author: JUSTICE UNVERZAGT

text:
    WILLIAM JAGIELNIK, Plaintiff-Appellant, v. THE BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF THE VILLAGE OF MUNDELEIN et al., Defendants-Appellants.
    Second District
    No. 2—90—0819
    Opinion filed April 4, 1991.

      Stanley H. Jakala, of Berwyn, for appellant.
    Charles E Marino, of Chicago, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, William Jagielnik, appeals the dismissal of his complaint for administrative review. The defendants (referred to collectively hereafter as the Board) moved for dismissal of the complaint under section 2 — 619 of the Civil Practice Law, alleging the circuit court of Lake County did not have jurisdiction of the cause because Jagielnik’s complaint was not taken from an “administrative decision” as defined in section 3 — 101 of the Administrative Review Law. (Ill. Rev. Stat. 1989, ch. 110, pars. 2—619, 3 — 101.) We affirm the circuit court’s dismissal of the complaint.

Jagielnik applied to the Board for a 50% not-on-duty disability pension as provided for in section 3—114.2 of the Illinois Pension Code (the Code) (III. Rev. Stat. 1989, ch. 108½, par. 3—114.2). That section provides for a disability pension of 50% of the officer’s salary at the time of his or her suspension of duty or retirement if the officer has become physically or mentally disabled “as a result of any cause other than the performance of an act of duty.” At the time he petitioned, Jagielnik had charges of misconduct pending against him before the Mundelein Board of Fire and Police Commissioners and criminal charges pending against him in the circuit court of Lake County, Illinois.

The charges before the Board of Fire and Police Commissioners alleged that Jagielnik, while in uniform and on duty, committed various offenses against a young woman, J.M., in February, March, and April 1989. Allegedly, Jagielnik grabbed J.M.’s breasts on one occasion and made lewd and suggestive remarks to her on several occasions. Also, allegedly, Jagielnik ordered J.M. to meet him at a specific time and place and be friendly with him or he would cause her problems with the Village of Mundelein and cause traffic citations to be issued against her. The Board of Fire and Police Commissioners did not hear the matter because Jagielnik resigned as a police officer on June 2, 1989.

The charges pending before the circuit court of Lake County, Illinois, involved the same conduct as the charges before the Board of Fire and Police Commissioners. Pursuant to a negotiated plea agreement, the State’s Attorney nol-prossed two felony counts, and the court found Jagielnik guilty of the remaining count, a misdemeanor battery. The court imposed a $500 fine and a one-year term of probation conditioned upon psychiatric counseling. The factual basis for the plea was stipulated to be as follows:

“If the matter came to trial, [J.M.] would testify that she was an employee of the White Hen Pantry in Mundelein, Lake County, Illinois; and in mid-March 1989, [Jagielnik] came into the Pantry and after some comments which she construed as having sexual undertones, he asked to use the phone, at which time she gave him permission; and he, in passing in close proximity to her, did touch her breasts in a manner which she found insulting and provoking; he did make actual physical contact with her breasts, and this all happened in Lake County, Illinois.”

Along with his petition to the Board for a disability pension, Jagielnik submitted a written report dated May 27, 1989, from Dr. Marlene E. Casiano, a psychiatrist, who stated that Jagielnik was suffering from severe symptoms of depression and that “the precipitant for his severe depressive reaction was his being accused of making sexual advances to a woman at a grocery store.”

At the request of the Pension Board, three other psychiatrists examined Jagielnik. All three were of the opinion that Jagielnik was mentally disabled for service as a police officer and that his disability was the consequence of being accused of making sexual advances to a woman at a grocery store and the events which followed. The three psychiatrists also stated that Jagielnik had no history of a prior mental illness nor was there any evidence that he might have had a prior mental illness.

The Board determined that there was no issue with respect to Jagielnik’s being mentally disabled. However, since all of the psychiatrists reported that Jagielnik’s mental disability was the result of accusations of sexual conduct toward J.M., it felt this raised a question whether such accusations were true or false. If the accusations were true, then Jagielnik’s mental disability “could be the result of his own intentionally committed wrongful act.”

The Board set the matter for a public hearing on September 14, 1989, at which time the Village and Jagielnik would be permitted to present evidence relative to the issues the Board felt were presented. Inter alia, those issues were: whether section 3 — 114.2 of the Code incorporates the public policy which precludes a wrongdoer from profiting from his intentionally committed wrongful act; whether Jagielnik, in fact, committed one or more wrongful acts; whether, if he did commit one or more wrongful acts, his present mental disability resulted from such wrongful act or acts and the events which followed; and whether, if he did not commit any wrongful act or acts, his mental disability resulted from the performance of an act of duty.

Following a continuance, the Board convened, and Jagielnik moved, first, for another continuance and, second, to bar the hearing altogether based on certain legal grounds contained in a memorandum filed with the motion. The supporting affidavit of Dr. Marlene Casiano which was appended to Jagielnik’s continuance motion was described in the Board’s interim ruling. Dr. Casiano stated in her affidavit that Jagielnik would be unable to participate as a witness in the proceeding without risk of aggravating his stress-related disorder and, in Dr. Casiano’s opinion, his present condition would not enable him to testify for at least three months.

The crux of Jagielnik’s motion to bar the hearing, also described in the Board’s interim ruling, was that section 3 — 114.2 of the Code (not-on-duty disability pension) does not incorporate the public policy precluding an intentional wrongdoer from profiting from his wrongful act. He relied on section 3 — 147 of the Code (providing that no benefits will be paid to any person convicted of any felony relating to or arising out of or in connection with his or her service as a police officer) in support of his argument that he can lose his disability pension benefits only if he is convicted of a service-related felony.

The Board granted Jagielnik’s request for a further continuance, subject to an examination by psychiatrist Dr. Alan N. Miller to evaluate Jagielnik’s ability to testify at the hearing on the matter. It also established a briefing schedule on Jagielnik’s motion to bar a hearing.

Dr. Miller’s report to the Board was that Jagielnik had improved considerably since the doctor last saw him and Jagielnik had, in fact, found a new job. Dr. Miller further reported that Jagielnik was at risk of relapse should he be forced to testify at a public hearing, but that, in the doctor’s opinion, Jagielnik was fully capable of preparing written statements on the matter.

The attorneys for both parties advised that they did not wish to make oral argument on the motion to bar a hearing and would stand on their briefs. They also agreed that the Board should take the motion to bar the hearing under advisement and issue a ruling by mail.

The Board denied Jagielnik’s motion to bar a hearing in its interim ruling dated December 12, 1989, determining, inter alia, that the language of section 3 — 147 of the Code did not thereby exclude reasons other than a felony conviction for a police officer’s losing his or her disability pension benefits. Expressing its belief that the Village and Jagielnik should have an opportunity to present evidence on the matter of the charges against Jagielnik, and, in light of Dr. Miller’s opinion of Jagielnik’s fragile emotional state and Jagielnik’s probable ability to prepare a written statement, the Board continued the cause to February 8 and requested the parties to submit within 30 days “(1) any authorities on whether or not [the] Board may conduct a hearing closed to the public and (2) any authorities on whether or not [the] Board may accept Mr. Jagielnik’s testimony given at a deposition or accept an affidavit *** in lieu of his testimony at a hearing” or any other suggestions the parties might have as to how to resolve the problem.

On January 16, 1990, Jagielnik filed his complaint for administrative review of the Board’s December 12 interim ruling. Following the submission of memoranda of law and argument by the parties, the trial court concluded the Board’s interim ruling contemplated further proceedings and, as such, Jagielnik’s complaint for administrative review was not an appeal from a ruling which terminated the proceedings before the administrative agency. Jagielnik then brought the instant appeal, contending (1) the Board’s order was a final order subject to administrative review and (2) a mental disability resulting from the commission of a misdemeanor battery does not bar the awarding of a not-on-duty pension.

In determining the propriety of the dismissal of a complaint, the reviewing court is concerned only with the questions of law presented by the pleadings (Dick v. Peoples Mid-Illinois Corp. (1990), 195 Ill. App. 3d 654, 658; People ex rel. Lee v. Kenroy, Inc. (1977), 54 Ill. App. 3d 688, 690-91) and will affirm if the court’s decision is correct regardless of the reasons assigned by the court for the dismissal (Lasswell v. Ehrlich (1981), 92 Ill. App. 3d 935, 936). Under section 3—148 of the Code, all final administrative decisions of the Pension Board are judicially reviewable under the provisions of the Administrative Review Law, and an “administrative decision” is as defined therein. (Ill. Rev. Stat. 1989, ch. 108½, par. 3—148.) “ ‘Administrative decision’ or ‘decision’ means any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.” Ill. Rev. Stat. 1989, ch. 110, par. 3—101.

Judicial review can only be undertaken where there is a final agency determination. (Taylor v. State Universities Retirement System (1987), 159 Ill. App. 3d 372, 374.) Such a determination is made following “some sort of adversarial process involving the parties affected, where a hearing on controverted facts is held, and ultimately a disposition is rendered by an impartial [fact finder].” (Taylor, 159 Ill. App. 3d at 376.) In the absence of such a final administrative decision, the circuit court lacks jurisdiction to consider the matter. Ill. Rev. Stat. 1989, ch. 110, par. 3—102; Bi-State Development Agency v. Department of Revenue (1990), 205 Ill. App. 3d 668, 672.

As we perceive it, Jagielnik’s complaint for administrative review presents only a challenge to the Board’s denial of his motion to bar the hearing and its decision to proceed to take evidence on the matter. His complaint characterizes the interim ruling as “denying [him] his petition for a 50% disability *** not oil duty pension, when the interim order has denied [his] motion to bar a hearing, thereby resulting in such a denial.”

