SIXTH DI VISI ON March 26, 2010 No. 1-08-3211

MARSHAL

L MAU ER, ) Appeal from the ) Circuit Court of Plaintiff -Appella nt, ) Cook County, I llinois.

) v. ) ) No. 07 L 10338 ROGER RUBIN and BEERMAN, ) SWERDLOVE, WOLOSHI N, BAREZKY, ) BECKER, GENIN &

LONDON, ) Honorab le ) Barbara A. McDonald, Defendants-Appellees. ) Judge Presi ding.

JUSTICE JOSEPH GORDO

N deliver ed the opi nion of the

court: This is a legal malpractice action broug ht by plaintiff Marshall Maue r on October 1, 2007, against his former attorney, Roger Rubin, and Rubin’s law firm, Beermann, Swerdlove , Woloshin, Barezky, Be cker, Genin & L ondon (the Beermann firm). The issue bef ore us on appeal is whether plaintiff’s suit is barred by the six-year statute of re

pose for legal malpractice actions (735 IL CS 5/13-214.3 (West 2009)). Rubin, as a

member o f the Be ermann f irm, repr esented Mauer in the under

lyin g action, in which Mauer obtained a divorce from his wife, Frances Mauer (Franc es). Mauer was the preside nt of Dy namic He althcar

e Consulta

nts, I nc., and he posses sed inter

ests in va rious hea lth care entities valued at millions of dollars, as well as various debts and liabilities in connection with those interests. After negotiating, Mauer and Frances reache d an understanding regar ding the division of these assets and obligations. Defendants then drew up a written marital settlement agreement (Agr eement) which the parties signed and whic h was incorporated into theNo. 08-2311

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judgment of dissolution entered on June 18, 2001. Mauer alleges that this Agr eement was defective. Specifically , he argues that defendants neg ligently omitted cer

tain obligations that

were a ttached to the divid

ed marita l proper ties, thus l eaving

him responsible for more tha n his proper share of

the oblig ations. Ma

uer fur ther alle ges tha

t when he brough t this err or to defenda nts’ atte ntion, def endants neglig ently

delay ed filing a petition for reli ef from j udgmen

t, and that they later

withdrew that petition without Mauer’s knowledge or consent on F ebruary 16, 2005, the date it was set for hearing. Afte r February

16, 2005, defendants’ representation of Mauer e nded, an d Mauer h

ired new counsel. Meanwhile, the Wedgewood Nursing Pavilion, L LC, a company

subject to the Agree ment, was

liquidate d in March 2005. Under the A greement, Fra

nces wa s entitled

to $831,275 of the liquidation proceeds. Mauer refused to give her this amount. He claimed that he was entitled to keep it as a set-off aga inst her unpaid obligations that she should have borne under the understanding they reached regar

ding the division of their marital assets, but that were erroneously omitted fr

om the Agreement. France s then brought an action for conversion (hereinafter, the conversion suit) ag ainst him. On October 11, 2005, Frances prevailed in the

convers ion suit, a

nd judgme

nt in the a mount of $8 31,275 plu s interes t was ente red ag ainst Mauer. Su

bsequen tly, on Octobe

r 1, 2007, Mauer br

ought the instant le gal mal

practic e lawsuit agains t Rubin and

the other defenda nt attorne ys i n this cas e, seeki

ng dama ges tha t he allegedly incurre d as a re sult of the defect ive Agr eement, including

the judg ment rendered a

gainst h im in the conve rsion suit. Defendants filed motions to dismiss pursuant to 735 IL CS 5/2-619 (West 2009). TheyNo. 08-2311

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contended, in relevant part, that Mauer’s ac tion was time-barred by

the six-year statute of re

pose, since the action was filed over six years after the judgment of dissolution incorporating the allegedly defective Agreement. The trial court granted these motions. Mauer now appe als. For the rea sons that f

ollow, we affirm. I. BACKGROUND In his complaint for lega

l malpractice, Mauer alleged tha t on January 1998, he retaine d the Bee rmann fir m to repre sent him in a

dissolution

of marri age pr

oceedin g. The marital e state included interests in various partnerships and entities involved in the health care business. Many of these entities w ere inde

bted to le nders. Ma

uer and h is ex-wife agree d to a distr

ibution of these assets and debts whereby

each of them would be responsible for the debts attache d to the pr op er ti es th ey r ec ei ve d i n t he se tt le me nt , o r w he re th e p ar ti es re ma in ed co -o wn er s o f a pr op er ty, they were to have joint responsibility for any debt attached to that property . Defendants then drew up t he Agr eement f or Mauer and his ex- wife to si gn. Mauer alleged that in this document, defendants inadvertently

failed to attach the complete list of debts that should have been divided between him and his ex-wife, thus leaving him with more than his proper share of the debts. Mauer f urther a lleged that Rubin a ssured hi

m that all a spects of

the settle ment had b een prop erly documented in the Agreement, so Mauer did not scr utinize the details of the Agreement before signi ng. A copy of the A

greement, dated June 18, 2001, is attached to the complaint. I t identifies Mauer a s the pre sident of Dy namic He althcar

e Consulta

nts, I nc., pro vides a lis t of owne rship interests in companies that Mauer has, and provides a one-pa ge list of loans and guarantee sNo. 08-2311

1 When the court approves a marital settlement agre ement concerning property rights and incorporates it into the divorce judgment, the agr eement is merged into the judgment, and the parties’ rights thereafter re st upon that judgment. Sondin v. Bernstei n , 126 Ill. App. 3d 703, 708, 467 N.E.2d 926, 931 (1984). Illinois courts have re cognized a 2-1401 petition as a proper avenue -4- attached to those interests. It also sets for th the division of those ownership interests and liabilitie s. The Ag

reemen t is initiale d on ever

y pa ge by Mauer a nd Frances and b ears the ir signatures at the end. On that same day , June 18, 2001, the trial court entered a judgment for dissolution

of marri age tha

t incorporated th e terms of the Agr eement. After this judgment had been entered, Maue r allegedly

realized that the Agreement was defective and called this matter to the attention of Rubin and Rubin’s senior partner Beermann. In the complain t, he state d that this meeting occurr ed in July 2002. How ever, in

a subsequ

ently filed affidavit, he changed this date to July 2001, placing it a couple weeks after the divorce judgmen t. At this time, according to Mauer, R

ubin assur

ed him tha

t he would

file an a ppropria te motion to vacate the judgment so that the accurate list could be made part of the Agreement. Howeve r, Rubin did

not actua lly f ile a postj udgmen

t motion, sty

led a “mo tion to cor

rect,” until September 12, 2002. A copy of this motion is attached to the complaint. It states that it is being brough t pursuan t to section 2-1203 o f the Code of Civil Pro cedure

