*1 thаt the record is incom ground affirm trial court’s order on the of the trial court’s regard propriety with to the issue plete It that the trial court re possible to section 2 — 611. is award at the presented lied in whole or in the evidence October part upon section 2 — 611 motion. How granted when it Glenda’s hearing pre indicate what evidence was ever, the record does because the trial court’s rul we must during hearing, presume sented and had a sufficient factual basis. ing conformity was in law met the 2 — 611 motion itself also must the section presume We 2 — 611 motion for to sustain a section necessary requisite specificity fees. attorney the trial for review of inadequate since the record
Accordingly, motion, ruling. we affirm ruling court’s on the section 2—611 herein, of the circuit court judgment stated For the reasons is affirmed. County Cook
Affirmed. O’CONNOR, JJ., concur.
BUCKLEY and LECKRONE, Indiv., al., Plaintiffs, HARRIET v. LECRONE et THOMAS Indiv., Petitioner-Ap Leckrone, Defendant and al., (Harriet et Defendants al., Resрondents-Appellants). Murphy et pellee; Thomas W. Division) No. 1 — 89—1458 (4th First District 13, 1991. 19, 1991. Rehearing denied November Opinion September filed *2 J., McMORROW, dissenting.
Joseph Johnson, Bell, Ltd., R. Marconi and Chicago, Cusack & both appellants. Irving Lewis, Plaines, of Des for appellee.
JUSTICE JOHNSON of the opinion delivered court: Respondents, Johnson, Bell, Thomas Murphy W. Cusack & Ltd., appeal from an of the order circuit court granting petitioner, Leckrone, Harriet $7,000 sanctions in the amount to section 2— 6 11 of the Code (Ill. of Civil Procedure Rev. Stat. ch. 110, par. Harriet 611). Leckrone one of was also the defendants 2 — underlying suit this appeal. respondents On raise the appeal, following (1) issues: whether the trial in imposing court erred sanc against tions them for their filing of the underlying complaint against defendants, Flotow; (2) Harriet Leckrone and William J. whether the amount of the sanctions was excessive.
We reverse. facts, record, as we can discern from the rеveal that on Au- wife, Lecrone, Hattie each gust J. Lecrone and his Anthony a will. and Hattie are the of Charles Le- Anthony parents executed of the grandparents crone and Gordon L. Leckrone and the in the in that are Thomas C. Le- suit. suit underlying crone, Lecrone, Lecrone Scott H. and Dale E. Lecrone. Loper, Connie father, Lecrone, parents. Plaintiffs’ predeceased Charles will, Pursuant to the terms of all of his was Anthony’s him, wife, In the event she one- predeceased to his Hattie. bequeathed son, half estate to his Gordon. The other one- bequeathed of his was divided, shares, among half be Anthony’s equal estate plaintiffs. in Hattie’s will differed from the
The distribution of the assets $1,000 will. Hattie Anthony’s provided $4,000 was to be out paid left to each of the four Plaintiffs’ York Federal and Loan Association. savings Savings of her account at to Gordon. The bequeathed account was savings balance husband. In the event bequeathed remainder of her estate was her left her, the remainder of her estate was Anthony predeceased *3 her, receive, in were to Gordon. If Gordon did not survive shares, of the estate. equal the remainder infirm, moved in with they and Hattie became Anthony
When then wife, pur- Leckrone. Gordon and Harriet Gordon and his Harriet of the sale house, proceeds in from joint tenancy, chased another with Gordon and his of the Lecrones’ home. The Lecrones resided then placed six months. The Lecrones were wife for approximately home, died. nursing they subsequently where Lecrone, alleg- Prior deaths of and Hattie Anthony to the his parents’ the terms of regarding contacted Thomas Lecrone edly Harriet, chil- wife, his and his a concern that expressed wills. Gordon Anthony prede- he and for in the event provided dren would not be Gordon, his entire estate would parents’ According ceased Hattie. Harriet and his to the exclusion of on to eventually pass entered into an oral then allegedly children. Gordon that he would of the property one-half agreed which he distribute parents plaintiffs. inherit from his prom- to make such a felt obligated
Plaintiffs that Gordon alleged This and plaintiffs. ties himself ise of the familial because only Hattie be- of the fact was in spite promised $1,000 exchange prom- to each queathed distribution, promise ised that Gordon extracted a plaintiffs alleged estate to grandparents’ from them that half of their they forgo would if and Gor- provide Anthony for Gordon’s wife and children died first don predeceased Hattie. agree-
It made to this oral was further that reference is ment in 1980. Specifically, a letter from Gordon dated December states, the letter pertinent part: wills, are [Anthony separate they
“While do have Hattie] outdated and could some Therе are no present problems. provi- sions for in the my anything widow or children event [Harriet] to me. there are no happened Similarly provisions you I other children to share with me should survive equally them. As I I you, my feelings told are that would see that this done, and I look to to see that a fair you similar distribu- tion were made if I am not I here to do it. would ask half my go share to Harriet other and the half be split equally daughter between my Ginny my son Don.” On November died and Anthony terms of his will he left all property to Hattie. four Approximately later, months died, Hattie leaving all of her to Gordon. Plain- tiffs did not the gifts provided receive for them in Hattie’s will as her savings account had previously been closed.
