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Appellate Court Date: 2018.02.08
13:00:01 -06'00'
Morrow v. Pappas, 2017 IL App (3d) 160393
Appellate Court STEVE MORROW, ERIC CHAMBLISS, REBECCA McGOWEN,
Caption GERARD BEACH, and MIDWEST GREYHOUND ADOPTION,
INC., Plaintiffs, v. RINA PAPPAS, SHANE BURROWS, KEVIN
DENNIS STEWARD, THE FIRST NATIONAL BANK OF
OTTAWA, and JOHN CANTLIN, Defendants (Steve Morrow, Eric
Chambliss, Rebecca McGowen, and Gerald Beach, Plaintiffs-
Appellants; Rina Pappas, Shane Burrows, Kevin Dennis Steward, and
The First National Bank of Ottawa, Defendants-Appellees).
District & No. Third District
Docket No. 3-16-0393
Filed October 30, 3017
Decision Under Appeal from the Circuit Court of La Salle County, No. 13-L-118; the
Review Hon. Troy Holland, Judge, presiding.
Judgment Affirmed.
Counsel on Channing B. Hesse and Amy G. Grogan, of Garelli Grogan Hesse &
Appeal Hauert, of Elmhurst for appellants.
William W.P. Atkins and Robert J. Hills, of Johnson, Bunce & Noble,
P.C., of Peoria, for appellee Shane Burrows.
Scott J. Schweickert, of Schweickert & Ganassin LLP, of Peru, for
appellee Rina Pappas.
Michael L. Resis and Ellen L. Green of SmithAmundsen LLC, of
Chicago, for other appellees.
Panel JUSTICE O’BRIEN delivered the judgment of the court, with
opinion.
Justice Lytton concurred in the judgment and opinion.
Presiding Justice Holdridge dissented, with opinion.
OPINION
¶1 After the trial court’s granting of defendants’ motions for summary judgment, plaintiffs
appeal, arguing several points of error by the trial court, namely (1) granting defendants’
motions for summary judgment; (2) the trial court’s discovery rulings involving a denial of
plaintiffs’ motion to compel, subpoenaed cell phone records, the entry of a protective order,
and the trial court’s failure to apply the Dead Man’s Act; (3) the trial court’s dismissal of
plaintiffs’ claims for conspiracy and fraud; and (4) the trial court’s refusal to issue sanctions to
defendants. We affirm the trial court’s ruling on all issues raised.
¶2 FACTS
¶3 Decedent Dorelle Denman executed a will on March 27, 2012 (March Will). She named
plaintiffs Steve Morrow, Eric Chambliss, Rebecca McGowen, Gerard Beach, and Midwest
Greyhound Adoption, Inc. (Midwest), as beneficiaries. Defendant Shane Burrows was also
named as a beneficiary. John Cantlin, the attorney who drafted the will, was identified as
executor of the March Will. Cantlin also acted as Denman’s power of attorney over property.
Denman executed a subsequent will on September 13, 2012 (September Will). That will
removed the prior beneficiaries Morrow, Chambliss, McGowen, Beach, and Midwest, and
instead named Rina Pappas and Burrows as beneficiaries, and appointed the First National
Bank of Ottawa (FNB) as executor under the September Will. Kevin Steward, a trust officer of
FNB, managed all of Denman’s business affairs. Burrows is the only defendant who was
named under both the March Will and the September Will.
¶4 Denman owned and operated several businesses: Willows Hotel and two bed and breakfast
establishments, Landers House and Bear Creek Lodge. Pappas was an employee of Denman’s
and managed the Bistro, a restaurant located in Willows Hotel. On May 12, 2012, Denman fell
and broke her hip and was admitted to St. Margaret’s Hospital. Her health worsened, and she
was transferred to Manor Court on May 18, 2012. She remained at Manor Court for a month,
until she was stable enough to return home. She then returned to the hospital on June 27, 2012,
after being found nearly unresponsive at her home. Denman was transferred between hospitals
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and rehabilitation facilities for a period of time until August 2012. On August 15, 2012,
Denman met with Cantlin and Steward to talk about her business affairs generally.
¶5 On August 29, 2012, while at Illinois Valley Community Hospital, Denman instructed a
nurse to contact Steward. Denman spoke with Steward over the phone and advised him of
several changes she wanted to make to her will. Later that same day, Steward, Cantlin, and
another attorney, Joseph Cantlin, met with Denman to discuss the changes that she wanted to
make to her will. They discussed her properties, her debts, and the extent that her property
should be divided among Pappas and Burrows. Denman did not indicate to the Cantlins or to
Steward that she was being pressured to change her will, and she did not indicate that she was
influenced by anyone to make changes to her will. Cantlin testified that during this meeting she
appeared lucid, competent, and rational and knew exactly what she wanted to do regarding her
estate plan. After discussing these changes, Cantlin advised Denman that they would redraft
the will and bring it back for execution on the next day. However, her health condition
worsened, and the new draft was not immediately executed.
