In re: Estate of Hoellen

Second Division
August 29, 2006

Nos. 1-05-0067 & 1-05-0090 cons.

IN RE ESTATE OF THEODORE HOELLEN, ) Appeal from the
a Disabled Person (Robert F. Harris, ) Circuit Court
Cook County Public Guardian, as ) of Cook County.
Guardian of the Estate and Person of )
Theodore Hoellen, )
)
Petitioner-Appellee )
)
v. ) No. 03 P 1918
)
Donald L. Owsley, ) Honorable
) Mary Ellen Coghlan
Respondent-Appellant). ) Judge Presiding

JUSTICE HALL delivered the opinion of the court:

In this consolidated appeal, respondent Donald L. Owsley

appeals from two orders entered by the probate court relating to

the estate of Theodore F. Hoellen. The first order was entered

in favor of the Public Guardian as guardian of the estate and

person of Hoellen and against respondent for nominal damages in

the amount of $1 and punitive damages in the amount of $50,000.

The second was a postjudgment order that, among other things,

granted respondent a time extension within which to post an

appeal bond covering the money damages portion of the first

order.

The record shows that respondent, a Chicago police officer,

first met Hoellen in the summer of 1999 when he responded to a 9-

1-1 call from Hoellen's neighbor after Hoellen mistakenly entered

the neighbor's home believing it was his home. After the

incident occurred, respondent began regularly visiting Hoellen at
1-05-0067 & 1-05-0090 (cons.)

his home. Hoellen's case was referred to the Public Guardian's

office based on allegations that respondent was financially

exploiting Hoellen, who lived alone and suffered from dementia.

On October 8, 2003, the Public Guardian filed a five-count

amended petition for issuance of a citation to recover assets

alleging that over the years, respondent had engaged in a course

of conduct designed to manipulate and financially exploit

Hoellen, an 89-year-old physically and mentally impaired senior

citizen who, it was argued, was unable to protect himself from

such exploitation.

In the citation petition, the Public Guardian presented

uncontroverted evidence that Hoellen was suffering from

progressive dementia and was incapable of making informed,

independent decisions regarding his personal finances at the time

respondent caused him to: designate respondent as primary

beneficiary of his Chicago Transit Authority (CTA) retirement

death benefit, designate respondent as beneficiary of a $50,000

certificate of deposit held at Banco Popular, execute powers of

attorney for health care and property naming respondent as agent;

execute a trust document known as the "Theodore Hoellen Trust,"

under which respondent would receive Hoellen's entire trust

estate, both real and personal, including all amounts added to

the trust through Hoellen's last will and testament.

After conducting an evidentiary hearing and hearing argument

on the citation petition, the probate court concluded that

-2-
1-05-0067 & 1-05-0090 (cons.)

respondent had used his position as a Chicago police officer to

gain Hoellen's trust, exert undue influence over him, and then

flagrantly and intentionally breach the fiduciary duty he owed

him by virtue of a power of attorney. As a result, the probate

court invalidated all of respondent's interests in Hoellen's

estate: quitclaim deeds, CTA pension, certificate of deposit at

Banco Popular, and the trust.

The probate court then awarded the Public Guardian nominal

damages in the amount of $1 and punitive damages in the amount of

$50,000. The probate court reasoned that punitive damages were

warranted not only to punish respondent for violating his

fiduciary duty to Hoellen but also to deter other individuals

holding positions of public trust from financially exploiting

vulnerable senior citizens.

On appeal, respondent contends that: (1) the probate court

erred in denying his motion for substitution of judge as of

right; (2) the probate court erred in denying his motion for

substitution of judge for cause; (3) the probate court erred in

not requiring the Public Guardian and certain Hoellen family

members from responding to his request to admit facts and the

genuineness of specified documents pursuant to Supreme Court Rule

216 (134 Ill. 2d R. 216); and (4) the probate court erred by

entering a judgment against him for nominal and punitive damages.

For the reasons that follow, we affirm.

-3-
1-05-0067 & 1-05-0090 (cons.)

