The Truth and Unfortunate Fact is That here Exist Attorneys and Judges That Violate the Public Trust in this State!
The decision rendered by Honorable Judge Winkler was knowingly made with partiality to the Defendants and their counsel in violation of the applicable statue (s), case law and secondary law for summary judgment motions and as such denied the Plaintiff of his State and Federal Guaranteed Civil and Constitutional Rights.
There is an undeniable necessity for the Illinois Judiciary and the ARDC when it is made apparent to actively pursue the legal provisions made to dissuade, rectify and remedy circumstances like the Plaintiff whom have been unjustly victimized by Officers of the Court that very ones they sought to facilitate justice.
JUSTICE OR JUST USMiscarriage of Justice Illuminated In Detail
My Father Gerald Guice Sr.
My Father Gerald Guice Sr. Was born on November3,1940. During this time America was fraught with the blight of prejudices i.E. Segregated Schools and White and Colored water fountains. Despite this fact Gerald Guice Sr. Surmounted these impediments and due to hishard
work and tenacity founded a company now called Sentinel Technologies that is presently one of
the largest computer maintenance companys in the in Mid-West of The United States.
Violations of an Individual Constitutionally Guaranteed Rights
Are Violations of Each and Every Americans Constitutionally Guaranteed Rights
Gerald Guice Sr. Had the right to have his Testamentary Documents honored by
Stephen L. Schar following the law of in the Illinois Probate Act and not have them ignored by employing some whimsical legally prohibited factually unsupported tactics and Gerald Ace Guice Jr.
The Plaintiff has the right of Due Process.
The Defendant Presented False Testimony to the Probate Court:
1. That DAncona & Pflaum were representing the Guice Children collectively.
2. That there was a gift that of 1,033, 333 shares of Vasco stock gifted by the Decedent
to his children that was agreed and accepted on Memorial Day 1999.
3. That pursuant to this Nominee agreement that Schar drafted Mrs. Butler held on to the shares gifted to Gerald and Terrance on Memorial Day 1999.
4. Schar tells Probate Court that Gerald and Terrance had knowledge of this alleged gift of 1,033, 333 shares of Vasco stock gifted by the Decedent on Memorial Day 1999. When in fact:
A. Mrs. Butler states that it was Schar who advisedher that shares of Vasco stock a gift.
B. The Plaintiff told Schar He had no knowledge of a gift whatsoever.
C. Terrance had no knowledge of a gift.
5. The Defendant Schar fabricated and falsified circumstances in documents that he
prepared and presented to the Estates attorney Robert Romanoff alleging a gift
from the Decedent. There was no gift from the Decedent of any stock Vasco Stock
on Memorial Day 1999
Please Note: The Defendant Mr. Stephen L. Schar throughout the Probate of the Decedents Estate in answer to the direct inquiry of the Estates attorney Robert Romanoff falsely alleged a valid inter vivos gift of from the Decedent of 1,033, 333 on Memorial Day 1999
Supported Facts in Record
(1) Mrs. Butler was the only one with any knowledge of this alleged gift and she conceded
in her deposition that there was no gift of Vasco Stock received from
the Decedents children on Memorial Day 1999 as her attorney Stephen L. Schar
alleged.
(2) When Schar inquired of the Gerald Guice Jr. S knowledge of this gift, the Plaintiff
told Schar that he had no knowledge of a gift of Vasco stock Schar
subsequently altered Gerald Guice Jr. S testimony and misrepresented it to the
Estates attorney Robert Romanoff that on Memorial Day 1999 the Plaintiff and
his brother Terrance Guice knew of and agreed upon 1,033, 333 shares of Vasco
stock being gifted from the Decedent to Dana Butler as nominee.
(3) Because the Decedent resided and worked in Ghana West Africa, under Illinois Probate
Statue there was no need for the Defendant to unlawfully perpetrate fraud against the Estate to fulfill the Decedents wishes. (755 ILCS 5/7-6)
(4) The legal principle of the Defendants Retained Experts opinion supported by Schars
third affidavit regarding a Chicago Safety Deposit Box that Schar alleged his client told him that she had both keys is a confession adequate to prove that a valid inter vivos gift was not and could not exist in this matter because:
(a) Mrs. Butler was a fiduciary of the Decedent and as a matter of law anything she said
for her benefit is presumed fraudulent under Illinois case law
(b) The Decedent had a key and access to the safety deposit box where the actual stockcertificates were located till he died and Mrs. Butler did not have both keysto the safety deposit box where the stock power stock certificates were located. Estate of Stahl, 13 III. App. 3d 680, (1st Dist. 1973): (r. C02031)
(5) Schar without the Plaintiffs knowledge presents false testimony to Robert Romanoff the Probate Attorney and the Probate Court of the Decedent in Motion to Compel the Estate to pay for a Gift tax in excess of $1,500, 000.00 alleging that 1,033, 333 shares of Vasco stock was gifted by the Decedent on Memorial Day 1999 when:
(a) The false statements of Schar ignored Decedents testamentary wishes.
