DeLuna v. Burciaga ( 2006 )

Docket No. 101428.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
_______________________
SONIA DeLUNA et al., Appellee and Cross-Appellant, v. ELOY
BURCIAGA et al. (Eloy Burciaga, Appellant and Cross-
Appellee).
Opinion filed October 5, 2006.
JUSTICE KARMEIER delivered the judgment of the court,
with opinion.
Justices Freeman, Fitzgerald, Kilbride, and Garman
concurred in the judgment and opinion.
Chief Justice Thomas and Justice Burke took no part in the
decision.
OPINION
Plaintiffs, Sonia DeLuna, Susanna DeLuna, Griselda
DeLuna, and Oscar DeLuna, filed a legal malpractice action in
the circuit court of Cook County against defendants, Eloy
Burciaga, Barbara Clinite, and Michael Rathsack. Defendants
moved to dismiss plaintiffs= fourth amended complaint, arguing
that plaintiffs= suit was foreclosed by the applicable statute of
repose. The circuit court granted defendants= motions, ruling,
inter alia, that plaintiffs had failed to adequately allege
fraudulent concealment of the cause of action, or equitable
estoppel, and, in the absence of such allegations, the statute of
repose barred the action. The appellate court reversed the
dismissal of plaintiffs= complaint and remanded for further
proceedings, finding that the statute of repose would have
barred the action, but the allegations of plaintiffs= complaint
were sufficient, if proven, to invoke statutory provisions
pertaining to fraudulent concealment and general principles of
equitable estoppel. 359 Ill. App. 3d 544. We allowed defendant
Burciaga=s petition for leave to appeal (177 Ill. 2d R. 315), and
now we reverse the appellate court in part, affirm in part, and
remand this cause to the circuit court for further proceedings
consistent with this opinion.
STATUTES INVOLVED
Section 13B214.3 of the Code of Civil Procedure (Code)
provides in pertinent part:
A(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) [A]n 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.
***
(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
-2-
limitations shall not begin to run until majority is attained
or the disability is removed.@ 735 ILCS 5/13B214.3
(West 2000).
Section 13B215 of the Code states as follows:
AIf 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 5/13B215
(West 2000).
BACKGROUND
The factual allegations and procedural history of this case
are set forth fully in the appellate court=s opinion (359 Ill. App.
3d 544), and will be recited hereafter only as necessary to
facilitate an understanding of the issues before the court.
Plaintiffs= mother, Alicia DeLuna, underwent back surgery
on April 7, 1986. During that surgery, Dr. Michael Treister
allegedly cut through Alicia=s left iliac artery, causing severe
bleeding and loss of blood pressure. Alicia died the following
day.
Alicia=s husband, Guadalupe DeLuna, retained Eloy
Burciaga in April of 1986 to pursue a medical malpractice
action, and incorporated claims, arising from Alicia=s death.
Burciaga asked attorney Barbara Clinite to assist him.
Burciaga, however, was the attorney who communicated
directly with the DeLunas, because only Burciaga spoke fluent
Spanish. On April 16, 1986, Burciaga and Clinite filed a lawsuit
against Dr. Treister and St. Elizabeth=s Hospital on behalf of
Guadalupe DeLuna acting as the administrator of his wife=s
estate. Burciaga deliberately filed the lawsuit without attaching
an affidavit from a reviewing health-care professional, as
required by section 2B622 of the Code (Ill. Rev. Stat. 1985, ch.
110, par. 2B622), because he wanted to test the
constitutionality of that requirement. Burciaga did not inform
plaintiffs that he was filing the complaint without the required
affidavit. The suit against the hospital was dismissed in
-3-
October of 1986; Triester=s motion to dismiss with prejudice
was granted in February of 1987. The failure to attach a
section 2B622 affidavit was the basis for dismissal in both
instances.
Attorney Michael Rathsack assisted Burciaga and Clinite in
the ensuing appeal. In that appeal, the appellate court reversed
the dismissal, holding that section 2B622 was unconstitutional.
DeLuna v. St. Elizabeth=s Hospital, 184 Ill. App. 3d 802 (1989).
However, on February 20, 1992, this court reversed the
appellate court, upholding the constitutionality of section
2B622. DeLuna v. St. Elizabeth=s Hospital, 147 Ill. 2d 57
(1992).
In the spring of 1992, after this court had upheld the
constitutionality of section 2B622 and the dismissal of plaintiffs=
action, and as the deadline of the legal malpractice statute of
repose approached, Burciaga met with the DeLunas and
assured them that their medical malpractice case was Agoing
very well.@
In November of 1993, Burciaga and Rathsack filed a new
lawsuit, this time with the appropriate affidavit attached.
However, the circuit court dismissed the cause of action
against Treister on the basis of res judicata and the suit against
St. Elizabeth=s on grounds of respondeat superior. In
November of 1996, the appellate court reversed the dismissals.
DeLuna v. Treister, 286 Ill. App. 3d 25 (1996). On February 19,
1999, this court affirmed the dismissal of the suit against
Treister, but reversed the dismissal of the claim against St.
Elizabeth=s, and remanded that cause for further proceedings.
DeLuna v. Treister, 185 Ill. 2d 565 (1999). DeLuna=s estate
ultimately settled with St. Elizabeth=s Hospital in the fall of
2000.
On February 20, 2001, plaintiffs brought this legal
malpractice action, eventually filing a fourth amended
complaint against Burciaga, Rathsack, and Clinite. Defendants
moved to dismiss, pursuant to section 2B619 of the Code (735
ILCS 5/2B619 (West 2000)), arguing that plaintiffs= action had
been filed beyond the time limitation set forth in the legal
malpractice statute of repose. See 735 ILCS 5/13B214.3(c)
(West 2000) (six-year statute of repose). The circuit court
-4-
granted the defendants= motions to dismiss, finding that
plaintiffs had failed to adequately allege a joint venture,
fraudulent concealment, or equitable estoppel, and in the
absence of such allegations, the statute of repose barred the
action. Rathsack and Clinite subsequently settled with plaintiffs,
leaving Burciaga as the only party-defendant in the ensuing
appeal.
On appeal, plaintiffs argued, inter alia, that the trial court
erred in dismissing their legal malpractice action because (1)
section 13B214.3(e) of the Code tolled the repose period for
two of the plaintiffs (Sonia and Susanna) during their minority;
and (2) Burciaga had fraudulently concealed his conduct,
thereby tolling the start of the repose period and estopping him
from raising the statute of repose as a defense. The appellate
court rejected plaintiffs= first contention, but accepted the
second.
The court first held that the tolling provision contained in
subsection (e) of section 13B214.3 did not toll the statutory
period of repose set forth in subsection (c). Noting that Athe
terms >statute of limitations= and >statute of repose= are not
interchangeable,@ the court stated that subsection (e)
Aexpressly tolled@ only the Aperiod of limitations,@ which the
appellate court interpreted as a reference solely to the statutory
period set forth in subsection (b) of section 13B214.3. 359 Ill.
