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No. 2--03--0003

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

On January 8, 1998, the plaintiffs, Deena Perlstein and Scott Schneider, filed a complaint inthe circuit court of Cook County against the defendants, Maurice Wolk and Ross & Hardies, allegingthat the defendants had committed legal malpractice in the preparation of a will for Deena Perlstein'sdeceased husband, Larry Perlstein. The plaintiffs voluntarily dismissed the case on September 5,2001, but subsequently refiled their complaint on April 10, 2002, in the circuit court of Lake County. The defendants filed a motion to dismiss the plaintiffs' complaint, alleging that it was not timely filed. On October 1, 2002, the circuit court of Lake County granted the defendants' motion to dismiss. Theplaintiffs appeal from that order. We reverse and remand for additional proceedings.

Larry Perlstein's father, Harris Perlstein, established the Lawrence A. Perlstein Trust (the H.P.Trust) on July 27, 1971. The H.P. Trust provided that, during Larry Perlstein's life, the net incomeof the trust was to be distributed to Larry Perlstein and his descendants. The H.P. Trust alsoprovided that upon Larry Perlstein's death, the trust property be divided into two parts, Part A andPart B. Part A, consisting of 40% of the trust property, was to be distributed to Larry's spouse andLarry's descendants in such manner "as Larry appoints and directs by Will specifically referring to thispower of appointment." The H.P. Trust further provided that "[t]o the extent that Larry does noteffectively exercise his power of appointment over any property comprising Part A, such propertyshall be added to Part B" of the trust property. Part B, consisting of 60% of the trust property, wasto be equally divided among Larry's descendants.

Larry Perlstein died on September 23, 1995, leaving a will dated October 23, 1992, and acodicil dated May 12, 1993. Additionally, Larry Perlstein had executed a Declaration of Trust onJanuary 5, 1988, establishing the L.A.P. Trust. The L.A.P. Trust was subsequently amended andrestated on May 17, 1991. The L.A.P. Trust was again amended and restated on July 20, 1994. Theforegoing instruments were drafted by the defendant attorney, Maurice Wolk. In his will, LarryPerlstein elected to exercise the power of appointment granted to him in Part A of the H.P. Trust. In the exercise of that power, Larry Perlstein's will directed that all of the assets allocated to Part Aof the H.P. Trust be distributed in accordance with the provisions of the L.A.P. Trust. In part, theL.A.P. Trust provided that if Larry Perlstein's wife, Deena Perlstein, survived him, then upon herdeath, the trustee shall distribute $300,000 to Scott Schneider, Deena Perlstein's son from a previousmarriage,.

Larry Perlstein's will was admitted to probate on October 16, 1995. On January 8, 1996, theattorneys for the trustees of the H.P. Trust rendered an opinion that the trustees should not fund theL.A.P. Trust because the power of appointment granted in the H.P. Trust was not properly exercisedin Larry Perlstein's will. Specifically, the attorneys stated that the proposed gift to Schneiderexceeded the scope of the power of appointment because the H.P. Trust limited the class ofpermissible appointees of the assets of the H.P. Trust to Larry Perlstein's surviving spouse and hisdescendants. Schneider was not in this class. Additionally, the attorneys noted that if the exerciseof the power of appointment had granted Deena Perlstein the power to appoint assets from the trustto Schneider, instead of directing an outright distribution to Schneider, the exercise of the power ofappointment would have been fully effective. The language of the H.P. Trust directed that if thepower of appointment in Part A of the trust was not properly exercised, then Part A of the H.P. Trustshould be added to Part B of the H.P. Trust. The H.P. Trust further directed that Part B bedistributed only to Larry Perlstein's descendants, thus excluding Deena Perlstein. The plaintiffslearned of this problem with the funding of the L.A.P. Trust on January 26, 1996.

