Deluna v. Burciaga, 101428.

CourtSupreme Court of Illinois
Citation223 Ill.2d 49,306 Ill.Dec. 136,857 N.E.2d 229
Docket NumberNo. 101428.,101428.
PartiesSonia DeLUNA et al., Appellee and Cross-Appellant, v. Eloy BURCIAGA et al. (Eloy Burciaga, Appellant and Cross-Appellee).
Decision Date05 October 2006

Page 229

857 N.E.2d 229
223 Ill.2d 49
306 Ill.Dec. 136
Sonia DeLUNA et al., Appellee and Cross-Appellant,
Eloy BURCIAGA et al. (Eloy Burciaga, Appellant and Cross-Appellee).
No. 101428.
Supreme Court of Illinois.
October 5, 2006.

Page 230


Page 231


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J. Timothy Eaton, Kim R. Walberg, of Shefsky & Froelich, Ltd., Kathleen Holper Champagne, of Ungaretti & Harris, L.L.P., Chicago, and Thomas W. Dillon, of Konicek & Dillon, P.C., Geneva, for appellant and cross-appellees.

James R. Branit, of Bullaro & Carton, Chrtd., and Steven A. Denny, Chicago, for appellees and cross-appellants.


Justice KARMEIER delivered the judgment of the court, with opinion:

Plaintiffs, Sonia DeLuna, Susanna DeLuna, Griselda DeLuna, and Oscar DeLuna, filed a legal malpractice action in the circuit court of Cook County against defendants, Eloy Burciaga, Barbara Clinite, and Michael Rathsack. Defendants moved to dismiss plaintiffs' fourth amended complaint, arguing that plaintiffs' suit was foreclosed by the applicable statute of repose. The circuit court granted defendants' motions, ruling, inter alia, that plaintiffs had failed to adequately allege fraudulent concealment of the cause of action, or equitable estoppel, and, in the absence of such allegations, the statute of repose barred the action. The appellate court reversed the dismissal of plaintiffs' complaint and remanded for further proceedings, finding that the statute of repose would have barred the action, but the allegations of plaintiffs' complaint were sufficient, if proven, to invoke statutory provisions pertaining to fraudulent concealment and general principles of equitable estoppel. 359 Ill.App.3d 544, 295 Ill.Dec. 897, 834 N.E.2d 478. We allowed defendant Burciaga's petition for leave to appeal (177 Ill.2d R. 315), and now we reverse the appellate court in part, affirm in part, and remand this cause to the circuit court for further proceedings consistent with this opinion.


Section 13-214.3 of the Code of Civil Procedure (Code) provides in pertinent part:

"(b) An action for damages based on tort, contract, or otherwise (i) 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) [A]n 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.

* * *

(e) If the person entitled to bring the action is under the age of majority or under other legal disability at the time the cause of action accrues, the period of limitations shall not begin to run until majority is attained or the disability is

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removed." 735 ILCS 5/13-214.3 (West 2000).

Section 13-215 of the Code states 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 2000).


The factual allegations and procedural history of this case are set forth fully in the appellate court's opinion (359 Ill. App.3d 544, 295 Ill.Dec. 897, 834 N.E.2d 478), and will be recited hereafter only as necessary to facilitate an understanding of the issues before the court.

Plaintiffs' mother, Alicia DeLuna, underwent back surgery on April 7, 1986. During that surgery, Dr. Michael Treister allegedly cut through Alicia's left iliac artery, causing severe bleeding and loss of blood pressure. Alicia died the following day.

Alicia's husband, Guadalupe DeLuna, retained Eloy Burciaga in April of 1986 to pursue a medical malpractice action, and incorporated claims, arising from Alicia's death. Burciaga asked attorney Barbara Clinite to assist him. Burciaga, however, was the attorney who communicated directly with the DeLunas, because only Burciaga spoke fluent Spanish. On April 16, 1986, Burciaga and Clinite filed a lawsuit against Dr. Treister and St. Elizabeth's Hospital on behalf of Guadalupe DeLuna acting as the administrator of his wife's estate. Burciaga deliberately filed the lawsuit without attaching an affidavit from a reviewing health-care professional, as required by section 2-622 of the Code (Ill.Rev.Stat.1985, ch. 110, par. 2-622), because he wanted to test the constitutionality of that requirement. Burciaga did not inform plaintiffs that he was filing the complaint without the required affidavit. The suit against the hospital was dismissed in October of 1986; Treister's motion to dismiss with prejudice was granted in February of 1987. The failure to attach a section 2-622 affidavit was the basis for dismissal in both instances.

