good morning today thursday may sixteenth two thousand and thirteen our first case on the call the docket is agenda number four case number one one four two seven one evanston injury action a coverage dispute arose between kieffer bounds various insurers including appellee evanston insurance company resulting in the filing of a declaratory judgment action regarding coverage on october twenty three two thousand and thirteen years ago an agreement known as the funding fight agreement was executed by the various insurers and jacobsen writes borrow on behalf of kiefer baum as their counsel pursuant to that agreement the injury result of keeper bounce position evanson filed this action against the jacobson who writes for defendants asserting claims for breach of implied warranty of authority fraudulent misrepresentation and negligent misrepresentation and dismissed the claims without prejudice evanston vent continued to prosecute its coverage claims in a declaratory judgment action finally in in december two thousand and nine evanston finally lost all of its claims against kiefer about after it lost its claims against kiefer baum three weeks later evanston filed a second invented complaint in this action against you collins repeating the very same claims that it had raised before based upon the alleged unauthorized execution of the funding fight agreement back in october of two thousand we moved again to dismiss this time on the grounds of the six year statute of repose governing claims against attorneys barred evidence claims based upon the acts of the day and on the jacobson writes for defendants back in nine years earlier back in two thousand colgrove two thousand circuit court agreed with us and dismissed the second man a complaint with prejudice this time based upon the expiration of the statue of repose evanston appealed it argued principally that the statute proposed governing attorneys did not apply to did because evanston was not a client of the appellant's on november eleventh two thousand and eleven pursuant to a rule twenty three water the appellate court reversed holding that the statute of repose here quote contemplates an attorney client relationship and is not applicable to a suit by a non client against an attorney in the performance of professional services and the central issue in this appeal thus involves the history specifically the statute repose here which is found at section thirty two one four point three b n c of feeling like it's the procedure provides an relevant part very simply that an action for damages based on tort contract or language and unambiguous language of the statute propose it applies to all claims arising out of an act or omission in the by an attorney in the performance of his or her professional services on appeal however the appellate court failed to apply this plain language instead it's rule twenty three audit reversed the circuit court and held that the statute only applies to claims by clients for legal malpractise to limitations being added to the statute but as they can only apply to clients claims by clients and claims by clients that are for malpractise we respectfully submit that nothing in the statutory language or which of legislative history supports these limitations nowhere does the statute expressly state that it only applies to two clients for claims for legal malpracti in fact the word client and legal malpractise do not even appear anywhere in the statute if the legislature wanted to limit these limitations imposed upon the application of the statute propose upon th being rendered they must be professional services if in fact the plaintiff is a client is that a factor that would might lead one to conclude one way or another whether or not it's professional services sure but we don't we find it not be professional services so a lawyer like myself might go and file a lien on behalf of a client a non client b might find that offensive find something wrong about what i just did and s but is it not for her professional services that i just read it for my client when i put a lien on the title of the house so there is it's a limitation it's a limitation which is characterized by the nature of the act the act or mission before it was one taken in the performance of professional services by the by the attorney here there's no dispute that the jury jacobson rice co defendants were acting in their capacity as in their professional capacity as attorneys when they executed the funding fight agreement evanston alleges that they were attorneys evanston alleges that they were defense counsel for key found in the interaction and evanston fact alleges that the executed the funding fight as this court has repeatedly held with the statute the statutory language is clear as here effects should be given to the statutes of plain language in belfield vs coupe and other cases courts are simply not permitted to rewrite statutes by reading exceptions limitations or conditions into it that the legislature did not express and we've said that in your that's what it said that in heinrich versus liberty high school as well as craft verses are in fact to the statutory language at issue here as here the plaintiff contended that the statutes use of the phrase in the performance of professional services indicates that it only applied to professional malpractise claims the first district is to preach stating quote we can discern nothing in the language of the statute which even hints at such a limitation rather by its plain words the statute applies to actions based on tort contract or otherwise arising from access conditions in the performance of professional services very close to the language we have here this court went on this is broad language if the legislature had intended to limit the applicability of the statute to professional malpractise actions it could have simply said that he did not do so to hospitals contribution to the hospice contributions by when he could have simply said if the if evidence position was to be done it was a law that is only applied that it would only apply to direct actions by patients it did not do so and brought  contribution claim in peterson vs while this court made clear that applying the very statute addition to the courts i quote not at liberty to depart from the plain language and meaning of the statute by reading into it decision it called can't gansey versus blog felt that from the fourth district in one thousand nine hundred decision