                                         2014 IL App (1st) 132834
                                             No. 1-13-2834
                                    Opinion filed November 26, 2014
                                                                       Third Division
     ______________________________________________________________________________

                                                IN THE

                                  APPELLATE COURT OF ILLINOIS

                                           FIRST DISTRICT

     ______________________________________________________________________________

                                                )
                                                     Appeal from the Circuit Court
     PATRICK L. RUCKER,                         )
                                                     of Cook County.
                                                )
           Plaintiff-Appellee,                  )
                                                )
                                                     No. 04 CH 2270
     v.                                         )
                                                )
     WILLIE JAMES RUCKER,                       )
                                                     The Honorable
                                                )
                                                     Mosche Jacobius,
           Defendant-Appellant.                 )
                                                     Judge, presiding.
                                                )
     ______________________________________________________________________________

            JUSTICE HYMAN delivered the judgment of the court, with opinion.
            Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.


                                                 OPINION

¶1          Plaintiff Patrick Rucker accused his uncle, defendant Willie Rucker, of mishandling the

     guardian estate established after the death of Patrick's mother. Patrick brought suit alleging

     breach of fiduciary duty, equitable accounting, negligence, and conversion. After a bench trial,

     the trial court found in Patrick's favor on two counts: breach of fiduciary duty and negligence.

     The court entered judgment against Willie for $20,000.

¶2           Willie contends the trial court erred in finding he breached his fiduciary duty and was

     negligent as guardian of Patrick's estate by retaining all rents and profits derived from estate
     1-13-2834


     property, failing to provide an accounting, and not properly transferring the estate property when

     Patrick reached majority. Willie also contends Patrick failed to establish he suffered any

     quantifiable actual damages or any damages at all as a result of Willie's guardianship. Willie

     further contends the court improperly denied both his motion to dismiss and later motion for

     summary judgment.

¶3           The trial court properly held Willie acted negligently as guardian of Patrick's estate. As a

     result of Willie's breach of his duty to provide accountings of the estate, there is no proof of how

     he managed Patrick's estate. Plaintiff suffered damages as result of Willie's conduct, particularly

     his failure to document expenditures. We uphold the trial court's damages award for $20,000.

     The damages are not purely speculative, as Willie suggests, but rather based on the record.

¶4                                             BACKGROUND

¶5           In February 1993, Patrick's mother and Willie's sister, Anna Rucker died. Patrick was 14

     years old. Willie was appointed guardian of Patrick's estate and charged with administering the

     estate in accordance with the Illinois Probate Act of 1975 (755 ILCS 5/1-1 et seq. (West 1992)).

     Patrick's grandmother and Willie's mother, Shirley Rucker, became guardian over Patrick's

     person. In re Estate of Rucker, No. 93 PG 5529 (Cir. Ct. Will Co.). Patrick's $75,000 estate

     included $50,000 in cash proceeds from a life insurance policy and $25,000 of real estate located

     in University Park, Illinois (first property).

¶6           During his minority Patrick lived with his grandmother and his care was provided for by

     $300 in social security income a month and by Willie, who received $50,000 on behalf of

     Patrick. Willie gave Patrick $20,000 of the $50,000 as a lump sum when he reached the age of

     majority (18). The following disbursements, totaling $21,600, were also made: (i) $6,200 in

     funeral expenses for Anna Rucker; (ii) $5,500 in educational expenses for Patrick; (iii) $1,800


                                                      -2-
       1-13-2834


       bond to act as guardian; (iv) $3,600 car 1 for Patrick; and (v) $4,500 car 2 for Patrick. Willie

       maintains the remaining amount, totaling less than $10,000, was used up in living expenses and

       to pay legal defense fees (while Patrick was still a minor, he was charged in a murder case).

¶7            As guardian, Willie rented out the first property. Willie claimed the property never turned

       a profit and all rental income went toward the mortgage and expenses. (The property was sold

       after this case began, netting a profit of about $10,000, which Willie claims was given to

       Patrick's heir due to Patrick's death on May 15, 2004.)

¶8            Patrick alleged that Willie used $20,000 from the estate to purchase an income property

       located in Phoenix, Illinois (second property). The second property was purchased in Willie's

       name and is rental property. Willie denied estate funds were used to purchase the property.

¶9            Patrick moved into the second property on November 15, 2003, and paid rent to Willie.

