By Joseph R. Marconi & Brian C. Langs(1)
Johnson & Bell, Ltd.
Chicago
Defense counsel engaged by ISBA Mutual Insurance Company (ISBAMIC)[2] recently obtained a highly favorable interpretation of the repose provision contained within Illinois Code of Civil Procedure, §735 ILCS 5/13-214.3 (legal malpractice) on behalf of one of its insureds. In Snyder v. Heidelberger, 2011 Ill. LEXIS 1097 (Ill. June 16, 2011), the Illinois Supreme Court reversed a Second District Appellate Court decision that had reinstated a plaintiff’s legal malpractice claim originally dismissed by the trial court, per the repose provision in that limitations statute.
Defense counsel engaged by ISBA Mutual Insurance Company (ISBAMIC)[2] recently obtained a highly favorable interpretation of the repose provision contained within Illinois Code of Civil Procedure, §735 ILCS 5/13-214.3 (legal malpractice) on behalf of one of its insureds. In Snyder v. Heidelberger, 2011 Ill. LEXIS 1097 (Ill. June 16, 2011), the Illinois Supreme Court reversed a Second District Appellate Court decision that had reinstated a plaintiff’s legal malpractice claim originally dismissed by the trial court, per the repose provision in that limitations statute.
Under §735 ILCS 5/13-214.3(b), a malpractice action “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.” However, section 214.3(c) provides an outside limit, or repose period, such that an action “may not be commenced in any event more than 6 years after the date on which the act or omission occurred.” In situations involving the representation of a decedent, Section 214.3(d) provides an alternative time frame, such that “When the injury caused by the act or omission does not occur until the death of the [client]…the action may be commenced within 2 years after the date of the person’s death.”[3]
Thus, in cases involving alleged malpractice in the drafting of documents meant to convey or dispose of the decedents’ estate, the application of Subsection (d) “turns on whether the injury occurred upon the death of the client.” Id. at *9. If the injury occurred prior to the decedent’s death, Subsections (b) and (c) apply. Enter Snyder.
In Snyder, plaintiff alleged that her decedent retained Defendant Attorney to draft conveyance documents granting plaintiff, decedent’s wife (“Plaintiff”), a joint tenancy with rights of survivorship in the couple’s residence. Defendant prepared and had recorded a quit claim deed to that effect in May 1997. Unfortunately, the quit claim deed did not effectively create a joint tenancy because the decedent did not actually have title to the property. Rather, decedent merely possessed the beneficial interest in a land trust that was the real owner. In a separate amendment to the land trust executed even earlier, in June 1980, the decedent granted his son (Plaintiff’s stepson, hereinafter “Stepson”) ownership of its beneficial interest upon his death.
The decedent passed on December 26, 2007, over ten years after the defendant attorney’s work. In February 2008, the Stepson sued to evict Plaintiff and take possession of the residence as owner of the land trust’s beneficial interest. In January 2009, Stepson was granted possession of the residence instead of Plaintiff, whose conveyance as joint tenant with right of survivorship was deemed a nullity due to the errant conveyance. Plaintiff then sued the attorney for malpractice and sought a constructive trust to hold the disputed property.
Defendant argued that Plaintiff’s injury occurred as of the time of the original conveyance pursuant to the invalid joint tenancy, more than ten years prior, thus triggering the 6 year repose limitation of Subsection (b). Plaintiff argued that she suffered a distinguishable injury (her dispossession) that did not occur until the decedent’s death, thus triggering application of the exception found in Subsection (d).
Plaintiff conceded, and a part of the Second District Appellate Court (in a divided opinion) agreed, that she had indeed first suffered an injury “when [Defendant Attorney] failed to presently transfer the initial interest in the property…and would be barred by the [6 year] statute of repose because the quitclaim deed was supposed to take effect at the time of its execution.” Snyder v. Heidelberger, 403 Ill. App. 3d 974, 979 (2nd Dist. 2010), (reversed, 2011 Ill. Lexis 1097, supra). However, the majority of the Appellate Court agreed with Plaintiff that she suffered a second successive injury when she was dispossessed of the residence by the Stepson’s unlawful detainer action, and that her suit within two years of that judgment fell inside the exception found in Subsection (d), per Wackrow v. Niemi, 231 Ill. 2nd 418 (2008). Id., at 979.
It is the concept of a “second successive injury” that the Illinois Supreme Court rejected. The Court first distinguished Wackrow by noting that the erroneous conveyance was only meant to take effect after the decedent’s death, and that corrective measures could have been taken before plaintiff incurred any injury whatsoever. Conversely, in Snyder, “The right of survivorship is thus a present interest that is created by the conveyance of the property into joint tenancy. Accordingly, the failure of the deed drafted by [Attorney Defendant] here to create a joint tenancy in [decedent] and Plaintiff caused a present injury that occurred at the time the quitclaim deed was prepared.” Snyder, 2011 Ill. Lexis at *11.
The Court undertook a statutory construction of Subsection (d) and found that the Illinois legislature’s reference to “the injury” meant that it did not intend for the limitations period to run on successive or multiple injuries. Id., at **12-14. Having rejected the “successive injury” rationale, the Court concluded:
The period of repose in a legal malpractice case begins to run on the last date on which the attorney performs the work involved in the alleged negligence [citations omitted] Here, the record shows the last act of defendant’s representation of [decedent] in this matter took place on June 25, 1997, when defendant mailed the original recorded quitclaim deed to [decedent]. Thus, the statute of repose expired several years before Plaintiff filed her malpractice action.
Id., at *14.
Thus, neither the Plaintiff’s failure (reasonable or not) to learn of the injury, nor the fact that her actual injury manifested after the death of the decedent, served to trigger Subsection (d)’s exception to the 6 year repose period.
[1] Joe is a shareholder of Johnson & Bell, Ltd., and the chairman of the business litigation/transaction group and co-chair of the employment group. He appreciates the assistance of Johnson & Bell paralegal, Mike Castellaneta, J.D., in the drafting of this article.
[2] Patricia Argentati, of Mulherin, Rehfeldt & Varchetto, P.C., argued the case at the trial court, the Appellate Court and the Supreme Court.
[3] Though not at issue in Snyder, Section 214.3(d) can actually impose a 6 month limitation period when, “letters of office are issued or the person’s will is admitted to probate within that 2 year period.” Section 214.3(d) incorporates the strict limitation found in the Probate Act of 1975, 755 ILCS 5/8-1(a) (“Within 6 months after the admission to probate of a domestic… any interested person may file a petition …to contest the validity of the will.”)