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Almgren v. Engelland

OPINION FILED MARCH 23, 1981.

CAROL ALMGREN, PLAINTIFF-APPELLANT,

v.

ARTHUR ENGELLAND, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. DURHAM, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Plaintiff instituted an action for fraud against her former attorney. At the close of all the evidence, defendant made a motion for a directed verdict. Defendant's motion was granted. Plaintiff appeals.

On appeal, plaintiff argues that the trial court erred in directing a verdict for defendant.

We affirm.

The uncle of Carol Almgren died and left her one-sixth of his estate. Plaintiff retained defendant Arthur Engelland as her attorney to represent her interests in that estate. Defendant previously had represented plaintiff in a divorce suit and in a foreclosure proceeding.

Defendant advised plaintiff that since she would not receive any money from the estate for a year or two, she should assign her interest to a third party. Defendant contacted Fred Adams, who agreed to purchase plaintiff's interest in the estate for $13,500. Plaintiff signed the assignment, but claims she did not realize that she was selling her interest in the estate when she did so.

Adams gave defendant two uncertified checks made payable to plaintiff, one in the amount of $10,000 and one in the amount of $3,500. Plaintiff endorsed the two checks. (At trial, plaintiff admitted signing the two checks. Earlier, at a deposition, she denied signing any checks.) Defendant went to the issuing bank, had the $10,000 check certified, cashed it, and gave plaintiff $10,000. Later, he had the $3,500 check certified and cashed and gave the money to plaintiff. (Plaintiff claims that defendant did not give her the proceeds from either of the checks.)

The circuit court approved her assignment of interest. On the same day, plaintiff signed a receipt for $13,500. (Plaintiff claims that the receipt was totally blank when she signed it and denied that she was present in court that day.)

The value of the amount plaintiff would have received from her uncle's estate if she had not assigned her interest was $24,498. This amount was distributed to Adams.

The sole issue presented for our review is whether the trial court erred in directing a verdict for defendant at the close of all the evidence. The rule in Illinois governing directed verdicts was set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504:

"[V]erdicts ought to be directed * * * only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."

In the case at bar, the trial judge cited the Pedrick case as the basis of his ruling in defendant's favor on the motion for a directed verdict. We believe that based on the evidence, or lack thereof, the trial court properly applied the Pedrick standard.

The only evidence offered by plaintiff in support of her claim of fraud was her own uncorroborated testimony. The record reveals that at trial plaintiff gave testimony which was totally inconsistent with her own prior sworn statements.

An elaboration of one of the more glaring inconsistencies in plaintiff's testimony will demonstrate why a directed verdict was appropriate. At trial, plaintiff admitted that she had endorsed Adams' checks for $10,000 and $3,500. During depositions and at trial, plaintiff gave three different statements regarding the checks. First, she unequivocally stated that she never had signed either check given to her by defendant. Second, she claimed that she had signed the two checks, but that the State's Attorney's office had shown her a second set of checks for $10,000 and $3,500 bearing her forged signature. (Handwriting tests performed on the checks which plaintiff saw at the State's Attorney's office showed that the signatures on the two checks were in fact plaintiff's.) Third, she stated that there were actually three separate checks in the amount of $10,000, including: ...


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