DeLuna v. Burciaga

Docket No. 101428.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

_______________________

SONIA DeLUNA et al., Appellee and Cross-Appellant, v. ELOY

BURCIAGA et al. (Eloy Burciaga, Appellant and Cross-

Appellee).

Opinion filed October 5, 2006.

JUSTICE KARMEIER delivered the judgment of the court,

with opinion.

Justices Freeman, Fitzgerald, Kilbride, and Garman

concurred in the judgment and opinion.

Chief Justice Thomas and Justice Burke took no part in the

decision.

OPINION

Plaintiffs, Sonia DeLuna, Susanna DeLuna, Griselda

DeLuna, and Oscar DeLuna, filed a legal malpractice action in

the circuit court of Cook County against defendants, Eloy

Burciaga, Barbara Clinite, and Michael Rathsack. Defendants

moved to dismiss plaintiffs= fourth amended complaint, arguing

that plaintiffs= suit was foreclosed by the applicable statute of

repose. The circuit court granted defendants= motions, ruling,

inter alia, that plaintiffs had failed to adequately allege

fraudulent concealment of the cause of action, or equitable

estoppel, and, in the absence of such allegations, the statute of

repose barred the action. The appellate court reversed the

dismissal of plaintiffs= complaint and remanded for further

proceedings, finding that the statute of repose would have

barred the action, but the allegations of plaintiffs= complaint

were sufficient, if proven, to invoke statutory provisions

pertaining to fraudulent concealment and general principles of

equitable estoppel. 359 Ill. App. 3d 544. We allowed defendant

Burciaga=s petition for leave to appeal (177 Ill. 2d R. 315), and

now we reverse the appellate court in part, affirm in part, and

remand this cause to the circuit court for further proceedings

consistent with this opinion.

STATUTES INVOLVED

Section 13B214.3 of the Code of Civil Procedure (Code)

provides in pertinent part:

A(b) An action for damages based on tort, contract,

or otherwise (i) against an attorney arising out of an act

or omission in the performance of professional services

*** must be commenced within 2 years from the time the

person bringing the action knew or reasonably should

have known of the injury for which damages are sought.

(c) [A]n action described in subsection (b) may not

be commenced in any event more than 6 years after the

date on which the act or omission occurred.

***

(e) If the person entitled to bring the action is under

the age of majority or under other legal disability at the

time the cause of action accrues, the period of

-2-

limitations shall not begin to run until majority is attained

or the disability is removed.@ 735 ILCS 5/13B214.3

(West 2000).

Section 13B215 of the Code states as follows:

AIf a person liable to an action fraudulently conceals

the cause of such action from the knowledge of the

person entitled thereto, the action may be commenced

at any time within 5 years after the person entitled to

bring the same discovers that he or she has such cause

of action, and not afterwards.@ 735 ILCS 5/13B215

(West 2000).

BACKGROUND

The factual allegations and procedural history of this case

are set forth fully in the appellate court=s opinion (359 Ill. App.

3d 544), and will be recited hereafter only as necessary to

facilitate an understanding of the issues before the court.

Plaintiffs= mother, Alicia DeLuna, underwent back surgery

on April 7, 1986. During that surgery, Dr. Michael Treister

allegedly cut through Alicia=s left iliac artery, causing severe

bleeding and loss of blood pressure. Alicia died the following

day.

Alicia=s husband, Guadalupe DeLuna, retained Eloy

Burciaga in April of 1986 to pursue a medical malpractice

action, and incorporated claims, arising from Alicia=s death.

Burciaga asked attorney Barbara Clinite to assist him.

Burciaga, however, was the attorney who communicated

directly with the DeLunas, because only Burciaga spoke fluent

Spanish. On April 16, 1986, Burciaga and Clinite filed a lawsuit

against Dr. Treister and St. Elizabeth=s Hospital on behalf of

Guadalupe DeLuna acting as the administrator of his wife=s

estate. Burciaga deliberately filed the lawsuit without attaching

an affidavit from a reviewing health-care professional, as

required by section 2B622 of the Code (Ill. Rev. Stat. 1985, ch.

110, par. 2B622), because he wanted to test the

constitutionality of that requirement. Burciaga did not inform

plaintiffs that he was filing the complaint without the required

affidavit. The suit against the hospital was dismissed in

-3-

October of 1986; Triester=s motion to dismiss with prejudice

was granted in February of 1987. The failure to attach a

section 2B622 affidavit was the basis for dismissal in both

instances.

Attorney Michael Rathsack assisted Burciaga and Clinite in

the ensuing appeal. In that appeal, the appellate court reversed

the dismissal, holding that section 2B622 was unconstitutional.

DeLuna v. St. Elizabeth=s Hospital, 184 Ill. App. 3d 802 (1989).

However, on February 20, 1992, this court reversed the

appellate court, upholding the constitutionality of section

2B622. DeLuna v. St. Elizabeth=s Hospital, 147 Ill. 2d 57

(1992).

In the spring of 1992, after this court had upheld the

constitutionality of section 2B622 and the dismissal of plaintiffs=

action, and as the deadline of the legal malpractice statute of

repose approached, Burciaga met with the DeLunas and

assured them that their medical malpractice case was Agoing

very well.@

In November of 1993, Burciaga and Rathsack filed a new

lawsuit, this time with the appropriate affidavit attached.

However, the circuit court dismissed the cause of action

against Treister on the basis of res judicata and the suit against

St. Elizabeth=s on grounds of respondeat superior. In

November of 1996, the appellate court reversed the dismissals.

DeLuna v. Treister, 286 Ill. App. 3d 25 (1996). On February 19,

1999, this court affirmed the dismissal of the suit against

Treister, but reversed the dismissal of the claim against St.

Elizabeth=s, and remanded that cause for further proceedings.

DeLuna v. Treister, 185 Ill. 2d 565 (1999). DeLuna=s estate

ultimately settled with St. Elizabeth=s Hospital in the fall of

2000.

On February 20, 2001, plaintiffs brought this legal

malpractice action, eventually filing a fourth amended

complaint against Burciaga, Rathsack, and Clinite. Defendants

moved to dismiss, pursuant to section 2B619 of the Code (735

ILCS 5/2B619 (West 2000)), arguing that plaintiffs= action had

been filed beyond the time limitation set forth in the legal

malpractice statute of repose. See 735 ILCS 5/13B214.3(c)

(West 2000) (six-year statute of repose). The circuit court

-4-

granted the defendants= motions to dismiss, finding that

plaintiffs had failed to adequately allege a joint venture,

fraudulent concealment, or equitable estoppel, and in the

absence of such allegations, the statute of repose barred the

action. Rathsack and Clinite subsequently settled with plaintiffs,

leaving Burciaga as the only party-defendant in the ensuing

appeal.

On appeal, plaintiffs argued, inter alia, that the trial court

erred in dismissing their legal malpractice action because (1)

section 13B214.3(e) of the Code tolled the repose period for

two of the plaintiffs (Sonia and Susanna) during their minority;

and (2) Burciaga had fraudulently concealed his conduct,

thereby tolling the start of the repose period and estopping him

from raising the statute of repose as a defense. The appellate

court rejected plaintiffs= first contention, but accepted the

second.

