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She’s 90 and wants to live at home. A guardian put her house up for sale. What’s next?
DOUGLAS HANKS
Updated May 22, 2023 at 9:33 AM
Ela Avila outside the Little Havana house where she has lived for nearly 40 years.
Ela Avila, a 90-year-old retired uniform maker on food stamps, is in the second year of her fight against a court-appointed guardian who controls Avila’s money, housing decisions and medical care.
It’s a battle over small decisions — like when Avila says she can’t get enough cash to visit a hair stylist. And big ones — like when the guardian, Zaidis Alvarez, listed Avila’s Little Havana home for sale last year against her wishes.
“I don’t want her,” Avila said in Spanish during a recent interview with the Miami Herald in her home of 35 years. “I get sick every time she comes here.”
While Avila doesn’t want a guardian, she may end up paying for one. In March, Alvarez asked for court permission to use the divorced grandmother’s assets to pay a $21,000 legal bill from Alex Cuello, a lawyer charging $525 an hour to work for Alvarez in the guardianship case.
Probate lawyers and advocates for elders’ rights say Avila’s case is an example of the high-stakes consequences that can be lurking for an elderly person facing allegations of losing cognitive abilities even while they’re living at home,attending to everyday tasks and remaining well aware of their circumstances.
“One of the things I preach is guardianship avoidance,” said Collett Small, an elder-law attorney in the Pembroke Pines office of the Slater and Small law firm. “It can be a very scary process. Imagine someone knocks on your door and says, ‘I am here to evaluate you.’”
The case started in 2021 when Avila’s daughter, Rosa Hernandez, asked a court to name her guardian of her mother’s assets. A judge briefly approved that arrangement, then shifted to the appointment of an independent, professional guardian in 2022 after Avila’s son, Rogelio Hernandez, objected to his sister filling the role.
Alvarez is registered with the state Elder Affairs Department to serve as a court-appointed guardian for people deemed mentally incapacitated and unable to make decisions on their own. To become guardians, applicants must pass criminal history and credit checks and a state exam after completing a 40-hour course.
Alvarez and Cuello have not responded to requests for comment.
Under guardianship, Avila, a Cuban immigrant, has lost her right to vote, travel, accept medical treatment, make decisions on where she lives or sign contracts, according to an April 7, 2022 court order obtained by the Miami Herald.
The judge in the Miami-Dade Circuit Court case, Bertila Soto, appointed Alvarez on March 8, 2022, and instructed her to take charge of Avila’s money. Alvarez must submit budgets to Soto and get court approval for any big changes in Avila’s affairs.
Once fighting each other in court, both of Avila’s children now are united in asking Soto to restore their mother’s independence. Last month, they filed a joint motion asking Soto to end a guardianship they say is sapping the family’s cash.
“My mom used to have a lawyer. When the turmoil started getting bad, he wanted more money. We couldn’t pay him,” Rosa Hernandez said. “My brother and I are trying to do our best.”
A court fight for independence
While lacking a lawyer of her own, Avila is being asked to pay for the one behind the guardianship that has her an involuntary “ward” in the Miami-Dade case. On March 13, Alvarez filed a notice with the court saying she approved Cuello’s $21,054 legal bill for services he provided for the prior 12 months. The bill is to be paid “from the Ward’s assets,” according to the form, if a judge agrees to the fees.
The court records don’t show an order related to the fees, suggesting they remain unpaid. The Cuello bill shows a string of tasks the lawyer preformed for Alvarez, including attending hearings, reviewing court filings and communicating with lenders on a possible reverse mortgage.
Florida law requires three professionals, including at least one doctor, examine a person for mental capacity before a judge can declare them incapacitated and needing a guardian’s authority. Florida law dictates many guardianship documents remain off-limits to the public. Court clerks haven’t publicly released most filings in the Avila case, including the basis for her guardianship and medical reports. Avila and her family say they don’t have those reports.
Though Avila is described as an “incapacitated person” in court papers, at least two medical professionals weighed in positively on her mental state.
In December, a nurse practitioner filled out a court form saying Avila had the “full capacity to live independently.”
Last year, a nurse working in the elder-abuse unit for Miami-Dade prosecutors went to Avila’s house after she and her son called asking for help, according to a summary provided by theState Attorney’s Office. The nurse, Carmen Duran, “did a quick assessment on Ms. Avila requesting her to answer basic orientation questions. Ms. Avila responded to all questions correctly and clearly,” according to the summary of the May 17, 2022, meeting.
Alvarez and Cuello also attended the meeting. Duran said she asked about Avila’s mental examinations and “was informed that Ms. Avila had not been diagnosed with dementia or Alzheimer’s.”
In a prior conversation with Avila, Duran said it was clear Avila felt the court was ignoring her ability to live independently and that Avila wanted nothing to do with an assisted living facility or any other option forcing her to move.
“Ms. Avila also expressed frustration that she maintained a standard of self-care and grooming and yet was being denied her own money to maintain her hairdresser appointments and social schedule,” the summary said.
Rosa Hernandez said her mother initially agreed to have her become guardian as a way to stabilize a rocky financial situation amid trouble with tenants who were then living in the flat attached to Avila’s house and paying enough rent to cover the mortgage. The $1,500 rent payments stopped altogether in the summer of 2021, according to court records from an eviction proceeding, leading to a financial slide that now has Avila facing foreclosurebecause she’s behind on mortgage payments.
Avila signed documents saying she wants to put a reverse mortgage on the house, a financial arrangement that can let an older person remain in their home indefinitely but often leaves no equity for heirs as unpaid interest compounds and eats away at the value of the house. Rogelio Hernandez said he’s been pushing Alvarez to help secure a reverse mortgage, but the guardian won’t cooperate.
“Look at her. She’s fine. She’s well,” Rogelio said in an interview at the kitchen table. He lives in the house with his mother and a caretaker he sayshe pays $400 a week after Alvarez raised concerns about Avila being left alone while he works overnight shifts as a forklift operator at Miami International Airport. “I don’t want her to live in a home.”
Tidy bedroom, Cuban coffee in kitchen
Born in Cuba, Avila came to the United States in the 1960s, married, had two children and worked for a Miami uniform maker that clothed local police officers and firefighters.
In a tour of her home as Spanish-language morning news played in the background, Avila brought out a wind chime with a porcelain officer, gun and police dog she said was given to her as a retirement gift. When a charcoal portrait of a woman in pearls and a blouse caught a visitor’s attention, Avila explained a cousin drew that of her mother.
Then she walked into her bedroom, pointing out another portrait by the cousin: a framed rendering of Jesus hanging over the tidy bed that Avila said she makes each morning.
“And I wash the dishes,” she said.
She still has two sewing machines in her kitchen, where she offers to make Cuban coffee for visitors on a recent weekday. “Amargo o dulce?” she asked in Spanish as she set up the pot on the electric stove’s burner.
Guardianship laws are designed to give court protection and supervision to people who lose the mental capacity to make decisions for themselves.
Probate lawyers call it a legal last resort and often the result of a person waiting too long to make arrangements for how they want their affairs managed if they lose mental capacity during a medical crisis or due to old age.
see below, so don’t be surprised when you go to the clerk’s offices if you are an immigrant you might be given the run around for hours.
if that happens, you might want to use this letter because the clerks in cook county are not supposed to be doing this
Just so you know, the letter did work but it took about 10 days to get the documents by email, which they did not answer for days at a time. oh well
JUSTICE 4 EVERY1, NFP
5534 N. Milwaukee Ave JoAnne Denison, Executive Director Chicago, IL 60630 Cell Phone 773-255-7608 ph 312-553-1300 http://www.justice4every1.com fax 773-423-4455 JoAnne@Justice4Every1.com A social Justice Services NFP
Iris Martinez Cook County Clerk of Court 50 W. Washington St. Chicago, IL 60602 United States
Phone: (312) 603-5030
via Email: courtclerk@cookcountycourt.com, complaint about your services
Dear Ms. Martinez;
Last week two Turkish gentlemen came to your offices to get certified copies of any arrest records they may have, or a letter stating that none could be found.
While they do not speak English well, they were sent with a letter and the clerk turned them away.
Today I went to Skokie myself, and the same thing happened. The clerk refused to look up their records and provide a letter for them. But this time she told me to take them to the Chicago Police Department at 35th and Michigan to do the same thing–do a records search and a letter. However, this is 20 miles away or 40 miles round trip for them.
In the past, I have always been able to get certified disposition records for my clients or letters. I do not understand how this has suddenly changed or if there is any policy on whom to turn away.
I would appreciate it if this was in error you instruct your clerks accordingly and please email me letters for these two gentlemen because they do not speak English
I see no reason to drive an extra 40 miles to get these letters.
Thank you
/s/JoanneDenison/ Joanne Denison, Executive Director, Justice 4 Every1, NFP cc: Chicago FBI, marygsykes.com blog and justice4every1.com blog, Facebook, Twitter, etc. and Timothy Evans, Presiding Judge
Typically in probate, if the attorneys can get away with excessive billing they do.
The record on appeal is published in the last post so you can see for yourself.
F&M was appointed Guardian of the Estate. But were they billing the Estate as a normal Guardian would at $20 or $25 per hour. Heck no, that would be far too honest for them.
Instead look at the below image. They billed these Estate as “guardian” for 20 hours at $250 per hour in attorneys fees!
While most banks just bill their “trust” fee which is typically just a small percentage per year, this bank goes for attorneys fees at $250 per hour for a “Tom McIntire” and “Lori Hedden”.
If they wanted to bill attorneys fees, they had to file an appearance with the Estate as attorneys for the Guardian of the Estate and put in a fee petition. But neither attorney ever did that. Instead they ask for $250 per hour under the guise of Guardian of the Estate and not the attorney filing the appearance for the estate.
The Illinois states attorneys for Knox County should be investigating these two individuals for their excessive billing, but they are too busy pretending to the be attorneys for the guardian with an appearance on file and not acting as the guardian for $30 per hour or a small estate percentage.
Fred Stegall was a 90 year old former veteran, and and Tonny and Penny knew him as a dear family friend for years and years since they were young girls. Over the years they kept in touch.
Until one day when some persons in town drug him to a lawyer and insisted he leave all his property to the Catholic Church and Galesburg Rifle Club. While the reasons for this are unknown, often charities are used to hide the theft of smaller amount of money that can be taken more easily and surreptitiously.
In this case, Fred had acres of timberland on his farm that could easily and secretly be logged for hundreds of thousands of dollars and no one would know and the lumber would just be gone one day. But that’s not what Fred wanted with his land. He loved his wooded areas and felt they should be preserved for the environment.
In addition, the Galesburg Rifle Club had been squatting on his land for years and years and never paid Fred one dime of rent, although the Club made thousands of dollars for holding hunting events and setting up for hunters. At one time they put Fred on the Board of Directors so he was part of what was going on, but in the last few years, they removed him and he was very angry about that.
In January 2022 a probate proceeding was opened up because Tonny and Penny were worried about their friend Fred. They had been threatened that someone got Fred a protective order and so they could not longer go near him; but when they went to see him in January 2021, not only did they find out that was false, but Fred was living in a severe state of self neglect with no good food to eat, everything was filthy and rotted and he was dirty and had not bathed in weeks. Immediately Penny and Tonny bought Fred the good food, got him fed, washed and cleaned the home and did so up until his death in January of 2022.
Over that year, they spent $115,000 on caring for Fred and they filed for reimbursement with the Probate Court. During 2021 the probate court and Fred’s “guardian of the estate” F&M Bank did not get him a dime of his own $500k cash estate to life off of. The Williamsons spent their own funds on Fred to make sure he had his necessities–food, clothing, supplies and utilities.
Now, Tonny and Penny have been charged with “Elder Financial Abuse”–despite the fact for over a year they were the only ones doing the cooking, cleaning, grocery shopping and laundry and paying for everything–on their own accord!
Who does this? Who are these evil prosecutors? I am told it is Jeremy Karlin and Ashley Worby. Call them and tell them what you think.
And now here is the proof we have all been waiting for–you can see from the Record on Appeal in the 22 PR 12 Estate case that the charges are false and the Williamson Sisters have done nothing wrong. They cared for Fred when no one else did. And for their loving and kind care, they suffered a false $600,000 punitive damages judgement in 21 MR 21–a case cocked up and manipulated by Paul Mangieri and John Robertson and with alleged “oversight” by judge Curtis L Lane. All 3 of the cases involving Fred Stegall and the Williamson Sisters were a sham by Knox County–21 MR 21, the guardianship 21 PR 10 and the Decedent’s Estate 22 PR 12.
I will fax the states attorneys and invite them to leave any comments for this sordid situation and if they reply they will be promptly published in the comments section.
But as far as I am concerned, it’s time to remove Judge Curtis L Lane and get rid of prosecutors Jeremy Karlin and Ashley Worby. Instead of arresting Penny and Tonny Williamson, they should be investigating and arresting all of Paul Mangieri, John Robertson and Judge Curtis L Lane for their outrageous disgusting behavior toward teh Williamson Sisters.
We know that Mangeri, without any court authorization took $346,000 out of the estate and other attorneys were paid from the estate without a court order.
Both the Decedent’s Estate case 22 PR 12 (Decedent’s estate $346k missing without court order courtesy of Paul Mangieri) and the 21 MR 21 case (false judgment of $600k) are up on appeal.
Please pray for the Williamson sisters, that justice be done for them, finally!
The states attorneys need to investigate all of Judge Curtis L Lane, Jeremy Karlin and Ashley Worby, Paul Mangieri, John Robertson and Jacque Dare and John Hessler. Those are the real elder abusers in all of this.
This post will be about some issues when you appear pro se and how to avoid those issues.
If you are sick, you still have to appear on your court date. Court will still continue and this is always a great time to DWP (dismiss for want of prosecution) your case, or even worse, enter some horrible order against you. Under Supreme Court Rule 45 you can appear by phone and on zoom. Let the court know as soon as possible.
Always have a court reporter if you can possibly afford one and get your transcripts promptly. Sorry to say, I am still hearing complaints that transcripts come back materially altered in Illinois and these complaints are recent, not a part of the past. As what happened at my ARDC trial, the court reporter promised she would not change the transcripts but she did just that and the ARDC still has not reinstated me nor apologized for there perfidy.
If you file something in court, you have to have a Motion and Notice of Motion. Generally the court will set a briefing schedule. Replies are not required and not even encouraged unless you have something truly new to say about the cases, facts or the law. Otherwise, avoid them. Your Motion will explain exactly what you want and why you want it. It is best to cite the law and at least one case, but several cases would be better.
If you do not have transcripts, your chances of winning on appeal are slim to none. Always get a court reporter. Write the Chief Judge and tell him you want the right to record and use Google Translate Speech to Text because you are indigent and cannot afford a court reporter
Always appear in court if humanely possible and take notes, even if you have an attorney. If the attorney tells you you don’t have to appear or you should not appear, get a new attorney. Almost never should the attorney say that and they better have a very good reason (outstanding warrant or possible jail) but 99% of the time you should be coming to supervise your attorney to make sure they are doing their job.
Sometimes your judge might not be present due to illness, an emergency or training. It is okay for a substitute judge to appear and issue valid orders. Your regular judge may still be involved by phone or otherwise on that day and that is okay. Judges can work together, in general.
If you are not there and the judge issues an order you do not like or you think it is wrong, you have 30 days to vacate it for “good cause.” After that it is very difficult to vacate the order, even though the statute says up to 2 years. You would have to show diligence, new case law or evidence that could not possibly be obtained before that date, and when they say that standard, think of the word “impossible”. Probably 98% of motions to vacate filed after 30 days are denied. Judges do not like to do that. There are very few cases.
Try your best to get an attorney to help you. Check out all the law clinics at every law school and look around for lists of legal clinics and pro bono legal services for the indigent.
Even if you think your order is void or voidable, never delay in seeking to vacate it. The sooner you file a motion to vacate the better your chances of success in vacating it. Judges hate to vacate any order older than 30 days and they will come up with any excuse not to do that for you.
Those who had loved ones in a Lincolnshire nursing home when it was left unstaffed are angry and have unanswered questions.
LINCOLNSHIRE, Ill. (WLS) — Anger abounds and questions remain unanswered after people reported no medical staff were on duty Monday at a Lincolnshire nursing home.
A family member of a relative inside the former Warren Barr nursing home said it was like walking into a disaster zone on Monday when he said there were no medical staff on-site to care for patients.
As the state health department investigates any possible wrong-doing, families said they just want transparency from the new owners about what’s going to happen to their loved ones.
“It’s indescribable and inconceivable that there was nobody here,” said David Blair, whose mother moved from the nursing home. “I raced in here, and walked into what was an apocalyptic scene of people. I mean, it was eerie. There was nobody inside the building.”
“Where does that leave my dad? Should he stay, should he go?” said Sean Hobbs, whose father is still in the nursing home.
After the Wealshire Center of Excellence took control of the nursing home on Monday, family members of those inside said their loved ones went without medical care for hours.
Now, frustrated relatives like Hobbs, want to know if his 78-year-old father with dementia is going to get the around-the-clock care he needs.
“I hope these questions get answered sometime soon,” he said.
Illinois Health Department officials released a statement, which reads in part, “We are in ongoing discussions with the new owner, who is in control of the facility, to ensure they have a plan in place for the safe operation of the home.”
Wealshire President Arnie Goldberg did not respond to a request for comment.
In a letter to residents, Goldberg said he plans to turn the facility into a kidney and cardiac rehabilitation center, adding further confusion for families.
“We need transparency about what is going to happen next,” Hobbs said.
David Blair moved his 93-year-old mother from the nursing home to a different facility after the chaos, and is demanding clarity from the new owners.
“You have a responsibility, licensed by the state, to provide care, and you didn’t do it,” Blair said. “I feel a lot better that at least I know she is being cared for and nothing like that would ever happen in another facility. It’s unconscionable.”
The Lincolnshire Police Department said it’s working with the Lake County State’s Attorney to determine if charges will be filed.
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:
And here is yet another Post Trial motion which explains as follows:
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT OF ILLINOIS KNOX COUNTY FREDERICK J. STEGALL, GALESBURG ) RIFLE CLUB, an Illinois not-for-profit ) Corporation, and THE CATHOLIC DIOCESE ) OF PEORIA, an Illinois Religious corporation, ) ) Plaintiffs, ) ) vs. ) Case No. 21-MR-21 ) TONNY J. WILLIAMSON and ) PENNY J. WILLIAMSON, ) ) Defendants. ) ) 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). Fraud Claim
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 this statement. Mistake Claim
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, was material. 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. 6 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. Undue Influence
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 7 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) 8
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 9 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 10 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. 11
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 12 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, 13 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 MOTIONS
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 Complaint.
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 14 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 15 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, 16 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 17 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 issues.
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. 18
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 19 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 20 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 21 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 22 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. 23 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 24 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. 25 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); 26 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 and Mangieri). 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. 27 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 28 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’ 29 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 30 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 31 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 32 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. 33 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 34 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 later.
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.” 35 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 waiver rule. XVI. ATTORNEY MANGIERI’S CHANGE OF POSITION IN CLOSING ARGUMENTS WAS PREJUDICIAL AND INDICATIVE ITSELF OF PASSOIN AND PREJUDICED
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. 36 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 37 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 evidence.”)
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 By: Jeffrey A. Ryva Jeffrey A. Ryva, ARDC# 3128318 Email address for service of pleadings: ryvapleadings@quinnjohnston.com Email address for correspondence: jryva@quinnjohnston.com QUINN JOHNSTON 227 NE Jefferson Avenue Peoria, IL 61602 T: (309) 674-1133 F: (309) 674-6503 38 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 Rule 11. Attorney Paul L. Mangieri Barash & Everett, LLC paul@barashlaw.com patti@barashlaw.com John W. Robertson Statham & Long, LLC jwr@galesburglaw.com jennifer.steck@galesburglaw.com Honorable Curtis Lane c/o Knox County Courthouse clane@9thjudicial.org Theresa L. Sosalla Sosalla Law, LLC 1800 3 rd Avenue, Suite 404 Rock Island, IL 61201 attorney@ravenclawyer.com paralegal@ravenclawyer.com 4886-8277-9735, v. 1
So yesterday we learned from former attorney and judge Harry Bulkeley that the times have changed and now you can wear hats in court and tshirts emblazoned with lettering. (See blog post from yesterday)
Seems to be inappropriate to me and grounds for a mistrial because some jurors on some days wore camo hats and tshirt obviously to show support for the Galesburg Gun Club and some jurors on some days wore tshirts with OSF or Order of St Francis which is a division of the Catholic Church/Diocese of Peoria emblazoned on it.
Even in the Circuit Court of Cook County none of that would ever happen.
However, since the jurors did it and no one said anything in court, today Penny and Tonny Williamson went to appear on zoom, one in camo tshirt and a hat with a large cross on it and the other with clothing with crosses on it.
They got on zoom, no one said anything, but as soon as court started, the zoom video cut out! Interesting. the audio was fine, but not the video.
No one said anything or objected, so we’ll see what happens out of this.
Apparently Knox County does not have a published dress code in its rules and I wonder if what the jurors wore was grounds for a mistrial. Appeals have been filed in 22 PR 12 and 21 MR 21, so let’s wait and see what the 4th District Court of Appeals says.
While this blog is investigating the strange and mysterious rulings of Judge Curtis Lane fueled by John Robertson and Paul Mangieri, out of no where comes a glowing article on the Williamson case wherein 150 acres of a home, farmland and timberland was taken from two elderly Christian ladies who were good lifelong friends of Frederick Stegall in Galesburg.
Apparently this is a weak and strange coverup of the nefarious activities in Knox County, IL court system.
So read on and let me know if anyone else has had their local newspapers publish strange and out of character articles in order to cover up crimes against the innocent in probate.
I’m sure it goes on.
Your turn: Our system of laws is still in good hands
Harry Bulkeley
Special to the Register-Mail
Did you ever go back to a place you used to work? It’s interesting how things are both the same and yet different. Recently I went back to the Knox County courthouse to observe a two week long jury trial. It evoked a lot of feelings.
I walked into one of the courtrooms where I had presided for 24 years. My picture is even hanging on the wall in one of the other rooms. But there was a different judge sitting where I used to sit. He and I had never worked together so it was interesting to watch someone else’s way of running a trial.
Some of the lawyers had familiar faces. One had appeared before me for years and another had been a judicial colleague until he retired and returned to the practice of law. The clerk had taken care of court files for me and the court reporter had written down a lot of things I have said.
The courtroom was always known as “The Big Courtroom” and had seen a lot of changes through its 140 years. New to me were the accessibility ramps and the television screens. It had also been fancied up since I sat there when I would sometimes find fallen plaster on my chair.
Among of the things I love about the law are its traditions. Everyone stood up when the jury came in. The clerk swore in the witnesses with the same oath used for centuries. (“Do you solemnly swear…”) The judge wore a robe like the one I had worn and like the ones judges have worn since back in England.
There were some differences. The jurors took notes and were allowed to submit to the judge questions they wanted him to ask the witnesses. A couple of jurors wore baseball caps through the proceedings. That was something I never allowed.
The case itself was an interesting one. A man had died and left his farmland to two sisters who claimed they had taken care of him. The Catholic Church and the local gun club sued, claiming that the man had promised to leave his property to them. He had, in fact, drawn up a will leaving everything to the church and the club but changed it shortly before he died.
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For two weeks witnesses testified about the decedent’s connection to the church and how his father had founded the gun club. Other witnesses recounted how he had been very close to the father of the two women who received the estate. With all the back and forth, it started to seem like a television drama.
In time-honored tradition each witness took the stand and told their idea of what happened. Then the lawyers on the other side started probing, looking for holes in their stories. All the while the jurors listened intently and took notes.
My experience was that in many cases less interesting than this one, jurors (and judges if you must know) sometime drift off during the dull parts of testimony. But for this trial, everyone listened carefully. There were even spectators who came to watch the trial every day. That is something you don’t see in a boring contract case.
Finally, the day came for closing arguments. Some of you may be aware that there are more than a couple of lawyer jokes circulating out there. Usually, they revolve around how crooked or inhuman attorneys are.
The arguments made to the jurors and their response to them made me proud of my profession. Both sides argued clearly and rationally. They didn’t shout or try to fool the jury.
They presented their clients’ case in a fair and reasonable way. It was a demonstration of what is good about our legal system and it made me proud to have been a part of it.
The jury was only out for about an hour before returning a verdict in favor of the church and the gun club. They not only gave them the land back but assessed a large penalty against the two women. It was how I would have voted but you can never predict what a jury will do.
The judge, the lawyers and the jurors all did their jobs well. Each one is an indispensable part of our legal system, and I was proud to see them perform so well.
As I sat in that courtroom and observed the same rituals that I had practiced, I thought about all those people both before and after me who have sworn to uphold our court system. Sometimes I could see swirling around the room the spirits of the scholars who had written my law books. Books that taught the logic and majesty of the law to past generations as well as the “youngsters” who came after me.
Americans have long taken pride in our judicial system, but we have also seen the frequent and often vicious attacks on lawyers and the law. Despite the criticism, when I went back to my old salt mine, I left assured that our system of laws is in good hands.
Who ever this guy is, he clearly has not read the entire court file, nor did he ever contact the co-trustees, Penny and Tonny Williamson to confirm the truth of what he asked to be published. He also knows nothing about probate law, or Fred Stegall, or Haynes, Hessler and Blake who appear to have put their dasterdly plans in motion.
If he did, he would have read the following file stamped post trial motion by the Williamson attorneys, Jeff Ryva and Teri Sosalla who know a complete different side of the case:
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT KNOX COUNTY, ILLINOIS F&M BANK, Executor of the Estate of FREDERICK J. STEGALL, Deceased, GALESBURG RIFLE CLUB, an Illinois not-for-profit Corporation and THE CATHOLIC DIOCESE OF PEORIA, an Illinois Religious corporation, Plaintiffs, vs. TONNY J. WILLIAMSON and PENNY J. WILLIAMSON, Defendants. Case No.: 2021 MR 21 DEFENDANT PENNY J. WILLIAMSON’S POST-TRIAL MOTION NOW COMES, Defendant, PENNY J. WILLIAMSON (hereinafter “PENNY”), by and through her attorney THERESA L. SOSALLA of SOSALLA LAW, LLC, and for her Post-Trial Motion states as follows:
In addition to the matters addressed in this Post-Trial Motion, PENNY adopts and joins Tonny’s Post-Trial Motion filed on her behalf by attorney Jeffrey A. Ryva on March 21, 2023.
Denial of Defendants’ Discovery. One of the most egregious factors that denied Defendants a fair trial was the trial court’s refusal to allow Defendants to conduct meaningful discovery. The procedural history of this case – having been consolidated with both the guardianship case (21 PP 10) and the estate case (22 PR 10) – is convoluted at best. At any point in time prior to July 15, 2022 when Defendants filed their Answer to Plaintiff’s Second Amended Complaint, there had been some type of motion pending 2 which would impact the nature and scope of the various claims between the parties in the consolidated cases of 21 MR 21 and 22 PR 10. It was not until Defendants filed their Answer to the Second Amended Complaint on July 15, 2022 – as opposed to filing another motion directed at the Second Amended Complaint – that the allegations of that complaint defined Plaintiffs’ cause of action against Defendants.1 However, the trial court had entered an Order following a June 24, 2022 hearing which closed discovery on August 1, 2022.2 The impossibility of completing discovery in two weeks is palpable. The trial court apparently believed that discovery in 21 MR 21 could, and should, have been conducted during the time when Defendants’ Motions to Dismiss Plaintiffs’ Complaint were pending. This belief, however, is contrary to a later ruling following a hearing in 22 PR 12 wherein the court stated: Additionally, the Court made it clear that an extension in discovery would be granted in Knox County Case No. 22-PR-12 due to the Court not expecting the parties to continue with discovery when new Motions to Dismiss had been filed and encouraged the parties and attorneys to attempt to agree on a new discovery cutoff deadline.3 Defendants’ Motion to Dismiss the Second Amended Compliant in 21 MR 21 was denied on June 24, 2022. It defies logic how the trial court could recognize that discovery would not proceed while motions to dismiss are pending in the Estate case but expected discovery to be conducted in 21 MR 21 during the 17 months the case was on file prior to a 1 See Motion for Extension of Deadlines filed by Attorney Ryva on July 21, 2022 for the status of the discovery at that time. 2 See Order referencing a June 24, 2022 hearing which was not filed until August 4, 2022. 3 See Order entered November 1, 2022. 3 ruling on Defendants’ motions to dismiss. The trial court arbitrarily treated discovery in the two cases differently. It abused its discretion in doing so. The lack of discovery available to Defendants crippled their ability to defend the claims against them and denied them a fair trial. The only remedy is to vacate the verdict and grant Defendants a new trial to be held after proper discovery is conducted by both parties.
