only case that i found that said dealt with this issue was reagan arfield in that case they did not get to the issue the argument was raised however that case the defendant had essentially entered into the contract in order to reach it and to interfere with that also entered into the power of attorney relationship and all occurred contemporaneously the court found that because the actions were so clearly on justified they did a good question of whether or not  an individual acting as a agent or a power of attorney should be extended a qualified privilege to interfere with contract however i do think that there is a good public policy reasons i think there is s importance of that agency relationship outweigh the importance of contract parties relationship that a qualified privilege should extend to the agent who's act on behalf of the principal and they state that as a general statement law points the court in the direction of finding qualified privilege in this in this context the statute that i just cited essentially limits the liability of agents acting under a power of attorney for  assuming that they act with due care or say this is almost identical to the business judgment rule in the corporate context and in the corporate context directors and officers because of the business judgment rule and because on their decision making there is the other court order members shareholders they want to get information and public company public records agencies that overview their decision making the list goes on and on and o n and there are of course entitle that privilege here we don't have that same type of oversight nonetheless the legislature has extended the same or very similar type limitation of what ability to agents acting under the lease which is where the happens here what should print what should the agent then do should the agent act on what they did or should be agent act on what it is appar there however i do think it's important to look at the additional testimony because it does well i mean i'm not thinking about the dead man's testimony part sure but it considering what else is present right frank wanted but they there was testimony that they were all discussing this together when both of the notices quit issued and danny was acting suing two houses a box was that possibly incorrect so what difference does it make if that's what happened when the notice the quit if four days four days later frank says no you're going to you're going to go ahead and do it but this next year yeah i w yeah i would completely agree if that was all of the facts that were present i would agree with tom you wrote this that the most important facts are that are present in the record without addressing the dead man's issue sure  i think the most important facts that are present as it relates to that issue are a couple one is the authority that was granted to danny out or to make gifts to himself to i'm going to make a gift of some of the reasons right to me right i think i see your point it would be different i believe in different contexts the other and i believe more important fact is the think typically under the holding of royalty coin that sets out essentially a framework and i think a sensible framework as to who has the burden to the actually case i suppose the short answer is no i don't think that that should be applied rigidly in this case in this case the petition was actually put on notice in a number of different ways and that is at the heart of two six thirteen d which controls when affirmative  for two reasons one the petition itself actually does raise both facts and a conclusion a blog that danny utters actions were unjustified that is essentially what is required of the affirmative in most circumstances where the privilege is not obvious which i think it's fair to say it's not obvious here we've got a situation where there is no established on the issue o privilege for nature acting here but here the petition actually stated that his actions were unjustified so a simple denial of that allegation is enough to put all the parties on notice as to th in some circumstances all comes down to placing all the parties on adequate notice as to what the issues are going to be my point is here the petition itself raise the issue they didn't have to they didn't have to plead facts that danny others actions were unjustified but they in fact did so a simple denial of those allegations i think is enough to the effect of we do the same thing that affirmative defense would evidence on fraud and the issue was not waived for purposes of appeal because the other side was put on sufficient notice from both motions made prior to the trial and also because of the evidence that was supplied at both for the argument i've just outlined as well as the there was a motion to dismiss or strike which raised it didn't use i did not use the language of a qualified privilege but it did say that the matter should be that i'm sorry that the claims against a nine hundred personally should be struck or dismiss because the section of the power of attorney act which limits an agent thing that at the heart of the agency principle relationship the limitation on life bill of the is derived from the statute section excuse me and given that in these circumstances t so i don't think that the appellee was that any kind of disadvantage and the issue should be considered on appointed as the agent assigned benefits of leave under a life insurance policy to do so and justified that based on language in the power of attorney document itself which allowed her to change beneficiaries writ large  yourself in this case there was a similar provision except the provision actually permitted danny uttered to make gifts to himself now if as the appellee pointed out is not the same thing as business contract i admit that but it does i believe or should still result in danny utters or i'm sorry presumption of fraud not rising here because i believe it would lead to an absurd result come with a presumption of fraud but at the same time when he's acting in concert with with an attorney with his father that raises a presumption of fraud because the precise language of the power of attorney didn't anticipate business transactions with himself it doesn't permit business transactions to be conducted on behalf of the principal it just doesn't include the language of with himself for the benefit of the agent or successor agents like  and even if the presumption of fraud did apply here i don't think there's enough from the lower or to conclude that they actually made a ruling and i believe the sport can make a ruling on the on the has been overcome and the two of the primary considerations that the court is to look at is whether or not the agent acted with independent legal advice and whether the principal was made fully aware of the decision making process and i think both of those facts exist here so even if the language under the power of attorney is not sufficient to put aside the presumption of fraud that occurs when an agent sell feels i think your honor i would ask that the court consider extending a qualified privilege to an agent acting under a power of attorney and would in fact extend such a privilege and find that  i would like to primarily address the issue of qualified privilege that has been raised mr clarke and i do certainly agree that this privilege has not been recognized within the state of illinois previously and from the research that i did i was unable to locate any state that had recognized this privilege in this specific context as of yet this is an important legal issue that this court should consider now one of the things that mr clark focused on quite heavily both in his briefing and in his argument today was an argument or an analogy to the business judgment in terms of the privilege that he's seeking of that para turny act specifically some