author: PRESIDING JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD WINSTON, Defendant-Appellant.
    Fourth District
    No. 4—89—0880
    Opinion filed August 2, 1990.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Defendant Richard Winston appeals from his convictions contending the jury returned inconsistent verdicts under the collateral estoppel component of the constitutional guarantee against double jeopardy. (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10.) We affirm.

On February 23, 1989, defendant was charged by indictment with the following felony offenses: (1) armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2); (2) unlawful use of a weapon by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1); and (3) unlawful possession with intent to deliver cannabis (Ill. Rev. Stat. 1987, ch. 56½, par. 705(c)). He successfully petitioned the circuit court to sever the weapons charge from the remaining felony charges for trial purposes on May 17.1989. See Ill. Rev. Stat. 1987, ch. 38, par. 3 — 3(c).

Defendant was initially tried before a jury on the armed violence and the cannabis charges. On May 18, 1990, the jury returned a verdict acquitting defendant of the predicate felony charges and finding him guilty of the included offense of possession of cannabis. (Ill. Rev. Stat. 1987, ch. 56½, par. 704(c).) The circuit court entered a judgment of conviction and sentenced defendant to a 364-day term of imprisonment in the Champaign County Correctional Center on June 27.1989.

Defendant was later tried before a jury on the weapons charge. He unsuccessfully petitioned the circuit court to dismiss that charge prior to trial. (See Ill. Rev. Stat. 1987, ch. 38, par. 3—4(a)(2).) On September 12, 1989, the jury returned a verdict finding defendant guilty of the weapons charge. Defendant then unsuccessfully petitioned the circuit court for a judgment notwithstanding the verdict under the collateral estoppel component of the constitutional guarantee against double jeopardy on October 11, 1989. (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10.) The circuit court entered a judgment of conviction and sentenced defendant to a concurrent five-year term of imprisonment in the Illinois Department of Corrections on November 9,1989. Defendant filed a timely notice of appeal.

Defendant initially contends the acquittal verdict on the armed violence charge and the guilty verdict on the weapons charge are inconsistent. We disagree.

A succinct analysis of the inconsistent verdict issue is presented in People v. Murray (1975), 34 Ill. App. 3d 521, 340 N.E.2d 186. That analysis provides:

“Verdicts of guilty of crime A but not guilty of crime B, where both crimes arise out of the same set of facts, are legally inconsistent when they necessarily involve the conclusion that the same essential element or elements of each crime were found both to exist and not to exist. ***
* * *
Verdicts of guilty of crime A but not guilty of crime B, where both crimes arise out of the same set of facts, while not legally inconsistent because the two crimes have different essential elements (People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840), may nevertheless be logically inconsistent. Verdicts are logically inconsistent when they can be construed to involve both the acceptance and the rejection of the same theory of the case for the State or the same theory of the defense. If they cannot be construed in any other way, then their logical inconsistency is a factor which contributes to the existence of a reasonable doubt as to the conviction, and that factor must be considered by a reviewing court in reviewing the defendant’s contention on appeal that the evidence did not prove the defendant guilty beyond a reasonable doubt. Unless also legally inconsistent, however, logically inconsistent verdicts or findings do not per se require reversal (with or without a remand for a new trial on all counts) because, despite the logical inconsistency, the reviewing court may nevertheless find that there was adequate evidence for the State which, if believed, proved the defendant guilty beyond a reasonable doubt.” (Murray, 34 Ill. App. 3d at 531-32, 340 N.E.2d at 194.)

Defendant is not entitled to a reversal of the weapons conviction on appeal unless he could establish the jury returned legally inconsistent verdicts on the predicate criminal charges severed at trial. See also People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233.

The inconsistent verdict contention of defendant is without merit. Defendant was tried on multiple felony charges in successive criminal proceedings. The fact the jury returned an acquittal verdict on the armed violence charge in the first trial is not necessarily inconsistent with the return of a guilty verdict on the weapons charge in the second trial. First, the offenses charged against defendant are distinct crimes based upon separate penal statutes. (See Ill. Rev. Stat. 1987, ch. 38, pars. 24 — 1.1, 33A — 2.) Second, the verdicts may be construed in a consistent manner. In the first trial the jury apparently concluded the defendant did not commit a felony while armed with a dangerous weapon. The jury found defendant committed a misdemeanor drug offense. The jury rejected the prosecution’s theory that defendant possessed cannabis with the intent to deliver (a felony) and thus also rejected the armed violence charge. In the second trial, the jury found defendant guilty of unlawful use of weapon by a felon — a charge based simply on using or possessing a firearm by one who has been convicted of a felony. That finding is neither logically nor legally inconsistent with the result in the first trial and defendant is thus not entitled to a reversal of the weapons conviction on that basis.

Defendant expands upon his initial contention by next arguing the prosecution on the severed weapons charge should have been barred under the collateral estoppel component of the constitutional guarantee against double jeopardy. (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10.) We again disagree.

The collateral estoppel doctrine is a component part of the constitutional guarantee against double jeopardy. (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10; Ill. Rev. Stat. 1987, ch. 38, par. 3—4(a)(2); see also Ashe v. Swenson (1970), 397 U.S. 436, 445, 25 L. Ed. 2d 469, 476, 90 S. Ct. 1189, 1195.) Under that doctrine, criminal defendants are protected against both cumulative punishments and successive prosecutions for the same offense. (See Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180; Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260; Grady v. Corbin (1990), 495 U.S. _, 109 L. Ed. 2d 548, 110 S. Ct. 2084.) The collateral estoppel doctrine provides criminal defendants with a limited measure of repose in facing the prosecution gauntlet. Green v. United States (1957), 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 223-24.

Defendant bears the burden of persuasion in raising collateral estoppel as a defense at trial. That burden is sustained with a two-prong showing: (1) the factual issue which defendant seeks to foreclose from consideration during any successive prosecution was necessarily resolved in his favor at a prior proceeding; and (2) the resolution of this issue is inconsistent with the return of a guilty verdict against defendant in that prosecution. (Dowling v. United States (1990), 493 U.S. 342, 107 L. Ed. 2d 708, 110 S. Ct. 668; United States v. Hewitt (11th Cir. 1981), 663 F.2d 1381, 1386-87.) This showing must be grounded on a practical view of the issue — verdict interrelationship within the totality of the criminal proceedings. Ashe, 397 U.S. at 444, 25 L. Ed. 2d at 475-76, 90 S. Ct. at 1194.

Defendant has not sustained his burden on the collateral estoppel doctrine in this action. As a procedural matter, defendant would not have been subjected to successive prosecution but for his petition to sever the charges at trial. (See Ill. Rev. Stat. 1987, ch. 38, par. 3—3(c).) More importantly, defendant has not shown the jury resolved any factual issue in his favor during the first trial that would militate against the return of a guilty verdict in the second trial, much less bar prosecution altogether. Although defendant posits the jury necessarily determined he had not possessed a weapon by acquitting him of the armed violence charge, that determination was simply not made in the first trial. The verdicts are consistent. One jury found the evidence sufficient to prove defendant possessed drugs for his personal use at the time of arrest but not sufficient to find he possessed those drugs with the intent to deliver them or that he committed a felony while armed with a dangerous weapon. A second jury found defendant possessed or used a firearm. The collateral estoppel doctrine is not applicable under the factual circumstances of this action.

The judgment of the Champaign County circuit court is affirmed.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID A. WHEELER, Defendant-Appellant.
    Fourth District
    No. 4—89—0350
    Opinion filed August 2, 1990.
    Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On January 27, 1989, following a jury trial in the circuit court of McLean County, defendant David A. Wheeler was convicted of criminal sexual assault for forcibly engaging in anal intercourse with his girlfriend. He was acquitted of aggravated criminal sexual assault. He was subsequently sentenced to a term of four years’ imprisonment.

On appeal, defendant maintains (1) he was not proved guilty beyond a reasonable doubt of criminal sexual assault where he had a long-term, consensual sexual relationship with the victim, and her testimony was not corroborated; (2) the court erred in denying his motion in limine to bar reference to a handgun allegedly displayed during the incident; (3) the trial court erred in allowing the admission of evidence of a paternity suit, which the victim brought against defendant; and (4) the trial court erred in refusing defendant’s tendered jury instructions on the defense of consent. We affirm.

The undisputed evidence at trial indicated (1) defendant and complainant S.M. were both 24 years old and had known each other for 11 years; (2) they had dated intermittently for nine years and had had a sexual relationship for approximately eight years; (3) the complainant and defendant had a three-year-old daughter, who lived with complainant; (4) although defendant and complainant had never lived together, for several years prior to this incident, defendant had a key to S.M.’s apartment, visited his daughter daily, and spent every Saturday night with S.M., during which time they would engage in sexual activities; (5) on Saturday, June 18, 1988, S.M. invited defendant to a family barbecue; (6) when they returned to S.M.’s apartment at midnight, S.M. put her daughter to bed and took a bath; and (7) after she finished bathing, she and defendant had consensual, vaginal intercourse on the kitchen table, but defendant did not ejaculate.

S.M. testified that after they had vaginal intercourse, defendant indicated he wanted to have anal intercourse with her and she refused. S.M. testified that defendant pulled a gun from his pants pocket, placed the gun in front of her, and warned her to be quiet so she would not awaken their daughter. She then described defendant’s several attempts to have anal intercourse, the ensuing argument they had, and defendant’s ultimately successful, forcible penetration of her anus. S.M. said she experienced considerable pain and bleeding, and she vomited, but afterward, defendant was very apologetic and told her “[njobody [would] ever have to know about this.”