(735 I LCS 5/2 -1203 (We st 2009)), which provides for modification of a judgment in a non-jur y case w ithin 30 days after entry of the judg

ment, and section 2-1401 of the Code of Civil Procedure (735 I LCS 5/2-1401 (West 2009)), which provides for relief from judgme nts after the 30-day

period has passed. The motion seeks modification of the divorce settlement on grounds of mutual mistake. 1 The trialNo. 08-2311

for ref ormation o f such an

agree ment wher

e it fails to express

the part ies’ rea l intention s due to mutual mistake. See In re Marriage of Johnson , 237 Ill. App. 3d 381, 394, 604 N.E.2d 378, 387- 88 (1992); In re Marriage of Shelton , 127 Ill. App. 3d 775, 780-81, 469 N.E.2d 618, 623 (1984). The petitioner bears the burden of showing, by clear and convincing evidence , that the settlement was written in terms that violate the understanding of both parties. Johnson , 237 Ill. App. 3d at 394, 604 N.E.2d at 388

. -5- court str uck the portion of the petition brough t pursuan t to section 2-1203 a s untimely , leaving it as a pure 2-1401 petition. (For this reason, we shall re fer to it as “the 2-1401 petition.”) In her response to the 2- 1401 petition, Frances argued that modifica tion of the judgment should be denied because Mauer’s counsel wa ited more than 15 months after the entry of the divorce decree to file the

petition a

nd there fore did

not act wi

th due diligence. Sh e also contende d that the

petition di d not alle ge a me ritorious claim, in t

hat she ha

d never i ntended t o be responsible for the additional obligations that Mauer sought to attac h to the Agreement, so no mutual mista

ke had oc curred . The re cord doe s not ref lect wha t, if any , respons e defen

dants made to these contentions. However, Mauer alleg ed that on February 16, 2005, the date that the section 2-1401 petition was set for hearing, Rubin advised the cour t and opposing counsel that he was voluntarily withdrawing the petition. According to Mauer, Rubin took this action without first inf orming h im or obtai

ning his c onsent. Mauer f urther a lleged that his ex- wife file d a suit for conver sion (the convers ion suit) agains t him in 2005 . He did no t elabor ate upon t he natur e of this su

it in his com

plaint exce

pt to aver tha t she soug ht relief which wou

ld have be en prec luded if the defen dants had handled h

isNo. 08-2311

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case wit h ordinar y c are. I n Octobe r 2005, Ma

uer’s ex-wife pr

evailed in her sui t, and judg

ment in the amount of $831,000 plus interest was rendered ag ainst Mauer. Based upon these allegations, the complaint stated that def endants had fallen short of the standar d of car e in the f ollowing way s: “19. A reasonably

careful attorney

handling Plaintiff’s matter would have: (a) made certain the transaction was documented pr operly; (b) upon lea

rning there was inadequate documentation to reflect the true ag reement of the Plaintiff and his ex-wife, filed a timely post-judgme nt motion; and (c) would have prosecuted the 2-1401 petition; or (d) obtain the consent of the client before withdra wing the petition.” Mauer therefore sought dama ges in the amount of $831,000 plus interest, plus an unspecified sum for the various obligations that he alleged should have be en allocated to his ex-wife but which he remained solely responsible for, by r

eason of the Agreement as dra wn up by defenda nts. Defendants each filed separa te motions to dismiss under section 2-619 of the Code of Civil Procedure (735 IL CS 5/2-619 (West 2009) (allowing involuntary dismissal of ac tions not commenced within the time allowed by law)). They

each contended that Mauer’s action was barred by t he six-y ear sta tute of re pose for legal malprac tice actions (735 IL CS 5/13-214 .3 (West 2009)), since his complaint, filed on October 1, 2007, came over six y ears after judgment was entered in the dissolution of marriage case on June 18, 2001. They further contended that Mauer could not e stablish da

mages, because

the judg ment ren dered a gainst h im in the conversion

suit

was a re sult of his own action s, not the a ctions of defenda nts.No. 08-2311

-7-

In re sponse to d

efenda nts’ statu te of re pose arg ument, Ma

uer cont ended tha t defend ants had bee n enga ged in a continuou s course

of neg ligent r

eprese ntation tha

t continue d until defenda nts withdr

ew the 2- 1401 petit

ion on Fe bruary 16, 2005. T

herefore, he a

rgued , the statu

te of repose did not begin to run until that date. He further a verred, in an attached affidavit, that Rubin assured him on multiple occasions that the error with the Agreeme nt would be corrected and that, even under the current version of the Agreement, his ex-wife was responsible for the guara ntees an d conting ent liabil ities atte ndant to th e busines s interes ts which she was aw arded in the divorce, despite the fact that the full list of such obligations was not attache d. In response to defenda

nts’ contention that he could not prove damages, Mauer argued that his loss in the conversion suit was, in fact, a result of defendants’ negligence. He pointed out that the suit was triggered by the March 2005 liquidation of the Wedgewood Nursing Pavilion, LL C, which was one of the health care companie s that Mauer had an interest in, and which was subject to the Agreement. Under the Ag reement, Frances was entitled to rec eive $831,275 from the liquidation of the company. Maue r, in his capacity a s representative of the company, wrote a check pay able to Frances for $831,275, but he then ref used to tender the check to her. He asserte d that he was entitle d to keep p art of tho se funds a s a set-o ff aga inst Fra nces’ un paid obligations – obligations that were not explicitly listed in the Ag reement as a result of defenda nts’ alle ged ne glige

nce, but t hat Rubin h ad assur

ed Mauer that Fra nces wou ld nevertheless be held responsible for. Fra nces then sued Mauer for conversion. The tr ial court rejected Mauer’s set-off ar gument and entered judgment for Frances in the amount of $831,275 plus interest on October 11, 2005. Mauer contended that his set-off a rgument would have beenNo. 08-2311

-8-

successful but for defendants’ neg ligence in failing to include the obligations at issue in the Agreement and in subsequently failing to proceed with the 2-1401 petition for relief f rom judgmen t. On May 29, 2008, af

ter hearing oral arg

ument on defendants’ motions to dismiss, the trial court granted the motions in part and denied them in part. I t found that Mauer’s allegations of negligence occur

ring prior to the June 18, 2001, entry of judgment in the divorce case weretimebarred under the statute of repose. Ac cordingly , the court dismissed paragraph 19(a) of Mauer’s complaint, which dealt with defendants’ alleged f ailure to draft the Agreement prope rly. At oral argument, defendants also arg ued that Mauer’s allegations of negligence subsequent to the entry of judgment in the divorce case – that is, defenda nts’ alleged failure to properly file and prosecute a petition for relief from judgme nt – could not form the basis for any recovery , insofar as Mauer could not show that a correctly -handled petition would have been successful. Any damages arising from the mishandling of the petition would necessarily be speculative, they argued. Defendants there fore urged the court to dismiss Mauer’s complaint in its entirety . The court acknowledged that this arg ument was “persuasive,” but it found that defendants did not adequately

raise it in their motion to dismiss, so Mauer had not yet been a fforded a proper chance to respond to it. The court therefore declined to dismiss the remainder of Mauer’s complaint, but it stated t hat defe ndants we

re allow ed to file

another motion to dismiss. Defendants then filed 2-619 motions to dismiss the remaining portions of Mauer’s complaint, raising the argument outlined above. On Oc tober 20, 2008, after hearing ora l argument by

the parties, the trial court granted those motions and dismissed Mauer’s c omplaintNo. 08-2311

2 Defendants also argue, as theydid before the trial court, that plaintiff’s claim is timebarred under the two-y

ear statute of limitations. However, we need not addre ss this issue, because we find the statute

of repos e issue to

be disposi

tive of thi s appeal

. -9- with prej udice in i

ts entire ty. It is f rom this jud

gment that Mauer

now appe als.

