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                               Appellate Court                          Date: 2018.09.25
                                                                        09:32:28 -05'00'




                   Johnson v. Filler, 2018 IL App (2d) 170923



Appellate Court    LARRY JOHNSON, MARJORIE MOORE, and STEVEN
Caption            JOHNSON, Plaintiffs, v. JAY K. FILLER, FILLER AND
                   ASSOCIATES, DAVID O’BRIEN, JAMES SCHULZ JR., and
                   CAROLYN SCHULZ and JULIE SPIERS, Individually and as
                   Executors and Beneficiaries of a Purported Last Will and Testament
                   of Lawrence A. Johnson, Deceased, Defendants (Steven Johnson,
                   Plaintiff-Appellant; Jay K. Filler and Filler and Associates,
                   Defendants-Appellees).



District & No.     Second District
                   Docket No. 2-17-0923



Filed              August 2, 2018
Rehearing denied   August 31, 2018



Decision Under     Appeal from the Circuit Court of McHenry County, No. 15-L-163; the
Review             Hon. Michael A. Caldwell, Judge, presiding.



Judgment           Affirmed.


Counsel on         Peter Thomas Smith and Jeffrey A. Meyer, of Klein, Stoddard, Buck
Appeal             & Lewis, LLC, of Sycamore, for appellant.

                   Daniel F. Konicek and Amanda J. Hamilton, of Konicek & Dillon,
                   P.C., of Geneva, for appellees.
     Panel                    JUSTICE SCHOSTOK delivered the judgment of the court, with
                              opinion.
                              Justices Zenoff and Jorgensen concurred in the judgment and opinion.


                                               OPINION

¶1         This case involves a family of five children whose parents owned substantial amounts of
       farmland in McHenry County. The mother preceded the father in death. After the father died,
       three children filed a probate action (against the other siblings, an accountant, and an
       attorney) contesting the father’s will and trust and asserting other civil claims. The subject of
       this appeal is a claim for aiding and abetting tortious interference with inheritance
       expectancy, which was filed by one of the children, Steven Johnson, against the attorney, Jay
       K. Filler, who prepared the will and trust that was the subject of the probate action.
       Following a settlement between the siblings in the probate action, the trial court dismissed
       Steven’s claim against Filler. Steven appeals from that order. We affirm.

¶2                                           BACKGROUND
¶3         Lawrence and Ruth Johnson had five children: Larry, Marjorie, Steven, Carolyn, and
       Julie. Lawrence and Ruth each owned a one-half interest as tenants in common in 410 acres
       of farmland in McHenry County, known as Johnson Farms, which they had titled in a trust. A
       116-acre parcel was known as the “Home Farm.” Ruth died on July 28, 2001. Under the
       terms of Ruth’s trust, she left her one-half interest in Johnson Farms to her children with a
       life estate for Lawrence. Ruth’s trust further specified that, upon Lawrence’s death, Steven
       would own Ruth’s one-half interest in the Home Farm, and the remaining interest in Johnson
       Farms was to be distributed to all five children equally. Ruth’s trust named Lawrence and
       Carolyn as cotrustees. Ruth’s trust named Lawrence as executor and “Carolyn *** and ***
       Larry *** each in the order named, as [successor] executor.”
¶4         The record indicates that Lawrence had a will dated October 17, 2011. In that will, there
       was a provision titled “Article 2, Gifts on My Death.” Under section 2.1 of article 2, titled
       “Gifts of Tangible Personal Property,” Lawrence bequeathed all his tangible personal
       property in equal shares to all his children. Under section 2.2, titled “Gift of Balance,”
       Lawrence, after making other specific bequests, stated as follows:
                    “C. I give the balance of my estate equally among my children Julie ***, Carolyn
               ***, Marjorie ***, and Larry ***.
                    D. I have intentionally not provided for distribution under this Will for my son
               Steven ***, as I have made substantial gifts to him over the years and *** feel that he
               has been fairly and adequately compensated.”
¶5         On June 11, 2013, Lawrence executed a quitclaim deed, drafted by Filler, conveying his
       one-half interest in the Home Farm to his grandson, James Schulz Jr. (Carolyn’s son). At
       about the same time, Lawrence attempted to sell Ruth’s one-half interest in the Home Farm,
       conveyed under Ruth’s trust, to James. The record contains two letters related to this
       attempted conveyance. In a June 17, 2013, letter from Filler to Larry, Filler stated that he had
       multiple conversations with Lawrence regarding the sale of the Home Farm to James, that

