Two weeks ago, a jury in Knox County, Illinois found testamentary documents leaving farmland to Penny and Tonny Williamson were invalid due to fraud and coercion.
But those documents are not and the case is up on appeal. The jurors were mistaken and Decedent Fred clearly loved Penny and Tonny Williamson, as evidenced by these videos:
- Penny and Tonny can always stay with me.
- I want Penny and Tonny to take care of me
- I want my life prolonged for as long as possible
- I don’t want to sue Penny and Tonny
- I don’t have a lawyer (referring to Blake)
- Haynes takes me to places to do things I don’t understand
- Penny and Tonny to take care of my trust (property) forever and ever
And here is yet another Post Trial motion which explains as follows:
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT OF ILLINOIS
FREDERICK J. STEGALL, GALESBURG )
RIFLE CLUB, an Illinois not-for-profit )
Corporation, and THE CATHOLIC DIOCESE )
OF PEORIA, an Illinois Religious corporation, )
vs. ) Case No. 21-MR-21
TONNY J. WILLIAMSON and )
PENNY J. WILLIAMSON, )
TONNY WILLIAMSON’S POST-TRIAL MOTION
NOW COMES Defendant, TONNY J. WILLIAMSON (“Tonny”), by and through her
attorney, JEFFREY A. RYVA of QUINN JOHNSTON, and, for her Post Trial Motion, states:
I. THE COURT SHOULD ENTER JUDGMENT JNOV FOR TONNY
- A Court must enter a directed verdict when all the evidence, viewed in its light
most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict
would ever stand. Pedrick v. Peoria Eastern Railroad Company, 37 Ill.2d 494 (1967). In a
civil case to which the clear and convincing standard applies, the judge must consider the
applicable burden when deciding whether to send a case to the jury; the determination must be guided by the prism of the substantive evidentiary standards that apply to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
- Turning first to Plaintiffs’ fraudulent misrepresentation claim, it should not have
survived. The allegation drawn directly from the Second Amended Complaint (p. 7 para. 43 D.) was simply that Defendants made a fraudulent misrepresentation of fact as “to the effect of the Irrevocable Trust, i.e., that Stegall could amend its beneficial provisions.” Plaintiffs’ original Proposed Jury Instruction 14 again described the fraud claim solely in terms of a
misrepresentation to Stegall “that he could change the beneficiaries of the trust document.”
Their Instruction 20 properly placed a clear and convincing burden of proof upon Plaintiffs for fraud. However, there was not a shred of evidence that Defendants made any statement about irrevocability of the trust or the ability to “amend its beneficial provisions” or “change the beneficiaries,” whether true or false. Attorney Holland exclusively communicated with Stegall about these issues. Plaintiffs’ fraud case failed at the first element, because there was no representation made at all.
- Continuing through the elements, Defendants did not make a false statement;
they did not make any statement. There could not have been a false statement of material fact, obviously, if there was no statement made true or false. See also discussion of mutual mistake claim below regarding the “falsity” and “materiality” issues in conjunction with the fact that Stegall could at any time while alive have directed property transfers for his enjoyment or utilized a decanting power under the then exiting Trust Code. Defendants could not have intended to make a statement to induce Stegall to rely upon it if they never made one at all. Stegall could not, as a matter of law, have reasonably believed or justifiably relied upon “the statements” if none were made in any event. None of these fraud elements were proved one iota and certainly not by clear and convincing evidence.
- A fraudulent misrepresentation to be actionable must be one of fact. Plaintiffs
alleged that the supposed fraud related to the effect of the Irrevocable Trust. This was a legal statement if anything. A misrepresentation of law is not a misrepresentation of fact and
accordingly is not actionable. Hanning v. Murphy, 83 Ill.App.3d 1130 (1980).
Penny’s Motion to Continue had summarized her view:
The first proposition that Plaintiffs must prove is “that defendants made
or caused to be made false statements of material fact to Stegall.” No
witness has testified to any specific false statement of fact either
defendant made to Mr. Stegall. Plaintiffs allege that the attorney who
drafted Mr. Stegall’s Trust made a false statement of law regarding the
ability to modify the irrevocable trust document. There is no evidence
that Defendants had any direct or indirect involvement in the making of
- Similarly, Plaintiffs’ mutual mistake theory was woefully insufficient. The
Second Amended Complaint alleged at p. 7 para. 43 E., that the mutual mistake of fact on the part of Stegall and Holland was regarding the effect of the designation of the trust as irrevocable “in that both believed that Stegall could modify the beneficial provisions of the trust at a later date.” Plaintiffs’ Instruction 14 was in substantially the same form and content. And their No. 22 required a clear and convincing burden of proof of mutual mistake.
- As noted above for fraud, this was a legal issue, not a factual one. A mutual
mistake must be of fact, not of law, and it is not a mistake of fact if the claimed fact is as to
what the law is. Cameron v. Bogusz, 305 Ill.App.3d 267 (1999). In McCarthy v. McCarthy, 9
Ill. App. 2d 462 (1956), the Court rejected a mistake claim stating: “We do not think there was a mistake. Plaintiff had a mistaken opinion of the legal effect of the document. In Holbrook v. Tomlinson, 304 Ill. 579, the court said that the erroneous advice of an attorney is not sufficient ground for relief in equity as to an alleged mistake in a written instrument.”
- Here, the only evidence Plaintiffs adduced is that neither Holland nor Stegall
were mistaken. Stegall was never shown the internal memo Holland did for the file after Fred
left. He cannot be mistaken about something he was never shown. The letter exhibit said clearly the trust could not be altered. If Stegall saw anything it was that, as Holland testified the Memo was not seen by Fred. Holland said Stegall left with a clear understanding of what he had done and signed. This included the issue Plaintiffs have raised about amending. Holland’s letter he recalled showing Fred at least said he should call Holland if he later had questions – and Holland never received a call back from Stegall. Even if somehow Stegall was confused or even mistaken, this does not mean that Holland was.
- As additionally noted in Penny’s Motion to Continue, there was, as a matter of
law, no mistake and certainly not one of fact per paragraph SECOND of the trust document:
While the terms of an irrevocable trust cannot be changed, that does not
mean that the transfer of property he was considering to the Galesburg
Rifle Club could not be achieved through other means.
i. FIRST, the co-trustees had discretion to distribute any trust
property in accordance with an ascertainable standard for, inter alia, Mr.
Stegall’s, “comfort, companionship [and] enjoyment.” At any time during
his lifetime, Mr. Stegall could have instructed his co-trustees to transfer
the 35-acre tract to the Galesburg Rifle Club under this standard.
ii. SECOND, an irrevocable trust does not necessarily mean that it
is unchangeable. Irrevocable trust terms can be altered when some or part
of the trust’s assets are poured into a new trust with different terms
through the process of decanting. The Illinois Legislature enacted a
decanting provision when it repealed the former Trusts and Trustees Act
(Article 12 of the Trust Code, titled “Trust Decanting,” defines and
authorizes the exercise of decanting power or which means the power of
an authorized fiduciary under this Article to distribute property of a first
trust to one or more second trusts or to modify the terms of the first trust.
760 ILCS 3/1202(4). This Article applies to an express trust that is
irrevocable. 760 ILCS 3/1 203(a).
- The new Code became effective in January 2020. The evidence clearly showed
that Attorney Blake, who purports to concentrate in this area, represented Stegall throughout the period from July 6, 2020, through the date of Fred’s passing in early 2022. He obviously knew per his admission when testifying that the Trust existed at least by early 2021. The whole basis of this very suit filed in February 2021 was that the July 2, 2020 trust document was no good or at least mistakenly signed. That entire time a decanting power would have been available to do what Plaintiffs claim could not have been done after July 2, 2020. That no one had Stegall try a
decanting process before he passed is not Defendants’ fault; in actuality, such circumstance
completely precludes any notion that the supposed mutual mistake of fact was even material.