The court first held that the tolling provision contained in

subsection (e) of section 13B214.3 did not toll the statutory

period of repose set forth in subsection (c). Noting that Athe

terms >statute of limitations= and >statute of repose= are not

interchangeable,@ the court stated that subsection (e)

Aexpressly tolled@ only the Aperiod of limitations,@ which the

appellate court interpreted as a reference solely to the statutory

period set forth in subsection (b) of section 13B214.3. 359 Ill.

App. 3d at 550. Because the court believed that the phrase

Aperiod of limitations,@ in the context of subsection (e), is not

ambiguous, the court declined the plaintiffs= request to consider

cases construing the pre-1987 version of the medical

malpractice statute of limitations and repose (Ill. Rev. Stat.

1985, ch. 110, par. 13B212), which contained language similar

to section 13B214.3(e) of the Code. The appellate court

acknowledged that courts construing that language had Aheld

that the statute of limitations and the statute of repose for

medical malpractice actions were tolled until the minor turned

the age of 18.@ 359 Ill. App. 3d at 550. Nonetheless, since the

appellate court found no ambiguity in the legislature=s use of

the phrase Aperiod of limitations@ in section 13B214.3(e), it

rejected Aplaintiffs= reliance on the rule of in pari materia [as]

unavailing.@ 359 Ill. App. 3d at 550.

-5-

The court, however, determined that plaintiffs had

sufficiently pled fraudulent concealment and equitable

estoppel, and thus Burciaga=s conduct precluded him from

invoking the statute of repose to bar the action. The court held

that Burciaga, as a fiduciary, had Aa duty to reveal the facts

giving rise to the cause of action and that his silence when he

ought to speak, or his failure to disclose what he ought to

disclose, is as much a fraud at law as an affirmative false

representation or act.@ 359 Ill. App. 3d at 551, citing Chicago

Park District v. Kenroy, Inc., 78 Ill. 2d 555, 562 (1980). Though

the appellate court believed that Burciaga=s failure to disclose

the true state of affairs would have been sufficient, alone, to

invoke the provisions of section 13B215, the court noted that

Burciaga had Aaffirmatively misled [plaintiffs] in the spring of

1992 by telling them that their case was >going very well= @

when in fact the trial court had dismissed their medical

malpractice action and this court had affirmed the dismissal in

February of 1992. 359 Ill. App. 3d at 551. Thus, the court held

that plaintiff had sufficiently alleged Burciaga=s fraudulent

concealment of plaintiffs= legal malpractice claim.

Moreover, the court determined that plaintiffs= allegations

were adequate to support the application of principles of

equitable estoppel as well, holding that the allegations of

plaintiffs= complaint indicated plaintiffs had Areasonably relied

on Mr. Burciaga=s conduct and representation that their

medical malpractice suit was going well in forbearing suit until

the year 2000.@ 359 Ill. App. 3d at 552-54. The court noted

plaintiffs= averments that: (1) Burciaga handled all

communications with plaintiffs, since only he spoke Spanish,

and therefore only he could communicate directly with the

plaintiffs; (2) Burciaga conducted meetings with plaintiffs in

1989, the spring of 1992, and the summer of 1997, and in each

of those meetings he told the plaintiffs that their case was

Agoing very well@; (3) in the 1997 meeting, Burciaga told the

plaintiffs that there was no need for him to be in more frequent

contact with them about the case and that the frequency of his

contacts was adequate; (4) Burciaga never told the plaintiffs in

any of those meetings that their medical malpractice case had

been filed without the section 2B622 affidavit, that the trial court

-6-

had dismissed their medical malpractice action due to the

absence of the affidavit, and that the supreme court, in

February of 1992, had held that section 2B622 was

constitutional and had affirmed the dismissal of their medical

malpractice action; and (5) plaintiffs did not learn of these facts

until the year 2000, when Rathsack wrote them an explanatory

letter. 359 Ill. App. 3d at 552.

The court rejected Burciaga=s contention that plaintiffs

should be barred from raising the issues of fraudulent

concealment or equitable estoppel because they could have

discovered the facts allegedly concealed from them, noting that

Burciaga=s conduct was not such as to put plaintiffs on notice

that they should check court files to ascertain the status of their

case. 359 Ill. App. 3d at 554. Therefore, the appellate court

reversed and remanded for further proceedings. 359 Ill. App.

3d at 554.

ANALYSIS

This appeal presents the following issues for review: (1)

whether the statute of repose for legal malpractice is tolled

during a plaintiff=s minority; (2) whether Burciaga waived

arguments that the statute of repose may not be tolled on

grounds of fraudulent concealment or equitable estoppel; (3)

whether the statute of repose for legal malpractice may be

tolled on grounds of fraudulent concealment; (4) whether the

statute of repose for legal malpractice may be tolled on

grounds of equitable estoppel; and (5) whether, if we hold that

the statute of repose for legal malpractice is not tolled for

fraudulent concealment or equitable estoppel, the legal

malpractice statute of repose is rendered unconstitutional. We

begin our analysis with a recitation of general principles of

review and statutory construction.

A motion to dismiss, pursuant to section 2B619 of the Code,

admits the legal sufficiency of the plaintiffs= complaint, but

asserts an affirmative defense or other matter that avoids or

defeats the plaintiffs= claim. Borowiec v. Gateway 2000, Inc.,

209 Ill. 2d 376, 413 (2004). Section 2B619 motions present a

-7-

question of law, and we review rulings thereon de novo.

Borowiec, 209 Ill. 2d at 413.

The construction of a statute is also a question of law,

which we review de novo. In re Estate of Dierkes, 191 Ill. 2d

326, 330 (2000). The primary objective of this court when

construing the meaning of a statute is to ascertain and give

effect to the intent of the legislature. Southern Illinoisan v.

Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006).

The plain language of a statute is the most reliable indication of

the legislature=s objectives in enacting that particular law

(Southern Illinoisan, 218 Ill. 2d at 415), and when the language

of the statute is clear, it must be applied as written without

resort to aids or tools of interpretation.

However, if the language of a statute is ambiguous, courts

may look to tools of interpretation to ascertain the meaning of a

provision. People v. Taylor, 221 Ill. 2d 157, 163 (2006);

Balmoral Racing Club, Inc. v. Topinka, 334 Ill. App. 3d 454,

460 (2002). It is appropriate statutory construction to consider

similar and related enactments, though not strictly in pari

materia. People v. Masterson, 207 Ill. 2d 305, 329 (2003);

Board of Education of City of Chicago v. A, C & S, Inc., 131 Ill.

2d 428, 468 (1989). We must presume that several statutes

relating to the same subject are governed by one spirit and a

single policy, and that the legislature intended the several

statutes to be consistent and harmonious. Masterson, 207 Ill.

