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Bulter II v. Platt

November 25, 1998

FRANK O. BUTLER II, PLAINTIFF-APPELLANT,
v.
MAYER, BROWN AND PLATT, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Presiding Justice Cahill

Appeal from the Circuit Court of Cook County

Honorable Philip Bronstein, Judge Presiding.

Plaintiff Frank Butler appeals the trial court's dismissal of his legal malpractice suit against defendant Mayer, Brown & Platt under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1996). The trial court ruled that plaintiff's suit was barred by the two-year statute of limitations for claims against attorneys. See 735 ILCS 5/13-214.3(b) (West 1996).

Plaintiff makes two arguments on appeal: (1) the statute of limitations did not begin to run until the appellate court affirmed the adverse judgment against him in the case defendant was hired to try; and (2) even if the statute of limitations began to run when the trial court entered judgment, defendant is estopped from invoking the statute of limitations because of postjudgment reassurances. We find that a question of fact remains about when the statute of limitations began to run and remand for further proceedings.

Plaintiff's verified amended complaint alleges the following. In July 1986, plaintiff and his brother and sister signed an agreement to govern the division of shares they had inherited in six corporations. In a separate shareholder agreement, they created a "put" procedure: each shareholder could require the other shareholders to either purchase the interests of the shareholder who exercised the put or sell the corporation. In April 1989, plaintiff exercised a put for one of the corporations. Plaintiff's brother and sister elected to buy plaintiff's interest, but they failed to do so.

Plaintiff sued his brother and sister to enforce the shareholder agreement. Shortly after a complaint was filed, he hired defendant to represent him in the case. Plaintiff's complaint sought a single remedy: specific performance under the shareholder agreement. The complaint was never amended to add a breach of contract claim for damages. The trial court first granted summary judgment for plaintiff on his right to enforce specific performance of the shareholders' agreement, but set the matter for trial to determine: (1) whether the liability of plaintiff's brother and sister was joint and several; and (2) what the net fair market value of plaintiff's shares was.

Plaintiff alleges that at trial Mayer, Brown and Platt relied on the testimony of only one expert, who had advised the firm that some matters on which he was being asked to testify were outside his expertise.

On January 15, 1993, the trial Judge ruled that plaintiff was not entitled to specific performance because he had failed to prove the net fair market value of the shares by clear and convincing evidence. The trial court opined on the record that, given the heightened standard applicable to specific performance cases, a breach of contract suit, where "clear and convincing" proof of damages is not required, might have been more appropriate. But the court suggested that plaintiff could still seek damages under a breach of contract theory.

Plaintiff then sought leave to amend his complaint to add a breach of contract claim. On February 19, 1993, the trial court granted this motion. Plaintiff's brother and sister moved to reconsider. At a June 3, 1993, hearing on the motion to reconsider, the trial court said that it found it "inexplicable *** why there was not a second count filed for breach of contract in addition to specific performance" in the original complaint and noted that allowing plaintiff to amend would create a "grossly inefficient result" because there had been a lengthy trial on the specific performance count involving the same set of facts. The trial court then vacated the February 19, 1993, order and denied plaintiff leave to amend the complaint. The trial court later awarded attorney fees to plaintiff's sister and entered a final judgment on February 1, 1994. The judgment was appealed and affirmed on September 13, 1995. Butler v. Kent, 275 Ill. App. 3d 217, 655 N.E.2d 1120 (1995).

Plaintiff alleges that he learned of the January 15, 1993, order through the press, before the law firm sent a copy of the trial court's opinion by facsimile. The firm did not tell plaintiff about the Judge's oral comments or give plaintiff a copy of the transcript. Attorneys from the firm called plaintiff within a few days and told plaintiff that the court erred and that he would likely prevail on appeal.

Defendant continued to represent plaintiff on appeal. Plaintiff alleges that he spoke with his attorney at the firm at least six times between January 15, 1993, when specific performance was denied, and the date of the appellate court decision. His attorney repeatedly expressed confidence, orally and in writing, that plaintiff would prevail on appeal. Plaintiff alleges that the firm relayed the same opinion through "friends with whom [the firm] regularly communicated about the case." Plaintiff further alleges that the law firm told plaintiff "he would be unable to obtain the services of any other attorneys to represent him [in the case] because *** the law firm would be able to depict [plaintiff] in a manner which would dissuade other attorneys from agreeing to represent and advise [plaintiff]."

Plaintiff filed his complaint against defendant on March 7, 1997, three years and one month after the final trial court judgment. One year and seven months elapsed between the final judgment of the trial court and the appellate affirmance. We address the lapse of time between the trial court judgment and the appellate affirmance later in this opinion to dispose of plaintiff's claim of estoppel.

Plaintiff's complaint alleges legal malpractice, breach of contract and breach of fiduciary duties. The complaint was later amended. The firm moved to dismiss the verified amended complaint under section 2-619 of the Code of Civil Procedure, arguing that plaintiff's claims were barred by the two-year statute of limitations for claims against attorneys. 735 ILCS 5/13-214.3(b) (West 1996). The trial court granted the motion. The court ruled that plaintiff reasonably should have known that he was injured and that the injury was wrongfully caused when final judgment was entered on February 1, 1994. The trial court also ruled that the firm was not estopped from relying on the statute of limitations because the alleged reassurances were opinions, not intentional misrepresentations of fact.

In ruling on a section 2-619 motion, a court must accept as true all well-pleaded facts in plaintiff's complaint and all inferences that can reasonably be drawn in his favor. Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85, 651 N.E.2d 1132 (1995). Dismissal is proper when there are no genuine issues of material fact and dismissal is proper as a matter of law. See Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. ...


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