Terra Foundation filed a legal malpractice action against DLA Piper over a sale. The Illinois trial court dismissed suit finding that it was barred as a matter of law by the six-year statute of repose. The appellate court affirmed the dismissal.
The trial court had granted the motion and dismissed the action with prejudice, based on the language of the statute of repose providing that a legal malpractice claim may not be commenced more than 6 years after the date on which the act or omission occurred. The court concluded that "the alleged negligence occurred when the first amendment of the contract that was executed May 29, 2007.
On appeal, Terra first argued the statute of repose did not begin to run until the closing on the sale of the property on February 13, 2013, which was the last day of defendant's representation as to the sale. This argument was based on Terra's belief that a transactional malpractice case is treated differently under the statute of repose than a litigation malpractice case. In addition, Terra maintained that the earliest the Illinois repose statute could begin to run was at the time of a March 2010 letter agreement which amended the purchase agreement and other agreements. Finally, Terra argued that defendant's negligence did not end at the time of the first amendment; rather, it continued with defendant's separate failures to include the exclusionary language in each of the agreements. The appellate court rejected Terra's arguments and concluded that the event giving rise to Terra's injuries occurred on May 29, 2007, when Terra and NM Project executed the first amendment
Terra argued that a transactional malpractice action is treated differently from a litigation malpractice action under the statute of repose. According to Terra, in a transactional context, the statute of repose does not begin to run "until the completion of the last affirmative act of representation in the matter that included the attorney's negligence," and in this case, that would be the March 2013 closing. The court rejected Terra's argument, and stated that the statute of repose is not tolled merely by the continuation of the attorney-client relationship nor by the attorney's ongoing duty to correct past mistakes.
This Illinois case addressed when the statute of repose commences, and the court rejected the argument that the statute does not commence until the last act of representation, but starts to run on the date on which the act or omission occurred resulting in damages. The court also concluded that the statute of repose is not tolled by the continuation of the attorney-client relationship or by the attorney's ongoing duty to correct past mistakes.