Sharpenter v. Lynch

599 N.E.2d 464, 233 Ill. App. 3d 319, 174 Ill. Dec. 380
Appellate Court of Illinois·Decided August 26, 1992·No. 2-91-1457·Published·Cited by 14 cases

Opinion

599 N.E.2d 464 (1992)
233 Ill. App.3d 319
174 Ill.Dec. 380

Kelly A. SHARPENTER, Indiv. and as Mother and Next Friend of Ami Orava, Plaintiff-Appellant,
v.
Kevin F. LYNCH, et al., Defendants-Appellees.

No. 2-91-1457.

Appellate Court of Illinois, Second District.

August 26, 1992.

*465 Edgar P. Petti, Winston & Strawn, Geneva, David S. Acker, Winston & Strawn, Chicago, for Kelly A. Sharpenter.

Caroline A. Mondschean, Joshua G. Vincent, George W. Spellmire, Jr., Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for Kevin F. Lynch, William J. Wylie, Wylie, Wheaton & Assoc., PC and John S. Biallas.

Weiler & Noble, P.C., Rory T. Weiler, Elburn, Broderick & Dunn, Joyce E. Zupancic, Chicago, for defendants-appellees.

Presiding Justice INGLIS delivered the opinion of the court:

Plaintiff, Kelly Sharpenter, appeals after the trial court dismissed with prejudice counts I, III, V, and VII of her legal malpractice complaint against defendants, John Biallas, Kevin Lynch, William Wylie, and Wylie, Wheaton and Associates, P.C., also known as William J. Wylie and Associates, P.C. The dismissed counts related to a loss of consortium claim against David Jenkins, who was involved in an automobile accident with Sharpenter's ex-husband, John Orava. Sharpenter contends that the trial court erred in dismissing counts I, III, V and VII based on the statute of limitations. We affirm.

On April 30, 1981, John Orava was involved in an automobile accident with David Jenkins. Shortly after the accident, Sharpenter, the former Mrs. Orava, noticed that Orava's behavior had changed. He was abusive, irritable, mean, devious and perverted. He struck Sharpenter, and he took their daughter to southern Illinois and threatened not to return. Sharpenter suggested to Orava that he see a doctor, but he refused. Orava's behavior led to their separation and eventual divorce in May 1982.

After eventually seeing a doctor, Orava confirmed that he was injured in the automobile accident. On April 28, 1983, Orava filed a negligence action against Jenkins. He claimed that the accident caused him severe physical injuries, including brain damage. In October 1984, Sharpenter received a subpoena to have her deposition taken in Orava's personal injury case. Sharpenter claims that this was the first time she knew that Orava had suffered physical injuries as a result of the accident.

On January 28, 1985, Sharpenter filed a petition to intervene in Orava's case against Jenkins. Sharpenter claimed loss of consortium on behalf of herself as the former spouse and on behalf of her daughter, Ami. Defendants represented Sharpenter in this action. Sharpenter's petition was denied because the case was close to trial and would prejudice Jenkins.

On April 4, 1985, Sharpenter filed an independent loss of consortium action against Jenkins, with defendants as counsel, after Orava settled his claim against Jenkins for $80,000. Sharpenter's action was voluntarily dismissed on July 14, 1986, and refiled on July 10, 1987. The case was dismissed for want of prosecution on August 23, 1988.

*466 Thereafter, Sharpenter brought this legal malpractice action against defendants. Sharpenter's original complaint alleged that defendants negligently and fraudulently represented her and her daughter in the loss of consortium proceedings and the proceedings related to the sequestration and division of Orava's $80,000 settlement with Jenkins. Defendants filed motions to dismiss her complaint pursuant to sections 2-615, 2-619 and 2-619.1 of the Civil Practice Law (Ill.Rev.Stat.1991, ch. 110, pars. 2-615, 2-619, 2-619.1), arguing, inter alia, that Sharpenter's loss of consortium action was barred by the statute of limitations.

