{ "id": 5784191, "name": "JOHN G. KOTSIAS, Plaintiff-Appellant, v. CONTINENTAL BANK, N.A., Defendant-Appellee", "name_abbreviation": "Kotsias v. Continental Bank", "decision_date": "1992-09-21", "docket_number": "No. 1-91-1359", "first_page": "472", "last_page": "479", "citations": [ { "type": "official", "cite": "235 Ill. App. 3d 472" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "584 N.E.2d 263", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "222 Ill. App. 3d 594", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5262176 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0594-01" ] }, { "cite": "571 N.E.2d 147", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "137 Ill. 2d 664", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1991, "opinion_index": 0 }, { "cite": "565 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 43", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553544 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0043-01" ] }, { "cite": "390 N.E.2d 393", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 37", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5584469 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0037-01" ] }, { "cite": "537 N.E.2d 967", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 126", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2619368 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0126-01" ] }, { "cite": "466 N.E.2d 958", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 972", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3632541 ], "pin_cites": [ { "page": "986" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0972-01" ] }, { "cite": "356 N.E.2d 1150", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 124", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2727496 ], "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0124-01" ] }, { "cite": "505 N.E.2d 1373", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 662", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3607442 ], "year": 1976, "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0662-01" ] }, { "cite": "388 N.E.2d 133", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 76", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5576239 ], "weight": 2, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0076-01" ] }, { "cite": "441 N.E.2d 1235", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 46", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2997079 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0046-01" ] }, { "cite": "435 N.E.2d 443", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. 2d 69", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092944 ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0069-01" ] } ], "analysis": { "cardinality": 831, "char_count": 16966, "ocr_confidence": 0.764, "pagerank": { "raw": 6.705725330881974e-08, "percentile": 0.4075467334195932 }, "sha256": "bb965f15c27e6398d228e6bac22f0353a797db798b86ae3ed763b62af2717637", "simhash": "1:ab1dc9b7adba2882", "word_count": 2676 }, "last_updated": "2023-07-14T17:52:21.957372+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN G. KOTSIAS, Plaintiff-Appellant, v. CONTINENTAL BANK, N.A., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nPlaintiff John Kotsias filed this action for monetary damages against Continental Bank, N.A. (Continental), alleging that it had wrongfully honored a forged letter of direction, purportedly authored by the then living settlor, George Korovinis, to remove plaintiff as the sole beneficiary of a Totten trust opened and maintained at defendant\u2019s bank. Plaintiff\u2019s amended complaint pursued theories of negligence, fraud, breach of contract and breach of various sections of the Uniform Commercial Code \u2014 Bank Deposits and Collections (the Code) (HI. Rev. Stat. 1989, ch. 26, par. 4 \u2014 101 et seq.).\nAfter a bench trial, the circuit court of Cook County entered judgment against plaintiff on all claims, holding that: (1) the Moorman doctrine, first enunciated in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, barred plaintiff\u2019s negligence count; (2) plaintiff failed to show that the letter of direction was a forgery; and (3) plaintiff\u2019s claims were affirmatively barred by the doctrine of judicial estoppel and plaintiff\u2019s failure to mitigate damages.\nPlaintiff on appeal contests these findings and, in addition, alleges that the circuit court erred in failing to address his fraud and Code claims and that the court abused its discretion in allowing Continental to add during trial the affirmative defenses of judicial estoppel and mitigation of damages. We affirm.\nOn January 6, 1984, George Korovinis, age 94, opened and deposited $143,000 into a Totten trust account at Continental, naming plaintiff as the sole beneficiary. Plaintiff accompanied Korovinis, his \u201cteacher, mentor and life-long friend,\u201d to Continental and was present during the opening procedure.\nOn September 18, 1984, Continental received a letter of direction, purportedly handwritten and signed by Korovinis, to remove plaintiff as a beneficiary from the account. The letter stated that plaintiff \u201cha[d] been dishonest to me\u201d and requested Continental to send a confirmation of the change.