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Gearhart v. Gearhart

Court of Appeals of Illinois, First District, Fourth Division

November 7, 2019

JOHN GEARHART, Plaintiff-Appellee,
v.
DAVID GEARHART, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 2015 CH 16093 The Honorable Diane J. Larsen, Judge Presiding.

          Attorneys for Appellant: David Gearhart, of Schaumburg, appellant pro se.

          Attorneys for Appellee John C. Martin and Kathryn C. Nadro, of Sugar Felsenthal Grais & Helsinger LLP, of Chicago, for appellee

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Reyes and Burke concurred in the judgment and opinion.

          OPINION

          GORDON PRESIDING JUSTICE

         ¶ 1 The instant appeal arises from a complaint for declaratory judgment filed by plaintiff John Gearhart against his brother, defendant David Gearhart, who was appointed trustee of their late father's trust. The trial court granted summary judgment in plaintiffs favor on count I of the complaint, finding that plaintiff was entitled to a 25% share of the trust's assets. After a bench trial, the trial court also found in plaintiffs favor on count II of the complaint, finding that defendant had breached his fiduciary duty as trustee. The court further found that this breach was willful and imposed a punitive damages monetary award of $250, 000. Defendant appeals, and for the reasons that follow, we affirm the trial court's judgment but vacate a portion of its punitive damages award.

         ¶ 2 BACKGROUND

         ¶ 3 I. Trust

         ¶ 4 On April 30, 1984, Lloyd E. Gearhart (the grantor)[1] established a trust, which provided for a certain distribution of his assets after his death. The grantor had four children: plaintiff, defendant, James Gearhart (also known as Jim), and Susan Tully.[2] The grantor also had an ex-wife, Marjorie Gearhart, and was married to Dorothy Gearhart at the time of his death.[3]Defendant served as trustee of the trust, which was amended twice during the grantor's life.

         ¶ 5 Under the original trust agreement, the grantor was named as trustee, with the successor trustee taking over upon his death. Article III of the original trust agreement governed the distribution of the trust's assets after the grantor's death. First, paragraph 1 of article III provided that the trustee was to pay such sums as required to fulfill the grantor's obligations to Marjorie pursuant to the judgment for dissolution of their marriage. Next, paragraph 2 of article III provided:

"[T]he trustee may in its discretion pay to or use for the benefit of the Grantor's descendants so much of the income and principal as the Trustee determines to be required, in addition to their respective incomes from all other sources known to the trustee, for their reasonable support, comfort and education, adding any excess income to principal at the discretion of the trustee. The trustee may make payments to, or for the benefit of, one or more of them to the exclusion of one or more of them, and may exhaust the principal. The Grantor's concern is primarily for the support, comfort and education of his descendants, rather than the preservation of principal for distribution upon termination of the trust. After the death of Grantor and after there is no living child of Grantor under the age of twentyone [sic] years, the trustee shall divide the principal, as then constituted, and any undistributed income, into separate trusts, equal in value, one for each then living child of Grantor and one for the then living descendants, collectively, of each deceased child of Grantor."

         Paragraph 2 then set forth a formula for distributions, based on the child's age. In summary, until the child was 25, he or she would be entitled to receive trust income in the trustee's discretion; upon turning 25, the trustee was required to make distributions of trust income to the child at regular intervals. After the child turned 25, he or she would also be entitled to request distributions of trust principal, with certain dollar limitations imposed prior to age 27 and age 30.

         ¶ 6 The first amendment to the trust agreement, dated May 1, 1995, amended the trust agreement to appoint defendant[4] trustee after the grantor's death, followed by Susan as successor trustee. The amendment also amended article III of the trust. Specifically, the amendment substituted a new paragraph 1, which now provided that the trustee was to distribute $100, 000 to Western Michigan University. Additionally, the amendment substituted a new paragraph 2, which now provided:

"The trustee shall distribute the remaining trust principal and any undistributed trust income to the Grantor's descendants that survive him, per stirpes."

