White v. Richert
Filing
500
MEMORANDUM Opinion and Order: For the reasons set forth in the accompanying Memorandum Opinion and Order, the parties' post-trial motions [ 463 , 477 , 479 , 483 , 484 , 496 ] are denied. Signed by the Honorable Heather K. McShain on 10/26/2021. Mailed notice. (pk, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KATHLEEN WHITE MURPHY,
CO-ADMINISTRATOR OF THE ESTATE OF
ANNA M. WHITE, ET AL.,
Plaintiffs,
v.
No. 15 CV 8185
Magistrate Judge McShain
ELIZABETH K. RICHERT,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court are defendant Elizabeth Richert’s motion for an order
dissolving lis pendens without a hearing [463]1; defendant’s motion for judgment on
Count I [477]; defendant’s motion to vacate [479]; defendant’s motion for a new trial
under Fed. R. Civ. P. 59(a)(1)(B) [484]; defendant’s motion to disqualify judge [496];
and plaintiffs Kathleen White Murphy and Thomas White’s motion to alter judgment
under Fed. R. Civ. P. 59(a) and (e) [483]. For the reasons that follow, the Court denies
each motion.
I.
Defendant’s Motion To Disqualify Judge
The Court turns first to defendant’s motion under 28 U.S.C. § 455(a) to
disqualify the undersigned from all further proceedings in this case. [496].
Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings.
1
Defendant contends that “[i]t was not until the Court’s May 27, 2021
Memorandum Opinion and Order” that the Court’s “bias toward defendant became
readily apparent[.]” [Id.] 1. Defendant adds that the Court’s “post-judgment actions
and inactions”–which include “forcing Defendant to far exceed the limitations of her
disabilities, requiring Defendant to ask for and receive additional time within which
to file both her motion for attorneys’ fees and costs, and one additional motion”–
“further evince[ ]” this bias. [Id.]. Finally, defendant asserts that the Court’s “ongoing,
improper, prejudicial treatment of Defendant in favor of Plaintiffs and their
attorneys” violated defendant’s constitutional rights and amounted to a “fraud on the
court by the Court.” [Id.] 2.
A judge must disqualify herself “in any proceeding in which [her] impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). The purpose of this statute “is
to preserve the appearance of impartiality.” Weddington v. Zatecky, 721 F.3d 456, 461
(7th Cir. 2013). A movant must therefore show that “an objective, disinterested
observer fully informed of the reasons for seeking recusal would entertain a
significant doubt that justice would be done in the case.” United States v. Barr, 960
F.3d 906, 919 (7th Cir. 2020).
A judge must also disqualify herself if she has “a personal bias or prejudice
concerning a party[.]” 28 U.S.C. § 455(b)(1). Importantly for the present case, “bias
cannot be inferred from a mere pattern of rulings by a judicial officer, but requires
evidence that the officer had it in for the party for reasons unrelated to the officer’s
view of the law.” Keith v. Barnhart, 473 F.3d 782, 789 (7th Cir. 2009); see also Trask
2
v. Rodriguez, 854 F.3d 941, 944 (7th Cir. 2017) (“adverse rulings are not evidence of
judicial bias”). “Bias must be proven by compelling evidence, and it must be grounded
in some form of personal animus that the judge harbors against the litigant.” Barr,
960 F.3d at 920.
Defendant’s motion does not present any grounds that would warrant my
recusal under either § 455(a) or § 455(b). Rather, defendant’s motion is based almost
entirely on the Court’s rulings in this case.2 For example, at pages 2 through 4 of her
motion, defendant renews her challenge to the Court’s 2018 summary-judgment
decision and the Court’s 2017 decision permitting plaintiffs to amend their complaint.
See [496] 2-4. At pages 7 through 9 of the motion, defendant argues that plaintiffs’
claim for breach of fiduciary duty should have been dismissed because it is
implausible under Rule 12(b)(6) and was not pleaded with particularity under Rule
9(b). See [id.] 7-9. Then, at page 6 and pages 12 through 13, defendant accuses
plaintiffs and their lawyers of misconduct related to bringing the suit in 2015 and
alleged tampering with evidence. See [id.] 6, 12-13. Finally, at page 13, defendant
contends that the Court “stepp[ed] out of the shoes of the Court, and into the shoes of
a witness for Plaintiffs” when it (1) found, in its Memorandum Opinion and Order
entering judgment for plaintiffs, that the opinions offered by the parties’ handwriting
experts effectively canceled each other out, and (2) observed that the initials
The Court observes that many of the rulings on which defendant bases her disqualification
motion were issued by a different judge, Magistrate Judge Schenkier, who presided over this
case with the parties’ consent before his retirement and the case’s subsequent reassignment
to the undersigned.
2
3
purporting to be those of Robert Richert on the forged trust document were noticeably
different than Robert Richert’s known initials. [Id.] 13.3
Because the Court’s “adverse rulings are not evidence of judicial bias,” Trask,
854 F.3d at 944, an objective, disinterested observer fully informed of defendant’s
reasons for seeking recusal would not entertain significant doubt that justice would
be done in this case. See Barr, 960 F.3d at 919.
