transferring a piece of property a residential piece of property into joint tenancy between wilbert and judith schneider mr snyder passed away in december of zero seven and it was subsequently learned they had in fact no interest had transferred to judith back in one nine hundred ninety seven because wilbur did not have sole title or any interest in title it was held in a land trust of which he was the beneficiary was his daughter stephen i think the case comes down to what do you need for a legal malpractise case to court is well aware we need the duty we need the breach of the duty and we need actual damages in injury not the last injury not all of the injuries but an injury and it's our contention that they had injury occurred allegedly to judyth at the time when she thought she prepared going on to be intellectually honest in this case we must acknowledge that an injury occurred at the time of the drafting the quick claim d and even in the briefs filed with this court at page four  that and that's another of arguments that intent is being conclusory concludes orally stated it's simply stated wilbert had an intent to transfer and judyth haven't had an intent to receive unfortunately those are conclusions there is well the requests the legal services requested were to draft a deed to place the property in question into joint tenancy in fact that was done and that is the evidence of what was done whether there was an intent to go beyond that whether there was this or at least the attorney has the right to rely on a client who comes and says i own this property and i want to placed into joint tenancy with my newly married spouse and in fact that's the only evidence we have is that was requested and that was done i think  judge popejoy at the time he ruled in favor of a motion to dismiss said we have no other evidence of what the intent was it could well have been wilbert said listen i just want to keep her quiet put draft a deed in joint tenancy and put her name on it there's simply nothing other than the fact that the client requested a quit claim in joint tenancy and that's what was done is urgent yes we have a little bit of everything here from the appellate court don't always do right so we have you know justice mclaren that would wait till after the death right basically well he took two positions because at one point he said there could have been two and ultimately the majority opinion was at the time of death is when the injury occurred and the   is wrong with the male because again going with justice o'malley the second part of the injury if you will stand out of a rose out of the first injury the first and primary injury is judyth never received an interest in the property that is the core out of which any subsequent injury or damage flowed and the case law is not they have the legal malpractise case does not begin to run until all the injuries have occurred but only at such point as the client knows reasonably could have known or should have known or in the case of statute of repose six years from the date of the alleged negligence which in this case and arguably is the drafting of the quick claim and that was in the case law that we cited which indicates specifically just the in currents of attorney's fees in order to remedy the alleged negligence underlying negligence they have can start the running of the statute in no one argues i don't even think judith takes the position here that she failed to suffer an injury at the time she thought she was getting a half interest in the property and in fact got nothing you know arguably that's the start i think the question becomes at what point then does the legal malpractise statute begin to run and our position is the case law indicates that as soon as there is actual injury or damage they x enough for the statute in this case the statute of repose begin to run and i know the second district cited the weatherill case we believe that that is significantly different from the case here that was a living trust and the court focused this court focused on the fact well the error could be corrected any time which of course in case of a living trust it could the air in this case was the drafting of a quick claim deed to hold that nothing starts to run until wilbur it's that would basically put into question a statue of limitations as to any real estate transaction because arguably any time a grant or of real estate continues to live the argument would be the legal malpractise case if there was no practice does not begin to run because he could be corrected it in time whereas a living trust certainly the person who retains the right to change the terms of the trust that in fact can be changed at any point in time that's the right of the individual but when you transfer real estate or an interest in real estate the grant or does not get to go back and automatically and on his own change the act if you truly have transferred a half interest in the property they at half interest would have them belong to judith so it's different than saying it could have been corrected the error could have been corrected it anytime again to hold otherwise we're to state that a legal malpractise case is always premature in a real estate transaction as land as long as the person granting an interest continues to live in that scenario a grantee may never have the benefit of a legal malpractise case if they pretty to cease the grant or and i don't think that's what this court or the law intends cases cited by the plaintiff including for example the peterson case peterson specifically and express lee stated that it was not addressing a situation where a real estate attorney negligently fails to place real property in that case into a tendency in the entirety so those cases are specifically excluding reference to the type of situation we're dealing with here justice thomas referred to the dilemma that we've been placed in by the three opinions from the second district we don't have clear guidance of exactly when does the sea actually begin to run the majority opinion which i disagree and gree with justice o'malley that probably isn't the majority opinion is that everything waits until we're talk versus justice so manly who yes i do agree with and he said it starts to run at the time of the injury at the time of the drafting of the deed and that the injuries that flowed from that do not change the statute and then of course justice jorgensen who took kind of a middle of the road approach but still doesn't give us much guidance in fires when you have a real estate transaction