Appeal from the Circuit Court of Cook County05 L 1827 Honorable Henry R. Simmons, Jr.,Judge Presiding.
The opinion of the court was delivered by: Justice McBRIDE
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Garcia and Justice Cahill concurred in the judgment and opinion.
In February 2005, plaintiff filed a two-count complaint against
defendant Second Federal Savings and Loan Association for conversion
and breach of fiduciary duty. Plaintiff later amended his complaint to
include an additional count of breach-of-contract
third-party-beneficiary action. Plaintiff alleged that he was the
beneficiary of four accounts opened at Second Federal and that Second
Federal, without authorization, paid the proceeds of two of the
accounts to the third-party defendant Hector Gonzalez,*fn1
as the executor of the estate of Juana Gabriela Martinez.
Following a July 2010 bench trial on the breach-of-contract
third-party-beneficiary count, the trial court found in favor
plaintiff and awarded him $111,045.
Second Federal appeals, arguing that (1) the trial court erred in finding in favor of plaintiff because the evidence was insufficient to establish that plaintiff was the rightful beneficiary of two accounts at Second Federal; and (2) the trial court erred in awarding prejudgment interest when plaintiff did not request that relief in his complaint.
Plaintiff's first amended complaint alleged that he was the executor of the estate of Gaby Gonzalez (Gonzalez), his cousin. In October 1999, Gonzalez opened two accounts at the Archer Avenue branch of Second Federal, account number 008-07-9-001137-5 (375) and 008-07-9-001135-9 (359) (collectively, 1999 accounts). In November 2000, Gonzalez opened two more accounts with Second Federal at the Pulaski branch, account number 001-07-9001626-4 (264) and account number 001-07-9001627-2 (272) (collectively, 2000 accounts). When the four accounts were opened, Gonzalez designated her daughter, Juana Gabriela Martinez, as the beneficiary.
The complaint further alleged that on March 1, 2001, Gonzalez changed the beneficiary of all four accounts to plaintiff. On August 22, 2001, Gonzalez died from terminal cancer. On September 29, 2001, plaintiff closed the 2000 accounts and the proceeds were paid to plaintiff. Martinez died of terminal cancer on September 30, 2001.
On November 15, 2001, plaintiff requested Second Federal to draft a check to pay for Gonzalez's funeral costs from one of the 1999 accounts, specifically account number 375, which Second Federal issued. Later in 2001, plaintiff asked Second Federal to prepare a check to pay attorney fees associated with Gonzalez's estate and Second Federal again issued a check from account number 375, one of the 1999 accounts.
In December 2003, plaintiff sought to close the 1999 accounts, but Second Federal informed him that the accounts had been closed and the proceeds were paid to Hector Gonzalez, Martinez's boyfriend and no relation to plaintiff or Gonzalez.
Plaintiff's complaint alleged three counts against Second Federal: count I for conversion, count II for breach of fiduciary duty, and count III for breach of contract third-party-beneficiary action. Plaintiff sought $80,473.47, the proceeds of the 1999 accounts. In October 2009, the trial court dismissed the conversion count from plaintiff's complaint in its ruling on the parties' cross-motions for summary judgment. The court's written decision also indicated that plaintiff withdrew count II (breach of fiduciary duty) during the hearing on the motion for summary judgment. As for count III (breach of contract third-party beneficiary), the trial court found that a question of material fact existed and denied both parties' requests for summary judgment as to this count.
On July 29, 2010, a bench trial was conducted on plaintiff's breach-of-contract third-party-beneficiary claim. A new trial judge presided over the bench trial. The following evidence was presented at the trial.
Plaintiff testified with the aid of an interpreter. He stated that he resided in San Luis Potosi, Mexico. He testified that he was related to Gaby Gonzalez. They were cousins through their fathers. Gonzalez was also from Mexico, but she moved to Chicago in the 1970s. Plaintiff maintained contact with Gonzalez through visits and the telephone. He was also acquainted with Gonzalez's daughter, Juana Martinez. Plaintiff called Martinez "his niece."
