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In Re Estate of Dorfman

OPINION FILED NOVEMBER 20, 1985.

IN RE ESTATE OF ALLEN M. DORFMAN, DECEASED (MERIDIAN HEALTH ADMINISTRATORS, INC., ET AL., PLAINTIFFS-APPELLANTS,

v.

ESTATE OF ALLEN M. DORFMAN ET AL., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding. PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Plaintiffs bring this interlocutory appeal from an order of the circuit court which denied their respective motions, filed in the estate of Allen M. Dorfman, deceased, for "Distribution of Trust Proceeds" to plaintiffs in the aggregate sum of $928,839.57. The monies sought by plaintiffs represented a refund to the estate of bail bond security made by the Clerk of the United States District Court for the Northern District of Illinois, which had been earlier posted to secure the release from custody of Allen M. Dorfman after his conviction of Federal criminal offenses. After hearings, the trial court denied plaintiffs' motions and they appeal, contending: (1) that plaintiffs were, as a matter of law, entitled to these funds, which they had advanced to secure Dorfman's bond, as plaintiffs had complied with local Federal rules relating to the refund of bond monies; (2) the trial court considered improper evidence in ruling upon plaintiffs' motions; (3) the decision of the trial court was contrary to the evidence and applicable law; and (4) equity requires return of the bond money to plaintiffs who had advanced it.

The record discloses that decedent, Allen M. Dorfman, had been a defendant in a criminal action brought against him in the United States District Court for the Northern District of Illinois. After trial and his conviction in December 1982, an appearance bond was set by the court in the sum of $1,000,000 cash and also all of the common stock in an incorporated insurance agency owned by Dorfman and his mother. Funds were sought from various enterprises in which Dorfman had interests, his associates and family and on December 17, 1982, Allen Dorfman, his son David, and two attorneys appeared in the office of the clerk of the district court to make bail. Cashier's checks issued by the Manufacturers Bank of Chicago and the American National Bank payable to the clerk of the court were tendered to the clerk in the following amounts and indicated these remitters:

$385,000 - Morton Harris & Morris Weiser 250,000 - Federal Services Co., Ltd. 100,000 - Federal Computer Systems, Inc. 375,000 - Prescription Plan, Inc. 360,000 - Meridian Health Administrators, Inc. 340,000 - The Meridian Agency, Inc. 375,000 - Allen Dorfman 315,000 - David Dorfman __________ $1,000,000

The clerk took the checks to District Judge Prentice Marshall for approval and, when he returned, inquired in what manner the checks were to be receipted. In an affidavit which was admitted in evidence by stipulation in the trial court, deputy clerk Perry Moses stated that Allen Dorfman told Moses to issue the receipts in Allen Dorfman's name and that one of Dorfman's attorneys said to do whatever was easiest. Moses made out the receipts for each check to Allen Dorfman and they were received by his son, David. Receipts for the certificates of stock, which were also tendered to secure the bond, were issued by the clerk in the names of its owners, Allen and Rose Dorfman.

Allen Dorfman was released on the bail bond thus posted and, on January 20, 1983, died as a result of gun shots inflicted by persons unknown. On January 24, decedent's estate was opened for probate in the circuit court of Lake County and letters of office issued to his sons, James and David Dorfman, as executors. The executors subsequently moved in the district court for termination of Dorfman's bond, and requested the $1,000,000 cash deposit, with earned interest, be paid over to the estate. That motion was granted on January 26 and the funds given over by the clerk to the executors of decedent's estate, who presently hold it in that capacity.

In February 1983, the executors moved in the district court to vacate the earlier order which had transferred the money to the estate and for issuance of a new order directing the bond monies be paid to the respective plaintiffs, who were alleged to have been the actual depositors of the funds. After considering evidence and the arguments of the parties, Judge Marshall denied plaintiffs' motion. In doing so the court found that when the $1,000,000 was deposited the receipt was in the name of Allen Dorfman at his express direction and that no depositor, other than Dorfman, had then claimed any interest in the funds. The court determined that in such circumstances Local Criminal Rule 1.10D, relied upon by plaintiffs, did not permit the relief requested and the matter should be pursued in the circuit court of Lake County, where the estate was in probate. No appeal was taken by plaintiffs from that judgment.