II. AN ALYS IS At issue in this case is whether Mauer’s action is barred unde r the six-year statute of repose f or lega l malprac tice ac tions. 2 Mauer filed his suit on October 1, 2007. Defendants arg ue that time began to run on the statute of repose on June 18, 2001, the date of entr y of the judg

ment of dissolution incorporating the allegedly defective Agreement. Maue r, on the other hand, contends that time did not begin running on the statute of repose until Fe bruary 16, 2005, w

hen defendants withdrew his 2-1401 motion and their representation of him ende d. In the alternative, Mauer contends that the statute of repose should be tolled in accor dance with the doctrines of equitable estoppel and fraudulent concealment, bec ause of his allegations that defendants lulled him into inaction by falsely assuring him that his interests were being protec ted. We consider these contentions in turn, reviewing the trial court’s ruling on this matter de novo

. Trogi v. Diabri & Vicari, P. C. , 362 Ill. App. 3d 93, 95, 839 N.E.2d 553, 555 (2005) ( de novo review of 2- 619 motion to dismiss based on statute of repose). A. Startin

g Date of the Per

iod of Rep ose Mauer first argues that defe ndants were engag ed in a continuous course of neglige nt conduct toward him from the time that Rubin drew up the defective Ag reement to the time thatNo. 08-2311

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Rubin withdrew his 2-1401 motion for relief from judgment on Februar y 16, 2005. There fore, Mauer contends that the statute of repose should not begin to run until Fe bruary 16, 2005. Defendants, on the other hand, contend that all of Mauer ’s injuries resulted from alleged acts or omissions occurring on or before June 18, 2001, when the Ag reement was signed and the divorce judgment was entered, so that date marks the prope r start of the repose period. Section 13-214.3 of the Code of Civil Procedure sets out the statutes of limitation and repose f or lega l malprac tice ac tions as fo llows: “(b) An action for damage s based on tort, contract, or otherwise (i) ag ainst an attorney ar

ising out of an act or omission in the performance of prof essional services or (ii) ag ainst a non-attorney employ ee aris ing out of

an act or omission in t

he cours e of his or her employme

nt by an attorney

to assist the attorney in perf orming professional services must be commenced within 2 y ears from the time the person bringing the action knew or r easonab ly s hould hav e known of the injury

for whic h damag es are s ought. (c) An action described in subsection (b) may not be commenced in any event more tha n 6 years af

ter the d ate on wh ich the a ct or omiss ion occur

red.” 73 5 ILCS 5/13-214.3 (West 2009). Thus, the statute of limitations

begins t o run aft er a ca use of ac tion has a ccrued , while the

statute of repose, which is at issue in the present case, beg ins to run as soon as an event creating the malpractice occ

urs, reg ardless

of wheth er any

injury has y et result ed so as to

cause a n action t o

accrue. Trogi , 362 Ill . App. 3d at 9 6, 839 N.E.2 d at 55 6, cit ing Fergusonv. McKe nzie , 202 I ll. 2d 304, 311 , 780 N.E. 2d 660, 664 (2001); DeLuna v. Burciaga , 223 Ill. 2d 49, 61, 857 N.E.2dNo. 08-2311

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229, 237 (2006); see Meyers v. Underwood , 316 Ill. App. 3d 970, 985-86, 738 N.E.2d 118, 129 (2000) ( not funda mentally unfair f or statute of repos e to bar p laintiff

s’ lega l malprac tice cla ims before they

accrued). This is because the statute of re pose “is intended to terminate the possibility of liability

after a defined period of time, reg ardless of a potential plaintiff's lack of knowledge of his or her cause of action.” Ferguson , 202 Ill. 2d at 311, 780 N.E.2d at 664. As noted above, Mauer first contends that defenda nts were engage d in a continuous course of negligent conduct toward him, and the operative date for purposes of the statute of repose should therefore be the date that such ne gligent conduct ended – namely , February

16, 2005, when defendants voluntarily dismissed his 2-1401 petition for relief from the divorce judgment. In this reg ard, he seeks to draw an analog y to our supreme c ourt’s recognition of the continuous course of negligent trea tment doctrine in the realm of medical malpractice. Cunningham v. Huffman , 154 Ill. 2d 398, 406, 609 N.E.2d 321, 325 (1993). Under that doctr ine, if a physician e

ngages in a continuous and unbroken c ourse of negligent treatment, a nd the treatment is “so related as to constitute one continuing wrong ,” the statute of repose will not start to run until the last date of negligent treatment. Cunningham , 154 Ill. 2d at 406, 609 N.E.2d at 325. This differs from the continuous course of treatment doctrine, w hich the Cunningham court explicitly rejected. Cunningham , 154 Ill. 2d at 403, 609 N.E.2d at 324. Under the continuous

course o f treatment doctr

ine, the s tatute of

repose f or a medi cal malpr

actice case doe s not beg in to run until the patient-physician re lationship ends, as long as the phy sician has been continuou sly

treating plaintiff for a condition tha

t was occ asioned by a

prior ne glige

nt act – regardless of whether the phy sician’s subsequent treatment of the condition was neglig ent.No. 08-2311

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Cunningham , 154 Ill. 2d at 403, 609 N.E.2d at 324. By c ontrast, the continuous course of negligent treatment doctrine cove rs situations where “the cumulative results of continued negligence is the cause

of the injury.” Cunningham , 154 Ill. 2d at 405, 609 N.E.2d at 325. Consequently, it “nece ssarily only encompasses the continuum where the phy sician was negligent.” Cunningham , 154 Ill. 2d at 407, 609 N.E.2d at 325. Th us, for in stance, it would apply to situations in which patients are injured “ due to negligent or unnecessary exposure to Xray ra diation or administration of medication over a span of y ears.” Cunningham , 154 Ill. 2d at 405, 609 N.E.2d at 325. Just as the Cunningham court re jected the continu

ous cours e of tre atment do ctrine w ith regard to medical malpractice , Illinois courts have rejected the continuous course of representation doctrine with regar d to legal malpractice, finding that the statute of repose is not tolled merely by

the continuance of the attorney -client relationship. See Witt v. Jones & Jones Law Office

s, P.C. , 269 Ill . App. 3d 540 , 544, 646 N. E.2d 2 3, 25 ( 1995) (citi ng Cunningham in rejecti ng cont inuous re present ation rule ); Sorenson v. Law Offices of Theodore Poehlmann , 327 Ill. App. 3d 706, 710, 764 N.E.2d 1227, 1231 (2002) (continued existence of a ttorney-client relationship after preparation of alleg edly defe ctive antenuptial agreement did not affe ct starting point of period of repose). Nor does Mauer c ontest this fact in his brief. Mauer instead argues that he was injured due to a continuous course of negligen t legal representation over a spa n of ye ars, beg

inning with defe

ndants’ i nitial dra fting of the defe ctive Ag

reemen t, continu ing to the ir delay in filing a

motion for relief from judgment, and lasting until their withdrawal of the motion without his knowledge or consent on February 16, 2005. Thus, he contends, under Cunningham ,No. 08-2311

