                             2016 IL App (2d) 160022 

                                  No. 2-16-0022

                         Opinion filed September 27, 2016 

______________________________________________________________________________

                                              IN THE


                              APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

GARY VICIAN and GALE VICIAN,           ) Appeal from the Circuit Court
Assignees of Edward Vician and Dolores ) of McHenry County.
Vician,                                )
                                       )
      Plaintiffs-Appellees,            )
                                       )
v.                                     ) No. 14-LA-127
                                       )
GREGORY L. VICIAN and MICHELLE         )
VICIAN,                                ) Honorable
                                       ) Thomas A. Meyer,
      Defendants-Appellants.           ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the judgment of the court, with opinion.
       Justices Hudson and Birkett concurred in the judgment and opinion.

                                            OPINION

¶1     Plaintiffs, Gary Vician and Gale Vician, assignees of Dolores Vician and Edward Vician

on a promissory note, filed a complaint against defendants, Gregory L. Vician and Michelle

Vician. After a bench trial, the trial court awarded plaintiffs $257,586.12 on the note and

$51,014.78 in attorney fees. Defendants appeal, arguing that: (1) the trial court abused its

discretion when it arbitrarily disregarded evidence in favor of defendants; (2) the trial court erred

by denying their motion for a directed finding; and (3) the trial court erred by awarding attorney

fees. For the following reasons, we affirm.

¶2                                      I. BACKGROUND
2016 IL App (2d) 160022


¶3     Dolores and Edward are the parents of Gary, Gale, and Gregory, who is married to

Michelle.

¶4                                           A. Complaint

¶5     On April 30, 2014, plaintiffs filed a “Complaint on Promissory Note” against defendants,

alleging the following.        Dolores and Edward loaned defendants $357,586.12, and, in

consideration for the loan, defendants signed a promissory note executed on October 1, 2009,

and delivered, for value received.     Defendants “agreed to pay such Promissory Note under the

terms set out therein.”    On August 1, 2012, Dolores and Edward assigned the promissory note

to plaintiffs, “for consideration.” Defendants defaulted in payments owed on the promissory

note and refused to cure the default after a demand was made.           The default existed for more

than one year.    Plaintiffs sought principal, interest, attorney fees, and costs.

¶6     The promissory note, attached to the complaint, provides:

       “1. BORROWER’S PROMISE TO PAY

                 In return for a loan that I have received, I promise to pay U.S. $357,586.12 (this

       amount is called ‘Principal’), plus interest, to the order of the Lender.      The Lender is

       [sic] Edward S. Vician and Dolores M. Vician.            I will make all payments under this

       Note in the form of cash, check or money order. $100,000 of Principal Balance is

       waived if Note is PAID AS AGREED.

                 I understand that the Lender may transfer this Note.”

The promissory note contains two signature lines.            Defendants’ names appear under the

signature lines, followed by the word “Borrower.”       Signatures appear above the signature lines.

¶7                                          B. Bench Trial

¶8     A bench trial was held on November 30, 2015.           Dolores testified as follows.   In 1996

Dolores and Edward loaned Gregory $125,000, as evidenced by a 1996 mortgage signed by

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Gregory and notarized.     Dolores and Edward delivered the $125,000 to Gregory.    In addition,

Dolores and Edward made two loans to Gregory and Michelle: a loan for an undetermined

amount and, in November 2006, a loan for $130,000.

¶9     Dolores further testified that on July 27, 2009, she and Edward loaned Gregory and

Michelle $363,406.75, as evidenced by a mortgage signed by Gregory and Michelle and

notarized by Jan Risch.    On October 1, 2009, a promissory note was signed by defendants in the

presence of Dolores.   The promissory note was for a principal balance of $357,586.12, reduced

due to payments that Gregory had made on the July 27, 2009, loan and a lower interest rate.

