Court of Appeals of Illinois, First District, First Division
In re ESTATE OF ERLA FEINBERG, Deceased (Michele Trull, Plaintiff-Appellant and Cross-Appellee,
Leila Taylor, Marshall Taylor and Michael Feinberg, Defendants-Appellees and Cross-Appellants). FIFTH THIRD BANK, as Trustee under the Trusts of Erla Feinberg and Max Feinberg, Petitioner-Appellant,
LEILA R. TAYLOR, Individually and as Coexecutor of the Will of Erla Feinberg, Deceased; MICHAEL B. FEINBERG, Individually and as Coexecutor of the Will of Erla Feinberg, Deceased; and MARSHALL TAYLOR, Respondents-Appellees
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Appeal from the Circuit Court of Cook County. Nos. 04 L 7195, 04 P 5093, 05 P 0173. Honorable Susan M. Coleman, Judge Presiding.
Affirmed in part and reversed in part; cause remanded.
In a complex set of actions arising from the distribution of trust assets to the settlors' descendants, the trial court's order approving a distribution plan proposed by the bank acting as the trustee under the trusts at issue was affirmed, but the cause was remanded for further proceedings in accord with the reversal of the trial court's determination that a small amount of assets had been misappropriated from an account that belonged to one settlor and that a condominium belonging to that settlor was not subject to recovery.
For Michele Trull nee Feinberg, APPELLANT/CROSS-APPELLEE: Christopher Langone, Ithaca, NY; Ethan E. Trull, Highland Park, IL.
For Fifth Third Bank, APPELLANT: John D. Burke, Douglas A. Henning, Richard C. Johnson, Erin M. Eckhoff, Nicholas A. Castro, Ice Miller, LLP, Chicago, IL.
For Leila Taylor and Marshall Taylor, APPELLEES/CROSS-APPELLANTS: Robert H. Lang, Thompson Coburn, LLP, Chicago, IL.
For Michael Feinberg, APPELLEE: James E. Dahl, William D. Nagel, Dahl & Bonadies, LLC, Chicago, IL.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Hoffman and Delort concurred in the judgment and opinion.
[¶1] Following a bench trial in the circuit court of Cook County, the trial court entered a May 16, 2011 judgment, pursuant to a citation to recover assets filed by petitioner Fifth Third Bank as trustee of the Erla Feinberg Trust, against respondent Michael Feinberg in the amount of $788,957 and against respondents Leila and Marshall Taylor in the amount of $1,911,107. The May 16, 2011 order also found that Fifth Third Bank's recovery of assets to the Erla Feinberg Trust was an adequate remedy to the relief sought by plaintiff Michele Trull in an action alleging misappropriation of funds against defendants Michael Feinberg, Leila Taylor and Marshall Taylor. On August 10, 2012, the trial court entered an order approving Fifth Third Bank's proposed plan of distribution of the assets in the Max Feinberg
Trust and the Erla Feinberg Trust. On appeal, Leila and Marshall Taylor challenge the trial court's May 16, 2011 order, which ordered them to return $1,911,107 to the Erla Feinberg Trust, and they challenge the trial court's August 10, 2012 order granting Fifth Third Bank's proposed plan of distribution of the assets. Michele Trull also appeals the May 16, 2011 and August 10, 2012 orders. On cross-appeal, Fifth Third Bank argues that the trial court erred in denying its request for prejudgment interest on the recovered assets. Michael Feinberg does not appeal the trial court's May 16, 2011 ruling, which ordered him to return $788,957 to the Erla Feinberg Trust. For the following reasons, we affirm in part and reverse in part the judgment of the circuit court of Cook County.
