In re Estate of Pawlinski

SIXTH DIVISION
January 21, 2011

No. 1-09-2785

In re ESTATE OF ) Appeal from the
) Circuit Court of
VICTORIA M. PAWLINSKI, ) Cook County,
)
Deceased )
)
(Margaret T. Calvert, and )
Edward J. Pawlinski, )
)
Plaintiffs-Appellees, )
)
v. ) No. 04 P 008095
)
Sidmund J. Pawlinski ) The Honorable
) Jeffrey A. Malak,
Defendant-Appellant). ) Judge Presiding.

PRESIDING JUSTICE GARCIA delivered the judgment of the

court, with opinion.

Justices Cahill and McBride concurred in the judgment and

opinion.

OPINION

The decedent, Victoria M. Pawlinski, is survived by three

children, appellant Sidmund J. Pawlinski (Sid) and appellees

Edward Pawlinski (Ed) and Margaret Pawlinski Calvert. Sid, as

executor of Victoria's will, filed a final account of the

estate's assets for distribution amongst the three heirs. The

final account did not include a number of bank certificates of

deposit (CDs), worth over $500,000 combined and each titled

jointly to Sid and Victoria. Ed and Margaret challenged the
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omissions in a citation to recover the CDs. Following an

evidentiary hearing, Judge Jeffery A. Malak ordered the CDs be

included in the assets of the estate. The CDs were retitled to

Sid and Victoria as joint tenants after a grant of power of

attorney by Victoria to Sid. Judge Malak found Sid failed to

overcome the presumption of undue influence by clear and

convincing evidence. Sid contends Judge Malak erred in his

application of the presumption of undue influence in light of the

evidence presented, in his failure to find that Ed and Margaret

"conceded" that Sid met his burden of overcoming the presumption

of undue influence when Ed and Margaret introduced rebuttal

evidence, and in his rejection of Sid's motion to reopen the

proofs. We find Judge Malak properly applied the strong

presumption of undue influence, favored by Illinois courts,

against a fiduciary and his ruling at the conclusion of the

evidentiary hearing is not against the manifest weight of the

evidence. Because Sid's motion to reopen the proofs was filed on

the same day as the notice of appeal and was not ruled upon until

several months thereafter, the propriety of that ruling is not

properly before us. We affirm in part and dismiss in part.

BACKGROUND

Victoria Pawlinski died on August 24, 2004, survived by her

three children, Sid, Ed, and Margaret. Victoria moved to Sid's

home in early February 2002 following the death of her husband,

Sidmund Pawlinski, Sr. (Sid Sr.), on January 31, 2002. At the

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time of Sid Sr.'s death, both he and Victoria were residing in a

nursing home. While a resident of the nursing home, Victoria

granted Sid power of attorney on February 1, 2002. Victoria

resided with Sid until her death on August 24, 2004.

Victoria's will was admitted to probate on December 3, 2004,

and, in accordance with its terms, Sid was appointed executor of

her estate. The will stated Vitoria's intention "to provide for

all [her] children." The will provided that the tangible

personal property and all remaining property Victoria owned at

the time of her death pass to the trustee of the "Victoria M.

Pawlinski Trust [Pawlinski Trust] dated May 31, 2002." However,

the parties were unable to locate the Pawlinski Trust document by

the time of the hearing. Following the entry of the order

declaring the three children sole heirs of Victoria, Sid filed a

first and final account of the assets of the estate for equal

distribution amongst Sid, Ed, and Margaret.

On July 7, 2006, Ed and Margaret filed a citation to

discover assets of the estate alleging Sid possessed and withheld

from the estate CDs with multiple banks worth over $500,000.

Upon review of the citation, Judge Malak converted it to a

citation to recover assets, which he issued on October 18, 2006.

