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Labarbera v. Labarbera

OPINION FILED JULY 26, 1983.

ANTHONY LABARBERA, JR., PLAINTIFF-APPELLANT,

v.

ROSE LABARBERA, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. George A. Higgins, Judge, presiding.

PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 30, 1983.

Plaintiff, Anthony LaBarbera, Jr., brought this action against his brother Joseph's widow, defendant, Rose LaBarbera, seeking a declaration of a constructive trust over funds which belonged to their parents and were allegedly misappropriated by Joseph. *fn1 Plaintiff appeals the circuit court of Cook County's refusal to declare either an express or constructive trust, or to allow prejudgment interest on the monies allegedly due.

Plaintiff's amended complaint averred the following: after the death of their father in 1968, Joseph, who was a licensed real estate broker, took it upon himself to manage the affairs of their mother, who died in 1978 at the age of 90 or over. On April 3, 1971, Joseph executed a document captioned "DECLARATION," which stated that he had received from the estate of his deceased father and from his living mother the following sums:

1. The sum of $21,200 on property located on West North Avenue in Chicago, Illinois, secured by a note and mortgage;

2. Proceeds in the amount of $17,000 from the sale of property on Halsted Street in Chicago; and

3. The sum of $2,000 which he drew from his parent's bank account.

The next paragraph in the declaration read:

"JOSEPH LABARBERA further states that he waives, relinquishes and surrenders any rights to the balance of the properties held by his mother and his brother, ANTHONY LABARBERA, and in the event of the death of his mother, the total sums remaining in the joint names of various parties is to be released to NANTHONY [sic] LABARBERA. That any differences between the sums he has received and the sums that ANTHONY LABARBERA should receive will be settled between them and Joseph LaBarbera will pay to Anthony LaBarbera the differences within a reasonable time. * * *"

The document was signed by Joseph and was notarized.

The complaint further alleged that, as said funds were never accounted for, an accounting was due. Plaintiff also alleged that Joseph sold properties belonging to their parents and used the proceeds to buy real estate registered in his and defendant's names as joint tenants, or in the alternative, registered pursuant to a declaration of trust which passed the interest solely to defendant after the death of Joseph in 1975. Plaintiff additionally averred that Joseph secured cash from certain bank accounts owned by their mother, including a certain sum from the Bank of Lincolnwood. All of the transactions mentioned were allegedly secret and for the sole benefit of Joseph and defendant, and to plaintiff's detriment. Allegedly Joseph was in a fiduciary relationship with plaintiff, or in the alternative, acted fraudulently with respect to the transactions. Plaintiff claimed that he had previously demanded an accounting from defendant for one-half of the subject funds and that defendant refused to account for them.

Plaintiff prayed that an accounting be had of the funds secured by Joseph in derogation of the declaration of April 3, 1971; that the court impress a constructive trust on the real estate; that the court restrain defendant from transferring or disposing of the subject property and funds; and that the court grant other relief, including prejudgment interest.

During the bench trial, plaintiff testified that his parents trusted his brother Joseph and that in regards to his father's affairs, Joseph "took care of everything." Plaintiff worked long hours as a truck driver and "never had much to do with" his parents. He stated that he and Joseph argued after their father died and that he wanted something on paper so that "my mother and myself would be secured * * * in case of [Joseph] dying, that she wouldn't be left out with all this money that he had in his possession." The brothers, at Joseph's suggestion, went to Joseph's lawyer, Jiro Yamaguchi, and requested that he "write up something that would protect my mother, a declaration of trust." The "DECLARATION" was drafted and executed on April 3, 1971.

As to the North Avenue property listed on the declaration, plaintiff testified that in the early 1960's, before their father died, Joseph informed plaintiff that the bank was going to foreclose on his property. Joseph asked plaintiff to accompany him to their father's house, which ...


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