The plaintiffs originally filed their complaint against the defendants for legal malpractice inthe circuit court of Cook County on January 8, 1998. The plaintiffs voluntarily dismissed that caseon September 5, 2001, but subsequently refiled their complaint on April 10, 2002, in the circuit courtof Lake County. We note that section 13--217 of the Code of Civil Procedure (the Code) (735 ILCS5/13--217 (West 2002)) permits a plaintiff to refile an action, which has been previously voluntarilydismissed, within one year from the date of dismissal, whether or not the limitations period forbringing such an action has expired. Picciotto v. RGB Riverboat, 323 Ill. App. 3d 708, 709 (2001).

In their complaint, the plaintiffs alleged that the defendants had committed malpractice indrafting Larry Perlstein's will because the power of appointment exercised in Larry Perlstein's will didnot comply with the requirements of the H.P. Trust. This malpractice compromised the validity ofthe entire exercise of that power and the validity of the L.A.P. Trust. The complaint alleged that,because of the defendants' malpractice, Schneider had suffered a loss of $300,000. The complaintfurther alleged that, due to the malpractice, Deena Perlstein was forced to enter into an agreementwith the descendants of Larry Perlstein to reform his will. The descendants of Larry Perlstein agreedon a reformation of the L.A.P. Trust that recognized partial validity of the exercise of the power ofappointment in Larry Perlstein's will in exchange for certain concessions on the part of DeenaPerlstein. Those concessions included relinquishment of (1) her position as trustee of the L.A.P.Trust; (2) certain insurance proceeds not involved in these proceedings; (3) a large amount ofvaluable personal property that she inherited; and (4) the ability to invade the principal of the trust. In addition to these losses, Deena Perlstein alleged that she had become responsible for her ownattorney fees and had lost the use of the income from the L.A.P. Trust since Larry Perlstein's death.

On May 17, 2002, the defendants filed a motion to dismiss the plaintiffs' complaint pursuantto section 2--619(a)(5) of the Code (735 ILCS 5/2--619(a)(5) (West 2002)). The defendantsacknowledged that the plaintiffs' Lake County action related back to the date of the original CookCounty complaint, filed January 8, 1998. Nonetheless, the defendants argued that the plaintiffs'original complaint had not been timely filed because it had not been filed within six months of LarryPerlstein's will being admitted to probate, which was required by section 8--1(a) of the Probate Actof 1975 (Probate Act) (755 ILCS 5/8--1(a) (West 2002)), or within the time for claims to be filedunder section 18--3 of the Probate Act (755 ILCS 5/18--3 (West 2002)). As such, the defendantsalleged that the plaintiffs' original complaint was time-barred by section 13--214.3(d) of theLimitations Act. 735 ILCS 5/13--214.3(d) (West 1994).

On September 18, 2002, the plaintiffs filed an amended response to the defendants' motionto dismiss. In their response, the plaintiffs argued that section 13--214.3(d) of the Limitations Act(735 ILCS 5/13-214.3(d) (West1994)) did not apply to their cause of action. The plaintiffs arguedthat Public Act 89--7, effective March 9, 1995, had repealed section 13--214.3(d) of the LimitationsAct. Although the plaintiffs acknowledged that Public Act 89--7 had subsequently been held to beunconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), they argued that they hada reasonable period of time after the decision in Best was issued to file their complaint. Because theyfiled their complaint within three weeks of the Best decision, the plaintiffs argued that they had filedit within a reasonable period. The plaintiffs therefore argued that it was improper to dismiss theircomplaint based on section 13--214.3(d) of the Limitations Act. 735 ILCS 5/13--214.3(d) (West2002).

On October 1, 2002, the trial court granted the defendants' motion to dismiss. The trial courtheld that, despite the harsh result, the doctrine of void ab initio applied in this case. The trial courtdetermined that pursuant to the doctrine of void ab initio, the result of the Best decision (179 Ill. 2d367), was that section 13--214.3(d) should be treated as if it had always remained in effect. As such,the trial court dismissed the plaintiffs' complaint with prejudice pursuant to section 2--619(a)(5) ofthe Code (735 ILCS 5/2--619(a)(5) (West 2002)) as time-barred by section 13--214.3(d) of theLimitations Act (735 ILCS 5/13--214.3(d) (West1994)). Following the denial of their motion toreconsider, the plaintiffs filed a timely notice of appeal.

