has an element of injury wrongful causation and the possibility of extension by reasonable efforts to determine the cause the public accounting standard is somewhat different that limitation says someone different than others because the focus here is on acts or omissions because the an action based on tort which is this is it's a sta utory toward illinois has recognized that accountants may be held civil be liable for damages under certain circumstances and then there's a particular accountancy act that allows that to happen and then action based upon that tort for an actor omission in the performance of professional services shall be commenced within two years from the time the person bringing the action knew or should reasonably have known of such actor or mission and the bank if your county bank has a debtor r t a and its principles that are asking for an extension of credit vishal extension credit and the bank receives an amended two thousand and nine past return that it relies upon for that extension of credit that's in october of two thousand and nine i was sorry two thousand and ten and in january two thousand and eleven things fall apart so one of the principals is killed or commit suicide of accountants are brought in by the other principals in the f the accountants report to the principals and to represent the bank comrie that there have been some underhanded dealings going on the been going on for years and that even false tax returns  been filed the the bank begins its proceedings against the debtor the represent the remaining representatives of the debtor who go into bankruptcy the bank in bankruptcy attempts to obtain all of the tax returns from the debtor they are not successful the banks submit a subpoena to the accountants the accountants respond and say you can come to our office the bank's attorney goes to the office in january  return if they received in consideration for the additional loan they did receive that in an amended return and that had the signature and i don't know how mr don't walk right ok all right that's  right but it wasn't until january seventh of two thousand and thirteen that the bank through its attorney actually received a copy of the first return the two thousand and nine return and so until that time the bank would have had no knowledge whatsoever of the accountants knowledge of the gross change within thirty days because this is a return that have been prepared i think that september fourteenth a few thousand can whereas the second return is october eighth two thousand and ten and so we're talking in a period of less than a month unbelievable change in the financial status of this of this organization but you know at that meeting and that this is based on sound sample data at that meeting accountant doesn't say and by the way i knew this i knew this because i prepared in two thousand i returned oh my god you wouldn't believe the difference within thirty days there's nothing in the record to infer that that sort of thing happened as a matter of fact if you look closely at the affidavits he doesn't contest those affidavits don't contest the bank's attorney's affidavit which is to the effect the first time i saw their return unfortunately accounts receive all kinds of information from clients and i suppose they have to expose they have to accept it based on the representation accounts often puts claimers on the financial network if they do that it's based on the information that the clients should have reasonably known we were not talking about when you definitively know you've been wrong we're talking about when you should have suspicions and start checking into hey what's going on here actually not because the bank is being  wold into this very secure feeling that the account is being completely forthcoming we're working with you to try to help you solve this problem will even give you really affidavit in the bankruptcy proceedings that believe it is the first time that the two thousand nine original return is mention and it doesn't say the state and it doesn't say what the accountants reaction is we have no idea what was going on at the accounting office mr nobody could have just been the singer and two other staff members could have heard those returns and there was two trains passing in the night they just haven't we just don't know because the record doesn't tell us but i don't judge foley's ruling if you read the order that this misses it makes these findings of fact and it stops in february of two thousand and eleven and completely ignores the bank's attorney's affidavit as if it didn't exist i don't think for purposes of a motion for dismiss that you get to do that i don't think you foley in a well intentioned way applied but we would call the common law discovery rule injury wrongful causation and what should they have know but that's not what she was tasked to do she was tasked to follow the case we want to follow those cases if there's good but i think that's a good sound reasoning in this case those two federal cases that are cited were common law fraud cases private under diversity and then the and frankly i think they're wrong but that doesn't make any difference i don't think you have to give them any consideration of them well that's nice that that's their our job is to interpret the statute and unless you know something i don't act or omission of the account it's interesting compare to fourteen point two with two fourteen point three which is us which is just lawyers when we get sued right and the language of two thirteen point three times is there a question about whether or not the bank was reasonably diligent you bet you bet but that's a factual question and that should go with the case that should go with the case you should rule as a matter of a matter of was under the circumstances of this case that there's no possible way that the bank didn't know until within the statute of limitations so we were there so that you reversed good foley's rul plaintiff's arguments are twofold one is based on a fact issue one is based on an interpretation of the statute to clarify some of the facts that were just discussed at the court of focus on those first and i'll move on to the stat proposed by the other side the fact issue there is no disputed question of fact in this case plaintiff's counsel is pointing to an affidavit that was filed by mr ancyl i believe the court can find at page c eighty one of the record where mr ancyl who is plaintiff's counsel at the trial court level discussed not receiving copies of this particular tax return pursuant to a subpoena that was issued in the late twentieth levin and purportedly the documents were not included in a production that was given in two thousand and twelve in fact plaintiff's counsel had already had the opportunity to investigate and review those files at the accounting defendant's offices that's undisputed the affidavit that describes that interaction is that p h c fifty six of the record one of the associates from plaintiff's counsel's office went viewed all of the tax and accounting files that the accounting defendants had they were given the opportunity to copy any of files would include anything that would potentially be subject to attorney client privilege similarly but in the context of accounting malpractise the complaint here or the dispute i should say concerns the actual tax return there is nothing that suggests that the actual tax return would not have been included in those records certainly it was not privileged it's not subject to that privilege it was filed and there is no suggestion from the plaintiffs that the those documents weren't included in the  only time that has come up is during the appeal where the plaintiff's counsel suggested well we can't prove that those documents were in those