Second Division 

August 29, 2006 

Nos. 1-05-0067 & 1-05-0090 cons. 

IN RE ESTATE OF THEODORE HOELLEN, ) Appeal from the 

a Disabled Person (Robert F. Harris, ) Circuit Court 

Cook County Public Guardian, as ) of Cook County. 

Guardian of the Estate and Person of ) 

Theodore Hoellen, ) 

) 

Petitioner-Appellee ) 

 ) 

v. ) No. 03 P 1918 

) 

Donald L. Owsley, ) Honorable 

) Mary Ellen Coghlan 

Respondent-Appellant). ) Judge Presiding 

JUSTICE HALL delivered the opinion of the court: 

In this consolidated appeal, respondent Donald L. Owsley 

appeals from two orders entered by the probate court relating to 

the estate of Theodore F. Hoellen. The first order was entered 

in favor of the Public Guardian as guardian of the estate and 

person of Hoellen and against respondent for nominal damages in 

the amount of $1 and punitive damages in the amount of $50,000. 

The second was a postjudgment order that, among other things, 

granted respondent a time extension within which to post an 

appeal bond covering the money damages portion of the first 

order. 

The record shows that respondent, a Chicago police officer, 

first met Hoellen in the summer of 1999 when he responded to a 9-

1-1 call from Hoellen's neighbor after Hoellen mistakenly entered 

the neighbor's home believing it was his home. After the 

incident occurred, respondent began regularly visiting Hoellen at 
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his home. Hoellen's case was referred to the Public Guardian's 

office based on allegations that respondent was financially 

exploiting Hoellen, who lived alone and suffered from dementia. 

On October 8, 2003, the Public Guardian filed a five-count 

amended petition for issuance of a citation to recover assets 

alleging that over the years, respondent had engaged in a course 

of conduct designed to manipulate and financially exploit 

Hoellen, an 89-year-old physically and mentally impaired senior 

citizen who, it was argued, was unable to protect himself from 

such exploitation. 

In the citation petition, the Public Guardian presented 

uncontroverted evidence that Hoellen was suffering from 

progressive dementia and was incapable of making informed, 

independent decisions regarding his personal finances at the time 

respondent caused him to: designate respondent as primary 

beneficiary of his Chicago Transit Authority (CTA) retirement 

death benefit, designate respondent as beneficiary of a $50,000 

certificate of deposit held at Banco Popular, execute powers of 

attorney for health care and property naming respondent as agent; 

execute a trust document known as the "Theodore Hoellen Trust," 

under which respondent would receive Hoellen's entire trust 

estate, both real and personal, including all amounts added to 

the trust through Hoellen's last will and testament. 

After conducting an evidentiary hearing and hearing argument 

on the citation petition, the probate court concluded that 
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respondent had used his position as a Chicago police officer to 

gain Hoellen's trust, exert undue influence over him, and then 

flagrantly and intentionally breach the fiduciary duty he owed 

him by virtue of a power of attorney. As a result, the probate 

court invalidated all of respondent's interests in Hoellen's 

estate: quitclaim deeds, CTA pension, certificate of deposit at 

Banco Popular, and the trust. 

The probate court then awarded the Public Guardian nominal 

damages in the amount of $1 and punitive damages in the amount of 

$50,000. The probate court reasoned that punitive damages were 

warranted not only to punish respondent for violating his 

fiduciary duty to Hoellen but also to deter other individuals 

holding positions of public trust from financially exploiting 

vulnerable senior citizens. 

On appeal, respondent contends that: (1) the probate court 

erred in denying his motion for substitution of judge as of 

right; (2) the probate court erred in denying his motion for 

substitution of judge for cause; (3) the probate court erred in 

not requiring the Public Guardian and certain Hoellen family 

members from responding to his request to admit facts and the 

genuineness of specified documents pursuant to Supreme Court Rule 

216 (134 Ill. 2d R. 216); and (4) the probate court erred by 

entering a judgment against him for nominal and punitive damages. 