[¶3] This case involves an extremely complex factual and procedural background, and thus, our recitation of the facts is limited to those that are pertinent to our resolution of this appeal. On December 4, 1986, Max Feinberg (Max) died. Max was survived by his wife, Erla Feinberg (Erla), and their two adult children, Michael Feinberg (Michael) and Leila Taylor (Leila). Michael is married to Marcy Feinberg (Marcy). Michael has two adult children from his prior marriage: Michele Trull (Michele) and Aron Feinberg (Aron). Leila is married to Marshall Taylor (Marshall) (collectively, the Taylors). The Taylors, who have lived in California since 1969, have three adult children: Jon Taylor (Jon), Aimee Taylor Severe (Aimee) and Lisa Taylor Schroeder (Lisa).
[¶4] At the time of Max's death in 1986, Max and Erla each had a trust (collectively, the Feinberg Trusts), and their estate plans were mirror images of one another. The Max Feinberg Trust (the Max Trust) provided that upon Max's death and after payment of expenses, the trustee shall allocate the trust corpus into two separate trusts for tax reasons--" Trust A" and " Trust B." Both Trust A and Trust B were designed to provide for the " support, medical care and welfare" of Erla during her lifetime. The Max Trust provided that upon the death of Erla, the assets of Trust A and Trust B would be distributed amongst their children and grandchildren. The Max Trust also granted Erla a limited lifetime power of appointment to distribute the assets of Trust B to her descendants. Both the Max Trust and the Erla Feinberg Trust (the Erla Trust) contained what the parties refer to as the " Jewish clause," which stated that any descendant, other than Michael and Leila, who married outside of the Jewish faith would be deemed deceased for the purposes of the trust instrument as of the date of the marriage. In September 1984, Max and Erla executed a first amendment to the Feinberg Trusts, which amended the Jewish clause to permit a non-Jewish spouse to convert to Judaism within one year of the marriage.
[¶5] On June 29, 1994, Erla signed a durable power of attorney naming her children, Michael and Leila, as her agents.
[¶6] On July 23, 1997, Erla exercised her lifetime power of appointment (the 1997 appointment) over the Max Trust, directing that, upon her death, Michael and Leila and any of her grandchildren who were not deemed deceased under the Max Trust, shall receive $250,000 from the Max Trust. The 1997 appointment specified that " [i]f any of my grandchildren are deemed deceased then the [$250,000 share] shall be paid equally to the parents of that grandchild." On that same day, July 23, 1997,
Erla executed a second amendment to the Erla Trust (the second amendment), which deleted the Jewish clause from her own trust and directed that, immediately upon her death, a sum of $100,000 be distributed to each of her five grandchildren--Michele, Aron, Jon, Aimee and Lisa.
[¶7] On October 1, 2003, Erla died. By the time of Erla's death, all five grandchildren had been married for more than one year. Only Marshall and Leila's son, Jon, met the condition of the Jewish clause and was entitled to receive $250,000 from the Max Trust, as directed by Erla's 1997 appointment.
[¶8] In 2004, Michele filed a lawsuit against Michael and the Taylors in the law division of the circuit court of Cook County, alleging that they misappropriated millions of dollars in assets from Max's and Erla's estates (case No. 04 L 7195). In the third amended complaint, Michele alleged counts for intentional interference with testamentary expectancy (counts I and II), conspiracy by the Taylors and Michael to intentionally interfere with testamentary expectancy (count III), and requested that a constructive trust be imposed against Michael and the Taylors for assets and funds which they had misappropriated from Erla and from the estates of Max and Erla (count IV). Michael and the Taylors sought to dismiss the lawsuit on the basis that Michele had no interest in Max's estate because she was deemed deceased under the provision of the Jewish clause in the Max Trust. The trial court held that the Jewish clause was invalid on public policy grounds. On June 30, 2008, in an interlocutory appeal, this court affirmed the trial court and held that the Jewish clause in the Max Trust was contrary to public policy and, thus, unenforceable. In re Estate of Feinberg, 383 Ill.App.3d 992, 891 N.E.2d 549, 322 Ill.Dec. 534 (2008). On September 24, 2009, our supreme court reversed the rulings of the appellate and trial courts, holding that Max's estate plan, when assessed in conjunction with Erla's directions for distribution under the 1997 appointment, did not violate public policy. In re Estate of Feinberg, 235 Ill.2d 256, 919 N.E.2d 888, 335 Ill.Dec. 863 (2009). Specifically, the supreme court found the Jewish clause valid.