Dolores created and kept a loan amortization schedule, and on this schedule and on a separate

ledger she recorded and gave credit for all payments made by Gregory and Michelle.     To make

payments on the loan, Gregory or Michelle deposited money into a Harris Bank account titled in

Gregory’s and Gale’s names.      The Harris Bank account statements were mailed to the home of

Dolores and Edward.       Dolores used the monthly statements to keep track of Gregory and

Michelle’s payments.      These statements contain account activity from May 23, 2008, through

August 22, 2011, and were admitted into evidence as plaintiffs’ exhibit No. 15.

¶ 10   Dolores also testified as follows. The Harris Bank statements indicated that Gregory

withdrew $16,908.71 from the account on August 3, 2011.          From September 2011 through

March 2012, Gregory made payments on the loan by mailing checks to his parents’ home.

Dolores deposited the checks and recorded the payments on her ledger and loan amortization

schedule.   After March 2012, neither Gregory nor Michelle made any payments on the loan.

The $16,908.71 that was withdrawn was never replaced.      Because of Gregory’s withdrawal, the

principal amount owed on the promissory note was the original amount, $357,586.12. Dolores

was willing to waive her right to interest on the promissory note from October 2009 to the date



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of judgment, but she was not willing to waive her right to postjudgment interest. Dolores

testified that she and Edward assigned the promissory note to Gary and Gale.

¶ 11       Gale testified as follows.   Gale recognized Gregory’s signature on the promissory note.

Dolores and Edward assigned the promissory note to Gale and Gary for $10.               Gale identified

the written assignment and recognized her signature on the document.                   The assignment

indicated that it was executed on August 1, 2012.        Gale testified that, after that date, defendants

made no payments to her.

¶ 12       Risch testified that she witnessed defendants sign the July 2009 mortgage.

¶ 13       Plaintiffs’ attorney, Ward Brown, testified regarding his fees.     The trial court admitted

his affidavit and attached time ledger.

¶ 14       At the conclusion of plaintiffs’ case-in-chief, defendants moved for a directed finding. 1

Defendants argued that plaintiffs failed to establish a prima facie case, because they failed to

establish, inter alia, that defendants received consideration for the promissory note.      Defendants

also argued that plaintiffs failed to prove that the signatures on the promissory note were valid.

Defendants concluded that “the Court cannot conclude that an enforceable promissory note

exists.”


           1
               We note that defendants stated in the trial court that they were moving for a “directed

verdict.” However, a party moves for a directed verdict in a jury trial (735 ILCS 5/2–1202 (West

2014)) and a directed finding in a bench trial (735 ILCS 5/2–1110 (West 2014)). Although it

would have been more appropriate for defendants to state that they were moving for a directed

finding, as a bench trial was held in this case, the content of a motion, and not its title or label,

determines its character. See 527 S. Clinton, LLC v. Westloop Equities, LLC, 403 Ill. App. 3d 42,

48 n.1 (2010).


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¶ 15   The trial court denied defendants’ motion for a directed finding, 2 explaining that “the

Plaintiffs have adequately established a prima facie case.” The trial court stated that Dolores’s

testimony was sufficient to establish that defendants received consideration.   The trial court also

stated that Dolores’s testimony that she personally witnessed Gregory sign the promissory note

was sufficient to meet “the burden of proof.”

¶ 16   Warren Spencer, an expert forensic handwriting and document examiner, testified on

behalf of defendants as follows. Spencer compared Gregory’s and Michelle’s signatures on

other documents to the signatures on the promissory note.      Spencer opined that the signatures

on the promissory note were not those of Gregory and Michelle.

¶ 17   Michelle testified as follows. Michelle never received a loan from Dolores or Edward.

Michelle never signed any document stating that she would pay money to Dolores or Edward.

Michelle did not sign the promissory note.       Michelle testified that the signature on the July

2009 mortgage was hers but that she did not sign the mortgage.