ANALYSIS

As a preliminary matter we address the jurisdictional issue

raised by the Public Guardian. The Public Guardian contends that

respondent's notice of appeal only refers to the money damages

portion of the probate court's order and therefore our

jurisdiction is limited to that portion of the order and does not

extend to the issues respondent now raises on appeal which would

result in a new trial. The Public Guardian maintains that

respondent's notice of appeal indicates he was only seeking

reversal of the money damages portion of the order where the

notice specifically refers to money damages but excludes any

mention of Hoellen's estate assets. We disagree.

Supreme Court Rule 303(b)(2) (155 Ill. 2d R. 303(b)(2)),

which governs the form and content of a notice of appeal, states

in relevant part that a notice of appeal "shall specify the

judgment or part thereof or other orders appealed from and the

relief sought from the reviewing court." Nowhere in the rule is

there a requirement that an appellant specifically set forth in

the notice of appeal each and every issue he wishes to appeal.

On the contrary, our supreme court has determined that the

briefs, and not the notice of appeal itself, specify the precise

issues to be relied upon for reversal. Burtell v. First Charter

Service Corp., 76 Ill. 2d 427, 433, 394 N.E.2d 380 (1979).

The purpose of a notice of appeal is to inform the party

prevailing in the trial court that the unsuccessful party seeks

-4-
1-05-0067 & 1-05-0090 (cons.)

review of the judgment. Burtell, 76 Ill. 2d at 433. Notices of

appeal are to be liberally construed. In re Marriage of Goldberg,

282 Ill. App. 3d 997, 1001, 668 N.E.2d 1104 (1996). As a result

of this liberal construction, a notice of appeal will be deemed

sufficient to confer appellate jurisdiction when, considered as a

whole, it advises the successful party of the nature of the

appeal by fairly and adequately setting out the judgment

complained of and the relief sought. Burtell, 76 Ill. 2d at 433-

34. Where the deficiency in a notice of appeal is one of form

rather than substance and the appellee is not prejudiced, the

absence of strict compliance with form is not fatal. Burtell, 76

Ill. 2d at 434.

Respondent's notice of appeal is sufficient under these

principles. The notice states that respondent is appealing from

"the order entered on December 28, 2004, which, inter alia, made

final the 11-page judgment 'Order' entered against him by the

Probate Division of the Circuit Court of Cook County on December

10, 2004. Said 11-page judgment Order entered a judgment against

[respondent] for the sum of one dollar ($1.00) in compensatory

damages and the sum of fifty thousand dollars ($50,000) in

punitive damages." The notice goes on to state that respondent

is "requesting that the circuit court be reversed and, if

necessary, that the cause be remanded to that court with

directives consistent with such disposition, and for any other

and further relief to which she [sic] may be entitled."

-5-
1-05-0067 & 1-05-0090 (cons.)

Respondent's notice of appeal puts the Public Guardian on

notice that he is appealing from the "11-page judgment 'Order'"

entered against him by the probate court on December 10, 2004.

The notice also sets forth the relief sought. Moreover, the

Public Guardian does not claim any prejudice by the allegedly

defective notice of appeal. In sum, this court's jurisdiction is

not limited to the money damages portion of the trial court's

order entered on December 10, 2004.

In another preliminary argument, the Public Guardian

contends that respondent should be barred by the doctrine of

judicial estoppel from requesting a complete reversal of the

probate court's finding since he represented at the appeal bond

hearing that he was only appealing the money damages award.

Again, we must reject the Public Guardian's argument.

Judicial estoppel is an equitable common law doctrine

designed to protect the integrity of the judicial process by

preventing a party who has successfully maintained a position in

one legal proceeding from asserting a contrary, inconsistent

position in a subsequent proceeding in order to receive favorable

judgments in each proceeding. Ceres Terminals, Inc. v. Chicago

City Bank & Trust Co., 259 Ill. App. 3d 836, 849-50, 635 N.E.2d

485 (1994). Illinois courts have set forth five elements as

necessary to successfully assert judicial estoppel: (1) the party

to be estopped must have taken two positions; (2) the positions

must have been taken in judicial or quasi-judicial administrative

-6-
1-05-0067 & 1-05-0090 (cons.)

proceedings; (3) the positions must be given under oath; (4) the

party must have successfully maintained the first position and

received some benefit thereby; and (5) the two positions must be

totally inconsistent. Ceres Terminals, Inc., 259 Ill. App. 3d at

851.

