2021 IL App (1st) 200852-U

No. 1-20-0852

Order filed October 20, 2021

Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

PETER SMITH ELY, as Executor and Successor Trustee of the MSA Trust, the MSB Trust, the MSE Trust, the Cade Family Trust, and the Mary Cade Smith Trust, PETER SMITH ELY, as Successor Trustee of the Mary Cade Smith Declaration of Trust of 1985, PETER SMITH ELY, BRUCE GRAHAM ELY, SUSAN BURCH, KAREN ANDERSEN DAVIS, STEVEN J. ANDERSEN, AND STANLEY G. CADE, Plaintiffs-Appellants, v. RUTH PIVAR, ESQ., DLA PIPER, LLP, UNGARETTI & HARRIS, ROBERT WILNEFF, CBIZ MHM, LLC, & MAYER HOFFMAN MCCAIN, P.C., Defendants. (Ruth Pivar, Esq., DLA Piper, LLP, Robert Wilneff, CBIZ MHM, LLC, & Mayer Hoffman McCain, P.C., Appellees).

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Appeal from the Circuit Court of Cook County. No. 15 L 8387 Honorable Diane M. Shelley, Judge Presiding.

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JUSTICE BURKE delivered the judgment of the court. Presiding Justice Gordon and Justice McBride concurred in the judgment.

ORDER

¶ 1 Held: We reverse and remand for further proceedings where there are questions of fact precluding the entry of summary judgment. We also find that the trial court erred in dismissing plaintiffs’ claim for conspiracy as duplicative.

¶ 2 This appeal arises from the circuit court’s grant of summary judgment in favor of

defendants Ruth Pivar, Esq. and DLA Piper, LLP (Pivar Defendants) and defendants Robert

Wilneff, CBIZ MHM, LLC (CBIZ), and Mayer Hoffman McCann, P.C. (Wilneff Defendants) on

Plaintiffs’, Peter Smith Ely, as Executor and Successor Trustee of the MSA Trust, the MSB Trust,

the MSE Trust, the Cade Family Trust, and the Mary Cade Smith Trust, Peter Smith Ely, as

Successor Trustee of the Mary Cade Smith Declaration of Trust of 1985, Peter Smith Ely (Peter),

Bruce Graham Ely (Bruce), Susan Burch, Karen Andersen Davis (Karen Andersen), Steven J.

Andersen, and Stanley G. Cade, claims related to the management of five trust accounts. The trusts

were created in 1966 by Dr. Herman Smith for the benefit of his three daughters, Jean Ely (Jean),

Joan Andersen (Joan), and Burch as well as his fourth wife, Mary Cade Smith, and her brothers

John (John) and Harry (Harry) Cade. Jean is the now-deceased mother of plaintiffs Peter and

Bruce, and Joan is the now-deceased mother of plaintiffs Karen and Steven Andersen.

¶ 3 In 1989, Cade Smith began receiving distributions from the trusts. In 1999, Cade Smith

retained Pivar as her personal attorney to work on her estate plan. In 2001, Wilneff became trustee

of the trusts. The trusts were depleted in 2009. Cade Smith died in 2014.

¶ 4 In 2015, plaintiffs filed suit against the Pivar Defendants and Wilneff Defendants alleging

that the defendants failed to properly communicate with the plaintiffs and advise them of their

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rights as beneficiaries of the trusts. Plaintiffs asserted that Cade Smith was the only beneficiary to

receive distributions from the trusts, and depleted the trusts before plaintiffs were even aware of

their status as beneficiaries. Plaintiffs contended that defendants failed to inform plaintiffs of their

rights and obfuscated Cade Smith’s activities with regards to the trusts.

¶ 5 In their complaint, plaintiffs raised claims of gross negligence, legal malpractice, breach

of fiduciary duty, conspiracy, fraud, and aiding and abetting against defendants. The court

dismissed plaintiffs’ conspiracy claim as duplicative of its other claims. The court subsequently

dismissed plaintiffs’ claims of legal malpractice, breach of fiduciary duty, and fraud against the

Pivar Defendants. Finally, the court granted summary judgment in favor of defendants on

plaintiffs’ remaining claims finding that they were barred by the accounting and legal malpractice

statutes of repose. Plaintiffs appealed.

¶ 6 On appeal, plaintiffs contend that the circuit court erred in applying the statute of repose

for accounting malpractice with regard to Wilneff’s conduct as trustee of the trusts. Plaintiffs

further assert that questions of material fact as to their claims of fraudulent concealment and

equitable estoppel should have precluded the circuit court’s entry of summary judgment,

particularly where the court erroneously relied on an appellate court decision that had been

abrogated by the supreme court. Plaintiffs also contend that the court erred in dismissing their

conspiracy claim as duplicative and that plaintiffs should have been permitted to pursue the claim

as an alternative theory of liability. For the reasons that follow, we reverse the judgment of the

circuit court and remand for further proceedings.

¶ 7 I. BACKGROUND

¶ 8 A. The Trusts

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¶ 9 The five trusts at issue in this case were created in November 1966. The trust documents

indicate that the trusts were created by Cade Smith’s parents, Wilmuth and Carroll Cade, but the

evidence and pleadings submitted in the circuit court suggest that the trusts were actually funded

by Dr. Smith.1 The five trusts were created for the benefit of Dr. Smith’s three daughters, Jean,

Joan, and Burch as well as his fourth wife, Cade Smith, and her brothers John and Harry. The five

trusts were the MSA Trust, the MSB Trust, the MSE Trust, the Mary Cade Smith Trust, and the

Cade Family Trust. The initial beneficiaries of the MSA Trust were Cade Smith and Joan, the

initial beneficiaries of the MSB Trust were Cade Smith and Burch, the initial beneficiaries of the

MSE trust were Cade Smith and Jean, the initial beneficiary of the Mary Cade Smith Trust was

Cade Smith, and the initial beneficiaries of the Cade Family Trust were Cade Smith, John, and

Harry. The initial trustees of each of the five trusts were Howard Koven and Philip Rootberg.

¶ 10 In terms of distributions from the trusts, each trust agreement provided that the trustee is

authorized “in the sole discretion of the Trustee” to make distributions from the trust “to the

beneficiary or beneficiaries” in such proportions as the trustee determines is in the “best interests

of the beneficiaries.” Each trust agreement also provided that upon the death of any of the initial

beneficiaries, the distributions would be allocated per stirpes to the descendants of the beneficiary.

The trust agreements provided, however, that the trustee should exercise its discretionary powers

“primarily to benefit each beneficiary rather than the remaindermen of each separate trust.” The

trust agreement further provided that the trustee, in making a discretionary distribution, should

consider “not merely the economic requirements of the beneficiary, but also the ability of said

1The Pivar Defendant assert that Cade Smith was also involved in funding the trusts.

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beneficiary to deal with and manage the monies or property involved.” Cade Smith had the sole

power of appointment for each trust.

