SIXTH DIVISION March 14, 2008
No. 1-05-3134
M. L. LAH, as Trustee u/t/a ) Appeal from the dated February 13, 2001, a/k/a ) Circuit Court of Trust No. 5226, ) Cook County ) Plaintiff and ) Counterdefendant-Appellee, ) ) ) v. ) ) ) CHICAGO TITLE LAND TRUST COMPANY, as ) Trustee u/t/a dated June 26, 2002, ) a/k/a Trust No. 1111039; CHICAGO TITLE ) LAND TRUST COMPANY, as Trustee u/t/a ) dated November 14, 2001, a/k/a Trust No.) 1110352; CHICAGO TITLE LAND TRUST ) COMPANY, as Trustee u/t/a dated ) November 5, 2001, a/k/a Trust No. ) 1110090 ) ) Defendants and ) No. 02 CH 21631 Cross-defendants-Appellees, ) ) ) ) LaSalle Bank, NA, as Trustee u/t/a ) dated March 19, 2001, a/k/a Trust No. ) 127392, ) ) Defendant and ) Counterplaintiff-Appellant; ) ) ) Valerian Simirica, ) ) Defendant and ) Counterplaintiff and ) Cross-plaintiff-Appellant; ) No. 1-05-3134
) ) Robert Ambriz, ) ) Defendant and ) Honorable Cross-defendant-Appellee. ) Mary Anne Mason Appellee. ) Judge Presiding
JUSTICE McNULTY delivered the opinion of the court:
In a dispute over title to a parcel of Chicago real
property, the circuit court denied the claims of Valerian
Simirica because his title was fraudulent and because he was not
a good-faith purchaser who lacked notice of the fraud. The court
further held that the competing claimant, John Waters, should be
granted title to the property despite securing it through actions
that were "inequitable (at best) and more likely, unlawful,"
because those actions, in a prior proceeding, harmed a third
party, not Simirica, and could not be raised by Simirica as
support for his claims. While we agree with the circuit court's
assessment of the merits of Simirica's claims, we do not agree
that it lacked authority to address Waters' improprieties or that
it was obliged to award him title to the property. Accordingly,
we affirm the court's disposition of Simirica's claims, vacate
its award of title in fee simple to Waters, and remand for
further proceedings.
BACKGROUND
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The instant appeal comes to this court without the filing of
an appearance or brief by any party other than appellant Valerian
Simirica. Under such circumstances, a reviewing court is not
required to search the record for the purpose of sustaining the
trial court's judgment, but if the claimed errors are such that a
court can decide them without the aid of an appellee's brief, the
reviewing court "should decide the merits of the appeal." First
Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d
128, 133 (1976). We find the issues and record before us in the
instant case to be sufficiently straightforward that the matter
may fairly resolved despite the absence of an appellee's brief,
and so proceed to the merits.
Plaintiff M. L. Lah, trustee for a land trust whose
beneficiary was John Waters, commenced an action to quiet title
to a parcel of residential property in Chicago. Defendant
Valerian Simirica, beneficiary of a land trust administered by
defendant LaSalle Bank, also claims title to the property on
behalf of his trustee.
At trial, Waters testified that he bought and rehabbed
distressed properties in the Chicago area; that an acquaintance,
Nathan Edmond, sometimes advised him of properties that were
about to be sold for delinquent taxes; and that on February 12,
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2001, Edmond informed him that the owner's period for redemption
of the subject property was to expire the next day.
Waters testified that he visited the property, saw a single-
family home on a residential lot, and learned from a neighbor the
name and telephone number of the property's owner, Nancy
Kwiatkowski. Waters called Kwiatkowski, and when she told him
that she did not intend to redeem the property, he offered to
purchase it for $10,000. Waters testified that he and
Kwiatkowski reached an oral agreement for purchase of the
property over the telephone, but he did not recall giving her any
information about the redemption process. Waters conceded that
when he went to Kwiatkowski's workplace to attempt to finalize
the purchase, she told him that she was not ready to proceed.
