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                              Appellate Court                           Date: 2018.02.08
                                                                        13:00:01 -06'00'




                  Morrow v. Pappas, 2017 IL App (3d) 160393



Appellate Court   STEVE MORROW, ERIC CHAMBLISS, REBECCA McGOWEN,
Caption           GERARD BEACH, and MIDWEST GREYHOUND ADOPTION,
                  INC., Plaintiffs, v. RINA PAPPAS, SHANE BURROWS, KEVIN
                  DENNIS STEWARD, THE FIRST NATIONAL BANK OF
                  OTTAWA, and JOHN CANTLIN, Defendants (Steve Morrow, Eric
                  Chambliss, Rebecca McGowen, and Gerald Beach, Plaintiffs-
                  Appellants; Rina Pappas, Shane Burrows, Kevin Dennis Steward, and
                  The First National Bank of Ottawa, Defendants-Appellees).



District & No.    Third District
                  Docket No. 3-16-0393



Filed             October 30, 3017



Decision Under    Appeal from the Circuit Court of La Salle County, No. 13-L-118; the
Review            Hon. Troy Holland, Judge, presiding.



Judgment          Affirmed.


Counsel on        Channing B. Hesse and Amy G. Grogan, of Garelli Grogan Hesse &
Appeal            Hauert, of Elmhurst for appellants.

                  William W.P. Atkins and Robert J. Hills, of Johnson, Bunce & Noble,
                  P.C., of Peoria, for appellee Shane Burrows.
                               Scott J. Schweickert, of Schweickert & Ganassin LLP, of Peru, for
                               appellee Rina Pappas.

                               Michael L. Resis and Ellen L. Green of SmithAmundsen LLC, of
                               Chicago, for other appellees.



     Panel                     JUSTICE O’BRIEN delivered the judgment of the court, with
                               opinion.
                               Justice Lytton concurred in the judgment and opinion.
                               Presiding Justice Holdridge dissented, with opinion.


                                                 OPINION

¶1         After the trial court’s granting of defendants’ motions for summary judgment, plaintiffs
       appeal, arguing several points of error by the trial court, namely (1) granting defendants’
       motions for summary judgment; (2) the trial court’s discovery rulings involving a denial of
       plaintiffs’ motion to compel, subpoenaed cell phone records, the entry of a protective order,
       and the trial court’s failure to apply the Dead Man’s Act; (3) the trial court’s dismissal of
       plaintiffs’ claims for conspiracy and fraud; and (4) the trial court’s refusal to issue sanctions to
       defendants. We affirm the trial court’s ruling on all issues raised.

¶2                                              FACTS
¶3         Decedent Dorelle Denman executed a will on March 27, 2012 (March Will). She named
       plaintiffs Steve Morrow, Eric Chambliss, Rebecca McGowen, Gerard Beach, and Midwest
       Greyhound Adoption, Inc. (Midwest), as beneficiaries. Defendant Shane Burrows was also
       named as a beneficiary. John Cantlin, the attorney who drafted the will, was identified as
       executor of the March Will. Cantlin also acted as Denman’s power of attorney over property.
       Denman executed a subsequent will on September 13, 2012 (September Will). That will
       removed the prior beneficiaries Morrow, Chambliss, McGowen, Beach, and Midwest, and
       instead named Rina Pappas and Burrows as beneficiaries, and appointed the First National
       Bank of Ottawa (FNB) as executor under the September Will. Kevin Steward, a trust officer of
       FNB, managed all of Denman’s business affairs. Burrows is the only defendant who was
       named under both the March Will and the September Will.
¶4         Denman owned and operated several businesses: Willows Hotel and two bed and breakfast
       establishments, Landers House and Bear Creek Lodge. Pappas was an employee of Denman’s
       and managed the Bistro, a restaurant located in Willows Hotel. On May 12, 2012, Denman fell
       and broke her hip and was admitted to St. Margaret’s Hospital. Her health worsened, and she
       was transferred to Manor Court on May 18, 2012. She remained at Manor Court for a month,
       until she was stable enough to return home. She then returned to the hospital on June 27, 2012,
       after being found nearly unresponsive at her home. Denman was transferred between hospitals



