Gunn v. Sobucki
Case Date: 12/31/1969
Court: Supreme Court
Docket No: 99607 Rel
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Docket No. 99607-Agenda 22-May 2005. EDWIN N. GUNN, Indiv. and as Trustee of the Edwin N. Gunn Trust Opinion filed October 6, 2005. JUSTICE KARMEIER delivered the opinion of the court: Plaintiff, Edwin Gunn, brought an action in the circuit court of McHenry County against Leorraine "Lee" Sobucki contesting her ownership of a coin collection. Gunn's complaint was in two counts. Count I asserted a cause of action for replevin. Count II sought damages based on conversion. Following a bench trial, the circuit court entered judgment in favor of Gunn as to count I, declaring him to be the lawful owner of the coin collection, issuing a writ of replevin for recovery of the coins from Sobucki and awarding him his costs of suit. In a separate order, the circuit court denied Gunn's motion for entry of judgment as to count II. Sobucki appealed. Gunn cross-appealed. The appellate court reversed and remanded for a new trial. 352 Ill. App. 3d 785. We granted Gunn's petition for leave to appeal. 177 Ill. 2d R. 315. For the reasons that follow, we now affirm the judgment of the appellate court. The coin collection at issue in this case weighs one-half ton and was housed in approximately three dozen lock boxes and a suitcase. It was once owned by Gunn, who was a longtime friend of Robert Sobucki, Lee Sobucki's husband. In 1979, while experiencing marital difficulties, Gunn moved out of his Glenview home and into the Sobuckis' residence in Medinah, bringing the coin collection with him. On October 5, 1979, Gunn executed a notarized bill of sale stating that he had conveyed the collection to Mr. Sobucki for the sum of $30,000. The collection remained at the Sobuckis' home continuously from 1979 until the circuit entered its judgment in this case. Gunn owned two additional boxes of coins, referred to as "family coins," which he also brought to the Sobuckis' home. Those coins were not covered by the bill of sale, were returned to Gunn when he asked for them several years later, and are not involved in this litigation. Gunn subsequently moved from Illinois to the state of Florida, where he obtained a divorce from his wife, Gwendolyn, in 1981. The judgment of dissolution entered by the Florida court distributed the parties' real and personal property between them. Under that distribution, Gunn was awarded "the coin collection testified to by the parties" as well as "any proceeds [he] may have received as a result of a sale of any of the coins." At the same time, the court made a lump sum award to Gwendolyn, which it characterized as being in the nature "of an equitable distribution of the various properties testified to by the parties," in the amount of $30,000. Robert Sobucki died in 1998 and Mrs. Sobucki, his widow, inherited all of his personal property. Approximately two years after Robert's death, Gunn demanded that Mrs. Sobucki give the coins back to him. When she refused, Gunn initiated this litigation seeking replevin or, in the alternative, damages based on conversion. Mrs. Sobucki raised numerous defenses to Gunn's cause of action, including that his claims were barred by the applicable statutes of limitation. Her principal argument, however, was that because Gunn had sold the coin collection to her husband, Robert, as evinced by the notarized bill of sale, Gunn no longer had a legally cognizable claim to possession or ownership of the collection. Gunn did not dispute that he delivered the coin collection to the Sobucki home in 1979, executed the notarized document attesting that he had sold the collection to Mr. Sobucki for $30,000, and left the collection with the Sobuckis until after Mr. Sobucki's death. He argued, however, that the bill of sale was nothing more than a sham document intended to conceal his ownership so that his ex-wife could not lay any claim to the collection during their divorce proceedings 20 years earlier. According to Gunn, Robert Sobucki was only to have watched over the coins while Gunn was in Florida and never actually paid the consideration stated in the bill of sale. Gunn, who was a lawyer and member of this state's bar, claimed that he never used the sham bill of sale in the Florida divorce proceedings and instructed Mr. Sobucki to destroy his copy of the document a year or so after the divorce became final. If he gave Sobucki such instructions, however, they were not followed. Mr. Sobucki retained his copy of the bill of sale, as did Gunn. Gunn buttressed his contention that no sale had actually occurred in a variety of ways. He presented the testimony of two