In re Estate of Hoellen, 1-05-0067.

CourtUnited States Appellate Court of Illinois
Citation854 N.E.2d 774,305 Ill.Dec. 182
Docket NumberNo. 1-05-0067.,No. 1-05-0090.,1-05-0067.,1-05-0090.
PartiesIn re ESTATE OF Theodore HOELLEN, a Disabled Person (Robert F. Harris, Cook County Public Guardian, as Guardian of the Estate and Person of Theodore Hoellen, Petitioner-Appellee, v. Donald L. Owsley, Respondent-Appellant).
Decision Date29 August 2006

B. Rosenzweig of Jacobs & Rosenzweig, Chicago, for Appellant.

Robert F. Harris, Kass A. Plain, and Christopher J. Williams of the Office of the Public Guardian, Chicago, for Appellee.

Justice HALL delivered the opinion of the court:

In this consolidated appeal, respondent Donald L. Owsley appeals from two orders entered by the probate court relating to the estate of Theodore F. Hoellen. The first order was entered in favor of the Public Guardian as guardian of the estate and person of Hoellen and against respondent for nominal damages in the amount of $1 and punitive damages in the amount of $50,000. The second was a postjudgment order that, among other things, granted respondent a time extension within which to post an appeal bond covering the money damages portion of the first order.

The record shows that respondent, a Chicago police officer, first met Hoellen in the summer of 1999 when he responded to a 9-1-1 call from Hoellen's neighbor after Hoellen mistakenly entered the neighbor's home believing it was his home. After the incident occurred, respondent began regularly visiting Hoellen at his home. Hoellen's case was referred to the Public Guardian's office based on allegations that respondent was financially exploiting Hoellen, who lived alone and suffered from dementia. On October 8, 2003, the Public Guardian filed a five-count amended petition for issuance of a citation to recover assets alleging that over the years, respondent had engaged in a course of conduct designed to manipulate and financially exploit Hoellen, an 89-year-old physically and mentally impaired senior citizen who, it was argued, was unable to protect himself from such exploitation.

In the citation petition, the Public Guardian presented uncontroverted evidence that Hoellen was suffering from progressive dementia and was incapable of making informed, independent decisions regarding his personal finances at the time respondent caused him to: designate respondent as primary beneficiary of his Chicago Transit Authority (CTA) retirement death benefit, designate respondent as beneficiary of a $50,000 certificate of deposit held at Banco Popular, execute powers of attorney for health care and property naming respondent as agent; execute a trust document known as the "Theodore Hoellen Trust," under which respondent would receive Hoellen's entire trust estate, both real and personal, including all amounts added to the trust through Hoellen's last will and testament.

After conducting an evidentiary hearing and hearing argument on the citation petition, the probate court concluded that respondent had used his position as a Chicago police officer to gain Hoellen's trust, exert undue influence over him, and then flagrantly and intentionally breach the fiduciary duty he owed him by virtue of a power of attorney. As a result, the probate court invalidated all of respondent's interests in Hoellen's estate: quitclaim deeds, CTA pension, certificate of deposit at Banco Popular, and the trust.

The probate court then awarded the Public Guardian nominal damages in the amount of $1 and punitive damages in the amount of $50,000. The probate court reasoned that punitive damages were warranted not only to punish respondent for violating his fiduciary duty to Hoellen but also to deter other individuals holding positions of public trust from financially exploiting vulnerable senior citizens.

On appeal, respondent contends that: (1) the probate court erred in denying his motion for substitution of judge as of right; (2) the probate court erred in denying his motion for substitution of judge for cause; (3) the probate court erred in not requiring the Public Guardian and certain Hoellen family members from responding to his request to admit facts and the genuineness of specified documents pursuant to Supreme Court Rule 216 (134 Ill.2d R. 216); and (4) the probate court erred by entering a judgment against him for nominal and punitive damages. For the reasons that follow, we affirm.


As a preliminary matter we address the jurisdictional issue raised by the Public Guardian. The Public Guardian contends that respondent's notice of appeal only refers to the money damages portion of the probate court's order and therefore our jurisdiction is limited to that portion of the order and does not extend to the issues respondent now raises on appeal which would result in a new trial. The Public Guardian maintains that respondent's notice of appeal indicates he was only seeking reversal of the money damages portion of the order where the notice specifically refers to money damages but excludes any mention of Hoellen's estate assets. We disagree.