[¶9] On May 22, 2007, while the interlocutory appeal was pending, Fifth Third Bank (the Bank), as the corporate trustee of the Feinberg Trusts, filed a petition for citation to recover assets (the recovery citation) against Michael and Leila, as coexecutors of Erla's estate, and against Marshall. The recovery citation sought to recover assets and property which belonged to the corpus of the Feinberg Trusts and which were allegedly misappropriated by Michael and the Taylors: funds withdrawn from Erla's various convenience bank accounts (count I); funds to maintain and improve Erla's condominiums (count II); funds taken from a Vanguard investment account (count III); and cash belonging to Erla in a safe deposit box (count IV). On August 28, 2009, the trial court granted Michele's motion for joinder to the Bank's recovery citation. After joining as a party to the recovery citation, Michele sought leave of court to amend the recovery citation to include the recovery of Erla's Florida condominium, funds taken from Erla's " gifting program," and a claim for punitive damages. The trial court denied Michele leave to amend the recovery citation to include a claim for punitive damages, but granted her leave to amend the recovery
citation to include Erla's Florida condominium and funds taken from Erla's " gifting program."
[¶10] On remand from the supreme court's 2009 ruling, on February 8, 2010, the Taylors' son, Jon, as a beneficiary of the Feinberg Trusts, filed a motion for summary judgment on the recovery citation. He argued that the 1997 appointment and the second amendment were invalid because they were drafted by his nonattorney father, Marshall. On April 14, 2010, the trial court denied Jon's motion for summary judgment on the recovery citation.
[¶11] Prior to trial on the recovery citation and Michele's tort action against Michael and the Taylors, the trial court determined that a fiduciary relationship existed as a matter of law between Michael, Leila and Erla as of June 29, 1994, when Erla signed a durable power of attorney naming both Michael and Leila as her agents. From May 24, 2010 to June 3, 2010, a bench trial was held to resolve the complaint following resolution of the interlocutory appeal. The court heard the testimony of the Taylors; Michael; Marcy; Michele; the Bank's expert witness, William Thullen (Thullen); Michele's expert witness, Scott Stringer (Stringer); the Bank's regional fiduciary executive, David Frye (Frye); and the Bank's portfolio manager, Walter Tizura (Tizura). At trial, the trial court granted a motion for a directed finding in favor of the Taylors and Michael on Michele's claim of conspiracy to intentionally interfere with testamentary expectancy (count III).
[¶12] On May 16, 2011, the trial court entered an order granting the recovery citation, filed by the Bank, which stated that the Taylors were deemed to hold $1,911,107 plus reasonable attorney fees and costs in " constructive trust" for the benefit of the Erla Trust, and that Michael was deemed to hold in " constructive trust" $788,957 plus reasonable attorney fees and costs for the benefit of the Erla Trust. The trial court found that the Taylors and Michael, as fiduciaries to Erla, failed to rebut the presumption that the transactions by which they benefitted were the product of fraud or undue influence over Erla. However, the court found that Erla's annual gifting program was " wisely implemented to take advantage of the annual gift tax exclusions" and that Erla was aware of the program. The court further found that evidence at trial was insufficient to subject Erla's Florida condominium to recovery. The trial court then denied the Bank's request for prejudgment interest on the recovered assets. The trial court further found that, based on its findings with regard to the recovery citation, the remaining counts of Michele's tort action alleging intentional interference with testamentary expectancy need not proceed as they were duplicative of the remedy sought in the recovery citation filed by the Bank. The trial court then allowed Michele to file a separate petition for attorney fees.
[¶13] On June 14, 2011, Michele filed a petition for attorney fees. On June 28, 2011, the trial court denied the Taylors' motion to reconsider its May 16, 2011 order, and clarified that the May 16, 2011 ruling was final and appealable pursuant to
Illinois Supreme Court Rule 304(b)(1) (eff. Jan. 1, 2006).
