Deluna v. Burciaga

• Decision Date: 30 November 2005
• Docket Number: 2003-01942.,No. 04-4595-cr.,B177152,No. 5D05-17.,2004-1466.,No. 12-05-00177-CV.,No. 1-03-1682.,No. 04-1710.,No. 01-04-00542-CV.,No. 03-0750.,No. 03-4743.,No. 85370.,No. 2005-01293-AD.,Case No. 1D05-0768.,Case No. 2D04-4771.,No. 2005-06970-AD.,No. 2005-07216-AD.,85370.,2005-07216-AD.,2005-01293-AD.,2005-06970-AD.,03-0750.,5D05-17.,04-1710.,03-4743.,01-04-00542-CV.,12-05-00177-CV.,04-4595-cr.,1-03-1682.
• Citation: 160 S.W.3d 559,907 So.2d 1178,104 Fed.Appx. 892,2005 NY Slip Op 7400,834 N.E.2d 478,2005 Ohio 4643,2005 Ohio 4645,2005 Ohio 6389,2005 Ohio 4575,407 F.3d 616,2005 Ohio 4644
• Parties: Sonia DeLUNA, Susanna DeLuna, Griselda DeLuna, and Oscar DeLuna, Plaintiffs-Appellants, v. Eloy BURCIAGA, Defendant-Appellee (Barbara Clinite and Michael Rathsack, Defendants).
• Court: Illinois Supreme Court

Page 478

834 N.E.2d 478 Sonia DeLUNA, Susanna DeLuna, Griselda DeLuna, and Oscar DeLuna, Plaintiffs-Appellants,
v.
Eloy BURCIAGA, Defendant-Appellee (Barbara Clinite and Michael Rathsack, Defendants). No. 1-03-1682. Appellate Court of Illinois, First District, Fifth Division. August 5, 2005. Rehearing Denied September 8, 2005 and September 20, 2005.

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Bullaro & Carton, Chartered (James R. Branit, of counsel), Steven A. Denny, Chicago, for Appellant.

Konicek & Dillon, P.C., Geneva (Thomas W. Dillon, of counsel), for Appellee.

Justice SHEILA M. O'BRIEN delivered the opinion of the court:

Plaintiffs Sonia DeLuna, Susanna DeLuna, Griselda DeLuna and Oscar DeLuna appeal the order of the circuit court dismissing their legal malpractice claim against defendant Eloy Burciaga because the complaint was filed after the repose period set forth in section 13-214.3 of the Code of Civil Procedure (Code) (735 ILCS 5/13-214.3 (West 2000)). On appeal, plaintiffs contend that the trial court erred because: (1) section 13-214.3(e) of the Code tolled the repose period for two of the plaintiffs, Sonia and Susanna, during their minority; and (2) defendant fraudulently concealed his conduct, thereby tolling the start of the repose period and estopping him from raising the statute of repose as a defense. Plaintiffs also contend that the court erred by denying them leave to file a fifth amended complaint. We reverse and remand.

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On April 7, 1986, Alicia DeLuna, the mother of all four plaintiffs, was admitted for back surgery at St. Elizabeth's Hospital. During surgery, Dr. Michael Treister allegedly cut through Mrs. DeLuna's left iliac artery causing severe bleeding and loss of blood pressure. Mrs. DeLuna died the following day. Mrs. DeLuna was survived by her husband, Guadalupe, and four minor children-Sonia (born July 3, 1983), Susanna (born May 24, 1980), Griselda (born May 15, 1975) and Oscar (born March 31, 1974).

Guadalupe DeLuna retained Mr. Burciaga in April 1986 to pursue medical malpractice and other claims for the death of his wife. Mr. Burciaga asked attorney Barbara Clinite to assist him in the matter. Mr. Burciaga, however, was the attorney who communicated directly with the DeLunas since he spoke fluent Spanish. On April 16, 1986, Mr. Burciaga and Ms. Clinite filed a lawsuit against Dr. Treister and St. Elizabeth's Hospital on behalf of Guadalupe DeLuna as the administrator of his wife's estate. Mr. Burciaga deliberately filed the lawsuit without attaching an affidavit from a reviewing healthcare professional, as required by section 2-622 of the Code (735 ILCS 5/2-622 (West 2000)), because he wanted to test the constitutionality of the requirement.

