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In re Estate of Romanowski

March 29, 2002

IN RE ESTATE OF GENEVIEVE ROMANOWSKI, DECEASED.


The opinion of the court was delivered by: Justice Quinn.

UNPUBLISHED

Appeal from the Circuit Court of Cook County, Probate Division Honorable Jeffrey A. Malak, Judge Presiding.

Before she died, Genevieve Romanowski gave her daughter Evelyn Wall power of attorney in a statutory short form power of attorney. Evelyn, acting in that capacity, deeded a piece of commercial property into trust, designating Genevieve beneficiary of that trust, and herself and her daughter, Eileen Wall, as the contingent beneficiaries. When Genevieve died, the property was sold with Evelyn and Eileen retaining the proceeds of the sale. Edward, Genevieve's son, filed a petition for letters of administration which was granted over objection. The estate filed a motion for summary determination of major issues of respondent's liability on petition to recover property. The trial court found in favor of the estate, ordering Evelyn and Eileen (the Walls) to turn over all of the proceeds from the sale to the estate. The Walls now timely appeal from that order. No questions are raised on the pleadings.

On appeal, the Walls argue that: (1) the trial court erred in finding there existed no genuine issue of material fact in dispute; (2) the trial court erred in finding Evelyn Wall acted beyond the scope of the power of attorney; and (3) the trial court erred in declaring void the designation of Evelyn and Eileen Wall as contingent beneficiaries. For the reasons that follow, we affirm.

I. STATEMENT OF FACTS

On January 10, 1993, Genevieve Romanowski executed a statutory short form power of attorney designating her daughter, Evelyn Wall, as her agent for property matters. The statutory short form power of attorney was signed by both Genevieve and Evelyn. No specific limitations or expansions were designated by Genevieve in the spaces provided on the form.

Genevieve owned various assets, one of which included a rent-producing, multiple-unit, residential and commercial building in Chicago. On March 25, 1993, Evelyn, acting under the power of attorney, executed a land trust agreement, creating trust No. 3189, with the First National Bank of LaGrange. Evelyn executed a deed in trust, conveying the building into the trust. Evelyn designated Genevieve as the beneficiary of the land trust and designated herself and her daughter, Eileen Wall, as the only contingent beneficiaries upon the death of Genevieve.

On May 13, 1997, Genevieve died leaving no will. Genevieve was survived by her four children, Edward Romanowski, John Romanowski, Nancy Scymczak and Evelyn Wall. On September 29, 1998, Evelyn directed the trust to sell the building. As the trust's purported contingent beneficiaries, Evelyn and Eileen received and retained the proceeds from the building sale. The proceeds totaled $569,722.64.

On January 11, 1999, Edward filed a petition for letters of administration. Evelyn filed a cross-petition for letters of administration, asserting that she sold the building and retained the proceeds in accordance with the power of attorney and, therefore, no letters should be issued because there were no debts or property to administer. On January 29, 1999, the trial court granted Edward's petition and letters of administration were issued.

On February 16, 1999, as independent administrator of Genevieve's estate, Edward filed a petition for citations for recovery of property. The petition requested that Evelyn turn over the proceeds from the sale of the building. In August of 1999, the trial court preliminarily enjoined Evelyn from transferring or dissipating the funds from the sale. On October 4, 1999, Evelyn filed a responsive pleading to the petition. On May 10, 2000, the estate then filed a motion for summary determination of the major issue of respondent's liability on the petition to recover property.

On August 9, 2000, the motion for summary determination proceeded to hearing. The trial court found that Evelyn exceeded the scope of her agency authority. The court found that Evelyn did not have the authority to designate herself and Eileen as contingent beneficiaries of the trust and, therefore, declared the designation void. The court ordered that the proceeds of the sale of the building were property of the estate. Evelyn now timely appeals.

II. ANALYSIS

Summary judgment is proper when the pleadings, depositions, admissions on file and any affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998). The interpretation of a formal power of attorney and the effect of relevant statutory provisions on the powers granted the agent named therein are questions of law that are appropriately decided on a motion for summary judgment. Wirtz Realty Corp. v. Freund, 308 Ill. App. 3d 866, 873, 721 N.E.2d 589 (1999). The standard of review on a summary judgment ruling involving statutory interpretation is de novo. King v. Industrial Comm'n, 189 Ill. 2d 167, 171, 724 N.E.2d 896 (2000).

Evelyn argues that the trial court erred in finding that there existed no genuine issue of material fact in dispute. Specifically, Evelyn maintains that the intent of Genevieve with regard to the building was a disputed issue of material fact. Evelyn argues in her brief that the "repeated implications contained in the motion for summary determination as to what Genevieve wanted to accomplish, versus what she allegedly did accomplish by executing the Power of Attorney, go to Genevieve's intent, which is a genuine issue of material fact in dispute between the parties."

For the purposes of appeal, this argument is waived. A party claiming he has not been given the opportunity to prove his case must provide a reviewing court with an adequate offer of proof as to what the excluded evidence would have been. Chicago Park District v. Richardson, 220 Ill. App. 3d 696, 701, 581 N.E.2d 97 (1991). The purpose of an offer of proof is to disclose the nature of the offered evidence for the information of the trial judge and opposing counsel, and to allow the reviewing court to determine whether exclusion was erroneous and harmful. Wright v. Stokes, 167 Ill. App. 3d 887, 522 N.E.2d 308 (1988). "To be adequate, an offer of proof must apprise the trial court of what the offered evidence is or what the expected testimony will be, by whom it will be presented and its purpose." Chicago Park District v. Richardson, 220 Ill. App. 3d at 701. In the absence of an offer of proof, the issue of whether evidence was improperly excluded will be deemed waived. Tarshes v. Lake Shore Harley Davidson, 171 Ill. App. 3d 143, 524 N.E.2d 1136 (1988).

In this case, Evelyn is essentially complaining that she was not allowed to prove her case where the trial court prevented her from introducing evidence as to Genevieve's intent. This argument is not persuasive where Evelyn failed to file a verified answer to the motion for summary determination on the petition to recover property. Although Evelyn had generally argued in her pleadings that Genevieve intended to name Evelyn and Eileen as contingent beneficiaries, she did not file an affidavit or offer of proof as to the evidence from which that intent could be ascertained. In fact, the only evidence introduced to support this assertion was Evelyn's statement in a responsive pleading that the trust officer at the bank contacted Genevieve and confirmed that she did wish to have the trust established and to have Evelyn and Eileen named contingent beneficiaries. However, Evelyn never tendered an affidavit of the officer attesting to such or sought to call him as a witness to make an offer of proof. By failing to make adequate offers of proof on this issue, Evelyn cannot complain that the trial court erred in failing to admit evidence. Based on the record before us, we can only speculate whether Evelyn was prejudiced by the failure to admit evidence of Genevieve's intent, and therefore Evelyn's argument is waived.

Even were the argument not deemed waived, the trial court did not commit reversible error in granting the motion for summary determination. A written power of attorney must be strictly construed so as to reflect the "clear and obvious intent of the parties." Amcore Bank N.A. v. Hahnaman-Albrecht, Inc., 326 Ill. App. 3d 126, 135, 759 N.E.2d 174, 182 (2001), quoting Fort Dearborn Life Insurance, Co. v. Holcomb, 316 Ill. App. 3d 485, 499 (2000). In the case at bar, Genevieve ...


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