                                       2017 IL App (1st) 162746
                                            No. 1-16-2746
                                                                  FOURTH DIVISION
                                                                SEPTEMBER 29, 2017
     ______________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                     FIRST DISTRICT
     ______________________________________________________________________________

                                                             )
     DARREN MARESKAS-PALCEK and DAVID W.                     ) Appeal from the Circuit Court
     PALCEK, Not Individually, but Solely in His Capacity as ) of Cook County.
     Guardian of the Estate of DeAnna Mareskas-Palcek, and )
     as Sole Trustee of DeAnna Elisabeth Mareskas-Palcek )     No. 15 L 009435
     Discretionary Supplemental Needs Trust, Dated May       )
     26th, 1993,                                             ) The Honorable
                                                             ) Sheryl A. Pethers,
                                                             ) Judge Presiding.
             Plaintiffs-Appellants,                          )
                                                             )
     v.                                                      )
                                                             )
     SCHWARTZ, WOLF & BERNSTEIN, LLP, and MARC )
     SCHWARTZ, Individually,                                 )
                                                             )
             Defendants-Appellees.                           )
                                                             )
     ______________________________________________________________________________

                JUSTICE GORDON delivered the judgment of the court, with opinion.
                Presiding Justice Burke and Justice McBride concurred in the judgment and opinion.

                                               OPINION


¶1         The instant appeal arises from the dismissal of plaintiffs Darren Mareskas-Palcek and

        David Palcek’s complaint for breach of fiduciary duty and conversion, which plaintiffs filed

        against defendants, the law firm of Schwartz, Wolf & Bernstein, LLP, and Marc Schwartz,

        individually. The lawsuit was based on defendants’ actions during the closing of the sale of

        Denise E. Mareskas’ (decedent) principal residence, which occurred after her death. The trial
     No. 1-16-2746


         court dismissed the complaint with prejudice pursuant to section 2-619(a)(9) of the Illinois

         Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2014)). Plaintiffs appeal,

         arguing that they have proper standing to bring the lawsuit and that they properly pled

         sufficient facts to state causes of action for breach of fiduciary duty and conversion against

         defendants. For the reasons that follow, we affirm the trial court’s judgment.

¶2                                             BACKGROUND

¶3           On September 15, 2015, plaintiffs Darren Mareskas-Palcek and David Palcek filed a

         complaint against the law firm of Schwartz, Wolf & Bernstein, LLP, and Marc Schwartz, one

         of its partners, for breach of fiduciary duty owed to them as beneficiaries of the estate of the

         late Denise E. Mareskas. 1

¶4           The complaint alleged that decedent executed a power of attorney prior to her death so

         that defendants could represent her at the closing of the sale of her principal residence

         without being present. The closing was scheduled for August 8, 2013, and decedent died on

         August 7, 2013. Defendants knew that decedent died but continued with the closing without

         disclosing her death in the closing documents and without authorization from the

         beneficiaries of the estate.

¶5           The complaint also alleged that decedent died testate and that Darren was a beneficiary of

         her estate, as well as a beneficiary under a pourover trust established by decedent.

         Furthermore, plaintiffs alleged that the power of attorney signed by decedent was void due to

         her death, and that no effort was made by defendants to gain permission from plaintiffs to

         proceed with the closing. Instead, on August 8, 2013, defendants executed an agency escrow

         agreement and “HUD-1 Settlement Statement,” signing decedent’s name to the agreements.

             1
            Since plaintiffs and the decedent share the same last name, we will refer to plaintiff Darren
     Mareskas-Palcek as Darren, plaintiff David Palcek as David, and Denise as decedent.
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     No. 1-16-2746


        The complaint alleged that the HUD-1 settlement statement shows that defendants deducted

        over $20,000 from the sale proceeds for attorney fees when the fee for closing was $650. 2

        The complaint further alleged that neither decedent nor plaintiffs would have agreed to the

        payment of $20,000 in fees to defendants.

