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Kresse v. Union Planters Bank

January 03, 2001


Appeal from Circuit Court of Macon County No. 98P224 Honorable Theodore E. Paine, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

In December 1998, Christine Kresse, decedent Bernadine Goffinet's daughter, commenced this action by filing claims against the estate for personal services rendered as guardian of Bernadine's person (755 ILCS 5/11a-17 (West 1992)) from October 1993 to June 1998. During trial, the court barred a portion of Kresse's testimony based upon section 8-201 of the Code of Civil Procedure (Code), often referred to as the Dead-Man's Act (alternately referred to herein as the Act) (735 ILCS 5/8-201 (West 1998)). Kresse appeals, arguing that (1) the trial court erred in its application of the Act to her claim against the estate; and (2) if the trial court properly applied the Act, the court abused its discretion in the amount of mileage reimbursement and attorney fees awarded. We affirm in part, reverse in part, and remand with directions.


Bernadine had three daughters, Christine Kresse, Phyllis Bankson, and Kay Buzan, and a son, James E. Goffinet. In October 1993, James and Kay filed a petition for guardianship in Macon County. Each family retained its own attorney throughout these proceedings. Kresse initially opposed a guardian for her mother. However, once James and Kay filed the petition for guardianship, she asked to be sole guardian; Bernadine's other children asked that they all serve as guardian together. In 1993, the court appointed Kresse sole guardian of Bernadine's person and she served in that capacity until her mother's death in June 1998. The court appointed Magna Trust Company, the predecessor to respondent, Union Planters Bank (Bank), guardian of Bernadine's estate and appointed Kresse guardian of her person.

Bernadine's daughters and James' three children survived her. The will left the residue of her estate to her four children, in equal shares per stirpes. The Bank serves as executor. Following the probate of Bernadine's will, Kresse and her attorney, Charles J. Gramlich, filed four separate claims against the estate: (1) Gramlich's claim for $3,743.25 for unpaid attorney fees incurred by Kresse; (2) Kresse's claim for personal services rendered as guardian of Bernadine's person for over $120,000; (3) Kresse's claim for over $100,000 for personal services rendered pursuant to section 18-1.1 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/18-1.1 (West 1998)) for Bernadine's care; and (4) Kresse's claim for $9,673.18 for attorney fees incurred by her as the guardian of Bernadine's person.

The executor filed a demand for a bill of particulars as to all four claims. Kresse filed a motion to withdraw her claim for over $100,000 under section 18-1.1 of the Probate Act (755 ILCS 5/18-1.1 (West 1998)), which the court granted.

In August 1999, the trial court commenced the hearing on the claims. Greg Johnson, the Bank's trust officer, testified that the Bank paid caregivers for taking care of Bernadine throughout the guardianship. He also testified that the Bank reimbursed Kresse as guardian of Bernadine's person.

During the guardianship, the trial court granted a petition authorizing the Bank, as guardian of the estate, to make gifts up to $10,000 individually and $30,000 per family each year to the four families of Bernadine's children.

During the August 1999 hearing, Kresse testified that the attorney fees for which she sought reimbursement were for services to obtain the gifts throughout the guardianship and fees charged for preparing and prosecuting the instant claim. Kresse attempted to testify to a log containing a summary of what she did for her mother as guardian of the person, but the executor objected to this testimony on the basis of the Act. At the hearing, the executor provided the court a memorandum in support of the Act's application. Kresse's attorney said that he had just received the memo that day, and he sought time to read the cases and address the issue it raised. The trial court ruled that, based upon the Act, Kresse could not testify about services she performed in Bernadine's presence.

In September 1999, the trial court held further hear ings. The court held that contemporaneous records maintained by Kresse were inadmissible to the extent that those records represented services rendered in Bernadine's presence. Kresse made several offers of proof during the hearings concerning the services that she performed in her mother's presence.

In November 1999, the court issued its ruling as follows: (1) the attorney time records lacked detail and generally did not distinguish between the attorney fees for representing Kresse individually in connection with the benefits she received as part of the estate planning and those that she incurred in her capacity as guardian of Bernadine's person; (2) attorney fees for services rendered to Kresse in connection with the gifting program would be inappropriate; (3) the court awarded $817.50 for attorney fees that it was able to trace to her duties as guardian; (4) the court awarded Kresse $7,685.32 that it found to be her unreimbursed out-of-pocket expenses; and (5) the court awarded Kresse $15,000 as a reasonable fee for her services as guardian of Bernadine's person.

In December 1999, Kresse filed a motion for reconsideration and/or clarification, which the court granted in part and denied in part. In January 1999, the court modified its order to indicate that it intended the $15,000 award to include mileage. This appeal followed.


A. Application of ...

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