Lampe v. Pawlarczyk

731 N.E.2d 867, 314 Ill. App. 3d 455, 247 Ill. Dec. 94, 2000 Ill. App. LEXIS 424
CourtAppellate Court of Illinois
DecidedMay 30, 2000
Docket1—99—2251, 1—99—2276 cons.
StatusPublished
Cited by22 cases

This text of 731 N.E.2d 867 (Lampe v. Pawlarczyk) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lampe v. Pawlarczyk, 731 N.E.2d 867, 314 Ill. App. 3d 455, 247 Ill. Dec. 94, 2000 Ill. App. LEXIS 424 (Ill. Ct. App. 2000).

Opinion

JUSTICE GORDON

delivered the opinion of the court:

In the first of these two consolidated appeals, Warren R. Lampe and W Robert Lampe (the Lampes) appeal from orders of the Cook County circuit court denying their requests for attorney fees incurred in bringing an action against Linda Pawlarczyk (Linda) and in defending against her counterclaim. The Lampes are nephews of Mabel R. Triner (Mabel) and beneficiaries of the Mabel R. Triner trust (Trust) dated December 19, 1990. In the second appeal, Linda, also a beneficiary of the Trust and formerly trustee, appeals from a circuit court order denying her request for compensation for trustee’s fees. For the reasons set forth below, we affirm in part and reverse in part the trial court’s judgment in Linda’s appeal, and remand the cause. We dismiss the Lampes’ appeal for lack of jurisdiction.

BACKGROUND

The Lampes filed a three-count complaint against Linda on September 2, 1997. In that complaint, they alleged that (1) on February 7, 1997, Linda withdrew from the Trust account and paid to herself $5,000; (2) on April 10, 1997, she caused certain Trust assets to be liquidated and withdrew and paid to herself $32,596; and (3) on April 15, 1997, she caused certain Trust assets to be liquidated and withdrew and paid to herself $2,930. The complaint also alleged that Linda made a claim against the Trust in her individual capacity for compensation for services rendered to Mabel diming Mabel’s life. The Lampes thus allege that Linda put herself in a conflict of interest with the Trust beneficiaries and breached her fiduciary duty as trustee. In count I of their complaint, the Lampes seek Linda’s removal as trustee of the Trust; count II seeks an accounting from her of the Trust assets; and count III asks that a constructive trust be imposed over funds she withdrew from the Trust account. Attached to the complaint is a copy of the Trust agreement executed by Mabel on December 19, 1990, naming Warren Lampe (Warren) and Linda as trustees and designating Robert Lampe (Robert) as successor co-trustee if Warren were unable to serve in that role. The trustees were authorized to distribute for Mabel’s benefit “as much of the net income and principal of the Trust, even to the extent of exhausting principal, as they may *** determine to be required for [Mabel’s] welfare, comfort and support.” Upon Mabel’s death the Trust principal and any accrued income were to be distributed as follows: $10,000 to Linda, and the remainder in equal shares to Mabel’s nephews, the Lampes, and to a third nephew, Harold Richak, who was Linda’s father. According to the terms of the Trust, if Richak predeceased Mabel (which he did), his one-third share was to go to Linda.

On December 5, 1997, Linda filed a countercomplaint seeking $98,000 from the Trust as reimbursement for services Linda allegedly rendered to Mabel for 14 years until her death in 1996. 1 In her countercomplaint, Linda alleged that she and Warren were co-trustees of the Trust until July 13, 1993, when he resigned, and that Robert then was named successor co-trustee but that he resigned on November 15, 1993, leaving her as the sole trustee. She also alleged that on November 22, 1996, Mabel dictated (to Linda) and signed a “letter of direction” stating that Mabel wanted her entire estate to go to Linda. The counterclaim also states that in February 1997 Linda made a demand on the Trust in her individual capacity, claiming $98,000 as compensation for services rendered to Mabel. Attached to the counter-complaint is a copy of that demand, which is the same as the one Linda makes in the countercomplaint. In that demand, Linda states that she cared for Mabel from 1982 until her death in December 1996, providing a variety of services including taking Mabel grocery shopping, paying her utility bills, arranging for and providing transportation to and from doctor and dental appointments, and visiting with Mabel on a regular basis. Linda also oversaw Mabel’s care after she fell and broke her hip in 1986, and upon Mabel’s return home three months later Linda visited her daily for one year, and five times a week for the next five years, during which times she provided various services such as doing Mabel’s laundry and cleaning her apartment. Linda also asserts that in September 1996, when plans were being made for Mabel to move to a nursing home, Linda inspected various facilities before deciding on the one best suited to meet Mabel’s needs. Linda also visited Mabel every day during the time she was in the nursing home. Also included in the attachments to the counterclaim are copies of the Trust and of Mabel’s pourover will, dated December 19, 1990, the date of the Trust agreement. The will names Robert and Warren as co-executors and names Linda as successor executor if both Warren and Robert are unable to serve. Under the terms of the will, any residue of Mabel’s estate and any personal property not disposed of was to be added to the Trust at her death. Finally, the attachments to the counterclaim also included the previously mentioned “letter of direction” allegedly dictated and signed by Mabel stating that Mabel wanted to give $10,000 to each of the Lampes and the rest of her money to Linda.

The Lampes moved for summary judgment on their complaint on January 26, 1998, asking that Linda be removed as trustee, that she be ordered to provide an accounting of the Trust, and that a constructive trust be imposed over the funds Linda had withdrawn from the Trust. According to the Lampes, Linda should be removed as trustee because she put herself in the position of being both trustee of the Trust and an individual claimant against the Trust, thus creating a conflict of interest. They also allege that as beneficiaries they have a right to a full accounting of the Trust plus any other information needed to keep them fully informed. In addition, the Lampes allege that Linda breached her fiduciary duty and thus a constructive trust should be imposed over assets she withdrew from the Trust. The Lampes also move for an award of attorney fees based upon their efforts as beneficiaries to save the Trust from destruction and restore it to its proper purposes. In support of their motion, the Lampes attach a copy of their original complaint and of Linda’s answer.

In her response as trustee to the motion, Linda asserted that she had provided the Lampes with copies of the monthly statements of the Trust account. She also stated that as of May 1, 1997, she and the Lampes agreed that she would make no further withdrawals from the Trust without the agreement of the Lampes or a court order, except to pay outstanding Trust bills. She asserts that she made no withdrawals or payments after May 1, 1997, except to pay outstanding bills of the Trust. Included in the attachments to Linda’s response is a copy of a letter dated May 1, 1997, from Randy Curato, attorney for the Lampes, to Sandra Burns, the attorney for the Trust, confirming the above-mentioned May 1, 1997, agreement. In an affidavit submitted along with her response, Linda states that her attorney notified the Lampes’ counsel on March 24, 1997, that the Trust investments would be converted to cash and that distributions would then be made. According to the affidavit, shortly thereafter attorney Burns told Linda not to convert all the assets to cash because the Lampes’ attorney had indicated that they might want to take their distribution in kind.

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Bluebook (online)
731 N.E.2d 867, 314 Ill. App. 3d 455, 247 Ill. Dec. 94, 2000 Ill. App. LEXIS 424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lampe-v-pawlarczyk-illappct-2000.