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Sorenson v. Law Offices of Theordore Poehlmann

February 19, 2002

JOHN M. SORENSON, PLAINTIFF-APPELLANT,
v.
THE LAW OFFICES OF THEODORE POEHLMANN AND THEODORE POEHLMANN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 00-L-134 Honorable John R. Goshgarian, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

Released for publication March 29, 2002.

JOHN M. SORENSON, PLAINTIFF-APPELLANT,
v.
THE LAW OFFICES OF THEODORE POEHLMANN AND THEODORE POEHLMANN, DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of Lake County. No. 00-L-134 Honorable John R. Goshgarian, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

PUBLISHED

 Plaintiff, John M. Sorenson, appeals from an order of the circuit court of Lake County dismissing his lawsuit against defendants, Theodore Poehlmann and the Law of Offices of Theodore Poehlmann, pursuant to section 2--619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2--619(a)(5) (West 2000)) on the basis that the lawsuit was barred by the statute of repose for legal malpractice actions (735 ILCS 5/13--214.3 (West 1994)). Plaintiff contends that the trial court erred in ruling that the repose period started to run at the time of defendant's alleged acts and omissions, because the injury they caused only occurred years later. We affirm.

Plaintiff filed his original complaint on February 18, 2000, and an amended complaint on May 31, 2000. Plaintiff alleged that in 1985 he was engaged to Rosemary Fulgenzi and he retained defendants to prepare an antenuptial agreement. No written retainer agreement was prepared, but plaintiff alleged that it was an express condition of his oral agreement with defendants that the antenuptial agreement would be determined to be enforceable. Plaintiff alleged that due to various acts and omissions by defendants, however, the agreement was not enforceable.

Plaintiff and Fulgenzi wed in 1985. An action to dissolve the marriage was initiated in 1994, and Fulgenzi challenged the antenuptial agreement as "unconscionable, vague, ambiguous, unenforceable and invalid." On February 20, 1998, plaintiff entered into a marital settlement agreement and a judgment was entered dissolving his marriage to Fulgenzi. The marital settlement agreement required plaintiff to pay Fulgenzi more than $300,000--substantially more than he would have been obligated to pay if the antenuptial agreement had been valid.

Defendants moved to dismiss on the basis that the lawsuit, filed in 2000, was not commenced within six years after the underlying acts and omissions, which occurred in 1985, and was therefore barred by the statute of repose in section 13--214.3(c) of the Limitations Act (735 ILCS 5/13--214.3(c) (West 1994)). The trial court granted the motion and this appeal followed.

The elements of a cause of action for attorney malpractice are an attorney-client relationship, a duty arising from that relationship, a breach of that duty, and actual damages or injury proximately caused by that breach. Romano v. Morrisroe, 326 Ill. App. 3d 26, 28 (2001) Actual damages are an essential element of the cause of action: with no damages, no cause of action has accrued. Profit Management Development, Inc. v. Jacobson, Brandvik & Anderson, Ltd., 309 Ill. App. 3d 289, 308 (1999). Here, plaintiff argues that although defendants' acts and omissions occurred in 1985, he suffered no actual injury (and hence no cause of action accrued) until February 20, 1998, when he allegedly was forced to settle his dispute with Fulgenzi over the validity of the antenuptial agreement.

Section 13--214.3 of the Limitations Act provides, in pertinent 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) [A]n action described in subsection (b) may not be commenced in any event more than 6 years after the date on ...


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