                                                                               FIFTH DIVISION
                                                                               June 30, 2010




No. 1-09-1273

MICHAEL H. JANOWIAK, Individually,                     )
and as Trustee of the Michael H. Janowiak              )       Appeal from the
Trust Under the Janowiak GST Trust,                    )       Circuit Court of
Dated October 1, 1995,                                 )       Cook County,
                                                       )
       Plaintiff-Appellant,                            )       08 L 585
                                                       )
       v.                                              )       The Honorable
                                                       )       Barbara A. McDonald,
ANGELO F. TIESI,                                       )       Judge Presiding.
                                                       )
       Defendant-Appellee.                             )


                    MODIFIED OPINION UPON DENIAL OF REHEARING

       PRESIDING JUSTICE TOOMIN delivered the modified opinion of the court:

       In this appeal, we review the circuit court’s dismissal of plaintiff’s complaint alleging

causes of action for breach of fiduciary duty and fraud. In the case sub judice, plaintiff alleged

that defendant breached his fiduciary duty to plaintiff as trustee of an irrevocable family trust by

failing to disclose material information concerning the true value of shares owned in the family

business and in securing plaintiff’s release of his fiduciary duties. The circuit court found that

the release barred plaintiff’s claims as defendant had effectively resigned as trustee prior to its

execution and thus defendant did not owe plaintiff a fiduciary duty, nor did defendant commit

any fraud. For the following reasons, we reverse and remand the matter to the circuit court.
1-09-1273

                                          BACKGROUND

       Plaintiff, Michael H. Janowiak, was an employee and principal stockholder of a family

business called Professional Education International, Inc. (PEI), along with his father, Robert

Janowiak, and brother, John Janowiak. Defendant, Angelo Tiesi, was plaintiff’s father’s attorney

for estate and tax planning, and was the trustee of an irrevocable trust, which held the stock of

PEI, and of which plaintiff was a beneficiary. Plaintiff’s father did not provide plaintiff with

financial, strategic or operations information of PEI.

       According to plaintiff, around 1997 plaintiff’s brother John commenced a scheme to

defraud plaintiff of his interest in PEI. Both John and the father, Robert, conspired to portray

PEI’s situation and future as dire and withheld material information to force plaintiff to sell his

shares below their true value. In or about the fall of 2004, upon being informed of poor

prospects for PEI, and the purported value of his shares, plaintiff contacted defendant, his trustee,

attempting to ascertain the true value of his shares. Defendant refused to provide such

information, informing plaintiff he would need the permission of Robert to disclose it. In turn,

defendant resigned as trustee, representing to plaintiff that his resignation was based on a conflict

of interest as Robert’s attorney. In resigning, defendant requested that plaintiff sign a document

under which plaintiff was appointed as successor trustee, and pursuant to which defendant was

released from any liability, which plaintiff later signed.

       Plaintiff maintains that defendant knew that Robert and John were planning to force

plaintiff to sell his shares below value and also possessed material information regarding the

actual value of plaintiff’s shares and the true financial state of PEI. Defendant was also aware of


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transactions by Robert, such as taking excessive compensation, making payments to family

members and engaging in related party transactions which were intended to depress the value of

PEI shares. Further, plaintiff maintains, defendant knew plaintiff was unaware of these facts.

       In or about December 2004, Robert informed plaintiff he would commission a neutral

evaluation of the value of plaintiff’s stock. Subsequently, in May 2005 Robert provided plaintiff

with a report prepared by Friedman & Associates, Ltd. (hereinafter the Friedman report), which

falsely reflected poor prospects for PEI, did not disclose other material information about

transactions impacting PEI and future revenue, and reflected a depressed value of plaintiff’s

shares at $1.01 million. Moreover, when plaintiff’s accountant attempted to review documents

relating to the Friedman report, no documents were provided. According to plaintiff, defendant

was also aware of the Friedman report, and knew that Friedman refused to provide information to

plaintiff’s accountant. However, plaintiff fails to acknowledge how and when defendant became

aware of the Friedman report.

       On June 30, 2005, plaintiff sold his shares for $1.01 million, the value stated in the

Friedman report. Thereafter, Robert amended his will to bequeath all of his shares in PEI to

John, and when he died John received the shares. In July 2006, concerned that he had sold his

shares for a grossly inadequate price, plaintiff ordered his own independent valuation report by

Hilco Enterprise Valuation Services, LLC (Hilco). Hilco’s report found serious flaws in the

Friedman report and determined the value of plaintiff’s shares at the time of sale was actually

$2.924 million. In turn, plaintiff filed suit against defendant, the estate of Robert, PEI, and John.1


       1
           The disposition of the other defendants is not relevant to this appeal.

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       Plaintiff’s first amended complaint alleged claims against defendant in count I for fraud

and in count IV for breach of fiduciary duty. Plaintiff maintains that as a result of defendant’s

failure to disclose the fraud by John and Robert he sold his shares in PEI to Robert for a grossly

inadequate price. The complaint alleged that defendant resigned as trustee in a letter to plaintiff

dated December 8, 2004, and that defendant “sought” the release of all liability on January 17,

2005. Plaintiff further alleged that while he signed the acceptance of office and release after this

date, defendant inserted an effective date of December 31, 2004.

       Defendant moved to dismiss under sections 2-615 and 2-619 of the Illinois Code of Civil

Procedure (735 ILCS 5/2-615, 2-619 (West 2008)) asserting, inter alia, that the release barred

plaintiff’s claims because defendant had resigned before plaintiff signed the release. The circuit

court dismissed count I for fraud and count IV for breach of fiduciary duty, finding that because

defendant had resigned, he did not owe plaintiff any fiduciary duty, including a duty of

disclosure, on the date the release was signed. The circuit court’s order further provided that,

pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)), there was no just reason to delay

enforcement or appeal of the order. The instant appeal followed.

                                            ANALYSIS

       Plaintiff first maintains that the circuit court erred in granting dismissal based on the

release he signed after defendant resigned as trustee. Section 2-619(a)(9) permits involuntary

dismissal where “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 2008). The


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provision provides a means for disposing of issues of law or easily proved issues of fact at the

outset of the case. Lang v. Silva, 306 Ill. App. 3d 960, 969, 715 N.E.2d 708, 714-15 (1999),

citing Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000, 1002 (1995).