Penny’s First Motion to Continue Trial filed February 9, 2023. Attorney Theresa L. Sosalla entered her Appearance on behalf of Penny on January 18, 2023. It was anticipated that several motions relevant to clarifying trial issues would be resolved at that hearing. Unfortunately, due to technical problems in the courtroom, that hearing did not proceed as scheduled. The hearing was reset for February 17, 2023. Attorney Sosalla filed a Motion to Continue Jury Trial citing several legitimate reasons why it would be unfair and prejudicial to Penny if the jury trial remained on schedule to begin February 27, 2023. Consequently, Penny’s Motion to Continue was not resolved until 10 days prior to trial at the February 17 hearing; the trial court denied Penny’s motion without oral argument. “Discretion” is defined, in part, as “individual choice or judgment” or the “power of free decision or latitude of choice within certain legal bounds.”4 The Court summarily denied this motion without addressing the merits of the grounds cited for a brief continuance of the scheduled trial. There is nothing in the record upon which the rationale for this ruling can be determined other than Plaintiffs’ and the Court’s intractable desire to begin the jury trial on February 27, 2023. Plaintiffs cited no prejudice or hardship that would befall them 4 See Merriam-Webster online dictionary at: https://www.merriam-webster.com/dictionary/discretion. 4 if the jury trial were to be briefly continued. While the decision regarding whether to continue a scheduled trial is within the trial court’s discretion, that discretion must be exercised to promote the interests of justice. The decision to deny Penny’s motion to continue was not the result of a conscientious consideration of the relative hardships or prejudices between the parties. The Court exercised no discretion, which is an abuse of discretion and error that compels granting Defendants a new trial.
Subpoenas to Witnesses. The issue of Penny’s outstanding subpoenas issued to several trial witnesses in early January, 2023 was scheduled to be resolved at the January 18, 2023 hearing. Those subpoenas directed the recipients to appear for depositions on written questions and directed them to produce certain documents on a specified date. Plaintiffs filed a Motion to Strike Subpoenas and Attachments and simultaneously contacted each of these witnesses to circumvent their compliance and prevent Defendants from obtaining necessary information regarding these witnesses’ anticipated testimony at trial. See letter attached hereto as Exhibit A.
Penny’s Second Motion to Continue Trial filed February 15, 2023. The court also unfairly treated Penny from the standpoint of her medical condition. The court was presented with some evidence of Penny’s inability to come to court for the jury trial. The court denied a continuance but significantly compounded the problem during a large part of the jury trial. Eventually, the court began to go on the record to say Penny appeared through her attorney, Ms. Sosalla. But before that, on numerous occasions in the presence of the jury, the court noted that Penny “fails to appear.” There is no rule or other requirement that a litigant in a civil case appear at trial in the absence of an order 5 compelling her to do so. Repeatedly stating that Penny “fails to appear” gave the impression that Penny did not care or at least allowed the jury to speculate why she was not present. The court probably used the failure to appear language a dozen or more times as the parties were reintroduced each time after a break of any kind. This could have been cured to some extent by saying something once and then noting all parties present with and through counsel as previously noted. Even when Penny’s counsel objected once, the court disagreed and said it would (and did) keep commenting that Penny had failed to appear. Penny’s physical impairment caused by a medically diagnoses condition prevented her from attending the trial. Her absence from jury selection prevented her from providing insight into which juror may have a propensity toward bias against her. In addition, her absence prevented her from rebutting certain unanticipated testimony from Plaintiffs’ witnesses which prejudicially impaired the jury’s ability to effectively perform the important “fact finding” function that is the foundation of the jury trial system. See Affidavit of Penny J. Williamson, attached hereto as Exhibit B.
Subpoena to the Diocese — The jury ruled for Plaintiffs on liability very late on Friday March 10, 2023. Until then, there was no right to get the same jury to consider whether punitive damages should be awarded. This second part of the trial commenced at 9:00 a.m. Monday March 13, 2023. On the intervening Saturday, a subpoena was issued to the Diocese as follows: TO: Russ Courter, or any knowledgeable financial person from the Diocese conversant with the items and documents set forth below c/o John Robertson its counsel of record by email. YOU ARE COMMANDED to appear and testify as a witness and authenticate the documents described below on Monday March 13, 2023 at 9:00 a.m. before the 6 Honorable Judge Curtis Lane at the Knox County Courthouse, 200 S. Cherry Street. Galesburg, IL 61401. And to bring all documents related in any way to the claim being made that day for punitive damages including but not limited to at least any expenditures made in connection with such claim, whether detailed invoices or indicia of payment thereof, and a statement of net worth of the Diocese as of January 1, 2021, January 1, 2022 and now and an account monthly of all revenues received and expenses paid from January 1, 2021 through the present date. A check for appearance and mileage will be tendered on arrival of the witness at court, due to timing issues. YOUR FAILURE TO APPEAR IN RESPONSE TO THIS SUBPOENA WILL SUBJECT YOU TO PUNISHMENT FOR CONTEMPT OF COURT.
Any witness shall respond to any lawful subpoena of which he or she has actual knowledge, if payment of the fee and mileage has been tendered. Supreme Court Rule 237(a). Here, Defendants acted as quickly as possible to demand, as they were entitled to, evidence of the financial status of the Diocese. This Court properly instructed the jury to consider the financial vulnerability of all plaintiffs. The financial position of the Diocese was therefore relevant. The problem occurred when the Diocese produced neither Father Brokaw nor the subpoenaed Mr. Courter Monday nor any of the subpoenaed financial information. This left the jury with no direct evidence of the financial wherewithal of the Diocese. The Diocese clearly was aware of the subpoena through counsel and that they would receive a check for appearing Monday morning. No motion to quash was filed over the weekend or Monday morning. Notably, Plaintiffs had abandoned their request for punitive damages, only having brought it back into the case once this Court said Defendants were entitled to a jury trial. And discovery had closed before they had an opportunity to do so.
But, the Court simply said that the subpoena could not be enforced because it had not been served three days before the time when compliance was demanded. The 7 Court did not cite any rule to support this decision. It conflicted with governing Supreme Court Rule 237(a). There does not appear to be any local rule that could trump an inconsistent Supreme Court Rule on the subject. See Phelan v. Groeteke, 293 Ill. App. 3d 469 (1997) (local rule requiring compliance within two days invalid when Supreme Court Rule allowed three). The court should have enforced rather than effectively quashing the subpoena related to this important issue.
Defendants’ Offers of Proof Regarding the Diocese Use of Funds — Another error involved the Court denying the offer of proof made by Defendants that sought testimony about the Diocese. One area of inquiry was whether the Diocese had contributed any part of the $346,000 received directly from the POD accounts when Stegall passed to contribute towards or defer expenses related to Stegall’s non-rifle club property. Another subject was whether the Diocese had donated from POD funds or had plans to donate from the alleged other 1.5 million dollars to the charities (NRA, VA or Red Cross) Stegall supposedly told Brittany Miller specifically he wanted to benefit from his estate. Plaintiffs harped constantly on the notion that Defendants would just glom onto the property, suggesting they would sell it, rather than as Tonny testified they would remain stewards of it by caring for the land and donating to several charities as Stegall had requested. Defendants were entitled to try to flip the script and argue that the church not only had not done anything regarding the property and did not share or plan to share Stegall’s largesse with anyone else. The jury never heard a word about what the church would do. This was erroneous and unduly prejudicial. 8
The court’s ruling was that the idea of a monument or plaque put up to honor Stegall and what the Diocese did with the $346,000 for him personally was irrelevant. As stated, even this was erroneous. The offer of proof though was not limited in this fashion. Defendants were also talking about using POD funds on and towards Stegall’s farm acreage and whether it would honor his wishes about donating to other charities. These were the particular areas of relevance, yet the court never allowed the jury to consider them.
Court’s Own Knowledge and Affiliation with Catholic Church — The Court also significantly erred when it brought its own knowledge outside the record into the proceeding. The transcript reveals that the court injected its own knowledge about such matters as follows: “[T]o me that would be counter to what the Roman Church does because we don’t have any idols outside of the Heavenly Father.” On its face, this statement strongly suggested an association between the court and church that had never been disclosed to Defendants that should have been. Defendants would have had a right to move for automatic substitution of judge after Judge Rasmussen left the case. Or perhaps there would have been grounds to request voluntary recusal or to petition to substitute for cause or even supplement one of the other such motions.
There is case law on potentially biased judges which apply the same test as for a jury. In re Heirich, 10 Ill.2d 357 (1956), is one example. The Supreme Court noted that it did not in fact even hold or intimate that the particular commissioner was infected, consciously or unconsciously, with prejudice or affected by other motivation against the Respondent. The ruling was based upon the classic principle of jurisprudence, that no 9 man who has a personal interest in the subject matter of decision in a case may sit in judgment on that case. The opinion goes on to note that the same rules would apply to any venireman in a jury trial. See also Bender v. Board of Fire & Police Commissioner of Dolton, 254 Ill.App.3d 488 (1993) (such personal interest requiring disqualification does not have to be a direct pecuniary interest in the outcome of the case; it need not be pecuniary at all; it need only be an interest which can be viewed as having a potentially debilitating effect on impartiality).
The first canon of the Illinois Code of Judicial Conduct says: “A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE’S ACTIVITIES.” Comment [5] explains: “The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s … impartiality … as a judge.” Specific rules say this:
RULE 2.11: DISQUALIFICATION (A) A judge shall be disqualified in any proceeding in which the judge’s impartiality* might reasonably be questioned, including, but not limited to, the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer or personal knowledge* of facts that are in dispute in the proceeding. … (4), The judge while a judge or a judicial candidate,* has made a public statement, other than in a court proceeding, judicial decision, or opinion that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy. [Emphasis added.] 10
COMMENTS [1] Under this Rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(l) through (6) apply. [2] A judge’s obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed. [5] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification. [Emphasis added.]
While certainly no litigant ever wishes to be in this predicament, these points must be preserved. The Court should have never kept this case from the beginning. Defendants had no idea at the outset that this Court had any affiliation with the Catholic Church. This should have been disclosed as Comment [5] to Rule 2.11 mandates. It should be beyond obvious from Defendants’ voire dire of jurors on their associations that they would have exercised their right to automatic substitution of judge as soon as Judge Rasmussen exited the case. His directive was to see if Judge Lane and all parties consented. Defendants would not have even had to use a substitution of judge motion since they would not have consented at such a time.
There is also the issue which again needs to be raised no matter how distasteful it may be doing so. Attached hereto as Exhibit C is a newspaper article containing a statement made by the Judge Lane when he was running for office about his Catholic upbringing. This affiliation with the Catholic Church, whether ongoing or in the 5 Article available at: https://www.cantondailyledger.com/story/news/local/2014/03/09/curtis-lane-ninth-judicial-circuit/38366626007/. 11 past, should have been disclosed to the parties before Judge Lane took over the assignment of this case. Not doing so violated the rules governing candidates not making statements appearing to rule on way.
At a minimum, even if there was no such affiliation, the court clearly brought its own knowledge of religion into the equation. A court cannot do so, plain and simple. It has long been the law that a judge cannot bring in matters outside the record through personal knowledge only. Streeter v. Streeter, 43 Ill. 155, 167 (1867). This itself was error.
Judge Lane first heard any aspect of these proceedings on January 10, 2022. Apparently set at that time were a Motion to Certify for Appeal a certain question Judge Rasmussen had answered; a Petition for Rule Show Cause concerning confusion over date on which Defendants would be deposed; and a status regarding discovery and deposition deadlines and related processes. Judge Lane obviously knew from having read part of the file beforehand, and knowing the Catholic Diocese was a party, that he was entering a highly contested case between parties to include the Catholic Church. There was an initial discussion about whether Judge Rasmussen intended to keep the case; it appeared that he concluded that as long as counsel and Judge Lane agreed that Judge Lane would take the remainder of the case other than the Motion to Certify question. There was no disclosure about any association Judge Lane may have had with the Catholic Church. Defendants themselves were not present for the January 10, 2022 proceedings.
Defendants did not actually know of the hearing and were entitled to be present for the discussions that took place on January 10, 2022, in various terms. These 12 included whether to agree to have Judge Lane even take over the case, Judge Rasmussen having stated that Judge Lane and all parties agreed with Judge Lane to do so. Moreover, discussions ensued about whether any written discovery would be conducted and how many depositions were to be taken. Defendants’ then attorney remained mute when the Court asked if any written discovery was still to occur (the Court hearing nothing closed all written discovery immediately) and how many depositions would be taken, with those of Defendants, Dr. Hershkowitz, and Attorney Steve Holland even being discussed. Had Defendants known of these matters, they would have insisted on a broader form and extent of discovery and depositions. That would have also been the time to discuss expert witness disclosures and other matters. Nothing of this sort was ever mentioned.
In connection overall with the denials of continuance and stay motions, Defendants believe it prudent to return to that hearing transcript. It is obvious from any reading of what occurred on that date was that Judge Lane had, at the very beginning, became completely consumed with getting the case tried, with little discovery, as soon as possible. A number of times the Court referenced that the case was simple and that pretty much any attorney of any kind could try it quickly and appropriately. This course of events began right from the start, with the trial court never wavering from its view to push the case to conclusion, no matter what, at the earliest date.
That transcript also reflects an astonishing example of the Court jumping to conclusions. Without even being asked, Judge Lane required that the Court Order for the new deposition date for Defendants include language that not only must they physically appear at the date, time, and place set forth, but that if they did not appear that they 13 would have no right whatsoever to provide testimony on their own behalf at trial. That unsolicited ruling set the stage for what occurred later in the jury trial. When called as an adverse witness by Plaintiffs, the Court threatened Tonny with having all of her testimony stricken if she would not answer questions in the way the Court thought they should be answered. As stated in other recent motions, this was improper. If this was just the wrap up of the die being cast from the beginning, the first day Judge Lane heard anything about the case prejudging what would happen if for any reason, legitimate or otherwise, Defendants failed to appear a second time for deposition. Illinois case law clearly stated that Orders barring or striking testimony are the last resort to be used. Here, the Court, before even hearing the pending Rule to Show Cause and Attorney’s Fee claim, which ultimately did and would include testimony justifying why the first deposition date was missed due to confusion.
Motions for Substitution. Throughout the pre-trial proceedings, the Court repeatedly demonstrated its lack of impartiality toward Defendants’ interests in this litigation. Two separate Petitions to Substitute Judge for Cause were filed prior to trial.6 These Petitions set forth numerous instances of objectionable conduct directed toward Defendants which called into question the Court’s ability to make rulings based solely on the facts and law. Instead, this conduct created, in the least, an appearance of impropriety demonstrating its prejudice against Defendant. While this conduct was inappropriate at the time, the revelation of the Court’s affiliation with the Catholic Church in the midst of trial sheds new light on the motivation – whether conscious or unconscious 6 See Petitions filed April 27, 2022 and October 31, 2022. 14 – for the Court to enter rulings favorable to Plaintiffs and adverse to Defendants. Despite Defendants’ attempts to bring this disturbing conduct to the attention of the Court by filing the Petitions to Substitute, the animosity of the Court directed at the Defendants and their counsel continued unabated. The resulting appearance of bias and impropriety casts the judiciary in such a negative light that it is impossible to state that Defendants received a fair trial.
Jury Room Not Soundproof. Tonny’s post-trial motion addressed the disturbing fact that the juror room was not soundproof. Not only could the jurors have heard what was going on in open court at the times when the Court removed them, there was another problem. The jurors used the same hallway and elevators/stairs as the parties, counsel, witnesses and general public did. There was a time that attorney Robertson was heard in front of a waiting witness or at least the general public casting negative aspersions on Defendants. In short, the jury was susceptible to exposure to information which was neither appropriate nor intended to be provided to them. It is impossible to cure the prejudicial impact these improprieties had on the jury’s verdict other than by granting Defendants a new trial.
Attorney Fee Bills. The Court erred in admitting the attorney’s fees bills and submitting them to the jury. The exhibits clearly included work assertedly performed for the 22 LA and guardianship cases, a separate insurance coverage case and the probate matter itself. It was up to Plaintiffs to put in an accurate recitation of fees for this case. Even the jury instruction given on punitive damages limited the harm alleged to for just this case, 21 MR 21. Mercado v. Calumet Federal Savings & Loan Ass’n, 196 Ill. App. 3d 483 15 (1990), reversed a fee award for failure to provide a clear and proper breakdown of recoverable fees. The Court went on to note that if fees are caused to be incurred and litigated over elsewhere, this is reason to reverse as well. Our jury compounded the error by obviously awarding punitive damages exceeding even the amount of fees that included those themselves unrecoverable as stemming from other litigation. Plaintiffs specifically contended they at least should be made whole and have attorney’s fees paid. This is not an abstract or de minimus point. As shown in Tonny’s affidavit, noting Defendants could not make the calculation at trial when large packets of fee bills with hundreds of entries were dumped on them, the fees for other matters amounted to over $110,000 Also, the Court should not have allowed all the billings for the Church and Rifle Club while Stegall was still alive. They did not have standing until he passed. The Court had previously erred in not dismissing those entities for lack of standing then. This error was exacerbated by then allowing billings for this improper period to be submitted to the jury.
The Court erred in admitting the Plaintiffs’ attorneys fee bills and submitting them to the jury. The exhibits clearly included work assertedly performed for other cases pending between the parties, including the guardianship case and the probate matter. It was up to Plaintiffs to put in an accurate recitation of fees for this case. Even the jury instruction given on punitive damages limited the harm alleged to for just this case, 21 MR 21. Mercado v. Calumet Federal Savings & Loan Ass’n, 196 Ill. App. 3d 483 (1990) reversed a fee award for failure to provide a clear and proper breakdown of recoverable fees. The Court went on to note that if fees are caused to be incurred and litigated over elsewhere, this is reason to reverse as well. The jury compounded the error by obviously 16 awarding punitive damages exceeding the amount of fees that included those themselves unrecoverable as stemming from other litigation. Plaintiffs specifically contended they at least should be made whole and have attorney’s fees paid. This is not an abstract or de minimus point. As shown in Tonny’s affidavit, attached hereto as Exhibit D, Defendants could not make the calculation at trial when large packets of fee bills with hundreds of entries were dumped on them on the morning of the trial on punitive damages. Also, the Court should not have allowed all the billings for the Church and Rifle Club while Stegall was still alive. They did not have standing until he passed. The Court had previously erred in not dismissing those entities for lack of standing then. This error was exacerbated by then allowing billings for an improper time period to be submitted to the jury. 27. Juror Misconduct — Two jurors (Epkins and Surface) submitted jury questionnaires stating they had not been convicted of a criminal offense. Attached as Exhibit B are documents showing otherwise. Defendants would have used challenges under the statute for cause (see 705 ILCS 305/2 (a) (3) requiring jurors be: “Free from all legal exception, of fair character, of approved integrity, of sound judgment, well informed, and able to understand the English language, whether in spoken or written form or interpreted into sign language.”) 28. Alternatively, if Defendants had accurate information regarding these jurors’ criminal history, then they would have used peremptories on them in the alternative. See Donough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). It directly addresses lying about a criminal conviction. The Supreme Court held that a new trial would be 17 required if the movant establishes that the juror actually lied, and that the juror would have been dismissed for cause if they answered truthfully.
Juror Bias Due to Association with Diocese Healthcare Institutions. A juror’s knowledge of, or association with, a party is a quintessential example of grounds to remove that juror for cause. Defendants repeatedly raised the issue of various juror’s association with the Diocese of Peoria through his or her affiliation with healthcare facilities that fall within the Catholic Healthcare Ministry of the Diocese. See Exhibit E from the Diocese of Peoria website which acknowledges its affiliation with many OSF7 healthcare facilities. The prospective juror’s connection to the Diocese often involved their employment with institutions inseparable from the Diocese, i.e., OSF facilities or Catholic Charities. Defendants should have been allowed to remove such jurors for cause and not be required to use peremptory challenges in their efforts to select a fair and impartial jury.
Substitution of Judge Motions — In addition to the arguments above made concerning the Court not advising Defendants at the outset that he had an affiliation with the Catholic Church, such that they would not have consented to Judge Lane when Judge Rasmussen indicated he would step aside if Judge Lane and all parties consented, or could have used a substitution of judge as a matter of right, the Court erroneously denied the motions for cause as well. For reasons stated in those motions, either or both substitution motions should have been granted. Especially egregious was the fact that the second one was filed by Penny pro se, and the Court struck it with prejudice, with no right 7 Information available at: https://cdop.org/ministries/catholic-healthcare-ministry/medical-facilities-within-the-catholic-diocese-of-peoria/. 18 to amend, on technical or procedural grounds, not substance, without allowing Penny to even argue her motion at all. The Court said there was no proper verification but there was an electronic one. Even if it was not in proper form, the appropriate ruling should have been to give leave to cure it within 7 days or in open court right then.
Additional Court Involvement – A separate case is pending before Judge Rasmussen with Defendants here Plaintiffs there against Messrs. Haynes, Hessler and Blake. It involves the purported will of Stegall of July 6, 2020. A hearing occurred in that matter before Judge Rasmussen on April 12, 2023. Defendants attended. Judge Lane appeared in the courtroom gallery for a significant part of the hearing, even though that case is not assigned to him. In addition, Defendants learned that attorney Robertson was also present although he does not represent a party to that case. And, moreover, Robertson advised Tonny’s counsel that he and Paul Mangieri who represents Haynes in that case met with Judge Lane who advised that he was directing them to get a hearing set in the 21 MR 21 case on any filed motions other than the actual post-trial motions of Defendants. The motions on file then all depended upon the enforceability of the judgment on the jury verdict which was already stayed by Tonny’s having filed a post-trial motion the day after the judgment.
Sanctions Rulings Defendants were sanctioned erroneously. On one occasion, attorney Mangieri even stated that he only believed Attorney Vizciano should be sanctioned. But the Court ordered sanctions against Defendants, thereby again showing prejudice against them. Defendants incorporate by reference all arguments made by them in written submissions and on the record. Specifically, Tonny had difficulty hearing, as 19 reflected by the Court numerous times during trial, and this led to her not deciphering the difference between the two banking institutions that generated the dispute.
CUMULATIVE ERROR. While any one individual error alleged in Defendants’ Post-Trial Motions may not be sufficiently prejudicial to the Defendants, the cumulative effect of these errors denied Defendants’ right to a fair trial. Marriage of Sadovsky, 2019 IL App (3d) 180204 (favorable ruling on husband’s petition to terminate maintenance was reversed and remanded for new trial when trial court exceeded its discretion in excluding expert testimony as discovery sanction and refusing to consider statutory factors in ruling on petition to terminate maintenance). In Sadovsky, the appellate court acknowledged that reversal of a judgment based on evidentiary errors is rare, yet it is appropriate when the errors are substantially prejudicial so as to affect the outcome of the case. Id. at ¶ 24 (“Although a single error may not warrant reversal, several evidentiary errors may require a new trial.”). In the current litigation, the alleged errors far exceed those which lead to a new trial in Sadovsky. These errors fall into the following general categories: A. Improper limitations on discovery. B. Judicial bias and abuse of discretion. C. Juror bias. D. Prejudicial errors in admission of evidence favorable to Plaintiffs and the exclusion of evidence favorable to Defendants. E. Prejudicial rulings allowing the amendment of Plaintiffs’ pleadings against Defendants. F. Prejudicial rulings allowing Defendants to present evidence for assessment of punitive damages. G. Improper instructions to the jury as a consequence of such prejudicial rulings. 20 In light of the cumulative effect of the numerous errors and abuses of discretion in the trial court’s rulings throughout this litigation, it cannot be said with any confidence that Defendants received a fair trial. The only remedy is to vacate the verdict and grant Defendants a new trial to be held after proper discovery is conducted by both parties.
Wrap up. WHEREFORE, Defendants Tonny and Penny Williamson respectfully request that the Court GRANT them the relief herein requested, vacate the jury verdict and punitive damages awards and set this matter for retrial following Respectfully submitted, PENNY J. WILLIAMSON, Defendant By: Theresa L. Sosalla ARDC: 6220454 SOSALLA LAW, LLC 1800 3rd Avenue, Suite 404 Rock Island, IL 61201 TEL: TEL: 309 -794 794-3212 32123212 FAX: FAX: FAX: FAX: FAX: 309 -788 788-9332 93329332 email: email: attorney@ravenclawyer.com
The real question is now will attorney/former judge Bulkeley retract that article when presented with the facts before him.
We are still waiting on all the trial transcripts. But in case anyone has any doubt that Fred didn’t absolutely love these two elderly Christian women, here is the video evidence:
The decision was fair and well reasoned. The estate of Mordecai Faskowitz (the murderer) will NOT benefit from the horrendous stabbing death of Marjorie Ivy! (Not long before their deaths, Miriam Solo Greenfield prepared testamentary documents leaving Mordecai’s assets to her son. Miriam Solo was the sister of Mordecai.) Mordecai stabbed poor Marjorie 40 times, slit her throat and then “sliced her” to be sure she was dead.
Some important excerpts from this case:
On October 3,2013, during a well-being check, Chicago police officers discovered the body of Marjorie G. Ivy (“Decedent” or “Marjorie”). It was later determined that her death was the result of homicide committed by her long-term partner, Mordechai Faskowitz (“Mordechai”). The criminal court proceeding found that Mordechai was not guilty by reason of insanity (“NGRI”) for causing Marjorie’s death.
On May 16, 2014, Judge Karen O’Malley (“Judge O’Malley”) named Marjorie’s nephew, Christopher Ivy (“Petitioner” or “Ivy”), the Independent Administrator of her Estate. Marjorie died intestate, leaving several nieces and nephews as her heirs at law. However, prior to her death, she named Mordechai as a beneficiary on a number of assets.
In June 2018, Judge O’Malley granted Ivy’s motion for summary judgment. Judge O’Malley ruled that Mordechai was ineligible to inherit under the Slayer Statute because, in order for Mordechai to claim the NOR! defense in the criminal case, the State was required to prove each element of each offense charged beyond reasonable doubt. Judge O’Malley reasoned that since Mordechai was determined to be NOR! for first degree murder, there was no genuine issue of material fact regarding as to whether he intentionally and unjustifiably caused Marjorie’s death.
The appellate court disagreed. The appellate court found that, for purposes of the Slayer Statute, the criminal court did not rule as to whether Mordechai “intentionally” caused Marjorie’s death. See Ivy v. Faskowitz (In re Estate a/Ivy), 2019 IL App (1st) 181691 , ~85. Specifically, the criminal court did not identify whether Mordechai intended to kill Marjorie, cause great bodily harm, and/or if he knew that his acts would cause her death. Id. at ~47 . The matter was remanded to this Court for an evidentiary hearing. Id. at ~87. While on appeal, Mordechai died on May 15, 2019, and Judge O’Malley was re-assigned to the Law Division since the case was remanded. Accordingly, this Court has decided several issues on remand.
First, this Court disqualified Miriam Solo Greenfield (“Solo”) from serving as the Estate of Faskowitz’s (“Respondent” or “Faskowitz’s Estate”) attorney and witness. Solo is Mordechai’s sister and the Executor of his last will and testament. Further she provided testimony at this trial and one of her children is the sole beneficiary of Faskowitz’s Estate, which stands to benefit from Ivy’s Estate.
Portions of the criminal trial transcript that contain stipulated statements from Dr. Christiana Floreani ‘s (“Dr. Floreani”) were admitted as Petitioner’s Exhibit 7 (“Pet. Ex. 7”). Dr. Floreani is a psychiatrist who was ordered by the criminal court to evaluate Mordechai. Pet. Ex. 7, p. 150-51. Her evaluation consisted of interviewing Mordechai and Solo, and reviewing police reports, other psychiatric evaluations, medical records, and Mordechai ‘s own handwritten documents. Jd. at 151.
A Certified copy of Solo ‘s response to Independent Administrator of the Estate of Ivy ‘s First Set of Requests to Admit was admitted as Petitioner’s Exhibit 2. Mordechai ‘s Last Will and Testament was admitted as Petitioner’s Exhibit 4. Mordechai executed his will on May 4, 2019 and died on May 15, 2019. (notice how close those dates are together and do not forget that Solo drafted these documents and further that Mordechai was in Elgin mental institution at the time that he signed these documents). He named Solo ‘s son, Avrohom Soloveichick, as his sole beneficiary. Finally, the Verified Motion to Spread Death of Record of Mordechai Faskowitz was admitted as Petitioner’s Exhibit 5.3
C. Examination of Miriam Solo Greenfield Solo is Mordechai’ s sister and the independent executor of his last will and testament. Id. 167 -68. Her son, A vrohom Soloveichick, is the sole beneficiary of Mordechai’ swill. Id. at 260-
Solo testified to her experiences with Mordechai’s ongoing mental health issues. She reported Mordechai’s symptoms started in his late 20s, but he had “his first break with reality”when he started acting erratically and ranting about various delusions at a bar mitzvah. Id. at 178-80. These breaks with reality included paranoid delusions about the Irish mafia, skinheads, demons, the CIA, and the FBI. Id. at 180. Mordechai stated that everyone should eat raw rats to prevent the evils of the world. Id. at 177. Shortly thereafter, Mordechai was hospitalized and it became clear that his mental health symptoms improved with medication. Id. at 179-80.
Solo testified that sometime either before or after the hospitalization, she received a “science fiction letter” from Mordechai that contained his ongoing delusions about skinheads, the government, and Satan cultists. Id. at 180-81. Mordechai hand wrote the letter, copied it, and sent it out to about 70-80 people, including prominent religious figures . Id. at 181 .
