Opinion
1-22-1796
06-30-2023
MONICA ANDERSON, Plaintiff-Appellant, v. SULLIVAN, TAYLOR & GUMINA, P.C., an Illinois professional corporation, and JOSEPH EMMERTH, individually, Defendants-Appellees.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 21 L 9477 Honorable James E. Snyder, Judge Presiding.
JUSTICE HOWSE delivered the judgment of the court. Justices Ellis and Cobbs concurred in the judgment.
ORDER
HOWSE, JUSTICE
¶ 1 Held: We reverse the dismissal of the complaint as being time barred and remand the case for further proceedings; plaintiff pled facts which, if taken as true, demonstrate defendants fraudulently concealed their negligence from plaintiff, thereby tolling the statute of repose.
¶ 2 In 2021, plaintiff filed a complaint against her divorce attorneys for malpractice. The complaint alleged that, in 2011, when the judgment of dissolution was entered, the attorneys told plaintiff she would be eligible to receive death benefits from her former husband. In reliance on the advice that she would receive a death benefit, plaintiff waived other financial benefits. In 2020, plaintiff learned she was ineligible to receive death benefits. The circuit court dismissed plaintiff's complaint with prejudice, finding that the six-year statute of repose for claims against attorneys barred plaintiff's claim. We find that defendants have shown that the six-year repose period ordinarily would have fully run on plaintiff's claims, but defendants are not entitled to a dismissal of the action because plaintiff pled sufficient facts that, if proved, could establish fraudulent concealment which tolled the running of the statute of repose. For the following reasons, we reverse and remand for further proceedings.
¶ 3 BACKGROUND
¶ 4 Plaintiff Monica Anderson retained defendants Joseph Emmerth and the law firm Sullivan, Taylor &Gumina P.C. to represent her in her divorce case. Plaintiff was married to Owen Green who had a pension administered by the Elk Grove Village Firefighters' Pension Fund. The divorce case was resolved through a negotiated marital settlement agreement. One provision of the marital settlement agreement was intended to secure for plaintiff the right to receive a death benefit from the pension fund if plaintiff's ex-husband predeceased her.
¶ 5 Plaintiff alleges that Emmerth repeatedly informed her during the divorce proceedings that she could receive a death benefit from the pension if her husband died before her. Plaintiff alleges that the potential for receiving the death benefit was a material term to induce her to enter into the settlement agreement, and she claims that she agreed to forgo pursuing other consideration in the divorce with the understanding that she could receive the death benefit. During the prove-up hearing for the marital settlement agreement, Emmerth asked plaintiff to confirm that she understood that, "in the event that Owen predeceases you, you will receive surviving spouse's benefits?" Plaintiff answered "yes."
¶ 6 The martial settlement agreement was entered on July 27, 2011. Eight years later, in 2019, plaintiff's now-ex-husband became incapacitated, and she was appointed as the guardian of his person and his estate. In connection with her duties as his guardian, she contacted the Firefighters' Pension Fund to provide the information needed for the Fund to recognize her as Owen's guardian. While in contact with the pension administrator, plaintiff checked in about whether she would receive the death benefit if her ex-husband predeceased her. On or about March 5, 2020, the pension administrator informed plaintiff that only a surviving spouse or dependent could receive the death benefit and that Owen's pension benefits would cease upon his death.
¶ 7 Plaintiff contacted Emmerth after learning that she could not receive the death benefit. Plaintiff alleges that Emmerth told her during the divorce proceedings that he would file a qualified Illinois domestic relations order (QUILDRO) once the settlement agreement was entered to give effect to the provision of the settlement agreement entitling her to a death benefit from the pension fund. When plaintiff contacted Emmerth upon learning she was not set to receive a death benefit, she alleges that she asked about the QUILDRO and asked if the Illinois Pension Code precluded her from receiving a death benefit. Plaintiff alleges that Emmerth told her that the whole purpose of the QUILDRO was to override the Pension Code so that she could receive the death benefit. Emmerth also allegedly informed plaintiff during that conversation that he would look into whether the QUILDRO had been filed.