See Keller v. State Farm, 180 Ill. App. 3d 539 (materiality is an element of a mistake claim).
See also Village of Oak Park v. Schwerdtner, 288 Ill. App. 3d 716 (a person’s mistake about the
effect of an instrument is not sufficient to void it).
- Two attorneys (Cassidy and Egan) testified further that, even with an irrevocable
trust document, if the settlor, trustee and beneficiary all agree to do a transaction that might
otherwise not be directly allowed in the document this can be effectuated. The evidence even
produced by Plaintiffs showed Defendants said they were just managing Fred’s property and
otherwise assisting him in 2021, when he had not been cared for in the least by others. There is
no evidence then other than that Fred enjoyed being with Defendants and still trusted them. Yet
there was no evidence offered to show Stegall ever even sought to have any property transfer
occur by agreement. Again, this shut down any claim that any mistake here, or misstatement,
Mental Capacity Claim
- Regarding the temporary incapacity allegations, the Court must again focus upon
what was alleged. The Second Amended Complaint, in paragraph 24, stated that Stegall would
have been meeting with Attorney Holland at 1:30 p.m. on July 2, 2020. Paragraph 35 then
stated “Stegall was seen in the emergency room at OSF at 9:18 p.m. suffering from dehydration
and hyponatremia – with symptoms documented as confusion and disorientation.” The
condition was only listed as mild. No evidence was presented of an actual cause and effect.
And there was no proof that this alleged condition of ill-being existed at the time Stegall and
Holland had met. The only actual evidence at that time was that Fred was fine then. There was
no explanation offered by any competent medical testimony that such alleged confusion and
disorientation eight hours after the Stegall/Holland meeting had anything to do with what
happened essentially a whole work-day earlier. And it was not severe enough certainly to permit
a reasonable inference Holland was wrong at the time and when he testified.
- Moreover, the test of mental incapacity to make a Will or Trust is not whether
someone is confused or disoriented later. As noted in Plaintiffs’ Instruction 19, the sole
questions are whether the Testator had the ability to know the natural objects of his bounty and
property interests and formulate a plan to dispose of them. The test is not whether Fred knew
these but only if he was capable of knowing them. The law presumes soundness of mind, which
Plaintiffs correctly agreed must be disproved by clear and convincing evidence. See Instruction
- Fred’s capacity could not be inferred merely from old age, physical illness or defective
memory. In re Estate of Gruske, 179 Ill. App. 3d 675, 678 (1989) Again, not one morsel of
proof was offered that Stegall, when with Holland, lacked any of the capacity required by
Illinois law. Interestingly, Plaintiffs relied upon a legal document from the very next day that
Stegall purportedly signed. Once more, there was no medical testimony to explain how Stegall’s
mental capacity could have returned so soon afterwards and yet his alleged lack of capacity can
be retroactively established somehow to when he was with Holland.
- One of Plaintiffs’ claims was based upon establishing a presumption of undue
influence. As Plaintiffs’ Jury Instructions conceded, there must be proof, by clear and
convincing evidence, that there was a relationship between Defendants and Stegall, whereby
they exercised dominance over him, and Defendants caused the preparation of the documents
Stegall signed on July 2, 2020.
- On the first element discussed, Plaintiffs did not establish a fiduciary relationship
as a matter of law stemming from any power of attorney document signed by Stegall before July
2, 2020. As a matter of law, the health care POA given Penny in mid-June 2020 did not create a
fiduciary relationship as to property matters. In re Estate of Stahling, 2013 IL App (4th)
- The June 30, 2020 POA document specifically stated it never created any authority
unless and until Stegall was determined to be disabled. This is quite like a successor agent or
trustee who has no power until another event occurs. There was no evidence that this “trigger”
ever occurred such that Defendants had a formal POA principal-agent relationship with Stegall.
- The Supreme Court in In re Estate of Shelton, 2017 IL 121199 recited these
governing principles. The Power of Attorney Act, which codifies an agent’s fiduciary duty,
recognizes that it is the agent’s exercise of power pursuant to the authorizing document which
triggers the agent’s duty to the principal. … By definition, a successor agent’s authority to act
on behalf of the principal is contingent upon the initial agent’s resignation, death,
incapacitation, or refusal to serve. … Until one of these events occurs, the successor agent has
no authority to act. Under the Power of Attorney Act, if an individual cannot exercise the
powers granted by the agency, he has no duty to act in good faith for the principal’s benefit. 755
ILCS 45/2-7(a) (West 2010). Thus, we can infer that the Power of Attorney Act does not
impose any duties on a successor agent until that person is authorized to exercise the powers set
forth in the power of attorney. A written power of attorney must be strictly construed so as to
reflect the clear and obvious intent of the parties.” Fort Dearborn Life Insurance Co. v.
Holcomb, 316 Ill. App. 3d 485, 499 (2000)
- To create any fiduciary relationship, the claimed fiduciary must accept and
exercise the powers delegated by the other person. The execution of a statutory short form
power of attorney, alone and without evidence of acceptance by the named agent, is insufficient
to create a fiduciary relationship between the principal and that agent. See Stahling v. Koehler,
2013 IL App (4th) 120271. A POA must be construed to only determine what powers exist in
the present sense. Id.
- In re Estate of Coffman, 2022 IL App (2d) 210053, governs. Drawing on
Stahling, and citing Shelton, the Court recognized that for a fiduciary relationship to create the
presumption it must be narrowly construed focusing on whether the supposed agent actually
accepted and exercised an existing power, before execution of the contested document,
regarding that specific transaction. An action taken after the will was signed and as to a different
event did not qualify.
- The Court relied upon three provisions of Coffman’s POA document that are
exactly the same as Stegall’s June 30, 2020 document. The first stated: “THIS FORM DOES
NOT IMPOSE A DUTY ON YOUR AGENT TO EXERCISE GRANTED POWERS; BUT
WHEN POWERS ARE EXERCISED, YOUR AGENT WILL HAVE TO USE DUE CARE TO
ACT FOR YOUR BENEFIT AND IN ACCORDANCE WITH THIS FORM ….” Pls. Ex. 2 p.
2 Intro paragraph. The second was: “The agent will be under no duty to exercise granted powers
or to assume control of or responsibility for the principal’s property or affairs; but when granted
powers are exercised, the agent will be required to use due care to act for the benefit of the
principal in accordance with the terms of the statutory property power ….” Id. p.7 two-thirds of
the way through Sec. 3-4. The third gave the alleged “agent” no power to make or change a
will. Id. p.10 from section (n). Because of these restrictions, no fiduciary relationship was
determined to exist, as a matter of law.
- The “relationship” issue should have been disposed of by directed verdict. Other
than fiduciary relationships created as a matter of law, such a relationship only arises where one
party asserts dominance over the other with resulting dependence on the other as the dominant
personality. The dominant party must accept the confidence and maintain a resulting
superiority over the subservient party. In re Estate of Kieras, 167 Ill.App.3d 275 (1988).
- Here, there simply was no evidence whatsoever of Defendants accepting and
exercising such a dominance, superiority, and influence over Stegall. The jury instructions
required proof by clear and convincing evidence that the defendant exercised dominance over
the other individual at the time the document was signed. Such exercise of dominance can only
be established by proof that is “clear, convincing, and so strong, unequivocal and unmistakable
as to lead to but one conclusion.” Swenson v. Wintercorn, 92 Ill. App. 2d 88, 100 (1968). There
was no evidence of this. Mere speculation was not enough.