On its face, the Board’s interim ruling is merely a procedural step in the process of arriving at its “administrative decision.” Jagielnik argues, however, the Board’s designation of its ruling as an “interim” one is not controlling and posits the ruling is a final administrative decision subject to judicial review in that it fixed the rights and liabilities of both himself and the Board. That is, all the prerequisites to his receiving a not-on-duty disability pension were met: (1) based on the evaluations of the three psychiatrists selected by it, the Board found that, as a result of a cause not arising out of an act of duty, he was mentally disabled to such a degree that he could no longer serve as a police officer; (2) his application for the disability pension was timely; (3) he was not discharged from the police force; and (4) he has not been “convicted of any felony relating to or arising out of or in connection with his *** service as a police officer” which precludes the payment of benefits provided under section 3—147 of the Code. Moreover, the hearing scheduled by the Board is not for the limited authorized purpose of receiving “other evidence of disability” as provided in section 3—115 of the Code. Thus, Jagielnik argues, the ruling should be viewed effectively as having terminated the proceedings.

The Board argues its interim ruling should be regarded as an interlocutory order only since it contemplates an evidentiary hearing prior to the rendering of a final decision on Jagielnik’s application for a mental disability pension. Authority to hold such a hearing, it argues, is derived from its power under section 3 — 136 of the Code to compel witnesses to attend and testify before it “upon all matters connected with the administration of this Article.” (Ill. Rev. Stat. 1989, ch. 108½, par. 3—136.) In light of the further proceedings contemplated, the Board posits there was not yet an “administrative decision” subject to administrative review and the trial court’s dismissal of the cause should be affirmed. We agree.

Jagielnik’s contention that the statement in the Board’s ruling that it determined “there was no issue with respect to [his] being mentally disabled” is conclusive on the issue of his disability is without merit. A case cited by Jagielnik himself refutes the contention. In Caauwe v. Police Pension Board (1989), 184 Ill. App. 3d 482, the trial court’s order affirming the pension board’s denial of a police officer’s application for disability pension due to back injuries was reversed and the cause remanded so that the board could receive certifications of the three doctors as to the police officer’s disability or lack thereof. (Caauwe, 184 Ill. App. 3d at 486.) The police officer there was denied a disability pension after an evidentiary hearing at which the board received reports from its three selected doctors in the form of uncertified, unsworn, unverified, written medical reports. Based on the evidence of these reports, the Board found “these three doctors do not all certify Detective Caauwe’s disability.” 184 Ill. App. 3d at 484.

On appeal, the officer argued that because the doctors failed to certify his disability, or lack of disability, in their medical reports, there was insufficient evidence before the pension board on which to predicate any finding of disability or lack thereof. The court agreed, noting section 3 — 115 of the Code mandates that the three selected physicians are required to furnish the pension board with subscribed and sworn-to certificates of the applicant’s disability. Because the pension board did not require the certificates to be furnished nor did the physicians submit such certificates, the trial court’s affirmance of the board’s denial of the disability pension was reversed and the cause remanded.

In the case at bar, and contrary to Jagielnik’s assertion during oral argument, the manner in which the three doctors “reported” their findings is not evident, and we find no certificates or references to same in the record before us. Based on this record, the Board’s statement here that it determined that “there was no issue with respect to Mr. Jagielnik’s being mentally disabled” cannot be deemed an administrative decision which “terminates the proceedings before the administrative agency.” We note moreover that the Board’s interim ruling specifically contemplates that one of the issues to be determined is whether “[Jagielnik’s] mental disability resulted from the performance of an act of duty.” It is clear, therefore, that no determination has been made as to whether Jagielnik is or is not entitled to a disability pension in the first place, and, secondly, whether the disability is on-duty or not-on-duty related. Ill. Rev. Stat. 1989, ch. 108½, pars. 3—114.1, 3—114.2.

Jagielnik’s additional argument that the Board is limited by section 3—115 to receiving only “other evidence of disability” in further proceedings before it is unsupported by any authority. On its face, section 3—115 shows the Board is not limited to receiving certificates of the police officer’s disability only, but that it “may require other evidence of disability.” (Ill. Rev. Stat. 1989, ch. 108½, par. 3—115; see Batka v. Board of Trustees of the Village of Orland Park Police Pension Fund (1989), 186 Ill. App. 3d 715, 723 n.2.) Other evidence concerning whether the Board will grant or deny the officer’s application for disability pension is not limited by section 3—115 to only “evidence of disability.” (Cf. Caauwe, 184 Ill. App. 3d at 485 (“Once the three certificates were submitted, the pension board was empowered to admit and weigh additional evidence relative to either granting or denying the disability pension request” (emphasis added)).) Further, as pointed out by the Board, it has the power under section 3—136 of the Code to compel witnesses to attend and testify “upon all matters” concerning its administration of the pension fund. (Ill. Rev. Stat. 1989, ch. 108½, par. 3—136.) Acceptance of Jagielnik’s narrow construction of section 3 — 115 would nullify the broad language of section 3—136 and contravene the well-settled -.principle that a statute should be construed so that no word or phrase is rendered superfluous or meaningless. People v. Parvin (1988), 125 Ill. 2d 519, 525; People v. Knop (1990), 199 Ill. App. 3d 944, 951.

We find Jagielnik’s citations to Stec v. Oak Park Police Pension Board (1990), 204 Ill. App. 3d 556, and Hahn v. Police Pension Fund (1985), 138 Ill. App. 3d 206, are irrelevant to the issue of whether the Board’s interim ruling here is an administrative decision which may be judicially reviewed. We also find that Board of Education of Valley View Community Unit School District No. 365U v. File (1980), 89 Ill. App. 3d 1132, is distinguishable. Jagielnik relies on File to support his contention that the instant interim ruling terminated the proceedings despite the fact it did not contain “findings.”

In File, a tenured teacher was dismissed by the Board of Education effective June 30, 1976, and, pending a hearing pursuant to the school code, was suspended without pay. A lengthy 13-day hearing over the course of a nine-month period was held and the filing of post-hearing briefs was completed by July 11, 1977. It was not until May 30, 1978, however, that the hearing officer ruled (1) that File’s dismissal was not for just cause; (2) that she was to be reinstated and, preferably, transferred to a position with new supervisors; and (3) that she was to receive one year’s back pay. The hearing officer explained by letter that his ruling was being made “without explanation” at that time due to his serious health problems and pending heart surgery but that the explanation would follow as soon as he was able to return to work.

On administrative review sought by both parties, the circuit court found the lack of written findings precluded judicial review of the hearing officer’s order, declaring same to be null and void and remanding for a hearing de novo. The circuit court was reversed on appeal; however, the court finding that the hearing officer’s failure to submit written findings in conjunction with his order did not make that order any less a final order. “For all practical purposes, [the hearing officerj’s order *** terminated the proceedings before him, and fixed the rights and liabilities of both the Board and Mrs. File.” 89 Ill. App. 3d at 1136.

Although the court found the order thus was final and subject to judicial review under the administrative review law, it nonetheless found the order not reviewable because the officer’s “bare decision” that File’s dismissal was not for just cause provided no basis upon which a reviewing court might find the decision contrary to, or supported by, the manifest weight of the evidence. (Cf. Fagiano v. Police Pension Board (1984), 123 Ill. App. 3d 963, 982-83 (unlike the order in File, city personnel board’s discharge of city employee provided adequate ground for review where hearing officer’s findings adopted by board were sufficient to satisfy questions of jurisdiction, procedural due process, and sufficiency of evidence, coupled with clear and complete record of hearing fully capable of review).) It disagreed that remandment for a hearing de novo was the proper disposition, however, since the order was defective only in that it lacked findings. Accordingly, the cause was remanded to the hearing officer for the purpose of obtaining his written findings, which could then be judicially reviewed.

File is distinguishable from the instant cause in that the order in File at least was dispositive, albeit not reviewable without the hearing officer’s findings. File’s dismissal was found to be “not for just cause.” (File, 89 Ill. App. 3d at 1133.) Here, nothing dispositive of Jagielnik’s right to a disability pension has yet occurred. The Board has neither granted nor denied him a disability pension; it simply seeks to receive more evidence on the question. Undoubtedly because there has been no disposition, Jagielnik has not shown here that he has been prejudiced by an administrative decision of the Board. It is axiomatic that “[a] party seeking reversal has the burden of establishing prejudice.” Bi-State Development Agency v. Department of Revenue (1990), 205 Ill. App. 3d 668, 672.

Because we conclude the Board’s interim ruling is not an administrative decision subject to judicial review under the administrative review law and that the cause properly was dismissed, we have no authority to render what would amount to an advisory opinion on the merits of the issue of whether a mental disability resulting from the commission of a misdemeanor battery bars the award of a non-on-duty disability pension. Consequently, we do not address that issue.

The judgment of the circuit court of Lake County dismissing the plaintiff’s complaint for administrative review is affirmed.

Affirmed.

DUNN and GEIGER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    EDWIN CLAIRE DIAMOND et al., Plaintiffs-Appellants, v. GENERAL TELEPHONE COMPANY OF ILLINOIS, Defendant-Appellee.
    Second District
    No. 2—90—0624
    Opinion filed April 3, 1991.

      Gallagher & Joslyn, of Oakbrook Terrace (Mark C. Amador, of counsel), ' for appellants.
    D. Kendall Griffith and Bruce L. Carmen, both of Hinshaw & Culbertson, of Chicago (David H. Levitt, of counsel), for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiffs, Edwin Claire Diamond, Leona Diamond and their insurer, Rockford Mutual Insurance Company (hereinafter collectively referred to as the Diamonds), appeal the dismissal with prejudice of their eight-count complaint against the defendant, General Telephone Company of Illinois, presently known as GTE North, Inc., and hereafter referred to as GTE. (Ill. Rev. Stat. 1989, ch. 110, par. 2—615.)

The Diamonds contend the court erred in dismissing their complaint in that it stated valid causes of action for implied indemnity, violation of the Illinois Public Utilities Act (Ill. Rev. Stat. 1989, ch. 111⅔, par. 1—101 et seq.) and tortious conduct creating exposure to litigation. They further contend the court erred in dismissing all counts with prejudice without hearing any evidence. We affirm.

