{ "id": 35436, "name": "DORIS ZELENKA, Plaintiff-Appellant, v. THOMAS J. KRONE et al., Defendants-Appellees", "name_abbreviation": "Zelenka v. Krone", "decision_date": "1997-11-26", "docket_number": "No. 3\u201497\u20140279", "first_page": "248", "last_page": "253", "citations": [ { "type": "official", "cite": "294 Ill. App. 3d 248" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "659 N.E.2d 56", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "where the plaintiff had no previous knowledge of her attorney's negligence, her cause of action for legal malpractice accrued when she had knowledge of additional attorney fees" } ], "opinion_index": 0 }, { "cite": "276 Ill. App. 3d 590", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927619 ], "year": 1995, "pin_cites": [ { "parenthetical": "where the plaintiff had no previous knowledge of her attorney's negligence, her cause of action for legal malpractice accrued when she had knowledge of additional attorney fees" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/0590-01" ] }, { "cite": "421 N.E.2d 869", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "874" } ], "opinion_index": 0 }, { "cite": "85 Ill. 2d 146", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469943 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0146-01" ] }, { "cite": "633 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "158 Ill. 2d 240", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780293 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/158/0240-01" ] }, { "cite": "430 N.E.2d 976", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "88 Ill. 2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083558 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/88/0407-01" ] }, { "cite": "617 N.E.2d 858", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "247 Ill. App. 3d 1015", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2930544 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/1015-01" ] }, { "cite": "585 N.E.2d 1032", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "146 Ill. 2d 175", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597526 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/146/0175-01" ] }, { "cite": "665 N.E.2d 500", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "279 Ill. App. 3d 930", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75415 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0930-01" ] }, { "cite": "633 N.E.2d 1003", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "a trial court may not consider arguments or matters unsupported by affidavits" } ], "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 338", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5371590 ], "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "a trial court may not consider arguments or matters unsupported by affidavits" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0338-01" ] }, { "cite": "658 N.E.2d 1261", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "276 Ill. App. 3d 720", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 927676 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/276/0720-01" ] } ], "analysis": { "cardinality": 551, "char_count": 10384, "ocr_confidence": 0.762, "pagerank": { "raw": 1.4667263307055935e-07, "percentile": 0.6584007407381666 }, "sha256": "612e8378381dd3d4849c91bffa13ed8aedcba2681297070e11eb94216ca8bb1e", "simhash": "1:80a75dd18fc51454", "word_count": 1766 }, "last_updated": "2023-07-14T15:05:51.326352+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DORIS ZELENKA, Plaintiff-Appellant, v. THOMAS J. KRONE et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE BRESLIN\ndelivered the opinion of the court:\nOn appeal, we are asked to determine whether section 13\u2014 214.3(d) of the Limitations Act (Act) (735 ILCS 5/13 \u2014 101 et seq. (West 1996)) applies to a cause of action for legal malpractice when the suit is based on an invalid inter vivas trust and the cause of action accrued after the client\u2019s death. The second issue we must determine is whether the applicable statute of limitations precludes the beneficiary\u2019s claim. We hold that section 13 \u2014 214.3(d) only applies to probate assets and it does not apply to the inter vivas trust in the instant case. We also hold that the two-year statute of limitations under section 13 \u2014 214.3(b) is not a bar to the beneficiary\u2019s cause of action. Accordingly, we reverse and remand.\nFACTS\nThe defendant, Thomas Krone, drafted an inter vivas trust for Ernest Zelenka in which Ernest named his wife, plaintiff Doris Zelenka, as a co-beneficiary to \"one-half 07 2) of all real estate held under the terms of this trust.