*1 Accordingly, we judgment reverse the of the appel- late court and affirm judgement of the circuit court.
Appellate reversed; court circuit court affirmed. (No. 76179.
HERMITAGE al., CORPORATION et Appellants, v.
CONTRACTORS ADJUSTMENT COMPANY et al., Appellees.
Opinion May filed *2 C.J., FREEMAN, J., BILANDIC, dissenting. joined by Levine, Chicago, Harold I. for appellants.
Jerry Fogelman, A. Nigro Westfall, P.C., & Glendale Heights, appellees.
JUSTICE opinion NICKELS delivered the court:
In this we appeal, are asked to decide whether sev eral statutes of limitations by should be tolled applica of the discovery 9, 1991, tion rule. January On plaintiffs, Hermitage Corporation Racky, and Robert filed a four- count complaint the circuit court of Cook County defendants, against Contractors Adjustment Company George In the Strickland. complaint, plaintiffs al (count leged negligence I), negligent and unauthorized (count (count practice II), of law III), consumer fraud (count breach IV), of warranty arising from defen preparation dants’ of a mechanic’s lien. filed Defendants a motion to all dismiss four counts pursuant to section 619(a)(5) (111. of the Code of Civil Procedure Rev. Stat. 2— 619(a)(5)), ch. par. arguing that all four 2— counts were barred the pertinent statutes of limita *3 tions. The circuit court denied the motion but certified (134 questions the interlocutory appeal. Ill. 2d R. 308.) The appellate granted court appeal to and leave reversed, finding that all in complaint counts the were barred. The appellate court issued a certificate (134 importance, pursuant to Supreme Court Rule 316 316). R. Ill. 2d
BACKGROUND This action arises from the allegedly improper prep- aration of a mechanic’s lien. Plaintiffs in this action are Hermitage Corporation, plumbing contractor, a and Rob- Racky, еrt its principal stockholder. are Defendants Adjustment Company, Contractors which is the busi- recording ness liens protecting rights, lien and George Strickland, the company’s According owner. to construc- plumbing performed complaint, plaintiffs
the building. condominium multiple-unit on tion work defendants, who are allegedly then asked Plaintiffs lien mechanic’s to and record attorneys, prepare re- behalf. Defendants against property plaintiffs’ the on January on 1985. against property lien corded a sought to enforce this plaintiffs Subsequently, suit, seeking a total lien in a foreclosure mechanic’s however, $93,427.18. 16, 1987, the circuit court July On $17,332. to Plaintiffs reducing lien entered an order reduction of mechan- filed a motion reconsider the lien, on March ic’s but this motion was denied plaintiffs complaint filed the January On allege they complaint, plaintiffs this case. In the $17,332 in earlier suit only foreclosure received the lien. improperly prepared because defendants alleged complaint, plaintiffs in the Specifically, as work each individual unit in performed plumbing on condominium building. preparing In the mechan- 72-unit lien, the lien required ic’s defendants were allocate among condominium amount the individual units indicate the but failed do so. Defendants failed to each unit and time performed amount of work on during performed. Because period which work allocate, receive the plaintiffs failure to did not lien, face the value of represented value which allege also actually performed. Plaintiffs work complаint negligence, negligent unau- law, warranty counts practice thorized and breach 16, 1989, when the motion for accrued on March in the earlier foreclosure suit was reconsideration In filed motion to dismiss response, denied. defendants of limita- applicable each count based on the statutes dismiss, contend that tions. In the motion to defendants 29, 1985, the date the January all accrued on counts *4 mechanic’s lien recorded. was agree
The parties as to the pertinent statute of limi I, II, IV, tations for each count. alleging Counts and negligence, negligent law, and practice unauthorized and breach warranty, arise from an for oral contract services, five-year applies limitations (See 1989, 110, these counts. Ill. Rev. Stat. par. ch. 13— alleges fraud, Count III consumer three-year applies stаtute of limitations to this count. Ill. Rev. 270a(e).) 1989, 121 1/2, Although Stat. ch. par. the parties agree pertinent as to the limitations, statutes of they do agree not as to when periods these limitations com mence. hearing dismiss,
After a on motion to the circuit court denied the questions motion but certified three interlocutory appeal. The appellate was court asked to determine whether the statute of limitations for each (1) 29, 1985, count January commenced on: when the (2) recorded; lien July mechanic’s was when the mechanic’s lien was as a part reduced the foreclo- (3) action; 16, 1989, sure or March when the motion reconsider in the earlier foreclosure suit was denied. appellate court found that each statute of limita- began to 29, 1985, tions run оn January when the mechanic’s lien was recorded. not plaintiffs Because did the complaint file until appellate court held that each count was barred.
