2022 IL App (1st) 210042-U
No. 1-21-0042
Second Division
May 3, 2022
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS4
FIRST DISTRICT
____________________________________________________________________________
LESTER G. DETTERBECK III, WENDI ) Appeal from the
GAWNE f/k/a Wendi Jensen, and BRUCE ) Circuit Court of
DETTERBECK, ) Cook County.
)
Plaintiffs-Appellants, )
)
v. ) No. 16 CH 02260
)
JOHN DETTERBECK, BARBARA )
DETTERBECK, LESTER DETTERBECK
ENTERPRISES, LTD., CARRIE TRUST )
GROUP PARTNERSHIP; LORRAINE )
TRUST GROUP PARTNERSHIP; ESTATE )
OF LESTER G. DETTERBECK, JR.; the )
LESTER G. DETTERBECK, JR. )
REVOCABLE TRUST DATED MAY 2, )
2005; and LEAF, DAHL & COMPANY, )
LTD., )
) Honorable
Defendants-Appellees. ) Caroline K. Moreland,
) Judge, presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Howse concurred in the
judgment.
No. 1-21-0042
ORDER
¶1 Held: The dismissal of counts IV through VI of plaintiffs’ fourth amended complaint is
affirmed to the extent the law of the case doctrine barred plaintiffs from relitigating
causes of action based on the conduct of a former trustee but reversed to the extent
such causes of action are based on the conduct of the successor co-trustees.
¶2 This case returns to us following our remand to the circuit court in Detterbeck v.
Detterbeck, 2019 IL App (1st) 181113-U (Detterbeck I). Relevant to this appeal, we held in
Detterbeck I that the circuit court properly dismissed portions of the plaintiffs’, Lester G.
Detterbeck III (Lester III), Wendi Gawne, and Bruce Detterbeck, fourth amended complaint where
(1) plaintiffs were reasonably apprised of harms stemming from alleged breaches of fiduciary duty
in 1986 and (2) there was no tolling of the statute of limitations. With respect to claims against the
former trustee, Lester Detterbeck, Jr. (Lester Jr.), we held that laches also barred plaintiffs’ claims
due to the death of key witnesses. Claims against the successor co-trustees, John and Barbara
Detterbeck based on accountability for the actions of Lester Jr., were also properly dismissed.
¶3 However, we held that the circuit court improperly dismissed certain other causes of action
against the successor co-trustees that accrued within five years of the filing of the complaint. We
further held that the circuit court improperly dismissed causes of action relating to professional
negligence against the family’s accountant, Leaf, Dahl & Company (Leaf). Accordingly, we
restored those causes of action and remanded to the circuit court for further proceedings.
¶4 On remand, the circuit court granted defendants’ motion to dismiss counts IV through VI
of the fourth amended complaint pursuant to section 2-619(a)(9) of the Illinois Code of Civil
Procedure (735 ILCS 5/2-619(a)(9) (West 2020)). On appeal, plaintiffs argue that the dismissal
was improper as it was inconsistent with this court’s decision in Detterbeck I and violated the
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mandate rule and law of the case doctrine. For the following reasons, we affirm in part and reverse
in part.
¶5 I. BACKGROUND
¶6 A. Initial Litigation
¶7 The factual background of this case is detailed in Detterbeck I. Detterbeck, 2019 IL App
(1st) 181113-U. We summarize it again here to provide context for our current discussion.
¶8 1. The Trusts
¶9 In 1973, plaintiffs, their youngest brother John Detterbeck, and their sister Cheryl Martin1
were named as the primary beneficiaries of the Carrie Cederna Trusts 1, 2, 3, 4, and 5 (Carrie
Trusts). Carrie Cederna, the beneficiaries’ maternal grandmother, named the beneficiaries’ father,
Lester Jr., as the trustee. In 1978, Lester Detterbeck, Sr., executed a nearly identical trust agreement
on behalf of plaintiffs, as well as John, and Cheryl under the Lorraine Trusts 1, 2, 3, 4, and 5
(Lorraine Trusts). Lester Jr. was also named trustee of the Lorraine Trusts. The agreements differed
only in the names of the grantors, the date and place of execution, and the named trustee who
would act if no other trustee was qualified to act.
¶ 10 Lester Jr. managed the trusts from their creation up to his death. In 2008, he appointed his
son John and John’s wife Barbara as successor co-trustees for both sets of trusts. On August 24,
2015, Lester Jr. passed away. Shortly thereafter, John and Barbara accepted their appointments as
co-trustees, retroactive to the date of Lester Jr.’s death.
1
According to the fourth amended complaint, Martin passed away and her beneficiary shares
were distributed evenly among her four siblings in accordance with the terms of the trust agreements. The
complaint does not appear to identify the date of her death.
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¶ 11 During his time as trustee, Lester Jr. was also the owner of Lester Detterbeck Enterprises
(LDE),2 a family-run company located in Iron River, Michigan, which manufactures cutting tools,
cams, tool holders, and replacement parts for the precision machine products industry. Plaintiffs
all worked at LDE at some point in time, in various capacities, and for varying durations. After
Lester Jr.’s death, John, who was named president of LDE in 1999, received 100% ownership of
the company.