¶6 On September 13, 2012, Denman contacted Steward and told him that she wanted to get
her affairs in order and sign her new will. The Cantlins were not available to preside over the
execution of the revised will. Instead, Steward retrieved the revised will from Cantlin’s office
and took it to Denman. The same day, Dr. Shawn Bailey met with Denman to discuss
executing a do not resuscitate order (DNR). In his deposition, Bailey testified he met with
Denman for a period between 5 to 10 minutes, and Bailey further testified that she was alert,
competent, aware of her physical health, and was able to understand and articulate her wishes
about her end of life care. On September 13, 2012, a DNR was executed, signed by Denman
and Bailey. In his deposition testimony, Bailey explained that Denman had emphysema and
chronic obstructive pulmonary disease (COPD), which could lead to instances of hypoxia and
encephalopathy (confusion from lack of oxygen). Descriptions of “delirium” or “altered
mental state” in Denman’s medical records would be similar to a notation of encephalopathy.
Once Denman received oxygen, her condition would improve. She did not exhibit delirium,
dementia, or altered mental status when he saw her. In his professional opinion, Denman was
competent and capable of making decisions on September 13, 2012.
¶7 Shortly after the DNR was executed, Steward arrived and went to Denman’s room where
he went over the substantive provisions of the will and the changes that were implemented.
Denman expressed to Steward that the changes reflected what she desired. Cantlin had
instructed Steward on how to review and execute the new will with Denman. Two witnesses,
Mark Seidel and Vicki Gomez, were then brought into the room to witness the execution of the
will. Steward then asked Denman a series of questions in front of the witnesses to assess her
understanding and determined that Denman had testamentary capacity to sign the will. Witness
Seidel, when presented with this lawsuit, attested that his authentic signature appears on
Denman’s September Will. Seidel attested that he has no recollection of witnessing the will.
He testified, however, that he was at the Manor Court facility visiting family and friends and
that he takes medication that sometimes causes memory problems. The other witness, Gomez,
testified that Denman had no difficulty in understanding the execution of the will, that she gave
appropriate answers, and understood what was happening. On September 13, 2012, the will
was signed by Denman and witnessed. On September 25, 2012, Denman passed away, and the
September Will was filed in the probate court on September 26, 2012.
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¶8 Plaintiffs filed their original complaint on September 24, 2013. They alleged intentional
interference with testamentary expectancy, conspiracy, fraud, malpractice, and breach of
fiduciary duty. They filed an amended complaint on October 27, 2013, and a second amended
complaint on January 29, 2014. The second amended complaint involved eight counts: counts
I-IV involved claims of intentional interference with testamentary expectancy (count I v.
Pappas, count II v. Burrows, count III v. Cantlin, count IV v. Steward and FNB). Count V
included a claim of conspiracy to commit intentional interference with testamentary
expectancy, and count VI included a claim for fraud against all the defendants. In count VII, a
claim for legal malpractice was alleged against Cantlin, and count VIII alleged a breach of
fiduciary duty against Steward and FNB. All defendants filed motions to dismiss the
complaint. On April 28, 2014, the trial court granted motions to dismiss the conspiracy (V),
fraud (VI), and breach of fiduciary duty (VIII) counts. It denied the motions to dismiss the
other counts (I-IV, VII). The plaintiffs were granted 28 days to replead.
¶9 In the third amended complaint, the plaintiffs maintained their counts of intentional
interference with testamentary expectancy against Pappas (count I), Burrows (count II),
Cantlin (count III), and Steward and FNB (count IV) but added a request for punitive damages
in each of those counts. Counts V, VI, and VIII, which had been previously dismissed by the
trial court, remained in the complaint but were in strike-through format with no new
allegations concerning those claims. The only changes made to the new complaint sought
punitive damages and omitted prior claims for attorney fees. In June 2014, all defendants filed
motions for dismissal pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS
5/2-615 (West 2014)). On July 31, 2014, the trial court entered an order denying all motions
for dismissal as to counts I-IV.
¶ 10 As discovery ensued, answers were filed and depositions took place. Discovery was served
on defendants, and plaintiffs filed a motion to compel directed against Steward and FNB,
arguing that they improperly claimed attorney-client privilege in refusing to comply with their
discovery requests for information regarding Denman’s estate. On June 18, 2015, the trial
court denied plaintiffs’ motion to compel and motion for sanctions against FNB and Steward.
FNB and Steward’s motion to quash a subpoena for Steward’s personal cell phone records was
“denied but” was “modified” as follows: the records were to be reviewed in camera and the
parties were to “enter into a protective order to ensure the privacy of individuals is
maintained.”
¶ 11 On July 10, 2015, the trial court granted Steward’s motion for a protective order without
modification. Thereafter, the defendants each moved for summary judgment. Attached to
Steward and FNB’s motion were the deposition testimonies of Steward, Cantlin, Bailey,
Gomez, and Seidel. Cantlin’s motion for summary judgment as to counts III (intentional
interference) and VII (legal malpractice) was granted on March 21, 2016. On June 10, 2016,
the trial court granted the remaining defendants’ motions for summary judgment. The
plaintiffs moved to reconsider. The trial court denied the motion, and the plaintiffs appealed.
