Landheer v. Landheer

• Decision Date: 25 June 2008
• Docket Number: No. 3-07-0629.,3-07-0629.
• Citation: 891 N.E.2d 975,383 Ill.App.3d 317
• Parties: Arlyn LANDHEER and Mark Landheer, Plaintiffs and Counterdefendants-Appellees, v. Warren LANDHEER, individually and as Successor Trustee of the Landheer Family Trust, Defendant and Counterplaintiff-Appellant.
• Court: United States Appellate Court of Illinois

891 N.E.2d 975

383 Ill.App.3d 317

Arlyn LANDHEER and Mark Landheer, Plaintiffs and Counterdefendants-Appellees, v. Warren LANDHEER, individually and as Successor Trustee of the Landheer Family Trust, Defendant and Counterplaintiff-Appellant.

No. 3-07-0629.

Appellate Court of Illinois, Third District.

June 25, 2008.

James W. Mertes, Magen J. Mertes, Pignatelli & Mertes, P.C., Rock Falls, IL, for Appellant.

William R. Shirk, Law Office of William R. Shirk, P.C., Morrison, IL, for Appellee.

Justice CARTER delivered the opinion of the court:

Plaintiffs, Arlyn and Mark Landheer, brought suit to have the trial court enter a declaratory judgment that a certain document (the disputed document) signed by their father shortly before his death is not an effective amendment to the Landheer Family Trust (the trust). Defendant, Warren Landheer, individually and as successor trustee of the trust, filed a counterclaim for a declaratory judgment to the contrary. Plaintiffs filed a motion to dismiss the counterclaim pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2006)) asserting that the disputed document is void because it was prepared by a person who is not an attorney, in violation of section 2BB of the Consumer Fraud and Deceptive Business Practices Act (the Act) (815 ILCS 505/2BB (West 2006)). The trial court granted the motion to dismiss. Defendant appeals, arguing that the motion to dismiss should have been denied because section 2BB does not prohibit the drafting of a document that merely amends a living trust, and that even if it does, the disputed document does not violate the Act or the public policy of this state since defendant acted only as a scrivener of the document and since the trust specifically provided that it could be amended by written instrument delivered to the trustee. We affirm the grant of the motion to dismiss.

FACTS

The two plaintiffs and defendant are the three sons of Herbert and Mildred Landheer. Herbert and Mildred owned two 160-acre farms in Whiteside County referred to as the Home Farm and the Union Grove Township Farm. In 1985, Herbert and Mildred each executed a will. In each of the wills, the other spouse was named as executor and defendant and Arlyn were named as successor co-executors. In 1996, Herbert and Mildred jointly created the trust. Of relevance to this appeal, the trust provided: (1) that it could be amended by writing instrument signed by either of the grantors and delivered to the trustee, and (2) that upon the death of both of the grantors, the trust's interest in the Union Grove Township Farm would be distributed to defendant subject to defendant paying plaintiffs two-thirds of the appraised value.

Mildred died in 2001. After Mildred's death, Herbert transferred his interest in the farms to the trust. Sometime after that, Herbert was diagnosed with cancer. On June 29, 2003, Herbert signed the disputed document, which was presented to him by defendant. The disputed document was entitled, "Last Will and Testament of Herbert W. Landheer," and provided as follows:

"To whom it may concern, for the purpose of settling and distributing my estate. The value of my real estate property is to be set at no more than a total of $675,000 for both farms, including all buildings. Warren Landheer has the option of purchasing his brothers share of the real estate for no more than $450,000, or for no more than $225,000 each. All other personal property is to be shared equally between my three sons, except for the car and Ford truck, which is to go to my son, Arlyn. All costs, expenses, and debts of the estate are to be shared equally between my three heirs, Warren, Mark, and Arlyn Landheer. Warren Landheer is to serve as Executor of my Will and Estate. Being of sound mind, these are my wishes and Last Will, which supercedes any and all previous wills."

The disputed document was signed by Herbert in the presence of Mark Landheer (one of the plaintiffs) and Pat Wagenecht (a third party), whose signatures also appear on the document. Herbert passed away a short time later on July 7, 2003.

Plaintiffs subsequently brought the instant action seeking a declaratory judgment that the disputed document is not an effective amendment to the trust. In the complaint, plaintiffs alleged, among other things, that the fair market value of the two farms is much greater than the established value set forth in the disputed document. Defendant filed a counterclaim seeking a declaratory judgment to the contrary. Plaintiffs filed a section 2-619 motion to dismiss the counterclaim asserting that the disputed document is void because it was prepared by a person who is not an attorney, in violation of section 2BB of the Act.

Attached to some of the pleadings in the trial court were certain portions of defendant's deposition testimony regarding the matter. In his deposition, relevant to the issue raised on appeal, defendant testified to the following. Herbert told defendant that he had learned from an acquaintance that he did not have to set the value of the farms by an appraisal and that he could specify a value himself. Herbert felt that he had paid too much for some property in the past because the value was set by an appraisal and wanted to avoid the use of an appraisal to value the farms. Herbert did not want an appraiser getting involved in his business and did not want any haggling or squabbling.

Defendant took some notes of what Herbert wanted, took the notes home, and had his wife type up the disputed document. Defendant and his wife did not use a form document to determine the appropriate wording for the disputed document. Defendant decided to title the disputed document, "Last Will and Testament," because he did not know what else to put for the title, he did not have a copy of the trust, and he did not think of calling the disputed document an amendment to the trust. Defendant did not recall why he put in the disputed document that he was to be the sole executor of the estate and did not remember Herbert telling him to do that. Defendant did not wait for Herbert's attorney to take care of the matter because Herbert was concerned about his failing health and wanted the document done right away. Defendant handled the matter as he was instructed to do by Herbert. Herbert told defendant to get the disputed document prepared and signed and to then take the document to Herbert's attorney. Herbert came up with the $675,000 value for the farms based on what Herbert thought was a fair value for the land per acre.

The disputed document was signed on a Sunday morning a short time after Herbert had discussed the matter with defendant. Defendant brought the document over to Herbert's house. Defendant's brother, Mark (one of the plaintiffs), was there at the time and so was a person named Pat Wagenecht. Defendant placed the disputed document in front of Herbert, told Herbert to look at it, and asked Herbert if that was what Herbert wanted defendant to do. Defendant told Herbert that the disputed document contained what they had discussed regarding prices for the farms. Herbert looked over the document and told defendant that the document was what he wanted. Herbert signed the disputed document. Defendant asked Mark and Pat Wagenecht to sign the document as well to verify Herbert's signature. A few days later, at Herbert's direction, defendant took the document to Herbert's attorney and was told that the document was sufficient to amend the trust.

After considering the matter, the trial court granted the section 2-619 motion to dismiss defendant's counterclaim. In so doing, the trial court noted that even if Herbert had prepared the disputed document himself, it would have been a violation of section 2BB since Herbert was not an attorney. Defendant filed a motion to reconsider, which the trial court denied. The trial court later made a finding pursuant to Supreme Court Rule 304(a) (210 Ill.2d R. 304(a)) that there was no just reason to delay an appeal in this case. This appeal followed.

ANALYSIS

On appeal, defendant argues that the trial court erred in granting the section 2-619 motion to dismiss. A trial court's grant of a section 2-619 motion to dismiss is subject...