¶ 12 In the months following Lester Jr.’s death, John asserted that he reviewed all available
records to facilitate the transition of the company and trusts. During his review of the relevant
documents, John found that each of the separate trusts did not have individual bank accounts.
Instead, there was one bank account for the “Lorraine Trust Group” and another for the “Carrie
Trust Group.” On the advice of legal counsel, John and Barbara executed an “Amended and
Restated Partnership Agreement” for the Carrie Trusts and the Lorraine Trusts. The agreements
were signed on December 12, 2015, and purported to be continuations of the original partnership
agreements, which could not be located. The partnership agreements joined the Carrie Trusts into
the Carrie Trust Group and the Lorraine Trusts into the Lorraine Trust Group.
¶ 13 After their father’s memorial, John received emails from Lester III regarding the trusts.
One of the e-mails requested copies of the original trust documents, in addition to recent
accompanying tax returns and financial statements. After receiving some documents from John,
Lester III sent another e-mail, asking to “work together” on the trusts. Lester III’s second e-mail
referenced two letters he sent to Lester Jr. in 1985 and 1986.
2
LDE was formerly known as Form-Rite Tools, Inc. until the later 1980s.
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No. 1-21-0042
¶ 14 The 1985 letter was written following a judge’s ruling that the Carrie and Lorraine Trust
Groups were marital property for purposes of Lester Jr.’s divorce from plaintiffs’ mother. Lester
III stated that he had “no problem” with the judge’s ruling so long as his father began to operate
and handle the trusts “in a fiduciary manner for the benefit of the beneficiaries.” The letter
continued, “[i]f on the other hand, the trusts will be operated as they have in the past or if they are
system[ati]cally dissolved back into Form-Rite or some other entity of yours, I think that mother
and all of your children have ‘been screwed.’ ” Lester III then demanded that their father share
information with all of the beneficiaries regarding the content of the trusts, the present investments,
the rights and responsibilities of the trustee and beneficiaries, contemplated distributions, and
provisions regarding securing loans from the trusts.
¶ 15 The 1986 letter acknowledged that no response to the first letter had been received for over
a year. Lester III accused his father of continuing to use the trust funds for his own personal benefit,
despite the divorce decree declaring the funds as property of the beneficiaries instead of the
parents. The letter asserted that the beneficiaries were entitled to “regular reporting, full disclosure,
and objective and fiduciary handling of the trust funds” and that there was the possibility of suing
to remove his father as trustee if he did not provide the same. Lester III then requested that his
father set in motion a plan to close the trusts and distribute the funds.
¶ 16 2. Procedural History
¶ 17 On December 9, 2015, plaintiffs each invoked the terms of the trust agreement allowing
them to request the distribution of their respective trusts. Later, plaintiffs also issued a demand for
a complete accounting of the trusts. Lester III stated that he was only able to review the 2012,
2013, and 2014 trust tax records because he had not been given a full accounting by the successor
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co-trustees. Despite his limited review, Lester III was concerned about the status of the trusts, and
as a result, plaintiffs filed their initial complaint on February 17, 2016.
¶ 18 a. Fourth Amended Complaint
¶ 19 The complaint was amended four times to re-plead counts that were dismissed, add
additional defendants and claims, and address other issues that arose during the proceedings. Also,
defendants John and Barbara filed a counterclaim for a declaratory judgment regarding the sale of
equipment held by the trust partnerships. This counterclaim was later resolved via agreed order
after depositions were taken.
¶ 20 On September 28, 2017, plaintiffs filed their fourth amended complaint, which alleged,
inter alia, that the trusts and their assets were wrongfully utilized and manipulated to fund LDE
without adequate compensation and to the detriment of the trusts and the beneficiaries. The
complaint consisted of eight counts, alleging breaches of fiduciary duty, civil conspiracy, aiding
and abetting, unjust enrichment, and professional negligence. We now set forth the contents of
each count to the extent necessary for the resolution of this appeal.
¶ 21 Count I alleged breach of fiduciary duty against Lester Jr.’s estate and trust. Specifically,
plaintiffs complained that Lester Jr. had (1) arranged unreasonable oral leases of equipment owned
by the trusts, through the partnerships, to LDE at below-market rates; (2) generated unnecessary
loans between the trusts and LDE at lopsided interest rates favoring LDE; (3) removed and
converted trust assets for personal use; and (4) failed to provide proper accounting or keep standard
books and records.
¶ 22 Count II alleged breach of fiduciary duty against John and Barbara. Specifically, John and
Barbara were accused of wrongfully abandoning trust assets, allowing LDE to convert such assets,
and manipulating the books and records to provide inappropriate leases to LDE. Plaintiffs further
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alleged that John and Barbara failed to rectify the misdeeds perpetrated by Lester Jr., choosing
instead to perpetuate the pattern of self-dealing and lack of communication and transparency. John
was also accused of removing assets from the trusts for personal use, and both co-trustees were
alleged to have negotiated in bad faith regarding the liquidation of trust assets and the winding
down of the trusts.
