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                               Appellate Court                         Date: 2018.12.04
                                                                       13:42:18 -06'00'




                  In re Estate of Lewy, 2018 IL App (1st) 172552



Appellate Court   In re ESTATE OF ALICE LEWY, Deceased (Lisa Dudley,
Caption           Claimant-Appellant, v. FNBC Bank and Trust, as Independent
                  Administrator of the Estate of Alice Lewy, Deceased, Respondent-
                  Appellee).



District & No.    First District, Fourth Division
                  Docket No. 1-17-2552


Filed             September 28, 2018



Decision Under    Appeal from the Circuit Court of Cook County, No. 17-P-00905; the
Review            Hon. Mary Ellen Coghlan, Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        Christopher Berghoff, of Berghoff & Berghoff, Ltd., and Nicholas P.
Appeal            Hoeft, of Jostock & Jostock, P.C., both of Chicago, for appellant.

                  Eric Dorkin, MacKenzie A. Hyde, Angelo DiBartolomeo, and Ashley
                  Coppola, of Clark Hill PLC, of Chicago, for appellee.



Panel             PRESIDING JUSTICE McBRIDE delivered the judgment of the
                  court, with opinion.
                  Justice Burke concurred in the judgment and opinion.
                  Justice Gordon specially concurred, with opinion.
                                             OPINION

¶1       Is a person who has been convicted of misdemeanor battery of an 88-year-old disabled
     woman prevented by the elder abuse and neglect provision of the Probate Act of 1975 (Act)
     (755 ILCS 5/2-6.2(b) (West 2014)) from subsequently seeking quantum meruit compensation
     from the woman’s estate for caretaking services? The trial court ruled that the statute barred
     Lisa Dudley’s claim for compensation from the estate of Alice Lewy, because Dudley—who
     had been charged with committing felony criminal neglect of an elderly person, felony
     aggravated domestic battery, felony assault with battery of a senior citizen, and misdemeanor
     battery against Lewy in her home—entered into a guilty plea agreement as to the misdemeanor
     battery charge. See 720 ILCS 5/12-3(a)(1) (West 2014) (battery). On appeal, Dudley contends
     the trial court erred when the phrase “by reason of the death” limits the scope of the statute to
     claims that arise by reason of the abused person’s death, e.g., the claims of heirs and surviving
     joint tenants, but that Dudley’s quantum meruit claim was not triggered by Lewy’s death and
     could have been filed during Lewy’s lifetime. See 755 ILCS 5/2-6.2(b) (West 2014). We need
     not resolve the merits of Dudley’s argument, however. Although misdemeanor battery of an
     elderly or disabled person is egregious, it is not an offense that falls within the scope of the
     current Act. See 755 ILCS 5/2-6.2(b) (West 2014). Consequently, it was error to dismiss
     Dudley’s compensation claim on the basis of the statute.
¶2       We have jurisdiction pursuant to Illinois Supreme Court Rule 304(b)(1) (eff. Mar. 8, 2016).
     The trial court entered a final and appealable order on June 6, 2017, by dismissing Dudley’s
     claim with prejudice; the trial court denied Dudley’s motion to reconsider on September 14,
     2017, and Dudley filed her notice of appeal within 30 days on October 12, 2017.
¶3       According to Dudley, she became friends with Lewy and Lewy’s husband after meeting
     them in a McDonald’s restaurant in Skokie in 1991 when Dudley was in her early thirties and
     Lewy was in her mid-sixties. In her claim against Lewy’s estate, Dudley alleged that, in 2009,
     around the time that Lewy’s husband died, Dudley became Lewy’s caretaker, housekeeper,
     cleaner, driver, and personal assistant. Dudley alleged that she helped Lewy on a full-time
     basis for the next seven years because Lewy asked for her assistance and that, although Lewy
     paid her “infrequently” and “little” at the time, Lewy promised to bequeath “handsome[ ]
     compensation” and “substantial sums.”
¶4       The physical altercation at issue occurred in Lewy’s home at 4840 Foster Street, No. 1,
     Skokie, Illinois, 60077, on November 22, 2015. The record includes a partial transcript of a
     preliminary hearing conducted on December 15, 2015, during which Lewy was called as one
     of the witnesses for the prosecution, demonstrated memory loss and confusion, and had no
     recollection of the altercation. After other witnesses testified, Dudley pled guilty and was
     convicted of misdemeanor battery in violation of section 12-3(a)(1) of the Criminal Code of
     2012 (720 ILCS 5/12-3(a)(1) (West 2014)). The criminal division judge sentenced Dudley to a
     term of two years’ conditional discharge, ordered her to avoid unlawful conduct with Lewy,
     and prohibited Dudley from providing caregiving services.
¶5       The record also includes a probate division order entered in April 2016, appointing the
     Cook County Public Guardian as the temporary guardian of Lewy’s person and estate. The
     probate court judge found the guardianship was necessary for the immediate welfare and
     protection of her person and assets. Specifically, Lewy had been diagnosed with mild to
     moderate dementia and stomach cancer and had been physically abused by Dudley. Also,

