Susan Ball v. Cherie Kotter

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1969
S USAN B ALL, et al.,
Plaintiffs-Appellants,
v.
C HERIE K OTTER, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cv-01613—Robert M. Dow, Jr., Judge.
A RGUED JANUARY 16, 2013—D ECIDED JULY 23, 2013
Before B AUER and H AMILTON, Circuit Judges, and
M ILLER, District Judge.Œ
B AUER, Circuit Judge. This movie-script-like case features
three main characters: Donald C. Hedstrom, a now-de-
ceased, ex-husband buyer; Cherie Kotter, an ex-wife real
Œ
The Honorable Robert L. Miller, Jr., District Judge of the
United States District Court for the Northern District of
Indiana, sitting by designation.
2 No. 12-1969
estate agent; and Hope Geldes, the decedent’s real estate
attorney. The action begins with Hedstrom’s desire to
purchase two condominium units in Chicago’s Lake Point
Tower. He retained the services of Kotter and Geldes to
make that happen. After a series of events, Hedstrom
eventually purchased the desired units—one unit was
titled to Hedstrom and Kotter as joint tenants with
rights of survivorship; the second to the Kotter Family
Trust. Shortly thereafter, Hedstrom died, and in accor-
dance with the first unit’s title, Kotter became the
sole owner of the property.
Other characters in the script, Susan L. Ball and Jan K.
Witteried, two of Hedstrom’s children—the administrators
of Hedstrom’s estate (the Administrators)—were dis-
pleased with this result. Believing that the units were
not titled in accordance with Hedstrom’s desires,
they filed a two-count lawsuit against Kotter1 and Geldes
seeking to recoup the fees and commissions Kotter and
Geldes earned in the transactions, as well as receive
compensation equal to the combined market value of
the two properties or, alternatively, a judgment transfer-
ring title of the units to Hedstrom’s estate. The count
against Kotter was for breach of fiduciary duty, which
arose out of the interest she received in the two
condo units. The other count was against Geldes for
legal malpractice, alleging that she failed to recognize
certain conflicts of interest in the two transactions.
1
The lawsuit names Kotter, individually, and the Kotter
Family Trust. We refer to the parties collectively as “Kotter.”
No. 12-1969 3
Kotter and Geldes moved for summary judgment after
discovery. The Administrators did the same. The
district court granted summary judgment in favor of
Geldes because expert testimony was needed to
delineate the standard of care required of her, and the
Administrators were barred from presenting the
required testimony. The district court initially denied
Kotter’s motion but later granted summary judgment
in favor of her as well, concluding that the undisputed
evidence demonstrated the units were titled in ac-
cordance with Hedstrom’s intent and Kotter did not
breach her fiduciary duty to Hedstrom. The Admin-
istrators appeal both decisions. We affirm.
I. BACKGROUND
A. Underlying Facts
A brief synopsis of the parties’ underlying relationship
is necessary to understand the storyline of this case.
Ball and Witteried are two of Hedstrom’s children from
his first marriage. In 1998, Hedstrom married Kotter, a
licensed real estate agent in the State of Illinois.
Their marriage lasted “about two years.” Nonetheless,
Hedstrom and Kotter were on good terms at the time
of Hedstrom’s death, and Hedstrom went so far as to
refer to Kotter as his “good friend and companion” in
his will and living trust. Additionally, there is no
evidence that Hedstrom lacked mental capacity or had
impaired mental capacity at any time during the events
at issue.
4 No. 12-1969
We fast forward to July 2006; that is when the events
in question really began.
Hedstrom decided to purchase two condominium
units in Chicago’s Lake Point Tower. (One condo is “Unit
4705”; the second is “Unit 1518.” We refer to each condo
by its respective unit number and the two units col-
lectively as “the Units.”) To make his desire a reality,
Hedstrom needed assistance. He reached out to Kotter
to act as his real estate agent for the purchase of the
Units. He also reached out to Geldes to be his real estate
attorney. Kotter and Geldes had never before worked
together on a real estate transaction.
On July 26, 2006, Geldes sent Hedstrom two retention
letters that corresponded with each of the two Units.
Geldes did not send the letters directly to Kotter.
Each letter required a signature of acceptance from
Hedstrom. Hedstrom signed each of these letters on
July 30, which confirmed his acceptance of the terms of
Geldes’ representation, and he sent them back to Geldes.
On the morning of July 26, Kotter sent Geldes an
email that said, in part, “[Hedstrom] is taking title in
another name. He will let me know the proper way to
prepare the deed. [ . . . ] Don cannot hear over a phone so
I will be answering all questions for him.” Kotter also
told Geldes around that time that Hedstrom would
be unavailable “until the end of the week of August 1,
2006,” because of surgery.
On July 31, Geldes sent letters regarding each of the
Units to the attorneys for the sellers of the Units. In each
letter, Geldes wrote, “At closing, title for Unit shall be
No. 12-1969 5
conveyed by warranty deed to Mr. Donald Hedstrom.”
Hedstrom and Kotter were copied on the letters via
email. In response, Hedstrom emailed the following
message to Geldes that evening:
For the last time, I’m going to repeat that there is to
be NO mortgage on units 1518 and 4705 that I am
purchasing in Lake Point Tower. I have made arrange-
ments to have the required funds available at the
day of closing or before. Also I have written in at
least 4 documents that these 2 properties will be
jointly owned by Cherie Kotter and me and you
have copies of these. Please comply or I will have to
get another attorney.
The next morning, on August 1, Geldes responded to
Hedstrom’s email. She wrote, in part,
Please allow me to explain my letter. . . . Cherie had
asked me to discuss with you both, whether you
wanted to own it as joint tenants with right of
survivorship, tenants in common or set up a living
trust. . . . The seller’s attorney will not be preparing
the deeds until the end of the week. We can change
title at any time.
Kotter was copied on the email, and about thirty
minutes later, she responded. Kotter wrote, “Regarding
4705 [. . . .] Please put deed to that unit in the names
Don C. Hedstrom and Chrie [sic] S Kotter as joint tenants
with rights of survivorship[.]” This email was not sent
to Hedstrom.
Looking specifically to Unit 4705: later that day, on
August 1, Geldes sent a revised modification letter to
6 No. 12-1969
the attorney for the seller of Unit 4705 in response to
the instructions she received from Kotter. The letter
stated in pertinent part, “At closing, title for Unit shall
be conveyed by warranty deed to Mr. Donald C.
Hedstrom and Ms. Cherie S. Kotter, as joint tenants
with right of survivorship.” (emphasis in original). Geldes
sent the letter to the other attorney via facsimile and
U.S. mail. Hedstrom and Kotter were copied via email.
Geldes testified that she spoke to Hedstrom on the
telephone shortly after sending the revised letter. Ac-
cording to Geldes, she explained to Hedstrom the
legal implications corresponding to the different
manners in which the Units could be titled. Also
according to Geldes, Hedstrom explicitly told her that
he “wanted to take the Properties jointly with rights of
survivorship because he wanted to take care of Cherie
Kotter and ensure that the Properties would pass to
Kotter upon his death as he was leaving several other
properties he owned to his children.” Hedstrom’s will
and living trust confirmed that Hedstrom left other
properties to his children.
On August 4, 2006, Unit 4705’s seller assented to
the modifications in the August 1 letter. The closing for
Unit 4705 was held on August 14, 2006. Hedstrom,
Kotter, and Geldes all attended it. The deed prepared
listed the “Grantee” as “Donald C. Hedstrom and Cherie S.
