2021 IL App (1st) 191153-U No. 1-19-1153 Order filed March 31, 2021 Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ MIDEN PROPERTY HOLDINGS, INC., ) Appeal from the ) Circuit Court of Plaintiff, ) Cook County. ) v. ) No. 09 CH 12423 ) MURAD SWEISS, ELITE FINANCIAL ) INVESTMENTS, INC., CHICAGO TITLE LAND ) TRUST COMPANY as Trustee under Trust No. 03-9894, ) THOMAS KAPUT, JOSEPH COLUCCI, MELISSA ) SWEISS, and Unknown Owners and Non-Record ) Claimants, ) ) Defendants, ) ) (Elite Financial Investments, Inc., and Thomas Kaput, ) Honorable Third-Party Plaintiffs-Appellees; and Melissa Landis- ) Sanjay Tailor, Sweiss, Third-Party Defendant-Appellant). ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court. Presiding Justice Gordon and Justice Reyes concurred in the judgment. No. 1-19-1153
ORDER
¶1 Held: In the third-party plaintiffs’ action seeking declaratory relief and to quiet title to real property and asserting claims of trespass to chattel and slander of title, the trial court did not abuse its discretion by allowing the plaintiffs to amend their third- party complaint, excluding evidence and awarding punitive damages.
¶2 In a title dispute over real property, third-party plaintiffs Elite Financial Investments, Inc.
(Elite) and Thomas Kaput sought declaratory relief and compensatory and punitive damages
against third-party defendant Melissa Landis-Sweiss (Melissa) based on allegations that she
engaged in fraud and forged Kaput’s signature to a warranty deed to convey the disputed property
to herself.
¶3 After a bench trial, the court entered judgment in favor of Kaput and against Melissa,
declared that Kaput was the rightful owner of the property, declared the forged warranty deed null
and void, and awarded Kaput $15,000 in compensatory damages for trespass to chattel and
$175,000 in punitive damages for slander of title.
¶4 On appeal, Melissa argues the trial court erroneously (1) allowed the filing of an amended
third-party complaint against her on the eve of trial, (2) denied her motion for judgment on the
pleadings, (3) denied her motion to bar expert witness testimony, (4) excluded evidence of a letter
of direction concerning the property at issue from her husband to a title company, and (5) awarded
punitive damages against her.
¶5 For the reasons that follow, we affirm the judgment of the circuit court with a modification
concerning the award for punitive damages. 1
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
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¶6 I. BACKGROUND
¶7 This appeal arose from a controversy involving three adjacent parcels of real estate,
commonly known as 1912, 1914-1916, and 1918 West Division Street, Chicago, Illinois. This
appeal involves the 1912 West Division Street property (the Property). 2
¶8 This action was initiated on March 19, 2009, when Miden Property Holdings, Inc. (Miden)
filed a complaint to foreclose a judgment lien against the Property. Miden was a judgment creditor
of defendant Murad Sweiss (Murad) due to a December 7, 2007 judgment in case No. 04 CH 2629
in favor of Miden and against Murad for $270,000. The complaint alleged the judgment was
recorded on December 17, 2007.
¶9 On April 13, 2009, Murad and Elite Financial Investments, Inc. (Elite) moved to dismiss
the complaint, arguing that the title holder to the Property was Elite and Murad had no right, title
or interest in the Property. Attached to the motion was a copy of a December 20, 2007 trustee’s
deed, which stated that the land trust number 03-9894 conveyed and quit claimed the Property to
“Elite Financial, Inc.” for $10. That trustee’s deed was recorded on December 21, 2007. Later, this
motion to dismiss was withdrawn and Miden was given leave to file an amended complaint.
¶ 10 In November 2009, Miden filed an amended complaint for declaratory relief, fraudulent
conveyance and mortgage foreclosure. Miden alleged defendants engaged in a scheme to
fraudulently move Murad’s assets beyond the reach of the court and Miden when defendants
attempted to transfer title of the Property to the entity “Elite Financial, Inc.” (EFI) via the
December 2007 trustee’s deed. Miden alleged that the attempted transfer, however, was invalid
2 The other parcels of property were litigated in Sweiss v. Vitogiannis, case Nos. 04 CH 2629 and 1-08-2118, and American Chartered Bank v. Colluci, case No 09 CH 16591.
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and illegal because EFI did not exist when the trustee’s deed was recorded. Specifically, EFI was
an Illinois corporation that had been dissolved involuntarily in October 1998 and neither Murad
nor defendant Thomas Kaput ever had an interest in EFI. Miden argued that, because the transfer
of title to EFI was neither legal nor valid, the title to the Property legally remained in trust number
03-9894.
¶ 11 Miden also alleged that Murad subsequently caused two more deeds to be created, executed
and recorded in an attempt to transfer the Property again. One, a warranty deed dated May 13,
2008, and recorded on August 28, 2009, purported to transfer the Property from EFI to Murad’s
wife, Melissa. This warranty deed bore the purported signature of Kaput as the president of EFI.