Edwin and Leona Diamond owned and farmed a parcel of land in Spring Township of Boone County immediately adjacent to the intersection of Illinois highway 1-90 and Garden Prairie Road. GTE sought an easement on this parcel from the Diamonds. Accordingly, a right-of-way permit given in consideration of $1 and signed by the Diamonds on March 22, 1961, gave GTE “the right, privilege, easement and authority to construct, operate, patrol and maintain its communication lines including the necessary underground cables, wires, conduits, splicing boxes, surface terminals, markers and appurtenances upon, over and across the land.” Pursuant thereto, GTE placed a telephone pole, supported by a single down guy wire, and other associated telephone equipment on the Diamonds’ property.

On the morning of October 11, 1980, Kenneth and Lorelie Smith and two of their children, Karen and Christine, were traveling in their van in a northwesterly direction on 1-90 near the intersection of Garden Prairie Road. At the same time, Randy Hatcher, an employee of Signal Delivery Service, Inc., was driving a tractor trailer rig southeasterly on 1-90. As the Signal Delivery truck and the Smith van approached each other going in opposite directions, the GTE telephone pole placed on the Diamond property leaned over, presumably as the result of its guy wire failure, and the cable attached thereto which stretched across 1-90 to another GTE pole sagged to a height of approximately six to seven feet above the highway. The Signal Delivery truck struck the sagging cable and, after it was pulled taut, the pole placed on the Diamond property broke and was slung across the highway at a high rate of speed. The pole struck the Smith van, killing Kenneth and Lorelie Smith, in the presence and view of their children.

As a result of the October 11 accident, a multicount complaint was filed in the circuit court of Cook County, Illinois, captioned Morton et al. v. GTE et al., case No. 81—L—2162 (referred to hereafter as Morton v. GTE or the underlying cause). The complaint alleged specific acts of negligence as to GTE, the Diamonds, and Signal Delivery Service. Pertinent here, it was alleged as to the Diamonds that they carelessly and negligently plowed their land adjacent to the telephone pole and supporting guy wire, that they permitted the plow blade to come in contact with the guy wire and that they severed the guy wire connecting the utility pole to the ground. As to GTE, it was alleged that it carelessly and negligently maintained and controlled the pole, failed to provide guy wires of sufficient number and strength to secure the pole, failed to provide reasonable and adequate warnings of the location of the guy wire to persons likely to be plowing the land in proximity to the guy wire, failed to provide a reasonable or adequate guard or protective device for the guy wire to protect it from being severed or damaged, failed to place its equipment underground, allowed the pole to remain at the location in a rotted condition, failed to conduct reasonable inspections of the pole and associated equipment, and failed to use a pole of sufficient size and strength to withstand the eventuality of its guy wire being severed. It was also alleged that the said pole was situated on the property of the defendants, Edwin C. Diamond and Leona Diamond.

In October 1985 an additional two-count complaint for damages caused to Signal Delivery Service’s track was filed against GTE and the Diamonds by Signal Delivery Service and an affiliate corporation under the caption Leaseway Transport Corp. et al. v. GTE et al., No. 85—LM—3665 in Du Page County.

The Diamonds were informed by their liability insurance carrier, Rockford Mutual Insurance Company, that it would not be liable for any damages in excess of the $300,000 policy limit. In view of their potential exposure to liability far in excess of the policy limit, the Diamonds retained their own personal counsel.

Early in 1984, Rockford Mutual began a concerted effort to reduce or eliminate the exposure of its insureds. In response to these overtures, the plaintiffs’ attorney in Morton v. GTE offered to provide a complete release to GTE and the Diamonds in return for a payment from GTE of $1 million and a payment on behalf of the Diamonds of $250,000. Although the Diamonds and Rockford Mutual accepted this offer, GTE refused it. After further negotiations, the plaintiffs’ attorney in Morton v. GTE agreed to a conditional covenant not to execute judgment in consideration of receipt of the Diamond’s $300,000 policy limit. The effect of this agreement was that the Diamonds would remain parties to the litigation, but they would be liable for a judgment therein only if they were the sole parties found guilty at trial. The agreement included a “non-admission of liability” clause. The Diamonds subsequently settled the Signal Delivery Service Du Page County litigation for $500. They paid this amount personally inasmuch as their liability insurance policy limit had been exhausted.

On September 9, 1987, the Morton v. GTE case was resolved in the circuit court of Cook County. The jury returned verdicts in favor of Edwin Claire Diamond, Leona Diamond and Signal Delivery Service. It found against GTE, assessing actual damages of $16 million and punitive damages of $20 million.

Thereafter, on March 14, 1989, the Diamonds filed the instant complaint in the circuit court of Kane County. In addition to recounting the facts of the underlying cause as noted in the preceding paragraphs, it was alleged that by virtue of the execution of the 1961 right-of-way permit a pretort relationship existed between the Diamonds and GTE. The complaint also asserted that, in comparison with the Diamonds, GTE had the greater or primary duty to maintain the subject property, to inspect and test its poles, wires and associated equipment, and to maintain and protect the down guy wire which helped support the pole placed on the Diamond property. The complaint also asserted that by virtue of the doctrines of res judicata and collateral estoppel, the major, active and primary fault of GTE and the lack of fault of the Diamonds had been conclusively established by the Cook County verdicts.

Counts I and II of the complaint sought implied indemnity for the Diamonds from GTE for its negligent repair and maintenance of the easement property and for its wilful and wanton failure to maintain the easement property. Count III sought recovery under section 5—201 of the Illinois Public Utilities Act for GTE’s violation of Illinois Commerce Commission General Order 160, and count IV sought recovery for GTE’s tortious conduct which exposed them to litigation. The Diamonds sought indemnity for their $500 settlement with Signal Delivery and for the $1,400 which they paid as legal fees in Morton v. GTE. They also sought an award for the embarrassment, mental anguish, humiliation and apprehension they suffered due to their exposure to litigation caused by GTE’s tortious conduct. Counts V, VI, VII and VIII alleged the same causes of action against GTE by Rockford Mutual on its own behalf and as subrogee of Edwin and Leona Diamond. Rockford Mutual sought indemnity in the amount of $390,250.70 for its policy limit payment and legal fees in Morton v. GTE. It also sought an award for its exposure to litigation caused by GTE’s tortious conduct.

We consider first whether the court’s dismissal of the implied indemnity counts (counts I, II, V and VI) was proper. We are mindful that all well-pleaded facts contained in the complaint must be taken as true, and we must draw all reasonable inferences in the Diamonds’ favor. (AMF, Inc. v. Victor J. Andrew High School (1988), 172 Ill. App. 3d 337, 339.) We are mindful also that, in the absence of an indication of the basis for the court’s decision, we may affirm the court’s dismissal upon any of the issues raised in GTE’s motion to dismiss. Martin-Trigona v. Bloomington Federal Savings & Loan Association (1981), 101 Ill. App. 3d 943.

In its motion to dismiss the complaint and its memorandum in support thereof, GTE asserted that all counts of the complaint were premised on the theory of active-passive implied indemnity, which was abolished by the Illinois Supreme Court in Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26. GTE further asserted that, having settled with the plaintiffs in Morton v. GTE, the Diamonds were barred from seeking indemnity by the supreme court’s decision in Thatcher v. Commonwealth Edison Co. (1988), 123 Ill. 2d 275, and Van Berkum v. Christian (1988), 175 Ill. App. 3d 62, which relied on Thatcher. GTE additionally argued the Diamonds’ complaint shows they do not fall within the class of persons intended to be protected by the Illinois Public Utilities Act, and no court has recognized a cause of action which allowed recovery for tortious conduct creating exposure to litigation.

The Diamonds contend GTE’s arguments were erroneous and should not have been accepted by the trial court. They contend Allison did not abolish all forms of implied indemnity; that the pretrial settlement in Thatcher is distinguishable from the instant covenant not to execute judgment; that public policy favors the continued use of implied indemnity; that the Public Utilities Act provides a remedy for any person or corporation “affected” by the violation of the Act; and Illinois courts should recognize a cause of action for tortious conduct creating exposure to litigation.

In Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, an owner and a subcontractor (the third-party plaintiffs) were sued under the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.). They in turn alleged that the general contractor (the third-party defendant) on the project was liable to indemnify them as the result of their qualitative difference in liability to plaintiff. The general contractor responded that the passage of the Contribution Act in 1978 abolished all forms of implied indemnity.

With certain exceptions discussed below, the supreme court determined that with the abolition of contributory negligence, the adoption of comparative negligence in Alvis v. Ribar (1981), 85 Ill. 2d 1, and the enactment of “An Act in relation to contribution among joint tortfeasors” (the Contribution Act) (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.), the doctrine of active-passive implied indemnity no longer was a viable doctrine for shifting the entire cost of tortious conduct from one tort-feasor to another.

Largely in response to the harsh rule which prohibited contribution among jointly negligent tort-feasors, the concept of active-passive implied indemnity evolved as an extension of the doctrine which implied a contractual right of indemnity in favor of a party liable in law (such as an employer or an owner) who had not contributed to a party’s injury. (See Allison, 113 Ill. 2d at 28-30.) This right of equitable implied indemnity based upon the active-passive fault of the parties ultimately evolved to the extent that indemnity was allowed even in the absence of vicarious liability or any pretort relationship which implied a promise to indemnify simply on the basis that “ ‘degrees of fault must be recognized which will permit indemnification from tortfeasors substantially at fault to those less blameworthy.’ ” Allison, 113 Ill. 2d at 30, quoting Sargent v. Interstate Bakeries, Inc. (1967), 86 Ill. App. 2d 187, 198.