In 2003 Mordechai was involuntarily hospitalized after he crashed his car due to the belief that the CIA was chasing him. Id. at 222. Mordechai remained hospitalized until 2010, when he was able to get an apartment through Thresholds’ rehab facility. Id. at 223. Solo stated that around this time, Mordechai was back to his normal self. !d. at 224. In June 2013, Solo reported that Mordechai’s demeanor was calm and happy. Id. at 230-
In August 2013, Solo received a second letter (“Respondents Exhibit 1”) from Mordechai that was almost identical the previous letter he sent out.4 Id. at 185. This letter did not mention 4 lnitially Mordechai ‘s Estate offers the 20 13 letter as exhibit as Respondent Exhibit 2 (Transcript, p. 183), but later clarifies that this letter is Respondent’s Exhibit I (Transcript, p. 246). Additionally, Respondent or the court reporter is confused on whether the second of Mordechai ‘s two letters was written in 2013 or 2003. the word demon or Marjorie ‘s name. Id. at 263. Solo was concerned by the letter and tried to contact Mordechai. Id. at 227. She was unable to contact Mordechai until late August when her friend found him wandering the streets. Id. at 227-28. Solo testified that Mordechai was agitated and pacing, “smelly, dirty, and had lost weight.” !d. at 230, 232. Solo reported that Mordechai refused to answer whether he was taking his medication. Id. at 232. She attempted to call Thresholds but was unable to get through so Mordechai stayed at her house for a few weeks. Id. at 234-37. While at her house, Mordechai ‘s condition did not improve, and he would call Solo hundreds of times a day because he believed people were “tapping the phones.” id. at 235-37. In early September of 2013, Mordechai left Solo’s home after one of her sons returned home to celebrate an upcoming Jewish holiday. Id. at 240. Solo testified that Mordechai believed that her son had to leave because he was an evil force. Id. at 239. Sometime after Mordechai left, Solo discovered that he was hospitalized, but she was unable to obtain information as to why. Id. at 242. Mordechai called Solo after he was discharged from the hospital, but told her that he escaped and then began ranting about his ongoing delusions including that Marjorie was overtaken by evil force. Id. at 243-44. Solo testified that she was contacted by the hospital Mordechai was staying at after he killed Marjorie. Id. at 245-46. She reports that Mordechai was refusing to eat, unless he was brought raw rats. Id. at 246. Solo testified that when she finally got to speak with Mordechai he seemed paranoid and confused. Id. at 247 By the time of the criminal trial in 2016, Solo stated that Mordechai was taking his medication and had “calmed down.” Id. at 248. Solo reported that she had a conversation with Mordechai about killing Marjorie, 12 “[h]e talked about that he was insane when he had done this, that he didn’t realize what he was doing, that he loved [Marjorie], that he never would have hurt her, that his delusions were caused because he couldn’t get his meds.” Id. at 251.
On Solo’s behalf, she made the (very weak argument as follows):
Solo testified to Mordechai ‘s history with mental illness and the delusions he had close to the time of Marjorie’s death. She testified Mordechai stated that Marjorie was taken over by evil force. Solo’s testimony is consistent with the accounts given by Dr. Floreani, Dr. Seltzberg, and Theoharopoulos. [Faskowitz’s Estate makes an argument regarding an affidavit by Solo as well as her responses to interrogatories. While the estate contends that these documents are in the record, neither of these documents, were entered into evidence during bench trial.]
Section 2-6 of the Illinois Probate Act (“Slayer Statute”) states, in pertinent part, as follows: A person who intentionally and unjustifiably causes the death of another shall not receive any property, benefit, or other interest by reason of the death, whether as heir, legatee, beneficiary, joint tenant, survivor, appointee or in any other capacity and whether the property, benefit, or other interest passes pursuant to any form of title registration, testamentary or nontestamentary instrument, intestacy, renunciation, or any other circumstance. The property, benefit, or other interest shall pass as if the person causing the death died before the decedent, provided that with respect to joint tenancy property the interest possessed prior to the death by the person causing the death shall not be diminished by the application of this Section.
Further, evidence of Mordechai’s awareness that he killed a person can be found in Harrington’s testimony. Harrington testified that Mordechai asked him “to come pick up a killed body.” Transcript, at 49 & 52-53. When Harrington responded that the police needed to be called, Mordechai stated he did not want the police involved and hung up. !d. at 50-51.
In conclusion, the court stated:
CONCLUSION For the reasons stated above, the Court finds that Mordechai Faskowitz intentionally and unjustifiably killed Marjorie Ivy. Accordingly, Mordechai and his estate are barred under the Slayer Statute from receiving any benefit or distribution from the Estate of Marjorie Ivy.
Judge McGuire made the correct decision. In no way should Mordecai’s sister and her child benefit from the horrendous slaying death of poor Marjorie Ivy.
And the amount distributed to the relatives of Marjorie Ivy in no manner can ever compensate for such a horrid, horrid death.
And finally, I find it to be way to much of a coincidence that 1) Mordecai isn’t taking his meds and his sister Solo knows but does not make sure he stays safe in a facility; 2) Mordecai’s sister Solo prepares testamentary documents for Marjorie leaving everything to Mordecai, who in turn leaves his estate to Solo’s disabled son; 3) the documents are prepared and Marjorie is murdered; 4) Mordecai is placed in Elgin psych hospital where he signs documents to leave his estate to Solo’s disabled son; 5) Mordecai soon dies.
Anyone notice a pattern here?
Remember Solo was involved in a questionable estate in Florida which was investigated by the Florida ATG where Mordecai was the forgotten child who was not left a dime. (Elsewhere on this blog)
Now we have the Majorie Ivy questionable estate where two people died.
Solo is currently involved in the Estate of Ralla Klepak, another interesting case.
And I’m just noticing the facts. Nothing more. You my dear reader can draw your own conclusions.
As many of you are well aware, having no access to court documents, even the docket sheet is a serious and flagrant method of corruption. Changing the docket sheet and verbiage allows corruption to flourish.
This is especially crucial when 95% of all Illinois counties do not have their court documents on line. Insist that this change. It is not at all difficult to put all documents, not just the docket sheet online.
Here is the link to the 9th judicial court circuit in Illinois and no one has been able to link to it since 2 days.
5534 N. Milwaukee Ave JoAnne Denison, Executive Director Chicago, IL 60630 Cell Phone 773-255-7608 ph 312-553-1300 http://www.justice4every1.com fax 773-423-4455 JoAnne@Justice4Every1.com A social Justice Services NFP
Sheriff Dart Cook County Sheriff’s Offices Cook County, IL via email CCSO@ccsheriff.org
RE: Wrongful Eviction of Dean Sallas 4110 Suffield Court, Skokie, IL Illinois Appellate Case No. 1-22-1111
Dear Sheriff Dart;
I am currently receiving many complaints from ordinary citizens and taxpayers that your offices recently wrongfully evicted Mr. Dean Sallas, age 86, from his home in Skokie Illinois, where he has lived for decades.
This is apparently part of a loosely organized criminal scheme operating out of Probate Court with Judge Boliker as one of the principals, and Elizabeth Cassanova, and attorney from the Office of Public Guardian–an agency well known to take advantage of Illinois senior citizens, force them into nursing homes against their will and then to loot their estates (e.g. case of Lucille Valentino). The history of this agency is extremely poor, and the Probate Court is not much better.
The Record on Appeal together with the brief clearly shows a pattern of ignoring the rights of Dean Sallas and his wife Amelia Sallas and that the eviction which your employees performed under your direction and control, resulted in the false eviction of this man in the dead of winter during freezing temperatures.
The harrowing story in detail of what happened to Amelia and Dean Sallas in Probate and Foreclosure is repeated in several posts on the above cited blogs.
I am herewith demanding that you: 1) provide immediate suitable housing to Mr. Sallas 2) fix up the home of Mr. Sallas at 4110 Suffield Court and return him there as soon as it is suitable clean and ready for his and his wife’s occupancy.
Very Truly Yours,
/s/JoanneDenison/ Joanne Denison, Executive Director, Justice 4 Every1, NFP cc: Chicago FBI, marygsykes.com blog and justice4every1.com blog, Facebook, Twitter, etc.
Yesterday the appellate brief was finally filed by Dean Sallas, 86 years old and in extremely poor health. He has been involuntarily separated from his wife of more than 50 years by the Cook County Guardian’s Offices.
Judge Boliker of the 18th floor Daley Center is involved. Elizabeth Cassanova is involved. Sheriff Dart forcibly and wrongfully evicted Dean Sallas from the home he lived in in Skokie for decades. From Guardianship to Foreclosure and Chancery, Dean didn’t stand a chance with the all pervasive corruption.
I am herewith demanding that Boliker, Cassanova and Dart immediately provide housing for Dean and fix up him home and return him there. There is no excuse for all of this disgusting, horrid and very, very corrupt behavior.
The ARDC does nothing in Cook County, the JIB does nothing. But right now we have living proof of their corruption, an 86 year old husband and father whose life has been utterly destroyed by a Probate judge, the Office of Public Guardian and the Chancery Division, and then there is Sheriff Dart, always ready to send out his minions, goons and thugs to forcibly evict an 86 year old man in frail health who can barely walk.
This is one of the most digusting cases I have ever seen.
And this IS EXACTLY WHY I AM NOT LICENSED TODAY. I am honest about these cases, I run an honest blog and the ARDC hates it. They let corrupt and criminal attorneys run amok at all turns.
I have been told that I CANNOT BE A LICENSED ATTORNEY AND RUN A BLOG that truthfully reports on corrupt cases where attorneys freely dip into the honey pot and steal from Illinois consumers. Ken Ditkowsky also reports on the pervasive corruption, writes reports and letters to the Illinois authorities and the ARDC and JIB and for that reason, HE CANNOT BE A LICENSED ATTORNEY. Attorney Lane Amu reported on corruption where reported a corrupt sitting Illinois Judge and HE CANNOT BE A LICENSED attorney because he reports corruption and complains about it vociferously. He has tried to get his license back, but he cannot get it back.
Attorney Nejla Lane told a judge’s law clerk that her judge in Federal District Court that she is emotionally distraught that the judge does not want to follow Illinois Appellate law and her client is suffering because of it, and she received a 6 month suspension from both the Federal Court System and the State court system.
Anthony Phillips paid attorney Joanne Bruzgul some $20,000 and then got paid in full by probate and refused to provide an accounting and refused to return the overpayment. The ARDC dismissed his complaint. Anthony Phillips complained and his complaint was dismissed.
Recently, attorney Sharon Corse took some $17,000 out of her IOLTA trust account, without a court order, but a court order was required, and she too was told to return that money and she refused.
Today, Judge Michael Forti told Esther Zepeda that she could not reopen a fake $5,800 judgment from the law firm of attorney Tiffany Hughes who handwrote on a client retainer account that she could charge $200 per week until the bill was paid off. The client found more witnesses that TH offices does this frequently and the client found new case law that Illinois Courts cannot be a party to such fraud, and a 1401 proceeding could be used to open a fake judgement even years later. Judge Forti ignored all this and told poor Esther to “be sure to file your Notice of Appeal timely”. What a jerk!
By the way, here is the case, if you have to open up one of the many, many fake judgments issued by these corrupt judges and courts:
Clark v. Lay, 2022 IL App (4th) 220101 (Ill. App. 2022)
Recently, in the Williamson case in Knox County, the (lying) jurors came back with a verdict against Tonny and Penny Williamson to clear the way for a fake judgment that the Catholic Peoria Diocese and Galesburg Rifle Club could take some 150 acres of farmland and timberland away from them, again, in a corrupt probate proceeding. Numerous jurors lied on their juror forms that they had not been arrested, when in fact they had been arrested. One worked for OSF Hospital in Galesburg, an entity that was part of the corruption because OSF allegedly was sending out visiting nurses to care for elderly Fred Stegall, but during that time he was actually found filthy, had not bathed, there was no decedent food in the home, the bread was moldy, the milk sour, meat weeks old, flies everywhere–in January, old trash everywhere. So why did Judge Lane turn down a request to exclude her for cause?
The jury deliberated 5 min and turned over all that farmland to the plaintiffs. No discussion needed apparently.
Next the jury awarded $600k in punitive damages despite the fact that all Tonny and Penny Williamson did was take care of Fred Stegall the last year of his life. They actually spent over $60k on him when the probate court never gave him a dime of his own money for living expenses. The accounting on that case is a funky as weeks old hamburger filled with flies found in his refrigerator and the rotting bags of trash in his kitchen filled with flies.
As the investigation continues there is a lot more to come on that case.
But if you want the courts in Illinois cleared up, start with the ARDC and demand they remove everyone invoved in my case and the cases of Nejla Lane, Ken Ditkowsky and Lare Amu. The list of honest attorneys in Illinois is assuredly dwindling.
I have received quite a few complaints about the above case. Of course it involves guardianship and probate and a troubled courtroom. Judge Curtis Lane threatened the two elderly Christian defendants with jail no less than three times for no apparent reason found on the transcripts.
Then, the case went to a jury trial and while all the jurors said they had never been arrested, it turned out according to preliminary reports several jurors in fact had been arrested for misdeameanors such as bad checks and theft and deception.
All of the defendant’s discovery was blocked no less than three times by Judge Curtis L Lane. The victim, Fred Stegall, while obviously incompetent and unable to participate in this litigation, was required to take a deposition where it was clear he was incompetent. He could not recognize one attorney who he had just seen a couple months before, he did not know that the office had moved, he started talking about World War II for no reason and how he did not want to be forced to re enlist. He had no idea where he was or what was going on, but abusive attorneys continued the deposition.
The jury only deliberated for 25 minutes before they found for the Plaintiffs, but apparently they spent most of that time laughing and cracking jokes, according to witnesses sitting right outside the jury room.
The result of this (unfair and unjust) litigation is that the Catholic Church for some reason will gain over 200 acres of farmland and timberland. Since when does a church litigate to obtain land in an estate. They were clearly the aggressors and the plaintiffs.
Judge Curtis L Lane always favored them and their co conspirator, the Galesburg Gun Club.
One person has answered my requests for an explanation of all of this, but after showing him how the case was so very one sided and strange, he declined to comment further. Since he has not agreed to the release of his name, I will keep it confidential for now.
Please read on for the letters that I am sending out to find out what actually is going on with this case.
The behavior of Judge Curtis L Lane is especially egregious. He quashed all the defendants discovery, he quashed all their discovery, witnesses were limited, and we are waiting for the transcripts. The cases are up on appeal.
This is a copy of the letter to the Bishop asking why the Catholic Church is doing this to two elderly Christian ladies.
I hope they all come to Jesus and stop this horrible, horrible litigation. We already have too many false judgements against innocent people in probate.
Thank you for your consideration:
JUSTICE 4 EVERY1, NFP
5534 N. Milwaukee Ave JoAnne Denison, Executive Director Chicago, IL 60630 Cell Phone 773-255-7608 ph 312-553-1300 http://www.justice4every1.com fax 773-423-4455 JoAnne@Justice4Every1.com A social Justice Services NFP since 2014
Bishop Louis Tylka 419 NE Madison Ave Peoria,IL 61603
March 10, 2023
RE: Knox County Case No. 22 PR 12 and 21 MR 21 –Estate of Fred Stegall SEEKING INFORMATION ON KNOX COUNTY COURT CORRUPTION
Dear Bishop Louis Tylka ;
I am the Executive Director of Justice 4 Every1, an Illinois Not for Profit. I run and manage blogs (www.justice4every1.com and http://www.marygsykes.com) regarding corrupt and abusive guardianships in Chicago and in Illinois and nationwide. There are more than 1600 posts on those blogs about corruption in the courts and horrific abuse of the elderly in Guardianship and then their Estates are looted by attorneys and others in decedent’s estates and these blogs are extremely popular with over 300 hits per day.
We are currently seeking information on court corruption in Knox County and in particular in the above cases which involves the Fred Stegall Estate. Mr. Stegall unfortunately passed away in January 2022, leaving over 200 acres of farm and timberland, to Tonny and Penny Williamson, two elderly Christian women who cared for Fred Stegall during his final year and spent at least $115,000 to care for him, because his court appointed guardian Curtis Ford and his Guardian ad Litem appointed by Judge Radmussen refused to give Fred Stegall a dime in living expenses for over one year– no money for food, clothing and utilities, despite the fact that Fred Stegall had some $400,000+ in his bank accounts. Instead, over $60,000 went to court appointed lawyers to drain his estate. This, unfortunately is not uncommon in Probate, and in particular, Guardianship cases where the motto is: target, narcotize to guardianize, drain the estate, and when the money runs out, narcotize the elderly person to death and quickly bury the victim to destroy all traces of evidence the person was abused and drugged.
Anyone over age 50 can fall a victim to our nation’s thousands of probate courts. It is estimated that at any time, some 1.5 million elderly and disabled persons are locked into expensive guardianship proceedings where Estates are billed at rates from $300 to $400+ per hour, which typically drains the Estate quickly and the victim is typically left penniless and on medicaid and food stamps. In one guardianship case in Cook County, Lorraine Phillips, she was in a guardianship for 5 years and attorneys Franciszkowicz and David Martin billed her $4 million estate over $1 million in attorney’s fees. The Illinois appellate court apparently thought this was okay, because they never overturned those excessive attorneys fees.
In Mr. Stegall’s case, the Guardian and court appointed Guardian ad Litem (both Illinois licensed attorneys) never told Mr. Stegall’s friends he had been taken to a nursing home. All Mr. Stegall’s friends had to figure out where he was and how he had been taken when they abruptly found him missing one day. Curtis Ford and Patrick Egan would not allow Penny or Tonny to visit Mr. Stegall while he was in the hospital for 10 days prior to Curtis Ford moving him to a nursing home where he lived for about a week. Ford and Egan instructed hospital staff to not give Penny or Tonny Williamson any information about Mr. Stegall and they could not visit with their dear friend. The Williamson’s called St. Mary’s every day. It was Tonny who had called for an ambulance the morning after January 1, 2022 after finding Mr. Stegall laying on the floor beside his bed. She took Fred to the ER and stayed with him until he was admitted to the hospital, but then Mr. Ford and Mr. Egan would not let her see her dear friend or obtain any information regarding his condition.
But with good detective work and assistance of the angels, on January 16, 2022,Penny and Tonny located Fred Stegall in a nursing home in the quad cities. Only Tonny and Penny came to the nursing home to visit with Fred.
The Fred Stegall cases have been rocked with controversy and terrible problems.
And as a reporter for these blogs I personally have a number of questions:
Why is the Diocese of Peoria suing the Williamsons for their dear friend’s farm and timber land? When did churches start suing people to take their land? I personally have been involved with Christian churches for decades and I have never heard of a Christian Church suing an Estate, getting involved in any dispute in an Estate and trying to take farm and timberland from their friends and neighbors.
Why did the court and Judge Curtis Lane block all discovery (three times) as requested by the Williamsons, rush quickly to trial, and why did attorneys Paul Mangieri and John W. Robertson file suit against the Williamsons over this farmland when Fred Stegall made it repeatedly known that he did not want to sue the Williamsons and that James Blake was not his attorney and had never been his attorney?
Why did Father Brokaw take the witness stand and tell the following lies?
a. that Fred attended weekly mass without fail (when Fred did not attend weekly mass all the time, that he depended upon someone driving him since fall of 2020, and b) then his church, Abingdon Church was closed for approximately six months during Covid, and then c) Brokaw was not even the main pastor there at the time in question, so how would he know?) Prior to July, 2020 Brokaw was not the priest for Fred Stegall and rarely if ever saw him. All good questions.
Why is attorney John Robertson standing in the court hallways and telling witnesses that the Williamsons are “crooks and scam artists?” When in fact these are good, kind Christian ladies who took care of 95 year old Fred Stegall for over a year in his final days and spent over $115,000 on his care when the Guardian ad Litem and Guardian of the Person and court would not give him a dime for living expenses and necessaries?
Why did Brokaw provide false testimony to the court that the Williamsons prevented him from giving Fred Stegall last rites when in fact they had no control over that. At the time of his death Fred was in a Guardianship and only his Guardian ad Litem and court appointed Guardian (Curtis Ford and Patrick Egan) who could have done that. The Williamsons actually drove Fred to Catholic Church numerous times when he was too frail to drive himself.
Why was Brokaw shaking his head “no” during witness testimony when he either knew or should have known that no one in the courtroom is allowed to do that as in ever. That was a horrible thing to do. The jury clearly saw his actions. Who told him that can do that or should do that. Brokaw had one of the highest honors of sitting at counsel table during a trial and he abused that honor. He should promptly apologize to the court, the litigants and the jury.
But the bigger question is why is the Catholic Church and the Diocese of Peoria getting involved in Estates to try to take land from citizens via contested and expensive probate proceedings.
If you have any information on this case and why the proceedings are so very strange and troublesome I would greatly appreciate hearing from you. I am a reporter for two popular blogs on court corruption and you may provide me with statements “off record” and I would keep everything in confidence. (Illinois does in fact have a “reporter’s privilege law”)
It’s time to clean up the court system in Illinois, and I and other concerned citizens would greatly appreciate your help in doing so.
Remember that the greatest cure for corruption is always sunshine which is a tremendous cure for corruption.
If you have any information about this case or Judge Lane or Attorneys Paul Mangieri or John Robertson, I would greatly appreciate your bringing this information to my attention so that justice may be done. You are welcome to call, fax or email me with the information and it will be kept in confidence. If you call me, please email or text me first so I know you are a real person and not a robo call or spammer.
And please pray for these dear, kind ladies that justice may be done. Thank you.
Sincerely,
Joanne Denison Executive Director, Justice 4 Every1, NFP Blogger and dedicated to accountability in the courts
cc: Senate Committee on the Judiciary; Senate Special Committee on Aging
fn (735 ILCS 5/8-901) § 8-901. Source of information. No court may compel any person to disclose the source of any information obtained by a reporter except as provided in Part 9 of Article VIII of this Act.
Ken Ditkowsky is correct: the ARDC blew a gasket when it found out that 1) I knew Dean Sallas, and possibly Amelia; 2) I showed him how to get an email, log into zoom, watch his wife’s guardianship proceedings and I also told him to fight the corruption; 3) he now successfully files his own pleadings and communications with the court.
He and his wife have been deprived of their savings, their assets and Dean at age 85 or so was evicted from his own home, entirely due to the actions and inactions of certain judges and attorneys on the 18th floor of the Daley Center. Ken writes more about this in detail below.
The FBI and DOJ clearly know of the details of the Sallas case. They know the judges and attorneys in the guardianship of Amelia Sallas are dealing in looting the assets of married parties: Dean and Amelia without Deans consent, authorization and control despite the fact that all their assets are jointly owned and control and it is nothing but pure theft for 1) place Amelia in a facility without her knowledge and control; 2) ban her husband from seeing her there; 3) for years they banned Dean from taking her home so they could live together again; 3) they interfered in the mortgage of their home, failed to pay the mortgage and got Dean evicted and homeless at age 85. I am told he now lives in his car.
Will no one help this couple find justice? No attorney will touch the case because 1) Dean is homeless and penniless; and 2) the attorney can well expect false bar complaints against him or her for interfering with and delaying the looting of the Sallas estate.
The ARDC will go after you if you even mention stopping the money flow to certain judges and lawyers on the 18th floor in probate.
Hence, they spent hours on me when it was determined that I was helping the elderly use a computer, use the internet, create an efiling account and fully participate in preventing the looting of the Sallas estate.
It is my understanding that Dean Sallas continues to this day to fight for his wife, his home and his estate, despite the fact lawyers and judges operating on the 18th floor have how left him destitute and homeless.
He has no intention of ending this fight anytime soon. As long as he walks and breathes and can type and think, he will be filing his protestations of the horrific abuses suffered in Amelia’s guardianship proceeding.
Read on from Ken Ditkowsky:
The distinction between our current Government and that of a totalitarian government is simple. We rail concerning inequity, injustice, and inhumanity – the totalitarian government just does it! Mr Philip’s e=mail and complaint is as American as Apple pie! Sophia Campasano, Dean Sallas and a cast of thousands of elderly victims all have the very same complaint, to wit: a loved one has had his/her life taken over by a predatory guardian aided and abetted by a corrupt judge (or a series of corrupt judges) and all the agencies of government who boast of their compassion, honor and devotion to the 14th Amendment to our Constitution manifest total disinterest. Benign neglect would be a 100% improvement!Unfortunately, this fiasco does not end with rogue goverment or judicial theft – it in fact does not end until every stone has been tossed at the victim and his/her family and every loose dollar has found its way into the miscreants pockets. Anyone who stands in the way of the juggernaut of corruption is threatened or otherwise neutralized. Attorney JoAnn Denison attempted to teach Dean Sallas how to access Zoom. Attorneys for the wrongfully appointed and over-reaching Guardian and for the Byline Bank COMPLAINED THE Illinois Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois about Ms. Denison’s interference with the ****** the SALLAS savings and assets.Immediately, the IARDC jumped into action and dispatched a “trial attorney” to Ms. Denison’s abode to make all sorts of absurd and untrue charges against her. To silence the protest of Sallas, they even subpoenaed his “Goggle account.” (Sallas shared a copy of the notice with me!!!). Today, thanks to Ms. Denison’s ethically challenged activity of teaching a senior citizen to use ZOOM, Sallas is even able to access Court matters that concern his interests, speak to reporter Janet Phelan, etc. (the IARDC has written that they have dropped the ethical charges against Ms. Denison arising from the complaints involving teaching Mr. Sallas to use Zoom – however, they have relented on her suspension for exercising her 1st and 14th Amendment Rights in maintaining the MARYGSYKES blog!.Mr.Phillip’s situation is particularly vexing for the Financial elder abusers and their co-conspirators. He is not an attorney and he does not frighten. He just keeps on demanding J U S T I C E for his mother. The local miscreants are further vexed as he is complaining from a sister State and unless the bad guys wish to advertise that they are Grandma’s predators – Mr. Phillips personally is out of reach!THE SERIOUS PROBLEM THAT WE FACE IS THAT MR. PHILLIP’S COMPLAINT IS TRUE AND ACCURATE.like it or not, today when we ignore Mr. Phillip’s complaint we set ourselves up in the very near future to experience his woe very soon and very much in the very near future.
In all seriousness — today it is Mr. Phillip who reaches out for HELP – Tomorrow it may very well be me or thee!
On Saturday, March 11, 2023 at 10:53:17 PM CST, Key Phillip-s <phillipskey@yahoo.com> wrote:
I have followed almost every one of the recommendations. Asked for help from both the State of Washington, the ombudsman group, DHS, state prosecutors office etc and the federal government–DOJ, HHS, etc. The classic answer is that they are sorry but they either don’t have the resources or they don’t have the authority to even investigate.
I even have in writing a note probably drafted by a junior staff assistant and probably an attorney to Kelly Clarkson with the DOJ. She is too busy. I asked for help from HHS involving religious persecution and refusal to allow my mother to attend church–same answer. As if someone is drafting a standard response–I suspect drafted by the American Bar. The response is almost always the same. The Washington state prosecutor even went so far to suggest that if my mother was on the streets they could help but since a hotshot guardian was involved “they really didn’t have the resources.” In writing!
And help from “good” attorney’s doesn’t exist. They are all terrified of being sanctioned and possibly losing their license like the sixteen fine men and women in AZ I contacted to represent my mother when Ohana took her Tucson home. Not a single one would even talk to me as soon as they knew what it was about. Even the fine attorney of a large law firm who helped my mother and father write their first will and trust here in Tucson wouldn’t even respond–his second refusal to help. Nor did he allow anyone in his large firm to respond. I contacted both male and female attorneys, some with licenses in both states–not a single one. Several angrily hung on me. There is a law school with the UofA, I have called for help several times. They have no idea what I am talking about???
And if you complain too loud, the State of Washington will pull you into court again on trumped up accusations of harassment with threats to family.
I wonder where they will build the furnaces. .
On Saturday, March 11, 2023 at 04:19:32 PM MST, kenneth ditkowsky <kenditkowsky@yahoo.com> wrote:
ENT AND ABUSE BY GUARDIANS AND OTHER FIDUCIARIES
Guardians and Other Fiduciaries Who Mistreat Older Adults
While courts make efforts to ensure that guardians are trustworthy, some guardians have taken advantage of people in their care. The mistreatment could be financial, physical, emotional/psychological or any other type of abuse of an older person or person with a disability. Guardians also may neglect the people for whom they have a responsibility to provide care. These perpetrators of abuse can be anyone serving as a guardian (family members, trusted others, non-profits, professional guardians, agencies).
There is currently limited information on the number of guardianship cases involving abuse. The US Senate Special Committee on Aging and the US Government Accountability Office have highlighted the problem and cited anecdotal information. The National Center for State Courts has found that most reports on the problem of exploitation by guardians lack empirical data. Reports of fraud or other malfeasance by guardians have most often involved financial exploitation, but other types of mistreatment are also reported. Abusive acts by guardians may meet the definitions for various state and federal crimes, depending on the facts of the case. Guardians might be charged with such crimes as elder abuse, embezzlement, larceny, money laundering, theft, and neglect.
How can the courts with jurisdiction over guardianship cases respond to abuse?
A court with jurisdiction over a guardianship case might uncover evidence of abuse through monitoring, or a person or government agency might need to file a complaint or petition the court to respond to the mistreatment. These courts can take the following types of actions:
Freeze assets and/or restrict accounts – Courts may take these actions to limit a guardian’s access to money and property while investigating a case or preparing to take another protective step.
Investigate allegations of malfeasance– Once allegations of abuse have been made, courts can appoint a guardian ad litem, investigator or visitor to investigate. A court can also audit an individual’s assets or order an accounting by an external entity such as a certified public accountant.
