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Toushin v. Ruggiero

Court of Appeals of Illinois, First District, First Division

August 3, 2015

STEVEN TOUSHIN, Plaintiff-Appellee,
v.
GINA RUGGIERO, Defendant-Appellant, (First Merit Bank, a National Banking Institution, Trustee Under Trust Numbers 78-03-2431 and 88-03-5438, Defendant)

Page 131

Appeal from the Circuit Court of Cook County. No. 13 CH 10090. Honorable Mary L. Mikva, Judge Presiding.

Torshen, Slobig, Genden, Dragutinovich and Axel, Ltd., Chicago, IL, (Robert J. Slobig, of counsel), for APPELLANT.

Goldwater & Associates, Chicago, IL, (Ben Goldwater, of counsel), for APPELLEE.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Cunningham concurred in the judgment and opinion.

OPINION

Page 132

 HARRIS, JUSTICE

[¶1] Plaintiff, Steven Toushin, brought a declaratory judgment action against defendants,

Page 133

First Merit Bank (First Merit)[1] and Gina Ruggiero (defendant), in which he asked the circuit court to declare that he had a 50% beneficial interest in two Illinois land trusts in which First Merit served as trustee and defendant possessed the remaining beneficial interest. Plaintiff based his claim on two assignments of beneficial interest, both dated February 16, 1994, in which he claims defendant assigned 50% of the beneficial interest in each trust to him. First Merit refused to lodge the assignments when plaintiff first presented them in April of 2013, citing the age of the assignments and noting that a dispute existed between plaintiff and defendant regarding the validity of the assignments.

[¶2] After a bench trial, the circuit court found in plaintiff's favor and entered a declaratory judgment finding that plaintiff may lodge, and First Merit shall accept, the assignments of beneficial interest. Defendant presented numerous affirmative defenses to plaintiff's action, including that the cause of action was barred by the five-year statute of limitation period provided for in section 13-205 of the Illinois Code of Civil Procedure (Code). 735 ILCS 5/13-205 (West 2012). In rejecting defendant's statute of limitation affirmative defense, the circuit court found that no events adverse to plaintiff's interests occurred until he attempted to lodge the assignments of beneficial interest in April of 2013, well within the five-year limitation period of section 13-205.

[¶3] Defendant raises the following issues for our review: (1) whether the circuit court erred in entering a declaratory judgment against her; (2) whether plaintiff's claims are time-barred pursuant to section 13-205 of the Code ( Id. ); (3) whether plaintiff's claims are barred by the doctrine of res judicata ; (4) whether the circuit court should have dismissed plaintiff's claim pursuant to the doctrine of collateral estoppel; (5) whether the circuit court failed to apply the doctrine of judicial estoppel; (6) whether plaintiff's evidence of a prior adjudication defeats his claim; (7) whether the circuit court erred in denying defendant's motion to dismiss pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2012)); and (8) whether the circuit court erred when it denied defendant's motion for summary judgment. Due to our conclusion in this matter, however, we only need to address defendant's contention that plaintiff's claim is time-barred pursuant to the statute of limitations period provided for in section 13-205 of the Code. 735 ILCS 5/13-205 (West 2012). Accordingly, we hold plaintiff's cause of action in this case is time-barred because the evidence at trial showed that plaintiff knew, or at the very least should have known, of the existence of his injuries outside of the five-year limitation period provided for in section 13-205 of the Code.

[¶4] JURISDICTION

[¶5] On October 14, 2014, the circuit court entered a declaratory judgment in plaintiff's favor. The court reserved ruling on defendant's counterclaims, and, regarding its entry of a declaratory judgment, found " no just reason for delaying either enforcement or appeal or both" pursuant to Illinois Supreme Court Rule 304(a). (eff. Feb. 26, 2010) (allowing this court to review judgments as to fewer than all of the claims or parties when such a finding is made by the circuit court). On October 15, 2014, defendant timely appealed. Accordingly,

Page 134

we have jurisdiction pursuant to Illinois Supreme Court Rule 304(a). Id.