       Patrick claimed Willie threatened to evict him from the second property if he did not keep

       current on his rental payments. (On January 7, 2011, a foreclosure lien was filed regarding the

       second property.)

¶ 10          Willie never charged Patrick's estate administration fees. He contends he used personal

       funds to pay the mortgage on the first property and for food, clothing, and everyday expenses for

       Patrick.

¶ 11          Willie admitted he never filed an accounting as guardian of Patrick's estate, claiming he

       was unaware this duty existed. When Patrick turned 21 years old, Willie sought a court order to

       have the guardianship terminated. The record shows that at that time, Patrick never expressed

       dissatisfaction with Willie's administration of his estate. On June 7, 1999, the Will County

       probate court entered an order terminating Willie's guardianship of Patrick's estate. Both Willie




                                                       -3-
       1-13-2834


       and Patrick were present in court. The legal process involving the estate of Patrick Rucker was

       filed, opened, administered, and closed in the Twelfth Judicial Circuit, Will County, Illinois.

¶ 12          In February 2004, Patrick filed a complaint in Cook County against Willie alleging

       conversion, negligence, breach of fiduciary duty, and equitable accounting. Patrick claimed

       Willie breached his fiduciary duty as guardian of his estate by failing to provide an accounting

       from 1993 through 1999 and by willfully using and retaining monies from the estate. Patrick

       claimed Willie retained all rents and profits from the first property and failed to properly transfer

       the property to Patrick when he reached majority. He further claimed that Willie used money

       from Patrick's estate for his own gain, specifically the purchase of the second property and the

       rents derived from it.

¶ 13            Willie filed a motion to dismiss on July 23, 2004. (After Patrick died, the original

       complaint was amended to substitute the plaintiff to Jean Adams, the court-appointed guardian of

       the estate of Elijah Ragland-Rucker, Patrick's son and sole heir. Elijah was born to Shenine

       Ragland, an unmarried woman, on October 4, 2000. Three years later, Patrick signed a voluntary

       acknowledgment of paternity, which was filed with the Department of Healthcare and Family

       Services.) The amended complaint sought an accounting of the estate, imposition of a

       constructive trust, punitive damages, and attorney fees and costs. The court denied Willie's

       motion to dismiss and Willie filed a second motion to dismiss, which the court also denied.

¶ 14          In denying Willie's motions to dismiss, the court found that when the guardianship

       terminated, Patrick was entitled to receive the estate in full, which included all estate property, as

       well as profits, if any, the estate generated. The court found plaintiff alleged sufficient facts to

       sustain the claims against Willie because Willie failed to turn over possession or ownership of

       the estate property to Patrick or the estate's profits when the guardianship terminated.


                                                        -4-
       1-13-2834


¶ 15          On September 6, 2011, Willie filed a motion for summary judgment arguing

       jurisdictional issues and improper venue. Willie also contended plaintiff could not establish

       conversion, negligence, or breach of fiduciary duty in his handling of Patrick's estate. Willie

       attached an affidavit to his motion, attesting he spent a considerable amount of his own money

       on Patrick's care and support and never sought reimbursement from Patrick's estate. Willie

       claimed he did not use $20,000 of Patrick's death benefit proceeds to purchase real estate in

       Phoenix, Illinois, or any other asset belonging to Patrick or his estate for his own benefit. Willie

       detailed the expenses paid out of Patrick's estate. Willie claimed he paid $3,500 towards funeral

       and burial expenses for Anna Rucker. In connection with the Will County probate estate, Willie

       claimed he paid $150 in court filing expenses and $1,800 in surety bond ($300 a year for six

       years). Regarding the first property, Willie claimed he attempted to rent the house to offset the

       cost of its mortgage and expenses and to preserve the asset. He claimed he collected $38,500 in

       rental payments while paying the following expenses: (i) $90,300 in mortgage payments; (ii)

       $11,100 in utility payments; (iii) $2,200 for the repair of water pipes; (iv) $1,800 for the

       recarpeting of the entire house after water damage; (v) $3,200 for drywall and painting of the

       entire house because of water damage; and (vi) an unspecified sum in maintenance and repair of

       the property. Willie alleged that all of the expenses related to the broken water pipes and water

       damage were paid after Patrick reached 18 and had been given $20,000 of the death benefit

       proceeds. Willie further claimed he paid $5,500 in educational costs for 1993 through 1994 and

       $11,000 in attorney fees in early 1996 when Patrick was charged in connection with a criminal

       case in Cook County. Willie attached affidavits from his mother and Patrick's grandmother,

       Shirley Rucker, and Willie's sisters, Bobbie L. Rhone and Linda Rucker-Gatson, supporting his




                                                       -5-
       1-13-2834


       position that he committed no wrongdoing in administering Patrick's estate and used all of the

       estate money for Patrick's care and support.

