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Lisa Pugsley and Lori Dunn v. James E. Tueth

February 9, 2012

LISA PUGSLEY AND LORI DUNN,
PLAINTIFFS,
AND JERROLD H. STOCKS, JOSEPH R. WETZEL, AND
WINTERS, FEATHERSTUN, GAUMER, POSTLEWAIT, STOCKS & FLYNN, ON BEHALF OF LISA PUGSLEY AND LORI DUNN, INTERVENORS-APPELLANTS,
v.
JAMES E. TUETH,
DEFENDANT-APPELLEE.



Appeal from Circuit Court of Piatt County No. 09L3 Honorable John P. Shonkwiler, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

JUSTICE APPLETON delivered the judgment of the court, with opinion. Justice Knecht concurred with the judgment and opinion.

Justice Cook specially concurred, with opinion.

OPINION

¶ 1 Intervenors, Jerrold H. Stocks, Joseph R. Wetzel, and Winters, Featherstun, Gaumer, Postlewait, Stocks & Flynn, appeal the circuit court's order granting defendant James E. Tueth's motion to dismiss plaintiffs' complaint on statute of limitations grounds. Plaintiffs, Lisa Pugsley and Lori Dunn, filed suit against Tueth, an attorney, for legal malpractice, alleging Tueth failed to convey certain real estate to plaintiffs from their mother, Tueth's client. Attorneys Stocks and Wetzel, who are attorneys with the Winters, Featherstun law firm, initially represented plaintiffs in their lawsuit against Tueth, but withdrew from representation when it appeared that plaintiffs' interests were in conflict with the firm's. Stocks and Wetzel then moved to intervene when plaintiffs notified them they would be the subject of a legal-malpractice lawsuit for not timely filing the lawsuit against Tueth. The intervenors' position is that plaintiffs' lawsuit was timely against Tueth. We agree with the intervenors' position and, accordingly, reverse the court's order dismissing the lawsuit and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 In February 2009, plaintiffs, while represented by attorneys Stocks and Wetzel of the Winters, Featherstun firm, filed a three-count complaint against Tueth, alleging legal malpractice, each of the three counts addressing a separate parcel of real estate. In the complaint, plaintiffs alleged that on March 7, 2007, their mother, Yvonne Haynes, who owned real estate in Macon County, met with her attorney, Tueth. Yvonne's real estate consisted of three tracts: 40 acres of farmland (referred to as "the back 40"); a second parcel (referred to as the "front tract"); and a parcel referred to as "the homestead." Yvonne individually owned the back 40 in fee simple. She and her husband, Verne Haynes, owned the other two tracts in joint tenancy.

¶ 4 At the March 2007 meeting, Yvonne instructed Tueth to sever the joint tenancies and "deed the farm to the girls," referring to plaintiffs. In response, Tueth advised Yvonne that her will would "take care of it." Tueth did not present Yvonne with any subsequent deeds, and on May 25, 2007, Yvonne died. A copy of Yvonne's will is not included in the record on appeal. Because neither party asserts differently, we assume the will provided as Yvonne had requested with regard to the back 40. Plaintiffs alleged they were third-party beneficiaries of the professional contractual relationship between Yvonne and Tueth and that Tueth breached his duty to Yvonne by not severing the joint tenancies and not deeding the parcels to plaintiffs.

¶ 5 Yvonne's will was admitted to probate on June 15, 2007. The time to contest the validity of her will continued through December 18, 2007, and the time to file claims on her estate continued through December 21, 2007. On August 14, 2007, Verne renounced Yvonne's will.

¶ 6 In May 2009, Tueth filed an answer to the complaint, admitting he had been retained to transfer the back 40, but claims the transfer was to be made by Yvonne's will. Tueth denied that Yvonne made the statement "deed the farm to the girls" in the "restricted fashion pleaded," meaning, according to Tueth, Yvonne did not intend an immediate transfer. Tueth raised two affirmative defenses: (1) mutual mistake of fact; and (2) lack of consideration.

¶ 7 In March 2010, Stocks filed a motion to withdraw as counsel, claiming circumstances had developed which created "a difference in interests between attorney and client." Jeffrey S. Deutschman assumed representation of plaintiffs.

¶ 8 In July 2010, Tueth filed a motion to amend his answer to include a third affirmative defense. He sought to include the defense that plaintiffs' lawsuit was barred by the six-month statute of limitations applicable to legal malpractice actions when the attorney's omission occurs upon the death of the client (735 ILCS 5/13-214.3(d) (West 1994)).

¶ 9 In August 2010, Tueth filed a motion to dismiss the complaint under section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2008)), claiming section 13-214.3(d) governed plaintiffs' suit and required that plaintiffs' complaint be filed on or before December 21, 2007, the expiration of the time period within which claims against the estate must have been filed.

ΒΆ 10 Plaintiffs filed a response to Tueth's motion to dismiss, claiming section 13-214.3(d) of the Code (735 ILCS 5/13-214.3(d) (West 1994)), here referred to as the Limitations Act, did not apply because plaintiffs' injury occurred prior to Yvonne's death when Tueth negligently assured her that it was not necessary to convey the property because her will would "take care of it." Attached to plaintiffs' response was an affidavit prepared by Teena Koontz, who was present at Yvonne's home with Tueth, Yvonne, and Pugsley when Yvonne executed her will. According to Koontz, Yvonne instructed Tueth to "deed the farm to ...


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