Subsequently, plaintiffs, or their assignee, filed separate motions in the estate proceedings in the circuit court which were identical, except for the sums for which recovery was sought. These motions requested "Distribution of Trust Proceeds" and alleged, inter alia, that each plaintiff had deposited funds with the clerk of the district court to secure the appearance of Allen Dorfman under the bond set by the court. As such, it was alleged, the funds constituted a special fund and trust; they were not under the ownership, custody or control of Allen Dorfman and were at all times owned by the respective plaintiffs; that the funds paid over to the executors by the district court clerk were traceable to the estate and, as trust funds not belonging to the estate, should be delivered to plaintiffs as beneficiaries. The motions also alleged that the executors of the estate agree the bond funds should be returned to plaintiffs, who were the actual depositors of it.

In addition to this motion, each plaintiff, or his assignee, also filed a claim in contract against the estate of decedent in the amount of the funds posted as bond and adopted, as his claim, the allegations of the motion for distribution earlier described. The claim was described on its face as protective, in the event the pending motion was denied, and apparently remains pending in the trial court.

The trial court appointed a special administrator to represent the interests of the estate in that matter and, after an evidentiary hearing, denied plaintiffs' motions for distribution of trust proceeds. In doing so, the trial court found that the funds provided by plaintiffs to secure the bond were loans to Allen M. Dorfman and, therefore, includable in his estate; that no express trust was created and that there was no basis upon which a constructive or resulting trust could be created with regard to those funds. The trial court also made findings there was no just reason for delaying enforcement or appeal, pursuant to Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)), and plaintiffs appeal.

By their notice of appeal and arguments in this court plaintiffs seek review and reversal only of the finding of the trial court the funds posted as bond were loans to Allen M. Dorfman and now are a part of his estate. Plaintiffs' pleadings in the trial court were directed to the imposition of a "special fund and trust" in the disputed funds in an effort to remove the funds from the estate to be returned to plaintiffs. In the briefs of the parties, we are advised that other claims against the estate exceed the sums here sought from it by plaintiffs, and it is thus understandable why plaintiffs would wish to recover these funds by the means urged rather than seek to do so as a claimant against the estate. Plaintiffs do not, however, contend on appeal that a trust should be imposed or that the trial court erred in rejecting their motions which were premised upon "trust" grounds.

• 1 Theories not advanced and argued on appeal or supported by appropriate citation of authority are deemed waived. (Saldana v. Wirtz Cartage Co. (1978), 74 Ill.2d 379, 386, 385 N.E.2d 664; Flynn v. Vancil (1968), 41 Ill.2d 236, 242, 242 N.E.2d 237.) As plaintiffs have abandoned on appeal the theory upon which they sought relief in the trial court under their motions seeking declarations of trust and distribution of the proceeds, there is, arguably, no basis upon which this court can grant relief and the appeal should be dismissed. (See Biggs v. Spader (1951), 411 Ill. 42, 44, 103 N.E.2d 104, cert. denied (1952), 343 U.S. 956, 96 L.Ed. 1356, 72 S.Ct. 1051; E.M.S. Co. v. Brandt (1968), 103 Ill. App.2d 445, 448, 243 N.E.2d 695.) However, in the interests of judicial economy, we review the issues raised by plaintiffs' brief.

I

Plaintiffs contend first they are entitled to return of the bond funds advanced as a matter of law, arguing they complied with the terms of local Federal Criminal Rule 1.10D relating to bail bond procedures in the Federal district court by which, in the proper circumstances, funds deposited to secure a bond may be refunded to someone other than the defendant.

• 2 It is apparent plaintiffs here collaterally attack a judgment of the Federal district court from which they had not appealed in that jurisdiction, and they may not do so. Any relief sought from the judgment which applied the procedural rules of that court to plaintiffs' request for refund there must be to the Circuit Court of Appeals (7th Circuit) and this court may not exercise jurisdiction. (Aaron v. Dausch (1942), 313 Ill. App. 524, 536, 40 N.E.2d 805; Walker v. Cockrell ...


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