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                                  Appellate Court                            Date: 2019.03.27
                                                                             13:35:12 -05'00'



             Brenner v. Evelyn Statsinger Trust, 2018 IL App (1st) 180131



Appellate Court       ARIEL BRENNER and TERRY BRENNER, Plaintiffs-Appellees, v.
Caption               THE EVELYN STATSINGER TRUST and RICHARD GRAY
                      GALLERY, Defendants-Appellants.



District & No.        First District, Second Division
                      Docket No. 1-18-0131



Filed                 November 20, 2018



Decision Under        Appeal from the Circuit Court of Cook County, No. 2016-CH-08145;
Review                the Hon. Neil H. Cohen, Judge, presiding.



Judgment              Affirmed.


Counsel on            Martin A. Blumenthal, of Northfield, for appellants.
Appeal
                      Goodman Tovrov Hardy & Johnson, LLC, of Chicago (Adam
                      Goodman, of counsel), for appellees.



Panel                 PRESIDING JUSTICE MASON delivered the judgment of the court,
                      with opinion.
                      Justices Pucinski and Hyman concurred in the judgment and opinion.
                                              OPINION

¶1       After a bench trial, the circuit court declared that plaintiffs-appellees, Ariel Brenner and
     Terry Brenner, were the rightful owners of certain works of art created by Evelyn Statsinger
     and that defendants-appellants, the Evelyn Statsinger Trust and Richard Gray Gallery, had no
     ownership interest in those artworks. Defendants appeal, contending that Statsinger’s
     possession of the artworks for nearly 20 years prior to her death created a legal presumption of
     ownership and that plaintiffs adduced no competent evidence to rebut that presumption. We
     disagree and affirm.
¶2       In 2016, Ariel and Terry filed this lawsuit seeking a declaration that they were the owners
     of the artworks and seeking their return. After defendants’ motions to dismiss and for summary
     judgment were denied, the matter was set for trial.
¶3       No court reporter was present for the bench trial. Only Ariel and Terry testified. They were
     not cross-examined, and other than two exhibits—the provenance of one of the artworks and
     the consignment agreement with the gallery—defendants presented no evidence. We draw the
     following facts from a bystander’s report in the record.
¶4       In the 1950s or 1960s, Daniel and Rachel Brenner, parents of Ariel Brenner and her late
     brother, Jonathan Brenner, purchased four works of art from Statsinger: “Final Burial of a
     Very Young Dead One,” “Land and Sea,” “Composition,” and an unnamed piece, “Untitled.”
     From the time of their purchase until approximately 1996, the artworks were displayed in
     homes owned by the Brenners in Chicago and Door County, Wisconsin. Statsinger and the
     Brenners were friends. Daniel Brenner died in 1977 and Rachel Brenner died in 1990. Ariel
     and Jonathan inherited the works after Rachel’s death. Jonathan died intestate in 2010, leaving
     his widow, plaintiff Terry Brenner, as his only heir.
¶5       At some point in 1996, the works were transferred to Statsinger. The transfer took place in
     Door County at the home formerly owned by Daniel and Rachel. Ariel was aware that
     arrangements had been made to transfer the artworks to Statsinger, but she was not present
     when the transfer took place. As reflected in a photograph taken that day (which is not in the
     record), Terry, Jonathan, their young daughter, Statsinger, and Statsinger’s husband were
     present when the artworks were transferred. Terry believed the artworks were loaned to
     Statsinger to facilitate a long-contemplated retrospective of her career. Ariel never agreed to
     gift her interest in the artworks to Statsinger. Statsinger retained possession of the works until
     her death in February 2016.
¶6       In 2015, the Richard Gray Gallery agreed to mount a retrospective of Statsinger’s work.
     Valerie Carberry, an employee of the gallery, visited Statsinger at her home several times
     before the show and observed the works transferred to her by the Brenners, among others,
     prominently displayed on her walls. When Statsinger consigned the works to the gallery, she
     signed a document representing that she owned all the works. All of the artwork later displayed
     at the gallery was listed for sale. Ariel attended the show and discovered that, with the
     exception of “Composition,” which was not on display, the remaining artworks transferred to
     Statsinger were offered for sale.
¶7       The trial court ruled in favor of plaintiffs, and defendants timely appealed.
¶8       Defendants contend the standard of review is de novo; plaintiffs do not address the
     standard of review in their brief. We disagree that de novo review applies. Because this case