App. 3d at 550. Because the court believed that the phrase
Aperiod of limitations,@ in the context of subsection (e), is not
ambiguous, the court declined the plaintiffs= request to consider
cases construing the pre-1987 version of the medical
malpractice statute of limitations and repose (Ill. Rev. Stat.
1985, ch. 110, par. 13B212), which contained language similar
to section 13B214.3(e) of the Code. The appellate court
acknowledged that courts construing that language had Aheld
that the statute of limitations and the statute of repose for
medical malpractice actions were tolled until the minor turned
the age of 18.@ 359 Ill. App. 3d at 550. Nonetheless, since the
appellate court found no ambiguity in the legislature=s use of
the phrase Aperiod of limitations@ in section 13B214.3(e), it
rejected Aplaintiffs= reliance on the rule of in pari materia [as]
unavailing.@ 359 Ill. App. 3d at 550.
-5-
The court, however, determined that plaintiffs had
sufficiently pled fraudulent concealment and equitable
estoppel, and thus Burciaga=s conduct precluded him from
invoking the statute of repose to bar the action. The court held
that Burciaga, as a fiduciary, had Aa duty to reveal the facts
giving rise to the cause of action and that his silence when he
ought to speak, or his failure to disclose what he ought to
disclose, is as much a fraud at law as an affirmative false
representation or act.@ 359 Ill. App. 3d at 551, citing Chicago
Park District v. Kenroy, Inc., 78 Ill. 2d 555, 562 (1980). Though
the appellate court believed that Burciaga=s failure to disclose
the true state of affairs would have been sufficient, alone, to
invoke the provisions of section 13B215, the court noted that
Burciaga had Aaffirmatively misled [plaintiffs] in the spring of
1992 by telling them that their case was >going very well= @
when in fact the trial court had dismissed their medical
malpractice action and this court had affirmed the dismissal in
February of 1992. 359 Ill. App. 3d at 551. Thus, the court held
that plaintiff had sufficiently alleged Burciaga=s fraudulent
concealment of plaintiffs= legal malpractice claim.
Moreover, the court determined that plaintiffs= allegations
were adequate to support the application of principles of
equitable estoppel as well, holding that the allegations of
plaintiffs= complaint indicated plaintiffs had Areasonably relied
on Mr. Burciaga=s conduct and representation that their
medical malpractice suit was going well in forbearing suit until
the year 2000.@ 359 Ill. App. 3d at 552-54. The court noted
plaintiffs= averments that: (1) Burciaga handled all
communications with plaintiffs, since only he spoke Spanish,
and therefore only he could communicate directly with the
plaintiffs; (2) Burciaga conducted meetings with plaintiffs in
1989, the spring of 1992, and the summer of 1997, and in each
of those meetings he told the plaintiffs that their case was
Agoing very well@; (3) in the 1997 meeting, Burciaga told the
plaintiffs that there was no need for him to be in more frequent
contact with them about the case and that the frequency of his
contacts was adequate; (4) Burciaga never told the plaintiffs in
any of those meetings that their medical malpractice case had
been filed without the section 2B622 affidavit, that the trial court
-6-
had dismissed their medical malpractice action due to the
absence of the affidavit, and that the supreme court, in
February of 1992, had held that section 2B622 was
constitutional and had affirmed the dismissal of their medical
malpractice action; and (5) plaintiffs did not learn of these facts
until the year 2000, when Rathsack wrote them an explanatory
letter. 359 Ill. App. 3d at 552.
The court rejected Burciaga=s contention that plaintiffs
should be barred from raising the issues of fraudulent
concealment or equitable estoppel because they could have
discovered the facts allegedly concealed from them, noting that
Burciaga=s conduct was not such as to put plaintiffs on notice
that they should check court files to ascertain the status of their
case. 359 Ill. App. 3d at 554. Therefore, the appellate court
reversed and remanded for further proceedings. 359 Ill. App.
3d at 554.
ANALYSIS
This appeal presents the following issues for review: (1)
whether the statute of repose for legal malpractice is tolled
during a plaintiff=s minority; (2) whether Burciaga waived
arguments that the statute of repose may not be tolled on
grounds of fraudulent concealment or equitable estoppel; (3)
whether the statute of repose for legal malpractice may be
tolled on grounds of fraudulent concealment; (4) whether the
statute of repose for legal malpractice may be tolled on
grounds of equitable estoppel; and (5) whether, if we hold that
the statute of repose for legal malpractice is not tolled for
fraudulent concealment or equitable estoppel, the legal
malpractice statute of repose is rendered unconstitutional. We
begin our analysis with a recitation of general principles of
review and statutory construction.
A motion to dismiss, pursuant to section 2B619 of the Code,
admits the legal sufficiency of the plaintiffs= complaint, but
asserts an affirmative defense or other matter that avoids or
defeats the plaintiffs= claim. Borowiec v. Gateway 2000, Inc.,
209 Ill. 2d 376, 413 (2004). Section 2B619 motions present a
-7-
question of law, and we review rulings thereon de novo.
Borowiec, 209 Ill. 2d at 413.
The construction of a statute is also a question of law,
which we review de novo. In re Estate of Dierkes, 191 Ill. 2d
326, 330 (2000). The primary objective of this court when
construing the meaning of a statute is to ascertain and give
effect to the intent of the legislature. Southern Illinoisan v.
Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006).
The plain language of a statute is the most reliable indication of
the legislature=s objectives in enacting that particular law
(Southern Illinoisan, 218 Ill. 2d at 415), and when the language
of the statute is clear, it must be applied as written without
resort to aids or tools of interpretation.
However, if the language of a statute is ambiguous, courts
may look to tools of interpretation to ascertain the meaning of a
provision. People v. Taylor, 221 Ill. 2d 157, 163 (2006);
Balmoral Racing Club, Inc. v. Topinka, 334 Ill. App. 3d 454,
460 (2002). It is appropriate statutory construction to consider
similar and related enactments, though not strictly in pari
materia. People v. Masterson, 207 Ill. 2d 305, 329 (2003);
Board of Education of City of Chicago v. A, C & S, Inc., 131 Ill.
2d 428, 468 (1989). We must presume that several statutes
relating to the same subject are governed by one spirit and a
single policy, and that the legislature intended the several
statutes to be consistent and harmonious. Masterson, 207 Ill.
2d at 329; People ex rel. Killeen v. Kankakee School District
No. 11, 48 Ill. 2d 419, 422 (1971). Where the intent of the
legislature is otherwise clear, the judiciary possesses the
authority to read language into a statute which has been
omitted through legislative oversight. Masterson, 207 Ill. 2d at
329. A fundamental principle of statutory construction is to view
all provisions of a statutory enactment as a whole. Accordingly,
words and phrases should not be construed in isolation, but
must be interpreted in light of other relevant provisions of the
statute. Southern Illinoisan, 218 Ill. 2d at 415. In construing a
statute, we presume that the legislature, in its enactment of
legislation, did not intend absurdity, inconvenience or injustice.
