Appendix — Dick v. Commerce Bancshares, Inc.

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Appendix

TABLE OF CONTENTS OF THE APPENDIX

Page

Oct. 6, 1999 Order of the Illinois Supreme

Court (denying leave to appeal) 1

June 14,1999 Order of the Illinois Appellate

Court (judgment sought to be

reviewed) 2

Dec. 17,1998 Stipulation as to Agreed

Statement of Facts in Lieu of

a Report of Proceedings 16

Oct. 29,1998 § Order of the Circuit Court,

(Vol. Ill, C-657) 19

Sept. 28,1998 Order of the Circuit Court,

(Vol. I, C-487) 20

Complaint filed April 22, 1998 (Vol. I, C-5), 22

Exhibit "A, Will of George F.

Dick, Jr. (Vol. I, C-18) 36

Exhibit "B," Eight (8) Stock

Holders Ledger Pages,

(Vol. I, C-21) 42

Exhibit "C," April 21, 1998

Affidavit (Vol. I, C-29) 50

Plaintiff's Exhibit "J," October 19, 1998 Affidavit

(Vol. Ill, C-636) 52

(continued)

Appendix

Il.

EXHIBITS FILED IN THIS CASE WHICH ARE

REPRODUCTIONS OF DOCUMENTS FILED IN

PEOPLES BANK'S 1982 ACTION

AGAINST GEORGE F. DICK Ill

Page

Plaintiff's Exhibit "D" (Vol. I, C-73), Peoples

Bank's 1982 Pleading Entitled

"Construction of Testamentary

Trusts." 53

Plaintiff's Exhibit "E" (Vol. II, C-448), Order Filed

February 22, 1984, as to Bene-

ficiary Helen A. Dick's Lack of

Standing in the Main Case. 67

Plaintiff's Exhibit "F" (Vol. II, C-450),

Summary Judgment Order

Filed March 2, 1984. 68

Plaintiff's Exhibit "I" (Vol. II, C-457),

March 14, 1984 Record Sheet

Entry Made by Judge Baner. 71

Defendants' Exhibit #6 (Vol. I, C-164),

Dismissal Stipulation Between

Peoples Bank and George F.

Dick Ill (undated) 72

---with Attached Order Entered

March 14, 1984. 73

LETTITTTT ATT

Appendix

SUPREME COURT OF ILLINOIS

CLERK OF THE COURT

SUPREME COURT BUILDING

SPRINGFIELD, ILLINOIS 62701

(217) 782-2035

87821

October 6, 1999

Ms. Helen A. Dick

3323 13th Avenue Court

Moline, IL 61265

No. 87821 - Helen A. Dick, petitioner, v. Commerce

Bancshares, Inc., et al., respondents. Leave to appeal,

Appellate Court, Fourth District.

The Supreme Court today DENIED the petition

for leave to appeal in the above entitled cause.

The mandate of this Court will issue to ose Appellate

Court on October 28, 1999,

Appendix

No. 4-98-0921

IN THE APPELLATE COURT OF ILLINOIS

FOURTH DISTRICT

HELEN A. DICK, Appeal from

Plaintiff-Appellant, Circuit Court of

v. McLean County

COMMERCE BANCSHARES, _ No. 98-CH-56

INC.; CBI-ILLINOIS, INC.;

and PEOPLES MID-ILLINOIS Honorable

CORPORATION, William D. DeCardy

Defendants-Appellees. § Judge Presiding.

ORDER

[filed June 14, 1999}

Plaintiff Helen A. Dick appeals pro se from the

orders of the circuit court of McLean County (1)

dismissing her complaint against defendants Commerce

Bancshares, Inc.; CBI-Illinois, Inc.; and Peoples Mid-

Illinois Corporation pursuant to section 2-619 (a) (4) of

the Code of Civil Procedure (Code) (735 ILCS 5/2-619

(a) (4) (West 1996)); (2) directing her to pay sanctions

in the amount of $6,757.40; and (3) enjoining her from

bringing any further causes of action pertaining in any

way to the shares of stock or the transfers thereof that

are the subject of the complaint. Plaintiff has paid the

sanctions. Plaintiff's issues are whether (1) the alleged

fraudulent concealment of the cause of action prevents

the application of principles of res judicata or collateral

estoppel; (2) her right to due process had been

violated; and (3) the award of sanctions amounted to an

abuse of discretion. Taken with the case was

defendants' motion for sanctions for pursuing a

frivolous appeal, filed pursuant to Supreme Court Rule

375 (b) (155 Ill.2d R. 375(b)) and plaintiff's response

thereto. We affirm and remand to the trial court for a

cena Beep ee -

eR eee $

eA G ale

Appendix

determination of the amount of sanctions to be imposed

pursuant to Supreme Court Rule 375(b).

The complaint attempted to allege a cause of

action for failure to disclose the proper remedy under

which plaintiff was to proceed to replace shares of

stock in Peoples Bank of Bloomington (Peoples Bank)

and recover dividends declared, with interest. In a

number of previous appeals, this court has set forth the

facts regarding what happened to the shares of stock in

the estates of George F. Dick, Jr. (George Jr.) and

Althea M. Dick (Althea), plaintiff's adoptive parents,

and the acts and omissions of George F. Dick III

(George III) and Peoples Bank, trustee and successor

trustee, respectively, of the trusts created under those

estates. See Peoples Bank v. Dick, 135 Ill.App.3d_ 1170,

496 N.E.2d 1279 (1985) (unpublished order under

Supreme Court Rule 23) (Dick I); Dick v._ Dick, 169 Ill.

App. 3d 75, 540 N.E.2d 583 (1988) (unpublished

order under Supreme Court Rule 23) (Dick Il); In re

Estate of Dick, 187 Ill. App. 3d 77, 543 N.E.2d 339

(1989) (Dick III); Dick v. Peoples Mid-Illinois Corp.,

195 Ill. App. 3d 654, 552 N.E.2d 385 (1990) (Dick IV);

Dick _v. Peoples Mid-Iilinois Corp., 242 Ill. App. 3d

297, 609 N.E.2d 997 (1993) (Dick V); Peoples Bank v.

Dick, No. 4-94-1069 (March 15, 1995) (order of

dismissal) (Dick VI); Peoples Bank v. Dick, 286

Iil.App.3d 1147, _ N.E.2d __ (1997) (unpublished

order under Supreme Court Rule 23) (Dick VII).

Because this court and the parties are fully aware of the

facts, they will be discussed only as necessary for an

understanding of this court's disposition.

In September 1982, Peoples Bank, as successor

trustee, brought an action against George III, as former

trustee, in which it was determined that the transfer of

shares to George III prior to Althea's death on October

10, 1976, violated the provisions of George Jr.'s will. In

that action, George III was directed to account for all

Appendix

shares between March 31, 1959, and October 10, 1976.

Prior to the accounting being prepared, Peoples Bank

and George III settled. Plaintiff, who was a defendant

and counterclaimant against George III in that case,

attempted to challenge the settlement on appeal, but

was prevented from doing so because she had not

challenged the propriety of the settlement in the trial

court. Dick I, 135 Ill. App. 3d 1170, 496 N.E.2d 1279

(unpublished order under Supreme Court Rule 23).

Subsequently, plaintiff unsuccessfully attempted to

open the estates of both of her parents. Dick II, 169

Ill. App.3d 1175, 540 N.E.2d 583 (unpublished order

under Supreme Court Rule 23); Dick IL, 187 Ill.App.3d

77, 543 N.E.2d 339. Those actions were barred by the

application of the doctrine of res judicata. In May 1989,

plaintiff sued Peoples Bank for breaching its fiduciary

duty as trustee to her by, among other things, not

informing her of facts necessary for her to protect her

interests as beneficiary. One of the defendants in that

case was Peoples Mid-Illinois Corporation, the holding

company of Peoples Bank. Dick IV, 195 Ill.App.3d at

655-58, 552 N.E.2d at 386-88. This court reversed in

part the dismissal of plaintiff's complaint and remanded

to allow plaintiff to pursue an action to recover for

alleged violations of fiduciary duties owed to her by

Peoples Bank as successor trustee. Dick IV, 195

Ill. App.3d at 660, 552 N.E.2d at 389.

On remand, plaintiff amended her complaint to

allege two counts. In Count I, plaintiff alleged Peoples

Bank breached its fiduciary duty by retaining shares of

the holding company as an investment of the trust, the

interest of the hoiding company in accumulating profits

instead of paying cash dividends conflicted with the

interests of persons having a beneficial interest in the

shares of the holding company, and the trust suffered

great losses while the holding company benefitted as a

result of the alleged breach of fiduciary duty by Peoples

CE Re ee See eves

- he nates

See ee

Ces ee cee

i — —_

= yer te ee

Appendix

Bank. In Count II, plaintiff alleged Peoples Bank

breached its fiduciary duty by failing to inform her of

facts relating to actions taken by George III, including

his voting for stock dividends and splits of holding

company stock while he was chairman of the board of

directors of Peoples Bank; falsely representing to her

that it "lost" one count of its 1982 complaint against

George III; failing to file an action against George III

for four years within the date of his resignation as

trustee; failing to inform her of facts surrounding the

settlement agreement; and failing to serve her with

undivided loyalty. Dick V, 242 Ill.App.3d at 300-02,

305, 609 N.E.2d at 1000-01, 1003. This court

determined that Peoples Bank could not have breached

any duty owed to plaintiff by retaining stock in a

holding company as an investment or by allowing

George III to vote shares of the holding company stock

because both of those acts were expressly provided for

by George Jr.'s will. This court further determined that

the only cause of action plaintiff could state on Count II

revolved around the alleged failure to disclose the

settlement agreement and plaintiff was absolutely

barred from relitigating that issue. This court also

found that plaintiff had not alleged any cause of action

against Peoples Bank as successor trustee for failing to

inquire into any improper activities of the predecessor

trustee because Peoples Bank had properly done all

those things that it was obligated to do as a successor

trustee by pursuing the 1982 action against George III.

As a result, the dismissal of plaintiff's complaint for

failure to state a cause of action was affirmed. Dick V,

242 Ill.App.3d at 304-06, 609 N.E.2d at 1003-04.

In the case at bar, plaintiff's complaint alleged

that Peoples Mid-Illinois Corporation and its successor

holding companies were unjustly enriched by the

failure to disclose or the fraudulent concealment of the

existence of a cause of action against the holding

Asay

Appendix

company by not telling her that Peoples Bank could not

sue its parent. According to the complaint, the

information was concealed by reason of the nature of

the pleadings Peoples Bank filed in the earlier actions

and by the settlement with George III. The complaint

alleged the following facts concerning the relationship

of the various defendants. On March 1, 1995, as a result

of a pooling of interests, Commerce Bancshares, Inc.,

acquired Peoples Bank and changed its name to

Commerce Bank, Bloomington, Illinois. On March 8,

1995, Peoples Mid-Illinois Corporation merged into

CBI, Illinois, Inc. Effective May 10, 1996, Commerce

Bancshares, Inc., was allowed to _ consolidate

Commerce Bank, Bloomington, Illinois, into Commerce

Bank, National Association.

Defendants filed a combined motion to dismiss

pursuant to section 2-619.1 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-619.1 (West 1996)) on

the grounds (I) plaintiff's complaint failed to state a

cause of action (735 ILCS 5/2-615(a) (West 1996)), (2)

the action was barred by prior order of this court (Dick

IV, 195 Ill. App.3d at 659, 552 N.E.2d at 389), and (3)

the action was barred by the statute of limitations (735

ILCS 5/2-619(a) (5) (West 1996)). In response to the

motion, plaintiff argued, among other things, that the

action was not barred by collateral estoppel. Although

the defendants filed a series of documents in support of

their motion for sanctions, no affidavits were filed in

support of or in opposition to the portion of the motion

made pursuant to section 2-619(a) (5).

