proceed the st is the jurisdictional issue that the court has raised if it wants to hear argument on that are satisfied what we submitted in writing the nd is the law of presumed fraud generally under illinois law and then the rd is the application of the presumed law to the facts as we've alleged in our citation so on the jersey i guess i apologize for asking the court a question but should i address the jurisdictional orally or what is what we submitted in writing sufficient to the court i think you better address it ok well thank you it was the understanding of all of the parties on january th that the trial court dismissed the citation as evidence for that we would cite one my statement during the argument where you want me stop you right there are you where supreme court really doesn't care what the honor so i guess that i will i will cut to the chase on the april th order i believe is a stand alone order by dismissing the citation in its entirety it is a final order and it is appeal independent of the january th dismissal without prejudice the april th order says it isn't back dismissing the citation is entirety and i'm not aware of any rule that says in dismissing a citation  or complaint that the trial court has to enumerate each of the several counts within it as dismissed but rather may in fact dismiss its entirety so the point i was trying to make your honor and i apologize was either the april th clarif the understanding the court's understanding the trial court's understanding of january th or the april th order was a standalone order by saying it was dismissing the citation in its entirety and based upon that i believe the april  order is itself final understanding of course that is referring back to the january th and certain portions but it does have standalone language that's our position as to why it's file your honor consul i think you just touched upon the point that fact the final order it is i think the confusion that it's referencing the prior dismissal where and i will be honest to the court when i received the order to show cause i went back and search the transcript i myself was very surprised that the word dismissed did not occur in the transcript so i'm not disputing at all that the january the language of the january th hearing did not execute a dismissal using that language but again i think the april  th order does on its face saying by is dismissing in its entirety and to the extent that it's clarifying what the trial court's understanding of january th was can i just just bring up one other issue and i  so and i think that is in fact the language if i if i that's the language i understood the order to show cause was most troubled by in that it was converting a dismissal that wasn't facially a dismissal and to the extent that the st order was in fact an interlocutory order that can be clarified amended modified by any later order by the trial court i think that's one way when it when it's convert the trial court is imparting its understanding of its own order when it references it's saying on converting that dismissal it understood the order to be a dismissal even if it didn't say it and i think that's within the purview of the trial court to make that statement and again independently i do think the april th ends on its own but i also think the able six can clarify a non final order to the extent that it did it with that with the language about dismissing in its entirety with prejudice let me ask one final question on this it seems to me in your argument in the reading of judge weber's order that one could on most sense to do word converted the court was thinking other than from the language itself there is no order from january th there's the transcript of the docket entry and did the dismissal language get lost in the translation of the hearing to the docket entry perhaps but i think the remainder of the april th order including the preamble including a recitation of the docket to the telephone conference demonstrates i think the truck was understanding so i think it would be fair to say you could read it as a memorializing though i don't want to say specifically that the trial court use that language with that specific intent but i think it's fairly read that  and i said that was my last question but i guess that back harking back to justice turns question is that is are we to take the position to mean to glean what in fact the court was attempting to do or memorialize i think if i'm reading the to read a line from the april th order and i think has the converted language in it i think the court is referencing it says the dismissal of petitioner citation recover assets is hereby converted to a dismissal with prejudice i don't even know that the hereby converted is essential for the ruling in finale of the trial court's order i think the language dismissal with prejudice i think that language counsel the transcript does not give the reason for dismissal the transcript of these two counts that are the subject of this appeal only addresses the presumption it says nothing about dismissal that camaraderie and there's nothing in there the transcript the argument for counts one in two and the basis for the read the potential replete ing was the the argument put forward by petitioners before the trial court is the only way at that argument that we could sustain counts one dollar and two dollars was that with the presumption of fraud and so that was the only issue that the court heard argument on because if there was no presumption of fraud what was argued to the trial court and that's what and the fact that's what our brief is on our brief is on the presumption of fraud so i think the briefs we filed have tracked what we've