The other deed was the December 20, 2007 trustee’ deed, which was previously recorded on
December 21, 2007, but now was altered to change or correct the grantee from EFI to Elite and
was recorded again on September 29, 2009. Miden argued that these transfer and changes to the
deeds were fraudulent and done without authority to cloud the title. Ultimately, the trial court
would dismiss Miden’s amended complaint for want of prosecution.
¶ 12 In their March 2010 answer, defendants Kaput and Elite, which was Kaput’s company,
denied the allegations of wrongdoing. They denied that Murad was Kaput’s longtime partner but
admitted that Murad was an employee for a period of time. They admitted that Elite claimed an
interest in the Property. They alleged that the December 20, 2007 trustee’s deed conveyed the
Property to Elite, not EFI, and they had no knowledge of Miden’s judgment against Murad when
the Property was transferred. They alleged the original reference in the trustee’s deed to EFI instead
of Elite was a typographical error, which they corrected when they recorded the trustee’s deed
again on September 29, 2009. They alleged that the trustee’s deed accurately listed Elite’s
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address—1914-1916 West Division—and thereby demonstrated that the intended recipient was
Elite and not EFI. Kaput denied signing any deed transferring any property to Melissa. Kaput and
Elite moved to dismiss Miden’s foreclosure claim, arguing that Miden had no standing because it
was not a creditor of Elite and did not legally possess any mortgage between either Miden and
Elite or Elite and Murad.
¶ 13 On October 8, 2010, Kaput, the sole officer/principal of Elite, and Elite moved for leave to
file a crossclaim seeking a declaratory judgment and a claim to quiet title against defendants Murad
and Melissa for preparing a fraudulent warranty deed that purported to transfer the Property in the
name of Elite to Melissa. Kaput and Elite alleged that in November or December 2007, Kaput
agreed to allow Murad to secure a $250,000 loan against another lot that was in Elite’s name.
As security for that loan, Murad transferred the Property into the name of Elite. Thereafter, Murad
and Melissa, without the knowledge of Kaput and Elite, forged Kaput’s signature on the May 2008
warranty deed to transfer the Property into Melissa’s name. Kaput and Elite never received any
consideration for this purported sale. The forged warranty deed was recorded in August 2009.
Furthermore, that deed was prepared by Aaron Spivack, a friend and attorney of Murad. Spivack
notarized the deed and his former employee notarized the statement by grantor and grantee. Kaput
and Elite asked the court to declare that the May 2008 warranty deed was ineffective to transfer
title of the Property from Elite to Melissa; the purported transfer of the Property through the
delivery and recordation of Melissa was null and void; Elite has held title to the Property since
December 2007; Melissa never held legal or equitable title to the Property; and the warranty deed
purporting to transfer the Property from Elite to Melissa was invalid and legally ineffective. Kaput
and Elite also asked the court to quiet title to the Property in Elite’s name and award them costs,
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expenses and other appropriate relief. On October 22, 2010, the trial court granted Kaput and
Elite’s motion to file their crossclaim.
¶ 14 In June 2013, the trial court granted Kaput and Elite’s motion for leave to file a third-party
complaint to quiet title and for declaratory relief against Melissa. They alleged that Elite was
named as the owner of the Property via the December 2007 trustee’s deed, but that deed failed to
correctly list Elite’s name. On March 5, 2008, a notice of correction was filed with the recorder’s
office to record the trustee’s deed again with Elite’s correct name. On May 13, 2008, Melissa
executed a warranty deed that purportedly transferred the Property from Kaput, as the president of
the incorrectly listed EFI, to Melissa. Kaput, however, never signed that warranty deed or
authorized anyone to sign it. Melissa had no interest in the Property, the warranty deed was
fraudulent, and she falsely executed and recorded it to cloud the chain of title on the Property.
Kaput and Elite asked the court to declare Elite the rightful owner of the Property and declare the
warranty deed executed by Melissa invalid and void.
¶ 15 On September 18, 2014, Kaput and Elite moved for a default order against Melissa based
on her failure to appear and file a responsive pleading to their third-party complaint. However,
Melissa filed an appearance on October 14, 2014. Her counsel was subsequently disqualified.
¶ 16 On February 10, 2015, Kaput and Elite moved for a default judgment against Melissa,
based on her failure to file an appearance with new counsel and respond to the third-party
complaint. The trial court entered a default order against her and set the matter for prove up.
However, in March 2015, Melissa’s counsel filed an appearance and moved to vacate the default,
which the trial court granted in April 2015.
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¶ 17 On February 7, 2017, the court dismissed Miden’s case for want of prosecution, but Elite
and Kaput’s 2013 third-party complaint against Melissa was still pending. On March 2, 2017, the
court reinstated this case with Elite and Kaput as the plaintiffs and Melissa as the defendant.
