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March 19, 2003


The opinion of the court was delivered by: John W. Darrah, United States District Court


Plaintiffs, Richard Pendleton ("Richard") and Marcia Doering ("Marcia") (collectively "Plaintiffs"), filed an amended complaint*fn1 against Defendant, LaSalle National Bank, now known as LaSalle Bank National Association ("Defendant"), alleging negligence (Count I) and breach of fiduciary duty (Count II).*fn2

On April 24, 2002, this Court entered summary judgment in favor of Defendant on these claims on the grounds that they were barred by the applicable statute of limitations. Plaintiffs appealed the grant of summary judgment. On October 25, 2002, the Court of Appeals for the Seventh Circuit affirmed the grant of summary judgment on Plaintiffs' conversion claims and affirmed in part and reversed in part the grant of summary judgment on Plaintiffs' negligence and breach of fiduciary duty claims. The Seventh Circuit remanded this case for consideration of claims accruing after July 1993.

Defendant, pursuant to Federal Rule of Civil Procedure 56, moves for summary judgment on the issues of whether it failed (1) to promptly close and distribute the assets of the estate and Plaintiffs' mother's living trust and (2) to prevent Brian Pendleton ("Brian"), Plaintiffs' brother, from delaying the close of the estate through his vexatious litigation tactics. For the reasons that follow, Defendant's Motion for Summary Judgment is granted.


Summary judgment is appropriate when there remains no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1994). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus, although the moving party on a motion for summary judgment is responsible for demonstrating to the court why there is no genuine issue of material fact, the non-moving party must go beyond the face of the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to demonstrate, through specific evidence, that there remains a genuine issue of material fact and show that a rational jury could return a verdict in the non-moving party's favor. Celotex, 477 U.S. at 322-27; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994).

Disputed facts are material when they might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). When reviewing a motion for summary judgment, a court must view all inferences to be drawn from the facts in the light most favorable to the opposing party. Anderson, 477 U.S. at 247-48; Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). However, a metaphysical doubt will not suffice. Matsushita, 475 U.S. at 586. If the evidence is merely colorable or is not significantly probative or is no more than a scintilla, summary judgment may be granted. Anderson, 477 U.S. at 249-250.


The undisputed facts taken from the parties' Local Rule 56.1(a) & (b) statements of material facts (referred to herein as "Pl.'s 56.1" and "Def.'s 56.1")*fn3 and exhibits are as follows.

Richard now resides in and is a citizen of Nevada. (Pl.'s 56.1 ¶ 1.) Marcia was, at all material times, a citizen of Ohio and now resides in North Carolina. (Def.'s 56.1 ¶ 2; Pl.'s 56.1 ¶ 1.) Richard, Marcia, and Brian are now in their fifties and sixties. (Pl.'s 56.1 ¶ 1.) Defendant is a national banking association having its principal offices in Illinois. (Def.'s 56.1 ¶ 3.)

Esther Pendleton ("Mrs. Pendleton") was the mother of Plaintiffs and Brian. (Def.'s 56.1 ¶ 6.) For many years prior to her death, Mrs. Pendleton lived at and owned 151 Abington Avenue in Kenilworth, Illinois. (Pl.'s 56.1 ¶ 2.) For less than a year prior to her death, Defendant served as the guardian of Mrs. Pendleton's disabled estate. (Def.'s 56.1 ¶ 7.) Defendant was also the trustee of a "pour-over" trust ("the Trust") that she had created under a trust instrument dated September 4, 1986. (Id.) Mrs. Pendleton passed away on August 27, 1987. (Id. ¶ 6.)

Mrs. Pendleton's probate estate was opened in the Cook County Circuit Court, Probate Division in September 1987 as case number 87 P. 8849 ("the probate case"). (Id. ¶ 8.) Brian was appointed co-administrator of Mrs. Pendleton's estate under the supervision of the Honorable Henry Budzinski, then Presiding Judge of the Probate Division. (Id. ¶ 9.) As of November 7, 2001, Brian was removed as co-administrator of Mrs. Pendleton' s estate; and Defendant was appointed as administrator under the supervision of Judge Budzinski. (Id. ¶ 10.)

Brian filed many appeals from orders entered by the Probate Court, including Appellate Court of Illinois, First District appeals numbered 94-1626, 94-1694, 94-2203, 94-3824, 96-3312, and 97-0210. (Pl.'s 56.1 ¶ 15.) The home in Kenilworth, Illinois was sold in April 1993 in an "as is" condition subject to a $200,000 mortgage placed on the home by Brian for an alleged rehabilitation project. (Id. ¶ 16.) Defendant frequently took positions adverse to Brian. (Id. ¶ 17.) For example, it filed a petition to evict Brian from the home, opposed Brian on each of his appeals and Brian's petition for administrator's fees. (Id.)

During the pendency of the Probate Case, Plaintiffs never sought Defendant's removal as administrator. (Def's 56.1 ¶ 20.) The Probate Case did not conclude until August 10, 1999, when Judge Budzinski entered orders approving the final account and discharging Defendant as administrator. (Id. ¶ 11.) Brian's activities delayed the conclusion of the Probate Case and, therefore, the closing of the Estate. (Id. ¶ 14.) Upon entry of an order by Judge Budzinski, the Estate was closed and its assets distributed to the Trust in the same month that the ...

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