I. Discovery Rule On appeal, plaintiffs argue they that were unaware lien mechanic’s lien defective they was recorded. Plaintiffs contend that did they become aware a defect in the lien until tried to enforce the lien in argue court. Plaintiffs therefore this court should apply discovery rule to delay commencement date statutes of limitations. contrast,
In II argue defendants I and counts law) (negligence and unauthorized practice of involve arising contract, from ordinarily torts and such actions *5 According breached. the contract is accrue when allegedly was dеfendants, in this case the contract 1985, prepared the lien was when January in breached that the acts and Defendants also contend and recorded. counts III and IV alleged supporting of contract breach (consumer warranty) in fraud and breach of occurred lien and re- again prepared when the was January corded, should start and the statute of limitations argue that the run from that time. Defendants types be to these of actions. applied rule should not periods that the limitations tort and We note differ traditionally have been treated contract actions torts, usually of ac For most the cause action ently. (West plaintiff injury. suffers American crues when the (1977), & Co. 69 Ill. Insurance Co. v. Sal E. Lobianco Son 126, 129-30; Cassidy Bryant v. Derek Insurance 2d see 1064.) Brokers, (1993), Ltd. 244 Ill. For arising and torts out of contractual contract actions ordinarily the cause of action ac relationships, though, contract, when a crues at the time of the breach 132.) (Lobianco, damages. 69 Ill. 2d at party sustains is for this distinction the concern that reason plaintiffs delay bringing will suit after contract damages. Lobianco, in 69 Ill. breached order to increase 2d at 132. limitations, application
Literal
of the statute of
results,
however,
in
harsh
re
produced
sometimes
developed.
rule was
When the
sponse,
"delays
rule is
it
the commencement
applied,
plaintiff
statute of limitations until the
relevant
he
been
reasonably
knows or
should know that
has
wrongfully
caused.”
injured
his
(Jackson Jordan,
Leydig,
Mayer
Inc. v.
Voit &
developed
rule
to avoid
158 Ill. 2d
This
of a
of limitations
application
mechanical
from
be barred
situations where an individual would
suit
he
injured.
before
was aware that he was
This court
first
applied
Rozny
rule
v. Marnul
and discussed the circumstances
in which the
be applied:
should
problem
basic
balancing
"The
is one of
the increase
difficulty proof
accompanies
passage
which
of time
against
hardship
plaintiff
to the
who neither knows
nor should have known
right
existence of his
time,
sue. There are
passage
some actions which the
from the
giving
liability
instant
the facts
rise to
oc
curred, so greatly
problems
proof
increases
it
necessary
has been
plaintiffs
deemed
to bar
who had not
become aware
their rights
of action within the statu
tory period as measured from the time such facts occurred.
*6
passage
[Citations.] But where
of
time does
little
problems
proof,
justice
increase the
the ends
are
by permitting plaintiff
statutory
served
to sue within the
period computed from the time at which he
or
knew
have
right
should
known of the
existence
to sue.
Rozny,
[Citations.]”
