Opinion
1-23-0840
09-29-2023
MOARIJ KHAN, Plaintiff-Appellant, v. AMBERINA KHAN, MANSAB KHAN, ALI HUSSAIN SHIRAZI, AHMAD HASSAN a/k/a A HASSAN, MERCHANTS BONDING COMPANY and WEST BEND MUTUAL INSURANCE COMPANY, Defendants-Appellees.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County 22 L 6084 Honorable Michael F. Otto, Judge, Presiding
JUSTICE ELLIS delivered the judgment of the court. Presiding Justice Howse and Justice McBride concurred in the judgment.
ORDER
ELLIS JUSTICE
¶ 1 Held: Affirmed. Court did not err in granting stay of lawsuit.
¶ 2 Plaintiff Moarij Khan sued his siblings and two notaries located in Illinois in the circuit court of Cook County after defendants allegedly participated in the forging of plaintiff's and his mother's names on documents to convert property located in India. Plaintiff had a pre-existing lawsuit in India to prevent the conversion of that property, in which he and his mother hold an interest. That lawsuit is still pending.
¶ 3 Here in the circuit court, defendants moved to dismiss this action, given the pending action in India. In the alternative, they asked that the Cook County suit be stayed pending the outcome of the India litigation. The circuit court denied the motion to dismiss but stayed the action. Plaintiff now appeals the stay. We agree with the circuit court and affirm.
¶ 4 BACKGROUND
¶ 5 We draw our facts from the allegations in the complaint. Plaintiff Moarij Khan ("Moarij"), defendant Amberina Khan ("Amberina"), and defendant Mansab Khan ("Mansab") are siblings. Their mother is Rasheeda Begum ("Rasheeda"), who is not a party to this action. The four of them have jointly owned real property in the Republic of India since 1986 (the "India property").
¶ 6 In 2007, plaintiff Moarij discovered that certain individuals to whom he refers as the "Kumars" had created fraudulent documents and falsely claimed exclusive ownership of the India property. In 2016, plaintiff Moarij filed suit in India against the Kumars to protect his family's exclusive ownership of the property. He obtained an injunction in 2018 that prohibited the Kumars from conveying the property.
¶ 7 The complaint alleges, however, that two of plaintiff Moarij's siblings, defendants Amberina and Mansab, later conspired against Moarij and his mother. First, in July 2019, Amberina and Mansab met with a notary public in Chicago named Ali Hussain Shirazi ("defendant Shirazi"), also a defendant here, to witness and notarize signatures on an Indian legal document called a "ratification deed." That document purported to indicate that the four owners of the Indian property-plaintiff Moarij, his siblings, and their mother-had ratified the Kumars' claim to ownership of that property.
¶ 8 That, of course, required the signatures of all four co-owners. Defendants Amberina and Mansab signed their own signatures, then signed for plaintiff Moarij and their mother. Shirazi then affixed his notary seal to the document, attesting to the genuineness of all four signatures, though only two of the four were actual signatories.
¶ 9 Second, in September 2019, defendants Amberina and Mansab met with another notary named Ahmad Hassan, also a named defendant here, in Hickory Hills. They asked him to witness and notarize signatures on an Indian document entitled "special power of attorney." That document purported to grant an individual in India with power of attorney to further the ratification of the Kumars' wrongful claim to ownership of the property.
¶ 10 Once again, defendants Amberina and Mansab signed their own names and forged the names of plaintiff Moarij and their mother. Hassan affixed his notary seal and signed below the signatures of Amberina and Mansab and their signatures for plaintiff Moarij and their mother. (Hassan would later admit to his wrongdoing in a sworn affidavit attached to the complaint; the Illinois Secretary of State revoked his commission as a notary public based on that admission.)
¶ 11 The complaint alleges that in October 2019, the Kumars paid defendant Amberina the equivalent of about $53,000 in India rupees for the forged documents. Defendants Amberina and Mansab allegedly received additional payments from the Kumars. With the ratification deed and power-of-attorney in hand, the Kumars proceeded to sell the India property in pieces to various third parties.
¶ 12 When he later discovered what had happened, plaintiff Moarij obtained a second injunction in August 2020 in the India lawsuit. That injunction barred Indian government officials from registering any further sales deeds regarding that property until order of the court.