On October 23, 1986, the trial court granted St. Elizabeth's motion to dismiss, due to the absence of the affidavit required under section 2-622. On February 25, 1987, the trial court granted Dr. Treister's motion to dismiss, with prejudice, on the same grounds.

On March 13, 1987, Ms. Clinite filed a notice of appeal of the order dismissing plaintiffs' complaint against Dr. Treister. Attorney Michael Rathsack subsequently joined Mr. Burciaga and Ms. Clinite in representing the estate of Alicia DeLuna. On June 13, 1989, the appellate court reversed the trial court's dismissal of plaintiffs' complaint, holding that section 2-622 was unconstitutional. See DeLuna v. St. Elizabeth's Hospital, 184 Ill.App.3d 802, 132 Ill.Dec. 925, 540 N.E.2d 847 (1989). However, on February 20, 1992, the Illinois Supreme Court reversed the appellate court, holding that section 2-622 was constitutional. See DeLuna v. St. Elizabeth's Hospital, 147 Ill.2d 57, 167 Ill.Dec. 1009, 588 N.E.2d 1139 (1992).

On November 10, 1993, Mr. Burciaga and Mr. Rathsack filed a new lawsuit, with the appropriate affidavit attached, against St. Elizabeth's Hospital and Dr. Treister. Oscar DeLuna was now special administrator of the estate because Guadalupe DeLuna had died. The trial court granted Dr. Treister's motion to dismiss on res judicata grounds, and it granted St. Elizabeth's motion on respondeat superior grounds because Dr. Treister had already been dismissed. On November 27, 1996, the appellate court reversed the dismissals and remanded for further proceedings. DeLuna v. Treister, 286 Ill.App.3d 25, 222 Ill.Dec. 9, 676 N.E.2d 973 (1996). On February 19, 1999, the supreme court affirmed the circuit court's dismissal of the claim against Dr. Treister but reversed the dismissal of the claim against St. Elizabeth's Hospital and remanded for further proceedings thereon. DeLuna v. Treister, 185 Ill.2d 565, 236 Ill.Dec. 754, 708 N.E.2d 340 (1999). Mrs. DeLuna's estate entered into a settlement with St. Elizabeth's Hospital in the fall of 2000.

On February 20, 2001, plaintiffs filed the legal malpractice action at issue here. Mr. Rathsack moved to dismiss the complaint under section 2-619 of the Code, contending that the statute of repose set forth in section 13-214.3 of the Code barred plaintiffs' case. The plaintiffs subsequently filed a first amended complaint alleging

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three counts of professional negligence against defendants Mr. Burciaga, Ms. Clinite and Mr. Rathsack, and alleging that the defendants were joint venturers engaged in fraudulent concealment. Ms. Clinite then filed a section 2-619 motion to dismiss the complaint, due to the expiration of the repose period. Ms. Clinite also argued against the existence of a joint venture between the defendants. However, before the trial court could rule on the motion, the plaintiffs moved for leave to file a second amended complaint which the trial court granted.

Mr. Rathsack and Ms. Clinite brought motions to dismiss the second amended complaint under section 2-619, and Mr. Rathsack also moved to dismiss the action under section 2-615. The trial court granted Mr. Rathsack's section 2-615 motion and continued Ms. Clinite's section 2-619 motion. Plaintiffs filed a third amended complaint, and again both Mr. Rathsack and Ms. Clinite filed section 2-619 motions to dismiss, based on the statute of repose defense. On October 8, 2002, the trial court dismissed the third amended complaint, finding that it "failed to sufficiently allege the elements which show the existence of a joint venture and fraudulent concealment" and contained "factual inadequacies."...