Mauer v. Rubin ( 2010 )

SIXTH DIVISION
March 26, 2010
No. 1-08-3211
MARSHALL MAUER, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County, Illinois.
)
v. )
) No. 07 L 10338
ROGER RUBIN and BEERMAN, )
SWERDLOVE, WOLOSHIN, BAREZKY, )
BECKER, GENIN & LONDON, ) Honorable
) Barbara A. McDonald,
Defendants-Appellees. ) Judge Presiding.
JUSTICE JOSEPH GORDON delivered the opinion of the court:
This is a legal malpractice action brought by plaintiff Marshall Mauer on October 1,
2007, against his former attorney, Roger Rubin, and Rubin’s law firm, Beermann, Swerdlove,
Woloshin, Barezky, Becker, Genin & London (the Beermann firm). The issue before us on
appeal is whether plaintiff’s suit is barred by the six-year statute of repose for legal malpractice
actions (735 ILCS 5/13-214.3 (West 2009)).
Rubin, as a member of the Beermann firm, represented Mauer in the underlying action, in
which Mauer obtained a divorce from his wife, Frances Mauer (Frances). Mauer was the
president of Dynamic Healthcare Consultants, Inc., and he possessed interests in various health
care entities valued at millions of dollars, as well as various debts and liabilities in connection
with those interests. After negotiating, Mauer and Frances reached an understanding regarding
the division of these assets and obligations. Defendants then drew up a written marital
settlement agreement (Agreement) which the parties signed and which was incorporated into the
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judgment of dissolution entered on June 18, 2001. Mauer alleges that this Agreement was
defective. Specifically, he argues that defendants negligently omitted certain obligations that
were attached to the divided marital properties, thus leaving him responsible for more than his
proper share of the obligations. Mauer further alleges that when he brought this error to
defendants’ attention, defendants negligently delayed filing a petition for relief from judgment,
and that they later withdrew that petition without Mauer’s knowledge or consent on February 16,
2005, the date it was set for hearing. After February 16, 2005, defendants’ representation of
Mauer ended, and Mauer hired new counsel.
Meanwhile, the Wedgewood Nursing Pavilion, LLC, a company subject to the
Agreement, was liquidated in March 2005. Under the Agreement, Frances was entitled to
$831,275 of the liquidation proceeds. Mauer refused to give her this amount. He claimed that he
was entitled to keep it as a set-off against her unpaid obligations that she should have borne
under the understanding they reached regarding the division of their marital assets, but that were
erroneously omitted from the Agreement. Frances then brought an action for conversion
(hereinafter, the conversion suit) against him. On October 11, 2005, Frances prevailed in the
conversion suit, and judgment in the amount of $831,275 plus interest was entered against
Mauer. Subsequently, on October 1, 2007, Mauer brought the instant legal malpractice lawsuit
against Rubin and the other defendant attorneys in this case, seeking damages that he allegedly
incurred as a result of the defective Agreement, including the judgment rendered against him in
the conversion suit.
Defendants filed motions to dismiss pursuant to 735 ILCS 5/2-619 (West 2009). They
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contended, in relevant part, that Mauer’s action was time-barred by the six-year statute of repose,
since the action was filed over six years after the judgment of dissolution incorporating the
allegedly defective Agreement. The trial court granted these motions. Mauer now appeals. For
the reasons that follow, we affirm.
I. BACKGROUND
In his complaint for legal malpractice, Mauer alleged that on January 1998, he retained
the Beermann firm to represent him in a dissolution of marriage proceeding. The marital estate
included interests in various partnerships and entities involved in the health care business. Many
of these entities were indebted to lenders. Mauer and his ex-wife agreed to a distribution of these
assets and debts whereby each of them would be responsible for the debts attached to the
properties they received in the settlement, or where the parties remained co-owners of a property,
they were to have joint responsibility for any debt attached to that property. Defendants then
drew up the Agreement for Mauer and his ex-wife to sign. Mauer alleged that in this document,
defendants inadvertently failed to attach the complete list of debts that should have been divided
between him and his ex-wife, thus leaving him with more than his proper share of the debts.
Mauer further alleged that Rubin assured him that all aspects of the settlement had been properly
documented in the Agreement, so Mauer did not scrutinize the details of the Agreement before
signing.
A copy of the Agreement, dated June 18, 2001, is attached to the complaint. It identifies
Mauer as the president of Dynamic Healthcare Consultants, Inc., provides a list of ownership
interests in companies that Mauer has, and provides a one-page list of loans and guarantees
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attached to those interests. It also sets forth the division of those ownership interests and
liabilities. The Agreement is initialed on every page by Mauer and Frances and bears their
signatures at the end. On that same day, June 18, 2001, the trial court entered a judgment for
dissolution of marriage that incorporated the terms of the Agreement.
After this judgment had been entered, Mauer allegedly realized that the Agreement was
defective and called this matter to the attention of Rubin and Rubin’s senior partner Beermann.
In the complaint, he stated that this meeting occurred in July 2002. However, in a subsequently
filed affidavit, he changed this date to July 2001, placing it a couple weeks after the divorce
judgment. At this time, according to Mauer, Rubin assured him that he would file an appropriate
motion to vacate the judgment so that the accurate list could be made part of the Agreement.
However, Rubin did not actually file a postjudgment motion, styled a “motion to correct,” until
September 12, 2002. A copy of this motion is attached to the complaint. It states that it is being
brought pursuant to section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West
2009)), which provides for modification of a judgment in a non-jury case within 30 days after
entry of the judgment, and section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
(West 2009)), which provides for relief from judgments after the 30-day period has passed. The
motion seeks modification of the divorce settlement on grounds of mutual mistake.1 The trial
1
When the court approves a marital settlement agreement concerning property rights and
incorporates it into the divorce judgment, the agreement is merged into the judgment, and the
parties’ rights thereafter rest upon that judgment. Sondin v. Bernstein, 126 Ill. App. 3d 703, 708,
467 N.E.2d 926, 931 (1984). Illinois courts have recognized a 2-1401 petition as a proper avenue
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court struck the portion of the petition brought pursuant to section 2-1203 as untimely, leaving it
as a pure 2-1401 petition. (For this reason, we shall refer to it as “the 2-1401 petition.”)
