Weisberger v. Weisberger

ILLINOIS OFFICIAL REPORTS
Appellate Court
Weisberger v. Weisberger, 2011 IL App (1st) 101557Appellate Court LEAH WEISBERGER, Plaintiff-Appellee, v. SUZANNE
Caption WEISBERGER, Individually and as Trustee of the Amended and
Restated Jacob Brotman M.D. Declaration of Trust, and Brotman
Family Trust, Jacob Brotman, M.D., Grantor, Defendants (William
Weisberger, Defendant-Appellant).
District & No. First District, Sixth Division
Docket No. 1–10–1557
Filed June 17, 2011
Held In a conversion action alleging that plaintiff’s father withdrew funds,
(Note: This syllabus without authorization, from the accounts of a living trust that plaintiff
constitutes no part of the executed in which she was named as the sole trustee and sole
opinion of the court but beneficiary, the trial court properly entered summary judgment for
has been prepared by the plaintiff, since the right to the funds and the absolute and unconditional
Reporter of Decisions for right to the immediate possession of those funds rested with plaintiff’s
the convenience of the living trust, in which plaintiff was the sole trustee, regardless of the fact
reader.) that those funds may have come from her father, especially when funds
deposited into an account are presumed to belong to the person in
whose name the account is established; furthermore, there was no
dispute that plaintiff’s father withdrew the funds without authorization,
that plaintiff demanded the return of the funds, and that her father
refused.
Decision Under Appeal from the Circuit Court of Cook County, No. 08–CH–025989;
Review the Hon. Richard J. Billik, Jr., Judge, presiding.
Judgment Affirmed.
Counsel on David A. Novoselsky and Brian A. Schroeder, both of Novoselsky Law
Appeal Offices, of Chicago, for appellant.
Mitchell S. Feinberg and Sanjay Shivpuri, both of Chuhak & Tecson,
P.C., of Chicago, for appellee.
Panel JUSTICE R. GORDON delivered the judgment of the court, with
opinion.
Justices Cahill and McBride concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Leah Weisberger, age 29, filed a four-count amended complaint against her
mother and father, Suzanne and William Weisberger.
¶2 Counts I through III of the amended complaint concerned two trusts set up by Leah’s
grandfather, Jacob Brotman, which named Leah as the beneficiary and Suzanne as the
trustee. Suzanne is not a party in this appeal and counts I through III are not at issue on
appeal.
¶3 Count IV, which is at issue on appeal, alleges a conversion claim against her father,
William, involving his alleged unauthorized withdrawal of funds from a living trust that she
executed in which she was named as sole trustee and sole beneficiary.
¶4 As to count IV, the trial court granted Leah’s motion for summary judgment pursuant to
section 2–1005 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2–1005 (West
2008)), finding, inter alia, that there was no factual dispute that William was not a trustee
or beneficiary of the living trust Leah executed, that William removed funds in the trust
without Leah’s authorization, and that Leah demanded return of the funds, but William
refused. The trial court ordered William to deposit the funds that he withdrew from the trust
bank account with the clerk of the court, and William refused to do so.
¶5 After William failed to deposit the funds with the clerk of the court, the trial court
entered sanctions against William in the form of a monetary judgment in the amount of the
funds withdrawn from the trust. William appealed.
¶6 On appeal, William claims that the trial court erred in granting summary judgment in
favor of Leah on count IV. William argues that “the source and ownership of the funds” held
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in Leah’s living trust created a genuine issue of material fact that precluded summary
judgment. We reject this claim, and we affirm the trial court’s grant of summary judgment.
¶7 I. BACKGROUND
¶8 A. Complaint
¶9 On April 3, 2009, Leah filed a four-count “First Amended Verified Complaint for
Specific Performance, Removal of Trustee, Accounting, and Conversion” (amended
complaint), which alleges as follows: On July 6, 2001, Leah executed a living trust, titled
“Leah Weisberger Living Trust” (Leah’s living trust). Leah is the settlor of the trust and she
named herself sole beneficiary and sole trustee with the power to “distribute property in cash
or in kind.”
¶ 10 Concerning successor trustees, the trust agreement stated:
“When I cease to act as trustee, my mother SUZANNE WEISBERGER shall be
trustee. Should my mother SUZANNE WEISBERGER cease to act as trustee, my
father WILLIAM WEISBERGER shall be trustee.”
