Donkle v. Lind

2018 IL App (1st) 171915
No. 1-17-1915
Fourth Division
June 28, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
MICHELE PRANNO DONKLE, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellant, )
) No. 16 L 007274
v. )
) The Honorable
CARY A. LIND and CARY A. LIND, P.C., ) William E. Gomolinski,
) Judge Presiding.
Defendants-Appellees. )
)
______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.
OPINION
¶1 The instant appeal arises from a legal malpractice lawsuit filed by plaintiff Michele
Pranno Donkle against attorney defendants Cary A. Lind and Cary A. Lind, P.C., in which
plaintiff alleges that defendants owed plaintiff a duty to inform her of a claim plaintiff had
against her mother’s estate during the course of defendants’ representation of plaintiff with
respect to a lawsuit filed by plaintiff’s sister. Defendants filed a motion to dismiss the
complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2­
619 (West 2016)), claiming that defendants represented plaintiff only in her capacity as
trustee of her mother’s trust and did not represent plaintiff in her individual capacity,
No. 1-17-1915
meaning that defendants had no duty to inform plaintiff of her individual claim against the
estate. The trial court granted defendants’ motion to dismiss, and for the reasons that follow,
we affirm the trial court’s judgment.
¶2 BACKGROUND
¶3 I. Complaint
¶4 A. Allegations of Complaint
¶5 On July 22, 2016, plaintiff filed a complaint for legal malpractice against defendants; the
complaint was amended on March 21, 2017. It is the amended complaint that is the subject
of the instant appeal. The amended complaint alleges that plaintiff is the daughter of Louise
J. Pranno, now deceased, and is the successor trustee to the Amended First Restatement of
the Louise J. Pranno Trust, dated January 27, 1998 (the trust). For at least five years prior to
the death of her mother, plaintiff provided personal care to her mother, who was completely
disabled and required assistance with most of her activities of daily living, which caused
plaintiff “significant financial[ ] and professional hardship and was done at a significant
personal sacrifice to Plaintiff.” Although plaintiff resided with her husband in a home in
Libertyville, when her mother became unable to care for herself, plaintiff began living in her
mother’s home and apart from her husband, which continued for six to seven years while
plaintiff cared for her mother.
¶6 The amended complaint alleges that plaintiff “was the nominated executor of Louise J.
Pranno Will dated March 30, 2007 if the will was admitted to probate and her probate estate
administered.” The amended complaint further alleges that, at all relevant times, the Probate
Act of 1975 (Probate Act) contained a provision permitting a statutory custodial claim
against a decedent’s estate for “[a]ny spouse, parent, brother, sister, or child of a disabled
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No. 1-17-1915
person who dedicates himself or herself to the care of the disabled person by living with and
personally caring for the disabled person for at least 3 years.” 755 ILCS 5/18-1.1 (West
2012).
¶7 The amended complaint alleges that Louise J. Pranno died on September 16, 2013, and
on September 23, 2013, plaintiff’s sister filed suit against plaintiff in the circuit court of
Cook County in an action captioned “Faith Mary Pranno v. Michele J. Pranno Donkle, as
Successor Trustee to the Amended First Restatement of the Louise J. Pranno Trust dated
January 27, 1998” (the underlying litigation). 1 According to the amended complaint, “[t]he
allegations of the underlying Chancery Action related to Plaintiff’s conduct of her duties as
the Successor Trustee and Executor of Louise Pranno’s will. Specifically, Plaintiff’s sister
alleged that Plaintiff improperly distributed the assets of the Estate and otherwise was
committing waste as to the Estate property.” The amended complaint further alleges that
“[t]he Chancery Action sounded in claims for breach of fiduciary duty, redistribution of a
beneficial interest, injunctive relief, and seeking an accounting. [Citation.] The Chancery
Action sought to ‘re-marshal and reallocate the distribution of tangible personal property
and property owned by Decedent’, which would have necessitated the disgorgement of
property and funds from Plaintiff, in her personal capacity, as well as from the other
beneficiaries. [Citation.] Further, the Chancery Action sought relief wherein Plaintiff
(personally) was to pay the Trust the fair market value of the Trust’s real property for the
1
The underlying complaint lists the date of the decedent’s death as September 16, 2012, and not
September 16, 2013, as alleged in the amended complaint. Plaintiff repeats the 2013 date in her brief on
appeal but, given the allegations in the underlying complaint, it is likely that the 2012 date is the correct
one. However, this has no bearing on the issues on appeal.