In her response to the 2-1401 petition, Frances argued that modification of the judgment
should be denied because Mauer’s counsel waited more than 15 months after the entry of the
divorce decree to file the petition and therefore did not act with due diligence. She also
contended that the petition did not allege a meritorious claim, in that she had never intended to
be responsible for the additional obligations that Mauer sought to attach to the Agreement, so no
mutual mistake had occurred. The record does not reflect what, if any, response defendants
made to these contentions. However, Mauer alleged that on February 16, 2005, the date that the
section 2-1401 petition was set for hearing, Rubin advised the court and opposing counsel that he
was voluntarily withdrawing the petition. According to Mauer, Rubin took this action without
first informing him or obtaining his consent.
Mauer further alleged that his ex-wife filed a suit for conversion (the conversion suit)
against him in 2005. He did not elaborate upon the nature of this suit in his complaint except to
aver that she sought relief which would have been precluded if the defendants had handled his
for reformation of such an agreement where it fails to express the parties’ real intentions due to
mutual mistake. See In re Marriage of Johnson, 237 Ill. App. 3d 381, 394, 604 N.E.2d 378, 387-
88 (1992); In re Marriage of Shelton, 127 Ill. App. 3d 775, 780-81, 469 N.E.2d 618, 623 (1984).
The petitioner bears the burden of showing, by clear and convincing evidence, that the settlement
was written in terms that violate the understanding of both parties. Johnson, 237 Ill. App. 3d at
394, 604 N.E.2d at 388.
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case with ordinary care. In October 2005, Mauer’s ex-wife prevailed in her suit, and judgment in
the amount of $831,000 plus interest was rendered against Mauer.
Based upon these allegations, the complaint stated that defendants had fallen short of the
standard of care in the following ways:
“19. A reasonably careful attorney handling Plaintiff’s matter would have: (a)
made certain the transaction was documented properly; (b) upon learning there was
inadequate documentation to reflect the true agreement of the Plaintiff and his ex-wife,
filed a timely post-judgment motion; and (c) would have prosecuted the 2-1401 petition;
or (d) obtain the consent of the client before withdrawing the petition.”
Mauer therefore sought damages in the amount of $831,000 plus interest, plus an unspecified
sum for the various obligations that he alleged should have been allocated to his ex-wife but
which he remained solely responsible for, by reason of the Agreement as drawn up by
defendants.
Defendants each filed separate motions to dismiss under section 2-619 of the Code of
Civil Procedure (735 ILCS 5/2-619 (West 2009) (allowing involuntary dismissal of actions not
commenced within the time allowed by law)). They each contended that Mauer’s action was
barred by the six-year statute of repose for legal malpractice actions (735 ILCS 5/13-214.3 (West
2009)), since his complaint, filed on October 1, 2007, came over six years after judgment was
entered in the dissolution of marriage case on June 18, 2001. They further contended that Mauer
could not establish damages, because the judgment rendered against him in the conversion suit
was a result of his own actions, not the actions of defendants.
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In response to defendants’ statute of repose argument, Mauer contended that defendants
had been engaged in a continuous course of negligent representation that continued until
defendants withdrew the 2-1401 petition on February 16, 2005. Therefore, he argued, the statute
of repose did not begin to run until that date. He further averred, in an attached affidavit, that
Rubin assured him on multiple occasions that the error with the Agreement would be corrected
and that, even under the current version of the Agreement, his ex-wife was responsible for the
guarantees and contingent liabilities attendant to the business interests which she was awarded in
the divorce, despite the fact that the full list of such obligations was not attached.
In response to defendants’ contention that he could not prove damages, Mauer argued that
his loss in the conversion suit was, in fact, a result of defendants’ negligence. He pointed out
that the suit was triggered by the March 2005 liquidation of the Wedgewood Nursing Pavilion,
LLC, which was one of the health care companies that Mauer had an interest in, and which was
subject to the Agreement. Under the Agreement, Frances was entitled to receive $831,275 from
the liquidation of the company. Mauer, in his capacity as representative of the company, wrote a
check payable to Frances for $831,275, but he then refused to tender the check to her. He
asserted that he was entitled to keep part of those funds as a set-off against Frances’ unpaid
obligations – obligations that were not explicitly listed in the Agreement as a result of
defendants’ alleged negligence, but that Rubin had assured Mauer that Frances would
nevertheless be held responsible for. Frances then sued Mauer for conversion. The trial court
rejected Mauer’s set-off argument and entered judgment for Frances in the amount of $831,275
plus interest on October 11, 2005. Mauer contended that his set-off argument would have been
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successful but for defendants’ negligence in failing to include the obligations at issue in the
Agreement and in subsequently failing to proceed with the 2-1401 petition for relief from
judgment.
On May 29, 2008, after hearing oral argument on defendants’ motions to dismiss, the trial
court granted the motions in part and denied them in part. It found that Mauer’s allegations of
negligence occurring prior to the June 18, 2001, entry of judgment in the divorce case were time-
barred under the statute of repose. Accordingly, the court dismissed paragraph 19(a) of Mauer’s
complaint, which dealt with defendants’ alleged failure to draft the Agreement properly. At oral
argument, defendants also argued that Mauer’s allegations of negligence subsequent to the entry
of judgment in the divorce case – that is, defendants’ alleged failure to properly file and
prosecute a petition for relief from judgment – could not form the basis for any recovery, insofar
as Mauer could not show that a correctly-handled petition would have been successful. Any
damages arising from the mishandling of the petition would necessarily be speculative, they
argued. Defendants therefore urged the court to dismiss Mauer’s complaint in its entirety. The
court acknowledged that this argument was “persuasive,” but it found that defendants did not
adequately raise it in their motion to dismiss, so Mauer had not yet been afforded a proper chance
to respond to it. The court therefore declined to dismiss the remainder of Mauer’s complaint, but
it stated that defendants were allowed to file another motion to dismiss.
Defendants then filed 2-619 motions to dismiss the remaining portions of Mauer’s
complaint, raising the argument outlined above. On October 20, 2008, after hearing oral
argument by the parties, the trial court granted those motions and dismissed Mauer’s complaint
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with prejudice in its entirety. It is from this judgment that Mauer now appeals.