[¶14] On July 27, 2011, the Taylors filed a notice of appeal, which appealed the trial court's May 16, 2011 order and June 28, 2011 ruling denying the Taylors' motion to reconsider (appeal No. 1-11-2258). On that same day, July 27, 2011, Michele filed a notice of appeal, which appealed the trial court's May 16, 2011 order (appeal No. 1-11-2219). On August 3, 2011, the Bank filed a notice of cross-appeal, which appealed the portion of the May 16, 2011 order that denied its request for prejudgment interest on the recovered assets. Michael does not appeal the trial court's May 16, 2011 ruling which ordered him to return $788,957 to the Erla Trust.
[¶15] On August 19, 2011, the Bank filed a petition for instructions, seeking instructions from the trial court on how the assets of the Feinberg Trusts should be distributed. The petition for instructions proposed that the trial court resolve certain issues, including whether the 1997 appointment and the second amendment to the Erla Trust were valid, before any trust assets would be distributed. On November 30, 2011, the Taylors filed a response to the Bank's petition for instructions, arguing that the 1997 appointment and the second amendment to the Erla Trust were invalid. On January 11, 2012, the trial court denied the petition for instructions, finding that the " time for contests regarding the validity of the testamentary documents has long since passed." The trial court found that our supreme court's 2009 ruling in this case was law of the case, and that the 1997 appointment and the second amendment were not the subject of contests before the supreme court and " they cannot be the subject of a contest now." See In re Estate of Feinberg, 235 Ill.2d 256, 919 N.E.2d 888, 335 Ill.Dec. 863.
[¶16] On March 9, 2012, the trial court entered an order granting the Bank, as trustee of the Erla Trust, a total of $540,000 in attorney fees, to be imposed against Michael ($270,000) and the Taylors ($270,000) equally. On March 26, 2012, the trial court entered an order, nunc pro tunc March 9, 2012, clarifying that the total amount of $540,000 in attorney fees awarded to the Bank as trustee of the Erla Trust shall be apportioned severally between Michael in the amount of $270,000 and the Taylors in the amount of $270,000. The order specifically stated that there was " no just reason to delay enforcement or appeal or both pursuant to Rule 304(a)." On May 17, 2012, the trial court entered an order awarding Michele $100,000 in attorney fees from the amounts recovered pursuant to the recovery citation.
[¶17] On May 25, 2012, the Bank filed a petition to approve its proposed plan of distribution of the assets (distribution plan), which proposed that, pursuant to the 1997 appointment, the $250,000 share to each of the four grandchildren (Michele, Aron, Aimee and Lisa) who are deemed deceased under the Max Trust, for a total of $1 million, be split equally between Michael ($500,000) and Leila ($500,000). The distribution plan also proposed that, pursuant to the second amendment to the Erla Trust, $100,000 be distributed to each of the five grandchildren (Michele, Aron, Jon, Aimee and Lisa). The distribution plan proposed that, per the terms of the Erla Trust, any remaining assets in the Erla Trust would be split into individual trusts for the beneficiaries as follows: Michael Trust 25%; Leila Trust 25%; Michele
Trust 12.5%; Aron Trust 12.5%; Jon Trust 8.33%; Aimee Trust 8.33%; and Lisa Trust 8.33%. The distribution plan also recommended that the funds held in trust for Michael and Leila be distributed to them outright. It further proposed that funds distributed to Michael as a beneficiary of the Feinberg Trusts be credited against his $788,957 judgment in this case until it is paid in full. On August 10, 2012, the trial court approved the distribution plan and ordered the Bank to distribute the funds from the Feinberg Trusts accordingly. The trial court further ordered the Bank to retain sufficient funds in the Feinberg Trusts to cover Leila's and Michael's petitions for fees as coexecutors of Max's and Erla's estates. The August 10, 2012 order included Rule 304(a) language that there was " no just reason to delay enforcement, appeal or both."