Despite his failure to reach agreement with Kwiatkowski,
Waters redeemed the unpaid taxes on the last day of the
redemption period, February 13, 2001. Waters and Kwiatkowski
reached agreement for the sale of the property for $25,000 on
March 16, 2001. Both the deed from Kwiatkowski to Waters'
trustee and the purchase contract executed on March 16 were back-
dated to February 13, 2001, and Waters testified that he put the
earlier date on the deed because he "wanted to be sure that I had
an interest in the property at the time I made the redemption so
that the redemption could not be set aside." When a tax
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purchaser, Mooring Tax, did attempt to expunge Waters'
redemption, he produced the deed, his redemption was apparently
held to be proper, and the Mooring Tax expungement petition was
denied. Waters did not record the deed from Kwiatkowski until
September 2002.
Valerian Simirica's claim of title descends from a second
deed from Kwiatkowski. Waters' acquaintance, Nathan Edmond,
testified at trial that after informing Waters about the pending
tax sale, he also gave Waters half of the approximately $4000
needed to cure the property's tax delinquency. According to
Edmond, Waters represented that he would handle the details of
the purchase from Kwiatkowski; Edmond said that he expected to be
identified as a co-owner of the property on the deed that
Kwiatkowski executed. Edmond attended a court hearing on the
Mooring Tax expungement petition and saw a deed from Kwiatkowski
that did not identify him as a purchaser.
Edmond testified that he did not find any deed from
Kwiatkowski recorded, that he was still interested in acquiring
the property, and that after approaching Kwiatkowski and her
attorney, he got a deed to the property. The record presented to
this court includes a quitclaim deed from Kwiatkowski to a trust
administered by Chicago Title Land Trust Company; the deed was
prepared by Edmond and indicates that the consideration for the
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transfer of interest was $10. Edmond testified that he was not
the beneficiary of the grantee land trust, and that he was not
sure whether the beneficiary was a corporation or an individual
named Andy Roman. Although the deed from Kwiatkowski to the
trust was dated March 16, 2001, the land trust which received the
deed was not created until June 26, 2002, which was also the date
on which the deed was recorded. Simirica claims title to the
property through a chain of land trust transactions stemming from
this deed.
Lah, Waters' trustee, filed an action to quiet title which
alleged that the deed prepared by Edmond to convey the property
from Kwiatkowski to a land trust was a forgery; that the deed
failed because it conveyed to a nonexistent grantee: a land trust
that had not yet been created; and that purchasers whose claims
came from the Edmond deed could not defeat Waters' claim of title
because they were aware that Waters was in possession of the
property.
Simirica counterclaimed through his land trust, alleging
that he had purchased the property on August 23, 2002 without
notice of any competing ownership claims and that his trust had
superior claim to the property. Simirica also filed a cross-
claim against Robert Ambriz, alleging that he had purchased the
property from Ambriz through multiple land trust transactions and
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that Ambriz's failure to convey good title was damaging him to
the extent of the losses he suffered in the Waters-Lah action.
In addition, Simirica filed an action to eject a tenant who
apparently leased the property from Waters.
At trial, Waters testified that he had begun rehab work on
the property to prepare it for resale, and that in the course of
that work, he saw evidence that the home on the property had been
broken into. A neighbor to the property told Waters that he had
seen Simirica's brother entering the house, and that the brother
had given him a business card from Simirica's real estate
company. Waters also testified that he went to Simirica's
office, that Simirica reported that he had purchased the property
from an individual named Andy Roman, and that when Waters told
Simirica that he owned the property, Simirica answered that he
"should settle up with Nate Edmond."
Simirica testified that Andy Roman was a real estate agent
he had known for many years, and that Robert Ambriz, a realtor
who worked for Roman's agency, had told him about the property.