argued before the trial court on january t that was and so to finish just the narrative that's why at that hearing i said i would plead them again putatively understanding that they would be dismissed again so we were thinking is there a way we could plead what we might just call straightforward and to influence with facts of one to influence and we could not in good faith do that and so that's it was a presumption argument that's all that was discussed because that was the basis of sustaining claims and that was that when it was denied that would have been the basis of the dismissal of the claims of what happened on february th february th there was a telephone conference with the court where we informed the court that we were not in fact going to replete and that we would take the dismissal with prejudice from that point forward there was no transcript of the telephone conference and then the april th order is a memorial report section my understanding is it has to be someone not a party to the case that i don't know that a bystander's report can be done by counsel if i think that's a smart recollection i don't know that i can do a bystander's report as to what took place i didn't i think i'll speak frankly i didn't think it was necessary because there'd be a court order following memorializing that would be why i didn't at the time think to do one but my understanding of bystanders i think it has to be someone eighteen and over not affiliated with the action but i apologize for not knowing an opinion needs to make sure that it has proper jurisdiction so the next section i want to talk about is the law of presumed fraud and the focus on want to direct on the court is who is doing the transaction and there's two types of presumptions there's a presumption of underwent fluence and there's a presumption of fraud the presumption of undue influence applies when the person who property is being transferred does the transferee so in this case if john had transferred a bank account to mary himself that would be a potential undue influence claim because it is him doing the transaction but the claim would be that his will was usurped by unto influence there is a presumption of money to influence in fiduciary cases there is case law in illinois that says in presumption of under owner of the property the nd type of case is the presumption of fraud case where the transfer or is the recipient of the property and that those types of transfers have been treated differently by illinois c so that would be a situation of two sorts one someone as an agent uses the agency relationship to transfer property from the individual to herself or to someone else the other would be while being a fiduciary takes a joint asset and makes it unit unitary in that person's own account and i'll talk about the two cases now that that address that marriage and decent as a thirty nine year marriage and that is to say that simply because you've been married a long time even if it's a st spouse not a nd spouse or a rd spouse the rule applies if you are a fiduciary that the length of the marriage is not a shield if you are a fiduciary so in both simon and decent they express we find that the marital relationship does not preclude the presumption of fraud in simon and decent there was a written power of attorney that established the persons for due sherry status there is no dispute that we have a written power of attorney here there's also no dispute that there were certain actions taken under the power of attorney by mary we're not saying that all of the actions taken by marius power of attorney represent to be fraudulent but just that she was in fact fiduciary for purposes the presumption analysis the power of attorney contrary to what is i think suggested by respondent and this is on page five hundred of the simon opinion is not simply st date planning in fact the power of attorney in simon is to quote manage their property close quote address estate planning and medicare so it is a broad purposed power of attorney not unlike the broad power of attorney here in simon what the court said was because the husband was a fiduciary underwritten power of attorney when he took the joint bank accounts and took the money out of the joint bank accounts and made that joint money his own he severed the joint tenancy resulting in a benefit to himself and a detriment to his wife that transfer sever a joint bank account that is presumptively fraudulent and the poor goes on to say and simon but of course he gets a chance to rebut that the other thing that simon says that's important is in simon he says the gentleman who transferred the property from his his deceased wife says well i would have got it anyway because when she died it would have come to me so no harm no foul in the court expressly rejects that on page five hundred and three and says no we don't buy the no harm no foul because had he died st the money was already taken out of the estate and couldn't pass to her rightful heirs because here is wider outer presumption of guilt only applies in the un to influence cases because it's the person the owner of the property transferring or gifting the property there's no gift in a presumptive fraud plate case because the recipient is the is effect the donor or there's no don't nor in a presumption of fraud case so there won't be a discussion of presumption of gift in a presumption of fraud case if that makes sense if simon is quoted but not criticized him to heart in two thousand and thirteen and i think that would have been the place for the illinois supreme court to say simon was wrongfully decided rather than rather than with approval and the only just so we're clear the only reason we said it to heart