2017 IL App (3d) 160393
Opinion filed October 30, 2017
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2017
STEVE MORROW, ERIC CHAMBLISS, ) Appeal from the Circuit Court
REBECCA MCGOWEN, GERARD BEACH, ) of the 13th Judicial Circuit,
and MIDWEST GREYHOUND ADOPTION, ) LaSalle County, Illinois
INC., )
) Appeal No. 03-16-0393
Plaintiffs, ) Circuit No. 13-L-118
)
v. ) The Honorable
) Troy Holland
RINA PAPPAS, SHANE BURROWS, KEVIN ) Judge, Presiding
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). )
____________________________________________________________________________
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
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on June 27, 2012, after being found nearly unresponsive at her home. Denman was transferred
between hospitals 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
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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.
¶8 Plaintiffs filed their original complaint on September 24, 2013. They alleged intentional
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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
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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.
¶ 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
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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
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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 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
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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
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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 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.
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¶ 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
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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. Adler,
2013 IL App (1st) 121066 at ¶ 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 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
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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
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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.
¶ 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
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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
15
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.
¶ 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.
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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,
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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 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
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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 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).
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¶ 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
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¶ 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 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
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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 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
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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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Morrow v. Pappas
Court: Appellate Court of Illinois
Date filed: 2017-10-30
Citations: 2017 IL App (3d) 160393, 90 N.E.3d 501
Copy CitationsCombined Opinion