2020 IL App (1st) 190529-U
FOURTH DIVISION February 20, 2020 No. 1-19-0529
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
DANA BOND, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) No. 17 CH 05303 ) KEVIN RADKE, ) Honorable ) David B. Atkins, Defendant-Appellee. ) Judge Presiding. ______________________________________________________________________________
JUSTICE REYES delivered the judgment of the court. Justices Lampkin and Burke concurred in the judgment.
ORDER
¶1 Held: Affirming the judgment of the circuit court of Cook County determining the ownership of real property and addressing related financial matters.
¶2 While Kevin Radke (Kevin) and Dana Bond (Dana) were engaged in a long-distance
relationship, Kevin purchased a condominium in Burr Ridge, Illinois (the condo), where Dana
then resided with their child. Although Kevin obtained the financing and was the sole owner
listed on the deed, Dana paid for remodeling work and for a substantial portion of the mortgage,
homeowners association (HOA) dues, and other condo expenses during a two-year period. She
subsequently filed a complaint against Kevin in the circuit court of Cook County seeking a 1-19-0529
declaration of her ownership of the condo and other relief; Kevin filed a counter-complaint for
forcible entry and detainer and sought use and occupancy payments. Following a bench trial, the
trial court found that Kevin was the owner and granted Dana an equitable lien for certain
improvements she made to the condo. Dana contends on appeal that the trial court erred in
finding that Kevin was the owner of the condo and rejecting her claim for unjust enrichment.
For the reasons discussed below, we affirm.
¶3 BACKGROUND
¶4 In March 2014, Dana began searching for an apartment for her and the parties’ son. 1 She
originally looked for properties to rent because she was unable to obtain financing on her own to
purchase a property. After Dana did not find any suitable rentals, Kevin suggested that she look
for a property to buy. Dana testified at trial that they agreed Kevin would obtain the financing
and she would pay the mortgage, HOA dues, and utilities. During this period, Kevin was
working in a sales position in New York; his employer did not operate retail stores in Illinois.
¶5 Kevin obtained financing for most of the $140,000 purchase price for the condo and was
present with Dana at the May 2014 closing. Kevin then returned to New York, and Dana began
remodeling the condo at a cost of $11,527.14. She paid approximately $1100 per month for the
mortgage, HOA dues, and other condo-related expenses. After the parties’ relationship ended in
October 2014, she continued to reside in the condo and pay such amounts. Dana also testified
that she incurred approximately $4000 in maintenance and repair costs relating to the condo.
¶6 Dana claimed that Kevin failed or refused to make child support payments in amounts
adequate to support their son. He allegedly paid $400 in 2013, $4850 in 2014, $7388 in 2015,
and $3210 in 2016. Dana asserted that these amounts were less than required under Illinois law
1 Certain facts set forth herein were included in the agreed statement of facts filed by the parties; the record does not contain transcripts of any proceedings. See Ill. S. Ct. R. 323(d) (eff. July 1, 2017). -2- 1-19-0529
based on his annual income (e.g., income of $57,000 in 2014 and $72,000 in 2016). According
to Dana, Kevin ceased making child support payments after April 2016. By June 2016, Dana
was heavily in debt and stopped paying the mortgage and other condo-related expenses. The
record reflects that proceedings were initiated in the domestic relations division of the circuit
court of Cook County regarding, among other things, Kevin’s child support obligations.
¶7 Dana then filed the instant action against Kevin in the chancery division seeking a
declaration and deed reflecting her equitable ownership of the condo and an injunction
preventing Kevin from taking any action inconsistent with her ownership. In the alternative, she
sought a judgment in excess of $40,000 and an equitable lien against the condo.
¶8 Kevin moved for dismissal of the complaint pursuant to (a) section 2-615 of the Code of
Civil Procedure, arguing that the complaint did not plead facts to support Dana’s claim of
equitable ownership and (b) section 2-619(a)(7), contending that any alleged oral agreement as to
the condo purchase would be barred by the Statute of Frauds (735 ILCS 5/2-615, 2-619(a)(7)
(West 2016)). Kevin also served a 30-day notice to quit on Dana, notifying her that her month-
to-month lease was being terminated. In a counter-complaint for forcible entry and detainer, he
asserted that he owned the condo and that Dana was wrongfully withholding possession.