¶ 11 Dr. Smith died in 1977. In 1988, Koven resigned as co-trustee of the trusts. In accordance

with the terms of the trust agreements, Rootberg and Cade Smith executed an approval and general

release, releasing Koven as co-trustee. Each of the initial beneficiaries were also sent a notice of

Koven’s resignation and executed forms accepting Jerome Marks as the new co-Trustee with

Rootberg. Joan had passed away in 1985, and therefore Cade Smith alone executed the documents

for the MSA trust and Mary Cade Smith Trust. Burch and Cade Smith executed the documents for

the MSB trust, Jean and Cade Smith executed the documents with regard to the MSE trust, and

Cade Smith, John, and Henry executed the documents with regard to the Cade Family Trust. The

separate documents listed each Jean, Burch, John, and Henry, in addition to Cade Smith, as “Trust

Beneficiary.” Burch, the only living initial beneficiary at the time of the proceedings, testified at

her deposition that when she asked Cade Smith about these documents, Cade Smith told her to

sign them and that it was none of her concern. Burch testified that she did not know what it meant

to be a trust beneficiary.

¶ 12 Burch testified that neither Dr. Smith nor Cade Smith ever talked to her about the family’s

finances or told her that she was the beneficiary of a trust. Burch testified that she was never

contacted by Koven, Rootberg, or Marks and never received a copy of the trust agreement. She

acknowledged, however, that she never attempted to contact any of them about the trusts.

¶ 13 In 1989, Cade Smith, who was now living in Georgia, began requesting distributions from

the trusts. While in Georgia, Cade Smith befriended William Paul Rogers, who was nearly 40

years younger than she was. Cade Smith began writing checks to Rogers both in exchange for his

services as a realtor and general contractor, and as gifts. Later, Cade Smith paid for Rogers to

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attend college. In 1996, Marks resigned as co-trustee of the trusts. Once again, documents were

sent to each beneficiary to acknowledge Marks’s resignation. Burch and Cade Smith signed the

documents as beneficiaries of the MSB Trust, Jean and Cade Smith executed the same documents

as beneficiaries of the MSE Trust, and John, Harry, and Cade Smith executed the documents as

beneficiaries of the Cade Family Trust. Again, Cade Smith alone executed the documents for the

MSA Trust and the Mary Cade Smith Trust. The only notable distinction between these documents

and the similar documents the beneficiaries executed in 1988, were that on the 1996 documents,

Cade Smith was identified as “current Trust Beneficiary,” while the other beneficiaries were

identified simply as “Trust Beneficiary.” Cade Smith was also identified elsewhere in the

documentation as the “current income beneficiary.”

¶ 14 In 1999, Cade Smith retained Pivar to draft an estate plan. In 2001, Rootberg sought to

resign as trustee. Wilneff retained Pivar to prepare documents to establish a plan for successor

trustees upon Rootberg’s resignation. In January 2001, Pivar sent Jean, Burch, and John the plan

for successor trustees of the trust.2 Pivar also sent a letter to Burch regarding the MSB Trust in

which she stated that “[t]he death of Jerome Marks this past year, the co-trustee of the above trust,

has necessitated the implementation of a new plan for trustee successorship.”3 Pivar prepared a

plan for successor trustees of the trusts. The plan provided that if Rootberg was ineligible, unable,

or unwilling to act as trustee, then Wilneff would become trustee of the trusts, followed by The

2Harry died prior to January 2001. 3Pivar’s notes and the letter to Burch indicate that Pivar drafted the plan for successor trustee

because of the death of Marks, who was the co-trustee. Plaintiffs point out, however, that Marks was no longer co-trustee in 2001, and assert that Pivar drafted the plan for successor trustees because Rootberg was planning to resign as trustee.

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Northern Trust Company of Chicago. Cade Smith, Jean, Burch, and John executed the documents

for their respective trusts as “beneficiary.”

¶ 15 Pivar also drafted a release and indemnification for Rootberg. In connection with his

resignation as trustee, Rootberg retained an attorney, Richard Brown. Brown sent a letter to

Rootberg regarding the trusts, indicating that he spoke to Pivar who “explained *** some of the

issues involving prior distributions from the trusts to [Cade Smith].” Brown continued that Pivar

“was concerned that trust beneficiaries other than [Cade Smith] had never received accountings

and were unaware of the trust activities. Therefore, they may be unwilling to execute a release.”

Cade Smith alone executed the release and indemnification for Rootberg. Pivar testified that she

did not send the release and indemnification to the other initial beneficiaries because in her

experience, if a person “had no involvement with the trust,” that person would not sign a release.

¶ 16 Pivar testified that she told Wilneff that she saw problems with the fact that Cade Smith

was receiving distributions from the trusts, despite the fact that her personal estate was worth as

much as the five trusts combined. Pivar testified that Wilneff told her that he made distributions to

Cade Smith from the trusts to avoid the capital gains tax.

¶ 17 In September 2001, Pivar sent notices to Jean, Burch, and John regarding Rootberg’s

resignation as trustee. The notice included a new plan for trustee successorship in which after

Wilneff was ineligible, unable, or unwilling to act as trustee of the trusts, then Peter would become

trustee, followed by Steven Andersen, Bradford Burch (Burch’s son), and then the Northern Trust

Company. Jean, Burch, and John executed those documents on behalf of their respective trusts. In

the notice, Pivar closed the letter by stating, “[i]f you should have any questions regarding the

enclosed document, please feel free to call.” Burch testified that she never attempted to contact

Pivar. Pivar testified that she never sent the five trust agreements or other information about the

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trusts to any of the initial beneficiaries because she believed that it was not her responsibility to do

so. Pivar testified, however, that she had no reason to think anything “untoward” was occurring

with the trusts because the beneficiaries had previously executed a series of documents related to

the trusts.

¶ 18 Later that year, Pivar drafted, and Cade Smith executed, a new will. In the will, Cade Smith

exercised her powers of appointment as granted to her by the trust agreements directing how

distributions from the trusts should be apportioned following her death. The updated will also

included a “No Challenge Provision,” which provided that if any beneficiary of the trusts “directly

or indirectly, contests, challenges or attacks the administration of any trust during a period when

[Cade Smith] was a beneficiary of that trust by filing suit or otherwise making a claim against the

current trustee or a former trustee, that beneficiary’s interest in all trusts *** shall cease.”

¶ 19 Pivar also drafted promissory notes whereby Cade Smith agreed to repay the trusts for the

total amount of distributions she had received from the trusts. The total value of the five promissory

notes, one for each trust, was $1,221,300, and were not payable until Cade Smith’s death. Pivar

explained that the promissory notes were made payable on Cade Smith’s death to avoid the capital

gains tax. Wilneff testified that the notes would save a substantial amount of estate tax for Cade

Smith’s estate. Pivar testified that she drafted the promissory notes because she was concerned

that Rogers had “control” over Cade Smith. She drafted the promissory notes as a way to limit

Rogers’ control. Pivar testified that the promissory notes were a mechanism to put the money back

in the trusts and under the control of the trustee and away from Rogers.4 Pivar testified that she

4Wilneff testified that the promissory notes were never repaid because much of Cade Smith’s

personal assets were allocated to stocks and her condominium unit in Georgia. During the 2008 financial crisis, Cade Smith lost the majority of her net worth and was unable to repay the promissory notes.

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could not be sure that once all of the trusts’ assets had been distributed to Cade Smith that Cade

Smith would not give all of her money to Rogers.