 For the reasons that follow, we affirm. 
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ANALYSIS 

As a preliminary matter we address the jurisdictional issue 

raised by the Public Guardian. The Public Guardian contends that 

respondent's notice of appeal only refers to the money damages 

portion of the probate court's order and therefore our 

jurisdiction is limited to that portion of the order and does not 

extend to the issues respondent now raises on appeal which would 

result in a new trial. The Public Guardian maintains that 

respondent's notice of appeal indicates he was only seeking 

reversal of the money damages portion of the order where the 

notice specifically refers to money damages but excludes any 

mention of Hoellen's estate assets. We disagree. 

Supreme Court Rule 303(b)(2) (155 Ill. 2d R. 303(b)(2)), 

which governs the form and content of a notice of appeal, states 

in relevant part that a notice of appeal "shall specify the 

judgment or part thereof or other orders appealed from and the 

relief sought from the reviewing court." Nowhere in the rule is 

there a requirement that an appellant specifically set forth in 

the notice of appeal each and every issue he wishes to appeal. 

On the contrary, our supreme court has determined that the 

briefs, and not the notice of appeal itself, specify the precise 

issues to be relied upon for reversal. Burtell v. First Charter 

Service Corp., 76 Ill. 2d 427, 433, 394 N.E.2d 380 (1979). 

The purpose of a notice of appeal is to inform the party 

prevailing in the trial court that the unsuccessful party seeks 
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review of the judgment. Burtell, 76 Ill. 2d at 433. Notices of 

appeal are to be liberally construed. In re Marriage of Goldberg, 

282 Ill. App. 3d 997, 1001, 668 N.E.2d 1104 (1996). As a result 

of this liberal construction, a notice of appeal will be deemed 

sufficient to confer appellate jurisdiction when, considered as a 

whole, it advises the successful party of the nature of the 

appeal by fairly and adequately setting out the judgment 

complained of and the relief sought. Burtell, 76 Ill. 2d at 433-

34. Where the deficiency in a notice of appeal is one of form 

rather than substance and the appellee is not prejudiced, the 

absence of strict compliance with form is not fatal. Burtell, 76 

Ill. 2d at 434. 

Respondent's notice of appeal is sufficient under these 

principles. The notice states that respondent is appealing from 

"the order entered on December 28, 2004, which, inter alia, made 

final the 11-page judgment 'Order' entered against him by the 

Probate Division of the Circuit Court of Cook County on December 

10, 2004. Said 11-page judgment Order entered a judgment against 

[respondent] for the sum of one dollar ($1.00) in compensatory 

damages and the sum of fifty thousand dollars ($50,000) in 

punitive damages." The notice goes on to state that respondent 

is "requesting that the circuit court be reversed and, if 

necessary, that the cause be remanded to that court with 

directives consistent with such disposition, and for any other 

and further relief to which she [sic] may be entitled." 
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Respondent's notice of appeal puts the Public Guardian on 

notice that he is appealing from the "11-page judgment 'Order'" 

entered against him by the probate court on December 10, 2004. 

The notice also sets forth the relief sought. Moreover, the 

Public Guardian does not claim any prejudice by the allegedly 

defective notice of appeal. In sum, this court's jurisdiction is 

not limited to the money damages portion of the trial court's 

order entered on December 10, 2004. 

In another preliminary argument, the Public Guardian 

contends that respondent should be barred by the doctrine of 

judicial estoppel from requesting a complete reversal of the 

probate court's finding since he represented at the appeal bond 

hearing that he was only appealing the money damages award. 

Again, we must reject the Public Guardian's argument. 

Judicial estoppel is an equitable common law doctrine 

designed to protect the integrity of the judicial process by 

preventing a party who has successfully maintained a position in 

one legal proceeding from asserting a contrary, inconsistent 

position in a subsequent proceeding in order to receive favorable 

judgments in each proceeding. Ceres Terminals, Inc. v. Chicago 

City Bank & Trust Co., 259 Ill. App. 3d 836, 849-50, 635 N.E.2d 

485 (1994). Illinois courts have set forth five elements as 

necessary to successfully assert judicial estoppel: (1) the party 

to be estopped must have taken two positions; (2) the positions 

must have been taken in judicial or quasi-judicial administrative 
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proceedings; (3) the positions must be given under oath; (4) the 

party must have successfully maintained the first position and 

received some benefit thereby; and (5) the two positions must be 

totally inconsistent. Ceres Terminals, Inc., 259 Ill. App. 3d at 

851. 

