Timeliness

Firing One Attorney and Seeking Counsel from Another Strongly Suggests a Client is Aware of His Injuries

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William Moser (“Moser”) retained Joseph Phelps of Rinella & Rinella, LTD (the “Defendants”) to represent him in the dissolution of his marriage.  He executed a settlement agreement on October 26, 2006.   On May 3, 2016, Moser sued the Defendants for legal malpractice.  He alleged that the Defendants lied to him in order to make him sign the settlement agreement.  Moser testified at his deposition a year later that he felt “in August of 2013 that they had ignored issues in the case” and “basically misrepresented… what was going on.”   Id. at ¶10.  Further questioning established that Moser knew of the Defendants’ alleged malpractice by February, 2014 and that the latest harm he suffered occurred in March, 2014 when he was forced to pay his ex-wife’s attorney’s fees.

The Defendants moved for summary judgment, asserting Moser’s claims were time-barred by Illinois’ two-year statute of limitations for legal malpractice actions.  735 ILCS 5/13-214.3(b).  Their motion cited specific portions of Moser’s testimony wherein he “admitted to being fully aware of each of defendants’ alleged acts of negligence and resulting damages more than two years’ prior to the filing of his complaint” and an August, 2013 e-mail he had sent firing them “for cause.”  Id. at ¶¶11-12.  Moser countered that the issue was one for a jury, but the Court granted the motion given Moser’s explicit admissions in the record.

The First District affirmed, explaining that “the limitations period commences when the plaintiff is injured, rather than when the plaintiff realizes the consequences of the injury or the full extent of her injuries.”  Id. at ¶26.  Moser countered that the Defendants had fraudulently concealed their actions with reassurances that they were doing everything correctly, thereby delaying Moser’s discovery and pursuit of his claim and tolling the statute of limitations.  But Moser had not presented any specific material misrepresenta-tions or omissions by the Defendants, and the First District found it “hard to imagine how plaintiff could have been lulled by defendants into not filing a claim when plaintiff was already in touch with another law firm when he fired defendants” in August, 2013.  Id. at ¶43.

Moser v. Phelps, 2019 IL App (1st) 180852-U

(This is for informational purposes and is not legal advice.)

Firing One Attorney and Seeking Counsel from Another Strongly Suggests a Client is Aware of His Injuries

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William Moser (“Moser”) retained Joseph Phelps of Rinella & Rinella, LTD (the “Defendants”) to represent him in the dissolution of his marriage.  He executed a settlement agreement on October 26, 2006.  On May 3, 2016, Moser sued the Defendants for legal malpractice.  He alleged that the Defendants lied to him in order to make him sign the settlement agreement.  Moser testified at his deposition a year later that he felt “in August of 2013 that they had ignored issues in the case” and “basically misrepresented… what was going on.”  Id. at ¶10.  Further questioning established that Moser knew of the Defendants’ alleged malpractice by February, 2014 and that the latest harm he suffered occurred in March, 2014 when he was forced to pay his ex-wife’s attorney’s fees.

The Defendants moved for summary judgment, asserting Moser’s claims were time-barred by Illinois’ two-year statute of limitations for legal malpractice actions.  735 ILCS 5/13-214.3(b).  Their motion cited specific portions of Moser’s testimony wherein he “admitted to being fully aware of each of defendants’ alleged acts of negligence and resulting damages more than two years’ prior to the filing of his complaint” and an August, 2013 e-mail he had sent firing them “for cause.”  Id. at ¶¶11-12.  Moser countered that the issue was one for a jury, but the Court granted the motion given Moser’s explicit admissions in the record.

The First District affirmed, explaining that “the limitations period commences when the plaintiff is injured, rather than when the plaintiff realizes the consequences of the injury or the full extent of her injuries.”  Id. at ¶26.  Moser countered that the Defendants had fraudulently concealed their actions with reassurances that they were doing everything correctly, thereby delaying Moser’s discovery and pursuit of his claim and tolling the statute of limitations.  But Moser had not presented any specific material misrepresentations or omissions by the Defendants, and the First District found it “hard to imagine how plaintiff could have been lulled by defendants into not filing a claim when plaintiff was already in touch with another law firm when he fired defendants” in August, 2013. Id. at ¶43.

Moser v. Phelps, 2019 IL App (1st) 180852-U

(This is for informational purposes and is not legal advice.)

Doyle v. Hood, 2018 IL App (2d) 171041

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Harry Doyle retained the defendants, attorney Thomas Hood and Thomas B. Hood Law Offices, P.C., to prepare his will and a revocable living trust for his disabled wife, Patricia.  The living trust established a supplemental trust, with Patricia as its bene-ficiary.  Harry executed the necessary documents in December 2011.  Upon Harry’s death in January 2012, his son, Michael, became executor of his will and trustee of both trusts.  In late 2013, Patricia was admitted to a long-term-care facility.  Six months after that, an application for long-term benefits was filed on her behalf before the Department of Human Services.  The DHS subtracted a $2,000.00 asset allowance from the supple-mental trust, and imposed a spend-down of the remaining funds.  An appeal was filed on Patricia’s behalf, but the DHS found instead that a considerably higher penalty was owed.