¶ 8 On March 11, 2020, Emmerth sent plaintiff a QUILDRO to sign. He advised her to return the executed QUILDRO and stated that he would then have it filed with the court. Plaintiff promptly signed the QUILDRO and Emmerth filed it with the court on June 24, 2020.
¶ 9 On August 12, 2020, the pension administrator sent a letter to defendants informing them that a "former" spouse could not qualify as a "surviving spouse" for purposes of receiving the lump sum death benefit. The pension administrator informed defendants that the only benefit plaintiff could possibly receive from the pension was: if she was named as the beneficiary, there were no surviving children, and if her ex-husband died before exhausting his lifetime pension contributions. If those conditions are met, plaintiff could receive the balance of his pension contributions. The pension administrator, however, informed defendants that such a sequence of events "rarely occurs." Defendants forwarded the pension administrator's letter to plaintiff.
¶ 10 Plaintiff began to receive a benefit check from the pension each month which represents her share of the marital portion of Owen's pension contribution. However, plaintiff will not receive any payment for a death benefit, and she claims that, contrary to defendants' advice and assurances, she never could have received a death benefit from the pension. She alleges that she would have taken a different position in the divorce case but for defendants' negligent advice.
¶ 11 Plaintiff filed this legal malpractice case against defendants on September 24, 2021, seeking to recover the losses she sustained due to defendants' allegedly negligent legal representation. Plaintiff also stated in her complaint for malpractice that defendants should be estopped from asserting a limitations-period defense and that defendants fraudulently concealed their professional negligence from her so that she would not discover the erroneous advice. Following a dismissal without prejudice, plaintiff filed an amended complaint.
¶ 12 Defendants filed a motion to dismiss the amended complaint arguing that plaintiff's claims are barred by the statute of repose that governs claims against attorneys. See 735 ILCS 5/13-214.3(c) (West 2020). Defendants pointed out in their motion to dismiss that, under the statute of repose, negligence claims against attorneys are time barred after the expiration of six years from the date of the negligent act or omission. Therefore, defendants argue plaintiff's case is time barred because plaintiff filed this case approximately 10 years after the alleged negligence occurred.
¶ 13 After the motion to dismiss was fully briefed by the parties, the trial court held a hearing where the parties presented their arguments advancing their respective positions on the motion to dismiss. The trial court granted defendants' motion to dismiss and dismissed the operative complaint with prejudice. Plaintiff now appeals the dismissal of her amended complaint.
¶ 14 ANALYSIS
¶ 15 Plaintiff appeals the circuit court's dismissal of the operative complaint. Plaintiff's amended complaint was dismissed pursuant to section 2-619 of the Illinois Code of Civil Procedure which provides for the involuntary dismissal of a claim based upon certain defects or defenses. See 735 ILCS 5/2-619 (West 2020).
¶ 16 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint. 735 ILCS 5/2-619 (West 2020). The purpose of a section 2-619 motion to dismiss is to dispose of issues of law and easily proved issues of fact at the outset of the litigation. Jones v. Brown-Marino, 2017 IL App (1st) 152852, ¶ 20. Although a section 2-619 motion to dismiss admits the legal sufficiency of a complaint, it raises defects, defenses, or some other affirmative matter appearing on the face of the complaint or established by external submissions, that defeat the plaintiff's claim. Ball v. County of Cook, 385 Ill.App.3d 103, 107 (2008). The failure to file a claim within an applicable limitations period is one of the proper bases for dismissal under section 2-619. See 735 ILCS 5/2-619(a)(5) (West 2020). We review the trial court's decision to grant a motion to dismiss de novo. In re Marriage of Wojcik, 2018 IL App (1st) 170625, ¶ 17.