¶6          On November 30, 2015, defendants filed a motion to “strike” the complaint in lieu of an

        answer, in which they alleged that plaintiffs had no common law right in Illinois to recover

        attorney fees. Therefore, defendants argued that because plaintiffs asked for the return of the

        attorney fees in the complaint and the return is not recoverable in a common law cause of

        action, the complaint should be stricken. On January 21, 2016, the trial court granted

        defendants’ motion to strike and granted plaintiffs 30 days to file an amended complaint. On

        February 17, 2016, plaintiffs filed their amended complaint.

¶7          The amended complaint included a second count for conversion. Count I, for breach of

        fiduciary duty, included allegations that defendants breached the Illinois Rules of

        Professional Conduct, specifically rules 1.5 and 1.8. Ill. R. Prof’l Conduct (2010) R. 1.5(a)

        (eff. Jan. 1, 2010) (“A lawyer shall not make an agreement for, charge, or collect an

        unreasonable fee or an unreasonable amount for expenses.”); Ill. R. Prof’l Conduct (2010) R.

        1.8(a) (eff. Jan. 1, 2010) (“A lawyer shall not enter into a business transaction with a client or

        knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a

        client ***.”).

¶8          Further, the amended complaint explained plaintiffs’ status, alleging that there were two

        trusts involved—the DeAnna Mareskas-Palcek Discretionary Supplemental Needs Trust

        (DeAnna trust) and the Denise E.M. Palcek Trust (decedent trust), a pourover trust. The


            2
             The $20,000 deduction apparently represented fees owed on another matter.
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       No. 1-16-2746


          complaint alleged that Darren is a beneficiary of decedent’s trust and that David is the trustee

          of the DeAnna trust. The complaint also alleged that both trusts were beneficiaries of the

          decedent’s estate.

¶9           In count II, for conversion, the complaint alleged that, at the time of the real estate

          closing, plaintiffs were the lawful owners of the property that was conveyed. As a result,

          plaintiffs alleged that defendants exerted unauthorized control over funds that rightfully

          belonged to plaintiffs.

¶ 10         On April 27, 2016, defendants moved to dismiss under section 2-619 of the Code (735

          ILCS 5/2-619 (West 2014)), claiming first that plaintiffs could not state a cause of action for

          breach of fiduciary duty because defendants owed no duty to plaintiffs, who were not

          defendants’ clients. As such, defendants claimed that they did not violate the Illinois Rules of

          Professional Conduct as to plaintiffs because no attorney-client relationship existed. Second,

          defendants claimed that plaintiffs lacked standing to bring suit because the suit could only be

          filed by the executor of decedent’s estate. Last, defendants claimed that there could not be

          conversion because plaintiffs had no right to the property and no right to take immediate

          possession of the property.

¶ 11         On June 2, 2016, plaintiffs filed a response in which they claimed that they had

          established that defendants owed a duty to them because the trusts were beneficiaries of the

          estate. Plaintiffs claimed first that as beneficiaries of decedent’s estate, they were entitled to

          reasonable conduct by defendants, which included not taking money from the DeAnna trust.

          Second, plaintiffs claimed that the attorney-client relationship between defendants and

          decedent was for the benefit of plaintiffs, thereby establishing that defendants owed them a

          duty.


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       No. 1-16-2746


¶ 12          Plaintiffs also claimed that they pled facts to establish conversion because their rights in

          the property vested at the time of decedent’s death and, therefore, defendants exercised

          unauthorized control over their property. Plaintiffs claimed that they alleged all the elements

          of conversion and that any factual issues concerning conversion were questions of fact to be

          decided by the trier of fact.

¶ 13          On June 9, 2016, defendants filed a reply in support of their motion to dismiss, in which

          they argued, first, that plaintiffs failed to allege facts to support their claim that the attorney-

          client relationship was for their benefit. Defendants argued, second, that plaintiffs lacked

          standing, as non-trustees, to bring suit and failed to cite case law in support of their claim that

          defendants owed them a duty. Defendants argued that duty is a question of law, to be decided

          by the trial court, and that defendants owed no duty to plaintiffs, since they were not their

          clients.

