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    Michael A. DOYLE, as Trustee of the Patricia A. O'Malley Supplemental Trust, Plaintiff-Appellant, v. Thomas B. HOOD and Thomas B. Hood Law Offices, P.C., Defendants-Appellees.
    No. 2-17-1041
    Appellate Court of Illinois, Second District.
    Opinion filed September 28, 2018
    Brian R. Holman and Dennis H. Stefanowicz Jr., of Holman & Stefanowicz, LLC, of Chicago, for appellant.
    Daniel F. Konicek, Michael P. Hannigan, and Amanda J. Hamilton, of Konicek & Dillon, P.C., of Geneva, for appellees.
   JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Michael A. Doyle, as trustee of the Patricia A. O'Malley Supplemental Trust (Supplemental Trust), sued defendants, Thomas B. Hood and Thomas B. Hood Law Offices, P.C., alleging legal malpractice in connection with defendants' preparation of the living trust of his father, Harry G. Doyle Jr. (through which the Supplemental Trust, a special-needs trust, was created) and his will. Defendants moved to dismiss Michael's complaint, alleging that it was time-barred under the special repose period in section 13-214.3(d) of the Code of Civil Procedure (Code) ( 735 ILCS 5/13-214.3(d) (West 2016) ). The trial court granted the motion and dismissed the complaint with prejudice. Michael appeals. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In 2011, Harry retained defendants to prepare documents in connection with an estate plan for him and, according to Michael, his wife, Patricia A. O'Malley.

(Patricia suffered from Alzheimer's disease.) Defendants prepared the Harry G. Doyle Jr. Revocable Living Trust (Living Trust) and Harry's will. On December 15, 2011, Harry executed the two documents.

¶ 4 The Living Trust established the Supplemental Trust, with Patricia as its beneficiary. The Living Trust provided that Patricia

"has a disability which substantially impairs her ability to provide for her own financial and support needs. As a result of said disability, [Patricia] will have the right to receive certain benefits from public programs. Continued full access to the benefits of these programs is essential to meet [Patricia's] needs for basic maintenance, support services and medical care. At that same time, these programs may leave gaps in basic services, many provide adequately [sic ] in emergencies, and may not provide for needs, wants and opportunities beyond basic necessities."

The document further provided:

"It is the intent of the Grantor that the Trust assets are to be used to supplement and never supplant benefits of public programs, and that no distribution be made from this trust that would disqualify [Patricia] from receiving the benefits of public programs or that would reduce the level of such benefits. It is expressly provided that no payment should in any way jeopardize a Medicaid payment for care of any type including the care provided in a nursing home facility."

¶ 5 The Supplemental Trust was intended for Patricia to receive funds while retaining her eligibility for certain federal or state means-tested benefit programs. It was revocable by Harry during his lifetime and is irrevocable as to Patricia and her assigns. The Supplemental Trust will terminate upon Patricia's death.

¶ 6 On January 14, 2012, Harry died. Upon his death, Michael became the trustee of the Living Trust and the Supplemental Trust and the assets in the Living Trust were distributed to the Supplemental Trust. Also upon Harry's death, Michael became the executor of Harry's will.

¶ 7 On March 15, 2012, defendants filed Harry's will with the clerk of the circuit court of Lake County (case No. 12-W-312). No letters of office were issued, and Harry's will was not admitted to probate.

¶ 8 In late 2013, Patricia was admitted into a long-term-care facility in Wheeling. On July 22, 2014, an application for long-term-care benefits under the Aid to the Aged, Blind, or Disabled program ( 305 ILCS 5/3-1 et seq. (West 2012) ) was filed on Patricia's behalf, requesting that her benefits begin as of April 1, 2014.

¶ 9 On February 25, 2016, according to Michael, the Department of Human Services (DHS) issued a decision, finding that, as of April 1, 2014, the Supplemental Trust contained $238,437.67 to pay for Patricia's long-term care. The DHS subtracted Patricia's asset allowance of $2000 from the $238,437.67 and imposed a spend-down of the remaining $236,437.67.

¶ 10 On May 4, 2016, an appeal was filed with the DHS on Patricia's behalf. On August 26, 2016, the DHS issued its final administrative decision (which was confirmed by an analyst recommendation on September 1, 2016, by the Department of Healthcare and Family Services), finding that, instead of requiring a spend-down, the assets held by Harry and transferred upon his death resulted in a penalty to Patricia, who "did not receive fair market value" for the assets. The penalty was assessed at $234,561. Patricia's application for long-term-care benefits was approved subject to payment of the penalty from the funds in the Supplemental Trust.

¶ 11 On May 1, 2017, Michael, as trustee of the Supplemental Trust, sued defendants, alleging professional negligence. In a first amended complaint, he alleged that defendants breached the duties they owed to Harry during their attorney-client relationship, in that they created the Supplemental Trust through the Living Trust, failed to create the Supplemental Trust through Harry's will, failed to prepare the necessary estate-planning documents to maximize funds available for Patricia's care and maintenance, and failed to exercise reasonable and ordinary care and diligence in preparing Harry's and Patricia's estate plan. Michael claimed that, had defendants created the Supplemental Trust through the will, as opposed to the Living Trust, the transfer of the funds from the Living Trust to the Supplemental Trust upon Harry's death would have been exempt and no penalty would have been imposed. 42 U.S.C. §§ 1382b(e)(2)(A), 1396p(d)(2)(A)(ii) (2012) ; 89 Ill. Adm. Code § 120.347(c) (2013).

¶ 12 On October 5, 2017, defendants moved to dismiss Michael's complaint. 735 ILCS 5/2-619, 13-214.3(d) (West 2016). They argued that the claim was time-barred and that Patricia's disability had no bearing on the application of the statute of repose. Defendants' position was that the injury occurred upon Harry's death, in 2012, and that Michael's complaint, filed in 2017, was beyond the two-year repose period in section 13-214.3(d). They noted that the complaint alleged that the attorney-client relationship was between Harry and defendants. As to Patricia's condition, defendants argued that the tolling provisions of subsections (e) and (f) of section 13-214.3 did not apply, because she was a beneficiary of the Supplemental Trust and the provisions apply only to persons entitled to bring an action, which, here, was plaintiff as the trustee. 735 ILCS 5/13-214.3(e), (f) (West 2016). Further, subsection (f), by its own terms, did not toll or avoid the repose period in subsection (d).

¶ 13 On November 28, 2017, the trial court granted defendants' motion and dismissed Michael's complaint with prejudice. Michael appeals.

¶ 14 II. ANALYSIS

¶ 15 Michael argues that the trial court erred in dismissing his complaint as time-barred. For the following reasons, we disagree.

¶ 16 A motion to dismiss under section 2-619 admits the legal sufficiency of the complaint and raises defects, defenses, or other affirmative matters that appear on the face of the complaint or are established by external submissions that act to defeat the claim. Becker v. Zellner , 292 Ill. App. 3d 116, 122, 226 Ill.Dec. 175, 684 N.E.2d 1378 (1997). All pleadings and supporting documents are interpreted in the light most favorable to the nonmoving party. Wackrow v. Niemi , 231 Ill. 2d 418, 422, 326 Ill.Dec. 56, 899 N.E.2d 273 (2008). We review de novo a trial court's ruling on a section 2-619 motion to dismiss. Id.

¶ 17 To prevail on a legal-malpractice claim, a plaintiff must plead and prove that (1) the defendant attorneys owed the plaintiff a duty of due care arising from the attorney-client relationship, (2) the defendants breached that duty, and (3) as a direct and proximate result of that breach, the plaintiff suffered injury. Sexton v. Smith , 112 Ill. 2d 187, 193, 97 Ill.Dec. 411, 492 N.E.2d 1284 (1986).

¶ 18 Section 13-214.3 of the Code contains the limitations and repose periods for actions for legal malpractice. Addressing these concepts in a general sense, the supreme court has explained:

"In contrast to a statute of limitations, which determines the time within which a lawsuit may be brought after a cause of action has accrued, a statute of repose extinguishes the action after a defined period of time, regardless of when the action accrued. DeLuna v. Burciaga , 223 Ill. 2d 49, 61 [306 Ill.Dec. 136, 857 N.E.2d 229] (2006) (citing Ferguson v. McKenzie , 202 Ill. 2d 304, 311 [269 Ill.Dec. 188, 780 N.E.2d 660] (2001) ). It begins to run when a specific event occurs, 'regardless of whether an action has accrued or whether any injury has resulted.' Ferguson , 202 Ill. 2d at 311 [269 Ill.Dec. 188, 780 N.E.2d 660]. Thus, the statute of repose limit is ' "not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered." ' CTS Corp. v. Waldburger , 573 U.S. 1, 8, 134 S.Ct. 2175, 2182-83 [189 L.Ed.2d 62] (2014) (quoting 54 C.J.S. Limitations of Actions § 7, at 24 (2010) ). The purpose of a repose period is to terminate the possibility of liability after a defined period of time. After the expiration of the repose period, there is no longer a recognized right of action. Evanston Insurance Co. v. Riseborough , 2014 IL 114271, ¶ 16 [378 Ill.Dec. 778, 5 N.E.3d 158]." Folta v. Ferro Engineering , 2015 IL 118070, ¶ 33, 397 Ill.Dec. 781, 43 N.E.3d 108.