¶ 20 Pivar explained that because of Cade Smith’s power of appointment under the trusts, she

could essentially control the distribution of the trust money after her death by cutting beneficiaries

out of the trust. Pivar testified that Cade Smith told her that she wanted her estate, including the

distributions from the trusts, to be divided “60/40,” with 60 percent of her estate going to the Smith

family and 40 percent of her estate going to the Cade family. Pivar testified that she drafted the

promissory notes to put assets back into the trusts to ensure the “60/40” split. Pivar testified that

she added the “No Challenge Provision” to Cade Smith’s will for the same reason.

¶ 21 In 2009, all of the money from the trusts had been distributed. Cade Smith died in May

2014. Following Cade Smith’s death, Wilneff sent Peter, and the other remaindermen

beneficiaries, a “Receipt, Consent and Release.” This document stated that the undersigned would

consent to Wilneff terminating the trust upon the receipt of $1,200, which represented the

undersigned’s share of Cade Smith’s declaration of trust. By signing the “Receipt, Consent and

Release,” the undersigned also agreed to release Wilneff “from any and all liability relating to his

acting as successor trustee of said trust from and after the death of Mary Cade Smith.”

¶ 22 In June 2014, Bruce and Peter began corresponding with Wilneff regarding the trusts.

Bruce sent an email to Wilneff in which he requested a copy of the trust documents. Bruce also

asked for the dates that funds were withdrawn from the trusts by Cade Smith, as well as

accountings of Cade Smith’s finances and bank accounts. Wilneff responded by email that he did

not retain files that old. He directed Bruce to Rogers who could assist with bank account

information. Wilneff represented that he had authority as successor trustee only since May 2014,

which he said was reflected in the accounting.

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¶ 23 In October 2014, an attorney from Pivar’s law firm emailed Bruce and Peter the original

trust documents, Cade Smith’s will, and informed them that Wilneff became successor trustee in

September 2001. In February 2015, Wilneff sent a letter indicating that he made a diligent effort

to locate any files maintained by CBIZ relating to Cade Smith and the five trusts. Wilneff stated

that he transmitted those files to Peter.

¶ 24 B. Plaintiffs’ Complaint

¶ 25 In August 2015, plaintiffs filed their initial complaint and in September 2017, filed their

third amended complaint. In their third amended complaint, plaintiffs asserted that despite the fact

that Jean, Burch, and Joan were initial beneficiaries of the trusts along with Cade Smith, when

Cade Smith began taking distributions from the trusts in 1989, none of the other initial beneficiaries

received notifications of the disbursements, and, in fact, none of the other initial beneficiaries even

knew that they were beneficiaries of the trusts. Plaintiffs asserted that none of the trustees,

including Rootberg and Wilneff, ever informed any of the initial beneficiaries other than Cade

Smith that they were beneficiaries and never provided any accounting information despite

providing that information to Cade Smith. Plaintiffs also contended that Pivar, as attorney for the

trusts, failed to inform the other beneficiaries of their status as beneficiaries despite owing a legal

duty to the other beneficiaries. Plaintiffs asserted that the defendants made distributions from the

trusts to Cade Smith who then gave the money to Rogers, converting distributions that were

intended for plaintiffs into gifts for Rogers. Plaintiffs also asserted that Wilneff and other trustees

made distributions directly to Rogers, who was not a beneficiary of any of the trusts. Plaintiffs set

forth seven counts against the defendants in their third amended complaint.

¶ 26 In Count I, plaintiffs asserted a claim for gross negligence against the Wilneff Defendants.

Plaintiffs contended that as trustee of the five trusts, Wilneff owed a fiduciary duty to the intended

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beneficiaries of the trusts and the plaintiffs as remainder beneficiaries. Plaintiffs asserted that

Wilneff breached his fiduciary duty by failing to disclose Rootberg’s previous breaches of

fiduciary duty, including, inter alia, failing to inform other beneficiaries of their status as

beneficiaries of the trusts and failing to provide accountings or other financial or tax

documentation to any beneficiary other than Cade Smith. Plaintiffs also asserted that Wilneff

breached his fiduciary duty by failing to disclose Pivar’s breaches of fiduciary duty, including her

failure to advise the initial beneficiaries of their status as beneficiaries. Plaintiffs further contended

that Wilneff breached his fiduciary duty by making “unfavorable loans” to Cade Smith that were

unlikely to be collected, falsely denying the existence of Cade Smith’s will, and falsely denying

any knowledge of the Cade Smith’s depletion of the trusts when contacted by Bruce and Peter in

2014.

¶ 27 Plaintiffs further asserted that Wilneff fraudulently concealed these breaches by failing to

notify the beneficiaries of their status as beneficiaries, concealing the tax returns from the

beneficiaries, and concealing disbursements made to Cade Smith and Rogers. Plaintiffs claimed

that as a result of Wilneff’s breaches of fiduciary duty, plaintiffs had been damaged in excess of

$2.8 million.

¶ 28 In Count II, plaintiffs raised a claim for legal malpractice against the Pivar Defendants.

Plaintiffs asserted that Pivar was retained by Rootberg and Wilneff to advise them for the benefit

of the beneficiaries of the trust, including plaintiffs. Plaintiffs asserted that Pivar therefore owed a

fiduciary duty to the plaintiffs. Plaintiffs contended that Pivar breached her duties by failing to

disclose the previous breaches of fiduciary duty by Rootberg, failing to disclose Wilneff’s breaches

of fiduciary duty, and failing to notify the initial beneficiaries of their status as beneficiaries.

Plaintiffs also asserted that Pivar breached her fiduciary duty by preparing loans from the trusts to

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Cade Smith that were unfavorable to the trusts and not in the best interests of the beneficiaries.

Plaintiffs contended that Pivar engaged in a conflict of interest by simultaneously representing the

individual interests of Cade Smith in detriment to the other beneficiaries of the trust and putting

Cade Smith’s interests ahead of the other beneficiaries.

¶ 29 In Count III, plaintiffs raised a claim for breach of fiduciary duty against the Pivar

Defendants. Plaintiffs asserted that contrary to the best interests of the plaintiffs, Pivar drafted a

will for Cade Smith that contained a No Challenge Provision, or in terrorem clause, which had the

effect of not only dissuading the beneficiaries of the trusts from challenging the actions of the

trustees, but also treated any beneficiary who did raise such a challenge as having predeceased

Cade Smith. Plaintiffs maintained that the inclusion of this in terrorem clause was a violation of

Pivar’s fiduciary duties to plaintiffs.

¶ 30 In Count IV, plaintiffs raised a claim for breach of fiduciary duty against Rogers. Plaintiffs

repled this claim in the third amended complaint for the sole purpose of appealing a personal

jurisdiction issue. This court has previously affirmed the circuit court’s grant of Rogers’s motion

to dismiss for lack of personal jurisdiction. See Ely v. Pivar, 2017 IL App (1st) 162241-U

(unpublished order under Supreme Court Rule 23).

¶ 31 In Count V, plaintiffs raised a claim for conspiracy against Pivar and the Wilneff

Defendants. Plaintiffs asserted that Pivar and Wilneff were aware in 2001 that they faced potential

liability for failing to provide accountings to plaintiffs and to make plaintiffs aware of the trusts’

activities. Plaintiffs contended that in August 2001, Rootberg contacted an attorney seeking advice

on how to best shield himself from liability based on his breaches of fiduciary duty while trustee.