An agreed statement of facts filed with this

court indicates that no witnesses testified at the hearing

on the motion to dismiss. Plaintiff described to the trial

court that her case was an action to recover shares of

stock in Peoples Bank held in a constructive trust

imposed in McLean County case No. 82-CH-124 on

March 2, 1984, which was Peoples Bank's action against

Appendix

George III. In response to [defendants'] assertion of res

judicata as a basis for barring the action, plaintiff

argued that defendants had not raised res judicata as a

bar to the action in the written motion to dismiss. The

trial court construed the second paragraph of

[defendants'] combined motion to dismiss as alleging

res judicata and took the matter under advisement. On

September 28, 1998, the trial court dismissed plaintiff's

complaint because (I) it was barred by the application

of the doctrines of res judicata and collateral estoppel,

and (2) the bringing of that action violated this court's

directive in Dick IV, 195 IIl.App.3d at 659, 552 N.E.2d

at 389. Subsequently, plaintiff's motion for

reconsideration was denied, and the trial court ordered

plaintiff to pay sanctions in the amount of $6,757.40.

Because the trial court did not rule on whether

the complaint stated a cause of action, that issue has not

been presented in this appeal. Nevertheless, this court

must comprehend the nature of the cause of action

plaintiff was attempting to allege in order to address the

issues On appeal.

In Dick IV, 195 Ill.App.3d at 659-60, 552

N.E.2d at 389, plaintiff was barred from relitigating

improprieties regarding (I) the 1959 transfer of shares to

George III, (2) the settlement between Peoples Bank

and George III, (3) George III's use of Peoples Bank's

shares as collateral for personal loans, (4) actions of

the bank and holding company in collecting bank

shares plaintiff alleged belonged to George Jr.'s estate,

and (5) Peoples Bank allowing shares owned by

George Ill and the estate of George Jr. to be

commingled. However, the court remanded the cause

to allow plaintiff to pursue actions based on alleged

violations of fiduciary duties. Because the action in the

case at bar is based on alleged violations of fiduciary

duties, this court's decision in the case of Dick IV, 195

Ill.App.3d at 659-60, 552 N.E.2d at 389, did not

Appendix

expressly bar an action of this type, and that language

could not form the basis of dismissing the complaint in

this case. However, in a subsequent decision of this

court, it was stated that plaintiff was absolutely barred

from relitigating the issue of whether Peoples Bank

violated a fiduciary duty by failing to inform her of

facts surrounding the settlement with George III. Dick

V, 242 Ill.App.3d at 305, 609 N.E.2d at 1003. The

language in that case does support the dismissal of the

complaint here to the extent the complaint attempts to

allege a cause of action derived from a violation by

Peoples Bank of a fiduciary duty to inform plaintiff

regarding her rights relative to the recovery of the same

shares of stock, dividends, and interest.

Under section 2-619(a) (4) of the Code, the

circuit court may dismiss if the cause of action is barred

by a prior judgment. 735 ILCS 5/2-619(a) (4) (West

1996).

"The doctrine of res judicata

provides that a final judgment on the

merits rendered by a court of competent

jurisdiction bars any subsequent actions

between the same parties or their

privies on the same cause of action.

Rein _v. David A. Noyes & Co., 172

lil.2d 325, 334, 665 N.E.2d 199, 1294

(1996). This doctrine extends not only

to the issues aciually decided in the

original action but also to those that

could have been decided. Rein, 172

Ill.2d at 334-35, 665 N.E.2d at 1204.

There are three elements

necessary to invoke the doctrine of res

judicata: (1) a final judgment on the

merits rendered by a court of competent

Appendix

jurisdiction, (2) an identity of the cause

of action, and (3) an identity of the

parties or their privies. Rein, 172 Ill.2d

at 335, 665 N.E.2d at 1204, citing

Downing v. Chicago Transit Authority,

162 Ill.2d 70, 73-74, 642 N.E.2d 456 [,

458] (1994). ‘If the three elements

necessary to invoke res judicata are

present, res judicata will bar not only

every matter that was actually

determined in the first suit, but also

every matter that might have been

raised and determined in that suit.’

Rein, 172 [ll.2d at 338, 665 N.E.2d at

1205-06, citing Torcasso v. Standard

Outdoor Sales, Inc., 157 Ill.2d 484, 490

[, 626 N.E.2d 225, 228] (1993)."

Mason vy. Parker, 295 Ill.App.3d 1096,

1097-98, 695 N.E.2d 70, 71 (1998).

Claims are considered the same cause of action if they

arise from a single set of operative facts, even though

recovery is sought under different theories. River Park,

Inc. v. City of Highland Park, 184 Ill.2d 290, 311, 703

N.E.2d 883, 893 (1998). The doctrine of res judicata is

not inapplicable simply because of a misconception of

the remedy available. Thorleif Larsen & Son, Inc. y,

PPG Industries, Inc., 177 Ill.App.3d 656, 661, 532

N.E.2d 423, 426 (1988). However, strict application of

res judicata may be relaxed when fundamental fairness

requires. People v. Whitehead, 169 Ill.2d 355, 371, 662

N.E.2d 1304, 1312 (1996); People v. Hayes, 279

Iil.App.3d 575, 586, 665 N.E.2d 419, 422 (1996).

Simply arguing fundamental fairness should be applied

to relax res judicata in a particular case is not sufficient,

and relaxation of the doctrine will not occur unless the

"cause and prejudice" test is satisfied. People _v.

Franklin, 167 Ill.2d 1, 15, 656 N.E.2d 750, 756 (1995).

Appendix

"Cause" is an objective factor impeding the party's

efforts to raise the claim, and "prejudice" is an error so

infecting the proceeding that due process is violated.

Franklin, 167 Ill.2d at 20, 656 N.E.2d at 758.

Plaintiff has previously sued Peoples Mid-

Illinois Corporation, as a holding company of Peoples

Bank. The other defendants of this litigation only .

recently acquired Peoples Bank, and plaintiff alleges no

theory on which they could be held liable except

through the actions of Peoples Mid-Illinois Corporation.

Indeed, Peoples Mid-Illinois Corporation is not alleged

to have been the trustee, but only the holding company

of the trustee bank. Therefore, even if Peoples Mid-

Illinois Corporation's duties and liability to plaintiff, if

any, for violation of an alleged fiduciary duty to

disclose a cause of action arise only through the actions

or inactions of Peoples Bank.

As noted, plaintiff has already sued Peoples

Bank and Peoples Mid-Illinois Corporation for

withholding information. That earlier case was

dismissed, and the dismissal was affirmed. Plaintiff

knew she could sue the holding company.

A dismissal, other than for lack of jurisdiction,

is an adjudication on the merits for the purpose of the

doctrine of res judicata. River Park, Inc., 184 Ill.2d at

303, 703 N.E.2d at 889. There is an identity of the

cause of action because plaintiff is relying on the same

operative facts she relied on in the earlier case that was

dismissed for failure to state a cause of action, even

though she is here attempting to utilize a different

theory. Peoples Mid-Illinois Corporation was a party to

that earlier litigation, and plaintiff could have presented

the theory she relies on here in that case. The third

element for the application of the doctrine of rea

judicata is satisfied because Peoples Méid-lIlinois

Corporation was a party to the earlier litigation and the

other defendants in this case are privies of Peoples Mid-

Baris Red RONSON RSA . - . , -

Re SE Ne Ree ee eee eT eh eS TLeTe NOt Seer Meret ETUC Pee eet

Appendix

Illinois Corporation as successor holding companies.

An entity or individual who succeeds to the rights of

the property affected by a judgment after the institution

of a particular suit and from a party thereto is a privy to

the judgment in that suit. Sweeting v. Campbell, 2

Iil.2d 491, 496-97, 119 N.E.2d 237, 240 (1954): Bonanno

v. LaSalle & Bureau County R.R. Co., 87 fll. App.3d

988, 993-94, 409 N.E.2d 481, 485 (1980).

Plaintiff argues she has been denied due

process because she has not been given an opportunity

to be heard on the alleged cause of action. We interpret

plaintiff's argument as requesting that the fundamental

fairness exception to the doctrine of res judicata be

applied to this case. However, no objective factor has

impeded plaintiff's opportunity to raise the claim. The

"fraudulent concealment" alleged in the complaint is no

more than a conclusory statement that she did not know

until March 16, 1998, that she had a cause of action

against the holding company for replacement of shares

and recovery of dividends and interest.

In an affidavit attached to the complaint,

plaintiff stated that Peoples Bank, as trustee, "never

revealed to me that the Bank could not sue its parent

company and has never revealed to me the existence of

any cause of action against the holding company." The

affidavit further states that, until March 16, 1998, she did

not know Peoples Bank could not sue its parent holding

company and that a cause of action existed against the

holding company for the replacement of the shares. In

support of her statement that she has discovered a cause

of action against the holding company, plaintiff's

affidavit cites "18 C.J.S. Corporations [ ] §281." That

section refers to an action for conversion and to recover

damages for the wrongful transfer of stock on the

books of a corporation. 18 C.J.S. Corporations §281

(1990). Also attached to the complaint were copies of

Peoples Bank's stockholders' ledger. That, and the

Appendix

allegations of the complaint, seems to indicate that the

improper transfer of shares to which the complaint

refers were by Peoples Bank, and not defendants. If

that is true, any potential liablity of defendants is

derived through the liability of Peoples Bank to

plaintiff. Actions concerning Peoples Bank's liability to

plaintiff have been finally determined. Those decisions

are conclusive of the issues, and plaintiff may not

relitigate.

Even assuming the plaintiff's complaint is

attempting to allege the violation of a duty defendants

owed plaintiff, independent of any duty Peoples Bank

owed plaintiff (perhaps some form of a shareholder

derivative action), plaintiff has presented no evidence

that any deficiency in the earlier proceedings precluded

her from presenting the cause of action she now asserts.

Plaintiff has pointed to nothing other than her own

failure to understand the nature of the legal proceedings

and the requirements of the law. The fact that plaintiff

may have previously proceeded against Peoples Mid-

Illinois Corporation on a different theory, instead of the

one she how attempts to present, does not raise a

fundamental fairness concern. If plaintiff knew she

could sue Peoples Mid-Illinois Corporation, it is

irrelevant that Peoples Bank did not tell her it could not

sue Peoples Mid-Illinois Corporation. A party who

represents herself in a complicated case accepts the risk

of not sufficiently understanding how to best protect

her interests.

After plaintiff's complaint was dismissed, she

filed a motion for reconsideration which was heard on

October 29, 1998. On that date, plaintiff filed a written

response to defendants’ memorandum. According to

the agreed statement of facts, the trial court "glanced

through the document" and saw nothing indicating a

fraudulent concealment. We have also reviewed the

document and agree with the trial court. At most, this

DIRE TRH ket tS AU Bala

REAR Sa ature

Appendix

document and the plaintiff's affidavit attached to her

complaint establish that she failed to do her legal

research while her earlier case against Peoples Mid-

Illinois Corporation was pending.

The doctrine of res judicata bars this action.

Plaintiff's complaint was properly dismissed. We need

not discuss whether the application of the related

doctrine of collateral estoppel also bars this action.

The next issue is whether the imposition of

sanctions against plaintiff was an abuse of discretion.