Supreme Court Rule 303(b)(2) (155 Ill.2d R. 303(b)(2)), which governs the form and content of a notice of appeal, states in relevant part that a notice of appeal "shall specify the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court." Nowhere in the rule is there a requirement that an appellant specifically set forth in the notice of appeal each and every issue he wishes to appeal. On the contrary, our supreme court has determined that the briefs, and not the notice of appeal itself, specify the precise issues to be relied upon for reversal. Burtell v. First Charter Service Corp., 76 Ill.2d 427, 433, 31 Ill.Dec. 178, 394 N.E.2d 380 (1979).

The purpose of a notice of appeal is to inform the party prevailing in the trial court that the unsuccessful party seeks review of the judgment. Burtell, 76 Ill.2d at 433, 31 Ill.Dec. 178, 394 N.E.2d 380. Notices of appeal are to be liberally construed. In re Marriage of Goldberg, 282 Ill.App.3d 997, 1001, 218 Ill.Dec. 272, 668 N.E.2d 1104 (1996). As a result of this liberal construction, a notice of appeal will be deemed sufficient to confer appellate jurisdiction when, considered as a whole, it advises the successful party of the nature of the appeal by fairly and adequately setting out the judgment complained of and the relief sought. Burtell, 76 Ill.2d at 433-34, 31 Ill.Dec. 178, 394 N.E.2d 380. Where the deficiency in a notice of appeal is one of form rather than substance and the appellee is not prejudiced, the absence of strict compliance with form is not fatal. Burtell, 76 Ill.2d at 434, 31 Ill.Dec. 178, 394 N.E.2d 380.

Respondent's notice of appeal is sufficient under these principles. The notice states that respondent is appealing from "the order entered on December 28, 2004, which, inter alia, made final the 11-page judgment `Order' entered against him by the Probate Division of the Circuit Court of Cook County on December 10, 2004. Said 11-page judgment Order entered a judgment against [respondent] for the sum of one dollar ($1.00) in compensatory damages and the sum of fifty thousand dollars ($50,000) in punitive damages." The notice goes on to state that respondent is "requesting that the circuit court be reversed and, if necessary, that the cause be remanded to that court with directives consistent with such disposition, and for any other and further relief to which she [sic] may be entitled."

Respondent's notice of appeal puts the Public Guardian on notice that he is appealing from the "11-page judgment `Order'" entered against him by the probate court on December 10, 2004. The notice also sets forth the relief sought. Moreover, the Public Guardian does not claim any prejudice by the allegedly defective notice of appeal. In sum, this court's jurisdiction is not limited to the money damages portion of the trial court's order entered on December 10, 2004.

In another preliminary argument, the Public Guardian contends that respondent should be barred by the doctrine of judicial estoppel from requesting a complete reversal of the probate court's finding since he represented at the appeal bond hearing that he was only appealing the money damages award. Again, we must reject the Public Guardian's argument.

Judicial estoppel is an equitable common law doctrine designed to protect the integrity of the judicial process by preventing a party who has successfully maintained a position in one legal proceeding from asserting a contrary, inconsistent position in a subsequent proceeding in order to receive favorable judgments in each proceeding. Ceres Terminals, Inc. v. Chicago City Bank & Trust Co., 259 Ill.App.3d 836, 849-50, 200 Ill.Dec. 146, 635 N.E.2d 485 (1994). Illinois courts have set forth five elements as necessary to successfully assert judicial estoppel: (1) the party to be estopped must have taken two positions; (2) the positions must have been taken in judicial or quasi-judicial administrative proceedings; (3) the positions must be given under oath; (4) the party must have successfully maintained the first position and received some benefit thereby; and (5) the two positions must be totally inconsistent. Ceres Terminals, Inc., 259 Ill. App.3d at 851, 200 Ill.Dec. 146, 635 N.E.2d 485.

Respondent maintains that judicial estoppel does not apply in this case because the position he took at the appeal bond hearing is not inconsistent with the position he now takes on appeal and therefore element five has not been established. We agree.

Review of the record indicates that at the appeal bond hearing respondent sought a time extension within which to post an appeal bond covering the money damages portion of the order, not because he was only appealing from that portion of the order, but because he was seeking a stay of...

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