United States District Court, N.D. Illinois, Eastern Division
BRIAN PAUL BRANDOLINO, BRUCE DAVID BRANDOLINO, and BRAD ALLAN BRANDOLINO, Plaintiffs,
DOUGLAS WINTER SCHLAK, d/b/a DOUGLAS W. SCHLAK & ASSOCIATES, Defendant.
MEMORANDUM OPINION AND ORDER
Z. Lee, United States District Judge.
Brian Paul Brandolino, Bruce David Brandolino, and Brad Allan
Brandolino (together, “Plaintiffs”) allege that
Douglas Winter Schlak, an individual doing business as
Douglas W. Schlak & Associates, committed legal
malpractice by failing to properly represent their interests
in a real estate sale. Schlak has moved to dismiss the
present complaint, contending that it is untimely under
Illinois's statute of repose, 735 Ill. Comp. Stat.
5/13-214.3(c). For the reasons that follow, Schlak's
motion is denied.
2005, Robert R. Brandolino retained Schlak to assist him in
the sale of a property that Robert had received from a family
trust. Am. Compl. ¶¶ 14, 30, ECF No. 23. Robert
held a life estate in the property, and his sons-who are the
Plaintiffs in this case-held the remainder interests.
Id. ¶ 14.
facilitate the sale of the property, Schlak prepared certain
documentation for Plaintiffs to sign to sell their remainder
interests. Id. ¶¶ 15(A), 31. The documents
prepared by Schlak and signed by Plaintiffs included Powers
of Attorney for each of the Plaintiffs, appointing Schlak to
represent them in the real estate sale. Id. ¶
15(A)(5-7). At the conclusion of the sale, Robert gave $100,
000 to each son. Id. ¶¶ 20-21.
appears that the payment of $100, 000 was intended to
compensate each son for the sale of their remainder interests
in the property as part of the overall sales transaction.
See Id. However, Plaintiffs now allege that they did
not exactly know what it meant to have a remainder interest
in the property. Id. ¶ 17. To their
understanding, the only right that they had was to receive
the property in the event of their father's death, but
they believed that their father had the right to dispose of
the property while he was alive and to keep all of the
proceeds. Id. ¶¶ 17-20.
the $100, 000, Plaintiffs believed that the payments were
gifts from their father for helping to facilitate the sale
and to compensate them for the loss of their future
inheritance of the property. Id. ¶¶ 18,
20, 27. If they had known that they were giving up their
remainder rights (and how valuable those rights were) in
exchange for $300, 000, they say, they would not have agreed
it. Id. ¶¶ 19, 25.
go on to allege that Schlak never spoke to them, let alone
explained what a remainder interest was. Id. ¶
32. Nor did he advise Plaintiffs to seek independent counsel
or inform them of the potential conflict of interest between
their interests and those of their father's. Id.
¶ 26. As a result, Plaintiffs contend, Schlak committed
legal malpractice by breaching his duties (1) to exercise due
care and diligence in representing them, (2) to be loyal,
honest, and fair to Plaintiffs as his clients, (3) to
disclose all facts bearing on his representation of them, (4)
to zealously represent Plaintiffs' interests in the
property sale, and (5) to avoid conflicts of interests.
Id. ¶ 37.
Plaintiffs allege that the transaction documents created by
Schlak were intentionally misleading and did not inform them
that the compensation they received was in exchange for their
remainder interests, and not a gift. Id.
¶¶ 44, 46-48, 52. According to Plaintiffs, Schlak
also prevented them from receiving any tax documentation
about the sale, which would have revealed the true nature of
the transaction. Id. ¶ 55. Finally, Plaintiffs
contend that Schlak purposely failed to provide them with
documentation of the closing, thereby preventing them
learning of their true interests in the property.
Id. ¶¶ 44, 46-48, 52-53, 56.
after May 1, 2017, Robert became hospitalized. Id.
¶ 8. At that time, Robert gave permission to Brian to
enter his house and retrieve certain financial documents.
Id. ¶ 9. In the house, Brian found envelopes
from Schlak addressed to both Robert and Brad. Id.
¶¶ 10-12. The envelopes contained documents from
the property sale, many of which Plaintiffs had never
received or seen. Id. ¶¶ 15-16. These
documents revealed the true nature of the sale, including
proof that the $100, 000 received by each Plaintiff was in
exchange for their reminder interests and not a gift.
Id. ¶¶ 15(B)(7), 15(C)(2-4). Furthermore,
the envelope addressed to Brad contained a number of
documents signed by Schlak on behalf of Plaintiffs,
unbeknownst to them. Id. ¶ 15(B). It was only
after reading these documents that Plaintiffs understood the
nature of the transaction. Id. ¶¶ 22-23.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
when considering motions to dismiss, the Court accepts
“all well-pleaded factual allegations as true and
view[s] them in the light most favorable to the
plaintiff.” Lavalais v. Vill. of Melrose Park,
734 F.3d 629, 632 (7th Cir. 2013) (citing Luevano v.
Wal-Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir.
2013)). At the same time, “allegations in the form of
legal conclusions are insufficient to survive a Rule 12(b)(6)
motion.” McReynolds v. Merrill Lynch & Co.,
Inc., 694 F.3d 873, 885 (7th Cir. 2012) (citing
Iqbal, 556 U.S. at 678). As such,
“[t]hreadbare recitals of the elements of the cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
under Rule 12(b)(6) based on untimeliness is inappropriate,
unless the complaint itself establishes that the suit is
untimely and that there is no way around the time bar.
Sidney Hillman Health Ctr. v. Abbott Labs., Inc.,
782 F.3d 922, 928 (7th Cir. 2015); see also Chi. Bldg.
Design, P.C. v. Mongolian House, Inc., 770 F.3d 610,
613-14 (7th Cir. 2014). This is because timeliness is an
affirmative defense that need not be anticipated in the
complaint. United States v. Lewis, 411 F.3d 838, 842
(7th Cir. 2005). If there is “a conceivable set of
facts, consistent with the complaint, that would defeat [the
affirmative] defense, questions of timeliness are left for
summary judgment (or ...