S.M. testified that she did not ask defendant to leave and did not call the police, because she was scared. She said she acquiesced when he later attempted to have vaginal intercourse again, because she “just didn’t care” anymore. She indicated she acted as if everything were normal, and the next morning had the daughter give defendant a Father’s Day present, because she just wanted to “get him out of there.” She then took defendant to his house, took her daughter to her grandparent’s house, and had her grandfather take her to the hospital. She said she was examined by a doctor and a nurse after 11 a.m., and she described the examination of her rectum as very painful. She said the doctor was unable to fully examine her, because she was too sore. She said that after she left the hospital, she went to the police station and filed a complaint. She indicated she missed three days of work after the incident and later moved from her apartment. She said she had not spoken with defendant since the date of the incident.

On cross-examination, S.M. admitted she did not know if her carpet or the blanket she was wearing were stained with blood, although she did know that there was blood on her and defendant, on the linoleum bathroom floor, in the toilet, on defendant’s clothing, and on the underwear she wore to the hospital. She said no police officer photographed her or her carpet, and she did not know what had happened to the blanket, defendant’s clothing, or her underwear. The State also supported its case with the testimony of Dr. Phillip Mitchell and Nurse Henkel, who examined S.M. in the hospital emergency room, and Kevin Zeeb, an Illinois State Police forensic lab scientist.

Defendant presented Clyde Cheek, who was defendant’s supervisor at the Kroger grocery store where he worked, and Doug Price, a friend of both defendant and S.M. Cheek testified that defendant was honest, hard-working, dependable, dedicated, and had a very good reputation for peaceful and law-abiding conduct. Price testified that he was with defendant on June 18, 1988, that he and defendant had a few beers before S.M. arrived to pick him up, and that defendant did not appear to have a gun with him at that time. He said he was aware, however, that defendant owned a gun.

Defendant then testified (1) he had been employed by the Kroger Company since May 1986; (2) his 10-year relationship with S.M. was a “loving relationship,” which had become serious in the previous four or five years; (3) approximately one week prior to this incident, he and S.M. argued about their daughter, and he told S.M. the only reason he was still seeing her was because of the child; (4) on June 18, 1988, after they returned to S.M.’s apartment from the barbecue, they engaged in various consensual sexual activities, none of which included anal intercourse; (5) he never saw S.M. bleed from the rectal area, nor did he see her cry or become upset; and (6) the next morning, he received a card and gift from S.M. and the child, and S.M. took him home. He said he did not bring a gun to the apartment, and he did not place one near her as alleged.

S.M. testified in rebuttal that, contrary to defendant’s assertions, he did not live with her, and he had frequently carried a gun after he had been in a car accident a month prior to the alleged assault.

Defendant argues the conviction cannot stand, because S.M.’s testimony was not “clear and convincing,” and it was not corroborated by other facts and circumstances in evidence. (People v. Jackson (1989), 178 Ill. App. 3d 785, 793, 533 N.E.2d 996, 1001.) Defendant maintains that if an anal penetration was had, it was with the consent of S.M. Defendant notes that their previous long-term sexual relationship, as well as S.M.’s conduct during the day after the alleged offense, are inconsistent with her having been sexually assaulted against her will.

Defendant further argues the evidence did not support her claim of forcible anal intercourse. He notes she claimed he was “ranting and raving,” she was crying and begging him to stop, and that he dragged her from the bathroom. Yet neither their daughter, who was sleeping 20 feet away, nor any neighbor in the small apartment complex heard anything. Defendant further notes S.M.’s conduct after the alleged assault was extremely suspect. He notes she admittedly told him she loved him, offered no resistance to a later attempt at vaginal intercourse, and did not call anyone, get into her car, or make any attempt to leave. In addition, he notes the next morning, she gave him a Father’s Day present and told him she loved him before driving him home. Defendant claims this post-incident conduct was inconsistent with the concept of forced assault.

Moreover, defendant argues the medical testimony did not suggest a forcible anal assault.

Susan Henkel testified that S.M. told her she had been forcibly assaulted by anal intercourse, and she was concerned about permanent damage to her rectum. She said (1) she assisted in the collection of evidence via the sexual assault evidence-collection kit; (2) she observed “a little bit of bruising” in the rectal area; (3) she believed S.M. was uncomfortable, embarrassed and “shook up”; (4) the sexual assault medical-report form she had used to ask questions of S.M. indicated S.M. had responded negatively to questions regarding whether she had vomited or changed her clothes after the attack; (5) her emergency room notes indicated that S.M. had not said anything about bleeding, although Henkel said such information would be very important; and (6) the notes reflected that S.M.’s status upon discharge was “good.”

Dr. Phillip Mitchell testified at trial that he had examined and treated S.M. on July 19 in the hospital emergency room at about 2:30 p.m. He said she had a contusion or bruise in her outer anal area, and he was unable to do an internal rectal examination because of the tenderness. He said he did not observe any tears in the skin near the rectum, and the bleeding could have come from internal causes, such an hemorrhoids. He indicated the trauma was consistent with the insertion of “some kind of object” through the anus. He said, however, that there was no other indication of a recent struggle of any kind. He testified that he and a nurse collected vaginal, rectal, and oral swabs and smears of bodily fluids by inserting a Q-tip inside the various cavities. He said he believed it was possible for semen to transfer from the vagina to the anal area because of gravity, but the semen would not penetrate the anus.

Kevin Zeeb testified for the State that he had examined the various swabs and smears and found semen present on all of the vaginal and rectal samples, as well as a trace amount on an oral swab. He said the rectal smear contained a larger amount of semen than did the vaginal smear.

Defendant notes that both the physician and the nurse testified that the only trauma to S.M.’s body was a slight contusion in the area around the anus. In addition, he notes that contrary to S.M.’s testimony, Henkel said S.M. did not indicate she had vomited or changed her clothes after the attack, nor did she say anything about having bled, even though Henkel said such information was very important and would have been inquired about. Finally, defendant maintains the evidence was not clear that the semen was removed from inside the anal area, since Dr. Mitchell admitted the semen could have transferred from the vaginal area to the outer anal area by gravity.

Defendant concludes that the evidence demonstrated a set of circumstances so improbable and unlikely and without corroboration, that there exists a reasonable doubt as to defendant’s guilt. We disagree.

We note initially that, contrary to defendant’s assertion, S.M.’s testimony was substantially corroborated by the testimony of the nurse and physician who examined her in the hospital emergency room. In addition, although the evidence established that S.M. had regularly consented to vaginal intercourse over a period of years, it did not establish that she consented to anal intercourse. She said they had never engaged in anal intercourse, and she did not consent to anal intercourse on this occasion. The previous consent to vaginal intercourse, “does not give the defendant a license to forcefully require other sexual acts which the complaining witness testified were against her will.” People v. Wilcox (1975), 33 Ill. App. 3d 432, 436, 337 N.E.2d 211, 216.

The fact that S.M. did not call the police while defendant was asleep, because she was afraid he would wake up and hurt her, does not, under the circumstances, seriously impeach her testimony. (People v. Redman (1986), 141 Ill. App. 3d 691, 490 N.E.2d 958.) The evidence indicated that S.M. reported the incident as soon as she was able to remove herself and her child from defendant’s presence.

The determination of the credibility of the witnesses, the weight to be given their testimony, and inferences to be drawn therefrom is a function of the trier of fact. The jury’s determination of guilt should not be disturbed on review where, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.

Defendant next argues the trial court committed reversible error in denying defendant’s motion in limine, and overruling his objections to references to a handgun allegedly displayed by defendant during the incident. Defendant maintains the evidence was irrelevant, since the indictment alleged the offense was committed with the “use of force,” and not the threat of force. He further argues that the evidence of defendant’s possession of a gun at the time of the alleged incident was highly prejudicial, since it suggested he was guilty of other crimes and was deserving of punishment for being a “bad person.”

The court denied defendant’s motion in limine, finding that evidence of the defendant’s possession of a handgun would be “appropriate.” We agree.

Although S.M. did not specifically testify that she submitted to anal intercourse because of her fear of the gun, the evidence of defendant’s possession of the gun, together with the fact that he placed the gun in front of her at a time when he warned her not to awaken their child, was part of the totality of the circumstances with which she was confronted as she attempted to resist defendant’s efforts to engage in anal intercourse. The trial court properly denied defendant’s motion in limine.

Defendant next argues the court erred in allowing S.M. to testify over defense objection that she had previously brought a paternity suit against defendant seeking support for their daughter. Defendant maintains such testimony was irrelevant to any issue in the case and was highly prejudicial.

We agree the evidence of a paternity suit was improperly admitted, but we deem the single reference to have been harmless. Defendant testified that he was the father of S.M.’s daughter, and that he often would visit her at S.M.’s apartment. The brief reference to the paternity suit was not so prejudicial as to require reversal.

Finally, defendant maintains the trial court erred in refusing to instruct the jury as defendant requested, as to the defense of consent. Defendant argues since there was “some evidence” of consent to this offense because of his long-term relationship with S.M. and her conduct after the incident, the State was required to disprove that defense beyond a reasonable doubt. The court, in holding the evidence was insufficient to warrant submitting the issue of consent to the jury, pointed out that defendant denied anal intercourse had occurred.

