Appeal from the Circuit Court of Cook County; the Hon. James
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
In November 1978, Sheri Roth (plaintiff) and Donald Lewis filed a complaint for injunctive and declaratory relief against Carlyle Real Estate Limited Partnership VII (Carlyle) in which they sought to have the legality and validity of their investment in Carlyle determined by the court. They asked that Carlyle be ordered to return to them their original investment and any dividends due thereon.
In March 1979, Timothy J. McGreevy filed a petition to intervene. He alleged that the funds used by plaintiff and Donald Lewis to purchase their limited partnership interest in Carlyle were funds belonging to Worm World, Inc. (WW), a Colorado corporation. McGreevy had been appointed receiver for WW by the United States District Court for the District of South Dakota in 1978. Uncontradicted documents filed by McGreevy indicated that in July 1978, a class action lawsuit was filed in that Federal court on behalf of all investors in WW, alleging that Tom Roth (husband of plaintiff Sheri Roth) and Donald Lewis were officers of WW; that they and WW had engaged in the selling of "securities" in WW, in violation of both Federal and South Dakota law; and that they had made false and fraudulent misrepresentations to investors. The Federal judge in that case had appointed McGreevy receiver, authorizing him to take all necessary steps to collect obligations owing to WW. In August 1980, judgment was entered in favor of the plaintiff class against Lewis, Tom Roth and WW in the amount of $737,571.24, the aggregate sum paid by the known class member investors in WW.
McGreevy also filed with the trial court in the instant action undisputed documents showing that in April 1979, Tom Roth and Donald Lewis had been indicted by a United States grand jury in the State of Colorado and charged with six counts of fraud. The indictments charged that from June 1976 to December 1978 Roth and Lewis:
"devised and intended to devise a scheme and artifice to defraud and for obtaining money by means of false and fraudulent pretenses, representations, and promises from that class of persons who could be induced to sign a Purchase Agreement and pay sums of money specified therein, agreeing to be an earthwork `Grower' for Worm World, Inc. * * * well knowing at the time that said pretenses, representations and promises hereinafter specifically described would be and were false and fraudulent when made * * *."
On October 5, 1979, Tom Roth pleaded guilty to one count of fraud, and was sentenced to five years' imprisonment. (The disposition of Lewis' case is not noted in this record.)
McGreevy contended that plaintiff's and Donald Lewis' interests in Carlyle were purchased with money belonging to WW. (Roth purchased one 50-share interest for $50,000 in November 1977, and a second 50-share interest for the same sum in January 1978. Lewis purchased his 50-share interest for $50,000 in November 1977.) McGreevy requested the trial court to impose a constructive trust in favor of the receiver on those partnership interests and all monetary benefits arising out of those interests.
Over plaintiff's and Lewis' objections, the trial court granted McGreevy's petition to intervene.
In responding to McGreevy's request to admit facts, the following was admitted by plaintiff:
"On November 18, 1977, Donald L. Lewis caused funds to be withdrawn from the account of Worm World, Inc. in the total of $50,000.00, said fund payable to the order of Don L. Lewis or otherwise to be used for his benefit. On November 18, 1977 and on January 25, 1978 Tom Roth caused funds to be withdrawn from the account of Worm World, Inc. in separate withdrawals of $50,000.00 on the aforementioned dates. These funds were transferred for the use and benefit of Sheri A. Roth. Sheri A. Roth used those funds to purchase, on two separate occasions, at the aforesaid dates, 50 interests in Carlyle Real Estate Limited for her own use and benefit."
Plaintiff further admitted that her shares in Carlyle were purchased "solely" with the funds withdrawn from WW by her husband.
In May 1982, the trial court granted McGreevy's motion for summary judgment as to Donald Lewis. (Lewis did not appeal from that judgment, and his effort to join in Roth's subsequent appeal in the instant case was denied by this court.)
In February 1983, McGreevy filed a motion for summary judgment against plaintiff based primarily on admissions by plaintiff and the aforestated Colorado and South Dakota court documents. The trial court granted the motion. Plaintiff then filed a motion to vacate the summary judgment. The trial court denied her motion and, finding that it contained untrue statements made without reasonable cause, awarded McGreevy $1,000 in attorney fees.
On appeal, plaintiff contends that summary judgment should not have been entered. She appears to contend that there exist material questions of fact with regard to whether her husband was "entitled" to the money he withdrew from the WW account and then transferred to her and with regard to whether she was the recipient of an untainted "gift" from her husband. Plaintiff also ...