                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Pugsley v. Tueth, 2012 IL App (4th) 110070




Appellate Court            LISA PUGSLEY and LORI DUNN, Plaintiffs, and JERROLD H.
Caption                    STOCKS, JOSEPH R. WETZEL, and WINTERS, FEATHERSTUN,
                           GAUMER, POSTLEWAIT, STOCKS & FLYNN, on Behalf of LISA
                           PUGSLEY and LORI DUNN, Intervenors-Appellants, v. JAMES E.
                           TUETH, Defendant-Appellee.



District & No.             Fourth District
                           Docket No. 4-11-0070


Argued                     January 11, 2012
Filed                      February 9, 2012


Held                       A legal malpractice action alleging that defendant attorney failed to
(Note: This syllabus       comply with the alleged request of plaintiffs’ mother to “deed the farm
constitutes no part of     to the girls” was improperly dismissed as untimely on the ground that the
the opinion of the court   action was filed after the six-month limitations period in section 13-
but has been prepared      214.3(d) of the Code of Civil Procedure applicable to actions when an
by the Reporter of         attorney’s omission occurs upon the death of a client, since plaintiffs’
Decisions for the          injury occurred at a time unrelated to their mother’s death, namely, when
convenience of the         defendant failed to comply with the request to or when the husband of
reader.)
                           plaintiffs’ mother renounced the mother’s will, and, therefore, the two-
                           year limitations period in section 13-214.3(b) applied, and plaintiffs’
                           action filed within two years of either the husband’s renunciation or the
                           time defendant did not satisfy the mother’s request was timely.
Decision Under             Appeal from the Circuit Court of Piatt County, No. 09-L-3; the Hon. John
Review                     P. Shonkwiler, Judge, presiding.



Judgment                   Reversed and remanded.


Counsel on                 Karen L. Kendall and Craig L. Unrath (argued), both of Heyl, Royster,
Appeal                     Voelker & Allen, of Peoria, and Scott D. Spooner and John O.
                           Langfelder, both of Heyl, Royster, Voelker & Allen, of Springfield, for
                           appellants.

                           Kenneth D. Reifsteck (argued), of Thomas, Mamer & Haughey, LLP, of
                           Champaign, for appellee.


Panel                      JUSTICE APPLETON delivered the judgment of the court, with opinion.
                           Justice Knecht concurred in the judgment and opinion.
                           Justice Cook specially concurred, with opinion.




                                             OPINION

¶1          Intervenors, Jerrold H. Stocks, Joseph R. Wetzel, and Winters, Featherstun, Gaumer,
        Postlewait, Stocks & Flynn, appeal the circuit court’s order granting defendant James E.
        Tueth’s motion to dismiss plaintiffs’ complaint on statute of limitations grounds. Plaintiffs,
        Lisa Pugsley and Lori Dunn, filed suit against Tueth, an attorney, for legal malpractice,
        alleging Tueth failed to convey certain real estate to plaintiffs from their mother, Tueth’s
        client. Attorneys Stocks and Wetzel, who are attorneys with the Winters, Featherstun law
        firm, initially represented plaintiffs in their lawsuit against Tueth, but withdrew from
        representation when it appeared that plaintiffs’ interests were in conflict with the firm’s.
        Stocks and Wetzel then moved to intervene when plaintiffs notified them they would be the
        subject of a legal-malpractice lawsuit for not timely filing the lawsuit against Tueth. The
        intervenors’ position is that plaintiffs’ lawsuit was timely against Tueth. We agree with the
        intervenors’ position and, accordingly, reverse the court’s order dismissing the lawsuit and
        remand for further proceedings.