II. ANALYSIS
At issue in this case is whether Mauer’s action is barred under the six-year statute of
repose for legal malpractice actions.2 Mauer filed his suit on October 1, 2007. Defendants argue
that time began to run on the statute of repose on June 18, 2001, the date of entry of the judgment
of dissolution incorporating the allegedly defective Agreement. Mauer, on the other hand,
contends that time did not begin running on the statute of repose until February 16, 2005, when
defendants withdrew his 2-1401 motion and their representation of him ended. In the alternative,
Mauer contends that the statute of repose should be tolled in accordance with the doctrines of
equitable estoppel and fraudulent concealment, because of his allegations that defendants lulled
him into inaction by falsely assuring him that his interests were being protected. We consider
these contentions in turn, reviewing the trial court’s ruling on this matter de novo. Trogi v.
Diabri & Vicari, P.C., 362 Ill. App. 3d 93, 95, 839 N.E.2d 553, 555 (2005) (de novo review of 2-
619 motion to dismiss based on statute of repose).
A. Starting Date of the Period of Repose
Mauer first argues that defendants were engaged in a continuous course of negligent
conduct toward him from the time that Rubin drew up the defective Agreement to the time that
2
Defendants also argue, as they did before the trial court, that plaintiff’s claim is time-
barred under the two-year statute of limitations. However, we need not address this issue,
because we find the statute of repose issue to be dispositive of this appeal.
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Rubin withdrew his 2-1401 motion for relief from judgment on February 16, 2005. Therefore,
Mauer contends that the statute of repose should not begin to run until February 16, 2005.
Defendants, on the other hand, contend that all of Mauer’s injuries resulted from alleged acts or
omissions occurring on or before June 18, 2001, when the Agreement was signed and the divorce
judgment was entered, so that date marks the proper start of the repose period.
Section 13-214.3 of the Code of Civil Procedure sets out the statutes of limitation and
repose for legal malpractice actions as follows:
“(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) 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.” 735 ILCS
5/13-214.3 (West 2009).
Thus, the statute of limitations begins to run after a cause of action has accrued, while the statute
of repose, which is at issue in the present case, begins to run as soon as an event creating the
malpractice occurs, regardless of whether any injury has yet resulted so as to cause an action to
accrue. Trogi, 362 Ill. App. 3d at 96, 839 N.E.2d at 556, citing Ferguson v. McKenzie, 202 Ill.
2d 304, 311, 780 N.E.2d 660, 664 (2001); DeLuna v. Burciaga, 223 Ill. 2d 49, 61, 857 N.E.2d
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229, 237 (2006); see Meyers v. Underwood, 316 Ill. App. 3d 970, 985-86, 738 N.E.2d 118, 129
(2000) (not fundamentally unfair for statute of repose to bar plaintiffs’ legal malpractice claims
before they accrued). This is because the statute of repose “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 or her cause of action.” Ferguson, 202 Ill. 2d at 311, 780 N.E.2d at 664.
As noted above, Mauer first contends that defendants were engaged in a continuous
course of negligent conduct toward him, and the operative date for purposes of the statute of
repose should therefore be the date that such negligent conduct ended – namely, February 16,
2005, when defendants voluntarily dismissed his 2-1401 petition for relief from the divorce
judgment. In this regard, he seeks to draw an analogy to our supreme court’s recognition of the
continuous course of negligent treatment doctrine in the realm of medical malpractice.
Cunningham v. Huffman, 154 Ill. 2d 398, 406, 609 N.E.2d 321, 325 (1993). Under that doctrine,
if a physician engages in a continuous and unbroken course of negligent treatment, and the
treatment is “so related as to constitute one continuing wrong,” the statute of repose will not start
to run until the last date of negligent treatment. Cunningham, 154 Ill. 2d at 406, 609 N.E.2d at
325. This differs from the continuous course of treatment doctrine, which the Cunningham court
explicitly rejected. Cunningham, 154 Ill. 2d at 403, 609 N.E.2d at 324. Under the continuous
course of treatment doctrine, the statute of repose for a medical malpractice case does not begin
to run until the patient-physician relationship ends, as long as the physician has been
continuously treating plaintiff for a condition that was occasioned by a prior negligent act –
regardless of whether the physician’s subsequent treatment of the condition was negligent.
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Cunningham, 154 Ill. 2d at 403, 609 N.E.2d at 324. By contrast, the continuous course of
negligent treatment doctrine covers situations where “the cumulative results of continued
negligence is the cause of the injury.” Cunningham, 154 Ill. 2d at 405, 609 N.E.2d at 325.
Consequently, it “necessarily only encompasses the continuum where the physician was
negligent.” Cunningham, 154 Ill. 2d at 407, 609 N.E.2d at 325. Thus, for instance, it would
apply to situations in which patients are injured “due to negligent or unnecessary exposure to X-
ray radiation or administration of medication over a span of years.” Cunningham, 154 Ill. 2d at
405, 609 N.E.2d at 325.
Just as the Cunningham court rejected the continuous course of treatment doctrine with
regard to medical malpractice, Illinois courts have rejected the continuous course of
representation doctrine with regard to legal malpractice, finding that the statute of repose is not
tolled merely by the continuance of the attorney-client relationship. See Witt v. Jones & Jones
Law Offices, P.C., 269 Ill. App. 3d 540, 544, 646 N.E.2d 23, 25 (1995) (citing Cunningham in
rejecting continuous representation rule); Sorenson v. Law Offices of Theodore Poehlmann, 327
Ill. App. 3d 706, 710, 764 N.E.2d 1227, 1231 (2002) (continued existence of attorney-client
relationship after preparation of allegedly defective antenuptial agreement did not affect starting
point of period of repose). Nor does Mauer contest this fact in his brief. Mauer instead argues
that he was injured due to a continuous course of negligent legal representation over a span of
years, beginning with defendants’ initial drafting of the defective Agreement, continuing to their
delay in filing a motion for relief from judgment, and lasting until their withdrawal of the motion
without his knowledge or consent on February 16, 2005. Thus, he contends, under Cunningham,
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the period of repose for this continuous course of negligent representation should not start until
that final date.