files so let me make sure i'm understanding you clearly are you disagreeing with the representation of copy of that document you didn't hand one to us until sometime in two thousand and twelve twenty thirteen that's the distinction is whether they had access versus whether they were actually handed a copy silvie answer to my question you  disputing that but what you're saying is they had access to they had asked who received it at that time exactly that's exactly right because that reason to the question of what occurred that should have led them to ask we've had the opportunity to look at the books the books are not in order there's an issue the book keeper for rhodes has informed us that the book's one not accurate that she was instructed to keep accurate records it wasn't a situation where the bank called in the  countenance it was a situation where the accountants went to the bank and said we have a problem the bank had the opportunity to review that information and proceeded to file a lawsuit against one of the principals who  eventually filed for bankruptcy protection but the bank intervened in the bankruptcy action as one would expect that's when the bank was investigating the scope and extent of the fraud that was involved in this case through that adversary proceeding in the bankruptcy court the bank was given access to all of the accounting defendants files and the accounting defendants never took issue with that they actively assisted in this investigation and now instead of acknowledging that the accounting defendants actively assisted in that investigation the bank has decided to wait wait until the accounting malpractise the accounting defendants eventually responded to additional subpoenas in the under serry proceeding and the bank is now using that information to say well how could we possibly know that the accounting malpractise defendants had any of this information they knew because they knew there was fraud involved they knew the scope of the fraud and they had access to the documents and that leads directly to the precedent that is on point in this case that's the denker case from the first district i believe the court has the citation if the court doesn't it's two eighty eight elaph third six six six and they're the first district telt with a very very similar situation there was alleged fraud involved from one of the principals one of the minority shareholders of company the company in this eventually investigated that there was a rico action filed against the minority shareholder and yet the principal shareholder in that case waited for several years before it brought any sort of an action against the accountants involved in that case alleging the accountants were involved in some sort of fraud the first district made very clear based on the language of the statute of limitations in section thirteen desh to fourteen point two it was too late it makes absolutely no difference when the plaintiff learns of the alleged fraud of the accountant or the alleged malpractise of the accountant what matters is the standard interpretation of the discovery rule which is when did the pla that the plaintiff was injured and when should the plaintiff have known or reasonably known all of the injury that the injury was wrongfully caused that happened when the plaintiff in this case when the bank learned of the fraud and learned of the scope of the fraud at that point the bank was on notice to investigate exactly what had happened in the underlying documentation and the bank was given all of that documentation this is not a case where the bank was kept away from it where somehow the bank it was hidden from the bank and in fact if the if the court looks at the danker case that is more analogous to the behavior that the bank contends the accounting malpractise defendants took in this case in tanker the accountants did not turn documents over to the plaintiff the plaintiff obtained those documents through the rico action from the state's attorney that was involved not from the accounting defendants here or the accounting defendants actively assisted the bank in the prosecution of that adversary proceeding in opening its books to the bank and in working with the bank to recover some of those proceeds again in the bankruptcy adversary proceeding but again the fundamental point for this court concern statutory interpretation and contrary i disagree unfortunately with what life was and counsel has said this is an issue that has directly been addressed not by danker came down in one thousand nine hundred six there's no question that the interpretation of the discovery rule in the context of accounting malpractise cases is interpreted exactly the same way as any other interpretation of the discovery rule when did the injury occur and when was the plaintiff on notice knew or reasonably should have known of the act or omission at issue not when did the plaintiff learn of the alleged malpractise of a specific act or i hate to read extensively to the court but i think that the language that the supreme court used in nolan is so fundamentally on point with the necessary interpretation here i asked the court's indulgence to read it this is from nolan eighty five il second one sixty one this is it pages one seventy two one seventy one we wish to emphasize that the rule we announce his not the same as a rule which states that a cause of action accru when a person knows or should know all of the injury and to the defendant's negligent conduct not only is such a standard beyond the comprehension of the ordinary lay person to recognize but it assumes a conclusion which must properly await legal determination moreover if knowledge of negligent conduct were the standard a party could wait to bring an action far beyond a reasonable time when sufficient notice has been received of a possible invasion of one this case is that the accounting defendant actually sent a letter to the bank to the banks representative in february twentieth eleven that specifically said in the accounting defendant's review of the documents almost all speaks speaks to the broader group right it certainly does but it brushes all of these financial documents it is certainly not limited just to a certain segment of documents it is intended to advise the bank there is rampant fraud here and at that point the bank had an obligation to investigate the scope of that alleged fraud and the disks the circuit court speaking in this case made very clear even if even if that weren't enough and that should be enough when the bank had the opportunity to review all of the files in this case all of the accounting files which everyone agrees the bank had the opportunity to do by going to the defendant's offices by reviewing those folks they still did not bring forward any sort of an action against the accounting defendants for more than three years it was too late at that point there's no question of fact here there is nothing that should have precluded the circuit court's ruling the circuit court reached the correct result a result that has been reached in the same procedural posture by sister districts of this court that ruling should be affirmed if the judges have no further questions i don't see so you don't have to do that but you need to do is know or should know that the accountant actually did something wrong that would provide for liability under the accountancy statute that's what we say apply the statute counts on i'm sorry to talk about fudging about the record we didn't get to see all of their files we got to see what he described that was ignored that was a disputed fact for which we urge let's follow this statute this is not the common law discovery all this is a statute of the state of illinois that deals with words fit right into what we had ruled on before