¶ 23 Count III alleged that Lester Jr., his Estate, John, and Barbara failed to provide an
accounting to the other beneficiaries.
¶ 24 Because Counts IV, V and VI form the basis of this appeal, we set forth the allegations in
those counts in detail. Count IV alleged that Lester Jr., his Estate, John, Barbara, LDE, and the
Carrie Trust and Lorraine Trust Groups had engaged in a civil conspiracy. Specifically, count IV
alleged that “[p]rior to 2015, [Lester Jr.], John, Barbara, LDE, and [the Trust Groups] had an
agreement to structure lease rates and otherwise administer the Trusts and Partnerships in a manner
that would divert assets from the Trusts to LDE, [Lester Jr.], John, and Barbara, to the detriment
of the [p]laintiffs’ beneficial interests in the Trusts.” Count IV further alleged that “[i]n furtherance
of this scheme, [Lester Jr.], John[,] and Barbara, as [s]uccessor [c]o-trustees, committed actions,
as alleged in [c]ounts I and II, that breached their fiduciary duties in the administration of the
[t]rusts in order to benefit themselves and LDE, to the detriment of [p]laintiffs’ beneficial interests
in the [t]rusts.”
¶ 25 Count V alleged aiding and abetting of a breach of fiduciary duty against LDE, Carrie Trust
Group, and Lorraine Trust Group. Specifically, Count V alleged that
“[Lester Jr.], John, and Barbara utilized their capacities as manager of the
Partnerships and LDE to collaborate with and use their capacities as [t]rustee and
[s]uccessor [c]o-[t]rustees to: (a) transfer partnership assets to LDE for which the
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Partnerships did not receive any or adequate consideration; (b) [m]anipulate the
process of purchasing new equipment and trading in used equipment in order to
facilitate LDE making artificially and improperly reduced lease payments; (c)
facilitate [Lester Jr. to lend] personal funds to the Partnerships at above-market
interest rates while simultaneously causing the Partnerships to lend funds to LDE
at below-market interest rates; [and] (d) facilitate the conversion of the
Partnerships’ assets by [Lester Jr.], John, and Barbara ***.”
Count V further alleged that LDE “selected and issued purchase orders for the acquisition of new
equipment under its name[,] even though the invoices were being paid by the Partnerships[,]”
resulting in artificially and improperly reduced lease payment amounts.
¶ 26 Count VI alleged, in the alternative, unjust enrichment, against John, Barbara, LDE, and
Lester Jr.’s Estate and Trust. Specifically, count VI alleged that Lester Jr., Barbara, and LDE
“unlawfully retained the benefit of utilizing the Trust Estates, including but not limited to using,
converting, and receiving Trust assets for which Trusts did not receive any or adequate
consideration.” Count VI also alleged that “[Lester Jr.], John, Barbara, and LDE never had
purchase, transfer, or gifting contracts for any of the assets that [they themselves] and entities
received from the Partnerships.” Count VI further stated that as of December 31, 2015, Lester Jr.,
John, and Barbara had “transferred various pieces of the Partnerships’ equipment to LDE for no
consideration.” Count VI also alleged that John and Barbara “caused the sale of Partnership
equipment to LDE at fire-sale prices,” and included a specific example of a sale in 2016.
Specifically, as to John, count VI alleged that he had “received a substantial amount of money
from the Partnerships and paid no interest” for the period of time that he held the funds, specifically
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pointing to a January 6, 2016 date. Last, specifically as to Lester Jr., count VI alleged that he had
“purchased a golf cart in 2006 for approximately $7,577.44 with Carrie Trust Group funds.”
¶ 27 Finally, counts VII and VIII alleged that Leaf had committed professional negligence by
aiding and abetting the co-trustees’ misconduct.
¶ 28 b. Original Motion to Dismiss
¶ 29 John, Barbara, and LDE filed a section 2-619.1 motion to dismiss pursuant to the Code of
Civil Procedure (735 ILCS 5/2-619.1) (West 2016) (LDE motion). As to the Section 2-619 portion
of the combined motion (735 ILCS 5/2-619) (West 2016), the LDE motion argued, inter alia, that
plaintiffs’ claims were barred by the statute of limitations, laches, collateral estoppel, and res
judicata.3 The motion asserted that plaintiffs delayed bringing their claims until their father’s
passing, even though they benefitted under the trust agreements and partnerships for more than 30
years and were aware of their ability to bring a suit against Lester Jr. during that time period.
