dissenting:
I do not agree with the majority’s decision to reverse the judgments of the courts below. In my view, the circuit judge correctly determined that the present action for legal malpractice was untimely. In addition, I do not believe that the defendant is estopped from raising the statute of limitations as a bar to the plaintiffs action. For these reasons, I would hold that the plaintiffs suit is time-barred.
Reversing the judgments of the circuit and appellate courts, as well as a previous opinion of this court (Jackson Jordan, Inc. v. Leydig, Voit & Mayer (December 4, 1992), No. 70410), the majority concludes, with virtually no analysis, that the present case raises a triable question of fact regarding the time at which the plaintiff-client should have discovered its cause of action. In reaching this result, the majority relies primarily on Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161. Although Nolan states the applicable law, the facts in Nolan are far different from the facts of the present case. Nolan involved the application of the discovery rule to a gradually developing medical condition allegedly caused by the injured person’s workplace exposure to asbestos. The court concluded that the discovery issue in that case was properly resolved as a question of fact. In contrast to Nolan, the present case reveals that the plaintiffs executive officers had ample reason by 1982 to consider whether the plaintiff had sustained an injury as a consequence of the defendant’s representations in its 1973 patent clearance letter. The present suit, filed in 1988, must therefore be judged untimely under the five-year limitations period applicable here.
Under the discovery rule, a cause of action accrues when the party knows or reasonably should know that he has been injured and that his injury was wrongfully caused. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 415; Nolan, 85 Ill. 2d at 171; Witherell v. Weimer (1981), 85 Ill. 2d 146, 156.) The circuit judge in the present case, after extensive consideration, granted Leydig’s motion for summary judgment on the statute of limitations issue. I believe that the circumstances in this case allow but one conclusion with regard to the discovery question, and that the circuit judge properly determined, as a matter of law, that Jackson’s claim for legal malpractice could have accrued no later than June 28, 1982, when Plasser made clear its intention to pursue a patent infringement suit against Jackson.
In 1980 the results of the litigation between Plasser and Canron, Inc., were explained to Jackson executives, who then knew that Plasser’s patent was valid and that a Canron product similar to Jackson’s own machines had been found to infringe on the patent. The affidavits and depositions submitted to the circuit court show that Jackson’s president, Daniel Donahue, and one of the company’s other senior executives, James Anderson, knew or should have known that the company faced a patent infringement problem. Both executives were concerned in 1980 that Plasser might try to sue Jackson, as it had Canron, and understood that the Canron machines found to have infringed on the Plasser patent were similar to Jackson’s own machines.
Daniel Donahue acknowledged in his deposition that the company was concerned as early as 1980 that it might become involved in litigation with Plasser, which would place at risk the company’s large investment in its new machines. One of Leydig’s partners wrote to Jackson in August 1980, warning that Plasser, if it prevailed against Canron, might choose next to "roll the dice” against Jackson. Donahue addressed the company’s concerns in his deposition:
"Q. What did you understand Mr. Mayer to mean by roll the dice?
A. We could be sued.
Q. This advice of potential litigation against your company caused you concern in 1980, did it not, sir?
A. Certainly.
Q. You were concerned, were you not, because your company had invested substantial sums of money in the production of its Model 6000, 6500 and 7000; isn’t that true?
A. It had built a business around these machines, yes.
Q. And you were likewise concerned because your company had spent substantial sums of money in the acquisition and fitting of the Baxter Springs!,] Kansas!,] facility?
A. That was part of the investment, yes.”
James Anderson, in his deposition, voiced similar concerns. Asked whether his company was worried in 1980 about the implications of the Plasser-Canron litigation on Jackson, Anderson replied in the affirmative. He explained that the reason for the concern was "[t]hat we might have infringed on that same patent.” Anderson understood also that his company’s machines were similar to the devices involved in the other litigation:
"Q. You believe that [the Leydig firm’s] May 23, 1973[J letter was a non-infringement opinion, correct?
A. Correct, yes.
Q. As it related to your proposed Model 6000 machine, correct?
A. Correct.
* * *
Q. And you knew that there were substantial similarities between the Canron Mark 3 and your Model 6000, correct, in 1980?
A. Correct.”
In 1980, the Jackson executives should have realized that the company faced a patent infringement problem, contrary to Leydig’s 1973 patent clearance letter, which had assured Jackson that its new machines would face no patent infringement problems, and which had failed to mention Plasser’s patent at all. The Jackson executives’ concerns were simply borne out two years later, in June 1982, when Plasser sent Jackson the letter asserting the patent holder’s rights and warning Jackson of the infringement claim. Plasser’s threatened action was not merely a nuisance suit, but one by the holder of a valid patent that Leydig had failed to disclose in its 1973 letter. The Jackson executives knew that Plasser had prevailed in its earlier action against Canron and that the Canron track maintenance machine found to have infringed on the Plasser patent was similar to Jackson’s own devices.
