Mijatovich v. Columbia Sav. & Loan Ass'n

• Citation: 119 Ill.Dec. 66,168 Ill.App.3d 313,522 N.E.2d 728
• Decision Date: 23 March 1988
• Docket Number: No. 87-2583,87-2583
• Parties: , 119 Ill.Dec. 66 Venise J. MIJATOVICH and Zoran Mijatovich, Plaintiffs-Appellants, v. COLUMBIA SAVINGS & LOAN ASSOCIATION, an Illinois corporation and Land of Lincoln Savings & Loan Association, an Illinois corporation, individually and doing business as the Columbia Savings & Loan Association and the Land of Lincoln Federal Savings & Loan Association, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 728

522 N.E.2d 728

168 Ill.App.3d 313, 119 Ill.Dec. 66

Venise J. MIJATOVICH and Zoran Mijatovich, Plaintiffs-Appellants, v. COLUMBIA SAVINGS & LOAN ASSOCIATION, an Illinois corporation and Land of Lincoln Savings & Loan Association, an Illinois

corporation, individually and doing business as the Columbia

Savings & Loan Association and the Land of Lincoln Federal

Savings & Loan Association, Defendants-Appellees.

No. 87-2583.

Appellate Court of Illinois,

First District, Third Division.

March 23, 1988.

Joseph J. Kozlowski & Assoc., Willow Springs, for plaintiffs-appellants.

Gomberg & Sharfman, Ltd., Chicago, for defendants-appellees.

Justice McNAMARA delivered the opinion of the court:

Plaintiffs Venise and Zoran Mijatovich filed suit against defendant, individually and doing business as, the Columbia Savings and Loan Association and the Lincoln Federal Savings and Loan Association (all one entity), for the allegedly wrongful removal of $500 from plaintiffs' bank account. The trial court struck count II which sought punitive damages, of the third amended complaint pursuant to Ill.Rev.Stat.1985, ch. 110, par. 2-615. Plaintiffs appeal from that order. After a trial without a jury, the trial court entered judgment for plaintiffs on count I, and awarded $500 as compensatory damages, plus $253 interest.

The third amended complaint alleges that on April 15, 1978, plaintiffs opened a savings account with defendant and defendant therefore owed plaintiffs a fiduciary duty. On February 6, 1979, plaintiffs' account contained $1,355.90. On that day, defendants breached its fiduciary duty by "wrongfully taking, converting and disposing of [$500 from plaintiffs' account] to its own use without any justifiable cause * * *." On February 9, 1979, plaintiffs demanded the return of the money, but defendant refused.

Count II alleges that defendant "wantonly, oppressively and with a reckless disregard for the rights of the plaintiffs, wrongfully took monies"; that defendant "maliciously took the money" without any cause "with the willful and wanton" disregard of its fiduciary duty; that defendant "acted with a wanton, willful and reckless disregard of" plaintiffs' rights when it "oppressively and maliciously took the money" and refused to return it; that defendant "acted oppressively, maliciously, willfully and wantonly with a reckless disregard for the rights" of plaintiffs; and that defendant was conscious of its "wrongdoing * * * [and] maliciously took the money belonging to plaintiffs." Count II alleges further that as a matter of public policy defendant "should be punished for such wrongful act and breach of its fiduciary duties in that such action of defendant is contrary to the public policy of the State of Illinois and such punishment will act as a deterrent in the future." Plaintiffs sought $500 as compensatory damages, and $200,500 as exemplary damages.

At trial on count I, the only witness was plaintiff Venise Mijatovich. According to a bystander's report, Venise testified that on December 2, 1978, she and her husband cashed his $350.85 paycheck in defendant's drive-through facility. On February 9, 1979, plaintiffs received a "temporary receipt" form from defendant, indicating that $500 was being taken from their account. "On temporary receipt your account has been charged the above amount for returned check. The reason is the check amount is $350.85 and you were given $850.85." Later that day plaintiffs met with defendant's representatives, who told plaintiffs that they had been given an extra $500 when they cashed the paycheck. Defendant offered no evidence.

On May 27, 1987, the trial court entered judgment in favor of plaintiffs on count I, for $500 plus $253 in past due interest.

On June 25, 1987, plaintiffs filed a post-trial motion to modify the May 27, 1987 order by increasing the judgment with $200,000 in punitive damages on count I. Plaintiffs asserted that the dismissal of count II did not preclude an award of punitive damages on count I.

On July 17, 1987, the post-trial motion was "denied, a punitive damages count not being before this court." Plaintiffs appeal from the trial court order dated March 27, 1987 striking and dismissing count II, and the order denying a motion to reconsider that order; and the July 17, 1987 order denying the post-trial motion to modify count I to add punitive damages.

Plaintiffs contend that as a matter of law the allegations in count II justify the imposition of punitive damages. Punitive damages are generally not recoverable for breach of contract except when the conduct causing the breach is also a tort for which punitive damages are recoverable and there are proper allegations of malice, wantonness or oppression. (Morrow v. L.A. Goldschmidt Assoc., Inc. (1986), 112 Ill.2d 87, 96 Ill.Dec. 939, 492 N.E.2d 181.) A mere characterization of a breach of contract as "willful and wanton" cannot change a suit for recovery for harm to a contract-like interest into a tort action. A breach of contract does not become a...