2016 IL App (1st) 153285 

 

 SIXTH DIVISION

 August 12, 2016 

No. 1-15-3285 

TERRA FOUNDATION FOR AMERICAN ART ) Appeal from the 

and TERRA MICHIGAN AVENUE PROPERTY, LLC, ) Circuit Court of 

 ) Cook County. 

Plaintiffs-Appellants, ) 

 ) 

v. ) No. 15 L 001866 

 ) 

DLA PIPER LLP (US), ) Honorable 

 ) Sanjay T. Tailor, 

Defendant-Appellee. ) Judge Presiding. 

 

PRESIDING JUSTICE ROCHFORD delivered the judgment of the court, with opinion. 

 Justices Hoffman and Delort concurred in the judgment and opinion. 

OPINION

¶ 1 Plaintiffs-appellants, Terra Foundation for American Art, a not-for-profit organization, 

and Terra Michigan Avenue Property, LLC (collectively referred to as Terra), brought this action 

alleging malpractice against defendant-appellee, DLA Piper LLP (US) (DLA), a law firm, which 

Terra had retained in connection with the sale of real estate. The circuit court dismissed Terra’s 

complaint finding that it was barred as a matter of law by the applicable statute of repose. 735

ILCS 5/13-214.3(c) (West 2014). We affirm the dismissal of Terra’s action.

¶ 2 I. BACKGROUND

¶ 3 In 2005, Terra agreed to sell three pieces of property located at 664, 666, and 670 North 

Michigan Avenue in Chicago (the property) to entities controlled by Prism Development Co., 

which were later succeeded in interest by NM Project. DLA represented Terra throughout the 

negotiations for the sale, including the final closing in 2013. 
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¶ 4 NM Project intended to build a 40-story mixed use building (the building) on the 

property, which would include retail, office and residential parcels. As part of the sale, Terra was 

to receive an “up front” payment of $17.5 million and, upon closing, ownership of the retail and 

office parcels. NM Project would own the residential parcel.

¶ 5 Because the ultimate square footage of the retail parcel would control its potential rental 

income and its resulting economic value to Terra, NM Project’s cash payment was to be adjusted 

at the closing based on the completed size of the retail parcel (the retail parcel credit). On April 

27, 2005, Terra and NM Project executed a term sheet that included a formula for determining 

the retail parcel credit using baseline estimates for the space of the retail parcel: 8041 square feet 

for the first floor and 10,728 square feet for the second floor. Upon completion of the building, if 

the resulting rentable square footage of the first floor was less than the baseline estimate, NM 

Project would pay Terra $5500 for every square foot of reduced space. If the actual rentable 

square footage of the first floor was greater than the baseline estimate, Terra would pay NM 

Project $5500 per square foot of increased space. As to the second floor, if the resulting rentable 

square footage was less than the baseline estimate, NM Project would pay $800 per square foot 

for any such reduction. If the rentable square footage of the second floor was greater than the 

baseline estimate, Terra would owe nothing to NM Project for this additional square footage. 

¶ 6 Consistent with Terra’s wish that the common space for the other parts or parcels of the 

building not be included in the measurement of the retail parcel, the term sheet referred only to 

the “contiguous” space of the first floor of the retail parcel, and expressly excluded “the 
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Common Area Parcel[1] and lobbies for the Office Parcel and Condominium/Parking Parcel 

[residential parcel] and building service areas (including, but not limited to, loadings docks, 

freight elevator lobby, mechanical space and other ‘back of the house’ space)” (exclusionary 

language) from the rentable area of the retail parcel.

¶ 7 In the several years following execution of the term sheet, but before the final closing, 

Terra and NM Project entered into a series of agreements that governed the transaction

(collectively referred to as the agreements). These agreements included the following, none of 

which included the exclusionary language. 

¶ 8 On June 21, 2005, Terra and NM Project executed a purchase agreement that, in section 

9, set forth the formula for determining the retail parcel credit. That formula was consistent with 

the language contained in the term sheet, except that section 9 did not contain the exclusionary 

language. 

¶ 9 The first amendment to the purchase agreement (first amendment), which was executed 

on May 29, 2007, provided for how the retail parcel would be measured for purposes of 

determining the retail parcel credit. Specifically, paragraph 5 of the first amendment provided 

that rentable square footage or rentable square feet was to be calculated pursuant to the 

“Standard Method for Measuring Floor Area in Office Buildings (ANSI/BOMA Z65.1-1996), 

An American National Standard Approved June 7, 1996 by American National Standards 

Institute, Inc., published by Building Owners and Managers Association International” 

(hereinafter BOMA 96). According to Terra, BOMA 96 is a method of measurement which 

 1

The term sheet defined the common area parcel as “[t]he common lobby, elevators, spaces, and 

shafts for the building’s plumbing, electrical, and mechanical systems and similar spaces.” 
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would allocate a pro rata share of the common space of the building to the rentable area of the 

retail parcel unless that space was, otherwise, expressly excluded. 