         ¶ 7 The second amendment to the trust agreement, dated January 2, 2012, was executed shortly before the grantor's January 9, 2012, death and again amended article III of the trust agreement. The second amendment provided that "Article III of the Agreement, as amended by the First Amendment, shall remain in full force and effect, subject to the following modifications." First, the new article III provided for the payment of any obligations owed to Marjorie pursuant to the judgment for dissolution of marriage. Second, the new article III provided instructions for the support of Dorothy, including her continued residence in the marital home, the distribution of $100, 000 into a separate trust for the costs associated with the home, and the payment of a monthly sum from the trust's income or principal. Finally, the new article III contained the two paragraphs at issue in the instant litigation:

"3. Notwithstanding any provision of the Trust Agreement or the First Amendment to the contrary, the trustee shall not be obligated to distribute principal, and no child of the Grantor shall have the right to withdraw principal, while any of the foregoing obligations to the Grantor's spouses are outstanding.
4. Notwithstanding any provision of the Trust Agreement or the First Amendment to the contrary, no child of the Grantor shall have the right to withdraw principal, unless such child is the legitimate, inside of wedlock, parent of a living descendant of the Grantor." The second amendment also provided that the grantor resigned as trustee immediately, with defendant succeeding him as trustee. The second amendment ended by providing that, "[e]xcept as modified by this Second Trust Amendment, I reaffirm and ratify the Trust Agreement and the First Amendment."

         ¶ 8 II. Complaint

         ¶ 9 On November 2, 2015, plaintiff filed a two-count complaint for declaratory judgment against defendant. The complaint alleged that the trust's governing instruments provided that the trust's principal was to be distributed to the grantor's four children per stirpes following the satisfaction of other obligations and that defendant had made final distributions to Jim and Susan earlier that year based on the assumption that each of the grantor's children was entitled to an equal share of the trust's assets. However, after making those distributions, defendant's position was that plaintiff was only an income beneficiary of the trust, leaving defendant alone entitled to the remaining trust assets. Accordingly, plaintiff sought a declaratory judgment setting forth the parties' respective rights and ordering defendant to restore any distribution of assets to himself that violated the terms of the trust.

         ¶ 10 The complaint alleged that defendant was principally responsible for drafting the language of the second amendment and that the grantor died on January 9, 2012, one week after execution of the second amendment, leaving the trust with net assets of over $3 million. The complaint further alleged that, also in 2012, the trust sold the marital home referenced in the second amendment and resolved all further claims of Dorothy to the trust's assets.

         ¶ 11 The complaint alleged that, between 2012 and 2014, defendant made distributions of the trust's assets to himself and his siblings; as of December 31, 2014, defendant had distributed over $265, 000 to Susan, $168, 000 to Jim, and $68, 000 to plaintiff. Defendant had also distributed over $225, 000 to himself, in addition to sums he claimed as investment advisory fees. On March 31, 2015, defendant made a final distribution to Jim of approximately $630, 000 in trust assets. According to the complaint, "[c]onsistent with the understanding that each of [the grantor's] children had an equal share in the Trust's principal, the amount distributed to [Jim] reflected (a) twenty-five percent of the Trust's assets (as of February 6, 2015), (b) less an amount reflecting twenty-five percent of Marjorie's future support obligations, (c) plus an amount relative to tax obligations to be incurred by [Jim], (d) plus an amount intended to compensate [Jim] for having received previous distributions that were smaller than the average distributions made to all four of [the grantor's] children."

         ¶ 12 Similarly, on March 31, 2015, defendant made a final distribution to Susan of approximately $580, 000 in trust assets. According to the complaint, "[l]ike the final distribution made to Jim, the distribution made to Susan assumed that each of the four children were residuary beneficiaries of the Trust, reflecting (a) a one-third percentage of the Trust's remaining assets (as of June 10, 2015, following the distribution to Jim), (b) less an amount reflecting twenty-five percent of Marjorie's future support obligations (the same amount deducted from Jim's distribution), (c) plus an amount relating to tax obligations to be incurred by Susan. Unlike the distribution made to Jim, however, the distribution to Susan made no allowance for the fact that distributions previously made to her were larger than those made to other beneficiaries."

