## I LLINOIS 

## O FFICIAL 

## R EPORTS
Appellate Court

Gonzalez v. Second Federal Savings & Loan Ass’n , 2011 IL App (1st) 102297

Appellate Court Caption RAFAEL GONZALEZ , Plaintiff-Appellee, v. SECOND F EDERAL SAVING S AND LOAN A SSOCIATIO N, Defendant-Appellant (Hecto r Gonza lez, Individually , and as Executor of the Estat e of Juana Gabriel a Martinez, Third-Party De fendant).

District & No. First District, Sixth Division Docket No. 1–10–2297

Filed June 10, 2011

Held ( Note: Thi s syllab u s constitutes no part

of the opinion of the court but has been prepared by th e Reporter of Decisions

for th e convenience of the reader. ) Inan action by de cedent’s cousin al le ging that he was the benefic iary of four paya ble ondeath

accoun ts dec edent opene d at de fendan t savi ngs and loa n association and that the association, without authorization, paid the proceeds of two of the accounts to the executor of the e state of decedent’s daughter, the trial court properly en ter ed a judgment for plaintiff that included prejudg ment interest, notwithstanding the association’s contention that plaintiff failed to present clear and convincingevidence that decedent chang ed the beneficiary of the

accoun ts from her daughter to plaintiff by adding language

t o th e

or ig in al ce rt if

ic at es of de po si t n am in g p la in ti ff

as th e b en ef

ic ia ry.

Decision Under Review Appeal from the Circuit Court of Cook County, No. 05–L –1827; the Hon. H enry R. Si mmon s, J r., J udge, p resid ing.

Judgment Affirmed.1 Hector Gonz alez is not a p arty to

this ap peal.

-2- Counsel on Appeal Adrian Mend oza and Edwa

rd R. Sher

man, both of Li llig & T

horsness
, Ltd., of Chicago, for ap

pellant.

Gilbert W. G ordon , Peter J. Miller, and Richard R. Gordon, all of Gordon Rappold & Miller LLC, of Chicago, for appellee.

Panel JUSTICE McBRIDE delivere d

the judgment of

the court, with opinion. Presiding Justice G ar cia and Justice Cahill concurred in the judgment and opinion.

OPINION

¶ 1 InFebruary

2005, plaintiff filed a

two-count complaint

against defendant Second Federal Savi ngs and Loan A ssociation for conversion and breach of fiducia ry duty . Plaintiff later amended hi s c om pl ai nt to in cl ud e a n a dd it io na l c ou nt of br ea ch -o f- co nt ra ct th ir d- pa rt ybeneficiary

action. Pl ainti ff all ege d that he was the beneficiary of four accounts opened at Second Feder al and tha t Second F ederal
, withoutauthorization, paid the proceeds of two of the accounts to the third-party defendant

Hect or Go nzale z, 1 as the executor of the estate of JuanaGabriel a Martinez. Followin g a July 2010 bench trial on the breach-of-contra ctthirdparty-be neficiary count, the trial court found in favor plaintiff and awarde d him $111,045. ¶ 2 Second

Federal appeals, arg

uing that (1) the t

rial court erred in finding in favor of plaintiff because the evide nce was insufficient to establish that plaintiff was the rightful beneficiary

of two accounts at Second Federal; and (2) the trial court erred in award ing prejudg ment inter

est when plaintiff did not re quest tha

t relief in his comp laint. ¶ 3 Plaintiff’s first amended complaint alleged that he was the executor of the estate of Gaby Gonzalez (Gonzale z), his cous in. In October 1999, Gonzalez opened two ac counts at the Archer Avenue branch of Second Fede ral, account number 008–07–9–001137–5 (375) and 008–07–9–001135–9 ( 359) (collectively, 1999 a ccounts). In November

2000, Gonzalez opened two more accounts with Second Federal at the Pulaski branc h, ac count number 001–07 –9001626–4 (264) and account number 001–07–90016 27–2 (272) (c ol le ct iv el y, 200 0 accounts). When the four accounts were opened, Gonzalez designated her daughter, Juana Ga br ie la Ma rt in ez , a s t he be ne fi ci ar y. ¶ 4 The complaint further alleged that on Marc h 1, 2001, Gonzalez changed the beneficiary of all fou r accou nts to plaintiff. On August 22, 2001, Gonzalez died from terminal cancer. OnSeptembe

r 29, 2001 , plaintif

f closed the 2000 acc ounts and t he proce eds wer

e paid to-3-

plaintiff. Martinez died of terminal cancer on September 30, 2001. ¶ 5 OnNove mber 15, 2001, plaintiff requested Second Federal to dra ft a check to pay

