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Appellate Court Date: 2022.08.04
14:33:55 -05'00'
Rojo v. Tunick, 2021 IL App (2d) 200191
Appellate Court RENE ROJO, Plaintiff-Appellant, v. JAMES D. TUNICK,
Caption Defendant-Appellee.
District & No. Second District
No. 2-20-0191
Filed September 29, 2021
Decision Under Appeal from the Circuit Court of Du Page County, No. 18-L-1211; the
Review Hon. David E. Schwartz, Judge, presiding.
Judgment Cause remanded.
Counsel on Rene Rojo, of Robinson, appellant pro se.
Appeal
No brief filed for appellee.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with
opinion.
Presiding Justice Bridges and Justice Brennan concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff, Rene Rojo, retained defendant, James D. Tunick, to represent him in a criminal
case. Defendant withdrew as plaintiff’s counsel, and the case eventually went to a jury trial,
resulting in defendant’s conviction. Afterward, plaintiff sued defendant for legal malpractice,
claiming in his pro se amended complaint that defendant breached in two respects the fiduciary
duty he owed to plaintiff as a client. First, defendant provided deficient representation, leading
to plaintiff’s conviction. Second, defendant withdrew before the completion of the case,
forcing plaintiff to pay for new counsel and refusing to refund any of plaintiff’s fees. Plaintiff
asked the trial court to appoint counsel to represent him in the legal malpractice action. The
court declined to appoint counsel and granted defendant’s motion to dismiss plaintiff’s
amended complaint. There are three issues on appeal: (1) whether the trial court should have
appointed counsel to represent plaintiff in his legal-malpractice action, (2) whether a criminal
defendant who brings a legal-malpractice action against his criminal defense attorney must
always allege that he is “actually innocent” of the criminal charges on which his attorney
represented him, and (3) when a cause of action for legal malpractice accrues. We determine
that (1) plaintiff was not entitled to appointed counsel for his legal malpractice case, (2) a
criminal defendant must allege actual innocence for a legal-malpractice claim asserting that
his attorney’s deficient performance led to his conviction but need not so allege for a legal-malpractice claim based on a fee dispute, and (3) a legal-malpractice claim does not accrue
until the client incurs damages because of the attorney’s breach. Accordingly, we affirm in
part, reverse in part, and remand for further proceedings.
¶2 I. BACKGROUND
¶3 In May 2014, plaintiff retained defendant, a criminal defense attorney, to defend him
against various drug and weapon offenses. While representing plaintiff, defendant filed
numerous pretrial motions and successfully moved to dismiss two of the charges against
plaintiff.
¶4 In September 2015, after plaintiff’s relationship with defendant had deteriorated, defendant
moved to withdraw. Plaintiff objected. He agreed that the relationship had deteriorated; “[t]he
only reason [he] want[ed defendant] on the case [was] because [he] … paid [defendant].” The
parties discussed whether, if defendant withdrew, plaintiff was entitled to any type of refund.
The following exchange was had on that point:
“THE COURT: Did you accept a flat fee for this case?
[DEFENDANT]: There was a flat fee, yes.
THE COURT: All right. Is there a refund that’s due to Mr. Rojo?
[DEFENDANT]: Judge, we’ve had evidentiary hearings about venue, two counts
have been dismissed.
THE COURT: I didn’t ask you to explain it; I just asked if there is.
[DEFENDANT]: I don’t believe so.
THE COURT: Because that impacts whether or not he’s able to hire another
attorney.
[DEFENDANT]: Judge, I’ll have to discuss that with his wife ….
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THE COURT: All right. But you charged him for start to finish. You’re leaving
before it’s finished. He needs to hire another attorney. And he’s saying he doesn’t want
you to be off the case because he’s paid you to complete the case.”
¶5 On September 16, 2015, the trial court granted defendant’s motion to withdraw. Plaintiff
then retained another attorney, the case proceeded to a jury trial, plaintiff was convicted of one
of the remaining drug offenses, and the court sentenced him to 16 years’ imprisonment.
