NO. 5-99-0717

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

______________________________________________________________________

_____

MICHELLE McINTOSH and ELAINE DINGES,	)  Appeal from the

								)  Circuit Court of

	Plaintiffs-Appellants,				)  St. Clair County.  

								)

v.								)  No. 98-L-999A

								)

AMIEL CUETO, Individually and as an Agent for 	)

CUETO, DALEY, WILLIAMS, MOORE & CUETO, 	)

LTD., 							)  Honorable

								)  Randall A. Bono, 

	Defendants-Appellees.				)  Judge, presiding.  

______________________________________________________________________

_____

	JUSTICE HOPKINS delivered the opinion of the court:

	Michelle McIntosh and Elaine Dinges (formerly Elaine McIntosh) (collectively,

plaintiffs) appeal from the trial court's grant of summary judgment in favor of Amiel Cueto

and his law firm, Cueto, Daley, Williams, Moore & Cueto, Ltd. (collectively, defendants). 

Plaintiffs claim that defendants are guilty of legal malpractice for having allowed the statute

of limitations on plaintiffs' medical malpractice claim to run without filing a complaint. 

Plaintiffs argue that even though they filed their legal malpractice case beyond the legal

malpractice statute of limitations (735 ILCS 5/13-212 (West 1998)), defendants should be

estopped from using that statute of limitations as a defense, because defendants are guilty

of fraudulently concealing the fact that a medical malpractice action was never filed.  We

affirm the trial court because plaintiffs never pled equitable estoppel or fraudulent

concealment and they did not request leave of court to amend their pleadings.  

	FACTS

	On November 20, 1998, plaintiffs filed a complaint against defendants.  In count I of that complaint, Michelle alleged that she was born on February 3, 1970, and that Elaine

was her mother.  Count I alleged, "As a result of negligent acts on the part of one or more

medical care providers during the course of [her] birth, she suffers from impairment in her

hearing, schizophrenia, and other disabilities."  Count I also alleged that a valid cause of

action arose on behalf of Michelle due to the problems surrounding her birth.  

	Michelle further alleged that on June 6, 1987, she and her mother entered into a

contract with Cueto, whereby Cueto agreed to represent Elaine on behalf of Michelle in the

medical malpractice case.  Michelle alleged that Cueto breached his duty to her by failing

to adequately investigate her medical malpractice claim, by failing to seek the advice of a

physician, by failing to file a medical malpractice lawsuit on her behalf, and by failing to

inform her of his inaction in time for her to obtain other counsel.  Michelle alleged that as

a proximate result of Cueto's negligence, Michelle's medical malpractice claim was "forever

barred, leaving her without just compensation." 

	Count II of the complaint makes basically the same allegations as count I but is on

behalf of Elaine as the plaintiff rather than Michelle.  Count I does not allege a separate

injury incurred by Elaine personally.  

	Count I continues with additional allegations that are not contained in count II. 

Count I alleges that on September 14, 1993, and again on November 29, 1993, Elaine wrote

to Cueto, "attempting to get information regarding the status of her case"; that Cueto failed

to respond to either letter; that he continued to maintain a file on plaintiffs' case but did not

perform any work on their behalf after January 27, 1988; and that Michelle failed to discover

the facts giving rise to her cause of action against Cueto "due to the trust and confidence"

that she placed in Cueto.  

	Defendants filed an answer and an affirmative defense to each of the two counts.  In their affirmative defenses, defendants alleged that plaintiffs' cause of action was "not

commenced within the time limited by law and is, therefore, barred by the applicable statute

of limitations."  See 735 ILCS 5/13-214.3 (West 1998) (the legal malpractice statute of

limitations).  Plaintiffs filed a response to defendants' affirmative defenses, in which they

denied the allegations of the affirmative defenses, but plaintiffs did not allege that any other

statute of limitations should apply.  

	As an amendment to the record on appeal, defendants submitted plaintiffs' answers

to interrogatories, dated March 25, 1999.  In those answers, Elaine stated that she sent letters

to Cueto in September and November 1993.  In those letters, Elaine complained that she had

not been able to contact Cueto by telephone, that he did not return her phone calls, and that

she was concerned about the status of her case.  In the letter of September 1993, Elaine

stated, in pertinent part, that she called Cueto's office "a number of times" in the preceding

six years and that "another attorney, [Cueto's] brother," told her that a suit had been filed and

that it would take a long time to settle.  Also in that letter, Elaine stated that when she asked

for her file, Cueto's brother called and asked some questions about the case and promised

to get back to her but never did.  In the November 1993 letter, Elaine stated that she did not

receive a response to her letter of September 1993, so she enclosed a typewritten copy of the

September letter in her November correspondence. 