(b) The false statements of Schar resulted in unequal distribution of the residuary.
(c) The false statements of Schar resulted in the insolvency of the Decedents Estate.
(d) The false statements of Schar resulted in the failure of Decedents businesses.
(e) The false statements of Schar resulted in the loss of lands and property.
(6) Because of Schar alleging that he was representing the Guice children collectively. The
Executor incorrectly presumes that the Plaintiff although Agent of the Decedents Estate is in collusion with Mrs. Dana Butlers effort to Concealed, converted, or embezzled Estate
assets away from the Supervised Estates control.
(7) In the Legal Malpractice Case Honorable Judge Winkler arbitrary requirement that the Plaintiffs Expert testimony of Robert Romanoff be in affidavit form and his refusal to acknowledge the confession of the Defendant that proved Plaintiffs causes of action and conformed to Illinois Supreme Court Rule 213 (f), ILCS 5/1-109and Honorable Judge Winkler requisites which he arbitrarily ignored in rendering an unlawful summary judgment decision.
Mr. Doug Weingarten filed a Motion to Compel the Production of Documents and Plaintiffs Motion To Extend Briefing Schedule and For Leave To File Affidavits Defendants in their Sur-Reply in Opposition To Plaintiff Motion To Compel successfully argued that they did not represent the Plaintiff and the Judge decided that he would not compel the Defendants to provide these much needed documents to the Plaintiff.
ISSUE
At the foundation of this entire Legal Malpractice matter is Stephen L. Schars Factually and Legally Unsupported Assertionduring Decedents Probate proceedings
(After interviewing the Plaintiff and having a copy of the Decedents testamentary documents)
That the Decedent Gerald Guice Sr. Made a valid inter vivos gift of 1,033, 333 shares of Vasco stock to his client Mrs. Dana Butler the Decedents youngest child on Memorial Day 1999 for the benefit of her brothers.
The Defendants legal position supported by their Retained Expert is,
The degree of and skill commensurate with the care and skill of reasonable and careful Probate attorneys practicing law in Cook County:
a. Dramatically compromises and unevenly distributes the residuary proceeds the beneficiaries receive and Ignores a Decedents Testamentary Documents
b. Attempts to employ Legally and Factually unsupported strategies
c. Falsifies his clients testimony that he presents to the Illinois Probate Court
d. Fails to adhere to The Rules of Professional Conduct, The ILCS, Illinois Supreme Court Rules, The Rules of Civil Procedure and The ADA.
E. Fails to inform clients of all material matters including conflicts of interest
f. Fails to present essential evidence to the court about a Decedents residence
g. Leaves the Estate insolvent and incapable of protecting the Estates assets
h.incurs additional legal expenses and Incurs additional taxes
i. Causes conflict within the family of the Decedent
The Defendants attorneys falsely allege that the Plaintiffs Independent Expert
Witnesses listed in the Plaintiffs Answers to the Defendants Interrogatory was not provided to the Defendant pursuant to Illinois Supreme Court Rule 213 (f) and that the experience and credentials of the Independent Expert Robert Romanoff the Cook County Probate attorney of
the Decedents Estate along with other attorneys, the confession of the Defendant, the testimony of the Defendants retained witness, the sworn testimony of the Defendants clients (Mrs.
Butler and Gerald Guice Jr.) The Mentor Valuations Group opinion and the Illinois Supreme Court Rule 191 compliant Agent of the Estates Sworn Declaration of Gerald Ace Guice Jr. With attached
exhibits is not adequate to prove that Schar failed his duty to represent Gerald Jr. With the degree of and skill commensurate with the care and skill of reasonable careful attorneys practicing law in Cook County.
Rules
735 ILCS 5/2-1005,5/2-619 and 5/2-301b which require that the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005 (c) The Party has the right to a trial if there is a genuine issue of fact, the right of the moving party to summary judgment must be clear and free from doubt, and the granting
of the motion cannot be a matter of judicial discretion. (117 Ill. App. 3d 933,
939,453 N.E. 2d 1133,1136, 73 Ill. Dec. 144,147) (Manahan.)