¶6 In October 2018, plaintiff filed a pro se complaint against defendant for legal malpractice.
Plaintiff asserted that his “[c]ivil complaint[ ]” was “based on [t]ort, [c]ontract, or otherwise
[l]egal [m]alpractices [sic] by the [d]efendant in the course of employment.” Plaintiff alleged
that (1) he and his wife retained the services of defendant, (2) defendant agreed to represent
plaintiff until his criminal case was resolved, (3) defendant and plaintiff’s wife signed a
contract for this representation, to which plaintiff consented, and (4) defendant withdrew
before plaintiff’s case was resolved. Plaintiff alleged that, in withdrawing before the case was
completed, defendant breached his fiduciary duty to plaintiff.
¶7 Plaintiff asserted that, because defendant intentionally breached his fiduciary duty, plaintiff
was not required to prove actual innocence in the criminal case. As support, plaintiff cited
Morris v. Margulis, 307 Ill. App. 3d 1024 (1999).
¶8 Several months later, plaintiff asked the trial court to appoint counsel to represent him in
the action. The trial court denied plaintiff’s request. Because plaintiff failed to serve defendant
with his complaint, the court continued the case.
¶9 Plaintiff eventually served defendant, and then defendant filed two motions to dismiss, one
under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2018))
and the other under 2-619 of the Code (id. § 2-619).
¶ 10 In the section 2-615 motion, defendant argued that plaintiff failed to allege either (1) any
breach of duty that was a proximate cause of injury to defendant or (2) that he was actually
innocent of the criminal case charges.
¶ 11 In the section 2-619 motion, defendant asserted that plaintiff failed to bring his suit within
the two-year limitations period for legal malpractice actions. Id. § 13-214.3(b) (two-year
limitations period); id. § 2-619(a)(5) (authorizing dismissal where the action was not brought
within the time limited by law). Defendant alleged that three years passed from the date he
withdrew from the criminal case (September 16, 2015) to the date plaintiff filed his complaint
(October 23, 2018).
¶ 12 The trial court dismissed plaintiff’s complaint without prejudice and granted plaintiff time
to file an amended complaint.
¶ 13 Plaintiff filed an amended pro se complaint, captioned “Amended Complaint of Legal
Malpractice.” Plaintiff alleged that defendant, as plaintiff’s attorney in the criminal matter,
owed plaintiff a fiduciary duty and that defendant breached that duty. The complaint was not
divided into separate counts, but there were two distinct breach-of-fiduciary-duty claims.
¶ 14 For the first claim, plaintiff alleged as follows. He retained defendant to represent him in
his criminal case. Defendant drew up a contract memorializing the terms, to which plaintiff
and his wife agreed. Defendant advised plaintiff that he would “carry out his contract to the
fullest” and “complete the [p]laintiff’s criminal case.” Per the parties’ contract, plaintiff and
his wife paid defendant $10,000 for his services. Later, defendant filed a motion to withdraw
as plaintiff’s counsel. In support of the motion, defendant claimed that his relationship with
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plaintiff had become antagonistic to the point that he could no longer effectively represent
plaintiff. At the hearing on the motion to withdraw, in answer to the trial court’s questions,
defendant stated that he had charged plaintiff a flat fee for the representation and that, in
defendant’s view, plaintiff was not entitled to a refund. The trial court allowed defendant to
withdraw, and defendant did not refund any part of the $10,000. Additionally, plaintiff paid
new counsel $16,000 to $18,000 to represent him going forward.
¶ 15 For his second breach-of-fiduciary-duty claim, plaintiff alleged that, during the time
defendant served as his counsel, his representation was deficient. First, defendant “would not
communicate with the [p]laintiff concerning his case or promptly complying [sic] with the
plaintiff’s requests.” Second, defendant “did not fully investigate the [p]laintiff’s case.”