friends, the Dimphls, who related a conversation they had witnessed between Gunn and the Sobuckis, during which Gunn allegedly referred to the coins, still in the Sobuckis possession, as "his coins" and cautioned the couple against touching his coins with bare hands. He noted that Mrs. Sobucki was unable to produce records of the $30,000 allegedly paid by her husband to Gunn for the coins and observed that the coin collection was not mentioned in the wills executed by either Mrs. Sobucki or her husband, though it would have been the second-largest asset in her husband's estate. In addition, he pointed to Mrs. Sobucki's testimony that before 1979, her husband showed no interest in coin collecting and, after acquiring the collection, added no new coins to it, did not display it, and never had it appraised. In response to the question of why, if there had been no sale, he had waited two decades, until after Mr. Sobucki's death, before attempting to retrieve the coin collection, Gunn advanced various explanations. He testified that he was worried about the humidity of Florida's climate, which allegedly could damage the coins. He feared that a hurricane might rip through the area, destroying the collection. He also cited the "exorbitant" cost of storing the collection in a climate-controlled place, such as a bank vault or a specially constructed vault. A lengthy document written by Gunn around the time of the transaction which detailed his affairs and which was admitted into the record for purposes of impeachment contained an entry labeled "coins" with the notation: "Bought Oct. 1979 $30,000.00 Paid in cash in March-April, 1980 in Chicago Gunn: needed cash Cost price paid" The foregoing evidence was presented to the circuit court, sitting without a jury. After hearing the testimony, reviewing the exhibits admitted into evidence and listening to the arguments of counsel, the circuit court ruled that Gunn was entitled to possession of the coins. The court found the bill of sale to be without effect because of a total failure of consideration and concluded that when Gunn transferred possession of the collection to the Sobuckis, he never intended to surrender his ownership rights to them. Accordingly, the court entered judgment for Gunn on his replevin claim and held that he was entitled to recovery of the coin collection from Mrs. Sobucki. As noted earlier in this opinion, the court subsequently denied Gunn's motion for entry of judgment on his alternative claim for conversion. Mrs. Sobucki appealed, arguing, among other things, that the admission of portions of Gunn's testimony violated the Dead-Man's Act (735 ILCS 5/8-201 (West 2002)). Gunn cross-appealed, seeking judgment for approximately $5,000 to compensate him for coins allegedly missing from the collection. The appellate court found Mrs. Sobucki's Dead-Man's Act challenge to be meritorious and concluded that admission of Gunn's testimony in violation of the Act was an error requiring reversal of the trial court's judgment and remand for a new trial. Because a new trial was necessary, the court did not address Gunn's cross-appeal. 352 Ill. App. 3d 785. Gunn then petitioned our court for leave to appeal, which we allowed. 177 Ill. 2d R. 315. As grounds for challenging the appellate court's judgment, Gunn first contends that the court erred when it declined to follow Smith v. Haran, 273 Ill. App. 3d 866 (1995), in assessing whether the Dead-Man's Act barred Gunn's testimony. Smith held, among other things, that the Act did not bar defendants from testifying that a decedent had never paid them the consideration specified in a promissory note they had executed. Based on that holding, Gunn argues that the Act should likewise not bar his testimony about Mr. Sobucki's alleged failure to pay the consideration specified in the bill of sale here. We review evidentiary rulings for abuse of discretion (In re Estate of Hoover, 155 Ill. 2d 402, 420 (1993)), but the construction of a statute presents a question of law, which we review de novo. See Quad Cities Open, Inc. v. City of Silvis, 208 Ill. 2d 498, 515 (2004). The Dead-Man's Act provides: "In the trial of any action in which any party sues or defends as the representative of a deceased person ***, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased *** or to any event which took place in the presence of the deceased ***." 735 ILCS 5/8-201 (West 2002). As used in the Act, "[r]epresentative" is defined as "any executor, administrator, heir or legatee of a deceased person." 