¶ 18   Gregory testified as follows.     Gregory did “not believe [he] signed” the July 2009

mortgage, because there were no witnesses.         Gregory testified that, although the signature

looked like his, he did not sign the mortgage.   Gregory did not receive $363,406 as indicated on

the mortgage.    Gregory testified that he did not sign the promissory note.    Although “they had

given [him] money,” he never received $357,000.        Gregory received “disbursements, and then

they tried to turn around and make up a sum.” Gregory did not bring any cancelled checks with

him to court.   When asked how much money he had paid back over time, Gregory replied:


       2
           Although the trial court adopted defendants’ term, “directed “verdict,” it applied the

two-step process applicable to a motion for a directed finding, pursuant to section 2-1110 of the

Code of Civil Procedure (735 ILCS 5/2-1110 (West 2014)).


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       “I could only go back seven years since 2012.     So, it’s 2005, and by that account, that

       Harris Bank account, I paid over $250,000 into that account.    There was still nine years

       missing that I couldn’t get to because the bank would only go back seven years.”

Gregory testified that “they’re missing” payments that he had made from 1996 through 2005.

Gregory testified that he continued to make payments even after plaintiffs filed their complaint.

Gregory testified that in August 2011 he withdrew $16,900 from the Harris Bank account.

¶ 19   During cross-examination, plaintiffs’ counsel asked Gregory, “How many records did

you bring to court to show the payments you made?” Gregory replied:

       “You have the Harris Bank statements which is where I made—according to my mom’s

       testimony, where I made my payments into, and those payments, I went back—[t]hose

       have seven years of statements there, and those show over $250,000 of just seven years

       of statements, not including the later payments that I continued paying, and not including

       nine years prior to, from ’96 to 2005.”

¶ 20   After considering the evidence, the trial court found in favor of plaintiffs and against

defendants and entered judgment in the amount of $308,627.90. In rendering its judgment, the

trial court found “that the witnesses for the plaintiff[s] were credible and consistent in their

testimony.” The trial court made the following findings. Dolores’s testimony established that

she entered into an agreement with defendants to lend them money.           The agreement was

memorialized by the promissory note, the mortgage, communications between the parties, and

payments made by Gregory. Dolores testified that she saw defendants sign the promissory note

and that she delivered the funds pursuant to “the agreement.” Dolores’s testimony was supported

by the testimony of Risch, an independent witness.

¶ 21   The trial court concluded as follows:



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       “[T]he court finds that there was an agreement and the delivery of $357,586.12, as

       memorialized by the note. The defendants failed to make payments on the note and,

       therefore, were in default.

               Again, the defendants claimed that—that they made payments and reduced that

       amount but didn’t produce any evidence of it.

               The note was subsequently assigned for valuable consideration to the current

       plaintiffs in this case.

               Further, Dolores Vician made a gift of $100,000 to the defendants, while she

       claimed [that] there were some conditions precedent to that gift. Those conditions were

       absent from the letter memorializing this gift.

               As such, the court determines that the hundred—one-hundred-thousand was

       intended as a contemporary—as a gift at the time and not one to be realized at a future date

       and reduces the debt accordingly.

               This leaves a total of $257,586.12.

               The note under which the suit was brought provided for attorney’s fees—and

       should suit on the new note be necessary. And as a result, the court awards plaintiffs

       $51,014.78 in fees, as that was supported by the testimony of Mr. Brown.

               For a total of $308,627.90.”

Defendants filed a timely notice of appeal.

¶ 22                                       II. ANALYSIS

¶ 23   As a preliminary matter, we note defendants’ counsel’s blatant violations of supreme

court rules in handling this appeal.    Most particularly, defendants’ statement of facts violates

Illinois Supreme Court Rule 341(h)(6) (eff. Jan. 1, 2016). Rule 341(h)(6) requires a statement of

facts that contains the facts “necessary to an understanding of the case, stated accurately and fairly

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without argument or comment.” Id. Failure to comply with the rules regarding appellate briefs

is not an inconsequential matter. Burmac Metal Finishing Co. v. West Bend Mutual Insurance