Plaintiff specifically alleged that defendant failed to discover that, although plaintiff was
charged with conspiring with “Mr. Wallace” to sell drugs, Mr. Wallace was actually a paid
informant for the State. If defendant had ascertained this fact, he would have realized that
plaintiff could not be charged with conspiring with Mr. Wallace, because a State informant
cannot be a coconspirator. Also, defendant did not investigate all deals that the State made with
its witnesses. Third, defendant failed to obtain certain investigative documents. Fourth,
defendant had plaintiff pay $2000 for a private investigator, “who did nothing in [the] case.”
Plaintiff alleged that, if defendant had “researched the [p]laintiff’s case, the outcome would
have been different.”
¶ 16 As in the original complaint, plaintiff cited Morris and asserted that, because defendant
“wilfully and intentionally” breached his fiduciary duty, plaintiff was not required to prove
that he was actually innocent of the charges in the criminal case. Plaintiff alleged that defendant
“wilfully and intentionally breached [his] fiduciary duties when he put in a motion to withdraw
[from] [p]laintiff’s case after [he] and the [p]laintiff [were] under a contract.”
¶ 17 As relief, plaintiff sought compensatory damages of $38,000 and an unspecified amount of
punitive damages.
¶ 18 Plaintiff attached to his amended complaint (1) a September 16, 2015, hearing transcript
reflecting that the trial court permitted defendant to withdraw; (2) a May 14, 2014, “Receipt
and Representation Agreement” in which defendant agreed to represent plaintiff for the sum
of $10,000 and acknowledged receipt of a $6670 retainer; and (3) plaintiff’s affidavit, in which
he claimed that defendant never contacted him for a refund.
¶ 19 The trial court entered an order noting that defendant’s motions to dismiss plaintiff’s
original complaint were “adopted” as motions to dismiss plaintiff’s amended complaint.
Plaintiff filed a reply to defendant’s motions to dismiss, reiterating that (1) defendant breached
his fiduciary duty as plaintiff’s attorney and (2) plaintiff did not need to establish his actual
innocence. Plaintiff asserted that his complaint was timely because he filed it within the sixyear statute of repose for legal-malpractice claims. See id. § 13-214.3(c) (“Except as provided
in subsection (d), an action described in subsection (b) may not be commenced in any event
more than 6 years after the date on which the act or omission occurred.”).
¶ 20 In a written order, the trial court dismissed plaintiff’s amended complaint with prejudice.
However, the court did not specify the basis for the dismissal. This timely appeal followed.
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¶ 21 II. ANALYSIS
¶ 22 Broadly, this appeal presents two questions: did plaintiff have a right to counsel in his legal-malpractice case, and did the trial court err in dismissing the amended complaint? We note that
defendant has not filed a brief in this court. However, since the issues are relatively simple, we
may resolve them without the benefit of defendant’s brief. People v. Maberry, 2015 IL App
(2d) 150341, ¶ 8 (citing First Capitol Mortgage Corp. v. Talandis Construction Corp.,
63 Ill.
2d 128, 133 (1976)).
¶ 23 A. Appointment of Counsel
¶ 24 We first address whether plaintiff was entitled to court-appointed counsel in his legal-malpractice case. The sixth amendment to the United States Constitution, which applies to the
states through the due process clause of the fourteenth amendment, guarantees that, “[i]n all
criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel
for his defence.” (Emphasis added.) U.S. Const., amends. VI, XIV. The Illinois Constitution
also protects the right to counsel (Ill. Const. 1970, art. I, § 8), though the Illinois right is broader
than its federal counterpart (see People v. Campbell, 224 Ill. 2d 80, 85 (2006)). The Illinois
right to counsel, which is codified in section 113-3(b) of the Code of Criminal Procedure of
1963 (725 ILCS 5/113-3(b) (West 2018)), states that “[i]n all cases, except where the penalty
is a fine only, if the court determines that the defendant is indigent and desires counsel, the
Public Defender shall be appointed as counsel.” Both the federal and Illinois rights to counsel
attach only at the critical stages of a criminal proceeding. See People v. Anderson, 2021 IL
App (2d) 190128, ¶ 22 (acknowledging that a defendant’s right to counsel attaches only in
criminal cases).