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     although Dudley had been ordered not to provide caregiving services, she was observed in
     Lewy’s home during a subsequent visit by the Public Guardian’s office and was known to have
     transported Lewy to visit attorneys. In addition, a friend who had Lewy’s health care power of
     attorney had resigned “due to the difficulty with caregiver Dudley.” The order also indicates
     Lewy’s last surviving sibling, Richard Huspek, was residing with Lewy, that Lewy was
     responsible for his healthcare and coordination of his caregivers and daily insulin injections,
     that Lewy’s physician opined Lewy was not capable of continuing to act in a decision-making
     capacity for her brother, and that the Public Guardian’s office was also petitioning for
     Huspek’s guardianship.
¶6       Within less than a year of the guardianship order, Lewy died intestate on January 20, 2017,
     leaving her brother as the sole heir of her $1.2 million estate.
¶7       Dudley filed claims of fraudulent inducement and breach of contract to make a will
     favoring her. She also sought $1.226 million from the estate in quantum meruit compensation
     for caregiving services she rendered at the rate of $40 per hour for 12 hours every day between
     2009 and 2015.1
¶8       FNBC Bank and Trust, as independent administrator of Lewy’s estate, filed a combined
     motion to dismiss with prejudice pursuant to section 2-619.1 of the Code of Civil Procedure,
     arguing in part that, in light of subsection (b) of the Act, Dudley’s criminal conviction
     affirmatively barred her claim against the estate. The Act states in relevant part:
             “Financial exploitation, abuse, or neglect of an elderly person or a person with a
             disability.
                 (a) In this Section:
                 ‘Abuse’ means any offense described in Section 12-21 or subsection (b) of Section
             12-4.4a of the Criminal Code of 1961 or the Criminal Code of 2012.
                 ‘Financial exploitation’ means any offense or act described or defined in Section
             16-1.3 or 17-56 of the Criminal Code of 1961 or the Criminal Code of 2012, and, in the
             context of civil proceedings, the taking, use, or other misappropriation of the assets or
             resources of an elderly person or a person with a disability contrary to law, including,
             but not limited to, misappropriation of assets or resources by undue influence, breach
             of a fiduciary relationship, fraud, deception, extortion, and conversion.
                 ‘Neglect’ means any offense described in Section 12-19 or subsection (a) of
             Section 12-4.4a of the Criminal Code of 1961 or the Criminal Code of 2012.
                 (b) Persons convicted of financial exploitation, abuse, or neglect of an elderly
             person or a person with a disability or persons who have been found by a
             preponderance of the evidence to be civilly liable for financial exploitation shall not
             receive any property, benefit, or other interest by reason of the death of that elderly
             person or person with a disability, whether as heir, legatee, beneficiary, survivor,
             appointee, claimant under Section 18-1.1, or in any other capacity and whether the
             property, benefit, or other interest passes pursuant to any form of title registration,


         1
          According to the estate, Huspek died shortly after Lewy, and Dudley filed claims against his estate
     of breach of contract to make a will and quantum meruit. However, the Public Guardian opposed the
     claims, and the trial court dismissed them. There is no indication that Dudley appealed.