2d at 329; People ex rel. Killeen v. Kankakee School District

No. 11, 48 Ill. 2d 419, 422 (1971). Where the intent of the

legislature is otherwise clear, the judiciary possesses the

authority to read language into a statute which has been

omitted through legislative oversight. Masterson, 207 Ill. 2d at

329. A fundamental principle of statutory construction is to view

all provisions of a statutory enactment as a whole. Accordingly,

words and phrases should not be construed in isolation, but

must be interpreted in light of other relevant provisions of the

statute. Southern Illinoisan, 218 Ill. 2d at 415. In construing a

statute, we presume that the legislature, in its enactment of

legislation, did not intend absurdity, inconvenience or injustice.

Southern Illinoisan, 218 Ill. 2d at 415, citing Burger v. Lutheran

General Hospital, 198 Ill. 2d 21, 40 (2001). With these

-8-

principles in mind, we first consider whether the statute of

repose for legal malpractice is tolled during a plaintiff=s minority

pursuant to the provisions of subsection (e) of section

13B214.3 of the Code.

Subsection (e) of section 13B214.3 provides, AIf the person

entitled to bring the action is under the age of majority or under

other legal disability at the time the cause of action accrues,

the period of limitations shall not begin to run until majority is

attained or the disability is removed.@ 735 ILCS 5/13B214.3(e)

(West 2000). The crux of the parties= disagreement on this

issue concerns the construction of the phrase Aperiod of

limitations,@ as employed in subsection (e). Defendant Burciaga

argues that the term unambiguously refers to a Astatute of

limitations,@ and thus tolls only the time period referenced in

subsection (b) of section 13B214.3, not the statutory period of

repose set forth in subsection (c). Plaintiffs contend that the

phrase Aperiod of limitations@ refers to both subsections (b) and

(c) of section 13B214.3, tolling both time periods until plaintiffs

reach the age of majority.

We note, initially, that a statute of repose differs from a

statute of limitations in that a statute of limitations governs the

time within which lawsuits may be commenced after a cause of

action has accrued, while a statute of repose extinguishes the

action itself after a fixed period of time, regardless of when the

action accrued. Ferguson v. McKenzie, 202 Ill. 2d 304, 311

(2001). A statute of repose gives effect to a policy different

from that advanced by a statute of limitations insofar as it is

intended to terminate the possibility of liability after a defined

period of time, regardless of a potential plaintiff=s lack of

knowledge of his or her cause of action. Ferguson, 202 Ill. 2d

at 311. As will appear hereafter, in our discussion of fraudulent

concealment, implementation of the policies underlying these

periods of limitation has not always been logically consistent.

We begin our analysis of subsection (e) of section 13B214.3

with the observation that it is included within article XIII of the

Code of Civil Procedure, an article entitled ALimitations.@

Although the time limitations set forth within that article are

ones we commonly refer to as statutes of Alimitations@ or

Arepose,@ it is noteworthy that the legislature rarely employs

-9-

that precise terminology to distinguish between the two. In

article XIII, only section 13B204 uses the term Arepose@ within

the body of the statute; the only other statute to even mention a

Astatute of repose@ is section 13B213, and that reference is in

the title of the section. The terms Astatute of limitations@ and

Astatute of repose@ do not appear anywhere in section

13B214.3, the section setting forth time limitations on the

prosecution of legal malpractice actions. Since both statutes of

limitations and statutes of repose are addressed under the

semantic umbrella of ALimitations,@ in the context of article XIII,

it would seem that the term Aperiod of limitations,@ as used in

subsection (e) of section 13B214.3, could refer to a Astatute of

limitations,@ a Astatute of repose,@ or it could be a

comprehensive reference to the time limitations set forth in

both subsections (b) and (c) of the statuteBwhat might be

considered a Aperiod of limitations@ in the broadest sense. The

legislature obviously knows the difference between a statute of

limitations and a statute of repose, as those terms are

usedBthough sparinglyBin article XIII. Therefore, the legislature

could have used those terms in subsection (e) to make clear its

intent, or it could have placed a reference to subsection (b) in

subsection (e) if it had meant the latter to apply only to the

former. Either measure would have made plain the legislature=s

intent. It did neither. Thus, we are left to speculate as to the

meaning the legislature attributed to the term Aperiod of

limitations@ in subsection (e) of section 13B214.3.

With that observation, we do not mean to be overly critical

of the legislature, as this court has been guilty of similar literal

laxity. In the seminal case of Anderson v. Wagner, 79 Ill. 2d

295, 322 (1979), this court referred to a statute of repose,

generically, as a Alimitation period@ and a Astatute of

limitations.@ The court did the same thing in Bruso v. Alexian

Brothers Hospital, 178 Ill. 2d 445, 453 (1997). In Bruso, this

court referred to Athe general statute of limitations for medical

malpractice actionsBtwo years from the date of discovery or

four years from the date of the occurrence.@ Bruso, 178 Ill. 2d

at 453. Though this court used the term Astatute of limitations,@

the court was obviously referring to both the statute of

limitations and the general statute of repose. In a subsequent

-10-

sentence, the Bruso court used the term Aextended limitations

period@ to refer to the extended period of repose applicable to

minors. Bruso, 178 Ill. 2d at 453.

Suffice it to say that the unqualified and imprecise use of

terms like Alimitations period@ or Aperiod of limitations,@ when

referring to either a statute of limitations or a statute of repose,

unnecessarily interjects ambiguity into opinions and statutes.

Because the term Aperiod of limitations@ is ambiguous in the

context of section 13B214.3, we look to other tools of

interpretation to ascertain the meaning of subsection (e).

We note, first, the location of subsection (e) within the

overall structure of section 13B214.3. The legislature chose to

place subsection (e), a tolling provision, in a separate

subsection following subsection (b), which contains the statute

of limitations for legal malpractice actions, and subsection (c),

which contains the statute of repose. The location of

subsection (e), within section 13B214.3, is significant for

purposes of statutory construction.

In Bruso, this court sought to ascertain the intent of the

legislature with respect to subsection (c) of section 13B212 of

the Code. Section 13B212 sets forth time limitations on the

filing of medical malpractice actions. Subsection (c) of section

13B212 contains a tolling provision, which states as follows: AIf

the person entitled to bring an action described in this Section

is, at the time the cause of action accrued, under a legal

disability other than being under the age of 18 years, then the

period of limitations does not begin to run until the disability is

removed.@ 735 ILCS 5/13B212(c) (West 1994). This court found

the location of subsection (c) significant in concluding that

subsection (c) tolled a statute of limitations and general statute

of repose set forth in subsection (a) of the statute, as well as a

special statute of repose in subsection (b), applicable only to

minors. In Bruso, this court concluded:

ASubsection (c) is clearly intended to act as an

exception to both subsections (a) and (b). If the

legislature had intended legal disability to be an

exception for adults only, the logical place for that

exception would have been in, or immediately following,

subsection (a). The legislature, however, chose to

-11-

locate the tolling provision for legal disability in a

separate subsection following subsections (a) and (b).@

Bruso, 178 Ill. 2d at 453.

The observation we made in Bruso applies with equal force

in this case. If the legislature had intended subsection (e) of

section 13B214.3 to apply only to the statute of limitations

contained in subsection (b), it could have placed that tolling

provision Ain, or immediately following,@ subsection (b).

However, the legislature chose, instead, to locate the tolling

provision for minors in a separate subsection following

subsections (b) and (c). It is, therefore, reasonable to infer that

it was meant to apply to both.