¶ 25 Although a court’s denial of appointed counsel is usually reviewed for an abuse of
discretion (see People v. Cole, 97 Ill. App. 2d 22, 27 (1968)), we consider the issue de novo
(see People v. Clark, 144 Ill. App. 3d 7, 11 (1986) (“Where a person’s constitutional rights
turn on a legal conclusion arising from undisputed facts, it is the duty of a reviewing court to
come to its own conclusions.”)).
¶ 26 Plaintiff sought to have counsel appointed for him in his legal-malpractice action against
defendant. Legal malpractice is a civil action. Suppressed v. Suppressed, 206 Ill. App. 3d 918,
923 (1990). A litigant in a civil action has neither a constitutional nor a statutory right to
counsel. See Ratcliffe v. Apantaku, 318 Ill. App. 3d 621, 627 (2000). Accordingly, plaintiff
was not entitled to the appointment of counsel.
¶ 27 B. Dismissal of Amended Legal-Malpractice Complaint
¶ 28 Next, we consider if the court properly dismissed plaintiff’s amended complaint. Defendant
filed separate motions to dismiss, under sections 2-615 and 2-619 of the Code (735 ILCS 5/2-
615, 2-619 (West 2018)). Where, as here, the trial court did not specify the grounds on which
it relied in granting dismissal, we presume that the court relied upon one of the grounds
properly presented. Douglas Theater Corp. v. Chicago Title & Trust Co., 288 Ill. App. 3d 880,
883 (1997). Thus, we determine if the dismissal was proper under either section 2-615 or
section 2-619 of the Code.
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¶ 29 1. Dismissal Under Section 2-615
¶ 30 First, we address whether dismissal was proper under section 2-615 of the Code. A section
2-615 motion to dismiss challenges a complaint’s legal sufficiency. State of Illinois ex rel.
Pusateri v. Peoples Gas Light & Coke Co., 2014 IL 116844, ¶ 8. To survive dismissal under
section 2-615, a complaint must allege facts that set out all the essential elements of a cause of
action. Visvardis v. Ferleger, 375 Ill. App. 3d 719, 724 (2007). The critical question is whether
the allegations in the complaint, construed in the light most favorable to the plaintiff, are
sufficient to state a cause of action upon which a court could grant relief. Doe-3 v. McLean
County Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 16. We review de novo a
trial court’s dismissal under section 2-615. Khan v. Deutsche Bank AG, 2012 IL 112219, ¶ 47.
¶ 31 To succeed in an action for legal malpractice, a plaintiff must plead and prove “(1) the
existence of an attorney/client relationship; (2) a duty arising from that relationship; (3) a
breach of that duty on the part of defendant/counsel; (4) proximate cause; and (5) damages.”
Paulsen v. Cochran, 356 Ill. App. 3d 354, 358 (2005).
¶ 32 The bases for defendant’s section 2-615 motion were that plaintiff did not allege either
(1) a breach of duty that was a proximate cause of injury to plaintiff or (2) that plaintiff was
actually innocent of the charges in the criminal case.
¶ 33 We first address whether, as defendant claimed, plaintiff failed to allege a breach of duty
that was a proximate cause of injury to plaintiff. Notably, defendant’s section 2-615 motion to
dismiss was filed against plaintiff’s original complaint, and defendant later adopted that motion
regarding plaintiff’s amended complaint. To the extent that plaintiff’s original complaint
lacked specific allegations of a breach of duty, plaintiff’s amended complaint remedied that
deficiency. The amended complaint presented several breach-of-duty allegations missing in
plaintiff’s original complaint. Additionally, plaintiff alleged causation, asserting that, if
defendant had “researched” plaintiff’s case, the outcome of the criminal proceeding would
have been different.
