text:
    Elizabeth ENGLE, Plaintiff-Appellant, v. The DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; the Real Estate Appraisal Administration and Disciplinary Board; Bryan Schneider, in His Official Capacity as Secretary of the Illinois Department of Financial and Professional Regulation; and Kreg Allison, in His Official Capacity as Acting Director of the Division of Real Estate of the Illinois Department of Financial and Professional Regulation, Defendants-Appellees.
    No. 1-16-2602
    Appellate Court of Illinois, First District, Fifth Division.
    Opinion filed March 23, 2018
    Richardson Maraj (John Richardson, of counsel), and Alan Rhine, both of Chicago, for appellant.
    Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Janon E. Fabiano, Assistant Attorney General, of counsel), for appellees.
   JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Elizabeth Engle filed a complaint for administrative review, which challenged the final administrative decision that revoked her real estate appraiser license after a default order for failure to file an answer was entered against her and the disciplinary board held its deliberations on the pleadings. The circuit court affirmed the final administrative decision against Engle.

¶ 2 On appeal, Engle argues that this court should reverse the administrative decision because she did not forfeit her right to a hearing and the agency violated her due process rights when it failed to consider and grant her timely motion to vacate the default order and denied her request to conduct a hearing on the merits. In the alternative, Engle argues that the revocation of her license based on the default order was improper without some type of prove-up proceeding and was an overly harsh penalty.

¶ 3 Based on the following, we reverse the circuit court's judgment that affirmed the final administrative decision revoking Engle's license. We remand this cause to the agency for further proceedings consistent with this opinion.

¶ 4 I. BACKGROUND

¶ 5 In 2013, Engle submitted an application to defendant, the Department of Financial and Professional Regulation (Department), for a certified residential real estate appraiser license. The Department, however, notified her about alleged discrepancies in her 2013 application. Engle, with the assistance of an attorney, engaged in meetings and conversations with Department employees and thereafter withdrew her 2013 application.

¶ 6 On September 11, 2014, Engle submitted another application and subsequently received her certified residential real estate appraiser license. However, on June 29, 2015, the Department filed a complaint containing 127 counts against her, alleging that she failed to sufficiently explain additional hours listed in her application, in violation of section 15-10(a)(2) of the Real Estate Appraiser Licensing Act of 2002 (Act) ( 225 ILCS 458/15-10(a)(2) (West 2014) ) and her application included false information, in violation of sections 15-10(a)(1), (5), (10), and (26) of the Act (Id. § 15-10(a)(1), (5), (10), (26) ).

¶ 7 Specifically, count I of the complaint alleged that Engle's 2014 application included work log forms that requested credit for 779 additional experience hours earned between August 1, 2014, and September 10, 2014, but failed to provide a sufficient explanation for the additional requested hours. Furthermore, counts II through CXXVII alleged that Engle's 2014 application included false information because the certified number of hours worked for 126 appraisals differed from the certified number of hours worked for those same appraisals as listed in her prior 2013 application. Based on the allegations of the complaint, the Department requested that Engle's license be suspended or revoked or that she be otherwise disciplined. The Department notified Engle that she was required to file an answer within 20 days, the failure to file an answer or otherwise plead "may result in a default being taken against [her]," and her attendance at a July 28, 2015, preliminary hearing was mandatory.

¶ 8 On July 17, 2015, Engle's counsel, Augustine, Kern and Levens, Ltd. (AKL), filed a motion for extension of time, incorrectly referencing an August 4, 2015, preliminary hearing and explaining that Jeffrey Levens, the AKL partner who had been handling Engle's case, died unexpectedly on July 6, 2015. On July 21, 2015, AKL partner Algis Augustine and junior associate James Ko filed appearances on behalf of Engle.

¶ 9 On July 28, 2015, neither Engle nor her counsel appeared at the preliminary hearing. The administrative law judge (ALJ) ordered Engle to answer or otherwise plead by September 8, 2015, or be held in default. The ALJ set the matter for a status hearing on September 29, 2015. The order warned that the "[f]ailure to attend or to file an answer shall result in the transferring of the matter to the Board on the pleadings, and the entry of a finding in favor of the Department on all allegations." According to documents in the record subsequently filed by Engle's counsel, they did not appear at the July 28 preliminary hearing because they requested but did not receive from the Department copies of all the pleadings and notices.

¶ 10 On September 8, 2015, Engle's counsel AKL filed a motion to dismiss the complaint. One of the attorneys who signed the motion was John Richardson, who was a partner of Richardson Maraj, LLC. (As explained in documents subsequently filed on Engle's behalf, Richardson shared office space at AKL and helped after the death of Levens by working as "of counsel" on Engle's case and many other AKL cases.) The motion argued that the complaint failed to allege any facts to support an inference that Engle acted knowingly and intentionally to deceive anyone. The motion explained that Engle withdrew her 2013 application because Department employees informed her that she (1) could not receive credit for 855 hours of appraisals where her supervisor did not sign those work logs before his death and (2) must report in her subsequent application the actual number of hours worked despite, according to Engle, contrary or confusing instructions on the Department's forms, which indicated that applicants must cap their appraisal work hours at a maximum of either 10 or 15 hours. Accordingly, Engle had underreported her number of hours worked in her prior 2013 application, and the certified number of hours worked in her 2014 application was correct and complied with the instructions of the Department's employees. Several exhibits were attached to the motion, including correspondence between the Department and Engle or her attorneys, the minutes of a Department meeting, portions of Engle's 2013 application, and her transcript and course completion certificates. The Department responded to the motion on September 15, and AKL filed a reply on September 29.

¶ 11 On September 29, 2015, AKL filed a motion to disqualify the Department's counsel, alleging that he was a necessary witness in this case. The ALJ set a schedule for the parties to file replies to the motion and continued the matter to December 1, 2015.

¶ 12 On October 14, 2015, the ALJ issued a written order denying Engle's motion to dismiss the complaint. The ALJ rejected Engle's argument that the complaint failed to allege sufficient facts to form a basis for discipline. The ALJ also ordered Engle to file her answer by November 2, 2015, and set the matter for a status hearing on December 1, 2015. The October 14 order, unlike previously served documents, was addressed to Engle's attorney Ko instead of the firm AKL.

¶ 13 In early October 2015 (according to documents ultimately filed on Engle's behalf), firm partner Augustine informed attorneys Richardson and Ko that he would retire and close the AKL firm at the end of the month. Richardson decided to purchase AKL's pending practice. He moved to a new office space and hired new employees. During this time, Richardson and Ko tried to make the transition as smooth as possible and "get up to speed" with all the cases.

¶ 14 On November 10, 2015, Richardson and Ko, now of Richardson Maraj, LLC, filed appearances on behalf of Engle. They did not file an answer or request an extension of time to answer.

¶ 15 On November 19, 2015, the ALJ denied, without prejudice, Engle's motion to disqualify opposing counsel.

¶ 16 On December 1, 2015, the ALJ issued an order holding Engle in default for failure to file an answer and transferred the matter to defendant, the Department's Real Estate Appraisal Administration and Disciplinary Board (Board), for its deliberations on the pleadings. The ALJ continued the matter for status to January 12, 2016.

¶ 17 On January 11, 2016, Engle's counsel filed a 118-page answer to the complaint and a motion to vacate the default. The motion petitioned the Department and the "Director of the Division of Real Estate" to vacate the default order. Counsel explained that AKL, Engle's previous counsel, had closed after the retirement of partner Augustine on October 30, 2015, which followed the death in July of partner Levens. Counsel explained their attempts to make a smooth transition from AKL to Richardson Maraj, LLC, despite the difficult circumstances, and stressed the extensive pleadings already filed in this case by AKL. Counsel stated that they had been retained by Engle on November 1, 2015, and urged, in the spirit of fairness, that Engle's license should not be lost due to an oversight by counsel during the transition from AKL to Richardson Maraj, LLC.

¶ 18 On January 12, 2016, the ALJ issued an order that noted the case had been transferred to the Board on the pleadings and continued the matter for a status hearing on March 1, 2016.

¶ 19 On January 13, 2016, the Board filed its report of findings of fact, conclusions of law, and recommendation that Engle's license be revoked. Specifically, the Board noted the ALJ's December 1, 2015, default order for failure to answer and concluded that Engle had violated the provisions of the Act as alleged in the complaint. The Board had signed its report on January 12, 2016, and did not mention therein Engle's January 11 answer or motion to vacate the default order.

¶ 20 On February 2, 2016, Engle's counsel timely filed a motion to deny the Board's recommendation and remand the matter to the ALJ for a hearing on the merits. The motion argued that Engle failed to meet the answer deadline due to the oversight of her former counsel, the now-defunct law firm AKL, because shortly after a partner's death, the remaining AKL partner gave only one month's notice before he retired and closed the firm on the last business day before the deadline to file Engle's answer. Further, Engle, who was unaware of the answer deadline through no fault of her own, hired current counsel 10 days after the deadline had expired. The motion summarized the procedural history of the case and the circumstances of Engle's prior 2013 and current 2014 applications. The motion also briefly explained the alleged facts showing Engle's innocence of the charges against her and asked the Secretary not to impose the excessive and overly harsh penalty of revocation of Engle's license because the answer deadline oversight was not her fault.

¶ 21 On March 1, 2016, the ALJ issued an order that noted the case had been transferred to the Board on the pleadings and continued the matter for a status hearing on April 19, 2016.

¶ 22 On March 8, 2016, the Secretary of the Department's Division of Real Estate issued a final order that (1) denied Engle's motion to deny the Board's recommended license revocation penalty and to remand the case to the ALJ for a hearing and (2) revoked Engle's license. The Secretary stated that Engle's motion seemed to be based on her personal view that the license revocation was excessive and overly harsh and that she must be afforded an opportunity to present a defense to the allegations. The Secretary also stated that Engle was represented by counsel throughout the proceedings, had more than four months to answer the complaint, and had a fair opportunity and generous amount of time to present a defense. According to the Secretary, "[i]t was well within [Engle's] control to follow the rules of procedure applicable to disciplinary proceedings before the Department and, therefore to 'have her day in court.' " The Secretary concluded that the Board's recommendation was consistent with the discipline imposed in prior similar cases and found that a remand for a hearing was not warranted for a clearer understanding of the issues and that substantial justice was done in this case. Although the final order acknowledged that the Board had considered the matter on the pleadings pursuant to the ALJ's December 1, 2015, default order and that Engle's counsel had filed a motion to vacate that default order on January 11, 2016, the final order did not address the motion to vacate. There is no indication in the record that Engle's January 11 motion to vacate was considered or decided by the ALJ, the Board, or the Secretary.

