dissenting:
The reader attempting to decipher the court’s holding today faces an unnecessarily formidable challenge for several reasons, not least of which is that Justice McLaren’s “majority” opinion does not actually represent a majority view. The three judges on this panel have devised three answers to the pivotal question of when the injury here occurred: (1) it occurred at the time the instruments were to go into effect, and not after; (2) it occurred at the time of the grantor’s death, and not before; and (3) there were injuries both at the time the instruments were to go into effect and at the time of the grantor’s death. Justice McLaren espouses the second theory, but he also (inconsistently, as I discuss below) relies on the third theory. In her special concurrence, Justice Jorgensen relies on the third theory, to the exclusion of the other two. I follow the first theory only. Thus, counting Justice McLaren’s dual vote, this panel has two votes for the third theory and one each for the remaining theories. Elementary math teaches that the third theory represents the majority view. Elementary logic teaches that, since Justice Jorgensen espouses the third theory in her “special concurrence,” her special concurrence actually represents the majority opinion of this court. The reason her opinion is cast as a special concurrence, while Justice McLaren’s is misleadingly cast with the imprimatur of a majority, escapes me completely, and I can only hope that readers will be more careful than my colleagues in ascertaining what holding has garnered two votes from this panel.
This court’s opinion is also unduly confusing because Justice McLaren’s “majority” is in tension with itself. Justice McLaren reasons that “as long as the client who had intended to convey an interest *** was still alive, the attorney’s error could be remedied at any time” and thus there was no “actual injury for which relief could be granted” until the grantor’s death. 403 Ill. App. 3d at 978. Justice McLaren further explains that he “disagree^]” that this case and Wackrow “are distinguishable legally” and asserts that the “principle” from Wackrow “applies here.” 403 Ill. App. 3d at 978. However, just after so stating, Justice McLaren abruptly and completely changes direction on both points and holds “[a]lternatively’’ that plaintiff was in fact injured at the time of the attempted transfer and that that injury “is distinguishable from the one in Wackrow.” 403 Ill. App. 3d at 979 (“The first [injury] occurred when Heidelberger failed to presently transfer the initial interest in the property. By itself, that injury is distinguishable from the one in Wackrow”). Before ending, Justice McLaren changes course once more and explains that “plaintiff did not suffer her injury until after [the grantor] died.” 403 Ill. App. 3d at 979. Justice McLaren’s opinion thus reflects an uneasy compromise between two irreconcilable views: the view that Wackrow dictates that plaintiffs injury did not occur at any time before the grantor’s death, and the view that plaintiff suffered an injury both before and at the time of the grantor’s death. Justice McLaren’s “alternative” holding — that Wackrow does not limit the time of the injury only to the time of the grantor’s death — comes after his opinion devoted entirely to the premise that Wackrow does so limit the time of the injury, and it comes without any supporting legal analysis. Thus, the “alternative” adjunct to Justice McLaren’s opinion is a bewildering incongruity.
Further, the “alternative” adjunct does nothing to cure the confusion that will result from Justice McLaren’s opinion’s being presented as a majority. Justice McLaren’s stated reasoning centers on his reading of Wackrow — a reading that both Justice Jorgensen and I disavow. However, since Justice McLaren’s opinion is presented as a majority, and since the only reasoning it contains is its discussion of Wackrow, most readers will incorrectly interpret his treatment of Wackrow as the view of this court. Because Justice Jorgensen and I disagree with that reading, however, it is not the view of this court. Again, Justice Jorgensen should have written the majority opinion, with Justice McLaren specially concurring and me dissenting. Structured as it is, with the majority view stated in a special concurrence and a minority view stated in the majority, this opinion undermines the very purpose for its publication in the first place: to provide clear guidance on important points of law.
