STEVE MORROW, ERIC CHAMBLISS, REBECCA McGOWEN, GERARD BEACH, and MIDWEST GREYHOUND ADOPTION, INC., Plaintiffs,
RINA PAPPAS, SHANE BURROWS, KEVIN DENNIS STEWARD, THE FIRST NATIONAL BANK OF OTTAWA, and JOHN CANTLIN, Defendants Steve Morrow, Eric Chambliss, Rebecca McGowen, and Gerald Beach, Plaintiffs-Appellants; Rina Pappas, Shane Burrows, Kevin Dennis Steward, and The First National Bank of Ottawa, Defendants-Appellees.
from the Circuit Court of La Salle County, No. 13-L-118; the
Hon. Troy Holland, Judge, presiding.
Channing B. Hesse and Amy G. Grogan, of Garelli Grogan Hesse
& Hauert, of Elmhurst for appellants.
William W.P. Atkins and Robert J. Hills, of Johnson, Bunce
& Noble, P.C., of Peoria, for appellee Shane Burrows.
J. Schweickert, of Schweickert & Ganassin LLP, of Peru,
for appellee Rina Pappas.
Michael L. Resis and Ellen L. Green of SmithAmundsen LLC, of
Chicago, for other appellees.
JUSTICE O'BRIEN delivered the judgment of the court, with
opinion. Justice Lytton concurred in the judgment and
opinion. Presiding Justice Holdridge dissented, with opinion.
1 After the trial court's granting of defendants'
motions for summary judgment, plaintiffs appeal, arguing
several points of error by the trial court, namely (1)
granting defendants' motions for summary judgment; (2)
the trial court's discovery rulings involving a denial of
plaintiffs' motion to compel, subpoenaed cell phone
records, the entry of a protective order, and the trial
court's failure to apply the Dead Man's Act; (3) the
trial court's dismissal of plaintiffs' claims for
conspiracy and fraud; and (4) the trial court's refusal
to issue sanctions to defendants. We affirm the trial
court's ruling on all issues raised.
3 Decedent Dorelle Denman executed a will on March 27, 2012
(March Will). She named plaintiffs Steve Morrow, Eric
Chambliss, Rebecca McGowen, Gerard Beach, and Midwest
Greyhound Adoption, Inc. (Midwest), as beneficiaries.
Defendant Shane Burrows was also named as a beneficiary. John
Cantlin, the attorney who drafted the will, was identified as
executor of the March Will. Cantlin also acted as
Denman's power of attorney over property. Denman executed
a subsequent will on September 13, 2012 (September Will).
That will removed the prior beneficiaries Morrow, Chambliss,
McGowen, Beach, and Midwest, and instead named Rina Pappas
and Burrows as beneficiaries, and appointed the First
National Bank of Ottawa (FNB) as executor under the September
Will. Kevin Steward, a trust officer of FNB, managed all of
Denman's business affairs. Burrows is the only defendant
who was named under both the March Will and the September
4 Denman owned and operated several businesses: Willows Hotel
and two bed and breakfast establishments, Landers House and
Bear Creek Lodge. Pappas was an employee of Denman's and
managed the Bistro, a restaurant located in Willows Hotel. On
May 12, 2012, Denman fell and broke her hip and was admitted
to St. Margaret's Hospital. Her health worsened, and she
was transferred to Manor Court on May 18, 2012. She remained
at Manor Court for a month, until she was stable enough to
return home. She then returned to the hospital on June 27,
2012, after being found nearly unresponsive at her home.
Denman was transferred between hospitals and rehabilitation
facilities for a period of time until August 2012. On August
15, 2012, Denman met with Cantlin and Steward to talk about
her business affairs generally.
5 On August 29, 2012, while at Illinois Valley Community
Hospital, Denman instructed a nurse to contact Steward.
Denman spoke with Steward over the phone and advised him of
several changes she wanted to make to her will. Later that
same day, Steward, Cantlin, and another attorney, Joseph
Cantlin, met with Denman to discuss the changes that she
wanted to make to her will. They discussed her properties,
her debts, and the extent that her property should be divided
among Pappas and Burrows. Denman did not indicate to the
Cantlins or to Steward that she was being pressured to change
her will, and she did not indicate that she was influenced by
anyone to make changes to her will. Cantlin testified that
during this meeting she appeared lucid, competent, and
rational and knew exactly what she wanted to do regarding her
estate plan. After discussing these changes, Cantlin advised
Denman that they would redraft the will and bring it back for
execution on the next day. However, her health condition
worsened, and the new draft was not immediately executed.
6 On September 13, 2012, Denman contacted Steward and told
him that she wanted to get her affairs in order and sign her
new will. The Cantlins were not available to preside over the
execution of the revised will. Instead, Steward retrieved the
revised will from Cantlin's office and took it to Denman.