Sanctions may be imposed against a party who

improperly files a pleading with the court. Supreme

Court Rule 137 states, in relevant part:

"The signature of an attorney or party

constitutes a certificate by him that he

has read the pleading, motion or other

paper; that to the best of his knowledge,

information, and belief formed after

reasonable inquiry it is well grounded

in fact and is warranted by existing law

or a good-faith argument for the

extension, modification, or reversal of

existing law, and that it is not

interposed for any proper purpose, such

as to harass or to cause unnecessary

delay or needless increase in the cost of

litigation. *** If a pleading, motion,

or other paper is signed in violation of

this rule, the court, upon motion or

upon its own initiative, may impose

upon the person who signed it, a

represented party, or both, an

appropriate sanction, which may

include an order to pay to the other

party or parties the amount of

reasonable expenses incurred because

of the filing of the pleading, motion or

Appendix

other paper, including a reasonable

attorney fee." 155 Ill.2d R. 137.

The standard for evaluating a party's conduct under

Rule 137 is one of reasonableness under the

circumstances existing at the time of the filing. Toland

v. Davis, 295 Ill.App.3d 652, 656, 693 N.E.2d 1196,

li99 (1998). The determination of whether to impose

sanctions is a matter of discretion with the trial court,

and the trial court's determination will not be

overturned on appeal absent an abuse of discretion.

Toland, 295 Ill.App.3d at 654, 693 N.E.2d at 1198.

Plaintiff does not challenge the reasonableness

of the amount of the sanction or the sufficiency of the

affidavit of defendants' attorney. Plaintiff argues that

she did not name as a party any person who

participated in the 1959 transfer of shares and no court

said she could not sue on a cause of action that was

fraudulently concealed from her. However, no facts are

alleged in the complaint that, if proved, would establish

a fraudulent concealment. As already noted, plaintiff

was informed by this court that she was barred from

bringing another action based on the alleged failure of

Peoples Bank to inform her of facts surrounding the

settlement with George III, and this case involves the

holding company named as a defendant in that case

and its successors. Plaintiff has been involved in

numerous cases where the doctrine of res judicata has

been applied to preclude her litigating to recover the

same shares of stock, dividends, and interest. The trial

court could reasonably found that plaintiff brought this

action for the purpose of harassment. The award of

sanctions was not an abuse of discretion.

Taken with the case is defendants' motion for

sanctions pursuant to Rule 375 (b) for bringing a

frivolous appeal. A party who successfully defends a

trial court's award of sanctions or attorney fees should

not be forced to bear the costs of defending the award

Appendix

on appeal. Kubiak v. City of Kewanee, 228 Ill. App.3d

605, 608, 592 N.E.2d 1200, 1202 (1992). It would have

been readily apparent to a reasonable, prudent attorney

that the instant appeal could not be brought in good

faith as it is absolutely lacking in any legal basis.

Petitioner's pro se status does not exempt her from

compliance with the supreme court rules for appellate

practice. Therefore, the defendants' motion for

sanctions is granted. This cause is remanded to the trial

court for a hearing to determine the amount of

reasonable attorney fees and costs incurred by the Bank

in connection with this frivolous appeal. See Kubiak,

228 Ill.App.3d at 608, 592 N.E.2d at 1203; Aroonsakul

v. Flanagan, 155 Ill.App.3d 223, 230, 507 N.E.2d I, 6

(1987).

The judgment of the circuit court of McLean

County is affirmed, the defendants’ motion for

sanctions is allowed, and the cause is remanded for

determination of the amount of fees and costs of this

appeal.

Affirmed; cause remanded with directions.

McCULLOUGH, J., with COOK and

STEIGMAN, JJ., concurring.

Appendix

APPEAL TO THE FOURTH DISTRICT

APPELLATE COURT FROM THE

CIRCUIT COURT OF McLEAN COUNTY

HELEN A. DICK,

Plaintiff-Appellant,

v. No. 98-CH-56

COMMERCE BANCSHARES, INC.,

CBI-ILLINOIS, INC., and PEOPLES

MID-ILLINOIS CORPORATION,

Defendants-Appellees.

STIPULATION AS TO AGREED STATEMENT OF

FACTS IN LIEU OF A REPORT OF PROCEEDINGS

[filed December 17, 1998 in the Appellate Court]

Pursuant to Supreme Court Rule 323 (d), the

parties (Helen A. Dick, pro se, and defendants by their

attorneys, Samuels, Miller, Schroeder, Jackson & Sly)

stipulate to the facts set forth below and to the filing of

this agreed statement of facts without certification and

in lieu of a report of proceedings.

1. Neither the July 15, 1998 nor the October 29,

1998 proceedings before Judge William D. DeCardy

were recorded by a court reporter.

2. No witnesses were called. Neither the

defendants' counsel nor Ms. Dick was sworn as a

witness.

3. The July 15, 1998 proceedings (on

Defendants' Motion to Dismiss) were brief. The court

asked plaintiff to state her cause of action. She

described this as an action to recover shares of the

Capital Stock of the Peoples Bank of Bloomington held

in a constructive trust imposed by Judge Richard M.

Baner's Order of March 2, 1984 [in McLean County 82-

CH-124]. Attorney Shupenus argued that Helen A. had

already had her day in court and that her action was

Appendix

barred by res judicata. Plaintiff argued that defendants

had not alleged res judicata. The court stated that

paragraph 2 at page 2 of defendants' combined motion

[to dismiss] could be construed as alleging res judicata.

The court took the matter under advisement.

4. On September 28, 1998, the trial court

entered a written order: (a) finding that the complaint is

barred by res judicata and collateral estoppel; (b)

finding that the bringing of the instant action is a

violation of the Fourth District Appellate Court's 1990

order in a related case; (c) allowing Defendants'

Motion to Dismiss pursuant to 735 ILCS 5/2-619; (d)

dismissing plaintiff's complaint, with prejudice; and (d)

setting an October 29, 1998 hearing on Defendants’

Motion for Sanctions.

5. The October 29, 1998 proceedings were of

20 minutes duration, including an approximate 10

minute recess during Which defendants’ counsel

prepared the written order. The court allowed

defendants' Motion for Sanctions, ordering plaintiff to

pay sanctions in the amount of $6,757.40 (which

included defendants' attorney fees through October 29,

1998) and ordering plaintiff to refrain from bringing any

further cause of action pertaining in any way to the

stock at issue or any transfer thereof. The court did not

allow oral argument on plaintiff's Motion for Rehearing

and Reconsideration. The court denied her said

motion, saying that it had glanced through the

document she had filed that day and did not see any

fraudulent concealment.

HELEN A. DICK (pro se)

Helen A, Dick

COMMERCE BANCSHARES, INC.,

CBI-ILLINOIS, INC. and PEOPLES

MID-ILLINOIS CORPORATION,

Appendix

By SAMUELS, MILLER,

SCHROEDER,

JACKSON & SLY

Its Attorneys

Appendix

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

McLEAN COUNTY, ILLINOIS

HELEN A. DICK,

Plaintiff,

COMMERCE BANCSHARES,

INC., CBI-ILLINOIS, INC.:

and PEOPLES MID-ILLINOIS

CORPORATION,

Defendants.

No. 98-CH-56

ORDER

[filed October 29, 1998;

Vol. Il, C-657]

Defendants' Motion for Sanctions, including imposition

of injunctive relief, is allowed. Plaintiff is ordered to

pay sanctions in the amount of $6,757.40 within 30

days. Plaintiff is also ordered to refrain from bringing

any further cause of action pertaining in any way to the

stock at issue or any transfer thereof.

Plaintiff's Motion for Reconsideration and Rehearing is

denied.

WILLIAM D. DeCARDY,

Judge

Appendix

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

McLEAN COUNTY, ILLINOIS

HELEN A. DICK,

Plaintiff,

v. No. 98-CH-56

COMMERCE BANCSHARES,

INC., CBI-ILLINOIS, INC.;

and PEOPLES MID-ILLINOIS

CORPORATION,

Defendants.

ORDER OF DISMISSAL

[filed September 28, 1998;

Vol. Il, C-487]

This cause having come in [on] for hearing on

July 15, 1998, on Defendants’ Motion to Dismiss,

Plaintiff appearing pro se and Defendants appearing by

counsel, Robert Shupenus and Rhonda Heinz, the

Court, having heard the arguments and considered

Defendants' Memorandum in Support and Plaintiff's

Response to Defendants’ Memorandum and

Supplement to Plaintiff's Opposition, being now fully

advised, finds:

(1) Any cause of action stated or attempted to

be stated in the facts alleged in the complaint is

barred by the doctrines of res judicata and

collateral estoppel; and

(2) The bringing of the instant action is a

violation of the order of the Fourth District

Appellate Court in Dick v. Peoples Mid-Hlinois

Corp., 195 Ill.App.3d 654 (1990).

Appendix

WHEREFORE, IT IS HEREBY ORDERED

Defendants' Motion to Dismiss should be and is

allowed pursuant to 735 ILCS 5/2-619, and the

Complaint is dismissed, with prejudice; and

IT IS FURTHER ORDERED this cause is set for

hearing on Defendants’ Motion for Sanctions on

October 29, 1998 at 3:00 p.m.

Dated this 28th day. of September, 1998.

WILLIAM D. DeCARDY

Judge

Appendix

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

McLEAN COUNTY, ILLINOIS

HELEN A. DICK,

Plaintiff,

v. No. 98-CH-56

COMMERCE BANCSHARES,

INC., CBI-ILLINOIS, INC.;

and PEOPLES MID-ILLINOIS

CORPORATION,

Defendants.

COMPLAINT

[filed April 22, 1998,

Vol. I, C-5]

Plaintiff HELEN A. DICK names COMMERCE

BANCSHARES, INC.; CBI-ILLINOIS, INC.; and

PEOPLES MID-ILLINOIS CORPORATION as

defendants.

1. As shown by principles of law and facts set

forth with particularity hereinbelow (and in the affidavit

of Helen A. Dick attached hereto as Exhibit "C" and

incorporated herein), this action is not barred by laches,

limitations, estoppel or res judicata. Collateral estoppel

applies against the defendants. This cause of

action/remedy was fraudulently concealed from

plaintiff and she did not know or discover until on or

about March 16, 1998 that a cause of action existed

against the holding company for replacement of shares

of the Capital Stock of the Peoples Bank of

Bloomington and recovery of dividends declared, with

interest. 18 C.J.S. Corporations, § 281.

2. During November 28, 1994 proceedings in a

related case (McLean County 82-CH-124), an attorney

for beneficiary Helen A. Dick's trustee (Peoples Bank

Appendix

of Bloomington) referred to her lack of knowledge as

follows: |

"The case was never that she had no

remedy. The case was that she didn't

apparently know what her remedy was

* * *." (Transcript, 82-CH-124, Vol.

XIV, page 34 at line 5.)

3. As set forth in beneficiary Helen A. Dick's

aforesaid affidavit (Exhibit "C"), the trustee Bank has

never disclosed said remedy to her.

