Dick v. Peoples Mid-Illinois Corp.

• Decision Date: 04 March 1993
• Docket Number: No. 4-92-0429,MID-ILLINOIS,4-92-0429
• Citation: 182 Ill.Dec. 463,609 N.E.2d 997,242 Ill.App.3d 297
• Parties: , 182 Ill.Dec. 463 Helen A. DICK, Plaintiff-Appellant, v. PEOPLESCORPORATION and The Peoples Bank (formerly Peoples Bank of Bloomington), Individually and as Trustee of the Trust created by the Wills of George F. Dick, Jr., and Althea M. Dick, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 997

609 N.E.2d 997

242 Ill.App.3d 297, 182 Ill.Dec. 463

Helen A. DICK, Plaintiff-Appellant, v. PEOPLES MID-ILLINOIS CORPORATION and The Peoples Bank (formerly Peoples Bank of Bloomington), Individually and as Trustee of the Trust created by the Wills of George F. Dick Jr., and Althea M. Dick, Defendants-Appellees.

No. 4-92-0429.

Appellate Court of Illinois Fourth District.

March 4, 1993.

Helen A. Dick, Moline, for plaintiff-appellant.

John E. Fick, Samuels, Miller, Schroeder, Jackson & Sly, Decatur, for defendants-appellees.

Justice McCULLOUGH delivered the opinion of the court:

Plaintiff Helen A. Dick is before this court for the fifth time. (See Peoples Bank v. Dick (1985), 135 Ill.App.3d 1170, 100 Ill.Dec. 214, 496 N.E.2d 1279 (unpublished order under Supreme Court Rule 23) (Dick I ); Dick v. Dick (1988), 169 Ill.App.3d 1175, 132 Ill.Dec. 843, 540 N.E.2d 583 (unpublished order under Supreme Court Rule 23) (Dick II ); In re Estate of Dick (1989), 187 Ill.App.3d 77, 135 Ill.Dec. 104, 543 N.E.2d 339 (Dick III ); Dick v. Peoples Mid-Illinois Corp. (1990), 195 Ill.App.3d 654, 142 Ill.Dec. 35, 552 N.E.2d 385 (Dick IV ). In Dick IV, this court held plaintiff's complaint contained some allegations which would support a new action and thus were not barred by the principles of res judicata. Accordingly, this case was remanded to the trial court. (Dick, 195 Ill.App.3d at 660, 142 Ill.Dec. at 39, 552 N.E.2d at 389.) Upon remand, the trial court granted defendant's motion to dismiss plaintiff's amended complaint with prejudice. Plaintiff now appeals that dismissal and we affirm.

The long background of this case was set forth in Dick IV and will only be repeated here as necessary for the resolution of the issues presented. Basically, each of plaintiff's appeals has attempted to relitigate matters relating to the estates of George F. Dick, Jr. (George, Jr.), plaintiff's deceased adoptive father, and that of Althea M. Dick (Althea), plaintiff's deceased adoptive mother. George, Jr., and Althea had three natural children, George F. Dick III (George III), Helen Dick (who is a different person than plaintiff Helen A. Dick), and Eleanor D. Lyon; in addition, they adopted plaintiff Helen A. Dick, Eleanor's daughter and their granddaughter.

George, Jr., an attorney, died in 1955. In his will, he left the bulk of his property to his wife, Althea, in the form of a life estate. George, Jr.'s will also left 80 shares of stock in Peoples Bank of Bloomington to his son, George III, an attorney, to be assigned and transferred to him after Althea's death, as and for his individual property. However, in 1959, prior to Althea's death, George III persuaded Althea to transfer the 80 shares of stock to him. The stock has since split, thereby greatly increasing its value. George, Jr.'s will also created trusts for the remaining interests naming plaintiff, his adopted daughter, and Eleanor Dick Lyon and Helen Dick, his two natural daughters, as beneficiaries; the trust was to terminate upon daughter Eleanor's death, the remainder, with adjustments for withdrawals, to be divided one-third to Helen Dick, one-third to Helen A. Dick, and one-third to George III. George III was trustee of this trust and served in such capacity until 1978 when he resigned. Defendant, the Peoples Bank (bank), formerly known as Peoples Bank of Bloomington, became successor trustee.

Althea died testate in 1976. Her will gave her personal belongings to her natural daughter, Helen. The remainder of her estate was divided into thirds, to be distributed to Helen, Eleanor, and plaintiff. Helen's share was given outright while Eleanor's and plaintiff's shares were put into trust. George III was named executor of Althea's will and the bank was trustee of this trust.

The final report of Althea's estate was approved and George III was discharged as executor in 1979. A letter was filed with the court prior to this discharge stating that plaintiff and Eleanor objected to George III's final report and asked the court not to discharge him from his duties as executor. In February 1979, Eleanor filed a petition to vacate the order of discharge but later withdrew that petition.