Respondent maintains that judicial estoppel does not apply

in this case because the position he took at the appeal bond

hearing is not inconsistent with the position he now takes on

appeal and therefore element five has not been established. We

agree.

Review of the record indicates that at the appeal bond

hearing respondent sought a time extension within which to post

an appeal bond covering the money damages portion of the order,

not because he was only appealing from that portion of the order,

but because he was seeking a stay of the money judgment, which

was the only part of the order that required such surety. The

bond requirement applicable to money judgments is set forth in

subparts (a) and (b) of Supreme Court Rule 305 (155 Ill. 2d Rs.

305(a), (b)). Rule 305(a) automatically grants a stay of

enforcement of money judgments if its procedures are followed,

and Rule 305(b) allows a discretionary stay of enforcement of

money judgments. See Stacke v. Bates, 138 Ill. 2d 295, 303, 562

N.E.2d 192 (1990). Requiring an appellant to post an appeal bond

gives a judgment creditor security during the pendency of the

appeal by ensuring that if the judgment is affirmed, the judgment

-7-
1-05-0067 & 1-05-0090 (cons.)

creditor will be paid that which is owed. Bricks, Inc. v. C & F

Developers, Inc., 361 Ill. App. 3d 157, 162, 836 N.E.2d 743

(2005). Judicial estoppel does not apply in this case.

Turning to the merits, respondent maintains that the probate

court erred in denying his motions for substitution of judge as a

matter of right and for cause. We must reject respondent's

contentions.

Pursuant to section 2-1001(a)(2) of the Illinois Code of
1
Civil Procedure (Code) (735 ILCS 5/2-1001(a)(2) (West 2000)) , a
civil litigant is entitled to one substitution of judge without

1
Effective January 1993, the legislature amended section 2-

1001 of the Code and added section 2-1001.5 to distinguish

between "substitution of judge" and a "change of venue." Pub. Act

87-949, ' 1, eff. January 1, 1993. Case law published prior to

January 1993 uses the terms "substitution of judge" and "change

of venue" interchangeably. See In re Marriage of Abma, 308 Ill.

App. 3d 605, 609, 720 N.E.2d 645 (1999).

-8-
1-05-0067 & 1-05-0090 (cons.)

cause as of right. However, to prohibit litigants from "judge

shopping" and seeking a substitution only after they have formed

an opinion that the judge may be unfavorably disposed toward the

merits of their case, a motion for substitution of judge as of

right must be filed at the earliest practical moment before

commencement of trial or hearing and before the trial judge

considering the motion rules upon a substantial issue in the

case. In re Estate of Gay, 353 Ill. App. 3d 341, 343, 818 N.E.2d

860 (2004).

A trial court's ruling on a discovery motion is considered

"substantial" when it pertains to evidentiary matters and reveals

the court's interpretation of a supreme court rule or the court's

opinion as to the admissibility of extrinsic evidence. Kochan v.

Owens-Corning Fiberglass Corp., 242 Ill. App. 3d 781, 793, 610

N.E.2d 683 (1993); Bonnie Owen Realty, Inc. v. Cincinnati

Insurance Co., 283 Ill. App. 3d 812, 822, 670 N.E.2d 1182 (1996);

City of Granite City v. House of Prayers, Inc., 333 Ill. App. 3d

452, 461, 775 N.E.2d 643 (2002). Review is de novo, since it is

a question of law as to whether a trial court's ruling is

substantial. Partipilo v. Partipilo, 331 Ill. App. 3d 394, 398,

770 N.E.2d 1136 (2002).

In addition, our courts have determined that even if the

trial court did not rule on a substantial issue, a motion for

substitution of judge as of right may still be denied, if before

filing the motion, the moving party had an opportunity to test

-9-
1-05-0067 & 1-05-0090 (cons.)

the waters and form an opinion as to the court's disposition

toward his claim. Partipilo, 331 Ill. App. 3d at 398-99; In re

Marriage of Abma, 308 Ill. App. 3d 605, 611, 720 N.E.2d 645

(1999).