By 1980, and certainly by 1982, no reasonable person could have failed to realize the error in Leydig’s assurance that Jackson would face no patent infringement problems. I would conclude, as did the courts below, that the point of discovery in this case was reached no later than June 1982, when Plasser directly notified Jackson of the patent holder’s impending claim. It was not necessary for maintenance of its malpractice action that Jackson have known exactly in what way the Leydig firm had been negligent. For purposes of the discovery rule, it does not matter whether Leydig had located the patent but misanalyzed it, or whether the firm had failed to consider the patent at all. It was only necessary that Jackson have realized that it was facing an infringement problem as a result of its manufacture of the machines; on this record, it is clear that Jackson was in possession of that knowledge as early as 1980, and surely by 1982.
Indeed, Jackson acknowledges that it filed the present action before any of its executives actually knew that the law firm had failed to examine the Plasser patent in 1973. Under the discovery rule, of course, a statute of limitations may begin to run even though the plaintiff lacks actual knowledge of the precise manner in which the defendant was negligent. As Nolan explained, "[I]f knowledge of negligent conduct were the standard, a party could wait to bring an action far beyond a reasonable time when sufficient notice has been received of a possible invasion of one’s legally protected interests.” (Nolan, 85 Ill. 2d at 170-71.) Such a result also would be "contrary to the underlying purpose of statutes of limitations, which is to 'require the prosecution of a right of action within a reasonable time to prevent the loss or impairment of available evidence and to discourage delay in the bringing of claims.’ [Citations.]” Nolan, 85 Ill. 2d at 171.
I am aware, of course, of considerations generally relevant to the attorney-client relationship that might counsel in favor of later discovery of a cause of action for legal malpractice. The relationship is a fiduciary one, and a client is entitled to repose trust and confidence in the attorney’s work. The time at which trust and confidence appropriately turn to doubt cannot be defined with precision, and that determination will necessarily depend on the circumstances of the particular case. The circuit judge in the proceedings below was certainly sensitive to this issue. The judge believed, however, that the five-year limitations period was sufficiently lengthy to accommodate these concerns. The judge stated:
"That’s why the courts have said five years for legal malpractice, five years for accountant’s malpractice, because it’s a tort. It’s not a contract claim. We give you five years. That gives you five years to fight it out over here and then you can sue. But you’ve got to do it within five years.”
The circuit judge correctly believed that in the present case the time for discovery could have occurred no later than June 1982, when Plasser formally advised Jackson of the patent holder’s intention to file suit.
I must also disagree with the majority’s further conclusion that Leydig is now equitably estopped from asserting the statute of limitations defense. Leydig is "estopped from asserting the limitations bar if the plaintiff’s failure to act within the statutory period results from reasonable reliance on the defendant’s conduct or representations.” (Witherell v. Weimer (1987), 118 Ill. 2d 321, 330; see Dill v. Widman (1952), 413 Ill. 448, 455-56.) The conduct and representations cited by Jackson in support of this contention are Leydig’s statements regarding the strength of Plasser’s claim of infringement and possible defenses to that claim. Jackson points to the law firm’s assurances, made in the wake of the Plasser-Canron litigation and later, during the early stages of Jackson’s own declaratory judgment action against Plasser, that Jackson would prevail. Jackson notes that the law firm questioned the soundness of the Plasser-Canron decision, mentioned possible defenses the client might assert, and insisted that the Plasser patent was actually invalid.
The negligence alleged in the present case involves the Leydig firm’s failure, in 1973, to call to Jackson’s attention the existence of Plasser’s patent and advise the company that its own machines, if not redesigned, might face a possible patent infringement claim by the patent holder. Thus, the statements cited by the plaintiff should not have induced the client to forgo its malpractice claim against its attorneys for the error of their earlier opinion. Leydig’s statements could only have confirmed Jackson’s realization that the company faced an infringement problem, and one that was no less real for perhaps being remediable.
For the reasons stated, I agree with the courts below that Jackson should have discovered its potential cause of action against Leydig no later than June 1982, when the company received Plasser’s letter asserting its patent rights. In addition, I do not believe that Leydig is equitably estopped from asserting the statute of limitations defense. I would conclude, as did the circuit and appellate courts, that the present action, brought more than five years after June 1982, must be considered untimely under the applicable statute of limitations.