In re Estate of Pawlinski , 407 Ill. App. 3d 957 ( 2011 )

SIXTH DIVISION
January 21, 2011
No. 1-09-2785
In re ESTATE OF ) Appeal from the
) Circuit Court of
VICTORIA M. PAWLINSKI, ) Cook County,
)
Deceased )
)
(Margaret T. Calvert, and )
Edward J. Pawlinski, )
)
Plaintiffs-Appellees, )
)
v. ) No. 04 P 008095)
Sidmund J. Pawlinski ) The Honorable
) Jeffrey A. Malak,
Defendant-Appellant). ) Judge Presiding.
PRESIDING JUSTICE GARCIA delivered the judgment of the
court, with opinion.
Justices Cahill and McBride concurred in the judgment and
opinion.
OPINION
The decedent, Victoria M. Pawlinski, is survived by three
children, appellant Sidmund J. Pawlinski (Sid) and appellees
Edward Pawlinski (Ed) and Margaret Pawlinski Calvert. Sid, as
executor of Victoria's will, filed a final account of the
estate's assets for distribution amongst the three heirs. The
final account did not include a number of bank certificates of
deposit (CDs), worth over $500,000 combined and each titled
jointly to Sid and Victoria. Ed and Margaret challenged the
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omissions in a citation to recover the CDs. Following an
evidentiary hearing, Judge Jeffery A. Malak ordered the CDs be
included in the assets of the estate. The CDs were retitled to
Sid and Victoria as joint tenants after a grant of power of
attorney by Victoria to Sid. Judge Malak found Sid failed to
overcome the presumption of undue influence by clear and
convincing evidence. Sid contends Judge Malak erred in his
application of the presumption of undue influence in light of the
evidence presented, in his failure to find that Ed and Margaret
"conceded" that Sid met his burden of overcoming the presumption
of undue influence when Ed and Margaret introduced rebuttal
evidence, and in his rejection of Sid's motion to reopen the
proofs. We find Judge Malak properly applied the strong
presumption of undue influence, favored by Illinois courts,
against a fiduciary and his ruling at the conclusion of the
evidentiary hearing is not against the manifest weight of the
evidence. Because Sid's motion to reopen the proofs was filed on
the same day as the notice of appeal and was not ruled upon until
several months thereafter, the propriety of that ruling is not
properly before us. We affirm in part and dismiss in part.
BACKGROUND
Victoria Pawlinski died on August 24, 2004, survived by her
three children, Sid, Ed, and Margaret. Victoria moved to Sid's
home in early February 2002 following the death of her husband,
Sidmund Pawlinski, Sr. (Sid Sr.), on January 31, 2002. At the
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time of Sid Sr.'s death, both he and Victoria were residing in a
nursing home. While a resident of the nursing home, Victoria
granted Sid power of attorney on February 1, 2002. Victoria
resided with Sid until her death on August 24, 2004.
Victoria's will was admitted to probate on December 3, 2004,
and, in accordance with its terms, Sid was appointed executor of
her estate. The will stated Vitoria's intention "to provide for
all [her] children." The will provided that the tangible
personal property and all remaining property Victoria owned at
the time of her death pass to the trustee of the "Victoria M.
Pawlinski Trust [Pawlinski Trust] dated May 31, 2002." However,
the parties were unable to locate the Pawlinski Trust document by
the time of the hearing. Following the entry of the order
declaring the three children sole heirs of Victoria, Sid filed a
first and final account of the assets of the estate for equal
distribution amongst Sid, Ed, and Margaret.
On July 7, 2006, Ed and Margaret filed a citation to
discover assets of the estate alleging Sid possessed and withheld
from the estate CDs with multiple banks worth over $500,000.
Upon review of the citation, Judge Malak converted it to a
citation to recover assets, which he issued on October 18, 2006.