¶9 With leave of court, Dana filed an amended complaint for equitable and injunctive relief.
In count I, she alleged that she and Kevin shared a fiduciary relationship, and she sought the
imposition of a constructive trust over the condo in her favor. In count II, she asserted that if
Kevin was found to be the owner of the condo, he was unjustly enriched by her payment of the
mortgage, HOA dues, taxes, insurance, improvements, and repairs in excess of $40,000. In
count III, she requested an equitable lien for such amounts if Kevin was found to be the owner.
In count IV, she sought to quiet title through a declaration that she owned the condo in fee
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simple. Kevin filed a counter-complaint for forcible entry and detainer; he also sought an order
granting him access to the condo and compelling Dana to make use and occupancy payments.
¶ 10 During a bench trial in November 2018, the parties testified regarding, among other
things, their respective financial contributions. Dana also testified that she possessed both sets of
keys for the condo, and after she loaned them to Kevin or others, the keys were returned to her.
Kevin did not possess his own keys while Dana resided in the condo. Dana further testified that
when Kevin stayed in the condo during visits, it was with her consent and permission.
¶ 11 On November 27, 2018, the trial court entered an order finding that Kevin was the owner
and was entitled to possession; the court granted Dana an equitable lien against the condo in the
amount of her remodeling project expenditures, $11,527.14. The trial court declined to rule on
their respective requests for monetary relief based on “mortgage payments, use and occupancy,
etc.,” finding that, based on the evidence and testimony presented, such amounts were
“inextricably related” to Kevin’s child support payments, which were the subject of separate
litigation. The trial court opined that “leav[ing] the matter” to the other court may avoid
inconsistent rulings and result in a more expeditious resolution.
¶ 12 In her amended motion to reconsider the judgment, Dana argued that the trial court erred
in its finding that Kevin owned the condo. She also contended that the amount of the equitable
lien should have included all payments she made with respect to the condo, including the
mortgage and HOA dues, in an aggregate amount greater than $40,000. She further asserted that
the court should enter a money judgment on her unjust enrichment claim for the same amount as
the equitable lien claim. The trial court denied her motion, and Dana timely filed this appeal.
¶ 13 ANALYSIS
¶ 14 Dana advances two primary arguments on appeal. First, she contends that the trial court
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erred when it found that Kevin was the owner of the condo. Second, she argues that the trial
court improperly rejected her unjust enrichment claim. For the reasons discussed below, we
reject Dana’s contentions.
¶ 15 As a preliminary matter, we observe that Kevin’s brief on appeal fails to respond to
certain arguments raised in Dana’s brief and instead focuses on two topics: the law of
constructive trusts and the question of whether Kevin “gifted” the condo to Dana. Although
Dana sought the imposition of a constructive trust in her amended complaint, she has represented
that she did not pursue such relief at trial. While the “gift” concept was briefly mentioned in the
trial court’s judgment, such concept is inconsistent with Dana’s claim of ownership, i.e., Kevin
could not “gift” property which he did not own.
¶ 16 We recognize that when an appellee does not address arguments in his brief, his position
should be equivalent to that as if he had not filed a brief at all. Plooy v. Paryani, 275 Ill. App. 3d
1074, 1088 (1995). However, “[w]hen the record is simple, and the claimed errors are such that
this court can easily decide them on the merits without the aid of an appellee’s brief, this court
should decide the appeal on the merits.” Id. Accord Pepper Construction Co. v. Palmolive
Tower Condominiums, LLC, 2016 IL App (1st) 142754, ¶ 88 (finding “even if [the appellee] had
not responded at all, we could still address the merits of [the appellant’s] argument”). Based on
the claimed errors and the record herein, we can decide this appeal on the merits.
¶ 17 Dana acknowledges that the standard of review in a bench trial generally is whether the
judgment is against the manifest weight of the evidence. E.g., Reliable Fire Equipment Co. v.