¶ 17 Under the Illinois Code of Civil Procedure, claims against attorneys that arise from an act or omission in providing professional services must be commenced within two years of when the cause of action accrues. 735 ILCS 5/13-214.3(b) (West 2020). This two-year period is the statute of limitations for claims against attorneys. Id. "The statute of limitations set forth in section 13-214.[3](b) incorporates the 'discovery rule,' which serves to toll the limitations period to the time when the plaintiff knows or reasonably should know of his or her injury." Snyder v. Heidelberger, 2011 IL 111052, ¶ 10 (citing Hester v. Diaz, 346 Ill.App.3d 550, 553 (2004)).
¶ 18 Because the statute of limitations incorporates discovery by the party who is wronged before the limitations period begins to run, the limitations period may not begin to run for several years after the negligent act or omission by the attorney took place. To counter the potential for liability in an unending duration, the legislature has also included a six-year statute of repose for claims against attorneys. See 735 ILCS 5/13-214.3(c) (West 2020).
¶ 19 Unlike a statute of limitations, which begins to run when a cause of action accrues, a statute of repose begins to run when a specific event occurs, regardless of whether an action has accrued. Snyder, 2011 IL 111052, ¶ 10. For purposes of the statute of repose at issue in this case, it begins to run on "the date on which the act or omission [in the provision of professional services] occurred." 735 ILCS 5/13-214.3(c) (West 2020). The six-year statute of repose for claims against attorneys begins to run as soon as the event creating the malpractice occurs. Mauer v. Rubin, 401 Ill.App.3d 630, 639 (2010). The statute of repose terminates the possibility of liability for an attorney regardless of the potential plaintiff's knowledge concerning his cause of action. Goodman v. Harbor Market, Ltd., 278 Ill.App.3d 684, 690 (1995). The purpose of a statute of repose for legal malpractice operates to curtail the long tail of liability that may result from the discovery rule. Snyder, 2011 IL 111052, ¶ 10.
¶ 20 In this case, the act in the provision of professional services that forms the basis of plaintiff's alleged injury was defendants' advice that plaintiff could receive a death benefit from her ex-husband's pension. As plaintiff alleges in the operative complaint, her claim is based on defendants "erroneously advising her that she could receive a death benefit from the Pension if Owen predeceased her." The statute of repose began to run on plaintiff's claim when the marital settlement agreement was approved and entered by the court. The alleged negligence was complete at the time the marital settlement agreement was entered-plaintiff relied on the allegedly negligent advice and fixed her legal rights in accordance with that advice.
¶ 21 The defendants argue the period of repose began to run when the judgment of dissolution was entered. The principal case relied upon by defendants, Mauer v. Rubin, 401 Ill.App.3d 630 (2010), is instructive, and plaintiff's attempts to distinguish the case are unavailing. In Mauer, the plaintiff hired the defendants to represent him in divorce proceedings. Id. at 634. The marital property for plaintiff and his wife consisted of several businesses that carried various debts. Id. The defendants drew up the marital settlement agreement but failed to include a complete list of the debts. Id. As a consequence, plaintiff ended up being left with a larger share of the parties' debts after he signed the agreement in reliance on defendants' representations that all aspects of the settlement had been properly documented therein. Id. Judgment was entered on the parties' marital settlement agreement. Id.
¶ 22 The plaintiff in Mauer alleged that he informed defendants about their mistake and defendants promised to correct the error. Id. at 634-35. The defendants, however, failed to timely file a motion to vacate the order. Id. at 635. The plaintiff filed an action for legal malpractice, and defendants responded with motions to dismiss. Id. at 636. The defendants argued that the plaintiff's claims were barred by the six-year statute of repose because the dissolution judgment was entered on June 18, 2001, and the plaintiff's complaint was not filed until October 1, 2007. Id. The plaintiff argued that his claims were timely because the defendants continued to perform work on the matter after the judgment was entered and assured him after the judgment that they would correct the error. Id. The trial court found that the repose period began to run on the date the judgment in the divorce case was entered. Id. at 637-38. We affirmed the dismissal of the plaintiff's claims, finding them to be time barred. Id. at 644-45.
