                         Illinois Official Reports

                                 Appellate Court



                  In re Estate of DeMarzo, 2015 IL App (1st) 141766



Appellate Court     In re ESTATE OF PATRICIA DeMARZO, Deceased (James P.
Caption             DeMarzo, Plaintiff-Appellant v. Harvey L. Harris, Individually and as
                    Executor of the Estate of Patricia DeMarzo, Deceased, Sierra Club,
                    Medallion Rottweiler Club, Colonial Rottweiler Club, and Lisa
                    Madigan, Illinois Attorney General, Defendants-Appellees).



District & No.      First District, Third Division
                    Docket No. 1-14-1766



Filed               August 19, 2015



Decision Under      Appeal from the Circuit Court of Cook County, No. 09-P-4809; the
Review              Hon. Susan M. Coleman, Judge, presiding.



Judgment            Affirmed.



Counsel on          Eduard Adam Glavinskas, of Porikos, Rodes & Glavinskas, of
Appeal              Chicago, for appellant.

                    Sherwin H. Zaban, Darryl Rosenzweig, and Alan Jacobs, all of Jacobs
                    & Rosenzweig, of Chicago, for appellees.



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

¶1       Patricia DeMarzo died in 2009, leaving a will that bequeathed a majority of her estate to
     defendant Harvey Harris, who at various times between 2002 and 2007 was Patricia’s tenant,
     attorney, and boyfriend. James DeMarzo, Patricia’s brother and only legal heir, filed a
     petition to contest the will, asserting it violated public policy because Harris, while acting as
     Patricia’s lawyer, wrote the will. This claim was based on the deposition testimony of
     Patricia’s friend, James Panagakis, who contended that Patricia told him, in Harris’ presence,
     that Harris knew what was in the will because he wrote it. Alternatively, DeMarzo alleged
     Harris exercised undue influence over Patricia in deciding how her estate would be
     distributed. DeMarzo asked the trial court to declare the will invalid and asked for $5 million
     in punitive damages, as well as attorney fees and cost.
¶2       Both parties filed motions for summary judgment. Before ruling on the motions, the trial
     court granted Harris’ motion to exclude Panagakis’ testimony regarding his conversation
     with Patricia on hearsay grounds. The trial court then granted Harris’ motion for summary
     judgment, denied DeMarzo’s motion, and dismissed the petition with prejudice. DeMarzo
     contends the trial court erred in: (1) barring as hearsay the conversation between Patricia and
     Panagakis about who prepared the will; and (2) denying his motion for partial summary
     judgment and granting Harris’ motion for summary judgment.
¶3       We affirm on the basis that: (1) the conversation between Patricia and Panagakis
     constituted hearsay without an exception and, thus, was barred from admission; and (2)
     summary judgment in Harris’ favor was appropriate where no evidence was introduced
     showing that Harris wrote Patricia’s will or unduly influenced her.

¶4                                         BACKGROUND
¶5       Patricia DeMarzo, a resident of Northbrook, Illinois, signed her last will and testament on
     February 28, 2004. At that time, she was romantically involved with defendant Harvey Harris
     who also rented one of Patricia’s homes in Northbrook. Patricia’s will named Harris as the
     executor and, under article two, bequeathed to Harris: all of her dogs, two parcels of real
     property located in Northbrook, and all of her personal and household effects not otherwise
     disposed of. Patricia bequeathed one half of her residuary estate to Harris, with the other half
     going to various charities. Patricia bequeathed $3,000 to her brother, James DeMarzo, from
     life insurance policies, if any, and provided that if those policies do not exist, DeMarzo
     would not receive anything under the will. DeMarzo lives in Florida and was in and out of
     the Florida Department of Corrections between 1989 and 2008.
¶6       Harris, who was a licensed attorney in Illinois, contends other than helping Patricia
     change her name in 2002, after her divorce, he provided her no legal services. He
     acknowledges that in 2003, Patricia asked him whether her entire estate would go to her
     brother if she died without a will. He said he confirmed that it would go to DeMarzo as her
     sole surviving heir, and she said that she did not want that to happen. He also acknowledges
     that at Patricia’s request, he asked an acquaintance to notarize the will and went with her to
     get the will notarized. Harris claims, however, that he played no role in drafting Patricia’s
     will or advising her how to draft it. Harris’ romantic relationship with Patricia ended in 2005,
     when he moved to Montana, where he currently resides. He asserts that in 2007, Patricia
     mailed the will to him for safekeeping.

