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In Re Estate of Soderholm

OPINION FILED SEPTEMBER 27, 1984.

IN RE ESTATE OF MYRTLE B. SODERHOLM (JOHN M. KOMALA ET AL., PLAINTIFFS-APPELLANTS,

v.

OSCAR B. SODERHOLM ET AL., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County; the Hon. Richard E. Dowdle, Judge, presiding.

JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

The central issue in this appeal is whether the trial court properly entered a judgment by default against the plaintiffs, John and Vera Komala, as a discovery sanction under Illinois Supreme Court Rule 219(c)(v) (87 Ill.2d R. 219 (c)(v)). In 1981, the plaintiffs filed a declaratory judgment action seeking a judicial determination that Myrtle B. Soderholm, an incompetent, had the requisite mental capacity to create a number of Totten Trust accounts under which the plaintiffs were the beneficiaries. The defendant-appellee herein, LaSalle National Bank (the conservator), was named as the successor conservator of Myrtle's estate soon after the onset of the lawsuit. *fn1 The conservator filed an answer to the plaintiffs' complaint, alleging that Myrtle was senile and therefore incapable of creating a valid trust agreement. The conservator further set forth its own prayer for declaratory relief, requesting that the court order the plaintiffs to deliver to the conservator any property in their possession belonging to Myrtle and seeking a declaration that the plaintiffs had no legal or equitable rights in any of Myrtle's property. The affirmative allegations in support of the conservator's prayer for declaratory relief stated that the plaintiffs had fraudulently abused a fiduciary relationship they owed to Myrtle.

Both of the plaintiffs were deposed under oath during the course of discovery. As we shall discuss at length later in this opinion, the plaintiffs repeatedly lied during their depositions and admittedly destroyed physical evidence which the trial court had ordered them to produce. It was for these discovery violations that a judgment by default was entered against the plaintiffs. Myrtle died on February 21, 1983, over a year after the suit had been filed by the plaintiffs. On March 3, 1983, the conservator filed its motion seeking sanctions for the plaintiffs' violations of discovery rules. The plaintiffs responded and further moved for a voluntary dismissal of their complaint, alleging that Myrtle's death had divested the conservator of authority to request sanctions or pursue the affirmative allegations contained in its answer to the plaintiffs' complaint.

In its order, the trial court entered judgment by default against the plaintiffs and in favor of the conservator as a discovery sanction. It further granted the conservator's motions to dismiss the plaintiffs' complaint with prejudice and to strike the plaintiffs' answer to the conservator's affirmative allegations. The plaintiffs' motion to voluntarily dismiss their own complaint was denied. The plaintiffs now appeal.

The plaintiffs have raised two threshold matters concerning jurisdiction which we must address prior to reaching the merits: whether the trial court improperly refused to voluntarily dismiss the plaintiffs' complaint upon their own motion and whether the court had jurisdiction to impose sanctions and consider the conservator's affirmative allegations following the death of Myrtle. If we find that the trial court possessed jurisdiction to enter its order, we must then address the plaintiffs' argument that the imposition of the sanction of judgment by default was an abusive exercise of the trial court's discretion. The plaintiffs have also raised a number of peripheral matters which shall be discussed at the conclusion of this opinion.

The plaintiffs first contend that the trial court's order is "void as a matter of law" because the court "had no jurisdiction to deny" the plaintiffs' motion to voluntarily dismiss their own complaint. Specifically, the plaintiffs maintain that they possessed an absolute right to voluntarily dismiss their complaint prior to trial. (See Gilbert-Hodgman, Inc. v. Chicago Thoroughbred Enterprises, Inc. (1974), 17 Ill. App.3d 460, 308 N.E.2d 164.) However, section 2-1009 of the Illinois Code of Civil Procedure provides that "* * * [a]fter a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant's consent." (Ill. Rev. Stat. 1983, ch. 110, par. 2-1009(a).) While a plaintiff generally may voluntarily dismiss his action before trial, he may dismiss the action only if the defendant consents once a counterclaim has been pleaded. (Myers v. Myers (1977), 51 Ill. App.3d 830, 366 N.E.2d 114; In re Marriage of Hanlon (1980), 83 Ill. App.3d 629, 404 N.E.2d 873.) In an action for declaratory judgment, an answer including a prayer for relief may be considered a counterclaim. Country Life Insurance Co. v. Goffinet (1969), 117 Ill. App.2d 338, 254 N.E.2d 281.

