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Barratt v. Goldberg

April 23, 1998

REA BARRATT, PLAINTIFF-APPELLANT,
v.
JERRY S. GOLDBERG, EVAN JAMES MAMMAS, AND MAMMAS AND GOLDBERG, LTD., A PROFESSIONAL CORPORATION, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY HONORABLE KATHY M. FLANAGAN, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice McNAMARA

In February or March of 1987, plaintiff retained the law firm of Mammas & Goldberg, Ltd., and specifically defendant Jerry S. Goldberg (Goldberg), to represent her in a dissolution of marriage action (84 D 12301) against her former husband. Mammas & Goldberg, Ltd., and Goldberg represented plaintiff up to and including the entry of the judgment for dissolution of marriage in December 1987. The judgment for dissolution of marriage was entered pursuant to a settlement agreement.

On March 11, 1996, plaintiff filed a legal malpractice action against the defendants for negligence and breach of contract. Plaintiff alleged that Goldberg negligently advised her to settle the dissolution of marriage action in December 1987, without conducting adequate discovery or a proper investigation of the value of the marital estate. Goldberg valued the marital estate at $1.9 million, when in fact it was worth approximately $10 million. Plaintiff alleged that as a direct and proximate result of Goldberg's negligence, she was damaged in that she accepted a settlement that was far less than she was entitled to receive under the law. Plaintiff alleged that Goldberg's partner, Evan James Mammas, and the firm, Mammas & Goldberg, Ltd., were vicariously liable for Goldberg's negligence.

In the spring of 1991, plaintiff retained another lawyer to determine whether the 1987 judgment of dissolution entered pursuant to the settlement agreement could be vacated or modified. Plaintiff alleged that it was at this time that she first was advised of and became aware of Goldberg's alleged negligent representation. Plaintiff knew or should have known of her proposed legal malpractice cause of action in the spring of 1991. Plaintiff filed her complaint on March 11, 1996, almost nine years after the allegedly negligent acts and five years after her discovery of them.

The statute of limitations applicable to legal malpractice actions was amended, effective January 1, 1991, to reduce the statute of limitations from five years to two years and to impose a six year statute of repose. 735 ILCS 5/13-214.3 (West 1992). Defendants filed a motion to dismiss plaintiff's complaint, arguing that plaintiff's cause of action was barred by the two year statute of limitations and the six year statute of repose. Plaintiff also argued, although not in her written motion, that her legal malpractice action was not barred because of the extended statute of limitations for fraudulent concealment provided by section 13-215 of the Code of Civil Procedure (the Code)(735 ILCS 5/13-215 (West 1992)). The trial court rejected this argument.

On August 23, 1996, the trial court entered an order granting defendants' motion to dismiss and dismissing all plaintiff's claims and causes of action with prejudice. Plaintiff appeals.

On appeal plaintiff contends: (1) that the trial court erred in applying the two year statute of limitations for legal malpractice actions set forth in section 13-214.3 of the Code (735 ILCS 5/13-214.3 (West 1992)), as the negligent conduct at issue occurred before the effective date of this shortened statute of limitations; (2) the trial court erred in computing the statute of repose from the date of the negligent act or conduct; and (3) the trial court erred in rejecting plaintiff's fraudulent concealment claim without granting leave to amend. For the following reasons, we affirm the trial court's dismissal of plaintiff's cause of action.

Plaintiff first contends that the court erred in applying the newly shortened statute of limitations for legal malpractice claims set forth in section 13-214.3 of the Code (735 ILCS 5/13-214.3 (West 1992)), which became effective January 1, 1991. The last of the alleged negligent conduct occurred in December 1987, when the dissolution judgment was entered. The parties agree that the plaintiff did not discover her injury until the spring of 1991, shortly after the effective date. Plaintiff contends that because the negligent conduct at issue occurred before the effective date of this shortened statute of limitations, the trial court should have applied the statute of limitations in force at the time of the negligent act (five years) or, in the alternative, used the statute of repose to determine timeliness.

Section 13-214.3 of the Code (735 ILCS 5/13-214.3 (West 1996)), provides for a two year statute of limitations and a six year statute of repose for causes of action alleging legal malpractice. It further provides:

"(f) The provisions of Public Act 86-1371 creating this Section apply to all causes of action accruing on or after its effective date." 735 ILCS 5/13- 214.3(f)(West 1996) The effective date was January 1, 1991.

Looking at the plain language of the statute, the question becomes, When did plaintiff's cause of action accrue? If it accrued prior to January 1, 1991, plaintiff is correct and the two year statute of limitations does not apply. If, however, the cause of action accrued after the January 1, 1991, effective date, the two year statute of limitations does apply.

The Illinois Appellate Court has taken different approaches to determining when a cause of action for legal malpractice accrues. One line of cases, illustrated by the first district opinion in Dolce v. Gamberdino, 60 Ill. App. 3d 124, 376 N.E.2d 273 (1978), holds that the action accrues at the time of the negligent act. Another line of cases, illustrated by Tucek v. Grant, 129 Ill. App. 3d 236, 472 N.E,2d 563 (1984), holds that a cause of action for legal malpractice does not accrue until the client discovers or should discover the factors establishing the elements of his cause of action. See also Zelenka v. Krone, 294 Ill. App. 3d 248, 689 N.E.2d 1154 (1997). The first district has recently held that the position taken in Dolce, is no longer viable and that a cause of action for legal malpractice accrues when the plaintiff knows or reasonably should know of his injury and that it was wrongfully caused. Goodman v. Harbor Market, Ltd., 278 Ill. App. 3d 684, 663 N.E.2d 13 (1995); Goran v. Glieberman, 276 Ill. App. 3d 590, 659 N.E.2d 56 (1995).

We reject plaintiff's argument that there are two accrual dates - one when all the elements of the legal malpractice have occurred and one when plaintiff first has knowledge of the cause of action. We find Goodman v. Harbor Market, Ltd., 278 Ill. App. 3d 684, 663 N.E.2d 13 (1995), to be dispositive on the issue of accrual.

In Goodman, the plaintiff alleged a cause of action for legal malpractice which occurred on April 29, 1985, prior to the effective date of section 13-214.3 of the Code. The parties agreed that the plaintiff did not discover his injury until July 2, 1993, well after the effective date. The court held that because section 13-214.3 of the Code applies to causes of action accruing on or after January 1, 1991, and plaintiff's cause of action ...


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