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No. 1-17-1915
period of time that Plaintiff resided there, while she cared for her mother.[2] [Citation.]”
(Emphasis in original.)
¶8 The amended complaint set forth a single count for legal malpractice, which included the
allegation that “[i]n 2013, Plaintiff and Defendants entered into an attorney-client
relationship wherein Defendants agreed to represent Plaintiff in the Chancery Action.” The
amended complaint alleges that the claims in the underlying complaint “effectively sought
disgorgement and the re-allocation of assets from Plaintiff in her personal capacity, not solely
in her capacity as a Trustee of the Trust.” The amended complaint further alleges that
“Defendants, in effect, undertook to represent Plaintiff in the defense of the Chancery Action
both in Plaintiff’s capacity as Trustee and in Plaintiff’s individual capacity.” According to the
amended complaint, during the course of this representation, defendants failed to advise
plaintiff that she could, in her individual capacity, seek recovery under the Probate Act for
her statutory custodial claim and failed to advise plaintiff of the time limitations in making
such a claim. Defendants also failed to advise plaintiff “that the filing of such a claim would
reduce the litigation expense and provide for a superior settlement in the underlying
Chancery Action.” Accordingly, the amended complaint alleges that defendants breached the
standard of care owed to plaintiff, causing plaintiff damages including the loss of the ability
to recover compensation for the time and effort in providing care to her mother and
additional litigation expenses incurred as a result of the underlying litigation.
2
This statement is factually untrue, as is evident when reading the allegations of the underlying
complaint, as discussed below. The underlying complaint seeks payment of rent for the period of time
after the decedent’s death in which plaintiff continued to reside at the property. The underlying complaint
does not address plaintiff’s living at the property while she cared for her mother.
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No. 1-17-1915
¶9 B. Trust Agreement and Will
¶ 10 Attached to the amended complaint was a copy of the trust agreement, in which plaintiff
was named as successor trustee. The trust agreement set forth several specific gifts, including
a provision that, upon the decedent’s death, her home “shall be sold as soon as is practical
after my death” and that plaintiff was to receive 10% of the net proceeds of sale “for assisting
me [to] maintain my home. This payment shall be in lieu of all fees for acting as successor
trustee or executor of my estate.” The trust agreement also granted plaintiff the right of first
refusal to purchase the decedent’s home from the trust or estate for fair market value at the
time of the decedent’s death. Other than the specific gifts, the trust agreement provided that
the balance of the trust assets were to be equally distributed among the decedent’s three
children.
¶ 11 Also attached to the amended complaint was a copy of the decedent’s will, which named
plaintiff as the executor. The will provided that all of the property owned at the decedent’s
death would be bequeathed to the trust and would be distributed as provided therein.
¶ 12 C. Underlying Complaint
¶ 13 Finally, attached to the amended complaint was a copy of the underlying complaint filed
by plaintiff’s sister, which named as defendant “Michele J. Pranno Donkle, as Successor
Trustee to the Amended First Restatement of the Louise J. Pranno Trust Dated January 27,
1998.” According to the underlying complaint, the decedent died on September 16, 2012, but
despite plaintiff’s position and responsibilities as executor and successor trustee, plaintiff
failed to notify her sister of the death. Additionally, the underlying complaint alleged that
plaintiff failed to properly probate the decedent’s will so that she could legally transfer the
decedent’s property to the trust, but nevertheless, in October 2012, plaintiff began
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No. 1-17-1915
distributing the decedent’s property “in shares of non-equal value to beneficiaries and non-
beneficiaries” of the will and trust. Specifically, the underlying complaint alleged that
plaintiff failed to distribute to her sister “all of what she was supposed to receive pursuant to
the terms of the Will” and trust. The underlying complaint alleged that plaintiff also
conducted an estate sale in November 2012, collecting $3439.64, which plaintiff did not
distribute equally to the beneficiaries.