That defendant’s motion is driven by her dissatisfaction with the Court’s
rulings, as opposed to a legitimate concern over the Court’s partiality, is further
confirmed by Exhibit R to the motion. See [496-18]. This exhibit is a 46-page catalogue
of supposed errors in the Court’s “biased, prejudicial and defamatory May 27, 2021
Memorandum Opinion and Order.” The issues that defendant raises in Exhibit R
include (1) the Court’s finding that defendant forged Version C of the Robert Trust,
see [496-18] 1-5; (2) plaintiffs’ alleged introduction of perjured testimony, see [id.] 78; (3) the Court’s interpretation of the distributive language in the Robert Trust, see
[id.] 17-19; (4) the Court’s calculation of the damages to which plaintiffs are entitled,
see [id.] 25-26; (5) the Court’s finding that the Receipt and Release was unenforceable,
see [id.] 33-37; and (6) the Court’s finding that plaintiffs were entitled to punitive
damages under Arizona law, see [id.] 40. While this is not an exhaustive list of the
issues and errors raised by defendant’s Exhibit R, it suffices to show that defendant’s
Because this case proceeded to a bench trial, it was the Court’s duty to weigh the
handwriting evidence introduced by each side and draw reasonable conclusions from the
evidence presented to it. See Fed. R. Civ. P. 52(a)(1); see also Turley v. Lawrence, Case No.
3:08-CV-7-GCS, 2019 WL 2869832, at *3 (S.D. Ill. Jul. 3, 2019) (“as the trier of fact, Judge
Williams was also permitted to consider, reject and weigh the evidence received at trial”).
3
4
allegations of bias are based almost entirely on the Court’s prior rulings, which are
an insufficient basis for recusal. See Barr, 960 F.3d at 920; Trask, 854 F.3d at 944;
Keith, 473 F.3d at 789.
Defendant also contends that the Court’s post-trial and post-judgment
scheduling orders, which set briefing schedules for defendant’s motion to dissolve a
lis pendens respecting the Buffalo Grove property and for defendant’s motion for
attorney’s fees and costs, are evidence of bias. See [496] 1; [496-18] 39-40.
As defendant observes, the motion to dissolve the lis pendens was filed on May
24, 2021. [463]. Because the Court was then in the process of finalizing its
Memorandum Opinion and Order, the Court set a short response date for plaintiffs’
response to the motion. [464]. After reviewing the briefs, the Court determined that
the pleadings did not permit the Court to make an informed ruling on the motion–
particularly because the parties were unaware of the findings of fact and conclusions
of law set forth in the Court’s Memorandum Opinion and Order, which in the Court’s
view could affect the lis pendens issue. Accordingly, after entering judgment on May
27, 2021, the Court set a new briefing schedule that directed plaintiffs to address two
issues that the Court determined were relevant to defendant’s motion, and gave
defendant an opportunity to reply to their response. See [469]. This kind of mundane
briefing order, directing the parties to address specific issues so that the Court could
make an informed ruling on a pending motion, would not cause a reasonable observer
to question the undersigned’s impartiality. See Liteky v. United States, 510 U.S. 540,
5
556 (1994) (“A judge’s ordinary efforts at courtroom administration . . . remain
immune” and do not establish bias).
Nor does the Court’s effort to set a reasonable briefing schedule on defendant’s
motion for attorney’s fees and costs support the disqualification motion. On June 9,
2021, defendant moved the Court for leave to file the motion within “a reasonable
time subsequent to” a doctor’s appointment that was scheduled for July 22, 2021.
[474] 4. The Court granted the request and set August 2, 2021 as the deadline for
defendant’s motion. [476]. At defendant’s request, this deadline was later extended
to September 27, 2021, based on a doctor’s note stating that defendant’s condition
had substantially deteriorated in recent months. See [495]. The Court’s effort to set a
briefing schedule that balanced the Court’s desire to resolve the issue in a reasonably
prompt fashion while also accounting for defendant’s limitations is not something a
reasonable observer would see as evidence of the Court’s bias against defendant.
For all these reasons, defendant’s motion to disqualify judge [496] is denied.
II.
Defendant’s Motion For A New Trial
The Court next turns to defendant’s motion for a new trial, which was filed
under Civil Rule 59(a)(1)(B). [484].
Rule 59(a)(1)(B) provides that, “after a nonjury trial,” the Court may grant a
new trial “for any reason for which a rehearing has heretofore been granted in a suit
in equity in federal court.” Fed. R. Civ. P. 59(a)(1)(B). “‘A motion for a new trial in a
nonjury case . . . should be based upon manifest error of law or mistake of fact, and a
judgment should not be set aside except for substantial reasons.’” Quality Leasing
6
Co., Inc. v. Int’l Metals LLC, Case No. 1:18-cv-1969-TWP-MG, 2021 WL 4193546, at
*2 (S.D. Ind. Sept. 15, 2021) (quoting 11 Charles Alan Wright et al., Federal Practice
& Procedure § 2804). “A manifest error is not demonstrated by the disappointment of
the losing party; instead, it is the wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th
Cir. 2000) (internal quotation marks omitted).
Most of defendant’s motion is devoted to the related arguments that this case
should have been litigated in Arizona state court, rather than a federal district court
in Illinois, and that plaintiffs made false representations to the Court throughout the
litigation to dissuade the Court from reaching that conclusion. See [484] 3-5. More
specifically, defendant argues that (1) the Arizona circuit courts have exclusive
jurisdiction over proceedings brought by a beneficiary or trustee concerning the
administration of an Arizona trust, and (2) by accepting a distribution from the
Robert Trust, Anna White submitted to the exclusive personal jurisdiction of the
Arizona state courts. [Id.] 6-8.