735 ILCS 5/8-201 (West 2002). The Act bars only that evidence which the decedent could have refuted. Smith, 273 Ill. App. 3d at 875. The purposes of the Act are to protect decedents' estates from fraudulent claims and to equalize the position of the parties in regard to the giving of testimony. Hoem v. Zia, 159 Ill. 2d 193, 201 (1994). Smith v. Haran, 273 Ill. App. 3d 866 (1995), the case upon which Gunn relies in urging reversal of the appellate court's judgment, involved an action by the administrator of a decedent's estate to enforce a promissory note executed by defendants under which defendants agreed to repay the decedent $125,000 within 12 months at 10% interest. Among defendants' various defenses to the administrator's claim was that the note was unenforceable because the decedent had given no consideration in exchange for their promise to pay. At trial, the circuit court barred the defendants from testifying as to their dealings with the decedent based on the Dead-Man's Act. The appellate court reversed and remanded for a new trial. Rejecting the circuit court's interpretation of the statute, the appellate court reasoned that the decedent's alleged failure to provide consideration would not qualify as an "event" within the meaning of the Act. Defendants' "negative" testimony, i.e., their testimony that the decedent never paid them anything, should therefore have been allowed. Smith, 273 Ill. App. 3d at 876-78. One justice wrote separately, concurring in part and dissenting in part. He agreed that the cause should be reversed and remanded, but rejected the majority's conclusion that allowing defendants to testify regarding the decedent's failure to provide consideration would not violate the Dead-Man's Act. In the dissenting justice's view, there was nothing in the Act that would justify a distinction to be drawn based on whether the decedent had or had not taken action. "[T]he law is irrefutable," he wrote. "[T]estimony that one did not do a certain act is equivalent, for purposes of the Act, to testimony that he or she did the act and is prohibited." Smith, 273 Ill. App. 3d at 880 (Hartman, J., concurring in part and dissenting in part). Accordingly, he concluded, "[t]o sanction the [defendants'] direct testimony that no money was ever exchanged *** clearly and impermissibly defeats the purposes of the [Dead-Man's] Act and judicially repeals its provisions." Smith, 273 Ill. App. 3d at 881 (Hartman, J., concurring in part and dissenting in part). The appellate court in the case before us shared this view. It believed that the distinction drawn by the Smith majority between positive testimony that an event had occurred and negative testimony that it had not occurred was "nothing more than a semantic exercise" and should be rejected. 352 Ill. App. 3d at 788. We agree. For purposes of applying the Dead-Man's Act, there is no logical basis for distinguishing between a payment made and one not made. In either case, the transaction, if it took place, would have occurred in the decedent's presence, and the decedent could have refuted the claim were he present at trial. In either case, the "event" at issue is simply payment. Whether the payment was made is, as noted by the appellate court, merely a "detail" of the event. The Act's dual purposes-equalizing the footing among parties and preventing fraudulent claims against estates-are best served by adopting the construction of the law followed by the appellate court in this case. Since a decedent is unable to testify about a payment, whether actually made or not, fairness dictates that an adverse party also be unable to testify as to the payment. While the rule may appear to disadvantage a living claimant, a claimant is free to pursue other evidence, not barred by the Act, which would support his claims. We note, moreover, that taking a contrary view and allowing one-sided testimony regarding payments allegedly not made would have the undesirable effect of encouraging the filing of fraudulent claims against estates, because a critical party, the decedent, would be unable to dispute such claims. The interpretation we follow here is not new. More than a century ago, in Lockwood v. Onion, 56 Ill. 506, 508 (1870), this court held that testimony that one had not received an amount of money as consideration from a decedent was prohibited by the Dead-Man's Act. As in this case, the plaintiff in Lockwood claimed the decedent failed to fulfill the promised consideration and the plaintiff introduced evidence to support the claim. Our court, clearly, and without need for explanation, held that evidence of nonpayment to have been improperly admitted. The Dead-Man's Act, as it existed then, is similar to today's Act, except that the current version is slightly less restrictive. Compare 1867 Ill. Laws 183, |