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Michael v. First Chicago Corp.

OPINION FILED DECEMBER 20, 1985.

RICHARD MICHAEL ET AL., PLAINTIFFS-APPELLANTS,

v.

FIRST CHICAGO CORPORATION ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 21, 1986.

Plaintiffs, Richard and Cathleen Michael, appeal from a judgment at the close of their case in a bench trial in favor of defendant, First National Bank of Chicago (First Chicago), in a declaratory judgment action brought to determine whether the plaintiffs were entitled to possession and ownership of certificates of deposit they found in a locked file cabinet sold by First Chicago.

The issues for our review are (1) whether certain judicial admissions were made in First Chicago's pleadings, and (2) whether the trial court's granting of First Chicago's motion for judgment at the close of plaintiffs' evidence on the issue of possession of the certificates of deposit was against the manifest weight of the evidence.

Plaintiffs' complaint for declaratory judgment was brought to declare possession and ownership in plaintiffs in certain certificates of deposit. First Chicago filed a counterclaim seeking possession and other relief concerning the certificates of deposit. Plaintiffs then filed two additional counts seeking a declaration that presentment of the certificates of deposit was excused and an order requiring First Chicago to pay the principal and interest on the certificates of deposit plus attorney fees. The case proceeded to a bench trial only on plaintiffs' initial complaint for declaratory judgment for possession of the certificates of deposit.

The relevant facts adduced at trial are as follows. Numerous file cabinets were purchased from First Chicago in June 1983 by Walter Zibton, a new and secondhand office supply and furniture dealer, as part of a group of items sold on an "as is" basis by First Chicago as they were no longer being used. Zibton had previously purchased used furniture from First Chicago. He looked at the furniture and made a bid on it. He bought the furniture as a group whether damaged or not. He did not care whether the file cabinets were locked or not. On other occasions, if he later discovered a file cabinet was locked, he would not call the bank to take them back — he bought them "as is." On occasion, he later found items in drawers of furniture he purchased. These items were junk and he threw them out. No one from First Chicago said anything about the contents of the furniture nor did anyone tell him anything of value could be found in the file cabinets. He was not told what had been stored in the file cabinets. He did not expect to find anything of value in the file cabinets.

The file cabinets were put on sale at a parking lot sale in early July 1983. Charles Strayve indicated an interest in one of the file cabinets up for sale and was told by Zibton that he could have it, without paying anything, if he took all four file cabinets left on the lot. Some of the file cabinets were locked. Later that same day, Strayve gave one file cabinet, which was locked with no keys, to his friend Richard Michael.

About six weeks later, on August 18, 1983, Michael was moving the file cabinet in his garage. It fell over and several of the locked drawers opened revealing certificates of deposit stacked inside. He and his wife sorted through the over 1,600 certificates of deposit and found seven certificates that had not been cancelled or stamped paid which were worth a total of $6,687,948.85 with maturity dates ranging from October 8, 1982, to January 13, 1983. Six of the certificates of deposit were payable to "Bearer" and one was payable to the order of La Salle National Bank, trustee. The following day, Richard Michael contacted the FBI, which took possession of all of the certificates of deposit. This declaratory judgment action was filed August 24, 1983. Although not at issue in the trial for possession of the certificates, it appears from the record that the seven certificates of deposit had previously been paid by First Chicago.

First Chicago employees testified that the responsibility for storing paid certificates of deposit was changed to a different unit of the bank between March and May 1983. The certificates of deposit were moved from a vault to file cabinets at that time, each drawer labelled with a card stating "Paid Negotiable CDs" and indicating the numbers of the certificates of deposit contained in the drawer. The new unit responsible for storing certificates of deposit determined that they could not use the file cabinets, so the certificates of deposit were transferred to tote boxes. The file cabinets were randomly checked to determine if the contents were gone and were then transferred to the warehouse for sale. Two employees testified that, to their knowledge, only paid certificates of deposit were received for storage. Testimony of the bank employee in charge of selling used furniture also indicated that, although papers were occasionally found in a piece of furniture that was delivered to the warehouse, he did not know there was anything valuable in that filing cabinet and he sold Mr. Zibton the furniture, not certificates of deposit.

