2022 IL 126935 

IN THE 

SUPREME COURT 

OF 

THE STATE OF ILLINOIS 

(Docket No. 126935) 

SUBURBAN REAL ESTATE SERVICES, INC., et al., Appellees, v. 

WILLIAM ROGER CARLSON JR. et al., Appellants. 

Opinion filed January 21, 2022. 

JUSTICE THEIS delivered the judgment of the court, with opinion. 

Chief Justice Anne M. Burke and Justices Garman, Neville, Michael J. Burke, 

Overstreet, and Carter concurred in the judgment and opinion. 

OPINION 

¶ 1 In this case, we consider whether a legal malpractice claim was barred by the 

two-year statute of limitations in section 13-214.3(b) of the Code of Civil Procedure 

(735 ILCS 5/13-214.3(b) (West 2016)). The Cook County circuit court found that 

the limitations period on the claim had expired because plaintiffs’ payment of 

attorney fees to new counsel constituted an injury triggering the statute. The 
 

 

 

appellate court reversed, finding that no realized injury that would trigger the 

limitations period existed until there was an adverse judgment in the underlying 

action. 2020 IL App (1st) 191953. For the following reasons, we affirm the 

appellate court’s judgment. 

¶ 2 BACKGROUND 

¶ 3 Bryan Barus is the principal and sole owner of Suburban Real Estate Services, 

Inc. (Suburban), a commercial real estate management company (collectively 

plaintiffs). In February 2006, Suburban and another company, ROC, owned by 

Michael Siurek, formed a new company named ROC/Suburban LLC 

(ROC/Suburban). The new company acted as a vendor to Suburban, supplying 

commercial property management services. Under the operating agreement, 

Suburban and ROC each owned a 50% interest in ROC/Suburban. 

¶ 4 In May 2010, Barus retained William Roger Carlson Jr. and his law firm 

Carlson Partners, Ltd., (collectively defendants) for legal advice in unwinding 

Suburban’s relationship with ROC/Suburban. After obtaining defendants’ 

assistance, Barus sent a “break-up” letter to Siurek, notifying him of the steps he 

planned to take to terminate Suburban’s relationship with ROC/Suburban. 

¶ 5 In August 2010, ROC sued Suburban, alleging that the actions taken by 

Suburban, by and through Barus, pursuant to the “break-up” letter constituted a 

breach of fiduciary duty owed to ROC/Suburban. In October 2010, Barus retained 

the law firm of Gaspero & Gaspero, Attorneys at Law, P.C. (Gaspero Law Firm), 

to defend Suburban in the ROC litigation. 

¶ 6 In June 2015, after a bench trial, the trial court entered judgment for ROC. The 

court found that Suburban, through Barus, had breached its fiduciary duties and 

ordered it to pay ROC 50% of the fair value of the assets that Barus had improperly 

transferred out of ROC/Suburban. The court awarded damages against Suburban in 

the amount of $336,652.26. 

¶ 7 Thereafter, in May 2016, plaintiffs filed a legal malpractice action against 

defendants. In their first amended complaint, they alleged that defendants were 

negligent in that they failed to properly advise plaintiffs of the proper steps to obtain 

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a judicial dissolution of ROC/Suburban, recommended and/or approved the selfhelp actions that resulted in plaintiffs breaching fiduciary duties owed to 

ROC/Suburban, and failed to advise them of the consequences of these actions. 

They further alleged that, as a direct and proximate cause of defendants’ 

negligence, they suffered damages in excess of $600,000. 

¶ 8 Defendants moved for summary judgment pursuant to section 2-1005 of the 

Code of Civil Procedure (735 ILCS 5/2-1005 (West 2018)), asserting that the legal 

malpractice claim was barred by the two-year statute of limitations (735 ILCS 5/13-

214.3(b) (West 2018)). They argued that the plaintiffs sustained an injury resulting 

from defendants’ alleged negligence beginning in November 2010, when they 

retained new counsel and began paying them attorney fees. Defendants argued 

plaintiffs knew they were injured in April 2013 at the latest, when the trial judge in 

the underlying action told plaintiffs’ new counsel that a malpractice action was a 

certainty and when plaintiffs sought advice about whether a malpractice claim 

should be filed. 