Midwest was not involved in the trial court and is not a part of the appeal. Cantlin is also not a
party to the appeal.
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¶ 12 ANALYSIS
¶ 13 A. Tortious Interference With Testamentary Capacity
¶ 14 Plaintiffs request that this court reverse the trial court’s decision to grant defendants’
motions for summary judgment. Plaintiffs contend that summary judgment was improper
because there were issues of material fact as to their claims for tortious interference of their
testamentary expectancy. Pappas argues that the plaintiffs do not have any knowledge of
tortious conduct by her. Burrows argues that the plaintiffs cannot prove their expectation
existed under the March Will because none of the plaintiffs were aware that they stood to
inherit under the March Will. Steward and FNB contend that plaintiffs are unable to establish
an expectancy under the valid September Will that revoked the March Will and that, because
plaintiffs failed to establish an element of their claim, summary judgment was proper.
¶ 15 Summary judgment should be granted when the pleadings, depositions, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS
5/2-1005(c) (West 2016). Summary judgment is only proper when the resolution of a case
depends on a question of law and should be awarded to the moving party when free of doubt.
In re Estate of Hoover, 155 Ill. 2d 402, 410 (1993). While considering granting the motion, all
evidence is construed strictly against the moving party and in favor of the nonmovant. Id. at
410-11. The standard of review on appeal for the grant or denial of a motion for summary
judgment is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90,
102 (1992).
¶ 16 The “ ‘widely recognized tort’ ” of tortious interference with testamentary expectancy does
not contest the validity of the will; it is a personal claim against an individual tortfeasor. In re
Estate of Ellis, 236 Ill. 2d 45, 52 (2009). A plaintiff must establish the following elements: (1)
the existence of an expectancy; (2) defendant’s intentional interference with the expectancy;
(3) conduct that is tortious in itself, such as fraud, duress, or undue influence; (4) a reasonable
certainty that the expectancy would have been realized but for the interference; and (5)
damages. Id. To constitute undue influence, it must be that such “[f]alse or misleading
representations concerning the character of another may be so connected with the execution of
the will that the allegation that such misrepresentations were made to the testator may present
triable fact questions on the issue of undue influence.” Hoover, 155 Ill. 2d at 412. A person is
subject to liability for another’s loss, where, by tortious means such as fraud or duress, the
person intentionally prevents another from receiving an inheritance or gift from a third person
that the person would have otherwise received. Ellis, 236 Ill. 2d at 52.
¶ 17 Existence of an Expectancy
¶ 18 With respect to the first element, the existence of an expectancy, the plaintiffs contend that
this was satisfied by the existence of the March Will because the “allegation that a prior will
existed is a sufficient allegation of an expectancy.” In re Estate of DiMatteo, 2013 IL App (1st)
122948, ¶ 80. In DiMatteo, the appeal was brought after a section 2-615 dismissal. The court
determined that because the plaintiff pled the allegation that a prior will existed and that the
respondent and named beneficiary of the second challenged will knew how to “change the will
of a person” and that he “succeeded in convincing DiMatteo to change his will,” the cause of
action was successfully pled. (Emphases omitted.) Id. In an additional decision from the
Illinois Supreme Court in DeHart v. DeHart, the court there also acknowledged that an
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existence of expectancy is sufficiently pled when a plaintiff alleges the existence of a prior
will. 2013 IL 114137, ¶ 40.
¶ 19 This case’s procedural posture differs greatly from DiMatteo and DeHart. Both DiMatteo
and DeHart alleged tortious interference with testamentary expectancy in addition to filing a
timely will contest. Here, the plaintiffs did not file a will contest to effectively challenge the
September Will. As a general rule, any claims attacking the validity of a will, including undue
influence, must be filed within six months of the will being admitted to probate. 755 ILCS
5/8-1 (West 2012). This rule also operates to prohibit the filing of a tort claim like the one filed
by the plaintiffs, unless the plaintiffs can demonstrate that the probate proceedings were not
available to them due to the tortious conduct of the defendants and that the probate proceedings
would not have provided them with complete relief. “If a challenger to a will fails to initiate a
direct proceeding to contest the will within the six-month statutory time period, the validity of
the will is established for all purposes.” Ellis, 236 Ill. 2d at 50.
¶ 20 In Ellis, the plaintiff asserted that a will contest was not filed because the plaintiff was
unaware that it was named a beneficiary under the prior will. Id. at 55-56. The trial court
allowed the tort of tortious interference with testamentary expectancy to proceed even though a
will contest was not filed within the statutorily prescribed time limits because the plaintiff did
not have a fair opportunity to contest the will. Id. at 55. The court determined there was
fraudulent conduct on the part of the respondent that prevented the plaintiff from filing a will
contest. Id. at 55-56. The trial court also found the defendant’s tortious conduct had caused the
decedent to transfer property to the defendant prior to death and therefore a will contest would
not have afforded the plaintiff with sufficient relief because the remedy available in probate
does not extend to inter vivos transfers of property. Id. at 56.
