Abed v. Elsharif

234 N.E.3d 890

Emad ABED, Appellant-Defendant

v.Andrea ELSHARIF and Surayyah Seif ElSharif, Co-Personal Representatives of the Estate of Seif ElSharif, and Samirah Realty, LLC, Appellees-Plaintiffs

Court of Appeals Case No. 23A-CT-1486

Court of Appeals of Indiana.

Filed April 29, 2024

Appeal from the Lake Superior Court, The Honorable Bruce D. Parent, Special Judge, Trial Court Cause No. 45D11-2105-CT-459

Attorney for Appellant: D. Eric Neff, Crown Point, Indiana

Attorneys for Appellees: Nancy J. Townsend, J. Brian Hittinger, Krieg DeVault LLP, Merrillville, Indiana, Alexandra Wilson Pantos, Krieg DeVault LLP, Indianapolis, Indiana

Kenworthy, Judge.

Case Summary

[1] Emad Abed appeals the trial court’s judgment setting aside quitclaim deeds and other written instruments purportedly executed by his late uncle, Seif ElSharif ("Seif"), to transfer ownership of all Seifs assets to Abed, and ordering Abed to pay Seif's estate over $3 million dollars in damages and attorney fees. On appeal, Abed contends the trial court (1) erred in denying his demand for a jury trial, and (2) abused its discretion in denying his motion for the trial judge to recuse. We affirm. Facts and Procedural History

[2] Seif died intestate on September 25, 2019, leaving one adult and two minor daughters as his heirs. Seifs longtime attorney had prepared estate planning documents and delivered them to Seif on June 20, but Seif never executed them. On October 1, Seif's estate was submitted to probate. His ex-wife and mother of his children, Andrea ElSharif ("Andrea"), and oldest daughter, Surayyah ElSharif ("Surayyah"), were appointed co-personal representatives.

[3] Prior to his death, Seif owned personal real estate and held ownership interests in several adult entertainment enterprises in Indiana and Illinois. His assets included all interest in Indiana companies Samirah Realty, LLC and Seif, LLC. Seif owned a residence on Killarney Drive in Dyer, Indiana ("Killarney residence"), and through Samirah Realty, LLC, he owned commercial real estate on Summer Street in Hammond, Indiana ("Summer Street property") (collectively, "Indiana Real Estate"). Seif also owned a vacant parcel of land on Shannon Bridge Drive ("Shannon Bridge lot").

[4] According to a probate inventory filed in August 2020, Seifs property also included the following assets: (1) stock in four Indiana corporations: MIJ, Inc., Saharah Inc., Surayyah Inc., and Benedict Inc.; (2) a BMO Harris bank account with approximately $54,000 cash; (3) interest in two Indiana limited liability companies: Swan Condos, LLC, and 601 Killarney LLC; (4) interest in two Illinois limited liability companies: SSNN Realty, LLC, and ElSharif, LLC; and (5) interest in Chicago Title Land Trust Number 1113203 (collectively, "Additional Assets"). Ex. Vol. 6 at 122–24.¹ Most of these entities owned real estate or operated businesses associated with adult entertainment venues in the Chicago region.²

[5] On December 5, 2019, the probate court held a hearing to determine ownership of certain bank accounts related to Seifs businesses. Abed attended the probate hearing but made no claim to Seif's assets.

[6] During the estate administration, the estate paid bills associated with Seif's property and businesses as it was able. Scott Wheaton, an attorney and certified public accountant for all Seifs businesses since 2017, advised the personal representatives about certain financial and tax matters related to Seifs assets. The period for making claims against the estate closed on June 25, 2020.³ Sometime thereafter, the estate sold the Shannon Bridge lot.

[7] Then, in March and April 2021, Abed recorded quitclaim deeds showing Seif (individually or on behalf of Samirah Realty, LLC) transferred ownership of the Indiana Real Estate to Abed in June 2019, prior to Seifs death. In April 2021, Andrea received notice through her attorney in Illinois that Abed was claiming ownership of some of Seif's assets in an Illinois court case. The estate had listed the Killarney residence for sale for $1.59 million but took it off the market after learning the estate was no longer the owner of record.

[8] On May 11, 2021, Andrea and Surayyah, as co-personal representatives of the estate, and Samirah Realty, LLC (collectively, "ElSharif") brought an action in the Lake Superior Court to quiet title to the Indiana Real Estate and for declaratory judgment that the quitclaim deeds Abed recorded were void. ElSharif also sought declaratory judgment regarding the ownership of the Seif, LLC membership interests.