         ¶ 13 The complaint alleged that on July 20, 2015, plaintiff, through counsel, wrote to defendant requesting a statement of all receipts and disbursements made from the trust from the date of the grantor's death. Defendant responded by providing information through December 31, 2014, thereby omitting the final distributions to Jim and Susan. On September 3, 2015, after having learned of the agreements entered with Jim and Susan, plaintiff, through counsel, wrote defendant another letter, demanding an updated accounting of the trust's assets. The letter claimed that the agreement with Susan reflected a substantial decrease in the assets of the trust that was unrelated to the final distribution made to Jim and further claimed that the distribution to Susan had potentially served to improperly reduce the amount distributable to defendant because it failed to account for the excess distributions previously made to her. The next day, defendant provided updated financial information, which confirmed that the distribution made to Susan had not taken in account the previous distributions made to her. The updated financial information also showed that $40, 000 of the decrease in the trust's assets was attributable to distributions that defendant had made to himself during the first six months of 2015. These additional distributions brought the total amount of trust assets distributed to defendant to over $278, 000, which was $200, 000 more than had been distributed to plaintiff.

         ¶ 14 The complaint alleged that on September 22, 2015, plaintiff, through counsel, again wrote to defendant, asking for an explanation for the unequal distributions to beneficiaries and for an explanation of defendant's plan to reconcile these distributions so that the per stirpes distribution required by the trust documents was effectuated. In response, defendant suggested that plaintiff was only an income beneficiary of the trust and had no right to principal unless defendant, as trustee, chose to make such distributions to him in his discretion; plaintiff included correspondence setting forth these positions as exhibits to the complaint. The complaint alleged that this interpretation was inconsistent with the trust documents and was also inconsistent with the final distributions made to Jim and Susan, which were calculated based on the assumption that the four children had an equal claim to the trust assets. According to the complaint, defendant's position would leave him as the sole remaining residual beneficiary of the trust, entitling him to the entirety of the trust assets after Marjorie's support obligations were satisfied.

         ¶ 15 Count I of the complaint sought a declaratory judgment that plaintiff was entitled to a 25% interest in the trust's income and principal, subject only to the satisfaction of the obligations to Marjorie and Dorothy. Count I sought a court order declaring:

"A. That the Trust Instruments afford [plaintiff] a 25% share of the Trust's assets after the obligations to Marjorie and Dorothy are met;
B. That [defendant] has no right as Trustee to distribute [plaintiffs] share of the Trust's assets to himself, to any other beneficiary of the Trust, or to any other person; and
C. Granting [plaintiff] his costs of suit, including reasonable attorneys' fees, and such other and further relief as may be proper."

         ¶ 16 Count II of the complaint alleged that defendant had breached his fiduciary duty as trustee by making distributions to himself and to others in violation of the trust instruments' terms, which served both to enrich defendant and to diminish plaintiffs share of the trust's assets. Count II also alleged that defendant's position that he was the sole remaining residual beneficiary of the trust suggested that he would engage in further acts of self-dealing by making further distributions of trust assets to himself. Additionally, count II alleged that defendant's inconsistent positions when addressing Jim and Susan as compared to plaintiff showed that defendant was not acting in good faith but was acting with the intent to enrich himself at the expense of other trust beneficiaries. Accordingly, count II sought an order requiring defendant to provide a full accounting of all distributions made from the trust, to restore to the trust any distributions made in violation of the trust instruments' terms, with interest, and to preclude him from making any further distributions of the trust's assets in violation of the terms. Count II also requested the imposition of a constructive trust on any trust assets improperly distributed by defendant to himself or his family, as well as the removal of defendant as trustee and an award of attorney fees and costs.[5]

         ¶ 17 On November 30, 2015, defendant filed an answer, affirmative defenses, and counterclaim. In his answer, defendant denied the material allegations of the complaint but admitted that he was principally responsible for drafting the second amendment, albeit at the request of, and under the direction of, the grantor. Defendant also admitted that the net assets of the trust at the time of the grantor's death were $3.026 million, that Dorothy's claims to the trust's assets had been resolved, and that he had made full and final distributions to Jim and Susan in 2015. As affirmative defenses, defendant raised his reasonable reliance on the trust instruments, the business judgment rule, unclean hands, failure to state a claim, lack of damages, and "Other Affirmative Matter: Grantor's Intent."