Southern Illinoisan, 218 Ill. 2d at 415, citing Burger v. Lutheran
General Hospital, 198 Ill. 2d 21, 40 (2001). With these
-8-
principles in mind, we first consider whether the statute of
repose for legal malpractice is tolled during a plaintiff=s minority
pursuant to the provisions of subsection (e) of section
13B214.3 of the Code.
Subsection (e) of section 13B214.3 provides, AIf 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.@ 735 ILCS 5/13B214.3(e)
(West 2000). The crux of the parties= disagreement on this
issue concerns the construction of the phrase Aperiod of
limitations,@ as employed in subsection (e). Defendant Burciaga
argues that the term unambiguously refers to a Astatute of
limitations,@ and thus tolls only the time period referenced in
subsection (b) of section 13B214.3, not the statutory period of
repose set forth in subsection (c). Plaintiffs contend that the
phrase Aperiod of limitations@ refers to both subsections (b) and
(c) of section 13B214.3, tolling both time periods until plaintiffs
reach the age of majority.
We note, initially, that a statute of repose differs from a
statute of limitations in that a statute of limitations governs the
time within which lawsuits may be commenced after a cause of
action has accrued, while a statute of repose extinguishes the
action itself after a fixed period of time, regardless of when the
action accrued. Ferguson v. McKenzie, 202 Ill. 2d 304, 311
(2001). A statute of repose gives effect to a policy different
from that advanced by a statute of limitations insofar as it 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. As will appear hereafter, in our discussion of fraudulent
concealment, implementation of the policies underlying these
periods of limitation has not always been logically consistent.
We begin our analysis of subsection (e) of section 13B214.3
with the observation that it is included within article XIII of the
Code of Civil Procedure, an article entitled ALimitations.@
Although the time limitations set forth within that article are
ones we commonly refer to as statutes of Alimitations@ or
Arepose,@ it is noteworthy that the legislature rarely employs
-9-
that precise terminology to distinguish between the two. In
article XIII, only section 13B204 uses the term Arepose@ within
the body of the statute; the only other statute to even mention a
Astatute of repose@ is section 13B213, and that reference is in
the title of the section. The terms Astatute of limitations@ and
Astatute of repose@ do not appear anywhere in section
13B214.3, the section setting forth time limitations on the
prosecution of legal malpractice actions. Since both statutes of
limitations and statutes of repose are addressed under the
semantic umbrella of ALimitations,@ in the context of article XIII,
it would seem that the term Aperiod of limitations,@ as used in
subsection (e) of section 13B214.3, could refer to a Astatute of
limitations,@ a Astatute of repose,@ or it could be a
comprehensive reference to the time limitations set forth in
both subsections (b) and (c) of the statuteBwhat might be
considered a Aperiod of limitations@ in the broadest sense. The
legislature obviously knows the difference between a statute of
limitations and a statute of repose, as those terms are
usedBthough sparinglyBin article XIII. Therefore, the legislature
could have used those terms in subsection (e) to make clear its
intent, or it could have placed a reference to subsection (b) in
subsection (e) if it had meant the latter to apply only to the
former. Either measure would have made plain the legislature=s
intent. It did neither. Thus, we are left to speculate as to the
meaning the legislature attributed to the term Aperiod of
limitations@ in subsection (e) of section 13B214.3.
With that observation, we do not mean to be overly critical
of the legislature, as this court has been guilty of similar literal
laxity. In the seminal case of Anderson v. Wagner, 79 Ill. 2d
295, 322 (1979), this court referred to a statute of repose,
generically, as a Alimitation period@ and a Astatute of
limitations.@ The court did the same thing in Bruso v. Alexian
Brothers Hospital, 178 Ill. 2d 445, 453 (1997). In Bruso, this
court referred to Athe general statute of limitations for medical
malpractice actionsBtwo years from the date of discovery or
four years from the date of the occurrence.@ Bruso, 178 Ill. 2d
at 453. Though this court used the term Astatute of limitations,@
the court was obviously referring to both the statute of
limitations and the general statute of repose. In a subsequent
-10-
sentence, the Bruso court used the term Aextended limitations
period@ to refer to the extended period of repose applicable to
minors. Bruso, 178 Ill. 2d at 453.
Suffice it to say that the unqualified and imprecise use of
terms like Alimitations period@ or Aperiod of limitations,@ when
referring to either a statute of limitations or a statute of repose,
unnecessarily interjects ambiguity into opinions and statutes.
Because the term Aperiod of limitations@ is ambiguous in the
context of section 13B214.3, we look to other tools of
interpretation to ascertain the meaning of subsection (e).
We note, first, the location of subsection (e) within the
overall structure of section 13B214.3. The legislature chose to
place subsection (e), a tolling provision, in a separate
subsection following subsection (b), which contains the statute
of limitations for legal malpractice actions, and subsection (c),
which contains the statute of repose. The location of
subsection (e), within section 13B214.3, is significant for
purposes of statutory construction.
In Bruso, this court sought to ascertain the intent of the
legislature with respect to subsection (c) of section 13B212 of
the Code. Section 13B212 sets forth time limitations on the
filing of medical malpractice actions. Subsection (c) of section
13B212 contains a tolling provision, which states as follows: AIf
the person entitled to bring an action described in this Section
is, at the time the cause of action accrued, under a legal
disability other than being under the age of 18 years, then the
period of limitations does not begin to run until the disability is
removed.@ 735 ILCS 5/13B212(c) (West 1994). This court found
the location of subsection (c) significant in concluding that
subsection (c) tolled a statute of limitations and general statute
of repose set forth in subsection (a) of the statute, as well as a
special statute of repose in subsection (b), applicable only to
minors. In Bruso, this court concluded:
ASubsection (c) is clearly intended to act as an
exception to both subsections (a) and (b). If the
legislature had intended legal disability to be an
exception for adults only, the logical place for that
exception would have been in, or immediately following,
subsection (a). The legislature, however, chose to
-11-
locate the tolling provision for legal disability in a
separate subsection following subsections (a) and (b).@
Bruso, 178 Ill. 2d at 453.
The observation we made in Bruso applies with equal force
in this case. If the legislature had intended subsection (e) of
section 13B214.3 to apply only to the statute of limitations
contained in subsection (b), it could have placed that tolling
provision Ain, or immediately following,@ subsection (b).
However, the legislature chose, instead, to locate the tolling
provision for minors in a separate subsection following
subsections (b) and (c). It is, therefore, reasonable to infer that
it was meant to apply to both.