Moreover, we have previously acknowledged that language

similar to that used in subsection (e) is effective to toll both a

statute of limitations and a statute of repose. Prior to 1987, the

second paragraph of section 13B212 provided:

AIf the person entitled to bring the [medical

malpractice] action is, at the time the cause of action

occurred, under the age of 18 years, or under legal

disability ***, the period of limitations does not begin to

run until the disability is removed.@ (Emphasis added.)

Ill. Rev. Stat. 1985, ch. 110, par. 13B212.

In Antunes v. Sookhakitch, 146 Ill. 2d 477, 489, 491-92 (1992),

and again in Bruso, 178 Ill. 2d at 452-53, 457, this court

acknowledged that the foregoing provision effectively tolled the

statutes of limitations and repose contained in the pre-1987

version of section 13B212. In Antunes, this court cited

legislative history as an indication that the legislature

apparently construed the tolling provision in the same manner.

See Antunes, 146 Ill. 2d at 491-92. The language employed in

subsection (e) of section 13B214.3 is, for all pertinent

purposes, identical to that employed in the pre-1987 version of

section 13B212. There is no discernible justification for

construing subsection (e) differently.

Although the legislature saw fit to amend section 13B212 in

1987, creating an extended statute of repose Awhere the

person entitled to bring the action was, at the time the cause of

action accrued, under the age of 18 years,@ and otherwise

-12-

maintaining a tolling provision for those Aunder legal disability

other than being under the age of 18@ at the time the cause of

action accrued (Ill. Rev. Stat. 1987, ch. 110, pars. 13B212 (b),

(c)), the legislature left the provisions of subsection (e) of

section 13B214.3 unchanged. We are unwilling to assume that

the legislature=s inaction is the result of inadvertence. As we

stated in Bruso, the purpose of tolling provisions for legal

disability is to protect the rights of those who are not competent

to do so themselves. Bruso, 178 Ill. 2d at 454. It has long been

the policy of this state that courts should carefully guard the

rights of minors (Ferguson, 202 Ill. 2d at 313), and that a minor

should not be precluded from enforcing his or her rights unless

clearly barred from doing so (Bruso, 178 Ill. 2d at 454-55).

For the foregoing reasons, we conclude that subsection (e)

of section 13B214.3 tolls the statutes of limitations and repose

set forth in subsections (b) and (c). Therefore, as plaintiffs

contend, the legal malpractice action brought on behalf of

Sonia and Susanna was timely filed. All four plaintiffs were

minors when the alleged malpractice occurred. Oscar was born

on March 31, 1974; Griselda was born on May 15, 1975;

Susanna was born on May 24, 1980; and Sonia was born on

July 3, 1983. Oscar reached the age of 18 years on March 31,

1992, while Griselda, Susanna, and Sonia turned 18 years of

age on May 15, 1993, May 24, 1998, and July 3, 2001,

respectively. Plaintiffs= legal malpractice action was filed on

February 20, 2001. Thus, Sonia had not yet turned 18 when

the action was filed, and it was filed within six years of the date

on which Susanna reached the age of majority. With the

application of the tolling provisions of subsection (e), the

plaintiffs= legal malpractice action was timely filed as to Sonia

and Susanna, but was still untimely as to Oscar and Griselda,

since the action was filed more than six years after they turned

18. Therefore, if Oscar=s and Griselda=s causes of action are to

survive, some other tolling provision or exception must apply,

which brings us to the issue of fraudulent concealment.

As a threshold matter, we acknowledge plaintiffs= argument

that Burciaga has Awaived the contention that section

[13B214.3] impliedly bars a court from applying section

[13B215] and equitable estoppel to lawyers.@ Our review of the

-13-

briefs and the record indicates that these issues were properly

preserved below and have been adequately addressed in the

briefs filed with this court; consequently, we reject plaintiffs=

procedural default argument.

Section 13B215 provides, AIf a person liable to an action

fraudulently conceals the cause of such action from the

knowledge of the person entitled thereto, the action may be

commenced at any time within 5 years after the person entitled

to bring the same discovers that he or she has such cause of

action, and not afterwards.@ 735 ILCS 5/13B215 (West 2000)).

The plain language of section 13B215 refers to Aan action,@

without qualification as to the type of action to which it applies.

In that regard it is like section 13B216 (735 ILCS 5/13B216

(West 2000)), which refers, generically, to Aan action,@

excluding the time during which the commencement of Aan

action@is stayed from Athe time limited for the commencement

of the action.@

Moreover, like section 13B216, the legislature chose to

situate section 13B215 after a series of other

sectionsBcontaining both statutes of limitations and statutes of

reposeBincluding provisions pertaining to actions for medical

malpractice, product liability, acts or omissions in construction

practice, criminal acts, acts or omissions in public accounting,

and legal malpractice. Utilizing the positional analysis

employed in Bruso, it can be inferred that section 13B215

applies to all of the preceding sections. See Bruso, 178 Ill. 2d

at 453. Furthermore, from 1991 until 1996, prior to the time

section 13B214.4 was added to article XIII, section 13B215 was

actually positioned Aimmediately following@ section 13B214.3,

an additional indication that section 13B215 was meant to apply

to section 13B214.3. See Bruso, 178 Ill. 2d at 453 (reasoning if

the legislature had intended a statutory exception to apply to a

particular limitation provision, the Alogical place for that

exception@ would have been Ain, or immediately following,@ that

limitation provision). Clearly, section 13B214.3 addresses Aan

action@ to which section 13B215 applies.

The question, then, is whether the legislature intended

section 13B215 as a tolling provision or exception applicable to

statutes of repose, as well as statutes of limitations. We

-14-

recognize, at the outset, that section 13B215 speaks in terms of

when a person Adiscovers@ that he or she has a cause of

action, and that statutes of repose are intended to terminate

the possibility of liability after a defined period of time,

regardless of a potential plaintiff=s lack of knowledge of his or

her cause of action See Ferguson, 202 Ill. 2d at 311. When a

person Aknew or reasonably should have known@ of the

circumstances giving rise to his or her cause of action is,

therefore, more commonly a consideration in the application of

statutes of limitations. See 735 ILCS 5/13B212(a), 13B213(d),

13B214(a), 13B214.2(a), 13B214.3(b) (West 2000). While the

use of the term Adiscovers@ in section 13B215 might, arguably,

be taken as an indication that section 13B215 was intended as

a tolling provision or exception applicable only to statutes of

limitations, prior statements of this court, relevant actions of the

legislature, and basic principles of justice and reason coalesce

to refute any such contention.

In Anderson v. Wagner, 79 Ill. 2d 295, 321-22 (1979), this

court first suggested, in dictum, that a statute of repose might

be tolled by the fraudulent concealment provisions of section

22 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 23)

(now codified as 735 ILCS 5/13B215 (West 2004)) if fraudulent

concealment of a cause of action spanned the entire limitation

period. Although this court variously referred to the A4-year

maximum limitation period,@ and the Astatute of limitations,@ it is

clear from this court=s discussion that it was referring to the

four-year limitation period of the medical malpractice statute of

repose. See Anderson, 79 Ill. 2d at 321-22. In Anderson, this

court concluded its discussion with a caveat and an exhortation

to the legislature:

ABy discussing section 22 of the Limitations Act we

do not hold that it is applicable in medical malpractice

cases. That question is not before us. There are,

however, uncertainties concerning the applicability of

section 22 of the Limitations Act which we need not

resolve in this opinion but to which we invite the

attention of the General Assembly.@ See Anderson, 79

Ill. 2d at 322.