when does the it's actually begin to run and the whole purpose of the session of repose is to put some limit and yes there are cases and this may well be one of them where judith did not have noticed could not have had notice about the presence of a legal malpractise case but in fact that's the purpose behind the statute of repose and with all due respect with us that the trial court's dismissal of this case be good morning your honors me please the court my name is timothy kline and i have had the privilege of representing judith snyder from the date that she walked into my office in january of two thousand and eight with notice that she was going to be a victim from the marital home that she opinion by this court in two thousand and eight which holds i think entirely consistent with peterson versus wallach in recognizes the real basis for my client's relief here which is the statute in question which is paragraph d is an otherwise exception to the statue in of statute or propose and it talks about the injury being caused by the act or mission does not occur until the death of the person for whom professional services were rendered in my brief i give at least seven instances where the facts are similar to wacko and to this case although my opponent would like to make a distinction on the basis that that was a trust case that  living trust case and arguably there were things going to be happening unless and until somebody died i actually believe that those similarities are exactly the same in a scenario where i'd attorney creates a joint tenancy with ri survivorship a relationship where the great tore the husband conveys from himself to himself and his wife so the question there is well what happens upon the first of them to die there is actually a  this case i'm the first of the joint tenants to die the real issue is did judith snyder stand to receive anything from wilbert her husband upon his death and of course she did and since she did that's an interesting question and i think it's an answer to in part in the pleadings in this case where the two of them as husband and wife in two thousand and six went to itasca bank and actually got a mortgage under the assumption that they are both joint tenants with ri survivorship they both needed to sign off on that document the bank to the title search found that the last deed of record was a quit claim and gave them the funds so she did have rights and she exercised them but they already joint tenants can sever the joint tenancy this court has recognized that repeatedly the rights of an undivided one half interest can be a mortgage they can be  executed on so had she gotten those rights there wouldn't have been any problem but she obviously lost something when the deed was created we say as counsel is quoted me to judge popejoy your honor to be  ectually honest there was an injury when she got nothing from day one if you compare the relationship of joint tenants to tenants in common had judas night or been given a tendency and common she would have received nothing in the event of her husband's death we would have no case it's too late but because elliot heidelburg or created this relationship whether he was asked to or not we don't know  duty to check the title check the chain of title hire executing any kind of attack like this well i think not unlike the wacko decision of this court of a couple of years ago where the land was actually in a land trust and yet the attorney perhaps didn't check run on the premise that it wasn't him that documented it and attempted to create a disposition here i think this court could find and i'm going to turn that's going to be bound by whatever your decision is as well but there is a duty to you to chat if a client comes in again in this case we don't know what was said to determine do you were entitle am i going to participate in a meaningful transaction with a climate where am i just go rely on someone to come who comes in and says can you do this and let for me and the attorney sort of goes well sure i can do anything i'm just a scrivener here i don't have a license i don't really have a duty to look beyond the transaction you're asking me to set up beneficial interest i'm not going to do it quickly don't turn it can't should i take directions from this file this is you know i want to quit claim this time to put it in joint tenancy i think there are duties that we need to impose upon ourselves as attorneys and the duty of competency i think extends to the point of testing a client's intentions stated discussions and goals and then implementing them appropriately and if i don't believe mr snyder came in and told this attorney the type of documents he uses or made a representation about what kind of title he held we don't know we'll never know that right for which the ra provides a remedy arguably and we're taught this i think from property law in law school when someone doesn't receive a right that was intended that's a moment of loss no she lived there for ten years without anybody displacing her so did she suffer economically maybe she didn't in fact she went got a mortgage she lived happily with her husband till the day of his death she was in it was that was the intent it would occur to me from the right but i think it comes in two parts with the nature of that convey it's an immediate interest as well as if you will a future interest although i don't think technically it is what but what we learn  she should have gotten an undivided one half interest in that real estate with her husband and then upon his death the whole or vice a versa sheep if she pretty deceased her husband he would  of injuries yes but what's wrong with her response that the first injury which you acknowledge is is really the predecessor to the second injury and therefore that would be the injury even under the provision you would have us look at which is d it's as when the injury caused by the act or omission does not occur until the death of the person means you know she thinks we should stop really so the purpose of c you point is to d on the death well my contention is there are two injuries that could be created from the same operative facts of it of an attorney improperly creating a document whether it's a trust whether it's a deed whether it's a joint tenancy relationship and in this case th the injury that would be the one i'm complaining of caused by the act or omission does not occur when the actual mission was the creation of the joint tenancy deed when that was the wrong document the there are two injuries current i don't have