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Leah Weisberger v. Suzanne Weisberger

June 17, 2011

LEAH WEISBERGER,
PLAINTIFF-APPELLEE,
v.
SUZANNE WEISBERGER, INDIVIDUALLY AND AS TRUSTEE OF THE AMENDED AND RESTATED JACOB BROTMAN M.D. DECLARATION OF TRUST, AND BROTMAN FAMILY TRUST, JACOB BROTMAN, M.D., GRANTOR, DEFENDANTS WILLIAM WEISBERGER,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County 08 CH 025989 Honorable Richard J. Billik, Jr., Judge Presiding.

The opinion of the court was delivered by: Justice Robert E. Gordon

OPINION

JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. JUSTICES CAHILL and McBRIDE concurred in the judgment and opinion. Plaintiff Leah Weisberger, age 29, filed a four-count amended complaint against her mother and father, Suzanne and William Weisberger.

Counts I through III of the amended complaint concerned two trusts set up by Leah's grandfather, Jacob Brotman, which named Leah as the beneficiary and Suzanne as the trustee. Suzanne is not a party in this appeal and counts I through III are not at issue on appeal.

Count IV, which is at issue on appeal, alleges a conversion claim against her father, William, involving his alleged unauthorized withdrawal of funds from a living trust that she executed in which she was named as sole trustee and sole beneficiary.

As to count IV, the trial court granted Leah's motion for summary judgment pursuant to section 2-1005 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2008)), finding, inter alia, that there was no factual dispute that William was not a trustee or beneficiary of the living trust Leah executed, that William removed funds in the trust without Leah's authorization, and that Leah demanded return of the funds, but William refused. The trial court ordered William to deposit the funds that he withdrew from the trust bank account with the clerk of the court, and William refused to do so.

After William failed to deposit the funds with the clerk of the court, the trial court entered sanctions against William in the form of a monetary judgment in the amount of the funds withdrawn from the trust. William appealed.

On appeal, William claims that the trial court erred in granting summary judgment in favor of Leah on count IV. William argues that "the source and ownership of the funds" held in Leah's living trust created a genuine issue of material fact that precluded summary judgment. We reject this claim, and we affirm the trial court's grant of summary judgment.

I. BACKGROUND

A. Complaint

On April 3, 2009, Leah filed a four-count "First Amended Verified Complaint for Specific Performance, Removal of Trustee, Accounting, and Conversion" (amended complaint), which alleges as follows: On July 6, 2001, Leah executed a living trust, titled "Leah Weisberger Living Trust" (Leah's living trust). Leah is the settlor of the trust and she named herself sole beneficiary and sole trustee with the power to "distribute property in cash or in kind."

Concerning successor trustees, the trust agreement stated: "When I cease to act as trustee, my mother SUZANNE WEISBERGER shall be trustee. Should my mother SUZANNE WEISBERGER cease to act as trustee, my father WILLIAM WEISBERGER shall be trustee."

In count IV of her amended complaint, Leah alleges a conversion claim against her father, William, individually, involving William's unauthorized withdrawal of all the funds held in her living trust. According to the amended complaint, Leah's living trust held its assets in Harris Bank money market account No. 850212466 and Harris Bank certificate of deposit No. 6900141872 (collectively, the Harris accounts).

The Harris accounts are each titled "Leah Weisberger Living Trust," with her social security number, and designate Leah and William as "trustees" on the accounts. William was a signatory on the Harris accounts and that is how he removed the funds. Leah alleges in her complaint that: "William was named as a joint owner of [Harris accounts] with Leah for convenience purposes."

Exhibits attached to the amended complaint included a notice of maturity for the certificate of deposit, a deposit statement, and a certificate of deposit renewal application. Those exhibits showed that on December 27, 2007, an unspecified amount of money from the Harris money market account was deposited into the Harris certificate of deposit, which had a maturity date of six months, or June 27, 2007. On that date, the Harris certificate of deposit matured and had a balance of $92,220.72. Also on that date, Leah withdrew $35,000 from the certificate of deposit and deposited it into the Harris money market account. Leah then renewed the Harris certificate of deposit with a remaining amount of $57,220.72.

The amended complaint alleges that prior to July 1, 2008, a family dispute arose after Suzanne and William, who are of the orthodox Jewish faith, discovered that Leah was dating a non-Jewish man. According to the amended complaint, Suzanne and William did not approve of the relationship and ceased to communicate with Leah.

B. William's Discovery Deposition

On May 27, 2009, William testified in a discovery deposition and claimed that the Harris money market account that funded her trust was an account that he had opened and that it contained only his funds.*fn1 William further testified as follows:

"The reason I also opened that [Harris money market] account, originally, because I wanted Leah to have credit, you know, credit cards when she was still single and living with us. *** I wanted her to have checking with it. Once she got married, I said to her, 'Forget it.' I left the money [in the Harris money market account], that was my money.

Q. When was the [Harris money market] account first titled 'The Leah Weisberger Living Trust'?

A. I believe we did it afterwards, when she got -- I don't know, divorced or separated from her husband, whenever it was, you know, then we titled it that way, the living trust.

Q. So, the money at the Harris Bank account was created after Leah was divorced?

A. No. In that account there was money already to begin with, from the beginning.

Q. What account?

A. Which is the living trust account. There was money ...


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