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       there was a bona fide appraisal of Ruth’s one-half interest, and that Lawrence was requesting
       that Larry either consent to the sale or resign as cotrustee of Ruth’s trust. In a June 27, 2013,
       letter from Filler to Larry’s attorney, Filler relied on language in Ruth’s trust that gave the
       trustees the power to sell any real property contained in the trust. Filler stated in the letter
       that, under that provision, he “believe[d] the Trustees do, in fact, have power to sell the
       property as proposed.” Filler also stated that, since the other one-half interest (Lawrence’s
       interest) was not going to be conveyed to Steven, the sale of Ruth’s share to James was “a
       logical step to avoid future conflict.” However, Larry did not agree, and the sale was never
       consummated.
¶6         In a last will and testament dated August 22, 2013, drafted by Filler, Lawrence revoked
       any prior wills and codicils. Lawrence then bequeathed all his farming equipment and
       machinery to James. All the remaining personal property was bequeathed to Julie and
       Carolyn. In his trust, also dated August 22, 2013, Lawrence, after making other specific
       bequests, left the remainder of his trust estate to Julie and Carolyn, and “intentionally omitted
       any distribution hereunder to my children, Marjorie ***, Larry ***, and Steven, as they have
       chosen lifestyles apart from mine.” Lawrence died on October 2, 2014.
¶7         On May 22, 2015, Larry, Marjorie, and Steven filed a complaint against Carolyn, Julie,
       and James, alleging claims based on undue influence, tortious interference with expectancy,
       aiding and abetting tortious interference with expectancy, conspiracy, breach of fiduciary
       duty, rescission, and constructive fraud. The complaint also alleged claims for aiding and
       abetting tortious interference with inheritance expectancy and legal malpractice against
       Filler. Following motions and argument, the complaint, as well as first and second amended
       complaints, were dismissed.
¶8         About the same time that Steven filed his May 2015 complaint, he filed a petition in a
       consolidated probate action, challenging the validity of the 2013 will and trust. On February
       28, 2017, Steven entered into a settlement agreement with Carolyn, Julie, and James and
       dismissed with prejudice his petition in the probate action and his claims in the present action
       against Carolyn, Julie, and James. However, the agreement specifically reserved Steven’s
       claims against Filler and David O’Brien, Lawrence’s accountant and financial adviser.
¶9         On February 10, 2017, Steven filed a third amended complaint, separate from Larry and
       Marjorie, the dismissal of which is the subject of this appeal. Steven’s third amended
       complaint stated claims against Filler and O’Brien. This appeal concerns count I, a claim
       against Filler for aiding and abetting Carolyn’s tortious interference with inheritance
       expectancy. Specifically, Steven alleged that Carolyn tortiously interfered with his
       inheritance expectancy by exerting undue influence over Lawrence, causing Lawrence to
       (1) convey his one-half interest in the Home Farm to James, (2) execute the 2013 will that
       disinherited Steven, and (3) attempt to sell Ruth’s interest in the Home Farm to James.
       Steven alleged that Filler aided and abetted Carolyn’s tortious interference with his
       inheritance by (1) drafting the 2013 will, (2) preparing the quitclaim deed granting
       Lawrence’s one-half interest in the Home Farm to James, and (3) preparing the paperwork
       related to the attempt to sell Ruth’s one-half interest in the Home Farm to James.
¶ 10       On February 24, 2017, Filler filed a motion to dismiss the third amended complaint
       pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West
       2016)). Filler argued that damages was an element of a claim for tortious interference with
       inheritance expectancy and that Steven could not prove damages because he had already