Attorney Michael Rathsack assisted Burciaga and Clinite in the ensuing appeal. In that appeal, the appellate court reversed the dismissal, holding that section 2-622 was unconstitutional. 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, this court reversed the appellate court, upholding the constitutionality of section 2-622. DeLuna v. St. Elizabeth's Hospital, 147 Ill.2d 57, 167 Ill.Dec. 1009, 588 N.E.2d 1139 (1992).

In the spring of 1992, after this court had upheld the constitutionality of section 2-622 and the dismissal of plaintiffs' action, and as the deadline of the legal malpractice statute of repose approached, Burciaga met with the DeLunas and assured them that their medical malpractice case was "going very well."

In November of 1993, Burciaga and Rathsack filed a new lawsuit, this time with the appropriate affidavit attached. However, the circuit court dismissed the cause of action against Treister on the basis of res judicata and the suit against St. Elizabeth's on grounds of respondeat superior. In November of 1996, the appellate court reversed the dismissals. DeLuna v. Treister, 286 Ill.App.3d 25, 222 Ill.Dec. 9, 676 N.E.2d 973 (1996). On February 19, 1999, this court affirmed the dismissal of the suit against Treister, but reversed the dismissal of the claim against

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St. Elizabeth's, and remanded that cause for further proceedings. DeLuna v. Treister, 185 Ill.2d 565, 236 Ill.Dec. 754, 708 N.E.2d 340 (1999). DeLuna's estate ultimately settled with St. Elizabeth's Hospital in the fall of 2000.

On February 20, 2001, plaintiffs brought this legal malpractice action, eventually filing a fourth amended complaint against Burciaga, Rathsack, and Clinite. Defendants moved to dismiss, pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2000)), arguing that plaintiffs' action had been filed beyond the time limitation set forth in the legal malpractice statute of repose. See 735 ILCS 5/13-214.3(c) (West 2000) (six-year statute of repose). The circuit court granted the defendants' motions to dismiss, finding that plaintiffs had failed to adequately allege a joint venture, fraudulent concealment, or equitable estoppel, and in the absence of such allegations, the statute of repose barred the action. Rathsack and Clinite subsequently settled with plaintiffs, leaving Burciaga as the only party-defendant in the ensuing appeal.

On appeal, plaintiffs argued, inter alia, that the trial court erred in dismissing their legal malpractice action 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) Burciaga had fraudulently concealed his conduct, thereby tolling the start of the repose period and estopping him from raising the statute of repose as a defense. The appellate court rejected plaintiffs' first contention, but accepted the second.

The court first held that the tolling provision contained in subsection (e) of section 13-214.3 did not toll the statutory period of repose set forth in subsection (c). Noting that "the terms `statute of limitations' and `statute of repose' are not interchangeable," the court stated that subsection (e) "expressly tolled" only the "period of limitations," which the appellate court interpreted as a reference solely to the statutory period set forth in subsection (b) of section 13-214.3. 359 Ill.App.3d at 550, 295 Ill.Dec. 897, 834 N.E.2d 478. Because the court believed that the phrase "period of limitations," in the context of subsection (e), is not ambiguous, the court declined the plaintiffs' request to consider cases construing the pre-1987 version of the medical malpractice statute of limitations and repose (Ill.Rev.Stat.1985, ch. 110, par. 13-212), which contained language similar to section 13-214.3(e) of the Code. The appellate court acknowledged that courts construing that language had "held that the statute of limitations and the statute of repose for medical malpractice actions were tolled until the minor turned the age of 18." 359 Ill.App.3d at 550, 295 Ill.Dec. 897, 834 N.E.2d 478. Nonetheless, since the appellate court found no ambiguity in the legislature's use of the phrase "period of limitations" in section 13-214.3(e), it rejected "plaintiffs' reliance on the rule of in pari materia [as] unavailing." 359 Ill. App.3d at 550, 295 Ill.Dec. 897, 834 N.E.2d 478.

The court, however, determined that plaintiffs had sufficiently pled fraudulent concealment and equitable estoppel, and thus Burciaga's conduct precluded him from invoking the statute of repose to bar the action. The court held that Burciaga, as a fiduciary, had "a duty to reveal the facts giving rise to the cause of action and that his silence when he ought to speak, or his failure to disclose what he ought to disclose, is as much a fraud at law as an affirmative false representation or act." 359 Ill.App.3d at 551, 295 Ill.Dec. ...

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