Francine Kokenis v. DMYTRO KURYWCZAK, B. GEORGE OLEKSIUK, and B. GEORGE OLEKSIUK & ASSO., PC

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 25, 2023
Decided February 24, 2023
Before
DIANE S. SYKES, Chief Judge
DIANE P. WOOD, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2154
FRANCINE KOKENIS,
Plaintiff-Appellant,
v.
DMYTRO KURYWCZAK, B. GEORGE
OLEKSIUK, and B. GEORGE
OLEKSIUK & ASSO., PC,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 21 C 2413
Joan H. Lefkow,
Judge.
O R D E R
Francine Kokenis, a citizen of California, brought a malpractice suit against the
attorneys and law firm that represented her in Illinois probate proceedings. All of the
defendants are citizens of Illinois. The probate judge imposed sanctions against Kokenis
for submitting, and then defending, a handwriting expert’s report that she knew to be
false. Kokenis contends in this case that her lawyers committed legal malpractice by
filing the report in the probate matter, allegedly against her specific directions. The
district court granted the attorneys’ motion to dismiss for failure to state a claim.
Essentially, it thought that she had pleaded herself out of court, because the allegations
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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in the complaint amount to admissions that her own actions earned the sanctions,
wholly apart from anything her lawyers did. We agree with that analysis and affirm.
I
We take the following account from Kokenis’s complaint, accepting the facts she
asserts as true for present purposes and drawing reasonable inferences in her favor. See
Mashallah, Inc. v. W. Bend Mut. Ins. Co., 20 F.4th 311, 317 (7th Cir. 2021). We also take
judicial notice of public documents from the cases referenced in both the complaint and
the motion to dismiss, not for the truth of the matters asserted in those documents but
instead just to show what prompted the probate court’s actions. Geinosky v. City of
Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012).
In 2015, Kokenis settled a wrongful-termination lawsuit she had filed against her
father’s business, Delta Energy Corporation, and her siblings, managers of the firm.
See Kokenis v. Delta Energy Corp., No. 1:13-CV-07358 (N.D. Ill. May 29, 2015). Lavelle
Law represented Kokenis in this suit. In return for dismissal, Delta Energy paid Kokenis
$1.5 million, and Kokenis’s parents agreed they would maintain her one-third interest
in their estate. See id.
But Kokenis was not satisfied with the settlement for long. Soon after it was
reached, she hired Dmytro Kurywczak and B. George Oleksiuk, both members of B.
George Oleksiuk & Associates, PC, to represent her in a legal malpractice suit against
Lavelle Law in Illinois circuit court. Among other things, Kokenis alleged that Lavelle
lawyers had attached her signature to the settlement agreement without her
authorization. But she did not see that suit through to the end; instead, she dismissed it
voluntarily. Kokenis v. Lavelle Law, 2017 L 002785 (Ill. Cir. Ct. Jan. 1, 2018).
After Kokenis’s father died in 2016, she again hired Kurywczak and Oleksiuk,
this time to represent her in the probate proceedings. There she objected to the trustee’s
accounting of her share. Estate of James J. Kokenis, No. 2016 P 003676 (Ill. Cir. Ct. Jun. 13,
2016). The trustee defended the accounting on the ground that the settlement agreement
in the Delta Energy case had already released Kokenis’s claims. On her own initiative,
Kokenis commissioned and furnished to her attorneys the report of a handwriting
expert to analyze her own signature on the Delta Energy settlement agreement. The
expert concluded that it was forged. Oddly, Kokenis then passed the expert’s report
along to her attorneys, while at the same time admonishing them not to use the report
without her express approval. The attorneys disregarded her instructions and filed the
report with Kokenis’s response to the defendants’ motion to dismiss her objections. Her
attorneys argued that the Delta Energy settlement was invalid because Kokenis’s