¶ 23 We explained in Mauer that the statute of repose began to run on the date the judgment was entered in the divorce case because the harm to the plaintiff's interests "was done once the judgment of dissolution incorporating the allegedly defective Agreement was entered." Id. at 642. We explained that all the subsequent events alleged by the plaintiff in Mauer could be traced to the entry of that judgment. Id. In this case, like in Mauer, the statute of repose began to run at the time the judgment of dissolution incorporating the allegedly defective Agreement was entered.
¶ 24 Plaintiff urges a contrary result and argues that the period of repose began to run on the last date on which the attorney performed work involved in the alleged negligence. She argues that defendants performed work involved in the alleged negligence up to June 24, 2020-the date defendants caused the QUILDRO to be entered. Plaintiff contends here, and alleges in the operative complaint, that filing the QUILDRO was a task that needed to be completed for defendants to complete their representation in the divorce case and, until the QUILDRO was finished and filed, defendants' representation of plaintiff did not end.
¶ 25 Relying on Hermansen v. Riebandt, 2020 IL App (1st) 191735, ¶ 90 and Trogi v. Diabri &Vicari, P.C., 362 Ill.App.3d 93, 96 (2005) plaintiff contends that defendants' preparation and filing of the QUILDRO was a material element of the representation. She contends that the portion of the marital settlement judgment affording her the death benefit would not be effective until the QUILDRO was filed. Therefore, she argues that the representation did not end when the judgment was entered in the divorce case and instead defendants' duty of representation and their obligations under their representation of plaintiff remained pending until the QUILDRO was filed. Thus, plaintiff contends, the statute of repose could not begin to run until the QUILDRO was filed because that event was the "last act of representation upon which the malpractice is founded."
¶ 26 Hermansen is not helpful to plaintiff here. In Hermansen, the attorneys represented the plaintiffs in a commercial transaction and advised the plaintiffs to sign papers that authorized a mortgage company to attach a $99,000 lien on the plaintiffs' personal residence. When the plaintiffs learned about the lien on their personal residence, they utilized the same attorney to file a declaratory judgment complaint against the lien holder to remove the lien. The lien holder offered to settle and release the mortgage lien for $49,500 or half the amount due. Plaintiffs' attorneys advised plaintiffs not to settle, arguing the lien was invalid. Eventually, in 2015, the trial court entered judgment on the lien in an amount of $181,000, far in excess of the settlement offer.
¶ 27 In 2016, more than 6 years after being advised to sign the papers which authorized the lien, plaintiff filed a negligence suit against his attorneys. Defendants filed a motion to dismiss in response based on the statute of repose and limitation grounds. The trial court court granted the motion to dismiss. However, the dismissal was reversed on appeal.
¶ 28 Contrary to plaintiff's argument, the Hermansen court did not rule that the subsequent legal work by the attorneys tolled the statute of repose as it pertained to their 2009 error. The court ruled the negligent conduct which resulted in a judgment against the attorneys was the advice given to reject the settlement offer in the declaratory judgment case which resulted in a judgment several times greater than the settlement offer. The court held since the judgment in the declaratory judgment case and the negligent settlement advice occurred in 2015, the 2016 malpractice complaint was not barred by the statute of repose.
¶ 29 In Trogi, 362 Ill.App.3d at 96, the plaintiff retained the defendant attorney to represent him in the purchase of real estate owned by his daughter in October 1998. The property was in foreclosure. The plaintiff advanced the funds to save the property from foreclosure and in exchange the daughter executed a quitclaim deed to the plaintiff. The property was located in Cook County, but the attorney recorded the deed in Lake County. In December 1998, the attorney mailed the recorded deed to the plaintiff in Arizona, stating the deed was recorded in Lake County. As a result of the deed being filed in the wrong county, plaintiff's interest did not appear of record.
