Doyle v. Hood

2018 IL App (2d) 171041No. 2-17-1041
Opinion filed September 28, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
MICHAEL A. DOYLE, as Trustee of the ) Appeal from the Circuit Court
Patricia A. O’Malley Supplemental Trust,
) of Lake County.
)
Plaintiff-Appellant, )
)
v. ) No. 17-L-308
)
THOMAS B. HOOD and THOMAS B. )
HOOD LAW OFFICES, P.C., ) Honorable
) Margaret J. Mullen,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Presiding Justice Hudson and Justice Schostok concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Michael A. Doyle, as trustee of the Patricia A. O’Malley Supplemental Trust
(Supplemental Trust), sued defendants, Thomas B. Hood and Thomas B. Hood Law Offices,
P.C., alleging legal malpractice in connection with defendants’ preparation of the living trust of
his father, Harry G. Doyle Jr. (through which the Supplemental Trust, a special-needs trust, was
created) and his will. Defendants moved to dismiss Michael’s complaint, alleging that it was
time-barred under the special repose period in section 13-214.3(d) of the Code of Civil
Procedure (Code) (735 ILCS 5/13-214.3(d) (West 2016)). The trial court granted the motion and
dismissed the complaint with prejudice. Michael appeals. We affirm.
2018 IL App (2d) 171041¶2 I. BACKGROUND
¶3 In 2011, Harry retained defendants to prepare documents in connection with an estate
plan for him and, according to Michael, his wife, Patricia A. O’Malley. (Patricia suffered from
Alzheimer’s disease.) Defendants prepared the Harry G. Doyle Jr. Revocable Living Trust
(Living Trust) and Harry’s will. On December 15, 2011, Harry executed the two documents.
¶4 The Living Trust established the Supplemental Trust, with Patricia as its beneficiary.
The Living Trust provided that Patricia
“has a disability which substantially impairs her ability to provide for her own financial
and support needs. As a result of said disability, [Patricia] will have the right to receive
certain benefits from public programs. Continued full access to the benefits of these
programs is essential to meet [Patricia’s] needs for basic maintenance, support services
and medical care. At that same time, these programs may leave gaps in basic services,
many provide adequately [sic] in emergencies, and may not provide for needs, wants and
opportunities beyond basic necessities.”
The document further provided:
“It is the intent of the Grantor that the Trust assets are to be used to supplement and never
supplant benefits of public programs, and that no distribution be made from this trust that
would disqualify [Patricia] from receiving the benefits of public programs or that would
reduce the level of such benefits. It is expressly provided that no payment should in any
way jeopardize a Medicaid payment for care of any type including the care provided in a
nursing home facility.”
¶5 The Supplemental Trust was intended for Patricia to receive funds while retaining her
eligibility for certain federal or state means-tested benefit programs. It was revocable by Harry
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2018 IL App (2d) 171041during his lifetime and is irrevocable as to Patricia and her assigns. The Supplemental Trust will
terminate upon Patricia’s death.
¶6 On January 14, 2012, Harry died. Upon his death, Michael became the trustee of the
Living Trust and the Supplemental Trust and the assets in the Living Trust were distributed to
the Supplemental Trust. Also upon Harry’s death, Michael became the executor of Harry’s will.
¶7 On March 15, 2012, defendants filed Harry’s will with the clerk of the circuit court of
Lake County (case No. 12-W-312). No letters of office were issued, and Harry’s will was not
admitted to probate.
¶8 In late 2013, Patricia was admitted into a long-term-care facility in Wheeling. On July
22, 2014, an application for long-term-care benefits under the Aid to the Aged, Blind, or
Disabled program (305 ILCS 5/3-1 et seq. (West 2012)) was filed on Patricia’s behalf, requesting
that her benefits begin as of April 1, 2014.
¶9 On February 25, 2016, according to Michael, the Department of Human Services (DHS)
issued a decision, finding that, as of April 1, 2014, the Supplemental Trust contained
$238,437.67 to pay for Patricia’s long-term care. 1 The DHS subtracted Patricia’s asset
allowance of $2000 from the $238,437.67 and imposed a spend-down of the remaining
$236,437.67.
