2021 IL App (1st) 201003-U
FOURTH DIVISION March 25, 2021
No. 1-20-1003
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
) Appeal from the CHRISTINE DEMA, ) Circuit Court of ) Cook County Plaintiff-Appellant, ) ) v. ) ) No. 19 L 14122 CORINE O’HARA and SHUFLIT & O’HARA, ) ) Defendants-Appellees. ) ) Honorable ) James E. Snyder, ) Judge Presiding. ______________________________________________________________________________
JUSTICE REYES delivered the judgment of the court. Justices Lampkin and Martin concurred in the judgment.
ORDER
¶1 Held: Affirming the judgment of the circuit court of Cook County where plaintiff's lawsuit was properly dismissed pursuant to section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 2020)).
¶2 In December 2019, plaintiff Christine Dema filed a complaint for legal malpractice
against defendants Corine O’Hara and Shuflit & O’Hara (collectively O’Hara) for alleged
malpractice arising out of a divorce proceeding from January 2013. O’Hara filed a motion to 1-20-1003
dismiss in the circuit court, arguing that the statute of repose and statute of limitations barred
plaintiff’s cause of action. The circuit court granted O’Hara’s motion to dismiss with prejudice.
¶3 Plaintiff now appeals, arguing that the circuit court erred in granting O’Hara’s motion to
dismiss because her complaint was timely filed, especially in light of O’Hara’s fraudulent
concealment. For the reasons which follow, we affirm the judgment of the circuit court.
¶4 BACKGROUND
¶5 Plaintiff filed her original legal malpractice complaint on December 20, 2019. Upon
motion it was dismissed pursuant to section 2-615 of the Code of Civil Procedure (Code) (735
ILCS 5/2-615 (West 2020)) on May 14, 2020, with leave to replead. Thereafter, plaintiff filed
the operative amended complaint which alleged the following facts.
¶6 Plaintiff retained the services of O’Hara in a marriage dissolution proceeding around
2011. According to plaintiff, as the retainer agreement was not dated no exact date could be
ascertained. Subsequently, the parties to the dissolution reached a marital settlement agreement.
Plaintiff alleged she would only agree to the settlement if it allowed her to receive permanent
maintenance. In advising her on the marital settlement agreement, plaintiff maintained that
O’Hara repeatedly assured her that the maintenance would only terminate upon plaintiff’s
cohabitation with another person, death, or remarriage. Unbeknownst to plaintiff, the
maintenance payment was based strictly on her former husband’s employment status and not
based on any other income. At no time did O’Hara advise her that if her former husband were to
retire, she would lose all maintenance.
¶7 A judgment of dissolution was entered on January 9, 2013, which adopted the terms of
the marital settlement agreement. A copy of the judgment of dissolution was attached as an
exhibit to the complaint. Under the judgment of dissolution plaintiff was to receive permanent
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maintenance of 23.5% of her former husband’s “gross employment income.” This maintenance
would cease upon the death of either party, plaintiff’s remarriage, or plaintiff’s cohabitation with
another person on a resident, continuing conjugal basis. Plaintiff was also awarded 50% of her
former husband’s retirement fund and she was “entitled to any increase in benefits allowed on
her marital share of the Retirement Plan.” The retirement benefits would commence when her
former husband retired or when he began to receive the benefits, whichever date was earlier.
Thereafter, a Qualified Illinois Domestic Relations Order (QILDRO) was entered on January 25,
2013.
¶8 Plaintiff further alleged that on July 17, 2013, O’Hara advised and assured her that she
had to wait until her former husband retired to enter the QILDRO calculation order to begin
receiving funds. In September 2013, O’Hara informed plaintiff that she was no longer practicing
law and would not be entering the QILDRO calculation order and referred plaintiff to another
attorney. Plaintiff’s former husband retired in 2015 and plaintiff no longer received maintenance
payments. 1
¶9 In 2015, plaintiff contacted O’Hara, who advised her that the permanent maintenance
clause in her marital settlement agreement was a “standard clause” and that the loss of
employment was “always a risk.”