The purpose of summary judgment is not to try a question of fact, but rather to determine whether a genuine issue of material fact exists. Bagent v. Blessing Care Corp., 224 Ill. 2d 154,162, 308 Ill. Dec. 782,862n. E. 2d 985 Bagent v. Blessing Care Corp., 224 Ill. 2d 154,162, 308 Ill. Dec. 782,862n. E. 2d 985 ; Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511,517, 190 Ill. Dec. 758,622 n.E. 2d 788 (1993)
Summary judgment is appropriate only where 228Ill. 2d 404, *417,888 N.E. 2d 1,8, 320 Ill. Dec. 784,792) the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005 (c) (West 2002). 228 Ill. 2d 404,417, 888
N.E. 2d 1,9, 320 Ill. Dec. 784,792) In determining whether a genuine issue as to any material fact exists, a court must construe the pleadings, depositions, admissions, and affidavits strictly
against the movant and liberally in favor of the opponent. A triable issue precluding summary judgment exists where the material facts are disputed or where, the material facts being undisputed, reasonable persons might draw different inferences from the undisputed facts.
Argument
Sworn Answers to Plaintiffs Second Amended Complaint
The Defendants sworn Answers to the Plaintiffs attorney Doug Weingartens Second Amended Complaint the Plaintiffs, Answers to Interrogatories and Defendants sworn answers to Interrogatories was the basis of the Amended Motion for Summary Judgment. The Plaintiff argued two causes of action founded on the Defendants Duty to the Court, the Duty owed to the Plaintiff as a paying client, the Duty owed to Plaintiff as an intended beneficiary of the
Decedents Estate and the Duty owed as an intended third party retained to benefit from the Defendants services.
To both counts in Schar sworn answers he denies any negligent acts and omissions and denied he had the duty to represent Gerald Jr. With the degree of care and skill commensurate with the care and skill of reasonably careful attorneys practicing law in Cook County and any breach of duty thereof on the basis that Defendant did not represent Gerald Ace Guice Jr.
In Opposition to Plaintiffs Motion to Compel Production of Documents the Defendants counsel successfully pled the legal position that the Defendant did not represent Gerald Ace Guice Jr.
After the Plaintiff filed the Amended Summary Judgment Motion the Defendants New Legal Position in violation of 735 ILCS 5-1-109 contradicting Schars first two Affidavits the Verified Answers to the Second Amended Complaint, and the Defendants Sur-Reply In Opposition To Plaintiffs Motion to Compel Production of Documents is:
Negligent
The Defendant represented the client at the beginning of the Decedents Probate proceedings
When defendants, in their original verified answer, admitted all material allegations which were necessary to support summary judgment for plaintiffs in breach of contract action, and defendants later moved to amend their answer, averring that their original answer failed to contain certain allegations due to inadvertence, but amended answer failed to disclose that original sworn admissions were a product of inadvertence, defendants merely abandoned the sworn admissions contained in their original answer without sufficient explanation, and thus trial court properly considered the judicial admissions in defendants' original verified answer, and since judicial admissions were conclusive as to defendants' liability, summary judgment was properly granted. American Nat. Bank and Trust Co. Of Chicago v. Erickson, App. 1 Dist. 1983,72 Ill. Dec. 71,115 Ill. App. 3d 1026,452 N.E. 2d 3
Mrs. Butler admits in her deposition there was no gift of Vasco Stock received from the Decedent on Memorial Day 1999 as her attorney Stephen L. Schar alleged; in addition she acknowledged Schar made false statements in documents he presented to the Probate Court in Motion to Compel Payment of Gift Tax stating that the Plaintiff had knowledge of the alleged gift when Plaintiff informed Schar he had no knowledge of this gift.
The Mrs. Butler and Gerald Ace Guice Jr. Depositions showed that Schar knowingly provided inaccurate and/or false testimony with reference to Mrs. Butlers and the Plaintiffs knowledge of this gift alleged by Schar which Schar presented to the Probate Court in the Motion to Compel the Estate to pay to the IRS a Gift Tax which was not entirely refunded.
Duty
The statement of the Defendants attorney stating that we can assume his client represented the Plaintiff at the beginning of the relationship confirms the duty owed to the Plaintiff at the time Schar alleged the Vasco gift which is one of the elements needed in support of a legal malpractice case
Breach of duty The Defendants Judicial Admissions is a confession of employing a legally and factually unsupported Valid Inter Vivos Gift that he presented to the Probate court and their failure to provide any witnesses that possessed any knowledge of the Decedents intent and delivery of 1,033, 333 shares of Vasco Stock gifted on Memorial Day 1999 quite literally confessions of liability Furthermore In Violation of the Illinois Supreme Court Rules the Rules of Professional Conduct and ILCS Schar made false statements to the Probate Court and officers of the court.