¶ 16          After briefing and argument, the trial court denied defendant's motion for summary

       judgment. The court found Willie waived his right to object to venue by failing to file a motion

       to transfer. The court further found genuine issues of material fact existed as to his alleged

       breach of fiduciary duty because Willie did not address the allegation that he used rental

       proceeds from the first property for his own benefit or comingled estate funds with his own.

       Willie also did not contest Patrick's allegation that he failed to turn over estate property to

       Patrick on the termination of the guardianship. The court found it significant that despite

       claiming he did not use estate funds to purchase the second property, Willie did not offer any

       evidence to support his claim. The court found that Willie's affidavit specifically accounted for

       only $36,450 of the $50,000 in cash funds that Willie acknowledged were part of Patrick's estate

       and the disbursal of the remaining sum "leaves open an important question."

¶ 17          In rejecting Willie's argument that he was entitled to summary judgment because the

       action for accounting should have been filed in Will County, the court held it had jurisdiction to

       hear the case. The trial court noted that this case came four years after the dismissal of the Will

       County probate case and involved factual and legal issues "entirely distinct" from those in the

       Will County case.

¶ 18          Regarding the negligence claim, the court identified "significant questions" that

       precluded summary judgment. Specifically, whether Willie breached his fiduciary duties to

       Patrick, whether he used rental proceeds from the first property for his own benefit, whether he

       comingled estate funds with his own, and whether Willie's expenditure of Patrick's estate funds

       was proper.    Regarding the conversion claim, the court found questions of material fact


                                                      -6-
       1-13-2834


       concerning whether Elijah had a right to the first and second property, whether Willie had

       authority to assume control or ownership over either of those properties, and whether Willie

       misappropriated funds from Patrick's estate.

¶ 19                                                  Trial

¶ 20          Jean Adams, the special administrator appointed by the court as guardian of Elijah's

       estate, testified as follows: The known assets of Patrick's estate consisted of $50,000 in insurance

       proceeds and the first property. Based on Patrick's original complaint and conversations she had

       with his attorney, the second property was also part of Patrick's estate. She acknowledged that

       Patrick was present in court when Willie's guardianship was terminated and did not express any

       dissatisfaction. Adams opined that Willie breached his fiduciary duty to Patrick (and, thus,

       Elijah) by failing to file an accounting with the court and failing to transfer the properties to him

       when he reached majority.

¶ 21          The evidence at trial established that Willie graduated from Marquette University School

       of Dentistry in 1985, has been on the Dental Advisory Board at Marquette since 1989, and is a

       16-year member of the board of trustees at Augustana College. Willie endowed a $50,000

       Rucker Family Scholarship at Augustana.

¶ 22          At trial, Willie testified that after Anna died, Patrick lived with Shirley at a property

       owned by Willie. Before Anna's death, Shirley paid Willie monthly rent equivalent to the

       mortgage payment. After Anna's death, Shirley stopped paying him rent. Willie testified he took

       Patrick on trips after Anna died and provided Shirley money so she could take him on trips too.

       Willie's brother, a former NFL player, and Willie took Patrick on trips to Arizona to watch

       professional football games. Willie testified he tried to provide Patrick with a good life.




                                                        -7-
       1-13-2834


¶ 23          Willie presented no documentation of the expenses he paid out of Patrick's estate. He

       testified that when he received the $50,000 insurance proceeds in 1994, he placed the proceeds in

       Patrick's name in an account at Bank Calumet. Willie testified he did not have an account at

       Bank Calumet and never transferred money from Patrick's account to his own. Shirley testified

       that whenever she needed anything for Patrick, she asked Willie and he provided her the funds.

       Willie wrote checks to her which she deposited into her own account at Bank Calumet.