¶ 19 Turning to the statutory framework at issue here, section 13-214.3 of the Code states, in relevant part:

"(b) An action for damages based on tort, contract, or otherwise (i) against an attorney arising out of an act or omission in the performance of professional services * * * must be commenced within 2 years from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought.
(c) Except as provided in subsection (d), an action described in subsection (b) may not be commenced in any event more than 6 years after the date on which the act or omission occurred.
(d) 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.
(e) If the person entitled to bring the action is under the age of majority or under other legal disability at the time the cause of action accrues, the period of limitations shall not begin to run until majority is attained or the disability is removed.
(f) If the person entitled to bring an action described in this Section is not under a legal disability at the time the cause of action accrues, but becomes under a legal disability before the period of limitations otherwise runs, the period of limitations is stayed until the disability is removed. This subsection (f) does not invalidate any statute of repose provisions contained in this Section." (Emphasis added.) 735 ILCS 5/13-214.3(b) - (f) (West 2016).

¶ 20 The limitations period in section 13-214.3(b) "incorporates the 'discovery rule,' which serves to toll the limitations period to the time when the plaintiff knows or reasonably should know of his or her injury." Snyder v. Heidelberger , 2011 IL 111052, ¶ 10, 352 Ill.Dec. 176, 953 N.E.2d 415.

¶ 21 The six-year repose period in section 13-214.3(c) "begins to run as soon as an event giving rise to the malpractice claim occurs, regardless of whether plaintiff's injury has yet been realized." Lamet v. Levin , 2015 IL App (1st) 143105, ¶ 20, 395 Ill.Dec. 669, 39 N.E.3d 136. "A statute of repose is not tolled by the discovery rule." Evanston Insurance Co. v. Riseborough , 2014 IL 114271, ¶ 16, 378 Ill.Dec. 778, 5 N.E.3d 158. Nor is it tolled merely by the continuation of the attorney-client relationship. Mauer v. Rubin , 401 Ill. App. 3d 630, 640, 339 Ill.Dec. 472, 926 N.E.2d 947 (2010). The repose period in subsection (c) "does not run from an 'injury,' but rather from an act or omission." Terra Foundation for American Art v. DLA Piper LLP (US) , 2016 IL App (1st) 153285, ¶ 44, 406 Ill.Dec. 598, 61 N.E.3d 202. A statute of repose "gives effect to a policy different from that advanced by a statute of limitations; it is intended to terminate the possibility of liability after a defined period of time." Ferguson v. McKenzie , 202 Ill. 2d 304, 311, 269 Ill.Dec. 188, 780 N.E.2d 660 (2001).

¶ 22 Section 13-214.3(d) contains a special two-year repose period (and was the primary basis upon which defendants here moved to dismiss), which is an exception to subsections (b) and (c). DeLuna , 223 Ill. 2d at 74, 306 Ill.Dec. 136, 857 N.E.2d 229. It applies when the injury caused by the malpractice occurs upon the client's death . 735 ILCS 5/13-214.3(d) (West 2016); Wackrow , 231 Ill. 2d at 424, 326 Ill.Dec. 56, 899 N.E.2d 273 ; see also Terra Foundation , 2016 IL App (1st) 153285, ¶ 44, 406 Ill.Dec. 598, 61 N.E.3d 202. Under section 13-214.3(d), if no letters of office are issued and no will is admitted to probate, the action must be filed within two years of the client's death. 735 ILCS 5/13-214.3(d) (West 2016).

"Section 13-214.3(d) * * * create[s] an exception to the six-year repose period for attorney malpractice actions where the alleged injury does not occur until the death of the person for whom professional services were rendered. However, that exception is not in addition to the two-year statute of limitations and the six-year statute of repose. Rather, the exception applies instead of the two-year statute of limitations and the six-year statute of repose. As the appellate court in Poullette [v. Silverstein , 328 Ill. App. 3d 791, 263 Ill.Dec. 26, 767 N.E.2d 477 (2002),] correctly held, '[n]othing in the statute conditions the application of subsection (d) on whether the repose period in subsection (c) has expired.' Poullette , 328 Ill. App. 3d at 795 [263 Ill.Dec. 26, 767 N.E.2d 477]." (Emphases in original.) Wackrow , 231 Ill. 2d at 427, 326 Ill.Dec. 56, 899 N.E.2d 273.

The section 13-214.3(d) "exception may shorten the limitation period for legal malpractice complaints and may mean that a plaintiff's action is barred before [he or] she learns of [his or] her injury. However, the fact that a repose provision 'may, in a particular instance, bar an action before it is discovered is an accidental rather than necessary consequence.' " Id. (quoting Mega v. Holy Cross Hospital , 111 Ill. 2d 416, 424, 95 Ill.Dec. 812, 490 N.E.2d 665 (1986) ).

¶ 23 Michael argues that the repose period in subsection (d) does not apply here and that, instead, subsection (c) applies. He contends that, on December 15, 2011, upon Harry's execution of his will and the Living Trust, defendants committed their last acts of malpractice. On May 1, 2017, which was within the six-year repose period in subsection (c), Michael timely filed his complaint against defendants. He asserts that the trial court's ruling that subsection (d) applied would have required him to file his suit on or before January 14, 2014 (i.e. , within two years of Harry's death. However, it was not until about 32 months later, on August 26, 2016-when the DHS issued its final decision, imposing a $234,561 penalty on Patricia-that Michael first learned of Patricia's injury. Because defendants created the Supplemental Trust through the Living Trust, it was considered not a third-party special-needs trust but instead a special-needs trust that was set up by Patricia. As a result, all asset transfers from Patricia or Harry were subject to a 60-month look-back period from when Patricia applied for medical assistance, on April 1, 2014. 89 Ill. Adm. Code § 120.388(a) (2012). The penalty assessed against Patricia, Michael argues, resulted from asset transfers conducted during the look-back period. Thus, the penalty was the result of defendants' malpractice in creating the Supplemental Trust through the Living Trust instead of Harry's will.

¶ 24 Michael concedes that Wackrow and Snyder are controlling. In Wackrow , the defendant, in 2002, prepared an amendment to a living trust for the plaintiff's brother. Under the amendment, the brother gifted his residence, or $300,000, to the plaintiff. Later that year the brother died and, in 2003, the plaintiff made a claim against the estate for the property promised to her under the amendment. In 2003, the probate court denied her claim, and, in 2004, the plaintiff filed a legal-malpractice claim against the defendant. The plaintiff alleged that, had the defendant conducted a property title search, it would have revealed that her brother did not own the property individually but that another trust owned it. The trial court granted the defendant's motion to dismiss the complaint as untimely under section 13-214.3(d). The supreme court agreed, holding first that the injury did not occur until the brother's death, because the plaintiff had alleged malpractice in the drafting of the amendment and the brother could have revoked or modified the amendment up until his death. Wackrow , 231 Ill. 2d at 425, 326 Ill.Dec. 56, 899 N.E.2d 273. Second, the court rejected the plaintiff's argument that the defendant rendered professional services to her as a third-party beneficiary and that the injury occurred when the administrator of her brother's estate denied her claim. Id. at 425-26, 326 Ill.Dec. 56, 899 N.E.2d 273. The court determined that the brother was the person to whom services were rendered and that accepting the plaintiff's argument "would eviscerate the repose provision" because "no claim against an estate would be barred until the death of each intended beneficiary of a will or trust. Such a result would be contrary to the legislative intent behind a statute of repose. * * * A period of repose is not intended to expand the possibility of liability indefinitely." Id. Finally, the plaintiff argued that, because she filed her complaint within the two-year limitations period, neither the six-year repose period nor the subsection (d) repose period applied. Id. at 426-27, 326 Ill.Dec. 56, 899 N.E.2d 273. The court rejected her argument, holding that the section 13-214.3(d) "exception is not in addition to the two-year statute of limitations and the six-year statute of repose. Rather, the exception applies instead of the two-year statute of limitations and the six-year statute of repose." (Emphases in original.) Id. at 427, 326 Ill.Dec. 56, 899 N.E.2d 273. The plaintiff, the court determined, had two years to file suit, unless letters of office were issued or the will was admitted to probate. Id. at 427-28, 326 Ill.Dec. 56, 899 N.E.2d 273. Because letters were issued and the will was admitted to probate, she should have filed her complaint within the period for filing claims against the estate or contesting the validity of the will (i.e. , six months, or no later than April 2003). She did not do so (she sued in 2004), and, thus, her complaint was untimely. Id. at 428-29, 326 Ill.Dec. 56, 899 N.E.2d 273.