Judge Malak also granted Ed and Margaret's motion for partial

summary judgment, finding that a fiduciary relationship existed

between Sid and Victoria from February 1, 2002, when she

appointed Sid as her attorney-in-fact, until her death. The

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existence of a fiduciary relationship gave rise to a presumption

that any transaction executed by Victoria for Sid's benefit

during that period was fraudulent as a product of undue

influence. Judge Malak noted that the presumption could only be

overcome by clear and convincing evidence. Beginning in April

and concluding in June 2009, Judge Malak conducted an evidentiary

hearing on the citation to recover assets to determine whether

the CDs should be included as assets of the estate. We set out

the testimony of only those witnesses that impact the issue on

appeal.

Attorney Arthur Douglas Wellman testified he had represented

Sid in various matters for the previous 15 years. In January

2002, Sid contacted him regarding his parents, both of whom were

ill and living in a nursing home. Attorney Wellman met with Sid

Sr., who stated his wish to grant Sid power of attorney over the

assets he held jointly with Victoria. Before a power of attorney

could be executed, Sid Sr. passed away on January 31, 2002.

Attorney Wellman then met with Victoria in the nursing home on

February 1, 2002. She granted power of attorney to Sid that same

day and indicated to attorney Wellman that she "entrusted [Sid]

implicitly." Sid was present when Victoria signed the power of

attorney, accepted the appointment as Victoria's attorney-in-fact

and agreed to "perform in said fiduciary capacity consistent with

[Victoria's] best interests."

Attorney Wellman met with Victoria again later in February

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2002 at Sid's home. According to attorney Wellman, the two met

alone in a bedroom. Victoria revealed that her estate was worth

over $1 million. Attorney Wellman encouraged Victoria to have

financial representatives meet with her in the home to discuss

how she could get the highest rate of return on her money.

Victoria informed attorney Wellman that both she and her husband

wanted Sid to help them with their financial affairs and that the

bulk of her bank accounts and CDs should go to him upon her

death. They discussed retitling some of her accounts jointly

with Sid.

Attorney Wellman testified he prepared a will for Victoria,

which was designed to pour the majority of her assets into an

irrevocable trust he also prepared. The assets placed into the

trust would go to Sid, Sid's wife, and Sid's son; any assets not

placed in the trust would be distributed equally amongst Sid, Ed,

and Margaret. To challenge the existence of a pourover trust, Ed

and Margaret's attorney introduced into evidence a letter from

attorney Wellman dated April 5, 2005, which stated, "There was no

living trust or trust of any kind executed or in existence at the

time of [Victoria's] death to [my] knowledge or in my

possession." No pourover trust was ever introduced at the

citation hearing.

Sid testified that he never discussed the power of attorney

with attorney Wellman and that it was his parents' wish that he

hold power of attorney over their assets. Under the power of

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attorney, Sid paid bills for his mother through a checking

account his mother opened listing Sid as a joint tenant. He also

added his name as joint tenant with Victoria to CDs at three

different banks that had been previously titled to Victoria and

Sid Sr. Sid denied participating in any of the meetings between

attorney Wellman and Victoria, although he was aware attorney

Wellman was preparing her will.

Sid testified that sometime in early March 2002, at

Victoria's request, he arranged for representatives from LaSalle

Bank to come to his house to speak with Victoria. According to

Sid, he remained in the kitchen having coffee while the two

LaSalle Bank representatives met with Victoria in the dining

room. Shortly after this meeting, Sid went to LaSalle Bank by

himself to conduct business on his mother's behalf concerning

three CDs, which, at the time, were titled jointly to Victoria

and Sid Sr. Sid testified that "whatever my mother had told them

to do at the house, that's what was done with the CDs." While

Sid was at the bank, the three CD accounts were consolidated into

a single $88,000 CD titled to Victoria and Sid as joint tenants,

with a right of survivorship, on the authority granted by the

power of attorney.

