Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

09/09/97 ESTATE IRENE C. VOGEL v. ROBERT M. WINKLE

September 9, 1997

IN RE ESTATE OF IRENE C. VOGEL, DECEASED (MARTHA POZIOMBKA, INDEPENDENT ADM'R OF THE ESTATE OF ARTHUR G. VOGEL, PETITIONER-APPELLANT,
v.
ROBERT M. WINKLE, INDIV. AND AS EX'R OF THE ESTATE OF IRENE C. VOGEL, JANICE KELLOGG, AND MARILYN SCHLAMANN, RESPONDENTS-APPELLEES).



Appeal from the Circuit Court of Du Page County. No. 96--P--0143. Honorable Robert E. Byrne, Judge, Presiding.

Released for Publication October 9, 1997.

The Honorable Justice Rathje delivered the opinion of the court. Doyle and Thomas, JJ., concur.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

Petitioner, Martha Poziombka, is the independent administrator of Arthur G. Vogel's estate. Respondents, Robert M. Winkle, Janice Kellogg, and Marilyn Schlamann, are the children of Arthur's wife, Irene C. Vogel. Robert M. Winkle is also the executor of Irene's estate. Petitioner sued respondents to recover money that Irene withdrew from Arthur and Irene's joint bank accounts. The trial court granted respondents' motion to dismiss petitioner's complaint for failure to state a claim (see 735 ILCS 5/2--615 (West 1996)), and petitioner appealed. We affirm.

Initially, we note that respondents did not file a brief in this appeal. However, since we find the issue presented to be relatively straightforward, we will decide this appeal without respondents' brief, in accordance with First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493 (1976).

On February 20, 1996, petitioner filed a two-count complaint for the imposition of a constructive trust. The complaint contains the following allegations. Arthur and Irene Vogel established three joint bank accounts during their marriage. On June 16, 1994, Irene withdrew and gave to her daughter, Janice Kellogg, $90,984.10 from one of these accounts. Shortly thereafter, Irene withdrew for her own use $49,116.34 from the remaining two accounts. On July 17, 1994, Arthur died intestate. Irene died on October 25, 1995.

Based upon these facts, petitioner's complaint alleges two acts of wrongdoing. First, petitioner's complaint alleges that, when Irene withdrew the money from the joint accounts for her own use, she severed the joint tenancy and granted to Arthur an undivided interest in the money that he contributed to the joint accounts. Upon Arthur's death, that undivided interest passed not to Irene but to Arthur's estate. Thus, to the extent that respondents possess Arthur's share of the joint accounts, respondents possess money to which they have no right.

Second, petitioner's complaint alleges that, by withdrawing substantial sums of money from all three accounts for her own use, Irene breached a fiduciary duty owed to Arthur. Because Irene's initial withdrawal of the money was wrongful, respondents' retention of that money also is wrongful.

To remedy the alleged acts of wrongdoing, petitioner's complaint requests a declaration that, to the extent that respondents possess money that rightfully belongs to Arthur's estate, they possess that money as trustees for the benefit of Arthur's estate. In the alternative, petitioner requests a money judgment for no less than half of the money that Irene withdrew from the joint accounts.

Section 2--615 of the Code of Civil Procedure provides for dismissal if the complaint is "substantially insufficient in law." 735 ILCS 5/2--615 (West 1996). On review of a section 2--615 dismissal, we must determine whether the allegations of the complaint, when interpreted in a light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be granted. Brock v. Anderson Road Ass'n, 287 Ill. App. 3d 16, 20, 222 Ill. Dec. 451, 677 N.E.2d 985 (1997). For purposes of section 2--615 motions, all well-pleaded facts in the complaint are deemed admitted, and only the legal sufficiency of the complaint is at issue. Brock, 287 Ill. App. 3d at 21. The issue is one of law, and our review therefore is de novo. Brock, 287 Ill. App. 3d at 21.

Petitioner's complaint requests the imposition of a constructive trust for the benefit of Arthur's estate. A constructive trust is an equitable remedy imposed to rectify unjust enrichment. Kurtz v. Solomon, 275 Ill. App. 3d 643, 651, 212 Ill. Dec. 31, 656 N.E.2d 184 (1995). Some form of wrongdoing or unconscionable conduct is a prerequisite to the imposition of a constructive trust, and a court may not impose a constructive trust unless the complaint contains specific allegations of wrongdoing or unconscionable conduct. Kurtz, 275 Ill. App. 3d at 652. Furthermore, the grounds for imposing a constructive trust must be so clear, convincing, strong, and unequivocal as to lead to only one conclusion. Suttles v. Vogel, 126 Ill. 2d 186, 194, 127 Ill. Dec. 819, 533 N.E.2d 901 (1988). Generally, a court imposes a constructive trust to remedy (1) actual or constructive fraud; (2) the breach of a fiduciary duty; or (3) duress, coercion, or mistake. Suttles, 126 Ill. 2d at 193.

As discussed above, petitioner's complaint contains two allegations of wrongdoing. We will address the legal sufficiency of each of these allegations in turn.

First, petitioner's complaint alleges that respondents are in wrongful possession of the withdrawn money because, when Irene withdrew the money from the joint accounts, Arthur (and subsequently his estate) acquired an undivided interest in a portion of that money. In support of this allegation, petitioner relies upon the law of joint tenancy as applied to real property. The establishment and perpetuation of a joint tenancy in real property requires the unity of interest, title, time, and possession. Harms v. Sprague, 105 Ill. 2d 215, 220, 85 Ill. Dec. 331, 473 N.E.2d 930 (1984). By conveying his or her interest in the joint property to a third party without the consent of the other joint tenants, a joint tenant destroys the unities of title and interest. In re Estate of Martinek, 140 Ill. App. 3d 621, 629, 94 Ill. Dec. 939, 488 N.E.2d 1332 (1986). Once the unities of title and interest are destroyed, the joint tenancy is severed and the remaining tenants hold the property as tenants in common with the third party. Estate of Martinek, 140 Ill. App. 3d at 629. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.