                                      2018 IL App (1st) 180131


                                                                               SECOND DIVISION
                                                                                November 20, 2018

                                            No. 1-18-0131

ARIEL BRENNER and TERRY BRENNER,                               )
                                                               )       Appeal from the
                                                               )       Circuit Court of
          Plaintiffs-Appellees,                                )       Cook County, Illinois
                                                               )
v.                                                             )       No. 2016 CH 08145
                                                               )
EVELYN STATSINGER TRUST and                                    )       Honorable
RICHARD GRAY GALLERY,                                          )       Neil H. Cohen,
                                                               )       Judge Presiding.
          Defendants-Appellants.                               )


          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
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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

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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 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.”).



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¶ 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

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(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 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

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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



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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 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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