Courts have applied case-by- rule on a basis, weighing case hardships relative of applying the rule to both plaintiffs and The discovery defendants. rule has also been incorporated in several statutes (see, 110, limitations Ill. e.g., Rev. Stat. ch. par. (medical 13—212 malpractice); par. (product li 13—213 ability)) generally and is treated the same whether cre by ated common law or statute. common law rule, however, applied will not be there where a contrary is legislativе indication of (Lipsey intent v. (1970), 32, 38-40), Michael Reese Hospital 46 Ill. 2d such aas of repose, places which an absolute outer time limit on brought. action can be pertinent statutes limitations in this case do not contain such an outside limit. Rozny,
Since applied Illinois courts have the discov- rule in a ery wide actions to variety postpone the (Knox running of the statute of limitations. v. College
79 407, 414; v. (1981), Ill. Witherell Wei 88 2d Corp. Celotex 154-55.) applied has (1981), This court 85 Ill. 2d mer actions, involving the five- discovery rule to several could be period of section year limitations 13— (Knox, from 88 arising as contract. characterized torts (tortious arising and fraud misrepresentation 407 Ill. 2d Jordan, contract); Ill. 2d 240 roofing Jackson from attorney-client from an (legal arising malpractice (1992), 152 contract); Golding v. Ill. Bank FSB Superior negligence arising con (misrepresentation 2d 480 loan).) also note mortgage a commercial We nection with discovery rule applied court has appellate Bradley Alpine See v. to consumer fraud actions. 432; App. Co. 3d Sommer Construction Ill. App. Insurance Co. Savings United Life cases, concerned In these the courts have been more facts underlying support application with whether the action was character rule than how of an party may An be unaware injured ized. wrongful the action deemed
its cause whether contract, tort, arising or other breach involve tort from Ill. 3d at Cassidy, App. of contractual duty. 1064; Inc. Encompas, Co. v. Commonwealth Edison 856-58.) (1987), 158 The reasons behind Ill. application regardless mаy support *7 an action is characterized. how were, case, agree plaintiffs parties In this both that fact, in the mechanic’s alleged in unaware of the defect 1985, prepared in the lien and recorded. lien when was alleged an un failure to be aware of defect Plaintiffs’ complex nature of given the technical and derstandable (See Ill. Rev. regarding mechanics’ liens. Illinois law Plaintiffs, 82, laymen, as 1989, seq.) ch. et par. Stat. in a mechanic’s expected identify defects could be in that lead to substantial reduction lien would lien. Plaintiffs would have no to know that reason improperly prepared they sought actually lien was until to enforce the lien. Plaintiffs no would have reason to they injured injury know that were or that this wrongfully they attempted causеd until to enforce the suggested mechanic’s lien: Defendants have not that problems proof significantly have increased because passage time. argue discovery that,
Defendants even if the rule may applied generally types actions, be to these applied rule should not be in this instance. Defendants argue plaintiffs’ injury plaintiffs was known to in 1987,when the circuit court reduced mechanic’s lien. According defendants, if the statutes of limitations 1985, had commenced the lien when was recorded I, II, IV, statutes would have run in 1990 on counts argue, Thus, and in 1988 on count III. defendants when plaintiffs plaintiffs became aware of their years remaining still had in which to file three of 2 1/2 year remaining the counts and one-half of on the argue consumer fraud count. Defendants discovery аpply injured party rule does not when has remaining period a reasonable of time the limitations period, as measured from the time of the or breach act (the causing injury, complaint within which to file rule). "reasonable time” split appellate
We note that a exists court on panels agreed this issue. Several have with defendants’ discovery "reasonable time” rule and held that the applies only after occurs the statute of nearly run, limitations has run has or as measured from (See, causing injury. the time of breach or act Van e.g., App. 407-08; 210 Ill. 3d Gessel Folds Dolce 127-29.) App. 60 Ill. In v. Gamberdino appellate Dolce, court stated: "The exception rule is the to the traditional rules, applied only to be when the occurs after
81 discoveryoc- run when limitations has so or statute of running action, all that the at time near curs practical party has reasons, barred before has been of the accrual.” learned agreed appellate with case, court In the instant discovery that the found decisions therefore these apply. rule did discovery panels, however, held that the have
Other discovery regardless may applied oc of when rule be (1993), (See, App. e.g., Ill. 3d v. 258 Garcia Pinto curs. (1984), App. 22, 23-26; 240-42.) v. 129 Ill. 3d Tucek Grant interpret discovery rule These decisions period file, time to "not much as an extension so as a rule which determines when but rather begin Emergency v. to run.” Coleman Hinsdale should (1982), App. Corp. 108 Ill. 3d Medical resolving past split, first examine deci In this we involving past In sions of this court. cases consistently "[t]he rule, court has stated delays the commencementof the relevant plaintiff rea limitations until the knows or statute of injured sonably has and that should know he been added.) wrongfully (Emphasis his caused.” (Jackson Superior Jordan, 249; Ill. at see also 158 2d 488-89; Bank, 152 Ill. 2d at Nolan v. Johns-Manville 161, 171; 85 Ill. 2d Tom Olesker’sExcit Asbestos ing Fashion, Bradstreet, & Inc. World Inc. Dun Rozny, Lipsey, 135; 40; Ill. at 61 Ill. 2d 46 2d 70.) "[t]he ef at has stated that 43 Ill. 2d This court also starting postpone fect rule is to added.) (Knox, period (Emphasis 88 of limitations.” (date Witherell, 2d 414; Ill. at see at also limitations).) "triggering” discovery for statute of date past left "have on the time These decisions not focused discovery of of action and the between the a cause begin limitations from the termination of the statute of ning but have been concerned with of the act instead running the moment of commencement of the (Garcia, statute of limitations.” Ill. applied cases,
In
several
these
this court has not
though discovery may
"reasonable time” rule even
have
*9
statutory period ended,
occurred before the
measured
as
causing injury.