In a letter dated July 1982, Gordon Thomas Lecrone informed that Hattie’s estate $80,000. amounted to approximately Pursuant the parties’ previous agreement, Gordon stated his intention to dis- $80,000 tribute half of the estate to over a of three рeriod years. Gordon’s letter provides, relevant part:
“The attorney is to file nearly ready the forms with the state and I $80,000 think the figure for the final estate very will be close. I First, What have in mind is the each of following: you $1,000 receive the will, as set in the then I up plan to send $3,000. each of you *** goes If all well next I year plan to send each of an- you $3,000 other and the same the following year. *** Harriet is in complete accord with my plans but by put- *4 it
ting will, it clearly my leaves no room for any problems.” letter, a subsequent 3, 1982, dated September Gordon informed the plaintiffs that his mother’s estate was worth approximately $79,127. He that explained although he all of legally entitled to estate, $1,000 he would send each of the after the estate plaintiffs
closed. Gordon wrote:
“I still feel as I always have that half of the state will be [sic] considered a moral on to obligation my part divide between meantime, four of In the I have drwan a new you. up [sic] $9,800 sets (less aside for each of you I make to you).” allege
Plaintiffs that this letter also conforms to the parties’ pre- plaintiffs vious would receive one-half approximately arrangement, Hattie’s estate. Under this each of the plaintiffs $10,000. would still receive the funds approximately Although were death, prior be distributed to Gordon’s the will ensured that agreed distributions upon would be made. 15, 1982,
On each of the a check in gave plaintiffs October Gordon $1,000. amount of Gordon executed his will in May On $7,500 which he that each of the would receive provided plaintiffs upon maturity of a five- or instrument. seven-year security 1, 1986,
On October Leckrone died. On December Flotow, will, sent a letter the co-executor of Gordon’s William them the assets in Gordon’s estate had plaintiffs informing no point existing been where there were funds depleted make the distributions to promised plaintiffs. 26, 1987, against
On March filed a Harriet Leckrone Flotow as individuаlly, Harriet Leckrone and William Plaintiffs, their through co-executors of the will of Gordon Leckrone. trust sought impose constructive attorneys, respondents, dissipation the estate and its executors for the covert requested funds Plaintiffs also allegedly earmarked further accounting injunctive prevent of Gordon’s estate and relief to of the assets in the estate. dissipation suit, contacted to deter filing respondents
Prior to action. In an let potential opinion mine whether had a cause of they Thomas Murphy ter dated W. behalf February law firm stated that a cause of action for a constructive trust on the case of Labarbera v. Labar could be maintained based then retained bera 3d 959. were Respondents against file action defendants. Defendants, in a motion to dismiss to file response, proceeded the time defendants’ motion to dismiss plaintiffs’ complaint. Prior to heard, representation withdrew from further respondents fail- withdrew because of plaintiffs. Respondents allegedly 27, 1989, hear- parte ure to their On an ex pay legal January fees. *5 prejudice. complaint plaintiffs’ the trial court dismissed ing, hear- case for of purposes jurisdiction trial court also retained against plain- 2—611 filed both petition Leckrone's section ing Harriet respondents. tiffs and motion to filed a respondents March
On dated May 2 — 611 In an order petition. strike and dismiss section $7,000 against in sanctions the trial court awarded Harriet The trial Plaintiffs not sanctioned court. respondents. were alia, in inter found, grounded not well complaint court that the the mat or in held into inquiry law fact. The court that a reasonable in complaint respondents ters would have enabled allegations. ascertain “the and lack of merit” of their invalidity in defending amount of the sanctions was based Harriet’s costs upon It against May respondents suit. is from this order appeal.
Section 2 — 611 of the of Procedure in provides, Code Civil pertinent part: Every pleading,
“Sanctions. motion and other of a paper party represented by attorney signed an shall at least be *** one of record in his name attorney sig individual ***. nature of an attorney or constitutes a certificate him party ***; that he has read the that to the pleading best of knowl information, edge, and belief formed after it inquiry reasonable is well grounded in fact and is by existing warranted law or a good extension, faith for argument modification, or reversal law, existing it is not interposed any improper such as to purpose, harass or to cause or unnecessary delay *** *** needless increase in the cost of litigation. If a pleading signed Section, court, violation of this motion or upon initiative, its own shall an impose sanc appropriate (Ill. tion ***.” Rev. Stat. ch. par. 2 — therefore, Sanctions may, imposed against be an attorney where there is insufficient inquiry into the facts of the existing case or law.