Kotter.” The deed included four possible options as to
how the Unit could be titled: as tenants in common; not
as tenants in common but as joint tenants; not as tenants
in common nor joint tenants, but as tenancy by the
No. 12-1969 7
entirety; statutory-fee simple. Above the four options
was “Strike Inapplicable.” The record indicates that, at
the closing, Kotter and Hedstrom watched as Geldes
drew lines through the options “as tenants in common,”
“not as tenants in common nor joint tenants; but as
tenancy by the entirety,” and “statutory-fee simple.”
They also watched as Geldes handwrote the phrase “with
right of survivorship” after the phrase “not tenants in
common but as joint tenants.” Geldes testified that she
explained to Hedstrom and Kotter that she “was
making sure that the deed reflected Mr. Hedstrom’s
wish that the property be titled to Mr. Hedstrom and
Ms. Kotter jointly with rights of survivorship, as
Mr. Hedstrom had previously requested on the phone,”
when she made the changes. Geldes also testified that
Hedstrom verbally assented to each handwritten
change she made to the document.
The deed to Unit 4705 was properly recorded; it identi-
fied that the title was held by Hedstrom and Kotter
jointly, with rights of survivorship.
The titling history for Unit 1518 is significantly more
complex: on August 4, 2006, Geldes sent an attorney
modification letter to the attorney for the seller of Unit
1518. She wrote, “At closing, title for Unit shall be con-
veyed by warranty deed to Mr. Donald Hedstrom
and Cherie S. Kotter, as joint tenants with right of
survivorship.” Geldes sent the letter to the attorney via
facsimile and U.S. mail. Hedstrom and Kotter were
again copied via email.
Before the closing, Kotter sent Geldes an email in the
afternoon on September 13. Hedstrom was not included
8 No. 12-1969
on the email. Kotter wrote, “Please have the deed [for
Unit 1518] made out to the Kotter Family Trust dated
Sept. 25th 1993.” This was not in accordance with the
modification letter Geldes sent on August 4; Kotter is
the sole trustee and sole settlor of the Kotter Family
Trust. Kotter also orally told Geldes that Hedstrom
would not be present at the closing for Unit 1518 and
that Geldes would need to draft a document giving
Kotter power of attorney (POA) and assigning
Hedstrom’s rights to Unit 1518 to the Kotter Family Trust.
The next morning, on September 14, Geldes replied to
Kotter’s September 13 email. She wrote, “I have a call
into the title company regarding the POA and the as-
signment from [Hedstrom] to the Kotter Family Trust.”
Geldes stated in her affidavit that she drafted a POA
in accordance with Kotter’s request. The POA provided
the following:
Such power shall include but is not limited to deliver-
ance of any money and negotiating any terms relative
to the purchase of said property, assigning said
property to the Kotter Family Trust dated September
25, 1993 and settlement statements, and giving and
granting unto Hope F. Geldes, said ATTORNEY, full
power and authority to do and perform all and every
act and thing whatsoever . . . . (emphasis in original).
Geldes stated that she called Hedstrom to confirm the
changes. Hedstrom did not answer the call, but Geldes
attests that she left him a voicemail. Hedstrom never
called Geldes back.
No. 12-1969 9
On the morning of September 18, Geldes sent an email
to both Hedstrom and Kotter. The email provided
as follows:
Don and Cherie, I have attached the power of attorney
for Don to sign and have a witness sign it and have
it signed by a notary. The original must be brought
to closing. The power of attorney assigns the rights
under the contract to the Kotter Family Trust. The
Kotter Family Trust will own the property not Don
and Cherie as joint tenants. If you have any ques-
tions, please call me. I have also faxed a copy of the
power of attorney to Don’s work.
Attached to the email was the POA Geldes prepared.
Hedstrom executed a POA before a witness and notary
republic that same day. He then faxed it back to Geldes.
The parties do not dispute that the signature on the
POA is Hedstrom’s. However, the POA executed substi-
tuted “Cherie Kotter” for where “Hope F. Geldes” had
previously been written.
The closing for Unit 1518 was held on September 18,
2006. Kotter and Geldes attended the closing; Hedstrom
did not. Unit 1518 was titled to the Kotter Family
Trust. The deed was properly recorded.
Kotter received a real estate brokerage commission
for the purchase of the two Units. She contends the com-
missions were used to buy furniture for and remodel
the Units.
On November 15, 2006, Hedstrom executed a final
will and living trust. These were prepared by a different
10 No. 12-1969
attorney. The will stated in part, “My condominium
located at Unit No. 4705, Lake Point Towers, 505 North
Lake Shore Drive, Chicago, Illinois 60611, shall be sold
by either my Personal Representative or the Trustee
under the Living Trust which I restated this date concur-
rently with the execution of this Will.” Language in
the trust closely-tracked the will: “My condominium
located at Unit No. 4705, Lake Point Towers, 505 North
Lake Shore Drive, Chicago, Illinois 60611 shall be sold
by my Trustee. The proceeds from the sale of my
Chicago condominium shall pass to the residue of the
trust estate in accordance with the next paragraph of
this Instrument.” Unit 1518 is not referred to in
Hedstrom’s will, living trust, or any other estate-
planning documents. No party asserts that the will or
living trust are invalid in any way.
Hedstrom died on January 20, 2007. His will and
living trust were followed; Ball and Witteried were ap-
pointed Administrators of Hedstrom’s estate on April 11,
2007. Title to Unit 4705 vested fully in Kotter pursuant
to the “right of survivorship” provision.2 Unit 1518 re-
mained titled to the Kotter Family Trust.
B. Procedural Posture
The Administrators discovered how the Units were
titled when Hedstrom’s will was probated. Believing
2
Kotter transferred title of Unit 4705 to Larry Peckler on
October 5, 2007.
No. 12-1969 11
that the Units were not titled in accordance with
Hedstrom’s wishes, the Administrators filed suit against
Kotter and Geldes on March 19, 2008. Count I is against
Kotter, alleging breach of fiduciary duty by a real
estate agent. The Administrators claim Kotter did not
represent the interests of Hedstrom above her own per-
sonal interests. Count II is against Geldes, alleging
legal malpractice; the Administrators claim that Geldes
did not adequately represent Hedstrom’s interests
during the purchasing of the Units and that she inap-
propriately represented two parties—Hedstrom and
Kotter—with competing interests.
The case proceeded to discovery before the magistrate
judge. The Administrators were required by January 30,
2009, to disclose the names of any experts regarding
the standard of care and duties owed to Hedstrom.
The Administrators did not name any expert by the
deadline.
On August 12, 2009, the magistrate judge issued an
order that barred the Administrators from presenting
any expert testimony on the relevant issues. This
included expert testimony encompassing Kotter’s posi-
tion as a real estate agent and Geldes’ position as a
real estate attorney. The district judge affirmed the magis-
trate judge’s order on November 12, 2009, foreclosing
the Administrators from presenting expert testimony.
See Ball v. Kotter, No. 08-cv-1613, 2009 U.S. Dist. LEXIS
106210 (N.D. Ill. Nov. 12, 2009). These decisions have
not been appealed.
On May 15, 2009, Geldes filed a motion for summary
judgment, contending that the Administrator’s failure
12 No. 12-1969
to present expert testimony entitled her to summary
judgment in her favor on the legal malpractice claim;
Kotter filed a similar motion on May 19. The Admin-
istrators filed cross-motions for summary judgment.
The district judge issued an order on October 18, 2010,
which encompassed many issues. See Ball v. Kotter, 746
F. Supp. 2d 940 (N.D. Ill. 2010). The first issue was the
application of the Illinois Dead Man’s Act. See 735 Ill.
Comp. Stat 5/8-201. The statute provides in relevant part:
In the trial of any action in which any party sues
or defends as the representative of a deceased person
or person under a legal disability, no adverse party
or person directly interested in the action shall be
allowed to testify on his or her own behalf to any
conversation with the deceased or person under
legal disability or to any event which took place in
the presence of the deceased or person under legal
disability . . . .