-15-

Two years after Anderson, this court filed its opinion in

Witherell v. Weimer, 85 Ill. 2d 146 (1981). In Witherell, plaintiff

argued that the defendant doctors should have been

precluded, by the fraudulent concealment provisions of section

22 of the Limitations Act, from raising the medical malpractice

statute of limitations as a bar to the action. Although Witherell

involved a statute of limitations, rather than a statute of repose,

what was said in Witherell is pertinent to our analysis in this

case.

In Witherell, this court declined to address plaintiff=s

fraudulent concealment issue, stating:

AWe need not here consider whether section 22 is

applicable to medical malpractice cases, a question left

unresolved in Anderson v. Wagner (1979), 79 Ill. 2d

295, 322, nor whether the alleged conduct of the

doctors comes within the scope of that statute. In our

opinion, generally accepted principles of equitable

estoppel prevent the defendant doctors from urging the

limitations bar.@ Witherell, 85 Ill. 2d at 158.

Continuing, this court quoted from the Supreme Court=s opinion

in Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231,

232-33, 3 L. Ed. 2d 770, 772, 79 S. Ct. 760, 762 (1959):

A >To decide the case we need look no further than

the maxim that no man may take advantage of his own

wrong. Deeply rooted in our jurisprudence this principle

has been applied in many diverse classes of cases by

both law and equity courts and has frequently been

employed to bar inequitable reliance on statutes of

limitations.= @ Witherell, 85 Ill. 2d at 158.

This court ultimately determined that principles of equitable

estoppel applied irrespective of whether defendants

intentionally misled plaintiff. The court noted, A >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.= @ Witherell, 85 Ill. 2d at 159,

quoting Bomba v W.L. Belvidere, Inc., 579 F.2d 1067, 1071

(7th Cir. 1978). Observing that numerous cases had

characterized the doctor-patient relationship as Aa fiduciary

-16-

one,@ this court acknowledged that Athe relationship between a

doctor and his patient is one in which the patient normally

reposes a great deal of trust and confidence in the doctor,

accepting his recommendations without question.@ Witherell, 85

Ill. 2d at 159. The court concluded: AIn the circumstances

alleged to be present here, we believe that considerations of

fundamental fairness require that the defendant doctors be

held estopped by their conduct from now urging that plaintiff

should have sooner complained against them for a condition

they repeatedly assured her she did not have.@ Witherell, 85 Ill.

2d at 160.

Immediately after the Witherell decision, and obviously in

response to it (see Cangemi v. Advocate South Suburban

Hospital, 364 Ill. App. 3d 446, 465 n.4 (2006)), and possibly

Anderson as well, the legislature amended the medical

malpractice statutes of limitations and repose to specifically

reference the fraudulent concealment statute. The first version

of the statute provided, in part, that no medical malpractice

action could Abe brought more than 4 years after the date on

which occurred the act or omission or occurrence alleged in

such action to have been the cause of such injury or death

except as provided in Section 13B215 of this Act.@ See Ill. Rev.

Stat. 1983, ch. 110, par. 13B212. When the legislature

subsequently amended the statute, placing the statute of

limitations and a general statute of repose in subsection (a),

and an extended statute of repose for minors in subsection (b),

the legislature was careful to include references to section

13B215 in each subsection, unequivocally making section

13B215 an exception applicable to both the medical

malpractice statute of limitations and the statutes of repose.

See Ill. Rev. Stat. 1987, ch. 110, pars. 13B212(a), (b).

The amendments to section 13B212 made clear, for the first

time, the legislature=s intent to apply the provisions of section

13B215 to statutes of repose, notwithstanding any arguable

logical inconsistency. Although the legislature had previously

stated, in section 13B214 (pertaining to actions premised on

acts or omissions in construction), that the Alimitations@

contained therein would Anot apply to *** fraudulent

concealment of causes of action@ (Ill. Rev. Stat. 1981, ch. 110,

-17-

par. 13B214 (f)), the legislature had never before included a

specific reference to section 13B215 (or its antecedent, section

22) in a statutory subsection containing a statute of repose.

While some might well point out that a plaintiff=s knowledge

of his or her cause of action should be irrelevant where a

statute of repose is concerned, as a statute of repose is

intended to terminate the possibility of liability after a defined

period of time, regardless of a potential plaintiff=s lack of

knowledge of his or her cause of action (see Ferguson, 202 Ill.

2d at 311), there would be an obvious and gross injustice in a

rule that allows a defendantBparticularly a defendant who

stands in a fiduciary relationship to the plaintiffBto conceal the

plaintiff=s cause of action and then benefit from a statute of

repose. Clearly, the legislature recognized the potential for

injustice, and amended section 13B212 accordingly, when this

court questioned the applicability of fraudulent concealment

provisions in Anderson, and hesitated to apply those provisions

in Witherell.

Subsequent to the amendments, in Cunningham v.

Huffman, 154 Ill. 2d 398, 407 (1993), this court recognized that

the provisions of section 13B215 would apply to a statute of

repose. Again, in dictum, this court stated Aneither [a] statute of

limitations nor [a] statute of repose would be triggered@ if a

physician purposely concealed the discovery of his negligence.

This court noted: AIn the cases of nondisclosure, the fraudulent

concealment provision in section 13B215 of the Code affords

the patient five years after discovery of the cause of action to

commence the suit.@ Cunningham, 154 Ill. 2d at 407.

Thereafter, in Morris v. Margulis, 197 Ill. 2d 28, 37-38

(2001), this court concluded that it did not have to decide

whether section 13B215 tolled the statute of limitations in

section 13B214.3(b), or whether the defendants had

fraudulently concealed plaintiff=s breach of fiduciary duty claim,

because plaintiff had admitted that he knew of the facts forming

the basis of his claim shortly after the cause of action arose.

In this case, the issue of section 13B215=s applicability to

section 13B214.3(c) is squarely presented and has been

thoroughly briefed and argued by the parties. We see no

reason why section 13B215 should not apply to statutes of

-18-

repose, including the statute of repose contained in subsection

(c) of section 13B214.3.

In prior decisions, this court has acknowledged that statutes

of repose may be tolled by statutory provisions relating to legal

disability (see Bruso, 178 Ill. 2d at 453, 457; Antunes, 146 Ill.

2d at 489, 491-92), and has suggested, in dictum, prior to the

1982 amendments of section 13B212, that section 13B215=s

fraudulent concealment provisions might toll the medical

malpractice statute of repose. See Anderson, 79 Ill. 2d at 321-

22. Subsequently, by incorporating specific references to

section 13B215 in section 13B212 of the Code, the legislature

has unequivocally indicated that it did indeed intend section

13B215 to be an exception applicable to statutes of repose set

forth therein, as this court recognized thereafter in

Cunningham. See Cunningham, 154 Ill. 2d at 407 (Aneither [a]

statute of limitations nor [a] statute of repose would be

triggered@ if a physician purposely concealed the discovery of

his negligence). There is no reason to believe that the

legislature intended to treat attorneys differently than

physicians.