¶ 11 In count IV of her amended complaint, Leah alleges a conversion claim against her
father, William, individually, involving William’s unauthorized withdrawal of all the funds
held in her living trust. According to the amended complaint, Leah’s living trust held its
assets in Harris Bank money market account No. 850212466 and Harris Bank certificate of
deposit No. 6900141872 (collectively, the Harris accounts).
¶ 12 The Harris accounts are each titled “Leah Weisberger Living Trust,” with her social
security number, and designate Leah and William as “trustees” on the accounts. William was
a signatory on the Harris accounts and that is how he removed the funds. Leah alleges in her
complaint that: “William was named as a joint owner of [Harris accounts] with Leah for
convenience purposes.”
¶ 13 Exhibits attached to the amended complaint included a notice of maturity for the
certificate of deposit, a deposit statement, and a certificate of deposit renewal application.
Those exhibits showed that on December 27, 2007, an unspecified amount of money from
the Harris money market account was deposited into the Harris certificate of deposit, which
had a maturity date of six months, or June 27, 2007. On that date, the Harris certificate of
deposit matured and had a balance of $92,220.72. Also on that date, Leah withdrew $35,000
from the certificate of deposit and deposited it into the Harris money market account. Leah
then renewed the Harris certificate of deposit with a remaining amount of $57,220.72.
¶ 14 The amended complaint alleges that prior to July 1, 2008, a family dispute arose after
Suzanne and William, who are of the orthodox Jewish faith, discovered that Leah was dating
a non-Jewish man. According to the amended complaint, Suzanne and William did not
approve of the relationship and ceased to communicate with Leah.
¶ 15 B. William’s Discovery Deposition
¶ 16 On May 27, 2009, William testified in a discovery deposition and claimed that the Harris
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money market account that funded her trust was an account that he had opened and that it
contained only his funds.1 William further testified as follows:
“The reason I also opened that [Harris money market] account, originally,
because I wanted Leah to have credit, you know, credit cards when she was still
single and living with us. *** I wanted her to have checking with it. Once she got
married, I said to her, ‘Forget it.’ I left the money [in the Harris money market
account], that was my money.
***
Q. When was the [Harris money market] account first titled ‘The Leah
Weisberger Living Trust’?
A. I believe we did it afterwards, when she got–I don’t know, divorced or
separated from her husband, whenever it was, you know, then we titled it that way,
the living trust.
Q. So, the money at the Harris Bank account was created after Leah was
divorced?
A. No. In that account there was money already to begin with, from the
beginning.
Q. What account?
A. Which is the living trust account. There was money there from before. I never
touched it.”
¶ 17 At his deposition, William admitted that he removed all the money in the Harris accounts
in July of 2008, totaling $99,858.76, without Leah’s authorization, claiming that the money
belonged to him. William then deposited the funds into another Harris bank account jointly
owned by Suzanne and himself. When asked by Leah’s counsel whether he was refusing to
return the funds to Leah, the following colloquy took place:
“Q. Are you refusing to return to Leah the money that she has requested and
directed you to return to her?
***
A. This is my money, not her money over there. So, all that money that was in
that account is my money.
Q. All the money in the Leah Weisberger Living Trust account is your money?
A. In that 90, whatever thousand dollars that you’re claiming, yes, that was my
money.
Q. What proof do you have of deposits?
A. Of deposits?
Q. Yes, into that [Harris money market] account?
1
There is nothing in the record that indicates when the Harris money market account was
opened or the amount of money initially placed in Leah’s living trust.
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A. All the rents she was suppose[d] to pay, which we agreed upon, $950 a month.
Q. Do you have a rental agreement with her?
A. No, I [did] not sign [a] lease with her, with my daughter, you know.
Q. Why not?
A. Because I have a verbal agreement with her.
¶ 18 C. Leah’s Motion for Summary Judgment
¶ 19 On June 30, 2009, Leah filed a motion for summary judgment pursuant to section 2–1005
of the Code (735 ILCS 5/2–1005 (West 2008)) on all four counts of her amended complaint.
As to count IV, Leah claimed that summary judgment was warranted because there was no
genuine issue of material fact that: (1) William was not named a trustee or beneficiary in
Leah’s living trust; (2) William withdrew $99,858.76 from Leah’s living trust without her
authorization; (3) William deposited the funds from Leah’s living trust into his jointly owned
bank account with Suzanne; and (4) Leah demanded return of the funds, but William refused.
