Perlstein v. Wolk

• Decision Date: 17 February 2006
• Docket Number: No. 98909.,98909.
• Citation: 218 Ill.2d 448,844 N.E.2d 923
• Parties: Deena PERLSTEIN et al., Appellees, v. Maurice WOLK et al., Appellants.
• Court: Illinois Supreme Court

Page 923

844 N.E.2d 923

218 Ill.2d 448

Deena PERLSTEIN et al., Appellees, v. Maurice WOLK et al., Appellants.

No. 98909.

Supreme Court of Illinois.

February 17, 2006.

Gino L. DiVito and Daniel I. Konieczny, of Tabet, DiVito & Rothstein, L.L.C., Chicago, for appellants.

Thomas W. Gooch III and Melissa G. Massey, Wauconda, for appellees.

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

Plaintiffs Deena Perlstein and Scott Schneider filed a legal malpractice action against defendants Maurice Wolk and Ross & Hardies. Plaintiffs relied on the limitations period for malpractice actions set forth in section 13-214.3 of the Code of Civil Procedure, as amended by Public Act 89-7 (commonly referred to as the Tort Reform Act). See Pub. Act 89-7, eff. March 9, 1995 (amending, inter alia, 735 ILCS 5/13-214.3 (West 1994)). Defendants moved to dismiss the complaint, arguing that this court's decision in Best v. Taylor Machine Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057 (1997), which held Public Act 89-7 void in its entirety, rendered plaintiffs' complaint untimely. The trial court, relying on the void ab initio doctrine, agreed with defendants and dismissed the complaint with prejudice. The appellate court reversed. 349 Ill.App.3d 161, 284 Ill.Dec. 808, 810 N.E.2d 598. We allowed defendants' petition for leave to appeal (177 Ill.2d R. 315) and now affirm the judgment of the appellate court.

BACKGROUND

I. Limitations and Repose Periods for Attorney Malpractice

Prior to the adoption of Public Act 89-7, section 13-214.3 of the Code of Civil Procedure established a two-year limitations period and a six-year repose period for attorney malpractice actions. 735 ILCS 5/13-214.3(b), (c) (West 1994). Subsection (d) of the statute contained an exception to the repose period:

"When the injury caused by the act or omission does not occur until the death of the person for whom the professional services were rendered, the action may be commenced within 2 years after the date of the person's death unless letters of office are issued or the person's will is admitted to probate within that 2 year period, in which case the action must be commenced within the time for filing claims against the estate or a petition contesting the validity of the will of the deceased person, whichever is later, as provided in the Probate Act of 1975." 735 ILCS 5/13-214.3(d) (West 1994).

Public Act 89-7, effective March 9, 1995, removed subsection (d), but otherwise left intact the balance of section 13-214.3. With the removal of subsection (d), the statute then required—without exception—that all legal malpractice actions be brought within two years from the date the complaining party knew or reasonably should have known of the injury, but in any event, not more than six years after the act or omission occurred. 735 ILCS 5/13-214.3(b), (c) (West 1996).

On December 18, 1997, this court entered its decision in Best v. Taylor Machine Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057 (1997). In Best, we held certain "core provisions" of Public Act 89-7 violated the separation of powers clause and the prohibition against special legislation. Best, 179 Ill.2d at 416, 433, 449, 467, 228 Ill.Dec. 636, 689 N.E.2d 1057. Because the core provisions were inseparable from the remainder of Public Act 89-7, we concluded that the act must fail in toto. We thus declared Public Act 89-7 "void in its entirety." Best, 179 Ill.2d at 467, 228 Ill.Dec. 636, 689 N.E.2d 1057. That portion of Public Act 89-7 which removed the exception to the statute of repose for attorney malpractice actions set forth in section 13-214.3(d) was not one of the core provisions held substantively unconstitutional. Nonetheless, because we held Public Act 89-7 void in its entirety, that portion of the act was also rendered invalid.

Against this statutory backdrop, we consider the nature and timing of the malpractice action at issue here.

II. The Malpractice Action

Plaintiffs' cause of action for legal malpractice stems from defendants' preparation, on October 23, 1992, of the last will and testament of Lawrence A. Perlstein, Deena Perlstein's husband. Generally, plaintiffs alleged that defendants negligently prepared the will, thereby preventing the Lawrence A. Perlstein Trust from disbursing $300,000 to Scott Schneider, Deena Perlstein's son, and causing other damages.

Lawrence Perlstein died on September 23, 1995. On October 16, 1995, the circuit court of Lake County admitted the will to probate and issued letters of office to Deena Perlstein. On January 8, 1996, the attorneys for the trustees of the Lawrence A. Perlstein Trust rendered an opinion that the trustees should not fund the trust on the ground that Lawrence Perlstein had not properly exercised the power of appointment in his will. On January 26, 1996, the trustees notified Deena Perlstein that the trust would not be funded.