¶ 25 In Snyder , 2011 IL 111052, ¶ 17, 352 Ill.Dec. 176, 953 N.E.2d 415, the supreme court held that subsection (c) applied where the defendant attorney, in 1997, prepared a deed conveying the marital home to the plaintiff and her husband as joint tenants with rights of survivorship. About 10 years later the husband died and, afterward, the plaintiff learned that, prior to the alleged malpractice, title to the home was held by a trustee of a land trust and her stepson was the sole beneficiary. Id. ¶¶ 1, 3. In 2008, the plaintiff sued the defendant, alleging legal malpractice ( id. ¶ 2 ), specifically that the defendant negligently prepared a quitclaim deed that failed to convey the property to the plaintiff and her husband as joint tenants with rights of survivorship. The trial court granted the defendant's motion to dismiss the claim as untimely under the six-year statute of repose in section 13-214.3(c). Id. ¶ 5. The supreme court affirmed the trial court's judgment and held that the injury occurred when the deed was prepared and executed and that, thus, the two-year limitations period in subsection (b) applied. Id. ¶ 17. However, because the plaintiff did not file her claim until 10 years later, the six-year repose period in subsection (c), which began to run when the improperly recorded deed was mailed in 1997 (the last act of representation by the defendant), barred her claim. Id. ¶¶ 17-18. Thus, the plaintiff's suit (in 2008) was untimely. Id. ¶ 18. The court distinguished Wackrow , noting that the trust amendment in that case was intended to take effect only upon the plaintiff's brother's death, not during his lifetime. Id. ¶¶ 14-15. Thus, up until that time, "the plaintiff was to receive nothing and there was no injury while [her brother] was alive." Id. ¶ 15. Prior to his death, the brother could have revoked the trust amendment or modified it. Id. The court further noted that, in the case before it, the defendant's services were intended to have an immediate benefit during the husband's lifetime; specifically, if he had legal title to the house, the joint-tenancy deed would have conveyed a one-half undivided interest to the plaintiff. A right of survivorship is "a present interest that is created by the conveyance of the property into joint tenancy." Id. ¶ 14. The deed's failure to create a joint tenancy "caused a present injury that occurred at the time the quitclaim deed was prepared." Id. The court rejected the plaintiff's argument that there can be more than one injury for statute-of-limitations purposes, holding that the use of the phrase "the injury" indicated that only a single injury triggers the limitations period in subsection (d). Id. ¶¶ 16-17. Further, the court noted that subsection (d) does not apply when the injury occurs prior to the client's death. Id. ¶ 17. Thus, a second injury did not occur when, after her husband's death, the plaintiff did not receive ownership of the entire property interest as a surviving joint tenant. Id. "At most, this event was an outgrowth or consequence of the injury caused by the failure of the quitclaim deed to convey the property to [the husband] and [the] plaintiff as joint tenants." Id.

¶ 26 Here, Michael maintains that these cases warrant a finding that the injury occurred when the Living Trust was prepared and executed, not upon Harry's death. He argues that, whereas in Wackrow the brother could have revoked the trust amendment or changed the beneficiary prior to his death, so the injury did not occur until his death, here the injury occurred immediately. According to Michael, even if Harry could have identified the problem and created a new Supplemental Trust for Patricia via a testamentary trust in his will, Patricia still would have been deemed to have created the initial Supplemental Trust, and thus any asset transfers would still have been subjected to the look-back period. In Michael's view, there was no opportunity to rectify defendants' malpractice within the month between the execution of Harry's documents and his death. Thus, he concludes, creating the Supplemental Trust through the Living Trust, which resulted in Patricia being deemed the creator of the Supplemental Trust, resulted in an injury that was not fixable prior to Harry's death or at any time.

¶ 27 We disagree with Michael's conclusory assertion that there was no opportunity to fix defendants' malpractice. Up until his death (and by the Living Trust's terms), Harry had the power to revoke or amend the Living Trust. Thus, Patricia's label as the creator of the Supplemental Trust could have been erased. Further, the Supplemental Trust was not even funded until Harry's death. Michael alleged in his complaint that, on or about the date Harry died, the assets in the Living Trust were distributed to the Supplemental Trust. No assessment of penalties was possible absent trust assets, which were not present until Harry's death. Indeed, Michael's complaint alleged that it was the transfer of the funds upon Harry's death, albeit from an incorrect vehicle, that resulted in the imposition of the penalty. Thus, the injury occurred upon Harry's death.

¶ 28 This conclusion is consistent with Wackrow and Snyder , where the supreme court approached the issue by looking at when the relevant documents became effective. In Wackrow , the amendment was intended to take effect only upon the client's death and, thus, subsection (d) applied. Wackrow , 231 Ill. 2d at 425, 326 Ill.Dec. 56, 899 N.E.2d 273. In Snyder , however, the court held that the provision did not apply, because the injury-the failure to realize that the property was in a land trust when the attorney prepared a quitclaim deed to it-occurred when the deed was delivered and recorded, because it became effective at that time. Snyder , 2011 IL 111052, ¶ 14, 352 Ill.Dec. 176, 953 N.E.2d 415. Here, the injury occurred when the Supplemental Trust could no longer be amended or revoked and was actually funded, both of which occurred upon Harry's death.

¶ 29 Next, Michael argues, without citing any authority, that subsection (d) is inapplicable because Patricia was one of defendants' clients and she is still alive. He notes that he alleged in his complaint that Harry retained defendants to prepare documents in connection with both his and Patricia's estate plan. Michael contends that it is illogical to think that defendants could properly prepare the necessary documents for Harry's estate plan without considering the needs of Patricia, who was the primary concern, especially considering that Harry was on his deathbed when he first retained and met with defendants. Further, he notes that Patricia's Alzheimer's disease had advanced to the point that she was considered disabled. The drafting of the Supplemental Trust, he urges, demonstrates that defendants were retained to prepare the documents for an estate plan for Harry and Patricia. Thus, in his view, Patricia has an individual claim against defendants, and section 13-214.3(d) is inapplicable because she is "the person for whom professional services were rendered" and she has not passed away. Defendants respond that Harry was the client and that Michael's complaint contains no allegation that Patricia was. They also point to her disability and note that, in his response to the motion to dismiss, Michael alleged that Patricia's disability precluded her from bringing the case on her own behalf.

¶ 30 We reject Michael's argument that subsection (d) cannot apply here. In Riseborough , 2014 IL 114271, 378 Ill.Dec. 778, 5 N.E.3d 158, a case addressing the subsection (c) six-year repose period, the supreme court held that section 13-214.3 does not require that the plaintiff be a client of the attorney who rendered the professional services. Id. ¶ 19. The court determined that the phrase " 'arising out of an act or omission in the performance of professional services' " in subsection (b) (and, we note, the similar reference to "the act or omission" in subsection (c) ) is not limited to clients of the attorney. Id. "[U]nder the express language of the statute, it is the nature of the act or omission, rather than the identity of the plaintiff, that determines whether the statute of repose applies to a claim brought against an attorney." Id. The court also noted that a contrary reading of the statute overlooks "that the repose period applies to claims 'arising out of an act or omission in the performance of professional services.' " (Emphasis in original.) Id. ¶ 23 (quoting 735 ILCS 5/13-214.3(b), (c) (West 2008) ). The "language indicates an intent by the legislature that the statute apply to all claims against attorneys concerning their provision of professional services. There is no express limitation that the professional services must have been rendered to the plaintiff. Nor does the statute state or imply that it is restricted to claims for legal malpractice." Id. "The statute unambiguously applies to all claims brought against an attorney arising out of actions or omissions in the performance of professional services." Id.

¶ 31 Riseborough did not address section 13-214.3(d), which contains different language from that in subsections (b) and (c). The subsection (d) exception applies to situations where "the injury caused by the act or omission does not occur until the death of the person for whom the professional services were rendered ." (Emphasis added.) 735 ILCS 5/13-214.3(d) (West 2016). The trigger for the exception is the death of the person for whom the professional services were rendered, who can only be the client. Petersen v. Wallach , 198 Ill. 2d 439, 447-48, 261 Ill.Dec. 728, 764 N.E.2d 19 (2002) ("section 13-214.3(d) was simply intended to create an exception to the six-year repose period for attorney malpractice actions where the alleged injury does not occur until the death of the client").

¶ 32 Generally, an attorney can be liable in negligence only to his or her client and not to nonclient third parties. Pelham v. Griesheimer , 92 Ill. 2d 13, 19, 64 Ill.Dec. 544, 440 N.E.2d 96 (1982). "[T]o establish a duty owed by the defendant attorney to the nonclient[,] the nonclient must allege and prove that the intent of the client to benefit the nonclient third party was the primary or direct purpose of the transaction or relationship." Id. at 20-21, 64 Ill.Dec. 544, 440 N.E.2d 96. In other words, the nonclient "must prove that the primary purpose and intent of the attorney-client relationship itself was to benefit or influence the third party." Id. at 21, 64 Ill.Dec. 544, 440 N.E.2d 96.

¶ 33 Here, Harry was the client. Michael failed to plead an attorney-client relationship between defendants and Patricia, failed to plead any duty to Patricia and breach thereof on defendants' part, and failed to plead that the primary purpose of defendants' services was to benefit Patricia. Defendants drafted two documents, the will and the Living Trust, both for Harry, and he executed both documents. Patricia is a beneficiary of one of the trusts created through the Living Trust. No documents were drafted for her. The Living Trust, which was revocable during Harry's lifetime, states that, during his life, it "shall be administered for [his] primary benefit." It is true that Michael alleged that Harry retained defendants to "prepare necessary documents in connection with his and his disabled wife's, Patricia A. O'Malley's, estate plan." However, in the portion of his complaint addressing the elements of a legal-malpractice claim, Michael alleged that there was an "attorney-client relationship between the Defendants and Harry ," that defendants owed Harry a legal duty as a result, and that the duty "to Harry " was breached. (Emphases added.) The complaint contains no allegation that there was an attorney-client relationship between defendants and Patricia or that defendants breached any duty to her. Nor does it allege that the primary purpose or intent of seeking defendants' services was for Patricia's benefit.

