Docket No. 105459.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
MARIE WACKROW, Appellant, v. FREDERICK C. NIEMI,
Appellee.
Opinion filed November 20, 2008.
JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Plaintiff, Marie Wackrow, filed a complaint for legal malpractice
against defendant, Frederick C. Niemi. The circuit court of Cook
County dismissed plaintiff’s complaint as time-barred under section
13–214.3(d) of the Code of Civil Procedure (735 ILCS 5/13–214.3(d)
(West 1994)). The appellate court affirmed the trial court’s judgment.
No. 1–06–1556 (unpublished order under Supreme Court Rule 23).
This court then allowed plaintiff’s petition for leave to appeal. 210 Ill.
2d R. 315(a).
BACKGROUND
The following facts are alleged in plaintiff’s complaint. We accept
those allegations as true for purposes of our review of the rulings on
defendant’s motion to dismiss. Calloway v. Kinkelaar, 168 Ill. 2d
312, 325 (1995). In March 1993, defendant prepared a living trust for
plaintiff’s brother, James D. Woods. On April 15, 2002, defendant
prepared an amendment to the living trust. That amendment provided:
“3.21 Gift of Specific Real Estate. I give my residence
commonly known as 933 Oakwood Drive, Westmont, Illinois
to my sister, Marie Wackrow. In the event my residence is
sold prior to my death, I give my sister, Marie Wackrow, the
sum of $300,000[.]
I direct my trustee to convey the real estate within two
months of my death subject to all taxes, assessments, and
covenants and restriction of record.
I republish and restate all other terms of my trust and
subsequent amendments.”
James Woods died in August 2002. Letters of office were issued
and Woods’ will was admitted to probate on October 23, 2002.1 On
April 13, 2003, plaintiff made a claim against Woods’ estate for the
property promised to her under the amendment to Woods’ living
trust. The estate did not deliver the property or the $300,000 to
plaintiff. On October 24, 2003, the probate court denied plaintiff’s
claim against the estate.2 Plaintiff then filed an attorney malpractice
1
This information is taken from the appellate court opinion. The only
reference in the record to letters of office and the date that Woods’ will was
admitted to probate is in defendant’s memorandum in support of his motion
to dismiss filed in the circuit court. Plaintiff’s complaint contained no
allegations concerning the letters of office or when Woods’ will was
admitted to probate. Defendant’s memorandum noted that a probate action
was opened in the circuit court of Cook County, and that the court could
take judicial notice of documents in the public record in considering a
section 2–619 motion to dismiss, citing Village of Riverwoods v. BG
Limited Partnership, 276 Ill. App. 3d 720 (1995).
2
Plaintiff’s complaint did not set forth the reason why the estate failed
to deliver the property to plaintiff, or the reason why the court denied
plaintiff’s claim against the estate. Based upon the facts alleged, it appears
that plaintiff’s claim to the property was denied because title to the property
was not in Woods’ name individually. Further, plaintiff presumably was not
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complaint against defendant on December 27, 2004, alleging that
defendant failed to exercise reasonable care in creating the trust
amendment, because a sufficient title search would have revealed that
the actual owner of the property was not Woods individually, but
another trust.
Defendant filed a motion to dismiss plaintiff’s complaint arguing
that the complaint was not timely under section 13–214.3(d), because
the complaint was not brought within the time for filing claims
against the estate or contesting the will. The trial court agreed and
dismissed plaintiff’s complaint with prejudice. The trial court
thereafter denied plaintiff’s motion for reconsideration.
The appellate court affirmed. No. 1–06–1556 (unpublished order
under Supreme Court Rule 23). The appellate court held that its prior
decision in Poullette v. Silverstein, 328 Ill. App. 3d 791 (2002), was
dispositive. Poullette held that where a will has been admitted to
probate, or letters of office have issued, section 13–214.3(d)
establishes the legislature’s intent to terminate the possibility of
liability after a defined period of time–within the time to file a claim
against the estate or to contest the validity of a will, regardless of
whether the plaintiff’s cause of action has accrued. Poullette, 328 Ill.