Co., 356 Ill. App. 3d 471, 478 (2005). Defendants’ “statement of facts” consists of less than two

pages of argument and fails to acquaint this court with the procedural history of the case, the issues

involved, or the evidence provided to the trial court. Accordingly, we express our displeasure

with defendants’ counsel, Ross S. Carponelli, and admonish him for failing to comply with Rule

341. Further, we strike defendants’ statement of facts. See Hall v. Naper Gold Hospitality LLC,

2012 IL App (2d) 111151, ¶ 9. Although defendants failed to provide this court with a sufficient

statement of facts, plaintiffs provided a summary of the relevant evidence in their response brief

and the issues raised by the parties are simple. Thus, our review is not hindered.

¶ 24                                  A. Trial Court’s Findings

¶ 25   Defendants first argue that “there should be a reduction in the judgment award by an

amount of $250,626.” Specifically, defendants contend that the trial court disregarded Gregory’s

testimony that he “paid over $250,000” on the promissory note and disregarded documentary

evidence, contained in plaintiffs’ exhibit No. 16, showing payments of $100,626.

¶ 26   We note that defendants misstate the standard of review. Defendants contend that the trial

court abused its discretion when it arbitrarily disregarded evidence in favor of defendants.

However, substantively, defendants challenge the trial court’s findings of fact and credibility

determinations.

¶ 27   In a bench trial, as here, the trial judge, is the trier of fact. Battaglia v. 736 N. Clark Corp.,

2015 IL App (1st) 142437, ¶ 23. The trial court is in a superior position to observe witnesses,

judge their credibility, and determine the weight their testimony should receive. Id. Therefore,

when we are faced with a challenge to the trial court’s judgment following a bench trial, we will

reverse that judgment only if it is against the manifest weight of the evidence. See id. A

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judgment is against the manifest weight of the evidence only when the opposite conclusion is

apparent or when the judgment is arbitrary, unreasonable, or not based on the evidence. Id. In

other words, if the record contains evidence to support the trial court’s judgment, that judgment

should be affirmed. In re Estate of Wilson, 238 Ill. 2d 519, 570 (2010).

¶ 28   In this case, defendants attempted to prove partial payment on the promissory note.

Payment on a promissory note is a defense that a defendant must prove by a preponderance of the

evidence. State Bank of East Moline v. Young, 149 Ill. App. 3d 460, 463 (1986).

¶ 29   The record supports the trial court’s finding that defendants failed to prove their defense of

payment.     Dolores testified that she kept records regarding defendants’ payments on the

promissory note. Dolores testified that, although for a certain time payments were made into the

Harris Bank account, Gregory withdrew the money he had paid into that account and then stopped

making payments. The record shows that the trial court found Dolores’s testimony to be credible.

The trial court is in the best position to evaluate the conduct and demeanor of the witnesses. Staes

& Scallan, P.C. v. Orlich, 2012 IL App (1st) 112974, ¶ 35. We give great deference to the trial

court’s credibility determinations, and we will not substitute our judgment for that of the trial

court. Id.

¶ 30   Contrary to defendants’ assertion, the trial court did not disregard Gregory’s testimony;

rather, it found him to be incredible.     The trial court noted inconsistencies in Gregory’s

testimony and stated that, although he claimed that he made “substantial payments, he was

unable to produce any records of same, being cancelled checks, despite having constructive

possession of these.” The trial court found that Gregory’s failure to produce these documents

compelled it to find that “the evidence probably would have been adverse to his position.” The

trial court also found that the “[o]bvious inconsistenc[ies] adversely affected [Gregory’s]

credibility.” Regarding defendants’ defense of payment, the trial court found that “defendants

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failed to make payments on that note and, therefore, were in default.”        It is not the role of this

court to substitute our judgment for that of the trial court on credibility determinations. See id.,

¶ 37. Accordingly, we accept the trial court’s credibility assessments.

