                                  Illinois Official Reports

                                          Appellate Court



                             Davies v. Pasamba, 2014 IL App (1st) 133551



Appellate Court              MARSHALL DAVIES, a Disabled Person, by Cook County Public
Caption                      Guardian Robert F. Harris, Plaintiff-Appellant, v. CARMELITA
                             PASAMBA, EDGARDO PASAMBA, and JOCELYN BAKER,
                             Defendants-Appellees.



District & No.               First District, Fifth Division
                             Docket No. 1-13-3551


Filed                        August 15, 2014


Held                         In an action arising from defendants’ abuse of their relationship as
(Note: This syllabus         caregivers for plaintiff, a disabled person they met while he was
constitutes no part of the   hospitalized, the trial court abused its discretion in staying the
opinion of the court but     recovery citation proceedings against defendants pending the
has been prepared by the     resolution of the criminal cases against defendants, since extensive
Reporter of Decisions        deposition testimony had already been provided by defendants in the
for the convenience of       citation proceedings, those admissions were already available for use
the reader.)                 against defendants in the criminal cases, the court’s ability to manage
                             its cases would suffer, and the prompt resolution of civil proceedings
                             involving the misappropriation of money from the disabled elderly is
                             favored.



Decision Under               Appeal from the Circuit Court of Cook County, No. 11-P-3699; the
Review                       Hon. Daniel B. Malone, Judge, presiding.



Judgment                     Reversed and remanded.
     Counsel on                 Robert F. Harris, Public Guardian, of Chicago (Kass A. Plain and
     Appeal                     Mary Brigid Hayes, of counsel), guardian ad litem.

                                No brief filed for appellees.



     Panel                      PRESIDING JUSTICE GORDON delivered the judgment of the
                                court, with opinion.
                                Justices McBride and Palmer concurred in the judgment and opinion.


                                                   OPINION

¶1          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

             1
            Neither the parties who reported the suspected abuses nor the date Catholic Charities Older Adult
       Services received the reports appears in the record on appeal.

             2
            Section 16-1 of the Probate Act provides that “the court shall order a citation to issue for the
       appearance before it of any person whom the petitioner believes (1) to have concealed, converted or
       embezzled or to have in his possession or control any personal property, books of account, papers or
       evidences of debt or title to lands which belonged to a person whose estate is being administered in that
       court or which belongs to his estate or to his representative or (2) to have information or knowledge
       withheld by the respondent from the representative and needed by the representative for the recovery of
       any property by suit or otherwise.” 755 ILCS 5/16-1(a) (West 2010).

                                                       -2-
       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.

¶6                                           BACKGROUND
¶7                                       I. Adjudicated Disabled
¶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.

¶9                            II. Petition for a Citation to Discover Assets
¶ 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


                                                  -3-
       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.

¶ 12                                          A. Carmelita
¶ 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.

¶ 18                                          B. Edgardo
¶ 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.




          3
              Dr. Simovic’s first name does not appear in the record on appeal.

                                                       -4-
¶ 20                                          C. Jocelyn
¶ 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.

¶ 22                                 III. Citation to Recover Assets
¶ 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.

¶ 24                                       IV. Criminal Charges
¶ 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.

¶ 26                                       V. Motion to Stay
¶ 27       On June 26, 2013, Carmelita, Edgardo, and Jocelyn moved to stay the recovery citation
       proceedings pending the outcome of their criminal trial. They claimed that if the court
       allowed the citation proceedings to proceed, they would violate their fifth amendment
       privilege against self-incrimination. They also claimed that they are unable to compensate
       Davies if judgment was entered against them.