for Gonzalez’s funeral costs from one of the 1999 a

ccounts, specific ally

account number 375, whichSecond F ederal

issued. Later in 2 001, plain tiff ask e d Second Federal to prepare a check to pay attorney

fees associated

with Gonzalez’s estate and Second Federal again issued a check from ac count numb er 375, one of the 1999 acc ounts. ¶ 6 InDecember 2003, plaint iff sought to cl ose the 1999 accounts, but Second Federal informed him that the accounts had been closed and the proce eds were paid to Hector Gonza lez, M arti nez’s boy frie nd and no r

elat ion to plain tiff or Go nzale z. ¶ 7 Plaintiff’s complaint alleged three counts against Second Federal: count I

for conversion,
count II for breach of fiduc ia ry d ut y, a nd co un t II I fo r b re ac h o f c on tr ac t t hi rd -p ar tybeneficiary

action. Plaintiff sought $80,473.47, the proceeds of the 1999 accounts. In October 2009, the trial

court dis missed the

convers ion count f

rom plaint

iff’s complaint in i

ts ruling

onthe parties’ cross-motions for summary judgment. T he c ourt’s wr itten dec ision also indicated that plaintiff withdrew count II (breach of fiduciary

duty) during

the hearing

on the motion for summary

judgment. As for count II I (breach of contract third-party

beneficiary

), the trial court found that a question of material fact existed and denied

both part ies’ req uests for summa

ry judgmen t as to this c ount. ¶ 8 OnJuly 29, 2010, a bench trial was conduc ted on plaintiff’s breach-of-c ontractth irdparty -benef icia ry cl aim. A new trial judge presided over the be nch trial. The following evidenc e was pr

esented at the tri al. ¶ 9 Plaintiff

testified with the aid of an interpreter. He stated that he resided i n SanLuis Potosi, Mexico. He

test if ied that he was related to Gaby Gonzalez. They were

cousins throu g h their fathers. Gonzalez was also from Mexico, but she moved to Chicago in the 1970s. Plaintiff

maintaine d contact with Gonza lez throug h visits and the telephone. He was al so acqu ainte d with

Gonza lez’s daug hter , Juan a Mar

tinez . Plai

ntiff call ed Ma

rtinez “ hi s niece.” ¶ 10 Plaintiff

stated that he was aware of Gonzalez’s real e state. H e said that she ow ned a building with a beauty

salon, which Gonzalez operated. ¶ 11 Plaintiff

learned in 1999 that

Martinez had cancer. L ater, in March 2001, plaintiff spoke with Gonzalez over the phone and was informed that Gonzalez had cancer. Gonzalez invited plaintiff to visit in June 2001 for a party in honor of Martinez’s birthday. Plaintiff desc ribed Gonzalez’s condition as “very de licate” and “frail.” He said “she didn’t look well.” Plaintiff stated that he r eturned at the en d of July and Gonza

lez’s condition was

worse. Wh en he ca

me to Chicago at

the beg inning of

August, Gonzalez w as at a “ cancer hospital” in Waukegan, butwas transferred to Rush. Plaintiff testified that Gonzalezwas rele ased to g o home when the doctors felt “that they had no more recourse.” ¶ 12 Plaintiff

stated tha

t he had c onversa

tions with Gonzalez about her estate. She told him that her documents were kept in a bag in a bedroom

closet. T he docume

nts includ ed her will and certifi cates of

deposit. Pl aintiff t

estified that Gonza

lez told him that he wa s to rec eive the documents. Gon

zalez died o

n August 22, 2001. Pl aintiff a

rrang ed the fu

neral. ¶ 13 Plaintiff

identified

four exhibits as the original certificates of deposit that Gonzalez left-4-

him. All four of the certificates indicated that “Ga by Gonzalez” was the ac count holder. The
trustee language included a c hange. For the 1999 accounts, the truste e language stated, “GABY GONZALEZ AS TRUSTEE FOR: JUANA GAB RIE LA MARTI NEZ ,” and b eneat

h tha tit said, “RAFAEL GONZ ALEZ.” F or the 2000 accounts, the first line of the truste e language stated, “

