Barnes v. Michalski

• Decision Date: 23 March 2010
• Docket Number: No. 4-09-0450.,4-09-0450.
• Citation: 925 N.E.2d 323,399 Ill.App.3d 254,338 Ill.Dec. 826
• Parties: Brad BARNES, Plaintiff-Appellant,v.Rose MICHALSKI, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

399 Ill.App.3d 254

925 N.E.2d 323

338 Ill.Dec. 826

Brad BARNES, Plaintiff-Appellant,v.Rose MICHALSKI, Defendant-Appellee.

No. 4-09-0450.

Appellate Court of Illinois Fourth District.

March 23, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Edmond H. Rees and Phillip J. Block, both of Brandenburg-Rees & Rees, of Carlinville, for appellant.

William P. Hardy and Russell L. Reed, both of Hinshaw & Culbertson LLP, of Springfield, for appellee.

Justice APPLETON delivered the opinion of the court:

Plaintiff, John B. Barnes, brought this action against defendant, Rose Michalski, to enforce the repayment of a loan. (The caption identifies plaintiff as “Brad Barnes,” but we will use his full formal name, which we have obtained from the transcript of the trial.) At the close of plaintiff's evidence in the bench trial, the trial court granted defendant's motion for a judgment in her favor. See 735 ILCS 5/2-1110 (West 2008). Plaintiff appeals, and we conclude that the judgment is against the manifest weight of the evidence.

It is undisputed that plaintiff advanced defendant $27,000 and that, when doing so, he did not owe her $27,000. Further, she was neither his spouse nor his relative. Those facts created the presumption of a loan. Defendant had the burden of rebutting that presumption by going forward with clear and convincing evidence that the $27,000 was a gift, as she pleaded in her answer. Instead of requiring defendant to carry that burden of production, the court prematurely ended the trial at the conclusion of plaintiff's case, by granting defendant's motion for a judgment in her favor. Therefore, we reverse the trial court's judgment and remand this case with directions to resume the trial and proceed to its conclusion.

I. BACKGROUND

A. The Complaint and Answer

In his complaint, which he filed on February 15, 2007, plaintiff alleges he has lent defendant a total of $27,000 as evidenced by two cashier's checks, copies of which are attached to his complaint as exhibits A and B, and that she has not repaid him. In her answer, defendant denies that allegation.

The answer admits, however, paragraphs 4 and 5 of the complaint, which read as follows:

“4. On or about November 24, 2003[,] [p]laintiff delivered to [d]efendant * * * a check in the amount of $25,000.00 drawn on the First National Bank, Girard, Illinois. See [e]xhibit ‘A’.

5. On or about December 18, 2003[,] [p]laintiff delivered to [d]efendant * * * a check in the amount of $2,000.00 drawn on the First National Bank, Girard, Illinois. See [e]xhibit ‘B’.”

Although defendant admits receiving these two cashier's checks from plaintiff, she denies they are loans. Rather, she asserts in her answer that they are gifts. In response to the allegation, in paragraph 7 of the complaint, that she “has not repaid said sums to [p]laintiff,” defendant “denies that she has any obligation to repay the gifts provided by the [p]laintiff.”

B. The Bench Trial

1. Admission of the Cashier's Checks

The bench trial commenced on May 22, 2009, and at the beginning of the trial, before calling any witnesses, plaintiff's attorney offered in evidence plaintiff's exhibit Nos. 1 and 2, which were the cashier's checks referenced as exhibits A and B in paragraphs 4 and 5 of the complaint. Defendant's attorney had no objection to plaintiff's exhibit Nos. 1 and 2, and the trial court admitted them in evidence.

These two exhibits are in the common-law record. Plaintiff's exhibit No. 1 is a cashier's check in the amount of $25,000. It is dated November 24, 2003. Plaintiff's name, Brad Barnes, is typed on the line corresponding to the “remitter” and also on the line corresponding to the words “pay to the order of.” He has endorsed the check on its reverse side, and under his signature are the words “Pay to the Order of Rose Michalski.” Below that restrictive endorsement is the signature of “Rose Michalski,” followed by the ink stamps and dot-matrix notations of several financial institutions.

Plaintiff's exhibit No. 2 is a copy of another cashier's check, which, in its endorsements and notations, closely resembles plaintiff's exhibit No. 1 except that this check is dated December 18, 2003, and is in the amount of $2,000. Again, the remitter is plaintiff, and on its front side, the check is payable to his order. He has endorsed the reverse side of the check, above the words “Pay to the Order of Rose Michalski,” and the signature of “Rose Michalski” appears under that restrictive endorsement, followed by the notations of various financial institutions.