4. COMMERCE BANCSHARES, INC., a bank

holding company, was incorporated in Missouri on

August 4, 1966. Pursuant to pages A-l and A-40 of

Securities and Exchange Commission Form 10-K as

published in its 1995 Annual Report, said COMMERCE

BANCSHARES, INC. acquired The Peoples Bank

(Bloomington, IL), an Illinois state bank, on March 1,

1995, in a transaction recorded as a pooling of interests;

said COMMERCE BANCSHARES, INC. “issued

common stock valued at $82.8 million"; and "The

Peoples Bank had assets of $444 million at the date of

acquisition." The name of said The Peoples Bank was

changed to "Commerce Bank." Said "Commerce Bank,

Bloomington, IL"; "Commerce Bank, National

Association, Peoria, IL"; and "CBI-Illinois, Inc., Kansas

_ City, Mo." are separately listed at page 11 of said Form

10-K as being three of the more than thirty subsidiaries

of the aforesaid COMMERCE BANCSHARES, INC. “at

March 1, 1996,"

3S. On March 8, 1995, PEOPLES MID-

ILLINOIS CORPORATION (a Delaware corporation

which, prior to March 1, 1995 had been a one-bank

holding company with its principal place of business in

the Peoples Bank Building in Bloomington, Illinois, and

with said "The Peoples Bank" as its only subsidiary)

was merged into CBI-ILLINOIS, INC. Said CBI-

ILLINOIS, INC. was incorporated September 30, 1991

Appendix

as a Delaware corporation authorized to issue exactly

1,000 shares of common stock of the par value of $1.00

per share. The Certificate of Incorporation of the

surviving corporation is (without amendment) the

September 30, 1991 Certificate of Incorporation of said

CBI-ILLINOIS, INC. All of said 1,000 shares are

owned by the aforesaid Commerce Bancshares, Inc.

All three directors of said CBI-ILLINOIS, INC. at the

time of its incorporation were officers of the aforesaid

Commerce Bancshares, Inc.

6. On or about May 10, 1996, the Comptroller

of the Currency authorized the aforesaid COMMERCE

BANCSHARES, INC. "to consolidate Commerce Bank,

Bloomington, Illinois, into Commerce Bank, National

Association, Peoria, Illinois, effective as of May 10,

1996," the resulting bank title to be "Commerce Bank,

National Association." The Comptroller simultaneously

certified said "Commerce Bank, National Association"

(the resulting bank) "to increase its common stock to

$3,305,000 as of May 10, 1996."

7. George F. Dick, Jr. was an attorney who

died May 8, 1955, leaving a will dated July 14, 1953,

which was admitted to probate in the County (now

Circuit) Court of McLean County. His heirs, devisees

and legatees were his wife (Althea M. Dick); their three

natural children (Helen [who had no middle name or

initial], Eleanor, and George F. Dick III, all of whom

died in 1992); and Helen Althea Dick (hereinafter

"Helen A," the plaintiff). Said Helen A. Dick was

Eleanor's only child, was born during Eleanor's first

marriage, was raised by her said maternal grandparents,

and was adopted by them in 1935, when she was three

years old. A copy of said will of George F. Dick, Jr. is

attached hereto as Exhibit "A."

8. George F. Dick, Jr.'s said: will gave said

Althea M. Dick "full possession and sole management"

of all her late husband's property "for as long as she

Appendix

shall live," with the right to sell any or all of the

property for her own purposes and to consume

proceeds of any such sale without having to first

exhaust her own assets. Althea accepted all benefits of

her late husband's will, which included the following

provisions:

"No interest under this Will shall be

transferable or assignable by any

beneficiary (except by the Wills of

Helen Dick and Helen A. Dick as

provided above) or subject to the

claims of their creditors ***,"

9. Transfers of interest which are prohibited by

a spendthrift provision of a will are void. McKeown v.

Pridmore, 310 Ill.App. 634, 645-646 (Ist Dist. 1941).

10. Althea M. Dick and George F. Dick III

were named and served as Co-Executors of said will of

George F. Dick, Jr.

11. The only trust established by George Jr.'s

said will was f/b/o the aforesaid three daughters

(including plaintiff) and could not be funded with

property of George Jr.'s estate until after the death of _

Althea, who (as set forth above) had the power to sell

any or all property and consume sales proceeds.

12. In his said will, George Jr. referred to

mutual provisions of his wife's will as follows:

"My wife, Althea M. Dick, in her Will

has established a Trust similar to the

one I have established here and I

authorize-the Trustee in each of said

Wills to consolidate the Trust in my

Will and my wife's Will and to operate

it as one Trust Estate."

13. The law does not permit a beneficiary in a

will to accept that which benefits him and reject that

which operates to his prejudice. Oglesby v. Springfield

Marine Bank, 395 Ill. 37, 45 (1946).

Appendix

14. Having accepted all benefits of George Jr.'s

said will, Althea could not transfer any interest in stock

shares (including but not limited to shares which she

owned individually) except according to the terms and

provisions of her late husband's will, including the

aforesaid trust f/b/o the three daughters. Oglesby, at

45.

15. In a related case (McLean County 82-CH-

124), the court found (Order entered March 2, 1984) that

"any assignment of interest in shares by Althea Dick

prior to her death was violative of the limiting

provisions of the Will of George F. Dick, Jr., " a finding

which is in keeping with Oglesby.

16. Upon the date of his death in 1955, George

F. Dick, Jr. owned 91 of the total of 2,000 issued and

outstanding shares of the Capital Stock of the Peoples

Bank of Bloomington and Althea M. _ Dick

(individually) owned 58 of said 2,000 shares. Althea

(individually) purchased an additional 3 shares on or

about March 27, 1959.

17. On or about September 19, 1955, the

aforesaid 91 shares became registered (in the Bank's

Stock Holders Ledger and on stock certificates

representing, respectively, 80 and 11 shares) as follows:

"Althea M. Dick, Life Tenant Under

Will of Geo. F. Dick, Jr., Deceased."

18. Notice of a will gives a corporation, when

asked to transfer shares of its stock, the duty to inquire

into said will and the duty to refuse to effect any

transfer, payment and/or delivery of shares (and any

subsequent transfer, payment and/or delivery of shares)

that is violative of the terms and provisions of said will.

Seymour v. National Biscuit Co., 107 F.2d 58, 62 (3d

Cir. 1939). Daily v. Universal Oil Products Co., 76

F.Supp. 349, 371 (N.D. Ill. 1947). |

19. On or about March 31, 1959, the registration

of 80 shares of the Capital Stock of the Peoples Bank of

Appendix

Bloomington was transferred from "Althea M. Dick,

Life Tenant Under Will of Geo. F. Dick, Jr., Deceased,”

to said George F. Dick III (individually). Said George

III (an attorney) had been employed by the Bank as

Assistant Trust Officer in 1947 and had become a Vice

President and a director of the Bank in 1950. He

became Executive Vice President in 1960 and was

elected President of said Bank in June 1962.

20. In 1967, said George III was both President

of the Bank and Chairman of its Board of Directors. He

successfully proposed and recommended a 30 for 1

stock dividend and split of the Capital Stock of the

Peoples Bank of Bloomington to his fellow directors (at

the regular Board of Directors Meeting held June 12,

1967) and to all stockholders present at a Special

Stockholders Meeting of July 24, 1967. Effective

August |, 1967, the Capital Stock Account was

increased from $200,000.00 to $600,000.00: the total

number of shares was increased from 2,000 to 60,000:

and the par value was reduced from $100.00 per share

to $10.00 per share.

21. Peoples Mid-Illinois Corporation, a

Delaware corporation, was incorporated May 17, 1971 as

a corporation authorized to issue exactly 60,000 shares

of capital stock of the par value of $10.00 each.

22. From in or about January 1972 (if not

before) until his death in 1992, the aforesaid George F.

Dick III was always a director of said holding company

(Peoples Mid-Illinois Corporation) and/or chairman of

its board of directors.

23. During the period June 30, 1972 through

July 3, 1972, all shares of the Capital Stock of the

Peoples Bank of Bloomington (including all 2,730

shares which were property of the estate of George F.

Dick, Jr. and all 1,830 shares which were Althea's

individual property) and the Bank's aforesaid Stock

Holders' Ledger were converted by said Peoples Mid-

Appendix

Illinois Corporation to its own use and beneficial

enjoyment. Copies of eight pages of said Stock

Holders Ledger are attached hereto as Exhibit "B."

Each page having any entry for the year 1972 bears the

following words:

"PBB SHARES CONVERTED TO

PEOPLES MID-ILLINOIS CORP."

24. Althea died October 10, 1976, at which time

said George III became testamentary trustee of the

aforesaid George F. Dick, Jr. testamentary trust and

began acting as executor of a will of Althea M. Dick

dated January 23, 1969 (McLean County 76-P-554).

25. On or about December 26, 1978, Peoples

Bank of Bloomington began acting as successor trustee

of the aforesaid George F. Dick, Jr. trust f/b/o the three

daughters (including Helen A. Dick) and trustee of

trusts (f/b/o Helen A. Dick et al.) set forth in the

aforesaid 1969 will of Althea M. Dick.

26. The trust relation between the Bank and

beneficiary Helen A. Dick has not ended.

27. The principle of caveat emptor does not

apply to fiduciary relationships. The trustee must not

only be truthful in all his representations, he must not

remain silent concerning any matter that would throw

light on the trust estate. 90 C.J.S. Trusts § 247, p. 240.

The beneficiaries must not only have been acquainted

with the facts, they must know of their rights and have

been apprised of the law, and of how the facts would be

dealt with by a court of equity. 76 Am Jur 2d Trusts, §

357, p. 359. A trustee's failure to disclose amounts to

fraudulent concealment. Chicago Park District v.

Kenroy, 78 Ill.2d 555, 562 (1980).

28. The dominant characteristic of a holding

company is the ownership of securities by which it is

possible to control or substantially influence the

policies and management of one or more operating

companies in a particular enterprise. North American

Appendix

Co. v. iti Exchange Commission 327 U.S.

686, 701, 66 S.Ct. 785, 794, 90 L.Ed. 945, 956.

29. On or about September 22, 1982, Peoples

Bank of Bloomington (sole subsidiary of the aforesaid

Peoples Mid-Illinois Corporation) filed a seven-count

pleading as to the estates of George F. Dick, Jr. and

Althea M. Dick (McLean County 82-CH-124). Said

trustee Bank did not name said holding company asa

party to any count. Counts V and VII were dismissed

by the court on January 18, 1983. The Bank voluntarily

dismissed its Count VI (a count for discovery from

Helen A. Dick and others) on February 15, 1984. The

plaintiff Bank and defendant George F. Dick III were

the only parties to the only counts (i.e., Counts I, Il, I

and IV) then remaining.

30. On March 2, 1984, Circuit Judge Richard M.

Baner entered a partial summary judgment order. He

found, among other things, that "any assignment of

interest in shares by Althea Dick prior to her death was

violative of the limiting provisions of the Will of

George F. Dick, Jr.";_ that defenses of res judicata,

estoppel, laches and/or limitations had not been

established; and that an accounting was to be submitted

as to all shares for the period March 31, 1959 to the

October 10, 1976 date of Althea's death.

31. Said findings were against the interests of

holding company director George F. Dick III, and also

against the interests of his privy, Peoples Mid-Illinois

Corporation. Collateral estoppel applies against George

III's privy, Peoples Mid-Illinois Corporation, and its

successor holding company (or companies). Housing

Authority v. YMCA, 101 Ill.2d 246, 252 (1984).

32. Before any accounting was submitted, the

Bank and George III entered a settlement agreement as

to George III's (individual) liability and the case was

dismissed (over the objection of Helen A. Dick) per

stipulation between the Bank and George III on March

Appendix

14, 1984. Neither of the parties (i.e., the Bank and

George III) appealed the orders entered in the Bank's

1982-1984 action.

33. There was nothing before the court during

the Bank's 1982-1984 action to show that George F.

Dick III proposed and recommended the aforesaid (30

for 1) 1967 stock dividend and split or to show that he

had been a director of Peoples Mid-Illinois Corporation

since January 1972 (if not before).

34. The Bank's said 1982 complaint concealed

and/or failed to disclose the existence of any cause of

action against said holding company. As set forth in

the Affidavit of beneficiary Helen A. Dick (Exhibit "C"

attached above), the trustee Bank has never told her

that there was any cause of action against the holding

company and has never told her that the Bank could

not sue its parent company.