¶ 20 In her prayer for relief, she requested that the trial court either: (1) grant summary
judgment in her favor on count IV “for specific performance for the return of all monies and
assets taken by *** William from Leah’s living trust plus interest”; or (2), in the alternative,
grant summary judgment in her favor on count IV and “against *** William, finding [him]
liable for civil conversion in the amount of $99,858.76 plus pre-judgment interest.”
¶ 21 William filed a response to Leah’s motion claiming that the Harris money market account
was originally opened in his name, with his money, and therefore he transferred his own
money from the Harris money market account to his joint bank account with Suzanne.
¶ 22 After a hearing held on September 23, 2009, the trial court granted summary judgment
in favor of Leah on count IV and against William. The trial court issued a written ruling,
finding that there was no factual dispute that: (a) the Harris accounts were titled “Leah
Weisberger Living Trust”; (b) William is not named in Leah’s living trust as a trustee or
beneficiary; (c) William removed all of the funds from the Harris accounts without Leah’s
authorization; (d) William transferred the funds from the Harris accounts into his joint bank
account with Suzanne; (e) the amount of the funds removed from the Harris accounts totaled
$99,858.76; and (f) although Leah demanded the return of the funds, William refused.
¶ 23 The trial court considered William’s claim that the money in the Harris accounts was “all
the rents [Leah] was supposed to pay [him],” but instead, Leah deposited the money into the
Harris money market account. The trial court found that “[t]o the extent William believes he
has a claim for an outstanding debt, he can pursue such claims under applicable law, but he
is not entitled to keep the funds from [Leah’s living trust].” The trial court granted summary
judgment and ordered as follows:
“Plaintiff’s motion for summary judgment on count IV is granted in part. William
shall tender on or before October 7, 2009, the $99,858[.76] that he removed from the
[Harris] account[s] to the Clerk of the Court until further order of this court. In the
event that William does not place said funds with the Clerk of the Court or no longer
has access to the funds to comply, then this court will entertain a request for
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awarding the alternative relief that [Leah] requests to be entered against William.”
¶ 24 D. Defendants’ Motion to Reconsider Entry of Summary Judgment
¶ 25 On October 6, 2009, defendants filed a “motion to reconsider [the] summary judgment
ruling” (motion to reconsider). As to count IV, William claimed that a genuine issue of
material fact precluded summary judgment on count IV, because the funds in the Harris
money market account were funds he deposited into that account and that he was named as
a trustee for Leah’s living trust.
¶ 26 On October 7, 2009, William did not tender $99,858.76 to the clerk of the court.
¶ 27 After a hearing on December 17, 2009, the trial court denied defendants’ motion to
reconsider as to count IV, finding that “[e]ven if William were authorized to remove the
funds [from the Harris accounts] as [Leah’s] authorized agent at the time, which appears to
be one of his contentions, there is no admissible evidentiary inference or legal authority to
support the contention in the motion to reconsider that would allow William to keep the
funds in a jointly held account with Suzanne and deny [Leah], as William’s principal, access
to those funds for her benefit which she has demanded.”
¶ 28 E. Leah’s Petition for a Rule to Show Cause
¶ 29 On December 29, 2009, William still had not tendered $99,858.76 to the clerk of the
court. Leah filed a petition for a rule to show cause against William for his failure to comply
with the court’s September 23 order to tender the funds.
¶ 30 On January 25, 2010, the trial court held a hearing on Leah’s petition during which
William’s counsel requested that the trial court (1) enter a judgment in the amount of
$99,858.76 in favor of Leah and against William and (2) include Illinois Supreme Court Rule
304(a) (eff. Feb. 26, 2010) language to make the order final and appealable. Also during the
hearing, Leah’s counsel informed the court that Leah was willing to reach an amicable
resolution with William because she did not want to hold her father in contempt of court.
William’s counsel stated that he would speak with his client to determine if a resolution
could be reached. The trial court then continued the hearing to January 29, 2010, allowing
the parties to discuss a resolution.
¶ 31 On January 29, 2010, the parties informed the trial court that they were unable to reach
a resolution. The trial court then entered a rule to show cause against William to show why
he should not be held in contempt of court for his failure to tender $99,858.76 on or before
October 7, 2009.