¶ 34 We turn to whether plaintiff was required to allege that he was actually innocent of the
charges in the criminal case. Illinois cases recognize that, generally, a criminal defendant who
sues his criminal defense attorney for legal malpractice must also plead and prove that he is
actually innocent of the charges in that criminal case. Kramer v. Dirksen, 296 Ill. App. 3d 819,
821 (1998). This additional element is necessary to eliminate the possibility that someone
found guilty of a crime would profit from his criminal activity. Id. (citing Levine v. Kling,
123
F.3d 580, 582 (7th Cir. 1997) (tort law allows damages only for harms to a plaintiff’s legally
protected interests, and the liberty of a guilty criminal is not one of them)). Thus, “[a] plaintiff
who wants to sue his former criminal defense counsel for [legal] malpractice must prove his
innocence—a requirement he cannot meet unless his conviction has been overturned.”
Paulsen, 356 Ill. App. 3d at 359.
¶ 35 Here, plaintiff has not had his conviction overturned. Indeed, he has not even alleged that
he is actually innocent. However, as we have detailed, plaintiff’s legal-malpractice complaint
sets out two distinct grounds for relief. One is that defendant’s performance while representing
plaintiff was deficient in various respects. The other is that defendant withdrew prematurely
from the case. Plaintiff alleged that, not only did the withdrawal require plaintiff to pay new
counsel to represent him, defendant also refused to refund any of the $10,000 fee that plaintiff
had paid. Plaintiff sought $38,000 in compensatory damages and an unspecified amount of
punitive damages.
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¶ 36 No Illinois case has addressed whether the actual-innocence rule applies to a legal-malpractice claim based on a fee dispute. However, our research found Winniczek v.
Nagelberg, 394 F.3d 505 (7th Cir. 2005), which we find very persuasive.
¶ 37 In Winniczek, the plaintiff hired a criminal defense attorney to defend him against federal
charges alleging his involvement in a fraudulent scheme to help people obtain commercial
drivers’ licenses. Id. at 506. The attorney assured the plaintiff that he had a good defense to the
charges, and the plaintiff paid the attorney $170,000 to represent him. Id. at 506-07. After the
attorney was fully paid, he then told the plaintiff that he would not try the case. Id. at 507. The
attorney recommended pleading guilty because, when represented by prior counsel, the
plaintiff had made statements to the authorities that undermined any defense that the plaintiff
might present. Id. The plaintiff obtained a new defense attorney, pleaded guilty, and was
sentenced to 22 months’ imprisonment. Id.
¶ 38 Thereafter, the plaintiff sued the attorney in federal district court. 1 Count I alleged breach
of contract/breach of fiduciary duty in that the defendant overcharged the plaintiff for legal
services. Id. at 508-09. Count II alleged legal malpractice in that the attorney’s neglect of the
case led to the plaintiff’s conviction. Id. Nowhere in his complaint did the plaintiff allege that
he was actually innocent of the crimes of which he was convicted. Id. at 507. The federal
district court dismissed the plaintiff’s complaint in its entirety based on the plaintiff’s failure
to allege actual innocence. Id. at 506-08.
¶ 39 The Seventh Circuit Court of Appeals affirmed the dismissal of count II but reversed the
dismissal of count I. Id. at 510. The court began its analysis by noting the general difference
in how Illinois courts treat a legal-malpractice action arising from a civil case and one from a
criminal case. Id. at 507. To succeed on a claim of legal malpractice for the negligent handling
of a civil case, “all [the plaintiff] has to prove is that he would have won had it not been for the
lawyer’s negligence.” Id. By contrast, the court observed:
“a criminal defendant cannot bring a suit for malpractice against his attorney merely
upon proof that the attorney failed to meet minimum standards of professional
competence and that had he done so the defendant would have been acquitted on some
technicality; the defendant (that is, the malpractice plaintiff) must also prove that he
was actually innocent of the crime.” (Emphases added.) Id.
