{ "id": 564547, "name": "BRIAN P. McINTYRE, Plaintiff and Counterdefendant-Appellant, v. ROBERT E. HARRIS et al., Defendants-Appellees (Twin Oaks Savings Bank, Counterplaintiff-Appellee)", "name_abbreviation": "McIntyre v. Harris", "decision_date": "1999-04-16", "docket_number": "No. 3\u201498\u20140089", "first_page": "304", "last_page": "310", "citations": [ { "type": "official", "cite": "304 Ill. App. 3d 304" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "558 N.E.2d 208", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "the preservation of a question for review requires appropriate objection in a civil trial, and a failure to object constitutes waiver" } ], "opinion_index": 0 }, { "cite": "200 Ill. App. 3d 474", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2462919 ], "year": 1990, "pin_cites": [ { "parenthetical": "the preservation of a question for review requires appropriate objection in a civil trial, and a failure to object constitutes waiver" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/0474-01" ] }, { "cite": "543 N.E.2d 939", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "when an objection is made in the trial court, the specific grounds must be stated, and other grounds not stated are waived on appeal" } ], "opinion_index": 0 }, { "cite": "187 Ill. App. 3d 950", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2664317 ], "year": 1989, "pin_cites": [ { "parenthetical": "when an objection is made in the trial court, the specific grounds must be stated, and other grounds not stated are waived on appeal" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0950-01" ] }, { "cite": "602 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "235 Ill. App. 3d 986", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5784912 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/0986-01" ] }, { "cite": "239 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547398 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0101-01" ] } ], "analysis": { "cardinality": 524, "char_count": 11629, "ocr_confidence": 0.782, "pagerank": { "raw": 5.4604318407510435e-08, "percentile": 0.3428587921535194 }, "sha256": "92f2428d728c200fe6fb2946b67e8c61187a358af8948d5f835c2e20b61dd9a5", "simhash": "1:db1724040ea2157b", "word_count": 1999 }, "last_updated": "2023-07-14T16:20:24.702805+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BRIAN P. McINTYRE, Plaintiff and Counterdefendant-Appellant, v. ROBERT E. HARRIS et al., Defendants-Appellees (Twin Oaks Savings Bank, Counterplaintiff-Appellee)." ], "opinions": [ { "text": "JUSTICE LYTTON\ndelivered the opinion of the court:\nThe plaintiff, Brian E McIntyre, filed a complaint against the defendants, Twin Oaks Savings Bank (Bank) and Robert E. Harris (Harris), the Bank\u2019s executive vice-president. McIntyre alleged that the defendants coerced him into signing a $2,000 personal note made payable to the Bank after the Bank had erroneously paid out a check over McIntyre\u2019s valid stop payment order. The defendants counterclaimed, demanding payment on the overdue note. After a bench trial, the court found in favor of the defendants. On appeal, McIntyre contends: (1) the trial court erred in ruling that Sandra Bennett, the payee on the check, was a holder in due course; (2) McIntyre was denied a fair trial when the defendants introduced a copy of his prior felony conviction into evidence; and (3) one of the defendants\u2019 exhibits was an altered document. We affirm.\nIn mid-October 1996 McIntyre\u2019s company, Total Home, placed a telemarketing call to Sandra Bennett. As a result, Ray Archie visited Bennett\u2019s home and quoted her a price to repair her roof. McIntyre testified that since his company did not repair roofs, he referred the job to Archie. Bennett, however, believed that Archie worked for Total Home.\nAt trial, McIntyre identified defendant\u2019s exhibit 2, a carbon copy of a proposal written by Archie for Bennett\u2019s roof. The price for the job was $3,850, including $2,000 for materials. At the bottom of the proposal, Archie had signed his name and written \u201cHouse Doctor\u201d as the company performing the work. At the top of the proposal, \u201cTotal Home\u201d was written in ink.\nAround October 19, 1996, McIntyre visited Bennett and told her that in order to complete the job, it was necessary for her to give Archie $2,000 for the materials. Bennett wrote a check to Total Home for $2,000 that day. In return, McIntyre wrote Bennett a check for $2,000 and postdated it to October 28, 1996. Bennett said that McIntyre told her that she could cash his check if her roof was not repaired by October 28, 1996. McIntyre cashed Bennett\u2019s check and deposited it in his business account at the Bank. Even so, McIntyre maintained that he was simply acting as an intermediary for Archie.