Appeal from the Circuit Court of Cook County; the Hon. Albert
Green, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an action for an accounting of amounts allegedly due as between cotenants under a land trust upon partition sale of the property. On appeal, plaintiff contends that the trial court erred in (a) imposing an equitable lien against his share of the proceeds of the sale for expenses incurred prior to the date on which he acquired that interest; and (b) excluding evidence offered to support alternative theories with regard to the proper accounting period.
The parties herein are the son and daughter of Catherine Ciolek, and the property which is the subject matter of this controversy, a two-flat apartment building at 1936 Warner Avenue in Chicago, was originally acquired by plaintiff and Mrs. Ciolek in 1952. Title was vested at all times pertinent hereto in La Salle National Bank, as trustee under trust No. 14424 (the land trust). Plaintiff and Mrs. Ciolek occupied the second-floor apartment until 1958, when he moved out and transferred his interest in the land trust to her. Mrs. Ciolek continued to reside in the second-floor apartment until late 1978 or early 1979; defendant occupied the first-floor apartment from 1967 until the property was sold in 1981.
Mrs. Ciolek remained the sole beneficial owner of the land trust until April 1968, when she conveyed a 50% interest therein to defendant. Thereafter, in September 1970, Mrs. Ciolek executed a document which transferred to defendant the remaining 50% beneficial interest in the land trust, subject to a life estate in herself. However, Mrs. Ciolek subsequently asserted that she had no knowledge of the true nature of that document, maintaining that it was her understanding that it merely provided a tax benefit to defendant, and that it was never her intention to transfer the remaining 50% beneficial interest to defendant. In 1973, Mrs. Ciolek filed an action seeking to set aside the 1970 assignment on the ground that defendant breached her duties as a fiduciary, and the trial court therein found that a fiduciary relationship existed; that Mrs. Ciolek, who was then 78 years old and had substantial difficulty with the English language, did not understand the nature of the transaction; and that defendant had not rebutted the presumption that the transaction was fraudulent, since she failed to prove that she did not breach her fiduciary duty to make free and frank disclosure of all relevant information concerning the nature of a transaction in which she profited. Mrs. Ciolek was restored to ownership of a 50% beneficial interest in the land trust, and that decree was affirmed by this court in Ciolek v. Jaskiewicz (1976), 38 Ill. App.3d 822, 349 N.E.2d 914.
It is now undisputed that from late 1972, when she first learned of the purported transfer of her 50% interest, until she vacated her apartment in late 1978 or early 1979, Mrs. Ciolek refused to pay any portion of the mortgage, taxes, or maintenance and repair expenses on the subject property; as a result, all of those expenses were paid by defendant. In January 1977, Mrs. Ciolek assigned her 50% beneficial interest to plaintiff, and it appears that he, too, failed to make any contribution toward the mortgage, taxes, or maintenance and repair expenses until ordered to do so by the court. Plaintiff initiated the instant action in 1978, seeking partition of the property and an accounting, and defendant counterclaimed against him and Mrs. Ciolek, seeking contribution for their share of the expenses paid by her. Thereafter, plaintiff amended his complaint, adding Mrs. Ciolek as a plaintiff in the action for an accounting. It appears, however, that Mrs. Ciolek died sometime in 1980, and neither party sought to substitute her personal representative as either plaintiff or counterdefendant.
On September 21, 1981, the property was sold pursuant to the request for partition, and no questions are raised concerning the propriety of granting partition or the manner in which the property was sold. The proceeds were placed in escrow pending a final resolution of the parties' actions for an accounting, and the trial court established an accounting period of January 1, 1972, to the date of sale. That period was originally set by order of the court on March 2, 1981, but the order recites no reasons for the period chosen, and apparently no transcript was made of any proceedings before the court at that time. Subsequently, in an October 28, 1982, order entered nunc pro tunc as of March 2, 1981, the trial court stated:
"The Carlyles contend that they have credits coming dating back to 1967 claiming that Mrs. Ciolek paid the mortgage and that Adeline Jaskiewicz paid nothing and it is the contention of the Jaskiewicz's that no credit should be considered prior to 1972.
The parties by and through their attorneys agreed that the threshold question to be decided was whether or not to start with 1967 or 1972 in applying credits.
It was agreed that this Court should read:
a) the opinion handed down by the Appellate Court in Ciolek v. Jaskiewicz * * *;
b) the excerpts from the record filed in said case;
c) the transcript of Catherine D. Ciolek's deposition taken on the 23rd day of August 1973, in case 73 Ch 935 and;
d) read the brief filed by the defendant appellant in [Ciolek v. Jaskiewicz].
The Court has reviewed all of the aforementioned matters carefully and the Court comes to ...