Proximate Cause is the effect of the Defendant diverting an Estate asset away from the Court Supervised Executor of the Estate. The Estate did not realize its potential value because the 1,033, 333 shares of Vasco Stock were not under the control of the Supervised Executor. The Plaintiff using the Defendants documents accessing the after tax amount of the proceeds from the sell of the Vasco Stock shares and establishes that but for the negligence of Schar the Decedents Trust would have been honored and the Estate residuary would not have been compromised and unevenly distributed. Plaintiff also provides the Mentor Valuation Group advising the Executor how to manage the sale of the Vasco Stock. These two exhibits are two methods to proving the:
Actual damages this final element needed to prove this cause of action is the actual damages which are stated in detail again using the Defendants figures not including interest and possible sanctions conclude these damages are in the amount to $3,543, 442.56
Not only did Honorable Judge Winkler refuse to acknowledge the Schar admissions he knowingly made a higher requisite for the Pro Se Plaintiffs Summary Judgment Motion than the Defendants Cross-Motion for Summary Judgment by arbitrarily allowing concessions in favor of the Defendants counsel while making the legally unrequired demand of the Plaintiffs sworn Independent Expert Witness Testimony be in affidavit form while accepting the Defendants retained experts testimony that was neither in the form of affidavit, sworn to or based on the facts
The Defendant Schar in his sworn answers to the Plaintiffs Second Amended Complaint and in sworn affidavits states emphatically that he was not representing the Plaintiff. The Defendants Denial of a legal Duty because the Defendant did not represent the Plaintiff is the basis of the Defendants entire defense; nevertheless Schar still had a third party liability as the Plaintiff was a listed beneficiary of the Decedents Estate and as an intended beneficiary of the Schar work. This is the liability that the Plaintiff used to support his Motion for Summary Judgment
If a party is an intended beneficiary of the attorney-client relationship, even though the party is not the client, the attorney owes a duty of due care to that intended third-party beneficiary. An example of an intended beneficiary is the heir to an estate when the attorney-client relationship existed between the decedent and the attorney. Petersen v. Wallach, 198 Ill. 2d 439,764 N.E. 2d 19,261 Ill. Dec. 728 ; Wisdom v. Neal, 568 F. Supp. 4 (d.N.M. 1982)
I. The Defendants and/or his counsel denying and later acknowledging that he represented Gerald Jr. Confirms that they made false statements in affidavit and in answers to Second Amended complaint in violation of Sec. 1-109.
Sec. 1-109. Verification by certification Any person
who makes a false statement, material to the issue or point in question, which
he does not believe to be true, in any pleading, affidavit or other document
certified by such person in accordance with this Section shall be guilty of a
Class 3 felony.
II. Honorable Judge Winkler allows Defendants attorney to file a cross-motion foundationally
based on genuine issues of material facts Summary judgment is appropriate only where 228 Ill. 2d 404, *417,888 N.E. 2d 1,8, 320Ill. Dec. 784,792) the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law. 735 ILCS 5/2-1005 (c) (West 2002). 228 Ill. 2d 404,417, 888
N.E. 2d 1,9, 320 Ill. Dec. 784,792)
III. The Defendants attorney is allowed to file Cross-motion foundationally based on contradictory
judicial admissions which is prohibited. The Defendant in affidavits, cross-motion for summary judgment, and oral arguments made are Judicial Admissions Where made, judicial admission may not be contradicted in motion for summary judgment.in re Estate of Rennick, 181 Ill. 2d 395,692 N.E. 2d 1150,229 Ill. Dec. 939, Ill., January 29,1998 (NO. 82872). App. 3d 627,701 N.E. 2d 207,233 Ill. Dec. 564, Ill. App. 1 Dist., September 30,1998 (NO. 1-97-2422)
Honorable Judge Winklers Double Standard Allows Defendant Prohibited Legal Concession
Of Contradicted Judicial Admissions And Genuine, Issues of a Material Fact
Honorable Judge Winkler allows the Defendants attorney to fraudulently state that there was no genuine issue of a material fact
Summary Judgment
The Summary Judgment is appropriate when the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Forsythe v. Clark USA, Inc., 224 Ill. 2d 274,280, 309 Ill. 361,864 n.E. 2d 227 Summary judgment is appropriate where the pleadings, affidavits, depositions and admissions on file, when viewed in a light most favorable to the non moving party, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Notwithstanding principles that summary judgment should be free from doubt, and that if pleadings, affidavits and exhibits show that there is genuine issue as to any material fact, summary judgment must not be granted, summary judgment is a procedure to be encouraged, and one which can avoid the expense of unnecessary trial and ease congestion on the trial calendar (Tom Olesker's Exciting World of Fashion, Inc. V. Dun & Bradstreet, Inc., 71 Ill. App. 3d 562,390 N.E. 2d 60,28 Ill. Dec. 78, Ill. App. 1 Dist., April 23,1979 (NO. 78-910)
Summary judgment should not be allowed unless the moving party's right to judgment is clear and free from doubt. Forsythe, 224 Ill. 2d at 280,309 Ill. Dec. 361,864 n.E. 2d 227. If the undisputed facts could lead reasonable observers to divergent inferences, or if there is a dispute as to a material fact, summary judgment should be denied. Forsythe, 224 Ill. 2d at 280,309 Ill. Dec. 361,864n. E. 2d 227
