Struever v. Yoswig
| Decision Date | 05 December 2019 |
| Docket Number | NO. 4-19-0038,4-19-0038 |
| Citation | 2019 IL App (4th) 190038 -U |
| Parties | HANNA STRUEVER, Individually and as Administrator for the Estate of Nathan C. Struever, Plaintiff-Appellee and Cross-Appellant, v. MARY ANN YOSWIG, a/k/a MARY ANN HERREN, Defendant-Appellant and Cross-Appellee. |
| Court | United States Appellate Court of Illinois |
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 Circuit Court of Calhoun County
Honorable John Frank McCartney, Judge Presiding.
PRESIDING JUSTICE HOLDER WHITE delivered the judgment of the court.
¶ 1 Held: The appellate court affirmed in part and reversed in part, concluding (1) the trial court's finding that defendant failed to overcome plaintiff's established presumption of undue influence surrounding the creation of decedent's 2007 will and trust was not against the manifest weight of the evidence (2) the trial court did not err in declining to award plaintiff additional funds in the amount of $10,079.87, but (3) the trial court did err in awarding attorney fees where it declined to award punitive damages.
¶ 2 Defendant, Mary Ann Yoswig a/k/a Mary Ann Herren, appeals the judgment of the trial court finding for plaintiff, Hannah Struever, individually and as administrator for the estate of Nathan C. Struever, where (1) defendant failed to overcome plaintiff's established presumption of undue influence surrounding the creation of decedent's October 2007 will and trust and (2) the court awarded plaintiff attorney fees to be paid by defendant. On appeal, defendant argues (1) plaintiff failed to prove allegations of undue influence; (2) plaintiff's proof failed to conform to the pleadings; (3) a presumption of undue influence failed to arise at trial; (4) the court erroneously shifted the burden of proof to defendant; (5) the court erred in granting plaintiff attorney fees; (6) the court erred in certain evidentiary rulings; (7) the court erred in creating a new theory after the close of evidence; (8) the court erred in denying defendant's motion for summary judgment, motion for directed verdict, and motion to reconsider; and (9) the court's finding of undue influence was against the manifest weight of the evidence.
¶ 3 Plaintiff agrees with the trial court's finding of undue influence but cross-appeals, arguing the court erred by (1) failing to award plaintiff $10,079.87 misappropriated by defendant and (2) declining to award plaintiff punitive damages. For the following reasons, we affirm in part and reverse in part.
¶ 6 In July 2015, plaintiff filed her third amended complaint alleging, in relevant part, that defendant asserted undue influence over decedent, John O. "Pete" Schumann, at the time of the execution of decedent's 2007 will and trust, where (1) defendant took decedent against his will to defendant's lawyer, (2) decedent signed the 2007 will and trust because defendant led him to believe that the nursing home would take his farm, and (3) defendant "made arrangements with an attorney who already had an existing relationship with her family for the transfer of all [of decedent's] trust assets[, including] the farm, investment accounts, and all other property to either her and/or to a trust making her the owner or residual beneficiary contrary to her fiduciary responsibility to the trust, [decedent, and plaintiff]." In June 2015, defendant filed an answer to plaintiff's third amended complaint.
¶ 7 In June 2017, defendant filed a motion for summary judgment on multiple counts, including plaintiff's claim of undue influence. Regarding plaintiff's claim for undue influence,defendant argued no facts support the proposition that defendant procured the preparation of decedent's 2007 will and trust or transfer of his farm out of his 2002 trust. In October 2017, the trial court denied defendant's motion for summary judgment finding there existed an issue of material fact.
¶ 8 In March 2018, defendant filed a motion in limine to exclude Doctor Ronald Johnson's testimony. Dr. Johnson was a treating provider of the decedent and is an expert in the field of dementia. On March 22, 2018, the trial court held a hearing on defendant's motion in limine. At the hearing, defendant's attorney argued that Dr. Johnson's testimony lacked relevance where Dr. Johnson in his evidence deposition testified, "[I]t's possible [decedent] could have difficulty understanding a trust, but it's also plausible that he could have executed that trust on that day." Dr. Johnson never spoke to decedent about his trust. Plaintiff's attorney argued defense counsel's stipulation to Dr. Johnson's qualifications to give an opinion on decedent made the motion inappropriate. The court denied defendant's motion in limine finding the testimony relevant.