In this case, review of the record indicates that

respondent's two motions for substitution of judge as of right

were untimely and properly denied because they were made after

the probate court ruled upon a substantial issue. The record

also indicates that the motions were untimely and properly denied

because they were made after respondent had an opportunity to

test the waters and discern the trial court's disposition toward

the case.

Respondent filed separate motions for substitution of judge

as of right on July 16 and 22, 2003. The probate court denied

both motions on the ground that they were untimely because they

were filed after the court had ruled upon a substantial issue in

the case on June 9, 2003, by granting the Public Guardian's

emergency motion compelling respondent to produce "signed" copies

of Hoellen's trust, powers of attorney, and last will.

Respondent contends that the probate court's ruling on the

emergency motion was not substantive because the discovery issues

involved were not substantive in nature and the amount of time

the court spent on the motion was de minimis. We disagree.

The record indicates that prior to filing its emergency

motion, the Public Guardian had received "unsigned" copies of the

-10-
1-05-0067 & 1-05-0090 (cons.)

requested documents, causing it to question their authenticity

and validity such that the probate court ruled that respondent

should be required to produce "signed" copies of the documents.

This ruling was substantive in nature and entailed more than a

mere administrative or ministerial decision. The specific dates

on which the various documents were signed was relevant to

tracing the nature and extent of the undue influence the probate

court found respondent exercised over Hoellen. In addition, the

documents contained information allowing the Public Guardian to

go forward with the citation petition.

Moreover, the record indicates that even if the probate

court's discovery ruling did not amount to a substantive ruling,

respondent's two motions for substitution of judge as of right

were still untimely because they were filed after respondent had

an opportunity to test the waters and form an opinion as to the

court's disposition toward his case. At the hearing on

respondent's first motion for substitution of judge as of right

held on July 16, 2003, counsel for respondent stated that he

believed the court "showed a predisposition to ruling in favor of

the Public Guardian's Office" when the court granted the Public

Guardian's emergency motion compelling production of documents.

Counsel's statement clearly shows he had formed an opinion as to

the court's disposition toward his case.

Respondent alternatively argues that since the probate court

granted the Public Guardian's emergency motion on June 9, 2003,

-11-
1-05-0067 & 1-05-0090 (cons.)

in the guardianship action, and the citation proceeding was not

filed until June 24, 2003, it is impossible for the June 9 ruling

to have been a substantive ruling within the citation proceeding

because the proceeding did not exist at the time the ruling was

made. Citing no supporting case law, respondent contends that a

citation proceeding under article XVI, section 16-1, of the

Probate Act of 1975 (Probate Act) (755 ILCS 5/16-1 (West 2000)),

is a new cause of action distinct from a guardianship-of-a-

disabled-adult proceeding under article XIa of the Probate Act

(755 ILCS 5/11a-1 et seq. (West 2004)). He maintains that since

service of process used to obtain personal jurisdiction over a

respondent in a citation proceeding is the same as in any other

civil action, and the parties have a right to a jury trial, a

citation proceeding is a new cause of action distinct from a

guardianship-of-a-disabled-adult proceeding, and therefore the

probate court's June 9 ruling in the guardianship action could

not have been a substantive ruling in this case. We disagree.

