Appeal from the Circuit Court of Effingham County. No. 04-L-15 Honorable William R. Todd, Judge, presiding.
The opinion of the court was delivered by: Justice McGLYNN
Rule 23 order filed July 13, 2006; Motion to publish granted August 25, 2006.
On January 3, 1995, First State Bank of Beecher City (First State Bank) filed a claim in the probate proceedings of the estate of Walter L. Carlen, case No. 94-P-61 in the Fourth Judicial Circuit, Effingham County. The claim asserted that First State Bank was entitled to recover the balance of unpaid loans, plus interest, owed by the estate of Walter L. Carlen, deceased. In the above-referenced matter, the estate of Walter L. Carlen was represented by James Richard Myers (Myers) and the law firm of LeFevre, Zeman, Oldfield & Schwarm Law Group, Ltd. (Law Group). The plaintiff herein, David V. Carlen (Carlen), was the coexecutor and a beneficiary of the estate of Walter L. Carlen.
A hearing on First State Bank's claim was held on October 8, 1997. The circuit court, Fourth Judicial Circuit, Effingham County, in case No. 94-P-61, entered an order approving First State Bank's claim on January 9, 1998. A copy of this order was sent to Carlen via certified mail, return receipt requested, on January 15, 1998, by Myers, who advised therein that the right to appeal, if not acted upon, would expire within 30 days of the entry of said order. The return receipt was signed by Carlen on January 20, 1998. A subsequent order was entered by the circuit court on January 27, 1998, which clarified the amount owed by the estate to First State Bank. On March 12, 1999, First State Bank filed a petition to recover assets and discover information pursuant to section 16-1(a) of the Probate Act of 1975 (755 ILCS 5/16- 1(a) (West 1998)). In June 1999, the trial court ruled that First State Bank had made a prima facie showing under the statute. On January 14, 2000, First State Bank filed a motion seeking a judicial lien against the real estate in the Walter L. Carlen Revocable Trust. This motion was granted on February 17, 2000.
On February 7, 2000, Carlen, as trustee of the Walter L. Carlen Revocable Trust, executed quitclaim deeds transferring several pieces of real property to the beneficiaries of the trust. On March 14, 2000, First State Bank filed an action against Carlen and various other trust beneficiaries alleging that the February 7 property transfers violated the Uniform Fraudulent Transfer Act (740 ILCS 160/1 et seq. (West 2000)). Proceedings in that cause led to our decision in First State Bank of Beecher City v. Carlen, No. 5-02-0500 (2003) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)) on November 6, 2003, in which we affirmed the trial court's order granting a summary judgment in favor of First State Bank.
On March 12, 2004, Carlen filed, pro se, a three-count complaint against First State Bank, Myers, and Law Group in the Circuit Court for the Fourth Judicial Circuit, Effingham County, Illinois. Counts I and II pleaded a breach of fiduciary duty against Myers and Law Group. Count III pleaded unjust enrichment, via collusion, against First State Bank, Myers, and Law Group. All the allegations concerning Myers related to him in his capacity as an attorney for the estate of Walter L. Carlen, of which the plaintiff herein was a beneficiary and coexecutor.
On June 21, 2004, Judge Eder construed the complaint to allege legal malpractice in counts I and II and concluded that those counts were barred by the statute of repose (735 ILCS 5/13-214.3(c) (West 2004)). The judge noted that more than six years had elapsed between his January 27, 1998, order and Carlen's March 12, 2004, complaint. Judge Eder also dismissed count III as barred by the statutes of limitation for civil actions. Judge Eder addressed count III as follows:
"[B]ecause the alleged agreement pertains to the defense of Defendant Bank's claim against the Estate in [No.] 94-P-61, the alleged agreement would have had to have occurred on or before January 27, 1998, the date the final Judgment was entered regarding said claim or[,] at the very latest, 30 days later, on February 26, 1998, when the time to file a motion to reconsider or a notice of appeal expired. Consequently, the 5-year statute of limitations would have expired by February 26, 2003, more than a year prior to the filing of the Complaint herein. No allegations have been made by Plaintiff Carlen in his complaint, nor [sic] in his written or oral response to the motion to dismiss, which would extend the 5- year statute of limitations period, either by the statutory discovery rule of [section 13-215 of the Code of Civil Procedure (735 ILCS 5/13-215 (West 2002))] or by the common law discovery rule. Therefore, unless Plaintiff Carlen can and does make such allegations, Count III would be barred by the statute of limitations set forth in [section 13-205 of the Code of Civil Procedure (735 ILCS 5/13-205 (West 2002))]." The trial court granted Carlen 28 days to file an amended complaint. Specifically, the court stated as follows:
"Inasmuch as Plaintiff Carlen is pro se and may not fully understand pleading requirements and the application off [sic] statutes of limitations and repose, it is fair and reasonable to give him an opportunity to amend his Complaint to bring it within the statutory time limitations, if he can do so in good faith."
Carlen's amended complaint was filed on or about December 29, 2004. In his amended complaint, Carlen essentially complained that Myers, in handling the probate proceedings on behalf of the executors of the estate, did not put on an adequate defense to the claims of First State Bank. The plaintiff further alleged that First State Bank and Myers "had to have reached an agreement *** to allow judgment to be entered." Carlen sought $100,000 in compensatory damages and $100 million in exemplary damages. Count I of the amended complaint pleaded a breach of the duty of care with respect to Myers. Count II pleaded a breach of the duty of care against Myers and Law Group. Count III pleaded constructive fraud against Myers. Count IV pleaded constructive fraud with respect to Myers and Law Group. Count V pleaded collusion to defraud against First State Bank, Myers, and Law Group. Carlen conceded that the material allegations of the amended complaint were essentially identical to the allegations of the original complaint, by admitting that "basically there is no difference in them." The only new allegation contained in the amended complaint was the allegation that Carlen first discovered he was damaged on April 17, 2002, when a court order was issued in case No. 00-CH-6, Fourth Judicial Circuit, Effingham County, Illinois, with respect to real estate in which Carlen held a beneficial interest. The court order was entered on behalf of First State Bank to satisfy the bank's claims in the estate of Walter L. Carlen, deceased.
On January 7, 2005, Myers and Law Group filed their motion to dismiss and memorandum of law in support, which contended that all the counts of Carlen's amended complaint were subject to the statute of repose set forth in section 13-214.3(c) of the Code of Civil Procedure (Code) (735 ILCS 5/13-214.3(c) (West 2004)). First State Bank filed its motion attacking the amended complaint on January 25, 2005. First State Bank argued that the amended complaint should be dismissed pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 2004)) because the alleged cause of action asserted by Carlen had not been filed within five years and was thus barred by the statute of limitations provided for in section 13-205 of the Code (735 ILCS 5/13- 205 (West 2004)). On May 5, 2005, Judge Todd entered an order dismissing Carlen's amended complaint with prejudice. The basis of Judge Todd's order was that Carlen's amended complaint, in its entirety, was predicated on acts or omissions of an attorney in the performance of professional services, which were subject to the statute of repose and thus time-barred. Judge Todd acknowledged that Carlen's amended complaint attempted to plead the discovery rule, but he determined the discovery rule to be inapplicable to the statute of repose. Judge Todd also rejected Carlen's assertion that the statute of repose was tolled because of the concealment of an alleged agreement involving Myers, Law Group, and First State Bank to permit a judgment to be ...