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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES VALUKAS, )

Plaintiff, )

)

v. )

) Case No. 12-cv-2876

BOTTI MARINACCIO, LTD and LEE A. )

MARINACCIO, )

Defendant. ) Judge Sharon Johnson Coleman

)

MEMORANDUM OPINION AND ORDER

Plaintiff James Valukas (“Valukas”) retained defendants Botti, Marinaccio, Ltd. and Lee 

A. Marinaccio (collectively “Marinaccio” or “defendants”) to represent him in an underlying 

divorce action. Valukas brought suit against Marinaccio alleging legal malpractice. After 

Valukas presented his case in chief before a jury, Marinaccio moved for a directed verdict 

pursuant to Fed. R. Civ. P. 50(a) arguing: 1) that Valukas failed to make a prima facie case of 

professional malpractice; and 2) Valukas failed to meet his burden for the application of 

equitable estoppel on his complaint that would otherwise be barred by the statute of repose. For 

the following reasons, defendants’ motion is granted.

Background

In the underlying action, Marinaccio drafted Valukas’ Marital Settlement Agreement (the 

“Agreement”) which was executed on September 29, 2004. Article II, Section 3 of the 

Agreement provided that Valukas would continue to pay his former wife maintenance payments 

equal to thirty percent of his net “earned income.” Valukas’ former wife subsequently sought to 

collect maintenance on the exercise of non-marital stock options as earned income. Valukas, 

represented by the defendants, disputed whether his wife was entitled to such stock options. 

When Marinaccio was unable to resolve the dispute with Valukas’ former wife short of trial, 

Valukas hired new counsel who later reached a settlement with his former wife. Valukas then 

brought this instant action against Marinaccio for legal malpractice alleging that Marinaccio was 

negligent in his representation of him in the underlying divorce action. Valukas contends that 

the defendants consistently reassured him that his former wife’s claims were without merit and 

that the stock options were not included as “earned income” in order to conceal their negligent
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drafting of the Agreement. Marinaccio now moves for a directed verdict arguing that Valukas 

has failed to establish a prima facie case for professional malpractice and has failed to place 

“clear and unequivocal” evidence before the Court in support of his argument for the application 

of equitable estoppel. 

Legal Standard

Pursuant to Fed. R. Civ. P. 50(a), if a party has been fully heard on an issue during a jury 

trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary 

basis to find for that party on that issue, the court may resolve the issue against the party. A 

motion for directed verdict should be granted only if all of the evidence, when viewed in the light

most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict 

based on the evidence could ever stand. Jackson v. Bunge Corp., 40 F.3d 239, 242 (7th Cir. 

1994). In addition to moving for a directed verdict, the defendants renew their motion to dismiss 

this case as barred by the statute of repose. The burden is on the plaintiff to establish equitable 

estoppel by clear and convincing evidence. Falcon Funding, LLC v. City of Elgin, 399 Ill. App. 

3d 142, (Ill. App. Ct. 2d Dist. 2010); see also Jenkins v. Nat’l R.R. Passenger Corp., 2008 U.S. 

Dist. LEXIS 47773, 2008 WL 2520414 *6 (N.D. Ill. June 20, 2008).

Discussion

Initially, this Court notes that but for the doctrine of equitable estoppel, Valukas’ claims 

are barred as of September 29, 2010, pursuant to the statute of repose.1 Earlier in this litigation, 

this Court denied defendants’ motion for summary judgment based on questions of fact 

surrounding Marinaccio’s representations to Valukas regarding his ex-wife’s rights to postdecree stock options. However, this Court noted that while Valukas’ claims would not be 

dismissed on summary judgment, dismissal of his claims may be appropriate at trial on a directed 

verdict. Accordingly, this Court invited either party to move for a directed verdict based on any 

 1 The statute of repose extinguishes an action after a fixed period of time regardless of when the action accrued and 

is applicable in all actions for professional malpractice. 735 Ill. Comp. Stat. Ann. 5/13-214.3 (West 2012); DeLuna 

v. Burciaga, 223 Ill. 2d 49, 61 (Ill. 2006); see also Bohannon v. Howie, No. 07 C 1383, 2007 U.S. Dist. LEXIS 

55872, at *4 (N.D. Ill. Aug. 1, 2007). The six-year limitation under the statute of repose begins to run from the date 

of the initial malpractice which gave rise to the plaintiff’s loss and created the subsequent need for remediation. 