Respondent maintains that judicial estoppel does not apply 

in this case because the position he took at the appeal bond 

hearing is not inconsistent with the position he now takes on 

appeal and therefore element five has not been established. We 

agree. 

Review of the record indicates that at the appeal bond 

hearing respondent sought a time extension within which to post 

an appeal bond covering the money damages portion of the order, 

not because he was only appealing from that portion of the order, 

but because he was seeking a stay of the money judgment, which 

was the only part of the order that required such surety. The 

bond requirement applicable to money judgments is set forth in 

subparts (a) and (b) of Supreme Court Rule 305 (155 Ill. 2d Rs. 

305(a), (b)). Rule 305(a) automatically grants a stay of 

enforcement of money judgments if its procedures are followed, 

and Rule 305(b) allows a discretionary stay of enforcement of 

money judgments. See Stacke v. Bates, 138 Ill. 2d 295, 303, 562 

N.E.2d 192 (1990). Requiring an appellant to post an appeal bond 

gives a judgment creditor security during the pendency of the 

appeal by ensuring that if the judgment is affirmed, the judgment 
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creditor will be paid that which is owed. Bricks, Inc. v. C & F 

Developers, Inc., 361 Ill. App. 3d 157, 162, 836 N.E.2d 743 

(2005). Judicial estoppel does not apply in this case. 

Turning to the merits, respondent maintains that the probate 

court erred in denying his motions for substitution of judge as a 

matter of right and for cause. We must reject respondent's 

contentions. 

Pursuant to section 2-1001(a)(2) of the Illinois Code of 

Civil Procedure (Code) (735 ILCS 5/2-1001(a)(2) (West 2000))1

, a 

civil litigant is entitled to one substitution of judge without 

 1

 Effective January 1993, the legislature amended section 2-

1001 of the Code and added section 2-1001.5 to distinguish 

between "substitution of judge" and a "change of venue." Pub. Act 

87-949, ' 1, eff. January 1, 1993. Case law published prior to 

January 1993 uses the terms "substitution of judge" and "change 

of venue" interchangeably. See In re Marriage of Abma, 308 Ill. 

App. 3d 605, 609, 720 N.E.2d 645 (1999). 
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cause as of right. However, to prohibit litigants from "judge 

shopping" and seeking a substitution only after they have formed 

an opinion that the judge may be unfavorably disposed toward the 

merits of their case, a motion for substitution of judge as of 

right must be filed at the earliest practical moment before 

commencement of trial or hearing and before the trial judge 

considering the motion rules upon a substantial issue in the 

case. In re Estate of Gay, 353 Ill. App. 3d 341, 343, 818 N.E.2d 

860 (2004). 

A trial court's ruling on a discovery motion is considered 

"substantial" when it pertains to evidentiary matters and reveals 

the court's interpretation of a supreme court rule or the court's 

opinion as to the admissibility of extrinsic evidence. Kochan v. 

Owens-Corning Fiberglass Corp., 242 Ill. App. 3d 781, 793, 610 

N.E.2d 683 (1993); Bonnie Owen Realty, Inc. v. Cincinnati 

Insurance Co., 283 Ill. App. 3d 812, 822, 670 N.E.2d 1182 (1996); 

City of Granite City v. House of Prayers, Inc., 333 Ill. App. 3d 

452, 461, 775 N.E.2d 643 (2002). Review is de novo, since it is 

a question of law as to whether a trial court's ruling is 

substantial. Partipilo v. Partipilo, 331 Ill. App. 3d 394, 398, 

770 N.E.2d 1136 (2002). 

In addition, our courts have determined that even if the 

trial court did not rule on a substantial issue, a motion for 

substitution of judge as of right may still be denied, if before 

filing the motion, the moving party had an opportunity to test 
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the waters and form an opinion as to the court's disposition 

toward his claim. Partipilo, 331 Ill. App. 3d at 398-99; In re 

Marriage of Abma, 308 Ill. App. 3d 605, 611, 720 N.E.2d 645 

(1999). 

