exception to the statute of repose with respect to actions against attorneys for malpractise in so doing the lower courts ruled contrary to the interpretation this court has placed on that exception in the case of peterson vs wallach justice kilbride's opinion which stated that that exception that section section two one four point three  is an exception to the statute of repose allowing an estate or represent of the state extra time to pursue a claim for malpractise if the statute of riposte has already la this peterson controls i think it is persuasive i don't think that it controls but i think it is very persuasive judge and the interpretation of of that section the i i deliberately said that that was the court's interpretation of the statute but i did not say that it was the holding because that it it wasn't necessary to deal with this issue that we're dealing with today because in peterson the statue of repose had indeed last so they had to determine that the exception applied here the statue of repose has not lapsed so because the service is mystery at any performed for mr woods my client's brother will perform for months before he died in april two thousand and two so the first order of business it seems to me is to say does the statue of repose apply clearly it does not the statue repose had not lapse if the tonight let me clarify me clarify this point subsection v provides that when the injury caused by the act or omission does not occur until the death of the person for whom professional services were rendered the action may be commenced within two years after the date of the person's death right no no disputes over that's correct woods died in august two thousand and two right so under that provision one plane of them required claim until december of two thousand and four that's correct so her claim would not have been untimely even if the shorter six month period than the correct it would not have been entirely because she did not have a at that point that she had a claim against the lawyer had the executor accepted her claim which the executor was perfectly able to do entitle to do but did not have the executor accepted her claim she would have had no cause of action against mr  i'm sorry couple fall off track for a moment the reason for the existence of section subsection d is only for the statute of repose the court will note that s section c which is the sub which is the statue riposte specifically references d as an exception d does not exist as a statute of limitations or any other limitations on claims exist because you already have a statute of limitations for filing a claim you already have a limitations period in the probate act for the state to file claims or to accept claims that well the statute propose would would not have lapsed until two thousand and eight but her statute of limitations began to run when the claim was denied so she would have had six years under the statute i guess my point is left her claim would have been barred by the statue limitations two years after her claim against mr ne ne would have been barred by the statue of patients two years after her plane was denied in the state opposed really would have had any effect whatsoever has only is affected by the probate act to the extent that i had to file a claim and within this six months i had to file a claim against the state to ask them to try to act in accordance with mr wood's wishes to either give my client the my client's cause of action against mr ne up until that point she had no claim against mr me and once that act occurred then the probate act really has no significance from then on because it's a claim that has accrued to my client in the of two thousand and three and she has whatever time limits are set forth in the act for pursuing her play for malpractise case me i mean what exactly is the claim where did sure here's what happened he created a trust and had mr woods assigning what he thought was his property interest in the real estate to that trucks mr own that property individually in his own name at the time mr woods had already placed that property in another trust so all mr woods had to put in the living trust that mr yemi created in april two thousand and two was an assignment of his beneficial interest or they could restructure the trucks but mr me anyways conduct failed to determine that his property that the title holder of the property determine that mr woods was in fact the title holder or alternatively failed to accomplish mr was purpose of getting the property into that trust by whatever means was necessary based on the title documents that already exist she is a third party beneficiary of that trust of the agreement between missed me any and mr woods to put that property in trust for her benefit so you can see that she was not a con she was not the client that's point that it's it has to do with whatever whenever the death of a person creates the claim or right that if the claim has already been it's unique if the conduct of the lawyer is already protected by the stature of pows if it happened more than six years before the death of the person you get an additional six months to pursue it whether or not it's a will or trust or any other instrument the operative fact is not whether it's a will in probate but whether or not book but whether it is created by the death of the person i think that's what peterson stands for it and in finding that in that case the statute pose had lapsed so it was enhanced seeing the plaintiff's rights there in finding that the the sub the exception to the stature repos applied not only to matters in probate involving wills that were going to probate but also trusts and the crucial fact was whether or not the claim first arose as a result of the death of the person typically happens when somebody has designed a estate plan in an effort to avoid certain taxes or minimize taxes and in fact it doesn't do that so the state itself is damaged because it had to pay more taxes then it should have if the mortar had done his or her job properly and that is an action that the state can bring in its own mean the state was damaged as a representative of the client and it has an additional six months even if the stature of poe's even if the work was done it years ago it has in addition as the injury doesn't occur until the death because the disease can always change whatever was in that particular instance that's correct yes and that is one of the factors that the courts have looked at is that if if that's the that truly is caused by the death of the the client because up until that point the trust client discovered her claim only later i want to make very clear we're not making any argument on