Kheirkhahvash v. Baniassadi

Opinion

FIRST DISTRICT FOURTH DIVISION January 13, 2011

No. 1-10-0151

AFROUZ KHEIRKHAHVASH, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) No. 09 L 9943 ) REZA BANIASSADI, ) Honorable ) Ronald S. Davis, Defendant-Appellee. ) Judge Presiding. )

Presiding Justice Gallagher delivered the judgment of the court, with opinion. Justices Lavin and Pucinski concurred in the judgment and opinion.

OPINION

Plaintiff-appellant, Afrouz Kheirkhahvash, filed a complaint against defendant-appellee

Reza Baniassadi, alleging legal malpractice and fraud based on Baniassadi’s representation of

Kheirkhahvash in immigration proceedings. Baniassadi filed a motion to dismiss pursuant to

section 2-619(a)(5) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5)

(West 2008)) on the grounds that the complaint was time barred under section 13-214.3 of the

Code (735 ILCS 5/13-214.3(b), (c) (West 2008)). The circuit court granted the motion to

dismiss with prejudice and denied Baniassadi’s request for attorney fees and sanctions. On

appeal, Kheirkhahvash contends that the circuit court erred in dismissing the complaint as time-

barred where a factual dispute exists as to when Kheirkhahvash discovered Baniassadi’s 1-10-0151

negligence, the negligence alleged was continuous and Kheirkhahvash incurred increasingly severe

injuries, and a language barrier prevented the timely discovery of the injury and damages.

Kheirkhahvash further contends that Baniassadi’s acts of fraudulent concealment bar him from

raising a statute of limitations defense. For the following reasons, we affirm the judgment of the

circuit court.

BACKGROUND

Kheirkhahvash was born in Iran. She came to the United States on a visitor’s visa on

August 3, 1999. Her visa was set to expire in February 2000. Kheirkhahvash was fluent in Farsi

and could not read, speak or write English. She retained Baniassadi, whose first language is also

Farsi, in January or February of 2000. Baniassadi obtained an extension of her visitor’s visa to

July 2000. Kheirkhahvash also sought Baniassadi’s advice on the issue of remaining in the United

States permanently. According to Kheirkhahvash, she told him that she had come to the United

States because she was afraid of her abusive husband and that she also wanted Baniassadi’s help

in obtaining a divorce. Baniassadi told her that fear of her husband was not a sufficient reason for

her to obtain asylum and that she should seek asylum on political grounds, based on a fear of

persecution by the Iranian government. He asked about her political involvement and she told

him she had never been involved in politics. He told her he would prepare a statement that he had

used successfully with other clients.

Baniassadi prepared an asylum application that contained Kheirkhahvash’s personal

information. In the section of the application that asked for the information regarding the nature

of the asylum claim, he included a reference to an attached exhibit. Kheirkhahvash signed the

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application itself (without the exhibit) on February 16, 2000. In June 2000, she signed two more

documents, an attorney appearance form and another document containing biographical

information.

On August 1, 2000, Baniassadi filed Kheirkhahvash’s asylum application. A verified

personal statement was attached to the application. According to the statement, Kheirkhahvash

became a supporter of Mojahedin Khaleq1 (MEK) when she was in high school. It stated that she

was put on probation by her school’s Islamic committee and told that if she did not stop her anti-

Islamic activities, she would be expelled from school and reported to the revolutionary guards.

The statement claimed that although Kheirkhahvash passed her university entrance exam, she was

put on probation for two years and ordered to support the Islamic regime, comply with Islamic

dress code and attend her local mosque. When she was finally admitted to the university, she was

put on probation for refusing to attend the mosque and voicing opposition to the regime. The

university then reported her to the revolutionary guards. According to the statement, she and her

father were both detained by the revolutionary guards and were interrogated and tortured. She

married a man who allegedly was also a supporter of MEK and worked as a journalist for a

magazine that was shut down by the regime. He was also interrogated and tortured by the

revolutionary guards. The statement concluded by stating that Kheirkhahvash was detained and

tortured a second time and upon her release, she went into hiding and was able to get out of Iran

and come to the United States.