In this case, review of the record indicates that 

respondent's two motions for substitution of judge as of right 

were untimely and properly denied because they were made after 

the probate court ruled upon a substantial issue. The record 

also indicates that the motions were untimely and properly denied 

because they were made after respondent had an opportunity to 

test the waters and discern the trial court's disposition toward 

the case. 

Respondent filed separate motions for substitution of judge 

as of right on July 16 and 22, 2003. The probate court denied 

both motions on the ground that they were untimely because they 

were filed after the court had ruled upon a substantial issue in 

the case on June 9, 2003, by granting the Public Guardian's 

emergency motion compelling respondent to produce "signed" copies 

of Hoellen's trust, powers of attorney, and last will. 

Respondent contends that the probate court's ruling on the 

emergency motion was not substantive because the discovery issues 

involved were not substantive in nature and the amount of time 

the court spent on the motion was de minimis. We disagree. 

The record indicates that prior to filing its emergency 

motion, the Public Guardian had received "unsigned" copies of the 
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requested documents, causing it to question their authenticity 

and validity such that the probate court ruled that respondent 

should be required to produce "signed" copies of the documents. 

This ruling was substantive in nature and entailed more than a 

mere administrative or ministerial decision. The specific dates 

on which the various documents were signed was relevant to 

tracing the nature and extent of the undue influence the probate 

court found respondent exercised over Hoellen. In addition, the 

documents contained information allowing the Public Guardian to 

go forward with the citation petition. 

Moreover, the record indicates that even if the probate 

court's discovery ruling did not amount to a substantive ruling, 

respondent's two motions for substitution of judge as of right 

were still untimely because they were filed after respondent had 

an opportunity to test the waters and form an opinion as to the 

court's disposition toward his case. At the hearing on 

respondent's first motion for substitution of judge as of right 

held on July 16, 2003, counsel for respondent stated that he 

believed the court "showed a predisposition to ruling in favor of 

the Public Guardian's Office" when the court granted the Public 

Guardian's emergency motion compelling production of documents. 

Counsel's statement clearly shows he had formed an opinion as to 

the court's disposition toward his case. 

Respondent alternatively argues that since the probate court 

granted the Public Guardian's emergency motion on June 9, 2003, 
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in the guardianship action, and the citation proceeding was not 

filed until June 24, 2003, it is impossible for the June 9 ruling 

to have been a substantive ruling within the citation proceeding 

because the proceeding did not exist at the time the ruling was 

made. Citing no supporting case law, respondent contends that a 

citation proceeding under article XVI, section 16-1, of the 

Probate Act of 1975 (Probate Act) (755 ILCS 5/16-1 (West 2000)), 

is a new cause of action distinct from a guardianship-of-adisabled-adult proceeding under article XIa of the Probate Act 

(755 ILCS 5/11a-1 et seq. (West 2004)). He maintains that since 

service of process used to obtain personal jurisdiction over a 

respondent in a citation proceeding is the same as in any other 

civil action, and the parties have a right to a jury trial, a 

citation proceeding is a new cause of action distinct from a 

guardianship-of-a-disabled-adult proceeding, and therefore the 

probate court's June 9 ruling in the guardianship action could 

not have been a substantive ruling in this case. We disagree. 

