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Kadlec v. Sumner

Court of Appeals of Illinois, First District, Second Division

November 19, 2013

JAMES W. KADLEC, as Ex'r of the Estate of Thomas J. Kadlec and as Trustee of the Thomas J. Kadlec Self-Declaration Trust, Dated November 11, 2006, Plaintiff,
SARA E. SUMNER, Defendant and Third-Party Plaintiff-Appellant Green Dubin and Company, Marcie Kolberg, and Smith Koelling Dykstra and Ohm, Third-Party Defendants-Appellees.

Appeal from the Circuit Court of Cook County No. 09 L 11042 Honorable John P. Kirby, Judge Presiding.

PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Harris and Simon concurred in the judgment and opinion.




¶ 2 Plaintiff, James W.Kadlec (plaintiff), an executor of an estate, filed a legal malpractice action against the estate's attorney, Sara E. Sumner (Sumner), alleging the attorney failed to timely file the estate's federal and state estate tax returns which caused damage to the estate. The attorney for the estate then filed a third-party complaint against certain accountants for contribution alleging accounting malpractice. All accountants denied being retained for the purpose of preparing the estate tax returns for the estate. All accountants moved to dismiss the attorney's third-party contribution claim against them on statute of limitations grounds. The circuit court held that the attorney's third-party claim was time-barred by the two year statute of limitations governing claims for accountant malpractice. 735 ILCS 5/13-214(a) (West 2012). Additionally, the circuit court held that because the plaintiff in the underlying legal malpractice action could not have timely filed an accounting malpractice action directly against these accountants at the time his legal malpractice action was filed against the attorney, the statute of limitations for contribution actions (735 ILCS 5/13-204(c) (West 2012)) did not apply. For the following reasons, we affirm the circuit court ruling.


¶ 4 On August 28, 2012, the circuit court dismissed the attorney's third-party complaint against all third-party defendants with prejudice when it granted the third-party defendants' motions to dismiss for the attorney's failure to file any contribution action within the applicable statute of limitations and found no just reason to delay enforcement or an appeal of its dismissal order. The third-party plaintiff filed a timely notice of appeal on September 25, 2012. Therefore, this court has jurisdiction over this appeal pursuant to Supreme Court Rule 304(a) which allows for an appeal from a final judgment that does not dispose of the entire proceeding when the circuit court makes an express finding that there is no just reason to delay the appeal. Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010).


¶ 6 The third-party defendants filed section 2-619(a)(5) of the Code of Civil Procedure motions to dismiss and submitted that the attorney's third-party complaint against them "was not commenced within the time limited by law." 735 ILCS 5/2-619(a)(5) (West 2012). The circuit court agreed and dismissed the third-party complaint for failure to timely file such an action. A circuit court's section 2-619 dismissal order is given de novo review by this court. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.2d 558, 579 (2006).


¶ 8 Prior to his death, Thomas J. Kadlec (decedent), retained an attorney, Sumner, to prepare a self-declaration trust which he executed on November 11, 2003. The decedent died on May 16, 2005, without transferring all of his assets into his self-declaration trust. A month after the decedent's death, on June 16, 2005, Sumner filed a court petition to probate the assets which decedent failed to transfer into his self-declaration trust. On June 30, 2005, decedent's brother, plaintiff, was appointed executor of decedent's estate and also became trustee of decedent's trust.

¶ 9 The plaintiff, now serving as both executor and trustee of decedent's estate and trust, hired decedent's former attorney, Sumner, [1] as the attorney to represent the estate and trust pertaining to administration of both entities.

¶ 10 Both the plaintiff and Sumner knew that the estate tax returns were due to be filed on or before February 15, 2006. As the February date approached, Sumner and plaintiff discussed filing for the one six-month extension of time the IRS allows an estate to complete the estate tax returns and file them with the IRS. Sumner prepared the necessary request for extension to file the estate tax returns until August 16, 2006. Both Sumner and the plaintiff signed the request. Plaintiff also followed Sumner's recommendation and paid an estimated deposit of $450, 000 for the estate taxes that were due and owing. The IRS granted the extension and both plaintiff and Sumner knew that the returns were due on August 16, 2006.

ΒΆ 11 The August 16, 2006 due date passed without any estate tax returns filed on behalf of the estate. Sumner never filed the required estate tax returns. Plaintiff then hired new attorneys who filed the estate tax returns on January 28, 2008. On February 15, 2008, plaintiff and Sumner entered into an agreement whereby they mutually agreed to toll the statute of limitations applicable to a legal malpractice action that plaintiff was contemplating against Sumner to September 21, 2009. A little less than a month after the plaintiff and Sumner entered into their tolling agreement, on March 3, 2008, the IRS notified the ...

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