The overgrowth of equitable implied indemnity based on the relative fault of the parties was halted with the adoption of the Contribution Act in 1978 and pure comparative negligence in Alvis. The Contribution Act established a statutory scheme whereby joint tort-feasors could obtain contribution amongst themselves, and, after Alvis, it was clear that the governing principle of comparative negligence — that the costs of accidental injury should be apportioned according to the relative fault of all concerned in the action — was not in harmony with active-passive indemnity which shifts all costs of liability to only one of two or more parties actually at fault.

Rejecting the third-party plaintiffs’ contention in Allison that active-passive indemnity nonetheless was a viable alternative to contribution where there exists a pretort relationship and a qualitative difference between the fault of the tort-feasors, the court noted that suits for active-passive indemnity are, in fact, merely actions for ordinary negligence to recover damages from the indemnitor by an indemnitee whose conduct was “passive,” i.e., not contributorily negligent, or where the indemnitor “squandered the last clear chance.” Allison, 113 Ill. 2d at 33.

"Having adopted comparative negligence and the principles of apportioning rather than affixing liability, not only in Alvis, but also in Skinner [(Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1)] and by the Contribution Act, the need for implied indemnity based upon an active-passive distinction has also evaporated.” Allison, 113 Ill. 2d at 34.

We agree with the Diamonds that Allison did not abolish all forms of implied indemnity. We disagree, however, that their complaint has stated a cause of action for any still-viable form of implied indemnity.

Prefacing its decision that actions premised on active-passive implied indemnity were no longer viable in Illinois, the supreme court stated:

“We note at the outset *** that the claims for indemnification in this case are not premised upon an underlying action regarding a defective product or the would-be indemnitees’ vicarious liability for the conduct of their indemnitor [citation], and we express no opinion on the continued vitality of implied indemnity in those cases. Neither does our opinion in this case affect the validity of explicit undertakings among two or more parties to shift from one party to another the ultimate cost of liability which may arise in favor of a third party.” (Emphasis added.) Allison, 113 Ill. 2d at 27.

Thus, it is clear that Allison did not extinguish all forms of implied indemnity. (Accord Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 253-56 (for questions not finally determined); Thatcher v. Commonwealth Edison Co. (1988), 123 Ill. 2d 275, 279.) Claims for implied indemnification premised on underlying actions regarding defective products, vicarious liability and express contractual obligations were excepted from Allison’s abolition of active-passive indemnity as a viable doctrine for shifting the entire cost of tortious conduct from one tort-feasor to another.

The continued vitality of upstream indemnity based on strict product liability was subsequently restricted in Frazer, however (owner of truck and trailer hitch which came loose from truck who was found liable to injured plaintiff for negligently failing to discover the defect in the hitch may not recover indemnity from the manufacturer based on strict liability because it would be unfair for the negligent owner to shift the entire burden of liability to the manufacturer via indemnity) (123 Ill. 2d 245), and that restriction was further extended in Thatcher (Commonwealth Edison’s settlement with injured plaintiff in underlying suit charging Commonwealth Edison with fault-based theories of negligence and violations of the Structural Work Act barred it under Frazer from seeking indemnity from the manufacturer of the high-pressure hose which caused plaintiff’s injury since the settlement was made to avoid trial and a potential holding of liability) (123 Ill. 2d 245).

Although Allison has not been construed as eliminating the viability of implied nontort indemnification (see People ex rel. Hartigan v. Community Hospital (1989), 189 Ill. App. 3d 206, 216, and cases cited therein), the instant cause cannot succeed as such a claim.

“ ‘Implied indemnity’ is based on principles of restitution: ‘a contract implied in law arising from the legal obligation of an indemnitee to satisfy liability caused by the actions of the indemnitor.’ [Citations.] The fundamental premise for the cause of action is that the indemnitee, although without fault in fact, has been subjected to liability solely because of the legal relationship with the plaintiff or a nondelegable duty arising out of common or statutory law. [Citation.]” (Emphasis added.) Frazer, 123 Ill. 2d at 255.

See also Allison, 113 Ill. 2d at 29.

Assuming, arguendo, the Diamonds fell within either of the classic pretort relationships of owner-lessee or lessor-lessee which have given rise to a duty to indemnify (see Van Slambrouck v. Economy Baler Co. (1985), 105 Ill. 2d 462, 469-70 (noting also the relationships of employer-employee and master-servant)), it is indisputable from an examination of the underlying complaint that the potential liability of the Diamonds in the underlying cause was not based solely on their pretort relationship with GTE or on any express contractual basis, but, rather, it was based on their alleged acts of negligence in plowing too closely to the guy wire and severing it.

The Diamonds argue their complaint seeks the relief recognized in sections 95 and 97 of the Restatement of the Law of Restitution:

“§95. PERSON RESPONSIBLE FOR A DANGEROUS CONDITION.
Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other’s duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuance of the condition.
* * *
§97. NEGLIGENCE FOLLOWED BY ANOTHER’S INTENTIONAL OR RECKLESS MISCONDUCT.
A person whose negligent conduct combined with the reckless or intentionally wrongful conduct of another has resulted in injury for which both have become liable in tort to a third person is entitled to indemnity from the other for expenditures properly made in the discharge of such liability, if the other knew of the peril and could have averted the harm at a time when the negligent tortfeasor could not have done so.” (Emphasis added.) Restatement of the Law of Restitution §§95, 97 (1937).

These sections are inapplicable to the Diamonds. First, the jury determined the Diamonds were not liable to the plaintiffs in the underlying cause; only GTE was found liable. Second, these sections embody the concepts of passive (noncontributory) negligence and last clear chance which the Allison court found merely perpetuated the theory of fault repudiated in Alvis v. Ribar, that is, that one party was ultimately responsible for any injury. Allison, 113 Ill. 2d at 33-34.

The Diamonds contend, nonetheless, that the mere fact they were exposed to liability for their own actions, independent of GTE’s actions, should not deprive them of their right to seek indemnity. They point to Jardine v. Rubloff (1977), 51 Ill. App. 3d 492, Trzos v. Berman Leasing Co. (1967), 86 Ill. App. 2d 176, Blaszak v. Union Tank Car Co. (1962), 37 Ill. App. 2d 12, and Folkers v. Drott Manufacturing Co. (1987), 152 Ill. App. 3d 58, as examples of cases “where numerous defendants and third party defendants, who were ‘charged with their own wrong doing [sic]’ were allowed to seek indemnity.” These cases do not support the Diamonds’ right to seek indemnity. The first three of these active-passive negligence cases were decided prior to Allison, and Folkers did not acknowledge the Allison decision.

The Diamonds’ further argument that the complaint in the underlying cause of action could have been amended to allege that they were merely technically liable to the plaintiffs as owners or occupiers of the land on which the pole was placed is speculative and unsupported by the record. The only liability asserted against the Diamonds in the underlying cause was that based on their own acts of negligence, and the jury found they were not liable to the plaintiffs in the underlying action on this basis. Although their potential liability to the plaintiffs on a premises liability theory would be meaningful in the context of the Diamonds maintaining an action against GTE under the Contribution Act (Joe & Dan International Corp. v. United States Fidelity & Guaranty Co. (1988), 178 Ill. App. 3d 741, 750), it has no saving power in the instant implied indemnity action because the Diamonds have already been found not liable in the underlying cause which was based on negligence, not premises liability. Where the plaintiffs in that underlying cause were not able to recover against the Diamonds, there is no need for the Diamonds to seek indemnity from GTE. See generally Blaszak v. Union Tank Car Co. (1962), 37 Ill. App. 2d 12, 18.

Finally, we reject outright the Diamonds’ argument that public policy favors the continued use of active-passive implied indemnity. By its decision in Allison, the supreme court has found the public policy of this State does not favor such continuation, and this court has no desire or authority to rule otherwise.

We conclude the court did not err in dismissing counts I and V of the Diamonds’ complaint. Inasmuch as the allegations of wilful and wanton misconduct in counts II and VI of the complaint are treated no differently than allegations of ordinary negligence for purposes of apportionment of fault (Yates v. Brock (1989), 191 Ill. App. 3d 358, 361; State Farm Mutual Automobile Insurance Co. v. Mendenhall (1987), 164 Ill. App. 3d 58), we find Allison applies equally to those counts, and they were properly dismissed. In light of this conclusion, we do not consider GTE’s alternate argument that Thatcher also supports dismissal of these counts of the Diamonds’ complaint. Thatcher v. Commonwealth Edison Co. (1988), 123 Ill. 2d 275 (under the Contribution Act, a defendant who settled a personal injury suit which had alleged theories of fault could not recover by implied indemnity from the nonsettling manufacturer of a pressure hose involved in the accident where the settlement was made to avoid trial and a potential holding of liability).

We consider next the Diamonds’ argument that counts III and VII stated a cause of action under section 5—201 of the Public Utilities Act for GTE’s violation of Illinois Commerce Commission General Order 160, which relates to telephone pole safety. (Ill. Rev. Stat. 1989, ch. 111⅔, par. 5—201.) In pertinent part, that section provides:

“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, the public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in the circuit court by any person or corporation.” Ill. Rev. Stat. 1989, ch. 111⅔, par. 5—201.

Count IV of the complaint against GTE in Morton v. GTE was premised on section 73 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111⅔, par. 77), the predecessor of presently codified section 5— 201. By their counts III and VII in the instant cause, the Diamonds alleged GTE is also liable to them under section 5 — 201. They argue the language of the Act “gives the broadest possible remedies to all potential parties seeking recovery,” and that the public utility is subject to liability to any person or corporation “affected” by the violation of the Act.

At the outset, we note that the Public Utilities Act has been held to be in derogation of the common law (Consumers Sanitary Coffee & Butter Stores v. Commerce Comm’n ex rel. Commonwealth Edison Co. (1932), 348 Ill. 615, 618), and, as such, it is to be construed strictly in favor of the persons sought to be subjected to its provisions (Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 220). We further note that the supreme court has stated that “[generally, a person ‘affected’ by a wrongful act is one who shows a direct personal interest in the matter as opposed to one whose interest is merely in common with that of the general public. The issue may be expressed as one of standing.” Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 139.