Arredondo, 2011 IL 111871, ¶ 12. A ruling is against the manifest weight of the evidence only if
it is clearly apparent from the record that the trial court should have reached the opposite
conclusion or if the ruling itself is arbitrary, unreasonable, or not based on the evidence
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presented. Crest Hill Land Development, LLC v. Conrad, 2019 IL App (3d) 180213, ¶ 34.
Dana asserts, however, that since the issue in this appeal is whether the trial court applied the
correct legal standard, the standard of review is de novo. See Reliable Fire Equipment, 2011 IL
111871, ¶ 13. We disagree. As discussed below, we reject her contention that the trial court
“failed to acknowledge and apply controlling precedent” when determining the ownership of the
condo. Rather, we find that the resolution of this appeal requires an evaluation of the evidence
as it is applied to the law of real property ownership, i.e., a factual determination which calls for
review under the manifest weight of the evidence standard. Northwestern Memorial Hospital v.
Sharif, 2014 IL App (1st) 133008, ¶ 15.
¶ 18 The cases cited by Dana suggest that, under limited circumstances, title to property is not
necessarily indicative of property ownership. In People v. Chicago Title & Trust Co., 75 Ill. 2d
479 (1979), the state sought to impose personal liability for unpaid real estate taxes on land held
in land trusts. Our supreme court held that the “owners” of the real estate for this specific
purpose were the beneficiaries of the land trusts, not the trustees. Id. at 494. While the trustees
on the land trusts technically held title, the beneficiaries controlled the purchase, sale, rental,
management, and other aspects of land ownership, and the trustees could act only on the
beneficiaries’ written direction. Id. at 493. The court in In re Marriage of Marriott, 264 Ill.
App. 3d 23, 32 (1994), held that the husband – who was the sole beneficiary of a land trust – was
the “owner” of the residence held in the trust for purposes of property distribution in a divorce
proceeding. In In re Ulz, 388 B.R. 865, 867 (Bankr. N.D. Ill. 2008), a chapter 7 bankruptcy
trustee sued the debtor’s wife and daughter, alleging that while title to certain property had been
placed in their names, the debtor was the de facto owner because he owned, managed, operated
and controlled the property. In denying the defendants’ motion to dismiss, the bankruptcy court
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noted that, under Illinois law, “[a] person may have an interest in property – and may even be
considered the owner – although someone else has title.” Id. at 868.
¶ 19 According to Dana, the trial court failed to acknowledge and apply these cases regarding
the elements of real property ownership. We find this contention to be inaccurate. In its written
order, the trial court expressly acknowledged In re Ulz, but noted that Ulz and the other cases
cited by Dana did not support her assertion that title “deserves little, if any, weight when
deciding ownership.” The trial court acknowledged that the cases on which Dana relied indicate
that “some aspects of ownership are independent of title.”
¶ 20 As noted above, Dana’s position is not merely that the name on a title is not dispositive of
property ownership, but rather that title is effectively meaningless when determining ownership.
Citing City of Chicago v. Elm State Property LLC, 2016 IL App (1st) 152552, ¶ 24, Dana argues
that “the name on a title or mortgage is essentially irrelevant when deciding who owns real
property.” We reject her interpretation of Elm State Property. In that case, the appellate court
found that the assignment of a mortgage was not an assignment of a “[b]eneficial interest in real
property” and thus was not subject to a municipal transfer tax. Id. ¶¶ 23, 35. The Elm State
Property court neither explicitly stated nor implicitly suggested that the name on a title or
mortgage was “essentially irrelevant” when deciding ownership of property. See, e.g., City of
Virginia v. Mitchell, 2013 IL App (4th) 120629, ¶ 35 (finding that a deed was evidence of
ownership of real property).
¶ 21 In any event, the trial court’s determination that Kevin owned the condo was not
exclusively based on his name on the title. Although the trial court correctly observed that it was
“undisputed” that Kevin purchased the condo and was the only party listed on its title, that was
not the sole underpinning of the court’s determination, as is suggested by Dana. Rather, the trial
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court then discussed the testimony and evidence presented at trial regarding, among other things:
the frequency of Kevin’s visits, including visits without Dana present; Kevin’s participation in
discussions regarding condo improvements; the fact that Kevin did not have a key but was
regularly given one during his routine visits until 2016; the parties’ payment of “roughly similar
amounts” toward the mortgage and HOA dues at the time of the trial in November 2018; the
parties’ text messages; and Kevin’s eventual move to Ohio in 2015 and his subsequent return to
Illinois. Based on the foregoing, the trial court concluded that the evidence did not support
Dana’s claim of equitable ownership. We reject Dana’s argument that the court’s determination
of ownership was solely or primarily based on Kevin’s name on the condo title.
