Kreisman Law Offices Professional Corporation
Richard Yanni appealed from the trial court’s order that imposed a constructive trust on property he owned and awarded attorney fees and punitive damages against him. The appellate court ruled that the trial court was wrong in denying his motion to dismiss. Accordingly, the Illinois Appellate Court vacated the trial judge’s judgment in favor of the petitioner Diana Law, the Kane County Public Guardian, and reversed the trial judge’s denial of Yanni’s motion to dismiss.
In March 2013, an emergency temporary guardianship brought by the daughter of Patricia Yanni ordered that Patricia was a disabled person. In the petition brought by Patricia’s daughter, Kristin Davison, it was alleged that Patricia Yanni was unable to handle personal and financial affairs due to her dementia and physical illnesses.
Davison alleged that Patricia’s son, Richard, who lived with Patricia, “was found to be neglecting his mother.” Patricia had been removed from her home and placed in a skilled nursing facility. Davison wanted to have the public guardian appointed as guardian of her mother’s estate and to have herself appointed as guardian of her mother. The trial judge granted that petition appointing Davison as temporary guardian with leave to place her mother in an appropriate facility. The court appointed Law, the Kane County Public Guardian, as temporary guardian of Patricia Yanni’s estate. The court also appointed a guardian ad litem (GAL).
The guardian ad litem reported in April 2013 that he met with Yanni and found her “generally * * * oriented as to time and space” such that he was able to “carry on a prolonged and substantial conversation” with her. She was not objecting to the appointment of a guardian, so long as her daughter was appointed. She also told them that Richard “had deeded her residence to himself without her approval, and she is very upset with that matter.”
The guardian ad litem recommended that Davison be appointed guardian of both her mother and her estate and that the estate guardian pursue any and all claims against Richard Yanni in connection with the alleged financial abuse.
The trial court appointed Law as plenary guardian of the estate and later granted her leave to subpoena and depose Richard Yanni. In her Sept, 9, 2013 subpoena for deposition and records request to Richard Yanni, Law specifically requested “[A]ny and all documents regarding the property located at 6N915 Ridge Line Road, St. Charles, Ill., including, but not limited to: deeds, mortgages, notes, closing statements and powers of attorney.”
On Oct. 18, 2013, pursuant to Section 16-1 of the Illinois Probate Act of 1975, 755 ILCS 5/16-1, Law filed a petition for a citation order against Richard Yanni and Fidelity National Title. Fidelity notarized three documents related to the deed transfer. It was shown that about a year after the purchase of the property, Patricia Yanni had refinanced the property with her son and conveyed the property to herself and him as joint tenants with rights of survivorship. Over the years, there were multiple refinancings and other transactions concerning this real estate. In February 2008, she executed a specific durable power of attorney appointing her son as her agent and attorney-in-fact with respect to refinancing and paying off existing liens on the property. This power of attorney was eventually revoked in September 2010.
The gist of the petition by Law was that Patricia Yanni was the rightful owner of a percentage of the property and was entitled to immediate possession of that interest which her son and his wife now possess. The removal of Patricia Yanni from the title to the property “was an illegal conversion of funds.” Richard Yanni filed a motion to dismiss pursuant to Section 2-615 of the Illinois Code of Civil Procedure arguing that an action for conversion applied only to the unlawful exercise of ownership or control over the personal property of another and that it was not an appropriate method to gain an interest in real estate. The trial court denied that motion and Richard Yanni filed an answer and affirmative defenses.
On Oct. 30, 2014, following a two-day trial, the judge entered a written decision. The court noted that the Aug. 1 conveyance was not accompanied by a refinancing, “as had been the history of Patricia and Richard Yanni’s updates and changes in their interests in the Ridge Line property.” The court also found that the signatures on the quit claim deed purporting to be Patricia M. Yanni and the durable power of attorney signed Feb. 20, 2008 were different handwritings. The court placed a constructive trust on the property for Patricia Yanni’s benefit “to the extent of her interest in the property . . .”
The court assessed court costs and attorney fees against Richard Yanni. Because of his “wrongful conduct” in obtaining the property “and to deter similar future conduct,” the court also imposed punitive damages against him “in a sum equal to the appraised value of the property* * * less the $150,000 (or greater) interest of Patricia” plus fees and costs imposed. The court dismissed Richard Yanni’s motion for reconsideration and this appeal was taken.
The court noted that in general, if a defendant files an answer after the trial court denies the motion to dismiss, the defendant forfeits any defect in the plaintiff’s complaint. The court agreed with Richard Yanni that there is no recognized cause of action in Illinois for conversion of real property. Thus, Richard Yanni has not forfeited his argument that Law failed to state the cause of action for conversion. “Conversion is the unauthorized deprivation of property from the person entitled to its possession.”
In addition, the court found that the transfer of Patricia Yanni’s interest in the property generated no cash. There was no converted funds but instead the rights associated with the real estate. Thus conversion claim failed.
In brief, the court found that the only substantive count seeking recovery against Richard Yanni was Count I, which alleged conversion. The appeals panel concluded that this count failed to state a cause of action and that the trial judge erred in denying Richard Yanni’s motion to dismiss. The trial on the citation brought by Law should never had occurred. Therefore, the court ordered that the trial judge’s judgment in favor of Law be vacated, the appellate court reversed the trial court’s judgment denying Richard Yanni’s motion to dismiss and the case was remanded for the dismissal of Law’s amended petition and for further proceedings that would ordinarily follow had the citation been dismissed. Whether the plaintiff would be granted leave to amend the complaint is a decision left to the sound discretion of a trial judge. Thus, the judgment of the circuit court in favor of Law is vacated and the denial of Richard’s motion to dismiss is reversed and the cause is remanded for further disposition.
In re Estate of Patricia Yanni, a disabled person, 2015 IL App (2d) 150108 (Nov. 4, 2015).
Kreisman Law Offices has been handling probate litigation, commercial litigation, medical negligence cases and catastrophic injury cases for individuals and families for more than 38 years, in and around Chicago, Cook County and its surrounding areas including, Joliet, Elgin, St. Charles, Geneva, Bannockburn, Bridgeview, Maywood, Elmhurst, Waukegan, Romeoville and Glenview, Ill.
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