{ "id": 5533928, "name": "JOSEPH FRANK McGILL, a Minor, et al., by Phyllis McGill Best, their Mother and Next Friend, Plaintiffs-Appellants, v. NICHOLAS J. LAZZARO et al., Defendants-Appellees", "name_abbreviation": "McGill v. Lazzaro", "decision_date": "1980-12-30", "docket_number": "No. 79-1676", "first_page": "393", "last_page": "396", "citations": [ { "type": "official", "cite": "92 Ill. App. 3d 393" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "388 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill. App. 3d 434", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3241411 ], "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0434-01" ] }, { "cite": "384 N.E.2d 426", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 611", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3316267 ], "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0611-01" ] }, { "cite": "384 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 676", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3319382 ], "pin_cites": [ { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0676-01" ] }, { "cite": "111 Ill. App. 567", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2553402 ], "year": 1956, "pin_cites": [ { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/ill-app/111/0567-01" ] }, { "cite": "133 N.E.2d 535", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill. App. 2d 569", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5151864 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/9/0569-01" ] }, { "cite": "167 N.E.2d 442", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "25 Ill. App. 2d 455", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5786822 ], "year": 1956, "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/25/0455-01" ] }, { "cite": "91 Ill. 617", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2753477 ], "year": 1960, "pin_cites": [ { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/ill/91/0617-01" ] }, { "cite": "116 N.E. 693", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1879, "opinion_index": 0 }, { "cite": "279 Ill. 99", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4883255 ], "year": 1879, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/ill/279/0099-01" ] }, { "cite": "395 N.E.2d 1070", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 212", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3288212 ], "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0212-01" ] }, { "cite": "379 N.E.2d 16", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 151", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5622354 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0151-01" ] } ], "analysis": { "cardinality": 478, "char_count": 7458, "ocr_confidence": 0.916, "pagerank": { "raw": 1.140155399594636e-07, "percentile": 0.5782663390800005 }, "sha256": "52604d70cddc1363a595322b5d9029d87918168b5cd1dc715cccd077eb3d0d6b", "simhash": "1:f1fa65c0233c4ec5", "word_count": 1195 }, "last_updated": "2023-07-14T15:16:53.928123+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOSEPH FRANK McGILL, a Minor, et al., by Phyllis McGill Best, their Mother and Next Friend, Plaintiffs-Appellants, v. NICHOLAS J. LAZZARO et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. JUSTICE STAMOS\ndelivered the opinion of the court:\nPlaintiff Phyllis McGill Best brought an action on behalf of the five minor children of decedent Charles McGill. Mrs. Best is the former wife of the decedent and the mother of his children. The action, naming Nicholas Lazzaro and Milton Ruben as parties defendant, sought to avoid an agreement between Lazzaro and Charles McGill. The suit also contained a legal malpractice claim against Ruben. Charles McGill and Lazzaro had been business partners; Ruben, their attorney, had drafted an allegedly unconscionable agreement whereby McGill was to pay a certain sum to Lazzaro, or else forfeit his interest in their jointly held business. The sum was not paid, McGill died, and Lazzaro claimed full ownership of the business. The McGill children, claiming to be the \u201cheirs at law\u201d of Charles McGill, sought a declaration that the agreement be held void, and that Lazzaro reimburse plaintiffs for the value of Charles McGill\u2019s portion of the business. The malpractice claim against Ruben seeks damages for McGill\u2019s losses on account of the allegedly inequitable agreement drafted by Ruben.\nAfter the instant action was filed, defendant Ruben died, and the trial court dismissed the action as to him. This court reversed that decision in McGill v. Lazzaro (1978), 62 Ill. App. 3d 151, 379 N.E.2d 16, where the only issue on appeal was the survivability of attorney malpractice claims. After remand, plaintiffs amended their complaint to add a third count joining the deceased defendant\u2019s law partners, Bernard Kaplan and Robert Lasky. Counsel for Ruben, Kaplan, and Lasky then filed a motion to dismiss the complaint as to them. Judge Gomberg in the trial court granted this motion on July 18, 1979, finding that the plaintiffs lacked standing to bring the suit, and that the legal malpractice claim was inadequately pleaded. On August 17, 1979, Judge Elward denied with prejudice plaintiffs\u2019 motion to amend their complaint. The proposed amendment would have substituted Phyllis McGill Best, in her capacity as executor of Charles McGill\u2019s estate, as plaintiff; Judge Elward denied the motion as defective on its face, and noted that no proposed amended complaint had been presented to the court. Plaintiffs then filed the instant appeal, asking this court to reverse the orders of July 18 and August 17, 1979.