and they claim that quote gnc held that section thirteen dash two one four point three is limited to legal malpractise actions whether nine clients are clients going to search the statue or pose specifically the cancer court found that the statute proposed did not apply because the third party complaint against the attorney did not sit well it did not support the failure of the attorney us was that from the services that were being challenged were not professional services and therefore the statute of repose does not apply in any event yes he never expressed any holds as evanston states that the statute proposed is limited to claims by clients for legal malpractise or that the statute of repose could not apply to claims by one client it's it's not in that opinion as for the three federal district court cases cited by evanston the cotton case the trial court decisions ignored the plain broad language of the statute indeed the district court and houghton even went so far as to assert that the statute quote specifies that there must exist a professional relationship with doing intentional misconduct in entering the plaited these things cannot be fairly characterize as professional services where over the interpretation in evanston asks that this court dot limiting the application of statute or propose to only claims by clients for legal malpractise we believe will have a significant adverse impact on public policy under evanston interpretation a non client will have five years in the discovery of a claim to sue and attorney so he discovers that there's something wrong with his house insurance fifteen years from now he's going to have twenty years from the closing to bring that su is essentially a non client would have an unlimited limitations period with no riposte period cutting off the or extinguishing the claim while the attorney's own client would have only two year a two year limitations period and a six year stature of repose which would extinguish a claim after six years in the act or current us moreover if claims by nine clients are excluded from the statute of repose attorneys particularly retiring attorneys who are looking out how long they should get insurance for will be subject to the possibility of such claims that any certainty that they'll be a dead definitive date in the future when they can know when they know they were can no longer be sued getting a six year tail coverage from an insurance company will not do it for you if a non client sues you and says we didn't discover it until year seven to your fifteen year twenty and we have five years  we we submitted the uniform application of the statute of limitations and repose periods to clients and non clients alike would help avoid the possibility of such stale claims by non clients although evidence suggests that these are rare phantom concerns that we're raising there's an extensive body of cases dealing with issues arising from claims by nine points against attorneys and i think that extensive body of cases lies the argument just by just by statute of repose involved no statue limitations that is the same as the that that applied to clients those things will be able to be asserted well into the future evanson tries to argue that because it initially filed this action within six years the execution the fun to fight agreement because it's complaints were dismissed without prejudice that they on the ground that they were premature it is it's not now barred by the statute repos as its case insufficient claim you will get this mess if in fact if it turns out that the underlying claim is not cited until after statue of repose expires will argue that it relates back or that you remain pending what should have been stayed all of the different things that they want they want to do to try to save the claim sexual post doesn't work that way statute post extinguishes the claim if it hasn't accrued yet you get dismissed for prematurity if you an alleged damage you get dismissed because you haven't stated cause of action and if it turns out you're damaged after the statue repos expires that's the way it works statue repos extinguishes the claim it's a legislative determination that after certain point in time you will not be able to bring taking the position that deploys did not have authority we submit that they accrue argument missed the point all its claims for damages against that the defendants here were dismissed because they did not and could not allege a legally cognizable injury until such time as evanston lost its claims against b p for about whether they proved or not they still needed to have an injury in order to sue for damages which is what they're suing for so they were dismissed because one of the elements of their own claim did and reading the briefs last night i think one point one one very strong obvious point was not made in any of the briefs and in i invite the court to look at page c ninety seven of the brief where george riseborough signs the fund representation this is an active representation of fact which was incorrect and mr riseborough in his much admitted that in his deposition and we said to that record so then the question becomes is there a public route policy reason to protect him under the attorney client statute of limitations and i say there is not and and probably the primary reason there shouldn't be an excuse me m merkley do we before we can get the public policy right we have to look at plain language around is there anything in the plain language we're talking about be accurate mission in the performance of professional services that's the operative clause very well is is is signing a document in which you have no authority and representing that you have authority to a third party first district and three by federal district courts that all say professional services require a duty a duty to a client is it an oversimplification to say that your position is that that clause refers to you look at who was receiving the attorney's professional services when the injury occurred and opposing counsel's position as was the attorney performing professional services when the injury line i mean word it would you say you know there's cases out there that say that there are certain things that a lawyer doesn't behalf of his i mean we can come up with lawyers are being sued by their opponents more often now than before one of the one example is in a defamation case there's a there's a there's been a a trend to file