¶ 34 Michael next argues that the injury did not occur until Patricia was assessed the penalty in September 2016. Michael relies on Justice Freeman's dissenting opinion in Snyder , wherein he criticized the majority's analysis of when an injury occurs in legal-malpractice cases, which he believed precedent had established was when the plaintiff suffered a pecuniary injury. Snyder , 2011 IL 111052, ¶ 31, 352 Ill.Dec. 176, 953 N.E.2d 415 (Freeman, J., dissenting) (" 'For purposes of a legal malpractice action, a client is not considered to be injured unless and until he [or she] has suffered a loss for which he [or she] may seek monetary damages.' " (quoting Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd. , 216 Ill. 2d 294, 306, 297 Ill.Dec. 319, 837 N.E.2d 99 (2005) ); see also Eastman v. Messner , 188 Ill. 2d 404, 411, 242 Ill.Dec. 623, 721 N.E.2d 1154 (1999) (same). In a similar vein, Michael contends that we should follow Landau and Eastman , upon which Justice Freeman relied ( Snyder , 2011 IL 111052, ¶ 39, 352 Ill.Dec. 176, 953 N.E.2d 415 ), and ignore Wackrow and Snyder , which are "confusing and criticized." Under Landau and Eastman , Michael argues, Patricia was not injured until she suffered a loss for which she could seek monetary damages against defendants, i.e. , until August 26, 2016, when the DHS issued its decision imposing the penalty.

¶ 35 We reject Michael's argument. Justice Freeman's position in Snyder was in the minority. It is well settled that this court is bound to follow the supreme court's precedent, and "when our supreme court has declared law on any point, only [the supreme court] can modify or overrule its previous decisions, and all lower courts are bound to follow supreme court precedent until such precedent is changed by the supreme court." Rosewood Care Center, Inc. v. Caterpillar, Inc. , 366 Ill. App. 3d 730, 734, 304 Ill.Dec. 290, 852 N.E.2d 540 (2006). Our resolution of this appeal must conform to the majority's view. Snyder and Wackrow addressed section 13-214.3 and are, thus, directly relevant to this appeal. The cases upon which Michael relies are not directly relevant to our analysis. Neither Landau nor Eastman addressed section 13-214.3, and therefore they are easily distinguishable. Landau , in which the plaintiff sued the law firm that defended it on an indemnity claim arising from a medical-malpractice case, contains a general discussion of the actual-damages element of a legal-malpractice claim. Landau , 216 Ill. 2d at 306-07, 297 Ill.Dec. 319, 837 N.E.2d 99 ("where an attorney has been engaged to defend an action and the action is lost through the attorney's negligence, the amount of the judgment suffered by the client is, generally, a proper element of recovery in a malpractice proceeding against the attorney"). Eastman addressed whether an employer's insurer that paid workers' compensation benefits to an injured employee could assert a lien against the employee's recovery in a legal-malpractice suit based on the attorney's failure to timely file a personal-injury action on behalf of the employee against an alleged third-party tortfeasor. Eastman , 188 Ill. 2d at 411-12, 242 Ill.Dec. 623, 721 N.E.2d 1154 (holding that the insurer could not assert such a lien and addressing the concept of actual damages in a legal-malpractice suit). We decline Michael's request to ignore controlling supreme court precedent.

¶ 36 Michael argues next that section 13-214.3(c)'s six-year repose period applies. Under that section, regardless of Michael's knowledge of the cause of action, the claim would have been required to be filed within six years of defendants' malpractice. Harry executed the Living Trust and the will on December 15, 2011, and Michael filed his complaint on May 1, 2017, which was within the six-year repose period. However, as we determined above, the section 13-214.3(d) exception to the statute of repose applies. Where subsection (d) applies, it forecloses the application of subsection (c). DeLuna , 223 Ill. 2d at 74, 306 Ill.Dec. 136, 857 N.E.2d 229 (subsection (d) contains an exception to subsections (b) and (c) ). In Wackrow , the supreme court determined that the subsection (d) exception "is not in addition to the two-year statute of limitations and the six-year statute of repose," but, rather, "applies instead of the two-year statute of limitations and the six-year statute of repose." (Emphases in original.) Wackrow , 231 Ill. 2d at 427, 326 Ill.Dec. 56, 899 N.E.2d 273.

¶ 37 Michael's final argument is that his complaint was timely under section 13-214.3(e), the disability provision. That section provides: "If the person entitled to bring the action is under the age of majority or under other legal disability at the time the cause of action accrues, the period of limitations shall not begin to run until majority is attained or the disability is removed." (Emphasis added.) 735 ILCS 5/13-214.3(e) (West 2016). Michael argues that Patricia is the person entitled to bring the action and was, and still is, disabled. He notes that he alleged in his complaint that Patricia was disabled when defendants prepared the estate plan and that she is the injured party and, thus, the person entitled to bring the action. He further alleged that defendants were negligent in preparing the estate plan, which resulted in the imposition of a penalty on Patricia. Due to her disability, Michael argues, she is not able to bring the case on her own behalf, and she is entitled to avail herself of the tolling provision in section 13-214.3(e).

¶ 38 We disagree. The plaintiff in this case is Michael as trustee of the Supplemental Trust, not on Patricia's (individual) behalf. He is the only person who can bring an action on the trust's behalf, and he is not disabled. The power to bring an action on the trust's behalf is explicitly granted to him in the Living Trust, which states that the trustee has the power "[t]o litigate, compromise, settle, or abandon any claim or demand in favor of or against the trust[.]" Further, under the law, "[a] written trust possesses a distinct legal existence that is recognized by statute ( 760 ILCS 5/4 et seq. (West 2000) ) and can sue or be sued through its trustee in a representative capacity on behalf of the trust." Sullivan v. Kodsi , 359 Ill. App. 3d 1005, 1010, 296 Ill.Dec. 710, 836 N.E.2d 125 (2005). Accordingly, Michael's argument fails.

¶ 39 III. CONCLUSION

¶ 40 For the reasons stated, the judgment of the circuit court of Lake County is affirmed.

¶ 41 Affirmed.

Presiding Justice Hudson and Justice Schostok concurred in the judgment and opinion.

      The document is not contained in the record on appeal.

      This document is also not contained in the record on appeal.

      The record on appeal does not contain a transcript of the hearing or a bystander's report.


source: Caselaw Access Project

license: Public Domain

text:
    Kimberly ACCETTURA and Adam Wozniak, Plaintiffs-Appellants, v. VACATIONLAND, INC., Defendant-Appellee.
    No. 2-17-0972
    Appellate Court of Illinois, Second District.
    Opinion filed September 28, 2018 Rehearing denied November 27, 2018
    Dmitry N. Feofanov, of ChicagoLemonLaw.com, P.C., of Lyndon, for appellants.
    Lauryn E. Parks, Jennifer L. Friedland, and Daniel S. Porter, of Momkus McCluskey Roberts LLC, of Lisle, for appellee.
   JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 This case involves an allegedly defective recreational vehicle (RV) purchased by plaintiffs, Kimberly Accettura and Adam Wozniak, from defendant, Vacationland, Inc. Plaintiffs' complaint alleged revocation of acceptance and breach of implied warrant of merchantability and sought to recover the purchase price. The trial court granted summary judgment in favor of defendant. Plaintiffs argue that the trial court erred because (1) whether defendant had a reasonable opportunity to cure is a disputed issue of material fact, (2) the standards of the New Vehicle Buyer Protection Act (Act) ( 815 ILCS 380/1 et seq. (West 2016) ) do not define "reasonableness" for claims that do not involve the Act, (3) defendant failed to establish its satisfaction of section 2-508(2) of the Uniform Commercial Code (UCC) ( 810 ILCS 5/2-508(2) (West 2016) ), (4) an opportunity to cure is not a prerequisite for a claim under section 2-608(1)(b) of the UCC ( 810 ILCS 5/2-608(1)(b) (West 2016) ), and (5) the trial court relied on section 2-1203 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1203 (West 2016) ) in striking their cross-motion to reconsider. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On April 19, 2014, plaintiffs bought the RV, a new 2014 Palomino trailer, from defendant for $26,000.25. On April 25, 2014, plaintiffs took possession of the RV. In June 2014, plaintiffs discovered water leaking into the RV from the emergency-exit window. Plaintiffs brought the RV to defendant for repair; defendant repaired the RV to plaintiffs' satisfaction, at no charge.

¶ 4 In July 2014, during a trip to Michigan, plaintiffs discovered a different leak in the RV. During a rainstorm, water leaked into the dinette area, damaging the walls and causing electrical failure. Plaintiffs brought the RV to defendant for repair on July 14, 2014. Defendant told plaintiffs that the RV needed to be sent to the manufacturer for repair. Defendant told Wozniak that it could not estimate how long the manufacturer would take to repair the RV. On August 2, 2014, Wozniak verbally revoked acceptance of the RV. The manufacturer had the RV in repair from approximately August 4 through September 23, 2014. On September 28, 2014, plaintiffs' attorney sent defendant a letter revoking acceptance of the RV.

¶ 5 A. Complaint

¶ 6 On October 29, 2014, plaintiffs filed a four-count complaint against defendant, alleging the following. Since they purchased the RV, it had experienced numerous mechanical problems, including (a) water leakage through a defective emergency-exit window, (b) water leakage through a defective dinette window, (c) water leakage into a paneled wall, (d) an inoperative electrical system, (e) and "generally massive water leaks," which "have the potential of causing mold and serious health issues." Further, these "defects cannot be repaired. The [RV] was in repair for almost the entire summer of 2014, and still has not been repaired properly. *** Prior to filing this suit, Plaintiff's [sic ] revoked their acceptance of the RV and canceled their contract. *** Defendant refused to return Plaintiffs' money."