In 1982, the bank filed an action as successor trustee of the trust created by the will of George, Jr., and as trustee of the trusts created by the will of Althea, for a construction of these trusts and the propriety of actions taken by George III. It was determined that the transfer of the 80 shares of stock to George III prior to Althea's death violated the provisions of George, Jr.'s will. George III was ordered to prepare an accounting of all shares from the date of that transfer through the date of Althea's death. However, before that accounting was done, the bank and George III reached a settlement agreement. Plaintiff was a named defendant in this action and participated by filing a counterclaim against George III for breach of fiduciary duties. The trial court dismissed plaintiff's counterclaim and plaintiff appealed. Neither George III nor the bank appealed the orders entered in the 1982 action. One of the issues plaintiff raised in Dick I was the impropriety of the settlement between the bank and George III, an issue she had failed to raise in the trial court. This court held plaintiff was barred from raising any alleged impropriety in the settlement when she had not raised the issue in the trial court. This court affirmed the dismissal of the counterclaim. Peoples Bank v. Dick (1985), 135 Ill.App.3d 1170, 100 Ill.Dec. 214, 496 N.E.2d 1279 (unpublished order under Supreme Court Rule 23).

In 1986, plaintiff began filing her various complaints relating to this litigation. Plaintiff has filed complaints against George III for allegedly fraudulent acts he took while trustee of the trust created under George, Jr.'s will and as executor of Althea's will, has attempted to reopen Althea's estate, and then her father's estate, and has most recently begun actions against the bank.

The complaint at issue in this appeal was filed in February 1991 after remand by this court in Dick IV. Plaintiff amended her complaint in August 1991 and it is divided into two counts. Peoples Mid-Illinois Corporation (holding company) is a holding company which was formed in 1971. Both the holding company and the bank were named as defendants, individually, and as trustee under the trusts created by the wills of George, Jr., and Althea.

Count I alleged defendants breached certain fiduciary duties owed to plaintiff as the beneficiary of the trusts created under George, Jr.'s and Althea's wills. Plaintiff alleged the bank acquired certain duties owed to her when it accepted the responsibility as successor trustee of the trust created under the will of George, Jr., and as trustee of the trust created by the will of Althea. Plaintiff alleged these duties included the duty to examine the wills of George, Jr., and Althea, to determine what property constituted the corpus of those trusts and to determine whether George III properly delivered all of that property to the bank as successor trustee and trustee.

Plaintiff further alleged the bank breached these duties by retaining shares of the holding company as an investment of the trusts. Plaintiff alleged the interest of the holding company in accumulating profits instead of paying cash dividends is in conflict with all persons having a beneficial interest in the shares of the holding company. Plaintiff concluded the trusts have suffered great losses and the holding company has benefitted as a result of the breach of fiduciary duty by the bank.

Plaintiff further alleged the bank breached a duty of undivided loyalty to her and the duty to manage and care for the trust estates in the same manner that any prudent man would manage and care for his property by allowing George III to vote holding company shares which were property of the estate of George, Jr., and allowing directors of the holding company to receive year-end bonuses and payments for attending meetings of the board of directors of the holding company.

Count II of plaintiff's amended complaint alleged defendant bank breached its fiduciary duty by failing to inform her of facts relating to actions taken by George III. Two of these acts included allowing George III, as trustee of the estate of George, Jr., to vote for stock dividends and splits of holding company stock, thereby increasing the value of that stocks while he was chairman of the board of directors of the bank.

Plaintiff next alleged defendant bank falsely represented to her that it had "lost" count I of its 1982 complaint which sought a determination of whether the transfer of the 80 shares from Althea to George III during Althea's lifetime was proper and whether George III should have received 80 shares (rather than the 2,400 received because of the subsequent stock splits) of stock upon Althea's death. Plaintiff alleged that under the terms of the settlement agreement George III paid $120,000, of which $60,000 was to be applied to the trust established under George, Jr.'s will, $20,000 was to be applied to Althea's trust for Eleanor, $20,000 was to be applied to Althea's trust for Helen A. Dick, and $20,000 was to be applied to the bank's attorney fees. Plaintiff alleged the settlement agreement between George III and defendant was a representation that defendant had "lost" its count I of the 1982 action. She alleged that based on the representations of defendant, she believed defendant had "lost" its count I because it filed the cause of action in the wrong estate. Plaintiff, therefore, instead of attempting to set aside the settlement agreement between defendant bank and George III, filed a counterclaim against George III and tried to open Althea's estate to recover profits allegedly obtained from George III. Plaintiff alleged defendant's failure to inform her of the facts surrounding George III's actions and the settlement...