1 The record and briefs contain many spelling variations for the name of this organization,

e.g., Mujahedin-e Khalq, Muhajadeen-el-Kalq, Mujahedeen-e-Khalq, etc.

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The statement was signed, but Kheirkhahvash maintains that the signature on the

statement is not hers and points out that it does not match other documents containing her actual

signature. She also maintains that she did not see the statement until Baniassadi sent her a version

of the statement that had been translated into Farsi in late August/early September, after her

application had already been filed. He told her she needed to memorize the statement for her

upcoming interview with immigration officials. Kheirkhahvash told him that the statement was

false, she knew nothing about the MEK, her husband had never been a journalist and was not a

supporter of MEK, and she could not testify to such facts. Baniassadi told her that because the

application had already been filed, she had no choice but to testify to those facts or she would be

denied asylum and would be deported to Iran for filing a false application.

At the immigration interview, Kheirkhahvash testified through a translator to the facts in

the verified personal statement. At the conclusion of the interview, Baniassadi told her that her

application would be approved and that she would get her green card. In fact, the asylum

application was denied and she was served with a notice to appear in immigration court for a

removal hearing. When she asked Baniassadi to explain the meaning of the notice, he told her

that her application had been referred to an immigration judge and it would be reconsidered and

granted. He again told her that his other Iranian clients had claimed persecution on account of

their sympathies for the MEK and were granted asylum. He warned her that if she tried to

withdraw her personal statement, the immigration judge would order that she be deported to Iran.

Kheirkhahvash said that before her removal hearing, Baniassadi told her that her father

had to testify to the facts in the personal statement. When Kheirkhahvash showed the statement

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to her father, he became very angry with her. He refused to testify and tried to get Baniassadi to

withdraw the asylum application. He said that he did not want to lie, that nobody in Iran supports

the MEK, and that he did not want to get involved in anything to do with the MEK. Her father

eventually agreed to testify after Baniassadi persuaded him that if he did not testify, his daughter

would be deported to Iran.

On April 15, 2002, a hearing was held before an immigration judge and Kheirkhahvash’s

father testified to the facts in the personal statement. The government attorney introduced

evidence that the MEK was listed as a terrorist organization by the Attorney General of the

United States. Kheirkhahvash maintains that her father’s testimony was inconsistent, and that

Baniassadi requested a continuance because he realized he needed additional evidence. He

prepared an additional affidavit for her mother to sign that described in detail how Kheirkhahvash

was beaten and tortured because of her support for the MEK. On April 24, 2002, Kheirkhahvash

testified according to the facts in the verified personal statement. The immigration judge denied

her asylum application and her withholding of removal request, finding that she was a member of

a terrorist organization and that she posed a danger to the security of the United States. The

judge ordered that she be deported to Iran.

On May 24, 2002, Baniassadi filed a motion to reconsider. The motion was denied on

July 12, 2002, and Baniassadi filed an appeal with the Board of Immigration Appeals on August

12, 2002. On October 10, 2002, Kheirkhahvash was taken into custody by the Department of

Homeland Security, Immigration and Customs Enforcement. She was released from detention

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under an order of supervision dated February 4, 20032. On October 8, 2003, the Board of

Immigration Appeals entered an order affirming the denial of Kheirkhahvash’s asylum application

and withholding of removal on the basis of her admitted affiliation with MEK. However, the

order returned the case to the immigration judge for consideration of Kheirkhahvash’s claim for

protection under the Convention Against Torture.

Sometime after her release from custody, Kheirkhahvash consulted with and subsequently

retained new counsel. The record contains a consent to attorney withdrawal dated November 24,

2003, withdrawing the appearance of Baniassadi as Kheirkhahvash’s attorney. It also contains a

consent to substitution of counsel dated November 25, 2003, authorizing the appearance of her

current attorney. Both documents are stamped as being received in court on December 3, 2003.