¶ 32 At a hearing on April 29, 2010, William failed to appear. In its ruling issued April 30,
2010, the trial court found that it had ordered William to tender the $99,858.76 to the clerk
of the court, but William had failed to do so. The court also found that William did not claim
that he lacks the necessary funds to tender to the clerk of the court and did not offer a reason
for his failure to tender the funds as ordered. The trial court considered that the parties’
attempts to either settle the matter or to reach an amicable resolution outside of court were
to no avail. The trial court then determined as follows:
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“[A]n appropriate sanction, that is both reasonable and responsive to the facts,
circumstances and uncontradicted matters in the record, including the request
submitted by William, is for a judgment to be entered for the amount that William
is required to deposit with the Clerk of the Court pursuant to the [o]rder [of
September 23, 2009]. The entry of the judgment is also supported by the findings and
reasoning set forth in the [September 23] order and is consistent with the alternative
relief that Leah seeks in [her] pleading against William.”
¶ 33 The trial court entered a judgment in the amount of $99,858.76 in Leah’s favor and
against William and stated that its order was “a final order pursuant to Supreme Court Rule
304(a) and there was no just reason for delaying either enforcement or appeal or both.”
¶ 34 This appeal followed.
¶ 35 II. ANALYSIS
¶ 36 On appeal, William claims that the trial court erred in granting summary judgment in
favor of Leah on count IV. William argues that “the source and ownership of the funds” held
in Leah’s living trust created a genuine issue of material fact that precluded summary
judgment.
¶ 37 As an initial matter, Leah argues that William mischaracterizes the judgment from which
he appeals. Leah argues that William is appealing from the April 30, 2010, contempt order
that the trial court entered against William for his refusal to comply with its order to deposit
the funds with the clerk of the court.
¶ 38 In his reply brief, William does not argue whether the trial court abused its discretion in
imposing the sanction. Rather, he asks this court to “disregard [Leah’s] entire discussion of
the circuit court’s issuance of a contempt finding against [him] and the circuit court’s
resultant imposition of the ‘sanction’ of a judgment against [him].” He argues that the trial
court’s underlying order granting summary judgment resulted in the contempt finding, and
therefore, “the real issue in this appeal is the propriety of the circuit court’s granting of
[Leah’s] motion for summary judgment.” People ex rel. Burris v. Maraviglia, 264 Ill. App.
3d 392, 400 (1993) (“An appeal from a contempt order requires the reviewing court to
examine the propriety of the underlying orders which ultimately resulted in the finding of
contempt.”). Accordingly, we review whether the trial court properly granted summary
judgment in favor of Leah and against William on count IV.
¶ 39 A. Jurisdiction
¶ 40 On April 30, 2010, the trial court entered a contempt order imposing a sanction against
William in the amount of $99,858.76 and entered judgment on that amount. The trial court
stated in its written order that its contempt order is “a final order pursuant to Supreme Court
Rule 304(a) and there is no just reason for delaying either enforcement or appeal or both.”
Accordingly, this court has jurisdiction to hear this appeal pursuant to Illinois Supreme Court
Rule 304(a) (eff. Feb. 26, 2010).
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¶ 41 B. Standard of Review
¶ 42 The purpose of summary judgment is not to try an issue of fact but to determine whether
a triable issue of fact exists. Robidoux v. Oliphant, 201 Ill. 2d 324, 335 (2002); Schrager v.
North Community Bank, 328 Ill. App. 3d 696, 708 (2002). “Although a plaintiff is not
required to prove his [or her] case at the summary judgment stage, in order to survive a
motion for summary judgment, the nonmoving party must present a factual basis that would
arguably entitle the party to a judgment.” Robidoux v. Oliphant, 201 Ill. 2d at 335.
¶ 43 A trial court is permitted to grant summary judgment only “if the pleadings, depositions,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” 735 ILCS 5/2–1005(c) (West 2008). The trial court must consider documents and
exhibits filed in support or opposition to a motion for summary judgment in the light most
favorable to the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill.
2d 307, 315 (2004); see also Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113
(1995) (a court “must construe [documents and exhibits] strictly against the movant and
liberally in favor of the nonmoving party”). Summary judgment is a drastic measure and
should only be granted if the movant’s right to judgment is clear and free from doubt.
Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). We
review a trial court’s decision on a motion for summary judgment de novo. Outboard Marine
Corp., 154 Ill. 2d at 102; Hernandez v. Alexian Brothers Health System, 384 Ill. App. 3d 510,
519 (2008).
