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McIntosh v. Cueto
State: Illinois
Court: 5th District Appellate
Docket No: 5-99-0717 Rel
Case Date: 06/28/2001
                      NOTICE
Decision filed 06/28/01.  The text of
this decision may be changed or
corrected prior to the filing of a 
Petition for Rehearing or the
disposition of the same.

NO. 5-99-0717

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


MICHELLE McINTOSH and ELAINE DINGES,

         Plaintiffs-Appellants,

v.

AMIEL CUETO, Individually and as an Agent for
CUETO, DALEY, WILLIAMS, MOORE & CUETO,
LTD.,

         Defendants-Appellees.

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Appeal from the
Circuit Court of
St. Clair County.

No. 98-L-999A



Honorable
Randall A. Bono,
Judge, presiding.

 

JUSTICE HOPKINS delivered the opinion of the court:

Michelle McIntosh and Elaine Dinges (formerly Elaine McIntosh) (collectively,plaintiffs) appeal from the trial court's grant of summary judgment in favor of Amiel Cuetoand his law firm, Cueto, Daley, Williams, Moore & Cueto, Ltd. (collectively, defendants). Plaintiffs claim that defendants are guilty of legal malpractice for having allowed the statuteof limitations on plaintiffs' medical malpractice claim to run without filing a complaint. Plaintiffs argue that even though they filed their legal malpractice case beyond the legalmalpractice statute of limitations (735 ILCS 5/13-212 (West 1998)), defendants should beestopped from using that statute of limitations as a defense, because defendants are guiltyof fraudulently concealing the fact that a medical malpractice action was never filed. Weaffirm the trial court because plaintiffs never pled equitable estoppel or fraudulentconcealment and they did not request leave of court to amend their pleadings.

FACTS

On November 20, 1998, plaintiffs filed a complaint against defendants. In count Iof that complaint, Michelle alleged that she was born on February 3, 1970, and that Elainewas her mother. Count I alleged, "As a result of negligent acts on the part of one or moremedical care providers during the course of [her] birth, she suffers from impairment in herhearing, schizophrenia, and other disabilities." Count I also alleged that a valid cause ofaction arose on behalf of Michelle due to the problems surrounding her birth.

Michelle further alleged that on June 6, 1987, she and her mother entered into acontract with Cueto, whereby Cueto agreed to represent Elaine on behalf of Michelle in themedical malpractice case. Michelle alleged that Cueto breached his duty to her by failingto adequately investigate her medical malpractice claim, by failing to seek the advice of aphysician, by failing to file a medical malpractice lawsuit on her behalf, and by failing toinform her of his inaction in time for her to obtain other counsel. Michelle alleged that asa proximate result of Cueto's negligence, Michelle's medical malpractice claim was "foreverbarred, leaving her without just compensation."

Count II of the complaint makes basically the same allegations as count I but is onbehalf of Elaine as the plaintiff rather than Michelle. Count I does not allege a separateinjury incurred by Elaine personally.

Count I continues with additional allegations that are not contained in count II. Count I alleges that on September 14, 1993, and again on November 29, 1993, Elaine wroteto Cueto, "attempting to get information regarding the status of her case"; that Cueto failedto respond to either letter; that he continued to maintain a file on plaintiffs' case but did notperform any work on their behalf after January 27, 1988; and that Michelle failed to discoverthe facts giving rise to her cause of action against Cueto "due to the trust and confidence"that she placed in Cueto.

Defendants filed an answer and an affirmative defense to each of the two counts. Intheir affirmative defenses, defendants alleged that plaintiffs' cause of action was "notcommenced within the time limited by law and is, therefore, barred by the applicable statuteof limitations." See 735 ILCS 5/13-214.3 (West 1998) (the legal malpractice statute oflimitations). Plaintiffs filed a response to defendants' affirmative defenses, in which theydenied the allegations of the affirmative defenses, but plaintiffs did not allege that any otherstatute of limitations should apply.

