Opinion
4-21-0437
04-14-2023
DAVID S. DURBIN and RICHARD L. DURBIN, Plaintiffs-Appellees, v. NANCY L. DURBIN, Individually and as Trustee of the Virginia Rose Durbin Trust, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Sangamon County No. 17CH325 Honorable Ryan M. Cadagin, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Presiding Justice DeArmond and Justice Zenoff concurred in the judgment.
ORDER
STEIGMANN, JUSTICE
¶ 1 Held: The appellate court (1) affirmed the trial court's judgment finding defendant breached her fiduciary duties to plaintiffs in connection with her administration of a trust; (2) affirmed the court's denial of defendant's posthearing motions; (3) affirmed the court's award of compensatory damages, punitive damages, and attorney fees, except for an award of $11,000 for loss of investment income, which the appellate court reversed; and (4) remanded for recalculation of prejudgment interest and punitive damages, taking into account the reversed amount.
¶ 2 In January 2019, plaintiffs, David S. Durbin and Richard L. Durbin, filed an amended complaint alleging defendant, Nancy L. Durbin, trustee of the Virginia Rose Durbin trust, breached her fiduciary duties as trustee in multiple ways, resulting in damages. Defendant admitted some of the allegations in her amended answer. After an evidentiary hearing, in which defendant's counsel generally did not dispute or object to much of the evidence, the trial court found in favor of plaintiffs and awarded compensatory damages, punitive damages, and attorney fees. Defendant filed multiple posthearing motions, taking issue with the court's judgment and seeking to reopen the proofs. The court denied the posthearing motions, and this appeal followed.
¶ 3 Defendant appeals, arguing that the trial court (1) erred when it determined that she breached her fiduciary duties, (2) erred in its calculations of damages because those calculations were against the manifest weight of the evidence, and (3) abused its discretion by denying defendant's posthearing motions to reconsider, to reopen the proofs, to strike plaintiffs' amended complaint, to allow leave to file a counterclaim, and for sanctions.
¶ 4 We conclude that the trial court's findings concerning defendant's breach of fiduciary duties and the court's calculations of damages, generally, were not against the manifest weight of the evidence. We also conclude that the court's rulings on defendant's posthearing motions were not an abuse of discretion.
¶ 5 However, we conclude that the trial court's award of compensatory damages for loss of investment income, based on plaintiffs' request that the court take judicial notice of stock market changes, was not based on any evidence in the record, nor does the record contain a basis for any judicial notice. Accordingly, we reverse that award.
¶ 6 We also remand for a recalculation of the award of prejudgment interest, which would have included the reversed amount in its calculation, and for reconsideration of the punitive damages award, which may have been affected by the reversed amount.
¶ 7 I. BACKGROUND
¶ 8 A. The Amended Complaint
¶ 9 David initially filed suit in September 2017. In April 2019, plaintiffs filed an amended complaint adding Richard as a plaintiff and alleging defendant breached her statutory and fiduciary duties as trustee of the trust. In particular, plaintiffs alleged in part that defendant (1) directed trust assets to be spent drafting a disclaimer for David to surrender his farmland back to the trust and producing a declination form to remove the parties' father, Donald Durbin, as cotrustee, instead of following a trust directive to distribute farmland; (2) failed in her duty to respond to requests for updates on the trust during 2016; (3) failed to distribute 2016 farm income from the trust when received, yet distributed K-1 tax forms to plaintiffs as if income had been distributed, causing plaintiffs to incur income tax liabilities; (4) refused to distribute the farmland or 2017 income unless plaintiffs signed a waiver releasing defendant from all liability in the lack of performance or wrongful conduct in her duties as trustee; (5) obstructed distribution of farmland, causing plaintiffs to incur expenses for surveying necessary to prepare deeds for transfer; (6) refused to perform her obligation to routinely provide plaintiffs copies of trust account bank statements for review, resulting in plaintiffs incurring legal expenses to pursue a motion to compel production of the statements; (7) intentionally or recklessly converted trust assets and made unnecessary and wasteful expenditures by using money from the trust for personal expenses related to her personal residence, inappropriately purchasing title searches that she allowed to expire, and by making other wasteful expenditures; (8) failed to provide annual inventories of trust assets as required by statute; and (9) created conflicts of interest and hostility. The petition included specific calculations showing the amounts of damages incurred and included attachments supporting the allegations. Plaintiffs sought specific performance, compensatory damages, punitive damages, and attorney fees.
¶ 10 B. Defendant's Motions, Amended Answer, and Admissions
¶ 11 In May 2019, defendant, through counsel, filed a motion to dismiss, which the trial court denied. Defendant then filed pro se an answer that included multiple comments on the complaint's allegations and explanations for her behavior. The court later granted plaintiffs' motion to strike improper and extraneous matters in the answer.
¶ 12 In December 2019, defendant filed pro se an amended answer removing the comments and extraneous material. In the amended answer, defendant denied many of the allegations but admitted (1) she used trust assets to draft a disclaimer for David to surrender his farmland and (2) Donald resigned as co-trustee. In denying allegations about failures to make distributions, defendant stated she did not fail to make the distributions but was simply late in making them.
¶ 13 Defendant admitted the allegations of a paragraph concerning conversion of assets that consisted of a table with descriptions and amounts of the expenditures totaling $22,489.49. Before trial, plaintiffs filed a trial brief and a document noting the admission to the converted amounts. Defendant did not file a response to that document.
¶ 14 C. The Evidentiary Hearing
¶ 15 In January 2021, the trial court held an evidentiary hearing.
¶ 16 1. Defendant's Admissions
¶ 17 Plaintiffs first drew the trial court's attention to defendant's amended answer in which she admitted the paragraph of the complaint alleging "[d]efendant converted trust assets or income, of at least of $20,834.02, in violation of her fiduciary duties under Illinois law" and then provided a table detailing personal expenditures defendant made using trust funds. Plaintiffs also presented a demonstrative exhibit of those amounts without objection from defendant. In general, there were very few objections to any of the evidence introduced by plaintiffs at the hearing.
¶ 18 2. Defendant 's Background and Testimony
¶ 19 The evidence presented at the hearing showed the parties' mother, Virginia Durbin, died in December 2015, and their father, Donald Durbin, died in July 2017. Defendant was initially listed as co-trustee with Donald, but Donald subsequently signed a document declining to act as co-trustee.
¶ 20 Defendant was initially represented by James Lestikow, who later withdrew as counsel and was deposed in connection with this litigation. After Lestikow's withdrawal, defendant was represented by multiple attorneys for the duration of the litigation, except when she elected to proceed pro se for a short period of time.