In any event, regardless of what a majority of this court has held, I disagree with both theories articulated by Justices McLaren and Jorgensen. I begin with Justice McLaren’s theory, based on his reading of Wackrow, that no injury occurred until the time of the grantor’s death. As Heidelberger argues in his petition for rehearing, Justice McLaren fundamentally misinterprets Wackrow. In Wackrow, the defendant attorney attempted to draft a living trust amendment to provide that, upon his death, certain property would be transferred to the plaintiff. The supreme court held that the injury to the plaintiff did not occur until the death of the grantor “[bjecause [the grantor] could have revoked [the grant] or changed the beneficiary prior to his death.” Wackrow, 231 Ill. 2d at 425. Justice McLaren reasons that the “animating principle of the quoted passage from Wackrow is that, as long as the [grantor] *** was still alive, the [initial] error could be remedied at any time, by the drafting of a deed or other conveyance that effectuated his intent.” 403 Ill. App. 3d at 978. To the contrary, I (and Justice Jorgensen) read Wackrow to stand for the principle that the injury to the plaintiff there did not occur until the grantor’s death because the plaintiff was not supposed to gain any interest until the grantor’s death, not because the time of death ended any chance of remedying the error in the attempted transfer. As I see it, the supreme court’s reference to the grantor’s changing or revoking the grant was an illustration of the fact that the plaintiffs interest was not to be triggered until the grantor’s death and thus could be changed before it became effective. Thus, the principle I take from Wackrow is that a plaintiff in this situation is injured at the moment his or her interest was supposed to have been transferred but was not.
The difference between this case and Wackrow, and the reason I now dissent, is the timing of the attempted transfer of the interest. In this case, unlike Wackrow, the interest was supposed to transfer immediately, not upon some later event such as the death of the grantor. Since plaintiffs injury occurred as soon as the interest was supposed to transfer, and since the interest was supposed to transfer immediately upon completion of the deed, plaintiffs injury occurred on the date the deed was completed but the interest not actually transferred. I agree with Heidelberger that the injury here occurred when the defective deed was executed but no interest was transferred to plaintiff.
Justice McLaren instead identifies the date of the grantor’s death as the date of the injury. For this proposition, he relies on the idea that the date of the grantor’s death was the date after which the error in the deed could no longer be corrected. His reliance on this idea is largely based on what I explain above is a misreading of Wackrow. However, Wackrow notwithstanding, the fact that the deed could have been fixed at any time before the grantor died does not affect the timing of plaintiff’s injury in the first place. Indeed, any number of negligent actions can be remedied to mitigate or obviate the injury they caused, but that does not change the date of the injury. Further, as Heidelberger observes in his petition for rehearing, under Justice McLaren’s rule that an injury does not occur until after the last date a deed could have been corrected, there can never be an injury in a case involving a failed transfer of real estate so long as the grantor remains living and retains ownership of the property, because the grantor could potentially execute a corrected deed at any time. This cannot be the law.
In her “special concurrence” (actually the majority view, since the same holding is also tacked into Justice McLaren’s opinion), Justice Jorgensen relies on the idea that there were two injuries: one on the date of the attempted transfer, and one on the date of the grantor’s death when plaintiff’s interest should have matured into full ownership of the property. (By so reasoning, Justice Jorgensen repudiates Justice McLaren’s theory that Wackrow dictates no injury occurred until the time of the grantor’s death.) I disagree with this view as well. The fact that plaintiffs interest did not grow into full ownership is not a separate injury — it is a consequence of the underlying injury caused by the failure to convey her interest to her in the first place.
In short, I think plaintiff was injured at the first moment she should have acquired an interest in the property but did not: the moment the failed conveyance to her was executed. The death of the grantor foreclosed the possibility that that injury could be fixed, and it marked the date on which the interest she should have acquired would have appreciated into full ownership. However, the death of the grantor did not create a new injury. Because the time allotted under the statute of repose expired between the date of the real injury and the date plaintiff filed her lawsuit, I would affirm the trial court’s decision to grant Heidelberger’s motion to dismiss.