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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,
v.
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).

Rule 23 Order filed September 24, 2013

Rule 23 Order withdrawn November 5, 2013

Held: [*]

In an accounting malpractice action arising from the legal malpractice action plaintiff executor filed against the estate’s attorney, the trial court properly dismissed the attorney’s third-party complaint for accounting malpractice alleging that two accounting firms failed to file estate tax returns for the estate in a timely manner, since the two-year statute of limitations applicable to the third-party action had expired, and, furthermore, there was no indication the accountants were ever retained to file such returns.

Appeal from the Circuit Court of Cook County, No. 09-L-11042; the Hon. John P. Kirby, Judge, presiding.

Konicek & Dillon, PC, of Geneva (Daniel F. Konicek and Amir R. Tahmassebi, of counsel), for appellant.

Pretzel & Stouffer, Chtrd. (James J. Sipchen and Matthew F. Tibble, of counsel) and Law Offices of Edward J. Kozel (Edward J. Kozel, of counsel), both of Chicago, for appellees.

Justices Harris and Simon concurred in the judgment and opinion.

OPINION

QUINN, PRESIDING JUSTICE

¶ 1 I. INTRODUCTION

¶ 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.

¶ 3 II. JURISDICTION

ΒΆ 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 ...


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