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Lopez v. Clifford Law Offices12/16/2005
December 12, 2005
This is an appeal from a dismissal of a legal malpractice action. After Elizabeth Lopez, the daughter of plaintiff Jose Lopez, drowned in a pool that was allegedly maintained by the Rockford School District, Lopez retained defendant Clifford Law Offices (the Clifford firm) to represent him and Elizabeth's estate in a wrongful death action. Several months later, defendant Thomas K. Prindable, an attorney with the Clifford firm, wrote to Lopez, informing him that the firm was unable to continue representing him and the estate. Prindable's letter incorrectly advised Lopez that the applicable statute of limitations was two years, when, in fact, it was only one year from the date of Elizabeth's death. Ultimately, another attorney-whom Lopez retained after the expiration of the one-year statute of limitations applicable to municipalities, but before the second anniversary of Elizabeth's death-filed the wrongful death action. However, because the wrongful death action was filed after the expiration of the applicable statute of limitations, it was dismissed.
The Clifford firm and Prindable (collectively, the Clifford defendants), as well as defendant William King, an attorney who referred Lopez to the Clifford firm, separately moved to dismiss the malpractice action pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2002)) on the grounds that the wrongful death action was still viable when the Clifford firm ceased to represent the estate. The circuit court granted the motions to dismiss. For the reasons that follow, we reverse and remand.
BACKGROUND
Lopez initially filed his malpractice action against the Clifford defendants alone. In his August 19, 2003, complaint, Lopez alleged the following. Elizabeth died on February 20, 2001. Shortly thereafter, Lopez retained the Clifford firm "for the purpose of advising of his legal rights." At all pertinent times, Prindable was an employee, servant and/or agent of the Clifford firm and acting within the scope of his agency. On August 20, 2001, Prindable wrote to Lopez a letter which stated, in pertinent part:
"I am writing * to confirm our telephone conversation in August 14, 2001, wherein I informed you that Clifford Law Offices is unable to continue to assume professional responsibility on behalf of the Estate of your daughter, Elizabeth, as a result of her tragic death on February 20, 2001. This decision does not represent an opinion as to the merit of any cause of action the Estate may have.
Please be advised that the statute of limitations in Illinois provides that a civil action to recover compensation for your daughter's injuries must be filed within two years after the cause of action occurred. Therefore, should you decide to pursue this matter further, we respectfully suggest that you contact an attorney of your choice immediately so that the Estate's legal rights may be fully protected. Do not delay."
The letter was attached as an exhibit to the malpractice complaint. Lopez alleged that Prindable's advice as to the statute of limitations, upon which he reasonably relied, was incorrect because the Rockford School District was a "local public entity" within the meaning of the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter, the Tort Immunity Act) (see 745 ILCS 10/1-206 (West 2000)) and no civil action may be commenced against a "local public entity" after one year from the date of the injury (see 745 ILCS 10/8-101 (West 2000)). Lopez claimed that as a result of the Clifford defendants' negligence, he and the estate irrevocably lost their rights of action, and had the wrongful death a
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