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                testamentary or nontestamentary instrument, intestacy, renunciation, or any other
                circumstance.” 755 ILCS 5/2-6.2(b) (West 2014).
¶9          Dudley filed a response and an amended response to the administrator’s dismissal motion,
       in which she argued she should be considered innocent, notwithstanding her conviction.
       Dudley attributed the criminal charges to unintentional injuries and law enforcement’s
       erroneous assumptions about what had occurred. As to the conviction, Dudley said she
       “[r]eluctantly *** agreed to the plea deal based upon her attorney’s counsel that doing so
       would legally have no adverse effect on her relationship with [Lewy].” Dudley contended it
       would be inequitable for the court to deny her “rightful compensation.”
¶ 10        After written and oral arguments, the probate court judge granted the administrator’s
       motion to dismiss. Dudley then retained a different attorney, filed a motion to reconsider in
       which she introduced the statutory argument she now makes on appeal, and proposed that she
       amend her pleading to bring only the quantum meruit count. The judge denied the motion, and
       in this ensuing appeal, Dudley has limited her arguments to her quantum meruit allegations. As
       indicated above, however, we find it unnecessary to reach her argument about the meaning of a
       certain phrase in the statute, because the statute concerns a felony form of abuse and does not
       apply to Dudley’s misdemeanor conviction for battery of her elderly, disabled client.
¶ 11        Interpretation of a statute is a question of law that we address de novo. People ex rel.
       Schad, Diamond & Shedden, P.C. v. My Pillow, Inc., 2018 IL 122487, ¶ 18. It is a primary rule
       of statutory construction that the intention of the legislature should be ascertained and given
       effect. Founders Insurance Co. v. American Country Insurance Co., 366 Ill. App. 3d 64, 69,
       851 N.E.2d 120 (2006). All other rules of statutory construction are subordinate to this
       principle. Founders Insurance, 366 Ill. App. 3d at 69; Henrich v. Libertyville High School, 186
       Ill. 2d 381, 387, 712 N.E.2d 298 (1998). When interpreting a statute, we look first to the terms
       of the statute and give the legislature’s words their plain and ordinary meaning. Founders
       Insurance, 366 Ill. App. 3d at 69. It is never proper for a court to depart from plain statutory
       language by reading in conditions, exceptions, or limitations that conflict with the clearly
       expressed legislative intent. Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 149, 688
       N.E.2d 90 (1997). In addition, where a statute is derogation of the common law, it is to be
       strictly construed. My Pillow, 2018 IL 122487, ¶ 18. “Nothing is to be read into such statutes
       by intendment or implication. Even if a statute has remedial features, if it is in derogation of the
       common law, ‘ “it will be strictly construed when determining what persons come within its
       operation.” ’ ” My Pillow, 2018 IL 122487, ¶ 18 (quoting JPMorgan Chase Bank, N.A. v.
       Earth Foods, Inc., 238 Ill. 2d 455, 463, 939 N.E.2d 487 (2010), quoting In re W.W., 97 Ill. 2d
       53, 57, 454 N.E.2d 207 (1983)). Further, we are to read a statute as a whole, rather than
       construing operative words or phrases in isolation. Land v. Board of Education of the City of
       Chicago, 202 Ill. 2d 414, 422, 781 N.E.2d 249 (2002) (“[w]ords and phrases should not be
       construed in isolation, but interpreted in light of other relevant portions of the statute so that, if
       possible, no term is rendered superfluous or meaningless”).
¶ 12        The record reveals that the dismissal of Dudley’s suit was in error, because although she
       was abusive toward Lewy, Dudley’s misconduct did not fit within the legislature’s limited
       definition of “Abuse” for purposes of the Act. See 755 ILCS 5/2-6.2 (West 2014). In
       subsection (a) of the elder abuse and neglect provision of the Act, the legislature defined
       “Abuse” (and “Financial exploitation” and “Neglect”), and in subsection (b), the legislature
       extinguished certain common-law rights to receive property, benefit, or other interests. 755

