IL: Underlying Property action
Facts: Plaintiff’s were being sued by their neighbor who was trying to enjoin plaintiffs from doing construction on their land. Defendants were responsible for representing plaintiffs in the suit (Platenka suit). Plaintiffs allege that defendants breached their duty of care to plaintiffs by failing to advise plaintiffs adequately of Platenka’s claims and the remedies he sough; failing to do sufficient pretrial discovery or preparation of witnesses; failing to prepare plaintiff for deposition; inadequately advising plaintiffs of the legal effect of the trial court’s denial of Platenka’s request for a temporary restraining order; advising plaintiffs they could proceed with the order; advising plaintiffs they could proceed with the modifications of their property despite the pending litigation; failing to raise necessary defenses to Platenka’s suit; failing to appeal the judgment despite assuring plaintiffs that they would do so; failing to file a timely cross-appeal after Platenka appealed; and not advising plaintiffs to seek a variance for their property. Defendant filed motion to dismiss. The trial court granted defendant’s motion to dismiss because it was barred by the two-year statute of limitations. Plaintiff’s appeal.
Issue: Whether the trial court erred in granting defendant’s summary judgment motion?
Ruling: Yes. Fact issues as to when clients should have known of alleged malpractice precluded summary dismissal on statute of limitations grounds. “Ordinarily when a party becomes charged with knowledge that his injury was wrongfully caused, the beginning of the two-year period for bringing suit for attorney malpractice, is a question of fact” and “genuine issues of material fact existed as to when clients knew or should have known that their attorney may have committed malpractice either in the trial of the case or in failing to appeal or cross-appeal.” Therefore “defendant’s were not entitled to dismissal of complaint on the ground that if failed to plead date of discovery of cause of action for purposes of discovery of injury for purposes of discovery rule, where untimeliness of action was not apparent from face of complaint itself, but defendants raised statute of limitations defense and introduced affidavits and other evidence in attempt to prove that suit was untimely.”
Lesson: Defendant’s will not be granted summary where there is a material issue of fact.