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August 1, 1994


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

Released for Publication September 13, 1994.

Manning, Buckley, O'connor, Jr.

The opinion of the court was delivered by: Manning

JUSTICE MANNING delivered the opinion of the court:

Plaintiff George LaCasse, as executor of the estate of Dorothy LaCasse, appeals from a judgment of the trial court, wherein the court entered a judgment of $12,000 against codefendant Beverly Archibald, and in favor of plaintiff. George also appeals from the trial court's entry of a directed verdict in favor of codefendant Downtown Lock Box Partnership.

On appeal plaintiff argues that: (1) the court erred in denying his motion for a new trial; (2) the court erred in barring plaintiff's expert witness testimony; (3) the trial court erred in entering a directed verdict in favor of Lock Box; (4) the trial court's award of only a $12,000 judgment was against the manifest weight of the evidence; (5) the court lacked jurisdiction to enter a money judgment in favor of the executor individually and against a co-beneficiary of the estate; and (6) the court erred in its determination that no conversion had occurred. We reverse and remand.

On September 24, 1986, decedent Dorothy LaCasse, mother of George LaCasse and Beverly LaCasse-Archibald, died in Cook County Illinois, leaving a will in which plaintiff George and codefendant Beverly were named as co-executors and heirs to the estate. Plaintiff testified that on the afternoon of decedent's funeral, he talked with codefendant Beverly about disposal of the items in the estate and the two agreed to dispose of the items one at a time. Plaintiff testified that Beverly told him to look for storage centers that were close to her apartment, which he did. Plaintiff stated that Beverly chose the storage facility, Lock Box Storage, and that he went to the facility to examine it--reviewing security. The two also talked about the division of the furniture.

As part of his duties as representative, plaintiff prepared aninventory list of the contents of decedent's home based upon many sources, including an appraiser named Betty Kolpas. He used this information to determine the value of personal property. He testified that Kolpas came to decedent's home in October 1986 and took pictures of various items, and that the final inventory list was prepared in spring of 1988. Plaintiff testified that he took possession of several of the items on the inventory list (numbers 1-76), while items number 77 through 172 were taken by codefendant Beverly. He eventually placed the items in his possession at Lock Box storage facility. Plaintiff valued the items in his possession at Lock Box to be worth $30,000. He derived this figure after talking with Sotheby's, an auction house in New York city, consulting antique dealers, and talking with friends. He valued the remaining items under Beverly's control to be worth $90,000. Plaintiff stated that he helped Beverly move the chest-of-drawers and a dresser, foot stools, china and other items to her apartment.

Plaintiff testified that Beverly never signed the contract with Lock Box, and that he paid the first month's rent. Plaintiff left Chicago in early December 1986 and returned to Florida. Before he left town, he placed a padlock on the door of the Lock Box storage facility. His plans were to sell the furniture at an auction house. He contacted Sotheby's in New York and found what its rates were.

Plaintiff stated Beverly removed items from decedent's home on three separate occasions. Some of the items that were taken by Beverly included bric-a-brac china, pewter collection, porcelain balls and vases, a highboy chair and dresser. Plaintiff testified that six of the 172 items in the inventory were included in an appraisal prepared by Alice G. Kaide. Plaintiff testified that the total value of the items removed from decedent's home by codefendant Beverly was $90,000. He stated that the pictures taken by Kolpas and admitted into evidence represented the items in his possession as of October 1986. Plaintiff estimated that the total value of the estate was $120,000. He arrived at this value by reviewing certain envelopes containing figures, consulting with Sotheby's, a company in New York, talking with Betty Kolpas and antique dealers in Florida where he resided.

In December 1986, plaintiff, at the recommendation of Beverly, entered into a lease agreement with codefendant Downtown Lock Box for storage of the personal items in his possession. The month-to-month lease amount was $89. The pertinent terms of the agreement provided that:

"Lessee shall pay his rent to the Lessor, at the above address, in advance of the first day of each calendar month he wishes the lease to remain in effect. Lessor does not bill." * * * Either party mayproperly terminate this lease as of the last day of the month by serving the other with a written notice of their intention to terminate at least 20 days prior to the last day of the then current rental month."

The lease also provided that:

"If Lessee breaches this contract in any manner he give Lessor a security interest in the personal property he has stored at the facility and the right to sell or dispose of the property as he sees fit and apply the proceeds to any unpaid balances after notice of such impending action is given to Lessee."

About May 19, 1988, codefendant Lock Box sent a notice by certified mail to plaintiff advising him that the storage payments were past due for the months of March, April and May of 1988 in the amount of $374. Lock Box also advised plaintiff that it planned to terminate the lease if the arrearages were not paid within 30 days. The notice stated that:

"This Notice Shall Be In Lieu of Any Other Notice Which Might Be Required By Law."

Plaintiff testified that in response to the letter received from Lock Box, he sent a payment of $374 to Lock Box by certified mail. He received the return green card on June 16, 1988. About July 22, 1988, plaintiff reviewed his cancelled checks with his wife and noticed that the check to Lock Box was not included. He stated that he then called Mr. Perry at Lock Box and questioned him about the check. Plaintiff testified that Perry advised him that the check had not been received. Plaintiff told Perry that he would send another check; however, Perry advised plaintiff ...

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