¶ 21 Defendant was briefly called as a witness by plaintiffs to lay the foundation for various documents. Defendant testified she read Lestikow's deposition and looked at the exhibits. She identified documents and email exchanges that were entered into evidence. Defendant also identified an email from February 1, 2018, memorializing a voicemail message left for Lestikow stating she wanted the plaintiffs' deeds held until they paid their share of the funeral expenses. She agreed she left the voice mail and stated, "[I]t would have been nice to get a tombstone."
¶ 22 Defendant also identified a check from Donald's account written on September 12, 2016, to pay taxes on defendant's residence. Defendant stated Donald wanted to help with the taxes and she signed the check with Donald's permission. However, the record contains evidence that in September 2016, Donald was in very poor physical condition and suffered from severe dementia.
¶ 23 3. Lestikow 's Deposition
¶ 24 Plaintiffs introduced into evidence Lestikow's deposition and numerous related exhibits. Defendant did not make any attorney-client privilege objections during the deposition or when the deposition was admitted into evidence at the hearing.
¶ 25 In his deposition, Lestikow indicated he represented defendant and Richard jointly regarding the trust based on a representation from defendant that Richard was going to help her in administering the trust. The record contains a letter from Lestikow to defendant, Richard, and Donald, dated January 29, 2016, stating his representation of all three people and disclosing the benefits and risks of joint representation. That letter stated, "Conformation that any of you provide to our firm cannot be withheld from our other clients in this engagement, even if that information would otherwise be privileged from disclosure." However, a letter from Lestikow to defendant dated October 5, 2017, stated he was representing defendant "in a new matter" and individually as trustee.
¶ 26 In his deposition, Lestikow stated he met with defendant in 2016 about her service as trustee of Virginia's trust. The trust assets generally consisted of a single-family residence and farmland. There were few liquid assets. The trust provided that (1) defendant was to receive the residence and (2) the farmland was to be distributed between the parties in discrete tracts. It was Lestikow's intention to get the farmland distributed as quickly as possible so each party could attend to their tracts outside of the trust, resulting in less trust administration. To that end, Lestikow prepared trustee's deeds and ordered title insurance for each party "pretty early on," possibly in January 2016.
¶ 27 Defendant told Lestikow that David had not visited their parents in a number of years and had said he did not want any part of the trust. Lestikow stated he prepared a disclaimer to follow through on that intent. He said he did not communicate with David about the issue but said, "I think I confirmed it through Richard at the time." David refused to sign the disclaimer. Lestikow could not recall the value of the tract of farmland at issue, but he stated it was "one-half of a quarter section, so it's a substantial piece of farmland." In May 2016, David retained separate counsel.
¶ 28 The record contains an email from David's attorney seeking an accounting and documents. It also includes an email Lestikow sent to defendant in September 2016, in which he told her she had a duty to account for trust assets and referred to David's attorney. Defendant responded, stating, "I have hired an attorney to contest David's farm inheritance. He did not speak to his mother since 2004 for absolutely no reason. He is a vicious heartless and remorseless person."
¶ 29 In a June 2017 email, defendant again wrote to Lestikow, stating she would be protesting David's share. Lestikow responded there was no provision in the law for protesting David's distribution.
¶ 30 Lestikow initially did not recall any conversation with defendant about her duties to provide an annual accounting but stated he never told her she was not required to keep plaintiffs updated about the trust. However, later in the deposition, Lestikow recalled a provision of the trust under which, upon written request, defendant was required to send a written account of all trust receipts, disbursements, and transactions.
¶ 31 Regarding 2016 income distributions and the issuance of K-1 tax forms, Lestikow stated defendant informed him that her accountants had suggested that, although she did not distribute the income, there would be tax benefits if they prepared the trust tax returns to show the distributions so the individuals would be taxed on them instead of the trust. Lestikow had no part in giving that advice and sent an email to defendant stating he did not think it was a good idea. When asked to clarify what was not a good idea, he stated, "To do what this-what they ultimately did and report a distribution that wasn't made because it's going to require the distributees to amend their tax returns and given the amount of income, the tax benefit is probably going to be negligible."
¶ 32 However, Lestikow believed defendant ignored his advice and did not distribute the income but filed tax returns as if the money had been paid. He agreed doing so would not only require plaintiffs to have to amend their 2016 tax returns to show income they did not actually receive, but it would also probably result in payment to somebody to do that for them as well as interest and penalties. Lestikow summarized his statements by saying, "[y]eah, just a bad idea."
¶ 33 At some point, Lestikow also learned defendant had not correctly filed the 2014 and 2015 taxes. Defendant told him they were late because she was sick from sewer gas in her home.
¶ 34 In November 2016, Lestikow sent an email to David's counsel stating Lestikow resigned as counsel for defendant and Richard. At his deposition, he stated he resigned but then "unresigned." He explained he initially resigned "out of frustration" because only minor things had been done in the first year and he was not getting any cooperation from defendant. However, he received assurances things would turn around, and so he did not actually resign.
¶ 35 Concerning the conversion of assets, the record contains an April 14, 2017, email from Lestikow to defendant advising her he anticipated objections to her payment of expenses for her residence from the trust. Lestikow also identified a May 2017 email in which defendant admitted she failed to make distributions. In the email, defendant stated the farm manager made payments to the estate instead of individuals because he did not have "EIN" numbers for them. She stated she was unaware of the error until she received a letter from Lestikow and wrote, "[disbursements] should have been made all along to [plaintiffs]." She then wrote in part: "I have spent down much of the money in the account on living expenses. I need to replace that cash. And get the mess straightened out. The [t]rust taxes were completed this week but not picked up yet. [Plaintiffs] need their [disbursements]."
¶ 36 Lestikow indicated he told defendant she needed to replace the money and he never communicated his approval of any of the personal transactions made by defendant. He further agreed he never would tell her it was okay to (1) spend the trust money as she did, (2) not distribute income, or (3) do the taxes the way she did. He also agreed nothing in the trust document permitted defendant to pay expenses or taxes beyond those required by the trust.
¶ 37 An email from Lestikow to David's attorney stated that, "[g]iven David's uncooperative attitude," Lestikow did not intend to deed the land until there was an approval of the account and release of defendant from liability. Lestikow denied he ever advised defendant to obtain a release of liability before distributing the 2017 income. He stated it was common practice to get a release when there had been an accounting and a final distribution is ready, but he never advised defendant to get a release before an accounting was made.
¶ 38 In this case, a final accounting had not yet been done, and there was a dispute related to survey costs paid for by plaintiffs. Lestikow stated defendant got four bids and two were lower than the bid accepted by plaintiffs, so defendant was not going to pay more than the one-third of what she would have paid for the lowest survey that she would have retained.
¶ 39 An email exchange between defendant and Lestikow in October 2017 indicated Lestikow told defendant she should have resigned as trustee when she encountered difficulties in performing her duties and, when she did not do so, she accepted responsibility for those things. Other correspondence indicated a possibility defendant would withdraw as trustee, but there were concerns the named successor in the trust, a bank, would likely decline to act as trustee.