The court proposed an explanation for the difference:
“The reason for the difference is not that criminals are disfavored litigants, though
there are hints of such a rationale in some cases. [Citations.] It is that the scope for
collateral attacks on judgments is broader in criminal than in civil matters. A criminal
defendant can establish ineffective assistance of counsel, the counterpart to malpractice
[citations], and thus get his conviction vacated, by proving that had it not been for his
lawyer’s failure to come up to minimum professional standards, he would have been
acquitted. He can do this even if, as in a case in which his only defense was that illegally
seized evidence had been used against him, the ground for acquittal would have been
unrelated to innocence. [Citations.] Since a criminal defendant thus has a good remedy
for his lawyer’s malpractice—namely to get his conviction voided—he has less need
for a damages remedy than the loser of a civil lawsuit, who would have no chance of
The basis for federal jurisdiction was that the parties were citizens of different states. Winniczek,
1
394 F.3d at 510. All causes of action in the complaint were brought under Illinois law.
Id. at 507, 510.
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getting the judgment in the suit set aside just because his lawyer had booted a good
claim or defense.” Id. at 507-08.
The court suggested that “the logic of the ‘actual innocence’ rule does not extend to a case in
which the complaint is not that the plaintiff lost his case because of his lawyer’s negligence,
but that he was overcharged.” Id. at 508.
¶ 40 Applying these principles to the facts before it, the Seventh Circuit held that the absence
of an actual-innocence allegation barred count II but not count I. Count II alleged that the
attorney’s neglect resulted in the plaintiff’s criminal conviction, but count I alleged simply that
the plaintiff was overcharged. Id. at 508-09. In count I, the plaintiff “[did] not try[ ] to blame
[the attorney] for the fact that [the plaintiff] was convicted.” Id. at 509. The court used a
hypothetical to illustrate why count I was not subject to the actual-innocence rule:
“To see why count [I] is not about malpractice, imagine that [the defendant] had
promised to represent [the plaintiff] for a fee of $50,000, plus $25,000 in prepaid
expenses of which any amount not expended was to be returned to [the plaintiff].
Suppose further that [the defendant] had done a superb though ultimately unsuccessful
job in representing [the plaintiff] but had incurred expenses of only $5,000 and refused
to refund the balance of the $25,000 in prepaid expenses. There would be no
malpractice, in the sense of incompetent representation—and there would be nothing
in the thinking behind the actual-innocence rule to suggest that [the plaintiff] should
not be allowed to enforce his contract just because he had been convicted. So we are
not surprised that the courts that have confronted this type of case—no Illinois court
has—have held that the actual-innocence rule is not a bar. …
We expect that if and when such a case is presented to an Illinois court, it will
decide it the same way.” (Emphasis added.) Id. at 508-09.
¶ 41 The present case presents the opportunity Winniczek envisioned, and we take the position
that the Seventh Circuit anticipated we would. Plaintiff’s legal-malpractice action is based on
two distinct theories that parallel the two counts in Winniczek. Plaintiff alleged that
(1) defendant’s representation of plaintiff was deficient and that this led to plaintiff’s
conviction and (2) defendant owed plaintiff compensation for withdrawing from the case
prematurely, refusing to refund fees paid, and forcing plaintiff to pay for new counsel.
Consistent with Winniczek, we hold that the absence of an actual-innocence allegation barred
the legal-malpractice claim asserting that defendant’s deficient performance led to plaintiff’s
conviction. However, the absence of an actual-innocence allegation did not bar the legal-malpractice claim seeking reimbursement of fees. That claim, unlike the deficient-performance
claim, did not blame defendant for plaintiff’s conviction.
¶ 42 Plaintiff argues that, under Morris, he was not required to prove actual innocence, given
his allegation that defendant intentionally breached his fiduciary duty to plaintiff. In Morris,
the plaintiff’s defense attorney “intentionally work[ed] to insure [the plaintiff’s] conviction”
by helping the State prepare its cross-examination of the plaintiff. Morris, 307 Ill. App. 3d at
1039. The attorney apparently did so to minimize his own potential criminal exposure.
Id. at
1038. The appellate court held that, under those circumstances, the plaintiff was not required
to prove actual innocence in his legal-malpractice suit against the attorney. Id. at 1039. The
court reasoned that the actual-innocence rule “will not be applied to situations where an
attorney willfully or intentionally breaches the fiduciary duties he owes to his criminal defense
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client.” Id. The supreme court reversed the decision in Morris, but on different grounds. See
Morris v. Margulis, 197 Ill. 2d 28 (2001).