These arguments provide no basis for granting a new trial. Most importantly,
the Court has repeatedly considered and rejected defendant’s arguments that venue
in the Northern District of Illinois was improper, that the case should have been
transferred to an Arizona state court because the Arizona courts have exclusive
jurisdiction over plaintiffs’ claims, and that plaintiffs have hoodwinked the Court into
accepting that it has jurisdiction to adjudicate this dispute. See White v. Richert, Case
No. 15 CV 8185, 2016 WL 2582083, at *5-6 (N.D. Ill. June 28, 2016) (denying
7
defendant’s motion under Fed. R. Civ. P. 12(b)(3) to dismiss for improper venue and/or
transfer venue); see also [311] 17-18 (rejecting arguments that Arizona courts had
exclusive subject-matter jurisdiction over plaintiffs’ breach-of-fiduciary-duty claim
and exclusive personal jurisdiction over Anna White in her capacity as beneficiary of
Robert Trust). Defendant’s motion does not engage with the Court’s prior rulings, let
alone show that the Court’s decisions were manifestly erroneous.
Defendant also argues that Anna White was not competent to sue, and that
plaintiffs–her children and the co-administrators of her estate–wrongfully concealed
this fact from her and the Court. See [484] 2 & n.1. The Court addressed this issue in
its Memorandum Opinion and Order entering judgment for plaintiffs, see [467] 32-38;
Murphy v. Richert, No. 15 CV 8185, 2021 WL 2156448, at *15-17 (N.D. Ill. May 27,
2021), but defendant again fails to address that ruling or demonstrate that it was
manifestly erroneous. Defendant’s rehashing of this argument is not a basis for a new
trial. See O’Donnell v. Caine Weiner Co., LLC, No. 14 C 3869, 2018 WL 10798046, at
*1 (N.D. Ill. Mar. 23, 2018) (“A motion for new trial is not properly used to relitigate
issues previously presented, but to raise issues that could not have been raised
earlier.”) (internal quotation marks and citation omitted).
For these reasons, defendant’s motion for a new trial and to transfer case to
the Maricopa County, Arizona Superior Court [484] is denied.
III.
Defendant’s Motion To Enter Judgment
In her next motion, defendant asks the Court to enter judgment in her favor
and against plaintiffs on Count I of plaintiff’s amended complaint. [477].
8
Count I sought an order requiring defendant to transfer title to Anna White’s
residence in Buffalo Grove, Illinois from defendant, in her capacity as trustee of the
Robert Trust, to Anna White; an accounting of the Robert Trust; and an order
dissolving the Receipt and Release. See [1-1] 3-4 (original state court petition removed
to this Court by defendant); see also [173] 1 (first amended complaint incorporating
claim in state court petition by reference). In August 2018, the Court granted
summary judgment to defendant on this claim, holding that there was no genuine
dispute that the claim was untimely. See White v. Richert, Case No. 15 CV 8185, 2018
WL 4101512, at *5-6 (N.D. Ill. Aug. 28, 2018). The Court also denied defendant’s
motion for summary judgment as to Count II of the amended complaint, which was
the breach-of-fiduciary-duty claim that was decided at the bench trial. Id. at *6-8.
Citing the Court’s grant of summary judgment in her favor on Count I, defendant
contends that she is entitled to “an Order of Judgment against Plaintiffs and in favor
of Defendant for Count I of Plaintiffs’ First Amended Complaint, including
compensatory damages pursuant to Doc. # 196, and ¶ 3, supra, costs, pre-judgment
interest and post-judgment interest thereon.” [477] 3.4
The Court rejects this argument and will deny the motion to enter judgment.
First, to the extent that defendant challenges the Court’s failure to enter a
separate judgment respecting Count I of the amended complaint, there was then–and
still is now–no basis for the Court to do so. The Court’s August 2018 decision was an
The Court notes that “Doc. # 196” refers to defendant’s answer to plaintiffs’ first amended
complaint [196], and “¶ 3, supra” refers to paragraph 3 of the motion to enter judgment, where
defendant recites the answer’s prayer for relief. See [196] 6.
4
9
interlocutory order that disposed of only one of plaintiffs’ claims, leaving the other
claim–as well as two of defendant’s counterclaims (one of which was later voluntarily
dismissed)–for trial. See Ferguson v. McDonough, 13 F.4th 574, 579 (7th Cir. 2021)
(“A district court order denying summary judgment is ordinarily unappealable since
it is not a final decision under § 1291 but rather an interlocutory ruling.”); Brown v.
Chybowski, Case No. 14-cv-1066-pp, 2016 WL 7432508, at *1 (E.D. Wis. Dec. 23, 2016)
(“An ‘interlocutory’ order is one that decides only one issue in the case, rather than
resolving the entire case. This court’s partial denial of summary judgment didn’t
decide the entire case, so it was an ‘interlocutory’ order.”). Furthermore, now that the
Court has decided the remaining claims and entered judgment, there is no need to
enter a separate judgment respecting the grant of summary judgment to defendant
on Count I because that ruling is encompassed within the Court’s final judgment. See
Sere v. Bd. of Trs. of Univ. of Illinois, 852 F.2d 285, 288 (7th Cir. 1988) (“Rulings on
interlocutory orders are encompassed within a subsequent final judgment and may
be reviewed as part of that judgment.”).
Second, to the extent that defendant contends she is entitled to affirmative
relief respecting Count I of the amended complaint–in the form of damages, title to
the Buffalo Grove property, or some other relief–her contention is based on a
misunderstanding of the Court’s prior ruling. In granting defendant’s summaryjudgment motion, the Court decided only that the claim was untimely; it did not
decide who should have title to the Buffalo Grove home, whether an accounting of the
Robert Trust should occur, or whether the Receipt and Release should be invalidated.