¶ 10 On January 10, 2017, plaintiff called O’Hara relating to paperwork on the file and
O’Hara indicated that she no longer had the paperwork. O’Hara further assured plaintiff that her
maintenance was permanent, and she would get it.
¶ 11 In October 2017, the domestic relations court did not amend the QILDRO as requested
1 Plaintiff did not allege a specific date in 2015 when her former husband retired or when she stopped receiving permanent maintenance. -3- 1-20-1003
by plaintiff.
¶ 12 On December 27, 2017, plaintiff consulted with another attorney and learned for the first
time that she had a claim for legal malpractice against O’Hara. Plaintiff alleged O’Hara
fraudulently concealed her malpractice by assuring plaintiff that she should have permanent
maintenance. According to plaintiff, this assurance by O’Hara was made to plaintiff on
numerous occasions, the last being on January 10, 2017.
¶ 13 O’Hara filed a motion to dismiss pursuant to sections 2-619(a)(5) and (a)(9) of the Code.
O’Hara argued (1) plaintiff’s claim is time-barred by the six-year repose period as provided in
section 13-214.3(c) of the Code, (2) her claim is time-barred under the two-year limitations
period as provided in section 13-214.3(b) of the Code because she reasonably should have
known of her injury when she stopped receiving maintenance benefits after her former husband’s
retirement in 2015, but suit was not filed until December 2019, and (3) the allegations of
fraudulent misrepresentation were not adequately pled and fail as a basis for tolling any repose or
limitations period.
¶ 14 In response, plaintiff maintained the complaint was timely filed under the statute of
repose due to the fact she last received negligent legal advice from O’Hara on January 10, 2017,
therefore she had six years from that date to file the complaint. Plaintiff further asserted that her
claim was not barred under the two-year statute of limitations where, pursuant to the discovery
rule, she did not discover O’Hara’s legal malpractice until December 27, 2017, when she was
informed by another attorney that she had a cause of action for legal malpractice. In addition,
plaintiff contended that the complaint was not time-barred due to O’Hara’s fraudulent
concealment. Plaintiff acknowledged that she pled in the amended complaint that she was
“putting her life in O’HARA’s hands” and that she would only agree to the settlement if she
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would receive permanent maintenance. According to plaintiff’s amended complaint, O’Hara
assured her that the marital settlement agreement would furnish plaintiff with all the benefits of
her former husband’s pension and that the terms were the very best possible solution to her
property settlements, she would fare no better at trial, and there was nothing to worry about.
¶ 15 After the matter was fully briefed and argued, the circuit court entered a written order
dismissing the complaint pursuant to section 2-619(a)(5). Specifically, the circuit court observed
that plaintiff’s injury, as pled, was that due to O’Hara’s professional negligence she did not
receive maintenance income after her former husband’s retirement in 2015. The circuit court
found that plaintiff knew or reasonably should have known of that injury at the time that income
stopped in 2015, or, at the latest in October 2017 when the domestic relations court entered an
adverse judgment. Accordingly, because the complaint was filed in December 2019, it was
untimely under the two-year statute of limitations. The circuit court further found that six years
had passed from the time the legal malpractice occurred when the judgment of dissolution was
entered on January 9, 2013. Lastly, the circuit court found that the fraudulent concealment
allegations were not well-pled as they were stated as conclusions. The court also noted that
“[m]any of the conversations, to the extent to which they are plead [sic], appear to be years past
Dema’s engagement of other counsel and the domestic relations court’s rejection of her
modification request.” This appeal followed.
¶ 16 ANALYSIS
¶ 17 Plaintiff contends on appeal that the circuit court erred in dismissing her amended
complaint because it was timely filed under both the statute of repose and the statute of
limitations and, regardless, O’Hara’s fraudulent concealment acted to toll both the statute of
repose and limitations and, therefore, her complaint was timely.
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¶ 18 Standard of Review
¶ 19 O’Hara moved to dismiss the amended complaint under section 2-619(a)(5) of the Code.
Our review of an order granting a motion to dismiss is de novo. Evanston Insurance Co. v.
