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Hester v. Diaz

February 06, 2004

[5] CAROLYN HESTER, PLAINTIFF-APPELLANT,
v.
THEODORE DIAZ, DAVID DUGAN, AND DUGAN & DIAZ, P.C., DEFENDANTS-APPELLEES.



[6] Appeal from the Circuit Court of Madison County. No. 02-L-342 Honorable A. A. Matoesian, Judge, presiding.

[7] The opinion of the court was delivered by: Justice Kuehn

[8]  Carolyn Hester appeals from the trial court's July 12, 2002, order dismissing her case on the basis of the running of the statute of limitations and the statute of repose, and she also appeals from the trial court's August 28, 2002, order denying her motion to reconsider the earlier order. We reverse and remand.

[9]  Carolyn Hester (Carolyn) was an employee of Collinsville Unit 10 School District. On November 14, 1990, while working, she fell down a flight of stairs and sustained bodily injuries and damages.

[10]   She retained David Dugan as her attorney on March 14, 1991. The record does not detail if he was a sole practitioner or worked in a firm at the time of this retention. An application for adjustment of claim was filed with the Illinois Industrial Commission on August 2, 1991, by attorney Theodore Diaz of Lakin & Herndon, P.C.

[11]   On August 19, 1993, a stipulation was filed with the Illinois Industrial Commission to substitute Theodore Diaz, and the law firm of Pitts, Dugan & Diaz, P.C., for The Lakin Law Firm as Carolyn's attorneys.

[12]   On October 31, 1994, the case was called for hearing. No one appeared on Carolyn's behalf and the arbitrator dismissed the case for want of prosecution. A notice of this dismissal was mailed to Carolyn's attorneys, the defendants herein, on December 9, 1994. The notice stated, "[U]nless a petition to reinstate is filed with the Industrial Commission within 60 days of receipt of this dismissal, this cause cannot be reopened." A motion to reinstate the case was filed on February 2, 1995. On March 7, 1995, the arbitrator heard the motion to reinstate and continued the motion until December 3, 1996, noting on the order that the "case may be reinstated at trial only."

[13]   On September 20, 1995, attorney Theodore Diaz made a settlement demand, the details of which are not contained within the record. On May 13, 1996, Theodore Diaz received a $10,000 offer to settle from the attorney for the school district. The file contains no reference that this offer was ever conveyed to Carolyn. On September 4, 1996, Collinsville Unit 10 School District filed a petition to strike the motion to reinstate. The motion was denied on October 1, 1996. On November 6, 1996, the school district submitted to Theodore Diaz a reduced $5,000 offer to settle the case.

[14]   Nothing happened on December 3, 1996, which was the date the arbitrator had indicated was the final reinstatement date and the date the trial was supposed to have been held.

[15]   On January 8, 1997, Theodore Diaz conveyed to Carolyn the $5,000 offer to settle the case. By this time, Carolyn resided in Arkansas. She rejected the offer on January 20, 1997. By a letter from attorney Rod Pitts to Carolyn, dated April 13, 2000, we know that Theodore Diaz's secretary reported that Carolyn had frequently called the office for information from October 1997 to January 29, 1999. This secretary spoke with Carolyn on several occasions and also reported that Carolyn had spoken with Theodore Diaz on occasion but that the content of these discussions was unknown. The letter from attorney Rod Pitts was in response to a letter Carolyn had written to the firm. Rod Pitts advised Carolyn to hire an attorney to review this matter.

[16]   Finally, on December 10, 2001, attorney Theodore Diaz and his firm, Dugan & Diaz, P.C., notified Carolyn by letter that her workers' compensation case had been dismissed with prejudice, apologetically stating that they had no "legitimate excuse" for failing to advise her of that fact. Theodore Diaz provided Carolyn with his malpractice insurance company's name and address and his policy number.

[17]   On March 1, 2002, Carolyn filed a legal malpractice case against Theodore Diaz, David Dugan, and Dugan & Diaz, P.C. The complaint alleged malpractice in allowing her case to be dismissed in 1994 and also contained allegations of misrepresentation related to the failure to advise her of the true status of her case.

[18]   On May 28, 2002, the defendants filed a motion to dismiss, arguing that the statute of limitations and the statute of repose began running on October 31, 1994, when the order of dismissal was entered, and that neither the discovery rule nor equitable estoppel was available to expand either statute.

[19]   Carolyn responded on June 13, 2002, and in this response asked the trial court to grant her request to amend her complaint to add the additional facts contained within the April 13, 2000, letter from Rod Pitts. The defendants replied to the response on July 9, 2002.

[20]   The motion to dismiss was argued and granted on July 12, 2002. Carolyn filed a motion to reconsider on July 24, 2002. On August 28, 2002, the ...


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