2. The Testimony at Trial

Three witnesses testified in plaintiff's case in chief: plaintiff; his wife, Barbara Dell-Barnes; and defendant, whom he called as a hostile witness. Here is the gist of their testimony.

Plaintiff testified that he had been married to Dell-Barnes for 13 years and that they lived in Girard. In the summer of 1999, plaintiff became acquainted with defendant, who at that time was married to George Michalski. The Michalskis also lived in Girard. Plaintiff got to know the Michalskis because both he and George Michalski were volunteer firefighters in the Girard fire department and the families of firefighters often went on outings together to Otter Lake, where they had parties and went boating and canoeing.

Thus, the Barneses had a social relationship with the Michalskis through the fire department, but the Barneses and defendant developed a further bond because of the Barneses' self-described practice of being “swingers.” Plaintiff's attorney asked plaintiff:

“Q. Now, you and your wife practice a certain lifestyle?

A. Yes, we do.

Q. And what do you call that?

A. That is[,] basically[,] we are in a lifestyle[-]we are swingers[,] and we basically go out and meet other couples and-

Q. In other relationships?

A. Yes.

Q. Did Rose ever participate in those activities with you?

A. Yes, she did.

[Q.] And where would those occur at?

A. Happened at different places. Couple of times at her house, couple of times at a hotel in Springfield, couple of times out at the lake a lot.

Q. And was your wife present during any of these?

A. Yes, she was.

Q. And was she aware of those activities?

A. Oh, yes. Yes.”

Sometimes, in these casual gatherings, defendant told plaintiff about her financial troubles. She had maxed out her credit cards and was having difficulty making house payments. She was afraid that she and her husband would lose their home. Several months after she first brought up her money problems, plaintiff sat down with her, and they went through her bills, brainstorming for solutions. George Michalski did not participate in this conversation; defendant was afraid that if he found out how badly off they were financially, he would say he did not want the house anymore because they were living beyond their means. The interest and fees on the credit cards were eating them up. Plaintiff and defendant tried to get the credit-card balances moved to a different credit-card company, one that would charge a lower rate of interest, but they were unsuccessful. Finally, plaintiff and defendant “figured out about what she was in debtwise, that would help her get on top of her bills.” The sum she needed appeared to be $25,000. So in November 2003, plaintiff withdrew $25,000 from his 401K plan and gave defendant a cashier's check in that amount (plaintiff's exhibit No. 1).

Plaintiff testified:

“A. Basically, I told her[,] [‘U]se this money to get on top of your bills. Once you get on top of your bills[,] all the money that you were paying to your credit cards, all the service charges, all that[,] you can start then giving that back to me.[’] I mean[,] she was paying outlandish fees. And I said [,] [‘W]henever you get on top of it[,] pay me back[’]. No, I didn't want anything extra back. I just said[,] [‘P]ay me back.[’]

Q. To your knowledge, did her husband know what was going on?

A. No.

Q. Did your wife know?

A. Yes.”

Thus, according to plaintiff's testimony, his wife knew “what was going on”-meaning, apparently, not only the infusion of $25,000 from plaintiff's retirement account into the Michalskis' bank account but also, more generally, his relationship with defendant-but defendant's husband was in the dark. In his efforts to financially assist the Michalski household, plaintiff dealt exclusively with defendant. A couple of weeks after giving her the cashier's check in the amount of $25,000, he asked her how she was doing. She replied that she had overlooked a couple of bills and that she needed more money. He asked her how much more money, and she answered that she needed a couple thousand dollars more. He told her, “[‘W]ell, okay. * * * I will get another check for you[,] but that's pretty much it. The well is dry. I don't have, you know, any more to give you * * *. [’]” So, in December 2003, he obtained a second cashier's check (plaintiff's exhibit No. 2), this one in the amount of $2,000, and delivered it to her.

About two years after endorsing over to defendant these two cashier's checks, plaintiff began reminding her of his expectation that she pay him back, and he was prompted to do so by a conversation he had one day with her son, at the fire department. Plaintiff testified:

“A. I was at the firehouse[,] and [defendant's] son was there with her car [,] and I made the comment to him[,] * * * [‘Y]ou need to be careful with Mama Rose's car[.] [P]ut a scratch on it[,] [and] she is going to kick your butt. [’] He said, [‘W]ell, this is going to be my car.[’] [‘]Why is that? [’] [‘]Well,[’] he said, [‘M]om is getting ready to buy a new car[,] and I get this one.[’] Well, I thought if she is able to buy another car[,] she should have been trying to pay me something back a little bit at a time.

Q. Do you know how long that was after you had given her the money?

A. Yeah, that was a couple of years later. A year or so later [,] that's when I seen him.”

After this conversation with defendant's son, plaintiff gave defendant a call and told her, “ ‘[H]ear...