¶ 21 The plaintiffs here try to analogize Ellis, arguing they did not file a will contest because
they were not aware that they were named beneficiaries under the March Will and that the
statutory limitations on the will contest should not preclude them from asserting their
expectancy under the March Will. Under Ellis, in order for the plaintiffs to proceed with their
tort claim after the six-month period to contest the September Will expired, they must
demonstrate that the will contest was made unavailable to them. In order to show that the will
contest was unavailable to them, the plaintiffs need to show that the defendants’ tortious
conduct, such as inducing the decedent to change her will, was not discovered until after the
expiration of the time to contest the validity of the will. In Ellis, the tortious conduct was
discovered after the six-month deadline had passed, which prevented the plaintiffs from
contesting the will in probate, but was sufficient to sustain the tort action. Thus, the expiration
of the six-month deadline for will contests did not prevent plaintiffs from bringing this action.
Instead, the plaintiffs failed to show any tortious conduct on part of the defendants to
intentionally interfere with the plaintiffs’ expectancy. Extensive discovery was conducted in
this case. After review of the discovery responses and deposition transcripts, the plaintiffs have
not shown that any of the defendants knew that the March Will existed or that the March Will
devised certain property to the plaintiffs. At most, the record supports an inference that Pappas
was aware of a “new will,” but nothing suggests she was aware of its contents or that she stood
to inherit under the will. Further, Pappas did not have any expectation that Denman would be
naming her as a beneficiary under the September Will. Pappas was not present at either of the
August meetings with attorneys Cantlin and Steward, and she also was not present at the
execution of the will. As to Burrows, all plaintiffs admitted in discovery that they had no
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knowledge of Burrows exerting influence on Denman with intention to change her will or to
persuade Denman to change her estate plan to his benefit. Thus, there is no evidence in the
record to suggest that any of the defendants knew about the contents of the March Will or that
any of the defendants knew they stood to inherit under the March Will, and no evidence to
suggest that the defendants acted fraudulently in concealing the March Will from the plaintiffs
or that they acted in the direction, production, or execution of the will to persuade Denman to
name them as beneficiaries and disinherit the plaintiffs. The plaintiffs were not prevented from
contesting the will because the six-month period had expired due to tortious conduct by the
defendants. Accordingly, Ellis does not aid the plaintiffs’ cause.
¶ 22 Because the first element of the existence of the expectancy is dispositive of the issue of
tortious interference with testamentary expectancy, no further analysis under the tort action is
necessary. We find the plaintiffs have not asserted an expectancy and therefore, summary
judgment entered in favor of the defendants on those counts was properly granted.
¶ 23 B. The Trial Court’s Evidentiary Rulings
¶ 24 1. Trial Court’s Denial of Plaintiffs’ Motion to Compel
¶ 25 On June 18, 2015, the trial court denied plaintiffs’ motion to compel production of
responses to interrogatories and requests to produce served upon Cantlin, Steward, and FNB.
Steward and FNB answered requests for interrogatories and requests to produce, but objected
to filing certain responses and producing certain documents on the basis of attorney-client
privilege. Steward and FNB contended that they were acting as agents of both Denman and
Cantlin. An in camera review was conducted of the documents and the privilege logs provided
by Steward and FNB. The trial court determined that the attorney-client privilege applied to the
documents. Plaintiffs filed a motion to reconsider the June 18, 2015, ruling contending that an
exception to the attorney-client privilege applies; specifically, when issues of undue influence
and lack of testamentary capacity are alleged, the attorney-client privilege is a temporary
privilege that only exists during the lifetime of the client despite the fact that no will contest
was timely filed.
¶ 26 The trial court denied plaintiffs’ motion to reconsider on the basis that nothing in the case
law suggests that the will-contest exception to attorney-client privilege should exist in
plaintiffs’ tort claims. The trial court stated that once the September Will was admitted with no
contest filed, it was established for all purposes, and the rationale behind the exception to the
attorney-client privilege does not apply in this case because the validity of the will was
established for all purposes and the distribution scheme that decedent intended to go into effect
was actually going into effect. On this appeal, plaintiffs contend that the trial court erred when
it determined that the exception to the attorney-client privilege did not apply to this case.
¶ 27 To compel an attorney to disclose client information, the movant must first establish that
the information is not privileged. Adler v. Greenfield, 2013 IL App (1st) 121066, ¶ 42 (citing
In re Marriage of Decker, 153 Ill. 2d 298, 321 (1992)). Information disclosed to a third party is
not privileged, unless the third party is acting as an agent of the attorney or the client. Id. ¶ 44.
