1-01-2927 

FOURTH DIVISION

JANUARY 30, 2003

JUSTICE HARTMAN delivered the opinion of the court:

This case involves a mortgage foreclosure action filed byplaintiff-appellant, Guido M. Calcagno, Jr., as IndependentAdministrator of the Estate of Guido M. Calcagno, a/k/a GuidoCalcagno, deceased (Calcagno), and an action filed by thedefendant-appellee, Estate of Genevieve Bontkowski,⁽³⁾ a disabledperson (Estate), to set aside two quit claim deeds, against whichthe mortgages sought to be foreclosed by Calcagno were recorded. Calcagno appeals the circuit court's findings that both deeds werevoid and, therefore, the mortgages sought to be foreclosed were ofno effect against the Estate. On appeal Calcagno contends (1) thecourt erred in finding a deed involving property at 4970 NorthMason Avenue (the Mason property) was forged and therefore void;(2) the finding that a fiduciary relationship existed betweenEdward Bontkowski (Edward), one of Genevieve's sons, and GenevieveBontkowski (Genevieve) was erroneous; (3) the Estate failed torebut the presumption that the quit claim deeds were signed byGenevieve on the date they bear; and (4) the Estate failed to rebutthe presumption that Genevieve was of sound mind and of therequisite donative intent when she executed the deeds. Prior to June 1, 1997, Genevieve owned a six-flat located at2551 West Cortez (Cortez property) and the two-flat described asthe Mason property, in one of the units of which she had residedsince 1980. On June 1, 1997, she allegedly executed two quit claimdeeds transferring title to the Cortez and Mason properties intoland trusts held by the Chicago Trust Company. Her son Edward wasthe sole beneficiary of both land trusts. The Estate filed apetition for recovery of real estate seeking to set aside the quitclaim deeds, asserting that Genevieve's signatures on those deedswere forged.

Calcagno made loans to Edward on August 10, 1997, in theamount of $84,000, on September 15, 1997, in the amount of $60,000,and on October 14, 1997, in the amount of $45,000. Themortgages/trust deeds securing the August 10 and October 14 loanswere recorded against the Cortez property and the mortgage/trustdeed securing the September 15 loan was recorded against the Masonproperty. Calcagno filed a mortgage foreclosure action which wasconsolidated with the Estate's action.

At trial, it was shown that Genevieve was an 85 year oldPolish immigrant at the time of the 1997 quit claim deeds; had atmost a sixth grade education; and had a limited knowledge of theEnglish language. She had been hit by a car in October 1996. Twoother of her sons, Richard Bontkowski (Richard) and Thaddeus Bond,Sr. (Bond), testified that following this car accident Genevievesuffered from memory loss, loss of equilibrium, and severe moodswings.

Richard testified that the signatures on the Mason deed didnot look like his mother's. He asserted that Genevieve was notreasonably lucid in June and July 1997.

Bond testified that the signatures on both deeds were not hismother's. In May 1997 Genevieve was unable to sign her name. OnJune 1, 1997, he spent the day with Genevieve from 9 a.m. until 7p.m. June 1, 1997, was a Sunday and he always spent Sundays withhis mother.

Rosemarie Lewandowski testified that she was the notary publicused to acknowledge Genevieve's signatures on the quit claim deeds,which she notarized at the request of Edward. She met Edward in acoffee shop on July 22, 1997, and placed her signature and notaryseal on the deeds. She admitted that she never met Genevieve andhad no idea what her signature looked like. The deeds were notsigned in her presence.

Diane Marsh, the Estate's handwriting expert, testified thatthe signatures on the Mason property deed were not Genevieve's, but that the signatures on the Cortez property deed probably werehers. Calcagno's handwriting expert, James L. Hayes, testifiedthat it was not possible that the signatures on the Cortez deedwere forged. He further stated that the signatures on the Masondeed neither could be identified nor eliminated as those ofGenevieve. Calcagno introduced a letter from Dr. George Demos, oneof Genevieve's treating physicians, which stated that he had beenseeing her since May 1997 and that prior to sometime in July 1997,Genevieve had been very lucid. Further, her mental status changedsometime in July 1997. "Since then she has had episodes of waxingand waning mental status changes with episodes of being very lucidand episodes of being confused."

Edward presented the testimony of three Hoyne Savings Bankemployees, Iris Larson, George Hehn, and Ralph Carstensen. Theirtestimony established that in April, May, and June of 1997,Genevieve presented herself at the bank and conducted her financialtransactions.

Calcagno proved up the mortgage foreclosure action through thetestimony of Guido M. Calcagno, Jr. who established the damagesunder the three mortgages.