Defendant notes the prosecutor was allowed to argue the absence of consent in both the opening statement and closing argument. He maintains those arguments had the likely effect of not only eliminating any possibility that the jury would find consent and then acquit, but also suggested that the prosecutor felt consent had been raised by the evidence. Defendant notes that although the prosecutor was allowed to argue a lack of consent, the court specifically refused to allow the defense to argue its existence.

A defendant is entitled to appropriate instructions, which present his theory of the case to the jury, when and if the evidence supports such a theory. (People v. Janik (1989), 127 Ill. 2d 390, 398, 537 N.E.2d 756, 760.) This is so even if the facts on which the defense is based are inconsistent with defendant’s own testimony. (People v. Bratcher (1976), 63 Ill. 2d 534, 540, 349 N.E.2d 31, 34.) The United States Supreme Court has also recognized that a defendant has the right to argue inconsistent defenses (Mathews v. United States (1988), 485 U.S. 58, 62, 99 L. Ed. 2d 54, 60, 108 S. Ct. 883, 886), even if the defendant denies one or more elements of the crime, whenever there is sufficient evidence from which a reasonable jury could find in defendant’s favor. For example, in Johnson v. United States (1970), 426 F.2d 651, 656, the defense in a rape case was permitted to argue that the act did not take place and that the victim had consented. See also People v. Gillespie (1989), 181 Ill. App. 3d 1044, 1046, 537 N.E.2d 841, 842-43.

Although only “very slight” evidence on a given theory is necessary to justify the giving of an instruction (Bratcher, 63 Ill. 2d at 540, 349 N.E.2d at 34), here, the only evidence in support of defendant’s theory of consent was the circumstantial evidence of the parties’ past relationship and the victim’s conduct immediately after the alleged incident. Clearly, S.M. had been a willing participant with defendant in acts of vaginal intercourse. However, that fact produces no inference that she was a willing participant in anal intercourse any more than such fact would produce an inference she was a willing participant in other deviant sexual activity. Defendant denied that anal intercourse ever occurred, and S.M. denied consenting to anal intercourse; thus, neither party testified to consent. Considering the totality of the record, we conclude any inferences arising from the circumstances related by the parties, which are alleged to have indicated consent, are too remote to constitute the “very slight” evidence necessary to require the instruction. We conclude, therefore, the trial court properly found a reasonable jury could not find consent and properly refused the tendered instruction.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

LUND and STEIGMANN, JJ., concur.


author: JUSTICE JOHNSON PRESIDING JUSTICE McMORROW,

text:
      In re ESTATE OF EDWARD KAMINSKI, Deceased (J. Stirling Mortimer, Special Adm’r of the Estate of Edward Kaminski, Petitioner-Appellee, v. Leon Sender, Respondent-Appellant).
    First District (4th Division)
    No. 1—87—3628
    Opinion filed June 14, 1990.

      Medard M. Narko & Associates, of Oak Forest, for appellant.
    J. Stirling Mortimer, of Dolton, appellee pro se.

   JUSTICE JOHNSON

delivered the opinion of the court:

Respondent, Leon Sender, appeals from the order and judgment of the circuit court of Cook County that ordered him to remit to the estate of Edward Kaminski, deceased, the sum of $49,000, less credit for any amount previously paid to Kaminski. The following issues are raised on appeal: (1) whether the trial court failed to consider the presumption favoring the transfer of real estate to respondent; (2) whether the special administrator failed to bear the burden of showing by clear and convincing evidence that a fiduciary relationship existed between respondent and Kaminski; (3) whether the trial court’s factual findings were supported by the evidence; (4) whether the transfer of real estate to respondent was pursuant to an agreement between respondent and Kaminski that had been fully performed by the parties; (5) whether the trial court erred in inquiring into Kaminski’s mental capacity; (6) whether the trial court erred in allowing the previously removed executrix to testify as to alleged conversations she had with Kaminski; (7) whether the trial court should have disqualified counsel who had previously represented respondent in another matter; and (8) whether a constructive trust was improperly imposed upon the proceeds from the sale of the real estate in question.

We affirm.

J. Stirling Mortimer, special administrator of the estate, brought a citation proceeding against respondent, the nephew and godchild of Kaminski, to recover property that the estate claimed Kaminski owned. The property, located at 6449 South Kedvale, in Chicago, had been Kaminski’s place of residence until 1979. Title to the property had been held in a land trust since 1969. Beneficiaries to the land trust had at one time included respondent, but respondent was removed as a named beneficiary by Kaminski in 1978. In 1979 Kaminski, in ill health and saddened by the memories that the house brought of his deceased wife, moved to Indiana to live with a relative, Mary Zalesiak. Respondent testified that he provided for the maintenance of the properly from 1979 until he sold the real estate in 1982.

In March or April 1982, Kaminski returned to Chicago. Respondent testified that during Kaminski’s stay with him they had various conversations concerning the transfer and ownership of the property in question. Initially, respondent testified that the property was a gift from Kaminski. On appeal, respondent maintains that the property was transferred to him in the form of a sale. A real estate sales contract was never drafted that reflected the agreed upon purchase price of $40,000. According to respondent, the terms of the purchase were that he would pay Kaminski $300 per month, or more if needed, until the time of his uncle’s death. Respondent could not, however, produce the memorandum reflecting these payment terms.

Subsequently, respondent instructed his attorney to prepare the necessary papers to effect transfer of the title. Once the papers were completed, respondent traveled to Michigan, where Kaminski then resided, to obtain his uncle’s signature. Kaminski signed the papers without the benefit of counsel. The papers were notarized in Michigan on May 20, 1982. Although respondent testified at trial that he had explained the contents of the documents to his uncle and that his uncle said he understood the nature of the transaction, at respondent’s deposition, he testified that he did not know if Kaminski understood the terms of the transaction.

On June 24, 1982, 34 days after the alleged transfer of the real estate, respondent sold the property in question to a third party for $49,000. Kaminski died on March 3, 1983, at the age of 71. Payments were made to Kaminski up to the time of his death. Respondent reported that the payments approximated $10,600.

Following a citation hearing, the trial court found that the transaction between respondent and Kaminski did not constitute a gift, but was, instead, “a questionable transaction where an individual of confidential relationship took advantage of the decedent.” It further found that a fiduciary or confidential relationship existed whereby respondent used undue influence to procure the property. The trial court ordered respondent to remit $49,000, less credit for any monies paid to Kaminski, to the estate of Kaminski. It is from this order that respondent appeals.

In a citation proceeding, the testimony of a donee as to what was said to him by a deceased donor is a question of credibility and must be carefully scrutinized. (See In re Estate of Shanahan (1978), 59 Ill. App. 3d 269.) The trial court is in the best position to make a determination as to witness credibility and the weight to be afforded to the testimony. (Metropulos v. Chicago Art Glass, Inc. (1987), 156 Ill. App. 3d 727, 741.) The findings of the trial court are not to be disturbed unless they are against the manifest weight of the evidence. Metropulos, 156 Ill. App. 3d at 737.

Respondent first contends that the trial court ignored the presumption that a deed duly acknowledged and recorded effectively passes title of the property to the grantee. (In re Estate of Shedrick (1984), 122 Ill. App. 3d 861, 864.) This presumption, however, is not conclusive but rebuttable. (Shedrick, 122 Ill. App. 3d 861.) A transfer of property may be set aside because of undue influence or breach of a fiduciary or confidential relationship. Crawford v. Krebs (1976), 40 Ill. App. 3d 568, 573.

In the instant case, we do not find that the trial court ignored the presumption that an acknowledged deed may effectively transfer property; rather, the court found that there existed a confidential or fiduciary relationship which warranted imposing a constructive trust on the proceeds from the sale of the property. We do not find that the trial court’s findings were against the manifest weight of the evidence.

The court considers the following factors in making its determination of whether a confidential relationship exists: the degree of kinship of the parties; the disparity in age; health and mental condition; education and business experience between the parties; and the degree of trust placed in the dominant party. (Metropulos v. Chicago Art Glass, Inc. (1987), 156 Ill. App. 3d 727, 737.) “Additionally, where a confidential relationship is found to exist, there is a presumption that the transaction complained of resulted from undue influence [citation], thereby shifting the burden to the other parties to establish the fairness of the transaction.” Metropulos, 156 Ill. App. 3d at 737.

In the instant case, the trial court found, after carefully reviewing the records, hearing arguments from both parties, and evaluating the facts against the law in this area, that the evidence was clear and convincing that a confidential or fiduciary relationship existed between the parties and that respondent failed to rebut the presumption of undue influence. We do not find this holding to be against the manifest weight of the evidence.

The trial court gleaned from the facts presented at trial that all of the factors indicative of a confidential or fiduciary relationship were present in the instant case. Respondent was the nephew and godchild of Kaminski. The discrepancy in ages was approximately 24 years. Kaminski was in failing health and still emotionally distraught over his wife, who had died in 1971. Respondent was in the real estate business and had been a broker for more than 25 years. Kaminski was a retired employee of Crane Company in Chicago. There was no evidence presented that Kaminski had, at any time, any experience in the real estate business.

The high degree of trust placed in respondent by Kaminski is evidenced by the fact that respondent was co-tenant on several joint tenancy accounts with Kaminski; by respondent’s own admission he was Kaminski’s favorite relative; and, according to respondent, Kaminski discussed certain financial matters with respondent concerning Kaminski’s assets. Kaminski had also advanced the sum of $10,000 to respondent at some point in time.