In this case, even if the citation proceeding constituted a 

new cause of action distinct from the underlying guardianship 

proceeding, respondent's motions for substitution of judge as of 

right were still properly denied because they were filed after 

the probate court made a substantial ruling in the case and after 

respondent formed an opinion that the court may be unfavorably 

disposed toward the case. To preclude litigants from "judge 

shopping," and in the interest of judicial economy, our courts 
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have determined that even if a particular proceeding constitutes 

a new cause of action, it will not be deemed a new cause for 

purposes of substitution of judge as of right if the trial court 

made a prior substantive ruling in the case or the moving party 

had an opportunity to test the waters and form an opinion as to 

the court's disposition toward his case. See Niemerg v. Bonelli, 

344 Ill. App. 3d 459, 465, 800 N.E.2d 86 (2003) (finding that 

although a petition to vacate a judgment under section 2-1401 of 

the Code may be a "new action" for some purposes, such as 

pleading sufficiency and service of process, it is not a new case 

for purposes of substitution of judge under section 2-1001(a)(2) 

of the Code). 

Respondent next contends that even if the probate court made 

a substantive ruling in this case, he was nevertheless entitled 

to a substitution of judge for cause. He maintains that the 

probate court erred in ruling that his July 22, 2003, motion for 

substitution of judge for cause was facially invalid, rather than 

first transferring the motion to another judge to conduct a 

hearing to determine whether cause existed. Again, we must 

reject respondent's contentions. 

Section 2-1001(a)(3) of the Code provides for a substitution 

of judge for cause. 735 ILCS 5/2-1001(a)(3) (West 2000). 

Effective January 1993, this section of the Code was amended to 

provide that a trial judge facing a petition for substitution was 

required to refer the petition to a "judge other than the judge 
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named in the petition." 735 ILCS 5/2-1001(a)(3)(iii) (West 2000); 

In re Marriage of Schweihs, 272 Ill. App. 3d 653, 659, 650 N.E.2d 

569 (1995). However, a party's right to have a petition heard by 

another judge is not automatic. In "order to be entitled to a 

hearing before another judge on whether a substitution for cause 

is warranted, the motion must allege grounds that, if taken as 

true, would justify granting a substitution for cause." Alcantar 

v. Peoples Gas Light & Coke Co., 288 Ill. App. 3d 644, 649, 681 

N.E.2d 993 (1997). 

A trial judge is presumed to be impartial and the burden of 

overcoming this presumption rests with the party asserting bias, 

who must present evidence of personal bias stemming from an 

extrajudicial source and evidence of prejudicial trial conduct. 

In re Marriage of Hartian, 222 Ill. App. 3d 566, 569, 584 N.E.2d 

245 (1991). In this case, respondent did not meet the threshold 

showing of bias or prejudice required to transfer the motion to 

another judge. 

Respondent claims in essence that the probate court showed 

prejudice toward him by ruling against him on the Public 

Guardian's emergency motion to compel production of documents and 

by denying his initial motion for substitution of judge as of 

right filed on July 16, 2003. Respondent's claims are meritless. 

Review of the record indicates that the probate court 

judgments at issue were based on the evidence. Moreover, our 

courts have determined that "erroneous findings and rulings by 
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the circuit court are insufficient reasons to believe that the 

court had personal bias or prejudice for or against a litigant." 

In re Marriage of Hartian, 222 Ill. App. 3d at 569, citing 

McCormick v. McCormick, 180 Ill. App. 3d 184, 194, 536 N.E.2d 419 

(1988). Consequently, the probate court properly denied 

respondent's motion for substitution of judge for cause, without 

first transferring the matter for a hearing before a different 

judge. 

Respondent next contends that the probate court erred in 

denying his motion to compel the Public Guardian and certain 

Hoellen family members to respond to his requests to admit facts 

and the genuineness of specified documents. We must reject 

respondent's contentions. 

A request to admit facts pursuant to Supreme Court Rule 216 

(134 Ill. 2d R. 216) is a discovery procedure the trial court has 

wide discretion in controlling. Homer G. Dickson & Co. v. 

Barraza, 115 Ill. App. 3d 5, 7, 449 N.E.2d 990 (1983). In this 

case, we cannot say the probate court abused its discretion in 

not requiring the Public Guardian and certain Hoellen family 

members to respond to a request for admission of facts and the 

genuineness of specified documents where the request was filed 

approximately five months after discovery had been closed and a 

few weeks before trial was to begin. See Illinois State Toll 

Highway Authority v. Humphrey Estate, 62 Ill. App. 3d 316, 326-

27, 379 N.E.2d 626 (1978) (finding that trial court did not err 
1-05-0067 & 1-05-0090 (cons.) 