¶ 30 In 2003, the plaintiff's daughter executed a warranty deed to third parties and the deed was recorded in Cook County. In November 2004, plaintiff filed a complaint for negligence against his attorney alleging he lost $140,000 as a result of the negligence in recording the deed in the wrong county. The attorney argued the plaintiff's claims were barred by the statute of repose because the erroneous recording of the deed occurred in October 1998 and the complaint was filed in November 2004, more than 6 years later. The court held that, although the initial negligence occurred in November 1998, there were additional negligent acts in December 1998: "[s]pecifically, after the Lake County recorder returned the deed to defendant, defendant failed to review the filing and recognize the error before delivering the completed work product to plaintiff." Trogi does not support the argument that there was continuous representation raised by plaintiff in this case. The Trogi court stated its decision did not run contrary to Illinois law, rejecting the continuous representation rule in legal malpractice cases because the last act of negligence alleged was in December 1998 when the defendant failed to inspect the recorded deed and presented it to plaintiff. Therefore, the November 2004 complaint was not time barred by the statute of repose.
¶ 31 The plaintiff in Mauer made a similar argument to plaintiff here, contending that the defendants continued to perform work on the case after the judgment and even assured him that they would correct the mistake. Mauer, 401 Ill.App.3d at 639. In Mauer, we rejected the plaintiff's argument and explained that, even though there was activity on the part of the defendants after the date the judgment was entered, that activity did not change the fact that a final judgment had been rendered in the plaintiff's case, and there were no facts alleged that would tend to establish that the defendants' actions compounded the damage caused by that final judgment. Id. at 644-45; see also Fricka v. Bauer, 309 Ill.App.3d 82, 84 (1999) (the period of repose for legal malpractice actions is not tolled by the attorney's continuing duty to correct any defect or omission related to the work product once the work product is complete).
¶ 32 Here, the negligence was complete at the time the marital settlement agreement and judgment of dissolution was entered. The additional acts relating to the QUILDRO do not affect the date that the period of repose began to run because those acts could not have had any impact on plaintiff's rights and the alleged damage was already done. No work on the QUILDRO could have changed whether plaintiff was entitled to the death benefit. The malpractice claim is not founded on any professional services rendered in regard to the QUILDRO. In terms of establishing plaintiff's legal rights, the preparation and filing of the QUILDRO was a futile step and did not serve to continue or restart the period at which the alleged negligence occurred or the point at which the period of repose began to run.
¶ 33 Plaintiff does not allege there was any negligence in the preparation or filing of the QUILDRO itself. She instead complains that the QUILDRO did not provide her with the death benefit she intended to receive when she agreed to the marital settlement. Regardless of whether defendants drafted the best QUILDRO imaginable, the QUILDRO could not have changed plaintiff's rights. Plaintiff's injury from the alleged malpractice is not receiving the death benefit for which she claimed she bargained before she entered into the settlement agreement. Once the settlement agreement was executed and entered, plaintiff admits that she could never have received the death benefit regardless of defendants' work on the QUILDRO. As in Mauer, the actions of plaintiff's counsel subsequent to the dissolution judgment did not exacerbate her injury-her sole injury has continued to have been caused by the same acts since the day the dissolution judgment was entered. The statute of repose began to run no later than the date the judgment in the divorce case was entered on July 27, 2011, so plaintiff's malpractice claim filed on September 24, 2021, is ostensibly barred by the statute of repose.
¶ 34 Equitable Estoppel
¶ 35 We next address plaintiff's arguments and allegations that defendants are equitably estopped from raising the statute of repose.
¶ 36 A defendant in a legal malpractice case may be equitably estopped from raising the statute of repose as a defense if the defendant's own actions would make the application of the defense unjust. Hester v. Diaz, 346 Ill.App.3d 550, 556 (2004).