The court further noted that Kaminski did not have benefit of counsel at the time of the signing of the transfer documents. Respondent, on the other hand, had handled thousands of residential real estate transactions and also had the benefit of counsel. Although respondent’s attorney was not present when Kaminski signed the transfer papers, he had drafted the transfer documents that were presented to Kaminski by respondent for signing. At respondent’s deposition, he even testified that he did not know whether Kaminski understood the nature or consequences of signing the transfer documents. Under these circumstances, we do not find that the trial court erred in finding that respondent was clearly in the more advantageous or dominant position at the time of the alleged transfer.

The trial court also noted that there was some question as to whether Kaminski was of sound mind. This query was based, in part, on respondent’s charge in a chancery action that Kaminski was not mentally competent in August of 1982 to demand any withdrawals from Kaminski’s account. Respondent testified that even Kaminski’s signature “was not in his usual form.”

Although mental capacity to engage in a transfer must be made at the time of the conveyance (In re Estate of Clements (1987), 152 Ill. App. 3d 890, 894), we find that the trial court did not err in finding Kaminski’s mental capacity questionable at the time of the alleged transfer, since respondent’s allegations of incompetency came only a few months after Kaminski signed the transfer documents.

Based upon the above facts, we do not find that the trial court erred in finding a confidential or fiduciary relationship between respondent and Kaminski. Nor did the trial court err in finding that respondent had not rebutted the presumption of undue influence. Based upon a careful review of the record, we find that the trial court’s findings were supported by the evidence.

Respondent next contends that the transfer of real estate was pursuant to a valid agreement that had been fully performed by both parties. The only evidence of this agreement was respondent’s testimony. Although respondent testified that there had been a written agreement, that alleged agreement has not been produced to date. Respondent now, in the alternative, argues that he had offered evidence of an oral agreement.

Respondent correctly argues that Illinois courts have recognized that oral agreements for the conveyance of land are enforceable when the contracts are fully executed. (See In re Estate of Manikowski (1967), 82 Ill. App. 2d 201.) However, we find that even assuming arguendo that a fully executed oral agreement was found to exist, the breach of a fiduciary or confidential relationship would warrant setting the agreement aside. We, therefore, find no merit in respondent’s argument on this issue.

Respondent also argues that the trial court erroneously considered Kaminski’s mental capacity without proof of mental infirmity. We disagree. Respondent’s own sworn affidavit in the chancery court proceeding charged that Kaminski was mentally incompetent. Respondent also testified at his deposition that after reviewing the transfer documents, which had been prepared by respondent’s attorney, he could not ascertain whether Kaminski understood the nature of the documents or the resulting consequences that would arise from signing such documents. Further, mental condition is a factor that the court must consider in determining whether a confidential or fiduciary relationship exists. (Metropulos v. Chicago Art Glass, Inc. (1987), 156 Ill. App. 3d 727, 737.) The trial court, therefore, properly inquired into Kaminski’s mental capacity.

Next, respondent contends that Anna Zalesiak, a previously removed executrix and sister of Kaminski, was improperly called as a witness by the special administrator and allowed to testify to conversations she had with Kaminski even though she was also an interested party. All witnesses in a citation proceeding are witnesses for the court, and the rules of evidence in such proceedings are to be liberally construed, particularly those rules under the Dead Man’s Act (Ill. Rev. Stat. 1985, ch. 110, par. 8—201). (See In re Estate of Vercillo (1960), 27 Ill. App. 2d 151, 157.) “It is within the trial court’s discretion to determine whether [such] testimony is necessary to a full and fair presentation of the facts of the case.” In re Estate of Shanahan (1978), 59 Ill. App. 3d 269, 273.

We find that the trial court did not abuse its discretion in allowing the testimony of Anna. Anna was a witness for the court and not for the special administrator. She testified that her brother did not intend the transfer of the property to be a gift to respondent. This was in response to an allegation that was made, at one point, by respondent that the alleged transfer was a gift to respondent from Kaminski. We do not find that the trial court erred in determining that this was necessary in providing a full and fair presentation of the case. Further, Anna testified that Kaminski was of sound mind up until the time of his death. Competency of Kaminski at the time of the transaction would go to the validity of the transaction between Kaminski and respondent. If the transaction were found to be valid, the proceeds from the sale of the real property would not be included as an asset of Kaminski’s estate, in which she has an interest as a one-third legatee of the estate. Testimony that is adverse to the pecuniary interests of the legatee is admissible. In re Estate of Shanahan (1978), 59 Ill. App. 3d 269, 272.

As to respondent’s contention that Edmund Urban III, who had previously represented respondent in the chancery action, should have been disqualified, we find that the trial court did not err in refusing to disqualify counsel. Urban did not participate in the citation proceeding; he was merely an observer. Respondent points out that during the proceeding Urban retrieved the chancery court file for the special administrator. This, however, could not be characterized as participating in the proceedings. Further, there is no evidence of communication of any confidential information. In fact, Urban, when questioned by the court as to his status as a bystander to this action, stated that “no confidential information was revealed with regard to that Chancery action.” Respondent’s argument fails with respect to this issue.

Finally, respondent contends that the trial court incorrectly imposed a constructive trust on the proceeds gained from the sale of the property. A constructive trust may be imposed due to breach of a fiduciary or confidential relationship. (Metropulos v. Chicago Art Glass, Inc. (1987), 156 Ill. App. 3d 727, 736.) As we previously decided, the trial court properly found that a confidential or fiduciary relationship existed between the parties and that respondent failed to rebut the presumption of undue influence. Under these circumstances, a constructive trust was properly imposed.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

JIGANTI, J., concurs.

PRESIDING JUSTICE McMORROW,

dissenting:

I respectfully dissent because the evidence wholly fails to sustain the trial court’s findings, relied upon by the majority. Indeed, the evidence strongly indicates that Kaminski and respondent entered into an agreement whereby respondent purchased the property in 1982 under specific terms; that between the time of sale and Kaminski’s death, Sender made payments to Kaminski totalling $10,600; and that prior to the sale to him, Sender cared for the property and made repairs to it. I dissent because the record does not support the trial court’s finding that the transaction between Kaminski and Sender was a “questionable transaction where an individual of confidential relationship took advantage of the decedent.” The administrator failed to sustain his burden to present evidence to clearly and convincingly establish the existence of a fiduciary relationship between Sender and Kaminski or to support the administrator’s allegations of undue influence or lack of mental capacity, as is required for the imposition of a constructive trust upon the property at issue. The evidence unequivocally showed that Kaminski was mentally competent at the time of the execution of the letter of direction transferring the property to Sender and that there was no undue influence exerted upon him to execute that document.

A duly executed, acknowledged and delivered deed is presumed valid and binding. (Chicago Land Clearance Comm’n v. Yablong (1960), 20 Ill. 2d 204, 170 N.E.2d 145; Heiligenstein v. Schlotterbeck (1921), 300 Ill. 206.) To void a conveyance on the ground of undue influence, the complainant’s evidence must show that the grantee exercised such dominance and control over the will of the grantor as to have deprived the grantor of his free agency and caused him to make a disposition of his property which he otherwise would not have made. Kolze v. Fordtran (1952), 412 Ill. 461, 107 N.E.2d 686; Crawford v. Krebs (1976), 40 Ill. App. 3d 568, 352 N.E.2d 76.

A fiduciary relationship exists where one party reposes special trust and confidence in another who accepts that trust and confidence and thereby gains superiority and influence over the subservient party. (Chicago Land Clearance Comm’n v. Yablong, 20 Ill. 2d 204, 170 N.E.2d 145; In re Estate of Kieras (1988), 167 Ill. App. 3d 275, 521 N.E.2d 263; In re Estate of Shedrick (1984), 122 Ill. App. 3d 861, 462 N.E.2d 581.) In such a relationship, the dominant party is bound to act in good faith and with due regard for the interests of the subservient party. Kolze v. Fordtran, 412 Ill. 461, 107 N.E.2d 686.

Where the fiduciary relationship does not exist as a matter of law as, for example, between an attorney and client, principal and agent or guardian and ward, the burden of proving the existence of such a relationship is on the party attempting to set aside the deed or conveyance on the basis of an abuse of a relationship which is fiduciary or confidential in nature. (Klass v. Hallas (1959), 16 Ill. 2d 161, 157 N.E.2d 261; Kolze v. Fordtran, 412 Ill. 461, 107 N.E.2d 686; Stone v. Stone (1950), 407 Ill. 66, 94 N.E.2d 55; Kester v. Crilly (1950), 405 Ill. 425, 91 N.E.2d 419; Clark v. Clark (1947), 398 Ill. 592, 76 N.E.2d 446; In re Estate of Kieras, 167 Ill. App. 3d 275, 521 N.E.2d 263.) It is a long-standing rule that a fiduciary relationship will be found only where the evidence is so clear and convincing and so strong, unequivocal and unmistakable as to lead to but one conclusion. (Chicago Land Clearance Comm’n v. Yablong, 20 Ill. 2d 204, 170 N.E.2d 145; Maley v. Burns (1955), 6 Ill. 2d 11, 126 N.E.2d 695; Stewart v. Sunagel (1946), 394 Ill. 209, 68 N.E.2d 268; Dylbie v. Dylbie (1945), 389 Ill. 326, 59 N.E.2d 657; McGlaughlin v. Pickerel (1943), 381 Ill. 574, 46 N.E.2d 368; Bennett v. Hodge (1940), 374 Ill. 326, 29 N.E.2d 524; Johnson v. Lane (1938), 369 Ill. 135; In re Estate of Kieras, 167 Ill. App. 3d 275, 521 N.E.2d 263; In re Estate of Shedrick, 122 Ill. App. 3d 861, 462 N.E.2d 581.) If the evidence is doubtful or capable of reasonable explanation on theories other than a fiduciary relationship, it is not sufficient to support an order imposing a constructive trust. McCrillis v. Utterback (1947), 397 Ill. 550, 74 N.E.2d 682; Winkelman v. Winkelman (1923), 307 Ill. 249; Baughman v. Baughman (1918), 283 Ill. 55.