Judge Malak also granted Ed and Margaret's motion for partial
summary judgment, finding that a fiduciary relationship existed
between Sid and Victoria from February 1, 2002, when she
appointed Sid as her attorney-in-fact, until her death. The
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existence of a fiduciary relationship gave rise to a presumption
that any transaction executed by Victoria for Sid's benefit
during that period was fraudulent as a product of undue
influence. Judge Malak noted that the presumption could only be
overcome by clear and convincing evidence. Beginning in April
and concluding in June 2009, Judge Malak conducted an evidentiary
hearing on the citation to recover assets to determine whether
the CDs should be included as assets of the estate. We set out
the testimony of only those witnesses that impact the issue on
appeal.
Attorney Arthur Douglas Wellman testified he had represented
Sid in various matters for the previous 15 years. In January
2002, Sid contacted him regarding his parents, both of whom were
ill and living in a nursing home. Attorney Wellman met with Sid
Sr., who stated his wish to grant Sid power of attorney over the
assets he held jointly with Victoria. Before a power of attorney
could be executed, Sid Sr. passed away on January 31, 2002.
Attorney Wellman then met with Victoria in the nursing home on
February 1, 2002. She granted power of attorney to Sid that same
day and indicated to attorney Wellman that she "entrusted [Sid]
implicitly." Sid was present when Victoria signed the power of
attorney, accepted the appointment as Victoria's attorney-in-fact
and agreed to "perform in said fiduciary capacity consistent with
[Victoria's] best interests."
Attorney Wellman met with Victoria again later in February
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2002 at Sid's home. According to attorney Wellman, the two met
alone in a bedroom. Victoria revealed that her estate was worth
over $1 million. Attorney Wellman encouraged Victoria to have
financial representatives meet with her in the home to discuss
how she could get the highest rate of return on her money.
Victoria informed attorney Wellman that both she and her husband
wanted Sid to help them with their financial affairs and that the
bulk of her bank accounts and CDs should go to him upon her
death. They discussed retitling some of her accounts jointly
with Sid.
Attorney Wellman testified he prepared a will for Victoria,
which was designed to pour the majority of her assets into an
irrevocable trust he also prepared. The assets placed into the
trust would go to Sid, Sid's wife, and Sid's son; any assets not
placed in the trust would be distributed equally amongst Sid, Ed,
and Margaret. To challenge the existence of a pourover trust, Ed
and Margaret's attorney introduced into evidence a letter from
attorney Wellman dated April 5, 2005, which stated, "There was no
living trust or trust of any kind executed or in existence at the
time of [Victoria's] death to [my] knowledge or in my
possession." No pourover trust was ever introduced at the
citation hearing.
Sid testified that he never discussed the power of attorney
with attorney Wellman and that it was his parents' wish that he
hold power of attorney over their assets. Under the power of
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attorney, Sid paid bills for his mother through a checking
account his mother opened listing Sid as a joint tenant. He also
added his name as joint tenant with Victoria to CDs at three
different banks that had been previously titled to Victoria and
Sid Sr. Sid denied participating in any of the meetings between
attorney Wellman and Victoria, although he was aware attorney
Wellman was preparing her will.
Sid testified that sometime in early March 2002, at
Victoria's request, he arranged for representatives from LaSalle
Bank to come to his house to speak with Victoria. According to
Sid, he remained in the kitchen having coffee while the two
LaSalle Bank representatives met with Victoria in the dining
room. Shortly after this meeting, Sid went to LaSalle Bank by
himself to conduct business on his mother's behalf concerning
three CDs, which, at the time, were titled jointly to Victoria
and Sid Sr. Sid testified that "whatever my mother had told them
to do at the house, that's what was done with the CDs." While
Sid was at the bank, the three CD accounts were consolidated into
a single $88,000 CD titled to Victoria and Sid as joint tenants,
with a right of survivorship, on the authority granted by the
power of attorney.