"A party claiming estoppel must demonstrate that: (1) the other person misrepresented or concealed material facts; (2) the other person knew at the time he or she made the representations that they were untrue; (3) the party claiming
estoppel did not know that the representations were untrue when they were made and when that party decided to act, or not, upon the representations; (4) the other person intended or reasonably expected that the party claiming estoppel would determine whether to act, or not, based upon the representations; (5) the party claiming estoppel reasonably relied upon the representations in good faith to his or her detriment; and (6) the party claiming estoppel would be prejudiced by his or her reliance on the representations if the other person is permitted to deny the truth thereof." DeLuna v. Burciaga, 223 Ill.2d 49, 82-83 (2006).
It is not necessary that the defendant intentionally mislead or deceive the plaintiff, or even intend by its conduct to induce delay. Koczor v. Melnyk, 407 Ill.App.3d 994, 1000 (2011). Rather, all that is necessary for invocation of the doctrine of equitable estoppel is that the plaintiff reasonably rely on the defendant's conduct or representations in forbearing suit. Id.
¶ 37 Plaintiffs claim of equitable estoppel must fail because one of the elements of equitable estoppel is not present. Plaintiff alleges that defendants were unaware of the erroneous legal advice until they received the letter from the pension administrator explaining that plaintiff was not entitled to the death benefit she sought. Knowledge of the erroneous advice is a required element to prove equitable estoppel. Id. at 1000-01. Because plaintiff alleges defendants were unaware of the erroneous advice until after the expiration of the six-year period of repose, one of the elements to establish estoppel is not present.
¶ 38 Plaintiff's allegations fail to demonstrate that defendants are equitably estopped from raising the statute of repose. Plaintiff expressly alleges in her attempt to make a claim for equitable estoppel that defendants were unaware of the erroneous advice until 2020-a point at which the period of repose had already expired. Additionally, plaintiff does not allege any acts or communications by defendants following the entry of the divorce judgment that would have caused her to forbear filing suit.
¶ 39 Plaintiff acknowledges that she did not meet all the requirements for equitable estoppel, but she argues that not all elements need to be met in every case (citing Hester, 346 Ill.App.3d at 556). However, plaintiff does not meet even the most basic elements for a claim of equitable estoppel because she does not allege in making her claim for estoppel that defendants knew about the erroneous advice, nor does she allege that defendants did anything or told her anything to cause her to forgo or delay filing suit. See Koczor, 407 Ill.App.3d at 1000 (the fatal flaw in the plaintiffs' argument is that they did not allege the defendants made any representations to them that they relied upon to refrain from filing their claim for legal malpractice). As in Koczor, plaintiff here alleges in her equitable estoppel claim that defendants "did not know of [their] error before [plaintiff] contacted [them]." Id. She similarly does not allege any facts that would show that defendants did anything to influence her inaction in filing a malpractice claim sooner. Accordingly, plaintiff has failed to allege facts that could equitably estop defendants from invoking the statute of repose.
¶ 40 Fraudulent Concealment
¶ 41 Plaintiff also endeavored to plead facts that would demonstrate that defendants fraudulently concealed their negligence and fraudulently concealed the existence of her claim for legal malpractice. Fraudulent concealment is grounds for tolling statutes of repose, including the statute of repose for legal malpractice. DeLuna, 223 Ill.2d at 72-74. Although a statute of repose does not normally incorporate the discovery rule, a statute of repose, nonetheless, can be tolled if a plaintiff does not discover his claim due to fraudulent concealment on the part of the defendant. Wisniewski v. Diocese of Belleville, 406 Ill.App.3d 1119, 1151 (2011).
