2023 IL App (2d) 220088-U No. 2-22-0088 Order filed May 9, 2023
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
CENTRUE BANK and KWAME RAOUL, ) Appeal from the Circuit Court successor to LISA MADIGAN, in Her ) of Kendall County. Official Capacity as Attorney General of ) the State of Illinois, ) ) Plaintiffs, ) ) v. ) No. 08-CH-0871 ) LYLE L. VOGA, LOIS ENGLERT, ) SHIRLEY BUSCH, LINDA JOAN ) FRISBEE and ROBERT DUFAU, ) ) Defendants, ) ) (Lyle L. Voga, Defendant and ) Counterplaintiff-Appellant; Larry Voga, ) Defendant and Counterdefendant, ) Honorable Lois Englert, and Linda Joan Frisbee, ) Judge Robert P. Pilmer, Defendants and Counterdefendants-Appellees ) Judge, Presiding ______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court. Justices Hutchinson and Schostok concurred in the judgment.
ORDER
¶1 Held: Counterplaintiff Lyle Voga failed to show that the trial court abused its discretion in denying his request for a new trial. Any issues involving counterdefendant Linda Frisbee’s fiduciary duties are moot, and the trial court properly accounted for the instant trust. 2023 IL App (2d) 220088-U
¶2 Defendant and counterplaintiff Lyle Voga (Lyle) appeals the trial court’s September 30,
2021, adjudication of his amended countercomplaint, which sought an accounting of trust assets,
an apportionment of liability for estate taxes, and a finding that defendants and counterdefendants
Larry Voga (Larry) and Lois Englert (Lois) had breached their fiduciary duties as co-trustees. Lyle
argues that the trial court erred in: 1) failing to hold a new trial as to the remaining counts of his
amended countercomplaint; 2) improperly ruling on matters that were not before the court; and 3)
failing to “[c]orrectly [a]ccount to the Voga [t]rust.” We affirm.
¶3 I. BACKGROUND
¶4 This case comes before us for the third time. The events leading up to Centrue Bank v.
Voga, 2017 IL App (2d) 160690 (Voga I) involved a revocable living trust (Trust) executed by
Lyle’s late father, Leroy Voga (Leroy), in January 2003 for the benefit of his children: Lyle, Larry,
Lois, and defendant and counterdefendant Linda Frisbee (Linda). The Trust designated Leroy as
trustee while naming Linda primary successor trustee.
¶5 The trust provided that Lyle, Linda, and Larry would receive parcels of real property upon
Leroy’s death, and that Shirley Busch (Shirley) would receive a life estate in Leroy’s Arizona
residence (Arizona Property). The trust did not provide Lois with any real estate. In January 2003,
Leroy executed a durable power of attorney (Power of Attorney), designating Linda as his agent.
In September 2006, Linda, acting as Leroy’s agent, executed an amendment to the Trust
(Amendment), bequeathing the fair market value of the farm real estate previously granted to Linda
and Larry to Lois upon Leroy’s death.
¶6 In February 2007, the siblings executed an agreement designed to make themselves co-
trustees of the Trust. Under this newfound authority, Lyle and Larry demanded Plaintiff Centrue
Bank (Centrue) to turn over certain Trust property, leading Centrue to file an interpleader action
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(see 735 ILCS 5/2-409 (West 2006)) against the siblings, Shirley, and a third party who is no
longer involved with these proceedings.
¶7 In August 2010, Lyle filed a 13-count countercomplaint against Larry, Lois, and Linda.
Larry and Lois answered the countercomplaint and filed affirmative defenses before Lyle filed an
additional count against Linda.
¶8 In June 2011, Lyle filed a motion under section 2-615(e) of the Code of Civil Procedure
(Code) (735 ILCS 5/2-615(e) (West 2010)) for judgment on the pleadings on count X of his
countercomplaint, which argued that the Amendment was void. In July 2011, the court granted
Lyle’s motion. In January 2012, Linda filed a motion to vacate the court’s July 2011 order, which
was granted.
¶9 In June 2012, Larry and Lois filed a joint motion under section 2-619(a) of the Code (735
ILCS 5/2-619(a) (West 2012)), seeking dismissal of count X of Lyle’s countercomplaint and a
declaratory judgment finding that Lyle forfeited any interest in the Trust by operation of the Trust’s
no-contest clause. After a hearing, the trial court dismissed count X of Lyle’s countercomplaint
but denied Lois’s and Larry’s request for a declaratory judgment.
