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Morrow v. Pappas

Court of Appeals of Illinois, Third District

October 30, 2017

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.

         Appeal 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.

          Scott 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.

          Panel 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.

         ¶ 2 FACTS

         ¶ 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 Will.

         ¶ 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, 2012.

         ¶ 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 ...

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