¶ 14 The underlying complaint also alleged that plaintiff failed to list and sell the real property
owned by decedent as of her death and “[i]n fact, upon information and belief, [plaintiff] is
residing, ‘rent-free’, in the real property owned by Decedent as of her death.” The underlying
complaint alleged that plaintiff was devaluing and causing waste to the property “because she
is not properly cleaning, preparing and/or repairing the real property for listing, and is
residing, ‘rent-free’, in the real property resulting in the real property not being available for
‘showing’ to prospective purchasers and/or renters.” The underlying complaint alleges that
on March 8, 2013, plaintiff’s sister, through counsel, sent plaintiff a demand for an
accounting of the assets and expenses of the trust, which plaintiff failed to provide.
¶ 15 The underlying complaint set forth four causes of action. Count I was for breach of
fiduciary duty, alleging that plaintiff had breached the fiduciary duties owed by her as
executor and successor trustee. Count I requested the following relief: (1) a finding in favor
of plaintiff’s sister and against plaintiff on count I, (2) a finding that plaintiff had breached
her fiduciary duty to her sister, (3) the removal of plaintiff as successor trustee of the trust
and replacement with an alternate successor trustee, (4) an order requiring the alternate
successor trustee to immediately list and sell the real property owned by the decedent as of
her death and distribute the proceeds pursuant to the terms of the trust, (5) an order requiring
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No. 1-17-1915
the alternate successor trustee “to re-marshal and reallocate the distribution of the tangible
personal property and other property owned by Decedent as of her death so that [plaintiff’s
sister] receives an equal share of said property,” (6) an order requiring the alternate successor
trustee to prepare and file an accounting of the assets and expenses of the trust, (7) an order
requiring plaintiff to pay to the trust “the fair market, rental value of her residency at the real
property for the period of time [plaintiff] has resided, ‘rent-free’, at the real property, based
upon [plaintiff’s] breach of fiduciary duty,” (8) damages in excess of $50,000, and (9) an
award of attorney fees.
¶ 16 Count II was for distribution of beneficial interest and alleged that plaintiff had failed to
distribute to her sister her beneficial interest in the assets of the trust. Count II requested the
following relief: (1) a finding against plaintiff and in favor of plaintiff’s sister on count II,
(2) a finding that plaintiff failed to distribute to her sister her beneficial interest in the assets
of the trust, (3) an order requiring the immediate distribution to plaintiff’s sister of her
beneficial interest in the trust assets, including her beneficial interest in the real property
owned by the decedent as of her death, and (4) an award of attorney fees.
¶ 17 Count III was for injunctive relief and alleged that plaintiff, “by not paying rent while
residing at the real property owned by Decedent as of her death, has failed to pay income to,
and devalued, [the trust], resulting in a waste of the assets of” the trust. Count III requested
that plaintiff be (1) enjoined from residing at the real property owned by decedent as of her
death without paying the fair market rental value of residing at the property, (2) required to
reimburse the trust the fair market rental value of residing at the property to date, and
(3) prohibited from using the trust assets to retain and pay for counsel to defend the
underlying litigation.
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No. 1-17-1915
¶ 18 Count IV was for an accounting and requested a finding that plaintiff had failed to
account to her sister for the assets and expenses of the trust and an order requiring the
immediate preparation and production of an accounting of the assets and expenses to date of
the trust, including the rents received and expenses incurred on behalf of the real property
owned by the decedent as of her death.