In Horwitz v. Holabird & Root, 212 Ill. 2d 1, 16-17 (2004),

we recognized the weighty obligations attorneys undertake in

the practice of law, quoting from the preamble to the Rules of

Professional Conduct:

A >The practice of law is a public trust. Lawyers are

the trustees of the system by which citizens resolve

disputes among themselves, punish and deter crime,

and determine their relative rights and responsibilities

toward each other and their government. Lawyers

therefore are responsible for *** maintaining public

confidence in the system of justice by acting

competently and with loyalty to the best interests of their

clients; by working to improve that system to meet the

challenges of a rapidly changing society; and by

defending the integrity of the judicial system against

those who would corrupt, abuse or defraud it.= 134 Ill. 2d

Illinois Rules of Professional Conduct, Preamble, at

470.@

-19-

We have held that A[t]he attorney-client relationship constitutes

a fiduciary relationship.@ In re Winthrop, 219 Ill. 2d 526, 543

(2006); Horwitz, 212 Ill. 2d at 9. As we observed in Horwitz,

close monitoring of their attorney=s conduct would be

impossible for most clients, as they are not qualified to

undertake that type of monitoring. Horwitz, 212 Ill. 2d at 17.

Because those who utilize legal services place a great deal of

trust in their attorney, the attorney-client relationship presents a

significant potential for abuse. Cripe v. Leiter, 291 Ill. App. 3d

155, 160 (1997).

Given the nature of the attorney-client relationship, it is

inconceivable that the legislature would have intended to limit

physicians= reliance upon the medical malpractice statute of

repose, when physicians have fraudulently concealed a cause

of action from their patients, but to allow attorneys to benefit

from the legal malpractice statute of repose, where they have

done the same to their clients. We cannot imagine what

rational policy would possibly be furthered by that

differentiation. We must presume that the legislature, in its

enactment of legislation, did not intend absurdity or injustice.

Southern Illinoisan, 218 Ill. 2d at 415. It is our belief that the

legislature originally intended that section 13B215 apply to both

medical malpractice and legal malpractice limitation

enactments, and specifically incorporated references in section

13B212 only when this court expressed doubts concerning the

application of fraudulent concealment provisions in that

context. Thus, we hold that section 13B215, when applicable, is

an exception to the statute of repose contained in section

13B214.3(c) of the Code.

Although our holding today is not inconsistent with our

recent decision in Perlstein v. Wolk, 218 Ill. 2d 448, 452 (2006),

we deem it expedient at this juncture to comment on Perlstein,

as broad language utilized therein might be misconstrued as

inconsistent if not limited to the factual context of that case. In

Perlstein, a question before us was whether plaintiffs= legal

malpractice action was timely filed. In the course of addressing

that question, we discussed the consequences of our

invalidation of Public Act 89B7 in Best v. Taylor Machine

-20-

Works, 179 Ill. 2d 367 (1997). As we noted in Perlstein, prior to

the adoption of Public Act 89B7, section 13B214.3 of the Code

contained a two-year limitations period and a six-year repose

period for attorney malpractice actions (735 ILCS

5/13B214.3(b), (c) (West 1994)), as it does now, but also

included an exception to those provisions in subsection (d) of

the statute (735 ILCS 5/13B214.3(d) (West 1994)). That

exception provided:

AWhen the injury caused by the act or omission does

not occur until the death of the person for whom the

professional services were rendered, the action may be

commenced within 2 years after the date of the person=s

death unless letters of office are issued or the person=s

will is admitted to probate within that 2 year period, in

which case the action must be commenced within the

time for filing claims against the estate or a petition

contesting the validity of the will of the deceased

person, whichever is later, as provided in the Probate

Act of 1975.@ 735 ILCS 5/13B214.3(d) (West 1994).

Public Act 89B7, effective March 9, 1995, removed subsection

(d), but otherwise left intact the remaining provisions of section

13B214.3.

In Perlstein, plaintiffs= action was untimely filed under a

strict application of subsection (d) of section 13B214.3Bignoring

for purposes of this discussion other equitable considerations

we ultimately took into accountBbecause the action should

have been commenced Awithin the time for filing claims against

the estate or a petition contesting the validity of the will of the

deceased person, whichever is later.@ 735 ILCS 5/13B214.3(d)

(West 1994). It was not filed within that time frame. However,

the action was otherwise timely filed within the applicable

statutes of limitations and repose. See 735 ILCS

5/13B214.3(b), (c) (West 1994) Thus, we found it necessary in

Perlstein to discuss the consequences of our invalidation of

Public Act 89B7 and whether subsection (d) still applied.

In the course of our discussion in Perlstein, we stated, with

the passage of Public Act 89B7, Aa two-year limitations period

and a six-year repose period appliedBwithout exceptionBto all

-21-

attorney malpractice actions.@ (Emphasis added.) Perlstein,

218 Ill. 2d at 452. That broad statement must be limited to the

factual context in which it was made, i.e., a legal malpractice

action based upon negligent preparation of a will. This court did

not discuss the applicability of section 13B215 or 13B214.3(e),

or even mention those sections, which were not at issue. Given

the facts before this court, our unqualified statement in

Perlstein is correct insofar as there would have been no

applicable internal Aexceptions@ in section 13B214.3 after the

effective date of Public Act 89B7, had it withstood constitutional

scrutiny. However, the statement does not apply outside of its

factual context, it does not address the relationship between

sections 13B214.3 and 13B215, and it should not be read to

confuse Aexceptions,@ such as those in section 13B215 and

subsection (d) of section 13B214.3, with tolling provisions, such

as the one found in subsection (e) of section 13B214.3. With

that clarification, we consider whether plaintiffs have pled

sufficient facts to take advantage of the fraudulent concealment

provisions of section 13B215.

In Clay v. Kuhl, 189 Ill. 2d 603, 613 (2000), this court noted

that fraudulent concealment will Atoll@ a limitations period if a

plaintiff pleads and proves that fraud prevented discovery of

the cause of action. In Clay, the court stated, A[a]s a general

matter,@ a plaintiff alleging fraudulent concealment must

A >show affirmative acts by the fiduciary designed to prevent the

discovery of the action.= @ Clay, 189 Ill. 2d at 613, quoting

Hagney v. Lopeman, 147 Ill. 2d 458, 463 (1992). However, in

Hagney, this court quoted from Chicago Park District v.

Kenroy, Inc., 78 Ill. 2d 555, 562 (1980), recognizing that

affirmative acts or representations on the part of a fiduciary are

not always necessary:

A > A[i]t is the prevailing rule that, as between persons

sustaining a fiduciary or trust or other confidential

relationship toward each other, the person occupying

the relation of fiduciary or of confidence is under a duty

to reveal the facts to the plaintiff (the other party), and

that his silence when he ought to speak, or his failure to

disclose what he ought to disclose, is as much a fraud

-22-

at law as an actual affirmative false representation or

act; and that mere silence on his part as to a cause of

action, the facts giving rise to which it was his duty to

disclose, amounts to a fraudulent concealment ***.@ = @

Hagney, 147 Ill. 2d at 463, quoting Kenroy, 78 Ill. 2d at

562, quoting Annot., 173 A.L.R. 576, 588 (1948).