\nNotwithstanding the designated errors in plaintiffs\u2019 notice of appeal, we find that plaintiffs have waived appeal as to Judge Elward\u2019s order of August 17, 1979. During oral argument of the instant appeal, this court asked plaintiffs\u2019 attorney if he had attempted to amend the complaint after Judge Gomberg\u2019s July 18 order of dismissal. Plaintiffs\u2019 attorney responded, \u201cThat petition, or motion, was filed with Judge Elward sometime later without an amended complaint attached, and it was denied. We\u2019re not arguing about that decision.\u201d Furthermore, we note that plaintiffs\u2019 appellate brief fails to make any argument concerning the validity of the August 17 order. Points not argued in an appellant\u2019s brief are waived. See Ill. Rev. Stat. 1979, ch. 110A, par. 341(e)(7); City of Chicago v. Cosmopolitan National Bank (1979), 77 Ill. App. 3d 212,218,395 N.E.2d 1070.\nJudge Gomberg\u2019s order of July 18 is properly before this court. That order of dismissal was based on two grounds: the premise that plaintiffs were not the proper parties to bring the action, and the finding that counts II and III of the complaint (count II joining Ruben, and count III joining his law partners) pleaded no proper cause of action. If either of these grounds is sufficient, the trial court must be affirmed. We consider the standing issue first.\nPlaintiffs herein are asserting a claim on behalf of their deceased father. The complaint states that they are his \u201cheirs at law,\u201d but reveals no authorization for plaintiffs to make a claim on behalf of their father\u2019s estate. The well-established rule in this State is that the executor or administrator of a decedent\u2019s estate has standing to file suit on behalf of the decedent, but the legatees, heirs, and devisees have no such standing. (Claussen v. Claussen (1917), 279 Ill. 99, 105, 116 N.E. 693; McLean County Coal Co. v. Long (1879), 91 Ill. 617, 619; Boghosian v. Mid-City National Bank (1960), 25 Ill. App. 2d 455, 460, 167 N.E.2d 442; Mutual National Bank v. Winkelman (1956), 9 Ill. App. 2d 569, 133 N.E.2d 535 (abstract); Jaques v. Ballard (1904), 111 Ill. App. 567,571; 19 Ill. L. & Prac. Executors ir Administrators \u00a7281, at 256 (1956).) This rule has been applied to disallow an action where the plaintiff was in fact the executrix, but did not maintain the action in her official capacity. (See Jaques, at 571.) Plaintiffs argue that, regardless of whether or not their mother has been designated executrix or administratrix of the estate, they are the real parties in interest with respect to their deceased father\u2019s estate, and they should be allowed to bring this action. This argument, however, assumes that plaintiffs will be the sole claimants to their father\u2019s estate, an assumption which this court may not properly make.\nThe trial court\u2019s alternative ground for dismissal of the complaint was that plaintiffs failed to state a cause of action. Specifically, the trial court found that plaintiffs \u201cabsolutely have not shown any ultimate facts showing in what fashion he [defendant Ruben] has committed legal malpractice in the execution of that agreement.\u201d Plaintiffs\u2019 complaint charges that Ruben \u201cnegligently breached and violated his duties in that he prepared and had the plaintiffs\u2019 decedent execute the said proported [sic] agreement, which was completely inequitable to the plaintiffs\u2019 decedent and which contained inadequacy of consideration so gross as to shock the conscience.\u201d\nDefendants\u2019 motion to dismiss admits, for purposes of review, all well-pleaded facts (see McCauley v. Chicago Board of Education (1978), 66 Ill. App. 3d 676, 677, 384 N.E.2d 100), but does not admit conclusions of law or conclusions of fact unsupported by specific allegations. (See Zagar v. Gomberg (1978), 66 Ill. App. 3d 611, 612, 384 N.E.2d 426.) In the case at bar, plaintiffs\u2019 complaint is rife with conclusory language, but fails to include any facts which might show what acts of defendant were negligent, and how those acts caused injury to plaintiffs. In the absence of specific allegations, the mere characterization of defendants\u2019 acts as negligent is insufficient to warrant denial of a motion to dismiss. Cf. Cipolla v. Bloom Township High School District (1979), 69 Ill. App. 3d 434, 437, 388 N.E.2d 31 (characterization of certain acts as willful and wanton misconduct is insufficient to withstand a motion to dismiss).\nWe find that either of the trial court\u2019s stated reasons for dismissing the action is sufficient. Accordingly, the judgment of the trial court is affirmed.\nAffirmed.\nDOWNING and HARTMAN, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE STAMOS" } ], "attorneys": [ "O\u2019Reilly & Cunningham, of Wheaton, for appellants.", "Haskell & Perrin, of Chicago, for appellee Nicholas J. Lazzaro.", "Feiwell, Galper & Lasky, of Chicago (Willis R. Tribler, Mitchell A. Orpett, and Michael Braun, of counsel), for appellees Milton Ruben and Ruben, Kaplan & Lasky." ], "corrections": "", "head_matter": "JOSEPH FRANK McGILL, a Minor, et al., by Phyllis McGill Best, their Mother and Next Friend, Plaintiffs-Appellants, v. NICHOLAS J. LAZZARO et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 79-1676\nOpinion filed December 30, 1980.\nO\u2019Reilly & Cunningham, of Wheaton, for appellants.\nHaskell & Perrin, of Chicago, for appellee Nicholas J. Lazzaro.\nFeiwell, Galper & Lasky, of Chicago (Willis R. Tribler, Mitchell A. Orpett, and Michael Braun, of counsel), for appellees Milton Ruben and Ruben, Kaplan & Lasky." }, "file_name": "0393-01", "first_page_order": 415, "last_page_order": 418 }