       When ruling on a section 2-619 motion, the circuit court may consider pleadings,

depositions, and affidavits. Lang, 306 Ill. App. 3d at 969, 715 N.E.2d at 715, citing Zedella, 165

Ill. 2d at 185, 650 N.E.2d at 1002. However, courts must “interpret all pleadings and supporting

documents in the light most favorable to the nonmoving party.” In re Chicago Flood Litigation,

176 Ill. 2d 179, 189, 680 N.E.2d 265, 270 (1997). Additionally, if evidentiary facts asserted in

affidavits filed in support of the motion are not refuted by a counteraffidavit, those facts will be

deemed admitted. Lang, 306 Ill. App. 3d at 969-70, 715 N.E.2d at 715, citing Kedzie & 103rd

Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993).

       When considering an appeal from a section 2-619 dismissal, reviewing courts must

determine whether a genuine issue of material fact exists which should have precluded dismissal

and, if no such issue exists, whether dismissal was proper as a matter of law. Lang, 306 Ill. App.

3d at 970, 715 N.E.2d at 715. Our review of dismissals under section 2-619 of the Code is de

novo. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368, 799 N.E.2d 273, 278 (2003);

Lang, 306 Ill. App. 3d at 970, 715 N.E.2d at 715, citing Spiegel v. Hollywood Towers

Condominium Ass’n, 283 Ill. App. 3d 992, 998, 671 N.E.2d 350, 441 (1996).

       As noted, defendant contends that plaintiff’s claims are barred by the release he signed

which fully encompasses plaintiff’s claims. Defendant maintains that he owed no fiduciary

duties to plaintiff after his resignation became effective, which occurred before he tendered the


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release and before plaintiff signed it, and, in any event, he did not fraudulently induce its

execution by plaintiff. Plaintiff argues that the release is ineffective because defendant’s

resignation did not sever fiduciary liability for transactions begun during the fiduciary

relationship. Plaintiff asserts that the defendant drafted and presented the release prior to his

resignation without disclosing all material information, thus constituting fraudulent concealment,

thereby negating the validity of the release. Plaintiff also contends that fraud in the inducement

of a release renders the release ineffective. Plaintiff further maintains that, regardless of whether

defendant still owed any fiduciary duties, under contract law a general release does not operate to

bar claims not specified in the document.

       We first address defendant’s contention that the release was not presented until after his

resignation. Notwithstanding this contention, plaintiff maintains that the release was drafted and

presented to him prior to that date. However, plaintiff, by his December 31, 2008, affidavit

acknowledged that defendant “tendered” the acceptance of office and release to plaintiff on or

about January 17, 2005. Accordingly, we discern that the circuit court could properly find that

the date of presentment was indeed January 17, 2005, as plaintiff conceded.

       Nonetheless, the precise date the release was drafted and/or negotiated remains in dispute.

Our review of the record reveals that plaintiff did indeed raise this issue below in his response to

defendant’s 2-619 motion directed against plaintiff’s original complaint, and argued that the

acceptance of office and release document was dated December 31, 2004. Plaintiff maintained

that defendant had in fact prepared and backdated the release to bear the effective date of

December 31, 2004. Further, this issue was also extensively argued before the court at the


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hearing on the original motion to dismiss. Thus, the issue of when the release was prepared

and/or negotiated was neither resolved nor forfeited.

       We further perceive that the remaining concerns in this case are fraught with genuine

issues of material fact. Notably, the parties dispute the identity of the party who inserted the date

on the release. In his affidavit of December 31, 2008, plaintiff maintained that the acceptance of

office and release was drafted and dated by defendant “as effective December 31, 2004.”

Conversely, in his affidavit of February 17, 2009, attached to his motion to dismiss the first

amended complaint, defendant averred that plaintiff inserted the date. In response, plaintiff

countered with his affidavit of March 17, 2009, that he did not “author or in any way change the

document from the way it was tendered to [him],” and that he only placed his signature on the

release. At the hearing on defendant’s motion, the court was troubled by the apparent

incongruity between the date the release was signed and the date appearing on the face of the

document itself, noting that it seemed obvious defendant typed it because it was in the same

typeface. Although the trial judge expressed concerns that the differing documents raised a

“credibility” issue, the court made no finding as to who inserted the date. Nonetheless, the court

and both parties treated the date of plaintiff’s execution of the release as its effective date, and

the court based its dismissal on this erroneous assumption. Thus, the effective date of the

release, a central concern in this case, presents a genuine issue of material fact which remains

unresolved.

       The factual dispute as to who inserted the date impacts the efficacy of the document

because the date on a contract generally controls as its effective date. The court’s determination


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as to the effective date of the release was not only improper given the disputed facts underlying

that decision, but was also legally erroneous. Although there is a dearth of recent precedent,

perhaps because the rule is so rudimentary, Illinois courts have long recognized that

“[u]ndoubtedly a contract may have a retrospective operation.” Bartlett v. Wheeler, 96 Ill. App.

342, 346 (1901), aff'd, 195 Ill. 445, 63 N.E. 169 (1902). However, the principle of retrospective

application is to be determined from the contract itself. Bartlett, 96 Ill. App. at 346. “[I]t is

elementary that ordinarily a contract speaks from the day of its date, regardless of when it was

executed and delivered.” Monahan v. Fidelity Mutual Life Insurance Co., 148 Ill. App. 171, 174

(1909), aff’d, 242 Ill. 488, 90 N.E. 213 (1909) (policy of life insurance). Further, this court has

held:

        “It is of common occurrence in connection with deeds, leases, and other contracts that,

        while they are not in effect at all and have no legal existence until delivered, yet, in

        respect of the date of delivery, they, in point of commencement, relate back or commence

        in the future. Such relation back or forward contravenes no principle of law and is

        determined by the intent of the parties as deduced from the instrument itself.” Monahan,

        148 Ill. App. at 174.

See also In re Estate of Graff, 117 Ill. App. 3d 900, 902, 453 N.E.2d 1150, 1152 (1983) (the

decedent's signature on note constituted prima facie evidence that the contents of the note,

including the fact that it was dated a week prior to his signature, were known to him, and his act

of signing the note was an adoption and ratification of the effective date of the note); Johnson v.

Prosperity L. & B. Ass’n, 94 Ill. App. 260, 266 (1900) (“while January 27th is shown by the


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evidence to have been the actual date of execution and delivery of the deed and contract, yet the

period limited by the terms of the contract *** is to be reckoned from the date written in the

instrument”); Grubb & Ellis Co. v. Bradley Real Estate Trust, 909 F.2d 1050, 1054 (7th Cir.