AS TRUSTEE FOR: JUANA GABRIEL LA MARTI

NEZ ,” and

beneath it a second line was added, “AS TRUSTEE FOR: RAFAEL GONZALEZ .” Additionally, a line was typed at the top of each of the four certifi cates, s tating: “REVI SED BENE FICI ARY 03/01/01 RC. ” The certificates for the 1999 accounts ea ch listed an opening balance of $50,000, while the certificates for the 2000 accounts e ach listed an opening balance of $60,000. ¶ 14 Plaintiff stated that he cashed the certificates for the 2000 a ccounts in September 2001
at the Pulaski branch. He testified that he used the money for e xpenses for Martinez’s funeral and the car e of Gonza

lez’s stepmother, w

ho li ve d in Mexico. Plaintiff presented the

w ithdrawal s lips for each of the accounts as an exhibit and it stated that $63,515.99, was withdrawn

from each of the 2000 accounts, and included plaintiff’ s signatu re and the date of September 29, 2001. The 2000 accounts were then closed. Plaintiff testified that the bank employee did not look atany rec ords or review any other documents before she gave plaintiff the check. ¶ 15 Plaintiff stated he returned to Second Federal on November 15, 2001. He s ought a check
to pay the fune ral hom e. He sa

id he took t

he cert ificate s for the

1999 acc ounts, his identification, the “payme nt slip from the funeral,” and Gonzalez’s death certificate. H e spoke with an em

ployee and to ld

her he wanted to issue a check to pay the funeral services because he did not have a checking accoun t. He said she looked over the documents, went inside the bank, and

then cam e back w ith a che ck. Plaint

iff testif ied that no one indic ated to him that there was a question whether he was the be neficiary of this acco unt. He did not speak with any other employ

ee of Second Federal. An

exhibit was presented that showed a copy of a che ck for $9 ,606.48, p ayable to F ortuna B rothers , as well as a copy of the teller receipt indicating pay

ment from account number 375 and plaintiff’s signature

. ¶ 16 Plaintiff

testified that he returned to Second Federal on December 6, 2001, to

obtain a check for attor ney service s on Gonzal ez’s esta te. He said he br

ought the certifi cates, h

is identification, and the bill from the attorney . He spoke with an employe e. S he did not a sk him any questions
, but instead she looked at plaintiff’s documents, went into the back of the bank, and came back with a check. A c opy of the teller r eceipt with the account number and plaintiff’s signature and a copy of the check, pay

able to Owens, Owens & Rinn, L td., in the
amount of $22,526.50, were presented as exhibits. Theteller receipt had a handwritten note, “Approved

by Gigi,” under the section for “Teller’s I .D.” The receipt also indicated that the money was dra

wn from account

number 375. Again, plaintiff stated that no one aske d him about his right to withdraw funds under the certificate

. ¶ 17 Plai ntiff

stated his next visit to Second Federal was in July 2003. He spoke witha n employee at a desk. He brought the certificates a nd asked if the accounts were still open and what the amounts were. Plaintiff said the em pl oye e informed him that the accounts were
op en an d h e c ou ld go to a t el le r. Pl ai nt if f d id no t w it hd ra w a ny m on ey t ha t d ay.-5-

¶ 18 InDecember 2003, p laintif f returned to the bank. He brought the c ertificates and his identification. He spoke with a teller and asked to close the acc ounts. He stated that the teller looked in the sys tem and to ld him the accounts were closed. Plaintiff testified that he told her that was “impossible” because he had the original ce rtificates. She went inside the bank and

came b ack with t

wo people . They

explained

to plaintif

f that the money had bee n paid to Hect or Go nzale z. ¶ 19 On cross-examination, plaintiff admitted that h e did n ot hav e any first hand k nowle dge of Gonz alez’ s actions

with Second Fede

ral. He was not pre sent at Se cond Fe deral wi th Gonza lez. Plaintiff stated no one at Second Federal informed him that he wa s notdesignated

as the bene ficiary

on the 199 9 accou

nts. Plaintiff

admitted that he was not the executor of Martinez’s estate; she had named Hector as her e xecutor. Plaintiff stated

that other than the certifi cates, he has not

seen any othe

r bank documents that reflected him as the beneficiary of the 199 9 accou

nts. ¶ 20 Mary Turk te stified for plaintiff’s case. She stated that she formerly

worked for

Second Federalfor 43 yea

rs. At the time she left Second Federal, Turk handled miscellaneous
matters pertai ning t o “EFT” operat ions , check ing op erati ons, l egal fi les an d was i n charge

o f o ffice supply pur

chases. She also handled genera l customer problems. Turk did not supervis e the tellers, but

the tellers did come to her with questions. In 1999 and 2000, Turk

was an a ssistant vi ce-pre sident of Second F ederal

. ¶ 21 Turk

identifie d the cer

tificate s of depos it

on the 1999 and 2000 accounts. She stated that the certificates are issued when the account is opened and they are similar to a passbook-ty pe of instrument. Turk was asked what the notation of “REVI SED BENEFICI ARY 03/01/01 RC” meant. Turk answered, “That means that the owne r, Gaby Gonzalez, was the account holder at that time , came in

