Protective Life Insurance Company v. D'Agnolo et al

Filing 83

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 12/17/2018: Defendants D'Agnolo and Sullivan's motion for summary judgment on plaintiff's cross-claims, 56 , is granted in part, denied in part. The Liparis 9; claim that D'Agnolo tortiously interfered with the proceeds of the Edward Jones account survives, insofar as that claim is based on the underlying torts of undue influence or fraud. Sullivan and D'Agnolo are entitled to judgment as a matter of law on all of the Lipari children's other claims. [For further detail see attached order.] A status hearing is set for January 17, 2019 at 9:30 a.m. Notices mailed. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN LIPARI, CAROL LIPARI, MARY
LIPARI and PAUL LIPARI,
Cross-Claimants,
v.

No. 17 CV 1566
Judge Manish S. Shah

LINDA SULLIVAN and CLORINDA
D’AGNOLO,
Cross-Defendants.
MEMORANDUM OPINION AND ORDER
Near the end of David M. Lipari’s life, his fiancé, Clorinda D’Agnolo, and his
sister, Linda Sullivan, oversaw changes to David’s estate. If effective, David’s
children (John, Carol, Mary and Paul) would be entitled to receive less of David’s
estate and D’Agnolo would be entitled to receive more. D’Agnolo and Sullivan also
took steps to prevent Carol, Mary and Paul, from seeing David in the hospital (and
took steps to prevent all of the Lipari children from attending his funeral), and
allegedly wrongfully retained some of David’s personal tangible property. The Lipari
children have claims against Sullivan and D’Agnolo for intentional interference with

an expectancy, declaratory judgment, civil conspiracy, conversion and intentional
infliction of emotional distress. Sullivan and D’Agnolo move for summary judgment.1
I.

Legal Standards
Summary judgment is appropriate if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). The moving party must show that, after “construing all facts, and drawing
all reasonable inferences from those facts, in favor of the non-moving party,” United
States v. P.H. Glatfelter Co., 768 F.3d 662, 668 (7th Cir. 2014), a reasonable jury could
not return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The moving party is also entitled to summary judgment where
the “nonmoving party has failed to make a sufficient showing on an essential element
of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).

This case began as an interpleader action filed by Protective Life Insurance Company, the
holder of an insurance policy on David Lipari’s life. [1]. Protective Life filed the action to avoid
multiple or double liability, [1] ¶ 1, and named as parties those persons whom Protective Life
believed had a potential interest in the proceeds of the life insurance policy. See [1] ¶¶ 2–11.
Jurisdiction was proper under 28 U.S.C. § 1335 (providing original jurisdiction over certain
civil actions for interpleader once the plaintiff deposits the disputed proceeds with the
registry of the court). Section 1335 requires “only ‘minimal diversity,’ that is, diversity of
citizenship between two or more claimants, without regard to the circumstance that other
rival claimants may be co-citizens.” State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 530
(1967). Such minimal diversity is present here. [8] ¶ 11 (Sullivan is a citizen of Illinois); [10]
¶ 3 (D’Agnolo is a citizen of Arizona); [18] ¶¶ 4–7 (the Lipari children are each citizens of
Illinois). Protective Life deposited the policy proceeds with the court, [24], and was dismissed.
[13]. The Liparis brought state-law cross-claims against Sullivan and D’Agnolo. [18]. Subjectmatter jurisdiction over those claims is based on 28 U.S.C. § 1367.
1

2

II.

Facts
David M. Lipari played a central role in the Lipari family. He married Susan

Lipari in 1986 and, together, they adopted four children: John, Carol, Mary and Paul.
[60] ¶¶ 1–8.2 David also formed the “David M. Lipari Trust,” which named the Lipari
children as beneficiaries, [59-1] § 4.01; [60] ¶ 11, and his sister, Linda Sullivan, as
trustee. [60] ¶ 12. The trust contained special provisions for Carol, who has muscular
dystrophy and receives funding for treatment through both state and federal
programs. [60] ¶ 6; [34] ¶ 47; [59-4] ¶ 28; [59-1] §§ 4.01, 9.01(d).
David’s trust now plays a central role in this litigation. Under the “David M.
Lipari Trust Agreement”: (1) proceeds from life insurance policies that named the
trust as beneficiary would pay out to a trust estate in part meant to provide for the
Lipari children, [59-1] §§ 1.02; 5.02; 6.01; 8.01; 8.05(e); 9.01(a)–(c); (2) the Lipari
children could not make unfettered decisions about their share of the trust assets (if
any) until reaching the age of thirty-five, see id. § 9.05; and (3) David’s “tangible

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, except in the case of citations
to depositions, which use the deposition transcript’s original page number. The facts are
largely taken from cross-claimant the Lipari children’s responses to cross-defendant Sullivan
and D’Agnolo’s Local Rule 56.1 statement, [60], where both the asserted fact and the opposing
party’s response are set forth in one document. The Lipari children included five additional
facts in their Rule 56.1 statement, [60] ¶¶ 32–37, and Sullivan and D’Agnolo did not file a
responsive Rule 56.1 statement to indicate whether they dispute those additional facts. These
five additional facts are deemed admitted. LR 56.1(b)(3)(C) (“[e]ach party . . . shall serve and
file . . . a statement, consisting of short numbered paragraphs, of any additional facts that
require the denial of summary judgment, including references to the affidavits, parts of the
record, and other supporting materials relied upon”); LR 56.1(a) (“[a]ll material facts set forth
in the statement filed pursuant to section (b)(3)(C) will be deemed admitted unless
controverted by the statement of the moving party”). I refer to the Liparis by their first names
for clarity and brevity.
2

3

personal property” was to be divided up into shares of “substantially equal value” and
distributed to the Lipari children. Id. § 9.01(g).
David and Susan divorced in 2008. [60] ¶ 2. As part of their marriage
dissolution proceedings, they were both precluded from making certain changes to
their life insurance policies. See [57-1] at 3. David was required to maintain the life
insurance policies that named a Lipari child as beneficiary until that child had either
turned twenty-six or turned twenty-three and graduated from college. See id. at 3.
Following the divorce, David started dating (and later moved in with and
became engaged to) Clorinda D’Agnolo. [34] ¶ 53; [60] ¶ 10; [57-2] 50:24–51:5; [574] 54:3–12. The two were living together in the fall of 2015, when David’s health took
a rapid turn for the worse. He was diagnosed with cancer in August, [60] ¶ 17,
admitted to the hospital on October 2, id. ¶ 18, and told his condition was terminal
on October 4, 2015. Id. ¶ 19. He died on October 9, 2015. [60] ¶ 29. D’Agnolo was
appointed independent executor of David’s estate. [34] ¶ 136.
He left behind property. At issue here are: (1) the proceeds from a life insurance
policy issued by the Protective Life Insurance Company3 (worth $1,000,000, naming
the “David M. Lipari Trust” as its sole beneficiary); (2) the balances of two IRA
accounts with Edward Jones (both of which named the “David M. Lipari Trust” as
their sole beneficiary, [60] ¶ 16); (3) the balance of one account with the University of
Three other life insurance policies play a tangential role; two from the North American Life
Insurance Company (each for $250,000, each naming the “David M. Lipari Trust” as their
sole beneficiary), and one from the Minnesota Life Insurance Company (for $394,200), [60]
¶¶ 13(a)–(c); 16. The proceeds from these policies are no longer at issue, [60] ¶¶ 13(c), 22, but
the changes that were made to them provide circumstantial evidence that is relevant to the
parties’ dispute about David’s other assets.
3

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Illinois Credit Union (which named no beneficiary), [60] ¶¶ 15–16; (4) four paintings
and one wood carving, and (5) and a host of David’s personal effects (including, for
example, cufflinks, a floor lamp, and “[m]iscellaneous yard tools”). [57-1] at 10–13;
[57-3].
David’s final days were hectic. Adding to the tumult were some last-minute
changes to David’s assets. On October 6, while David was in the hospital, sometime
after John’s twenty-sixth birthday, see [57-4] 243:12–16, and just three days before
David died, Sullivan prepared a change of beneficiary form for the Protective Life
insurance policy that (if effective) would have changed the beneficiary from the trust
to Mary, Carol, Paul, and D’Agnolo in equal, twenty-five percent shares. [60]
¶ 20; [57-2] 91:15–93:10. In effect, the move would have nullified John’s right to
receive those proceeds as a trust beneficiary subject to the trust’s terms, and instead
granted D’Agnolo, Mary, Carol, and Paul the right to receive $250,000, directly and
unencumbered, upon David’s death.
That same day, Sullivan made the same change to both of the North American
insurance policies. [60] ¶¶ 20–21. D’Agnolo prepared change of beneficiary forms for
the Edward Jones and University of Illinois accounts. [60] ¶¶ 25, 27.4 She made