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       ILCS 5/2-6.2(a), (b) (West 2014). The legislature specified that “ ‘Abuse’ means any offense
       described in Section 12-21 or subsection (b) of Section 12-4.4a of the Criminal Code of 1961
       or the Criminal Code of 2012.” 755 ILCS 5/2-6.2(b) (West 2014). Reading the plain language
       as written, the legislature intended to narrow the application of the Act to persons who have
       been convicted of a specific offense that is described and outlawed in one of the two specified
       criminal statutes. See 755 ILCS 5/2-6.2 (West 2014).
¶ 13       The first statute, section 12-21, was repealed by Public Act 96-1551, § 10 (eff. July 1,
       2011), so we have looked directly to the second statute, section 12-4.4a(b), which prohibits the
       specific offense of “(b) Criminal abuse or neglect of an elderly person or person with a
       disability.” 720 ILCS 5/12-4.4a(b) (West 2014). In section 12-4.4a(b) of the Criminal Code of
       2012, the legislature described that offense as follows:
                    “(1) A caregiver commits criminal abuse or neglect of an elderly person or person
                with a disability when he or she knowingly does any of the following:
                        (A) performs acts that cause the person’s life to be endangered, health to be
                    injured, or pre-existing physical or mental condition to deteriorate;
                        (B) fails to perform acts that he or she knows or reasonably should know are
                    necessary to maintain or preserve the life or health of the person, and that failure
                    causes the person’s life to be endangered, health to be injured, or pre-existing
                    physical or mental condition to deteriorate;
                        (C) abandons the person;
                        (D) physically abuses, harasses, intimidates, or interferes with the personal
                    liberty of the person; or
                        (E) exposes the person to willful deprivation.
                    (2) It is not a defense to criminal abuse or neglect of an elderly person or person
                with a disability that the caregiver reasonably believed that the victim was not an
                elderly person or person with a disability.” 720 ILCS 5/12-4.4a(b) (West 2014).
¶ 14       The legislature also provided that this specific type of abuse is a felony offense:
                “(d) Sentence.
                    ***
                    (2) Caregiver. Criminal abuse or neglect of an elderly person or person with a
                disability is a Class 3 felony, unless it results in the person’s death in which case it is a
                Class 2 felony, and if imprisonment is imposed it shall be for a minimum term of 3
                years and a maximum term of 14 years.” 720 ILCS 5/12-4.4a(d) (West 2014).
¶ 15       The administrator of Lewy’s estate has indicated Dudley was charged with four crimes:
       “felony criminal neglect of an elderly person,” “felony aggravated domestic battery,” “felony
       assault with battery of a senior citizen,” and “misdemeanor battery.” The administrator has not
       disclosed statutory citations of the three felony charges that were lodged against Dudley, but it
       appears that the first charge coincides with section 12-4.4a(b)(1) (720 ILCS 5/12-4.4a(b)(1)
       (West 2014)). Nevertheless, it is undisputed that all three of the felony charges were dismissed
       due to a plea agreement. We know from Dudley’s sentencing order entered on March 9, 2016
       (an exhibit to the motion to dismiss Dudley’s claim), that she was convicted of a single crime:
       a battery in violation of section 12-3(a)(1) (720 ILCS 5/12-3(a)(1) (West 2014)). In that
       statute, the legislature stated:


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                    “(a) A person commits battery if he or she knowingly without legal justification by
               any means (1) causes bodily harm to an individual or (2) makes physical contact of an
               insulting or provoking nature with an individual.
                    (b) Sentence.
                    Battery is a Class A misdemeanor.” 720 ILCS 5/12-3 (West 2014).
¶ 16       We find no overlap in the language of the statute that prohibits “Criminal abuse or neglect
       of an elderly person or person with a disability” (720 ILCS 5/12-4.4a(b) (West 2014)) and the
       language of the statute that prohibits “Battery” (720 ILCS 5/12-3 (West 2014)). The Act
       expressly incorporated “any offense described in *** subsection (b) of section 12-4.4a of ***
       the Criminal Code of 2012” (755 ILCS 5/2-6.2(a) (West 2014)), which is “Criminal abuse or
       neglect of an elderly person or person with a disability” (720 ILCS 5/12-4.4a(b) (West 2014)),
       not the offense described in section 12-3, which is “Battery” (720 ILCS 5/12-3 (West 2014)).
       Statutory language itself is the best indication of legislative intent. Burke v. 12 Rothschild’s
       Liquor Mart, Inc., 148 Ill. 2d 429, 441-42, 593 N.E.2d 522 (1992) “Where a statute lists the
       things to which it refers, there is an inference that all omissions should be understood as
       exclusions, despite the lack of any negative words of limitation.” Burke, 148 Ill. 2d at 442;
       Bridgestone/Firestone, Inc., 179 Ill. 2d at 152 (expressio unius est exclusio alterius means the
       explicit mention of one thing is the exclusion of something else). The legislation provides that
       the elder abuse and neglect provision of the Act is triggered by a specific felony conviction or
       convictions for the mistreatment of an elderly person or person with a disability, not by a
       misdemeanor battery conviction, as the legislature did not include the offense of “Battery” in
       the statute.
¶ 17       Thus, while the trial judge’s ruling reflects the spirit of the Act to address the appalling
       mistreatment of elderly or disabled individuals, 2 the plain language of the Act did not
       encompass Dudley’s conviction for misdemeanor battery of her elderly client. The statute is in
       derogation of Dudley’s common-law right to compensation from Lewy’s estate, and we must
       adhere to the principle that when a statute is penal in nature, it is not to be extended by
       inference. Acme Fireworks Corp. v. Bibb, 6 Ill. 2d 112, 119, 126 N.E.2d 688 (1955); My
       Pillow, Inc., 2018 IL 122487, ¶ 18 (statutes in derogation of the common law are to be strictly
       construed). Whether the statute should be broadened is a matter for the legislature. Because it
       is improper for a court to alter plain statutory language (Bridgestone/Firestone, Inc., 179 Ill. 2d
       at 149), we reverse the trial judge’s decision to dismiss Dudley’s quantum meruit claim against