¶ 23 Engle timely filed in the circuit court a complaint for administrative review and argued that her due process rights were violated when her license was revoked based on a default order rather than a hearing on the merits. Engle also argued that her failure to file an answer by the November 2, 2015, deadline was due to unforeseen and unavoidable circumstances, i.e. , the death of her initial attorney in July 2015, the retirement of the remaining partner and closing of the AKL law firm on October 30, 2015, and the answer deadline oversight during the difficult transition of AKL's pending cases to the successor law firm.

¶ 24 The circuit court affirmed the final administrative decision revoking Engle's license, and she timely appealed.

¶ 25 II. ANALYSIS

¶ 26 Engle challenges the Department's decision to revoke her license on the grounds that (1) she was deprived of her due process right to a hearing, which she did not forfeit, (2) her motion to vacate the ALJ's default order should have been considered and granted, (3) the Board should have held a hearing to establish a factual basis for its findings and recommended sanction of license revocation, and (4) the Department failed to establish that the revocation of Engle's license was consistent with the discipline imposed in prior cases.

¶ 27 A. Standard of Review

¶ 28 The Department's final decisions issued under the Act are subject to judicial review pursuant to section 3-101 et seq. of the Code of Civil Procedure (Code) ( 735 ILCS 5/3-101 et seq. (West 2014) ), which is commonly referred to as the Administrative Review Law. 225 ILCS 458/15-20(a) (West 2014). On administrative review, this court "reviews the administrative agency's final decision, not the circuit court's decision. [Citations.]" Sloper v. City of Chicago, Department of Administrative Hearings , 2014 IL App (1st) 140712, ¶ 15, 388 Ill.Dec. 10, 23 N.E.3d 1208. The plaintiff seeking administrative review bears the burden of proof. Marconi v. Chicago Heights Police Pension Board , 225 Ill. 2d 497, 532-33, 312 Ill.Dec. 208, 870 N.E.2d 273 (2006).

¶ 29 The applicable standard of review depends on whether the question presented is one of fact, one of law, or a mixed question of fact and law. Kouzoukas v. Retirement Board of the Policemen's Annuity & Benefit Fund of the City of Chicago , 234 Ill. 2d 446, 463, 334 Ill.Dec. 924, 917 N.E.2d 999 (2009). An administrative agency's decision on a question of law is not binding on a reviewing court and is subject to de novo review. Wolin v. Department of Financial & Professional Regulation , 2012 IL App (1st) 112113, ¶ 19, 367 Ill.Dec. 869, 983 N.E.2d 23. However, an agency's interpretation of a statute remains relevant where there is a reasonable debate about the meaning of the statute. Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board , 2015 IL 118043, ¶ 15, 410 Ill.Dec. 264, 69 N.E.3d 809.

¶ 30 In contrast, an agency's findings and conclusions on questions of fact are held to be prima facie true and correct. Id. "[W]hen a court reviews an agency's factual findings, the court will not reweigh the evidence or substitute its judgment for that of the agency. Rather, the court simply determines whether the findings of fact are against the manifest weight of the evidence." Id. An agency's finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Windsor Clothing Store v. Castro , 2015 IL App (1st) 142999, ¶ 26, 397 Ill.Dec. 332, 41 N.E.3d 983. "The mere fact that an opposite conclusion is reasonable or that the reviewing court might have ruled differently will not justify reversal of the administrative findings."

Abrahamson v. Illinois Department of Professional Regulation , 153 Ill. 2d 76, 88, 180 Ill.Dec. 34, 606 N.E.2d 1111 (1992).

¶ 31 Mixed questions of law and fact are reversible if they are clearly erroneous. Windsor Clothing Store , 2015 IL App (1st) 142999, ¶ 26, 397 Ill.Dec. 332, 41 N.E.3d 983. A mixed question of law and fact asks whether an undisputed rule of law as applied to established facts is or is not violated. Board of Education of the City of Chicago , 2015 IL 118043, ¶ 16, 410 Ill.Dec. 264, 69 N.E.3d 809. An agency's decision "is 'clearly erroneous' when the reviewing court is left with the definite and firm conviction that a mistake has been committed." Id.

¶ 32 "Even if the administrative decision is determined to be correct under the foregoing standards of review, the discipline imposed by the agency may still be reversed if it is found to constitute an abuse of discretion." Kazmi v. Department of Financial & Professional Regulation , 2014 IL App (1st) 130959, ¶ 21, 385 Ill.Dec. 568, 19 N.E.3d 126. "A sanction will be found to be an abuse of discretion if it is arbitrary and capricious, or if the sanction is overly harsh in view of the mitigating circumstances." Id. Nevertheless, an administrative agency's decision regarding the appropriate sanction to administer to protect the public is given deference by reviewing courts. Abrahamson , 153 Ill. 2d at 99, 180 Ill.Dec. 34, 606 N.E.2d 1111.

¶ 33 B. The Parties' Arguments

¶ 34 Engle argues that the Department's revocation of her license without a hearing violated due process because she did not forfeit her right to a hearing. Specifically, Engle argues that even though her January 11, 2016, answer was not filed by the November 2, 2015, deadline set by the ALJ, her answer was filed before the Board signed, on January 12, 2016, its report recommending the revocation of her license and before the final administrative decision was issued on March 8, 2016. Furthermore, when Engle filed her answer, which responded to the 127-count complaint and presented a meritorious defense to the allegations against her, she also filed a motion to vacate the ALJ's December 1, 2015, order that held her in default.

¶ 35 Her motion to vacate explained that the answer deadline was missed as a result of counsel's oversight during the chaotic circumstances under which the AKL law firm, after a partner's unexpected death in July 2015, closed abruptly on Friday, October 30, 2015, just before Engle's answer was due the following Monday. The chaotic circumstances included the transfer of AKL's pending cases to the firm of Engle's current counsel, which was moving into a new office space and hiring staff. Nevertheless, Engle argued that current counsel quickly and carefully answered the 127-count complaint against her shortly after the December and New Year holiday season. Engle also argued that the March 2016 final decision was a default judgment against her, and defendants improperly ignored her timely motion to vacate the ALJ's December 2015, default order and rushed to issue the drastic March 2016 default judgment revoking her license despite her showing of good cause to allow her answer to be filed in January 2016 and despite the absence of hardship on the Department to hold a hearing on the merits.

¶ 36 Engle also argues, without waiving her arguments about the impropriety of the default judgment, that when the Board proceeded on the ALJ's default order, the Board improperly issued its report by considering only the allegations of the complaint and failing to conduct any type of prove-up hearing to establish a factual basis for its findings and recommended sanction. Finally, Engle argues that the Department improperly imposed the overly harsh discipline of revocation of her license without stating the reasons for its decision and, thus, this court cannot determine whether the discipline imposed on Engle was consistent with the discipline imposed in prior cases.

¶ 37 In response, defendants argue that the final decision finding Engle in default and revoking her license was neither an abuse of discretion nor contrary to law. Defendants contend that the final decision was consistent with the statutory provisions governing disciplinary proceedings. Furthermore, Engle was granted an ample opportunity to file an answer but did not do so within the allotted time, did not file a motion to extend the November 2, 2015, answer deadline, and did not provide any reasonable excuse for her failure to comply with that deadline. Also, defendants assert that Engle failed to show she acted diligently after the ALJ's December 1, 2015, order held her in default because almost six weeks elapsed before she filed, on January 11, 2016, her answer and motion to vacate the default order.

¶ 38 In addition, defendants allege that Engle failed to comply with the Act and the Department's rules because her January 11 answer was not verified and her February 2, 2016, motion, which asked the Secretary to deny the Board's recommendation and to remand the matter for a hearing on the merits, did not include an affidavit to support alleged facts that were not part of the record. Notwithstanding these alleged deficiencies, defendants argue that Engle's assertions in her February 2 motion do not show that she, due to circumstances beyond her control, could not comply with the rules and orders governing her disciplinary proceeding. Finally, defendants argue that the revocation of Engle's license was not an abuse of discretion because it was reasonable, was not arbitrary, and was related to the Act's purpose to prevent injury to the public by ensuring that the real estate appraiser occupation is practiced with competence, honesty, and integrity. Specifically, defendants assert that, pursuant to the ALJ's December 2015, default order, the complaint allegations against Engle-i.e. , she failed to sufficiently explain appraisal experience work hours in her work log and provided false information in her application-were deemed admitted and, thus, she was not qualified to receive an appraiser license.

¶ 39 C. The Agency's Procedures

¶ 40 First, we address de novo whether the administrative proceeding violated Engle's right to due process. See Sudzus v. Department of Employment Security , 393 Ill. App. 3d 814, 824, 333 Ill.Dec. 1, 914 N.E.2d 208 (2009).

¶ 41 Here, there is no dispute that (1) Engle had notice of the complaint, (2) the ALJ's October 14, 2015, order-which denied Engle's motion to dismiss the complaint and ordered her to file an answer by November 2, 2015-was sent to the address of her counsel of record, (3) neither Engle nor her counsel filed an answer or motion for an extension of time by the November 2 deadline, and (4) the ALJ had the authority to issue the December 2015, order that held Engle in default and transferred the matter to the Board for its consideration on the pleadings only. Generally, procedures similar to the answer deadline and default provisions at issue here have been found to provide adequate constitutional due process safeguards. See Glassworks, Inc. v. Human Rights Comm'n , 164 Ill. App. 3d 842, 850, 115 Ill.Dec. 818, 518 N.E.2d 343 (1987). However, we find that the agency's handling of Engle's late answer, motion to vacate the ALJ's December 2015 default order, and motion to deny the Board's recommendation and to remand for a hearing (both of which motions were not in any way time barred) is at variance with certain agency rules or procedures concerning answers, defaults, and motions. These discrepancies compel our conclusion that Engle was denied due process.