                                                    -2-
     and rehabilitation facilities for a period of time until August 2012. On August 15, 2012,
     Denman met with Cantlin and Steward to talk about her business affairs generally.
¶5       On August 29, 2012, while at Illinois Valley Community Hospital, Denman instructed a
     nurse to contact Steward. Denman spoke with Steward over the phone and advised him of
     several changes she wanted to make to her will. Later that same day, Steward, Cantlin, and
     another attorney, Joseph Cantlin, met with Denman to discuss the changes that she wanted to
     make to her will. They discussed her properties, her debts, and the extent that her property
     should be divided among Pappas and Burrows. Denman did not indicate to the Cantlins or to
     Steward that she was being pressured to change her will, and she did not indicate that she was
     influenced by anyone to make changes to her will. Cantlin testified that during this meeting she
     appeared lucid, competent, and rational and knew exactly what she wanted to do regarding her
     estate plan. After discussing these changes, Cantlin advised Denman that they would redraft
     the will and bring it back for execution on the next day. However, her health condition
     worsened, and the new draft was not immediately executed.
¶6       On September 13, 2012, Denman contacted Steward and told him that she wanted to get
     her affairs in order and sign her new will. The Cantlins were not available to preside over the
     execution of the revised will. Instead, Steward retrieved the revised will from Cantlin’s office
     and took it to Denman. The same day, Dr. Shawn Bailey met with Denman to discuss
     executing a do not resuscitate order (DNR). In his deposition, Bailey testified he met with
     Denman for a period between 5 to 10 minutes, and Bailey further testified that she was alert,
     competent, aware of her physical health, and was able to understand and articulate her wishes
     about her end of life care. On September 13, 2012, a DNR was executed, signed by Denman
     and Bailey. In his deposition testimony, Bailey explained that Denman had emphysema and
     chronic obstructive pulmonary disease (COPD), which could lead to instances of hypoxia and
     encephalopathy (confusion from lack of oxygen). Descriptions of “delirium” or “altered
     mental state” in Denman’s medical records would be similar to a notation of encephalopathy.
     Once Denman received oxygen, her condition would improve. She did not exhibit delirium,
     dementia, or altered mental status when he saw her. In his professional opinion, Denman was
     competent and capable of making decisions on September 13, 2012.
¶7       Shortly after the DNR was executed, Steward arrived and went to Denman’s room where
     he went over the substantive provisions of the will and the changes that were implemented.
     Denman expressed to Steward that the changes reflected what she desired. Cantlin had
     instructed Steward on how to review and execute the new will with Denman. Two witnesses,
     Mark Seidel and Vicki Gomez, were then brought into the room to witness the execution of the
     will. Steward then asked Denman a series of questions in front of the witnesses to assess her
     understanding and determined that Denman had testamentary capacity to sign the will. Witness
     Seidel, when presented with this lawsuit, attested that his authentic signature appears on
     Denman’s September Will. Seidel attested that he has no recollection of witnessing the will.
     He testified, however, that he was at the Manor Court facility visiting family and friends and
     that he takes medication that sometimes causes memory problems. The other witness, Gomez,
     testified that Denman had no difficulty in understanding the execution of the will, that she gave
     appropriate answers, and understood what was happening. On September 13, 2012, the will
     was signed by Denman and witnessed. On September 25, 2012, Denman passed away, and the
     September Will was filed in the probate court on September 26, 2012.



                                                 -3-
¶8          Plaintiffs filed their original complaint on September 24, 2013. They alleged intentional
       interference with testamentary expectancy, conspiracy, fraud, malpractice, and breach of
       fiduciary duty. They filed an amended complaint on October 27, 2013, and a second amended
       complaint on January 29, 2014. The second amended complaint involved eight counts: counts
       I-IV involved claims of intentional interference with testamentary expectancy (count I v.
       Pappas, count II v. Burrows, count III v. Cantlin, count IV v. Steward and FNB). Count V
       included a claim of conspiracy to commit intentional interference with testamentary
       expectancy, and count VI included a claim for fraud against all the defendants. In count VII, a
       claim for legal malpractice was alleged against Cantlin, and count VIII alleged a breach of
       fiduciary duty against Steward and FNB. All defendants filed motions to dismiss the
       complaint. On April 28, 2014, the trial court granted motions to dismiss the conspiracy (V),
       fraud (VI), and breach of fiduciary duty (VIII) counts. It denied the motions to dismiss the
       other counts (I-IV, VII). The plaintiffs were granted 28 days to replead.
¶9          In the third amended complaint, the plaintiffs maintained their counts of intentional
       interference with testamentary expectancy against Pappas (count I), Burrows (count II),
       Cantlin (count III), and Steward and FNB (count IV) but added a request for punitive damages
       in each of those counts. Counts V, VI, and VIII, which had been previously dismissed by the
       trial court, remained in the complaint but were in strike-through format with no new
       allegations concerning those claims. The only changes made to the new complaint sought
       punitive damages and omitted prior claims for attorney fees. In June 2014, all defendants filed
       motions for dismissal pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS
       5/2-615 (West 2014)). On July 31, 2014, the trial court entered an order denying all motions
       for dismissal as to counts I-IV.
¶ 10        As discovery ensued, answers were filed and depositions took place. Discovery was served
       on defendants, and plaintiffs filed a motion to compel directed against Steward and FNB,
       arguing that they improperly claimed attorney-client privilege in refusing to comply with their
       discovery requests for information regarding Denman’s estate. On June 18, 2015, the trial
       court denied plaintiffs’ motion to compel and motion for sanctions against FNB and Steward.
       FNB and Steward’s motion to quash a subpoena for Steward’s personal cell phone records was
       “denied but” was “modified” as follows: the records were to be reviewed in camera and the
       parties were to “enter into a protective order to ensure the privacy of individuals is
       maintained.”
¶ 11        On July 10, 2015, the trial court granted Steward’s motion for a protective order without
       modification. Thereafter, the defendants each moved for summary judgment. Attached to
       Steward and FNB’s motion were the deposition testimonies of Steward, Cantlin, Bailey,
       Gomez, and Seidel. Cantlin’s motion for summary judgment as to counts III (intentional
       interference) and VII (legal malpractice) was granted on March 21, 2016. On June 10, 2016,
       the trial court granted the remaining defendants’ motions for summary judgment. The
       plaintiffs moved to reconsider. The trial court denied the motion, and the plaintiffs appealed.
       Midwest was not involved in the trial court and is not a part of the appeal. Cantlin is also not a
       party to the appeal.