¶ 10 On May 4, 2016, an appeal was filed with the DHS on Patricia’s behalf. On August 26,
2016, the DHS issued its final administrative decision (which was confirmed by an analyst
recommendation on September 1, 2016, by the Department of Heathcare and Family Services),
finding that, instead of requiring a spend-down, the assets held by Harry and transferred upon his
1
The document is not contained in the record on appeal.
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2018 IL App (2d) 171041death resulted in a penalty to Patricia, who “did not receive fair market value” for the assets. 2
The penalty was assessed at $234,561. Patricia’s application for long-term-care benefits was
approved subject to payment of the penalty from the funds in the Supplemental Trust.
¶ 11 On May 1, 2017, Michael, as trustee of the Supplemental Trust, sued defendants, alleging
professional negligence. In a first amended complaint, he alleged that defendants breached the
duties they owed to Harry during their attorney-client relationship, in that they created the
Supplemental Trust through the Living Trust, failed to create the Supplemental Trust through
Harry’s will, failed to prepare the necessary estate-planning documents to maximize funds
available for Patricia’s care and maintenance, and failed to exercise reasonable and ordinary care
and diligence in preparing Harry’s and Patricia’s estate plan. Michael claimed that, had
defendants created the Supplemental Trust through the will, as opposed to the Living Trust, the
transfer of the funds from the Living Trust to the Supplemental Trust upon Harry’s death would
have been exempt and no penalty would have been imposed. 42 U.S.C. §§ 1382b(e)(2)(A),
1396p(d)(2)(A)(ii) (2012); 89 Ill. Adm. Code § 120.347(c) (2013).
¶ 12 On October 5, 2017, defendants moved to dismiss Michael’s complaint. 735 ILCS 5/2-
619, 13-214.3(d) (West 2016). They argued that the claim was time-barred and that Patricia’s
disability had no bearing on the application of the statute of repose. Defendants’ position was
that the injury occurred upon Harry’s death, in 2012, and that Michael’s complaint, filed in 2017,
was beyond the two-year repose period in section 13-214.3(d). They noted that the complaint
alleged that the attorney-client relationship was between Harry and defendants. As to Patricia’s
condition, defendants argued that the tolling provisions of subsections (e) and (f) of section 13-
214.3 did not apply, because she was a beneficiary of the Supplemental Trust and the provisions
2
This document is also not contained in the record on appeal.
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2018 IL App (2d) 171041apply only to persons entitled to bring an action, which, here, was plaintiff as the trustee. 735
ILCS 5/13-214.3(e), (f) (West 2016). Further, subsection (f), by its own terms, did not toll or
avoid the repose period in subsection (d).
¶ 13 On November 28, 2017, the trial court granted defendants’ motion and dismissed
Michael’s complaint with prejudice. 3 Michael appeals.
¶ 14 II. ANALYSIS
¶ 15 Michael argues that the trial court erred in dismissing his complaint as time-barred. For
the following reasons, we disagree.
¶ 16 A motion to dismiss under section 2-619 admits the legal sufficiency of the complaint
and raises defects, defenses, or other affirmative matters that appear on the face of the complaint
or are established by external submissions that act to defeat the claim. Becker v. Zellner, 292 Ill.
App. 3d 116, 122 (1997). All pleadings and supporting documents are interpreted in the light
most favorable to the nonmoving party. Wackrow v. Niemi, 231 Ill. 2d 418, 422 (2008). We
review de novo a trial court’s ruling on a section 2-619 motion to dismiss. Id.¶ 17 To prevail on a legal-malpractice claim, a plaintiff must plead and prove that (1) the
defendant attorneys owed the plaintiff a duty of due care arising from the attorney-client
relationship, (2) the defendants breached that duty, and (3) as a direct and proximate result of
that breach, the plaintiff suffered injury. Sexton v. Smith, 112 Ill. 2d 187, 193 (1986).
¶ 18 Section 13-214.3 of the Code contains the limitations and repose periods for actions for
legal malpractice. Addressing these concepts in a general sense, the supreme court has
explained:
3
The record on appeal does not contain a transcript of the hearing or a bystander’s report.
