{ "id": 5456535, "name": "EDWIN N. GUNN, Indiv. and as Trustee of the Edwin N. Gunn Trust, Under Trust Agreement dated March 25, 1993, as amended lastly in 1998, 2000, and 2001, Donald J. Hull, Successor Trustee, Plaintiff-Appellee and Cross-Appellant, v. LEORRAINE \"LEE\" SOBUCKI, Defendant-Appellant and Cross-Appellee", "name_abbreviation": "Gunn v. Sobucki", "decision_date": "2004-10-22", "docket_number": "No. 2-03-0177", "first_page": "785", "last_page": "790", "citations": [ { "type": "official", "cite": "352 Ill. App. 3d 785" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "331 Ill. App. 3d 434", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209181 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "440" }, { "page": "440" }, { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0434-01" ] }, { "cite": "209 Ill. 2d 127", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461360 ], "year": 2004, "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0127-01" ] }, { "cite": "273 Ill. App. 3d 866", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258646 ], "weight": 6, "year": 1995, "pin_cites": [ { "page": "875" }, { "page": "875" }, { "page": "876" }, { "page": "876-77" }, { "page": "880", "parenthetical": "Hartman, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0866-01" ] } ], "analysis": { "cardinality": 560, "char_count": 10212, "ocr_confidence": 0.746, "pagerank": { "raw": 9.210618070205369e-08, "percentile": 0.5099386103205245 }, "sha256": "2d769da97cb438810d8c1e47f36b3b266f613f6eab663d2ae2022847eaa2b405", "simhash": "1:8b737e363c8b2922", "word_count": 1706 }, "last_updated": "2023-07-14T19:57:06.765456+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BYRNE and KAPALA, JJ., concur." ], "parties": [ "EDWIN N. GUNN, Indiv. and as Trustee of the Edwin N. Gunn Trust, Under Trust Agreement dated March 25, 1993, as amended lastly in 1998, 2000, and 2001, Donald J. Hull, Successor Trustee, Plaintiff-Appellee and Cross-Appellant, v. LEORRAINE \u201cLEE\u201d SOBUCKI, Defendant-Appellant and Cross-Appellee." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nPlaintiff, Edwin Gunn, brought a two-count complaint, sounding in replevin and conversion, against defendant, Leorraine \u201cLee\u201d Sobucki, seeking possession of a collection of coins. Following a bench trial, the court found in favor of Gunn and granted a judgment of possession and a writ of replevin. The court denied Sobucki\u2019s posttrial motion, and this appeal followed. Gunn cross-appealed, seeking a judgment of approximately $5,000 for some coins allegedly missing from the collection. We reverse and remand this cause for a new trial.\nThis case involved a coin collection that had been in the possession of Sobucki\u2019s husband, Robert Sobucki, from approximately October 1979 until his death in 1998. It was undisputed that Robert received the collection from Gunn. However, Robert\u2019s method of acquiring the collection was disputed. Gunn alleged that Robert was merely holding the collection on Gunn\u2019s behalf. Sobucki alleged that Robert purchased the collection from Gunn. In April 2000, Gunn requested the return of the collection from Sobucki, who inherited Robert\u2019s property under his will. Sobucki refused to give the collection to him. This cause was then filed.\nSobucki first contends that the trial court erred in allowing Gunn to testify in violation of the Dead-Man\u2019s Act (Act), which provides in part:\n\u201cIn the trial of any action in which any party sues or defends as the representative of a deceased person or a person under a legal disability, 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 person under legal disability or to any event which took place in the presence of the deceased or person under legal disability ***[.]\nAs used in this section:\n(b) \u2018Representative\u2019 means any executor, administrator, heir or legatee of a deceased person ***.\u201d 735 ILCS 5/8 \u2014 201 (West 2002).\nThe Act bars only that evidence that could have been refuted by the decedent. Smith v. Haran, 273 Ill. App. 3d 866, 875 (1995). The trial court\u2019s ruling on an evidentiary ruling is a matter of discretion, and this court will not reverse such a ruling unless the court abuses that discretion. Smith, 273 Ill. App. 3d at 875.