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Mary S. Gurga v. Ellen D. Roth

December 28, 2011

MARY S. GURGA,
PLAINTIFF-APPELLANT,
v.
ELLEN D. ROTH, DEFENDANT-APPELLEE



Appeal from the Circuit Court of Du Page County. No. 09-CH-5828 Honorable Kenneth L. Popejoy, (All Unknown Owners, Defendants). ) Judge, Presiding.

The opinion of the court was delivered by: Justice Schostok

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hutchinson and Burke concurred in the judgment and opinion.

OPINION

¶ 1 On November 5, 2009, Ellen Roth filed an action in forcible entry and detainer to evict Mary Gurga from the home in which she resided. In response, Mary filed a claim to quiet title to the home. The actions were consolidated and Ellen filed a motion to dismiss Mary's claim. On April 15, 2010, following a hearing, the trial court granted Ellen's motion to dismiss with prejudice, unconsolidated the cases, and allowed the forcible entry and detainer action to proceed. On appeal, Mary argues that the trial court erred in dismissing her claim to quiet title. We reverse and remand for additional proceedings.

¶ 2 I. BACKGROUND

¶ 3 In 1981, Mary's parents, Eugene and Maria Gurga, purchased their family home at 204 North Adams Street in Westmont. Eugene and Maria had four children: Mary, Barbara, Theresa, and Zbigniew. Eugene died on August 13, 1997, and Maria died on February 19, 2009. Barbara died on November 27, 2007, unmarried and without descendants. In early January 2008, Ellen, Barbara's life partner, filed Barbara's will and a petition for probate in the circuit court of Cook County. Barbara's will named Ellen as the executor and sole beneficiary. The estate was opened and Ellen was named the independent administrator.

¶ 4 On March 5, 2008, notice that the estate was open and that Ellen was the independent administrator was served on Barbara's heirs, including Mary. The proper notices were also published. On the basis of a quitclaim deed dated September 30, 1996, and recorded October 7, 1996, transferring the Westmont property from Eugene and Maria to Barbara, Ellen recorded a release of interest on September 23, 2008, with the Du Page County recorder's office, transferring Barbara's interest in the home to herself as sole beneficiary. On February 13, 2009, a copy of the inventory and final accounting was served on Mary. The inventory listed the Westmont home as one of Barbara's assets. On March 13, 2009, the final report of the probate estate was served on Mary. The notice stated that the heirs "shall have 42 days from the date of filing to object." No objections were filed and the estate was closed on April 28, 2009.

¶ 5 On November 5, 2009, Ellen filed a complaint in forcible entry and detainer to evict Mary from the Westmont home. On December 1, 2009, Mary filed a complaint to quiet title to the Westmont home. In that complaint, Mary alleged that her parents' desire was to leave the home to Barbara and Mary. Mary moved into the home in 1999 to provide care to her mother. She lived there continuously until her mother's death in 2009. On her deathbed, Barbara told Mary that the Westmont home would be hers. After Barbara died, Ellen commented that she now owned the Westmont home. In response, on December 24, 2007, Maria executed and recorded a deed placing the house in a land trust with Mary as the sole beneficiary. After Maria died, the home was taken out of trust and a trustee's deed was issued to Mary. That deed was recorded on August 10, 2009. Mary argued that the 1996 quitclaim deed was a mutual mistake of the parties to the deed. The intent was to have the property tax bills sent to Barbara's residence, not to convey the property to Barbara. In her three-count complaint, Mary sought a resulting trust for the property (count I), a declaration to quiet title (count II), and/or ownership by adverse possession by payment of taxes with color to title (735 ILCS 5/13-109 (West 2008)) (count III).

¶ 6 On December 2, 2009, the eviction proceeding was consolidated with the quiet title proceeding. On February 3, 2010, Ellen filed a motion to dismiss Mary's complaint pursuant to sections 2-619(a)(4) and (a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(4), (a)(9) (West 2008)). Ellen argued that, because Mary failed to raise or litigate the issue of title to the Westmont home as part of the probate proceeding of Barbara's estate, her complaint was now barred by the doctrine of res judicata. In response to that motion, Mary argued that she could not have raised the issue of title in the Cook County probate proceeding, because the Westmont home was located in Du Page County. Mary argued that the venue statutes vested jurisdiction over such issues exclusively in the courts serving the county in which the land was located. Alternatively, Mary argued that the issue was not res judicata because the probate court had not made any determinations as to the competing claims to title. Rather, it had merely transferred any ownership interest that Barbara may have had to Ellen.

¶ 7 On April 15, 2010, following a hearing, the trial court granted Ellen's motion to dismiss Mary's complaint with prejudice. The trial court found:

"*** A Cook County probate court did make a determination of what proper title was and transferred that title.

*** [Venue] needed to be raised at that time. I mean, what we do in probate court is deal with the superiority of claims and liens and what parties have interest to what. *** She had the ability to make a determination of the-of superiority of the claim or the ownership of the home. She chose not to do that at all.

*** [Probate court] was clearly the place where she had an opportunity to contest the ownership of that home, the estate's interest in the home, the estate maybe had no interest at all in the home, according to what allegations you may have made one way or the other, but nobody chose to contest it.

*** I even sat down yesterday *** with our current probate judge and we walked through this. There's just absolutely no question. It's clearly res judicata. *** [Y]ou have no case law to support the *** conclusory allegations that you make about her failure to participate in Cook County probate proceedings deprives her only of the opportunity to contest how the Court dispensed whatever interest in the house was actually in the estate. ...


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