At the close of the plaintiffs' evidence, the court granted First Chicago's motion for judgment in its favor, finding that plaintiffs had not established the certificates of deposit were abandoned, and ordering that First Chicago was entitled to possession and ownership of the certificates of deposit.

• 1 We address first the plaintiffs' contention that the trial court erred in failing to admit as evidence two claimed judicial admissions made by First Chicago in its verified pleadings. Immediately prior to the beginning of trial, plaintiffs filed several motions which, in essence, sought a finding that certain facts be deemed judicial admissions based on First Chicago's admissions in their verified pleadings. The trial judge reserved a ruling on the motions and no specific ruling was subsequently made on the motions, nor did plaintiffs later request a ruling. First Chicago also was given leave to amend its answer to paragraph 8.A.4. of the complaint, which it did.

The first pleading which plaintiffs contend contained a judicial admission is First Chicago's verified answer which admitted the allegation in paragraph 8.A.4. of the complaint. Paragraph 8.A.4. alleges "[t]hat Wallace Zibton secured said cabinets and contents including the instruments by way of purchase for value from one or more of the Defendants." The verified amended answer to paragraph 8.A.4. admitted that Zibton secured the cabinets by way of purchase for value and denied that Zibton obtained the certificates of deposit lost or mislaid in the cabinet by way of purchase for value from First Chicago. Plaintiffs argue on appeal that the issue of whether the filing cabinets and its contents were purchased for value should not have been a fact issue at trial because of the admission to this fact in First Chicago's original verified answer. They contend that the filing of the amended answer did not operate to change the judicial admission made in the original verified answer under current Illinois law.

First Chicago, as one of its arguments addressed to this issue, replies that the failure of plaintiffs to obtain a ruling on their pretrial motions for a finding of a judicial admission has waived the point for review. Generally, it is true that when the court reserves its ruling on a motion or an objection, the movant or objecting party must seek a decision or ruling in order to preserve the issue for review. (Feldscher v. E & B, Inc. (1983), 95 Ill.2d 360, 365-66, 447 N.E.2d 1331; In re Annexation to Village of Downers Grove (1979), 22 Ill. App.3d 122, 127-28, 316 N.E.2d 804.) However, although the trial court did not ever expressly rule on the motions, it is evident from the trial court's granting of First Chicago's motion for a judgment at the close of plaintiffs' case that it did not consider First Chicago's pleadings in question to constitute conclusive judicial admissions.

• 2 We, therefore, address the merits of plaintiffs' argument that the admission in First Chicago's verified original answer was a conclusive judicial admission of the fact that the cabinets and contents were purchased for value from First Chicago. Generally, an amended pleading supersedes the prior pleading. (Foxcraft Townhome Owners Association v. Hoffman Rosner corp. (1983), 96 Ill.2d 150, 153-54, 449 N.E.2d 125; Yarc v. American Hospital Supply Corp. (1974), 17 Ill. App.3d 667, 670, 307 N.E.2d 749.) However, where the original pleading is verified, it remains a part of the record and any admissions contained in the original verified pleading which are not the product of mistake or inadvertance are binding judicial admissions (Beverly Bank v. Coleman Air Transport (1985), 134 Ill. App.3d 699, 703, 481 N.E.2d 54; Robins v. Lasky (1984), 123 Ill. App.3d 194, 19899, 462 N.E.2d 774), and any such admission has the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Beverly Bank v. Coleman Air Transport (1985), 134 Ill. App.3d 699, 703, 481 N.E.2d 54.

• 3 From our examination of First Chicago's entire original answer and affirmative defense to plaintiffs complaint, it is clearly evident that First Chicago denied it intended to abandon or sell the certificates of deposit and admitted it intended to dispose of only the cabinets. The affirmative defense sets forth that the certificates of deposit were inadvertently lost or mislaid in the file cabinets by First Chicago. In its motion to amend the original answer, First Chicago sets forth that the amended answer is necessary "to correct the mistaken inference which plaintiffs draw from the [original] Answer." First Chicago only intended to admit in its answer that the cabinets were secured by purchase for value and not that the certificates of deposit were also secured by purchase for value. Accordingly, the trial court properly allowed ...


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