Donkle v. Lind
| Decision Date | 28 June 2018 |
| Docket Number | No. 1–17–1915,1–17–1915 |
| Parties | Michele Pranno DONKLE, Plaintiff–Appellant, v. Cary A. LIND and Cary A. Lind, P.C., Defendants–Appellees. |
| Court | United States Appellate Court of Illinois |
Daniel F. Konicek and Andrew M. Cook, of Konicek & Dillon, P.C., of Geneva, for appellant.
Matthew J. Egan and Brendan J. Nelligan, of Pretzel & Stouffer, Chtrd., of Chicago, for appellees.
¶ 1 The instant appeal arises from a legal malpractice lawsuit filed by plaintiff Michele Pranno Donkle against attorney defendants Cary A. Lind and Cary A. Lind, P.C., in which plaintiff alleges that defendants owed plaintiff a duty to inform her of a claim plaintiff had against her mother's estate during the course of defendants' representation of plaintiff with respect to a lawsuit filed by plaintiff's sister. Defendants filed a motion to dismiss the complaint pursuant to section 2–619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2–619 (West 2016) ), claiming that defendants represented plaintiff only in her capacity as trustee of her mother's trust and did not represent plaintiff in her individual capacity, meaning that defendants had no duty to inform plaintiff of her individual claim against the estate. The trial court granted defendants' motion to dismiss, and for the reasons that follow, we affirm the trial court's judgment.
¶ 3 I. Complaint
¶ 5 On July 22, 2016, plaintiff filed a complaint for legal malpractice against defendants; the complaint was amended on March 21, 2017. It is the amended complaint that is the subject of the instant appeal. The amended complaint alleges that plaintiff is the daughter of Louise J. Pranno, now deceased, and is the successor trustee to the Amended First Restatement of the Louise J. Pranno Trust, dated January 27, 1998 (the trust). For at least five years prior to the death of her mother, plaintiff provided personal care to her mother, who was completely disabled and required assistance with most of her activities of daily living, which caused plaintiff "significant financial[ ] and professional hardship and was done at a significant personal sacrifice to Plaintiff." Although plaintiff resided with her husband in a home in Libertyville, when her mother became unable to care for herself, plaintiff began living in her mother's home and apart from her husband, which continued for six to seven years while plaintiff cared for her mother.
¶ 6 The amended complaint alleges that plaintiff "was the nominated executor of Louise J. Pranno Will dated March 30, 2007 if the will was admitted to probate and her probate estate administered." The amended complaint further alleges that, at all relevant times, the Probate Act of 1975 (Probate Act) contained a provision permitting a statutory custodial claim against a decedent's estate for "[a]ny spouse, parent, brother, sister, or child of a disabled person who dedicates himself or herself to the care of the disabled person by living with and personally caring for the disabled person for at least 3 years." 755 ILCS 5/18–1.1 (West 2012).
¶ 8 The amended complaint set forth a single count for legal malpractice, which included the allegation that "[i]n 2013, Plaintiff and Defendants entered into an attorney-client relationship wherein Defendants agreed to represent Plaintiff in the Chancery Action." The amended complaint alleges that the claims in the underlying complaint "effectively sought disgorgement and the re-allocation of assets from Plaintiff in her personal capacity, not solely in her capacity as a Trustee of the Trust." The amended complaint further alleges that "Defendants, in effect, undertook to represent Plaintiff in the defense of the Chancery Action both in Plaintiff's capacity as Trustee and in Plaintiff's individual capacity." According to the amended complaint, during the course of this representation, defendants failed to advise plaintiff that she could, in her individual capacity, seek recovery under the Probate Act for her statutory custodial claim and failed to advise plaintiff of the time limitations in making such a claim. Defendants also failed to advise plaintiff "that the filing of such a claim would reduce the litigation expense and provide for a superior settlement in the underlying Chancery Action." Accordingly, the amended complaint alleges that defendants breached the standard of care owed to plaintiff, causing plaintiff damages including the loss of the ability to recover compensation for the time and effort in providing care to her mother and additional litigation expenses incurred as a result of the underlying litigation.