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       was resolved after trial and involves the trial court’s assessment of the evidence presented by
       the parties, the appropriate standard of review is whether the result is against the manifest
       weight of the evidence. Konfrst v. Stehlik, 2014 IL App (1st) 132113, ¶ 11 (trial court’s
       findings that property belongs to a particular person will not be disturbed unless contrary to the
       manifest weight of the evidence). A decision is against the manifest weight of the evidence
       only where the opposite conclusion is apparent or where the court’s findings are arbitrary,
       unreasonable, or not based on the evidence. Id. We afford deference to the trial judge’s factual
       findings because he or she “was in a superior position to judge the credibility of the witnesses
       and determine the weight to be given to their testimony.” Buckner v. Causey, 311 Ill. App. 3d
       139, 144 (1999); Konfrst, 2014 IL App (1st) 132113, ¶ 11.
¶9         Generally, a presumption of ownership arises from possession of property. People v. Four
       Thousand Eight Hundred Fifty Dollars ($4,850) United States Currency, 2011 IL App (4th)
       100528, ¶ 17; Gilbert v. National Cash Register Co., 176 Ill. 288, 297 (1898) (“The party in
       possession of personal property is presumed to be the owner of it, possession being one of the
       strongest evidences of title to personal property.”).
¶ 10       But if the party challenging the presumption of ownership arising from possession presents
       evidence to rebut the presumption, the presumption ceases to exist. “[O]nce evidence is
       introduced contrary to the presumption, the bubble bursts and the presumption vanishes.”
       Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 462 (1983); Swiecicki v.
       Swiecicki, 255 Ill. App. 3d 1037, 1040 (1994) (son claimed $20,000 given to him by his father
       was a gift rather than a loan: “Even if we assume that a presumption of a gift has been raised by
       the defendants, it ceases to operate once contrary evidence is introduced.”). If evidence
       rebutting the presumption is introduced, then the case is decided on basis of evidence presented
       at trial as if no presumption had ever existed. Franciscan Sisters, 95 Ill. 2d at 460 (citing
       Diederich v. Walters, 65 Ill. 2d 95, 100-01 (1976)).
¶ 11       The party challenging a presumption must adduce evidence “ ‘sufficient to support a
       finding of the nonexistence of the presumed fact.’ ” Id. at 463 (quoting Michael H. Graham,
       Presumptions in Civil Cases in Illinois: Do They Still Exist? 1977 S. Ill. U. L.J. 1, 24). The
       quantum of evidence necessary to rebut a particular presumption “is not determined by any
       fixed rule” (id.) and depends on the circumstances of each case (id. (citing Wunderlich v.
       Buerger, 287 Ill. 440, 445 (1919))). For example, when a substantial bequest is made to the
       testator’s attorney under a will, a strong presumption of undue influence arises, and the
       evidence necessary to rebut that presumption must be clear and convincing. Id. at 464-65. In
       contrast, where, as here, no fiduciary relationship exists between the parties, the degree of
       proof necessary to rebut the presumption of ownership arising from possession of personal
       property is correspondingly lower.
¶ 12       If the presumption of ownership based on possession of property ceases to exist, the
       possessor of property who claims that the property was a gift must establish by clear and
       convincing proof the donor’s intent to make a gift. Schramm v. Schramm, 13 Ill. 2d 281, 288
       (1958) (“It has many times been stated by this court that to establish a gift the proof must be
       clear and convincing, and the burden is upon the alleged donee to prove the existence of a
       donative intent.”); Koerner v. Nielsen, 2014 IL App (1st) 122980, ¶ 13 (in replevin action,
       once plaintiff makes a prima facie showing of entitlement to possession, burden shifts to
       defendant to establish by clear and convincing evidence that property was a gift). Clear and
       convincing evidence is defined as “the quantum of proof that leaves no reasonable doubt in the