¶ 40 In January 2018, Lestikow withdrew as counsel because of the disputes between the parties, causing a conflict of interest between them.
¶ 41 4. David's Testimony
¶ 42 David testified that, under the trust, defendant was to receive 41 acres of farmland, the residence, and a car. Richard was to receive 39 acres, and David 20 acres. David did not receive a deed for his portion until January 2018. He then sold the land for $231,686.
¶ 43 David stated he never told defendant, Richard, or Lestikow he wanted to release his interest in the property. He said there was no reason he would disclaim his interest, and he did not sign the release documents. David also verified he and Richard received K-1 tax documents for income distributions that were not actually paid to them.
¶ 44 David testified he and Richard requested to see trust bank account statements, and defendant did not comply. Plaintiffs were required to take legal action through an attorney to obtain the records, incurring $641.25 in legal fees. Although David referred to the action as a "motion to compel," the record indicates his counsel sent defendant a "request to produce."
¶ 45 Another issue arose over title searches. Defendant presented plaintiffs with a bill for title searches she had not disclosed to them when they had already paid $2603 for their own title searches. David identified a table in the amended complaint outlining unnecessary, wasteful, or inappropriate expenditures showing the title search fees.
¶ 46 David also included in his table of inappropriate expenditures tax preparation fees and tax liabilities for 2017. David testified the expenses were incurred due to defendant's unnecessarily keeping the trust open beyond 2016. The total of the expenses was $4556.13. David acknowledged he was paid all the farm income due to him after litigation commenced.
¶ 47 David testified that (1) defendant did not know the property needed to be surveyed to distribute it and (2) defendant presented him with a deed that had an improper legal description. There was no money in the trust, so David and Richard began work on getting surveys done. Plaintiffs demanded defendant pay her share of the survey costs, but she never complied.
¶ 48 Tracy Garrison, a licensed surveyor, completed the survey for $2300. David paid $400 and was reimbursed by the trust. Richard paid $1900 and was never reimbursed. David said there was a disagreement about whether the survey was done correctly and whether appraisals were needed to determine each person's tax basis regarding their tracts. Plaintiffs demanded defendant obtain appraisals, but she did not do so.
¶ 49 The record includes email correspondence showing disagreements about the survey and indications defendant previously combined parcels of her land into one tract, but she then disagreed with Garrison's survey showing that as a single parcel. In an email to defendant, Richard told defendant, "You screwed up big time by signing a quit claim deed combining those tracts. That's your fault so quit blaming other people for your mistake."
¶ 50 Richard further wrote that defendant had the opportunity to ask Garrison questions and stated, "[T]he way you deal with people-screaming, giving them the finger, shouting like a street drunk, doesn't produce any positive results. For once be honest and assign yourself some rightful blame here." In another email, Richard told defendant she could hire a surveyor to split up her property, but it would be at her own cost and not from the trust.
¶ 51 In an email to Garrison, defendant stated she did not agree with how the survey was performed and told Garrison, "I really owe you nothing." In an email from Garrison to defendant, Garrison wrote: "If you are having a problem with what your parents have given to you in their will as opposed to what I have drawn on the plat, then have your attorney convey that to my client's attorney." She further wrote: "Please have your attorney explain any problems to your brothers' attorney as I should not be involved in this kind of discussion, [t]hat is why you and your brothers have attorneys."
¶ 52 5. Paul Rice S Testimony
¶ 53 Paul Rice, the owner of a farm management real estate brokerage and auctioneer service, testified he managed the farm leases, collected cash rents, and worked with tenants for the farm. Rice testified about the need for surveys to parcel out the land. After discussions with the parties, Rice reached out to two licensed surveyors and contracted Garrison to conduct the surveys. Garrison was the lower bidder. Rice also spoke with a person at the regional planning office and a person in zoning to make sure they proceeded appropriately and the surveys were done correctly.
¶ 54 Rice testified defendant told him she had a cheaper quote from another surveyor. However, she never provided the quote or information about the other surveyor to him. Rice opined the surveys were performed correctly. Rice said defendant was also confrontational about multiple issues, including the surveys. For example, in an email to Rice, defendant stated Rice "screwed things up" with the title work and surveys and accused Rice of being "a giant roadblock," who "made doing the trust Hell always screwing everything up."
¶ 55 Regarding other issues, Rice said defendant would speak negatively about her brothers. Although she did not tell him she was trying to obtain all the property for herself, Rice felt that was her ultimate desired outcome. Rice stated he strongly felt defendant wanted everything to stay the same, and it was a struggle to get from point A to point B with the project.
¶ 56 6. Thomas Flynn 's Testimony and the Final Accounting
¶ 57 Thomas Flynn, a certified public accountant who did work for the Durbin family, testified about the final accounting performed in 2019. Flynn identified items listed as personal to defendant and stated it appeared she paid those items back to the trust. He said the numbers were provided to him by defendant in a spreadsheet. He said he "asked for a few more documents, copies of bank statements and those things so we could verify that the money that went through the account was accounted for." He did not know when those reimbursements were made in comparison to the date of the filing of the lawsuit.
¶ 58 7. Plaintiffs' Closing Argument
¶ 59 Defendant did not present any witnesses. The parties provided written closing arguments. Plaintiffs' closing argument summarized the evidence and particularly noted defendant did not rebut the testimony against her and made various admissions in her amended answer.
¶ 60 Regarding defendant's claim she reimbursed the trust for converted funds, plaintiffs argued that assertion "was not backed up with any hard evidence." Plaintiffs noted, "Defendant did not, after admitting the conversion in her [a]nswer, prove dollar for dollar a credit to which she is entitled. Nor did she prove the source of the funds she paid back were her own." Plaintiffs further argued: "If she did not tie up the fact that it was her own funds used, she cannot claim the trust was fully, properly repaid." Plaintiffs also argued (1) defendant did not distinguish money paid to the trust from farm income and (2) her claims concerning reimbursement were not credible.
¶ 61 Although not specifically set forth in their complaint, plaintiffs also argued statutory law required a trustee to act as a prudent investor. Plaintiffs stated, from one month after Virginia's death in 2015 to the present, stock averages had more than doubled. Plaintiffs asserted the court could take judicial notice of stock price changes from the internet and wrote, "[e]ven if half of the trust fund had been invested in secure stocks, that $11,000 of just the $22,000 converted sums would have generated another $11,000." Plaintiffs also asked for prejudgment interest for unreasonable or vexatious behavior, punitive damages, and attorney fees.