Sid also visited TCF Bank in late March 2002 where Victoria

and Sid Sr., as joint tenants, held a CD worth $100,000. Sid

arranged for a TCF representative to meet with Victoria at his

house. Sid testified that when the TCF representative arrived,

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Sid introduced his mother and left the room. He "went about

[his] business" while the TCF representative and Victoria talked

alone. Sid denied discussing any changes to the TCF CD with

Victoria. A TCF CD with the same account number and balance as

the CD titled jointly to Victoria and Sid Sr. was introduced into

evidence. This TCF CD listed Victoria and Sid as joint tenants.

Sid explained the TCF CD was merely a renewal of the CD he

secured from a TCF banker on August 6, 2004, under the authority

of the power of attorney given by Victoria.

Additionally, Sid testified that in March 2002 he contacted

Lawrence Knight, a manager of MB Financial Bank, to arrange a

home visit with Victoria regarding some accounts she had at MB.

At the time, Victoria had three CDs at MB: two with a combined

worth of $85,000 and one worth $94,000, all of which were jointly

titled to Victoria and Sid Sr. According to Sid's testimony,

when Knight arrived at Sid's home, Sid introduced Knight to his

mother and left the room while the two discussed her MB accounts.

The MB CDs were later retitled jointly to Victoria and Sid. Sid

testified that the changes occurred after Victoria met with

Knight at the house, but he could not recall whether he appeared

personally at MB Financial Bank to complete the retitling of the

CDs.

The parties stipulated to the introduction of the evidence

deposition, conducted by telephone, of Knight, who at the time of

the hearing resided in Colorado and was no longer employed at MB

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Financial Bank. In his deposition, Knight confirmed that Sid

came to the branch office to arrange a meeting with Victoria at

Sid's home concerning the MB CDs. Knight traveled to the home

alone, where he met with Victoria, Sid, and Sid's wife. Knight

testified that Sid and his wife were present throughout the

meeting with Victoria, but could not recall whether anyone other

than he and Victoria sat at the table during their meeting. When

asked whether Sid and his wife spoke up during the meeting,

Knight testified he was "sure they did" because Sid "was in the

room, so I'm sure that he *** joined in the conversation."

Knight testified that he believed Victoria was capable of making

decisions about the account and that it was her desire to change

the CDs to allow Sid to receive the money upon her death. Knight

testified that he arrived at Sid's home with the forms necessary

to retitle the MB CDs in Victoria and Sid's names, which he

prepared in advance of the meeting. The only person with whom

Knight discussed the CDs before meeting with Victoria was Sid.

He could not recall, however, the specific conversations he must

have had with Sid about the changes to the MB CDs reflected in

the forms he brought to the home.

Near the close of the hearing, the parties discussed

stipulating to Ed and Margaret's rebuttal evidence, which

consisted of signature cards and other documents subpoenaed from

the banks holding the CDs. Sid's counsel argued that while he

had the initial burden to overcome any presumption of undue

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influence, if Ed and Margaret introduced rebuttal evidence "they

may be conceding that [Sid had] overcome [that] burden." Judge

Malak acknowledged the "possibility" that the introduction of

rebuttal evidence might constitute such a concession. Ed and

Margaret introduced the rebuttal evidence, recalling Sid to

provide the foundation to introduce the rebuttal documents into

evidence. Following the close of evidence, Sid's counsel argued

that "at the point [Ed and Margaret] put rebuttal evidence on, I

think they acknowledged by those actions that we had satisfied

our burden."

On July 14, 2009, Judge Malak entered an order finding the

contested CDs to be assets of the estate. In his decision, Judge

Malak noted that Knight's testimony was the only evidence

presented by a noninterested party. Relying primarily on the

substance of Knight's testimony, Judge Malak concluded that "the

presumption of undue influence has [not] been overcome by clear

and convincing evidence." Judge Malak's order made no mention of

Sid's contention that the introduction of rebuttal evidence by Ed

and Margaret was a concession that Sid had overcome the

presumption of undue influence. Sid's motion for reconsideration

filed on August 13, 2009, was denied by Judge Malak on September

15, 2009. On October 15, 2009, Sid filed the notice of appeal,

triggering this court's jurisdiction. On the same day, Sid filed

in the circuit court a motion to reopen the proofs to admit a

copy of the purported trust agreement referenced in Victoria's

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will, which the motion alleged was discovered on October 3, 2009.