As the district court noted, “The purposes of the Act are
to protect decedents’ estates from fraudulent claims and
to equalize the position of the parties in regard to the
giving of testimony.” Gunn v. Sobucki, 837 N.E.2d 865,
869 (Ill. 2005). We need not provide an expansive discus-
sion of the Act, though we recognize that it is at play in
this case. See, e.g., Lovejoy Electronics, Inc. v. O’Berto, 873
F.2d 1001, 1005 (7th Cir. 1989). But nonetheless, the
district court determined that Kotter and Geldes were
prohibited from “introduc[ing] evidence of their con-
versations with Hedstrom or events at which Hedstrom
was present unless and until [the Administrators]
No. 12-1969 13
introduce[d] testimony concerning the same conversa-
tion or event.” Ball, 746 F. Supp. 2d at 948.
The district court proceeded to Geldes’ motion for
summary judgment. In granting summary judgment
in favor of Geldes, the court discussed the Administra-
tors’ claims against Geldes and determined that
expert testimony was needed to establish the appropriate
standard of care. The Administrators were prohibited
from offering such testimony, so the court entered judg-
ment in favor of Geldes. The court denied the Admin-
istrators’ cross-motion against Geldes.
The district court next addressed Kotter’s motion for
summary judgment. Kotter argued that the Administra-
tors’ inability to present expert testimony as to the stan-
dard of care was fatal to the count against her as well.
The court rejected this assertion because expert testi-
mony is not necessary to establish breach of a fidu-
ciary—“[B]ecause Kotter was Hedstrom’s fiduciary and
did benefit from the transactions, the law presumes that
she defrauded her principal. See, e.g., Kirkruff v. Wisegarver,
697 N.E.2d 406, 411 (Ill. App. Ct. 4th Dist. 1998).” Ball,
746 F. Supp. 2d at 955-56 (emphasis in original). The
district court then denied both cross-motions for
summary judgment regarding Kotter because there
were “unresolved factual disputes.”
Kotter and the Administrators filed cross-motions
for reconsideration of the district court’s October 18, 2010
order and renewed motions for summary judgment. The
basis for the motions was the court’s failure to address
how the granting of summary judgment in favor of
14 No. 12-1969
Geldes—and her removal from the case as an interested
party—affected the admissibility of her testimony under
the Act as it related to the claim against Kotter. Kotter
contended that Geldes could now testify regarding con-
versations she had with Hedstrom that were pre-
viously prohibited. Kotter also argued, first, that her
position did not affect how the Units were titled, so
she could not benefit from the deals by virtue of her
fiduciary status; and second, that the presumption of
donative intent cancelled out the presumption of fraud.
The district court granted Kotter’s motion for sum-
mary judgment on March 22, 2012. See Ball v. Kotter, No. 08-
cv-1613, 2012 U.S. Dist. LEXIS 38739 (N.D. Ill. Mar. 22,
2012). In doing so, the court ruled that, because Geldes
was no longer a party to the case, her testimony could
properly be admitted and used to defeat the Administra-
tors’ claim against Kotter. Accordingly, the court con-
sidered the following additional information in ruling
on the motions:3
• Geldes testified that at some point after she sent
to the seller’s attorney, Kotter, and Hedstrom the
modification letter that indicated that unit 4705
would be conveyed to Hedstrom and Kotter as
joint tenants with right of survivorship, Geldes had
a conversation with Hedstrom directly, in which
3
The parties do not take issue with the district court’s
rulings under the Illinois Dead Man’s Act, and we have,
therefore, limited our discussion of the facts to those not
prohibited by the Act.
No. 12-1969 15
she explained the possible title options for the
two units and the legal implications of each.
• According to Geldes, during this conversation,
Hedstrom told Geldes that he wanted both units
titled with Kotter and Hedstrom as joint
tenants, with a right of survivorship.
• Hedstrom told Geldes that he wanted the units
titled in this way because he wanted to take care
of Kotter and he wanted to ensure that the two
units would pass to Kotter upon his death as
he was leaving several other properties he
owned to his children.
• Geldes testified that at the closing for unit 4705,
she made the changes to the deed in front of Kotter
and Hedstrom, and that Hedstrom verbally as-
sented to the handwritten changes as they were
being made.
Id. at *26-27.
The district court moved to the merits and concluded
that the presumption of fraud applied because Kotter
“benefitted from the two transactions in which she
served as a fiduciary.” The court rejected Kotter’s con-
tention that the presumption of donative intent overrode
or cancelled out the presumption of fraud. Next, the
court ruled that Kotter needed to demonstrate by “clear
and convincing” evidence that she exercised good
faith and did not betray Hedstrom’s confidence. And
referencing Geldes’ testimony that was now admissible,
the court concluded that Kotter did in fact rebut the
16 No. 12-1969
presumption. Finally, the court concluded that, with
the presumption gone, the undisputed testimony
showed that the Units were titled in accordance with
Hedstrom’s wishes and that Hedstrom understood the
consequences of the titling of each Unit. The district
court, therefore, granted summary judgment in favor
of Kotter because no reasonable juror could find in favor
of the Administrators on their breach of fiduciary
count. The Administrators’ motion for reconsideration
and renewed cross-motion for summary judgment
were denied.
II. DISCUSSION
The Administrators contend the district court im-
properly granted summary judgment in favor of Geldes
on their legal malpractice claim and in favor of Kotter
on their breach of fiduciary claim. We review the district
court’s grant of summary judgment de novo. Fail-Safe,
LLC v. A.O. Smith Corp., 674 F.3d 889, 892 (7th Cir. 2012).
In doing so, we view all facts and draw all inferences in
the light most favorable to the non-moving party. Shaffer
v. Am. Med. Assoc., 662 F.3d 439, 442 (7th Cir. 2011). Sum-
mary judgment is appropriate here if, on the evidence
provided, no reasonable juror could return a verdict
in favor of the Administrators. See Carlisle v. Deere & Co.,
576 F.3d 649, 653 (7th Cir. 2009). Additionally, like the
district court, we will apply Illinois law to the substantive
issues. See Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d
834, 838 (7th Cir. 2010) (explaining that state law applies
to substantive issues when federal court jurisdiction is
No. 12-1969 17
premised on diversity and that the court applies the law
of the state in which it sits when neither party raises
a conflict of law issue). We address each of the Admin-
istrators’ arguments in turn.
A. Legal Malpractice Claim Against Geldes
We begin with the district court’s grant of sum-
mary judgment in favor of Geldes on the Administra-
tors’ legal malpractice claim. A plaintiff must prove
five elements in an action for legal malpractice in
Illinois: “(1) an attorney-client relationship; (2) a duty
arising out of that relationship; (3) a breach of that duty;
(4) causation; and (5) actual damages.” Wash. Group
Int’l, Inc. v. Bell, Boyd & Lloyd, LLC, 383 F.3d 633, 636 (7th
Cir. 2004) (quoting Griffin v. Goldenhersh, 752 N.E.2d
1232, 1238 (Ill. App. Ct. 5th Dist. 2001)). Plaintiffs are
generally required to present expert testimony to
prove their claim, and a failure to do so may prove
fatal. Barth v. Reagan, 564 N.E.2d 1196, 1200 (Ill. 1990).
Illinois courts, however, have carved out a niche from
this general requirement, known as the “common knowl-
edge rule.” See, e.g., House v. Maddux, 360 N.E.2d 580,
584 (Ill. App. Ct. 1st Dist. 1977). Under the common
knowledge rule, expert testimony is not required “[w]here
no issue is raised as to defendant’s responsibility for
allowing the statute of limitations to run, where the
negligence of defendant is apparent and undisputed, and
where the record discloses obvious and explicit careless-
ness in defendant’s failure to meet the duty of care owed
by him to plaintiff[.]” Brainerd v. Kates, 386 N.E.2d 586,
18 No. 12-1969
589 (Ill. App. Ct. 1st Dist. 1979) (quoting House, 360 N.E.2d
at 584). In other words, no expert testimony is needed
“where the professional’s conduct is so grossly
negligent . . . that a layperson could readily appraise it[.]”