Order repayment for lost assets or property – Such orders might restore lost assets but, in many cases, the only way to recover funds is through a bond that the guardian obtained upon appointment. Sometimes courts do not require bonding when the guardian is appointed, making it more difficult to obtain repayment for losses at the hands of the guardian.
Enforce statutory rights to communication and visitation – When abusive guardians use isolation tactics, family members and others may be able to seek orders enforcing state laws that define the rights of people subject to guardianship to interact with others of their choosing.
Appoint a co-guardian or limit the powers of the guardian – This strategy may help deter or stop mistreatment by a guardian.
Remove the guardian – Removal may be the best way to stop guardian malfeasance, and petitioners might suggest a willing and suitable replacement.
Terminate the guardianship – Less restrictive options or changed circumstances might lead a court to terminate the guardianship entirely.
Besides courts with guardianship jurisdiction, who can address abuse by guardians?
Numerous federal, state, and local government entities and non-profit agencies can respond and provide services when someone suspects that a guardian is mistreating an individual. Although the court has the sole power to impose certain orders such as removing the guardian or surcharging bonds, other entities can get involved and assist victims. These include:
Adult protective services – Anyone suspecting mistreatment by a guardian should report to adult protective services. Find your state or local adult protective services agency through the Eldercare Locator. Most states have laws making certain categories of people mandatory reporters of elder or vulnerable adult abuse.
Protection and advocacy systems – Protection and Advocacy Systems are federally-mandated state-based organizations that work to protect the rights of people with disabilities, including guarding against abuse. Find your protection and advocacy agency here.
Long-term care ombudsmen – If the individual resides in a nursing home (or, in some states, receives home- and community-based services), the long-term care ombudsman can investigate and resolve complaints about abuse, neglect, and exploitation, including complaints about guardians. Anyone can file a complaint, but the resident (or an appropriate representative) must consent in order for the ombudsman to investigate and share information. Learn about the ombudsman program here and find your local ombudsman.
Law enforcement – A guardian’s breach of duty may violate criminal laws and warrant investigation and prosecution. In addition to reporting to Adult Protective Services, individuals suspecting guardian abuse should report it to law enforcement. Contact your local law enforcement agency, your state attorney general, or call 911. Some recent examples of guardianship fraud cases pursued by the United States Department of Justice include cases in Pennsylvania and Florida.
Attorneys – Separate from the guardianship system, there are various civil actions that may apply to abuse by guardians. Depending on state law, civil attorneys might bring cases alleging breach of fiduciary duty, breach of contract, fraud, undue influence or a private right of action for elder abuse. Remedies might include restitution (repaying money lost), voiding documents including deeds, or other monetary awards of damages.
Federal agencies – If the guardian also serves as a Social Security representative payee or VA fiduciary and is misusing public benefits, individuals may report to the Social Security Administration Office of the Inspector General or the VA Office of the Inspector General.
Professional licensing boards – In some states, professional guardians may be certified, licensed or registered. State boards can investigate and may revoke a license or certification. If the guardian is a lawyer, the state has a committee that takes disciplinary action when a lawyer violates professional responsibilities.
What is power of attorney abuse?
Powers of attorney give a trusted person (the agent) a great deal of authority and access to money and property, without regular oversight. Power of attorney abuse can take many forms. The agent might spend the individual’s money on items for his or her own use rather than for the individual’s needs. The agent might do things that the document doesn’t allow, such as making gifts when that power hasn’t been granted. The power of attorney document itself might be forged or fraudulent in some other way.
State laws may help to prevent or limit power of attorney abuse. For example, the Uniform Power of Attorney Act, adopted in over half the states, permits a third party such as a bank to refuse to honor a POA when the abuse is suspected and the third party reports it to an adult protective services agency.
What are the remedies to address power of attorney abuse after it occurs?
Lawyers may help people to stop power of attorney abuse and to get money back that has been improperly taken by the agent. For example, a lawyer could:
Draft a document to revoke (cancel) the POA
Ask a court to require the agent to file an accounting to see how the agent has spent the money
File a civil action to cancel contracts or deeds that the agent should not have made
File a civil action to recoup money
Petition a court to appoint a guardian who can manage the finances if the individual is unable to manage money independently
In addition, agents under a POA may be prosecuted for abusing a power of attorney. Depending on state criminal law, power of attorney abuse might be theft, fraud, embezzlement, money laundering, exploitation or another financial crime. Through the criminal court process, a prosecutor could ask the court to freeze the individual assets to prevent further abuse, and could also seek restitution (repayment of money taken).
What do we know about abuse by government fiduciaries?
Reports from the Social Security Advisory Board, the Office of the Inspector General for the Social Security Administration, the Government Accountability Office, the National Academy of Sciences and other government and quasi-governmental entities over the past fifteen years have documented abuse by both individual and organizational representative payees. These incidents have prompted removal of payees from the program and, in some cases, criminal prosecution. The Office of the Inspector General for the Department of Veterans Affairs also has investigated and substantiated allegations of abuse by VA fiduciaries.
Ken Ditkowsky
On Friday, March 10, 2023 at 12:37:35 PM CST, kenneth ditkowsky <kenditkowsky@yahoo.com> wrote:
I dialed up the Committee’s web site and sent the following, to wit:
There is a war going on in Chicago that is not being reported in the media. Certain criminal elements (with great clout) have and are using the Courts to prey on elder citizens. The Guardianship case of AMELIA SALLAS 07 P 5360 is a prime example. Its companion case entitled BYLINE BANK vs. AMELIA SALLAS 2019 CH 13960 , now pending in the Appellate Court of Illinois is a text book example of wrongdoing. (Appellate Court 1=22 -1111).
By e-mail I’ve forwarded to you a draft copy of Dean Sallas’ brief.
Legislation is in place in Illinois and in most States that husband the WAR AGAINST GRANDMA & GRANDPA – the problem is a lack of enforcement.
In Illinois a guardian is appointed pursuant to 755 ILCS 5/11a – 3. Section 3a sets for a procrustean criterion for determining if a person needs a guardian, and section 3b the instruction how CONSISTENT WITH THE 14TH AMENDMENT that authority to appoint a guardian and the severe limitations required by our 1st, 4th, 5th and 14th Amendments.
Briefly, a guardian is a fiduciary and as such limited to actions that are 1) reasonable, 2) necessary, and 3) beneficial all judged by the clear light of hindsight. IN PRACTICE, the guardian with the consent and ultra vires conduct of a corrupt judge becomes the alter ego of the victim ward, and the sorry individual is left, homeless, helpless, friendless and segregated i for not only her/his savings but isolated without hope.
Taking the Sallas case as an example, the appointment of a guardian was done without any finding of facts and law by the Judge as to specifics required by statute. No matter, two guardians were appointed. One guardian recognized that its appointment was wrongful and resigned. No problem, a second guardian was appointed. case 07 P 5360. No matter, the beat went on. The 8 million dollars plus in assets saved by Mr. and Mrs. Sallas has all disappeared (even though there was no authority for any guardian to touch marital assets or the assets of Mr. Sallas. Mrs. Sallas is in a nursing home, toothless and with limited mobility. Her husband is homeless, and on charity. Their half million dollar valued home in Skokie, which in 2018 had a mortgage of about $175,000.00 is gone by foreclosure. Thanks to the Byline Bank and the Cook County public guardian without borrowing a dime, the debt grew by about $200,000.00 and was sold at a foreclosure suit.
Remedial legislation designed to protect people like Mr. and Mrs. Sallas were ignored — it seems that this elderly couple – in their 80’s signed commercial loan documents. Mrs. Sallas signature was an overt crime pursuant to 755 ILCS 5/11a – 22.
The actions of the guardian, the supervising judge, and the Byline Bank all (in my opinion) violated 720 ILCS 5/17 -56 – another remedial statute.
Not only has every attorney been intimidated by the Illinois Attorney Registration and Disciplinary Commission of the Illinois Supreme Court, but no law enforcement agency will enforce the statutes protecting the elderly. As an example, The CFPB is reported as informing Mr. Sallas that as he and his wife signed documents that were “commercial” the agency could not help them!!!!
The Byline Bank’s conduct herein is reprehensible – they and their “assignees” knowing that their conduct was REPREHENSIBLE had Dean Sallas thrown out of his home. Of course, the court and law enforcement are silent! Benign neglect would be a major step forward.THE FOREGOING IS ALL OLD HAT, BUT MR. & MRS. SALLAS ARE STILL CAPTIVES & STILL BEING DEPRIVED OF THEIR BASIC HUMAN RIGHTS! It is very frustrating knowing that there are statutory remedies but noting that they are all a facade. If a lawyer can be found who has the courage to assert the human rights of the designated victim of this heinous criminal conduct emanating right from the bench, the ILLINOIS ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION of the SUPREME COURT OF ILLINOIS will accuse the lawyer of lying et al and the lawyer will be granted a kangaroo trial and suspended from the practice of law. LAW ENFORCEMENT finds one excuse after another as to WHY enforcement of the law cannot occur to protect grandma and grandpa from the predators – thus, law enforcement is out to lunch!. The committee has GAO reports reporting this travesty and ignores them. So why did I send anything to the Committee? HOPE SPRING ETERNAL! I cannot believe that the government of the UNITED STATES OF AMERICA no longer gives a damn about its citizens and we no longer count! Certainly we do not count in Cook County, Illinois! I wonder why the government of Chicago/Cook County, Illinois even bothers with a vote for the mayor of Chicago?????
Ken Ditkowsky
On Thursday, March 9, 2023 at 03:25:55 PM CST, kenneth ditkowsky <kenditkowsky@yahoo.com> wrote:
Guardianship abuse is about as pervasive and venal as can be imagined. The only thing missing in the Sallas case are JACK BOOTS, and railway freight cares packed with people. Respect for the Rule of Law and the Constitutional protections of the 1st, 4th, 5th and 14th Amendments are in stark evidence. Statutory limitations are routinely ignored, and the miscreants are not shy in making it very clear that their object is not to assist the elderly who fall into their custody, but to exploit them.
The cries of Sallas, and Campasano to Judge Boliker are not only ignored but ridiculed. Albert Campasano 2021 P 3717 (Cook County, Illinois Circuit Court) is a veteran – on the one hand they thank for his service, and other the hand they deny him the very friends that he fought for – going so low as to take his sundry possessions and that of his wife. (Of course, they do not recognize his wife, or the limitations of 755 ILCS 5/11a – 3 b.) The credo – is Albert and Sophia have a few dollars – the dollars are better served in the pockets of *****,
Relative to Sallas 07 P 5360 (mortgage foreclosure 2019 CH 13960 on appeal as 1 – 22 -111, a draft of Dean Sallas brief to the Appellate Court of Illinois is instructive, to wit:
Introduction.
This is an Appeal from a Summary Judgment Order of foreclosure and Sale in direct derogation of current remedial legislation designed by the Illinois Legislature to abrogate Financial Elder Abuse of vulnerable citizens such as the elderly vulnerable defendants herein, i.e. Dean Sallas (age 85) and Amelia Sallas (approx. age 80) who were married for more than ½ a century. (see 720 ILCS 5/17 -56)
This particular appeal is unique in that.”
1. The complaint C 24 filed herein, and the record in general appears to be devoid of any averment of any assignment of the security agreement sought to be foreclosed to the initial plaintiff Byline Bank. It is therefore respectfully suggested that the Byline Bank has no standing to bring this foreclosure suit.
2. That the Guardian appointed for Mrs. Sallas is a fiduciary who breached his relationship toward Mrs. Sallas in that he did not raise as a defense the Financial Elder Abuse protective statutes 720 ILCS 5/17 -56 and in particular to this foreclosure proceeding, did not raise a defense the fact the 755 ILCS 5/11a – 22 voids any attempt by the holder of an agreement signed by such a person as Mrs. Sallas to foreclosure or otherwise collect on an obligation evidenced by a document signed in violation of the said section 22. Mrs. Sallas, is a necessary party to this foreclosure action – however pursuant to the aforesaid 755 ILCS 5/11a – 22
3. That as part of the Motion for Summary Judgment C 485 , the plaintiff presents a Petition presented by the Guardian in case 07 P 5360, entitled in Re: Amelia Sallas C 371 wherein the Guardian for Mrs. Sallas appears to make some serious omission of fact and law. In particular, knowing that 755 ILCS 5/11a – 22 as violated by Byline Bank on January 25, 2018 the Guardian makes no mention of said fact. Instead the Guardian requests the Court for permission to enter into the very wrongful and ultra vires contract voided Section 22 and most importantly – a criminal offense for Byline Bank to enter into. (It is respectfully submitted that this action by the Guardian, appearing to be represented by the Byline Bank as attornment to the crime by the Court invokes the Himmel case and 18 USCA 4 reporting to law enforcement requirements.
4. That without a scintilla of proof as to either the Standing of the plaintiff to pursue this foreclosure, or mesne debts appearing to have been long abandoned by 3rd persons, the plaintiff was not only allowed to have such stranger debts added to the judgment, but to do so by a Summary Judgment entered prior to the defendant Sallas having an opportunity to take discovery, or file defenses and counterclaims to the instant foreclosure complaint objected to.
5. That without any indication that the plaintiff made any disclosures required by Federal and States law C 27, the balance due as of the date of the alleged default was set $152,607.00, but the judgment for more than $200,000 in excess. Note: The initial principal balance due when Mr. and Mrs. Signed the loan documents to be $173, 366 (C67) dated January 25, 2018.[1] .
Notwithstanding a continuing objection as to the standing of the Byline Bank to bring this foreclosure action herein, this commercial loan document was signed by both Mr. and Mrs. Sallas on January 25, 2018. And the said agreement appears of record as exhibit H attached to the complaint filed herein (C24) Stripped to its primary issue and concern, this appeal raises the pressing issue of whether or not the Chancery (Equity) Division of the trial court attorns to and countenances the Financial Elder Abuse clearly barred by its own rules, 755 ILCS 5/11a – 22, and 720 ILCS 5/17 – 56.
The casual deceptions of the Byline Bank et al herein, not only as to the initial service of process on Dean Sallas (C201 ), the Petition of February 15, 2018 (C371 ), amounts due and owing C636, omission of assignment by Plaza Bank to Byline Bank , affidavit of Attorney fees C 727, casual characterization of predatory mortgage as a legitimate loan arrangement rather rank FINANCIAL ELDER ABUSE of the most predatory nature, cannot be tolerated. The commercial loan aside the efficacy of the Judicial system required pursuant to Article 1 Section 12 of the Illinois Constitution is challenged by disrespect for integrity, decency, and honor by the decisions in this case and the EVICTION from his home of Dean Sallas. Allowing such predation as renders Sallas homeless and vulnerable and denies him his human and vested civil rights.
The instant appeal is distinguishable from most appeals that are brought to this Court as the Appellant, Dean Sallas, is not only pro se, but elderly (age 85) l Mr. Sallas’ wife (and codefendant) has become a victim of a predatory guardianship, wrongful isolation, and worse. Sallas’ Constitutional Rights have been overtly and repeatedly violated, and it is respectfully suggested that Mrs. Sallas’ Court appointed Guardian in these proceedings abdicated the responsibility he claims. (see Petition of Feb 15, 2018 (c ) See also Wambaugh vs. Parson .
Pursuant to the criteria of the Himmel decision, the clear words of the 14th Amendment to the United States Constitution and the statute that provides for appointing a guardian, i.e. 755 ILCS 5/11a – 3, this Court is placed on notice that the plenary Guardian’s appointment and assignment are severely limited solely to the property vested solely of Mrs. Sallas but not to any property of Mr. Sallas, including but not limited to his interest in the marital property of the parties. The Guardian is not appointed to be the alter-ego of Mrs. Sallas and his appointment gives him no jurisdiction concerning either Appellant Dean Sallas or Sallas’ property interests. In fact the Guardian’s “power” is severely limited to acts specifically granted in the statute of those only to the extent that said ‘powers’ are 1) reasonable, 2) necessary and 3 benefit the individual who is designated his ward.
That said, the Guardian is a fiduciary, and he owes to Mrs. Sallas the highest brand of fidelity, integrity, and honesty possible. 755 ILCS 5/11a- 3 and the 1st, 4th,5th, and 14th Amendment to the United States Constitution further embellish define and limit the guardian’s responsibility. In a similar manner, this Court is placed upon notice that the affidavits submitted to the Court by the Attorney’s for the Byline Bank praying for a reimbursement of attorney fees for their client are patently absurd – and this Court on the record substantially reduced the claim for attorney fees.
The Appellant respectfully suggests that he at 85 years of age, and his wife at years of age are classic victims of Financial Elder Abuse perpetrated in the Circuit Court of Cook County, Illinois.
Issue 1. Do statutory and common law protections against abusive and predatory lending practices have meaning in Foreclosure of Mortgage proceedings.
Issue 2. What are the criteria for the entry of Summary Judgment. In particular can Summary Judgment be entered while there is pending a Motion to Dismiss filed by plaintiff and prior to the defendant being given an opportunity to do discovery, file counterclaims or defenses to the pleadings of the plaintiff.
Issue 3. Does the Court in a home mortgage foreclosure have to protect senior citizens from clear abuse by lenders. In simple terms do the hallowed principles of Equity and Justice apply.
STATEMENT OF FACTS
That essential parties to this case are:
1) Appellant, Dean Sallas. He is the spouse of Amelia Sallas for more than ½ a century. Mr. and Mrs. Sallas are the homeowners of the property subject to the Byline Bank foreclosure action herein.
2) Mrs. Amelia Sallas In the related cases of In re: Amelia Sallas 07 P 5360 the Circuit Court of Cook County on******* entered an order finding the Amelia Sallas as a disabled person and in need of a Guardian of her person and her property. Both Mr. and Mrs. Sallas resided in the “property” under foreclosure until approximately ( C ) .
3) Byline Bank (and is claimed assignees). The plaintiff herein. (NB. Without evidence being submitted the appellant of a proper assignment of the collateral from the initial lender to the Byline Bank, defendant does not concede the Byline Bank has standing to bring this foreclosure).
4) The Cook County Public Guardian. Mr. Golbert was appointed plenary guardian for Mrs. Sallas after a series of mesne transactions and appointments.
On January 25, 2018 the Byline Bank, being fully aware of the prohibitions of 755 ILCS 5/11a – 22 in derogation of the statutory prohibition demanded and obtained the signature of both Mr. Dean Sallas, and Mrs. Amelia Sallas on a Commercial loan document connoting that the signatories owed the Byline Bank the sum of $$173, 366dollars and was required to repay to the Byline Bank that sum at the rate of dollars per month at an interest rate of %. This loan was secured by the borrower’s home. (C 67) This document is the basic document upon which this collection action is based. A prior security agreement in favor of a stranger to these proceedings is sought to be foreclosed.
On January 25, 2018, all parties knew that amongst the Illinois Statutes was 755 ILCS 5/11a – 22. In words and phrases section 22 states:
(755 ILCS 5/11a-22)(from Ch. 110 1/2, par. 11a-22) Sec. 11a-22. Trade and contracts with a person with a disability.
(a) Anyone who by trading with, bartering, gaming or any other device, wrongfully possesses himself of any property of a person known to be a person with a disability commits a Class A misdemeanor. (b) Every note, bill, bond or other contract by any person for whom a plenary guardian has been appointed or who is adjudged to be unable to socontract is void as against that person and his estate, but a person making a contract with the person so adjudged is bound thereby. (Source: P.A. 99-143, eff. 7-27-15.)
On February 15, 2018 it appears of record in the plaintiff/appellee’s MOTION FOR SUMMARY JUDGMENT and in case 07 P 5360 (C 371) that the Cook County Guardian (the plenary guardian appointed to protect Amy Sallas) appeared before Judge Boliker by petition dated said date to seek to authorization execute commercial loan documents noted supra and appearing as exhibit H attached to the complaint. Dishonestly, the Guardian’s petition to the Court and presentation did not disclose that on January 25, 2018, the Byline Bank had in direct violation of 755 ILCS 5/11a – 22 had obtained the signature of his ward. Mrs. Amy Sallas, the wife of the Appellant. [N.B The Guardian, having a duty of disclosure to the Court, and a fiduciary duty to Mrs. Sallas, did not inform the Court that the actions of the Byline Bank were a serious violation of the law prohibited by 755 ILCS 5/11a – 22 and the Financial Elder Abuse Statutes. The Petition submitted in words and phrases asked for permission for Guardian to sign the Byline Bank papers. (c371)]
Subsequently, by a series of mesne transactions the Guardian removed from the marital funds of Mr. and Mrs. Sallas approximately $40,000.00 and according to the Summary Judgement documents (c 377 )paid the same over to the Byline Bank apparently reducing the balance due to about approximately $153,000.
The Byline Bank on or about filed this foreclosure suit on or about . On or about a Motion to Quash to false return of summons on Dean Sallas was filed, C . and granted on C .[2] On Dean Sallas filed a MOTION TO DISMISS C .on raising the issues of unclean hands, and pointing out the irregularities in this proceeding. This Motion was denied on .C .
The Counter to the defendant’s Motion to Dismiss was a Motion for Summary Judgment.C . Even though prior to the ability of the defendant to take discovery, asset defenses, answer the complaint, the trial court on . in the Amount of total sum of dollars granted the motion and ordered the foreclosure sale of the subject real estate.C . This Summary Judgment order accepted affidavits from the Byline Bank that were in conflict with the actions and or demeanor of the Byline Bank and in the case of the claim for attorneys overtly absurd. (NB. The full claim for attorney fees of approximately $41,000.00 was rejected by the court but $ of attorney fees was granted for the proceeding not out of the discovery stage.C , C )
On or about , the Byline Bank successfully petitioned to the trial court for leave to the Court for the Court to recognize an assignment of interest to and the change the name of the case eliminating the Byline Bank from the title C .. Sallas protested that such would bar him from asserting any counterclaimsC or affirmative defenses he might have against the Byline Bank. The Court on entered an order that in words and phrases C stated:
A judicial sale was held on , the sum $ was bid, This sale was confirmed on , and on C the defendant Dean Sallas filed his notice of Appeal.
N.B. At all-time relevant the title to the subject real estate is vested (though a land trust arrangement) as the marital property of both Amelia Sallas and Dean Sallas. A search of case 07 P 5360 does not indicate that at any time the Guardian appointed for Mrs. Sallas (Amelia)or any other person or entity was granted a quit claim deed or other conveyance of Mrs. Sallas marital interest in her home. [3]
ARGUMENT
The appellant Dean Sallas (age 85) is pro-se and apologizes in advance as to his lack of legal skills and any deficiencies in his presentation or brief.
APPELLANT & HIS SPOUSE AS SENIOR CITIZENS, WHO HAVE BEEN MARRIED FOR MORE THAN ½ A CENTURY, AND WHO ARE BOTH AGED 80 PLUS ARE ENTITLED TO NOT ONLY THEIR 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION RIGHTS, BUT THE REMEDIAL PROTECTIONS AFFORED THE TO VULNERABLE SENIOR CITIZENS. AND THE APPLICATION OF THE HISTORICAL PRINCIPLES OF EQUITY
Illinois in Article 1 Section 12 of its CONSTITUTION of 1970 states:
SECTION 12. RIGHT TO REMEDY AND JUSTICE
Every person shall find a certain remedy in the laws for
all injuries and wrongs which he receives to his person,
privacy, property or reputation. He shall obtain justice by
law, freely, completely, and promptly.
A foreclosure action, such as the instant action is an Equity/Chancery action and addresses the issues to the conscience of the sovereign and thus requires parties seeking relief to not only do equity, but to come to the Court with ‘clean hands.’
The Appellee (Byline Bank) demonstrates a callous disregard for these principles in the ‘key document’ required by this foreclosure – the loan document. This loan document was executed by the Byline Bank and Amelia Sallas in direct violation of 755 ILCS 5/11a – 22 which in clearly obviates the right to a Foreclosure. The statute stating.
(755 ILCS 5/11a-22) (from Ch. 110 1/2, par. 11a-22) Sec. 11a-22. Trade and contracts with a person with a disability. (a) Anyone who by trading with, bartering, gaming or any other device, wrongfully possesses himself of any property of a person known to be a person with a disability commits a Class A misdemeanor. (b) Every note, bill, bond or other contract by any person for whom a plenary guardian has been appointed or who is adjudged to be unable to so contract is void as against that person and his estate, but a person making a contract with the person so adjudged is bound thereby. (Source: P.A. 99-143, eff. 7-27-15.)
The total record herein including but not limited thereto the MOTION FOR SUMMARY JUDGMENT clearly indicates that Mrs. Sallas, a necessary party to any foreclosure action concerning her home, was adjudicated a disabled person, and a Guardian was appointed to protect her personal interests. A clear criminal violation of section 22 occurred on January 25, 2018 that cannot be swept under the rug, or buried with a multitude of copies of documents such as filed herein by the Byline Bank.
The record is devoid of any mitigating circumstances that might obviate the enforcement of State and Federal financial elder abuse legislative protections or justify the Circuit Court in ignoring its own heritage and core principles.
Indeed, the case of In re: Neprozatis , makes it very clear that in Illinois Equity Courts if it looks like a duck, swims like a duck, has feathers like a duck it is indeed a duck. Indeed, 720 ILCS 5/17- 56 similarly decrees that entities that have the ability to subject an individual to Financial Elder Abuse are not under Illinois law free to use the facilities of Illinois Courts to do so. That statute renders such persons not only subject to triple damages and attorney’s fees, but the burden of proof is reduced from clear and convincing to preponderance of the evidence.
The case Wambaugh vs. Parsons , addresses the fiduciary duty of a guardian. The case is relevant along with Struck vs. Cook County Public Guardian , tolay emphasis upon the fact that the Court (i.e. the Circuit Court of Cook County, and the judicial establishment recognizes that a guardianship is a ‘thin ice’ situation as in a parens patrie matter requires strict integrity, decency, and statutory compliance so as to not infringe of the basic protections of the Federal Constitution, the Illinois Constitution and most importantly the 14th Amendment. A Guardian’s power is thus severely limited solely to his specifically published grant (published in the order of appointment and the findings of fact and conclusions of law required by 755 ILCS 5/11a – 3) and actions that are 1) reasonable, 2) necessary, and 3) benefit the word. It is respectfully suggested that the record herein and in case 07 P 5360 suggest that all the protective criteria were vitiated and ignored. (Judicial notice of this Court’s records and case 07 P 5360 is requested in the interest of justice).
The Summary Judgment order entered herein is particularly offensive to not only the origins, and principles, of Equity, but Article 1, Section 12 of the Illinois Constitution, but Amendment 14 of the United States Constitution. A litigant seeking the equitable relief of a foreclosure cannot engage in FINANCIAL ELDER ABUSE or deal inappropriately with senior citizens. Indeed, the grant of Summary Judgment not only ignores statutory prohibitions, but even basic concepts that even lay litigants are aware.
In particular, how is the Byline Bank even before this Court to file a foreclosure action. An examination of the documents filed by the Byline Bank does not include an assignment, quit claim deed, or other evidence of a conveyance of the Security Interest from the original holder of the Mortgage (Plaza Bank) to Byline Bank). Byline Bank may have some relationship with other creditors of Mr. Sallas, but proxy litigation is not appropriate for a court of equity.
Indeed, the Motion for Summary Judgment filed by the Byline Bank/appellee is replete with documents that connote AND emphasize the plaintiff’s ‘lack of doing equity, unclean hands, criminal conduct’ and serious conduct that raises serious concerns. The clear unequivocal violation of 755 ILCS 5/11a – 22), and 720 ILCS 5/17 -56 cannot be ignored or swept under the Rug. Both statutes are remedial and intended to address the very concerns that are raised in these proceedings.
Further, even though the HIMMEL decision is ignored in these FINANCIAL ELDER ABUSE cases the totality of the legislation enacted at both the State and Federal level manifests a demand that the elderly’s 14th Amendment protections not be trampled on by institutions such are noted herein.
The disclosure rules and ordinances enacted both at the Federal and State level that address loans to senior citizens and other vulnerable people are more than words on paper. They are intended to be strictly enforced, even if a Byline Bank, or a Court Appointed Guardian would be embarrassed or lose money. The spectacle created by the calculation of the alleged balance due illustrated the point. As the Guardian (Mr. Golbert) has never been specifically authorized to address any asset of Appellant Dean Sallas (including his marital property interests) serious questions of ultra vires conduct (as well as criminal contempt of court questions) are raised by the February 15, 2018 petition. These questions and the comments made by the Byline Bank in support of its MOTION FOR SUMMARY JUDGMENT suggest some serious conspiratorial action.
On January 25, 2018 the contract that violated 755 ILCS 5/11a – 22 was signed. This contract was attached to the complaint as the first 3 pages of exhibit H. It is respectfully submitted that the claimed balance due to the Byline Bank was approximately $175,000.00. There was no mention of any sundry secret judgments outstanding etc. In fact the Guardian’s February 15, 2018 petition to Judge Boliker similarly made no mention of such a judgment. Protection of Debtors under law require such items to be disclosed when the documents are signed.