At the time Deena Perlstein learned that her late husband's trust would not be funded, the changes wrought by Public Act 89-7 had been on the statute books for almost a year. As noted above, following the passage of Public Act 89-7, a two-year limitations period and a six-year repose period applied—without exception—to all attorney malpractice actions. See 735 ILCS 5/13-214.3(b), (c) (West 1996). According to defendants, the two-year limitations period would have expired, at the latest, on January 26, 1998 (two years from the date Deena Perlstein purportedly had knowledge that the trust would not be funded), and the six-year repose period would have expired October 23, 1998 (six years after the date defendants prepared the will). Plaintiffs filed their legal malpractice action in the circuit court of Cook County on January 8, 1998, clearly within the limitations and repose periods.¹

Defendants moved to dismiss the complaint with prejudice, arguing that it was time-barred. See 735 ILCS 5/2-619(a)(5) (West 2002). According to defendants, because Best declared Public Act 89-7 unconstitutional, the act was void ab initio. In effect, Public Act 89-7 "never was." Thus, defendants argued that the exception to the statute of repose set forth in section 13-214.3(d), which Public Act 89-7 sought to remove, "never ceased to have validity." Under subsection (d), plaintiffs cause of action should have been commenced "within the time for filing claims against the estate or a petition contesting the validity of the will of the deceased person, whichever is later." 735 ILCS 5/13-214.3(d) (West 1994). In this case, the later date was the claims-filing date: April 26, 1996. See 755 ILCS 5/18-3 (West 1996). In defendants' view, plaintiffs' complaint, filed January 8, 1998, was 20 months late.

Plaintiffs countered that the void ab initio doctrine does not govern this case. Plaintiffs relied on Illinois case law holding that where a legislative change in a statute of repose would otherwise instantaneously bar a plaintiff's cause of action, the plaintiff will be allowed a reasonable period of time in which to file its cause of action. See, e.g., Moore v. Jackson Park Hospital, 95 Ill.2d 223, 69 Ill.Dec. 191, 447 N.E.2d 408 (1983); Goodman v. Harbor Market, Ltd., 278 Ill.App.3d 684, 215 Ill.Dec. 263, 663 N.E.2d 13 (1995). Plaintiffs posited that the result should be no different where the change in the statute of repose results from a judicial decision, rather than legislative action. Thus, plaintiffs argued that their complaint, filed just three weeks following this court's decision in Best, was filed within a reasonable period of time following the change in the law.

The circuit court acknowledged that the result might be harsh, but nonetheless applied the void ab initio doctrine and dismissed plaintiffs' complaint with prejudice. The appellate court reversed, holding that such a result would be fundamentally unfair. The appellate court found that the filing of plaintiffs' complaint, just three weeks after the Best decision, was within a reasonable period of time after the change in the repose period for malpractice actions and that the complaint was not time-barred. 349 Ill.App.3d at 169-70, 284 Ill. Dec. 808, 810 N.E.2d 598. The appellate court remanded the cause for additional proceedings. 349 Ill.App.3d at 171, 284 Ill.Dec. 808, 810 N.E.2d 598. This appeal followed.

ANALYSIS

The classic formulation of the void ab initio doctrine, and the one followed in Illinois, is found in the early case of Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1886). There, the Court considered whether an unconstitutional state statute that created a county board could give validity to the acts of the board. The Court answered in the negative, stating in relevant part:

"An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." Norton, 118 U.S. at 442, 6 S.Ct. at 1125, 30 L.Ed. at 186.

See People v. Gersch, 135 Ill.2d 384, 399, 142 Ill.Dec. 767, 553 N.E.2d 281 (1990) ("An unconstitutional law `confers no right, imposes no duty and affords no protection. It is * * * as though no such law had ever been passed,'" quoting People v. Schraeberg, 347 Ill. 392, 394, 179 N.E. 829 (1932), in turn citing Board of Highway Commissioners v. City of Bloomington, 253 Ill. 164, 176, 97 N.E. 280 (1911), in turn citing Norton, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178). Thus, under the Norton rule, an unconstitutional statute is void ab initio, i.e., void "from the beginning." See Black's Law Dictionary 1604 (8th ed.2004).

Defendants argue that our case law mandates strict application of the void ab initio doctrine in both civil and criminal cases, irrespective of the consequences, and that the appellate court erred in failing to apply the doctrine in this civil case. Plaintiffs argue that the better approach takes into account the equities of a...