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Mccormick v. Louis Joliet Bank & Tr. Co.

OPINION FILED APRIL 14, 1983.

JESSE E. MCCORMICK, PLAINTIFF-APPELLANT,

v.

LOUIS JOLIET BANK & TRUST COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Will County; the Hon. Louis K. Fontenot, Judge, presiding.

PRESIDING JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 25, 1983.

Jesse E. McCormick appeals from judgment entered by the circuit court of Will County granting a motion filed by Louis Joliet Bank & Trust Company for fees and expenses pursuant to section 41 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 41.) On appeal, McCormick contends that the bank failed to establish either an untrue pleading or that any allegedly untrue pleading was made without reasonable cause. In the alternative, McCormick contends that the amount of fees and expenses awarded were excessive.

The complaint, upon which the instant action is founded, was filed by McCormick in March of 1981 against the bank in its capacity as administrator of the estate of his deceased son, LeRoy E. McCormick. Relevant allegations of the complaint serve to detail the background of the parties' dispute:

"2. On or about Spring, 1978, Plaintiff made a loan of $6,000.00 to the said LeRoy E. McCormick, for the purpose of assisting LeRoy McCormick in making the down payment on the purchase of a house.

3. On or about August 20, 1978, LeRoy E. McCormick died.

7. At all times relevant hereto, John Sternisha was employed by the Defendant as the Trust Officer and was acting within the course and scope of his employment.

8. On or about October, 1978, Plaintiff had a conversation with John Sternisha regarding the $6,000.00 loan to LeRoy E. McCormick.

9. That, Plaintiff informed the said John Sternisha that he had loaned LeRoy E. McCormick the $6,000.00 and desired to present a claim for the money against the Estate.

10. That, Plaintiff handed to Mr. Sternisha copies of checks which represented the loan to LeRoy E. McCormick, one of the checks bearing the notation `Loan'.

11. That, the said John Sternisha told Plaintiff that the $6,000.00 would be paid as a claim against the Estate, and that it was not necessary for Plaintiff to final [sic] a formal claim therefor, including the statement `Don't bother to file a claim — I'll take care of it.'

12. That, the Estate was inventoried on December 5, 1978.

13. That, on or about September, 1979, after six months from the date of the issuance of the letters of administration had been filed, Plaintiff again spoke with John Sternisha.

15. That, during said meeting John Sternisha informed Plaintiff that the claim for the $6,000.00 would not be honored."

Further attempts by McCormick to recover the $6,000 out of court proved unsuccessful, so he filed a claim in probate court on December 7, 1979, explaining therein "that in October of 1978 the Executors [sic] Agent stated that it would not be necessary to file this claim, that this claim would be paid." On motion of the administrator, the probate court dismissed the claim for failure to file timely and noted that the doctrine of estoppel, as a matter of law, "cannot * * * operate to extend the proscribed [sic] period for filing * * * pursuant to Article 28 of the Probate Act."

Following this defeat, McCormick resorted to filing the aforementioned complaint against the administrator for "improper conduct * * * within [the meaning of] Section 12-15 of the Probate Act."

On November 2, 1981, the trial court heard the matter. McCormick testified that the only evidence he had to prove that he had, in fact, loaned $6,000 to his son consisted of two checks dated April 17, 1978, and June 12, 1978, for $5,000 and $1,000, respectively, payable to "Lee McCormick" and drawn on the account of Jesse McCormick and Suvasini McCormick.

During direct examination about McCormick's claim against the estate, the following colloquy took place between counsel and McCormick:

"Q. Did you have occasion to tender any documentation regarding this supposed six thousand dollar loan to ...


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