¶ 14          The four elements of conversion are: (1) an unauthorized and wrongful assumption of

          control, dominion, or ownership by defendant over plaintiff’s personalty; (2) plaintiff’s right

          in the property; (3) plaintiff’s right to the immediate possession of the property, absolutely

          and unconditionally; and (4) a demand for possession of the property. General Motors Corp.

          v. Douglass, 206 Ill. App. 3d 881, 886 (1990); Cirrincione v. Johnson, 184 Ill. 2d 109, 114

          (1998). Defendants argued that plaintiffs failed to allege facts to establish three of the four

          elements of conversion: (1) plaintiffs’ right in the property; (2) plaintiffs’ right to the

          immediate possession of the property, absolutely and unconditionally; and (3) a prior written

          demand for the property. Defendants argued that as beneficiaries of decedent’s estate,

          plaintiff had no legal right to the property or right to immediate possession of the property. In




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       No. 1-16-2746


          addition, defendants argued that plaintiffs never made a proper demand for possession of the

          property.

¶ 15          On June 22, 2016, the trial court heard arguments and granted defendants’ motion to

          dismiss. The trial court then granted plaintiffs leave to file a second amended complaint

          within 21 days. On September 14, 2016, after plaintiffs failed to file a second amended

          complaint, defendants moved again to dismiss under section 2-619 of the Code (735 ILCS

          5/2-619 (West 2014)). On September 26, 2016, after plaintiffs notified the trial court that

          they intended to stand on their amended complaint, the trial court granted defendants’ motion

          to dismiss with prejudice as a final and appealable order. The September 26, 2016, order

          stated, in relevant part:

                       “It is ordered

                       Counselor for Plaintiff has advised the Court that Plaintiff is standing upon his 1st

               Amended Complaint previously dismissed without prejudice and intends to appeal the

               dismissal of the 1st Amended Complaint. As such, this matter is dismissed with

               prejudice.

                       This order is final and appealable.”

¶ 16          Plaintiffs filed a timely notice of appeal on October 14, 2016.

¶ 17                                              ANALYSIS

¶ 18          On appeal, plaintiffs argue that the trial court erred in dismissing plaintiffs’ amended

          complaint because plaintiffs properly alleged that defendants owed them a duty and breached

          that duty, thereby establishing standing to bring suit against defendants for breach of

          fiduciary duty and conversion. Plaintiffs also argue that they properly alleged a valid cause of

          action for both counts.


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       No. 1-16-2746


¶ 19                                        I. Standard of Review

¶ 20         As an initial matter, we note that defendants’ motion to dismiss was brought under

          section 2-619(a)(9) but also argued that plaintiffs failed to state a cause of action for breach

          of fiduciary duty and conversion. Motions to dismiss for failure to state a cause of action are

          properly brought under section 2-615. See Doe v. Psi Upsilon International, 2011 IL App

          (1st) 110306, ¶ 10 (“The critical inquiry [for section 2-615 motions] is whether the

          allegations in the complaint are sufficient to state a cause of action upon which relief may be

          granted.”). Section 2-619.1 of the Code allows a litigant to combine a section 2-615 motion

          to dismiss with a section 2-619 motion to dismiss in one pleading. 735 ILCS 5/2-619.1 (West

          2014). However, this statute does not authorize hybrid motion practice. Northern Trust Co. v.

          County of Lake, 353 Ill. App. 3d 268, 278 (2004). In other words, the moving party cannot

          commingle the distinctive claims pursuant to section 2-615 and 2-619. Reynolds v. Jimmy

          John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 20; Howle v. Aqua Illinois, Inc., 2012

          IL App (4th) 120207, ¶ 72; see also Janes v. First Federal Savings & Loan Ass’n of Berwyn,

          57 Ill. 2d 398, 405-06 (1974) (rejecting “hybrid procedure” combining motion challenging

          the legal sufficiency and at the same time answering the complaint while filing affidavits

          stating facts and demanding judgment on the merits). Instead, the moving party must comply

          with section 2-619.1 when combining motions to retain the procedural distinctions between

          section 2-619 and section 2-615. Reynolds, 2013 IL App (4th) 120139, ¶ 20.

