Gurga v Roth (IL)

Summary: A probate case does not adjudicate title to land where an inconsistent claim of title is based upon other recorded instruments and the probate case contained no pleadings for a quiet title action.

Gurga v Roth, 2011 IL App (2d) 100444, 964 NE2d 134, 357 Ill Dec 771 (2nd D, 2011). 

Facts: Maria and Eugene Gurga owned real estate at 204 North Adams Street in Westmont (property). Eugene and Maria had four children: Mary, Barbara, Theresa, and Zbigniew.  Eugene and Maria executed a quitclaim deed for the property to their daughter Barbara and had it recorded on October 7, 1996.  Eugene died in August of 1997.  In 1999, Mary moved into the house to take care of Maria. 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, and recorded on August 10, 2009.

Barbara died on November 27, 2007.  Barbara’s life partner Ellen Roth (Roth), filed Barbara’s will and a petition for probate in the circuit court of Cook County.  Roth was the sole beneficiary and the independent administrator.  Based upon the October 7 quitclaim deed, Roth released the estate’s interest in the house to herself.  On March 13, 2009, a final report was served upon Mary giving notice that the heirs shall have 42 days to object.  No objection was made.  The estate was closed on April 28, 2009.

On November 5, 2009, Roth filed a complaint in forcible entry and detainer to evict Mary.  In response, Mary filed a quiet title claim citing the transfer of the property in 2007 to a trust listing Mary as the sole beneficiary.  Mary alleged that the October 7 quitclaim deed was a mutual mistake in which the intention of the parties was to have tax bills sent to Barbara’s residence.  Roth argued that Mary needed to raise the quiet title issue during probate, and that the issue was now barred.  The trial court agreed with Roth and found that the elements of res judicata had been met and dismissed the quiet title claim with prejudice.  The trial court then transferred the eviction case to another court for continued proceedings.  Mary appealed.

Holding: The appellate court held that the trial court impermissibly used res judicata to dismiss Mary’s claim.  Res judicata, or claim preclusion, bars and action if there was previous litigation between the parties or their privies with the same cause of action that was resolved on the merits.  Res judicata was not applicable because Roth’s forcible entry and retainer cause of action dealt with the right to possession; whereas Mary’s quiet title action dealt with the question of title.  Without identity of cause of action, res judicata could not bar Mary’s claim.

The appellate court rejected Roth’s argument of collateral estoppel.  Collateral estoppel, or issue preclusion, bars litigation if an identical issue was decided in prior adjudication in which there was a final judgment on the merits and estoppel is asserted against the party or someone in privity to that action.  Despite using ownership as an affirmative defense in the eviction hearing, the trial court did not indicate a determination of title in its holding.  Furthermore, it is unclear whether Mary had a duty to raise the claim at the probate hearing because the claim is based upon the trustee’s deed, not as an heir of Barbara.  If Roth had filed an action for possession or to determine title in the probate case and Mary failed to participate, and an order was entered in Roth’s favor, then res judicata would be appropriate.  Because probate courts are courts of general jurisdiction and are empowered to hear and decide on all justiciable matters, the appellate court held that the language in 735 ILCS 5/2-103(b) which requires that quiet title actions be brought in the county in which the property is located was not controlling, and did not bar Mary from bringing a quiet title suit in probate court.  For the above reasons, the appellate court reversed the judgment of the circuit court and remanded for further proceedings.    

Opinion Year: 
By: ATG Underwriting Department | Posted on: Wed, 06/20/2012 - 2:39pm