Appeal from the Circuit Court of Lake County. No. 98--L--818 Honorable John R. Goshgarian, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Plaintiffs, Donald and Ida Racquet, sued defendants, Michael S. Grant (Grant) and Michael S. Grant, Ltd., for attorney malpractice. The trial court granted defendants' motion to dismiss the complaint (see 735 ILCS 5/2--619(a)(5) (West 1998)) as barred by the two-year statute of limitations (735 ILCS 5/13--214.3(b) (West 1998)). After the trial court denied plaintiffs' motion to reconsider, they appealed. On appeal, plaintiffs argue that (1) in ruling on their motion to reconsider the dismissal, the trial court erred in striking an affidavit from an attorney they hired after they had employed defendants; and (2) the dismissal was erroneous because defendants did not prove that plaintiffs' suit was untimely. As we agree with plaintiffs' second contention of error, we reverse the dismissal of the complaint and remand the cause.
Plaintiffs filed their complaint on October 20, 1998. The complaint alleged the following facts. On or about August 16, 1995, plaintiffs retained defendants to represent them in a suit brought by Melvin Platenka, plaintiffs' neighbor in Fox Lake, who sought to enjoin plaintiffs from doing certain construction on their land. Through October 1996, defendants were professionally responsible for defending plaintiffs in the Platenka suit. Defendants breached their duty of care to plaintiffs by failing to advise plaintiffs adequately of Platenka's claims and the remedies he sought; failing to do sufficient pretrial discovery or preparation of witnesses; failing to prepare Donald Racquet for a deposition; inadequately advising plaintiffs of the legal effect of the trial court's denial of Platenka's request for a temporary restraining order; advising plaintiffs they could proceed with the modifications to their property despite the pending litigation; failing to raise necessary defenses to Platenka's suit; failing to appeal the judgment despite assuring plaintiffs that they would do so; failing to file a timely cross-appeal after Platenka appealed; and not advising plaintiffs to seek a variance for their property.
The complaint also alleged that, on learning that Platenka had appealed, plaintiffs consulted attorney Thut, who told them that the time for them to appeal or cross-appeal had expired. Thut represented plaintiffs on Platenka's appeal. On May 20, 1997, the appellate court ruled in the case. In October 1997, the supreme court denied plaintiffs leave to appeal in the Platenka case. Plaintiffs alleged that, as a result of defendants' malpractice, the value of their property fell, they had to spend heavily to alter the property, they became liable for Platenka's attorney fees at trial and on appeal, and the title to their property was unnecessarily clouded.
Defendants moved to dismiss the complaint as time-barred. Defendants asserted that plaintiffs' cause of action accrued no later than September 8, 1996, and that plaintiffs knew or should have known of defendant's purported negligence by October 3, 1996. Defendants' supporting memorandum and exhibits summarized the Platenka litigation as follows.
Platenka's suit sought injunctive relief and attorney fees. On August 17, 1995, the circuit court denied Platenka a preliminary injunction against plaintiffs' intended renovations but stated that plaintiffs would proceed with the work at their own risk. On March 25, 1996, after a bench trial, the trial court found plaintiffs liable on some of Platenka's allegations and ordered plaintiffs to bring their property into compliance with the village zoning ordinance. On August 8, 1996, the trial court issued a final judgment denying Platenka's motion to reconsider and awarding Platenka attorney fees and costs. On August 28, 1996, Platenka appealed. On May 20, 1997, this court affirmed in part, reversed in part, and remanded the cause. Platenka v. Racquet, No. 2--96--1027 (1997)(unpublished order under Supreme Court Rule 23). On October 3, 1996, defendants received a letter from Thut stating that he now represented plaintiffs and asking if defendants had filed a cross-appeal in the Platenka suit. Grant called Thut and told him no cross-appeal had been filed.
