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Poullette v. Silverstein

March 21, 2002

SYLVIA POULLETTE, PLAINTIFF-APPELLANT,
v.
IRA SILVERSTEIN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 99 L 9199 Honorable David Donnersberger, Judge Presiding.

The opinion of the court was delivered by: Justice Theis

UNPUBLISHED

Plaintiff, Sylvia Poullette, brought this action against defendant, Ira Silverstein, alleging legal malpractice in the preparation of a will and trust for her mother, Pearl Dopp. The trial court dismissed the complaint as time-barred by section 13-214.3(d) of the Code of Civil Procedure (the Limitations Act). 735 ILCS 5/13-214.3(d)(West 1994). On appeal, plaintiff contends that the circuit court misinterpreted subsection (d) of the statute, and that the statute is unconstitutional as applied by the court. For the following reasons, we affirm.

BACKGROUND

Plaintiff's complaint alleges that Dopp retained defendant to perform certain estate planning services, including the preparation of a will and trust. Defendant drafted an inter vivos revocable trust which Dopp executed on December 13, 1994. Under the terms of the 1994 trust, plaintiff was to be named as successor trustee upon Dopp's death. The trustee was to make certain distributions of cash and personal property. The remaining residue was to be distributed to plaintiff as beneficiary. The trust was originally funded with only $10.00, which was an insufficient amount to satisfy the purpose of the trust. The complaint further alleges that defendant failed to advise Dopp of the effect of the failure to transfer assets from an earlier trust, and failed to assist Dopp in transferring those assets into the 1994 trust. As a result, plaintiff was deprived of the benefit of receiving the residue of the 1994 trust. The complaint additionally alleges that plaintiff was required to engage other legal counsel to represent and advise her in connection with her attempts to secure the residue of the estate.

Dopp died on August 19, 1997, and her will was admitted to probate on January 9, 1998. Subsequently, on February 10, 1999, plaintiff filed a complaint for reformation of the 1994 trust, and on August 18, 1999, she filed her complaint for professional malpractice against defendant. Thereafter, defendant filed a motion to dismiss the complaint pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5)(West 1998)), arguing that under section 13-214.3(d) of the Limitations Act (735 ILCS 5/13-214.3(d)(West 1994)), her cause of action was untimely because she was required to file her action on or before July 9, 1998, six months after Dopp's will was admitted to probate. Plaintiff responded that her cause of action against defendant had not yet accrued at that time because she had not yet suffered any actual damages, and that her cause of action did not commence until her complaint for reformation was resolved. The trial court granted defendant's motion to dismiss.

ANALYSIS

Plaintiff contends on appeal that the application of section 13- 214.3(d), requiring her to file suit within six months after Dopp's will was admitted to probate, is inconsistent with the plain language of the statute and the legislative intent. The interpretation of a statute is a question of law, subject to de novo review. Petersen v. Wallach, No. 89947, slip op. at 4 (Ill. Jan. 25, 2002). The fundamental principle of statutory construction is to ascertain and give effect to the legislature's intent. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 503-04, 732 N.E.2d 528, 535 (2000). The language of the statute is the most reliable indicator of the legislature's objectives in enacting a particular law. Nottage v. Jeka, 172 Ill. 2d 386, 392, 667 N.E.2d 91, 93 (1996).

The statutory language must be given its plain and ordinary meaning, and, where the language is clear and unambiguous, we must apply the statute without resort to further aids of statutory construction. Petersen, slip op. at 4. The court must not construe a statute to add exceptions or limitations or change the law set forth in the statute so as to depart from the statute's plain meaning. Moreover, words and phrases should not be construed in isolation, but must be interpreted in light of other relevant provisions of the statute. Antunes v. Sookhakitch, 146 Ill. 2d 477, 484, 588 N.E.2d 1111, 1114 (1992).

With these principles in mind, we examine the Limitations Act as applied to legal malpractice claims. The Act provides 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." (Emphasis added.) 735 ILCS 5/13-214.3 (West 1994). *fn1

Thus, generally the legislature provided for a two-year statute of limitation as set forth in subsection (b), and a six-year statute of repose as set forth in subsection (c). Plaintiff maintains that subsection (d) is triggered only in those instances when the six-year repose period has expired and would otherwise bar the plaintiff's claim for legal malpractice. Under her interpretation, because she filed her cause of action on August 18, 1999, prior to the running of the statute of repose as set forth in subsection (c), she maintains that her cause of action is timely. Nothing in the statute conditions the application of subsection (d) on whether the repose period in subsection (c) has expired. Rather, the plain language of subsection (d) provides that it applies to all claims for legal malpractice "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." 735 ILCS 5/13-214.3(d). Accordingly, a party may commence an action against an attorney up to two years after the death of the decedent client. However, if the will is admitted to probate or letters of office are issued within that two year period, the malpractice ...


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