The record before us includes Judge Malak's order of February 10,

2010, denying the motion.

ANALYSIS

Before addressing the merits of this appeal, we consider the

threshold issue of jurisdiction. See Mund v. Brown, 393 Ill.

App. 3d 994, 996, 913 N.E.2d 1225 (2009), (" '[T]he appellate

court has *** [a] duty to consider its jurisdiction before

proceeding to the merits of the case.' ") (quoting Almgren v.

Rush-Presbyterian-St. Lukes Medical Center, 162 Ill.2d 205, 210,

642 N.E.2d 1225 (1994)). In their responsive brief, Ed and

Margaret contend that the orders from which this appeal is taken

are not final and appealable, noting that the estate remains open

in probate court. In his reply brief, Sid responds that the

orders resolved the parties' property rights regarding the CDs,

making the orders final and appealable.

Jurisdiction

"A final order is one that 'disposes of the rights of the

parties either with respect to the entire controversy or some

definite and separate portion thereof.' " In re Estate of Yucis,

382 Ill. App. 3d 1062, 1069, 890 N.E.2d 964 (2008) (quoting

Arachnid, Inc. v. Beall, 210 Ill. App. 3d 1096, 1103, 569 N.E.2d

1273 (1991)). While generally an appeal can only be taken from a

judgment as to fewer than all claims "if the trial court has made

an express written finding that there is no just reason for

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delaying either enforcement or appeal or both" (Ill. S. Ct. R.

304(a) (eff. Jan 1, 2006)), no such finding is required to appeal

from an order "entered in the administration of an estate,

guardianship, or similar proceeding which finally determines a

right or status of a party" (Ill. S. Ct. R. 304(b)(1) (eff. Jan

1, 2006)). This court has noted in the past that "[o]rders

within the scope of Rule 304(b)(1), even though entered before

the final settlement of estate proceedings, must be appealed

within 30 days of entry or be barred." Stephen v. Huckaba, 361

Ill. App. 3d 1047, 1051, 838 N.E.2d 347 (2005).

Guided by the principles of finality set out above, we find

Ed and Margaret's lack-of-jurisdiction claim unavailing. The

order of July 14, 2009, settled the parties' rights to the CDs at

issue. Whether the CDs were assets of the estate constituted a

" 'definite and separate portion' " of the controversy between

the parties. Estate of Yucis, 382 Ill. App. 3d at 1069 (quoting

Arachnid, Inc., 210 Ill. App. 3d at 1103). The estate was opened

in 2004; the converted petition to recover assets was filed in

2006; the hearing was held in 2009. " 'A central reason behind

making the time for appeal of such orders mandatory, and not

optional, is that certainty as to some issues is a necessity

during the lengthy procedure of estate administration.' "

Stephen, 361 Ill. App. 3d at 1051 (quoting In re Estate of Kime,

95 Ill. App. 3d 262, 268, 419 N.E.2d 1246 (1981)). Rather than

call into question the finality of the order of July 14, 2009,

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the rule regarding appeals in the administration of estates made

the appeal of the order within 30 days of its entry mandatory.

"Orders within the scope of Rule 304(b)(1), even though entered

before the final settlement of estate proceedings, must be

appealed within 30 days of entry or be barred." Stephen, 361

Ill. App. 3d at 1051. We have jurisdiction to decide this

appeal.

Presumption of Undue Influence
We turn to the first substantive issue Sid raises in this

appeal. He contends the circuit court erred in its application

of the presumption of undue influence, which each side agrees

applies to the retitling of the CDs to Victoria and Sid as joint

tenants. Sid argues the circuit court, in actuality, imposed

upon him the burden of persuasion that no undue influence

occurred, a burden that legally rested with Ed and Margaret.