¶ 31   In an effort to establish documentary proof of partial payment, defendants argue for the

first time on appeal that, “[c]alculated, the total amount of payments that were made towards the

‘note’ in [plaintiffs’ exhibit no. 16] was a total amount of $100,626.20.” However, defendants

have forfeited this argument, because it was not properly presented to the trial court. The record

shows that during closing argument defense counsel urged the trial court to credit defendants with

“[w]hatever the total amount is contained in those documents [having] a guesstimation [sic] of

$250,000.” We determine that this and other similarly vague statements did not properly present

the issue before the trial court. Accordingly, this argument is forfeited. See Coghlan v. Beck,

2013 IL App (1st) 120891, ¶ 31 (failure to raise an issue before the trial court forfeits that issue on

appeal).

¶ 32   Even if defendants had preserved this issue in the trial court, they have forfeited it because

they have failed to properly cite the record to support their argument. Illinois Supreme Court

Rule 341(h)(7) (eff. Jan. 1, 2016) provides that the appellant’s brief shall include argument

containing the appellant’s contentions, the reasons therefor, and citation of the authorities and the

pages of the record on which the appellant relies. Plaintiffs’ exhibit No. 16 consists of hundreds

of pages of defendants’ bank records, yet defendants cite the entire exhibit to support their

argument that they paid $100,626 on the promissory note. We have no obligation to sift through

this voluminous exhibit to find a basis to reverse the trial court’s finding of fact. See Qualkinbush

v. Skubisz, 357 Ill. App. 3d 594, 616 (2005) (it is not a reviewing court’s function or obligation to

search the record for error). Accordingly, for this additional reason, defendants’ argument



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regarding plaintiffs’ exhibit no. 16 is forfeited. See People v. Universal Public Transportation,

Inc., 2012 IL App (1st) 073303-B, ¶ 50.

¶ 33   Plaintiffs established through testimony and documentary evidence that defendants failed

to make payments on the promissory note after March 2013. Defendants produced no evidence

corroborating Gregory’s testimony to support their defense of payment. Gregory testified that he

could not obtain bank records from prior to 2005. This did not explain Gregory’s failure to

produce proof of payment on the promissory note executed in October 2009. “An unfavorable

evidentiary presumption arises if a party, without reasonable excuse, fails to produce evidence

which is under his control.” (Internal quotation marks omitted.) Fontana v. TLD Builders, Inc.,

362 Ill. App. 3d 491, 504 (2005). Considering that defendants bore the burden of proof on their

defense of payment, and that the evidence presented required the assessment of documentary

evidence and witness credibility, we conclude that the trial court’s finding that defendants failed to

prove partial payment on the promissory note is not against the manifest weight of the evidence.

¶ 34                              B. Motion for Directed Finding

¶ 35   Next, defendants argue that the trial court erred by denying their motion for a directed

finding. In all cases tried without a jury, the defendant may move for a directed finding in his or

her favor at the close of the plaintiff’s case. 735 ILCS 5/2-1110 (West 2014). In ruling on such

a motion, a court must engage in a two-step analysis: (1) the court must determine as a matter of

law whether the plaintiff has presented a prima facie case, meaning, whether the plaintiff

presented some evidence on every element essential to the cause of action; and, (2) if the plaintiff

presented some evidence on every element, the court then must consider and weigh the totality of

the evidence presented, including evidence that is favorable to the defendant. 527 S. Clinton, 403

Ill. App. 3d at 52. “After weighing all the evidence, the court should determine, applying the

standard of proof required for the underlying cause, whether sufficient evidence remains to

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establish the plaintiff’s prima facie case.” Id. (citing People ex rel. Sherman v. Cryns, 203 Ill. 2d

264, 276 (2003)).     If the trial court finds that sufficient evidence remains to establish the

plaintiff’s prima facie case, the court should deny the defendant’s motion and proceed with the

trial. Cryns, 203 Ill. 2d at 276. Generally, evidence examined under the second prong must

prove the plaintiff’s case by a preponderance of the evidence.          Law Office of Colleen M.

