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10/05/87 Evelyn R. Greene, v. the First National Bank of

October 5, 1987





516 N.E.2d 311, 162 Ill. App. 3d 914, 114 Ill. Dec. 156 1987.IL.1482

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.


JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL and MANNING, JJ., concur.


The plaintiff, Evelyn Greene (Evelyn), initiated this action against First National Bank of Chicago (First National), the co-executor and trustee for the estate of Anna Greenebaum (Anna), her mother, and Raymond L. Rusnak, Richard H. Deutsch, and Howard Gilbert, and their law firm (collectively Rusnak defendants), who were the drafters of Anna's will. In a multiple-count complaint, plaintiff alleged that the defendants committed breach of fiduciary duty, fraud, conspiracy, and tortious interference with an expectancy to inherit. The complaint further alleged that the Rusnak defendants committed legal malpractice.

Each of the counts of Evelyn's complaint was based on the same set of factual allegations. She alleged that in 1976, First National requested the opinion of its in-house attorneys concerning how Anna Greenebaum's will exercised the power of appointment over the corpus of a trust which formed the bulk of her estate. James R. Hexem, an attorney from First National's trust department, wrote a letter (Hexem letter) to Rusnak stating that the will exercised the power of appointment in favor of Evelyn. Plaintiff alleged that from the time she received a copy of the Hexem letter and "at relevant times thereafter, . . . [she] understood and relied upon defendant First National's representation that she was the sole beneficiary of the exercise of the Power of Appointment by Anna's will."

Plaintiff further alleged that when Rusnak received the Hexem letter, he began a series of communications with First National. The purpose of these communications was to convince First National that the power of appointment was in fact exercised equally in favor of Evelyn and her sister, Ruth Grumbine Lowry (Ruth). As a result of these alleged communications, First National changed its position to the one advocated by Rusnak. None of these communications were disclosed to Anna or Evelyn.

At Anna's death in 1980, her will was admitted to probate. Evelyn petitioned the probate court to construe the appointment language in Anna's will. She contended that the will exercised the power over the corpus of Ann's trust solely in her favor. The probate court rejected this contention, holding that the will unambiguously exercised the power of appointment one-half in favor of Evelyn and one-half in favor of First National as trustee for Ruth. This court affirmed the circuit court in an unpublished Rule 23 (107 Ill. 2d R. 23) order.

Following this unsuccessful probate suit, plaintiff filed the instant action. Pursuant to defendant's motion to dismiss and strike under sections 2-615 and 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-615, 2-619), the trial court dismissed counts II through VI of plaintiff's complaint. Plaintiff appeals from this dismissal order. I

In ruling on a motion to dismiss pursuant to section 2 -- 615, the court must "accept all well-pleaded facts as true and then . . . determine whether the allegations of the complaint, when interpreted in a light most favorable to plaintiff, are sufficient to state a cause of action against defendants. [Citations.] A cause of action is properly dismissed on the pleadings where it clearly appears that no set of facts can be proved which will entitle the plaintiff to relief. [Citation.]" (Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill. App. 3d 856, 863, 403 N.E.2d 470, 474.) Applying this rule to the instant complaint, the trial court dismissed the complaint, finding it to be substantially insufficient as a matter of law.

The trial court's rationale for this Conclusion was that the Hexem letter, which was incorporated by reference into the complaint, contradicted key allegations. Generally, exhibits to a complaint govern over the allegations in the complaint. To the extent that the exhibit and allegations are inconsistent or in conflict the allegations are negated. Sangamon County Fair & Agricultural Association v. Standard (1956), 9 Ill. 2d 267, 276, 137 N.E.2d 487, 493; First National Bank v. Shape Magnetronics, Inc. (1985), 135 Ill. App. 3d 288, 293, 481 N.E.2d 953, 956.

The exhibit in question, the Hexem letter, was written in 1976 by one of First National's attorneys and sent to Raymond L. Rusnak. The full text of the letter is as follows:

"Dear Mr. Rusnak:

Pat Rossi, the Administrative Officer, [ sic ] for the Greenebaum Trust, and I have reviewed the provisions of Mrs. Greenebaum's Will and the provisions of her husband's Testamentary Trust, for the purpose of determining whether the Trustee of the marital trust may purchase U.S. Treasury (Flower) Bonds ...

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