¶ 42 Under section 13-215 of the Code of Civil Procedure, "[i]f 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 2020). To state a claim for fraudulent concealment, a plaintiff must allege the following elements: "(1) the defendant concealed a material fact under circumstances that created a duty to speak; (2) the defendant intended to induce a false belief; (3) the plaintiff could not have discovered the truth through reasonable inquiry or inspection, or was prevented from making a reasonable inquiry or inspection, and justifiably relied upon the defendant's silence as a representation that the fact did not exist; (4) the concealed information was such that the plaintiff would have acted differently had he or she been aware of it; and (5) the plaintiff's reliance resulted in damages." Abazari v. Rosalind Franklin University of Medicine &Science, 2015 IL App (2d) 140952, ¶ 27 (quoting Bauer v. Giannis, 359 Ill.App.3d 897, 902-03 (2005)).
¶ 43 Ordinarily, to toll the statute of repose on the basis of fraudulent concealment, the plaintiff must show "affirmative acts or representations designed to prevent discovery of the cause of action or to lull or induce a claimant into delaying the filing of his claim." Rajcan v. Donald Garvey &Assocs., Ltd., 347 Ill.App.3d 403, 407 (2004). However, when the defendant stands in the position of a fiduciary to the plaintiff, as in the context of the attorney-client relationship, a plaintiff may successfully proceed on a claim of fraudulent concealment when the attorney "fails to fulfill his duty to disclose material facts concerning the existence of a cause of action." DeLuna, 223 Ill.2d at 77-78.
¶ 44 In support of her claim that the statute of repose should be tolled by fraudulent concealment, plaintiff makes the following allegations beginning at paragraph 59 of the amended complaint, which we must accept as true.
"59. STG and Emmerth became aware of Emmerth's negligent advice to Monica subsequent to the entry of the Judgment.
60. Emmerth and STG knew that, because of the nature of Emmerth's negligent advice, Monica:
a. had no expectation of receiving any benefit from the Pension for so long as Owen was alive;
b. had no cause for concern that she was not receiving any payments from the Pension; and
c. had no reason to inquire as to Emmerth's progress in entering the QUILDRO.
61. Emmerth and STG knew that tendering a QUILDRO to the Pension administrator would reveal Emmerth's negligence to Monica.
62. Emmerth and STG knowingly and deliberately concealed and withheld from Monica the fact of Emmerth's negligent advice.
63. Emmerth and STG knowingly and deliberately delayed in preparing and submitting a QUILDRO so as to conceal Emmerth's negligent legal advice.
64. Emmerth and STG knowingly and deliberately concealed and withheld from Monica the fact that Emmerth did not prepare and submit a QUILDRO.
65. Monica did not know about and had no reasonable reason to discover Emmerth's and STG's malfeasance until March 2020 at the earliest.
66. Emmerth and STG continued and perpetuated the knowing and deliberate pattern of concealment even after Monica questioned Emmerth about it in March 2020.
67. Emmerth and STG continued and perpetuated the knowing and deliberate pattern of concealment even after Monica questioned Emmerth about it in August 2020.
68. Emmerth's and STG's acts and omissions as aforesaid were done knowingly and intentionally with the express purpose of concealing their negligence from Monica from 2011 through 2020."
¶ 45 As noted above, plaintiff argues that, following the entry of the judgment in the divorce case, defendants realized that they had provided negligent representation by advising plaintiff she could receive the death benefit. Plaintiff alleges that upon coming to the realization about their provision of negligent legal advice, defendants decided not to prepare and tender the QUILDRO because they knew it would reveal their negligence. Plaintiff alleges that defendants informed her that they would file the QUILDRO after the judgment in the divorce case was entered and she never had any reason to suspect that defendants did not do so. Plaintiff concludes that the delay in preparing and filing the QUILDRO was a purposeful design to conceal the negligent advice they had given during the divorce case. Plaintiff also alleges that the perpetuation of the fraudulent concealment continued when defendants received a letter from the pension administrator informing them that plaintiff was not entitled to receive a death benefit from the pension. Plaintiff alleges that defendants falsely represented that they did not know whether a QUILDRO was filed and only upon plaintiff's inquiries was she able to discover what defendants were hiding, that they had wrongly advised her, in toto, that she could secure the death benefit.
