In re Estate of Aryeh
| Decision Date | 12 March 2021 |
| Docket Number | 1-19-2418 |
| Citation | 2021 IL App (1st) 192418,190 N.E.3d 886,454 Ill.Dec. 904 |
| Parties | IN RE the ESTATE OF: Moshe David ARYEH, Deceased. (Performance Food Group, Inc., Petitioner-Appellant, v. Estate of Moshe David Aryeh, Deceased, Respondent-Appellee.) |
| Court | United States Appellate Court of Illinois |
James S. Zmuda and Keisha N. Douglas, of Califf & Harper, P.C., of Moline, for appellant.
Christopher M. Heintskill and Carrie A. Harington, of Levenfeld Pearlstein, LLC, of Chicago, for appellee.
¶ 1 This interlocutory appeal arises from an order of the circuit court denying Petitioner Performance Food Group, Inc.’s (PFG) Petition for Declaration of Interest in Real Estate that was filed against the Estate of Moshe David Aryeh (Estate). On appeal, PFG contends that the circuit court erred in finding that the property located at 6201 North Lawndale Avenue in Chicago, Illinois (Lawndale Property) was not owned by decedent, Moshe David Aryeh (David), and his wife, Shoshanna Aryeh (Shoshanna) as tenants in common, but instead as joint tenants with right of survivorship. For the following reasons, we affirm.
¶ 3 The underlying facts are not in dispute. On June 25, 2018, PFG filed a Petition for Letters of Administration to Collect against the Estate. In its petition, PFG alleged that David died on May 17, 2018, and that his place of residence at the time of his death was 6116 North Monticello Avenue in Chicago, Illinois (Monticello Property). PFG later alleged, on information and belief, that subsequent to October 21, 2010, David and Shoshanna maintained a homestead at the Monticello Property as husband and wife. This was supported by a copy of a Quit Claim Deed filed on October 21, 2010, which transferred the Monticello Property to David and Shoshanna in fee simple as tenants by the entirety.
¶ 4 PFG claimed that it was an interested party in the Estate because it had a judgment against David that was entered in Rock Island County, Illinois on December 15, 2017, in case number 17 L 99. PFG alleged that it made numerous attempts to discover David's assets and collect its judgment prior to David's death. PFG further alleged that after David's death it also attempted, unsuccessfully, to serve Shoshanna for the purpose of discovering David's assets for payment of the judgment.
¶ 5 On August 8, 2018, PFG filed supplemental information, regarding its Petition for Letters of Administration to Collect, alleging that subsequent to the filing of its petition, it discovered a probate asset: the Lawndale Property. According to PFG's pleading, on or about May 20, 2015, a Warranty Deed was filed "purportedly" transferring the Lawndale Property to David and Shoshanna in fee simple as tenants by the entirety. PFG relied on section 1c of the Illinois Joint Tenancy Act (Act) ( 765 ILCS 1005/1c (West 2018) ), which provides that a valid tenancy by the entirety applies only to property maintained or intended to be maintained as a homestead by a husband and wife, and further that the instrument must expressly declare that the conveyance was made to tenants by the entirety. Additionally, PFG pointed out that the deed for the Lawndale Property expressly stated that it was not homestead property, and that the purported conveyance in tenancy by the entirety of the Lawndale Property was invalid and unenforceable. As such, PFG maintained that the Lawndale Property was held as tenants in common and accordingly did not automatically pass to Shoshanna through any rights of survivorship, therefore making it a probate asset.
¶ 6 Subsequent to the filing of PFG's initial pleadings, David's last will and testament was located and admitted to probate whereby Shoshanna was appointed as executor of the estate. Thereafter, PFG and other creditors filed their claims against the estate.1 On November 5, 2018, PFG filed a claim for $244,006.07 plus interest indicating that the default judgment order was recorded with the Cook County Recorder of Deeds as document number 1822219127.
¶ 7 On December 27, 2018, PFG filed a Petition to Terminate Independent Administration by Shoshanna as Executor to protect its interest and that of the Estate's other creditors. Among other things, the petition alleged that David and Shoshanna improperly attempted to shield the Lawndale Property from creditors by improperly titling it as a tenancy by the entirety, despite their failure to meet the statutory requirements for such title.