from the time of the breach or act
See
Superior
Knox,
407;
Bank,
88 Ill. 2d
83
on the date
run
limitations started to
that the statute
pe
statutory
two-year
provided
the full
(Sharpe,
235;
also
92 Ill. 2d
see
that date.
riod from
Chrysler
Corp.
Highsmith
18
434
F.3d
v.
Credit
(finding
inapplicable
fraud action
to consumer
Anderson
rule);
Management
involving
Midland
Supp.
Corp. Computer
F.
Inc.
v.
Consoles
(same).)Accordingly,
this case does
involve
because
might
extend
concealment issue
a fraudulent
limitations,
address Anderson.
we do not
statute of
reasoning
Finally,
of Dolce and
we
that the
note
In Bonanno
rule have been criticized.
"reasonable time”
Supp.
Potthoff (1981),
F.
the court stated
lead
some bizarre and unfair
Dolce
would
gave
example
specific
to illustrate
The court
results.
point:
(say)
four
"Suppose the
near’ time for
'so
would have run.
before the statute of limitations
months
*10
a
produce the bizarre
result
that
Dolce would then
years
plaintiff
of
four
and
who
a cause
action
discovered
in
months
months after it arose would have
seven
five
suit,
plaintiff
the
bring
the
who made
which to
whereas
years
do so.
two months later would have
five
By
under all the other case
contrast
uniform result
give
five-year period
every plaintiff the same
would
law
original.)
(Emphasis
been
after his claim had
discovered.”
n.8.)
(Bo nanno,
Supp.
F.
at 565
fraud,
noted, in
context
exception
consumer
Another court
only
absurdity
"[t]hе
clear. Its
that
***
penalize plaintiffs who discover their
effect is to
Midland, 837
than later.”
cause of action sooner rather
Supp.
Highsmith,
887;
We Otherwise, the amount time” rule. "reasonable injured party an could sue would time which within discovery. fortuity depend note of the date We on adopting also that "reasonable time” rule would lead of certainty litigation lack and increased concern- ing what constitutes reasonable time to file suit.
II. Application Discovery Rule apply foregoing We now principles to the facts complaint case. contains two dates on which plaintiffs allegedly were aware of the defect in the (1) 16, 1987, mechanic’s lien: July when the circuit court first reducing lien; entered order mechanic’s (2) 16, 1989, March circuit court denied a mo- tion to that, reconsider the reduction. We note if the statutes of limitations commenced count III al- leging consumer fraud will be barred untimely. as statute of limitations for consumer fraud is three years, and the complaint this action filed in 1991. On hand, the other if the statutes of limitations commenced none of the four counts are barred. Plaintiffs and not dispute plain- defendants do that tiffs were possibility aware that had they been wrongfully injured in 1987. Plaintiffs defendants agree plaintiffs that on were notice of alleged defect in the mechanic’s lien when the circuit court reduced the mechanic’s lien. For the purpose the motion to dismiss, arguе defendants do not plaintiffs that became aware of the defect in the lien before when the Plaintiffs, however, circuit court reduced argue the lien. they could not be certain that they injured were until when their motion for reconsideration was Alternatively, argue denied. plaintiffs determining whether to apply presents factual inquiry, and inquiry this factual should not be resolved aby motion to dismiss under section 2—619 in this case. *11 619(a)(5), may
Under section a defendant raise a 2— statute of limitations issue in a motion to dismiss. When so, plaintiff a defendant provide enough does the must facts to avoid of the of application limitations.