There is some disagreement about who actually signed the change-of-beneficiary forms for
the Protective Life insurance policy, the Edward Jones accounts, and the Illinois Credit
Union account. Sullivan and D’Agnolo say that they prepared the forms and that David
signed them. [58] ¶¶ 24, 26 (referring to the Protective Life Insurance form but, in context,
appearing to refer to the Edward Jones form), 28. The Lipari children do not admit that David
signed any of these forms and admit only that the signature on the form for the Protective
Life insurance policy is “purportedly” that of David Lipari. [60] ¶ 24. The Liparis offer no
evidence to contest the fact that David signed the forms, so I accept it as true for purposes of
the motion for summary judgment.
4

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herself the sole beneficiary of the Edward Jones accounts (replacing the “David M.
Lipari Trust”), [60] ¶¶ 16, 25, and the sole beneficiary of the University of Illinois
account (replacing no one; prior to the change, the University of Illinois account
named no beneficiary). [60] ¶¶ 16, 27. Sullivan and D’Agnolo did not make any
changes to the Minnesota Life insurance policy, [60] ¶¶ 35–36, which, the Lipari
children say, was an oversight explained by D’Agnolo’s mistaken belief that she was
already the sole beneficiary of that policy. [60] ¶ 36. See also [57-4] 201:23–202:7. All
told, the changes (if effective) would have removed from the trust estate more than
$1,500,000.
Both Sullivan and D’Agnolo say that each of these changes was in accordance
with David’s wishes, [57-2] 84:1–24; 118:1–3; 121:14–15; [57-4] 195:22–196:20;
234:11–18, and D’Agnolo says it was at his direction, [57-4] 246:6. But the parties
dispute whether David had the mental capacity to make the changes. The Lipari
children say he did not. Dr. Esam Dajani, a pharmacologist and professor of medicine
at Loyola University-Chicago, reviewed David’s medical records after David’s death
and concluded that, at the time of the changes, David had “impaired cognitive
functions,” was susceptible to undue influence, “lacked the mental capacity to
comprehend the kind and nature” of his property and was unable to “make a knowing
disposition” of that property according to his own plans (rather than those of the
people around him). [60] ¶ 34; [59-2] ¶¶ 4, 7, 21. Sullivan testified that, while
directing the various changes to his estate, David was his normal, lucid self. [57-2]

6

223:12–16.5 D’Agnolo testified that, up until October 7, David was “sharp as a tack”
and speaking with the “same cadence and the same abilities” that he had prior to
falling ill. [57-4] 168:7–10.
The changes to David’s estate foretold other dramatic events in the final
moments leading up to (and following) his death. On October 8, the day before David
died, Sullivan contacted John to tell him that his father was in the hospital and would
not live much longer. See [34] ¶ 68; [57-2] 115:13–116:2. Sullivan says she did this
against David’s wishes and out of concern for the Lipari children’s well-being. [57-2]
114:8–16; 115:13–116:2; [57-4] 151:6–9; 164:11–15. John, shaken, [59-3] ¶ 6, rushed
to the hospital and spent between one and two hours speaking with David before
departing. [57-2] 148:17–149:5; [57-4] 172:10–21; [59-3] ¶ 7.
The hour that followed John’s departure was maybe the most dramatic of all.
David fell asleep and never woke up again. [57-2] 75:1–3; 127:13–15. Ex-wife Susan
learned of David’s illness (probably through John) and set out to obtain a temporary
restraining order freezing David’s assets. See [57-2] 152:9–16; 156:23–157:10; [59-3]
¶¶ 6, 11. D’Agnolo learned about Susan and John’s efforts to freeze David’s assets,
[57-2] 152:9–16; 155:17–156:10; [57-4] 186:10–14, and told John that neither he nor

But Sullivan’s conduct is inconsistent with that observation. She says that, when signing
the form for the North American insurance policies, she “used” her “durable financial power
of attorney,” [60] ¶ 21, which only would have been effective if David “lack[ed] sufficient
capacity to make or communicate responsible decisions concerning the management of
assets.” [18-3] at 10; [60] ¶ 21; [34] ¶ 63. Without addressing whether Sullivan properly
invoked her powers, the North American Insurance Company apparently decided that
Sullivan’s power of attorney did not include the power to change beneficiaries, [57-1] at 5,
¶ 10(a), and so ignored the requested change and deposited the proceeds with the David M.
Lipari trust. [60] ¶ 22.
5

7

any of his siblings would be allowed to speak with David or return to the hospital,
[57-4] 175:8–176:13; 185:19–186:22, and that if any of them tried to come back she
would ask security to keep them out. [57-2] 183:13–21. She followed through on this
threat, instructing the hospital’s security team to not allow the Lipari children into
David’s room. [60] ¶ 37(b); [57-4] 183:17–19.
Things only got messier after David died. The Lipari children requested and
were denied information about the location and timing of the funeral service,
visitation, burial and the location of the cemetery where he was to be buried. See [572] 160:10–21; 202:4–8; [57-4] 273:9–13. The children were also told that security
guards would be hired to keep the children out of the funeral. [57-4] 273:9-15. Each
of the Lipari children submitted declarations documenting the pain and suffering this
caused them. [59-3] ¶¶ 19–21, 23–25, 27; [59-4] ¶¶ 9, 11–14, 17–19; [59-5] ¶¶ 9–15;
[59-6] ¶¶ 9–13.
David’s personal property took a convoluted path of distribution. The record
does not paint a complete picture of what, exactly, ended up where (let alone when)6,
but the Lipari children think some of it still is missing. They point to circumstantial
evidence suggesting that, because Sullivan and D’Agnolo went to David’s apartment
after he died and moved some of his belongings, [57-2] 172:18–176:20, and because

Some of it was found in David’s apartment, later moved to storage, [57-2] 174:10–176:19,
and eventually auctioned off. See [57-4] 297:19–298:6. Property from David’s office at the
University of Illinois was thrown away, shredded, or donated. [57-4] 306:23–307:1; 309:1–7.
Sullivan took possession of the pictures and wood carvings for a short period of time before
giving them to the Lipari children, [60] ¶ 31; [57-2] 177:2–5, except for one painting, which
Sullivan kept, see [57-2] 197:10–19, pursuant to the Lipari children’s indication that she
should be allowed to keep it. [57-3] at 3. And John did eventually pick up some of the rest of
David’s personal effects from D’Agnolo’s attorney on October 3, 2017. [57-1] at 24–25.
6

8

the Lipari children still do not have some of the property that they believe David
possessed at his death, the record “supports an inference that Sullivan has other
property” belonging to David. [60] ¶ 31; [57-4] 295:24–305:5; [57-2] 172:18-178:7; [571] at 10–15. D’Agnolo says that, to the degree she possesses any property that at one
point belonged to David, that property is her property because David gave it to her
before he died. [57-4] 297:13–16. And D’Agnolo and Sullivan draw attention to an
“Agreement to Terminate” filed in In the Matter of the Estate of David M. Lipari, Case
No. 15-P-302, Circuit Court of Champaign County, Illinois, that says that “all
personal property of [David] known by [D’Agnolo] to be in her possession or control”
was returned to Susan Lipari as of August 24, 2017, [57-1] at 20, with a disclaimer
that the agreement “does not preclude or bar [Susan Lipari] or the heirs from
pursuing any claims they may have arising out of the handling of the Estate by
D’Agnolo . . . in any of the previously identified cases pending in the U.S. Federal
District Court for the Northern District of Illinois.” Id. at 19.
Lastly, the parties disagree about David’s relationship with his children.
Sullivan says that David and his children stopped seeing each other in 2011 or early
2012. [57-2] 37:22–38:8; 41:16–19. D’Agnolo says that David contacted his children at
least once a week from 2009 to 2012, [57-4] 61:10–13, saw them on-and-off during
that period as well, see [57-4] 67:5–69:22, and sent them birthday and Christmas
cards until as late as 2015, [57-4] 71:8–11, but had ceased seeing them by the time he
died, [57-4] 71:2–7; 276:18–21, and was “at peace” with the idea that he might never
see them again. [57-4] 152:3–8. The Lipari children each assert that they had a close,

9

loving relationship with their father, [59-3] ¶¶ 3–4; [59-4] ¶¶ 3–4; [59-5] ¶¶ 3–4; [596] ¶¶ 3–4, and Carol, Mary, and Paul note that they vacationed together with their
father and saw him “as much as the distance and his work allowed.” [59-4] ¶ 4; [595] ¶ 4; [59-6] ¶ 4.
III.

