Durbin v. Citibank USA (In re Estate of Durbin)

2019 IL App (4th) 190199-U

In re Estate of DONALD C. DURBIN JR., Deceased

(DAVID S. DURBIN and RICHARD L. DURBIN, Petitioners-Appellants, v. CITIBANK USA; MBNA AMERICA; BANK ONE, NA; NANCY DURBIN;and PAUL E. PRESNEY, SR., Respondents-Appellees).

NO. 4-19-0199

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

November 15, 2019

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Sangamon County

No. 03P684

Honorable Adam Giganti, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Presiding Justice Holder White and Justice DeArmond concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, concluding that (1) the trial court did not err by denying petitioners' request that the administrator be charged interest, (2) petitioners waived any claim they were entitled to punitive damages, and (3) the award of $500.41 to the estate's attorney was not manifestly erroneous.

¶ 2 Decedent, Donald C. Durbin Jr., died intestate in September 2003, leaving three siblings: respondent Nancy Durbin (Nancy) and petitioners David S. Durbin and Richard L. Durbin (petitioners). In October 2003, the Sangamon County circuit court appointed Nancy as independent administrator of decedent's estate without objection.

¶ 3 In January 2018, petitioners each filed petitions to (1) terminate Nancy as independent administrator pursuant to section 28-4 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/28-4 (West 2016)) and (2) compel an accounting (id. § 28-11). Nancy filed a final accounting in March 2018, and petitioners filed objections in April 2018. Petitioners alleged, in part, that (1) Nancy should be charged interest at the statutory rate of 10% on the fair market value of the assets of decedent's estate, pursuant to section 24-10 of the Probate Act (id. § 24-10) for failing to distribute decedent's estate within two years and (2) Nancy breached her fiduciary duty as administrator.

¶ 4 In November 2018, the trial court entered a written order addressing petitioners' objections, in which the court (1) found that Nancy should not be charged interest and (2) awarded $500.41 to Nancy's attorney. The court additionally dismissed respondents Citibank USA, MBNA America, and Bank One, NA's claims against the estate for failure to prosecute.

¶ 5 Later that month, petitioners filed a motion to reconsider the November order and requested an evidentiary hearing on whether they were entitled to punitive damages in the form of attorney fees. Alternatively, they requested leave to file a petition for relief against Nancy outside of probate. In March 2019, the court denied petitioners' motion in its entirety.

¶ 6 Petitioners appeal, arguing that the trial court erred by (1) not charging Nancy with interest pursuant to section 24-10 of the Probate Act (id.), (2) failing to hold a hearing on whether petitioners were entitled to punitive damages in the form of attorney fees, and (3) awarding $500.41 to Nancy's attorney. We disagree with the contentions and affirm the trial court's judgment.

¶ 7 I. BACKGROUND

¶ 8 A. Letters of Administration and Inventory

¶ 9 In October 2003, the Sangamon County circuit court appointed Nancy independent administrator of decedent's estate. In November 2003, Nancy filed a petition for letters of administration pursuant to section 9-4 of the Probate Act (id. § 9-4), which estimatedthe value of decedent's estate to be $55,000. Between January and April 2004, respondents Citibank USA, MNBA America, and Bank One, NA, filed claims against decedent's estate for $842.88, $2093.10, and $2176.47, respectively. Discover Financial Services, Inc., who is not a party to this appeal, filed a claim in December 2003 against decedent's estate for $1913.32. Respondents Citibank USA, MNBA America, and Bank One, NA, do not appeal the trial court's dismissal of their claims against the estate for failure to prosecute.

¶ 10 In November 2004, Nancy filed an inventory with the court, listing decedent's assets, which totaled $13,761.79. The assets were the following: (1) Town & Country Bank of Springfield savings account: $12,248.69; (2) A.G. Edwards & Sons account: $1244.82; (3) one Series E and two Series EE savings bonds in the amounts of $171.02, $49.34, and $47.92, respectively; (4) 1992 Ford Explorer van; (5) 1968 Ford pickup truck; (6) 1971 Ford F-250 pickup truck; and (7) miscellaneous personal effects and wearing apparel. The inventory indicated that the 1992 Ford Explorer van, 1968 Ford pickup truck, and the 1971 Ford F-250 pickup truck were all in poor condition or inoperable, and therefore had no resale value. The miscellaneous items were listed as having "nominal" value.