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2018 IL App (2d) 171041“In contrast to a statute of limitations, which determines the time within which a lawsuit
may be brought after a cause of action has accrued, a statute of repose extinguishes the
action after a defined period of time, regardless of when the action accrued. DeLuna v.
Burciaga, 223 Ill. 2d 49, 61 (2006) (citing Ferguson v. McKenzie, 202 Ill. 2d 304, 311
(2001)). It begins to run when a specific event occurs, ‘regardless of whether an action
has accrued or whether any injury has resulted.’ Ferguson, 202 Ill. 2d at 311. Thus, the
statute of repose limit is ‘ “not related to the accrual of any cause of action; the injury
need not have occurred, much less have been discovered.” ’ CTS Corp. v. Waldburger,
573 U.S. ___, ___, 134 S. Ct. 2175, 2182-83 (2014) (quoting 54 C.J.S. Limitations of
Actions § 7, at 24 (2010)). The purpose of a repose period is to terminate the possibility
of liability after a defined period of time. After the expiration of the repose period, there
is no longer a recognized right of action. Evanston Insurance Co. v. Riseborough, 2014
IL 114271, ¶ 16.” Folta v. Ferro Engineering, 2015 IL 118070, ¶ 33.
¶ 19 Turning to the statutory framework at issue here, section 13-214.3 of the Code states, in
relevant part:
“(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 ***
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) Except as provided in subsection (d), 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.
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2018 IL App (2d) 171041(d) 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 unless letters of office are
issued or the person’s will is admitted to probate within that 2 year period, in which case
the action must be commenced within the time for filing claims against the estate or a
petition contesting the validity of the will of the deceased person, whichever is later, as
provided in the Probate Act of 1975.
(e) If the person entitled to bring the action is under the age of majority or under
other legal disability at the time the cause of action accrues, the period of limitations shall
not begin to run until majority is attained or the disability is removed.
(f) If the person entitled to bring an action described in this Section is not under a
legal disability at the time the cause of action accrues, but becomes under a legal
disability before the period of limitations otherwise runs, the period of limitations is
stayed until the disability is removed. This subsection (f) does not invalidate any statute
of repose provisions contained in this Section.” (Emphasis added.) 735 ILCS 5/13-
214.3(b)-(f) (West 2016).
¶ 20 The limitations period in section 13-214.3(b) “incorporates the ‘discovery rule,’ which
serves to toll the limitations period to the time when the plaintiff knows or reasonably should
know of his or her injury.” Snyder v. Heidelberger, 2011 IL 111052, ¶ 10.
¶ 21 The six-year repose period in section 13-214.3(c) “begins to run as soon as an event
giving rise to the malpractice claim occurs, regardless of whether plaintiff’s injury has yet been
realized.” Lamet v. Levin, 2015 IL App (1st) 143105, ¶ 20. “A statute of repose is not tolled by
the discovery rule.” Evanston Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 16. Nor is it
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2018 IL App (2d) 171041tolled merely by the continuation of the attorney-client relationship. Mauer v. Rubin, 401 Ill.
App. 3d 630, 640 (2010). The repose period in subsection (c) “does not run from an ‘injury,’ but
rather from an act or omission.” Terra Foundation for American Art v. DLA Piper LLP (US),
2016 IL App (1st) 153285, ¶ 44. A statute of repose “gives effect to a policy different from that
advanced by a statute of limitations; it is intended to terminate the possibility of liability after a
defined period of time.” Ferguson v. McKenzie, 202 Ill. 2d 304, 311 (2001).
¶ 22 Section 13-214.3(d) contains a special two-year repose period (and was the primary basis
upon which defendants here moved to dismiss), which is an exception to subsections (b) and (c).
DeLuna, 223 Ill. 2d at 74. It applies when the injury caused by the malpractice occurs upon the
client’s death. 735 ILCS 5/13-214.3(d) (West 2016); Wackrow, 231 Ill. 2d at 424; see also Terra
Foundation, 2016 IL App (1st) 153285, ¶ 44. Under section 13-214.3(d), if no letters of office
are issued and no will is admitted to probate, the action must be filed within two years of the
client’s death. 735 ILCS 5/13-214.3(d) (West 2016).