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¶7         Patricia died on July 1, 2009. Later that month, the trial court entered an order admitting
       the will to probate and appointing Harris as the executor of Patricia’s estate. The court also
       entered an order finding DeMarzo as Patricia’s sole heir. On September 10, 2009, DeMarzo
       petitioned for formal proof of will. At the hearing on the petition, Harris testified that Patricia
       told him she prepared the will. Later, during that hearing, he testified that she did not tell him
       she prepared it but that he assumed she had. After the hearing, the admission of Patricia’s
       will was confirmed.
¶8         On January 29, 2010, DeMarzo filed a petition to contest the will’s validity, contending
       the will was: (1) void as against public policy because Harris prepared the will while acting
       as Patricia’s attorney; and (2) not Patricia’s free and voluntary act but instead, the result of
       Harris’ undue influence. On March 23, 2010, Harris filed a motion to dismiss DeMarzo’s
       petition, which the trial court denied.
¶9         The parties conducted discovery, including depositions of Harris and Panagakis, a friend
       of Patricia’s. In his deposition, Panagakis asserted that in August or September 2004, Patricia
       invited him to a bar in Northbrook to meet Harris. Panagakis said that while he, Patricia, and
       Harris were sitting at the bar, with Patricia between the two men, Patricia told him that Harris
       knew what was in her will because he wrote it. Panagakis said he looked over at Harris, who
       gave him a “sheepish grin” and looked away. Panagakis said that he did not know why Harris
       gave him that look and did not know if Harris was smiling because he wrote the will or
       because he was “getting everything.” Panagakis said that in the years before she died,
       Patricia told him “hundreds” of times that Harris drafted her will and that she wanted to
       change it. He also said that Patricia told him that “if she left anything to [her brother] he’d
       piss it all away on drugs.”
¶ 10       In his deposition, Harris denied that he prepared Patricia’s will and again stated both that
       Patricia told him that she drafted the will and he presumed she had prepared it.
¶ 11       The parties filed cross-motions for summary judgment. Before the hearing on the
       summary judgment motions, Harris filed a motion for a preliminary ruling on the
       admissibility of Panagakis’ testimony that Patricia told him that Harris wrote the will and
       Harris’ silence in response. Harris contended that Patricia’s alleged statement would be
       inadmissible hearsay evidence, and that his nonresponse does not constitute an admission by
       silence. The trial court agreed and entered an order finding that the conversation between
       Patricia and Panagakis was hearsay and not subject to the silence by admission exception.
¶ 12       On November 19, 2013, the trial court granted Harris’ motion for summary judgment,
       denied DeMarzo’s motion for partial summary judgment, and dismissed the case with
       prejudice. The trial court denied DeMarzo’s motion to reconsider.
¶ 13       DeMarzo contends that the trial court erred in: (1) barring the admission of the
       conversation between Patricia and Panagakis regarding who prepared the will; (2) denying
       DeMarzo’s motion for partial summary judgment; and (3) granting Harris’ motion for
       summary judgment.

¶ 14                                        ANALYSIS
¶ 15      Before turning to the merits, we must address issues with DeMarzo’s brief and the record
       on appeal. Although DeMarzo appeals from three trial court orders representing three
       separate hearings, the record on appeal does not contain transcripts from any of those