Thus, the Byline Bank /Cook County Public Guardian pattern continues unabated in the lower Court. Mr. and Mrs. Sallas are elderly and vulnerable – ergo, being a bit disrespectful, it is the position of the defendant/appellant that the trial court ruled that if remedial legislation designed to protect against FINANCIAL ELDER ABUSE interferes with the whim and caprice of the Byline Bank & Guardian the said legislation not only can be ignored, but the objecting elderly are silenced![4]
Without discovery, the appellant/defendant has not had the ability to make inquiry as to what if any attunements, special dispensations et al may have been facing him in these proceedings. It is apparent now that the appellant pursuant to the provision of 720 ILCS 5/17 – 56, the appellant might have a serious counterclaim against not only the Byline Bank, but others involved in the trial court proceedings. Section 56 may not come with the hype of a RIC0 action, but not only does this remedial legislation connote a legislative intent that the FINANCIAL ELDER ABUSERS face criminal charges, but on the Civil side the award to be assessed is Triple Damages, plus Attorney fees. So serious was the Illinois Legislature that this remedial legislation be readily available, that it also lowered the Standard of Proof to preponderance of the Evidence.
The appellee is not paranoid in suggesting some sort of attornment or special dispensation by Judge Boliker in approving the Guardian obfuscating a criminal action perpetrated against its ward. He cannot understand Judge Boliker and/or Judge Robles did not forward to Law enforcement a referral in this instant case. It is respectfully suggested that the totality of the facts memorialized in the record herein are a cogent example of FINANCIAL ELDER ABUSE barred by Illinois Statutes, and so corrosive to the core values of America that not only must the Summary Judgment be reversed, but a referral to Law enforcement must be made. 18 USCA 4 demands the same.
The demand of the appellant for a referral is not taken lightly. Indeed, it is respectfully submitted that no making such a request would a measure of disrespect by the appellant for himself, but the Justice system. The calculation of loan balances demands the same. No Court can, in my opinion, garner the respect that is demanded to do its job and accept the calculation of a creditor that commences with a initial loan balance on January 25, 2018 and ends two years later after the payment of approximately $20,000 with a new balance of approximately $200,000 more than the initial debt
With all due respect, the Appellant suggests that the concept of EQUAL PROTECTION OF THE LAW as defined by centuries of English and America Equity law cannot tolerate the conduct disclosed by the Byline Bank in this foreclosure suit toward an elderly couple i.e., Dean Sallas and Amelia Sallas. The Summary Judgment of foreclosure and the subsequent orders of Court approving the “sale” of the home of Mr. and Mrs. Sallas must be reversed and rendered for nought.
2.
WHEN A PARTY FILES A MOTION FOR SUMMARY JUDGMENT, THAT PARTY TO SUCEED IN HIS MOTION MUST MEET THE CRITERION OF TAKING THE FACTS IN THE LIGHT MOST FAVORABLE TO THE NON=MOVING PARTY THERE IS NOT A CHANCE IN HELL THAT THE NON-MOVING PARTY CAN PREVAIL.
The Judicial system of the State Court is the ‘escape value’ of society and thus the Court system must not only be held to the standard of “Caesar’s wife” but, in fact be free of bias, favoritism, and even the appearance of corruption. Thus, if a citizen is to be denied his right to a trial on the merits by a ‘short cut’ procedure of Summary Judgment the proof of liability cannot be tinged by obvious exaggerated claims for attorney fees, obvious breaches of fiduciary relationship, misleading petitions such as the February 15, 201
It is always interesting to see what entities accept a particular e-mail on a particular subject and where the e-mail does not reach the entity to which it is sent.
Indeed, some of the addresses are old, some are copied wrong etc — On Government e-mail addresses I usually go with the flow and send the -e mails to the address that I was given or that pops up on the computer.
Apparently, a nerve has been hit – I was a little more careless than usual on my last e-mail to you – a bunch of what I thought to be dead e=mail addresses actually appear to have received the e-mail.
The last time this happened was just before the Britney Spears case exploded. (That was the guardian case where this young woman was given a plenary guardian even though she negotiated and performed multi=million dollar contracts! Her obvious incompetency was in NOT protesting more vigorously that her 1st, 4th, 5th and 14th Amendment Rights were violated by The California Courts.
Using the criteria of Spears, anyone at random can be Guardianized. Indeed, in your parents situation that is exactly what has happened.
Methinks that the overt violence in our cities across America may be bringing BIG GOVERNMENT to the realization that our Courts are THE EXCEPT VALUE OF OUR SOCIETY and the lesson that they are teaching is that Anarchy is the wave of the future. DEMONIZATION of your enemies (or perceived enemies) is the norm — GRANDMA is no longer is a favored person in the Little Red Riding Hood story – it is the wolf!
The guardian is doing a public service in today’s “world” He according to current narrative – he is eliminating the elderly so as to make more room for the next crop of oldsters. He is also sharing the wealth!! (Especially with the courthouse criminals! – Judge **** has at least one child to support, and a Byline Bank loan her husband was given to pay off!! – Judge ***** Amy and Dean Sallas are old! The Guardian and judge arranging for burial of Amy Sallas are doing a public service!!! That public service may violate both the Federal and the State Constitution – but – what the H*** – those are outdated documents anyhow. The credo is printed on the back of the dollar bill, to wit: IN JUdge **** we trust!!! (God is also old!)
RE: Knox County Case No. 22 PR 12 and 21 MR 21 –Estate of Fred Stegall SEEKING INFORMATION ON KNOX COUNTY COURT CORRUPTION
Dear Sacred Heart Church
I am the Executive Director of Justice 4 Every1, Not for Profit. I run and manage blogs (www.justice4every1.com and http://www.marygsykes.com) regarding corrupt and abusive guardianships in Chicago and in Illinois and nationwide. There are more than 1600 posts on those blogs about corruption in the courts and horrific abuse of the elderly in Guardianship and then their Estates are looted by attorneys and others in decedent’s estates and these blogs are extremely popular with over 300 hits per day. We are currently seeking information on court corruption in Knox County and in particular in the above case which involves the Fred Stegall Estate. Mr. Stegall unfortunately passed away in January 2022, leaving over 150 acres of farm and timberland, to Tonny and Penny Williamson, two elderly Christian women who cared for Fred Stegall in his final days and spent at least $115,000 to care for him, because his court appointed guardian Curtis Ford and his Guardian ad Litem appointed by Judge Radmussen refused to give Fred Stegall a dime in living expenses for over one year– food, clothing and utilities, despite the fact that Fred Stegall had some $500,000+ in his bank accounts. Instead, over $50,000 went to court appointed lawyers to drain his estate. This, unfortunately is not uncommon in Probate, and in particular, Guardianship cases where the motto is: target, narcotize to guardianize, drain the estate, and when the money runs out, narcotize the elderly person to death and quickly bury the victim to destroy all traces of evidence the person was abused and drugged. Anyone over age 50 can fall a victim to our nation’s thousands of probate courts. It is estimated that at any time, some 1.5 million elderly and disabled persons are locked into expensive guardianship proceedings where Estates are billed at rates from $300 to $400+ per hour, which typically drains the Estate quickly and the victim is typically left penniless and on medicaid and food stamps. In one guardianship case in Cook County, Lorraine Phillips, she was in a guardianship for 5 years and attorneys Franciszkowicz and Martin billed her $4 million estate $1 million in attorney’s fees. The Illinois appellate court apparently thought this was okay, because they never overturned those excessive attorneys fees. In Mr. Stegall’s case, he was left to die in a nursing home and if his friends had not diligently searched and found him, he would have died alone. The Guardian and court appointede Guardian ad Litem (both Illinois licensed attorneys) never told Mr. Stegall’s friends he had been taken by ambulance to a hospital and then a nursing home. All Mr. Stegall’s friends had to figure out where he was and how he had been taken when they abruptly found him missing one day. The Fred Stegall cases have been rocked with controversy and terrible problems. And as a reporter for these blogs I personally have a number of questions: 1. Why is the Diocese of Peoria suing the Williamsons for their dear friend’s farm and timber land? When did churches start suing people to take their land? I personally have been involved with Christian churches for decades and I have never heard of a Christian Church suing an Estate, getting involved in any dispute in an Estate and trying to take farm and timberland from their friends and neighbors. 2. Why did the court and Judge Curtis Lane block all discovery requested by the Williamsons, rush quickly to trial, and why did attorneys Paul Mangieri and John W. Robertson file suit against the Williamsons over this farmland when Fred Stegall made it repeatedly known that he did not want to sue the Williamsons and that James Blake was not his attorney and had never been his attorney? 3. Why did Father Lee Brokaw take the witness stand a few days ago and tell the following lies? a. that Fred attended weekly mass without fail (when Fred did not attend weekly mass all the time, that he depended upon someone driving him since fall of 2020, and b) then his church, Abingdon Church was closed for over a year during Covid, and then c) Brokaw was not even the pastor there, so how would he know?) Father Brokaw was not the priest for Fred Stegall and rarely if ever saw him. All good questions. 4. Why is attorney John Robertson standing in the court hallways and telling witnesses that the Williamsons are “crooks and scam artists?” When in fact these are good, kind Christian ladies who took care of 95 year old Fred Stegall for over a year in his final days and spent over $115,000 on his care when the Guardian ad Litem and Guardian of the Person and court would not give him a dime for living expenses and necessaries? 5. Why did Father Lee Brokaw provide false testimony to the court that the Williamsons prevented him from giving Fred Stegall last rites when in fact they had no control over that. At the time of his death he was in a Guardianship and only his Guardian ad Litem and court appointed Guardian (Curtis Ford and Patrick Egan) who could have done that. The Williamsons actually drove Fred to Catholic Church numerous times when he was too frail to drive himself. But the bigger question is why is the Catholic Church and the Diocese of Peoria getting involved in Estates to try to take land from citizens via contested and expensive probate proceedings. If you have any information on this case and why the proceedings are so very strange and troublesome I would greatly appreciate hearing from you. I am a reporter for two popular blogs on court corruption and you may provide me with statements “off record” and I would keep everything in confidence. (Illinois does in fact have a “reporter’s privilege law”) It’s time to clean up the court system in Illinois, and I and other concerned citizens would greatly appreciate your help in doing so. Remember that the greatest cure for corruption is always sunshine which is a tremendous cure for corruption. If you have any information about this case or Judge Lane or Attorneys Paul Mangieri or John Robertson, I would greatly appreciate your bringing this information to my attention so that justice may be done. You are welcome to call, fax or email me with the information and it will be kept in confidence. If you call me, please email or text me first so I know you are a real person and not a robo call or spammer. And please pray for these dear, kind ladies that justice may be done. Thank you. Sincerely, Joanne Denison Executive Director, Justice 4 Every1, NFP Blogger and dedicated to accountability in the courts
Ms. Clair is formerly of Des Plaines, Illinois. She lived in a trailer park. She was wrongfully evicted from a trailer park there while she was in a nursing home for 2 years. She is currently in the hospital in ICU and is not expected to live throughout the night.
Her attorney has been handling her affairs but is now looking for friends and family who would like to attend Ms. Clair’s funeral and pay their last respects. We know of zero friends and family right now, but we do want to get the word out and give her a nice funeral.
Please contact me at joanne@justice4every1.com if you or someone you know may be interested in attending her funeral. It will be at Concord Funeral Home in Chicago, IL on Cicero avenue most likely next weekend. Light a candle and say a prayer for her. She was homeless, but the homeless deserve friends and love too.
ALBANY — State Attorney General Letitia James on Tuesday sued the Fulton Commons Care Center nursing home in East Meadow, accusing its operators of a “toxic culture of deceit” that used public money to pad the payroll for relatives and a “heinous record of resident abuse.”
The lawsuit also accuses the facility of knowingly underreporting deaths from the COVID-19 virus by as much as 45% while avoiding scrutiny by making robocalls to family members that said the facility “was free from COVID-19.”
The attorney general’s office filed the lawsuit Tuesday to force changes in the operation of the nursing home, but to keep the facility open, a spokeswoman said.
“Fulton Commons failed its residents and denied them the basic right of receiving comfortable, competent, and respectful care at the facility entrusted to serve them,” James said. “Rather than honor their legal duty to ensure the highest possible quality of life for the residents in their care, the Fulton Commons owners cut funding for staffing so they could take more money for their own personal gain. These actions led to a devastating pattern of resident abuse, neglect, and mistreatment.”
The nursing home referred a request for comment to Cathie Doyle, who had been the nursing home administrator. The attorney general’s office said Doyle left the job Nov. 16.
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The lawsuit accuses the owner, Moshe Kalter, and several relatives and operators of related companies of “a fraudulent scheme that led to insufficient staffing levels, significant resident neglect, mistreatment, and abuse.”
The lawsuit’s accusations of financial fraud include:
Using $34.4 million to pay “inflated” rent to one its shell companies.
Inappropriately paying $14.9 million to the operators from Medicare and Meidcaid funds and failing to disclose it to the state Health Department.
Paying more than $1 million from 2018 through 2021 to the owner’s eight adult children, who were 1% owners of Fulton Commons. In 2018 alone, the adult children were paid $410,875 in salaries on no-show jobs that James contends would equal the cost of 10,000 additional hours of direct care to residents.
Accusations of resident abuse and neglect include:
Sexual assault.
Repeatedly losing track of residents because they weren’t supervised.
Unanswered bells and cries for help.
Unexplained bruising, cuts and other injuries.
Missed medical treatments.
Unchanged underwear and missed trips to restrooms.
Illegal restraint of residents in beds or wheelchairs and by drugs.
The subjects of the accusations named in the lawsuit include principal owner Kalter, his wife, Frady Kalter; her brother, Aaron Fogel, and his wife, Esther Fogel. Also named in the lawsuit are the Kalter’s eight adult children: Mindy Steger, Sheindy Saffer, Chana Kanarek, Dovid Kalter, Yitzchok Kalter, Aryeh Kalter, Sheva Treff, and Chaya “Sara” Lieberman; Kalter’s nephew Steven Weiss, Fulton Commons’ comptroller; and Doyle.
The lawsuit seeks to replace the nursing home’s medical director, prohibit admission of more residents until staffing meets appropriate standards, install financial and health care monitors at the owner’s expense, force the owner and others who benefited from the alleged scheme to repay the money, and require them to reimburse the state for cost of the investigation.
Long Islanders whose loved ones were patients at Fulton Commons, both during and prior to the pandemic, recalled a facility that they said was wholly understaffed and failed to provide the most basic care to residents.
“It was a house of horrors for older people,” said Mary McKenna of Bellmore. Her aunt, Eileen Turansky, died at Fulton Commons in 2014 after months of alleged abuse and mistreatment at the facility.
“They failed in every level of responsibility,” said Meri Danenza of East Meadow. She unsuccessfully had tried to get her mother, Edith Kessler, moved out of Fulton Commons early in the COVID-19 pandemic.
Kessler died at Fulton Commons on April 2, 2020, and Danenza said doctors at the facility told the family her mother had COVID-19. “They didn’t call us when she was getting worse,” Danenza said. ” … They didn’t do anything.”
In 2020, family members whose loved ones lived and died at Fulton Commons formed a Facebook group to share their stories. The group has more than 250 members.
Last week, the attorney general’s office announced the indictment of a former licensed practical nurse at the nursing home who was accused of sexual abuse of a resident in 2020 and a former director of nursing was indicted on charges of failing to report the abuse.
I sincerely hope that Letitia James will be able to clean up the nursing home business and get many of these elderly residents back home with in home care.
FBI mole Terrence Hake (pictured in 1994) was to have been the central figure in a movie about Operation Greylord.
A film called “Crook County,” about a real-life corruption sting in Chicago, was announced with some fanfare in 2017 but never actually got made. On Monday, its executive producer explained why.
“We weren’t able to get financing for it. We tried and tried,” said Adam McKay, the former Chicagoan who directed “The Big Short” and “Vice.”
“Crook County” was to have detailed a 1980s sting that put Cook County judges and other public officials behind bars. “Operation Greylord” was named after a racehorse agents found while flipping through the Sun-Times sports section, according to “Operation Greylord,” a book co-authored by FBI mole Terrence Hake.
“Operation Greylord” resulted in the indictment of 48 lawyers, eight police officers, 17 judges (15 convicted), 10 deputy sheriffs, and a state senator.
Actor Emory Cohen (“Brooklyn”) was scheduled to star as Hake, who posed first as a dishonest prosecutor and later as an unethical defense attorney in the investigation.
The husband-wife team of Aron Gaudet and Gita Pullapilly wrote the film and were set to direct. “They had a wonderful script that was ready to go — we just couldn’t quite get the dough for it,” McKay said.
Adam McKay says the proposed film about a 1980s Chicago corruption case is “still a project that I just love and love.”
McKay holds out hope that Gaudet and Pullapilly will find the funding necessary to make the film a reality.
“But you know the way it works with these movies, they’re never done,” says McKay. “It doesn’t mean we’re never going to make it, but at that time it was very hard to get it made. … But, man, I love that story — it’s so incredible. This is still a project that I just love and love.”
In the meantime, the Second City alumnus and Academy Award-winning screenwriter and producer stays busy as the host and producer of “Death at the Wing,” a narrative podcast detailing the nuances surrounding the tragic deaths of hoops phenoms.
McKay is also is the executive producer of several HBO projects, including the series “Succession,” the documentary “Q: Into the Storm” and an upcoming limited series detailing the 1980s “Showtime” era of the Lakers.
He directed the upcoming “Don’t Look Up,” starring Jennifer Lawrence and Leonardo DiCaprio as astronomers trying to convince the world that an asteroid is about to destroy the planet.
A woman who was put into a facility by a government agency was given monthly injections of anti-psychotics and suffered shocking neglect over seven years but received just one visit from the agency during that time, the disability royal commission has heard.
Key points:
A man told the commission he was shocked by his mother’s condition while under care
About 50,000 Australians are under the control of the state guardians and trustees because they have been deemed to be lacking capacity
The disability royal commission will spend the rest of the week hearing evidence from across the country
The First Nations woman, who cannot be named because of strict gag laws in Western Australia, was part of the Stolen Generations and later told her son the facility reminded her of the institutions she had grown up in.
Her son, who was given the pseudonym Anthony, told the commission on Tuesday he was shocked by his mother’s physical and mental condition while under the care of the Office of the Public Advocate in Western Australia and that she and the other residents appeared in a catatonic state.
In a statement, he said he remembered going to visit her and finding her in her pyjamas “and often they were dirty with faeces, urine and menstrual blood”.
“Her eyes would be quite open and she looked like she was on drugs,” he said.
Five years later when her son managed to take back control of her medical decisions and she was weaned off the medication, she told him she had suffered verbal, physical and sexual assaults at the facility.
“I can confidently say that my mother was in a worse state at the end of the Public’s Advocate’s control over her than when she first came to be subject of orders,” his statement said.
“She has not been afforded basic human dignity.
“Her cultural needs were not met”.
When he took his mother, who was in her late 40s at the time, to a dentist, he said her teeth were black and they had to be extracted and replaced with dentures.
In her entire time at the hostel, she had never been taken to a dentist.
She also had hepatitis and developed diabetes but neither condition was treated.
In a statement, Anthony said he and his mother rang the guardian at the Office of the Public Advocate, and asked for her to be moved elsewhere but he said she did not have enough money.
He said he saw the guardian hang up on his mother and she told him “that he hangs up on her often”.
Anthony believed the guardian had never visited his mother.
“I said to her, ‘Do you know what he looks like? He controls your life,’ and she’s like, ‘No, I don’t.’ How culturally insensitive is that?”
WA’s Public Advocate Pauline Bagdonvicius said someone from her office did visit his mother once during the seven-year period.
She told the royal commission “the lack of contact and engagement in the appropriate way … by our office is regrettable”.
There are an estimated 50,000 Australians under the control of the state guardians and trustees because they’ve been deemed to be lacking capacity due to cognitive issues like dementia, intellectual disabilities, and mental illness.
This happens when applications by family, social workers or doctors are made to civil and administrative tribunals in each state and territory.
They can appoint public guardians and trustees who make decisions about where the person lives, what medical treatment they receive and how much of their own money they are allocated.
The woman, who has a cognitive impairment, was living with her son when he took her to get a disability pension in 2015.
She was assessed by a psychiatrist and months later she was told she had to attend the State Administrative Tribunal after an application by a social worker.
The tribunal appointed the Public Advocate to look after her accommodation and health needs and she was moved from her son’s home to a hostel chosen by the Public Advocate’s office.
Meanwhile, the Public Trustee was appointed to look after her finances.
From her own pension, Anthony said his mother received just $10 a week as spending money.
“I was told that my mother would be looked after. I feel like this is the opposite of what has happened,” he said in his statement.
“I can confidently say that my mother was in a worse state at the end of the Public Advocate’s control over her than when she first came to be subject to orders. She has not been afforded basic human dignity.”
The royal commission heard that in Western Australia, First Nations people made up 17 per cent of all those “under orders” despite making up only 3.3 per cent of the population.
Ms Bagdonvicius said it was an over-representation. She agreed that her staff had no training in Indigenous culture or trauma and had no First Nations staff members.
The WA Public Advocate office was the subject of a critical report last year when the West Australian Ombudsman found that relatives were left uninformed when loved ones under state care died.
The office responded by saying it “does not believe it has a statutory function” to do so. The Public Advocate apologised and said it would change practices.
In other evidence, Queensland’s Public Guardian, Shayna Smith, said only 43 per cent of people under the care of the office had been visited face to face in the past 12 months.
The Queensland Public Trustee, Samay Zhouand, came under heavy questioning about perceived conflicts of interest and high fees for people on the disability support pension, with some paying 37 per cent of their income in fees.
“If they have high levels of assets it does have a factor on their disability support pension,” Mr Zhouand said.
It is a criminal offence in virtually every state in Australia for the media to identify anyone under the public guardian and trustee punishable by jail and fines.
The disability royal commission will spend the rest of the week hearing evidence from other states in virtually every state and territory.
The increasing complexities of duty to defend issues in Illinois have led us to take a careful look and provide our clients with what we hope is a useful overview on Illinois law.
A. GENERAL NATURE OF THE DUTY TO DEFEND
The insuring agreement of most standard form liability policies grants the insurer the right and duty to defend its insured in any suit seeking damages allegedly within the scope of coverage. Despite this relatively simple directive, there are many conditions and obligations inherent in the duty to defend that are important to understand, particularly if the insurance contract will be governed by Illinois law. Under Illinois law, the scope of the duty to defend is broad and the consequences for improperly ignoring it are dire. We discuss below some of the considerations for an insurer in determining the scope of its potential duty under Illinois law.
1. The duty to defend is a distinct obligation from the duty to indemnify
It is important to understand that the duty to defend is not simply a part or subset of the promise to indemnify; it is an independent obligation to the insured. In an insurance policy, the duty to defend and the duty to indemnify are separate and distinct obligations covered by different policy language. Conway v. Country Cas. Ins. Co., 442 N.E.2d 245 (Ill. 1982). The duty to defend is broader than the duty to indemnify. Outboard Marine Corp. v. Liberty Mut. Ins. Co., 607 N.E.2d 1204 (Ill. 1992). It is the potential liability that gives rise to the insurer’s duty to defend, even though there may not be a high probability of recovery under the terms of the contract. Hertz Corp. v. Garrott, 566 N.E.2d 337 (Ill. App. 1990).
Unlike the duty to defend, the duty to indemnify is determined based on whether the claim actually came within the policy and arises only when the insured becomes legally obligated to pay damages. La Grange Memorial Hosp. v. St. Paul Ins. Co., 740 N.E.2d 21 (Ill. App. 2000). In fact, an insurer may have a duty to defend its insured even when it ultimately has no duty to indemnify the insured for the damages which are the subject of the lawsuit. Zurich Ins. Co. v. Raymark Indus. Inc., 514 N.E.2d 150 (Ill. 1987).
The breadth of the duty to defend is notable upon the conclusion of a lawsuit, where, if there is a determination that there is no coverage for the claim under the policy, the insurer will not be obligated to indemnify its insured. However, in contrast with many other states, under Illinois law, the insurer is not entitled to recover its defense costs. The Illinois Supreme Court recently ruled that insurers have no right to recoup defense costs after the fact, notwithstanding any rights the insurer asserts to do so in its reservation of rights letter. General Agents Ins. Co. of America v. Midwest Sporting Goods, Inc., 828 N.E.2d 1092 (Ill. 2005). In General Agents, the court stated that “as a matter of public policy, we cannot condone an arrangement where an insurer can unilaterally modify its contract, through a reservation of rights, to allow for reimbursement of defense costs” in the event of a later finding. Id. at 1102. Moreover, the court reasoned that in undertaking the defense of its insured, an insurer is protecting itself as least as much as it is protecting its insured and, thus, the insured is not unjustly enriched when it receives a defense, even if some or all of those claims are later revealed to be outside of coverage. Id.
2. The duty to defend is based on the allegations of the complaint
Whether an insurer has a duty to defend its insured in a lawsuit depends on the allegations of the complaint and the scope of the insurance policy. Cincinnati Cos. v. West American Ins. Co., 701 N.E.2d 499 (Ill. 1998). It is well established in Illinois that the allegations of the complaint determine the duty to defend. When faced with a complaint against its insured, the insurer must determine whether it has a duty by comparing the allegations of the complaint with the terms of the policy. Adman Products Co. v. Federal Ins. Co., 543 N.E.2d 219 (Ill. App. 1989). If the complaint alleges facts within the coverage of the policy or potentially within the coverage of the policy, the duty to defend is established. Crum and Forster Managers Corp. v. Resolution Trust Corp., 620 N.E.2d 1073 (Ill. 1993); Outboard Marine Corp., 607 N.E.2d at 699; Maryland Cas. Co. v. Peppers, 335 N.E.2d 24 (Ill. 1976). In fact, an insurer must defend its insured if the complaint alleges facts within the policy coverage even if the allegations are groundless, false or fraudulent. Dixon Distributing Co. v. Hanover Ins. Co., 641 N.E.2d 395 (Ill. 1994).
3. An insurer must defend if it knows of facts that bring a claim within coverage
When evaluating potential coverage for purposes of the duty to defend, the insurer cannot read the allegations of the complaint too strictly. For example, the legal labels used by a plaintiff in a complaint to define its causes of action are not dispositive as to whether a duty to defend exists.
U.S. Fidelity & Guar. Co. v. Wilkin Insulation Co., 578 N.E.2d 926 (Ill. 1991). Moreover, if the insurer has knowledge of facts not alleged in the complaint that bring the cause of action potentially within coverage, that knowledge can create a duty to defend even if the bald allegations of the complaint do not. Associated Indem. Co. v. Insurance Co. of North America, 386 N.E.2d 529 (Ill. App. 1979). In Associated, the court reasoned that “if the insurer has knowledge of true but unpleaded facts, which, when taken together with the complaint’s allegations, indicate that the claim is within or potentially within the policy’s coverage,” the insurer must defend. Id. at 536. The Associated court reasoned that it could not allow an insurer to “construct a formal fortress of the party’s pleadings and to retreat behind its walls.” Id. However, the court in Associated did not affirmatively impose an obligation on the insurer to investigate facts, but merely required that the insurer rely on facts it knows to be correct, even if they are not properly alleged in the complaint. Id. at 537.
Conversely, when an insurer has independent knowledge that the allegations of a complaint against its insured are untrue, it must still defend if the allegations on their face fall within coverage. Sims v. Illinois National Cas. Co., 193 N.E.2d 123 (Ill. App. 1963). Sims involved a policy which excluded coverage for employees injured while engaged in their employment. The personal injury lawsuit filed against the insured by a former employee did not allege that the plaintiff was an employee of the insured at the time of his injury. Although the insurer knew the plaintiff was an employee, it was still obligated to defend based on the allegations of the complaint. Id. at 125. Similarly, in Aetna Cas. & Sur. Co. v. Coronet Ins. Co., 358 N.E.2d 914 (Ill. App. 1976), the insurance company improperly refused to defend the driver of a vehicle based on the fact that the driver did not have the owner’s permission and, therefore, was not an “insured” under the terms of the policy. However, because the complaint against the driver did not raise that issue, the court found the claim potentially within coverage and the insurer obligated to defend. Id. at 917.
B. DETERMINING THE APPLICATION AND SCOPE OF THE DUTY TO DEFEND
1.The threshold for determining whether a duty to defend exists is low
The standard to determine whether a claim falls potentially within coverage is extremely low. West Bend. Mut. Ins. Co. v. Sundance Homes, Inc., 606 N.E.2d 326 (Ill. App. 1992).
An example of how the duty to defend is established when the complaint falls “potentially” within coverage is seen in Clemmons v. Travelers Ins. Co., 430 N.E.2d 1104 (Ill. 1981). In Clemmons, the underlying complaint alleged that the driver of a car owned by the Red Cross caused an accident. The insurer refused to defend the driver because the driver did not have permission from the Red Cross to drive the car. However, the court found that the complaint did not need to allege permission in order to trigger the duty to defend, noting that the possibility the driver had permission was enough to bring the complaint potentially within coverage. Id. at 1108.
In making the determination whether the claims fall within coverage, the allegations of the lawsuit must be read liberally in favor of coverage. United States Fidelity & Guar. Co. v. Wilkin Insulation Co., 578 N.E.2d 926 (Ill. 1991). The insurer can only refuse to defend when the allegations of the lawsuit “cannot possibly cover the liability arising from the facts alleged.” Illinois Emasco Ins. Co. v. Northwestern Nat’l Co., 785 N.E.2d 905 (Ill. App. 2003). In considering the duty to defend, “any ambiguous or equivocal expressions in the policy will be strictly construed against the insurer.” Solo Cup Co. v. Federal Ins. Co., 619 F.2d 1178 (7th Cir. 1980). For example, the Illinois Appellate Court reviewed a complaint based on fumes emitted from a refuse dump owned by the insured. LaRotunda v. Royal Globe Ins. Co., 408 N.E.2d 928 (Ill. App. 1980). The complaint did not assert that the dump was operated as a business, a fact which would exclude it from coverage. The court declared the insurer had a duty to defend because the complaint “left open the possibilities that the refuse dump was not a business or that the smoke came from a fire on part of the vacant premises that was not devoted to a business use” and it was therefore not clear from the allegations of the complaint that there was no coverage. Id. at 934.