Analysis
A.

Evidence Considered
1.

The Illinois Dead Man’s Act

The Lipari children make an initial appeal to the Illinois Dead Man’s Act,
aiming to exclude all of Sullivan and D’Agnolo’s testimony about their conversations
with David. [59] at 4–5. See also Fed. R. Evid. 601 (“state law governs the witness's
competency regarding a claim or defense for which state law supplies the rule of
decision”).7 The act prohibits any “adverse party or person directly interested in the
action” from testifying about conversations with a deceased person in an action “in
which any party sues or defends as the representative of a deceased person.” 735
ILCS 5/8-201.
Under the statute, a “representative” includes any “executor, administrator,
heir or legatee of a deceased person and any guardian or trustee of any such heir or
legatee.” 735 Ill. Comp. Stat. Ann. 5/8-201. Courts look to the substance of the
underlying claims to determine whether a party is suing or being sued “as” a
representative, not simply whether they happen to hold a position that might
otherwise qualify them as a representative. See Roberts v. Pierce, 79 Ill. 378, 381

Illinois law applies. FutureSource LLC v. Reuters Ltd., 312 F.3d 281, 283 (7th Cir. 2002)
(where there is “no discussion of choice of law issues,” the law of the forum state governs).
7

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(1875) (act did not apply where “[i]t was not necessary [that the complainant] should
describe himself as administrator in bringing the suit”); Lasky v. Smith, 407 Ill. 97,
103 (1950) (act did not apply where “the nature of their respective claims d[id] not
bring them within” the act).
D’Agnolo, the executor of David’s estate, [34] ¶ 136, and Sullivan, the trustee
of the David M. Lipari trust, [60] ¶ 12, say the Act does not apply because neither of
them are “suing or defending as the representative of a deceased person; they are
simply suing and defending as individuals.” [70] at 3. They are correct; both D’Agnolo
and Sullivan are being sued for actions they took in their personal capacity. D’Agnolo
did not rely on her powers as executrix when making the contested changes, and
Sullivan did not rely on her powers as trustee. Neither would be able to pay damages
out of David’s estate. Both happened to be representatives, but neither are defending
“as” representatives.
The children might qualify as “representatives of a deceased person” because
they are heirs. In re Estate of Schlenker, 209 Ill.2d 456, 462 (2004) (an “heir” is
“anyone who would take from a person's estate under the statute of descent and
distribution if that person died without leaving a will”). All four children would have
been entitled to some portion of David’s estate if David had died intestate. See 755
Ill. Comp. Stat. Ann. 5/2-1(a) & (b); 755 Ill. Comp. Stat. Ann. 5/2-4 (adopted children
are “descendants” so long as they were adopted prior to turning eighteen). See also
[60] ¶¶ 2, 4–8 (all four children were adopted before turning eighteen). Or, they might

11

qualify as “legatees,” because they are beneficiaries of the trust, and the trust is the
sole beneficiary of David’s will. [60] ¶ 30.
But like Sullivan and D’Agnolo, the Lipari children are not suing “as” heirs or
legatees, either; their tortious interference and conversion claims derive from their
right to inherit a portion of David’s estate via the David M. Lipari trust, and Sullivan
and D’Agnolo did not interfere with their right to take “as heirs”—they (allegedly)
interfered with their right to take via that trust, as beneficiaries.8 Illinois courts draw
a distinction between heirs and grantees; the act does not apply where someone who
happens to be an heir at law is suing “as grantee.” Hudson v. Hudson, 237 Ill. 9, 14
(1908); Grindle v. Grindle, 240 Ill. 143, 146 (1909). The same distinction applies to
beneficiaries of beneficiary certificates. See Farrenkoph v. Holm, 142 Ill.App. 336, 340
(2nd Dist. 1908) aff'd, 237 Ill. 94 (1908) (beneficiary of “beneficiary certificate” was
not suing as a representative); Sherret v. Royal Clan of the Order of Scottish Clans,
37 Ill.App. 446, 447 (1st Dist. 1890) (“Mrs. Sherret does not bring this suit as executor,
administrator, heir, legatee or devisee of her deceased husband, but simply as the
beneficiary named in the certificate by him received from the order”).

There is one exception. The University of Illinois account named no beneficiary prior to
D’Agnolo’s preparation of the change of beneficiary form. [60] ¶¶ 14, 27. The trust does not
address that money, and it would not have passed through the trust unless a provision in
David’s will so dictated. Neither party attached a copy of David’s will, nor presented any
other argument establishing that the money in that account would have ended up with the
Lipari children. In the absence of such a showing, the Lipari children have failed to establish
that they are suing “as legatees.”
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The act does not apply because none of the parties are suing or being sued “as”
executor, administrator, heir, legatee (or trustee of an heir or legatee) of a deceased
person.9
2.

Dr. Dajani’s Report

The parties dispute whether Dr. Esam Dajani’s expert report is admissible.
Sullivan and D’Agnolo say that a pharmacologist is not qualified to render a medical
opinion about an individual’s cognitive abilities or a legal opinion about the requisite
capacity for executing documents. [70] at 5–13. The Lipari children say only that Dr.
Dajani’s report is “admissible evidence.” [59] at 8–9.
Under Federal Rule of Evidence 702, a qualified expert may testify in the form
of an opinion if the expert has specialized knowledge that would be helpful on a
material issue, and the testimony is the product of a reliable methodology applied to
the facts of the case. The role of the district court is to act as “gatekeeper” when
“determin[ing] if the expert opinion is reliable and relevant to the case at hand.”
United States v. Allen, 269 F.3d 842, 846 (7th Cir. 2001); Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 145 (1999).
Dr. Dajani is a trained pharmacologist. He has a Ph.D. in pharmacology and
toxicology from Purdue University and nearly fifty years of experience in the field.
[59-2] ¶ 7. He is an adjunct professor of medicine at Loyola University-Chicago and

Even if the act did apply, the result of my analysis would be the same; any conversation
between Sullivan or D’Agnolo and David is construed in favor of the Lipari children, United
States v. P.H. Glatfelter Co., 768 F.3d 662, 668 (7th Cir. 2014), and even if I were to exclude
those conversations from my consideration entirely, there would still be other evidence that,
when considered as a whole, would be sufficient to support the Lipari children’s surviving
claims.
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has conducted gastrointestinal pharmacology and toxicology research at two different
laboratories. Id. His educational background and experience qualify him to testify as
an expert on certain subjects.
David’s mental capacity is a fact in issue, and Dr. Dajani’s scientific knowledge
will assist the trier of fact in understanding some of the evidence relevant to the
Lipari children’s claims. The Lipari children can support their tortious interference
with an expectancy claim by showing that Sullivan and D’Agnolo engaged in “conduct
tortious in itself such as fraud, duress or undue influence.” Nemeth v. Banhalmi, 99
Ill.App.3d 493, 499 (1st Dist. 1981). Their undue influence claim is stronger if they
can show that David was susceptible to such influence. In re Estate of Hoover, 155
Ill.2d 402, 411 (1993) (the influence “must be of such a nature as to destroy the
testator’s freedom concerning the disposition of his estate and render his will that of
another”); Gum v. Reep, 275 Ill. 503, 513 (1916) (“[w]here the mind is wearied and
debilitated by long-continued and serious and painful sickness, it is susceptible to
undue influence and is liable to be imposed upon by fraud and misrepresentation”);
Schmidt v. Schwear, 98 Ill.App.3d 336, 342 (5th Dist. 1981). A medical doctor’s
testimony can help the trier of fact determine how likely it was that undue influence
occurred by describing the effect that medication would have had on the deceased’s
ability to “exercise her will . . . in signing [a] change of beneficiary form.” Prudential
Ins. Co. of Am. v. Anderson, No. 95 C 5322, 1996 WL 734722, at *3–4 (N.D. Ill. Dec.
19, 1996) (doctor’s report was sufficient to create genuine issue of material fact where