                                                   -4-
¶ 12                                              ANALYSIS
¶ 13                       A. Tortious Interference With Testamentary Capacity
¶ 14        Plaintiffs request that this court reverse the trial court’s decision to grant defendants’
       motions for summary judgment. Plaintiffs contend that summary judgment was improper
       because there were issues of material fact as to their claims for tortious interference of their
       testamentary expectancy. Pappas argues that the plaintiffs do not have any knowledge of
       tortious conduct by her. Burrows argues that the plaintiffs cannot prove their expectation
       existed under the March Will because none of the plaintiffs were aware that they stood to
       inherit under the March Will. Steward and FNB contend that plaintiffs are unable to establish
       an expectancy under the valid September Will that revoked the March Will and that, because
       plaintiffs failed to establish an element of their claim, summary judgment was proper.
¶ 15        Summary judgment should be granted when the pleadings, depositions, and admissions on
       file, together with the affidavits, if any, show that there is no genuine issue as to any material
       fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS
       5/2-1005(c) (West 2016). Summary judgment is only proper when the resolution of a case
       depends on a question of law and should be awarded to the moving party when free of doubt.
       In re Estate of Hoover, 155 Ill. 2d 402, 410 (1993). While considering granting the motion, all
       evidence is construed strictly against the moving party and in favor of the nonmovant. Id. at
       410-11. The standard of review on appeal for the grant or denial of a motion for summary
       judgment is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90,
       102 (1992).
¶ 16        The “ ‘widely recognized tort’ ” of tortious interference with testamentary expectancy does
       not contest the validity of the will; it is a personal claim against an individual tortfeasor. In re
       Estate of Ellis, 236 Ill. 2d 45, 52 (2009). A plaintiff must establish the following elements: (1)
       the existence of an expectancy; (2) defendant’s intentional interference with the expectancy;
       (3) conduct that is tortious in itself, such as fraud, duress, or undue influence; (4) a reasonable
       certainty that the expectancy would have been realized but for the interference; and (5)
       damages. Id. To constitute undue influence, it must be that such “[f]alse or misleading
       representations concerning the character of another may be so connected with the execution of
       the will that the allegation that such misrepresentations were made to the testator may present
       triable fact questions on the issue of undue influence.” Hoover, 155 Ill. 2d at 412. A person is
       subject to liability for another’s loss, where, by tortious means such as fraud or duress, the
       person intentionally prevents another from receiving an inheritance or gift from a third person
       that the person would have otherwise received. Ellis, 236 Ill. 2d at 52.

¶ 17                                     Existence of an Expectancy
¶ 18        With respect to the first element, the existence of an expectancy, the plaintiffs contend that
       this was satisfied by the existence of the March Will because the “allegation that a prior will
       existed is a sufficient allegation of an expectancy.” In re Estate of DiMatteo, 2013 IL App (1st)
       122948, ¶ 80. In DiMatteo, the appeal was brought after a section 2-615 dismissal. The court
       determined that because the plaintiff pled the allegation that a prior will existed and that the
       respondent and named beneficiary of the second challenged will knew how to “change the will
       of a person” and that he “succeeded in convincing DiMatteo to change his will,” the cause of
       action was successfully pled. (Emphases omitted.) Id. In an additional decision from the
       Illinois Supreme Court in DeHart v. DeHart, the court there also acknowledged that an