¶ 21         In the reply in support of their motion to dismiss, defendants claimed to be in compliance

          with section 2-619.1 because “the headings of [the motion to dismiss] clearly identify where

          Plaintiffs have failed to state a claim” and assert that plaintiffs lack standing to bring this

          lawsuit, which is an affirmative matter properly raised under section 2-619(a)(9). However,


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       No. 1-16-2746


          the Code specifically requires that “[e]ach part shall be limited to and shall specify that it is

          made under one of Sections 2-615, 2-619, or 2-1005.” (Emphasis added.) 735 ILCS 5/2-

          619.1 (West 2014). Defendants did not cite to section 2-615 anywhere in their motion to

          dismiss, and the headings did not reference section 2-615 to alert the trial court of separate

          statutory grounds for dismissal.

¶ 22         Although a movant’s failure to specifically designate whether a motion to dismiss is

          brought pursuant to section 2-615 or section 2-619 can be fatal, we will not consider it so in

          this case because no prejudice resulted to the nonmovant. Northern Trust Co., 353 Ill. App.

          3d at 278. We are permitted to address the merits of defendants’ improper motion as if it had

          been brought under the proper section, so long as the plaintiffs were not prejudiced by the

          error. B&B Land Acquisition, Inc. v. Mandell, 305 Ill. App. 3d 1068, 1071 (1999); Cosman v.

          Ford Motor Co., 285 Ill. App. 3d 250, 254 (1996). Defendants here did not prejudice

          plaintiffs when they improperly moved to dismiss for failure to state a cause of action under

          section 2-619(a)(9) because plaintiffs argued the merits of defendants’ motion in the trial

          court and continue to do so now on appeal, and it is clear to us as to what they are attempting

          to do even though they are not doing it correctly. See B&B Land Acquisition, Inc., 305 Ill.

          App. 3d at 1071. In addition, a party can bring a combined motion under sections 2-615 and

          2-619 under section 2-619.1. Accordingly, we now turn to the merits of plaintiffs’ claims on

          appeal.

¶ 23         “A motion to dismiss, pursuant to section 2-619 of the Code, admits the legal sufficiency

          of the plaintiffs’ complaint, but asserts an affirmative defense or other matter that avoids or

          defeats the plaintiffs’ claim.” DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006); Solaia

          Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006). When reviewing a


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          motion to dismiss under section 2-619, “a court must accept as true all well-pleaded facts in

          plaintiffs’ complaint and all inferences that can reasonably be drawn in plaintiffs’ favor.”

          Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008). Additionally, a cause of action

          should not be dismissed under section 2-619 unless it is clearly apparent that no set of facts

          can be proven that would entitle the plaintiff to relief. Feltmeier v. Feltmeier, 207 Ill. 2d 263,

          277-78 (2003). To determine whether a case is properly dismissed under section 2-619, our

          standard of review is de novo. Solaia Technology, LLC, 221 Ill. 2d at 579. De novo

          consideration means we perform the same analysis that a trial judge would perform. Khan v.

          BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 24         For a motion to be properly brought under section 2-619, the motion (1) must be filed

          “within the time for pleading” and (2) must concern one of nine listed grounds. 735 ILCS

          5/2-619(a) (West 2014). In the case at bar, the section 2-619 dismissal motion was timely

          filed, within the time for pleading to plaintiffs’ amended complaint. Plaintiffs were given

          leave to file a second amended complaint; however, they chose to stand on their first

          amended complaint and to file this appeal instead.