¶2                                     I. BACKGROUND
¶3         In February 2009, plaintiffs, while represented by attorneys Stocks and Wetzel of the

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       Winters, Featherstun firm, filed a three-count complaint against Tueth, alleging legal
       malpractice, each of the three counts addressing a separate parcel of real estate. In the
       complaint, plaintiffs alleged that on March 7, 2007, their mother, Yvonne Haynes, who
       owned real estate in Macon County, met with her attorney, Tueth. Yvonne’s real estate
       consisted of three tracts: 40 acres of farmland (referred to as “the back 40”); a second parcel
       (referred to as the “front tract”); and a parcel referred to as “the homestead.” Yvonne
       individually owned the back 40 in fee simple. She and her husband, Verne Haynes, owned
       the other two tracts in joint tenancy.
¶4         At the March 2007 meeting, Yvonne instructed Tueth to sever the joint tenancies and
       “deed the farm to the girls,” referring to plaintiffs. In response, Tueth advised Yvonne that
       her will would “take care of it.” Tueth did not present Yvonne with any subsequent deeds,
       and on May 25, 2007, Yvonne died. A copy of Yvonne’s will is not included in the record
       on appeal. Because neither party asserts differently, we assume the will provided as Yvonne
       had requested with regard to the back 40. Plaintiffs alleged they were third-party
       beneficiaries of the professional contractual relationship between Yvonne and Tueth and that
       Tueth breached his duty to Yvonne by not severing the joint tenancies and not deeding the
       parcels to plaintiffs.
¶5         Yvonne’s will was admitted to probate on June 15, 2007. The time to contest the validity
       of her will continued through December 18, 2007, and the time to file claims on her estate
       continued through December 21, 2007. On August 14, 2007, Verne renounced Yvonne’s
       will.
¶6         In May 2009, Tueth filed an answer to the complaint, admitting he had been retained to
       transfer the back 40, but he claims the transfer was to be made by Yvonne’s will. Tueth
       denied that Yvonne made the statement “deed the farm to the girls” in the “restricted fashion
       pleaded,” meaning, according to Tueth, Yvonne did not intend an immediate transfer. Tueth
       raised two affirmative defenses: (1) mutual mistake of fact; and (2) lack of consideration.
¶7         In March 2010, Stocks filed a motion to withdraw as counsel, claiming circumstances
       had developed which created “a difference in interests between attorney and client.” Jeffrey
       S. Deutschman assumed representation of plaintiffs.
¶8         In July 2010, Tueth filed a motion to amend his answer to include a third affirmative
       defense. He sought to include the defense that plaintiffs’ lawsuit was barred by the six-month
       statute of limitations applicable to legal malpractice actions when the attorney’s omission
       occurs upon the death of the client (735 ILCS 5/13-214.3(d) (West 1994)).
¶9         In August 2010, Tueth filed a motion to dismiss the complaint under section 2-619 of the
       Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2008)), claiming section 13-
       214.3(d) governed plaintiffs’ suit and required that plaintiffs’ complaint be filed on or before
       December 21, 2007, the expiration of the time period within which claims against the estate
       must have been filed.
¶ 10       Plaintiffs filed a response to Tueth’s motion to dismiss, claiming section 13-214.3(d) of
       the Code (735 ILCS 5/13-214.3(d) (West 1994)), here referred to as the Limitations Act, did
       not apply because plaintiffs’ injury occurred prior to Yvonne’s death when Tueth negligently
       assured her that it was not necessary to convey the property because her will would “take