In this case, even if the citation proceeding constituted a

new cause of action distinct from the underlying guardianship

proceeding, respondent's motions for substitution of judge as of

right were still properly denied because they were filed after

the probate court made a substantial ruling in the case and after

respondent formed an opinion that the court may be unfavorably

disposed toward the case. To preclude litigants from "judge

shopping," and in the interest of judicial economy, our courts

-12-
1-05-0067 & 1-05-0090 (cons.)

have determined that even if a particular proceeding constitutes

a new cause of action, it will not be deemed a new cause for

purposes of substitution of judge as of right if the trial court

made a prior substantive ruling in the case or the moving party

had an opportunity to test the waters and form an opinion as to

the court's disposition toward his case. See Niemerg v. Bonelli,

344 Ill. App. 3d 459, 465, 800 N.E.2d 86 (2003) (finding that

although a petition to vacate a judgment under section 2-1401 of

the Code may be a "new action" for some purposes, such as

pleading sufficiency and service of process, it is not a new case

for purposes of substitution of judge under section 2-1001(a)(2)

of the Code).

Respondent next contends that even if the probate court made

a substantive ruling in this case, he was nevertheless entitled

to a substitution of judge for cause. He maintains that the

probate court erred in ruling that his July 22, 2003, motion for

substitution of judge for cause was facially invalid, rather than

first transferring the motion to another judge to conduct a

hearing to determine whether cause existed. Again, we must

reject respondent's contentions.

Section 2-1001(a)(3) of the Code provides for a substitution

of judge for cause. 735 ILCS 5/2-1001(a)(3) (West 2000).

Effective January 1993, this section of the Code was amended to

provide that a trial judge facing a petition for substitution was

required to refer the petition to a "judge other than the judge

-13-
1-05-0067 & 1-05-0090 (cons.)

named in the petition." 735 ILCS 5/2-1001(a)(3)(iii) (West 2000);

In re Marriage of Schweihs, 272 Ill. App. 3d 653, 659, 650 N.E.2d

569 (1995). However, a party's right to have a petition heard by

another judge is not automatic. In "order to be entitled to a

hearing before another judge on whether a substitution for cause

is warranted, the motion must allege grounds that, if taken as

true, would justify granting a substitution for cause." Alcantar

v. Peoples Gas Light & Coke Co., 288 Ill. App. 3d 644, 649, 681

N.E.2d 993 (1997).

A trial judge is presumed to be impartial and the burden of

overcoming this presumption rests with the party asserting bias,

who must present evidence of personal bias stemming from an

extrajudicial source and evidence of prejudicial trial conduct.

In re Marriage of Hartian, 222 Ill. App. 3d 566, 569, 584 N.E.2d

245 (1991). In this case, respondent did not meet the threshold

showing of bias or prejudice required to transfer the motion to

another judge.

Respondent claims in essence that the probate court showed

prejudice toward him by ruling against him on the Public

Guardian's emergency motion to compel production of documents and

by denying his initial motion for substitution of judge as of

right filed on July 16, 2003. Respondent's claims are meritless.

Review of the record indicates that the probate court

judgments at issue were based on the evidence. Moreover, our

courts have determined that "erroneous findings and rulings by

-14-
1-05-0067 & 1-05-0090 (cons.)

the circuit court are insufficient reasons to believe that the

court had personal bias or prejudice for or against a litigant."

In re Marriage of Hartian, 222 Ill. App. 3d at 569, citing

McCormick v. McCormick, 180 Ill. App. 3d 184, 194, 536 N.E.2d 419

(1988). Consequently, the probate court properly denied

respondent's motion for substitution of judge for cause, without

first transferring the matter for a hearing before a different

judge.

Respondent next contends that the probate court erred in

denying his motion to compel the Public Guardian and certain

Hoellen family members to respond to his requests to admit facts

and the genuineness of specified documents. We must reject

respondent's contentions.

A request to admit facts pursuant to Supreme Court Rule 216

(134 Ill. 2d R. 216) is a discovery procedure the trial court has

wide discretion in controlling. Homer G. Dickson & Co. v.