App. 3d at 796. The appellate court noted that in this case, letters of
office were issued and Woods’ will was admitted to probate on
October 23, 2002. No. 1–06–1556 (unpublished order under Supreme
Court Rule 23). Based upon Poullette, the appellate court held that,
because plaintiff’s complaint was not filed within the time for filing
claims against Woods’ estate or to contest the validity of his will, the
trial court properly dismissed plaintiff’s claim as time-barred under
section 13–214.3(d). No. 1–06–1556 (unpublished order under
Supreme Court Rule 23).
ANALYSIS
Defendant’s motion to dismiss plaintiff’s complaint as time-
barred was based upon section 2–619(a)(5) of the Code of Civil
Procedure (735 ILCS 5/2–619(a)(5) (West 2004)). A section 2–619
entitled to the $300,000 because Woods’ property was not sold prior to his
death.
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motion to dismiss admits as true all well-pleaded facts, along with all
reasonable inferences that can be gleaned from those facts. Porter v.
Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008). When ruling
on a section 2–619 motion to dismiss, a court must interpret all
pleadings and supporting documents in the light most favorable to the
nonmoving party. Porter, 227 Ill. 2d at 352. This court’s review of a
section 2–619 dismissal is de novo. Porter, 227 Ill. 2d at 352.
The statute at issue, section 13–214.3 of the Code of Civil
Procedure, provides, in pertinent part:
“(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 or (ii)
against a non-attorney employee arising out of an act or
omission in the course of his or her employment by an
attorney to assist the attorney in performing 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) Except as provided in subsection (d), an 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.
(d) When the injury caused by the act or omission does
not occur until the death of the person for whom the
professional services were rendered, the action may be
commenced within 2 years after the date of the person’s death
unless letters of office are issued or the person’s will is
admitted to probate within that 2 year period, in which case
the action must be commenced within the time for filing
claims against the estate or a petition contesting the validity
of the will of the deceased person, whichever is later, as
provided in the Probate Act of 1975.” 735 ILCS 5/13–214.3
(West 1994).3
3
Public Act 89–7, eff. March 9, 1995, partially amended section
13–214.3 by repealing subsection (d). However, the public act was held
unconstitutional in its entirety by this court in Best v. Taylor Machine
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This court addressed section 13–214.3(d) in Petersen v. Wallach,
198 Ill. 2d 439 (2002). At issue in Petersen was whether section
13–214.3(d) applied only to claims arising from the distribution of
assets under the Probate Act, or whether section 13–214.3(d) also
applied to claims involving assets passing independent of the Probate
Act. In addressing the issue, this court held that “the language of
section 13–214.3(d) unambiguously supports its application to all
cases when the alleged injury caused by the attorney’s act or omission
does not occur until the death of the person for whom the professional
services were rendered.” Petersen, 198 Ill. 2d at 445. This court
explained that, under the statute, a plaintiff has two years to file a
claim unless letters of office are issued or the will is admitted to
probate. Petersen, 198 Ill. 2d at 445. If either of those two events
occur during the two-year period following the death of the client,
“any action must then be commenced in accordance with time
limitations set out in the Probate Act.” Petersen, 198 Ill. 2d at 445.
Under the Probate Act, the applicable time limit is no later than
the time for filing claims against the estate (see 755 ILCS 5/18–3
(West 1994)) or the time for filing a petition contesting the validity
of the will (755 ILCS 5/8–1(a) (West 1994)). Petersen, 198 Ill. 2d at
445. A claim against the estate may be filed on or before the date
stated in the publication notice, which date shall not be less than six
months from the date of the first publication, or three months from
the date of mailing or delivery of the notice, whichever is later (see
755 ILCS 5/18–3 (West 1994)). Petersen, 198 Ill. 2d at 445-46. A
petition contesting the validity of a will must be filed within six
months of its admission to probate. 755 ILCS 5/8–1(a) (West 1994).