See also Crowell v. Bilandic, 81 Ill. 2d 422, 428 (1980) (AIt is

well established that fraudulent concealment sufficient to toll a

statute of limitations requires affirmative acts or

representations designed to prevent discovery of the cause of

action@; however, there is Aa widely recognized exception to

this general rule in those instances when the existence of a

fiduciary relationship is clearly established@).

Although this court, in Hagney, went on to insist upon strict

pleading requirements as a prerequisite to reliance upon

fraudulent concealment provisionsBstating that plaintiffs must

allege Athe trust which was reposed in the fiduciary prevented

the discovery of the cause of action@within the limitations period

(Hagney,147 Ill. 2d at 465)Bthe court did not repudiate the

principles espoused in Kenroy.

Indeed, four years after Hagney, this court implicitly

reaffirmed the principles expressed in Kenroy when the court

rendered its decision in Connick v. Suzuki Motor Co., 174 Ill.

2d 482 (1996). In Connick, this court held, in order to state a

claim of fraudulent concealment, Aa plaintiff must allege that the

defendant concealed a material fact when he was under a duty

to disclose that fact to plaintiff.@ Connick, 174 Ill. 2d at 500. This

court explained:

AA duty to disclose a material fact may arise out of

several situations. First, if plaintiff and defendant are in

a fiduciary or confidential relationship, then defendant is

under a duty to disclose all material facts. [Citations.]

Second, a duty to disclose material facts may arise out

of a situation where plaintiff places trust and confidence

in defendant, thereby placing defendant in a position of

influence and superiority over plaintiff.@ Connick, 174 Ill.

2d at 500.

-23-

Collectively, Kenroy, Hagney, and Connick stand for the

proposition that a fiduciary who is silent, and thus fails to fulfill

his duty to disclose material facts concerning the existence of a

cause of action, has fraudulently concealed that action, even

without affirmative acts or representations. We reaffirm and

apply that principle today.

As we have previously noted, A[t]he attorney-client

relationship constitutes a fiduciary relationship@ (In re Winthrop,

219 Ill. 2d at 543; Horwitz, 212 Ill. 2d at 9), one in which the

client is generally not qualified to monitor the technical aspects

and consequences of the attorney=s conduct. Horwitz, 212 Ill.

2d at 17. Thus, we have imposed an ethical obligation upon

members of the bar to keep clients apprised of major

developments in their cases. See In re Smith, 168 Ill. 2d 269,

280 (1995) (pursuant to Rule 1.4 (a) of the Illinois Rules of

Professional Conduct, attorneys have an ethical obligation to

keep clients informed and apprised of the status of their

cases). As our appellate court has observed, those who utilize

legal services place a great deal of trust in their attorneys;

consequently, the attorney-client relationship presents a

significant potential for abuse. See Cripe, 291 Ill. App. 3d at

160. When, in the course of his or her professional dealings

with a client, an attorney unnecessarily exposes a client to a

risk of loss or otherwise jeopardizes the pecuniary interests of

the client, the attorney has breached a duty to the client. In re

Rosin, 118 Ill. 2d 365, 388 (1987), quoting In re Saladino, 71 Ill.

2d 263, 276 (1978). With these observations and principles in

mind, we turn to the allegations of plaintiffs= complaint.

The alleged negligence here involved Burciaga=s filing of

the underlying medical malpractice action without attaching an

affidavit as required by section 2B622, and his failure to ensure

that the dismissal of the action against Dr. Treister was without

prejudice. Those acts occurred in 1986 and 1987, respectively.

Therefore, in the absence of an applicable tolling provision or

exception, the six-year statute of repose would have expired at

the latest by 1993, eight years prior to the filing of this legal

malpractice action in 2001. Plaintiffs contend that they have

-24-

pled facts sufficient to bring them within the purview of section

13B215, and we agree.

In their fourth amended complaint, plaintiffs allege that

Burciaga was retained by the special administrator of Alicia

DeLuna=s estate to represent the plaintiffs in a medical-

malpractice/wrongful-death action against Dr. Treister and St.

Elizabeth=s Hospital. Thus, a fiduciary relationship existed

between Burciaga and the plaintiffs.

We note, as a general rule, an attorney owes a duty only to

one who is his client; however, an exception to the general rule

has been recognized in limited circumstances when an

attorney is hired by a client specifically for the purpose of

benefitting a third party. See Schwartz v. Cortelloni, 177 Ill. 2d

166, 174-75 (1997); Pelham v. Griesheimer, 92 Ill. 2d 13, 21

(1982); In re Estate of Lis, 365 Ill. App. 3d 1, 14-18 (2006). The

key factor to be considered in determining whether a duty is

owed to a third party is whether the attorney acted at the

direction of, or on behalf of, the client for the benefit of the third

party. Schwartz, 177 Ill. 2d at 175, citing Pelham, 92 Ill. 2d at

21. It is here alleged that Burciaga was retained to prosecute a

medical-malpractice/wrongful-death action. A wrongful-death

action, if filed, must Abe brought by and in the names of the

personal representatives of [the] deceased person *** for the

exclusive benefit of the surviving spouse and next of kin.@ 740

ILCS 180/2 (West 2004). Plaintiffs, as the surviving children of

Alicia DeLuna, were her next of kin, and the wrongful-death

action was indisputably brought for their benefit. Under the

circumstances, we hold that the requirement of Schwartz and

Pelham is met, and Burciaga did indeed owe plaintiffs a

fiduciary duty.

In their complaint, plaintiffs further allege that Burciaga,

their fiduciary, failed to reveal pertinent facts giving rise to the

legal malpractice action at various stages of his representation.

Among other things, he failed to inform plaintiffs that he was

intentionally filing the underlying medical malpractice action

without the requisite section 2B622 affidavit in order to test the

constitutionality of the statute, thereby depriving them of the

opportunity to make informed decisions regarding their

-25-

representation, and unnecessarily jeopardizing the viability of

their cause of action.

Plaintiffs also allege that Burciaga affirmatively misled them

in the spring of 1992 when he told them, in an office

conference attended by Oscar, that their case was Agoing very

well.@ Contrary to Burciaga=s misrepresentation, as of February

25, 1987, the circuit court had in fact dismissed their medical

malpractice action as to both defendants, due to the absence

of the required affidavit, and this court had affirmed the

dismissal on February 20, 1992. In effect, the case against Dr.

Treister was over. The result was adverse to plaintiffs and, with

this court=s affirmance of the dismissal, conclusive; however,

Burciaga failed to disclose material facts bearing upon the

procedural status of plaintiffs= case, at a meeting where such a

disclosure should have been made, and at a time when

plaintiffs could have taken some action against Burciaga

without running afoul of the statute of repose.