¶ 28                                             VI. Stay
¶ 29       On August 21, 2013, the probate court granted a stay based on the following factors: (1)
       the posture of the criminal case, (2) the extent to which defendants’ fifth amendment rights
       are implicated, (3) the public interest, (4) the plaintiff’s interest in prompt resolution of the
       civil proceeding, (5) the overlap in subject matter of the criminal and civil proceedings, and
       (6) the government’s involvement as a party in the criminal and civil cases.
¶ 30       The probate court found that five out of six legal factors favored a stay. First, defendants
       risk compromising their criminal case if a stay is denied because the criminal indictment and
       the recovery citation contain similar subject matter. Second, the issues in the criminal and
       civil cases overlap and, therefore, self-incrimination is more likely. Third, no significant
       public harm would occur if the stay was issued. Fourth, Davies’ interest in prompt resolution
       of the civil proceeding weighs against a stay but the delay will not financially prejudice him


                                                   -5-
       due to his settlement funds from the hospital.4 Fifth, the defendants’ conduct in both cases is
       identical and, therefore, the subject matter in the criminal and civil proceedings overlap.
       Sixth, two government offices brought the criminal and civil cases against defendants.
¶ 31        The probate court granted the stay, although the citation proceedings against Carmelita’s
       son Dennis, her daughter Donabel, attorney Bascos, and St. Joseph 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 as a matter of right under
       Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 210), seeking reversal of the orders
       denying the public guardian’s motions to reconsider and to lift the stay. “[A] motion
       requesting a court to stay its own proceedings pending resolution of a related case is in effect
       a request for an injunction, and a decision either granting or denying such a motion is
       immediately appealable under Rule 307(a)(1).” Disciplined Investment Advisors, Inc. v.
       Schweihs, 272 Ill. App. 3d 681, 691 (1995). As a result, this court has jurisdiction over
       Davies’ interlocutory appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26,
       2010). This appeal follows.

¶ 32                                            ANALYSIS
¶ 33       On appeal, the public guardian challenges the probate court’s issuance of a stay of the
       recovery citation proceedings. The public guardian argues that the probate court erroneously
       issued a stay because (1) the privilege against self-incrimination does not protect information
       previously disclosed under oath, (2) the stay unfairly prevents the public guardian from using
       defendants’ admissions to establish fraud, and (3) the probate court abused its discretion in
       entering a stay of the recovery citation proceedings.
¶ 34       Defendants have not filed a brief, so the instant appeal is taken for consideration on the
       record and Davies’ brief only. In re Petition of Howard, 343 Ill. App. 3d 1201, 1204 (2003).

¶ 35                                      I. Standard of Review
¶ 36         The entry of a stay maintains the case in its existing state without ruling on the dispute
       between the parties (Kaden v. Pucinski, 263 Ill. App. 3d 611, 615 (1994)), and it is within the
       probate court’s discretion (Jacksonville Savings Bank v. Kovack, 326 Ill. App. 3d 1131, 1136
       (2002)). When a criminal action is pending during the course of a civil action, a court can
       stay the civil action to protect a party’s right against self-incrimination. People ex rel.
       Hartigan v. Kafka & Sons Building & Supply Co., 252 Ill. App. 3d 115, 119 (1993). However,
       the party moving for a stay “must justify it by clear and convincing circumstances
       outweighing potential harm to the party against whom it is operative.” Zurich Insurance Co.
       v. Raymark Industries, Inc., 213 Ill. App. 3d 591, 595 (1991).
¶ 37        When evaluating whether to stay a civil suit to prevent compulsory self-incrimination,
       this court applies the abuse of discretion standard of review. Jacksonville Savings Bank, 326
       Ill. App. 3d at 1137. An abuse of discretion occurs when “the ruling is arbitrary, fanciful, or
       unreasonable, or when no reasonable person would take the same view.” Bovay v. Sears,
       Roebuck & Co., 2013 IL App (1st) 120789, ¶ 26.

          4
           On July 30, 2013, the court approved a settlement agreement between Davies and the hospital and
       dismissed the hospital as a respondent in the proceedings.