However, the decision of our supreme court in Belleville Toyota, Inc. v. Toyota Motor
Sales, U.S.A., Inc., 199 Ill. 2d 325, 770 N.E.2d 177 (2002), casts doubt upon whether the
continuous course of negligent treatment doctrine, as articulated in Cunningham, can be applied
to the realm of legal malpractice. Although Belleville was not a legal malpractice case, it is
relevant here because it considered, and rejected, application of the continuous tort doctrine to
extend the period of limitations in a non-medical-malpractice setting. The period of limitations
at issue in Belleville was the four-year limit under the Motor Vehicle Franchise Act (Act) (815
ILCS 710/14 (West 2000)). Plaintiff, an automobile dealership, sued defendants for alleged
violations of the Act, claiming that defendants had failed to allocate to it the requisite amount of
Toyota vehicles over the previous decade. Belleville, 199 Ill. 2d at 328, 770 N.E.2d at 181. It
argued that these acts of improper allocation constituted a continuous decade-long course of
tortious conduct, and so, by analogy to Cunningham, the limitations period should not begin to
run until that course had ended. Belleville, 199 Ill. 2d at 345, 770 N.E.2d at 190.
The Belleville court rejected this attempted extension of Cunningham, explaining that
Cunningham “did not adopt a continuing violation rule of general applicability in all tort cases.”
Belleville, 199 Ill. 2d at 347, 770 N.E.2d at 191. Rather, its holding relied in part upon the
particular language of the medical malpractice statute of repose, which provides that an action
may not be brought “more than 4 years after the date on which occurred the act or omission or
occurrence alleged in such action to have been the cause of such injury or death” (emphasis
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added) (735 ILCS 5/13-212(a) (West 2009)). Cunningham, 154 Ill. 2d at 405, 609 N.E.2d at
325; Belleville, 199 Ill. 2d at 346, 199 Ill. 2d at 347, 770 N.E.2d at 190. The Cunningham court
stated that an “occurrence,” as distinguished from a mere “act or omission,” could be construed
to refer to a continuing course of negligent conduct. Cunningham, 154 Ill. 2d at 405, 609 N.E.2d
at 325. By contrast, the Belleville court found that no comparable “occurrence” language existed
in the Act to mandate a similar result. Belleville, 199 Ill. 2d at 347, 770 N.E.2d at 191; see 815
ILCS 710/14 (West 2000) (“actions arising out of any provision of this Act shall be commenced
within 4 years next after the cause of action accrues”).
Likewise, the statute of repose for legal malpractice does not contain any reference to an
“occurrence” occasioning a lawsuit; it merely provides that an action for legal malpractice “may
not be commenced in any event more than 6 years after the date on which the act or omission
occurred.” (Emphasis added.) 735 ILCS 5/13-214.3 (West 2009). Therefore, it is arguable
under the reasoning of Belleville that, notwithstanding Cunningham’s acceptance of the
continuous course of negligent treatment doctrine in the realm of medical malpractice, there is no
parallel continuous course of negligent representation doctrine in the realm of legal malpractice.
Nevertheless, we need not decide this issue, because even if the continuous course of
negligent representation doctrine were to exist, it would not be applicable under the facts of this
particular case. The negligence described in Cunningham qualifies as a continuous course
because it is “cumulative” (Cunningham, 154 Ill. 2d at 405, 609 N.E.2d at 325): that is, each
negligent treatment adds to the harm suffered by plaintiff, independently worsening the injury.
See Turner v. Nama, 294 Ill. App. 3d 19, 30, 689 N.E.2d 303, 311 (1997) (Cunningham doctrine
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applies to “the aggregate injury caused by the compounding effects of an ongoing course of
continuous negligent medical treatment for a specific condition”), citing Cunningham, 154 Ill. 2d
at 405, 609 N.E.2d at 325. To quote our supreme court on the matter:
“A continuing violation or tort is occasioned by continuing unlawful acts and conduct,
not by continual ill effects from an initial violation. [Citations.] Thus, where there is a
single overt act from which subsequent damages may flow, the statute begins to run on
the date the defendant invaded the plaintiff’s interest and inflicted injury, and this is so
despite the continuing nature of the injury.” Feltmeier v. Feltmeier, 207 Ill. 2d 263, 278-
79, 798 N.E.2d 75, 85 (2003).
Although Feltmeier involved application of the continuing violation rule to a claim of intentional
infliction of emotional distress, its explanation of what a continuing violation entails is still
relevant here, since the court was speaking of continuing violations generally and, in fact, cited
Cunningham as another example of the continuing violation rule in practice. Feltmeier, 207 Ill.
2d at 279-80, 798 N.E.2d at 86.
In the present case, following the explanations in Turner and Feltmeier, we find that the
injury alleged by Mauer is not cumulative or aggregate in nature, so as to trigger application of
the continuing violation doctrine. Rather, the harm to Mauer’s interests was done once the
judgment of dissolution incorporating the allegedly defective Agreement was entered, and all the
subsequent events alleged by Mauer, including the failure of his set-off defense in the conversion
suit brought by his ex-wife, can be traced to the entry of that judgment. The actions of Mauer’s
counsel subsequent to that judgment did not exacerbate his injury in the same way that, for
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instance, repeated administration of the wrong medicine can exacerbate a patient’s ill health with
each treatment (see Cunningham, 154 Ill. 2d at 405, 609 N.E.2d at 325). Accord Fricka v.
Bauer, 309 Ill. App. 3d 82, 84, 722 N.E.2d 718, 720 (1999) (period of repose for legal
malpractice actions is not tolled by the attorney’s “continuing duty to correct any defect or
omission related to the work product” after the work product is complete).
Serafin v. Seith, 284 Ill. App. 3d 577, 586, 672 N.E.2d 302, 309 (1996), deals with a
similar situation in which the court rejected plaintiff’s continuous course of negligent
representation theory. The facts of Serafin are as follows: In 1986, plaintiff and two other
individuals formed a corporation with the assistance of the defendant law firm. Serafin, 284 Ill.