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in not requiring petitioner to respond to request to admit filed 

three days prior to trial). Moreover, respondent was not 

prejudiced by the probate court's ruling, considering he never 

challenged any of the court's factual findings and his requests 

to admit concerned facts he could have proved up at trial. 

Finally, respondent sets out a number of arguments as to why 

the probate court erred in entering a judgment against him for 

nominal and punitive damages. Each of these arguments will be 

addressed separately. 

Respondent first contends that although article XVI of the 

Probate Act vests the probate court with the authority to return 

assets to Hoellen's estate, it did not give the court 

jurisdiction to litigate "collateral" claims such as undue 

influence and breach of fiduciary duty brought against him, and 

therefore the court erred in entering judgment against him for 

nominal and punitive damages based on these two legal theories. 

Respondent is incorrect. 

Article XVI of the Probate Act grants a probate court broad 

powers to effectuate the discovery and recovery of a disabled 

person's real and personal property. See C. Golbert, Using the 

Probate Act to Recover Assets Stolen from Persons with 

Disabilities, 88 Ill. B.J. 510, 511 (2000). Section 16-1 of the 

Probate Act allows a party to file a citation petition on behalf 

of the estate, not only to discover information, but also to 

recover property. In re Estate of Shugart, 81 Ill. App. 3d 538, 
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540, 401 N.E.2d 611 (1980); In re Estate of Weisberg, 62 Ill. 

App. 3d 578, 585, 378 N.E.2d 1152 (1978). In such a proceeding, 

a probate court is authorized to "determine all questions of 

title, claims of adverse title and the right of property and may 

enter such orders and judgment as the case requires. If the 

respondent refuses to *** obey the court's order to deliver any 

personal property or, if converted, its proceeds or value, *** 

the court may enforce its order against the respondent's real and 

personal property in the manner in which judgments for the 

payment of money are enforced." 755 ILCS 5/16-1(d) (West 2000). 

If a citation petition seeks the recovery of property, it 

"must make out cognizable legal claims against the respondent 

just like any other complaint." C. Golbert, 88 Ill. B.J. at 512; 

see In re Estate of Shugart, 81 Ill. App. 3d at 540; In re Estate 

of Weisberg, 62 Ill. App. 3d at 585; In re Estate of Garrett, 81 

Ill. App. 2d 141, 147, 224 N.E.2d 654 (1967). Claims of undue 

influence and breach of fiduciary duty are two legal theories 

commonly asserted in a section 16-1 citation petition to recover 

property. See, e.g., In re Estate of Joutsen, 100 Ill. App. 3d 

376, 380-81, 426 N.E.2d 942 (1981) (citation petition hinged on 

legal theories of fiduciary relationship and undue influence); In 

re Estate of Berry, 277 Ill. App. 3d 1088, 1091, 661 N.E.2d 1150 

(1996) (undue influence); In re Estate of Miller, 334 Ill. App. 

3d 692, 697, 778 N.E.2d 262 (2002) (breach of fiduciary duty). 

In this case, article XVI of the Probate Act obviously gave the 
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probate court the authority to litigate claims of undue influence 

and breach of fiduciary duty brought against respondent. 

In a related argument, respondent maintains that a circuit 

court acting under the Probate Act is a creature of statutory 

enactment, not empowered to exercise general chancery 
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jurisdiction,2 and therefore the court in this case did not have 

the power or jurisdiction to enter a judgment against him for 

money damages. Respondent is incorrect. 

 2

 The American legal system has its origins in England, 

where litigation occurred in a bifurcated system of "'common law' 

or 'law' courts, and 'Chancery' or 'equity' courts." S. Subrin, 

How Equity Conquered Common Law: The Federal Rules of Civil 

Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 914 

(1987). 