10
Furthermore, while defendant filed a counterclaim seeking affirmative relief relating
to the Buffalo Grove property, the Court dismissed all but two of her claims as
implausible, see White v. Richert, Case No. 15 CV 8185, 2016 WL 6139929, at *4-9
(N.D. Ill. Oct. 21, 2016), defendant then voluntarily dismissed one of those claims,
and the Court found at trial that defendant failed to carry her burden of proof on her
remaining claim.
For these reasons, defendant’s motion for entry of judgment [477] is denied.
IV.
Defendant’s Motion To Vacate
Defendant has also moved to vacate the Court’s minute orders setting and
modifying the briefing schedule on defendant’s motion to dissolve the lis pendens.
[479]. Defendant argues that the Court should have ruled on her motion to dissolve
the lis pendens before it issued its Memorandum Opinion and Order, and that the
Court “improperly granted Plaintiffs a second bite at the apple” by ordering plaintiffs
to file an amended response to the motion that addressed certain findings of fact and
conclusions of law set forth in the Court’s decision. [479] 7. Defendant asks that the
Court strike plaintiffs’ original and supplemental responses and grant her motion to
dissolve the lis pendens. [Id.] 11.
This motion is denied. Contrary to defendant’s argument, the mere fact that
she filed a motion to dissolve the lis pendens–a motion that, as discussed in more
detail below, failed to cite any authority in support of her request–did not entitle her
to an order granting the motion. Rather, plaintiffs were entitled to a fair opportunity
to respond to defendant’s argument, and the Court had the discretion to call for a
11
supplemental brief from plaintiffs that would address the impact of the Court’s
Memorandum Opinion and Order on defendant’s request. Finally, the Court’s briefing
schedule permitted defendant to file a reply to the plaintiffs’ response, so defendant
has no basis to claim that anything the Court did prejudiced her.5
V.
Motion To Dissolve Lis Pendens
The Court now turns to defendant’s “Motion For Order Dissolving Lis Pendens
Without Hearing.” [463]. By this motion defendant seeks to dissolve the lis pendens
notice respecting the Buffalo Grove property that plaintiffs’ counsel recorded in
September 2015 with the Lake County, Illinois Recorder of Deeds. [Id.] 1-2; see also
[463-1] 1-2 (lis pendens notice). Defendant argues that the Court’s grant of summary
judgment in her favor on Count I of plaintiffs’ first amended complaint–the Count by
which plaintiffs sought to obtain title to the Buffalo Grove home–“entitles [her] to the
equitable relief sought herein, as a matter of law, and law of the case.” [463] 2.
Plaintiffs oppose the motion, arguing that “[a] lis pendens is appropriate where
‘there exists a proceeding that may affect good title to the property.’” [471] 2 (quoting
Chicago Title Ins. v. Aurora Loan Servs., LLC, 996 N.E.2d 44, 51 (Ill. App. 2013)).
Plaintiffs contend that this case “may” affect good title to the Buffalo Grove home
because they “have the right to appellate review of [the Court’s] . . . order granting
[defendant] summary judgment on Count I of their amended complaint,” and they
Defendant’s further requests that the Court strike plaintiffs’ original and supplemental
responses, hold plaintiffs and their attorneys “in contempt of the Court’s August 28, 2018
Memorandum Opinion and Order” and sanction them, order plaintiffs to file a sworn
declaration stating to whom they have disclosed “copies of any documents in this case relating
to the current trustee of the Robert Trust,” and require plaintiffs to state whether they have
removed any property from, or changed the locks on, the Buffalo Grove home are denied.
5
12
“likely will argue that [the Court’s] dismissal of Count I . . . was error and seek
reversal of the same.” [Id.] 1, 3.
For the following reasons, the Court concludes that the lis pendens is no longer
effective now that final judgment in this case has been entered.
A lis pendens is a written notice stating that a lawsuit “affecting or involving”
certain real estate has been filed. See 735 ILCS 5/2-1901. “A lis pendens is not an
injunction as it does not formally restrain sale, conveyance, or purchase” of the
property at issue. First Midwest, a Div. of Jacksonville Savings Bank v. Pogge, 687
N.E.2d 1195, 1198 (Ill. App. 1997). Rather, “the filing of a lis pendens notice with the
recorder of deeds constitutes constructive notice of the lawsuit to any person who
subsequently acquires an interest in that property.” Sobilo v. Manassa, 479
F. Supp. 2d 805, 823 (N.D. Ill. 2007). “A person who acquires the property after the
recording of the lis pendens notice takes the property subject to any superior interests
that may be determined in the lawsuit.” Id.
Unfortunately, the parties’ briefs do not discuss any Illinois cases or other
authority addressing whether the lis pendens can or should remain in place now that
the Court has entered final judgment in this case. Defendant’s motion and her reply
brief, see [480] 1-5, are bereft of any authority in support of her request to dissolve
the lis pendens. And while plaintiffs rely on the Chicago Title Insurance case for the
proposition that a lis pendens may properly be recorded as long as litigation “may
affect good title to the property,” that case addresses a different issue than the one
presented here. The issue before the Illinois Appellate Court in Chicago Title
13
Insurance was whether a recorded lis pendens, which gave notice of a prior sale of the
property based on delinquent taxes, constituted an encumbrance on the property for
purposes of the plaintiff’s claim that defendant had breached a special warranty deed.