¶ 10 In February 2013, Lyle filed a five-count amended countercomplaint against Larry, Linda,
and Lois. Count I sought an accounting of the Trust’s assets, count II sought an apportionment of
liability for estate taxes, and count III alleged a breach of fiduciary duty by Larry and Lois. Counts
IV and V of the amended countercomplaint argued that the Amendment was void because it did
not comply with certain statutory requirements.
¶ 11 After the court noted that it had already disposed of counts IV and V of the amended
countercomplaint through its previous adjudication of count X of Lyle’s initial countercomplaint,
a bench trial was held to resolve the remaining counts of the amended countercomplaint. In June
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and July 2016, the court adjudicated the remaining counts. Regarding counts I and II, the court
calculated the total value of the Trust’s assets for tax purposes and valued each sibling’s assets and
resulting tax liabilities. Concerning count III, the court determined that Lyle’s breach-of-fiduciary-
duty claim was defeated by his own “unreasonable conduct.” Following the court’s denial of Lyle’s
motion to reconsider, Lyle filed his appeal in Voga I.
¶ 12 In Voga I, we reversed the trial court’s dismissal of count X (which Lyle later repurposed
as count V of his amended countercomplaint). We also reversed the court’s July 2016 judgment
as to counts I through III of the amended countercomplaint, which had relied on erroneous findings
as to count X. Voga, 2017 IL App (2d) 160690, ¶¶ 62-63. Specifically, in addressing count II of
the amended countercomplaint, we provided that “we remand for a new trial on count II as well.”
(Emphasis added.) Id., ¶ 64.
¶ 13 Following our disposition of Voga I, Lyle and Linda filed cross motions for partial
summary judgment as to count V of the amended countercomplaint. On August 18, 2018, the court
granted partial summary judgment in Linda’s favor, finding that the Power of Attorney allowed
her to validly execute the September 2006 Amendment. On January 3, 2019, Lois filed a motion
to obtain a final judgment as to counts I through III of Lyle’s amended countercomplaint. On
January 10, 2019, the trial court granted Lois’s motion. Lyle timely appealed the court’s January
2019 order while Lois initiated collection proceedings against him.
¶ 14 In Centrue Bank v. Voga, 2020 IL App (2d) 190108 (Voga II), we held that the Amendment
was void pursuant to section 2-9 of the Illinois Power of Attorney Act (Act). 755 ILCS 45/2-9
(West 2006); Id., ¶ 54. Consequently, we reversed the trial court’s dismissal of count V of the
amended countercomplaint and vacated the trial court’s order granting partial summary judgment
in Linda’s favor. Id. We remanded “for further proceedings consistent with [our] opinion.” Id.,
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¶ 56.1
¶ 15 On April 29, 2021, after the case had been once again remanded, Lyle filed his motion to
reopen the proofs. In the motion, Lyle requested a new trial, or, in the alternative, to reopen the
proofs to introduce several cancelled checks. According to Lyle, these cancelled checks were
relevant in determining whether certain Trust payments constituted personal payments made to
Lyle, as pertinent to count I of his amended countercomplaint. In the motion, Lyle further argued
that our prior mandates in this matter required a new trial. On May 13, 2021, Lois responded to
the motion, arguing that our earlier decisions did not mandate a new trial and that “[r]eopening
proofs to allow evidence that was available at the time of trial would be a clear abuse of th[e]
[c]ourt’s discretion.”
¶ 16 On June 29, 2021, the trial court held its hearing on Lyle’s motion to reopen the proofs.
During the hearing, Lyle argued that “[t]he majority of the case has been settled for the specific
distributions underneath the [T]rust now that the [A]mendment has been found void.” However,
Lyle argued that, in order to adjudicate the remaining claims of his amended countercomplaint,
the court still needed to value the Trust’s residuary and determine “how taxes should be allocated.”
¶ 17 Concerning our decision in Voga I, the court asked Lyle, “So wasn’t the direction [of the
appellate court] that I conduct a new trial as to [c]ounts [I, II, III, and V]?” Lyle eventually
responded, “I think so, judge.” Lyle continued, arguing that, because the trial court’s July 2016
judgment had partly relied on the voided Amendment, a new trial was necessary so that the court
could “have trial testimony to address the [remaining] counts.” In essence, Lyle reasoned that the
1 Our decision also resolved count IV of Lyle’s amended countercomplaint, as counts IV
and V collectively argued that the power of attorney did not enable Linda to amend the Trust.
