The Honorable Albert R. Green Judge Presiding Appeal from the Circuit Court of Cook County No. 95 CH 11594
The opinion of the court was delivered by: Justice Cousins
The plaintiffs, certain beneficiaries of a trust, brought suit alleging various breaches of fiduciary duty by the trustees and requesting removal of the trustees, an accounting, reimbursement to the trust for improper expenditures, and the setting aside of a trust amendment alleged to have been procured through undue influence.
After allowing two amendments to the complaint, the trial court dismissed these claims with prejudice. However, the court granted the plaintiffs' motion to file another amended complaint incorporating only one of the four counts of the previous complaint. It later dismissed this third amended complaint on the grounds that it was premature.
The plaintiffs appeal the dismissal of the third amended complaint as well as the dismissal of the first three counts of the second amended complaint. The defendants filed motions to dismiss the appeal for lack of jurisdiction. We took the appeal together with the motions challenging jurisdiction.
The defendants argue that this court does not have jurisdiction to hear the plaintiffs' appeal of the second amended complaint because: (1) the plaintiffs did not appeal within the 30-day limit set out in Rule 303(a) (155 Ill. 2d R. 303(a)); (2) plaintiffs' motion to amend was not a posttrial motion capable of extending this deadline under Rule 303(a); and (3) the third amended complaint did not preserve any of the other counts for appeal.
The plaintiffs argue in their appeal that the trial court erred in: (1) dismissing the third amended complaint as premature; (2) not allowing the plaintiffs to verify the third amended complaint when they had inadvertently forgotten to do so; (3) dismissing the second amended complaint's count for undue influence on the grounds that it was not adequately pled; (4) dismissing the count alleging that the defendants breached their fiduciary duty in not providing accountings on the grounds that no demand for an accounting had been pled; and (5) dismissing the count for breach of fiduciary duty for allowing an improper trust amendment on the grounds that the amendment was in fact proper.
This case concerns the administration of a trust created by Emma Corsi in 1984, the year after her husband Harry died. The trust was prepared by Paul Schreiber. Mr. Schreiber and Marco Corsi, the son of Emma's nephew Secondo, were named as co-trustees. Both are defendants in this action.
Under the terms of the trust, upon Emma's death the trust property was to be divided into 14 equal shares. One share was to go to Marco, one was to go to Secondo, one was to go to the living descendants of Harry's brother Tito, and the remaining shares were to go to other relatives.
Shortly after Harry's death, Emma, then 84 years old, went to live with Secondo and his wife Leda. In 1985, she executed an amendment to the trust. This amendment provided that any real property owned by the trust was to go to Secondo and Leda. The plaintiffs allege that Marco, Secondo and Leda procured this amendment by undue influence. In 1988, Emma moved to a nursing home where she died a year later.
The plaintiffs are the living descendants of Harry's brother Tito. They allege that Marco and Mr. Schreiber did not tender annual accountings of the trust as required under state law and the trust's own terms. They also allege an improper disbursement from the trust as follows: Emma's will provided that taxes and expenses connected with her death were to be paid from her estate rather than the trust, so long as her estate had sufficient assets. According to the plaintiffs, the co-trustees paid over $200,000 in estate expenses from the trust when adequate funds were available in the probate estate. It is alleged that Marco's parents, Leda and Secondo, as Emma's heirs, stood to gain from this improper disbursement. Marco maintains that he has repaid the trust for any improper expenditure.
In 1995, the plaintiffs filed an action based on breach of fiduciary duty for an accounting, removal of the trustees and other relief. The co-trustees then tendered an accounting, which the plaintiffs consistently have held to be inadequate. The defendants filed a section 2-615 motion to dismiss. 735 ILCS 5/2-615 (West 1994). The trial court granted the plaintiffs leave to file an amended complaint. The defendants filed a motion to dismiss the amended complaint. The court granted the motion.
On November 7, 1996, the plaintiffs filed a second amended complaint. The first count of this complaint sought to have the 1985 trust amendment set aside because of undue influence. The second count alleged a breach of fiduciary duty by the trustees in not providing accountings and making the improper disbursement. The third count alleged that the trustees breached fiduciary duty by allowing the 1985 trust amendment. The fourth count sought an accounting, removal of the trustees and reimbursement.
On March 13, 1997, the trial court dismissed the second amended complaint, with prejudice, pursuant to a motion filed by the defendants under section 2-615. 735 ILCS 5/2-615 (West 1994). The trial court included in the order language, generally used under Supreme Court Rule 304(a) to certify partial final orders for immediate appeal, that there ...