specially concurring:
I agree with the majority conclusion to reverse the dismissal. The issue in this case is the application of section 13 — 214.3 (735 ILCS 5/13 — 214.3 (West 1994)). In turn the relevant inquiry is when, if at all, plaintiff suffered her injury.
I submit that plaintiff suffered multiple injuries as a result of the quitclaim deed executed on May 23, 1997. Plaintiff alleges that the deed was intended to give her an interest in the marital home, specifically claiming that the deed was intended to transfer a property interest from Wilbert to plaintiff and Wilbert as joint tenants. Thus, the quitclaim deed should have conveyed to her a one-half undivided interest when the deed was executed and should have conveyed to her Wilbert’s one-half undivided interest upon his death. The failure of the deed to accomplish this created at least these two injuries. Defendant also notes that plaintiff was injured when she contributed to the payment of the mortgage on property in which she had no ownership interest. I do not disagree that monetary damage was yet another injury that resulted from the failure of the deed to convey the property as plaintiff alleges. However, the operative question remains: when did these injuries occur?
In Peterson v. Wallach, 314 Ill. App. 3d 823 (2000), the plaintiff, the sole beneficiary of her mother’s estate, brought an action in 1998 alleging essentially that the defendant committed malpractice because he negligently rendered estate planning advice to the plaintiff’s mother. Specifically, in 1989 Ardele, the plaintiffs mother, engaged the defendant’s services to handle the administration of her husband’s estate and to recommend estate planning procedures that would minimize death taxes on her estate and maximize the value of the assets that the plaintiff would receive upon Ardele’s death. Ardele relied on the defendant’s advice and in 1990 and 1991 made substantial and taxable inter vivos gifts to the plaintiff. Upon Ardele’s death, those gifts were added back into the estate for purposes of calculating death taxes, which were thereby increased in excess of $200,000. The injury argued on appeal was the increase in death taxes; however, the gifts made in reliance on the defendant’s advice were taxable and arguably also an injury. The appellate court reversed the trial court’s dismissal, finding that the exception to the statute of repose applied and that the action was not barred. The injury occurred upon the death of Ardele. “Accordingly, where any injury caused by the act or omission does not occur until the death of the person for whom professional services were rendered, section 13 — 214(d) is applicable regardless of whether the assets are subject to distribution through probate proceedings, an inter vivos trust, or some other mechanism.” (Emphasis added.) Peterson, 314 Ill. App. 3d at 827.
As plaintiff here candidly admitted in the trial court, an injury occurred in 1997 when, as a result of the alleged negligence, the deed did not convey to her a one-half undivided interest in the marital residence. Any claim plaintiff may have had for this injury has long been extinguished by expiration of the statute of limitations and statute of repose. This is so, as defendant correctly argues, even though plaintiff may not have discovered the negligent acts until after the period of repose had elapsed. However, plaintiff could not sustain the injury of her loss of Wilbert’s one-half undivided interest in the property until Wilbert’s death. Under the deed, his one-half undivided interest in the property could not pass to plaintiff until his death; thus, this injury occurred at Wilbert’s death. Plaintiff has not changed her position from the trial court to appellate review.
The exception to the statute of repose is found in section 13— 214.3(d), which provides: “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 ***.” 735 ILCS 5/13— 214.3(d) (West 1994). Plaintiff has clearly alleged that the injury was caused by defendant’s act or omission, that the failure of Wilbert’s one-half undivided interest to pass to plaintiff upon his death did not occur until his death, and that the professional services were rendered for Wilbert. Plaintiffs action was commenced within two years of Wilbert’s death. Thus the trial court erred in dismissing the complaint on the basis of the statute of repose.
In his petition for rehearing, defendant urges clarification on the issue of intent of the parties. I agree with the majority view that the issue of intent was not the basis for the trial court’s oral findings nor was it included in the order from which this appeal is taken. On remand, the parties are not restricted on any issue other than the statute of repose.