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prior trial had “operate[d] under the same framework *** that the trust [A]mendment [was] still
valid,” meaning a new trial was necessary. The court began to ask whether Lyle expected there to
be any differences between the evidence adduced at the parties’ prior trial and any potential
evidence adduced at a new trial, aside from the cancelled checks. Lyle responded,
“I think the answers would have been the same, but I can tell at least from my own
personal position, my questions would have been different which would result in different
testimony, not inconsistent, but I would have asked different questions.”
The court then asked Lyle why he should be entitled to now introduce the cancelled checks, as
they were not previously produced when discovery had been already opened. Lyle responded,
arguing that, here, the “elements of reopening proofs” allowed for him to introduce the cancelled
checks. Lyle also argued that, regardless of the cancelled checks, a new trial would yield
“different,” pertinent testimony.
¶ 18 Lois weighed in, seemingly suggesting that our decision in Voga I may have warranted a
new trial if the validity of the Amendment were still at issue, but, because that issue was
subsequently addressed in Voga II, “there is no need for a second trial” to determine the sole
question of “what the [Trust] residual is and how taxes should be allocated.” Otherwise put, Lois
posited that “[t]here [were] no new issues in the case. It is simply a different math problem.”
According to Lois, there were no evidentiary issues present in the first trial, and Lyle was
improperly seeking “a second bite of the apple.” In support of this contention, Lois recalled that,
back in December 2013, she had “propounded a notice to produce *** asking [for] the exact
documents that Lyle is now producing,” the “checks from prior to 2009.” Consequently, Lois
reasoned that the cancelled checks could not be characterized as “newly[ ]discovered evidence” to
otherwise justify reopening the proofs. The court eventually asked Lyle, “[H]ow is a lack of
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diligence in producing records pre-2016, how does that translate into allowing these new records
to be used [in] a [new] trial?” Lyle responded, “[I]f we are to follow the Second District mandate
of a new trial, I don’t know that your Honor would allow these most recent documents to come
into evidence. That would be up to your Honor.”
¶ 19 Following the parties’ arguments, the trial court noted that, “with respect to the motion to
reopen [the] proof[s],” the first issue to consider was “whether or not [Lyle] ha[d] a reasonable
excuse for failing to present the [cancelled checks] during the course of the trial.” The court found
“no reasonable excuse” for Lyle’s “fail[ure] to present the [checks] prior to trial or at the time of
trial.” The court next considered “whether [Lois and Linda] would be surprised or unfairly
prejudiced” in the event it granted Lyle’s motion, eventually answering that question in the
affirmative. Finally, the court considered whether the cancelled checks were integral to the matter.
After finding that the checks were “not of the utmost importance” to Lyle’s case, the court denied
Lyle’s motion to reopen the proofs.
¶ 20 After denying Lyle’s motion, the court asked the parties whether they were ready to argue
“on all remaining issues” in the case. They indicated they were. During his arguments, Lyle
described how, after Leroy passed away, he “continued to farm the subject farmland *** by a fifty-
fifty crop share agreement.” Referencing at least one cancelled check that had purportedly been a
prior trial exhibit, Lyle suggested that, at the conclusion of the prior trial, certain Trust payments
had improperly been allocated as his own “personal expenses,” when, in reality, those payments
were attributable to the Trust as part of “the [T]rust’s 50 percent share of the farm expenses.” Lyle
further argued that certain attorneys’ fees in the prior litigation had been wrongly “charged to
[himself],” as the fees in question resulted from an attorney’s prior, collective representation of
Lyle, Linda, Lois, and Larry before the parties “all split up” and “[got] their own representation.”
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¶ 21 The court asked, “So you said, you know, that you just indicated that Lyle’s expenses were
part of the [T]rust expenses, but isn’t that getting into the issue of reopening the proofs?” Lyle
answered, “Not to the extent that the evidence is already within the record, judge, and so I did go
over that rather quickly.” Lyle later indicated that following the prior bench trial, he had “filed”
evidence of the attorneys’ fees to “rebut trial testimony” that the fees “should be credited a hundred
percent to Lyle.”