On appeal, the plaintiffs argue that the trial court erred in granting the defendants' motion todismiss their complaint as time-barred pursuant to section 2--619(a)(5) of the Code. 735 ILCS 5/2--619(a)(5) (West 2002). On an appeal from a trial court's involuntary dismissal of a complaintpursuant to section 2--619 of the Code (735 ILCS 5/2--619 (West 2002)), we must determine "'whether the existence of a genuine issue of material fact should have precluded the dismissal or,absent such an issue of fact, whether dismissal is proper as a matter of law.' " Doyle v. Holy CrossHospital, 186 Ill. 2d 104, 109-10 (1999), quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge,156 Ill. 2d 112, 116-17 (1993). Our review is de novo. In re Estate of Mayfield, 288 Ill. App. 3d534, 542 (1997). If a motion to dismiss is filed upon any of the possible bases listed in section 2--619, the party opposing the motion can present "affidavits or other proof denying the facts allegedor establishing facts obviating the grounds of defect." 735 ILCS 5/2-- 619(c) (West 2002).

The plaintiffs first contend that because section 13--214.3(d) had recently been revived at thetime they filed their complaint, they were entitled to a reasonable period of time following the changein the law to file their complaint. We agree. Section 13--214.3 of the Limitations Act first becameeffective in 1991 and it provided a two-year limitations period and a six-year repose period for alllegal malpractice claims. 735 ILCS 5/13--214.3(b), (c) (West 2002). Section 13--214.3 furtherprovided that when an injury does not occur until the death of the client and the client's will isadmitted to probate, an action for malpractice "must be commenced within the time for filing claimsagainst the estate or a petition contesting the validity of the will of the deceased person, whicheveris later, as provided in the Probate Act of 1975." 735 ILCS 5/13--214.3(d) (West 1994). We notethat in the present case, the injury did not occur until the death of Larry Perlstein, the person forwhom the defendants rendered professional services. Because Larry Perlstein's will was admitted toprobate, section 13--214.3(d) of the Limitations Act applies to the plaintiffs' claim for legalmalpractice. See Poullette v. Silverstein, 328 Ill. App. 3d 791, 796-97 (2002); Witt v. Jones & JonesLaw Offices, P.C., 269 Ill. App. 3d 540, 542-43 (1995).

In March 1995, section 13--214.3 of the Limitations Act was amended as part of Public Act89--7, the tort reform legislation passed by the Illinois General Assembly. Public Act 89--7 eliminatedsection 13--214.3(d) from the Limitations Act. As such, the two-year limitations period and six-yearrepose period applied to all legal malpractice actions, even when the injury occurred on the death ofthe client and the client's will was admitted to probate. However, on December 18, 1997, thesupreme court in Best declared the core provisions of Public Act 89--7 unconstitutional. Best, 179Ill. 2d at 467. The elimination of section 13--214.3(d) from the Limitations Act was not one of thecore provisions of Public Act 89--7. Nonetheless, the court deemed invalid the noncore provisionsof Public Act 89--7, which were not directly challenged in that case, on the grounds that they werenot severable from the core provisions. Best, 179 Ill. 2d at 471. Accordingly, the court held thatPublic Act 89--7 was unconstitutional in its entirety. Best, 179 Ill. 2d at 467.

When a statute is held to be unconstitutional in its entirety, it is void ab initio. People v.Gersch, 135 Ill. 2d 384, 390 (1990). In Gersch, the defendant asserted his right to waive a trial byjury. Gersch, 135 Ill. 2d at 387. However, the trial court denied the defendant's request for a benchtrial when the State asserted its statutory right to a jury trial under section 115--1 of the Code ofCriminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115--1). Gersch, 135 Ill. 2d at 387-88. Section 115--1 had been amended in July 1987 and January 1988 to provide a list of offenses wherea defendant could not waive a jury trial without the State's assent. Gersch, 135 Ill. 2d at 391. A jurytrial was held and the defendant was found guilty of murder. Gersch, 135 Ill. 2d at 388. However,the supreme court later held the 1987 and 1988 amendments to section 115--1 to be unconstitutional. People ex rel. Daley v. Joyce, 126 Ill. 2d 209, 222 (1988). Consequently, the defendant appealed hisconviction, arguing that he was denied his constitutional right to a bench trial. Gersch, 135 Ill. 2dat 389.

