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Petersen v. Wallach

January 25, 2002

LESLEE C. PETERSEN, APPELLEE
v.
STANLEY J. WALLACH, APPELLANT



The opinion of the court was delivered by: Justice Kilbride

UNPUBLISHED

The sole issue presented by this appeal is whether the exception to the six-year statute of repose for attorney malpractice actions under sections 13-214.3(c) and (d) of the Code of Civil Procedure (the Limitations Act) (735 ILCS 5/13-214.3(c), (d) (West 1994)) applies only in cases where the assets of the deceased pass by way of the Probate Act of 1975 (Probate Act or Act) (755 ILCS 5/11a-1 et seq. (West 1994)). Plaintiff Leslee C. Petersen, the sole beneficiary of her mother's inter vivos trust, brought this action against defendant Stanley J. Wallach, alleging Wallach negligently rendered estate planning advice to her mother. The circuit court of Cook County dismissed the complaint as time-barred.

Petersen appealed and the appellate court reversed. 314 Ill. App. 3d 823. We now affirm and hold that section 13-214.3(d) (735 ILCS 5/13-214.3(d) (West 1994)) applies in all attorney malpractice cases when the injury occurs upon the death of the person for whom services were rendered, regardless of the manner used to distribute the decedent's assets.

BACKGROUND

Petersen filed her complaint on November 9, 1998. The complaint alleged that in 1989 Petersen's mother engaged the services of defendant both to handle the administration of her husband's estate and to recommend estate planning advice that would minimize estate taxes. While providing these services, defendant allegedly recommended that plaintiff's mother make substantial taxable inter vivos gifts to plaintiff. In 1990 and 1991, plaintiff's mother made such gifts, totaling approximately $580,000. According to plaintiff, upon her mother's death on November 10, 1996, these gifts were "added back" into her mother's estate for purposes of determining taxes, resulting in an increase of $238,000 in tax liability.

Defendant moved to dismiss plaintiff's complaint as time-barred, alleging that the claim was not initiated within the six-year statute of repose found in section 13-214.3(c). Specifically, defendant argued that the services were rendered between 1989 and 1991 and the suit was not filed until November 9, 1998. In response, plaintiff countered that the section 13-214.3(d) exception to the statute of repose should apply to her claim because she filed suit within two years of her mother's death on November 10, 1996. The provisions of the Limitations Act at issue here provide, in relevant part, as follows:

"(b) An action for damages based on tort, contract, or otherwise (i) 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) Except as provided in subsection (d), 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.

(d) When the injury caused by the act or omission does not occur until the death of the person for whom the professional services were rendered, the action may be commenced within 2 years after the date of the person's death unless letters of office are issued or the person's will is admitted to probate within that 2 year period, in which case the action must be commenced within the time for filing claims against the estate or a petition contesting the validity of the will of the deceased person, whichever is later, as provided in the Probate Act of 1975." 735 ILCS 5/13-214.3 (West 1994). *fn1

Under this statutory framework, the trial court granted defendant's motion to dismiss, specifically relying on Zelenka v. Krone, 294 Ill. App. 3d 248 (1997). In Zelenka, the Appellate Court, Third District, held that the exception to the six-year statute of repose created by section 13-214.3(d) is applicable only when the assets of a deceased are distributed under the Probate Act and not when the assets pass via an inter vivos trust. Zelenka, 294 Ill. App. 3d at 252. The Zelenka court focused on the language in section 13-214.3(d) limiting legal malpractice actions to the time period for filing claims against the estate or to the time period for filing a petition to contest the validity of the will. According to the Zelenka court, that language indicates section 13-214.3(d) applies only to legal malpractice actions related to claims involving assets that pass under the Probate Act and not to claims involving assets passing independent of the Act. Zelenka, 294 Ill. App. 3d at 252.

In the instant case, plaintiff appealed, arguing that the plain language of section 13-214.3(d) indicated that the exception applied to her claim because the section does not draw a distinction between probate and non-probate distributions. Thus, according to plaintiff, her action was timely, even though she did not file it within the six-year statute of repose embodied within section 13-214.3(c) (735 ILCS 5/13-214.3(c) (West 1994)). The Appellate Court, First District, agreed and reversed, stating:

"The primary inquiry in determining whether section 13-214.3(d) is applicable is whether the injury caused by the act or omission occurred upon the death of the person for whom services were rendered, not the manner in which assets were distributed. Accordingly, where any injury caused by an act or omission does not occur until the death of the person for whom professional services were rendered, section 13-214.3(d) is applicable regardless of whether the assets are subject to distribution through probate proceedings, an inter vivos trust, or some other mechanism." 314 Ill. App. 3d at 827.

In order to resolve the conflict between this case and Zelenka, we granted defendant's petition for leave to appeal. 177 Ill. 2d R. 315. On appeal to this court, defendant argues that we should follow Zelenka for three reasons: (1) by tracking the language of the limitations periods applicable under the Probate Act, section 13-214.3(d) indicates that it only applies to claims arising out of the distribution of assets under the Probate Act; (2) the legislative history of section 13-214.3(d) indicates that the General Assembly intended solely to address probate distributions; and (3) application of section 13-214.3(d)'s limitation period to ...


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