# Gunn v. Sobucki > Illinois Supreme Court · October 6, 2005 · 216 Ill. 2d 602 URL: https://www.frixlaw.com/law-library/cases/9716049 ## Case - **Full name:** EDWIN N. GUNN, Indiv. and as Trustee of the Edwin N. Gunn Trust Under Trust Agreement Dated 3/25/93 as Amended Lastly in 1998, 2000 and 2001, Dr. Donald J. Hull, Successor Trustee, Appellant, v. LEORRAINE “LEE” SOBUCKI, Appellee - **Court:** Illinois Supreme Court - **Decided:** October 6, 2005 - **Citations:** 216 Ill. 2d 602; 297 Ill. Dec. 414; 837 N.E.2d 865; 2005 Ill. LEXIS 979 - **Precedential status:** Published - **Opinion:** Concurrence by Thomas - **Judges:** Karmeier, Thomas, Freeman, Fitzgerald, Kil-Bride - **Cited by:** 61 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9716049 ## How later opinions describe it (automated extraction) - finding that testimony that a payment was not made as consideration under a bill of sale was considered an event under the Act ## Opinion text CHIEF JUSTICE THOMAS, specially concurring: I agree with Justice Karmeier’s conclusion that Gunn’s testimony was barred by the Dead-Man’s Act and that the error in admitting this testimony necessitates a new trial. After determining that a new trial is warranted, however, Justice Karmeier determines how the evidence should be weighed at the second trial. I do not join this part of the lead opinion. Justice Karmeier notes that the standard for determining whether a new trial should be ordered because of improperly admitted evidence is whether that evidence “appears to have affected the outcome of the trial.” 216 Ill. 2d at 613, citing Tzystuck v. Chicago Transit Authority, 124 Ill. 2d 226, 243 (1988). Clearly, the evidence at issue meets that standard. Gunn’s testimony that the sale was a sham and that he never received payment for the coins was a crucial piece of evidence at the trial, and it is questionable whether the trial court would have reached the same conclusion without that evidence. In my view, that is all we need to say. This is essentially the way the appellate court disposed of the case. Once the court determined that Gunn’s testimony about the transaction had been improperly admitted, it simply reversed and remanded for a new trial. 352 Ill. App. 3d at 788. Justice Karmeier, by contrast, sifts through all of the evidence and determines who should win the case once Gunn’s testimony is excluded. In this section, Justice Karmeier finds facts, weighs the evidence, draws inferences and conclusions, and instructs the trial court as to how it should view the evidence. See, e.g., 216 Ill. 2d at 614, 615 (“there would have been no reason to expect the Sobuckis to preserve bank records for such a long period of time,” “[i]t is not uncommon for a seller, upon seeing the buyer with the goods at some future time, to inquire about the goods in a manner, which to an outsider, would seem to reflect that the goods still belong to the seller”); 216 Ill. 2d at 615, 615-16, 616 (“[t]he reasonable inference is that the reason Mr. Sobucki bought the collection was simply to help Gunn out,” “there was nothing remarkable about Mrs. Sobucki’s evasiveness when Gunn and investigators he hired attempted to ascertain the status of the coin collection,” “[s]uch emotions are entirely understandable, especially considering that Mrs. Sobucki was elderly, had recently lost her husband and was living alone”); 216 Ill. 2d at 617, 617-18 (“Gunn was obviously an avid coin collector, and it is entirely possible that he had additional coin sets acquired later,” “[a] far more plausible explanation for the sham, if a sham there was, is that Gunn was simply attempting to prevent his wife from sharing in the coin collection’s full value when their property was divided in the dissolution proceedings”). To be sure, Justice Karmeier assures the trial court that he is merely providing guidance, not prejudging the case, and that the decision is still up to the trial court. 216 Ill. 2d at 619. It is not realistic, however, to say that the trial court is still free to make its own decision, after three justices of the supreme court have thoroughly detailed how the facts should be viewed and what inferences should be drawn from them. The lead opinion deprives plaintiff of his right to have the trier of fact determine these matters in the first instance. Thus, while I agree with Justice Karmeier that this case must be remanded for a new trial, I do not join in the fact-finding that follows this conclusion. JUSTICES FREEMAN, FITZGERALD and KIL-BRIDE join in this special concurrence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9716049. Public record. Not legal advice.