See 996 N.E.2d at 49. Because a lis pendens is only a means of providing notice that
“there exists a proceeding that may affect good title to the property,” the court held
that it was not an encumbrance. Id. at 51. Nothing in Chicago Title Insurance
addresses whether a lis pendens remains effective or should be dissolved after entry
of final judgment.
In the Court’s view, the controlling case on this issue is the Seventh Circuit’s
decision in Duncan v. Farm Credit Bank of St. Louis, 940 F.2d 1099 (7th Cir. 1991).
Plaintiffs in that case sued in Illinois state court to enforce a right-of-first-refusal to
repurchase their farmland and recorded a lis pendens. Id. at 1101. Defendant
removed the case to federal court, and the district judge dismissed the suit on the
merits. Id. Plaintiffs did not move to stay the judgment pending an appeal, and
defendant sold the property to a third party while the appeal was pending. Id.
Defendant argued that the sale of the property mooted the appeal, while plaintiffs
contended that “the case is not moot because they filed a lis pendens, providing
constructive notice of the disputed nature of the property” to the third-party
purchaser. Id.
Applying Illinois law governing “the operation and scope of the lis pendens filed
in this case,” the Seventh Circuit held that the appeal was moot. Duncan, 940 F.2d
at 1101. “In Illinois,” the court explained, “a lis pendens terminates upon a final
14
judgment or decree.” Id. (citing Town of Libertyville v. Moran, 535 N.E.2d 82 (Ill. App.
1989) and Eich v. Czervonko, 161 N.E. 864 (Ill. 1928)). Because the third party had
purchased the farmland at issue after the district court dismissed plaintiffs’ suit–at
which point the lis pendens had terminated–the Seventh Circuit concluded that the
lis pendens did not protect plaintiffs’ interest in the property during the appeal. Id.
at 1101-02. Instead, plaintiffs needed to seek, but had not sought, “a stay of judgment
pending appeal to protect its interest in the underlying property.” Id. at 1102.
The Court’s entry of final judgment in this case had the effect of terminating
the lis pendens recorded by plaintiffs’ counsel. See Duncan, 940 F.2d at 1101-02;
Moran, 535 N.E.2d at 83-84; Hardiman v. Hardiman, 2012 IL App (1st) 102384-U,
¶ 49. Because the lis pendens has terminated, the Court denies defendant’s motion to
dissolve the lis pendens as moot.
VI.
Plaintiffs’ Motion To Amend Judgment
Finally, the Court turns to plaintiffs’ motion to amend judgment. [483].
Plaintiffs ask that the judgment be amended to (1) reflect that plaintiffs are entitled
to a 62.51% interest in the Buffalo Grove home; (2) or, in the alternative, quiet title
to the Buffalo Grove home in plaintiffs’ names in their capacity as the independent
co-administrators of Anna White’s estate; (3) reinstate Count I of their first amended
complaint to conform to the trial evidence that defendant “committed ethical
violations at least as Anna White’s former attorney” within two years of the filing
date of Anna White’s original state-court petition; and (4) conform their amended
complaint to the evidence introduced at trial establishing that defendant should be
15
equitably estopped into surrendering a one-half interest in the Carefree home to
plaintiffs.
Plaintiffs’ motion invokes Rule 59(a)(2) and Rule 59(e). As noted above, relief
is available under Rule 59(a)(2) only if the movant establishes that the Court
committed a manifest error of law or fact. See Quality Leasing Co., 2021 WL 4193546,
at *2. Similarly, “[a] motion under Rule 59(e) may be granted only if there has been
a manifest error of fact or law, or if there is newly discovered evidence that was not
previously available.” Robinson v. Waterman, 1 F.4th 480, 483 (7th Cir. 2021).
Neither motion permits a party to raise an argument that could have been made
earlier or present evidence that should have been presented earlier. See Exxon
Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (Rule 59(e) motion “may not be
used to relitigate old matters, or to raise arguments or present evidence that could
have been raised prior to the entry of judgment.”); Ashraf-Hassan v. Embassy of
France, 185 F. Supp. 3d 94, 112 (D.D.C. 2016) (“The purpose of Rule 59(a)(2) is not to
introduce new evidence that was available at the time of trial but was not proffered,
to advance new theories, or to secure a rehearing on the merits.”) (internal quotation
marks omitted).
A.
Plaintiffs’ Interest in the Buffalo Grove Home
Plaintiffs first argue that the Court should award them a 62.51% interest in
the Buffalo Grove home. Plaintiffs base this request on the Court’s damages award,
where, plaintiffs contend, the Court “concluded that 47% and an intestate third of
47% of the Robert Trust belong to plaintiffs as co-administrators of their mother’s
16
estate.” [483] 1. Plaintiffs assert that the Court has authority under Rule 57 to issue
a declaratory judgment to this effect because the prayer for relief in their amended
complaint–which did not specifically request an interest in the Buffalo Grove home,
see [173] 3–asked the Court to award “whatever other relief this Court deems
appropriate.” [483] 2. Defendant opposes this request, arguing that the Court’s
August 2018 summary-judgment ruling forecloses plaintiffs from recovering any
relief respecting the Buffalo Grove home. [487] 2-3.
The Court concludes that plaintiffs’ request is not proper under either Rule
59(a)(2) or Rule 59(e).
