Estate of Davis, In re

• Decision Date: 10 March 1992
• Docket Number: No. 2-91-0184,2-91-0184
• Citation: 589 N.E.2d 154,225 Ill.App.3d 998
• Parties: , 168 Ill.Dec. 40 In re ESTATE OF Michael H. DAVIS, Deceased (Richard W. Waller et al., Ex'rs of the Estate of Michael H. Davis, Deceased, Petitioners-Appellees, v. Carol B. Davis, Respondent-Appellant).
• Court: United States Appellate Court of Illinois

Page 154

589 N.E.2d 154

225 Ill.App.3d 998, 168 Ill.Dec. 40

In re ESTATE OF Michael H. DAVIS, Deceased (Richard W.Waller et al., Ex'rs of the Estate of Michael H Davis, Deceased, Petitioners-Appellees v. Carol B. DavisRespondent-Appellant).

No. 2-91-0184.

Appellate Court of Illinois Second District.

March 10, 1992.

Michael J. Kralovec, Daniel C. Meenan, Jr., Feiwell, Galper, & Lasky, Ltd., Jeffrey B. Steinback, Genson, Steinback & Gillespie, Chicago, Bryan E. Mraz, Mraz & Mraz, Roselle, for Carol B. Davis.

James C. Murray, Jr., Alexander R. Rothrock, and Mark L. Johnson, Katten Muchin & Zavis, Chicago, for Estate of

Michael H. Davis, Richard W. Waller, Mary Elizabeth"Betsy" Burton.

James C. Murray, Alexander R. Rothrock, Mark L. Johnson, Katten, Muchin & Zavis, Chicago, for petitioners-appellees.

Justice UNVERZAGTdelivered the opinion of the court:

Respondent, Carol B. Davis, appeals from the order of the circuit court of Du Page County which granted petitioner's motion for judgment on the pleadings and to strike affirmative defenses.We affirm.

The marriage of Michael and Carol Davis was dissolved on July 27, 1983.As part of the property settlement agreement pursuant to the dissolution, Carol waived her right to specific shares of stock in Michael's company, Victory Beauty Supply Company, Inc., 77 shares of which were held at that time in Lake Shore National Bank IRANo. 5013.The only beneficiary ever designated under that account was Carol.

Michael Davis died on March 22, 1990.Both Carol and the independent co-executors of the estate claimed the account proceeds which then allegedly included some $3 million from the sale of Victory Beauty Supply Company stock.On May 16, 1990, the co-executors filed a petition seeking, among other things, an order declaring the estate to be the beneficiary of the IRA in light of the parties' divorce, Carol's waiver in the property settlement agreement of any rights in the stock held in the IRA, and the operation of section 1 of the Trusts and Dissolutions of Marriage Act (Act)(Ill.Rev.Stat.1989, ch. 148, par. 301).Lake Shore National Bank filed an answer requesting an order directing it as to the legal rights of the estate.The bank is merely a stakeholder and is not a party to this appeal.Carol filed an answer and affirmative defenses to the petition, seeking an order denying the relief sought in the petition and acknowledging her status as the proper beneficiary of the trust.

In October 1990, the co-executors filed a motion seeking judgment on the pleadings and the striking of Carol's affirmative defenses, pursuant to section 2-615 of the Code of Civil Procedure(Ill.Rev.Stat.1989, ch. 110, pars. 2-615(e), (a)).After full briefing and oral argument, the court granted judgment on the pleadings in the co-EXECUTORS' favor and struck Carol's affirmative defenses.This appeal followed.

A motion for judgment on the pleadings is based on admissions in an opposing party's pleadings, whereas a motion to strike challenges whether the pleader has a valid cause of action or defense even if all the facts alleged by the pleader are taken as true.(Delgatto v. Brandon Associates, Ltd.(1989), 131 Ill.2d 183, 188-89, 137 Ill.Dec. 36, 545 N.E.2d 689.)Both motions are determined solely on the basis of the pleadings in order to determine the existence or absence of a genuine issue of material fact and, in the absence of such an issue, whether the movant is entitled to judgment as a matter of law.(State Farm Fire & Casualty Co. v. Kleckner(1990), 194 Ill.App.3d 371, 375, 141 Ill.Dec. 231, 551 N.E.2d 224.)This contrasts, for example, with summary judgment motion practice where judgment on the motion may also include consideration of affidavits, deposition transcripts and other evidentiary documents in order to establish the absence of a factual issue.State Farm Fire & Casualty Co., 194 Ill.App.3d at 375, 141 Ill.Dec. 231, 551 N.E.2d 224;Ill.Rev.Stat.1989, ch. 110, par. 2-1005.