¶ 19 II. Motion to Dismiss
¶ 20 On April 28, 2017, defendants filed a motion to dismiss the amended complaint pursuant
to section 2-619 of the Code, claiming that defendants represented plaintiff only in her
capacity as successor trustee of the trust and that defendants did not and, ethically, could not
have represented plaintiff in her individual capacity, as such representation would have been
a direct conflict of interest with the representation of plaintiff in her capacity as successor
trustee of the trust and would have violated the Rules of Professional Conduct.
¶ 21 Attached to the motion to dismiss was the affidavit of defendant Cary Lind, in which he
averred that on December 9, 2013, he “entered into an attorney-client relationship with
Michelle [sic] Pranno Donkle, not individually, but solely in her capacity as Successor
Trustee of the Amended First Restatement of the Louise J. Pranno Trust dated January 27,
1998.” Lind further asserted that
“[t]he purpose of this attorney-client relationship was to defend the plaintiff in the lawsuit
that had been filed against her in the Circuit Court of Cook County, Illinois, in her
capacity as Successor Trustee of the Amended First Restatement of the Louise J. Pranno
Trust dated January 27, 1998, captioned Faith Mary Pranno v. Michelle J. Pranno
Donkle, as Successor Trustee to the Amended First Restatement of the Louise J. Pranno
Trust dated January 29, 1998, Case No. 2013 CH 21754. Neither I nor Cary A. Lind,
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No. 1-17-1915
P.C., were retained to represent, agree[d] to represent, or undertook to represent the
plaintiff in any other matter or in any capacity other than her capacity as Trustee.”
¶ 22 Lind alleged that on December 19, 2013, he filed his appearance with the court in the
underlying litigation “on behalf of the plaintiff in her capacity as Successor Trustee of [the
trust].” He further averred that “[n]either I nor Cary A. Lind, P.C., were retained to represent
nor did we agree to represent or undertake to represent the plaintiff in any other matter.” Lind
maintained that he continued to represent plaintiff in her capacity as successor trustee of the
trust until November 20, 2014.
¶ 23 Attached to Lind’s affidavit was an “Agreement for Legal Services,” dated December 9,
2013, and signed by plaintiff. Directly under the heading “Agreement for Legal Services”
were two lines:
“CLIENT: MICHELE J. PRANNO DONKLE, as Trustee
MATTER: DONKLE adv. PRANNO”
The agreement provided that “CARY A. LIND, P.C. (‘Attorney’), agrees to provide legal
services to Client in connection with the above matter. Unless Client and Attorney enter into
a different written agreement, this Agreement will govern all future services which Attorney
may perform for Client.”
¶ 24 Also attached to Lind’s affidavit was a December 19, 2013, appearance entered in the
underlying litigation, which provided that “CARY A. LIND, P.C., hereby files its
Appearance on behalf of Defendant, MICHELE J. PRANNO DONKLE, as said Trustee in
this cause.”
¶ 25 Finally, attached to Lind’s affidavit was a November 17, 2014, “Consent to Withdrawal
and Substitution of Attorneys,” entered in the underlying litigation, which provided that
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“MICHELE J. PRANNO DONKLE (‘MOVANT’), As Successor Trustee to the Amended
First Restatement of the Louise J. Pranno Trust Dated January 27, 1998, hereby consents to
the appearance of GAROFALO LAW GROUP as counsel on her behalf in the place and
stead of CARY A. LIND, P.C. in the above-titled cause.”
¶ 26 III. Trial Court Order
¶ 27 On June 27, 2017, the trial court granted defendants’ motion to dismiss and dismissed
plaintiff’s amended complaint with prejudice. Plaintiff filed a timely notice of appeal, and
this appeal follows.
¶ 28 ANALYSIS
¶ 29 On appeal, plaintiff claims that the trial court erred in granting defendants’ motion to
dismiss because defendants owed plaintiff a duty to inform her of her statutory custodial
claim under the Probate Act. A motion to dismiss under section 2-619 admits the legal
sufficiency of all well-pleaded facts but allows for the dismissal of claims barred by an
affirmative matter defeating those claims or avoiding their legal effect. Janda v. United
States Cellular Corp., 2011 IL App (1st) 103552, ¶ 83 (citing DeLuna v. Burciaga, 223 Ill.