¶ 10 In March 2008, Terra and NM Project entered into a third amendment to the purchase 

agreement and other related agreements (third amendment). Section 6 of the third amendment 

required that Terra provide a letter of credit as security for any possible retail parcel credit to be 

made by Terra. To determine the amount of the line of credit, NM Project was to provide an 

estimate of the rentable square feet of the retail parcel based on the final or substantially final 

plans for the building. Terra and NM Project were then to agree on the amount, if any, Terra 

might be responsible to pay under the retail parcel credit based on those estimates. Terra would 

submit a letter of credit for that amount before construction began. However, if there was a 

dispute as to the measurement of the retail parcel, the issue was to be resolved through an agreed 

alternative dispute procedure which included arbitration. 

¶ 11 In October 2009, Terra and NM Project executed a declaration of covenants, conditions, 

restrictions, and easements (the 2009 declaration), which defined how the rental, residential and

office parcels were to share the building and its various components. The 2009 declaration was 

superseded by a 2012 declaration of covenants, conditions, restrictions, and easements (the 2012 

declaration).

¶ 12 On March 2, 2010, NM Project and Terra entered into a letter agreement (the March 2010 

letter) that amended the purchase agreement and other related agreements. The March 2010 letter 

included agreements to exclude the basement space of the building2 from both the retail and the 

 2

The term sheet included a baseline estimate of 3000 square feet for the basement of the retail 

parcel and NM Project was to pay $300 per reduced square foot for this space. This space is not at issue 

on appeal. 
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office parcels, exclude a designated limited portion of the retail parcel from the rental square 

footage of the first floor and remeasure the space under the fire stairs or beams upon completion 

of the retail parcel and adjust the amount due under section 9 of the purchase agreement 

accordingly.

¶ 13 At different stages of the building’s development, Terra and NM Project disputed the size 

of the rentable space of the retail parcel.

¶ 14 In order to determine Terra’s obligation for posting a line of credit, pursuant to the third 

amendment, in late 2010 NM Project provided Terra with its calculations of the expected square 

footage of the retail parcel based on the final plans. NM Project projected the rentable area for 

the first floor of the retail parcel to be 10,363 square feet, 2332 square feet greater than the 

baseline estimate, and therefore NM Project contended it would be entitled to a retail parcel 

credit of $12,771,000. The rentable square feet area for the second floor of the retail parcel was 

calculated to be 12,587 square feet, which was 1859 square feet greater than the baseline 

estimate. Pursuant to the parties’ agreements, NM Project was not entitled to receive a credit 

relating to the second floor. 

¶ 15 Terra disagreed with NM Project’s calculations, because they included an allocated share 

of the common areas for the other parcels. Terra believed that, upon completion, the first floor 

rentable area would be 7403 square feet and the second floor rentable area would be 9183 square 

feet. Therefore, Terra contended NM Project would owe an additional $4,737,000 at the closing 

as the retail parcel credit.

¶ 16 To resolve the dispute, Terra and NM Project engaged in the agreed alternative dispute 

procedures. An October 11, 2010, arbitration award provided that, based on the final plans, the 
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first floor rental space would be 8801 square feet and the second floor would be 10,363 square 

feet. Based on this award, Terra would owe NM Project in excess of $3.8 million at the closing 

as the retail parcel credit, and was therefore required to post an appropriate line of credit 

pursuant to the third amendment. 

¶ 17 Near the completion of the building in late 2012, NM Project determined that the final 

rentable square footage of the first floor of the retail parcel was 8857 square feet and the second 

floor was comprised of 10,450 rentable square feet. NM Project asserted that, based on these 

measurements, Terra would owe a retail parcel credit of $4,265,000 at closing. 

¶ 18 Terra again challenged NM Project’s measurements, contending that only the contiguous 

space within the retail parcel should be measured. Terra calculated the rentable square feet of the 

first floor to be 7835 square feet, with the second floor including 8839 square feet. Using these 

measurements, Terra maintained that NM Project would owe a retail parcel credit of $2,643,619 

at the closing.