¶ 22 We are compelled to address one specific argument advanced by Dana. Dana claims that
Kevin “admitted” that she was the owner of the condo and that the trial court “cavalierly
dismissed” this purported admission. In support of this contention, Dana quotes a text message
sent to her by Kevin as follows: “It’s not MY Condo. I didn’t buy it for me . . . If [the Property]
was for me I wouldn’t have bought it. I would’ve walked at the closing and killed the sale.” The
sentence which was omitted by Dana (as reflected by the ellipses) is: “I bought it for u and E[2]
for now and eventually us.” We view this omitted sentence as relevant to the meaning of the text
message, and we are concerned regarding its repeated exclusion in documents filed in the trial
court and this court. See, e.g., State Farm Mutual Automobile Insurance Co. v. Burke, 2016 IL
App (2d) 150462, ¶ 35 (criticizing a party’s use of “strategically placed ellipses” when
describing the facts and holding of a case); David L. Lee, Red Flags, CBA Rec. 46 (Jan. 9, 1995)
(characterizing ellipses are “red flags that something may have been altered or that something is
being kept from” the court’s attention). Furthermore, we share the trial court’s assessment that
the context of the text messages suggest that Kevin did not buy the condo “solely for himself, but 2 “E” is the first initial of the parties’ son’s first name. -8- 1-19-0529
to provide for those he (at the time) considered his family.” (Emphasis in original.)
¶ 23 Under the manifest weight standard, we give deference to the trial court as the finder of
fact because the trial court is in a better position than the reviewing court to observe the
demeanor and conduct of the parties. Crest Hill Land Development, 2019 IL App (3d) 180213,
¶ 34. We will not substitute our judgment for that of the trial court as to the credibility of
witnesses, the weight to be given to the evidence, or the inferences to be drawn from the
evidence. Id. Based on the foregoing, we find that the trial court’s determination regarding
Kevin’s ownership of the condo was not against the manifest weight of the evidence.
¶ 24 Dana next argues that the trial court erred when it “rejected” her unjust enrichment claim.
She contends that she is entitled to a monetary judgment as to any awarded amounts. She also
asserts that “it makes no sense, from a legal or factual perspective, that the trial court awarded an
equitable lien for the improvement payments, but not payments for the mortgage, condominium
dues, and repairs.” As discussed below, we reject these contentions.
¶ 25 The circuit court granted Dana an equitable lien as to the $11,527.14 she expended for
the remodeling work on the condo. In her opening brief, she acknowledges that this amount was
paid out of the proceeds of the sale of the condo in August 2019, and the lien has been released.
Thus, there are no remaining issues on appeal as to the $11,527.14 equitable lien. E.g., In re
Alfred H.H., 233 Ill. 2d 345, 351 (2009) (noting that “[a]s a general rule, courts in Illinois do not
decide moot questions, render advisory opinions, or consider issues where the result will not be
affected regardless of how those issues are decided”); In re Jonathan P., 399 Ill. App. 3d 396,
400 (2010) (providing that an appeal is deemed moot where it presents no actual controversy or
where the issues involved in the trial court no longer exist because intervening events have
rendered it impossible for the reviewing court to grant effective relief).
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¶ 26 Dana argues that the trial court should have also awarded her the amount of $28,938.10,
representing $4000 in repair expenses, and $17,892.10 in mortgage payments and $7046 in HOA
dues from June 2014 until July 2016. Although not expressly referenced in the trial court’s
order, it appears that by solely ruling as to the $11,527.14 in remodeling expenses, the court
rejected her claim as to the $4000. While Dana contends that the amounts she allegedly spent in
repairs are comparable to the $11,527.14 she expended on the remodeling project, we observe at
least one critical distinction: the record does not include receipts in support of the $4000 claim.