Simirica stated that he had visited the property with Ambriz just
before submitting a purchase contract, but that he did not ask if
Ambriz had a key to the house and did not ask to see the interior
of the house. Simirica visited the property once again before
closing, but again did not seek entry into the house, and did not
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receive keys to the house at closing. Simirica testified that he
took possession of the house by removing plywood boarding from
the back door.
The trial court noted that much seemingly relevant evidence
had not been presented at trial: Kwiatkowski was not called as a
witness by either Waters or Simirica, neither Ambriz nor Roman
testified, and Edmond was not asked to explain the conveyance to
Roman.
The court found that Simirica's claim to the property
stemmed from a fraudulent deed: though the Edmond deed was dated
March 16, 2001, the same date the Kwiatkowski-Waters deed was
actually executed, the court found that Edmond's testimony
established that his dealings with Kwiatkowski and her attorney
occurred some time in 2002, after she had conveyed her interest
in the property to the Waters-Lah trust.
Having found Simirica to be a purchaser from a fraudulent
title claimant, the court held that his claim on the property
could prevail only if he demonstrated that he had given actual
value for the property in good faith, without notice of the cloud
on its title. The court determined that Simirica failed to
sustain this burden. "Simirica's testimony that he contracted to
pay $100,000 cash for the property without ever seeing the inside
or so much as looking through the window strains credulity.
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While dealers in distressed realty often purchase property 'as
is,' anyone motivated to make a profit would want to know in
advance how much of an investment would be required to render the
property habitable. Moreover, Simirica never asked Ambriz, a
realtor who purported to own the property, for a key and was
content to have to break into the property after the close.
Indeed, it is apparent to the Court that Simirica's testimony was
designed to convey complete ignorance about the condition of the
property so as to reinforce his claim that he knew nothing that
would have put him on notice that someone else owned the
property." The court also remarked that Simirica's reported
statement to Waters that he should "settle up" with Edmond cast
doubt upon his claims of lack of notice. Finally, the court held
that despite producing a contract that reflected his agreement to
pay $100,000 for the property, Simirica did not provide any proof
of an actual payment for the property.
The court concluded that Simirica, having taken title to the
property with notice of an adverse claim, acted at his own risk,
and held that he could not prevail in his couterclaim for title,
his action for ejectment of Waters' tenant, or his third-party
claims against Ambriz.
The court then addressed Waters' claim to the property. It
determined that he did not have an interest in the property until
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March 16, 2001, when he executed an agreement to purchase the
property and obtained a deed from Kwiatkowski, and that on
February 13, 2001, when he redeemed the property's delinquent
taxes, he did not have the interest required by Illinois law for
redemption. "Under these circumstances it appears that Waters
was a stranger to the title when he redeemed on February 13,
2001."
The trial court, clearly troubled by Waters' back-dating of
his deed from Kwiatkowski, commented, "On a very fundamental
level, the Court is reluctant to award equitable relief to a
party who has engaged in inequitable (at best) and more likely,
unlawful conduct. Waters mislead [sic] the Clerk's Office when
he sought to redeem the property, he mislead [sic] Edmond
regarding his intention to include him in the purchase and, most
disturbingly, he mislead [sic] a judge of the Circuit Court of
Cook County when he produced a deed that purported to convey an
interest to him as of a date when he had no colorable claim to
the property."
But the court concluded that the expungement proceeding was
"a fait accompli" with respect to the case before it. The court
determined that Simirica could not benefit from Waters' unclean
hands because none of Waters' improper conduct had been directed
at him. The court held that because Waters' trustee was the
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grantee under the only valid deed to the property, it was the
proper titleholder.
Simirica appeals. No other party has appeared in this
court. As noted previously, we find the instant appeal to
present issues that are sufficiently straightforward to allow our
resolution without the assistance of an appellee's brief, and
therefore address the merits.
