2018 IL App (3d) 150760
Ill. App. Ct.2018Background
- Landreth entered a 2003 consulting agreement with the City of Ottawa drafted by an attorney associated with Pool, Leigh & Fabricius (PLF). The City later stopped payments and a court held the agreement void ab initio in 2008.
- Landreth sued in 2009 (consolidated tort and legal-malpractice actions). Fabricius (a professional corporation and former PLF partner) was not named until a 2011 amended complaint asserting only derivative liability as a PLF partner/member.
- Fabricius moved under section 2-619 to dismiss as time-barred; the trial court initially granted but then reconsidered and denied the motion, concluding tolling/fraud and other statutes applied or factual disputes existed.
- Landreth moved for (and obtained) a summary determination that Fabricius was jointly and severally liable for PLF’s debts under partnership-by-estoppel principles and obtained a default judgment against PLF; Landreth then secured summary judgment against Fabricius on liability and later damages, resulting in a six-figure final judgment.
- Fabricius later (more than a year after adverse rulings) moved for summary judgment raising statute-of-limitations defenses (section 13-214.3 and a ``reasonable time'' rule); the trial court struck that motion as untimely and as forfeited. Fabricius appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Landreth's claims against Fabricius were time-barred | Landreth: his claims were timely because (1) derivative claims do not arise from Fabricius’s personal legal services, (2) fraudulent concealment (§13-215) tolled repose/limitations, and factual discovery issues preclude dismissal | Fabricius: claims barred by attorney-malpractice limits (§13-214.3 two‑year limitation and six‑year repose) and/or by §13-205 five‑year catchall; alternatively, the judicial “reasonable time” rule limits tolling | Court: affirmed denial of 2‑619 dismissal. Fabricius forfeited many limitations arguments; §13‑214.3 does not apply to purely derivative partner liability; fraudulent concealment and factual disputes made dismissal inappropriate |
| Whether Fabricius is jointly and severally liable for PLF’s malpractice via partnership or unincorporated‑association theories | Landreth: Fabricius publicly held out as a PLF partner, Landreth relied, so partnership by estoppel or unincorporated association liability applies | Fabricius: denies partnership/participation and that he personally represented Landreth; argues default of PLF is not admission by Fabricius | Court: affirmed summary determination—partnership by estoppel established from public hold‑outs and Landreth’s reliance; Fabricius liable jointly and severally |
| Whether the default judgment against PLF binds Fabricius | Landreth: judgment against partnership binds partners; Fabricius had opportunity to defend and did not protect PLF, so he’s bound | Fabricius: a co‑defendant’s default is not an admission by other defendants | Court: affirmed—judgment against partnership binds partners; Fabricius forfeited PLF’s defenses by not opposing or moving to vacate default |
| Whether striking Fabricius’s late summary‑judgment motion was abuse of discretion | Landreth: motion was tardy and sought affirmative defenses Fabricius had forfeited; motion filed after liability resolved and deadlines passed | Fabricius: trial court abused discretion by striking motion raising statute‑of‑limitations/repose and reasonable‑time rule | Court: affirmed—trial court within discretion to control docket; motion untimely and defenses were forfeited |
Key Cases Cited
- DeLuna v. Burciaga, 223 Ill. 2d 49 (2006) (standard and limits for a section 2‑619 motion)
- Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72 (1995) (statutes of repose and fraudulent concealment principles)
- Romano v. Morrisroe, 326 Ill. App. 3d 26 (2001) (accrual rule for attorney‑malpractice claims)
- Carlen v. First State Bank of Beecher City, 367 Ill. App. 3d 1051 (2006) (statute of repose runs from last date of attorney performance)
- Village of Roselle v. Commonwealth Edison Co., 368 Ill. App. 3d 1097 (2006) (procedural forfeiture of arguments not raised in trial court)
- Fox v. Heimann, 375 Ill. App. 3d 35 (2007) (statute of limitations is an affirmative defense that may be forfeited)
- Housing Authority for La Salle County v. Young Men’s Christian Ass’n of Ottawa, 101 Ill. 2d 246 (1984) (default judgments have same force as contested judgments)