As the majority notes, factors to be considered in the determination of whether a fiduciary relationship exists include the degree of kinship, if any, disparity in age, health, mental condition, education and business experience, the extent to which the allegedly servient party entrusted his business or financial affairs to the other and the degree of trust and confidence placed in the dominant party. (Kester v. Crilly, 405 Ill. 425, 91 N.E.2d 419; In re Estate of Kieras, 167 Ill. App. 3d 275, 521 N.E.2d 263.) However, a close familial relationship, normal love, affection and trust or even favoritism of the grantee by the grantor are not themselves sufficient to establish a fiduciary relationship (e.g., Bennett v. Hodge, 374 Ill. 326, 29 N.E.2d 524; Stewart v. Sunagel, 394 Ill. 209, 68 N.E.2d 268; Winkelman v. Winkelman (1923), 307 Ill. 249; In re Estate of Cohan (1978), 59 Ill. App. 3d 963, 376 N.E.2d 628); nor do mere old age, physical infirmity, eccentricities, or even some impairment of the mental faculties of the grantor attendant to advanced age or physical ailments render a deed invalid (e.g., McCrillis v. Utterback, 397 Ill. 550, 74 N.E.2d 682; McGlaughlin v. Pickerel (1943), 381 Ill. 574, 46 N.E.2d 368; Johnson v. Lane, 369 Ill. 135) without a showing of domination and subservience resulting in a benefit to the grantee (Maley v. Burns, 6 Ill. 2d 11, 126 N.E.2d 695).

It is only after the party challenging the transaction has sustained his burden of proving the existence of a fiduciary relationship that a presumption of undue influence and unfairness arises and the burden shifts to the dominant party to go forward with evidence showing the fairness of the transaction. (McFail v. Braden (1960), 19 Ill. 2d 108, 166 N.E.2d 46; Staude v. Heinlein (1953), 414 Ill. 11, 110 N.E.2d 228; Stone v. Stone, 407 Ill. 66, 94 N.E.2d 55; In re Estate of Shedrick, 122 Ill. App. 3d 861, 462 N.E.2d 581; see also Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452.) Conversely, where a fiduciary relationship is not proven by the required quantum of evidence, the burden remains upon the party seeking to set aside the transaction to prove by clear, cogent and positive evidence that the transaction resulted from actual fraud or undue influence. Klass v. Hallas, 16 Ill. 2d 161, 157 N.E.2d 261; Kolze v. Fordtran, 412 Ill. 461, 107 N.E.2d 686; Bennett v. Hodge, 374 Ill. 326, 29 N.E.2d 524; Schlensky v. Schlensky (1938), 369 Ill. 179; Johnson v. Lane, 369 Ill. 135.

In light of the stringent standards applicable in cases seeking the declaration of a constructive trust on sale proceeds based on an abuse of a fiduciary relationship, a detailed review of the evidence is necessary. The record shows the following.

Sender testified that he was 47 years old, a real estate broker with 25 years’ experience and the godson, nephew and favorite relative of Kaminski. Kaminski was 71 years old, United States bom and a high school graduate. Throughout his life Sender had been close with Kaminski and his Aunt Veronica, Kaminski’s wife and his (Sender’s) godmother. He and Kaminski often fished and sometimes travelled together, and he frequently helped Kaminski with things around the house.

In 1979, shortly after his retirement, Kaminski moved from the Kedvale property to five with his sister, Mary, in Indiana, where he resided until March 1982. Kaminski’s decision to move to Indiana was due in large part to the memories the house invoked of Veronica, who had died in 1971 and for whom he continued to grieve. Between 1979 and 1982, Sender regularly checked on the Kedvale property, provided general maintenance and made several repairs to it. Through that period, however, Kaminski remained financially responsible for the property, making all payments for taxes, utilities, maintenance and repairs. While in Indiana, Kaminski continued, either alone or with some assistance from Mary, to manage his income and expenditures, as well as the filing of income tax returns. At some unspecified time in the past Kaminski had given $10,000 to Sender and had also named him as a joint tenant on one or more of his bank accounts. Sender and Kaminski did not have substantial contact during this period, and despite being a joint tenant on Kaminski’s accounts, Sender did not make withdrawals from or otherwise exercise any control over them, nor was he involved in the management of any of Kaminski’s financial affairs. He did not know with certainty either the sources or amount of Kaminski’s monthly income although he “guessed” that Kaminski received approximately $2,000 in pension and social security benefits and knew of no financial problems.

Sender further testified, without contradiction, that in March 1982, Kaminski telephoned to ask that Sender pick him up from O’Hare Airport. Sender and his wife met Kaminski and took him to their home, where he stayed for the next three weeks. Upon his arrival, Kaminski explained that Mary and her son had driven him from Indiana to Mary’s daughter’s home in Colorado and then informed him that he could not return to live with them and made arrangements for his flight back to Chicago. According to Sender, Kaminski was very hurt and angered by the actions of Mary and her family.

Within the next few days, Sender drove him to inspect the Kedvale property. While there, Kaminski stated that he did not want to move back to the house because of the memories it invoked; that he was tired of paying the bills for it; and that because Sender had taken care of the house and done so much for him over the years, he wanted him to have it. Kaminski produced a 1975 land trust agreement which designated Sender as the beneficiary upon Kaminski’s death. Prior to that time, Sender did not know of the existence of the trust or its terms. Neither did Sender know, until his disposition in this case, that in 1978 Kaminski executed a change of beneficial ownership of the trust removing Sender’s name from it. Sender did not respond to Kaminski’s remarks because Kaminski had expressed his intent to leave the house to Sender on dozens of occasions since 1974 and because, at that time, he was more concerned about where Kaminski would live if not at the Kedvale house or Indiana. During the next three weeks, however, Kaminski repeatedly told Sender and his wife that he wanted him to have the house. On one occasion, Sender suggested that he sell the house for Kaminski, but Kaminski repeated his wish to give Sender the property. Sender reminded Kaminski of the financial gifts he had previously given to him and to his children, but Kaminski persisted. Finally, after several discussions, Sender proposed, and Kaminski agreed, that the transfer of the property would be in the form of a sale, the terms of which were that Sender would pay Kaminski at least $300 per month during his lifetime, up to a maximum of $40,000.

Following their agreement, they called Kaminski’s widowed sister, Anna Zalesiak, and made arrangements for Kaminski to live with her in Michigan. Sender thereafter contacted his attorney to prepare the necessary transfer documents, but the attorney was unable to do so without information from the trust documents. Sender telephoned Kaminski, who advised him that the land trust was held by Drovers Bank & Trust and instructed him to obtain the necessary information from Drovers. Sender’s attorney then prepared a letter of direction which Sender took to Michigan for Kaminski’s signature. Sender explained that it was the document necessary for the transfer of the property to him and asked if Kaminski had any questions. Kaminski said it was “fine” and that “that’s what I want to do.” Sender then drove Kaminski to a local notary, who acknowledged his signature. Kaminski did not have an attorney review the document nor was an attorney present when he signed it. Upon his return to Chicago, Sender took the letter of direction to Drovers and had a deed prepared. He then recorded the deed, at which time he paid $80 for State and county transfer taxes, an amount based on a $40,000 sales price.

Between June 1982 and Kaminski’s death in March 1983, Sender sent varying amounts of money, totalling $10,600, to Kaminski in Michigan. Kaminski never called requesting more than $300, but Anna sometimes did. On one occasion she said that Kaminski needed money because he wanted to buy a fishing boat; however, Sender had no personal knowledge of how the money was being spent. Kaminski was aware of the sale of the Kedvale property; but he never demanded the proceeds of that sale. The testimony of Sender’s wife, Pat, was essentially the same as Sender’s regarding the events and conversations with Kaminski during the three weeks he spent with them.

Aside from Sender, who testified as an adverse witness as well as in his own behalf, the only witness presented by the administrator was Kaminski’s sister, Anna. She testified that she was the executrix of his estate and the original petitioner in this cause. Sometime in early May 1982, in a conversation with Kaminski relative to the Kedvale property, Kaminski said that “when [Sender] sells the house, he should send the money to Michigan. [I] could use it.” As to whether the house was to be a gift to Sender, Kaminski said, “s — , no. He’s got enough.” Kaminski also told her that he would not settle for less than $40,000 for it. According to Anna, Kaminski was of sound mind when he came to live with her and remained so until his death.

The evidence before the trial court also included Kaminski’s will, executed in Michigan on December 30, 1982. By its terms, each of Kaminski’s three sisters — Anna, Mary and Sender’s mother, Sophie, who apparently died after Kaminski but prior to the institution of this action — was to receive a one-third share of his estate. In the event that any of the three predeceased him, the deceased sister’s share was to go to Anna or her heirs. The will made no mention of the Kedvale property and left nothing to Sender. Kaminski died in March 1983.