ANALYSIS
Simirica contends that the trial court erred in finding that
he was not a bona fide purchaser without notice of Waters' claim
to the property. That finding may be disturbed in this court
only upon a showing that it is against the manifest weight of the
evidence. Guzik v. Wujek, 132 Ill. App. 2d 336, 339-40 (1971).
A finding is against the manifest weight of the evidence only
when the opposite conclusion is clearly evident. BCGS, L.L.C. v.
Jaster, 299 Ill. App. 3d 208, 216 (1998).
Trial court error has not been demonstrated here. In our
view, Simirica's willingness to purchase the property without
inspection of its interior and his closing of the purchase
without receiving keys strongly support the trial court's
conclusion that he had actual notice of a competing claim to the
property. This conclusion is further supported by Waters'
testimony that Simirica told him to settle his claim with Edmond.
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Simirica argues that he appropriately relied on the results of a
title search which revealed no competing claims, but this fact
could reasonably be determined by the trial court to be
outweighed by the evidence supporting the conclusion that
Simirica was aware of the Waters claim.
Simirica's contention that he did pay actual value for the
property is similarly insufficient to require reversal of the
trial court's contrary finding. He argues that his deed
demonstrates that he gave consideration for the property and that
various trial exhibits served as evidence of his actual payment
for the property, but neither the deed nor the exhibits cited in
his brief in this court have been made a part of the appellate
record. In the absence of an appellate record sufficient to
demonstrate that the trial court's finding was contrary to the
manifest weight of the evidence, we must presume that finding to
be correct. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984).
We accordingly reject Simirica's argument for reversal of
the trial court's finding that he was not a bona fide purchaser
without notice. The rejection of that argument dictates a
similar rejection of Simirica's argument that the trial court
erred in denying relief on his cross-claims against the parties
who conveyed the property to him. A party who receives property
with notice of other claims takes title subject to those known
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claims. American National Bank & Trust Co. v. Vinson, 273 Ill.
App. 3d 541, 544 (1995). The clear import of Simirica's notice
of Waters' claims on the property is that he cannot assert that
he has been injured by those claims. Simirica's cross-claim
against Ambriz did not allege that Ambriz warranted clear title,
and Simirica makes no such claim of breach of warranty in this
court; we therefore conclude that the trial court properly
dismissed his claims against Ambriz and his other land trust
grantors as a result of its finding that he had notice of the
Waters claim.
Simirica next contends that Waters could not be granted
title to the property because of the trial court's finding that
Waters had redeemed the property's delinquent taxes before
acquiring any interest and then defeated the tax purchaser's
acquisition by producing a deed which falsely indicated that he
had purchased the property from Kwiatkowski before the lapse of
the redemption period.
The trial court correctly observed that a party attempting
to redeem a property tax delinquency must have at least some
interest in the property, however incomplete or undefined. In re
Application of the Cook County Treasurer, 185 Ill. 2d 428, 433
(1998). The court observed that Waters, at the time he redeemed,
had not reached agreement with Kwiatkowski for purchase of the
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property and had no legal or equitable title claim. The court
further noted that there was no evidence that Kwiatkowski
directed Waters to redeem.
Emphasizing these facts, Simirica argues, as he did in the
trial court, that Waters' actions gave him unclean hands and
should bar him from an award of title to the property. The trial
court ruled that since the Waters conduct at issue was not
directed at Simirica and did directly involve the title dispute
between the two parties, Simirica could not invoke the unclean
hands doctrine to prevail against Waters. We agree. Cole v.
Guy, 183 Ill. App. 3d 768, 776-77 (1989). The court then
concluded that it was without jurisdiction to address its
concerns about Waters' conduct, and that since his claim of title
was superior to that of Simirica, its only choice was to award
him the property in fee simple. We do not believe that the
court's options were so foreclosed.
Waters' admission that he had backdated his deed from
Kwiatkowski established the possibility that the tax sale
purchaser, Mooring Tax, had an interest in the property that had
been improperly defeated. The trial court was empowered to
address this occurrence by allowing Mooring Tax to be joined as a
party to the quiet title proceeding to permit it to address the
defeat of its purchase.
