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The Raymond W. Pontarelli Trust v. Pontarelli

Court of Appeals of Illinois, First District

March 18, 2015

THE RAYMOND W. PONTARELLI TRUST, Under the Trust Authority Dated December 6, 1979, as Amended and Restated, by and Through its co-trustee, the Chicago Trust Company, N.A.; THE FLORENCE PONTARELLI 2011 REVOCABLE TRUST, Under the Trust Authority Dated July 21, 2011, as Amended by and Through one of its Co-trustees, Michel Pontarelli; and FLORENCE PONTARELLI, by Michel Pontarelli as the Holder of Her Power of Attorney, Plaintiffs and Counterdefendants-Appellees,
v.
MICHAEL PONTARELLI, VALERIE P. BURGESS, LOUISE COSMANO, PONTARELLI MANAGEMENT, LLC, an Illinois Limited Liability Company, Defendants and Counterplaintiffs-Appellants

Page 69

Appeal from the Circuit Court of Cook County. No. 11 CH 40647. The Honorable Kathleen M. Pantle, Judge, presiding.

FOR PLAINTIFFS AND COUNTERDEFENDANTS-APPELLEES: Ray J. Koenig, Eric Dorkin, MacKenzie Hyde, and Leslie Gutierrez, Clark Hill PLC, Clark Hill PLC.

FOR DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS: Stephen M. Komie, Komie and Associates, Chicago, IL.

JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Lavin and Mason concurred in the judgment and opinion.

OPINION

HYMAN, JUSTICE.

Page 70

[¶1] Defendants filed this interlocutory appeal from three orders, two of which involved the leasing of condominiums held in a trust and the disbursement of trust income. The third order denied defendants' motion to dismiss. The first two orders do not qualify as injunctions and, therefore, are not appealable. The third order does not purport to finally resolve any issue and is likewise not ripe for appeal. Hence, we dismiss defendants' appeals for lack of jurisdiction.

[¶2] This is not the first time we have dismissed for lack of jurisdiction an appeal filed by defendants' counsel in this matter. An appeal was similarly dismissed in In re Guardianship of Pontarelli, 2014 IL App. (1st) 122782-U, ¶ 11-12, appeal denied, 20 N.E.3d 1254, 386 Ill.Dec. 476 (Ill. 2014). Thus, in a short time, we have dismissed three frivolous appeals that wasted judicial resources and resulted in appellees incurring needless attorney fees. Defendants' attorney, Stephen M. Komie, signed each notice of appeal and each brief in the past and current appeals. Accordingly, we sanction attorney Komie under Supreme Court Rule 375(b). Ill. S.Ct. R. 375(b) (eff. Feb. 1, 1994).

[¶3] BACKGROUND

[¶4] During the course of their marriage, plaintiff Florence Pontarelli and her husband Raymond acquired six multi-unit buildings and three condominiums in Cook County. Raymond passed away in 2011. The multi-unit buildings are held by six limited liability companies (the property LLCs). Raymond's trust--which has been restated several times--owns a majority in three of the property LLCs, while the

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Florence's trust--also restated--owns a majority in the other three. Defendants Michael Pontarelli, Valerie Burgess, and Louise Cosmano are Raymond's children from a previous marriage. Michael and Louise are minority members of all the property LLCs, Defendant Pontarelli Management manages all of the property LLCs. Michael owns a 50% interest in Pontarelli Management.

[¶5] In November 2011, Florence filed suit against the property LLCs, Michael, Valerie, Louise, Pontarelli Management, and others seeking various relief. Two pleadings are currently pending in the circuit court. First, plaintiffs second amended complaint, which seeks: (i) a declaratory judgment that Michael's company--Pontarelli Construction--is not the manager of the property LLCs or Pontarelli Management; (ii) an inspection of the records and an accounting from the property LLCs and Pontarelli Management; (iii) the expulsion of Michael, Louise, and Valerie from the property LLCs; (iv) the dissolution of Pontarelli Management; (v) a declaration that Michael and Louise may not serve as trustees of either trust during Florence's lifetime; and (vi) a declaration that Raymond's trust had no interest in the marital residence. Florence further alleges breach of fiduciary duty against Michael, Valerie, Louise, and Pontarelli Construction. In the second amended complaint, plaintiff Michel Pontarelli stood in for Florence as holder of her power of attorney. Michel is also a co-trustee of Florence's trust, though defendants dispute her status as trustee.

[¶6] Defendants' counterclaim is also pending in the circuit court and that pleading seeks: (i) the removal of Florence as trustee of both trusts and the appointment of Michael and Louise as co-trustees; (ii) an accounting from both trusts; (iii) a constructive trust; and (iv) an injunction preventing Florence from dissipating the trusts' assets. Defendants further alleged conversion against Florence.

[¶7] In July 2012, the trial court granted in part defendants' motion for a temporary restraining order, preventing Florence from acting as trustee of either trust. The trial court also enjoined the sale of two condominiums held by the trusts. The parties eventually entered ...


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