(See Schmid, (1988), Ill. App. Inc. v. Ruklick Julius 1107-08.) 1098, uses plaintiff When a 3d limita of the statute of delay to commencement rule the date of proving has burden of tions, plaintiff 190 Ill. App. v. Jаrrett discovery. Kirby 1107-08.) In the com 12; Ruklick, Ill. 3d at of case, pleaded the date plaint plaintiff this March as makes motion to dismiss under
When a defendant and reasonable well-pleaded all facts section 2— purpose are as for the of the accepted inferences true (Burdinie Heights Village Glendale motion. 505.) law, however, are Conclusions (Burdinie, as 139 Ill. 2d at In true. accepted case, solely complaint, parties this based on the rulings legal effect the circuit court’s contest plaintiffs’ We state accept the foreclosure suit. therefore the circuit court denied the motion for ment that 16, 1989, but we do not accept reconsideration on March legal this be the plaintiffs’ conclusion date must discovery date. dismiss,
In plaintiffs the context the motion concerning no what dispute and defendants have factual on the dates in the For happened complaint. contained motion, accept purpose defendants facts addition, plaintiffs In have had complaint. stated in the opportunity to raise other dates as when possible but have not done so. The injury discovered determine this undisputed facts are and we therefore as matter law. question rule,
In this court has stated: applying the emphasize we announce is wish to "We of action not the same as a rule which states that cause person know both the when a knows or should accrues only negligent and the defendants’ conduct. Not beyond ordinary comprehension such a standard person recognize, it which lay but аssumes a conclusion *12 86 properly legal
must await determination. [Citation.]More- over, knowledge negligent if conduct were stan- the dard, party bring beyond a could wait to an far action time reasonable when sufficient notice been has received possible legally protected invasion one’s interests. hold, therefore, We party that when a knows or reason ably injury both should know that an has occurred and wrongfully caused, that it begins was the statute to run party obligation and the inquire under an to further to an wrong determine whether actionable was committed. way, injured person In that an is not held to standard of knowing inherently [citation], yet unknowable once it reasonably appears injury wrongfully caused, that an was party may rights.” (Nolan, not slumber on his 85 Ill. 170-71.) at2d
Again, Knox, 88 Ill. 2d at this court stated: "At sоme point injured person possessed becomes of suf concerning ficient information injury his and its cause to put person reasonable on inquiry to determine whether actionable conduct is involved.”
Applying reasoning, we find that plaintiffs were injury aware that an occurred wrongfully caused in when their lien was substan tially reduced. Plaintiffs were of the possible aware defect mechanic’s lien 1987 and were aware may the lien have improperly been prepared. Plaintiffs were therefore "to required inquire further determine whether wrong actionable was commit (Nolan, ted.” Although Ill. the circuit court could have reconsidered its decision in plaintiffs were on they notice this time that had a problem with mechanic’s lien. Zupan v. Berman (statute (1986), 142 App. Ill. 3d 396 оf limitations legal malpractice action started run from the date of judgment, motions); from post-trial the denial (stat Belden v. Emmerman legal ute of malpractice limitations in action started to that was the order entered the circuit court run when action, not when the legal malpractice subject of the thereafter).) or the order declined vacate circuit court limitations be postponed could Otherwise, in the earlier appeal all indefinitely until avenues suit were exhausted. on the four