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       care of it.” Attached to plaintiffs’ response was an affidavit prepared by Teena Koontz, who
       was present at Yvonne’s home with Tueth, Yvonne, and Pugsley when Yvonne executed her
       will. According to Koontz, Yvonne instructed Tueth to “deed the farm to the girls.” Tueth
       replied: “Kay, you do not need to worry, the will will take care of it.” Tueth did not explain
       that Verne had a right to renounce the will.
¶ 11       Also in August 2010, Deutschman filed a notice of an attorney’s lien upon the Winters,
       Featherstun firm, based on a claim that Stocks and Wetzel had failed to timely file plaintiffs’
       legal malpractice case against Tueth. Stocks, Wetzel, and the firm filed a motion for leave
       to intervene claiming they had an interest in the circuit court’s determination on whether
       plaintiffs’ complaint was timely filed. They asserted that section 13-214.3(d) of the
       Limitations Act did not apply because plaintiffs’ injury did not occur upon Yvonne’s death,
       but instead, upon Verne’s act of renouncing Yvonne’s will, triggering either a two-year
       statute of limitations under section 13-214.3(b) of the Limitations Act (735 ILCS 5/13-
       214.3(b) (West 1994)) or the six-year statute of repose under section 13-214.3(c) of the
       Limitations Act (735 ILCS 5/13-214.3(c) (West 1994)).
¶ 12       At the hearing on Tueth’s motion to dismiss, where no party presented evidence, the
       circuit court ruled that plaintiffs’ lawsuit was governed by section 13-214.3(d) of the
       Limitations Act and was, therefore, time barred. Upon questioning by the court, Tueth’s
       attorney admitted that Yvonne had said at the time she executed her will: “[D]eed the farm
       to the girls.” However, counsel believed “there [was] going to be factual dispute” as to the
       meaning of the phrase. Stocks’ attorney agreed “that’s an unresolved issue of fact.” However,
       after considering the parties’ arguments and the case law presented, the court agreed with
       Tueth and dismissed plaintiffs’ complaint as time barred pursuant to section 13-214.3(d) of
       the Limitations Act (735 ILCS 5/13-214.3(d) (West 1994)). This appeal followed.

¶ 13                                      II. ANALYSIS
¶ 14       Stocks, Wetzel, and the Winters, Featherstun law firm, as intervenors, appeal the circuit
       court’s order granting Tueth’s section 2-619 motion to dismiss. They claim (1) plaintiffs’
       injury occurred in August 2007 when Vernon renounced Yvonne’s will, (2) section 13-
       214.3(d) of the Limitations Act (735 ILCS 5/13-214.3(d) (West 1994)) does not apply, and
       (3) plaintiffs’ complaint was timely filed as it was filed within two years of plaintiffs’ injury
       pursuant to section 13-214.3(b) of the Limitations Act (735 ILCS 5/13-214.3(b) (West
       1994)).
¶ 15       We review a trial court’s decision to dismiss a complaint pursuant to section 2-619 of the
       Code (735 ILCS 5/2-619 (West 2008)) de novo. Sheffler v. Commonwealth Edison Co., 2011
       IL 110166, ¶ 23. A section 2-619 motion to dismiss disposes of issues of law and easily
       proved issues of fact at the outset of litigation. Van Meter v. Darien Park District, 207 Ill.
       2d 359, 367 (2003). The motion admits as true all well-pleaded facts and all reasonable
       inferences that can be determined from those facts. Porter v. Decatur Memorial Hospital,
       227 Ill. 2d 343, 352 (2008). When considering an appeal on a section 2-619 motion to
       dismiss, the reviewing court must consider whether there exists a disputed issue of material
       fact or whether dismissal is proper as a matter of law. Thurman v. Champaign Park District,


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       2011 IL App (4th) 101024, ¶ 18.
¶ 16        Section 13-214.3 of the Limitations Act provides for the periods of limitations and repose
       for legal-malpractice actions. It states, in relevant part, as follows:
                 “(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 or
            (ii) against a non-attorney employee arising out of an act or omission in the course of his
            or her employment by an attorney to assist the attorney in performing 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.
                 (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.” 735 ILCS 5/13-214.3(b), (c), (d) (West 1994).
¶ 17        The “discovery rule” is incorporated in the limitations period in subsection (b) above.
       That is, the statute of limitations is tolled until the plaintiff knows or reasonably should know
       of her injury. Snyder v. Heidelberger, 2011 IL 111052, ¶ 10. The statute of repose in
       subsection (c) operates “to curtail the ‘long tail’ of liability that may result from the
       discovery rule.” Snyder, 2011 IL 111052, ¶ 10 (quoting Sorenson v. Law Offices of Theodore
       Poehlmann, 327 Ill. App. 3d 706, 708 (2002)). The statute of repose is not linked to the date
       of injury but, instead, it precludes recovery after a fixed period of time. Snyder, 2011 IL
       111052, ¶ 10. In this case, plaintiffs’ action must have been commenced within six years
       “after the date on which the act or omission occurred.” 735 ILCS 5/13-214.3(c) (West 1994).
¶ 18        This case is similar to the supreme court’s recent decision in Snyder. There, in 2008, the
       plaintiff wife sued the attorney defendant for malpractice because in 1997, her husband had
       retained the attorney to deed their marital home, held in the husband’s name individually, to
       the couple in joint tenancy with right of survivorship. Snyder, 2011 IL 111052, ¶ 3. The
       attorney did so. In December 2007, the husband died. Upon his death, it was discovered that
       the marital home was held in a land trust, not in the husband’s name individually. Thereafter,
       the husband’s son, plaintiff’s stepson, the beneficiary of the land trust, sought plaintiff’s
       removal from the home. On February 28, 2008, plaintiff filed a two-count complaint. Count
       I alleged legal malpractice against defendant. Count II sought the imposition of a constructive
       trust against her stepson. Snyder, 2011 IL 111052, ¶ 2. The trial court dismissed the legal
       malpractice action as untimely, finding the plaintiff’s suit was barred by the six-year statute
       of repose in section 13-214.3(c) of the Limitations Act (735 ILCS 5/13-214.3(c) (West
       1994)). Snyder, 2011 IL 111052, ¶ 5. The Second District reversed, finding subsection (d)
       applied as the injury occurred upon the husband’s death in 2007. Snyder, 2011 IL 111052,