App. 3d at 579, 672 N.E.2d at 305. Plaintiff owned 30% of the corporation’s shares, and the two
other individuals together owned the remaining 70%. Serafin, 284 Ill. App. 3d at 580, 672
N.E.2d at 305. In 1991, one of the other individuals proposed that the articles of incorporation
be amended to eliminate shareholders’ preemptive rights to acquire unissued shares of the
corporation, and plaintiff signed documents approving the change. Serafin, 284 Ill. App. 3d at
581, 672 N.E.2d at 306. The two individuals then proceeded to issue a flood of new shares
which they kept for themselves, diluting plaintiff’s ownership interest in the company to virtually
nothing. Serafin, 284 Ill. App. 3d at 582, 672 N.E.2d at 306. Plaintiff brought suit against the
two individuals, and in 1993, he amended his complaint to add a legal malpractice claim against
the defendant law firm. Serafin, 284 Ill. App. 3d at 579, 672 N.E.2d at 305.
At issue in Serafin was the operative date for the statute of repose with regard to
plaintiff’s legal malpractice claim. Citing Cunningham, plaintiff contended that the defendant
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law firm engaged in a continuous course of negligent representation from the founding of the
company in 1986 to the time that plaintiff agreed to modify the articles of incorporation in 1991,
since the defendant law firm had a continuing duty to warn him of the dangers of such a change.
Serafin, 284 Ill. App. 3d at 586, 672 N.E.2d at 309. Thus, plaintiff argued, the statute of repose
would not begin to run on his claim until 1991. Serafin, 284 Ill. App. 3d at 586, 672 N.E.2d at
309. The court rejected this argument, instead finding that the period of repose began in 1986,
thus rendering plaintiff’s claim time-barred. Serafin, 284 Ill. App. 3d at 586, 672 N.E.2d at 309.
In doing so, the court did not explicitly rule upon whether the continuous course of negligent
representation doctrine could be recognized in Illinois. Serafin, 284 Ill. App. 3d at 586, 672
N.E.2d at 309. Instead, the court reasoned that plaintiff’s claim was entirely predicated upon the
firm’s failure to inform him in 1986, when the articles of incorporation were being drafted, that
his preemptive rights could later be eliminated by the majority shareholders. Serafin, 284 Ill.
App. 3d at 586, 672 N.E.2d at 309. This was the case because, under Illinois law, an affirmative
vote of two-thirds of a corporation’s shares was sufficient to eliminate preemptive rights.
Serafin, 284 Ill. App. 3d at 586, 672 N.E.2d at 309, citing 805 ILCS 5/10.20(c) (West 1992).
Consequently, once the articles of incorporation had been drawn up with plaintiff as a 30%
shareholder, he was powerless to prevent the other two individuals from eliminating his
preemptive rights, regardless of any warnings the defendant law firm might have given him.
Serafin, 284 Ill. App. 3d at 586, 672 N.E.2d at 309. That is, plaintiff had not actually alleged a
continuous course of negligent conduct toward him but rather, to use the words of the Feltmeier
court, a “single overt act from which subsequent damages may flow” (Feltmeier, 207 Ill. 2d at
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279, 798 N.E.2d at 85). In the same way, the alleged damage to Mauer’s monetary interests was
already complete once the Agreement was incorporated into the judgment of dissolution, so
under Serafin and Feltmeier, the statute of repose will not be tolled by events occurring after that
judgment.
The case of Hester v. Diaz, 346 Ill. App. 3d 550, 805 N.E.2d 255 (2004), is also
instructive in this regard. The Hester plaintiff retained defendants to represent her in connection
with a workers’ compensation claim. Hester, 346 Ill. App. 3d at 551, 805 N.E.2d at 257. On
October 31, 1994, her case was called for hearing, but no one appeared on her behalf, so the case
was dismissed for want of prosecution. Hester, 346 Ill. App. 3d at 551, 805 N.E.2d at 257.
Defendants later filed a motion to reinstate the case on February 2, 2005, and the case was
continued to December 3, 1996. Hester, 346 Ill. App. 3d at 552, 805 N.E.2d at 257. However,
defendants failed to appear on her behalf on that date as well. Hester, 346 Ill. App. 3d at 552,
805 N.E.2d at 258.
Despite the fact that defendants’ alleged negligence with regard to plaintiff’s claim
continued beyond the initial dismissal of her claim on October 31, 1994, the court found that the
statute of repose began to run from the date of that initial dismissal. Hester, 346 Ill. App. 3d at
555, 805 N.E.2d at 260. The court explained:
“We reach this determination because of the finality of the dismissal. Malpractice
occurred at that time when the case was allowed to be dismissed for want of prosecution.
While there was case activity both within and without the workers’ compensation file
after that date, that activity does not change the status of the case, which was ‘dismissed.’
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*** We cannot conclude that the failure to appear at the December 3, 1996, setting was
the relevant act or omission. As of that date, the case had been dismissed. There were no
guarantees relative to reinstatement on that date. We will not speculate that simply
because reinstatement is freely allowed in the workers’ compensation arena, this
particular case would have enjoyed that treatment. No one can know that for certain.”
Hester, 346 Ill. App. 3d at 554-55, 805 N.E.2d at 260.
Thus, the court found that plaintiff’s lawsuit, filed on March 1, 2002, was not timely under the
statute of repose. Hester, 346 Ill. App. 3d at 555, 805 N.E.2d at 260. (We note at this juncture
that there was also an issue of equitable estoppel in Hester, which Mauer raises in his brief. We
shall discuss this issue when we consider Mauer’s equitable estoppel argument.)
Likewise, in the present case, malpractice allegedly occurred at the time when the
judgment of dissolution incorporating the allegedly defective Agreement was entered on July 18,
2001. While there was activity on the part of defendants after that date, this activity does not
change the fact that a final judgment had been rendered in plaintiff’s case, and there were no
facts alleged that would tend to establish that defendants’ actions compounded the damage
caused by that final judgment (see Turner, 294 Ill. App. 3d at 30, 689 N.E.2d at 311).
Accordingly, under Hester as well as Serafin, the period of repose for defendants’ alleged
negligence in drawing up the divorce decree began to run when judgment was entered in the
underlying divorce case on July 18, 2001.
Despite these cases, Mauer nevertheless argues that the beginning of the period of repose
should be delayed under Trogi, which he cites for the proposition that the statute of repose does
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not begin to run until the date of the “ ‘last act of representation upon which the malpractice is
founded.’ ” Trogi, 362 Ill. App. 3d at 96, 839 N.E.2d at 556, quoting O’Brien v. Scovil, 332 Ill.