Defendants attached Grant's affidavit, in which he stated the following. Plaintiffs retained him and his firm through August 8, 1996, when the circuit court entered its final opinion on the merits in the Platenka suit, which sought to enjoin construction and remodeling plaintiffs were doing on their property. On August 20, 1996, Grant told plaintiffs he did not advise taking an appeal, and plaintiffs replied that they would talk to another attorney about that matter. On August 29, 1996, Grant received a copy of Platenka's notice of appeal; the copy indicated that the notice had been filed. On September 4, 1996, Grant told plaintiffs that Platenka had filed a notice of appeal. On October 3, 1996, Grant received a letter dated October 2, 1996, from Thut (the motion to dismiss attached a copy of the letter); the same day, Grant telephoned Thut and told him no notice of cross-appeal had been filed in the Platenka suit. Grant understood that his receipt of Thut's letter on October 3, 1996, terminated his representation of plaintiffs. Since receiving the letter, he had had no further contact with them.
Defendants argued that, insofar as plaintiffs asserted that defendants committed malpractice in trying the Platenka suit, plaintiffs were injured no later than August 8, 1996, the date of the circuit court's final judgment. Defendants asserted further that any injury from defendants' failure to file a cross-appeal would have occurred no later than September 9, 1996, the last day to file a cross-appeal (see 155 Ill. 2d R. 303(a)), and that plaintiffs knew or should have known of any such injury no later than October 3, 1996, when Grant told Thut no cross-appeal had been filed. Thus, defendants reasoned, plaintiffs' suit, filed October 20, 1998, was at least 17 days too late.
Plaintiffs' response to the motion included an affidavit of Ida Racquet stating the following. After the trial judge issued his ruling, Grant advised her that he would take care of filing an appeal; he told her "not to worry about it." Early in October 1996, plaintiffs consulted with Thut, asking him to represent them and to tell them the status of the appeal. On or about November 20, 1996, plaintiffs received a letter from Thut. Late in November or early in December 1996, plaintiffs asked Thut about the status of the case. Thut told plaintiffs that Grant had not filed any appeal or cross-appeal on plaintiffs' behalf. Thut added that, having reviewed "our [plaintiffs'] file," he believed Grant failed to raise several issues at the trial and that defendants may have committed malpractice.
From Ida Racquet's affidavit and the other matters of record, plaintiffs concluded that the limitations period did not start any earlier than November 20, 1996, when Thut told plaintiffs that defendants had filed no appeal or cross-appeal in the Platenka suit. Also, they claimed that it was not until the conversation with Thut in November or December 1996 that plaintiffs, who lacked legal expertise, could have been on notice that defendants may have committed malpractice in trying the Platenka suit.
In reply, defendants argued that, more than two years before plaintiffs sued, they were on notice that they might have causes of action arising from defendants' alleged trial malpractice and from defendants' failure to appeal or cross-appeal. Defendants asserted that the adverse judgment itself put plaintiffs on notice of the purported trial malpractice. Defendants also observed that, by October 3, 1996, Thut actually knew that defendants had not filed an appeal or cross-appeal, and they asserted that this knowledge could be imputed to plaintiffs, with the result that plaintiffs discovered their possible cause of action more than two years before they filed the complaint.
The trial court granted defendants' motion to dismiss the complaint. Plaintiffs moved to reconsider the judgment, arguing that the trial court erred in holding that, because Thut knew of the alleged malpractice by October 3, 1996, plaintiffs could be charged with knowledge of their cause of action by that same date. Plaintiffs relied in part on Ida Racquet's statement in her affidavit that Thut did not inform her of the status of the appeal until well after October 3, 1996. Also, plaintiffs sought to introduce an affidavit from Thut. Thut's affidavit states that he first met with plaintiffs on September 30, 1996, when he was advised that Platenka had filed an appeal. Also, according to Thut, on October 2, 1996, he asked Grant whether Grant had filed a cross-appeal. However, contrary to Grant's affidavit, Thut averred that Grant waited until October 30, 1996, to tell Thut that defendants had not filed an appeal or cross-appeal on plaintiffs' behalf. Also, Thut stated, he was not able to receive the record in the Platenka case until December 15, 1996, and only after he reviewed the record could he have discovered that defendants may have committed malpractice during the trial.
Defendants moved to strike Thut's affidavit because plaintiffs had not shown that the information in it was unavailable when defendants' motion to dismiss was pending. The trial court struck Thut's affidavit and denied plaintiffs' motion to reconsider. Plaintiffs filed a timely notice of appeal.
On appeal, plaintiffs argue that (1) the trial court erred in striking Thut's affidavit; and (2) the dismissal of the complaint was improper because defendants did not establish that the complaint was untimely. As we agree with plaintiffs' ...