Michael, as trustee, sued the defendants for professional negligence in May 2017.  He alleged that no penalty would have been assessed if the defendants had created the trust from Harry’s will instead of the living trust.  The defendants moved to dismiss, arguing that the claim was time-barred because it was filed more than two years after Harry’s death.  The trial court granted the motion, and Michael appealed.  The appellate court agreed with the defendants that the two-year statute of limitations applied, since the injury in this case occurred “when the Supplemental Trust could no longer be amended or revoked and was actually funded, both of which occurred upon Harry’s death.”   Id. at ¶ 28; (“When the injury caused by the act or omission does not occur until the death of the person for whom the professional services were rendered, the action may be com-menced within 2 years after the date of the person’s death…”), 735 ILCS 5/13-214(d).  The appellate court clarified that this exception “’applies instead of […] the six-year statute of repose.’”  Id. at ¶ 22, citing Wackrow v. Niemi, 231 Ill. 2d 418, 427 (2008).

Doyle v. Hood, 2018 IL App (2d) 171041

(This is for informational purposes and is not legal advice.)

Miller v. Davis , 2018 IL App (4th) 170337-U

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Mark Miller was committed to the Department of Human Services as a sexually violent person, but his commitment was reversed on appeal because of ineffective representation by his former trial attorney, W. Keith Davis.  For this, Miler sued Davis pro se for legal malpractice, filing his complaint on October 25, 2013.  Davis was not served until almost three years later on October 14, 2016, well after the two-year statute of limitations had lapsed.  Davis moved to dismiss with prejudice pursuant to Illinois Supreme Court Rule 103(b) for failure to exercise reasonable diligence in service.  The trial court granted Davis’ motion.

On appeal, the dismissal was affirmed.  The appellate court explained that Miller’s status as a pro se litigant did not exempt him from compliance with the same rules of procedure as a litigant represented by counsel.  Moreover, it noted that “there was a lengthy period of time, over two years, where Miller did nothing to move his case forward.”  Id. at ¶ 23.  Although the record indicated Davis knew of Miller’s complaint soon after it was filed, the appellate court held that “the presence of actual knowledge and the absence of prejudice do not require this court to find reasonable diligence” as they do not “outweigh the other factors.”  Id. at ¶ 24.

Miller v. Davis , 2018 IL App (4th) 170337-U

(This is for informational purposes and is not legal advice.)

 

White v. Richert , 2018 WL 4101512

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Anna White filed a petition against her niece, attorney Elizabeth Richert, alleging violation of Richert’s duty of honesty and loyalty as White’s attorney and as trustee of a trust from which both women were to receive distributions.  Richert moved for summary judgment on both claims, arguing that they were time-barred.

With respect to White’s claim against Richert as an attorney, White affirmatively pleaded that she discovered the injury giving rise to her claim in February, 2013, but did not file her complaint until July, 2015.  Thus, the court held that the claim was time-barred. Illinois’ statute of limitations for actions “against an attorney arising out of an act or omission in the performance of professional services,” requires that they “be commenced within 2 years from the time the person bringing the action knew or reasonably should have known of the injury…”  Id. at 5; 735 ILCS 5/13-214.3.

As for White’s claim against Richert as a trustee, the court held that Illinois’ five-year catch-all provision applied, since “Illinois does not provide a specific statute of limitations for claims of breach of fiduciary duty by a trustee.”  Id. at 6; 735 ILCS 5/13-205. The Court held that the statute of limitations had not lapsed, since White could not have known about this claim against Richert until shortly before she amended her complaint in 2017 to include it, “when it became evident during discovery that there was more than one version” of the trust.  Id. at 7.

White v. Richert, 2018 WL 4101512

(This is for informational purposes and is not legal advice.)

 

Recent Illinois Case: Bachewicz v. Holland & Knight

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In this unpublished opinion, the First District affirmed the trial court’s grant of summary judgment to a law firm.

The court held that the case was time-barred despite the plaintiff’s argument that he did not know the amount of his damages until less than two years from the time he brought his claim. The court held that it is not necessary to know the amount of damages for the statute of limitations to begin to run.

The court also held that the plaintiff failed to create a genuine issue of fact sufficient to defeat summary judgment because he did not identify the documents that allegedly led him to discover his damages.

Finally, the court affirmed summary judgment for the defendants on the plaintiff’s legal malpractice claim arising out of a transfer of real estate with which the defendants assisted because the plaintiff admitted that the transfer occurred after the attorney-client relationship had terminated.

Bachewicz v. Holland & Knight, 2016 IL App (1st) 153394-U

(This is for informational purposes and is not legal advice.)

Recent Illinois Case: Mustafa v. NSI International, Inc.

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The Northern District dismissed a legal malpractice claim in which a former employee attempted to sue her employer’s attorney. The court held that the attorney owed no duty to the former employee and that the claim was time barred.

Mustafa v. NSI International, Inc.,  2016 WL 6778888

(This is for informational purposes and is not legal advice.)