	In Elaine's answers to interrogatories, she stated:  "I spoke on the telephone with

Christopher Cueto at least three times during the late summer and fall of 1993.  I was

assured the case was progressing, suit had been filed, and there was an expert in Texas that

they intended to consult with about the case." 

	After the parties conducted discovery, defendants filed a motion for summary

judgment, claiming essentially that (1) under the legal malpractice statute of limitations, the

complaint against defendants should have been filed within two years of the time plaintiffs knew or reasonably should have known of the loss of the medical malpractice action and (2)

in any event, under the statute of repose, the complaint should have been filed not more than

six years after the date on which the act or omission occurred.  Defendants contended that

the statute of limitations would have run no later than January 1, 1993, and that the statute

of repose would have expired on January 1, 1997, nearly two years before plaintiffs filed

their complaint.  

	Plaintiffs filed a response to defendants' motion for summary judgment, arguing that

defendants "failed to address the statutory limitations provision that is applicable to this

case."  In their response, plaintiffs contended that defendants' conduct, "as alleged in the

pleadings, amounts to fraudulent concealment."  Plaintiffs claimed that the correct statute

of limitations provides as follows:

		"If a person liable to an action fraudulently conceals the cause of such action

from the knowledge of the person entitled thereto, the action may be commenced at

any time within 5 years after the person entitled to bring the same discovers that he

or she has such cause of action, and not afterwards."  735 ILCS 5/13-215 (West

1998).  

	Plaintiffs further alleged in their response that during a phone conversation in 1993

a member of Cueto's firm misrepresented the status of the medical malpractice lawsuit. 

Plaintiffs alleged that in that conversation, the attorney told Elaine that a lawsuit had been

filed on plaintiffs' behalf and that plaintiffs were not able to find out that the medical

malpractice case had not been filed until they filed an action in discovery in 1998.  Plaintiffs

argued that they are well within the fraudulent concealment statute of limitations because

as soon as they discovered the fraudulent concealment, they filed the instant lawsuit. 

Plaintiffs contended that the trial court should find that the fraudulent concealment statute

of limitations applied, hold defendants equitably estopped from asserting the legal malpractice statute of limitations as a defense, and deny defendants' motion for summary

judgment.  

	A hearing was scheduled on the motion for summary judgment, but there is no

transcript of this proceeding in our record.  On October 15, 1999, the trial court entered an

order stating that the parties briefed the issues and appeared by counsel for argument.  The

court ruled as follows:  "Although the court finds the facts and issues presented in this matter

troubling, it appears that the statute of limitations and statute of repose control, and

Summary Judgment must therefore be GRANTED."  Plaintiffs did not ask the court to

reconsider this ruling, nor did they request leave to amend their pleadings.  Plaintiffs filed

a timely notice of appeal. 

	ANALYSIS

	Plaintiffs argue that the trial court erred in failing to apply equitable estoppel in this

case.  Plaintiffs' theory is that the trial court should have found defendants equitably

estopped from using a statute-of-limitations defense because they fraudulently concealed the

fact that no medical malpractice lawsuit had been filed.  Defendants counter that plaintiffs

did not plead equitable estoppel in the trial court and so cannot raise the issue on appeal. 

Defendants contend that the real issue is whether plaintiffs' action for legal malpractice is

barred as untimely pursuant to the legal malpractice statute of limitations and statute of

repose.  The correct statement of the issue is somewhere in between:  Did plaintiffs' failure

to plead equitable estoppel through fraudulent concealment bar the trial court from

considering that issue when it was raised as a part of the discovery prior to the motion for

summary judgment?  Under the circumstances of this case, we reach the unfortunate but

inescapable conclusion that the trial court was correct in granting a summary judgment in

favor of defendants.

	Since this case was decided on a motion for summary judgment, our standard of review is de novo; we seek to determine whether defendants were entitled to a judgment as a matter of law.  See Pagano v. Occidental Chemical Corp., 257 Ill. App. 3d 905 (1994).  In ruling on a motion for summary judgment, the court is required to construe all relevant

evidentiary material strictly against the movant and liberally in favor of the nonmovant. 

Pagano, 257 Ill. App. 3d at 908.  If the evidentiary material before the court could lead to more than one conclusion or inference, the court must adopt the conclusion or inference that

is most favorable to the opponent of the motion.  Pagano, 257 Ill. App. 3d at 908-09. 

