from Circuit Court of Cass County No. 11CH23 Honorable Bob G.
Hardwick, Jr., Judge Presiding.
PRESIDING JUSTICE HARRIS delivered the judgment of the court,
with opinion. Justices Holder White and Steigmann concurred
in the judgment and opinion.
1 Defendant, Patricia Noltensmeier, appeals from the trial
court's order granting summary judgment in favor of
plaintiffs, Kenny Collins and Linda Richard, who had sued
defendant for a breach of fiduciary duty and conversion.
Defendant claims she had the authority pursuant to a power of
attorney for property to change decedent's beneficiaries
from plaintiffs to herself. We affirm.
2 I. BACKGROUND
3 Defendant and Billy D. Collins were involved in a long-term
romantic relationship when Billy died on January 23, 2011, at
his home from a recently diagnosed terminal illness.
Defendant had acted as Billy's caretaker. Approximately
one week before he died, Billy executed a will and an
Illinois Statutory Short Form Power of Attorney for Property.
Each document was a preprinted form containing handwritten
inserts in the blanks.
4 Billy's power of attorney, dated January 16, 2011,
appointed defendant as his agent. Paragraph three of the
document indicated the agent had the following powers, in
addition to those listed previously: "power to make
gifts, exercise powers of appointment, name or change
beneficiaries under any beneficiary form or contractual
5 Billy's will, also dated January 16, 2011, named
defendant, his "domestic partner, " as the sole
beneficiary of his real property, personal property, and the
"rest, residue, and remainder" of his estate. He
also named defendant as his executor.
6 Defendant filed Billy's will with the Cass County
circuit court in March 2011. In May 2011, plaintiff Kenny
Collins, Billy's brother, filed a petition to contest the
validity of Billy's will in Cass County case No. 11-P-15,
alleging Billy was of unsound mind, subjected to undue
influence from defendant, and not told the document he was
signing was a will.
7 Kenny and plaintiff Linda Richard, Billy's niece, filed
a three-count complaint in the cause before us, alleging
defendant (1) breached her fiduciary duty owed to Billy, (2)
wrongfully converted Billy's individual retirement
account (IRA) funds to herself, and (3) did so intentionally,
willfully and wantonly, and with malice, and therefore was
responsible for punitive damages. The case sat dormant for
approximately four years.
8 In April 2015, plaintiffs filed a first amended complaint,
alleging the same causes of action with the exception of the
claim for punitive damages, which plaintiffs abandoned.
Plaintiffs alleged defendant wrongfully and without
authorization changed the beneficiary of Billy's IRA,
valued at approximately $45, 000, from plaintiffs to herself.
Defendant had completed the bank's change-of-beneficiary
form by using her authority as the agent for Billy.
9 In May 2016, plaintiffs filed a motion for summary
judgment, alleging defendant had engaged in fraudulent
self-dealing. Plaintiffs claimed defendant breached her
fiduciary duty because the added language in section three of
the power of attorney did not authorize her to make the
change of beneficiary to herself.
10 In July 2016, the trial court conducted a hearing on
plaintiffs' motion for summary judgment. Both parties
represented they had found no Illinois cases on point.
Plaintiffs cited Bienash v. Moller, 721 N.W.2d 431
(S.D. 2006), a South Dakota case where, under similar factual
circumstances, the court held that a power of attorney failed
to specifically include language permitting the agent to name
himself as a beneficiary. Therefore, the court held, the
agent had breached his fiduciary duty to the principal by
engaging in self-dealing. Bienash, 721 N.W.2d at
11 In August 2016, the trial court entered a written order,
granting plaintiffs' motion, finding no disputed facts
remained, and holding, as a matter of law, that plaintiffs
were entitled to a judgment in their favor. The court held:
"The power of self-dealing, i.e., to change the
beneficiary to herself, was not included in paragraph [three]
and defendant was therefore not entitled to make that change.
The original designation of beneficiary form *** remains
valid and [plaintiffs] are each 50% beneficiaries of that
[IRA] at Petefish, Skiles and Company Bank."
12 In September 2016, defendant filed a motion to reconsider,
claiming the trial court had overlooked or failed to
recognize the added language in paragraph three, which,
according to her, specifically authorized her to change the