Bjork v. O'Meara

• Decision Date: 25 March 2013
• Docket Number: No. 114044.,114044.
• Parties: Colleen BJORK, Appellant, v. Frank P. O'MEARA, Appellee.
• Court: Illinois Supreme Court

2013 IL 114044

986 N.E.2d 626

369 Ill.Dec. 313

Colleen BJORK, Appellant,

v.Frank P. O'MEARA, Appellee.

No. 114044.

Supreme Court of Illinois.

Jan. 25, 2013.

Rehearing Denied March 25, 2013.

Kurt J. LeVitus, Chicago, for appellant.

David P. Schippers, Kris Daniel, Chicago, for appellee.

OPINION

Justice FREEMAN delivered the judgment of the court, with opinion.

[369 Ill.Dec. 315]¶ 1 Plaintiff, Colleen Bjork, brought an action in the circuit court of Cook County against defendant, Frank P. O'Meara, alleging intentional interference with a testamentary expectancy. The circuit court dismissed plaintiff's complaint as time-barred under the limitation period governing will contests. The appellate court affirmed the dismissal. 2012 IL App (1st) 111617, 358 Ill.Dec. 25, 964 N.E.2d 694. This court allowed plaintiff's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010). We now reverse the judgment of the appellate court and the order of the circuit court, and remand the cause to the circuit court for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 For several years prior to his death, Frank J. Dama was a friend to Bjork and to O'Meara. He was not related to either by blood or marriage. Bjork worked as a hospice nurse for Dama's late wife. O'Meara was Dama's dentist.

¶ 4 In a May 2005 telephone conversation with Bjork, Dama, who was 90 years old, told Bjork that he owned two bank accounts. One was his regular checking account containing approximately $800,000. Dama told Bjork that O'Meara knew the existence of this account, and that O'Meara “had been asking Dama for more and more money.” The other account, containing approximately “half a million,” was not used to pay expenses, and O'Meara did not know this account existed. Dama told Bjork that he wanted her to have this account “ because he did not want O'Meara to get everything.” Dama told Bjork that he wanted to name her as the pay-on-death beneficiary on this account.

¶ 5 Over the course of several months, Dama's personal banker, Mary Williams of the Northern Trust Company (hereafter Northern Trust), twice telephoned Bjork to inform her that Dama wanted to name Bjork as pay-on-death beneficiary on one of his bank accounts. In these conversations, Williams obtained information from Bjork, and asked her if she would sign documents to complete the beneficiary designation process. Bjork agreed.

¶ 6 On October 4, 2005, Williams sent a package to Bjork via FedEx, which contained documents for Bjork to sign to complete the beneficiary designation process. One of the documents was Northern Trust's form entitled “Power of Attorney,” which already had been signed by Dama and had been partially completed. The information on the form included the account number (612375), the social security numbers of Dama and Bjork, and the title of “Frank J. Dama Trustee for Colleen Mary Bjork Beneficiary.” Bjork signed this form and returned it to Williams. Thereafter, two deposits were made into Dama's Northern Trust bank account number 612375, bringing the balance of that account to $566,695.52.

¶ 7 On October 21, 2005, Dama signed a power of attorney for property that appointed O'Meara as his agent, and expressly revoked all powers previously granted to Bjork. On December 13, 2005, Dama executed a will containing a general residuary clause, in which he left his entire estate to O'Meara and O'Meara's wife.

¶ 8 From late 2005 through the end of 2008, Bjork and Dama were in contact through letters, telephone conversations, and in-person visits. In mid-January 2009, Dama telephoned Bjork to inform her that he had fallen and was not feeling well. Bjork visited Dama in his apartment, where O'Meara's secretary was present. Thereafter, Bjork's telephone calls to Dama's apartment went unreturned.

¶ 9 Dama died on February 18, 2009. Shortly after Dama's death, a representative of Northern Trust informed Bjork that she was not a beneficiary of any Dama account.

¶ 10 A. Probate Proceeding

¶ 11 O'Meara filed the will with the clerk of the circuit court, and thereafter filed a petition for probate of will and for letters testamentary. Counsel for Bjork subsequently filed an appearance on her behalf. The court admitted the will to probate and appointed O'Meara as the independent representative of Dama's estate.

¶ 12 Bjork filed two citation petitions pursuant to section 16–2 of the Probate Act of 1975 (755 ILCS 5/16–2 (West 2008)). Bjork filed a petition for a citation to Northern Trust for the recovery of property. Bjork asserted that she was the rightful owner of the assets in the Northern Trust account, but that O'Meara considered those funds as belonging to the estate.

