{ "id": 2491075, "name": "In re ESTELLE S. ZARZYCKI, a Disabled Person", "name_abbreviation": "In re Zarzycki", "decision_date": "1990-04-06", "docket_number": "No. 1-88-2775", "first_page": "868", "last_page": "874", "citations": [ { "type": "official", "cite": "196 Ill. App. 3d 868" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "518 N.E.2d 1374", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "166 Ill. App. 3d 30", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5069809 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0030-01" ] }, { "cite": "104 F.R.D. 181", "category": "reporters:specialty", "reporter": "F.R.D.", "year": 1985, "pin_cites": [ { "page": "186-87" } ], "opinion_index": 0 }, { "cite": "532 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "601" } ], "opinion_index": 0 }, { "cite": "177 Ill. App. 3d 615", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3621787 ], "weight": 3, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0615-01" ] } ], "analysis": { "cardinality": 645, "char_count": 12529, "ocr_confidence": 0.748, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08137752432670785 }, "sha256": "3dfb6f6bfe3f42d334b4a746c039a331bbf8be545c62be8573485e809b72d68a", "simhash": "1:ee883493774c4445", "word_count": 1979 }, "last_updated": "2023-07-14T18:37:27.698771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTELLE S. ZARZYCKI, a Disabled Person." ], "opinions": [ { "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nThis is an appeal from the award of attorney fees and costs, pursuant to section 2 \u2014 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-611).\nWe affirm.\nAlice Quail (Alice), Richard Zarzycki (Richard), and.Shirley Hunter (Shirley) are the children of Estelle S. Zarzycki (Zarzycki).\nOn September 9, 1983, at Alice\u2019s urgings, Zarzycki executed a trust and pour-over will. Chicago Title & Trust Company (Chicago Title) was named trustee in the trust and executor of the will.\nThirteen days later, on September 22, 1983, Zarzycki revoked the September 9, 1983, trust agreement and will and executed, instead, a self-declaration of trust and new pour-over will. She also executed, on September 24, 1983, a document giving Richard durable power of attorney. Richard and Shirley (together, respondents) were named successor co-trustees of the new trust and executors of the new will.\nOn January 27, 1986, Alice filed an action in the probate division of the circuit court to appoint a guardian for Zarzycki because Zarzycki suffered from Alzheimer\u2019s disease. Following a hearing, on October 6, 1986, the circuit court appointed Richard plenary guardian of Zarzycki\u2019s estate and Alice guardian of her person.\nOn September 9, 1987, Alice filed a petition to set aside the September 22, 1983, trust and power of attorney, alleging Zarzycki was incompetent by reason of Alzheimer\u2019s disease and was induced by respondents to execute the documents.\nTrial on the petition commenced in March 1988. At the conclusion of Alice\u2019s case in chief, respondents moved for, and were granted, a directed verdict.\nSubsequently, respondents moved for sanctions against Alice pursuant to section 2 \u2014 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2\u2014611) and were awarded $16,988.60 for attorney fees and costs. The record indicates the trial judge based the award of sanctions on the determination that no evidence was presented that Zarzycki was mentally incapable of executing the September 22, 1983, trust and the power of attorney, or that she was induced to do so.\nThis appeal followed.\nOpinion\nUnder the operative language of section 2 \u2014 611, an attorney\u2019s signature on a pleading \u201cconstitutes a certificate by him that he has read the pleading *** [and] to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose[.]\u201d Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 611.\nWe note the contentions raised by Alice on appeal relate to the \u201cwell grounded in fact and is warranted by existing law\u201d clause of section 2 \u2014 611. Essentially, Alice argues the trial judge awarded sanctions as punishment for Alice\u2019s, failure to present sufficient evidence to persuade the court. Alice concedes she presented no direct evidence at trial of Zarzycki\u2019s mental condition at the time the second trust and power of attorney were executed. However, Alice argues evidence in the record of other events, near in time to execution of the documents, indicated Zarzycki lacked the requisite mental capacity. Specifically, Alice notes testimony, at trial, of Dr. Edward John Herba and the testimony of Dr. Steven Alan Berman, during the 1986 guardianship proceeding. Alice also points to a letter dated May 13, 1988, from Dr. Bruce Naughton, which was not part of the evidence presented at trial. Alice also argues Zarzycki executed the power of attorney two days after the trust was executed, apparently suggesting that act evinces respondents\u2019 own concern for Zarzycki\u2019s mental condition. Finally, Alice argues the trial judge, himself, precluded evidence of the ultimate fact issue by precluding Alice from testifying as to her opinion of Zarzycki\u2019s mental condition.