First, plaintiffs do not contend that the Court’s failure to award them a 62.51%
interest in the Buffalo Grove home represented a manifest error of law or fact–and
for good reason. Plaintiffs did not request this form of relief in their proposed findings
of fact and conclusions of law that were filed before the bench trial began. See [328]
39-40, at ¶¶ 203-06. Nor did they request this relief in their post-trial brief. See [460]
13-14. Rather–and in spite of the Court’s ruling in August 2018 dismissing Count I
of their amended complaint, which sought an order transferring title to the Buffalo
Grove home to Anna White–plaintiffs argued that they were entitled to the Buffalo
Grove home outright. See [328] ¶¶ 199, 203; [460] 13. But as the Court explained in
its Memorandum Opinion and Order, the Court’s grant of summary judgment to
defendant on Count I foreclosed plaintiffs from obtaining title to the Buffalo Grove
home. See [467] 80; Murphy, 2021 WL 2156448, at *36 (“[T]itle to the Buffalo Grove
home was the subject of count one of plaintiffs’ first amended complaint, but the Court
17
dismissed that claim as time-barred nearly three years ago.”) (internal citation
omitted); see also [467] 80 n.25; Murphy, 2021 WL 2156448, at *36 n.25 (“the Court’s
summary-judgment ruling clearly foreclosed plaintiff[s] from obtaining title to the
Buffalo Grove home”).6
Plaintiffs contend that the issue of whether “the Buffalo Grove home is
[defendant’s]” or whether “it is an asset of the Robert Trust” was “fully tried with the
consent of [defendant], albeit premised on her idee fix that she owns the Buffalo Grove
home personally.” [483] 1. Plaintiffs notably fail to cite to the trial record to
substantiate their claim that defendant consented to litigate this issue. Moreover,
defendant repeatedly objected to plaintiffs’ questions seeking to elicit information
about title to or the ownership of the Buffalo Grove home on the ground that such
lines of questioning were relevant only to the dismissed Count I of the amended
complaint. E.g., [449] 83-84 (defendant’s objection to questions about current status
of Buffalo Grove home); [451] 24, 25-26 (defendant’s objections to questions about
Buffalo Grove home’s warranty deed and tax bills); see also [id.] 35-36 (recognizing
defendant’s standing objection to “this line of questioning with respect to anything
The Court is aware that a party’s failure to request a specific form of relief is not, standing
alone, necessarily fatal to its ability to recover that relief. Civil Rule 54 provides that, with
the exception of default judgments, every judgment “should grant the relief to which each
party is entitled, even if the party has not demanded that relief in its pleadings.” Fed. R. Civ.
P. 54(c). “Rule 54(c) is intended to make ‘clear that a judgment should give the relief to which
a party is entitled, regardless of whether it is legal or equitable or both.’” U.S. Commodity
Futures Trading Comm’n v. Reisinger, Case No. 11 CV 8567, 2019 WL 4464387, at *8 (N.D.
Ill. Sept. 18, 2019) (quoting Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d
1077, 1080 (7th Cir. 1998)). But “Rule 54(c) does not allow the district court to award relief
based on a theory that was not properly raised at trial” or “relief that would unfairly prejudice
the non-prevailing party.” Old Republic Ins. Co., 143 F.3d at 1080-81. Because plaintiffs’
request implicates at least the former concern, their request for a 62.51% interest in the
Buffalo Grove home is not authorized by Rule 54(c).
6
18
related to this house was under Count One, and Count Two has to do with the trust
document and accusation about the trust document and not with the property at 49
Willow Park”).
In any event, as the Court noted in its Memorandum Opinion and Order, there
is no dispute that title to the Buffalo Grove home remains in defendant’s name in her
capacity as trustee of the Robert Trust. [467] 16; Murphy, 2021 WL 2156448, at *7.
But whether plaintiffs were entitled to recover as damages a 62.51% interest in the
property was not an issue that was litigated–let alone litigated with defendant’s
consent–at the bench trial.
Because plaintiffs did not seek to prove at trial that they were entitled to a
62.51% stake in the Buffalo Grove home, and because plaintiffs did not request that
relief before or during trial, plaintiffs may not try to obtain it now, for the first time,
in a post-trial motion. See Exxon Shipping Co., 554 U.S. at 485 n.5; Ashraf-Hassan,
185 F. Supp. 3d at 112; see also U.S. Neurosurgical, Inc. v. City of Chicago, 02 C 4894,
2007 WL 9813352, at *1 n.1 (N.D. Ill. Sept. 19, 2007) (“A new trial in a court action
will not lie merely to relitigate old matters, nor will a new trial normally be granted
to enable the movant to present his case under a different theory than he adopted at
the former trial.”) (internal quotation marks omitted).
Second, there is no merit to plaintiffs’ argument that they are entitled to a
62.51% interest in the Buffalo Grove home based on the Court’s “conclu[sion] that
47% and an intestate third of 47% of the Robert Trust belongs to plaintiffs as coadministrators of their mother’s estate.” [483] 1. This is so because the Court drew
19
no conclusion and made no finding in its Memorandum Opinion and Order respecting
what percentage of the Robert Trust “belongs to plaintiffs[.]” Instead, as the following
passages from the Court’s decision–including the one relied on by plaintiffs–make
clear, the Court found that defendant’s breach of her fiduciary duty caused Anna
White to sustain $95,850.53 in damages, a sum equal to one-third of the forty-seven
percent of the Robert Trust’s assets that were not distributed to a named beneficiary:
•
“Thus, defendant was obligated by the terms of the Robert Trust to distribute
to Anna White . . . $95,850.83 ($611,814.45 x 0.47 x 0.33 = $95,850.83). Because
defendant failed to make this distribution, she breached her fiduciary duty to
Anna and caused Anna to suffer damages in the amount of $95,850.83.” [467]
49; Murphy, 2021 WL 2156448, at *22.