On November 1, 1991, the trial court dismissed Sharpenter's complaint because the underlying loss of consortium action was barred by the statute of limitations. The court stated that Sharpenter knew of the accident and the possibility of a cause of action at the time of the occurrence. Sharpenter moved to vacate the dismissal and sought leave to file a first amended complaint. The court granted the request to file an amended complaint, and Sharpenter filed an amended eight-count complaint.

Count I of the amended complaint alleged defendants were negligent in representing Sharpenter and her daughter in the loss of consortium action. Count II alleged defendants were negligent in representing Sharpenter and her daughter in proceedings related to the marital property division of Orava's settlement money. Count III alleged breach of contract in representing Sharpenter and her daughter in the loss of consortium action. Count IV alleged breach of contract in representing Sharpenter and her daughter in the property division proceeding. Count V alleged constructive fraud in representing Sharpenter and her daughter in the loss of consortium action. Count VI alleged constructive fraud in representing Sharpenter and her daughter in the property division proceeding. Count VII alleged fraud and deceit in representing Sharpenter in the loss of consortium action. Count VIII alleged intentional infliction of emotional distress for failing to represent Sharpenter in the loss of consortium action.

On November 26, 1991, the same day the amended complaint was filed, the trial court reconsidered its November 1, 1991, ruling in which it dismissed Sharpenter's original complaint. The trial court reiterated that the statute of limitations barred the underlying loss of consortium claim, but that only counts I, III, V and VII of the amended complaint are affected by that decision. The court stated:

"[I]t is the court's position that discovery by the principal is chargeable to a third party who relies in whole or in part upon the incident involving that principal. And even though your argument is it might be a separate cause of action, it is still dependent upon the incident that took place with respect to that principal."

Thus, the trial court dismissed, with prejudice, counts I, III, V and VII of Sharpenter's first amended complaint. Sharpenter then filed a timely notice of appeal.

Sharpenter contends that the trial court erred in holding, as a matter of law, that her loss of consortium claim was barred by the statute of limitations. She argues that the "traumatic event" rule does not apply in this situation. Sharpenter also contends that there remains a question of fact as to when she knew or should have known that her ex-husband was injured in the automobile accident. Finally, Sharpenter contends that defendants are equitably estopped from asserting the statute of limitations bar because they previously argued on behalf of Sharpenter that her action was not time barred.

Defendants contend that Orava's automobile accident was a sudden and traumatic event such that the two-year statute of limitations began running from the time of the accident. Defendants argue that Sharpenter's derivative action is also subject to the "traumatic event" rule. Defendants also contend that the facts are undisputed that Sharpenter should have reasonably known of Orava's injuries within days of the accident. Finally, defendants contend that the doctrine of equitable estoppel is inapplicable.

Attorneys are liable for damages in legal malpractice actions only when they *467 fail to exercise a reasonable degree of skill and care. (Barth v. Reagan (1990), 139 Ill.2d 399, 406, 151 Ill.Dec. 534,

Sharpenter v. Lynch, 599 N.E.2d 464, 233 Ill. App. 3d 319, 174 Ill. Dec. 380 (Ill. Ct. App. 1992).

599 N.E.2d 464 (Sharpenter v. Lynch) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Kurtson Realty, LLC v. Ring
2025 IL App (1st) 242541-U (Appellate Court of Illinois, 2025)
Brummel v. Grossman
2018 IL App (1st) 170516 (Appellate Court of Illinois, 2018)
Fabricare Equipment Credit Corp. v. Bell, Boyd & Lloyd
767 N.E.2d 470 (Appellate Court of Illinois, 2002)
Clay v. Kuhl
696 N.E.2d 1245 (Appellate Court of Illinois, 1998)
Meh v. Lh
669 N.E.2d 1228 (Appellate Court of Illinois, 1996)
Golla v. General Motors Corp.
657 N.E.2d 894 (Illinois Supreme Court, 1995)
Sille v. McCann Construction Specialties Co.
638 N.E.2d 676 (Appellate Court of Illinois, 1994)