The Diamonds rely on Churchill in support of their argument that they had standing under section 5 — 201. We find their reliance misplaced. In Churchill, the supreme court held that a spouse may recover under the Act those compensatory damages for which she becomes liable as a proximate result of the defendant’s wrongful act. There, the widow of a train crash victim sought to recover on her own behalf under former section 73 for hospital, medical and funeral expenses and for punitive damages for the railway’s wilful violation of the Act and Rule 205 of the Illinois Commerce Commission. The railway contended no cause of action existed when such violations result in death.

In rejecting that contention, the supreme court noted it had decided in Saunders v. Schultz (1960), 20 Ill. 2d 301, that actions independent of the Wrongful Death Act may be brought against a defendant whose wrongful act resulted in another’s death. The court saw no indication in the Public Utilities Act that persons “affected” by the wrongful act were limited to only those who are physically injured as the proximate result of the wrongful act. Inasmuch as the widow was personally liable under the family expense act (Ill. Rev. Stat. 1955, ch. 68, par. 15) for the medical and funeral expenses of her deceased husband, the court found she had standing under the Public Utilities Act to recover the compensatory damages for which she had become liable as a proximate result of the railway’s wrongful act, and she was entitled to recover punitive damages as well. Churchill, 73 Ill. 2d at 138-41.

Assuming, arguendo, GTE’s liability to the plaintiffs in the underlying cause establishes a violation of Illinois Commerce Commission General Order 160 and, thus, establishes its negligence as a matter of law rather than merely prima facie evidence of negligence (Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 220), the Diamonds must nevertheless show (1) that the violation proximately caused their injury and (2) that the statute was intended to protect a class to which they belong from the kind of injury suffered. Barthel, 74 Ill. 2d at 219-20; Renken v. Northern Illinois Water Co. (1989), 191 Ill. App. 3d 744, 747-48.

The Diamonds’ complaint shows neither of these requirements has been met. Rather, it shows that the injury suffered by the Diamonds— the $1,400 in legal fees and the $500 settlement with Signal Delivery — was proximately caused by the fact that they were charged by the plaintiffs in Morton v. GTE with their own independent acts of negligence in two lawsuits. Clearly, then, the proximate cause was not GTE’s wrongful act. Moreover, as GTE argues, nothing in the statute or the general order suggests that a telecommunications company must keep its poles in a safe condition in order to prevent exposing an independent actor to liability in a subsequent lawsuit arising out of that party’s acts or omissions.

We conclude the court did not err in dismissing counts III and VII.

The Diamonds next contend Illinois courts should recognize a cause of action for tortious conduct creating exposure to litigation. They assert counts IV and VIII of their complaint were designed to allow them to recover for their mental anguish and humiliation resulting from their joinder as defendants in Morton v. GTE. They argue that because it was GTE’s wrongful conduct in the first place which exposed them to litigation which pended for seven years, threatened their financial ruin and the loss of their way of life and, further, because GTE refused to agree to terms which would have settled the cause, it should now be held accountable for all damages flowing from its wrongdoing. They cite Ritter v. Ritter (1943), 381 Ill. 549, and Harvey v. Carponelli (1983), 117 Ill. App. 3d 448, as cases which establish the general principle that damages should be allowed where the natural and proximate consequences of the wrongful act involve a party in litigation with others.

Although we understand the unease which must have been generated in the Diamonds’ lives because of this litigation, we find the trial court correctly dismissed these counts, which purported to state a nonexistent cause of action.

It was the plaintiffs in the underlying cause, not GTE, who drew the Diamonds into the litigation, alleging acts of negligence against them independent of any relationship they had with GTE. The jury found the plaintiffs did not prove the Diamonds’ negligence, but did prove GTE’s. We cannot agree that GTE should now be held responsible for the Diamonds’ travail in defending themselves against allegations that they were negligent.

In Ritter, the court considered whether the plaintiffs, who were successful in their prior suit against the defendant, could then recover damages from him for their time expended, attorney fees and costs. They argued that, because it was the defendant’s wrongful conduct which caused them to engage in litigation with him to secure the return of title to their property, they were entitled to recover the expenses they incurred in enforcing their rights. The court disagreed, noting:

“If the wrongful conduct of a defendant causing the plaintiff to sue him would give rise to an independent tort and a separate cause of action, there would be no end to the litigation, for immediately upon the entry of judgment the plaintiff would start another action against the defendant for his attorney fees and expenses incurred in obtaining the preceding judgment.” Ritter v. Ritter (1943), 381 Ill. 549, 555.

In Harvey, the plaintiff sued the defendants, who were her former attorney and his law firm, for professional negligence in the probate proceedings and settlement of her father’s estate. Plaintiff appeared pro se in the professional negligence suit. By reason of her improper and contumacious conduct during the course of those proceedings, the trial court granted the defendants’ third motion for a mistrial and awarded them $2,108.50 in attorney fees and costs.

Plaintiff challenged this award on appeal, but it was upheld. The defendants argued there that the award was proper because the expenses were incurred as a result of the plaintiff’s wrongful conduct as pro se counsel not as a party plaintiff. Defendants asserted that, as pro se counsel, plaintiff’s “improper and impertinent behavior magnified the costs of the defendants’ defense.” (Harvey v. Carponelli (1983), 117 Ill. App. 3d 448, 454.) The court agreed, noting the general rule in Illinois that one who commits an illegal or wrongful act is liable for all of the ordinary and natural consequences of his act. (Harvey, 117 Ill. App. 3d at 454.) Logically, such “consequences” would include the attorney fees and costs incident to a lawsuit against the wrongdoer.

An exception to the general rule, however, is the “American rule” which states that attorney fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor. The reason behind the rule is “that since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel.” Fleischmann Distilling Corp. v. Maier Brewing Co. (1967), 386 U.S. 714, 718, 18 L. Ed. 2d 475, 478, 87 S. Ct. 1404, 1407.

Although the American rule obviously is not intended to preclude a party from recovering losses directly caused by another party’s wrongful conduct simply because those losses take the form of litigation expenses (Harvey, 117 Ill. App. 3d at 454; Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 372), it cannot be said that GTE's negligence is tantamount to the pro se plaintiff’s intentional wrongful conduct in Harvey, or that the Diamonds’ claimed damages here were losses “directly caused by” GTE’s negligence. The Diamonds’ were charged with their own acts of negligence in the underlying cause, and, in reasonable anticipation of liability, they chose to hire their own personal counsel, to settle with Signal Delivery Service, and to lay their $300,000 liability insurance limit on the line in a pretty good gamble that they would not be the only defendants found liable. The “damages” incurred were the result of the decisions made by the Diamonds as to how best to defend themselves in the underlying actions.

We conclude the court did not err in dismissing counts IV and VIII.

Finally, we find meritless the Diamonds’ contention that the court erred in dismissing all counts with prejudice without hearing any evidence. Muhlbauer v. Kruzel (1968), 39 Ill. 2d 226, does not support a finding that the court so erred.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

DUNN and GEIGER, JJ., concur.


author: JUSTICE WOODWARD

text:
      In re ESTATE OF RAYMOND MARKS, Deceased (Carol Marks Jacobsohn, Petitioner-Appellant, v. Jerrold Marks et al., Respondents-Appellees).
    Second District
    No. 2—90—0351
    Opinion filed April 5, 1991.

      James T. Malysiak and Thaddeus S. Gauza, both of Freeman, Freeman & Salzman, P.C., of Chicago (Lee A. Freeman, Sr., of counsel), for appellant.
    Barry S. Rosen, Joel S. Shapiro, and G. Todd Jackson, all of Sachnoff, Weaver & Rubenstein, Ltd., of Chicago (Lowell E. Sachnoff, of counsel), for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Carol Marks Jacobsohn (Carol), the widow of Raymond J. Marks (decedent), brought this action against Jerrold (Jerrold) and Louis (Louis) Marks, two natural sons of the decedent and Carol.

The decedent died on May 17, 1982, and his will was admitted to probate on June 11, 1982, in proceedings filed in Lake County. The will bequeathed 75% of his estate to Carol and the remainder in equal shares to Jerrold and Louis. The decedent’s will designated Carol and their two sons, Jerrold and Louis, as co-executors of the estate. On April 25, 1989, Carol filed a motion requesting the court to protect her interest in the estate alleging that the estate had been managed solely by Jerrold and Louis and that they undertook substantial transactions involving estate assets without court authority or approval. Pursuant to this motion, Judge McKoski entered an order on April 25, 1989, requiring unanimous approval of the three co-executors or the court’s approval of any transaction involving estate assets.

On December 4, 1989, after extensive discovery, Carol filed a two-count complaint against Jerrold and Louis. Count I sought construction of the decedent’s will on the theory that it was ambiguous in certain respects; count II alleged that Jerrold and Louis, as co-executors, had violated their fiduciary duties to Carol and sought the protection of the court of Carol’s interest in the assets of the estate. Louis and Jerrold filed a motion for a summary judgment as to count I of the complaint, and the trial court granted this motion. The case proceeded to a three-week trial on count II. At the trial’s conclusion, the court entered final orders on March 4, 1990, adopting previous orders bearing dates of January 24, 1990, and February 9, 1990, which essentially denied the relief sought by Carol in count II. The court further held that Carol intended to donate as a gift to Jerrold and Louis the balance between the marital deduction and the amounts Carol received as estate income. In essence, the court held that Jerrold and Louis had not violated their fiduciary duties as dominant executors of the estate.

Due to the voluminous testimony and documentary evidence presented at trial, it is necessary to review the business background of the decedent, Jerrold and Louis prior to decedent’s death and the relationship of Carol and the activity of the two sons from the decedent’s death in 1982 up to the time the present litigation was begun.