¶ 24          The court found it significant that Willie gave two "divergent" explanations of his

       expenditures from the insurance proceeds he deposited into Patrick's bank account. During

       adverse examination, Willie testified he withdrew $20,000 from Patrick's account in November

       1994. Of the $20,000, he used (i) $5,500 for one year of tuition at Marian Catholic High School;

       (ii) $6,200 to pay for Anna's funeral expenses; and (iii) $8,200 to reimburse Shirley for Patrick's

       expenses. Willie never received any invoices or receipts for expenses Shirley paid on behalf of

       Patrick. During the presentation of his case-in-chief, Willie testified that when he took out

       $20,000 from Patrick's account, he reimbursed himself the $6,200 he had paid for Anna's funeral

       expenses and gave the balance to Shirley for Patrick's living expenses. He testified he had no set

       formula for how he reimbursed Shirley. Willie withdrew $13,000 from Patrick's account in

       December 1995. He testified he was unsure what he did with those funds. He speculated that he

       used them to pay for private school tuition and that he gave the balance to Shirley for living

       expenses; however, he acknowledged that he had just given Shirley a substantial amount a month

       or two before. Willie further acknowledged that in February 1995, he withdrew $6,000 from

       Patrick's estate in two $3,000 increments. Again, he could not recall what he did with the funds.




                                                       -8-
       1-13-2834


¶ 25             Willie testified that when Patrick turned 18, he gave him $20,000, even though the

       balance of Patrick's account at that time was only $11,266.32. Willie testified he may have given

       Patrick $20,000 from his own money.

¶ 26             The court also found it significant that Willie gave conflicting testimony about the money

       he expended to hire an attorney to defend Patrick against criminal charges. At one point, Willie

       testified he expended $25,000 from his personal funds for Patrick's defense. He also testified that

       his brother, Keith, contributed $5,000; Shirley and his sister contributed $5,000; he contributed

       $12,000 from his own personal funds and some of the legal expenses were paid out of Patrick's

       estate.

¶ 27             Concerning the first property, Willie testified the expenses exceeded the rental income of

       $38,000. He acknowledged, however, that he never deposited the rental income into Patrick's

       account. The property was never made a part of Patrick's estate; instead, it was sold by Shirley

       in 2006 with an administrator's deed. Shirley testified that of the $11,600 in net proceeds from

       the sale, she put $10,000 in trust for Elijah's benefit and kept $1,600 as reimbursement.

¶ 28             Evidence was presented regarding certain cars. When Anna died, she left a Chevrolet

       Corsica in her estate. Shirley totaled the car in an accident. Willie testified he did not lodge a

       claim for insurance reimbursement on behalf of Patrick when the car was totaled. He testified he

       gave Shirley money to purchase two cars for Patrick. Shirley testified each car cost

       approximately $3,000. Patrick totaled the first car and the second car was abandoned as

       undriveable.

¶ 29             Regarding the second property, Willie testified he is a real estate investor and purchased

       the property using his own funds, withdrawn from Pinnacle Bank. As proof, he offered a

       cashier's check dated February 9, 1995, issued by Pinnacle Bank for the amount $11,749.89. He


                                                        -9-
       1-13-2834


       testified the check was for a down payment on the second property. Willie acknowledged that he

       promised Patrick he would turn over the second property to him if Patrick could prove to be

       mature enough to care for and manage it. Willie testified that never happened. Based on this

       evidence, the court held there was insufficient evidence to substantiate plaintiff's claim that the

       second property was part of Patrick's estate. In doing so, the court acknowledged that $13,000

       was withdrawn from Patrick's estate the month before Willie purchased the second property. The

       court found, however, that that fact alone could not substantiate plaintiff's claim that the second

       property was part of his estate.

¶ 30          Elijah's mother testified that she told Adams the Rucker family was taking good care of

       Elijah and she did not want to be part of the litigation.

¶ 31          Finding in favor of plaintiff after careful consideration, the court held Willie failed to

       meet his burden to show he fulfilled his fiduciary duty to preserve and protect Patrick's estate.

       The court found it significant that Willie failed to file an accounting, did not terminate the

       guardianship relationship until Patrick turned 21, had "no idea how he expended Patrick's

       assets," and failed to "marshal Anna's residence into Patrick's estate." The court found Willie's

       testimony that he cared for Patrick and expended his own money on Patrick's behalf credible.

       And, although Willie's actions were "laudatory," the trial court held those actions were

       "voluntary gifts to Patrick" and not proof that Willie fulfilled his fiduciary duties as guardian of

       Patrick's estate. The court held that Elijah, as Patrick's heir, "is entitled to inherit and enjoy

       Patrick's estate, which should have been preserved and vouchsafed by Willie."