As an amendment to the record on appeal, defendants submitted plaintiffs' answersto interrogatories, dated March 25, 1999. In those answers, Elaine stated that she sent lettersto Cueto in September and November 1993. In those letters, Elaine complained that she hadnot been able to contact Cueto by telephone, that he did not return her phone calls, and thatshe was concerned about the status of her case. In the letter of September 1993, Elainestated, in pertinent part, that she called Cueto's office "a number of times" in the precedingsix years and that "another attorney, [Cueto's] brother," told her that a suit had been filed andthat it would take a long time to settle. Also in that letter, Elaine stated that when she askedfor her file, Cueto's brother called and asked some questions about the case and promisedto get back to her but never did. In the November 1993 letter, Elaine stated that she did notreceive a response to her letter of September 1993, so she enclosed a typewritten copy of theSeptember letter in her November correspondence.

In Elaine's answers to interrogatories, she stated: "I spoke on the telephone withChristopher Cueto at least three times during the late summer and fall of 1993. I wasassured the case was progressing, suit had been filed, and there was an expert in Texas thatthey intended to consult with about the case."

After the parties conducted discovery, defendants filed a motion for summaryjudgment, claiming essentially that (1) under the legal malpractice statute of limitations, thecomplaint against defendants should have been filed within two years of the time plaintiffsknew or reasonably should have known of the loss of the medical malpractice action and (2)in any event, under the statute of repose, the complaint should have been filed not more thansix years after the date on which the act or omission occurred. Defendants contended thatthe statute of limitations would have run no later than January 1, 1993, and that the statuteof repose would have expired on January 1, 1997, nearly two years before plaintiffs filedtheir complaint.

Plaintiffs filed a response to defendants' motion for summary judgment, arguing thatdefendants "failed to address the statutory limitations provision that is applicable to thiscase." In their response, plaintiffs contended that defendants' conduct, "as alleged in thepleadings, amounts to fraudulent concealment." Plaintiffs claimed that the correct statuteof limitations provides as follows:

"If a person liable to an action fraudulently conceals the cause of such actionfrom the knowledge of the person entitled thereto, the action may be commenced atany time within 5 years after the person entitled to bring the same discovers that heor she has such cause of action, and not afterwards." 735 ILCS 5/13-215 (West1998).

Plaintiffs further alleged in their response that during a phone conversation in 1993a member of Cueto's firm misrepresented the status of the medical malpractice lawsuit. Plaintiffs alleged that in that conversation, the attorney told Elaine that a lawsuit had beenfiled on plaintiffs' behalf and that plaintiffs were not able to find out that the medicalmalpractice case had not been filed until they filed an action in discovery in 1998. Plaintiffsargued that they are well within the fraudulent concealment statute of limitations becauseas soon as they discovered the fraudulent concealment, they filed the instant lawsuit. Plaintiffs contended that the trial court should find that the fraudulent concealment statuteof limitations applied, hold defendants equitably estopped from asserting the legalmalpractice statute of limitations as a defense, and deny defendants' motion for summaryjudgment.

A hearing was scheduled on the motion for summary judgment, but there is notranscript of this proceeding in our record. On October 15, 1999, the trial court entered anorder stating that the parties briefed the issues and appeared by counsel for argument. Thecourt ruled as follows: "Although the court finds the facts and issues presented in this mattertroubling, it appears that the statute of limitations and statute of repose control, andSummary Judgment must therefore be GRANTED." Plaintiffs did not ask the court toreconsider this ruling, nor did they request leave to amend their pleadings. Plaintiffs fileda timely notice of appeal.

ANALYSIS

Plaintiffs argue that the trial court erred in failing to apply equitable estoppel in thiscase. Plaintiffs' theory is that the trial court should have found defendants equitablyestopped from using a statute-of-limitations defense because they fraudulently concealed thefact that no medical malpractice lawsuit had been filed. Defendants counter that plaintiffsdid not plead equitable estoppel in the trial court and so cannot raise the issue on appeal. Defendants contend that the real issue is whether plaintiffs' action for legal malpractice isbarred as untimely pursuant to the legal malpractice statute of limitations and statute ofrepose. The correct statement of the issue is somewhere in between: Did plaintiffs' failureto plead equitable estoppel through fraudulent concealment bar the trial court fromconsidering that issue when it was raised as a part of the discovery prior to the motion forsummary judgment? Under the circumstances of this case, we reach the unfortunate butinescapable conclusion that the trial court was correct in granting a summary judgment infavor of defendants.