                                                    -5-
       existence of expectancy is sufficiently pled when a plaintiff alleges the existence of a prior
       will. 2013 IL 114137, ¶ 40.
¶ 19       This case’s procedural posture differs greatly from DiMatteo and DeHart. Both DiMatteo
       and DeHart alleged tortious interference with testamentary expectancy in addition to filing a
       timely will contest. Here, the plaintiffs did not file a will contest to effectively challenge the
       September Will. As a general rule, any claims attacking the validity of a will, including undue
       influence, must be filed within six months of the will being admitted to probate. 755 ILCS
       5/8-1 (West 2012). This rule also operates to prohibit the filing of a tort claim like the one filed
       by the plaintiffs, unless the plaintiffs can demonstrate that the probate proceedings were not
       available to them due to the tortious conduct of the defendants and that the probate proceedings
       would not have provided them with complete relief. “If a challenger to a will fails to initiate a
       direct proceeding to contest the will within the six-month statutory time period, the validity of
       the will is established for all purposes.” Ellis, 236 Ill. 2d at 50.
¶ 20       In Ellis, the plaintiff asserted that a will contest was not filed because the plaintiff was
       unaware that it was named a beneficiary under the prior will. Id. at 55-56. The trial court
       allowed the tort of tortious interference with testamentary expectancy to proceed even though a
       will contest was not filed within the statutorily prescribed time limits because the plaintiff did
       not have a fair opportunity to contest the will. Id. at 55. The court determined there was
       fraudulent conduct on the part of the respondent that prevented the plaintiff from filing a will
       contest. Id. at 55-56. The trial court also found the defendant’s tortious conduct had caused the
       decedent to transfer property to the defendant prior to death and therefore a will contest would
       not have afforded the plaintiff with sufficient relief because the remedy available in probate
       does not extend to inter vivos transfers of property. Id. at 56.
¶ 21       The plaintiffs here try to analogize Ellis, arguing they did not file a will contest because
       they were not aware that they were named beneficiaries under the March Will and that the
       statutory limitations on the will contest should not preclude them from asserting their
       expectancy under the March Will. Under Ellis, in order for the plaintiffs to proceed with their
       tort claim after the six-month period to contest the September Will expired, they must
       demonstrate that the will contest was made unavailable to them. In order to show that the will
       contest was unavailable to them, the plaintiffs need to show that the defendants’ tortious
       conduct, such as inducing the decedent to change her will, was not discovered until after the
       expiration of the time to contest the validity of the will. In Ellis, the tortious conduct was
       discovered after the six-month deadline had passed, which prevented the plaintiffs from
       contesting the will in probate, but was sufficient to sustain the tort action. Thus, the expiration
       of the six-month deadline for will contests did not prevent plaintiffs from bringing this action.
       Instead, the plaintiffs failed to show any tortious conduct on part of the defendants to
       intentionally interfere with the plaintiffs’ expectancy. Extensive discovery was conducted in
       this case. After review of the discovery responses and deposition transcripts, the plaintiffs have
       not shown that any of the defendants knew that the March Will existed or that the March Will
       devised certain property to the plaintiffs. At most, the record supports an inference that Pappas
       was aware of a “new will,” but nothing suggests she was aware of its contents or that she stood
       to inherit under the will. Further, Pappas did not have any expectation that Denman would be
       naming her as a beneficiary under the September Will. Pappas was not present at either of the
       August meetings with attorneys Cantlin and Steward, and she also was not present at the
       execution of the will. As to Burrows, all plaintiffs admitted in discovery that they had no

                                                    -6-
       knowledge of Burrows exerting influence on Denman with intention to change her will or to
       persuade Denman to change her estate plan to his benefit. Thus, there is no evidence in the
       record to suggest that any of the defendants knew about the contents of the March Will or that
       any of the defendants knew they stood to inherit under the March Will, and no evidence to
       suggest that the defendants acted fraudulently in concealing the March Will from the plaintiffs
       or that they acted in the direction, production, or execution of the will to persuade Denman to
       name them as beneficiaries and disinherit the plaintiffs. The plaintiffs were not prevented from
       contesting the will because the six-month period had expired due to tortious conduct by the
       defendants. Accordingly, Ellis does not aid the plaintiffs’ cause.
¶ 22       Because the first element of the existence of the expectancy is dispositive of the issue of
       tortious interference with testamentary expectancy, no further analysis under the tort action is
       necessary. We find the plaintiffs have not asserted an expectancy and therefore, summary
       judgment entered in favor of the defendants on those counts was properly granted.

¶ 23                               B. The Trial Court’s Evidentiary Rulings
¶ 24                       1. Trial Court’s Denial of Plaintiffs’ Motion to Compel
¶ 25       On June 18, 2015, the trial court denied plaintiffs’ motion to compel production of
       responses to interrogatories and requests to produce served upon Cantlin, Steward, and FNB.
       Steward and FNB answered requests for interrogatories and requests to produce, but objected
       to filing certain responses and producing certain documents on the basis of attorney-client
       privilege. Steward and FNB contended that they were acting as agents of both Denman and
       Cantlin. An in camera review was conducted of the documents and the privilege logs provided
       by Steward and FNB. The trial court determined that the attorney-client privilege applied to the
       documents. Plaintiffs filed a motion to reconsider the June 18, 2015, ruling contending that an
       exception to the attorney-client privilege applies; specifically, when issues of undue influence
       and lack of testamentary capacity are alleged, the attorney-client privilege is a temporary
       privilege that only exists during the lifetime of the client despite the fact that no will contest
       was timely filed.
¶ 26       The trial court denied plaintiffs’ motion to reconsider on the basis that nothing in the case
       law suggests that the will-contest exception to attorney-client privilege should exist in
       plaintiffs’ tort claims. The trial court stated that once the September Will was admitted with no
       contest filed, it was established for all purposes, and the rationale behind the exception to the
       attorney-client privilege does not apply in this case because the validity of the will was
       established for all purposes and the distribution scheme that decedent intended to go into effect
       was actually going into effect. On this appeal, plaintiffs contend that the trial court erred when
       it determined that the exception to the attorney-client privilege did not apply to this case.
¶ 27       To compel an attorney to disclose client information, the movant must first establish that
       the information is not privileged. Adler v. Greenfield, 2013 IL App (1st) 121066, ¶ 42 (citing
       In re Marriage of Decker, 153 Ill. 2d 298, 321 (1992)). Information disclosed to a third party is
       not privileged, unless the third party is acting as an agent of the attorney or the client. Id. ¶ 44.
       Attorney-client privilege generally survives the client’s death, however, the privilege is only a
       temporary one when presented in cases involving wills. DeHart, 2013 IL 114137 ¶ 69. Where
       an attorney prepares a will for a client and witnesses the same, the privilege only exists during
       the lifetime of the client. Id. The rationale behind this limited exception to the privilege is that
       a decedent would (if one could ask him) forgo the privilege so that the distribution scheme he