35. At all times material hereto, Peoples Mid-

Illinois Corporation and its successor holding company

(or companies) have known of the existence of this

cause of action and have known of (among other

things) 1982 et seq. litigation as to the estates of George

F. Dick, Jr. and Althea M. Dick in which its subsidiary

(the Bank) was participating as a trustee. Peoples Mid-

Illinois Corporation and its successor holding company

(or companies) have known and/or approved of the

aforesaid concealment/failure to disclose.

36. Where a third person is in privity with or

occupies an agency relationship with the defendant,

then the defendant's knowledge or approval of the third

person's concealment is sufficient to bar/toll a limitation

period. Chicago Park District v. K , 78 Ill.2d 555,

563 (1980).

37. As set forth in the aforesaid Affidavit of

Helen A. Dick (Exhibit "C"), she was defrauded by the

Bank's aforesaid 1972 pleading. She did not know or

discover until on or about March 16, 1998, that the Bank

Appendix

could not have sued its parent company and that the

remedy for the aforesaid 1972 conversion was and is an

action against the holding company for replacement of

Shares of the Capital Stock of the Peoples Bank of

Bloomington.

38. An action that has been fraudulently

concealed may be commenced at any time within 5

years of discovery of said action. 735 ILCS 5/13-215.

39. On or about July 9, 1985, the aforesaid

one-bank holding company (Peoples Méid-Illinois

Corporation, a Delaware corporation) purchased an

additional bank (First National Bank of Bloomington)

with funds derived from the operation of Peoples Bank

of Bloomington. The two banks were subsequently

operated as one state bank ("The Peoples Bank") under

the 1869 charter of Peoples Bank of Bloomington.

40. On or about January 21, 1993, said Peoples

Mid-Iilinois Corporation acquired all of the outstanding

stock of Lexington Bancshares, Inc. and its wholly

owned subsidiary, Lexington Bank. On January 22,

1993, Lexington Bank was "merged with and into" the

aforesaid "The Peoples Bank."

41. Pursuant to page | of a Prospectus/Proxy

Statement of Commerce Bancshares, Inc. dated

December 23, 1994 and "mailed on or about December

29, 1994," said "Prospectus is part of a Registration

Statement on Form S-4 (the ‘Registration Statement’)

filed by Commerce with the Securities and Exchange

Commission (the 'SEC') pursuant to the Securities Act

of 1933, as amended." Pursuant to page 16 of said

document, at that date (December 23, 1994), Commerce

Bancshares, Inc. owned 19,125 shares of the Common

Stock of Peoples Mid-Illinois Corporation and said

Peoples Mid-Illinois Corporation owned 33,600 shares

of the Common Stock of said Commerce Bancshares,

Inc. Page 24 of said Prospectus/Proxy Statement

contains (among others) the following paragraph:

Appendix

"At the Effective Time, the

separate corporate existence of Peoples

will terminate and all of the assets and

liabilities of Peoples will become assets

and liabilities of CBI. CBI will

continue to operate Bank in the

Bloomington, Illinois market area. * *

* The name of Bank will be changed

to conform with other Commerce

affiliates."

42. The first paragraph of Exhibit A to said

Prospectus/Proxy Statement reads as follows:

"THIS AGREEMENT AND

PLAN OF REORGANIZATION (this

"Agreement"), dated as of the 20th day

of October, 1994, by and between

Commerce Bancshares, Inc. ("CBI"), a

Missouri corporation registered as a

bank holding company under the Bank

Holding Company Act of 1956, as

amended (the "Act"), Peoples Mid-

Illinois Corporation ("Peoples"), a

Delaware corporation registered as a

bank holding company under the Act,

and CBI-Illinois, Inc. ("CBI-Illinois"), a

Delaware corporation and a wholly-

owned subsidiary of CBI."

Pages 9, 25 and 29 ("A-9," "A-25," and "A-29") of said

Exhibit A contain, among others, the following

paragraphs:

"Section 3.3 Peoples Bank

Organization i

Capital Stock. * * * The authorized

capital stock of Peoples Bank consists

of 116,200 shares of common stock,

$20.00 par value per share. As of the

date hereof, all shares of such common

Appendix

stock of Peoples Bank are validly

issued, outstanding, fully paid and

nonassessable and owned of record and

beneficially by Peoples free and clear

of any liens, pledges, security interests,

charges or other encumbrances.

eK KX

4.3(b) Covenants Regarding

Peoples Bank. After the Effective

Time, Peoples Bank shall be operated

in accordance with the established

corporate policies and philosophies of

CBI as such may be modified from time

to time.

KKK X

6.2(l) Financial Measures. The

consolidated tangible net worth of

Peoples and Peoples Bank shall be no

less than $49,500.000. * * *,"

Said Exhibit A to said Prospectus/Proxy Statement is

signed by Andrew F. Anderson (as President and Chief

Executive Officer of PEOPLES MID-ILLINOIS

CORPORATION); David W. Kemper: (as Chairman,

President and Chief Executive Officer of COMMERCE

BANCSHARES, INC.); and A. Bayard Clark (as

Executive Vice President of said COMMERCE

BANCSHARES, INC. and also as Vice President of

CBI-ILLINOIS, INC.).

43. Commerce Bancshares, Inc. reached out

beyond its own state (Missouri) to profit from creating

continuing relationships and obligations as to its

operation of the aforesaid Peoples Bank (renamed

Commerce Bank), a bank which does business in

Illinois and uses real estate situated in Illinois. 735

ILCS 5/2-209 (a) (1), (2), (3), (7), (10), (11) and (b) (4).

Appendix

1. Peoples Mid-Illinois Corporation's aforesaid

1972 conversion of the aforesaid shares of the Peoples

Bank of Bloomington to its own use was a gross and/or

willful breach of its fiduciary duties to Althea M. Dick

individually; to Althea in her capacity as "Life Tenant

Under the Will of George F. Dick, Jr., Deceased"; and

to plaintiff Helen A. Dick. Each subsequent transfer of

said shares has been an additional gross and/or willful

breach of fiduciary duties by said Peoples Mid-Illinois

Corporation and its successor holding company (or

companies).

2. At all times material hereto, Peoples Mid-

Iilinois Corporation and its successor holding company

(or companies) have had actual notice of the Will of

George F. Dick, Jr., and have known of the Bank's

aforesaid 1982-1984 litigation and the aforesaid March

2, 1984 findings against the interests of holding

company director George F. Dick II and his privy

holding company.

3. The 2,730 George F. Dick, Jr. shares which

were or ought to have been registered to Althea M.

Dick as “Life Tenant Under the Will of George F. Dick,

Jr., Deceased," after August !, 1967 and the 1,830 shares

Althea M. Dick owned individually after August 1, 1967

(a total of 4,560 shares) represented .076 of the 60,000

shares of the Capital Stock of the Peoples Bank of

Bloomington which were issued and outstanding at the

time of Peoples Méid-Illinois Corporation's 1972

conversion of said stock to its own use and beneficial

enjoyment.

4. Peoples Mid-Illinois Corporation and its

successor holding company (or companies) have been

unjustly enriched and have profited as a result of the

aforesaid conversion and other breaches of fiduciary

duty (e.g., the subsidiary bank's failure to

disclose/fraudulent concealment), Pursuant to the

foregoing facts, Commerce Bancshares, Inc. is in

Appendix

possession and control of all shares of the Capital Stock

of the Peoples Bank of Bloomington and all dividends

paid thereon since June 30, 1972.

WHEREFORE, plaintiff prays:

A. That the Court order and direct Peoples

Mid-Illinois Corporation and its successor holding

company (or companies) to replace and pay and

deliver to plaintiff Helen A. Dick the aforesaid 2,730

shares of the Capital Stock of the Peoples Bank of

Bloomington which were property of the estate of

George F. Dick, Jr. and the aforesaid 1,830 shares of

said Capital Stock which were the property of Althea

M. Dick (individually) at the time of the June 30, 1972

conversion.

B. That the Court order and direct Peoples

Mid-Illinois Corporation and its successor holding

company (or companies) te account to the Court and

plaintiff for all dividends declared on said Capital Stock

since June 30, 1972.

C. That the Court dieses the amounts by

which defendants have been unjustly enriched since

and/or due to the aforesaid 1972 conversion and enter

judgment against one or more of said defendants for

such amounts, together with interest thereon.

D. That the Court enter its judgment for

exemplary damages against one or more of the

defendants.

E. That the Court grant such other and further,

or different, relief as the Court may deem just and

proper, including judgment for plaintiff's costs and (if

any) attorney fees.

Respectfully submitted:

Helen A

Helen A. Dick, pro se

3323 - 13th Ave. Court

Moline, Illinois 61265

Phone: (309) 762-7014

Appendix

[Exhibit "A" (Vol. I, C-18)

to Plaintiff's Complaint.]

I, GEORGE F. DICK, JR., of Bloomington,

McLean County, Illinois, do make, publish and declare

this to be my Last Will and Testament, hereby revoking

all other Wills by me heretofore made.

It is my wish that the Executors hereinafter

named shall pay my funeral expenses and debts,

including Federal Estate and State Inheritance Taxes.

Whatever automobile I may own at the time of

my death, I give to my wife, Althea M. Dick.

I hereby give a life estate in all of my property

to my wife, Althea M. Dick, she to have the full

possession and sole management thereof as long as she

shall live.

I also empower my wife, Althea M. Dick, to

have authority to sell, transfer and convey any of the

assets in my estate during her lifetime which she may

think is for the best interest of my estate and I waive the

requirements of furnishing bond by her in said sales

and the purchaser is not required to see to the proper

application of the purchase money.

After the death of my wife, Althea M. Dick, the

remaining Executor of this Will shall transfer and assign

to my son, George F. Dick, III, Eighty (80) Shares of

the Capital Stock of the Peoples Bank of Bloomington

as and for his individual property.

All the rest and residue of my estate remaining

shall pass to my son, George F. Dick, III, as Trustee, for

Appendix

the benefit of my children, Helen Dick, Eleanor Dick

Lyon, and Helen A. Dick, under the terms and

conditions hereinafter set forth.

Said Trustee shall manage and care for the

Property that comes into his possession in the same

manner that any prudent man would manage and care

for his property; shall rent the land: look after the fertil-

ity thereof; insure the buildings for their insurable

value; and do any and all things that any prudent owner

- would do in the management of his own land and

property.

I own an undivided two-thirds (2/3) interest in a

farm in West Township, McLean County, Illinois, my

brother's Estate owning the remaining one-third (1/3). It

is my desire that this farm be retained, if possible,

however, I realize that the Carl R. Dick Estate may at

some future time desire its interest sold. In such case,

the Trustee herein is fully authorized to join in the sale

of said farm so that the farm may be sold as a whole; he

is fully authorized and empowered to make any

contract necessary, and also to make deed or deeds

conveying my interest herein as fully as I might do if

living. My Trustee is also fully empowered to purchase

my brother's one-third interest if he feels it is for the

best interest of my estate so to do. In connection with

the sale of real estate made by the Trustee herein, I

waive bond required by statute, and no purchaser shall

See to the proper application of the purchase price. If it

Should at any time during the life of the trust herein

created be the desire of the Trustees of the Carl R. Dick

Estate and the desire of George F. Dick, III, to partition

said farm lands in kind, then George F. Dick, III,

Trustee, in his discretion may agree to a partition,

division or exchange or a sale and convert such

undivided interest into an interest in severalty, or in

Appendix

cash, and to that end the said George F. Dick, II,

Trustee, is fully authorized to make all necessary

contracts, and as such Trustee to execute all necessary

deeds of partition and accept all conveyances which

may be necessary or appropriate to accomplish such

partition.