defamation cases against your opponents lawyer now that's a one year statute should should that should that step should be expanded to two years i mean what did i when there's there's malicious prosecution cases there's intentional interference cases where do you draw the line where does the lawyer cross the line where it's not professional services anymore i mean you can you can take that professional services idea broadly and and any time it has anything tangentially to do with a client then that statute applies huddy how do you address those in counsel's argument that the legislature could have easily put in on behalf of their client and chose not to do so well i think he i think he he ok he talks about polls and that's the only decision that interpreted tirpitz it that way and they distinguish the legislative intent but you know polsky i don't think is relevant because it's a certified public accountant and there are a number of cases in illinois and other states where a third party can sue a public accountant a public count has duties that go beyond his client you know it's not necessarily an adversarial relationship here we have an adversarial relationship and and you know i think  reasonable interpretation is of of the language against an attorney arising out of an act or a mission in the performance of professional services means professional services to a client because that's where the perfect i mean riseborough did not provide professional services to evanston insurance company ok granted it he was in the process of writing those to his client but this is a cause of action by evanston against him so that so that the action doesn't arise out of an actor a mission in the performance of professional services it arises out of an act or a mission being in the act of being intentional misrepresentation to evanston or attorneys and signing the document you know if their client were suing them for saying there's they had no authority to do that would that be professional services under the air i believe so duty could be and could not so then the focus is the focus on whether it's a client relationship i think the i think the focus is on the client relationship and i think the focus is who on who's making the claim and who and in which direction is the producer of duties run i mean i mean that's what there's five different courts now i mean there's three fourth district judges three first district judges and three pointed out it's a different a whole different type of professional with different duties a certified public accountant has certain duties for the public in general when it issues reports and audits and and financial statements that  that don't apply and it's i think it's a question of duty i think that's the issue you have a duty to your client and and and this statue of limitations is intended to to apply to that  and i think has to do with malpractise actions but you know as this court knows you don't go to legislative history unless there's an ambiguity in the statute here and here the courts have that the courts that i've just mentioned have said there's no ambiguity here it applies to professional services and they said that in determining what felt proper professional services are looked to duty one who where does that lawyers duty were they run runs for a client it's a question your opponent was negligent in nature probably if it was an intentional tort probably not but you're asking me for an opinion that i haven't really researched but i think i think they probably would but that's a different contract you know the and every policy is different you know i think they could they cover for example the definition place claims i'm talking about but they do so on your reservation your position  you don't see any reading into the statute whatsoever if plain language is the first thing this court has to look at right with respect to interpret just as just the words act or omission and performance of professional services without thinking about public policy without knowing anything about whether or not there is coverage no one coverage that the whole legal landscape those works do we not have to read into those words that it only is between a lawyer and his client well you don't you don't dispute that that they were performing a legal act of sorts for your city it's the who that you have the problem with who were they doing it for so i'm just trying to focus in on the line ok well again it's a rising out of an act or a mission in the performance of legal services ok and the claim that arising out of that act here is a representation to a third party so with respect to evanston insurance company it is not the performance of legal services that's that's that's where i draw the line and and i think justice so long simply when he says a plaintiff cannot bring suit against an attorney in the performance of their professional and certain services unless there was an attorney client relationship in which the defendant owed a duty to the complaining party i mean i think that's professional has traditionally duty in the in the execution of its services but not to evanston not to this point it's an interesting question  justice freeman on it and a case i think that judge war wilson had in the trial level jolan dan i think it's very important to read that case and this goes to the issue of whether or not the cause of action against the agent is right ok and  happened in joel and dan is that the the lawsuit proceeded against both the principal and the agent now if appellant was correct that could happen you'd have to sue the principal first but that's not the law there's no case that says in a case where we are questioning the authority of an agent that you have to sue the principal first and lose that case when we file the lawsuit in at the very beginning of the case we said that he he signed that without authority because he for obama told us that and that cause of action is right at that point did we suffer damages of course we did we settled the case for six hundred thousand and statewide who was the other under the funding fight agreement went bankrupt we lost that six hundred thousand dollars we lost we had damages there's no question about that now you're probably asking why weren't these tried together we tried to put them together if you look at the record we moved to consolidate the presiding judge of the law that we file these things in a rush the presiding judge of the lot of vision