Honorable Judge Winkler deliberately ignored the obvious estopped contradictory positions of the Defendant that the Plaintiff exposed during Oral Arguments
The Defendant is judicial estopped from taking contradictory position; although estoppel is flexible and not reducible to a formula, the following five elements are generally necessary: (1) The two positions must be taken by the same party; (2) The positions must be taken in judicial proceedings; (3) The positions must be given under oath; (4) The party must have successfully maintained the first position and received some benefit; (5) The two positions must be totally inconsistent. Ceres Terminals, Inc., 259 Ill. App. 3d at 851; Trombello v. United Airlines (In re Air Crash Disaster at Sioux City), 259Ill. App. 3d 231,238-39,631 N.E. 2d 1302 (1994); Parisi, 236 Ill. App. 3d at 53-54; Grawe, 113 Ill. App. 3d at 341-42. Because judicial estoppel precludes a contradictory position without examining the truth of either statement, it necessarily eliminates the trial court's role as fact finder. Ceres Terminals, Inc., 259 Ill. App. 3d at 856-57. For that reason, it should be cautiously applied to avoid infringing on the court's truth-seeking function and only when not to do so would result in an injustice. Ceres Terminals, Inc., 259 Ill. App. 3d at 856-57. The application of the doctrine of judicial estoppel will not be reversed unless it was an abuse of the trial court's discretion. Ceres Terminals, Inc., 259 Ill. App. 3d at 856.
A party cannot be allowed to affirm the contrary is true, after affirming a fact under oath.
Ceres Terminals, 259 Ill. App. 3d at 854; Finley v. Kesling, 105 Ill. App. 3d 1,9, 433 N.E. 2d 1112 (1st Dist. 1982).
Judicial estoppel can even apply in instances where the party is not under oath. Coe, 112 Ill. App. 3d at 510.
A party with earlier success in theprior proceeding is judicially estopped from harming the courts integrity by later self-contradicting conduct. Id. At 509. It would be totally illogical to allow parties to take one position in an agency proceeding and then allow them to take an inconsistent position in subsequent court proceedings, simply because the first position was not taken under formal oath. Id. At 510-il. This statement evinces the policy of judicial estoppel to be the integrity of the judicial process. Department of Transportation v. Coe reversed the Civil Service Commission and found a formal oath was not required for a judicial admission. Id. At 510
Cross-motions for summary judgment
Cross-motions for summary judgment occur when both parties move for summary judgment. Such cross-motions may be based on different grounds, different counts, or different defenses, or they may focus on the same substantive claims or defenses. Due to the different burdens on the movant and non-movant, where parties file cross-motions on the same substantive claims or defenses, the denial of summary judgment to one party does not necessarily mean that the opposing party's cross-motion for summary judgment will be granted.
The filing of cross-motions for summary judgment does not establish, by itself, that there is no genuine issue of material fact, especially where the opposing motions seek summary judgment upon different issues or theories); Telxon Corp. V. Meyerson, 802 A. 2d 257 (Del. 2002)
The fact that both parties argue for summary judgment does not indicate that there are no genuine issues of material factthe court must rule on each motion separately, in determining as to each whether judgment may be entered in accordance with applicable principles. District 12, United Mine Workers of America v. Peabody Coal Co., 602 F. Supp. 240 (s.D. Ill. 1985); Johnson v.U.S., 927 f. Supp. 36 (d. Conn. 1996), aff'd, 123 F. 3d 700 (2d Cir. 1997) (stating cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and thus the making of such inherently contradictory claims does not constitute agreement that if one is rejected the other is necessarily justified);
Judicial Admissions
Honorable Judge Winkler overlooks the contradicted Judicial Admissions of the Defendants attorney Gerald Saltarelli revealed in oral arguments prohibiting a decision in their favor
Judicial admissions are defined as deliberate, clear, unequivocal statements by a party about a concrete fact within that party's knowledge. Hansen v. Ruby Construction Co., 155 Ill. App. 3d 475,480, 108 Ill. Dec. 140,508 n.E. 2d 301 (1987). Summary judgment was properly stricken, where statement in affidavit conflicted with plaintiff's judicial admissions made in sworn deposition Pandya v. Hoerchler, 256 Ill. App. 3d 669,628 N.E. 2d 1040,195 Ill. Dec. 576, Ill. App. 1 Dist., December 29,1993 (NO. 1-90-3215) The Defendant in affidavits, cross-motion for summary judgment, and oral arguments made are Judicial Admissions Where made, judicial admission may not be contradicted in motion for summary judgment.in re Estate of Rennick, 181 Ill. 2d 395,692 N.E. 2d 1150,229 Ill. Dec. 939, Ill., January 29,1998 (NO. 82872). App. 3d 627,701 N.E. 2d 207,233 Ill. Dec. 564, Ill. App. 1 Dist., September 30,1998 (NO. 1-97-2422)
Where made, a judicial admission may not be contradicted in a motion for summary judgment (Schmahl v.A.V.C. Enterprises, Inc., 148 Ill. App. 3d 324,331, 102 Ill. Dec. 15,499 n.E. 2d 572 (1986) The purpose of the rule is to remove the temptation to commit perjury. Smith v. Ashley, 29 Ill. App. 3d 932,935, 332 N.E. 2d 32 (1975)
"The third point, the issue of representation. We said for purpose of the motion well accept a factual dispute we agree theres a factual dispute a material issue of fact whether initially the firm should be deemed to represent Jerry initially."