                                                     -7-
       intended can be given effect. Id. Under the limited exception concerning will contests, a
       “plaintiff need only make an initial evidentiary showing that he is an heir or next of kin or that
       he was a recipient under a prior will” to establish he is an interested party and not subject to the
       privilege. Id. ¶ 73. Under the testamentary exception to attorney-client privilege, the privilege
       does not apply to issues between parties that are claiming under the will. Lamb v. Lamb, 124
       Ill. App. 3d 687, 693 (1984). A trial court’s decision whether to allow evidence that was not
       disclosed during pretrial discovery or whether to impose a discovery sanction is reviewed for
       an abuse of discretion. In re K.I., 2016 IL App (3d) 160010, ¶ 56. The question of whether the
       attorney-client privilege prohibits the disclosure of sought-after information is reviewed
       de novo. Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶ 65.
¶ 28        Neither of the parties contest the existence of an agency between Denman and Steward and
       FNB and Cantlin. The plaintiffs assert instead that the limited exception to the attorney-client
       privilege exists outside of will contest cases. When the trial court first determined that the
       privilege applied, it analogized this case to Adler and determined that because the agency
       relationship was similar to the agency relationship analyzed in Adler, and because the trial
       court in this case also conducted an in camera review, which the court in Adler did not, the
       documents fall under the attorney-client privilege. The Adler court expressly stated that “the
       instant action is not a will contest. Accordingly, any communication between [the decedent],
       or her agents, and [her attorney] remains privileged.” Adler, 2013 IL App (1st) 121066, ¶ 63.
       Plaintiffs then, in their motion to reconsider, relied upon DeHart and asked that the trial court
       interpret the underlying reasoning in DeHart to extend the protections of the attorney-client
       privilege outside of will contests. We agree with the trial court’s rejection of their request.
¶ 29        Here, it is undisputed that the plaintiffs failed to contest the September Will. This action
       was not brought to contest the validity of the will, but instead was brought as a tort claim,
       asserting an intentional tortious interference with testamentary expectancy against the
       defendants. The case in DeHart was “indisputably” a will contest. DeHart, 2013 IL 114137,
       ¶ 73. There, the plaintiff had made his initial evidentiary showing that he was a potential heir
       and an “interested person.” Id. The court determined that the plaintiff could succeed in making
       out a prima facie case that the privilege did not apply because it was subject to the will contest
       exception. Nothing in the DeHart case supports the plaintiffs’ contention that the exception
       applies outside of will contest cases.
¶ 30        The plaintiffs cite this court’s decision in Eizenga v. Unity Christian School of Fulton,
       Illinois, 2016 IL App (3d) 150519, when they posit that the exception to the privilege applies to
       non-will contest cases. Eizenga held that the testamentary exception to the attorney-client
       privilege also applies to inter vivos trusts. Id. ¶ 29. This court determined that notes and other
       documents of an attorney who drafted a contested trust were not privileged. Id. However, in the
       instant case, we do not have an instrument that is being contested. The September Will was
       established for all purposes, effectively revoking the March Will. In Eizenga, the trust
       document was being contested. Even though this court determined that an exception to the
       attorney-client privilege applied outside of a will contest, the exception was also being applied
       narrowly to a contested inter vivos trust. In the instant case, there is no contest to the
       distribution scheme that Denman executed in her September Will. In the absence of such a
       contest to an instrument, we will not apply the narrow exception to the attorney-client
       privilege.



                                                    -8-
¶ 31               2. Trial Court’s Ruling on Number of Interrogatories Served on Defendants
¶ 32        On appeal, plaintiffs contend that the trial court denied the plaintiffs the right to propound
       30 interrogatories each, in effect allowing the plaintiffs a total of 150 interrogatories
       collectively. Specifically, plaintiffs contend that the court denied them the right to each
       propound 30 interrogatories. Illinois Supreme Court Rule 213(c) provides that “a party shall
       not serve more than 30 interrogatories, including sub-parts, on any other party except upon
       agreement of the parties or leave of court granted upon a showing of good cause.” Ill. S. Ct. R.
       213(c) (eff. Jan. 1, 2007). The committee comment to this subsection provides, “Because of
       widespread complaints that some attorneys engage in the practice of submitting needless,
       repetitious, and burdensome interrogatories, paragraph (c) limits the number of all
       interrogatories, regardless of when propounded, to 30 (including subparts), unless ‘good
       cause’ requires a greater number.” Ill. S. Ct. R. 213, Committee Comments (revised June 1,
       1995). An issue involving Rule 213 should be construed the same as a statute. Vision Point of
       Sale, Inc. v. Haas, 226 Ill. 2d 334, 342 (2007). Thus, a Rule 213 issue is reviewed de novo.
       Schweickert v. AG Services of America, Inc., 355 Ill. App. 3d 439, 442 (2005).
¶ 33        The trial court addressed plaintiffs’ argument concerning the amount of interrogatories
       allowed to be propounded and determined that despite plaintiffs’ citing case law that each
       party may file 30 interrogatories, the court “[did] not find that Defendants Steward/FNB
       having to answer the interrogatories as submitted would be unduly burdensome.” Further, the
       trial court ordered Steward and FNB to provide a written response to the requests. Plaintiffs
       have not established that Steward and FNB have failed to comply with this order. There was no
       error denying the plaintiffs the right to propound 30 interrogatories each because the trial court
       ruled in favor of their request.

