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Harris v. Vitale

Court of Appeals of Illinois, First District, Second Division

March 18, 2014

ROBERT F. HARRIS, Cook County Public Guardian, Plenary Guardian of the Estate and Person of Arlene Molloy, a Disabled Person, Petitioner-Appellant,
v.
MICHAEL J. VITALE, Respondent-Appellee

Page 179

Appeal from the Circuit Court of Cook County. No. 09 P 902. The Honorable Jane L. Stuart, Judge Presiding.

Affirmed.

SYLLABUS

In an action arising from a transaction in which respondent attorney notarized his client's signature on a document the client used to obtain ownership of an annuity held by his incompetent mother, the trial court properly dismissed the citation to recover the assets at issue filed by the public guardian on behalf of the incompetent mother, notwithstanding the public guardian's contentions that the funds were converted by the son and paid to respondent attorney, who had a duty to the mother and was guilty of legal malpractice and official misconduct, since respondent stated that he did not notarize the mother's signature and the public guardian failed to present any evidence to counter the son's affidavit that he only asked to have his signature on the change-of-ownership document notarized by respondent attorney.

For APPELLANT: Kass A. Plain and Christopher Williams, of counsel, Robert F. Harris, Cook County Public Guardian, Office of the Cook County Public Guardian, Chicago, IL.

For APPELLEE: Matthew R. Henderson, Nabil G. Foster and Timothy G. Shelton, of counsel, Hinshaw & Culbertson, LLP, Chicago, IL.

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Simon and Pierce concurred in the judgment and opinion.

OPINION

HARRIS, PRESIDING JUSTICE

Page 180

[¶1] Petitioner Robert F. Harris appeals the order of the circuit court granting respondent Michael J. Vitale's motion to dismiss petitioner's citation to recover assets against him pursuant to section 2-619.1 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2010)). On appeal, petitioner contends the court erred in granting the motion to dismiss because (1) Mr. Vitale committed legal malpractice and owed Arlene Molloy a duty of care; and (2) petitioner adequately pled a cause of action for official misconduct. Petitioner also contends that the trial court is authorized to award punitive damages against Mr. Vitale for official misconduct. For the following reasons, we affirm.

[¶2] JURISDICTION

[¶3] The circuit court entered its order granting Mr. Vitale's motion to dismiss on October 31, 2012. The court also made a finding pursuant to Illinois Supreme Court Rule 304(a) (Ill. S.Ct. R. No. 1-12-3514 304(a) (eff. Feb. 26, 2010)) that " there is no just reason for delaying appeal." Petitioner filed a notice of appeal on November 30, 2012. Accordingly, this court has jurisdiction pursuant to Rule 304(a) ...


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