Barraza, 115 Ill. App. 3d 5, 7, 449 N.E.2d 990 (1983). In this

case, we cannot say the probate court abused its discretion in

not requiring the Public Guardian and certain Hoellen family

members to respond to a request for admission of facts and the

genuineness of specified documents where the request was filed

approximately five months after discovery had been closed and a

few weeks before trial was to begin. See Illinois State Toll

Highway Authority v. Humphrey Estate, 62 Ill. App. 3d 316, 326-

27, 379 N.E.2d 626 (1978) (finding that trial court did not err

-15-
1-05-0067 & 1-05-0090 (cons.)

in not requiring petitioner to respond to request to admit filed

three days prior to trial). Moreover, respondent was not

prejudiced by the probate court's ruling, considering he never

challenged any of the court's factual findings and his requests

to admit concerned facts he could have proved up at trial.

Finally, respondent sets out a number of arguments as to why

the probate court erred in entering a judgment against him for

nominal and punitive damages. Each of these arguments will be

addressed separately.

Respondent first contends that although article XVI of the

Probate Act vests the probate court with the authority to return

assets to Hoellen's estate, it did not give the court

jurisdiction to litigate "collateral" claims such as undue

influence and breach of fiduciary duty brought against him, and

therefore the court erred in entering judgment against him for

nominal and punitive damages based on these two legal theories.

Respondent is incorrect.

Article XVI of the Probate Act grants a probate court broad

powers to effectuate the discovery and recovery of a disabled

person's real and personal property. See C. Golbert, Using the

Probate Act to Recover Assets Stolen from Persons with

Disabilities, 88 Ill. B.J. 510, 511 (2000). Section 16-1 of the

Probate Act allows a party to file a citation petition on behalf

of the estate, not only to discover information, but also to

recover property. In re Estate of Shugart, 81 Ill. App. 3d 538,

-16-
1-05-0067 & 1-05-0090 (cons.)

540, 401 N.E.2d 611 (1980); In re Estate of Weisberg, 62 Ill.

App. 3d 578, 585, 378 N.E.2d 1152 (1978). In such a proceeding,

a probate court is authorized to "determine all questions of

title, claims of adverse title and the right of property and may

enter such orders and judgment as the case requires. If the

respondent refuses to *** obey the court's order to deliver any

personal property or, if converted, its proceeds or value, ***

the court may enforce its order against the respondent's real and

personal property in the manner in which judgments for the

payment of money are enforced." 755 ILCS 5/16-1(d) (West 2000).

If a citation petition seeks the recovery of property, it

"must make out cognizable legal claims against the respondent

just like any other complaint." C. Golbert, 88 Ill. B.J. at 512;

see In re Estate of Shugart, 81 Ill. App. 3d at 540; In re Estate

of Weisberg, 62 Ill. App. 3d at 585; In re Estate of Garrett, 81

Ill. App. 2d 141, 147, 224 N.E.2d 654 (1967). Claims of undue

influence and breach of fiduciary duty are two legal theories

commonly asserted in a section 16-1 citation petition to recover

property. See, e.g., In re Estate of Joutsen, 100 Ill. App. 3d

376, 380-81, 426 N.E.2d 942 (1981) (citation petition hinged on

legal theories of fiduciary relationship and undue influence); In

re Estate of Berry, 277 Ill. App. 3d 1088, 1091, 661 N.E.2d 1150

(1996) (undue influence); In re Estate of Miller, 334 Ill. App.

3d 692, 697, 778 N.E.2d 262 (2002) (breach of fiduciary duty).

In this case, article XVI of the Probate Act obviously gave the

-17-
1-05-0067 & 1-05-0090 (cons.)

probate court the authority to litigate claims of undue influence

and breach of fiduciary duty brought against respondent.

In a related argument, respondent maintains that a circuit

court acting under the Probate Act is a creature of statutory

enactment, not empowered to exercise general chancery

-18-
1-05-0067 & 1-05-0090 (cons.)

jurisdiction, 2 and therefore the court in this case did not have

the power or jurisdiction to enter a judgment against him for

money damages. Respondent is incorrect.

On January 1, 1964, the jurisdiction of the probate court

was expanded to hear all justiciable matters. See, e.g., Radice

2
The American legal system has its origins in England,

where litigation occurred in a bifurcated system of "'common law'

or 'law' courts, and 'Chancery' or 'equity' courts." S. Subrin,

How Equity Conquered Common Law: The Federal Rules of Civil

Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 914

(1987).