Sid also visited TCF Bank in late March 2002 where Victoria
and Sid Sr., as joint tenants, held a CD worth $100,000. Sid
arranged for a TCF representative to meet with Victoria at his
house. Sid testified that when the TCF representative arrived,
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Sid introduced his mother and left the room. He "went about
[his] business" while the TCF representative and Victoria talked
alone. Sid denied discussing any changes to the TCF CD with
Victoria. A TCF CD with the same account number and balance as
the CD titled jointly to Victoria and Sid Sr. was introduced into
evidence. This TCF CD listed Victoria and Sid as joint tenants.
Sid explained the TCF CD was merely a renewal of the CD he
secured from a TCF banker on August 6, 2004, under the authority
of the power of attorney given by Victoria.
Additionally, Sid testified that in March 2002 he contacted
Lawrence Knight, a manager of MB Financial Bank, to arrange a
home visit with Victoria regarding some accounts she had at MB.
At the time, Victoria had three CDs at MB: two with a combined
worth of $85,000 and one worth $94,000, all of which were jointly
titled to Victoria and Sid Sr. According to Sid's testimony,
when Knight arrived at Sid's home, Sid introduced Knight to his
mother and left the room while the two discussed her MB accounts.
The MB CDs were later retitled jointly to Victoria and Sid. Sid
testified that the changes occurred after Victoria met with
Knight at the house, but he could not recall whether he appeared
personally at MB Financial Bank to complete the retitling of the
CDs.
The parties stipulated to the introduction of the evidence
deposition, conducted by telephone, of Knight, who at the time of
the hearing resided in Colorado and was no longer employed at MB
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Financial Bank. In his deposition, Knight confirmed that Sid
came to the branch office to arrange a meeting with Victoria at
Sid's home concerning the MB CDs. Knight traveled to the home
alone, where he met with Victoria, Sid, and Sid's wife. Knight
testified that Sid and his wife were present throughout the
meeting with Victoria, but could not recall whether anyone other
than he and Victoria sat at the table during their meeting. When
asked whether Sid and his wife spoke up during the meeting,
Knight testified he was "sure they did" because Sid "was in the
room, so I'm sure that he *** joined in the conversation."
Knight testified that he believed Victoria was capable of making
decisions about the account and that it was her desire to change
the CDs to allow Sid to receive the money upon her death. Knight
testified that he arrived at Sid's home with the forms necessary
to retitle the MB CDs in Victoria and Sid's names, which he
prepared in advance of the meeting. The only person with whom
Knight discussed the CDs before meeting with Victoria was Sid.
He could not recall, however, the specific conversations he must
have had with Sid about the changes to the MB CDs reflected in
the forms he brought to the home.
Near the close of the hearing, the parties discussed
stipulating to Ed and Margaret's rebuttal evidence, which
consisted of signature cards and other documents subpoenaed from
the banks holding the CDs. Sid's counsel argued that while he
had the initial burden to overcome any presumption of undue
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influence, if Ed and Margaret introduced rebuttal evidence "they
may be conceding that [Sid had] overcome [that] burden." Judge
Malak acknowledged the "possibility" that the introduction of
rebuttal evidence might constitute such a concession. Ed and
Margaret introduced the rebuttal evidence, recalling Sid to
provide the foundation to introduce the rebuttal documents into
evidence. Following the close of evidence, Sid's counsel argued
that "at the point [Ed and Margaret] put rebuttal evidence on, I
think they acknowledged by those actions that we had satisfied
our burden."
On July 14, 2009, Judge Malak entered an order finding the
contested CDs to be assets of the estate. In his decision, Judge
Malak noted that Knight's testimony was the only evidence
presented by a noninterested party. Relying primarily on the
substance of Knight's testimony, Judge Malak concluded that "the
presumption of undue influence has [not] been overcome by clear
and convincing evidence." Judge Malak's order made no mention of
Sid's contention that the introduction of rebuttal evidence by Ed
and Margaret was a concession that Sid had overcome the
presumption of undue influence. Sid's motion for reconsideration
filed on August 13, 2009, was denied by Judge Malak on September
15, 2009. On October 15, 2009, Sid filed the notice of appeal,
triggering this court's jurisdiction. On the same day, Sid filed
in the circuit court a motion to reopen the proofs to admit a
copy of the purported trust agreement referenced in Victoria's
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will, which the motion alleged was discovered on October 3, 2009.