[¶18] On August 20, 2012, Michele filed a notice of appeal, which appealed the trial court's August 10, 2012 order (appeal No. 1-12-2476). On September 6, 2012, Leila, individually and as coexecutor of Erla's estate, filed a notice of appeal to the trial court's August 10, 2012 order (appeal No. 1-12-2715). On October 17, 2012, this court consolidated the four appeals (appeal Nos. 1-11-2219; 1-11-2258; 1-12-2476; and 1-12-2715).
[¶19] On October 30, 2012, upon petition for fees filed by Leila and Michael as coexecutors of Max's and Erla's estates, the trial court ordered the Bank to pay Michael $92,237.12 in fees from the Erla Trust for work performed as coexecutor of Max's and Erla's estates. On December 19, 2012, the trial court ordered the Bank to pay Leila $48,890.07 in fees from the Erla Trust and $16,581.18 from the Max Trust for work performed as coexecutor of Max's and Erla's estates.
[¶21] This consolidated appeal by the Taylors and Michele, as well as a cross-appeal filed by the Bank, stem from the trial court's May 16, 2011 order. The appeal by the Taylors and Michele also challenges the trial court's August 10, 2012 order. This court has proper jurisdiction over this consolidated appeal and cross-appeal pursuant to Supreme Court Rule 304(b)(1) (eff. Jan. 1, 2006), which pertains to final judgments and orders " entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party." For ease of understanding, we address each party's arguments in turn. The facts and arguments are many.
[¶22] On appeal, the Taylors argue that: (1) Michele lacks standing and is not a proper beneficiary to the Erla Trust; (2) the distribution plan was invalid because it was based on a void trust agreement; (3) evidence at trial did not establish that Marshall's fiduciary relationship with Erla began in 1986; (4) funds taken from the Vanguard account should not have been returned to the Erla Trust; (5) the trial court erred in failing to apply a " missing evidence" presumption against Michael; and (6) the trial court erred in finding that the Taylors misappropriated $18,770 from a Morgan Stanley account.
[¶23] As an initial matter, we address the Taylors' argument that Michele lacks standing to pursue a claim as well as this appeal and is not a proper beneficiary to the Erla Trust. The basis for their argument is that the second amendment to the Erla Trust, which deleted the Jewish clause, was void as contrary to public policy because it was drafted by a nonlawyer, namely, Marshall. The thrust of the Taylors' argument is that, if the second amendment was void, the Jewish clause in the Erla Trust would again become effective,
thus deeming Michele deceased under the Erla Trust and barring her claims against the Taylors in their entirety. The Taylors point to section 2BB of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/2BB (West 2008)), which provides that a nonlawyer who drafts a trust document is guilty of a Class A misdemeanor. The Taylors also argue that the 1997 appointment, which was also drafted by Marshall, was void for the same reason.
[¶24] We find that the Taylors' challenge to the validity of the second amendment and the 1997 appointment is essentially a trust contest. Section 8-1(f) of the Probate Act of 1975 (Probate Act) states that " [a]n action to set aside or contest the validity of a revocable inter vivos trust agreement or declaration of trust to which a legacy is provided by the settlor's will which is admitted to probate shall be commenced within and not after the time to contest the validity of a will as provided in section (a) of this [s]ection and [s]ection 13-223 of the Code of Civil Procedure." 755 ILCS 5/8-1(f) (West 2008). Section 8-1(a) of the Probate Act provides that an action to contest the validity of a will must be filed within six months after the admission of the will to probate. 755 ILCS 5/8-1(a) (West 2008); 735 ILCS 5/13-223 (West 2008) (an action to contest the validity of a trust agreement shall commence within the time to contest the validity of a will under the Probate Act). The six-month limitation period is a jurisdictional limitation barring any claim to contest the validity of a will or trust filed beyond that period. In re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 20. On September 8, 2004, Erla's will was admitted to probate (case No. 04 P 5093) and Max's will was admitted to probate on January 24, 2005 (case No. 05 P 0173). Thus, any action contesting the validity of the second amendment or the 1997 appointment was required to have been filed within six months--by March 8, 2005 or July 24, 2005, at the latest. However, no party contested these trust instruments within the appropriate time period. As the trial court correctly noted in its April 10, 2010 ruling denying Jon's motion for summary judgment on the recovery citation and the court's January 11, 2012 order denying the Bank's petition for instructions, this was a " trust contest that is about five years too late." The court also noted that the " time for contests regarding the testamentary documents has long since passed." Accordingly, the Taylors' challenges to the validity of the second amendment and the 1997 appointment are untimely.
