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Donkle v. Lind

Court of Appeals of Illinois, First District, Fourth Division

June 28, 2018

MICHELE PRANNO DONKLE, Plaintiff-Appellant,
v.
CARY A. LIND and CARY A. LIND, PC, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County. No. 16 L 007274 The Honorable William E. Gomolinski, Judge Presiding.

          JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.

          GORDON JUSTICE

         ¶ 1 The instant appeal arises from a legal malpractice lawsuit filed by plaintiff Michele Pranno Donkle against attorney defendants Cary A. Lind and Cary A. Lind, P.C., in which plaintiff alleges that defendants owed plaintiff a duty to inform her of a claim plaintiff had against her mother's estate during the course of defendants' representation of plaintiff with respect to a lawsuit filed by plaintiff's sister. Defendants filed a motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2619 (West 2016)), claiming that defendants represented plaintiff only in her capacity as trustee of her mother's trust and did not represent plaintiff in her individual capacity meaning that defendants had no duty to inform plaintiff of her individual claim against the estate. The trial court granted defendants' motion to dismiss, and for the reasons that follow, we affirm the trial court's judgment.

         ¶ 2 BACKGROUND

         ¶ 3 I. Complaint

         ¶ 4 A. Allegations of Complaint

         ¶ 5 On July 22, 2016, plaintiff filed a complaint for legal malpractice against defendants; the complaint was amended on March 21, 2017. It is the amended complaint that is the subject of the instant appeal. The amended complaint alleges that plaintiff is the daughter of Louise J. Pranno, now deceased, and is the successor trustee to the Amended First Restatement of the Louise J. Pranno Trust, dated January 27, 1998 (the trust). For at least five years prior to the death of her mother, plaintiff provided personal care to her mother, who was completely disabled and required assistance with most of her activities of daily living, which caused plaintiff "significant financial[ ] and professional hardship and was done at a significant personal sacrifice to Plaintiff." Although plaintiff resided with her husband in a home in Libertyville, when her mother became unable to care for herself, plaintiff began living in her mother's home and apart from her husband, which continued for six to seven years while plaintiff cared for her mother.

         ¶ 6 The amended complaint alleges that plaintiff "was the nominated executor of Louise J. Pranno Will dated March 30, 2007 if the will was admitted to probate and her probate estate administered." The amended complaint further alleges that, at all relevant times, the Probate Act of 1975 (Probate Act) contained a provision permitting a statutory custodial claim against a decedent's estate for "[a]ny spouse, parent, brother, sister, or child of a disabled person who dedicates himself or herself to the care of the disabled person by living with and personally caring for the disabled person for at least 3 years." 755 ILCS 5/18-1.1 (West 2012).

         ¶ 7 The amended complaint alleges that Louise J. Pranno died on September 16, 2013, and on September 23, 2013, plaintiff's sister filed suit against plaintiff in the circuit court of Cook County in an action captioned "Faith Mary Pranno v. Michele J. Pranno Donkle, as Successor Trustee to the Amended First Restatement of the Louise J. Pranno Trust dated January 27, 1998" (the underlying litigation).[1] According to the amended complaint, "[t]he allegations of the underlying Chancery Action related to Plaintiff's conduct of her duties as the Successor Trustee and Executor of Louise Pranno's will. Specifically, Plaintiff's sister alleged that Plaintiff improperly distributed the assets of the Estate and otherwise was committing waste as to the Estate property." The amended complaint further alleges that

"[t]he Chancery Action sounded in claims for breach of fiduciary duty, redistribution of a beneficial interest, injunctive relief, and seeking an accounting. [Citation.] The Chancery Action sought to 're-marshal and reallocate the distribution of tangible personal property and property owned by Decedent', which would have necessitated the disgorgement of property and funds from Plaintiff, in her personal capacity, as well as from the other beneficiaries. [Citation.] Further, the Chancery Action sought relief wherein Plaintiff (personally) was to pay the Trust the fair market value of the Trust's real property for the period of time that Plaintiff resided there, while she cared for her mother.[2] [Citation.]"

         (Emphasis in original.)

         ¶ 8 The amended complaint set forth a single count for legal malpractice, which included the allegation that "[i]n 2013, Plaintiff and Defendants entered into an attorney-client relationship wherein Defendants agreed to represent Plaintiff in the Chancery Action." The amended complaint alleges that the claims in the underlying complaint "effectively sought disgorgement and the re-allocation of assets from Plaintiff in her personal capacity, not solely in her capacity as a Trustee of the Trust." The amended complaint further alleges that "Defendants, in effect, undertook to represent Plaintiff in the defense of the Chancery Action both in Plaintiff's capacity as Trustee and in Plaintiff's individual capacity." According to the amended complaint, during the course of this representation, defendants failed to advise plaintiff that she could, in her individual capacity, seek recovery under the Probate Act for her statutory custodial claim and failed to advise plaintiff of the time limitations in making such a claim. Defendants also failed to advise plaintiff "that the filing of such a claim would reduce the litigation expense and provide for a superior settlement in the underlying Chancery Action." Accordingly, the amended complaint alleges that defendants breached the standard of care owed to plaintiff, causing plaintiff damages including the loss of the ability to recover compensation for the time and effort in providing care to her mother and additional litigation expenses incurred as a result of the underlying litigation.

         ¶ 9 B. Trust Agreement and Will

         ¶ 10 Attached to the amended complaint was a copy of the trust agreement, in which plaintiff was named as successor trustee. The trust agreement set forth several specific gifts, including a provision that, upon the decedent's death, her home "shall be sold as soon as is practical after my death" and that plaintiff was to receive 10% of the net proceeds of sale "for assisting me [to] maintain my home. This payment shall be in lieu of all fees for acting as successor trustee or executor of my estate." The trust agreement also granted plaintiff the right of first refusal to purchase the decedent's home from the trust or estate for fair market value at the time of the decedent's death. Other than the specific gifts, the trust agreement provided that the balance of the trust assets were to be equally distributed among the decedent's three children.

         ¶ 11 Also attached to the amended complaint was a copy of the decedent's will, which named plaintiff as the executor. The will provided that all of the property owned at the decedent's death would be ...


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