¶ 25         Second, defendants’ section 2-619 motion concerned one of the nine listed grounds. A

          dismissal under section 2-619 is permitted only on the following grounds:

                 “(1) That the court does not have jurisdiction of the subject matter of the action,

             provided the defect cannot be removed by a transfer of the case to a court having

             jurisdiction.

                 (2) That the plaintiff does not have legal capacity to sue or that the defendant does not

             have legal capacity to be sued.

                 (3) That there is another action pending between the same parties for the same cause.


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                  (4) That the cause of action is barred by a prior judgment.

                  (5) That the action was not commenced within the time limited by law.

                  (6) That the claim set forth in the plaintiff’s pleading has been released, satisfied of

              record, or discharged in bankruptcy.

                  (7) That the claim asserted is unenforceable under the provisions of the Statute of

              Frauds.

                  (8) That the claim asserted against defendant is unenforceable because of his or her

              minority or other disability.

                  (9) That the claim asserted against defendant is barred by other affirmative matter

              avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a) (West 2014).

¶ 26          In the case at bar, the subject matter of defendants’ dismissal motion falls into one of

          those categories, namely, that plaintiffs had no standing to bring the suit, which shows “[t]hat

          the claim asserted against defendant is barred by other affirmative matter avoiding the legal

          effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2014). Thus, procedurally,

          this motion was properly brought under section 2-619.

¶ 27                          II. Section 2-619(a)(9): Plaintiffs’ Standing to Sue

¶ 28          We first discuss the basis for defendants’ 2-619 motion to dismiss, namely, plaintiffs’

          standing to bring the instant lawsuit. Plaintiffs argue that Darren, as beneficiary of decedent’s

          estate, and David, as trustee of the DeAnna trust, have standing to sue based solely on their

          titles as such.

¶ 29          A plaintiff’s lack of standing is a proper affirmative matter pursuant to section 2-

          619(a)(9), as it completely defeats the plaintiff’s ability to successfully prosecute its claim

          against the defendants. Reynolds, 2013 IL App (4th) 120139, ¶ 33; Jackson v. Randle, 2011

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          IL App (4th) 100790, ¶ 12. “ ‘The doctrine of standing is designed to preclude persons who

          have no interest in a controversy from bringing suit,’ and ‘assures that issues are raised only

          by those parties with a real interest in the outcome of the controversy.’ ” Nationwide

          Advantage Mortgage Co. v. Ortiz, 2012 IL App (1st) 112755, ¶ 24 (quoting Glisson v. City of

          Marion, 188 Ill. 2d 211, 221 (1999)).

¶ 30         “ ‘To have standing, *** the [claimant] must not be merely curious or concerned but

          must possess some personal claim, status, or right, a distinct and palpable injury which is

          fairly traceable to the [respondent’s] conduct and substantially likely to be redressed by the

          grant of such relief.’ ” In re Estate of Zivin, 2015 IL App (1st) 150606, ¶ 14 (quoting Potter

          v. Ables, 242 Ill. App. 3d 157, 158 (1993)). “A standing challenge focuses on the party

          seeking relief—not on the merits of the controversy—and asks whether that party is entitled

          to pursue the legal challenge, either in their personal or representative capacity.” In re Estate

          of Zivin, 2015 IL App (1st) 150606, ¶ 14.

¶ 31         “[S]tanding requires some injury in fact to a legally cognizable interest ***.” Glisson,

          188 Ill. 2d at 221. Our Illinois Supreme Court has stated that the “lack of standing in a civil

          case is an affirmative defense, which will be waived if not raised in a timely fashion in the

          trial court.” Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 508 (1988).

          “As an affirmative defense, the lack of standing is the defendant’s burden to plead and

          prove.” Ortiz, 2012 IL App (1st) 112755, ¶ 24; Lebron v. Gottlieb Memorial Hospital, 237

          Ill. 2d 217, 252 (2010).

