Wednesday, April 20, 2016
In Suit Over Uncashed Checks:
Estate of Judge Swearinger’s Widow Loses Appeal
By KENNETH OFGANG, Staff Writer
The estate of the widow of a Los Angeles Superior Court judge failed to prove that the man she lived with after the judge’s death owed her more than $40,000 at the time of his death, the Court of Appeal for this district ruled yesterday.
Whether checks written by Paul Humenik wrote to Patricia Swearinger, which she never cashed, represented an account stated for which his trust remained indebted was a pure question of fact, Justice Laurie Zelon wrote for Div. Seven.
Los Angeles Superior Court Judge Donna F. Goldstein’s ruling that there was no such account stated, and that Humenik’s estate was liable only on checks that were written less than four years before suit was filed, must be affirmed because the evidence did not establish that the trial judge was wrong as a matter of law, the justice said.
The opinion was not certified for publication.
Swearinger was married for 44 years to Los Angeles Superior Court Judge Ronald Swearinger, who served on the municipal and superior courts between 1972 and his death in 1992. According to testimony in the civil case, which was tried without a jury, she began dating Humenik in 1997 or 1998 and he moved into her home in 2004 or 2005.
Humenik died in March 2011, and Swearinger sued his estate in July of that year. She was represented by attorney William Swearinger, one of her two sons.
She died in January 2012, at the age of 83, and William Swearinger was appointed administrator of her estate and substituted as plaintiff. He testified at trial that his mother gave him 113 checks, signed by Humenik and made out to her, in amounts ranging from $40 to $1,200.
The checks were dated between May 1999 and February 2011. William Swearinger testified that his mother told him that the checks were IOUs for various expenses, which were explained on the memo lines of the checks, and that they totaled $41,178.15.
Questioned by the judge, he acknowledged that his mother never told him about the checks while Humenik was alive.
Edward Humenik testified that after his father died, Patricia Swearinger said he did not owe anything. On cross-examination, he said he omitted that remark from his response to a relevant interrogatory because he had forgotten it at the time.
Trial Court Ruling
Goldstein ruled that the couple had never agreed that the total amount claimed by the plaintiff was owed, so there was no account stated and each of the checks represented an individual debt, which could not be enforced beyond the four-year period in which to sue on a written instrument. Since only 11 of the checks were written during the four years preceding suit, the judge said, the plaintiff was entitled to judgment for the total amount of those checks, $3,409.45.
The trial judge ruled correctly that William Swearinger’s testimony did not establish an account stated, Zelon wrote for the Court of Appeal. “Patricia’s expressed understanding or desire concerning the accumulated checks does not demonstrate that Paul knew he was indebted to Patricia for the lump sum of $41,178.15 and was aware she was maintaining an account based upon the uncashed checks,” the justice said.
Nor can an account stated be inferred from the closeness of the couple’s relationship, Zelon said, dismissing that theory as “purely speculative” and unsupported by any evidence.
The case is Swearinger v. Humenik, B258174.
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