\nMcIntyre admitted that Bennett\u2019s roof was not repaired by October 28, 1996. Nevertheless, on November 14, 1996, he ordered the Bank to stop payment on the check to Bennett.\nAround November 27, 1996, the Bank erroneously paid out on McIntyre\u2019s check over his stop payment order. After McIntyre learned that the Bank had withdrawn the $2,000 from his business account, he spoke with Harris and told him that the withdrawal would cause his account to be overdrawn. He then went to the Bank and signed an agreement to pay the Bank $2,000 plus interest due by July 1, 1997. In return, the Bank agreed to leave the $2,000 in his account. McIntyre admitted that he never paid on the note and at the time of trial he was currently 2% months overdue on it.\nOver McIntyre\u2019s objection, the defendants submitted an offer of proof that on April 26, 1993, McIntyre pled guilty to unlawful possession of a controlled substance. See 720 ILCS 570/402 (West 1992). The judge ruled that he would allow the evidence of McIntyre\u2019s prior felony, but stressed that the conviction was inconsequential because his decision was based on the testimony given during the bench trial.\nThe judge further stated that he did not believe that McIntyre had no involvement with the roof transaction. He found that Bennett was a holder in due course of the $2,000 check. Therefore, under the Uniform Commercial Code (810 ILCS 5/1\u2014101 et seq. (West 1996)), the Bank was subrogated to the rights of Sandra Bennett and could recover the money from McIntyre. The court then found in favor of the defendants on both McIntyre\u2019s complaint and the defendants\u2019 counterclaim.\nAfter trial, the court granted McIntyre\u2019s motion to supplement the record to include evidence that his conviction had been dismissed pursuant to the first offender statute of the Controlled Substances Act. 720 ILCS 570/410 (West 1992). The court denied McIntyre\u2019s motion to reconsider, again noting that it did not consider McIntyre\u2019s prior conviction in its decision.\nI\nA. UNJUST ENRICHMENT\nMcIntyre first contends that the Bank is not entitled to a $2,000 reimbursement. In deciding this issue, we must determine two questions under section 4\u2014407 of the Uniform Commercial Code (UCC) (810 ILCS 5/4\u2014407 (West 1996)): (1) whether the Bank properly paid out over a valid stop payment order to prevent unjust enrichment, and (2) whether the Bank can be subrogated to the rights of a holder in due course or of a mere holder of a negotiable instrument. McIntyre contends that the Bank could not be subrogated because Bennett was not a holder in due course.\nSection 4\u2014407 of the UCC provides that if a payor bank has paid an item over the stop order of the drawer or maker, the bank may become subrogated to the rights of other parties in order to prevent unjust enrichment to the extent necessary to prevent loss to the bank by reason of its payment of the item. Specifically, the payor bank may become subrogated to the rights of: \u201c(1) any holder in due course on the item against the drawer or maker; (2) the payee or any other holder in due course of the item against the drawer or maker either on the item or under the transaction out of which the item arose; and (3) the drawer or maker against the payee or any other holder of the item with respect to the transaction out of which the item arose.\u201d 810 ILCS 5/4\u2014407 (West 1996). When a bank pays out a check over a valid stop payment order, the ultimate burden of proof as to loss is on the customer. Mitchell v. Republic Bank & Trust, 35 N.C. App. 101, 239 S.E.2d 867 (1978).\nSince the Bank paid out over McIntyre\u2019s valid stop payment order, we must determine whether the Bank can become subrogated to the rights of another party to prevent unjust enrichment. McIntyre admitted that Bennett wrote a $2,000 check to Total Home and that he deposited it in his business account at the Bank. He did not dispute Bennett\u2019s testimony that he told Bennett she could cash his check to her if her roof was not completed by October 28, 1996. He agreed that the roof was never completed. Therefore, McIntyre deposited $2,000 of Bennett\u2019s money in his account for work that was never performed. Under these facts, the trial court properly determined that McIntyre\u2019s testimony that he was simply an intermediary between Archie and Bennett was incredible and it properly found that McIntyre was unjustly enriched. Thus, the Bank is entitled to repayment if it can subrogate itself to the rights of a proper party under the UCC. See 810 ILCS 5/4\u2014407 (West 1996).\nB. HOLDER IN DUE COURSE\nMcIntyre argues that Bennett cannot be a holder in due course because an instrument must be negotiated to confer holder in due course status to a party.