¶ 13 Here in the circuit court, plaintiff Moarij sued his siblings (Amberina and Mansab) for fraudulent concealment, civil conspiracy, and fraud. He sued the two notaries (Hassan and Shirazi), along with their bonding companies, for violating the Illinois Notary Public Act. See 5 ILCS 312/7-101 (West 2018) ("A notary public and the surety on the notary's bond are liable to the persons involved for all damages caused by the notary's official misconduct.").
¶ 14 For each count against the notaries, the damages plaintiff claims are the loss of plaintiff's "value and benefit of his one-third interest in the [Indian] Property." For each count against his siblings, the claimed damages are "the loss of his interest in the Property and loss of the proceeds from the sale of the Property." He estimates these damages at $666,666.66.
¶ 15 While other defendants answered the complaint, defendant Hassan moved, under section 2-619(a)(3) of the Code of Civil Procedure, to dismiss the action due to a prior pending action or, in the alternative, to stay this action pending the outcome of the India litigation. See 735 ILCS 5/2-619(a)(3) (West 2018). The circuit court declined to dismiss the suit. But the court stayed the action, based not on section 2-619 but on its inherent authority, pending the outcome of the India litigation. This appeal followed.
¶ 16 ANALYSIS
¶ 17 Our jurisdiction is proper under Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017). A stay order is injunctive in nature; Rule 307(a)(1) confers appellate jurisdiction as of right from an order granting a stay. Lisk v. Lisk, 2020 IL App (4th) 190364, ¶ 22; Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st) 132842, ¶¶ 31-35.
¶ 18 Plaintiff raises several arguments against the propriety of the stay. The first is a legal one. He claims that, though the circuit court entered the stay based on its inherent authority, not on section 2-619(a)(3), the court was nevertheless constrained by the language of section 2-619(a)(3). Thus, says plaintiff, the trial court could only stay this action if it determined that "there is another action pending between the same parties for the same cause." 735 ILCS 5/2-619(a)(3) (West 2022). He then proceeds to review the case law governing dismissals under section 2-619(a)(3) to demonstrate that this standard was not met here.
¶ 19 Plaintiff's underlying premise is incorrect. Yes, a court may stay a case under section 2-619(a)(3); while one typically thinks of that statute as governing dismissals, the language permits a "motion for dismissal of the action or for other appropriate relief." Id. § 2-619(a); People ex rel. Department of Public Aid v. Santos, 92 Ill.2d 120, 130 (1982) (supreme court substituted relief of stay instead of dismissal on appeal); see In re Marriage of Murugesh & Kasilingam, 2013 IL App (3d) 110228, ¶ 19 (though considering dismissal there, noting that stay is authorized under section 2-619(a)(3)).
¶ 20 But the court's authority to stay an action is by no means limited to section 2-619(a)(3), nor could it be. A stay is a type of injunction, an equitable remedy that the circuit court has the inherent authority to issue. Ardt v. Illinois Department of Professional Regulation, 154 Ill.2d 138, 146 (1992). "This inherent equitable power, which is derived from the historic power of equity courts, can neither be taken away nor abridged by the legislature." Id. So while a statute may provide for the remedy of a stay and even broaden the context in which it could be invoked, no statute can strip or limit the circuit court's authority to impose a stay. Id.
¶ 21 Indeed, a court may issue a stay sua sponte, regardless of the parties' preferences. See Estate of Lanterman v. Lanterman, 122 Ill.App.3d 982, 990 (1984). The stay authority arises from the court's inherent power to control the disposition of its cases. Lisk, 2020 IL App (4th) 190364, ¶ 23; Vasa North Atlantic Insurance Co. v. Selcke, 261 Ill.App.3d 626, 628 (1994).
¶ 22 With that legal question settled, we consider plaintiff's argument that the circuit court erred in granting a stay. We review the trial court's issuance of a stay for an abuse of discretion. Lisk, 2020 IL App (4th) 190364, ¶ 22; Guarantee Trust Life Insurance Co. v. Platinum Supplemental Insurance, Inc., 2016 IL App (1st) 161612, ¶ 35. This standard is" 'the most deferential standard of review recognized by law.'" Cholipski, 2014 IL App (1st) 132842, ¶ 39 (quoting Khan v. BDO Seidman, LLP, 2012 IL App (4th) 120359, ¶ 82). The court abuses its discretion when the trial court acts arbitrarily, exceeds the bounds of reason, or ignores or misapprehends the law. Id. Another way of saying the same thing is that an abuse of discretion occurs when no reasonable person would adopt the view of the circuit court. Blum v. Koster, 235 Ill.2d 21, 36 (2009).