- There was another flaw in Plaintiffs’ case. There was no evidence of the kind
and quality that the Illinois reviewing courts insist upon under the causation element for raising
the presumption. For instance, in Anthony v. Anthony, 20 Ill.2d 584 (1960), the case was taken
from the jury by directed verdict. The beneficiary had driven the testator to a location where his
lawyer was and “took him in” to the lawyer’s actual office. The beneficiary was not in the
presence of the testator when he signed the Will. That individual was in the outer office when
the document was signed. There was no proof that the beneficiary had attempted to persuade
the testator to talk to an attorney regarding what his estate plan should be.
- In In re Estate of Walls, 203 Ill.App.3d 574 (1990), the Appellate Court noted
that more than the mere existence of a relationship between beneficiary and testator must be
shown to raise the presumption; the beneficiary must have participated in procuring the
execution of the Will. The trial court granted judgment N.O.V. on the lack of evidence of such
causation. The beneficiary had accompanied the testator to the lawyer’s office. But there was
no evidence the beneficiary discussed with the testator what the terms of his Will should be, and
no evidence either that he had secured witnesses for the decedent. The opinion states that “the
evidence presented, without more, showed the decedent initiated the idea of changing his Will
for reasons that may never be known.” Id. at 581. The Appellate Court also made clear that the
plaintiff’s argument about conflicting statements between trial and deposition testimony was of
no moment. While the Plaintiffs had argued this was substantive evidence of undue influence,
the Court noted there was no case which supported that proposition and: “further, while the fact
[the beneficiary] gave conflicting testimony reflects on his credibility, it does not constitute
evidence of procurement of the Will, which plaintiffs wholly failed to prove.” Id.
- In re Estate of Letsche, 73 Ill.App.3d 643 (1979), involved the defendant
testifying she had nothing to do with the actual preparation of the Will. She was not present
when it was signed. She merely read the lawyer over the phone what the testator stated he
wanted. This was not sufficient participation whatsoever, and a directed verdict for the
respondent was affirmed.
- Even if the presumption case had been made, the evidence presented to the Court
was sufficient to rebut it and eliminate the presumption claim from the case. This was a question
of law for the Court based upon all the evidence heard. The cases suggest that only if the
defendant-lawyer is the one who does the will and receives a significant benefit does the
defendant have a clear and convincing burden. If “some evidence” comes in for other types of
relationships, the presumption drops from the case.
- Franciscan Sisters v. Dean, 95 Ill. 2d 452 (1983), held even if clear and
convincing evidence were required for a lawyer to rebut the presumption, he had done so on
facts indistinguishable from ours: “We now find that measured by a “clear and convincing”
standard, the evidence brought forward by Mr. Dean was sufficient to rebut the presumption of
undue influence. The appellate court was correct in recognizing the critical question to be Mrs.
Messmer’s state of mind on February 7, 1978, the day that she signed the will. The time the will
was executed is the period we must scrutinize; what Mrs. Messmer felt on a prior occasion or at
a later date is irrelevant. It was established that although the testator was old, she was alert and
intelligent. She managed her own personal and business affairs prior to and during the period in
which the contested will was executed. [Both witnesses] concluded that the will represented
Mrs. Messmer’s wishes [and] … were convinced that she was aware that Mr. Dean was made a
substantial beneficiary under the will and that is what she wanted to do. We conclude that
the evidence Mr. Dean presented is sufficient to overcome the presumption of undue influence.
In accord with Thayer’s theory in effectively rebutting the presumption, the “bubble” has burst
and the presumption of undue influence has vanished.” This Court was bound to follow this
precedent and should have stricken the presumption claim from the case.
- The undue influence verdict cannot be sustained. Allowing the jury to rule on
the presumption case made moot whether regular undue influence was found. The presumption
case should not have been allowed to the jury and certainly not on instructions with an easier
burden of proof to raise the presumption Defendants actually rebutted.
Punitive Damages Claim
- The claim for punitive damages should have been dismissed outright. The fraud
claim upon which it is predicated failed, and so too must that component. It is a question of
law whether the facts of the particular case bring it within the rule in which punitive damages
may be assessed. Eshelman v. Rawalt, 298 Ill. 192, 198 (1921); the rule stated therein is:
“Punitive, vindictive or exemplary damages are allowed in this State where a wrongful act is
characterized by circumstances of aggravation, … but to warrant an allowance of such
damages the act complained of must not only be unlawful but must partake of a wanton and
malicious nature. … The courts recognizing the doctrine within its proper scope ought to
exercise a high degree of watchfulness to prevent it from being perverted and extended
beyond the real principles upon which it is based by allowing plaintiffs, through the
instrumentalities of instructions to the jury, to characterize the acts of the defendant with
degrees of enormity and turpitude which the law does not affix to them.” Id. at 197.
Plaintiffs’ claim just did not meet the strict test.
II. THE JURY’S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE REQUIRING A NEW TRIAL; CUMULATIVE ERROR AND
PASSION AND PREJUDICE TESTS HIGHLIGHTED
- For the same reasons set forth above, a new trial is at least required on all counts
and claims. In the alternative, the balance of this Motion addresses many other claimed errors
before and at trial. Each is sufficient alone to require a new trial. However, Tonny strongly
urges that it is the cumulative or collective effect of all or at least many of them which denied
Defendants a fair trial. See People v. Redmon, 2022 IL App (3d) 190167 (Illinois recognizes
concept that individual claims of error must also be considered in their totality to determine if
their cumulative effect denied a party a fair trial). Also, Illinois courts will reverse a verdict,
whether punitive or otherwise, like for compensatory relief, if based upon passion or prejudice
of the jury. Richardson v. Chapman, 175 Ill. 2d 98 (1997). The arguments made in Section IV
below therefore do not apply only to the ridiculous punitive damage awards, but, on their face,
in amount and timing considerations, show Defendants are entitled to a completely new trial. If
there ever has been a case where passion and prejudice were written all over, it is one where a
jury basically seeks to destroy parties by awarding sums many times their net worths.
III. THE COURT ERRED IN DENYING THE CONTINUANCE AND STAY
- A number of motions to extend discovery and continuance requests were made
by both Defendants and erroneously denied. For reasons stated therein, those motions should
have been granted. Prejudicial error occurred because of those rulings.
- There was a substantial change in circumstances since the Court Order of
September 9, 2022, confirming rulings made September 7, 2022, setting this case for a February
27, 2023 trial date. At the time, there was no Will Contest even on file. This meant the Court
had not fully resolved whether the cases dealing with the July 2, 2020 and July 6, 2020
documents should be tried together, after a reasonable period of discovery in the Will Contest.
- There also remained an unresolved Motion to Remove F&M Bank as executor,
and counsel, with the bank specifically taking the position that an evidentiary hearing was
required for resolution of that motion.
- As shown below, there was an absence of material evidence under Illinois
Supreme Court Rule 231(a). Essentially, discovery was cut off right after the parties were at
issue when Answers were filed, in the summer of 2022, to the operative Second Amended
- For these reasons as explained in detail below, Tonny requested the Court reconsolidate the cases for trial such that the Court in a single jury trial could resolve the issue of
validity of both sets of documents in the interest of judicial economy and costs to various
litigants, set a proof of will hearing before the jury trial and also provide a reasonable period of
discovery, as this Court said it would be providing, for the Will Contest portion of the combined
matter. In the alternative, for other reasons detailed, the Court should have continued the case
of 21 MR 21 for some subsequent calendar to permit the matter of the motion of F&M Bank to
be heard, after a reasonable period of discovery on the motion to remove itself, or at a
minimum, to be heard at a reasonable time and date.
- After extensive briefing and argument, the Court made various rulings on
September 7, 2022 that became incorporated into its September 9, 2022 Order. On April 18,
2022, Attorney Nepple had filed on behalf of Defendants a document requesting that the July 2,
2020 Will be admitted to probate. However, the petition also made vague reference to a will
contest. There was no jury demand associated with the April 18, 2022 filing, but a general jury
demand was made on June 24, 2022 for Defendants. This was well before Defendants answered
the operative Second Amended Complaint later that Summer.