This court explained, then, that the lone inquiry made by a court when
determining whether section 13–214.3(d) is applicable is simply
whether the injury caused by the malpractice occurred upon the death
of the client. Petersen, 198 Ill. 2d at 446.
Based upon Petersen, then, we must determine whether the injury
caused by the malpractice in this case occurred upon the death of
Works, 179 Ill. 2d 367 (1997). To date, the General Assembly has not
addressed our holding in Best with regard to section 13–214.3. The text of
that section therefore remains in its form prior to our decision in Best.
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Woods, the client. Plaintiff’s amended complaint alleged that Woods
retained defendant to prepare the amendment to his living trust giving
plaintiff his property in Westmont or, if the property was sold before
his death, giving plaintiff $300,000. Plaintiff alleged that defendant
failed to exercise reasonable care in the preparation of the
amendment, and failed to conduct a sufficient title search to
determine that the actual owner of the property was a land trust in
which Woods had the sole beneficial interest, and not Woods
individually. Plaintiff alleged that defendant breached his duty to
Woods to prepare a trust document that accomplished Woods’ intent.
Finally, plaintiff alleged that, due to defendant’s failure to determine
the nature of Woods’ ownership interest and his failure to prepare a
trust document that accomplished Woods’ intentions, plaintiff was
injured.
Based upon the preceding allegations, it is clear that the injury in
this case did not occur until the death of Woods. Plaintiff alleges legal
malpractice in the drafting of the amendment to Woods’ trust.
Because Woods could have revoked that amendment or changed the
beneficiary prior to his death, the injury did not occur until Woods’
death. Consequently, section 13–214.3(d) applies to plaintiff’s claim.
Plaintiff, however, denies that the injury caused by defendant’s
legal malpractice occurred upon the death of Woods. Plaintiff claims
that defendant’s professional services were rendered for both Woods
and for plaintiff, as a third-party beneficiary. Plaintiff argues that
because professional services were rendered on her behalf as a third-
party beneficiary, and because she is still alive, section 13–214.3(d)
does not apply. Rather, the injury caused by plaintiff’s legal
malpractice occurred when the administrator of Woods’ estate denied
her claim.
There is no merit to this claim. As discussed, section 13–214.3(d)
applies to plaintiff’s claim because the injury caused by defendant’s
legal malpractice did not occur until the death of Woods. Section
13–214.3(d) looks to “the death of the person for whom the
professional services were rendered.” (Emphasis added.) 735 ILCS
5/13–214.3(d) (West 1994). Woods was the person for whom the
professional services were rendered. As defendant notes, to accept
plaintiff’s argument would eviscerate the repose provision set forth
in section 13–214.3(d). Applying plaintiff’s reasoning, no claim
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against an estate would be barred until the death of each intended
beneficiary of a will or trust. Such a result would be contrary to the
legislative intent behind a statute of repose. A “period of repose gives
effect to a policy different from that advanced by a period 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 cause of action.” Mega v. Holy Cross Hospital, 111
Ill. 2d 416, 422 (1986). A period of repose is not intended to expand
the possibility of liability indefinitely. Based upon the plain language
of the statute, the injury caused by defendant’s legal malpractice in
this case occurred upon the death of Woods, and not when plaintiff’s
claim against Woods’ estate was denied.
Plaintiff then argues that her complaint was timely because the
statute of repose did not apply in this case, so that the exception to the
statute of repose set forth in section 13–214.3(d) could not apply.
Plaintiff notes that section 13–214.3 provides for a two-year statute
of limitations, followed by a six-year statute of repose. According to
plaintiff, the repose provision in section 13–214.3(d) is triggered only
when the six-year repose period has expired and would otherwise bar
a plaintiff’s claim for legal malpractice. Plaintiff reasons that because
her complaint was filed within the two-year statute of limitations for
legal malpractice, neither the six-year statute of repose nor the
subsection (d) repose period applied to her claim.