is an undue influence case and the only reason we cited that was to to have something on par at the supreme court level saying the presumption of fraud never applies because case in peace and what happens indecent is slightly different what he does is he actually uses his agency document to transfer property that is not in fact his that is his wife's to himself and indecent none of the parties this is on page six hundred and thirty seven of the court's opinion they didn't challenge the presumption the trial court found that the presumption applies to the transactions what happened in that case is when he transferred them from his wife's name he put them jointly with himself and his daughter and he subsequently passes so the person left rebutting the presumption given that my time is running low i will not get to the application but to the extent that there is cause to do that fall away mr thesis presentation i will i will do so that thank you  yes i think it can fairly be read that way and i particularly point to the request to amend which i would read as an admission that citation as stated at that point did not state a claim and so they were requesting to amend it mary produced over twenty thousand pages of documents answer two hundred and ten in tauranga tori's and sat for deposition and the trial court ruled that that discovery that it any requirement that she account for what happened during the marriage the citation to recover is a backdoor way around that ruling seeking to force mary to account for every dollar that was spent out of john and that's really in addition to the other problems an attempt to subvert normal requirements of which means despite the twenty thousand despite mary's test i didn't run they can to lead with any more specificity what went wrong with the standing of john's death that they can't say anything beyond participate in the proceeding below but did not file a notice of appeal and did not submit a brief or even found appearance before this court and that's a sign that the minister having reviewed all of the facts did not believe it was in the state's best long as you use state enough facts to state a claim without the benefit of the presumption all we're saying is that saying in a claim required more of them simply a listing of assets and saying that various some cannot account for more  required the nd point is that the consistent message of elena case law is that marriage is different this is the overriding principle that comes out of the meta wold and maka that the unique intimacy transfer the married couple finances are extremely into intertwined many spouses fund their common expenses from one or both of their own individual assets and that's particularly true when they're living together in the same household finance every day life style so in the context of such a marriage a transfer of one thousand joint checking account is much more likely to be simply a transfer to a normal household and it is to be one s stealing from the other and the presumptions in the last would reflect that reality fact that a spouse is are moving money into a joint checking account a household expenses are not going to assume there's anything wrong with that unless it's demonstrated by the allegation mary were misappropriate in the ons isner should be able to make allegations about how the expenditures out of the joint checking account or out of john's other investment accounts were not proper they should be able to say you know here's this twenty thousand dollars mar stands on her vegas vacation that she sent to these are lacking there are no allegations like that about how fun events were were in appropriately so if there's going to be a presumption of fraud in such cases spent show that there was no fraud that's ridiculous burden on marriage that cannot be justified and yet it is what the petitioners are hoping to impose on married point is to say that i don't presumption of fraud because some of the concerns i've just listed about common household expenses are no longer a problem the supreme court case and the heart i think points in this direction in the end do influence contexts where it says  the presumption should be applied with caution to marital relationships so you know there could be conceivably a situation in which it might apply this case is not that if you want to drop these and verses  to transfer assets of his wife to his daughter now of course none of the policy considerations i just listed about a married couple having shared common expenses in their household are implicated by that it's a different situation when you simply money out of your to simon and i want to correct something the council said about simon simon said the case was about joint bank account and that's not correct it was about assets held in joint tenancy but they were security held jointly  not case the wife told her husband explicitly that she wanted to leave her office up including the securities that we're talking about to her daughter and her grandchildren page five hundred and one of the opinion and it was on the basis of that request and the husband's acknowledgement of it that she granted him the power of attorney and said i want you to go affect my estate planning do it the way i want my assets to my daughter and my grandma and my husband then went and disobeyed that direct request from his wife and he transferred the securities out of joint tenancy and do his own name again in direct contradiction of his wife's explicit instructions that recitation of the facts really raises three distinctions with the  one is that here there were no explicit instructions from john to marry number two here we're talking again about transactions over the course