The attorney sent a letter to Rootberg about his potential liability after consultations with both

Rootberg and Pivar. Plaintiffs maintained that both Pivar and Wilneff were aware of the letter,

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which, among other things, advised creating a new will for Cade Smith and for Cade Smith to

exercise her power of appointment contingent upon the appointees not asserting claims against the

trustee or his estate. Plaintiffs pointed out that Pivar did in fact draft a new will with an in terrorem

clause. In addition, Pivar drafted the promissory notes in September 2001 that plaintiffs assert were

never intended to be honored.

¶ 32 Plaintiffs contended that these acts were done as a part of a scheme to shield Pivar and

Wilneff from liability for past disbursements and to protect themselves from liability when making

improper disbursements in the future. Plaintiffs asserted that after 2001, Pivar and Wilneff

continued to make distributions to Cade Smith and did not notify any of the plaintiffs of the trusts’

activities. Plaintiffs contended that Wilneff and Pivar continued to carry out this scheme even after

Cade Smith’s death attempting to conceal information related to the trusts from plaintiffs. Plaintiffs

maintained that Pivar and Wilneff acted in concert to conceal these activities for the benefit of

Cade Smith.

¶ 33 In Count VI, plaintiffs raised a claim for fraud. Plaintiffs again asserted that Pivar and

Wilneff had a duty to disclose to the initial beneficiaries that they were beneficiaries of the trust,

but failed to do so. Plaintiffs maintained that rather than inform the beneficiaries of their status,

Wilneff and Pivar continued to act only in the interests of Cade Smith and continued to conceal

the disbursements from the trusts. Plaintiffs also contended that Wilneff made false statements

when he denied the existence of Cade Smith’s will to Peter and Bruce and claimed that he was not

privy to Cade Smith’s financial affairs. Plaintiffs asserted that Wilneff made these claims with the

purpose of concealing his breaches of duty.

¶ 34 Finally, in Count VII, plaintiffs raised a claim against Pivar for aiding and abetting a breach

of fiduciary duty. Plaintiffs asserted that Wilneff, as trustee, owed a fiduciary duty to plaintiffs and

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that Pivar was aware of Wilneff’s fiduciary role. Plaintiffs noted that in August 2001, Pivar

expressed concerns that the fiduciary role of trustee was not being met because the trustee was not

providing accounting to the beneficiaries and because the beneficiaries, aside from Cade Smith,

were not aware of the trusts’ activities. Plaintiffs maintained that despite these concerns, Pivar did

not take steps to notify the beneficiaries, but instead assisted in creating a new estate plan and will

for Cade Smith, and drafted the promissory notes, while permitting Wilneff to make further

improper distributions from the trusts.

¶ 35 C. Defendants’ Motions to Dismiss

¶ 36 Both the Wilneff Defendants and the Pivar Defendants filed motions to dismiss the

complaint. In their motion, the Wilneff Defendants asserted that all of plaintiffs’ claims related to

the Mary Cade Smith Trust must be dismissed because Cade Smith was the only initial beneficiary

of that trust, and, thus, neither plaintiffs nor the other initial beneficiaries of the other trusts had a

right to distributions from that trust. For similar reasons, the Wilneff Defendants contended that

all of plaintiffs’ claims related to the MSA Trust must be dismissed because Joan, the only other

initial beneficiary to that trust other than Cade Smith, died in 1985, four years before Cade Smith

received any distributions from that trust. The Wilneff Defendants also asserted that plaintiffs’

claims relating to the MSE Trust and the Cade Family Trust must be dismissed because none of

the plaintiffs were initial beneficiaries of that trust, and the other initial beneficiaries, Jean, John,

and Harry died before Cade Smith.

¶ 37 The Wilneff Defendants contended with respect the MSB Trust, the only trust for which a

valid plaintiff remained, that plaintiffs failed to state a claim for civil conspiracy because plaintiffs

alleged that Wilneff and Pivar had a principal and agent relationship, and Illinois courts have found

that a civil conspiracy cannot exist between a principal and an agent. The Wilneff Defendants also

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contended that plaintiffs failed to adequately allege an agreement between Wilneff and Pivar. The

Wilneff Defendants further asserted that plaintiffs failed to state a claim for fraud because plaintiffs

failed to allege that they had a right to receive information regarding the trusts and that Wilneff

had a duty to inform them. The Wilneff Defendants pointed out that the trust agreements provided

that the trustee should provide a beneficiary with an accounting of the trusts’ activities only upon

the receipt of a written request from the beneficiary. Wilneff Defendants contended that no

beneficiary made such a request.

¶ 38 In their motion to dismiss, the Pivar Defendants asserted that plaintiffs failed to state a

cause of action for civil conspiracy because plaintiffs failed to plead adequate facts regarding the

conspiracy. For similar reasons, the Pivar Defendants contended that plaintiffs failed to state a

cause of action for fraud and aiding and abetting.

¶ 39 In May 2018, the trial court heard oral argument on the motions to dismiss. The court

started with the plaintiffs’ standing. The court first dismissed with prejudice the MSA Trust and

the Mary Cade Smith Trust, finding that Cade Smith did not begin taking income from the MSA

Trust until after Joan died in 1985 and that Cade Smith was the only beneficiary of the Mary Cade

Smith Trust. The court also struck all of the remaindermen plaintiffs because the trust agreements

provided that the trusts were intended to benefit the initial beneficiaries, rather than the

remaindermen. The remaining plaintiffs therefore were Peter, as trustee of the MSB Trust, the

MSE Trust, and the Cade Family Trust, and Burch, individually.

¶ 40 The court then granted defendants’ motion to dismiss the conspiracy count as

“duplicative.” The court found that the claim merely stated that both Pivar and Wilneff owed duties

and violated those duties, which were identical to the arguments raised in plaintiffs’ other claims.

The court denied plaintiffs’ request to plead conspiracy in the alternative. The court then requested

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supplemental briefing on two issues related to the Pivar Defendants only: plaintiffs’ claims for

legal malpractice and breach of fiduciary duty.

¶ 41 After further pleadings, including motions to reconsider by both plaintiffs and defendants,

and supplemental briefing, the court again held a hearing on the outstanding issues in August 2018.

At the hearing, after further oral argument from the parties, the court found that as an attorney for

the trusts, Pivar did not have a duty to the third-party beneficiaries. The court therefore dismissed

Counts II (legal malpractice) and III (breach of fiduciary duty). The court also dismissed plaintiffs’

claim for fraud with respect to Pivar, and dismissed all claims against defendant Ungaretti &

Harris. The court found, however, that the aiding and abetting claim remained against Pivar and

DLA Piper. The court subsequently denied plaintiffs’ motion to reconsider.

¶ 42 D. Defendants’ Motions for Summary Judgment

¶ 43 In August 2019, defendants filed separate motions for summary judgment. In their motion,

the Pivar Defendants asserted that plaintiffs’ claims were barred by the six-year statute of repose

applicable to legal malpractice claims. See 735 ILCS 5/13-214.3(c) (West 2014). The Pivar

Defendants pointed out that plaintiffs’ claims alleged that Pivar began assisting Wilneff with the

trusts in 2001, and plaintiffs cause of action would have accrued at that time. The Pivar defendants

asserted that the six-year statute of repose therefore expired in 2007. With regard to plaintiffs’

contentions that the statute was tolled by Pivar’s fraudulent concealment and misrepresentations,

the Pivar Defendants noted that the trial court had already found that Pivar did not owe a duty to

the plaintiffs and asserted that plaintiffs had failed to present evidence of any misrepresentations

that Pivar made to induce plaintiffs into delaying filing their claims.