According to defendants, this delay caused the exact prejudice to John and Barbara that the rule of
laches aimed to prevent because Lester Jr. was no longer alive to defend his actions and such
burden now fell on the successor co-trustees. The motion further asserted that claims on the
propriety of transactions between the trusts and LDE were previously ruled on by another judge in
the divorce proceedings between Lester Jr. and his former spouse, and thus were barred by
collateral estoppel and res judicata. Last, pursuant to section 2-615 of the Code of Civil Procedure
(735 ILCS 5/2-615) (West 2016), the motion argued that, among other things, plaintiffs had failed
to state a claim for civil conspiracy and unjust enrichment.
3
Leaf also filed a motion to dismiss. In Detterbeck I, counts VII and VIII against the company
were restored. Leaf is not participating in the instant appeal.
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No. 1-21-0042
¶ 30 In response, plaintiffs argued that their complaint was timely filed and not barred by the
statute of limitations, waiver, estoppel, or laches because their claims accrued only when they
knew or reasonably should have known of such injuries and that their injuries were wrongfully
caused. Plaintiffs contended that they did not have actual knowledge of the misdeeds until
plaintiffs were allowed to review trust-related documents in 2016, well within the statute of
limitations. Plaintiffs further contended that collateral estoppel and res judicata did not apply
because their current claims could not have been raised in the divorce proceedings between Lester
Jr. and his former spouse.
¶ 31 On April 30, 2018, the circuit court dismissed all counts with prejudice. The circuit court
found that the 1985 and 1986 letters, written by Lester III to Lester Jr., contradicted plaintiffs’
assertion that they did not discover issues with the trusts until after Lester Jr.’s death. Thus, the
circuit court determined that the discovery rule did not apply and the allegations against the trustees
were barred under the statute of limitations. The circuit court also found that without the
foundational tort or cause of action, the civil conspiracy and aiding and abetting charges must also
be dismissed.
¶ 32 c. Detterbeck I
¶ 33 In Detterbeck I, 2019 IL App (1st) 181113-U, we affirmed the dismissal of several counts,
but reversed and remanded in part as to other counts.
¶ 34 In particular, we found that claims against Lester Jr. and his estate were barred under the
statute of limitations and laches. We noted that the statute of limitations period for a breach of
fiduciary duty claim is five years and plaintiffs had initiated suit on February 17, 2016, more than
five years after Lester Jr.’s alleged wrongful conduct. See Id. ¶ 32. As such, we held that the claims
raised in the complaint “should then be focused on causes of action accruing on or after February
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17, 2011.” Id. ¶ 33. We rejected plaintiffs’ argument that they first realized their injuries caused
by Lester Jr.’s administration of the trusts in 2015. Id. Although we recognized that many of the
allegations of wrongdoing occurred after the 1985 and 1986 letters, we found that plaintiffs could
not “benefit from their willful ignorance of their father’s loose practices in regard to the trusts’
administration[,]” of which they were aware as early as the 1980s. Id. We reasoned that the letters
themselves levied “accusation[s] of self-dealing, manipulation involving [LDE’s] *** failure to
provide an accounting, and misuse of the trust assets for personal gain” and therefore, plaintiffs
were sufficiently aware of their injury and could not “seek refuge in the doctrine of the discovery
rule to justify the delay in filing their complaint.” Id. ¶ 40. Additionally, we found that laches
applied to the remainder of the claims against Lester Jr., specifically claims arising from 2011 until
his death in 2015. Id. ¶ 54. We reasoned plaintiffs’ inaction for 40 years constituted unreasonable
delay and the deaths of two key witnesses prejudiced defendants. Id. ¶ 52.
¶ 35 With respect to claims against John and Barbara, we noted that while they could not be
held liable for Lester Jr.’s actions, they could be held liable for their own actions as co-trustees.
Id. ¶ 57. Notably, we did not specifically address any allegations against the Carrie Group and
Lorraine Group Trusts, but we did find that any action taken by John and Barbara as successor co-
trustees was within the statute of limitations period because they “accepted their appointment as
successor trustees in November 2015, with retroactive effect to the day after Lester Jr.’s death on
August 24, 2015.” Id. ¶ 58. We also found that there was no unreasonable delay between the
amended complaint and when John and Barbara’s actions allegedly occurred and therefore, laches
did not apply. Id.
¶ 36 We further observed that the specific allegations against John and Barbara appeared to
focus primarily on three acts: (1) John’s removal of $278,000 from the partnerships’ brokerage
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accounts, (2) John and Barbara’s filing of a counterclaim in this litigation to force the sale of the
remaining equipment at lower prices to the benefit of LDE and the detriment of the trust
beneficiaries, and (3) John and Barbara’s “writing-off” of the trusts’ assets as abandoned, thereby
giving the equipment to LDE for no consideration. Id. We found the first allegation was without
merit because the $278,000 was returned two months later and the terms of the trust agreement
authorized such lending without interest. Id. ¶ 59.
¶ 37 Next, we found that plaintiffs’ claim challenging the sale of the remaining assets was
neither time-barred by the statute of limitations nor precluded by res judicata. Id. ¶ 60.