\nDonna Bylina, a personal banking investigator with Continental, testified that she compared the letter\u2019s signature with the trust account\u2019s signature card. After concluding the two matched, Bylina caused Continental on September 19, 1984, to change the title of the account as directed from \u201cGeorge J. Korovinis Trustee for John G. Kotsias\u201d to that of Korovinis in his individual capacity. Continental sent a letter of confirmation to Korovinis bearing the same date as the change. Continental never received any response to its confirmation letter.\nKorovinis died on January 29, 1985. Within days, plaintiff contacted Continental regarding the account and was informed his name was no longer on the account. Plaintiff had not seen Korovinis for at least three or four months prior to his death. Plaintiff consulted with lawyers to determine any rights he may have had to the funds.\nFollowing the appointment of a public administrator, Continental paid over to the administrator of the Korovinis estate the proceeds of the account, which then totaled $156,105.83. Although plaintiff testified that he knew the trust account funds were not going to him as early as August 1985, plaintiff never filed any claim against the estate during its administration relative to the trust account funds. On August 20, 1986, the estate was ordered closed, and the proceeds of the account were distributed to Korovinis\u2019 heirs at law in Greece. No evidence exists that any heir knew of the account\u2019s existence.\nAt approximately the same time that the Korovinis estate was being probated, Kotsias was pursuing a voluntary petition for bankruptcy. In that petition, filed on November 27, 1985, Kotsias affirmatively answered \u201cnone\u201d to a question asking for a listing of all \u201ccontingent and unliquidated claims of every nature.\u201d Kotsias did list an $11,000 debt to the Korovinis estate, but labeled the debt \u201cdisputed.\u201d\nPlaintiff obtained a discharge of his debts from the bankruptcy court on May 20, 1986, and plaintiff\u2019s bankruptcy estate was closed on August 29, 1986, nine days after the closure of the Korovinis estate. Two months later, plaintiff filed an appearance with the probate court and later petitioned to reopen the Korovinis estate. The probate court denied plaintiff\u2019s petition on the grounds of tardiness and plaintiff\u2019s failure to provide any justification for his delay.\nPlaintiff filed the instant action against Continental on September 6, 1989, four years and nine months following Korovinis\u2019 death. In his initial pro se complaint, plaintiff did not specify what legal theory of recovery formed the basis of his suit, but he nevertheless sought $20 million in damages.\nThe circuit court heard three days of testimony in late October 1990. Kotsias filed an amended complaint, and the court permitted Continental to file an amended answer which included the affirmative defenses of judicial estoppel and mitigation of damages. The trial concluded with a short day of testimony in December 1990.\nOn April 11, 1991, the circuit court entered final judgment against plaintiff. In part, the circuit court concluded that not only did plaintiff fail to prove the letter of direction to be a forgery, but that Continental, although not required to do so, proved by a preponderance of the evidence that the letter originated with Korovinis.\nOn review, we agree with Continental that whether it breached a contract or duty of care, committed fraud or wrongfully dishonored an item under section 4 \u2014 402 of the Code turned on whether plaintiff proved by a preponderance of the evidence that the letter of direction was a forgery. We believe, therefore, that the dispositive issue on appeal is whether the circuit court\u2019s factual conclusion on the authenticity of the letter of direction was contrary to the manifest weight of the evidence. As discussed more fully below, our review of the evidence leads us to conclude that the manifest weight of the evidence supports the court\u2019s belief that Korovinis authored the letter.\nBecause Korovinis is deceased, and no person testified to have witnessed Korovinis\u2019 execution of the letter of direction, no direct evidence exists that Korovinis authored the letter. However, Korovinis\u2019 authorship could be proven by circumstantial evidence:\n\u201cProof of authenticity or identification may be by direct or circumstantial evidence.\n*** In reaching its determination as to admissibility, the court must view all the evidence introduced as to authentication ***, including issues of credibility, most favorable to the proponent. If upon consideration of the evidence as a whole, the court determines that the evidence is sufficient to support a finding by a reasonable juror that it is more probably true than not true that the matter in question is what its proponent claims, the evidence will be admitted. *** The ultimate decision as to whether a person, document, or item of real or demonstrative evidence admitted in evidence is as purported is for the trier of fact.