BRET D. JOHNSON and SEAN B. JOHNSON, Plaintiffs,
STOJAN LAW OFFICE, PC. and CLARK J. S TOJ AN, Defendants-Appellees. Bret D. Johnson, Plaintiff-Appellant.
from the Circuit Court of the 14th Judicial Circuit, Rock
Island County, Illinois. Circuit No. 14-L-90 Honorable Joseph
F. Fackel Judge, Presiding.
O'BRIEN JUSTICE delivered the judgment of the court, with
opinion. Presiding Justice Carter and Justice McDade
concurred in the judgment and opinion.
1 Plaintiff Bret Johnson brought this legal malpractice
action against defendants Stojan Law Office, P.C., and Clark
Stojan (collectively, Stojan), which had drafted trust
documents and a trust amendment for Johnson's mother,
Jean Sztajer. The complaint alleged Stojan breached various
duties it owed Johnson, who had been a successor co-trustee
of the trust. Stojan moved for summary judgment, arguing it
had no duty to Johnson. The trial court denied the motion,
but on reconsideration, granted summary judgment in
Stojan's favor, finding Stojan owed no duty to Johnson.
The trial court also denied Johnson's motion for leave to
file a second amended complaint. Johnson appealed. We affirm.
3 Jean Sztajer, mother of Sivi Polit and plaintiffs Bret
Johnson and Sean Johnson, retained defendants Clark Stojan
and Stojan Law Office to draft a living trust. Sztajer
executed the trust on May 31, 2001. The trust provided, in
part, that Sztajer had the right to amend or modify its terms
without the consent of any trustee or beneficiary. It granted
the trustee the authority to appoint an agent or
attorney-in-fact with all the powers of the trustee. The
trust provided the grantor the right to remove any trustee
and appoint successor trustee(s), with written notice to the
trustee(s) to be removed and appointed. The trust named
Sztajer's three children as successor co-trustees in the
event of Sztajer's death, incompetency, disability, or
other inability to act.
4 Sztajer retired in 2008 from her position as a professor of
accountancy at Augustana College. She started to suffer from
cognitive deficits, which worsened over the years. In January
2010, she was evaluated by a clinical neuropsychologist, who
diagnosed Sztajer with mild stage Alzheimer's disease and
referred her for another evaluation in a year. In August
2010, Sztajer's primary doctor diagnosed her as suffering
from "Alzheimer's Dementia with Behavioral
Disturbance." On November 12, 2010, Sztajer executed a
special power of attorney for property, which Stojan drafted,
naming Polit as Sztajer's agent as trustee of the trust.
The family began discussing Sztajer's care around
Thanksgiving 2010, and discussions continued into the new
year. In January 2011, it was decided that Polit should take
over Sztajer's care. A series of emails documents the
conversations between Sztajer's children and Stojan
regarding this decision. As part of the plan, Sztajer moved
in with Polit in February 2011, with Polit to be paid from
the trust for her caregiver services.
5 A January 2011 follow-up evaluation by the clinical
neuropsychologist indicated that Sztajer had experienced
"significant decline in memory, naming, and visuospatial
skills" from the visit a year earlier but the impairment
in Jean's executive functioning had not changed from the
prior January 2010 visit. Profound impairment in Jean's
episodic memory was noted.
6 On March 23, 2011, Sztajer visited Stojan and executed an
amendment to the trust, which removed Sean Johnson and Bret
Johnson as successor co-trustees and named them as second
successor co-trustees. Sivi was named the sole successor
trustee. Sztajer also signed a letter of direction to Polit
concerning trust distributions. Stojan signed an affidavit
averring that he drafted the letter of direction and trust
amendment at Sztajer's direction, that he discussed the
documents in confidence directly with Sztajer, and that Polit
played no role in preparing the documents. In his deposition,
Stojan stated that Sztajer told him she was concerned about
her sons' response to the changes in the trust and she
asked him not to inform them of the changes. According to
Stojan, Sztajer was competent to conduct her affairs on March
23, 2011. Polit also testified at her deposition that she had
no concerns about Sztajer's competency in March 2011. The
doctor treating Sztajer for her Alzheimer's disease
opined, following an evaluation in May 2011, that Sztajer was
competent to make significant life decisions.
7 In late 2012, Johnson and his brother began to question
disbursements from the trust. They complained to the Illinois
Department on Aging, and in early 2013, an investigation into
financial exploitation was conducted. The investigation
terminated for lack of sufficient evidence. Sztajer died on
November 6, 2013. In July 2014, Johnson and his brother filed
this action, alleging professional negligence and common law
fraud. In January 2015, they filed a first amended complaint,
alleging legal malpractice against Stojan and Stojan Law.
Stojan moved for dismissal, arguing it owed no duty to
Johnson and his brother. The trial court denied the motion,
and the case was consolidated for discovery purposes with a
separate action filed by Johnson and his brother against
Polit. In April 2016, Sean Johnson was dismissed from this
case with prejudice.
8 In May 2016, Stojan moved for summary judgment. Following a
hearing, the trial court denied Stojan's motion. Stojan
moved for reconsideration, which the trial court granted. The
court entered summary judgment in favor of Stojan, finding
Stojan did not owe a duty to Johnson. Johnson moved for
reconsideration of the summary judgment order and sought
leave to file a second amended complaint. The second amended
complaint included a legal malpractice count and added a
count for financial exploitation of an elderly person. The
trial court denied both motions. Johnson appealed.
10 On appeal, Johnson argues that the trial court erred when
it granted summary judgment in favor of Stojan and when it
denied his motion for leave to file a second amended
complaint. We first review the trial court's grant of
summary judgment. Johnson argues that there are genuine
issues of material fact precluding summary judgment,
including issues regarding Sztajer's competency, whether
Polit and Stojan acted in concert to deprive Johnson of his
inheritance, and Johnson's standing to bring a financial
exploitation claim against Stojan.
11 Summary judgment is properly granted when the pleadings,
depositions, admissions, and affidavits, if any, on file show
there is no genuine issue of any material fact and the movant
is entitled to judgment in his favor as a matter of law. 735
ILCS 5/2-1005(c) (West 2016). In determining a summary
judgment motion, the court construes the documents on file
liberally in favor of the non-movant and against the movant.
Morris v. Union Pacific R.R. Co., 2015 IL App (5th)
140622, ¶ 23. Whether a duty exists is a matter of law
and an appropriate issue for determination by summary
judgment. Barnett v. Zion Park ...