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01/03/96 ROBERT B. HITT v. HARVEY B. STEPHENS

January 3, 1996

ROBERT B. HITT, JR., JUDITH H. WELBORN, CHARLOTTE PATTERSON AND KATHARINE BUCKNER, PLAINTIFFS-APPELLANTS,
v.
HARVEY B. STEPHENS, PARTNER, AND BROWN, HAY AND STEPHENS, A PARTNERSHIP, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Sangamon County. No. 96LM0122. Honorable Roger W. Holmes, Judge Presiding.

As Corrected February 24, 1997.

Honorable Rita B. Garman, J., Honorable Frederick S. Green, J. - Concur, Honorable John T. McCullough, J. - Special Concurrence. Justice Garman delivered the opinion of the court.

The opinion of the court was delivered by: Garman

JUSTICE GARMAN delivered the opinion of the court:

Several relatives of J. Brown Hitt and Gladys Hitt, both deceased, have brought this replevin action to recover decedents' estate files from their law firm. The circuit court of Sangamon County granted summary judgment to defendants on the basis that (1) the action was untimely, and (2) the files were protected by the attorney-client privilege. While we find the action was timely, we agree that the attorney-client privilege protects the files, and accordingly affirm.

Plaintiffs are the grandchildren (Katharine Buckner, Robert Hitt, Jr., and Judith Hitt Welborn) and a daughter-in-law (Charlotte Hitt Patterson) of decedents. Another surviving daughter-in-law (Olga Hitt) executed a document allowing Robert Hitt, Jr., to "authorize and consent to all matters pertaining to" the files in question, and a final grandchild (John Hitt) does not appear to have taken any action in support of or against this action. The above persons are decedents' sole heirs, directly or indirectly (through decedents' now-deceased children). Plaintiffs requested Brown, Hay and Stephens' legal files relating to decedents' estates in August 1994, and again in January 1995. When they did not receive them, plaintiffs filed this suit in January 1996 against Harvey Stephens personally. They were granted leave to amend instanter to add the law firm as a defendant.

Defendants filed for summary judgment, based on (1) statute of limitations, and (2) attorney-client privilege. The court granted defendants' motion on both grounds. The last date of any action with respect to J. Brown Hitt's estate was February 16, 1955, and Gladys Hitt's estate was closed in July 1982.

Defendants also argued some degree of estoppel should be accorded another case involving access to the files at issue here. In Hitt v. Patterson, No. 95-L-414 (Cir. Ct. Sangamon Co.), Robert Hitt, Jr., and Judith Welborn brought suit against Charlotte Patterson (all are plaintiffs in the instant case). Harvey Stephens was named as a respondent in discovery. The Sangamon County circuit court initially ordered Stephens to turn over decedents' files, but upon reconsideration held Charlotte Patterson did not have the authority to waive attorney-client privilege with respect thereto, and rescinded the order. There is no indication in the record as to when or how (or whether) this case terminated, and it does not appear the circuit court in the case before us accorded the earlier case any estoppel effect.

I. THE ACTION IS NOT BARRED BY THE STATUTE OF LIMITATIONS

Section 13-205 of the Code of Civil Procedure (Code) (735 ILCS 5/13-205 (West 1994)) provides any action "to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof *** shall be commenced within 5 years next after the cause of action accrued." The only question the parties raise with respect to section 13-205 is when the cause of action accrued. Plaintiffs argue this occurred only when their demand was refused, in August 1994 at the earliest, because only then did defendants' possession become "wrongful." Defendants argue the action accrued when plaintiffs first had the right to demand possession, which was no later than when the last of decedents' estates closed, over 13 years ago.

Generally statutes of limitation begin to run as soon as a person suffers injury or, in the case of contract-based actions, at the time of breach. Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 77, 651 N.E.2d 1132, 1135, 209 Ill. Dec. 684 (1995). However, the discovery rule "'delays the commencement of the relevant statute of limitations until the plaintiff knows or reasonably should know that he has been injured and that his injury was wrongfully caused.'" Hermitage, 166 Ill. 2d at 77, 651 N.E.2d at 1135, quoting Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249, 633 N.E.2d 627, 630, 198 Ill. Dec. 786 (1994). The rule is applied on a case-by-case basis, balancing "'the increase in difficulty of proof which accompanies the passage of time against the hardship to the plaintiff who neither knows nor should have known of the existence of his right to sue.'" Hermitage, 166 Ill. 2d at 78, 651 N.E.2d at 1135, quoting Rozny v. Marnul, 43 Ill. 2d 54, 70, 250 N.E.2d 656, 664 (1969).

We conclude the equities favor application of the discovery rule in this case. Applying the Rozny test, the proof in the replevin action (see 735 ILCS 5/19-104 (West 1994)) does not seem appreciably more difficult now. Plaintiffs, however, had no reason to suspect they would not be granted access to the files on demand, and it would work a substantial hardship on them to hold their claim time-barred.

In an analogous case, Frederickson v. Blumenthal, 271 Ill. App. 3d 738, 648 N.E.2d 1060, 208 Ill. Dec. 138 (1995), a third party deposited money into a savings account in 1963 and asked defendant to hold the money for her under his name. He did so from 1963 until 1988, when the third party died. Defendant refused to release the funds to her estate, and plaintiff as administrator of the estate brought suit for a constructive trust on the funds. Frederickson, 271 Ill. App. 3d at 739-40, 648 N.E.2d at 1061. Defendant argued that the suit was untimely, because it was filed more than 25 years after the money was first deposited in the account. The first district applied the discovery rule and affirmed imposition of the constructive trust, holding that "neither [decedent] nor the plaintiff had any reason to suspect the defendant was acting against their interests until demand was made and refused." Frederickson, 271 Ill. App. 3d at 742-43, 648 N.E.2d at 1063. See also David v. Russo, 91 Ill. App. 3d 1023, 1028, 415 N.E.2d 531, 536-37, 47 Ill. Dec. 526 (1980) (applying the discovery rule in an action to impose a constructive trust on real estate); Town of Warren v. Ball, 341 Mass. 350, 354, 170 N.E.2d 341, 344 (1960) (rejecting a limitations-based defense to a replevin action where possession was initially permissive because a "bailor *** would not ordinarily take steps to assert his rights until there had been a repudiation by the bailee").

Defendants here rely on Meeker v. Summers, 70 Ill. App. 3d 528, 529, 388 N.E.2d 920, 921, 26 Ill. Dec. 919 (1979), which states "if a former owner has a right to recover personal property but fails to initiate a replevin action within 5 years after that right accrues, the statute of limitations bars any later action." This ruling is not inconsistent with our holding the discovery rule is applicable to replevin actions, however, because in Meeker the plaintiff knew or should have known defendant's possession was wrongful more than five years before he brought suit. Plaintiff leased a grain bin to defendant, and the lease provided plaintiff had the right to enter lessee's premises and remove the bin upon breach. Defendant was late with the first payment, which constituted a breach of the lease. The court held plaintiff was ...


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