On January 1, 1964, the jurisdiction of the probate court 

was expanded to hear all justiciable matters. See, e.g., Radice 
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v. Antonacci, 87 Ill. App. 2d 139, 144, 231 N.E.2d 107 (1967) 

(stating that since the establishment of a single circuit court 

in 1964, the probate division of the circuit court has chancery 

jurisdiction); In re Estate of Breault, 63 Ill. App. 2d 246, 270, 

211 N.E.2d 424 (1965) ("as of January 1, 1964, Illinois has 

replaced the limited jurisdiction of the Probate Court with the 

unified general jurisdiction of the Circuit Court pursuant to sec 

9 of the New Judicial Article VI of the Illinois Constitution, 

granting to the circuit court 'unlimited original jurisdiction of 

all justiciable matter.'"). Moreover, prior to 1964, Illinois 

courts determined that even though a probate court did not 

possess general equity or chancery jurisdiction, it was still 

empowered to enforce its decrees and orders by chancery 

proceedings. See In re Estate of Hauser, 40 Ill. App. 2d 150, 

155, 189 N.E.2d 370 (1963). 

Respondent next contends that the probate court was not 

empowered to award nominal or punitive damages based on count II 

(undue influence) or count III (breach of fiduciary duty) of the 

citation, because these counts did not contain requests for such 

damages. Respondent claims that the probate court erred in 

awarding punitive damages because the Public Guardian failed to 

prove count IV (fraudulent misrepresentation) and count V 

(duress), which specifically requested punitive damages. Again, 

respondent is incorrect. 

The purpose of requiring a specific prayer for relief in a 
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complaint is to inform defendant of the nature of the claims 

against him and the extent of damages sought, so that he may 

prepare to meet the demand or permit a default to be taken 

against him. Rauscher v. Albert, 145 Ill. App. 3d 40, 43, 495 

N.E.2d 149 (1986). Section 2-604 of the Code provides that with 

the exception of default judgments and cases involving prejudice 

to the adverse party by reason of surprise, the prayer for relief 

does not limit the relief obtainable. 735 ILCS 5/2-604 (West 

2002); Dils v. City of Chicago, 62 Ill. App. 3d 474, 481, 378 

N.E.2d 1130 (1978). In this case, respondent was not prejudiced 

by unfair surprise regarding the punitive damage award since the 

allegations in the Public Guardian's citation petition and its 

June 4, 2004, response to the respondent's motion to strike the 

jury demand clearly put respondent on notice that compensatory 

and punitive damages were being sought. 

Respondent finally contends that the probate court erred in 

awarding punitive damages where they were accompanied by only 

nominal damages.3

 In support of this argument respondent relies 

 3

 The Restatement (Second) of Torts states that nominal 

damages are a trivial sum of money awarded to a litigant who has 

established a cause of action but has not established that he is 

entitled to compensatory damages. The Restatement goes on to 

state that nominal damages are to be distinguished from 

compensatory damages on one hand and punitive damages on the 

other, in that they are granted irrespective of harm to the 
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 primarily on the decision in Kemner v. Monsanto Co., 217 Ill. 

App. 3d 188, 576 N.E.2d 1146 (1991). Kemner does not support 

 

complainant or of a bad state of mind on the part of the 

defendant. Restatement (Second) of Torts ' 907 (1979); see also 

Wallace v. City of Rock Island, 323 Ill. App. 639, 642, 56 N.E.2d 

636 (1944) ("[n]ominal damages are such damages as are awarded in 

cases where the alleged negligence is proved, but where there is 

either a failure of proof as to damages suffered or no damages 

resulted"). 
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respondent's position. 

In Kemner, a train derailed, spilling 19,000 gallons of a 

wood preservative containing a small quantity of the chemical 

dioxin. Residents living near the chemical spill brought an 

action for damages against the chemical manufacturer. The jury 

awarded plaintiffs "0" in actual damages, $1 each for economic 

loss, and $16,250,000 in punitive damages. The reviewing court 

determined that in the absence of actual damages, nominal damages 

alone could not support the award of punitive damages where there 

were no allegations of an intentional tort and the jury 

instructions defining willful and wanton conduct omitted any 

reference to intentional conduct. Kemner, 217 Ill. App. 3d at 

199-200. Kemner does not support respondent's position because, 

unlike Kemner, there is no dispute in this case that the conduct 

at issue was intentional. 