On June 19, 2017, the court dismissed Kaput as a party, but he was later revived as a co-plaintiff
with Elite when they filed their amended third-party complaint on April 15, 2019. This complaint
added counts for trespass to chattel, a business accounting and slander of title, which requested
punitive damages.
¶ 18 Meanwhile, on March 12, 2019, Melissa filed a motion for judgment on the pleadings as
to the 2013 third-party complaint. The sole issue advanced in this motion was that the scrivener’s
errors regarding the case number and attached exhibit mandated dismissal. This motion was fully
briefed and argued before the trial court and ultimately denied on April 15, 2019.
¶ 19 The bench trial took place on April 16, 17, 18 and 24, 2019. On May 3, 2019, the court
entered judgment in favor of Kaput and against Melissa. The following summary is taken from the
court’s 10-page written judgment.
¶ 20 Based on the evidence at trial, the court found that Elite operated a mortgage brokerage
firm from 2003 until it closed in 2008. It was administratively dissolved on August 12, 2011, for
failure to file an annual report and pay a franchise tax. Kaput, a licensed real estate broker, was
Elite’s sole officer, director and shareholder. Before the housing market downturn in late 2008,
Elite had several offices in Chicago and employed 75 loan officers.
¶ 21 Kaput met Melissa and Murad at a realtor convention. Elite employed them from 2004 to
2007. Although Murad was given the title of chief executive officer of Elite, he only managed a
branch office of Elite, did not have a real estate broker’s license, was not an officer or director of
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Elite, and did not have any ownership interest in Elite. He was paid on commission and was
Kaput’s trusted confidant. At Murad’s request, Elite hired Melissa to work as a loan processor on
an independent contractor basis.
¶ 22 Between 2007 and 2008, Murad borrowed a total of $950,000 from Elite to finance his real
estate development projects outside of Elite. On June 12, 2007, Murad executed a promissory note
in favor of Elite for $237,000. Kaput also maintained a ledger of some of the money that Murad
borrowed from Elite. However, other than that note and ledger, there was no documentation of the
money that Murad borrowed from Elite. The court found that Kaput credibly testified that he did
not require Murad to execute a promissory note for the entire $950,000 because Kaput trusted him.
¶ 23 Murad owned the beneficial interest in a land trust that held title to the Property. In late
2007, Murad and Kaput agreed that, in order to satisfy Murad’s indebtedness to Elite, Murad would
direct the title company, as the trustee of the land trust, to transfer to Elite the Property and
additional property located at 1918 West Division Street in Chicago. On December 20, 2007, the
title company executed a trustee’s deed conveying the Property to EFI, which did not exist at the
time. The court found that the trustee’s deed for the Property contained a scrivener’s error because
Murad intended to transfer the Property to Elite. Accordingly, the court reformed the trustee’s deed
to conform to Murad and the title company’s intent to transfer the Property to Elite. The court
found that Melissa’s testimony that EFI was a company Kaput and Murad intended to form to
jointly develop the Property lacked foundation and was based on hearsay.
¶ 24 Melissa’s claim to the Property rested on the disputed May 13, 2008 warranty deed,
pursuant to which EFI, which did not exist then, transferred the Property to her. When Melissa
was called by Kaput and Elite as an adverse witness, the court found that she was not credible.
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She immediately launched into a harangue and protested the court’s alleged lack of jurisdiction
over her even though she had defended this case on the merits for several years. She argued she
had no time to prepare for trial even though the trial was set months ago. She was evasive and
oftentimes combative. The court found that the credible evidence established that Melissa was not
the victim here but rather played a starring role in a scheme to defraud Kaput and Elite out of the
Property.
¶ 25 According to Melissa, Kaput owed Murad $950,000 and the May 2008 warranty deed
transferred the property to Melissa to satisfy Kaput’s debt to Murad. Melissa did not call Murad,
a Florida resident, as a witness, and the trial court granted Murad’s motion to quash the subpoena
to compel his appearance at trial based on Kaput and Elite’s failure to cite any legal authority that
would permit the court to compel Murad’s appearance. The court excluded Melissa’s testimony
regarding Murad’s business dealings with Kaput and Elite based on lack of foundation, hearsay
and other evidentiary defects because Melissa admitted that her knowledge of Murad’s business
dealings was based on what he told her. Melissa offered no evidence to challenge the $237,000
promissory note that Murad executed in favor of Elite or the ledger evidencing other amounts of
money Murad borrowed from Elite. Melissa asserted that Murad wanted to appear at the hearing
and attributed his absence to financial constraints and attending activities that had been planned
for their minor children.