¶ 9 In support, defendants attached various exhibits, including the deposition 

testimony of both Carmen and Lisa Gaspero of the Gaspero Law Firm. According 

to their testimony, at a pretrial settlement conference in April 2013, the trial judge 

made it clear to Carmen and Lisa Gaspero that he would likely find Barus liable for 

breach of fiduciary duty if the ROC lawsuit went to trial. The court also voiced its 

belief that the attorney representing Barus in June 2010 “one hundred percent” 

committed malpractice. After the pretrial conference, the Gasperos consulted with 

a lawyer specializing in legal malpractice claims to evaluate a potential claim 

against defendants. That lawyer advised them to wait until the ROC litigation was 

resolved to file a claim. 

¶ 10 Based on this evidence, defendants argued that plaintiffs knew or should have 

known of their injury and that it was caused by the alleged negligence of defendants 

no later than April 2013. Accordingly, defendants maintained that this action, 

commenced in May 2016, was barred because it was brought more than two years 

after the statute of limitations began to run. 

¶ 11 In response, plaintiffs argued that, if Suburban had prevailed in the underlying 

lawsuit, defendants’ advice could not have caused any pecuniary injury. Thus, 

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plaintiffs maintained that the cause of action did not accrue until June 2015, when 

a judgment was entered in the underlying litigation in favor of ROC. 

¶ 12 The trial court granted summary judgment in favor of defendants, finding that 

plaintiffs had notice of the malpractice claim as early as 2010, when ROC filed the 

underlying lawsuit, and no later than April 2013, when the trial judge told counsel 

that plaintiffs’ malpractice action was a certainty and when counsel sought advice 

as to when a malpractice action should be filed. 

¶ 13 The appellate court reversed and remanded, finding that plaintiffs timely filed 

their legal malpractice claim. 2020 IL App (1st) 191953, ¶¶ 34, 36. The court 

reasoned that plaintiffs did not suffer a realized injury until the trial court found a 

breach of fiduciary duty and entered a judgment against them in June 2015. Id. ¶ 26. 

The court further rejected defendants’ theory that plaintiffs’ payment of attorney 

fees purportedly related to defendants’ negligent advice constituted an injury, 

triggering the statute of limitations. Id. ¶¶ 27-32. We subsequently allowed 

defendants’ petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct. 1, 2020). 

Additionally, we allowed the Attorneys’ Liability Assurance Society Ltd. to file an 

amicus curiae brief in support of defendants’ position. Ill. S. Ct. R. 345 (eff. Sept. 

20, 2010). 

¶ 14 ANALYSIS 

¶ 15 The issue before this court is whether summary judgment in favor of defendants 

was appropriate because plaintiffs’ legal malpractice claim was time-barred under 

section 13-214.3(b) of the Code of Civil Procedure (735 ILCS 5/13-214.3(b) (West 

2016)). Summary judgment is proper when “the pleadings, depositions, and 

admissions on file, together with the affidavits, if any, show that there is no genuine 

issue as to any material fact and that the moving party is entitled to a judgment as 

a matter of law.” 735 ILCS 5/2-1005(c) (West 2018). Summary judgment can aid 

in the expeditious disposition of a lawsuit, but it is a drastic measure and should be 

allowed only “when the right of the moving party is clear and free from doubt.” 

Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Our standard of review is de novo. 

Cohen v. Chicago Park District, 2017 IL 121800, ¶ 17. 

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¶ 16 Section 13-214.3(b) provides that a claim for legal malpractice accrues when 

the client “knew or reasonably should have known of the injury for which damages 

are sought.” (735 ILCS 5/13-214.3(b) (West 2018)). Thus, to discern when a claim 

accrues, we identify the injury and then determine when the injury was discovered 

or should have been discovered. Id. Much of the parties’ disagreement in this case 

stems from a misunderstanding of the nature of the injury in a legal malpractice 

claim. Accordingly, we begin our analysis by explaining what is meant by “injury” 

in the context of a legal malpractice claim. 

¶ 17 The “injury” in a legal malpractice claim is not a personal injury or the 

attorney’s negligent act. “Rather, it is a pecuniary injury to an intangible property 

interest caused by the lawyer’s negligent act or omission.” Northern Illinois 

Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 306 

(2005). Thus, in a legal malpractice action, a client is not considered “injured” 

unless and until he has suffered a loss for which monetary damages may be sought. 

Id. No action can be sustained against the attorney unless that negligence 

proximately caused damage to the client. Id. at 306-07. 