McLaughlin v. First Star Financial Corp., 2011 IL App (1st) 101849, ¶ 40. We will not reverse

the trial court’s decision denying a defendant’s motion for a directed finding, unless it is contrary

to the manifest weight of the evidence. Id. ¶ 39 (citing Cryns, 203 Ill. 2d at 276).

¶ 36   In this case, defendants argue that plaintiffs failed to establish a prima facie case to

recover on the promissory note, because there was no evidence of consideration.          Defendants

contend that such evidence was lacking because there was “no written documentary evidence

that demonstrates [that] all $356,586.12 was delivered to Defendants.”        However, defendants

fail to recognize that consideration for a negotiable note is presumed and that the burden is on the

defendant to show its absence. Burke v. Burke, 89 Ill. App. 3d 826, 829 (1980). Thus, plaintiffs

did not need to present any evidence of consideration to establish a prima facie case.

¶ 37   Although plaintiffs were not required to present evidence of consideration, they did so.

Dolores testified that she delivered payment to defendants on the promissory note.       In denying

defendants’ motion for a directed finding, the trial court found, based on Dolores’s testimony,

that plaintiffs established consideration.     Accordingly, the trial court’s decision denying

defendants’ motion for a directed finding is not against the manifest weight of the evidence.

¶ 38   Defendants cite Leopold v. Halleck, 106 Ill. App. 3d 386 (1982), for the proposition that

“the presence of a negotiable instrument is vital in a suit for breach of a promissory note under

the Uniform Commercial Code [section 3-104].” This is a truism, indeed, but it does not



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require a plaintiff to prove consideration in its case-in-chief to avoid a directed finding in

defendants’ favor.

¶ 39                                     C. Attorney Fees

¶ 40   Defendants argue that the trial court erred by awarding attorney fees. Defendants argue

that, although section 6(E) of the promissory note allows for recovery of attorney fees, plaintiffs

failed to meet the requirements of that section. Section 6 of the promissory note provides, in part:

       “6. BORROWER’S FAILURE TO PAY AS REQUIRED


                                                   ***


               (B) Default

                       If I do not pay the full amount of each monthly payment on the date it is due,

               I will be in default.

               (C) Notice of Default

                       If I am in default, the Note Holder may send me a written notice telling me

               that if I do not pay the overdue amount by a certain date, the Note Holder may

               require me to pay immediately the full amount of Principal which has not been paid

               and all interest that I owe on that amount. ***

                                                   ***

               (E) Payment of Note Holder’s Costs and Expenses

                       If the note holder has required me to pay immediately in full as described

               above, the Note Holder will have the right to be paid back by me for all of its costs

               and expenses in enforcing this note to the extent not prohibited by applicable law.

               Those expenses include, for example, reasonable attorney’s fees.”

¶ 41   For the first time on appeal, defendants argue that the requirements of section 6(E) were

not satisfied, because the notice of default or “acceleration letter” failed to state the amount

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defendants owed and failed to account for the $250,000 they had already paid. Defendants’


argument regarding the sufficiency of the notice of default is forfeited because they raise it for the


first time on appeal. See K&K Iron Works, Inc. v. Marc Realty, LLC, 2014 IL App (1st) 133688,


¶ 25 (arguments not raised in the trial court are forfeited and cannot be raised for the first time on


appeal). We also note that the acceleration letter was admitted into evidence without objection by


defense counsel and states the full principal balance due on the promissory note.                Thus,


defendants’ argument regarding the sufficiency of the acceleration letter has no merit.


¶ 42   Finally, defendants argue that the trial court’s award of $51,014.78 in attorney fees is


“totally and completely unreasonable.”        Defendants failed to contest the reasonableness of


plaintiffs’ claim for attorney fees in the trial court and failed to object to the admission of Brown’s


affidavit and attached time ledger regarding his fees. Accordingly, this issue is forfeited. See id.


¶ 43                                     III. CONCLUSION


¶ 44   The judgment of the circuit court of McHenry County is affirmed.


¶ 45   Affirmed.





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