2d 49, 59 (2006)). When reviewing a motion to dismiss under section 2-619, “a court must
accept as true all well-pleaded facts in plaintiffs’ complaint and all inferences that can
reasonably be drawn in plaintiffs’ favor.” Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488
(2008). Additionally, a cause of action should not be dismissed under section 2-619 unless it
is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief.
Feltmeier v. Feltmeier, 207 Ill. 2d 263, 277-78 (2003). For a section 2-619 dismissal, our
standard of review is de novo. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.
2d 558, 579 (2006); Morr-Fitz, Inc., 231 Ill. 2d at 488. De novo consideration means we
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No. 1-17-1915
perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408
Ill. App. 3d 564, 578 (2011). Additionally, even if the trial court dismissed on an improper
ground, a reviewing court may affirm the dismissal if the record supports a proper ground for
dismissal. See Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 261 (2004)
(when reviewing a section 2-619 dismissal, we can affirm “on any basis present in the
record”); In re Marriage of Gary, 384 Ill. App. 3d 979, 987 (2008) (“we may affirm on any
basis supported by the record, regardless of whether the trial court based its decision on the
proper ground”).
¶ 30 As an initial matter, we do not find persuasive plaintiff’s claim that defendants’ motion
was procedurally improper. As noted, “[a] motion for involuntary dismissal under section 2­
619 admits the legal sufficiency of the plaintiff’s claim but asserts ‘affirmative matter’
outside of the pleading that defeats the claim.” Czarobski v. Lata, 227 Ill. 2d 364, 369 (2008).
“Affirmative matter may be ‘something in the nature of a defense that completely negates the
cause of action or refutes crucial conclusions of law or conclusions of material fact contained
in, or inferred from the complaint.’ ” Harris v. Vitale, 2014 IL App (1st) 123514, ¶ 23
(quoting Golden v. Mullen, 295 Ill. App. 3d 865, 869 (1997)). In the case at bar, the
“affirmative matter” asserted by defendants was their claim of lack of a duty, which was
supported by the submission of Lind’s affidavit, the retainer agreement, and the appearance
filed in the underlying litigation, and which negated the legal malpractice cause of action and
refuted the conclusions contained in the complaint that defendants represented plaintiff in her
individual capacity. See Buckner v. O’Brien, 287 Ill. App. 3d 173, 177 (1997) (finding that a
section 2-619 motion was properly granted because allegations in complaint were “negated
and defeated by the affirmative matter [contained in an affidavit] that [the affiant] was not
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No. 1-17-1915
plaintiff’s employer and had no authority to hire or discharge plaintiff”); Milz v. M.J.
Meadows, Inc., 234 Ill. App. 3d 281, 287 (1992) (“Whether a duty exists is a question of law
to be determined by the court [citation], and the nonexistence of a duty may be the basis for a
section 2-619 motion to dismiss [citations].”); Wood v. Village of Grayslake, 229 Ill. App. 3d
343, 349 (1992) (“The issue of whether the defendant owed plaintiff a duty of care is a
question of law to be determined by the trial court which is properly asserted in a motion to
dismiss pursuant to section 2-619.”); Gilmore v. City of Zion, 237 Ill. App. 3d 744, 753
(1992) (section 2-619 motion to dismiss that was supported by affidavit averring that
accident occurred after the beginning of the school day “included affirmative matters in the
nature of a defense which negated the City’s cause of action” and so dismissal was proper).
¶ 31 Additionally, plaintiff’s claims that “the arguments put forth by Defendants’ motion in
the trial court were riddled with questions of fact, including what [plaintiff] knew or
understood the representation to entail and what Defendants’ conduct during their
representation entailed” is an insufficient basis to dispute the validity of their section 2-619
motion. “Once a defendant satisfies th[e] initial burden of going forward on the section 2­
619(a)(9) motion to dismiss, the burden then shifts to the plaintiff, who must establish that
the affirmative defense asserted either is ‘unfounded or requires the resolution of an essential
element of material fact before it is proven.’ ” Epstein v. Chicago Board of Education, 178
Ill. 2d 370, 383 (1997) (quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.
