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06/29/95 TERRY LEE GARRETT AND PATRICIA GARRETT v.

June 29, 1995

TERRY LEE GARRETT AND PATRICIA GARRETT, PLAINTIFFS-APPELLEES,
v.
LAWYERS INCORPORATED AND JEFFREY A. BRODY, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Joseph N. Casciato, Judge Presiding.

The Honorable Justice Cahill delivered the opinion of the court: Theis and S.m. O'brien, JJ., concur.

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

Plaintiffs sued defendants for legal malpractice alleging that they had failed to file a lawsuit before the statute of limitations had run. The trial court denied defendant's motion to dismiss, but certified a question for interlocutory appeal under Supreme Court Rule 308. We reverse.

The question is phrased in such a way that we are asked to address the impact of our supreme court's decision in Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 595 N.E.2d 561, 172 Ill. Dec. 200. Plaintiffs' complaint, though alleging a violation of the Structural Work Act, assumes that the two-year statute of limitations for personal injuries set out in section 13-202 of the Code of Civil Procedure applies. Hernon, decided after the complaint was filed in this case, held that the four-year statute of limitations set out in section 13-214 of the Code governed actions under the Structural Work Act. Hernon 149 Ill. 2d 190, 595 N.E.2d 561, 172 Ill. Dec. 200.

At the time Hernon was decided and at the time the alleged malpractice in this case happened, section 13-202 (Ill. Rev. Stat. 1991, ch. 110 par. 13-202) and section 13-214 (Ill. Rev. Stat. 1991, ch. 110 par. 13-214) were both in effect. Until 1985, both sections set out a two-year statute of limitations. But, in September of 1985 section 13-214, applicable to construction accidents, was lengthened to four years.

The thrust of plaintiffs' argument is that after 1985, and beforeHernon, the legal community "historically relied" on a two-year statute of limitations and the defendants' failure to do so amounts to malpractice. We disagree and reverse.

Terry Lee Garrett was injured while working at a construction site on August 17, 1987. Plaintiffs hired defendants to represent them. The plaintiffs later discharged the defendant attorneys more than two years, but less than four years, after the accident. Defendants had never filed suit on behalf of the plaintiffs.

The plaintiffs then hired a second attorney. On April 1, 1991, plaintiffs, through their second attorney, filed an eight count complaint. Count IV alleged legal malpractice against the defendants for failing to file suit before the two-year statute of limitations under 13-202 expired. The remaining counts named Weiland Properties, Inc., Habco Development Co., Inc., De Graf Brothers, Inc., and A. C. Alexander, LTD., (The Structural Work Act Defendants) as defendants and alleged a violation of the Structural Work Act (Ill. Rev. Stat. 1991, ch. 48 par. 60 et seq).

The Structural Work Act Defendants moved to dismiss under section 2-619(5) of the Code of Civil Procedure. They argued that the two-year statute of limitations under section 13-202 of the Code barred plaintiffs' suit as to them. The court agreed and granted a motion to dismiss the Structural Work Act Defendants. Plaintiffs did not appeal this order.

Plaintiffs then filed an amended complaint on December 2, 1992, directed only at their former attorneys. The complaint alleged that defendants were hired to represent plaintiffs before the two-year statue of limitations had run, were not discharged until after the statute had expired, and that the defendants did not file a suit within that two-year period.

Defendants filed a motion to dismiss under section 2-615 and 2-619 of the Code on January 21, 1992. Defendants argued in their 2-619 motion that time remained to file suit under the four-year statute of limitations after they were discharged.

While this matter was pending, plaintiffs filed a petition under section 2-1401 for relief from the earlier dismissal of the Structural Work Act Defendants from their original complaint. The petition was filed before the same judge considering the amended complaint. Plaintiffs cited the recently decided Hernon case in support of their petition that the four-year statute of limitations should have applied to their original complaint. The Structural Work Act Defendants responded with a motion to dismiss the petition. After a hearing, the court denied plaintiffs' motion for relief under 2-1401. Plaintiffs did not appeal this order.

The court then went on to deny the defendant attorneys' motions to dismiss the remaining malpractice count against them. The defendant attorneys filed a motion to reconsider. The court denied that motion and the defendant attorneys filed this interlocutory appeal ...


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