¶ 32          Addressing the specific balance of Patrick's estate, the court acknowledged that Patrick

       admitted he received $20,000 out of the estate. The court also gave credence to Willie's

       testimony that he used estate funds to pay $5,500 for Patrick's private school tuition and $6,200


                                                        -10-
       1-13-2834


       for Anna's funeral expenses, despite there being no documentary evidence to support these

       expenditures. The court, however, found that the remaining $18,300 of the insurance proceeds in

       Patrick's estate was mismanaged. Willie provided conflicting testimony as to how it was

       expended and he kept no records regarding how it was managed. The court further found Willie

       improperly failed to bring a claim for Anna's vehicle or to demonstrate how he maximized the

       rental income of the first property. Although no evidence was offered to show the value of these

       assets, the court took them into consideration in making its equitable determination because

       Patrick, as Anna's sole heir, was entitled to have the value of those assets in his estate.

¶ 33           The court found Willie negligent in his management of Patrick's estate and found that he

       breached his fiduciary duties as guardian causing Patrick damages. The court entered judgment

       of $20,000 in favor of plaintiff and against Willie Rucker.

¶ 34                                               ANALYSIS

¶ 35           Willie claims the court erred in finding him guilty of negligence and breach of fiduciary

       duty because the plaintiff failed to establish Patrick suffered any damages from Willie's alleged

       misconduct. Plaintiff argues that as a result of Willie's breach, Elijah as Patrick's heir does not

       have an accurate accounting of his inheritance.

¶ 36                                     Motion for a Directed Finding

¶ 37           Willie argues the court erred in denying his motion for a directed finding at the close of

       plaintiff's case-in-chief.

¶ 38           We review an order disposing of a motion for a directed finding de novo. Evans v.

       Shannon, 201 Ill. 2d 424, 427 (2002). A trial court should grant a motion for a directed finding if

       all of the evidence overwhelmingly favors the movant such that no contrary verdict based on the




                                                        -11-
       1-13-2834


       evidence could ever stand. Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992). On review, all of the

       evidence must be construed in the light most favorable to the nonmoving party. Id.

¶ 39          To prove a claim for negligence, a plaintiff must show the defendant owed a duty to the

       plaintiff, breached that duty, and that the breach caused the plaintiff's injury. Hills v. Bridgeview

       Little League Assoc'n, 195 Ill. 2d 210, 228 (2000). We review de novo, as a question of law,

       whether a duty exists. Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007). Because breach

       of duty and causation constitute findings of fact, we will overturn the trial court's findings only if

       they are against the manifest weight of the evidence. Corral v. Mervis Industries, Inc., 217 Ill. 2d

       144, 151-52 (2005). Should the trial court's conclusion not be based on the evidence but be

       wholly arbitrary and unreasonable, that finding is against the manifest weight of the evidence

       and will be reversed on appeal. Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002).

¶ 40          The parties do not dispute that by virtue of the guardianship relationship, Willie had a

       fiduciary duty to safeguard Patrick's financial assets during his minority.

¶ 41          Plaintiff argues Willie offered no evidence that his transactions on behalf of Patrick were

       fair and equitable in line with his duties as guardian. Willie responds that had he filed a final

       accounting—the nature of his breach—the accounting would have showed that the entire estate

       left to Patrick, and then some, was spent on Patrick's care. Willie contends the damages award of

       $20,000 is not supported by the record. He argues it is speculative and places great weight on

       the fact that the trial court did not specifically state the formula it used to determine the award

       nor identify specific losses the estate suffered as a result of Willie's administration.

¶ 42          Willie admits a fiduciary relationship existed between him and his nephew and that he

       opened himself up to a negligence claim by not filing an accounting. He argues, however, that he

       did not steal or personally profit from Patrick's estate and, therefore, never caused Patrick any


                                                        -12-
       1-13-2834


       damages. Willie argues that at the close of its case-in-chief, plaintiff had not met his burden of

       production regarding one of the elements—damages—and, therefore, because all of the elements

       of plaintiff's claims could not be proven, Willie's motion for a directed finding should have been

       granted.

¶ 43          Willie contends his only failing was not keeping adequate records of how he used the

       estate money and not filing an accounting. Willie's testimony is uncontroverted that all of the

       money spent from the estate was for Patrick's care and benefit. Willie argues the plaintiff bears

       the burden of producing evidence to substantiate the damages and nothing in the record shows he

       enriched himself at the expense of Patrick's estate for $20,000. According to Willie, the

       uncontroverted evidence shows that all of the money from Patrick's estate was spent on Patrick.

