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McIntosh v. Cueto

June 28, 2001

MICHELLE MCINTOSH AND ELAINE DINGES, PLAINTIFFS-APPELLANTS,
v.
AMIEL CUETO, INDIVIDUALLY AND AS AN AGENT FOR CUETO, DALEY, WILLIAMS, MOORE & CUETO, LTD., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of St. Clair County. No. 98-L-999A Honorable Randall A. Bono, Judge, presiding.

Justices: Honorable Terrence J. Hopkins, J.; Honorable Gordon E. Maag, J.; Honorable Philip J. Rarick, J. Concur

 The opinion of the court was delivered by: Justice Hopkins

Not Released For Publication

MICHELLE MCINTOSH AND ELAINE DINGES, PLAINTIFFS-APPELLANTS,
v.
AMIEL CUETO, INDIVIDUALLY AND AS AN AGENT FOR CUETO, DALEY, WILLIAMS, MOORE & CUETO, LTD., DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of St. Clair County. No. 98-L-999A Honorable Randall A. Bono, Judge, presiding.

Attorney for Appellants Patricia A. Zimmer, George Ripplinger & Associates, 2215 West Main, Belleville, IL 62226 Attorney for Appellees Joseph B. McDonnell, Greensfelder, Hemker & Gale, 33 Bronze Pointe, Belleville, IL 62226

Justices: Honorable Terrence J. Hopkins, J.; Honorable Gordon E. Maag, J.; Honorable Philip J. Rarick, J. Concur

 The opinion of the court was delivered by: Justice Hopkins

Michelle McIntosh and Elaine Dinges (formerly Elaine McIntosh) (collectively, plaintiffs) appeal from the trial court's grant of summary judgment in favor of Amiel Cueto and his law firm, Cueto, Daley, Williams, Moore & Cueto, Ltd. (collectively, defendants). Plaintiffs claim that defendants are guilty of legal malpractice for having allowed the statute of limitations on plaintiffs' medical malpractice claim to run without filing a complaint. Plaintiffs argue that even though they filed their legal malpractice case beyond the legal malpractice statute of limitations (735 ILCS 5/13-212 (West 1998)), defendants should be estopped from using that statute of limitations as a defense, because defendants are guilty of fraudulently concealing the fact that a medical malpractice action was never filed. We affirm the trial court because plaintiffs never pled equitable estoppel or fraudulent concealment and they did not request leave of court to amend their pleadings.

FACTS

On November 20, 1998, plaintiffs filed a complaint against defendants. In count I of that complaint, Michelle alleged that she was born on February 3, 1970, and that Elaine was her mother. Count I alleged, "As a result of negligent acts on the part of one or more medical care providers during the course of [her] birth, she suffers from impairment in her hearing, schizophrenia, and other disabilities." Count I also alleged that a valid cause of action arose on behalf of Michelle due to the problems surrounding her birth.

Michelle further alleged that on June 6, 1987, she and her mother entered into a contract with Cueto, whereby Cueto agreed to represent Elaine on behalf of Michelle in the medical malpractice case. Michelle alleged that Cueto breached his duty to her by failing to adequately investigate her medical malpractice claim, by failing to seek the advice of a physician, by failing to file a medical malpractice lawsuit on her behalf, and by failing to inform her of his inaction in time for her to obtain other counsel. Michelle alleged that as a proximate result of Cueto's negligence, Michelle's medical malpractice claim was "forever barred, leaving her without just compensation."

Count II of the complaint makes basically the same allegations as count I but is on behalf of Elaine as the plaintiff rather than Michelle. Count I does not allege a separate injury incurred by Elaine personally.

Count I continues with additional allegations that are not contained in count II. Count I alleges that on September 14, 1993, and again on November 29, 1993, Elaine wrote to Cueto, "attempting to get information regarding the status of her case"; that Cueto failed to respond to either letter; that he continued to maintain a file on plaintiffs' case but did not perform any work on their behalf after January 27, 1988; and that Michelle failed to discover ...


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