Specifically, we examined whether John and Barbara’s counterclaim, allegedly pursued in bad
faith, had a res judicata effect on the allegations within the fourth amended complaint. Id. While
John and Barbara had argued that the counterclaim was settled by agreed order and thus had a
preclusive effect for the remainder of the litigation, we determined that an agreed order was not a
judicial determination of the parties’ rights so as to have a preclusive effect on plaintiffs’ claims.
Id. Further, given that the sale of remaining assets had occurred after John and Barbara had
assumed their roles as co-trustees, we found that the statute of limitations also did not preclude the
claim from moving forward. Id.
¶ 38 Finally, we found that claims of improper abandonment of the trusts’ assets were raised
without delay and within the statute of limitations. Id. ¶ 61. Therefore, nothing precluded this cause
of action from proceeding. Id. We stated, “[h]owever, the amended complaint still contains other
allegations that are not specific as to when they occurred, and appear intertwined with the
allegations against Lester Jr.” Id. We reiterated that “John and Barbara may only be held liable for
any actions they took after accepting their appointment as co-trustees” and “that claims against
Lester Jr. through his estate were properly dismissed.” Id.
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¶ 39 On February 4, 2020, this court issued a mandate in accordance with Detterbeck I. The
mandate did not contain any instructions but stated that the circuit court’s decision was “[a]ffirmed
in part and reversed in part.”
¶ 40 B. Litigation on Remand
¶ 41 Following this court’s remand, plaintiffs filed a motion to reinstate the case and for a case
management conference in the circuit court. John, Barbara, and LDE filed a response (the
response), agreeing that the case should be reinstated but asserted that the fourth amended
complaint must be amended to conform with our decision in Detterbeck I. The response reasoned
that the fourth amended complaint continued to “rely on allegations and factual predicates that
[this Court] held inactionable[.]” The response pointed the circuit court to this court’s finding that
“John and Barbara could not be held liable for [Lester Jr.’s] actions as successor trustees,” but
further argued that this court had “identified only three [specific actions] as pleaded in the [f]ourth
[a]mended [c]complaint.” The response also emphasized our finding that the fourth amended
complaint still contained allegations that were unspecific as to the time which they occurred, as
well as allegations that may be intertwined with the allegations against Lester Jr. Last, the response
concluded that because amendments to a complaint were not proscribed by a reviewing court’s
decision, the circuit court was within its discretion to allow a party to amend its pleadings.
¶ 42 Plaintiffs filed a reply, arguing that it was not required to file a new complaint. Plaintiffs
noted that this court had not ordered an amendment to the fourth amended complaint in Detterbeck
I. Plaintiffs stated that this court had restored, “in full without limitation and in its entirety the
claims against the [s]uccessor [t]rustees for their breaches of fiduciary duty.” Plaintiffs also
acknowledged that Detterbeck I did not expressly address claims against LDE or the partnerships,
or the unjust enrichment claim against John or Barbara. Plaintiffs reasoned, however, that every
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defendant should be compelled to answer the remaining claims and move forward with the
litigation.
¶ 43 On July 8, 2020, the circuit court entered an order to reinstate the case. The court did not
address the parties’ arguments regarding amending the complaint, but ordered that defendants
answer “the remaining counts of the fourth amended complaint.”
¶ 44 On August 5, 2020, John, Barbara, and LDE filed a joint section 2-619.1 motion to dismiss
counts IV, V, and VI of plaintiffs’ fourth amended complaint (the motion), which they asserted
had been ‘‘expressly dismissed” by this court in Detterbeck I. First, pursuant to section 2-619 of
the Code of Civil Procedure, the motion argued that all claims related to Lester Jr.’s conduct were
barred by the statute of limitations or laches. Further, the motion argued that this court’s dismissal
of claims against Lester Jr. (Counts I and III) as time barred, affirmed the circuit court’s previous
dismissal of the “related causes of action,” which the motion identified as counts IV through VI.
Thus, the motion reasoned that, as a matter of law, the circuit court was required to dismiss those
counts with prejudice under the law of the case doctrine and laches.
¶ 45 With respect to section 2-615 of the Code of Civil Procedure, the motion repeated the
original arguments raised by the same defendants in Detterbeck I, namely that counts IV through
VI should be dismissed with prejudice for failure to state a claim for civil conspiracy, aiding and
abetting, and unjust enrichment. John, Barbara, and LDE also filed a verified answer and seven
affirmative defenses, some of which realleged that all claims related to Lester Jr.’s conduct were
barred by the statute of limitations, laches, and failure to state a claim. 4
4
Leaf also filed a motion to dismiss counts VII and VIII for similar reasons, asserting additionally
that the law of the case doctrine controlled the remaining allegations in the fourth amended complaint.
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¶ 46 Plaintiffs responded to the motion, arguing that it should be denied. As to counts IV through
VI, plaintiffs criticized the defendants’ “cynical misreading of [Detterbeck I]” and pointed out that
all counts contained allegations specifically against John and Barbara, who, according to plaintiffs,
this court had “unambiguously held *** could be liable for their own conduct.” Plaintiffs also filed
a section 2-615 Motion to Strike John, Barbara and LDE’s affirmative defenses, arguing that three
of the affirmative defenses were improper, while the remaining defenses of statute of limitations,
laches, and failure to state a claim were barred by the law of the case doctrine set forth in
Detterbeck I.