1990). Thus, the date of execution of the release does not necessarily control, and, typically, the

date on the release would constitute the effective date. Here, again, the parties dispute who

inserted the date of December 31, 2004, and the effective date of the release remains unresolved.

       Given the myriad disputed factual issues concerning the release, it is axiomatic that

dismissal was improper. “The purpose of a section 2-619 motion to dismiss is to dispose of a

case on the basis of issues of law or easily proved issues of fact.” Hertel v. Sullivan, 261 Ill.

App. 3d 156, 160, 633 N.E.2d 36, 39 (1994). Nonetheless, a court may not decide a disputed

question of fact if a jury demand is filed. Hertel, 261 Ill. App. 3d at 160, 633 N.E.2d at 39. The

question of whether there was fraud in obtaining a release is generally one of fact. Cwikla v.

Sheir, 345 Ill. App. 3d 23, 33, 801 N.E.2d 1103, 1112 (2003). Section 2-619(c) provides:

       “If, upon the hearing of the motion, the opposite party presents affidavits or other proof

       denying the facts alleged or establishing facts obviating the grounds of defect, the court

       may hear and determine the same and may grant or deny the motion. If a material and

       genuine disputed question of fact is raised the court may decide the motion upon the

       affidavits and evidence offered by the parties, or may deny the motion without prejudice

       to the right to raise the subject matter of the motion by answer and shall so deny it if the

       action is one in which a party is entitled to a trial by jury and a jury demand has been filed

       by the opposite party in apt time.” (Emphasis added.) 735 ILCS 5/2-619(c) (West 2008).


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“When facts are in contention in a case where one of the parties is entitled to a jury trial, and the

other party has made a timely jury demand, the court is bound to deny the section 2-619 motion.”

Daiwa Bank Ltd. v. La Salle National Trust, N.A., 229 Ill. App. 3d 366, 384, 593 N.E.2d 105,

116 (1992).

       Though neither party raises this point, under our de novo review we discern our precedent

instructs that because plaintiff filed a jury demand when he commenced the instant litigation, the

circuit court could not determine the disputed questions of fact concerning the release. If the

effective date of the release was prior to defendant’s actual resignation, or if it was established

that defendant drafted and/or negotiated the release prior to his resignation, defendant’s alleged

actions presumably would be subject to scrutiny as a fiduciary with the attendant presumption of

fraud. Defendant’s conduct would then be adjudicated under the heightened standard applicable

to fiduciaries, thereby shifting the burden of proof. “If a petitioner shows that a fiduciary

relationship exists, any transaction between parties in which the agent profits is typically

presumed to be fraudulent and the agent has the burden of proving by clear and convincing

evidence that the transaction was fair and equitable and did not result from the agent's undue

influence over the principal.” In re Estate of Miller, 334 Ill. App. 3d 692, 698, 778 N.E.2d 262,

267 (2002), citing In re Estate of Teall, 329 Ill. App. 3d 83, 87, 768 N.E.2d 124, 129 (2002);

Lemp v. Hauptmann, 170 Ill. App. 3d 753, 757, 525 N.E.2d 203, 206 (1988). See also Prueter v.

Bork, 105 Ill. App. 3d 1003, 1005, 435 N.E.2d 109, 112 (1981) (where there is a fiduciary

relationship, the burden shifts to the fiduciary to prove the fairness of the transaction).

       Moreover, even if the release was not drafted or effective until after defendant’s


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resignation, genuine issues of material fact remain concerning whether there was fraud in the

inducement of the release, which could invalidate the release in its entirety. Where such facts are

alleged, an issue of material fact exists, which if proven, would likely defeat the affirmative

defense of prior release. See Carlile v. Snap-On Tools, 271 Ill. App. 3d 833, 840-42, 648 N.E.2d

317, 322-23 (1995). Here, plaintiff clearly alleged defendant’s silence and concealment of the

scheme to defraud plaintiff during the time defendant served as trustee, and thus a fiduciary, and

that defendant’s concealment induced plaintiff to later sign the release.

       The abiding principle universally holds that when a motion to dismiss is based upon a

release, the burden then shifts to the plaintiff to sufficiently allege and prove that a material issue

of fact exists which would invalidate the release. Thornwood, Inc. v. Jenner & Block, 344 Ill.

App. 3d 15, 23, 799 N.E.2d 756, 763 (2003), citing Meyer v. Murray, 70 Ill. App. 3d 106, 114,

387 N.E.2d 878, 884 (1979). See also McCormick v. McCormick, 118 Ill. App. 3d 455, 466, 455

N.E.2d 103, 112 (1983), citing Blaylock v. Toledo, Peoria & Western R.R. Co., 43 Ill. App. 3d

35, 37, 356 N.E.2d 639, 641 (1976). Precedent further instructs that the defenses that may be

asserted to vitiate a release include fraud in the execution, fraud in the inducement, mutual

mistake and mental incompetence. McCormick, 118 Ill. App. 3d at 466, 455 N.E.2d at 112,

citing Blaylock, 43 Ill. App. 3d at 37, 356 N.E.2d at 641. We recognize that there is a high

standard of specificity for pleading claims of fraud. Cwikla, 345 Ill. App. 3d at 31, 801 N.E.2d at

1110. “The facts must be [pled] with sufficient specificity, particularity, and certainty to apprise

the opposing party of what he is called upon to answer.” Cwikla, 345 Ill. App. 3d at 31, 801

N.E.2d at 1110.


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       In order to constitute fraud in the inducement, the defendant must have made a false

representation of a material fact knowing or believing it to be false and doing it for the purpose

of inducing the plaintiff to act. Phil Dressler & Associates, Inc. v. Old Oak Brook Inv. Corp.,

192 Ill. App. 3d 577, 584, 548 N.E.2d 1343, 1347 (1989). “ ‘[F]raud also may consist of the

intentional omission or concealment of a material fact under circumstances creating an

opportunity and duty to speak.’ ” Thornwood, Inc., 344 Ill. App. 3d at 25, 799 N.E.2d at 765,

quoting H.K. Warner v. Lucas, 185 Ill. App. 3d 351, 354, 541 N.E.2d 705, 706 (1989). “ ‘In

order to prove fraud by the intentional concealment of a material fact, it is necessary to show the

existence of a special or fiduciary relationship, which would raise a duty to speak.’ ”

Thornwood, Inc., 344 Ill. App. 3d at 25, 799 N.E.2d at 765, quoting First Midwest Bank, N.A. v.