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       been completely disinherited in the 2011 will. Filler also adopted arguments that he set forth
       in a motion to dismiss the claims against him in a third amended complaint filed by Larry
       and Marjorie. The adopted arguments were that Steven failed to state a cause of action where
       he did not allege either that Filler knew that Carolyn was exerting undue influence over
       Lawrence or that Filler knowingly assisted her in the alleged activity. Specifically, there were
       no facts showing how Filler would have acquired the requisite knowledge or how Filler knew
       that Lawrence was susceptible to undue influence. Additionally, Filler argued that the
       complaint should be dismissed because there were no factual allegations that Carolyn
       engaged in any conduct or made any statements to Lawrence that would have coerced him
       into executing the 2013 will. Finally, Filler argued that dismissal was also appropriate
       because the settlement in the probate case precluded the present claim.
¶ 11       On March 28, 2017, Steven filed a response to Filler’s motion to dismiss count I of his
       third amended complaint. Steven argued that his complaint adequately alleged the elements
       of his claim. Steven further argued that the probate settlement did not preclude his claim
       because he specifically reserved the right to pursue it. Steven also disagreed with Filler’s
       assertion that Steven was disinherited in the 2011 will. Steven argued that, under the 2011
       will, he was still entitled to a one-fifth share of his father’s personal property.
¶ 12       On April 25, 2017, a hearing was held on Filler’s motion to dismiss. A transcript of that
       hearing is not included in the record on appeal. However, following the hearing, the trial
       court took the matter under advisement. On July 18, 2017, the trial court granted the
       dismissal on three different bases. First, the trial court found that Steven failed to state a
       claim because there were no allegations that Filler was directly responsible for any undue
       influence, fraud, or duress. Next, relying on Cherney v. Soldinger, 299 Ill. App. 3d 1066
       (1998), the trial court found that the claim was barred by the settlement in the probate case.
       Finally, the trial court found that Filler owed no duty because what happened to Steven
       occurred two years prior to Filler’s involvement in the case—an implicit finding that Steven
       was completely disinherited in the 2011 will. The trial court subsequently denied Steven’s
       motion to reconsider and entered a finding under Illinois Supreme Court Rule 304(a) (eff.
       Mar. 8, 2016) that there was no just reason to delay enforcement or appeal of the order.
       Thereafter, Steven filed a timely notice of appeal.

¶ 13                                           ANALYSIS
¶ 14       On appeal, Steven argues that the trial court erred in granting Filler’s motion to dismiss
       count I of his third amended complaint. Specifically, Steven argues that the trial court erred
       in finding that (1) count I should be dismissed for failing to allege that Filler himself
       committed acts of undue influence, fraud, or duress; (2) the claim was barred by the
       settlement agreement in the probate case; and (3) Steven was disinherited in the 2011 will.
       Finally, Steven argues that his claim sufficiently stated all the elements of his cause of action.
       We will first address this last argument, as the issue is dispositive of this appeal.
¶ 15       A motion to dismiss under section 2-615 of the Code (735 ILCS 5/2-615 (West 2016))
       challenges the legal sufficiency of a complaint, based on facial defects of the complaint.
       Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 382 (2004). A trial court should grant a
       section 2-615 motion to dismiss only if “it is clearly apparent that no set of facts can be
       proved that would entitle the plaintiff to relief.” Pooh-Bah Enterprises, Inc. v. County of
       Cook, 232 Ill. 2d 463, 473 (2009). A court must accept as “true all well-pleaded facts and all