\nAmong the evidence admitted in this case was a document that read as follows:\n\u201cChicago, Illinois, October 5, 1979.\nBILL OF SALE\nFor and in consideration of the sum of $30,000.00 (THIRTY THOUSAND DOLLARS) and other good and valuable consideration, receipt of which is herein acknowledged, I hereby sell, transfer and assign all of the coins and bills, stamps and cachets, contained in my coin, etc. list to ROBERT E SOBUCKI, SR., *** to be his alone absolutely.\nIS/ EDWIN N. GUNN\nSubscribed and Sworn to before me this 5th day of October, 1979.\nIs/ Maria Isabel Gonzalez Notary Public.\u201d\nAlso admitted was an inventory list of coins.\nThe court allowed Gunn to testify that he never received any consideration for the coins, that he never sold the coins to Robert, and that the October 1979 \u201cBill of Sale\u201d was a sham, created to prevent Gunn\u2019s then-wife from being awarded any part of the collection during divorce proceedings. It is this testimony regarding the alleged non-sale of the coin collection that Sobucki now argues was admitted in error. We agree.\nThe trial court concluded that Smith, 273 Ill. App. 3d 866, applied and mandated that Gunn\u2019s testimony regarding the lack of consideration be admitted. In Smith, the administrator of a decedent\u2019s estate attempted to collect on a promissory note signed by the defendants and held by the decedent. The trial court excluded the defendants\u2019 testimony that they never received any money from the decedent. The appellate court concluded that the \u201cdecedent\u2019s failure to give the Harans money does not qualify as an \u2018event\u2019 under the Act.\u201d Smith, 273 Ill. App. 3d at 876. While positive testimony that money was given at a definite time would qualify as testimony about an event, negative testimony that money was not given could not be so characterized. Smith, 273 Ill. App. 3d at 876-77. However, Justice Hartman dissented from that portion of the majority opinion, positing that \u201cthe law is irrefutable: testimony 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.\u201d Smith, 273 Ill. App. 3d at 880 (Hartman, J., dissenting).\nWe disagree with the majority in Smith and conclude that Gunn\u2019s testimony should have been excluded in this case. The proposition that the Act does not apply to a \u201cnonevent\u201d is not logical. Testifying to the negative about any event turns it into a \u201cnonevent.\u201d \u201cThere was no sale\u201d (nonevent) is merely the negative of \u201cThere was a sale\u201d (event). The event at issue in this case \u2014 the transfer of possession of the coin collection from Gunn to Robert \u2014 was already established and uncontested. Whether or not payment for the collection was made is a detail of the event, and denial that payment was made does not create a \u201cnonevent.\u201d One cannot break down an event until one discovers a detail that did not occur and then dismiss the entire event as a \u201cnonevent.\u201d\nThe \u201cnonevent\u201d analysis is nothing more than a semantic exercise. Application of the Smith majority would lead to the conclusion that nonpayment is a nonevent. However, creating a dummy bill of sale is an event. Agreeing to create such a sham in order to defraud an estranged wife in divorce proceedings is an event. These are merely different ways to express (as Gunn did) what occurred if no payment was made.\nObviously, the coins were transferred to Robert in his presence. The details of this event, including payment, if any, occurred in his presence, and only he could have refuted Gunn\u2019s testimony that Robert did not pay for the coins. Therefore, the Act applied, and Gunn should not have been allowed to testify as to the alleged lack of payment. The admission of this testimony was error that requires reversal of the trial court\u2019s judgment and remand for a new .trial.\nSobucki next contends that, in its memorandum opinion, the trial court failed to discuss or consider defendant\u2019s exhibit No. 2. We first note that Sobucki\u2019s \u201cargument\u201d on this issue contains no citation to statute or case law and no actual argument as to the legal consequences of this supposed failure. Only in her reply brief does Sobucki argue that the exhibit was improperly allowed only for impeachment purposes and should have been allowed as substantive evidence. Points not argued in an appellant\u2019s brief are waived and may not be raised in the reply brief. 