2. When provisions of the policy are relied on to refuse a defense, their application must be clear
In order for an insurer to refuse to defend a complaint filed against its insured, it must show that there is no possibility of coverage for any claim alleged. An insurer may not refuse to defend unless it is clear from the face of the underlying complaint that the allegations fail to state facts which bring the case potentially within the policy’s coverage. Maryland Casualty Co. v. Peppers, 355 N.E.2d 24 (Ill. 1976).
Illinois court decisions which have allowed insurers to refuse to defend have done so by ruling that the complaint contained allegations which excluded coverage under the policy. Sheppard, Morgan & Schwabb, Inc. v. U.S. Fidelity & Guar. Co., 358 N.E.2d 305 (Ill. App. 1976). In Sheppard, the liability insurance policy of the insured engineering firm clearly excluded liability arising out of professional services. Id. at 308. Since the complaint alleged only damages due to the negligent performance of professional services, the insurer had no duty to defend. Id. The decision rendered by an Illinois appellate court in Dorre v. Country Mut. Ins. Co., 363 N.E.2d 464 (Ill. App. 1977), also illustrates the rule. The Dorre complaint alleged that the insured “owned, operated, maintained, controlled and was possessed of premises” where the plaintiff was injured. Id. at 465. The policy excluded coverage for premises owned, rented, or controlled by the insured unless they were listed in the policy. Id. at 467. The premises where the injury occurred were not listed, and thus the court found no duty to defend. Id.
Despite the two cases cited above, we caution that if the insurer intends to rely on an exclusion in the policy’s coverage, that exclusion must be “clear and free from doubt” that it excludes coverage for the facts alleged. Bituminous Cas. Corp. v. Fulkerson, 571 N.E.2d 256 (Ill. App. 1991).
3. Only one cause of action or theory for recovery need fall within coverage to trigger the duty to defend
If the underlying complaint alleges several theories of recovery against an insured, the duty to defend arises even if only one theory is within the potential coverage of the policy. Wilkin, 578 N.E.2d at 930. In this matter, the plaintiffs pled several alternate causes of action and legal theories, and the court found that the insurer “has a duty to defend its insured if any theory of recovery alleges potential coverage” (emphasis in original). Id.
In Management Support Assoc. v. Union Indem. Ins. Co., 473 N.E.2d 405 (Ill. App. 1984), an architectural and engineering partnership was sued by the owner of a hotel, who alleged that the partnership failed to properly maintain and repair the hotel property. The partnership’s insurer refused to defend on the grounds that the policy contained an exclusion for certain types of conduct. However, the court ruled that the allegations did not indicate whether the alleged failure was a result of negligent conduct or an intentional disregard of its duties and, if one was covered, the insurer was obligated to defend the insured in the litigation. Id. at 412.
4. If there is a duty to defend, the insurer must defend the entire action
Once the duty to defend arises and the insurer agrees to assume the defense of the lawsuit, that defense includes all of the claims within the complaint. Maryland v. Peppers, 355 N.E.2d at 28. As described above, if the underlying complaint alleges several theories of recovery, only one need fall within coverage to impose a duty to defend. Wilkin, 578 N.E.2d at 930. In Wilkin, the plaintiffs pled several alternate causes of action and legal theories, some of which were clearly outside of coverage, yet the court required the insured to defend the entire action. Id.
This somewhat strict rule means that the insurer cannot selectively defend only the counts of the complaint that fall within its coverage. Bedoya v. Illinois Founders Ins. Co., 688 N.E.2d 757 (Ill. App. 1997). In Bedoya, a bar owner tendered its defense under a dram shop policy for a shooting which occurred in the bar. The insurer refused to defend claims alleged in the complaint for negligence and punitive damages, which fell outside of the dram shop policy. Although it acknowledged that several other states divide the duty to defend between the insurer and the insured, the Bedoya court followed Maryland v. Peppers in ruling that the insurer was obligated to defend all counts in the complaint regardless of the relevance to its policy coverage. Id. at 763.
In certain situations, insurers also argue that they should be entitled to allocate the costs of a defense to the insured during periods of self-insurance or among multiple insurers involved in a program of coverage. This question of allocation of defense expenses generally arises in progressive or “long tail” claims, frequently seen in the asbestos or environmental context. When the alleged injury occurs over a period of many years, triggering numerous insurance policies, some Illinois courts have permitted the pro-ration of indemnity costs between the policies under various allocation scenarios. However, no reported decisions have permitted the pro-rating of defense costs between multiple insurance policies.
In fact, a recent Illinois appellate court ruled that this type of pro-rata allocation is inappropriate for defense costs based on the “joint and several” liability imposed by commercial general liability policy language. Caterpillar, Inc. v. Century Indemnity Co., No. 04-L-119 (Ill. App. 2007). In Caterpillar, the insurer challenged the allocation of the insured’s asbestos defense costs, arguing that it was unclear whether some of the costs appropriately fell within the insurer’s policy and that the defense costs should be apportioned between various insurers and the insured. The court denied the insurer’s request, reasoning that the insurer had a duty to defend all lawsuits in which the allegations potentially result in recovery from the insured, including those that did not allege dates of injury to demonstrate the losses were within the policy coverage. The Caterpillar court further reasoned that the policy language dictates an “all sums” allocation of defense costs.
5. When defending litigation, an insurer must protect the interests of its insured
An insurer which assumes the defense of litigation has an obligation to the insured to properly defend and properly settle claims. Generally, providing a vigorous defense of the insured presents little problem, as it is in the interest of the insurer to minimize any liability to its insured. With the exception of specific conflicts which arise between the interests of the insurer and its insured based on the pursuit of claims which impact the insured’s coverage, as described in a separate section of this paper, the interests of the insurer and the insured are generally aligned in the goal of obtaining a verdict in favor of the insured. However, potential problems between the insurer and the insured frequently arise during the course of settlement negotiations with the plaintiff.
The insurer who controls the defense of its insured also controls the settlement negotiations. Of course, the insurer’s obligation to protect the interests of its insured applies to any negotiations. Krutsinger v. Illinois Cas. Co., 141 N.E.2d 16 (Ill. 1957). However, conflicts between the insurer and its insured can often arise in the handling of settlement negotiations. For example, when a plaintiff issues a settlement demand approaching the policy limits, an insurer may decide to try the case with the hope of a lower verdict. However, if the potential exposure in the case exceeds the policy limits, the insurer is making a decision which impacts the insured’s finances. To protect the insured from the risk that its insurer will irresponsibly gamble with the insured’s money, courts imply a duty on the insurer to act on the insured’s behalf and enter into reasonable settlements. As a result, when a claim against the insured presents a reasonable probability of a finding in excess of policy limits, an insurer that fails to settle within the policy limits may be liable for any verdict in excess of the policy limits. Haddick v. Valor Ins., 763 N.E.2d 299 (Ill. 2001).
C. THE INSURER MAY DEFEND THE LAWSUIT UNDER A RESERVATION OF RIGHTS
1. An insurer must reserve its rights to disclaim coverage
When an insurer assumes the defense of an action, it must advise its insured of the potential defenses it maintains with respect to its obligation to indemnify the insured. This advice to the insured commonly takes the form of a “reservation of rights” letter.
If the insurer fails to advise the insured of the potential defenses, the insurer will reasonably expect coverage for any liability. As a result of the expectation it created, the insurer will often be estopped from raising defenses to coverage at the conclusion of the lawsuit. Doe v. Illinois State Medical Inter-Insurance Exchange, 599 N.E.2d 983 (Ill. App. 1992). Courts reason that an insurer who elects to assume the defense of an insured notwithstanding its doubts as to the duty to defend or indemnify the insured may be estopped from denying liability because it has prejudiced the insured’s right to control his own defense by inducing the insured to rely on the insurer. Certain Underwriters at Lloyd’s v. Professional Underwriters Agency, Inc., 848 N.E.2d 597 (Ill. App. 2006) (citing Apex Mut. Ins. Co. v. Chistner, 240 N.E.2d 742 (Ill. App. 1968)). Thus, Illinois courts require the insurer to notify its insured of potential policy defenses in a timely manner, through a reservation of rights or the filing of a declaratory judgment action to determine coverage. If the insurer fails to take one of those steps, the insurer risks waiving its policy defenses to coverage. Employers Ins. of Wausau v. Ehlco Liquidating Trust, 708 N.E.2d 1122 (Ill. 1999).
There have been cases in which Illinois courts have refused to impose the harsh penalty of estoppel on an insurer that did not reserve its rights. In Crum and Forster Managers Corp. v. Resolution Trust Corp., 620 N.E.2d 1073 (Ill. 1993), the court found that the allegations of unfair business practices and intentional business torts did not fall even potentially within the error-and-omissions policies and, thus, did not trigger a duty to defend. However, the insured claimed that the insurer waived its right to deny coverage under the policy because the insurer raised noncoverage in a related action and then failed to pursue it in that action. Id. at 1080. The court found that argument meritless, stating that the insurer had not intentionally relinquished a known right, and therefore could still deny coverage under the policy. Id. Similarly, in West Bend Mutual Ins. Co. v. Sundance Homes, Inc., 606 N.E.2d 326 (Ill. App. 1992), the insurer was not estopped from asserting coverage defenses because of its initial agreement to handle the claim without a reservation of its rights. In West Bend, the insurer’s initial response to the insured’s tender was made without the benefit of the complaint and therefore cannot be considered an intentional relinquishment of known rights. Id. at 337. Moreover, the court concluded that the insured did not prejudicially rely on the insurer’s agreement to defend and, thus, estoppel was inappropriate. Id.
2. Conflicts may arise between the interests of the insurer and the insured
During the defense of litigation, conflicts of interest often arise between the insurer and its insured. For example, if the question of whether damages will ultimately be covered under the policies turns on factual issues to be decided in the litigation, the insurer has an interest adverse to its insured. The test for whether a conflict exists is if, in comparing the allegations of the complaint to the terms of the policy, the insurer’s interests would be furthered by providing a less than vigorous defense to the allegations. Williams v. American Country Ins. Co., 833 N.E.2d 971 (Ill. App. 2005). An insurer’s general interest in negating policy coverage does not, alone, create a sufficient conflict to preclude the insurer from assuming the defense of the insured. Nandorf, Inc. v. CNA Ins. Co., 479 N.E.2d 988 (Ill. App. 1985). Rather, a conflict exists when the underlying action asserts claims that are covered by the insurance policy along with other causes which the insurer is required to defend, but asserts are not covered by the policy. Id. at 992.
A review of the case law in Illinois illustrates the types of situations courts believe raise conflicts between an insurer and its insured:
Complaint alleged negligent acts occurring both during and after policy period. Illinois Masonic Med. Ctr. v. Turegum Ins. Co., 522 N.E.2d 611 (Ill. App. 1988).
Complaint alleged battery and negligence, but insurer would not indemnify insured if found guilty of battery. Thornton v. Paul, 384 N.E.2d 335 (Ill. 1978).
Complaint alleged negligence and intentional acts, but intentional acts were excluded from coverage. Maryland Cas. Co. v. Peppers, 335 N.E.2d 24 (Ill. 1976).
Conflicts may also arise when an insurer is obligated to provide defenses for two or more insureds with adverse interests, either to each other or to the insurer:
Insured’s employee entitled to independent counsel to defend claims of negligence. Willams v. American Country Ins., 833 N.E.2d 971 (Ill. App. 2005).
Additional insured entitled to own defense counsel because its interests conflicted with that of named insured. Murphy v. Urso, 430 N.E.2d 1079 (Ill. 1981).
In each of the above-cited cases, the insurer was obligated to cede control of the defense to the insured and to reimburse the insured for its defense expenses.
Unlike some other jurisdictions, Illinois courts also view cases involving allegations of punitive damages to be the subject of potential conflict. In Nandorf, the complaint sought punitive damages, which were not covered under the policy, based on a claim that the insured’s employees acted in bad faith. Nandorf, 479 N.E.2d at 992. The Nandorf court found that the insurer would have little interest in seeking a finding of good faith on the insured’s behalf, as that finding would only impact the claim for punitive damages and not the claim for liability. Id. The court ruled that this divergence of interests created an actual conflict which rendered it improper for the insurer to retain control of the litigation. Id. Similarly, in Illinois Municipal League Risk Mgmt. Ass’n v. Seibert, 585 N.E.2d 1130 (Ill. App. 1992), the court found a conflict existed when the plaintiff sought both compensatory and punitive damages, which were excluded from coverage, and again forced the insurer to cede control of the defense. In Illinois Municipal, the court reasoned that although the potential conflict did not involve mutually exclusive claims which would shift liability from the insurer to the insured, there was a conflict between the parties’ interests in the way the punitive damages claim might be defended. Id. at 1139.
3. In the event of a conflict, the insured has the right to control the defense
When an insurer assumes the defense of its insured, the counsel selected owes fiduciary duties to two clients, the insured and the insurer. Illinois courts have recognized that the attorneys hired to defend the matter may have a stronger relationship with the insurer and a “more compelling interest in protecting the insurer’s position, whether or not it coincides with what is best for the insured.” Nandorf, 479 N.E.2d at 991. When there is a conflict of interest between the insurer and the insured, Illinois courts are concerned that the insurer will further its own interests in the development of issues in the case or will provide “less than a vigorous defense” for its insured. Insurance Co. of Illinois v. Markogiannakis, 544 N.E.2d 1082 (Ill. App. 1989).
In some situations, a potential conflict between the insured and the insurer can be resolved by full disclosure of the conflict and consent from the insured to the defense. Nandorf, 479 N.E.2d at 991 (citing Maryland Casualty, 335 N.E.2d at 198). However, if the insured chooses not to accept the defense in the face of a potential conflict, the insured is entitled to control its own defense and retain counsel of its choosing, to be paid by the insurer. If that occurs, the insurer will satisfy its duty to defend by reimbursing the insured for the costs of defense counsel the insured has retained. Thornton, 384 N.E.2d at 343.
When the insured declines representation by the insurer and demands control of its own defense, the insurer is no longer permitted to participate in the defense. Once the insurer cedes control of the defense of the litigation, the insurer is said to have “renounced control of the litigation and thereby thrust the responsibility for the litigation wholly upon the insured and its counsel.” Markogiannakis, 544 N.E.2d. at 567. Similarly, if the insured controls the defense, it will also have the right to control its own settlement negotiations. In those negotiations, the insurer will not participate, nor will it have a right to prevent a settlement. Commonwealth Edison Co. v. National Union Fire Ins. Co., 752 N.E.2d 555 (Ill. App. 2001).
D. REFUSAL TO DEFEND
Despite the strict eye with which Illinois courts view the duty to defend, complaints are filed that simply do not fall within the scope of coverage, or contain allegations triggering valid coverage defenses. An insurer has no duty to defend where it is clear from the face of the underlying complaint that the allegations fail to state facts that bring the case within, or potentially within, coverage. Connecticut Indem. Co. v. DER Travel Service, Inc., 328 F.3d 347 (7th Cir. 2003) (citing Lapham-Hickey Steel Corp. v. Protection Mut. Ins. Co., 655 N.E.2d 842 (Ill. 1995)).
When the insurer believes it has no obligation under the policy, it has three options: (1) defend under a reservation of rights; (2) file a declaratory judgment action seeking a ruling from the court as to the issues of coverage; or (3) deny coverage. Courts have stated that an insurer which chooses to deny coverage without other action does so at its peril, because if it is later found to have wrongfully refused to provide a defense, it will have breached the insurance contract. Certain Underwriters at Lloyd’s v. Professional Underwriters Agency, Inc., 848 N.E.2d 597 (Ill. App. 2006).
An insurer that seeks a declaration of its coverage protects itself from certain penalties associated with a blanket refusal to defend, including waiver of its coverage defenses. However, filing a declaratory judgment action against the insured, of course, forces the insurer to incur the costs of an additional litigation. Certain Underwriters at Lloyd’s, 848 N.E.2d at 605. When denying coverage, Illinois courts do not require that the insurer first receive a declaration that the lawsuit is not covered, but they do require that the insurer immediately file its lawsuit to determine the question of coverage. See State Farm Fire & Cas. Co. v. Martin, 710 N.E.2d 1228 (Ill. 1999).
1. Consequences for refusing to defend
Insurers evaluating whether to defend an insured that has been sued in Illinois must consider the consequences carefully before refusing to defend. The sanctions for wrongfully refusing to defend can be quite severe, making the duty to defend extremely difficult to avoid. If a court later determines that the insurer should have defended its insured, the insurer can be liable for: (1) the amount of a judgment against the insured or a settlement made by the insured; (2) expenses and fees incurred by the insured in defending the lawsuit; and (3) any additional damages attributable to the refusal to defend. Sims v. Illinois Nat’l Cas. Co., 193 N.E.2d 123 (Ill. App. 1963). The additional damages could include interest and fees payable on the defense costs and possibly the costs associated with recovery from the insurer. Conway v. Country Cas. Ins. Co., 442 N.E.2d 245 (Ill. 1982). In more severe cases, insurers could be liable for the full amount of the judgment or settlement, even if it exceeds the policy limits. Reis v. Aetna Cas. & Surety Co. of Illinois, 387 N.E.2d 700 (Ill. App. 1978). A remedy in excess of policy limits generally limited to situations in which the insurer’s refusal to defend was made in bad faith. See Conway, 442 N.E.2d 245.
Perhaps most important, if an insurer fails to defend the insured without justification, the insurer will be estopped from raising policy defenses to coverage and in extreme situations may be exposed to claims of bad faith. Courts impose the penalty of estoppel under the rationale that, by wrongfully refusing to defend its insured, the insurer has breached its contract. This breach estops the insurer from asserting any defense based on non coverage, because “the insurer has no right to insist that the insured be bound by the provisions of the insurance contract inuring to its benefit when it has already breached the contract by violating the provisions inuring to the benefit of the insured.” Certain Underwriters at Lloyd’s, 848 N.E.2d at 604 (citing Sims, 193 N.E.2d at 134.)
2. An insurer cannot discharge its duty to defend by tendering the policy limits
It is not uncommon for the litigation expenses associated with defending an insured in protracted litigation to exceed the indemnity limits of the insured’s policy. Yet, under many insurance policies, the defense costs are “in addition to” the policy limits. In these situations, the insurer must pay for the defense costs in addition to any indemnity obligation it will incur through settlement or judgment. As a result, some insurers have attempted to discharge their more costly defense obligations by simply tendering the policy limits. Illinois courts do not allow this without the insured’s consent. Douglas v. Allied American Ins., 727 N.E.2d 376 (2000). Despite the sometimes disproportionate costs of litigation, the insurer must continue to defend until it has exhausted the indemnity limits of its policy. Conway, 442 N.E.2d at 249.
E. RIGHTS AND OBLIGATIONS OF THE INSURED
Generally, once an insured is sued, it provides notice to its liability insurer and requests that the insurer provide a defense in the lawsuit. We discuss below some issues raised by situations in which the insured does not provide notice of a lawsuit to its insurer.
1. An insured’s failure to give notice may waive its right to a defense
Contracts for insurance generally impose an obligation on the insured to notify the insurer in the event of both an “occurrence,” as defined by the policy, and a claim against the insured. Generally, notice is required “as soon as practicable,” which Illinois courts have interpreted to mean within a “reasonable” period of time. Barrington Consol. High School v. American Ins. Co., 319 N.E.2d 25 (Ill. 1974).
There is a line of cases in Illinois holding that breaching a policy’s notice provisions by failing to give reasonable notice will defeat the right of the insured party to recover under the policy. See e.g., Simmon v. Iowa Mut. Cas. Co., 121 N.E.2d 509 (Ill. 1954). Many of the cases that have followed Simmon have denied coverage for an insured who fails to provide notice to its insurer of an “occurrence” under the policy, rather than a lawsuit potentially covered by the policy. Other cases have required that the insurer demonstrate prejudice in order to deny coverage based on a failure of the insured to notify its insurer of a lawsuit. Rice v. AAA Aerostar, Inc., 690 N.E.2d 1067 (Ill. App. 1998). However, the Illinois Supreme Court recently applied the Simmon line of case law to an insured who failed to provide timely notice of the lawsuit filed against it. Country Mutual Ins. Co. v. Livorsi Marine, Inc., 856 N.E.2d 338 (Ill. 2006). In Country Mutual, the court ruled that because the insurer did not receive reasonable notice of the lawsuit, the insured could not recover under the policy, regardless of whether the lack of notice prejudiced the insurer. Id. at 346. The court reasoned that in determining whether an insured unreasonably failed to provide notice of a lawsuit, sufficient to forego its rights to policy coverage, courts should consider the specific language of the policy’s notice provision, the insured’s sophistication in insurance matters, the insured’s awareness of an event which could trigger insurance coverage, the insured’s diligence in ascertaining whether policy coverage was available, and any prejudice to the insurer. Id. at 344.
2. An insurer’s independent knowledge of a lawsuit can trigger a duty to defend
Occasionally, an insured fails to give notice to an insurer of a lawsuit potentially falling within coverage, but the insurer becomes aware of the lawsuit through some other source. Illinois courts have held that an insurer has “actual notice” of a lawsuit against its insured when it is has “notice sufficient to permit the insurer to locate and defend the lawsuit.” Cincinnati Cos. v. West American Ins. Co., 701 N.E.2d 499 (Ill. 1998). Actual notice therefore requires that the insurer know that a cause of action has been filed and that the complaint falls within or potentially within the scope of its coverage. Id. at 505.
Once the insurer has actual notice of the lawsuit against its insured, its duty to defend is potentially triggered. At this point, the obligation falls on the insurer to inquire as to whether the insured desires a defense in the litigation. Cincinnati, 701 N.E.2d at 504. Interestingly, the level of sophistication of the insured is not a factor in determining whether actual notice will trigger the duty to defend. Despite arguments that a sophisticated insured should be held to a higher standard in advising its insurer of lawsuits filed against it, in Illinois, even an insured who is well-versed in business and insurance matters will be excused from tendering the defense to its insurer if the insurer has actual notice of the suit. Id.
3. The insured has the right to elect whether it seeks a defense
Despite an insurer’s actual notice of a lawsuit, the duty to defend is still not triggered until the defense is accepted by the insured. Once the insurer discovers the lawsuit, it can discharge its duty to defend by inquiring whether the insured does, in fact, seek a defense to the lawsuit. In Cincinnati, the court reasoned that the “insurer is not required to actually defend every claim against its insured of which it has actual notice.” Cincinnati, 701 N.E.2d at 504. More importantly, an insurer is not required to interpret its insured’s silence as desire for a defense. Id. Therefore, if an insured does not respond to an insurer’s offer of defense or refuses to cooperate with the insurer, the insurer’s duty to defend will be discharged. Id.
It is important to remember that an insured is not required to accept a defense from its insurer. In fact, there may be legitimate commercial reasons for an insured to decline the insurer’s offer to defend the action or to pay for the defense. Similarly, if more than one insurer is potentially obligated to defend a lawsuit, an insured has the right to select exclusive coverage and defense from one of its insurers. See, e.g., John Burns Const. Co. v. Indiana Ins. Co., 727 N.E.2d 211 (Ill. 2000); Cincinnati, 701 N.E.2d at 503; Institute of London Underwriters v. Hartford Fire Ins. Co., 599 N.E.2d 1311 (Ill. App. 1992). Under this line of cases, an insured may knowingly forgo an insurer’s assistance by instructing the insurer not to involve itself in the defense in favor of a defense from another insurer. Cincinnati, 701 N.E.2d at 503. This instruction is commonly referred to as a targeted tender or selective tender. In Cincinnati, the court reasoned that the selective tender rule is intended to protect the rights of the insured to forgo coverage. Id. at 503.
Courts also allow an insured who has tendered the defense to one insurer to withdraw the tender or deactivate coverage with that insurer, even mid-way through litigation, in favor of assistance from another insurer. Alcan United, Inc. v. West Bend Mut. Ins. Co., 707 N.E.2d 687 (Ill. App. 1999). The extent of this principle has not yet been tested by Illinois courts, as the Alcan case involved a situation where the insured selected the new insurer once it became aware of the coverage afforded under that policy. We note that if the Illinois courts continue down this path of allowing insureds to deactivate coverage, it could open the door to permit insureds to manipulate coverage in potentially harmful ways during the course of litigation in order to maximize coverage or to minimize the impact of potential policy exclusions in certain policies.
4. An insurer is not liable for claims of contribution where the insured has knowingly foregone coverage
Targeted or selective tender arises most frequently in lawsuits involving multiple policy periods or when the insured has its own general liability policy and is named as an additional insured on another policy. The reasons an insured may wish to elect a defense from the insurer of another party, rather than its own insurer, seem obvious and courts appear to endorse that right. In these circumstances, Illinois courts have reasoned that the insured has the right to choose or knowingly forgo an insurer’s assistance in the defense. John Burns, 727 N.E.2d at 211.
Moreover, when the insured makes a targeted or selective tender, the duty to defend falls solely on the selected insurer and that insurer may not seek equitable contribution from the non-designated insurers. See, Legion Ins. v. Empire Fire and Marine Ins. Co., 822 N.E.2d 1 (Ill. App. 2004); John Burns, 727 N.E.2d 211, Institute of London, 599 N.E.2d at 1311. In each of these cases, the insured deliberately chose to tender its defense to an insurer who provided it coverage under a policy issued to another party (an employer or a subcontractor), rather than seeking a defense from its own commercial general liability insurer. At the conclusion of the lawsuits, each of these courts found that the insured had the right to select which insurer would defend the lawsuit and refused to allow the defending insurer to recover costs associated with the defense from the insured’s own liability insurer. The Legion court reasoned that when an insured has knowingly chosen to forego an insurer’s assistance by instructing an insurer not to involve itself in the litigation, that insurer is relieved of all obligations to defend. In that situation, the targeted insurer has sole responsibility to defend the lawsuit and it may not seek equitable contribution from other insurers. Legion, 882 N.E.2d at 6.
In reaching its decision on the question of contribution between insurers, the John Burns court directly addressed the “other insurance” clause, contained in many insurance policies, which would appear to be an insurer’s strongest basis for a claim of contribution. The “other insurance” clause generally prioritizes coverage among “other valid and collectible insurance” available to the insured for the same loss. Although the argument for contribution between multiple insurers seems compelling when faced with an “other insurance” clause, the John Burns court ruled that the non-tendered policy was simply not “available” insurance under the terms of the clause and found the clause inapplicable when an insurer who is covered by multiple policies makes a knowing designation. John Burns, 727 N.E.2d at 217. The court reasoned that an “other insurance” clause in a policy will not reach into coverages provided under other policies merely because such policies are in existence. Id.
F. CONCLUSION
Insurers should be aware of the stern approach Illinois courts take in considering the obligations imposed by the duty to defend. Specifically, a few points distinguish Illinois from many states in its pro-insured approach to the defense of potentially covered claims. First, under Illinois law, it is extremely difficult to deny coverage without undertaking the costs associated with filing a declaratory judgment action. Second, and perhaps even more unusual, Illinois law permits an insured to select whether and which of its insurers will provide a defense. With relatively free reign, an insured can, for reasons of strategy or cost, selectively tender its defense to one insurer to the exclusion of another. In this situation, the selected insurer may not seek equitable contribution from other insurers. Finally, although several other states grant an insurer the right to reimbursement of non-covered defense costs, Illinois does not. Under a recent decision from the Illinois Supreme Court, underscoring the distinct nature of the duty to defend from the duty to indemnify, insurers will not be able to recover defense costs, even if they have expressly asserted that option in a reservation of rights letter.
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CLEVELAND, Ohio — The Ohio Supreme Court on Tuesday kicked longtime Cleveland Municipal Court Judge Pinkey Carr off the bench and temporarily stripped her of her law license for committing a level of misconductthe majority of justices called “unprecedented.”
The justices voted 5-2 to indefinitely suspend the law license of Carr, the vivacious former assistant county prosecutor who ascended to judgeship in 2012 after helping send serial killer Anthony Sowell to death row.
Carr will be suspended from judicial office without pay. The state’s high court also on Tuesday ordered Carr to immediately “cease and desist” practicing law.
“Carr’s unprecedented misconduct involved more than 100 stipulated incidents that occurred over a period of approximately two years and encompassed repeated acts of dishonesty; the blatant and systematic disregard of due process, the law, court orders, and local rules; the disrespectful treatment of court staff and litigants; and the abuse of capias warrants and the court’s contempt power,” the Supreme Court opinion said. “That misconduct warrants an indefinite suspension from the practice of law.”
The sanction is the most severe punishment the court can hand down short of disbarment.
Carr can apply to have the court reinstate her law license after two years, but she must first convince the justices that she has sufficiently addressed the issues that led the court to take her license.