¶ 10 Attached to the amended complaint was a copy of the trust agreement, in which plaintiff was named as successor trustee. The trust agreement set forth several specific gifts, including a provision that, upon the decedent's death, her home "shall be sold as soon as is practical after my death" and that plaintiff was to receive 10% of the net proceeds of sale The trust agreement also granted plaintiff the right of first refusal to purchase the decedent's home from the trust or estate for fair market value at the time of the decedent's death. Other than the specific gifts, the trust agreement provided that the balance of the trust assets were to be equally distributed among the decedent's three children.
¶ 11 Also attached to the amended complaint was a copy of the decedent's will, which named plaintiff as the executor. The will provided that all of the property owned at the decedent's death would be bequeathed to the trust and would be distributed as provided therein.
¶ 13 Finally, attached to the amended complaint was a copy of the underlying complaint filed by plaintiff's sister, which named as defendant "Michele J. Pranno Donkle, as Successor Trustee to the Amended First Restatement of the Louise J. Pranno Trust Dated January 27, 1998." According to the underlying complaint, the decedent died on September 16, 2012, but despite plaintiff's position and responsibilities as executor and successor trustee, plaintiff failed to notify her sister of the death. Additionally, the underlying complaint alleged that plaintiff failed to properly probate the decedent's will so that she could legally transfer the decedent's property to the trust, but nevertheless, in October 2012, plaintiff began distributing the decedent's property "in shares of non-equal value to beneficiaries and non-beneficiaries" of the will and trust. Specifically, the underlying complaint alleged that plaintiff failed to distribute to her sister "all of what she was supposed to receive pursuant to the terms of the Will" and trust. The underlying complaint alleged that plaintiff also conducted an estate sale in November 2012, collecting $3439.64, which plaintiff did not distribute equally to the beneficiaries.
¶ 14 The underlying complaint also alleged that plaintiff failed to list and sell the real property owned by decedent as of her death and "[i]n fact, upon information and belief, [plaintiff] is residing, ‘rent-free’, in the real property owned by Decedent as of her death." The underlying complaint alleged that plaintiff was devaluing and causing waste to the property "because she is not properly cleaning, preparing and/or repairing the real property for listing, and is residing, ‘rent-free’, in the real property resulting in the real property not being available for ‘showing’ to prospective purchasers and/or renters." The underlying complaint alleges that on March 8, 2013, plaintiff's sister, through counsel, sent plaintiff a demand for an accounting of the assets and expenses of the trust, which plaintiff failed to provide.
¶ 15 The underlying complaint set forth four causes of action. Count I was for breach of fiduciary duty, alleging that plaintiff had breached the fiduciary duties owed by her as executor and successor trustee. Count I requested the following relief: (1) a finding in favor of plaintiff's sister and against plaintiff on count I, (2) a finding that plaintiff had breached her fiduciary duty to her sister, (3) the removal of plaintiff as successor ...
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...intent between a potential client and attorney is required to create an attorney-client relationship. See, e.g. , Pranno Donkle v. Lind , 2018 IL App (1st) 171915, ¶ 33, 426 Ill.Dec. 835, 117 N.E.3d 252 (attorney-client relationship is a voluntary, contractual relationship that requires the......
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...Ill.Dec. 74, 28 N.E.3d 727. Although we may affirm the circuit court's dismissal on any basis supported by the record ( Pranno Donkle v. Lind , 2018 IL App (1st) 171915, ¶ 29, 426 Ill.Dec. 835, 117 N.E.3d 252 ), we begin with the circuit court's sole basis for dismissal in the instant case,......
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Daniel v. Chi. Transit Auth.
...Ill.Dec. 45, 901 N.E.2d 373. De novo consideration means we perform the same analysis that a trial judge would perform. Pranno Donkle v. Lind , 2018 IL App (1st) 171915, ¶ 29, 426 Ill.Dec. 835, 117 N.E.3d 252. Additionally, even if the trial court dismissed on an improper ground, a reviewin......