Harriet’s petition alleged that the original complaint revealed a lack good faith part plaintiffs and their It fur- attorneys. ther stated that none the claims by plaintiffs advanced was war- ranted by nor existing good-faith law did the contain argu- extension, ments for the modification, or of existing reversal law. The petition alleged inquiry by plaintiffs’ reasonable attorneys would have revealed the of their clients’ invalidity claims and the lack of merit in the complaint. Lastly, petition alleged that as a result of this lawsuit Harriet $7,155.48 incurred expenses totaling and that and their as against plaintiffs attorneys
she was entitled to sanctions 2—611. Harriet maintains that provided appeal, section On $7,000 against her in sanctions re- awarding trial court did not err spondents. v. Chicago Title & Trust Co. Anderson 2 — 611 sanctions recently this held that section panel in the prevail of a failure to penalize party
be because Co., 177 Ill. 3d at (Chicago of their case. Title & Trust litigation sanc 621-22.) impose The section does not the trial court empower is found be simply argument theory recovery tions because Co., 177 Ill. 3d at 622. Title & Trust unjustified. Chicago court, case, sanctions re against The trial instant awarded unjustified. it found their spondents theory recovery because v. Labarbera *6 held that reliance on Labarbera respondents’ The court 959, their constructive trust (1983), support theory 116 Ill. 3d App. grounds Labarbera on distinguished was The trial court misplaced. estate and in the instant case that Labarbera involved an intestate existence, that a constructive being the implication there was a will Sanctions existing where there is an will. may imposed trust not be respondents’ the trial court’s upon were awarded based belief investigation meaningful and lacked theory recovery was contrived court also found that the re or law. The trial existing facts accounting in that an had al quested accounting inappropriate the time of prepared plaintiffs’ request. been at ready to section 2—611 sanctions A trial court’s of fees award (In Custody re absent an abuse discretion. be disturbed 739, the award of fees 744.) Although 185 Ill. 3d (1989), App. Caruso sanctioning respond find that the trial court’s discretionary, we in this case. ents was unwarranted Ill. (1988), App. 177 Trust Co. v. Anderson Chicago Title & is required of what thorough explanation panel provided this and exist into the facts inquiry” a “reasonable making
of counsel in “[wjhether of a We stated filing complaint. law to the ing prior by objec must be determined was ‘reasonable’ particular inquiry the time the existing at the circumstances upon based tive standard (Chicago to the court.” presented other legal paper or pleаding that the also found Co., 3d at We App. 177 Ill. Title & Trust counterpart the Federal to Federal Rule *7 persuasive. bera Nor do respondents’ we find theory recovery so untenable as would warrant sanctions. The fact that Labarbera in volved an intestate estate does not out rule that a con possibility structive trust be may imposed in similar circumstances where there is a will in existence. As respondents argue, constructive trusts and wills need not be mutually exclusive. A constructive trust im may be posed despite existence of a will. Hobin See v. O’Donnell (1983), 940, 942; Ill. 3d App. v. (1969), Neurauter Reiner 117 Ill. 2d App. 141, 146-47.
A constructive trust is a simply which restitutionary remedy may be imposed one compel who holds it unfairly convey another to whom it justly belongs. (Zack v. (1982), App. Sims 108 Ill. 16, 3d 29.) constructive trust facts are imposed whenever “[A] enriched holding property unjustly would be person shown which added.) (Emphasis if to retain that permitted property.” he were into at “Constructive trusts are divided (Zack, 29.) 108 Ill. 3d App. other, exists, actuаl fraud and the general groups one, two where — David v. relationship.” there a confidential or fiduciary where exists 1023, 1027. 3d (1980), Russo 91 Ill. case, find that it is alleged is not in the instant we
While fraud rela allege that a confidential respondents not too far-fetched of their fa and Gordon virtue tionship existed between rela as to what relationship. type milial “There are no set bounds [of] ‘The of the protection. origin to invoke such tionship necessary of influence are immaterial. It exists when confidence and the source ” (David, one trusts in and relies on another.’ person 227, Plain (1958), 232.) v. 15 Ill. 2d Lybeck at Anderson quoting occupied special position L. Leckrone tiffs “Gordon plaintiffs.” and trust with confidence the trial court’s award of sanc- reversing of our decision light raised
tions, by respondents not address' the second issue we need the excessiveness of the sanctions. concerning reasons, of the trial court is re- For thе the decision foregoing versed.
Reversed.