Said Trustee is fully authorized and directed to

hold as an investment in said Trust Estate the Capital

Stock of the Peoples Bank of Bloomington, which shall

be a part of my Trust Estate. If it becomes necessary at

any time to sell and dispose of said Stock due to the

fact that any of my children find it necessary to go into

the corpus of said Estate, then in that case the Trustee is

empowered to sell and dispose of it. Said Trustee is

also authorized to dispose of any other property in said

Trust if he thinks it is for the best interest of said estate.

I desire my son, George F. Dick, III, to vote

any and all Capital Stock of the Peoples Bank of

Bloomington in said Trust Estate during the life of said

Trust.

The income from said Trust Estate shall be

divided into three equal parts and one part paid to each

of my three daughters hereinabove names. I request

that said distribution of income be made in quarterly

payments.

The trust for my daughter, Eleanor D. Lyon,

shall continue for and during her natural life, however,

during her life should the income from her share in said

Trust Estate not be sufficient for her proper

maintenance and support, then the Trustee in his

discretion is authorized to allow her to withdraw from

the corpus such sums as may be necessary from time to

time for her personal and individual comfort main-

Appendix

tenance and support. Whatever is left in the corpus of

said estate belonging to Eleanor D. Lyon at the time of

her death, shall be equally divided between Helen Dick,

Helen A. Dick and George F. Dick, III, and by the

Trustee paid over to them.

At the death of my daughter, Eleanor D. Lyon,

I desire the Trusts herein established for my three

daughters shall cease and determine, and I authorize the

Trustee herein to pay and turn over to my daughter,

Helen Dick, her one-third interest in said Trust, less any

withdrawals of principal made by her, and also to pay

to Helen A. Dick, her one-third interest in said Trust,

less any withdrawals of principal made by her. The

Trustee is further authorized to distribute whatever

remains in the corpus of the Trust established for my

daughter, Eleanor D. Lyon, equally between my

daughters, Helen Dick and Helen A. Dick, and my son,

George F. Dick, III. In the event that the income from

the Trust Estate going to Helen Dick and Helen A. Dick

should not be sufficient for the proper maintenance and

support of either of them, then the Trustee in his

discretion is authorized to allow either one or both of

them to withdraw from the corpus of their Trusts such

sum as may be necessary from time to time for her or

their personal and individual comfort, maintenance and

support.

The Trustee shall keep a record of any

withdrawals of principal made by any of my daughters

during the life of the Trusts herein established and shall

make distribution of the income from said Trusts,

taking into account the withdrawals from said

individual trusts on account of any withdrawals of

corpus made individually by any of my daughters.

No interest under this Will shall be transferable

Appendix

or assignable by any beneficiary (except by the Wills of

Helen Dick and Helen A. Dick as provided above) or

subject to the claims of their creditors, and all income

distributions shall be paid to each beneficiary in person

and not on any written order or assignment from any

beneficiary.

The Trustee shall be entitled to reasonable

compensation for his services.

My wife, Althea M. Dick, in her Will has

established a Trust similar to the one I have established

here and I authorize the Trustee in each of said Wills to

consolidate the Trust in my Will and my wife's Will and

to operate it as one Trust Estate.

I nominate and appoint my wife, Althea M.

Dick, and my son, George F. Dick, III, to be the

Executors of this my Last Will and Testament and

request the Court to allow them to qualify as such

without furnishing bond as required by statute.

I also nominate and appoint my son, George F.

Dick III, to be Trustee under this Will and request that

he not be required to furnish bond, and in the event that

my son, George F. Dick III, should not act as Trustee,

or for any reason should cease to act as Trustee, then

the Peoples Bank of Bloomington, Bloomington,

Illinois, is appointed Trustee under this Will with all the

powers and authority given to my son, George F. Dick,

Ill.

Dated at Bloomington, Illinois, this 14th day of

July, A.D. 1953.

GEORGE F. DICK JR. (SEAL)

The foregoing instrument was on the date

Appendix

thereof signed, sealed, published and declared by the

said testator, George F. Dick, Jr., as and for his Last

Will and Testament in our presence, who at his request

and in his presence and in the presence of euch other

have subscribed our names hereto as_ witnesses,

believing him to be of sound mind and memory at the

time said Will was executed.

HELEN J. FIGG of Bloomington, Illinois

FRANK R. FIGG of Bloomington, Illinois

Appendix

[Group Exhibit "B" to Plaintiff's

April 22, 1998 Complaint.]

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Appendix

[Group Exhibit "B" to Plaintiff's

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Appendix

[Group Exhibit "B" to Plaintiff's

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Appendix

[Exhibit "C" (Vol. I, C-29) to Plaintiff's Complaint]

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

McLEAN COUNTY, ILLINOIS

HELEN A. DICK,

Plaintiff,

v. No. 98-CH-56

COMMERCE BANCSHARES,

INC., CBI-ILLINOIS, INC.;

and PEOPLES MID-ILLINOIS

CORPORATION,

Defendants.

AFFIDAVIT

State of Illinois

ss.

County of Rock Island

I, Helen A. Dick, being first duly sworn, state

the following under oath:

1. Throughout the Bank's action against

George F. Dick III (McLean County 82-CH-124), the

Bank was suing in its capacity of record as trustee. I

trusted and relied upon the Bank and believed that the

Bank (as my trustee) was revealing all causes of action

and/or remedies to me. I also believed that the Bank

was suing on all causes of action that existed as to

property of the estates of George F. Dick, Jr. and Althea

M. Dick.

2. The Bank (my trustee) has never revealed to

me that the Bank could not sue its parent company and

has never revealed to me the existence of any cause of

action against the holding company.

3. I did not know or discover until on or about

March 16, 1998 that the Bank (because a subsidiary)

Appendix

could not sue the "parent" bank holding company

(Peoples Mid-Iliinois Corporation).

4. I did not know or discover, until on or about

March 16, 1998, the existence of a cause of action

against the holding company (Peoples Mid-Illinois

Corporation) for replacement of shares of the Capital

Stock of the Peoples Bank of Bloomington. 18 C.J.S.

Corporations, § 281.

5. The Stock Holders Ledger pages attached as

Exhibit "B" to the foregoing complaint are copies of

Exhibits marked for identification during the pre-trial

conference of February 22, 1984 in McLean County 82-

CH-124. Said documents were not before the court for

its consideration because the Bank's said action was

dismissed "per Stipulation" between the Bank and

George F. Dick III.

Helen A. Dick

Subscribed and sworn to before me at

Moline, Rock Island County, Illinois,

this 2ist_ day of April, 1998.

Linda M, MacMillan

Notary Public

Page 2 of

Exhibit "C"

Appendix

[Plaintiff's Exhibit "J," Vol. III, C-636]

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

McLEAN COUNTY, ILLINOIS

HELEN A. DICK,

Plaintiff,

v. No. 98-CH-56

COMMERCE BANCSHARES,

INC., CBI-ILLINOIS, INC.;

and PEOPLES MID-ILLINOIS

CORPORATION,

Defendants.

AFFIDAVIT

State of Illinois

ss.

County of Rock Island

I, Helen A. Dick, being first duly swom, state

the following under oath:

1. I did not know or discover until doing

research, in or about early September 1998, while

preparing my Supplement (filed September 11, 1998) to

Plaintiff's Opposition, that it was not necessary to the

formation and/or existence of a bank holding company

(e.g., Peoples Mid-Illinois Corporation) that it have

possession of all (100%) of the voting shares of a

subsidiary.

_Helen A. Dick _

Subscribed and sworn to before me at

Moline, Rock Island County, Illinois,

this 19th day of October, 1998.

Notary Public

Appendix

[Plaintiff's Exhibit "D," Vol. I, C-73]

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

McLEAN COUNTY, ILLINOIS

PEOPLES BANK OF - No. 82-CH-124

BLOOMINGTON,

as Successor Trustee of trusts

created by the Will of George F.

Dick, Jr., deceased, and as Trustee

of trusts created by the Will of

Althea M. Dick, deceased,

Plaintiff,

GEORGE F. DICK III, HELEN M. [sic]

DICK, ELEANOR DICK LYON,

HELEN A. DICK YEAGER a/k/a

HELEN A. DICK and HELEN A.

DICK, JR., LLOYD R. YEAGER JR.,

CAROLINE M. DULANEY, ROBERT

F. YEAGER, GEORGE D. YEAGER,

JAMES DICK and GEORGE F. DICK IV;

Defendants.

CONSTRUCTION OF TESTAMENTARY TRUSTS

[filed September 22, 1982]

Plaintiff, PEOPLES BANK OF BLOOMINGTON,

as successor trustee of trusts created by the Will of

George F. Dick, Jr., deceased, and as trustee of trusts

created by the Will of Althea M. Dick, deceased, names

George F. Dick Il, Helen M. [sic] Dick, Eleanor Dick

Lyon, Helen A. Dick Yeager, a/k/a Helen A. Dick and

Helen A. Dick, Jr., Lloyd R. Yeager, Jr., Caroline M.

Dulaney, Robert F. Yeager, George D. Yeager, James

Dick and George F. Dick IV as defendants.

Appendix

COUNT I

For its Count I against defendant, George F.

Dick III, plaintiff alleges:

l. George F. Dick, Jr. died May 8, 1955 leaving

a will dated July 14, 1953, which was admitted to

probate in the County, now Circuit Court, of McLean

County. His heirs, devisees and legatees were Aithea

M. Dick, his wife, and defendants Eleanor D. Lyon,

Helen M. [sic] Dick, Helen A. Dick Yeager and George

F. Dick Ill, his children. Helen A. Dick Yeager was the

child of Eleanor D. Lyon and the adopted child of

George F. Dick, Jr. and Althea M. Dick. A copy of the

will of George F. Dick, Jr. is attached as Exhibit A.

2. Althea M. Dick (who died in 1976) and

George F. Dick III were named and served as executors

of the will of George F. Dick, Jr. until the final report of

the executors on or about July 5, 1956. George F. Dick

III was named and served as trustee of the trusts created

by the will of George F. Dick, Jr. until December 26,

1978, when he resigned, and plaintiff became successor

trustee.

3. Althea M. Dick died October 10, 1976,

leaving a will dated January 23, 1969, which was

admitted to probate in the Circuit Court of McLean

County. Her heirs, devisees and legatees were the four

defendants named in paragraph 1 supra. A copy of the

will of Althea M. Dick is attached as Exhibit B. A chart

showing family relationships is attached as Exhibit C to

this complaint.

4. Defendant, George F. Dick III was named

and served as executor of the will of Althea M. Dick

until discharged January 15, 1979, when plaintiff

became trustee of the trusts created by the will of

Althea M. Dick.

5. George F. Dick III is an attorney: He was

employed by plaintiff as Assistant Trust Officer in 1947,

Appendix

became a Vice President and member of the Board of

Directors in 1950, Executive Vice President in 1960,

President in 1962, Chairman of the Board of Directors in

1976, and retired from the plaintiff bank in February of

1981.

6. The will of George F. Dick, Jr. contained the

following, among other, provisions:

I hereby give a life estate in ull

of my property to my wife, Althea M.

Dick, she to have the full possession

and sole management thereof as long as

she shall live.

I also empower my wife, Althea

M. Dick, to have authority to sell,

transfer and convey any of the assets in

my estate during her lifetime which she

may think is for the best interest of my

estate and I waive the requirements of

furnishing bond by her in said sales and

the purchaser is not required to see to

the proper application of the purchase

money.