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The failure to join a necessary party may be raised at any
time: by the parties or by the trial court or appellate court sua
sponte. Lakeview Trust & Savings Bank v. Estrada, 134 Ill. App.
3d 792, 811 (1985). A necessary party is one whose presence in a
lawsuit is required for any of three reasons: (1) to protect an
interest which the absentee has in the subject matter which would
be materially affected by a judgment entered in his absence; (2)
to reach a decision to protect the interests of those who are
before the court; or (3) to enable the court to make a complete
determination of the controversy. In re Application of Busse,
145 Ill. App. 3d 530, 535 (1986). In the instant case, the facts
presented to the trial court revealed that Mooring Tax may have
been prevented from taking title to the property by fraud; we
believe these facts revealed an interest in the title proceedings
sufficient to require the company's inclusion. The trial court
explicitly expressed dissatisfaction at its apparent inability to
address Waters' conduct; we believe that a complete determination
of the controversy would have enabled an opportunity for Mooring
Tax to assert its claim to the title.
CONCLUSION
For the foregoing reasons, we affirm the portion of the
judgment of the circuit court of Cook County which denies
Simirica relief on his claims for title to the property, his
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claims for ejectment, and his claims against Ambriz and the land
trusts that conveyed the property to him. We reverse that
portion of the judgment which grants title in fee simple to
Waters' trustee, Lah, and remand the cause to the circuit court
3for further proceedings allowing the joinder of Mooring Tax and
any other party found by the court to be necessary to a complete
and equitable resolution of the title dispute.
Affirmed in part and reversed in part; cause remanded.
McBRIDE, P.J., and O'MALLEY, J., concur.
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__________________________________________________________________________________________________________________________ REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be Attached to Each Case) _________________________________________________________________________________________________________________________ Please use the following form M.L. Lah, as Trustee u/t/a dated February 13, 2001, a/k/a Trust No. 5226,
Plaintiff/Counter-Defendant-Appellee,
v.
Chicago Tile Land Trust Co., as Trustee u/t/a dated June 26, 2002, a/k/a Trust No. 1111039; Chicago Title Land Trust Co., as Trustee u/t/a dated November 14, 2001, a/k/a Trust No. 1110352; Chicago Title Land Trust Company, as Trustee u/t/a dated November 5, 2001, a/k/a Trust No. 1110090,
Defendants/Cross-defendants-Appellees,
LaSalle Bank, NA, as Trustee u/t/a dated March 19, 2001, a/k/a Trust No. 127392,
Defendant/Counter-plaintiff-Appellant,
Valerian Simirica,
Defendant/Counter-plaintiff/Cross-plaintiff-Appellant,
Robert Ambriz,
Defendant/Cross-defendant-Appellee. _____________________________________________________________________________________________ No. 1-05-3134 Docket No. Appellate Court of Illinois COURT First District, SIXTH Division Opinion Filed March 14, 2008 (Give month, day and year) __________________________________________________________________________________________ JUSTICE JILL K. McNULTY DELIVERED THE OPINION OF THE COURT:
JUSTICES McBRIDE, P.J., and O’MALLEY, J., concur.
Lower Court and Trial Judge(s) in form indicated in margin: APPEAL from the Circuit Court of Cook Appeal from the Circuit Court of Cook County. County; the Hon________ Judge Presiding. The Hon. MARY ANNE MASON Judge presiding. __________________________________________________________________________________________________________________________ Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word r FOR APPELLANTS NONE if not represented. John Doe, of Chicago
For APPELLEES, : APPELLANT: LAW OFFICES OF BURTON BROWN, Chicago, IL, Burton A. Brown and Stephen J. Spiegel. Smith and Smith of
17 No. 1-05-3134
Chicago, APPELLEE: NONE