¶ 18 “The existence of actual damages is therefore essential to a viable cause of 

action for legal malpractice.” Id. at 307. “Unless the client can demonstrate that he 

has sustained a monetary loss as the result of some negligent act on the lawyer’s 

part, his cause of action cannot succeed.” Id. Demonstrating the existence of 

damages requires “more than supposition or conjecture,” and where damages are 

speculative, no cause of action for malpractice exists. Id. 

¶ 19 This court has often applied this legal framework to ascertain when a cause of 

action accrues in the typical case, where an attorney’s negligence allegedly 

occurred during the attorney’s representation of a client in underlying litigation. As 

this court has explained, no injury exists, and therefore no actionable claim arises, 

unless and until the attorney’s negligence results in the loss of the underlying cause 

of action. See, e.g., Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 226 

(2006). In this type of legal malpractice claim, commonly referred to as a “ ‘case 

within a case,’ ” the allegation is that the client suffered a monetary loss and but for 

the attorney’s negligence the client would have recovered in the underlying 

litigation. Id. Thus, the injury does not accrue, and the statute of limitations does 

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not begin to run, until a judgment or settlement or dismissal of the underlying 

action. Id. 

¶ 20 In some cases, as in this case, the alleged negligence relates to legal advice 

given by a transactional attorney during his representation of a client. After 

allegedly following counsel’s legal advice, the client is subsequently sued by a 

party involved in the transaction. Thus, to determine when a legal malpractice claim 

accrued, we must first discern the alleged injury for which damages are sought. 

¶ 21 Here, plaintiffs alleged that defendants were negligent in recommending and/or 

approving the self-help actions taken in unwinding a company. Further, plaintiffs 

alleged defendants’ negligence resulted in a lawsuit being filed against them and 

an adverse finding that plaintiffs breached fiduciary duties owed to that company. 

As a result of the adverse finding, plaintiffs alleged that they suffered a monetary 

loss that but for defendants’ negligence they would not have otherwise owed. 

Accordingly, plaintiffs maintain that the judgment in the underlying litigation gave 

rise to actual damages directly attributable to the negligent advice of counsel. 

Plaintiffs rely on Lucey v. Law Offices of Pretzel & Stouffer, Chartered, 301 Ill. 

App. 3d 349 (1998), and Warnock v. Karm Winand & Patterson, 376 Ill. App. 3d 

364 (2007), in support of their position. 

¶ 22 We find that these cases involve similar circumstances to plaintiffs’ claim and 

support plaintiffs’ position that their claim was timely filed. In Lucey, the plaintiff 

sought legal advice regarding whether he could solicit clients from his current 

employer before resigning to start his own company. Lucey, 301 Ill. App. 3d at 351. 

After following the advice, the plaintiff was sued by the former employer. Id. at 

352. The plaintiff eventually hired other counsel to represent him in that lawsuit. 

While the lawsuit by the former employer was pending, the plaintiff sued the 

defendant law firm for malpractice. Id. 

¶ 23 The appellate court held that the legal malpractice action did not accrue until 

the former employer’s lawsuit against the plaintiff concluded. Id. at 358. Since it 

was possible that the plaintiff could prevail against the former employer, the 

damages were “entirely speculative until a judgment is entered against the former 

client or he is forced to settle.” Id. at 355. Thus, the plaintiff would not sustain any 

“actual” damages unless and until the former employer’s lawsuit was resolved 

adversely to him. Id. at 359. The court also reasoned that requiring a client to bring 

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a provisional malpractice suit would undermine judicial economy and the attorneyclient relationship. Id. at 357. 

¶ 24 Similarly, in Warnock, 376 Ill. App. 3d at 365, the defendant law firm 

represented the plaintiffs in a real estate transaction. The plaintiffs alleged that the 

law firm failed to properly draft certain letter agreements during the sale of their 

property, which ultimately resulted in an adverse judgment in subsequent litigation 

brought by the buyers for unjust enrichment. Id. at 366-67. Specifically, the trial 

court found that the letters drafted by their attorneys rendered the liquidated 

damages clause in their real estate contract unenforceable. Id. at 366. 