In a letter dated November 24, 2003, and file stamped November 25, 2003, Kheirkhahvash

requested the Attorney Registration and Disciplinary Commission (ARDC) to investigate

Baniassadi for advising her to file and testify falsely with regard to her asylum application. On

July 14, 2004, Kheirkhahvash’s current attorney filed a motion to withdraw her original asylum

application, contending that it was the product of ineffective assistance of counsel. On August

2 Both the complaint and appellant’s brief state that Kheirkhahvash was detained on

October 10, 2003, and released February 24, 2004, under an order of supervision. Documents

filed by the appellee state that Kheirkhahvash was detained on October 10, 2002, and was

released February 4, 2003. The only official document in the record relating to the detention is an

order of supervision dated February 4, 2003. Thus, because Kheirkhahvash was released from

custody in February 2003, we conclude she was in fact detained in October 2002.

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21, 2009, Kheirkhahvash filed a complaint against Baniassadi alleging legal malpractice and fraud.

Baniassadi filed a motion to dismiss the complaint as untimely and the trial court granted the

motion on December 18, 2009. This appeal follows.

ANALYSIS

A motion for involuntary dismissal under section 2-619 admits the legal sufficiency of the

complaint but asserts an affirmative defense or other matter that avoids or defeats the claim.

DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). “The purpose of a section 2-619 motion is to

dispose of issues of law and easily proved issues of fact early in the litigation.” Czarobski v. Lata,

227 Ill. 2d 364, 369 (2008). When ruling on a section 2-619 motion, a court must interpret all

pleadings and supporting documents in the light most favorable to the nonmoving party. Porter v.

Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008). Our review of a section 2-619 motion

to dismiss is de novo. Id.

Baniassadi filed his motion to dismiss pursuant to section 2-619(a)(5), which provides for

involuntary dismissal on the grounds that the action was not commenced within the time limited

by law. 735 ILCS 5/2-619(a)(5) (West 2008). The statute of limitations for a legal malpractice

action is set forth in section 13-214.3 of the Code, which provides that an action against an

attorney for damages based on tort, contract or otherwise arising out of an act or omission in the

performance of professional services “must be commenced within 2 years from the time the

person bringing the action knew or reasonably should have known of the injury for which

damages are sought.” 735 ILCS 5/13-214.3(b) (West 2008). Section 13-214.3 also contains a

statute of repose. It provides that an action for legal malpractice “may not be commenced in any

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event more than 6 years after the date on which the act or omission occurred.” 735 ILCS 5/13-

214.3(c) (West 2008).

In arguing that the trial court erred in dismissing her complaint as time barred,

Kheirkhahvash raises multiple issues, some of which overlap and will be discussed as a single

issue. First, Kheirkhahvash contends that the trial court erred in equating her discovery in

September 2000 that Baniassadi had filed a false asylum application with the date on which she

knew or reasonably should have known of the injury. Kheirkhahvash argues that even if the

negligent act occurred on August 1, 2000, with the filing of the false asylum application, and she

discovered in September 2000 that a false statement had been filed, she did not realize at that time

that she had sustained an injury, nor had she incurred actual damages. Kheirkhahvash further

contends that the trial court ignored allegations in the complaint that she was prevented from

timely discovering her injuries because of language and cultural barriers.

As an initial matter, although both parties’ briefs indicate that the trial court concluded

that Kheirkhahvash knew of the alleged negligence in September 2000, we note that the trial

court’s order contains no date for when the statute of limitations began to run. It merely states

that Kheirkhahvash’s complaint is dismissed with prejudice “as being time barred by the Statute of

Limitations of 2 years in contract and 5 years in fraud.” There is nothing in the record to indicate

a determination by the trial court as to the date on which Kheirkhahvash knew or reasonably

should have known she had a cause of action. There is also no evidence in the record that the

trial court “ignored” allegations in the complaint that language and cultural barriers prevented the

timely discovery of Kheirkhahvash’s injuries.