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signature was “likely a forgery.” They did so despite the fact that Kokenis had, by then,
cashed her $1.5 million settlement check.
This led the trustee and Kokenis’s siblings to file motions against Kokenis
personally and against her attorneys for sanctions. Kokenis’s lawyers eventually
withdrew the allegation of forgery, and then they withdrew entirely from representing
Kokenis, who obtained new counsel. Meanwhile, the probate court was having trouble
pinning Kokenis down about whether she knew the assertion of forgery to be false at
the time she gave the report to her attorneys. It ordered a deposition before it ruled on
the pending sanctions motions. The court’s doubts were resolved when, at the
deposition, Kokenis admitted to hiring the handwriting expert and giving the report to
her attorneys though she already knew that her signature on the agreement was genuine.
She continued to insist, however, that the settlement agreement was not enforceable
because she did not sign the final page. When shown otherwise, she maintained that it
was a “mystery” to her how her signature “showed up on the last page” when she had
not put it there.
Through new counsel, Kokenis persisted for more than a year in asserting that
the settlement was not enforceable, but she ultimately stipulated that it was valid.
Kokenis and the parties then consented to an order dismissing the motion for sanctions
against her former attorneys (defendants here) and granting the motion for sanctions
against Kokenis personally. (The defendants have not argued that Kokenis’s consent to
be sanctioned in this manner precludes or estops her current argument that their
conduct proximately caused her to be sanctioned. Nor are they making much of the fact
that Kokenis is presumably still enjoying the benefit of the settlement, in the form of the
$1.5 million payment.)
At a later hearing, the probate court awarded the movants more than $120,000 in
costs and fees. In imposing the sanction, the probate court made the following findings:
(1) Kokenis intentionally and knowingly made a false statement when asserting that her
signature was forged; (2) in furtherance of that false statement, Kokenis retained a
handwriting expert to opine on whether the signature was forged; (3) Kokenis
intentionally and knowingly refused to acknowledge that her statement was false,
resulting in additional cost and delay; (4) she provided “highly implausible” testimony
when she asserted in her deposition that the settlement agreement was unenforceable;
and (5) her misconduct continued for an eighteen-month period.
Having lost in the probate court, Kokenis turned to federal court with this
lawsuit against her former attorneys and their firm; she is relying on the court’s
diversity jurisdiction. 28 U.S.C. § 1332. She raised three theories of recovery: first, that

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her former attorneys negligently submitted the handwriting expert’s report in the
probate case; second, that the attorneys failed to communicate an offer to settle the
sanctions motion; and third, that the attorneys were negligent by withdrawing the suit
against Lavelle Law and not refiling in time. The first two counts claimed damages both
in the amount of the sanction (approximately $120,000) and in the amount of the
expenses she sustained in fighting the sanction (about another $120,000); the third count
sought more than $250,000 from Lavelle Law for her lost chance of recovery.
The defendants moved to dismiss for failure to state a claim upon which relief
could be granted. See F ED. R. C IV. P. 12(b)(6). The district court concluded that Kokenis
had not stated a plausible claim of malpractice in the first count because of a lack of
proximate causation; it dismissed that count with prejudice. The court permitted the
second count to stand, and it dismissed the third with leave to replead. Kokenis moved
for reconsideration of the ruling on the first count. When that motion was denied, she
voluntarily dismissed the second count and agreed not to amend her complaint, thereby
resolving the third count. She is appealing both the dismissal of count one and the
denial of her motion to reconsider that ruling.
We ordered preliminary briefing on the questions whether the district court’s
judgment was final and whether the appeal was timely. Kokenis v. Kurywczak, No. 22-
2154 (7th Cir. Jul. 5, 2022). The parties explained, correctly, that there was a final
appealable decision once Kokenis relinquished the second and third claims, and her
notice of appeal was timely based on when her motion to reconsider was filed. We then
ordered the parties to proceed to merits briefing.
II
On appeal, Kokenis challenges only the dismissal of her first claim, which
concerned her former attorneys’ use of the expert report in probate court. But, as a
threshold issue, she contends that documents outside the complaint submitted by the
defendants—that is, the filings in the probate case—cannot be considered at the motion-
to-dismiss stage. See FED. R. C IV. P. 12(d). But at times—and this is one of them—such
documents can be considered for limited purposes. “This court has been relatively
liberal in its approach” to considering outside documents when they are central to the
complaint. Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir. 2009); see also F ED. R. C IV. P.
10(c) (“copy of written instrument that is an exhibit to a pleading is a part of the
pleading for all purposes”). Kokenis’s claim turns entirely on events that occurred in
the probate case, and she refers to those proceedings throughout her complaint. She has
not raised any serious challenge to whether these events occurred—no claim that the
transcripts were tampered with, or that they fail accurately to report what the judge