¶ 19 To resolve their differences, NM Project and Terra again engaged in arbitration. On 

January 30, 2013, the arbitration panel issued an award, which provided that the BOMA 96 

calculations showed that, as constructed, the first floor rentable space included 8733 square feet

and the second floor included 10,628 square feet. Pursuant to this award, Terra paid NM Project 

approximately $3.8 million as the retail parcel credit at the February 13, 2013, closing. 

¶ 20 On February 23, 2015, Terra filed a legal malpractice suit against DLA, alleging 

negligence in its representation of Terra with regard to the sale. However, pursuant to a tolling 

agreement, the complaint was “deemed filed on October 7, 2014.” Terra asserted in its complaint 
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that, throughout the negotiations of the agreements, it had expressed to DLA its concerns that the 

exclusionary language of the term sheet had not been included in the agreements. 

¶ 21 Terra further alleged that DLA breached its duty of care by failing to advise Terra that 

using BOMA 96 would necessarily include the common areas for the other parcels in the 

measurements of the rental area of the retail space, and by failing to include the exclusionary 

language of the term sheet in the agreements. Terra further alleged that had it known that the 

failure to include the exclusionary language in the agreements would result in the common areas 

for the entire building being added into the calculation of the rentable area of the retail parcel, it 

either would not have agreed to the use of BOMA 96 or would have “insisted” on the inclusion 

of the exclusionary language. Alternatively, Terra would have “insisted” that the baseline 

estimates, which had not included the common areas, be “grossed up” to include the common 

area square footage.

¶ 22 Terra believed that if the measurement of the retail parcel had been calculated 

consistently with its expressed intent at the closing, NM Project would have paid Terra $2.6 

million under the retail parcel credit provision, rather than Terra paying NM Project over $3.8 

million. Terra’s complaint thus alleged that as a result of DLA’s negligence it had suffered 

damages in the amount of $6,449,619 (the total of what Terra paid and the amount Terra 

contends it was owed as to the retail parcel credit) and had incurred $500,000 in legal fees and 

costs associated with the arbitrations.

¶ 23 On April 3, 2015, DLA filed a motion, pursuant to section 2-619(a)(5) of the Code of 

Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2014)), to dismiss the complaint as 
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untimely under both the applicable statute of limitations (735 ILCS 5/13-214.3(b) (West 2014))

and the statute of repose (735 ILCS 5/13-214.3(c) (West 2014)). 

¶ 24 On October 20, 2015, the circuit court granted the motion and dismissed the action with 

prejudice, based on the language of the statute of repose providing that a legal malpractice claim 

“may not be commenced *** more than 6 years after the date on which the act or omission 

occurred.” Id. The court concluded that “the alleged negligence occurred when the First 

Amendment was executed [May 29, 2007]. That’s the document that contained the *** BOMA 

‘96 as the standard for measuring the retail parcel. It did not include the exclusionary language 

that was included in the term sheet.” The circuit court then denied Terra’s oral motion to amend 

the complaint, which Terra claimed would “replead in separate counts the original [c]omplaint’s 

separate and independent acts of malpractice, including a number of negligent acts that occurred 

within the six-year repose period.” Terra timely appealed both the dismissal of its complaint, and 

the circuit court’s denial of leave to file an amended complaint.

¶ 25 II. ANALYSIS

¶ 26 A motion to dismiss under section 2-619 of the Code “admits the legal sufficiency of the 

plaintiffs’ complaint, but asserts an affirmative defense or other matter that avoids or defeats the 

claim.” DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). When considering such a motion, a court 

must accept as true all well pled facts in the complaint and any reasonable inferences drawn 

therefrom. Purmal v. Robert N. Wadington & Associates, 354 Ill. App. 3d 715, 720 (2004). 

Section 2-619(a)(5) more specifically allows a cause of action to be dismissed if it was not 

commenced within the time limited by law. 735 ILCS 5/2-619(a)(5) (West 2014). We review a 
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dismissal under section 2-619 de novo. Peregrine Financial Group, Inc. v. Futronix Trading, 

Ltd., 401 Ill. App. 3d 659, 660 (2010). 

¶ 27 This appeal also requires us to construe section 13-214.3 of the Code. The well 

recognized rules for such a task were recently outlined in Hendricks v. Board of Trustees of the 

Police Pension Fund, 2015 IL App (3d) 140858, ¶ 14: 

“The fundamental rule of statutory interpretation is to ascertain and give effect to the 

intent of the legislature. [Citation.] The most reliable indicator of that intent is the 

language of the statute itself. [Citation.] In determining the plain meaning of statutory 

language, a court will consider the statute in its entirety, the subject the statute addresses,

and the apparent intent of the legislature in enacting the statute. [Citations.] If the 

statutory language is clear and unambiguous, it must be applied as written, without 

resorting to further aids of statutory interpretation. [Citation.] A court may not depart 

from the plain language of the statute and read into it exceptions, limitations, or 

conditions that are not consistent with the express legislative intent. [Citation.]” 