“Section 13-214.3(d) *** create[s] an exception to the six-year repose period for attorney
malpractice actions where the alleged injury does not occur until the death of the person
for whom professional services were rendered. However, that exception is not in
addition to the two-year statute of limitations and the six-year statute of repose. Rather,
the exception applies instead of the two-year statute of limitations and the six-year statute
of repose. As the appellate court in Poullette [v. Silverstein, 328 Ill. App. 3d 791 (2002),]
correctly held, ‘[n]othing in the statute conditions the application of subsection (d) on
whether the repose period in subsection (c) has expired.’ Poullette, 328 Ill. App. 3d at
795.” (Emphases in original.) Wackrow, 231 Ill. 2d at 427.
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2018 IL App (2d) 171041The section 13-214.3(d) “exception may shorten the limitation period for legal malpractice
complaints and may mean that a plaintiff’s action is barred before [he or] she learns of [his or]
her injury. However, the fact that a repose provision ‘may, in a particular instance, bar an action
before it is discovered is an accidental rather than necessary consequence.’ ” Id. (quoting Mega
v. Holy Cross Hospital, 111 Ill. 2d 416, 424 (1986)).
¶ 23 Michael argues that the repose period in subsection (d) does not apply here and that,
instead, subsection (c) applies. He contends that, on December 15, 2011, upon Harry’s
execution of his will and the Living Trust, defendants committed their last acts of malpractice.
On May 1, 2017, which was within the six-year repose period in subsection (c), Michael timely
filed his complaint against defendants. He asserts that the trial court’s ruling that subsection (d)
applied would have required him to file his suit on or before January 14, 2014 (i.e., within two
years of Harry’s death. However, it was not until about 32 months later, on August 26, 2016—
when the DHS issued its final decision, imposing a $234,561 penalty on Patricia—that Michael
first learned of Patricia’s injury. Because defendants created the Supplemental Trust through the
Living Trust, it was considered not a third-party special-needs trust but instead a special-needs
trust that was set up by Patricia. As a result, all asset transfers from Patricia or Harry were
subject to a 60-month look-back period from when Patricia applied for medical assistance, on
April 1, 2014. 89 Ill. Adm. Code § 120.388(a) (2012). The penalty assessed against Patricia,
Michael argues, resulted from asset transfers conducted during the look-back period. Thus, the
penalty was the result of defendants’ malpractice in creating the Supplemental Trust through the
Living Trust instead of Harry’s will.
¶ 24 Michael concedes that Wackrow and Snyder are controlling. In Wackrow, the defendant,
in 2002, prepared an amendment to a living trust for the plaintiff’s brother. Under the
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2018 IL App (2d) 171041amendment, the brother gifted his residence, or $300,000, to the plaintiff. Later that year the
brother died and, in 2003, the plaintiff made a claim against the estate for the property promised
to her under the amendment. In 2003, the probate court denied her claim, and, in 2004, the
plaintiff filed a legal-malpractice claim against the defendant. The plaintiff alleged that, had the
defendant conducted a property title search, it would have revealed that her brother did not own
the property individually but that another trust owned it. The trial court granted the defendant’s
motion to dismiss the complaint as untimely under section 13-214.3(d). The supreme court
agreed, holding first that the injury did not occur until the brother’s death, because the plaintiff
had alleged malpractice in the drafting of the amendment and the brother could have revoked or
modified the amendment up until his death. Wackrow, 231 Ill. 2d at 425. Second, the court
rejected the plaintiff’s argument that the defendant rendered professional services to her as a
third-party beneficiary and that the injury occurred when the administrator of her brother’s estate
denied her claim. Id. at 425-26. The court determined that the brother was the person to whom
services were rendered and that accepting the plaintiff’s argument “would eviscerate the repose
provision” because “no claim against an estate would be barred until the death of each intended
beneficiary of a will or trust. Such a result would be contrary to the legislative intent behind a
statute of repose. *** A period of repose is not intended to expand the possibility of liability
indefinitely.” Id. Finally, the plaintiff argued that, because she filed her complaint within the
two-year limitations period, neither the six-year repose period nor the subsection (d) repose
period applied. Id. at 426-27. The court rejected her argument, holding that the section 13-
214.3(d) “exception is not in addition to the two-year statute of limitations and the six-year
statute of repose. Rather, the exception applies instead of the two-year statute of limitations and
the six-year statute of repose.” (Emphases in original.) Id. at 427. The plaintiff, the court
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2018 IL App (2d) 171041determined, had two years to file suit, unless letters of office were issued or the will was
admitted to probate. Id. at 427-28. Because letters were issued and the will was admitted to
probate, she should have filed her complaint within the period for filing claims against the estate
or contesting the validity of the will (i.e., six months, or no later than April 2003). She did not
do so (she sued in 2004), and, thus, her complaint was untimely. Id. at 428-29.
