Davies ex rel. Harris v. Pasamba
| Decision Date | 15 August 2014 |
| Docket Number | No. 1–13–3551.,1–13–3551. |
| Citation | 17 N.E.3d 763 |
| Parties | Marshall DAVIES, a Disabled Person, by Cook County Public Guardian Robert F. HARRIS, Plaintiff–Appellant, v. Carmelita PASAMBA, Edgardo Pasamba, and Jocelyn Baker, Defendants–Appellees. |
| Court | United States Appellate Court of Illinois |
Robert F. Harris, Public Guardian, of Chicago (Kass A. Plain and Mary Brigid Hayes, of counsel), guardian ad litem.
No brief filed for appellees.
delivered the judgment of the court, with opinion.
Plaintiff Marshall Davies, age 95, is a disabled person who suffers from dementia and, through the public guardian, seeks to recover money that he alleges was wrongfully taken from him by the defendants, Carmelita Pasamba, Edgardo Pasamba, and Jocelyn Baker. Carmelita Pasamba met Davies in 2007 when he was hospitalized due to hip pain at a hospital where she worked as a certified nursing assistant. After Davies was discharged from the hospital, he hired Carmelita to be his caregiver and she began working in that capacity; Carmelita obtained a power of attorney from Davies on April 24, 2008. Carmelita introduced Davies to her sister, Jocelyn Baker, a “CNA, a certified medical aide,” who also helped as Davies' caregiver. Defendant Edgardo Pasamba is the husband to Carmelita and served as a driver for Davies.
¶ 2 Catholic Charities Older Adult Services, a nonprofit agency that receives and assesses reports of suspected abuse, neglect, or financial exploitation of adults age 60 or over in Illinois, received two reports of suspected financial exploitation of Davies by Carmelita.1 Subsequently, on June 23, 2011, Catholic Charities petitioned for the appointment of a guardian for Davies, alleging that he has “severe dementia” and “has named an agent under power of attorney who has not been forthcoming with an accounting of her financial actions on behalf of Mr. Davies.” On July 7, 2011, the probate court appointed the public guardian as temporary guardian of Davies.
¶ 3 On September 11, 2011, the public guardian filed a citation to discover assets under section 16–1 of the Probate Act of 1975 (755 ILCS 5/16–1 (West 2010)
)2 against the Pasamba family, including the three defendants in the case at bar; Carmelita's supervisor at the hospital where she works; the attorney who prepared Davies' power of attorney and will and trust documents; and the health care organization operating the hospital. The public guardian deposed defendants Carmelita, Edgardo, and Jocelyn, none of whom invoked their privilege against self-incrimination during the deposition. On April 26, 2012, the public guardian filed a citation to recover assets under section 16–1 of the Probate Act (755 ILCS 5/16–1 (West 2010) ) against the Pasamba family, the attorney, and the hospital.
¶ 4 In April of 2013, a Cook County grand jury indicted defendants on criminal charges for theft and financial exploitation of Davies and also indicted Carmelita for forgery of a doctor's note on Davies' mental condition. On June 26, 2013, defendants moved to stay the citation to recover assets in the instant case until their pending criminal cases were resolved. They claimed that if the court allowed the citation proceedings to proceed, they would violate their fifth amendment privilege against self-incrimination.
¶ 5 On August 21, 2013, the probate division of the circuit court of Cook County granted a stay of the recovery citation proceedings with respect to defendants; the citation proceedings against the other members of the Pasamba family, the attorney, and the hospital were not stayed. The public guardian moved to reconsider and that motion was denied. On November 15, 2013, the public guardian filed a notice of interlocutory appeal before the appellate court under Illinois Supreme Court Rule 307(a)(1)
(eff. Feb. 26, 2010), seeking reversal of the orders denying the public guardian's motions to reconsider and to lift the stay. For the reasons that follow, we reverse and remand.
¶ 8 Catholic Charities Older Adult Services, a nonprofit agency that evaluates reports of suspected abuse, neglect, or financial exploitation of adults age 60 or over in Illinois, received two reports of suspected financial exploitation of Davies by Carmelita, whom he hired as caregiver in 2007 after his discharge from the hospital. On June 23, 2011, Catholic Charities petitioned for the appointment of a guardian for Davies, alleging that he has “severe dementia” and “has named an agent under power of attorney who has not been forthcoming with an accounting of her financial actions on behalf of Mr. Davies.” On July 7, 2011, the probate court appointed the public guardian as temporary guardian of Davies. On October 12, 2011, the probate court found Davies incompetent and appointed the public guardian as plenary guardian of his estate and person.