We review questions of statutory construction de novo. Feltmeier v. Feltmeier, 207 Ill. 2d 263, 

267 (2003). 

¶ 28 Section 13-214.3 of the Code sets forth the permissible time frame for the filing of a legal 

malpractice action. First, the section includes a statute of limitations requiring that a legal 

malpractice action “be commenced within 2 years from the time the person bringing the action 

knew or reasonably should have known of the injury for which damages are sought.” 735 ILCS 

5/13-214.3(b) (West 2014). Second, the section includes a statute of repose providing that a legal 

malpractice action “may not be commenced in any event more than 6 years after the date on 
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which the act or omission occurred.” 735 ILCS 5/13-214.3(c) (West 2014). Finally, the section 

includes a provision stating that if “the injury caused by the act or omission does not occur until 

the death of the person for whom the professional services were rendered,” the suit may be 

commenced within two years after the death unless letters of office are issued or the person’s 

will is admitted to probate within that two year period. 735 ILCS 5/13-214.3(d) (West 2014). 

¶ 29 The dismissal of this case was based on the statute of repose. A statute of repose is 

intended to place a limit on the period of time for commencing suit “regardless of a potential 

plaintiff’s lack of knowledge of his cause of action.” (Internal quotation marks omitted.) 

Goodman v. Harbor Market, Ltd., 278 Ill. App. 3d 684, 690 (1995). As our supreme court has 

further explained: 

 “In contrast to a statute of limitations, which determines the time within which a 

lawsuit may be commenced after a cause of action has accrued, a statute of repose 

extinguishes the action after a defined period of time, regardless of when the action 

accrued. [Citation.] A statute of repose is not tolled by the discovery rule. [Citation.] 

After the expiration of the repose period, ‘[t]he injured party no longer has a recognized 

right of action.’ [Citation.] A plaintiff’s right to bring an action is terminated when the 

event giving rise to the cause of action does not transpire within the period of time 

specified in the statute of repose.” Evanston Insurance Co. v. Riseborough, 2014 IL 

114271, ¶ 16. 

A statute of repose, thus, “gives effect to a policy different from that advanced by a statute of 

limitations; it is intended to terminate the possibility of liability after a defined period of time.” 

Ferguson v. McKenzie, 202 Ill. 2d 304, 311 (2001). 
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¶ 30 On appeal, Terra presents several arguments to support reversal of the dismissal of its 

cause of action under the statute of repose. First, Terra contends that the statute of repose did not 

begin to run until the closing on the sale of the property on February 13, 2013, which was the last 

day of DLA’s representation as to the sale. This argument is based on Terra’s belief that a 

transactional malpractice case is treated differently under the statute of repose than a litigation 

malpractice case. In the alternative, Terra maintains that the earliest the repose statute could 

begin to run was at the time of the March 2010 letter. Finally, Terra argues that DLA’s 

negligence did not end at the time of the first amendment; rather, it continued with DLA’s 

separate failures to include the exclusionary language in each of the agreements.

¶ 31 “The statute of repose in a legal malpractice case begins to run as soon as an event giving 

rise to the malpractice claim occurs, regardless of whether plaintiff’s injury has yet been 

realized.” Lamet v. Levin, 2015 IL App (1st) 143105, ¶ 20. The statute of repose may not be 

tolled merely by the continuation of the attorney-client relationship. Mauer v. Rubin, 401 Ill. 

App. 3d 630, 639 (2010); Lamet, 2015 IL App (1st) 143105, ¶ 23. 

¶ 32 The well pled facts of the complaint show that Terra informed DLA of its wish that the 

common space for the other parcels not be included in the calculation of the rental area of the 

retail parcel when determining the retail parcel credit. In accordance with that desire, the term 

sheet contained the exclusionary language. Subsequently, however, the first amendment 

provided that BOMA 96 would be the method for measuring the rentable area. According to the 

complaint, BOMA 96 calculations include a pro rata share of the common spaces of the whole 

building unless the common spaces are expressly excluded. The first amendment, however, did 

not have the exclusionary language included in the term sheet. Terra alleges that DLA 
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negligently failed to include the exclusionary language in the agreement to use BOMA 96, and

negligently failed to advise Terra that the pro rata share of the common space would be included 

in the rental area calculations under BOMA 96. These failures of DLA allegedly caused Terra to 

engage in arbitrations over the measurements of the retail parcel and to make rather than receive 

a retail credit payment at the closing. 