¶ 44          Plaintiff lists several large withdrawals as proof of Willie's misconduct, as well as

       Willie's failure to transfer the estate property and profits derived from it to him when the

       guardianship terminated.

¶ 45          The trial court diligently considered Willie's motion for a directed finding and found

       plaintiff offered enough evidence, when viewed in a light most favorable to him. The evidence

       showed Willie made various withdrawals from Patrick's estate and distributed the money to

       different individuals, including himself, for undocumented expenses and reimbursement. Funds

       Willie spent on Patrick's criminal defense, education, and trips were unaccounted for and spent

       without court approval. When Willie terminated his guardianship, he provided no accounting.

       He took no steps to transfer the real property in the estate to Patrick when Patrick reached

       majority or turn over rental income generated by the property.

¶ 46          The trial court's denial of defendant's motion for a directed finding is sufficiently

       supported by the record and, hence, proper.


                                                     -13-
       1-13-2834


¶ 47                                    Motion for Summary Judgment

¶ 48          Willie argues his motion for summary judgment should have been granted because

       plaintiff failed to produce or identify any evidence that supported the allegations of wrongdoing

       and, therefore, there are no genuine issues of material fact in dispute. Willie further contends

       there is no evidence Patrick suffered losses or incurred expenses as a result of Willie's alleged

       wrongdoing.

¶ 49          Summary judgment is proper where there are no genuine issues of material fact and the

       moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2010). The

       trial court may grant summary judgment after considering "the pleadings, depositions,

       admissions, exhibits, and affidavits on file in the case" and construing that evidence in favor of

       the nonmoving party. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Summary judgment aids in the

       expeditious disposition of a lawsuit, but it is a drastic measure that should be allowed only "when

       the right of the moving party is clear and free from doubt." Id. If the plaintiff fails to establish

       any element of his or her claim, summary judgment is appropriate. Pyne v. Witmer, 129 Ill. 2d

       351, 358 (1989). The nonmoving party, however, need not prove his or her case at this

       preliminary stage but must present some factual basis that would support his or her claim.

       Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002). We review the trial court's

       decision to grant summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual

       Insurance Co., 154 Ill. 2d 90, 102 (1992).

¶ 50          The record supports the trial court's conclusion that plaintiff's claims for breach of

       fiduciary duty and negligence presented genuine issues of material fact sufficient to deny Willie's

       motion for summary judgment.




                                                      -14-
       1-13-2834


¶ 51          Concerning the breach of fiduciary duty claim, plaintiff contended Willie's failure to file

       an accounting and his failure to transfer the real estate when Patrick reached majority were the

       most serious breaches. The trial court found Willie's affidavits, accepted as true, were

       insufficient to defeat plaintiff's claims. Willie did not address the allegation that he used rental

       proceeds from the first property for his own benefit or that he comingled estate funds with his

       own personal funds. He did not contest that he failed to transfer the first property to Patrick when

       the guardianship terminated. Additionally, Willie's affidavit only accounted for $36,450 of the

       $50,000 in Patrick's estate, leaving "open an important question regarding the disbursal of the

       remaining sum."

¶ 52          Regarding the negligence claim, the court recounted several issues of material fact,

       including: whether Willie breached his fiduciary duties, whether he used the rental proceeds for

       his own benefit, whether he used estate money to purchase the second property, whether he

       comingled funds, whether he properly turned over the first property to Patrick, and whether his

       claimed expenditures on behalf of Patrick were proper.

¶ 53          Construing the allegations in the complaint in the light most favorable to plaintiff, we

       find the plaintiff stated valid claims. The trial court properly denied Willie's motion for summary

       judgment.

