagreed and cited numerous prior cases, including cases decided by the Illinois Supreme Court. According to the court, “may” really means “shall.”

The court was very careful to review all of the confusing cases under subsection (d) of the Section 214. Given the thoughtful discussion of the statute and the review of the prior caselaw, it is a pity that the case is unpublished.

The case is captioned Voga v. Nash, 2014 Il App (2d) 130750-U.

EVANSTON INSURANCE COMPANY v. RISEBOROUGH, Ill: Supreme Court 2014 – Google Scholar.

The Illinois Statute of Repose bars claims against a lawyer arising out of actions that occurred more than six years before the case was filed. In this case, an insurance company (Evanston) sued two lawyers and alleged that the lawyer defendants wrongfully entered into a settlement agreement on behalf of Evanston’s insured.

The lawyer defendants moved to dismissed based upon the Statute of Repose. (735 ILCS 5/13-214.3 (West 2008). The trial court granted the motion, but the Illinois Appellate Court reversed. It held that the statute of repose did not apply because Evanston was not a client of the lawyer defendants.

The Illinois Supreme Court, in turn, reversed and held that the Statute of Repose applies to any claim against a lawyer arising out of the lawyer’s professional services.

The Court explained:

“¶ 19 The appellate court’s conclusion that section 13-214.3 applies only to a claim asserted by a client of the attorney is contrary to the plain language expressed in the statute. There is nothing in section 13-214.3 that requires the plaintiff to be a client of the attorney who rendered the professional services. The statute does not refer to a “client” nor does it place any restrictions on who may bring an action against an attorney. The statute simply provides that an action for damages against an attorney “arising out of an act or omission in the performance of professional services” is subject to the six-year repose period. Thus, under the express language of the statute, it is the nature of the act or omission, rather than the identity of the plaintiff, that determines whether the statute of repose applies to a claim brought against an attorney…

The complaint alleged damages to Evanston based on defendant’s actions in executing the agreement in the absence of Kiferbaum’s authorization. Thus, under the plain, unambiguous language of the statute, Evanston’s claims in its second amended complaint “arose out of” defendants’ actions “in the performance of professional services” on behalf of Kiferbaum, defendants’ client. We hold that the statute of repose in section 13-214.3(c) applies to Evanston’s second amended complaint, which was properly dismissed as time-barred pursuant to the statute.”

This case brings clarity to the law.

One final note. On June 7, 2012, I wrote an article in which I argued that the Appellate Court’s decision was erroneous:

“Comment: This is a highly controversial decision that should be heard by the Illinois Supreme Court.
The opinion should have been published as a matter of course so that those who follow these issues could comment on it.

My view is that the holding of the panel is erroneous.  These lawyers were doing legal work, defending their client from a claim.  They signed an agreement as agents of the client.  Later, the client and the insurance company threw the lawyers under the bus and the insurer brought a claim against them.  Since the lawyers were doing legal work, they are entitled to the protections of the Statute of Repose.  They should be protected and the case should be dismissed.  This is, in my view, an easy case for the Illinois Supreme Court. It cries out for review.”

Edward X. Clinton, Jr.

Cabrera v Collazo 2014 NY Slip Op 00622.

This is an opinion of the New York Supreme Court, Appellate Division. The facts were simple. The attorney missed the applicable statute of limitations and the client’s claim was barred. In such cases, the lawyer is liable for legal malpractice if the client can prove that, but for the attorney’s error, he would have won the underlying case.

Here, the lawyer’s estate raised an unusual defense. The attorney defendant passed away before the statute of limitations on the client’s claim ran. The lawyer’s estate is really making this argument: the lawyer passed away while the client’s claim was still viable, therefore, the client could have chosen another lawyer and filed the claim in timely fashion.

The Court correctly rejected the claim:

“Plaintiff is entitled to the inference that Tanzman died as a result of a chronic, terminal illness that he knew, or should have known, presented the immediate risk that his ability to represent his clients’ interests might be impaired (see Yuko Ito v Suzuki, 57 AD3d 205, 207 [1st Dept 2008]). Here, defendants offered no evidence to elaborate on the cause or circumstances surrounding Tanzman’s death. The submitted certificate of death for Tanzman merely states that Tanzman passed away on October 24, 2010 at Memorial Sloan-Kettering Cancer Center. The record suggests that plaintiff had cancer, and that his death may have been foreseeable, but the nature and duration of his illness cannot be determined from the death certificate and defendants’ other submissions”

In other words, if the attorney died a sudden and unexpected death (think of a heart attack or an accident) the attorney’s estate might be able to raise that as a defense. Then the estate would be correct that the attorney’s failure to file did not cause an injury to the client. Here, where the lawyer had cancer, it was the lawyer’s duty to notify the client that there could be a problem and to obtain successor counsel, if needed. Lawyers have fiduciary duties to the clients – those duties are created to protect clients. Here, the Court is correctly holding that the lawyer who is terminally ill has a duty to tell his clients so they can make other plans.

In sum, this is a thoughtful opinion that considers the issue in some depth and provides guidance for the future.

Edward X. Clinton, Jr.

800 SOUTH WELLS COMMERCIAL, LLC v. HORWOOD MARCUS AND BERK CHARTERED, Ill: Appellate Court, 1st Dist., 4th Div. 2013 – Google Scholar.

Plaintiff alleged that Horwood Marcus & Berk (HMB) aided and abetted a breach of fiduciary duty by Nicholas Gouletas and John Cadden.

Legal malpractice is governed by a two-year statute of limitations in Illinois. 735 ILCS 5/13-214.3(b). Breaches of fiduciary duty are governed by a five-year statute of limitations. The question presented was which statute of limitations applies when a lawyer is alleged to have aided and abetted a breach of fiduciary duty. Plaintiff argued that the two-year statute of limitations only applies in legal malpractice cases. The court, relying on the plain language of Section 13-214.3(b) disagreed because the text of the statute does not refer specifically to legal malpractice claims.

The court reasoned as follows:

¶ 13 The two-year statute of limitations in section 13-214.3(b) of the Code provides that it applies to claims “against an attorney arising out of an act or omission in the performance of professional services.” 735 ILCS 5/13-214.3(b) (West 2010). As there is no language in the statute restricting its application to legal malpractice claims or claims brought by an attorney’s client, the plain language of the statute directs that the two-year limitation applies to all claims against an attorney arising out of acts or omissions in the performance of professional services, and not just legal malpractice claims or claims brought against an attorney by a client. Had the legislature intended to restrict the applicability of the statute of limitations to malpractice claims, it could have explicitly done so in the text of the statute as it did when it prohibited the recovery of punitive damages in legal malpractice cases (735 ILCS 5/2-1115 (West 2010)), but chose not to do so in this instance.”

In so holding, the Appellate Court disagreed with a case decided in the Fourth Appellate District, Ganci v. Blauvelt, 294 Ill. App. 3d 508, 515 (1998).