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We now turn to the issue of whether the trial court erred in dismissing the complaint as

time barred. We agree with Kheirkhahvash that the statute of limitations did not begin to run in

late August/early September 2000 when Baniassadi faxed her a copy of the personal statement in

Farsi and she told him it was false. The general rule in Illinois is that a cause of action for legal

malpractice does not accrue until the entry of an adverse judgment, settlement, or dismissal of the

underlying action in which the plaintiff has become entangled due to the alleged negligent advice

of her attorney. Warnock v. Karm Winand & Patterson, 376 Ill. App. 3d 364, 371-72 (2007).

This court has noted that “[t]here may be rare cases in which it is painfully obvious, prior to any

adverse ruling against the plaintiff client, that he has been injured as a result of professional

negligence.” Id. at 372. However, this is not such a case. Kheirkhahvash did not speak English

or understand the immigration process and relied upon the advice of her attorney. It would not

have been obvious to her at that point in time that she would be deported on the basis of the false

asylum application. In fact, Baniassadi assured Kheirkhahvash that he had successfully obtained

political asylum for other clients on those grounds and that she would be deported if she did not

go along with the story. Thus, the earliest date at which the statute of limitations could have

started to run is April 24, 2002, the date the immigration judge entered an order finding

Kheirkhahvash to be a member of a terrorist organization and ordering her deportation to Iran.

Moreover, we agree with Kheirkhahvash that due to language and cultural barriers, it is

unlikely that she knew or reasonably should have known even at that time that she had a cause of

action against Baniassadi, who continued to reassure her that he would appeal the decision and

the order would be reversed. However, once Kheirkhahvash obtained new counsel, it can no

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longer be argued that she should not reasonably have known that she had a cause of action against

Baniassadi. Her new counsel obviously knew about the false asylum application and the effect it

had on her client, as evidenced by the filing of an ARDC complaint against Baniassadi on those

grounds on November 25, 2003. Thus, the very latest date that the statute of limitations could

have started to run is November 25, 2003, which means that, barring any applicable exception,

her cause of action expired on November 25, 2005, and the trial court correctly dismissed the

complaint.

Next, Kheirkhahvash argues that the court erred in applying the statute of limitations as a

bar to this action because the negligence perpetrated by Baniassadi was continuous and

Kheirkhahvash incurred increasingly severe injuries. She contends that her complaint was timely

filed because Baniassadi committed continuous acts of negligence until December 3, 2003, when

he withdrew as Kheirkhahvash’s counsel, at which time the wrongful acts ceased. Thus, because

her complaint was filed on August 21, 2009, Kheirkhahvash maintains that it was within the six

year statute of repose and was therefore timely filed.

We need not address the issue of whether Baniassadi’s negligence was continuous because

this argument has no merit on its face. Even if we were to agree that the statute of repose did not

start running until Baniassadi’s withdrawal, the complaint would not have been timely filed under

the statute of limitations. A statute of limitations and a statute of repose are not interchangeable.

A statute of limitations governs the time within which lawsuits may be filed after a cause of action

has accrued, while a statute of repose extinguishes the action itself after a set period of time,

regardless of when the action accrued. Ferguson v. McKenzie, 202 Ill. 2d 304, 311 (2001). In

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Ferguson, our supreme court stated:

“Unlike a statute of limitations, which begins running upon accrual of a cause of

action, a statute of repose begins running when a specific event occurs, regardless

of whether an action has accrued or whether an injury has resulted. [Citation.]