	In Pagano, the court considered a grant of a motion for summary judgment in favor of the defendant, and in doing so, the court stated these additional rules, which are relevant

to this appeal:

	"A plaintiff fixes the issues in controversy and the theories upon which recovery is

sought by the allegations in his complaint.  The very purpose of a complaint is to

advise the defendant of the claim it is called upon to meet.  [Citation.]  In ruling on

a motion for summary judgment, the court looks to the pleadings to determine the

issues in controversy.  If the defendant is entitled to judgment as a matter of law on

the claims as pled by the plaintiff, the motion will be granted without regard to the

presence of evidentiary material which might create a right of recovery *** on some

unpled claim or theory.  Under the Code of Civil Procedure, a plaintiff's remedy in

such a circumstance is to move to file an amended complaint before the summary

judgment is granted ***.  [Citation.]  Having failed to seek relief ***, the plaintiff

will not be heard to complain that summary judgment was inappropriately granted

because of the existence of evidence supporting a theory *** that he never pled in his

complaint."  Pagano, 257 Ill. App. 3d at 911.  

	In the case at bar, plaintiffs filed a two-count complaint charging defendants with

legal malpractice.  Later, in response to defendants' motion for summary judgment, plaintiffs argued that defendants should be estopped from using the legal malpractice statute of

limitations as a defense because defendants fraudulently concealed the fact that they did not

file a complaint for medical malpractice and because plaintiffs reasonably relied upon this

untruth until it was too late to file such a complaint, i.e., the medical malpractice statute of limitations had run.  Therefore, plaintiffs claim a right to recovery not only based upon legal

malpractice but also based upon equitable estoppel through fraudulent concealment.  

	Plaintiffs argued in oral arguments before this court that the fraudulent concealment

doctrine is not a cause of action but only a statute of limitations and that, as such, a plaintiff

does not have to plead fraudulent concealment in order to take advantage of it as a longer

statute of limitations.  However, both equitable estoppel and fraudulent concealment must

be pled to be available.  Parks v. Kownacki, 193 Ill. 2d 164, 180 (2000) (equitable estoppel); Maness v. Santa Fe Park Enterprises, Inc., 298 Ill. App. 3d 1014, 1023 (1998) (equitable estoppel); Hirsch v. Feuer, 299 Ill. App. 3d 1076, 1086-87 (1998) (fraudulent concealment); Barratt v. Goldberg, 296 Ill. App. 3d 252, 258 (1998) (fraudulent concealment).  

		"To establish equitable estoppel, the party claiming estoppel must demonstrate

that: (1) the other party misrepresented or concealed material facts; (2) the other party

knew at the time the representations were made that the representations were untrue;

(3) the party claiming estoppel did not know that the representations were untrue

when the representations were made and when they were acted upon; (4) the other

party intended or reasonably expected the representations to be acted upon by the

party claiming estoppel or by the public generally; (5) the party claiming estoppel

reasonably relied upon the representations in good faith and to their detriment; and

(6) the party claiming estoppel has been prejudiced by his reliance on the

representations."  Parks, 193 Ill. 2d at 180.  

	Clearly, count II of the complaint, which names only Elaine as the plaintiff, does not allege any facts that could possibly amount to equitable estoppel through fraudulent

concealment.  There are no facts alleged in count II regarding any misrepresentation or

concealment, no facts regarding detrimental reliance, and no facts regarding any prejudice

resulting to Elaine because of any misrepresentation or concealment.  

	Count I comes closer to stating a cause of action for equitable estoppel but also falls

far short of the specificity necessary to such a claim.  The only facts in count I that could be

interpreted as alleging equitable estoppel are that Elaine wrote letters to Cueto, that Cueto

did not respond to those letters, and that Michelle failed to discover the facts giving rise to

her cause of action against Cueto due to the trust and confidence that she placed in him. 

These allegations do not amount to a cause of action for equitable estoppel against

defendants because there are no facts to show why it was reasonable for Michelle to place

trust and confidence in unanswered calls and letters or why she waited 11 years after hiring

Cueto to discover that he did not file a lawsuit on her behalf.  

	Plaintiffs argued in their response to the motion for summary judgment that Elaine

was unaware of the "true facts of the case up until [defendants'] file was produced in 1998,

a feat that required the filing of an action in discovery to accomplish."  Plaintiffs do not

address the question of why they chose to file an action in discovery instead of simply

checking the circuit court records to learn whether any case had been filed naming Michelle

and Elaine as plaintiffs.  We cannot hold defendants equitably estopped from asserting a

statute-of-limitations defense where plaintiffs had the ability to learn through a simple and

free process long before the limitations period ended that no case had been filed on their

behalf.  " 'A party claiming the benefit of an estoppel cannot shut his eyes to obvious facts,

or neglect to seek information that is easily accessible, and then charge his ignorance to

others.' "  Nickels v. Reid, 277 Ill. App. 3d 849, 856 (1996) (quoting Vail v. Northwestern Mutual Life Insurance Co., 192 Ill. 567, 570 (1901)); see also Dancor International, Ltd. v. Friedman, Goldberg & Mintz, 288 Ill. App. 3d 666, 676-77 (1997) (the fraudulent concealment statute does not apply to a party who, through the exercise of ordinary

diligence, could have discovered the concealed information). 