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       proceedings as required by Illinois Supreme Court Rule 321 (eff. Feb. 1, 1994) and Rule 323
       (eff. Dec. 13, 2005). Nor has DeMarzo filed an acceptable substitute, such as a bystander’s
       report or an agreed statement of facts, as provided for in Rule 323(c) or (d). The record is
       also deficient in that it lacks a copy of the motion for partial summary judgment and only
       contains the exhibits to the motion. Further, although DeMarzo’s brief includes an appendix
       with a table of contents as required by Illinois Supreme Court Rule 342 (eff. Jan. 1, 2005),
       the table of contents is inaccurate in several places. For instance, the table of contents lists
       the motion for partial summary judgment, which is not in the record, and the petition to
       contest the will, which is not where the table of contents indicates, but instead can be found
       as part of the exhibits to his motion for partial summary judgment.
¶ 16       We caution that the rules of procedure for appellate briefs must be obeyed; they are not
       convenient suggestions or annoyances to be neglected at will. It is within our discretion to
       strike a brief and dismiss an appeal for failure to comply with the rules. Parkway Bank &
       Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 10. The appellant has the burden of
       providing a sufficient record of the trial proceedings to support his or her claims of error.
       Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). In the absence of a sufficient record, we
       must presume the trial court acted in conformity with the law and with a sufficient factual
       basis for its findings. Id. Furthermore, any doubts arising from an incomplete record will be
       resolved against the appellant. Id. at 392. We note, however, that striking a brief or
       dismissing an appeal for failure to comply with the rules is a bitter sanction for a represented
       party because it harshly penalizes the client for his or her lawyer’s noncompliance. In re
       Detention of Powell, 217 Ill. 2d 123, 132 (2005). The record is not voluminous and the issues
       straightforward. Accordingly, and with these caveats in mind, we will consider the merits of
       the appeal. See People v. Thomas, 364 Ill. App. 3d 91, 97 (2006).

¶ 17                                             Hearsay
¶ 18       DeMarzo first contends the trial court erred in barring on hearsay grounds Panagakis’
       testimony that Patricia told him, in Harris’ presence, that Harris prepared her will. DeMarzo
       contends that statement qualifies as an exception to the hearsay rule and that Harris’ failure
       to respond to Patricia’s statement constitutes an admission by silence. Harris claims not to
       recall a discussion of Patricia’s will on the date alleged and also asserts the statement
       constitutes hearsay without an exception.
¶ 19       As every lawyer knows, hearsay evidence consists of an out-of-court statement offered to
       prove the truth of the matter asserted and, due to its lack of reliability, is generally
       inadmissible unless it satisfies an exception. Dohrmann v. Swaney, 2014 IL App (1st)
       131524, ¶ 43. The trial court has discretion to determine whether a statement, in fact, is
       hearsay and, if so, whether the statement falls within an exception to hearsay. Piser v. State
       Farm Mutual Automobile Insurance Co., 405 Ill. App. 3d 341, 350 (2010).
¶ 20       Evidence offered to show a person’s knowledge or awareness of a circumstance and not
       to establish the truth of the circumstance is not hearsay. Holland v. Schwan’s Home Services,
       Inc., 2013 IL App (5th) 110560. DeMarzo contends Panagakis’ deposition testimony
       regarding Patricia’s statement that Harvey prepared her will is not hearsay because it is being
       offered to show Harvey’s knowledge and awareness that he prepared the will. We disagree.
       First, Holland, on which DeMarzo relies, is distinguishable. There, the plaintiff, who injured
       his back at work, sued his former employer alleging his former employer terminated him in

