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The Conservatorship Estate of Black v. Black

Court of Appeals of Illinois, First District, First Division

June 28, 2019

THE CONSERVATORSHIP ESTATE OF JOANNE BLACK, Plaintiff-Appellee,
v.
BERNARD S. BLACK, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County No. 17 L 62055 The Honorable Jeffrey L. Warnick, Judge Presiding.

          JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Griffin and Walker concurred in the judgment and opinion.

          OPINION

          PIERCE JUSTICE

         ¶ 1 This appeal involves a foreign money judgment entered by the Denver Probate Court (the probate court) in Denver, Colorado. The probate court found that defendant Bernard S. Black, while acting as conservator for the estate of his sister Joanne Black, converted estate assets for his own benefit. The probate court entered a money judgment against defendant for over $4.3 million (foreign judgment). Joanne's estate then filed the foreign judgment in the circuit court of Cook County. Pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2016)), defendant filed a petition to vacate the filing of the foreign judgment, asserting that the probate court's judgment was void due to various alleged jurisdictional defects.

         ¶ 2 While the parties were litigating defendant's petition in the circuit court, the Colorado Court of Appeals affirmed the probate court's judgment and denied defendant's request for rehearing. Black v. Black, 2018 COA 7, 422 P.3d 592, cert. denied, 2018SC419 (May 20, 2019). The Cook County circuit court denied defendant's petition to vacate the filing of the foreign judgment, and defendant appeals. For the reasons that follow, we affirm the circuit court's denial of defendant's petition to vacate.

         ¶ 3 I. BACKGROUND

         ¶ 4 Defendant and his sister Joanne Black are the children of the late Renata Black, who died in May 2012. Renata's will provided that her estate assets would be divided into two trusts. Two-thirds of Renata's estate would be distributed to a "Supplemental Needs Trust" for the benefit of Joanne, who had been diagnosed with schizophrenia. One-third of Renata's estate would be distributed to a trust for defendant and his children. Defendant was appointed as the executor of Reneta's estate, the bulk of which consisted of accounts holding nearly $3.5 million. Defendant discovered that before Renata's death, she designated Joanne as the payable-on-death beneficiary of some of Renata's accounts, resulting in the assets in those accounts passing directly to Joanne rather than to the Supplemental Needs Trust.

         ¶ 5 At the time of Renata's death, Joanne was homeless in Colorado. In December 2012, defendant initiated a proceeding in the Denver Probate Court seeking appointment as conservator of Joanne's estate because her "mental illness interferes with her ability to manage her assets and income." The probate court appointed an attorney and a guardian ad litem for Joanne, and subsequently appointed defendant as Joanne's conservator. According to defendant, Joanne's attorney and the guardian ad litem both expressly consented to defendant's request that, as conservator, he be permitted to disclaim Joanne's interest in Renata's payable-on-death accounts. After a hearing, the probate court specifically authorized defendant "[t]o disclaim [Joanne's] interest as beneficiary under all payable on death or transferable on death accounts *** owned by *** Renata[.]" Defendant executed the disclaimer, which resulted in the assets in the payable-on-death accounts flowing through Renata's will, with two-thirds going to Joanne's Supplemental Needs Trust, and one-third going to the trust for the benefit of defendant and his children.

         ¶ 6 In February 2015, Joanne's counsel filed a motion in the probate court seeking to void the disclaimer. The motion asserted that defendant breached his fiduciary duties to Joanne by failing to disclose the effect of the disclaimer on Joanne's interest in the nearly $3.5 million in assets from Renata's accounts. At a status conference on the motion, the probate court ordered an independent accounting of Joanne's assets, scheduled an evidentiary hearing, and "advised the parties that it would consider whether 'disgorgement or unwinding of fiduciary actions' was appropriate." Black, 2018 COA 7, ¶ 16. On the day before the evidentiary hearing, the guardian ad litem filed a motion alleging that defendant's conduct amounted to civil theft under Colorado law and requested that the probate court award treble damages pursuant to Colorado's civil theft statute. Id. ¶ 17. After the evidentiary hearing, the probate court concluded that defendant breached his fiduciary duties to Joanne while serving as the conservator of Joanne's estate by converting roughly $1.5 million of her assets for his own benefit. The probate court found that plaintiff was required to reimburse Joanne's estate for the amount that he converted, and that damages were trebled under Colorado's civil theft statute, resulting in a judgment of nearly $4.5 million. Id. ¶ 18. Defendant filed a timely notice of appeal in the Colorado Court of Appeals from the probate court's judgment.