¶ 7 Plaintiffs sought damages under the following theories: revocation of acceptance, pursuant to section 2310(d) of the Magnuson-Moss Warranty Act (Magnuson-Moss Act) ( 15 U.S.C. § 2310(d) (2012) ), breach of implied warranty of merchantability, pursuant to section 2310(d) of the Magnuson-Moss Act; and revocation of acceptance and cancellation of contract, under sections 2-608(1)(b) and 2-711(1) of the UCC ( 810 ILCS 5/2-608(1)(b), 2-711(1) (West 2016) ). They also sought to recover the purchase price, under section 2-711(1) of the UCC. Plaintiffs attached the following documents to their complaint: (1) the first page of the parties' contract for the sale of the RV, (2) an alleged expert's report regarding water leakage and mold, (3) the letter to defendant purporting to confirm the revocation of acceptance, and (4) rental rates for a 23-foot trailer.

¶ 8 B. Motion for Summary Judgment

¶ 9 On November 14, 2016, defendant filed a motion for summary judgment pursuant to section 2-1005 of the Code ( 735 ILCS 5/2-1005 (West 2016) ). Defendant argued that plaintiffs' failure to give defendant a reasonable opportunity to cure was fatal to their claims, as a matter of law. Plaintiffs responded that there was a genuine issue of material fact regarding whether the RV was repaired within a reasonable time. Defendant replied that plaintiffs failed to rebut material facts set forth in defendant's motion.

¶ 10 On February 10, 2017, the trial court granted defendant summary judgment on all four counts of plaintiffs' complaint. The trial court stated that reasonableness is a question of fact but that, in this case, the record clearly showed that plaintiffs revoked acceptance sometime before August 2, 2014, which did not provide a reasonable time for defendant to cure.

¶ 11 C. Postjudgment Motions

¶ 12 On February 27, 2017, plaintiffs filed a motion to reconsider. On July 5, 2017, the trial court denied plaintiffs' motion in part on, counts I and II, and granted it in part, reinstating counts III and IV, brought under sections 2-608(b)(1) and 2-711(1) of the UCC. The court stated that, "while the [UCC] anticipated that the seller would be provided with a 'reasonable opportunity to cure,' the Court did not consider the substantial impairment standard."

¶ 13 On August 1, 2017, defendant filed a motion to reconsider. On September 6, 2017, plaintiffs filed a combined response to defendant's motion and cross-motion to reconsider. On November 27, 2017, the trial court granted defendant's motion and struck plaintiffs' cross-motion. The trial court determined that "a reasonable opportunity to cure is a threshold requirement for all attempts to revoke." The trial court stated, again, that plaintiffs "failed to provide a reasonable opportunity to cure." The trial court also stated: "Accordingly, as this court found originally in its February 10, 2017[,] Order, summary judgment was and is appropriate as to all counts."

¶ 14 Plaintiffs filed their notice of appeal on November 27, 2017.

¶ 15 II. ANALYSIS

¶ 16 A. Standard of Review

¶ 17 Our review of the trial court's grant of summary judgment is de novo . Home Insurance Co. v. Cincinnati Insurance Co. , 213 Ill. 2d 307, 315, 290 Ill.Dec. 218, 821 N.E.2d 269 (2004). "Summary judgment is proper where, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. ; see 735 ILCS 5/2-1005(c) (West 2016). A genuine issue of material fact exists when the material facts are disputed or when the material facts are undisputed but reasonable persons might draw different inferences from those undisputed facts. Carney v. Union Pacific R.R. Co. , 2016 IL 118984, ¶ 25, 412 Ill.Dec. 833, 77 N.E.3d 1. "Although summary judgment can aid in the expeditious disposition of a lawsuit, it remains a drastic means of disposing of litigation and, therefore, should be allowed only where the right of the moving party is clear and free from doubt." Williams v. Manchester , 228 Ill. 2d 404, 417, 320 Ill.Dec. 784, 888 N.E.2d 1 (2008).

¶ 18 The movant bears the initial burden of production on a motion for summary judgment. Williams v. Covenant Medical Center , 316 Ill. App. 3d 682, 689, 250 Ill.Dec. 40, 737 N.E.2d 662 (2000). A defendant moving for summary judgment can meet its burden of production either by presenting evidence that, left unrebutted, would entitle it to judgment as a matter of law or by demonstrating that the plaintiff will be unable to prove an element of its cause of action. Id. at 688, 250 Ill.Dec. 40, 737 N.E.2d 662. Until the defendant supplies facts that would demonstrate its entitlement to judgment as a matter of law, the plaintiff may rely on the pleadings to create questions of material fact. Id. at 689, 250 Ill.Dec. 40, 737 N.E.2d 662. However, if the defendant presents such facts, the burden then shifts to the plaintiff to present some evidence supporting each element of his cause of action, thereby defining an issue of material fact to be determined at trial. Id.

¶ 19 B. Reasonable Opportunity to Cure

¶ 20 Plaintiffs argue that whether defendant had a reasonable opportunity to cure is a disputed issue of material fact. Defendant contends that the trial court correctly determined that plaintiffs did not provide defendant with a reasonable opportunity to cure, as a matter of law.

¶ 21 Plaintiffs fail to inform us which counts of their complaint this argument addresses. Counts I and II alleged revocation of acceptance and breach of implied warranty of merchantability, pursuant to section 2310(d)(1) of the Magnuson-Moss Act. Section 2310(d)(1) allows a consumer to bring suit where he is "damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this [Act] or under a written warranty, implied warranty, or service contract." 15 U.S.C. § 2310(d)(1) (2012). However, "[n]o action *** may be brought under subsection (d) *** under any written or implied warranty or service contract *** unless the [warrantor] *** is afforded a reasonable opportunity to cure such failure to comply." Id. § 2310(e). The Magnuson-Moss Act does not define "reasonable opportunity to cure." Rather, it merely prescribes certain requirements with which a plaintiff must comply in order to recover under section 2310(d).

¶ 22 Accordingly, to determine the meaning of "reasonable opportunity to cure," we look to state law. See Razor v. Hyundai Motor America , 222 Ill. 2d 75, 86, 305 Ill.Dec. 15, 854 N.E.2d 607 (2006). The UCC does not define these terms. However, section 3(b) of the Act provides guidance:

"A presumption that a reasonable number of attempts have been undertaken to conform a new vehicle to its express warranties shall arise where, within the statutory warranty period,
(1) the same nonconformity has been subject to repair by the seller, its agents or authorized dealers during the statutory warranty period, 4 or more times, and such nonconformity continues to exist; or
(2) the vehicle has been out of service by reason of repair of nonconformities for a total of 30 or more business days during the statutory warranty period." 815 ILCS 380/3(b) (West 2016).

¶ 23 Typically, reasonableness is a question of fact. See Basselen v. GMC , 341 Ill. App. 3d 278, 283-84, 275 Ill.Dec. 267, 792 N.E.2d 498 (2003) (citing Magnum Press Automation, Inc. v. Thomas & Betts Corp. , 325 Ill. App. 3d 613, 622, 259 Ill.Dec. 384, 758 N.E.2d 507 (2001) ), overruled on other grounds by Kinkel v. Cingular Wireless, LLC , 223 Ill. 2d 1, 306 Ill.Dec. 157, 857 N.E.2d 250 (2006). When more than one inference could be drawn from undisputed facts, a triable issue exists and summary judgment may not be granted. Gordon v. Oak Park School District No. 97 , 24 Ill. App. 3d 131, 134, 320 N.E.2d 389 (1974). However, where, as here, undisputed facts give rise to a single inference, summary judgment should be granted. See id. at 135, 320 N.E.2d 389.

¶ 24 Here, on defendant's motion for summary judgment, plaintiffs were obligated to establish facts that would satisfy their burden of showing that they provided defendant with a reasonable opportunity to cure. The undisputed facts establish that plaintiffs brought the RV to defendant in June 2014 because water leaked into the RV from the emergency-exit window. Defendant repaired this problem to plaintiffs' satisfaction. In early July 2014, a separate and distinct problem arose in the RV during a rainstorm; significant water leaked into the dinette area, causing electrical-system and other problems. Plaintiffs brought the RV to defendant for repair on July 14, 2014, and revoked acceptance, "sometime before August 2, 2014."

¶ 25 Although a plaintiff need not prove his case at the summary judgment stage, he must present a factual basis that would arguably entitle him to a judgment at trial. Bruns v. City of Centralia , 2014 IL 116998, ¶ 12, 386 Ill.Dec. 765, 21 N.E.3d 684. Mere speculation, conjecture, or guess is insufficient to survive summary judgment. O'Gorman v. F.H. Paschen , S.N. Nielsen, Inc. , 2015 IL App (1st) 133472, ¶ 82, 390 Ill.Dec. 880, 29 N.E.3d 1150.

¶ 26 Here, plaintiffs have failed to point to any authority or facts to support their assertion that their revocation of acceptance, approximately two weeks after asking defendant to repair the RV, was reasonable. Rather, the undisputed facts give rise to only one inference: plaintiffs failed to provide defendant a reasonable opportunity to cure. There is no genuine issue of material fact on this question. Accordingly, the trial court properly entered summary judgment in defendant's favor on counts I and II.