The record also contains documents signed by Kaminski giving Anna his household goods and a man’s one-carat diamond ring. Also in the record are pleadings and documents relating to a citation proceeding instituted by Sender’s sister as an heir of Sophie against Anna as executor of the will. That petition alleged Anna’s misappropriation of several estate assets. Although the entire record of that proceeding is not contained in the record, it appears from documents which are included that certain of the assets claimed by Anna as well as certain of the bank withdrawals and expenditures listed on her final accounting were disallowed; that she was ultimately removed as executor of the will and that the special administrator who prosecuted this action was appointed in her stead.

The majority accurately notes that Sender was Kaminski’s nephew, godson and favorite relative; that Kaminski had previously given money to Sender; and that there was a 24-year difference in their ages. However, as held by the authorities cited earlier, a close and affectionate familial relationship, including that of parent-child, or even proof of favoritism by the grantor for the grantee, is not tantamount to a fiduciary relationship.

The majority also states that Kaminski was in “failing health” and “emotionally distraught” over the death of his wife. My review of the record discloses almost no evidence concerning Kaminski’s health at the time of the transfer. The only evidence on this subject was responses by Sender to the trial court’s questioning. Sender stated that he thought, but had no direct knowledge, that Kaminski had prostate problems and, possibly, high blood pressure and blood sugar.

Even assuming the existence of these infirmities, there was no showing, as numerous cases previously cited require, that they so impaired Kaminski as to result in Sender’s dominance over him. Further, evidence of Kaminski’s travels, both by car and airplane, between four States, and evidence that Anna later advised Sender that Kaminski wanted to buy a boat to get around the lake tend to show that Kaminski was relatively able-bodied at the time of and for months after the transfer.

Similarly, while Sender himself testified that Kaminski still grieved for his wife, the record is devoid of evidence that he was so “distraught” by her death 11 years earlier that he was incapable of making independent decisions relating to his personal interests, a critical factor which must be proved where a fiduciary relationship is alleged. In my view, this evidence was supportive of Sender’s explanation of Kaminski’s decision to dispose of the Kedvale property.

Emphasis is also placed on the facts that Sender had been a real estate broker for 25 years; that Kaminski had retired from Crane Company; and that “there was no evidence presented that he had any experience in the real estate business.” Initially, it is incumbent to keep in mind that the burden of proving a fiduciary relationship was on the administrator. Also, since the record does not disclose Kaminski’s occupation, suppositions should not be made from his employment with Crane Company. There was, however, testimony that he was born in this country, that he was a high school graduate, and that he understood the effect and mechanics of land trusts.

Moreover, I do not agree with what appears to be the majority’s conclusion that Sender’s experience and Kaminski’s relative inexperience in real estate matters created a dominant-subservient relationship. The question was not whether Sender was experienced in real estate matters, but whether by reason of his knowledge and experience he gained and exerted control over Kaminski with regard to the property at issue. There is no evidence of such control or influence in this record. Rather, the evidence established that Kaminski had not lived in the house or in Illinois since 1979; yet he continued to bear all of the financial burdens for the property. And it is conceded that Kaminski decided that memories of his wife prevented him from returning to the house but the financial burdens militated against keeping it.

It was uncontradicted that during Kaminski’s three-year absence, Sender acted as sole caretaker for the property, personally performing such tasks as cleaning, painting, pumping out the basement when it flooded, boarding up and replacing windows broken by vandals, regular lawn maintenance and the like, that even when Kaminski lived in the house, Sender helped him with its upkeep, and that Kaminski was grateful to Sender for assuming those responsibilities.

It was also unrefuted that Kaminski had been expelled from Mary’s home in Indiana, that he was hurt and angered by her actions, that when advised that he would not be allowed to return to Mary’s home, it was Sender whom he called and Sender who picked him up and provided him with a temporary place to stay. Anna was given several items of personal property and was favored in Kaminski’s will. Notwithstanding any ill feelings toward Mary, she was also included in Kaminski’s will, whereas Sender who, it is agreed, was Kaminski’s favorite relative, was left nothing under the terms of the will. Although it is true that in 1978, Kaminski retracted his 1975 designation of Sender as beneficiary of the land trust, the fact that Kaminski, without Sender’s knowledge, had designated him the beneficiary in the first instance indicates that Kaminski had independently considered gifting the property to Sender long before the events at issue.

The only evidence contrary to Sender’s assertions was Anna’s testimony that Kaminski did not intend to gift the property to Sender because, as he told her, “[h]e’s got enough.” The significance of that testimony is questionable, however, in light of the fact that Sender’s position was that the transfer was not a gift but a sale under specific terms, i.e., monthly payments of at least $300 to Kaminski during his lifetime and the documented evidence that in the 10 months between the transfer and Kaminski’s death, Sender sent Kaminski amounts totalling $10,600.

Where the evidence is doubtful or capable of reasonable explanation on a theory other than the existence of a fiduciary relationship, as is the situation here, it will not sustain the declaration or enforcement of a constructive trust. (E.g., McCrillis v. Utterback (1947), 397 Ill. 550, 74 N.E.2d 682.) In my view, the above-stated evidence provides a more reasonable explanation for Kaminski’s decision to transfer the property to Sender than the mere disparity in their knowledge or experience in real estate matters.

I agree with the majority that the evidence showed that Kaminski named Sender as a joint tenant on some of his bank accounts. Indeed, the record as a whole shows Kaminski’s trust in Sender. The nature and degree of trust necessary to create a fiduciary relationship, however, is not the normal trust placed by one family member in a relative with whom he has long enjoyed a close, affectionate relationship. (E.g., Winkelman v. Winkelman (1923), 307 Ill. 249; In re Estate of Shedrick (1984), 122 Ill. App. 3d 861, 462 N.E.2d 581.) No evidence was presented that Sender acted as owner or exercised any control over the accounts on which he was a joint tenant. (See Stewart v. Sunagel (1946), 394 Ill. 209, 68 N.E.2d 268; In re Estate of Kieras, 167 Ill. App. 3d 275, 521 N.E.2d 263.) Nor was there evidence, as the majority states, that Sender and Kaminski discussed the latter’s financial assets or affairs. To the contrary, in response to questions by the trial court, Sender expressly denied having any discussions relating to Kaminski’s assets, except for the conversations concerning the property at issue immediately prior to Kaminski’s move to Michigan.

There is no claim that Kaminski signed the letter of direction to Drovers Bank & Trust involuntarily. Therefore, the fact that an attorney was not present with Kaminski at the time of execution of the document relates only to the issue of whether he understood the nature and effect of the letter of direction. As noted earlier, evidence that he executed the documents placing the property in a land trust and was familiar with the procedures for changing beneficial ownership and, in fact, had previously done so, supports Sender’s claim that Kaminski understood the nature and effect of signing the letter of direction. Further diminishing the significance of the absence of legal counsel and refuting any claim that Kaminski did not comprehend the effect of the trust document is the lack of any evidence that subsequent to the transfer Kaminski retained any incidents of ownership, sought to exercise control over the property, was unaware of or objected to its sale or had misgivings about or a desire to rescind the conveyance. See, e.g., Chicago Land Clearance Comm’n v. Yablong, 20 Ill. 2d 204, 170 N.E.2d 145.

In my opinion, this evidence falls far short of being so clear and convincing and so strong, unequivocal and unmistakable as to lead to no other conclusion but that a fiduciary relationship existed between Kaminski and Sender. Consequently, I do not believe that there arose a presumption of unfairness or undue influence which shifted the burden of going forward to Sender. However, it is also my view that he did not present sufficient evidence to rebut any such presumption.

Neither does the record support the finding that the transfer of the Kedvale property was procured by fraud or by reason of Kaminski’s lack of mental capacity, one of which must be proved in the absence of a fiduciary relationship. As to mental capacity, the trial court stated, in its written ruling, that the initial issue in this case was whether Kaminski possessed the mental capacity to make a valid transfer of his property. The court’s qualm was based on facts discovered and presented by the administrator near the close of the citation hearing regarding events subsequent to the transfer at issue which led to the filing of a declaratory judgment action by Chicago Federal Savings and Loan (the bank). It appears that in August 1982 an unidentified person presented a sight draft to withdraw the funds from a certificate of deposit of which Sender and Kaminski were joint tenants. The bank refused to honor it because neither the passbook nor proper affidavits asserting a lost passbook were submitted. On October 25, Sender directed the bank not to permit any withdrawals from the account and to pay future interest to him. As a result, in December 1982, the bank filed a complaint for interpleader and a determination of its responsibilities with respect to the account. In January 1983, Sender filed his verified answer and counterclaim, prepared by the attorney whose presence at the administrator’s counsel table was objected to by Sender, in which he questioned whether the signature for withdrawal was actually Kaminski’s and alleged that Kaminski was not mentally competent to execute the withdrawal document. Sender sought the appointment of a conservator and a judicial determination of Kaminski’s competency; no such determination was ever made, however. On the basis of these facts, the trial court concluded that “[i]f the judicial admission by [Sender] under oath in the Chancery action are [sic] taken as true, then there is some question as to the capacity of [Kaminski] to fully understand the mechanics of the transactions entered into of [sic] May of 1982.”

