JUDITH J. SNYDER, Plaintiff-Appellant, v. ELLIOT HEIDELBERGER, Defendant-Appellee (Steven W Snyder, Defendant), 403 Ill. App. 3d 974

JUSTICE McLAREN delivered the opinion of the court: Plaintiff, Judith J. Snyder, sued defendant attorney Elliot Heidelberger for malpractice in the drafting of a deed to real property that her late husband, Wilbert Snyder, allegedly intended to convey to her as his joint tenant. She also requested a constructive trust in order to prevent defendant Steven W Snyder from dispossessing her via an action for forcible entry and detainer (735 ILCS 5/9 — 101 et seq. (West 2008)).

Heidelberger moved to dismiss the malpractice count (see 735 ILCS 5/2 — 619 (West 2008)) on several bases, including as barred by the statute of repose (735 ILCS 5/13 — 214.3 (West 1994)). The trial court granted Heidelberger’s motion, based solely on the claimed violation of the statute of repose. Plaintiff appeals (see 210 Ill. 2d R. 304(a)). We reverse and remand. Plaintiffs two-count complaint, filed February 28, 2008, alleged the following facts. Plaintiff married Wilbert Snyder (Wilbert) on March 7, 1997. Since then, she had resided continuously at the property at issue (the premises).

On May 23, 1997, Wilbert retained Heidelberger to change either the legal title to, or the beneficial interest in, the premises. Wilbert, Heidelberger, and plaintiff intended to make Wilbert and plaintiff co-owners in joint tenancy with rights of survivorship. On May 23, 1997, Heidelberger prepared a quitclaim deed that, by its terms, conveyed title to the premises from Wilbert to Wilbert and plaintiff in joint tenancy. The next month, Heidelberger recorded the deed.

Although the complaint did not so state, plaintiff later alleged that Heidelberger negligently failed to recognize that Wilbert did not hold title to the premises but merely held the beneficial interest in a land trust that did. Thus, she alleged, the quitclaim deed conveyed nothing to her. The complaint continued as follows. On December 26, 2007, Wilbert died. On February 19, 2008, Steven W Snyder (Steven), Wilbert’s son and plaintiffs stepson, filed a forcible entry and detainer action against plaintiff. Plaintiffs complaint does not explain Steven’s suit.

However, a judgment of January 2, 2009, granting Steven relief stated as follows. The quitclaim deed did nothing because title to the premises always had been, and still was, in the land trust. Thus, plaintiff never acquired any interest in the premises. On June 26, 1980, Wilbert amended the land trust agreement to provide that, when he died, the entire beneficial interest would go to Steven. Therefore, Steven was now entitled to possession of the premises.

Count I of plaintiff’s complaint, against Heidelberger for malpractice, alleged that plaintiff was a third-party beneficiary of the professional relationship between Heidelberger and Wilbert and that Heidelberger breached his duty of due care to plaintiff. Count II sought to impose a constructive trust on the premises, contending that Steven should not be unjustly enriched by Heidelberger’s negligence. Heidelberger moved to dismiss count I on several bases, including the statute of repose, which, in pertinent part, reads: “(

b) 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. (

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. (

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’s death ***.” 735 ILCS 5/13 — 214.3 (West 1994). Heidelberger reasoned that, because the allegedly negligent act or omission occurred on May 23, 1997, subsection (

b) of the statute barred any action filed after May 23, 2003. In response, plaintiff relied on subsection (d)’s exception to the six-year rule. She contended that her injury occurred only after Wilbert died, which was less than two years before she filed her action. Plaintiff reasoned that only after Wilbert died did Steven obtain the beneficial interest in the premises and thus become able to exploit the quitclaim deed’s failure to give plaintiff any interest in the premises.

In reply, Heidelberger argued that plaintiff suffered her injury on May 23, 1997, when his allegedly defective drafting of the quitclaim deed denied her the property interest that otherwise would have been conveyed to her immediately. The trial court agreed, dismissed count I, and made the order immediately appealable (see 210 Ill. 2d R. 304(a)). Plaintiff timely appealed. On appeal, plaintiff contends that the dismissal was improper because subsection (

d) of the statute excludes this case from the six-year statute of repose. She argues that the case is controlled by Wack-row. For the reasons that follow, we agree with plaintiff. We review de novo a dismissal under

section 2 — 619 of the Code of Civil Procedure (735 ILCS 5/2 — 619 (West 2008)). Wackrow, 231 Ill. 2d at 422. A

section 2 — 619 motion admits all well-pleaded facts, along with all reasonable inferences from those facts. Wackrow, 231 Ill. 2d at 422. In Wackrow, the plaintiffs complaint alleged that, in March 1993, the defendant attorney prepared an amendment to a living trust for the plaintiffs brother, Woods. The amendment stated that, upon Woods’s death, the trustee would convey the title to Woods’s residence from Woods to the plaintiff. However, the defendant did not realize that Woods did not hold the title to the property; the actual owner was a land trust.