\nA payee of a check may be a holder in due course. Palmetto Leasing Co. v. Chiles, 235 Ill. App. 3d 986, 602 N.E.2d 77 (1992). A holder of an instrument is a holder in due course if: (1) the instrument when issued or negotiated to the holder does not bear apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and (2) the holder took the instrument drawn or endorsed to him: (i) for value; (ii) in good faith; and (iii) without notice of any defense against it. Palmetto Leasing Co. v. Chiles, 235 Ill. App. 3d 986, 602 N.E.2d 77 (1992); see 810 ILCS 5/3\u2014302(a)(1), (a)(2) (West 1996).\nHere, Bennett met the requirements to be a holder in due course. The check had no evidence of forgery, and she took the check for value, in good faith, and without notice that a stop payment order had been issued on the check or that any other defense was valid against it. Because of Bennett\u2019s status as a holder in due course, the Bank could be subrogated to Bennett\u2019s rights to demand payment from McIntyre under section 4\u2014407.\nMoreover, under 4\u2014407(2), even if Bennett were not a holder in due course, the Bank would still be subrogated to her rights as a payee. See 810 ILCS 5/4\u2014407(2) (West 1996). Under subsection (2), Bennett, as the payee of the instrument, even as a mere holder, obtained the right to pursue McIntyre. A payor Bank is subrogated to the rights \u201cof the payee or any other holder *** against the drawer *** on the item or under the transaction out of which the item arose,\u201d 810 ILCS 5/4\u2014407(2) (West 1996). The Bank was properly subrogated to Bennett\u2019s interest as the holder of McIntyre\u2019s check.\nII\nMcIntyre also argues that he was denied a fair trial when the defendants introduced his prior felony conviction into evidence. Specifically, he notes that the conviction was dismissed after he successfully completed 30 months\u2019 probation under the first offender statute of the Controlled Substances Act. 720 ILCS 570/410 (West 1992).\nWe find that McIntyre was not denied a fair trial when his prior conviction was admitted into evidence. First, although he objected to the admission of the conviction, McIntyre did not inform the court that he was sentenced under a unique provision allowing for the dismissal of the conviction after a successful probation period. See 720 ILCS 570/410 (West 1992). Therefore, McIntyre has waived this argument on appeal. See Akers v. Atchison, Topeka & Santa Fe Ry. Co., 187 Ill. App. 3d 950, 543 N.E.2d 939 (1989) (when an objection is made in the trial court, the specific grounds must be stated, and other grounds not stated are waived on appeal). Moreover, the trial court specifically stated both at the close of trial and in its denial of McIntyre\u2019s motion to reconsider that its decision was not affected in any way by evidence of McIntyre\u2019s prior conviction. Therefore, any error in admitting the conviction into evidence was harmless.\nIII\nFinally, McIntyre argues that the trial court erred in relying on defendants\u2019 exhibit 2, the carbon copy of the proposal Archie wrote to Bennett. McIntyre alleges that because \u201cTotal Home\u201d is written in ink on the top of the proposal it was altered. To support his contention, he points to a photocopy of the proposal in the common law record that does not contain the words \u201cTotal Home\u201d at the top.\nA review of the record shows that the photocopy of exhibit 2 cuts off the entire top portion of the proposal where \u201cTotal Home\u201d had been written. Therefore, it is not a proper comparison to the original exhibit 2. Moreover, McIntyre did not object to exhibit 2 at the trial level and has waived any objection to the proposal\u2019s authenticity on appeal. Williamsburg Village Owners\u2019 Ass\u2019n v. Lauder Associates, 200 Ill. App. 3d 474, 558 N.E.2d 208 (1990) (the preservation of a question for review requires appropriate objection in a civil trial, and a failure to object constitutes waiver). Finally, as we have noted, even without exhibit 2 there was overwhelming evidence that McIntyre was directly involved in this transaction and not simply acting as an intermediary for Archie as he has contended. Therefore, the trial court did not err in admitting exhibit 2 into evidence.\nThe judgment of the circuit court of La Salle County is affirmed.\nAffirmed.\nHOLDRIDGE, EJ., and BRESLIN, J., concur.", "type": "majority", "author": "JUSTICE LYTTON" } ], "attorneys": [ "Brian E McIntyre, of Ottawa, for appellant.", "George C. Hupp, Jr., of Hupp, Lanuti, Irion & Martin, EC., of Ottawa, for appellees." ], "corrections": "", "head_matter": "BRIAN P. McINTYRE, Plaintiff and Counterdefendant-Appellant, v. ROBERT E. HARRIS et al., Defendants-Appellees (Twin Oaks Savings Bank, Counterplaintiff-Appellee).\nThird District\nNo. 3\u201498\u20140089\nOpinion filed April 16, 1999.\nBrian E McIntyre, of Ottawa, for appellant.\nGeorge C. Hupp, Jr., of Hupp, Lanuti, Irion & Martin, EC., of Ottawa, for appellees." }, "file_name": "0304-01", "first_page_order": 322, "last_page_order": 328 }