As Sender correctly argues, and the majority recognizes, the test of a donor’s mental capacity is “whether at the time of the transaction” he had the ability to understand the nature of the conveyance. (Emphasis in original.) (In re Estate of Payton (1979), 79 Ill. App. 3d 732, 739; In re Estate of Clements (1987), 152 Ill. App. 3d 890.) Additionally, the burden of showing that the grantor was mentally incapable of making a deed is on the party challenging the transfer. Johnson v. Lane (1938), 369 Ill. 135; In re Estate of Clements, 152 Ill. App. 3d 890.

Here, the administrator’s statement in his brief that there was “no direct evidence of the state of mental capacity of *** [Kaminski] at the time of the execution of the documents in question” concedes that he did not meet his burden of showing lack of mental capacity. In any event, there was evidence on that issue. Not only did Sender and his wife testify that Kaminski was competent, but, as noted earlier, Anna, who instituted this proceeding against Sender, testified that Kaminski was of sound mind when he came to live with her in May 1982 and that he remained fully competent until his death. The record also discloses that Kaminski’s will, executed on December 30, 1982, was admitted to probate without contest on his mental capacity to execute it. Therefore, in contrast to the majority’s opinion, it is my view that the trial court’s inclusion of its unsupported opinion of “questionable” capacity in its determination that the transaction at issue resulted from the abuse of a confidential relationship was improper, as it was both contrary to the manifest weight of the evidence and prejudicial to Sender.

Because it is my view that the administrator wholly failed to sustain his burden of proof on any of the theories necessary to sustain the imposition of a constructive trust, I would reverse the judgment of the trial court as being against the manifest weight of the evidence.


author: PRESIDING JUSTICE McMORROW

text:
    LOUIS ACERRA, Plaintiff-Appellant, v. BARRY GERSHINZON, as the Adm’r for the Estate of David Wolfson, Defendant-Appellee.
    First District (4th Division)
    No. 1—88—3665
    Opinion filed June 14, 1990.
    Edmund P. Wanderling, Joseph N. DiNatale, and Anthony M. Montemurro, all of DiNatale & Montemurro, of River Forest, for appellant.
    Richard G. Schultz and Peter A. Silverman, both of Foran, Wiss & Schultz, of Chicago, for appellee.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff, Louis Acerra, appeals from an order granting the motion of defendant, Barry Gershinzon, the administrator of the estate of David Wolfson, for the imposition of sanctions against plaintiff and his attorneys in an action to enforce an oral contract. Plaintiff contends that the imposition of sanctions under section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611) was an abuse of the trial court’s discretion.

On August 25, 1987, plaintiff filed a three-count verified complaint seeking a declaratory judgment, specific performance, injunctive relief and an accounting in connection with an alleged oral contract for an interest in a parcel of real property. Plaintiff alleged that on December 31, 1986, pursuant to an oral agreement between them, Wolfson purchased a vacant commercial building in Chicago for $150,000 of which he (plaintiff) contributed $20,000. Under the agreement, plaintiff was to renovate the building and, in return for his monetary and renovation contributions, would then receive a 49% interest in the property. Plaintiff’s allegation that he performed approximately 70% to 75% of the renovation work between the date of purchase and April 13, 1987, was admitted by defendant in his answer.

On April 13, 1987, Wolfson disappeared. Thereafter, plaintiff was denied further access to the property pending an investigation into Wolfson’s disappearance. On July 9, 1987, Wolfson was found murdered in a wooded area in Sherwood, Illinois. Shortly thereafter, an investigation into the murder was instituted by local authorities followed by an investigation by the United States Treasury Department, Bureau of Alcohol, Tobacco and Firearms into Wolfson’s possible involvement in the trafficking of drugs and stolen merchandise.

On June 10, 1987, following a conversation with Chicago police sergeant Paul Ceffalio concerning Wolfson’s disappearance, plaintiff instructed the officer to direct any future questions to his attorneys. A few days later, one of plaintiff’s attorneys telephoned Sergeant Ceffalio and left a message that he was calling regarding the arrangement of a meeting with plaintiff. There is a dispute as to whether Sergeant Ceffalio returned the attorney’s call, but it is agreed that no conversation occurred between either the attorneys or plaintiff and Officer Ceffalio. In a conversation with Wolfson’s father on June 27, 1987, plaintiff said that he was being harassed by the police in connection with their investigation into Wolfson’s disappearance and that he had retained an attorney and was refusing to cooperate with the police.

As noted above, plaintiff filed this action against Wolfson’s estate on August 25, 1987. On September 1, 1987, plaintiff was interviewed by Officer Hanley from Shorewood and a Chicago police officer. In the course of the interview, he stated that the officers who had previously contacted him had harassed him and told him that he would be “nailed” for his involvement in Wolfson’s disappearance. At the conclusion of the interview, plaintiff gave the officers his counsel’s business card and advised them to direct all future questions to his attorneys.

On October 7, 1987, the law firm of Rudnick and Wolfe filed an appearance on behalf of defendant. By agreement of the parties, defendant was granted three extensions of time to answer or otherwise respond to plaintiff’s complaint, up to January 4, 1988. Just prior to that date, plaintiff’s counsel was notified that because of a possible conflict of interest, Rudnick and Wolfe was withdrawing from the case. Defendant was given a fourth extension, to February 4, 1988, by which to file an answer. On February 4, 1988, defendant’s current counsel filed its appearance, an answer, a request for production of documents and a notice for the deposition of plaintiff on March 9, 1988. By agreement of the parties, the deposition was rescheduled to April 13,1988.

On March 9, 1988, plaintiff’s counsel notified defendant’s counsel that he had been informed that a grand jury had been convened in Will County to investigate Wolf son’s death and possible involvement in criminal activities. Plaintiff’s attorney further advised defense counsel that until plaintiff was made aware of his status in the investigation, he could not appear for a deposition. According to the subsequently filed affidavit of Anthony Mongello, a personal and business acquaintance of plaintiff and Wolfson, he (Mongello) had been subpoenaed to appear before the Will County grand jury; plaintiff’s name was mentioned numerous times in connection with the investigation into Wolfson’s possible involvement in illegal activities; and he, Mongello, thereafter informed plaintiff of these matters.

In a letter to plaintiff’s counsel dated March 11, 1988, defense counsel noted that plaintiff’s deposition originally had been scheduled for March 9, 1988, and stated that “in light of the fact that we have already furnished you with one extension of time, we intend to take [plaintiff’s] deposition on the agreed dates of April 13th and 14th.” On March 17, 1988, defendant filed a motion to compel plaintiff to attend the April 13 deposition. Following hearings on March 21 and 30 and the filing of memoranda of law by the parties, the trial court granted defendant’s motion and ordered plaintiff to appear at the deposition scheduled for April 13.

On April 6, 1988, plaintiff filed a motion for voluntary dismissal pursuant to section 2—1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1009). On April 13, defendant responded with a motion for dismissal with prejudice and for sanctions pursuant to section 2—611 (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). The trial court granted plaintiff’s motion for voluntary dismissal without prejudice and denied defendant’s motion for dismissal with prejudice. However, the court did grant defendant’s motion for sanctions against both plaintiff and his attorneys.

The trial court based its imposition of sanctions on its findings that plaintiff and his attorneys knew or should have known, at the time the case was filed, that it could not be proven. Specifically, the court found that plaintiff knew, prior to filing the suit, that he was a potential target in the ongoing investigations into Wolfson’s possible involvement in illegal activities and his murder; that plaintiff had hired attorneys and refused to talk to the police; that he knew he could not testify until his status in those investigations was determined; and that notwithstanding his inability to testify, he proceeded to file a suit which could not be proved without his testimony. The trial court stated this was a frivolous lawsuit, not because the claim was not legitimate or because plaintiff had no evidence to support it, but, rather, because he could not “maintain the suit despite the evidence.”

Pursuant to the trial court’s order, on July 14, 1988, defendant filed a schedule of attorney fees and expenses totalling $25,606.07. On July 15, plaintiff filed a motion to reconsider the order of June 16 granting defendant’s motion for section 2 — 611 sanctions. On August 26, plaintiff filed an amended motion for reconsideration and his response to defendant’s fee schedule.

On September 19, 1988, plaintiff filed a motion for vacatur or, alternatively, for leave to withdraw his voluntary dismissal and for reinstatement of the case. In support thereof, plaintiff asserted that in August 1988, he was contacted by Special Agent Fritzsche of the Bureau of Alcohol, Tobacco and Firearms; that during a meeting with Fritzsche and Officer Hanley of the Shorewood police department, he was made aware of his status in the investigation into Wolfson’s activities; and that he was, therefore, prepared to be deposed and to proceed with the case. On that same date, defendant filed a supplemental schedule of costs and fees totalling $29,231.39, which included amounts for the preparation of a response to plaintiff’s motion to reconsider as well as preparation of the initial and supplemental fee schedules. A hearing on the motions was held on November 14, and on November 18, the trial court denied plaintiff’s motions to vacate the voluntary dismissal and to reconsider the order granting defendant’s motion for sanctions pursuant to section 2 — 611. After finding that the fees requested by defendant were excessive, the trial court awarded defendant a total of $12,828.89. Plaintiff’s timely appeal followed.

Plaintiff contends that this case does not come within the purview of section 2 — 611 and that sanctions were improperly imposed. Section 2 — 611 as amended, provides in pertinent part:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record ***. *** The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other paper is signed in violation of this Section, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party *** the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.” (Ill. Rev. Stat. 1987, ch. 110, par. 2-611.)