¶ 34                                3. Subpoenaed Cell Phone Records
¶ 35       During discovery, plaintiffs subpoenaed Steward’s personal cell phone records, and he
       subsequently attempted to quash the subpoena. The trial court denied the motion to quash, but
       instead granted the parties a protective order stating that (1) the personal cell phone records of
       Steward could not be used outside of the course of litigation in this case, (2) plaintiffs would
       not be permitted to contact any of the numbers disclosed in the subpoena that belong to bank
       customers and/or Steward’s family or friends, (3) plaintiffs were permitted to contact any other
       telephone numbers disclosed by the subpoena who have knowledge of the facts of this case,
       and (4) in the event that there were persons who had knowledge, but were bank customers or
       relatives and friends of Steward, plaintiffs would obtain court permission, for good cause
       shown, before contacting those persons.
¶ 36       Illinois Supreme Court Rule 201(b)(1) (eff. July 1, 2014) requires full disclosure of matters
       relevant to the subject matter in the case. A trial court has the authority to make a protective
       order on its own initiative or on motion of a party or witness, to regulate discovery to “prevent
       unreasonable annoyance, expense, embarrassment, disadvantage or oppression.” Ill. S. Ct. R.
       201(c)(1) (eff. July 1, 2014). Protective orders afford litigants the opportunity to prevent public
       disclosure of private information tendered in discovery that would be damaging to a party’s
       privacy. Kaull v. Kaull, 2014 IL App (2d) 130175, ¶ 52. As noted above, a trial court’s
       decision whether to allow evidence that was not disclosed during pretrial discovery is reviewed
       for an abuse of discretion. In re K.I., 2016 IL App (3d) 160010, ¶ 56.


                                                    -9-
¶ 37       Plaintiffs sought to obtain the information from Steward’s private cell phone to show that
       defendants Steward and Pappas were in constant communication concerning Denman’s estate
       planning affairs. The numbers on the personal cell phone contained work clients of Steward, as
       well as employees of the bank. Notwithstanding the entry of the order, plaintiffs already
       obtained evidence concerning communications made about Denman’s estate planning through
       discovery, as evidenced by the screenshots of text messages contained in the records and
       various e-mails and as indicated by the plaintiffs’ briefs. Plaintiffs were aware of phone
       records that revealed numerous phone calls between the defendants, as well as the length of
       some of those phone conversations. Plaintiffs were also aware of text messaging conversations
       between Pappas and Steward on September 11, 2012, and also that five separate phone
       conversations occurred between Steward and Pappas. Plaintiffs were already entitled to
       information via phone records concerning Steward and Pappas, and thus, subpoenaing the
       records from his personal cell phone containing private information concerning the bank and
       its clients was unreasonable. The numbers sought after by the plaintiffs included those of
       Steward and FNB’s customers and were not in any way relevant to the issues in the plaintiffs’
       complaint. The plaintiffs were still able to access the phone records for calls relevant to
       Denman’s estate planning. We find the trial court did not err in issuing the protective order.

¶ 38                           4. Trial Court’s Application of Dead Man’s Act
¶ 39        Plaintiffs argue that the trial court was incorrect in its application of the Dead Man’s Act.
       735 ILCS 5/8-201 (West 2016). Plaintiffs requested that the trial court apply the statute to bar
       deposition testimony by the defendants on the basis that Cantlin’s conversations should be
       stricken because they concern conversations with the decedent and an adverse party to the
       lawsuit. The Dead Man’s Act provides, in relevant part: “In the trial of any action in which any
       party sues or defends as the representative of a deceased person or person under a legal
       disability, no adverse party or person directly interested in the action shall be allowed to testify
       on his or her own behalf to any conversation with the deceased or person under legal disability
       or to any event which took place in the presence of the deceased or person under legal
       disability ***.” Id. The Dead Man’s Act bars testimony from adverse parties or persons
       directly interested in the lawsuit where the representative of the deceased person sues or
       defends on behalf of the decedent. In re Estate of Sewart, 274 Ill. App. 3d 298, 308 (1995).
       Application of the Dead Man’s Act is an evidentiary matter and will be reviewed for an abuse
       of discretion. Gunn v. Sobucki, 352 Ill. App. 3d 785, 787 (2004).
¶ 40        The trial court correctly found that the plaintiffs lacked standing to object under the Dead
       Man’s Act. Plaintiffs cannot seek protection under the Dead Man’s Act because they do not
       fall within the definition of “representative.” “ ‘Representative’ ” is defined under the statute
       as: “an executor, administrator, heir or legatee of a deceased person and any guardian or trustee
       of any such heir or legatee, or a guardian or guardian ad litem for a person under legal
       disability.” 735 ILCS 5/8-201 (West 2016). Here, plaintiffs are not executors, administrators,
       heirs, or legatees of Denman. The September Will, as previously noted, was established for all
       purposes. Plaintiffs have not offered any case law to show when the Dead Man’s Act extends
       to legatees under a prior revoked will. Under the Dead Man’s Act, conversations between the
       decedent and interested persons are prohibited. Kelley v. First State Bank of Princeton, 81 Ill.
       App. 3d 402, 416 (1980). Steward acted as Denman’s attorney’s agent and trust officer of the
       bank; he was not an “ ‘interested person’ ” within the meaning of the Dead Man’s Act. 735

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       ILCS 5/8-201 (West 2016). We find that the trial court did not err in refusing to apply the Dead
       Man’s Act.