¶ 44 Similarly, in their motion for summary judgment, the Wilneff Defendants likewise argued

that plaintiffs’ claims were barred by the five-year statute of repose applicable to accounting

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professionals. See 735 ILCS 5/13-214.2(a)-(b) (West 2014). The Wilneff Defendants asserted that

the statute of repose applied to plaintiffs’ claims for breach of fiduciary duty and fraud. They

further contended that there was no basis for tolling the statute of repose as plaintiffs contended

because the evidence showed that the initial beneficiaries knew about the trusts since at least the

1980s, knew they were beneficiaries, and knew that the trusts were intended to benefit Cade Smith.

The Wilneff Defendants therefore asserted that there was no support for plaintiffs’ claims that the

Wilneff Defendants fraudulently concealed the facts giving rise to the cause of action. The Wilneff

Defendants asserted that if the initial beneficiaries had engaged in ordinary diligence, they could

have discovered the information the plaintiffs were now asserting was fraudulently concealed.

¶ 45 Plaintiffs filed a combined response to defendants’ motions for summary judgment

contending that the statute of repose did not bar their claims because Pivar and Wilneff

fraudulently concealed the evidence giving rise to plaintiffs’ cause of action. Plaintiffs asserted

that this improper conduct, including failing to inform the initial beneficiaries of their status as

beneficiaries and failing to provide them accountings of the trusts’ finances, tolled the statutes of

repose. Plaintiffs further contended that their claim for aiding and abetting involved disputed issues

of material fact and therefore should not be the subject of summary judgment. Plaintiffs also

asserted that the Wilneff Defendants’ motion for summary judgment on plaintiffs’ claim for fraud

should be denied because the evidence established that Wilneff concealed information about the

trusts and made misrepresentations to the beneficiaries of the trusts.

¶ 46 The circuit court ruled on the motions for summary judgment in a written order. In its order,

the court found that in 1988, Burch, the only currently living initial beneficiary, was put on notice

that she was a beneficiary of the MSB Trust when she signed the document accepting the

appointment of a successor trustee “as trust beneficiary.” The court noted that Burch contacted

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Cade Smith when she received the documents, but did not inquire further and did not formally

request information from the trusts. The court observed that none of the plaintiffs requested any

information from the trusts before 2014. The court observed that Burch received communications

about the trusts again in 1996 and 2001. The court noted the distinction, however, that in the 1996

documentation, Cade Smith was identified as “current Trust Beneficiary.” The court observed that

Burch and the other then-living initial beneficiaries, Jean and John, also received the 2001 plan for

successor trustees from Pivar. The court noted that Pivar ended the letter to the beneficiaries by

stating that they should contact her if they had any questions. The court again observed that Burch

was identified on the successor trustee plan as “Trust Beneficiary.” The court also noted that later

in 2001, when Wilneff became trustee, Burch, Jean, and John again executed documents accepting

Wilneff as the new trustee as “Trust Beneficiary.”

¶ 47 The court first addressed plaintiffs’ contentions with regard to the Wilneff Defendants. The

court observed that the last actionable conduct by the Wilneff Defendants occurred in 2009 when

the final trust assets were disbursed. Plaintiffs brought this action in August 2015. The court

therefore found that the five-year statute of repose applied to plaintiffs’ claims against the Wilneff

Defendants. The court rejected plaintiffs’ contention that the statute of repose was tolled because

the Wilneff Defendants fraudulently concealed the cause of action. The court found that Burch and

the other initial beneficiaries were put on “inquiry notice” when they executed various documents

related to the administration of the trusts. Plaintiffs could therefore only defeat an argument of an

expired statute of repose if plaintiffs showed they exercised ordinary diligence in becoming

informed within the statutory period. The court found that plaintiffs failed to meet that standard by

failing to request information, records, or other documentation. The court further found that there

were no affirmative acts by the Wilneff Defendants to fraudulently conceal their conduct. The

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court therefore granted the Wilneff Defendants’ motion for summary judgment on Counts I (gross

negligence) and VI (fraud) of the third amended complaint.

¶ 48 With regard to the Pivar Defendants, the court found that Pivar’s alleged improper conduct

began in 2001. The court therefore found that the six-year statute of repose applicable to attorneys

would bar the aiding and abetting claim as of 2007. The court found that there was no evidence

that Pivar engaged in affirmative acts designed to prevent plaintiffs from discovering their cause

of action or delay the filing of their claim. As the court found with regard to the Wilneff

Defendants, the court observed that the initial beneficiaries had ample information regarding their

status to inquire further and the fact that they did not do so did not toll the statue of repose. The

court therefore granted the Pivar Defendants’ motion for summary judgment with regard to Counts

VI (fraud) and VII (aiding and abetting) of the third amended complaint.

¶ 49 Plaintiffs filed a timely notice of appeal identifying the May 2018 order dismissing the

remaindermen plaintiffs, and dismissing Count V (conspiracy) of the third amended complaint,

the August 2018 order dismissing Counts II, III, and VI of the third amended complaint, and the

July 2020 order granting the Wilneff Defendants’ and Pivar Defendants’ motions for summary

judgment.

¶ 50 III. ANALYSIS

¶ 51 On appeal, plaintiffs contend that there were questions of fact as to defendants’ fraudulent

concealment that should have precluded the circuit court’s entry of summary judgment with

respect to their claims against both the Pivar Defendants and Wilneff Defendants. Plaintiffs also

assert that the trial court erred in dismissing Count V (conspiracy) as duplicative, and that plaintiffs

should have been permitted to plead this count as an alternative theory of liability.

¶ 52 A. Wilneff Defendants’ Fraudulent Concealment

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¶ 53 We will first address plaintiffs’ contention that the court erred in finding that the statute of

repose was not tolled by the Wilneff Defendants’ fraudulent concealment of the cause of action.

Plaintiffs assert that questions of material fact existed on this issue that should have precluded the

entry of summary judgment. Plaintiffs maintain that the court erred in relying on an abrogated and

factually distinguishable appellate court case in granting summary judgment.

¶ 54 1. Summary Judgment

¶ 55 Summary judgment is proper where the pleadings, depositions, admissions, and affidavits

on file, when viewed in a light most favorable to the nonmoving party, reveal that there is no

genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

General Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281, 284 (2002) (citing 735 ILCS 5/2-1005(c)

(West 2000)). Plaintiffs assert that a claim for fraudulent concealment cannot be disposed of at the

summary judgment stage and is instead a question of fact for the factfinder. See Doe v. Boy Scouts

of America, 2016 IL App (1st) 152406, ¶¶ 113-15. This court has recognized, however, that

summary judgment is appropriate on a claim for fraudulent concealment where the disputed facts

and undisputed facts, when viewed in a light most favorable to the nonmoving party, demonstrate

that the fraudulent concealment claim lacks merit. See, e.g., J.S. Reimer, Inc. v. Village of Orland

Hills, 2013 IL App (1st) 120106, ¶¶ 54-55; Jordan v. Lind, 176 Ill. App. 3d 530, 537-38 (1988).