Accordingly, statutes of limitations 16, 1987, July complaint commenced on in the counts summary judg- granted partial circuit court *13 in complaint lien. The the mechanic’s ment and reduced count Because January on 1991. was filed action timely, that count fraud was not alleging III consumer counts, however, other three must be dismissed. The reasons, foregoing timely manner. For the filed in were part in court is affirmed judgment appellate judgment in of the circuit court part. and reversed part, in and the cause is part is affirmed in reversed proceedings. to circuit court for further remanded part in court Appellate affirmed part; and reversed part circuit court affirmed part; reversed cause remanded. FREEMAN, dissenting: JUSTICE today considerably expands The court’s decision igno- rule in The rule now excuses discovery Illinois. litigation against nonattorneys. Were rance of law in charged duty Adjustment Company with Contractors impart legal expertise, a foundation for operation reason for the rule’s rule would exist. But the case absent here. in such a is undertakes, pursuant simple A who nonattorney contract, another to claim lien for service personal law, to those not, owe duties akin does under Illinois explain duties attorney. owed Such claims like those operation respecting time-lapsed rule’s Hermitage Corporation principally alleges. In the duties, absence of such statutory time bars be must Hermitage honored. Corporation should bear the conse- quence legal of not appreciating inadequacy lien claim as of the it time was filed. reasons,
For those I dissent. has, course, rule been to "a applied spectrum” broad of claims to avoid time bars where plaintiffs neither knew nor should have known of time- (Knox triggering injuries. College Corp. Cеlotex 78-79.) 407, 414; 88 Ill. 2d see 166 Ill. 2d But different explain regard reasons operation rule’s with dif types ferent appreciate why claims. To the discovery applies to recognize certain claims is to when a limitations be must honored where the reason crucial, for the rule is point absent. That discovery rule very runs counter to one reasons why statutes of limitations exist. The "to reason: discourage delay bringing of claims.” See Tom Fashion, Olesker’s Exciting World Inc. v. Dun & Brad street, (1975), 61 Inc. Ill. 2d
As to any particular claim, operation of a time bar (Tom to protection relates of evidence. *14 Olesker’s Excit 132.) Fashion, ing Inc., World 61 Ill. 2d at The of discovery rule is consistent purpose with that excus ing the bar where the of passage time has not affected (See ability prove Rozny the claim. v. Marnul 70.) (1969), 54, 43 Ill. 2d But the discovery rule conflicts (see in every case with the Mytich additional Sutton v. (1990), 672, 677), 197 Ill. App. prophylactic purpose 3d of discouraging Regard delay generally. for that purpose calls for the application. rule’s cautious and selective Curiously, acknowledgment of general that more purpose is omitted from the majority’s extended quota tion from the passage Nolan v. Johns-Manville 85-86, Asbestos in which it See 166 at appears. Ill. 2d
89 (1981), Ill. 85 Asbestos Nolan v. Johns-Manville quoting 161, 2d 171. explained usually is operation rule’s
The to the reasonably available of means the absence injury. That is the of to know of incidence plaintiff post-surgery-existence-of- for the rule in the reason which the line of cases from foreign-objects-in-the-body (See (1969), 43 Rozny Marnul in Illinois. sprang (1979), 79 70-71; sеe, Wagner 54, e.g., Anderson v. Ill. 2d 295.) part, for the most same reason explains, Ill. 2d and misrepresentation operation the rule’s cases 407.) 88 2d And (See, College, Knox Ill. e.g., fraud. in cases explains why the rule obtains same reason involving injuries, exposure like incremental those See, Nolan, e.g., asbestos. being of means to know simply dispossessed
But explains is not what the rule’s incidence operation legal malpractice, type in a case of analogous claim to the one made here. principal legal malpractice in a justified rule is attorney-client relationship. special suit because Magana, Levy, Cathcart & Olney, Neel v. Glefand 176, 421, 837; Rptr. 6 Cal. 3d P.2d Cal. see 491 98 (D. Co. also Pioneer National Title Insurance v. Sabo 1977), 76; generally Bank Supp. Suрerior Del. F. see 480.) is Golding attorney FSB v. An Ill. skill, dili charged duty prudence, with a "to use and common 6 Cal. 3d gence” legal profession. (Neel, in the 844.) Rptr. at 491 P.2d at at Given 98 Cal. to detect nonattorney presumed unable duty, legal expertise: "misapplication” malpractice client] "If must ascertain at moment [the incidence, professional hire a second of its client must first, expensive imprac- the work of the observe re- duplication, clearly the confidential tical destructive of (Neel, his lationship practitioner client.” between Rptr. at 98 Cal. at 6 Cal. 3d P.2d *15 90
(See
81.)