After the death of my wife,

Althea M. Dick, the remaining Executor

of this Will shall transfer and assign to

my son, George F. Dick, Ill, Eighty

(80) Shares of the Capital Stock of the

Peoples Bank of Bloomington as and

for his individual property.

All the rest and residue of my

estate remaining shall pass to my son,

George F. Dick, III, as Trustee, for the

benefit of my children, Helen Dick,

Eleanor Dick Lyon, and Helen A. Dick,

under the terms and _ conditions

hereinafter set forth.

Appendix

* * *

I desire my son, George F.

Dick, III, to vote any and all Capital

Stock of the Peoples Bank of

Bloomington in said Trust Estate during

the life of said Trust.

* *

No interest under this Will shall

be transferable or assignable by any

beneficiary (except by the Wills of

Helen Dick and Helen A. Dick as

provided above) or subject to the

claims of their creditors, and all income

distributions shall be paid to each

beneficiary in person and not on any

written order or assignment from any

beneficiary.

7. Upon the date of his death in 1955 George F.

Dick, Jr. was the owner of 91 shares of stock of

plaintiff. On or about March 31, 1959, 80 shares of

stock of plaintiff bank were transferred from the trust

estate created by the will of George F. Dick, Jr. to

George F. Dick III, who enjoyed the benefits of full

ownership of such stock from that date on.

8. On or about August 1, 1967, there was a 30

for | split of plaintiff's stock, and on or about June 3,

1972, all of plaintiff's shares (except directors’

qualifying shares) were exchanged on a | for | basis for

shares of Peoples Mid-Illinois Corporation, a Delaware

corporation and a one bank holding company, and on

or about April 17, 1978, there was a 3 for | stock split of

the shares of Peoples Mid-Illinois Corporation.

9. Plaintiff is uncertain whether under a proper

construction of the will of George F. Dick, Jr.;

(a) It was proper for George F. Dick

II, the trustee and defendant herein, to accept

ne”

| |

Appendix

and enjoy the benefits of said 80 shares of

plaintiff prior to the death of Althea M. Dick in

1976.

(b) George F. Dick III should have

received 80 shares of stock of plaintiff upon the

death of Althea M. Dick in 1976 rather than the

2,400 shares resulting from the 30 for | stock

split which“occurred in 1972.

WHEREFORE, plaintiff prays:

A. That the Court construe the will of George

\, F. Dick, Jr. with regard to questions raised in paragraph

9 supra.

B. If it was improper for defendant George F.

Dick III to receive and enjoy the benefits of the bank

shares prior to 1976 or if defendant George F. Dick III

should have received 80 [rather than 2,400] shares in

1976, that defendant George F. Dick III be ordered and

directed to account to plaintiff as successor trustee for

the benefit of the beneficiaries for all stock or monies

owing the trust estate.

C.. That the Court grant such other relief as

may be just and proper, including a judgment for plain-

tiff's costs and attorney fees.

COUNT II

For its Count II against the defendant,

GEORGE F. DICK III, piaintiff alleges: 2

l, 2, 3, 4, 5 and 6. Plaintiff realleges paragraphs

l, 2, 5, 6, 7 and 8 of Count I as paragraphs | through 6

of this Count II.

7. The ll shares of stock of plaintiff bank which

were owned by George F. Dick, Jr. at the time of his

death and which were not included in the conveyance

to George F. Dick III in 1959, had become 330 shares

as a result of a 30 for | split of stock of plaintiff bank,

Appendix

and the | for 1 exchange on or about June 3, 1972,

converted said shares into shares of Peoples Mid-

Illinois Corporation.

8. In or about October of 1972, defendant

George F. Dick III induced his sister, defendant Helen

M. {sic] Dick, to borrow $20,625 from plaintiff bank,

which sum was deposited in the trust account of the

trust created by the will of George F. Dick, Jr. As a part

of the same transaction, George F. Dick III induced his

mother, Althea M. Dick, to sell said 330 shares of

Peoples Mid-Illinois Corporation to Helen M. [sic]

Dick; he then issued a check from said trust account in

the sum of $20,625 to Helen Dick, and Helen Dick

assigned said 330 shares to George F. Dick III as

trustee under the will of George F. Dick, Jr. Helen Dick

used the $20,625 check from the trust account to repay

her loan to plaintiff bank. George F. Dick III as trustee

paid $lll interest on Helen Dick's above-referred to loan

from trust funds.

9. Plaintiff is uncertain whether the above-

described transaction was for a proper trust purpose and

authorized under the will of George F. Dick, Jr., and if

not, whether such transaction resulted in any loss or

damage to any trust beneficiary.

WHEREFORE, plaintiff prays that this Court

determine whether under a true construction of the will

of George F. Dick, Jr. the described transaction was

proper, and if not, whether any loss resulted to any trust

beneficiary, and if so, that judgment be entered against

said defendant or defendants and that plaintiff have

such additional relief as may be just and proper.

COUNT Il

For its Count III against defendant, GEORGE F.

DICK II, plaintiff alleges:

1-5. Plaintiff realleges paragraphs | through 5 of

Appendix

its Count I herein as paragraphs | through 5 of this

Count II.

6. The records maintained by defendant

George F. Dick III disclose that commencing on or

about June I, 1971, and continuing until June 19, 1978,

he, as trustee under the will of George F. Dick, Jr. failed

to invest the trust funds he held, but in fact made

unsecured loans to himself and to his then wife,

Marilyn Dick, totalling $112,900, the largest unsecured

sum outstanding at any particular time, being $88,900

from September 20, 1977 until June 18, 1978. The

records maintained by defendant George F. Dick III

further disclose that payments designated as principal

or interest or both were made from time to time to

George F. Dick III as trustee, with a final payment of

$88,900 on June 19, 1978. A summary of the dates and

amounts of said loans and repayments as shown by the

records maintained by George F. Dick III is attached

hereto as Exhibit D.

7. The use of trust funds by defendant George

F. Dick II, referred to in the preceding paragraph, was

a gross breach of defendant George F. Dick III's duties

as trustee of the trusts created by the will of George F.

Dick, Jr.

8. The trusts created by the will of George F.

Dick, Jr. have suffered large losses, and George F. Dick

Ii has profited as a result of his breaches of trust, and

said defendant should account to the trusts and plaintiff

as successor trustee for all such profits and for all losses

suffered by the trusts.

WHEREFORE, plaintiff prays:

A. That the Court order and direct defendant

George F. Dick III to account to the plaintiff as

successor trustee for all profits or gains accruing as a

result of any use by either George F. Dick II or

Marilyn Dick of any funds of the trusts created by the

will of George F. Dick, Jr.

Appendix

B. That the Court determine the amount of the

losses sustained by the trust estates resulting from the

use of trust funds by said defendant and his then wife,

Marilyn Dick.

C. That the Court enter judgment against

defendant George F. Dick III for any profits made by

defendant George F. Dick III and/or his then wife

Marilyn Dick, and for all losses sustained by the trusts

resulting from such use of trust funds by sai« defendant

and/or Marilyn Dick.

D. That the Court enter its judgment for

exemplary damages against said George F. Dick III, if

the Court finds such damages justified.

E. That the Court grant such other relief as may

be just and proper, including exemplary damages if

justified by the evidence herein, and judgment for

plaintiff's costs and attorney fees.

COUNT IV

For its Count IV against defendant, GEORGE F.

DICK III, plaintiff alleges:

1-5. Plaintiff realleges paragraphs | through 5 of

Count I as paragraphs | through 5 of this Count IV.

6-7. Plaintiff realleges paragraphs 7 and 8 of

Count I as paragraphs 6 and 7 of this Count IV.

8. On or about June 27, 1977, defendant,

George F. Dick III, as executor of the estate of Althea

M. Dick, sold 500 shares of stock of Peoples Mid-

Illinois Corporation for $45,000 to Peoples Mid-Illinois

Corporation, the one bank holding company which had

acquired all the stock of Peoples Bank of Bloomington.

This sale was not necessary for the proper adminis-

tration of the estate of Althea M. Dick.

9. In view of George F. Dick III's position as

Chairman of the Board of Peoples Mid-Illinois Corpo-

ration, as well as executor of the Estate of Althea M.

Appendix

Dick, this does not appear to be an arms length trans-

action and George F. Dick [III] should be required to

show that this sale was for a proper trust purpose and

for a proper price.

10. A few months after this sale, the stock of

Peoples Mid-Illinois Corporation was split 3 for 1,

resulting along with other things in a substantial

increase in value of said stock. George F. Dick III, as

bank [sic] Chairman, knew or should have known of

these developments and he failed to preserve the estate

assets.

WHEREFORE, plaintiff prays judgment against

defendant George F. Dick III for the amount, if any, by

which the fair cash market value of said shares of

Peoples Mid-Illinois Corporation exceeded the sum of

$45,000 for which they were sold on or about June 27,

1977 and that plaintiff have such other and further relief

as may be just and proper.

COUNT V

For its Count V against all defendants plaintiff

alleges:

I-5. Plaintiff realleges paragraphs | through 5 of

Count I for paragraphs | through 5 of this Count V.

6. The will of George F. Dick, Jr. contained the

following among other provisions;

My wife, Althea M. Dick, in her will has

established a Trust similar to the one I

have established here and I authorize the

Trustee in each of said Wills to

consolidate the Trust in my will and my

wife's Will and to operate it as one Trust

Estate.

7. Plaintiff has no other knowledge as to

Appendix

whether Althea M. Dick had such a will in or about the

time in 1953, when George F. Dick, Jr. executed his

will, whether or not Althea M. Dick was contractually

obligated to execute a similar will, and if so whether the

will referred to in paragraph 3 supra complies with such

contractual obligation, if any.

WHEREFORE, plaintiff seeks the aid and assis-

tance of the Court in determining whether the will of

Althea M. Dick should have been admitted to probate

and the trusts therein provided created or whether the

net estate of Althea M. Dick should go into the trust

created by the will of George F. Dick, Jr., and for such

other relief as may be just and proper.

COUNT VI

For its Count VI against GEORGE F. DICK II,

HELEN M. [sic] DICK, ELEANOR DICK LYON,

HELEN A. DICK YEAGER, LLOYD R. YEAGER, JR.,

CAROLINE M. DULANEY, ROBERT F. YEAGER,

GEORGE D. YEAGER, JAMES DICK AND GEORGE

F. DICK IV, plaintiff alleges:

1-5. Plaintiff realleges paragraphs | through 5 of

Count I as paragraphs | through 5 of this Count VI.

6. Certain of the above defendants claim that

defendant George F. Dick II, as trustee of the trusts

created by the will of George F. Dick, Jr. and/or as

executor of the will of Althea M. Dick, improperly

commingled the assets of said estates and also disposed

of assets of said estates which he should have

continued to hold, and disposed of such assets for less

than their fair cash market value and committed various

other breaches of trust prior to the time or times plaintiff

became successor trustee of the George F. Dick, Jr.

trust and trustee of the Althea M. Dick trusts.

WHEREFORE, plaintiff prays for discovery as

to the nature and validity of the claims, if any, of said

Appendix

defendants and for such other and further relief against

said defendants as may be just and proper.

COUNT VII

For its Count VII against GEORGE F. DICK III,

HELEN M. [sic] DICK, ELEANOR DICK LYON,

HELEN A. DICK YEAGER, LLOYD R. YEAGER, JR.,

CAROLINE M. DULANEY, ROBERT F. YEAGER,

GEORGE D. YEAGER, JAMES DICK and GEORGE F.