Moreover, we have previously acknowledged that language
similar to that used in subsection (e) is effective to toll both a
statute of limitations and a statute of repose. Prior to 1987, the
second paragraph of section 13B212 provided:
AIf the person entitled to bring the [medical
malpractice] action is, at the time the cause of action
occurred, under the age of 18 years, or under legal
disability ***, the period of limitations does not begin to
run until the disability is removed.@ (Emphasis added.)
Ill. Rev. Stat. 1985, ch. 110, par. 13B212.
In Antunes v. Sookhakitch, 146 Ill. 2d 477, 489, 491-92 (1992),
and again in Bruso, 178 Ill. 2d at 452-53, 457, this court
acknowledged that the foregoing provision effectively tolled the
statutes of limitations and repose contained in the pre-1987
version of section 13B212. In Antunes, this court cited
legislative history as an indication that the legislature
apparently construed the tolling provision in the same manner.
See Antunes, 146 Ill. 2d at 491-92. The language employed in
subsection (e) of section 13B214.3 is, for all pertinent
purposes, identical to that employed in the pre-1987 version of
section 13B212. There is no discernible justification for
construing subsection (e) differently.
Although the legislature saw fit to amend section 13B212 in
1987, creating an extended statute of repose Awhere the
person entitled to bring the action was, at the time the cause of
action accrued, under the age of 18 years,@ and otherwise
-12-
maintaining a tolling provision for those Aunder legal disability
other than being under the age of 18@ at the time the cause of
action accrued (Ill. Rev. Stat. 1987, ch. 110, pars. 13B212 (b),
(c)), the legislature left the provisions of subsection (e) of
section 13B214.3 unchanged. We are unwilling to assume that
the legislature=s inaction is the result of inadvertence. As we
stated in Bruso, the purpose of tolling provisions for legal
disability is to protect the rights of those who are not competent
to do so themselves. Bruso, 178 Ill. 2d at 454. It has long been
the policy of this state that courts should carefully guard the
rights of minors (Ferguson, 202 Ill. 2d at 313), and that a minor
should not be precluded from enforcing his or her rights unless
clearly barred from doing so (Bruso, 178 Ill. 2d at 454-55).
For the foregoing reasons, we conclude that subsection (e)
of section 13B214.3 tolls the statutes of limitations and repose
set forth in subsections (b) and (c). Therefore, as plaintiffs
contend, the legal malpractice action brought on behalf of
Sonia and Susanna was timely filed. All four plaintiffs were
minors when the alleged malpractice occurred. Oscar was born
on March 31, 1974; Griselda was born on May 15, 1975;
Susanna was born on May 24, 1980; and Sonia was born on
July 3, 1983. Oscar reached the age of 18 years on March 31,
1992, while Griselda, Susanna, and Sonia turned 18 years of
age on May 15, 1993, May 24, 1998, and July 3, 2001,
respectively. Plaintiffs= legal malpractice action was filed on
February 20, 2001. Thus, Sonia had not yet turned 18 when
the action was filed, and it was filed within six years of the date
on which Susanna reached the age of majority. With the
application of the tolling provisions of subsection (e), the
plaintiffs= legal malpractice action was timely filed as to Sonia
and Susanna, but was still untimely as to Oscar and Griselda,
since the action was filed more than six years after they turned
18. Therefore, if Oscar=s and Griselda=s causes of action are to
survive, some other tolling provision or exception must apply,
which brings us to the issue of fraudulent concealment.
As a threshold matter, we acknowledge plaintiffs= argument
that Burciaga has Awaived the contention that section
[13B214.3] impliedly bars a court from applying section
[13B215] and equitable estoppel to lawyers.@ Our review of the
-13-
briefs and the record indicates that these issues were properly
preserved below and have been adequately addressed in the
briefs filed with this court; consequently, we reject plaintiffs=
procedural default argument.
Section 13B215 provides, AIf 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 5/13B215 (West 2000)).
The plain language of section 13B215 refers to Aan action,@
without qualification as to the type of action to which it applies.
In that regard it is like section 13B216 (735 ILCS 5/13B216
(West 2000)), which refers, generically, to Aan action,@
excluding the time during which the commencement of Aan
action@is stayed from Athe time limited for the commencement
of the action.@
Moreover, like section 13B216, the legislature chose to
situate section 13B215 after a series of other
sectionsBcontaining both statutes of limitations and statutes of
reposeBincluding provisions pertaining to actions for medical
malpractice, product liability, acts or omissions in construction
practice, criminal acts, acts or omissions in public accounting,
and legal malpractice. Utilizing the positional analysis
employed in Bruso, it can be inferred that section 13B215
applies to all of the preceding sections. See Bruso, 178 Ill. 2d
at 453. Furthermore, from 1991 until 1996, prior to the time
section 13B214.4 was added to article XIII, section 13B215 was
actually positioned Aimmediately following@ section 13B214.3,
an additional indication that section 13B215 was meant to apply
to section 13B214.3. See Bruso, 178 Ill. 2d at 453 (reasoning if
the legislature had intended a statutory exception to apply to a
particular limitation provision, the Alogical place for that
exception@ would have been Ain, or immediately following,@ that
limitation provision). Clearly, section 13B214.3 addresses Aan
action@ to which section 13B215 applies.
The question, then, is whether the legislature intended
section 13B215 as a tolling provision or exception applicable to
statutes of repose, as well as statutes of limitations. We
-14-
recognize, at the outset, that section 13B215 speaks in terms of
when a person Adiscovers@ that he or she has a cause of
action, and that statutes of repose are 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 See Ferguson, 202 Ill. 2d at 311. When a
person Aknew or reasonably should have known@ of the
circumstances giving rise to his or her cause of action is,
therefore, more commonly a consideration in the application of
statutes of limitations. See 735 ILCS 5/13B212(a), 13B213(d),
13B214(a), 13B214.2(a), 13B214.3(b) (West 2000). While the
use of the term Adiscovers@ in section 13B215 might, arguably,
be taken as an indication that section 13B215 was intended as
a tolling provision or exception applicable only to statutes of
limitations, prior statements of this court, relevant actions of the
legislature, and basic principles of justice and reason coalesce
to refute any such contention.
In Anderson v. Wagner, 79 Ill. 2d 295, 321-22 (1979), this
court first suggested, in dictum, that a statute of repose might
be tolled by the fraudulent concealment provisions of section
22 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 23)
(now codified as 735 ILCS 5/13B215 (West 2004)) if fraudulent
concealment of a cause of action spanned the entire limitation
period. Although this court variously referred to the A4-year
maximum limitation period,@ and the Astatute of limitations,@ it is
clear from this court=s discussion that it was referring to the
four-year limitation period of the medical malpractice statute of
repose. See Anderson, 79 Ill. 2d at 321-22. In Anderson, this
court concluded its discussion with a caveat and an exhortation
to the legislature:
ABy discussing section 22 of the Limitations Act we
do not hold that it is applicable in medical malpractice
cases. That question is not before us. There are,
however, uncertainties concerning the applicability of
section 22 of the Limitations Act which we need not
resolve in this opinion but to which we invite the
attention of the General Assembly.@ See Anderson, 79
Ill. 2d at 322.