Riseborough, 2014 IL 114271, ¶ 13; Phelps v. Land of Lincoln Legal Assistance Foundation,
Inc., 2016 IL App (5th) 150380, ¶ 11. Under de novo review, we perform the same analysis that
a circuit court would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
Therefore, we may affirm for any basis that appears in the record. Joyce v. DLA Piper Rudnick
Gray Cary LLP, 382 Ill. App. 3d 632, 638 (2008).
¶ 20 A motion to dismiss pursuant to section 2-619 (735 ILCS 5/2-619 (West 2020)) admits
the legal sufficiency of the complaint, but asserts certain defects, defenses or other affirmative
matters that appear on the face of the complaint or are established by external submissions that
act to defeat the claim. Wallace v. Smyth, 203 Ill. 2d 441, 447 (2002). Specifically, subsection
(a)(5) of section 2-619 allows dismissal when “the action was not commenced within the time
limited by law.” 735 ILCS 5/2-619(a)(5) (West 2020). In ruling on a section 2-619 motion, all
pleadings and supporting documents must be construed in a light most favorable to the
nonmoving party, and the motion should be granted only where no material facts are in dispute
and the defendant is entitled to dismissal as a matter of law. Kheirkhahvash v. Baniassadi, 407
Ill. App. 3d 171, 176 (2011).
¶ 21 Statute of Repose
¶ 22 Section 13-214.3 provides that an action in tort or contract against an attorney arising out
of an act or omission in the performance of professional services may not be commenced in any
event more than six years after the date on which the act or omission occurred. 735 ILCS 5/13-
214.3(b), (c) (West 2020). “[A] statute of repose begins running when a specific event occurs,
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regardless of whether an action has accrued or whether any injury has resulted.” Ferguson v.
McKenzie, 202 Ill. 2d 304, 311 (2001). The purpose of a statute of repose is “to terminate the
possibility of liability after a defined period of time, regardless of a potential plaintiff’s lack of
knowledge of his or her cause of action.” Id. Once the statute of repose has expired, the
potential plaintiff no longer has a recognized right of action to redress any harm that has been
done. Trogi v. Diabri & Vicari, P.C., 362 Ill. App. 3d 93, 96 (2005). “Illinois courts have
interpreted section 13-214.3(c) to provide that the repose period begins to run with the ‘last act
of representation upon which the malpractice is founded.’ ” Id. (quoting O’Brien v. Scovil, 332
Ill. App. 3d 1088, 1089 (2002)).
¶ 23 Here, O’Hara asserts that the statute of repose for plaintiff’s legal malpractice action
commenced in January 2013 (when the judgment of dissolution and QILDRO were entered), and
the instant cause was untimely when filed on December 20, 2019. Plaintiff, however, maintains
that the last act or omission occurred on January 10, 2017, when O’Hara assured her for the final
time that she would receive permanent maintenance and that she had “nothing to worry about.”
¶ 24 We agree with O’Hara that the last date of representation upon which the malpractice is
founded was January 2013 when the judgment of dissolution and QILDRO were entered. See
Mauer v. Rubin, 401 Ill. App. 3d 630, 642 (2010) (finding the harm to the plaintiff was done
once the judgment of dissolution incorporating the allegedly defective marital settlement
agreement was entered); DeLuna v. Burciaga, 223 Ill. 2d 49, 78 (2006) (“When, in the course of
his or her professional dealings with a client, an attorney unnecessarily exposes a client to a risk
of loss or otherwise jeopardizes the pecuniary interests of the client, the attorney has breached a
duty to the client.”). Plaintiff’s legal malpractice complaint is based on alleged professional
negligence in the representation of her during the dissolution of marriage proceedings. The
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retainer agreement attached to the complaint describes the scope of the representation as being
limited to obtaining the judgment of dissolution. Accordingly, we find the statute of repose in
this case commenced in January 2013, and therefore the statute of repose ceased in January
2019—eleven months prior to when plaintiff filed her complaint.