The Gersch court determined that the effect of enacting an unconstitutional amendment to astatute is to leave the law in force as it was before the adoption of the amendment. Gersch, 135 Ill.2d at 390. The Gersch court explained that to hold a judicial decision that declares a statuteunconstitutional as not retroactive would forever prevent those injured under the unconstitutionalstatute from receiving a remedy for the deprivation of a guaranteed right. Gersch, 135 Ill. 2d at 397. Consequently, the Gersch court held that the version of section 115--1 that existed prior to July 1987was revived. Gersch, 135 Ill. 2d at 391. The prior version did not require the State's assent for adefendant to waive a jury trial. Gersch, 135 Ill. 2d at 390. Therefore, the defendant's conviction wasreversed and the cause was remanded for a new trial. Gersch, 135 Ill. 2d at 402.

In so ruling, the Gersch court recognized that a number of courts have struggled with thepotentially harsh results of the void ab initio doctrine. Gersch, 135 Ill. 2d at 399-400. The void abinitio doctrine does not take into account that people may have relied on the unconstitutional act. Gersch, 135 Ill. 2d at 400. However, the Gersch court noted that scholars have found the void abinitio principle especially appropriate in the area of criminal prosecution and in cases involvingcriminal procedure. Gersch, 135 Ill. 2d at 400. Consequently, the Gersch court found no persuasivepolicy argument for departing from the void ab initio doctrine. Gersch, 135 Ill. 2d at 401.

However, in a special concurrence, one member of the Gersch court expressed that theapplication of the void ab initio principle must not be the inevitable consequence in every case. Gersch, 135 Ill. 2d at 406 (Miller, J., specially concurring). The special concurrence in Gersch statedthat, rather than automatically conclude that all unconstitutional statutes must be deemed to havebeen void from their inception, the more appropriate course requires that a reviewing court determinein an individual case or category of cases the effect that should be accorded a subsequent declarationof statutory invalidity. Gersch, 135 Ill. 2d at 406 (Miller, J., specially concurring). Furthermore,discussing the significance of a declaration of statutory invalidity, the United States Supreme Courthas stated:

"The courts below have proceeded on the theory that the Act of Congress, havingbeen found to be unconstitutional, was not a law; that it was inoperative, conferring no rightsand imposing no duties, and hence affording no basis for the challenged decree. [Citations.]It is quite clear, however, that such broad statements as to the effect of a determination ofunconstitutionality must be taken with qualifications. The actual existence of a statute, priorto such a determination, is an operative fact and may have consequences which cannot justlybe ignored. The past cannot always be erased by a new judicial declaration. The effect of thesubsequent ruling as to invalidity may have to be considered in various aspects ***." ChicotCounty Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 84 L. Ed. 329, 332-33,60 S. Ct. 317, 318-19 (1940).

In the present case, the appropriate course requires that the effect of the determination ofunconstitutionality in Best be taken with qualifications. The Gersch court strictly applied the voidab initio doctrine because scholars had found the void ab initio principle especially appropriate in thearea of criminal prosecution and in cases involving criminal procedure. Gersch, 135 Ill. 2d at 400. Furthermore, the Gersch court found no persuasive policy argument for departing from the void abinitio principle. Gersch, 135 Ill. 2d at 401. Here, however, unlike in Gersch, we are not dealing witha criminal prosecution. In addition, there is a persuasive policy argument for departing from the voidab initio principle under the circumstances present in this case.

In Illinois, an amendment shortening a limitations period will not be retroactively applied soas to terminate a cause of action unless the party has had a reasonable period of time after theamendment's effective date in which to file an action. Griffin v. Goldenhersch, 323 Ill. App. 3d 398,408 (2001), citing Goodman v. Harbor Market, Ltd., 278 Ill. App. 3d 684, 694 (1995). This judicialrule of construction applies even in those instances in which the legislature has expressed an intentthat the limitations period be applied retroactively. Goodman, 278 Ill. App. 3d at 692. Although thisrule is stated in terms of statutes of limitations, our supreme court has applied it in cases involvingstatutes of repose. Goodman, 278 Ill. App. 3d at 692-93, citing Moore v. Jackson Park Hospital, 95Ill. 2d 223, 237 (1983), and Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 422 (1986). Section 13--214.3(d) of the Limitations Act acts as a statute of repose. Poulette, 328 Ill. App. 3d at 796.

