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03/27/89 Florence Rynn, v. William Owens Et Al.

March 27, 1989

FLORENCE RYNN, PLAINTIFF-APPELLANT

v.

WILLIAM OWENS ET AL., DEFENDANTS-APPELLEES



In Conclusion, the summary judgment was decided on the basis of the pleading that supported it, the original complaint. Mr. Platt had every opportunity to withdraw the motion or amend it to be consistent with the allegations of the amended complaint, but did not do so. Looking to the form and substance of the accounts, the trial court properly found that Mrs. Rynn was entitled to half the funds from the accounts for which she had signed. Further, the summary judgment order effectively determined the rights of the parties with respect to all of the funds. Because we hold that the trial court ruled correctly, the amended complaint, as noted above, is now moot. Finally, the record shows absolutely no evidence of bias or prejudice. The ruling on Rynn's motion for summary judgment is affirmed, and accordingly, it is unnecessary to consider the motion for substitution of Judges.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

536 N.E.2d 959, 181 Ill. App. 3d 232, 129 Ill. Dec. 909 1989.IL.400

Appeal from the Circuit Court of Cook County; the Hon. Harold A. Siegan, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. MANNING, P.J., and QUINLAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

Plaintiff Florence Rynn sued her nephew, defendant William Owens, for conversion of funds held in four bank accounts established by Mary Tamborine, now deceased. Rynn appeals a summary judgment order that the funds from two of four accounts be divided equally between Rynn and Owens. For the reasons below, we affirm.

In 1986, Mrs. Mary Tamborine, Rynn's sister and Owens' aunt, used money she inherited from her husband to open four bank accounts. On March 10, Mrs. Tamborine opened two accounts at the Colonial Bank & Trust Company in Chicago , savings account No. 87496 -- 6 and savings account No. 87497 -- 4. On March 17, Mrs. Tamborine opened checking account No. 63 -- 112 -- 4 at CB&T (the checking account). On June 12, Mrs. Tamborine opened savings account No. 757208 -- 80 at the Midwest Bank & Trust Company in Chicago (the MB&T account).

Title to all four accounts was held by "Mary Tamborine or William Owens or Florence Rynn." Tamborine and Owens had signed the bank signature cards for all four accounts, but Rynn had signed only for CB&T account No. 87497 -- 4 and the MB&T account. Although Rynn had not signed the signature card for the checking account, CB&T paid checks that she drew on the account. The signature cards contained a survivorship agreement that bound the signing parties.

On February 21, 1987, Mrs. Tamborine suffered a stroke and was hospitalized until her death on March 15, 1987. On March 2, 1987, Owens withdrew the funds from the CB&T savings accounts and the MB&T account, a total of $296,627.30, and redeposited the money in two savings accounts at CB&T, held in his and his wife's name. On March 6, 1987, Rynn withdrew the funds from the checking account, approximately $11,300, by writing a check to herself.

On May 11, 1987, Rynn filed a verified complaint against Owens, alleging that Rynn and Owens were joint tenants in the accounts and that Owens had converted the funds. Rynn demanded half the funds from the three savings accounts. On June 24, 1987, Owens filed an answer, denying that Rynn had any interest in account No. 87496 -- 6. Owens also filed a counterclaim, alleging that Rynn had improperly withdrawn funds from the checking account and demanding the return of the $11,300.

On August 6, 1987, Rynn moved for summary judgment, arguing that she and Owens were in "equal status" as to the funds in the four accounts and asking the court to award her half the money from all four accounts. On September 11, 1987, Owens moved for summary judgment on the counterclaim, asking return of the money taken from the checking account. Owens also moved for partial summary judgment, arguing that Rynn was entitled to no money from savings account No. 87496 -- 6, and demanding return of the $11,300 that Rynn had withdrawn from the checking account.

On November 9, 1987, Rynn answered Owens' counterclaim and filed a verified amended complaint. The amended complaint was filed without leave of the court. Leave was later granted as part of the summary judgment order of December 17, 1987. The amended complaint alleged that Owens was only a joint custodian of the accounts, and therefore had no interest in the funds in any of the accounts, and that Owens had breached a fiduciary duty. Rynn asked for all of the money from all four accounts.

On November 10, 1987, Rynn took the evidentiary deposition of Father Joseph Christ. Father Christ stated that for many years he had been a friend and confidant of Mrs. Rynn and Mrs. Tamborine, that Mrs. Tamborine had told him that she wanted Mrs. Rynn to have all of her money, and that she had put the money in the accounts to prevent Mrs. Rynn's estranged husband from getting at the money. Father Christ further stated that Mrs. Tamborine had told him that Mr. Owens, who was executor of Mrs. Tamborine's will, was named on the accounts only as a trustee or guarantor and that Mrs. Tamborine did not intend for Mr. Owens to receive any of the money from the accounts. Father Christ's deposition ...


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