¶ 41                            C. Dismissal of Conspiracy and Fraud Counts
¶ 42       Plaintiffs assert that the trial court erred when it dismissed counts V and VI of their second
       amended complaint. The trial court dismissed the counts without prejudice on April 28, 2014,
       and plaintiffs were granted leave to replead. Plaintiffs’ third amended complaint included the
       same exact counts that appeared in the second amended complaint, however, they were in a
       red-lined, strike-through format with no additional allegations or facts pled. The trial court
       further clarified in its July 31, 2014, order, that the counts for conspiracy and fraud of the third
       amended complaint were stricken without prejudice. An amended pleading, complete in itself,
       supersedes the pleading that it replaces and the earlier pleading ceases to be a part of the record
       for most purposes, being in effect abandoned and withdrawn. Foxcroft Townhome Owners
       Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153-54 (1983). A trial court’s section 2-615
       dismissal is reviewed de novo. Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003). When the
       plaintiffs failed to replead the conspiracy and fraud counts in the third amended complaint,
       they ceased to be part of the plaintiffs’ complaint. The trial court did not err when it granted the
       defendants’ motion for dismissal, and it did not err when it denied plaintiffs’ motion to strike
       the defendants motion for dismissal.

¶ 43                                         D. Punitive Damages
¶ 44       Plaintiffs assert that they sought leave to amend their complaint to include punitive
       damages. Plaintiffs allege that punitive damages are appropriate for each count and should
       have been allowed in their prayer for relief. A trial court’s ruling on a plaintiff’s motion to
       amend to add punitive damages is reviewed for an abuse of discretion. Holzrichter v. Yorath,
       2013 IL App (1st) 110287, ¶ 142. The record does not support the plaintiffs were denied leave
       to amend to add punitive damages. On April 28, 2014, the trial court ruled that “[p]laintiffs
       may include a prayer for relief which includes punitive damages” after dismissing counts V
       (conspiracy), VI (fraud), and VIII (breach of fiduciary duty). As noted before, plaintiffs did not
       incorporate counts V and VI into the third amended complaint and they were appropriately
       stricken by the trial court in its July 31, 2014, order for failure to replead. As to the remaining
       counts in the third amended complaint, counts I-IV did in fact include a request for punitive
       damages. Thus, the record does not support plaintiffs’ contention that they were denied leave
       to amend their prayer for relief. We find their argument is without merit.

¶ 45                                              E. Sanctions
¶ 46        Plaintiffs assert that the trial court should have granted their motion for sanctions on the
       basis of a Petrillo violation. Defense attorneys are prohibited from engaging in ex parte
       communications with a plaintiff’s treating physician. Requena v. Franciscan Sisters Health
       Care Corp., 212 Ill. App. 3d 328, 331 (1991) (citing Petrillo v. Syntex Laboratories, Inc., 148
       Ill. App. 3d 581, 594-95 (1986)). Violations of the rule may occur regardless of the information
       actually revealed. Mondelli v. Checker Taxi Co., 197 Ill. App. 3d 258, 265 (1990).
       Enforcement of the rule protects the confidential and fiduciary relationship between a patient
       and her medical care providers. Yates v. El-Deiry, 160 Ill. App. 3d 198, 202-03 (1987). The
       doctrine has been extended to include other health care professionals who have treated the

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       patient along with the doctor. Roberson v. Liu, 198 Ill. App. 3d 332, 338 (1990). The standard
       of review for a motion for sanctions is an abuse of discretion. Sadler v. Creekmur, 354 Ill. App.
       3d 1029, 1045 (2004).
¶ 47       Plaintiffs alleged that counsel for Steward and FNB engaged in ex parte communications
       with Denman’s attending physician, Bailey, in advance of his deposition, ultimately resulting
       in an unfair advantage to Steward and FNB. The trial court denied plaintiffs’ motion for
       sanctions on June 18, 2015, on the basis that the Petrillo doctrine did not apply to the facts of
       this case. They essentially ask this court to extend the Petrillo doctrine to include any
       physician who may provide testimony in litigation. Bailey was Denman’s treating physician on
       September 13, 2012. Denman is not a plaintiff to the instant case but instead was involved as a
       nonparty whose estate planning is at issue. The trial court found that the doctrine applies when
       there is an adversary relationship between defense counsel and plaintiff’s treating physician.
       As Bailey was not the treating physician of any of the plaintiffs, that adversarial relationship
       found in Petrillo does not exist on these facts. Further, counsel for Steward and FNB admitted
       to conversations with Bailey’s staff for purposes of deposition scheduling. It was also
       communicated by counsel for Steward and FNB to other parties that Bailey’s staff confirmed
       Bailey only tended to Denman one day, on September 13, 2012. We consider the evidence and
       the record do not support the fact that counsel for Steward and FNB engaged in ex parte
       communications directly with Bailey. Even though the Petrillo doctrine has been extended to
       staff members operating under attending physicians, the communications with Bailey’s staff
       were solely for the purposes of scheduling the depositions. Thus, any communications made
       by counsel for Steward and FNB do not amount ex parte communications. We reject the
       plaintiffs’ invitation to extend the Petrillo doctrine to include any physician who may offer
       testimony in litigation. The trial court properly declined to apply Petrillo or to extend the
       doctrine to include a nontreating physician and scheduling information.