¶ 25 In Snyder, 2011 IL 111052, ¶ 17, the supreme court held that subsection (c) applied
where the defendant attorney, in 1997, prepared a deed conveying the marital home to the
plaintiff and her husband as joint tenants with rights of survivorship. About 10 years later the
husband died and, afterward, the plaintiff learned that, prior to the alleged malpractice, title to
the home was held by a trustee of a land trust and her stepson was the sole beneficiary. Id. ¶¶ 1,
3. In 2008, the plaintiff sued the defendant, alleging legal malpractice (id. ¶ 2), specifically that
the defendant negligently prepared a quitclaim deed that failed to convey the property to the
plaintiff and her husband as joint tenants with rights of survivorship. The trial court granted the
defendant’s motion to dismiss the claim as untimely under the six-year statute of repose in
section 13-214.3(c). Id. ¶ 5. The supreme court affirmed the trial court’s judgment and held that
the injury occurred when the deed was prepared and executed and that, thus, the two-year
limitations period in subsection (b) applied. Id. ¶ 17. However, because the plaintiff did not file
her claim until 10 years later, the six-year repose period in subsection (c), which began to run
when the improperly recorded deed was mailed in 1997 (the last act of representation by the
defendant), barred her claim. Id. ¶¶ 17-18. Thus, the plaintiff’s suit (in 2008) was untimely. Id.
¶ 18. The court distinguished Wackrow, noting that the trust amendment in that case was
intended to take effect only upon the plaintiff’s brother’s death, not during his lifetime. Id. ¶¶
14-15. Thus, up until that time, “the plaintiff was to receive nothing and there was no injury
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2018 IL App (2d) 171041while [her brother] was alive.” Id. ¶ 15. Prior to his death, the brother could have revoked the
trust amendment or modified it. Id. The court further noted that, in the case before it, the
defendant’s services were intended to have an immediate benefit during the husband’s lifetime;
specifically, if he had legal title to the house, the joint-tenancy deed would have conveyed a one-
half undivided interest to the plaintiff. A right of survivorship is “a present interest that is
created by the conveyance of the property into joint tenancy.” Id. ¶ 14. The deed’s failure to
create a joint tenancy “caused a present injury that occurred at the time the quitclaim deed was
prepared.” Id. The court rejected the plaintiff’s argument that there can be more than one injury
for statute-of-limitations purposes, holding that the use of the phrase “the injury” indicated that
only a single injury triggers the limitations period in subsection (d). Id. ¶¶ 16-17. Further, the
court noted that subsection (d) does not apply when the injury occurs prior to the client’s death.
Id. ¶ 17. Thus, a second injury did not occur when, after her husband’s death, the plaintiff did
not receive ownership of the entire property interest as a surviving joint tenant. Id. “At most,
this event was an outgrowth or consequence of the injury caused by the failure of the quitclaim
deed to convey the property to [the husband] and [the] plaintiff as joint tenants.” Id.
¶ 26 Here, Michael maintains that these cases warrant a finding that the injury occurred when
the Living Trust was prepared and executed, not upon Harry’s death. He argues that, whereas in
Wackrow the brother could have revoked the trust amendment or changed the beneficiary prior to
his death, so the injury did not occur until his death, here the injury occurred immediately.
According to Michael, even if Harry could have identified the problem and created a new
Supplemental Trust for Patricia via a testamentary trust in his will, Patricia still would have been
deemed to have created the initial Supplemental Trust, and thus any asset transfers would still
have been subjected to the look-back period. In Michael’s view, there was no opportunity to
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2018 IL App (2d) 171041rectify defendants’ malpractice within the month between the execution of Harry’s documents
and his death. Thus, he concludes, creating the Supplemental Trust through the Living Trust,
which resulted in Patricia being deemed the creator of the Supplemental Trust, resulted in an
injury that was not fixable prior to Harry’s death or at any time.