¶ 62 8. Defendant's Closing Argument
¶ 63 Defendant filed a written closing argument, asserting that the land and all income payments were distributed. Defendant argued the residence needed repairs and stated she reimbursed all items identified as personal expenses before the lawsuit was filed. She also stated she was entitled to compensation for acting as trustee. Defendant noted a paragraph of the trust stating a trustee acting in good faith shall not be liable for any act or omission. She also noted a section concerning powers to distribute undivided interests, stating no action by the trustee under that section shall be subject to question by any beneficiary. Defendant stated, after funeral expenses, the trust cash amount was only $12,964. She likened the action to a "small claims case" and stated she did not profit in any way from acting as trustee.
¶ 64 D. The Trial Court's Order
¶ 65 1. Findings of Breach of Fiduciary Duty
¶ 66 On March 1, 2021, the trial court entered a written order finding in favor of plaintiffs. The court wrote that it considered the testimony of the witnesses, all the exhibits admitted into evidence, and Lestikow's deposition. The court also considered written submissions of the parties before and after trial and admissions made by defendant in her amended answer. The court found defendant breached her fiduciary duties to plaintiffs in numerous ways, including by (1) failing to properly distribute property under the specific terms of the trust, (2) attempting to have David disclaim his interest in the trust, (3) withholding distributions under a demand that plaintiffs release her from liability, (4) failing to properly pay income from the trust, (5) converting trust property, (6) wasting trust property, (7) failing to provide an inventory, (8) failing to provide an accounting, (9) failing to share information, (10) failing to keep and disclose bank records, (11) failing to act as a prudent investor of assets, and (12) other misconduct evidencing bad faith and willful actions.
¶ 67 2. Damages
¶ 68 Also on March 1, 2021, the trial court removed defendant as trustee and found "[a]t a minimum" the following damages: (1) conversion, $22,489.49; (2) waste, $4556.13; (3) amount due to Richard for surveying costs, $1900; (4) amount spent to get bank records, $641.25; (5) half of lost investment income from converted funds, $11,000 and; (6) 5% prejudgment interest rounded to five years, $10,146.65. The resulting total was $50,733.27.
¶ 69 The court further found defendant's conduct warranted punitive damages. The court found defendant's conduct covered a significant length of time and was pervasive and repetitive. The court further wrote, "[s]he violated nearly all, if not all, fiduciary duties that exist under Illinois law for trustees." The court further found defendant admitted to wrongdoing, but she showed no remorse and instead blamed the plaintiffs and made "wild excuses" or claimed there was no harm done by her conduct. Finally, the court found defendant had sufficient assets for the court to consider punitive damages. The court stated it would also award attorney fees and continued the matter for a hearing on the amount of punitive damages and attorney fees.
¶ 70 E. Posthearing Motions
¶ 71 Plaintiffs filed documents concerning attorney fees and initially sought $78,569.33 in fees. Plaintiffs also sought punitive damages of $225,000 based on ratios derived from case law.
¶ 72 Defendant's trial counsel withdrew. On May 20, 2021, defendant, through new counsel, filed a motion to strike, vacate the judgment, reopen defendant's evidence, or in the alternative provide a petition in mitigation. Defendant alleged (1) the judgment "was based upon false testimony, half-truths, speculation and failed evidence" and (2) the "evidence in [the] case [was] not yet concluded." Defendant also took issue with various portions of the evidence, arguing documents in the record showed witnesses falsified testimony and disputing various calculations of damages.
¶ 73 1. Motion To Reconsider and To Reopen Proofs
¶ 74 Defendant also argued she could not have distributed the trust assets at the time of Virginia's death because the trust lacked sufficient funds to do so. She alleged she used portions of her farm income to pay trust expenses and plaintiffs were required to contribute to trust expenses. She provided various calculations to support her arguments. Defendant acknowledged her failure to provide the evidence at the trial and cited the lack of competency of her trial counsel for that failure.
¶ 75 Defendant also took issue with the award of lost investment income, arguing the issue and amount was (1) raised for the first time in plaintiffs' closing argument, (2) speculative, and (3) not based on any evidence. Defendant also argued the award of prejudgment interest was speculative.
¶ 76 2. Motion To Strike Lestikow 's Deposition
¶ 77 Defendant also sought to strike Lestikow's deposition based on attorney-client privilege and argued her trial counsel failed to properly obtain her consent to waive the privilege. Finally, she argued, based on her allegations in the motions, "[i]n determining what, if any, penalties and attorney fees should be awarded, it should be remembered that the [p]laintiffs have already received more from the [t]rust than they rightfully were entitled to receive."
¶ 78 3. Motion To File a Counterclaim and Strike Plaintiffs' Amended Complaint
¶ 79 Plaintiffs moved to strike defendant's motion, arguing defendant (1) failed to show cause to reopen the proofs, (2) failed to object to most of the evidence at the evidentiary hearing, and (3) failed to meet her burden to assert and prove attorney-client privilege.
¶ 80 Defendant then moved for leave to file a counterclaim, seeking contribution of expenses from plaintiffs as alleged in her previous motion, and moved for sanctions, repeating her allegations of false testimony. She also moved to strike plaintiffs' amended complaint, alleging it was not properly verified, making it and all documents filed after it a nullity.
¶ 81 Plaintiffs responded that defendant's motions were frivolous and asked for sanctions. Plaintiffs also updated their final calculation of attorney fees, seeking $94,290.34.
¶ 82 4. The Hearing on the Motions
¶ 83 In July 2021, the trial court conducted a hearing on defendant's motions. The court found the argument concerning verification of the amended complaint forfeited because defendant answered the complaint and did not object before trial. The court further denied defendant's remaining motions. The court also took the following action.
¶ 84 a. Reconsideration of $11,000 for Lost Investment Income
¶ 85 The trial court inquired about evidence supporting the $11,000 award for lost investment income, stating it wanted to refresh its recollection as to where that came from. The court then read the portion of plaintiffs' closing argument concerning the issue.
¶ 86 b. Attorney Fees and Punitive Damages
¶ 87 Plaintiffs provided evidence concerning attorney fees. David identified documents and testified about fees paid to multiple attorneys in connection with the trust litigation and how he separated out portions of fees from various attorneys that were related to other litigation. Plaintiffs' counsel also testified about the amount of fees and how they were divided. The parties stipulated that plaintiffs' counsel charged a reasonable hourly rate. The trial court admitted plaintiffs' exhibit A, showing the amount of fees, over defendant's objection based on a lack of foundation. The court noted David's testimony that he hired the attorneys, reviewed the bills, which were business records, and paid the bills. The parties made arguments concerning punitive damages, and the court took the issues of fees and punitive damages under advisement.
¶ 88 F. Final Order
¶ 89 Later in July 2021, the trial court entered its final order on attorney fees and punitive damages. The court restated its finding of $50,733.27 in compensatory damages and awarded $94,290.34 in attorney fees and $20,000 in punitive damages, for a total of $165,023.61. This appeal followed.