The record before us includes Judge Malak's order of February 10,
2010, denying the motion.
ANALYSIS
Before addressing the merits of this appeal, we consider the
threshold issue of jurisdiction. See Mund v. Brown, 393 Ill.
App. 3d 994, 996, 913 N.E.2d 1225 (2009), (" '[T]he appellate
court has *** [a] duty to consider its jurisdiction before
proceeding to the merits of the case.' ") (quoting Almgren v.
Rush-Presbyterian-St. Lukes Medical Center, 162 Ill.2d 205, 210,
642 N.E.2d 1225 (1994)). In their responsive brief, Ed and
Margaret contend that the orders from which this appeal is taken
are not final and appealable, noting that the estate remains open
in probate court. In his reply brief, Sid responds that the
orders resolved the parties' property rights regarding the CDs,
making the orders final and appealable.
Jurisdiction
"A final order is one that 'disposes of the rights of the
parties either with respect to the entire controversy or some
definite and separate portion thereof.' " In re Estate of Yucis,
382 Ill. App. 3d 1062, 1069, 890 N.E.2d 964 (2008) (quoting
Arachnid, Inc. v. Beall, 210 Ill. App. 3d 1096, 1103, 569 N.E.2d
1273 (1991)). While generally an appeal can only be taken from a
judgment as to fewer than all claims "if the trial court has made
an express written finding that there is no just reason for
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delaying either enforcement or appeal or both" (Ill. S. Ct. R.
304(a) (eff. Jan 1, 2006)), no such finding is required to appeal
from an order "entered in the administration of an estate,
guardianship, or similar proceeding which finally determines a
right or status of a party" (Ill. S. Ct. R. 304(b)(1) (eff. Jan
1, 2006)). This court has noted in the past that "[o]rders
within the scope of Rule 304(b)(1), even though entered before
the final settlement of estate proceedings, must be appealed
within 30 days of entry or be barred." Stephen v. Huckaba, 361
Ill. App. 3d 1047, 1051, 838 N.E.2d 347 (2005).
Guided by the principles of finality set out above, we find
Ed and Margaret's lack-of-jurisdiction claim unavailing. The
order of July 14, 2009, settled the parties' rights to the CDs at
issue. Whether the CDs were assets of the estate constituted a
" 'definite and separate portion' " of the controversy between
the parties. Estate of Yucis, 382 Ill. App. 3d at 1069 (quoting
Arachnid, Inc., 210 Ill. App. 3d at 1103). The estate was opened
in 2004; the converted petition to recover assets was filed in
2006; the hearing was held in 2009. " 'A central reason behind
making the time for appeal of such orders mandatory, and not
optional, is that certainty as to some issues is a necessity
during the lengthy procedure of estate administration.' "
Stephen, 361 Ill. App. 3d at 1051 (quoting In re Estate of Kime,
95 Ill. App. 3d 262, 268, 419 N.E.2d 1246 (1981)). Rather than
call into question the finality of the order of July 14, 2009,
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the rule regarding appeals in the administration of estates made
the appeal of the order within 30 days of its entry mandatory.
"Orders within the scope of Rule 304(b)(1), even though entered
before the final settlement of estate proceedings, must be
appealed within 30 days of entry or be barred." Stephen, 361
Ill. App. 3d at 1051. We have jurisdiction to decide this
appeal.
Presumption of Undue Influence
We turn to the first substantive issue Sid raises in this
appeal. He contends the circuit court erred in its application
of the presumption of undue influence, which each side agrees
applies to the retitling of the CDs to Victoria and Sid as joint
tenants. Sid argues the circuit court, in actuality, imposed
upon him the burden of persuasion that no undue influence
occurred, a burden that legally rested with Ed and Margaret.
