Articles Posted in Statute of Limitations Defense

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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 This unpublished decision, Godbold v. Karlin & Fleisher, LLC, 2014 IL App (1st) 131523-U, illustrates a malpractice trap contained in Illinois law.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

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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?

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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).

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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.

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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.

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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.

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Steinmetz v. WOLGAMOT, Ill: Appellate Court, 1st Dist., 1st Div. 2013 – Google Scholar.

In 1997, Dr. Steinmetz enrolled in a program known as AEGIS, which the defendants informed him would protect his assets and reduce his tax liabilities. The IRS disagreed and sent Dr. Steinmetz a deficiency notice on December 31, 1999. Years later the doctor sued the promoters of the tax shelter for fraud and his lawyer for legal malpractice.

The trial court granted the lawyer’s motion for summary judgment and the appellate court affirmed. In Illinois, the discovery rule applies. The plaintiff must bring his case within two years of the discovery of the legal malpractice. Here, the plaintiff claimed that he was unaware of the problem for many years (while his tax controversy with the IRS was being resolved). The Court disagreed. It held that the statute of limitations was triggered on December 31, 1999, when he received the Notice of Deficiency from the IRS. Because the doctor did not bring his case until December 2005, his claim was barred.

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VALUKAS v. BOTTI MARINACCIO, LTD, Dist. Court, ND Illinois 2013 – Google Scholar.

This is a decision dismissing a divorce malpractice claim on statute of limitations grounds. The plaintiff, James Valukas, hired the defendant law firm to represent him in his divorce. Valukas claimed that the law firm negligently drafted a marital settlement agreement, allowing his ex-wife to make a claim for a portion of the payout on certain stock options.

Defendant raised a statute of repose defense, arguing that the alleged error occurred outside of the limitations period. The statute of repose bars any claim against an attorney that occurred more than 6 years prior to the filing of the lawsuit.

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O’KELLYN v. Dawson, 2013 PA Super 25 – Pa: Superior Court 2013 – Google Scholar.

This is a case where a lawyer was accused of legal malpractice for failing to properly document a settlement of a divorce case. The settlement related to an award of maintenance. The parties agreed on a certain amount. The lawyer did not draft up the papers and obtain the signature of the other spouse. As a result, the court entered a maintenance award that was substantially greater than the agreed upon amount.

The client was unhappy because he was required to pay far more maintenance than he agreed to pay. He sued the lawyer and, after a jury trial, obtained an award of damages in the amount of $100,363.64.

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Osborne v. Keeney, Ky: Supreme Court 2012 – Google Scholar.

This is a legal malpractice case in which the plaintiff alleged that her lawyer failed to file a lawsuit on time and missed the applicable statute of limitations.  The Kentucky Supreme Court upheld the claim and addressed other issues as well.  The court held that punitive damages are not recoverable against an attorney in a legal malpractice case.

The opinion reaffirms that the plaintiff in a legal malpractice case must prove a case within a case.  The court set forth the method for proving the case within a case requirement:

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