¶ 42 A professional license constitutes a property interest entitled to due process protection ( Smith v. Department of Registration & Education , 412 Ill. 332, 341, 106 N.E.2d 722 (1952) ), and due process standards apply to proceedings to revoke a professional license ( Bruns v. Department of Registration & Education , 59 Ill. App. 3d 872, 876, 17 Ill.Dec. 189, 376 N.E.2d 82 (1978) ).

¶ 43 "[A]n administrative proceeding is governed by the fundamental principles and requirements of due process of law. However, due process is a flexible concept and requires only such procedural protections as fundamental principles of justice and the particular situation demand." Abrahamson , 153 Ill. 2d at 92, 180 Ill.Dec. 34, 606 N.E.2d 1111. "An administrative hearing comports with due process where the parties are given the opportunity to be heard, the right to cross-examine adverse witnesses and an impartial ruling based on the evidence." Gonzalez v. Pollution Control Board , 2011 IL App (1st) 093021, ¶ 42, 355 Ill.Dec. 890, 960 N.E.2d 772. A court will find a due process violation only if there is a showing of prejudice. Id. A claim that an administrative proceeding violated an individual's right to due process presents a question of law and therefore is subject to de novo review. Sudzus , 393 Ill. App. 3d at 824, 333 Ill.Dec. 1, 914 N.E.2d 208.

¶ 44 Relevant to this appeal, the Act provides that when the Department commences a disciplinary proceeding by issuing a complaint, the Department must notify the licensee that the failure to file an answer will result in a default being entered against the licensee. 225 ILCS 458/15-15(b) (West 2014). "If the licensee * * * fails to file an answer after service of notice, * * * her license may, at the discretion of the Department, be suspended, revoked, or placed on probationary status and the Department may take whatever disciplinary action it deems proper, including limiting the scope, nature, or extent of the person's practice, without a hearing." Id. "At the time and place fixed in the notice, the Board shall conduct [a] hearing of the charges, providing both the accused person and the complainant ample opportunity to present in person or by counsel such statements, testimony, evidence, and argument as may be pertinent to the charges or to a defense thereto." Id. § 15-15(c). When the Board's report of its proposed findings, conclusions, and recommendation to the Secretary is served on the licensee, the licensee has 20 days to present the Secretary with a written motion for "either a rehearing, a proposed finding of fact, a conclusion of law, or an alternative sanction, and shall specify the particular grounds for the request." Id. § 15-15(d).

¶ 45 "If the Secretary is not satisfied that substantial justice has been done, the Secretary may order a rehearing by the Board or other special committee appointed by the Secretary, may remand the matter to the Board for its reconsideration of the matter based on the pleadings and evidence presented to the Board, or may enter a final order in contravention of the Board's recommendation." Id. The Secretary has the authority to appoint a licensed Illinois attorney to serve as the hearing officer in any action to suspend, revoke the license of, or otherwise discipline any licensee, and the hearing officer shall have full authority to conduct the hearing. Id. § 15-15(h). The Act expressly adopted and incorporated the Illinois Administrative Procedure Act (Procedure Act) ( 5 ILCS 100/1-1 et seq. (West 2014) ), but the Act shall control over any conflict between it and the Procedure Act. 225 ILCS 458/15-20(c) (West 2014).

¶ 46 Relevant to this appeal, the Procedure Act provides that an agency's rules establishing procedures may include default procedures ( 5 ILCS 100/10-10 (West 2014) ), all parties in a contested case shall be afforded an opportunity for a hearing after reasonable notice (id. § 1025(a) ), all parties shall be afforded an opportunity to be represented by legal counsel and to respond and present evidence and argument (id. § 10-25(b) ), and, unless precluded by law, disposition of any contested case may be made by default (id. § 10-25(c) ). In a contested case, when a majority of the agency officials who are to render the final decision has not heard the case or read the record and the decision is adverse to the non-agency party, the final decision shall not be made until a proposed decision is served on the parties and the adversely affected party is afforded an opportunity to file exceptions and to present a brief and, if the agency permits, oral argument to the agency officials who are to render the decision. Id. § 10-45. An agency's decision in a contested case shall be void unless the proceedings are conducted in compliance with the provisions of the Act, except to the extent the agency has adopted its own rules for contested cases. Id. § 10-50(c).

¶ 47 The rules adopted by the Department for administrative proceedings provide, inter alia , that the failure to appear at a scheduled hearing is deemed a waiver of the right to present evidence and, after the Department presents an offer of proof that the licensee was given proper notice, the Board shall make its recommendation. 68 Ill. Adm. Code 1110.100 (2014). The licensee shall file a written answer within 10 days of the filing of the complaint; if a hearing officer issues "a [n]otice to plead or be held in default" and the licensee does not file an answer or other responsive pleading by the designated deadline, then the licensee "will be held in default." 68 Ill. Adm. Code 1110.120(a), (c) (2014).

¶ 48 The Department also adopted rules as to motions. "Motions will be made in writing, unless otherwise allowed by the [Board], hearing officer or Director during the course of a hearing." 68 Ill. Adm. Code 1110.210(a) (2014). Allowed written motions include requesting dismissal of a complaint for failure to state facts which, if true, would form a sufficient basis for discipline; requesting a continuance or extension of time to comply with any provision of the rules; requesting an order granting a rehearing or additional hearings; requesting an order that the Board or hearing officer deem a failure to file an answer to be an admission of the truth of the allegations contained in the complaint; and requesting that an order be vacated or modified. Id. "When any motion is filed, the [Board], hearing officer or Director may allow oral argument if this is deemed necessary to a fuller understanding of the issues presented. Where facts are alleged as a basis for the request, which are not a part of the record in the case, an affidavit will be attached to the motion setting forth such facts." 68 Ill. Adm. Code 1110.210(b) (2014).

¶ 49 "Where a [Board] or hearing officer grants any motion which would dispose of the case, it shall first afford the parties an opportunity to cure the defects in pleading or proof, and the ruling will be construed as a recommendation, rather than as a final agency decision; in such a case a [Board] Report setting forth the ruling, the reasons therefore, and the effect of the ruling will be forwarded to the Director." 68 Ill. Adm. Code 1110.240(k) (2014). Finally, the "Director may grant variances from these rules in individual cases where he finds that: 1) The provision from which the variance is granted is not statutorily mandated; 2) No party will be injured by the granting of the variance; 3) The rule from which the variance is granted would, in the particular case, be unreasonable or unnecessarily burdensome." 68 Ill. Adm. Code 1110.270(a) (2014).

¶ 50 D. Due Process and Defaults

¶ 51 Although the Act and the agency's rules provide that the failure to file an answer will result in a respondent being held in default ( 225 ILCS 458/15-15(b) (West 2014); 68 Ill. Adm. Code 1110.120(c) (2014) ), a "default order is not the same as a default judgment" ( In re Haley D. , 2011 IL 110886, ¶ 64, 355 Ill.Dec. 375, 959 N.E.2d 1108 ). "A default order precedes a default judgment, and additional steps must normally be taken before judgment is actually entered." Id. (the mere finding of a default is not final and does not even qualify as an immediately appealable interlocutory order).

¶ 52 Furthermore, the agency's rules permit motions requesting an extension of time to comply with rule provisions, requesting a rehearing or additional hearing, and requesting that an order be vacated or modified. 68 Ill. Adm. Code 1110.210(a) (2014). There is no limitation in the rules that prevents a party from filing these types of motions at any time prior to the issuance of the agency's final decision, and the rules indicate that either the ALJ, the Board, or the Director has the authority to rule on such motions depending on the phase of the proceedings at the time a particular motion had been filed. See 68 Ill. Adm. Code 1110.170(a), (c), 1110.210(b), 1110.240(k), 1110.270(a) (2014).

¶ 53 Consequently, Engle's January 11, 2016, motion to vacate the ALJ's December 2015 default order was not time barred and was permissible even though the ALJ already had transferred the case to the Board for its deliberations on the pleadings. Furthermore, there is no indication in the record that the ALJ and Board were aware of Engle's January 11 late answer and motion to vacate the ALJ's default order before the Board signed its report on January 12 and filed it on January 13. Although the agency's March 8, 2016, final order mentioned that Engle had filed the January 11 motion to vacate, the final order did not discuss or decide that motion. There is no indication in the record that Engle's January 11 motion to vacate the default order was considered or decided by the ALJ, the Board, or the Director on behalf of the Secretary.

¶ 54 In addition, there is no indication in the record that defendants, consistent with the agency's rules, filed a motion to request that the Board or ALJ deem Engle's failure to file a timely answer to be an admission of the truth of the allegations contained in the agency's complaint. See 68 Ill. Adm. Code 1110.210(a)(9) (2014) ; see also Dimensions Medical Center, Ltd. v. Elmhurst Outpatient Surgery Center, L.L.C. , 307 Ill. App. 3d 781, 798, 240 Ill.Dec. 768, 718 N.E.2d 249 (1999) (an agency cannot ignore its own regulations in issuing a decision). This omission is significant because the Department had the burden of proof and the Board may make a discipline recommendation "only where the Department establishes by clear and convincing evidence that the allegations of the Complaint are true." 68 Ill. Adm. Code 1110.190(a) (2014). Furthermore, neither the ALJ's October 14, 2015, order setting the answer deadline nor the ALJ's December 1, 2015, order holding Engle in default indicated that her failure to timely answer resulted in her admission of the truth of the allegations against her. Although defendants argue that the ALJ's July 28, 2015, order had warned Engle that her failure to answer or otherwise plead by September 8, 2015, would result in a default order and "the entry of a finding in favor of the Department on all allegations," the record establishes that Engle did "otherwise plead" by filing her motion to dismiss the complaint by that September 8 deadline.

