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12/13/95 NORMAN J. BARRY v. EVELYN RAFACZ CARR AND

December 13, 1995

NORMAN J. BARRY, EXECUTOR OF THE ESTATE OF HENRY RAFACZ, DECEASED, AND EXECUTOR OF THE ESTATE OF EDWARD RAFACZ, DECEASED, PLAINTIFF-APPELLANT,
v.
EVELYN RAFACZ CARR AND MELANIE DENDOR, EXECUTOR OF THE ESTATE OF WALTER RAFACZ, DECEASED, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Albert Green, Judge Presiding.

The Honorable Justice Cerda, delivered the opinion of the court. Tully, J., concurs. Greiman, P.j., specially concurring.

The opinion of the court was delivered by: Cerda

The Honorable Justice CERDA, delivered the opinion of the court.

Plaintiff, Norman J. Barry, executor of the estate of Henry Rafacz, deceased, and executor of the estate of Edward Rafacz, deceased, appeals from the entry of summary judgment in favor of defendants, Melanie Dendor, executor of the estate of Walter Rafacz, deceased, and Evelyn Rafacz Carr. Plaintiff argues that (1) the trial court erred when it ruled that a judicial sale of property could not be ordered; (2) the trial court abused its discretion when it held that plaintiff's cross-motion for summary judgment was untimely; and (3) the trial court erred when it struck plaintiff's affidavit as conclusory. We affirm.

The issue in this case is whether a court in equity should have ordered a judicial sale of farmland held in two trusts because of a deadlock between the four beneficiaries.

Plaintiff sought a declaratory judgment that there existed a business management deadlock among four beneficiaries of two land trusts that defeated the objects of their business arrangement. Plaintiff also sought a judicial sale of all the farmland held by the two trusts.

On October 3, 1957, Andrew and Agnes Rafacz, set up a land trust into which they conveyed their real estate as part of an estate plan. Edward Rafacz, Walter Rafacz, Henry Rafacz and Evelyn Rafacz Carr were their children. During their lifetimes Andrew and Agnes conveyed to their children annually in equal amounts a percentage of the land trust equal in value to the annual exclusion for gift taxes. Upon Andrew's death in 1959 he bequeathed his interest in the land trust to the siblings in equal shares. Agnes died in 1978 leaving her estate in equal shares to the siblings.

There presently are two land trusts as a result of a conveyance to a bank to secure a loan. At the time that the amended complaint was filed in June 1994 the four beneficiaries were Evelyn Rafacz Carr; Norman J. Barry, executor of the estate of Edward Rafacz, deceased; Norman J. Barry, executor of the estate of Henry Rafacz, deceased; and Melanie Dendor, executor of the estate of Walter Rafacz, deceased.

The land trusts held two parcels of valuable farmland in Orland Park, Illinois. The first acres sold were in 1972 for a regional shopping center. In 1974 family members entered into an annexation agreement with the Village of Orland Park in which the farmland was rezoned for general business use.

The power of direction in the Heritage Pullman Bank & Trust Company land trust was held by a simple majority of the beneficiaries. The First National Bank of Evergreen Park land trust required unanimous consent of the beneficiaries to direct the land trustee. As a result the real estate in the Heritage land trust cannot be sold without the majority consent of the beneficiaries, and the real estate in the Evergreen land trust cannot be sold without unanimous consent of the beneficiaries.

The complaint further alleged that attorneys for Carr and Dendor informed plaintiff that their clients had no interest in selling the property. Plaintiff wished to sell the land held in the trusts in order to provide funds to the widows of Edward and Henry and to pay numerous claims filed against Henry's estate, which had no assets other than the 25% beneficial interest. The business object of selling the land at a profit has been frustrated by the refusal to sell. The position produced a business management stalemate that defeated the objects of the beneficiaries' business arrangement according to the complaint.

On June 7, 1994, the court ordered the parties to file any motions for summary judgment prior to August 4, 1994. On August 3, 1994, defendants filed a motion for summary judgment arguing that plaintiff had no right to a judicial sale. On September 1, 1994, plaintiff filed his response to defendants' motion for summary judgment and a cross-motion for summary judgment combined in the same document.

Plaintiff filed his affidavit, and he swore that he was an attorney who had personal knowledge of the matters asserted in the affidavit. He represented the Rafacz family members since 1955. His clients originally were the parents. Until mid-1985 he handled all land purchase and sale transactions where family members owned property jointly. The land trusts were created to hold and sell farmland that formerly was owned and farmed by Andrew and Agnes Rafacz. The land trusts were created by Andrew and Agnes in order to benefit their children.

Barry's affidavit stated that it was always the intention to hold and sell the property to a developer for a profit. All of the other property owned by the Rafacz family had been sold for commercial, office or residential development. At the time the parcels were annexed to Orland Park in 1974, the Rafacz family obtained more favorable zoning classifications in order to enhance the value of the property and to further their business purpose in selling it. The 17-acre parcel was zoned retail, and the 44-acre parcel was zoned planned office. ...


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