The circuit court entered judgment in favor of the Estate,finding: (1) the deed transferring the Mason property was forgedand therefore void and (2) there was no evidence to support afinding that the Cortez deed was forged or that Genevieve wasincompetent on June 1, 1997, but the deed was void because thetransfer of the Cortez property was the result of Edward's breachof the fiduciary relationship between himself and Genevieve. Thecourt further dismissed the amended complaint for foreclosureagainst the Estate finding that because the two deeds were void,the subsequent notes and mortgages were of no effect against theEstate. The court denied Calcagno's motion for reconsideration andvacature as to the Estate, but granted it as to Edward. The courtentered judgment in favor of Calcagno and against Edward in theamount of $387,871.97. The court awarded Calcagno attorney's feesand costs against Edward in the amount of $50,003.35. Calcagnofiled a notice of appeal. Although Edward also filed a notice ofappeal, he has filed no briefs nor has he otherwise participated inthis appeal.

Calcagno contends that the circuit court erred in finding thatthe Mason property deed was forged because the forgery was notproved by clear and convincing evidence.⁽⁴⁾

The essential elements of a forgery are (1) a false writing oralteration of some instrument in writing; (2) the instrument mustbe apparently capable of defrauding; and (3) there must be anintent to defraud. Haffa v. Haffa, 115 Ill. App. 2d 467, 253N.E.2d 507 (1969). The validity of signatures on a deed ofconveyance and the certificate of acknowledgment can be overcomeonly by clear and convincing evidence from disinterested witnesses. Witt v. Panek, 408 Ill. 328, 97 N.E.2d 283 (1951); Resolution TrustCorp. v. Hardisty, 269 Ill. App. 3d 613, 646 N.E.2d 628 (1995)(Resolution Trust). The circuit court's determination on thematter will not be disturbed unless it is against the manifestweight of the evidence. Resolution Trust, 269 Ill. App. 3d at617.

In the present case, Marsh, the Estate's handwriting expertand a disinterested witness, testified that the signatures on theMason deed were not Genevieve's. Calcagno argues that the Estatefailed to prove by clear and convincing evidence that the deed wasforged because on cross-examination Marsh admitted that it waspossible that the "G" in the signatures could have beenGenevieve's. Marsh further stated, however, that it was notprobable that the "G" was Genevieve's because it was different fromher habit formation. Hayes, Calcagno's expert, did not contradictMarsh, stating that it was possible that the Mason signatures wereforged. Lewandowski, the notary used to acknowledge Genevieve'ssignatures on the deeds, offered nothing to validate the Masonsignatures. She admitted that the deed was not signed in herpresence, she had never met Genevieve, and she had no idea what hersignature looked like.

The circuit court's finding that the signatures on the Masondeed were forged was not against the manifest weight of theevidence.

Calcagno next contends that the circuit court erred in findingthat a fiduciary relationship existed between Genevieve and Edward. Specifically, Calcagno argues that the Estate cannotrecover on the theories of fiduciary relationship or undueinfluence because it failed to plead them.

The issues in any litigation are determined by the pleadingsand an issue cannot be sustained by evidence absent a correspondingpleading. Broberg v. Mann, 66 Ill. App. 2d 134, 213 N.E.2d 89(1965). "It is a fundamental rule, with no exceptions, that aparty must recover, if at all, on and according to the case he hasmade for himself by his pleadings. He cannot make one case by hisaverments, and have judgment on another and different ground, eventhough the latter is established by the proof." Fornoff v. Smith,281 Ill. App. 232 (1935). "[A] party cannot plead one cause ofaction in its complaint and receive judgment on the basis of adifferent cause of action." Season Comfort Corp. v. Ben A.Borenstein Co., 281 Ill. App. 3d 648, 652, 655 N.E.2d 1065 (1995).

The Estate did not plead breach of fiduciary duty or undueinfluence. In its petition, the Estate pled the following theoriesas to why the deeds should be voided: (1) forgery; (2) mentalincompetence; (3) the deeds were not executed on June 1, 1997, butwere executed much later and back dated because Edward knew thatGenevieve was mentally incompetent when the deeds were executed;(4) the deeds were not executed before a notary public; (5) lackof consideration; (6) Genevieve was not represented by legalcounsel; and (7) the deeds were recorded more than one month apart. The Estate pled no factors in its petition or in itsaffirmative defense to the mortgage foreclosure action that wouldestablish undue influence or a fiduciary relationship. The partyattempting to set aside a deed has the burden of proof in showingthat the deed was procured by undue influence. In re Estate ofShedrick, 122 Ill. App. 3d 861, 462 N.E.2d 581 (1984) (Shedrick). The nature and extent of the undue influence to be proved must besuch as to dominate and control the will of the grantor and causethe grantor to make a disposition of his property which heotherwise would not have made. Shedrick, 122 Ill. App. 3d at 867. The burden of pleading and proving the existence of a fiduciaryrelationship lies with the party seeking relief and, where thealleged relationship does not exist as a matter of law, facts fromwhich a fiduciary relationship arise must be pleaded and proved byclear and convincing evidence. Farmer City State Bank v.Guingrich, 139 Ill. App. 3d 416, 487 N.E.2d 758 (1985)(Guingrich). The party seeking to establish a fiduciaryrelationship must show that he placed trust and confidence inanother so that the latter gained influence and superiority overthe former. Guingrich, 139 Ill. App. 3d at 424. The relevantfactors in determining whether a fiduciary relationship existsinclude: the degree of kinship between the parties; the disparityin age, health, mental condition and education and businessexperience between the parties; and the extent to which the"servient" party entrusted the handling of its business affairs tothe "dominant" party and placed trust and confidence in the"dominant" party. Gonzalzles v. American Express Credit Corp.,315 Ill. App. 3d 199, 733 N.E.2d 345 (2000).

