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12/29/89 Edith Matthews, Guardian v. Jay Dorn

December 29, 1989

SWAIM MATTHEWS, A DISABLED PERSON, PLAINTIFF-APPELLANT

v.

JAY DORN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

EDITH MATTHEWS, Guardian of the Estate and Person of Inez

549 N.E.2d 892, 192 Ill. App. 3d 1051, 140 Ill. Dec. 241 1989.IL.2053

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.

APPELLATE Judges:

JUSTICE COCCIA delivered the opinion of the court. MURRAY, P.J., and LORENZ, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE COCCIA

Plaintiff, guardian Edith Matthews, brought this action to declare a constructive trust for the benefit of Inez Swaim Matthews, a disabled person. At the close of plaintiff's case the court granted defendant Jay Dorn's motion for a directed finding. On appeal plaintiff claims that the court erred in failing to impose a constructive trust.

The first witness at trial was Cynthia Farenga, who was appointed guardian ad litem of the estate of Inez Matthews in January 1986. She first saw Inez at Northwestern Community Hospital in Arlington Heights, where Inez had been hospitalized for hip pain. At that time Inez knew her own and her late husband's names and her date of birth, but she could not recall anyone else's name. She remembered selling her home, but recalled none of the terms of sale except that she told Farenga that defendant "moved in and took over." At the Conclusion of her interview Farenga determined that Inez needed a guardian.

Defendant was called as an adverse witness and testified that he was introduced to Inez by his father in 1979, and that he moved into Inez's home at 6250 Gaynelle Road in Tinley Park, Illinois, as a tenant. He offered to pay rent, but Inez refused and requested that he perform chores and household repairs for her instead. Inez had a slight limp at the time and used a cane. Defendant testified that Inez seemed "fine mentally" to him. She continued to drive her 1976 station wagon and did her own shopping, but he went to the store for her on a weekly basis. Defendant testified that by 1984 she was not driving as much and at some point stopped driving, that he then bought her automobile for $2,000 in cash, had the title transferred, and then did all the shopping.

Defendant further testified that Inez's sister-in-law Edith visited her approximately three times per year. Defendant and Inez discussed his purchase of her home in 1984. Inez told defendant that she had helped Edith previously and wanted defendant to have the house. After she mentioned it several times, defendant contacted attorney James Ebersohl in 1984. In the summer of 1985, because Inez had been insistent, he obtained a form contract and filled it out. He gave the contract to Ebersohl and went to the Tinley Park Bank to apply for a loan. After the bank advised him that Inez should be represented by counsel, he contacted attorney Richard Wojnarowski and asked him to call Inez. Wojnarowski came to the house and spent time with Inez before drafting an agreement between her and defendant. Wojnarowski came again with defendant's attorney on the day of closing. During this period Inez continued to experience pain in her hip and used a cane but not a walker.

On cross-examination defendant testified that he filled out checks for Inez in 1984 and 1985 but she never signed them in blank. Defendant admitted that two checks for utilities and hardware were prepared by him and signed by Inez after title to the house had been transferred to him. Defendant could not explain a check dated January 1, 1986, nor did he know where the bank statements were for November and December 1985 and January 1986. Inez left the house in December 1985.

Edith Matthews testified that she had been appointed Inez's guardian following Inez's hospitalization. She first met defendant after he moved into Inez's home a year after her brother, Inez's husband, died. According to Edith, Inez had fallen at work before she had retired and suffered thereafter from hip pain. Inez had relied completely on Edith's brother while he lived, but Edith helped her obtain a driver's license after his death. During the next few years it became harder for Inez to get around, and she used a walker outdoors. Edith regularly telephoned Inez several times a week and visited her twice a month. Often Edith would come and stay or bring Inez back to Edith's home in Buffalo Grove for a visit. After defendant moved in, Inez relied mainly on defendant and stayed home and watched television. When Edith visited Inez, defendant was usually not present, but the house was neat.

Edith testified that Inez's mental condition deteriorated in 1985 and that Inez only recalled people who were close to her. In the spring of 1985 the house was put into a land trust to which Edith and defendant were beneficiaries in the event of Inez's death, but Inez had complete control over the house. In the autumn of 1985 Edith asked Inez if she knew she had "signed the house over." Edith also testified that she had to rewrite a check completely at that time because Inez could not do it.

Edith further testified that Inez's condition had continued to deteriorate during the last year and that Inez had been on public aid for two years. Edith testified that she did not believe ...


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