¶ 22 On September 30, 2021, the trial court entered an order resolving the amended
countercomplaint. In the order, the court noted that “[c]ounsel for the parties contend that as a
result of the earlier trial, the court has already heard all of the testimony from the parties and
witnesses, and received all of the evidence therefore it can rule based on that evidence, following
the direction of the Appellate Court.” The court briefly outlined counts I through III of Lyle’s
amended countercomplaint, which had remained pending after our decision in Voga II. While
discussing count III, the court first noted:
“Count III alleges that Larry and Lois breached their fiduciary dut[ies] to Lyle. As
more fully set forth herein, the court finds that Lyle, Larry, and Lois each had a fiduciary
duty to the others, and that each breached their fiduciary duty to the others. As a result of
accounting [sic] undertaken herein, Lyle’s breach of his fiduciary duty to the others, and
the lack of any damages suffered by Lyle, the court finds he is not entitled to any relief
under [c]ount III. The court further finds[] that Linda owed a similar fiduciary duty to the
others, but there was no evidence that she, either as the successor Trustee or as co-Trustee,
breached her fiduciary duty to the others.”
¶ 23 After finding that our decision in Voga II rendered counts IV and V moot, the court made
certain findings “[b]ased upon the evidence originally heard at trial,” “in light of [our] decisions”
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in Voga I and Voga II. These findings generally included information concerning the Trust’s
creation, assets, language, and distributions.
¶ 24 While completing its accounting of the Trust pursuant to count I of the amended
countercomplaint, the court found that Lois was entitled to the Arizona property as part of her
share of the Trust’s residuary. Additionally, having found that Lyle received $11,818.32 more than
what he was entitled to under the Trust, and that Lois was entitled to an additional $11,818.32
from the residuary, the court ordered Lyle to pay this amount directly to Lois, “[r]ather than
requiring Lyle to pay his overpayment to the Trust so that it w[ould] be distributed to Lois.” Aside
from that, the September 30, 2021, order “set forth all of the various transactions which occurred
following the death of Leroy Voga as they pertain[ed] to the Trust, and allocate[d] the
responsibility for those transactions” amongst the parties.
¶ 25 Concerning count II, the court found the “proportionate share[s] of Federal Estate Taxes
owed by each individual or the Trust, the payments made by each person or the Trust, and any
balance of the original tax obligation which may be due and owing.”
¶ 26 Concerning count III, the court found that, as co-trustees, Lyle, Larry, Lois, and Linda all
owed “a fiduciary duty to the others to faithfully carry out the terms of the Trust Agreement,
manage and preserve the assets of the Trust,” and to make certain distributions under the Trust.
While the court found that Lyle, Larry, and Lois all individually breached their fiduciary duties, it
noted that there was “no evidence that Linda undertook any action as co-trustee which would have
been a breach of her fiduciary duty to the others.” According to the court, Linda was “the only one
who did not receive something to which she was not entitled. It appeared that at all times she acted
in good faith in dealing with her siblings.”
¶ 27 On October 27, 2021, Lyle filed his motion to reconsider, once more arguing that Voga I
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required a new trial. Lyle also disputed the trial court’s finding that the parties all believed that the
court already heard any necessary evidence to fully adjudicate the amended countercomplaint.
Lyle next argued that the trial court erred in finding that Linda did not breach any fiduciary duties
owed to her siblings, arguing that such a finding was improper, as “there was no count before [the
court] alleging that Linda *** had breach [sic] any fiduciary duty owed to the other Trust
beneficiaries.” Lastly, Lyle disputed the trial court’s accounting of the Trust, arguing that the court
had no basis to issue a personal judgment against himself to be paid to Lois. On February 17, 2022,
the trial court denied Lyle’s motion to reconsider. Lyle timely appeals.
¶ 28 II. ANALYSIS
¶ 29 Lyle raises several arguments attacking the trial court’s denial of his request for a new trial,
as well as its September 30, 2021, adjudication of the remaining counts of his amended
countercomplaint. First, Lyle argues that the trial court improperly denied him a new trial. Second,
Lyle argues that, in making its September 30, 2021, findings, the trial court improperly ruled on
matters that were neither in evidence nor before the court. Third, Lyle argues that the court failed
to correctly account for the Trust. For the reasons below, we reject all of these contentions.