JIGANTI, P.J., concurs. McMORROW,dissenting:
JUSTICE of the trial majority’s I from the reversal dissent respectfully firm re (hereinafter on law court’s of sanctions imposition the Illinois to section 2—611 of “respondent”) pursuant ferred to as 611). ch. (Ill. par. Procedure Rev. Stat. Code Civil 2 — sanctions when impose 2—611 authorizes a trial court Section investigation to a reasonable prefiling has failed to attorney perform in law and grounded is well position determine the client’s whether 611.) par. fact. Rev. Stat. ch. (Ill. 2 — if only subject appeal 2 — 611 is to reversal sanctions under section v. Ander Title & Trust Co. (Chicago its discretion. the court abused I dissent be 532 N.E.2d son that the majority the determination agree cause I do not its discretion. able trial court abused pay that respondent ordered instant cause
The trial court the suit to defend $7,000 incurred defendant the expenses towards *8 The on the advice of court brought by plaintiffs respondent. section 2—611 thе court found
the sanctions because not behalf was complaint respondent plaintiffs’ filed existing good-faith warranted law grounded well fact and extension, modification, law. existing for the or reversal of argument that, the trial court’s based fully The record determination supports sup- could not legal legally on established precedent, complaint and the ported, complaint was factually inadequate, investigation into objectively failed make an reasonable the law of facts I no prior filing complaint. Consequently, find abuse the trial court’s discretion reversal. justifying
I pertinent The facts of section 2—611 sanctions precipitating entry upon are filed suit on be- dispute. Respondent half of plaintiffs, grandchildren of who are and Hattie Anthony record, Lecrone. Hattie According sepa- each had Anthony rate left Hat- Anthony’s wills. will his entire estate his death to tie. If Hattie left his es- predeceased Anthony, half of Anthony’s son, tate to his Gordon Leckrone half of the estate to (Gordon), and left her plaintiffs. Anthony. Hattie’s will all of estate to virtually Hattie, If left her Anthony predeceased Hattie’s will entire estate to $1,000 Gordon to the for a plaintiffs, exclusion except bequest each the plaintiffs. will, Under Hattie’s if Gordon Hat- predeceased tie, plaintiffs estate, would inherit the entire the exclusion Gor- wife, don’s Harriet Leckrone (Harriet), and Gordon’s children. Re- spondent prepared and filed plaintiffs’ complaint, alleging plaintiffs Gordon entered into an oral whereby that, if agreed Hattie, mother, he survived and inherited her es- he, tate, Gordon, would share half of his inheritance with the plain- agreement, tiffs. Pursuant to that agreed oral to share half wife, Harriet, Hattie’s estate children, with Gordon’s and Gordon’s in the event that Gordon predeceased plaintiffs’ Hattie. complaint allеged Gordon “stated that he felt a moral make obligation to such distribution the fact that despite the terms Hattie Lecrone’s only required $1,000.00 Will him to make payments of to each of the Plaintiffs.” copies Attached to the complaint were two letters writ- ten Gordon to one of the plaintiffs that referred to and acknowl- edged this alleged oral agreement arid intention to Gordon’s execute will that would estate, ensure half of receipt of Hattie’s the event that Gordon died before such in full. making testament, re- included a of Gordon’s last will and complaint copy to them. specific distribution to the flecting bequests such full making Plaintiffs’ that Gordon died before complaint were in- distribution to stated that funds in his formed after Gordon’s death that there were insufficient *9 al- specific plaintiffs. estate to his to the Plaintiffs satisfy bequests leged showing disposition that had received a written statement they A to the prevented сopy of Gordon’s estate that plaintiffs’ complaint. of this document was attached to the funds them they allegedly promised Because did not receive the determine Gordon, respondent one of the contacted plaintiffs estate, against had recourse Gordon’s or any legal whether wife, record, against According respond- Gordon’s Harriet. letter, which stated that opinion ent sent an against cause of action the Estate “may potential have [Gordon] for of a trust on all monies imposition and his wife constructive his from the estates of your grandpar- received and wife by [Gordon] letter further stated that a for respondent’s “complaint ents.” The one on recovery of constructive trust is not that based imposition According or under of tort or contract law.” compensation any theory letter, action made to the stated that “no cause of can be respоndent for of contract law” and that “Illinois does not your on behalf breach the consideration is recognize the existence of a contract which affection, The let- obligation.” respondent’s opinion love and or moral of the con- following analysis “potential” ter clients’ provided structive trust claim: is a rem- restitutionary
“The for constructive trust a court imposed by which arises of law and is edy by operation in situations where a public policy grounds, on and equitable or profit by wrong would person holding money if per- at the of another he were expense be enriched unjustly of action to retain It is our that such a cause opinion mitted it. that uncle showing your can maintained on behalf your be [Gor- of the estate of your his one-half and wife received [sic] don] you there was an grandparents and entitled to would be your family and uncle that side your a com- firm base attempt of thаt estate. Our would one-half the case of Labarbera v. Labar- for constructive trust on plaint bera.” it on to would letter went state respondent’s opinion wife, Gordon’s on funds held a constructive trust impose
seek to the assets which were from Harriet, “she have benefited since “may and have plaintiffs’] grandparents’ received from estates” [the converted them taken assets were in the name and which [Gordon] held in her sole name.” tenancy either into assets or assets joint (Emphasis added.) an filing also recommended the action for an from respect to the funds received Hat-
accounting tie’s such disposition any respondent’s estate and the assets. accounting your letter to that if “that un- plaintiffs stated an revealed cle faith that he did good made investments in and/or have [Gordon] bills, extensive medical have the [you] option dropping would litigation However, at time. no estate hаs opened up as been uncle, accounting an action for to be the your bringing appears only way to seek to have a full and made of un- accounting your complete cle’s actions his prior to death.”
Thereafter, behalf, against filed suit Gor- don’s estate against wife, Harriet. The complaint requested trust, the imposition of a accounting, injunctive constructive relief. trust, With of a respect constructive the com- plaint merely alleged Gordon, “as uncle the primary *10 caretaker of their grandparents, occupied position of special confidence and to trust the Plaintiffs.” the According pleading, confidential evidenced relationship by frequent corre- “[t]his Plaintiffs, spondence between Gordon and the his niece Leckrone and nephews, existing among which reflected the oral agreement par- ties, Leckrone’s Gordon intent to distribute one half of the estate of Hattie A. Lecrone to the should Plaintiffs he inherit such property to so for provide such in his The complaint distribution Will.” al- leged that “the agreement among oral such parties provisions for the Plaintiffs made by were Gordon Leckrone in consideration for the love and he and, affection felt for Plaintiffs as stated Gor- by himself, don Leckrone as a result of the moral he felt obligation to- Plaintiffs, ward the as the children of his deceased brother.” The com- plaint alleged “pursuant the existing that to agreement between Gordon Plaintiffs, Leckrone and the Plaintiffs are entitled to” half of the funds Gordon inherited from Hattie.