¶ 26 The court found that the May 2008 warranty deed was forged to indicate that Kaput signed
it as the president of EFI. Moreover, the statement by the grantor and grantee appeared to be signed
by the same person and Melissa did not establish that person’s identity. Kaput testified credibly
that he did not sign the warranty deed and was not aware of it. Spivack was a notary public, attorney
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and friend of Murad and Melissa, and represented them in numerous matters. Spivack had prepared
the May 2008 warranty deed. Contrary to his certification when he notarized the warranty deed,
Spivack admitted that Kaput did not appear before him and Spivack did not witness Kaput sign
the warranty deed. According to Spivack and his paralegal Norma Garbutt, Murad came to
Spivack’s office on May 13, 2008, and picked up the prepared warranty deed. Murad took the deed
to someone sitting in a car parked in front of Spivack’s office. Murad then returned to Spivack’s
office and gave Garbutt the signed warranty deed and a copy of Kaput’s driver’s license, which
Garbutt copied and returned to Murad. Spivack then notarized the warranty deed. Spivack did not
know Kaput and did not compare the signatures on the driver’s license and the warranty deed.
¶ 27 Contradicting Spivack and Garbutt, Melissa asserted that she went to Spivack’s office with
her children on May 13, 2008, and Kaput had signed the warranty deed in April 2008, before
Spivack notarized it. Spivack, however, testified that he would never notarize a post-dated deed.
The trial court found that Melissa’s testimony was not credible, noting that her counsel claimed
during earlier proceedings that Spivack had signed the warranty deed as Kaput’s agent.
Furthermore, Kaput had filed a claim with Spivack’s notary bond insurer and received the
maximum bond liability payout for his claim. In addition, the May 2008 warranty deed was not
recorded until August 2009, more than one year after Kaput purportedly signed it, and Kaput paid
the taxes on the Property for most years.
¶ 28 Melissa failed to offer competent evidence to support her claim that Kaput signed a
document whereby Elite granted Murad a mortgage on the Property on January 24, 2007, as
security for a $950,000 loan from Murad. The court found no support for the authenticity of this
document because (1) Murad did not testify and Melissa could not lay a foundation for the
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purported loan or mortgage, (2) Kaput’s signature was another forgery notarized by Melissa,
(3) Elite could not have granted Murad a mortgage on the Property in January 2007 because Elite
did not own the Property until December 2007, and (4) Melissa’s testimony that Murad employed
a “shell mortgage” to protect his interest in the property while he and Kaput sought financing to
develop it under a corporation called EFI, which they would form later, was hearsay, had no
foundation and was “utterly nonsensical.” Melissa also failed to offer competent evidence to
support her claim that Murad had an ownership interest in Elite.
¶ 29 The court barred a substantial portion of the basis of the opinion of Kaput and Elite’s
expert, Curt Baggett, because it was not disclosed to Melissa on a timely basis. However, the court
found persuasive Baggett’s opinion on the habits of signers and that Kaput did not sign the
mortgage. Melissa’s expert, Rosemary Urbanski, based her testimony on photocopies of the
warranty deed and mortgage, not originals. Regarding the mortgage, the best that Urbanski could
opine was that there were “indications” that Kaput signed it. She admitted, however, that it was
“highly irregular” for Kaput to sign the mortgage using “Tom,” rather than “Thomas.” Regarding
the warranty deed, she opined that it was “highly probable” that Kaput signed it, but she could not
provide a definite conclusion of identity without the original documents. The court found that she
did not adequately address the differences between the challenged signature on the deed and
Kaput’s known signatures by, for example, measuring the differences in the angle of the slants and
the size of the letters. The court found that Urbanski’s opinions were not persuasive.
¶ 30 The court ruled that Kaput was entitled to a judicial deed placing the property in his name
because he was the only shareholder of Elite, which was dissolved in 2011. The court found that
Melissa and Murad’s recent formation of EFI and Elite was “merely the sequel to their fraudulent
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deed and mortgage relating to [the Property], intended to unnecessarily prolong this litigation.”
The court entered judgment in favor of Kaput and against Melissa on his claims to quiet title, for
a declaratory judgment, trespass to chattel, and slander of title. The court dismissed Kaput’s claim
for a business accounting. The court declared Kaput the rightful owner of the Property and entitled
to a judicial deed placing the Property in his name free and clear of any liens. The court declared
that the May 2008 warranty deed, the January 2007 mortgage on the Property in favor of Murad,
and the assignment of the note and mortgage recorded in June 2018 and signed by Murad were
fraudulent and therefore void. The court awarded Kaput $15,000 in compensatory damages against
Melissa for trespass to chattel, representing the amount she had collected by renting the Property
to a parking vendor. For slander of title, the court awarded Kaput $175,000 in punitive damages,
inclusive of attorney fees, against Melissa, based on the circumstances of this case and 50% of the
2008 fair market value of the property. The court previously awarded Kaput $1667 against Melissa
for discovery sanctions in March 2019. The court also ordered the clerk to send a copy of this
judgment to the Illinois Attorney Registration and Disciplinary Commission based on the court’s
determination that Spivack’s notarization was false.
¶ 31 On May 7, 2019, Melissa filed an emergency motion to vacate the May 3, 2019 judgment,
and the trial court denied her motion on May 8, 2019. On May 9, 2019, the court issued the judicial
deed to the Property.