Beginning in the 1950’s, decedent, his brother, Jerome Marks, and his brother-in-law, Martin Rosenfield, along with a number of minority investors, began establishing a chain of movie theaters commonly known as M & R Theaters, which eventually became one of the largest theater chains in the Chicago area. Decedent, who was principal officer and prime mover of the business, and his partners also owned interests in a number of other business organizations, such as bowling alleys and car washes. After decedent’s brother, Jerome Marks, died, decedent and Martin Rosenfield distributed the stock of the various M & R corporations to reflect a 50% interest for each of them. Prior to decedent’s death in 1982, he made small annual gifts of M & R stock to Carol, Jerrold, and Louis.

In 1981, decedent engaged attorney Harold Bumstein to draft his will, which was executed on January 8, 1982. The will provided in pertinent part:

“Article 1.01 The expenses of *** the administration of my estate shall be paid out of the principal of my residuary estate * * *
* * *
Article 1.02 All inheritance, estate and succession taxes *** payable by reason of my death *** shall be paid out of and be charged generally against the principal of my residuary estate * * *
* * *
Articles k-Ol(a) and (b):
(a) Gift to Beloved Wife. If my beloved wife survives me for ninety (90) days, I give to her the ‘Marital Bequest’ in a pecuniary amount equal to three-fourths (s/i) the value of my adjusted gross estate as finally determined for federal estate tax purposes less the aggregate value of all interests in property which pass or have passed from me to my beloved wife, except under this Article Four, and which otherwise qualify for a marital deduction. The final determinations made in the proceeding to fix the liability of my estate for federal estate tax purposes shall be conclusive as to the value of the Marital Bequest. Each item of property allocated in kind to the Marital Bequest shall be valued for purposes of satisfying the above described pecuniary amount at the date of distribution to my beloved wife. The Executor’s decision as to the property to be distributed to my beloved wife shall be final and conclusive and binding upon all beneficiaries, provided only that the Executor may not allocate to the Marital Bequest any property with respect to which no marital deduction would be allowed if such property were distributed to my beloved wife or, except to the extent other available assets are inadequate, property which constitutes the right to income in respect of a decedent under Section 691 of the Code or successor provisions. The marital deduction referred to herein is the deduction allowed in determining the federal estate tax for property passing to a surviving spouse under Section 2056 of the Code or successor provisions. The Marital Bequest shall be entitled to the same share of the income of my estate as if the bequest were made in trust.
(b) Residue. The balance of my residuary estate, or all thereof if my beloved wife does not survive me for ninety (90) days shall be distributed to my descendants, per stirpes.”

The will contained no waiver clause with respect to a possible conflict of interest between the co-executors. The practical effect of the will was that Jerrold and Louis were each beneficiaries of 121/2% of decedent’s estate while Carol was given 75%.

Decedent died suddenly on May 17, 1982. His will was admitted to probate and Jerrold, Louis, and Carol were appointed co-executors on June 11, 1982; their oaths of office were filed on June 21, 1982. On March 7, 1983, an inventory of the estate was filed, listing 49 items, including stock in 24 corporations, the bulk of which comprised the business known as M & R theaters. Further, the inventory listed bonds and notes and partnership interests in other entities. The trial court approved additional executor’s bonds on March 18, 1983, and the record also included a State of Illinois inheritance tax return filed on March 15, 1983. The next entry in the record is an attorney’s appearance on behalf of Carol, which was filed on April 25, 1989, together with Carol’s motion requesting the court to protect her interest in decedent’s estate.

Following decedent’s death, Jerrold and Louis, who had been employed by M & R since 1975 and 1971, respectively, took on increased responsibilities with that business. Jerrold’s duties related to managing the financial structure of the various entities, and Louis’s responsibilities related to everyday management and operation of the theaters. Under Jerrold’s guidance during the years 1983 to 1987, M & R expanded the number of screens at established theaters, acquired the Fine Arts and Hyde Park theaters in Chicago and the Evanston Theater, and established the Webster Place and River Run cinema complexes. At the time of his death, decedent held an interest of approximately 35% in those theaters and properties owned by M & R. No equity interests in the movie theaters acquired or built after decedent’s death were transferred to the estate. Jerrold and Louis held between them a 50% interest in the Hyde Park, River Run, Webster Place, and Evanston theaters. They held a 40% interest in the Fine Arts Theater; Carol owned a 10% interest in this theater. The Rosenfield family held the remaining 50% ownership in same. The evidence was contradictory as to whether Carol had any interest in the Hyde Park and/or Evanston theaters. Funding of the expansion and acquisition of the foregoing theaters was accomplished via loans from those M & R businesses in which the estate held a 35% interest at decedent’s death or the use of the assets of said businesses as security for bank loans.

In the years immediately following decedent’s death, the estate, primarily through its attorney, Harold Burnstein, negotiated with the Internal Revenue Service as to the value of the estate’s assets, the majority of which was the stock of numerous closely held corporations that were listed in the inventory. In October 1985, the estate received an IRS closing letter, which valued the estate as of decedent’s death at $4,295,600. After deducting certain assets, which in the interim had been transferred to Carol, the IRS determined that the marital bequest totaled $2,823,269. Late in 1985, Carol married Howard G. Jacobsohn, a certified public accountant.

The evidence further indicated that Carol, Louis, and Jerrold met regularly with members of the Rosenfield family to discuss informally the business of the M & R theaters. From these meetings, Carol gained a general understanding of the M & R theaters, but she did not receive any of M & R’s annual reports or other pertinent financial data regarding the business. Further, Jerrold and Louis were officers or directors of the M & R corporations, while Carol had no official business responsibilities in relationship thereto. Her principal activities involved philanthropic organizations and artistic pursuits.

During 1986, the principals of M & R, including Jerrold and Louis, decided to sell the business. They initially retained the First Bank of Boston to solicit offers. They eventually negotiated with two business entities, American Multi-Cinema, one of the country’s largest chains of movie theaters, and Redstone National Amusement. Said negotiations did not result in offers that were acceptable to M & R’s management. During 1986 and 1987, Cineplex Odeon was aggressively purchasing theater chains in the Chicago area and was preparing to build a number of new theaters at suburban and Chicago locations. A number of articles in Variety, a publication pertaining to the entertainment industry, were admitted into evidence. These described the “merger mania” taking place in the movie theater industry and the fact that box office profits were up substantially in 1986 and 1987. Also, at this time, the Justice Department was loosening antitrust restrictions which had previously prohibited movie producers and movie distributors from owning movie theaters. This change in policy had the effect of increasing demand for existing movie theater chains, such as M & R.

The estate was not closed in 1986, purportedly due to tax purposes. Both Jerrold and Louis testified that up to and through 1986 each assumed that Carol would receive 75% of the shares in the estate held in the various M & R theatres.

Early in 1987, attorney Lance Rodgers, a long-time friend of Louis, who had analyzed the prior offers to purchase M & R, was asked by Jerrold and Louis to analyze decedent’s will. Rodgers told them that decedent’s will set a certain finite amount to be provided as a bequest to the surviving spouse and that said amount referred to the Federal estate tax values as finally determined. Rodgers further told them that the marital bequest was $2,823,269.

On March 9, 1987, Jerrold, Louis, Carol and Lance Rodgers met with Harold Burnstein, the estate’s attorney, at the latter’s office. The meeting’s purpose was to discuss the manner by which the marital bequest would be funded. The testimony as to what occurred at this meeting presents contradictory viewpoints. Carol testified that, from this meeting, it was her understanding that the marital bequest had to be made in cash. All other participants testified that various scenarios were presented as to how the marital bequest should be funded, including mixtures of stock and cash, as well as cash only.

In September 1987, Jerrold sent Carol a probate court form entitled “Receipt and Approved of Fund Report of Independent Representative” which, in effect, acknowledged that she had received her interest in the estate; Carol signed and returned this form. At the time of signing the document, no final account and report for the estate had been prepared or submitted. Further, at the time of trial, no such final account and report had been submitted, but Carol acknowledged receipt of her marital bequest in the form of cash.

In February 1988, Jerrold and Louis were informed that the Loews’ theater chain was interested in buying M & R. The first meeting with Loews’ representatives occurred in March 1988. The sales agreement reached with Loews in May 1988 assigned a value of $63,397,000 to the M & R theaters and contained $3,103,000 for a covenant not to compete, with the offer totaling $67,500,000. The allocations of asset values were made solely by Loews without negotiation. Also, under the agreement, Loews was to pay $1,600,000 in land rental annually for 20 years, with two 10-year renewal options, which would be increased over time to reflect inflation. Further, Loews agreed first to employ the four principals of M & R (including Jerrold and Louis) for an aggregate sum of $400,000 a year; second, Loews agreed to provide for the four principals, four incentive bonuses of 10% of any excess gross revenues over $5 million a year; and third, Loews agreed to give them options to buy up to 150,000 shares of Columbia Pictures stock. (Columbia Pictures owned Tri-Star Pictures which, in turn, owned the Loews’ theater chain.) These financial terms were reached in June 1988. From the Loews deal, including purchase of the theaters and rental payments, Jerrold and Louis received approximately $20 million each. Carol’s share, based on her personal stock holdings in M & R (acquired prior to decedent’s death) was approximately $5 million. (This figure does not take into account the money paid to Carol as the marital bequest.)

On appeal, Carol argues that (1) the trial court erred in granting partial summary judgment as to count I of the complaint which sought construction of purported ambiguities of decedent’s will; (2) the trial court erred in finding that the marital bequest was fully funded; and (3) the trial court erred in finding that Jerrold and Louis had not violated their fiduciary duties.

Carol filed her verified complaint on August 18, 1989. Count I asserted that certain provisions of decedent’s will were ambiguous and required extrinsic evidence for proper construction. In count II, plaintiff, Carol, alleged that Jerrold and Louis had violated well established fiduciary duties owed to her as decedent’s spouse and principal beneficiary under his will.

ORDERS INVOLVED IN THIS APPEAL.