¶ 54                                               Damages

¶ 55          The relationship between a guardian and a ward is equivalent to that of a trustee and a

       beneficiary. In re Estate of Swiecicki, 106 Ill. 2d 111, 117-18 (1985). Accordingly, as guardian,

       Willie had a duty to manage Patrick's estate "with the same degree of vigilance, diligence and

       prudence as a reasonable person would use in managing his own property." Parsons v. Estate of

       Wambaugh, 110 Ill. App. 3d 374, 377 (1982). Once a breach of trust is established, the trustee is


                                                      -15-
       1-13-2834


       liable for: (i) loss or depreciation in value of the trust; (ii) profit made by him through the breach

       of trust; or (iii) profit which would have accrued to the trust absent the breach of trust. In re

       Estate of Halas, 209 Ill. App. 3d 333, 349 (1991). The claimant carries the burden of proving

       damages to a reasonable degree of certainty. Id. Evidence of damages cannot be remote,

       speculative, or uncertain. Id. As a reviewing court, we cannot reverse the trial court's

       determination of damages unless that determination is against the manifest weight of the

       evidence. Id.

¶ 56          We disagree with defendant's suggestion that the trial court's findings as to damages are

       speculative, arbitrary, or unreasonable. Plaintiff provided an adequate basis on which the trial

       court could calculate damages with reasonable certainty. There is no dispute that Patrick's estate

       included $50,000 in insurance proceeds and that Patrick was given $20,000 when he turned 18.

       Concerning the remaining balance, the court accepted Willie's testimony that he used estate

       funds to pay $5,500 for Patrick's school tuition and $6,200 for Anna's funeral expenses, despite

       no documentary evidence supporting these expenditures. And Willie offered no documentary

       evidence of how the remaining $18,300 of the insurance proceeds in Patrick's estate was

       managed. He could not recall with specificity the nature of the expenses related to Patrick's care

       or how the estate assets were used. In addition to the insurance proceeds, the trial court found

       Willie did not properly safeguard the value of the automobiles in the estate. The court believed

       Willie's testimony that he used his own assets to supplement those of Patrick's estate to provide

       for Patrick's care, but decided Willie's actions did not relieve him of his fiduciary duties in

       administering Patrick's estate, specifically, accounting for and safeguarding estate assets. We

       find the trial court's ruling on Willie's liability for damages is not contrary to the law or the




                                                        -16-
       1-13-2834


       weight of the evidence. The court's award of $20,000 is supported by the evidence and, as such,

       must be upheld.

¶ 57                                        Additional Arguments

¶ 58          Additionally, Willie argues that because the allegations of negligence and breach of

       fiduciary duty involved acts that occurred during Patrick's minority, the action should have been

       filed in Will County, where the legal process involving Patrick's estate was filed, administered,

       and closed. Patrick resided in Will County throughout the time of his minority and the first

       property is situated in Will County. Willie contends there was no valid reason for Patrick to file

       in Cook County and, therefore, it amounted to improper forum shopping.

¶ 59          Willie raised his objections to venue and laches in his motion for summary judgment,

       which the court denied. Willie contends that allowing this matter to proceed in Cook County,

       over 10 years after the events complained of allegedly occurred was in effect allowing Cook

       County to act as an appellate court over the Will County court proceedings. The Will County

       court found no negligence or breach of fiduciary duty by Willie in the performance of his duties

       as guardian of Patrick's estate. Willie argues that any objection to his administration of Patrick's

       estate should have been made in Will County and, therefore, the proceedings in Cook County

       were tainted and unfair.

¶ 60          The trial court properly considered, and rejected, defendant's argument. We agree. As the

       trial court made clear, a challenge to the court's jurisdiction should have been brought in a

       separate motion, not in Willie's motion for summary judgment. Additionally, the court

       considered, and denied, Willie's motion to dismiss brought under section 2-619 of the Code of

       Civil Procedure (735 ILCS 5/2-619 (West 2010)). During the adjudication of his motion to

       dismiss, Willie never argued the court lacked jurisdiction.


                                                      -17-
       1-13-2834


¶ 61          Moreover, the court properly found it had jurisdiction to hear the case. The trial court

       held it was not acting as a "reviewing Court of a Will County proceeding," because this case was

       filed over four years after the dismissal of the Will County probate case and involved factual

       claims and legal arguments that were "entirely distinct" from the subject matter of the Will

       County probate case.

¶ 62                                               CONCLUSION

¶ 63          The trial court properly denied defendant's motion for a directed finding and later motion

       for summary judgment finding sufficient evidence was presented supporting plaintiff's claims.

       Following a bench trial, the court properly held defendant acted negligently and breached his

       fiduciary duties as guardian of his nephew's estate. Plaintiff suffered damages as result of

       defendant's conduct. We uphold the trial court's award of $20,000 in favor of plaintiff finding it

       is properly based on facts in the record.

¶ 64          Affirmed.




                                                       -18-