\nIn Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595, the appellate court, in a detailed discussion, set out considerations underlying imposition of sanctions relative to whether pleadings are \u201cwell grounded in fact,\u201d citing comments concerning Rule 11 of the Federal Rules of Civil Procedure, the counterpart of section 2 \u2014 611. In explaining what is required by the obligation of reasonable inquiry into the facts to support a legal claim or defense, the court noted the following observation:\n\u201c \u2018If the rule is to have meaning, those facts must consist of admissible evidence or at least be calculated to lead to such evidence. They need not be undisputed or indisputable but they must be sufficiently substantial to support a reasonable belief in the existence of a factual basis for the paper.\u2019 \u201d (Anderson, 177 Ill. App. 3d at 624, 532 N.E.2d at 601, quoting Schwarzer, Sanctions Under the New Federal Rule 11 \u2014 A Closer Look, 104 F.R.D. 181, 186-87 (1985).)\nWe note that once a trial judge has made a determination that sanctions are proper, courts of review are constrained to affirm that determination absent a showing that the trial judge abused his discretion. Anderson, 177 Ill. App. 3d 615, 532 N.E.2d 595.\nAfter examining the record and reviewing Alice\u2019s contentions on appeal, we cannot conclude imposition of sanctions constituted an abuse of discretion.\nAt trial, Alice stated she arranged for Zarzycki to execute the initial trust with Chicago Title as trustee because Zarzycki \u201cdid not want any of her children to be trustees.\u201d However, two days after establishing the trust, Zarzycki indicated she was upset by the arrangement because she did not have control of her money. The second trust was established thereafter.\nAlice admitted that in August 1983, Shirley had planned to travel to Chicago from Arizona to accompany Alice in arranging an estate plan. Alice admitted, however, she tried to have Zarzycki execute a plan before Shirley arrived. Alice also admitted that her discussions with Zarzycki in 1983 regarding an estate plan were done deliberately without Richard\u2019s knowledge. Alice further acknowledged that on September 9, 1983, without telling Richard and against Shirley\u2019s wishes, she had Zarzycki execute the plan. Alice admitted she did not tell Zarzycki Richard had not been informed and never informed Raymond Groble, the attorney who assisted in the execution of both trusts, that Richard was not told of her efforts to set up the plan or of Shirley's objection. After the plan had been executed, Shirley had asked Alice to return to Groble\u2019s office to execute another estate plan, but Alice had refused. Alice also declined Groble\u2019s request to be present at his office when the second plan was discussed. Last, Alice admitted she did not want Richard to be the trustee of Zarzycki\u2019s trust.\nRegarding indication of Zarzycki\u2019s mental condition, Alice stated that Zarzycki had renewed her driver\u2019s license in 1983 and 1985, and that, in 1984, Alice and her husband had given Zarzycki a car. Further, in 1983, Zarzycki sold a building she owned and, in 1984, Zarzycki had asked Alice to repay a personal loan given in 1980.\nDr. Edward John Herba, a neurologist, testified that on July 7, 1983, he examined Zarzycki at Presbyterian-St. Luke\u2019s Hospital, where Zarzycki was hospitalized after falling from a ladder. Based on his examination and Zarzycki\u2019s patient history, which indicated Zarzycki had experienced an \u201cepisode\u201d of confusion approximately one month prior to her admission into the hospital, he believed Zarzycki might have had a \u201cparoxysmal central nervous system disorder.\u201d Herba explained that disorder as \u201can episodic sudden onset period where there is compromise of the central nervous system.\u201d Herba testified he also believed Zarzycki might have \u201chad a seizure disorder to account for the paroxysmal condition\u201d or \u201ca circulatory deficit, which is sometimes aecompanie[d] by paroxysmal disorders.\u201d\nOn cross-examination, Herba testified that Zarzycki\u2019s patient history disclosed that, two years prior to admission, Zarzycki received medication for a \u201cleft carotid bruise.