Sparks, 289 Ill. App. 3d 252, 260, 682 N.E.2d 373, 379 (1997). Significantly, “in a confidential

or fiduciary relationship, the dominant party's silence alone may constitute fraudulent

concealment.” Thornwood, Inc., 344 Ill. App. 3d at 25, 799 N.E.2d at 765, quoting Melko v.

Dionisio, 219 Ill. App. 3d 1048, 1061, 580 N.E.2d 586, 593 (1991).

       It is well settled that a fiduciary relationship exists between trustee and beneficiary as a

matter of law. McCormick v. McCormick, 118 Ill. App. 3d 455, 466, 455 N.E.2d 103, 113

(1983). Under the Fiduciary Obligations Act, a “fiduciary” includes a trustee under any trust.

760 ILCS 65/1(1) (West 2006). The Act further specifies that “[i]n any case not provided for in

this Act the rules of law and equity, including the law merchant and those rules of law and equity

relating to trusts, agency, negotiable instruments and banking, shall continue to apply.” 760

ILCS 65/11 (West 2006). The relationship between trustee and beneficiary is such that the duties


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rest upon the trustee to serve the interests of the beneficiary with complete loyalty, excluding all

self-interest. Collins v. Nugent, 110 Ill. App. 3d 1026, 1036, 443 N.E.2d 277, 284 (1982).

        Prevailing authorities hold that a release between a trustee and a beneficiary, like all

transactions growing out of a fiduciary relationship, is subject to the closest scrutiny.

McCormick, 118 Ill. App. 3d at 466, 455 N.E.2d at 113, citing Pennington v. Jones, 46 Ill. App.

3d 65, 360 N.E.2d 566 (1977). “Fiduciaries are not prohibited from having *** direct dealings

with their beneficiaries, but such transactions are subject to special scrutiny by the courts, and the

burden is on the fiduciary to show that the transaction was fair.” Home Federal Savings & Loan

Ass’n of Chicago v. Zarkin, 89 Ill. 2d 232, 245-46, 432 N.E.2d 841, 848 (1982). In Collins, the

court held that important factors in determining whether a particular transaction is fair include a

showing by the fiduciary (1) that he has made a free and frank disclosure of all the relevant

information which he had; (2) that the consideration was adequate, and (3) that the principal had

competent and independent advice before completing the transaction. Collins, 110 Ill. App. 3d at

1038, 443 N.E.2d at 285.

        Defendant argues that, because he had already resigned at the time he presented the

release to plaintiff, there was no fiduciary duty and, in any event, there was no fraudulent

concealment. In response, plaintiff maintains that where material information is withheld, and a

transaction begins before a fiduciary resigns but concludes after the fiduciary’s resignation, the

fiduciary may still be liable.

        As the parties implicitly recognize, there is a paucity of precedent imposing trustee

liability for transactions commenced during the fiduciary relationship, but concluded after the


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fiduciary’s resignation. Yet, the common law is replete with examples of breaches of fiduciary

duty after resignation by corporate officers and partners. Notably, plaintiff cites to Golden v.

McDermott, Will & Emery, 299 Ill. App. 3d 982, 702 N.E.2d 581 (1998), appeal denied, 182 Ill.

2d 549, 707 N.E.2d 1239 (1999), where we determined that a release arising out of a fiduciary

relationship is voidable if one party withheld facts that were material to the agreement. Although

the circuit court found Golden distinguishable because it involved parties winding up a

partnership, we nonetheless find its rationale instructive.

       Plaintiff also cites to Comedy Cottage, Inc. v. Berk, 145 Ill. App. 3d 355, 495 N.E.2d

1006 (1986), where a former corporate officer was held to have breached his fiduciary duty after

his resignation. There, we determined that even assuming arguendo the former officer did not

begin competing for the lease until after his resignation, he remained bound by his fiduciary duty

because his acquisition of the lease was based upon knowledge acquired during his employment.

Thus, under the circumstances, the trial court did not err in finding that the former officer

breached his fiduciary duty.

       An identical result obtained in Cwikla, where a release executed during a former

treasurer’s departure from a corporation and the president’s purchase of former treasurer’s shares,

was determined to be voidable and thus no bar to a claim for breach of fiduciary duty against the

former treasurer. In Cwikla, the president alleged that he would not have entered into the release

and purchased the shares had he known certain material facts. We found that the former

treasurer had the duty of full disclosure during those settlement negotiations due to the fiduciary

relationship. Cwikla, 345 Ill. App. 3d at 31, 801 N.E.2d at 1110.


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       Likewise instructive is Dowell v. Bitner, 273 Ill. App. 3d 681, 652 N.E.2d 1372 (1995),

where a partner, who was a corporate officer, was determined to be subject to liability for

transactions that concluded after his resignation but began during his employment. Judgment

was improvidently granted at the conclusion of the plaintiff’s case based on the trial court error in

rejecting evidence of breach through events continuing after the defendant’s resignation but

beginning before his departure. The Dowell court held that, although a corporate officer owes

the corporation no fiduciary duty after he resigns, the officer’s resignation will not sever liability

for transactions completed after termination of the party's association with the corporation if the

transactions began during the existence of the relationship or were founded on information

acquired during the relationship. Dowell, 273 Ill. App. 3d at 691, 652 N.E.2d at 1379-80, citing

Dangeles v. Muhlenfeld, 191 Ill. App. 3d 791, 796, 548 N.E.2d 45, 49 (1989).

       Interestingly, defendant’s sole argument against a similar finding here is that he is a

trustee, and not a corporate officer or a partner, and that the “winding up” factual circumstance of

Golden is inapplicable. Although there may be a dearth of precedent involving trustees

recognizing a continuing fiduciary duty for ongoing transactions concluding after a trustee’s

resignation, we discern no support for the assertion that a trustee does not have similar liability

for transactions begun during the fiduciary relationship but concluding after a trustee’s

resignation. Trustees are but one example of a myriad of fiduciaries including guardians,

executors, administrators, agents, attorneys, partners, joint adventurers, and the directors and

officers of corporations. See Graham v. Mimms, 111 Ill. App. 3d 751, 760-61, 444 N.E.2d 549,

555 (1982), citing 5 A. Scott, Trusts § 495 at 3534 (3d ed. 1967). Each of these fiduciaries owes


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a duty of loyalty to the person or entity for whom the fiduciary is acting. Graham, 111 Ill. App.