Sabo,
Therefore,
also
432
at
Supp.
F.
the real-
client,
ized
to the
attorney’s
not the
misapplica-
tion of expertise,
point
marks
measuring
time for
compliance
period.
with
statute of limitations
That
say
is not to
that
displaces
a person
notion that
should be
appreciate
held to
(See
meaning
legal
of a
document he executes.
An
(1993).)
not., 10 A.L.RSth
12
aWhen
document’s mean
§
ing
plain
requires
legal
is
and
explanation
no
client is well educated and has had
opportunity
read
signed,
what he
no action
malpractice
lies.
Berman v.
849, 854,
Rubin
138 Ga. App.
227
806.)
S.E.2d
The discovery
operation
rule’s
is
negated.
therefore
It
only
is
when the
"re
document
quires
procedural knowledge,
ambigu
substantive or
is
ous, or is of certain application”
malpractice
may
exist and so invite application
Berman,
of the rule. See
App.
Ga.
Incidentally, appellate our court understands the discovery rule operate does not dоcument’s meaning unambiguous appreciation of it requires legal expertise. no Hannigan issue arose in Country Mutual Insurance Co. App. Ill. 336, 342, a involving case an insurance contract. The insured had sued her for nonpayment insurer of under- coverage insurance and refusal to arbitrate that claim. The policy required all claims for arbitration be made "within years two after the date accident.” omitted.) (Emphasis (Hannigan, 3d at The insured had learned of the tortfeasor’s inadequate coverage only insurance after two-year period had Nevertheless, lapsed. oper rule could not noted, ate. The policy, the court was clear. The insured only had two years from the date of an accident Thus, demand arbitration. there was no need to deter mine when the insured "knew or should have *16 right Hannigan, to sue.” of the existence
known
at 342.
brings
I
in this case.
to
lien claim filed
me
That
copy
is found
note,
of the document
first, that no
should
copy
attached as
was
No
of the document
in the record.
complaint,
Hermitage Corporation’s
nor
to
exhibit
Adjustment
part
copy
a
of Contractors
was a
made
however,
is,
Company’s
lien claim
The
motion
dismiss.
County
having
public record,
the Cook
filed in
been
may
judicial
be
it
notice of
office, and so
recorder’s
Chicago
City
Express,
Line
Inc.
taken. See Finish
(1978),
The lien performed (plumbing), type the date fies of work (December 1984), completed the total work was general ($92,850.08) lien claimed amount Condominiums). incorporated (Sanctuary An worksite remaining consisting pages two "schedule” regarding provides lien. detail further number, lists, 74 condomini- The unit "schedule” actually plumbing done. in which the work was ums col- are in a left-hand vertical The unit numbers listed per Corresponding list, umn, with one unit line. plumbing work was middle column sets out the date performed. represented 14, 1984, is as the December completed third, unit. In for each date work right-hand similarly corresponding column, the lien apportioned equal $1,238to each unit.1 amounts of provision Hannigan, policy
Unlike the insurance stating lien appears the tоtal 1 There to be an error either apportioning or that amount 74 units. amount knowledge procedural substantive of the law necessary mechanics’ liens is to appreciate the lien claim claim, though stated, here. The lien clearly is insuf- existing right ficient under law to create it purports to establish. problem lies with the use of a so-called "blan
ket” performed lien for work under one contract on multiple parcels. The Lien requires Mechanics Act lien claims be made within four months "after comple (Ill. tion” of work. par. Rev. Stat. ch. It is likely any on performed parcel work one will be performed more prior than four months to "completion” rights of work on all and jeopardized. so lien are First Federal & Savings Connelly Loan Association v. *17 247-49.) 97 Ill. Under Schmidt v. Anderson 29, 33, the date pеrformed work was on each parcel must be stated in order to a enforce lien performed where labor on other was any more than four months before the claim was filed.
