Moldenhauer v. Dennison
| Decision Date | 06 September 2019 |
| Docket Number | NO. 5-18-0212,5-18-0212 |
| Citation | 2019 IL App (5th) 180212 -U |
| Parties | DENISE MOLDENHAUER, as Administrator of the Estate of Norita Hermeling, Plaintiff-Appellee and Cross-Appellant, v. JAMES DENNISON, Defendant-Appellant and Cross-Appellee. |
| Court | United States Appellate Court of Illinois |
NOTICE
Decision filed 09/06/19. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Marion County.
¶ 1 Held: Where James Dennison had a fiduciary relationship with his mother, Norita Hermeling, undue influence is presumed and the trial court's order quieting title to the real estate Norita Hermeling transferred to him is affirmed. Where Denise Moldenhauer was unable to meet her burden of proof to establish that James Dennison used his fiduciary relationship with Norita Hermeling to knowingly deceive, intimidate, or illegally use her assets, we affirm the trial court's order.
¶ 2 Norita Hermeling suffered from dementia. After she moved in with her son, James Dennison, he took her to a local attorney's office to have two legal documents prepared and signed—a power of attorney for property and a warranty deed. The warranty deed established a joint tenancy between Hermeling and Dennison in her house.
Hermeling filed this action against Dennison arguing that he unduly influenced her to have the legal documents prepared and signed, and that he improperly removed money from her bank account for his personal use. During the pendency of this case, Hermeling passed away, and a daughter, Denise Moldenhauer, was appointed as administrator of her mother's estate and substituted as the plaintiff in this case. Dennison appeals from the trial court's order concluding that he had a fiduciary relationship with his mother, and thus the presumption that he exerted undue influence over her to get her to sign the power of attorney and the warranty deed making him a joint tenant. Moldenhauer cross-appeals from the trial court's order finding that she had not met her burden of proof to establish that Dennison used his fiduciary relationship with their mother to knowingly deceive, intimidate, or illegally use Hermeling's assets. For the reasons that follow in this order, we affirm the trial court's order.
¶ 4 Hermeling lived in Centralia in a modest house that she owned. She was diagnosed with dementia in 2015. In January 2016, Hermeling was reported to be wandering her neighborhood asking for food. Dennison was one of her six living children. Upon hearing that she was wandering the neighborhood, Dennison went to her house and "evicted" his mother's "boyfriend." He then took Hermeling to his house in Iuka that he shared with his significant other, Patricia Harris.
¶ 5 On January 11, 2016, Dennison and Harris took Hermeling to an attorney in Salem, Samuel E. Bauerle. Before that date, Hermeling was not Bauerle's client, but Bauerle knew Dennison, who may have utilized his services in the past. On that samedate, Hermeling signed two legal documents prepared by Bauerle. One of the documents was a power of attorney, whereby Hermeling appointed Dennison as her attorney-in-fact with power to manage her bank accounts and all other property. The other document was a warranty deed whereby Hermeling conveyed her Centralia house to herself and Dennison as joint tenants with right of survivorship for $10 in consideration. At that time, the house had a tax assessed value of $48,968. The deed was recorded on January 26, 2016. Dennison insists that the warranty deed was signed before the power of attorney.
¶ 6 Within a few weeks of moving to Iuka, Hermeling became ill and was hospitalized at St. Mary's Hospital in Centralia. She was discharged after four or five days to a nursing home in Salem on February 2, 2016. Hermeling continued to reside in the nursing home until June 2016 when her daughter, Denise Moldenhauer, moved her to her house in Pekin.
¶ 7 On June 2, 2016, Hermeling revoked her power of attorney that had designated Dennison as her attorney-in-fact and signed a new power of attorney designating Moldenhauer as her attorney-in-fact.
¶ 8 On June 27, 2016, Doctors Nursing and Rehabilitation Center, LLC, the Salem nursing home where Hermeling resided from February 2016 until mid-June 2016, filed suit against Hermeling in Marion County for unpaid bills totaling $8678.95. Attached to its complaint was the contract signed on February 2, 2016, by Dennison. The contract detailed that, at the time of her admission, Hermeling was covered by Medicare and Blue Cross Blue Shield health insurance. The lawsuit culminated in Moldenhauer signing apromissory note in favor of the nursing home in the amount of $8830.45. To resolve the debt, Moldenhauer, as Hermeling's power of attorney, granted a mortgage to the nursing home to secure the promissory note.
