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12/05/95 RUTH GORAN v. HERBERT GLIEBERMAN

December 5, 1995

RUTH GORAN, PLAINTIFF,
v.
HERBERT GLIEBERMAN, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT (BARRY GREENBURG, JANET HERMANN AND THE LAW FIRM OF GREENBURG AND HERMANN, THIRD PARTY DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County. The Honorable Kathy M. Flanagan, Judge Presiding.

The Honorable Justice DiVITO delivered the opinion of the court: Hartman and Burke, JJ., concur.

The opinion of the court was delivered by: Divito

The Honorable Justice DiVITO delivered the opinion of the court:

At issue in this appeal is whether, pursuant to section 2-619 of the Code of Civil Procedure, the circuit court properly dismissed as time-barred first-party defendant, third-party plaintiff Herbert Glieberman's claim for contribution arising from an underlying legal malpractice cause of action. (735 ILCS 5/2-619 (a)(5)(West 1992).) Our determination of the issue presented is dependent upon when the underlying legal malpractice cause of action accrued. For the reasons that follow, we conclude that the cause of action accrued before the effective date of a new statute affecting the limitations period, and we therefore reverse.

In 1990, first-party plaintiff Ruth Goran was represented by Glieberman in an appeal before this court from an adjudication of marriage dissolution and child custody. Glieberman filed an appellant's brief but then withdrew from the appeal. Goran subsequently hired Barry Greenburg, Janet Hermann, and the law firm of Greenburg & Hermann (together, Greenburg and Hermann) to represent her. Greenburg and Hermann filed a reply brief, gave oral argument and were required by this court to redo Glieberman's brief and the record on appeal to bring them into compliance with court rules. In an opinion released March 4, 1991, Goran lost her appeal. In re Marriage of Kramer (1991), 211 Ill. App. 3d 401, 570 N.E.2d 422, 155 Ill. Dec. 909.

On July 24, 1991, Goran, with Greenburg and Hermann continuing to represent her, filed a legal malpractice claim against Glieberman arising from his purportedly negligent representation. Glieberman filed his complaint for contribution from Greenburg and Hermann on September 30, 1993. The circuit court granted Greenburg and Hermann's motion to dismiss Glieberman's first amended complaint with prejudice under section 2-619 on April 15, 1994. (735 ILCS 5/2-619(a)(5) (West 1992).) On August 8, 1994, the court entered a revised order nunc pro tunc denying Glieberman's motion for reconsideration. This appeal followed.

The purpose of a motion to dismiss under section 2-619 is to dispose of issues of law and easily proved issues of fact at the outset of a case. ( Zedella v. Gibson (1995), 165 Ill. 2d 181, 185, 650 N.E.2d 1000, 209 Ill. Dec. 27.) In ruling on a section 2-619 motion to dismiss, a court may consider pleadings, depositions, and affidavits. ( Zedella, 165 Ill. 2d at 185.) A reviewing court will determine the propriety of the granting of the motion to dismiss de novo. ( Toombs v. City of Champaign (1993), 245 Ill. App. 3d 580, 583, 615 N.E.2d 50, 185 Ill. Dec. 755, appeal denied (1993), 152 Ill. 2d 581, 622 N.E.2d 1229.) The question on appeal is "whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law." Kedzie & 103rd Currency Exchange, Inc. v. Hodge (1993), 156 Ill. 2d 112, 116-17, 619 N.E.2d 732, 189 Ill. Dec. 31.

Glieberman contends that his claim for contribution is subject to a five-year limitations period and that the trial court therefore erred in dismissing his third-party action against Greenburg and Hermann as time-barred.

Where an underlying direct action is pending, an action for contribution is subject to the same statute of limitations that is applicable to the underlying action. ( Caballero v. Rockford Punch Press & Manufacturing Co. (1993), 244 Ill. App. 3d 333, 337, 614 N.E.2d 362, 185 Ill. Dec. 228.) Thus, to decide which statute of limitations is applicable to Glieberman's cause for contribution, we must determine the statute of limitations relevant to Goran's legal malpractice claim. If Goran's cause accrued after January 1, 1991, the pertinent statute of limitations provides in relevant part:

"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." (Ill. Rev. Stat. 1991, ch. 110, par. 13-214.3(b) (now 735 ILCS 5/13-214.3 (b) (West 1992)).)

Because that statute became effective January 1, 1991, if Goran's cause accrued before that date, section 13-205 of the Illinois Code of Civil Procedure provides for a five-year statute of limitations. (Ill. Rev. Stat. 1991, ch. 110, par. 13-205 (now 735 ILCS 5/13-205 (West 1992)).) In short, if Goran's cause accrued prior to January 1, 1991, Glieberman is subject to a five-year limitations period but if Goran's cause accrued after January 1, 1991, he is subject to a two-year limitations period. The five-year limitations period renders the circuit court's section 2-619 dismissal erroneous; the two-year limitations period effectively bars Glieberman's contribution action.

The elements of a claim for legal malpractice are: (1) the existence of an attorney-client relationship, (2) a breach of a duty arising from that relationship, (3) causation, and (4) damages. Belden v. Emmerman (1990), 203 Ill. App. 3d 265, 268, 560 N.E.2d 1180, 148 Ill. Dec. 583, appeal denied (1991), 136 Ill. 2d 541, 567 N.E.2d 328.

The appellate districts have issued different opinions regarding when a cause of action for legal malpractice accrues. The first district's position, that a cause of action for legal malpractice accrues when the attorney breaches his duty, stems from Dolce v. Gamberdino (1978), 60 Ill. App. 3d 124, 376 N.E.2d 273, 17 Ill. Dec. 274. The second and fourth districts have taken the position that the cause of action does not accrue until the client discovers, or should discover, the elements of his cause of action. Tucek v. Grant (1984), 129 Ill. App. 3d 236, 240, 472 N.E.2d 563, 84 Ill. Dec. 603; Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill. App. 3d 455, 304 N.E.2d 677.

Tucek and Kohler are predicated upon application of the "discovery rule." That rule, which is used to mitigate the harsh effects of a literal application of a statute of limitations, postpones the running of the limitations period until the injured party knows or reasonably should know of his injury and that the injury was wrongfully caused. ( Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414-15, 430 N.E.2d 976, 58 Ill. Dec. 725.) Although the court in Dolce recognized the applicability of the discovery rule, it limited its use to those occasions "when the discovery occurs after the statute of limitations has run or when discovery occurs ...


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