to change the beneficiary onthese ac counts. T

hat was h er inten

t, and it was typed this way

by this–the letters, RC.” Turk stated that Rosa C avilla worked in the new accounts area of the bank a t that time. ¶ 22 Turk

was also asked about

the portion in which the language naming Martinez as trustee

was crossed out and plaintiff’s name was added as trustee . Turk stated that “it’s not the way it should ha

ve been done, but it’s the w ay

that Rosa d

id it.” Turk testified that this method had been use d in

prior yea rs, but the preferred way

was to issue a new certificate and a new signature card, “but this is what wa s don e at this time.” Turk admitted that she did not believe there were any

written procedures on how to change beneficiaries on certificates of deposit. Turk stat

ed that a new signature card should have be en issued and the account owner should have initialed the change. ¶ 23 Turk

also testified that the signature cards from the 2000 accounts were sig ned twice, but Gonzalez did not initial where the beneficiary was chang ed . Copies of the signature cards

were presented as exhibits. These signa ture car ds included the language “REVI SED BENEF ICI

ARY03/01/01 RC” and Ma rtinez’s name was cro ssed out a nd plaintif

f’s name

wa s a dd ed in th e s ec ti on fo r b en ef ic ia ry. ¶ 24 Turk stated that the account numbers for the 1999 acc ounts indic ated tha t the acc ounts

were opened

at a different branch, the Archer Avenue office, a nd the original signature cards would have been maintained at

that loca tion. Desp ite this, Gonzalez would have been ab le-6-

to change the beneficiar

ies at the Pulaski offi ce, but cer tain steps should have been done, suchas contacting the Archer branch, asking them to pull the signature ca rds, and preparing

newsignature cards. Turk admitted that there we re no procedures to pe rform these ta sks. Turk also stated that

it would not have been proper to return thecertificates to the account holder unless all the steps to change the signature card had been completed. ¶ 25 Turkre viewed a copy of Gonzalez’s customer profile presented as an exhibit. Th e

messa ge section stated: “GABY GONZAL EZ DECEASED 08 /22 /01. REVISED B EN EFI CIARY

03/01/01 RAFAEL GONZ ALEZ. PL

EASE USE CAUTION 09/21/01. ANY QUESTIONS SEE GI GI. 09/21/01 MNG.” Turk testi fied that “MNG”

was M yr a Gar za and that she was “GIGI .” She said this entry was on the compu

ter system and it

listed all four

accoun ts. ¶ 26 Turk

stated that she believed she was the person who approv ed plaint iff’s re quests for checks to Fortuna Broth ers and O wens, Owens & Rinn, Ltd. Turk testified that she approved plaintiff’s request to close the 2000 accounts in September 2001. ¶ 27 Turk

testified that she met Martinez once. Martinez came to Second Federal and

sought
to withdraw money a s the beneficiary , butTurk saw the accounts listed plaintiff as the be ne fi ci ar y. Turk stat

ed that she felt ba

d for Mar tinez as she

was “ve ry ill,” but she did

not have the certificates of depos it or a dea th certificate. Turk stated that she was awar e the
money in the 1999accoun

ts was pai d to Hector as the trustee for Martinez’s estate, but she did not approve the

pay out. ¶ 28 Oncross-examination, Turk admitted that she neve r met Gonza

lez and did

not assist her when she came

to Second

Feder al. Sh e conce ded th at she does not have any personal knowl edge of Gonzalez’s intent. She stated that after there were questions on the ac counts, she spoke with Rosa Cavilla about the notations, but Cavilla did not have any rec ollection of any thing. T urk also s aid that she did not be lieve she told Marti nez that she was not the beneficiary

on the 1999 accounts, which had been opened at the Ar cher branch. ¶ 29 Turk

testifie d that she

did not re call enc ounterin g an inst ance in which the certificates of de posit we re in conflict with the bank signature card. T urk stated she did not know which document would con

trol. Tur k furthe r testifie d that the

signatu re car d “is the ultima

te source of ownership of the account.” ¶ 30 Turk

stated tha t for a wi thdrawa l to be made from the 1999 accounts, the signaturecards would be reviewed. Since the signature cards for the 1999 accounts were at the Arc her branch, they would have f axed copies over

to the Pulaski branch. Turk agreed that this was normal custom and practice. Turk admitted that the signature c ards for the 1999 accou nt s

were lost for a period of time. Second Federal pr esented as an

exhibit a copy of the orig inal signature cards for the 1999 accounts which indicated Mar tinez as the beneficiar