Mauer v. Rubin, 401 Ill. App. 3d 630, 646 (Ill. App. Ct. 1st Dist. 2010). Here, the six-year limitation began to run 

on September 29, 2004, the date giving effect to Marinaccio’s negligent act of improperly drafting and executing the 

marital settlement agreement. As such, pursuant to the statute of repose Valukas’ claims were barred as of 

September 29, 2010.
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issues that were considered in the parties’ motions for summary judgment. (Dkt. 141). In order 

to successfully invoke the doctrine of equitable estoppel Valukas must establish the following: 

(1) Marinaccio misrepresented or concealed material facts; (2) Marinaccio knew 

at the time he made the representations that they were untrue; (3) Valukas did not 

know that the representations were untrue when they were made and when he 

decided to act, or not, upon the representations; (4) Marinaccio intended or 

reasonably expected that Valukas would determine whether to act, or not, based 

upon the representations; (5) Valukas reasonably relied upon the representations 

in good faith to his or her detriment; and (6) Valukas would be prejudiced by his 

reliance on the representations if Marinaccio is permitted to deny the truth 

thereof.

See DeLuna v. Burciaga, 223 Ill. 2d 49 (Ill. 2006). 

Even if this Court assumes that Marinaccio misrepresented and concealed material facts 

by knowingly making untrue representations about the strength of the plaintiff’s former wife’s 

claims, Valukas fails to demonstrate that he did not discover Marinaccio’s alleged fraudulent 

concealment prior to the running of the limitations period. Equitable estoppel will not apply if 

“the claimant discovers the fraudulent concealment, or should have discovered it through 

ordinary diligence, and a reasonable time remains within the remaining limitations period.” 

Rossetti v. Wascher, No. 07 C 4907, 2011 U.S. Dist. LEXIS 22262 (N.D. Ill. Mar. 3, 2011) 

(citing Mauer v. Rubin, 926 N.E.2d 947, 963 (Ill. App. Ct. 1st Dist. 2010)). 

Valukas testified at trial that he received a correspondence letter from Marinaccio dated 

July 23, 2009, in which Marinaccio clearly indicated that he was having problems interpreting 

sections of the Agreement and his former wife’s claims to post-divorce stock options. (Def.’s 

Ex. 13). The letter specifically provided that there was an issue as to whether incentive stock 

options were considered incentive pay to be included in the thirty percent maintenance payments 

owed to Valukas’ former wife. At the very least, this letter and the fact that Valukas’ former 

wife was once again seeking legal action against him in pursuit of post-divorce stock options put 

Valukas on notice that there was a problem which he could have discovered through ordinary 

diligence. 

Any concealment of issues by Marinaccio concerning the strength of Valukas’ former 

wife’s claims no longer existed once Marinaccio expressly stated that he “struggled 

considerably” with the tax information Valukas provided him for purposes of determining what 

maintenance his former wife was entitled to. Valukas himself testified that he understood the 

letter to mean that there were problems with the interpretation of the Agreement, but Valukas 
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maintains that Marinaccio assured him that he would handle it. (Trial Transcript 6/18/13,

336:10-13). Valukas’ expectation that his attorney would resolve the problems to his satisfaction

does not obviate the fact that Valukas had knowledge of the problem which he claims 

Marinaccio concealed from him. Furthermore, Valukas testified that he sent a letter to 

Marinaccio on July 30, 2010, in which he complained that the Agreement as drafted left him 

open to “unlimited returns to court and continuous legal fees.” (Defs.’ Ex. 18). Valukas testified 

that he knew “something [was] wrong” when he sent the letter expressing his frustrations with 

the continued litigation. Moreover, in oral arguments in opposition to Marinaccio’s motion for 

directed verdict, Valukas provides no compelling reasons or evidence as to why he was not 

placed on adequate notice of the drafting problems as of the July 23, 2009 or July 30, 2010

letters. (Trial Transcript 6/18/13, 536:24-543:14). Valukas fails to rebut the argument presented 

by defendants that he knew or should have known the truth concerning potential drafting 

problems and liabilities under the Agreement.

Conclusion

Accordingly, the defendants’ motion for directed verdict is granted. The plaintiff’s 

complaint is barred by the statute of repose and the plaintiff has failed to sustain his burden for 

an equitable estoppel defense. With this finding, this Court need not address the remaining 

contentions of defendants’ motion for directed verdict.

IT IS SO ORDERED.

______________________

Date: June 19, 2013

____________________________

Sharon Johnson Coleman

United States District Judge