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       reasonable inferences that may be drawn from those facts.” Id. This court conducts a de novo
       review of a trial court’s ruling on a motion to dismiss. U.S. Bank National Ass’n v. Clark, 216
       Ill. 2d 334, 342 (2005). While allegations in the complaint are viewed in the light most
       favorable to the plaintiff, the decision to dismiss a case may be affirmed on any basis
       contained in the record, “whether or not the trial court relied on that basis or its reasoning
       was correct.” Erie Insurance Exchange v. Compeve Corp., 2015 IL App (1st) 142508, ¶ 16.
¶ 16        In count I, Steven alleged that Filler aided and abetted Carolyn’s tortious interference
       with his inheritance. In order to state a claim for aiding and abetting, a plaintiff must allege
       the following: (1) the party whom the defendant aided performed a wrongful act that caused
       an injury; (2) the defendant was generally aware of his role as part of the overall or tortious
       activity when he provided the assistance; and (3) the defendant knowingly and substantially
       assisted the principal violation. Wolf v. Liberis, 153 Ill. App. 3d 488, 496 (1987). A plaintiff
       cannot merely paraphrase the elements of a cause of action in conclusory terms but must
       plead specific facts to support the cause of action. Thornwood, Inc. v. Jenner & Block, 344 Ill.
       App. 3d 15, 29 (2003).
¶ 17        In Thornwood, the reviewing court reversed the dismissal of a claim of aiding and
       abetting a breach of fiduciary duty. Id. at 29-30. The plaintiff, Thomas Thornton, had sued
       the defendant law firm, Jenner & Block, as well as his ex-business partner, James Follensbee,
       after he had been excluded from a profitable business deal. Id. at 18. Specifically, Thornton
       and Follensbee had formed a partnership to develop Thornton’s farm as a residential
       community and golf course. Id. Initial attempts by Follensbee to work with the Professional
       Golfers Association (PGA) to have the course developed as an official PGA course, which
       would have significantly increased the value of the parties’ investments, were unsuccessful.
       Id. at 19. After Follensbee had notified Thornton that the PGA’s “ ‘involvement in the
       development project was not feasible,’ ” Follensbee secretly continued to negotiate a deal. Id.
       Follensbee retained Jenner & Block to help him buy out Thornton’s partnership interest and
       negotiate with the PGA and other investors. Id. at 20. Jenner & Block drafted an agreement
       under which Follensbee acquired Thornton’s interest in the partnership. Id. Four years later,
       Thornton found out about Follensbee’s negotiations and brought suit. Id. at 21.
¶ 18        In discussing the requirements to state a claim against Jenner & Block for aiding and
       abetting its client’s breach of fiduciary duty, the court observed:
                “Certainly *** mere receipt of copies of letters authored by Follensbee, which expose
                his breach of fiduciary duty, probably does not constitute aiding and abetting under
                Illinois law. Here, however, Thornton alleges more. He alleges that Jenner & Block
                aided and abetted by knowingly and substantially assisting Follensbee in breaching
                his fiduciary duty by[:] (1) communicating the competitive advantages available to
                the Partnership *** to other parties, but specifically not to Thornton; (2) expressing
                Follensbee’s interest in purchasing Thornton’s interest in the Partnership and
                negotiating the purchase of that interest without disclosing to Thornton the continued
                negotiations ***; (3) reviewing and counseling Follensbee with regard to the
                production of investment offering memoranda, financial projections, and marketing
                literature, which purposely failed to identify Thornton as a partner; and (4) drafting,
                negotiating, reviewing, and executing documents, *** relating to the purchase of
                Thornton’s interest *** with knowledge that Thornton was not aware of [negotiations
                with the PGA]. All of these acts are alleged to have been perpetrated by Jenner &