Ed and Margaret argue the circuit court properly applied

Illinois law regarding the presumption of undue influence raised

by a fiduciary relationship. Namely, the burden fell on Sid in

his fiduciary capacity to rebut by clear and convincing evidence

that the retitling of the CDs to Victoria and Sid was not the

product of undue influence and that he failed to meet this

burden.

Standard of Review

Sid acknowledges in his main brief that "Generally speaking,

a trial court's ruling on a Citation in a probate matter would be

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subject to review pursuant to the manifest weight of the evidence

standard." He contends, however, premised on his contention that

the burden of persuasion was shifted from Ed and Margaret, that

the trial court committed an error of law, which we review de

novo. He contends this error of law extended to the trial

court's ruling "when it concluded, based upon purportedly

contradictory testimony, that the presumption of undue influence

had not been overcome by Sid."
Ed and Margaret agree that if the only issue presented was

whether the burden of persuasion had been shifted, that question

is one of law. They contend, however, the real question before

us concerns an evidentiary finding the circuit court made after

it "properly considered and weighed the evidence produced by the

parties." Such a ruling is subject to the manifest weight of the

evidence standard.

We agree with Sid that whether the burden of persuasion was

shifted raises a question of law. We do not agree, however, that

the record provides any support that the burden of persuasion was

shifted to Sid. Nor does Sid attempt to persuade us that this is

so. Rather, Sid asserts this claim as a basis to explain the

trial judge's ruling. However, the ruling was very clear: "the

Court may not say that the presumption of undue influence has

been overcome by clear and convincing evidence."

We agree with Ed and Margaret that the trial judge, as trier

of fact, "considered and weighed the evidence produced by the

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parties" to decide questions of fact. As our supreme court has

held, such factual findings are reviewed against the manifest

weight of the evidence. "The only issue raised in this appeal is

whether the trial court's finding [that the evidence was not

sufficient to overcome the strong presumption of undue influence]

was contrary to the manifest weight of the evidence." Klaskin v.

Klepak, 126 Ill. 2d 376, 389, 534 N.E.2d 971 (1989); In re Estate

of Miller, 334 Ill. App. 3d 692, 699, 778 N.E.2d 262 (2002)
(trial court found the evidence insufficient to overcome the

strong presumption of undue influence, a finding an appellate

court will reverse only if it is against the manifest weight of

the evidence (citing Klaskin, 126 Ill. 2d at 389)).

Clear and Convincing Evidence

Sid acknowledges that this case turns on whether he met his

burden "to rebut the presumption by clear and convincing proof

that the [contested] transaction[s] [were] fair and equitable and

did not result from undue influence." While repeating the

correct standard, Sid appears to lessen his burden.

"Thus, to the extent that the Circuit

Court's conclusion that the presumption of

undue influence was not overcome by clear and

convincing evidence amounts to a statement by

the Circuit Court that it was not persuaded

by SID's evidence, then the Circuit Court

erred as a matter of law. By producing

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evidence which could disprove that there was

undue influence, SID rebutted the presumption

of fraud such that the Circuit Court should

have weighed the evidence to determine

whether EDWARD and MARGARET satisfied their

burden of proving undue influence."

(Emphasis added.)

As we set out above, the case law is to the contrary. The trial
judge's decision on whether the legal presumption has been met is

entitled to deference as reflected by the manifest weight of the

evidence standard. Klaskin, 126 Ill. 2d at 389; Estate of

Miller, 334 Ill. App. 3d at 699.