Exhibits attached to pleadings such as the motions at bar are considered part of the pleadings for all purposes where the pleading is founded on such exhibits.(Ill.Rev.Stat.1989, ch. 110, par. 2-606.)Allegations in the pleading which conflict with facts disclosed in the exhibits are not admitted as true but, rather, the exhibit controls.(McCormick v. McCormick(1983), 118 Ill.App.3d 455, 460, 74 Ill.Dec. 73, 455 N.E.2d 103.)Also, exhibits attached to pleadings simply as an example of the evidence supporting the pleader's allegations are not taken as true and are not controlling.Jones v. Lazerson(1990), 203 Ill.App.3d 829, 836, 148 Ill.Dec. 845, 561 N.E.2d 151;McCormick, 118 Ill.App.3d at 460-61, 74 Ill.Dec. 73, 455 N.E.2d 103.On a motion for judgment on the pleadings, if the pleadings put in issue one or more material facts, evidence must be taken to resolve such issues, and judgment may not be entered on the pleadings.(Village of Worth v. Hahn(1990), 206 Ill.App.3d 987, 990, 151 Ill.Dec. 895, 565 N.E.2d 166.)On review, the court must determine whether any genuine issue of material fact exists and, if not, whether the prevailing party was indeed entitled to judgment as a matter of law.State Farm Fire & Casualty Co., 194 Ill.App.3d at 375, 141 Ill.Dec. 231, 551 N.E.2d 224.

A motion to strike an affirmative defense admits all well-pleaded facts constituting the defense, along with all reasonable inferences which may be drawn therefrom.(Raprager v. Allstate Insurance Co.(1989), 183 Ill.App.3d 847, 854, 132 Ill.Dec. 224, 539 N.E.2d 787.)Such a motion raises only a question of law as to the sufficiency of the pleading.(Raprager, 183 Ill.App.3d at 854, 132 Ill.Dec. 224, 539 N.E.2d 787.)Where the well-pleaded facts and inferences drawn therefrom raise the possibility that the party raising the defense will prevail, the motion to strike should not be granted.Long v. Kemper Life Insurance Co.(1990), 196 Ill.App.3d 216, 218, 142 Ill.Dec. 925, 553 N.E.2d 439;Raprager, 183 Ill.App.3d at 854, 132 Ill.Dec. 224, 539 N.E.2d 787.

In her answer to the co-executors' petition to recover the proceeds of the IRA account, Carol admitted that the decedent established IRANo. 5013 on October 26, 1982, that she was designated at that time as its beneficiary, and that the decedent never filed any other beneficiary designations with the Lake Shore National Bank.She further answered that the terms of the judgment of dissolution of her marriage to the decedent entered on July 27, 1983, and the property settlement agreement incorporated therein speak for themselves, and, to the extent those terms were inconsistent with the co-executors' allegations that she specifically waived any rights to the property of the trust or any beneficial interest therein, she denied them.The property settlement agreement provided in pertinent part that the decedent receive as his "sole and exclusive property" the 77 shares of Victory Beauty Supply Company, Inc., stock in the Lake Shore National Bank IRANo. 5013 and that Carol waives any and all rights and claims "past, present or future" in and to said property.Carol also answered that the co-executors' allegation that section 1 of the Act revoked the designation of her as the beneficiary of the trust was an "erroneous legal conclusion" which she denied and that the terms of the trust agreement speak for themselves.

As her first affirmative defense, Carol claimed that even if section 1 of the Act applied to revoke the decedent's designation of her as beneficiary of the IRA account after the parties' divorce, such designation was "approbated and ratified anew" by the decedent subsequent to the divorce.As her second affirmative defense, Carol claimed that Lake Shore National Bank was merely a custodian for property or an appointed paying and receiving agent under the instrument creating the account or that the account is equivalent to a Totten trust.Under any of those circumstances, the account would be specifically excluded from the revocation provisions of section 1. Ill.Rev.Stat.1989, ch. 148, pars. 301(c)(f), (c)(g).

Based on Carol's admission that decedent never filed any other beneficiary designation subsequent to the parties' divorce, the co-executors filed their motion for judgment on the pleadings and to strike affirmative defenses.Carol's response elaborated on her answer, and she appended to it numerous exhibits.Her response challenged the January 1, 1989, trust agreement relied upon by the co-executors as the controlling instrument in light of the affidavit of Gerald P. Giese, a trust officer of the bank, that decedent never executed a written adoption agreement as to that 1989amendment and that the only adoption agreement ever executed was the one dated October 26, 1982.Other exhibits appended to Carol's response included the judgment for dissolution, affidavits of herself and the parties' respective attorneys in the divorce proceedings; various account records of IRANo. 5013(which, for the most part, this court finds illegible); copies of the decedent's last wills and testaments and codicils executed both before and after the parties' divorce; various trust instruments executed subsequent to February 1, 1984; and a letter dated July 25, 1986, from the decedent to the trustee of the IRA purporting to amend the October 26, 1982, adoption agreement by directing that the trustee not engage in any distribution or transfer of amounts held with respect to the IRA other than to decedent's checking account with the Lake Shore National Bank at his direction.The stated purpose of these other exhibits was to show that the decedent's intent was "to continue to provide for Carol by continuing to designate her as the beneficiary of the IRA."

After considering written memoranda of law and argument, the court granted the co-executors' motion for judgment on the pleadings and struck both of Carol's affirmative defenses.It also granted...