¶ 48                                        CONCLUSION
¶ 49      For the foregoing reasons, the judgment of the circuit court of La Salle County is affirmed.

¶ 50      Affirmed.

¶ 51        PRESIDING JUSTICE HOLDRIDGE, dissenting:
¶ 52        I respectfully dissent. I disagree with the majority’s holding that summary judgment was
       appropriate on the tort claim. The majority cites In re Estate of Ellis, for the proposition that
       “[i]f a challenger to a will fails to initiate a direct proceeding to contest the will within the
       six-month statutory time period, the validity of the will is established for all purposes.” 236 Ill.
       2d 45, 50 (2009). The Ellis court further noted, however, that the tort of intentional interference
       with an inheritance “does not contest the validity of the will; it is a personal action directed at
       an individual tortfeasor.” Id. at 52. Noting that the remedy in a tort claim is personal against the
       alleged tortfeasor, and not an action against the estate, the Ellis court held that the application
       of the six-month statutory time frame provided under section 8-1 of the Probate Act of 1975
       (755 ILCS 5/8-1 (West 2012)) to a claim for tortious interference with a testamentary
       expectancy was erroneous as a matter of law. Ellis, 236 Ill. 2d at 51. The Ellis court noted that
       the six-month time limit provided in the Probate Act of 1975 could nevertheless restrict the
       filing of a tort action “where a plaintiff forgoes an opportunity to file a tort claim within the

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       six-month period for a will contest.” Id. at 53. The Ellis court clearly limited this exception to
       instances where the plaintiff had sufficient knowledge of the facts necessary to contest the will
       during the six-month time for filing a will contest, but chose not to do so. Id. at 55-56.
¶ 53       In the instant matter, the record reveals no facts which would support a finding that the
       plaintiffs had sufficient knowledge of the facts necessary to contest the will during the
       six-month time period for filing a will contest. The plaintiffs’ case rests upon the existence of
       the March Will and their knowledge of its existence. There is nothing in the record to establish
       conclusively that any of the plaintiffs had knowledge of the existence of that will or their status
       under that will within the six-month time period for filing a will contest. Without clear
       evidentiary proof that such knowledge existed, there is no basis upon which to conclude that
       the plaintiffs could have presented their claim within the statutory period. At best, the matter of
       plaintiffs’ knowledge is a matter of disputed fact. Thus, the circuit court erred, as a matter of
       law, in granting summary judgment on the tortious interference counts.
¶ 54       I also disagree with the majority’s conclusion that the mere existence of the March Will is
       insufficient to establish the expectancy element of the plaintiffs’ tort claim. It is well-settled
       that the existence of an expectancy is sufficiently pled where the plaintiff alleges the existence
       of a prior will. DeHart v. DeHart, 2013 IL 114137, ¶ 40; In re Estate of DiMatteo, 2013 IL
       App (1st) 122948, ¶ 80 (“allegation that a prior will existed is a sufficient allegation of an
       expectancy”). Here, the plaintiffs pled the existence of the March Will in their tortious
       interference counts. The law is clear that they were not required to plead any other facts to
       establish the expectancy element of the tort claim.
¶ 55       Regarding the trial court’s denial of the plaintiffs’ motion to compel production of certain
       discovery based upon attorney-client privilege, I would vacate the court’s ruling and remand
       for further proceedings in light of the reversal of summary judgment in the tortious
       interference claim. The question of whether the attorney-client privilege prohibits disclosure of
       sought-after information is subject to de novo review. Center Partners, Ltd. v. Growth Head
       GP, LLC, 2012 IL 113107, ¶ 65. Generally, attorney-client privilege does not apply to parties
       claiming under a will. Lamb v. Lamb, 124 Ill. App. 3d 687, 693 (1984). Moreover, courts have
       allowed parties seeking information from attorneys regarding deceased clients to access that
       information where the cause of action included tortious interference with a testamentary
       expectancy (DeHart, 2013 IL 114137, ¶ 73) and a contest involving an inter vivos trust.
       Eizenga v. Unity Christian School of Fulton, Illinois, 2016 IL App (3d) 150519. The tortious
       interference claim, involving a testamentary expectancy, sufficiently involves the rights of the
       claimants under a will to invoke the testamentary exception to the attorney-client privilege.
       Since I would reverse and remand the matter of tortious interference, I would likewise reverse
       and remand all discovery issues for consideration in light of the case going forward on the tort
       claim.
¶ 56       Since I would reverse the circuit court’s grant of summary judgment on the tortious
       interference count, I would remand the matter to the circuit court without ruling on the
       remaining counts of the complaint.




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