¶ 33 We conclude that the event giving rise to Terra’s injuries occurred on May 29, 2007, 

when Terra and NM Project executed the first amendment and chose BOMA 96 as the method of 

measuring the retail parcel without the exclusionary language. Fricka v. Bauer, 309 Ill. App. 3d 

82, 88 (1999) (“The plain language of the statute requires filing of the lawsuit within six years of 

the acts or omissions that form the basis for the complaint.”). The measurements of the rentable 

area under the BOMA 96 standards, without excluding the common space, resulted in the 

increases of the retail parcel space, which required Terra to engage in arbitrations to dispute the 

measurements, incur the related attorney fees and expenses and make the retail parcel credit 

payment at the closing. Terra’s asserted injuries directly flowed from DLA’s allegedly negligent 

omissions and acts as to the first amendment. 

¶ 34 Under the statute of repose, Terra thus had until May 29, 2013, to file its malpractice suit 

against DLA, and its October 2014 complaint therefore was untimely. The circuit court properly 

dismissed the action. See Evanston Insurance Co., 2014 IL 114271, ¶ 16 (“After the expiration 

of the repose period, ‘[t]he injured party no longer has a recognized right of action.’ 

[Citation.] ”).

¶ 35 In considering the possible harshness of this result, we note that both the October 2010 

arbitration award as to Terra’s obligation to post a line of credit, and the January 2013 arbitration 
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award that established the retail parcel credit at the closing, were based on measurements of the 

retail parcel using BOMA 96 and indicated that Terra would be responsible to pay a retail parcel 

credit at the closing. The awards were entered before the expiration of the statute of repose and 

offered Terra an opportunity to file a timely action under the statute of repose against DLA. 

Further, the March 12, 2013, closing took place about three months before the running of the 

statute of repose, giving Terra yet another opportunity to file a timely suit.

¶ 36 Terra argues that a transactional malpractice action is treated differently from a litigation 

malpractice action under the statute of repose. According to Terra, in a transactional context, the 

statute of repose does not begin to run “until the completion of the last affirmative act of 

representation in the matter that included the attorney’s negligence” and, in this case, that would 

be the March 2013 closing. (Emphasis added.) Terra relies on Lamet, Snyder v. Heidelberger, 

2011 IL 111052, and Trogi v. Diabri & Vicari, P.C., 362 Ill. App. 3d 93 (2005). We disagree 

with Terra.

¶ 37 It is true that, in applying the statute of repose to the particular facts and circumstances at 

hand, our courts have remarked as to certain differences between litigation and transactional 

matters. See, e.g., Goldstein v. DABS Asset Manager, Inc., 381 Ill. App. 3d 298, 304 (2008) (“In 

a transactional setting, the statute of repose may cut off a malpractice action before it accrues.”); 

Fricka, 309 Ill. App. 3d at 87 (where court noted that a malpractice plaintiff who is injured in a 

litigation setting will not often be impacted by the statute of repose, while the statute of repose 

may cut off suits arising in the transactional setting); Trogi, 362 Ill. App. 3d at 98 (where the 

court distinguished the holding in Hester v. Diaz, 346 Ill. App. 3d 550, 554 (2004), in part, 

because that case involved malpractice in the context of litigation). See also Union Planters 
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Bank, N.A. v. Thompson Coburn LLP, 402 Ill. App. 3d 317, 344 (2010) (where court compared 

proof of damages in a litigation malpractice case with a transactional one). 

¶ 38 However, the plain language of section 3-214.3 makes no distinction in its application as 

to types of malpractice. Rather, by its plain terms, the section applies to “[a]n action for damages 

based on tort, contract, or otherwise *** against an attorney arising out of an act or omission in 

the performance of professional services.” 735 ILCS 5/13-214.3(b) (West 2014). The statute 

contains no limiting language as to an “act,” or “omission,” or “performance of professional 

services,” which may form the basis of the legal malpractice action. “It is improper for a court to 

depart from the plain statutory language by reading into the statute exceptions, limitations, or 

conditions that conflict with the clearly expressed legislative intent.” Bettis v. Marsaglia, 2014 

IL 117050, ¶ 13 (citing Metropolitan Life Insurance Co. v. Hamer, 2013 IL 114234, ¶ 18). We 

cannot read the statute of repose as having differing rules of application depending on whether 

the negligent misconduct takes place in a transactional or a litigation setting. Therefore, the 

statute of repose as to any legal malpractice case “begins to run as soon as an event creating the 

malpractice occurs, regardless of whether an injury has yet resulted so as to cause an action to 

accrue.” Mauer, 401 Ill. App. 3d at 639. 