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       mind of the fact finder as to the truth of the proposition in question.” Bazydlo v. Volant, 164 Ill.
       2d 207, 213 (1995). It is something “more than a preponderance while not quite approaching
       the degree of proof necessary to convict a person of a criminal offense.” Id.; see also In re D.T.,
       212 Ill. 2d 347, 362 (2004).
¶ 13       Defendants correctly argue that plaintiff bore the burden to rebut the presumption of
       ownership arising from Statsinger’s possession of the artworks for nearly 20 years before they
       were consigned to the gallery. Defendants maintain that plaintiffs failed to present evidence
       sufficient to rebut the presumption. We disagree.
¶ 14       The artworks were purchased by Daniel and Rachel Brenner and they passed by
       inheritance to their children when Rachel passed away in 1990. When those works were
       transferred to Statsinger in 1996, it was Ariel and Jonathan’s intent that was relevant, and
       according to the bystander’s report, Ariel did not intend to gift her interest in the works to
       Statsinger in 1996 and, as far as Terry understood, neither did Jonathan. See Koerner, 2014 IL
       App (1st) 122980, ¶ 19 (donative intent determined at the time of the transfer of property). The
       affirmative testimony of one of the owners of the artworks that when they were transferred in
       1996, she did not intend to gift the works to Statsinger, which the trial court was entitled to and
       did accept, is a strong indication that no gift was intended. Particularly since defendants
       elected not to cross-examine either Ariel or Terry, once this evidence was presented to the trial
       court, the presumption arising from Statsinger’s physical possession of the works ceased to
       operate. It was then defendants’ burden to show by clear and convincing evidence that the
       transfer was intended as a gift. Given that (i) Statsinger’s longstanding possession of the
       works, standing alone, could not satisfy defendants’ burden and (ii) defendants presented no
       other evidence of donative intent, it necessarily follows that the trial court correctly ruled in
       favor of plaintiffs.
¶ 15       Both parties were constrained in proving their respective positions by the provisions of the
       Dead Man’s Act (735 ILCS 5/8-201 (West 2016)). The trust was defending as a representative
       of Statsinger. Jonathan, one of the claimed donors, was deceased, as were Statsinger, the
       alleged donee, and her husband, who was present when the works were transferred in 1996.
       There was clearly more to the story than was presented to the trial court. For example, the
       complaint contained detailed allegations of conversations between Ariel and Statsinger
       regarding the loan of two of the works for the retrospective and between Rachel and Statsinger,
       before Rachel’s death, regarding the loan of two other works. Also, defendants identified in
       discovery a third party who drove Statsinger and her husband to pick up the works in 1996 who
       testified in a deposition to overhearing conversations between Ariel (who was not present at
       the time of the transfer) and Statsinger indicating that Ariel was giving Statsinger the works
       because she had no place to display them. Any effort by defendants to introduce evidence
       favorable to their position and involving conversations with Statsinger regarding the transfer
       of the works would have opened the door to other unfavorable evidence. Id. § 8-201(a). (“If
       any person testifies on behalf of the representative to any conversation with the deceased ***
       or to any event which took place in the presence of the deceased ***, any adverse party or
       interested person, if otherwise competent, may testify concerning the same conversation or
       event.”). So the trial court was required to decide the case on the limited evidence presented.
¶ 16       With respect to the only live testimony considered by the trial court, defendants contend
       that Ariel and Terry offered “self-serving” testimony. Attaching that label to evidence
       presented by a party is largely meaningless because, without more, all it implies is that the

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       party adduced evidence favorable to its legal position. Both Ariel and Terry were competent to
       testify regarding donative intent at the time the works were transferred to Statsinger, which
       was the issue the trial court was called upon to determine. Further, it would have been obvious
       to the experienced trial judge that Ariel and Terry stood to gain if he found their testimony
       credible. And while Terry testified to her “impression” that the works were being loaned to
       Statsinger for display in an anticipated retrospective, Ariel affirmatively testified that she
       never agreed to gift her interest in the works to Statsinger. This evidence was competent and
       sufficient to overcome the presumption of ownership resulting from Statsinger’s possession of
       the artworks.
¶ 17       The trial judge, who heard and assessed the credibility of the witnesses, was entitled to
       credit Ariel and Terry’s testimony over defendants’ assertion that Statsinger’s physical
       possession of the artworks and her representation to the gallery that she owned them was
       sufficient to establish donative intent. Consequently, the trial court correctly declared plaintiffs
       the rightful owners of the artworks.

¶ 18      Affirmed.




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