First District affirms dismissal of legal malpractice suit

By Jonathan Bilyk | Sep 6, 2013

A man who claimed legal malpractice led him to pay tens of thousands of dollars in child support cannot sue his former attorneys because he did not bring his action within the time allowed by law, an appeals court panel held.

In an unpublished order filed Aug. 30, a panel of the First District Appellate Court upheld Cook County Circuit Judge James N. O’Hara's ruling in favor of Robert Badesch, an attorney with Badesch Abramovitch in Chicago, and against plaintiff Michael Canfield.

The appellate order was delivered by Justice Nathaniel R. Howse Jr., and Justices Margaret Stanton McBride and William Henry Taylor II concurred.

The case arose from a series of events that transpired between 2006 and 2009 that centered on Canfield’s attempt to modify a joint parenting agreement with his ex-wife.

According to the court's order, Canfield hired Badesch in 2006 to help him modify that agreement. At that time, Canfield’s agreement with his ex-wife did not require him to pay child support, and he received assurances from Badesch that the modification attempt would not change that.

However, in 2008 and 2009, courts delivered four orders against Canfield, ordering him to pay $173 a month in child support, as well as $22,000 more for unpaid child support and $19,000 to cover his ex-wife’s legal costs.

The adverse orders were all issued because Canfield, through his attorneys, did not comply with discovery orders.

Following the adverse orders, the last of which was entered Feb. 6, 2009, the Badesch firm agreed to pay Canfield $10,000, and offered to pay half of the legal costs Canfield had been ordered to pay.

After receiving the $10,000 payment, Canfield terminated his relationship with the Badesch firm on July 14, 2009.

Later that month, Canfield met with a different lawyer, who advised him that he may have suffered legal malpractice at the hands of his previous lawyers.

Canfield, however, waited nearly two years --until July 15, 2011 -- to file a legal malpractice claim against Badesch.

Badesch asked the circuit court to dismiss the action, asserting that Canfield did not file within the two year limit, as specified by state law.

The trial judge agreed with Badesch and, on March 30, 2012, dismissed Canfield’s suit, saying the clock began running on the statute of limitations with regard to Canfield’s claim on Feb. 6, 2009.

Canfield appealed, arguing that the trial court selected the wrong date from which to begin calculating the statute of limitations. He argued the two-year countdown should have started on July 27, 2009, when he learned from his new lawyer of the possible malpractice.

The appellate court, however, backed the trial judge’s decision, determining that Canfield should have recognized earlier in 2009 that he may have suffered legal malpractice.

Howse noted in his order that Feb. 6, 2009, was a reasonable date from which to begin calculating the statute of limitations, as Illinois case law has held that the two-year time limit generally begins at the time the most recent adverse judgment was entered.

Howse also noted in the panel's order that Canfield should have recognized signs of malpractice by that time as he had already suffered several adverse orders, including an order for more than $20,000 in back child support, despite the lawyers’ assurances that this would not happen.

He further wrote that the Badesch firm’s offer to pay $10,000, plus more in the future, “admitting that they had done something wrong, or at a minimum, making it clear that plaintiff should have inquired into defendants’ behavior.”

The justices recognized that the court could have determined July 14, 2009, as the date on which to start the limitations countdown, but even by that standard, Canfield had filed his malpractice claim too late, Howse wrote.

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