In addition, respondent overlooks the fact that the relief 

the probate court ordered was not limited to nominal damages. In 

addition to punitive and nominal damages, the probate court 

vacated the quitclaim deed and trust, and removed respondent from 

Hoellen's bank accounts and death benefits. Moreover, courts in 

Illinois have allowed punitive or exemplary damages even when 

they were supported by only nominal damages. See McNay v. 

Stratton, 9 Ill. App. 215 (1881) (holding that punitive damages 

can be awarded in an action for false imprisonment without proof 

of actual damages); Pratt v. Davis, 118 Ill. App. 161, 181-82 
1-05-0067 & 1-05-0090 (cons.) 

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(1905) (holding that punitive damages can be given even though a 

plaintiff's loss is nominal); First National Bank of Des Plaines 

v. Amco Engineering Co., 32 Ill. App. 3d 451, 455, 335 N.E.2d 591 

(1975) (remanding for failure to award nominal damages and 

allowing plaintiffs to amend complaint to seek punitive damages), 

superceded by statute on other grounds in Wujcik v. Gallagher & 

Henry Contractors, 232 Ill. App. 3d 323, 328, 596 N.E.2d 199 

(1992). 

The question of whether punitive damages can be awarded in a 

particular case is a matter of law. Knierim v. Izzo, 22 Ill. 2d 

73, 87, 174 N.E.2d 157 (1961); Cirrincione v. Johnson, 184 Ill. 

2d 109, 116, 703 N.E.2d 67 (1998). An award of punitive damages 

is appropriate where the underlying tort is accompanied by 

aggravated circumstances such as wantonness, willfulness, malice, 

fraud, or oppression, or when the defendant acts with such gross 

negligence as to indicate a wanton disregard for the rights of 

others. PCx Corp. v. Ross, 209 Ill. App. 3d 530, 539, 568 N.E.2d 

311 (1991); Cirrincione, 184 Ill. 2d at 115-16. "The objectives 

of an award of punitive damages are the same as those which 

motivate the criminal law -- punishment and deterrence." 

Mattyasovszky v. West Towns Bus Co., 61 Ill. 2d 31, 35, 330 

N.E.2d 509 (1975). Punitive damages are not awarded as 

compensation, but instead serve to punish the offender and deter 

him and others from committing similar acts of wrongdoing in the 

future. Loitz v. Remington Arms Co., 138 Ill. 2d 404, 414, 563 
1-05-0067 & 1-05-0090 (cons.) 

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N.E.2d 397 (1990). 

Our courts have determined that punitive damages are 

appropriate to punish and deter conduct where a defendant, as in 

this case, is found to have committed an intentional breach of 

fiduciary duty. Glass v. M.D. Burkett, 64 Ill. App. 3d 676, 683, 

381 N.E.2d 821 (1978); Obermaier v. Obermaier, 128 Ill. App. 3d 

602, 610, 470 N.E.2d 1047 (1984). We conclude that the probate 

court did not err in finding that respondent's conduct justified 

an award for punitive damages where he used his position as a 

Chicago police officer to gain Hoellen's trust and confidence, 

exert undue influence over him, and then flagrantly and 

intentionally breach the fiduciary duty he owed him. We agree 

with the views expressed by the reviewing court in Central BankGranite City v. Ziaee, 188 Ill. App. 3d 936, 948, 544 N.E.2d 1121 

(1989), which when presented with a similar issue stated, "[w]e 

cannot think of a situation more deserving of an award of 

punitive damages than the case at bar in order not only to punish 

defendants, but also to deter others who might consider duping a 

senile and lonely octogenarian." 

Accordingly, for the reasons set forth above, we affirm the 

orders of the circuit court of Cook County. 

Affirmed. 

GARCIA, P.J., and SOUTH, J., concur.