Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perlstein v. Wolk

May 21, 2004

[5] DEENA PERLSTEIN AND SCOTT SCHNEIDER, PLAINTIFFS-APPELLANTS,
v.
MAURICE WOLK AND ROSS AND HARDIES, DEFENDANTS-APPELLEES.



[6] Appeal from the Circuit Court of Lake County. No. 02-L-297 Honorable Stephen E. Walter, Judge, Presiding.

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

[8]  On January 8, 1998, the plaintiffs, Deena Perlstein and Scott Schneider, filed a complaint in the circuit court of Cook County against the defendants, Maurice Wolk and Ross & Hardies, alleging that the defendants had committed legal malpractice in the preparation of a will for Deena Perlstein's deceased husband, Larry Perlstein. The plaintiffs voluntarily dismissed the case on September 5, 2001, but subsequently refiled their complaint on April 10, 2002, in the circuit court of Lake County. The defendants filed a motion to dismiss the plaintiffs' complaint, alleging that it was not timely filed. On October 1, 2002, the circuit court of Lake County granted the defendants' motion to dismiss. The plaintiffs appeal from that order. We reverse and remand for additional proceedings.

[9]  Larry Perlstein's father, Harris Perlstein, established the Lawrence A. Perlstein Trust (the H.P. Trust) on July 27, 1971. The H.P. Trust provided that, during Larry Perlstein's life, the net income of the trust was to be distributed to Larry Perlstein and his descendants. The H.P. Trust also provided that upon Larry Perlstein's death, the trust property be divided into two parts, Part A and Part B. Part A, consisting of 40% of the trust property, was to be distributed to Larry's spouse and Larry's descendants in such manner "as Larry appoints and directs by Will specifically referring to this power of appointment." The H.P. Trust further provided that "[t]o the extent that Larry does not effectively exercise his power of appointment over any property comprising Part A, such property shall be added to Part B" of the trust property. Part B, consisting of 60% of the trust property, was to be equally divided among Larry's descendants.

[10]   Larry Perlstein died on September 23, 1995, leaving a will dated October 23, 1992, and a codicil dated May 12, 1993. Additionally, Larry Perlstein had executed a Declaration of Trust on January 5, 1988, establishing the L.A.P. Trust. The L.A.P. Trust was subsequently amended and restated on May 17, 1991. The L.A.P. Trust was again amended and restated on July 20, 1994. The foregoing instruments were drafted by the defendant attorney, Maurice Wolk. In his will, Larry Perlstein elected to exercise the power of appointment granted to him in Part A of the H.P. Trust. In the exercise of that power, Larry Perlstein's will directed that all of the assets allocated to Part A of the H.P. Trust be distributed in accordance with the provisions of the L.A.P. Trust. In part, the L.A.P. Trust provided that if Larry Perlstein's wife, Deena Perlstein, survived him, then upon her death, the trustee shall distribute $300,000 to Scott Schneider, Deena Perlstein's son from a previous marriage,.

[11]   Larry Perlstein's will was admitted to probate on October 16, 1995. On January 8, 1996, the attorneys for the trustees of the H.P. Trust rendered an opinion that the trustees should not fund the L.A.P. Trust because the power of appointment granted in the H.P. Trust was not properly exercised in Larry Perlstein's will. Specifically, the attorneys stated that the proposed gift to Schneider exceeded the scope of the power of appointment because the H.P. Trust limited the class of permissible appointees of the assets of the H.P. Trust to Larry Perlstein's surviving spouse and his descendants. Schneider was not in this class. Additionally, the attorneys noted that if the exercise of the power of appointment had granted Deena Perlstein the power to appoint assets from the trust to Schneider, instead of directing an outright distribution to Schneider, the exercise of the power of appointment would have been fully effective. The language of the H.P. Trust directed that if the power of appointment in Part A of the trust was not properly exercised, then Part A of the H.P. Trust should be added to Part B of the H.P. Trust. The H.P. Trust further directed that Part B be distributed only to Larry Perlstein's descendants, thus excluding Deena Perlstein. The plaintiffs learned of this problem with the funding of the L.A.P. Trust on January 26, 1996.