any problem with just destroy them since concurrence if if that's the alternative is that this court finds to be the most reasonable in the sense of certainly a half loaf is better than no l i actually believe that although we don't we haven't been through the trial court level to the extent that other cases have we're out on emotion i think that the court could hear testimony as to the value of the loss of an undivided one  ascertainable so at a minimum i think this court should affirm the two underlying snyder opinions one in two are a and b however you like it and certainly rely on this  mclaren's position based on the death of a somewhat problematic well when i read you another opportunity to do something we can later use against you maybe i should sit down and if you look at the opinion of the court by justice mclaren it's virtually identical in the first opinion as well as the second to the only real switch to the second opinion is the concurrence and then of course the i'm not given any indication or insight as to why the concurrence in the dissent didn't appear in the first opinion i was very very happy when the august i'm sorry october two thousand  time right the case is thus far i believe have been considered singular injury by the nature of the documents if we would conclude that there is a singular injury  and we'll be adopting special times because you said there were some injury earlier well i'd like to get to be consistent at least with myself i think there were two events of injury either of which could give rise to a cause of action unfortunately the first ones too late right but the second one is not so you will be eventually turns but the special concurrence makes this  n that there are two injuries and i think justice jorgensen says she doesn't have a problem with that end if i may be extending her logic a little bit the end tire loss could be pinned on either  one i don't we haven't gotten any direction from anyone and perhaps this this panel will provide it to the extent there is a ruling and it's in favor of mrs knight or perhaps we do need some direction in terms of you know how to quantify that loss if it is the second of the two or if it is the second of the two and it is the entire loss that we have no direct from and i have looked at the legislative history i've looked at trying to find cases from other jurisdictions and and this is this is a new one we've been focusing primarily on when the injury occurred but let me back up a little bit and perhaps in line with justice garments question about the attorney's duty here we don't know what transpired at the time that the deed  was repaired one of the questions i have with regard to the duty is there's that any significance in the fact that a quit claim deed was used as opposed to a warranty sometimes that's done when there's it's unclear as to what the title is and i'm going to convey whatever i have even if i don't have anything so then is the duty is the legal malpractise here the preparation of the deed that didn't convey what parties thought maybe was being conveyed or was the legal malpracti the failure to conduct a title search if the client comes in and brings in a deed and says here's the deed to myself in my former wife or just myself i want this deed now prepared to convey it to m none of several and frankly i don't think he did the job that was necessary to determine whether this client who presented himself with a problem to be solved only he did anything that was necessary to convince himself or give up advice to his client to properly effectuate the goals of the client now whether that meant he should've ordered a title search he should have ordered a plan of survey he should have asked for a marriage licen i don't know those things but i think in terms of this transaction it's clear title was not in the name of mr snyder that could have been ascertained in a sense in several different ways the most conclusive of which would have been an accurate title search so i think it did in conclusion i'm asking that judas knight or her rights be recognised as they have been in the very briefly we have counsel's argument about what could or should have been done with regard to mr heidelberg but we're relying on this court must rely simply on the allegations of the complaint and the allegations of the complaint concludes from who's orally state that all relevant times that was the intent of wilbert and judith to become co owners as joint tenants with rights of survivorship there is no evidence before this court other than speculation an argument as to what mr heidelberg or should have done did do outgrowth of the first if she judyth never received interest in joint tenancy there never was a right of survivorship and by the plaintiff's own allegations it was the intent should become a joint tenant with rights of survivorship so truly is not a second distinct discrete injury it's an outgrowth of the first one and again there is no case law cited that i am aware of or cited by the plaintiff's attorney in this case which indicates that there can be multiple injuries and the statute does not begin to run whether it be limitations or repose until the last possible injury certainly the statute doesn't say the last injury and the case law again indicates that  a cause of action for legal malpractise accrues when each element of the claim is known a reasonably can be known or is available that would include duty breach and a injury and injury damages which could be as minimal as attorney's f rabbit without actually a remedy for the underlying negligence in this case no one argues the injury and in fact the primary injury occurred in one thousand nine hundred seven so for all of those reasons we d s at the trial oh shoot let me ask you this  terms of the difference between the two injuries is it possible to woodcraft a conveyance that would give a life estate interest only as a joint credit without survivorship i think that's possible so if that is possible then there is a way to distinguish between that life  state hid the right to be conveyed intended to be conveyed as a survivorship right i exclusively i certainly think that this possible there is no evidence that there was ever any intent or that they had occurred here the only evidence again and were going on player sale a geisha and the evidence we do have is that it was always intended to be joint tenancy with rights of survivorship and with the with rights of survivorship there constitutes this injury which flows out of the first one and which would never have happened