¶ 25 The appellate court found that, while the filing of the buyer’s lawsuit may have 

alerted the plaintiffs to the possibility that the letter agreements were incorrectly 

drafted and motivated plaintiffs to hire new counsel, plaintiffs had no actionable 

damages prior to the adverse judgment from the circuit court, which found the letter 

agreements were drafted in contravention of Illinois law. Id. at 371. Accordingly, 

the Warnock court concluded that the statute of limitations did not begin to run until 

the adverse judgment was entered by the court. Id. 

¶ 26 These cases aptly illustrate the rule that “[u]nless the client can demonstrate that 

he has sustained a monetary loss as the result of some negligent act on the lawyer’s 

part, his cause of action cannot succeed.” Northern Illinois Emergency Physicians, 

216 Ill. 2d at 307. It is “the realized injury to the client, not the attorney’s 

misapplication of expertise, [which] marks the point in time for measuring 

compliance with a statute of limitations period.” Hermitage Corp. v. Contractors 

Adjustment Co., 166 Ill. 2d 72, 90 (1995). 

¶ 27 Defendants maintain that plaintiffs’ payment of attorney fees to new counsel 

constituted an injury that triggered the statute of limitations for a legal malpractice 

claim—regardless of any adverse judgment or settlement. At the latest, they argue 

the cause of action accrued in 2013 when they were told by the trial judge in a 

pretrial conference that plaintiffs’ counsel committed malpractice and when 

plaintiffs researched the possibility of filing a malpractice claim. In support, 

defendants rely on cases like Nelson v. Padgitt, 2016 IL App (1st) 160571, 

Construction Systems, Inc. v. FagelHaber, LLC, 2019 IL App (1st) 172430, and 

Zweig v. Miller, 2020 IL App (1st) 191409. 

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¶ 28 These decisions merely stand for the proposition that in some cases, prior to a 

judgment, there may be an actual loss for which the client could seek monetary 

damages attributable to attorney neglect. In each decision, the client suffered a 

monetary loss attributable to the attorney’s neglect, and the client discovered the 

injury when hiring new counsel to mitigate that loss. 

¶ 29 For example, in Nelson, the client hired an attorney to negotiate an employment 

contract. The contract stipulated that the client would lose his salary and 

commission on termination for cause. Nelson, 2016 IL App (1st) 160571, ¶ 15. The 

client was subsequently terminated for cause, resulting in a loss of salary and 

commission under the agreement. Id. ¶ 4. When the client filed suit against his 

employer for breach of contract and fraud, the court granted summary judgment in 

favor of the employer. Id. ¶ 6. Thereafter, the client filed a legal malpractice action 

alleging that the attorney failed to negotiate an employment contract that was in his 

best interest. Id. ¶ 7. 

¶ 30 The appellate court found that the client had been injured when he was fired 

and was told that he was being terminated under the terms of the employment 

agreement. Id. ¶¶ 15-17. As the court explained, “Nelson suffered an economic 

injury on his firing because the agreement also stipulated a loss of salary and 

commission on termination for cause.” Id. ¶ 15. At the latest, he knew when he filed 

the lawsuit against his employer that there was a connection between his financial 

loss and the attorney’s work on the employment agreement. Id. The client knew 

that “his economic loss from the firing stemmed directly from [the employer’s] 

reliance on the employment agreement, which had been negotiated by [the attorney] 

and plainly did not include the economic protections that [the client] allegedly had 

instructed [the attorney] to include.” Id. ¶ 22. He did not need the adverse judgment 

to know that he had been injured by the attorney. Id. 

¶ 31 Similarly, in Construction Systems, Inc., the client sought an attorney’s 

assistance to perfect a mechanic’s lien. 2019 IL App (1st) 172430, ¶ 4. The attorney 

failed to properly perfect the lien and failed to notify the lender who financed the 

construction of the property of its lien. The lender subsequently recorded a 

mortgage lien on the property. Id. Thereafter, the client joined an ongoing lawsuit 

against the owner of the property related to the priority and validity of various liens 

on the property. It hired new counsel to attempt to mitigate the lost priority of its 

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lien and to protect its interest in enforcing it. Id. ¶ 6. The client ultimately settled 

his underlying lien claim for less than the lien amount. He then filed a legal 

malpractice action against his attorney alleging that his failure to properly perfect 

the lien resulted in his lien being subordinate to the lender’s mortgage lien. Id. ¶ 8. 