We note that Dana testified and submitted photographs as to the purported repairs; however, we
will not substitute our judgment for that of the trial court regarding witness credibility, the
weight to be given to evidence, or the inferences to be drawn therefrom. Crest Hill Land
Development, 2019 IL App (3d) 180213, ¶ 34. To the extent that the trial court rejected Dana’s
claim for alleged repairs, such determination was not against the manifest weight of the
evidence.
¶ 27 As to the $24,938.10 in mortgage payments and HOA dues ($17,892.10 + $7046), Dana
contends that these payments increased the value of the condo, as did the remodeling project.
We recognize – as did the trial court – that the remodeling project (on which Dana spent
$11,527.14) increased the value of Kevin’s condo. Conversely, while her mortgage payments
may have increased the equity in the condo (e.g., Rizzo v. Rizzo, 95 Ill. App. 3d 636, 650 (1981)),
the effect of such payments on its value is questionable. The fact that the property sold for an
amount in excess of the $140,000 purchase price does not necessarily evidence a causal
connection between Dana’s payments and the increase in value. We further note that, as the sole
obligor on the mortgage debt, Kevin bore the risk of a potential decrease in the condo’s value.
While Dana contends that Kevin would retain an unjust benefit if he were permitted to retain the
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value of her mortgage payments and other condo-related payments, the relief requested by Dana
could effectively result in her having lived for years in the condo rent-free.
¶ 28 In any event, the trial court did not outright reject her claim regarding her payments of
the mortgage and HOA dues. According to Kevin, the trial court “expressly left the issue of
reimbursement for mortgage payments, condominium dues and insurance to a different court
hearing the parties’ child support issues.” Dana contends that “the trial court said no such thing.”
For clarity purposes, we set forth the relevant paragraph of the trial order:
“Finally, the court declines to rule on the parties’ respective pleas for
monetary relief based on mortgage payments, use and occupancy, etc. It was
readily apparent from the evidence and testimony that such payments were
inextricably related to what the parties considered to be child support payments
from [Kevin]: for example, in certain months [Kevin] did not pay any child
support, but did pay the mortgage and [c]ondo dues, suggesting he considered all
living expenses and child support to be interchangeable. The total amount of
child support he owes is the subject of other pending litigation, and the court will
leave the matter to that court in the interest of avoiding inconsistent rulings and a
probably more expeditious resolution thereof.”
In her reply brief, by quoting only the final sentence of the foregoing, Dana arguably misstates
the court’s ruling as to this issue. E.g., Burke, 2016 IL App (2d) 150462, ¶ 36 (rejecting a
party’s characterization of a judicial decision “despite the fact that the quoted words exist in the
case”). Furthermore, in her description of the amounts at issue in the case, she focuses solely on
her claims for the mortgage payments and related expenditures, but seemingly disregards
Kevin’s request for use and occupancy payments. The trial court herein indicated that it was
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deferring to the other court as to both parties’ “respective pleas for monetary relief” (emphasis
added).
¶ 29 We are untroubled by the trial court’s decision to leave the parties’ requests for monetary
relief up to another court handling the child support matters. As we agree with the trial court’s
assessment of the evidence – i.e., that the evidence suggested that the parties’ condo-related
expenditures were linked to the child support payments – we view the trial court’s deference to
its fellow court as a sound decision in the interest of judicial economy. See, e.g., Flexible
Staffing Services v. Illinois Workers’ Compensation Comm’n, 2016 IL App (1st) 151300WC,
¶ 27 (noting that “[t]he commission is not required to abandon common sense in rendering its
decision”); Crawford County Oil, LLC v. Weger, 2014 IL App (5th) 130382, ¶¶ 11, 19
(addressing a particular issue “in the interests of judicial economy and the need to reach an
equitable result”); In re Marriage of Bennett, 225 Ill. App. 3d 828, 833 (1992) (same).
¶ 30 CONCLUSION
¶ 31 For the reasons stated herein, the judgment of the circuit court of Cook County is
affirmed in its entirety.
¶ 32 Affirmed.
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