¶ 27 C. The Act

¶ 28 Plaintiffs argue that the Act's standards do not define "reasonableness" for claims that do not involve the Act. Plaintiffs contend that the trial court erred by using the Act's language to determine the meaning of "reasonableness." We disagree with plaintiffs.

¶ 29 When interpreting a statute, it is appropriate and common for courts to refer to another statute by analogy. McNamee v. Federated Equipment & Supply Co. , 181 Ill. 2d 415, 424, 229 Ill.Dec. 946, 692 N.E.2d 1157 (1998). The Act is related to the section of the Magnuson-Moss Act at issue here, because both apply to "similar persons, things, or relationships." Id. at 424, 229 Ill.Dec. 946, 692 N.E.2d 1157 (quoting 2B Norman J. Singer, Sutherland on Statutory Construction § 53.03, at 233 (5th ed. 1992) ). For example, both acts address buyers and sellers of new motor vehicles and the remedies available to buyers when vehicles fail to conform. See, e.g. , 815 ILCS 380/3(b) (West 2016). Thus, the trial court's reference to section 3(b) of the Act, by analogy, was appropriate.

¶ 30 D. Section 2-508(2) of the UCC

¶ 31 Plaintiffs argue that the trial court erred by entering summary judgment on counts I and II, because defendant failed to establish its satisfaction of section 2-508(2) of the UCC ( 810 ILCS 5/2-508(2) (West 2016) ).

¶ 32 Defendant argues that plaintiffs forfeited this issue because they failed to raise it until their second motion to reconsider. However, the record indicates that plaintiffs raised this issue in their initial motion to reconsider and that the trial court considered it. Therefore, plaintiffs' argument is not forfeited.

¶ 33 We begin with the language of section 2-508, which provides:

"Cure by Seller of Improper Tender or Delivery; Replacement . (1) Where any tender or delivery by the seller is rejected because non-conforming and the time for performance has not yet expired , the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery.
(2) Where the buyer rejects a non-conforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender ." (Emphases added.) Id. § 2-508.

¶ 34 Plaintiffs argue that defendant was required to cure by replacing the nonconforming RV with a new RV, pursuant to section 2-508(2) of the UCC. Plaintiffs cite Belfour v. Schaumburg Auto , 306 Ill. App. 3d 234, 239 Ill.Dec. 383, 713 N.E.2d 1233 (1999), to support their argument. However, in Belfour the defendants were not able to repair the vehicle, as it "was a total loss." Id. at 236, 239 Ill.Dec. 383, 713 N.E.2d 1233. In this case, the RV was not a "total loss"; in fact, it had already been repaired before plaintiffs' attorney sent the letter confirming revocation and before plaintiffs filed suit. Therefore, Belfour does not support plaintiffs' argument.

¶ 35 E. Opportunity to Cure Under UCC Section 2-608(1)(b)

¶ 36 Next, plaintiffs argue that the trial court erred by entering summary judgment in defendant's favor on counts I and III of their complaint because the trial court improperly determined that an opportunity to cure is a prerequisite for a claim under section 2-608(1)(b) of the UCC. Defendant argues that plaintiffs have forfeited this issue because they failed to raise it in the trial court. However, the record indicates that plaintiffs raised this issue in their initial motion to reconsider, but only as to count III. Because plaintiffs raise this issue as to count I for the first time on appeal, the issue is forfeited as to that count. Hytel Group, Inc. v. Butler , 405 Ill. App. 3d 113, 127, 345 Ill.Dec. 103, 938 N.E.2d 542 (2010) (arguments raised for the first time on appeal are forfeited). Thus, we consider plaintiffs' argument only as to count III.

¶ 37 Count III hinges on whether the trial court erred in finding that plaintiffs were required to provide defendant with an opportunity to cure prior to revoking acceptance. Section 2-608 of the UCC provides:

§ 2-608. Revocation of Acceptance in Whole or in Part.
"(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it
(a) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or
(b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them." 810 ILCS 5/2-608 (West 2016).

¶ 38 Plaintiff contends that, although section 2-608(1)(a) requires an opportunity to cure, section 2-608(1)(b) does not. Plaintiff correctly notes that this is an issue of first impression.

¶ 39 When interpreting a statute, our primary objective is to ascertain and give effect to the legislature's intent. Valfer v. Evanston Northwestern Healthcare , 2016 IL 119220, ¶ 22, 402 Ill.Dec. 398, 52 N.E.3d 319. The best indication of the legislature's intent is the language used in the statute, which must be given its plain and ordinary meaning. Id.

¶ 40 Section 2-608(1)(b) does not specify whether the seller has a right to cure prior to a proper revocation of acceptance. However, in Belfour , 306 Ill. App. 3d at 241, 239 Ill.Dec. 383, 713 N.E.2d 1233, this court rejected the argument that the seller did not have a right to cure before the buyer revoked acceptance under section 2-608. Id. We stated that, "[u]nder the UCC, the buyer must allow the seller time to cure before invoking revocation of acceptance." Id. (citing Collum v. Fred Tuch Buick , 6 Ill. App. 3d 317, 285 N.E.2d 532 (1972) ). We explained, "courts will resort to revocation of acceptance only after attempts at adjustment have failed." Id. at 242, 239 Ill.Dec. 383, 713 N.E.2d 1233 (citing 810 ILCS Ann. 5/2-608(1)(a), Uniform Commercial Code Comment, at 380 (Smith-Hurd 1993) ). We concluded that the buyer's revocation of acceptance was improper because the seller had offered a proper cure. Id. In addition, our supreme court has stated that "[r]evocation of acceptance is a form of equitable relief." Mydlach v. DaimlerChrysler Corp. , 226 Ill. 2d 307, 327, 314 Ill.Dec. 760, 875 N.E.2d 1047 (2007).

¶ 41 In this case, the record clearly establishes that on July 14, 2014, plaintiffs asked defendant to cure the defects discovered during their trip to Michigan and defendant offered plaintiffs a proper cure. Plaintiffs revoked acceptance about two weeks later, knowing that the RV was going to the manufacturer to be repaired under the warranty. Thus, the material facts are undisputed and all reasonable minds would agree that plaintiffs failed to allow defendant a reasonable time to cure before their purported revocation, as a matter of law. See Carney , 2016 IL 118984, ¶ 25, 412 Ill.Dec. 833, 77 N.E.3d 1. Accordingly, the trial court properly determined that plaintiffs' revocation was improper under section 2-608(1)(b) of the UCC. Accordingly, the trial court properly granted summary judgment in defendant's favor as to count III.

¶ 42 F. Plaintiffs' Cross-Motion to Reconsider

¶ 43 Plaintiffs argue that the trial court erred by relying on section 2-1203 of the Code (735 ILCS 2-1203 (West 2016) ) in striking their cross-motion to reconsider. We note that we may affirm on any basis appearing in the record, whether or not the trial court relied on that basis and even if the trial court's reasoning was incorrect. Bank of New York v. Langman , 2013 IL App (2d) 120609, ¶ 31, 369 Ill.Dec. 436, 986 N.E.2d 749.

¶ 44 Here, plaintiffs filed a combined "Response to Defendant's Motion to Reconsider and Cross-Motion (Second) to Reconsider." The trial court stated in its written order that it "considered the pleadings and arguments of counsel." Plaintiffs have failed to provide this court with a transcript of the hearing. Plaintiffs, as the appellants, had the burden to present a sufficiently complete record of the proceedings to support their claim of error. See Foutch v. O'Bryant , 99 Ill. 2d 389, 391, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984). As such, we presume that "the order entered by the trial court was in conformity with [the] law and had a sufficient factual basis" Id. at 391-92, 76 Ill.Dec. 823, 459 N.E.2d 958.

¶ 45 III. CONCLUSION

¶ 46 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 47 Affirmed.

Justices Birkett and Spence concurred in the judgment and opinion.


text:
    IN RE ESTATE OF Alice LEWY, Deceased
    (Lisa Dudley, Claimant-Appellant, v. FNBC Bank and Trust, as Independent Administrator of the Estate of Alice Lewy, Deceased, Respondent-Appellee).
    No. 1-17-2552
    Appellate Court of Illinois, First District, FOURTH DIVISION.
    September 28, 2018
    Christopher Berghoff, of Berghoff & Berghoff, Ltd., and Nicholas P. Hoeft, of Jostock & Jostock, P.C., both of Chicago, for appellant.
    Eric Dorkin, MacKenzie A. Hyde, Angelo DiBartolomeo, and Ashley Coppola, of Clark Hill PLC, of Chicago, for appellee.
   PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion.

¶ 1 Is a person who has been convicted of misdemeanor battery of an 88-year-old disabled woman prevented by the Elder Abuse and Neglect Act ( 755 ILCS 5/2-6.2(b) (West 2014) ) (Act) from subsequently seeking quantum meruit compensation from the woman's estate for caretaking services? The trial court ruled that the statute barred Lisa Dudley's claim for compensation from the estate of Alice Lewy, because Dudley-who had been charged with committing felony criminal neglect of an elderly person, felony aggravated domestic battery, felony assault with battery of a senior citizen, and misdemeanor battery against Lewy in her home-entered into a guilty plea agreement as to the misdemeanor battery charge. See 720 ILCS 5/12-3(a)(1) (West 2014) (battery). On appeal, Dudley contends the trial court erred when the phrase "by reason of the death" limits the scope of the statute to claims that arise by reason of the abused person's death, e.g. , the claims of heirs and surviving joint tenants, but that Dudley's quantum meruit claim was not triggered by Lewy's death and could have been filed during Lewy's lifetime. 755 ILCS 5/2-6.2(b) (West 2014). We need not resolve the merits of Dudley's argument, however. Although misdemeanor battery of an elderly or disabled person is egregious, it is not an offense that falls within the scope of the current Act. 755 ILCS 5/2-6.2(b) (West 2014). Consequently, it was error to dismiss Dudley's compensation claim on the basis of the statute.