	Since we find that defendants are not estopped from asserting the statute-of-

limitations defense, the question becomes whether the trial court correctly found that the

legal attorney

malpractice statute of limitations and statute of repose barred plaintiffs' complaint.  The

statute of limitations governing actions against attorneys (735 ILCS 5/13-214.3 (West

1998)) became effective January 1, 1991, at a time when plaintiffs' attorney-client

relationship with defendants was still in effect.  Under subsection (b) of that statute,

plaintiffs had two years from the time they knew or reasonably should have known of the

injury within which to file suit.  735 ILCS 5/13-214.3(b) (West 1998).  Subsection (c) of that

statute provides that any such action may not be commenced "in any event" more than six

years "after the date on which the act or omission occurred."  735 ILCS 5/13-214.3(c) (West

1998).  

	According to the allegations in plaintiffs' complaint, the legal malpractice action

against defendants is based upon the loss of their medical malpractice action.  Therefore, we

must figure the approximate date beyond which the medical malpractice case could no

longer be filed, in order to determine the event that triggers the running of the legal

malpractice period of limitations.  The applicable medical malpractice statute of limitations

for those who are minors when the action accrues provides, in relevant part, that no action

for damages for injury or death against a physician, hospital, or other medical provider shall

be brought more than eight years after the date on which the malpractice occurred, where

the claimant was, at that time, under age 18, "provided, however, that in no event may the

cause of action be brought after the person's 22nd birthday."  735 ILCS 5/13-212(b) (West

1998).  Under any interpretation of the statute, the latest date to file any medical malpractice action based upon injuries occurring at Michelle's birth would have been her twenty-second

birthday, February 3, 1992.  Beyond that date, Michelle was barred from filing a medical

malpractice action for injuries caused at her birth.  Since defendants did not file a medical

malpractice action on behalf of either Michelle or Elaine prior to February 3, 1992, that is

the date upon which the legal malpractice statute of limitations began to run.

	The legal malpractice statute of limitations provides that an action for damages

against an attorney arising out of an act or omission in the performance of professional

services must be commenced within two years from the time the person knew or reasonably

should have known of his or her injuries.  735 ILCS 5/13-214.3(b) (West 1998).  The next

subsection, however, provides that a legal malpractice action may not be commenced in any

event more than six years after the date on which the act or omission occurred.  735 ILCS

5/13-214.3(c) (West 1998).  Thus, on February 3, 1998, six years after the medical

malpractice action was barred, the legal malpractice action based upon the loss of that

medical malpractice action was barred as well.  Since plaintiffs' complaint against

defendants was not filed until November 20, 1998, that complaint is barred by the attorneylegal

malpractice statute of limitations and statute of repose.  The trial court correctly granted

summary judgment in favor of defendants.  

	Affirmed.  

	MAAG and RARICK, JJ., concur.

	NO. 5-99-0717

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

MICHELLE McINTOSH and ELAINE DINGES,	)  Appeal from the

								)  Circuit Court of

	Plaintiffs-Appellants,				)  St. Clair County.  

								)

v.								)  No. 98-L-999A

								)

AMIEL CUETO, Individually and as an Agent for 	)

CUETO, DALEY, WILLIAMS, MOORE & CUETO, 	)

LTD., 							)  Honorable

								)  Randall A. Bono, 

	Defendants-Appellees.				)  Judge, presiding.  

___________________________________________________________________________

Opinion Filed:	June 28, 2001

___________________________________________________________________________

Justices:	Honorable Terrence J. Hopkins, J.

	Honorable Gordon E. Maag, J.

	Honorable Philip J. Rarick, J.

	Concur

___________________________________________________________________________

Attorney	Patricia A. Zimmer, George Ripplinger & Associates, 2215 West Main,

for	Belleville, IL  62226

Appellants	

___________________________________________________________________________

Attorney	Joseph B. McDonnell, Greensfelder, Hemker & Gale, 33 Bronze 

for	Pointe, Belleville, IL  62226

Appellees	

___________________________________________________________________________