                                                    -6-
¶ 38                                 II. The Fifth Amendment Right
¶ 39        The fifth amendment to the United States Constitution provides that no person “shall be
       compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V. The
       fifth amendment does not, however, mandate a stay of civil proceedings pending the outcome
       of similar or parallel criminal proceedings. See People ex rel. Hartigan v. Kafka & Sons
       Building & Supply Co., 252 Ill. App. 3d 115, 119 (1993) (“Where a criminal action is
       simultaneously pending with a civil action, courts may stay the civil proceeding based on the
       fifth amendment until the resolution of the criminal matter.” (Emphasis added.)); Keating v.
       Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995) (the Constitution does not
       require a stay of civil proceedings pending the outcome of criminal proceedings); Nowaczyk
       v. Matingas, 146 F.R.D. 169, 174 (N.D. Ill. 1993) (“A stay of civil discovery is sometimes
       appropriate to protect competing interests arising from parallel civil and criminal proceedings
       involving the same subject matter.” (Emphasis added.)).
¶ 40        However, this is not a case where the defendants are completely hamstrung trying to
       defend themselves in a civil proceeding because they might incriminate themselves in a
       pending criminal investigation or case. Here, defendants have already shown through their
       deposition testimony, where they did not invoke their fifth amendment rights, that they took
       advantage of the plaintiff, who suffers from dementia. The information that they already
       provided in the civil case caused their criminal indictment.

¶ 41                              III. Previously Disclosed Information
¶ 42       The public guardian argues that the privilege against self-incrimination does not protect
       previously disclosed information and, therefore, the public guardian is entitled to use
       defendants’ discovery deposition testimony in the recovery citation proceedings. “A party
       who chooses to testify in a civil case in spite of the risk that a prosecutor later might seek to
       use his statements against him in a criminal prosecution involving the same subject matter is
       hard put to complain about the subsequent denial of a stay.” Microfinancial, Inc. v. Premier
       Holidays International, Inc., 385 F.3d 72, 78-79 (1st Cir. 2004).
¶ 43       For instance, in Microfinancial, Inc., even though one defendant had already given
       extensive deposition testimony, the defendants moved to stay their civil case, claiming that
       they were subjects of a grand jury investigation that was related to the plaintiff’s civil claims.
       Microfinancial, Inc., 385 F.3d at 76-78. The court found that there was no need to stay the
       civil proceedings because one defendant had already given extensive testimony and,
       therefore, a stay would not significantly burden the defendants’ fifth amendment rights.
       Microfinancial, Inc., 385 F.3d at 78. The court reasoned that “[b]y failing to invoke his Fifth
       Amendment privilege, [the defendant] likely waived the privilege with respect to the subject
       matter of his deposition testimony for the duration of the proceeding in which that testimony
       was given.” Microfinancial, Inc., 385 F.3d at 78.
¶ 44       The fifth amendment right against self-incrimination does not apply to the testimony
       already given in the instant case. Like Microfinancial, Inc., this case involves defendants who
       answered questions without asserting their right against self-incrimination and gave extensive
       testimony in their depositions and, in Carmelita’s case, before the probate court. According
       to Carmelita’s accounting, Carmelita, her sister Jocelyn, and her son Dennis withdrew


                                                   -7-
       $112,381.58 in loans from Davies in 2008. Carmelita received $9,425.21 in loans in 2009
       and $24,000 in 2010. She received a $50,000 bonus for assisting Davies in selling his
       condominium in 2008 and a $30,000 loan for home repairs on May 8, 2008. Edgardo testified
       that he occasionally received money for driving Davies, and he was given a 2000 Buick by
       Davies. Jocelyn testified that she received three loans of $10,000, $15,000, and $8,000 to
       repair her house from Davies. Defendants cannot use a stay to “preserve what [the party]
       already has surrendered” in the civil case. Microfinancial, Inc., 385 F.3d at 79.
¶ 45       Thus, the previously disclosed information could not provide a basis for staying the
       recovery citation proceedings.