-15-
Two years after Anderson, this court filed its opinion in
Witherell v. Weimer, 85 Ill. 2d 146 (1981). In Witherell, plaintiff
argued that the defendant doctors should have been
precluded, by the fraudulent concealment provisions of section
22 of the Limitations Act, from raising the medical malpractice
statute of limitations as a bar to the action. Although Witherell
involved a statute of limitations, rather than a statute of repose,
what was said in Witherell is pertinent to our analysis in this
case.
In Witherell, this court declined to address plaintiff=s
fraudulent concealment issue, stating:
AWe need not here consider whether section 22 is
applicable to medical malpractice cases, a question left
unresolved in Anderson v. Wagner (1979), 79 Ill. 2d
295, 322, nor whether the alleged conduct of the
doctors comes within the scope of that statute. In our
opinion, generally accepted principles of equitable
estoppel prevent the defendant doctors from urging the
limitations bar.@ Witherell, 85 Ill. 2d at 158.
Continuing, this court quoted from the Supreme Court=s opinion
in Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231,
232-33, 3 L. Ed. 2d 770, 772, 79 S. Ct. 760, 762 (1959):
A >To decide the case we need look no further than
the maxim that no man may take advantage of his own
wrong. Deeply rooted in our jurisprudence this principle
has been applied in many diverse classes of cases by
both law and equity courts and has frequently been
employed to bar inequitable reliance on statutes of
limitations.= @ Witherell, 85 Ill. 2d at 158.
This court ultimately determined that principles of equitable
estoppel applied irrespective of whether defendants
intentionally misled plaintiff. The court noted, A >all that is
necessary for invocation of the doctrine of equitable estoppel is
that the plaintiff reasonably rely on the defendant=s conduct or
representations in forbearing suit.= @ Witherell, 85 Ill. 2d at 159,
quoting Bomba v W.L. Belvidere, Inc., 579 F.2d 1067, 1071
(7th Cir. 1978). Observing that numerous cases had
characterized the doctor-patient relationship as Aa fiduciary
-16-
one,@ this court acknowledged that Athe relationship between a
doctor and his patient is one in which the patient normally
reposes a great deal of trust and confidence in the doctor,
accepting his recommendations without question.@ Witherell, 85
Ill. 2d at 159. The court concluded: AIn the circumstances
alleged to be present here, we believe that considerations of
fundamental fairness require that the defendant doctors be
held estopped by their conduct from now urging that plaintiff
should have sooner complained against them for a condition
they repeatedly assured her she did not have.@ Witherell, 85 Ill.
2d at 160.
Immediately after the Witherell decision, and obviously in
response to it (see Cangemi v. Advocate South Suburban
Hospital, 364 Ill. App. 3d 446, 465 n.4 (2006)), and possibly
Anderson as well, the legislature amended the medical
malpractice statutes of limitations and repose to specifically
reference the fraudulent concealment statute. The first version
of the statute provided, in part, that no medical malpractice
action could Abe 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
except as provided in Section 13B215 of this Act.@ See Ill. Rev.
Stat. 1983, ch. 110, par. 13B212. When the legislature
subsequently amended the statute, placing the statute of
limitations and a general statute of repose in subsection (a),
and an extended statute of repose for minors in subsection (b),
the legislature was careful to include references to section
13B215 in each subsection, unequivocally making section
13B215 an exception applicable to both the medical
malpractice statute of limitations and the statutes of repose.
See Ill. Rev. Stat. 1987, ch. 110, pars. 13B212(a), (b).
The amendments to section 13B212 made clear, for the first
time, the legislature=s intent to apply the provisions of section
13B215 to statutes of repose, notwithstanding any arguable
logical inconsistency. Although the legislature had previously
stated, in section 13B214 (pertaining to actions premised on
acts or omissions in construction), that the Alimitations@
contained therein would Anot apply to *** fraudulent
concealment of causes of action@ (Ill. Rev. Stat. 1981, ch. 110,
-17-
par. 13B214 (f)), the legislature had never before included a
specific reference to section 13B215 (or its antecedent, section
22) in a statutory subsection containing a statute of repose.
While some might well point out that a plaintiff=s knowledge
of his or her cause of action should be irrelevant where a
statute of repose is concerned, as a 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 (see Ferguson, 202 Ill.
2d at 311), there would be an obvious and gross injustice in a
rule that allows a defendantBparticularly a defendant who
stands in a fiduciary relationship to the plaintiffBto conceal the
plaintiff=s cause of action and then benefit from a statute of
repose. Clearly, the legislature recognized the potential for
injustice, and amended section 13B212 accordingly, when this
court questioned the applicability of fraudulent concealment
provisions in Anderson, and hesitated to apply those provisions
in Witherell.
Subsequent to the amendments, in Cunningham v.
Huffman, 154 Ill. 2d 398, 407 (1993), this court recognized that
the provisions of section 13B215 would apply to a statute of
repose. Again, in dictum, this court stated Aneither [a] statute of
limitations nor [a] statute of repose would be triggered@ if a
physician purposely concealed the discovery of his negligence.
This court noted: AIn the cases of nondisclosure, the fraudulent
concealment provision in section 13B215 of the Code affords
the patient five years after discovery of the cause of action to
commence the suit.@ Cunningham, 154 Ill. 2d at 407.
Thereafter, in Morris v. Margulis, 197 Ill. 2d 28, 37-38
(2001), this court concluded that it did not have to decide
whether section 13B215 tolled the statute of limitations in
section 13B214.3(b), or whether the defendants had
fraudulently concealed plaintiff=s breach of fiduciary duty claim,
because plaintiff had admitted that he knew of the facts forming
the basis of his claim shortly after the cause of action arose.
In this case, the issue of section 13B215=s applicability to
section 13B214.3(c) is squarely presented and has been
thoroughly briefed and argued by the parties. We see no
reason why section 13B215 should not apply to statutes of
-18-
repose, including the statute of repose contained in subsection
(c) of section 13B214.3.
In prior decisions, this court has acknowledged that statutes
of repose may be tolled by statutory provisions relating to legal
disability (see Bruso, 178 Ill. 2d at 453, 457; Antunes, 146 Ill.
2d at 489, 491-92), and has suggested, in dictum, prior to the
1982 amendments of section 13B212, that section 13B215=s
fraudulent concealment provisions might toll the medical
malpractice statute of repose. See Anderson, 79 Ill. 2d at 321-
22. Subsequently, by incorporating specific references to
section 13B215 in section 13B212 of the Code, the legislature
has unequivocally indicated that it did indeed intend section
13B215 to be an exception applicable to statutes of repose set
forth therein, as this court recognized thereafter in
Cunningham. See Cunningham, 154 Ill. 2d at 407 (Aneither [a]
statute of limitations nor [a] statute of repose would be
triggered@ if a physician purposely concealed the discovery of
his negligence). There is no reason to believe that the
legislature intended to treat attorneys differently than
physicians.
