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Dore v. Quezada

Court of Appeals of Illinois, First District, First Division

May 8, 2017

JOHN N. DORE d/b/a John N. Dore and Associates, Plaintiff-Appellant,
CARLOS QUEZADA, JR., and TAPAS QUEZADA, INC., Defendants, (Baongoc Aggen and Broadview Cooperative Apartments, Inc., Third-Party Respondents-Appellees).

         Appeal from the Circuit Court of Cook County. No. 14 M1147913 Honorable Daniel J. Kubasiak, Judge Presiding.

          JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Simon and Mikva concurred in the judgment and opinion.



         ¶ 1 Plaintiff-appellant, John N. Dore d/b/a John N. Dore and Associates, obtained a judgment in Cook County circuit court against Carlos Quezada, Jr., (Quezada) and Tapas Quezada, Inc. (Tapas Quezada) (collectively, defendants) on May 11, 2015. Plaintiff initiated supplemental proceedings pursuant to section 2-1402 of the Code of Civil Procedure (735 ILCS 5/2-1402 (West 2014)) with the filing of third-party citations against Baongoc Aggen and Broadview Cooperative Apartments, Inc. (Broadview) (collectively, respondents). Plaintiff served a citation upon Quezada by substitute service on September 28, 2015 by leaving a copy with Aggen at 918 W. Roosevelt Rd., #2-W, Broadview, Illinois (the Broadview apartment). Pursuant to the citation proceeding against Broadview and Aggen, plaintiff identified Aggen's ownership of the Broadview apartment, arguing that it was also owned by Quezada and therefore subject to turnover. After conducting an evidentiary hearing, the trial court found the Broadview apartment was exclusively Aggen's property. Accordingly, the trial court denied the motions for judgments against respondents and terminated the proceedings. The trial court quashed Quezada's citation served via substitute service. This timely appeal followed.

         ¶ 2 Plaintiff raises several issues for our review on appeal: (1) the trial court committed reversible error when it held that the evidence established Quezada held Aggen's property in a resulting trust, (2) the trial court erred by relying on Quezada's affidavit, (3) the court should have required a pleading seeking a declaration of a resulting trust, (4) the trial court erred in failing to impose sanctions on Aggen, (5) the trial court erred in declaring Aggen could assert a homestead exemption, and (6) the trial court erred in quashing the citation to discover assets served upon Quezada via substitute service.

         ¶ 3 JURISDICTION

         ¶ 4 On July 6, 2016, the trial court entered an order dismissing the citation to discover assets served on respondents. On August 1, 2016, plaintiff filed its notice of appeal. Accordingly, this court has jurisdiction over this matter pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 301 and 304(b)(4). Ill. Const. 1970, art. VI, § 6; Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 304(b)(4) (eff. Mar. 8, 2016).

         ¶ 5 BACKGROUND

         ¶ 6 On November 3, 2014, plaintiff filed a breach of contract action against defendants for failure to remit payment associated with legal services. Defendants were served via alternative service, and an ex parte judgment in the amount of $8581.88 plus costs was entered against them.

         ¶ 7 On August 25, 2015, plaintiff served Aggen with a citation to discover assets in an attempt to satisfy the judgment. On August 27, 2015, plaintiff served Broadview with a citation to discover assets and notice to enforce judgment. On September 28, 2015, plaintiff attempted to serve Quezada through substitute service on Aggen at the Broadview apartment.

         ¶ 8 On September 16, 2015, Aggen appeared on the citation's return date. The proceeding was continued so Aggen could produce responsive documents. In discovery, plaintiff obtained a copy of shares of stock issued by Broadview naming Aggen and Quezada as joint tenants with rights of survivorship. The stock was issued on August 26, 2014. Discovery also showed that Broadview reissued the shares on September 19, 2015, removing Quezada and placing Aggen's parents' name on them.

         ¶ 9 On September 24, 2015, Broadview filed an answer to the citation, stating that it held none of Quezada's property on the date of service. On November 20, 2015, Aggen filed an answer in which she stated that she held none of Quezada's property on the date of service. On December 21, 2015, Aggen provided a response to the citation and claim of ownership of the Broadview apartment. She provided an amended response with additional material on January 11, 2016. In her amended response, Aggen argued she was the sole owner of the apartment shares because Quezada held the shares in a resulting trust for her benefit. She supported this based on the fact that Quezada contributed no funds to the apartment purchase and she was the sole signatory on all the transaction documentation. Aggen provided her affidavit along with various documents from the purchase of the apartment. She attached the shares first issued in August 2014 and then reissued in September 2015. She also attached the affidavits of Quezada, Sandra Cruz (a realtor), and her father, Nghi Truong.

         ¶ 10 Plaintiff filed a reply and objections to Aggen's amended response. In his reply, plaintiff argued that the service of the citation upon Aggen created a lien on the shares she held jointly with Quezada. He asserted that Quezada's removal from the shares with the assistance of Broadview constituted a violation of the prohibition contained in the citation. He further asserted that Aggen had to file a declaratory judgment action in order for the court to declare that there was a resulting trust. Plaintiff also took issue with Aggen's homestead exemption claim and the lack of documentation concerning the source of funds for the apartment purchase. On March 2, 2016, the trial court ordered an evidentiary hearing and issued a rule to show cause against Quezada based on his failure to appear.

         ¶ 11 During discovery, plaintiff also discovered that Aggen had negotiated a $1000 check payable to herself and Quezada after she had been served with the citation. As a result of this discovery, on April 8, 2016, plaintiff moved for the entry of judgment against Aggen and for sanctions. The court continued the motion to the evidentiary hearing date.

         ¶ 12 The evidentiary hearing was held on May 11, May 20, and June 2, 2016. At the hearing, Aggen testified regarding her relationship with Quezada and how she came to purchase the Broadview apartment. She testified as to the source of the funds and how Quezada came to be listed on the stock. She also testified as to the $1000 check that had been issued to her and Quezada. She testified that the money to purchase both apartments came from her parents in Vietnam. The money was transferred from Vietnam via an informal process that involved Vietnamese friends loaning her money here and her father paying the families back in Vietnam. Her father testified and explained that the funds came from the sale of his house in Vietnam. He also testified to the informal money transfers and explained there was no other way to transfer funds from Vietnam to the United States and that all of his records concerning the sale and his Vietnam bank accounts were still in Vietnam.

         ¶ 13 Shawn Bolger, an attorney for the seller of an apartment at 2212 S. 12th Avenue in Broadview, Illinois, was called to testify regarding the $1000 check. Bolger testified that in August 2015, he received a $1000 earnest money check bearing the name of Aggen and Quezada. When the transaction did not close, he reissued the check the same way it had been received, under the name of Aggen and Quezada. He identified the real estate contract related to the ...

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