Honorable Judge Winkler overlooks The Defendant counsels failure to deny the allegations to the numbered allegation stated in the Plaintiffs Analysis i.E.
Sec. 2-1005. Summary judgments.
(a) For plaintiff. Anytime after the opposite party has appeared or after the time within which he or she is required to appear has expired, a plaintiff may move with or without supporting affidavits for a summary judgment in his or her favor for all or any part of the relief sought.
(b) For defendant. A defendant may, at any time, move with or without supporting affidavits for a summary judgment in his or her favor as to all or any part of the relief sought against him or her.
(c) Procedure. The opposite party may prior to or at the time of the hearing on the motion file counter affidavits. The judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The party moving for summary judgment bears the initial burden of production, and a defendant may meet this burden either by affirmatively demonstrating that it must prevail on an element of the cause of action or demonstrating that the plaintiff cannot produce evidence necessary to support the plaintiff's cause of action, and if the defendant meets this standard, then the burden shifts to the plaintiff to present a factual basis that would entitle the plaintiff to a favorable judgment. Welton v. Ambrose, App. 4 Dist. 286 Ill. Dec. 744,351 Ill. App. 3d 627,814 N.E. 2d 970, rehearing denied, appeal denied 293 Ill. Dec. 869,213 Ill. 2d 577,829 N.E. 2d 794. Judgment 185 (2)
Where the movant is seeking summary judgment based on the Plaintiffs failure to produce an expert in a case where expert testimony is necessary, the Plaintiff must produce the opinion of an expert who testifies in accord with the requirements of the Plaintiff s case. The Plaintiff after discovering that experts testimony does not have to be in affidavit form in his Motion to Reconsider Summary Judgment informed Honorable Judge Winkler that a integral portion of theory in the Plaintiffs case was based on the opinion of Robert Romanoff being included in support of the legal malpractice case however Honorable Judge Winkler refused to acknowledge this and other facts in the record despite the Plaintiff revealing that the Defendants expert witness testimony was neither in an affidavit form, nor was it based on the provable facts in this case.
In deciding the evidence in this case the judicial admissions of the Probate attorney Schar stated in the Schar affidavit and the inferences of the Defendants Retained Expert are adequate to prove the Plaintiff's case however Judge Winkler were arbitrarily ignored their testimony. His action taken by the Courts was unreasonable and unfair.
Where a trial court's order is based on factual conclusions, without evidentiary support a court's ruling on the admissibility of an expert's testimony constitutes an abuse of discretion where the ruling is manifestly arbitrary, unreasonable, or unfair. Fields, 354 S.C. At 451,581 S.E. 2d at 492; Grubbs, 353 S.C. At 379,577 S.E. 2d at 496; Means, 348 S.C.
At 166,558 S.E. 2d at 924.
INDEPENDENT EXPERT TESTIMONY
The Estates attorney Robert Romanoff during Probate makes inquiry of Schar regarding Plaintiffs knowledge of the alleged gift and Schar provides false testimony in documents noted in the Plaintiffs answers to the Defendants Interrogatory The Plaintiffs Summary Judgment legal argument is that with the Independent Expert Witness Testimony of Robert Romanoff, a layman could understand the case.
The Plaintiff refers to Independent Expert Witness that he provided the Defendant several months before in the several places in:
Gerald A. Guice Declaration of the Amended Summary Judgment ie
Paragraph 80 The Executors counsel, Levin & Shredder petitioned the IRS refund the amount of over paid in gift tax The IRS refused to make a total refund of the amount paid as gift tax leaving the Estate of Gerald Guice Sr.insolvent and incapable of paying all outstanding debts
The Plaintiff in his Amended Summary Judgment Motion inserted the Independent Experts Testimony of Robert Romanoff citing Case law and Secondary law in the State of Illinois referring directly to various correspondences between him and the Defendant Schar;
The Robert Romanoff IRS Protest concludes:
The 1,033, 333 shares of Vasco Data Security International (VDSI) was properly included as an asset of the Decedents Estate and the alleged gift on Memorial Day 1999 by the Decedent Gerald Guice Sr. To Schars client Mrs. Dana Butler was not and could not be a valid inter vivos gift in the State of Illinois for lack of intent and lack of delivery.