The further that of complaint alleged “as a result the existing confidential relationship, Plaintiffs, between Gordon Leckrone and the a constructive trust should be on the of Gordon Estate L. Leckrone for amount of due to the Plaintiffs in order funds to avoid the unjust enrichment of Harriet Leckrone and to ensure that the Plaintiffs receive the are pursuant funds entitled to to they justly the Plain- agreement oral between Gordon Leckrone and existing
tiffs.” accounting also of the funds which requested alleged they inherited from Hattie. The had
Gordon had to to plaintiffs been informed there were insufficient funds distribute will, those set forth in Gordon’s and that specific bequests had advised of the reasons for this shortfall. Plaintiffs been of the accounting had written to Harriet full they “requesting Leckrone, and all documents including any reflecting estate of Gordon Leckrone or and/or investments any purchases, expenses Harriet Leckrone and all in the Estates regarding any Lecrone or owned Gordon Leckrone.” The Anthony and Hattie refused and to refuse complaint alleged that Harriet continue[s] “ha[s] accounting.” According to the comply request to with Plaintiffs’ and Hattie Le- pleading, plaintiffs, grandchildren Anthony “as Plaintiffs crone and virtue of the oral made between death, par- to his are beneficiaries and interested prior and [Gordon] an account- ties in the Estate of and are entitled receive [Gordon] and the and all ing as to the status of Estate assets contained therein.” relief, injunctive requested in a count for complaint, separate assets derived from the restraining dissipating
an order Harriet from or his parents. estates Gordon Harriet filed a motion plaintiffs’ complaint, response relief could for failure to state a claim which pleading
dismiss 615.) The motion granted. (Ill. par. Rev. Stat. ch. 2 — that, to the terms argued pertinent part dismiss Lecrone, the estate of Hattie had and Hattie entire Anthony wills out that Gor to Gordon. The motion also rightfully passed pointed that Gordon’s es gift plaintiffs, don’s for a to the but provided bequests. these satisfy specific tate contained insufficient funds to attached as an exhibit аccounting, motion to dismiss noted that an This had been plaintiffs’ complaint, already provided ex estates and set forth the various accounting disposition estate. In her second the shortfall in Gordon’s the reasons for plained *11 that the dismiss, respondent to Harriet requested amended motion sanctioned, 611, for their failure under section plaintiffs and the be 2— underlying and facts into the law investigation to make a reasonable the plaintiffs’ complaint. dismiss or to the motion to response
The did not file a respondent also respondent the complaint. file a motion for leave to amend fees under request file to Harriet’s response did not draft or Rather, section 2 — 611. was leave respondent sought the allowed Thereafter, the to as for the before date withdraw counsel on the the which motion was scheduled to heard trial dismiss be court, en plaintiffs advised the withdrawal order court, tered the “in оrder protect and advised interests, It is your it is own in this cause your appearance [sic] [sic]. our the further that said new counsel should consider ad suggestion, cause, of an so that sanc dismissal this visability voluntary [sic] tions the requested as motion dismiss be avoided.” record indicates that did not obtain substitute counsel, appear and that did not at the trial court’s hearing Following hearing, motion dismiss. the trial court allowed the motion to dismiss and com- dismissed entire plaint court prejudice. trial continued the matter for consid- eration petition of Harriet’s fees section 2—611. Following under all briefing by parties hearing on the section 2—611 petition, trial court sanctions in the amount of $7,000. In its oral pronouncements, the trial court observed that its decision was based “only objective standard and [on] [did] rely[ on hindsight.” The court went on to state: ]
“I have reviewed the case Labarbera and for the life me I can’t see any objective how could have lawyer believed that case would control these rise give facts and to a potential *** for recovery. To my view the from the theory very begin- ning is unsupportable; including letter to the client from [respondent]. The letter so contrived is so con- theory trived that it cannot as the product imaginative be described thinking or artful It is the lawyering. product the most char- I thing itable could say thinking. is wishful Let’s throw something into court and hope Harriet Le- crone some at throw the file. this money That’s all file [sic] to me. says I’m satisfied that there was meaningful no investigation ***
the law or the facts. I’m satisfied that law- yers had on hand knowledge sufficient and sufficient informa- tion from was, their client to know that this if not frivolous, then clearly inappropriate in a seri- presented ous fashion. The accounting not only inartfully drafted, the ac- counting count flies in the face fact that the accounting at for, hand at the it time that wаs asked repre- with no *12 386 inap- at hand was in fashion accounting
sentation that the propriate.”
II section of the plaintiffs, At the time filed suit on behalf governed of the Illinois Code of Civil Procedure 2— 6 11 legal and obligation analyze attorney’s nature and extent of an 1987, 110, 2— par. Stat. ch. (Ill. of a client’s claim. Rev. factual basis he has made certify requires attorney Section 2 — 611 an 611.) legal and basis investigation into the factual reasonable objectively claims, investigation that this reveals certify of and to his client’s 1987, Stat. (Ill. in law and fact. Rev. grounded client’s is well position the trial court to determine 110, It is the of 611.) province ch. par. 2 — objec has been legal investigation and factual attorney’s whether an (Chi surrounding circumstances. light reasonable in all tively Ill. (1988), v. Anderson 177 cago Title & Trust Co. great is entitled to The trial court’s conclusion 595.)
