Nemeth v. Banhalmi, 83-1624

• Decision Date: 19 April 1984
• Docket Number: No. 83-1624,83-1624
• Parties: , 81 Ill.Dec. 175 Vera NEMETH, Plaintiff-Appellee, v. Kornelia BANHALMI and George Banhalmi, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 977

466 N.E.2d 977

125 Ill.App.3d 938, 81 Ill.Dec. 175

Vera NEMETH, Plaintiff-Appellee, v. Kornelia BANHALMI and George Banhalmi, Defendants-Appellants.

No. 83-1624.

Appellate Court of Illinois First District, Fifth Division.

April 19, 1984.

Rehearing Denied July 11, 1984.

[81 Ill.Dec. 178] Glen H. Kanwit and Wm. Carlisle Herbert, Hopkins & Sutter, Barry A. Feinberg, P.C., Chuhak, Tecson, Kienlen & Feinberg, Chicago, for defendants-appellants

McDermott, Will & Emery, Chicago, for plaintiff-appellee; Robert T. Palmer, Chicago, of counsel.

SULLIVAN, Justice:

Defendants appeal from a judgment for plaintiff in an action for malicious interference with an expectancy and abuse of a confidential relationship. They contend that (1) plaintiff failed to exhaust her probate remedies; (2) plaintiff did not prove the essential elements of her cause of action; and (3) the trial court's findings with regard to liability and compensatory damages are contrary to the manifest weight of the evidence.

Plaintiff Vera Nemeth (Vera), born in Hungary in 1922, is the sole surviving child from the marriage of Rose Goldner (Rose) and Eugene Jacobovich (Eugene). After Eugene's death, Rose married Paul Sternberg (Paul) in 1929; the sole issue of that marriage was defendant Kornelia Banhalmi (Kornelia), born in 1935. In 1956, the family came to the United States, settling in different parts of the country: Rose and Paul lived in Norfolk, Virginia; Kornelia, by then married to defendant George Banhalmi (George), lived in suburban Cook County, Illinois; and Vera, with her daughter Eva, lived in Los Angeles, California. Rose and Paul opened a gift shop in Norfolk, financed in large part by jewelry and gold coins Rose managed to remove from Hungary concealed in her clothing. Their business prospered, and before their retirement in 1972, they added two parcels of income property to their holdings--an 18-unit apartment building (the Del Argo Apartments), and a smaller parcel containing three rental units (the Granby Street property). Rose and Paul agreed that Vera and Kornelia would be treated equally upon their deaths, and in 1975 they executed identical wills, each leaving the estate to the other, if surviving, and if the other spouse was not alive, leaving the estate equally divided between Vera and Kornelia (the 1975 will).

In the fall of 1975, Vera moved to West Germany to reside near her recently-married daughter, and opened a small business there. Shortly thereafter, Rose suffered a stroke and Kornelia went to Norfolk to assist her parents. Because of her own health problems, she brought Rose and Paul back to the Chicago area where Rose was immediately hospitalized and Paul resided with Kornelia, George, and their daughter Susan. When Rose died in December of 1975, Paul (then 86) decided to remain in the Chicago area and lived with the Banhalmi family until September 1978, when he was placed in a nursing home.

In the summer of 1976, while Vera was visiting from Germany, Paul executed a new will, again providing that Vera and Kornelia would share equally in his estate (the 1976 will). After Paul died in November of 1978, Vera was unable to locate the original of this 1976 will and submitted a copy thereof for probate on the theory that the original was lost. ¹ At that time, she first learned that there was a subsequent Kornelia petitioned the probate court for letters of administration, and Vera filed a complaint against Kornelia and George in that proceeding, alleging malicious interference with her expectancy under the 1976 will. ² The probate court dismissed her complaint without prejudice, ruling that it was improperly brought as a supplemental proceeding. Vera then refiled her complaint in circuit court, seeking damages for malicious interference with her expectancy and abuse of a confidential relationship. The trial court dismissed that complaint for failure to state a cause of action, but we reversed that order and remanded for further proceedings in Nemeth v. Banhalmi (1981), 99 Ill.App.3d 493, 55 Ill.Dec. 14, 425 N.E.2d 1187.