App. 3d 1088, 1089, 774 N.E.2d 466, 467 (2002). He argues that the relevant “last act of
representation” in his case was the defendants’ withdrawal of his 2-1401 petition on February 16,
2005. However, analysis of Trogi does not support Mauer’s interpretation.
The alleged malpractice in Trogi occurred in a transactional context. Plaintiff retained
the defendant law firm to represent him in purchasing real property. Trogi, 362 Ill. App. 3d at
94, 839 N.E.2d at 554. Defendant prepared a deed for the property, and once it was executed,
defendant recorded the deed and mailed it to plaintiff, advising him to keep it in a safe place.
Trogi, 362 Ill. App. 3d at 94, 839 N.E.2d at 554. Plaintiff subsequently brought an action for
legal malpractice, claiming that defendant had recorded the deed in the wrong county, thus
causing him to lose his interest in the property. Trogi, 362 Ill. App. 3d at 94-95, 839 N.E.2d at
554. The court found that, under these facts, the period of repose would not begin until the date
that defendant sent the improperly recorded deed to plaintiff, since delivery of the final work
product to the client was the relevant “last act of representation” involved in the malpractice.
Trogi, 362 Ill. App. 3d at 96, 98, 839 N.E.2d at 556-57.
However, the Trogi decision did not purport to be at odds with the decision in Hester;
indeed, the court is at pains to show that the two decisions are compatible. The court draws an
analogy between the delivery of a final work product to a client in a transactional context (which
is at issue in Trogi) with the rendering of judgment in a litigation context (which is at issue in
Hester and in the present case). Trogi, 362 Ill. App. 3d at 98, 839 N.E.2d at 558. Each of these,
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according to the Trogi court, may be considered a “final event” triggering the start of the period
of repose. Trogi, 362 Ill. App. 3d at 98, 839 N.E.2d at 558. This is true notwithstanding the
attorney’s ongoing duty to correct any malpractice committed. See Fricka, 309 Ill. App. 3d at
84, 722 N.E.2d at 720 (ongoing duty to correct does not delay beginning of period of repose).
The Trogi court explained that in both cases, having such a definite cutoff serves the purpose of
the statute of repose, namely, terminating the possibility of liability after a defined period of
time. Trogi, 362 Ill. App. 3d at 98, 839 N.E.2d at 558; see Ferguson, 202 Ill. 2d at 311, 780
N.E.2d at 664 (the purpose and effect of statutes of repose “ ‘is to establish an absolute limit for
bringing suit’ ”), quoting Franklin v. Cernovich, 287 Ill. App. 3d 776, 779, 679 N.E.2d 98, 100
(1997). Thus, the Trogi decision does not detract from the conclusion we have reached above
under Hester and Serafin, but rather supports it.
Mauer next contends that, even if the period of repose would not be extended by the
Cunningham doctrine and recovery for defendants’ original negligent conduct is therefore time-
barred, the failure of defendants’ attempts to remediate that original negligent conduct by
pursuing the 2-1401 petition should provide an independent basis for recovery to which the
statute of repose should separately apply. This contention is inconsistent with the holding in
Hester, which relates the beginning of the period of repose to the initial malpractice which gave
rise to the plaintiff’s loss and created the subsequent need for remediation. However, even if
negligence in the remediation process could be separated from defendants’ original act of
negligence, such separate recovery would not be available to the plaintiff in this case, since
Mauer failed to plead those facts which would be necessary to enable him to pursue a claim for
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such negligence as an independent cause of action. Specifically, he did not plead that the
defendants’ negligence with respect to the filing and ultimate withdrawal of the 2-1401 petition
was the proximate cause of his injury. In other words, Mauer did not plead that, but for such
negligence, the 2-1401 petition would have been successful, which, as discussed below, must be
pled.
To prevail in a negligence claim, plaintiff must not only show that defendant committed a
breach of duty and that plaintiff suffered damages, but also that defendant’s action proximately
caused those damages. Serafin, 284 Ill. App. 3d at 586-87, 672 N.E.2d at 309. In other words,
plaintiff must show that, but for the negligence of defendant, he would not have suffered the
claimed loss. Serafin, 284 Ill. App. 3d at 587, 672 N.E.2d at 309; Ignarski v. Norbut, 271 Ill.
App. 3d 522, 525-26, 648 N.E.2d 285, 288 (1995). Thus, in a legal malpractice claim involving
failed litigation, plaintiff must essentially prove a “case within a case,” bearing the burden of
demonstrating that he would have been successful in the underlying suit were it not for
defendant’s negligence. Orzel v. Szewczyk, 391 Ill. App. 3d 283, 290, 908 N.E.2d 569, 575
(2009); First Nat’l Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 200, 872 N.E.2d 447,
484-85 (2007); Ignarski, 271 Ill. App. 3d at 525-26, 648 N.E.2d at 288. A causal link between
the alleged negligence and the loss of the underlying suit will not be presumed. LaGrange, 375
Ill. App. 3d at 200, 872 N.E.2d at 485; Ignarski, 217 Ill. App. 3d at 528. Where plaintiff fails to
allege facts that would establish success in the underlying suit, he has failed to plead a cause of
action. Ignarski, 271 Ill. App. 3d at 528, 648 N.E.2d at 290. This is true even where it is
conceded that defendant committed negligence in his handling of the underlying lawsuit. See
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Sheppard v. Krol, 218 Ill. App. 3d 254, 258, 578 N.E.2d 212, 215 (1991) (legal malpractice
claim properly dismissed where plaintiff failed to allege facts in his complaint demonstrating that
he would have prevailed in the underlying suit); Claire Associates v. Pontikes, 151 Ill. App. 3d
116, 123, 502 N.E.2d 1186, 1191 (1986) (legal malpractice claim properly dismissed for failure
to state a cause of action where plaintiffs alleged insufficient facts to demonstrate that underlying
suit was meritorious, notwithstanding allegations of negligence on the part of defendants due to
their failure to properly prosecute that suit and an unsupported assertion that the suit was
meritorious).