¶ 39 We disagree with Terra’s argument that Lamet should be considered as setting forth 

solely a “statute of repose rule for litigation malpractice.” (Emphasis in original.) The defendant 

in Lamet began representing the plaintiff in 1994 as to a dispute with his landlord. Lamet, 2015 

IL App (1st) 143105, ¶ 4. The litigation covered 17 years and was settled in 2011 after the 

plaintiff learned that the claims and affirmative defenses that had been asserted against his 

landlord by the defendant on his behalf “were ‘likely indefensible.’ ” Id. ¶ 9. The plaintiff’s 
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malpractice suit, which was filed in 2011, was dismissed as untimely under the statutes of 

limitations and repose. Id. ¶¶ 11, 14. On appeal, we rejected the plaintiff’s argument that the 

statute of repose began to run on June 10, 2011, when the defendant “filed his final version of 

[the] affirmative defenses.” Id. ¶¶ 19-20. We found, instead, that the statute of repose began to 

run in 1994, at the outset of the representation when the defendant failed to inform the plaintiff 

that he had no meritorious defenses, claims, or remedies, notwithstanding the defendant’s “later 

failure to correct that omission.” Id. ¶ 23. 

¶ 40 As alleged in Terra’s complaint, the event from which Terra’s injuries flowed was the 

execution of the first amendment which contained the agreement that the method to measure the 

retail parcel was to be BOMA 96, without the exclusionary language. As in Lamet, this is the 

event from which the injuries flowed, notwithstanding DLA’s subsequent failures to correct the 

issue prior to the closing. 

¶ 41 The discussion in Lamet upon which Terra relies does not require a different holding in 

this case. We did say in Lamet that, in the transactional context, the overt act from which the 

injury flows “will typically be the date upon which the transaction is executed and the negligence 

is complete,” while in the litigation context the negligent act can occur before the end of 

litigation and the representation has ended. (Emphasis added.) Id. ¶ 25. Our statements, as to 

when the negligent act generally occurs in a transactional case and a litigation case, should not 

be read as a bright line rule that, in a transactional setting, the statute of repose always begins to 

run when the attorney’s representation ends. 

¶ 42 Similarly, while in Snyder and Trogi the statute of repose was found to have been 

triggered upon a negligent act that also happened to be the last act of representation, that fact 
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does not require a finding in this case that the statute of repose did not began to run until the 

closing, simply because that is when DLA’s representation of Terra as to the sale ended. 

¶ 43 In Snyder, the plaintiff’s husband retained the defendant attorney in 1997 to prepare a 

deed conveying the marital home to the plaintiff and her husband as joint tenants with the right 

of survivorship. Snyder, 2011 IL 111052, ¶ 3. After the husband died in 2007, the plaintiff 

learned that the property was held by a trustee in a land trust and that her stepson was the sole 

beneficiary. In 2008, she brought a malpractice action against the defendant. Id. ¶¶ 2-3. The 

defendant’s motion to dismiss the plaintiff’s suit as untimely was granted. Id. ¶ 5. Before our 

supreme court, the defendant argued that the “injury” occurred, not when the husband died, but 

when the deed was prepared. Id. ¶ 12. The plaintiff agreed that “an injury did occur” when the 

deed was prepared, but maintained that another injury occurred when the husband died and she 

did not have a surviving interest in the property. Id. The plaintiff further contended that it was 

the “last injury that determines when the limitations period began to run.” Id. 

¶ 44 These arguments related to whether section 13-214.3(d), which allows suit to be 

commenced two years after the client’s death, applied to make the Snyder action timely and not 

the two year statute of limitations of section 13-214.3(b), which would render the action

untimely. A determination as to the applicability of section 13-214.3(d) turns solely on whether 

the injury caused by the malpractice occurred upon the death of the client. Id. ¶ 13 (citing 

Peterson v. Wallach, 198 Ill. 2d 439 (2002)). In contrast, the statute of repose does not run from 

an “injury,” but rather from an act or omission. 735 ILCS 5/13-214.3(c) (West 2014).

¶ 45 Thus, our supreme court concluded in Snyder that “[s]ince the injury in this case occurred 

at the time the deed was prepared and executed, the two-year limitations period contained in 
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subsection (b) of the statute applies.” Snyder, 2011 IL 111052, ¶ 17. The court, however, then

addressed the statute of repose by first noting that “[t]he period of repose in a legal malpractice 

case begins to run on the last date on which the attorney performs the work involved in the 

alleged negligence.” Id. ¶ 18 (citing Carlen v. First State Bank of Beecher City, 367 Ill. App. 3d 

1051, 1056 (2006), and Trogi, 362 Ill. App. 3d at 96). The court concluded that the statute of 

repose began to run at the time the improperly recorded deed was mailed, as that was the “last 

act of defendant’s representation.” Id. The plaintiff’s suit was therefore untimely. Id. 