\u201d Krone also prepared a will for Ernest that left the residuary of Ernest\u2019s estate to his son and nephew. Under the terms of the trust, any property owned by Ernest that was not otherwise disposed of pursuant to the trust passed to his estate and then through the residuary clause of his will. Doris\u2019s attorney, David Svec, reviewed the trust and advised Doris that it was a valid disposition.\nErnest died in April of 1993, and his will was admitted to probate on July 28, 1993. The publication of claims that was issued by the estate indicated that all claims had to be filed by January 28, 1994. On December 27, 1993, Ernest\u2019s son and nephew, acting as beneficiaries of the estate, notified the trustee of the inter vivas trust that Doris took no interest as a beneficiary of the trust. They claimed that the trust improperly characterized Doris\u2019s interest in \"real estate\u201d rather than a \"beneficial interest in real estate.\u201d Doris\u2019s attorney, William Grossmann,- received a copy of this notification and on December 30, 1993, sent a letter to Krone. It informed Krone that the trust\u2019s validity was being questioned and asked him to contact Grossmann immediately. On February 4, 1994, Doris entered an agreement with Grossmann to retain his services for any claims against Ernest\u2019s estate.\nOn January 4, 1996, Doris filed a legal malpractice claim against Krone and Svec. Krone and Svec moved to dismiss the complaint pursuant to section 2 \u2014 619 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 619 (West 1996)), asserting that the six-month statute of repose in section 13 \u2014 214.3(d) of the Act barred the cause of action. The court found that the cause of action accrued on December 30, 1993, and held that the suit was barred by the two-year statute of limitations found in section 13 \u2014 214.3(b) of the Act (735 ILCS 5/13\u2014 214.3(b) (West 1996)). Doris appeals.\nSTANDARD OF REVIEW\nA motion to dismiss admits all facts well pleaded in the plaintiffs complaint. Village of Riverwoods v. BG Ltd. Partnership, 276 Ill. App. 3d 720, 658 N.E.2d 1261 (1995). Where the grounds for dismissal do not appear on the face of the pleadings, a motion to dismiss pursuant to section 2 \u2014 619 of the Code of Civil Procedure should be supported by affidavits. 735 ILCS 5/2 \u2014 619 (West 1996); Waterford Executive Group, Ltd. v. Clark/Bardes, Inc., 261 Ill. App. 3d 338, 633 N.E.2d 1003 (1994). On appeal from an order dismissing a complaint, this court applies the de nova standard of review. Benbenek v. Chicago Park District, 279 Ill. App. 3d 930, 665 N.E.2d 500 (1996).\nANALYSIS\nThe primary issue on appeal is whether section 13 \u2014 214.3(d) governs this case when a beneficiary of an inter vivas trust files a legal malpractice claim against the trust\u2019s drafter after the settlor\u2019s death.\nIn general, the statute of limitations in a legal malpractice action is two years. 735 ILCS 5/13 \u2014 214.3(b) (West 1996). However, effective January 1, 1991, section 13 \u2014 214.3(d) of the Act established:\n\"(d) When 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 action may be commenced within 2 years after the date of the person\u2019s death unless letters of office are issued or the person\u2019s will is admitted to probate within that 2 year period, in which case the action must be commenced within the time for filing claims against the estate or a petition contesting the validity of the will of the deceased person, whichever is later, as provided in the Probate Act of 1975.\u201d 735 ILCS 5/13 \u2014 214.3(d) (West 1992).\nDoris contends that section 13 \u2014 214.3(d) is inapplicable because the malpractice claim involves an inter vivas trust and subsection (d) applies only to probate assets. We agree.\nIn the instant case, the applicability of subsection (d) turns on whether 13 \u2014 214.3(d) applies only to those claims involving assets subject to probate. When interpreting a statute, the primary function of this court is to ascertain and give effect to the intent of the legislature. Business & Professional People for the Public Interest v. Illinois Commerce Comm\u2019n, 146 Ill. 2d 175, 585 N.E.2d 1032 (1991). If the language of the statute is certain and unambiguous, it should be given effect without resorting to extrinsic aids for construction. Graunke v. Elmhurst Chrysler Plymouth Volvo, Inc., 247 Ill. App. 3d 1015, 617 N.E.2d 858 (1993).\nSubsection (d) specifically limits the time in which a person may commence an action to two years unless letters of office are issued or a will is admitted to probate. In addition, it states that it applies to actions commenced within the time for filing claims under the Probate Act. Thus, it is apparent from the language of section 13\u2014 214.3(d) that it applies only to legal malpractice actions related to claims against an estate or petitions contesting the validity of a will under the Probate Act. It does not pertain to those assets that are not subject to distribution in accordance with the Probate Act.