¶ 32 On June 3, 2019, Melissa appealed the trial court’s (1) May 3, 2019 final judgment in favor
of Kaput, (2) May 8, 2019 order denying her posttrial motion, and (3) execution and delivery of
the May 9, 2019 judicial deed to the Property “and all other orders ancillary thereto.”
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¶ 33 II. ANALYSIS
¶ 34 On appeal, Melissa argues that the trial court erroneously (1) allowed the filing of an
amended third-party complaint against her on the eve of trial, (2) denied her motion for judgment
on the pleadings, (3) denied her motion to bar Baggett’s expert witness testimony, (4) refused to
admit into evidence the letter of direction from Murad to the title company, and (5) awarded
¶ 35 A. Amended Complaint
¶ 36 Melissa argues the trial court abused its discretion by granting Kaput and Elite leave to file
an amended third-party complaint on the eve of trial because the amended pleading was a
wholesale reconstitution of the original pleading, adding new claims, theories and issues. She
contends she suffered prejudice and did not have time to prepare to address the new claims for
trespass to chattel and slander of title. She adds that the amendments were not timely and Kaput
and Elite had previous opportunities to amend its pleading.
¶ 37 A trial court has broad discretion to grant or deny a motion to amend pleadings prior to the
entry of a final judgment, and a reviewing court will not reverse the trial court’s ruling on a motion
to amend unless the trial court has abused its discretion, which occurs when a ruling is arbitrary,
fanciful or unreasonable, or when no reasonable person would take the same view. Abramson v.
Marderosian, 2018 IL App (1st) 180081, ¶ 30; Palacios v. Mlot, 2013 IL App (1st) 121416, ¶ 18.
It is an abuse of discretion for the trial court to deny amendment of the pleadings to conform to
the evidence adduced in the case. Village of Wadsworth v. Kerton, 311 Ill. App. 3d 829, 842-43
(2000); Castro v. Belluci, 338 Ill. App. 3d 386, 391 (2003). Court’s review four factors in
determining whether the trial court abused its discretion: “(1) whether the proposed amendment
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would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by
virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether
previous opportunities to amend the pleading could be identified.” Loyola Academy v. S & S Roof
Maintenance, Inc., 146 Ill. 2d 263, 273 (1992).
¶ 38 Kaput and Elite filed their third-party complaint against Melissa in July 2013, and sought
to amend that pleading in February, March and April of 2019. After extensive briefing and oral
argument, the trial court, on April 15, 2019, granted Kaput and Elite leave to file the amended
pleading that had been proposed since March 12, 2019. The bench trial began on April 16, 2019.
¶ 39 The parties agree that the amended third-party complaint cured the defect in the prior
pleading that attached an exhibit of a trustee deed of a different parcel of real estate than the
Property at issue here. The amendment also cured a scrivener’s error in the original pleading that
listed the wrong trial court case number.
¶ 40 Regarding the factor of prejudice or surprise, Melissa contends the amended pleading
unfairly raised for the first time (1) the payment of property taxes, (2) prior judgments entered
against Murad, (3) whether he and Melissa were married when the 2008 warranty deed was signed,
(4) the mortgage recorded concurrently with the 2007 trustee’s deed, (5) Spivack’s notary surety
finding him guilty of misconduct, and (6) new claims for trespass and slander of title that sought
compensatory damages.
¶ 41 According to the record, the amended third-party complaint alleged that Melissa never paid
taxes on the Property, she fraudulently claimed to have paid those taxes in 2011, and her
documentation to support that false claim of payment was a fraud. The amendments also alleged
that in 2019 Murad paid a portion of the tax to bolster his fraudulent claim of ownership of the
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Property. Our review of the record establishes that the issue of property taxes was not new when
the amended third-party complaint was filed and was expected at trial. In a March 31, 2015
pleading, Melissa admitted that she relied on Spivack to pay the property taxes on the Property.
Furthermore, Melissa’s nonpayment of property taxes and false claims of payment were briefed
extensively in April 2018 in connection with her motion for summary judgment. She also described
herself, prior to the filing of the amended complaint, as a trial witness on the topic of property
taxes.
¶ 42 Miden’s initial complaint in this case in 2009 arose out of Miden’s unpaid judgment against
Murad, and his failure to pay judgments entered against him in Illinois courts was raised in multiple
pleadings before the challenged amendment. Furthermore, Miden’s amended complaint in 2009
alleged that Melissa and Murad had a relationship and subsequently got married. The evidence
that the 2007 mortgage and trustee’s deed were filed concurrently was not new and those
documents were exhibits to Miden’s 2009 amended complaint. In addition, allegations that
Spivack participated in the forgery of the 2008 warranty deed were part of Kaput and Elite’s 2010
proposed crossclaim against Murad and Melissa. Also, Spivack admitted in his 2012 deposition
that he notarized Kaput’s purported signature on the 2008 warranty deed without Kaput being
present.
