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Fricka v. Bauer

December 07, 1999


The opinion of the court was delivered by: Justice McNULTY

Appeal from the Circuit Court of Cook County Honorable William Maddux, Judge Presiding.

In this case we must decide when the statute of repose period commences for an attorney's allegedly negligent omissions. We hold that the period of repose begins when the attorney charged with malpractice last performs work for the client. Where the work involves tangible documents, the period begins when the attorney delivers his or her final work product to the client, regardless of the continuing duty to correct any defect or omission related to the work product.

The trial court dismissed the complaint at issue here under section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 1996)), for failure to file within the repose period. Accordingly we must assume the truth of all well-pleaded facts stated in the complaint. See Frydman v. Horn Eye Center, Ltd., 286 Ill. App. 3d 853, 858, 676 N.E.2d 1355 (1997).

Plaintiff, Michael Fricka, married Antoinette Fricka in June 1991. Antoinette then was the sole beneficiary of a trust that held title to her home, subject to a mortgage. Michael agreed to spend more than $24,000 to help refinance the loan, and he spent an additional $18,000 on improvements to the home. Antoinette agreed to make Michael a co-owner of the property in exchange for his investment. Before March 3, 1992, when the bank refinanced the mortgage loan, Antoinette signed a document by which the trust transferred title to Michael and Antoinette as owners in joint tenancy.

Title to the property returned to the trust, of which Antoinette remained the sole beneficiary, by deed dated March 20, 1992. The deed named James Bauer as its preparer. Michael alleged that he and Antoinette were Bauer's clients when Bauer "[c]aused [the] conveyance instrument to be prepared," but Bauer never notified him about the deed or advised him of the effect the deed would have on his interest in the home. Documents appended to the complaint showed that the bank sent the unsigned deed to Antoinette on February 12, 1992, for her and Michael to sign after the refinancing conveyed the property to them as joint owners.

Antoinette filed for divorce in 1996. During that litigation Michael learned about the deed, which appeared to eliminate his interest in the home. In the divorce settlement Michael accepted $30,000 in exchange for his investment in the house. He sued the bank, alleging that it participated in Antoinette's forgery of his signature on the deed or that it participated in Antoinette's scheme to obtain his signature on the deed by fraudulently representing it to be a document he needed to sign as part of the refinancing and conveyance to him of a half interest in the property. The lawsuit against the bank is not part of the case on appeal.

On March 18, 1998, Michael filed this lawsuit against defendants Bauer, Bauer's partners, and their law firm, alleging that their negligence caused him to lose all but $30,000 from a 50% interest in the house. Defendant moved to dismiss based on the six-year statute of repose for attorney malpractice. See 735 ILCS 5/13-214.3(c) (West 1996). Michael argued that the repose period for negligence connected to the deed should not begin until the deed's execution date of March 20, 1992. If Bauer had notified Michael of the deed and its import prior to that time, Michael could have avoided the losses for which he sought compensation. The trial court held that the repose period commenced at the latest on February 12, 1992, because defendants must have completed their work before the bank sent the unsigned deed to Antoinette. Michael did not allege that defendants did anything more concerning the deed after that date.

Section 13-214.3 of the Code of Civil Procedure provides:

"(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." 735 ILCS 5/13-214.3 (West 1996).

Subsection (b) establishes the limitations period, while subsection (c) is the statute of repose. Goodman v. Harbor Market, Ltd., 278 Ill. App. 3d 684, 691, 663 N.E.2d 13 (1995).

For medical malpractice, our supreme court found that the repose period:

"'is intended to terminate the possibility of liability after a defined period of time, regardless of a potential plaintiff's lack of knowledge.' [Citation.] Indeed, our legislature enacted this *** outer limit on malpractice liability specifically to curtail the 'long tail' exposure to medical malpractice claims brought about by the advent of the discovery rule. [Citation.] Thus, the statute of repose must be triggered once treatment terminates." Cunningham v. Huffman, 154 Ill. 2d 398, 406, 609 N.E.2d 321 (1993).

By establishing a certain date for termination of actions, the repose period "enables malpractice insurers to predict future liabilities and alleviate their need to maintain loss reserves." Hayes v. Mercy Hospital & Medical ...

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