- When the Court considered whether to sever 21 MR 21 from 22 PR 12, the net
effect of the Nepple filing came to the forefront. Plaintiffs maintained that the April 18, 2022
filing was for the will contest and that the June 24, 2022 subsequent jury demand was
ineffective. Defendants countered that the April 18, 2022 Nepple filing was not a will contest at
all, such that they still had six months from the date the July 6, 2020 will was admitted to
probate on March 8, 2022 to file a will contest. At the same time, the Court considered whether
Defendants were entitled to a jury trial in 21 MR 21 and answered affirmatively.
- The Court’s September 9, 2022 Order, in paragraph 9, essentially agreed that the
April 18, 2022 petition was insufficient to have the Court declare a will contest. Defendants
then filed their petitions to contest the purported July 6, 2020 will within six months of March 8,
- The Court also correctly noted that as of the time it was making its September 7, 2022
ruling, there was no petition on file to which a jury trial right existed in 2022 PR 12.
- The Court must keep in mind that when it entered its September 9, 2022 Order, it
was basically confirming the status of matters as of September 7, 2022. What happened right
after that was of major consequence. At the time of the Court ruling, later confirmed by written
Order, there was no will contest on file whatsoever. In probate matters, there are extremely
limited circumstances where a jury trial attaches. But a will contest is clearly one of them. So,
the Court was absolutely correct that as of September 7, 2022, there was no will contest and
therefore nothing of record in either 22 PR 12 or 21 MR 21, other than 21 MR 21 itself, to
which a jury trial right attached. Nevertheless, as soon as Defendants filed their Will Contest
Petitions, the very next day in fact, the claims were on file to which a jury trial right attached,
namely a statutory right to contest a will.
- Tonny maintains that the sole reason for the severance became a moot point once
the will contest was on file with a corresponding jury trial right. The Court, noting only one
case, 21 MR 21, had a proper jury demand on file at the time, set the case for the February,
2023 jury call. At that point, there being nothing else to which a jury right attached, the Court
again correctly noted that 22 PR 12 matters would be heard by the Court in bench trial format
for future evidentiary hearings. But as stated things quickly changed. On Tonny’s motion, the
cases should have been reconsolidated. This was especially because the Court ultimately denied
the Motion to Dismiss the will contest.
- Here, it was absolutely clear that Plaintiffs intended to include as part of their 21
MR 21 case, against the July 2, 2020 documents, that Mr. Stegall executed a July 6, 2020 will.
The Court admitted the document in evidence at trial without any limiting order. Plaintiffs
tendered Jury Instruction #14, given erroneously on this issue by the Court’s Instruction No. 1,
which clearly began by noting if not outright establishing that the Rifle Club and Catholic
Diocese were beneficiaries of Mr. Stegall’s Last Will. Defendants’ correct version was proper.
- To say that the evidence from both cases would be bound up together and all
matters should be tried at once, namely the 21 MR 21 claims about the July 2, 2020 documents
and the affirmative defense and will contest that also address the July 6, 2020 documents, was
an understatement. Furthermore, to the extent that the Court thought discovery should have
occurred throughout 2021 before Mr. Stegall even died in early 2022, no formal will contest
discovery could even have been undertaken until a probate matter was opened. Defendants had
until September 8, 2022 just to file the will contest. Merely because Plaintiffs rushed this matter
forward does not mean the Court should have.
- Defendants were entitled in the probate case to a formal proof of will hearing. If
Plaintiffs were going to be relying, as they seemingly appeared to be, upon the purported July 6,
2020 will, then Defendants should at least have had the right to a formal proof of will hearing to
determine whether the purported July 6, 2020 document was even valid in that preliminary
sense. The Court erred in denying such a hearing to Defendants. It was bound by the cited
Illinois Supreme Court case. The distinction drawn by the Court between a second will and a
codicil was erroneous as a matter of law.
- Once the Motion to Dismiss the will contest was denied, Defendants should have
been deemed entitled to a statutory right to jury trial on both sets of documents together. There
was no reason to have a trial that deals with both July 2, 2020 and July 6, 2020 timeframes,
circumstances, and disputes as a precursor to a second trial on the July 6, 2020 documents.
Plaintiffs seemed to want this Court to pre-judge the 21 MR 21 case as if they automatically win
and preclude Defendants from having standing to contest the July 6, 2020 document. That
approach was contrary to every aspect of fair and orderly jurisprudence. For all of these
reasons, the case should have been continued for a combined jury trial after Defendants were
given the reasonable period of discovery this Court had, on two prior occasions, indicated
would be provided, before all the combined issues would be tried to a jury.
- On October 31, 2022, Penny Williamson filed a motion to remove the bank as
executor. As noted in its December 29, 2022 Answer, the bank moved for an evidentiary
hearing of this motion. The bank noted twelve separate grounds were alleged for its removal
and denied each. Obviously, a substantial evidentiary hearing would be needed to resolve those
claims. Tonny joined in the request that there be an evidentiary hearing on all of these removal
- Tonny urged that this Court could not conduct a jury trial when no one even
knew who would be the proper parties to be trying the case. The bank erroneously suggested
that the jury trial could go forward because if Defendants lose 21 MR 21 on the merits, they
would no longer have any standing to object to F&M Bank being executor.
- There are two reasons why this argument lacked merit. First of all, Tonny and
Penny both have motions pending requesting approval of their claims. These claims had
nothing to do with whether the documents executed on July 2, 2020 or July 6, 2020 are valid.
Defendants maintained a right to seek removal of F&M Bank in any event.
- More importantly, F&M Bank placed the cart before the horse. If the bank
should have been removed as executor, a new executor would had to have been named to
determine the course of its interest in 21 MR 21, as well for that matter in the 22 PR 12 will
contest. This Court could not merely assume that a replacement executor would take the same
position on the issues as the bank and its present chosen counsel had.
- The issue was not merely limited to an executor handling the administration of
an estate in the abstract. Here, there were two actions essentially dealing with two separate sets
of documents, and the F&M Bank also being involved as a plaintiff in 21 MR 21 and having the
duty to defend the purported July 6, 2020 will in 22 PR 12. This issue relates directly to who is
the proper party to be bringing or defending claims herein.
- Since this case was forced to jury trial before resolution of the motion to remove
executor, the Court and parties are at grave risk that if a reviewing Court holds that F&M Bank
should have been removed as executor, that all steps and results in 21 MR 21 after the date the
bank should have been removed are invalid.
- If a Motion to Substitute Judge is denied, and a reviewing Court overturns that
ruling later, all actions taken after the erroneous denial are void. Tonny believes the same rule
would be applicable here.
- F&M Bank was not the proper party to be representing the estate in the
scheduled jury trial. This defect in who is a proper party plaintiff was raised under 735 ILCS
5/2-404. While the remedy would, of course, not be a dismissal (see 735 ILCS 5/2-407), F&M
Bank would be removed and a new executor would, at a minimum, need to be substituted
herein. The bottom line is that the Court has never felt open to the possibility of an egregious
result that would occur if the Court proceeded to jury trial and either on its own, or through
Appellate Court mandate, determined that F&M Bank should not have been representing the
estate in 21 MR 21. The entire proceedings would have to be re-tried at vast and unwarranted
expense to the litigants and contrary to judicial economy.
