Tuchowski v. Rochford

857 N.E.2d 829, 368 Ill. App. 3d 441, 306 Ill. Dec. 430, 2006 Ill. App. LEXIS 912
CourtAppellate Court of Illinois
DecidedOctober 6, 2006
Docket1-05-0491
StatusPublished
Cited by2 cases

This text of 857 N.E.2d 829 (Tuchowski v. Rochford) 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
Tuchowski v. Rochford, 857 N.E.2d 829, 368 Ill. App. 3d 441, 306 Ill. Dec. 430, 2006 Ill. App. LEXIS 912 (Ill. Ct. App. 2006).

Opinion

JUSTICE McNULTY

delivered the opinion of the court:

Catherine Tuchowski sold her home in November 2000. In November 2003 she sued Elizabeth Rochford, the attorney who represented her at the closing on her home, for legal malpractice. Tuchowski claimed that she did not discover until 2003 that Rochford had included in the sale of the home a largely vacant adjacent lot that Tuchowski hoped to sell separately. The trial court held that Tuchowski should have known at the time of the sale that she had sold the vacant lot because the closing documents Tuchowski signed included references to that lot. We hold that Tuchowski adequately alleged facts from which a trier of fact could infer that Tuchowski reasonably relied on her attorney when she signed the documents without reading them. Because we cannot say as a matter of law that Tuchowski should have known of the sale more than two years before she filed her complaint, we reverse the judgment entered in favor of Rochford and remand for further proceedings on the complaint.

BACKGROUND

When Tuchowski bought a condominium in 1999, she hired Rochford to represent her. Rochford also represented Tuchowski’s daughter when the daughter sold some real estate. In 2000 Tuchowski sought to sell a house she owned in Chicago. Again she asked Rochford to represent her. Tuchowski owned three adjoining lots. The house stood on two of the lots, while the third lot held only a shed and an outdoor grill. In September 2000 Bridget and Brock Merck signed a contract to purchase, for $575,000, the house and the two lots on which the house stood. In a letter to the Mercks’ attorney, Rochford offered to amend the contract to provide for the sale of all three lots. The letter does not indicate that Rochford sent any copy to Tuchowski.

On November 30, 2000, Tuchowski signed all the forms necessary to close the sale of her house. She signed a trustee’s deed for the property. Three lines above her signature, the deed includes a single line that reads, in small print:

“Permanent Real Estate Index Number(s): 10-32-120-034 / 10-32-120-035 / 10-32-120-036.”

In October 2001 Tuchowski named Rochford successor trustee to take control of Tuchowski’s assets in trust upon Tuchowski’s death.

In September 2002 Tuchowski asked Rochford about the status of the third lot of her property, the one which stood nearly vacant. Tuchowski also asked for a copy of the sales contract for the other two lots. A year later, on September 3, 2003, Rochford wrote to Tuchowski that she no longer had a copy of the sales contract. Tuchowski obtained a copy of the contract and the deed from another source.

On November 24, 2003, Tuchowski sued Rochford for legal malpractice and breach of contract. Two days later Tuchowski amended her trust to remove Rochford as successor trustee.

Rochford moved to dismiss the complaint as untimely. The trial court granted the motion but gave Tuchowski leave to amend. In September 2004 Tuchowski filed a second amended complaint in which she alleged that Rochford knew that the owners of the property next to the nearly vacant lot had offered Tuchowski $125,000 for that lot. Tuchowski was 77 years old when she closed on the sale of her property in November 2000. At the closing Rochford directed Tuchowski to sign all the documents, including the deed, to complete the transaction as quickly as possible, so that Rochford could go to a closing on another property. Tuchowski alleged that she did not read the deed or other documents. She relied on Rochford.

Rochford supported her motion to dismiss the second amended complaint with her own affidavit. She swore that Tuchowski asked her to amend the contract for sale of the real estate to include the nearly vacant lot. Tuchowski answered with an affidavit in which she swore that she specifically instructed Rochford to limit the sale to the Mercks to the two lots with the house. She never told Rochford to alter the contract to include the third lot. She told Rochford that other buyers had offered her $125,000 for the third lot.

The trial court dismissed the second amended complaint with prejudice, pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2 — 619(a)(5) (West 2000)), because the court found that Tuchowski failed to file her complaint within two years of the date on which she should have known that Rochford had altered the contract to make it a sale of all three lots. See 735 ILCS 5/13— 214.3 (West 2000). The court said:

“[Tuchowski] was at the closing, the closing documents are there, they describe the property that was being sold. ***
*** It is her responsibility to look at the documents.”

Tuchowski now appeals.

ANALYSIS

We review de novo the dismissal of the complaint under section 2—619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2—619(a)(5) (West 2000)). Paszkowski v. Metropolitan Water Reclamation District of Greater Chicago, 213 Ill. 2d 1, 6 (2004). We interpret all pleadings and supporting documents in the light most favorable to Tuchowski, the nonmoving party. Paszkowski, 213 Ill. 2d at 5. The court should deny the motion to dismiss unless the court can say, as a matter of law, that the plaintiff should have known of her injury and wrongful causation more than two years before she filed her lawsuit. 735 ILCS 5/13 — 214.3 (West 2000); Weidman v. Wilkie, 277 Ill. App. 3d 448, 456 (1995).

Usually courts hold parties responsible for knowing the contents of documents they have signed. See Breckenridge v. Cambridge Homes, Inc., 246 Ill. App. 3d 810, 819 (1993). However, under certain circumstances, especially in cases involving fiduciary relationships (see Prueter v. Bork, 105 Ill. App. 3d 1003, 1006 (1982)), courts have excused ignorance of the content of such signed documents.

In Breck v. Moore, 910 P.2d 599 (Alaska 1996), the plaintiff sued the attorney who represented him when the plaintiff purchased his home in 1981. In the complaint filed in 1990, the plaintiff alleged that the attorney failed to notify him of significant restrictions on the title to the property. The attorney moved to dismiss the complaint based on the statute of limitations. The trial court denied the motion, finding that the plaintiff adequately alleged that he discovered the restrictions in 1989. On appeal the attorney again argued that the plaintiff’s receipt of closing documents in 1981 put him on notice of the restrictions shown in those documents. The court held:

“The discovery rule takes into account the sophistication of the plaintiff in the particular area of knowledge. [Citations.] *** [I]t might be reasonable for an insured to rely on an insurance broker’s statements about the scope of coverage, rather than reading and interpreting the detailed language of the exclusionary clauses.

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Bluebook (online)
857 N.E.2d 829, 368 Ill. App. 3d 441, 306 Ill. Dec. 430, 2006 Ill. App. LEXIS 912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tuchowski-v-rochford-illappct-2006.