¶ 44 C. Conversion
¶ 45 In the case at bar, the trial court granted summary judgment on count IV of Leah’s
complaint, in which she alleges conversion for William’s alleged unauthorized withdrawal
of funds from the Harris accounts held in Leah’s living trust. To state a cause of action for
conversion, a plaintiff must prove that: (1) she has a right to the property at issue; (2) she has
an absolute and unconditional right to the immediate possession of that property; (3) the
defendant wrongfully and without authorization assumed control, dominion, or ownership
over the property; and (4) she made a demand for the return of the property. Cirrincione v.
Johnson, 184 Ill. 2d 109, 114 (1998); Kovitz Shifrin Nesbit, P.C. v. Rossiello, 392 Ill. App.
3d 1059, 1063-64 (2009); Chicago District Council of Carpenters Welfare Fund v. Gleason
& Fritzshall, 295 Ill. App. 3d 719, 722 (1998).2
¶ 46 In his appellate brief, William does not dispute that he withdrew the funds from the
Harris accounts without Leah’s authorization and deposited the funds into a bank account
that he owned jointly with his wife Suzanne. He also does not dispute that Leah demanded
the return of the funds and that he refused to do so. Rather, William argues that Leah failed
to establish that she has: (1) a right to the funds in the Harris accounts; or (2) an absolute and
2
Leah, as sole trustee, may bring suit for the return of the funds on behalf of the trust. See
760 ILCS 5/4.11 (West 2008); see also Pierce v. Chester Johnson Electric Co., 117 Ill. App. 3d 867,
868-69 (1983) (a trustee may sue in her representative capacity on behalf of the trust).
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unconditional right to the immediate possession of those funds. For support, William does
not cite any legal authority. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) (argument in
appellate brief must be supported by citation to legal authority and factual record); Roiser v.
Cascade Mountain, Inc., 367 Ill. App. 3d 559, 568 (2006). William points only to his
discovery deposition testimony, during which he testified:
“[The Harris money market account] use[d] to be an account that I had, okay, before
Leah was married. And I had money in that account. When she got married, I told her
to move another bank with her husband and to open up an account over there. And
the money was left there, which was my account at that time–how do I say it, I left
it there. *** I left the money, that was my money.”
¶ 47 We do not find William’s claim persuasive. Funds deposited into a bank account are
presumed to belong to the person in whose name the account is established. Multi-Clean
Products, Inc. v. Kasper, 3 Ill. App. 3d 12, 15 (1971); see also 9 C.J.S. Banks and Banking
§ 293 (2008) (“[w]here a deposit is made by one person in the name of another, the rights
with respect to such deposit belong to the person in whose name the deposit is made”). A
certificate of deposit is also presumed to belong to the person whose name appears on the
certificate. 10 Am. Jur. 2d Banks and Financial Institutions § 647 (2007); see, e.g., Multi-
Clean Products, 3 Ill. App. 3d at 15 (finding a certificate of deposit issued to wife was
property of wife and not husband and wife, who jointly owned the safe deposit box where
the certificate was stored).
¶ 48 In this case, only Leah executed Leah’s living trust, and the trust was funded from monies
held in William’s money market account at Harris Bank. After the living trust was executed
by Leah, the money market account was established in the name of “Leah Weisberger Living
Trust.” There is no dispute that funds from the Harris money market account were later used
to purchase a Harris certificate of deposit, also established in the name of “Leah Weisberger
Living Trust.” Thus, the rights with respect to the funds held in the Harris accounts are
presumed to belong to Leah’s living trust, with Leah as the sole trustee.
¶ 49 In determining whether Leah had an absolute and unconditional right to the immediate
possession of those funds, we find the Illinois Supreme Court’s decision in Katz v. Belmont
National Bank of Chicago, 112 Ill. 2d 64 (1986), instructive. In Katz, the owners of certain
small businesses sued a bank for conversion to recover funds which the business owners
gave to the bank’s customer and depositor, a payroll service company. Katz, 112 Ill. 2d at 66.
The payroll service company deposited the funds that it received from the business owners
into its bank account, and then drew payroll checks from the bank account to pay the
business owners’ employees. Katz, 112 Ill. 2d at 66. When the employees’ payroll checks
were dishonored by the bank for insufficient funds, the payroll service company filed for
bankruptcy and the business owners brought suit against the bank alleging conversion. Katz,
112 Ill. 2d at 66.
¶ 50 Our supreme court held that the business owners failed to establish that they had a right
to the funds or an absolute and unconditional right to the immediate possession of such funds
to support their conversion claim. Katz, 112 Ill. 2d at 69. The supreme court found that there
was no relationship between the business owners and the bank with respect to the funds in
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the payroll service company’s account, and that “[t]he only possible right to immediate
possession of the [funds in a bank account], absolute and unconditional,” rests with the
entity whose name is on the account, i.e., the payroll service company. (Emphasis in
original.) Katz, 112 Ill. 2d at 69.