         ¶ 18 Defendant also raised two counterclaims. Count I of his counterclaim sought a declaratory judgment and alleged that plaintiff had been estranged from the grantor prior to his death, leading the grantor to restrict plaintiffs withdrawal rights. Count I alleged that the grantor recognized that this would likely lead to resentment directed at the trustee, leading the grantor to insert an "incontestability clause" into the second amendment, which provided that any beneficiary unsuccessfully contesting the terms of the trust documents would not be entitled to any of the trust's assets. Specifically, the clause provided, in relevant part:

"Should any beneficiary of the trust contest the validity of the trust or institute any proceedings to contest the validity of the trust or any provisions thereof or institute any proceedings to construe any provision of the trust and such proceedings are deemed to be without merit by any court or to prevent any provision of the trust from being carried out in accordance with its terms (whether or not in good faith and with probable cause), then all the benefits provided for such beneficiary in the trust are revoked and annulled and such beneficiary and all said beneficiary's descendants shall be presumed to have pre-deceased the Grantor and the benefits which such beneficiary and all his or her descendants would have received if he or she had made no such contest or brought such proceeding shall go under my residuary clause as if such beneficiary and all said beneficiary's descendants predeceased the Grantor.

         ¶ 19 Count I alleged that the grantor sought to minimize any resentment by discussing the terms of the second amendment with plaintiff in January 2012 and plaintiff indicated that he was not concerned with the trust's terms. Count I further alleged that, after the grantor's death, plaintiff had indicated that he accepted his status under the trust documents until he later "became embittered and refused to communicate further" with defendant and filed the instant lawsuit. Accordingly, count I sought a declaration that plaintiff had violated the incontestability clause and was entitled to no further benefits under the trust.

         ¶ 20 Count II of the counterclaim was for breach of contract, alleging that the trust documents and the incontestability clause constituted a unilateral contract, which plaintiff accepted by receiving distributions from the trust. Count II alleged that plaintiff breached this contract by filing the instant complaint and, therefore, the trust had no further obligations to him.

         ¶ 21 Attached to the counterclaim were two affidavits by defendant, in which defendant averred that plaintiff, by choice, had been estranged from the grantor since December 1999 and had briefly reconciled with the grantor only a few times over the years, totaling no more than a few weeks combined. Defendant averred that plaintiff had likewise estranged himself from the rest of his family. According to defendant, on January 1, 2012, while he was visiting the grantor at his home, the grantor asked him to amend his trust. One of the amendments the grantor contemplated was disinheriting plaintiff, which defendant averred was "based on our mutual understanding and shared experience that [plaintiff] had long been estranged from the Grantor and other family members." They also discussed the grantor's concern that, since plaintiff did not have any children of his own, any principal distributed to plaintiff would likely end up being gifted to persons unknown to the grantor. Defendant averred that he "advised Grantor that he probably didn't need to go to the extreme of disinheriting [plaintiff] outright. Instead we could amend the trust to prevent [plaintiff] from demanding principal withdrawals." Defendant averred that "[plaintiff] would still receive income from the Trust, and [defendant] as Trustee would retain the discretion [to] stay in touch with him and make principal distributions as warranted." Defendant averred that he further advised the grantor that they did not need to single out plaintiff by name but could generally restrict the withdrawal rights of the grantor's children who did not have children of their own; plaintiff was the only child who met this criterion. The trust was amended to reflect defendant's suggestion, and the grantor explained the decision to plaintiff when he made his final visit to the grantor on January 4, 2012.

         ¶ 22 On January 15, 2016, plaintiff filed a motion to strike defendant's affirmative defenses and to dismiss his counterclaim under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)), claiming that none of the affirmative defenses or counterclaims provided either a legitimate defense to the claims asserted by plaintiff or a basis for affirmative, declaratory or other relief given the undisputed terms of the trust instruments.

         ¶ 23 On April 21, 2016, the trial court granted plaintiffs motion to strike and dismiss and gave defendant leave to replead his unclean hands defense and his counterclaims. On May 24, 2016, defendant filed an amended answer, affirmative defenses, and counterclaims, alleging two affirmative defenses and repleading the two counts of his counterclaim.