Advincula v. United Blood Servs., 678 N.E.2d 1009, 1021
(Ill. 1996).
The magistrate judge barred the Administrators
from offering expert testimony on the standard of care
owed by Geldes to Hedstrom, and the district judge
concluded that decision was neither clearly erroneous
nor contrary to law. Because those determinations were
not appealed to us, the main issue here is whether the
information presented and the allegations against
Geldes show “such obvious and explicit carelessness”
by Geldes as to repudiate the requirement that the Ad-
ministrators present expert testimony. In short, if the
common knowledge rule does not apply, the Administra-
tors lose.
Looking to the allegations against Geldes, the Adminis-
trators contend Geldes should have recognized the
conflict of interest between Hedstrom, the principal, and
Kotter, who was acting as an agent for Hedstrom
but also benefitting from the transaction. In the Admin-
istrators’ eyes, “when a real estate attorney is con-
fronted with a transaction that is presumptively
fraudulent as [a] matter of law,” the duty of care
required by an attorney is obvious. The Administrators
also vaguely reference two additional contentions made
in the district court regarding Geldes’ alleged mal-
practice: (1) Geldes represented Hedstrom and Kotter
No. 12-1969 19
in the purchase of the Units, and she failed to disclose
or resolve the conflict; and (2) Geldes failed to disclose
and explain to Hedstrom the legal effect of Kotter’s
direction regarding how title to the Units would be
held. But because these allegations also relate to Geldes’
duty of care and obligation to properly communicate
with Hedstrom, regardless of how they are phrased,
we address them collectively.
Our task is to determine whether the standard of care
underlying the allegations in this case is obvious or
apparent. No argument has been put forth that an
attorney-client relationship did not exist between
Hedstrom and Geldes, so the Illinois Rules of
Professional Conduct and the affirmative obligations
required under them and Illinois case law are relevant to
the standard of care. See Owens v. McDermott, 736 N.E.2d
145, 157 (Ill. App. Ct. 1st Dist. 2000) (explaining that
the rules of professional conduct and the rules of legal
ethics are relevant to the standard of care in a legal mal-
practice suit (citing Nagy v. Beckley, 578 N.E.2d 1134, 1136-
37 (Ill. App. Ct. 1st Dist. 1991))). The Rules, however, “do
not establish a separate duty or cause of action,” and
they are “not an independent font of liability.” Id. We
agree that the Rules provide that a “lawyer has [an]
affirmative duty to take necessary steps to keep [a]
client informed about his case so [the] client can make
intelligent choices as to [the] direction of litigation, as
well as to respond to client questions and demands for
information promptly,” as the Administrators explain,
citing In re Smith, 659 N.E.2d 896, 902 (Ill. 1995). See
Rogers v. Robson, Masters, Ryan, Brumund & Belom,
20 No. 12-1969
407 N.E.2d 47, 48-49 (Ill. 1980). But a violation of the
Rules in and of itself does not establish liability in a
legal malpractice case, and there is a difference
between having a “duty” to do something under the
Rules and determining just what that “something”—i.e.,
the standard of care—encompasses. Compare Duty,
B LACK’S L AW D ICTIONARY 543 (8th ed. 2004) (“A legal
obligation that is owed or due to another that needs to
be satisfied; an obligation for which somebody else has a
corresponding right.”), with Jones v. Chi. HMO Ltd. of Ill.,
730 N.E.2d 1119, 1129-30 (Ill. 2000) (“What the defendant
must do, or must not do, is a question of the standard
of conduct required to satisfy the duty.” (quoting
W. Prosser, Torts, at 324 (4th ed. 1971) (emphasis omit-
ted))).
Barth v. Reagan is instructive here. The plaintiff in
Barth argued that “the basic duty of an attorney to com-
municate with a client” should fall within the common
knowledge rule because a lay person would understand
an attorney’s “total lack of communication” with a
client. Barth, 564 N.E.2d at 1200. The Illinois Supreme
Court held otherwise, concluding that the attorney’s
duty to communicate naturally depended on the par-
ties’ relationship and the particular facts of the case, which
involved “intricacies” that were beyond the purview of
lay persons. Id. at 1200-01 (“ ‘Conflicting interest’ is the
simultaneous adverse representation of multiple clients.
We view the concerns an attorney has regarding his or
her professional responsibilities in this area as being
complex, and we do not find the intricacies of this type
No. 12-1969 21
of representation to be within the common knowledge
of lay persons.” (internal citations omitted)).
Accordingly, what is required to satisfy a more
complex “duty”—one based on a professional’s skill—is
different than when an attorney misses a deadline, fails
to comply with a statute of limitations, or completely
neglects to take any action regarding a case. See id. at 1201
(citing Gray v. Hallett, 525 N.E.2d 89, 91-92 (Ill. App. Ct.
5th Dist. 1998); Sorenson v. Fio Rito, 413 N.E.2d 47, 49-50, 53
(Ill. App. Ct. 1st Dist. 1980); House, 360 N.E.2d at 584). A
lay juror need not be “skilled in the profession” to under-
stand when an attorney has made one of the aforemen-
tioned obvious blunders; thus, expert testimony on
the standard of care is unnecessary in those types of
cases. See id. The same goes for a medical malpractice
case, for example, when a surgical instrument is left in
a patient’s body, Walker v. Rumer, 381 N.E.2d 689, 691
(Ill. 1978), or when a plaintiff alleged that he was “re-
strained on a bed and left alone in a hospital emergency
room to be exposed to an ignition source that set[] him
on fire[.]” Heastie v. Roberts, 877 N.E.2d 1064, 1076-77
(Ill. 2007). Some negligence is obvious; other types are
not. Communicating with clients and recognizing
conflicts of interest in a legal transaction do not fit
within these “obvious” examples or the purview of a
lay juror.
The Administrators maintain that the duty Geldes
owed to Hedstrom is “clearly delineated,” but they fail to
explicitly opine on what was required to satisfy Geldes’
duty, aside from “recognize the conflict of interest.” If the
22 No. 12-1969
Administrators are unable to provide us with the scope
of Geldes’ duty, then the standard of care required
surely cannot be within the common knowledge of a
lay juror. For example, again comparing this case to a
medical malpractice action, a plaintiff can allege that a
doctor has a duty to not “exceed a plaintiff’s scope of
consent,” but an expert is required to opine as to the
extent of consent given. See Holzrichter v. Yorath, 987 N.E.2d
1, 2013 IL App. (1st) 110287, ¶88 (Ill. App. Ct. 1st Dist.
Mar. 4, 2013) (“[W]hether [the defendant-doctor]
exceeded the parameters of the surgery to which the
plaintiff consented is beyond the ken of a layperson, and
it requires a medical expert to opine on whether
cutting tendons is part and parcel of the Z scarf
osteotomy procedure.”).
Here, looking to the “duty of care,” it would not be
readily apparent to a lay juror as to (1) whom Geldes
was required to communicate with; (2) the type of commu-
nication required (e.g., letter, email, phone, in-person);
(3) how often Geldes was required to communicate;
(4) what specific information Geldes was required to
communicate; (5) and what steps Geldes was required
to take in response to the information and issues
presented in this particular situation. Expert testimony
was needed to establish the answers to questions like
these, which would in turn form the basis of the
applicable standard of care. Only then could the Ad-
ministrators attempt to prove the other elements
required in a legal malpractice case: breach, causation,
and damages. See Jones, 730 N.E.2d at 1130 (“Expert
testimony is necessary to establish both (1) the standard
No. 12-1969 23
of care expected of the professional[,] and (2) the profes-
sional’s deviation from the standard.”). In light of these
questions, we do not see how Geldes’ alleged conduct
could be considered “so grossly negligent that a lay-
person could readily appraise.” See Advincula, 678 N.E.2d
at 1021.