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       ¶ 6.
¶ 19       The supreme court reversed the appellate decision, finding the injury actually occurred
       upon the attorney’s alleged negligent act of preparing the deed. Snyder, 2011 IL 111052,
       ¶ 17. In so holding, the court distinguished the facts in Snyder from those in Wackrow v.
       Niemi, 231 Ill. 2d 418 (2008), a case relied upon by Tueth and the circuit court in this case.
¶ 20       In Wackrow, the defendant attorney prepared an amendment to a living trust by which
       his client, Woods, would give to his sister, the plaintiff, his residence or, if the residence was
       sold before he died, the sum of $300,000. After Woods died, the plaintiff sought to obtain
       the residence. The plaintiff discovered that Woods had owned the residence, not individually,
       but by a land trust. The plaintiff filed suit against the attorney, alleging he had failed to
       exercise reasonable care to determine the actual owner of the property prior to preparing the
       trust amendment. The circuit court granted the attorney’s section 2-619 motion to dismiss
       on the basis that the suit was barred as untimely pursuant to section 13-214.3(d) of the
       Limitations Act. The supreme court affirmed. Wackrow, 231 Ill. 2d at 428-29.
¶ 21       The Snyder court held that the “fundamental difference” between Wackrow and the facts
       before it was that the services rendered by the attorney to the husband in Snyder “were
       intended to have an immediate benefit during [his] lifetime.” Snyder, 2011 IL 111052, ¶ 14.
       Whereas, in Wackrow, Woods had retained the attorney to give his residence to his sister
       upon his death, and therefore, “ ‘[b]ecause Woods could have revoked [the trust] amendment
       or changed the beneficiary prior to his death, the injury did not occur until Woods’ death.’ ”
       Snyder, 2011 IL 111052, ¶ 14. In contrast, in Snyder, the injury occurred at the time the deed
       was prepared and executed. Snyder, 2011 IL 111052, ¶ 14. Thus, subsection (b) applied
       providing for a two-year statute of limitations. See 735 ILCS 5/13-214.3(b) (West 1994).
       However, because the plaintiff did not file her malpractice action until more than 10 years
       later, the 6-year statute of repose set forth in subsection (c) barred her claim. Snyder, 2011
       IL 111052, ¶ 17.
¶ 22       When determining whether section 13-214.3(d) is applicable, a court’s sole inquiry is
       whether the injury caused by the malpractice occurred upon the client’s death. Fitch v.
       McDermott, Will & Emery, LLP, 401 Ill. App. 3d 1006, 1022 (2010). With these authorities
       in mind, we must determine the date of injury to determine what statute of limitations period
       applies to this case. If the facts are more akin to Wackrow and plaintiffs’ injury occurred at
       Yvonne’s death, then subsection (d) applies to bar the lawsuit as untimely. If the facts are
       more akin to Snyder and plaintiffs’ injury occurred at a time other than upon Yvonne’s death,
       then subsection (b) applies, meaning plaintiff’s lawsuit was timely filed. After careful
       consideration, we find plaintiffs’ injury occurred either before Yvonne’s death or when
       Verne renounced the will, not upon Yvonne’s death. In fact, when Yvonne died, plaintiffs
       appeared to be getting ownership of the back 40, just as Yvonne had directed. It was not until
       Verne renounced the will that plaintiffs were deprived of their respective interests in that
       property. Whether Yvonne intended that plaintiffs were to receive a share of the other two
       parcels held in joint tenancy is a disputed issue for trial. Tueth could not have achieved
       Yvonne’s goal regarding the other two parcels with provisions in Yvonne’s will if those
       parcels were held in joint tenancy with a right of survivorship.


