from the Circuit Court of the 12th Judicial Circuit Will
County, Illinois Appeal No. 3-16-0037 Circuit No. 11-D-2194
Honorable Matthew G. Bertani Judge, Presiding.
JUSTICE LYTTON delivered the judgment of the court, with
opinion. Justices Carter and McDade concurred in the judgment
1 Petitioner Stanislawa DiFiglio filed a petition for
dissolution of marriage against respondent James DiFiglio. In
the dissolution action, Stanislawa filed a third-party
complaint against David Malmstedt, James's brother-in-law
and attorney-in-fact, alleging that he owed money to the
marital estate. Malmstedt filed a motion to dismiss the
complaint for lack of personal jurisdiction. The trial court
denied Malmstedt's motion. Malmstedt filed a petition for
leave to appeal the trial court's denial of his motion to
dismiss. We granted Malmstedt's petition for leave to
appeal and affirm the trial court's order.
3 In 2011, Stanislawa filed a petition for dissolution of
marriage against James. The following year, James executed an
Illinois statutory short form power of attorney for property,
naming Malmstedt as his attorney-in-fact. In 2013, James sold
Buchunter Transport, Inc., an Illinois corporation he started
during the marriage. Malmstedt participated in the sale and
received the proceeds from it.
4 In October 2014, Malmstedt accompanied James to court for a
case management hearing in the dissolution action. At the
hearing, Malmstedt identified himself as James's
"brother-in-law and power of attorney." He stated
that he sees and reviews communications that James's
attorney sends to James and "go[es] over" the
documents with James.
5 Stanislawa filed a petition to join Malmstedt as a third
party in the dissolution action, alleging "[t]hat as the
power of attorney of the estate of JAMES DIFIGLIO, David
Malmstedt received and dispensed well over $575, 000.00 from
the sale of a portion of the business known as Buchunter
Transport, Inc., which was marital property." The trial
court held a hearing on the petition. At that hearing,
James's attorney stated that James never possessed any
funds from the sale of Buchunter Transport, Inc. because
Malmstedt received all of the funds from the sale of the
business. He admitted that the funds were marital property.
The trial court granted Stanislawa's petition to join
Malmstedt as a third party.
6 Stanislawa then filed a third-party complaint against
Malmstedt, alleging that he received and dispensed with over
$575, 000 of marital property following the sale of Buchunter
Transport Inc. The complaint further alleged that Malmstedt
owed a fiduciary duty to James and Stanislawa and that he
violated his duty by "wrongfully" and
"unlawfully" taking funds from the marital estate.
7 Malmstedt filed a motion to dismiss the third-party
complaint "for lack of personal jurisdiction." He
asserted that he "is a resident and domiciliary of the
State of California and has committed no act that would
submit him to the personal jurisdiction of the courts of
Illinois." He further asserted that "the fiduciary
shield doctrine" prevented the court from asserting
jurisdiction over him based on acts he performed as
8 Attached to Malmstedt's motion was an affidavit in
which he averred that since he became a resident of
California in 1995, he has "never performed business, or
engaged in any transactions of any significance on [his] own
or for [his] own personal behalf or gain, in the State of
Illinois." He further averred: "I have never
appeared before this Court, as power of attorney to transact
the affairs of JAMES DIFIGLIO. Rather, on my way to Florida,
and at the request of JAMES DIFIGLIO because he was nervous
about Court and needed a ride from his residential placement
in Huntley, Illinois, I appeared to wheel him in and wheel
him out of the courtroom and never testified or acted in any
manner on behalf of JAMES DIFIGLIO."
9 Stanislawa filed a response to Malmstedt's motion to
dismiss, asserting that the Illinois court had jurisdiction
over Malmstedt, pursuant to section 2-209(a)(11) of the Code
of Civil Procedure (Code), because he breached his fiduciary
duties in this state. 735 ILCS 5/2-209(a)(11) (West 2014)
(Illinois courts have jurisdiction over a nonresident
defendant in an action arising from "[t]he breach of any
fiduciary duty within this State").
10 The trial court denied Malmstedt's motion to dismiss,
finding that "the Power of Attorney entered into between
JAMES DIFIGLIO & DAVID MALMSTEDT created a fiduciary duty
& relationship between DAVID MALMSTEDT & STANISLAWA
DIFIGLIO as stated on the record by way of Mr. Malmstedt
taking control of marital assets in which Stanislawa DiFiglio
has an interest as stated on Record."
11 Malmstedt filed a petition for leave to appeal, pursuant
to Illinois Supreme Court Rule 306(a)(3) (eff. Jan. 1, 2016),
contesting the trial court's denial of his motion to
dismiss Stanislawa's third-party complaint. We ...