-13-

the peri od of rep ose for t

his contin uous course of neg

ligent r eprese ntation should not sta

rt until that final date. However, the decision of our supreme court in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc. , 199 Ill. 2d 325, 770 N.E.2d 177 (2002), casts doubt upon whether the continuous course of negligent trea tment doctrine, as articulated in Cunningham , can be applied to the realm of legal malpractice. Althoug h Belleville was not a

legal malprac tice ca se, it is releva nt here b ecause

it conside

red, and rejecte d, applic ation of the continu ous tort do ctrine to extend the period of limitations in a non-medical-malpractice setting. The per iod of limitations at issue in Belleville was the four-y ear limit under the Motor Vehicle Franchise Ac t (Act) (815 IL CS 710/14 (West 2000)). Plaintiff, an automobile dealership, sued defendants for alleg ed violations of the Act, claiming that defendants had failed to alloca te to it the requisite amount of Toyota vehicles ove

r the previous decade. Bellevi lle , 19 9 Ill . 2d at 3 28, 770 N.E .2d at 1 81. It argued that these acts of improper a llocation constituted a continuous decade-long course of tortious conduct, and so, by ana logy to Cunningham , the limita tions per iod should n

ot begin to run until that course had ended. Bellevi lle , 199 Ill. 2d at 345, 770 N.E.2d at 190. The Belleville court rejected this attempted extension of Cunningham , explaining that Cunningham “did not adopt a continuing violation rule of genera l applicability in all tort cases.” Bellevi lle , 199 Ill. 2d at 347, 770 N.E.2d at 191. Rather, its holding relied in pa rt upon the particular language

of the medical malpractice statute of repose, w hich provides that an action may not be broug

ht “more than 4 ye ars after the date on which occurr ed the act or omission or

occurrence allege d in such a ction to ha

ve been the caus e of such

injury or death” (empha sisNo. 08-2311

-14-

added) (735 ILCS 5/13-212(a) (West 2009)). Cunningham , 154 Ill. 2d at 405, 609 N.E.2d at 325; Bellevi lle , 199 Ill. 2d at 346, 199 I ll. 2d at 347, 770 N.E.2d at 190. The Cunningham court stated that an “occurrence,” a s distinguished from a mere “act or omission,” could be construe d to refer to a continuing course of ne gligent conduct. Cunningham , 154 Ill. 2d at 405, 609 N.E.2d at 325. By c ontrast, the Belleville court found that no comparable “occurre nce” language

existed in the Act to mandate a similar result. Bellevi lle , 199 Ill. 2d at 347, 770 N.E.2d at 191; see 815 IL CS 710/14 (West 2000) (“actions arising out of any provision of this Act shall be commenced within 4 years next after the cause of action accrues”)

. Likewise, the statute of repose for legal malpractice does not conta in any ref erence to an “occurrence” occ asioning a lawsuit; it merely provides that an action for legal malpractice “may not be commenced in any event more than 6 y

ears after the date on which the act or omission

occurr ed.” (E mphasis a dded.) 7 35 IL

CS 5/13-214 .3 (West 20 09). The refore , it is arg

uable under the reasoning of Belleville that, notwi thst andin g Cunningham ’s acceptance of the continuous course of negligent trea tment doctrine in the realm of medical malpractice, there is no parallel continuous course of neglige nt representation doctrine in the realm of leg al malpractice. Nevertheless, we need not decide this issue, beca use even if the continuous course of neglig ent repr

esentat ion doctr ine were to exist, it wo

uld not be a

pplicabl e under t

he fact s of this particular case. The neg ligence described in Cunningham qualifie s as a con tinuous co

urse because it is “cumulative” ( Cunningham , 154 Ill. 2d at 405, 609 N.E.2d at 325): that is, each negligent treatment adds to the harm suff ered by pla

intiff, independently worse ning the injury. See Turner v. Nama , 294 Ill. App. 3d 19, 30, 689 N.E.2d 303, 311 (1997) ( Cunningham doctrineNo. 08-2311

-15-

applies to “the aggreg ate injury ca used by the compounding effects of an ongoing c ourse of conti nuous neglige nt med ical t reatm ent fo r a spec ific c ondi tion ”), cit ing Cunningham , 154 Ill. 2d at 405, 609 N.E.2d at 325. To quote our supreme court on the matter: “A contin uing viol ation or tort is occa sioned by continuin

g unlaw ful acts a

nd conduct, not by continua l ill effe cts from a

n initial vi olation. [Cit

ations.] Th

us, wher e there is a single overt act from which subsequent damag es may flow, the statute be gins to run on the date the defe ndant inva

ded the pl aintiff’ s interes t and infli cted inju ry , and this i s so despite the continuing nature of the injury .” Feltmeier v. Feltmeier , 207 Ill. 2d 263, 278- 79, 798 N.E.2d 75, 85 (2003). Although Feltmeie

r involved application of the continuing violation rule to a claim of intentional infliction of emotional distre ss, its expla nation of what a c ontinuing

violation e

ntails is sti ll relevant here, since the court was spe aking of continuing violations genera lly and, in fact, cited Cunningham as another example of the continuing violation rule in practice. Feltmeier , 207 I ll. 2d at 279-80, 798 N.E.2d at 86. In the present case , following the explanations in Turner and Feltmeier , we find that the injury alleg ed by Mauer

is not cumulative or aggreg ate in nature, so as to trigger a pplication of the continuing violation doctrine. Rather, the harm to Mauer’s intere sts was done once the judgment of dissolution incorporating the allegedly defective Agreement wa s entered, and all the subsequent events alleged by Mauer, including the failure of his set-off de fense in the conversion suit brought by his ex-wife, ca n be traced to the entry

of that judgment. The actions of Mauer’s counsel subsequent to that judgment did not exacerbate his injury in the same way tha

t, forNo. 08-2311

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instance , repea

ted admin istration of the wr ong med icine ca n exacer bate a pa tient’s ill health wi th each treatment (see Cunningham , 154 Ill. 2d at 405, 609 N.E.2d at 325). Accor d Fricka v. Bauer , 309 Ill. App. 3d 82, 84, 722 N.E.2d 718, 720 (1999) (period of r epose for legal malpractice actions is not tolled by the attorney’s “ continuing duty to corr ect any de fect or omission related to the work product” after the work produc t is complete). Serafin v . Seith , 284 Ill. App. 3d 577, 586, 672 N.E.2d 302, 309 (1996), deals with a similar situation in which the court rejected plaintiff’s continuous course of negligent representation theory . The facts of Serafin are as follows: In 1986, plaintiff and two othe r individuals formed a corporation with the assistance of the defe ndant law firm. Serafin , 284 I ll. App. 3d at 579, 672 N.E.2d at 305. Plaintiff owned 30% of the corporation’s share s, and the two other individuals together owned the remaining 70%