\u201d From then until she suffered the episode of confusion, Zarzycki\u2019s neurological condition was normal. The history also reported that, upon admission at the hospital, Zarzycki was alert, knew what time it was, knew where she was, knew who she was, and her behavior was otherwise appropriate. Herba testified he found Zarzycki to be alert and of appropriate orientation. Herba also testified Zarzycki signed a consent form to allow a \u201ccarotid angiogram procedure\u201d after Zarzycki had been informed of attendant complications. Herba admitted he had no opinion as to what Zarzycki\u2019s condition might have been in September 1983.\nDr. Steven Alan Berman, another neurologist, testified during the 1986 guardianship proceeding that he examined Zarzycki on June 4, 1986. Based on that examination, as well as Zarzycki\u2019s prior patient history, he reached a conclusion that Zarzycki probably suffered from Alzheimer\u2019s disease. However, Berman testified that, in his opinion, Zarzycki, at that time, was \u201cpartially capable\u201d of making personal and financial decisions and was able to form \u201cbroad preferences as to how she wish[ed] to conduct her life.\u201d Berman admitted he could not say that \u201cthree years before[,] [Zarzycki] would be incapable of doing anything for herself.\u201d\nThe above evidence does not support Alice\u2019s argument that the petition was well grounded in fact. As conceded, no direct evidence was presented to establish Zarzycki\u2019s mental state on September 9, 1983. Further, no basis exists in the record to infer from circumstantial evidence presented that the petition\u2019s allegations, in that respect, were well grounded in fact. Neither Herba nor Berman stated any conclusion about Zarzycki\u2019s mental condition as of September 1983. Alice\u2019s own testimony similarly failed in that respect. More significantly, Alice\u2019s testimony is indicative of Alice\u2019s personal displeasure in Richard\u2019s involvement in Zarzycki\u2019s financial affairs, rather than of concern regarding validity of the second trust and power of attorney. In fact, Alice admitted that, only 13 days prior to execution of the trust, she, herself, had arranged for Zarzycki to execute a trust and pour-over will without Richard\u2019s knowledge and against Shirley\u2019s wishes.\nNor are we persuaded by the other contentions raised by Alice regarding the May 13, 1988, letter of Dr. Bruce Naughton, the trial judge\u2019s preclusion of Alice\u2019s opinion testimony, or the fact that the power of attorney was executed two days following creation of the self-directed trust.\nAs to the letter, Alice concedes it was not evidence presented at trial. However, even considering its contents as such, the letter merely cites the \u201ccontinuing decline\u201d of Zarzycki\u2019s mental state \u201cfor at least five years,\u201d and, at best, is no more helpful to Alice than the testimony of Herba and Berman, above.\nWe find Alice\u2019s argument regarding preclusion of opportunity to testify concerning her opinion of Zarzycki\u2019s mental condition irrelevant regardless of whether preclusion of that testimony was legally proper. The allegations of the petition itself indicate what Alice\u2019s opinion was. Here, precluding opportunity to state the obvious can provide little foundation to assert the petition\u2019s allegations were well grounded in fact when, with opportunity at trial to establish such facts directly or circumstantially, Alice failed to do so.\nWe consider Alice\u2019s argument pertaining to the motive behind execution of the power of attorney two days after creation of the second trust mere speculation.\nFinally, we note no evidence in the record exists respecting exercise of undue influence on the part of respondents.\nTherefore, while we understand section 2 \u2014 611 is not intended to provide means to penalize unsuccessful litigants (Prevender v. Thonn (1988), 166 Ill. App. 3d 30, 518 N.E.2d 1374), where, as here, the record contains no basis to conclude the trial judge abused his discretion in awarding sanctions, we must affirm.\nAffirmed.\nMURRAY and GORDON, JJ., concur.", "type": "majority", "author": "JUSTICE LORENZ" } ], "attorneys": [ "Steven J. Rosenberg, P.C., of Chicago, for appellant.", "Vedder, Price, Kaufman & Kammholz, of Chicago (Richard E Zehnle, of counsel), for appellee Richard C. Zarzycki.", "Wildman, Harrold, Allen & Dixon, of Chicago (Joseph P. Switzer, of counsel), for appellee Shirley M. Hunter." ], "corrections": "", "head_matter": "In re ESTELLE S. ZARZYCKI, a Disabled Person.\nFirst District (5th Division)\nNo. 1\u201488\u20142775\nOpinion filed April 6, 1990.\nRehearing denied August 23, 1990.\nSteven J. Rosenberg, P.C., of Chicago, for appellant.\nVedder, Price, Kaufman & Kammholz, of Chicago (Richard E Zehnle, of counsel), for appellee Richard C. Zarzycki.\nWildman, Harrold, Allen & Dixon, of Chicago (Joseph P. Switzer, of counsel), for appellee Shirley M. Hunter." }, "file_name": "0868-01", "first_page_order": 890, "last_page_order": 896 }