¶ 55 Regarding defaults, this court has held that there is no due process violation in an administrative agency proceeding where the negligence or intentional conduct of a party results in the entry of a default judgment against the party. Wolin , 2012 IL App (1st) 112113, ¶¶ 28, 48, 367 Ill.Dec. 869, 983 N.E.2d 23 (no due process violation where the agency found the respondent physician in default because he had forfeited his right to a hearing when he refused to comply with the agency's multiple orders to produce medical records that were subject to valid record-release authorizations); Metz v. Illinois State Labor Relations Board , 231 Ill. App. 3d 1079, 1086, 1093, 173 Ill.Dec. 231, 596 N.E.2d 855 (1992) (no due process violation where the respondent filed a late answer, the ALJ gave the respondent an opportunity to respond to the charging party's motion for default, and then the agency strictly enforced its regulation that the failure to file a timely answer resulted in the respondent's admission of the allegations in the complaint); Glassworks , 164 Ill. App. 3d at 849-50, 115 Ill.Dec. 818, 518 N.E.2d 343 (no due process violation where the default judgment was entered against the uncooperative respondent company for failure to comply, without good cause, with reasonable procedural rules-i.e. , the respondent's officers failed to appear at the scheduled fact-finding conference because they were on vacation-and the respondent was afforded review concerning the propriety of the default order).

¶ 56 However, unlike the defaulted parties in Wolin , Metz , and Glassworks , Engle did not receive either multiple opportunities to comply with the order that eventually led to the default, or an opportunity to respond to any motion for default or request that her failure to timely file an answer be deemed an admission of the truth of the allegations contained in the complaint. Moreover, she was not afforded review concerning the propriety of the default order. Also, Engle did not fail to appear at a scheduled hearing; rather, a hearing on the merits was never scheduled because the agency issued a default judgment against her despite her pending motion to vacate the ALJ's default order.

¶ 57 In addition, Engle alleged the existence of good cause to explain her failure to file a timely answer. Specifically, she alleged that her failure to file her answer by the November 2 deadline was not due to her intentional conduct but rather was due to an unintentional oversight by her counsel during chaotic circumstances involving the transition of pending cases from the abruptly closed AKL law firm to Engle's current counsel. Engle alleged that the chaotic transition period between the law firms occurred at the same time as her November 2 answer deadline and the ALJ's December 1 default order. Furthermore, the record establishes that Engle had actively participated in the proceedings before the alleged chaotic period that resulted in the default order, where she had filed a motion to dismiss the agency's complaint, a reply to the agency's response, and a motion to disqualify the Department's counsel. She also alleged that her 118-page January 11 answer thoroughly responded to the agency's 127-count complaint.

¶ 58 We reject defendants' argument that Engle's January 11 answer and motion to vacate and her February 2 motion to deny the Board's recommendation and to remand for a hearing should not be considered because those documents do not comply with the Act or the agency's rules. Specifically, defendants state that Engle's answer was not verified (see 225 ILCS 458/15-15(b) (West 2014) ) and her motions lacked affidavits setting forth the alleged facts about counsel's unintentional oversight resulting in the default order (see 68 Ill. Adm. Code 1110.210(b) (2014) ). The Act and rules do not indicate that these technical deficiencies in pleadings or motions shall serve either as grounds for a default order or a basis to ignore a motion to vacate a default order. To the contrary, the rules provide that if the Board or ALJ grants any motion that would dispose of the case, "it shall first afford the parties an opportunity to cure the defects in pleading or proof." 68 Ill. Adm. Code 1110.240(k) (2014). Also, the Director has discretion to grant variances from the rules in individual cases when the variance will not injure any party and the application of the rule in the particular case would be unreasonable or unnecessarily burdensome. 68 Ill. Adm. Code 1110.270 (2014). Given the severity of the recommended discipline of license revocation at issue in this case, Engle should have been allowed to cure any technical defect in her answer or motion to vacate with the appropriate verification or affidavit.

¶ 59 In evaluating a due process claim, courts should consider (1) the private interest that will be affected by the official agency action, (2) the risk of an erroneous deprivation of such interest and the value, if any, of any additional or substitute procedural safeguards, and (3) the agency's interest, including the administrative burdens that any additional or substitute procedural safeguards would entail. People ex rel. Birkett v. Konetski , 233 Ill. 2d 185, 201, 330 Ill.Dec. 761, 909 N.E.2d 783 (2009). Engle's license was a property right within the meaning of the constitutional guarantees of due process of law ( Smith , 412 Ill. at 341, 106 N.E.2d 722 ), and there was a significant risk that her license may have been revoked erroneously. Specifically, Engle filed a detailed and lengthy, albeit late, answer alleging facts showing a meritorious defense to the many allegations against her. However, no fact-finding hearing was held, and defendants issued a default judgment against her without fully complying with the agency's rules about considering and adjudicating motions to vacate orders and, in situations involving default orders, obtaining a ruling deeming a licensee's failure to file a timely answer to be an admission of the truth of the allegations contained in the agency's complaint. Finally, the agency's interest in protecting the public by ensuring that licensed appraisers are competent and honest is substantial, but allowing Engle to present evidence and cross-examine witnesses at a hearing does not impose any additional procedures that would increase the agency's administrative and fiscal burdens. This is not a matter where defendants had expended time and resources to prepare for and attend a scheduled hearing on the merits but the licensee failed to appear and avail herself of that opportunity to refute the allegations against her.

¶ 60 Accordingly, we find that Engle was denied due process where (1) she filed a motion to vacate the default order, which was not time barred and was allowed under the agency's rules, but neither the Board, nor the Director on behalf of the Secretary, nor an ALJ considered or decided that motion; (2) the Department, after the ALJ had held Engle in default, did not file a written motion to request that the Board or ALJ deem Engle's failure to file a timely answer to be an admission of the truth of the allegations against her; and (3) no ruling deeming the allegations admitted was made until, arguably, the agency's final order, which had the effect of a default judgment but was issued despite Engle's pending motion to vacate the default order.

¶ 61 E. The Agency's Discretion to Hold a Hearing

¶ 62 Next, we address Engle's claim that the agency's final decision to revoke her license and deny her request to remand for a hearing before the ALJ was an abuse of discretion and failed to satisfy the accomplishment of substantial justice under the circumstances of this case.

¶ 63 According to the Act and Department rules, after the Board issues its report, a licensee may file a motion for a rehearing or additional hearings, a proposed finding of fact, a conclusion of law, or an alternative sanction. 225 ILCS 458/15-15(d) (West 2014); 68 Ill. Adm. Code 1110.240 (g) (2014). When considering such a motion, if the Director determines that substantial justice has not been done, the Director shall order a rehearing. 225 ILCS 458/15-15(d) (West 2014). An abuse of discretion occurs when the decision is arbitrary or capricious or no reasonable person would agree with it. Windsor Clothing Store , 2015 IL App (1st) 142999, ¶ 48, 397 Ill.Dec. 332, 41 N.E.3d 983. "A decision is arbitrary and capricious if it contravenes legislative intent, fails to consider a critical aspect of the matter, or offers an explanation so implausible it cannot be considered an exercise of the agency's expertise." Id. In determining whether there has been an abuse of discretion, this court may not substitute its judgment for that of the agency or even determine whether the agency exercised its discretion wisely. Id.

¶ 64 In rejecting Engle's motion to deny the Board's recommendation and to remand for a rehearing, the Director, on behalf of the Secretary, found that substantial justice was done in this case because Engle "had ample opportunity to present a defense in this matter" where she had over four months within which to file an answer to the complaint but instead had filed motions and then filed her late answer six weeks after the ALJ had held her in default. The Director also stated that "it was well within [Engle's] control to follow the rules of procedure applicable to disciplinary proceedings," so she could not "now complain that her 'license should not be lost due to oversight' " because her failure to comply with the rules had cost her "her day in court." Furthermore, the Director stated that Engle "was represented by counsel throughout the course of the proceedings before the Department."

¶ 65 We find that the decision to deny Engle's request to remand for a hearing on the merits was an abuse of discretion under the particular circumstances of this matter. The Director's decision asserted that Engle had "more than four months" to answer the Department's June 29, 2015, complaint and criticized her use of that time to move the ALJ to dismiss the complaint and disqualify the agency's counsel. However, the agency's rules and the ALJ permitted Engle to file her motion to dismiss the complaint in lieu of her answer, and we find no reason to penalize her for exercising that option. Consequently, when the ALJ denied Engle's motion to dismiss on October 14, 2015, she only had about two weeks-not four months-to file her answer by the November 2, 2015, deadline.

¶ 66 Furthermore, the Director failed to consider certain critical aspects of this matter. As discussed in detail above, defendants failed to consider and adjudicate Engle's motion to vacate the ALJ's default order, which was properly filed pursuant to the agency's rules, and there was no ruling that deemed Engle's failure to file a timely answer to be an admission of the truth of the allegations against her. In addition, both Engle's motion to vacate the default order and motion to deny the Board's recommendation and to remand for a hearing alleged the existence of good cause to explain the "chaotic circumstances" that caused Engle's counsel to miss the answer deadline due to inadvertent oversight. Under Engle's alleged facts showing good cause, it was unreasonable to conclude that she was actually or sufficiently represented by counsel during the chaotic period when cases were being transferred to the successor law firm and that the failure to file an answer by the November 2 deadline was a matter well within her control.

¶ 67 We conclude that the Director's decision denying Engle's motion to remand the matter to the ALJ for a hearing on the merits was an abuse of discretion.

¶ 68 III. CONCLUSION

¶ 69 Because we hold that (1) the agency's proceeding denied Engle's right to due process and (2) the Director abused his discretion when he denied Engle's motion to deny the Board's recommendation and to remand the matter to the ALJ for a hearing, we need not consider Engle's arguments that (3) the revocation of her license was improper without some type of prove-up proceeding and (4) the final decision failed to establish that the discipline imposed on her was consistent with prior cases.

¶ 70 Accordingly, we reverse the judgment of the circuit court that affirmed the agency's final decision, which revoked Engle's license and denied her motion to deny the Board's recommendation and to remand the case to the ALJ for a hearing. We remand this matter to the agency for a hearing on the allegations of the Department's complaint.

¶ 71 Circuit court judgment reversed.

¶ 72 Board decision reversed and remanded.