         ¶ 24 On June 16, 2016, plaintiff filed a motion to strike defendant's amended affirmative defenses and to dismiss the amended counterclaim, alleging that defendant had failed to correct the defects from the earlier pleadings, merely repeating the same arguments that had previously been rejected. On September 29, 2016, the trial court granted plaintiffs motion to strike and dismiss and gave defendant leave to replead them; defendant did not do so.[6]

         ¶ 25 III. Motions for Summary Judgment

         ¶ 26 As the trial court's orders concerning summary judgment are at issue on appeal, we discuss the summary judgment proceedings in some detail.

         ¶ 27 A. Defendant's Motion for Partial Summary Judgment

         ¶ 28 On October 13, 2016, defendant filed a motion for partial summary judgment as to count I of plaintiffs complaint. Defendant claimed that there was no disagreement over the fact that the trust documents required the principal of the trust to be divided into separate trusts, equal in value, for each then-living child of the grantor. However, defendant claimed that distributions of the trust assets were subject to both the postponement of withdrawal set forth in the second amendment's article III, paragraph 3, and the restriction on withdrawal set forth in article III, paragraph 4. Defendant claimed that, with respect to plaintiff, neither condition had been met-plaintiff had no descendants and Marjorie was still living-so the two clauses operated to restrict plaintiffs access to trust principal.

         ¶ 29 Defendant claimed that he had discretion to make discretionary distributions of principal under article III, paragraph 2, of the original trust agreement, which also postponed beneficiary withdrawal rights until the beneficiary reached the age of 21. Defendant acknowledged that this paragraph had been removed by the first amendment, which replaced the paragraph with one providing for immediate distributions of trust principal. However, he claimed that "that part of the First Amendment was negated when the Second Amendment reinstated postponement of withdrawal rights (this time using the life of Marjorie Gearhart as the measurement period)." Defendant argued that "[i]t is reasonable and consistent to conclude that the Trustee's power to make discretionary distributions of principal was also reinstated; the contrary provisions of the First Amendment being rendered null and void."

         ¶ 30 Defendant also claimed that the grantor demonstrated his intent to treat plaintiff differently than other beneficiaries through the language of the second amendment, since plaintiff was the only beneficiary with no children and, therefore, the only beneficiary to whom the plain terms of the second amendment's article III, paragraph 4, would apply. Additionally, if the intent was not apparent from the plain language of the trust documents, defendant claimed that the intent could be discerned from the circumstances under which the second amendment was made, including plaintiffs relationship with the grantor. Defendant pointed to his affidavit, in which he set forth details of plaintiffs estrangement from the grantor. Defendant also claimed that these restrictions and the discretion afforded defendant were reasonable, fair, and in accordance with public policy.

         ¶ 31 In support of his motion for summary judgment, defendant attached copies of the trust documents, as well as the same affidavits that he had attached to his counterclaims.

         ¶ 32 On January 25, 2017, the trial court granted plaintiff leave to depose defendant prior to responding to defendant's motion for summary judgment, which plaintiff did. On April 11, 2017, plaintiff filed a response in opposition to defendant's motion, claiming that neither the terms of the trust instruments nor the evidence entitled defendant to judgment as a matter of law. Plaintiff claimed that defendant was conflating the restrictions on distributing principal with the restrictions on withdrawing principal, noting that the second amendment's article III, paragraph 4, contained no language directed at defendant's obligation to distribute principal but only restricted plaintiffs right to withdraw principal. Since the second amendment's article III, paragraph 3, discussed both distributions and withdrawals, plaintiff argued that the use of only the word "withdraw" in paragraph 4 must be interpreted to have significance. Plaintiff also noted that the term was not defined in the trust documents and that there were several plausible explanations of the grantor's intent in using that term. Plaintiff also argued that defendant's claims that he had discretion to make distributions of principal found no support in any of the trust documents.