¶ 27 We disagree with Michael’s conclusory assertion that there was no opportunity to fix
defendants’ malpractice. Up until his death (and by the Living Trust’s terms), Harry had the
power to revoke or amend the Living Trust. Thus, Patricia’s label as the creator of the
Supplemental Trust could have been erased. Further, the Supplemental Trust was not even
funded until Harry’s death. Michael alleged in his complaint that, on or about the date Harry
died, the assets in the Living Trust were distributed to the Supplemental Trust. No assessment of
penalties was possible absent trust assets, which were not present until Harry’s death. Indeed,
Michael’s complaint alleged that it was the transfer of the funds upon Harry’s death, albeit from
an incorrect vehicle, that resulted in the imposition of the penalty. Thus, the injury occurred
upon Harry’s death.
¶ 28 This conclusion is consistent with Wackrow and Snyder, where the supreme court
approached the issue by looking at when the relevant documents became effective. In Wackrow,
the amendment was intended to take effect only upon the client’s death and, thus, subsection (d)
applied. Wackrow, 231 Ill. 2d at 425. In Snyder, however, the court held that the provision did
not apply, because the injury—the failure to realize that the property was in a land trust when the
attorney prepared a quitclaim deed to it—occurred when the deed was delivered and recorded,
because it became effective at that time. Snyder, 2011 IL 111052, ¶ 14. Here, the injury
occurred when the Supplemental Trust could no longer be amended or revoked and was actually
funded, both of which occurred upon Harry’s death.
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2018 IL App (2d) 171041¶ 29 Next, Michael argues, without citing any authority, that subsection (d) is inapplicable
because Patricia was one of defendants’ clients and she is still alive. He notes that he alleged in
his complaint that Harry retained defendants to prepare documents in connection with both his
and Patricia’s estate plan. Michael contends that it is illogical to think that defendants could
properly prepare the necessary documents for Harry’s estate plan without considering the needs
of Patricia, who was the primary concern, especially considering that Harry was on his deathbed
when he first retained and met with defendants. Further, he notes that Patricia’s Alzheimer’s
disease had advanced to the point that she was considered disabled. The drafting of the
Supplemental Trust, he urges, demonstrates that defendants were retained to prepare the
documents for an estate plan for Harry and Patricia. Thus, in his view, Patricia has an individual
claim against defendants, and section 13-214.3(d) is inapplicable because she is “the person for
whom professional services were rendered” and she has not passed away. Defendants respond
that Harry was the client and that Michael’s complaint contains no allegation that Patricia was.
They also point to her disability and note that, in his response to the motion to dismiss, Michael
alleged that Patricia’s disability precluded her from bringing the case on her own behalf.
¶ 30 We reject Michael’s argument that subsection (d) cannot apply here. In Riseborough,
2014 IL 114271, a case addressing the subsection (c) six-year repose period, the supreme court
held that section 13-214.3 does not require that the plaintiff be a client of the attorney who
rendered the professional services. Id. ¶ 19. The court determined that the phrase “ ‘arising out
of an act or omission in the performance of professional services’ ” in subsection (b) (and, we
note, the similar reference to “the act or omission” in subsection (c)) is not limited to clients of
the attorney. Id. “[U]nder the express language of the statute, it is the nature of the act or
omission, rather than the identity of the plaintiff, that determines whether the statute of repose
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2018 IL App (2d) 171041applies to a claim brought against an attorney.” Id. The court also noted that a contrary reading
of the statute overlooks “that the repose period applies to claims ‘arising out of an act or
omission in the performance of professional services.’ ” (Emphasis in original.) Id. ¶ 23
(quoting 735 ILCS 5/13-214.3(b), (c) (West 2008)). The “language indicates an intent by the
legislature that the statute apply to all claims against attorneys concerning their provision of
professional services. There is no express limitation that the professional services must have
been rendered to the plaintiff. Nor does the statute state or imply that it is restricted to claims for
legal malpractice.” Id. “The statute unambiguously applies to all claims brought against an
attorney arising out of actions or omissions in the performance of professional services.” Id.