¶ 43 The trespass to chattel and slander of title counts added in Kaput and Elite’s amended third-
party complaint arose out of the same occurrence and transactions that formed the basis for their
prior 2013 pleading. Furthermore, these counts were not a surprise raised on the eve of the April
16, 2019 trial but, rather, were identical to the counts in their proposed amended complaint that
was filed with the motion to amend on March 22, 2019. In their motion to amend, they explained
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they recently learned that Melissa was renting the Property to a valet parking service, which was
the basis for the trespass to chattel count. The basis of the slander of title count was the 2008
warranty deed, which has been an exhibit in this case since 2009 when Miden filed its amended
complaint, which named Melissa as a defendant. The scheme regarding the false mortgage between
Murad and Kaput was described in Elite’s June 20, 2018 combined motion for turnover of property
by judicial deed, an order to quite title, and Rule 137 sanctions. The trespass and slander counts
were properly added to the amended complaint and contained no surprise or prejudice to Melissa
because the underlying facts and the counts themselves had been previously disclosed to Melissa.
¶ 44 The extensive record in this case establishes that a flurry of motions involving discovery
disputes, jurisdiction and other myriad issues were filed, briefed, argued and adjudicated in the
months and weeks leading up to the trial. Under the circumstances of this case, we do not find that
the factors concerning timeliness or prior amendment attempts weigh against the filing of the
amended third-party complaint. Consequently, we conclude that the trial court did not abuse its
discretion by allowing the amended third-party complaint to be filed.
¶ 45 B. Motion for Judgment on the Pleadings
¶ 46 Melissa argues that the trial court erred by denying her motion for a judgment on the
pleadings because Elite was involuntarily dissolved by the Illinois Secretary of State on August
12, 2001, for failure to pay franchise taxes, and section 15.85(c) of the Illinois Business
Corporation Act (Act) (805 ILCS 5/15.85(c) (West 2018)) provides that “[n]o corporation required
to pay a franchise tax, license fee, penalty, or interest under this Act shall maintain any civil action
until all such franchise taxes, license fees, penalties, and interest have been paid in full.” Melissa
argues that Kaput did an end run around section 15.85(c) of the Act by seeking in the amended
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third-party complaint rejoinder of Kaput, individually, on the grounds that as the surviving sole
shareholder, he was entitled to the assets of the dissolved corporation. Also, Melissa contends that
no evidence was offered to show that the dissolved corporation’s claims were assigned to Kaput
as part of any orderly winding up of the corporation’s affairs.
¶ 47 The standard of review for judgment on the pleadings is de novo. West American Insurance
Company v. Midwest Open MRI, Inc., 2013 IL App (1st), 121034, ¶ 19. De novo consideration
means the appellate court performs the same analysis that a trial judge would perform. Thomas v.
Weatherguard Construction Company, 2015 IL App (1st) 142785, ¶ 63.
¶ 48 Melissa never asserted an affirmative defense of lack of standing pursuant to section 15.85
of the Act until her appellate brief. According to the record, her motion for judgment on the
pleadings rested entirely on the argument that the scrivener errors in the 2013 third-party
complaint, which consisted of the wrong case number and the wrong warranty deed attached as an
exhibit, mandated dismissal of Kaput and Elite’s suit against her. The trial court denied her motion,
finding that there was no genuine issue of material fact regarding the correct case number and
correct address of the Property. We conclude that Melissa has forfeited the issue of standing
asserted in her appellate brief. Grimes v. Sage Telecom Communications, LLC, 2018 IL App (1st)
171455, ¶ 23 (where “aspects of the arguments defendants raised on appeal were distinct from the
ones they raised in the trial court, their appellate contentions were forfeited”).
¶ 49 C. Expert Testimony
¶ 50 Melissa argues the trial court abused its discretion by denying her motion in limine to bar
the testimony of Elite’s expert witness, Curt Baggett, for failure to make timely disclosures under
Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2018). Although the trial court excluded from the
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trial exhibit D, which was a series of the charts and scans of the various measurements Baggett
took of the signatures provided by Kaput and Elite, Melissa complains that the court allowed
Baggett to testify to the specific information contained in the excluded exhibit regarding the
methods or techniques he used to compare the signatures in the documents, the significant
difference he found based upon his review, and how he reached his conclusions that Kaput’s
purported signatures on the 2008 warranty deed were forged.
¶ 51 The bystander’s report in the record shows that Melissa objected to Elite’s exhibit D, which
resulted in that exhibit being excluded from trial. No further objections to Baggett’s testimony by
Melissa were recorded in the bystander’s report. “A motion in limine is an interlocutory order and
remains subject to reconsideration by the court throughout the trial.” Reid v. Sledge, 224 Ill. App.
3d 817, 822 (1992). “It is within the discretion of the trial judge to grant or deny the motion.”
Konieczny v. Kamin Builders, Inc., 304 Ill. App. 3d 131, 136 (1999). “Even though denied, the
movant must nevertheless object to the evidence in question and failure to do so will result in the
issue being [forfeited].” Reid, 224 Ill. App. 3d at 822. We conclude that Melissa forfeited appeal
of this issue by failing to object to Baggett’s testimony during the trial.