14

the doctor’s pharmacological analysis of the medications administered contradicted
other testimony regarding decedent’s mental capacity).
Dr. Dajani reviewed David’s medical files before issuing his report. See [59-2]
¶¶ 12, 14. His opinion expresses familiarity with the treating physicians’ records, [592] ¶ 12, several laboratory tests, [59-2] ¶ 14, procedures performed on David, [59-2]
¶ 18, and various drugs administered to David. [59-2] ¶ 17. See also [59-2] ¶ 23
(“[t]hese opinions are based on my review of the records identified in my report, and
the facts, reports, tests, labs, etc., contained therein”). Sullivan and D’Agnolo argue
that portions of the report should be excluded because Dr. Dajani never interviewed
anyone, [70] at 9, but there is no requirement that the expert witness have personal
knowledge of the subject matter he or she is testifying about. See Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999) (testimony admissible “whether bas[ed]
. . . upon professional studies or personal experience”); Davis v. Unum Life Ins. Co. of
Am., 444 F.3d 569, 577 (7th Cir. 2006) (noting the commonplace practice of doctors
arriving at professional opinions after reviewing medical files).
Other portions of Dr. Dajani’s report are either beyond his qualifications or
otherwise lacking an adequate foundation. For instance, expert witnesses are not
allowed to draw legal conclusions. W. By & Through Norris v. Waymire, 114 F.3d 646,
652 (7th Cir. 1997). For that reason, I find inadmissible (and disregard) Dr. Dajani’s
conclusion that David “lacked the essential judgment or mental abilities to
comprehend or understand the effects, reasons or basis for the execution of ‘Change
of Beneficiary’ forms,” [59-2] ¶ 4, his conclusion that David was “not capable of

15

knowing and remembering those persons he wished to leave his property to,” [59-2]
¶ 23, and all similar conclusions. The Liparis have failed to establish how a
pharmacologist is capable of opining on a specific person’s capacity to dispose of
property, and it is their burden to do so.
Some portions of Dr. Dajani’s report are based on sufficient facts and within
his expertise. For instance, it was within Dr. Dajani’s expertise to make diagnoses
that derived from observations of physical phenomena ongoing in David’s body that
do not themselves carry legal meaning. I do not exclude Dr. Dajani’s conclusion that
David had “decreased mental alertness and cognitive functions,” [59-2] ¶ 8, was in
“an impaired and altered mental state,” [59-2] ¶ 14, and other similarly
pharmacologically based opinions.
Sullivan and D’Agnolo argue that part of Dr. Dajani’s report should be held
inadmissible because the nursing staff at the hospital disagreed with Dr. Dajani’s
assessment. [70] at 9. See also [59-2] ¶ 11. At least according to Dr. Dajani’s review
of the records, the treating physicians disagreed with the nurses, too. See [59-2] ¶ 12.
That said, the portion of Dr. Dajani’s report that criticizes the nurses’ records because
the nurses’ examination of David was “limited to the most basic basis of a person’s
abilities,” [59-2] ¶ 11, seems speculative and the Liparis fail to explain how such
criticism falls under the rubric of pharmacology.
In addition, Dr. Dajani must use reliable principles and methods when drawing
his opinions and conclusions. My task is to determine “whether the testimony has
been subjected to the scientific method,” and I must rule out “subjective belief or

16

unsupported speculation.” Porter v. Whitehall Labs., Inc., 9 F.3d 607, 614 (7th Cir.
1993).
Neither Dr. Dajani’s report nor the Lipari children’s brief explains whether his
review of David’s voice in phone calls is part of a reliable methodology to render a
pharmacological opinion. See [59-2] at ¶ 22. The same can be said of Dr. Dajani’s
conclusion that David’s signature indicates “diminished capacity.” Id. There has been
no showing that Dr. Dajani has specialized knowledge that would allow him to
interpret David’s handwriting, signature or voice. See id. As Sullivan and D’Agnolo
point out, Dr. Dajani’s opinions in that regard are not pharmacological. [70] at 10. As
the proponents of expert evidence, the Lipari children bear the burden of establishing
admissibility, and they have not provided the necessary analysis for this portion of
Dajani’s report. I disregard his interpretation of the October 6, 2015 phone call. See
[59-2] at ¶ 22. In theory, the recordings themselves could be used by jurors to
determine whether Sullivan overcame David’s free will, but the jurors would not
benefit from knowing Dr. Dajani’s opinions on such matters. See [74].
Many of Dr. Dajani’s remaining opinions have been subjected to the scientific
method and represent neither his subjective beliefs nor his unsupported speculations.
They are admissible. For instance, his conclusion that David’s “progressive hepatic
encephalopathy” led to “psychiatric changes” is supported by reference to a medical
dictionary that has been found to provide reliable definitions of various ailments. See
Scholl, Inc. v. S. S. Kresge Co., 580 F.2d 244, 247 (7th Cir. 1978); [59-2] ¶¶ 4, 8, 10.
He has a basis to provide definitions of ailments, see, e.g., [59-2] ¶ 9 (“TLS is a

17

metabolic derangement”), and assessments of bodily processes and their effects, see,
e.g., [59-2] ¶ 15 (concluding that a patient with an impaired liver would likely
experience the deleterious effects of a medication for longer periods of time than
would a patient with a functioning liver). Dr. Dajani’s experience and expertise are
sufficient to form the basis of a reliable opinion on such easily-testable matters. He
cites to various studies that are consistent with materials relied upon by people in
his field. See, e.g., [59-2] ¶ 9 (“TLS results from the rapid destruction of malignant
cells . . . (Cairo and Bishop 2004, Ikeda 2016)”).10
B.

Intentional Interference with Expectancy

In order to establish that they are entitled to recover on their claim for
intentional interference with an expectancy against both Sullivan and D’Agnolo, the
Lipari children must show “(1) the existence of [their] expectancy; (2) that defendants
intentionally interfered with [their] expectancy; (3) the interference involved conduct
tortious in itself such as fraud, duress or undue influence . . . ; (4) that there is a
reasonable certainty that the devise to plaintiff[s] would have been received but for
defendants’ interference . . . ; and (5) damages.” Nemeth v. Banhalmi, 99 Ill.App.3d
493, 499 (1st Dist. 1981) (citations omitted).
The Lipari children’s theory is that they had an expectancy in the proceeds of
the Protective Life insurance policy, the money in the Edward Jones and University
of Illinois accounts, and David’s personal property, see, e.g., [18] ¶¶ 112–114, 119, and

There is one exception: Dr. Dajani cites no support for his conclusion that “high serum
ammonia . . . likely significantly altered [David’s] mental state.” [59-2] ¶ 14. Accordingly, I
find inadmissible (and disregard) that portion of Dr. Dajani’s report.

10

18

that both Sullivan and D’Agnolo interfered with that expectancy either by exerting
undue influence on David in order to force him to change the beneficiaries for his life
insurance policy and Edward Jones and University of Illinois accounts, [59] at 5; [18]
¶ 95, by fraudulently representing that David desired to make those same changes,
[59] at 3, [18] ¶ 95, or by converting David’s personal property by possessing it in
contravention to his inheritance plan. [59] at 3.
1.

A Will Contest Would not Have Provided Adequate Relief

According to Sullivan and D’Agnolo, the Lipari children’s claim for intentional
interference with expectancy will not lie because “the remedy of a will contest is
available and would provide the injured party with adequate relief.” In re Estate of
Hoover, 160 Ill.App.3d 964, 966 (1st Dist. 1987); Robinson v. First State Bank of
Monticello, 97 Ill.2d 174, 186 (1983); [57] at 2–3.
A will contest would not provide adequate relief. David’s will plays a minor role
in the Lipari children’s tortious interference claim, if it plays any role at all: the trust
provided for the distribution of all of the financial, §§ 1.02; 5.01; 6.02, and tangible,
§ 9.01(g), property at issue in this case. Neither party even attached David’s will, let
alone pointed to some specific provision that might supersede or contradict the
distributary scheme described in the trust. See [60] ¶ 30 (Sullivan and D’Agnolo
admit that David’s will names the trust as its sole beneficiary). And since a will
contest would only allow the Lipari children to set aside David’s will, In re Estate of
Ellis, 236 Ill.2d 45, 51 (2009), (“[t]he object of a will contest proceeding is not to secure
a personal judgment against an individual defendant but is a quasi in rem proceeding
to set aside a will”), it would not allow the Lipari children to obtain recompense for
19

the funds they say were tortiously redirected to D’Agnolo. See [34] ¶ 102 (seeking
damages including “diminution of the amount of amount [sic] of their expectancy, loss
of use of their expectancy, attorney’s fees, costs and other damages”); In re Estate of
Hoover, 160 Ill.App.3d 964, 966 (1st Dist. 1987) (finding adequate relief where the
plaintiff would receive through the will contest “all the relief that they could have
received as actual damages in the tort action”). Neither In re Estate of Hoover, 160
Ill.App.3d at 966, nor Robinson, 97 Ill.2d at 186, bar the Lipari children’s claims.11
2.