¶ 9 The matter proceeded to a five-day bench trial in April 2018. Below, we summarize the relevant evidence presented at trial.
¶ 11 In 1985, decedent married Alice, who had two children, Nathan Struever and Hanna Struever, from a previous marriage. Decedent had no children of his own. During their marriage, decedent and Alice jointly owned and resided on 120 acres of real property located in Calhoun County, Illinois, more particularly described as the "Home Farm."
¶ 12 On October 21, 2002, decedent and Alice went to their attorney, Steven Dawson, in Godfrey, Illinois, and executed individual reciprocal revocable trusts and wills funded byassets of both decedent and Alice. Alice's trust provided for Alice during her lifetime, and upon her death, for decedent. Upon decedent's death, Alice's trust was to continue for the benefit of her children, and, when they turned 45 years old, they were to receive the remainder. Decedent's trust contained provisions parallel to Alice's trust. Decedent's trust provided for decedent during his lifetime, and, upon his death, to Alice, if she survived him, and then for the benefit of Nathan and Hanna. When the children turned 45 years of age, they were to receive their proportionate share of the principal held by decedent's trust.
¶ 13 Both Alice and decedent's trusts further provided that Alice act as a trustee of her trust, and decedent act as a trustee of his trust until they died, resigned, or became unable to act, at which point the trusts required their spouse to act as a co-trustee with defendant. Neither trust made a bequest or gift to defendant.
¶ 14 At the same time decedent and Alice executed their trusts, they both created reciprocal wills which poured over the assets to their respective trusts. These wills named their spouse as executor, and defendant as the first alternative executor. On October 21, 2002, when they created their trusts and wills, decedent and Alice conveyed their Home Farm to decedent's trust. Additionally, they divided their personal assets and placed such assets and investment accounts in each individual's mutual trust.
¶ 15 On January 2, 2006, Alice passed away at the age of 74 years old. At the time of her death, decedent was 88 years of age. On the evening of Alice's death, decedent called his neighbor and friend Joyce Titus requesting help because he believed that Alice had passed away. Joyce along with several of her adult children—who were also neighbors of decedent—went to his residence to assist. Once they arrived at decedent's home, Chuck Titus and Lance Titus liftedAlice's body and placed her on the bed. Lance Titus testified decedent was very upset by his wife's passing. Joyce testified that decedent instructed her to contact Nathan.
¶ 16 Lance Titus testified that decedent asked the Titus family to contact another neighbor, Patricia "Patsy" Herren. Patsy and defendant both came to decedent's residence that night. Shortly after defendant arrived, she told the Titus family they were no longer needed and should leave. Brianna Sibley, the daughter of Joyce, testified she felt uncomfortable after defendant told her family they were no longer needed.
¶ 17 When Alice died on January 2, 2006, decedent and defendant became co-trustees of Alice's trust. On January 26, 2006, decedent executed a healthcare power of attorney appointing defendant as power of attorney for his healthcare. At this point, defendant became decedent's primary caregiver.
¶ 18 Decedent's health rapidly declined after Alice's death. In May 2006, defendant took decedent to Dr. Johnson, when decedent complained of dizziness. Dr. Johnson noted that decedent showed signs of confusion and hearing loss, and Dr. Johnson had difficulty getting a history. Dr. Johnson characterized decedent as "more or less a deer in the headlights."
¶ 19 Defendant communicated with decedent's doctors regarding his health and in making appointments. Multiple witnesses testified that decedent was hard of hearing. Lance Titus testified that he spoke with defendant after she returned from a doctor's appointment with decedent and defendant discussed the onset of dementia. Lance Titus and defendant discussed taking away decedent's car keys.
¶ 20 In May 2006, investment funds of both Alice's trust and decedent's trust were moved to UBS Financial Services, Inc. (UBS). On June 12, 2006, decedent executed a durable power of attorney which granted defendant authority over decedent's personal and businessaffairs. Shortly thereafter, decedent authorized defendant to control assets of his trust. Defendant also paid bills, withdrew cash, and handled other matters relating to decedent's 2002 trust. Defendant testified she cashed checks for decedent and that half went into decedent's savings and the other half came back in cash. Defendant testified she never compensated herself after she cashed checks for decedent.
¶ 21 Decedent continued to live on the Home Farm after Alice's death. Neighbors of decedent, most notably multiple members of the...
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