| KATHLEEN O'BRIEN, | ) | Appeal from the Circuit Court |
| Plaintiff-Appellant, | ) | for the 14th Judicial Circuit, |
| ) | Mercer County, Illinois | |
| ) | ||
| v. | ) | No. 2001-L-2 |
| ) | ||
| DOUGLAS C. SCOVIL, | ) | Honorable |
| Defendant-Appellee. | ) | James J. Mesich |
| ) | Judge, Presiding |
Plaintiff Kathleen O'Brien brought this legal malpracticeaction against defendant Douglas Scovil alleging that he failed tosecure her one-half interest in her ex-husband's pension pursuantto the judgment of dissolution of her marriage. The trial courtheld that Kathleen's complaint was barred under the six-yearattorney malpractice statute of repose (735 ILCS 5/13-214.3(c)(West 2000)) and granted judgment on the pleadings in favor ofattorney Scovil. We hold that the legal malpractice statute ofrepose commences with the last act of representation upon which themalpractice is founded even where the malpractice was the omissionof a duty that was to be completed at a future date.
FACTS
Kathleen retained Scovil in February of 1992 to represent herin her pending dissolution of marriage action. At a hearing inJuly of 1993, the court allocated Kathleen 50% of her ex-husband'spension but did not enter a specific order. Instead, whenKathleen's ex-husband received the current pension valuation, hisattorney was to provide a copy for the court and forward a copy toKathleen's attorney. The judgment of dissolution was entered inApril of 1994. It stated that a supplemental order or a qualifieddomestic relations order (QDRO) was to be entered to divide thepension.
Attorney Scovil last appeared as counsel of record forKathleen in April of 1994. Scovil asserts that he spoke toKathleen on one occasion after his April 1994 court appearance toinform her that he would no longer act as her attorney until shemade arrangements to pay her outstanding bill. Scovil ultimatelywrote off Kathleen's account on January 31, 1995. Kathleen claimsthat Scovil never terminated his representation of her. WhenKathleen's ex-husband died in February of 2000, she discovered thatan order dividing the pension had never been entered and that theproceeds had been paid to third parties. Kathleen filed a legalmalpractice claim against Scovil on January 31, 2001.
ANALYSIS The sole issue on appeal is whether the trial court erred whenit dismissed Kathleen's legal malpractice claim pursuant to section2-619(5) of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-619(5)) (West 2000)) because the claim was barred by the statute ofrepose (735 ILCS 5/13-214.3(c) (West 2000)). The standard ofreview is de novo. Weidman v. Wilkie, 277 Ill. App. 3d 448, 660N.E.2d 157 (1995).
Kathleen argues that the statute of repose commenced inFebruary of 2000 when her ex-husband died and she became precludedfrom receiving any proceeds from his pension. Kathleen points outthat Scovil had an ongoing duty to perform a future act and claimsthat Scovil never terminated his representation of her.
Section 2-619(5) of the Civil Code (735 ILCS 5/2-619(5) (West2000)) authorizes the dismissal of a complaint for failure to filewithin the repose period. The attorney malpractice statute ofrepose designates that an action may not be commenced more than sixyears after the date on which the negligent act or omissionoccurred. 735 ILCS 5/13-214.3(c) (West 2000).
The statute of repose is designed to put a limit on the periodof time that one can commence an action. Sorenson v. Law Offices ofTheodore Poehlmann, 327 Ill. App. 3d 706, 764 N.E.2d 1227 (2002). It terminates the right to bring an action when the event givingrise to the action did not happen within a specified time. Goodmanv. Harbor Market, Ltd., 278 Ill. App. 3d 684, 663 N.E.2d 13 (1995). Because the omissions causing the injury must occur in the contextof some affirmative act of representation, the period of reposemust begin when the acts of representation end, even if continuingomissions may contribute to the injury. Fricka v. Bauer, 309 Ill.App. 3d 82, 722 N.E.2d 718 (1999).
It is clear that the last act of representation with regard tothe omission upon which the malpractice is founded is the criticaldate that triggers the statute of repose. The troublesome questionin this case is determining when the last act of representationoccurred. The record indicates that Scovil last appeared ascounsel of record in April of 1994. While the parties are indispute as to the status of their relationship thereafter, it isundisputed that Scovil wrote off Kathleen's account on January 31,1995. Though we do not know an exact date, it must be presumedthat the attorney-client relationship ended before January 31,1995. Thus, since Kathleen did not file her complaint until morethan six years after the representation ended, her malpracticecomplaint is barred by the six-year statute of repose.
Kathleen contends that Scovil's allegedly neglect omission didnot occur until February of 2000 when her ex-husband died and shediscovered that she was never made the recipient of his pension. But the statute of repose is not subject to the discovery rule. See Fricka, 309 Ill. App. 3d at 88, 722 N.E.2d at 723 (noting theabsence of discovery rule language in the statute of repose). Because the statute of repose was designed to place an outer limiton the time in which claims may be brought, it is immaterial thatKathleen did not discover her injury before it was barred. SeeGoodman, 278 Ill. App. 3d at 691, 663 N.E.2d at 18 (holding thatthe injury caused by the event need not have occurred or beendiscovered before the statute of repose bars the action). While welament that this holding seems harsh, we must point out that we donot make the laws. We must interpret them as written.
For the foregoing reasons, the judgment of the circuit courtof Mercer County is affirmed.
Affirmed.
HOMER and SLATER, JJ., concur.