In Horwitz v. Holabird & Root, 212 Ill. 2d 1, 16-17 (2004),
we recognized the weighty obligations attorneys undertake in
the practice of law, quoting from the preamble to the Rules of
Professional Conduct:
A >The practice of law is a public trust. Lawyers are
the trustees of the system by which citizens resolve
disputes among themselves, punish and deter crime,
and determine their relative rights and responsibilities
toward each other and their government. Lawyers
therefore are responsible for *** maintaining public
confidence in the system of justice by acting
competently and with loyalty to the best interests of their
clients; by working to improve that system to meet the
challenges of a rapidly changing society; and by
defending the integrity of the judicial system against
those who would corrupt, abuse or defraud it.= 134 Ill. 2d
Illinois Rules of Professional Conduct, Preamble, at
470.@
-19-
We have held that A[t]he attorney-client relationship constitutes
a fiduciary relationship.@ In re Winthrop, 219 Ill. 2d 526, 543
(2006); Horwitz, 212 Ill. 2d at 9. As we observed in Horwitz,
close monitoring of their attorney=s conduct would be
impossible for most clients, as they are not qualified to
undertake that type of monitoring. Horwitz, 212 Ill. 2d at 17.
Because those who utilize legal services place a great deal of
trust in their attorney, the attorney-client relationship presents a
significant potential for abuse. Cripe v. Leiter, 291 Ill. App. 3d
155, 160 (1997).
Given the nature of the attorney-client relationship, it is
inconceivable that the legislature would have intended to limit
physicians= reliance upon the medical malpractice statute of
repose, when physicians have fraudulently concealed a cause
of action from their patients, but to allow attorneys to benefit
from the legal malpractice statute of repose, where they have
done the same to their clients. We cannot imagine what
rational policy would possibly be furthered by that
differentiation. We must presume that the legislature, in its
enactment of legislation, did not intend absurdity or injustice.
Southern Illinoisan, 218 Ill. 2d at 415. It is our belief that the
legislature originally intended that section 13B215 apply to both
medical malpractice and legal malpractice limitation
enactments, and specifically incorporated references in section
13B212 only when this court expressed doubts concerning the
application of fraudulent concealment provisions in that
context. Thus, we hold that section 13B215, when applicable, is
an exception to the statute of repose contained in section
13B214.3(c) of the Code.
Although our holding today is not inconsistent with our
recent decision in Perlstein v. Wolk, 218 Ill. 2d 448, 452 (2006),
we deem it expedient at this juncture to comment on Perlstein,
as broad language utilized therein might be misconstrued as
inconsistent if not limited to the factual context of that case. In
Perlstein, a question before us was whether plaintiffs= legal
malpractice action was timely filed. In the course of addressing
that question, we discussed the consequences of our
invalidation of Public Act 89B7 in Best v. Taylor Machine
-20-
Works, 179 Ill. 2d 367 (1997). As we noted in Perlstein, prior to
the adoption of Public Act 89B7, section 13B214.3 of the Code
contained a two-year limitations period and a six-year repose
period for attorney malpractice actions (735 ILCS
5/13B214.3(b), (c) (West 1994)), as it does now, but also
included an exception to those provisions in subsection (d) of
the statute (735 ILCS 5/13B214.3(d) (West 1994)). That
exception provided:
AWhen 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.@ 735 ILCS 5/13B214.3(d) (West 1994).
Public Act 89B7, effective March 9, 1995, removed subsection
(d), but otherwise left intact the remaining provisions of section
13B214.3.
In Perlstein, plaintiffs= action was untimely filed under a
strict application of subsection (d) of section 13B214.3Bignoring
for purposes of this discussion other equitable considerations
we ultimately took into accountBbecause the action should
have been commenced Awithin the time for filing claims against
the estate or a petition contesting the validity of the will of the
deceased person, whichever is later.@ 735 ILCS 5/13B214.3(d)
(West 1994). It was not filed within that time frame. However,
the action was otherwise timely filed within the applicable
statutes of limitations and repose. See 735 ILCS
5/13B214.3(b), (c) (West 1994) Thus, we found it necessary in
Perlstein to discuss the consequences of our invalidation of
Public Act 89B7 and whether subsection (d) still applied.
In the course of our discussion in Perlstein, we stated, with
the passage of Public Act 89B7, Aa two-year limitations period
and a six-year repose period appliedBwithout exceptionBto all
-21-
attorney malpractice actions.@ (Emphasis added.) Perlstein,
218 Ill. 2d at 452. That broad statement must be limited to the
factual context in which it was made, i.e., a legal malpractice
action based upon negligent preparation of a will. This court did
not discuss the applicability of section 13B215 or 13B214.3(e),
or even mention those sections, which were not at issue. Given
the facts before this court, our unqualified statement in
Perlstein is correct insofar as there would have been no
applicable internal Aexceptions@ in section 13B214.3 after the
effective date of Public Act 89B7, had it withstood constitutional
scrutiny. However, the statement does not apply outside of its
factual context, it does not address the relationship between
sections 13B214.3 and 13B215, and it should not be read to
confuse Aexceptions,@ such as those in section 13B215 and
subsection (d) of section 13B214.3, with tolling provisions, such
as the one found in subsection (e) of section 13B214.3. With
that clarification, we consider whether plaintiffs have pled
sufficient facts to take advantage of the fraudulent concealment
provisions of section 13B215.
In Clay v. Kuhl, 189 Ill. 2d 603, 613 (2000), this court noted
that fraudulent concealment will Atoll@ a limitations period if a
plaintiff pleads and proves that fraud prevented discovery of
the cause of action. In Clay, the court stated, A[a]s a general
matter,@ a plaintiff alleging fraudulent concealment must
A >show affirmative acts by the fiduciary designed to prevent the
discovery of the action.= @ Clay, 189 Ill. 2d at 613, quoting
Hagney v. Lopeman, 147 Ill. 2d 458, 463 (1992). However, in
Hagney, this court quoted from Chicago Park District v.
Kenroy, Inc., 78 Ill. 2d 555, 562 (1980), recognizing that
affirmative acts or representations on the part of a fiduciary are
not always necessary:
A > A[i]t is the prevailing rule that, as between persons
sustaining a fiduciary or trust or other confidential
relationship toward each other, the person occupying
the relation of fiduciary or of confidence is under a duty
to reveal the facts to the plaintiff (the other party), and
that his silence when he ought to speak, or his failure to
disclose what he ought to disclose, is as much a fraud
-22-
at law as an actual affirmative false representation or
act; and that mere silence on his part as to a cause of
action, the facts giving rise to which it was his duty to
disclose, amounts to a fraudulent concealment ***.@ = @
Hagney, 147 Ill. 2d at 463, quoting Kenroy, 78 Ill. 2d at
562, quoting Annot., 173 A.L.R. 576, 588 (1948).