[12]   The plaintiffs originally filed their complaint against the defendants for legal malpractice in the circuit court of Cook County on January 8, 1998. The plaintiffs voluntarily dismissed that case on September 5, 2001, but subsequently refiled their complaint on April 10, 2002, in the circuit court of Lake County. We note that section 13--217 of the Code of Civil Procedure (the Code) (735 ILCS 5/13--217 (West 2002)) permits a plaintiff to refile an action, which has been previously voluntarily dismissed, within one year from the date of dismissal, whether or not the limitations period for bringing such an action has expired. Picciotto v. RGB Riverboat, 323 Ill. App. 3d 708, 709 (2001).

[13]   In their complaint, the plaintiffs alleged that the defendants had committed malpractice in drafting Larry Perlstein's will because the power of appointment exercised in Larry Perlstein's will did not comply with the requirements of the H.P. Trust. This malpractice compromised the validity of the entire exercise of that power and the validity of the L.A.P. Trust. The complaint alleged that, because of the defendants' malpractice, Schneider had suffered a loss of $300,000. The complaint further alleged that, due to the malpractice, Deena Perlstein was forced to enter into an agreement with the descendants of Larry Perlstein to reform his will. The descendants of Larry Perlstein agreed on a reformation of the L.A.P. Trust that recognized partial validity of the exercise of the power of appointment in Larry Perlstein's will in exchange for certain concessions on the part of Deena Perlstein. Those concessions included relinquishment of (1) her position as trustee of the L.A.P. Trust; (2) certain insurance proceeds not involved in these proceedings; (3) a large amount of valuable personal property that she inherited; and (4) the ability to invade the principal of the trust. In addition to these losses, Deena Perlstein alleged that she had become responsible for her own attorney fees and had lost the use of the income from the L.A.P. Trust since Larry Perlstein's death.

[14]   On May 17, 2002, the defendants filed a motion to dismiss the plaintiffs' complaint pursuant to section 2--619(a)(5) of the Code (735 ILCS 5/2--619(a)(5) (West 2002)). The defendants acknowledged that the plaintiffs' Lake County action related back to the date of the original Cook County complaint, filed January 8, 1998. Nonetheless, the defendants argued that the plaintiffs' original complaint had not been timely filed because it had not been filed within six months of Larry Perlstein's will being admitted to probate, which was required by section 8--1(a) of the Probate Act of 1975 (Probate Act) (755 ILCS 5/8--1(a) (West 2002)), or within the time for claims to be filed under section 18--3 of the Probate Act (755 ILCS 5/18--3 (West 2002)). As such, the defendants alleged that the plaintiffs' original complaint was time-barred by section 13--214.3(d) of the Limitations Act. 735 ILCS 5/13--214.3(d) (West 1994).

[15]   On September 18, 2002, the plaintiffs filed an amended response to the defendants' motion to dismiss. In their response, the plaintiffs argued that section 13--214.3(d) of the Limitations Act (735 ILCS 5/ 13-214.3(d) (West1994)) did not apply to their cause of action. The plaintiffs argued that Public Act 89--7, effective March 9, 1995, had repealed section 13--214.3(d) of the Limitations Act. Although the plaintiffs acknowledged that Public Act 89--7 had subsequently been held to be unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), they argued that they had a reasonable period of time after the decision in Best was issued to file their complaint. Because they filed their complaint within three weeks of the Best decision, the plaintiffs argued that they had filed it within a reasonable period. The plaintiffs therefore argued that it was improper to dismiss their complaint based on section 13--214.3(d) of the Limitations Act. 735 ILCS 5/13--214.3(d) (West 2002).