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said. The documents are a matter of public record, see Estate of James J. Kokenis, No. 2016
P 003676 (Ill. Cir. Ct. Jun. 13, 2016), available at https://casesearch.cookcounty
clerkofcourt.org/ProbateDocketSearchAPI.aspx; Kokenis v. Lavelle Law, 2017 L 002785 (Ill.
Cir. Ct. Jan. 1, 2018), available at https://casesearch.cookcountyclerkofcourt.org
/CivilCaseSearchAPI.aspx. Their authenticity cannot reasonably be questioned.
See Mueller v. Apple Leisure Corp., 880 F.3d 890, 895 (7th Cir. 2018); Geinosky, 675 F.3d at
745 n.1. That is all that matters for present purposes; we need not, and do not, assess
whether the judge ruled wisely or in accordance with state law.
On the merits, Kokenis contends that, contrary to the district court’s conclusion
that her own conduct in the probate case caused her damages, she stated a plausible
claim that her former attorneys caused her injury. She contends that by filing the expert
report in the probate matter, allegedly against her instructions, her attorneys cost her
more than $200,000 in sanctions and other expenses. But she misses the point when she
focuses so exclusively on that one action. Given the posture of the case, we accept that
she was the one who gave them the phony report, and that she warned them not to use
it without her okay. But it is indisputable that the probate court did not consider that to
be the last relevant act. She does not dispute the historical facts that the probate court
also said that she intentionally and knowingly refused to acknowledge that her
challenge to the signature was false, that her misconduct continued for an 18-month
period, and that she refused for months to acknowledge these facts.
We assess de novo whether Kokenis has stated a claim on which relief can be
granted. See UFT Com. Fin., LLC v. Fisher, 991 F.3d 854, 857 (7th Cir. 2021). To survive a
motion to dismiss, she needed plausibly to allege that misconduct committed by her
former attorneys injured her. Id.; Stevens v. McGuireWoods LLP, 43 N.E.3d 923, 927 (Ill.
2015). People in federal court do not need to plead “elements” or facts, but they do need
to present a story that holds together in a way that gives adequate notice to the
defendants. Auto Driveaway Franchise Sys., LLC v. Auto Driveaway Richmond, LLC,
928 F.3d 670, 675 (7th Cir. 2019); Chapman v. Yellow Cab Coop., 875 F.3d 846, 848 (7th Cir.
2017). If the pleading includes facts that definitively show that the defendants cannot be
held responsible, then the plaintiff has pleaded herself out of court. See Shott v. Katz,
829 F.3d 494, 497 (7th Cir. 2016).
Kokenis failed to state a malpractice claim because the pleadings, together with
the uncontested materials from the probate action, show that her independent
misconduct in the probate case caused her injuries. Put formally, it was an intervening
event that broke whatever causal chain her lawyers started when they submitted the
misleading expert report. Kokenis insists that the whole sequence would never have

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begun if her lawyers had heeded her warning not to use the report. (For that matter,
nothing would have happened if she had not commissioned the report to begin with,
knowing full well that her signature was not forged.) But no sanctions were imposed
until after her deposition, and at that time the probate judge left no doubt that the
sanction addressed her persistent refusal to drop that argument, not anything that her
lawyers did more than a year earlier.
Even taking into account the generous standard that applies to Rule 12(b)(6)
motions, Kokenis cannot prevail. As the probate judge concluded, Kokenis “refused to
acknowledge that her false statement [concerning the settlement’s validity] was
knowing and intentional,” and this “resulted in additional discovery, cost, and delay to
the underlying case.” In sum, the defendants’ submission of the report did not
proximately cause her loss. See Governmental Interinsurance Exch. v. Judge, 850 N.E.2d
183, 199 (Ill. 2006) (failure to perfect appeal not proximate cause where malpractice
plaintiff would have lost underlying case as a matter of law).
The defendants also argue that Kokenis loses as a matter of law because she
committed fraud on the probate court. As a matter of public policy, Illinois law does not
permit an intentional wrongdoer to recover damages for her wrongful actions. E.g.,
Goldstein v. Lustig, 507 N.E.2d 164, 170 (Ill. App. Ct. 1987). Kokenis knowingly filed false
pleadings and provided false testimony in a deposition in violation of Illinois Supreme
Court Rules. See I LL. S. C T. R. 137; Ittersagen v. Advocate Health & Hosps. Corp., 186 N.E.3d
378, 385 (Ill. 2021). (Kokenis argues that Rule 137 applies only to attorneys, but she is
wrong. It authorizes sanctions on a “represented party”; moreover, fraud on the probate
court could bar recovery in this suit even if the sanctionable conduct largely occurred
by Kokenis’s former attorneys. See I LL. S. C T. R. 137; Goldstein, 507 N.E.2d at 170.) The
defendants, however, did not raise this argument until their response to Kokenis’s
motion to reconsider, and waiting until such a motion to raise new legal theories is
discouraged. See Cehovic-Dixneuf v. Wong, 895 F.3d 927, 932 (7th Cir. 2018). In reviewing
a dismissal on the pleadings, we can affirm on any basis permitted by the record, but
only if the losing party had a fair opportunity to contest that ground in the district
court. Burke v. Boeing Co., 42 F.4th 716, 723 (7th Cir. 2022). That is not the case here.
Another point we flag, but do not reach, relates to the troublesome comity
questions that would arise if the federal courts were to step in and interfere with a state
court’s decision to sanction a litigant. Even if we could somehow find a potential claim
in her federal pleadings, a host of comity-based doctrines would almost certainly
compel us either to dismiss this action or to stay our hand.
We AFFIRM the judgment of the district court.

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