¶ 90 II. ANALYSIS
¶ 91 Defendant appeals, arguing that the trial court (1) erred when it determined that she breached her fiduciary duties, (2) erred in its calculations of damages because those calculations were against the manifest weight of the evidence, and (3) abused its discretion by denying defendant's posthearing motions to reconsider, to reopen the proofs, to strike plaintiffs' amended complaint, to allow leave to file a counterclaim, and for sanctions.
¶ 92 We conclude that the trial court's findings concerning defendant's breach of fiduciary duties and the court's calculations of damages, generally, were not against the manifest weight of the evidence. We also conclude that the court's rulings on defendant's posthearing motions were not an abuse of discretion.
¶ 93 However, we conclude that the trial court's award of compensatory damages for loss of investment income, based on plaintiffs' request for the court to take judicial notice of stock market changes, was not based on any evidence in the record, nor does the record contain a basis for any judicial notice. Accordingly, we reverse that award.
¶ 94 A. Breach of Fiduciary Duties
¶ 95 Defendant first argues the trial court erred by finding she breached fiduciary duties owed to plaintiffs. In general, she argues the trial court misinterpreted the trust. She also disagrees with various facts presented at the evidentiary hearing. Plaintiffs respond that the court's determination was well supported by the record, noting defendant in some instances admitted her breach of fiduciary duties, and, in other instances, failed to object to or present evidence to dispute the facts presented against her. We disagree with defendant's argument.
¶ 96 1. Review of a Fiduciary S Legal Duties
¶ 97 "To state a claim for breach of fiduciary duty, it must be alleged and ultimately proved: (1) that a fiduciary duty exists; (2) that the fiduciary duty was breached; and (3) that such breach proximately caused the injury of which the party complains." Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 69, 983 N.E.2d 414.
¶ 98 "Trustees have the obligation to carry out the trust according to its terms, to use care and diligence in protecting and investing trust property and to use perfect good faith." McCormick v. McCormick, 118 Ill.App.3d 455, 462, 455 N.E.2d 103, 110 (1983). The trustee is obligated to carry out the trust according to its terms. In re Estate of Halas, 209 Ill.App.3d 333, 344, 568 N.E.2d 170, 178 (1991) (citing McCormick, 118 Ill.App.3d at 462.) The trustee also must act with the highest degree of fidelity and utmost good faith. Id. "A trustee is under a duty to serve the interests of the beneficiaries with complete loyalty, excluding all self-interest, and is prohibited from dealing with the trust property for his individual benefit." Id. Further, a trustee must not waste assets. See Hausmann v, Hausmann, 231 Ill.App.3d 361, 366-77, 596 N.E.2d 216, 219-20 (1992). These principles are also reflected in the Illinois Trust Code (760 ILCS 3/101 et seq. (West 2020)), which provides a trustee, among other things, must (1) act with impartiality (id. § 803), (2) exercise prudent administration (id. § 804), (3) incur only reasonable costs in relation to the trust property (id. § 805), and (4) keep adequate records and keep trust property separate from the trustee's own property (id. § 810).
¶ 99 Our standard of review is whether the trial court's finding of a breach of fiduciary duty is against the manifest weight of the evidence. See Howard v. Zack Co., 264 Ill.App.3d 1012, 1024, 637 N.E.2d 1183, 1191 (1994). Likewise, the standard of review over the trial court's award of damages is whether the judgment is against the manifest weight of the evidence. 1472 N. Milwaukee, Ltd. v. Feinerman, 2013 IL App (1st) 121191, ¶ 13, 996 N.E.2d 652. Decisions concerning awards of prejudgment interest are also based on questions of fact, and the trial court's determination will not be disturbed on review unless contrary to the manifest weight of the evidence. Pietka v. Chelco Corp., 107 Ill.App.3d 544, 558, 437 N.E.2d 872, 883 (1982).
¶ 100 "Manifest weight" means a level of proof that leads to a result that is "clearly evident, clear, plain and indisputable." Laroia v. Reuben, 137 Ill.App.3d 942, 946, 485 N.E.2d 496, 499 (1985). A trial court's findings of fact are "not against the manifest weight of the evidence merely because the record might support a contrary decision." Graham v. Mimms, 111 Ill.App.3d 751, 767, 444 N.E.2d 549, 560 (1982).
¶ 101 2. Review of the Findings of Breach of Fiduciary Duties
¶ 102 Here, the trial court found defendant breached her fiduciary duty in numerous ways, including by (1) failing to properly distribute property under the specific terms of the trust, (2) attempting to have David disclaim his interest in the trust, (3) withholding distributions under a demand that plaintiffs release her from liability, (4) failing to properly pay income from the trust, (5) converting trust property, (6) wasting trust property, (7) failing to provide an inventory, (8) failing to provide an accounting, (9) failing to share information, (10) failing to keep and disclose bank records, (11) failing to act as a prudent investor of assets, and (12) other misconduct evidencing bad faith and willful actions. The court also entered a compensatory damage award based largely on undisputed evidence in the record.
¶ 103 We first note the record establishes multiple instances of defendant's breach of fiduciary duties. Defendant admitted to conversion of trust property to pay her personal expenses. The record further contains ample evidence defendant failed to timely act to distribute trust properly and instead wasted time and money seeking a disclaimer from David and disputing surveying and other costs. She presented inaccurate tax documents and failed to provide records as requested. Given defendant did not dispute most of the evidence supporting those conclusions, the trial court's finding she breached her fiduciary duty was not against the manifest weight of the evidence.
¶ 104 Defendant takes issue with the trial court's findings primarily by arguing the court improperly interpreted language of the trust requiring distributions and sharing of documents. Defendant first argues she was not required to make income distributions at all until the trust was terminated and, because the trust did not have enough money to distribute the land, plaintiffs were required to contribute to expenses before any distribution could occur. She then provides various calculations to argue she paid more than her fair share of expenses. Defendant's argument fails for several reasons.
¶ 105 First, the trial court found defendant breached her fiduciary duty in numerous ways aside from the lack of timely distribution. Second, defendant's argument ignores that, even if she were not required to make immediate distributions under the trust, once she decided to undertake making distributions, she would still have a duty to do so properly.
¶ 106 Finally, as we discuss in greater detail when addressing defendant's motion to reopen the proofs (infra ¶¶ 144-152), defendant's argument is based on unsupported assertions and calculations not provided to the trial court. For example, defendant asserts she paid expenses from her own personal funds, but she did not present evidence of those expenses or the source of the funds used for claimed reimbursements, nor did she make such an argument at the evidentiary hearing. Thus, defendant fails to demonstrate that the court's determination that she breached her fiduciary duty to plaintiffs was against the manifest weight of the evidence.
¶ 107 Accordingly, the next question is whether the trial court's individual damage calculations were against the manifest weight of the evidence.
¶ 108 B. Damages
¶ 109 With one exception, we agree the trial court's damage awards were not against the manifest weight of the evidence. We address each specific award in turn below.