¶ 9 Hermeling filed a complaint against Dennison on November 2, 2016, in two counts. Count I asked the court to set aside a warranty deed and quiet title to the real estate (her house in Centralia). She alleges that at the time of the conveyance, Dennison had acquired her trust by undue influence and fraud. Hermeling asked the trial court to quiet title to the house and "[f]or recovery against [Dennison] of any damages done to the property." Count II alleged that Dennison took control of Hermeling's bank account and misappropriated money for his own personal gain. Hermeling also claims that while Dennison had control, he neglected to pay her debts owed to the nursing home. She alleges that Dennison's actions constituted financial exploitation of an elderly person in violation of section 17-56(g) of the Criminal Code of 2012 (720 ILCS 5/17-56(g) (West Supp. 2015) and that he should be held liable for treble damages and attorney fees.
¶ 11 The trial court held a bench trial on June 20, 2017. Hermeling lived four hours from the courthouse, was not well, and did not appear for trial. The parties stipulated that Hermeling was incompetent because she suffered from dementia. Six witnesses testified at trial. Timelines remembered by the witnesses are sometimes inconsistent and will be specified where relevant.
¶ 13 In late December 2015, Dennison received a call from one of his sisters that their mother was walking door to door in her Centralia neighborhood asking for food. Shortly thereafter, his mother was brought to his house in Iuka to live. By early January 2016, Hermeling decided that she wanted to change her power of attorney and deed a one-half interest in her house to Dennison. According to Dennison, Hermeling selected the attorney. Hermeling had the original deed for her house, and she took it to the attorney's office. Within a few days, they returned to the attorney's office, and Hermeling signed the power of attorney and warranty deed documents. Dennison testified that he did not coerce or use undue influence to get his mother to sign these documents, and that she was not cognitively impaired.
¶ 14 Dennison did not like his mother's boyfriend (later referred to by all other witnesses as her "caretaker"). Dennison testified that he "evicted" this man from her house before bringing her to his house in December 2015. Later, he testified that he was finally able to evict this man when he obtained the power of attorney in January 2016. Dennison believed that this man either stole or convinced his mother to give him a lot of her money and that as a result, she was unable to meet her monthly bills.
¶ 15 Dennison testified that his mother was hospitalized at St. Mary's Hospital in Centralia on two occasions in January 2016. She was hospitalized the first time because she had a heart attack. The dates of this hospitalization are not in the record. The second hospitalization was because of "chest pains," but her hospitalization resulted in a diagnosis that she was suffering from a urinary tract infection. At discharge, Dennisontestified that she was "slightly confused." Hermeling's physician recommended that she enter a nursing home in order to have therapy and to get physically stronger before returning to Dennison's house.
¶ 16 Dennison testified that any money he removed or spent out of his mother's checking account went to pay her utility bills on her Centralia house, to pay for repairs on her Centralia house, to pay for her "sitters" during January 2016 when she was not in the hospital, to pay for a new mobile phone for her, to pay for gas to travel to and from Hermeling's house, and to pay for her cigarettes and snacks. In addition, he testified that she did not like the nursing home food, and so they occasionally brought her meals from area restaurants. Dennison was asked about all of the following withdrawals he took from Hermeling's checking account. In February 2016, Dennison withdrew $248 by ATM transactions and $138.29 by debit card transactions. In March 2016, Dennison withdrew $400 by ATM transactions and $962.33 by debit card transactions. In April 2016, Dennison withdrew $389.31 by ATM transactions and $336.11 by debit card transactions. In May 2016, Dennison withdrew $229.25 by ATM transactions and $467.79 by debit card transactions. In addition to the ATM and debit card transactions, Dennison also wrote various checks either to himself or to local stores. Dennison saved no receipts, but on all checks he wrote the reason for the expenditure in the memo section.
¶ 17 Dennison testified that he worked full-time as an over-the-road trucker. He also testified that he was laid off in December, but did not specify the year.
¶ 18 According to...
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