¶ 51 Here, Leah executed her living trust, and both of the Harris accounts used to fund the
trust were established in the name of “Leah Weisberger Living Trust.” Thus, similar to the
payroll service company in Katz, the only possible right to immediate possession of the funds
held in the Harris accounts, absolute and unconditional, rests with Leah’s living trust.
¶ 52 In his reply brief, William argues that the evidence showed that: (1) he was listed as a
“co-trustee” on the Harris money market account; (2) the Harris money market account was
a “continuation of [a money market] account that contained [his] personal funds”; (3) Leah’s
living trust funds “thus were commingled with [his] personal funds”; and (4) [he] withdrew
his personal funds from the Harris accounts. Thus, William concludes, a question of fact
exists whether the funds in the Harris accounts were commingled with his personal funds and
that Leah did not have a right to funds in the Harris accounts or an absolute and
unconditional right of immediate possession of those funds. For support, William cites
Sadacca v. Monhart, 128 Ill. App. 3d 250 (1984), which was also cited in Leah’s appellate
brief. In that case, this court found that “where [a] trustee commingles trust funds with his
own and subsequently withdraws sums from the combined fund for his own use, the
conclusive presumption is that the trustee withdrew his own funds first.” Sadacca, 128 Ill.
App. 3d at 258 (citing 4 John Pomeroy, Equity Jurisprudence § 1058d, at 151 (5th ed. 1941);
People v. Barrett, 405 Ill. 188, 196 (1950)).
¶ 53 In Sadacca, the defendant sought to impose a constructive trust on a husband’s personal
checking account. Sadacca, 128 Ill. App. 3d at 254. The husband had obtained funds from
the defendant through a fraudulent sale of a condominium unit. Sadacca, 128 Ill. App. 3d at
254. The husband then deposited the proceeds of the sale into his personal checking account
together with funds he obtained from other sources. Sadacca, 128 Ill. App. 3d at 254. The
husband’s wife received some of the funds from her husband’s personal checking account
as maintenance and, after her husband’s death, as a widow’s award. Sadacca, 128 Ill. App.
3d at 252-53.
¶ 54 We find Sadacca distinguishable from the case at bar. First, the trust agreement here
states that Leah is the sole trustee for her living trust, not Leah and William as “co-trustees”
as William claims. William appears to be only a signator on the Harris money market
account, where he is wrongfully listed as a “trustee.” William is named only as an alternate
successor trustee to Leah’s mother, Suzanne, should Leah, and then Suzanne, cease to act as
trustee.
¶ 55 Second, unlike the husband’s bank account in Sadacca, the bank account at issue in the
case at bar is not William’s personal bank account. While William testified that he originally
opened the Harris money market account and deposited money into that account, William
transferred ownership of that account to Leah’s living trust when Leah executed the trust
agreement and established the name on the Harris money market account as “Leah
Weisberger Living Trust.” See, e.g., In re Marriage of Barnett, 344 Ill. App. 3d 1150, 1153-
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54 (2003) (transferring joint bank account solely to wife, husband made a gift of account to
wife, and therefore, funds in account became wife’s nonmarital property). Thus, the funds
in the Harris money market account became the property of Leah’s living trust and were not
commingled with personal funds of William. Therefore, the only funds that William
withdrew from the Harris accounts were funds belonging to Leah’s living trust.
¶ 56 In sum, we agree with the trial court’s determination that there was no genuine issue of
material fact that precluded summary judgment on Leah’s conversion claim. The right to the
funds, and the absolute and unconditional right to immediate possession of those funds, held
in the Harris accounts, rests with Leah’s living trust, in which Leah is the sole trustee. In
addition, there is no dispute that William withdrew the funds in the Harris accounts without
Leah’s authorization and that Leah demanded the return of the funds, and William refused.
Accordingly, the trial court properly granted partial summary judgment in favor of Leah and
against William on the conversion claim in count IV of Leah’s amended complaint.
¶ 57 CONCLUSION
¶ 58 For the forgoing reasons, we affirm the judgment of the circuit court of Cook County in
granting summary judgment in favor of plaintiff and against defendant for count IV of
plaintiff’s amended complaint.
¶ 59 Affirmed.
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