• 1 In the instant action, the conservator's prayer for declaratory relief requested that the court order the plaintiffs to deliver to the conservator any property in their possession belonging to Myrtle and sought a declaration that the plaintiffs had no legal or equitable rights in any of Myrtle's property. The conservator's affirmative allegations in support of its prayer for declaratory relief alleged that the plaintiffs had induced Myrtle to create the accounts through fraud and through an abuse of a fiduciary duty they owed to Myrtle. We believe that the conservator's responsive pleadings constituted a viable counterclaim. Because the conservator did not consent to the plaintiffs' motion to voluntarily dismiss their complaint, the trial court properly denied the motion to dismiss.

• 2 The plaintiffs nonetheless argue that the trial court had no discretion to deny their motion to voluntarily dismiss the complaint because the controversy had become moot. Specifically, the plaintiffs contend that the money in the accounts vested in them as a matter of law when Myrtle died, thus mooting any counterclaim raised by the conservator. As we understand it, the plaintiffs are asking this court to conclude that the money in the accounts became theirs upon Myrtle's death regardless of whether it was procured by fraud or an abuse of a fiduciary relationship. We find this position untenable. The conservator's authority to challenge the creation of the trust accounts must necessarily survive Myrtle's death, and any irregularities in the creation of the trust consequently did not become moot once Myrtle died.

As an alternative argument on this voluntary dismissal issue, the plaintiffs maintain that the conservator had no authority to object to their motion to voluntarily dismiss. Specifically, the plaintiffs contend that the conservator could not challenge the creation of the trusts unless the money in the accounts was needed for Myrtle's support during her lifetime. The plaintiffs consequently argue that because the money in the accounts was not needed for Myrtle's support, the conservator could neither challenge the creation of the trusts nor object to the plaintiffs' motion to dismiss their complaint. We disagree.

The plaintiffs cite a number of cases to the effect that a conservator may not use the funds in an already existing Totten Trust account unless the money is needed for the care and support of the ward. (See, e.g., Rozycke v. Sroka (1972), 3 Ill. App.3d 741, 279 N.E.2d 155, Schlieper v. Rust (1977), 46 Ill. App.3d 319, 360 N.E.2d 1192.) In those cases the validity of the creation of the trust accounts was not an issue and the propriety of the conveyances was never questioned. In the instant action, however, the focus of the controversy between the parties centers squarely upon the validity of the creation of the trusts. We therefore do not think that the cases cited by the plaintiffs have any bearing on the case now before this court.

• 3 A conservator generally has the duty to appear for and represent his ward in legal proceedings and may commence, prosecute or defend a proceeding on the ward's behalf. (See Ill. Rev. Stat. 1983, ch. 110 1/2, par. 11a-18(c).) The conservator also has the statutory duty to care for and manage the ward's estate. (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 11a-18(a).) In this case, the conservator has alleged in its counterclaim that Myrtle was fraudulently induced to create the accounts and that the plaintiffs abused a fiduciary duty which they owed to Myrtle. We believe that the conservator must necessarily be authorized to pursue these allegations on behalf of its ward in order to protect its ward's estate and to fulfill its statutory duty to the ward. Accordingly, we believe that the conservator was properly allowed to object to the plaintiffs' motion to dismiss and to pursue its affirmative allegations in its attempt to set the trusts aside. We consequently find no merit in the plaintiffs' arguments that the conservator could not object unless the money in the accounts was needed for the care and support of Myrtle.

The next jurisdictional issue raised by the plaintiffs concerns the conservator's authority to pursue this action after Myrtle's death. In essence, the plaintiffs maintain that any authority possessed by the conservator to take part in the proceedings terminated upon the death of the ward, Myrtle. The plaintiffs cite no authority in support of their position, and we believe that they are incorrect for two reasons.

• 4 First, as the conservator correctly points out, the Probate Act specifically provides that the conservator could maintain this action under the Act with the powers of an administrator to collect. Specifically, section 24-19 of the Act provides:

"Without order of appointment and until the issuance of letters testamentary or of administration or until sooner discharged by the court, a representative of the estate of a deceased ward has the powers and duties of an administrator to ...


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