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       retaliation for exercising his rights under the Illinois Workers’ Compensation Act. Id. ¶ 1
       (citing 820 ILCS 305/1 to 30 (West 2008)). The defendant claimed as hearsay the claims file
       maintained by a third party workers compensation administrator, which contained statements
       about the plaintiff’s condition and treatment that the administrator made to defendant’s
       employees and vice versa. Id. ¶ 183. The appellate court held that the circuit court correctly
       admitted the file to establish only that the administrator made the statements, not as proof of
       any matter she asserted in those statements about defendant’s condition and ruled the
       statements relevant to show the defendant’s knowledge of those communications. Id. ¶ 186.
¶ 21        Conversely, DeMarzo offers the conversation between Patricia and Panagakis only to
       show the truth of the statement Patricia made, i.e., that Harris wrote the will for Patricia, and
       not to show that Harris knew about the conversation between Patricia and Panagakis. Thus,
       this testimony fits squarely into the definition of inadmissible hearsay.
¶ 22        DeMarzo also contends Patricia’s statement to Panagakis falls under an exception for
       statements consistent with the terms of a will, citing In re Will of Hamilton, 408 Ill. 187
       (1951). In the Hamilton case, our supreme court ruled that statements made during a
       testator’s life that are contrary to the terms of the testator’s will are inadmissible to invalidate
       the will. In his brief DeMarzo asserts “presumably, statements which are consistent with the
       terms of the will would be admissible.” But, DeMarzo’s presumption does not accord with
       any case law. Moreover, even if DeMarzo’s presumption were true, it would not aid him
       because Patricia’s purported statement that Harris knew he was getting everything as the
       will’s author conflicts with the terms of the will. First, although Harris did get a significant
       part of Patricia’s estate, he did not get “everything,” as she left half of her residuary estate to
       various charities. Further, the statement that Harris wrote the will is inconsistent with the will
       because nothing in the will indicates who prepared it for Patricia. Thus, nothing in the facts
       or the law support a finding that Patricia’s statement to Panagakis comes in under a hearsay
       exception.

¶ 23                                      Admission by Silence
¶ 24       DeMarzo alternatively argues that Harris’ failure to deny that he prepared the will after
       Patricia told Panagakis that he had constitutes an admission by silence.
¶ 25       To qualify as an admission by silence or an implied admission, it is essential that the
       person heard the incriminating statement and that it was made under circumstances which
       allowed an opportunity for the person to reply and where a person similarly situated would
       ordinarily have denied the accusation. People v. Cihak, 169 Ill. App. 3d 606, 611 (1988).
       According to Panagakis’ deposition testimony, he and Patricia were talking about fly fishing
       and he “jokingly” said something to Patricia about being careful if she was with someone
       inexperienced and Patricia “jokingly” replied “you know, if I die Harvey gets everything.
       *** She said, Harvey knows because he did the will.” Panagakis said he looked at Harris,
       who had a “sheepish grin” and looked away.
¶ 26       Panagakis never said Harris heard Patricia’s comment. (Harris says he does not recall the
       conversation.) Panagakis stated that the three of them were seated at a bar, with Patricia in
       the middle and each man to either side of her. Panagakis further stated that Patricia turned
       toward him when speaking to him and, thus, had her back to Harris. And, Panagakis
       acknowledged he could not decipher the meaning behind what he described as Harris’
       “sheepish grin.” If indeed Harris heard the conversation, it is equally likely that he reacted to

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       her saying he was “getting everything” as it was to her assertion the he wrote the will. Absent
       evidence that Harris heard Patricia’s statement and said nothing, it cannot qualify as an
       admission by silence.