Attorney-client privilege generally survives the client’s death, however, the privilege is only a
temporary one when presented in cases involving wills. DeHart, 2013 IL 114137 ¶ 69. Where
an attorney prepares a will for a client and witnesses the same, the privilege only exists during
the lifetime of the client. Id. The rationale behind this limited exception to the privilege is that
a decedent would (if one could ask him) forgo the privilege so that the distribution scheme he
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intended can be given effect. Id. Under the limited exception concerning will contests, a
“plaintiff need only make an initial evidentiary showing that he is an heir or next of kin or that
he was a recipient under a prior will” to establish he is an interested party and not subject to the
privilege. Id. ¶ 73. Under the testamentary exception to attorney-client privilege, the privilege
does not apply to issues between parties that are claiming under the will. Lamb v. Lamb, 124
Ill. App. 3d 687, 693 (1984). A trial court’s decision whether to allow evidence that was not
disclosed during pretrial discovery or whether to impose a discovery sanction is reviewed for
an abuse of discretion. In re K.I., 2016 IL App (3d) 160010, ¶ 56. The question of whether the
attorney-client privilege prohibits the disclosure of sought-after information is reviewed
de novo. Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶ 65.
¶ 28 Neither of the parties contest the existence of an agency between Denman and Steward and
FNB and Cantlin. The plaintiffs assert instead that the limited exception to the attorney-client
privilege exists outside of will contest cases. When the trial court first determined that the
privilege applied, it analogized this case to Adler and determined that because the agency
relationship was similar to the agency relationship analyzed in Adler, and because the trial
court in this case also conducted an in camera review, which the court in Adler did not, the
documents fall under the attorney-client privilege. The Adler court expressly stated that “the
instant action is not a will contest. Accordingly, any communication between [the decedent],
or her agents, and [her attorney] remains privileged.” Adler, 2013 IL App (1st) 121066, ¶ 63.
Plaintiffs then, in their motion to reconsider, relied upon DeHart and asked that the trial court
interpret the underlying reasoning in DeHart to extend the protections of the attorney-client
privilege outside of will contests. We agree with the trial court’s rejection of their request.
¶ 29 Here, it is undisputed that the plaintiffs failed to contest the September Will. This action
was not brought to contest the validity of the will, but instead was brought as a tort claim,
asserting an intentional tortious interference with testamentary expectancy against the
defendants. The case in DeHart was “indisputably” a will contest. DeHart, 2013 IL 114137,
¶ 73. There, the plaintiff had made his initial evidentiary showing that he was a potential heir
and an “interested person.” Id. The court determined that the plaintiff could succeed in making
out a prima facie case that the privilege did not apply because it was subject to the will contest
exception. Nothing in the DeHart case supports the plaintiffs’ contention that the exception
applies outside of will contest cases.
¶ 30 The plaintiffs cite this court’s decision in Eizenga v. Unity Christian School of Fulton,
Illinois, 2016 IL App (3d) 150519, when they posit that the exception to the privilege applies to
non-will contest cases. Eizenga held that the testamentary exception to the attorney-client
privilege also applies to inter vivos trusts. Id. ¶ 29. This court determined that notes and other
documents of an attorney who drafted a contested trust were not privileged. Id. However, in the
instant case, we do not have an instrument that is being contested. The September Will was
established for all purposes, effectively revoking the March Will. In Eizenga, the trust
document was being contested. Even though this court determined that an exception to the
attorney-client privilege applied outside of a will contest, the exception was also being applied
narrowly to a contested inter vivos trust. In the instant case, there is no contest to the
distribution scheme that Denman executed in her September Will. In the absence of such a
contest to an instrument, we will not apply the narrow exception to the attorney-client
privilege.
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¶ 31 2. Trial Court’s Ruling on Number of Interrogatories Served on Defendants
¶ 32 On appeal, plaintiffs contend that the trial court denied the plaintiffs the right to propound
30 interrogatories each, in effect allowing the plaintiffs a total of 150 interrogatories
collectively. Specifically, plaintiffs contend that the court denied them the right to each
propound 30 interrogatories. Illinois Supreme Court Rule 213(c) provides that “a party shall
not serve more than 30 interrogatories, including sub-parts, on any other party except upon
agreement of the parties or leave of court granted upon a showing of good cause.” Ill. S. Ct. R.
213(c) (eff. Jan. 1, 2007). The committee comment to this subsection provides, “Because of
widespread complaints that some attorneys engage in the practice of submitting needless,
repetitious, and burdensome interrogatories, paragraph (c) limits the number of all
interrogatories, regardless of when propounded, to 30 (including subparts), unless ‘good
cause’ requires a greater number.” Ill. S. Ct. R. 213, Committee Comments (revised June 1,
1995). An issue involving Rule 213 should be construed the same as a statute. Vision Point of
Sale, Inc. v. Haas, 226 Ill. 2d 334, 342 (2007). Thus, a Rule 213 issue is reviewed de novo.
Schweickert v. AG Services of America, Inc., 355 Ill. App. 3d 439, 442 (2005).
¶ 33 The trial court addressed plaintiffs’ argument concerning the amount of interrogatories
allowed to be propounded and determined that despite plaintiffs’ citing case law that each
party may file 30 interrogatories, the court “[did] not find that Defendants Steward/FNB
having to answer the interrogatories as submitted would be unduly burdensome.” Further, the
trial court ordered Steward and FNB to provide a written response to the requests. Plaintiffs
have not established that Steward and FNB have failed to comply with this order. There was no
error denying the plaintiffs the right to propound 30 interrogatories each because the trial court
ruled in favor of their request.