The Administrators direct us to Lincoln Cardinal
Partners v. Barrick, 578 N.E.2d 316 (Ill. App. Ct. 4th Dist.
1991) in support of their argument that the common
knowledge rule should be applied. This reliance is mis-
placed. The issue in Lincoln Cardinal Partners was
whether the participant, third party in the transaction
should have recognized that the principal’s agent was
acting improperly or in conflict with the interests of his
principal. See id. at 316-20 (“We hold here that a
purported agent’s otherwise apparent authority to con-
tractually bind a principal to a third party is destroyed
when a showing is made requiring the third party
to recognize that a conflict of interest exists between
the purported agent and the principal.”). If so, then
the participant could not indulge himself in the transac-
tion’s benefits.
As applied to this case, Lincoln Cardinal Partners
could only be helpful if, say, Kotter filed suit against
the Administrators and argued she was still entitled to
her interest in the properties despite Geldes doing
a substandard job in effecting the transactions. The Ad-
ministrators (the principal) could rely on the case to
argue that Kotter (the participant) cannot benefit from
the transaction, like the participant, third party in
24 No. 12-1969
Lincoln Cardinal Partners, because Kotter should have
recognized Geldes’ (the agent’s) shortcomings—e.g.,
her failure to (1) properly document the transactions, or
(2) recognize the conflict of interest between Kotter
and Hedstrom (as an agent benefitting from a trans-
action with her principal) or Geldes, Kotter, and
Hedstrom (as an agent-attorney representing two
distinct parties with competing interests).4 This does
not help the Administrators; the Administrators were
not harmed by Kotter’s failure to recognize some
alleged form of malpractice. And as relevant here,
Lincoln Cardinal Partners had nothing to do with the tort
of legal malpractice, the use of expert testimony, or the
standard of care required of an attorney. Barth sets
forth the applicable guidance. That is what we follow.
Alternatively, the Administrators make a bald asser-
tion that expert testimony would be improper, as well as
unnecessary, because the Illinois Rules of Professional
Conduct and the published case law “clearly state the
legal standards controlling this case.” But we agree with
the district court that this argument is without merit.
The Administrators rely on Sohaey v. Van Cura, 607
4
The parties hotly contest whether Geldes was also repre-
senting Kotter in the transactions. The district court discussed
the information that “suggest[ed] Geldes represented Kotter
as well as Hedstrom in the two condominium purchases.”
See Ball, 746 F. Supp. 2d at 946-47. But our decision does not
require a determination as to this issue, so we express no
opinion as to whether a fiduciary relationship actually
existed between Geldes and Kotter.
No. 12-1969 25
N.E.2d 253 (Ill. App. Ct. 2d Dist. 1992), and LID Associates
v. Dolan, 756 N.E.2d 866 (Ill. App. Ct. 1st Dist. 2001)
to bolster their contention; however, the cases only
explain when expert testimony is prohibited, not when it
is required. The court in Sohaey said experts cannot
give testimony that “amounts to statutory interpreta-
tion,” offer “legal conclusions” that a jury could make
on its own, or “testify regarding what legal research
shows with respect to a key legal term” that should
be defined by the court. Sohaey, 607 N.E.2d at 283
(citations omitted). The court in LID Associates similarly
noted that an expert witness cannot give testimony
“amounting to statutory interpretation” or regarding
“legal conclusions” and opinions based on the “interpreta-
tion of case law.” LID Assocs., 756 N.E.2d at 876-77 (cita-
tions omitted). Without rehashing our prior discussion
of why expert testimony was required here, we do not
believe expert testimony in this case would amount to
any of the prohibited forms of testimony.
The allegations and information in this case required
Ball to present expert testimony as to the standard of
care required of Geldes. Accordingly, the Administrators’
inability to present the required expert testimony in
this case is fatal to their legal malpractice claim. The
district court properly granted summary judgment in
favor of Geldes.
B. Breach of Fiduciary Duty Claim Against Kotter
We next address the district court’s grant of summary
judgment in favor of Kotter. In doing so, we again note
26 No. 12-1969
that we are not prohibited under the Illinois Dead Man’s
Act from considering Geldes’ testimony and, like the
district court, will consider it when necessary.
The Administrators contend Kotter breached the fidu-
ciary duty she owed Hedstrom as his real estate agent.
This is simpler than a negligence claim in that “the
relevant standard of care in a negligence claim encom-
passes a broader range of conduct than is covered by
a fiduciary duty and that a negligence claim for legal
malpractice is based in tort, while a claim for breach
of fiduciary duty is founded on principles of agency,
contract, and equity.” Pippen v. Pederson & Houpt, 986
N.E.2d 697, 2013 IL App. (1st) 111371, at ¶28 (Ill. App. Ct.
1st Dist. Feb. 26, 2013). To succeed in a claim for breach
of fiduciary duty, a plaintiff must prove the following
elements: (1) a fiduciary duty exists; (2) the fiduciary
duty was breached; and (3) the breach proximately
caused the injury of which the plaintiff complains. Neade
v. Portes, 739 N.E.2d 496, 502 (Ill. 2000).
As to the first element, it is widely understood that a
fiduciary relationship “may arise as a matter of law, such
as between an agent and principal, or it may be moral,
social, domestic, or personal.” Kurtz v. Solomon, 656
N.E.2d 184, 190 (Ill. App. Ct. 1st Dist. 1995). The parties do
not dispute on appeal that Kotter was Hedstrom’s agent,
as a matter of law or as a matter of fact. 5 Therefore, as it
5
The district court concluded that the undisputed facts and
circumstances in this case demonstrated that Kotter owed a
(continued...)
No. 12-1969 27
relates to elements two and three, Kotter had a duty to
treat Hedstrom with “the utmost candor, rectitude, care,
loyalty, and good faith.” See Benson v. Stafford, 941 N.E.2d
386, 397 (Ill. App. Ct. 1st Dist. 2010). The overall question
presented in this appeal is whether a reasonable juror
could conclude that Kotter breached her fiduciary duty
and that the breach proximately caused harm to
Hedstrom’s estate.
1. Presumption Background
The parties agree that the outcome of this case hinges
on the interpretation and interplay of two “strong” pre-
sumptions arising in agency law that directly relate to
the Administrators’ breach of fiduciary claim against
Kotter: the presumption of undue influence and the
presumption of fraud.
The presumption of undue influence has been defined
as “any improper . . . urgency of persuasion whereby
the will of a person is overpowered and he is induced to
5
(...continued)
fiduciary duty to Hedstrom because of her position as his real
estate agent, as well as because of the agency relationship
between Kotter and Hedstrom that “went beyond a typical
real estate broker-client relationship.” See Ball, 2012 U.S. Dist.
LEXIS 38739, at *32-33 (citing Ioerger v. Halverson Constr. Co., 902
N.E.2d 645, 648 (Ill. 2008)). Our analysis does not require us
to resolve the question as to what relationship between the
parties or underlying fact establishes the fiduciary duty as
a matter of law.
28 No. 12-1969
do or forbear an act which he would not do or would do
if left to act freely.” Franciscan Sisters Health Care Corp. v.