Plaintiff stated that he was aware of Gonzalez's real estate. He said that she owned a building with a beauty salon, which Gonzalez operated.
Plaintiff learned in 1999 that Martinez had cancer. Later, in March 2001, plaintiff spoke with Gonzalez over the phone and was informed that Gonzalez had cancer. Gonzalez invited plaintiff to visit in June 2001 for a party in honor of Martinez's birthday. Plaintiff described Gonzalez's condition as "very delicate" and "frail." He said "she didn't look well." Plaintiff stated that he returned at the end of July and Gonzalez's condition was worse. When he came to Chicago at the beginning of August, Gonzalez was at a "cancer hospital" in Waukegan, but was transferred to Rush. Plaintiff testified that Gonzalez was released to go home when the doctors felt "that they had no more recourse."
Plaintiff stated that he had conversations with Gonzalez about her estate. She told him that her documents were kept in a bag in a bedroom closet. The documents included her will and certificates of deposit. Plaintiff testified that Gonzalez told him that he was to receive the documents. Gonzalez died on August 22, 2001. Plaintiff arranged the funeral.
Plaintiff identified four exhibits as the original certificates of deposit that Gonzalez left him. All four of the certificates indicated that "Gaby Gonzalez" was the account holder. The trustee language included a change. For the 1999 accounts, the trustee language stated, "GABY GONZALEZ AS TRUSTEE FOR: JUANA GABRIELA MARTINEZ," and beneath that it said, "RAFAEL GONZALEZ." For the 2000 accounts, the first line of the trustee language stated, "AS TRUSTEE FOR: JUANA GABRIELLA MARTINEZ," and beneath it a second line was added, "AS TRUSTEE FOR: RAFAEL GONZALEZ." Additionally, a line was typed at the top of each of the four certificates, stating: "REVISED BENEFICIARY 03/01/01 RC." The certificates for the 1999 accounts each listed an opening balance of $50,000, while the certificates for the 2000 accounts each listed an opening balance of $60,000.
Plaintiff stated that he cashed the certificates for the 2000 accounts in September 2001 at the Pulaski branch. He testified that he used the money for expenses for Martinez's funeral and the care of Gonzalez's stepmother, who lived in Mexico. Plaintiff presented the withdrawal slips for each of the accounts as an exhibit and it stated that $63,515.99, was withdrawn from each of the 2000 accounts, and included plaintiff's signature and the date of September 29, 2001. The 2000 accounts were then closed. Plaintiff testified that the bank employee did not look at any records or review any other documents before she gave plaintiff the check.
Plaintiff stated he returned to Second Federal on November 15, 2001. He sought a check to pay the funeral home. He said he took the certificates for the 1999 accounts, his identification, the "payment slip from the funeral," and Gonzalez's death certificate. He spoke with an employee and told her he wanted to issue a check to pay the funeral services because he did not have a checking account. He said she looked over the documents, went inside the bank, and then came back with a check. Plaintiff testified that no one indicated to him that there was a question whether he was the beneficiary of this account. He did not speak with any other employee of Second Federal. An exhibit was presented that showed a copy of a check for $9,606.48, payable to Fortuna Brothers, as well as a copy of the teller receipt indicating payment from account number 375 and plaintiff's signature.
Plaintiff testified that he returned to Second Federal on December 6, 2001, to obtain a check for attorney services on Gonzalez's estate. He said he brought the certificates, his identification, and the bill from the attorney. He spoke with an employee. She did not ask him any questions, but instead she looked at plaintiff's documents, went into the back of the bank, and came back with a check. A copy of the teller receipt with the account number and plaintiff's signature and a copy of the check, payable to Owens, Owens & Rinn, Ltd., in the amount of $22,526.50, were presented as exhibits. The teller receipt had a handwritten note, "Approved by Gigi," under the section for "Teller's I.D." ...