¶ 10 On September 11, 2011, the public guardian filed a petition for a citation to discover assets. The public guardian also filed a temporary restraining order and a preliminary injunction pursuant to section 11–101 of the Code of Civil Procedure (735 ILCS 5/11–101 (West 2010)
) to protect Davies' assets from Carmelita, which the court entered on September 15, 2011, and on September 26, 2011, respectively. According to Carmelita's accounting, provided to the probate court on a motion to vacate the temporary restraining order, Carmelita, her sister Jocelyn, and her son Dennis withdrew $112,381.58 for loans from Davies' accounts in 2008. Carmelita also testified at the hearing on the motion to vacate that she withdrew $9,425.21 in 2009 and $24,000 in 2010 of Davies' money for loans to herself and other family members but did not pay the money back.
¶ 11 Next, the public guardian deposed Carmelita, Edgardo, and Jocelyn, who did not assert their fifth amendment right to refuse to answer questions that could incriminate them.
¶ 13 Carmelita testified that she met Davies in 2007 when he was a patient at the hospital where she worked as a certified nursing assistant. After his discharge, she and Jocelyn started working as caregivers for Davies.
¶ 14 Carmelita testified that Davies requested that she have his power of attorney and desired to execute a new will with a trust. She introduced Davies to Alfonso Bascos, an attorney, in April of 2008. Bascos prepared the power of attorney and will and trust documents, which Davies signed on April 24, 2008, and April 27, 2008, respectively. Carmelita believed that Davies was “competent” at that time, but Bascos was concerned about Davies' level of alertness. Consequently, Carmelita asked Dr. Simovic3 to write a note stating that Davies was competent. Dr. Simovic provided her with the note on April 30, 2008, which she gave to Bascos.
¶ 15 Davies' previous will had devised most of his estate to the Salvation Army; however, the new pour-over will transferred Davies' assets to a new trust and devised $50,000 to the Salvation Army, $100,000 to Carmelita, and $25,000 each to her daughter Donabel, her husband Edgardo, and her sister Jocelyn. The new will also designated Edgardo as executor.
¶ 16 Carmelita testified that she received $50,000 a year as a salary for her duties under the power of attorney for Davies, and she received a $50,000 bonus for assisting him in selling his condominium in 2008. In addition, Davies gave her a $30,000 loan for home repairs on May 8, 2008, and Davies loaned her money to pay him back when she could.
¶ 17 Carmelita testified that Edgardo served as Davies' driver but was paid “maybe three times” and received “like $500.” Dennis, her son, also received a $15,000 loan from Davies but never paid any money back; Dennis received a $5,000 check on October 15, 2008, a $5,000 check on October 22, 2008, and a $5,000 check on May 20, 2010. One of the three checks was an “accidental check” Carmelita thought she wrote from her own account instead of Davies' account but she did not correct her mistake.
¶ 19 In Edgardo's discovery deposition, he testified that he served as Davies' driver but did not receive a salary. However, he occasionally received money for driving Davies, and he received a 2000 Buick that he did not pay for from Davies in 2008. Edgardo knew Carmelita received money to remodel their house but he was unsure where it came from or how much she received.
¶ 21 In Jocelyn's discovery deposition, she testified that she first noticed signs of Davies' dementia in 2009. She obtained three loans from Davies: $10,000 on May 11, 2008; $15,000 on July 19, 2008; and $8,000 on September 22, 2008, to repair her house. In January of 2011, she began repaying Davies $100 a month. She had agreed to pay more monthly but did not have enough money.
¶ 23 On April 26, 2012, the public guardian filed a citation to recover assets under section 16–1 of the Probate Act (755 ILCS 5/16–1 (West 2010)
) against Carmelita, Edgardo, and Jocelyn; Carmelita's son Dennis and daughter Donabel; attorney Bascos; and the hospital. The public guardian alleged that the Pasamba family wrongfully appropriated over $536,682 of Davies' assets between 2008 and 2011 and asked the court to award Davies $536,682 in damages. The public guardian alleged that Davies was “severely demented and incapable of entering into contracts or making financial transactions at the time he purportedly executed a power of attorney to Carmelita Pasamba on April 24, 2008,” based on an examination and evaluation of Davies by a licensed psychiatrist, Dr. Geoffrey Shaw.
¶ 25 In April of 2013, a Cook County grand jury indicted Carmelita, Edgardo, and Jocelyn for theft and financial exploitation of Davies and also indicted Carmelita for forgery. The forgery indictment charged that Carmelita prepared a medical note and claimed it was from Dr. Simovic.
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