Presiding Justice Reyes and Justice Rochford concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Maria BRUMMEL, Executor of the Estate of Bruce Brummel, Deceased, Plaintiff-Appellant, v. Richard D. GROSSMAN ; Agnes E. Grossman; Law Offices of Richard D. Grossman ; Richard C. Daniels ; Daniels, Long & Pinsel, LLC; Jason S. Marks; and Noonan, Perillo, Polenzani & Marks, Ltd., Defendants
    (Richard C. Daniels ; Daniels, Long & Pinsel, LLC; Jason S. Marks; and Noonan, Perillo, Polenzani & Marks, Ltd., Defendants-Appellees).
    No. 1-16-2540
    Appellate Court of Illinois, First District, Fourth Division.
    Filed March 29, 2018 Rehearing denied May 2, 2018
    Julie A. Boynton and Donald L. Johnson, of Yorkville, for appellant.
    Joseph R. Marconi, David M. Macksey, and Brian C. Langs, of Johnson & Bell, Ltd., of Chicago, for appellees Richard C. Daniels and Daniels, Long & Pinsel, LLC.
    Daniel F. Konicek and Michael J. Corsi, of Konicek & Dillon, P.C., of Geneva, for other appellees.
   JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 The instant appeal arises from the dismissal of plaintiff Maria Brummel's amended complaint for legal malpractice filed against defendants, attorney Richard C. Daniels and the law firm of Daniels, Long & Pinsel, LLC (collectively, Daniels defendants), and attorney Jason S. Marks and the law firm of Noonan, Perillo, Polenzani & Marks, Ltd. (collectively, Marks defendants). The lawsuit, originally filed by Bruce Brummel (decedent) on December 30, 2014, alleged legal malpractice against defendants for negligently representing him during a workers' compensation or occupational diseases case against his employer, Nicor Gas, which settled on October 25, 2011. The trial court ultimately dismissed the legal malpractice complaint with prejudice pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(5) (West 2014) ), finding that the complaint was not filed within the Code's two-year statute of limitations governing legal malpractice actions ( 735 ILCS 5/13-214.3 (West 2014) ). Plaintiff appeals, arguing that the statute of limitations was tolled since the decedent filed his complaint within two years of discovering his injury, and that defendants should be estopped from asserting the statute of limitations defense because the decedent reasonably relied on defendants' misrepresentations, which delayed his discovery of injury. For the following reasons, we affirm the judgment of the trial court.

¶ 2 BACKGROUND

¶ 3 The decedent's employer Nicor Gas (Nicor) is a natural gas distribution company. The decedent began working for Nicor in December 1980 when he was 18 years old, and he remained with the company in various positions for over 22 years. In 2001, the decedent and some of his coworkers at Nicor began to feel ill with symptoms of vomiting, diarrhea, abdominal pain, weakness, and fatigue. The decedent consulted a physician who opined that the decedent's symptoms were caused by ingestion from chemicals. From 2001 to 2003, the decedent, as well as other employees, informed Nicor about his concerns that its drinking water was contaminated, but Nicor did not take any action to investigate or remedy the problem. The decedent also reported his concerns to the Occupational Safety and Health Administration in 2001 after Nicor did not take action. The decedent conducted his own investigation designed to discover the source of the chemicals at the Nicor facility where he worked, and he found that the drinking water in the break room connected to the flush line of the boiler, which allowed toxins to be emitted from the boiler into the drinking water consumed by Nicor employees. The decedent informed his union about the contaminated drinking water, but the union also ignored his requests for help. In late 2002, the decedent reported his findings concerning the connection between the boiler and the drinking water to the Occupational Safety and Health Administration for the second time, and he reported his findings to the City of Aurora, the Kane County Health Department, and the Illinois Department of Public Health. The decedent's health continued to deteriorate, and he was forced to take a medical leave of absence on October 6, 2003.

¶ 4 On October 14, 2003, the City of Aurora's emergency response team and head plumbing inspector, Robert Thompson, inspected the plumbing in the boiler room and closed the facility. The inspection revealed that the drinking water was contaminated with methylene chloride and/or dichloro methane. Nicor later resolved the problem by installing backflow protection devices, which conformed the plumbing to city, state, and federal water safety regulations.

¶ 5 During his career at Nicor, the decedent received regular raises and was entitled to various employment benefits, and at the time he began his leave of absence, he was earning over $100,000 per year in wages, with an average weekly wage of $1800. From October 2003 to January 2004, the decedent applied for and received 11 weeks of extended benefit account payments from an insurance benefit program he had purchased at Nicor to cover sick leave absences. Although the decedent was eligible for extended benefit account payments for 39 weeks, Nicor terminated the decedent's benefits after only 11 weeks of payments. As a result of the loss of income, the decedent did not have enough money to pay for his medical treatment and family expenses. Nicor officially terminated the decedent's employment on April 15, 2004. During this period of absence, the decedent received no temporary total disability payments from Nicor under the Workers' Compensation Act or Workers' Occupational Diseases Act, nor did Nicor pay for any of his medical expenses.

¶ 6 In late 2005 or early 2006, the decedent discussed his health and work issues with defendant attorney Richard C. Daniels, a friend that the decedent had met through the Shriner's, and defendant Daniels agreed to represent decedent in a workers' compensation and occupational diseases case and an action against Nicor for retaliatory discharge and violating the Whistleblower Act ( 740 ILCS 174/1 et seq. (West 2004) ). The decedent and defendant Daniels entered into a retainer agreement that defendant Daniels would receive a contingency fee of one-third of any recovery for extended benefits and that decedent would pay all costs. Defendant Daniels also agreed to be paid his fee on the workers' compensation and/or occupational diseases action in accordance with the provisions of the Workers' Compensation Act and the Workers' Occupational Diseases Act. After the decedent retained defendant Daniels as counsel, defendant Daniels recommended that the decedent also retain defendant attorney Jason S. Marks as cocounsel for the Workers' Compensation Act and Workers' Occupational Diseases Act claim since defendant Marks represented that he had experience in handling those cases. Defendant Marks agreed, and defendants Daniels and Marks entered into a fee sharing agreement, and the decedent agreed.

¶ 7 In 2006, defendant Marks filed a workers' compensation and/or occupational diseases claim against Nicor on the decedent's behalf. As noted, during the pendency of this case, the decedent never received any temporary total disability benefits, and no petition under section 19(b-1) of the Workers' Compensation Act was ever filed on his behalf ( 820 ILCS 305/19(b1) (West 2006) ).

¶ 8 Five years later, while the workers' compensation claim was still pending, Nicor offered the decedent a lump sum settlement of $125,000, and decedent accepted it on October 20, 2011. Defendant attorney had made a demand for only $150,000 to settle the matter. An arbitrator approved the settlement five days later on October 25, 2011.

¶ 9 On December 30, 2014, the decedent filed the instant lawsuit against the Daniels and Marks defendants for legal malpractice, claiming that they failed to file a section 19(b-1) petition to obtain temporary total disability payments for decedent during the pendency of his Workers' Compensation Act and/or Workers' Occupational Diseases Act case and that defendants Daniels and Marks induced him into accepting an "unreasonably low" $125,000 settlement offer from Nicor. The lawsuit also alleged two counts against the Daniels defendants and the Grossman defendants for their handling of the decedent's related civil lawsuit against Nicor for retaliatory discharge and violating the Whistleblower Act ( 740 ILCS 174/1 et seq. (West 2004) ), and one count for defendant Daniels's negligent referral of the Marks and Grossman defendants. However, those counts are not at issue in this appeal.

¶ 10 In the complaint, the decedent claimed that he spoke to defendants Daniels and Marks multiple times and asked them about the status of his Workers' Compensation Act and/or Workers' Occupational Diseases Act case and lack of temporary total disability benefits, and wanted to know why the matter was moving so slowly. Decedent alleged that defendant Daniels reassured him that "everything was fine, that the matter took time, and that Defendant Marks was handling the matter competently," and defendant Marks reassured the decedent that the case was progressing and that he would receive compensation for his injuries. The complaint alleged that, "for unknown reasons," neither defendant Marks nor defendant Daniels sought temporary total disability benefits during the pendency of the decedent's workers' compensation and/or occupational diseases case even though temporary total disability benefits "were available and [the decedent] was entitled" to receive them. As a result, the complaint alleged that the Daniels and Marks defendants committed legal malpractice for failing to seek temporary total disability benefits for the decedent while his case was pending.

¶ 11 Concerning the settlement of the underlying workers' compensation case, the decedent alleged in the complaint that he initially thought Nicor's $125,000 settlement offer was "unreasonably low" prior to accepting, but defendant Daniels reassured him that the amount was the best offer that he could receive and that it was a good settlement amount. The decedent further claimed that, "[d]ue to continued assurances" made by defendants Daniels and Marks, he did not know that the settlement amount "was far below what he should have received in compensation" until he consulted with a new attorney in 2014.

¶ 12 The decedent passed away on June 3, 2015, while his lawsuit was still pending. The trial court substituted Maria Brummel, the executor of his estate, as plaintiff on October 6, 2015.

¶ 13 On December 4, 2015, the Marks defendants filed a section 2-619(a)(5) motion to dismiss the complaint as untimely pursuant to the Code's two-year statute of limitations governing legal malpractice actions. 735 ILCS 5/2-619(a)(5), 13-214.3 (West 2014). The motion to dismiss argued that over three years had elapsed between the settlement of the underlying workers' compensation and/or occupational diseases case and the filing of the decedent's instant legal malpractice lawsuit and that the decedent did not show any affirmative acts or misrepresentations by defendants after the settlement to prevent the decedent's discovery of the cause of action. The motion to dismiss also argued that the decedent was aware of the potential for temporary total disability benefits prior to the settlement and that the settlement order, which the decedent signed, stated that the settlement was a complete and final resolution to his Workers' Compensation Act and Workers' Occupational Diseases Act case, including any unpaid temporary total disability payments. The Daniels defendants later joined the motion to dismiss. The decedent's response to the motion to dismiss does not appear in the record on appeal.