532 N.E.2d if it against only and deference and will be disturbed weight Trust, Ill. App. 177 Chicago Title & weight manifest evidence. 3d at 625.
A or not re rests whether decision to reverse majority’s the im existing law would warrant reasonаbly believed spondent in the complaint the allegations a constructive trust on position of imposition regarding of this case. Illinois law setting in the factual “A trust is an constructive trust is well established. a constructive enrichment unjust prevent a court remedy imposed by equitable relationship. fiduciary or of a actual fraud breach through of a party 127 (1989), Co. Security Casualty (In Liquidation re [Citations.]” Ill. 2d Court Sut 447, Supreme The Illinois 434, 537 N.E.2d 186, 193-94,533 N.E.2d stated: 126 Ill. 2d Vogel(1988), iles v. in two situations: imposed trust is generally “A constructive equita- considered as first, fraud is where actual or constructive there is a and, second, where the trust raising grounds ble duty. of that breach duty subsequent fiduciary [Citations.] duress, coercion or arise A also when constructive trust is a wrongdoing Some mistake is present. [Citation.] form trust. a constructive prerequisite [Cita- tion.] the com- unless trust will not
A constructive such [citations], allegations wrongdoing specific makes plaint
387 duress, or mistake. fraud, coercion fiduciary duty, as breach of Furthermore, a constructive trust grounds imposing as to lead clear, strong unequivocal so convincing, must be added.) one (Emphasis but conclusion. [Citations.]” Inc. v. Illinois Founders Insur Enterprises, See also Charles Hester 1319; Perry v. Wyeth ance Co. 114 Ill. 2d 499 N.E.2d (1986), 861; (1962), (1959), Ill. 2d 184 Dial v. Dial 17 Ill. 2d N.E.2d Construction, 404; Na 162 N.E.2d Gluth Brothers Inc. v. Union tional 1345. Bank N.E.2d filed and complaint allege drafted did the existence of Nor did actual constructive fraud.
request duress, coercion, of or constructive trust because mistake. did Significantly, plaintiffs’ complaint allege “wrongdo- ing” or a of The fiduciary complaint allege breach failed to facts duty. to establish a On of fiduciary legal insufficiency relationship. complaint alone, in this respect the trial court granting was correct defendant’s motion to dismiss. alluded to existence of a relation “confidential
ship” and Although between Gordon. the terms “confiden tial” “fiduciary” e.g., and have been used In interchangeably (see, re (1988), 275, Estate Kieras 167 I 263), Ill. 3d 521 N.E.2d App. of utilize the term “fiduciary” for the sake of clarity. A fiduciary relationship arises “one has party reposed when trust and confidence in another thereby gains who an influence and super iority over the other. 147 (Taino (1986), v. Sanchez Ill. [Citation.]” 874, App. 871, 3d Thus, 498 N.E.2d 571.) “fiduciary relationship ex ists where there is a on special reposed confidence one side and a re sulting superior knowledge and influence other. [Citation.]” (A.T. Kearney, International, Inc. v. INCA Inc. Ill. (1985), 132 App. 655, 661, 3d 1326; 477 N.E.2d Chicago see also Land Clearance Yablong 204, 145; Comm’n v. (1960), 20 Ill. 2d N.E.2d 170 re Es tate Shedrick 122 (1984), 861, Ill. 3d 462 App. 581.) N.E.2d source of moral, the relationship may social, domestic, be personal. (Anderson Lybeck v. (1958), 15 Ill. 2d 154 N.E.2d Sig nificant factors fiduciary determination whether a relation ship exists degree include the of kinship between the the dif parties, ferences in their ages, health, condition, education, mental and business experience, degreе reposed and trust in the dominant party. (Kester 419; v. Crilly (1950), 425, 405 Ill. 91 N.E.2d In re Es tate (1988), 275, 263; Kieras Ill. 167 3d 521 N.E.2d Metropu Glass, los v. Chicago Art Inc. (1987), 156 Ill. 3d 509 N.E.2d 1068.) Ultimately, there must a showing of domination and subser-
388
vience resulting in a benefit to
grantee.
(Maley v. Burns (1955), 6
Ill.