Chief Justice Maureen O’Connor and justices Patrick Fischer and Jennifer Brunner joined the court’s per curium opinion. First Ohio District Court of Appeals Judge Beth Myers and 10th Ohio District Court of Appeals Judge Lisa Sadler, who sat in place of justices Michael Donnelly and Melody Stewart, also joined the majority. Donnelly and Stewart, who are both from Cuyahoga County, recused themselves from hearing the case.
Justice Sharon Kennedy agreed with the findings of misconduct, but she wrote in a dissenting opinion that she would not have exceeded the conduct board’s recommendation of a two-year suspension. Justice Patrick DeWine joined Kennedy’s dissent.
The majority wrote in Tuesday’s opinion that the court has previously suspended sitting judges who committed a single act of misconduct. Carr’s misdeeds spanned two years and led to multiple people being wrongly arrested and deprived of their liberty, the majority of the justices wrote.
Carr, who had previously sought to explain her misconduct as the result of a mood disorder brought on by mistreated sleep apnea and menopause, asked the court to suspend her for two years with 18 months stayed.
Carr could not be reached for comment.
“We’re disappointed with the severity of the sanction,” Richard Koblentz, the attorney who represented her in her disciplinary case, told cleveland.com and The Plain Dealer.
Koblentz said that Carr apologized for her conduct and admitted to all of the misconduct she was accused of committing during the disciplinary process.
He said he did not know what Carr planned to do in the future.
Ohio Gov. Mike DeWine will appoint someone to take Carr’s seat until voters elect her replacement at a future election.
Carr’s legal troubles do not end there. Ohio Attorney General Dave Yost’s office confirmed to cleveland.com and The Plain Dealer that it has been appointed as a special prosecutor to review whether enough evidence exists to charge Carr with a crime.
It’s unclear how long that review might take.
Carr becomes the first practicing judge in Cleveland to be removed from her seat since 2014, when the Ohio Supreme Court temporarily suspended Angela Stokes while her disciplinary case was pending. Stokes later resigned and agreed to not run for judge again, and the court reinstated her law license in 2016.
Carr’s courtroom was empty shortly after 10 a.m. Tuesday. Her name was removed from the bench.
Pinkey Carr’s name was removed from the Cleveland Municipal Courtroom bench after the Ohio Supreme Court removed her from office Tuesday.Cory Shaffer, cleveland.com
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The investigation into Carr began at the outset of the coronavirus pandemic, when she held in-person hearings on March 16 and 17, despite an order from the court’s Administrative Judge Michelle Earley declaring that all such hearings would be postponed.
Carr, who mocked an attorney who admitted to being nervous about being in the courtroom, issued arrest warrants for more than a dozen people who didn’t show up.
After cleveland.com and The Plain Dealer reported about the hearings, Carr told Earley that she did not issue the warrants, according to authorities. She repeated that in an interview with WJW Channel 8.
Carr said she held the hearings for those defendants who showed up and were unaware that their hearings had been postponed. For those who didn’t show up, she said, she simply checked a box on court filings that indicated that they did not show up.
“As far as issuing warrants for their arrest? Absolutely untrue,” Carr told the TV station.
cleveland.com and The Plain Dealer requested copies of video from Carr’s courtroom that showed her issuing arrest warrants for people who did not show up in the days before the interview and then immediately afterward.
The Supreme Court’s office of disciplinary counsel investigates allegations of misconduct against lawyers and judges. It opened an investigation into Carr that later expanded to her conduct over several years.
The examination found that Carr was jailing people in an effort to compel them to pay fines to make more money for the court. It also revealed that Carr once ordered a woman to spend 15 days in jail because the woman rolled her eyes and made disparaging remarks about Carr’s courtroom during a hearing. Carr berated the woman, held a contempt hearing, which she failed to recuse herself from, and mischaracterized her actions as a basis to send her to jail, the court found.
She negotiated plea deals with defendants on behalf of city prosecutors who were not present and then falsified journal entries that said prosecutors were involved — an act that the court’s majority said in its opinion could amount to the crime of falsification.
“The severity and scope of [Carr’s] judicial misconduct are unprecedented in Ohio,” the disciplinary counsel’s filing said.
Carr also initially misled her character witnesses and her psychiatrist by telling them that she was facing discipline because she did not check the correct box on a form that then triggered the warrants to be issued. After the disciplinary counsel filed an amended complaint, Carr acknowledged committing the misconduct.
Carr also entered the Ohio Lawyers Assistance Program, a treatment program for attorneys with substance abuse or mental health issues and began a mentorship program with Cuyahoga County Common Pleas Judge Joan Synenberg. Carr sat in Synenberg’s courtroom and watched her demeanor.
Tuesday’s opinion noted that Carr’s attorneys had asked the court to find that negative stories in the press about Carr’s misconduct amounted to a sanction and counted as mitigating evidence.
The majority of the justices wrote that they “decline to find that truthful media reports of Judge Carr’s flagrant disregard of the administrative order suspending most courthouse activity in the early days of the COVID-19 pandemic constitute” mitigating evidence.
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The double standard is alive and well in Illinois and in particular in the Circuit Court of Cook County, Illinois cases of 1) In re: Amelia Sallas 07 P 5360, and 2) BYLINE BANK vs. Amelia Sallas 2019 CH 13960.
The Himmel case 125 Ill 2d 531 because it is a Supreme Court of Illinois decision, is the gold standard and pursuant to the 14th Amendment to the UNITED STATES CONSTITUTION the actions of all lawyers are subject to its dictates.
Unfortunately, it appears affirmatively that corruption has raised its ugly head and in direct violation of the core values of both Illinois and the United States of America the regulators of the legal profession selectively apply not only the ethical considerations of the legal profession in a discriminatory manner, but also the RULE OF LAW.
Most prevalent in this corruption is the scandal involving FINANCIAL ELDER ABUSE and in particular the cases of IN RE: AMELIA SALLAS 07 P 5360, and BYLINE BANK vs. AMELIA SALLAS 2019 CH 13960 pending in the Circuit Court of Cook County, Illinois.
As the Supreme Court of Illinois has laid out the RULE OF LAW eloquently and in simple terms, I have copied the decision in full for you all to read. Important parts are given emphasis to wit:
In Re Himmel
125 Ill. 2d 531 (1988)
533 N.E.2d 790
In re JAMES H. HIMMEL, Attorney, Respondent.
No. 65946.
Supreme Court of Illinois.
Opinion filed September 22, 1988.
Rehearing denied January 30, 1989.
*532 *533 *534 William F. Moran III, of Springfield, for the Administrator of the Attorney Registration and Disciplinary Commission.
James H. Himmel, of Palos Heights, respondent pro se.
George B. Collins, of Collins & Bargione, of Chicago, for respondent.
Respondent suspended.
JUSTICE STAMOS delivered the opinion of the court:
This is a disciplinary proceeding against respondent, James H. Himmel. On January 22, 1986, the Administrator of the Attorney Registration and Disciplinary Commission (the Commission) filed a complaint with the Hearing Board, alleging that respondent violated Rule 1-103(a) of the Code of Professional Responsibility (the Code) (107 Ill.2d R. 1-103(a)) by failing to disclose to the Commission information concerning attorney misconduct. On October 15, 1986, the Hearing Board found that respondent had violated the rule and recommended that respondent be reprimanded. The Administrator filed exceptions with the Review Board. The Review Board issued *535 its report on July 9, 1987, finding that respondent had not violated a disciplinary rule and recommending dismissal of the complaint. We granted the Administrator’s petition for leave to file exceptions to the Review Board’s report and recommendation. 107 Ill.2d R. 753(e)(6).
We will briefly review the facts, which essentially involve three individuals: respondent, James H. Himmel, licensed to practice law in Illinois on November 6, 1975; his client, Tammy Forsberg, formerly known as Tammy McEathron; and her former attorney, John R. Casey.
The complaint alleges that respondent had knowledge of John Casey’s conversion of Forsberg’s funds and respondent failed to inform the Commission of this misconduct. The facts are as follows.
In October 1978, Tammy Forsberg was injured in a motorcycle accident. In June 1980, she retained John R. Casey to represent her in any personal injury or property damage claim resulting from the accident. Sometime in 1981, Casey negotiated a settlement of $35,000 on Forsberg’s behalf. Pursuant to an agreement between Forsberg and Casey, one-third of any monies received would be paid to Casey as his attorney fee.
In March 1981, Casey received the $35,000 settlement check, endorsed it, and deposited the check into his client trust fund account. Subsequently, Casey converted the funds.
Between 1981 and 1983, Forsberg unsuccessfully attempted to collect her $23,233.34 share of the settlement proceeds. In March 1983, Forsberg retained respondent to collect her money and agreed to pay him one-third of any funds recovered above $23,233.34.
Respondent investigated the matter and discovered that Casey had misappropriated the settlement funds. In April 1983, respondent drafted an agreement in which Casey would pay Forsberg $75,000 in settlement of any *536 claim she might have against him for the misappropriated funds. By the terms of the agreement, Forsberg agreed not to initiate any criminal, civil, or attorney disciplinary action against Casey. This agreement was executed on April 11, 1983. Respondent stood to gain $17,000 or more if Casey honored the agreement. In February 1985, respondent filed suit against Casey for breaching the agreement, and a $100,000 judgment was entered against Casey. If Casey had satisfied the judgment, respondent’s share would have been approximately $25,588.
The complaint stated that at no time did respondent inform the Commission of Casey’s misconduct. According to the Administrator, respondent’s first contact with the Commission was in response to the Commission’s inquiry regarding the lawsuit against Casey.
In April 1985, the Administrator filed a petition to have Casey suspended from practicing law because of his conversion of client funds and his conduct involving moral turpitude in matters unrelated to Forsberg’s claim. Casey was subsequently disbarred on consent on November 5, 1985.
A hearing on the complaint against the present respondent was held before the Hearing Board of the Commission on June 3, 1986. In its report, the Hearing Board noted that the evidence was not in dispute. The evidence supported the allegations in the complaint and provided additional facts as follows.
Before retaining respondent, Forsberg collected $5,000 from Casey. After being retained, respondent made inquiries regarding Casey’s conversion, contacting the insurance company that issued the settlement check, its attorney, Forsberg, her mother, her fiancé, and Casey. Forsberg told respondent that she simply wanted her money back and specifically instructed respondent to take no other action. Because of respondent’s efforts, *537 Forsberg collected another $10,400 from Casey. Respondent received no fee in this case.
The Hearing Board found that respondent received unprivileged information that Casey converted Forsberg’s funds, and that respondent failed to relate the information to the Commission in violation of Rule 1-103(a) of the Code. The Hearing Board noted, however, that respondent had been practicing law for 11 years, had no prior record of any complaints, obtained as good a result as could be expected in the case, and requested no fee for recovering the $23,233.34. Accordingly, the Hearing Board recommended a private reprimand.
Upon the Administrator’s exceptions to the Hearing Board’s recommendation, the Review Board reviewed the matter. The Review Board’s report stated that the client had contacted the Commission prior to retaining respondent and, therefore, the Commission did have knowledge of the alleged misconduct. Further, the Review Board noted that respondent respected the client’s wishes regarding not pursuing a claim with the Commission. Accordingly, the Review Board recommended that the complaint be dismissed.
The Administrator now raises three issues for review: (1) whether the Review Board erred in concluding that respondent’s client had informed the Commission of misconduct by her former attorney; (2) whether the Review Board erred in concluding that respondent had not violated Rule 1-103(a); and (3) whether the proven misconduct warrants at least a censure.
As to the first issue, the Administrator contends that the Review Board erred in finding that Forsberg informed the Commission of Casey’s misconduct prior to retaining respondent. In support of this contention, the Administrator cites to testimony in the record showing that while Forsberg contacted the Commission and received a complaint form, she did not fill out the form, return *538 it, advise the Commission of the facts, or name whom she wished to complain about. The Administrator further contends that even if Forsberg had reported Casey’s misconduct to the Commission, such an action would not have relieved respondent of his duty to report under Rule 1-103(a). Additionally, the Administrator argues that no evidence exists to prove that respondent failed to report because he assumed that Forsberg had already reported the matter.
Respondent argues that the record shows that Forsberg did contact the Commission and was forwarded a complaint form, and that the record is not clear that Forsberg failed to disclose Casey’s name to the Commission. Respondent also argues that Forsberg directed respondent not to pursue the claim against Casey, a claim she had already begun to pursue.
We begin our analysis by examining whether a client’s complaint of attorney misconduct to the Commission can be a defense to an attorney’s failure to report the same misconduct. Respondent offers no authority for such a defense and our research has disclosed none. Common sense would dictate that if a lawyer has a duty under the Code, the actions of a client would not relieve the attorney of his own duty. Accordingly, while the parties dispute whether or not respondent’s client informed the Commission, that question is irrelevant to our inquiry in this case. We have held that the canons of ethics in the Code constitute a safe guide for professional conduct, and attorneys may be disciplined for not observing them. (In re Yamaguchi (1987), 118 Ill. 2d 417, 427, citing In re Taylor (1977), 66 Ill. 2d 567.) The question is, then, whether or not respondent violated the Code, not whether Forsberg informed the Commission of Casey’s misconduct.
As to respondent’s argument that he did not report Casey’s misconduct because his client directed him not *539 to do so, we again note respondent’s failure to suggest any legal support for such a defense. A lawyer, as an officer of the court, is duty-bound to uphold the rules in the Code. The title of Canon 1 (107 Ill.2d Canon 1) reflects this obligation: “A lawyer should assist in maintaining the integrity and competence of the legal profession.” A lawyer may not choose to circumvent the rules by simply asserting that his client asked him to do so.
As to the second issue, the Administrator argues that the Review Board erred in concluding that respondent did not violate Rule 1-103(a). The Administrator urges acceptance of the Hearing Board’s finding that respondent had unprivileged knowledge of Casey’s conversion of client funds, and that respondent failed to disclose that information to the Commission. The Administrator states that respondent’s knowledge of Casey’s conversion of client funds was knowledge of illegal conduct involving moral turpitude under In re Stillo (1977), 68 Ill. 2d 49, 54. Further, the Administrator argues that the information respondent received was not privileged under the definition of privileged information articulated by this court in People v. Adam (1972), 51 Ill. 2d 46, 48, cert. denied (1972), 409 U.S. 948, 34 L. Ed. 2d 218, 93 S. Ct. 289. Therefore, the Administrator concludes, respondent violated his ethical duty to report misconduct under Rule 1-103(a). According to the Administrator, failure to disclose the information deprived the Commission of evidence of serious misconduct, evidence that would have assisted in the Commission’s investigation of Casey.
Respondent contends that the information was privileged information received from his client, Forsberg, and therefore he was under no obligation to disclose the matter to the Commission. Respondent argues that his failure to report Casey’s misconduct was motivated by his respect for his client’s wishes, not by his desire for financial *540 gain. To support this assertion, respondent notes that his fee agreement with Forsberg was contingent upon her first receiving all the money Casey originally owed her. Further, respondent states that he has received no fee for his representation of Forsberg.
Our analysis of this issue begins with a reading of the applicable disciplinary rules. Rule 1-103(a) of the Code states:
“(a) A lawyer possessing unprivileged knowledge of a violation of Rule 1-102(a)(3) or (4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.” 107 Ill.2d R. 1-103(a).
Rule 1-102 of the Code states:
“(a) A lawyer shall not (1) violate a disciplinary rule; (2) circumvent a disciplinary rule through actions of another; (3) engage in illegal conduct involving moral turpitude; (4) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; or (5) engage in conduct that is prejudicial to the administration of justice.” 107 Ill.2d R. 1-102.
These rules essentially track the language of the American Bar Association Model Code of Professional Responsibility, upon which the Illinois Code was modeled. (See 107 Ill.2d Rules art. VIII, Committee Commentary, at 604.) Therefore, we find instructive the opinion of the American Bar Association’s Committee on Ethics and Professional Responsibility that discusses the Model Code’s Disciplinary Rule 1-103 (Model Code of Professional Responsibility DR 1-103 (1979)). Informal Opinion 1210 states that under DR 1-103(a) it is the duty of a lawyer to report to the proper tribunal or authority any unprivileged knowledge of a lawyer’s perpetration of any misconduct listed in Disciplinary Rule 1-102. *541 (ABA Committee on Ethics & Professional Responsibility, Informal Op. 1210 (1972) (hereinafter Informal Op. 1210).) The opinion states that “the Code of Professional Responsibility through its Disciplinary Rules necessarily deals directly with reporting of lawyer misconduct or misconduct of others directly observed in the legal practice or the administration of justice.” Informal Op. 1210, at 447.
This court has also emphasized the importance of a lawyer’s duty to report misconduct. In the case In re Anglin (1988), 122 Ill. 2d 531, because of the petitioner’s refusal to answer questions regarding his knowledge of other persons’ misconduct, we denied a petition for reinstatement to the roll of attorneys licensed to practice in Illinois. We stated, “Under Disciplinary Rule 1-103 a lawyer has the duty to report the misconduct of other lawyers. (107 Ill.2d Rules 1-103, 1-102(a)(3), (a)(4).) Petitioner’s belief in a code of silence indicates to us that he is not at present fully rehabilitated or fit to practice law.” (Anglin, 122 Ill. 2d at 539.) Thus, if the present respondent’s conduct did violate the rule on reporting misconduct, imposition of discipline for such a breach of duty is mandated.
The question whether the information that respondent possessed was protected by the attorney-client privilege, and thus exempt from the reporting rule, requires application of this court’s definition of the privilege. We have stated that “`(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.'” (People v. Adam (1972), 51 Ill. 2d 46, 48 (quoting 8 J. Wigmore, Evidence § 2292 (McNaughton rev. ed. 1961)), cert. denied (1972), 409 U.S. 948, 34 L. *542 Ed.2d 218, 93 S. Ct. 289.) We agree with the Administrator’s argument that the communication regarding Casey’s conduct does not meet this definition. The record does not suggest that this information was communicated by Forsberg to the respondent in confidence. We have held that information voluntarily disclosed by a client to an attorney, in the presence of third parties who are not agents of the client or attorney, is not privileged information. (People v. Williams (1983), 97 Ill. 2d 252, 295, cert. denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364.) In this case, Forsberg discussed the matter with respondent at various times while her mother and her fiancé were present. Consequently, unless the mother and fiancé were agents of respondent’s client, the information communicated was not privileged. Moreover, we have also stated that matters intended by a client for disclosure by the client’s attorney to third parties, who are not agents of either the client or the attorney, are not privileged. (People v. Werhollick (1970), 45 Ill. 2d 459, 462.) The record shows that respondent, with Forsberg’s consent, discussed Casey’s conversion of her funds with the insurance company involved, the insurance company’s lawyer, and with Casey himself. Thus, under Werhollick and probably Williams, the information was not privileged.
Though respondent repeatedly asserts that his failure to report was motivated not by financial gain but by the request of his client, we do not deem such an argument relevant in this case.This court has stated that discipline may be appropriate even if no dishonest motive for the misconduct exists. (In re Weinberg (1988), 119 Ill. 2d 309, 315; In re Clayter (1980), 78 Ill. 2d 276, 283.) In addition, we have held that client approval of an attorney’s action does not immunize an attorney from disciplinary action. (In re Thompson (1963), 30 Ill. 2d 560, 569; People ex rel. Scholes v. Keithley (1906), 225 Ill. 30, 41.) We *543 have already dealt with, and dismissed, respondent’s assertion that his conduct is acceptable because he was acting pursuant to his client’s directions.
Respondent does not argue that Casey’s conversion of Forsberg’s funds was not illegal conduct involving moral turpitude under Rule 1-102(a)(3) or conduct involving dishonesty, fraud, deceit, or misrepresentation under Rule 1-102(a)(4). (107 Ill.2d Rules 1-102(a)(3), (a)(4).) It is clear that conversion of client funds is, indeed, conduct involving moral turpitude. (In re Levin (1987), 118 Ill. 2d 77, 88; In re Stillo (1977), 68 Ill. 2d 49, 54.) We conclude, then, that respondent possessed unprivileged knowledge of Casey’s conversion of client funds, which is illegal conduct involving moral turpitude, and that respondent failed in his duty to report such misconduct to the Commission. Because no defense exists, we agree with the Hearing Board’s finding that respondent has violated Rule 1-103(a) and must be disciplined.
The third issue concerns the appropriate quantum of discipline to be imposed in this case. The Administrator contends that respondent’s misconduct warrants at least a censure, although the Hearing Board recommended a private reprimand and the Review Board recommended dismissal of the matter entirely. In support of the request for a greater quantum of discipline, the Administrator cites to the purposes of attorney discipline, which include maintaining the integrity of the legal profession and safeguarding the administration of justice. The Administrator argues that these purposes will not be served unless respondent is publicly disciplined so that the profession will be on notice that a violation of Rule 1-103(a) will not be tolerated. The Administrator argues that a more severe sanction is necessary because respondent deprived the Commission of evidence of another attorney’s conversion and thereby interfered with *544 the Commission’s investigative function under Supreme Court Rule 752 (107 Ill.2d R. 752). Citing to the Rule 774 petition (107 Ill.2d R. 774) filed against Casey, the Administrator notes that Casey converted many clients’ funds after respondent’s duty to report Casey arose. The Administrator also argues that both respondent and his client behaved in contravention of the Criminal Code’s prohibition against compounding a crime by agreeing with Casey not to report him, in exchange for settlement funds.
In his defense, respondent reiterates his arguments that he was not motivated by desire for financial gain. He also states that Forsberg was pleased with his performance on her behalf. According to respondent, his failure to report was a “judgment call” which resulted positively in Forsberg’s regaining some of her funds from Casey.
In evaluating the proper quantum of discipline to impose, we note that it is this court’s responsibility to determine appropriate sanctions in attorney disciplinary cases. (In re Levin (1987), 118 Ill. 77, 87, citing In re Hopper (1981), 85 Ill. 2d 318, 323.) We have stated that while recommendations of the Boards are to be considered, this court ultimately bears responsibility for deciding an appropriate sanction. (In re Weinberg (1988), 119 Ill. 2d 309, 314, citing In re Winn (1984), 103 Ill. 2d 334, 337.) We reiterate our statement that “`[w]hen determining the nature and extent of discipline to be imposed, the respondent’s actions must be viewed in relationship “to the underlying purposes of our disciplinary process, which purposes are to maintain the integrity of the legal profession, to protect the administration of justice from reproach, and to safeguard the public.” (In re LaPinska (1978), 72 Ill. 2d 461, 473.)'” In re Levin (1987), 118 Ill. 2d 77, 87, quoting In re Crisel (1984), 101 Ill. 2d 332, 343.
*545 Bearing these principles in mind, we agree with the Administrator that public discipline is necessary in this case to carry out the purposes of attorney discipline. While we have considered the Boards’ recommendations in this matter, we cannot agree with the Review Board that respondent’s conduct served to rectify a wrong and did not injure the bar, the public, or the administration of justice. Though we agree with the Hearing Board’s assessment that respondent violated Rule 1-103 of the Code, we do not agree that the facts warrant only a private reprimand. As previously stated, the evidence proved that respondent possessed unprivileged knowledge of Casey’s conversion of client funds, yet respondent did not report Casey’s misconduct.
This failure to report resulted in interference with the Commission’s investigation of Casey, and thus with the administration of justice. Perhaps some members of the public would have been spared from Casey’s misconduct had respondent reported the information as soon as he knew of Casey’s conversions of client funds. We are particularly disturbed by the fact that respondent chose to draft a settlement agreement with Casey rather than report his misconduct. As the Administrator has stated, by this conduct, both respondent and his client ran afoul of the Criminal Code’s prohibition against compounding a crime, which states in section 32-1:
“(a) A person compounds a crime when he receives or offers to another any consideration for a promise not to prosecute or aid in the prosecution of an offender. (b) Sentence. Compounding a crime is a petty offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 32-1.)
Both respondent and his client stood to gain financially by agreeing not to prosecute or report Casey for conversion. According to the settlement agreement, respondent would have received $17,000 or more as his fee. If Casey had satisfied the judgment entered against him for failure *546 to honor the settlement agreement, respondent would have collected approximately $25,588.
We have held that fairness dictates consideration of mitigating factors in disciplinary cases. (In re Yamaguchi (1987), 118 Ill. 2d 417, 428, citing In re Neff (1980), 83 Ill. 2d 20.) Therefore, we do consider the fact that Forsberg recovered $10,400 through respondent’s services, that respondent has practiced law for 11 years with no record of complaints, and that he requested no fee for minimum collection of Forsberg’s funds. However, these considerations do not outweigh the serious nature of respondent’s failure to report Casey, the resulting interference with the Commission’s investigation of Casey, and respondent’s ill-advised choice to settle with Casey rather than report his misconduct.
Accordingly, it is ordered that respondent be suspended from the practice of law for one year.
Respondent suspended.
The foregoing decision is the LAW OF THE STATE OF ILLINOIS. Unfortunately, like so much of the enforcement of the RULE OF LAW the law applies to only those who have no clout (i.e., influence – especially political or judicial influence). Thus, when Lanre Amu reports that Judge X has a conflict of interest and is on the Board of Directors of the defendant, and her brother is the defendant’s attorney, even though CRAINS CHICAGO BUSINESS independently makes the identical averment, Amu is declared a danger to the public and is disciplined.
In the Sallas cases cited supra the Guardianship scandal is highlighted! The all-out full court press to facilitate the HUMAN TRAFFICKING IN GRANDMA is exposed. The mandate of Himmel is ostentatiously ignored. Let me provide you with an example.
Amongst the Laws of the State of Illinois are two major statutes that address Guardianship, and the relationship of the world with a person allegedly protected by Guardianship. 755 ILCS 5/11a – 3b provides the Court with the authority and the criteria for appointing a guardian, to wit:
(b) Guardianship shall be utilized only[1] as is necessary to promote the well-being of the person with a disability, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual's actual mental, physical, and adaptive limitations. The order shall conform with Sections 11a-12 and 11a-14. (Source: P.A. 102-72, eff. 1-1-22.)
The words: “only to the extent necessitated by the individual's actual mental, physical, and adaptive limitations “are consistent with the 14th Amendment limitations on Guardianship and assure society unequivocally that Guardianship will not be human trafficking. Unfortunately, such is exactly what has occurred because Himmel and the authorizing statute have been ignored. In fact, what has happened is the Court and Mr. Sallas (in the Sallas cases) have been and are being held hostage.
On January 25, 2018 according to the sworn pleadings filed in the Circuit Court by the Byline Bank in case 2019 CH 13960 the Byline Bank in direct violation of the provisions of 755 ILCS 5/11a – 22 had Mrs. Sallas, a person for whom a Guardian had been appointed due to the court order finding her to be disabled, sign COMMERCIAL LOAN documents connoting an approximately $175,000.00 loan balance secured by her home in Skokie, Illinois.
Amongst the Laws of the State of Illinois was 755 ILCS 5/11a – 22 which in words and phrases stated:
(755 ILCS 5/11a-22)(from Ch. 110 1/2, par. 11a-22) Sec. 11a-22. Trade and contracts with a person with a disability. (a) Anyone who by trading with, bartering, gaming or any other device, wrongfully possesses himself of any property of a person known to be a person with a disability commits a Class A misdemeanor. (b) Every note, bill, bond or other contract by any person for whom a plenary guardian has been appointed or who is adjudged to be unable to so contract is void as against that person and his estate, but a person making a contract with the person so adjudged is bound thereby. (Source: P.A. 99-143, eff. 7-27-15.)
On February 15, 2018 the record in case 2007 P 536o reveals that attorneys for Charles P. Golbert appeared before the Honorable S. Boliker, one the judges of the Circuit Court of Cook County, Illinois and by Petition informed the Court that their ward had a loan with the Byline Bank in the amount of approximately $175,000.00 and they had negotiated an extension on the loan that was beneficial to their ward.
The representation was a bold-faced prevarication! The Guardian knew of should have known that 3 weeks earlier, in direct violation of 755 ILCS 5/11a – 22 the Byline Bank had secured the signature of Mrs. Sallas well knowing of the criminality of said act. There was no current negotiation at said time – in fact, the criminal act had been completed! The Guardian, its attorneys, the Guardian ad Litem, and the hanger on attorneys who for some reason appear and participate in this Guardianship proceeding in direct contravention of the marital and other rights of Mrs. Sallas’ spouse of more than 50 years ALL HAD KNOWLEDGE that at some relevant time of the CRIMINAL ACTS of the Byline Bank and the morally reprehensible concealment of them by Mr. Charles P. Golbert, It is suggested that each of attorneys participated in the 'cover up' and violation of FINANCIAL ELDER ABUSE LAWS including section 22.
It is suggested that the actions of Byline Bank in addition to violating 755 ILCS 5/11a – 22 the very same actions may have violated other Federal and State Criminal acts including but not limited to Mail and Wire fraud. OF COURSE, the disciplinary process did not and apparently does not apply to any of these special judicial souls! Even the verified complaint filed by the BYLINE BANK in case 2019 CH 13960 did not induce any of the high moral criteria mandated by the guardian, the Judges involved, or any of the other attorneys hanging around the FINANCIAL ELDER ABUSE proceedings going on in the Cook County Circuit Court.