¶ 14 On April 5, 2016, the trial court held a hearing on defendants' motion to dismiss. The trial court pointed to paragraph 94 of the complaint, which read, "Due to continued assurances made by Defendant Daniels and Defendant Marks, [the decedent] did not learn until 2014 that his worker's compensation and occupational diseases settlement amount was far below what he should have received." The trial court told plaintiff's counsel, "I don't know what you're telling me in paragraph 94" and indicated that it assumed that paragraph 94 was included to establish the discovery rule, which would toll the statute of limitations. The trial court told plaintiff's counsel that "I don't even know what they're saying the assurances are, quite frankly," and plaintiff's counsel responded that the assurances referenced in paragraph 94 of the complaint were the assurances that were given to the decedent at the time of the settlement, which the trial court understood to be the typical "assurances that are often given in many cases, [i]t's the best we're going to get; you could do worse at trial; there's a lot of uncertainty." At the conclusion of the hearing, the trial court considered the motion to dismiss as though it had been submitted pursuant to section 2-615 as a motion for failure to state a cause of action ( 735 ILCS 5/2-615 (West 2014) ), rather than section 2-619 ( 735 ILCS 5/2-619 (West 2014) ), and granted the motion without prejudice, providing plaintiff a "final opportunity to amend" the complaint with sufficient information concerning "[w]hat are these assurances, exactly what fact or facts." In a separate order on April 13, 2016, the trial court granted plaintiff leave to file an amended complaint concerning the legal malpractice claims against the Daniels and Marks defendants only. The order further stated that plaintiff was not given leave to amend the pleadings concerning the Daniels and Grossman defendants' handling of the decedent's separate whistleblower lawsuit. However, that portion of the order is not part of this appeal.

¶ 15 On April 22, 2016, plaintiff filed an amended complaint in the instant lawsuit. In the amended complaint, plaintiff claimed that, although the Workers' Compensation Act and Workers' Occupational Diseases Act provide for temporary total disability benefits, defendants told the decedent that he was not eligible to receive payments without explaining why. Plaintiff also claimed that some of the decedent's Nicor coworkers told him that they were not receiving temporary total disability benefits despite applying for them while their cases were pending. Plaintiff further claimed that the decedent did not obtain temporary total disability benefits because the Daniels and Marks defendants "failed to timely obtain or develop medical support of his medical condition so an interim payment claim could be successfully made" and that, prior to the settlement, defendants told the decedent that "he did not need to worry about [temporary total disability benefits] payments because he would be compensated for work injuries in the final resolution of the case." As a result, the amended complaint alleged legal malpractice against the Daniels and Marks defendants for failing to timely obtain or develop the medical support evidence needed to seek temporary total disability benefits.

¶ 16 Plaintiff also argued that the settlement was insufficient since the amount of money the decedent settled for was less than what he should have received. Plaintiff claimed that the decedent knew that, based on his own experience and what some his coworkers had told him, Nicor had a practice of prolonging workers' compensation or occupational diseases cases for extended periods of time to pressure employees to settle for less money than they should have received. Plaintiff also claimed that some of the decedent's coworkers told him that Nicor offered them settlement amounts that were similar to or less than the $125,000 settlement offer to the decedent and that they also had waited years to settle their cases. The amended complaint, however, removed the allegation that the decedent initially considered the $125,000 settlement offer "unreasonably low." Plaintiff claimed that both defendants Daniels and Marks told the decedent that the settlement offer from Nicor was good and urged him to accept the offer since Nicor was not willing to pay more. The amended complaint also alleged that defendant Daniels, but not defendant Marks, assured the decedent that, in addition to the settlement money he received, he would also "still be able to make a recovery against [Nicor] in his retaliatory discharge/whistleblower case" and that, "on multiple occasions" after the settlement but before the whistleblower case was dismissed, defendant Daniels assured the decedent that "he would be receiving additional funds to the funds he received in the worker's compensation [and occupational diseases] action to compensate him for his injuries." Plaintiff argued that the decedent believed defendant Daniels's "assurances" after the settlement of additional compensation and "believed that [defendant] Daniels was protecting his interests in both litigations."

¶ 17 At a hearing on defendants' motion to dismiss on August 25, 2016, the trial court determined that, "whether you're an attorney or not an attorney, [the settlement agreement]'s pretty clear in terms of what it includes and what it doesn't include." The trial court found that, considering the amount of money that the decedent had been making per year at Nicor and the eight years he was out of work, "[the decedent] knew or should have known at the time of the entry of original [settlement] order * * * that something was a miss [sic ]." As a result, the trial court granted defendants' motion to dismiss, and plaintiff now appeals.

¶ 18 ANALYSIS

¶ 19 On appeal, plaintiff claims that the trial court erred when it dismissed decedent's complaint, arguing (1) that the complaint was not untimely because the statute of limitations was tolled since the decedent filed his original complaint within two years of discovering his injury, and (2) that defendants should be estopped from asserting the statute of limitations because the decedent reasonably relied on defendants' misrepresentations, which delayed his discovery of his injury. For the following reasons, we affirm the judgment of the trial court.

¶ 20 I. Statute of Limitations

¶ 21 Plaintiff first argues that, although the original complaint was not filed within two years of the decedent's injury, the complaint was timely filed since the decedent did not discover his injury until he consulted a new attorney in 2014, approximately three years after the settlement. Defendants argue that the facts indicate that the decedent knew, or should have known, that his settlement was insufficient at the time of the settlement agreement, and that the statute of limitations was not tolled as a result. For the following reasons, we affirm the trial court's dismissal of plaintiff's first amended complaint.

¶ 22 Section 2-619(a)(5) provides that a defendant may file a motion for dismissal when an action has not been commenced within the time limited by law ( 735 ILCS 5/2-619(a)(5) (West 2014) ). Section 2-619 is designed to afford litigants a means to dispose of issues of law and easily proven issues of fact at the onset of litigation. Turner v. 1212 S. Michigan Partnership , 355 Ill.App.3d 885, 891, 291 Ill.Dec. 476, 823 N.E.2d 1062 (2005). A motion to dismiss under section 2-619 admits the legal sufficiency of all well-pleaded facts but allows for the dismissal of claims barred by an affirmative matter defeating those claims or avoiding their legal effect. Janda v. United States Cellular Corp. , 2011 IL App (1st) 103552, ¶ 83, 356 Ill.Dec. 329, 961 N.E.2d 425 (citing DeLuna v. Burciaga , 223 Ill.2d 49, 59, 306 Ill.Dec. 136, 857 N.E.2d 229 (2006) ). The failure to act within the time provided by law is an affirmative matter, and "[w]here the affirmative matter asserted is apparent on the face of a pleading, no affidavit is required to support a section 2-619 motion." Asset Acceptance, LLC v. Tyler , 2012 IL App (1st) 093559, ¶¶ 23-24, 359 Ill.Dec. 351, 966 N.E.2d 1039 (citing Sierens v. Clausen , 60 Ill.2d 585, 588, 328 N.E.2d 559 (1975) ). "[I]n ruling on a section 2-619 motion, where the facts are undisputed and only one conclusion is evident, the court may determine the date of the commencement of the statute of limitations as a matter of law." Goran v. Glieberman , 276 Ill.App.3d 590, 596, 213 Ill.Dec. 426, 659 N.E.2d 56 (1995) (citing Hermitage Corp. v. Contractors Adjustment Co. , 166 Ill.2d 72, 85, 209 Ill.Dec. 684, 651 N.E.2d 1132 (1995) ).

¶ 23 When ruling on a section 2-619 motion to dismiss, a trial court must interpret all pleadings, affidavits, and other supporting documents in the light most favorable to the nonmoving party. Caywood v. Gossett , 382 Ill.App.3d 124, 128, 320 Ill.Dec. 542, 887 N.E.2d 686 (2008). The defendant has the initial burden of proving the affirmative defense relied upon in its motion to dismiss. Kirby v. Jarrett , 190 Ill.App.3d 8, 12, 137 Ill.Dec. 204, 545 N.E.2d 965 (1989) (explaining that a defendant raising a statute of limitations defense in a motion to dismiss bears the initial burden of demonstrating that the action in question was not commenced within the applicable limitation period). Once the defendant, however, has met this burden, it becomes incumbent upon the plaintiff to set forth facts sufficient to avoid the statutory limitation. Cundiff v. Unsicker , 118 Ill.App.3d 268, 272, 73 Ill.Dec. 840, 454 N.E.2d 1089 (1983) ; Blair v. Blondis , 160 Ill.App.3d 184, 188, 111 Ill.Dec. 911, 513 N.E.2d 157 (1987) (explaining that a plaintiff seeking to come within the discovery rule exception to the limitations period has the burden of proving the date of discovery).

¶ 24 An appeal from a section 2-619 dismissal requires the same analysis as an appeal following a grant of summary judgment; in both instances, "the reviewing court must ascertain 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." Ultsch v. Illinois Municipal Retirement Fund , 226 Ill.2d 169, 178, 314 Ill.Dec. 91, 874 N.E.2d 1 (2007). In making this determination, we apply a de novo standard of review. O'Toole v. Chicago Zoological Society , 2015 IL 118254, ¶ 16, 396 Ill.Dec. 120, 39 N.E.3d 946. Under the de novo standard, we perform the same analysis that a trial court judge would perform. FirstMerit Bank, N.A. v. Soltys , 2015 IL App (1st) 140100, ¶ 13, 390 Ill.Dec. 636, 29 N.E.3d 568.

¶ 25 In the instant case, plaintiff sued defendants for legal practice, claiming that the decedent's settlement of his workers' compensation or occupational diseases case against Nicor was insufficient. Section 13-214.3 of the Code sets forth the statute of limitations for a legal malpractice action and provides that

" '[a]n 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.' " Evanston Insurance Co. v. Riseborough , 2014 IL 114271, ¶ 14, 378 Ill.Dec. 778, 5 N.E.3d 158 (quoting 735 ILCS 5/13-214.3(b) (West 2008) ).