y. On e of the signature cards was unsigne d by Gonzalez. Turk also noted that proxy cards for each of th e 1 99 9 a cc ou nt s w er e s ig ne d b y Go nz al ez an d s ho we d M ar ti ne z a s t he be ne fi ci ar y. ¶ 31 Turk testified

that the copy of the c

ustomer profile for Gonzalez’s accounts included a handwritten

notation, which stated “benef–Juana Gonzalez–daughter died 9-30-0 1.” Turk stated that t he han dwrit ing was her s. However, when asked about the ty ped message that indicated a revise d benefi ciary

to plaintif

f, Turk st ated tha t s he th ought it applied to the-7-

ownersh ip of the accounts and

she could not tell by looking at the message to which account it referred. Turk

said she d

id not know for how many a ccounts Gonzalez requested to have the beneficiary

changed when she came in on Ma rch 1, 2001. ¶ 32 Turk

admitted i

n respons e to a questionfrom the trial judge that the method of crossing
out the name of beneficiary was still done “from time to time.” Turk testified that she ha d

no reason to believe that the certificates were not modified by an employee

of Sec on d Feder al. ¶ 33 Follo wing Turk’s te stimony , plaintif f rested . Second F ederal moved for adirecte d finding, which the trial judge denied. ¶ 34 Gonzalo Gradilla testified that he was currently

employed as the

vice-president of

retail banking at Second

Federal and

he previously held the position of chie f operations officer at Second Federal. I

n the course of his employ ment, he stated

that he was familiar with the forms and documents used in 1999 and 2000 for t

he cert ificate s of depos it at issue . Gradill a said that he had never met plaintiff or Gonzalez, but he had met Martinez once. ¶ 35 Gradilla

stated that if a customer wanted to open a certifica te of deposit in 1999, he or she would be issued “a hardcover CD which maintains a history of the ac count as well as a signature card

that we ma

intain at t he branc h.” Gra dilla identified that the applications and
proxy cards for the 1999 accounts which listed Gonzalez as the primary owner and Martinez

as the bene ficiary . Gradill a also identified the signature cards, which were maintained at the Archer branch. Gradilla admitted that over the course of the litigation, there was a period of time when the signature cards could not be loca t ed. H e said the bank launched an investig ation and

found the

cards in a box for c losed ac count sig nature c ards. ¶ 36 Gradi llatestified that “account ownership is alway s supported by the sig

nature card[,] whichis a contract with our customer.”Gradilla stated the bank would not rely on the certificates in the ca se of a c onflict. G radilla a dmitted tha

t he was not pa rty to any discussions with Gonza

lez on Mar

ch 1, 2001 , and did

not h ave any pers onal k nowle dge of what she may have

told a Second Federal employ ee about what she wanted done with he r four accounts. He did not know why there are four certifica tes that show a revised be ne fi ci ar y, b ut on ly t wo si gn at ur e c ar ds th at sh ow ed a r ev is ed be ne fi ci ar y. ¶ 37 Gradilla

also state d that he was “par t of the pr ocess” in approvingthe closing of the 1999

accoun ts and issuing p ay

ment to He ctor in June

2002. He s aid

his participation was that Turk informed him that since they had

signature cards that mentioned Martinez asth e b en ef ic ia ry, Hector would be bringing executor docume ntation to show that he was the executor of the
estate of Juana Ma

rtin ez, andthat on the day he c ame in, Hector would have access to the

accoun ts. Gradilla

testified that when Hector came to the bank, they reviewed the signature cards, his identificationand his designation as executor of the estate. Gradilla admitted that Hector did not have the actual certificates for the 1999 accounts. Instea d, Gradilla had Hector sign a “lost passbook affidav i t,” which indicated that he did not have possession of the certifi cates. Gradilla stated that during their investigation, no modified or amended signature cards w ere fou

nd for the 1999 acc ounts. ¶ 38 On cross-examination, Gradilla admitted that he did not p lay

a very big role inapproving the payout to Hector. H e stated that he did not know that plaintiff had the original certificates-8-

and admitted that if he had known there was a question as to who the funds belonged to, they would not have p aid out. Gradilla responded to a question from the trial judge that the f ont used on the

certifi cates wa s one used on the ban

k’s ty pewrite rs. ¶ 39 Myra

Garza te stified that she wa s curre ntly employ ed as the retail o perations manager for Second Federal. She s tated that fro m 1993 to 2005, she was a supervisor for Second Feder al. Garza admitted

that the in

itials MNG

from the c

ustomer profile

messag e were

hers. She said that she inputted the message into Gonzalez’s customer profile in the computer
sys tem. The message was entered on September 21, 2001, and all of it was entered at one time. Garza sta

