Rynn v. Owens

• Decision Date: 27 March 1989
• Docket Number: No. 88-0486,88-0486
• Citation: 181 Ill.App.3d 232,129 Ill.Dec. 909,536 N.E.2d 959
• Parties: , 129 Ill.Dec. 909 Florence RYNN, Plaintiff-Appellant, v. William OWENS, Anrita Owens, Colonial Bank & Trust Co., and Midwest Bank & Trust Co., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 959

536 N.E.2d 959

181 Ill.App.3d 232, 129 Ill.Dec. 909

Florence RYNN, Plaintiff-Appellant, v. William OWENS, Anrita Owens, Colonial Bank & Trust Co., and Midwest Bank & Trust Co., Defendants-Appellees.

No. 88-0486.

Appellate Court of Illinois First District, First Division.

March 27, 1989.

Rehearing Denied May 1, 1989.

James R. Platt, Robert D. Shearer, of counsel, Chicago, for plaintiff-appellant Florence Rynn.

Flynn, Murphy & Ryan, Chicago (Richard T. Ryan, Emmett J. Galvin, Mark F. Smolens, of counsel), for defendants-appellees.

Justice O'CONNOR delivered the opinion of the court:

Plaintiff Florence Rynn sued her nephew, defendant William Owens, for conversion of funds held in four bank accounts established by Mary Tamborine, now deceased. Rynn appeals a summary judgment order that the funds from two of four accounts be divided equally between Rynn and Owens. For the reasons below, we affirm.

In 1986, Mrs. Mary Tamborine, Rynn's sister and Owens' aunt, used money she inherited from her husband to open four bank accounts. On March 10th, Mrs. Tamborine opened two accounts at the Colonial Bank & Trust Company in Chicago ("CB & T"), savings account # 87496-6 and savings account # 87497-4. On March 17, Mrs. Tamborine opened checking account # 63-112-4 at CB & T (the "checking account"). On June 12, Mrs. Tamborine opened savings account # 757208-80 at the Midwest Bank & Trust Company in Chicago (the "MB & T account").

Title to all four accounts was held by "Mary Tamborine or William Owens or Florence Rynn." Tamborine and Owens had signed the bank signature cards for all four accounts, but Rynn had signed only for CB & T account # 87497-4 and the MB & T account. Although Rynn had not signed the signature card for the checking account, CB & T paid checks that she drew on the account. The signature cards contained a survivorship agreement that bound the signing parties.

On February 21, 1987, Mrs. Tamborine suffered a stroke and was hospitalized until her death on March 15, 1987. On March 2, 1987, Owens withdrew the funds from the CB & T savings accounts and the MB & T account, a total of $296,627.30, and redeposited the money in two savings accounts at CB & T, held in his and his wife's name. On March 6, 1987, Rynn withdrew the funds from the checking account, approximately $11,300, by writing a check to herself.

On May 11, 1987, Rynn filed a verified complaint against Owens, alleging that Rynn and Owens were joint tenants in the accounts and that Owens had converted the funds. Rynn demanded half the funds from the three savings accounts. On June 24, 1987, Owens filed an answer, denying that Rynn had any interest in account # 87496-6. Owens also filed a counterclaim, alleging that Rynn had improperly withdrawn funds from the checking account and demanding the return of the $11,300.

On August 6, 1987, Rynn moved for summary judgment, arguing that she and Owens were in "equal status" as to the funds in the four accounts, and asking the court to award her half the money from all four accounts. On September 11, 1987, Owens moved for summary judgment on the counterclaim, asking return of the money taken from the checking account. Owens also moved for partial summary judgment, arguing that Rynn was entitled to no money from savings account # 87496-6, and demanding return of the $11,300 that Rynn had withdrawn from the checking account.

On November 9, 1987, Rynn answered Owens' counterclaim, and filed a verifed amended complaint. The amended complaint was filed without leave of the court. Leave was later granted as part of the summary judgment order of December 17, 1987. The amended complaint alleged that Owens was only a joint custodian of the accounts and therefore had no interest in the funds in any of the accounts, and that Owens had breached a fiduciary duty. Rynn asked for all of the money from all four accounts.

On November 10, 1987, Rynn took the evidentiary deposition of Father Joseph Christ. Father Christ stated that for many years he had been a friend and confidant of Mrs. Rynn and Mrs. Tamborine, that Mrs. Tamborine had told him that she wanted Mrs. Rynn to have all of her money, and that she had put the money in the accounts to prevent Mrs. Rynn's estranged husband from getting at the money. Father Christ further stated that Mrs. Tamborine had told him that Mr. Owens, who was executor of Mrs. Tamborine's will, was named on the accounts only as a trustee or guarantor, and that Mrs. Tamborine did not intend for Mr. Owens to receive any of the money from the accounts. Father Christ's deposition formed the basis for the allegations of the amended complaint. Owens' attorneys received the amended complaint on November 12, 1987 and moved to strike it on December 4, 1987.

On December 14, 1987, a hearing was held on Rynn's motion for summary judgment. The trial court ruled that, based on the signature cards of the four accounts, Rynn and Owens were each entitled to half the funds from CB & T account # 87497-4 and the MB & T account. Rynn's share was reduced by the amount taken from the checking account, $11,300. The outstanding $11,300, as well as the money from the remaining two accounts, was to be held in trust pending further order of the court. Rynn was granted leave to file the amended complaint instanter. These rulings were stated in an order dated December 17, 1987.

On December 22, Rynn filed an emergency motion to vacate the summary judgment order. Rynn's attorney, Mr. Platt, also requested that the court enter a disbursement order before the summary judgment order became final on January 17, 1988. Both the motion and Mr. Platt's request were denied.

On January 28, 1988, after expiration of the 30 days for notice of appeal, an agreed order for release of the funds, signed by attorneys for both parties, was given to the trial court. Mr. Platt indicated to the court that no appeal had been filed, and accordingly the trial court ordered disbursement of the funds. On February 19, 1988, Rynn filed a motion for a late Notice of Appeal with this court, pursuant to Supreme Court Rule 303(e) (87 Ill.2d R. 303(e).). The motion was granted, and late notice of appeal was filed on February 26th.

At a hearing on March 3, 1988, the trial judge barred Mr. Platt from practicing in his courtroom because the judge felt that on January 28, Mr. Platt had induced disbursement of the funds by misrepresenting to the court his intention not to file an appeal.

Rynn argues that the summary judgment order was improper because no motion was before the court to award any of the money to Owens, and because Father Christ's evidentiary deposition raised material issues of fact concerning the donative intent of Mary Tamborine. Rynn further argues that the trial judge was improperly prejudiced against Mr. Platt, and in a separate motion asks for substitution of judges on remand. Both contentions are without merit. The trial court correctly ruled based on the motion and pleadings before it, and the record shows no evidence of prejudice towards Mr. Platt.

The motion for...