Woods died in August 2002, and, after his will was admitted to probate, the plaintiff made a claim against his estate for the property. The estate did not deliver the property. In October 2003, the probate court denied the plaintiffs claim. On December 27, 2004, the plaintiff sued the defendant for malpractice in drafting the amendment, alleging that he should have learned beforehand that Woods lacked the title to the property. Wackrow, 231 Ill. 2d at 420-21. The defendant moved to dismiss the complaint as barred by the six-year statute of repose.

The plaintiff responded that, under subsection (d), her injury did not occur until Woods died. The trial court dismissed the complaint, and the appellate court affirmed. The supreme court affirmed on a ground not pertinent here. Wackrow, 231 Ill. 2d at 428-29. However, the court held: “[I]t is clear that the injury in this case did not occur until the death of Woods. Plaintiff alleges legal malpractice in the drafting of the amendment to Woods’ trust. Because Woods could have revoked that amendment or changed the beneficiary prior to his death, the injury did not occur until Woods’ death. Consequently,

section 13— 214.3(

d) applies to plaintiffs claim.” Wackrow, 231 Ill. 2d at 425. Plaintiff contends that Wackrow controls this case, given the essential similarities in the allegations of the respective complaints. In each case, the defendant attorney drafted a document that was intended to transfer title to real property from the client to the plaintiff. However, the attorney negligently failed to realize that the client did not actually hold title to the property, but held only the beneficial interest in a land trust. Thus, the purported conveyance of title did nothing, and the intent of the client was frustrated.

As a result, when the client died, the plaintiff was injured because she received nothing. Plaintiff completes the equation by concluding that, just as the plaintiff in Wackrow suffered no injury until Woods died, she suffered no injury until Wilbert died. She reasons that, just as Woods could have revised the living trust by amending it to effectuate his true intent at any time before he died, Wilbert, at any time between May 23, 1997, and his death, could have conveyed to her the interest that he had intended her to receive.

Heidelberger attempts to distinguish this case from Wackrow by seizing on a difference in the clients’ intentions. He observes that, in Wackrow, Woods intended to convey an interest in the property to the plaintiff only after he died, whereas here, Wilbert intended that plaintiff receive an interest in the property as soon as the quitclaim deed took effect. Thus, in Wackrow, the plaintiff could not have suffered any loss until Woods died, because, even had the attorney drafted a proper amendment, she would have obtained nothing until Woods died.

Here, by contrast, had Heidelberger drafted a proper conveyance, plaintiff would have immediately obtained something — a share in either the title to the premises or the beneficial interest in the premises. Heidelberger concludes that the complaint’s allegations establish that plaintiff suffered an injury immediately upon the signing (or at least the recording) of the quitclaim deed, because she was deprived of a benefit that a properly drafted document would have given her immediately, while Wilbert was alive.

We disagree with Heidelberger that this difference between the two cases means that they are distinguishable legally. The animating principle of the quoted passage from Wackrow is that, as long as the client who had intended to convey an interest to the plaintiff was still alive, the attorney’s error could be remedied at any time, by the drafting of a deed or other conveyance that effectuated his intent.

The problem with the defective amendment was simply that it failed to do something that the client had intended, and that failure could have been remedied by having the client “do something,” which was possible at any time before he died. The same principle applies here. We believe that Heidelberger confuses the potential for an injury with an actual injury for which relief could be granted. See Fitch v. McDermott, Will & Emery, LLP, 401 Ill.

App. 3d 1006, 1016-17 (2010), appeal denied, 237 Ill. 2d 555 (2010) (no injury occurred until the death of the testator, because the testator could have revoked or amended the will prior to his death, leaving the farm to the plaintiff). Alternatively, the complaint here alleged two injuries. The first occurred when Heidelberger failed to presently transfer the initial interest in the property. By itself, that injury is distinguishable from the one in Wackrow and would be barred by the statute of repose, because the quitclaim deed was supposed to transfer an interest at the time of its execution.

However, the complaint also alleged that Heidelberger failed to effectuate a transfer of the property to plaintiff upon Wilbert’s death. This injury did not become choate until the death of the grantor, exactly as in Wackrow. The former injury was for an undivided half interest in the property, whereas the latter was for the entire interest in the property. Thus, though the former injury on its own was foreclosed, it was part and parcel of the surviving claim and was subsumed by the damages for the loss of the entire interest in the property, as of the date of Wilbert’s death.

Because plaintiff did not suffer her injury until after Wilbert died, subsection (

b) of the statute of repose allowed her to file her action against defendant within two years after Wilbert’s death. She did so. Therefore, the trial court erred in holding that the statute of repose barred count I of plaintiff’s complaint, and we must reverse the order dismissing count I and remand the cause. The judgment of the circuit court of Du Page County is reversed, and the cause is remanded. Reversed and remanded. The judgment was entered after the trial court consolidated plaintiffs action with Steven’s action. Although the statute was amended in 1995 by Public Act 89 — 7 (Pub. Act 89 — 7, §15, eff.

March 9, 1995), that act was held unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), and the statute thus reverted to its previous content. See Wackrow v. Niemi, 231 Ill. 2d 418, 423 n.3 (2008). The amendment also provided that, if the property were sold before Woods died, he would give the plaintiff $300,000. This aspect of the amendment is not germane here.