¶ 52 D. Admission of Evidence
¶ 53 Melissa argues the trial court erred by sustaining Elite’s objection to the admission into
evidence of Murad’s December 20, 2007 letter of direction to the title company because a vice
president and legal counsel of the title company authenticated the letter, which the title company
had used to prepare the 2007 trustee’s deed for the Property. This letter by Murad authorized and
directed the title company, as the trustee holding title under a land trust, to convey the Property
and an additional lot to the grantee. Originally, the name of the grantee was typed “Elite Financial
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Investments, Inc.,” but then the word “Investments” was crossed out. The grantee’s address was
typed as “1914-16 West Division Street, Chicago, Illinois,” which was Elite’s address.
¶ 54 Melissa contends this letter was essential to show Murad’s intent to convey the Property to
EFI and not Elite and that the listing of EFI on the 2007 trustee’s deed was not a scrivener’s error.
Melissa argues that the letter was an authenticated record maintained by the title company in its
official file and fell within the business record exception to the hearsay rule. Melissa argues that
this letter would have supported her testimony that the title to the Property was intentionally
deeded to a fictious entity to shelter the Property from adverse claims while Kaput tried to raise
the money to buy into the deal where he and Murad would jointly develop the Property.
¶ 55 We review the trial court’s ruling to exclude evidence for an abuse of discretion.
Hoffman v. Northeast Illinois Regional Commuter R.R. Corp., 2017 IL App (1st) 170537, ¶ 49.
The letter was purportedly signed by Murad but he did not testify at the trial, and the attorney of
the title company testified that he did not know what the handwritten marks on the letter meant.
Without Murad, no one could authenticate or explain the handwritten markings on the letter.
See Laughlin v. Chenowith, 92 Ill App. 3d 430, 435 (1980) (court properly excluded a document
signed by a nonparty when its contents could not be authenticated). We find no abuse of discretion
by the trial court on this issue.
¶ 56 E. Punitive Damages
¶ 57 Melissa argues the trial court erred by awarding Kaput $175,000 in punitive damages
because punitive damages were not sought in Kaput and Elite’s 2010 cross-claim or 2013 third-
party complaint, neither of which sought any monetary damages. Melissa argues that Elite’s first
request for punitive damages, which according to the record was contained in its proposed
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amended third-party complaint in February 2019, was merely part of the prayer for relief in the
slander of title count, in which no other monetary damages were alleged or requested. She contends
the request did not specifically plead a claim for punitive damages because it gave no particulars
regarding either the amount of punitive damages that would be requested or the basis for that relief.
Melissa also contends no evidence was presented at the trial regarding the amount of punitive
damages to be awarded.
¶ 58 Melissa has forfeited this issue by failing to raise it in her posttrial motion. See Denton v.
Universal Am-Can, Ltd., 2019 IL App (1st) 181525, ¶ 46. A posttrial motion must set forth the
specific grounds for any alleged error and where the parties fail to raise an issue in their motion
for posttrial relief, that issue is forfeited on appeal. Id.
¶ 59 Forfeiture aside, generally, punitive damages are awarded when the underlying tort is
accompanied by aggravating circumstances such as willful, wanton, malicious, or oppressive
conduct. In re Estate of Hoellen, 367 Ill. App. 3d 240, 253 (2006). Punitive damages may only be
awarded for conduct that is outrageous either because the defendant’s motive was evil or the acts
exhibited a reckless indifference toward the rights of others. Loitz v. Remington Arms Co., 138 Ill.
2d 404, 415-16 (1990). The purpose of awarding punitive damages is to punish the wrongdoer and,
in doing so, to deter that party and others from committing similar wrongful acts. Totz v.
Continental Du page Acura, 236 Ill. App. 3d 891, 909 (1992). Punitive damages are not favored
in the law; thus, courts should be careful never to award such damages improperly or
unwisely. Kleidon v. Rizza Chevrolet, Inc., 173 Ill. App. 3d 116, 121 (1988). In reviewing a
decision on punitive damages, an appellate court must not disturb the trial court’s decision to
award punitive damages unless the trial court abused its discretion. Gambino v. Boulevard
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Mortgage Corp., 398 Ill. App. 3d 21, 69 (2009); Kleczek v. Jorgensen, 328 Ill. App. 3d 1012,
1024-25 (2002).
¶ 60 Illinois courts in common law cases have allowed punitive damages supported only by
nominal damages when the conduct of the defendant is intentional. See, e.g., In re Estate of
Hoellen, 367 Ill. App. 3d 240, 252 (2006) (punitive damages can be awarded for intentional breach
of fiduciary duty without an award of actual damages); First National Bank of Des Plaines v. Amco
Engineering Co., 32 Ill. App. 3d 451, 455 (1975) (remanding for award of nominal damages for
trespass to property and allowing plaintiffs to amend complaint to seek punitive
damages), superseded by statute on other grounds as recognized by Wujcik v. Gallagher & Henry
Contractors, 232 Ill. App. 3d 323, 328 (1992). Where the defendant is aware from the nature of
the complaint that plaintiffs intended to prove willful misconduct, an amendment of the complaint
to include a prayer for punitive damages should be allowed since defendant would not be
prejudiced thereby. First National Bank of Des Plaines, 32 Ill. App. 3d at 455.