-19-
1-05-0067 & 1-05-0090 (cons.)

v. Antonacci, 87 Ill. App. 2d 139, 144, 231 N.E.2d 107 (1967)

(stating that since the establishment of a single circuit court

in 1964, the probate division of the circuit court has chancery

jurisdiction); In re Estate of Breault, 63 Ill. App. 2d 246, 270,

211 N.E.2d 424 (1965) ("as of January 1, 1964, Illinois has

replaced the limited jurisdiction of the Probate Court with the

unified general jurisdiction of the Circuit Court pursuant to sec

9 of the New Judicial Article VI of the Illinois Constitution,

granting to the circuit court 'unlimited original jurisdiction of

all justiciable matter.'"). Moreover, prior to 1964, Illinois

courts determined that even though a probate court did not

possess general equity or chancery jurisdiction, it was still

empowered to enforce its decrees and orders by chancery

proceedings. See In re Estate of Hauser, 40 Ill. App. 2d 150,

155, 189 N.E.2d 370 (1963).

Respondent next contends that the probate court was not

empowered to award nominal or punitive damages based on count II

(undue influence) or count III (breach of fiduciary duty) of the

citation, because these counts did not contain requests for such

damages. Respondent claims that the probate court erred in

awarding punitive damages because the Public Guardian failed to

prove count IV (fraudulent misrepresentation) and count V

(duress), which specifically requested punitive damages. Again,

respondent is incorrect.

The purpose of requiring a specific prayer for relief in a

-20-
1-05-0067 & 1-05-0090 (cons.)

complaint is to inform defendant of the nature of the claims

against him and the extent of damages sought, so that he may

prepare to meet the demand or permit a default to be taken

against him. Rauscher v. Albert, 145 Ill. App. 3d 40, 43, 495

N.E.2d 149 (1986). Section 2-604 of the Code provides that with

the exception of default judgments and cases involving prejudice

to the adverse party by reason of surprise, the prayer for relief

does not limit the relief obtainable. 735 ILCS 5/2-604 (West

2002); Dils v. City of Chicago, 62 Ill. App. 3d 474, 481, 378

N.E.2d 1130 (1978). In this case, respondent was not prejudiced

by unfair surprise regarding the punitive damage award since the

allegations in the Public Guardian's citation petition and its

June 4, 2004, response to the respondent's motion to strike the

jury demand clearly put respondent on notice that compensatory

and punitive damages were being sought.

Respondent finally contends that the probate court erred in

awarding punitive damages where they were accompanied by only
3
nominal damages. In support of this argument respondent relies

3
The Restatement (Second) of Torts states that nominal

damages are a trivial sum of money awarded to a litigant who has

established a cause of action but has not established that he is

entitled to compensatory damages. The Restatement goes on to

state that nominal damages are to be distinguished from

compensatory damages on one hand and punitive damages on the

other, in that they are granted irrespective of harm to the

-21-
1-05-0067 & 1-05-0090 (cons.)

primarily on the decision in Kemner v. Monsanto Co., 217 Ill.

App. 3d 188, 576 N.E.2d 1146 (1991). Kemner does not support

complainant or of a bad state of mind on the part of the

defendant. Restatement (Second) of Torts ' 907 (1979); see also

Wallace v. City of Rock Island, 323 Ill. App. 639, 642, 56 N.E.2d

636 (1944) ("[n]ominal damages are such damages as are awarded in

cases where the alleged negligence is proved, but where there is

either a failure of proof as to damages suffered or no damages

resulted").

-22-
1-05-0067 & 1-05-0090 (cons.)

respondent's position.