[¶6] BACKGROUND

[¶7] On April 15, 2013, plaintiff filed a verified complaint against defendants. Relevant to this appeal, plaintiff asked for declaratory relief based on two assignments of beneficial interest he possessed that he alleged assigned him 50% of the beneficial interest in two Illinois land trusts that held title to property commonly known as 1349 and 1365 North Wells Street in Chicago, Illinois. First Merit, as trustee, held title to the properties in the trusts as follows: in trust number 78-03-2431, created March 16, 1978, it held title to 1349 North Wells Street; and in trust number 88-03-5438, created March 5, 1988, it held title to 1365 North Wells Street. Plaintiff alleged that defendant acquired 100% of the beneficial interest to the trusts in 1978 and 1988 " by virtue of the [p]laintiff providing her and her husband, Angelo Ruggiero, with ownership of said beneficial interests, in a fiduciary capacity since the [p]laintiff, for reasons well known to the individual [d]efendant, were not intended to be made permanent." Plaintiff alleged that Angelo Ruggiero, in turn, transferred his interest in the trusts to defendant, Angelo's wife. Plaintiff alleged that the transfer documents, as well as the trust documents creating the trusts, were lost or misplaced.

[¶8] In his complaint, plaintiff further alleged that " [f]rom their inception, [he] paid all the expenses in connection with the properties held in the said [t]rusts, including the debt service on the mortgage, real estate taxes, insurance and maintenance and/or improvements to the property." Plaintiff and defendant own the Festival Theater Corporation which operates the Bijou Theater. Plaintiff alleged defendant later assigned him 50% of the beneficial interest in the trusts as consideration for plaintiff's expenditures, maintenance, and expenses related to the properties. Plaintiff alleged that " [f]or reasons best known to the individual parties *** the [a]ssignments were not submitted to the [t]rustee for acceptance until April 1, 2013." On that date, plaintiff's attorney sent the assignments to First Merit for acceptance, which First Merit declined to honor on April 5, 2013. Plaintiff alleged that " [o]n information and belief *** [defendant] has found a prospective purchaser for the properties held in said [t]rusts; that she intends to convey the property to said purchaser without disclosing or recognizing the [his] interest in said properties." Accordingly, plaintiff asked that the circuit court enter a declaratory judgment pursuant to section 2-701 of the Code (735 ILCS 5/2-701 (West 2012)) declaring the February 16, 1994, assignments giving him a 50% beneficial interest in both trusts are valid, have full force and effect, and were made with adequate consideration. Plaintiff asked that the circuit court direct and order First Merit to recognize his interest, as well as for damages " as the Court may deem appropriate."

[¶9] In support of his complaint, plaintiff attached the two assignments, a letter from his attorney to First Merit, and a letter in response from First Merit. The letter from plaintiff's attorney indicates that plaintiff attempted to lodge the assignments with First Merit on April 1, 2013. First Merit, however, refused to accept the assignments, stating the assignments " bear a date from nearly 20 years ago and are the subject of a heated dispute between the original beneficiary and your client." First Merit did indicate, however, that it would accept the assignments " [u]pon provision of a court order resolving the legitimacy of the assignment or consent from the current beneficiary."

Page 135

[¶10] The single page assignments of beneficial interest are both dated February 16, 1994, and with the exception of the name of the individual trust involved, are nearly identical. Specifically, the first assignment provides as follow:

" For value received I hereby sell, assign, transfer and set over unto [plaintiff] Fifty (50%) per cent [of] my rights, powers, privileges and beneficial interest in and under that certain trust agreement dated the 5th day of March *** 1988, and known as the The Midwest Trust Services, Inc. Trust Number 88-03-5438, including all interest of the undersigned in the property held subject to said trust agreement.
The power of direction under this trust hereafter shall be exercised by [plaintiff], [defendant]."

[¶11] The second assignment is nearly identical to the first, except for that the trust listed is " Trust Number 78-03-2431" and is from March 16, 1978. Defendant signed the assignments, and plaintiff signed under a section titled " Acceptance." On both assignments, the section titled " Trustee's Receipt" is blank.

[¶12] On September 27, 2013, defendant filed a motion to strike and dismiss plaintiff's complaint pursuant to section 2-619.1 of the Code. 735 ILCS 5/2-619.1 (West 2012). Relevant here, defendant sought dismissal of plaintiff's declaratory judgment action pursuant to the five-year statute of limitations period provided for in section 13-205 of the Code. 735 ILCS 5/13-205 (West 2012). On January 16, 2014, ...


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