¶ 31 Riseborough did not address section 13-214.3(d), which contains different language from
that in subsections (b) and (c). The subsection (d) exception applies to situations where “the
injury caused by the act or omission does not occur until the death of the person for whom the
professional services were rendered.” (Emphasis added.) 735 ILCS 5/13-214.3(d) (West 2016).
The trigger for the exception is the death of the person for whom the professional services were
rendered, who can only be the client. Petersen v. Wallach, 198 Ill. 2d 439, 447-48 (2002)
(“section 13-214.3(d) was simply intended to create an exception to the six-year repose period
for attorney malpractice actions where the alleged injury does not occur until the death of the
client”).
¶ 32 Generally, an attorney can be liable in negligence only to his or her client and not to
nonclient third parties. Pelham v. Griesheimer, 92 Ill. 2d 13, 19 (1982). “[T]o establish a duty
owed by the defendant attorney to the nonclient[,] the nonclient must allege and prove that the
intent of the client to benefit the nonclient third party was the primary or direct purpose of the
transaction or relationship.” Id. at 20-21. In other words, the nonclient “must prove that the
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2018 IL App (2d) 171041primary purpose and intent of the attorney-client relationship itself was to benefit or influence
the third party.” Id. at 21.
¶ 33 Here, Harry was the client. Michael failed to plead an attorney-client relationship
between defendants and Patricia, failed to plead any duty to Patricia and breach thereof on
defendants’ part, and failed to plead that the primary purpose of defendants’ services was to
benefit Patricia. Defendants drafted two documents, the will and the Living Trust, both for
Harry, and he executed both documents. Patricia is a beneficiary of one of the trusts created
through the Living Trust. No documents were drafted for her. The Living Trust, which was
revocable during Harry’s lifetime, states that, during his life, it “shall be administered for [his]
primary benefit.” It is true that Michael alleged that Harry retained defendants to “prepare
necessary documents in connection with his and his disabled wife’s, Patricia A. O’Malley’s,
estate plan.” However, in the portion of his complaint addressing the elements of a legal-
malpractice claim, Michael alleged that there was an “attorney-client relationship between the
Defendants and Harry,” that defendants owed Harry a legal duty as a result, and that the duty “to
Harry” was breached. (Emphases added.) The complaint contains no allegation that there was
an attorney-client relationship between defendants and Patricia or that defendants breached any
duty to her. Nor does it allege that the primary purpose or intent of seeking defendants’ services
was for Patricia’s benefit.
¶ 34 Michael next argues that the injury did not occur until Patricia was assessed the penalty
in September 2016. Michael relies on Justice Freeman’s dissenting opinion in Snyder, wherein
he criticized the majority’s analysis of when an injury occurs in legal-malpractice cases, which
he believed precedent had established was when the plaintiff suffered a pecuniary injury.
Snyder, 2011 IL 111052, ¶ 31 (Freeman, J., dissenting) (“ ‘For purposes of a legal malpractice
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2018 IL App (2d) 171041action, a client is not considered to be injured unless and until he [or she] has suffered a loss for
which he [or she] may seek monetary damages.’ ” (quoting Northern Illinois Emergency
Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 306 (2005)); see also Eastman v.
Messner, 188 Ill. 2d 404, 411 (1999) (same). In a similar vein, Michael contends that we should
follow Landau and Eastman, upon which Justice Freeman relied (Snyder, 2011 IL 111052, ¶ 39),
and ignore Wackrow and Snyder, which are “confusing and criticized.” Under Landau and
Eastman, Michael argues, Patricia was not injured until she suffered a loss for which she could
seek monetary damages against defendants, i.e., until August 26, 2016, when the DHS issued its
decision imposing the penalty.
¶ 35 We reject Michael’s argument. Justice Freeman’s position in Snyder was in the minority.
