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12/08/95 SHIRLEY GOODMAN v. HARBOR MARKET

December 8, 1995

SHIRLEY GOODMAN, A/K/A MRS. JULIUS GOODMAN, PLAINTIFF,
v.
HARBOR MARKET, LTD., F/K/A DAHL MARKET, INC., AND RICHARD DAHL, DEFENDANTS. HARBOR MARKET, LTD., F/K/A DAHL MARKET INC., AND RICHARD H. DAHL, THIRD-PARTY PLAINTIFFS-APPELLANTS, V. STUART GOODMAN AND SCHIFF, HARDIN & WAITE, THIRD-PARTY DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Martin Ashman, Judge Presiding.

The Honorable Justice T. O'brien delivered the opinion of the court: Gordon, J., and MC Nulty, J., concur.

The opinion of the court was delivered by: O'brien

JUSTICE T. O'BRIEN delivered the opinion of the court:

This case arises from a legal malpractice action against the law firm of Schiff, Hardin & Waite and one of its attorneys, Stuart Goodman. At issue is whether the lawsuit is barred under section 13-214.3 of the Code of Civil Procedure (735 ILCS 5/13-214.3 (West 1992) which contains a two year statute of limitation and a six year statute of repose. For reasons which follow, we hold that the suit is not barred as a matter of law, reverse the dismissal of the circuit court, and remand.

The alleged malpractice giving rise to this appeal involved a promissory note executed on April 29, 1985 between Shirley and Julius Goodman and their son-in-law, Richard Dahl. The note was drafted by Stuart Goodman, Julius's nephew. Goodman represented both the Goodmans and Dahl at the time of the transaction.

Subsequently, on January 26, 1993, Shirley Goodman instituted suit against Dahl to enforce the note. In turn, Dahl filed a third party action against his former attorneys, Stuart Goodman and the law firm, Schiff, Hardin & Waite (collectively, the attorneys). Dahl filed his suit on November 8, 1993.

The gravamen of Dahl's complaint was that the attorneys' dual representation at the time the note was drafted constituted a conflict of interest. Specifically, Dahl claimed the attorneys did not disclose the possible effects of their simultaneous representation. Moreover, the attorneys did not inform him that certain loan terms were unusual and commercially questionable. Nor did the attorneys suggest alternatives to the loan or recommend that certain oral representations be included in the written agreement. Dahl alleged that he would not have entered into the loan agreement if he had been properly advised by the attorneys.

Relevant to this appeal is Dahl's allegation that he "did not discover" the attorneys' malpractice until he was sued by Shirley. In particular, Dahl submits that he first "discovered" the attorneys' negligence when he was made a party to that lawsuit and "served with summons *** on or about July 1, 1992." *fn1

The attorneys successfully moved to dismiss Dahl's complaint pursuant to section 2-619(a)(5) on the basis that it was time-barred by the six year statute of repose for legal malpractice. (735 ILCS 5/13-214.3 (West 1992).) After granting the dismissal, the circuit court found no lust reason to delay enforcement or appeal of the dismissal. See 134 Ill. 2d R.304(a).

Section 13-214.3(b) provides that

"(b) An action for damages based on tort, *** 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.

(c) *** 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.

***

(f) This section applies to all causes of action accruing on or after its effective date." (735 ILCS 5/13-214 (West 1992).)

The effective date of the statute was January 1, 1991. 735 ILCS 5/13-214.3 (West 1992).

On appeal, Dahl initially maintains that section 13-214.3 does not apply because his cause of action accrued before the statute's effective date, January 1, 1991, and, therefore, his action is controlled by the five year limitation period contained in section 13-205. (Ill. Rev. Stat. 1991, ch. 110, par. 13-205; see e.g., Garcia v. Pinto (1993), 258 Ill. App. 3d 22, 24, 629 N.E.2d 103, ...


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