The outrageous domestic terrorism of record in case 07 P 5360 and 2019 CH 13960 continued unabated augmenting itself as Mr. and Mrs. Sallas refused to attorn to their fates! Cries for H E L P were and are ignored, and today, Mrs. Sallas, who prior to being victimized by the violation of 755 ILCS 5/11a – 22 had all her teeth, was mobile, and had the companionship, love, and marriage relationship with her husband of more than ½ a century, today is monitored so that she cannot talk to her husband, and unvetted people who desire to talk with her (such a Journalist JP). Vivacious Amy Sallas no longer is mobile and has had her teeth removed. Indeed, in case 07 P 5360 the Guardian stands guard to make certain that no reasonable, necessary, or beneficial activity should befall Mrs. Sallas. (Judge Boliker, has been heard to proclaim that Mrs. Sallas has not been deprived of her liberty and her family can visit at will – Mr. Sallas apparently even after half a century is not included in the definition of family, even though 100% of the family savings and family assets are MARITAL PROPERTY and earned by the joint efforts of both parties to the marriage.)
Very troubling is tomorrow’s MOTION filed by the Guardian. To be candid – it has all the same attributes as the MOTION brought before Judge Boliker on February 15, 2018.
Pursuant to Himmel, and as a compliance by all the individuals who manifest a desire for the RULE OF LAW to prevail in the Courthouse we submit to LAW ENFORCEMENT, and the disciplinary commissions the following facts, to wit:
In 2018 as part of the unwanted, un=necessary, unauthorized ex=parte, ultra vires, effective only in the limited jurisdiction of the Circuit Court of Cook County, Illinois secret dissolution of marriage of Sallas, the guardian filed a claim that a vehicle (marital property) was stolen. A claim was made and approximately $4000.00 was recovered the guardian.
As the vehicle was not stolen and the Guardian was so informed, it was inevitable that at some point in time the vehicle would be noticed by local law enforcement. Indeed, it was and was - even though not missing or stolen – was towed and sits now drawing storage charges. It appears that even though the vehicle is clearly marital property and the Guardian’s authority could not and was not extended to marital property the motion seeks to address the vehicle’s future without addressing the clear ULTRA VIRES conduct of the guardian and the fact that falsely reporting marital property stolen was neither reasonable, necessary, or beneficial to Mrs. Sallas. In fact, the action of the Guardian is an infringement on the property rights of Mr. Sallas. The vehicle (as the 8 million plus in savings that has disappeared as the result of this guardianship) is in fact marital property that the parties earned over the past 50 plus years by their joint efforts.
The Guardian, in my estimation appears to be appearing before Judge Boliker to exert undue influence on her to retro=actively obtain her signature on a Court order that can be used to exonerate the knowing and wrongful filing of a false insurance claim, fraudulent claiming that marital property (over which the guardian could not and was not given authority) had been stolen.
Pursuant to the requirement of 18 USCA 4 and the Illinois Supreme Court decision of HIMMEL (the opinion being reproduced supra) the actions of Guardian and co-conspirators is reported to LAW ENFORCEMENT and to the disciplinary authorities. If HIMMEL has meaning and is not just patently deceptive cake dressing the gambit of the Guardian will be investigated and dealt with.
IT SHOULD BE NOTED THAT even though it appears that the Guardian acts as if it were the alter-ego of the ward, it is not. It is limited by the 14th Amendment to the United States Constitution and the words of 755 ILCS 5/11a – 3b.
Guardianship shall be utilized only as is necessary to promote the well-being of the person with a disability, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual's actual mental, physical, and adaptive limitations.
It is axiomatic that the guardian even within the parameters of section 3b is still limited to actions that are: 1) reasonable, 2) necessary, and 3) beneficial to the ward. Filing false insurance claims or the cover-up of wrongful actions in my humble opinion does not meet that criterion.
[1] When a guardian is appointed, the ward does not forfeit all her rights, privileges and immunities. The word may be adjudicated to have certain disabilities. Under the 14th Amendment to the UNITED STATES CONSTITUTION only as in regard to these specific disabilities (if any) does the guardian obtain any jurisdiction. The free will of the ward (as well as all rights, privileges and immunities) are retained. No forfeiture can occur because of disability as disability is NOT A CRIME.
Thus, the appointment of a guardian is limited strictly to assisting the ward on as is 1) necessary, 2) reasonable, and 3) actually beneficial to the ward. The guardian does not become the alter-ego of the ward, nor is the guardian given carte blanc to run roughshod over the savings and assets of the ward. Certainly, the guardian has no authority whatsoever to in any way exercise any dominion or control over the assets of the ward’s spouse. Property remains intact and marital property remains out of reach of the Guardian, unless special circumstances exist that are adjudicated in accordance with due process protections before the Domestic Relations division upon property, complaint, notice and hearing. IN SIMPLE WORDS – the guardian is not the alter-ego of his ward and does not become the reincarnation of the ward. The guardian’s authority is strictly limited.
In Estate of Christo v. Law Offices of Thomas Leahy, 2021 IL App (1st) 200575-U, the Appellate Court reversed the entry of judgment in favor of a law firm in a legal malpractice case filed by the Public Guardian. The Leahy Firm had represented Barbara Rose Christo, Peter Christo and Fay Christo in a wrongful death action arising out of the death of their father, Thomas Christo.
The case settled and each plaintiff received approximately $550,000. The complaint alleged that Peter Christo misappropriated the funds belonging to his sister, Barbara, who was disabled. The legal malpractice complaint alleged that the Law Firm was aware that Barbara had significant intellectual disabilities but it failed to seek a guardianship for Barbara or otherwise protect her interest in her share of the settlement funds.
After a bench trial the trial court ruled in favor of the Law Firm on all claims holding that the Law Firm met the duty of care and that Barbara could not prove proximate causation. Barbara appealed on several grounds. The Appellate Court reversed the judgment on the ground that the trial court had misstated the evidence, in particular the testimony of a Doctor who testified that Barbara was disabled.
The court held that there was sufficient evidence introduced in the record that Barbara was disabled, the Law Firm should have known she was disabled and that the Law Firm had a duty to inform the trial court of Barbara’s disability.
Comment: this case is significant as it makes it clear that a law firm has a duty to inform the court if its client has an intellectual disability.
Should you have a question about a legal malpractice case, do not hesitate to contact us.
ALLEGED MISCONDUCT The Administrator charged Respondent with the following misconduct: (1) in representing a client, engaging in conduct intended to disrupt a tribunal; (2) making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge; and (3) engaging in conduct that is prejudicial to the administration of justice, in violation of Rules 3.5(d), 8.2(a), and 8.4(d) of the Illinois Rules of Professional Conduct (2010). EVIDENCE The Administrator presented testimony from Respondent as an adverse witness. The Administrator’s Exhibits 1-13 were admitted into evidence. (Tr. 16). Respondent testified on her own behalf and presented Michael Fields as a character witness. Respondent’s Exhibits 1.1-1.3, 2.1-2.3, 3.1, 3.3, 3.4, 5.9, 5.10, 5.28, 5.30, 5.31, 5.33-5.38, 6.1-6.3, 9.23, 10.1-10.5, 11.3, 11.5, 11.7, and 11.8 were admitted into evidence. (Tr. 487-521).1 FINDINGS OF FACT AND CONCLUSIONS OF LAW The Administrator bears the burden of proving the charges of misconduct by clear and convincing evidence. In re Thomas, 2012 IL 113035, ¶ 56. Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less stringent than proof beyond a reasonable doubt. People v. Williams, 143 Ill. 2d 477, 577 N.E.2d 762 (1991). The Hearing Board assesses witness credibility, resolves conflicting testimony, makes factual findings, and determines whether the Administrator met the burden of proof. In re Winthrop, 219 Ill. 2d 526, 542-43, 848 N.E.2d 961 (2006). Respondent is charged with making false or reckless statements impugning Magistrate Judge Finnegan’s integrity, engaging in conduct intended to disrupt a tribunal, and engaging in conduct prejudicial to the administration of justice, in violation of Rules 3.5(d), 8.2(a) and 8.4(d). A. Summary The Administrator proved by clear and convincing evidence that Respondent sent three emails to Magistrate Judge Finnegan’s email account containing statements about Magistrate Judge Finnegan’s integrity that were false or made with reckless disregard as to their truth or falsity. By sending the inappropriate emails, particularly after being instructed not to do so, Respondent engaged in conduct that disrupted the tribunal and prejudiced the administration of justice. B. Admitted Facts and Evidence Considered Respondent has been licensed to practice in Illinois since 2006. She is also licensed in Texas and Michigan. (Tr. 54-55). Barry Epstein hired Respondent in 2012 to represent him in a dissolution proceeding filed by Paula Epstein. In 2014, Respondent filed a complaint on Barry’s behalf in the United States District Court for the Northern District of Illinois, alleging that Paula and her attorney, Jay Frank, violated federal law by accessing Barry’s private emails without his authorization. (Tr. 55). Magistrate Judge Sheila Finnegan (Judge Finnegan) supervised discovery in the federal proceeding. Judge Finnegan maintained an email account known as the “proposed order account”. The charges before us arise from three email messages Respondent sent to the proposed order account and others involved in the Epstein proceedings. (Tr. 56). Respondent sent the first email at issue on April 18, 2017, after Judge Finnegan denied her emergency motion for an extension of time to take Paula’s deposition. Respondent sent the email to the proposed order account, opposing counsel Scott Schaefers, and Scott White, the courtroom deputy. It stated as follows in relevant part: Today in court, no matter what I said to you, you had already made up your mind, and even questioned my sincerity with regard to my preparation for upcoming trial.
. . . since the beginning, you never seem to doubt anything he [Schaefers] says, as you appear to doubt me. Still, I stated to you in open court that “I don’t want to be hated” for doing my job, but it sure seems that way, as I never get a break. Scott is the lucky guy who senses same as he can just pick up the phone to call you knowing he will get his way…or for so-called the Posner Defense2.
It’s not fair that my client (and I) is [sic] being treated badly for suing his wife/ex wife, and everyone is protecting Paula – why? Since when does “two” wrongs make a “right”? [sic] How am I to prove my case if I am not given a fair chance to do my work, properly. (Adm. Ex. 1). The following day, Judge Finnegan instructed Respondent that the parties were not to use the proposed order account to argue the merits of a motion, share their feelings about a ruling, or talk generally about the case with her. She told Respondent her email was improper and directed her not to send any such emails in the future. (Adm. Ex. 1). Respondent received and understood Judge Finnegan’s instructions. (Tr. 69-70). On June 15, 2017, Respondent filed a motion to extend discovery and for leave to depose Jay Frank. Judge Finnegan denied the motion. Allison Engel, Judge Finnegan’s law clerk, emailed a copy of Judge Finnegan’s order to Respondent and Schaefers at 6:37 p.m. on June 23, 2017. Two hours later, Respondent sent an email to Engel, Schaefers, and the proposed order account which stated as follows, in relevant part: I’m very upset, I do not agree with Judge Finnegan’s order and I will depose the former co-defendant, Jay Frank, despite the fact this court is protecting him and his co-conspirer! Scott Schaefers had no standing to challenge my subpoena to depose Jay Frank! I’m entitled to depose him! And I will call him to testy [sic] at trial to show the world what a corrupt lawyer he is! And the judges who protect this criminal by squeezing the discovery deadlines!!! No no no! This is outrageous order of Judge Finnegan and it will be addressed accordingly! Judges are helping the criminal to escape punishment by forcing to shorten all deadlines!!! This Judge is violating my client’s rights first by the truncated discovery deadlines and now helping Plaintiff to escape punishment for wrongs she committed! I’m outraged by the miscarriage of justice and judges are in this to delay and deny justice for my client! I’m sickened by this Order!!! (Adm. Ex. 2). On June 26, 2017, Respondent sent another email to Engel, Schaefers, and the proposed order account, which stated as follows in relevant part: Plaintiff’s motion is not late just because this court decided not to extend discovery deadlines, to protect the Defendant! I have asked this court numerous times for an extension of all cutoff deadlines, without avail. Take this into account when drafting your flawed order.
For anyone to insult me in this degree calls questions [sic] this court’s sincerity and veracity. How dare you accuse me of not having looked at the SC docket regularly.
How do you know I did not see the SC order???? Where do you get this information? Exparte communications with Defendant’s attorney, Scott? – smearing dirt behind my back? The more I read this order, again and again, I am sick to my stomach, and I get filled with anger and disgust over this ‘fraudulent’ order by this court!
You both, Allison and J. Finnegan, have done me wrong, and depicted me very poorly in your public order. How dare you do that to me?! What goes around comes around, justice will be done at the end! I wonder how you people sleep at night? Including Scott! (Adm. Ex. 3). On June 27, 2017, Judge Finnegan entered an order admonishing Respondent for violating her directives related to the proposed order account and making highly inappropriate statements. Judge Finnegan directed Respondent to immediately cease all email communication with her and her staff. (Adm. Ex. 4).
End pertinent portions
I just don’t understand why the judge had to file a disciplinary complaint over 3 emails which simply pointed out that Attorney Lane believed that the Judge was favoring opposing counsel over her client. It is not uncommon for judges to take a husband’s side over the wife’s side or vice versa, but that should not happen. And in reality, the discovery period was in fact uncommonly short. That should not happen either.
We all know what to do when someone emails you and you don’t like the person, their email, their opinions and even the horse they rode in on. You block them. It takes only two key strikes, click on block and confirm and you’re done. Even children as young as 5 know how to do this. But this judge can’t do tht and just move on? Obivously she has an ego problem, is in fact biased and a goddess complex where she can’t ever be criticized but she will wait and listen for criticism and then file a bar complaint against the attorney that is merely pointing out flaws in what the judge is doing.
Judges cannot and should not be immune from criticism. They are not supposed to read books or watch the news, so who will them them when they are clearly out of bounds and no one is noticing it.
And in addition, they were all lawyers, and you cannot insult a lawyer, no matter how hard you try. They got the no criticism vaccine soon as they took their judicial oath.
If this judge does not like an attorney’s emails, she has the right to block her. No judge has to listen to anything from an attorney that is not in a pleading.
As for routine scheduling matters, the judges shouldn’t be getting into that either. They all have assistants.
Three emails criticizing a judge over bias should also be a constitutional right.
The first amendment grants the right to criticize your government, with almost no exceptions.
Free speech is subject to the standard of “strict scrutiny” which requires:
a compelling govt interest (and exactly what is compelling about controlling anyone’s right to criticize a judge regarding bias?)
That there is no lesser restrictive means to controlling the speech (assuming that there is a compelling reason in the first place). Certainly there is an easy, simple means for judges to control speech they don’t like, it’s called blocking an email.
That the action taken will be effective and will work.
Attorneys do not lose their ability to criticize a judge just because they have a law license.
The 9 month discipline is insane in light of the fact the judge could have easily blocked the attorney and let the judge’s assistant deal with the attorney. These emails were directed to the judge’s assistant regardless. The assistant’s job clearly is not to relay complaints to the judge, she should direct the attorney instead to the (worthless) JIB or Judicial Inquiry Board. And then they will contact the Judge about the complaints, but isn’t this the same thing? Does it really matter that one step was skipped in all of this.
In any case, this whole matter is ridiculous and should have never happened in the first place. Attorney Lane apologized to the Judge but the Judge never apologized to Lane about reporting her over 3 emails that she didn’t have to read or see, that was her choice. Bad choice.
But the real upshot in all of this is that attorneys routinely steal thousands of dollars from the public, do nothing and then client complains to the ARDC and the ARDC does absolutely nothing. Cases in point: Anthony Phillips paid attorney Joanne Bruzgul some $22k for a probate case. She filed a fee petition for $60,000 and got paid in full. Anthony Phillips should have been refunded $22k by Bruzgul and he sent a complaint and a demand for an accounting from the ARDC. ARDC does bupkis; 2) In the estate of Alice Gore attorney Miriam Solo wants to be paid $60k, but the estate has already been looted and down to zero. So she gets the probate court to rubber stamp a false judgment (alleging daughter stole $60k from the accounts, but the accountings do not show any theft), so what does the ARDC do about the fake $60k judgement? again nada and zilch; 3) in the infamous Mary Sykes case, the estate is looted, but attorney Peter Schmeidel has a legal bill for $260k, so what does he do? Another fake judgment against daughter Gloria Sykes alleging she stole $260k from the estate, but she didn’t steal anything, these were insurance proceeds from a policy she paid for, on a house that was hers for mold damage and breast cancer she got from the mold.
Attorneys steal all over the place, but go complain to the ARDC and what will you get? zilch and zero.
Make a federal district court judge shed a tear over 3 emails complaining of bias and improper conduct by a judge, what do you get? 9 months of discipline.
And the way the ARDC goes on and on about how the statements were false (no, they were not, the ARDC wasn’t there) and impugned the integrity of the court (which likely had no integrity in the first place) and “disrupted” a tribunal (really? two keystrokes to hit the block feature? really?) is beyond the pale.
Everyone should have the free and open right to criticize a judge when she wanders into the territory of patent bias and corruption.
Now that should be protected speech.
And the ARDC should get off it’s duff and stop attorneys from openly stealing thousands from clients and the public.
We all know what’s going on. Neither judges nor the ARDC can hide their currying favor with judges, hiding obvious crimes and gross failure to protect the public.
Please email me or Sonya if you can help her with her laundry. Her employer has told her she must wear freshly laundered clothing to work and she has no car or laundry facilities that are near and/or she can afford and walk to. She has lower hip and back pain when she walks. If anyone can reach out to her and help her, please email her at sonyawisdom19@yahoo.com. thank you for reading this and thinking about helping her
Prob a t e Cou rt Vict im Support Group It is true that there is trauma when you are a petitioner, respondent, defendant and/or plaintiff in Court. Your trauma is NOT unique, and you are NOT alone. We are here with you in the dark, on the phone, in your closet crying, in your bed unable to get out, we are here. Do you have proof that your lawyer lied court appointed attorney lied to the Court, no matter how big or small? You are not alone. Do you feel your rights have been violated? You are not alone. Attorneys appointed to your case work for the ward. When the appointed attorney misrepresents to the Court that is punishable by the law. Report the attorney to the authorities as an upstanding citizen. Soon enough the authorities will investigate the lawless as they should. Did you know that you have a right to have a fair and unbiased investigation in your case by the attorney appointed in your case? Did you know that according to this law you have a right to due process? 42 U.S.C. § 1983 (Right to Family – Due Process) Did you know according to this law you have a right to parent your children. Glucksberg, 521 U.S.702 (1997), Prob. Code, §§ 1510, subd. (a), 1514, subds. (a), (b). In Vaughan: The trial court denied the [grandparents’] petition because the mother had not intended to abandon the children. [Vaughan, supra, 207 Cal. App. 4th 1055 at 1056, emphasis added] Did you know according to this law you have a right to be a family? 42 U.S.C. § 1983 (Right to Family – Equal Protection) Prob. Code, §§ 1510, subd. (a), 1514, subds. (a), (b). In Vaughan: The trial court denied the [grandparents’] petition because the mother had not intended to abandon the children. [Vaughan, supra, 207 Cal. App. 4th 1055 at 1056, emphasis added] this also covers elderly parent with an adult child Petitioning to be their caregiver. Did you know the higher court has decided that state court has no authority to separate siblings without a medical professional opinion documenting the effects of that separation. [Williams supra, 88 Cal. App. 4th 808 at 809] In re Marriage of Williams, 88 Cal. App. 4th 808, 105 Cal. Rptr. 2d 923, 924 (2001) (“Williams”) and Guardianship of Vaughan, 207 Cal. App. 4th 1055, 1056, 144 Cal. Rptr. 3d 216, 217 (2012) (“Vaughan”). Let us begin with Williams, a case in which: [A]ppellant father appealed an order of the Santa Barbara County Superior Court (California) permitting two of four children to move out of the state with respondent mother. [Williams, supra, 88 Cal. App. 4th 808 at 809] In Williams: The lower court ordered that the oldest child and the youngest child could move to Utah with appellant, while the middle children were to remain in California with respondent. Appellant argued that the lower court abused its discretion because it separated siblings from each other. Respondent argued that the lower court abused its discretion with respect to the middle children because there was no basis for distinguishing between them and their siblings. The instant court concluded that the lower court abused its discretion because the record did not show compelling circumstances warranting the separation of the siblings, as there was no evidence in the record of the impact that separation would have on these children. In the absence of such evidence, the instant court could not affirm the lower court’s order even on the deferential abuse of discretion standard. [Williams, supra, 88 Cal. App. 4th 808 at 809, emphasis added] Williams reversed thus refusing to separate the children. The matter was remanded for reconsideration in light of the new rule the court announced, i.e., that in the absence of evidence regarding the effect of separation on the children, it is an abuse of discretion to separate them. Turning to Vaughan, that case too is easily distinguishable from this case. In Vaughan, Appellants, two minor children, sought review of a judgment from the Superior Court of Trinity County (California), which denied a petition by respondent grandparents for a probate guardianship over the children pursuant to Prob. Code, §§ 1510, subd. (a), 1514, subds. (a), (b). In Vaughan: The trial court denied the [grandparents’] petition because the mother had not intended to abandon the children. [Vaughan, supra, 207 Cal. App. 4th 1055 at 1056, emphasis added] In Vaughan, the Court had to balance between parental rights versus the children’s apparent preference to live with their grandparents. While the Court presumably considered the children’s wishes, it was parental rights that carried the day, as was appropriate. A parent’s right to the care and companionship of his or her child is a fundamental constitutional right. See e.g., Troxel v. Granville, 530 U.S. 57 (2000). :
ProbateCourtFreedom
If you need someone to talk to and you feel alone. Text Donecia Augustus (310) 663-9527 – we have a group of parents and victims of Probate Court Abuse, if we can help you or support you, we will. The Justice Channel – http://www.tjcla.com The Ugly Judge – http://www.uglyjudge.com Court Victims National Data Base – http://www.courtvictim.com This flyer is not intended to be legal advice. We strongly recommend consulting with an attorney licensed in your state or area.
If you have a Samsung Refrigerator and the ice maker and/or the cooling tower is freezing over repeatedly, call 1-800-SAMSUNG and demand a full refund. You may have to talk to 2 or 3 agents to get a promise of a refund, but keep on calling them back. Mention to the agent on the phone that these problems with their refrigerators are all over the internet, they are common and you want your money back. Buy something else. If you don’t receive a full refund in 4 to 6 weeks, go ahead and sue them in small claims court. These refrigerators are a defective product in a defective condition. You will want to mention your state’s Deceptive Trade Practices Act and/or Consumer Fraud Act in your complaint. You can sue the store, the distributor and the manufacturer (Samsung). If you have any repair bills, food spoilage receipts or drug spoilage receipts, bring these to court and the judges will typically reimburse you for these damages. Most states allow you to collect extra damages and attorneys fees, if the conduct is contemptuous, and this certainly is. You might have the right to a jury trial. You can sue for breach of contract, consumer fraud, etc. Ask for punitive damages and attorneys fees in the complaint because the defects are well know and Samsung has not solved the problem in years. If you have problems drafting a complaint, let me know and I will draft a general one for and publish it on this blog so you can see a sample complaint for your state( in the US court system only). These refrigerators cost $3,000 to $5,000 out of the box, and there is no reason they should not function perfectly well for 8 to 10 years minimum.
If you want to try to fix your refrigerators yourself, there are plenty of good videos on youtube.com on how to correct problems such as: cooling tower freezing over, ice maker freezing over, drain clogged, etc. Bens-appliances.com has repair kits for these problems now. Call them and watch their youtube videos.
Fierle ruined the lives of so many, yet the media is silent on her coverage. She had over 450 wards, and many, many complaints–complaints that were generally left untouched and uninvestigated by the Florida authorities.
It wasn’t until she directly caused the death of one man, by insisting his feeding tube be capped, that the authorities finally stepped in.
So where is the media coverage of this trial and the outrage by the families?
For those of you following the Sallas case, the judge has issed some sort of special invitation to have Dean Sallas appear before her, together with all attorneys at 9 am.
No, I don’t think it will be to congratulate him or give him sympathy.
An investigative reporter has been following this case and publishing about it, because it is soooo egregious all over the internet. Maybe the Suntimes, Tribune or Crain’s Chicago Business will pick it up for further local investigation.
As you will recall, Mr. Sallas is married to Amelia. Amelia suffered a stroke about 12 years ago while a work. She was a teacher of the highest caliber teaching in an affluent school district. Her retirement income is a tasty $7k+ for the hungry probate court crowd of vultures, liars and thieves. With proper treatment and medicines, which Dean saw to, Mrs. Sallas became fully functional again about 14 months later. She resumed fully her household duties of shopping, cleaning, cooking and grocery shopping. No matter to the probate court, like the hungry snakes in the grass they were, they struck at the couple hard and would not let go. The coils around them continued to tighten and squeeze every penny out of them, like a boa constrictor.
Mr. Sallas amassed a sizeable rental income property collection of $9 million. The probate court ruined that. All of that is gone now. Then they went after Mrs. Sallas and put her in a lock down facility. I believe they removed all her teeth and implanted a feeding tube and they also keep her wheelchair bound. All she does is cry out for her husband, whom she loves and adores.
Next they went after the condo and filed a fake eviction proceeding against the tenant and obtained an exparte judgment for eviction without notice to Dean or his attorney. Opposing counsel claimed Dean’s attorney “often did not show up” (because of course they were not serving her” and would tell the judge “Diana never filed an appearance (although she did and opposing counsel knew it and it was in the court records” and the court had the records sealed so we still don’t know anything about the docket sheet or what really happened or what the documents were or the court dates that were held secretly. Secret hearings and secret orders then issued from the condo case.
Finally, the OPG or office of public guardian renewed the mortgage on the Sallas’ marital residence and 1) made it a commercial loan with none of the safeguards of a residential mortgage; 2) had Amelia sign the renewal documents despite the fact she was adjudicated a disabled adult; 3) the OPG attorney Cassanova appeared at that proceeding and did nothing except bill the estate while Dean valiently fought the proceedings on his own; 4) likely violated the elder finanacial abuse law which would make all of this a class D felony because in essence, it is a conspiracy to defraud the couple of a highly valuable $500k+ home in Skokie, Illinois.
Now they have the Village of Skokie going after Dean by giving him grass cutting tickets for the grass being too long or too short, parking 1″ over the sidewalk, etc. In fact, last Friday while there was an important status call on the condo case, he had been called to the VOS for some paltry ticket that was dismissed in the end.
Judge Mescall apparently has “something important” to talk to Dean about on Monday. Most likely it is the internet attention that the case has garndered.
The case should be dismissed. Dean has tendered 8 checks to the HOA marked “payment in full” and under the law of waiver, if those checks were cashed, then the case must be tossed.
Now from Kenneth Ditkowsky and his take on the case:
There are few cases that stand out as being examples of *******. This Sallas
proceeding is amazing and appears to parallel the cases that you and your group are fighting nationwide.
In this case, a senior citizen and his wife (own a condominium) in a Chicago downtown building. For reasons unknown, the association engaged in unsolicited harassment of Mr. and Mrs. Sallas and in particular Mr. Sallas. Mr. and Mrs. Sallas have a tenant in the condominium who has been living in the unit as a tenant for about 34 years. Suddenly, the association started a campaign of harassment. They complained that they did not have a copy of the tenant’s lease and started to fine Sallas. The fact that after 34 years and the upheaval of the FINANCIAL ELDER ABUSE rendered him unable to file his papers did apparently bother whomever was promulgating the harassment.
Suddenly, the association filed a totally inappropriate Forcible Entry and Detainer action. (Let me be clear – I am biased as I dealt with obnoxious condominium associations who act in a discriminatory manner – This association apparently had a change of heart part way through and accepted settlement.)
Dean filed a Jury Demand, AND ran into the usual problem of finding a lawyer to represent his interests. Dean continued to pay the monthly assessment and the same was accepted by the association.
From time to time Dean talked with the management company and 8 checks were negotiated by the Condominium Association that bear and endorsement acknowledging the acceptance of those check in FULL SETTLEMENT OF THE DISPUTE. Dean continues as he had for 34years, collected his rent and paid the assessment.
The Condominium accepted 8 checks acknowledging a settlement in full and the same have been filed with the Circuit Court. That should end this summary FED case and dismiss it — HOWEVER, WE ARE IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS!
!
It now appears from the information given to me that the attorneys for the CONDOMINIUM ASSOCIATION countered the filed of the 8 negotiated checks acknowledging that this matter has been settled and the case should be dismissed — THE APPEARED EX=PARTE without notice to either Dean or his attorney and obtained a judgement, a judgment for possession, and attorney fees.
Exactly how this was done with notification and with a jury demand on record is interesting but we are in the CIRCUIT COURT OF COOK COUNTY, ILLINOIS! It has been alleged that as to particular law firms certain judges are on retainer and ******. I have no personal knowledge as to any relationship between the plaintiff’s law firm and any judge. I also rely upon Mr. Sallas for the factual information. I do give Sallas particular credibility as I dealt with him, his father and their business for more than 1/2 a century and they have always been square with me.
When Dean learned of this travesty he filed a Motion to vacate the ex=parte orders and dismiss the proceedings. Apparently the attorneys worked out an order continuing the Motion to Vacate to Oct 27, 2022; however, Judge Mescall apparently has scheduled something for MONDAY, SEPTEMBER 12, 2022 AT 9:00 AM. The judge has indicated that she wants to speak to Mr. Sallas. As all Court proceedings are supposed to be open, I think it is important for all citizens to see Justice first hand in Cook County, Illinois.
I further understand that Journalist Janet Phelan is particularly invited to attend the Zoom hearing.
MaryGSykes.com 