Ed and Margaret argue the circuit court properly applied
Illinois law regarding the presumption of undue influence raised
by a fiduciary relationship. Namely, the burden fell on Sid in
his fiduciary capacity to rebut by clear and convincing evidence
that the retitling of the CDs to Victoria and Sid was not the
product of undue influence and that he failed to meet this
burden.
Standard of Review
Sid acknowledges in his main brief that "Generally speaking,
a trial court's ruling on a Citation in a probate matter would be
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subject to review pursuant to the manifest weight of the evidence
standard." He contends, however, premised on his contention that
the burden of persuasion was shifted from Ed and Margaret, that
the trial court committed an error of law, which we review de
novo. He contends this error of law extended to the trial
court's ruling "when it concluded, based upon purportedly
contradictory testimony, that the presumption of undue influence
had not been overcome by Sid."
Ed and Margaret agree that if the only issue presented was
whether the burden of persuasion had been shifted, that question
is one of law. They contend, however, the real question before
us concerns an evidentiary finding the circuit court made after
it "properly considered and weighed the evidence produced by the
parties." Such a ruling is subject to the manifest weight of the
evidence standard.
We agree with Sid that whether the burden of persuasion was
shifted raises a question of law. We do not agree, however, that
the record provides any support that the burden of persuasion was
shifted to Sid. Nor does Sid attempt to persuade us that this is
so. Rather, Sid asserts this claim as a basis to explain the
trial judge's ruling. However, the ruling was very clear: "the
Court may not say that the presumption of undue influence has
been overcome by clear and convincing evidence."
We agree with Ed and Margaret that the trial judge, as trier
of fact, "considered and weighed the evidence produced by the
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parties" to decide questions of fact. As our supreme court has
held, such factual findings are reviewed against the manifest
weight of the evidence. "The only issue raised in this appeal is
whether the trial court's finding [that the evidence was not
sufficient to overcome the strong presumption of undue influence]
was contrary to the manifest weight of the evidence." Klaskin v.
Klepak, 126 Ill. 2d 376, 389, 534 N.E.2d 971 (1989); In re Estate
of Miller, 334 Ill. App. 3d 692, 699, 778 N.E.2d 262 (2002)
(trial court found the evidence insufficient to overcome the
strong presumption of undue influence, a finding an appellate
court will reverse only if it is against the manifest weight of
the evidence (citing Klaskin, 126 Ill. 2d at 389)).
Clear and Convincing Evidence
Sid acknowledges that this case turns on whether he met his
burden "to rebut the presumption by clear and convincing proof
that the [contested] transaction[s] [were] fair and equitable and
did not result from undue influence." While repeating the
correct standard, Sid appears to lessen his burden.
"Thus, to the extent that the Circuit
Court's conclusion that the presumption of
undue influence was not overcome by clear and
convincing evidence amounts to a statement by
the Circuit Court that it was not persuaded
by SID's evidence, then the Circuit Court
erred as a matter of law. By producing
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evidence which could disprove that there was
undue influence, SID rebutted the presumption
of fraud such that the Circuit Court should
have weighed the evidence to determine
whether EDWARD and MARGARET satisfied their
burden of proving undue influence."
(Emphasis added.)
As we set out above, the case law is to the contrary. The trial
judge's decision on whether the legal presumption has been met is
entitled to deference as reflected by the manifest weight of the
evidence standard. Klaskin, 126 Ill. 2d at 389; Estate of
Miller, 334 Ill. App. 3d at 699.