- In addition to the request to remove F&M Bank as executor, Penny’s motion also
sought to disqualify Attorney Mangieri as counsel. This situation compounded the matter even
further. The Court should, again, have determined not only who the proper parties are for the
21 MR 21 jury trial, but who even should be counsel representing one of the parties.
- Supreme Court Rule 231(a) provides that a party may apply for a continuance
because of the absence of material evidence. The issue is whether diligence has been used to
obtain the evidence or want of time to obtain it and that if further time is given, the evidence can
be produced. After the initial Complaint was filed, Defendants moved to dismiss. Plaintiffs
sought leave to amend and amended their Complaint ultimately filing a Second Amended
Complaint. It became the operative document in this case. Once that Second Amended
Complaint was filed, as allowed by rules, Defendants availed themselves of an attempt to have
it dismissed. Only after the Court ruled, did Tonny timely file her Answer to Second Amended
Complaint on July 15, 2022. Penny also filed hers. Plaintiffs did not reply to Defendants’
affirmative defenses until August 11, 2022. Thus, even though this case was filed in early 2021,
the parties were never fully at issue on the operative pleadings until mid-August, 2022.
- As a practical matter, discovery does not usually begin in earnest until the initial
pleadings (complaint, answer and reply to affirmative defenses) are finalized and all motions
regarding pleadings are resolved. For example, if a pending motion to dismiss is granted, why
would counsel and the parties want to incur the expense of beginning discovery in a case that
might be dismissed? This should have definitely sounded quite familiar. Plaintiffs vociferously
objected to conducting any discovery in connection with the will contest on file while their
motion to dismiss it remained pending – through two cancelled hearings moreover. This Court
agreed and ordered no discovery while the motion to dismiss was pending. Fair treatment of
both sides compels the conclusion that the same rule should have applied to each case.
Defendants should not be blamed for not conducting discovery earlier in 21 MR 21, while
motion practice was ensuing on their various pleadings filed in early 2021 and amended
February 9, 2022; March 17, 2022; and April 11, 2022.
- The Court on May 23, 2022 stated that all discovery depositions should be
completed by July 11, 2022 and discovery would close on that date. The June 24, 2022 hearing
date Order only extended discovery until August 1, 2022, with no further extensions being
granted. The Court then did permit three depositions to be taken out of the dozens of witnesses
disclosed by the parties in their Witness Disclosure lists circulated roughly during the same
timeframe. Those were wrapped by the end of August, as directed by the Court, less than three
weeks from when Defendants’ affirmative defenses were replied to by Plaintiffs.
- As noted in the preceding section, the Court on September 9, 2022 set the 21 MR
21 case for jury trial. Once Defendants filed their will contest petitions, however, they sought to
do discovery of many of the same principally-involved witnesses for both sets of documents.
The executor then moved to dismiss the will contest petitions, and ultimately no discovery was
allowed to be undertaken. Had the parties been allowed to do discovery in the will contest case
over the preceding months, they would have been able to obtain the material evidence they
sought and still have not received through the depositions. Had discovery been permitted in the
will contest, Defendants could have learned of material information and possible grounds for
impeachment of witnesses in the 21 MR 21 case.
- Again, it cannot be overlooked that we have been talking about a four-day (one
business day) period between the two sets of documents. As is obvious beyond question, each
side believed that their set of documents was appropriately generated and executed and that the
other side’s was neither. Defendants could have had their discovery that relates at least to the
will contest had such discovery been permitted. It was completely unfair to allow Plaintiffs to
offer a purported July 6, 2020 will in a trial on the July 2, 2020 documents and have neither a
proof of will hearing in probate case 22 PR 12 nor any discovery in the will contest.
- Notably, Plaintiffs did not propose in trying 21 MR 21 that they would have any
burden of proof whatsoever regarding the purported July 6, 2020 document even though they
are the plaintiffs in that case. Their proposed instruction turned into Court’s Instruction No. 1
jumped right over that issue and informed the jury that Plaintiffs are beneficiaries of the July 6,
2020 “last” will. Their instructions did not even leave open the question of Defendants being
able to challenge that purported July 6, 2020 document at all. To repeat, Plaintiffs should not
have been allowed to hamstring Defendants this way merely because they jumped the gun and
filed 21 MR 21 a year or so before Stegall died.
- The bottom line concerning this whole situation is that Defendants have been
denied their right to discovery to produce material evidence. The issues are all intertwined, as
noted above. The Court set deadlines to close discovery within a very short timeframe of
Defendants even filing their Answers to the operative Second Amended Complaint, which
added one or more theories to the previous pleadings. Then, to compound matters, Defendants
unsuccessfully tried to depose over a dozen individuals in the 22 PR 12 case, which could have
permitted the development of material evidence for the 21 MR 21 case.
- It was also important to note the obvious, that Defendants were defending 21 MR
21 but prosecuting the will contest. They would have every right to call experts (to obtain and
review all pertinent medical records) in the will contest where they would bear the burden of
proof, even if they can be deemed to not have any for 21 MR 21. But if Plaintiffs are really
trying to combine the cases in a way beneficial only to them, with a jury hearing about a July 6,
2020 document in a case involving July 2, 2020 documents, without full discovery and expert
disclosure, this was fundamentally unfair.
- Co-Defendant, Tonny Williamson filed motions to continue and ultimately a
motion to stay the beginning of the jury trial. Tonny adopted and incorporated by reference all
of the motions and arguments made in those written filings. As noted in arguments on the first
trial day, the denial of a continuance to Penny’s motions worked a substantial prejudice upon
Tonny herself as well as her counsel.
- Counsel for Penny filed a Motion for Stay, Tonny joined in the motion from her
own perspectives and those of her own counsel. For reasons stated in the motions and affidavits,
there were reasons why Tonny and Penny themselves might not be able to prepare for and
conduct themselves through testimony and aiding their attorneys for same reasons. Attorney
Ryva upon being engaged in this case had a specific agreement with Tonny that Penny would be
represented and there would be two attorneys on each side of any future trial in the case. The
attorney who was representing Penny at the time withdrew. If Penny’s present counsel felt,
correctly, that there are reasons (1) that Penny will not be able to assist herself through the trial
and (2) may not be able to properly and fully assist counsel thereby creating ethical obligations
for Penny’s attorney, these matters had significantly negative impact upon Tonny as well. Since
Penny’s counsel could not represent Penny efficiently and zealously, this had a major and
complete negative effect on Mr. Ryva’s ability to zealously and properly represent Tonny. As
shown, there were numerous witnesses listed, and with both sides having two lawyers, the
division of work could be easily handled. With one attorney, not so much. Tonny was
therefore prejudiced because she was unable to effectively work with her co-defendant to
defend this case, for reasons stated.
IV. THE PUNITIVE DAMAGES AWARDS SHOULD BE
VACATED OR SUBSTANTIALLY REDUCED
- Turning next to punitive damages, Illinois law approaches those issues, posttrial, from the standpoint of Illinois common law and constitutional precepts. The Court
should never have instructed the jury at all or submitted the case to the jury. Since the fraud
verdict must be overturned for other reasons stated, a punitive award must fail as well.
Defendants reiterate their argument that they were substantially prejudiced in the punitive
damage aspect of the trial by not being able to show some modicum of good faith and reject
the proposition that they were glomming onto Rifle Club property to kick them out, as a
defense to the punitive damage case. See below.
- Illinois common law authority tests jury verdicts of punitive damages by
seeing if they resulted from passion and prejudice. Deal v. Byford, 127 Ill. 2d 192 (1989).
Here, the Court should consider the absolutely ridiculous speed by which the jurors decided
liability and then the punitive damage amounts later. There were numerous exhibits
introduced into evidence and a number of witnesses testified. There is no way other than
through passion and prejudice that this jury could have considered all the evidence and
arguments in the limited time they had the case once they were reinstructed and sent back a
second time on Friday, March 10, 2023.
- As an aside, and as additional argument, the Court allowed the jurors to not
only deliberate in, but remain quartered during the trial, in a room that was obviously not
soundproof. This was a Court error that cannot simply be passed off as “go talk to the
building people.” This is not an abstract proposition. Such is required by Illinois Supreme
Court Minimum Courtroom Standards 11.1. It was obvious, especially during the
deliberations, that the jurors could be heard laughing and carrying about. The idea of
soundproofing is not a one-way street. It is equally reasonable that the jurors could have
heard what was going on in the courtroom during breaks in the testimony.