The reasonable period of time in which a plaintiff may bring suit for injuries sustained beforethe effective date of a statute of repose can never, however, be more than the repose period itself. Griffin, 323 Ill. App. 3d at 408. The reasonable period is calculated from the effective date of thestatute. Griffin, 323 Ill. App. 3d at 408; Meyers v. Underwood, 316 Ill. App. 3d 970, 984 (2000). Unlike with statutes of limitations, most courts apply the repose period as the reasonable period forfiling after the statute of repose provision became effective. Griffin, 323 Ill. App. 3d at 408. However, although the reasonable period can never be more than the repose period itself, that doesnot necessarily mean that so long as the period does not exceed that limit, it can be called reasonable. Meyers, 316 Ill. App. 3d at 984-85. There is no fixed rule for determining what constitutes areasonable time; such a determination turns on the particular facts and circumstances presented to thecourt in each case. Meyers, 316 Ill. App. 3d at 991, citing M.E.H v. L.H., 177 Ill. 2d 207, 217(1997).

In the present case, Larry Perlstein died on September 23, 1995. At that time, Public Act 89--7 was still in effect and the plaintiffs were afforded a two-year limitations period and a six-year reposeperiod for all legal malpractice claims. As the plaintiffs discovered their injury on January 26, 1996,and the alleged malpractice occurred in the writing of Larry Perlstein's will dated October 23, 1992,the filing of the plaintiffs' complaint on January 8, 1998, fell within the two-year limitations periodand the six-year repose period. However, on December 18, 1997, just before the plaintiffs filed theircomplaint, Public Act 89--7 was found unconstitutional and the law was changed to once againinclude the repose period of section 13--214.3(d). Best, 179 Ill. 2d at 467. The repose period ofsection 13--214.3(d) would have required the plaintiffs' complaint to be filed on or before April 26,1996. Pursuant to section 13--214.3(d), April 26, 1996, is the later of the dates by which theplaintiffs could file: (1) a petition contesting the validity of the will, specifically, April 16, 1996; and(2) a claim against Larry Perlstein's estate, as set forth in the claim notice published pursuant tosection 18--3 of the Probate Act, specifically, April 26, 1996. See 735 ILCS 5/13--214.3(d) (West1994).

Consequently, if we strictly applied the void ab initio principle, the plaintiffs' cause of actionwould have been instantaneously barred on December 18, 1997. Where causes of action wouldotherwise be instantaneously barred by the statute of repose, courts have allowed plaintiffs to filecauses of action within a reasonable period after the effective date of the act creating the reposeperiod. M.E.H. v. L.H., 177 Ill. 2d 207, 216-17 (1997); Griffin, 323 Ill. App. 3d at 408. Weacknowledge that the reasonable period doctrine is normally applied when there is a new legislativeenactment of a statute of repose or a statute of limitation. However, in the present case, section 13--214.3(d) was revived, not due to a legislative enactment, but due to a judicial decision.

Nonetheless, we believe that the reasonable period doctrine is applicable. A change in astatute of repose by either legislative enactment or judicial decision yields the same result. In eitherevent, a change in the law occurs that can instantaneously deprive a plaintiff of the opportunity tobring her cause of action before the court. Such a result is fundamentally unfair. See Moore, 95 Ill.2d at 231 (a State may not deprive a person of all existing remedies for the enforcement of a right,which the State has no power to destroy, unless there is, or was, afforded to her some realopportunity to protect the right). Furthermore, when a statute is changed by judicial decision, as inthe present case, the purpose behind the reasonable period doctrine is even better served becausethere is no forewarning of the change in the law. In contrast, before a statute is changed by legislativeenactment, there is usually discussion concerning the change, the public is made aware that the lawis going to change, and the change is given a future effective date. Thus, on equity grounds, it is evenmore essential to apply the reasonable period doctrine when a statute of repose is changed by judicialdecision. See Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 91 (1997) (all reviewingcourts enjoy the power to exercise discretion in a just manner so as to do equity). Under the presentcircumstances, we find that the filing of the plaintiffs' complaint, just three weeks after the Bestdecision, was within a reasonable period of time after the effective date of the change in the law. Consequently, we hold that the plaintiffs' complaint is not time-barred by section 13--214.3(d) of theLimitations Act. 735 ILCS 13--214.3(d) (West 1994). As such, the trial court erred when it grantedthe defendant's motion to dismiss.