¶ 46 Again, we conclude that the language in Snyder that the statute of repose in that case

began to run with the last act of representation—preparation and delivery of the deed—should 

not be read to mean that, in every transaction, the statute of repose for a malpractice action 

begins on the last day or act of representation. As we stated in Lamet, this language “was not 

being used in Snyder to extend the period of repose. On the contrary, it was used to show that the 

Snyder plaintiff’s suit was clearly past the period of repose. The Snyder defendant’s delivery of 

the defective deed was a ‘single overt act from which subsequent damages may flow’ [citation], 

thus triggering the start of the period of repose.” Lamet, 2015 IL App (1st) 143105, ¶ 25. In this 

case, the execution of the first amendment was the last date on which DLA performed “the work 

involved in the alleged negligence” (Snyder, 2011 IL 111052, ¶ 18), and was the conduct from 

which the damages flowed (Lamet, 2015 IL App (1st) 143105, ¶ 25). 

¶ 47 The attorney in Trogi negligently recorded a deed transferring ownership to the plaintiff 

from his daughter in the wrong county in October 1998 and mailed the improperly recorded deed 

to the plaintiff in late December 1998. Trogi, 362 Ill. App. 3d at 94. The daughter transferred the 

property to a third party in 2003, and because the prior deed was not properly recorded the 
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plaintiff’s interest in the property was extinguished. The plaintiff’s malpractice suit against the 

defendant was filed in November 2004 and was dismissed under the statute of repose. Id. at 94-

95. 

¶ 48 In reviewing the dismissal, the appellate court cited the holding in Frika that the attorney 

malpractice period of repose begins to run on the last date on which the attorney performs the 

work involved in the alleged negligence. Id. at 96. The dismissal in Trogi was reversed, based on 

a finding that the sending of the improperly recorded deed to the plaintiff was the defendant’s 

last act of negligence as to the improper recording of the deed, an act which “coincided with the 

termination of the attorney-client relationship.” (Emphasis added.) Trogi, 362 Ill. App. 3d at 98.

Here although it did not coincide with the termination of the attorney-client relationship, the last 

act of negligence from which the damages flowed was that associated with the agreement to use 

BOMA 96, without the exclusionary language, which occurred upon the execution of the first 

amendment by Terra and NM Project on May 29, 2007. 

¶ 49 Our rejection of Terra’s position—that in a transaction malpractice case the statute of 

repose does not run until the last act of representation as to the entire matter—is consistent with 

our case law that “the statute of repose is not tolled merely by the continuation of the attorneyclient relationship” (Lamet, 2015 IL App (1st) 143105, ¶ 20 (citing Mauer, 401 Ill. App. 3d at 

640)), nor “by the attorney’s ongoing duty to correct past mistakes” (id. (citing Frika, 309 Ill.

App. 3d at 84)).

¶ 50 In the alternative, Terra argues that DLA’s “work” on the measurement of the retail 

parcel “did not end, at least, until the execution of the March 2010 [letter].” According to Terra, 

the March 2010 letter “should be considered as the last act of negligence.” As noted above, the 
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March 2010 letter did include agreements as to the retail parcel and its measurements. However, 

we do not agree that the statute of repose began to run with the March 2010 letter. 

¶ 51 As we have stated, the statute of repose in a legal malpractice case begins to run as soon 

as the event giving rise to the claim occurs (Mauer, 401 Ill. App. 3d at 639), and is not tolled 

merely by the continuation of the attorney-client relationship (id. at 640; Lamet, 2015 IL App 

(1st) 143105, ¶ 20; Sorenson v. Law Offices of Theodore Poehlmann, 327 Ill. App. 3d 706, 710 

(2002)). Therefore, even if DLA failed to include the exclusionary language in the March 2010 

letter, the statute of repose began to run with the execution of the first amendment in May 2007. 

“[W]here there is a single overt act from which subsequent damages may flow, the statute begins 

to run on the date the defendant invaded the plaintiff’s interest and inflicted injury, and this is so 

despite the continuing nature of the injury.” Feltmeier, 207 Ill. 2d at 279. The acts and omissions 

of DLA as to the drafting and execution of the first amendment gave rise to this claim, and the 

statute of repose was not tolled by any failure to include the exclusionary language in the March 

2010 letter. 