paragraph a however believe that analogy fails the language in the power of attorney act and the business judgment rules are separate and distinct legal principles that ought not to be analogized to one another unlike the language of the power of attorney act the business judgment rule is a presumption of good fa the power of attorney outplaying which does not create such a presumption instead the power of attorney act language limits liabilities in situations where agents act with due care whereas the business of judgment rule says that good faith is presume the language under the power tourney act section two dash seven says that liability for certain acts will be negated if good faith is dash seven sub her graphic a and we look at it as a whole as the cherry picking its provisions there is language that says that there will be the imposition of liability upon an agent in circumstances where that agent acts negligently and then there are some limited exceptions to that why ability for negligent action so this statute instead of being a presumption of good faith and fair dealing is the business judgment rule it is appears instead to have a primary purpose of imposing liability upon an individual and it can therefore hardly be said to be the basis for a new privilege that would eliminate significant liability for those agents who potentially interfere with contracts of their princip even if a privilege his found to exist it should not apply to the defendant in this case because he didn't gauge in impermissible self dealing and it should be noted that even if we're talking about the business judgment rule that the appellant tries to make an analogy to there is quite a bit of law which indicates that the business judgment rule protections vanish once evidence countering the presumption of good faith is introduced and similarly as was mentioned by mr clarke the court and reagan versus garfield bridge trust and savings bank sell feeling here the evidence in the record before this court shows that the defendant engaged in self dealing as well the defendant testified that he was going four team and there was a comment from the schuyler county sheriff who was told to testify that the defendant told him that he was going to quote unquote take  frank utters far immediately before the defendant direct requested that the plaintiff be arrested and removed from the property and that comment appears in the record at our one twenty four from the court's ruling and from an exhibit that was introduced it was plaintiff's exhibit six a trial we know that this farming operation was or at the very least be a profitable farming operation so what the defendant was doing was attempting to secure the benefits of that profitable farming operation for himself now as the court is well aware defendant attempts to argue that this transaction that he entered into is a gift to himself and we cannot deny the fact the power of attorney that was executed does allow for the giving of gifts including to the agent however the presumption of prod that exists from self dealing can only be overcome by evidence which is stated in the spring valley of the allen case that mr clarke referenced earlier now this cleary convincing evidence has been held to include for example gifts that are consistent with the principles past practice there was no evidence presented in the court below that anything that the defendant did with frank the land was consistent with any past practice that past practice folding of the collins case that was decided by this court back in april we have both read the collins case but we appear to have different interpretations of it now in this case as mr clarke stated and agent was not allowed to change of been a fishery designation so that she herself would be the beneficiary even though power of attorney did give her the guilty to change such designations that should be taken from this case your honour's is that in order for a power of attorney to authorize an agent to engage in self dealing that harbor tourney needs to be very clear and very specific about the authorization of the self do you like it wasn't enough that the calling power of attorney said that you could change beneficial this court essential you said that the power of attorney needed to say in order for that to be lawful you can change the power or you can change the beneficiary to your sop so if we're dealing with a very specific language that has to be present in the power tourney to authorize so i can double check that in my notes very quickly yes the power of attorney was executed on february twenty first of twenty twelve thank  there was also some suggestion by counsel that this self dealing by danny daughter ought to be allowed because there was a centrally coordination and somewhere along the way but the testimony from mr bauer that i did make note of and i would bring that to your honor's attention is in the record at four one thirty four in which he indicated that he spoke with frank or dan and was there something i missed i do not believe that there is a clear indication that he ever spoke with both of those thousand and thirteen and the spring of two thousand and fourteen he had farm the land for ten to twelve years before the issues that gave rise to this case and he had completed farming the land i believe for the twenty thirteen to twenty fourteen property here and we say property or the definition that was given of crop year by my client in his testimony was i believe march one of thirteen through february twenty eight of fourteen and then he went back and he had attempted to after he entered into the written lease he went back and he did do some planting for the next season and that is when he was arrested in a move from the property ok so all of the calculation in damages is based on es dispositive this is a situation in which there was an oral lease between the parties for thirteen fourteen any other sent a notice to quit telling grandmother you need to be out for that we spirit by february twenty eighth twenty fourteen and you're done after that subsequent to that as your honor has indicated all to myself and mr clark now subsequent to  given up until the end of the then current term subsequent to that written lease being interviewed into there was another noticed witness or not but that notice to quit and the majority of them had been dropped share leases until the year before the written lease where there was one oral katherine lease and the written leas if there are no further questions we would simply ask if this foam that purports upholds the ruling of the trial or in all respects thank you for your time thank you mr rebuttal argument theory of tortious interference with contract so it may in simple terms without using legal terminology if you concede that maybe what your client did was not the right thing to do in the circumstances but he had a qualifying group we've to do does he shouldn't be liable for this kind of point i think that i wouldn't be willing to go so far as to say he shouldn't have done what he did i think he would take the position that he was trying to act on behalf of his father greg but did he act in a way that is you know did he did he sense cause a breach of contract i think that's that's clear he  but we're not asking the court find that he acted perfectly but rather he acted in such a way that is not unjustified i would sing which is the set of circumstances from the reagan case where the individual got in the purpose of breaching that contract reducing your breach of that contract whereas here any other was appointed as the as frank others aged under a power of attorney two years before this whole incident occurred somebody else namely the other and finally the attorney ballard communicated to graham potter over a phone conversation that he represented both frank utter and de danny thank you your honors i