Sid's reliance on Franciscan Sisters that his "producing
[some] evidence which could disprove that there was undue
influence" burst the presumption bubble is misplaced. Franciscan
Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 448 N.E.2d 872(1983). In Franciscan Sisters, the defendant lawyer both drafted
the will and was to benefit under the will, which gave rise to a
legal presumption of undue influence. Before the appellate
court, the defendant lawyer claimed "that the trial court had
misunderstood the effect of the presumption." Franciscan
Sisters, 95 Ill. 2d at 456. The appellate court set out the
misunderstanding in the trial court's own words: " 'In making
this finding, the Court, as fact finder, realizes the evidence
would not have been sufficient to upset the will if the
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presumption was not in existence.' " Franciscan Sisters Health
Care Corp. v. Dean, 102 Ill. App. 3d 61, 67, 429 N.E.2d 914(1981).
Whether the legacy was the product of undue influence turned
on the testator's "state of mind on *** the day that she signed
the will." Franciscan Sisters, 95 Ill. 2d at 465. The only
direct evidence offered as to the testator's state of mind on the
day she signed the will was by witnesses on behalf of the
defendant lawyer. The appellate court majority found the
granting of the legacy was an independent act on the part of the
testator, as the witnesses to the signing of the will testified,
which satisfied the clear and convincing standard so as to burst
the legal presumption bubble. Thus, the circuit court was
mistaken in its belief that the presumption remained after
sufficient evidence was presented that no undue influence was at
work in the drafting of the will. The supreme court agreed.
"Our decision here affirms the appellate court, which held that
after the presumption is rebutted as a matter of law 'what
remains is a factual question, and we remand the cause to the
trial judge as trier of fact to assess the strength of the
evidence.' (102 Ill. App. 3d 61, 70)" Franciscan Sisters, 95
Ill. 2d at 466. The presumption, having burst by a showing of
clear and convincing evidence, could no longer be relied upon in
assessing the evidence. Franciscan Sisters, 95 Ill. 2d at 466.
Here, the trial judge made no statement similar to that of
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the trial judge in Franciscan Sisters. Rather, the trial judge
here understood that the amount of evidence Sid was required to
present to meet the presumption varied with the strength of the
facts supporting the presumption, as the supreme court made clear
in Franciscan Sisters. "If a strong presumption arises, the
weight of the evidence brought in to rebut it must be great."
Franciscan Sisters, 95 Ill. 2d at 463. The term "clear and
convincing" is a relative term. "The amount of evidence that is
required from an adversary to meet the presumption is not
determined by any fixed rule. A party may simply have to respond
with some evidence or may have to respond with substantial
evidence. If a strong presumption arises, the weight of the
evidence brought in to rebut must be great." (Emphasis added.)
Franciscan Sisters, 95 Ill. 2d at 463.
While "some evidence" may theoretically be sufficient to
rebut the legal presumption of undue influence, we see no benefit
to the use of the term "some evidence" or "producing evidence" as
Sid asserts. The "clear and convincing" quantum of evidence
needed to overcome the presumption of undue influence has been
adopted as the standard generally applicable to fiduciary
relationships, not confined to the context of an attorney-client
relationship. See In re Estate of Wessels, 203 Ill. App. 3d
1080, 1087, 561 N.E.2d 1212 (1990) ("clear and convincing
evidence is required to rebut the presumption of fraud or undue
influence arising from transactions within any fiduciary
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relationship, not just those involving attorneys and their
clients") (citing Lamb v. Lamb, 124 Ill. App. 3d 687, 464 N.E.2d
873 (1984)).
It is the strength of the presumption that arose in this
case that distinguishes it from Franciscan Sisters. Here, the
evidence went far beyond the mere signing of the power of
attorney by Victoria to Sid. The circuit court set forth the
critical circumstances regarding the signing of the power of
attorney by Victoria and the retitling of the CDs held at three
different banks with Victoria and Sid as joint tenants, which
demonstrated the strength of the showing supporting the
presumption.
