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05/06/94 ESTATE RICHARD D. DIVINE v. PATRICIA

May 6, 1994

IN RE THE ESTATE OF RICHARD D. DIVINE, DECEASED, ALICE LYSTER, SR., ALICE LYSTER, JR., MARGIE REED, EDMUND LYSTER, AND SUSAN BLUMENFELD, PETITIONERS-APPELLANTS,
v.
PATRICIA GIANCOLA, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable Frank M. Siracusa, Judge Presiding.

Egan, McNAMARA, Rakowski

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

The petitioners, who are family members and legatees of the deceased Richard Divine (Richard), filed a petition for a citation of recovery against Patricia Giancola, alleging that Giancola wrongly obtained possession of money which was properly part of Richard'sestate. Giancola claimed the funds as the surviving joint tenant of two joint bank accounts. After a hearing, the trial Judge granted Giancola's motion to dismiss the petition. He held that Giancola was not a fiduciary to Richard as a matter of law and that the petitioners had failed to maintain their burden of proving undue influence over Richard on the part of Giancola. The petitioners maintain that Giancola was a fiduciary to Richard as a matter of law and that it was her burden to prove that the funds she received from Richard were not the result of a breach of a fiduciary obligation or of undue influence.

Beginning in approximately 1979, Giancola was employed in Chicago by attorney Samuel Poznanovich as a part-time secretary in his law office. Eventually, she became his full-time secretary. Giancola received a paralegal certificate from Roosevelt University in 1980, and took an H & R Block tax course in 1970. Poznanovich employed one other secretary in addition to Giancola.

In 1981, Richard and his wife, Lila, came to Poznanovich's office for income tax services. The Divines did not have any children and both were retired. Giancola estimated that they were in their "early seventies" in 1981. Giancola interviewed the Divines, took tax information from them such as W-2 forms and copies of their previous tax returns, and introduced them to Poznanovich. After this initial meeting, Poznanovich prepared the Divines' tax returns every year until 1986. Each year, Giancola would interview the Divines and gather their tax information. She never prepared their taxes, but simply gathered information for Poznanovich's use. In 1985, Poznanovich also represented Richard in a personal injury case. Giancola was not involved in that case. Additionally, Richard called Poznanovich occasionally for legal advice on other matters. Before 1986, Giancola and Poznanovich saw the Divines only at the law office, although, according to Poznanovich, the relationship became "more and more friendly" each year.

In December 1986, Lila died. Richard called Giancola at the office to tell her about Lila's death. Giancola stated that Richard had "depended on Lila for just about everything" and was very lonely without Lila. Also, he was "unable to do for himself." Giancola went to visit Richard in his apartment on Coles Avenue "within a day or two" of Lila's death. Richard was afraid to leave the apartment alone and could not walk long distances because "his legs were bad." Richard's relatives and Poznanovich also testified that Richard had physical problems with his legs. Giancola stated that for "the most part," Richard was confined to his apartment. After Giancola's first visit, Richard frequently called her and she visited his apartment once ortwice a week. Richard asked her to assist him in getting his groceries and other necessities. Richard gave Giancola money for the groceries and supplies. She testified that he did not give her a "fee" for her services, but admitted that sometimes he gave her "something for herself." He did his own cooking while living in the Coles Avenue apartment.

Giancola believed that the neighborhood around Coles Avenue was too dangerous for Richard, and she did not like going there to visit him. She suggested that he move to a safer area; she also mentioned to Poznanovich that Richard's neighborhood was unsafe. Poznanovich's office is located in a building he and his sister own. There are four residential apartments in that building which are rented by Poznanovich and his sister. Giancola occasionally takes the rent checks from tenants for Poznanovich. When an apartment became vacant in Poznanovich's building, Giancola told Richard it "would be easier" if he moved into that apartment. She did not know that Richard's relatives wanted him to move to Michigan City, Indiana.

Many of Richard's relatives, including Richard's sister, Alice Lyster (Alice), one of the petitioners, live in Michigan City, Indiana. Richard and Lila usually visited their relatives in Michigan City twice a year. Several family members testified that their relationship with Richard was good and that there was no "feuding" in the family. Before the apartment in Poznanovich's building became vacant, Poznanovich called Alice and asked her if Richard could live in Michigan City. According to Poznanovich, Richard wanted to live with his sister in her house. Richard's relatives invited Poznanovich and Richard to Indiana. Poznanovich and Richard believed that they were visiting Michigan City to arrange for Richard to move into Alice's house.

One of Richard's nephews by marriage, Dennis Blumenfeld, and another nephew, Ted Lyster (Ted), a petitioner, testified that in early 1987 they located an apartment in Michigan City approximately one mile from Alice's house. Blumenfeld is married to Susan Blumenfeld, another niece and another petitioner. Ted and Blumenfeld paid a deposit to hold the apartment for Richard. In June, 1987, Poznanovich drove Richard to Michigan City to view this apartment. Poznanovich explained that Richard did not enter the apartment, but stood outside and said that it was a nice, clean apartment and he "would let the family know" if he wanted to move there. Ted testified that the apartment "seemed to be agreeable" to Richard.

After viewing the apartment, Ted, Richard and Poznanovich went to Alice's house. Poznanovich testified that Richard asked to livewith Alice, but Alice told him he could not live with her because "she had her own social obligations; she had bingo [and other activities.]" Alice did not testify. Ted did not remember whether Richard asked to live with Alice. As far as Ted knew, Alice never offered Richard the option of living in her house. During the drive back to Chicago, Richard told Poznanovich that if he could not live with his sister, he did not want to move from Chicago.

Approximately two weeks after they visited Michigan City, the apartment opened in Poznanovich's building. Richard then told Poznanovich that he wanted to live in Poznanovich's building. Richard moved into the building in June or July, 1987. Giancola and Poznanovich helped him move. He paid rent of $300 per month to Poznanovich, sometimes giving Giancola his rent check. Richard did not socialize with other people and usually did not leave the apartment. Poznanovich testified that in 1987 Richard was not capable of living alone in an apartment without some assistance, although he did his own cleaning. According to Poznanovich, Richard "needed [to be] taken care of." Giancola continued to buy his groceries and supplies, apparently during weekday working hours. She testified that Richard continued to give her money for the groceries and to occasionally give her "something for herself." Poznanovich testified that in 1987 Richard trusted Giancola and "she took care of him." Giancola considered herself Richard's friend.

Sometime after Richard moved, Poznanovich shut off the gas to his stove, although the rent included all utilities. Giancola could not remember exactly when the gas was stopped, and Poznanovich was not asked when he turned off the stove. Poznanovich testified that Richard had forgotten a pan on the stove and started a small fire. Therefore, he believed it was dangerous for Richard to have a working stove. Giancola explained that Richard "let a pan burn." When asked if Richard was "getting forgetful" at the time the stove was turned off, Giancola testified that she "guessed so." After the stove was disconnected, Giancola began cooking Richard's meals and bringing him hot food. Without the stove, "it was impossible" for Richard to cook his own food.

There was additional testimony about Richard's physical and mental condition at the hearing. Giancola explained that Richard's vision was deteriorating while she knew him but that he still could read his checks and bills. Blumenfeld testified that Richard could not see well even while Lila was alive. However, Ted testified that Richard could see "fairly well." Regarding Richard's mental health, Giancola admitted that "a time or two" when Richard lived in Poznanovich's building, Richard wandered out of the building andwas brought home by the police. Neither Poznanovich nor Giancola testified when these events occurred. Blumenfeld stated that, at ...


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