Jerrold and Louis moved for partial summary judgment as to count I, arguing that there was no genuine issue of material fact as to any ambiguity of the subject will. Said motion was granted on December 4,1989, during the first week of the bench trial.

In an order dated January 24, 1990, but entered on March 2, 1990, the trial court entered judgment in favor of Jerrold and Louis on count II of plaintiff’s complaint. This order held further that Carol was entitled to 10% of the Hyde Park Theaters, Inc.; that Carol was entitled to the appropriate share of the estate’s income received from February 1, 1987, to August 5, 1990, subject to review by the court; this order then directed the parties to provide the trial court with information as to whether Carol had received her full marital bequest.

The order dated February 9, 1990, and entered on March 2, 1990: (1) reversed the trial court’s prior decision that Carol was entitled to a 10% interest in the Hyde Park theaters; (2) deferred ruling on Carol’s donative intent to give Jerrold and Louis the sum of $630,000 rather than $574,358, as held by the January 24, 1990, order; and (3) directed Carol to provide evidence, if any, that $630,000 in estate income paid to her prior to January 31, 1987, was transferred back to the estate.

On March 2, 1990, the trial court entered two orders, one denying Carol’s motion to order distribution, and the second adopting the orders dated January 24, 1990, and February 2, 1990, as reflecting the court’s oral rulings on all remaining matters on those dates. The second order entered on March 2, 1990, stated that it was final and appealable pursuant to Supreme Court Rule 304 (134 Ill. 2d R. 304) and there was no reason to delay appeal. In view of the complexity of this proceeding, we will treat the orders entered on March 2, 1990, as final and appealable pursuant to the notice of appeal.

First, Carol argues that the trial court erred in granting Jerrold and Louis’ motion for partial summary judgment as to count I of her verified complaint.

Summary judgment is a drastic and extraordinary remedy, and it must be granted only when the movant’s right to judgment as a matter of law is absolutely clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229.) Summary judgment should be granted by the trial court only when it is satisfied that the pleadings, affidavits and other evidence present no genuine issue of material fact. (Knief v. Sotos (1989), 181 Ill. App. 3d 959.) A trial court must construe the record before it most strictly against the movant; conversely, the court must view the record in a light most favorable to the non-moving party. (Knief 181 Ill. App. 3d at 963.) However, summary judgment is an expeditious method of disposing of lawsuits and should be allowed only when the right of the moving party is free from doubt. (Kelman v. University of Chicago (1988), 166 Ill. App. 3d 137.) A reviewing court’s task is to determine whether the trial court correctly concluded that there were no genuine issues of material fact, and, if so, whether judgment for the moving party was correct as a matter of law. International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555.

Carol argues that the subject will is ambiguous, namely, it fails to set any time, for distribution of the marital bequest. She points out that in Burnstein’s deposition testimony, he stated that he drafted the will and that decedent instructed him to draw up a document leaving “75% of his property” to Carol. It is well established that statements made by the testator, either before or after the making of a will, are not admissible to prove what was intended by the written will itself. Merchant’s National Bank v. Weinold (1959), 22 Ill. App. 2d 219, 228.

Further, Carol asserts that defendants' delay in funding the marital bequest should be construed as extrinsic evidence admissible to assist in construing the will. But as Jerrold and Louis contend, this alleged* delay actually relates to the issue of whether they violated a fiduciary duty rather than one of will construction.

Accordingly, we find that the trial court properly held that the decedent’s will was not ambiguous and that the terms of the will may be construed in accordance with the ordinary and usual meaning of the terms therein.

We next address Carol’s contention that Jerrold and Louis breached their fiduciary duties as dominant executors of the estate. Prior to so doing, we make a number of observations. We must first note that, in this most complex estate, the probate court was minimally involved. The record gives no indication that the executors ever sought an order for independent administration of the estate. There is no evidence that the estate’s representatives appeared before the court on a regular basis during the estate’s pendency. As a result, the probate court had no input in regard to the various actions taken by Jerrold and Louis in relationship to the estate and its assets. For example, the probate court’s approval or advice was never sought as to the propriety of M & R’s making loans for purposes of acquiring theaters from established corporations in which the estate held a substantial interest. Indeed, Jerrold and Louis testified that seeking such guidance never even crossed their minds. Had the estate’s representatives, specifically Jerrold and Louis and attorney Burnstein, sought the court’s guidance on a regular basis, much of the litigation presently before us may well have been prevented.

Next, we note our agreement with the trial court’s view that Jerrold and Louis were dominant executors of the estate. There is no question that their close involvement with M & R and the business world in general and their far superior knowledge of all pertinent transactions qualified them as dominant executors. Of the two, it appears that Jerrold was most involved with the financial dealings of M & R and the most cognizant of those transactions which affected the estate.

Further, we address an issue that carried substantial weight in the trial court’s judgment. At the hearing wherein the trial court made its finding of facts and conclusion of law, the subject of Carol’s credibility arose. The court below stated that aspects of her testimony were “somewhat disconcerting,” particularly regarding “her lack of specific recall on points seemingly favorable to Jerrold and Louis and her specific denials of facts later determined by otherwise independent witnesses.” Conversely, the court found the testimony of Jerrold and Louis to be credible.

While we do not argue with the trial court’s determination as to some credibility problems in Carol’s testimony, we do find that the bulk of her testimony was believable. The thrust of her testimony was that she relied heavily on her sons’ judgment as to the details of the various businesses in which the estate was involved and that, from the time of decedent’s death until the Loews’ buyout, she did not take an active part or have extensive knowledge of the inner workings of the M & R business.

We also note that while the trial court found that the testimony of Jerrold and Louis was credible, it is clear that they never ascertained or received advice as to their duties and obligations to their mother in respect to seeing that she received competent and well-informed counsel from an independent source. We set forth several examples which clearly demonstrate that Jerrold and Louis did not realize or understand their duties in the position they occupied.

Jerrold testified that he was directly involved in the process of valuing the estate’s assets for the Federal estate tax return. He further testified that he attempted to obtain the lowest valuations possible for tax purposes. During that three-year period, it never occurred to him that, by lowering the assets’ valuation, the amount which Carol, the principal beneficiary, received from the estate would be proportionally reduced. Further, Louis testified that he was present at the critical March 9, 1987, meeting. Louis further stated that at the meeting he had upbraided Harold Bumstein, the estate’s attorney, for making the valuation of the estate’s assets similar to the values that Redstone National Amusement company had offered for M & R’s theaters. (Redstone had initially offered $46 million for M & R.) He made this statement to Burnstein despite the fact that it was common knowledge that, under the Redstone bid, the estate's shares in M & R were worth well over twice the amount they were valued by the IRS.

Specifically, regarding the alleged breach of fiduciary duty, Carol argues that Jerrold and Louis wrongfully delayed funding of the marital bequest for their intended advantage; that Jerrold and Louis caused plaintiff to acquiesce to the funding of the marital bequest with cash only; that the marital bequest was not fully funded; and that Jerrold and Louis acquired properties in their individual names with the improper use of estate funds and credit.

The standards set forth in Dombrow v. Dombrow (1948), 401 Ill. 324, properly serve as the basis for this court’s determination as to whether Jerrold or Louis violated their fiduciary duties as executors of decedent’s estate. The Dombrow court stated:

“When the existence of a fiduciary relationship has been established, the law presumes that any transaction between the parties, by which the dominant party has profited, is fraudulent. This presumption is not conclusive but may be rebutted by clear and convincing proof that the dominant party has exercised good faith and has not betrayed the confidence reposed in him. The burden rests upon the dominant party to produce such evidence, and if the burden is not discharged the transaction will be set aside in equity. [Citations.] The important factors in determining whether a particular transaction is fair include a showing by the fiduciary (1) that he has made a free and frank disclosure of all the relevant information which he had, (2) that the consideration was adequate, and (3) that the principal had competent and independent advice before completing the transaction.” {Dombrow, 401 Ill. at 332-33.)

Moreover, the trial court’s findings of fact will not be disturbed on appeal unless they are against the manifest weight of the evidence. Coduti v. Hellwig (1984), 127 Ill. App. 3d 279, 293.

After closely reviewing the voluminous record, we conclude that the pivotal issue before us is whether Carol had competent and independent advice throughout the pendency of the estate and, in particular, with regard to distribution of the estate’s assets and the funding of the marital bequest.

Applying Dombrow’s “independent advice” standard to the instant case, we find that Carol had no such counsel. Certainly there is no clear and convincing evidence that she was given same, as Dombrow requires.

The evidence demonstrates the following facts. At the time of decedent’s death, Carol did not have her own lawyer. Nor did she consult with one as to the will and its provisions as they pertained to her. She relied upon her sons to handle the estate. Harold Burnstein, the estate’s lawyer, was primarily involved in the valuation of the estate’s assets, a process which was concluded in October 1985. During this valuation process, Carol received no independent advice or counsel or independent information as to the value of the estate’s assets.

Walter Dahl, a former Cook County circuit judge, testified for the respondents as an expert in probate matters. He stated that it was customary for lay executors to rely on professional advice and to attempt to minimize taxes and make conservative investments during the pendency of the estate. Dahl conceded that it would have been “almost reckless” for the sons to involve this estate interest in speculative theater ventures without the consent of all three of the co-executors. He further believed that Jerrold and Louis did not improperly delay the funding of the marital bequest; and he viewed those disbursements of assets as “consistent with what you usually expect to happen in this kind of an estate.” He also testified that it would be “totally out of keeping” for sons dealing with their mother in the context of total trust to tell her to “run off and get another lawyer.” Dahl also stated that it would be unusual for one executor to retain a lawyer to represent solely his interest; however, the issue of receiving and securing independent and competent advice in a situation where the personal interests of the executors may conflict was not addressed.