Since this case was decided on a motion for summary judgment, our standard ofreview is de novo; we seek to determine whether defendants were entitled to a judgment asa matter of law. See Pagano v. Occidental Chemical Corp., 257 Ill. App. 3d 905 (1994). In ruling on a motion for summary judgment, the court is required to construe all relevantevidentiary material strictly against the movant and liberally in favor of the nonmovant. Pagano, 257 Ill. App. 3d at 908. If the evidentiary material before the court could lead tomore than one conclusion or inference, the court must adopt the conclusion or inference thatis most favorable to the opponent of the motion. Pagano, 257 Ill. App. 3d at 908-09.

In Pagano, the court considered a grant of a motion for summary judgment in favorof the defendant, and in doing so, the court stated these additional rules, which are relevantto this appeal:

"A plaintiff fixes the issues in controversy and the theories upon which recovery issought by the allegations in his complaint. The very purpose of a complaint is toadvise the defendant of the claim it is called upon to meet. [Citation.] In ruling ona motion for summary judgment, the court looks to the pleadings to determine theissues in controversy. If the defendant is entitled to judgment as a matter of law onthe claims as pled by the plaintiff, the motion will be granted without regard to thepresence of evidentiary material which might create a right of recovery *** on someunpled claim or theory. Under the Code of Civil Procedure, a plaintiff's remedy insuch a circumstance is to move to file an amended complaint before the summaryjudgment is granted ***. [Citation.] Having failed to seek relief ***, the plaintiffwill not be heard to complain that summary judgment was inappropriately grantedbecause of the existence of evidence supporting a theory *** that he never pled in hiscomplaint." Pagano, 257 Ill. App. 3d at 911.

In the case at bar, plaintiffs filed a two-count complaint charging defendants withlegal malpractice. Later, in response to defendants' motion for summary judgment, plaintiffsargued that defendants should be estopped from using the legal malpractice statute oflimitations as a defense because defendants fraudulently concealed the fact that they did notfile a complaint for medical malpractice and because plaintiffs reasonably relied upon thisuntruth until it was too late to file such a complaint, i.e., the medical malpractice statute oflimitations had run. Therefore, plaintiffs claim a right to recovery not only based upon legalmalpractice but also based upon equitable estoppel through fraudulent concealment.

Plaintiffs argued in oral arguments before this court that the fraudulent concealmentdoctrine is not a cause of action but only a statute of limitations and that, as such, a plaintiffdoes not have to plead fraudulent concealment in order to take advantage of it as a longerstatute of limitations. However, both equitable estoppel and fraudulent concealment mustbe pled to be available. Parks v. Kownacki, 193 Ill. 2d 164, 180 (2000) (equitable estoppel);Maness v. Santa Fe Park Enterprises, Inc., 298 Ill. App. 3d 1014, 1023 (1998) (equitableestoppel); Hirsch v. Feuer, 299 Ill. App. 3d 1076, 1086-87 (1998) (fraudulent concealment);Barratt v. Goldberg, 296 Ill. App. 3d 252, 258 (1998) (fraudulent concealment).

"To establish equitable estoppel, the party claiming estoppel must demonstratethat: (1) the other party misrepresented or concealed material facts; (2) the other partyknew at the time the representations were made that the representations were untrue;(3) the party claiming estoppel did not know that the representations were untruewhen the representations were made and when they were acted upon; (4) the otherparty intended or reasonably expected the representations to be acted upon by theparty claiming estoppel or by the public generally; (5) the party claiming estoppelreasonably relied upon the representations in good faith and to their detriment; and(6) the party claiming estoppel has been prejudiced by his reliance on therepresentations." Parks, 193 Ill. 2d at 180.

Clearly, count II of the complaint, which names only Elaine as the plaintiff, does notallege any facts that could possibly amount to equitable estoppel through fraudulentconcealment. There are no facts alleged in count II regarding any misrepresentation orconcealment, no facts regarding detrimental reliance, and no facts regarding any prejudiceresulting to Elaine because of any misrepresentation or concealment.

Count I comes closer to stating a cause of action for equitable estoppel but also fallsfar short of the specificity necessary to such a claim. The only facts in count I that could beinterpreted as alleging equitable estoppel are that Elaine wrote letters to Cueto, that Cuetodid not respond to those letters, and that Michelle failed to discover the facts giving rise toher cause of action against Cueto due to the trust and confidence that she placed in him. These allegations do not amount to a cause of action for equitable estoppel againstdefendants because there are no facts to show why it was reasonable for Michelle to placetrust and confidence in unanswered calls and letters or why she waited 11 years after hiringCueto to discover that he did not file a lawsuit on her behalf.