[9] In the six-count complaint, ElSharif alleged Abed had created and forged Seif's signature on documents purporting to transfer ownership of the Indiana Real Estate and all interest in Seif, LLC, from Seif to Abed on June 3, 2019. ElSharif attached to the complaint the quitclaim deeds recorded by Abed, which showed Seif allegedly signed the documents on June 3 in front of a notary in Minnesota. ElSharif alleged Seif was in Indiana and Illinois on June 3, the notary's commission had not begun by that date, the notary stamp used was not created until after Seifs death, and Seif did not disclose or discuss any such transfers with his estate planning attorney or business accountant prior to his death. In Counts 4 through 6, ElSharif alleged Abed committed the crime of forgery⁴ and sought treble damages, plus attorney fees and expenses, un- der the Indiana Crime Victims Relief Act ("CVRA").⁵

[10] On September 9, 2021, Abed filed a response, counterclaims, and jury demand. Abed denied generally the allegations of the complaint. In Counterclaim 1, Abed alleged he possessed an unrecorded quitclaim deed giving him ownership of the Shannon Bridge lot. He sought damages arising from its sale. In Counterclaim 2, Abed sought a declaratory judgment that he was the owner of all Seifs assets. Abed attached to the response a May 30, 2019, agreement between Seif and Abed giving Abed the option to purchase Seifs assets and a receipt for one dollar consideration for the option. In the response, Abed demanded "trial by jury upon all issues triable to a jury." Appellant’s App. Vol. 2 at 217.

[11] In March 2022, while this action was pending, Abed attempted to exercise control over the Indiana Real Estate by entering the Killarney residence and trying to lease the Summer Street property. El-Sharif moved for a temporary restraining order and preliminary injunction prohibiting Abed or anyone acting on his behalf from accessing or interfering with the Indiana Real Estate. Following a hearing, the trial court issued an order barring Abed and "all friends, family members, and confederates" of Abed from entering or holding themselves out as the owner of the properties. Appellant's App. Vol. 3 at 67. The order also barred either party from listing, selling, or leasing the Indiana Real Estate unless the parties agreed.

[12] ElSharif moved to strike Abed’s jury demand arguing the case sounded in equity. ElSharif also moved to amend its complaint to add Count 7, in which it requested a declaratory judgment that any other documents purporting to transfer Seif's assets to Abed were void as forgeries and the estate was the rightful owner. ElSharif alleged Abed forged additional transfer documents on June 3 as part of the same transaction in which Seif purportedly transferred the Indiana Real Estate and Seif, LLC interests to Abed. In Count 7, ElSharif also sought preliminary and permanent injunctions enjoining Abed or any associates from asserting any rights or interests in Seif's assets. The trial court granted both the motion to strike the jury demand and the motion to amend the complaint. Abed then filed an amended counterclaim, and ElSharif filed an amended answer.

[13] On October 14, 2022, Abed filed a pro se motion for the recusal of Judge Bruce Parent arguing the judge expressed "personal bias and prejudice" and could no longer hear the case "in a fair and impartial manner." Id. at 112. The trial court denied the motion to recuse on November 16.

[14] The case proceeded to a bench trial, but not without substantial delay. Abed removed the case to federal court in the Northern District of Indiana three times in 2022. Each time the district court remanded the case to state court because removal was untimely.⁶ In late 2022, Abed moved for a stay pending the resolution of a potential criminal case, which the trial court also denied. In January 2023, one day prior to a scheduled trial date, Abed filed for Chapter 13 bankruptcy in Minnesota, resulting in an automatic stay. In March, again the day before a scheduled trial date, Abed filed for Chapter 7 bankruptcy in Illinois, causing the trial court to cancel the trial. Throughout 2022 and 2023, Abed filed numerous motions to stay for various medical reasons including an ankle injury.

[15] The trial court held a bench trial over two days on April 21 and 28, 2023. On the first day, Abed was not present but appeared by recently retained counsel. At the outset, Abed’s counsel moved for a continuance because his client and witnesses were unable to attend. After summarizing the various delays, the trial court denied the motion, stating: "Unfortunately, it’s time for this one to go." Tr. Vol. 2 at 4. Later that morning, the trial court recessed to accommodate Abed’s counsel’s hearings in other courts. The trial court also allowed Abed to cross-examine a witness beyond the scope of direct testimony for efficiency, stating, "And the truth is, do I want him to call [the witness] back later this afternoon? Let’s get [the witness] done so he can go." Id. at 31. When it became apparent the trial could not be concluded in one day as planned, the trial court continued the trial until the next Friday.

[16] On day two, the trial court began the day stating, "Lawyers, we gotta have it done today. I mean, I don’t have another day for you. We gotta squeeze it in. You asked for a day. I’m giving you a day plus. We need to get this...