•
“[D]efendant breached her fiduciary duty to Anna White by creating Version C
of the Robert Trust and failing to distribute to Anna White her intestate share
of the forty-seven percent of the trust estate–$95,850.83–not distributed to a
named beneficiary.” [467] 73; Murphy, 2021 WL 2156448, at *32.
Besides misrepresenting the Court’s factual and legal findings, plaintiffs’
argument is also inconsistent with the Court’s ruling that plaintiffs were not entitled
to recover the forty-seven percent of the Robert Trust to which Anna White was
entitled as a named beneficiary and that defendant allegedly did not distribute to
her. As the Court explained, this relief:
is not causally connected to the breach of fiduciary duty that plaintiffs
proved in this case. Rather, defendant’s breach of fiduciary duty–
creating a fake version of the trust and using it to steal nearly half of
the Robert Trust’s assets–caused Anna White to lose only her one-third
share of the forty-seven percent of the trust estate that the Robert Trust
did not distribute to a named beneficiary. See [173] 3 (requesting entry
of judgment “disgorging the trust proceeds to which Elizabeth Richert
was not entitled”). To the extent plaintiffs sought to recover any portion
of Anna White’s forty-seven-percent share of the trust estate that
defendant failed to distribute, that relief was associated with count one
of their amended complaint, which the Court dismissed as time-barred.
20
See [1-1] 5 (prayer for relief requesting “an accounting for the Robert L.
Richert Trust”). Because the only claim that might have entitled
plaintiffs to recover the outstanding portion of Anna White’s share as a
named beneficiary of the Robert Trust was dismissed with prejudice,
plaintiffs are not entitled to the requested relief.
[467] 81; Murphy, 2021 WL 2156448, at *36-37.
As these passages (and the remainder of the Court’s Memorandum Opinion
and Order) demonstrate, the principal issue at the bench trial was whether defendant
had counterfeited a version of the Robert Trust in order to steal 47% of the trust
estate to which she was not entitled. The trial was not more generally about
determining what portion of the Robert Trust “belong[ed] to plaintiffs” or any of the
other trust beneficiaries. And while plaintiffs had sought an accounting of the Robert
Trust and an order transferring title to the Buffalo Grove home to themselves, the
Court dismissed that claim on statute-of-limitations grounds long ago. Because the
Court accordingly had no occasion to find–and in fact made no finding respecting–
what portion of the Robert Trust “belong[ed] to plaintiffs,” there is no basis in the
Court’s decision to award plaintiffs a 62.51% interest in the Buffalo Grove home.
B.
Request to Quiet Title
For similar reasons, the Court denies plaintiffs’ request to quiet title to the
Buffalo Grove home in their names as the co-administrators of Anna White’s estate.
See [483] 4-7.
Most importantly, the Court dismissed Count I of plaintiffs’ first amended
complaint–the count that sought title to the Buffalo Grove home–long before trial,
and thus the trial was not an opportunity for plaintiffs to prove a quiet-title case.
21
Nothing in plaintiffs’ proposed findings of fact and conclusions of law, moreover,
would have put defendant or the Court on notice that they were making a quiet-title
claim for the Buffalo Grove property. See [328] 39-40, ¶¶ 199-207; [id.] 41-47.
Plaintiffs contend that the final pretrial order “put the Buffalo Grove home ownership
at issue,” but nothing in the pretrial order indicates plaintiffs intended to pursue an
action to quiet title at trial. See [280]. Finally, the Court notes again that plaintiffs
do not argue that it was a manifest error not to quiet title to the Buffalo Grove
property in their names as the administrators of Anna White’s estate. See [483] 4-7.
For these reasons, plaintiffs’ request to quiet title to the Buffalo Grove home is
denied.
C.
Reinstatement of Count I
Plaintiffs next ask that the judgment be amended to reinstate Count I of their
first amended complaint. [483] 7-10. According to plaintiffs, evidence introduced at
trial established that, contrary to the Court’s ruling in August 2018, this claim was
timely. In support, plaintiffs cite to testimony that defendant allegedly breached the
fiduciary duty she owed Anna White, in her capacity as Anna’s attorney, within two
years of the filing of Anna’s original complaint. [Id.] 8-9.
The Court denies this request. On defendant’s motion, the Court granted her
summary judgment on Count I because the undisputed evidence then before the
Court established that the claim was untimely. See White, 2018 WL 4101512, at *56. Plaintiffs now seek to use evidence of the alleged attorney-client relationship
between Anna White and defendant–an issue that was not relevant to plaintiffs’
22
breach-of-fiduciary-duty claim against defendant in her capacity as trustee of the
Robert Trust–that was introduced at trial to effectively undo the Court’s prior
summary-judgment ruling. The Court finds that this would be unfairly prejudicial to
defendant.
Moreover, this case is distinguishable from the only case that plaintiffs cite in
support of their request, Wolf Point Co-op v. Raysure Ins. Brokers, Inc., No. 85 C 2004,
1988 WL 82551 (N.D. Ill. Aug. 1, 1988). In that case, the district court had granted
summary judgment to the defendants on one of plaintiff’s claims, finding that
plaintiff “failed to make the legal argument necessary to consider if defendants were
agents and also failed to clearly reference which facts were supposed to show
defendants were agents.” Id., at *1. When plaintiff moved for reconsideration of the
agency issue before the trial began, the defendants–who “could have argued that the
agency issue was waived because not adequately argued in the initial briefs”–instead
waived their waiver argument and responded on the merits. Id. The district court
granted the motion to reconsider and reinstated the previously dismissed claim.
