Griffin v. Goldenhersh, 5-00-0109.

• Court: United States Appellate Court of Illinois
• Citation: 257 Ill.Dec. 52,323 Ill. App.3d 398,752 N.E.2d 1232
• Docket Number: No. 5-00-0109.,5-00-0109.
• Parties: Lee O. GRIFFIN, Plaintiff-Appellee, v. Marvin GOLDENHERSH, Del Goldenhersh, and Goldenhersh & Goldenhersh, a Professional Corporation, Defendants-Appellants.
• Decision Date: 03 July 2001

752 N.E.2d 1232
323 Ill. App.3d 398
257 Ill.Dec. 52

Lee O. GRIFFIN, Plaintiff-Appellee,
v.
Marvin GOLDENHERSH, Del Goldenhersh, and Goldenhersh & Goldenhersh, a Professional Corporation, Defendants-Appellants

No. 5-00-0109.

Appellate Court of Illinois, Fifth District.

July 3, 2001.

752 N.E.2d 1235

Brian W. Bell, Sheryl A. Pethers, Swanson, Martin & Bell, Chicago, IL; Theodore R. Harvey, Jr., Freeark, Harvey, Mendillo, Dennis, Wuller & Cain, Belleville, IL, Attorneys for Appellants

George R. Ripplinger, George Ripplinger and Associates, Belleville, IL, Attorneys for Appellee.

Justice KNECHT delivered the opinion of the court:

In June 1998, plaintiff, Lee O. Griffin, filed suit against defendants, Marvin Goldenhersh (Marvin), Del Goldenhersh, and the professional corporation of Goldenhersh & Goldenhersh, for damages resulting from Marvin's legal representation of plaintiff in a 1981 criminal matter. Defendants filed a motion to dismiss plaintiff's cause of action as time-barred, which the trial court denied. Defendants brought this interlocutory appeal, in which the trial

752 N.E.2d 1236

court certified the following questions (155 Ill.2d R. 308)

"[(1)] Whether the applicable statute of limitations bars a cause of action for legal malpractice brought in June 1998 by an attorney's former client who was found guilty of murder in 1981 and incarcerated, and whose conviction was later overturned on the basis of ineffective assistance of counsel and he was then released from prison in October 1996[.]

[(2)] Whether the applicable statute of repose bars a cause of action for legal malpractice brought in June 1998 by an attorney's former client who was found guilty of murder in 1981 and incarcerated, and whose conviction was later overturned on the basis of ineffective assistance of counsel and he was then released from prison in October 1996[.]

[(3)] Whether application of the statute of repose to bar a claim for legal malpractice by an inmate who was estopped from bringing a cause of action for legal malpractice while he was incarcerated violates plaintiff's rights under the equal protection and due process clauses of both the Illinois and [United States] Constitutions[.]"

We answer the second question in the affirmative and the first and third questions in the negative.

I. BACKGROUND

On June 29, 1998, plaintiff filed a two-count complaint for legal malpractice, consisting of negligence and breach of contract claims, against defendants for Marvin's representation of plaintiff in a 1981 criminal matter.

A. Plaintiff's Conviction

In February 1981, four people were repeatedly shot. One person survived and was later the State's key witness. Within hours of the shooting, plaintiff was arrested. People v. Griffin, 124 Ill.App.3d 169, 170, 79 Ill.Dec. 509, 463 N.E.2d 1063, 1064 (1984) (Griffin II). Plaintiff originally retained Ralph Derango to represent him. Griffin II, 124 Ill.App.3d at 171, 79 Ill.Dec. 509, 463 N.E.2d at 1064. Several days later, Jimmie Lee Smith was arrested for the same shootings and retained Marvin to represent him. After plaintiff's family discharged Derango, Marvin undertook the joint representation of plaintiff and Smith. Griffin II, 124 Ill.App.3d at 171, 79 Ill.Dec. 509, 463 N.E.2d at 1065. (In a deposition relating to the habeas corpus petition, Marvin claims he undertook representation of plaintiff prior to representing Smith. Griffin v. McVicar, 84 F.3d 880, 881 n. 1 (7th Cir.1996).)

In a hearing on a motion to continue, the trial court probed for a possibility of a conflict in the joint representation, and Marvin stated no conflict existed. Prior to jury selection, the State's Attorney again questioned whether a conflict existed. Griffin II, 124 Ill.App.3d at 171, 79 Ill.Dec. 509, 463 N.E.2d at 1065. Neither Marvin nor the trial court responded to the State's Attorney's question, and the case proceeded to trial without further inquiry. McVicar, 84 F.3d at 882.

In June 1981, a jury found plaintiff guilty of three counts of murder and one count of armed violence. The trial court sentenced plaintiff to three concurrent 40-year prison terms for the murder convictions and a concurrent 30-year prison term for the armed violence conviction. Griffin II, 124 Ill.App.3d at 170, 79 Ill.Dec. 509, 463 N.E.2d at 1064.