¶ 61 As discussed in detail above, we concluded that the trial court did not abuse its discretion
by allowing Elite’s amendment to add the slander of title count. We also conclude that the request
for punitive damages in the prayer for relief for that count was not a surprise to Melissa. The claims
against her alleged that she engaged in intentional misconduct and participated in the forgery of
the May 2008 warranty deed for the Property, thereby putting her on notice that she might be liable
for punitive damages. See Public Taxi Service, Inc. v. Barrett, 44 Ill. App. 3d 452, 459 (1976).
¶ 62 The amount of punitive damages rests within the discretion of the trial court (Franz v.
Calaco Development Corp, 352 Ill. App. 3d 1129, 1143 (2004)), and “it is well-established that
[punitive] damages may be awarded absent any evidence of financial condition” (Leyshon v. Diehl
Controls of North America, Inc., 407 Ill. App. 3d 1, 16 (2010)). The trial court found that Melissa
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participated in stealing the Property by means of forgery and deprived Kaput, the rightful owner
of the Property, of the benefit of it for 12 years while Melissa rented it out to a parking valet for
income. Furthermore, Kaput testified that he had spent over $150,000 litigating the recovery of
the Property. The trial court explained that the punitive damages award represented half the value
of the property, and we find no abuse of discretion in that decision. See Gambino, 398 Ill. App. 3d
at 69 (“the amount of an award should be a reflection of the factfinder’s determination as to the
degree of maliciousness evidenced by a defendant’s actions”).
¶ 63 If Melissa had raised in her posttrial motion her claim that the May 3, 2019 judgment did
not include nominal damages on the slander of title claim to support the punitive damages award,
the trial court could have easily addressed the matter with a simple edit. Illinois Supreme Court
Rule 366(a)(5) (eff. Feb. 1, 1994), states that “in all appeals the reviewing court may, in its
discretion, and on such terms as it deems just, enter any judgment and make any order that ought
to have been given or made.” Based on our authority under Rule 366(a)(5), we modify the trial
court’s May 3, 2019 judgment to reflect that nominal damages are awarded in favor of Thomas
Kaput and against Melissa Sweiss on count V for slander of title in the amount of $1 and punitive
damages, inclusive of attorney’s fees, are awarded in favor of Thomas Kaput and against Melissa
Sweiss on count V for slander of title in the amount of $174,999. In all other respects, we affirm
the award rendered by the trial court.
¶ 64 F. Other Relief
¶ 65 Melissa also filed with this court a motion for sanctions under Supreme Court Rule 375(b)
(eff. Feb. 1, 1994) and a motion to strike portions of Kaput and Elite’s objections to her motion
for sanctions, which this court ordered would be taken with the case. Melissa argues that Kaput
and Elite’s June 2019 motion to dismiss her appeal was frivolous and Kaput’s affidavit in support
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of that motion falsely claimed that he sold the Property to a bona fide purchaser and thereby
rendered Melissa’s appeal moot. She requests that an order be entered directing Kaput and his
counsel to pay her $2130 in attorney fees. She also argues that Kaput and Elite devoted the vast
majority of their objection to her motion for sanctions to yet another lengthy recitation of the
alleged sordid history of the case and asks this court to strike certain portions that she contends are
irrelevant. In July 2019, this court denied without prejudice Kaput and Elite’s motion to dismiss
this appeal; however, that denial does not mean that their motion was frivolous or that Kaput’s
affidavit in support of his motion was false. Based on our review of this case on the merits, we
deny Melissa’s motion for sanctions and motion to strike.
¶ 66 Finally, Kaput and Elite ask this court, pursuant to Supreme Court Rule 366, to enter an
order barring Melissa or any of her legal representatives or agents from filing any other litigation,
claims or actions against Kaput and Elite with respect to the Property, and from filing or recording
any further documents or encumbrances against the Property. Kaput and Elite also ask this court
to direct Melissa and her legal counsel to withdraw or record a release of any and all documents
or other encumbrances they have recorded against the Property and to refrain from filing or
recording any further document or encumbrance against it.
¶ 67 This request seems to ask this court to grant relief based on speculation about Melissa’s
possible future actions. Kaput and Elite cite no relevant authority showing a basis for us to grant
this relief and we decline to do so.
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¶ 68 III. CONCLUSION
¶ 69 For the foregoing reasons, we affirm the judgment of the circuit court except for the
modification concerning damages to award Kaput $1 in nominal damages and $174,999 in punitive
damages against Melissa on count V for slander of title.
¶ 70 Affirmed as modified.
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