- On a number of occasions, the Court loudly chastised Tonny and her counsel.
While the Court attempted to eradicate the prejudice associated with those claims both in
front of the jury and through the non-soundproofed jury room, this did not cure the problem.
Defendants raised this as soon as they heard how loud the jury was on Friday afternoon
during deliberations and cannot be blamed for not raising the point earlier. However, there
certainly was no indication that somehow the jury room had been soundproofed and all of a
sudden lost its soundproofing on Friday, March 10, 2023. These issues are extremely
important and can only be rectified by an entirely new, impartial trial.
- The punitive award amounts in and of themselves establish passion and
prejudice warranting action post-trial by this Court. The binding precedent from the Fourth
District is Hazelwood v. Illinois Central Gulf Railroad, 114 Ill.App.3d 703, 713 (1983):
Although an award so small that it would be only an ordinary item of
expense does not serve the purposes of retribution and deterrence, an
award which bankrupts the Defendant is excessive. Punitive damages
should be large enough to provide retribution and deterrence, but should
not be so large that the award destroys the Defendant. Thus, before a
Court can gauge the award, it must first gauge the financial position of
the wrongdoer…Simply stated, the amount of the award should send a
message loud enough to be heard, but not so loud as to deafen the
listener. A deafening award is excessive.
- This precedent overwhelmingly shows that the punitive award must be
vacated or substantially reduced. While the Hazelwood court affirmed a $170,000.00
award in a railroad accident, that amount represented only .0237% of the railroad’s net
worth, which was $716,180,000.00. Here, despite Plaintiffs’ attempts to claim a desire
to be made whole, the amount awarded between the two Defendants is $600,000.00.
In and of itself, this is about twice what the attorneys’ fees claim even was. The rest
clearly is a wind fall.
- However, whether the fees paid were considered, the plain fact is that punitive
damages cannot either bankrupt or destroy the Defendant. The punitive awards against
Defendants far exceed the evidence offered to the jury regarding prospective net worths. The
verdict against Tonny was at least four times what her net worth is. And, from Penny’s
perspective, the point Tonny can make herself regarding the passion and prejudice for both
awards, the $200,000.00 punitive award is likely 100 times what Penny’s net worth is.
- Similarly, due process concerns under the United States and Illinois
Constitutions show that these awards must be completely vacated or substantially reduced.
The jury simply could not have followed the instructions regarding consideration of
Defendants’ net worth. Therefore, under due process considerations, Defendants were
denied due process of law by the outrageous, unsupported verdict amounts when one
considers their actual net worths. In Hazelwood, with the railroad worth $716,000,000.00, a
punitive award of anything over its net worth would obviously have been overturned. Here,
the verdicts are worse as being many multiples of Defendants’ individual net worths.
V. JUROR ISSUES WERE NOT PROPERLY HANDLED
- Tonny respectfully maintains that the Court erred during jury selection voir dire
and failure to reject certain jurors for cause. Tonny and Penny were forced to utilize all of their
peremptory challenges, but there were still jurors that had connections to the Galesburg Rifle
Club or were disclosed as avid hunters who should have been excluded from the jury: Brian
Balser (friends with hunters and gun owners and connected to F&M Bank); Todd Howerter
(Blake family friend/cousins and with him at gatherings and knew Mangieri and Deputy Dare);
Kathy Woodward (connection with Tompkins State Bank and Linda Glisan and would give
benefit of the doubt to such personnel); John Hallan (knows Chaney, Trisha and went to school
and otherwise knew Mangieri; wife was former Recorder of Deeds and knew local lawyers);
Shirley Watters (connection to Rifle Club; retired from OSF and loved St. Mary and good
friends with Dawn Brown); Richard Booth (would give more weight to testimony of police
office; retired from OSF); Melissa Wheeler (worked for Sheriff office; connection with J. Dare
VI. SUBSTANTIALLY PREJUDICIAL HEARSAY WAS INTENTIONALLY
OFFERED AND HEARD AND COULD NOT BE CURED
- During the course of trial, when Haynes was on the witness stand, Plaintiffs’
counsel, knowing full well they were seeking to obtain a startling and prejudicial hearsay
statement from that witness, went ahead and asked the question in front of the jury causing an
objection to it. The response was that Haynes had heard from Defendants’ sister to the effect
that he should stay away from Stegall because Defendants had dibs on him and he was theirs.
Haynes couched the testimony in terms of Defendants’ ill intentions. The Court purported to
attempt to negate the substantial prejudice from the remark by instructing the jury to disregard
it. However, there are many Illinois cases on which Tonny’s relies for the proposition that
curative instructions often simply cannot cure an undue pervasively prejudicial comment.
When counsel clearly asks a question knowing that the answer will produce inadmissible but
substantially prejudicial evidence, the entire trial can be infected causing reversible error.
Authorities upon which Tonny relies for these propositions are Pleasance v. City of Chicago,
396 Ill.App.3d 821, 830 (2009); and Konewko v. Advocate Health & Hospitals Corporation,
2020 IL App (2d) 190684.
VII. THE COURT’S RULING ON OFFERS TO THE RIFLE CLUB WERE WRONG
- The Court erred by substantially prejudicing Defendants in not allowing them to
offer into evidence the fact that they had made a proposal to transfer the Galesburg Rifle Club
the 35 acres. The Court erred first in indicating that there was no relevance because the offer
was never accepted, but that was one of Defendants’ main points. It was unfair to allow the jury
to hear just the Rifle Club claim, basically, that it is not going to get the 35 acres and
presumably could be kicked off their property that had been used for many years. The jury was
left with the impression that Defendants would actually kick the Rifle Club off the property if
they prevailed, which simply was not and never has been true. They should have been allowed
to disprove this notion. Defendants had even offered that a limiting instruction be given.
- Additionally, the offers themselves were relevant to matters that Illinois
Evidence Rule 408 does not bar. The entire idea of offering settlement negotiations is to
prejudice the other party by attempting to introduce their offer to show the jury that their
position at trial to oppose the other side was inconsistent with having made a settlement offer
initially. Here, the evidence of Defendants’ settlement offers was not ever being offered to
show that Defendants had accepted it and some how were arguing a position inconsistent with a
previous offer. Rule 408 permits otherwise barred settlement offers if related to witness bias or
prejudice, assertion of undue delay or the issue of bad faith. See California & Hawaiian v.
Kansas City Terminal, 602 F. Supp. 183 (W.D. Mo. 1985), aff’d 788 F.2d 1331. Here, the
evidence offered did relate to at least one or more of these issues.
- The settlement offers were independently relevant in a number of ways. First, on
the mutual mistake and fraud claims, one of which lead to the punitive damage finding and
award, Defendants’ position was that there was no mistake or misstatement on Mr. Stegall’s
part or related to him because any false statement or mistake that he could not ever get the Rifle
Club the 35 acres was not true or material. Tonny testified that she never intended to sell the
Rifle Club property or kick the Club out. But, she should have been entitled to actually explain
that Defendants went further and actually offered the property to the Club. The jury was instead
left with the impression that a for sale sign and eviction notice were on the way to the Club had
the jury ruled for the defense.
- Moreover, the evidence certainly concerning the settlement offers should have
been heard in the punitive damages portion of the trial. Even though the jury had ruled
Defendants’ conduct was intentional and fraudulent, there were additional issues of
reprehensibility of conduct, potential good faith, and absence of malice to discuss damages.
Defendants should have been allowed to tell the jury that they had offered the property to the
Rifle Club in an attempt to minimize the obvious passion and prejudice that the jury otherwise
showed in rejecting Defendants’ intentions and version of events.