¶ 2 We have jurisdiction pursuant to Illinois Supreme Court Rule 304(b)(1), Ill. S. Ct. 304(b)(1) (eff. Mar. 8, 2016). The trial court entered a final and appealable order on June 6, 2017 by dismissing Dudley's claim with prejudice; the trial court denied Dudley's motion to reconsider on September 14, 2017, and Dudley filed her notice of appeal within 30 days on October 12, 2017.

¶ 3 According to Dudley, she became friends with Lewy and Lewy's husband after meeting them in a McDonald's restaurant in Skokie in 1991 when Dudley was in her early 30's and Lewy was in her mid 60's. In her claim against Lewy's estate, Dudley alleged that in 2009, around the time that Lewy's husband died, Dudley became Lewy's caretaker, housekeeper, cleaner, driver, and personal assistant. Dudley alleged that she helped Lewy on a full-time basis for the next seven years because Lewy asked for her assistance and that although Lewy paid her "infrequently" and "little" at the time, Lewy promised to bequeath "handsome[ ] compensation" and "substantial sums."

¶ 4 The physical altercation at issue occurred in Lewy's home at 4840 Foster Street, #1, Skokie, Illinois, 60077 on November 22, 2015. The record includes a partial transcript of a preliminary hearing conducted on December 15, 2015, during which Lewy was called as one of the witnesses for the prosecution, demonstrated memory loss and confusion, and had no recollection of the altercation. After other witnesses testified, Dudley pled guilty and was convicted of misdemeanor battery in violation of 720 ILCS 5/12-3(a)(1) (West 2014). The criminal division judge sentenced Dudley to a term of two years' conditional discharge, ordered her to avoid unlawful conduct with Lewy, and prohibited Dudley from providing caregiving services.

¶ 5 The record also includes a probate division order entered in April 2016, appointing the Cook County Public Guardian as the temporary guardian of Lewy's person and estate. The probate court judge found the guardianship was necessary for the immediate welfare and protection of her person and assets. Specifically, Lewy had been diagnosed with mild to moderate dementia and stomach cancer and had been physically abused by Dudley. Also, although Dudley had been ordered not to provide caregiving services, she was observed in Lewy's home during a subsequent visit by the Public Guardian's office and was known to have transported Lewy to visit attorneys. In addition, a friend who had Lewy's health care power of attorney had resigned "due to the difficulty with caregiver Dudley." The order also indicates Lewy's last surviving sibling, Richard Huspek, was residing with Lewy, that Lewy was responsible for his healthcare and coordination of his caregivers and daily insulin injections, that Lewy's physician opined Lewy was not capable of continuing to act in a decision-making capacity for her brother, and that the Public Guardian's office was also petitioning for Huspek's guardianship.

¶ 6 Within less than a year of the guardianship order, Lewy died intestate on January 20, 2017, leaving her brother as the sole heir of her $1.2 million estate.

¶ 7 Dudley filed claims of fraudulent inducement and breach of contract to make a will favoring her. She also sought $1.226 million from the estate in quantum meruit compensation for caregiving services she rendered at the rate of $40 per hour for 12 hours every day between 2009 and 2015.

¶ 8 FNBC Bank and Trust, as Independent Administrator of Lewy's estate, filed a combined motion to dismiss with prejudice pursuant to section 2-619.1 of the Code of Civil Procedure, arguing in part that in light of subsection (b) of the Act, Dudley's criminal conviction affirmatively barred her claim against the estate. The Act states in relevant part:

"Financial exploitation, abuse, or neglect of an elderly person or a person with a disability.
(a) In this Section:
"Abuse" means any offense described in Section 12-21 or subsection (b) of Section 12-4.4a of the Criminal Code of 1961 or the Criminal Code of 2012.
"Financial exploitation" means any offense or act described or defined in Section 16-1.3 or 17-56 of the Criminal Code of 1961 or the Criminal Code of 2012, and, in the context of civil proceedings, the taking, use, or other misappropriation of the assets or resources of an elderly person or a person with a disability contrary to law, including, but not limited to, misappropriation of assets or resources by undue influence, breach of a fiduciary relationship, fraud, deception, extortion, and conversion.
"Neglect" means any offense described in Section 12-19 or subsection (a) of Section 12-4.4a of the Criminal Code of 1961 or the Criminal Code of 2012.
(b) Persons convicted of financial exploitation, abuse, or neglect of an elderly person or a person with a disability or persons who have been found by a preponderance of the evidence to be civilly liable for financial exploitation shall not receive any property, benefit, or other interest by reason of the death of that elderly person or person with a disability, whether as heir, legatee, beneficiary, survivor, appointee, claimant under Section 18-1.1, or in any other capacity and whether the property, benefit, or other interest passes pursuant to any form of title registration, testamentary or nontestamentary instrument, intestacy, renunciation, or any other circumstance." 755 ILCS 5/2-6.2(b) (West 2014).

¶ 9 Dudley filed a response and an amended response to the administrator's dismissal motion, in which she argued she should be considered innocent, notwithstanding her conviction. Dudley attributed the criminal charges to unintentional injuries and law enforcement's erroneous assumptions about what had occurred. As to the conviction, Dudley said she "[r]eluctantly * * * agreed to the plea deal based upon her attorney's counsel that doing so would legally have no adverse effect on her relationship with [Lewy]." Dudley contended it would be inequitable for the court to deny her "rightful compensation."

¶ 10 After written and oral arguments, the probate court judge granted the administrator's motion to dismiss. Dudley then retained a different attorney, filed a motion to reconsider in which she introduced the statutory argument she now makes on appeal, and proposed that she amend her pleading to bring only the quantum meruit count. The judge denied the motion and in this ensuing appeal, Dudley has limited her arguments to her quantum meruit allegations. As indicated above, however, we find it unnecessary to reach her argument about the meaning of a certain phrase in the statute, because the statute concerns a felony form of abuse and does not apply to Dudley's misdemeanor conviction for battery of her elderly, disabled client.

¶ 11 Interpretation of a statute is a question of law that we address de novo . People ex rel. Schad, Diamond & Sheddon, P.C. v. My Pillow, Inc. , 2018 IL 122487, ¶ 18, --- Ill.Dec. ----, --- N.E.3d ----. It is a primary rule of statutory construction that the intention of the legislature should be ascertained and given effect. Founders Insurance Co. v. American Country Insurance Co. , 366 Ill. App. 3d 64, 69, 303 Ill.Dec. 222, 851 N.E.2d 120 (2006). All other rules of statutory construction are subordinate to this principle. Founders Insurance , 366 Ill. App. 3d at 69, 303 Ill.Dec. 222, 851 N.E.2d 120 ; Henrich v. Libertyville High School , 186 Ill. 2d 381, 387, 238 Ill.Dec. 576, 712 N.E.2d 298 (1998). When interpreting a statute, we look first to the terms of the statute and give the legislature's words their plain and ordinary meaning. Founders Insurance , 366 Ill. App. 3d at 69, 303 Ill.Dec. 222, 851 N.E.2d 120. It is never proper for a court to depart from plain statutory language by reading in conditions, exceptions, or limitations that conflict with the clearly expressed legislative intent. Bridgestone/Firestone, Inc. v. Aldridge , 179 Ill. 2d 141, 149, 227 Ill.Dec. 753, 688 N.E.2d 90 (1997). In addition, where a statute is derogation of the common law, it is to be strictly construed. My Pillow , 2018 IL 122487, ¶ 18, --- Ill.Dec. ----, --- N.E.3d ----. "Nothing is to be read into such statutes by intendment or implication. Even if a statute has remedial features, if it is in derogation of the common law, " ' "it will be strictly construed when determining what persons come within its operation." ' " My Pillow , 2018 IL 122487, ¶ 18, --- Ill.Dec. ----, --- N.E.3d ---- (quoting JPMorgan Chase Bank, N.A. v. Earth Foods, Inc. , 238 Ill. 2d 455, 463, 345 Ill.Dec. 644, 939 N.E.2d 487 (2010) (quoting In re W.W. , 97 Ill. 2d 53, 57, 73 Ill.Dec. 347, 454 N.E.2d 207 (1983) ) ). Further, we are to read a statute as a whole, rather than construing operative words or phrases in isolation. Land v. Board of Education of City of Chicago , 202 Ill. 2d 414, 422, 269 Ill.Dec. 452, 781 N.E.2d 249 (2002) ("[w]ords and phrases should not be construed in isolation, but interpreted in light of other relevant portions of the statute so that, if possible, no term is rendered superfluous or meaningless").

