The Trusted Adviser April/May 2011 | Volume 4 • Number 3



Ethics; Joint Tenancy

Snyder v Heidelberger, 403 Ill App 3d 974, 933 NE2d 1235, 342 Ill Dec 942 (2nd D, 2010).

Facts:Judith Snyder (plaintiff) married Wilbert Snyder in 1997 and subsequently lived at a residence that became the subject of this suit. On May 23, 1997, Wilbert Snyder retained an attorney, Elliot Heidelberger, to prepare a document to make the Snyders joint tenants with rights of survivorship in the residence. Heidelberger drafted a quitclaim deed, which he later recorded, that purported to transfer the residence from Wilbert Snyder to Wilbert and plaintiff as joint tenants.

In 2007, Wilbert died. In 2008, Wilbert's son and plaintiff's stepson, Steven Snyder, filed an action for forcible entry and detainer against plaintiff. On January 2, 2009, Steven won a judgment stating that the quitclaim deed had no effect because the residence was owned not by Wilbert but by a land trust, and the land trust agreement provided that Wilbert's entire interest in the residence would pass to Steven upon Wilbert's death. Therefore, Steven became the owner upon Wilbert's death.

Plaintiff subsequently filed this action against Heidelberger for malpractice, asserting in Count I that plaintiff was a third-party beneficiary of Heidelberger's relationship with Wilbert and that plaintiff was entitled to a duty of due care. Plaintiff also requested in Count II that the court impose a constructive trust on the residence.

Heidelberger moved to dismiss Count I because, under the statute of repose, an action against an attorney "arising out of an act or omission in the performance of professional services" must be instituted within two years of when the person knew, or should have known, of his or her injury. 735 ILCS 5/13-214.3(b). Also, in any event, such an action must be brought within six years after the occurrence of the act or 13-214.3(c). Heidelberger argued that plaintiff suffered her harm on May 23, 1997, when the ineffective quitclaim deed was drafted. Plaintiff argued that the harm did not occur until Wilbert died and his interest passed to Steven, giving Steven a right to the residence. Therefore, plaintiff argued for the application of the statute's provision allowing a person two years to file an action after the death of the person who retained the attorney's services, if the injury occurs upon the 13-214.3(d).

The trial court agreed with Heidelberger and dismissed Count I, prompting plaintiff's appeal.

Holding:Reversed and remanded. Justice McLaren, writing the majority opinion, ruled that subpart (d) of the relevant statutory provision preserves a cause of action where an attorney prepared a deed but failed to properly determine whether the grantor actually held title to property. In a substantially similar case, the Illinois Supreme Court ruled that in such a case, the injury does not occur until the grantor's death because the grantor could have amended or revoked the flawed document prior to his or her death.Wackrow v Niemi, 231 Ill 2d 418, 425, 899 NE2d 273 (2008). Although Wackrow involved a will and the plaintiff's case involved an immediate transfer of interest, the court held that they were legally indistinguishable because in both cases, the grantors could have remedied the mistake any time until their deaths. Thus, only when the grantors died did the injury to the aggrieved party actually occur.

Specially concurring, Justice Jorgensen asserted that in this case, plaintiff suffered two distinct injuries. The first occurred when the flawed quitclaim deed failed to convey to her a one-half interest in the property. Because plaintiff's action was brought after the expiration of the statute of repose, plaintiff could not recover for this injury even though she was unaware of it until recently. However, plaintiff suffered a second injury upon Wilbert's death, when his one-half interest failed to vest in her as a joint tenant. Because that injury occurred recently and upon Wilbert's death, subpart (d) of the statutory provision clearly grants plaintiff an exception to the usual time limit in the statute of repose, so the decision was properly reversed and remanded.

Justice O'Malley dissented, arguing that the majority opinion failed to provide the actual majority view of the court, and that Justice Jorgensen's theory of the plaintiff's dual injuries should have been the majority because both Justices McLaren and Jorgensen agreed with this interpretation.

Furthermore, Justice O'Malley argued that their interpretations were wrong, because the injury occurred only at the moment when the ineffective deed was drafted. In Wackrow, because the interest was in a will, it was not supposed to transfer until the grantor's death and therefore the injury occurred at the time of death. In the plaintiff's case, Justice O'Malley argued that the interest was supposed to transfer upon recordation of the deed, so the injury occurred only when the joint tenancy failed to come into existence. The fact that full ownership did not occur via the joint tenancy by right of survivorship was not a separate and subsequent injury, but merely a consequence of the single, original injury. Therefore, the statute of repose barred plaintiff's action in this case. The fact that Wilbert could have remedied the legal consequences at any time until his death did not alter the timing of the injury.






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[Last update: 4-21-11]