The petition is devoid of any allegations that Genevieveentrusted the handling of her business and financial affairs toEdward or reposed faith and confidence in him. In Guingrich, thecourt affirmed dismissal of the defendant's affirmative defensewhere defendant failed to plead facts sufficient to claim that afiduciary relationship existed. The court noted that although attrial defendant put forth evidence regarding the long-termrelationship between the Bank and defendant and the disparity ineducation and business experience, none of these facts werealleged in defendant's defensive pleading.

Here, the circuit court erred in setting aside the Cortezdeed on the grounds of fiduciary relationship and undue influencewhere such theories were not pled. Nevertheless, the court'sdecision will be affirmed on another ground which was pled and forwhich supporting evidence appears in the record. A reviewingcourt may affirm the circuit court's judgment on any basis whichappears in the record, regardless of the basis relied upon by thecircuit court. Cruz v. Puerto Rican Society, 154 Ill. App. 3d 72,506 N.E.2d 667 (1987). "The real issue on appeal is not thereasoning of the [circuit] court nor the basis for its decree, butwhether its decree was correct." LaSalle National Bank v.International Ltd., 129 Ill. App. 2d 381, 390-91, 263 N.E.2d 506(1970).

Genevieve, an elderly widow, deeded her only two significantassets to her son, shown to be a convicted felon, for little or noconsideration. The Cortez deed indicates on its face that theproperty was transferred for consideration of $10. "Mere want orinadequacy of consideration is, standing alone, no ground forcancelling a deed; *** if, however, a person has been induced topart with a thing of value for little or no consideration, equitywill seize upon the slightest circumstance of oppression, fraud,or duress for the purpose of administering justice in the case athand." Elsasser v. Miller, 383 Ill. 243, 252, 49 N.E.2d 21(1943). See also Burroughs v. Mefford, 387 Ill. 461, 56 N.E.2d845 (1944). Those circumstances exist in the instant case.

In the case sub judice, the lack of adequate considerationcombined with the following facts supports the circuit court'sorder that the Cortez deed be set aside. The Cortez deed wasprepared by Edward's attorney. Genevieve was without independentlegal counsel. Genevieve was an 85-year-old woman. She had nomore than a sixth grade education. Her ability to speak Englishwas limited. The signatures on the Mason deed, which purportedlywas signed on the same day as the Cortez deed, were forged. TheCortez deed was not properly notarized. Lewandowski admitted thatthe Cortez deed was not signed in her presence, she had never metGenevieve, and had no idea what her signature looked like. Genevieve's alleged signature on the Cortez deed was characterizedas extremely feeble. No tax transfer stamp was affixed to theCortez deed, indicating that no monetary consideration passed. Edward did not claim that the property was a gift. The Cortezdeed properly was set aside.

In light of the above analysis, Calcagno's remainingarguments need not be addressed.

Accordingly, for the reasons set forth above, the judgment ofthe circuit court of Cook County is affirmed.

Affirmed.

HARTMAN, J., with THEIS, P.J. and GREIMAN, J., concurring.

1. Guido M. Calcagno died on December 14, 1999, prior to thetrial in this case. Guido M. Calcagno, Jr. was appointedindependent administrator of the estate of Guido M. Calcagno andwas granted leave to substitute in as a party to this actionreplacing Guido M. Calcagno, individually. The parties have failedto indicate this substitution of parties in the captions of thebriefs filed in this court.

2. The only appellee to file a response brief and participate inthis appeal was the Estate of Genevieve Bontkowski.

3. Genevieve Bontkowski died on June 26, 2001.

4. Although Calcagno includes the Cortez deed in this argumentin his brief, the circuit court specifically found that theevidence did not support a finding that the signatures on theCortez deed were forged. Moreover, the Estate concedes in itsbrief that there is no clear and convincing evidence of forgerywith regard to the Cortez deed.