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Becky Koczor and Daniel Koczor v. Gregory P. Melnyk

January 28, 2011


Appeal from the Circuit Court of Cook County Honorable Barbara McDonald, Judge Presiding. 09 L 1778

The opinion of the court was delivered by: Justice McBRIDE

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Garcia and Justice Cahill concurred in the judgment and opinion.


In February 2009, plaintiffs Becky Koczor and Daniel Koczor filed a complaint for legal malpractice against defendant Gregory P. Melnyk for alleged malpractice arising out of a real estate transaction from November 1997. Defendant filed a motion for summary judgment in the trial court, arguing that the statute of repose barred plaintiffs' cause of action. The trial court granted defendant's summary judgment motion and denied plaintiffs' oral request to amend their complaint. The trial court later denied plaintiffs' motion to reconsider these rulings.

Plaintiffs appeal, arguing that the trial court erred in (1) granting defendant's motion for summary judgment because the doctrine of equitable estoppel bars the applicability of the statute of repose; and (2) denying plaintiffs' motion to reconsider because the trial court misapplied the law and plaintiffs' proposed amended complaint cured any deficiencies.

In February 2009, plaintiffs filed their complaint for legal malpractice in the trial court. Their complaint alleged the following facts.

In October 1997, plaintiffs retained defendant to represent them in the purchase of two contiguous parcels of property in Willow Springs, Illinois. Specifically, defendant handled the closing of the real estate purchase. Plaintiffs alleged that defendant "assured [plaintiffs] that he would record the deeds with the Cook County Recorder of Deeds." Plaintiffs "reasonably relied" on defendant's assurances that the required steps would be followed to record the deeds.

In 2007, plaintiffs decided to build a new house on the lots and expended significant sums in preparation. In November 2007, plaintiffs discovered that one of the parcels of land purchased in 1997 had not been recorded in their names. Plaintiffs contacted defendant about this discovery and defendant promised to investigate. Plaintiffs contacted defendant several times in late 2007 about this matter, but defendant stated that he was investigating the situation and told them he was unable to access the necessary records or he needed time to go to the Cook County recorder's office to retrieve the documents. In December 2007, plaintiffs contacted the recorder's office and were told that they could obtain a judicial deed which would allow them to file a deed in their name. They attempted to contact defendant to seek a judicial deed, but defendant did not return their calls. When they reached defendant, he informed them that he could not find a judge to issue the judicial deed and the county made a mistake.

In January 2008, plaintiffs retained a new attorney. Defendant "admitted to the attorney that he failed to take the steps necessary to record the deed." In a letter dated February 5, 2008, defendant stated that he " 'inadvertently did not send out the required notice at the end of the redemption period and the deed was never issued.' "

Plaintiffs alleged that defendant's failure to properly notice the sale and record the deed caused them significant damage, including costs for a new attorney, monies expended in preparation for building their new house, and an increased cost of building the home if plaintiffs were able to secure a deed for the property. If plaintiffs are unable to take title to the property at issue, they will be forced to spend additional funds to purchase another suitable parcel of land.

Plaintiffs further alleged that defendant's conduct concerning plaintiffs and their property failed to meet the standard of care for lawyers in the community and, but for defendant's negligence, plaintiffs would have good title to their property. Plaintiffs claimed that as a direct and proximate result of defendant's negligence, they were damaged in an amount in excess of $100,000.

In May 2009, defendant filed his answer to the legal malpractice complaint and raised an affirmative defense that the statute of limitations and repose in section 13-214.3 of the Code of Civil Procedure (735 ILCS 5/13-214.3 (West 2008)) barred plaintiffs' complaint because under the statute of limitations, plaintiffs had actual or constructive knowledge of the acts and events for more than two years prior to the filing of the complaint, and under the statute of repose, the acts and events occurred more than six years prior to the filing date of the complaint.

In plaintiffs' answer to defendant's first set of interrogatories, plaintiffs provided the following additional information. On October 18, 1997, they purchased the parcels from Shoreline Tax Investments (Shoreline), which Shoreline had purchased on January 14, 1997, in a tax sale. Plaintiffs also stated "[u]pon learning that the deeds were not properly recorded, plaintiffs contacted [defendant] on November 7, 1997, and [defendant] indicated verbally that certificates would be issued and the deeds would be recorded." On November 1, 2007, plaintiffs were contacted by Indymac Bank to advise them that the second parcel was not recorded in their names, and the following day, they received a facsimile from Fidelity National Title Insurance Company indicating that one parcel was not in their name. The parcel remained recorded to Bedford Construction Company, Inc.

In November 2009, defendant filed a motion for summary judgment, arguing that statute of repose for legal malpractice is six years, which meant that the statute of repose on plaintiffs' claim expired on January 14, 2007, and accordingly, plaintiffs' complaint was barred when it was filed in February 2009. Specifically, defendant contended the relevant start date was January 14, 1997, when Shoreline purchased the parcel, and under the Property Tax Code (35 ILCS 200/22-40, 22-85 (West 1996)), the latest date that plaintiffs' deed to the parcel could have been recorded was January 14, 2001. Since plaintiffs' alleged legal malpractice is based on defendant's failure to properly file and record their deed to the parcel, the ...

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