¶ 43 Morris is readily distinguishable. The only “wilful[ ] and intentional[ ]” act plaintiff
alleged of defendant was his withdrawal from plaintiff’s case. A court-permitted withdrawal
from a case is nothing like the sabotage and betrayal present in Morris. We decline to extend
Morris to these facts. We conclude that the actual-innocence rule bars plaintiff’s legal-malpractice claim alleging that defendant’s deficient performance led to plaintiff’s criminal
conviction.
¶ 44 We turn to whether defendant presented grounds under section 2-619(a)(5) to dismiss
defendant’s malpractice claim seeking reimbursement of fees.
¶ 45 2. Dismissal Under Section 2-619(a)(5)
¶ 46 “A motion to dismiss [filed] under section 2-619 admits the legal sufficiency of all wellpleaded facts but allows for the dismissal of claims barred by an affirmative matter defeating
those claims or avoiding their legal effect.” Brummel v. Grossman, 2018 IL App (1st) 162540,
¶ 22. “The failure to act within the time provided by law is an affirmative matter ….”
Id.
Under section 2-619(a)(5), a defendant may move to dismiss a complaint if the complaint is
not filed within the statute of limitations. 735 ILCS 5/2-619(a)(5) (West 2018). The defendant
has the initial burden of proving that the complaint is time-barred. Brummel, 2018 IL App (1st)
162540, ¶ 23. Once the defendant has met that burden, the plaintiff bears the burden of setting
forth facts sufficient to avoid the statutory limitation. Id.
¶ 47 On appeal from a dismissal under section 2-619, we must consider “whether the existence
of a genuine issue of material fact should have precluded the dismissal or, absent such an issue
of fact, whether dismissal is proper as a matter of law.” Kedzie & 103rd Currency Exchange,
Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993). We review de novo a trial court’s dismissal under
section 2-619. Brummel, 2018 IL App (1st) 162540, ¶ 24.
¶ 48 As noted, defendant moved to dismiss under section 2-619(a)(5), alleging that the statute
of limitations had run before plaintiff sued defendant for legal malpractice. Section 13-214.3(b)
of the Code (735 ILCS 5/13-214.3(b) (West 2018)) sets forth the limitations period for legal
malpractice actions. In relevant part, it provides:
“An 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 … must
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.” Id.
¶ 49 Defendant contended that the two-year limitations period had run because more than two
years had passed between defendant’s withdrawal from the criminal case (September 16, 2015)
and the filing of the legal-malpractice action (October 23, 2018). Defendant would be correct
if the cause of action for legal malpractice accrued when defendant withdrew from the criminal
case and thereby, in plaintiff’s view, breached his fiduciary duty to plaintiff. Defendant might
also be correct if the record reflected that he refused to give plaintiff any type of refund when
he withdrew. The record, however, does not reflect that defendant refused to give plaintiff a
refund upon withdrawing. Under the case law, as we will show, plaintiff’s cause of action
accrued at some point after defendant withdrew.
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¶ 50 Instructive on this point is Goran v. Glieberman, 276 Ill. App. 3d 590 (1995). There, the
trial court dissolved the marriage of a husband and wife. Id. at 591. The wife hired Glieberman
to represent her in an appeal from that dissolution judgment. Id. Glieberman filed an opening
brief and then was allowed to withdraw. Id. The wife subsequently hired two other attorneys
to represent her. Id. The opening brief and record Glieberman filed were both stricken for
noncompliance with court rules. Id. at 591-92, 595. The wife’s new attorneys filed a compliant
opening brief and record; they also filed a reply brief and participated in oral argument. Id. at
591-92. After losing her appeal, the wife—with her new attorneys’ help—sued Glieberman for
legal malpractice. Id. at 592. Glieberman, in turn, sued the wife’s new attorneys for
contribution. Id. The new attorneys moved to dismiss Glieberman’s complaint for contribution,
arguing that the limitations period for a contribution claim had run. Id. The trial court granted
the motion to dismiss, and Glieberman appealed. Id.