3d at 761, 444 N.E.2d at 555-56, citing Dick v. Albers, 243 Ill. 231, 236, 90 N.E. 683, 685

(1909); A. Scott, The Fiduciary Principle, 37 Cal. L. Rev. 539, 541 (1949). One of the functions

of this duty of loyalty is to impose an affirmative obligation to disclose certain information that

falls within the scope of the fiduciary relationship. Graham, 111 Ill. App. 3d at 761, 444 N.E.2d

at 556, citing D. Dobbs, Remedies § 10.1, at 653 (1973).

       Moreover, as we have long recognized, these are general principles and the duty of

loyalty is more intense in some fiduciary relationships than others, specifically in trusts.

Graham, 111 Ill. App. 3d at 761, 444 N.E.2d at 556, citing 5 A. Scott, Trusts § 495, at 3534 (3d

ed. 1967); Restatement of Restitution § 190, Comment a, at 781 (1937). “The duty of loyalty

owed by a trustee to a beneficiary in a trust relationship is more intense than in any other

fiduciary relationship.” Prueter, 105 Ill. App. 3d at 1005, 435 N.E.2d at 111-12. See also

Sauvage v. Gallaway, 329 Ill. App. 38, 44, 66 N.E.2d 740, 743 (1946) (“A fundamental duty of a

trustee is loyalty to his cestuis, and [such] duty of loyalty is more intense *** than in any other

fiduciary relationship”). “ ‘[A] trustee owes a fiduciary duty to a trust’s beneficiaries and is

obligated to carry out the trust according to its terms and to act with the highest degrees of

fidelity and utmost good faith.’ ” Fuller Family Holdings, LLC v. Northern Trust Co., 371 Ill.

App. 3d 605, 615, 863 N.E.2d 743, 21 (2007), quoting In re Estate of Muppavarapu, 359 Ill.

App. 3d 925, 929, 836 N.E.2d 74, 77 (2005); Paul H. Schwendener, Inc. v. Jupiter Electric Co.,

358 Ill. App. 3d 65, 74, 829 N.E.2d 818, 828 (2005); Giagnorio v. Emmett C. Torkelson Trust,

292 Ill. App. 3d 318, 325, 686 N.E.2d 42, 46 (1997); Restatement (Second) of Trusts §2,


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Comment b (1959); Restatement (Second) of Trusts §170 (1959). See also Obermaier v.

Obermaier, 128 Ill. App. 3d 602, 607, 470 N.E.2d 1047, 1051 (1984) (a trustee owes the highest

duty to his beneficiary to fully and completely disclose all material facts when he is dealing with

the trust). Thus, it can be said that a trustee is held to an even more intense duty of loyalty than

in any other fiduciary relationship. We find no support for the assertion that a trustee would not

be subject to the same, if not more intense, duties of loyalty and disclosure of information as

other fiduciaries.

       Defendant studiously relies upon McCormick, 118 Ill. App. 3d at 27, 799 N.E.2d at 767,

where a release obtained by a trustee from his beneficiary after he resigned was given effect, as

“directly on point and controlling.” In McCormick, the instrument released all claims arising out

of the trustee’s management of the trust. At the time the release was signed the fiduciary

relationship no longer existed as a matter of law. McCormick, 118 Ill. App. 3d at 466, 455

N.E.2d at 113, citing Collins, 110 Ill. App. 3d 1026, 443 N.E.2d 277. However, we suggest that

defendant interprets the holding of McCormick too broadly. A careful reading of McCormick

reflects that we held merely that where a release follows a fiduciary’s resignation, there is no

presumption of fraud, which is normally applied to fiduciaries. McCormick, 118 Ill. App. 3d at

466, 455 N.E.2d at 112. Nonetheless, we noted in McCormick that fraud in the execution or

fraud in the inducement would vitiate the release (McCormick, 118 Ill. App. 3d at 466, 455

N.E.2d at 112); however, the plaintiff in McCormick did not allege facts to establish these

defenses (McCormick, 118 Ill. App. 3d at 466, 455 N.E.2d at 112). Thus, because allegations of

fraud were absent, the release was effective.


                                                 17
1-09-1273
       Conversely, here we are presented with precisely such allegations of fraud absent in

McCormick, which may indeed serve to vitiate the instant release. Plaintiff alleged that in

December of 2004, defendant knew that Robert and John were planning to force plaintiff to sell

his shares, was possessed of material information regarding the true value of plaintiff’s shares

and the true financial state of PEI, and also knew plaintiff was unaware of these facts. Plaintiff

alleged in count I that defendant was aware of the Friedman report and knew that Friedman

refused to provide material information to plaintiff’s accountant, and knew of the scheme to

defraud plaintiff and withheld this information. Further, plaintiff alleged in count IV that

defendant assisted in the fraudulent actions of Robert and John, failed to disclose material

information to plaintiff, and then resigned without fully disclosing all material information to

plaintiff. Thus, the allegations in the first amended complaint precisely typified the allegations of

fraud that may serve to vitiate a release obtained by a trustee from his beneficiary even after

resignation.

       Notwithstanding the critical distinction from McCormick, defendant maintains that

plaintiff had the right to inspect the corporate records, due to his position as a shareholder, and

that his failure to do so was an intervening proximate cause of his own injury. Defendant’s

argument is not well-grounded. The elements that must be alleged to state a claim for fraud are:

“ ‘(1) a false statement of material fact; (2) the party making the statement knew or believed it to

be untrue; (3) the party to whom the statement was made had a right to rely on the statement; (4)

the party to whom the statement was made did rely on the statement; (5) the statement was made

for the purpose of inducing the other party to act; and (6) the reliance by the person to whom the


                                                 18
1-09-1273
statement was made led to that person’s injury.’ ” Cramer v. Insurance Exchange Agency, 174

Ill. 2d 513, 529, 675 N.E.2d 897, 905 (1996), quoting Siegel v. Levy Organization Development

Co., 153 Ill. 2d 534, 542-43, 607 N.E.2d 194, 198 (1992). “To state a cause of action for breach

of fiduciary duty, a plaintiff must allege and ultimately prove (1) a fiduciary duty on the part of

the defendant, (2) a breach of that duty, (3) an injury, and (4) a proximate cause between the

breach and the injury.” Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 747, 910 N.E.2d

1134, 1158 (2009). Proximate cause is a question of fact to be decided by a jury. Hooper v.