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¶ 23        Indeed, Tueth could have corrected his error prior to Yvonne’s death by preparing,
       executing, and recording the required deeds. Additionally, it is true that plaintiffs would not
       have been injured had Yvonne not died. Furthermore, Tueth was unable to correct his error
       once Yvonne died. However, Tueth’s alleged error of failing to prepare the deeds did not
       create an injury to plaintiffs upon Yvonne’s death. In fact, assuming Yvonne’s will
       adequately directed the disposition of the back 40, plaintiffs would have received the
       property through probate as she had desired. Instead, plaintiffs were injured when Verne
       renounced the will in August 2007, taking plaintiffs’ interests in that property from them. If
       it is determined that Tueth had been directed to deed the two other parcels to plaintiffs, then
       their injury occurred sometime between March and May 2007. Thus, as in Snyder, the injury
       occurred at a time unrelated to the client’s death. Snyder, 2011 IL 111052, ¶ 14.
¶ 24        At most, Yvonne’s death was the triggering event that led to Verne’s renunciation of the
       will–the event which can be specifically identified as the date of injury, if an injury occurred,
       in relation to the back 40. With regard to the other two parcels, if proved, Yvonne’s death
       precluded Tueth from correcting his error, which caused injury to the plaintiffs sometime
       between March and May 2007. See Snyder, 2011 IL 111052, ¶ 14 (the injury occurred at the
       time the deed was prepared, not upon the client’s death). Since the injury in this case, if any,
       occurred at a time unrelated to Yvonne’s death (either before her death for the two joint-
       tenancy parcels (between March and May 2007) or upon Verne’s renunciation of the will in
       August 2007 as to the back 40), the two-year limitations period contained in subsection (b)
       of the Limitations Act applies. See Snyder, 2011 IL 111052, ¶ 17. Thus, plaintiffs’ February
       2009 complaint was timely filed.

¶ 25                                   III. CONCLUSION
¶ 26       For the foregoing reasons, we hold the circuit court erred in granting defendant’s section
       2-619 motion to dismiss on the grounds plaintiffs’ lawsuit was time barred. We therefore
       reverse the judgment and remand for further proceedings.

¶ 27       Reversed and remanded.

¶ 28       JUSTICE COOK, specially concurring:
¶ 29       The statute of limitations for legal malpractice, set out in section 13-214.3(b), allows an
       action to be brought many years after the act or omission has occurred, “within 2 years from
       the time the person bringing the action knew or reasonably should have known of the injury.”
       735 ILCS 5/13-214.3(b) (West 1994). The statute of repose, set out in section 13-214.3(c),
       establishes a fixed cutoff point, “6 years after the date on which the act or omission
       occurred.” 735 ILCS 5/13-214.3(c) (West 1994). Section 13-214.3(d), which appears to deal
       with malpractice in the preparation of wills and the like, clearly extends the statute of repose
       in appropriate cases. If a lawyer has committed malpractice in the preparation of a will, and
       the testator dies 10 years later, the 6-year statute of repose does not apply, and the action may
       be commenced within 2 years of the death, or even later if “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