Sid's reliance on Franciscan Sisters that his "producing

[some] evidence which could disprove that there was undue

influence" burst the presumption bubble is misplaced. Franciscan

Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 448 N.E.2d 872

(1983). In Franciscan Sisters, the defendant lawyer both drafted

the will and was to benefit under the will, which gave rise to a

legal presumption of undue influence. Before the appellate

court, the defendant lawyer claimed "that the trial court had

misunderstood the effect of the presumption." Franciscan

Sisters, 95 Ill. 2d at 456. The appellate court set out the

misunderstanding in the trial court's own words: " 'In making

this finding, the Court, as fact finder, realizes the evidence

would not have been sufficient to upset the will if the

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presumption was not in existence.' " Franciscan Sisters Health

Care Corp. v. Dean, 102 Ill. App. 3d 61, 67, 429 N.E.2d 914

(1981).

Whether the legacy was the product of undue influence turned

on the testator's "state of mind on *** the day that she signed

the will." Franciscan Sisters, 95 Ill. 2d at 465. The only

direct evidence offered as to the testator's state of mind on the

day she signed the will was by witnesses on behalf of the
defendant lawyer. The appellate court majority found the

granting of the legacy was an independent act on the part of the

testator, as the witnesses to the signing of the will testified,

which satisfied the clear and convincing standard so as to burst

the legal presumption bubble. Thus, the circuit court was

mistaken in its belief that the presumption remained after

sufficient evidence was presented that no undue influence was at

work in the drafting of the will. The supreme court agreed.

"Our decision here affirms the appellate court, which held that

after the presumption is rebutted as a matter of law 'what

remains is a factual question, and we remand the cause to the

trial judge as trier of fact to assess the strength of the

evidence.' (102 Ill. App. 3d 61, 70)" Franciscan Sisters, 95

Ill. 2d at 466. The presumption, having burst by a showing of

clear and convincing evidence, could no longer be relied upon in

assessing the evidence. Franciscan Sisters, 95 Ill. 2d at 466.

Here, the trial judge made no statement similar to that of

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the trial judge in Franciscan Sisters. Rather, the trial judge

here understood that the amount of evidence Sid was required to

present to meet the presumption varied with the strength of the

facts supporting the presumption, as the supreme court made clear

in Franciscan Sisters. "If a strong presumption arises, the

weight of the evidence brought in to rebut it must be great."

Franciscan Sisters, 95 Ill. 2d at 463. The term "clear and

convincing" is a relative term. "The amount of evidence that is
required from an adversary to meet the presumption is not

determined by any fixed rule. A party may simply have to respond

with some evidence or may have to respond with substantial

evidence. If a strong presumption arises, the weight of the

evidence brought in to rebut must be great." (Emphasis added.)

Franciscan Sisters, 95 Ill. 2d at 463.

While "some evidence" may theoretically be sufficient to

rebut the legal presumption of undue influence, we see no benefit

to the use of the term "some evidence" or "producing evidence" as

Sid asserts. The "clear and convincing" quantum of evidence

needed to overcome the presumption of undue influence has been

adopted as the standard generally applicable to fiduciary

relationships, not confined to the context of an attorney-client

relationship. See In re Estate of Wessels, 203 Ill. App. 3d

1080, 1087, 561 N.E.2d 1212 (1990) ("clear and convincing

evidence is required to rebut the presumption of fraud or undue

influence arising from transactions within any fiduciary

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relationship, not just those involving attorneys and their

clients") (citing Lamb v. Lamb, 124 Ill. App. 3d 687, 464 N.E.2d

873 (1984)).

It is the strength of the presumption that arose in this

case that distinguishes it from Franciscan Sisters. Here, the

evidence went far beyond the mere signing of the power of

attorney by Victoria to Sid. The circuit court set forth the

critical circumstances regarding the signing of the power of
attorney by Victoria and the retitling of the CDs held at three

different banks with Victoria and Sid as joint tenants, which

demonstrated the strength of the showing supporting the

presumption.