¶ 32         In the case at bar, defendants argue that plaintiffs lack standing to bring the instant

          lawsuit because neither plaintiff has alleged that he is the executor of decedent’s estate. The

          well established rule in this state is that an estate lacks the capacity to sue or be sued, and any


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          action must be brought by the executor or representative of the estate. In re Marriage of

          Schauberger, 253 Ill. App. 3d 595, 598 (1993); Precision Components, Inc. v. Estate of

          Kuntz, 112 Ill. App. 3d 309, 310 (1983) (“estates are not natural or artificial persons and lack

          capacity to sue”); Wisemantle v. Hull Enterprises, Inc., 103 Ill. App. 3d 878, 881 (1981)

          (“ ‘Estates’ are not natural or artificial persons, and they lack legal capacity to sue or be

          sued.”).

¶ 33         Nowhere in the record does it appear that either plaintiff alleged to be the executor or

          representative of the estate, nor are there any documents in the record establishing them as

          such. Plaintiffs argue in their reply brief on appeal that defendants “ultimately converted over

          $20,000 in attorney fees from [decedent], and after she passed, from her Estate and Trust,

          which was the property of [plaintiffs] as a beneficiary.” This implies that decedent was

          injured and thus both actions accrued to decedent before death. We note that, in their

          complaint, plaintiffs do not allege that defendants’ actionable conduct occurred before

          decedent’s death and, in fact, the basis of their claims is defendants’ conduct after decedent

          had passed away.

¶ 34         While defendants’ alleged wrongful conduct would still be actionable after decedent’s

          death, plaintiffs are not the proper parties to bring suit for either claim, since they claim they

          are the “ultimate beneficiaries” of the estate. Instead, only the executor of decedent’s estate

          can bring suit on behalf of the decedent. See Wilmere v. Stibolt, 152 Ill. App. 3d 642, 645

          (1987) (“the executor or administrator of a decedent’s estate has standing to file suit on

          behalf of the decedent, but the legatees, heirs, and devisees have no such standing”); Will v.

          Northwestern University, 378 Ill. App. 3d 280, 289-90 (2007) (“survival actions do ‘not




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          create an individual right in a beneficiary to bring suit’ ” (quoting Rogers v. Consolidated

          R.R. Corp., 136 Ill. App. 3d 191, 193 (1985))).

¶ 35         Since the alleged conduct occurred after decedent’s death, she was not the injured party

          for whom relief is sought. Pursuant to the Probate Act, a decedent’s property belongs to his

          or her estate upon his or her death and then transfers to the rightful successors in accordance

          with the Act and decedent’s will. 755 ILCS 5/4-13 (West 2014); 755 ILCS 5/20-1(a) (West

          2014) (“every representative shall take possession, subject to the exempt estate of homestead,

          of all real estate of the decedent during the period of administration”); see also Lescher v.

          Barker, 57 Ill. App. 3d 776, 780 (1978) (“[Section 20-1 of the Probate Act] imposes on the

          representative of the decedent’s estate a legal duty to take possession of the decedent’s real

          estate during the period of administration even though the title to the property is in the heirs

          or devisees.”). Thus, in the case at bar, defendants allegedly injured decedent’s estate rather

          than decedent herself because decedent’s real estate and the proceeds of its sale became

          assets of her estate upon her death. Since an estate lacks the capacity to sue or be sued, and

          any action must be brought by the executor or representative of the estate, plaintiffs, as

          beneficiaries, lacked standing to bring these claims against defendants and the trial court

          properly dismissed their complaint. In re Marriage of Schauberger, 253 Ill. App. 3d at 598.

¶ 36         Furthermore, according to plaintiffs’ amended complaint, the assets of decedent’s estate

          were to be divided, at least, amongst her two children, as beneficiaries, and her own trust.

          Darren is a beneficiary of decedent’s estate, and is therefore benefitted in such capacity,

          whereas DeAnna, decedent’s daughter, is benefitted through her trust because the trust is a

          beneficiary of the estate. David, decedent’s ex-husband, is the trustee of this trust. As such,

          plaintiffs argue that David, “in his representative capacity as the trustee of the DeAnna


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           Elisabeth Mareskas-Palcek Discretionary Supplemental Trust dated May 26, 1993 *** has

           standing to sue.”