¶ 32 The appellate court rejected the client’s argument that the injury was unknown 

until the underlying lien litigation was settled. Id. ¶¶ 26-29. Although the client did 

not know the extent of his damages, the court found that the client had suffered a 

loss directly attributable to the attorney’s negligence and that he was aware of the 

loss when the client paid legal fees to new counsel in the litigation he joined to 

mitigate the error in failing to properly perfect the lien. Id. ¶ 29. 

¶ 33 Lastly, in Zweig, 2020 IL App (1st) 191409, ¶ 5, the plaintiff retained a law 

firm to review documents for a business investment. Under the deal, plaintiff would 

make a $2 million capital contribution to the business in exchange for a minority 

ownership interest in it. Id. Subsequently, the plaintiff discovered that, contrary to 

his intentions, the documents he signed allowed for his investment to be distributed 

to the members of the business’s holding company. Id. ¶ 9. The plaintiff hired new 

attorneys and commenced litigation against the holding company to recoup his loss. 

Id. ¶ 13. The plaintiff settled the holding company action and then sued his original 

attorney for malpractice, alleging that the attorney’s negligence was a direct cause 

of the legal expenses he incurred to rectify the damage he sustained when the 

holding company distributed his $2 million. Id. ¶¶ 15, 19. 

¶ 34 The appellate court found that the plaintiff’s cause of action accrued at the latest 

when he filed suit to compel the holding company members to rectify the damage 

he sustained when it distributed his $2 million and to achieve the result he initially 

sought. Id. ¶ 35. The court further found that the outcome of the underlying 

litigation would not have negated the injury caused by defendant’s alleged 

malpractice. Id. 

¶ 35 In each of these cases, there was a pecuniary loss directly attributable to an 

attorney’s neglect prior to any adverse judgment or settlement. In Nelson, there was 

a loss of salary and commission directly attributable to the drafting of the 

employment agreement; in Construction Systems, Inc., there was a loss of lien 

priority directly attributable to the failure to properly perfect the lien; and in Zweig, 

there was a loss of $2 million to the holding company in direct contravention of the 

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plaintiff’s directive. Further, in each case, the clients knew or should have known 

of the loss when they took affirmative action to mitigate the damages incurred by 

the attorneys’ neglect. 

¶ 36 In contrast, this is not a case where, prior to any adverse ruling, plaintiffs knew 

or should have known they had suffered a monetary loss caused by defendants’ 

negligent advice. Merely hiring new counsel to defend against a lawsuit challenging 

the attorney’s legal advice and incurring fees does not, standing alone, trigger a 

cause of action for malpractice. By providing legal representation, an attorney is 

not guaranteeing the client he or she represents that the client will never be sued or 

agreeing to indemnify the client if it is sued. See Jackson Jordan, Inc. v. Leydig, 

Voit & Mayer, 158 Ill. 2d 240, 253 (1994) (holding that “[i]t would be a strange 

rule if every client were required to seek a second legal opinion whenever it found 

itself threatened with a lawsuit”); Lucey, 301 Ill. App. 3d at 356 (rejecting the 

assertion that “subsequently incurred attorney fees will, in every case, 

automatically give rise to a cause of action for legal malpractice against former 

counsel”). 

¶ 37 Although plaintiffs may have been alerted in April 2013 to the trial court’s 

assertion that counsel misadvised them in unwinding the company, the possibility 

of damages would not be actionable unless and until the ROC litigation ended 

adversely to plaintiffs with a finding that plaintiffs breached their fiduciary duties 

to ROC/Suburban. It was not until then that plaintiffs became obligated to pay a 

sum that they otherwise would not have had to pay but for defendants’ alleged 

negligence. Had the action resulted in an outcome favorable to plaintiffs, no cause 

of action for legal malpractice would have accrued. See Northern Illinois 

Emergency Physicians, 216 Ill. 2d at 307 (where damages are speculative, no cause 

of action for malpractice exists). 

¶ 38 CONCLUSION 

¶ 39 In sum, the statute of limitations on plaintiffs’ legal malpractice claim began to 

accrue in June 2015 when the trial court in the underlying case entered judgment 

against plaintiffs. Plaintiffs timely filed their complaint less than a year later in May 

2016. Accordingly, we affirm the judgment of the appellate court, which reversed 

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the trial court’s summary judgment order and remanded for further proceedings. 

¶ 40 Appellate court judgment affirmed. 

¶ 41 Circuit court judgment reversed. 

¶ 42 Cause remanded. 

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