[¶25] Nonetheless, the Taylors argue that they do not contest the trust instruments but, rather, request this court to construe the second amendment as void against public policy because it was drafted by Marshall, a nonlawyer, in violation of section 2BB of the Consumer Fraud Act. See 815 ILCS 505/2BB (West 2008). For support, they cite Landheer v. Landheer, 383 Ill.App.3d 317, 891 N.E.2d 975, 322 Ill.Dec. 684 (2008), and Herlehy v. Mary V. Bistersky Trust, 407 Ill.App.3d 878, 942 N.E.2d 23, 347 Ill.Dec. 190 (2010).
[¶26] Our supreme court has held that the General Assembly did not intend the Consumer Fraud Act to apply to conduct which takes place outside of Illinois. See Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill.2d 100, 185, 835 N.E.2d 801, 296 Ill.Dec. 448 (2005). At trial, Marshall testified that, after consulting an attorney, Marshall drafted both the second amendment and the 1997 appointment in California and that Erla signed these documents while visiting the Taylors' home in California. None of the circumstances surrounding the drafting or signing
of the documents occurred in Illinois and, thus, the Consumer Fraud Act does not apply in this case. We further find the Taylors' cited cases, Landheer and Herlehy, to be factually distinguishable, where the conduct which gave rise to the holdings in those cases took place in Illinois and, thus, triggered the applicability of the Consumer Fraud Act.
[¶27] Moreover, we find that the law-of-the-case doctrine bars the Taylors' challenge to the validity of the 1997 appointment. Generally, the law-of-the-case doctrine prohibits reconsideration of issues which have been decided in a prior appeal. In re Christopher K., 217 Ill.2d 348, 365, 841 N.E.2d 945, 299 Ill.Dec. 213 (2005). " The rule is that no question which was raised or could have been raised in a prior appeal on the merits can be urged on subsequent appeal and those not raised are considered waived." (Internal quotation marks omitted.) Preferred Personnel Services, Inc. v. Meltzer, Purtill & Stelle, LLC, 387 Ill.App.3d 933, 947, 902 N.E.2d 146, 327 Ill.Dec. 391 (2009). Where there are no material changes in the facts since the prior appeal, such issues may not be relitigated in the trial court or reexamined in a second appeal. In re Christopher K., 217 Ill.2d at 365. The purpose behind the law-of-the-case doctrine is to " protect  settled expectations of the parties, ensure  uniformity of decisions, maintain  consistency during the course of a single case, effectuate  proper administration of justice, and bring  litigation to an end." Long v. Elborno, 397 Ill.App.3d 982, 989, 922 N.E.2d 555, 337 Ill.Dec. 432 (2010). Here, our supreme court's previous ruling in this case explicitly relied upon the existence and validity of the 1997 appointment in reaching its decision regarding the terms of the Max Trust. See In re Estate of Feinberg, 235 Ill.2d at 281. At no time did the Taylors or any other party assert while the case was under consideration in our supreme court, that the 1997 appointment was void. Specifically, there were no material changes in the facts of this case since the prior appeal. To reconsider the validity of the 1997 appointment at this juncture in the litigation after our supreme court had previously relied upon its validity would violate the settled expectations of the parties, undermine consistency in this case, and create an erroneous example for other cases. Therefore, we hold that Michele has standing to pursue her claims as a proper beneficiary of the Erla Trust.