2d 112, 116 (1993)). The plaintiff may establish this by presenting “affidavits or other proof
denying the facts alleged or establishing facts obviating the grounds of defect.” 735 ILCS
5/2-619(c) (West 2016). “The plaintiff’s failure to properly contest the defendant’s affidavit
by submitting a counteraffidavit may be fatal to his cause of action, as the failure to
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No. 1-17-1915
challenge or contradict supporting affidavits filed with a section 2-619 motion results in an
admission of the fact stated therein.” Philadelphia Indemnity Insurance Co. v. Pace
Suburban Bus Service, 2016 IL App (1st) 151659, ¶ 22 (citing Fayezi v. Illinois Casualty
Co., 2016 IL App (1st) 150873, ¶ 44). In the case at bar, the record does not contain any
counteraffidavits challenging defendants’ claims concerning the scope of their duty. We thus
cannot find that it was procedurally improper for defendants to proceed under section 2-619
of the Code.
¶ 32 Turning, then, to the merits of plaintiff’s claim, we cannot find that the trial court erred in
dismissing plaintiff’s amended complaint. “To state a claim for legal malpractice, a plaintiff
must plead and prove that the defendant attorneys owed the plaintiff a duty of due care
arising from the attorney-client relationship, that the defendants breached that duty, and that
as a proximate result, the plaintiff suffered injury.” In re Estate of Powell, 2014 IL 115997,
¶ 13 (citing Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd.,
216 Ill. 2d 294, 306 (2005)). “The determination of whether a duty exists is an issue of law to
be determined by the court.” McLane v. Russell, 131 Ill. 2d 509, 514 (1989). “To conclude
that a duty exists, a court must find that the defendant and the plaintiff stood in such a
relationship to one another that the law imposed upon the defendant an obligation of
reasonable conduct for the benefit of the plaintiff.” McLane, 131 Ill. 2d at 514-15. In the case
at bar, we cannot find that the trial court erred in finding that no such duty existed between
defendants and plaintiff in her individual capacity.
¶ 33 “Typically, an attorney owes a professional obligation only to his client, not to nonclient
third persons.” McLane, 131 Ill. 2d at 515. “The attorney-client relationship is a voluntary,
contractual relationship that requires the consent of both the attorney and client.” People v.
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No. 1-17-1915
Simms, 192 Ill. 2d 348, 382 (2000). “Being a consensual relationship, ‘[t]he client must
manifest [his] authorization that the attorney act on [his] behalf, and the attorney must
indicate [her] acceptance of the power to act on the client’s behalf.’ ” Simms, 192 Ill. 2d at
382 (quoting Simon v. Wilson, 291 Ill. App. 3d 495, 509 (1997)). In the case at bar, the
record reflects that defendants’ “client” was plaintiff in her capacity as successor trustee of
the decedent’s trust. The underlying lawsuit named only plaintiff in her representative
capacity as a defendant, and the retainer agreement listed plaintiff “as Trustee” as the client.
Additionally, the appearance filed by defendants listed only plaintiff in her representative
capacity. Accordingly, defendants owed duties only to their client—plaintiff in her
representative capacity—and did not owe any duties to plaintiff in her individual capacity.
See Adler v. Greenfield, 2013 IL App (1st) 121066, ¶ 61 (making clear that case at issue was
filed by beneficiaries in their individual capacities as opposed to being filed by the executor
in her representative capacity); In re Estate of Wagner, 184 Ill. App. 3d 882, 885 (1989)
(noting the general principle in which an administrator of an estate may not appeal in his
representative capacity from an order affecting his personal rights as an heir or legatee).