¶ 110 1. Conversion
¶ 111 In her amended answer, defendant admitted allegations of conversion and the amount of damages. She further did not dispute the allegations in documents filed noting her admissions. At trial, defendant did not dispute she spent trust money on personal expenses, and the record includes admissions she made in emails that she did so. Thus, the trial court awarded $22,489.49 for conversion as set forth in the allegations and supporting exhibits.
¶ 112 Defendant argues she paid back the converted sums and notes the final accounting showing she paid money back into the trust. However, "[a]n action for conversion will lie even though the defendant has returned the property." Illinois Education Ass n v. Illinois Federation of Teachers, 107 Ill.App.3d 686, 689, 437 N.E.2d 1265, 1267 (1982). Moreover, defendant's arguments are irrelevant considering she admitted both (1) the act of conversion and (2) the amount of damages. Given defendant's admissions and lack of evidence to the contrary, the trial court's award of $22,489.49 for conversion was not against the manifest weight of the evidence.
¶ 113 2. Waste
¶ 114 The trial court awarded $4556.13 for waste. Defendant argues the amount was not supported by the evidence. However, David testified about the waste and identified the amounts sought by plaintiffs without objection from defendant. Thus, as with the award for conversion, defendant did not dispute the amounts presented to the trial court in support of the award. Accordingly, the trial court's determination was not against the manifest weight of the evidence.
¶ 115 3. Surveying Costs
¶ 116 Defendant contends there was a lack of evidence supporting the trial court's award of $1900 to Richard for surveying costs. However, David testified without objection about the amount paid for the surveys and stated Richard was not paid. Thus, the amount was not disputed, and the trial court's award was not against the manifest weight of the evidence.
¶ 117 4. Amount Paid To Obtain Bank Records
¶ 118 Defendant argues the award of $641.26 for the amount spent to obtain bank records was unsupported by the evidence because the record does not show plaintiffs filed a motion to compel production of the records. However, the record shows David was required to take legal action through an attorney to obtain the records, incurring legal fees. Although David referred to the action as a "motion to compel," the record shows the attorney sent defendant a "request to produce," and David incurred $641.25 in expenses related to that. Like other issues of fact presented at the hearing, defendant did not object to that evidence or dispute it. Accordingly, the trial court's determination was not against the manifest weight of the evidence.
¶ 119 5. $11,000for Lost Investment Income
¶ 120 Defendant argues plaintiffs failed to provide evidence to support the trial court's award of $11,000 for lost investment income. On this point, we agree. While a trustee has a duty to perform as a prudent investor, plaintiffs raised the issue of lost investment income for the first time in their written closing argument. In doing so, they asserted the court could take judicial notice from the internet of stock price changes. Plaintiffs then stated, without providing a source for factual support, from one month after Virginia's death in 2015 to the present, stock averages had more than doubled and, "[e]ven if half of the trust fund had been invested in secure stocks, that $11,000 of just the $22,000 converted sums would have generated another $11,000." The court then based its award on plaintiffs' bare assertion that half of the lost investment income totaled $11,000.
¶ 121 "Facts of which a court may properly take judicial notice are those facts which are in the common and general knowledge and are known to well-informed persons in the community so that they may be accepted by the court without proof." Gotter v. Industrial Comm n, 152 Ill.App.3d 822, 828, 504 N.E.2d 1277, 1281 (1987). They must be" 'known and well established and authoritatively settled, not doubtful or uncertain.'" Motion Picture Appeal Board of the City of Chicago v. S. K. Films, 65 Ill.App.3d 217, 226, 382 N.E.2d 103, 110 (1978) (quoting Sproul v. Springman, 316 Ill. 271, 279, 147 N.E. 131, 135 (1925)).
¶ 122 Here, plaintiffs did not provide a source for their assertion concerning the doubling of the stock market. Then, the trial court, in awarding $11,000 for lost investment income, stated no basis for that amount and did not state it took judicial notice of anything. Thus, the trial court's award was against the manifest weight of the evidence as there was no evidence at all to support the amount of the award. Accordingly, we reverse the portion of the trial court's award of compensatory damages for $11,000 in lost investment income.
¶ 123 6. Prejudgment Interest
¶ 124 Defendant does not challenge the trial court's authority to award prejudgment interest. Instead, defendant argues the award was improper because the other amounts of damages awarded were in error. Because we find the trial court improperly awarded $11,000 for half of the lost investment income, we reverse and remand for a recalculation of the prejudgment interest award less that amount. We otherwise affirm the award of prejudgment interest.
¶ 125 7. Punitive Damages
¶ 126 Defendant argues the punitive damage award "shocks the conscious [ sic ]" because even the compensatory damages award, which resulted in plaintiffs' receiving more than their original share of the trust, was improper.
¶ 127 In general, the purpose of punitive damages is to punish the wrongdoer and deter the wrongdoer and others from committing similar acts in the future. McQueen v. Green, 2022 IL 126666, ¶ 58, 202 N.E.2d 268. Punitive damages may be awarded when a defendant acts willfully or with such gross negligence as to indicate wanton disregard of the rights of others. Id. In determining whether punitive damages are appropriate, the trier of fact considers the character of the defendant's act, the nature and extent of the harm caused, and the wealth of the defendant. Id. Because punitive damages are penal in nature, they are not favored in the law, and courts should take caution to see that punitive damages are not awarded improperly or unwisely. Slovinski v. Elliot, 237 Ill.2d 51, 58, 927 N.E.2d 1221, 1225 (2010).
¶ 128 The standard of review of punitive damages following a bench trial is a multi-step inquiry. See Gambino v. Boulevard Mortgage Corp., 398 Ill.App.3d 21, 51, 922 N.E.2d 380, 409-10 (2009). First, we review de novo whether punitive damages were available as a matter of law. Id. Next, we review whether the factual findings of willfulness or other aggravating factors were against the manifest weight of the evidence. Id. As to the ultimate decision to award punitive damages, we review for an abuse of discretion. Id. If the computation of punitive damages is challenged as excessive, we will not reverse unless "unless it is apparent that the award is the result of passion, partiality, or corruption." McQueen, 2022 IL 126666, ¶ 58.
¶ 129 Punitive damages are available for a breach of fiduciary duty. Tully v. McLean, 409 Ill.App.3d 659, 670, 948 N.E.2d 714, 729 (2011); Levy v. Markal Sales Corp., 268 Ill.App.3d 355, 379, 643 N.E.2d 1206, 1224 (1994). Defendant does not dispute that point and instead argues the award was improper under the facts of this case. As with her argument concerning prejudgment interest, much of her argument is based on her previous assertions concerning the compensatory damages award, which we have found lacks merit.
¶ 130 The trial court's finding defendant's that behavior was willful, based on her (1) admissions of wrongdoing, (2) lack of remorse, and (3) excuses for her conduct, was supported by the record. Thus, the trial court's findings of fact were not against the manifest weight of the evidence.
