GARY VICIAN and GALE VICIAN, Assignees of Edward Vician and Dolores Vician, Plaintiffs-Appellees,
GREGORY L. VICIAN and MICHELLE VICIAN, Defendants-Appellants.
from the Circuit Court of McHenry County. No. 14-LA-127
Honorable Thomas A. Meyer, Judge, Presiding.
JUSTICE McLAREN delivered the judgment of the court, with
opinion. Justices Hudson and Birkett concurred in the
judgment and opinion.
1 Plaintiffs, Gary Vician and Gale Vician, assignees of
Dolores Vician and Edward Vician on a promissory note, filed
a complaint against defendants, Gregory L. Vician and
Michelle Vician. After a bench trial, the trial court awarded
plaintiffs $257, 586.12 on the note and $51,
014.78 in attorney fees. Defendants appeal, arguing
that: (1) the trial court abused its discretion when it
arbitrarily disregarded evidence in favor of defendants; (2)
the trial court erred by denying their motion for a directed
finding; and (3) the trial court erred by awarding attorney
fees. For the following reasons, we affirm.
2 I. BACKGROUND
3 Dolores and Edward are the parents of Gary, Gale, and
Gregory, who is married to Michelle.
4 A. Complaint
5 On April 30, 2014, plaintiffs filed a "Complaint on
Promissory Note" against defendants, alleging the
following. Dolores and Edward loaned defendants $357,
586.12, and, in consideration for the loan, defendants
signed a promissory note executed on October 1, 2009, and
delivered, for value received. Defendants "agreed to pay
such Promissory Note under the terms set out therein."
On August 1, 2012, Dolores and Edward assigned the promissory
note to plaintiffs, "for consideration." Defendants
defaulted in payments owed on the promissory note and refused
to cure the default after a demand was made. The default
existed for more than one year. Plaintiffs sought principal,
interest, attorney fees, and costs. ¶ 6 The promissory
note, attached to the complaint, provides:
"1. BORROWER'S PROMISE TO PAY
In return for a loan that I have received, I promise to pay
U.S. $357, 586.12 (this amount is called
'Principal'), plus interest, to the order of the
Lender. The Lender is [sic] Edward S. Vician and
Dolores M. Vician. I will make all payments under this Note
in the form of cash, check or money order. $100, 000 of
Principal Balance is waived if Note is PAID AS AGREED.
I understand that the Lender may transfer this Note."
promissory note contains two signature lines. Defendants'
names appear under the signature lines, followed by the word
"Borrower." Signatures appear above the signature
7 B. Bench Trial
8 A bench trial was held on November 30, 2015. Dolores
testified as follows. In 1996 Dolores and Edward loaned
Gregory $125, 000, as evidenced by a 1996 mortgage signed by
Gregory and notarized. Dolores and Edward delivered the $125,
000 to Gregory. In addition, Dolores and Edward made two
loans to Gregory and Michelle: a loan for an undetermined
amount and, in November 2006, a loan for $130, 000.
9 Dolores further testified that on July 27, 2009, she and
Edward loaned Gregory and Michelle $363, 406.75, as
evidenced by a mortgage signed by Gregory and Michelle and
notarized by Jan Risch. On October 1, 2009, a promissory note
was signed by defendants in the presence of Dolores. The
promissory note was for a principal balance of $357,
586.12, reduced due to payments that Gregory had made on
the July 27, 2009, loan and a lower interest rate. Dolores
created and kept a loan amortization schedule, and on this
schedule and on a separate ledger she recorded and gave
credit for all payments made by Gregory and Michelle. To make
payments on the loan, Gregory or Michelle deposited money
into a Harris Bank account titled in Gregory's and
Gale's names. The Harris Bank account statements were
mailed to the home of Dolores and Edward. Dolores used the
monthly statements to keep track of Gregory and
Michelle's payments. These statements contain account
activity from May 23, 2008, through August 22, 2011, and were
admitted into evidence as plaintiffs' exhibit No. 15.
10 Dolores also testified as follows. The Harris Bank
statements indicated that Gregory withdrew $16,
908.71 from the account on August 3, 2011. From
September 2011 through March 2012, Gregory made payments on
the loan by mailing checks to his parents' home. Dolores
deposited the checks and recorded the payments on her ledger
and loan amortization schedule. After March 2012, neither
Gregory nor Michelle made any payments on the loan. The
$16, 908.71 that was withdrawn was never replaced.
Because of Gregory's withdrawal, the principal amount
owed on the promissory note was the original amount,
$357, 586.12. Dolores was willing to waive her right
to interest on the promissory note from October 2009 to the
date of judgment, but she was not willing to waive her right
to postjudgment interest. Dolores testified that she and
Edward assigned the promissory note to Gary and Gale.
11 Gale testified as follows. Gale recognized Gregory's
signature on the promissory note. Dolores and Edward assigned
the promissory note to Gale and Gary for $10. Gale identified
the written assignment and recognized her signature on the
document. The assignment indicated that it was executed on
August 1, 2012. Gale testified that, after that date,
defendants made no payments to her.
12 Risch testified that she witnessed defendants sign the
July 2009 mortgage.
13 Plaintiffs' attorney, Ward Brown, testified regarding
his fees. The trial court admitted his affidavit and attached
14 At the conclusion of plaintiffs' case-in-chief,
defendants moved for a directed finding. Defendants argued
that plaintiffs failed to establish a prima facie
case, because they failed to establish, inter alia,
that defendants received consideration for the promissory
note. Defendants also argued that plaintiffs failed to prove
that the signatures on the promissory note were valid.
Defendants concluded that "the Court cannot conclude
that an enforceable promissory note exists."
15 The trial court denied defendants' motion for a
directed finding,  explaining that "the Plaintiffs have
adequately established a prima facie case." The
trial court stated that Dolores's testimony was
sufficient to establish that defendants received
consideration. The trial court also stated that Dolores's
testimony that she personally witnessed Gregory sign the
promissory note was sufficient to meet "the burden of
16 Warren Spencer, an expert forensic handwriting and
document examiner, testified on behalf of defendants as
follows. Spencer compared Gregory's and Michelle's
signatures on other documents to the signatures on the
promissory note. Spencer opined ...