In support of this argument, plaintiff cites our decision in
Petersen, 198 Ill. 2d 439 (2002). Specifically, plaintiff cites
Petersen’s statement that, “[c]onsidering its language, section
13–214.3(d) was simply intended to create an exception to the six-
year repose period for attorney malpractice actions where the alleged
injury does not occur until the death of the client.” Petersen, 198 Ill.
2d at 447-48. Plaintiff reads the preceding statement as holding that
section 13–214.3(d) creates an exception to the statute of repose that
applies only when the six-year repose period has run.
Plaintiff has misinterpreted our statement in Petersen. Section
13–214.3(d) does create an exception to the six-year repose period for
attorney malpractice actions where the alleged injury does not occur
until the death of the person for whom professional services were
rendered. However, that exception is not in addition to the two-year
statute of limitations and the six-year statute of repose. Rather, the
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exception applies instead of the two-year statute of limitations and the
six-year statute of repose. As the appellate court in Poullette correctly
held, “[n]othing in the statute conditions the application of subsection
(d) on whether the repose period in subsection (c) has expired.”
Poullette, 328 Ill. App. 3d at 795.
We recognize that the effect of the section 13–214.3(d) exception
may shorten the limitation period for legal malpractice complaints
and may mean that a plaintiff’s action is barred before she learns of
her injury. However, the fact that a repose provision “may, in a
particular instance, bar an action before it is discovered is an
accidental rather than necessary consequence.” Mega, 111 Ill. 2d at
424. As Poullette recognized, where a “will has been admitted to
probate or letters of office are issued, the legislature intended to
terminate the possibility of liability after a defined period of time,
regardless of whether plaintiff’s cause of action has accrued.”
Poullette, 328 Ill. App. 3d at 796.
It follows, then, that under the statute, plaintiff had two years to
file her complaint against defendant unless letters of office were
issued or the will was admitted to probate. Because letters of office
were issued and Woods’ will was admitted to probate on October 23,
2002, plaintiff was required to file her complaint within the time for
filing claims against the estate or the time for filing claims against the
estate or the time for filing a petition contesting the validity of the
will.4 A petition contesting the validity of a will must be filed within
4
With regard to filing claims against the estate, the Probate Act provides
that it is the duty of the representative to publish once each week for three
successive weeks, and to mail or deliver to each creditor of the decedent,
a notice stating that claims may be filed on or before the date stated in the
notice, which date shall not be less than six months from the date of the
first publication, or three months from the date of mailing or delivery of the
notice, whichever is later. 755 ILCS 5/18–3 (West 1994). As noted, there
was no information in plaintiff’s pleadings or in the record on appeal
concerning the letters of office or the date for filing claims against the
estate. Plaintiff, as appellant, had the burden of presenting a sufficiently
complete record of the proceedings at trial to support a claim of error and,
in the absence of such a record on appeal, a reviewing court will presume
that the order entered by the trial court was in conformity with the law and
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six months of its admission to probate. 755 ILCS 5/8–1(a) (West
1994). Accordingly, plaintiff had until April 23, 2003, to file her
complaint. Because plaintiff’s complaint was not filed until
December 27, 2004, the trial court properly dismissed plaintiff’s
complaint as untimely, and the appellate court properly affirmed that
dismissal.
CONCLUSION
For the reasons set forth above, we affirm the appellate court’s
judgment.
Appellate court judgment affirmed.
had a sufficient factual basis. Midstate Siding & Window Co. v. Rogers, 204
Ill. 2d 314, 319 (2003). Any doubts arising from the incompleteness of the
record are resolved against the appellant. Midstate, 204 Ill. 2d at 319.
Consequently, because the record contains no information indicating the
date for filing claims against the estate, we will presume that the circuit
court correctly ruled that plaintiff’s complaint against defendant was not
filed within that time frame. In any event, we note that plaintiff has never
challenged, in this court or in the appellate court, the finding that her
complaint was not filed within the time for filing claims against the estate.
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