¶ 12 The record reveals that the dismissal of Dudley's suit was in error, because although she was abusive toward Lewy, Dewy's misconduct did not fit within the legislature's limited definition of "Abuse" for purposes of the Elder Abuse and Neglect Act. 755 ILCS 5/2-6.2 (West 2014). In subsection (a) of the Act, the legislature defined "Abuse" (and "Financial exploitation" and "Neglect") and in subsection (b) of the Act, the legislature extinguished certain common law rights to receive property, benefit, or other interests. 755 ILCS 5/2-6.2(a), (b) (West 2014). The legislature specified that " 'Abuse' means any offense described in Section 12-21 or subsection (b) of Section 12-4.4a of the Criminal Code of 1961 or the Criminal Code of 2012." 755 ILCS 5/2-6.2 (West 2014). Reading the plain language as written, the legislature intended to narrow the application of the Act to persons who have been convicted of a specific offense that is described and outlawed in one of the two specified criminal statutes. 755 ILCS 5/2-6.2 (West 2014).

¶ 13 The first statute, section 12-21, was repealed by Public Act 96-1551, § 10, effective July 1, 2011, so we have looked directly to the second statute, section 12-4.4a(b), which prohibits the "Specific Offense[ ]" of "(b) Criminal abuse or neglect of an elderly person or person with a disability." 720 ILCS 5/12-4.4a(b) (West 2014). In section 12-4.4a(b) of the Criminal Code of 2012, the legislature described that offense as follows:

"(1) A caregiver commits criminal abuse or neglect of an elderly person or person with a disability when he or she knowingly does any of the following:
(A) performs acts that cause the person's life to be endangered, health to be injured, or pre-existing physical or mental condition to deteriorate;
(B) fails to perform acts that he or she knows or reasonably should know are necessary to maintain or preserve the life or health of the person, and that failure causes the person's life to be endangered, health to be injured, or pre-existing physical or mental condition to deteriorate;
(C) abandons the person;
(D) physically abuses, harasses, intimidates, or interferes with the personal liberty of the person; or
(E) exposes the person to willful deprivation.
(2) It is not a defense to criminal abuse or neglect of an elderly person or person with a disability that the caregiver reasonably believed that the victim was not an elderly person or person with a disability." 720 ILCS 5/12-4.4a(b) (West 2014).

¶ 14 The legislature also provided that this specific type of abuse is a felony offense:

"(d) Sentence.
* * *
(2) Caregiver. Criminal abuse or neglect of an elderly person or person with a disability is a Class 3 felony, unless it results in the person's death in which case it is a Class 2 felony, and if imprisonment is imposed it shall be for a minimum term of 3 years and a maximum term of 14 years." 720 ILCS 5/12-4.4a(d) (West 2014).

¶ 15 The administrator of Lewy's estate has indicated Dudley was charged with four crimes: "felony criminal neglect of an elderly person," "felony aggravated domestic battery," "felony assault with battery of a senior citizen," and "misdemeanor battery." The administrator has not disclosed statutory citations of the three felony charges that were lodged against Dudley, but it appears that the first charge coincides with 720 ILCS 5/12-4.4a(b)(1) (West 2014). Nevertheless, it is undisputed that all three of the felony charges were dismissed due to a plea agreement. We know from Dudley's Sentencing Order entered on March 9, 2016 (an exhibit to the motion to dismiss Dudley's claim), that she was convicted of a single crime: a battery in violation of 720 ILCS 5/12-3(a)(1) (West 2014). In that statute, the legislature stated:

"(a) A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.
(b) Sentence.
Battery is a Class A misdemeanor." 720 ILCS 5/12-3 (West 2014).

¶ 16 We find no overlap in the language of the statute that prohibits "Criminal abuse or neglect of an elderly person or person with a disability" ( 720 ILCS 5/12-4.4a(b) (West 2014) ) and the language of the statute that prohibits "Battery" ( 720 ILCS 5/12-3 (West 2014) ). The Act expressly incorporated "any offense described in * * * subsection (b) of section 12-4.4a of * * * the Criminal Code of 2012, which is "Criminal abuse or neglect of an elderly person or person with a disability" not the offense described in section 12-3, which is "Battery." "Statutory language itself is the best indication of legislative intent." Burke v. 12 Rothschild's Liquor Mart, Inc. , 148 Ill. 2d 429, 442, 170 Ill.Dec. 633, 593 N.E.2d 522 (1992)"Where a statute lists the things to which it refers, there is an inference that all omissions should be understood as exclusions, despite the lack of any negative words of limitation." Burke, 148 Ill. 2d at 442, 170 Ill.Dec. 633, 593 N.E.2d 522 ; Bridgestone/Firestone, Inc. , 179 Ill. 2d at 149, 227 Ill.Dec. 753, 688 N.E.2d 90 (expressio unius est exclusio alterius means the explicit mention of one thing is the exclusion of something else). The legislation provides that the Act is triggered by a specific felony conviction or convictions for the mistreatment of an elderly person or person with a disability, not by a misdemeanor battery conviction, as the legislature did not include the offense of "Battery" in the statute.

¶ 17 Thus, while the trial judge's ruling reflects the spirit of the Elder Abuse and Neglect Act to address the appalling mistreatment of elderly or disabled individuals, the plain language of the Elder Abuse and Neglect Act did not encompass Dudley's conviction for misdemeanor battery of her elderly client. The statute is in derogation of Dudley's common law right to compensation from Lewy's estate and we must adhere to the principle that when a statute is penal in nature, it not to be extended by inference. Acme Fireworks Corp. v. Bibb , 6 Ill. 2d 112, 119, 126 N.E.2d 688 (1955) ; My Pillow, Inc. , 2018 IL 122487, ¶ 18, --- Ill.Dec. ----, --- N.E.3d ---- (statutes in derogation of the common law are to be strictly construed). Whether the statute should be broadened is a matter for the legislature. Because it is improper for a court to alter plain statutory language ( Bridgestone/Firestone, Inc. , 179 Ill. 2d at 149, 227 Ill.Dec. 753, 688 N.E.2d 90 ), we reverse the trial judge's decision to dismiss Dudley's quantum meruit claim against Lewy's estate on the basis of this statute, and we remand for further proceedings as to the claim.

¶ 18 Reversed and remanded.

Justice Burke concurred in the judgment and opinion.

Justice Gordon specially concurred, with opinion.

¶ 20 I agree with the majority that the Elder Abuse and Neglect Act does not bar plaintiff's claim seeking quantum meruit compensation from the estate of Alice Lewy, deceased. However, I must write separately as plaintiff may be barred from recovering under a quantum meruit claim under the doctrine of "unclean hands" because she acted in bad faith through her conduct towards the decedent in striking her. The doctrine of "unclean hands" precludes a party from taking advantage of its own wrong. Long v. Kemper Life Insurance Co., 196 Ill. App. 3d 216, 218, 142 Ill.Dec. 925, 553 N.E.2d 439 (1990). It is an equitable doctrine that bars relief when the party seeking that relief is guilty of misconduct in connection with the subject matter of the litigation. Thomson Learning, Inc. v. Olympia Properties, LLC , 365 Ill. App. 3d 621, 634, 302 Ill.Dec. 877, 850 N.E.2d 314 (2006). The doctrine only applies when the party's misconduct rises to a level of fraud or bad faith. Thomson , 365 Ill. App. 3d at 634, 302 Ill.Dec. 877, 850 N.E.2d 314. The court must look to the intent of a party to determine whether it acted with "unclean hands." Thomson , 365 Ill. App. 3d at 634, 302 Ill.Dec. 877, 850 N.E.2d 314. The doctrine is only available when the misconduct was "toward the party against whom relief is sought and * * * connected with the transaction at issue in the litigation." Zahl v. Krupa , 365 Ill. App. 3d 653, 658, 302 Ill.Dec. 867, 850 N.E.2d 304 (2006).

¶ 21 It would be up to the trial court to determine at trial whether plaintiff's conduct was of such a sufficiently serious nature so as to preclude the award of equitable relief. It would not be fair to award a caregiver money for taking care of an elderly person if that caregiver abused that elderly person. As a result, I would remand to the circuit court of Cook County with instructions to have a trial on the quantum meruit issue. Ellis v. Photo America Corp. , 113 Ill. App. 3d 493, 69 Ill.Dec. 417, 447 N.E.2d 852 (1983).

      According to the estate, Huspek died shortly after Lewy and Dudley filed claims against his estate of breach of contract to make a will and quantum meruit . However, the Public Guardian opposed the claims and the trial court dismissed them. There is no indication that Dudley appealed.

      According to the American Psychological Association, "[w]hen elder abuse happens, family, other household members, or paid caregivers are usually the abusers." American Psychological Association, Elder Abuse and Neglect, In Search of Solutions, http://www.apa.org/pi/aging/resources/guides/elder-abuse.aspx (last visited July 13, 2018). According to the National Clearinghouse on Abuse in Later Life, "Older victims may be abused by intimate partners, adult children, grandchildren, or other family members, caregivers or persons in authority." National Clearinghouse on Abuse in Later Life, An Overview of Abuse in Later Life, http://www.ncall.us//FileStream.aspx?FileID=23 (last visited July 13, 2018). In addition, "[a] 2010 study found that 45% of participants with dementia had been mistreated by their caregivers. Of them, 88.5% experienced psychological abuse, 19.7% experienced psychological abuse, and 29.5% experienced neglect." National Center on Elder Abuse, What We Do, https://ncea.acl.gov/whatwedo/research/statistics.html (last visited July 17, 2018).