2d
In light of this precedent, the complaint drafted and filed by the respondent was legally insufficient to state a claim for the imposition of a constructive trust. To support its trust, for a constructive request the complaint drafted and filed by alleged vague and conclusory terms the existence of a relationship” “confidential be- tween the plaintiffs Gordon, because was the Gordon *** “uncle and the primary caretaker of grandparents their [and occupied a special position of trust with therefore] confidence and Plaintiffs.” The pleading alleged that correspondence between Gordon and the plaintiffs regarding agree- oral the parties’ ment was evidence of the “confidential Gordon relationship” between and the plaintiffs. The agree- that the oral complaint further alleged ment was made by Gordon “in the love affec- consideration for tion he felt for the moral obliga- Plaintiffs and as a result tion he felt his deceased Plaintiffs, toward the as the children brother.” half entitled pleading alleged that plaintiffs were their grandparents’ agreement” “pursuant estate to the oral be imposed should plaintiffs, and that a constructive trust *14 “in to ensure order and to avoid unjust the enrichment of [Harriet] pursu- that the entitled Plaintiffs receive the funds are they justly plain- and the ant to the existing agreement” Gordon oral between tiffs. by filed and drafted
Thus, essentials, to its the stripped relationship be- fiduciary the respondent the existence of a suggested plain- the Gordon (1) tween Gordon and the because: plaintiffs the (2) grandparents; tiffs’ of their uncle and the caretaker primary regarding an oral agreement and Gordon had founded agreement the this oral estate; (3) grandparents’ and “love his and to the Gordon’s obligation” sense of “moral and affection” for the plaintiffs. fiduci- a existence the establishes None of these circumstances ties familial the the plaintiffs: ary between relationship love obligation of moral
between sense including the parties, (Perry relationship. fiduciary forth a affection, to set were insufficient
389
Metropulos
v.
Wyeth (1962),
v.
250,
861;
Ill. 2d
184
see also
25
N.E.2d
Glass,
Art
Inc.
727,
1068;
Chicago
App.
156 Ill.
3d
509 N.E.2d
(1987),
Beelman v. Beelman
684,
(1984),
55.)
121 Ill.
3d
460 N.E.2d
App.
Also,
as the
its
letter
respondent acknowledged
opinion
for a contract.
love and affection do not constitute consideration
plaintiffs,
(O’
DeLaney (1980),
v.
292,
N.E.2d
92 Ill.
3d
Neill
addition,
oral
the existence
does
establish
to a con
fiduciary
give
of a
nor does
of a contract
rise
duty,
breach
structive trust. Swanson v. Randall
(1964),
30 Ill. 2d
195 N.E.2d
v.
Estate
Evans
Berko
656;
316;
(1951),
408 Ill.
N.E.2d
Kern
(1986),
142 Ill.
The appellate court determined that there a fiduciary existed rela tionship between plaintiff and his brother. The court “the noted obvi ous moral obligations which arise from this relationship” [familial] (116 Ill. App. 966) 3d at plaintiff’s parents. brother and their In this regard, the court took plaintiff’s into account that the brother had always parents’ handled in the affairs and that past, plaintiff trusted his convey brother to half of the properly parents’ es-
390 to that “the of the
tate the The court reasoned existence plaintiff. parents confidential relationship [plaintiff’s brother] [his] acknowledged by [plain created a of influence which was presumption (116 the Ill. 3d at signed tiff’s when he declaration” brother] entitlement, succession 966) under intestate recognizing plaintiff’s law, plaintiff’s to of the estate. The court concluded that parents’ half enrichment virtue of this relation “unjust brother received at ship.” 966. significant cause bears no to the facts instant resemblance Labarbera,
Labarbera. entitled to half of lawfully In plaintiff in Labar estate. The proceeds parents’ plaintiff of his deceased bera to preserve plain trust and confidence in his brother placed tiff’s vested interests in the estate and to eventually convey plaintiff’s Labarbera, to In entitlement to legal plaintiff’s share him. there was plaintiff’s share which was in the of the wife of deceased possession entitled, bar, under brother. the case at were wills, grandparents’ their to half of the of the grandparents’ proceeds wife, Hattie, left to his Anthony’s upon estate. his entire estate will, to the terms of Hattie’s the entire estate According death. Gordon, bequests which passed exception specific to with small lawfully received. Gordon inherited and was Consequently, to the of the of the of the estate terms wills possession bulk inherited, of the he Gor and Hattie. As owner estate Anthony his life as during don had the of his right dispose absolute he saw fit. In re Estate Puetz Ill.