\u201d M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7901.1 (5th ed. 1990).\nSupport for our affirmance on the factual issue of the letter\u2019s authenticity begins with an analysis of plaintiff\u2019s own testimony. Plaintiff testified that he, his -wife and grandmother, and Korovinis were the only people whom plaintiff knew to have knowledge of the fact that plaintiff was a beneficiary of the account. Plaintiff testified that Korovinis was extremely secretive about his finances and that Korovinis told plaintiff numerous times that he did not want others to know about the account. Plaintiff presented no proof that others, particularly Korovinis\u2019 legal heirs, knew of the account.\nThe above circumstances support the trial court\u2019s conclusion that Korovinis authored the letter of direction. (See People v. Buford (1982), 110 Ill. App. 3d 46, 441 N.E.2d 1235; People v. Munoz (1979), 70 Ill. App. 3d 76, 388 N.E.2d 133.) Authenticity on this ground is supported by the following rationale:\n\u201c \u2018For this principle to operate the [writing] must deal with a matter sufficiently obscure or particularly within the knowledge of the persons corresponding so that the contents of the [writing] were not a matter of common knowledge.\nThe evidential hypothesis in the authentication step is this: only those who knew the details in the [writing] could have written it; if the purported writer can be shown to have probably known the details and if no other person is likely to have known them when the [writing] was written, it is likely that he wrote it. The force of the inference decreases as the number of people who know the details and may have written the [writing] increases.\u2019 \u201d Munoz, 70 Ill. App. 3d at 87, 388 N.E.2d at 141, quoting 5 J. Weinstein & M. Berger, Weinstein\u2019s Evidence par. 901(b)(4) [01], at 46.\nThe Munoz rationale also applies to a statement in the letter of direction that plaintiff \u201chas been dishonest to me.\u201d At trial, Continental demonstrated that plaintiff and Korovinis may indeed have been having problems at the time the letter was authored.\nPlaintiff testified that after the account was opened and prior to the letter of direction, Korovinis loaned plaintiff $11,000. Plaintiff never reimbursed Korovinis, and plaintiff\u2019s obligation to repay Korovinis was discharged in bankruptcy. Plaintiff admitted to not seeing Korovinis for a period of about 3 to 4 months prior to Korovinis\u2019 death, a period corresponding to the time the letter of direction was sent.\nLinda Schiewe Wolf, a former social worker for Catholic Charities, testified that when she visited Korovinis a short time before his death in the winter of 1984-85, Korovinis was concerned about not being repaid a sum of money which he had loaned a former student. Korovinis repeated this concern several times.\nApart from the evidence supplying certain inferences of authorship based on the Munoz rationale, another statement in the letter is inconsistent with an inference of forgery: a request for confirmation of the change in title. We agree with the circuit court\u2019s observation that an alleged forger would not likely place a confirmatory request in a forged letter of direction.\nBelative to the requested confirmatory memoranda, Donna Bylina of Continental identified the letter she sent in confirmation of the title change. She testified that she typed the letter and envelope herself, placed the letter in the envelope, and placed the envelope in one of Continental\u2019s out boxes for mailing. This mailing routine was the office practice. Continental never received a response to its confirmation.\nTwo inferences arise from Bylina\u2019s testimony. The first is that Korovinis presumptively received the confirmation letter. (See First Na tional Bank v. Guerra Construction Co. (1987), 153 Ill. App. 3d 662, 668, 505 N.E.2d 1373; Tabor & Co. v. Gorenz (1976), 43 Ill. App. 3d 124, 129, 356 N.E.2d 1150.) The second is that, assuming Korovinis received the letter, Korovinis\u2019 failure to respond evinces his agreement with the change in title, otherwise he would have responded to the contrary. Even if no letter of confirmation was sent as argued by plaintiff, plaintiff cannot get around the fact that the letter of direction requested confirmation, an unlikely request of a forger.\nPlaintiff\u2019s only evidence that the letter of direction was in fact a forgery came from his handwriting analysis expert. While the expert believed the letter of direction constituted a forgery, his testimony is suspect. First, the latest standard the expert used was written in January 1983, 20 months prior to the alleged authorship of the letter of direction. Other standards the expert utilized were written by Korovinis in the early 1940\u2019s. On cross-examination, the expert could not rule out that a near-death change in Korovinis\u2019 health accounted for the change in writing he observed.\nSecond, the expert concluded that the signature card and check used to fund the account were forgeries. This conclusion, as the circuit court noted, is indeed \u201ccurious,\u201d in light of the undisputed evidence that plaintiff and Korovinis opened the Totten trust account together.