The notice lien prepared Adjust- Contractors Company ment did not set out the the plumbing dates work performed on each of the 74 condominium units. The consequence July that was realized on determined. judicially when the claim was But the injury was choate when the January notice was filed on 29, 1985. apportioned ($1,238) multiplied by amount the number units (74) (round ($92,850 equal does not the total lien amount claimed dollar))
ing ($91,612). off to the nearest but lesser amount specifically preserves Mechanics Act Lien claims with such (See 82, par. (providing defects. Ill. Rev. Stat. ch. 7 no "be proper lien will defеated to the amount” because of an "error overcharging” by or present).) claimant unless fraud is But were that not the implicated, case and the rule somehow suggest I no operation. basis would exist for its A miscalculation appearing certainly legal on the face a notice lien needs no knowledge appreciate. to enough majority to invoke
It is for too "technical liens was of mechanics’ rule that law appreciate Hermitage Corporation complex” for (166 I not Ill. 2d at do at its incidence. complex” dispute law nature of the the "technical equity in I am well aware of the liens. And of mechanics’ allowing Hermitage Corporation to hold the chance inep Company responsible Adjustment Contractors doing thing expert very as it held itself out in titude disagree decision because I with the court’s do. any variety complexity or lien of law—the mechanic’s ignore statutory time bar other—cannot be reason against legal malpractice effect, is, claim for nonattorney. in what focusing "lay problem There is inherent on Hermitage Corporation as rationale for man” status of 79-80.) (See operation. Ill. 2d at rule’s requiring nonattorneys laymen All are as to matters legal expertise. Third New International Webster’s (1993) (defining "layman” Dictionary as "one expert belonging particular profession to some or not art”).) knowledge complexity of some branch of or laymen beyond equally. law That is the ken of all legal point regulation of State licensurе and profession. Adjustment may Company have held
Contractors expert asserting claims under itself out as an Adjust- But, fact, Lien Contractors Mechanics Act. *18 anything layman. Company a The ment was never but legal wrong inject majority simply is to issue analysis. Adjustment expertise Contractors into its regard- expert Company no more an can be considered Hermitage Corpora- ing Act than the Mechanics Lien Hermitage to It therefore makes no sense excuse tion. appreciate Corporation’s the facial defect failure to Excusing upon one lien in time to sue it. claim layman’s tardy appreciation injury because the law is complex holding layman too respon- favor another sible for arising complexity from that is entirely arbitrary. far-rеaching
The more consequence of the court’s de- cision is the elevation of a nonattorney’s ignorance of law to the legal malpractice. status of The relationship Hermitage Corporation between Adjust- and Contractors ment Company simple personal arose from service contract. No confidential relationship alleged in the complaint. None could exist. Illinois law simply does not regard nonattorneys who file lien on behalf claims owing any duty others as confidentiality. is, again,
It for regard duty that a time bar is negligence in a against excused action attorney for client, services rendered such as an effort to create rights. lien sense, In a duty confidentiality binds the client to the attorney. opera- rule’s tion reflects that notion.
The rule permit rely would client to without reservation on the attorney’s competency creating rights. lien The confidential relationship ensures the client’s in doing reasonableness so. If the client had to retain a second attorney efficacy check the of the lien first, claim filed the initial confidential relation- ship personal would be undermined. But a service contract between "client” and a nonattorney who undertakes duty the same task no entails of confidential- ity which could be undermined.
Furthermore, by licensing attorneys policing State, the profession, explicitly implicitly, justi- fies a attorney’s client’s reliance on an competence to rights create legal like liens. Not so with respect to nonattorney thing. same purports who do the nonattorney law any does hold the standard of legal contracting expertise. nonattorney In with a *19 right creating legal lien, "cli- as a such
services freely relying similarly justified on the ent” is Unfortunately, competence. nonattorney’s that leaves appreciate, being able of not at risk the "client” "legal” arising legal injury services from himself, a nonattorney responsible. hold the in time to enough however, not, reason Such misfortune against legal malpractice recognize action for a cause of nonattorneys in- are services whose contractual all rights. legal In roundabout tended, fail, create but applica- precisely effect of the court’s fashion, that is agree today. I cannot with tion that result. joins in this dissent. BILANDIC JUSTICE
CHIEF (No. 76730. (Dee FRENCH, Deceased
In re ESTATE OF ANNA V. Musgrave Appellees, al., Charles A. Anna et Appellant). French,
Opinion May filed