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CLANCY v. COYNE

October 10, 2002

DEANN P. CLANCY, PLAINTIFF,
V.
ROBERT LEO COYNE, DEFENDANT



The opinion of the court was delivered by: St. Eve, District Judge

MEMORANDUM OPINION AND ORDER

Defendant Robert Leo Coyne has previously admitted liability in misappropriating and commingling assets in a Trust for which Plaintiff Deann P. Clancy was a beneficiary and Coyne was trustee. Plaintiff Clancy has filed a summary judgment motion seeking to have judgment entered on the amount of damages that Coyne owes. For the reasons stated herein, Clancy's summary judgment motion is granted. Clancy's previously filed motions in limine are dismissed as moot.

BACKGROUND

Plaintiff Deann P. Clancy is a citizen of the State of Pennsylvania and is a beneficiary of the Ruth S. Bergquist and George O. Bergquist Trust (the "Trust"). (R. 17-1, Pl. Statement of Undisputed Facts ¶ 1.) Defendant Robert Leo Coyne was, at the time of the filing of his answer, practicing law in Wilmette, Illinois.*fn1 (Id. ¶ 2.) Coyne drafted the Trust in the Fall of 1995. Initially, the Bergquists were trustees and Coyne was successor trustee. (Id. ¶ 4.) Ruth Bergquist passed away in 1996. (Id. ¶ 5.) Sometime before February 1997, Coyne became trustee and attorney-in-fact for George Bergquist. (Id. ¶ 6.) George Bergquist died on February 5, 2001. (Id. ¶ 5.) Coyne wound up serving as the trustee from February 1997 through October 2001, when he was removed from his duties by Judge Coar. (Id. ¶ 3.)

Clancy filed a lawsuit against Coyne on July 23, 2001. Count I stated an action for an accounting of the Trust, Count II alleged that Coyne breached his fiduciary duty as trustee and Count Ill claimed that Coyne converted Trust assets. (R. 1.1, Compl. ¶ 28-36.) Judge Coar entered judgment against Coyne on Count I of the Complaint, ordering an accounting. (R. 7-1, Oct. 9, 2001 Order.) In November 2001, Coyne consented to liability on Counts II and III of the complaint. (R. 8-1, Am. Consent to Entry of J.) Judge Coar subsequently entered judgment on those counts. (R. 9-1, Nov. 9, 2001 Order.) The only issue pending before this Court is the amount of monetary damages to award to Plaintiff.

In attempting to comply with Judge Coar's order requiring an accounting, Coyne engaged Mr. Charles Queenan, a bookkeeper. (R. 17-1, Pl. Statement of Undisputed Facts ¶ 15.) Queenan prepared a schedule of certain financial transactions relating to the Trust, but could not identify many of the deposits or expenses attributed to the Trust. (Id. ¶ 17.) Queenan has no personal knowledge of the underlying transactions made in connection with the Trust. (Id. ¶ 18.) Queenan based his financial summary, in part, on documents provided to him by Coyne. (Id.) Queenan never had an accurate initial inventory of the Trust assets upon which to base his summary. (Id.) Queenan's schedule was intended to be a recapitulation of information that he was given by others, rather than an independent audit. (Id. ¶ 19.)

Queenan testified that there were, at a minimum, $483,974.96 in assets in the Trust during the time that Coyne served as trustee. (R. 17-1, Pl. Statement of Undisputed Facts ¶ 21.) Out of this total, Queenan could identify $214,161.85 worth of purported Trust expenses. (R. 40-1, Def.'s Statement of Additional Material Facts ¶ 9.) Coyne could not account for the remaining $269,813.11. (Id. ¶ 10.) Some of these purported expenses were for services that Coyne claimed to have rendered. For example, the Trust directly paid Coyne $58,889.98. (R. 17-1, Pl. Statement of Undisputed Facts ¶ 22.) In his accounting, however, Queenan could only find $30,966 worth of invoices for Coyne's services. (Id.)

In addition to the Trust, Coyne managed a commingled client funds account that contained $52,161.24 in assets that may have been attributable to the Trust. (R. 17-1, Pl. Statement of Undisputed Facts ¶ 23.) Queenan was unable to determine whether the client funds account should have been considered part of the Trust's assets. (Id.)

On May 24, 2002, Coyne asserted his Fifth Amendment privilege and refused to testify to any substantive questions at his deposition:

I hereby represent that I will, and hereby do, exercise my Fifth Amendment privilege regarding all questions, except for my name, asked of me at my deposition noticed for 9:30 a.m., May 24, 2002, at the law firm of Donald C. Clark, Jr., One South Wacker Drive, Suite 1495, Chicago, Illinois said deposition pertaining to the above captioned lawsuit.

(R. 16-1, Aff. of Coyne.). Coyne has never waived his Fifth Amendment rights. In drafting a Final Pretrial Order, however, Coyne named himself as a "witness who may be called by Defendant." (Final Pretrial Order, Ex. D.)

ANALYSIS

Clancy filed a summary judgment motion on the issue of damages. In the Motion, Clancy seeks to have judgment entered for $536,136.20. This amount represents the minimum assets of the Trust while Coyne was trustee, plus the commingled client funds account, with no ...


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