Dean, 448 N.E.2d 872, 875 (Ill. 1983) (hereinafter
Franciscan Sisters). Similarly, the presumption of fraud is
generally understood to mean as follows: “[w]here the
existence of a fiduciary relationship has been established,
the law presumes that any transactions between the
parties, by which the dominant party has profited, are
fraudulent.” Jones v. Washington, 107 N.E.2d 672, 674
(Ill. 1952). Under Illinois law, the names of each presump-
tion are used almost interchangeably, see Hofert v. Latorri,
174 N.E.2d 866, 869 (Ill. 1961) (“The defendants made
no effort to rebut the presumption of fraud and undue
influence that arose from the proof that a confidential
relationship existed and that the dominant party had
gained from the transaction.”) (emphasis added), and
the principles underlying each overlap. Compare Long v.
Lyon, 726 N.E.2d 187, 193 (Ill. App. Ct. 4th Dist. 2000)
(explaining that the defendant “did not meet his burden
of showing that he exercised good faith and did not
betray the confidence reposed in him” during the transac-
tion), with Franciscan Sisters, 448 N.E.2d at 877 (stating
that attorneys who stand to gain from wills they
prepared for their clients must demonstrate “they are not
defrauding or unduly influencing their clients”). To the
extent the Administrators contend there are two com-
pletely separate lines of authority—one for will contests
and one for transactions—we disagree. Both presumptions
arise from a fiduciary’s general duty to “refrain from
seeking a selfish benefit during the relationship,” see
Neade, 739 N.E.2d at 500 (internal quotation marks omit-
No. 12-1969 29
ted), be it in a transaction, the drafting of a will, or the
preparation of a trust.
When applicable, these presumptions create a prima
facie case as to the disputed issue; they do not shift the
burden of proof in the case. Franciscan Sisters, 448 N.E.2d
at 876. Rather, “the presence of a presumption in a case
only has the effect of shifting to the party against whom
it operates the burden of going forward and introducing
evidence to meet the presumption.” Diederich v. Walters,
357 N.E.2d 1128, 1131 (Ill. 1976). But once the party on
the adverse side of the presumption introduces
sufficient evidence to rebut the presumption, the “bubble
bursts” and the presumption vanishes. Dep’t of Cent.
Mgmt. Servs. v. Ill. Labor Relations Bd., 902 N.E.2d 1122,
1134 (Ill. App. Ct. 4th Dist. 2009). The issue is then
decided as if no presumption ever existed. Lipscomb v.
Sisters of St. Francis Health Servs., Inc., 799 N.E.2d 293, 298
(Ill. App. Ct. 1st Dist. 2003). Illinois courts have
required “clear and convincing” evidence to overcome
the presumptions of fraud and undue influence.
Franciscan Sisters, 448 N.E.2d at 878; see R.J. Mgmt. Co. v.
SRLB Dev. Corp., 806 N.E.2d 1074, 1081 (Ill. App. Ct. 2d
Dist. 2004) (explaining that the “clear and convincing”
standard applies to “strong” presumptions that typically
arise “where the party challenging the presumption
was a fiduciary of the party receiving the favor of the
presumption”). Conversely, if the party is unable to
offer “clear and convincing” evidence to the contrary of
the presumption, the prima facie case will support a
finding as to the issues involved. See Franciscan Sisters, 448
N.E.2d at 876 (citations omitted); Diedrich, 357 N.E.2d
at 1132.
30 No. 12-1969
2. Rebutting the Presumption
The district court correctly concluded that the presump-
tion of fraud applies here. (We refer to the applicable
presumption as one of fraud for convenience and in ac-
cordance with the parties’ briefing.) Neither party
disputes that on appeal.6 It follows that, in order to over-
come the presumption, Kotter must demonstrate by
clear and convincing evidence that the transactions in-
volving the Units were fair and did not result from
any undue influence. See In re Estate of Pawlinski, 942
N.E.2d 728, 736-37 (Ill. App. Ct. 1st Dist. 2011); Miller,
778 N.E.2d at 267. This is a determination the court can
make as a matter of law, that is, whether the “bubble
has burst” and whether the case should then be decided
on factual matters. Compare Franciscan Sisters, 448 N.E.2d
at 878 (“Our decision here affirms the appellate court,
which held that after the presumption is rebutted as a
matter of law ‘[w]hat remains is a factual question, and
we remand the cause to the trial judge as trier of fact
to assess the strength of the evidence.” (quoting 429
N.E.2d 914, 921 (Ill. App. Ct. 4th Dist. 1981)) (emphasis
added), with Spring Valley Nursing Ctr., L.P. v. Allen, 977
6
Kotter argued in the district court that the presumption
of donative intent, which arises with the creation of a joint
tenancy, cancelled out the presumption of fraud as to
Unit 4705. See Murgic v. Granite City Trust & Savings Bank, 202
N.E.2d 470, 472 (Ill. 1964); Miller v. Ford, 778 N.E.2d 262, 269
(Ill. App. Ct. 5th Dist. 2002). The district court properly
rejected that contention, quoting In re Estate of DeJarnette, 677
N.E.2d 1024, 1029 (Ill. App. Ct. 4th Dist. 1997).
No. 12-1969 31
N.E.2d 1230, 1234 (Ill. App. Ct. 3d Dist. 2012) (“A trial
court’s determination as to whether a presumption of
fraud has been overcome, made after an evidentiary
hearing, is entitled to deference and will not be reversed
on appeal unless it is against the manifest weight of
the evidence.”) (emphasis added). And in making this
determination, Illinois courts consider three “significant”
factors, also known as the McFail factors: whether (1) the
fiduciary made a full and frank disclosure of all
relevant information that he had; (2) the fiduciary paid
adequate consideration; and (3) the principal had compe-
tent and independent advice. E.g., McFail v. Braden, 166
N.E.2d 46, 52 (Ill. 1960); Miller, 778 N.E.2d at 267.
Kotter claims that Hedstrom intended for the Units to
be “gifts”; Kotter must therefore provide clear and con-
vincing evidence supporting that intention. Simply put,
she must show that the transfer of title to Kotter, as a
result of the joint tenancy or through the Kotter Family
Trust, “was the result of full and free deliberation on
the part of [Hedstrom].” See Lemp v. Hauptmann, 525
N.E.2d 203, 206 (Ill. App. Ct. 5th Dist. 1998). If Kotter is
unable to do that, she automatically loses. We thus turn
our focus to whether Kotter provided sufficient
evidence to rebut the presumption.
i. Lack of Consideration
Central to our inquiry here is Kotter’s admission that she
did not provide any “consideration” regarding the titling
of either Unit. This includes “natural love and affection,”
which courts often evaluate in the context of a deed to the
32 No. 12-1969
relatives of a grantor—though we take no position regard-
ing the particular relationship between Kotter and
Hedstrom here. Cf. Boryca v. Parry, 181 N.E.2d 124, 129
(Ill. 1962). The Administrators have steadfastly relied
on Kotter’s admission because they believe the presump-
tion of fraud arising from a transaction can never be
overcome without providing adequate consideration.
Conversely, Kotter claims that the consideration factor is
irrelevant in this case because the Units were gifts, and it
necessarily follows that a gift would not be accompanied
by consideration. See Provena Covenant Med. Ctr. v. Dep’t
of Revenue, 925 N.E.2d 1131, 1151 (Ill. 2010) (“It is a funda-
mental principle of law . . . that a gift is a voluntary,
gratuitous transfer of property by one to another, and
that [i]t is essential to a gift that it should be without
consideration.”) (internal quotation marks and cita-
tion omitted).