[81 Ill.Dec. 179] will, executed on January 31, 1977 (the 1977 will), which provided that she should receive the Granby Street property and 50% of such corporate stock as remained at the time of Paul's death. The balance of his property, both real and personal, was left to Kornelia. However, it further appeared that Paul destroyed the 1977 will shortly after it was executed. Since he had never adopted Vera, his entire estate passed to Kornelia as the sole heir under the laws of intestacy.

On remand, the action proceeded to trial, and Vera testified that although Paul never adopted her, she was raised in his household from the age of seven and was treated by him as his daughter. She used the name Sternberg socially, and always referred to Paul as her father, just as he referred to her as his daughter, and treated her daughter Eva as his granddaughter. She acknowledged that there was a rift in the relationship with her parents when she married Emery Nemeth and converted from Judaism, but explained that their attitude changed after she and her husband sheltered them and Kornelia during the Nazi occupation of Hungary by creating false papers for them and hiding them in their home. Vera further testified that their close familial relationship continued after immigration to this country, despite the fact that they settled in different areas. They maintained contact through letters, phone calls, and yearly visits. During one such visit, Rose and Paul told her and Kornelia of their intention to divide their estate equally between the two girls. It was further planned that if Paul should die first, Rose would reside with Vera, and if Rose died first, Kornelia would care for Paul.

Vera also stated that she was in West Germany when her mother suffered a stroke and returned home when informed that Rose was near death. At that time, Kornelia told her that their mother had taken several pieces of valuable jewelry with her when first hospitalized in Norfolk, and that it had disappeared; however, no police report was made, and the jewelry was not insured. After she (Vera) returned to Germany, Kornelia informed her that Paul had moved in with her; that they were renting a larger home to accommodate him; and that Paul contributed to the rent, but gave her nothing for his board and care. However, when she visited again in the summer of 1976, she learned for the first time that Kornelia and George had purchased the house in joint tenancy with Paul, and that Paul had provided the entire $15,000 down payment. He explained to her that he agreed to the arrangement because he feared that if he did not, they would put him in a nursing home. He further proposed that they marry and he return to California with her, but she did not take his proposal seriously. When confronted, Kornelia did not explain why she had written that they were renting the home, stating merely that the arrangement was more practical than renting.

Vera further testified that during this visit, Paul executed the 1976 will, gave her $5,000, and promised to send her $10,000 more in monthly payments. He also decided Vera next stated that she returned to West Germany where she remained until the fall of 1977, when she moved back to Los Angeles. She did not see Paul during 1977, but did hear from Kornelia on several occasions. Kornelia frequently wrote that Paul had suffered business losses and was therefore reluctant to comply with his promise to give her $10,000. Kornelia also told her that Paul suffered a mild stroke in May of 1977, and had become confused and had difficulty remembering things. According to Kornelia's letters and telephone calls, Paul became increasingly difficult throughout the fall of 1977, locking other family members out of the house, slamming doors, and acting childishly. However, Kornelia represented him as still sharp in business matters and able to handle his affairs, although he expressed fears that he might have to flee from nonexistent creditors and was afraid that "they" were trying to take his money away from him. She further represented that Paul was refusing to give them money, even though he was dependent on them for his care; she did not tell Vera that Paul had pooled his assets with theirs, or that George was assisting him in handling his business affairs. Throughout this period, she (Vera) received no letters from Paul and was rarely able to speak with him more than briefly during telephone calls; for the most part, when she called, members of the Banhalmi family gave some excuse why he could not come to the phone.

[81 Ill.Dec. 180] to give each of Rose's daughters a portion of her jewelry, which he had inherited on her death. They took the jewelry for appraisal, then Paul gave her a diamond pin valued at $15,000, gave Kornelia a share of equal value, and retained $9,000 worth himself, promising that it would be divided between them on his death. Vera also stated that she knew this did not represent all of the jewelry and gold coins their mother owned, but Kornelia did not [125 Ill.App.3d 944] mention being in possession of other jewelry, or that their mother had given certain items of jewelry to her before her death. After this action was filed, additional jewelry which had belonged to their mother was located in Kornelia and George's safe deposit boxes; however, four pieces that she remembered were still missing--a matching diamond and sapphire pendant and ring, a large diamond solitaire ring, and a watch with a diamond bracelet.

In early 1978, Kornelia told her in a letter that it had been a difficult 2 years, and a doctor had advised her that Paul would become more and more difficult to handle. There were constant arguments about money matters, and she and George had to pay most of Paul's expenses out of their own funds. Later, in April 1978, Kornelia wrote that if Paul's mental or physical...