Robert Romanoff includes the billing of the Plaintiffs attorneys
Tabet, DiVito & Rothstein In the IRS Protest
Using the correct point of view in this matter Honorable Judge Winkler should have treated the Mr. Robert Romanoff testimony Like a treating physician
On consolidated appeal, the Supreme Court, Ward, J., held that:
treating physicians were not expert witnesses within meaning of pretrial disclosure rule; Although treating physicians are not experts within the meaning of Rule 220, their identity is discoverable under Supreme Court Rule 201 (b) (1) (107 Ill. 2d R. 201 (b) (1) 155 Ill. App. 3d 585,108 Ill. Dec. 54,508 n.E. 2d 215, affirmed in one case.). That rule also requires parties to disclose the medical records of treating physicians so that opposing parties may discover the facts and data
underlying the treating physician's opinion. (107 Ill. 2d R. 201 (b) (1).) Moreover, litigants may seek a court order under Supreme Court Rule 204 if they decide that it is necessary to depose a treating physician for an adequate defense. 107 Ill. 2d R. 204 (c).
Mr. Robert Romanoffs opinion illuminated the lack of attention to detail that his colleague and friend employed in pursuit of a legally and factually unsupported effort instead of a legally and factually supported one.
The circumstances of Mr. Robert Romanoff were not enviable. The integrity that Mr. Robert Romanoff demonstrated as an attorney that practices probate law in this State to faithfully provide his honest opinion despite the camaraderie that existed between he and his friend Stephen L. Schar is testament to the higher standard that lawyers should ascribe to in their work and is acknowledged by Mr. Robert Romanoffs peers in his professional and personal life and should not be nullified by Honorable Judge Winklers Judiciary abuse of Discretion!
Included in these Summary Judgment motions is Mr. Robert Romanoffs and Gerald Ace Guice Jr. S sworn testimony and personal knowledge as it relates to the facts and Probate of his Father the Decedent along with various others which together is second to none and is more than adequate to prove the breach of fiduciary duty and the negligent misrepresentation causes of action alleged by Schar.
Judiciary Review of Judge Winkler
A need for a judiciary review in this case as a result of Honorable Judge Winklers discretionary abuses.
I.in deciding in favor of a summary judgment foundationally based on contradicted judicial admissions and genuine issues of material facts in violation of Statue
II. Knowing that the Pro Se Plaintiff is Disabled arbitrarily requiring that the Plaintiffs Independent expert witness testimony be in a formal affidavit format which is not required by the Code of Civil Procedure Section 1-109, and the 28 U.S.C. 1746 allows a written unsworn declaration, certificate, verification, or statement subscribed in proper form as true under penalty of perjury to substitute for an affidavit.
III. Allowing the Defendants retained expert witness testimony that was in violation of Illinois Supreme Court Rule 213
IV. Knowingly accepting the Defendants expert witness testimony that was not supported by the principles of case law or cite any in its conclusion.
V. Knowingly accepting the Defendants retained expert witness testimony that was not based on the specific facts in the record
VI. Knowingly accepting Defendants affidavit testimony that was not supported by Supreme Court Rule 191requiring that the inclusion of supporting attached documents and that the statements be based on facts not conclusions
VII. Honorable Judge Winklers refusal to listen to the Plaintiff during oral arguments despite Plaintiff persistent efforts to explain pertinent details to prove his case.
The Appellate Court Order Acknowledges the Testimony of Robert Romanoff But Refused to Consider its Relevance
The Plaintiff's Independent Expert Testimony of Robert Romanoff's Credentials and Opinion in Every Conceivable Measure Surpasses the Defendants Retained Expert Witness Mr. Bernard T. Wall.
The Defendants Retained Expert Witness Mr. Bernard T. Wall says in his opinion:
To summarize, Mr. Schars advice in late 1999 and early 2000 in response to the facts provided by Ms. Butler was based on a reasonable conclusion that the transfer was a completed gift for federal gift tax purposes and for purposes of Illinois law. Mr. Schar gave this opinion to his clients and advised them to cause the federal gift tax to be paid to avoid potential penalties and interest. His advice protected the economic interests of the decedents children by avoiding their personal liability for the gift tax, penalties and interest and by preventing the surviving spouse from claiming a statutory share of the 1,033, 333 shares of Vasco stock. Accordingly, it is my opinion that the representation by Mr. Schar and DAncona & Pflaum, LLC was that of a reasonably careful attorney practicing in the trust and estates field.