¶ 131 However, we note plaintiffs presented various formulas to the trial court for the award, some of which were based on the amount of compensatory damages. The record does not show whether the court's punitive damage award took the amount of compensatory damages into account. Accordingly, because we reverse the portion of compensatory damages for loss of investment income, we reverse and remand the punitive damages award for recalculation.
¶ 132 8. Attorney Fees
¶ 133 Defendant argues the attorney fee award was in error because the trial court wrongly admitted plaintiffs' exhibit A, showing the amount of fees over defendant's foundation objection. Defendant argues plaintiffs failed to present a foundation to show David was qualified to separate the trust fees from the fees resulting from other litigation.
¶ 134 Initially, we find defendant forfeited this argument by failing to cite any legal authority (other than for the standard of review) in support of her position. Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) requires an appellant's brief to contain an "argument" section, "which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on." "A contention that is supported by some argument but no authority does not meet the requirements of Rule 341 and is considered forfeited." Crull v. Sriratana, 388 Ill.App.3d 1036, 1045, 904 N.E.2d 1183, 1190-91 (2009). Further, "[c]itations to authority that set forth only general propositions of law and do not address the issues presented do not constitute relevant authority for purposes of Rule 341(h)(7)." Robinson v. Point One Toyota, Evanston, 2012 IL App (1st) 111889, ¶ 54, 984 N.E.2d 508. Here, defendant forfeited her argument that plaintiffs failed to establish a foundation. In any event, the trial court also did not abuse its discretion by allowing David's testimony regarding fees.
¶ 135 "In a judicial proceeding involving the administration of a trust, the court, as equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy." 760 ILCS 3/1004 (West 2020). "A party must lay the proper foundation before introducing a document into evidence." A.L. Dougherty Real Estate Management Co. v. Su Chin Tsai, 2017 IL App (1st) 161949, ¶ 32, 98 N.E.3d 504. "Proper authentication of a document requires the proponent to demonstrate that the document is what proponent claims it to be." Id.; see also Ill. R. Evid. 901 (eff. Sept. 17, 2019). "Authentication can be made by either direct or circumstantial evidence." A.L. Dougherty Real Estate Management Co., 2017 IL App (1st) 161949, ¶ 32. The proponent may establish the identity of a document through the testimony of a witness who has sufficient personal knowledge to show that a particular item is, in fact, what the proponent claims it to be. Id. We review the trial court's decision to admit or exclude evidence for an abuse of discretion. Id.
¶ 136 Here, David identified business records showing the amounts billed for fees and testified that, based on his personal knowledge, he separated out any billings related to other litigation. The trial court noted the documents were business records and found David's testimony sufficient. A reasonable trier of fact could conclude from David's testimony that the documents were authentic and were what plaintiffs claimed they were. See Id. ¶ 34.
¶ 137 We also do not find the award shocks the conscience, as defendant contends. Attorney fees were allowed by law and supported by the evidence.
¶ 138 C. Posthearing Motions
¶ 139 Defendant argues the trial court erred by denying her posthearing motions to strike, vacate the judgment, reopen proofs (or in the alternative provide a petition in mitigation), file a counterclaim, and strike plaintiffs' amended complaint.
¶ 140 1. Motion To Strike the Amended Complaint
¶ 141 Defendant argues the trial court erred by denying her motion to strike plaintiffs' amended complaint because it was not verified. "Under section 2-605 of the Civil Practice Law [citation], when a pleading is verified, every subsequent pleading must also be verified unless verification is excused by the court." Pinnacle Corp. v. Village of Lake in the Hills, 258 Ill.App.3d 205, 209, 630 N.E.2d 502, 506 (1994). "When a subsequent pleading is not verified, it is as if the unverified pleading was never filed; it must be disregarded." Id. However, the failure to object to an unverified pleading results in forfeiture of any argument concerning the lack of verification. See In re Application of County Collector, 295 Ill.App.3d 711, 718, 692 N.E.2d 1290, 1294 (1998).
¶ 142 Here, plaintiffs filed a verified complaint followed by an unverified amended complaint. However, defendant did not timely object and instead filed an answer and an amended answer. Thus, defendant forfeited any objection to plaintiffs' failure to file a verified amended complaint.
¶ 143 2. Motion To Reopen Proofs
¶ 144 Defendant argues the trial court abused its discretion by denying her motion to reopen proofs. She contends she offered sufficient evidence of false and incomplete testimony to support her motion. We disagree.
¶ 145" 'The denial of a motion to reopen proofs is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion.'" General Motors Acceptance Corp. v. Stoval, 374 Ill.App.3d 1064, 1077, 872 N.E.2d 91, 102 (2007) (quoting Chicago Transparent Products, Inc. v. American National Bank &Trust Co. of Chicago, 337 Ill.App.3d 931, 942, 788 N.E.2d 23, 32 (2002)). When ruling on a motion to reopen proofs, a trial court must consider (1) whether the moving party provided a reasonable excuse for failing to submit the evidence during trial, (2) whether the admission of the evidence would result in unfair surprise or prejudice to the nonmoving party, and (3) whether the evidence is of the utmost importance to the movant's case. In re Estate of Bennoon, 2014 IL App (1st) 122224, ¶ 55, 13 N.E.3d 236.
¶ 146 Related to the question of whether the movant has provided a reasonable excuse for failing to submit the additional evidence during trial is the question of whether failing to introduce the evidence in question at trial was due to inadvertence or was a calculated risk. See, e.g., People v. Mandarino, 2013 IL App (1st) 111772, ¶ 44, 994 N.E.2d 138. "If evidence offered for the first time in a posttrial motion could have been produced at an earlier time, the court may deny its introduction into evidence." Chicago Transparent Products, Inc. v. American National Bank &Trust Co. of Chicago, 337 Ill.App.3d 931, 942, 788 N.E.2d 23, 32 (2002).
¶ 147 Here, the additional evidence defendant sought to submit through the motion to reopen proofs could have been brought during the evidentiary hearing. None of the evidence was newly discovered or otherwise unavailable to defendant when the trial court was hearing the evidence and ruling on the issue. In the absence of a reasonable excuse for failing to submit the evidence during the proceedings, the trial court did not abuse its discretion in denying defendant's motion to reopen proofs. Stoval, 374 Ill.App.3d at 1077.
¶ 148 In further support of our rejection of defendant's motion to reopen the proofs, we reiterate what this court wrote over 30 years ago:
"Trial courts should not permit litigants to stand mute, lose a motion, and then frantically gather evidentiary material to show that the court erred in its ruling. Civil proceedings already suffer from far too many delays, and the interests of finality and efficiency require that the trial courts not consider such late-tendered evidentiary material, no matter what the contents thereof may be." (Emphasis in original.) Gardner v. Navistar International Transportation Corp., 213 Ill.App.3d 242, 248-49, 571 N.E.2d 1107, 1111 (1991).