¶ 25 To the extent that plaintiff argues that O’Hara’s alleged continuing misrepresentations
tolled the statute of repose, we observe that Illinois courts have consistently held that the statute
of repose is not tolled merely by the continuation of the attorney-client relationship. See, e.g.,
Lamet v. Levin, 2015 IL App (1st) 143105, ¶ 20; Terra Foundation for American Art v. DLA
Piper LLP (US), 2016 IL App (1st) 153285, ¶ 31; Mauer, 401 Ill. App. 3d at 640. Rather,
“ ‘where there is a single overt act from which subsequent damages may flow, the statute [of
repose] begins to run on the date the defendant invaded the plaintiff’s interest and inflicted
injury, and this is so despite the continuing nature of the injury.’ ” Mauer, 401 Ill. App. 3d at
642 (quoting Feltmeier v. Feltmeier, 207 Ill. 2d 263, 279 (2003)). Where here, the malpractice
stemmed from the judgment of dissolution, it is apparent that the statute of repose commenced
upon the entry of that judgment.
¶ 26 Fraudulent Concealment
¶ 27 Plaintiff’s main contention, however, is that O’Hara fraudulently concealed the legal
malpractice cause of action where O’Hara continually assured plaintiff that she would receive
permanent maintenance. Plaintiff maintains that because O’Hara last made such an assurance in
January 2017, section 13-215 of the Code effectively extends the statute of repose and allows her
an additional 5 years to file her complaint.
¶ 28 Section 13-215 of the Code states:
“If a person liable to an action fraudulently conceals the cause of such action from the
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knowledge of the person entitled thereto, the action may be commenced at any time
within 5 years after the person entitled to bring the same discovers that he or she has such
cause of action, and not afterwards.” 735 ILCS 5/13-215 (West 2020).
Concealment is achieved through affirmative acts or representations “calculated to lull or induce
a claimant” so that the filing of his claim is delayed, “or to prevent a claimant from discovering
his claim.” See County Line Nurseries & Landscaping, Inc. v. Kenney, 2020 IL App (1st)
200615, ¶ 27 (quoting Barratt v. Goldberg, 296 Ill. App. 3d 252, 257 (1998)).
¶ 29 If, however, at the time the plaintiff discovers the fraudulent concealment a reasonable
time remains within the applicable statute of repose, section 13-215 does not toll the running of
the repose period. County Line Nurseries & Landscaping, Inc., 2020 IL App (1st) 200615, ¶ 28.
This rule is logical because once a party discovers the fraud, it is no longer concealed, and if time
remains within which to file the action, section 13-215 cannot operate to toll the repose period.
Morris v. Margulis, 197 Ill. 2d 28, 38 (2001) (quoting Muskat v. Sternberg, 211 Ill. App. 3d
1052, 1061 (1991)).
¶ 30 In this regard, we find Prospect Development, LLC v. Kreger, 2016 IL App (1st) 150433,
to be instructive. In that case, the plaintiff alleged that the Village of Prospect Heights breached
a 1997 agreement for the construction of a sports arena. The deal fell apart by 2004, the plaintiff
sued the Village of Prospect Heights in 2005, and in 2010, the circuit court entered a judgment
against the plaintiff. Id. ¶¶ 2, 9-11. The plaintiff then sued its attorney in 2012 alleging legal
malpractice that occurred between 1996 and 2001 relating to the project. Id. ¶ 12. In upholding
the dismissal of the legal malpractice claims, the reviewing court found that the claims were
barred by the statute of repose and that the repose period was not tolled by the fraudulent
concealment exception in section 13-215. Id. ¶ 39. This was because the court found that the
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plaintiffs discovered the legal malpractice claim while there was still a reasonable time left under
the repose period. Id. Indeed, the plaintiff’s own allegations stated it was aware that the legal
advice it received in 2005 was not accurate and therefore the plaintiff was required to investigate
further. Id. Thus, the plaintiff had over two years from January 2005 to file the legal
malpractice action within the statute of repose, which “certainly qualifies as ample time.” Id.
Accordingly, the reviewing court affirmed the dismissal. Id. ¶ 40.