A statute of repose gives effect to a policy different from that advanced by a

statute of limitations; it is intended 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 Baniassadi withdrew as counsel, Kheirkhahvash knew or reasonably should have

known that she had a cause of action. A deportation order had been entered on April 24, 2002,

so she already knew of her injury. Once she obtained new counsel, it is clear that she knew her

injury had been wrongfully caused because she filed an ARDC complaint. Although the attorney

consent for withdrawal was received in court December 3, 2003, the document stated that it was

effective November 24, 2003, one day prior to the filing of her ARDC complaint against

Baniassadi on November 25. Therefore, she knew at that time that she had a cause of action and

the statute of limitations began to run. Whether the statute of repose began to run the same day

her action accrued or three years earlier is irrelevant. The statute of repose could not operate as a

statute of limitations and give her six years instead of two in which to file her action. Under the

statute of limitations, her cause of action expired at the latest on November 25, 2005.

Third, Kheirkhahvash argues that the trial court erred in concluding as a matter of law that

her claim was time barred when a factual dispute existed as to when she discovered Baniassadi’s

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negligence. We note that Kheirkhahvash does not state anywhere in her brief when she believes

she discovered Baniassadi’s negligence. She obviously knew she had a cause of action when she

filed her complaint on August 21, 2009. Yet she does not point to anything that happened within

the two years prior to that date that caused her to suddenly discover Baniassadi’s negligence. She

claims that the statute of repose began to run when Baniassadi withdrew as counsel and his

wrongful acts ceased. But she also claims that she did not discover that she had a cause of action

when she retained her current counsel in November 2003, because Baniassadi did not admit to her

current counsel that he had been grossly negligent in his representation. This argument is without

merit. It suggests that the only way Kheirkhahvash’s current counsel could have learned of the

negligence was through Baniassadi himself.

In fact, Kheirkhahvash filed an ARDC complaint on November 25, 2003, in which she

requested an investigation of Baniassadi for advising her to file and testify falsely with regard to

her asylum application. Her current counsel most certainly knew or should have known at that

time that she had a cause of action. Therefore, at the very latest, the statute of limitations began

to run on November 25, 2003. While the time when an injured party knew or reasonably should

have known of the injury and that it was wrongfully caused is usually a disputed question to be

resolved by the finder of fact, if it is apparent from the undisputed facts that only one conclusion

can be drawn, the question becomes one for the court. Witherell v. Weimer, 85 Ill. 2d 146, 156

(1981). There is nothing in the record to indicate that there is any possibility that Kheirkhahvash

did not know of the negligence at the time she filed the ARDC complaint. Thus, the trial court

did not err in determining as a matter of law that her complaint was time barred.

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Finally, Kheirkhahvash contends that under the doctrine of equitable estoppel, Baniassadi

is prevented from raising a statute of limitations defense because he engaged in acts of fraudulent

concealment. These are actually two separate arguments: (1) that fraudulent concealment by

Baniassadi operates as an exception to both the statute of limitations and the statute of repose,

and (2) that Baniassadi is equitably estopped from raising a statute of limitations defense.

We first address the fraudulent concealment argument. Section 13-215 of the Code

provides that if a person liable to an action fraudulently conceals the cause of such action from the

knowledge of the person entitled thereto, the action may be commenced at any time within five

years after the person discovers that he or she has a cause of action. 735 ILCS 5/13-215 (West

2008). Our supreme court has held that in addition to operating as an exception to the statute of

limitations, section 13-215, when applicable, is an exception to the statute of repose in legal

malpractice actions. DeLuna, 223 Ill. 2d at 74.

“As a general matter, one alleging fraudulent concealment must ‘show affirmative acts by

the fiduciary designed to prevent the discovery of the action.’ ” Clay v. Kuhl, 189 Ill. 2d 603, 613

(2000) (quoting Hagney v. Lopeman, 147 Ill. 2d 458, 463 (1992)). However, there is a widely

recognized exception to this rule in cases where the existence of a fiduciary relationship is clearly

established. DeLuna, 223 Ill. 2d at 76 (citing Crowell v. Bilandic, 81 Ill. 2d 422, 428 (1980)).

