Sorenson v. LAW OFFICES OF POEHLMANN

764 N.E.2d 1227, 327 Ill. App. 3d 706, 262 Ill. Dec. 110, 2002 Ill. App. LEXIS 123
CourtAppellate Court of Illinois
DecidedFebruary 19, 2002
Docket2-00-1313
StatusPublished
Cited by34 cases

This text of 764 N.E.2d 1227 (Sorenson v. LAW OFFICES OF POEHLMANN) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sorenson v. LAW OFFICES OF POEHLMANN, 764 N.E.2d 1227, 327 Ill. App. 3d 706, 262 Ill. Dec. 110, 2002 Ill. App. LEXIS 123 (Ill. Ct. App. 2002).

Opinion

JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, John M. Sorenson, appeals from an order of the circuit court of Lake County dismissing his lawsuit against defendants, Theodore Poehlmann and the Law of Offices of Theodore Poehlmann, pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2 — 619(a)(5) (West 2000)) on the basis that the lawsuit was barred by the statute of repose for legal malpractice actions (735 ILCS 5/13— 214.3 (West 1994)). Plaintiff contends that the trial court erred in ruling that the repose period started to run at the time of defendant’s alleged acts and omissions, because the injury they caused only occurred years later. We affirm.

Plaintiff filed his original complaint on February 18, 2000, and an amended complaint on May 31, 2000. Plaintiff alleged that in 1985 he was engaged to Rosemary Fulgenzi and he retained defendants to prepare an antenuptial agreement. No written retainer agreement was prepared, but plaintiff alleged that it was an express condition of his oral agreement with defendants that the antenuptial agreement would be determined to be enforceable. Plaintiff alleged that due to various acts and omissions by defendants, however, the agreement was not enforceable.

Plaintiff and Fulgenzi wed in 1985. An action to dissolve the marriage was initiated in 1994, and Fulgenzi challenged the antenuptial agreement as “unconscionable, vague, ambiguous, unenforceable and invalid.” On February 20, 1998, plaintiff entered into a marital settlement agreement and a judgment was entered dissolving his marriage to Fulgenzi. The marital settlement agreement required plaintiff to pay Fulgenzi more than $300,000 — substantially more than he would have been obligated to pay if the antenuptial agreement had been valid.

Defendants moved to dismiss on the basis that the lawsuit, filed in 2000, was not commenced within six years after the underlying acts and omissions, which occurred in 1985, and was therefore barred by the statute of repose in section 13 — 214.3(c) of the Limitations Act (735 ILCS 5/13 — 214.3(c) (West 1994)). The trial court granted the motion and this appeal followed.

The elements of a cause of action for attorney malpractice are an attorney-client relationship, a duty arising from that relationship, a breach of that duty, and actual damages or injury proximately caused by that breach. Romano v. Morrisroe, 326 Ill. App. 3d 26, 28 (2001). Actual damages are an essential element of the cause of action: with no damages, no cause of action has accrued. Profit Management Development, Inc. v. Jacobson, Brandvik & Anderson, Ltd., 309 Ill. App. 3d 289, 308 (1999). Here, plaintiff argues that although defendants’ acts and omissions occurred in 1985, he suffered no actual injury (and hence no cause of action accrued) until February 20, 1998, when he allegedly was forced to settle his dispute with Fulgenzi over the validity of the antenuptial agreement.

Section 13 — 214.3 of the Limitations Act provides, in pertinent part, as follows:

“(b) An action for damages based on tort, contract, or otherwise (i) against an attorney 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.
(c) *** [A]n action described in subsection (b) may not be commenced-in any event more than 6 years after the date on which the act or omission occurred.
* * *
(f) This Section applies to all causes of action accruing on or after its effective date [January 1,1991].” 735 ILCS 5/13 — 214.3(b), (c), (f) (West 1994).

Section 13 — 214.3 sets forth two independent timing requirements for legal malpractice actions: the two-year statute of limitations in subsection (b) and the six-year statute of repose in subsection (c). The statute of limitations expressly incorporates the so-called “discovery rule,” which tolls the limitations period to the time when a person knows or reasonably should know of his injury. See Goodman v. Harbor Market, Ltd., 278 Ill. App. 3d 684, 688 (1995). The discovery rule is a response to the “inherent inequities which arise if a plaintiff is unaware of otherwise actionable negligence until after the applicable statute of limitations has passed.” Goodman, 278 Ill. App. 3d at 688. The statute of repose, however, is designed to place an outer limit on the time for commencing an action. It has been stated that “[statutes of repose generally operate to curtail the ‘long tail’ of liability that results from the discovery rule” {Meyers v. Underwood, 316 Ill. App. 3d 970, 985-86 (2000)) because absent the statute of repose the statute of limitations would be “essentially open-ended, or ‘a limitations period without a limit.’ ” Meyers, 316 Ill. App. 3d at 986, quoting Goodman, 278 Ill. App. 3d at 691.

Plaintiff argues that the statute of repose’s underlying rationale — restricting the operation of the discovery rule to a definite period — cannot apply before a cause of action has even accrued. In our view, however, it makes no difference whether there is “long tail” of liability because of delay in discovering an injury or, as here, because the underlying acts and omissions only produce harm years after the fact: Statutes of repose “ ‘represent a pervasive legislative judgment that justice requires an adversary to be put on notice to defend for a specific period of time, after which “the right to be free of stale claims in time comes to prevail over the right to prosecute them [(Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 349, 88 L. Ed. 788, 792, 64 S. Ct. 582, 586 (1944))].” ’ ” Ocasek v. City of Chicago, 275 Ill. App. 3d 628, 633 (1995), quoting Cargill Ferrous International v. M/V Elikon, 857 E Supp. 45, 47 (N.D. Ill. 1994). Contrary to plaintiffs argument, a statute of repose is not related to the accrual of any cause of action. Goodman, 278 Ill. App. 3d at 691. Hence “ ‘[t]he injury need not have occurred, much less have been discovered.’ ” (Emphasis added.) Goodman, 278 Ill. App. 3d at 691, quoting Bradway v. American National Red Cross, 992 F.2d 298, 301 (11th Cir. 1993). The effect of the expiration of the repose period is that “[t]he injured party no longer has a recognized right of action, and the harm that has been done is damnum absque injura — a wrong for which the law affords no redress.” Goodman, 278 Ill. App. 3d at 691.

By its plain language, section 13 — 214.3(c) provides that an action “may not be commenced *** more than 6 years after the date on which the act or omission occurred.” 735 ILCS 5/13 — 214.3 (West 1994).

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Bluebook (online)
764 N.E.2d 1227, 327 Ill. App. 3d 706, 262 Ill. Dec. 110, 2002 Ill. App. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sorenson-v-law-offices-of-poehlmann-illappct-2002.