. Serafin , 284 Ill. App. 3d at 580, 672 N.E.2d at 305. In 1991, one of the other individuals proposed that the articles of incorporation be amended to eliminate shareholders’ pree mptive rights to acquire unissued shares of the corporation, and plaintiff signed documents approving the change. Serafin , 284 Ill. App. 3d at 581, 672 N.E.2d at 306. The two individuals then proceeded to issue a flood of new shar es which the y ke pt for the mselves, diluting

plaintiff ’s ownership inter

est in the c ompany

to virtual ly nothing. Serafin , 284 Ill. App. 3d at 582, 672 N.E.2d at 306. Plaintiff brought suit ag ainst the two individ

uals, and in 1993, he

amended his compla

int to add a

legal malprac tice cla

im agai nst the defendant law firm. Serafin , 284 Ill. App. 3d at 579, 672 N.E.2d at 305. At issue in Serafin was the o perativ e date f

or the sta tute of re pose with r

egard to plain tiff’ s legal malpr actic e clai m. Ci ting Cunningham , plaintiff contended that the defendantNo. 08-2311

-17-

law firm engaged in a c ontinuous course of negligent repre sentation from the founding of the company in 1986 to the time that plaintiff ag reed to modify the a

rticles of incorporation in 1991, since the defendant law firm had a continuing duty to warn him of the dang ers of such a change. Serafin , 284 I ll. App. 3d

at 586, 67 2 N.E.2d a

t 309. Thus , plaintif

f argu ed, the st atute of repose would not begin to run on his claim until 1991. Serafin , 284 Ill. App. 3d at 586, 672 N.E.2d at 309. The court rejected this argument, instead f inding that the period of repose bega n in 1986, thus rendering plaintiff’s claim time-barred. Serafin , 284 Ill. App. 3d at 586, 672 N.E.2d at 309. In doing so, the court did not explicitly rule upon whether the continuous course of negligent representation doctrine could be recog nized in Illinois. Serafin , 284 Ill. App. 3d at 586, 672 N.E.2d at 309. Instead, the cour t reasoned that plaintiff’s claim was entirely predicated upon the firm’s failure to inform him in 1986, when the articles of incorporation wer e being drafted, that his preemptive rights could later be eliminated by the majority shareholde

rs. Serafin , 284 I ll. App. 3d at 586, 672 N.E.2d at 309. This was the case because, unde r Illinois law, an affirmative vote of two-thirds of a corporation’s shares was suff icient to eliminate preemptive rights. Serafin , 284 Ill. App. 3d at 586, 672 N.E.2d at 309, citing 805 I LCS 5/10.20(c) (West 1992). Consequently, once the a

rticles of incorporation had been drawn up with plaintiff as a 30% shareho lder, he

was powe

rless to pr event the other two

individua

ls from el iminating

his preemptive rights, regardle ss of any war nings the defendant law firm might have g iven him. Serafin , 284 Ill. App. 3d at 586, 672 N.E.2d at 309. That is, plaintiff had not actua lly allege d a continuous course of negligent conduct toward him but rather, to use the words of the Feltmeier court, a “single overt act from which subse quent damages may flow” ( Feltmeier , 207 Ill. 2d atNo. 08-2311

-18-

279, 798 N.E.2d at 85). In the same wa y, the alleg ed damage to Mauer’s monetary interests was alread y c omplete once the A

greement was in

corpora ted into the

judgmen t of dissolu

tion, so under Serafin and Feltmeier , the statute of repose will not be tolled by events occurring after that judgmen t. The case of Hester v. Diaz , 346 I ll. App. 3d 550, 805 N .E.2d 255 (2004), is a lso instructive in this regard. The Hester plaintiff retained defendants to represent he r in connection with a workers’ compensation claim. Hester , 346 Ill. App. 3d at 551, 805 N.E.2d at 257. On October 31, 1994, her case

was call ed for he aring, but no one appear ed on her behalf, so the ca se was dismissed for want of prosecution. Hester , 346 Ill. App. 3d at 551, 805 N.E.2d at 257. Defendants later filed a motion to reinstate the case on F ebruary 2, 2005, and the case was continued to December 3, 1996. Hester , 346 Ill. App. 3d at 552, 805 N.E.2d at 257. However , defendants failed to appear on her be half on that date as well. Hester , 346 Ill. App. 3d at 552, 805 N.E.2d at 258. Despite t he fact that def endants’ allege d neglig ence wi th rega rd to plain

tiff’s c laim continued beyond the initial dismissal of her cla im on October 31, 1994, the court found that the statute of repose began to run from the da te of that initial dismissal. Hester , 346 Ill. App. 3d at 555, 805 N .E.2d at 2 60. The c ourt expla ined: “We reach this determination because of the fina lity of the dismissal. Malpractice occurred at that time when the case wa s allowed to be dismissed for want of prosecution. While ther

e was ca se activity b oth within a nd without t

he worke rs’ comp ensation

file after that date, that activity does not change the status of the case, whic h was ‘dismissed.’No. 08-2311

-19-

*** We cannot conclude that the failure to appear a t the December 3, 1996, setting was the relevant act or omission. As of that date, the case had be en dismissed. There were no guara ntees re lative to r

einstate ment on tha

t date. We

will not spe culate that simply because reinstat ement is f reely allowed i n the wor kers’ c ompensat

ion arena, this particular case would have enjoy ed that treatment. No one can know that for cer tain.” Hester , 346 Ill. App. 3d at 554-55, 805 N.E.2d at 260. Thus, the court found that plaintiff’s lawsuit, filed on March 1, 2002, was not timely under the statute of repose. Hester , 346 Ill. App. 3d at 555, 805 N.E.2d at 260. (We note at this juncture that there was also an issue of equitable estoppel in Hester , whic h Mau er ra

ises i n his brief

. We shall discuss this issue when we consider Mauer’s equitable estoppel arg ument.) Likewise, in the present ca se, malpractice allegedly occurred at the time when the judgment of dissolution incorporating the allegedly defective Agreement wa s entered on July 18, 2001. While there was activity on the pa rt of defendants after that date, this activity does not change the fact that a fina l judgment had been rendered in plaintiff’s c ase, and there were no facts allege d that would tend t o esta blis h that defend ants’ actio ns com pound ed the damage caused by tha

t final judgment (see Turner , 294 Ill. App. 3d at 30, 689 N.E.2d at 311). Accordingly , under Hester as well a s Serafin , the period of repose for defendants’ a lleged negligence in drawing

up the divorce decree beg an to run when judgment was entered in the underlying

divorce case on July 18, 2001. Despite t hese ca ses, Maue

r never theless a rgues t hat the be ginning

of the pe riod of r epose should be delayed unde

r Trogi , which he cites for the proposition that the statute of repose doesNo. 08-2311