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               Block while it had knowledge that Thornton and Follensbee were partners, that
               Follensbee had a duty to disclose [plans] to Thornton, and that Follensbee did not
               disclose [plans] to Thornton despite having the opportunity and duty to do so.” Id. at
               29.
       The Thornwood complaint thus adequately alleged that Jenner & Block (1) had specific
       knowledge of the tortious acts Follensbee was committing against Thornton, (2) knew that
       Thornton was not aware of those tortious acts, and (3) was actively involved in both hiding
       and furthering those tortious acts.
¶ 19       Here, count I of Steven’s third amended complaint failed to state a cause of action against
       Filler for aiding and abetting the alleged tortious interference with his inheritance by
       Carolyn’s undue influence. Steven alleged that Filler (1) knew that Lawrence was
       “susceptible” to undue influence, (2) “should have known” that the conveyance of
       Lawrence’s share in the Home Farm to James was “presumptively fraudulent,” and
       (3) “should have made a reasonable and good faith determination as to whether Carolyn was
       unduly influencing Lawrence.” Steven also alleged that Filler should have obtained
       “independent and competent counsel for Lawrence” to determine if the desire to change the
       will was the result of undue influence. With respect to the attempt to sell Ruth’s one-half
       interest in the Home Farm to James, Steven alleged that Filler, in the June 27 letter, set forth
       a false legal opinion that Larry, as a trustee of Ruth’s trust, could sell Ruth’s interest in the
       Home Farm.
¶ 20       These allegations do not show that Filler knew of the undue influence and substantially
       assisted it. In fact, the allegations imply that Filler did not know of any undue influence but
       would have found out if he had investigated. Further, unlike in Thornwood, there are no
       allegations that Filler actively participated in the alleged tortious activity. In Thornwood, it
       was alleged that Jenner & Block actively concealed information from Thornton in order to
       further the tortious activity. Here, although Filler drafted the 2013 will and other documents
       requested by Lawrence, there are no allegations that Filler actively hid information from or
       made any misrepresentations to either Lawrence or any of the siblings in order to further the
       alleged undue influence. Although Steven alleged that Filler set forth a false legal opinion
       regarding the ability of the trustees of Ruth’s trust to sell Ruth’s interest in the Home Farm,
       the June 27 letter demonstrates no more than Filler’s opinion as to the trustees’ power under
       Ruth’s trust. If in fact this legal opinion was erroneous, we note that the letter was addressed
       to Larry’s attorney, not to Larry or Lawrence directly.
¶ 21       Steven argues that “should have known” is sufficient to allege a claim for aiding and
       abetting. However, recent cases, such as Thornwood, refer to the standard of actual
       knowledge, not constructive knowledge. Id. at 27. Additionally, other courts have rejected
       the notion that constructive knowledge is sufficient to support a claim for aiding and
       abetting. Barker v. Henderson, Franklin, Starnes & Holt, 797 F.2d 490, 497 (7th Cir. 1986)
       (“A plaintiff’s case against an aider, abetter, or conspirator may not rest on a bare inference
       that the defendant ‘must have had’ knowledge of the facts. The plaintiff must support the
       inference with some reason to conclude that the defendant has thrown in his lot with the
       primary violators.”); Global Cash Network, Inc. v. Worldpay, US, Inc., 148 F. Supp. 3d 716,
       724 (N.D. Ill. 2015) (that a defendant should have known that something was improper “is a
       far cry from knowingly assisting” with tortious activity). Here, even if there were


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       circumstances such that Filler should have suspected undue influence, there are still no
       allegations that Filler substantially assisted it.
¶ 22       Steven cites White v. Moran, 134 Ill. App. 480 (1907), for the proposition that the
       knowledge necessary for aiding and abetting can be either actual or constructive. In that case,
       the court stated:
                    “If [defendants] had actual or constructive knowledge of the fraudulent character
                of the enterprise, and with such knowledge, aided and abetted in its furtherance, and
                by means of false and untrue representations induced appellee to invest therein, they
                were in pari delicto with White in the fraud and deceit practiced and equally liable
                with him for any damages occasioned to appellee.” Id. at 491-92.
¶ 23       We find unpersuasive Steven’s reliance on White. First, no case has ever cited White for
       the proposition that constructive knowledge of wrongful conduct is sufficient to allege a
       claim for aiding and abetting. Further, the allegations in White were based on actual
       knowledge. In White, it was alleged that the defendants (1) made false representations to
       further the fraud and deceit of the principal, (2) knew that the representations were false, and
       (3) made the representations to deceive the plaintiff and induce him to rely on them. Id. at
       481. In this case, unlike in White, there are no allegations that Filler took steps, other than
       drafting documents requested by his client, to substantially assist the alleged tortious activity.
¶ 24       For the above reasons, we affirm the dismissal of count I of Steven’s third amended
       complaint on the basis that it failed to state a cause of action. We may affirm on any basis
       appearing in the record, whether or not the trial court relied on that basis. Erie, 2015 IL App
       (1st) 142508, ¶ 16. Accordingly, we need not address Steven’s additional contentions relating
       to the propriety of the trial court’s reasons for the dismissal.
¶ 25       In so ruling, we include a note of concern. Although we find that count I failed to state a
       cause of action, attorneys should be mindful of situations, as in the present case, where an
       elderly person in the last years of his life requests to disinherit family members and attempts
       to sell a family member’s interest in a property. In such situations, attorneys should proceed
       with the utmost caution.

¶ 26                                      CONCLUSION
¶ 27       For the foregoing reasons, the judgment of the circuit court of McHenry County is
       affirmed.

¶ 28      Affirmed.




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