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       be brought within the time for filing claims or contesting the validity of the will. 735 ILCS
       5/13-214.3(d) (West 1994). In Illinois, letters of office or probate may be sought many years
       after the person’s death, but section 13-214.3(d) does not provide an unlimited extension,
       only an extension where the letters of office or probate are obtained within two years of the
       death.
¶ 30        Extending the statute of repose until the time for filing claims or contesting the validity
       of the will makes sense. A lawyer’s error may result in claims being filed against an estate
       or a will contest. But does section 13-214.3(d) ever shorten the statute of repose? And could
       section 13-214.3(d) even shorten the statute of limitations to a period less than two years
       from the date of the occurrence? It is unusual for a statute of repose to bar a claim prior to
       the minimal period allowed by the statute of limitations. Statutes of repose set an outside
       limit on actions, not a short limit. The section 13-214.3(c) statute of repose provides that it
       applies, “[e]xcept as provided in subsection (d),” but the section 13-214.3(b) statute of
       limitations does not contain such language. 735 ILCS 5/13-214.3(c) (West 1994). If section
       13-214.3(d) was intended only to extend the statute of repose, there was no reason to apply
       it to the two-year statute of limitations, which would not expire anyway until there was
       knowledge of the injury. What sense does it make for the statute of repose to be shortened
       to the time for filing claims or renouncing a will?
¶ 31        A fairly straightforward application of subsection (d) occurred in Petersen v. Wallach,
       198 Ill. 2d 439 (2002). In that case the attorney, providing estate-planning services,
       recommended plaintiff’s mother make substantial inter vivos gifts, which she did in 1990 and
       1991. On the mother’s death on November 10, 1996, however, the gifts were “added back”
       to her estate for tax purposes, resulting in a large tax increase. Plaintiff’s daughter filed suit
       November 9, 1998. The attorney argued subsection (d) did not apply, because the mother’s
       assets did not go through probate but passed via an inter vivos trust. The Illinois Supreme
       Court held that section 13-214.3(d) applies in all cases “when the alleged injury caused by
       the malpractice does not occur until the death of the client,” the language of section 13-
       214.3(d), regardless of whether the deceased client’s assets are distributed by probate, inter
       vivos trust, or some other mechanism. Petersen, 198 Ill. 2d at 448. Apparently the statute of
       repose was extended by the two-year provision of section 13-214.3(d) but not by any
       additional time for filing claims or contesting a will. Suit was filed the day before expiration
       of the two-year period. The attorney argued that applying section 13-214.3(d) to all attorney-
       malpractice cases, irrespective of the means of distributing decedent’s assets, could lead to
       absurd or unjust results, and the limitations period would actually be shortened in some
       cases. The Illinois Supreme Court responded that the possibility of an unjust or absurd result
       is generally not enough to avoid the application of a clearly worded statute. The court
       considered a hypothetical where the attorney prepared two wills, committing the same error
       in each, but one did not have to be probated because it involved less than $50,000,
       concluding that such disparate treatment would not be appropriate.
¶ 32        Things got more complicated in Wackrow v. Niemi, 231 Ill. 2d 418, where the attorney,
       on April 15, 2002, prepared an amendment to a living trust, directing the trustee to convey
       the settlor’s residence to his sister within two months of his death, or pay her $300,000 if the
       residence was sold prior to his death. Unfortunately, title to the residence was not in the

