Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Scarpelli v. McDermott Will & Emery LLP

Court of Appeals of Illinois, First District, Third Division

June 27, 2018

FRANK J. SCARPELLI, JR., and MARGARET SCARPELLI, Plaintiffs-Appellants,
v.
MCDERMOTT WILL & EMERY LLP, Defendant-Appellee. ANNE-MARIE POINCELET, in Her Individual Capacity, as Beneficiary of the Pamela J. Poincelet Trust No. 1 and the Pamela J. Poincelet Irrevocable Trust No. 1, and as Trustee of the Pamela J. Poincelet Trust No. 1 and the Pamela J. Poincelet Irrevocable Trust No. 1, Plaintiff,
v.
FRANK J. SCARPELLI, JR., in His Individual Capacity and as Former Trustee of the Pamela J. Poincelet Trust No. 1 and the Pamela J. Poincelet Irrevocable Trust No. 1, and MARGARET O. SCARPELLI, in Her Individual Capacity, Defendants.

          Appeal from the Circuit Court of Cook County. Nos. 2016 L 8816 & 2015 CH 15087 The Honorable Celia G. Gamrath, Judge Presiding.

          JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Lavin concurred in the judgment and opinion.

          OPINION

          FITZGERALD SMITH, JUSTICE

         ¶ 1 Following the filing of individual and amended complaints by plaintiffs-appellants Frank J. Scarpelli Jr. and Margaret Scarpelli (plaintiffs or as named), defendant-appellee McDermott Will & Emery LLP (McDermott) filed a motion to dismiss them both pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2016)). The trial court granted defendant's motion with prejudice, based on the attorney litigation privilege. Plaintiffs appeal, contending that the trial court should not have applied the attorney litigation privilege to this cause as it does not cover prelitigation conduct, does not apply to the type of conduct they allege occurred, and leaves them with no recourse.[1] They ask that we reverse the trial court's dismissal of their claims with prejudice and for other relief this court deems fair and just. For the following reasons, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 This cause involves multiple underlying cases principally involving Frank, his wife Margaret, Anne-Marie Poincelet, and McDermott, Anne-Marie's attorney. However, the focus of the instant appeal revolves around intrusion upon seclusion claims brought separately by Frank and Margaret against McDermott and consolidated by our court. Anne-Marie is not a party to this appeal.

         ¶ 4 Frank and Anne-Marie are cousins. Their extended family developed several businesses, including many property companies and apartment complexes, with their principal place of business in Carpentersville, Illinois (Kane County). Frank worked for these family businesses. In 1994, Frank began helping Anne-Marie's mother, his aunt Pamela Poincelet, with the management of her personal properties and financial affairs. Eventually, Pamela formed two trusts. She named Frank as trustee of both of them, and she named Anne-Marie as her beneficiary. In subsequent years, Pamela named Frank as her agent and gave him power of attorney over her health care as well as her property. Pamela died in 2011, leaving Anne-Marie as her heir. Frank became the executor of Pamela's estate and, after her death, continued to act as trustee of her two trusts.

         ¶ 5 In early 2015, Anne-Marie confronted Frank and Margaret about missing funds in Pamela's accounts and trusts. Anne-Marie believed Frank and Margaret had misappropriated millions of dollars from them and used the proceeds for their personal benefit. The day after this confrontation, Frank was terminated from his employment at the family businesses. The locks in the offices were changed and Frank was not permitted to enter his office or the businesses' premises, where he kept various documents regarding Margaret and their personal affairs. Anne-Marie hired McDermott to represent her in investigating and potentially pursuing litigation concerning Frank and Margaret's alleged misappropriation. Frank hired attorney James Tunick to represent him.[2]

         ¶ 6 In March 2015, McDermott contacted Tunick to set up a meeting between Frank, Margaret, and Anne-Marie to discuss the missing money and attempt to settle the matter. A meeting was arranged for March 19, 2015, at McDermott's office. On that day, Frank and Margaret, along with Tunick, arrived at McDermott's building. According to Frank and Margaret's complaints, they were met by a man and escorted to a small room, where they met another man who was introduced to them as an "ex-FBI agent." While in this room with the door closed, the "ex-FBI agent" frisked Frank by patting him down and, with Margaret's permission, searched her purse. The men then escorted Frank, Margaret, and Tunick into a large conference room, where several McDermott attorneys were waiting for them. On the conference room table were stacks of documents, including drafts of deeds with legal descriptions of every property and home Frank and Margaret owned, trust papers, letters of direction, and assignments listing Frank and Margaret's banking institutions and bank account numbers.