177 Ill. 2d R. 341(e)(7); Zaabel v. Konetski, 209 Ill. 2d 127, 136 (2004). Therefore, we find waived the argument raised in the reply brief. As to Sobucki\u2019s argument that the trial court did not consider the exhibit, the court clearly noted that it considered all of the testimony, exhibits, and arguments, although it did not \u201cset forth in detail all of the testimony and exhibits presented by the parties.\u201d Sobucki\u2019s argument on this issue is inadequate and, in any event, belied by the trial court\u2019s ruling, and we decline to find error here.\nSobucki next contends that the trial court erred in sustaining Gunn\u2019s hearsay objection to a portion of the testimony of Robert Michaels, a friend of Robert\u2019s. Sobucki attempted to question Michaels about a conversation that he had with Robert about the coins three days before Robert\u2019s death. Sobucki argued that the testimony should be allowed pursuant to the \u201cdying declaration\u201d exception to the hearsay rule. The trial court sustained the objection but allowed Sobucki to make an offer of proof, during which Michaels testified:\n\u201cBob asked me to help Lee, if need be, to sell the coins in his collection if she needed money. He also asked me to help her with estate matters, taking care of the car that was leased, a boat that had a lien on it and give her general assistance.\u201d\nSobucki subsequently argued, and argues now on appeal, that the testimony should have been allowed under the \u201cstate of mind\u201d exception to the hearsay rule. We disagree.\nA trial court\u2019s ruling on an evidentiary matter will not be reversed absent an abuse of discretion. People v. Wilson, 331 Ill. App. 3d 434, 440 (2002). Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted; such evidence is generally inadmissible unless it falls into a recognized exception. Wilson, 331 Ill. App. 3d at 440. Statements that indicate a declarant\u2019s state of mind are admissible as hearsay exceptions when the declarant is unavailable to testify and there is reasonable probability that the proffered statement is truthful; however, the declarant\u2019s state of mind must be relevant to a material issue in the case. Wilson, 331 Ill. App. 3d at 440. Here, almost 19 years after the purported sale of the coins, Robert\u2019s state of mind is irrelevant to any issue in the case. This statement was of no value other than to prove the truth asserted regarding the ownership of the coins. We find no abuse of discretion in the trial court\u2019s exclusion of this testimony.\nSobucki raises additional issues that assume, arguendo, that Gunn\u2019s testimony did not violate the Dead-Man\u2019s Act and was properly admitted. However, as we have already concluded that this testimony was improperly admitted, we need not address these issues. In addition, as we reverse and remand this cause, we need not address Gunn\u2019s cross-appeal.\nFor these reasons, the judgment of the circuit court of McHenry County is reversed, and the cause is remanded for further proceedings.\nReversed and remanded.\nBYRNE and KAPALA, JJ., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "W Randal Baudin, of Baudin & Baudin, of Dundee, for appellant.", "Philip A. Prossnitz, of Law Office of Theodore A.E. Poehlmann, EC., of Woodstock, for appellee." ], "corrections": "", "head_matter": "EDWIN N. GUNN, Indiv. and as Trustee of the Edwin N. Gunn Trust, Under Trust Agreement dated March 25, 1993, as amended lastly in 1998, 2000, and 2001, Donald J. Hull, Successor Trustee, Plaintiff-Appellee and Cross-Appellant, v. LEORRAINE \u201cLEE\u201d SOBUCKI, Defendant-Appellant and Cross-Appellee.\nSecond District\nNo. 2\u201403\u20140177\nOpinion filed October 22, 2004.\nW Randal Baudin, of Baudin & Baudin, of Dundee, for appellant.\nPhilip A. Prossnitz, of Law Office of Theodore A.E. Poehlmann, EC., of Woodstock, for appellee." }, "file_name": "0785-01", "first_page_order": 803, "last_page_order": 808 }