DICK, IV, plaintiff alleges:

l-3. Plaintiff realleges paragraphs 1, 2 and 5 of

its Count I for its paragraphs 1-3 of this Count VII.

4. The will of George F. Dick, Jr. contained the

following, among other provisions:

All the rest and residue of my

estate remaining shall pass to my son,

George F. Dick, Ill, as Trustee, for the

benefit of my children, Helen Dick,

Eleanor Dick Lyon, and Helen A. Dick,

under the terms and_ conditions

hereinafter set forth.

KKK

The Income from said Trust

Estate shall be divided into three equal

parts and one part paid to each of my

three daughters hereinabove named. I

request that said distribution of income

be made in quarterly payments.

The trust for my daughter,

Eleanor D. Lyon, shall continue for and

during her natural life, however, during

her life should the from her share in

said Trust Estate not be sufficient for

her proper maintenance and support,

than the Trustee in his discretion is

Appendix

authorized to allow her to withdraw

from the corpus such sums as may be

necessary from time to time for her

personal and individual comfort,

maintenance and support. Whatever is

left in the corpus of said estate

belonging to Eleanor D. Lyon at the

time of her death, shall be equally

divided between Helen Dick, Helen A.

Dick and George F. Dick, II, and by

the Trustee paid over to them.

At the death of my daughter,

Eleanor D. Lyon, I desire the Trusts

herein established for my three

daughters shall cease and determine,

and I authorize the Trustee herein to

pay and turn over to my daughter,

Helen Dick, her one-third interest in

said Trust, less any withdrawals of

principal made by her, and also to pay

to Helen A. Dick, her one-third interest

in said Trust, less any withdrawals of

principal made by her. The Trustee is

further authorized to distribute

whatever remains in the corpus of the

Trust established for my daughter,

Eleanor D. Lyon, equally between my

daughters, Helen Dick and Helen A.

Dick, and my son, George F. Dick, III.

In the event that the income from the

Trust Estate going to Helen Dick and

Helen A. Dick should not be sufficient

for the proper maintenance and support

of either of them, then the Trustee in his

discretion is authorized to allow either

one or both of them to withdraw from

the corpus of their Trusts such sum as

Appendix

may be necessary from time to time for

her or their personal and individual

comfort, maintenance and support.

* KOK

No interest under this Will shall

be transferable or assignable by any

beneficiary (except by the Wills of

Helen Dick and Helen

A. Dick as provided above) or

subject to the claims of their creditors,

and all income distributions shall be

paid to each beneficiary in person and

not on any written order or assignment

from any beneficiary.

3. Plaintiff understands that the following

questions may not arise, but nonetheless asks the

court's guidance to avoid a possible multiplicity of

suits. While the will plainly states that the trusts shall

all terminate and be distributed at the death of Eleanor

D. Lyon, it is not clear what disposition the successor

trustee should make of income or principal in the event

either Helen M. [sic] Dick, Helen A. Dick or George F.

Dick Ill, or any or all of them, predecease Eleanor D.

Lyon. While the will of George F. Dick, Jr. contains

the language "No interest under this will shall be trans-

ferable or assignable by any beneficiary (except by the

Wills of Helen M. [sic] Dick and Helen A. Dick as

provided above)," there is no previous provision so

providing.

WHEREFORE, plaintiff prays that the Court

construe the will of George F. Dick, Jr. and advise

plaintiff successor trustee as to its duties as regards the

proper disposition of both the income and corpus of

said trusts in the event Helen Dick, Helen A. Dick,

George F. Dick III, or any or all of them, should

predecease said Eleanor D. Lyon.

Appendix

PEOPLES BANK OF BLOOM-

INGTON, Successor Trustee of

the trusts created by the will of

George F. Dick, Jr., deceased,

and as Trustee of the trusts

created by the will of Althea M.

Dick, deceased, Plaintiff

By SAMUELS, MILLER,

SCHROEDER, JACKSON &

SLY

By William M. Rice

THOMAS S. SLY

WILLIAM M. RICE

JOHN E. FICK

SAMUELS, MILLER, SCHROEDER,

JACKSON & SLY

Attorneys for Plaintiff

406 Citizens Building

Decatur, Illinois - 62525

Telephone; (217) 429-4325

Appendix

[Plaintiff's Exhibit "E," Vol. II, C-448]

IN THE CIRCUIT COURT OF

THE ELEVENTH JUDICIAL CIRCUIT

McLEAN COUNTY, ILLINOIS

PEOPLES BANK OF No. 82-CH-124

BLOOMINGTON,

As Successor Trustee of trusts

created by the Will of George F.

Dick, Jr., deceased, and as Trustee

of trusts created by the Will of

Althea M. Dick, deceased,

Plaintiff,

Vv.

GEORGE F. DICK III, et al.,

Defendants.

ORDER [filed February 22, 1984]

1. February 15, 1984 defendant Helen A. Dick

files Affidavit in Support of Plaintiff's Motion for Partial

Summary Judgment and Affidavit in Opposition to

George F. Dick III's Motion for Summary Judgment

2. Objection by George F. Dick, III to standing

of Helen A. Dick to argue Motions for Summary

Judgment on Counts I, II, III and IV of the Complaint

entitled Construction of Testamentary Trusts herein

filed by the original plaintiff.

3. Arguments heard.

4. The Court finds Helen A. Dick is not a party

to the causes of action alleged by the original plaintiff

in said Counts I, II, III and IV, and in the absence of

agreement of the parties to said counts may not inde-

pendently submit factual matters or present argument

relative to pending Summary Judgment Motions.

RICHARD M. BANER, Circuit Judge

Appendix

[Plaintiff's Exhibit "F," Vol. II, C-450]

IN THE CIRCUIT COURT OF

THE ELEVENTH JUDICIAL CIRCUIT

McLEAN COUNTY, ILLINOIS

PEOPLES BANK OF No. 82-CH-124

BLOOMINGTON,

As Successor Trustee of trusts

created by the Will of George F.

Dick, Jr., deceased, and as Trustee

of trusts created by the Will of

Althea M. Dick, deceased,

Plaintiff,

Vv.

GEORGE F. DICK II, et al.,

Defendants.

ORDER [filed March 2, 1984]

Count I

As to Count I the Court finds that a distribution

of the remainder interest of "Peoples Bank" shares

effective on the date of death of Althea M. Dick

(October 10, 1976) should have been in the amount of

2,400 shares. I further find that any assignment of

interest in shares by Althea Dick prior to her death was

violative of the limiting provisions of the Will of

George F. Dick, Jr. Summary Judgment is therefore

entered in favor of the defendant as to the issue of

remainder distribution of principal. Summary

Judgment is entered in favor of the plaintiff as to the

issue of assignment. The defenses of res adjudicata,

estoppel, laches or statute of limitation{s] are not

established.

The prayer for accounting is allowed as it

Appendix

relates to the period of March 31, 1959 to October 10,

1976 and as to all shares during such period. Ruling is

reserved as to remaining issues.

Count Il

Both motions for Summary Judgment are

denied.

Count II

Motion of plaintiff for Partial Summary

Judgment is denied except as to a partial judgment

and/or finding that the plaintiff has established a prima

facie case that a breach of trust by the defendant has

occurred. The burden of proof has now shifted to the

defendant (See Illinois Evidence Manual, Gard, Section

5:ll). To the extent the motion seeks additional relief it

is denied. To the extent they relate to the above finding

the defenses of laches, Chapter 17, Section 1684(2) and

res adjudicata are not established.

Count IV

I find that under the peculiar facts of this cause,

to the exient they are now before the Court, the plaintiff

is not bound under res adjudicata by the final discharge

order in the Estate of Althea Dick. I note particularly

the corporate responsibility and position of the

defendant at relevant times.

The motion of the defendant for Summary

Judgment is denied. The defenses of laches and res

adjudicata are not established.

The motion of the plaintiff for Partial Summary

Judgment is denied except as to a Partial Judgment

and/or finding that the transaction described appears on

its face to be other than at arms length and for a

Appendix

purpose which was not in the best interest of the trust.

The burden of proof therefore has shifted to the

defendant. To the extent the motion seeks other relief it

is denied.

ENTERED: March 2, 1984

RICHARD M. BANER, Circuit Judge

Appendix

[Plaintiff's Exhibit "I," Vol. II, C-457]

RECORD SHEET

Case No. 82-CH-124 Page 12

3-14-84 Baner [Judge]

Cause Comes on For Hearing on Bfench] Tf[rial].

Counsel For Plaintiff & For Defendant Present

Dismissal Stipulation Re Pending Issues. Beneficiary]

Helen A. Dick Objects. Arglument] Heard Re

Settlement W/O Benefliciary's] Approval. Authorities

Reviewed And Court Offers To Consider Approval of

Settlement If Requested By Plaintiff Trustee. Not

Requested. Case Dismissed Per Stipulation Over

Obj[ection] of Helen A. Dick. Court Advises Her of 30

Day Limit For Motion to Vacate. Unlimited Leave To

Amend C/C Granted on 5/18/83 is Terminated & Leave

to File is Granted For 45 Days. * * *

Appendix

[Defendants' Exhibit #6, Vol. I, C-164]

IN THE CIRCUIT COURT OF

THE ELEVENTH JUDICIAL CIRCUIT

McLEAN COUNTY, ILLINOIS

PEOPLES BANK OF No. 82-CH-124

BLOOMINGTON,

As Successor Trustee of trusts

created by the Will of George F.

Dick, Jr., deceased, and as Trustee

of trusts created by the Will of

Althea M. Dick, deceased,

Plaintiff,

Vv.

GEORGE F. DICK II, et al.,

Defendants.

STIPULATION

[filed March 14, 1984]

NOW COME PEOPLES BANK OF BLOOM-

INGTON, as Successor Trustee of trusts created by the

Will of George F. Dick, Jr., deceased, and the Will of

Althea M. Dick, deceased, plaintiff-counterdefendant,

by Samuels, Miller, Schroeder, Jackson & Sly, its

attomeys, and GEORGE F. DICK III, defendant-

counterplaintiff, by Albert H. Hoopes and Tenney,

Tietz & Heavner, his attorneys, and hereby stipulate

that the claims and causes of actions [sic] and counter-

claims of said parties now pending in this cause have

been fully compromised and settled and, therefore, this

cause should be dismissed as to these parties with

prejudice.

PEOPLES BANK OF BLOOMINGTON,

as Successor Trustee of trusts

created by the Will of George F.

Appendix

Dick, Jr., deceased, and

as Trustee of trusts created by the Will

of Althea M. Dick, deceased,

By SAMUELS, MILLER, SCHROEDER,

JACKSON & SLY, Its Attorneys

GEORGE F. DICK III, by his attorneys,

Albert H. Hoopes, and ~

TENNEY, TIETZ & HEAVNER

ee a. a ST Si

ORDER

THIS CAUSE comes on for hearing on the

Stipulation of PEOPLES BANK OF BLOOMINGTON,

as Successor Trustee of trusts created by the Wills of

George F. Dick, Jr., deceased, and Althea M. Dick,

deceased, by Samuels, Miller, Schroeder, Jackson &

Sly, its attorneys, and GEORGE F. DICK II, by Albert

H. Hoopes and Tenney, Tietz & Heavner, his attorneys.

The Court is fully informed in the premises; therefore,

IT IS ORDERED that the above and foregoing

cause as to all pending counts involving causes of

actions, claims or counterclaims by and between the

parties to the said Stipulation be dismissed with

prejudice, each said party to pay its or his own costs;

costs are paid.

DATED this l4th day of March, 1984.

RICHARD M. BANER, Judge

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