           2
            According to the American Psychological Association, “[w]hen elder abuse happens, family, other
       household members, or paid caregivers are usually the abusers.” Am. Psychological Ass’n, Elder
       Abuse and Neglect: In Search of Solutions 2 (2012), http://www.apa.org/pi/aging/resources/guides/
       elder-abuse.pdf (last visited Oct. 23, 2018) [https://perma.cc/6HB6-KD83]. According to the National
       Clearinghouse on Abuse in Later Life, “Older victims may be abused by intimate partners, adult
       children, grandchildren, or other family members, caregivers, or persons in positions of authority.”
       Nat’l Clearinghouse on Abuse in Later Life, Rural Domestic and Sexual Abuse Program Advocates:
       Making a Difference in the Lives of Older Survivors of Abuse 6 (2013), http://www.ncall.us//
       FileStream.aspx?FileID=85 (last visited Oct. 23, 2018) [https://perma.cc/9E7Z-CWLQ]. In addition,
       “[a] 2010 study found that 47% of participants with dementia had been mistreated by their caregivers.
       Of them, 88.5% experienced psychological abuse, 19.7% experienced psychological abuse, and 29.5%
       experienced neglect.” What We Do, Nat’l Ctr. on Elder Abuse, https://ncea.acl.gov/
       whatwedo/research/statistics.html (last visited Oct. 23, 2018) [https://perma.cc/B74T-BUEQ].

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       Lewy’s estate on the basis of this statute, and we remand for further proceedings as to the
       claim.

¶ 18      Reversed and remanded.

¶ 19        JUSTICE GORDON, specially concurring:
¶ 20        I agree with the majority that the Act does not bar plaintiff’s claim seeking quantum meruit
       compensation from the estate of Alice Lewy, deceased. However, I must write separately, as
       plaintiff may be barred from recovering under a quantum meruit claim under the doctrine of
       “unclean hands” because she acted in bad faith through her conduct toward the decedent in
       striking her. The doctrine of “unclean hands” precludes a party from taking advantage of its
       own wrong. Long v. Kemper Life Insurance Co., 196 Ill. App. 3d 216, 218-19 (1990). It is an
       equitable doctrine that bars relief when the party seeking that relief is guilty of misconduct in
       connection with the subject matter of the litigation. Thomson Learning, Inc. v. Olympia
       Properties, LLC, 365 Ill. App. 3d 621, 634 (2006). The doctrine only applies when the party’s
       misconduct rises to a level of fraud or bad faith. Thomson, 365 Ill. App. 3d at 634. The court
       must look to the intent of a party to determine whether it acted with “unclean hands.” Thomson,
       365 Ill. App. 3d at 634. The doctrine is only available when the misconduct was “toward the
       party against whom relief is sought and *** connected with the transaction at issue in the
       litigation.” Zahl v. Krupa, 365 Ill. App. 3d 653, 658 (2006).
¶ 21        It would be up to the trial court to determine at trial whether plaintiff’s conduct was of such
       a sufficiently serious nature so as to preclude the award of equitable relief. It would not be fair
       to award a caregiver money for taking care of an elderly person if that caregiver abused that
       elderly person. As a result, I would remand to the circuit court of Cook County with
       instructions to have a trial on the quantum meruit issue. See Ellis v. Photo America Corp., 113
       Ill. App. 3d 493 (1983).




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