The Lipari Children had an Expectancy in all of the Property at
Issue.

The Lipari children say that they have produced evidence tending to show that
they had an expectation in the proceeds from the Protective Life insurance policy; the
life insurance policies that named the trust as beneficiary would pay out to a trust
estate meant (in part) to provide for the Lipari children. [59-1] §§ 1.02; 5.02; 6.01;
8.01; 8.05(e); 9.01(a)–(c). They say the same thing about the Edward Jones accounts
(both of which named the “David M. Lipari Trust” as their sole beneficiary
immediately prior to the last-minute changes, [60] ¶ 16), and David’s personal

Even if Sullivan and D’Agnolo had addressed the line of cases that discuss trust contests
rather than will contests, see, e.g., Pernod v. Am. Nat. Bank & Tr. Co. of Chicago, 8 Ill.2d 16
(1956); 755 Ill. Comp. Stat. Ann. 5/8-1(f), their argument would fail for the same reason:
setting aside the trust would not deliver to them the remedy they seek in their complaint. In
re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 23 (the remedy for a tortious interference
with expectancy claim premised on the violation of the terms of a trust that received property
via a will “is a personal judgment against the individual defendant, which may be a money
judgment or the imposition of a constructive trust or equitable lien where the defendant
wrongfully received the legacy,” while the remedy for a trust contest is simply the “setting
aside of the trust”). What the Lipari children really need is a process that allows them to set
aside the change-of-beneficiary forms that were executed just prior to David’s death. Their
tortious interference claim provides an adequate process for achieving an equivalent result.
11

20

property (the trust agreement states that, following his death, all of David’s personal
property should have been divvied up amongst the children, § 9.02(g)).
Sullivan and D’Agnolo assert that, for purposes of a claim for interference with
an expectancy, the “expectancy” can only arise from a will. See [70] at 2, (citing In re
Estate of Roeseler, 287 Ill.App.3d 1003, 1021 (1st Dist. 1997)). While the expectancy
in In re Estate of Roeseler happened to arise from a will, the case does not stand for
the proposition that an expectancy can only arise from a will. Other cases recognize
that a claim for intentional interference with an expectancy can lie where that
expectancy derives from a “trust that receives a legacy from a will.” See In re Estate
of Luccio, 2012 IL App (1st) 121153, ¶ 31; Cleland v. Cleland, 2018 IL App (2d)
170949, ¶¶ 40–41, appeal denied, No. 124055, 2018 WL 6251973 (Ill. Nov. 28, 2018)
(in the context of a claim for “tortious interference with inheritance expectancy,”
finding that an expectancy existed in funds distributed first via a pour-over will into
a trust, even though tortious conduct at issue pertained to interference with a right
to take pursuant to the trust and not the will). See also In re Marriage of Velasquez,
295 Ill.App.3d 350, 353 (3rd Dist. 1998) (in divorce proceedings, spouses can have
“expectancies” in land trusts and insurance policies).
Even though neither side has identified Illinois law that determines the issue,
I predict that the Illinois Supreme Court would hold that an “expectancy” arising
from a trust can form the basis of a claim for intentional interference with an
expectancy. Wills and trusts both contain a decedent’s wishes and directions, they
both may be contested under the Illinois Probate Act, See 755 ILCS 5/8–1, and such

21

a decision would further the goal of judicial economy by having all will and trust
disputes resolved under the Probate Act. The caselaw has changed the term from
“expectancy” to “inheritance expectancy” in cases where the will plays a less
important role, suggesting a broader approach than would “testamentary
expectancy.” Cleland v. Cleland, 2018 IL App (2d) 170949, ¶ 40, appeal denied, No.
124055, 2018 WL 6251973 (Ill. Nov. 28, 2018). The Lipari children had an expectancy
in the proceeds of the Protective Life insurance policy and the Edward Jones accounts
that falls within the scope of their tort claim.
The Lipari children fail to establish, however, that they had an expectancy in
the proceeds from the University of Illinois credit account. Immediately prior to
D’Agnolo’s actions, the University of Illinois account named no beneficiary. [60]
¶¶ 14–15. It is possible that the proceeds in that account would have been distributed
in accordance with David’s will, which named the David M. Lipari trust as its sole
beneficiary. [60] ¶ 30. But the Lipari children have failed to produce evidence from
which a reasonable jury could conclude such an expectancy existed; they have not
produced a copy of David’s will, or pointed to any other instrument that would have
directed the funds from the University of Illinois account to the Lipari children.
Sullivan and D’Agnolo are entitled to judgment as a matter of law on the Lipari

22

children’s claim that they tortiously interfered with the Lipari children’s expectancy
in the proceeds of the University of Illinois credit account.
3.

There is Sufficient Circumstantial Evidence that D’Agnolo
Interfered with the Lipari Children’s Expectancy in the Edward
Jones Account.

The Lipari children need to prove that Sullivan and D’Agnolo’s “interference”
was itself “tortious.” Nemeth, 99 Ill.App.3d at 499. In order to meet this element of
their claim for an intentional interference with an expectancy, the Lipari children
could “state a claim for fraud,” In re Estate of Mocny, 257 Ill.App.3d 291, 298 (1st Dist.
1993), by showing “(1) a false representation of material facts as opposed to opinion;
(2) made by one who knew or believed the representation to be untrue; (3) made to a
party who had a right to rely on the representation and, in fact, did so; (4) made for
the purpose of inducing the other party to act, or to refrain from acting; and (5) that
led to injury to the person who relied upon it.” Trautman v. Knights of Columbus, 121
Ill.App.3d 911, 914 (1st Dist. 1984). The elements must be stated with “specificity,
particularity and certainty.” Id.
Alternatively, the Lipari children could establish that Sullivan and D’Agnolo
committed the tort of “undue influence.” In DeHart v. DeHart, the Illinois Supreme
Court reiterated that the tort of undue influence resists formulaic approach (2013 IL
114137, ¶ 27) (citations omitted) (internal quotations omitted):
What constitutes undue influence cannot be defined by fixed words and will
depend upon the circumstances of each case. The exercise of undue influence
may be inferred in cases where the power of another has been so exercised
upon the mind of the testator as to have induced him to make a devise or confer
a benefit contrary to his deliberate judgment and reason . . . False or
misleading representations concerning the character of another may be so
connected with the execution of the will that the allegation that such
23

misrepresentations were made to the testator may present triable fact
questions on the issue of undue influence.
One initial problem with the Lipari children’s undue influence claim is that
David’s will is not at issue. See [70] at 2 (Sullivan and D’Agnolo claim that there was
no tortious conduct because the Lipari children have not alleged that anyone
“compelled [David] to change the disposition of his assets under his Will or his
Trust”). The alleged changes were made to a life insurance policy and two bank
account beneficiary agreements. All three are contracts, not wills. See Hobbs v.
Hartford Ins. Co. of the Midwest, 214 Ill. 2d 11, 17 (2005) (“[a]n insurance policy is a
contract, and the general rules governing the interpretation of other types of
contracts also govern the interpretation of insurance policies”).
When someone improperly coerces someone into signing a contract, they
commit the tort of “duress,” not undue influence. Nowhere in their cross-complaint or
in their response to the motion for summary judgment do the Lipari children assert
that Sullivan or D’Agnolo committed the tort of “duress,” or that a theory of undue
influence can be used to invalidate a contract. See [18]; [59].
Yet in certain circumstances, Illinois courts have held that a theory of “undue
influence” can be used to invalidate other types of contracts, see, e.g., Bruzas v.
Richardson, 408 Ill.App.3d 98, 103 (1st Dist. 2011) (invalidating agreement to pay
interest made between attorney and client); Mees v. Steffey, 310 Ill. 161, 166 (1923)
(undue influence can invalidate the execution of a deed), and have acknowledged that
it may be a proper basis for invalidating changes made to life insurance policies.
Matter of Denler’s Estate, 80 Ill.App.3d 1080, 1091 (3rd Dist. 1980); Pingree v. Jones,
24

