SIXTH DIVISION
October 6, 2006
No. 1-05-0491
CATHERINE TUCHOWSKI, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. )
)
ELIZABETH M. ROCHFORD, ) Honorable
) Jeffrey Lawrence,
Defendant-Appellee. ) Judge Presiding
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.
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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
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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
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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,
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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
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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. [Citation.] *** [The
plaintiff] acted reasonably in relying on [his
attorney] and the real estate agents to review the
documents and identify problems." Breck, 910 P.2d at
605-06.
Illinois courts have reasoned similarly. In Melvin State
Bank v. Crowe, 97 Ill. App. 2d 82 (1968), the defendant invested
money in a business Crowe ran and she later signed a guarantee
for a loan Crowe took from the plaintiff bank. The bank sued
Crowe and the defendant to recover the loan. The defendant
countersued to recover her investment in the business. The
defendant testified that she did not read the papers she signed
at the bank concerning the investment and the guarantee. Crowe,
97 Ill. App. 2d at 89. She relied on the bank's representations
concerning the value of the investment and the need to sign the
other papers. Crowe, 97 Ill. App. 2d at 95. The trial court
entered a judgment in favor of the bank on the guarantee and on
the countersuit for the lost investment.
On appeal the bank argued that the defendant could not avoid
the effect of the guarantee because she had "a full opportunity
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to read the instrument." Crowe, 97 Ill. App. 2d at 96. The
appellate court answered:
"[A] false representation by an experienced banker ***
is calculated to disarm an inexperienced person. ***
[I]t affirmatively appears that the judgment note was
not explained to [the defendant]. *** [I]t is obvious
that she did not understand the matter of the guarantee
***." Crowe, 97 Ill. App. 2d at 96.
The court reversed the judgment for the bank on the guarantee and
on the countersuit, and remanded for a new trial to focus on the
issue of the bank's fiduciary duties to the defendant. Crowe, 97
Ill. App. 2d at 97-100.
Here, Rochford had fiduciary duties as Tuchowski's attorney.
In re Marriage of Pagano, 154 Ill. 2d 174, 185 (1992).
Tuchowski alleged that she did not read the deed and other
documents she signed at the closing. She relied on Rochford when
she signed those documents. Rochford told her to sign quickly
because Rochford needed to attend another closing. After the
closing Tuchowski did not look for the documents until September
2002, when she asked Rochford about the status of the third lot.
She did not discover that she had sold the third lot until she
obtained copies of the closing documents after September 3, 2003.
She filed this lawsuit in November 2003.
Rochford stresses that when Tuchowski signed the deed she
signed only three lines below a line that showed three separate
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index numbers for the deeded property. Rochford argues that
Tuchowski must have seen the line and she must have deduced that
the deed gave the Mercks title to all three lots. We agree that
the deed can support an inference that Tuchowski should have
known, when she signed the deed, that the deed referred to all
three lots. However, we find that some rational triers of fact
might not reach that same inference from the evidence as a whole.
Taking into account the size of the typeface, Tuchowski's age
and sophistication, and the time constraints Rochford placed on
her, a trier of fact may believe that Tuchowski either did not
see the line at issue, or she did not understand the special
significance of the sequence of digits, slashes, dashes and
spaces on that line. We cannot say, as a matter of law, that
Tuchowski should have known, before November 2001, that contrary
to her explicit request, Rochford added the third lot to the
property sold to the Mercks. We find that the allegations and
the affidavit could support a finding that Tuchowski did not know
of the malpractice before November 2001.
Rochford contends that we should affirm the judgment in her
favor, without considering the statute of limitations, because
Tuchowski did not adequately allege that Rochford breached her
duties to Tuchowski, or that the breach proximately caused
damages. See Sorenson v. Law Offices of Theodore Poehlmann, 327
Ill. App. 3d 706, 707 (2002). Tuchowski attached to her
complaint a contract in which the Mercks agreed to pay Tuchowski
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$575,000 in exchange for the two lots on which her house stood.
She told Rochford she wished to sell only the two lots to the
Mercks. Tuchowski alleged, with supporting documents, that
Rochford altered the contract, without providing notice to
Tuchowski, to provide for the sale of all three lots for the same
price the Mercks had offered for the two lots. We find the
allegations sufficient to support an inference that Rochford
breached her duties as Tuchowski's attorney and she breached her
contract to represent Tuchowski's interests.
Tuchowski alleged that her neighbors offered her $125,000
for the third lot, and Rochford obtained nothing from the Mercks
in exchange for the third lot. We find the allegations
sufficient to support an inference that the breach of duties as a
lawyer, and of the contract to represent Tuchowski, caused
Tuchowski to lose $125,000. The complaint sufficiently states a
cause of action for legal malpractice and breach of contract.
The parties offered conflicting evidence concerning their
interactions before the sale. A trier of fact who found
Tuchowski credible could conclude that Tuchowski did not know
before November 2001 that Rochford included the third lot in the
sale of Tuchowski's property to the Mercks. The trier of fact
might find that Tuchowski's reliance on her attorney provided
reasonable grounds for failing to read the documents she signed
at the closing. Thus, the trier of fact could conclude that
Tuchowski filed her claims against Rochford within the period
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permitted by the statute of limitations. As the complaint
sufficiently states claims for legal malpractice and breach of
contract, we reverse the judgment entered in favor of Rochford
and we remand for further proceedings in accord with this
opinion.
Reversed and remanded.
FITZGERALD SMITH, P.J., and O'MALLEY, J., concur.
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