         ¶ 7 During the meeting, Frank and Margaret were presented with a document drafted by McDermott, titled "Tolling & Asset Management Agreement" (Asset Agreement). This document stated that Frank and Margaret had the benefit of counsel of their choice and had been offered the opportunity to review the agreement with him, that Anne-Marie had certain potential legal claims against them for diversion or dilution of funds, that Frank and Margaret met with forensic accountants and admitted wrongdoing, and that the parties were exploring the possibility of settling these potential claims following a full accounting. The Asset Agreement prescribed that Frank and Margaret agreed not to "distribute, expend, or transfer any real or personal property" until all such claims were resolved to Anne-Marie's satisfaction. To effectuate this, the Asset Agreement provided that Frank and Margaret would put many of their assets, cash, and real property into two trusts: the Frank Scarpelli 2015 Special Trust, with Frank and Tunick as cotrustees, and the Margaret Scarpelli 2015 Special Trust, with Margaret and Tunick as cotrustees. It further provided that Anne-Marie would exercise certain supervisory controls over these trusts, including the power to veto any sale, exchange, or distribution of any trust asset; the power to appoint trustees; and the power to remove trustees without cause at any time. Finally, the Asset Agreement stated that Frank and Margaret agreed to pay all of Anne-Marie's costs in the matter, including attorney fees, investigative fees, and forensic accountant fees. Frank and Margaret were also given a copy of a document, titled "Verified Complaint," and told that someone from McDermott was waiting at the courthouse with instructions to file it if they did not immediately sign the documents in the conference room. With Tunick present, both Frank and Margaret signed all the documents presented to them that day, including the Asset Agreement.

         ¶ 8 Several months later, in October 2015, Anne-Marie, individually and as beneficiary and trustee of Pamela's trusts, filed a cause of action in the circuit court of Cook County against Frank and Margaret for breach of the Asset Agreement and for theft. McDermott represented Anne-Marie in the cause.

         ¶ 9 In response, in November 2015, Margaret filed a separate cause of action in the circuit court of Kane County against Anne-Marie and McDermott. In December 2015, Frank did the same, filing a substantially similar (but separate) cause of action in that same court against Anne-Marie and McDermott. Count I of their complaints was asserted against Anne-Marie only and sought declaratory judgment that the documents from the March 19 meeting were invalid and unenforceable because Frank and Margaret signed them under duress. Count II of their complaints, directed at both Anne-Marie and McDermott, alleged conversion/trespass to chattels and claimed that Anne-Marie "and/or someone acting on her behalf" obtained their "private and/or confidential information" and that McDermott maintained possession and exercised unauthorized control over it. And, count III of their complaints, also directed against both Anne-Marie and McDermott, alleged intrusion upon seclusion and claimed that Anne-Marie and McDermott intentionally intruded upon their private affairs and misappropriated this information to compel them to sign the March 19 documents.

         ¶ 10 Anne-Marie and McDermott moved the circuit court of Kane County to dismiss plaintiffs' causes of action or to transfer them to Cook County, where Anne-Marie's claim against plaintiffs was pending. In response, Margaret voluntarily agreed to transfer count I (declaratory judgment as against Anne-Marie only) of her complaint to the circuit court of Cook County, and voluntarily dismissed count II (conversion/trespass as against Anne-Marie and McDermott) of her complaint with prejudice, leaving, as to McDermott, only Count III (intrusion upon seclusion) in Kane County. Eventually, the circuit court of Kane County transferred both plaintiffs' causes in their entirety to Cook County, where they were consolidated with Anne-Marie's initial cause.

         ¶ 11 McDermott moved to dismiss both Frank's and Margaret's count III of intrusion upon seclusion as against it.[3] Following argument-which centered extensively around the case of O'Callaghan v. Satherlie, 2015 IL App (1st) 142152, and the attorney litigation privilege- the trial court granted McDermott's motion, with prejudice. The trial court found several points of O'Callaghan critical to the instant cause, including its interpretation that the attorney litigation privilege is "absolute," irrespective of motive, and that "no liability will attach even at the expense of an uncompensated harm" to a plaintiff. The trial court further declared that O'Callaghan "makes it clear" that both attorney conduct and communications are covered, so long as they "relate to proposed or pending litigation" and are "in furtherance of representation." Then, in applying O'Callaghan to the instant cause, the trial court declared that, from the pleadings, it was "clear that any conduct or actions that the law firm of McDermott took was in furtherance of representation of Anne-Marie Poincelet and it was in connection with proposed or imminently pending litigation," with any doubts as to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.