¶ 149 More recently, this court concluded, in a case involving a claim that the trial court erred by partially denying a motion to reconsider, that the Gardner holding applies to arguments, not just evidence, explaining that "[a]ll of the policy reasons contained in the Gardner holding and cited approvingly by the many cases that have adopted that holding apply fully to arguments, as well as evidence." (Emphases in original.) Vantage Hospitality Group, Inc. v. Q Ill. Development, LLC, 2016 IL App (4th) 160271, ¶ 46, 71 N.E. 3d 1.
¶ 150 Defendant's argument is not only primarily based on evidence known to her at the time of the evidentiary hearing, but also on her interpretations of information actually presented at the hearing that she chose to not challenge at that time. For example, she labels here mere disagreements with the evidence that was presented as false testimony, half-truths, failed evidence, and speculation. However, as previously discussed, defendant admitted a number of the allegations and generally chose not to challenge the evidence at the hearing. Further, her position is largely a repackaging of her argument that the trial court's determination on the merits was against the manifest weight of the evidence, which we have already rejected. Thus, her motion does not show that she actually had newly discovered evidence to provide to the court or that she could prove her claim.
¶ 151 Defendant also attempts to excuse her failure to present or challenge evidence earlier based on the lack of competency of her trial counsel, noting her counsel at the evidentiary hearing performed very little cross-examination and presented little evidence. Defendant's argument is essentially that she received ineffective assistance of counsel. But, "[w]hile the right to the effective assistance of counsel is firmly grounded in our criminal jurisprudence [(see Stricklandv. Washington, 466 U.S. 668 (1984))], no such right exists on the civil side." Kalabogias v. Georgou, 254 Ill.App.3d 740, 750, 627 N.E.2d 51, 58 (1993).
¶ 152 Finally, we may also consider whether there are any additional cogent reasons to justify denying the request. See Dunahee v. Chenoa Welding &Fabrication, Inc., 273 Ill.App.3d 201, 210, 652 N.E.2d 438, 445 (1995). Here, plaintiffs would be unfairly prejudiced by allowing defendant to present additional testimony nearly 4 months after the evidentiary hearing, and nearly 12 weeks after defendant lost, because this would essentially give defendant the proverbial "second bite at the apple" and would cause plaintiffs to incur considerable expenses of time and money to relitigate a case they had already won. This alone provides ample support for the trial court's decision to deny the motion. See Chicago Transparent Products, Inc., 337 Ill.App.3d at 942. Accordingly, defendant has failed to convince us the trial court's ruling was arbitrary, fanciful, or unreasonable such that the court's denial of the motion to reopen the proofs was an abuse of discretion.
¶ 153 3. Motion To File a Counterclaim
¶ 154 Defendant also challenges the denial of her motion for leave to file a counterclaim. The crux of defendant's argument is the same as the argument she presents regarding her motion to reopen the proofs, which, as previously discussed, lacks merit. Thus, for the reasons already stated, the trial court did not abuse its discretion by denying that motion.
¶ 155 4. Motion To Strike Lestikow 's Deposition
¶ 156 Defendant also sought to strike Lestikow's deposition. On appeal, she argues (1) she did not consent to waiver of the attorney-client privilege and (2) the trial court failed to conduct an inquiry into the matter.
¶ 157 The attorney-client privilege, which protects both the client's communications to the attorney and the attorney's advice to the client, is one of the oldest privileges for confidential communications in common law. People v. Radojcic, 2013 IL 114197, ¶¶ 39-40, 998 N.E.2d 1212. The privilege's purpose is to "promote full and frank communication between the client and his or her attorney, without the fear that confidential information will be disseminated to others," which in turn promotes sound legal advice and advocacy. Id. ¶ 39. However, "Illinois also has a general public policy of strongly encouraging disclosure of information, with a view to ascertaining the truth, which is essential to the proper disposition of a lawsuit," such that the "attorney-client privilege is to be strictly confined within its narrowest bounds." Robert R. McCormick Foundation v. Arthur J. Gallagher Risk Management Services, Inc., 2019 IL 123936, ¶ 20, 158 N.E.3d 219.
¶ 158 The party asserting the attorney-client privilege has the burden of showing that it applies. Margules v. Beckstedt, 2019 IL App (1st) 190012, ¶ 21,142 N.E.3d 325. We review de novo the applicability of the attorney-client privilege. Id. ¶ 19 The failure to object to the introduction of evidence because it is subject to the attorney-client privilege forfeits the issue on appeal. Dempsey v. Sternik, 147 Ill.App.3d 571, 580, 498 N.E.2d 310, 316 (1986).
¶ 159 We first note that defendant sought to strike Lestikow's deposition in its entirety. But Lestikow initially jointly represented defendant and Richard, and much of Lestikow's deposition was for the purpose of obtaining documents. Many of those documents and events Lestikow testified about arose during the time of joint representation, and thus defendant would not be entitled to assert privilege over matters regarding Richard.
¶ 160 Concerning any events or documents arising after the joint representation allegedly ended, defendant has not specified individual items of concern. Most important, she did not object at all to the evidence either during the deposition or at the evidentiary hearing. Thus, she forfeited the issue for purposes of appeal.
¶ 161 Defendant points to Illinois Rule of Evidence 502 (eff. Jan. 1, 2013), concerning attorney-client privilege and work product and various rules of professional conduct, to argue her counsel was incompetent in failing to assert the privilege or the trial court should have sua sponte inquired as to her waiver of the privilege. However, nothing in those sources requires the trial court to assert the privilege for a litigant or conduct a sua sponte inquiry into the matter. Additionally, as previously noted, a claim of ineffective assistance of counsel is not available in a civil action. Kalabogias, 254 Ill.App.3d at 750.
¶ 162 5. Motion for Sanctions
¶ 163 Defendant also appeals the denial of her motion for sanctions based on the "false nature of the [a]mended [c]omplaint." Given we find no merit to the majority of her arguments, particularly those involving the factual allegations of breach of fiduciary duties, the trial court did not abuse its discretion in denying the motion for sanctions.
¶ 164 III. CONCLUSION
¶ 165 In summary, we observe the evidence and issues in this case were at times unwieldy, and we thank the trial court for its thoughtful and careful consideration of the issues. With one minor exception, the trial court's determinations of the merits of the case and calculations of damages were not against the manifest weight of the evidence, and its denial of defendant's posthearing motions was not an abuse of discretion. Accordingly, we affirm the trial court in all respects except for the award of $11,000 for loss of investment income, which we reverse. Because that award affects the calculation of prejudgment interest and may have affected the amount of the punitive damages award, we remand for recalculation of those amounts.
¶ 166 Affirmed in part and reversed in part; cause remanded.