-20-

not beg in to run un

til the dat e of the “ ‘last act of repr

esentat ion upon wh

ich the ma

lpractic e is founded.’ ” Trogi , 362 Ill . App. 3d at 9 6, 839 N.E.2 d at 55 6, quo ting O’Brienv. Scov il , 332 I ll. App. 3d 1088, 1089, 774 N.E.2d 466, 467 (2002). He argues that the r elevant “last act of representation” in his case was the defe ndants’ withdrawal of his 2-1401 petition on February 16, 2005. However, analysis of Trogi does not support Mauer’s interpretation. The alleged malpractice in Trogi occurred in a transactional context. Plaintiff retained the defendant law firm to represent him in purchasing real property

. Trogi , 362 Ill. App. 3d at 94, 839 N.E.2d at 554. Defendant prepared a deed for the property , and once it was executed, defendant recorded the deed a nd mailed it to plaintiff, advising him to keep it in a safe place. Trogi , 362 Ill. App. 3d at 94, 839 N.E.2d at 554. Plaintiff subsequently brought an action for legal malpractice, claiming that de fendant had recorded the deed in the w rong county , thus causing him to lose his interest in the property

. Trogi , 362 Ill. App. 3d at 94-95, 839 N.E.2d at 554. The c ourt foun

d that, und

er these facts, the period

of repos e would no t begin u ntil the da

te that defendant sent the improperly recorded deed to plaintiff, since delivery of the final work product to the client was the relevant “last act of re presentation” involved in the malpractice. Trogi , 362 Ill. App. 3d at 96, 98, 839 N.E.2d at 556-57. However, the Trogi decision did not purport to be at odds with the decision in Hester ; indeed, the court is at pains to show that the two decisions are compatible. The cour t draws an analogy between the delivery

of a final work product to a client in a transactional conte xt (which is at issue in Trogi ) with the render ing of ju dgment i n a litiga tion conte xt (which is

at issue in Hester and in the present case). Trogi , 362 Ill. App. 3d at 98, 839 N.E.2d at 558. Each of the se,No. 08-2311

-21-

according to the Trogi court, may be c onsidered a “final event” trigg ering the start of the period of repose. Trogi , 362 Ill. App. 3d at 98, 839 N.E.2d at 558. This is true notwithstanding the attorney’s ongoing duty to corr ect any ma

lpractice committed. See Fricka , 309 Ill. App. 3d at 84, 722 N.E.2d at 720 (ongoing duty to correct does not delay beginning of period of repose)

. The Trogi court explained that in both cases, having such a definite cutoff se rves the purpose of the statute of repose, namely , terminating the possibility of liability after a defined period of time. Trogi , 362 Ill. App. 3d at 98, 839 N.E.2d at 558; see Ferguson , 202 Ill. 2d at 311, 780 N.E.2d at 664 (the purpose and effect of statutes of repose “ ‘is to establish an absolute limit for bringi ng sui t’ ”), quot ing Franklin v. Cernovich , 287 Ill. App. 3d 776, 779, 679 N.E.2d 98, 100 (1997). Thus, the Trogi decision does not detract from the conclusion we have re ached above under Hester and Serafin , but rath er suppor ts it. Mauer next contends that, even if the period of repose would not be e xtended by the Cunningham doctrine and recovery for defendants’ original negligent conduct is therefore timebarred, the failure of defenda nts’ attempts to remediate that original neglige nt conduct by pursuing the 2-1401 petition should provide an independent basis for rec overy to which the statute of repose should sepa

rately apply . This con

tention is i

nconsiste nt with the

holding i n Hester , which relates the beginning of the pe riod of repose to the initial malpractice which gave rise to the plaintiff ’s loss and creat

ed the sub sequent need for remedia tion. Howe

ver, eve n if negligence in the remedia tion process could be separated from defe ndants’ original act of negligence, such sepa

rate recovery

would not be available to the plaintiff in this case, since Mauer failed to plead those facts which would be ne cessary to enable him to pursue a claim forNo. 08-2311

-22-

such negligence as a

n independent cause of action. Specifically , he did not plead that the defendants’ negligenc e with respect to the filing and ultimate withdrawal of the 2-1401 pe tition was the proximate cause of his injury . In other words, Mauer did not plead that, but for such negligence, the 2-1401 petition would have be en successful, which, as discussed below, must be pled. To prevail in a negligence claim, plaintiff must not only show that defendant c ommitted a breach of duty and that p laintiff

suffer ed damag es, but al so that de fendant ’s action proximatel

y caused those damages. Serafin , 284 I ll. App. 3d at 586-87 , 672 N.E. 2d at 309. In other word s, plaintiff must show that, but for the negligence of de fendant, he would not have suffered the claimed loss. Serafin , 284 I ll. App. 3d at 587, 67 2 N.E.2d a

t 309; Ignarski v. Norbut , 271 I ll. App. 3d 522, 525-26, 648 N.E.2d 285, 288 (1995). Thus, in a legal malpractice claim involving failed litigation, plaintiff must essentially prove a “case within a case,” bea ring the burden of demonstrating that he would have been succe ssful in the underlying suit were it not for defendant’s negligenc e. Orzel v. Szewczyk , 391 Ill. App. 3d 283, 290, 908 N.E.2d 569, 575 (2009); First Nat’l Bank of LaGrange v. Lowrey , 375 Ill. App. 3d 181, 200, 872 N.E.2d 447, 484-85 (2 007); Ignarski , 271 Ill. App. 3d at 525-26, 648 N.E.2d at 288. A causa l link between the alleged neglige

nce and the loss of the underly ing suit will not be presumed. LaGrange , 375 Ill. A pp. 3d at 2 00, 872 N. E.2d at 48 5; Ignarski , 217 I ll. App. 3d at 528. Whe

re plain tiff fai ls to allege facts that would establish success in the under lying suit, he has fa

iled to plead a cause of action. Ignarski , 271 I ll. App. 3d at 528, 64 8 N.E.2d a

t 290. This i s true ev en wher e it is conceded that defendant committed neglig ence in his handling of the underly ing lawsuit. SeeNo. 08-2311