¶ 8 On February 21, 2019, Shoshanna filed her response to PFG's Petition to Terminate. In her response, Shoshanna asserted that while she and David resided at the Monticello Property, they purchased the Lawndale Property with the intention of completing construction and converting it to their primary residence. However, David passed away before that occurred. Shoshanna acknowledged that a married couple can only own one property as tenants by the entirety; however, contrary to PFG's position, she asserted that ownership of another property does not automatically become a tenancy in common and thus an asset of the Estate.
¶ 9 On June 20, 2019, PFG filed a Petition for Declaration of Interest in Real Estate, which is the subject of this appeal. In that petition, PFG restated its prior allegations that the Lawndale Property was held as tenants in common and was thus a probate asset.
¶ 10 The Estate filed its response to PFG's petition on July 31, 2019, in which it reasserted its prior arguments that the Lawndale Property was not the Estate's property because section 1c states that an estate shall, by operation of law, become a joint tenancy on the creation and maintenance by both spouses together of other homestead property. The Estate further maintained that under the Act, the intention, but failure, to create a tenancy by the entirety creates a joint tenancy. The Estate also noted that PFG failed to provide any authority to the contrary.
¶ 11 In its August 6, 2019, response, PFG argued that the Estate failed to provide any evidence demonstrating a valid tenancy by the entirety for the Lawndale Property, claiming instead that the Warranty Deed was an invalid and unenforceable transfer to David and Shoshanna as tenants by the entirety. PFG further contended that because the deed failed to expressly declare the transfer to the parties as joint tenants, the default rule of tenants in common applied to the Lawndale Property under the plain language of the Act.
¶ 12 On August 13, 2019, the circuit court heard argument on PFG's Petition for Declaration of Interest in Real Estate. No report of proceedings or bystander's report from this hearing is included as part of the record on appeal. At the conclusion of the hearing, the circuit court entered an order finding that after consideration of the filings and arguments of counsel, David and Shoshanna intended to create the right of survivorship as to the Lawndale Property, thus rendering joint tenancy. Additionally, the court determined that due to the right of survivorship, the Lawndale Property was not an estate asset. Lastly, the court added Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016)) language to the order, indicating that there was no just reason to delay appeal of the ruling.
¶ 13 On August 29, 2019, PFG filed a motion to reconsider the circuit court's declaration that the Lawndale Property was held in joint tenancy. In support of its motion, PFG argued that the circuit court's reliance on Mittel v. Karl , 133 Ill. 65, 24 N.E. 553 (1890) was misplaced because: (1) the facts of the case were distinguishable and its holding inapplicable to this case, (2) the rule of law has been replaced by subsequent rulings and is no longer valid, and (3) applying the current rule of law requires a declaration that the Lawndale Property was held as tenants in common.
¶ 14 PFG contended that the facts of Mittel were plainly distinguishable because no words of survivorship were included in the Lawndale property deed. Additionally, PFG contended that the intention of the parties, when found, will be given effect if consistent with the language used and with the law and public policy. PFG cited Tindall v. Yeats , 392 Ill. 502, 507, 64 N.E.2d 903 (1946) and Porter v. Porter , 381 Ill. 322, 325, 45 N.E.2d 635 (1942) in support. PFG concluded that, when applying the current rule of law, the Lawndale Property was held as tenants in common, and that section 1c of the Act does not automatically convert an invalid tenancy by the entirety to a joint tenancy. PFG maintained that the law governed: not the parties’ intent. PFG argued that the circuit court's declaration of joint tenancy in this case was contrary to the legal requirements of the Act and could not stand.
¶ 15 The Estate filed its response on October 9, 2019, noting the standard for filing a motion to reconsider and specifically noting that new legal theories or factual arguments should not be raised at that time. The Estate contended that the circuit court correctly ruled that the Lawndale Property was a joint tenancy pursuant to the Act, and that PFG's motion to reconsider simply raised the same arguments that were rejected by the circuit court in its initial ruling. Because PFG failed to present any new facts or demonstrate how the court misapplied existing law, the Estate concluded that the motion to reconsider should be denied.
¶ 16 PFG filed a reply on October 18, 2019, alleging that the Estate's response showed a conflict of interest because Shoshanna was both David's spouse and the executor of the estate. PFG further contended that the circuit court, in open court, expressly invited it to file a motion to reconsider if it found any authority contrary to Mittel , which was the basis for the court's ruling. PFG concluded that the cases cited in its motion to reconsider establish that the circuit court's ruling was in error.
¶ 17 The court was not persuaded and denied...
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