         ¶ 33 Plaintiff also claimed that defendant's evidentiary claims concerning the grantor's intent were disputed. In support, plaintiff attached defendant's deposition testimony, plus affidavits from plaintiff, Jim, and Susan. Defendant's deposition testimony was largely consistent with his affidavit, setting forth the circumstances under which the second amendment was executed and discussing the grantor's relationship with his children. Defendant testified that the second amendment was executed while he was in Arizona, visiting the grantor following the grantor's diagnosis of terminal cancer. The grantor brought up the issue, telling defendant that he wanted to amend the trust for several reasons, including providing for his current wife and "restricting a distribution for one of his sons and postponing the distribution for another of his sons." Defendant and the grantor had several conversations concerning the issue, with defendant creating drafts, which the grantor would then review along with Dorothy and revise if necessary; the drafting process took approximately two days. Defendant and the grantor were alone when they discussed the trust's treatment of plaintiff, but Dorothy was present when they discussed the provisions concerning her.

         ¶ 34 With respect to the second amendment's article III, paragraph 3, defendant testified that the purpose of the paragraph was to prevent Jim from demanding his principal prior to age 60; defendant testified that he and the grantor used the obligations to the grantor's spouses as a proxy for the time of the delay instead of specifying a certain age. Defendant testified that the intent of paragraph 3 was to permit defendant to retain Jim's share in the trust until that time, which also served the practical purpose of ensuring that there was sufficient principal remaining in the trust while the trust was obligated to make monthly payments to the spouses. Defendant could not recall why they chose the specific terms "distribute" and "withdraw" but testified that "one is focused from the point of view of the beneficiary, and the other is focused from the point of view of the trustee. The right to demand accrues to the beneficiary. The obligation to distribute applies to the trustee." Defendant further testified that he was not obligated to make a distribution unless there was a demand for a distribution.

         ¶ 35 With respect to the second amendment's article III, paragraph 4, defendant testified that it was aimed at plaintiff, as he was the only child of the grantor who did not have children.[7]The grantor did not inform defendant about why he wished to include the provision, but defendant testified that, "[w]hen he mentioned should we disinherit [plaintiff], I knew why. It was based on our shared experience with [plaintiff] being long estranged from the family. He did not need to provide me with an additional explanation because I knew what he meant."

          ¶ 36 Defendant testified that he did not recall there being any significance to the decision to omit any reference to an obligation to distribute in paragraph 4. Defendant further testified that, after all obligations to Marjorie were satisfied, plaintiff would still have no right to demand distribution of the trust principal but defendant would have the discretion to distribute the principal to him. Defendant acknowledged that he was "not aware of anything prohibiting" him from simply holding on to the principal until plaintiff died. Defendant testified that, should that happen, then plaintiffs share of the principal would be added to the shares of the other beneficiaries; since Jim and Susan had already resolved their claims to the trust's assets, the only remaining beneficiary under the trust would be defendant himself. Defendant testified that the grantor informed him that he spoke with plaintiff, Jim, and Susan about the terms of the trust documents; defendant was not present for these conversations.

         ¶ 37 As noted, also attached to the response to the motion for summary judgment were several affidavits. In plaintiffs affidavit, he averred that he was not estranged from the grantor; although he was not in regular contact with the grantor between 2001 and 2009, they renewed contact in 2009, after which plaintiff visited the grantor several times. Plaintiff also had regular contact with Susan and Jim but was estranged from defendant, who he characterized as "physically and verbally abusive" to him. Plaintiff averred that his final visit with the grantor was shortly before his death; at no time did the grantor discuss any changes to the trust, nor did he indicate that the trust treated plaintiff any differently than his siblings.

         ¶ 38 In her affidavit, Susan averred that she was in regular contact with the grantor during the time preceding his death and that each of her brothers visited the grantor prior to his death. Susan averred that she was aware that, during defendant's visit, the grantor and defendant amended the trust documents in order to address some of Dorothy's concerns. Susan averred that she had spoken to the grantor multiple times about his financial affairs and that he had often told her that the trust would provide for an equal division of his assets among his four children after his death; he never suggested to her that he intended to alter that distribution. Susan also heard the grantor tell her husband that his arrangements "would make sure [their] children could get through school." Susan also averred that plaintiff and the grantor had reconciled at least a year or two prior to the grantor's death and that her observations of their interactions during plaintiffs visit were consistent with a reconciliation. After the grantor's death, defendant informed Susan that he needed to be careful in paying out any of the trust's assets to her because, if he did, plaintiff and Jim would also want to receive money. Susan averred that defendant informed her that he specifically did not want to pay plaintiff because, if the assets remained in the trust after plaintiff died," 'our kids would get it.'"