-23-

Sheppard v. Krol , 218 Ill. App. 3d 254, 258, 578 N.E.2d 212, 215 (1991) (leg al malpractice claim properly dismissed wher e plaintiff failed to allege facts in his complaint demonstrating that he would have pre

vailed in the under

lyin g suit); Claire Associates v. Pontikes , 151 Ill. App. 3d 116, 123, 502 N.E.2d 1186, 1191 (1986) (legal malpractice c laim properly dismissed for fa ilure to state a cause of action where plaintiffs alleged insufficient facts to demonstrate that underly ing suit was me

ritorious , notwithst

anding allega tions of ne glige

nce on the

part of d efenda nts due to their failure to properly

prosecute that suit and an unsupported assertion that the suit was meritorious). That ele ment is lac

king in the prese

nt case. Mauer f

ails to spe cifical ly a

llege i n his complaint that if defendants had filed a petition to correct the judg ment in a timely manner and had not later withdrawn the petition, the court would have gr anted plaintiff his desired modifications to the divorce decree and the damag es which he now claims would therefore have been averted. According ly, Mauer ha s not pled that any of def endants’ actions subsequent to the June 18, 2001, divorce decree were a proximate cause of his injury, and he ca

nnot now claim that such acts form an independent basis for recove ry on a theor

y of leg al malpractice. See, e.g. , Ignarski , 271 I ll. App. 3d at 528, 64 8 N.E.2d a

t 290; Sheppard

, 218 Ill. App. 3d at 259-60, 578 N.E.2d a t 216; Claire Associates , 151 Ill. App. 3d at 123, 502 N.E.2d at 1191. The Serafin decision is pertinent here as well. The Serafin court rejected the idea that the defendant law firm’s 1991 conduct could form the basis of a n independent cause of action, because it found that even if the defendant law firm had breached its duty to plaintiff after 1986, plaintiff could not show that such breach of duty was a proximate cause of his injury

. Serafin ,No. 08-2311

-24-

284 Ill. App. 3d at 586, 672 N.E.2d at 309. Thus, insofar as plaintiff’ s complaint was premised upon the d

efenda nt law fir m’s 1991 c onduct, it

was prop erly

dismissed f

or failur e to state a cause of action. Serafin , 284 Ill. App. 3d at 586, 672 N.E.2d at 309. The same is true of the instant case wit h rega rd to def endants’ actions a

fter the entry of the div orce jud

gment. B. Fraudulent Concealment and Equitable Estoppel Mauer next contends that defendants lulled him into inaction by f alsely assuring

him that his interests would be protected despite the entry of the defective Agree

ment. Therefore, he argues, the statute of repose should be tolled in acc ordance with the fraudulent concealment statute ( 735 I LCS 5/1 3-215 (We st 2009))and the do ctrine o f equita ble estop pel. Def endants respond that, regardless of whether any fra udulent concealment occurred, Mauer learned or should have learned of their allege d negligence when Frances prevailed in the conversion suit on October 11, 2005, a full y ear and eight months before the statute of r epose was set to expire. Since Mauer had ample time to file an action within the statutory time period, they ar

gue that he is not entitled to any tolling of the statute of re pose. The fra udulent c oncealment statut e, conta ined in se ction 13- 215 of the Code of Civ

il Procedu re, prov ides: “If a person liable

to an action fraudulently conceals the cause of such action fr om the knowledg e of the p erson en titled the reto, the action ma

y be commenc ed at any

time within 5 years af

ter the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards.” 735 IL CS 5/13-215 (West 2009). See DeLuna , 223 Ill. 2d at 74, 857 N.E.2d at 244 (holding that under section 13-215, aNo. 08-2311

-25-

defendant’s fraudulent concealment tolls the statute of re pose for legal malpractice a ctions); Rajcan v. Donald Garvey & Associates, Ltd. , 347 Ill. App. 3d 403, 408, 807 N.E.2d 725, 729 (2004) (plaintiffs’ allegations of fraudulent c oncealment were sufficient to avoid 2-619 dismissal under the statute of repose). The common-law doctrine of equitable estoppel, as applied in the c ontext of the statute of repose, parallels the fraudulent conce alment statute. Turner , 294 Ill. App. 3d at 26, 689 N.E.2d at 308. Un

der this d octrine , a party

may estop ano ther person from a sserting materia l facts where: “(1) the other person misrepresented or c oncealed material facts; (2) the other pe rson knew at the time he or she mad e the re present ations tha t they were un true; (3) the part y claiming estoppel did not know that the representations were untrue when they we

re made and when that party decided to act, or not, upon the representations; (4) the other person intended or reasonably expected that the party c laiming estoppel would determine whether to act, or not, based upon the represe ntations; (5) the party c laiming estoppel reasonably

relied upon the representations in good faith to his or her de triment; and (6) the party cla

iming estoppel would be prejudiced by his or her reliance on the representations if the other person is permitted to deny the truth thereof.” DeLuna , 223 Ill. 2d at 82-83, 857 N.E.2d at 249. Howeve r, court s have de clined to apply fraudul ent conc ealment a nd equita ble estop pel to toll the statute of repose in cases where “the cla imant discovers the fraudulent concealment, or should have discovered it through ordinary diligence, and a reasonable time re mains within theNo. 08-2311

-26-

remaining limitations period.” Smith v. Cook County Hospital , 164 Ill. App. 3d 857, 862, 518 N.E.2d 336, 340 (1987); see Serafin , 284 Ill. App. 3d at 589, 672 N.E.2d at 311 (“doctrine of equitabl e estoppe l will not ap ply to a case if defe ndant’s c onduct te

rminated within amp le time to allow the pl ainti ff to s till avail hims elf of any legal ri ghts h e may have h ad”), c itin g Cramsey v. Knoblock , 191 Ill. App. 3d 756, 766, 547 N.E.2d 1358, 1365 (1989) (no equitable e stoppel where “plaintiffs had an opportunity to file a n action within the limitation period, but did not do so – for

no reason that ca

n be attr ibuted to d

efenda nts’ state ments or c onduct”) ; Turner , 294 Ill. App. 3d at 28, 689 N.E.2d a

t 310 (fr audulent concea lment exce

ption did no t apply

where p laintiff

should have discovered the alleged c oncealment through ordinary diligence eight months before the repose period elapsed); accord Witt, 269 I ll. App. 3d at 544, 64 6 N.E.2d a

t 25 (plain

tiffs cou ld not avail themselve s of fra

udulent c oncealment doctr ine wher e, notwith standing

the possib ility of fraudulent concealment, plaintiffs had actua l knowledge of their cause of ac tion within the statutory timeframe) . Thus, where a plaintiff has been put on inquiry as to a defendant’s fraudulent concealment within a reasonable time be fore the ending of the statute of repose , such that he should have

discover ed the fr aud throu gh ordin ary diligen ce, he c annot lat

er use fraudulent concealment as a shield in the event that he doe s not file suit within the statutory period. Smith , 164 Ill . App. 3d at 8 62, 51 8 N.E. 2d at 3 40, ci ting Real v. Ki m , 112 Ill. App. 3d 427, 435-36, 445 N.E.2d 783, 789 (1983) (once decedent wa s diagnosed with brain cancer, he was put on inquiry that the defe ndant health care providers might have misdiag nosed him three years e arlier, and as a result “he then had the bur den of investigating whether he ha d a cause of action for medical malpractice”); see Rajcan , 347 Ill. App. 3d at 409, 807 N.E.2d at 729 (notingNo. 08-2311