N.E.2d 1277. to show that Gordon nothing
There is in plaintiffs’ undue influence any cаme into of the estate because of possession Gordon wrote to upon plaintiffs. plain- Gordon exerted Hattie or one-half of the estate obligation tiffs that he felt a moral divide However, obliga- of this moral expression Gordon’s with the interest present plain- prompt plaintiffs part tion did not allege any did not tiffs in their estate. Plaintiffs grandparents’ had wife, Harriet, wrong- undertook any that Gordon or his facts show specific bequests ful act that caused the failure of the to show in the record nothing there is Consequently, Gordon’s will. enriched, to the wife, Harriet, plain- unjustly that Gordon or his agreement. Failing any oral disadvantage, by parties’ tiffs’ enrichment, plaintiffs unjust influence and specific allegation undue Labar- under fiduciary duty not state a claim for a breach of could of the construc- bera. The majority notes that correctly misappropriation Labarbera tive trust “was due funds plaintiff’s (Emphasis (220 brother.” added.) App. 3d at allegation There is no indication or misappropriation *16 case at bar. opinion,
In the my trial court found an properly objectively reasonable no analysis provides Labarbera demonstrates that it le- in the case bar gal support at recommendation respondent’s that suit Therefore, be filed of a trust. constructive I do not complaint accept majority’s determination that drafted and by filed well in law. respondent grounded was respect existed,
With to whether a fiduciary ma relationship jority reasons that it was “not respondents too far-fetched for to al lege that a plaintiffs confidential existed between relationship virtue of their by relationship.” (220 familial Ill. 3d at App. 380.) The also states that in the com majority plaint that Gordon “occupied special position confidence and trust Ill. plaintiffs.” 220 3d at App. 380. neglects are majority specific note that there nо facts al leged in the plaintiffs’ complaint demonstrate the existence of “trust and confidence” a fiduciary relationship that would constitute majority relying Gordon. The in error in upon the fi family relationship parties between the to demonstrate a In duciary relationship. In re 167 Ill. 3d (1988), App. Estate Kieras 275, 263, a gift challenged 521 N.E.2d to a son the father was the remaining siblings. recognized The Kieras court a rela even tionship parent relationship between a and child is not a as a fiduciary matter of law. (Kieras, 280.) 167 Ill. 3d at “It has been well es App. *** *** tablished that the mere fact of blood does es relationship tablish a or fiduciary relationship. confidential v. (Perry [Citation.]” Wyeth 250, 861; (1962), 253, Metropulos 25 Ill. 2d see also 184 N.E.2d Glass, v. Chicago 727, Art Ill. 3d (1987), App. Inc. 509 N.E.2d 1068; (1984), App. Beelman v. Beelman 121 Ill. 460 N.E.2d 55; Edwards v. Miller 583.) 378 N.E.2d Thus, contrary majority holding, relationship be fiduciary tween Gordon does not arise virtue of the uncle- was, therefore, nephews-niece as a mаtter of law. It in relationship cumbent upon facts to a allege giving fiduciary rise relationship utterly and breach thereof. The failed to do this.
B an record also shows that the failed to make ob- jectively investigation plain- reasonable into the facts supporting
tiffs’ claims. The majority wholly neglects to consider this additional violation of section 2—611. Under section an attorney legal proceed cannot institute 2 —
ings is, fact, order to determine there whether sufficient evi Trust, dence to support position. (Chicago client’s Title 177 Ill. & letter, opinion 3d at In its respondent suggested filing suit appropriate “may because Harriet have benefited from the assets which were received from the es plaintiffs’ grandparents’ tates” and taken “may have assets which were the name of Gordon LeCrone and converted them either into joint tenancy assets or assets addition, added.) be held her sole name.” the re (Emphasis determined if it spondent recommended that that Gordon “made bills, in good investments faith and/or extensive medical [had] [the would have the at plaintiffs] option dropping litigation time.” These recommendations from the section respondent violated “ ‘ 2 — 611. Under section in attorney cannot “file now and 2 — ’ ” Trust, vestigate later.” Title & 3d at (Chicago *17 1000; re quoting In Mitan 518 N.E.2d see also In (7th 1985), re TCI Ltd. Cir. 769 E2d It is also notewor thy that after Harriet filed a motion to dismiss the and re sanctions, from the quested section 2 — 611 withdrew suggested case and retain substitute counsel to “con cause, sider the of an dismissal of this so advisability voluntary [sic\ that sanctions in the to dismiss avoided.” requested as motion the trial court’s conclusion that “there was supports record meaningful investigation no of the law or facts” be- fore it I cannot accept majority’s filed suit behalf. deviation from and reversal of the trial court’s sound unjustified judg- ment in In the trial did my opinion, clearly the instant сause. court not abuse its discretion. reasons, I respectfully light majority’s
For these dissent. I disposition, remaining arguments. do not address the parties’ notes committee advisory of section ascertaining purpose 611, instructive to section 2 — “ to chill an attor not intended rule is noted that 2 — 611. We ‘[t]he ” theories.’ legal factual or creativity pursuing or enthusiasm ney’s Advisory Co., quoting 3d at App. 177 Ill. Trust (Chicago Title & 165, 199 (1983).) Committee Notes to Federal Rule 97 F.R.D. Moreover, empowered this noted that a trial court is not section panel by argument 2— 6 11 to a sanction it found an impose simply because for relief to Title Trust requested ground unjustified. Chicago & Co., 177 Ill. 3d at 622. App. that a constructive trust should be Respondents’ argument based Labarbera v. Labarbera upon would not warrant be considered tenuous but Labarbera, against of sanctions. In an action his plaintiff brought brother’s for a belonged widow constructive trust over funds which his parents. deceased These funds were allegedly misappropriated by brother, the plaintiff’s who had since died. Apparently, prior death, plaintiff’s and his plaintiff brother’s brother had entered into an agreement in which the certain funds plaintiff was receive from parents’ funds, however, their estate. The given were never the plaintiff. court, decision, the trial court’s appellate reversing allowed for the imposition of a trust. The court into constructive took consid eration principles equity and the fact that an had been reached the plaintiff and his brother regarding distribu tion of funds in their parents’ (Labarbera, estate. 3d at 965.) The court held appellate funds had been obtained plaintiff’s brother virtue of the familial and confidential relation ship between the brother plaintiff’s Although and his father. the court concluded that the plaintiff’s claim was in statutory based testate share of his estate parents’ (Labarbera, 116 Ill. 3d at 2), n. its imposition of the trust constructive was due to the mis appropriation the funds plaintiff’s brother. We do not find the trial court’s factual of La bar distinguishing