The Administrator’s contention has more than a
scintilla of support; some cases involving the presump-
tion of fraud have essentially been decided on the issue
of consideration alone. See, e.g., Falcon v. Thomas, 629
N.E.2d 789, 794-96 (Ill. App. Ct. 4th Dist. 1994). But the
Administrators have not directed us to, and we are
unable to find, a single case in Illinois holding that the
presumption of fraud cannot be rebutted unless
adequate consideration is provided. Rather, Illinois case
law evinces an intent to treat the McFail factors as just
that, factors, as opposed to mandatory elements that
must be satisfied. See Klaskin v. Klepak, 534 N.E.2d 971, 975
(Ill. 1989) (explaining that the McFail factors are “[s]ome
of the factors which this court deems persuasive”) (empha-
No. 12-1969 33
sis added). Courts would not regularly look to all
the factors if a lack of consideration was always deter-
minative of the issue. See, e.g., Hofert, 174 N.E.2d at 869(concluding that the presumption of fraud and undue
influence was not rebutted because the defendants did
not show that adequate consideration was paid or that
the grantor received any independence advice re-
garding the constructive trust); Long, 726 N.E.2d at 191-93(concluding that the presumption of undue influence
was not overcome because there was no evidence that
(1) the defendant made a full and frank disclosure of the
relevant information; (2) the defendant paid adequate
consideration; or (3) the decedent had competent and
independent advice.
As explained in a more-recent Illinois appellate court
decision,
[The Illinois] supreme court has looked to several
factors in determining whether the presumption of
undue influence has been overcome, including
whether (1) the attorney made a full and frank disclo-
sure of all relevant information; (2) the client’s agree-
ment was based on adequate consideration; and
(3) the client had independent advice before com-
pleting the transaction. In re Marriage of Pagano, 607
N.E.2d 1242, 1247 (Ill. 1992). Other Illinois decisions
have considered slightly different factors, including
whether (1) the agreement was offered by the lawyer
with unquestionable good faith and with complete
disclosure, (2) the client entered into the agreement
with a full understanding of all facts and their legal
34 No. 12-1969
importance; and (3) the client’s decision was free
from undue influence and was fair. Id. at 1248.
Bruzas v. Richardson, 945 N.E.2d 1208, 1215 (Ill. App. Ct.
1st Dist. 2011).
This explanation makes sense given that the presump-
tion of fraud can arise in many different situations and
contexts, including when a grantor gives a gift to a fidu-
ciary. If consideration was always required to rebut the
presumption of fraud, a gift—“a voluntary, gratuitous
transfer of property by one to another,” Provena Covenant
Med. Ctr., 925 N.E.2d at 1151—could never be made to
a fiduciary. We decline to interpret Illinois law in that
fashion.7
In short, Kotter faces an uphill battle in trying to rebut
the presumption of fraud because adequate considera-
7
We are cognizant of the cases involving the presumption
of fraud that arise from a debtor’s conveyance of property that
is allegedly made to avoid paying a valid creditor. In those
cases, the party can only rebut the presumption of fraud by
demonstrating adequate consideration was paid or the party
retained sufficient assets to pay the creditor. See, e.g., Falcon,
629 N.E.2d at 794-97; Regan v. Ivanelli, 617 N.E.2d 808, 814-15
(Ill. App. Ct. 2d Dist. 1993). Those cases are easily distinguished,
however, because the presumption in those cases is based in
statutory law, not Illinois common law. Cf. Tower Investors,
LLC v. 111 E. Chestnut Consultants, Inc., 864 N.E.2d 927, 943 (Ill.
App. Ct. 1st Dist. 2007) (“This presumption [of fraud] stems
for a public policy against [fiduciaries] using their position
of trust and power to take unfair advantage of clients in trans-
actions.”).
No. 12-1969 35
tion was not paid. But contrary to the crux of the Ad-
ministrators’ appeal, it is not “impossible.” Kotter must
simply do it by providing evidence that satisfies
the other relevant factors. See, e.g., Klaskin, 534 N.E.2d
at 975-979.
ii. Other Relevant Factors
Having rejected the Administrators’ contention that
adequate consideration was necessary to rebut the pre-
sumption of fraud here, we look to the other relevant
factors: whether (1) the titling of the Units was made
with unquestionable good faith and with complete dis-
closure, and (2) Hedstrom assented to the titling of the
Units with a full understanding of all facts and their
legal importance. See Bruzas, 945 N.E.2d at 1215. Kotter
has satisfied those factors.
The evidence establishes, first, that Hedstrom
received complete and adequate disclosure of the
relevant facts regarding the titling of the Units. Geldes
contends that she explained to Hedstrom the legal con-
sequences of titling the Units in the different ways.
Cf. Miller, 778 N.E.2d at 267 (stating that “the lack of
having a disinterested attorney question the decedent
regarding his understanding of a transaction meant that
the presumption was not overcome” (citing Klaskin, 534
N.E.2d at 976)). Geldes explicitly stated in her affidavit,
“After listening to his options, Mr. Hedstrom told me that
he wanted to take the Properties jointly with rights of
survivorship because he wanted to take care of Cherie
Kotter and ensure that the Properties would pass to
36 No. 12-1969
Kotter upon his death as he was leaving several other
properties he owned to his children.” There is no
evidence to contradict this assertion regarding Unit 4705.
Regarding Unit 1518, Geldes’ email to Hedstrom on
September 18 specifically stated, “The power of attorney
assigns the rights under the contract to the Kotter
Family Trust. The Kotter Family Trust will own the
property not Don and Cherie as joint tenants.” This email,
coupled with Geldes’ calls to Hedstrom, constitutes
complete disclosure as to Unit 1518. And in any event,
even if Unit 1518 had been titled to Kotter and Hedstrom
as “joint tenants with rights of survivorship” as orig-
inally discussed, complete title to the Unit would have
passed to Kotter upon Hedstrom’s death. The fact
that Hedstrom changed his mind and allowed Kotter
to take complete title to Unit 1518 at an earlier point
in time is not inconsistent with the series of events and
the information in the record. Nor does it destroy
Geldes’ competent, independent legal advice.
The Administrators contend this factor falls in their
favor because of Kotter’s admission that she did not
provide any “competent and independent advice” to
Hedstrom regarding the titling of either Unit. This is a
red herring. As Kotter astutely points out, real estate
agents are prohibited from offering such advice because
it is within the purview of “the practice of law,” which
she is not licensed to do. See Chi. Bar Assoc. v. Quinlan
& Tyson, Inc., 214 N.E.2d 771, 772-75 (Ill. 1966). We
reject this argument without further discussion.
The evidence also establishes that Hedstrom had a full
understanding of all relevant facts. The parties all
No. 12-1969 37
agree that Hedstrom was a sophisticated business man
who owned numerous other properties. In addition
to Geldes’ testimony that she spoke to Hedstrom about
the Units, each of the letters and emails explicitly states
how the properties were to be titled. A presumption
exists that they were all properly sent, received, and
read. See Kennell v. Gates, 215 F.3d 825, 829 (8th Cir. 2000).
And there is no evidence that Hedstrom did not read
the emails or comprehend their contents. This presump-
tion is further bolstered by Hedstrom’s strongly-worded
email to Geldes on July 31 in which he said that he
would get a new attorney if Geldes did not comply
with his demands. If Hedstrom was displeased with
something, he made those concerns known. Further-
more, Hedstrom attended the closing for Unit 4705 and,
according to Geldes, was fully aware of how the deed
was being prepared. Including the deed, no fewer than
four documents regarding Unit 4705 referred to the Unit
as being titled to Hedstrom and Kotter as joint tenants
with rights of survivorship.
With respect to Unit 1518, the most convincing evidence
in favor of Kotter’s position is the POA that Hedstrom
signed and had notarized. The POA specifically stated,
“The Kotter Family Trust will own the property not
Don and Cherie as joint tenants.” That language is
neither complex nor ambiguous. Again, Hedstrom
owned numerous properties, and there is no evidence
that Hedstrom did not understand the language in
the POA. Instead, the evidence indicates that
Hedstrom assented to the titling of Unit 1518 with a full
understanding of the facts and their legal consequences.