Plaintiffs complaint further alleges that in a subsequent

office conference, attended by Oscar and Griselda in the

summer of 1997, Burciaga again told them that the case was

Agoing very well@ and that Athere was no need for him to be in

more frequent contact with them about the case.@ According to

the allegations of plaintiffs= complaint, it was not until March 24,

2000, that attorney Michael Rathsack sent a letter to Oscar

DeLuna, informing the DeLunas, for the first time, that Burciaga

had used their medical malpractice action to test the

constitutionality of section 2B622, that their medical malpractice

action against Dr. Treister was barred, and that they might

have an action for legal malpractice against Burciaga.

In their complaint, plaintiffs note that Burciaga Ahandle[d] all

communications with the DeLunas since only he spoke

Spanish and therefore only he could communicate directly with

the DeLunas.@ The inescapable import of that assertion is that

the DeLunas could not speak English. Plaintiffs further alleged

that they Arelied in good faith on Burciaga=s reassurances and

assertions that the case was going very well as being the

truth,@ and, consequently, they did not investigate the status of

their case.

-26-

We conclude that plaintiffs= allegations, if proven, are

sufficient to establish Burciaga=s fraudulent concealment of

facts supporting plaintiffs= legal malpractice cause of action.

Those allegations indicate that Burciaga, their fiduciary,

pursued a course of conduct intended to conceal the facts

giving rise to their legal malpractice action by assuring

plaintiffs, in the spring of 1992, as the deadline of the legal

malpractice statute of repose approached, that their case was

Agoing very well,@ by failing to advise them, at that meeting, of

the true status of their case, by again offering assurances,

during a meeting in the summer of 1997, that the case was

Agoing very well,@ and by further advising plaintiffs that there

was no need to contact him more frequently about the status of

the case.

Moreover, we find the allegations of plaintiffs= complaint

sufficient to meet the pleading requirements set forth in

Hagney assuming, arguendo, that those requirements are

necessary under the facts of this case. See Barratt v.

Goldberg, 296 Ill. App. 3d 252, 258 (1998) (noting Hagney=s

pleading requirement and distinguishing Jackson Jordan, Inc.

v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 251-53 (1994), on the

basis that the Adefendant law firm in that case made continuous

reassurances to the plaintiff, which delayed plaintiff=s filing of

her suit@). Plaintiffs in this case allege that they Arelied in good

faith on Burciaga=s reassurances and assertions that the case

was going very well as being the truth,@ and, consequently,

they did not investigate the status of their case. Given

Burciaga=s assurances, and the fact that the plaintiffs in this

case obviously could not speak English, and may well have

been unable to read it, we do not believe that plaintiffs were

required to conduct their own courthouse investigation.

Because of language barriers, they were even less qualified

than Amost clients *** to undertake that type of monitoring.@ See

Horwitz, 212 Ill. 2d at 17. Moreover, in light of Burciaga=s

assurances and reassurances, they had no reason to think

such an investigation was necessary. Cf. Jackson Jordan, Inc.,

158 Ill. 2d at 251-53 (applying principles of equitable estoppel

to a statute of limitations defense in a legal malpractice case

-27-

where Athe client was lulled into a false sense of security by the

firm=s soothing reassurances and advice@).

Pursuant to the provisions of section 13B215, plaintiffs had

five years after discovery of their causes of action to file their

legal malpractice suit. 735 ILCS 5/13B215 (West 2000). They

discovered their causes of action against Burciaga when, in

March of 2000, Rathsack informed them by letter of the true

circumstances surrounding their case. They filed their legal

malpractice action in February of 2001, well within the five-year

period. Accordingly, we find that the allegations of plaintiffs=

complaint, if proven, support a finding that Oscar=s and

Griselda=s legal malpractice action was timely filed within the

limitations period set forth in section 13B215 of the Code.

The result would be no different if we were to analyze this

case using principles of equitable estoppel. A party claiming

estoppel must demonstrate that: (1) the other person

misrepresented or concealed material facts; (2) the other

person knew at the time he or she made the representations

that they were untrue; (3) the party claiming estoppel did not

know that the representations were untrue when they were

made and when that party decided to act, or not, upon the

representations; (4) the other person intended or reasonably

expected that the party claiming estoppel would determine

whether to act, or not, based upon the representations; (5) the

party claiming estoppel reasonably relied upon the

representations in good faith to his or her detriment; and (6) the

party claiming estoppel would be prejudiced by his or her

reliance on the representations if the other person is permitted

to deny the truth thereof. Geddes v. Mill Creek Country Club,

Inc., 196 Ill. 2d 302, 313-14 (2001). As this court noted in

Jackson Jordan:

A > A[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., 158 Ill. 2d at 252, quoting

-28-

Witherell, 85 Ill. 2d at 159, quoting Bomba v. W.L.

Belvidere, Inc., 579 F.2d 1067, 1071 (7th Cir. 1978).

In Jackson Jordan, this court was confronted with

circumstances which were, for all pertinent purposes,

indistinguishable from those now before us. This court held that

principles of equitable estoppel barred the defendant law firm

from raising a statute of limitations as a defense in that legal

malpractice action. Given the facts of this case, in particular the

vulnerability of the plaintiffs and the blatantly false status report

Burciaga gave them in the spring of 1992, one might well argue

that the impetus and justification for applying equitable

estoppel in this instance would be even greater than in

Jackson Jordan.

However, in light of our holding on the issue of fraudulent

concealment, and our analysis in that regard, which either

overtly or implicitly addresses and subsumes considerations

pertinent to the doctrine of equitable estoppel, we find it

unnecessary to hold that principles of equitable estoppel apply

in this case. It is our prerogative to forgo the determination of

issues unnecessary to the outcome of the case. DeSmet v.

County of Rock Island, 219 Ill. 2d 497, 509 (2006). Moreover,

there is no need to address plaintiffs= constitutional issue.

Since we have held that the allegations of plaintiffs= complaint

are sufficient, if proven, to establish fraudulent concealment of

their causes of action, plaintiffs= constitutional argument is now

moot.

Before we conclude, we wish to take this opportunity to

encourage the legislature to undertake a comprehensive

review of article XIII provisions pertaining to statutes of

limitations and repose. Greater specificity and uniformity in that

area of the Code would obviate the need for courts to so often

speculate as to the General Assembly=s intent.

In sum, we hold that plaintiffs= legal malpractice action was

timely filed as to Sonia and Susanna because subsection (e) of

section 13B214.3 tolled the legal malpractice statute of repose.

Further, we find that the allegations of plaintiffs= complaint are

sufficient, if proven, to establish fraudulent concealment of

plaintiffs= causes of action by Burciaga. Thus, assuming that

-29-

plaintiffs can prove the allegations of their complaint, the action

was timely filed as to Oscar and Griselda as well. For the

foregoing reasons, we affirm in part and reverse in part the

judgment of the appellate court, reverse the judgment of the

circuit court, and remand this cause to the circuit court for

further proceedings consistent with this opinion.

Appellate court judgment affirmed

in part and reversed in part;

circuit court judgment reversed;

cause remanded.

CHIEF JUSTICE THOMAS and JUSTICE BURKE took no

part in the consideration or decision of this case.

-30-