[¶28] Turning to the merits of the case, we examine the Taylors' challenge to the distribution plan, which was proposed by the Bank and approved by the trial court on August 10, 2012. To the extent that the Taylors argue that the distribution plan was invalid because it was based on the invalidity of the second amendment and the 1997 appointment, this argument is defeated based on our holding rejecting the Taylors' challenges to the validity of these trust instruments. Likewise, we reject the Taylors' assertion that allowing the second amendment and the 1997 appointment to stand would be inconsistent with the trial court's May 16, 2011 order finding another document prepared by Marshall--a " gift document" --to be invalid. The " gift document" was not a trust instrument, but instead was a document drafted by Marshall and signed by Erla which purportedly gifted Leila with the funds of Erla's investment account.
[¶29] In the alternative, the Taylors, without citing any legal authority, challenge the distribution plan on the basis that it did not strictly follow all of the terms of the 1997 appointment. The 1997 appointment specified that, upon Erla's death, Michael and Leila and any grandchildren
who were not deemed deceased under the Max Trust shall receive $250,000, and that the $250,000 share of each grandchild who was deemed deceased under the Max Trust " shall be paid equally to the parents of that grandchild." (Emphasis added.) The distribution plan called for the $250,000 share of each " deceased" grandchild to be split equally between Michael and Leila. According to the Taylors, Marshall (father of Lisa and Aimee) and Marion (mother of Michele and Aron), who are parents of a " deceased" grandchild, should also each receive $250,000. Further, the Taylors argue in the alternative, without citing any legal authority and without any citation to the record, that the " 5X5 language" in the Max Trust was not strictly followed in the distribution plan. We find these alternative arguments to be forfeited. See In re Marriage of Wassom, 352 Ill.App.3d 327, 332-33, 815 N.E.2d 1251, 287 Ill.Dec. 448 (2004) ( failure to cite legal authority in a party's brief forfeits the issue for review); Ill. S.Ct. R. 341(h)(7) (eff. Sept. 1, 2006) (failure to cite to pages to the record relied upon in support of the contentions in a party's brief forfeits the arguments for review). Forfeiture aside, paragraph 3.3(c) of the Max Trust empowered Erla to distribute the principal of the Max Trust to his " descendants." We find that Marshall and Marion were not descendants of Max and thus were ineligible to take under the 1997 appointment. Thus, the trial court did not err in approving the Bank's distribution plan to allow only Michael and Leila, as both descendants of Max and parents to Max's " deceased" grandchildren, to receive equal shares of the " deceased" grandchildren's inheritance.
[¶30] We next determine whether the trial court erred in finding that Marshall's fiduciary relationship with Erla began in 1986, which we review under a manifest weight of the evidence standard. See Kurtz v. Solomon, 275 Ill.App.3d 643, 645, 656 N.E.2d 184, 212 Ill.Dec. 31 (1995). A trial court's finding is not against the manifest weight of the evidence unless an opposite conclusion is clearly evident. In re Estate of Wilson, 238 Ill.2d 519, 570, 939 N.E.2d 426, 345 Ill.Dec. 583 (2010). If the record contains any evidence to support the trial court's judgment, the judgment should be affirmed. Id.
[¶31] The Bank's recovery citation alleged that a fiduciary relationship existed between Erla and each defendant, Marshall, Leila and Michael; consequently, transactions that occurred after the formation of the fiduciary relationships in which the defendants benefitted were presumed to be fraudulent. Prior to trial, the trial court determined that a fiduciary relationship existed as a matter of law between Erla and Michael and Erla and Leila, as a result of a 1994 durable power of attorney (1994 POA) which Erla signed naming them as her agents. At trial, Michael admitted that his fiduciary relationship with his mother, Erla, had existed since the death of his father, Max. Based on this evidence, the trial court found that Michael's fiduciary relationship with Erla had existed since the date of Max's death on December 4, 1986. As for Marshall, ...