We review the trial court’s grant of summary judgment de novo. Lacey, 199 Ill. 2d at 284.

¶ 56 2. Statute of Repose

¶ 57 Section 13-214.2 of the Code of Civil Procedure (Code) provides that in no event shall an

action based in tort, contract, or otherwise against a person registered pursuant to the Illinois

Accounting Act (Act) for an act or omission in the performance of professional services “be

brought more than 5 years after the date on which occurred the act or omission alleged in such

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action to have been the cause of the injury to the person bringing such action against a public

accountant.” 735 ILCS 5/13-214.2(a)-(b) (West 2014).5 A statute of repose, as distinguished from

a statute of limitations, extinguishes a cause of action after a fixed period of time, regardless of

when the action accrued and regardless of a potential plaintiff’s lack of knowledge of his or her

cause of action. DeLuna v. Burciaga, 223 Ill. 2d 49, 61 (2006).

¶ 58 However, a statute of repose is not immutable, and may be tolled in certain circumstances.

For instance, section 13-215 of the Code provides: “[i]f a person liable to an action fraudulently

conceals the cause of such action from the knowledge of the person entitled thereto, the action

may be commenced at any time within 5 years after the person entitled to bring the same discovers

that he or she has such cause of action, and not afterwards.” (Emphasis added.) 735 ILCS 5/13-

215 (West 2014). In order to prove a claim for fraudulent concealment, the plaintiff must show:

“(1) concealment of a material fact, (2) intent to induce a false belief where there

exists a duty to speak, (3) that the other party could not have discovered the truth through

reasonable inquiry and relied upon the silence as an indication that the concealed fact did

not exist, (4) that the other party would have acted differently had it known of the concealed

information, and (5) that its reliance resulted in its injury.” Ashby v. Pinnow, 2020 IL App

(2d) 190765, ¶ 34 (citing Vandenberg v. Brunswick Corp., 2017 IL App (1st) 170181, ¶

31).

5We note that plaintiffs also contend that the circuit court erred in applying the statute of repose

for accounting claims to Wilneff’s conduct as trustee because Wilneff was not performing “accounting activity” in his administration of the trusts. Plaintiffs did not raise this issue before the circuit court, but assert that we could review the issue as “plain error.” We observe that the plain error doctrine is typically only applied in criminal cases, not civil cases. Calloway v. Bovis Lend Lease, Inc., 2013 IL App (1st) 112746, ¶ 100. Nonetheless, because we find that remand is appropriate in this case, plaintiffs may raise this issue before the circuit court on remand.

No. 1-20-0852

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¶ 59 Plaintiffs assert that the Wilneff Defendants fraudulently concealed plaintiffs’ cause of

action, and thereby tolled the statute of repose because Wilneff, as trustee, had an affirmative duty

to inform the beneficiaries, other than Cade Smith, about the trusts and their status as beneficiaries,

but failed to do so. Plaintiffs contend that as trustee, Wilneff owed a fiduciary duty to plaintiffs

and his failure to affirmatively inform the beneficiaries about their rights under the trusts amounted

to fraudulent concealment.

¶ 60 In rejecting plaintiffs’ contentions and granting the Wilneff Defendants’ motion for

summary judgment, the circuit court found that the statute of repose was not tolled because the

initial beneficiaries, including Burch, had been put on “inquiry notice” of the Wilneff Defendants’

fraudulent concealment prior to the expiration of the statute of repose. The court found that

plaintiffs should have discovered the fraud before the expiration of the statute of repose through

the exercise of ordinary diligence. The court noted that Burch and the other initial beneficiaries

received documentation identifying them as “trust beneficiaries” in the 1980s and 1990s. The court

found that although they may have been confused about that designation, such confusion did not

represent fraudulent concealment of their rights. The court found that plaintiffs failed to exercise

ordinary diligence by requesting further information about the trusts.

¶ 61 The court then discussed Greenock v. Rush Presbyterian St. Luke’s Medical Center, 65 Ill.

App. 3d 266 (1978) (abrogated by Moon v. Rhode, 2016 IL 119575, ¶ 32). The court found that

like the plaintiffs in that case, the plaintiffs here did not exercise ordinary diligence because there

was no indication that the plaintiffs ever requested more information about the trusts and that such

request was refused. The court therefore found that there was evidence showing that there was

information available to the plaintiffs, that the plaintiffs had sufficient notice to request more

information, that the plaintiffs failed to exercise ordinary diligence and request more information,

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and that there were no affirmative acts by the Wilneff Defendants that fraudulently concealed their

conduct. The court therefore found that the statute of repose barred plaintiffs’ claims against the

Wilneff Defendants.

¶ 62 We find the circuit court erred in granting summary judgment in favor of the Wilneff

Defendants because the record reveals disputed issues of material fact as to whether the Wilneff

Defendants fraudulently concealed the cause of action to toll the statute of repose. The circuit court

granted summary judgment on the basis that plaintiffs were put on “inquiry notice” of their cause

of action and failed to exercise ordinary diligence within the statutory period to toll the statute of

repose. We recognize that “where a plaintiff has been put on inquiry as to a defendant’s fraudulent

concealment within a reasonable time before the ending of the statute of repose, such that he should

have discovered the fraud through ordinary diligence, he cannot later use fraudulent concealment

as a shield in the event that he does not file suit within the statutory period.” Mauer v. Rubin, 401

Ill. App. 3d 630, 549 (2010). However, we find the circuit court’s reasoning for granting summary

judgment on this basis flawed for two reasons. First, although the evidence suggests that some of

the beneficiaries were aware of the existence of the trusts, there is no suggestion that the

beneficiaries or any of the plaintiffs were aware of any fraudulent concealment of their rights under

the trusts. Second, because of the fiduciary relationship between Wilneff as trustee and the

plaintiffs as beneficiaries, Wilneff was required to disclose material facts to plaintiffs even in the

absence of plaintiffs’ exercise of ordinary diligence.

¶ 63 Here, there are genuine issues of material fact as to what plaintiffs knew with regard to the

trusts, and whether Wilneff knew that plaintiffs were aware of their rights. Crucially for the circuit

court’s finding that plaintiffs were on inquiry notice, there is no suggestion in the record that the

No. 1-20-0852

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plaintiffs were aware that any rights they had under the trusts were being violated and that the

Wilneff Defendants were fraudulently concealing those rights.

¶ 64 The Wilneff Defendants assert the record demonstrates that the beneficiaries were aware

of the trusts because the initial beneficiaries executed documents related to the trusts on four

separate occasions. The Wilneff Defendants also point out that some of the beneficiaries and

plaintiffs actually borrowed money from the trusts. The Wilneff Defendants attached to their

pleadings a series of letters from Rootberg to members of the Ely family regarding the trusts. For

instance, in 1985, Rootberg began sending money to Bruce from the MSE trust to reimburse him

for expenses he incurred in the care of his sibling, Christopher Ely. In the letters, Rootberg

explained that the distribution was made under Cade Smith’s power of appointment for the MSE

Trust (Bruce not being an initial beneficiary and Jean still being alive at the time). Rootberg signed

the letters as “Trustee of the MSE Trust” and said that Bruce could contact him if he had any

questions. Rootberg continued sending money to Bruce for several months with similar letters.