See also Crowell v. Bilandic, 81 Ill. 2d 422, 428 (1980) (AIt is
well established that fraudulent concealment sufficient to toll a
statute of limitations requires affirmative acts or
representations designed to prevent discovery of the cause of
action@; however, there is Aa widely recognized exception to
this general rule in those instances when the existence of a
fiduciary relationship is clearly established@).
Although this court, in Hagney, went on to insist upon strict
pleading requirements as a prerequisite to reliance upon
fraudulent concealment provisionsBstating that plaintiffs must
allege Athe trust which was reposed in the fiduciary prevented
the discovery of the cause of action@within the limitations period
(Hagney,147 Ill. 2d at 465)Bthe court did not repudiate the
principles espoused in Kenroy.
Indeed, four years after Hagney, this court implicitly
reaffirmed the principles expressed in Kenroy when the court
rendered its decision in Connick v. Suzuki Motor Co., 174 Ill.
2d 482 (1996). In Connick, this court held, in order to state a
claim of fraudulent concealment, Aa plaintiff must allege that the
defendant concealed a material fact when he was under a duty
to disclose that fact to plaintiff.@ Connick, 174 Ill. 2d at 500. This
court explained:
AA duty to disclose a material fact may arise out of
several situations. First, if plaintiff and defendant are in
a fiduciary or confidential relationship, then defendant is
under a duty to disclose all material facts. [Citations.]
Second, a duty to disclose material facts may arise out
of a situation where plaintiff places trust and confidence
in defendant, thereby placing defendant in a position of
influence and superiority over plaintiff.@ Connick, 174 Ill.
2d at 500.
-23-
Collectively, Kenroy, Hagney, and Connick stand for the
proposition that a fiduciary who is silent, and thus fails to fulfill
his duty to disclose material facts concerning the existence of a
cause of action, has fraudulently concealed that action, even
without affirmative acts or representations. We reaffirm and
apply that principle today.
As we have previously noted, A[t]he attorney-client
relationship constitutes a fiduciary relationship@ (In re Winthrop,
219 Ill. 2d at 543; Horwitz, 212 Ill. 2d at 9), one in which the
client is generally not qualified to monitor the technical aspects
and consequences of the attorney=s conduct. Horwitz, 212 Ill.
2d at 17. Thus, we have imposed an ethical obligation upon
members of the bar to keep clients apprised of major
developments in their cases. See In re Smith, 168 Ill. 2d 269,
280 (1995) (pursuant to Rule 1.4 (a) of the Illinois Rules of
Professional Conduct, attorneys have an ethical obligation to
keep clients informed and apprised of the status of their
cases). As our appellate court has observed, those who utilize
legal services place a great deal of trust in their attorneys;
consequently, the attorney-client relationship presents a
significant potential for abuse. See Cripe, 291 Ill. App. 3d at
160. When, in the course of his or her professional dealings
with a client, an attorney unnecessarily exposes a client to a
risk of loss or otherwise jeopardizes the pecuniary interests of
the client, the attorney has breached a duty to the client. In re
Rosin, 118 Ill. 2d 365, 388 (1987), quoting In re Saladino, 71 Ill.
2d 263, 276 (1978). With these observations and principles in
mind, we turn to the allegations of plaintiffs= complaint.
The alleged negligence here involved Burciaga=s filing of
the underlying medical malpractice action without attaching an
affidavit as required by section 2B622, and his failure to ensure
that the dismissal of the action against Dr. Treister was without
prejudice. Those acts occurred in 1986 and 1987, respectively.
Therefore, in the absence of an applicable tolling provision or
exception, the six-year statute of repose would have expired at
the latest by 1993, eight years prior to the filing of this legal
malpractice action in 2001. Plaintiffs contend that they have
-24-
pled facts sufficient to bring them within the purview of section
13B215, and we agree.
In their fourth amended complaint, plaintiffs allege that
Burciaga was retained by the special administrator of Alicia
DeLuna=s estate to represent the plaintiffs in a medical-
malpractice/wrongful-death action against Dr. Treister and St.
Elizabeth=s Hospital. Thus, a fiduciary relationship existed
between Burciaga and the plaintiffs.
We note, as a general rule, an attorney owes a duty only to
one who is his client; however, an exception to the general rule
has been recognized in limited circumstances when an
attorney is hired by a client specifically for the purpose of
benefitting a third party. See Schwartz v. Cortelloni, 177 Ill. 2d
166, 174-75 (1997); Pelham v. Griesheimer, 92 Ill. 2d 13, 21
(1982); In re Estate of Lis, 365 Ill. App. 3d 1, 14-18 (2006). The
key factor to be considered in determining whether a duty is
owed to a third party is whether the attorney acted at the
direction of, or on behalf of, the client for the benefit of the third
party. Schwartz, 177 Ill. 2d at 175, citing Pelham, 92 Ill. 2d at
21. It is here alleged that Burciaga was retained to prosecute a
medical-malpractice/wrongful-death action. A wrongful-death
action, if filed, must Abe brought by and in the names of the
personal representatives of [the] deceased person *** for the
exclusive benefit of the surviving spouse and next of kin.@ 740
ILCS 180/2 (West 2004). Plaintiffs, as the surviving children of
Alicia DeLuna, were her next of kin, and the wrongful-death
action was indisputably brought for their benefit. Under the
circumstances, we hold that the requirement of Schwartz and
Pelham is met, and Burciaga did indeed owe plaintiffs a
fiduciary duty.
In their complaint, plaintiffs further allege that Burciaga,
their fiduciary, failed to reveal pertinent facts giving rise to the
legal malpractice action at various stages of his representation.
Among other things, he failed to inform plaintiffs that he was
intentionally filing the underlying medical malpractice action
without the requisite section 2B622 affidavit in order to test the
constitutionality of the statute, thereby depriving them of the
opportunity to make informed decisions regarding their
-25-
representation, and unnecessarily jeopardizing the viability of
their cause of action.
Plaintiffs also allege that Burciaga affirmatively misled them
in the spring of 1992 when he told them, in an office
conference attended by Oscar, that their case was Agoing very
well.@ Contrary to Burciaga=s misrepresentation, as of February
25, 1987, the circuit court had in fact dismissed their medical
malpractice action as to both defendants, due to the absence
of the required affidavit, and this court had affirmed the
dismissal on February 20, 1992. In effect, the case against Dr.
Treister was over. The result was adverse to plaintiffs and, with
this court=s affirmance of the dismissal, conclusive; however,
Burciaga failed to disclose material facts bearing upon the
procedural status of plaintiffs= case, at a meeting where such a
disclosure should have been made, and at a time when
plaintiffs could have taken some action against Burciaga
without running afoul of the statute of repose.