County of Cook, 366 Ill. App. 3d 1, 7, 851 N.E.2d 663, 669 (2006), citing Espinoza v. Elgin,

Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114, 649 N.E.2d 1323, 1326 (1995). “The issue of

proximate causation should never be decided as a matter of law where reasonable persons could

reach different results.” Nettleton v. Stogsdill, 387 Ill. App. 3d 743, 753, 899 N.E.2d 1252, 1262

(2008), citing Governmental Interinsurance Exchange v. Judge, 221 Ill. 2d 195, 210, 850 N.E.2d

183, 192 (2006). Plaintiff has clearly alleged proximate cause sufficient to state a claim for both

fraud and breach of fiduciary duty, in that he relied on the fraudulent misrepresentation and

concealment by defendant to sign the release and later sell his shares.

       Further, our precedent instructs that “[t]he test that should be applied in all cases in

determining the question of proximate cause is whether the first wrongdoer might have

reasonably anticipated the intervening cause as a natural and probable result of the first party's

own negligence.” Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300, 317, 45 N.E.2d

665, 675 (1942). See also Kirschbaum v. Village of Homer Glen, 365 Ill. App. 3d 486, 495, 848

N.E.2d 1052, 1059 (2006). Here, viewing the allegations in the light most favorable to plaintiff,


                                                 19
1-09-1273
as we must, we find that defendant could have reasonably anticipated that plaintiff would not

have sought the corporate records or attempted to discover the fraud on his own, due to

defendant's concealment of the fraud and breach of his fiduciary duty. It was entirely foreseeable

that plaintiff would rely on defendant's stated reasons for not providing the information regarding

his stock value (necessity of obtaining plaintiff's father's permission as settlor of the trust) and

reason for his resignation (conflict in representing plaintiff's father), as defendant was the trustee

of his trust.

        Defendant maintains the superseding proximate cause was plaintiff’s own negligence in

not searching for the information on his own. Yet, defendant provides no authority for the bold

assertion that a trust beneficiary has a duty to disregard his own trustee’s representations and

ferret out information for himself. Our supreme court rejected a similar argument in Soules v.

General Motors Corp., 79 Ill. 2d 282, 402 N.E.2d 599 (1980). In Soules, the plaintiff investor

brought an action for fraudulent and negligent misrepresentation by the defendant corporation,

alleging that the franchisee’s periodic financial reports, which it was required to submit to

defendant, were false and known by defendant to be such. The defendant argued that plaintiff, as

a corporate director, had no right to rely on any alleged misrepresentation by the defendant.

Soules, 79 Ill. 2d at 286, 402 N.E.2d at 601. The supreme court held that “[t]his question is to be

answered while viewing the representation in light of all the facts of which plaintiff had actual

knowledge as well as those of which he ‘might have availed himself by the exercise of ordinary

prudence.’ ” Soules, 79 Ill. 2d at 286-87, 402 N.E.2d at 601, quoting Schmidt v. Landfield, 20 Ill.

2d 89, 94, 169 N.E.2d 229, 231 (1960), quoting Dillman v. Nadlehoffer, 119 Ill. 567, 577, 7 N.E.


                                                  20
1-09-1273
88, 91 (1886). The court reasoned that, regardless of plaintiff's access to such materials as a

corporate officer, examination of the reports would not have revealed that the financial reports

were false. Soules, 79 Ill. 2d at 287, 402 N.E.2d at 601. The court further held, “[c]onsequently,

based upon the limited record before us, we cannot say that plaintiff’s reliance on the truth of

defendant's representations regarding the continuing financial requirements was unjustified.”

Soules, 79 Ill. 2d at 287, 402 N.E.2d at 601.

       In the instant case, as in Soules, the fact that plaintiff had access to corporate records due

to his position as a shareholder does not diminish plaintiff’s rightful reliance on the

representations made by defendant as his trustee, especially with the attendant high fiduciary

duties owed to plaintiff. Also as in Soules, any examination of the corporate records would not

have revealed the fraudulent scheme. Even assuming plaintiff had obtained the corporate

records, as defendant strenuously argues he should have done, the records would not have

revealed the fraudulent scheme to undervalue plaintiff’s shares. The scheme as alleged by

plaintiff was revealed only much later after an independent appraisal by plaintiff, utilizing

information not contained in the corporate records. Further, any failure to attempt to obtain such

information was caused by defendant’s fraudulent conduct in concealing the scheme to defraud

him. Instead of alerting plaintiff to the ongoing scheme, defendant merely provided the excuse

that he needed permission from plaintiff’s father as settlor to provide the information regarding

plaintiff’s shares. Also, defendant’s stated reason for his resignation was solely because of a

conflict in representing plaintiff’s father. Such seemingly innocuous explanations easily lend

themselves to the conclusion that plaintiff was justified in relying on defendant’s representations.


                                                 21
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        Additionally, we note the well-established principle that a trustee cannot simply delegate

his own duty to provide information to his beneficiary or force the beneficiary to find other

avenues for information he is rightfully owed. “The law does not contemplate that a beneficiary

of a trust must set in motion the processes of a court *** in order to obtain what he is entitled

to.” Johnson v. Sarver, 350 Ill. App. 565, 579, 113 N.E.2d 578, 584 (1953). As the long-

established high duties of a trustee were explained by the court in In re the Trusteeship Under the

Last Will and Testament of Hartzell, 43 Ill. App. 2d 118, 192 N.E.2d 697 (1963):

        “Although purely ministerial powers or duties may be delegated by a trustee, generally a

        trustee may not delegate powers and duties involving an exercise of judgment and

        discretion. A trustee must use care and diligence in the discharge of his powers and

        duties. He is held to a high standard of conduct and must exercise the utmost or highest

        good faith in the administration of the trust.” Hartzell, 43 Ill. App. 2d at 134, 192 N.E.2d

        at 706.

        Adherence to fundamental principles dictates that “[a] trustee is held to a high standard of

conduct and must exercise the utmost or highest good faith in the administration of the trust,”

and that “[a]cting with good faith in administering the trust means that the trustee must act

honestly and with undivided loyalty to the trust, not merely with the standard of the workaday

world but with the most sensitive degree of honor.” Laubner v. JP Morgan Chase Bank, N.A.,

386 Ill. App. 3d 457, 463-64, 898 N.E.2d 744, 751 (2008). Here, under our de novo review we

are unable to find any superseding proximate cause as a matter of law sufficient to dismiss

plaintiff's cause of action.