¶ 23 When two pending actions involve substantially the same subject matter, a court may stay the proceedings in one matter to see if the disposition of one may settle the other. Lisk, 2020 IL App (4th) 190364, ¶ 23. The court should consider such factors as "comity; the prevention of multiplicity, vexation, and harassment; the likelihood of obtaining complete relief in the foreign jurisdiction; and the res judicata effect of a foreign judgment in the local forum." Kellerman v. MCI Telecommunications Corp., 112 Ill.2d 428, 447-48 (1986). Generally, "a trial court does not act 'outside its discretion' by staying a proceeding in favor of another proceeding 'that could dispose of significant issues.'" Cholipski, 2014 IL App (1st) 132842, ¶ 40 (quoting Khan, 2012 IL App (4th) 120359, ¶ 60).
¶ 24 There is obviously substantial overlap between the India lawsuit and this action. The parties are not identical, of course; while plaintiff's siblings are parties in both actions, there is no claim against the two defendant notaries or their bonding companies in the India litigation. And plaintiff correctly notes that the operative core of facts alleged here-attempts by plaintiff's siblings, via the notaries, to forge documents concerning the India property-are only a subset of the broader story at issue in India concerning the Kumars' attempt to assert control over the India property. He likewise notes that his siblings share his interests in the India litigation, whereas in this matter, they are on opposite sides. (Given what is alleged in this suit, it is not clear to us how plaintiff's siblings would share the same interests with him in any way at this point; but we will concede him this point for purposes of argument.)
¶ 25 We agree with defendant Hassan that the key point is the issue of damages. The ultimate loss alleged is the same in both cases-the deprivation of plaintiff's interest in the India property. If plaintiff is successful in the India litigation in recovering that interest or, in the alternative, obtaining compensation for his loss, he will be made whole or at least substantially so. Which is to say, the damages he claims in this case will either be eliminated or significantly reduced.
¶ 26 Use the example of defendant Hassan, as he was the party who sought the stay below. The complaint attaches documentation that Hassan has already admitted to misconduct in affixing his notary to signatures that he knew were not genuine. Suppose, hypothetically, that the evidence against Hassan is so clear and undisputed that plaintiff seeks summary judgment against him. And suppose the court grants that motion, entering summary judgment on the question of liability against defendant Hassan. What then? What are plaintiff's damages? Surely those damages would be far less if plaintiff ultimately recovers his property via the India litigation or, alternatively, receives an award of compensation for his loss. True, plaintiff seeks punitive damages and attorney fees, which are not insubstantial, but there is no question that a sizeable portion of his damages claim depends on the outcome of the India litigation.
¶ 27 The circuit court here would be powerless to affect the result of the contest over the India property. Nothing in this lawsuit requests such action-understandably, given the pending action in India and the apparent lack of jurisdiction an Illinois court would have over this property in India. The court here cannot know the full measure of damages to award unless and until the India courts decisively speak.
¶ 28 All of which is to say, if plaintiff succeeds in protecting his interests via the litigation in India, that result will have a significant impact on the Cook County litigation. It could reduce the damages in this suit substantially, entitling defendants here to a significant offset. And the same result would obtain if the court in India determines that plaintiff is not entitled to his share of the India property for whatever reason, at which point defendants would have a strong argument (which they currently lack) about whether plaintiff is entitled to any damages at all for the loss of his interest in the India property. Either way, the outcome of the India litigation will have a profound impact on the outcome of the lawsuit in Cook County, and the circuit court could not possibly enter judgment on an award for damages without knowing the outcome in India.
¶ 29 Plaintiff complains that the already lengthy litigation in India shows no sign of end, that the backlog in cases in India far exceeds anything we see in Illinois. We are sympathetic, but that fact changes nothing. Regardless of how long that litigation takes, the circuit court would be unable to determine damages relative to the India property until that suit is concluded. It was well within the exercise of the court's discretion to decide to await the outcome of the India lawsuit.
¶ 30 CONCLUSION
¶ 31 The judgment of the circuit court is affirmed.
¶ 32 Affirmed.