Plaintiffs complaint further alleges that in a subsequent
office conference, attended by Oscar and Griselda in the
summer of 1997, Burciaga again told them that the case was
Agoing very well@ and that Athere was no need for him to be in
more frequent contact with them about the case.@ According to
the allegations of plaintiffs= complaint, it was not until March 24,
2000, that attorney Michael Rathsack sent a letter to Oscar
DeLuna, informing the DeLunas, for the first time, that Burciaga
had used their medical malpractice action to test the
constitutionality of section 2B622, that their medical malpractice
action against Dr. Treister was barred, and that they might
have an action for legal malpractice against Burciaga.
In their complaint, plaintiffs note that Burciaga Ahandle[d] all
communications with the DeLunas since only he spoke
Spanish and therefore only he could communicate directly with
the DeLunas.@ The inescapable import of that assertion is that
the DeLunas could not speak English. Plaintiffs further alleged
that they Arelied in good faith on Burciaga=s reassurances and
assertions that the case was going very well as being the
truth,@ and, consequently, they did not investigate the status of
their case.
-26-
We conclude that plaintiffs= allegations, if proven, are
sufficient to establish Burciaga=s fraudulent concealment of
facts supporting plaintiffs= legal malpractice cause of action.
Those allegations indicate that Burciaga, their fiduciary,
pursued a course of conduct intended to conceal the facts
giving rise to their legal malpractice action by assuring
plaintiffs, in the spring of 1992, as the deadline of the legal
malpractice statute of repose approached, that their case was
Agoing very well,@ by failing to advise them, at that meeting, of
the true status of their case, by again offering assurances,
during a meeting in the summer of 1997, that the case was
Agoing very well,@ and by further advising plaintiffs that there
was no need to contact him more frequently about the status of
the case.
Moreover, we find the allegations of plaintiffs= complaint
sufficient to meet the pleading requirements set forth in
Hagney assuming, arguendo, that those requirements are
necessary under the facts of this case. See Barratt v.
Goldberg, 296 Ill. App. 3d 252, 258 (1998) (noting Hagney=s
pleading requirement and distinguishing Jackson Jordan, Inc.
v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 251-53 (1994), on the
basis that the Adefendant law firm in that case made continuous
reassurances to the plaintiff, which delayed plaintiff=s filing of
her suit@). Plaintiffs in this case allege that they Arelied in good
faith on Burciaga=s reassurances and assertions that the case
was going very well as being the truth,@ and, consequently,
they did not investigate the status of their case. Given
Burciaga=s assurances, and the fact that the plaintiffs in this
case obviously could not speak English, and may well have
been unable to read it, we do not believe that plaintiffs were
required to conduct their own courthouse investigation.
Because of language barriers, they were even less qualified
than Amost clients *** to undertake that type of monitoring.@ See
Horwitz, 212 Ill. 2d at 17. Moreover, in light of Burciaga=s
assurances and reassurances, they had no reason to think
such an investigation was necessary. Cf. Jackson Jordan, Inc.,
158 Ill. 2d at 251-53 (applying principles of equitable estoppel
to a statute of limitations defense in a legal malpractice case
-27-
where Athe client was lulled into a false sense of security by the
firm=s soothing reassurances and advice@).
Pursuant to the provisions of section 13B215, plaintiffs had
five years after discovery of their causes of action to file their
legal malpractice suit. 735 ILCS 5/13B215 (West 2000). They
discovered their causes of action against Burciaga when, in
March of 2000, Rathsack informed them by letter of the true
circumstances surrounding their case. They filed their legal
malpractice action in February of 2001, well within the five-year
period. Accordingly, we find that the allegations of plaintiffs=
complaint, if proven, support a finding that Oscar=s and
Griselda=s legal malpractice action was timely filed within the
limitations period set forth in section 13B215 of the Code.
The result would be no different if we were to analyze this
case using principles of equitable estoppel. A party claiming
estoppel must demonstrate that: (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. Geddes v. Mill Creek Country Club,
Inc., 196 Ill. 2d 302, 313-14 (2001). As this court noted in
Jackson Jordan:
A > A[I]t is not necessary that the defendant intentionally
mislead or deceive the plaintiff, or even intend by its
conduct to induce delay. [Citations.] Rather, all that is
necessary for invocation of the doctrine of equitable
estoppel is that the plaintiff reasonably rely on the
defendant=s conduct or representations in forbearing
suit.@ = @ Jackson Jordan, Inc., 158 Ill. 2d at 252, quoting
-28-
Witherell, 85 Ill. 2d at 159, quoting Bomba v. W.L.
Belvidere, Inc., 579 F.2d 1067, 1071 (7th Cir. 1978).
In Jackson Jordan, this court was confronted with
circumstances which were, for all pertinent purposes,
indistinguishable from those now before us. This court held that
principles of equitable estoppel barred the defendant law firm
from raising a statute of limitations as a defense in that legal
malpractice action. Given the facts of this case, in particular the
vulnerability of the plaintiffs and the blatantly false status report
Burciaga gave them in the spring of 1992, one might well argue
that the impetus and justification for applying equitable
estoppel in this instance would be even greater than in
Jackson Jordan.
However, in light of our holding on the issue of fraudulent
concealment, and our analysis in that regard, which either
overtly or implicitly addresses and subsumes considerations
pertinent to the doctrine of equitable estoppel, we find it
unnecessary to hold that principles of equitable estoppel apply
in this case. It is our prerogative to forgo the determination of
issues unnecessary to the outcome of the case. DeSmet v.
County of Rock Island, 219 Ill. 2d 497, 509 (2006). Moreover,
there is no need to address plaintiffs= constitutional issue.
Since we have held that the allegations of plaintiffs= complaint
are sufficient, if proven, to establish fraudulent concealment of
their causes of action, plaintiffs= constitutional argument is now
moot.
Before we conclude, we wish to take this opportunity to
encourage the legislature to undertake a comprehensive
review of article XIII provisions pertaining to statutes of
limitations and repose. Greater specificity and uniformity in that
area of the Code would obviate the need for courts to so often
speculate as to the General Assembly=s intent.
In sum, we hold that plaintiffs= legal malpractice action was
timely filed as to Sonia and Susanna because subsection (e) of
section 13B214.3 tolled the legal malpractice statute of repose.
Further, we find that the allegations of plaintiffs= complaint are
sufficient, if proven, to establish fraudulent concealment of
plaintiffs= causes of action by Burciaga. Thus, assuming that
-29-
plaintiffs can prove the allegations of their complaint, the action
was timely filed as to Oscar and Griselda as well. For the
foregoing reasons, we affirm in part and reverse in part the
judgment of the appellate court, reverse the judgment of the
circuit court, and remand this cause to the circuit court for
further proceedings consistent with this opinion.
Appellate court judgment affirmed
in part and reversed in part;
circuit court judgment reversed;
cause remanded.
CHIEF JUSTICE THOMAS and JUSTICE BURKE took no
part in the consideration or decision of this case.
-30-