                                                 22
1-09-1273
       In the case sub judice, plaintiff's complaint and his affidavits sufficed to create genuine

questions of material fact. See Lopez v. Clifford Law Offices, P.C., 362 Ill. App. 3d 969, 983,

841 N.E.2d 465, 477 (2005), citing Pothier v. Chicago Transit Authority, 238 Ill. App. 3d 702,

710, 606 N.E.2d 531, 537 (1992) (the plaintiffs’ uncontradicted affidavit filed in response to a

section 2-619 motion to dismiss stating that she relied to her detriment on the defendant's

representations created a genuine issue of fact, defeating the motion to dismiss). Moreover,

plaintiff’s affidavit of March 17, 2009, which was not subsequently controverted by defendant in

a counteraffidavit, more than sufficiently provides a genuine issue of material fact as to

proximate cause. Plaintiff avers:

               “Angelo Tiesi was the trustee of the trust that controlled my stock. He was also

       my father’s personal attorney. Mr. Tiesi was very knowledgeable about the affairs of the

       company and I relied upon him to look out for my interests, just as I relied on my father

       and brother to be fair with me. I couldn’t look out for myself, because they controlled the

       company and wouldn’t let me see any of the financial information. When Angelo Tiesi

       resigned as a trustee he only told me that it had something to do with his representing my

       father. I had no idea that he had withheld from me that they were planning to cheat me

       out of my interest in the family business. I would never have signed a release, and I

       would never have agreed to go ahead with the sale, if I had known what was really going

       on.”

       As noted, we have determined that because of all the disputed fact issues concerning the

release and defendant’s alleged commission of fraud and breach of his fiduciary duties in


                                                 23
1-09-1273
obtaining the release, dismissal on the basis of the release was improper. Any additional fact

issues regarding proximate cause also militate in favor of reversing the dismissal.

       Even assuming arguendo there was no fiduciary duty owed at the time of the release,

additionally we find that dismissal on the basis of the release may nevertheless be improper

because the release arguably could be ineffective to bar plaintiff’s claims. A release is a contract

and, therefore, is governed by contract law. Farm Credit Bank of St. Louis v. Whitlock, 144 Ill.

2d 440, 447, 581 N.E.2d 664, 667 (1991), citing Polo National Bank v. Lester, 183 Ill. App. 3d

411, 414, 539 N.E.2d 783, 785 (1989). General words of release are restrained in effect by the

specific recitals contained in the document. Fuller Family Holdings, LLC, 371 Ill. App. 3d at

614, 863 N.E.2d at 18, citing Carona v. Illinois Central Gulf R.R. Co., 203 Ill. App. 3d 947, 951,

561 N.E.2d 239, 242 (1990). “Releases are strictly construed against the benefitting party and

must spell out the intention of the parties with great particularity.” Fuller Family Holdings, LLC,

371 Ill. App. 3d at 614, 863 N.E.2d at 18, citing Scott & Fetzer Co. v. Montgomery Ward & Co.,

112 Ill. 2d 378, 395, 493 N.E.2d 1022, 1029 (1986); Stratman v. Brent, 291 Ill. App. 3d 123,

137, 683 N.E.2d 951, 961 (1997). “The intention of the parties controls the scope and effect of

the release, and this intent is discerned from the release's express language as well as the

circumstances surrounding the agreement.” Fuller Family Holdings, LLC, 371 Ill. App. 3d at

614, 863 N.E.2d at 18, citing Adams v. American International Group, Inc., 339 Ill. App. 3d 669,

676, 791 N.E.2d 26, 32 (2003); Doctor's Associates, Inc., v. Duree, 319 Ill. App. 3d 1032, 1045,

745 N.E.2d 1270, 1282 (2001).

       It is well settled that where the releasing party was unaware of other claims, general


                                                 24
1-09-1273
releases are restricted to the specific claims contained in the release agreement. Farm Credit

Bank, 144 Ill. 2d at 447, 581 N.E.2d at 667. However, where both parties were aware of an

additional claim at the time of signing the release, courts have given effect to the general release

language of the agreement to release that claim. Farm Credit Bank, 144 Ill. 2d at 447, 581

N.E.2d at 667. Therefore, a release will not be construed to defeat a valid claim that was not

within the contemplation of the parties at the time the agreement was executed, and general

words of release are inapplicable to unknown claims. Farm Credit Bank, 144 Ill. 2d at 447-48;

Thornwood, Inc., 344 Ill. App. 3d at 21.

       The language of the release alleged in the complaint is as follows:

               “I do hereby release, hold harmless and indemnify Angelo F. Tiesi, his heirs and

       assigns from any and all liability relating to his acts or failure to act as trustee of the

       Michael H. Janowiak Trust.”

       In Thornwood, Inc., 344 Ill. App. 3d 15, 799 N.E.2d 756, the defendant law firm's general

release contained sweeping language, purporting to release all claims of any sort. Thornwood,

Inc., 344 Ill. App. 3d at 22, 799 N.E.2d at 763. We held the release did not encompass the claims

made by the plaintiff because those claims were unknown to him when he signed the release, and

thus the claims could not have been in the contemplation of the parties when the release was

signed. Thornwood, Inc., 344 Ill. App. 3d at 22, 799 N.E.2d at 763. Further, this court took note

that the claims may have been contemplated by the law firm, which crafted the release in an

effort to protect itself from all potential claims. Thornwood, Inc., 344 Ill. App. 3d at 22, 799

N.E.2d at 763. However, knowledge by one party, where the other party lacks knowledge, does


                                                  25
1-09-1273
not bring the claim within the contemplation of the parties. Thornwood, Inc., 344 Ill. App. 3d at

22, 799 N.E.2d at 763, quoting Todd v. Mitchell, 168 Ill. 199, 204, 48 N.E. 35 (1897) (“ ‘The

breach of the covenant of warranty could not have been in contemplation of the parties, because

unknown to the appellant at the time *** ’ ”). We explained as follows:

       “In many cases, a release makes clear on its face what claims were within the

       contemplation of the parties at the time the release was given. In other instances, the

       release provides very general language that does not indicate with any clear definition

       what claims were within the contemplation of the parties. In such cases, ‘the courts will

       restrict the release to the thing or things intended to be released and will refuse to

       interpret generalities so as to defeat a valid claim not then in the minds of the parties.’

       [Citation.] In other words, general releases do not serve to release unknown claims,

       which the party could not have contemplated releasing when it gave the release.