In so ruling, we find unpersuasive the defendants' reliance on Hurst v. Capital Cities Media,Inc., 323 Ill. App. 3d 812 (2001). The Hurst case involved section 13--217 of the Code (735 ILCS5/13--217 (West 2002)), which was also modified by Public Act 89--7. The original version ofsection 13--217 (735 ILCS 5/13--217 (West 1994)), in effect prior to Public Act 89--7, expresslypermitted a plaintiff only one opportunity to refile a claim after he had voluntarily dismissed hisaction, even if the applicable limitations period had not expired. Hurst, 323 Ill. App. 3d at 820. Public Act 89--7 modified section 13--217 (735 ILCS 5/13--217 (West Supp. 1995)) to permitmultiple refilings following a voluntary dismissal of an action where the limitations period had notexpired. Hurst, 323 Ill. App. 3d at 820.

In Hurst, the plaintiff had twice dismissed and twice refiled his cause of action in 1996 forfalse light invasion of privacy. Hurst, 323 Ill. App. 3d at 819-20. Public Act 89--7 was foundunconstitutional approximately one year after the pleadings were filed in the Hurst case. Hurst, 323Ill. App. 3d at 820. The trial court certified, for appellate review, the question of whether the single-refiling rule applied to the case. Hurst, 323 Ill. App. 3d at 815. As such, four years after the Bestdecision, the reviewing court had to determine which version of section 13--217 should be appliedto the case. Hurst, 323 Ill. App. 3d at 820. The plaintiff argued that the Best decision should not beapplied to his case because he relied in good faith on the validity of the Public Act 89--7 version ofsection 13--217. Hurst, 323 Ill. App. 3d at 820. However, citing the void ab initio doctrine and theGersch case, the reviewing court held that, despite the harsh results, a statute adjudged to beunconstitutional affords no protection to those who acted under it. Hurst, 323 Ill. App. 3d at 821. Consequently, the reviewing court, applying the Best decision retroactively, held that the originalversion of section 13--217 applied to the plaintiff's complaint. Hurst, 323 Ill. App. 3d at 822. Underthat version of the statute, the plaintiff was allowed only one refiling of an action even though thelimitations period had not expired. Hurst, 323 Ill. App. 3d at 822. Accordingly, the plaintiff's causeof action was barred by the single-refiling rule. Hurst, 323 Ill. App. 3d at 822.

We find Hurst distinguishable from the present case. In Hurst, there was no persuasive policyreason for departing from the void ab initio doctrine. The plaintiff in that case had twice dismissedand twice refiled his cause of action. As such, despite the application of the void ab initio doctrine,the plaintiff was not deprived of the opportunity to protect or enforce his rights. In fact, the plaintiffwas afforded two opportunities to enforce his rights prior to the change in the law. Conversely, inthe instant case, if the void ab initio doctrine were applied, the plaintiffs would be deprived of evenone opportunity to file their complaint. For the reasons discussed above, we find such a resultinequitable based on the facts of the present case. As such, because the policy considerations herediffer from those in Hurst, Hurst is inapplicable to the case at bar.

Finally, as this issue is dispositive of this appeal, we decline to address the plaintiffs' additionalcontentions on appeal.

For the reasons stated, the judgment of the circuit court of Lake County is reversed and thiscause is remanded for additional proceedings.

Reversed and remanded.

O'MALLEY, P.J., and BOWMAN, J., concur.