ted that “ the purpo se of this messa ge [was] to alert the teller to use caution before proceeding with any transactions.” Garza testified that she received this information fromsomeone e lse and it was not her firsthan d knowled

ge. She said she r

eceive d this information from Turk. ¶ 40 Garz a

admitted on cross-examinationthat a person would not be permitte d to complete

a lost passbook affidavit and close the account if the bank employee s knew a third party was in possession of the certificates. Garza also testified that the chang e to the certificates was

a method used by

Second F ederal

in 2001. Ga

rza state d that a

customer would not have been allowed to leave the bank w

ith the ce rtifica tes until a

ll t he proce dures we

re compl ete to change the beneficiary , which included signing a new signature card indicating a c hange of be ne fi ci ar y. Garza conceded that S econ d Federal did not have any written procedures in 2001 for cha nging the name s of bene ficiari es on the c ertific ates of d eposit. ¶ 41 Garz a

testified that she was not present when the accounts were cha nged in March

2001. Garz a stated it was possibl e for a customer to change his or her mind a

bout chan ges to hi s

or her accounts and leave

the bank without signing a signature ca rd. She said the transaction would not be com

p lete. However, Garza also said the certifica tes would reflect his or her wishes as of that day

and he or she would

need to c ome back

with certifi cates to

chang e his or her account again. ¶ 42 After Garza’s testimony , Second Federal entered a stipulation that Hector was issued two ch ecks: one in the amount of $23,841.49, for account 375 and one for $56,631.98, for
account 359. Both side s then re sted. Fo llowing c losing a rgumen ts, the tri al judge

made his finding that the plaintiff proved his case by clear and convincing evidence. The judge noted that he listened

very close ly to thetestimony and observed the w itnesses’ demeanor and that he was also “intimately fa miliar with the exhibits allowed into evide nce by both sides.” The judge entered an

award for plaintiff in the amount of $111,045, which included prejudgment interest

. The judg e also en tered ju dgment a gainst H ector in

a th ir d- pa rt y action for that
amount. ¶ 43 This appeal followed. ¶ 44 Onappeal, Second Federal arg ues that the trial court erred in finding in favor of plaintiff because the evide nce fai led to establish by clear and convincing evidence that plaintiff was the bene ficiary

of the 199 9 accou

nts. ¶ 45 After

a bench trial, we will not disturb the trial cou rt’s findings of fact unless they are againstthe manifest weight of the evidence. Southwest Bank of St. Louis v. Poulokefalos , 401 Ill. App. 3d 884, 890 (2010). “The reviewing cour t gives great defer

ence to the trial court’s-9-

findi ngs because , as the tr ier of fa ct, the tr ial cour t is in a sup erior position to observe the witnesses while testifying, to judg e the ir cr edibility and to det

ermine the weig

ht their testimony and other evidenc e should

receive.” International

Capital Corp. v. Moyer , 347 I ll. App. 3d 116, 121-22 (2004). A finding is against the manifest we ight of the evidence only if the opposi

te conclusion is apparent or if the finding appears to be ar

bitrary , unreas onable

or not based on the evidence. Southwest Bank , 401 Ill. App. 3d at 890; Moyer , 347 Ill. App. 3d at 122. ¶ 46 All of the accounts created by G onzalez we

re pay able on de ath (POD)

accoun ts, also knownas Totten trust accounts. “A Totten trust is created when a d eposit is ma de by a
person (the holder) of his or her own money in his or her own name as trustee for another.” In re Estate of Weiland

, 338 Ill. App. 3d 585 , 589 ( 2003) (citi ng In re Esta te of Davi s , 225 Ill. App. 3d 998, 1005 (1 992)). “[W]here a decedent, during his lifetime, executes an instrumentcreating a bank account in his or

her own name as tr

ustee for anothe

r, there is a presumptionthat the decedent intended to c reate a [POD] trust in favor of the named beneficiary

or beneficiaries.” Weiland , 338 Ill. App . 3d at 597 (c itin g In re Estate of Petralia
, 48 Ill. App. 2d 122, 136 (1964), aff’d , 32 Ill. 2d 134 (1965)). ¶ 47 In determining the prope r burden of proof in cases involving a Totten t rust acc ount, the Weiland court reviewed cases involving joint accounts. The court concluded that the same burden of proof should be a

pplicabl e to both jo int acco unts and T otten trust accoun ts. Weiland
, 338 Ill. App. 3d at 597-98. Thus, “a written i nstr ument executed by the holder expressing his or her

intent to create a POD account raises the presumption of the holder’s intent, and such presumption may be overcome only by clear and convincing evidence