¶ 47 On November 10, 2020, the circuit court entered a written order addressing the pending
motions to dismiss and strike. As to the plaintiffs’ motion to strike, the circuit court dismissed with
prejudice defendants’ fourth and seventh affirmative defense, namely failure to state a claim and
reservation of rights, as improper. The circuit court also dismissed with prejudice defendants’ fifth
and sixth affirmative defenses, namely statute of limitations and laches, based on our holding in
Detterbeck I.
¶ 48 Next, as to John, Barbara, and LDE’s section 2-619.1 motion to dismiss, the circuit court
also dismissed counts IV through VI with prejudice. Although the motion failed to assert under
which subsection of section 2-619 for which it sought relief, the circuit court assessed the motion
pursuant to section 2-619(a)(9). The circuit court’s order to this section of the motion stated, in
full:
“Defendants argue that the appellate court’s decision implicitly precluded
the claims brought in [c]ounts IV through VI. The appellate court applied the
doctrine of laches to deny the remainder of the claims alleging breaches of fiduciary
duty by Lester Jr. and the ‘related cause of action. [(Internal quotations omitted)].
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Count IV alleges a breach of fiduciary duty between the estate of the father, John,
Barbara, LDE, and several other entities. Count V alleges that John, Barbara, and
LDE aided the [f]ather in breaching its fiduciary duty. Count VI alleges unjust
enrichment by the [f]ather, John, Barbara, and LDE. This [c]ourt believes the words
‘and related causes of action’ as utilized by the appellate court preclude all claims
relating to the [f]ather’s conduct.
The appellate court noted that[] [t]he specific allegations against john and
Barbara are primarily focused on three acts, (1) John removed $278,000 from the
partnerships’ brokerage accounts, (2) John and Barbara pursued a counterclaim in
bad faith to force the sale of the remaining equipment at lower prices to the benefit
of LDE and the detriment of the trusts’ beneficiaries, and (3) John and Barbara
wrote-off trusts’ assets as abandoned giving the equipment to LDE for no
consideration in December 2015. [Detterbeck I], 2019 IL App (1st) 181113-U.
The only count in the fourth amended complaint dealing with these three
specific allegations is Count II. Therefore, the Court will grant defendants’ motion
to dismiss Counts IV-VI. [(Internal quotations omitted)].”
¶ 49 On November 12, 2020, plaintiffs moved for reconsideration or, alternatively, a request for
Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) language to pursue an interlocutory appeal.
Of relevance here, plaintiffs contended that the circuit court’s dismissal of counts IV through VI
was improper as each of those counts included allegations against John, Barbara, and LDE with
respect to their actions following their father’s death.
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¶ 50 In response, defendants contended that any such allegations related to John and Barbara’s
actions prior to the death of their father had been eliminated by Detterbeck I, and that plaintiffs
had ample opportunity to amend their complaint to conform to this court’s holding.
¶ 51 In reply, plaintiffs admitted that the allegations contained within counts IV through VI
contained allegations against Lester Jr. as well as John and Barbara, which had “understandably
*** created confusion.”
¶ 52 On January 4, 2021, the circuit court denied the request for reconsideration but granted
plaintiff’s request for Rule 304(a) language. This interlocutory appeal followed.
¶ 53 II. ANALYSIS
¶ 54 On appeal, plaintiffs argue that the circuit court erred in dismissing their claims for civil
conspiracy, aiding and abetting a breach of fiduciary duty, and unjust enrichment against the
partnerships and LDE with prejudice. They assert that these claims are based on the conduct of the
successor co-trustees rather than Lester Jr., and therefore, are not precluded by Detterbeck I.
Plaintiffs contend that the circuit court misread this court’s order and therefore, its decision to
dismiss counts IV through VI violates the law of the case doctrine. Defendants argue in response
that, based on the law of the case, the circuit court properly dismissed counts IV, V and VI. They
contend that in affirming dismissal of the claims against Lester, Jr., this court dismissed “all related
claims” which they interpret to include all claims alleged in those three counts.
¶ 55 The narrow issue before us is whether the circuit court’s dismissal of counts IV, V, and VI
of the fourth amended complaint was consistent with the Detterbeck I, that is, with the law of the
case doctrine. Accordingly, we set forth the defining principles of the doctrine, as well as the
standard of our review. The law of the case doctrine bars relitigating an issue previously decided
in the same case. Long v. Elborno, 397 Ill. App. 3d 982, 989 (2010). Simply put, “when a court
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decides upon a rule of law, that decision should continue to govern the same issues in subsequent
stages in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983). Application of the
doctrine is not limited to the court’s explicit decisions but applies equally to those issues decided
by necessary implication. CE Design Ltd. v. C & T Pizza, Inc., 2020 IL App (1st) 181795, ¶ 32.