¶ 31 Even giving plaintiff the benefit of the doubt and utilizing the latest date she alleges she
received actual knowledge of O’Hara’s fraudulent concealment (December 27, 2017), 14 months
remained within the statute of repose for plaintiff to file her legal malpractice action. Illinois
courts will not apply fraudulent concealment to toll a statute of repose in a case where “the
claimant discovers the fraudulent concealment, or should have discovered it through ordinary
diligence, and a reasonable time remains within the remaining limitations period.” Smith v. Cook
County Hospital, 164 Ill. App. 3d 857, 862 (1987); Serafin v. Seith, 284 Ill. App. 3d 577, 590
(1996). Accordingly, where a plaintiff has been put on inquiry as to a defendant’s fraudulent
concealment within a reasonable time before the ending of the statute of repose, such that they
should have discovered the fraud through ordinary diligence, they cannot later use fraudulent
concealment as a shield in the event that they do not file suit within the statutory period. See
Prospect Development, LLC, 2016 IL App (1st) 150433, ¶ 28.
¶ 32 We observe that plaintiff provides us with no case law or argument as to why 14 months
is an insufficient amount of time in which to file this relatively straight-forward legal malpractice
complaint. Illinois Supreme Court Rule 341(h)(7) (eff. May 25, 2018) requires the appellant’s
brief to include “[a]rgument, which shall contain the contentions of the appellant and the reasons
therefor, with citation of the authorities and the pages of the record relied on.” The failure to
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develop an argument, cite persuasive and relevant authority, or present a well-reasoned argument
violates Rule 341(h)(7) and results in forfeiture of that argument. Doherty v. Country Faire
Conversion, LLC, 2020 IL App (1st) 192385, ¶ 36. In such a case as this, where the allegations
of the complaint are straight forward and the plaintiff had not been receiving her permanent
maintenance for over two years, we find 14 months was a sufficient amount of time in which
plaintiff could have filed her legal malpractice complaint. Therefore, we find that her complaint
filed on December 20, 2019, was untimely under the statute of repose. See Butler v. Mayer,
Brown & Platt, 301 Ill. App. 3d 919, 926 (1998) (finding five months remaining was “ample”
time).
¶ 33 Statute of Limitations
¶ 34 Plaintiff next contends that her December 20, 2019, complaint was timely filed under the
two-year statute of limitations (735 ILCS 5/13-214.3(b) (West 2020)) where she obtained
knowledge of O’Hara’s malpractice on December 27, 2017.
¶ 35 Because we hold that plaintiff’s suit is time-barred under the statute of repose, we need
not address the issue of whether the suit was untimely under the statute of limitations. See Lamet
v. Levin, 2015 IL App (1st) 143105, ¶ 28 (where court declined to consider statute of limitations
after finding the statute of repose barred the suit); Terra Foundation for American Art, 2016 IL
App (1st) 153285, ¶ 54 (same).
¶ 36 Leave to File Second Amended Complaint
¶ 37 Plaintiff also contends that the circuit court should have granted her leave to amend her
complaint a second time. There is no absolute right to amend a pleading. Butler v. Kent, 275 Ill.
App. 3d 217, 229 (1995). It is well established that the decision whether to allow an amendment
to a complaint lies within the sound discretion of the trial court, and its discretion will not be
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disturbed absent an abuse of that discretion. Braun-Skiba, Ltd. v. La Salle National Bank, 279
Ill. App. 3d 912, 921-22 (1996). We cannot say that the circuit court abused its discretion in
failing to grant plaintiff leave to amend her complaint given the fact her claims are untimely, and
an amendment would not cure that defect. See Barratt, 296 Ill. App. 3d at 259 (upholding the
circuit court’s decision denying the plaintiff leave to file a legal malpractice complaint); Terra
Foundation for American Art, 2016 IL App (1st) 153285, ¶ 58.
¶ 38 CONCLUSION
¶ 39 For the reasons stated above, we affirm the judgment of the circuit court of Cook County
finding plaintiff’s legal malpractice cause of action to be untimely under both the statute of
repose and the statute of limitations.
¶ 40 Affirmed.
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