       [Citation.]” Thornwood, Inc., 344 Ill. App. 3d at 21, 799 N.E.2d at 762

       Concerning the release of fiduciary duties, we further explained:

       “If the acts had been disclosed or were otherwise within Thornton’s knowledge and

       Thornton had then agreed to the release, it would be binding. If, however, those acts were

       concealed from Thornton in violation of [defendant’s] fiduciary duties, the release may

       not prevent Thornton’s claims.” Thornwood, Inc., 344 Ill. App. 3d at 27, 799 N.E.2d at

       767.

       We further held that if in fact fraud was found, the releases may not bar claims, regardless

of whether the defendant had a fiduciary duty. See Thornwood, Inc., 344 Ill. App. 3d at 26, 799


                                                 26
1-09-1273
N.E.2d at 766. Thus, under Thornwood, the exact timing of defendant’s resignation and

termination of any fiduciary duty would not serve to insulate him from liability if indeed he

procured the release through fraud, as alleged.

       Although we have located no case precisely on point factually involving a release of a

trustee after the trustee’s resignation, we find instructive Fuller Family Holdings, LLC, 371 Ill.

App. 3d 605, 863 N.E.2d 743, where we held a release executed contemporaneously with the

termination of a trust in a settlement agreement did not release a breach of fiduciary duty claim

against the trustee. In Fuller Family Holdings, LLC, the release in the settlement agreement

provided that the trust beneficiaries released:

               “ ‘any and all claims *** arising out of the determination of the Trust's

       termination date, and the termination of the Trust *** including, but not limited to, The

       Northern's transfer of the Property upon termination to the Fuller Family Holdings LLC,

       *** and The Northern's transfer of the cash and marketable securities *** provided,

       however, that this release shall not apply to any claims arising from a breach of the

       provisions of this Settlement Agreement.’ ” Fuller Family Holdings, LLC, 371 Ill. App.

       3d at 614, 863 N.E.2d at 19.

       In Fuller, we determined that the breach of fiduciary duty claim did not fall into any of

these categories. Thus, the release did not include the breach of fiduciary duty claim, nor did the

agreement indicate the parties’ intent to release the claim, and thus the circuit court erred in

finding that the settlement agreement released the breach of fiduciary duty claim. Fuller Family

Holdings, LLC, 371 Ill. App. 3d at 615, 863 N.E.2d at 20. Further buttressing our conclusion


                                                  27
1-09-1273
was the fact that a breach of fiduciary duty claim does not belong to the trust, and does not arise

from the trust agreement, but rather arises from the fiduciary relationship between the trustee and

the beneficiary. Fuller Family Holdings, LLC, 371 Ill. App. 3d at 615, 863 N.E.2d at 21-22.

        Similarly here, the release appears to be general as it does not specify which claims are

being released. It purports to release “any and all liability relating to his acts or failure to act as

trustee,” without specifying claims regarding failure to give information pertaining to the specific

transaction of plaintiff’s sale of his shares. Also, even assuming arguendo the release is not

general, it refers to acts or failure to act “as trustee,” but the claims here do not arise from actions

as trustee in relation to the trust corpus. Rather, plaintiff’s claims arise from defendant’s

fiduciary relationship with plaintiff and are based on defendant’s alleged breach of his duties as a

fiduciary to plaintiff and his commission of fraud. Thus, consistent with our holding in Fuller

Family Holdings, LLC, it does not necessarily follow that an act or failure to act as trustee

encompasses breach of fiduciary and fraud claims, as these are not actions or failures to act as

trustee of the trust corpus. Furthermore, the release is governed by the parties’ intent, and

plaintiff clearly alleges that it was not his intent to release such claims.

        In sum, we hold that there are numerous genuine issues of material fact concerning the

drafting and negotiation of the release and its effective date which should have prevented

dismissal on the basis of the release. Further, plaintiff has sufficiently stated genuine issues of

material fact that may serve to vitiate the release in this case, including fraudulent concealment,

fraud in the inducement, and failure to give a full and frank disclosure by a fiduciary. We

additionally determine that because the language of the release is broad and general, it may not


                                                   28
1-09-1273
contemplate release of breach of fiduciary and fraud claims. Even if the release was not a general

release, plaintiff has alleged he did not intend to release breach of fiduciary duties and fraud

claims thereby creating an additional factual issue. Thus, plaintiff’s claims may not be barred by

the release given the genuine issues of material fact we have discussed. The dismissal of

plaintiff’s claims pursuant to section 2-619 of the Code is reversed.

                                          CONCLUSION

       For the following reasons, we reverse the judgment of the circuit court and remand the

matter for further proceedings.

       Reversed and remanded.

       FITZGERALD SMITH and LAVIN, JJ., concur.




                                                 29
             1-09-1273
                                  REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Please Use
Following                                   (Front Sheet to be Attached to Each Case)
Form:
                         MICHAEL JANOWIAK,
Comple te
TITLE
                                                          Plaintiff-Appellant,
of Case
                         v.

                         ANGELO TIESI,

                                                          Defendant-Appellee.



Docket No.
                                                                      1-09-1273
COURT                                                        Appellate Court of Illinois
                                                           First District, FIFTH Division
Opinion                                                           June 30, 2010
Filed
                                                            (Give month, day and year)


JUSTICES
                                 PRESIDING JUSTICE TOOMIN delivered the opinion of the court:

                                 FITZG ERA LD SM ITH and LAV IN ,    JJ.,                                      concur [s]




APPEAL from                                 Lower Court and T rial Judge(s) in form indicated in the margin:
the Circuit Ct. of
Cook County,                                     The Honorable     Barbara McDonald, Judge Presiding.
Chancery Div.




                                       Indicate if attorney represents APPELLANTS or APPELLEE S and include
For                                         attorneys of counsel. Indicate the word NONE if not represented.
APPELLANTS,
John Doe, of
Chicago.                 Plaintiff-Appellant,                                        Richard C. Leng
                                                                                     Law Offices of Richard C. Leng
For                                                                                  330 West Main Street
APPELLEES,                                                                           Barrington, IL
Smith and Smith
of Chicago,
Joseph Brown,            Defendant-Appellee,                                         Michael L. Shakman
(of Counsel)                                                                         Diane Klotnia
                                                                                     Daniel M. Feeney
Also add
                                                                                     Alexandra Block
attorneys for
third-party                                                                          Miller Shakman & Beem LLP
appellants or                                                                        180 N LaSalle, Suite 3600
appellees.                                                                           Chicago, IL 60601
                                                                                     312/263-3700


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