¶ 46                        IV. Use of Defendants’ Testimony to Prove Fraud
¶ 47       Additionally, the public guardian argues that a stay of civil proceedings unfairly prevents
       the public guardian from using defendants’ deposition testimony to establish fraud.
¶ 48       In Cardiel v. Warren, 191 Ill. App. 3d 816, 821 (1989), the court found that it was proper
       to admit into evidence a defendant’s answers to interrogatories and answers to questions in a
       pretrial oral deposition. The court reasoned that “answers given in discovery depositions may
       be used as admissions made by a party *** in the same manner and to the same extent as any
       other admission made by that person” and “when relevant to issues in the case, admissions by
       a party are admissible as substantive evidence of the truth of the statements made or of the
       existence of any facts which they have a tendency to establish.” Cardiel, 191 Ill. App. 3d at
       821.
¶ 49       Like the defendant in Cardiel, Carmelita admitted to making transactions to benefit
       herself and her family after obtaining a power of attorney from Davies. For example, during
       the time Carmelita acted under the power of attorney, she received a $30,000 loan for home
       repairs, her sister Jocelyn received a $33,000 loan for home repairs, and her son Dennis
       received a $15,000 loan from Davies. “A power of attorney gives rise to a general fiduciary
       relationship between the grantor of the power and the grantee as a matter of law” and “the
       presumption is that a transaction between the dominant and servient parties which profits the
       dominant party is fraudulent.” White v. Raines, 215 Ill. App. 3d 49, 59 (1991). Due to
       defendants’ extensive deposition testimony, the public guardian has evidence to establish the
       fraud. Therefore, we agree with Davies that the stay prevents the public guardian from using
       defendants’ deposition testimony to prove fraud.

¶ 50                                  V. The Trial Court’s Decision
¶ 51       The trial court considered six factors in its decision-making process in granting the stay.
       However, these factors need not be considered when defendants have already given their
       testimony in extensive depositions because again, the fifth amendment right against
       self-incrimination does not apply to testimony already given.
¶ 52       Ordinarily, a court will consider certain factors before a defendant has testified or
       provided evidence of his wrongful conduct in determining whether a stay should be granted
       when a civil proceeding is pending and there is a criminal investigation pending or likely to
       occur. United States v. Kordel, 397 U.S. 1 (1970). Those factors include: (1) the plaintiff’s
       interest in an expeditious resolution of the civil case and any prejudice to the plaintiff in not
       proceeding; (2) the interests of and burdens on the defendant, including the extent to which

                                                   -8-
       defendant’s fifth amendment rights are implicated; (3) the convenience to the court in
       managing its docket and efficiently using judicial resources; (4) the interests of persons who
       are not parties to the civil proceeding; and (5) the interests of the public in the pending civil
       and criminal actions. Jacksonville Savings Bank v. Kovack, 326 Ill. App. 3d 1131, 1136
       (2002); Keating, 45 F.3d at 324-25; Nowaczyk, 146 F.R.D. at 174.
¶ 53       However, even if a court considers these factors under all circumstances where a
       defendant claims a fifth amendment right against self-incrimination, none of these factors
       would favor the defendants here.

¶ 54                                   A. The Plaintiff’s Interests
¶ 55       The 95-year-old plaintiff here suffered a substantial financial loss and has a right to
       proceed with his civil case against the defendants and such recovery of his lost funds during
       his lifetime. People who claim to have been victimized by fraud or other crimes are entitled
       to pursue their civil remedies. They should not be required to receive slower justice simply
       because the conduct they allege is egregious enough to attract the attention of criminal
       authorities.

¶ 56                                 B. The Defendants’ Interests
¶ 57       The defendants have already given extensive deposition testimony that they cannot take
       back. They have waived their privilege against self-incrimination. The admissions that have
       been made were significant and a stay of the proceedings will be of no or limited benefit in
       the criminal proceedings because their admissions can and will be used against them.

¶ 58                                C. Convenience to the Trial Court
¶ 59       A stay would burden the court’s ability to manage its cases and an indefinite delay could
       cause the court to be in the position of waiting until the defendants serve their jail sentences
       in the event that they are convicted and sentenced to a period of incarceration.

¶ 60                                 D. Private and Public Interests
¶ 61       Finally, the interests of nonparties and the public favor prompt resolution of civil
       proceedings, especially promptly recovering misappropriated funds by people in a fiduciary
       relationship who manipulate the elderly, particularly when weighed against the interest in a
       merely conjectural criminal prosecution.

¶ 62                                         CONCLUSION
¶ 63       Having reviewed the trial court’s decision in light of the particular circumstances of this
       case, we conclude that the trial court’s ruling is unreasonable and as a result, the trial court
       abused its discretion in granting defendants’ motion to stay the civil proceedings.

¶ 64      Reversed and remanded.




                                                   -9-