That element is lacking in the present case. Mauer fails to specifically allege in his
complaint that if defendants had filed a petition to correct the judgment in a timely manner and
had not later withdrawn the petition, the court would have granted plaintiff his desired
modifications to the divorce decree and the damages which he now claims would therefore have
been averted. Accordingly, Mauer has not pled that any of defendants’ actions subsequent to the
June 18, 2001, divorce decree were a proximate cause of his injury, and he cannot now claim that
such acts form an independent basis for recovery on a theory of legal malpractice. See, e.g.,
Ignarski, 271 Ill. App. 3d at 528, 648 N.E.2d at 290; Sheppard, 218 Ill. App. 3d at 259-60, 578
N.E.2d at 216; Claire Associates, 151 Ill. App. 3d at 123, 502 N.E.2d at 1191.
The Serafin decision is pertinent here as well. The Serafin court rejected the idea that the
defendant law firm’s 1991 conduct could form the basis of an independent cause of action,
because it found that even if the defendant law firm had breached its duty to plaintiff after 1986,
plaintiff could not show that such breach of duty was a proximate cause of his injury. Serafin,
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284 Ill. App. 3d at 586, 672 N.E.2d at 309. Thus, insofar as plaintiff’s complaint was premised
upon the defendant law firm’s 1991 conduct, it was properly dismissed for failure to state a cause
of action. Serafin, 284 Ill. App. 3d at 586, 672 N.E.2d at 309. The same is true of the instant
case with regard to defendants’ actions after the entry of the divorce judgment.
B. Fraudulent Concealment and Equitable Estoppel
Mauer next contends that defendants lulled him into inaction by falsely assuring him that
his interests would be protected despite the entry of the defective Agreement. Therefore, he
argues, the statute of repose should be tolled in accordance with the fraudulent concealment
statute (735 ILCS 5/13-215 (West 2009)) and the doctrine of equitable estoppel. Defendants
respond that, regardless of whether any fraudulent concealment occurred, Mauer learned or
should have learned of their alleged negligence when Frances prevailed in the conversion suit on
October 11, 2005, a full year and eight months before the statute of repose was set to expire.
Since Mauer had ample time to file an action within the statutory time period, they argue that he
is not entitled to any tolling of the statute of repose.
The fraudulent concealment statute, contained in section 13-215 of the Code of Civil
Procedure, provides:
“If a person liable to an action fraudulently conceals the cause of such action from the
knowledge of the person entitled thereto, the action may be commenced at any time
within 5 years after the person entitled to bring the same discovers that he or she has such
cause of action, and not afterwards.” 735 ILCS 5/13-215 (West 2009).
See DeLuna, 223 Ill. 2d at 74, 857 N.E.2d at 244 (holding that under section 13-215, a
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defendant’s fraudulent concealment tolls the statute of repose for legal malpractice actions);
Rajcan v. Donald Garvey & Associates, Ltd., 347 Ill. App. 3d 403, 408, 807 N.E.2d 725, 729
(2004) (plaintiffs’ allegations of fraudulent concealment were sufficient to avoid 2-619 dismissal
under the statute of repose).
The common-law doctrine of equitable estoppel, as applied in the context of the statute of
repose, parallels the fraudulent concealment statute. Turner, 294 Ill. App. 3d at 26, 689 N.E.2d
at 308. Under this doctrine, a party may estop another person from asserting material facts
where:
“(1) the other person misrepresented or concealed material facts; (2) the other person
knew at the time he or she made the representations that they were untrue; (3) the party
claiming estoppel did not know that the representations were untrue when they were
made and when that party decided to act, or not, upon the representations; (4) the other
person intended or reasonably expected that the party claiming estoppel would determine
whether to act, or not, based upon the representations; (5) the party claiming estoppel
reasonably relied upon the representations in good faith to his or her detriment; and (6)
the party claiming estoppel would be prejudiced by his or her reliance on the
representations if the other person is permitted to deny the truth thereof.” DeLuna, 223
Ill. 2d at 82-83, 857 N.E.2d at 249.
However, courts have declined to apply fraudulent concealment and equitable estoppel to
toll the statute of repose in cases where “the claimant discovers the fraudulent concealment, or
should have discovered it through ordinary diligence, and a reasonable time remains within the
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remaining limitations period.” Smith v. Cook County Hospital, 164 Ill. App. 3d 857, 862, 518
N.E.2d 336, 340 (1987); see Serafin, 284 Ill. App. 3d at 589, 672 N.E.2d at 311 (“doctrine of
equitable estoppel will not apply to a case if defendant’s conduct terminated within ample time to
allow the plaintiff to still avail himself of any legal rights he may have had”), citing Cramsey v.
Knoblock, 191 Ill. App. 3d 756, 766, 547 N.E.2d 1358, 1365 (1989) (no equitable estoppel where
“plaintiffs had an opportunity to file an action within the limitation period, but did not do so – for
no reason that can be attributed to defendants’ statements or conduct”); Turner, 294 Ill. App. 3d
at 28, 689 N.E.2d at 310 (fraudulent concealment exception did not apply where plaintiff should
have discovered the alleged concealment through ordinary diligence eight months before the
repose period elapsed); accord Witt, 269 Ill. App. 3d at 544, 646 N.E.2d at 25 (plaintiffs could
not avail themselves of fraudulent concealment doctrine where, notwithstanding the possibility
of fraudulent concealment, plaintiffs had actual knowledge of their cause of action within the
statutory timeframe). Thus, where a plaintiff has been put on inquiry as to a defendant’s
fraudulent concealment within a reasonable time before the ending of the statute of repose, such
that he should have discovered the fraud through ordinary diligence, he cannot later use
fraudulent concealment as a shield in the event that he does not file suit within the statutory
period. Smith, 164 Ill. App. 3d at 862, 518 N.E.2d at 340, citing Real v. Kim, 112 Ill. App. 3d
427, 435-36, 445 N.E.2d 783, 789 (1983) (once decedent was diagnosed with brain cancer, he
was put on inquiry that the defendant health care providers might have misdiagnosed him three
years earlier, and as a result “he then had the burden of investigating whether he had a cause of
action for medical malpractice”); see Rajcan, 347 Ill. App. 3d at 409, 807 N.E.2d at 729 (noting
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that, in legal malpractice case, it was arguable that defendant counsel’s “repeated failures to
honor the requests for the document [at issue in the lawsuit] should have put plaintiffs on inquiry
as to fraudulent concealment” approximately a year before the running of the statute of repose,
thus defeating plaintiff’s fraudulent concealment argument).