80 Ill. 177, 180 (1875). See also Handelsman v. Handelsman, 366 Ill.App.3d 1122,
1130 (2nd Dist. 2006) (“will substitutes,” which are defined to include “an
arrangement respecting property or contract rights that is established during the
donor’s life, under which (1) the right to possession or enjoyment of the property or to
a contractual payment shifts outside of probate to the donee at the donor’s death; and
(2) substantial lifetime rights of dominion, control, possession, or enjoyment are
retained by the donor” are to be “construed according to the rules used to construe
wills”). The Lipari children’s claim cannot be dismissed just because David’s will is
not at issue; Illinois law is broad enough to encompass a claim that a life insurance
policy should be invalidated because of undue influence. See DeHart v. DeHart, 2013
IL 114137, ¶ 27.
Sullivan and D’Agnolo point out that there is a dearth of direct evidence and
conclude therefrom that there is “no evidence” of tortious conduct. [57] at 4. But
circumstantial evidence can be enough to defeat a motion for summary judgment,
especially where direct evidence is unavailable, Abdullahi v. City of Madison, 423
F.3d 763, 772 (7th Cir. 2005), and where the circumstantial evidence creates an “issue
of credibility.” Boyd v. Wexler, 275 F.3d 642, 645 (7th Cir. 2001). Both fraud and
tortious interference may be (and are often best) proven by circumstantial evidence.
Gray v. Solomon, 338 Ill. 433, 440 (1930) (fraud is “devious, often, and at all times
intended to be hidden; and, if brought to light, it must usually be by the means of

25

presumptive or circumstantial evidence”); In re Estate of Hoover, 155 Ill. 2d 402, 411–
12 (1993) (“[p]roof of undue influence may be wholly inferential and circumstantial”).
There is circumstantial evidence that D’Agnolo committed the tort of fraud
when she executed the change of beneficiary form for the Edward Jones accounts.
D’Agnolo submitted the change of beneficiary form for the two Edward Jones accounts
shortly before David’s death, [60] ¶ 25; 26, the result of those changes was that
D’Agnolo inherited the proceeds of the two accounts in place of the Lipari children,
id.; the only testimony presented to confirm that David intended this change was that
of D’Agnolo, see [57-4] 247:7–249:22; see also [57-2] 191:8–19 (Sullivan was not
involved in the changes to the Edward Jones accounts), and David and his children
enjoyed a close, loving relationship that was in conflict with David’s last-minute move
to disinherit them. [59-3] ¶¶ 3–4; [59-4] ¶¶ 3–4; [59-5] ¶¶ 3–4; [59-6] ¶¶ 3–4. In other
words, D’Agnolo had a motive for making the change (she directly profited from it),
and the opportunity to make the change (she and David spent a lot of time alone while
David was arguably in a weakened state, [59-2]), and David had a reason to not make
the change (he had a close relationship with his children, at least according to his
children). Sullivan knew nothing about the changes to the Edward Jones accounts;
she was not even in the room to monitor D’Agnolo and prevent her from making the
(allegedly) fraudulent change, and cannot corroborate D’Agnolo’s account. [57-2]
191:8–19. Lastly, D’Agnolo’s primary explanation for making the change (that David
told her to make it) is not entirely convincing; D’Agnolo offers no explanation as to
why David also failed to mention the need to change the Minnesota Life insurance

26

policy, too, nor any explanation for why David dropped his concerns about Carol’s
medical care.
From this, a reasonable juror could conclude that all but the last of the
elements of a claim for fraud have been met. See Trautman v. Knights of Columbus,
121 Ill.App.3d 911, 914 (1st Dist. 1984). D’Agnolo represented to Edward Jones that
David desired to change the beneficiaries to his Edward Jones account; there is
circumstantial evidence that such an assertion was untrue and that D’Agnolo knew
it; Edward Jones had a right to rely on the change-of-beneficiary form and in fact did;
and there is circumstantial evidence that D’Agnolo made the change in order to
induce Edward Jones into acting.
As the elements are phrased in Trautman, the Lipari children cannot establish
the final element; the Lipari children allege that they were the ones harmed by the
fraud, not Edward Jones. 121 Ill.App.3d at 914. Other cases drop the requirement
that the injury must be suffered by the person who relied on the statement when
listing the elements. See McCarter v. State Farm Mut. Auto. Ins. Co., 130 Ill.App.3d
97, 101 (3rd Dist. 1985) (stating that the fifth element of a fraud claim is simply,
“damages”). In the context of a claim for an intentional interference with an
expectancy, Illinois courts recognize that the damages from fraudulent conduct do not
necessarily need to be suffered by the person who relied upon the misstatement. See,
e.g. DeHart v. DeHart, 2012 IL App (3d) 090773, ¶ 33, aff’d, 2013 IL 114137
(recognizing potential claim for intentional interference of expectancy where
testator’s new wife fraudulently destroyed a copy of a will that would have delivered

27

assets to testator’s son; the person who relied on the fraud was not the one who
suffered the damages). Similarly, here, the Lipari children’s claim for intentional
interference with an expectancy would lie if they could show that Edward Jones relied
on D’Agnolo’s misstatements and delivered the proceeds of the accounts to D’Agnolo,
at the Lipari children’s expense. D’Agnolo is not entitled to judgment as a matter of
law on the claim that she tortiously interfered with their expectancy in the proceeds
of the Edward Jones account, insofar as that claim is based on the underlying tort of
fraud.
Much of the same circumstantial evidence could be used to show that
D’Agnolo’s conduct amounted to undue influence. D’Agnolo had a motive and
opportunity to exert an “improper urgency of persuasion of David,” in such a way that
“destroy[ed] [David’s] freedom.” DeHart v. DeHart, 2013 IL 114137, ¶ 27. In addition
to that circumstantial evidence, David was on medication and may have been in a
weakened state, unable to resist pressure from his fiancé or unable to understand the
extent of the changes being made to his inheritance plan. See [60] ¶ 34; [59-2].
D’Agnolo is not entitled to judgment as a matter of law on the claim that she
tortiously interfered with the Liparis’ expectancy in the proceeds of the Edward Jones
account, insofar as that claim is based on the underlying tort of undue influence.
4.

There is Insufficient Circumstantial Evidence to Support the Rest
of the Lipari Children’s Claims

There is insufficient evidence in support of the Lipari children’s claims that
Sullivan interfered with the Edward Jones account at all—let alone that she did so
tortiously. She neither prepared the change of beneficiary forms, [60] ¶ 25, nor signed
28

them, [60] ¶ 26, and presented testimony that she was not there when the forms were
executed and does not know who filled them out, how they were filled out, or anything
else about them. [57-2] 191:8–19. The Lipari children do not argue that Sullivan
fraudulently induced (or unduly influenced) David into making the changes.
There is also insufficient circumstantial evidence to support the Lipari
children’s claims that D’Agnolo interfered with the Protective Life insurance policy
in a way that was tortious. Sullivan, not D’Agnolo, prepared the forms. [60] ¶ 23.
David, not D’Agnolo, purportedly signed them. [60] ¶ 24. The Lipari children have
not alleged or argued that D’Agnolo caused this change to be made, whether by
unduly influencing David or by fraudulently inducing either Sullivan or David into
making the changes. They have also not produced sufficient circumstantial evidence
to support such an allegation. And because I find that there is also insufficient
evidence of the existence of a civil conspiracy (discussed below), Sullivan’s actions
cannot form the basis of D’Agnolo’s liability.
The children’s claim that Sullivan tortiously interfered with the Protective Life
policy is even less convincing. Sullivan had no motive to interfere with that policy, as
she would not inherit any of David’s estate regardless of whether the last-minute
changes were effective or not (or at least, if she did have such a motive, the Lipari
children have neither argued that such a motive existed, nor produced any evidence
suggesting such a motive existed). The circumstantial evidence is too weak to support
a judgment in the Liparis’ favor.

