Keep Your Friends Close and Your Enemies Closer: Caregiver “Friend” Can Pursue Claims Against Estate for Quantum Meruit Compensation Despite Conviction of Misdemeanor Battery of Disabled Decedent
In In re Estate of Lewy, 2018 IL App (1st) 172552, 112 N.E.3d 1062, 425 Ill.Dec. 397, Alice Lewy and her husband met Lisa Dudley one fateful day in 1991 at a McDonalds restaurant in Skokie. Dudley and the couple became “friends.” Mr. Lewy died in 2009. Following Mr. Lewy’s death, Dudley alleged that the friendship then turned into a professional relationship as Mrs. Lewy hired Dudley to be her full-time caregiver. Dudley claimed that she would cook, clean, drive, etc., for Lewy for little to no pay from 2009 through some time in 2015, based on Lewy’s promise that she would take care of Dudley in her will. At that time, Dudley was approximately 50 years old and Lewy was at least in her mid-eighties.
In November 2015, after Dudley had been Lewy’s “caregiver” for six to seven years, there was a physical altercation at Lewy’s home involving the women. Significant criminal charges, including three felony charges and one misdemeanor, were brought against Dudley, all arising out of the same incident. In December 2015, following a preliminary hearing, Dudley pled guilty to the charges and was convicted “only” of misdemeanor battery. As part of her plea bargain, the felony charges were dismissed. Dudley was ordered to avoid unlawful conduct with Lewy and to cease acting as her “caregiver.” In April 2016, Lewy had been diagnosed with dementia and cancer and the Cook County Public Guardian was appointed as her temporary personal and estate guardian. The Public Guardian reported that Dudley and Lewy were still having contact with each other.
Lewy died intestate, with an estate of $1.2 million, in January 2017. She left behind a brother as her sole heir. FNBC Bank and Trust was appointed as the independent administrator of Lewy’s estate. Dudley promptly filed the following against Lewy’s estate: (1) fraudulent inducement; (2) breach of contract to make a will; and (3) quantum meruit compensation in the amount of $1.226 million for “caregiving services she rendered at the rate of $40 per hour for 12 hours every day between 2009 and 2015.” 2018 IL App (1st) 172552 at ¶7. In its motion to dismiss Dudley’s claims, FNBC alleged that Dudley was barred from asserting claims based on the elder abuse and neglect statute, 755 ILCS 5/2-6.2(b). The trial court granted FNBC’s motion to dismiss based on Dudley’s misdemeanor battery conviction. Dudley filed a motion to reconsider in which she (1) raised a statutory interpretation argument; and (2) suggested she amend her pleading to raise only the quantum meruit compensation claim. Her motion was denied. On appeal, Dudley limited her arguments to only the quantum meruit compensation claim.
On appeal, the appellate court did not address the statutory interpretation issue because it held that “[Dudley’s] misconduct did not fit within the legislature’s limited definition of ‘Abuse’ for purposes of the Elder Abuse and Neglect Act. 755 ILCS 5/2-6.2 (West 2014).” 2018 IL App (1st) 172552 at ¶12. Dudley pled guilty to a misdemeanor, and all felony charges were dismissed. Due to the plain language in the statute, the appellate court was left with no choice but to allow her to pursue her claims for quantum meruit compensation as Lewy’s caregiver, notwithstanding that the court acknowledged Dudley was abusive toward Lewy.
Stuck Between a Rock and a Hard Place? Pro Se Petitioner Cannot Seek Appointment as Administrator of Decedent’s Estate in Probate Court and Cannot Appeal Without a Lawyer
In In re Estate of Mattson, 2019 IL App (1st) 180805, Carol Mattson died on May 4, 2016. She was survived by three adult children as her heirs. Almost one year later, one of Mattson’s sons, Daniel Houlihan, filed a petition pro se asking the court to appoint him as the administrator of Mattson’s estate. At first, Houlihan failed to appear and the trial court struck his petition. After approximately five additional attempts at having his “day in court” to have the petition heard (including pro se motions filed by Houlihan), Houlihan was ultimately unsuccessful. The trial court had entered orders “for [an] attorney to appear” and one never did. 2019 IL App (1st) 180805 at ¶3. In March 2018, the trial court dismissed Houlihan’s petition to be appointed as the administrator of Mattson’s estate based on the fact that he was not an attorney and “could not represent the legal interests of an estate pro se.” 2019 IL App (1st) 180805 at ¶1.
Houlihan filed an appeal to the trial court’s order denying his petition. The appeal was also filed pro se. The appellate court struck Houlihan’s brief and dismissed his appeal for essentially the same reason that the trial court dismissed the probate petition. The appellate court cited 705 ILCS 205/1 (“An individual not duly authorized to practice law cannot represent another in a court of law.”) and Ratcliffe v. Apantaku, 318 Ill.App.3d 621, 742 N.E.2d 843, 252 Ill.Dec. 305 (1st Dist. 2000). In Ratcliffe, based on 705 ILCS 205/1, a plaintiff was denied the right to proceed pro se as a special administrator in a medical negligence/wrongful death case (Ratcliffe was not a probate case). In Mattson, supra, the First District stated:
Moreover, this rule includes a non-attorney seeking to personally represent the legal interests of an estate. See Ratcliffe, 318 Ill.App.3d at 626, 252 Ill.Dec. 305, 742 N.E.2d 843 (citing Waite v. Carpenter, 1 Neb.App. 321, 496 N.W.2d 1, 5 (1992)) (stating, “ ‘[t]his is not to say that personal representatives must be attorneys, but, rather, that one who seeks to represent the legal interests of the personal representative must be an attorney’ ”). 2019 IL App (1st) 180805 at ¶6.
There is a lengthy dissenting opinion in this case. The dissent emphasized that Houlihan, in his attempt to petition the lower court to open a probate estate for his mother, and seek appointment as the administrator, was not representing the legal interests of his mother’s estate. “He represents his own interest in serving as administrator, and need not hire an attorney to file the petition.” 2019 IL App (1st) 180805 at ¶13. He is not filling the petition on “behalf” of anyone. This is an important distinction, and one that the dissent believed the majority may have overlooked. The majority opinion also mentioned that Houlihan stated in his brief that he sought not only to be appointed as the administrator, but that he planned to assert certain claims against his sister for misconduct with respect to his mother’s assets. Those are claims that Houlihan could not assert as independent (or even as supervised) administrator. However, his “intention” to file those claims should not have deterred the court from considering his petition from the outset.
Based on Houlihan’s luck to date, I would guess this might be the last we hear from him, but, in the meantime, it would appear that Mattson’s estate cannot be opened unless Houlihan or his remaining sibling (one has since passed away) hires an attorney.
I hope you enjoyed this month’s Estate Planning & Probate FLASHPOINTS. Until next month.
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