B. History of Plaintiff's Ineffective Assistance of Counsel Claims

On direct appeal of his criminal conviction, plaintiff argued ineffective assistance of counsel based on his trial counsel's representation

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of both plaintiff and Smith as having precluded counsel from pursuing the theory most advantageous to plaintiff. People v. Griffin, 124 Ill.App.3d 119, 127-28, 79 Ill.Dec. 501, 463 N.E.2d 1055, 1061-62 (1984) (Griffin I). The Fifth District found plaintiff failed to show ineffectiveness and affirmed plaintiff's conviction (Griffin I, 124 Ill.App.3d at 128, 79 Ill.Dec. 501, 463 N.E.2d at 1062), and the Supreme Court of Illinois denied leave to appeal (People v. Griffin, 101 Ill.2d 571 (1984) (No. 60655))

In August 1982, plaintiff filed a postconviction petition under paragraph 122-1 of the Post-Conviction Hearing Act (Ill.Rev. Stat.1981, ch. 38, par. 122-1), again arguing ineffective assistance of counsel based on the conflict of interest arising out of the joint representation. Griffin II, 124 Ill. App.3d at 176, 79 Ill.Dec. 509, 463 N.E.2d at 1068. The trial court denied plaintiff's petition, and plaintiff appealed. Griffin II, 124 Ill.App.3d at 177, 79 Ill.Dec. 509, 463 N.E.2d at 1069. On appeal, the Fifth District found ineffective assistance of counsel based on trial counsel's conflict of loyalties between plaintiff and Smith, reversed plaintiff's conviction, and remanded the case to the trial court for a new trial. Griffin II, 124 Ill.App.3d at 181-83, 79 Ill.Dec. 509, 463 N.E.2d at 1072-73, rev'd, 109 Ill.2d 293, 93 Ill.Dec. 774, 487 N.E.2d 599 (1985). The supreme court reversed the Fifth District and affirmed the trial court's judgment denying the postconviction petition, reasoning plaintiff's joint alibi testimony refuted the conflict. Griffin, 109 Ill.2d at 308-09, 93 Ill.Dec. 774, 487 N.E.2d at 605.

In March 1991, plaintiff filed a writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code (28 U.S.C. § 2254 (1982)) in the United States District Court for the Southern District of Illinois. The district court denied the petition, and plaintiff appealed. Griffin v. Camp, 40 F.3d 170, 171 (7th Cir.1994). In November 1994, the Seventh Circuit remanded the case to the district court for clarification because of inconsistencies between the district court's factual findings and the record. Griffin v. Camp, 40 F.3d at 174. On May 4, 1995, the district court found that an actual conflict of interest existed in Marvin's representation of plaintiff and Smith. Griffin v. Haws, No. 91-228, slip order at 13 (S.D.Ill. May 4, 1995) (unpublished order). Accordingly, the district court overturned plaintiff's conviction and granted plaintiff's petition for writ of habeas corpus. Griffin v. Haws, slip order at 13-14. The State appealed. On May 21, 1996, the Seventh Circuit affirmed the district court's judgment and issued a writ stating plaintiff is to be released from custody, "unless the State of Illinois elects to retry [plaintiff] within [120] days from the issuance of this [c]ourt's final mandate." McVicar, 84 F.3d at 891. On September 23, 1996, the Seventh Circuit denied the State's petition for rehearing and on September 27, 1996, issued its final mandate. Plaintiff was released from prison on October 9, 1996. On March 17, 1997, the United States Supreme Court denied the State's petition for certiorari. McVicar v. Griffin, 520 U.S. 1139, 117 S.Ct. 1288, 137 L.Ed.2d 364 (1997).

C. Defendants' Motion to Dismiss

In August 1998, defendants filed a motion to dismiss plaintiff's complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5), (a)(9) (West 1998)), arguing the statute of limitations bars plaintiff's cause of action. Plaintiff responded, asserting the statute of limitations did not begin to run until, at the earliest, his release from prison. In reply, defendants contended even if plaintiff filed suit within the statute of limitations,

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the statute of repose bars it (735 ILCS 5/13-214.3 (West 1996)).

In May 1999, the trial court denied defendants' motion, stating application of the statute of repose here violates plaintiff's equal protection and due process rights under the United States and Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const.1970, art. I, § 2). Defendants then moved for a ruling on whether the statute of limitations had time-barred the cause. In July 1999, the trial court held the cause of action was timely because plaintiff filed within two years of the issuance of the Seventh Circuit's mandate for his release, i.e., September 27, 1996.

Defendants moved for certification of questions for interlocutory appeal pursuant to Rule 308(a) (155 Ill.2d R. 308(a)). In February 2000, the trial court found its May 12, 1999, and July 26, 1999, orders involve questions of law as to which substantial ground for difference of opinion exists, and an immediate appeal may materially advance ultimate termination of litigation. This appeal followed.

II. ANALYSIS

A. Statute of Limitations

In June 1981, when plaintiff was convicted, legal malpractice claims fell under the Code's general statute of limitations and were to "be commenced within 5 years next after the cause of action accrued." Ill.Rev.Stat.1981, ch. 110, par. 13-205. The legislature amended the statute of limitations applicable to legal malpractice claims, effective January 1, 1991, reducing the statute of limitations from five years to two years and imposing a six-year statute of repose. Pub. Act 86-1371, § 1, eff. January 1, 1991 (1990 Ill. Laws 2842, 2842-43) (adding 735 ILCS 5/13-214.3...