¶ 46 At this stage, we take as true plaintiff's allegation that defendants knew about the erroneous advice and purposely decided not to prepare the QUILDRO so that plaintiff would not discover the mistaken legal advice and not pursue a legal malpractice claim. Therefore, we conclude that plaintiff has pled sufficient facts to go forward on a claim that fraudulent concealment tolled the statute of repose.
¶ 47 Defendants argue that plaintiff's allegation about defendants acting purposefully in concealing their negligence is contradicted by paragraph 54(b) of count I in her complaint in which she alleged that defendants were unaware of the erroneous advice prior to receiving the letter from the pension administrator. Defendants point out that in the preamble in Count II of the operative complaint plaintiff incorporated the allegations of all previous paragraphs of the complaint into the fraudulent concealment count by reference.
¶ 48 Paragraph 54(b) in Count I of the amended complaint which states defendants were unaware of the erroneous advice contradicts Count II which alleges defendants knew the death benefits were not available to plaintiff, but defendants concealed this knowledge from plaintiff. Plaintiff states in Count II that she expressly pleaded her fraudulent concealment count in the alternative to her other claims. She erroneously incorporated the allegations of paragraph 54(b) into her count alleging fraudulent concealment, which is inconsistent with her claim for fraudulent concealment. Defendants were apparently not confused by the error because defendants responded to the allegations on the merits. No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet. 735 ILCS 5/2-612(b) (West 2020). While we agree that the specific allegation pointed out by defendants is improper in the section of the amended complaint pleading fraudulent concealment, defendant was not confused and the pleading error does not entitle defendants to a dismissal of the claim with prejudice. McCarthy v. Allstate Insurance Co., 76 Ill.App.3d 320, 323-24 (1979) (the provisions of the Code of Civil Procedure dealing with pleadings are intended to permit controversies to be determined according to substantial justice between the parties and not according to the technicalities or niceties of pleading).
¶ 49 We hold plaintiff's express, non-incorporated allegations in paragraphs 59-68 of her amended complaint, if taken as true, are sufficient to establish fraudulent concealment by defendants which would toll the running of the statute of repose. Therefore, plaintiff's case can proceed. On remand, plaintiff can amend her complaint to remove the inconsistent incorporated allegations.
¶ 50 Defendants argue that plaintiff fails to demonstrate that they had a duty to speak based on the existence of the fiduciary relationship. Defendants contend that plaintiff cannot use their silence between 2011 and 2020 as a basis for claiming fraudulent concealment.
¶ 51 However, an attorney cannot refrain from performing an act inherent in the representation as part of a plan to conceal the existence of the negligence. See Cunningham v. Huffman, 154 Ill.2d 398, 407 (1993) (if the person alleged to be negligent purposely conceals the discovery of the negligence, the statute of repose is not triggered). Plaintiff alleges that defendants failed to perform a promised act that was within the scope of the representation-filing the QUILDRO- because they knew it would reveal their negligence to her. Plaintiff argues that defendants consciously avoided taking certain steps required by the scope of their representation so as to prevent her from finding out about her injury. If plaintiff is able to prove all the allegations she makes in her complaint related to defendants' knowledge and motivations for not filing the QUILDRO, the statute of repose would not bar plaintiff's claims.
¶ 52 Based on the foregoing, plaintiff is entitled to go forward on her claim for legal malpractice. If plaintiff can prove her allegations relating to the fraudulent concealment of her claim, her legal malpractice claim would not be barred by the statute of repose.
¶ 53 CONCLUSION
¶ 54 Accordingly, we reverse and remand for further proceedings.
¶ 55 Reversed and remanded.