¶ 26 The statute of limitations incorporates the " 'discovery rule,' " which delays the commencement of the two-year statutory period until the injured party "knows or should know facts that would cause him to believe that his injury was wrongfully caused." Romano v. Morrisroe , 326 Ill.App.3d 26, 28, 259 Ill.Dec. 831, 759 N.E.2d 611 (2001). "The limitations period in a legal malpractice case begins to run from the time the injured party knows or reasonably should know that he has suffered an injury which was wrongfully caused." Trogi v. Diabri & Vicari, P.C. , 362 Ill.App.3d 93, 98, 298 Ill.Dec. 230, 839 N.E.2d 553 (2005). "Although that time is normally a question of fact, a court may decide the issue as a matter of law where the facts are undisputed and only one conclusion may be drawn from them." Trogi , 362 Ill.App.3d at 98, 298 Ill.Dec. 230, 839 N.E.2d 553. The statute of limitations does not require that the injured party acquire actual knowledge of negligent conduct before; rather, the statutory period will begin once an injured party has a reasonable belief that the injury was caused by wrongful conduct thereby creating an obligation to inquire further on that issue. Dancor International, Ltd. v. Friedman, Goldberg & Mintz , 288 Ill.App.3d 666, 673, 224 Ill.Dec. 302, 681 N.E.2d 617 (1997). It is not required that plaintiff knew or should have known of both the injury and negligent conduct since such a standard is beyond the comprehension of the ordinary lay person to recognize and assume a conclusion that must await legal determination. Dancor International , 288 Ill.App.3d at 673, 224 Ill.Dec. 302, 681 N.E.2d 617 (citing Nolan v. Johns-Manville Asbestos , 85 Ill.2d 161, 170-71, 52 Ill.Dec. 1, 421 N.E.2d 864 (1981) ). "A person knows or reasonably should know an injury is 'wrongfully caused' when he or she possesses sufficient information concerning an injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved." Carlson v. Fish , 2015 IL App (1st) 140526, ¶ 23, 391 Ill.Dec. 728, 31 N.E.3d 404. Once a party knows, or reasonably should know, both of his injury and that the injury was wrongfully caused, the injured person has the burden to inquire further as to the existence of a cause of action. Castello v. Kalis , 352 Ill.App.3d 736, 745, 287 Ill.Dec. 815, 816 N.E.2d 782 (2004). "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." Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd. , 216 Ill.2d 294, 306, 297 Ill.Dec. 319, 837 N.E.2d 99 (2005).

¶ 27 In the instant case, the decedent sued the Daniels and Marks defendants for their handling of his workers' compensation or occupational diseases case, which resulted in a settlement that was approved by an arbitrator on October 25, 2011. The settlement's final approval marked the end of the decedent's case against Nicor, including all claims for temporary total disability benefits and unpaid medical expenses. At that point, the decedent's alleged injury accrued, and we cannot say that the decedent did not know, or should not have known, that the settlement was inadequate. At the time of the settlement, the decedent had not been working for nearly eight years, during which time he had received only 11 weeks of extended benefit account payments and no temporary total disability benefits at all. Under the Workers' Compensation Act or the Workers' Occupational Diseases Act, an employee injured or exposed to a dangerous chemical during the course and scope of their employment would be entitled to weekly temporary total disability benefits and medical expenses, and a lawyer can obtain those payments by the filing of a section 19(b-1) and section 8(a) petition. 820 ILCS 305/8(a), 19(b-1) (West 2006).

¶ 28 The decedent claimed in his complaint that, due to his loss of income, he did not have enough money to pay for his medical treatment and family expenses. Before he took a leave of absence, the decedent earned a salary of more than $100,000 per year with an average weekly wage of $1800. The settlement, however, paid only one lump sum of $125,000, of which the decedent received $98,291.55. The settlement order stated that the payout to the decedent, when factoring in his remaining life expectancy of 28 years, would result in the equivalent of $67.51 per week for the rest of his life. It was clear in the settlement order that the decedent was receiving an amount of money that was less than 1 year of his previous Nicor salary to compensate him for nearly 8 years of back pay and 28 years of future income and disability that he was claiming he was entitled to, including unpaid medical expenses.

¶ 29 Moreover, plaintiff claimed that the decedent knew that Nicor had a practice of prolonging workers' compensation and occupational diseases cases in order to force its employees to settle for less money than they should have received. Also, despite defendants' assurances that he did not need to worry about temporary total disability benefits and that he would be compensated at the conclusion of his case, the decedent knew at the time of the settlement that he would not receive any temporary total disability benefits since the settlement order stated that the settlement covered all claims for recovery by the decedent against Nicor, including any unpaid temporary total disability benefits. The order also stated that it was "disputed" whether the decedent was ever temporarily totally disabled, which would have indicated to the decedent that his claim for temporary total disability benefits was unresolved before the settlement. Plaintiff also claimed the decedent had discussions with defendant Daniels after the settlement, to which defendant Daniels had to "reassure" the decedent that he would receive additional compensation in the whistleblower lawsuit to compensate for his injuries. As a result, the decedent knew, or should have known, of his injury at the time the settlement order was entered since he was agreeing to accept a sum of money that was substantially less than what he should have received as reasonable compensation after considering his previous salary of over $100,000 and that nearly eight years that had lapsed since he was working, during which he received only 11 weeks of extended benefit account payments. As a result, the decedent had until October 25, 2013, to file his legal malpractice complaint, which he did not actually file until 13 months later on December 30, 2014. As a result, the trial court did not err when it granted the defendants' motion to dismiss.

¶ 30 Plaintiff argues that the decedent did not know of his injury because he relied on defendant Daniels's assurances on multiple occasions after the settlement that he would receive additional compensation for his injuries from the whistleblower case and that the decedent believed that defendant Daniels was protecting his interest in "both litigations." Plaintiff also argues that the decedent did not in fact discover his injury until he consulted a new attorney in 2014 concerning defendants' handling of the whistleblower case, where he learned that the workers' compensation and/or occupational diseases settlement was far below what he should have received, that he was in fact eligible for temporary total disability benefits, and that defendants Marks and Daniels mishandled his case. However, all these facts were apparent to the decedent at the time of the settlement or at least he should have known that something was wrong and investigated defendants' handling of his case.

¶ 31 Further, the assurances by defendant Daniels concerning further compensation related to the whistleblower case only. At that point in time, the workers' compensation or occupational diseases case was over and the decedent was aware of the outcome; the fact that he expected more money in a different lawsuit had little bearing on the professional negligence that may have occurred in the prior action. Also, "[t]he discovery rule may be employed where 'uncertainty exists as to the fact of damage' but not where uncertainty exists only as to the amount of damage." Belden v. Emmerman , 203 Ill.App.3d 265, 270, 148 Ill.Dec. 583, 560 N.E.2d 1180 (1990) (quoting Jackson Jordan, Inc. v. Leydig, Voit & Mayer , 199 Ill.App.3d 728, 734, 145 Ill.Dec. 755, 557 N.E.2d 525 (1990), rev'd , 158 Ill.2d 240, 198 Ill.Dec. 786, 633 N.E.2d 627 (1994) ). At the time of the settlement, the decedent was depending on receiving additional compensation in the whistleblower lawsuit, but whether he would ultimately receive that extra money would only mitigate the damage that occurred from the insufficient settlement. The fact that the decedent was damaged by the insufficient settlement was known as soon as the settlement was approved, but the uncertainty of additional funds from another lawsuit would have only lessened the amount of damage caused by the insufficient settlement.

¶ 32 Plaintiff heavily relies on Trogi , 362 Ill.App.3d 93, 298 Ill.Dec. 230, 839 N.E.2d 553, to support his claim that the complaint was timely. In Trogi , the plaintiff client hired the defendant attorney to represent him in the purchase of real estate from his daughter. Trogi , 362 Ill.App.3d at 94, 298 Ill.Dec. 230, 839 N.E.2d 553. The attorney told the plaintiff that the deed was recorded in Lake County and mailed him a copy; however, the deed should have been recorded in Cook County. Trogi , 362 Ill.App.3d at 94, 298 Ill.Dec. 230, 839 N.E.2d 553. Five years later, the daughter sold her interest in the property to a third party, and that deed was recorded in Cook County. Trogi , 362 Ill.App.3d at 94, 298 Ill.Dec. 230, 839 N.E.2d 553. Since the attorney did not properly record the initial deed, the plaintiff's interest did not appear in the title search, which resulted in the loss of the plaintiff's interest in the property. Trogi , 362 Ill.App.3d at 94-95, 298 Ill.Dec. 230, 839 N.E.2d 553. The plaintiff sued the defendant attorney for legal malpractice, but the trial court dismissed the case, finding that the complaint was not filed within the two-year statute of limitations. Trogi , 362 Ill.App.3d at 94-95, 298 Ill.Dec. 230, 839 N.E.2d 553. On appeal, the appellate court reversed, finding that plaintiff did not become aware of the recording error until the deed was conveyed to the third party. Trogi , 362 Ill.App.3d at 98-99, 298 Ill.Dec. 230, 839 N.E.2d 553. The appellate court found that, even if the plaintiff had noticed where the deed was recorded, that fact did "not lead to the conclusion that a layperson who hired an attorney to represent him in a real estate transaction knew or understood the recording requirements or implications." Trogi , 362 Ill.App.3d at 99, 298 Ill.Dec. 230, 839 N.E.2d 553.

¶ 33 In the instant case, plaintiff argues that the decedent likewise relied on the advice of his attorneys and that, since he was a lay person, he could not have been expected to know what the requirements for receiving temporary total disability payments were, what a reasonable settlement amount would be, or whether he could have received more money by taking the case to a hearing. However, Trogi is distinguishable because, in that case, the plaintiff was not expected to understand the complex deed recording process. Here, the deficiency of the settlement amount was obvious to even a lay person at the time of the settlement just considering the bottom line-that the decedent was receiving less than one years' worth of his previous salary to compensate him for nearly eight years of back pay, medical expenses, and permanent disability. Therefore, the decedent, even if he lacked legal expertise, was aware that his settlement amount was insufficient, which would have at least put him on notice to investigate whether his attorneys were negligent. As a result, the statute of limitations was not tolled since the decedent was aware of his injury at the time the settlement order was entered, and the trial court did not err when it dismissed the legal malpractice complaint as untimely.

¶ 34 II. Equitable Estoppel

¶ 35 Plaintiff argues in the alternative that defendants should be estopped from asserting the statute of limitations under a theory of equitable estoppel or fraudulent concealment because the decedent reasonably relied on defendants' misrepresentations, which delayed his discovery of his injury. For the following reasons, we affirm the judgment of the trial court.