of at least seven years where mary is managing the marital finances and keeping the household running  and their common expenses we're not talking about a one time transfer of one million three hundred and forty thousand dollars which is what happened and simon and three in our case the pure way were granted years before any of the transactions that issue not immediately prior to  presumption of gift was over common that that's more appropriate than reading at the say that the presumption of fraud applies to every married couple where the facts are not at one time transferred over a one million  dollars so for these reasons we think that the presumption of fraud cannot and should not apply in this case and again the best demonstration of policy consequences that would flow from from applying a presumption of fraud is this case itself and the burden that it would place on married to justify every transaction or marriage but regardless of what you decide on the presumption and it's moving into the nd part of our brief petitioners argument cannot proceed and that's actually a pretty straightforward claim many of their allegations have been given up by admission i want to talk about st they now admitting their reply brief that even if the presumption applies it only applies to actions that mary took as the agent of the power of attorney it does not apply they now admit the actions that john i think i heard counsel say today that included john transferred to bank account very well he did he transfer the joint bank account in his own name finding individually in her name that was something mary again transactions related to the mortgage taken out on their marital home john find that mortgage by itself mary did not and all of the transactions related to the morgan stanley ira and the other investment account that morgan a chunk of the second point if you look at reply their reply brief thirteen is that they also admit that the presumption applies only to quote dealing this means that mary has to benefit from the and again the documents attached to the citation show that those proceeds from that sale were deposited into john's account not to mary's account not to a joint account there's no allegation that those transferred benefit benefited mary in any way mary sold it and took all the money for the allegations and there's no allegation whatsoever about how much money each of the house allegation is no basis to believe that the way mary handled the proceeds from the sale benefited court thank you thank you well here rebuttal thank you and i apologize i don't believe i referred to the any of the orders as agreed but if i did so i by no means meant to convey that impression on the last point on the well of the st point i want to make is simon don't with joint securities joint savings and there's no discussion in simon or any case discussing simon saying that it somehow is different than joint bank accounts in vogel simon and usin are the two leading cases that say when you are fiduciary it's not just the john's bank account individual back out to her individual bank account she has to account for that that's presumptively fraudulent that doesn't mean she can't explain it it doesn't mean she can't point to her accounting and say here's the accounting and here's how i explain that but she was a fiduciary in november th she effectuated the transfer is a fiduciary and the money went from his account to her account she has to account for that to the extent that there are horizon bills all she has to say after the two thousand six hundred and fifteen is all of these rising bills were spent for the two of us in almost all likelihood the presumptions were bought it but there is more work to be done for example on the twenty three thousand dollars and as to the sale of the home here's what happens on the sale of the home and we document this in our citation page twenty six dollars it's the record of seaton sixty three  house sells and there's three hundred and sixty thousand in proceeds the one hundred and seventy thousand dollars is deposited back into john's account as it should but then on page twenty six triple i see then transfers the remaining one hundred and ninety one thousand and two her individual bank account that's a problem that's that's not grocery shopping that's a big number she has to account for that and if her accounting which the court deemed was sufficient does it readily then mary shouldn't have a problem once the sixty one dollars foot once the we get into discovery saying look here's my accounting line sixteen this explains why i got the one hundred and ninety one thousand dollars remember this is a joint asset that at that point the profit was converted to hers alone that transaction alone is enough to satisfy and get past the six  fifteen are there transactions that perhaps wouldn't be replanted i suspect there's a few are there transactions that she can show or rebutted i suspect there are a few but i do believe the transaction such as her transferring money from his individual account to her account and her taking joint proceeds of a sale of real estate and putting her account only those are the sorts of actions that a fiduciary has to explain and that's why i go back to in fact meet is a construct of trust case of a forty year marriage decent forty year marriage simon forty year marriage just because you've been married a long time just because you took care of your spouse doesn't mean you have to apply you don't have to account for the actions you took while a fiduciary that is all we're saying is that we get past the dismissal stage and we here and then we go forward and marry rebuses she can so for the reasons we've stated here and for the