38 No. 12-1969
We think the evidence Kotter provided is “clear and
convincing” despite the Administrators’ attempt to
direct us to a number of hypothetical, speculative “is-
sues.” See Cloe v. City of Indianapolis, 712 F.3d 1171, 1176
(7th Cir. 2013) (“[O]ur favor toward the nonmoving
party does not extend to drawing inferences that are
supported by only speculation or conjecture.”). These
include the Administrators’ assertions that: (1) Hedstrom
receiving and responding to emails “in the past” cannot
be used to satisfy the “clear and convincing” standard
of “receipt and understanding”; (2) Unit 4705 was men-
tioned in Hedstrom’s will and living trust; (3) there is
no evidence as to Hedstrom’s mindset in transferring
the title of Unit 1518 to the Kotter Family Trust; (4) the
POA used at the closing for Unit 1518 was not the POA
that Geldes prepared and sent to Hedstrom; and (5) there
is no evidence that Hedstrom “actually received, read
or understood” the POA or its effect on his estate.
Regarding the first assertion, this conclusory state-
ment lacks any support. As we stated above, a presump-
tion exists that the emails were received and read, and
Hedstrom’s letters and conduct indicate that he
received and read them. When Hedstrom disagreed with
what Geldes said in an email, he told Geldes without
reservation. When the email directed Hedstrom to sign
the POA and have it notarized, he did that and sent
the POA back to Geldes. This is enough. The Administra-
tors have not put forth any evidence to the contrary of
the presumption, so despite the Administrators’ conten-
tion that the presumption of receipt is not “evidence,”
the presumption of receipt is binding and can be used
No. 12-1969 39
to defeat the presumption of fraud. See Evidence, B LACK’S
L AW D ICTIONARY 595 (8th ed. 2004) (“Something (in-
cluding testimony, documents, and tangible objects)
that tends to prove or disprove the existence of an
alleged fact.”).
Looking to the second assertion, the information in-
cluded in Hedstrom’s will and living trust is entirely
consistent with the titling of the Units. First, neither
the will nor the living trust mentions Unit 1518. That
makes sense because Hedstrom had no interest in the
property; it was titled to the Kotter Family Trust.
There was no reason to include a property in
Hedstrom’s estate-planning documents if he did not
have a present or future interest in it. Next, Hedstrom
did have an interest in Unit 4705. His will and living
trust were in preparation for the possible situation
where Kotter predeceased him. If Kotter had predeceased
Hedstrom, Hedstrom would have taken full title to the
property. Hedstrom, who the parties agree was in
control of his financial affairs, was planning for all
possible situations. That is presumably why Unit 4705
was included in the will and living trust while Unit 1518
was not. This does not contradict the titling of the Units
or dictate a different conclusion regarding Hedstrom’s
overall intent.
The third assertion, that we do not know Hedstrom’s
particular mindset in titling Unit 1518 to the Kotter
Family Trust, is somewhat true, but it is inconsequential
to our conclusion. All of the evidence establishes that
Hedstrom wanted Unit 1518 to be titled to the Kotter
40 No. 12-1969
Family Trust. The specific reason he made this choice,
be it for tax purposes or his desire to provide for Kotter
after he died, does not matter. All that matters is
Hedstrom understood the legal consequences of his
decision; the uncontroverted evidence indicates he did.
The Administrators’ fourth argument, that we do not
know who changed the provisions in the POA Geldes
sent on September 18, which listed Geldes, and the one
presented at the closing, which listed Kotter, is much
ado about nothing. The record demonstrates that the
parties were initially unsure as to whether Kotter
would be able to attend the closing for Unit 1518. That
is why more than one POA was prepared. Once it was
certain that Kotter could attend the closing, however, it
made sense that Hedstrom would use the POA that
listed Kotter because Kotter was the person essentially
receiving title to Unit 1518. And we repeat, no party
contends that the POA used at the September 18
closing was not validly executed or did not include
Hedstrom’s signature. The Administrators’ claim that the
POA could have been altered or doctored in some
fashion is pure speculation and conjecture. In light of
this, we reject the Administrators’ contention that the
POA was “invalid under the controlling law and cannot
be used to establish Mr. Hedstrom’s knowledge, under-
standing or intent[.]”
The Administrator’s final contention, that there is no
evidence Hedstrom received, read or understood the
POA or its effect, is a repeating of the Administrators’
other arguments, albeit phrased differently. It is unneces-
No. 12-1969 41
sary for us to again explain why we think Hedstrom
received, read, and understood the POA.
In sum, Kotter has presented “clear and convincing”
evidence that the Units were given to her as “gifts” and
that Hedstrom did so with a full understanding of the
legal consequences of his decision. Kotter has demon-
strated that the transactions were fair and, therefore,
has sufficiently rebutted the presumption of fraud.
See Franciscan Sisters, 448 N.E.2d at 878.
3. Breach of Fiduciary Duty Element
Because Kotter has “burst the bubble” and overcome
the presumption of fraud, the Administrators must point
to an issue of material fact in order to survive Kotter’s
motion for summary judgment. See Cloe, 712 F.3d at 1176;
Dep’t of Cent. Mgmt. Servs., 902 N.E.2d at 1134. We are
not convinced they have done that.
The Administrators’ claim requires them to prove at
trial that Kotter breached a fiduciary duty owed to
Hedstrom. See 1515 N. Wells, L.P. v. 1513 N. Wells, L.L.C.,
913 N.E.2d 1, 11 (Ill. App. Ct. 1st Dist. 2009). Kotter could
only breach a fiduciary duty owed if she did not treat
Hedstrom with “the utmost candor, rectitude, care,
loyalty, and good faith.” See Benson, 941 N.E.2d at 397.
In other words, if Kotter helped procure the outcome of
the real estate transactions that Hedstrom wanted, then
there was no breach. See Clark v. Clark, 76 N.E.2d 446,
451 (Ill. 1947) (“Contracts and transactions between
parties to a fiduciary relation, if open, fair and honest
42 No. 12-1969
when deliberately made are as valid as contracts
between other parties.”).
The Administrators’ conclusory statement that Kotter
breached her duty because the Units were not titled
in accordance with Hedstrom’s wishes lacks any real
support. The only direct support the Administrators
can point to is the July 26 letters in which Geldes wrote,
“At closing, title for Unit shall be conveyed by warranty
deed to Mr. Donald Hedstrom.” The problem for the
Administrators is all the documents and admissible
testimony after that point demonstrate that Hedstrom
did not want title to the properties to be solely in his
name. As we have explained, the undisputed evidence
demonstrates that Hedstrom received complete and
adequate information regarding the Units’ titling and
that he knew exactly what he was doing during the
transactions, regardless of the future tax implications
on his estate.
Accordingly, the Administrators are unable to demon-
strate that a reasonable juror could find in their favor
on the issue of breach, an essential requirement of their
claim. And when a party cannot prove an essential element
of a claim at trial, summary judgment against that party
is appropriate. See Majors v. GE Elec. Co., 714 F.3d 527, 532-
33 (7th Cir. 2013) (“Summary judgment is appropriate
if the nonmoving party ‘fails to make a showing
sufficient to establish the existence of an element
essential to that party’s case, and on which that party
with bear the burden of proof at trial.’ ” (quoting Ellis
v. CCA of Tenn. LLC, 650 F.3d 640, 646 (7th Cir. 2011))). We
No. 12-1969 43
believe the district court properly granted summary
judgment in favor of Kotter and against the Administra-
tors.
III. CONCLUSION
The Administrators cannot succeed at trial on either
of their claims. We A FFIRM the judgment of the dis-
trict court.
7-23-13