¶ 36 A defendant is estopped from asserting the limitations bar if the plaintiff's failure to act within the statutory period results from reasonable reliance on the defendant's conduct or representations. Witherell v. Weimer , 118 Ill.2d 321, 330, 113 Ill.Dec. 259, 515 N.E.2d 68 (1987). "To establish equitable estoppel, the party claiming estoppel must demonstrate that: (1) the other party misrepresented or concealed material facts; (2) the other party knew at the time the representations were made that the representations were untrue; (3) the party claiming estoppel did not know that the representations were untrue when they were made and when they were acted upon; (4) the other party intended or reasonably expected the representations to be acted upon by the party claiming estoppel or by the public generally; (5) the party claiming estoppel reasonably relied upon the representations in good faith to his or her detriment; and (6) the party claiming estoppel has been prejudiced by his or her reliance on the representations." In re Parentage of Scarlett Z.-D. , 2015 IL 117904, ¶ 25, 390 Ill.Dec. 123, 28 N.E.3d 776 (citing Parks v. Kownacki , 193 Ill.2d 164, 180, 249 Ill.Dec. 897, 737 N.E.2d 287 (2000) ). " ' "[I]t is not necessary that the defendant intentionally mislead or deceive the plaintiff, or even intend by its conduct to induce delay. [Citations.] Rather, all that is necessary for invocation of the doctrine of equitable estoppel is that the plaintiff reasonably rely on the defendant's conduct or representations in forbearing suit." ' " Jackson Jordan, Inc. v. Leydig, Voit & Mayer , 158 Ill.2d 240, 252, 198 Ill.Dec. 786, 633 N.E.2d 627 (1994) (quoting Witherell v. Weimer , 85 Ill.2d 146, 159, 52 Ill.Dec. 6, 421 N.E.2d 869 (1981), quoting Bomba v. W.L. Belvidere, Inc. , 579 F.2d 1067, 1071 (7th Cir. 1978)).

¶ 37 Under the fraudulent concealment doctrine, the statute of limitations will be tolled if a plaintiff pleads and proves that fraud prevented discovery of a cause of action, and if so, a plaintiff can commence his or her suit at any time within five years after he or she discovers a cause of action. Carlson , 2015 IL App (1st) 140526, ¶ 44, 391 Ill.Dec. 728, 31 N.E.3d 404 (citing Clay v. Kuhl , 189 Ill.2d 603, 613, 244 Ill.Dec. 918, 727 N.E.2d 217 (2000) ; 735 ILCS 5/13-215 (West 2014) ). "As a general matter, one alleging fraudulent concealment must ' "show affirmative acts by the fiduciary designed to prevent the discovery of the action." ' " Carlson , 2015 IL App (1st) 140526, ¶ 44, 391 Ill.Dec. 728, 31 N.E.3d 404 (quoting Clay , 189 Ill.2d at 613, 244 Ill.Dec. 918, 727 N.E.2d 217, quoting Hagney v. Lopeman , 147 Ill.2d 458, 463, 168 Ill.Dec. 829, 590 N.E.2d 466 (1992) ). A plaintiff must show " 'affirmative acts or representations [by a defendant] that are calculated to lull or induce a claimant into delaying filing his [or her] claim or to prevent a claimant from discovering his [or her] claim.' " Carlson , 2015 IL App (1st) 140526, ¶ 44, 391 Ill.Dec. 728, 31 N.E.3d 404 (quoting Barratt v. Goldberg , 296 Ill.App.3d 252, 257, 230 Ill.Dec. 635, 694 N.E.2d 604 (1998) ).

¶ 38 However, it is well-established that the basis of a legal malpractice action also cannot constitute the grounds for equitable estoppel; there must be some misrepresentation by the defendant that the plaintiff relied on to his or her detriment to prevent the filing of a legal malpractice action. Koczor v. Melnyk , 407 Ill.App.3d 994, 1000, 348 Ill.Dec. 392, 944 N.E.2d 345 (2011) (citing Barratt , 296 Ill.App.3d at 257-58, 230 Ill.Dec. 635, 694 N.E.2d 604 ("the allegedly fraudulent statements or omissions that form the basis of the cause of action may not constitute the fraudulent concealment in the absence of a showing that they tend to conceal the cause of action"). In the instant case, none of defendants' assurances or representations to the decedent that plaintiff claims constituted legal practice may be used as grounds to estop defendants from asserting the statute of limitations bar in the instant case. Here, plaintiff claims that defendants Daniels and Marks committed malpractice when they told the decedent that his workers' compensation or occupational diseases case was progressing and then urged him to accept Nicor's settlement offer, arguing that it was a good offer and that he would receive additional money through the separate whistleblower case. Since plaintiff argues that those assurances are a part of a course of defendants' conduct that amounted to legal malpractice, plaintiff cannot point to those same assurances as grounds for estoppel. See Koczor , 407 Ill.App.3d at 1000, 348 Ill.Dec. 392, 944 N.E.2d 345.

¶ 39 Moreover, plaintiff also points to one type of assurance after the settlement in which decedent claims that defendant Daniels continued to reassure the decedent on multiple occasions that he would receive money in the whistleblower case in addition to the money he received in the workers' compensation and occupational diseases settlement. First, those assurances are nearly identical to the presettlement assurances of additional compensation in the whistleblower case that plaintiff argues were a part of defendants' mishandling of the decedent's workers' compensation or occupational diseases case, and plaintiff cannot assert those assurances to estop defendants from asserting the statute of limitations. Second, as stated, those assurances are related to a separate lawsuit and have no bearing on the outcome of the workers' compensation or occupational diseases case. At the time defendant Daniels made those assurances, the damage from the insufficient settlement was obvious, and the promise of future compensation from another source did not conceal or misrepresent the fact that the settlement amount was far below what the decedent should have received. Plaintiff does not point to any statements made by defendants to the decedent that misrepresented or concealed material facts that prevented his discovery of his cause of action for his attorneys' mishandling of his workers' compensation or occupational diseases case.

¶ 40 Plaintiff relies on DeLuna , 223 Ill.2d 49, 306 Ill.Dec. 136, 857 N.E.2d 229, where the plaintiffs, who did not speak English and relied in good faith on their attorney's reassurances, claimed that their attorney failed to reveal material facts; misled them by twice telling them their case was going well when it had, in fact, been dismissed; and failed to disclose facts bearing on the procedural status of the case. DeLuna , 223 Ill.2d at 79-80, 306 Ill.Dec. 136, 857 N.E.2d 229. The Illinois Supreme Court found that the plaintiff's allegations that their attorney twice misrepresented the status of their case after it had been dismissed were sufficient to meet the pleading requirements for fraudulent concealment. DeLuna , 223 Ill.2d at 81, 306 Ill.Dec. 136, 857 N.E.2d 229. However, this case is factually distinguishable from the instant case since plaintiff does not allege any assurances that defendants made to the decedent after the settlement that explicitly misrepresented or concealed material facts concerning the workers' compensation or occupational diseases case.

¶ 41 Plaintiff also relies on Jackson Jordan , 158 Ill.2d 240, 198 Ill.Dec. 786, 633 N.E.2d 627, where the defendant law firm did not advise the plaintiff client of a patent held by a third party in 1973. Jackson Jordan , 158 Ill.2d at 244, 198 Ill.Dec. 786, 633 N.E.2d 627. In 1975, the third party sued to enforce its preexisting patent, and the law firm unsuccessfully attempted to invalidate the third-party's patent over the next 12 years ( Jackson Jordan , 158 Ill.2d at 244-47, 198 Ill.Dec. 786, 633 N.E.2d 627 ), during which time the law firm repeatedly and incorrectly reassured the client that it would prevail ( Jackson Jordan , 158 Ill.2d at 252-53, 198 Ill.Dec. 786, 633 N.E.2d 627 ). The Illinois Supreme Court found that the law firm was equitably estopped from asserting the statute of limitations when the client sued in 1988 for the negligent advice it provided in 1973. Jackson Jordan , 158 Ill.2d at 253, 198 Ill.Dec. 786, 633 N.E.2d 627. Again, this case is distinguishable from the instant case since plaintiff has not pointed to any assurances that defendants made to the decedent after the settlement that explicitly misrepresented or concealed material facts concerning the workers' compensation or occupational diseases case. Whereas defendant Daniels may have assured the decedent that he would receive additional compensation in the whistleblower lawsuit, that did not conceal or misrepresent the plainly obvious fact that the amount of money the decedent received in the settlement was far below what he should have received.

¶ 42 As a result, defendants were not estopped from asserting the statute of limitations, and the trial court did not err when it dismissed plaintiff's legal malpractice lawsuit as untimely.

¶ 43 CONCLUSION

¶ 44 For the foregoing reasons, we affirm the judgment of the trial court. The trial court did not err when it granted defendants' section 2-619(a)(9) motion to dismiss plaintiff's legal malpractice lawsuit with prejudice since the decedent did not file his original complaint within the two-year statute of limitations governing legal malpractice actions. 735 ILCS 5/13-214.3 (West 2014).

¶ 45 Affirmed.

Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.

      Plaintiff also alleged a separate count of legal malpractice against attorneys Richard D. Grossman and Agnes E. Grossman and the Law Offices of Richard D. Grossman (collectively, Grossman defendants) for their handling of a separate related lawsuit, but that count is not at issue in this appeal.

      Bruce Brummel passed away on June 3, 2015, during the pendency of his legal malpractice lawsuit. The trial court substituted Maria Brummel, the executor of his estate, as plaintiff on October 6, 2015.

      The complaint filed in this matter refers to the action as a workers' compensation claim. On claims filed at the Illinois Workers' Compensation Commission, the employees have the option to file their claim under the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2006) ) or the Workers' Occupational Diseases Act (820 ILCS 310/1 et seq. (West 2006) ) or both. The application for adjustment of claim form filed in this matter is not contained in the record of this case, so we do not know what act the decedent filed under. The briefs filed in this matter state that the claim that was filed here was under the Workers' Compensation Act, but we will assume it was under the Occupation Disease Act or both.

      The decedent's job titles do not appear in the record on appeal.