¶ 11 B. Petitions To Terminate and Objections to Final Account

¶ 12 In January 2018, petitioners each filed petitions to (1) terminate Nancy as independent administrator pursuant to section 28-4 of the Probate Act (id. § 28-4) and (2) compel an accounting pursuant to section 28-11 of the Probate Act (id. § 28-11).

¶ 13 On March 8, 2018, Nancy distributed $853.00 to each of the petitioners and $853.83 to herself. On March 9, 2018, Nancy pro se filed a final account of decedent's estate. The account listed $15,198.52 in inventory, $15,671.67 in disbursements, $571.37 in deposits,and $7023.60 in unpaid debts. Nancy requested the estate be closed upon approval of the final accounting.

¶ 14 On April 13, 2018, petitioners filed objections to the final account and to the closing of decedent's estate. Specifically, petitioners alleged Nancy failed to (1) file a verified report, (2) account for certain assets, (3) account for certain receipts and disbursements, (4) timely administer the assets of the estate, and (5) propose distributions in accordance with the law. Petitioners claimed that Nancy previously stated the value of decedent's estate was approximately $55,000, but a year later stated the value of the estate was only $13,761.79. Petitioners requested the final account not be approved and the estate not be closed until Nancy corrected these errors.

¶ 15 On April 23, 2018, Nancy filed an amended final account with the assistance of counsel. The final account listed $7023.60 in unpaid debts, $16,573.75 in receipts, and $16,627.34 in disbursements for a total negative balance of $7077.19. Nancy reported that following her appointment, she "filed three years of back income tax returns for the decedent with the Internal Revenue Service, negotiated the payment of taxes, penalties, interest and late fees; and that the tax liability, together with the burial expense and credit card liabilities *** far exceeded the assets." The final account additionally indicated Nancy paid bills to the Sangamon County Farm Bureau and United States Department of Agriculture and provided for funeral and burial expenses. Earlier in 2018, she sold decedent's Comcast stock, which was separate from the Comcast stock in decedent's AG Edwards account, and obtained $238.45 in unclaimed property from the State of Illinois. Finally, she reported she had taken no fee for services rendered, was aware of no further assets to marshal, and therefore believed the estate was insolvent and should be closed.

¶ 16 On May 17, 2018, Nancy filed a response to petitioners' objections, arguing she cured each of their objections by filing the verified final account on April 23, 2018, which accounted for all assets, receipts, and disbursements. Nancy asserted that the initial petition for letters of administration that she filed in 2003, which stated the value of the estate as approximately $55,000, was merely an estimate based upon the information available to her prior to being appointed administrator. Nancy further argued that the March 2018 distributions to petitioners and herself should be recovered by the estate so that the funds could be made available for payment of creditors' claims and administration expenses.

¶ 17 On August 15, 2018, petitioners filed a reply to Nancy's response. In the reply, petitioners argued that Nancy should be charged interest at the statutory rate of 10% on the fair market value of the assets of decedent's estate pursuant to section 24-10 of the Probate Act (755 ILCS 5/24-10 (West 2016)) for failing to distribute decedent's estate within two years. Petitioners again argued that Nancy failed to file a verified report, account for all assets, receipts, and disbursements, and had not properly provided for payment of claims against the estate. Petitioners further requested that Nancy be held personally liable to the estate for the value of certain assets that she failed to administer in a timely manner.

¶ 18 A docket entry dated September 5, 2018, stated the case was called for a hearing on petitioners' "response to Administrator's Response to Objection of Final Account." The matter was "continued and reset for Phone Conference on 10/05/2018 ***."

¶ 19 On September 13, 2018, petitioners filed a motion for substitution of attorneys, which the trial court granted, and their new attorney filed his entry of appearance.

¶ 20 C. Stipulated Issues and Final Arguments

¶ 21 On September 19, 2018, Nancy filed a written argument on petitioners' final objections to the final account. Nancy stated that at the hearing on September 5, 2018, the parties entered into a stipulation in open court that there were six remaining objections to the final accounting. According to Nancy, the six issues were as follows: (1) Comcast stock and dividends, (2) Series E and EE savings bonds, (3) three vehicles and their disposition, (4) decedent's income tax returns, (5) failure to distribute the estate within two years, and (6) Nancy's administrator and attorney fees. There is no report of proceedings or bystander's report in the record memorializing the September 5, 2018, hearing or the parties' stipulation as to the six remaining objections to the final accounting.

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