The circuit court characterized the signing of the power of

attorney as "somewhat unusual." Victoria signed the power of

attorney the day after Sid Sr. died, which suggests attorney

Wellman and Sid met with Victoria at the nursing home with the

power of attorney in hand. "The Power of Attorney form is

clearly designated for Mrs. Victoria Pawlinski, but there is no

indication that she requested it." The circuit court noted that

at times Sid claimed "he did not use the Power of Attorney to

make any change[s] [to the CDs.]" At other times, Sid "testified

that he 'may have' used the Power of Attorney to change a

certificate and that he 'might have' become a joint tenant

thereof."

Because much of the evidence presented by the parties came

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from the parties themselves or witnesses that were closely

aligned to one side or the other, the trial judge singled out the

testimony of Lawrence Knight, the then acting branch manager of

MB Financial Bank, as a "totally noninterested" witness. The

trial judge found Knight contradicted Sid in "two major areas."

Sid claimed neither he nor his wife was present during the

meeting between Knight and Victoria. The circuit court found the

contrary to be true: "Mr. Knight testified that they were not
only present, but spoke during the meeting." Sid also claimed

that he merely arranged to have representatives of the three

banks meet with Victoria at his home to discuss her assets and,

as the circuit court found, "he did not discuss the particulars

of the certificates or his mother's desires [regarding changing

the titles to the CDs] with any of the bankers." As to the CDs

held by MB Bank, Sid was asked, "Did you and [Knight] go through

the accounts that [Victoria] had on deposit at MB Bank at that

time?" He answered, "No." Sid claimed, "I just explained to

[Knight] my situation was my mother wasn't mobile enough and that

she needed someone to come and speak with her about her assets."

Knight, however, arrived at Sid's home with forms necessary to

add Sid's name to the CDs held by MB Financial Bank. Knight

spoke only to Sid regarding Victoria's CDs before making the trip

to meet with Victoria. A strong inference arises from Knight's

testimony that Sid anticipated the use of those forms at Knight's

meeting with Victoria and requested that Knight come prepared.

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The circuit court also pointed out that Sid failed to come

forward with any witnesses that might shed light on the

discussions he had with representatives of the other two banks.

Knight was the only bank official that testified, though Sid

testified that two LaSalle Bank representatives visited with

Victoria at his home. "[T]he Court has no information as to what

transpired at the [other banks] and who was present at any

discussion at the respondent's home during the discussions with
Victoria." It is fair to infer that the circuit court considered

the absence of such evidence in assessing whether Sid met his

burden of rebutting the strong showing of the presumption of

undue influence.

In his main brief, Sid attempts to lessen the significance

of the "two major areas" of conflict with Knight's testimony.

"Noticeably absent from the record is testimony from Mr. Knight

indicating that SID or his wife or anyone else participated in

discussions specifically regarding the accounts. Furthermore,

there is nothing in Mr. Knight's testimony which would indicate

that SID was instructing Mr. Knight or VICTORIA about how the

accounts should be retitled." Based on the record before us,

however, the trial judge, as trier of fact, found little

significance in the absence of direct testimony regarding the

discussions Sid may have had with Knight concerning the retitling

of the CDs. Because this case involves the strength of the

showing supporting the presumption of undue influence, that no

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direct testimony of undue influence was elicited is of no benefit

to Sid; it fell to Sid to affirmatively meet the strong

presumption of undue influence with clear and convincing evidence

of his own. Franciscan Sisters, 95 Ill. 2d at 463.

We find no basis to question the circuit court's assessment

of the evidence. We agree that the evidence Sid presented failed

to reach the clear and convincing threshold to rebut the strong

presumption of undue influence. See In re Estate of DeJarnette,
286 Ill. App. 3d 1082, 1088, 677 N.E.2d 1024 (1997) ("Significant

factors in meeting that burden [to rebut the presumption of undue

influence] include a showing that the fiduciary made a frank

disclosure of the information he had, he paid adequate

consideration, and the principal had competent and independent

advice."). The trial judge's finding against Sid is consistent

with the manifest weight of the evidence.

Rebuttal Evidence

In his main brief, Sid contends Ed and Margaret's decision

to introduce rebuttal evidence "waived the presumption of undue

influence." To support this contention, Sid quotes the nature of

rebuttal evidence from Walters v. Yellow Cab Co., 273 Ill. App.