“[A] fiduciary who is silent, and thus fails to fulfill his duty to disclose material facts concerning

the existence of a cause of action, has fraudulently concealed that action, even without affirmative

acts or representations.” (Emphasis omitted.) Id. at 77. Our supreme court has also recognized

that an attorney-client relationship constitutes a fiduciary relationship. Id. (and cases cited

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therein).

Although it is not necessary to show affirmative acts where a fiduciary relationship has

been clearly established, our supreme court has insisted on strict pleading requirements for a

plaintiff alleging fraudulent concealment. Hagney v. Lopeman, 147 Ill. 2d 458, 463-64 (1992).

Specifically, “to excuse diligence in discovering the fraud, the plaintiff must attribute the failure to

discover to the trust and confidence placed in the fiduciary.” Id. at 464. “In order to state a

claim for fraudulent concealment, a plaintiff must allege that the defendant concealed a material

fact when he was under a duty to disclose that fact to plaintiff.” Connick v. Suzuki Motor Co.,

174 Ill. 2d 482, 500 (1996).

In DeLuna, the plaintiffs alleged that their attorney failed to reveal pertinent facts, misled

them by telling them their case was going well when it had, in fact, been dismissed, and failed to

disclose material facts bearing on the procedural status of the case. DeLuna, 223 Ill. 2d at 79-80.

Moreover, the plaintiffs alleged that they could not speak English and that they relied in good

faith on their attorney’s reassurances. Id. at 80-81. The supreme court held that these allegations

were sufficient to meet the pleading requirements for fraudulent concealment. Id. at 81.

Here, it is doubtful that Kheirkhahvash’s complaint meets the pleading requirements. The

complaint does not contain any reference to fraudulent concealment. In her fraud count,

Kheirkhahvash focuses on Baniassadi’s intentional, knowing, and willful conduct in filing a false

application rather than on his representations and assurances to her and her trust in those

assurances. Moreover, even if we were to determine that Kheirkhahvash’s complaint meets the

pleading requirements for fraudulent concealment, it cannot save her legal malpractice action. As

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noted above, section 13-215 operates as an exception to both the statute of limitations and the

statute of repose. Thus, if the statute of repose had already run and Kheirkhahvash successfully

pled fraudulent concealment, section 13-215 would give her an additional five years from the time

she discovered that she had a cause of action in which to file her complaint. However, it is well

settled in Illinois law that if a reasonable amount of time remains in the applicable limitations

period when the plaintiff discovers the cause of action, section 13-215 will not extend that period.

See, e.g., Leffler v. Engler, Zoghlin, & Mann, Ltd., 157 Ill. App. 3d 718, 721 (1987); Barratt v.

Goldberg, 296 Ill. App. 3d 252, 258 (1998) (and cases cited therein).

Baniassadi filed the false asylum application on August 1, 2000. Thus, under the statute

of repose, Kheirkhahvash’s cause of action would extinguish on August 1, 2006. At the very

latest, she knew she had a cause of action at the time she retained new counsel and filed a

complaint against Baniassadi with the ARDC on November 25, 2003. At that time, almost three

years remained under the statute of repose. Moreover, under Kheirkhahvash’s argument that the

statute of repose did not start to run until Baniassadi withdrew, there would have been six years

remaining under the statute of repose. Thus, under both possible dates, a reasonable amount of

time remained such that even if Kheirkhahvash successfully pled fraudulent concealment, it would

operate only as a possible exception to the statute of limitations and not as an exception to the

statute of repose.

Similarly, fraudulent concealment does not save her malpractice action as an exception to

the statute of limitations. Assuming, arguendo, that Kheirkhahvash’s cause of action accrued on

April 24, 2002, when the deportation order was entered, her cause of action would have expired

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on April 24, 2004. She could then argue that when she discovered the fraudulent concealment on

November 25, 2003, the amount of time remaining under the statute of limitations was not

reasonable. However, even if her complaint sufficiently pled fraudulent concealment and section

13-215 operated as an exception to the statute of limitations, she would only have had 5 years

from the time she learned of the cause of action, which would have given her until November 25,

2008. She did not file her complaint until August 21, 2009. Therefore, her complaint was

untimely under section 13-215.