¶ 52 Finally, Terra argues that “DLA could and should have placed the [e]xclusionary 

[l]anguage in several post-2007 [agreements] and its failure to include the term in any of these 

documents is what proximately caused Terra’s injury.” Terra contends that this argument neither 

encroaches on the rule that continuous representation does not toll the statute of repose, nor can 

it be viewed as an argument that DLA failed to correct the omission of the exclusionary language 

in the first amendment. We disagree.

¶ 53 In essence, Terra argues that as its attorney for the negotiations and at the closing, DLA 

had a continuing duty to correct the injuries which flowed from the first amendment. However, 
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the failure to include the exclusionary language in the agreements did not exacerbate the injuries 

which were caused by the execution of the first amendment or cause different injuries. The 

period of repose is not tolled by DLA’s subsequent failures to correct the omission of the 

exclusionary language in the first amendment. See Mauer, 401 Ill. App. 3d at 642 (ongoing duty 

to correct does not delay beginning of period of repose (citing Fricka, 309 Ill. App. 3d at 84)).

¶ 54 Because we hold that Terra’s suit is time-barred under the statute or repose, we need not 

address the issue of whether the suit was untimely under the statute of limitations. See Lamet, 

2015 IL App (1st) 143105, ¶ 28 (where court declined to consider statute of limitations after 

finding the statute of repose barred the suit). 

¶ 55 Terra next argues that the circuit court erred in denying its oral motion to amend its

complaint to plead independent acts of malpractice as to the failure to include the exclusionary 

language in the agreements that were executed between 2007 and 2012, which would fall within 

the six year statute of repose. 

¶ 56 Section 2-616(a) of the Code (735 ILCS 5/2-616(a) (West 2014)), provides that “[a]t any 

time before final judgment amendments may be allowed on just and reasonable terms *** which 

may enable the plaintiff to sustain the claim for which it was intended to be brought or the 

defendant to make a defense or assert a cross claim.” The decision to grant a motion to amend 

pleadings is within the discretion of the circuit court, and a reviewing court will not reverse the 

circuit court’s decision absent an abuse of discretion. Loyola Academy v. S&S Roof Maintenance, 

Inc., 146 Ill. 2d 263, 273 (1992). 

¶ 57 Typically, in reviewing the denial of a motion to amend, the reviewing court considers 

whether (1) the proposed amendment would cure the defective pleading, (2) the proposed 
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amendment would surprise or prejudice the opposing party, (3) the proposed amendment was 

timely filed, and (4) the moving party had previous opportunities to amend. Id. However, a 

number of courts have recognized that these so-called Loyola Academy factors “apply only to 

amendments that have been proposed prior to final judgment.” Tomm’s Redemption, Inc. v. 

Hamer, 2014 IL App (1st) 131005, ¶ 14; Hachem v. Chicago Title Insurance Co., 2015 IL App 

(1st) 143188, ¶ 18; Compton v. Country Mutual Insurance Co., 382 Ill. App. 3d 323, 332 (2008) 

(same). After final judgment, a party has no statutory right to amend a pleading under section 2-

616(a) of the Code; rather, a party may only amend a pleading to conform the pleadings to the 

proofs under section 2-616(c). Id. Because in this case Terra only requested to amend its 

complaint after the trial court dismissed it with prejudice, under this line of authority the trial 

court did not err in denying that request. See Hamer, 2014 IL App (1st) 131005, ¶ 14 (noting that 

“[a]fter final judgment, a plaintiff has no statutory right to amend a complaint and a court 

commits no error by denying a motion for leave to amend”), and Hachem, 2015 IL App (1st) 

143188, ¶ 18 (noting that it is well settled that the dismissal of a cause of action constitutes a

final judgment).

¶ 58 Nevertheless, even if we declined to follow this line of authority and found that

application of the Loyola Academy factors was appropriate here, we find that Terra’s proposed 

amendment to the complaint would not have cured the defect. The complaint was dismissed as 

time-barred because the statute of repose began to run at the execution of the first amendment.

As we have found, the statute of repose was not tolled by DLA’s continued representation of 

Terra and its failure to include the exclusionary language in the agreements, including those 
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executed between 2007 and 2012. The circuit court properly denied Terra’s request to amend the 

complaint.

¶ 59 III. CONCLUSION

¶ 60 For the reasons stated above, we find that the statute of repose barred Terra’s action for 

legal malpractice against DLA, and the proposed amendment to the complaint would not have 

cured this defect. Therefore, we affirm both the circuit court’s dismissal of the complaint with 

prejudice and its denial of leave to file an amended complaint.

¶ 61 Affirmed.