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10/04/96 ANDRA P. PALMROS v. JOHN BARCELONA

October 4, 1996

ANDRA P. PALMROS, PLAINTIFF-APPELLANT,
v.
JOHN BARCELONA, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kendall County. No. 94--L--46. Honorable Grant S. Wegner, Judge, Presiding.

As Corrected December 12, 1996. Rehearing Denied December 12, 1996. Released for Publication December 12, 1996.

The Honorable Justice Rathje delivered the opinion of the court: Geiger and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

Plaintiff, Andra Palmros, the widow of Alexander Palmros II (Alexander), sued defendant, attorney John Barcelona, for malpractice in drafting and executing Alexander's will. The trial court dismissed the complaint as time barred (see 735 ILCS 5/2--619(a)(5) (West 1994)) by section 13--214.3 of the Code of Civil Procedure (section 13--214.3) (735 ILCS 5/13--214.3 (West 1994)). On appeal, plaintiff argues that (1) her complaint was timely; and alternatively (2) section 13--214.3 is unconstitutional. We affirm.

Alexander executed his will and an accompanying life insurance trust on August 6, 1992. He died on August 8, 1992, survived by plaintiff and the two adult children of a previous marriage (Palmros children). The will was admitted to probate, and the Palmros children contested it. On August 5, 1994, plaintiff filed this suit.

The complaint alleged the following facts. Defendant drafted and executed the will and the insurance trust, and he undertook to assure that the required legal formalities were followed so that the will and trust would be duly executed. Throughout this process, defendant acted as Alexander's attorney and agent. In employing defendant, Alexander intended that plaintiff receive the bulk of his estate and that the Palmros children receive no gift or inheritance except insofar as required by the settlement agreement incorporated into the 1981 divorce judgment. Defendant owed a duty of care to Alexander, his client, and to plaintiff, the intended beneficiary of the attorney-client relationship, in supervising the drafting and proper execution of the will and the trust. However, defendant breached this duty. As a result, the Palmros children filed two suits contesting the validity of the will and the trust, making plaintiff a defendant in each case. Plaintiff had suffered or would suffer two types of damages (1) the attorney fees she spent to defend the will contests; and (2) any loss that would result if the court ultimately invalidated the will or the trust.

Defendant moved to dismiss the suit. He argued it was untimely under section 13--214.3, which, as then in effect, stated in relevant part:

"(b) 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."

(c) Except as provided in subsection (d), 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.

(d) When the injury caused by the act or omission does not occur until the death of the person for whom the professional services were rendered, the action may be commenced within 2 years after the date of the person's death unless letters of office are issued or the person's will is admitted to probate within that 2 year period, in which case the action must be commenced within the time for filing claims against the estate or a petition contesting the validity of the will of the deceased person, whichever is later, as provided in the Probate Act of 1975 [755 ILCS 5/1--1 et seq. (West 1994)]." (Emphasis added.) 735 ILCS 5/13--214.3 (West 1994).

Defendant asserted (with supporting documentation) that the will was admitted to probate on June 16, 1993, and that public notice had already been given that claims against the estate had to be filed six months from December 10, 1992, the date notice was first given. Under section 8--1 of the Probate Act of 1975 (755 ILCS 5/8--1 (West 1992)), a petition to contest the validity of a will had to be filed within six months of the admission of the will to probate. Thus, according to defendant, section 13--214.3(d) required plaintiff to file her suit by December 16, 1993.

The trial court agreed, dismissed the complaint, and denied plaintiff's motion to reconsider. On appeal, she argues primarily that section 13--214.3(d) does not apply here because the injury for which she seeks redress occurred either before the death of Alexander (in which case the two-year limitation period of section 13--214.3(b) applies) or only after the will was invalidated (in which case the complaint was premature). We disagree. We hold that plaintiff's cause of action accrued when she incurred attorney fees to defend the Palmros children's petition to contest the will. Because her injury occurred after the death of Alexander, section 13--214.3(d)'s special limitation period bars this suit.

Plaintiff has moved to supplement the record on appeal with copies of (a) the Palmros children's petition to contest the will; (b) defendant's motion to dismiss part of a malpractice suit the Palmros children brought against him; and (c) an order dismissing, with leave to amend, one count of the Palmros children's petition contesting the will. The Palmros children's petition is already in the record; in this respect, the motion is moot. The remaining documents were not before the trial court. A reviewing court will not consider evidence not before the trial court. Logan v. Old Enterprise Farms, Ltd., 139 Ill. 2d 229, 237, 151 Ill. Dec. 323, 564 N.E.2d 778 ...


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