. However, in the absence of a written instrument executed by the holde r, the cl aimant mus t show the holder’s intent to create a Totten trust by clear and convincing evidence .” Weiland
, 338 Ill. App. 3d at 598. ¶ 48 The statute governing POD acc ounts does no t specify th e signature card as the controlling instrumen t when changing

benefic iaries. ¶ 49 Section 4( a) of the Illinois Trust a

nd Pay able on D eath Ac counts Act states: “If one or mor

e person s opening

or holding

an acco unt sign a n agre ement wit

h th e institution providing that on the death of the last surviving person designate d as holder the acc ount shall

be paid to or held by [one or mor

e des igna ted b enef icia ries ], the accoun

t, and any balance therein which exist s from time

to time, sha

ll be held as

a payment on

de ath account and unless otherwise agre ed in writing between the person or persons opening or holding the ac count and the institution: (a) Any holder during

his or her lifetime may

c hange any

of the designated [benefic iaries] to own the account at the de ath of the last surviving holder without the knowledge or consent of any other holder o r the des ig na te d b en ef ic ia ri es by a written instrument accepted by the institution[.]” 205 ILCS 625/4(a) (West 2002). ¶ 50 The cardinal ru le in construing a statute, to which all others are subordinat e, is t o ascertain and give effe ct to the intent of the legislature. Alvarez v. Pappas
, 229 Ill. 2d 217, 228 (2008). To determine legislative intent, we turn to the language of the statute, which is the best indicator of its intent. Alvarez , 229 Ill. 2d at 228.-10-

¶ 51 Section4(a) spe cifical ly a llows a holder t o chang e the beneficiar y on a POD with

“a writteninstrumen

t accepted by

the institution. ” 205 I

LCS 625 /4(a) (We st 2002). Se e also Weiland , 338 Ill. App. 3d at 603 (“neither a signature ca rd nor any othe

r particular form

of writing is required by

the statute. Instead, the rec ord must establish the existence of a writing expressing the intent of the holder to establish a POD account.”). The crux of Second Federal’s argume

nt is that the signa

ture ca rds f or t he 1999 accounts are the only written instrumenttha t ca n demonstrate a change of bene ficiary. H owever, we first note that the signature card for accou

nt number

375 was never

signed b y G onzalez. Th

us, the onl

y document which sup po rts Second Federal’s assertion is the signature card for account number 35 9. Moreover, the e vidence present ed at tria l showed that Second

Feder al and its employees

allowed money to be w

ithdrawn from the accounts without a signature card and relied on the certificates of deposit to s ubs tantiate plaintiff ’s claim a s a benef

iciary . These actions support a finding that the certificates of deposit constitute “a w ritten instrument

ac ce pt ed by t he in st it ut io n” fo r a ho ld er to in di ca te a c ha ng e o f b en ef ic ia ry. ¶ 52 Plaintiff

submitted multiple document s indi catin g Gonz alez’ s int entio n to ch ange the beneficiary

on all ac counts. All four certificates of deposit indicate that the beneficiary was changed to plaintiff

on March 1, 2001. Second Federal employ ees testified that the font used
to type in the chang es was from a Second Federal ty pewri ter. Add

it ionally, the customer profile for Gonzalez listedall four accounts and included a message that the beneficiary

was changed to plaintiff on March 1, 2001 . Plaintiff also presented the signature car ds for the 2000 accoun

ts which ha

ve Ma rtinez’s name crossed out and plaintiff’s name ty ped underneath. How e ver, no new signature card was issued, as Second Federal contends was required, nor did Gonzalez initial the changes on the cards. We note that the 2000 acc ounts

were opened at the Pulaski branch, which was the location whereGonz alez w ent to change the bene ficiari es. ¶ 53 Turk testified that there were no written proce dures on how toch an ge a b en ef ic ia ry. She stated that new signature cards should have bee n issued instead o f simp ly crossing out Martinez’s name and

adding plaintiff ’s name b ecause

doing it t hat way is “not the

way it should have been done, but it’s the way that Rosa did it. ” She also

noted that this method of crossingout the pr

ior bene ficiary

and ty ping in a new one had been

used in prior y ears. Turk further stated that Gonzalez would have been abl e to cha nge the beneficiary on the 1999

accoun ts, which were opened at a differ ent branch, at

the Pulask

i branch, but the bank employees

would nee d to follow certain steps to change the signa ture cards. Again, Turk admitted t