The circuit court characterized the signing of the power of
attorney as "somewhat unusual." Victoria signed the power of
attorney the day after Sid Sr. died, which suggests attorney
Wellman and Sid met with Victoria at the nursing home with the
power of attorney in hand. "The Power of Attorney form is
clearly designated for Mrs. Victoria Pawlinski, but there is no
indication that she requested it." The circuit court noted that
at times Sid claimed "he did not use the Power of Attorney to
make any change[s] [to the CDs.]" At other times, Sid "testified
that he 'may have' used the Power of Attorney to change a
certificate and that he 'might have' become a joint tenant
thereof."
Because much of the evidence presented by the parties came
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from the parties themselves or witnesses that were closely
aligned to one side or the other, the trial judge singled out the
testimony of Lawrence Knight, the then acting branch manager of
MB Financial Bank, as a "totally noninterested" witness. The
trial judge found Knight contradicted Sid in "two major areas."
Sid claimed neither he nor his wife was present during the
meeting between Knight and Victoria. The circuit court found the
contrary to be true: "Mr. Knight testified that they were not
only present, but spoke during the meeting." Sid also claimed
that he merely arranged to have representatives of the three
banks meet with Victoria at his home to discuss her assets and,
as the circuit court found, "he did not discuss the particulars
of the certificates or his mother's desires [regarding changing
the titles to the CDs] with any of the bankers." As to the CDs
held by MB Bank, Sid was asked, "Did you and [Knight] go through
the accounts that [Victoria] had on deposit at MB Bank at that
time?" He answered, "No." Sid claimed, "I just explained to
[Knight] my situation was my mother wasn't mobile enough and that
she needed someone to come and speak with her about her assets."
Knight, however, arrived at Sid's home with forms necessary to
add Sid's name to the CDs held by MB Financial Bank. Knight
spoke only to Sid regarding Victoria's CDs before making the trip
to meet with Victoria. A strong inference arises from Knight's
testimony that Sid anticipated the use of those forms at Knight's
meeting with Victoria and requested that Knight come prepared.
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The circuit court also pointed out that Sid failed to come
forward with any witnesses that might shed light on the
discussions he had with representatives of the other two banks.
Knight was the only bank official that testified, though Sid
testified that two LaSalle Bank representatives visited with
Victoria at his home. "[T]he Court has no information as to what
transpired at the [other banks] and who was present at any
discussion at the respondent's home during the discussions with
Victoria." It is fair to infer that the circuit court considered
the absence of such evidence in assessing whether Sid met his
burden of rebutting the strong showing of the presumption of
undue influence.
In his main brief, Sid attempts to lessen the significance
of the "two major areas" of conflict with Knight's testimony.
"Noticeably absent from the record is testimony from Mr. Knight
indicating that SID or his wife or anyone else participated in
discussions specifically regarding the accounts. Furthermore,
there is nothing in Mr. Knight's testimony which would indicate
that SID was instructing Mr. Knight or VICTORIA about how the
accounts should be retitled." Based on the record before us,
however, the trial judge, as trier of fact, found little
significance in the absence of direct testimony regarding the
discussions Sid may have had with Knight concerning the retitling
of the CDs. Because this case involves the strength of the
showing supporting the presumption of undue influence, that no
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direct testimony of undue influence was elicited is of no benefit
to Sid; it fell to Sid to affirmatively meet the strong
presumption of undue influence with clear and convincing evidence
of his own. Franciscan Sisters, 95 Ill. 2d at 463.
We find no basis to question the circuit court's assessment
of the evidence. We agree that the evidence Sid presented failed
to reach the clear and convincing threshold to rebut the strong
presumption of undue influence. See In re Estate of DeJarnette,
286 Ill. App. 3d 1082, 1088, 677 N.E.2d 1024 (1997) ("Significant
factors in meeting that burden [to rebut the presumption of undue
influence] include a showing that the fiduciary made a frank
disclosure of the information he had, he paid adequate
consideration, and the principal had competent and independent
advice."). The trial judge's finding against Sid is consistent
with the manifest weight of the evidence.