29

Similarly, there is insufficient circumstantial evidence in support of the theory
that D’Agnolo and Sullivan committed the tort of conversion. It is true that they made
an unsupervised visit to David’s apartment, [57-2] 172:18–176:20, that the ensuing
chain-of-custody for David’s personal effects has many broken links, [60] ¶ 31; [57-4]
295:24–305:5; [57-2] 172:18-178:7; [57-1] at 10–15, and that, ultimately, the Lipari
children claim that some of their property remains missing. [60] ¶ 31. But the Lipari
children have failed to identify a single piece of property that they know is missing;
their response to Sullivan and D’Agnolo’s motion for summary judgment makes only
vague assertions that are insufficient to meet their burden here.12 Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). (And, as explained below, the Lipari children’s claim
for conversion fails because they have neither alleged, nor produced evidence tending
to show, that they refused a demand for the property allegedly converted.)
The rest of the Lipari children’s arguments attempt to create a genuine dispute
where none exists. For instance, both sides disagree about whether the evidence
shows that David signed the change-of-beneficiary forms, [57] at 4–5; [59] n. 2, but
the Lipari children fail to raise sufficient evidence to show that a reasonable jury
could conclude in their favor at trial; they simply decline to admit that David signed
the forms and leave it at that. See, e.g., [60] ¶ 24. The Lipari children also make much
of the tension between Sullivan’s decision to rely on her durable power of attorney

The agreement filed in In the Matter of the Estate of David M. Lipari does appear to
establish that none of David’s personal property remains outstanding—and suggests that the
Lipari children may have trouble proving as much at trial—but also explicitly precludes using
the agreement to establish that point here. [57-1] at 19.
12

30

and her decision to, nonetheless, claim that she also acted pursuant to David’s
purportedly lucid and informed instructions. [59] at 7. But Sullivan only relied on
that form when making the change to the North American insurance policies, see [60]
¶ 21, and the proceeds from both of those policies have already been paid to the trust
and are no longer at issue. [60] ¶ 22. The Lipari children have failed to produce
sufficient evidence to raise a genuine dispute about whether any of the changes to the
Protective Life insurance policy constituted tortious conduct. They also failed to
produce sufficient evidence to raise a genuine dispute about whether Sullivan’s
conduct was tortious with regard to the Edward Jones and University of Illinois
accounts. Sullivan and D’Agnolo are entitled to judgment as a matter of law on the
Lipari children’s claims with regard to Sullivan’s and D’Agnolo’s roles in the changes
that were made to the Protective Life insurance policy, Sullivan’s role in changing
the beneficiaries to the Edward Jones, and both Sullivan and D’Agnolo’s alleged role
in the conversion of the Lipari children’s property.
C.

Civil Conspiracy

In order to prove their civil conspiracy claim, the Lipari children must show
that Sullivan and D’Agnolo together, “by some concerted action,” knowingly and
intentionally reached an agreement to commit an “overt tortious or unlawful act” “for
the purpose of accomplishing . . . an unlawful purpose or a lawful purpose by unlawful
means.” Fritz v. Johnston, 209 Ill.2d 302, 317 (2004); McClure v. Owens Corning
Fiberglas Corp., 188 Ill.2d 102, 133 (1999).13

Sullivan and D’Agnolo argue that no claim for conspiracy can lie because the Lipari
children failed to prove any underlying tort claim that might form the basis for the
13

31

The Lipari children point out that civil conspiratorial liability is often
established “from circumstantial evidence and inferences drawn from evidence,
coupled with common-sense knowledge of the behavior of persons in similar
circumstances.” Adcock v. Brakegate, Ltd., 164 Ill.2d at 54, 66 (1994).
While the Lipari children are right as a general matter, they still must have
some evidence to support their contention that Sullivan and D’Agnolo “worked
together.” See [59] at 9–10. As Sullivan and D’Agnolo chronicle in their reply, most of
the circumstantial evidence presented in support of the Lipari children’s conspiracy
claim does not even tend to suggest the existence of an agreement. [70] at 13–15. The
rest is so weak that it could not support a reasonable jury finding in their favor. For
instance, the fact that there were “insurance papers and [a] computer” in the hospital
room with Sullivan and D’Agnolo, [57-2] 89:1–7; [57-4] 193:9–195:8, and the fact that
the two of them (apparently) determined that those papers were not responsive to the
Lipari children’s discovery requests, [57-1] at 10–15, is at most circumstantial
evidence that they had in their possession a few items that might have made it easier
for them to reach an agreement. But it does not allow an inference that an agreement
was reached. The taped recordings submitted and cited by the Lipari children, [74];
[59-7], document conversations between David, Sullivan and representatives from
various insurance companies; they do not even mention D’Agnolo, let alone suggest
that Sullivan and D’Agnolo were working together.

conspiracy. [57] at 6–7. But as discussed above, at least a few of the Lipari children’s claims
rest on sufficient circumstantial evidence from which a reasonable jury could conclude that
tortious conduct occurred.

32

The Lipari children’s most convincing evidence is their most basic: Sullivan
and D’Agnolo both completed tasks necessary to change the way David’s estate would
be inherited, and D’Agnolo benefited from those changes. But this alone is neither
“compelling” evidence that there was an agreement between Sullivan and D’Agnolo
to disinherit John for D’Agnolo’s benefit (and, apparently, for no additional benefit to
Sullivan), nor is this evidence “inconsistent with any other rational conclusion,”
including the one Sullivan and D’Agnolo advance: that David wanted them to make
the changes and that, naturally, they each undertook small tasks necessary to bring
his wishes into effect. See Weit v. Cont’l Illinois Nat. Bank & Tr. Co. of Chicago, 641
F.2d 457, 463 (7th Cir. 1981) (“when the plaintiff . . . relies on circumstantial evidence
alone, the inference of unlawful agreement rather than individual business judgment
must be the compelling, if not exclusive, rational inference”). Sullivan and D’Agnolo’s
motion for summary judgment as to the Lipari children’s cross-claim for civil
conspiracy is granted.
D.

Conversion

To establish their conversion claim, the Lipari children must show that they
“have an absolute and unconditional right to the immediate possession of the
property.” Cirrincione v. Johnson, 184 Ill.2d 109, 114 (1998).
Illinois courts hold that the beneficiary of a living trust does not have an
absolute and unconditional right to the immediate possession of the funds held in the
trust and, for that reason, is not able to bring a conversion suit on her individual
behalf. Weisberger v. Weisberger, 2011 IL App (1st) 101557, ¶ 56. See also Katz v.

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Belmont Nat. Bank of Chicago, 112 Ill.2d 64, 69 (1986). Similarly, here, the Lipari
children do not have an immediate, absolute and unconditional right to the trust
principal. The Lipari children were not even entitled to withdraw money from the
trust directly into their own accounts until reaching the age of thirty-five—nearly ten
years after David died. [59-1] § 9.05. The David M. Lipari Trust might have such a
right but, because the trust holds the property, the beneficiaries cannot directly sue
Sullivan or D’Agnolo for conversion. This applies to all of the Lipari children’s
conversion claims against Sullivan and D’Agnolo. See [57] at 10–11.
The Lipari children have also failed to marshal evidence in support of a
conversion against Sullivan because they have not produced any evidence tending to
suggest that Sullivan refused a demand to return the paintings. Sehnert v. Koenig,
99 Ill.App. 513, 513 (1st Dist. 1902) (where the defendant lawfully possesses the
property in question, “a demand must be made before the action [for conversion] can
be maintained”); Owens-Illinois, Inc. v. Candle Man, Inc., 5 Ill.App.3d 350, 352 (1st
Dist. 1972) (accord). To the contrary, the evidence suggests Sullivan obtained the
paintings lawfully when she, as trustee, and D’Agnolo, as executrix, visited David’s
apartment in order to obtain his personal property as part of their initial effort to
then distribute his property, and that, afterwards, Sullivan intended for the paintings
and wood carving to be distributed to the Lipari children, see [57-2] 179:17–180:1;
181:14–17, but had not returned them yet. If the Liparis made a request, they have
not identified it, and it is their burden to do so. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (the nonmoving party must “make a sufficient showing on an

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essential element of her case with respect to which she has the burden of proof”).
Sullivan and D’Agnolo’s motion for summary judgment on the Lipari children’s claims
against both Sullivan and D’Agnolo for conversion is granted.14
E.