Of particular significance was the testimony of James M. Trapp, an attorney recognized by the trial court as an expert in estate administration. Testifying on Carol’s behalf, Trapp stated that the normal custom and practice in an estate with bequests of this type was that a partial funding of the marital bequest would occur sometime after the statutory claim period expired and that the full funding of the bequest’s balance would occur shortly after the Federal estate closing letter issued. Trapp stated that a distribution equalling at least $2 million of the estate’s assets could have been quickly distributed after the closing of the claims period in 1984 at the latest.

Further, Trapp testified that, as the distribution was prolonged, the conflict of interest of Jerrold and Louis as the dominant executors grew by reason of their positions as M & R’s corporate officers with knowledge of the business’ expansion and value. Trapp found it significant that the will contained no conflict of interest waiver, which resulted in the need for Jerrold and Louis to be substantially more circumspect in documenting and revealing their dealings with Carol as to the estate’s assets.

Trapp also testified regarding M & R’s use of loans from businesses in which the estate had a substantial equity interest, as well as bank loans based at least in part on the credit of the same businesses. In said transactions, which funded the acquisition of the Fine Arts, Hyde Park and Evanston theaters and the construction of the Webster Place and River Run cinema complexes, Jerrold and Louis together took a 50% ownership interest, and the estate received nothing. Trapp stated that, in this type of circumstance, it was contrary to custom and practice for the dominant executors not to “lay out a very good record [of the proposed transactions] to an interested beneficiary,” namely, Carol. Moreover, Trapp opined that Carol either constructively through the estate or individually should have received 28% interest (75% of 35%) in the acquisition and a construction of the five additional movie complexes. Specifically, Trapp stated:

“[I]n the conflict position that [Jerrold and Louis] were in, I would think that the practice would be either that they would offer that similar opportunity to the estate or build a very good paper trail on why it was offered, why it was refused, why it was fair not to put it in the estate but to take it on to just a couple of people.”

Further, in his cross-examination, Harold Burnstein testified that his primary task as the estate’s lawyer was to negotiate with the IRS about valuation of the estate’s assets. He was not consulted by Jerrold or Louis on any other estate matter. Burnstein was never told of the loans from which the estate held an equity interest for the purposes of acquiring or constructing theater complexes. Nor was Burn-stein ever told of the fact that M & R’s acquisition and construction of the five theater complexes were financed largely by borrowing from companies in which the estate had an equity interest. Burnstein was never given any of the M & R’s financial reports by the dominant executors, nor did they give him a list of the estate’s receipts or disbursements. Burnstein admitted that the closer a distribution is made to a decedent’s death, the less likely it is that problems will arise in the interim. From this testimony, it is obvious that Burnstein, contrary to Jerrold and Louis’ assertions, was incapable of rendering Carol any competent and independent advice as to the lack of a quick distribution of the marital bequest and the funding of the five theater acquisitions with loans from companies in which the estate held an equity interest. Burnstein did not have the knowledge necessary to provide such advice.

Further material evidence came in the testimony of Jerome Harris, the estate’s accountant. He testified that other than assisting in the valuation of the estate’s assets for Federal estate tax purposes and preparing the yearly fiduciary income tax returns, he performed no other substantial tasks for the estate. Contrary to Jerrold and Louis’ assertion that Harris was a source of competent, independent advice for Carol, we find little in his testimony that indicates he was particularly knowledgeable of the dominant executors’ fiduciary responsibilities. Certainly, Harris made no effort to apprise Carol as to the ramifications of the actions taken by the dominant executors. He never met with Carol alone to discuss estate matters.

Moreover, Jerrold testified that he never asked the estate’s lawyer, Burnstein, or its accountant, Harris, about his role as an executor and fiduciary. He also stated that he never asked Burnstein or Harris whether it was a violation of his fiduciary duty to utilize estate assets to acquire properties for his personal gain. In a similar vein, Louis testified that he never gave any thought to making the estate an equity owner in any of the new theaters acquired after decedent’s death. Also, Jerrold’s and Louis’ attempts to portray Carol as a savvy businesswoman who had a great deal of experience in financial matters is not well taken. The record shows that she had little direct experience in financial matters and was, at most, tangentially involved in the M & R businesses.

As to the timing of the distribution of the marital bequest and the propriety of using assets owned, in part, by the estate for acquisition of new properties that would solely benefit the dominant executors, we find that Carol clearly received no competent and independent advice in this regard. Accordingly, as to these two allegations of breach of fiduciary duty, we find that, under the Dombrow standard, Jerrold and Louis clearly failed to meet their burden of coming forward with clear and convincing evidence that Carol had independent and competent advice. This is the standard that was not met by Jerrold and Louis, and, by so ruling, we do not hold that Jerrold and Louis actively misled Carol.

As to the manner in which the marital bequest was funded, the testimony of Carol’s expert in estate administration, John Trapp, is again pertinent and probative. Trapp testified that the burden was on Jerrold and Louis to show that they had put before Carol all the necessary facts for her to arrive at an informed decision. In addition to this full disclosure, it also had to be demonstrated that Carol had an opportunity to consult with independent counsel. If Carol was not given that opportunity to consult with independent counsel, then the executors should have sought the court’s guidance.

Further, Trapp stated that, in his practice as an estate attorney, he advised a spouse, who had a significant share of an estate, that independent counsel might be essential to apprise her of rights to distribution. If Trapp had been asked by the executors as of December 1986 how the marital bequest should be paid, he would have told them to get an accurate appraisal of the estate’s assets and then turn to the court for guidance. If over the years since the decedent’s death the estate’s assets had appreciated significantly, then a strict distribution in cash could have produced an “enormously unfair result.” Trapp reiterated that, due to late date of the funding of the marital bequest, it was essential to obtain court approval for the distribution.

Harold Burnstein testified regarding the presence of Lance Rodgers at the March 9, 1987, meeting wherein funding the marital bequest was discussed. Burnstein had an “uncomfortable feeling when one of the executors [Louis] brings in a personal attorney, and it is a situation where I thought we had a friendly family and that there was peace and harmony.”

Lance Rodgers testified that he met with Carol once in 1986, at the suggestion of Louis. During this meeting, Rodgers discussed with Carol the possibility of deciding what her financial requirements would be for her lifetime, taking assets which would satisfy those needs, and then giving the balance to her sons. Carol indicated that she was not interested in such a plan.

As to the funding of the marital bequest, we find there is no evidence that Carol received any independent and competent advice. As noted above, the estate’s attorney was totally unaware of the appreciation of the estate’s assets and could not and did not provide her with competent advice. Rather, the evidence shows that Jerrold and Louis were going outside the estate and its attorney in seeking Lance Rodgers’ analysis of the will, as well as his suggestions on funding the marital bequest.

Again, the Dombrow standard has not been met. In the crucial matter of funding the marital bequest, it is readily apparent that Carol was left to fend for herself without independent counsel, armed only with incomplete and unsatisfactory information regarding the valuation of the estate’s assets in 1987. Further in light of the delay in the distribution of this estate and because Jerrold and Louis did not meet their burden of proving by clear and convincing evidence that Carol had been given the opportunity to have independent and competent advice, the marital bequest shall be set aside and reassessed, ;.nd, further, the “Receipt and Approval of Fund Report of Independent Representative” signed by Carol is set aside. Dombrow, 401 Ill. 2d at 332-33.

Accordingly, we affirm the dismissal of count I of plaintiff's complaint. We reverse the trial court’s decision on count II and remand this cause to the trial court to proceed as follows:

1. To continue in full force and effect at the discretion of the trial court paragraph 1 of page 1 of the order entered on March 4, 1990, providing that Jerrold and Louis may execute shareholders’ elections on behalf of the estate subject to notice to the plaintiff and the court order to afford the plaintiff an opportunity to object thereto.
2. That the trial court appoint an independent accountant to prepare a statement of assets, liabilities, receipts and disbursements of the Raymond J. Marks’ estate covering the period from May 11, 1982, to the date the notice of appeal was filed in this cause.
3. That a current inventory of the assets of said estate be prepared, together with the value placed on each of said items by the respondents and the plaintiff.
4. That an inventory of the assets of said estate previously transferred or disbursed be prepared, together with the date thereof and the name of the transferee and the value placed on such asset by the respondents and the plaintiff.
5. With respect to the sale of the M & R theater chain to Loews in September 1988, the respondents are directed to provide a report of the amount of the sales proceeds allocated by Loews to each M & R property purchased and the date of each payment therefor and further a schedule of rental payments paid or to be paid for each item of property purchased.
6. With respect to the sale to Loews of the Fine Arts, Evanston, Hyde Park, Webster Place and River Run theaters, respondents are directed to provide the identity of each person to whom sales proceeds were transferred or assigned from Loews’ purchase of those theaters and the amount of such sales proceeds received and the dates thereof.
7. That the respondents provide a report setting forth the income received by the estate from May 11, 1982, to the date of this appeal and the amount distributed and to whom on an annual basis or such other convenient period as determined by said accountant.
8. That the respondents provide an exact sum of cash and the value of other assets paid to Carol as her marital bequest together with the date of each disbursement or assignment of assets.
9. That the trial court ascertain the amount of the gift referred to in paragraph 2 of page 1 of the two-page order dated and entered on March 2,1990.
10. That the trial court ascertain whether Jerrold and Louis were or are directors or partners in any organizations constituting the M & R theater chain and, if so, whether the estate has or formerly had interests therein and, if so, the extent of the estate’s former or present interest in each such organization.
11. That the trial court ascertain the names of the M & R chain affiliates newly acquired or established by means of funds loaned or credit extended on the basis of estate benefits and that as to each such organization, the interest formerly or now owned by Jerrold and/or Louis be determined.
12. That, based upon the resulting determinations, the court direct, supervise and allocate the distribution of the assets and the liabilities of the estate and the probate proceedings in this cause be terminated by a proper final account and report.

Affirmed in part; reversed in part and remanded with directions.

UNVERZAGT and DUNN, JJ., concur.