The same day, Dr. Shawn Bailey met with Denman to discuss
executing a do not resuscitate order (DNR). In his
deposition, Bailey testified he met with Denman for a period
between 5 to 10 minutes, and Bailey further testified that
she was alert, competent, aware of her physical health, and
was able to understand and articulate her wishes about her
end of life care. On September 13, 2012, a DNR was executed,
signed by Denman and Bailey. In his deposition testimony,
Bailey explained that Denman had emphysema and chronic
obstructive pulmonary disease (COPD), which could lead to
instances of hypoxia and encephalopathy (confusion from lack
of oxygen). Descriptions of "delirium" or
"altered mental state" in Denman's medical
records would be similar to a notation of encephalopathy.
Once Denman received oxygen, her condition would improve. She
did not exhibit delirium, dementia, or altered mental status
when he saw her. In his professional opinion, Denman was
competent and capable of making decisions on September 13,
7 Shortly after the DNR was executed, Steward arrived and
went to Denman's room where he went over the substantive
provisions of the will and the changes that were implemented.
Denman expressed to Steward that the changes reflected what
she desired. Cantlin had instructed Steward on how to review
and execute the new will with Denman. Two witnesses, Mark
Seidel and Vicki Gomez, were then brought into the room to
witness the execution of the will. Steward then asked Denman
a series of questions in front of the witnesses to assess her
understanding and determined that Denman had testamentary
capacity to sign the will. Witness Seidel, when presented
with this lawsuit, attested that his authentic signature
appears on Denman's September Will. Seidel attested that
he has no recollection of witnessing the will. He testified,
however, that he was at the Manor Court facility visiting
family and friends and that he takes medication that
sometimes causes memory problems. The other witness, Gomez,
testified that Denman had no difficulty in understanding the
execution of the will, that she gave appropriate answers, and
understood what was happening. On September 13, 2012, the
will was signed by Denman and witnessed. On September 25,
2012, Denman passed away, and the September Will was filed in
the probate court on September 26, 2012.
8 Plaintiffs filed their original complaint on September 24,
2013. They alleged intentional interference with testamentary
expectancy, conspiracy, fraud, malpractice, and breach of
fiduciary duty. They filed an amended complaint on October
27, 2013, and a second amended complaint on January 29, 2014.
The second amended complaint involved eight counts: counts
I-IV involved claims of intentional interference with
testamentary expectancy (count I v. Pappas, count II v.
Burrows, count III v. Cantlin, count IV v. Steward and FNB).
Count V included a claim of conspiracy to commit intentional
interference with testamentary expectancy, and count VI
included a claim for fraud against all the defendants. In
count VII, a claim for legal malpractice was alleged against
Cantlin, and count VIII alleged a breach of fiduciary duty
against Steward and FNB. All defendants filed motions to
dismiss the complaint. On April 28, 2014, the trial court
granted motions to dismiss the conspiracy (V), fraud (VI),
and breach of fiduciary duty (VIII) counts. It denied the
motions to dismiss the other counts (I-IV, VII). The
plaintiffs were granted 28 days to replead.
9 In the third amended complaint, the plaintiffs maintained
their counts of intentional interference with testamentary
expectancy against Pappas (count I), Burrows (count II),
Cantlin (count III), and Steward and FNB (count IV) but added
a request for punitive damages in each of those counts.
Counts V, VI, and VIII, which had been previously dismissed
by the trial court, remained in the complaint but were in
strike-through format with no new allegations concerning
those claims. The only changes made to the new complaint
sought punitive damages and omitted prior claims for attorney
fees. In June 2014, all defendants filed motions for
dismissal pursuant to section 2-615 of the Code of Civil
Procedure (735 ILCS 5/2-615 (West 2014)). On July 31, 2014,
the trial court entered an order denying all motions for
dismissal as to counts I-IV.
10 As discovery ensued, answers were filed and depositions
took place. Discovery was served on defendants, and
plaintiffs filed a motion to compel directed against Steward
and FNB, arguing that they improperly claimed attorney-client
privilege in refusing to comply with their discovery requests
for information regarding Denman's estate. On June 18,
2015, the trial court denied plaintiffs' motion to compel
and motion for sanctions against FNB and Steward. FNB and
Steward's motion to quash a subpoena for Steward's
personal cell phone records was "denied but" was
"modified" as follows: the records were to be
reviewed in camera and the parties were to
"enter into a protective order to ensure the privacy of
individuals is maintained."
11 On July 10, 2015, the trial court granted Steward's
motion for a protective order without modification.
Thereafter, the defendants each moved for summary judgment.
Attached to Steward and FNB's motion were the deposition
testimonies of Steward, Cantlin, Bailey, Gomez, and Seidel.
Cantlin's motion for summary judgment as to counts III
(intentional interference) and VII (legal malpractice) was
granted on March 21, 2016. On June 10, 2016, the trial court
granted the remaining defendants' motions for summary
judgment. The plaintiffs moved to reconsider. The trial court