In this case, judgment was entered against Mauer in the conversion suit on October 11,
2005, over a year and eight months before the statute of repose was set to expire on June 18,
2007. In entering judgment against Mauer, the court rejected Mauer’s argument that he was
entitled to keep the proceeds from the liquidation of the Wedgewood Nursing Pavilion as a set-
off against his ex-wife’s unpaid obligations. Thus, at that point, Mauer knew or should have
known that the Agreement was not protecting his interests in the way that he desired it to. At the
very least, he was put on inquiry that his counsel’s repeated reassurances that his interests would
be protected were false. Thus, even assuming for the sake of argument that the defendants
fraudulently concealed the cause of action from him, such concealment could not have been
maintained in the face of ordinary diligence once judgment was rendered against Mauer in the
conversion suit. Indeed, Mauer admits as much in his response to defendants’ initial motions to
dismiss, in which he states:
“It was not until October 11, 2005, when plaintiff was unable to successfully prosecute
his set-off defense based on the MSA it was realized that the failure to correct the error in
the MSA was fatal to his defense in the action filed by his wife.”
Mauer had over a year and eight months from this admitted realization to file his action within
the period of repose, which certainly qualifies as ample time. See, e.g., Butler v. Mayer, Brown
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& Platt, 301 Ill. App. 3d 919, 926, 704 N.E.2d 740, 745 (1998) (“We have held that as little as
six months remaining in a statute of limitations period is ‘ample time’ for a plaintiff to bring
suit”), citing Smith, 164 Ill. App. 3d at 863, 518 N.E.2d at 340; Turner, 294 Ill. App. 3d at 28,
689 N.E.2d at 310 (eight months considered ample time to bring suit); Sabath v. Mansfield, 60
Ill. App. 3d 1008, 1015, 377 N.E.2d 161, 167 (1978) (same); Real, 112 Ill. App. 3d at 435-36,
445 N.E.2d at 789 (fraudulent concealment claim rejected where decedent was alerted to the
possibility of alleged malpractice ten months before the running of the period of limitations);
Rajcan, 347 Ill. App. 3d at 409, 807 N.E.2d at 729 (being put on inquiry regarding legal
malpractice claim one year before expiration of repose period would constitute reasonable time
to bring suit as a matter of law). Yet he did not file his action within the period of repose.
Instead, for no reason that appears in the record, he waited for nearly two years after his
discovery of defendants’ alleged negligence to bring the instant suit, by which time the statute of
repose had expired. Consequently, regardless of whether defendants concealed the cause of
action from him, Mauer may not now apply the doctrines of fraudulent concealment and
equitable estoppel to toll the statute of repose.
Mauer nevertheless argues that his case is analogous to Hester, 346 Ill. App. 3d at 556,
805 N.E.2d at 261, in which the equitable estoppel doctrine was applied to toll the statute of
repose. As discussed earlier, the defendant attorneys in Hester failed to appear on plaintiff’s
behalf at her workers’ compensation hearing on October 31, 1994, and her case was dismissed
for want of prosecution. Hester, 346 Ill. App. 3d at 551, 805 N.E.2d at 257. The plaintiff further
alleged that the defendants failed to inform her that her case had been dismissed. Hester, 346 Ill.
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App. 3d at 556, 805 N.E.2d at 260. Instead, for the next seven years, they reassured her that her
case was proceeding as it should. Hester, 346 Ill. App. 3d at 556, 805 N.E.2d at 260. They did
not inform her of the truth until December 10, 2001, over a year after the statute of repose had
expired. Hester, 346 Ill. App. 3d at 552, 805 N.E.2d at 258. The court found that these
allegations sufficiently raised the issue of equitable estoppel to preclude dismissal of her
untimely-filed claim under the statute of repose. Hester, 346 Ill. App. 3d at 556, 805 N.E.2d at
260. However, Hester is readily distinguishable from the case at hand, since the Hester plaintiff
alleged that the fraudulent concealment lasted until well after the statute of repose had expired,
while in the present case, Mauer had over a year and eight months after becoming aware of his
counsel’s alleged negligence in which to file his claim within the statutory time period.
Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
CAHILL, P.J., and R.E. GORDON, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each Case)
Please use the
following form
Marshall Mauer,
Plaintiff-Appellant,
v.
Roger Rubin and Beermann, Swerdlove, Woloshin, Barezky, Becker, Genin & London,
Defendants-Appellees.
Docket No. No. 1-08-3211
COURT Appellate Court of Illinois
First District, SIXTH Division
Opinion Filed March 26, 2010
(Give month, day and year)
JUSTICE JOSEPH GORDON DELIVERED THE OPINION OF THE COURT:
JUSTICES Cahill, P.J., and R.E. Gordon, J. , concur.
APPEAL from the Lower Court and Trial Judge(s) in form indicated in margin:
Circuit Court of Cook
County; the Hon___ Appeal from the Circuit Court of Cook County.
Judge Presiding.
The Hon. Barbara A. McDonald, Judge Presiding.
Indicate if attorney represents APPELLANTS or APPELLEES and include attorneys of
counsel. Indicate the word NONE if not represented.
APPELLANTS: APPELLANT: Lawrence Seiwert, 33 N. LaSalle Street, Suite 3400, Chicago, IL 60602
John Doe, of Chicago
For APPELLEES, APPELLEES (Roger Rubin): Mark P. Standa, P.C., 582 N. Oakwood Ave., Suite 201, Lake
Smith and Smith of Forest, IL 60045
Chicago
APPELLEES (Beermann, Swerdlove, Woloshin, Barezky, Becker, Genin & London):
Stephen R. Swofford, Joshua G. Vincent, and Kimberly A. Jansen, Hinshaw & Culbertson
LLP, 222 North LaSalle St., Suite 300, Chicago, Illinois 60601
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No. 08-2311
Add attorneys for 3rd
party appellants and/or
appellees.
-31-