It is well settled that this court is bound to follow the supreme court’s precedent, and “when our
supreme court has declared law on any point, only [the supreme court] can modify or overrule its
previous decisions, and all lower courts are bound to follow supreme court precedent until such
precedent is changed by the supreme court.” Rosewood Care Center, Inc. v. Caterpillar, Inc.,
366 Ill. App. 3d 730, 734 (2006). Our resolution of this appeal must conform to the majority’s
view. Snyder and Wackrow addressed section 13-214.3 and are, thus, directly relevant to this
appeal. The cases upon which Michael relies are not directly relevant to our analysis. Neither
Landau nor Eastman addressed section 13-214.3, and therefore they are easily distinguishable.
Landau, in which the plaintiff sued the law firm that defended it on an indemnity claim arising
from a medical-malpractice case, contains a general discussion of the actual-damages element of
a legal-malpractice claim. Landau, 216 Ill. 2d at 306-07 (“where an attorney has been engaged
to defend an action and the action is lost through the attorney’s negligence, the amount of the
judgment suffered by the client is, generally, a proper element of recovery in a malpractice
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2018 IL App (2d) 171041proceeding against the attorney”). Eastman addressed whether an employer’s insurer that paid
workers’ compensation benefits to an injured employee could assert a lien against the
employee’s recovery in a legal-malpractice suit based on the attorney’s failure to timely file a
personal-injury action on behalf of the employee against an alleged third-party tortfeasor.
Eastman, 188 Ill. 2d at 411-12 (holding that the insurer could not assert such a lien and
addressing the concept of actual damages in a legal-malpractice suit). We decline Michael’s
request to ignore controlling supreme court precedent.
¶ 36 Michael argues next that section 13-214.3(c)’s six-year repose period applies. Under that
section, regardless of Michael’s knowledge of the cause of action, the claim would have been
required to be filed within six years of defendants’ malpractice. Harry executed the Living Trust
and the will on December 15, 2011, and Michael filed his complaint on May 1, 2017, which was
within the six-year repose period. However, as we determined above, the section 13-214.3(d)
exception to the statute of repose applies. Where subsection (d) applies, it forecloses the
application of subsection (c). DeLuna, 223 Ill. 2d at 74 (subsection (d) contains an exception to
subsections (b) and (c)). In Wackrow, the supreme court determined that the subsection (d)
exception “is not in addition to the two-year statute of limitations and the six-year statute of
repose,” but, rather, “applies instead of the two-year statute of limitations and the six-year statute
of repose.” (Emphases in original.) Wackrow, 231 Ill. 2d at 427.
¶ 37 Michael’s final argument is that his complaint was timely under section 13-214.3(e), the
disability provision. That section provides: “If the person entitled to bring the action is under
the age of majority or under other legal disability at the time the cause of action accrues, the
period of limitations shall not begin to run until majority is attained or the disability is removed.”
(Emphasis added.) 735 ILCS 5/13-214.3(e) (West 2016). Michael argues that Patricia is the
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2018 IL App (2d) 171041person entitled to bring the action and was, and still is, disabled. He notes that he alleged in his
complaint that Patricia was disabled when defendants prepared the estate plan and that she is the
injured party and, thus, the person entitled to bring the action. He further alleged that defendants
were negligent in preparing the estate plan, which resulted in the imposition of a penalty on
Patricia. Due to her disability, Michael argues, she is not able to bring the case on her own
behalf, and she is entitled to avail herself of the tolling provision in section 13-214.3(e).
¶ 38 We disagree. The plaintiff in this case is Michael as trustee of the Supplemental Trust,
not on Patricia’s (individual) behalf. He is the only person who can bring an action on the trust’s
behalf, and he is not disabled. The power to bring an action on the trust’s behalf is explicitly
granted to him in the Living Trust, which states that the trustee has the power “[t]o litigate,
compromise, settle, or abandon any claim or demand in favor of or against the trust[.]” Further,
under the law, “[a] written trust possesses a distinct legal existence that is recognized by statute
(760 ILCS 5/4 et seq. (West 2000)) and can sue or be sued through its trustee in a representative
capacity on behalf of the trust.” Sullivan v. Kodsi, 359 Ill. App. 3d 1005, 1010 (2005).
Accordingly, Michael’s argument fails.
¶ 39 III. CONCLUSION
¶ 40 For the reasons stated, the judgment of the circuit court of Lake County is affirmed.
¶ 41 Affirmed.
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