         ¶ 39 Finally, in his affidavit, Jim averred that he was generally aware that an amendment had been prepared prior to the grantor's death but he did not read the amendment until sometime after his death. Jim averred that at no point did the grantor inform him that the amendment was in any way intended to alter his rights or those of plaintiff. Jim's understanding was that the sole purpose of the amendment was to take care of Dorothy. Jim averred that he had a close relationship with the grantor and that the grantor had informed him of his intention to divide his assets equally among his children after his death. The grantor never suggested to Jim that he had any intention of changing his estate plans due to plaintiffs lack of children.

         ¶ 40 In his reply in support of his motion for partial summary judgment, defendant argued that the affidavits submitted by plaintiff did not contradict the evidence he presented, as none of the other siblings had been present during the discussions about the amendment. Instead, defendant attached the affidavit of Dorothy, who he claimed was present during such discussions, as well as an additional affidavit in which defendant disputed the claims in his siblings' affidavits. In her affidavit, Dorothy averred that she had witnessed the grantor's relationships with each of his children during her marriage and that the grantor frequently shared his thoughts and feelings toward them to her. She averred that the grantor had a "continuously good" relationship with defendant and his family. However, the grantor was estranged from plaintiff at the time that Dorothy met the grantor in April 2008. The grantor informed Dorothy early during their relationship that plaintiff had not been in communication with him for several years, and Dorothy observed that this created a "very emotional and disturbing situation" for the grantor. The first time that plaintiff called their home was in the summer of 2011; Dorothy denied intercepting any previous calls from plaintiff.

         ¶ 41 Dorothy averred that she was present when defendant visited the grantor in December 2011 and January 2012 and was present when the grantor asked defendant to revise certain terms of the trust documents. Defendant drafted the second amendment to the trust documents and presented drafts to the grantor for his approval, which the grantor discussed with Dorothy; the revision process took one to two days, and they "had plenty of time to ask [defendant] to explain certain terms and to make certain revisions." Dorothy averred that she and the grantor discussed the terms of the second amendment that changed the withdrawal rights of his children. Dorothy averred that "[the grantor] told [her] these were specifically intended toward [plaintiff] and Jim. [The grantor's] main concern was to leave enough money to ensure that all his grandchildren would have a good college education. Jim was estranged from his wife and son, and [plaintiff] did not have any children. This was one of the reasons [the grantor] revised his Trust to restrict [plaintiff] and Jim's distributions."

         ¶ 42 On June 30, 2017, the trial court denied defendant's motion for partial summary judgment. While the order did not set forth the court's reasoning, during the hearing on the motion, the trial court found that it would look only to the terms of the trust agreement and had no need to consider extrinsic evidence. In doing so, the court found that, although the second amendment included a restriction on the right to withdraw, that did not eliminate the obligation to distribute that was included in the trust documents. The court further found that the trustee's discretion to distribute principal had previously been eliminated. Accordingly, the trial court denied defendant's motion.

         ¶ 43 On July 28, 2017, defendant filed a notice of appeal. On July 31, 2017, defendant filed a motion to reconsider or, in the alternative, a motion for leave to appeal from the June 30, 2017, order under Illinois Supreme Court Rule 308 (eff. July 1, 2017) or on "another permissive basis."[8] On September 6, 2017, the trial court denied the motion in its entirety. During the hearing on the motion, the court informed defendant's counsel: "The Motion to Reconsider is denied. This is not an appealable order, because the denial of a Motion for Summary Judgment is not automatically appealable. There has been no judgment entered in anyone's favor. There hasn't been a judgment entered in the Plaintiffs favor. It is simply a denial of a Summary Judgment to be entered in the Defendant's favor and that would not be appealable."