¶ 51 At issue on appeal was whether the limitations period for legal malpractice had run when
Glieberman filed his complaint for contribution, as the same statute of limitations governed
both that action and the underlying action. Id. In resolving the issue, the appellate court first
observed that a cause of action for legal malpractice does not accrue when the attorney
breaches the duty he owed his client. Id. at 594. Rather, as section 13-214.3(b) provides, a
cause of action for legal malpractice accrues when “the plaintiff knows or reasonably should
know of his injury and that it was caused wrongfully.” Id. at 595. The court determined that
the wife’s cause of action did not accrue when she paid the new attorneys $11,000 to review
the record. Id. at 595-96. Those fees “[were] not actionable as a result of Glieberman’s neglect
but [were] simply incurred as a result of his permitted withdrawal from the case.” Id. at 596.
Rather, “actionable damages” were incurred when the wife paid the new attorneys $1297 to
bring the opening brief and record into compliance. Id. At that point, the wife knew or should
have known of her cause of action. Id. Because the court in Goran could review the record
from the underlying dissolution proceeding to see when the wife paid her new attorneys, the
court could determine, as a matter of law, the date the wife’s cause of action for legal
malpractice accrued. Id. (“Although the question of the time at which a party has or should
have requisite knowledge … to maintain a cause of action is ordinarily a question of fact
[citation], in ruling on a 2-619 motion, where the facts are undisputed and only one conclusion
is evident, the court may determine the date of the commencement of the statute of limitations
as a matter of law.”).
¶ 52 Here, defendant’s motion to dismiss identified his withdrawal from the case as the date that
the cause of action accrued. Certainly, in plaintiff’s view, defendant breached his fiduciary
duty when he withdrew from the case. However, the position “that a cause of action for legal
malpractice accrues at the time of the attorney’s breach of duty[ ] is no longer viable.” Id. at
594. Rather, as this court has noted, “[a] cause of action for legal malpractice does not accrue
until the client discovers or should discover the facts establishing the elements of his cause of
action.” Profit Management Development, Inc. v. Jacobson, Brandvik & Anderson, Ltd., 309
Ill. App. 3d 289, 308 (1999). “Actual damages are an essential element of a cause of action for
attorney malpractice; with no damages, no cause of action has accrued.” Id. Thus, plaintiff’s
cause of action could not have accrued until he incurred actual damages by paying a new
attorney to represent him in his criminal case. The problem for defendant is that—unlike in
Goran, where the appellate court was able to ascertain from the records of the underlying
dissolution action when the wife paid her new attorneys—nothing before us sheds light on
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when plaintiff paid his new attorney to represent him in his criminal case. This is an unresolved
question of fact that precludes the dismissal of plaintiff’s complaint. Kedzie & 103rd Currency
Exchange, Inc., 156 Ill. 2d at 116-17. Moreover, even assuming that plaintiff’s cause of action
sounds in breach of contract and not legal malpractice, his cause of action would not be barred
by the statute of limitations, as it was brought a little over three years after defendant withdrew.
See 735 ILCS 5/13-206 (West 2018) (“[A]ctions on … written contracts … shall be
commenced within 10 years next after the cause of action accrued ….”).
¶ 53 We stress that, since defendant bore the initial burden of proving that plaintiff’s action was
time-barred, we must hold against defendant the uncertainty as to when plaintiff paid his new
attorney to represent him in his criminal case. See Brummel, 2018 IL App (1st) 162540, ¶ 23.
We conclude that defendant’s motion to dismiss under section 2-619 did not establish that
plaintiff’s legal-malpractice claim seeking reimbursement for fees was time-barred.
¶ 54 III. CONCLUSION
¶ 55 For these reasons, we affirm in part and reverse in part the judgment of the circuit court of
Du Page County, and we remand the cause.
¶ 56 Affirmed in part and reversed in part.
¶ 57 Cause remanded.
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