¶ 34 3. Subpoenaed Cell Phone Records
¶ 35 During discovery, plaintiffs subpoenaed Steward’s personal cell phone records, and he
subsequently attempted to quash the subpoena. The trial court denied the motion to quash, but
instead granted the parties a protective order stating that (1) the personal cell phone records of
Steward could not be used outside of the course of litigation in this case, (2) plaintiffs would
not be permitted to contact any of the numbers disclosed in the subpoena that belong to bank
customers and/or Steward’s family or friends, (3) plaintiffs were permitted to contact any other
telephone numbers disclosed by the subpoena who have knowledge of the facts of this case,
and (4) in the event that there were persons who had knowledge, but were bank customers or
relatives and friends of Steward, plaintiffs would obtain court permission, for good cause
shown, before contacting those persons.
¶ 36 Illinois Supreme Court Rule 201(b)(1) (eff. July 1, 2014) requires full disclosure of matters
relevant to the subject matter in the case. A trial court has the authority to make a protective
order on its own initiative or on motion of a party or witness, to regulate discovery to “prevent
unreasonable annoyance, expense, embarrassment, disadvantage or oppression.” Ill. S. Ct. R.
201(c)(1) (eff. July 1, 2014). Protective orders afford litigants the opportunity to prevent public
disclosure of private information tendered in discovery that would be damaging to a party’s
privacy. Kaull v. Kaull, 2014 IL App (2d) 130175, ¶ 52. As noted above, a trial court’s
decision whether to allow evidence that was not disclosed during pretrial discovery is reviewed
for an abuse of discretion. In re K.I., 2016 IL App (3d) 160010, ¶ 56.
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¶ 37 Plaintiffs sought to obtain the information from Steward’s private cell phone to show that
defendants Steward and Pappas were in constant communication concerning Denman’s estate
planning affairs. The numbers on the personal cell phone contained work clients of Steward, as
well as employees of the bank. Notwithstanding the entry of the order, plaintiffs already
obtained evidence concerning communications made about Denman’s estate planning through
discovery, as evidenced by the screenshots of text messages contained in the records and
various e-mails and as indicated by the plaintiffs’ briefs. Plaintiffs were aware of phone
records that revealed numerous phone calls between the defendants, as well as the length of
some of those phone conversations. Plaintiffs were also aware of text messaging conversations
between Pappas and Steward on September 11, 2012, and also that five separate phone
conversations occurred between Steward and Pappas. Plaintiffs were already entitled to
information via phone records concerning Steward and Pappas, and thus, subpoenaing the
records from his personal cell phone containing private information concerning the bank and
its clients was unreasonable. The numbers sought after by the plaintiffs included those of
Steward and FNB’s customers and were not in any way relevant to the issues in the plaintiffs’
complaint. The plaintiffs were still able to access the phone records for calls relevant to
Denman’s estate planning. We find the trial court did not err in issuing the protective order.
¶ 38 4. Trial Court’s Application of Dead Man’s Act
¶ 39 Plaintiffs argue that the trial court was incorrect in its application of the Dead Man’s Act.
735 ILCS 5/8-201 (West 2016). Plaintiffs requested that the trial court apply the statute to bar
deposition testimony by the defendants on the basis that Cantlin’s conversations should be
stricken because they concern conversations with the decedent and an adverse party to the
lawsuit. The Dead Man’s Act provides, in relevant part: “In the trial of any action in which any
party sues or defends as the representative of a deceased person or person under a legal
disability, no adverse party or person directly interested in the action shall be allowed to testify
on his or her own behalf to any conversation with the deceased or person under legal disability
or to any event which took place in the presence of the deceased or person under legal
disability ***.” Id. The Dead Man’s Act bars testimony from adverse parties or persons
directly interested in the lawsuit where the representative of the deceased person sues or
defends on behalf of the decedent. In re Estate of Sewart, 274 Ill. App. 3d 298, 308 (1995).
Application of the Dead Man’s Act is an evidentiary matter and will be reviewed for an abuse
of discretion. Gunn v. Sobucki, 352 Ill. App. 3d 785, 787 (2004).
¶ 40 The trial court correctly found that the plaintiffs lacked standing to object under the Dead
Man’s Act. Plaintiffs cannot seek protection under the Dead Man’s Act because they do not
fall within the definition of “representative.” “ ‘Representative’ ” is defined under the statute
as: “an executor, administrator, heir or legatee of a deceased person and any guardian or trustee
of any such heir or legatee, or a guardian or guardian ad litem for a person under legal
disability.” 735 ILCS 5/8-201 (West 2016). Here, plaintiffs are not executors, administrators,
heirs, or legatees of Denman. The September Will, as previously noted, was established for all
purposes. Plaintiffs have not offered any case law to show when the Dead Man’s Act extends
to legatees under a prior revoked will. Under the Dead Man’s Act, conversations between the
decedent and interested persons are prohibited. Kelley v. First State Bank of Princeton, 81 Ill.