Intentional Infliction of Emotional Distress

In order to state a claim for intentional infliction of emotional distress, the
plaintiff must show three things (Vance v. Chandler, 231 Ill.App.3d 747, 751 (3rd
Dist. 1992)):
First, the conduct involved must be truly extreme and outrageous. Second, the
actor must either intend that his conduct inflict severe emotional distress, or
know that there is at least a high probability that his conduct will cause severe
emotional distress. Third, the conduct must in fact cause severe emotional
distress.
Only conduct that is “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency” qualifies as “truly extreme and outrageous.”
Pub. Fin. Corp. v. Davis, 66 Ill.2d 85, 89–90 (1976) (“liability clearly does not extend
to mere insults, indignities, threats, annoyances, petty oppressions or trivialities”);
Rudis v. Nat’l Coll. of Educ., 191 Ill.App.3d 1009, 1013 (1st Dist. 1989) (“Illinois courts
have essentially restricted the tort of intentional infliction of emotional distress to
those cases in which the defendant’s conduct is so abusive and atrocious that it would
cause severe emotional distress to a person of ordinary sensibilities”). Moreover, the

As an aside, a conversion claim does not require that the defendant currently possess the
property—just that, at some point, the defendant “wrongfully and without authorization
assumed control” over the property. Cirrincione v. Johnson, 184 Ill.2d 109, 114 (1998). See
also Illinois Cent. R. Co. v. Parks, 54 Ill. 294, 295 (1870) (“[w]hile the authorities are in
conflict as to whether trover will lie where the carrier has lost the goods, we apprehend there
is no question where there has been a misdelivery”); Restatement (Second) of Torts § 234
(1965); Barrelett v. Bellgard, 71 Ill. 280, 282 (1874) (nominal damages appropriate where
property returned prior to trial).
14

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emotional distress experienced must be severe. Pub. Fin. Corp., 66 Ill.2d at 90
(“Although fright, horror, grief, shame, humiliation, worry, etc. may fall within the
ambit of the term ‘emotional distress . . . [t]he law intervenes only where the distress
inflicted is so severe that no reasonable man could be expected to endure it”).
Although the question of whether a plaintiff will prevail on a claim for intentional
infliction of emotional distress is “a quintessential question of fact to be resolved by
the trier of fact,” Phillips v. Irons, No. 1-03-2992, 2005 WL 4694579, at *5 (Ill. App.
Ct. Feb. 22, 2005), Illinois courts also dismiss such claims on summary judgment,
where appropriate. See, e.g., Weston v. Advocate Christ Med. Ctr., 2016 IL App (1st)
150935-U, ¶ 21; Schweihs v. Chase Home Fin., LLC, 2016 IL 120041, ¶ 61, reh’g
denied (Mar. 27, 2017).
The Lipari children point to fifteen different instances of conduct that they
assert support a claim for intentional infliction of emotional distress. [34] ¶ 143. Nine
of them fail because, far from being “so extreme in degree, as to go beyond all possible
bounds of decency,” Pub. Fin. Corp., 60 Ill.2d at 90, they describe actions that are
administrative and consistent with ordinary family disputes in the aftermath of an
unexpected death. See [34] ¶ 143(a)–(c) (changing beneficiary forms); ¶ 143(d)
(converting or disposing of property while claiming legal right to do so); ¶ 143(e)
(unnecessarily prolonging process Lipari children were forced to endure to obtain
property, in undescribed ways); ¶ 143(l) (authorizing the release of a document
having to do with property ownership with intent that such release would result in
the denial or delay of payment to the Lipari children); ¶ 143(m) (refusing to provide

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written declination of office of trustee for “extremely unreasonable” period of time);
¶ 143(n) (knowing revocation of declination of office of trustee); ¶ 143(o) (waste and
mismanagement as independent executor of estate, overspending of trust proceeds
for personal benefit, telling Lipari children that money would be taken from trust to
pay for Lipari children’s life insurance policies).
The other six—each having to do with David’s sudden death and ensuing
funeral—are closer to being “beyond all possible bounds of decency.” Pub. Fin. Corp.,
60 Ill. 2d at 90. The three younger Lipari children (Carol, Mary and Paul) allege that
Sullivan and/or D’Agnolo effectively prevented them from visiting their father while
he lay dying in the hospital (and added to their distress by inviting them, then
uninviting them, and then threatening to remove them by force if they tried to
attend). [34] ¶ 143(f). All four Lipari children allege that both Sullivan and D’Agnolo
told them that they could not attend their father’s funeral and that if they tried they
would be forcibly removed, id. ¶ 143(g)–(h), and that both Sullivan and D’Agnolo
undertook efforts to make sure that the Lipari children would not learn about the
location of their father’s funeral or the cemetery where he was buried. Id. ¶ 143(i)–
(k).
Sullivan and D’Agnolo’s testimony paints a somewhat different picture.
Apparently, David’s own brother did not want the Lipari children to attend David’s
funeral. [57-4] 273:9-274:20. It is true that D’Agnolo testified that she refused
subsequent requests to see and/or speak with David prior to his passing because she
learned that, almost immediately after John left the hospital, proceedings had been

37

filed to freeze David’s assets, id. 185:19–186:14, but she never admitted that she did
so in retribution or out of malice. If D’Agnolo reasonably believed that she was
protecting David or acting in accordance with the wishes of David’s family members,
her conduct would not be outrageous. Graham v. Commonwealth Edison Co., 318
Ill.App.3d 736, 746 (1st Dist. 2000) (“[a] reasonable belief that his objective was
legitimate . . . . is a substantial factor in evaluating the outrageousness of the
conduct”).
The Lipari children point to other testimony that they say undermines
Sullivan and D’Agnolo’s version of the events. For instance, they argue that David
had a loving and devoted relationship with his adopted children. See [59] at 13; [593] ¶ 4; [59-4] ¶ 4; [59-5] ¶ 4; [59-6] ¶ 4. The Lipari children point out that D’Agnolo
herself testified that David would reach out to the Lipari children as much as once a
week, [57-4] 61:10–13, that David was a “devoted and loving father,” id. at 148:8–11,
and that David and John expressed love for each other during their final visit
together. Id. 172:9–21.
But while this testimony casts doubt on Sullivan and D’Agnolo’s version of the
events and must be credited, it falls short of being sufficient to convince a reasonable
jury that either D’Agnolo or Sullivan acted maliciously or outrageously. Even if the
Lipari children suffered severe emotional harm, see, e.g., [59-4] ¶¶ 9–14, and even if
the causal connection between the alleged conduct and the alleged harm is obvious
enough, see [59] at 14, there is simply not enough to conclude that the conduct was
malicious or outrageous. The standard is high: “[i]t is not enough that defendant acted
38

with an intent which is tortious or even criminal . . . or even that his conduct has been
characterized by malice or a degree of aggravation which would entitle plaintiff to
punitive damages for another tort.” Sale v. Allstate Ins. Co., 126 Ill.App.3d 905, 918
(1984). Taking the evidence in the light most favorable to the Liparis, D’Agnolo’s
conduct did not cross this high threshold: it was sharp but orderly (she relied upon
hired security officers rather than resorting to more emotionally fraught self-help)
and in accordance with the wishes of at least one other member of David’s immediate
family. At most, Sullivan failed to intervene and prevent D’Agnolo from so acting.
The Lipari children do not raise a genuine dispute about any of these points.
Similar arguments can be made of the claim that D’Agnolo and Sullivan acted
recklessly. Even though “reckless conduct [] will support a cause of action” if “the
actor knows severe emotional distress is certain or substantially certain to result,”
Pub. Fin., 66 Ill.2d at 90, the Lipari children still must put forth evidence showing
that Sullivan and/or D’Agnolo acted recklessly. The evidence that the Lipari children
cite is either irrelevant or tends to show the opposite. See [57-4] 185:19–190:22
(D’Agnolo

had

a

conversation

with

John’s

attorney

following

John’s

departure); 260:20–261:5, 273:9–274:3 (D’Agnolo consulted with her family and some
members of David’s family before deciding whether to allow the children to attend
the funeral); 274:8–274:20; (D’Agnolo excluded the Lipari children from the funeral
because they were estranged and because D’Agnolo did not want to allow them to
“refocus” the service “onto whatever they decided they would want it focused on”);
[57-2] 155:10–16 (Sullivan was thankful that David never found out that John was

39

trying to freeze his funds prior to dying). The Lipari children have failed to produce
evidence sufficient to carry their burden at trial, and D’Agnolo and Sullivan are
entitled to judgment as a matter of law on the emotional distress claims.
IV.

Conclusion
Defendants D’Agnolo and Sullivan’s motion for summary judgment on

plaintiff’s cross-claims, [56], is granted in part, denied in part. The Liparis’ claim that
D’Agnolo tortiously interfered with the proceeds of the Edward Jones account
survives, insofar as that claim is based on the underlying torts of undue influence or
fraud. Sullivan and D’Agnolo are entitled to judgment as a matter of law on all of the
Lipari children’s other claims.

ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: December 17, 2018

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