¶ 37           Although in general under Illinois law, trustees have standing to sue third parties on

           behalf of a trust, this concept is not applicable to the case at hand. Axelrod v. Giambalvo, 129

           Ill. App. 3d. 512, 519 (1984), Ready v. Ready, 33 Ill. App. 2d 145, 152 (1961) (“The right to

           sue in the ordinary case vests only in the trustee.”). In the case at bar, David is a trustee of the

           DeAnna trust, which was to be benefitted by decedent’s estate after her death. As such, the

           DeAnna trust is merely a beneficiary of decedent’s estate and David would have no standing

           to bring suit. Therefore, any claim against defendants must be brought by the executor or

           representative of the estate. In the case at bar, the executor of decedent’s estate has standing

           to file suit on behalf of the decedent, but the legatees, heirs, and devisees have no such

           standing. Wilmere, 152 Ill. App. 3d at 645; Northwestern University, 378 Ill. App. 3d at 289.

¶ 38           We find unpersuasive plaintiffs’ argument that they have standing because defendants

           owed them a duty as intended beneficiaries of the real estate transaction. “The traditional,

           general rule has been that the attorney is liable only to his client, not to third persons.”

           Pelham v. Griesheimer, 92 Ill. 2d 13, 19 (1982). “[T]o establish a duty owed by the

           defendant attorney to the nonclient the nonclient must allege and prove that the intent of the

           client to benefit the nonclient third party was the primary or direct purpose of the transaction

           or relationship.” Pelham, 92 Ill. 2d at 20-21. 3 In other words, the nonclient “must prove that



               3
                 While Pelham involved a claim of legal malpractice and therefore discussed duty in the context
       of negligence, the Pelham court found that a plaintiff alleging such a duty must “allege and prove facts
       demonstrating that they are in the nature of third-party intended beneficiaries of the relationship between
       the client and the attorney,” thereby analogizing the duty owed in a legal malpractice action to the duty
       owed to a third-party beneficiary in an action based on contract. Pelham, 92 Ill. 2d at 20. See also
       Pelham, 92 Ill. 2d at 21 (noting that its analysis was based on an “analogy to third-party direct
       beneficiaries to determine the duty owed to a nonclient by an attorney in a negligence action”).
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          the primary purpose and intent of the attorney-client relationship itself was to benefit or

          influence the third party.” Pelham, 92 Ill. 2d at 21.

¶ 39         In the case at bar, the complaint does not allege that decedent entered into an attorney-

          client relationship primarily to benefit plaintiffs. The complaint merely alleges that “[p]rior

          to the time of her death, Denise retained the services of [defendants] to represent her for the

          sum of $650.00 in a real estate transaction involving the sale of her principle [sic] residence

          ***.” Thus, the purpose of the attorney-client relationship, as alleged in the complaint, was

          simply for the sale of decedent’s residence, without any reference to the distribution of the

          proceeds. There is nothing in the complaint to suggest that the primary reason for the real

          estate closing was to pass the proceeds of the sale to plaintiffs—for instance, while the

          complaint alleges that plaintiff had been hospitalized “for a period of time prior to her death,”

          the complaint does not allege that plaintiff had arranged to sell her property in anticipation of

          her death so that the proceeds would be distributed to her children.