This case is very different. Plaintiffs did not seek to reinstate Count I before
the bench trial began, nor is their motion based on arguments or evidence that was
before the Court at the time of the summary-judgment ruling. Instead, plaintiffs rely
on new evidence introduced at trial that was not relevant to their breach-of-fiduciaryduty claim and to which defendant objected. See, e.g., [449] 46. Granting plaintiffs’
request would be unfairly prejudicial to defendant, who was entitled to rely on the
23
Court’s order dismissing Count I. Accordingly, plaintiffs’ motion is denied to the
extent it seeks reinstatement of Count I.
D.
Equitable Estoppel Claim for Half the Value of the Carefree
Home
Finally, plaintiffs contend that the judgment should be amended to award
them a one-half interest in Robert Richert’s former home in Carefree, Arizona. [483]
10-11. According to plaintiffs, their trial evidence established that (1) defendant
“lulled Anna White into complacency” by falsely representing that “half of Robert’s
home . . . was going to Anna White, but that Richert was not ready to sell it because
the house needed improvements and the real estate market was severely depressed,”
and (2) Anna relied on these representations in deciding not to press defendant to
distribute to Anna her proper share of the Robert Trust. [Id.] 10. Defendant argues
that plaintiffs’ request is inconsistent with a representation plaintiffs made to the
Court in 2017, in which plaintiffs acknowledged that “the Arizona property ‘is off the
table’ because whichever version of the trust document governs, ‘the Arizona home
goes to the defendant.’” [487] 10.
“Rule 15(b)(2) provides that issues ‘tried by the parties’ express or implied
consent’ must be treated in all respects as if raised in the pleadings, and a party may
move ‘at any time, even after judgment,’ to amend the pleadings to conform to the
evidence.” Reynolds v. Tangherlini, 737 F.3d 1093, 1106 (7th Cir. 2013) (quoting Fed.
R. Civ. P. 15(b)(2). “The standard for a motion under Rule 15(b)(2) is whether the
opposing party had a fair opportunity to defend and whether he could have presented
24
additional evidence had he known sooner the substance of the amendment.” Id.
(internal quotation marks omitted).
“A court will not imply a party’s consent to try an unpleaded claim, however,
merely because evidence relevant to a properly pleaded issue incidentally tends to
establish that unpleaded claim.” Colbert v. City of Chicago, 851 F.3d 649, 656-57 (7th
Cir. 2017) (internal brackets and quotation marks omitted). “A district court is well
within its discretion to deny a motion seeking to add a new theory of liability if the
defendant has not consented to it.” Reynolds, 737 F.3d at 1106 (internal quotation
marks omitted).
Plaintiffs have not demonstrated that defendant consented to try the
equitable-estoppel claim concerning their entitlement to a one-half interest in the
Carefree home. Most importantly, defendant repeatedly objected–and even obtained
standing objections–when plaintiffs elicited testimony about the Carefree home in
general and that defendant had allegedly told plaintiffs and Gary Steciuk that Anna
White was entitled to a one-half interest in the home. See [451] 41, 43; [id.] 43
(defendant’s standing objection “regarding any line of questioning with respect to the
Carefree home . . . [b]ased on the Court’s prior ruling with regard to this property and
admission that it is not part of this litigation”); [452] 35 (objection to plaintiffs’
testimony concerning deeds associated with Carefree home); [id.] 36 (recognizing
defendant’s standing objection before Kathleen White Murphy testified that
defendant had told her Anna White would get half of Carefree home); [454] 19-20
(standing objection to Gary Steciuk’s testimony concerning Carefree property).
25
Because defendant did not consent to try this issue, leave to amend may not be
granted under Rule 15(b)(2). See Reynolds, 737 F.3d at 1106; see also Aldridge v.
Forest River, Inc., 635 F.3d 870, 875-76 (7th Cir. 2011) (affirming denial of request to
amend complaint after trial because “defendants did not consent to add this theory of
liability”); Mendez v. Dental, No. 04 C 4159, 2008 WL 1883459, at *3 (N.D. Ill. Apr.
25, 2008) (“Mendez’s motion and reply brief provide extensive arguments as to why
Mendez should prevail under the piercing the corporate veil theory. However, Mendez
fails to show that the consent requirement is satisfied in this case.”).
Furthermore, the Court observes that plaintiffs have not explained why they
did not seek to amend their complaint before trial to add a claim for equitable
estoppel. In the Court’s view, this is a significant omission because the proposed
equitable-estoppel claim was based largely on plaintiffs’ own testimony about
statements that defendant had made to each of them. See [467] 13; Murphy, 2021 WL
2156448, at *6. It was not, in other words, an unforeseeable issue that emerged
unexpectedly during the trial itself. Because plaintiffs’ request seeks to add a new
theory of liability late in the proceedings without justification, their request is denied.
See Aldridge, 635 F.3d at 876 (affirming denial of post-trial amendment because
“amendment would have added a new theory of liability to the case at the late stage
of the proceedings”).
26
Conclusion
For the foregoing reasons, the parties’ post-trial motions [463, 477, 479, 483,
484, 496] are denied. The Court will issue a decision on the parties’ motions for
attorneys’ fees in a separate order and in due course.
_____________________________________
HEATHER K. McSHAIN
United States Magistrate Judge
DATE: October 26, 2021
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