\nFinally, plaintiff\u2019s expert evidence was in contrast to the testimony of Bylina, who testified that she personally compared the signature on the letter of direction with the signature card and concluded that they matched. The respective weight and credibility of plaintiff\u2019s expert and Bylina were for the trial court to determine (Dayan v. McDonald\u2019s Corp. (1984), 125 Ill. App. 3d 972, 986, 466 N.E.2d 958), as was the entire factual issue of who authored the letter of direction.\nAfter reviewing the record evidence, we believe that the manifest weight of the evidence supports the trial court\u2019s determination that Korovinis authored the letter of direction. Accordingly, as proof of a forgery was central to plaintiff\u2019s claims, plaintiff\u2019s causes of actions all must fail.\nAlthough unnecessary to our disposition, we believe plaintiff\u2019s claims against Continental are barred by the doctrine of laches. To assert the defense of laches, a party must show an unreasonable delay in bringing the action and that the delay materially prejudiced him. (Eckberg v. Benso (1989), 182 Ill. App. 3d 126, 537 N.E.2d 967.) Whole traditionally the doctrine has been viewed as barring equitable actions only (Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393), recent cases have applied it to bar claims of law as well. See Coleman v. O\u2019Grady (1990), 207 Ill. App. 3d 43, 565 N.E.2d 253, appeal denied (1991), 137 Ill. 2d 664, 571 N.E.2d 147; see also People ex rel. Jackson v. Degroot Motors Services, Inc. (1991), 222 Ill. App. 3d 594, 584 N.E.2d 263 (reviewing conflicting law on legal/equitable distinction).\nIn this case, plaintiff cannot readily dispute his knowledge of a potential claim to the trust account\u2019s proceeds. He was present when the account was opened and witnessed Korovinis sign the necessary bank forms to establish him as beneficiary. Approximately one year following the opening of the account, Korovinis died. Within days, plaintiff learned he would not get the proceeds of the account.\nPlaintiff testified that during the summer months following Korovinis\u2019 death, he researched the filing of claims against an estate and consulted with an attorney. When this attorney failed to investigate plaintiff\u2019s claim to his satisfaction, other attorneys were contacted, and one was even retained.\nDuring the pendency of the Korovinis estate, plaintiff\u2019s November 1985 petition for bankruptcy proceeded forward. In sworn disclosure statements, plaintiff did not disclose his contingent claim for the proceeds of the Totten trust account. However, plaintiff did list his debt to Korovinis in his bankruptcy petition. This debt was successfully discharged. Plaintiff\u2019s bankruptcy case terminated in August 1986.\nAbout the same time that plaintiff emerged from bankruptcy, the Korovinis estate was closed. Two months later, plaintiff sought to reopen the estate to assert a claim to the account proceeds. Plaintiff did not seek to amend his bankruptcy petition to include his claim against the estate. Plaintiff\u2019s effort to reopen the estate was denied in June 1987. Plaintiff commenced the instant action against Continental in September 1989, some four years and nine months following Korovinis\u2019 death.\nWe believe plaintiff\u2019s failure to file a claim against Continental until almost five years after Korovinis\u2019 death was an unreasonable delay. Whether this delay was motivated by plaintiff\u2019s desire to \u201chave his cake and eat it too\u201d is not necessary for us to conclude. It is sufficient that plaintiff knew of a potential claim and failed to act upon it for almost five years.\nThe prejudice to Continental which resulted from plaintiff\u2019s delay is manifest. Upon presentation of the public administrator\u2019s letters of office, Continental paid over the account proceeds. Continental was merely a stake holder of the account proceeds at this time; it did not care who ultimately received the money. Had Continental timely received a claim from plaintiff to the funds, it could have taken appropriate actions to protect its interests. Failing such claim, Continental did what it was required to do: pay the funds to the Korovinis estate. Clearly, to now allow plaintiff to seek redress from Continental in light of plaintiff\u2019s harmful delay is inequitable.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nBUCKLEY, P.J., and CAMPBELL, J., concur.", "type": "majority", "author": "JUSTICE O\u2019CONNOR" } ], "attorneys": [ "John G. Kotsias, of Chicago, appellant pro se.", "Mayer, Brown & Platt, of Chicago (William E. Deitrick, Ruth Miller, and Ira J. Belcove, of counsel), for appellee." ], "corrections": "", "head_matter": "JOHN G. KOTSIAS, Plaintiff-Appellant, v. CONTINENTAL BANK, N.A., Defendant-Appellee.\nFirst District (1st Division)\nNo. 1\u201491\u20141359\nOpinion filed September 21, 1992.\nJohn G. Kotsias, of Chicago, appellant pro se.\nMayer, Brown & Platt, of Chicago (William E. Deitrick, Ruth Miller, and Ira J. Belcove, of counsel), for appellee." }, "file_name": "0472-01", "first_page_order": 492, "last_page_order": 499 }