3d 729, 739-40, 653 N.E.2d 785 (1995) (rebuttal evidence is

offered to "explain, repel, contradict, or disprove evidence

presented by the defendant"). He argues that by offering

rebuttal evidence, "EDWARD and MARGARET necessarily admitted that

SID introduced evidence sufficient to meet his burden of

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production." We disagree.

While that explanation is a "possibility" as noted by the

trial judge, it fell to the trial judge to decide whether Sid's

evidence was "sufficient" to rebut the presumption of undue

influence. The trial judge ruled Sid's evidence was not. As we

ruled above, that finding is consistent with the manifest weight

of the evidence. Nor are we persuaded that the bank documents

introduced by Ed and Margaret during rebuttal should somehow
lessen Sid's burden when had the same evidence been introduced

during Ed and Margaret's case in chief, Sid would be deprived of

the argument he makes now. Sid offers no authority for this

novel proposition; nor will we provide him with one.

Motion to Reopen

Finally, Sid argues the circuit court erred in denying his

motion to reopen the proofs to admit a copy of a trust allegedly

executed by Victoria and discovered on October 3, 2009. The

motion to reopen was filed on the same day Sid filed his notice

of appeal. The circuit court denied the motion several months

later. Sid argues that the circuit court abused its discretion

in denying his motion.

We dismiss that portion of the appeal. See Estate of

DeJarnette, 286 Ill. App. 3d at 1091 (because "the trial court

never ruled on the motion for sanctions," the appellate court

held petitioners' claim seeking sanctions based on the citation

proceedings was not properly before it). As we indicated above,

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a final settlement of the estate proceedings before us had not

been entered by the time of this appeal. This appeal is limited

to that " 'definite and separate portion' " of the controversy

between the parties that settled the rights of the parties to the

bank CDs. Estate of Yucis, 382 Ill. App. 3d at 1069 (quoting

Arachnid, Inc., 210 Ill. App. 3d at 1103).

CONCLUSION

Because the CDs that are the subject of this appeal were
retitled in Sid's favor after Victoria granted him power of

attorney, a presumption of undue influence arose, which required

Sid to produce clear and convincing evidence to rebut. A strong

showing supporting the presumption of undue influence was made in

the citation proceedings below. Consistent with the manifest

weight of the evidence, the circuit court ruled that the

presumption was not rebutted, even after Ed and Margaret chose to

introduce limited rebuttal evidence. The bank CDs were assets of

the estate. The issue regarding whether Sid's motion to reopen

was correctly dismissed some months after the notice of appeal

was filed is not properly before us.

Affirmed in part and dismissed in part.

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1-09-2785
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________

IN RE ESTATE OF
VICTORIA M. PAWLINSKI,

Deceased

(Margaret T. Calvert, and Edward J. Pawlinski,

Plaintiffs-Appellees,

v.

Sidmund J. Pawlinski,
Defendant-Appellant).
________________________________________________________________

No. 1-09-2785

Appellate Court of Illinois
First District, Sixth Division

Filed: January 21, 2011
_________________________________________________________________

PRESIDING JUSTICE GARCIA delivered the opinion of the court.

CAHILL and MCBRIDE, JJ., concur.
_________________________________________________________________

Appeal from the Circuit Court of Cook County
Honorable Malak, Judge Presiding
_________________________________________________________________

For DEFENDANT- Goldstine, Skrodzki, Russian,
APPELLANT Nemec and Hoff, Ltd.
William H. Hrabak, Jr.
Sara L. Spitler
835 McClintock Drive
Burr Ridge, IL 60527

For PLAINTIFF- James F. Dunneback
APPELLEES Anne M. Scheurich
Jessica K. Thomas
James F. Dunneback, P.C.
9501 W. 144th Avenue, Suite 200
Orland Park, IL 60462

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