Appeal from Circuit Court of Champaign County No. 10CH253 Honorable Michael Q. Jones, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Knecht
2011 Ill. App. (4th) 100750
PRESIDING JUSTICE KNECHT delivered the judgment of the court, with opinion.
Justices Pope and Cook concurred in the judgment and opinion.
¶ 1 In June 2010, plaintiff, Lisa A. Sanders, filed a two-count complaint against defendant, Carol K. Stasi, seeking (1) an accounting of the receipts, disbursements, and inventory of a testamentary trust and (2) the removal of defendant as trustee of that trust. In August 2010, the trial court granted defendant's motion for summary judgment, dismissing plaintiff's complaint with prejudice. Plaintiff appeals, arguing she is entitled to the requested accounting under section 11(a) of the Trusts and Trustees Act (Act) (760 ILCS 5/11(a) (West 2008)) and asserting summary judgment is inappropriate. Defendant responds plaintiff is not entitled to such an accounting. We reverse and remand.
¶ 3 In 2000, defendant's husband, Otto Stasi, died testate. A trust was created pursuant to his will. With respect to the trust, the will provided for three regular enumerated distributions of trust income. Namely, these payments were (1) $150 per week to defendant as trustee's fees; (2) $100 per month to Ruth Barnes "for so long as she is living"; and (3) the utilities, insurance, and taxes incurred by defendant in connection with her personal residence. Any further income was to be distributed, in relevant part, as follows:
"Any excess income not paid in satisfaction of [the enumerated disbursements] shall be distributed not less often than annually, one fourth to Ruth Barnes for so long as she is living; one fourth to Carol Stasi [(defendant)]; and one eighth each to Lisa Sanders [(plaintiff)], Jodie Stasi, Jamie Stasi, and James Stasi."
¶ 4 Defendant was named trustee, and the trust's corpus consisted of any of Otto Stasi's property not specifically bequeathed elsewhere in the will and, especially, certain commercial property and the income from that property.
¶ 5 In June 2010, plaintiff filed her two-count complaint. In count I, plaintiff alleged she was entitled to an accounting of the trust's receipts, disbursements, and inventory under section 11(a) of the Act (760 ILCS 5/11(a) (West 2008)). Count I alleged defendant had not provided plaintiff with such an accounting or any payments of the "excess income" from the trust. Accordingly, plaintiff sought the accounting to which she claimed she was entitled.
¶ 6 Plaintiff's allegations in count II were substantially the same as in count I. Plaintiff further alleged defendant's failure to provide plaintiff with annual accountings constituted a breach of her fiduciary duty. Plaintiff asked the trial court to remove defendant as trustee.
¶ 7 In July 2010, defendant filed a motion for summary judgment (see 735 ILCS 5/2-1005 (West 2008)) on both counts of the complaint. Defendant's motion stated (1) the trust did not earn income in excess of the disbursements enumerated in Otto Stasi's will as demonstrated by defendant's affidavit and other materials accompanying the motion and (2) such excess income was a prerequisite of plaintiff's entitlement to annual accountings. Defendant's motion was accompanied by defendant's affidavit, to which the trust's tax returns were attached. In her affidavit, defendant averred, in relevant part, (1) defendant had never paid herself more than she was entitled to receive under Otto Stasi's will and (2) the attached tax returns reflected all revenue and expenses of the trust.
¶ 8 In August 2010, the trial court granted defendant's motion for summary judgment. The court determined (1) under the relevant statute and will provisions, plaintiff was entitled to an accounting only if the trust generated income exceeding the amount of the required disbursements and (2) defendant's affidavit and the attached tax returns demonstrated there was no genuine issue of material fact with respect to whether the trust had excess income. Since there was no excess income, the court ...