We similarly reject Kheirkhahvash’s equitable estoppel argument. In order for a plaintiff

to invoke estoppel against a statute of limitations defense, “the plaintiff must have relied on acts

or representations of the defendant which caused the plaintiff to refrain from filing suit within the

applicable statute of limitations.” Leffler, 157 Ill. App. 3d at 722-23. However, “[t]he doctrine

of equitable estoppel will not apply to a case if defendant’s conduct terminated within ample time

to allow the plaintiff an opportunity to file a cause of action within the limitation period.”

Barratt, 296 Ill. App. 3d at 259. Baniassadi’s conduct terminated on November 24, 2003. This is

roughly the same time that Kheirkhahvash filed an ARDC complaint against Baniassadi, evidence

that she knew or reasonably should have known that her injury was wrongfully caused. She then

had two years under the statute of limitations for legal malpractice actions to file her claim and

therefore, the doctrine of equitable estoppel does not apply.

As a final matter, we address defendant’s request for sanctions under Illinois Supreme

Court Rule 375 (eff. Feb. 1, 1994). Rule 375(b) provides that if a reviewing court determines that

an appeal is frivolous, or that it was not taken in good faith or for an improper purpose, an

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appropriate sanction may be imposed upon the party or the attorney of the party. Ill. S. Ct. R.

375(b) (eff. Feb. 1, 1994). However, as defendant also correctly notes, the imposition of

sanctions is a matter left strictly to the appellate court’s discretion. Residential Carpentry, Inc. v.

Illinois Workers’ Compensation Comm’n, 389 Ill. App. 3d 975, 976 (2009). We agree that there

is little or no merit to this appeal but in the exercise of our discretion, we decline to impose

sanctions.

CONCLUSION

Based on the foregoing analysis, we hold that the trial court did not err in determining as a

matter of law that Kheirkhahvash’s complaint was time barred. Under the most generous

interpretation of the facts, the latest date at which she knew or reasonably should have known of

her injury and that it was wrongfully caused is November 25, 2003. Thus, under the statute of

limitations for legal malpractice actions, her cause of action expired on November 25, 2005. We

further conclude that her claim that her complaint was timely filed under the six-year statute of

repose because defendant’s continuous negligent actions did not cease until he withdrew as

counsel on November 24, 2003, is without merit. A statute of repose does not operate as a

statute of limitations and give a plaintiff six years in which to file instead of two after a cause of

action accrues. Finally, even if we were to determine that her complaint met the pleading

requirements for fraudulent concealment and tolled the statute of limitations, her cause of action

would have expired on November 25, 2008. Moreover, equitable estoppel does not apply

because defendant’s conduct terminated at the time her cause of action accrued, allowing ample

time to file her complaint within the two-year statute of limitations.

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Affirmed.

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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be Attached to Each case) _____________________________________________________________________________

AFROUZ KHEIRKHAHVASH,

Plaintiff-Appellant,

v.

REZA BANIASSADI,

Defendant-Appellee.

_____________________________________________________________________________

Appellate Court of Illinois First District, Fourth Division

January 13, 2011 _____________________________________________________________________________

PRESIDING JUSTICE GALLAGHER delivered the opinion of the court.

LAVIN and PUCINSKI, JJ., concur.

_____________________________________________________________________________

Appeal from the Circuit Court of Cook County.

Honorable Ronald S. Davis, Judge Presiding. _________________________________________________________________________

For APPELLANT, Law Offices of Mary L. Sfasciotti, P.C., Chicago, IL (Mary L. Sfasciotti, of counsel)

For APPELLEE, Joanna C. Fryer, Chicago, IL (Joanna C. Fryer, of counsel)