[16]   On October 1, 2002, the trial court granted the defendants' motion to dismiss. The trial court held that, despite the harsh result, the doctrine of void ab initio applied in this case. The trial court determined that pursuant to the doctrine of void ab initio, the result of the Best decision (179 Ill. 2d 367), was that section 13--214.3(d) should be treated as if it had always remained in effect. As such, the trial court dismissed the plaintiffs' complaint with prejudice pursuant to section 2--619(a)(5) of the Code (735 ILCS 5/2--619(a)(5) (West 2002)) as time-barred by section 13--214.3(d) of the Limitations Act (735 ILCS 5/13--214.3(d) (West1994)). Following the denial of their motion to reconsider, the plaintiffs filed a timely notice of appeal.

[17]   On appeal, the plaintiffs argue that the trial court erred in granting the defendants' motion to dismiss their complaint as time-barred pursuant to section 2--619(a)(5) of the Code. 735 ILCS 5/2--619(a)(5) (West 2002). On an appeal from a trial court's involuntary dismissal of a complaint pursuant to section 2--619 of the Code (735 ILCS 5/2--619 (West 2002)), we must determine " 'whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.' " Doyle v. Holy Cross Hospital, 186 Ill. 2d 104, 109-10 (1999), quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993). Our review is de novo. In re Estate of Mayfield, 288 Ill. App. 3d 534, 542 (1997). If a motion to dismiss is filed upon any of the possible bases listed in section 2--619, the party opposing the motion can present "affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect." 735 ILCS 5/2-- 619(c) (West 2002).

[18]   The plaintiffs first contend that because section 13--214.3(d) had recently been revived at the time they filed their complaint, they were entitled to a reasonable period of time following the change in the law to file their complaint. We agree. Section 13--214.3 of the Limitations Act first became effective in 1991 and it provided a two-year limitations period and a six-year repose period for all legal malpractice claims. 735 ILCS 5/13--214.3(b), (c) (West 2002). Section 13--214.3 further provided that when an injury does not occur until the death of the client and the client's will is admitted to probate, an action for malpractice "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(d) (West 1994). We note that in the present case, the injury did not occur until the death of Larry Perlstein, the person for whom the defendants rendered professional services. Because Larry Perlstein's will was admitted to probate, section 13--214.3(d) of the Limitations Act applies to the plaintiffs' claim for legal malpractice. See Poullette v. Silverstein, 328 Ill. App. 3d 791, 796-97 (2002); Witt v. Jones & Jones Law Offices, P.C., 269 Ill. App. 3d 540, 542-43 (1995).

[19]   In March 1995, section 13--214.3 of the Limitations Act was amended as part of Public Act 89--7, the tort reform legislation passed by the Illinois General Assembly. Public Act 89--7 eliminated section 13--214.3(d) from the Limitations Act. As such, the two-year limitations period and six-year repose period applied to all legal malpractice actions, even when the injury occurred on the death of the client and the client's will was admitted to probate. However, on December 18, 1997, the supreme court in Best declared the core provisions of Public Act 89--7 unconstitutional. Best, 179 Ill. 2d at 467. The elimination of section 13--214.3(d) from the Limitations Act was not one of the core provisions of Public Act 89--7. Nonetheless, the court deemed invalid the noncore provisions of Public Act 89--7, which were not directly challenged in that case, on the grounds that they were not severable from the core provisions. Best, 179 Ill. 2d at 471. Accordingly, the court held that Public Act 89--7 was unconstitutional in its entirety. Best, 179 Ill. 2d at 467.

[20]   When a statute is held to be unconstitutional in its entirety, it is void ab initio. People v. Gersch, 135 Ill. 2d 384, 390 (1990). In Gersch, the defendant asserted his right to waive a trial by jury. Gersch, 135 Ill. 2d at 387. However, the trial court denied the defendant's request for a bench trial when the State asserted its statutory right to a jury trial under section 115--1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115--1). Gersch, 135 Ill. 2d at 387-88. Section 115--1 had been amended in July 1987 and January 1988 to provide a list of offenses where a defendant could not waive a jury trial without the State's assent. Gersch, 135 Ill. 2d at 391. A jury trial was held and the defendant was found guilty of murder. Gersch, 135 Ill. 2d at 388. However, the supreme court later held the 1987 and 1988 amendments to section 115--1 to be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.