\nThe instrument at issue is an inter vivas trust and is not subject to distribution under the terms and conditions of Ernest\u2019s probate estate. One of the primary objectives for creating a trust rather than a will is to remove the trust assets from the settlor\u2019s estate and avoid a probate proceeding. G. Bogert, Trusts & Trustees \u00a7 231, at 5-6 (rev. 2d ed. 1992). Accordingly, because the trust in the instant case is not a probate asset, section 13 \u2014 214.3(d) does not apply.\nThe next issue we must consider is whether Doris\u2019s claim is barred by the two-year statute of limitations under section 13\u2014 214.3(b) of the Act.\nA cause of action for legal malpractice accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful act of another. Knox College v. Celotex Corp., 88 Ill. 2d 407, 430 N.E.2d 976 (1981); Jackson Jordon, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 633 N.E.2d 627 (1994). \"When the plaintiff knew or should have known that an injury occurred and that it was wrongfully caused is generally a question of fact. Witherell v. Weimer, 85 Ill. 2d 146, 421 N.E.2d 869 (1981). Therefore, unless the facts are undisputed and only one conclusion can be drawn, the court may not rule on this question as a matter of law. Witherell, 85 Ill. 2d at 156, 421 N.E.2d at 874.\nDoris contends that her cause of action accrued when she signed the retainer agreement and began incurring attorney fees in an attempt to reform the instrument drafted by Krone. She argues that her cause of action is not time-barred by the statute of limitations under section 13 \u2014 214.3(b) because the claim did not accrue until February 4, 1994.\nThe defendants contend that the cause of action accrued, at the latest, on December 30, 1993, the date Doris\u2019s attorney sent a letter to defendant Krone inquiring about the terms of the trust. Because Doris filed her claim on January 4, 1996, they argue that her claim is time-barred. The defendants concede that the letter sent by Grossmann to Krone cannot be considered at this juncture because it was not properly authenticated. Nevertheless, the defendants contend that there is uncontradicted evidence in the record to support the trial court\u2019s finding of an accrual date of December 30, 1997.\nWe have reviewed the record carefully and must disagree with the defendants\u2019 contentions. Based on the record as it has evolved thus far, Doris\u2019s cause of action for legal malpractice accrued on the date when she incurred an obligation to pay legal fees due to Krone\u2019s and Svec\u2019s negligent conduct. See Goran v. Glieberman, 276 Ill. App. 3d 590, 659 N.E.2d 56 (1995) (where the plaintiff had no previous knowledge of her attorney\u2019s negligence, her cause of action for legal malpractice accrued when she had knowledge of additional attorney fees). Doris executed a retainer agreement and began incurring attorney fees on February 4, 1994, when she retained counsel to determine the validity of the inter vivas trust. Prior to that date it is unclear from the record whether Doris knew or should have known that the trust had been improperly drafted and approved. In addition, the record fails to provide any well-pied facts or properly submitted affidavits to support the trial court\u2019s finding that the accrual date was December 30, 1993. See Waterford Executive Group v. Clark/Bardes, Inc., 261 Ill. App. 3d 338, 633 N.E.2d 1003 (1994) (a trial court may not consider arguments or matters unsupported by affidavits). Thus, the court\u2019s finding that the case should be dismissed as a matter of law was erroneous. Accordingly, we hold that the trial court erred in finding that the complaint was not filed in time.\nFor the foregoing reasons, the judgment of the circuit court of Du Page County is reversed and remanded.\nReversed and remanded.\nHOMER and SLATER, JJ., concur.", "type": "majority", "author": "JUSTICE BRESLIN" } ], "attorneys": [ "Joseph E. Fitzgerald (argued), of Hinsdale, for appellant.", "Thomas P. McGarry, Stephen R. Swofford (argued), and Lisa L. Marre, all of Hinshaw & Culbertson, of Chicago, for appellee Thomas J. Krone.", "David M. Svec (argued), of Berwyn, for appellee David M. Svec." ], "corrections": "", "head_matter": "DORIS ZELENKA, Plaintiff-Appellant, v. THOMAS J. KRONE et al., Defendants-Appellees.\nThird District\nNo. 3\u201497\u20140279\nOpinion filed November 26, 1997.\nModified on denial of rehearing February 19, 1998.\nJoseph E. Fitzgerald (argued), of Hinsdale, for appellant.\nThomas P. McGarry, Stephen R. Swofford (argued), and Lisa L. Marre, all of Hinshaw & Culbertson, of Chicago, for appellee Thomas J. Krone.\nDavid M. Svec (argued), of Berwyn, for appellee David M. Svec." }, "file_name": "0248-01", "first_page_order": 266, "last_page_order": 271 }