the discovery aspect of things it is not a question of whether the claim was discovered or not discovery relates to stash limitation stachel pose doesn't care whether you've discovered the claim or not it is a final bar except for this exception set forth in section d it was not that my client had not discovered her claim until it was rejected  that that applies that's absolutely not the case one final point counsel for mr yemi argues that our theory our interpretation would toll all claims until the deaths of the beneficiaries that's simply not so as justice is thomas questions and my answers just pointed out she doesn't get to go on forever with a claim against mr nguyen she did exactly what she should have done best correct but the point is the trust doesn't only give him give her the house he gives her the house or the house was sold the money so that the administrators entitle to give her the three hundred thousand dollars based on the fact that that's the written manifestation of the are we deciding both what the statute of limitations is and what that time frame is and also when the act was committed to trigger that a political statue of limitations or we just deciding the term of the statute of limitations well if i can just rephrase a little bit i'm not asking for determination stachel a patient of the first and primary point is i'm saying that this is an exception to the statute of repose which does not apply in the first instance because the statute reposed doesn't walk unless you can show first that the sasural pose applies section d is is a nonevent it's a non entity it doesn't mean anything in our in our claims now there is a second second prong to the appeal which is even if one were to assume for the moment that that exception is a in fact the only accrued after the estate rejected her claim in the estate because she was not damaged by mr ne ne until that happened but whether you call a statute of limitations or arguing that it is barred by property had been sold before the claim was made right and what if the scene had spent it in before he died and even though he didn't change anything in his will it would've existed but they've proceeds from the sale would have been in the tru and that's what he intended to have happen he intended that if she didn't get the house if the house was sold intended her to have three hundred thousand dollars which he had anticipated with the proceeds of hostile factors more that he he's he made a specific gift to her of the cash in the event the property would have been so you stated enough money and it's it's a constant pay this if he had there was there was no claim that they didn't have enough money to pay the gift should i just have to go into this language of peter's and one more time i started by asking you why it isn't as i think you said because in this particular case one and that's certainly the case with the trust like we have here regardless of whether the deceased client's assets are distributed by probate in or via his frozen or some other mechanism so let me put it this way if we disagree with your argument that the injury did not occur until point of claim against the estate was denied which is your argument and you brought that up last time i raised peterson if we disagree with that portion of your argument does peterson prevail is it just that the language specifically the language i just like i don't think that that's a complete reading of peterson because what peterson says is read are there but the point is peterson later says that it was that section d was intended created as an exception to the stature of repose and you'll recall in peterson the court was dealing with a set of facts that included the lapse of the stature repos that's what the defendant was arguing was that the stature repos applied and that the exception did not apply to the trust situation so  i think it's it's taking that statement out of context to say that it would apply even in cases where the stash repos has not lapse because that that would contradict the later that was my prepared remarks peterson case answers the questions in this case this court's decision in peterson talked about the loan inquiry a loan inquiry that has to be asked in a context like this and i'll get to that loan inquiry and the answer to that loan inquiry but it's extremely important to understand that although the peterson case did involve facts where the six years statute of repose had passed it is the only case interpret ng this statute where the six year period of repose had passed every other case that is published that involves this subsection d involved facts with a six year period of repose had not yet as the pool of court noted in the first district this statute subsection d is used both to expand and to shorten the limitations period now i want to talk a little bit about the actual breakdown of our limitations act for attorneys it is my privilege to argue before you for the first time myself last time i was heroes co counsel on the diluent case and in the ed opinion there's a terrific phrase used literal laxity and that was a reference to how we describe limitations periods whether there are statutes of limitation or statutes of repose this statute has a combination of statutes of limitation or limitation periods and statutes of repose subsection be very clearly is a discovery based statute of limitations two years from the date that the plaintiff knows or reasonably should know of an injury and knows that that injury was wrongfully caused by an act or omission of an attorney very clear subsection c is a period of popes it starts at a finite time and a finite time or as the time frame under subsection b the statute of limitations is a sliding scale of two years can be different for every single case under subsection c the six year period is always the same starting on the first day after the lawyer last does work on the matter start the clock six years later clock expires all claims are are that subsection  stature of repose can consume a cause of action before it even a cruise before it even exists before the plaintiff knows that plaintiff has a claim under subsection b it can also shorten the time frame of the subsection b claim now both subsection b and subsection see start the exact same way they start off with two words and action over them subsection d is different subsection d doesn't start off with an action subsection d is a separate animal that applies to a certain type of claims it's a certain type of injury and that is an injury that occurs only after the death of the person for whom professional services were rendered i've argued this issue before and i usually modify some of the language a