App. 3d 402, 416 (1980). Steward acted as Denman’s attorney’s agent and trust officer of the
bank; he was not an “ ‘interested person’ ” within the meaning of the Dead Man’s Act. 735
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ILCS 5/8-201 (West 2016). We find that the trial court did not err in refusing to apply the Dead
Man’s Act.
¶ 41 C. Dismissal of Conspiracy and Fraud Counts
¶ 42 Plaintiffs assert that the trial court erred when it dismissed counts V and VI of their second
amended complaint. The trial court dismissed the counts without prejudice on April 28, 2014,
and plaintiffs were granted leave to replead. Plaintiffs’ third amended complaint included the
same exact counts that appeared in the second amended complaint, however, they were in a
red-lined, strike-through format with no additional allegations or facts pled. The trial court
further clarified in its July 31, 2014, order, that the counts for conspiracy and fraud of the third
amended complaint were stricken without prejudice. An amended pleading, complete in itself,
supersedes the pleading that it replaces and the earlier pleading ceases to be a part of the record
for most purposes, being in effect abandoned and withdrawn. Foxcroft Townhome Owners
Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153-54 (1983). A trial court’s section 2-615
dismissal is reviewed de novo. Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003). When the
plaintiffs failed to replead the conspiracy and fraud counts in the third amended complaint,
they ceased to be part of the plaintiffs’ complaint. The trial court did not err when it granted the
defendants’ motion for dismissal, and it did not err when it denied plaintiffs’ motion to strike
the defendants motion for dismissal.
¶ 43 D. Punitive Damages
¶ 44 Plaintiffs assert that they sought leave to amend their complaint to include punitive
damages. Plaintiffs allege that punitive damages are appropriate for each count and should
have been allowed in their prayer for relief. A trial court’s ruling on a plaintiff’s motion to
amend to add punitive damages is reviewed for an abuse of discretion. Holzrichter v. Yorath,
2013 IL App (1st) 110287, ¶ 142. The record does not support the plaintiffs were denied leave
to amend to add punitive damages. On April 28, 2014, the trial court ruled that “[p]laintiffs
may include a prayer for relief which includes punitive damages” after dismissing counts V
(conspiracy), VI (fraud), and VIII (breach of fiduciary duty). As noted before, plaintiffs did not
incorporate counts V and VI into the third amended complaint and they were appropriately
stricken by the trial court in its July 31, 2014, order for failure to replead. As to the remaining
counts in the third amended complaint, counts I-IV did in fact include a request for punitive
damages. Thus, the record does not support plaintiffs’ contention that they were denied leave
to amend their prayer for relief. We find their argument is without merit.
¶ 45 E. Sanctions
¶ 46 Plaintiffs assert that the trial court should have granted their motion for sanctions on the
basis of a Petrillo violation. Defense attorneys are prohibited from engaging in ex parte
communications with a plaintiff’s treating physician. Requena v. Franciscan Sisters Health
Care Corp., 212 Ill. App. 3d 328, 331 (1991) (citing Petrillo v. Syntex Laboratories, Inc., 148
Ill. App. 3d 581, 594-95 (1986)). Violations of the rule may occur regardless of the information
actually revealed. Mondelli v. Checker Taxi Co., 197 Ill. App. 3d 258, 265 (1990).
Enforcement of the rule protects the confidential and fiduciary relationship between a patient
and her medical care providers. Yates v. El-Deiry, 160 Ill. App. 3d 198, 202-03 (1987). The
doctrine has been extended to include other health care professionals who have treated the
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patient along with the doctor. Roberson v. Liu, 198 Ill. App. 3d 332, 338 (1990). The standard
of review for a motion for sanctions is an abuse of discretion. Sadler v. Creekmur, 354 Ill. App.
3d 1029, 1045 (2004).
¶ 47 Plaintiffs alleged that counsel for Steward and FNB engaged in ex parte communications
with Denman’s attending physician, Bailey, in advance of his deposition, ultimately resulting
in an unfair advantage to Steward and FNB. The trial court denied plaintiffs’ motion for
sanctions on June 18, 2015, on the basis that the Petrillo doctrine did not apply to the facts of
this case. They essentially ask this court to extend the Petrillo doctrine to include any
physician who may provide testimony in litigation. Bailey was Denman’s treating physician on
September 13, 2012. Denman is not a plaintiff to the instant case but instead was involved as a
nonparty whose estate planning is at issue. The trial court found that the doctrine applies when
there is an adversary relationship between defense counsel and plaintiff’s treating physician.