         ¶ 7 On September 21, 2017, Joanne's conservatorship estate filed the foreign judgment in the circuit court of Cook County. On October 23, 2017, defendant filed a petition pursuant to section 2-1401 of the Code to vacate the filing of the foreign judgment as void. Defendant argued that the probate court lacked subject-matter jurisdiction to enter the foreign judgment because (1) Joanne's motion was not a "complaint" under the Colorado Rules of Civil Procedure; (2) the probate court was not empowered under the Colorado Constitution to adjudicate civil theft claims; (3) Joanne failed to give proper written notice of her claim for surcharge as required by Colorado statute; and (4) Joanne failed to file the correct motion to vacate the probate court's order authorizing defendant to execute the disclaimer. Defendant also argued that the probate court lacked personal jurisdiction over him because he was never served with a complaint or summons for civil theft or reimbursement. The parties briefed defendant's petition.

         ¶ 8 On January 25, 2018, the Colorado Court of Appeals affirmed the probate court's judgment in all respects. Relevant to the issues before us, the court of appeals found that (1) defendant had proper notice of the surcharge hearing (id. ¶ 26); (2) any defect in the notice of the surcharge hearing did not divest the probate court of subject-matter jurisdiction (id. ¶ 27); (3) defendant failed to disclose a conflicted transaction-i.e., the execution of the disclaimer-to the probate court and failed to demonstrate that the transaction was "reasonable and fair to Joanne" (id. ¶ 71); (4) the probate court had subject-matter jurisdiction to hear Joanne's civil theft claim (id. ¶ 78); (5) defendant had notice of Joanne's civil theft claim (id. ¶ 82); and (6) defendant waived or forfeited any challenge to the timing or form of Joanne's civil theft claim by failing to object in the probate court proceedings (id. ¶ 84). Defendant's petition for rehearing was denied on May 17, 2018.

         ¶ 9 On June 12, 2018, the circuit court denied defendant's petition to vacate the filing of the foreign judgment. The circuit court observed that the foreign judgment was presumed to be valid and that it was defendant's burden to rebut that presumption. Ace Metal Fabricating Co. v. Arvid C. Walberg & Co., 135 Ill.App.3d 452, 456 (1985). The circuit court found that it was "not unreasonable *** to place reasonable reliance on" the court of appeals's opinion, which directly addressed several of defendant's contentions. Defendant filed a timely notice of appeal in this court. Defendant also petitioned the Colorado Supreme Court for a writ of certiorari from the court of appeals's judgment in Black, which the Colorado Supreme Court denied on May 20, 2019.

         ¶ 10 II. ANALYSIS

         ¶ 11 At the outset, we note that portions of defendant's appellate brief violate Illinois Supreme Court Rule 341 (eff. May 25, 2018). First, Rule 341(h)(2) requires an appellant to include "[a]n introductory paragraph stating (i) the nature of the action and of the judgment appealed from and whether the judgment is based upon the verdict of a jury, and (ii) whether any question is raised on the pleadings and, if so, the nature of the question." Defendant's "Nature of the Action" section is a nine-paragraph argumentative screed spanning more than three pages. Both the length and argumentative nature of defendant's introductory paragraph violate Rule 341(h)(2). See Artisan Design Build, Inc. v Bilstrom, 397 Ill.App.3d 317, 321 (2009) (finding that a two-page introductory statement containing argument violates Rule 341(h)(2)). Second, defendant's statement of facts is argumentative, in violation of Rule 341(h)(6), which requires a statement of facts "stated accurately and fairly without argument or comment." Ill. S.Ct. R. 341(h)(6). Our supreme court's rules governing appellate briefs are mandatory. Hall v. Naper Gold Hospitality, LLC, 2012 IL App (2d) 111151, ΒΆ 7. A failure to comply with the rules runs the risk that this court will strike the offending portions ...


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