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       settlor’s name individually. The settlor died in August 2002; letters of office were issued and
       his will was admitted to probate October 23, 2002; the sister’s claim against the estate was
       denied October 24, 2003; and the malpractice action was filed December 27, 2004. The
       supreme court concluded that because the settlor could have revoked the amendment or
       changed the beneficiary prior to his death, the injury did not occur until the settlor’s death.
       Wackrow, 231 Ill. 2d at 425. The court rejected the sister’s argument that she was a third-
       party beneficiary of the legal services and that the malpractice occurred after the settlor’s
       death, when the administrator denied her claim. “[T]o accept plaintiff’s argument would
       eviscerate the repose provision set forth in section 13-214.3(d).” Wackrow, 231 Ill. 2d at 426.
       The court then reached the concern expressed in Petersen, holding that section 13-214.3(d)
       did not just extend the time for filing suit: “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.” (Emphasis in
       original.) Wackrow, 231 Ill. 2d at 427. Nothing in the statute conditions the application of
       subsection (d) on whether the repose period of subsection (c) has expired. “We recognize that
       the effect of the 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 she learns of
       her injury.” Id. However, the legislature intended to terminate the possibility of liability after
       a “defined period of time.” (Internal quotation marks omitted.) Wackrow, 231 Ill. 2d at 427.
¶ 33        The supreme court was able to avoid the application of section 13-214.3(d) in Snyder v.
       Heidelberger, 2011 IL 111052, which perhaps was not an estate-planning case. In Snyder,
       the attorney prepared a quitclaim deed from the husband to the husband and wife as joint
       tenants, but the property was held in a land trust and passed to the husband’s son on his
       death. The deed was prepared in 1997, the husband died in December 2007, and suit was
       filed February 28, 2008. The wife, citing Wackrow, argued that because her husband could
       have corrected the error at any time prior to his death, the injury did not occur until his death.
       The supreme court disagreed, holding that the six-year statute of repose barred the claim. The
       failure of the deed to create a joint tenancy caused a present injury that occurred at the time
       the deed was prepared, in contrast to the trust amendment in Wackrow that was intended to
       take effect upon the settlor’s death. The court rejected the idea there could be more than one
       injury. “We note that section 13-214.3(d) applies when ‘the injury caused by the act or
       omission does not occur until the death ***.’ [Citation.]” (Emphasis in original.) Snyder,
       2011 IL 111052, ¶ 16. The court was concerned with an overly broad construction of section
       13-214.3(d). “To accept [the wife’s] construction of the legal malpractice statute would mean
       that the limitations period would not begin to run in any case until the client died and the
       error could no longer be corrected. This would eviscerate the statute of repose.” Snyder, 2011
       IL 111052, ¶ 15. Justice Freeman, dissenting, believed that under Wackrow, the wife should
       have had two years from the date of her husband’s death to file suit. “Wackrow stands for the
       notion that, as long as the client who had intended to convey the interests to the plaintiff was
       still alive, the attorney’s error could be fixed by the drafting of a proper conveyance ***.”
       Snyder, 2011 IL 111052, ¶ 40, (Freeman, J., dissenting). Subsection (d) created an exception
       to the repose period in cases where the injury did not occur “until after the death” of the
       person for whom the legal services were rendered, in order to prevent sections 13-214.3(b)


                                                  -9-
       and 13-214.3(c) from creating a de facto bar to estate-planning legal malpractice. Snyder,
       2011 IL 111052, ¶ 38 (Freeman, J., dissenting).
¶ 34       Applying these concepts, it first should be noted that our case may be an estate-planning
       case, unlike Snyder. Yvonne spoke of a “deed,” but attorney Tueth said the will would “take
       care of it.” All three tracts could have been conveyed up until Yvonne’s death, as in
       Wackrow, but Snyder rejected that approach as to deeds which were intended to create a
       present interest. Deeds were executed in Snyder, but none were prepared here. The time for
       executing deeds expired with Yvonne’s death. Certainly as to the tracts held in joint tenancy,
       the will could not “take care of it”; deeds severing the joint tenancies were required. As to
       the tract held in fee simple, intent is important. Did Yvonne intend that her daughters have
       an immediate interest, or did she want the daughters to obtain the fee simple on her death?
       Was there some conflict between Yvonne and her husband? Should the possibility of
       renunciation of the will been anticipated and eliminated with an immediate deed?
¶ 35       In my view, a plaintiff filing a malpractice action should have at least two years to file
       his action. Section 13-214.3(d) should not be read to shorten the legal malpractice statute of
       limitations or statute of repose. I recognize that position was rejected in Wackrow, but the
       legislature should recognize the confusion caused by this statute and make any necessary
       changes. It is important that statutes of limitation and statutes of repose be clear and definite.
       The legislature should address whether section 13-214.3(d) can ever be used to shorten the
       statute of limitations or statute of repose. The legislature should also decide whether section
       13-214.3(d) applies to all malpractice actions, or only to those involving estate-planning
       concerns, carefully defining which actions are covered.




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