VIII. THE JURY WAS OTHERWISE IMPROPERLY INSTRUCTED
- The Court also erred in instructing the jury. No instructions should have been
given at all on any issue on which directed verdict was proper. Specifically erroneous were the
Court’s instructions denying Defendants’ right to have the jury instructed about the materiality
of the alleged mistake and it needed to be a mistake of fact not law (see Defendants’
Instructions 10 series), allowing the jury to be instructed on the mental capacity claim by
overlapping it in a way that if mistake was established that a mental capacity claim would be
equally proven (Plaintiffs’ Instruction No. 18), refusing Defendants’ Instruction on guardianship
and that on punitive damages all individuals are entitled to present their claims and defenses in a
court of law pursuant to the First Amendment of the United States Constitution (Defendants’
Instruction No. 24). A jury must be instructed if any evidence is presented on a point, whether
or not the jury would have been persuaded. Leonardi v. Loyola University, 168 Ill.2d 83 (1995).
- There clearly was evidence regarding both the materiality and “fact” issue under
the mistake claimed. Defendants had cited case law defining materiality and including as “fact”
an element of such claim. Mistakes of law are not actionable. Giving a better instruction on
fraud did not cure this omission.
- On the mental capacity claim, the case law test regarding the three elements is all
that should have been given. The Court essentially allowed Plaintiffs a second bite at the apple
by allowing them to use their mistake claim to also establish one for lack of mental capacity.
This error was especially egregious when combined with the fact that Attorney Mangieri, in
closing argument, conceded the mental capacity claim had not been proved. Defense counsel
spent virtually no time arguing against that claim because of the concession, and no response
could be made in a defense sur-rebuttal closing argument, when Attorney Mangieri backtracked
in rebuttal and then urged that the mental capacity claim had been proven.
- The Court erred in not giving Defendants’ Instruction No. 20. It would have told
the jury to not consider the guardianship case issues from 2021 to determine the validity of the
July 2, 2020 documents. The jury was left with the ability to do just that. The Court also erred
in not telling the jury it could only consider the July 6, 2020 document for a limited purpose
discussed herein elsewhere. (Defendants’ Instruction No. 19).
- The Court also erred in failing to instruct the jury that a Defendant has a right to
defend claims in a non-frivolous way under the First Amendment. While the Court gave the
instruction that Defendants were entitled to a right to trial by jury, it said nothing about the
much more important and substantive right to argue against Plaintiffs’ case at all. The
instruction was based directly on an Illinois Supreme Court case and should have been given.
Plaintiffs argued at length that the main issue for punitive damages was that very point, that
Defendants had forced them to litigate at great expense of attorney’s fees. The jury was left
without the clear impression that Defendants had every right to try this case. The Court had
never declared their defense frivolous, obviously allowing the case to go to the jury for its
determination. If the Court really thought Defendants’ claims were frivolous, it would have
granted its motion for judgment at the close of all the evidence. It did not do so.
IX. ALLOWING AMENDMENT AFTER CLOSING OF PLAINTIFFS’ CASE AND
INSTRUCTION ISSUES WERE ERRONEOUS
- Especially egregious conduct by Plaintiffs’ counsel, accepted by the Court, was
how the fraud case claims and instructions were addressed and handled. The Court should
not have allowed what occurred to Defendants’ substantial prejudice as follows: The original
Complaint and two amendments had limited Plaintiffs’ fraud claim to either Steve Holland or
Defendants making a material misstatement of fact regarding whether Stegall could amend
the trust to provide the 35 acres directly to the Rifle Club. Defendants felt they had an iron
clad defense to the fraud claim as pleaded, which of course was the sole basis for the punitive
award by the jury. They knew they had made no statements to Stegall at all regarding that
issue. They also knew Holland would say that they made no such statements. There was no
allegation that somehow whatever Holland told Stegall could be attributed to Defendants.
Thus, Defendants determined that since Plaintiffs had numerous opportunities to amend,
knew what their case was all along, urged vehemently that discovery should not be extended
at a time when their Second Amended Complaint was limited to one type of alleged material
misrepresentation concerning trust amenability, and demanded a jury trial even when there
were strong assertions that Penny could not appear due to physical limitations, there would
be no games played and amendments to expand theories where there had been no opportunity
previously to do discovery and otherwise prepare a full defense.
- Plaintiffs having heard the defense Motion for Directed Verdict at the close of
their case knew that their fraud claim as previously limited in their pleadings would flop. In
arguing against the directed verdict motion on fraud, they did not remotely suggest that they had
proven it. Instead, they sought to wholly expand their theory to include substantially different
and other allegations claiming fraud. The Court erred in allowing the Second Amended
Complaint to be amended to address such completely different and expanded theories.
- Defense counsel urged that even amendments to conform pleadings to proof
must be tested by factors governing amendments, such as knowledge by the intended amender
of its claim earlier, previous opportunities to amend, and prejudice and surprise to the opposing
party. The Court said no as if there were simply no factors to be considered and effectively that
a motion to conform pleadings to proof is automatically granted. This was erroneous.
- Here, the motion to amend itself stated that its basis was found in the
documents which had already been admitted into evidence. There was no way Plaintiffs
could not have known about this. They had an opportunity to plead any such theory
previously. Instead, they were able to receive the benefit of Defendants not being able to do
discovery on an expanded fraud theory. The Court misfocused on what Defendants knew.
- As noted in Friested v. CTA, 129 Ill. App. 2d 153 (1970), the key is whether
the amendment would alter the nature and quality of the proof required to defend the action.
This is basically undebatable. Plaintiffs had limited their fraud and thus punitive damage
case to one time period and one alleged misrepresentation. It was after Defendants were
denied discovery and presented their defense that this amendment arose. Defendants were
entitled to defend a fraud and punitive damage case that was so limited in nature, believing
that they, as stated, had an iron clad defense. Defendants do not even recall one attempt to
show in the evidence, or argue in the closing arguments, that Defendants ever made any
misstatement or any statement about amenability of the trust provisions. This was Holland’s
deal. But Plaintiffs did not sue him and should not have been able to obtain a fraud verdict
and punitive damages based upon what Holland may or may have not said.
- The Court then approved a Court instruction presented, edited, and approved
by Plaintiffs’ counsel. But the Court instructed the jury based upon the single
misrepresentation from the Second Amended Complaint. It was up to Plaintiff to make sure
a proper instruction was being given. When defense counsel saw how the Court was going to
instruct the jury, on a significantly limited fraud and thus punitive damage claim, argument
was presented based upon what the jury was to decide. Then, after defense closing
arguments, when there would be no opportunity for further argument, the Court allowed
Plaintiffs to substitute a new instruction and drag the jury back to have it read to them. But
Defendants were denied any opportunity for a second closing argument on the then-newly
expanded fraud theory. This was erroneous and substantially prejudicial to Defendants.
X. THE COURT ERRED IN ADMITTING CASSIDY EX. 2
- Tonny’s counsel asked Cassidy questions in his evidence deposition to develop
grounds for disallowing Stegall’s discovery deposition from being read. This was because there
was no Court Order as to a specific date of which Defendants were aware. When that went
nowhere, the issue of Defendants’ non-participation in it became moot. There was no relevance
to Cassidy’s Memo about Penny’s statements regarding whether Mr. Stegall’s deposition would
go forward. They did not make the July 2, 2020 documents any more or less valid or invalid.
All objections on substance are reserved for trial. Supreme Court Rule 211(c)(1). Merely
because the questions were presented by Tonny’s counsel does not make them nonobjectionable, if irrelevant, at trial.
XI. ATTEMPTS TO IMPEACH OR CONTRADICT THE JULY 2, 2020
DOCUMENTS SHOULD NOT HAVE BEEN ADDRESSED
- Because of the formal requirements for a will, that it be in writing, signed by
the testator and attested in the presence of two or more credible witnesses, mere declarations
of a testator may not be admitted for the purposes of impeaching or contradicting his will.