The Robert Romanoff Opinion:
The entire block of Vasco stock should be included as an asset of the Decedents taxable estate. Vasco stock was not and could not be a valid gift
The Transfer of Vasco Stock Was Invalid Under Illinois Law
The Transfer of Vasco Stock Was Not A Gift I. The Transfer Was Not A Gift Under Illinois Law
The safe-deposit box at Charter One Bank that was titled in both her name and in the name of the Decedent, and that she did not remove the stock certificates until after her fathers death. Since the safe-deposit box was titled in his name, Gerald Guice, Sr. Had the right to remove any of the contents from the safe-deposit box until the time of his death. Based upon the Illinois Appellate Courts reasoning in Stahl, there was not a valid delivery of the stock certificates to Dana Butler.
(Page 6 IRS of Protest)
The issue of delivery is complicated when the item which has allegedly been transferred to the donee remains within a safe-deposit box subject to the control of the donor.in Stahl, supra, the Illinois Appellate Court concluded that the petitioners claim that she was given the contents of the decedents safe-deposit box was not valid because the decedent had retained a key to the safe-deposit box. The court held that, because the decedent had the ability at any time prior to his death to withdraw the contents of the safe-deposit box, there was not sufficient delivery of the property. Since the burden was on the petitioner to establish clear and convincing evidence of the alleged gift, the Illinois Appellate Court concluded that the decedent did not effectuate a valid inter vivos gift. Stahl, 13 Ill. App. 3d at 684. See also, Estate of Wilson, 404 III. 207,88 n.E. 2d 662 (1949)
Judge Winkler Violation of ADA
In this case the Honorable Judge Winkler with knowledge that the Plaintiff is Disabled in part due to a severe brain injury makes unnecessary requests that were done to confuse the Plaintiff in effort to deliberately deprive the Plaintiff of his Constitutional Guaranteed right to call witnesses by requiring that the Plaintiffs independent expert testimony be in a formal affidavit form and allowing the Defendants Retained Expert that was not in affidavit form or based on the facts is clearly a violation of the ADA.
Honorable Judge Winkler had before him the Disability decision and the opinion of Ricardo Seno a renowned Doctor for head injuries who stated that the Plaintiff May have problems understanding legal matters.
The opinion of Ricardo Seno and other Doctors who treated the Plaintiff in the Disability Decision provided both a quantitative and qualitative diagnosis at the time of Plaintiffs mental condition due to a near fatal motorcycle accident. Judge Winkler had an obligation not to discriminate under the ADA by making any unnecessary request to prove the Plaintiffs case Honorable Judge Winkler surely knew that:
Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true. Any pleading, affidavit or other document certified in accordance with this Section may be used in the same manner and with the same force and effect as though subscribed and sworn to under oath.
ADA Specific Prohibitions
(A) Discrimination For purposes of subsection of this section, discrimination includes
1) The imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally
enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered;
2) A failure to make reasonable modifications in policies, practices, or procedures,
when such modifications are necessary to afford such goods, services,
facilities, privileges, advantages, or accommodations to individuals with
disabilities, unless the entity can demonstrate that making such modifications
would fundamentally alter the nature of such goods, services, facilities,
privileges, advantages, or accommodations
Conclusion
Gerald Guice Sr. Had the right to have his Testamentary Documents honored by Stephen L. Schar following the law of in the Illinois Probate Act and not have them ignored by employing some whimsical legally prohibited factually unsupported tactics.
The Plaintiff has the right of Due Process, and Violations of an individual Constitutionally Guaranteed Rights are a violation of each and every Americans Constitutionally Guaranteed Rights.
Butler, Rubin, Saltarelli & Boyd are a powerful prestigious law firm however they too must abide by The Law and The Rules of Professional Conduct!
The concessions that Judge Winkler allowed for the Defendant are in violation of the United States Constitutional guarantee of procedural due process; the ILCS, and in violation of the American with Disability Act which guarantees access for the disabled and forbids discrimination against a disabled person under the color of law.
Furthermore, it is unfathomable had the Plaintiff been an attorney Judge Winkler would as in this case knowingly allow an attorney to procure advantage by deceit.
The Breach of duty Scha
r alleged he did this so to affect the Decedents wishes that step mother would not get anything however Illinois case law prohibits these tactics this judicial admission in the Third Schar affidavit stated in support of the Defendant cross-motion for summary judgment proves this element: Where present donative intent exists, the transfer is valid and effective to defeat the marital interest. Where present donative intent is absent, the transfer is treated as a disposition by will and is not effective to defeat the marital interest. Mocny, 257 Ill. App. 3d 291,196 Ill. Dec. 390,630 n.E. 2d 87 (1993); Mocny, 257 Ill. App. 3d 291,196 Ill. Dec. 390,630 n.E. 2d 87
The Mrs. Butle
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