little bit for purposes of an argument i want to stay as strictly as possible with the statute but i changed that wording to say it's after the person for whom legal services were rounder instead of professional services since we're always talking about wires here in this case the first work that not my client did was in one thousand nine hundred eighty three that was writing the trust had the amendment to this trust not been done in two thousand and two the six year statute of repose would have been in effect by rewriting the trust in april of two thousand and two this issue comes up and that's why we're here i'd like to backtrack for a moment and answer question the u s justice thomas about the true year statute i made a mistake in my brief but i need to correct and that is i compared this case to pool and i said that like cool it this claim was brought within two years of the death of the client that's true and cool that it's not true in this case mr woods died in august a few thousand to the exact date is not in our record this complaint was filed december twenty seventh two thousand and four so it was filed more than two years late that's important because if we look at subsection d plaintiff within two months of the death of mr wood's assuming for the sake of the argument that mr wood's died on the last day of august of two thousand and two on the thirty first then within two months miss wacko was to receive a convey of that real property so by october thirty first of two thousand and two that didn't happen she knew it didn't happen she was injured at that time she had suffered an injury for which she could seek damages so in fact if ar thirty first of two thousand and two the council wouldn't that argument or to make that that view were that property would have to be within the confines of the property of that trust at the time this minute number two was made  was seventeen of two thousand and two i think that's true to the extent that if you want to take it out of subsection d and put it into subsection b yes you have to do that whether it's a b claim or d claim she still suffered her injury and injury is the same under b c and so if it's an accrual analysis it accrued when she didn't receive the property that she was supposed to receive well now that the trial court dismissed this  what you call the statute of limitations or not it was barred right for time reasons correct correct so do we then take as true for purposes of this appellate review that there was mel practice in that what the malpracti a legal conclusion not all homicides are murders not all mistakes by lawyers are legal malpractise means you have the benefit of this time bar you have to put it in the category of legal now we do and that's why i soon these facts including the amendment to the trust of those states believe that subsection d is what applies to this quiet again going to what justice thomas pointed out in the peterson decision the portion of the language that justice thomas read is critical to the analysis here because what the court s wrote in a bad and cold and i apologize the language of section thirteen dash two fourteen point three d unambiguous li supports its application to all cases when the alleged injury caused by the attorneys act or omission does not occur until the death of the person for whom the professional services were rendered in plaintiff's a minute complaint she concedes that the injury occurred after the death of mr wood's therefore  subsection d applies but continue with that language from peterson this court said there is no language limiting such actions to those that involve assets distributed through probate proceedings or excluding actions that involve non probate distributions of assets therefore under the statute a plaintiff has two years to file a claim unless letters of office or issue or the  while the statute does not have any language expressly conditioning the application of subsection d on how the assets pass it also has no language expressly or imply italy conditioning its application on the of section b or section c or on the applicability of either of those two subsections so it is not necessary by the terms of the statute self that the proposed period of subsection c have expired in order for  subsection d to apply that's the implication or that's the portion of the statute that i think plaintiff would have the court read in it's just not there and so that that is why i believe that language that your honor cited is so critical  said in peterson that the lone inquiry made by a trial court when determining whether section thirteen dash to fourteen point three sub d d is applicable is simply whether the injury caused by the male practice occurred upon the death of the person for whom legal services were round that's the one in court and that is something that is conceded by the plaintiff in her complaint now there have been several formulations of the timing of the the death and the injury injury is equivalent to damages is used in the statute so when the plaintiff has damages there this point of suffer damages when she didn't get what the trust amendment said she was supposed to get an october of two thousand  ensuring the threshold in pretty though of when this injury occurred takes us to one did mr woods die and did this injury occur before or after he died is there any difference between having subsection  the statute says until the palmers case says until after and this court set upon in the peterson case i think all of them mean the same thing and what they mean is not before if it doesn't happen before statute itself and until fits but in context upon is perfectly correct in the way the sport wrote it in peterson so i think they're all equivalence but what they really mean is if it didn't happen before the death of the client it's a subsection d y and i think that's what we're faced with here in the alternative if it isn't a subsection declaimed i do believe that under subsection me the plaintiff's cause of action accru point and thank you for your attention the significance of the language that justice thomas quoted from the peterson opinion in saying that in its use of the word all cases upon the death of the client in the context of the peterson case it was saying not only probably cases but non probate cases the peterson case was dealing with a situation in which the statute  had lapsed and i think that that context combined with just a still bride's comments at the end of the opinion in which it is stated that section b is simply intended as an exception to the statue repos is a clear statement that the statute of repose has to be invoked first before you look at subsection b subsection c which is