The doctrine protects the parties’ settled expectations, ensures uniformity of decisions, maintains
consistency during the course of a single case, effectuates proper administration of justice, and
brings litigation to an end. Petre v. Kucich, 356 Ill. App. 3d 57, 63 (2005). Issues previously
decided include issues of both law and fact. Alwin v. Village of Wheeling, 371 Ill. App. 3d 898,
910 (2007). “Questions of law that are decided on a previous appeal are binding on the trial court
on remand as well as on the appellate court in subsequent appeals.” Long, 397 Ill. App. 3d at 989.
Even so, the doctrine is not a limit on the power of the court. Lurie v. Wolin, 2017 IL App (1st)
161571, ¶ 30 (quoting Messenger v. Anderson, 225 U.S. 436, 444 (1912)). “[A] court may depart
from the law of the case to correct clerical mistakes, to clarify its opinion or mandate, to remedy
fraud on the court or other misconduct, to avoid divergent results in cases pending simultaneously,
or to minister to other similar aberrations.” Id. (quoting Laffey v. Northwest Airlines, Inc., 642 F.2d
578, 585-86 (D.C. Cir. 1980)). Because application of the law of the case doctrine is a question of
law, our standard of review is de novo. In re Christopher K., 217 Ill. 2d 348, 363-64 (2005).
¶ 56 Prior to addressing the merits, we first consider the circuit court’s jurisdiction upon the
remand in Detterbeck I. A reviewing court’s mandate vests the trial court with jurisdiction only to
take action that complies with the mandate. Fleming v. Moswin, 2012 IL App (1st) 103475-B, ¶
28. A trial court may not exceed the scope of the mandate and must obey precise and unambiguous
directions on remand. Id. The propriety of the trial court’s action on remand is to be determined
from the appellate court’s mandate, as opposed to the appellate court’s opinion. Id. However,
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where specific directions are not given within the mandate, the trial court should examine the
opinion and determine what proceedings would be consistent with the opinion. Id. “ ‘[A]ny other
order issued by the trial court is outside the scope of its authority and void for a lack of jurisdiction.’
” Id. (quoting People ex rel. Bernardi v. City of Highland Park, 225 Ill. App. 3d 477, 481 (1992)).
¶ 57 Our mandate following our order in Detterbeck I contained no specific instructions. As
such, we must revisit the substance of the order, which we have set forth in detail above, to
determine the propriety of the trial court’s action on remand.
¶ 58 A. Dismissal of Counts IV, V and VI with Prejudice
¶ 59 As previously noted, plaintiffs did not seek to amend their complaint on remand and thus
the same allegations that were before us in Detterbeck I are before us in this appeal. The parties
concede, and the circuit court’s order is consistent, that those counts in the fourth amended
complaint that allege claims against Lester Jr. were properly dismissed with prejudice on remand
as law of the case. In its dismissal order, the circuit court noted that in Detterbeck I, we “had
applied the doctrine of laches to deny the remainder of the claims alleging breaches of fiduciary
duty by Lester Jr. and the related causes of action.” The circuit court stated that the phrase “related
causes of action” as utilized by this court “preclude[d] all claims relating to the Father’s conduct.”
The circuit court then proceeded to quote our discussion of the sufficiency of the remaining claims
against John and Barbara, specifically as to the three main categories of allegations against them,
and ultimately held that “[t]he only count in the complaint dealing with these three specific
allegations is [c]ount II.”
¶ 60 The circuit court properly applied our holding in Detterbeck I to dismiss any allegations
remaining against Lester Jr. Further, the circuit court correctly construed “related causes of action”
to refer to claims against Lester, Jr. However, the circuit court, in focusing on the three main
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categories of allegations against John and Barbara, apparently overlooked that Detterbeck I also
restored causes of actions against, among others, John, Barbara, and LDE by distinguishing those
allegations from those directed against Lester Jr. The circuit court’s dismissal with prejudice
assumed that there were “no set of facts [that could be] proven that would support the plaintiff’s
cause of action.” Nosbaum v. Martini, 312 Ill. App. 3d 108, 113 (1st Dist. 2000). However, we
determined in Detterbeck I that were certain allegations contained within counts IV, V and VI that
could support the plaintiff’s causes of action, once the plaintiffs addressed the issues related to the
complaint’s unclear timelines and comingled allegations. By dismissing the entirety of counts IV
through VI with prejudice, the circuit court disregarded the law of the case set forth in Detterbeck
I, where we held that although causes of action against Lester Jr. were no longer viable, the
plaintiffs’ cause of action against John, Barbara, and LDE, when separate and discernible from
that of their father, could move forward.
¶ 61 If a pleading is insufficient in substance or form, the court may order a fuller more
particular statement. See 735 ILCS 5/2-612 (West 2020). That said, clearly it was not the circuit
court’s job to parse out the details of the complaint to conform to our holding in Detterbeck I.