In Kemner, a train derailed, spilling 19,000 gallons of a

wood preservative containing a small quantity of the chemical

dioxin. Residents living near the chemical spill brought an

action for damages against the chemical manufacturer. The jury

awarded plaintiffs "0" in actual damages, $1 each for economic

loss, and $16,250,000 in punitive damages. The reviewing court

determined that in the absence of actual damages, nominal damages

alone could not support the award of punitive damages where there

were no allegations of an intentional tort and the jury

instructions defining willful and wanton conduct omitted any

reference to intentional conduct. Kemner, 217 Ill. App. 3d at

199-200. Kemner does not support respondent's position because,

unlike Kemner, there is no dispute in this case that the conduct

at issue was intentional.

In addition, respondent overlooks the fact that the relief

the probate court ordered was not limited to nominal damages. In

addition to punitive and nominal damages, the probate court

vacated the quitclaim deed and trust, and removed respondent from

Hoellen's bank accounts and death benefits. Moreover, courts in

Illinois have allowed punitive or exemplary damages even when

they were supported by only nominal damages. See McNay v.

Stratton, 9 Ill. App. 215 (1881) (holding that punitive damages

can be awarded in an action for false imprisonment without proof

of actual damages); Pratt v. Davis, 118 Ill. App. 161, 181-82

-23-
1-05-0067 & 1-05-0090 (cons.)

(1905) (holding that punitive damages can be given even though a

plaintiff's loss is nominal); First National Bank of Des Plaines

v. Amco Engineering Co., 32 Ill. App. 3d 451, 455, 335 N.E.2d 591

(1975) (remanding for failure to award nominal damages and

allowing plaintiffs to amend complaint to seek punitive damages),

superceded by statute on other grounds in Wujcik v. Gallagher &

Henry Contractors, 232 Ill. App. 3d 323, 328, 596 N.E.2d 199

(1992).

The question of whether punitive damages can be awarded in a

particular case is a matter of law. Knierim v. Izzo, 22 Ill. 2d

73, 87, 174 N.E.2d 157 (1961); Cirrincione v. Johnson, 184 Ill.

2d 109, 116, 703 N.E.2d 67 (1998). An award of punitive damages

is appropriate where the underlying tort is accompanied by

aggravated circumstances such as wantonness, willfulness, malice,

fraud, or oppression, or when the defendant acts with such gross

negligence as to indicate a wanton disregard for the rights of

others. PCx Corp. v. Ross, 209 Ill. App. 3d 530, 539, 568 N.E.2d

311 (1991); Cirrincione, 184 Ill. 2d at 115-16. "The objectives

of an award of punitive damages are the same as those which

motivate the criminal law -- punishment and deterrence."

Mattyasovszky v. West Towns Bus Co., 61 Ill. 2d 31, 35, 330

N.E.2d 509 (1975). Punitive damages are not awarded as

compensation, but instead serve to punish the offender and deter

him and others from committing similar acts of wrongdoing in the

future. Loitz v. Remington Arms Co., 138 Ill. 2d 404, 414, 563

-24-
1-05-0067 & 1-05-0090 (cons.)

N.E.2d 397 (1990).

Our courts have determined that punitive damages are

appropriate to punish and deter conduct where a defendant, as in

this case, is found to have committed an intentional breach of

fiduciary duty. Glass v. M.D. Burkett, 64 Ill. App. 3d 676, 683,

381 N.E.2d 821 (1978); Obermaier v. Obermaier, 128 Ill. App. 3d

602, 610, 470 N.E.2d 1047 (1984). We conclude that the probate

court did not err in finding that respondent's conduct justified

an award for punitive damages where he used his position as a

Chicago police officer to gain Hoellen's trust and confidence,

exert undue influence over him, and then flagrantly and

intentionally breach the fiduciary duty he owed him. We agree

with the views expressed by the reviewing court in Central Bank-

Granite City v. Ziaee, 188 Ill. App. 3d 936, 948, 544 N.E.2d 1121

(1989), which when presented with a similar issue stated, "[w]e

cannot think of a situation more deserving of an award of

punitive damages than the case at bar in order not only to punish

defendants, but also to deter others who might consider duping a

senile and lonely octogenarian."

Accordingly, for the reasons set forth above, we affirm the

orders of the circuit court of Cook County.

Affirmed.

GARCIA, P.J., and SOUTH, J., concur.

-25-