transferred to chance but didn't consolidate the cases they were before judge pillock kieffer mom was already a party to the coverage action so judge billick had the coverage action and we first had to get the ruling on coverage before we c determine whether or not we had the cause of action against key from so now we're now in chancery and the apple around here took a change so since it was a money damage case it goes back to a lot not consolidated now even though we tried it was assigned a judge goldberg again we filed a motion to consolidate you know that these two claims should be tried together there are alternative claims not mean that the claim against the agent was not right we could have sued the agent only we didn't have to sue the principal if that would have been an issue if the agent had a problem with that they could have third party doing the principle there's no obligation to sue the principal first they can't cite one case what they're doing is they're using legal malpractise cases as an analogy and legal malpractise cases the underlying case has to get resolved before you can sue the lawyer because there's no them and they're trying to use that as an analogy to say that the case wasn't right here but that's not the law now and on so even if you find that the statute should be applied as as the appellant thin trial court committed to err by dismissing the case from the get go and then when he when the trial court thought it was right years later applying the stature to repulse that case continued i mean he can the trial court continued to dismiss the case without prejudice he and one of the orders i think it was in two thousand and eight the trial court said you can come back and amend once the underlying case is resolved it's in the order if it's the jurisdiction that whole time if the case is right when we filed it there's no reason this to apply the stature repos because it was filed within the six year period now there's a couple footnotes that talk about the statue of limitations to your staff from the patients but that wasn't litigated that was never litigated so in any event the the trial court should be reversed we think that it should be reversed and that the statue of patients for read that case and see how often i mean there's four sites for four or five different principal one agent cases regarding authority and they and in each case the agent was stopped was sued at the same time as the principal and i things that was raised were some of the questions and some things that were raised by mr marconi with regard to what stachel mutations would apply any he says this basically opens the door to and you don't know where it's going to stop and the limitations dismissal i believe against these vary by the client her family against these attorneys interesting point to be brought to be drawn from that is that in that case the very statute at issue was applied the court did agree as it's obviously agreed here that these were professional services the renders that you reference eight sevent statute says in that case suggest very strongly that the court recognized that our acts were professional services so therefore triggered  i notice a note that whole ski may reference to legislative history that was being cited by one of the parties and basically said even read most favorable to the plaintiff's position the legislative history doesn't support the limitations that the plaintiff was asking for and you'll see that in the post opinion as far as joe and dan is concerned that in that case there was an actual injury by the insured they had lost they had lost their building t a fire and it was already injured so it was its claims against anybody connected with that were right and also the teaching that i think can be drawn from there joe and dan is that you can't sue two people dismissal that was dismissed without prejudice even if we are gree with your position i think somehow it is somewhat of a relating back erg you meant that it was filed within the six years that as i understood the argument that  the judge was wrong on and the whole rightness issue they found it within the six years it was dismissed they retain jurisdiction in refiled i think the argument was made that even if we agree with your position that we should somehow related back of it compl first of all on the whether it relates back to the court dismissed the earlier complaints because it did not allege all the elements necessary for a legally sufficient claim one of the elements being damages injury because these were claims for damages and he says there's no damages here until you lose against people about so the reason for the reason for its dismissal was that the complaint was legally insufficient and thus premature until such time as loses you cannot relate back and i think the cases are clear you can't relate back to a case that doesn't exist it was dismissed yes it was dismissed without prejudice so that if in fact there was damages incurred at some point during the period before this that you propose expires you could you could then you can then amend and say i'm here and i've got a damage i'm ready to pursue a legally sufficient claim but that didn't happen second if what they're saying were to be applied a plaintiff could file a case the day's lawyer tells them let's take the lucy case i'm not sure which i'm familiar with it but lucy a broker received advice of a stockbroker received advice from a lawyer that he could leak he did have to pay attention to his restrictive covenants to go compete against his former employer to get sued by the former employer when he leaves he then seeks to sue his lawyer but hasn't lost yet against against his own former employer who sued him but the court basically  says we do not approve of placeholder provisional actions being filed so that you can then later argue it relates back where it was dismissed without prejudice if the statute propose ultimately expires so what their argument would encourage is full it would courage lawyers to file legally insufficient claims because there's no you there's no injury yet and if the injury occurs after statute of repose come back of yours premised on this being a legal malpractise or a professional services act that was done or is that in every area i would think that would be true in any case but you wouldn't you shouldn't be able to sue somebody that you know you don't have a claim against yet just so you can say later say you were timely