Later, in 1988, Rootberg sent a letter to Jean. The letter began, “[p]er our telephone conversation

today, enclosed is a check for $700.00 from the MSE Trust which is being advanced to you as a

loan based on your request.” Rootberg continued sending letters and checks to Jean for more than

two years. Finally, in 1992, Rootberg sent a letter to Karen Andersen stating that “[a]t the request

of your grandmother,” she would receive a loan of $12,000 from the MSA Trust. The letter

included a note and instructions for how to repay the loan. The Wilneff Defendants assert that

these correspondences and loans demonstrate that plaintiffs were aware of the trusts, but failed to

exercise ordinary diligence to discover their rights to toll the statute of repose.

¶ 65 However, plaintiffs’ awareness of the existence of the trusts, may not have placed them on

inquiry notice about the alleged misconduct here. Merely showing that the beneficiaries may have

No. 1-20-0852

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been aware of the trusts, does not necessarily establish that they were also then aware of their rights

under the trusts or that they were aware of any fraudulent concealment on the part of the

defendants. Notably, the amounts disbursed to Jean, Karen, and Bruce were stylized as loans,

which were repaid, not distributions. Furthermore, in the letters, Rootberg explicitly stated that the

loans were being disbursed under Cade Smith’s power of appointment or “[a]t the request of your

grandmother.” These circumstances could have led plaintiffs to believe that they were not entitled

to distributions from the trusts, but were simply being granted loans from Cade Smith through

trusts that were intended to benefit only Cade Smith. Such a conclusion would be reasonable,

especially considering the misstatement on the 1996 trust documents that were sent to the

beneficiaries in connection with Marks’ resignation as co-trustee. These documents identified

Cade Smith as the “current Trust Beneficiary” or “current income beneficiary,” while the other

initial beneficiaries were identified merely as “Trust Beneficiary.” This misstatement could have

led the initial beneficiaries to believe that only Cade Smith was currently entitled to disbursements

from the trusts. Although the designations were changed in the 2001 documents to identify each

of the initial beneficiaries, including Cade Smith, as “Trust Beneficiary,” the error from the 1996

documents was never addressed, nor corrected.

¶ 66 The Wilneff Defendants assert, however, that Wilneff was not required to provide plaintiffs

with information about the trusts, and point out that the trust documents themselves provided that

“[u]pon written request of a beneficiary of a separate trust, the Trustee shall render annual

statements of the receipts and disbursements and of the financial conditions of such trust to such

beneficiary.” The Wilneff Defendants maintain that none of the plaintiffs ever made such a request.

¶ 67 However, none of the plaintiffs or initial beneficiaries other than Cade Smith seem to have

ever been provided with the trust documents. Without knowing what the trust documents provided,

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it would be impossible for the plaintiffs to know that they bore the onus for requesting such

information. Indeed, without the trust documents it would not be possible for the plaintiffs to know

there were any allegedly improper distributions being made. In fact, our current trust law requires

a trustee to inform each beneficiary of (1) the trust’s existence; (2) the beneficiary’s right to request

a complete copy of the trust instrument; and (3) whether the beneficiary has a right to receive or

request trust accountings. 760 ILCS 3/813.1(a) (West 2020). The question then becomes whether

Wilneff was aware that the other initial beneficiaries were ignorant of their rights under the trusts.

If he was aware, then it was incumbent upon him, as a fiduciary, to provide them with material

facts related to their rights. DeLuna, 223 Ill. 2d at 77.

¶ 68 We recognize that it is well-settled that a fiduciary relationship exists between trustee and

beneficiary as a matter of law. Janowiak v. Tiesi, 402 Ill. App. 3d 997, 1006 (2010) (citing

McCormick v. McCormick, 118 Ill. App. 3d 455, 466 (1983)). We also observe that “a fiduciary

who is silent, and thus fails to fulfill his duty to disclose material facts concerning the existence of

a cause of action, has fraudulently concealed that action, even without affirmative acts or

representations.” (Emphasis in original.) DeLuna, 223 Ill. 2d at 77.

¶ 69 Here, the record is devoid of any suggestion that Wilneff ever contacted any of the plaintiffs

about anything related to the trusts until after Cade Smith’s death. Significantly, Wilneff did not

contact the plaintiffs in 2009 when the final trusts’ assets had been disbursed. Instead, Wilneff

waited until May 2014, after Cade Smith died, to send the plaintiffs the “Receipt, Consent and

Release” documents. This failure to contact the initial beneficiaries after all of the trusts’ assets

had been distributed to a single beneficiary could be construed as an attempt to fraudulently

conceal plaintiffs’ cause of action.

No. 1-20-0852

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¶ 70 We find DeLuna, 223 Ill. 2d 49 instructive. In DeLuna, the defendant attorney misled his

clients by telling them that their lawsuit was “going well,” despite the fact that the suit had already

been dismissed. Id. at 79-81. Relying on their attorney’s assurances, the plaintiffs did not

investigate further and failed to discover their malpractice claim within the statute of repose. Id.

The plaintiffs in DeLuna alleged that they could not speak English and that they relied in good

faith on the attorney’s representations. Id. at 80-81. Thus, in DeLuna, because of the plaintiffs’

inability to speak, and possibly read, English, the plaintiffs were entirely reliant on the

representations of their Spanish-speaking attorney. Id. at 81-82 The supreme court found that,

under these circumstances, the plaintiffs had no duty to conduct their own investigation and had

no reason to believe such an investigation was necessary. Id. at 81-82.

¶ 71 In this case, like the clients in DeLuna, the plaintiffs had no duty to conduct their own

investigation or reason to believe such investigation was necessary because they had no reason to

believe that they had any rights to distributions from the trusts or to request accountings from the

trusts. Instead, they were entirely reliant on the trustees, including Wilneff, to abide by their

fiduciary duties and provide them with information, such as the trust documents, which would

have revealed to them their rights under the trusts.

¶ 72 Another point of contention arises in June 2014 when Peter and Bruce contacted Wilneff

following Cade Smith’s death. According to plaintiffs, at that time, Wilneff denied the existence

of Cade Smith’s will, denied the existence and availability of trust documents and tax returns, and

denied access to information about Cade Smith’s personal finances. In response to Peter and

Bruce’s request for trust documentation, Wilneff responded that he did not retain files that old. At

his deposition, Wilneff testified that he told Peter and Bruce that he “knew about the trusts” and

“had been trustee,” but did not offer any further information. The record shows that Wilneff did

No. 1-20-0852

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not send trust documents to Peter and Bruce until February 2015. The delay may be critical

because, as noted, the statute of repose for accounting claims is five years. The trusts were depleted

at some time in 2009. The circuit court found that Wilneff’s last actionable conduct therefore

occurred in 2009. Peter and Bruce contacted Wilneff in June 2014. If the trusts were depleted after

June 2009, the five-year statute of repose would not have expired before Peter and Bruce contacted

Wilneff. Thus, Wilneff’s alleged evasiveness in June 2014 could be regarded as an attempt to

obscure plaintiffs’ cause of action until after the limitations period had run. The ambiguity present

here demonstrates that the circuit court erred in granting summary judgment at this juncture. We

do not mean to suggest that plaintiffs have adequately demonstrated that the Wilneff Defendants

fraudulently concealed their cause of action such that the statute of repose should be tolled. We

find, however, that the court erred in granting summary judgment where there are disputed issues

of material fact. We therefore find that remand for further proceedings is warranted.