As Bailey was not the treating physician of any of the plaintiffs, that adversarial relationship
found in Petrillo does not exist on these facts. Further, counsel for Steward and FNB admitted
to conversations with Bailey’s staff for purposes of deposition scheduling. It was also
communicated by counsel for Steward and FNB to other parties that Bailey’s staff confirmed
Bailey only tended to Denman one day, on September 13, 2012. We consider the evidence and
the record do not support the fact that counsel for Steward and FNB engaged in ex parte
communications directly with Bailey. Even though the Petrillo doctrine has been extended to
staff members operating under attending physicians, the communications with Bailey’s staff
were solely for the purposes of scheduling the depositions. Thus, any communications made
by counsel for Steward and FNB do not amount ex parte communications. We reject the
plaintiffs’ invitation to extend the Petrillo doctrine to include any physician who may offer
testimony in litigation. The trial court properly declined to apply Petrillo or to extend the
doctrine to include a nontreating physician and scheduling information.
¶ 48 CONCLUSION
¶ 49 For the foregoing reasons, the judgment of the circuit court of La Salle County is affirmed.
¶ 50 Affirmed.
¶ 51 PRESIDING JUSTICE HOLDRIDGE, dissenting:
¶ 52 I respectfully dissent. I disagree with the majority’s holding that summary judgment was
appropriate on the tort claim. The majority cites In re Estate of Ellis, for the proposition that
“[i]f a challenger to a will fails to initiate a direct proceeding to contest the will within the
six-month statutory time period, the validity of the will is established for all purposes.” 236 Ill.
2d 45, 50 (2009). The Ellis court further noted, however, that the tort of intentional interference
with an inheritance “does not contest the validity of the will; it is a personal action directed at
an individual tortfeasor.” Id. at 52. Noting that the remedy in a tort claim is personal against the
alleged tortfeasor, and not an action against the estate, the Ellis court held that the application
of the six-month statutory time frame provided under section 8-1 of the Probate Act of 1975
(755 ILCS 5/8-1 (West 2012)) to a claim for tortious interference with a testamentary
expectancy was erroneous as a matter of law. Ellis, 236 Ill. 2d at 51. The Ellis court noted that
the six-month time limit provided in the Probate Act of 1975 could nevertheless restrict the
filing of a tort action “where a plaintiff forgoes an opportunity to file a tort claim within the
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six-month period for a will contest.” Id. at 53. The Ellis court clearly limited this exception to
instances where the plaintiff had sufficient knowledge of the facts necessary to contest the will
during the six-month time for filing a will contest, but chose not to do so. Id. at 55-56.
¶ 53 In the instant matter, the record reveals no facts which would support a finding that the
plaintiffs had sufficient knowledge of the facts necessary to contest the will during the
six-month time period for filing a will contest. The plaintiffs’ case rests upon the existence of
the March Will and their knowledge of its existence. There is nothing in the record to establish
conclusively that any of the plaintiffs had knowledge of the existence of that will or their status
under that will within the six-month time period for filing a will contest. Without clear
evidentiary proof that such knowledge existed, there is no basis upon which to conclude that
the plaintiffs could have presented their claim within the statutory period. At best, the matter of
plaintiffs’ knowledge is a matter of disputed fact. Thus, the circuit court erred, as a matter of
law, in granting summary judgment on the tortious interference counts.
¶ 54 I also disagree with the majority’s conclusion that the mere existence of the March Will is
insufficient to establish the expectancy element of the plaintiffs’ tort claim. It is well-settled
that the existence of an expectancy is sufficiently pled where the plaintiff alleges the existence
of a prior will. DeHart v. DeHart, 2013 IL 114137, ¶ 40; In re Estate of DiMatteo, 2013 IL
App (1st) 122948, ¶ 80 (“allegation that a prior will existed is a sufficient allegation of an
expectancy”). Here, the plaintiffs pled the existence of the March Will in their tortious
interference counts. The law is clear that they were not required to plead any other facts to
establish the expectancy element of the tort claim.
¶ 55 Regarding the trial court’s denial of the plaintiffs’ motion to compel production of certain
discovery based upon attorney-client privilege, I would vacate the court’s ruling and remand
for further proceedings in light of the reversal of summary judgment in the tortious
interference claim. The question of whether the attorney-client privilege prohibits disclosure of
sought-after information is subject to de novo review. Center Partners, Ltd. v. Growth Head
GP, LLC, 2012 IL 113107, ¶ 65. Generally, attorney-client privilege does not apply to parties
claiming under a will. Lamb v. Lamb, 124 Ill. App. 3d 687, 693 (1984). Moreover, courts have
allowed parties seeking information from attorneys regarding deceased clients to access that
information where the cause of action included tortious interference with a testamentary
expectancy (DeHart, 2013 IL 114137, ¶ 73) and a contest involving an inter vivos trust.
Eizenga v. Unity Christian School of Fulton, Illinois, 2016 IL App (3d) 150519. The tortious
interference claim, involving a testamentary expectancy, sufficiently involves the rights of the
claimants under a will to invoke the testamentary exception to the attorney-client privilege.
Since I would reverse and remand the matter of tortious interference, I would likewise reverse
and remand all discovery issues for consideration in light of the case going forward on the tort
claim.
¶ 56 Since I would reverse the circuit court’s grant of summary judgment on the tortious
interference count, I would remand the matter to the circuit court without ruling on the
remaining counts of the complaint.
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