See Cheney v. Goldy, 225 Ill. 394 (1907) (evidence of one’s estate planning intentions are
only relevant if consistent with the attached document but not so if they are contrary to its
terms). No evidence of what Mr. Stegall told others about what he may have wanted to do
after July 2, 2020 should have been admitted and the Court never addressed that issue.
XII. THE PURPORTED JULY 6, 2020 WILL ITSELF WAS INADMISSIBLE, AND
THE COURT NEVER CURED THE ERRONEOUS RULING
- The purported July 6, 2020 (Plaintiff’s Exhibit No. 16) was never a subject to
the statutory requirements for formal proof of will. Yet, that document should have been
deemed inadmissible and not even mentioned before the jury at all. The July 6, 2020
document was admitted. This prejudiced Defendants by placing no burden of proof for its
authenticity or effect. The jury was shown a document that says it revoked the prior will.
Essentially, the verdict was preordained by just admitting it.
- Plaintiffs seemed to think the only way they could prove July 2, 2020 was no
good was by putting in a subsequent will never tested in a formal proof of will hearing. This
could have been done by testimony that Stegall came in and wanted to make a change that soon.
But Plaintiffs should not have been allowed to put in the document itself executed after the fact
to attack a previous document. It was unfairly prejudicial to put such document in at all.
Plaintiffs put in a will that had never been attacked in a proof of will hearing, argued a binding
effect from it and yet denied a right to challenge the document in any way, saying that comes
- Defendants offered an instruction to have the Court at least tell the jury that
they could only consider Exhibit No. 16 as going to Stegall’s intent on July 2, 2020.
Defendants’ instruction was drawn directly from Plaintiffs’ response to the defense motion in
limine. They there had agreed the document was admissible for a limited purpose at that
time. The Court erroneously refused, letting the jury consider the document for all purposes.
XIII. ORDER ADMITTING WILL TO PROBATE ISSUE
- At a minimum, the jury should not have heard that the Court had blessed the
July 6, 2020 document to any extent. But the Court’s instruction did this from a practical
standpoint. Illinois law precludes admission into evidence of the order admitting a will to
probate. In re Ketter’s Estate, 63 Ill.App.3d 796 (1978) (it has no force and effect). The
concept is to not allow the jury to give weight in favor of a contested will on grounds the
Court approved it in one sense earlier. Here, the Court effectively did the same thing in
reverse, allowing the jury to hear about a will to be attacked in a separate case later.
XIV. STEGALL’S DEPOSITION SHOULD NOT HAVE BEEN READ
- Stegall was not a competent witness. Any reasonable reading of the deposition
text, where Stegall did not know where he was, who he was with, who was who, the property
involved etc., even thinking he was being asked to re-enlist in the armed services, militates
against a finding of competency. As gatekeeper on witness competency, the Court erred in
permitting this “evidence.”
XV. THE COURT ERRED IN OVERRULING
THE OBJECTIONS TO BRITTANY MILLER TESTIMONY
- The Court had reserved rulings on the attorney-client privilege issues to
determine whether Penny was in an agency relationship with Stegall. Once at trial, the Court
allowed the testimony without having the separate hearing earlier contemplated. Plaintiffs very
argument was that there was such a relationship for the underlying case itself. This would and
should have forbidden the Miller testimony under the agency exception to the third-person
XVI. ATTORNEY MANGIERI’S CHANGE OF POSITION IN CLOSING
ARGUMENTS WAS PREJUDICIAL AND INDICATIVE ITSELF OF PASSOIN
- Counsel for the estate in closing conceded the mental capacity claim was not
proven. After defense closings basically jumped past that count to concentrate on others,
Mangieri retreated and said the claim was good. This was after Defendants had closed without
detailed comment on mental capacity. The Court ruled there would be no sur-rebuttal closings.
Plus, the jury passionately and prejudicially ruled for Plaintiffs on this claim. The combination
of error must be rectified with a new trial.
XVII. OFFERS OF PROOF WERE IMPROPERLY REJECTED
- Defendants wanted to show through Holland that if an original will goes missing
there is a presumption that it has been revoked. This related to whether once the purported July
6, 2020 went missing it had been revoked and also showed how incredible Blake’s testimony
was about not making a true, full copy, as it would not be usable to show what the revoked will
even was. Holland also was asked about Stegall telling him Haynes had threatened him, and the
Court rebuffed this important evidence. Massey was asked about decanting, which questioning
was refused. These improper rulings substantially prejudiced Defendants.
XVIII. OTHER ISSUES WARRANTING A NEW TRIAL
- Each of the issues Tonny raises are themselves reversible on appeal and should
provide a basis for a new trial. But even more importantly, it is the concept of the veritable
combination of them or many of them that simply shows Defendants were denied a fair trial.
- As the Court is aware, each Defendant is entitled to file her own post-trial
motion. Penny will have 30 days from the date of judgment. Tonny would like to reserve
the ability to amend her post-trial motion to include any points Penny raises that are not
contained in the present post-trial motion.
- For sake of completeness at this time, however, Tonny notes a number of
matters where Defendants were irreparably prejudiced. One, the Court in front of the jury
told its members, actually yelling, that Defendants and their counsel were being rude by
having them wait for witnesses when one of them had taken ill at no fault to them or counsel.
The Court also interrupted questioning of Tonny to lash out telling her to answer yes or no to
questions that were either confusing or did not restrict answers to yes or no. The Court took
sides on these two issues at least. The Court showed its prejudice and bias too when it said
one more time and all of Tonny’s testimony would be stricken. This stressed Tonny out
immensely putting her at grave risk that the Court was primed for disallowing her entire
testimony. This was unfair and not cured by global assertions later that the Court had yelled
at everybody and do not consider that to be evidence. Effectively, the Court had become an
advocate for one side.
- For direct application of these rules in a similar situation, the Court is directed
to Pavilion v. Kaferly, 204 Ill. App. 3d 235 (1990) (improper conduct by trial judge,
objecting, interrupting, criticizing, and threatening to stop the questioning, warranted
reversal and new trial because of the special recognized fact that jurors may give court
comments deference or even controlling weight such that cautionary instructions “do not cure
a comment of a sort most likely to remain firmly lodged in the memory of the jury and to
excite prejudice which would preclude a fair and dispassionate consideration of the
- Defendants offered a number of pictures to show there was still an excellent
relationship between Stegall and them in 2021. The Court with these and a lot of other
evidence ruled such inadmissible as not related to the validity of the July 2, 2020 documents.
Actually, they were relevant to shop that Stegall was friendly with them and content with the
documents and on the question of affirmative defenses 1 and 3.
WHEREFORE, Defendant, TONNY J. WILLIAMSON prays for judgment
notwithstanding the verdict or, in the alternative, for a new trial based on the manifest weight of
the evidence standard and for the numerous trial and pre-trial errors noted herein.
ORAL ARGUMENT OF THIS MOTION IS REQUESTED.
TONNY J. WILLIAMSON, Defendant
Jeffrey A. Ryva
Jeffrey A. Ryva, ARDC# 3128318
Email address for service of pleadings: firstname.lastname@example.org
Email address for correspondence: email@example.com
227 NE Jefferson Avenue
Peoria, IL 61602
T: (309) 674-1133
F: (309) 674-6503
PROOF OF SERVICE
The undersigned certifies that on March 21, 2023, all counsel of record were served with
a copy of the foregoing document via hand delivery in court in accordance with Supreme Court
Attorney Paul L. Mangieri
Barash & Everett, LLC
John W. Robertson
Statham & Long, LLC
Honorable Curtis Lane
c/o Knox County Courthouse
Theresa L. Sosalla
Sosalla Law, LLC
rd Avenue, Suite 404
Rock Island, IL 61201
4886-8277-9735, v. 1