¶ 73 C. Pivar Defendants’ Fraudulent Concealment

¶ 74 For similar reasons, we find that the circuit court erred in granting summary judgment in

favor of the Pivar Defendants finding that they did not fraudulently conceal the cause of action

such that the statute of repose was not tolled. The record shows that Pivar knew that the initial

beneficiaries other than Cade Smith were not aware of the trusts’ activities and took steps to shield

herself, Wilneff, and Cade Smith from liability if the other beneficiaries ever learned about the

trusts’ activities.

¶ 75 Similar to section 13-214.2 of the Code discussed above, section 13-214.3 provides that an

action “for damages based on tort, contract, or otherwise [] against an attorney arising out of an

act or omission in the performance of professional services” may not “be commenced in any event

more than 6 years after the date on which the act or omission occurred.” 735 ILCS 5/13-214.3(b)-

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(c) (West 2014). Before the circuit court, the Pivar Defendants asserted that the statute of repose

barred plaintiffs’ claims because the complained-of conduct occurred in 2001, and therefore the

statute of repose expired in 2007. Plaintiffs, as they did with the Wilneff Defendants, contended

that the statute of repose should be tolled because of the Pivar Defendants’ fraudulent concealment.

¶ 76 In rejecting plaintiffs’ argument, the circuit court again observed that there was evidence

showing that the initial beneficiaries were aware of the trusts. The court noted that despite being

contacted by Pivar in 2001, none of the beneficiaries contacted Pivar or requested further

information. The court observed that although Pivar had made some misstatements of fact, such

as indicating in 2001 that Marks was still co-trustee despite the fact that he had retired in 1996,

plaintiffs failed to show any of these acts represented affirmative action designed to prevent the

discovery of the cause of action.

¶ 77 Although the court is correct that there is evidence in the record to suggest that the plaintiffs

knew about trusts, as discussed above, that same evidence does not establish that plaintiffs knew

about their rights under the trusts or knew about defendants’ alleged fraudulent concealment. The

record shows that Pivar knew that the trust beneficiaries other than Cade Smith had never received

accountings and were not aware of the trusts’ activities. Pivar acknowledged as much, but stated

that her only concern in this regard was that because the other beneficiaries had no knowledge of

the trusts’ activities, they may have been unwilling to sign releases for the former trustees,

releasing them from liability. Pivar never suggested that the beneficiaries should be informed about

the trusts, or made efforts to do so herself. Pivar testified at her deposition that she did not view it

as her responsibility to inform the beneficiaries of their rights or to advise Wilneff to do so. She

testified that she did not advise Wilneff to inform the beneficiaries about the trusts because she

No. 1-20-0852

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believed that “they”6 would have thought that she was trying to create “legal work.” It is unclear

what this legal work would have entailed.

¶ 78 Nonetheless, she was concerned about the distributions being made to Cade Smith because

she feared that Rogers was taking advantage of Cade Smith and had “control” over Cade Smith.

As such, she drafted promissory notes for Cade Smith that were intended to repay the trusts for the

distributions Cade Smith received. However, the promissory notes were not payable until Cade

Smith’s death. Pivar knew that Cade Smith was the only beneficiary receiving distributions from

the trusts and likely knew that if her estate could not repay the promissory notes, there would be

no money left in any of the trusts for any of the other beneficiaries. Pivar’s primary concern with

regard to the promissory notes appeared to be to keep the money away from Rogers, rather than

put the money back into the trusts for the benefit of the other beneficiaries. Pivar also updated

Cade Smith’s will to include a “No Challenge Provision.” The effect of this provision essentially

prevented any of the other beneficiaries from contesting the administration of the trusts. The

inclusion of such a provision would seem to suggest that Pivar was aware that there were problems

with the administration of the trusts by the trustees, but she sought to protect the trustees from

liability, rather than help correct those issues.

¶ 79 As discussed with regard to the Wilneff Defendants, given the beneficiaries’ lack of

information about the trusts and trust documents, Pivar’s conduct at the very least raises a question

of fact as to whether her actions were intended to prevent plaintiffs from discovering their cause

of action within the limitations period. Accordingly, we find that the circuit court erred in granting

summary judgment and we remand for further proceedings.

6It is unclear from Pivar’s testimony at the deposition whether “they” refers to the beneficiaries or

the Wilneff Defendants.

No. 1-20-0852

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¶ 80 D. Conspiracy

¶ 81 Finally, we address plaintiffs’ contention that the circuit court erred in dismissing their

claim for conspiracy as duplicative. Plaintiffs assert that they should have been given an

opportunity to raise this argument in the alternative and that it should not have been dismissed at

the pleading stage. Plaintiffs also assert that civil conspiracy is a distinct cause of action and that

evidence that was introduced after the claim was dismissed showed that the claim had merit.

¶ 82 “Civil conspiracy consists of a combination of two or more persons for the purpose of

accomplishing by some concerted action either an unlawful purpose or a lawful purpose by

unlawful means.” Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 62 (1994). “The function of a

conspiracy claim is to extend liability in tort beyond the active wrongdoer to those who have

merely planned, assisted or encouraged the wrongdoer’s acts.” Id.

¶ 83 Here, plaintiffs’ conspiracy count was directed at both the Pivar Defendants and the

Wilneff Defendants. Plaintiffs alleged that, in reliance on the 2001 letter sent by Rootberg’s

attorney Brown, Pivar drafted Cade Smith a new will and drafted promissory notes as part of a

scheme to shield Wilneff and herself from liability. Plaintiffs further contended that Wilneff and

Pivar failed to inform the beneficiaries about the trusts’ activities and concealed the new will and

promissory notes. The court found that this count was duplicative of plaintiffs’ claims for breach

of fiduciary duty, fraud, and legal malpractice. We disagree.

¶ 84 We recognize that “[w]hile pleading in the alternative is generally permitted [citation],

duplicate claims are not permitted in the same complaint.” Neade v. Portes, 193 Ill. 2d 433, 445

(2000). We also observe, however, that Illinois recognizes civil conspiracy as a distinct cause of

action. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 486 (1998). Critical to a claim for

conspiracy is an agreement to commit a wrongful act. Adcock, 164 Ill. 2d at 62. The agreement

No. 1-20-0852

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element necessary for a conspiracy claim is absent from plaintiffs’ other claims for negligence,

fraud, breach of fiduciary duty, and legal malpractice. Thus, “[a]lthough the allegations in the

conspiracy count *** mirror allegations made elsewhere in the complaint, the elements of the

cause of action are distinct, and are not subsumed under another theory of recovery pleaded by the

plaintiff[s].” Dowd & Dowd, 181 Ill. 2d at 486. Accordingly, we find that “dismissal of the

conspiracy count as duplicative of other theories of recovery alleged in the complaint is, at this

point in the proceedings, premature.” Id. Again, we express no opinion on the ultimate merit of

plaintiffs’ conspiracy claim. We simply hold that the circuit court should have permitted the

plaintiffs to pursue conspiracy as an alternate theory of liability.

¶ 85 III. CONCLUSION

¶ 86 For the reasons stated, we reverse the judgment of the circuit court of Cook County and

remand for further proceedings.

¶ 87 Reversed and remanded.