Rebuttal Evidence
In his main brief, Sid contends Ed and Margaret's decision
to introduce rebuttal evidence "waived the presumption of undue
influence." To support this contention, Sid quotes the nature of
rebuttal evidence from Walters v. Yellow Cab Co., 273 Ill. App.
3d 729, 739-40, 653 N.E.2d 785 (1995) (rebuttal evidence is
offered to "explain, repel, contradict, or disprove evidence
presented by the defendant"). He argues that by offering
rebuttal evidence, "EDWARD and MARGARET necessarily admitted that
SID introduced evidence sufficient to meet his burden of
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production." We disagree.
While that explanation is a "possibility" as noted by the
trial judge, it fell to the trial judge to decide whether Sid's
evidence was "sufficient" to rebut the presumption of undue
influence. The trial judge ruled Sid's evidence was not. As we
ruled above, that finding is consistent with the manifest weight
of the evidence. Nor are we persuaded that the bank documents
introduced by Ed and Margaret during rebuttal should somehow
lessen Sid's burden when had the same evidence been introduced
during Ed and Margaret's case in chief, Sid would be deprived of
the argument he makes now. Sid offers no authority for this
novel proposition; nor will we provide him with one.
Motion to Reopen
Finally, Sid argues the circuit court erred in denying his
motion to reopen the proofs to admit a copy of a trust allegedly
executed by Victoria and discovered on October 3, 2009. The
motion to reopen was filed on the same day Sid filed his notice
of appeal. The circuit court denied the motion several months
later. Sid argues that the circuit court abused its discretion
in denying his motion.
We dismiss that portion of the appeal. See Estate of
DeJarnette, 286 Ill. App. 3d at 1091 (because "the trial court
never ruled on the motion for sanctions," the appellate court
held petitioners' claim seeking sanctions based on the citation
proceedings was not properly before it). As we indicated above,
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a final settlement of the estate proceedings before us had not
been entered by the time of this appeal. This appeal is limited
to that " 'definite and separate portion' " of the controversy
between the parties that settled the rights of the parties to the
bank CDs. Estate of Yucis, 382 Ill. App. 3d at 1069 (quoting
Arachnid, Inc., 210 Ill. App. 3d at 1103).
CONCLUSION
Because the CDs that are the subject of this appeal were
retitled in Sid's favor after Victoria granted him power of
attorney, a presumption of undue influence arose, which required
Sid to produce clear and convincing evidence to rebut. A strong
showing supporting the presumption of undue influence was made in
the citation proceedings below. Consistent with the manifest
weight of the evidence, the circuit court ruled that the
presumption was not rebutted, even after Ed and Margaret chose to
introduce limited rebuttal evidence. The bank CDs were assets of
the estate. The issue regarding whether Sid's motion to reopen
was correctly dismissed some months after the notice of appeal
was filed is not properly before us.
Affirmed in part and dismissed in part.
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1-09-2785
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________
IN RE ESTATE OF
VICTORIA M. PAWLINSKI,
Deceased
(Margaret T. Calvert, and Edward J. Pawlinski,
Plaintiffs-Appellees,
v.
Sidmund J. Pawlinski,
Defendant-Appellant).
________________________________________________________________
No. 1-09-2785
Appellate Court of Illinois
First District, Sixth Division
Filed: January 21, 2011
_________________________________________________________________
PRESIDING JUSTICE GARCIA delivered the opinion of the court.
CAHILL and MCBRIDE, JJ., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Malak, Judge Presiding
_________________________________________________________________
For DEFENDANT- Goldstine, Skrodzki, Russian,
APPELLANT Nemec and Hoff, Ltd.
William H. Hrabak, Jr.
Sara L. Spitler
835 McClintock Drive
Burr Ridge, IL 60527
For PLAINTIFF- James F. Dunneback
APPELLEES Anne M. Scheurich
Jessica K. Thomas
James F. Dunneback, P.C.
9501 W. 144th Avenue, Suite 200
Orland Park, IL 60462
24