The purpose of section 2 — 611 is to prevent a litigant from abusing the judicial process by penalizing parties who bring vexatious or harassing actions lacking legal or factual foundation. (Beno v. McNew (1989), 186 Ill. App. 3d 359, 542 N.E.2d 533.) Because section 2 — 611 is penal in nature, it must be strictly construed and may be invoked only when each of its requirements are proved by the party seeking the sanctions. Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 525 N.E.2d 995.

Defendant asserts that sanctions were properly imposed in this case because plaintiff’s complaint was not well grounded in fact or law. Citing Galante v. Steel City National Bank (1978), 66 Ill. App. 3d 476, 384 N.E.2d 57, defendant argues that it is the law in Illinois that a plaintiff cannot “maintain” a civil action while simultaneously refusing to testify on fifth amendment grounds, and that in such circumstances, the suit must be dismissed with prejudice. It is defendant’s position, which was adopted by the trial court, that at the time the complaint was filed both plaintiff and his counsel knew that an investigation was ongoing into Wolfson’s disappearance and murder and that he was a “target” of it. Defendant emphasizes that when police officers attempted to interview plaintiff, he exercised his fifth amendment privilege against self-incrimination and refused to answer questions or otherwise cooperate with authorities; and that plaintiff and his counsel knew that “until he determined his ‘status’ in the investigation in which he was asserting his fifth amendment privilege, plaintiff would continue to invoke the fifth amendment and could not testify in support of his claim.” Defendant therefore asserts that the trial court correctly found that the action was filed in violation of section 2 — 611 because it was not well grounded either in fact or in existing law, and hence, properly imposed sanctions against both plaintiff and his attorneys. We disagree.

A fundamental allegation of plaintiffs verified complaint was that in accordance with the oral contract between him and Wolfson, he performed substantial renovation work on the building at issue for which he had received no compensation. Defendant did not move to strike or dismiss the complaint but, rather, filed an answer in which he admitted this important allegation. Further, plaintiff asserted in support of his motion for reconsideration of the imposition of sanctions that the case did not rest solely and entirely upon his own testimony but could possibly have been proven by certain other specified documentary and testimonial evidence. Moreover, the trial court itself stated that this was “not a case in which it is alleged that the facts are not true” nor one in which plaintiff did not have evidence to support his claim. Thus, it cannot be said that sanctions were justified on the basis that plaintiff’s complaint was not well grounded in fact.

Likewise, we do not believe that sanctions were warranted by the holding in Galante v. Steel City National Bank (1978), 66 Ill. App. 3d 476, 384 N.E.2d 57. In Galante, the plaintiffs brought an action to recover insurance proceeds after property in which they claimed an interest was destroyed by fire. The insurers denied liability and raised the affirmative defense of arson. Plaintiffs appeared at their depositions but refused to answer any questions, expressly invoking the fifth amendment privilege against self-incrimination. The insurers presented motions to dismiss the plaintiffs’ complaint or for other sanctions pursuant to Supreme Court Rule 219 (107 Ill. 2d R. 219). Following a hearing at which counsel for the plaintiffs advised the court that the plaintiffs would persist in refusing to answer deposition questions, the trial court struck all of the plaintiffs’ pleadings and dismissed their complaint with prejudice. On appeal, the court upheld the dismissal, stating that it would be unjust to allow the plaintiffs to proceed with the prosecution of their case and at the same time refuse to answer questions which may have substantially aided the defense or even established a complete defense. The court held that plaintiffs should not “be permitted to use the Fifth Amendment privilege as both a shield of protection and a sword of attack.” (Galante, 66 Ill. App. 3d at 482.) The instant case is distinguishable from Galante in several respects.

First, unlike the plaintiffs in Galante, and contrary to the trial court’s findings and defendant’s argument, plaintiff did not exercise his fifth amendment privilege prior to voluntarily dismissing the action. Defendant repeatedly points to plaintiff’s unwillingness between June and September 1987 to be interviewed by the police and his referral of them to his attorneys as occasions on which plaintiff exercised his fifth amendment privilege. The trial court agreed, additionally remarking that plaintiff knew that until he was made aware of his status in the investigations he would “continue” to invoke the privilege.

However, the affidavits of the police officers themselves establish that plaintiff did meet and speak with the investigative officers. Officer Ceffalio stated that he met with plaintiff on June 10, 1987, and questioned him about Wolfson’s disappearance, and that two days later plaintiff’s counsel left a telephone message for Sergeant Ceffalio regarding plaintiff. In September 1987, plaintiff also submitted to an interview by Officer Hanley of Shorewood. Officer Hanley stated that he questioned plaintiff and “among other things” plaintiff stated that he had been contacted and harassed by the Chicago police, who told him he would be “nailed” for Wolfson’s disappearance, and that “at the conclusion of the interview,” plaintiff gave him his attorneys’ business card and told Hanley to direct all future inquiries to them. Plaintiff did not refuse to respond to police questions, he simply advised the investigative officers that he chose not to voluntarily submit to additional personal interviews because he felt they were harassing and threatening him. Merely advising police officers to relay future inquires to him through his attorneys does not constitute an exercise of the fifth amendment right to remain silent.

Neither do we view the March 9 letter from plaintiff’s counsel to defense counsel regarding the “need to continue” the deposition to have been an exercise by plaintiff of his fifth amendment rights as occurred in Galante. As noted above, in Galante the plaintiffs attended their depositions but expressly refused to answer each deposition question posed on them on the ground that the answers might tend to incriminate them. Counsel for the plaintiffs in Galante also informed the court that unless his clients were given immunity from prosecution, they would persist indefinitely in their reliance on the fifth amendment right to remain silent.

In the case at bar, plaintiff did not refuse to testify at a deposition or condition his responding to deposition questions upon immunity while at the same time seek to proceed with the prosecution of his claim. Indeed, at the March 21 hearing on defendant’s motion to compel his attendance at the April 13 deposition, plaintiff’s attorneys requested a period of 14 days within which to speak with Will County investigators to learn plaintiff’s status, e.g., witness, target or neither, in the investigation. Plaintiff’s attorneys proposed that they would produce plaintiff for a discussion with the investigators and then confer with the investigators regarding plaintiff’s status. Counsel stated that if it were verified that plaintiff was not a subject of the investigation, plaintiff would submit to a deposition, and that if he was a target they would either request another postponement of the deposition or refuse to produce him for deposition and “withdraw the lawsuit.” The trial court denied plaintiff’s request for a postponement and continued the hearing on defendant’s motion to compel to March 30.

On that date, counsel for plaintiff advised the trial court that they had been contacted by an agent of the Bureau of Alcohol, Tobacco and Firearms who wished to speak to plaintiff. Counsel represented that a continuance of 45 days would provide sufficient time to determine plaintiff’s status in the criminal investigation; counsel also noted parenthetically that three extensions, totalling several months, had been granted defendant to file an answer. Counsel acknowledged that dependent upon what was learned or not learned regarding plaintiff’s status, plaintiff would have to choose either to submit to a deposition and risk possible self-incrimination or voluntarily dismiss the lawsuit. The trial court sustained the defense objection to the 45-day continuance and granted defendant’s motion to compel plaintiff’s attendance at the deposition scheduled for April 13.

Rather than either risking possible self-incrimination by testifying at a deposition, disobeying the trial court’s order to attend his deposition, or attending the deposition and then invoking the fifth amendment, plaintiff promptly, i.e., on April 6, opted to voluntarily dismiss his action. We find this decision to be in contrast to the situation in Galante, where the plaintiffs expressly invoked the fifth amendment while at the same time expected to continue prosecuting their claim, which the Galante court described as using “the Fifth Amendment privilege as both a shield of protection and a sword of attack.” Galante, 66 Ill. App. 3d at 482.

The instant case is more analogous to Model Industries, Inc. v. Walsh Press & Die Co. (1982), 111 Ill. App. 3d 572, 444 N.E.2d 639. In that case, the plaintiff filed a product liability action in April 1978. In June 1980, one day before trial and after extensive pretrial discovery, the plaintiff served defendant with notice that he would file a motion for a voluntary dismissal the following day because he had been unsuccessful in locating witnesses to support his claim. Defendant presented a motion for sanctions under the former version of section 2 — 611 arguing that the suit was not brought in good faith; that the claim was made without reasonable cause; and that plaintiff had placed an undue burden on the defendant to expend monies for attorney fees. Following a hearing, the trial court granted plaintiff’s motion for voluntary dismissal but, as in the case at bar, also granted defendant’s motion for attorney fees pursuant to section 2— 611. The appellate court reversed on the basis of strict construction of section 2 — 611. Specifically, the court found that in determining the propriety of sanctions under section 2 — 611, the issue is not whether the plaintiff had a likelihood of prevailing in the suit but whether the allegations were made without reasonable cause and were found to be untrue.

The amended version of section 2 — 611 does not require a finding of untrue allegations. It does, however, require a showing by the party seeking to invoke it that the challenged pleading lacked factual or legal foundation or that it was filed for an improper purpose. For the reasons discussed above, we find that defendant failed to sustain his burden that plaintiff’s complaint was not well grounded in fact or law or that the suit was vexatious. It necessarily follows that we also find that the trial court’s imposition of sanctions in this case was an impermissible expansion of the provisions of section 2 — 611. Consequently for the reasons stated, we reverse the order granting defendant’s motion for sanctions against plaintiff and his attorneys.

Reversed.

JOHNSON and JIGANTI, JJ., concur.