¶ 34 We are unpersuaded by plaintiff’s contention that defendants were actually representing
plaintiff in both her representative and individual capacities, based on her claim that the
underlying lawsuit sought relief against plaintiff individually as well as in her representative
capacity. As noted, the underlying lawsuit clearly named only plaintiff in her representative
capacity as successor trustee of the decedent’s trust as a party to the lawsuit. All four causes
of action set forth in the underlying complaint were based on alleged violations of plaintiff’s
duties as trustee, and any relief sought in the underlying lawsuit occurred in that context.
Moreover, “[t]he attorney-client relationship is a voluntary, contractual relationship that
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No. 1-17-1915
requires the consent of both the attorney and client.” Simms, 192 Ill. 2d at 382. The record
shows that defendants consented only to represent plaintiff in her representative capacity, and
plaintiff does not point to any evidence demonstrating that such representation was broader
in scope other than her bare allegations to the contrary. Vague assertions are not sufficient to
demonstrate the existence of a material fact in opposing a motion to dismiss. See Roberts v.
Dow Chemical Co., 244 Ill. App. 3d 253, 257 (1993). As noted, in the case at bar, defendants
presented evidence in their motion to dismiss, and plaintiff did not submit any
counteraffidavits to counter that evidence. See Philadelphia Indemnity Insurance, 2016 IL
App (1st) 151659, ¶ 22 (“The plaintiff’s failure to properly contest the defendant’s affidavit
by submitting a counteraffidavit may be fatal to his cause of action, as the failure to
challenge or contradict supporting affidavits filed with a section 2-619 motion results in an
admission of the fact stated therein.”). Accordingly, the trial court properly found that
plaintiff in her individual capacity was not owed any duties by defendants.
¶ 35 We are similarly unpersuaded by plaintiff’s reliance on Keef v. Widuch, 321 Ill. App. 3d
571 (2001), the primary case plaintiff relies on in support of her argument that defendants
owed her a duty to inform her of her potential individual claim. In that case, a divided
appellate court found that, despite a retainer agreement limiting the scope of representation to
workers’ compensation issues, the defendant attorneys owed the plaintiff a duty to inform
him of the possibility of third party actions arising out of the injury. Keef, 321 Ill. App. 3d at
579. Specifically, the court held that, “in the unique circumstances of this case, workers’
compensation attorneys should have a duty to clients to advise them about the possibility of
third-party actions and either to investigate such claims or to advise the clients to consult
other counsel about such claims.” Keef, 321 Ill. App. 3d at 579.
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¶ 36 In the case at bar, plaintiff argues that “[t]he present matter is directly analogous to the
situation contemplated by this Court in Keef.” However, the fatal flaw in plaintiff’s argument
is her gloss over the Keef court’s actual holding—that “workers’ compensation attorneys
should have a duty to clients to advise them about the possibility of third-party actions and
either to investigate such claims or to advise the clients to consult other counsel about such
claims.” (Emphases added.) Keef, 321 Ill. App. 3d at 579. As established above, plaintiff in
her individual capacity was not defendants’ client. This is not a situation in which defendants
represented a client on one matter and failed to inform that client about a different potential
claim, as was the case in Keef. Instead, plaintiff is attempting to have this court impose a
requirement for an attorney to inform a nonclient about potential claims that the nonclient
has, to the detriment of its client, no less. This we cannot do. Keef is entirely inapplicable to
the instant situation and we cannot find that the trial court erred in dismissing plaintiff’s
complaint.
¶ 37 Since we have determined that the trial court properly found that plaintiff was not
defendants’ client in her individual capacity—and, therefore, was not owed a duty by
defendants—we have no need to consider defendants’ alternative basis for dismissal, namely,
that requiring them to advise plaintiff of her claim under the Probate Act would have resulted
in a conflict of interest that would have violated the Rules of Professional Conduct.
¶ 38 CONCLUSION
¶ 39 For the reasons set forth above, the trial court properly dismissed plaintiff’s amended
complaint because defendants did not have a duty to inform her of her potential statutory
custodial claim under the Probate Act.
¶ 40 Affirmed.
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