         ¶ 44 B. Defendant's Second Motion for Partial Summary Judgment

         ¶ 45 On January 26, 2018, defendant filed another motion for partial summary judgment on count I of the complaint. Defendant reiterated the arguments made in his first motion for summary judgment, namely, that plaintiff had no right to demand distribution of trust principal but could demand distribution only of trust income and that defendant had the discretion, but not the obligation, to make principal distributions to plaintiff.

         ¶ 46 Attached to the motion for partial summary judgment were the documents that had previously been attached to defendant's initial motion for partial summary judgment and the reply in support of that motion, including defendant's affidavits and Dorothy's affidavit. Also attached to the motion was the transcript of plaintiff s discovery deposition. In his deposition, plaintiff testified that he had been unemployed since 2014 and that his sole source of income since that time had been distributions from the trust; plaintiff had been receiving $1500 a month from the trust between August 2012 and October 2017. Plaintiff further testified that there was a period of eight years in which he had no contact with the grantor and that he had no communication with Marjorie, his mother. Plaintiff testified that he reconciled with the grantor in the summer of 2011. During his last visit, the grantor brought up finances, but plaintiff told him not to worry about it and that he would speak to defendant about it; plaintiff was not aware that the grantor had a trust until after the grantor's death.

         ¶ 47 In response, in addition to arguments concerning the terms of the trust, plaintiff argued that the evidence showed that the grantor did not intend to disinherit him. Plaintiff attached the transcripts of the depositions of both Dorothy and Marjorie in support. In her deposition, Dorothy's testimony was consistent with her affidavit. She testified that she was present for approximately four conversations about the trust between the grantor and defendant and that she and the grantor also discussed the issue a number of times privately; she was not aware if there were any private conversations between the grantor and defendant, but she assumed that there were. The grantor never discussed disinheriting either Jim or plaintiff with Dorothy, and she was not present for any conversation between the grantor and plaintiff.

         ¶ 48 In her deposition, Marjorie testified that she was unaware that the grantor had established a trust and that he did not discuss the terms of the trust with her. She further testified that the last contact she had with Susan was in October 2006 and that the last contact she had with plaintiff was in January 2003. The last contact she had with Jim was the previous weekend, but prior to that, she had no contact for the prior two years. She had contact with defendant "[q]uite often." Marjorie testified that the grantor also had challenging relationships with his children, but that, despite that, he expressed in 2008 that he would never disinherit them.

         ¶ 49 C. Plaintiffs Motion for Partial Summary Judgment

         ¶ 50 Also on January 26, 2018, plaintiff filed a motion for summary judgment on count I of the complaint, claiming that the language of the trust unambiguously demonstrated plaintiffs rights to the trust principal and defendant's lack of discretion in making distributions. Plaintiff argued that the restriction on withdrawal set forth in article III, paragraph 4, of the second amendment did not eliminate the requirement that the trustee distribute the principal to the beneficiaries upon the satisfaction of the obligations to Marjorie and Dorothy. Plaintiff pointed to the fact that paragraph 3 referenced both distribution and withdrawal but paragraph 4 referenced only withdrawal, arguing that the difference in terminology must be interpreted to have significance. Plaintiff further argued that the trust documents contained no reference to the trustee's discretion in making such principal distributions, even though the trustee was specifically afforded discretion elsewhere in the trust documents. Plaintiff also sought a finding that not only did defendant lack discretion to distribute trust principal in general, he specifically lacked the discretion to withdraw principal himself. Plaintiff claimed that defendant had distributed nearly $500, 000 to himself since the denial of defendant's first motion for summary judgment and sought a finding that defendant lacked the discretion to make distributions to himself while the obligations to Marjorie remained outstanding.

         ¶ 51 In response, defendant argued that plaintiff and the other beneficiaries had never suggested that the prior discretionary distributions made by defendant were done without authorization under the terms of the trust; instead they accepted the payments. Defendant also claimed that the omission of an express provision restoring the trustee's discretion to make distributions was inadvertent. Defendant further claimed that the absence of the word "distribute" in paragraph 4 was a mere scrivener's error and that neither he-the drafter of the amendment-nor the grantor intended the absence of that language to have any ...


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