¶ 40         Plaintiffs’ argument here is similar to the claim of duty to a nonclient rejected by the

          supreme court in Pelham, which found that the attorney in that case “was hired primarily for

          the purpose of obtaining a divorce, property settlement, and custody of the minor children for

          [the wife], not to represent her children’s interest.” Pelham, 92 Ill. 2d at 23. As in that case,

          “[t]he plaintiffs herein are, at best, only incidental beneficiaries in this situation.” Pelham, 92

          Ill. 2d at 23. See also Gale v. Williams, 299 Ill. App. 3d 381, 385 (1998) (affirming the

          dismissal of the nonclient mother’s legal malpractice action against the decedent son’s

          attorney where “[p]laintiff simply cannot allege that the primary reason her son hired the

          defendant attorney was to change her status from contingent beneficiary on the employer-

          provided plans to primary beneficiary. At best, plaintiff is only an incidental beneficiary of


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          the attorney-client relationship, and an incidental beneficiary is not qualified to bring a

          malpractice action of this character. [Citation.]”).

¶ 41         Plaintiffs attempt to draw an analogy between their situation and that present in McLane

          v. Russell, 131 Ill. 2d 509 (1989), a case in which the supreme court found that the attorney

          owed a duty to a nonclient. There, the decedent retained an attorney to amend her will to

          leave her interest in her farm to her two tenants; the attorney did so, but failed to sever the

          joint tenancy between the decedent and her sister, meaning that upon the decedent’s death,

          the decedent’s interest in the property passed to the sister. McLane, 131 Ill. 2d at 512-13. The

          nonclient tenants filed a legal malpractice suit against the attorney, alleging that the

          attorney’s negligence had deprived them of the decedent’s interest in the farm. McLane, 131

          Ill. 2d at 513. The supreme court found that the attorney owed the nonclients a duty, finding

          that the plaintiffs “convincingly proved that *** the primary purpose of the engagement in

          1975 of [the attorney] by [the decedent], in which [the attorney] drafted [the decedent’s] will,

          was to benefit the [nonclient tenants].” McLane, 131 Ill. 2d at 518. See also Ogle v. Fuiten,

          102 Ill. 2d 356, 363 (1984) (finding that nonclients had sufficiently alleged a duty where the

          decedents had allegedly intended for their wills to leave their estates to the nonclients but the

          wills were not drafted to effectuate that intent).

¶ 42         We cannot agree with plaintiffs that the situations in McLane or Ogle are in any way

          similar to the situation present in the case at bar. Plaintiffs claim that “the proceeds of the

          sale of the real estate would have been transferred to the Estate upon [the decedent’s] death,

          thus benefitting the beneficiaries.” However, the mere fact that the proceeds would

          eventually pass to plaintiffs does not render them intended beneficiaries of the real estate

          closing such that defendants would owe them a duty. See Gale, 299 Ill. App. 3d at 385 (“The


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          fact that plaintiff may have indirectly benefitted from defendant’s representation of her son

          does not mean, as plaintiff argues, that the attorney thereby owes a duty to her.”). In McLane,

          the evidence proved that the decedent drafted her will specifically for the purpose of

          transferring her interest in the farm to the nonclient tenants. Similarly, in Ogle, the complaint

          alleged that the attorney was retained for the purpose of drafting wills for the benefit of the

          nonclients as well as the decedents. Here, by contrast, there is nothing to suggest that

          decedent engaged in the real estate closing specifically for the purpose of passing the

          proceeds to plaintiffs. Accordingly, plaintiffs lack standing to bring this lawsuit, and

          therefore, we affirm the judgment of the lower court.

¶ 43         Since we have found that plaintiffs have no standing to bring suit, we need not decide

          whether plaintiffs otherwise alleged a valid cause of action for breach of fiduciary duty and

          conversion. This court is not in a position to comment on the conduct of the defendants under

          the facts of this cause because their conduct is not before us in this appeal. The merits of

          plaintiffs’ claim can be decided by a suit brought by the executor of the decedent’s estate.

¶ 44                                           CONCLUSION

¶ 45         For the foregoing reasons, we find that plaintiffs lacked standing to sue, and thus affirm

          the trial court’s granting of defendants’ motion to dismiss. Since decedent died before

          defendants sold decedent’s real estate property, the proceeds from sale belonged to

          decedent’s estate and so the executor of her estate was the proper party to bring suit.

¶ 46         Affirmed.




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