¶ 13 Bjork also filed an amended petition for a citation to Northern Trust for discovery of information. Bjork alleged that when she asked for additional information, a Northern Trust representative stated that no further information would be provided except by court order. The circuit court issued a citation to Northern Trust for discovery. In response, Northern Trust produced documents. Bjork thereafter petitioned for leave to depose Williams in furtherance of the citation to discover information. Bjork asserted that Williams had information that was crucial to Bjork's claim, which was not contained in the documents produced thus far. Bjork alleged that a deposition of Williams would be the most efficient and least burdensome means to learn the truth about Dama's intent regarding the Northern Trust account.

¶ 14 On October 27, 2009, the circuit court denied Bjork's petition to depose Williams. Bjork filed a combined motion to reconsider and motion to clarify the denial of Bjork's petition to depose Williams. On November 30, 2009, the circuit court denied Bjork's motion to reconsider, and the court explained that it lacked the authority to order the deposition of Williams.

¶ 15 On April 2, 2010, O'Meara presented his “Final Report of Independent Representative,” in which he stated that the “assets of the estate have been distributed to the persons entitled thereto.” The circuit court entered an order discharging O'Meara and closing the estate.

¶ 16 B. Instant Complaint

¶ 17 In October 2010, Bjork filed a complaint for intentional interference with a testamentary expectancy. In addition to alleging the above-recited background, Bjork alleged as follows: Dama had planned to name her as the pay-on-death beneficiary of Northern Trust account number 612375, and had taken affirmative steps toward fulfilling his intention; O'Meara intentionally deprecated Bjork's relationship with Dama and interfered with Dama's plan by fraud, undue influence, misrepresentation, or other tortious means; O'Meara benefitted from his tortious conduct where the proceeds of the account were distributed to him and his wife pursuant to Dama's will; and, if not for O'Meara's wrongdoing, Bjork would have been named the beneficiary of the account and would have received the account proceeds on Dama's death. As damages, plaintiff requested $566,695.52, which was the amount of money deposited in the account, plus interest, attorney fees, and expenses.

¶ 18 O'Meara filed a combined motion to dismiss pursuant to section 2–619.1 of the Code of Civil Procedure (735 ILCS 5/2–619.1 (West 2008)) alleging defects under both section 2–619(a)(5) and section 2–615 (735 ILCS 5/2–615, 2–619(a)(5) (West 2008)). The section 2–619 portion of the motion alleged that Bjork's action was time-barred because she did not bring it within the six-month limitation period governing will contests. See 755 ILCS 5/8–1 (West 2008). Alternatively, the section 2–615 portion of the motion alleged that Bjork's complaint failed to state a cause of action.

¶ 19 The circuit court granted O'Meara's motion to dismiss in a memorandum order. The court concluded that Bjork's action was time-barred based on the six-month limitation period of section 8–1 of the Probate Act. The appellate court affirmed. 2012 IL App (1st) 111617, 358 Ill.Dec. 25, 964 N.E.2d 694. Bjork appeals to this court.

¶ 20 II. ANALYSIS

¶ 21 O'Meara moved to dismiss Bjork's complaint pursuant to section 2–619.1 of the Code of Civil Procedure, which allows a party to file a motion combining a section 2–615 motion to dismiss with a section 2–619 motion to dismiss. 735 ILCS 5/2–619.1 (West 2008). A section 2–615 motion to dismiss tests the legal sufficiency of a complaint. A section 2–619 motion to dismiss admits the sufficiency of the complaint, but asserts affirmative matter that defeats the claim. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31, 364 Ill.Dec. 40, 976 N.E.2d 318;King v. First Capital Financial Services Corp., 215 Ill.2d 1, 11–12, 293 Ill.Dec. 657, 828 N.E.2d 1155 (2005). Among such affirmative matter is that “the action was not commenced within the time limited by law.” 735 ILCS 5/2–619(a)(5) (West 2008). The circuit court granted O'Meara's motion to dismiss on this basis. A section 2–619 motion admits as true all well-pleaded facts, as well as all reasonable inferences that may arise therefrom. Further, when ruling on a section 2–619 motion, a court must interpret all pleadings and supporting documents in favor of the nonmoving party. Porter v. Decatur Memorial Hospital, 227 Ill.2d 343, 352, 317 Ill.Dec. 703, 882 N.E.2d 583 (2008). Our review of a dismissal under either section 2–615 or section 2–619 is de novo. Patrick Engineering, 2012 IL 113148, ¶ 31, 364 Ill.Dec. 40, 976 N.E.2d 318;King, 215 Ill.2d at 12, 293 Ill.Dec. 657, 828 N.E.2d 1155.

¶ 22 The sole issue presented in the case at bar is the timeliness of Bjork's tort claim. The circuit and appellate courts applied the six-month limitation period governing will contests (see 755 ILCS 5/8–1 (West 2008)), rendering her complaint time-barred.

¶ 23 After the admission of a will to probate, section 8–1 of the Probate Act establishes a six-month limitation period to “file a petition * * * to contest the validity of the will.”...