Date: 06-28-2001

Case Style: Michelle McIntosh v. Amiel Cueto, et al.

Case Number: 5-99-0717

Judge: Hopkins

Court: Illinois Court of Appeals, Fifth District

Plaintiff's Attorney: Patricia A. Zimmer of George Ripplinger & Associates, Belleville, Illinois

Defendant's Attorney: Joseph B. McDonnell of Greensfelder, Hemker & Gale, Belleville, Illinois

Description: Michelle McIntosh and Elaine Dinges (formerly Elaine McIntosh) (collectively, plaintiffs) appeal from the trial court's grant of summary judgment in favor of Amiel Cueto and his law firm, Cueto, Daley, Williams, Moore & Cueto, Ltd. (collectively, defendants). Plaintiffs claim that defendants are guilty of legal malpractice for having allowed the statute of limitations on plaintiffs' medical malpractice claim to run without filing a complaint. Plaintiffs argue that even though they filed their legal malpractice case beyond the legal malpractice statute of limitations (735 ILCS 5/13-212 (West 1998)), defendants should be estopped from using that statute of limitations as a defense, because defendants are guilty of fraudulently concealing the fact that a medical malpractice action was never filed. We affirm the trial court because plaintiffs never pled equitable estoppel or fraudulent concealment and they did not request leave of court to amend their pleadings.

FACTS

On November 20, 1998, plaintiffs filed a complaint against defendants. In count I of that complaint, Michelle alleged that she was born on February 3, 1970, and that Elaine was her mother. Count I alleged, "As a result of negligent acts on the part of one or more medical care providers during the course of [her] birth, she suffers from impairment in her hearing, schizophrenia, and other disabilities." Count I also alleged that a valid cause of action arose on behalf of Michelle due to the problems surrounding her birth.

Michelle further alleged that on June 6, 1987, she and her mother entered into a contract with Cueto, whereby Cueto agreed to represent Elaine on behalf of Michelle in the medical malpractice case. Michelle alleged that Cueto breached his duty to her by failing to adequately investigate her medical malpractice claim, by failing to seek the advice of a physician, by failing to file a medical malpractice lawsuit on her behalf, and by failing to inform her of his inaction in time for her to obtain other counsel. Michelle alleged that as a proximate result of Cueto's negligence, Michelle's medical malpractice claim was "forever barred, leaving her without just compensation."

Count II of the complaint makes basically the same allegations as count I but is on behalf of Elaine as the plaintiff rather than Michelle. Count I does not allege a separate injury incurred by Elaine personally.

Count I continues with additional allegations that are not contained in count II. Count I alleges that on September 14, 1993, and again on November 29, 1993, Elaine wrote to Cueto, "attempting to get information regarding the status of her case"; that Cueto failed to respond to either letter; that he continued to maintain a file on plaintiffs' case but did not perform any work on their behalf after January 27, 1988; and that Michelle failed to discover the facts giving rise to her cause of action against Cueto "due to the trust and confidence" that she placed in Cueto.

Defendants filed an answer and an affirmative defense to each of the two counts. In their affirmative defenses, defendants alleged that plaintiffs' cause of action was "not commenced within the time limited by law and is, therefore, barred by the applicable statute of limitations." See 735 ILCS 5/13-214.3 (West 1998) (the legal malpractice statute of limitations). Plaintiffs filed a response to defendants' affirmative defenses, in which they denied the allegations of the affirmative defenses, but plaintiffs did not allege that any other statute of limitations should apply.

As an amendment to the record on appeal, defendants submitted plaintiffs' answers to interrogatories, dated March 25, 1999. In those answers, Elaine stated that she sent letters to Cueto in September and November 1993. In those letters, Elaine complained that she had not been able to contact Cueto by telephone, that he did not return her phone calls, and that she was concerned about the status of her case. In the letter of September 1993, Elaine stated, in pertinent part, that she called Cueto's office "a number of times" in the preceding six years and that "another attorney, [Cueto's] brother," told her that a suit had been filed and that it would take a long time to settle. Also in that letter, Elaine stated that when she asked for her file, Cueto's brother called and asked some questions about the case and promised to get back to her but never did. In the November 1993 letter, Elaine stated that she did not receive a response to her letter of September 1993, so she enclosed a typewritten copy of the September letter in her November correspondence.

In Elaine's answers to interrogatories, she stated: "I spoke on the telephone with Christopher Cueto at least three times during the late summer and fall of 1993. I was assured the case was progressing, suit had been filed, and there was an expert in Texas that they intended to consult with about the case."

After the parties conducted discovery, defendants filed a motion for summary judgment, claiming essentially that (1) under the legal malpractice statute of limitations, the complaint against defendants should have been filed within two years of the time plaintiffs knew or reasonably should have known of the loss of the medical malpractice action and (2) in any event, under the statute of repose, the complaint should have been filed not more than six years after the date on which the act or omission occurred. Defendants contended that the statute of limitations would have run no later than January 1, 1993, and that the statute of repose would have expired on January 1, 1997, nearly two years before plaintiffs filed their complaint.

Plaintiffs filed a response to defendants' motion for summary judgment, arguing that defendants "failed to address the statutory limitations provision that is applicable to this case." In their response, plaintiffs contended that defendants' conduct, "as alleged in the pleadings, amounts to fraudulent concealment." Plaintiffs claimed that the correct statute of limitations provides as follows:

"If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 5 years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards." 735 ILCS 5/13-215 (West 1998).

Plaintiffs further alleged in their response that during a phone conversation in 1993 a member of Cueto's firm misrepresented the status of the medical malpractice lawsuit. Plaintiffs alleged that in that conversation, the attorney told Elaine that a lawsuit had been filed on plaintiffs' behalf and that plaintiffs were not able to find out that the medical malpractice case had not been filed until they filed an action in discovery in 1998. Plaintiffs argued that they are well within the fraudulent concealment statute of limitations because as soon as they discovered the fraudulent concealment, they filed the instant lawsuit. Plaintiffs contended that the trial court should find that the fraudulent concealment statute of limitations applied, hold defendants equitably estopped from asserting the legal malpractice statute of limitations as a defense, and deny defendants' motion for summary judgment.

A hearing was scheduled on the motion for summary judgment, but there is no transcript of this proceeding in our record. On October 15, 1999, the trial court entered an order stating that the parties briefed the issues and appeared by counsel for argument. The court ruled as follows: "Although the court finds the facts and issues presented in this matter troubling, it appears that the statute of limitations and statute of repose control, and Summary Judgment must therefore be GRANTED." Plaintiffs did not ask the court to reconsider this ruling, nor did they request leave to amend their pleadings. Plaintiffs filed a timely notice of appeal.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Affirmed

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Reported by Kent Morlan