Indeed, plaintiffs could have avoided this appeal simply by amending their complaint to rectify
the deficiencies identified in Detterbeck I. Even so, full dismissal of counts IV through VI, which
would result in the dismissal of some claims we found actionable in Detterbeck I, would fail to
protect the parties’ settled expectations based on Detterbeck I and the proper administration of
justice. See Petre, 356 Ill. App. 3d at 63. Further, affirming the circuit court’s order in its entirety
would run afoul of the well-established principle that questions of law decided on a previous appeal
are also binding not just on the trial court, but also on the appellate court in subsequent appeals.
See Long, 397 Ill. App. 3d at 989. Thus, we conclude that the circuit court’s dismissal of counts
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IV, V and VI of the fourth amended complaint was in violation of the law of the case and therefore
we affirm in part and reverse in part the circuit court’s dismissal order.
¶ 62 Before concluding, we pause to address plaintiffs’ argument in this appeal that the
allegations or counts are specific because they incorporated by reference the facts outlined earlier
in the complaint. We previously held, regarding this same complaint, that the allegations, as
drafted, did not set forth with specificity the timeframe for when the misconduct occurred and
appeared to be premised on Lester Jr.’s conduct. Although we did not explicitly order plaintiffs to
amend their complaint, we specifically noted areas in which the complaint was deficient.
¶ 63 The Illinois Code of Civil Procedure mandates that “[a]ll pleadings shall contain a plain
and concise statement of the pleader’s cause of action” and that “[e]ach separate cause of action
upon which a separate recovery might be had shall be stated in a separate count *** to be divided
into paragraphs [with] each paragraph containing, as nearly as may be, a separate allegation.” See
735 ILCS 5/2-603(a), (b) (West 2020). “Concise and clear pleadings are vital to the administration
of justice” and “[n]o party should be called upon to answer or defend the redundant, jumbled[,]
and cryptic pleadings filed by plaintiff’s counsel.” Id. Further, “no court should be forced to expend
so much time and energy attempting to decipher them.” Id. “[A] complaint may be dismissed if it
is drafted in such a manner as to render any attempt to answer futile.” Rubino v. Circuit City Stores,
Inc., 324 Ill. App. 3d 931, 938 (2001).
¶ 64 Admittedly, plaintiffs’ fourth amended complaint is not indecipherable. Neither is it so
clearly nor concisely drafted so as to comport with the rules governing pleadings. Plaintiffs’
complaint levies 201 allegations against multiple defendants, some of whom have been dismissed,
others who have not, all tied within the same counts and allegations. Although plaintiffs are correct
in that we did not issue a mandate to specifically amend their complaint, clearly in Detterbeck I
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plaintiffs were put on notice that the complaint was in need of cleanup. Moreover, as noted by the
defendants both in filings in the circuit court and on appeal before this court, plaintiffs were urged
to amend the complaint to conform to our holding in Detterbeck I. Thus, although no specific
instructions to amend were included in this court’s mandate back to the circuit court, given the
number of parties, coupled with the complexity of the allegations, it would seem to us that
amendment of the complaint to conform to the holdings in Detterbeck I would not only have been
compliant with the rules of civil practice, but also prudent.
¶ 65 In sum, we affirm in part and reverse in part the circuit court’s order. To the extent that
allegations contained within counts IV through VI of the fourth amended complaint reference any
actions taken by Lester Jr. prior to his death in 2015, the circuit court’s order is affirmed, and those
counts are dismissed with prejudice pursuant to the law of the case doctrine. However, to the extent
that such counts allege any actions taken by John and Barbara, as successor co-trustees and in
control of LDE and the various partnerships following August 24, 2015, the circuit court’s order
is reversed, and those allegations are restored. Lest there be any confusion on remand, plaintiffs
are directed to amend their complaint to conform to Detterbeck I and now also to this holding. We
reiterate our observation in Detterbeck I that counts IV through VI comingle allegations between
Lester Jr. and John, Barbara, and LDE, and must be amended to prevent further delay, confusion,
and waste of court resources.
¶ 66 B. The Parties’ Section 2-615 Arguments
¶ 67 On a final note, the circuit court dismissed counts IV, V and VI of plaintiff’s fourth
amended complaint pursuant to section 2-619 of the Code and made no ruling on defendant’s
combined section 2-615 motion. The defendants now ask, in the event dismissal pursuant to section
2-619 is not affirmed, that we consider affirmance of the court’s dismissal pursuant to section 2-
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615. Specifically, defendants seek dismissal of counts IV (civil conspiracy), V (aiding and abetting
civil conspiracy), and VI (unjust enrichment) for failure to state a claim. We decline defendants’
entreaty and leave this matter in the same procedural posture as we left it on our initial remand.
¶ 68 III. CONCLUSION
¶ 69 For the reasons stated, we affirm in part and reverse in part.
¶ 70 Affirmed in part and reversed in part, with directions.
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Detterbeck v, Detterbeck
Court: Appellate Court of Illinois
Date filed: 2022-05-03
Citations: 2022 IL App (1st) 210042-U
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