Plaintiffs argued in their response to the motion for summary judgment that Elainewas unaware of the "true facts of the case up until [defendants'] file was produced in 1998,a feat that required the filing of an action in discovery to accomplish." Plaintiffs do notaddress the question of why they chose to file an action in discovery instead of simplychecking the circuit court records to learn whether any case had been filed naming Michelleand Elaine as plaintiffs. We cannot hold defendants equitably estopped from asserting astatute-of-limitations defense where plaintiffs had the ability to learn through a simple andfree process long before the limitations period ended that no case had been filed on theirbehalf. " 'A party claiming the benefit of an estoppel cannot shut his eyes to obvious facts,or neglect to seek information that is easily accessible, and then charge his ignorance toothers.' " Nickels v. Reid, 277 Ill. App. 3d 849, 856 (1996) (quoting Vail v. NorthwesternMutual Life Insurance Co., 192 Ill. 567, 570 (1901)); see also Dancor International, Ltd.v. Friedman, Goldberg & Mintz, 288 Ill. App. 3d 666, 676-77 (1997) (the fraudulentconcealment statute does not apply to a party who, through the exercise of ordinarydiligence, could have discovered the concealed information).

Since we find that defendants are not estopped from asserting the statute-of-limitations defense, the question becomes whether the trial court correctly found that thelegal malpractice statute of limitations and statute of repose barred plaintiffs' complaint. Thestatute of limitations governing actions against attorneys (735 ILCS 5/13-214.3 (West1998)) became effective January 1, 1991, at a time when plaintiffs' attorney-clientrelationship with defendants was still in effect. Under subsection (b) of that statute,plaintiffs had two years from the time they knew or reasonably should have known of theinjury within which to file suit. 735 ILCS 5/13-214.3(b) (West 1998). Subsection (c) of thatstatute provides that any such action may not be commenced "in any event" more than sixyears "after the date on which the act or omission occurred." 735 ILCS 5/13-214.3(c) (West1998).

According to the allegations in plaintiffs' complaint, the legal malpractice actionagainst defendants is based upon the loss of their medical malpractice action. Therefore, wemust figure the approximate date beyond which the medical malpractice case could nolonger be filed, in order to determine the event that triggers the running of the legalmalpractice period of limitations. The applicable medical malpractice statute of limitationsfor those who are minors when the action accrues provides, in relevant part, that no actionfor damages for injury or death against a physician, hospital, or other medical provider shallbe brought more than eight years after the date on which the malpractice occurred, wherethe claimant was, at that time, under age 18, "provided, however, that in no event may thecause of action be brought after the person's 22nd birthday." 735 ILCS 5/13-212(b) (West1998). Under any interpretation of the statute, the latest date to file any medical malpracticeaction based upon injuries occurring at Michelle's birth would have been her twenty-secondbirthday, February 3, 1992. Beyond that date, Michelle was barred from filing a medicalmalpractice action for injuries caused at her birth. Since defendants did not file a medicalmalpractice action on behalf of either Michelle or Elaine prior to February 3, 1992, that isthe date upon which the legal malpractice statute of limitations began to run.

The legal malpractice statute of limitations provides that an action for damagesagainst an attorney arising out of an act or omission in the performance of professionalservices must be commenced within two years from the time the person knew or reasonablyshould have known of his or her injuries. 735 ILCS 5/13-214.3(b) (West 1998). The nextsubsection, however, provides that a legal malpractice action may not be commenced in anyevent more than six years after the date on which the act or omission occurred. 735 ILCS5/13-214.3(c) (West 1998). Thus, on February 3, 1998, six years after the medicalmalpractice action was barred, the legal malpractice action based upon the loss of thatmedical malpractice action was barred as well. Since plaintiffs' complaint againstdefendants was not filed until November 20, 1998, that complaint is barred by the legalmalpractice statute of limitations and statute of repose. The trial court correctly grantedsummary judgment in favor of defendants.

Affirmed.

MAAG and RARICK, JJ., concur.

 

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