-27-

that, in le gal mal

practic e case, it was ar

guable that def endant c ounsel’s

“repea ted failu res to honor the requests for the document [at issue in the lawsuit] should have put plaintiffs on inquiry as to fraudulent concealment” approximately a yea r before the running of the statute of r epose, thus defeating plaintiff’s fraudulent conce alment argument). In this case, judgment wa s entered against Mauer in the conve rsion suit on October 11, 2005, over a ye ar and eight months before the statute of re pose was set to expire on June 18, 2007. In entering judg

ment against Mauer, the court rejec ted Mauer’s argument that he was entitled t o keep the

procee ds from the

liquidation of the We dgewoo d Nursing Pavilion a s a setoff against his ex-wife’s unpaid obligations. Thus, at that point, Mauer knew or should have known that the Agreement was not protecting his interests in the way that he de sired it to. At the very least, he was put on

inquiry that his co

unsel’s r epeate d reassu

rances that his int

erests would be prote cted we

re false . Thus, ev en assumi ng for t he sake o f argu

ment that t

he defe ndants fraudulently c oncealed the cause of action from him, such conc ealment could not have been maintained in the face of ordinary diligence once judgment was re ndered against Mauer in the

convers ion suit. I

ndeed, M auer ad

mits as much in his re sponse to d efenda nts’ initia l motions to dismiss, in w

hich he st ates: “It was not unti l October

11, 2005, w

hen plain tiff was unable to success fully

prosecu te his set-of f defen se based

on the MSA i

t was rea lized that t

he failu re to cor rect the error in the MSA was fatal to his defense in the action filed by his wife.” Mauer ha d over a y ear and eight months from t

his admitte d realiza

tion to file

his action

within the period of repose, which certainly qualifies as ample time. See, e.g. , Butler v. Mayer, BrownNo. 08-2311

-28-

& Platt , 301 Ill. App. 3d 919, 926, 704 N.E.2d 740, 745 (1998) (“We have held that as little as six months remaining in a statute of limitations period is ‘ample time’ for a plaintiff to bring suit ”), cit ing Smith , 164 I ll. App. 3d at 863, 51 8 N.E.2d a

t 340; Turner , 294 Ill. App. 3d at 28, 689 N.E.2 d at 310 (e ight mont hs conside

red ampl e time to br

ing suit) ; Sabath v. Mansfield , 60 Ill. A pp. 3d 1008 , 1015, 377N.E.2d 16 1, 167 (19 78) (sam e); Real , 112 Ill. App. 3d at 435-36, 445 N.E.2d at 789 (fraudulent concealment claim reje cted where decedent was a lerted to the possibility of alleged malpr actice ten months before the running of the pe riod of limitations); Rajcan , 347 Ill. App. 3d at 409, 807 N.E.2d at 729 (being put on inquiry reg arding legal malpractice cla

im one y ear bef ore expir ation of r epose pe riod would

constitute

reasona ble time to bring suit as a matter of law). Yet he did not file his action within the period of r epose. Inste ad, for n

o reason that appe ars in the

record , he waite d for nea rly two y ears af ter his discovery of de fendants’ alleged neg ligence to bring the instant suit, by which time the statute of repose had expired. Consequently , regardless of whether de fendants concealed the cause of action from him, Mauer may not now apply the doctrines of fraudulent concealment and equitable estoppel to toll the statute of repose. Mauer nevertheless argue s that his case is analogous to Hester , 346 Ill. App. 3d at 556, 805 N.E.2d at 261, in which the equitable estoppel doctrine was applied to toll the statute of repose. As discussed earlier, the defenda nt attorneys in Hester failed to appear on plaintiff’s behalf at her workers’ compensation hea ring on October 31, 1994, and her case was dismissed for want of prosecution. Hester , 346 Ill. App. 3d at 551, 805 N.E.2d at 257. The plaintiff furthe r alleged that the defendants failed to inform he r that her case had been dismissed. Hester , 346 I ll.No. 08-2311

-29-

App. 3d at 556, 805 N.E.2d at 260. Instead, for the next seven years, they rea ssured her that her case was proceeding a s it should. Hester , 346 I ll. App. 3d at 556, 80 5 N.E.2d a

t 260. The

y di d not inform her of the truth until December 10, 2001, over a y ear after the statute of repose ha d expired. Hester , 346 I ll. App. 3d at 552, 80 5 N.E.2d a

t 258. The

court fo und that th ese allegations sufficiently

raised the issue of equitable estoppel to preclude dismissal of her untimely-filed claim under the statute of repose. Hester , 346 Ill. App. 3d at 556, 805 N.E.2d at 260. However, Hester is readily distinguishable f rom the case at hand, since the Hester plaintiff alleged that the fraudulent conce alment lasted until well after the statute of repose had expired, while in th e prese

nt case, Mauer ha

d over a y ear and eight months afte

r becomi ng awa re of his counsel’s alleged neglig ence in which to file his claim within the statutory time period. Accordingly , for the foregoing re asons, the judgment of the trial court is affirmed. Affirmed. CAHIL L, P.J., and R.E. GORDON, J., concur.No. 08-2311

-30- REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

(Front Sheet to

be Attached to Each Case) Please use the following form Marshall Mauer, Plaintiff-Appellant,

v. Roger Rubin and Beermann, Swerdlove, Woloshin, Bar ezky, Bec ker, Genin & London, Defend ants-App ellees.

Docket No. COURT Opinion Filed No. 1-08-3211 Appellat e Court of

Illinois First District, SIXTH

Division March 26, 2010 (Give month, day and y

ear)

JUSTICES JUSTICE JOSEPH GORDO

N DEL IVER

ED THE OPI

NIO N OF THE

COURT: Cahill, P.J., and R.E. Gordon, J. , concur. APPEAL from the Circuit Court of Cook County; the Hon___ Judge Presi ding. Lowe r Court an

d Trial Judg e(s) in f

orm indica

ted in mar

gin: Ap pe al fr om th e C ir cu it Co ur t o f C oo k C ou nt y. The Hon. Barbara A. McDonald, Judge Presi ding.

APPELL ANTS: John Doe, o f Chi cago Indicate if attorney represents APPELL

ANTS or APPELLEES and include attorney s of counsel. Indicate the wor d NONE if not represented. APPELLANT : Lawrence Seiwe rt, 33 N. LaSalle Street, Suite 3400, Chicago, I L 60602

For APPEL

LEES, Smith and Smith of Chica go APPELLEES (Rog er Rubin): Mark P. Standa, P.C., 582 N. Oakwood Ave., Suite 201, Lake

Forest, IL 60045 APPELLEES (B eermann, Swerdlove, Woloshin, Barezky , Becker, Genin & London): Stephen R. Swofford, Joshua G. Vincent, and Kimberly A. Jansen, Hinshaw & Culbertson LL P, 222 North LaSalle St., Suite 300, Chicago, Illinois 60601No. 08-2311

-31- Add attorneys for

3rd party appe llants and/or appelle es.