¶ 27                                           Summary Judgment
¶ 28       DeMarzo next contends the trial court erred in denying his motion for partial summary
       judgment and in granting summary judgment in favor of Harris. 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(c) (West 2012). We review the trial court’s
       decision to grant or deny a motion for summary judgment de novo. Outboard Marine Corp.
       v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
¶ 29       The purpose of summary judgment is to determine whether triable issues of fact exist and
       is proper where the pleadings, depositions, and admissions on file, together with any
       affidavits and exhibits, when viewed in the light most favorable to the nonmoving party,
       establish no genuine issue of material fact exist and the moving party deserves judgment as a
       matter of law. O’Connell v. Turner Construction Co., 409 Ill. App. 3d 819, 822 (2011)
       (quoting Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996)).
¶ 30       When reviewing a trial court’s grant of summary judgment de novo, we are “limited to
       deciding whether the [trial] court correctly concluded that no genuine issue of material fact
       had been raised and, if none was raised, whether judgment as a matter of law was
       appropriate.” Chicago Transit Authority v. Clear Channel Outdoor, Inc., 366 Ill. App. 3d
       315, 323 (2006) (citing William Blair & Co. v. FI Liquidation Corp., 358 Ill. App. 3d 324,
       333 (2005)). To qualify as a “genuine” issue, there must be evidence to support the position
       of the nonmoving party. N.W. v. Amalgamated Trust & Savings Bank, 196 Ill. App. 3d 1066,
       1075 (1990). In making a determination as to whether a genuine issue of material fact exists,
       we “must construe the evidence strictly against the movant and liberally in favor of the
       opponent.” Chicago Transit Authority, 366 Ill. App. 3d at 323 (citing William Blair & Co.,
       358 Ill. App. 3d at 333).
¶ 31       DeMarzo contends the trial court erred in denying his motion for partial summary
       judgment because those portions of Patricia’s will bequeathing certain gifts to Harris are
       against the public policy of Illinois, as defined by Illinois Rule of Professional Conduct
       1.8(c), which provides in part:
                “A lawyer shall not *** prepare on behalf of a client an instrument giving the lawyer
                or a person related to the lawyer any substantial gift unless the lawyer or other
                recipient of the gift is related to the client.” Ill. R. Prof. Conduct (2010) R. 1.8(c) (eff.
                Jan. 1, 2010).
¶ 32       DeMarzo asserts that Rule 1.8(c) is indicative of public policy and that Harris violated
       the Rule and the policy behind it by writing Patricia’s will and giving himself a substantial
       portion of her estate. DeMarzo’s argument is primarily premised on the conversation
       between Patricia and Harris, which the trial court properly excluded as hearsay. Absent
       evidence that Harris wrote Patricia’s will or improperly influenced her to bequeath most of
       her estate to him, no genuine issue of material fact exists showing Harris violated Rule 1.8(c)
       or Illinois public policy.



                                                     -6-
¶ 33        We note that DeMarzo asserts that Patricia told Panagakis on other occasions that Harris
       had prepared her will and that she wanted to change it. Absent a transcript or bystander’s
       report from the trial court proceedings, we are unable to determine if this was raised below.
       A failure to do so precludes our addressing it. Bowman v. Chicago Park District, 2014 IL
       App (1st) 132122, ¶ 59 (arguments raised for first time on appeal are waived). Even
       assuming DeMarzo did try to raise these conversations before the trial court, they would
       likely have been barred as hearsay–out-of-court statements offered to prove the truth of the
       matter asserted, namely, that Harris prepared Patricia’s will or exercised undue influence
       over her. (As for any contention that Patricia wanted to change her will, there is no evidence
       suggesting she tried to do so during the five years between the date she signed it and the date
       she died.)
¶ 34        Lastly, DeMarzo contends the trial court erred in granting Harris’ motion for summary
       judgment. He asserts that even excluding the conversation between Patricia and Panagakis, a
       genuine issue of material fact remains regarding whether Harris prepared Patricia’s will or
       exercised undue influence over her. To support his argument, DeMarzo cites Harris’
       inconsistent testimony, noting that at the hearing on the formal proof of will and during his
       deposition, he stated both that Patricia told him she prepared the will and that she did not tell
       him she wrote it but that he assumed she did. DeMarzo also asserts there is a genuine issue of
       material fact as to whether Harris was acting as Patricia’s attorney and her fiduciary by
       telling her that her estate would go to DeMarzo if she died without a will and as to what role
       Harris played in helping Patricia get her will notarized.
¶ 35        As noted, absent the alleged conversation between Patricia and Panagakis, which the trial
       court properly excluded, DeMarzo presents no evidence showing that Harris drafted
       Patricia’s will or unduly influenced her in making her bequests. Harris’ inconsistent
       testimony does not raise a genuine issue of material fact that he played any role in drafting
       her will. Further, although DeMarzo correctly asserts that it would be improper for Harris to
       draft a will bequeathing to himself part of her estate, because there is no evidence that he did
       so, the trial court properly granted Harris’ motion for summary judgment.

¶ 36                                         CONCLUSION
¶ 37       The trial court correctly excluded as hearsay the conversation between Patricia and
       Panagakis. Absent evidence of a genuine issue of material fact that Harris prepared Patricia’s
       will or unduly influenced her, the trial court did not err in granting summary judgment in
       Harris’ favor and dismissing the petition to contest the will.

¶ 38      Affirmed.




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