John B. Simon
A state appeals panel has rejected the complaint against a Chicago law firm filed by former clients who claimed the firm was negligent in gathering evidence as part of a wrongful-death suit.
The suit filed by the estate of Eva Nelson was dismissed by both the Cook County Circuit Court and affirmed by the 1st District Appellate Court because the estate waited too long to sue Cascino, Vaughan Law Offices.
The firm had been retained by the Nelson estate to sue various companies that allegedly exposed Eva Nelson to asbestos. Eva Nelson first hired the firm in 2004, but she died in 2005.
In May 2007, the judge overseeing the underlying asbestos litigation ended discovery and granted summary judgment to Aurora Equipment Co. and Plastics Engineering Co. six months later.
Despite this, litigation proceeded until April 2011, when Cascino, Vaughan withdrew as the estate’s counsel. The estate sought to re-open discovery in the litigation later that year, but the court denied the motion.
The Nelson estate sued the law firm in 2013, alleging that the firm was negligent for failing to enter all of the “essential evidence” into discovery. Aurora would not have won summary judgment otherwise, the estate alleged.
The estate also alleged that the firm never told them that discovery was closed or that Aurora had won a summary judgment, and in a later filing, accused the firm of fraudulent concealment.
Cook County Associate Judge William Edward Gomolinski granted the firm’s motion to dismiss the case. The judge agreed with the firm that the claims stated by the Nelson estate were barred by both the statutes of repose and limitations.
In the 12-page unpublished order, the three-justice panel affirmed the Gomolinski’s ruling that too much time had passed since the alleged negligence had occurred.
The Nelson estate’s appeal hinged on the notion that the operative dates for the statutes of repose and limitations were much later than what the circuit court had found.
Discovery in the underlying asbestos litigation was closed May 15, 2007. Illinois’ statute of repose bars legal-malpractice claims after six years, a threshold the Nelson estate missed by six months when it filed suit in November 2013, Justice John B. Simon wrote.
However, the estate said the clock should not have started until April 2011 when the firm no longer represented them. They argued that, like in medical-malpractice cases, Cascino, Vaughan’s continued representation was “a continuing course of negligent representation.”
The panel rejected this arguments and upheld its 2010 ruling in Mauer v. Rubin, which found that injuries from alleged legal malpractice occur at specific points in time.
The estate argued a similar point with respect to the statute of limitations. Illinois’ statute of limitations is two years for legal malpractice, and the plaintiffs argued their claim meets the threshold because they discovered the malpractice in December 2011 and filed suit in November 2013.
Simon wrote that one of the plaintiffs, John Nelson, said in an affidavit said the estate learned about the order closing discovery in June or July 2011.
That is the operative date of the statute of limitations, Simon wrote — even if the plaintiffs were not completely aware yet of whether the law firm had done anything wrong.
“The statute of limitations started to run at the latest on July 2011 and it expired by the time plaintiffs filed their malpractice claim on Nov[.] 27, 2013,” Simon wrote. “As such, plaintiffs’ claim is barred by the statute of limitations as well as by the statue of repose.”
The panel also rejected the estate’s argument that the law firm had fraudulently concealed its malpractice. If fraudulent concealment did occur, the plaintiff has additional time to file a case outside of the statutes of limitation and repose.
But again, the panel found that the estate had waited too long to file its claims.
“As plaintiffs discovered the alleged fraudulent concealment and 22 months is a reasonable amount of time in which to file their suit within the repose period, the fraudulent concealment exception does not apply to save plaintiffs’ action,” Simon wrote.
The panel also upheld the lower court’s ruling to deny the plaintiff a chance to amend its complaint, saying the claims are already barred by the statutes of repose and limitations.
The Nelson estate was represented by George W. Spellmire, a partner at Spellmire Law Firm LLC. He said the estate does not intend to file an appeal with the Illinois Supreme Court, but was disappointed with the court’s “harsh” ruling.
“There’s a purpose for repose, and we understand that, but we think that the appellate court should make a consideration for the length of time litigation can take in this state, in particular Cook County,” Spellmire said.
The Nelson estate was also represented by Michael P. Simkus and Timothy J. McInerney, both of Spellmire.
Cascino, Vaughan was represented by Joshua G. Vincent, Matthew R. Henderson and Adam R. Vaught of Hinshaw & Culbertson LLP. All three declined to comment.
Justices Daniel J. Pierce and Michael B. Hyman concurred with the order.
The case is Vernon Nelson, et al., v. Cascino Vaughan Law Offices, Ltd., et al., 2015 IL App (1st) 141710-U.