here we re no pro cedure s for emp loyees to pe rform the se tasks. ¶ 54 Evidence was also presented through e xhibits and witness testimony that Second Federal permitted plaintiff to use funds from the 1999 accounts to pay bills for Gonzalez’s estate. A check was issued first for the funeral home and later a check for the attorneys for the estate. Plaintiff testified that when he went to Second Federal for these c hecks h e prese

nted his identification, the certificates of deposit and the invoices. He was not questioned about his right to withdrawfunds fr

om the ac counts. These transactions indicate that Second Feder al considered

the certificates of depos it listing plaintiff as the beneficiary to be sufficient documentationto release funds. Second Federal a sserts that the invoices were paid bec ause they were billed to Martinez and the checks were issued directly to the third-pa

rty creditors,-11-

butwe are not persuaded because at the time of the transactions, plaintiff did not present any document s showing that he was authorized to withdraw funds on Martinez’s behalf and employees

did not que stion plain

tiff abou t his ownership of the accounts. Further, plaintiff testified that he ha d the che cks prep ared in

the name of

the creditors because he did not have a check ing acc ount. ¶ 55 Under

the fact s of this ca se, Second Fede ral, thro ugh the actions o f its employee s , permitted Gonzalez to change her beneficia ry to plaintiff and then gave plaintiff access to the funds w ithout any question as to the sig nature card. Since the statute gover ning POD

accoun ts al lows f

or the change in beneficiar y on a written instrument ac cepted by the institution
, th e certificates of deposit were suffic ient proof of the beneficiary change and Second Feder al acknowledge d the cer

ti fica tes as such when it permitted plaintiff to withdraw funds as the beneficiary . Given this evidence of documentary intent and the a ctio ns by Second Federal r ecogn

izing pla intiff as the bene ficiary

, we do not

find that t

he opposit

e conclusionis apparent nor was the trial court’s finding arbitrary, unreasonable or not based

onth e e vi de nc e. Ac co rd in gl y, we hold that the trial court’s findings were not aga inst the manifest weight of the evidence and a ffirm its award in favor of plaintiff. ¶ 56 Finally, Second Feder al asser ts that pla intiff wa s not entitl ed to prejudg ment inter

est on the award b ecause

interest was not sp ecifica

lly requested

in his req

uest for relief i n his complain t. Plaintiff responds that

Il linois law

did not re quire him t

o specif ically request interest in count I

II of his com

plaint. ¶ 57 Section 2 o f the I nterest Act provid

es: “Creditors shall be allowed to receive at the rate of f ive (5) per centum per annum for all mo ne ys a ft er th ey b ec om e d ue on an y b ond, bill, promissory note, or other instrumentof writing; on

money lent or adva

nced for the use of another; on money due on the settlement of account from the da y of liquidating ac counts between the parties and ascertaining the balance ; on money rece ived to the use of another and retained without the owner’s knowledge; and on money withheld by

an unrea sonable and vexatious delay of pay

ment. In the absence of

an agreement

between the creditor and debtor governing interest charges, upon 30 days’ wr itten notice to the debtor, an assignee or agent of the

creditor may

charge and

collect i nterest a s provide d in this Section on behalf of a creditor.” 815 I LCS 205/2 (West 2002). ¶ 58 “Prejudgment interest need not be requested in the c omplaint in order to be recove rable under the I nterest Act; when the evidence at trial establishes that a pa rty is entitled

t o prejudgment

interest under the Inte rest Act , a reque st

for such interest will be read into the complaint.” Prignano v. Prignano , 405 Ill. App. 3d 801, 82 1-22 ( 2010) (citi ng Kehoe v. Wildman, Harrold, Allen & Dixon , 387 I ll. App. 3d 454, 473 (2008); Boyd v. U nited Farm Mutual Reinsurance Co. , 231 Ill. App. 3d 992, 1000 (1992) (“Contrary to the defendant’s
argume nt, the mere fact tha

t plaintif fs’ comp laint did

not ask for intere st was of n o moment, since interest is provided by statute and w ill be read

into the co mplaint.”) Madison Pa rk Bank v. Field , 64 Ill. App. 3d 838, 843 (1978) (“The fact too that the compl aint did no t ask for inter est is of no

moment, since the same is provided for by statute and will be read

into the complaint.”)-12-

¶ 59 Here, Second Federal deprived plaintiff as the be neficiary the f unds from the 19 99

accoun ts and the trial court

properly re ad a

request for pre judgmen t interes t under the In

terest Act into the complaint. Therefore, we affirm the trial court’s award

of preju dgment i nterest. ¶ 60 Based

on th e foreg oin g reasons, we affirm the dec ision of the circuit court of Cook Co un ty. ¶ 61 Affirmed.