¶ 30 A. New Trial
¶ 31 First, Lyle has not shown that the trial court abused its discretion in denying his request
for a new trial. “This court applies an abuse of discretion standard of review in considering a trial
court's ruling on a motion for a new trial.” Unitrin Preferred Insurance Co. v. Dobra, 2013 IL App
(1st) 121364, ¶ 17. This is the most deferential standard of review, in which reversal is only
warranted where the trial court has acted arbitrarily, without conscientious judgment, or outside
the bounds of reason. Pierce v. Cherukuri, 2022 IL App (1st) 210339, ¶ 19. Lyle raises two reasons
why he believes the trial court erred in denying him a new trial. First, Lyle argues that our language
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in Voga I explicitly required the trial court to hold a new trial as to the remaining contentions in
his amended countercomplaint. Second, Lyle argues that, due to certain evidentiary concerns
arising from the first trial, the court was required to grant him a second trial. For the reasons below,
we reject both contentions.
¶ 32 1. Effect of Voga I
¶ 33 First, Voga I did not explicitly require the trial court to hold a new trial. “After a judgment
is reversed and the cause is remanded, the trial court can hold only such further proceedings as
conform to the judgment of the appellate tribunal.” Clemons v. Mechanical Devices Co., 202 Ill.
2d 344, 352-53. For instance, “[w]hen a judgment of a trial court is reversed and the cause is
remanded by this court with specific directions as to the action to be taken, it is the duty of the trial
court to follow those directions.” Bjork v. Draper, 404 Ill. App. 3d 493, 502 (2010). “If specific
directions are given, nothing can be done except [to] carry out those directions.” Roggenbuck v.
Breuhaus, 330 Ill. 294, 297 (1928). On the other hand, “[i]f no specific directions are given, it
must be determined from the nature of the case what further proceedings will be proper and not
inconsistent with [the reviewing court’s decision].” Id. at 297-98. Where a reviewing court has
reversed and remanded a matter with no specific instructions, “the trial court’s judgment is entirely
abrogated and the cause, on remand, stands as if no trial had taken place.” People ex rel.
Department of Transportation v. Firstar Illinois, 365 Ill. App. 3d 936, 939 (2006). “At that point,
the trial court has the same control over the record that it had before entering its judgment, and, as
such, it may allow the introduction of further evidence as long as such a step is not inconsistent
with the appellate court’s decision.” Id. The question of whether a trial court has properly followed
a reviewing court’s mandate is reviewed de novo. Clemons, 202 Ill. 2d at 351.
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¶ 34 Here, Lyle argues that he is entitled to a new trial because, in Voga I, we “clearly remanded
the case back to the trial court for a new trial on [c]ounts I, II[,] and III” of his amended
countercomplaint. Otherwise put, Lyle contends that our mandate included specific directions that
a new trial was absolutely necessary. On the other hand, both Lois and Linda argue that, despite
our language in Voga I, no new trial was required because no material facts remained in dispute.
¶ 35 We agree with Linda and Lois. Where a reviewing court’s mandate provides that a matter
should be remanded for a new trial, the word “trial” should be read to encompass “all phases of a
trial, including all pretrial matters.” Firstar, 365 Ill. App. 3d at 940. Consequently, a direction to
remand for a new trial does not provide a trial court with specific instructions on how a cause
should proceed on remand. Id. For this reason, “if, on remand for a new trial, the trial court finds
that no issue of material fact exists, the trial court may enter summary judgment” while remaining
consistent with the reviewing court’s mandate. Id.
¶ 36 Here, Lyle is correct that Voga I included language suggesting that the matter should be
remanded for new trial. 2017 IL App (2d) 160690, ¶ 64. However, pursuant to Firstar, this general
instruction did not necessarily require the trial court to actually conduct a new trial. Firstar, 365
Ill. App. 3d at 940. Instead, the trial court had discretion to enter summary judgment for any party
if it found that no issue of material fact existed. Here, the trial court found no issues of material
fact, so summary judgment was appropriate.
¶ 37 Lyle nonetheless argues that we should reverse the trial court’s September 30, 2021, order
because the order inaccurately represented his position as to the necessity of a new trial.
Specifically, Lyle argues:
“In its order of September 30, 2021, the trial court held that ‘[c]ounsel for the parties
contend that as a result of the earlier trial, the court has already heard all of the testimony
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from the parties and witnesses, and received all of the evidence therefore it can rule based
on that evidence, following direction of the Appellate Court.’ Not only is this finding in
direct contradiction to what the appellate court had directed, *** it grossly misrepresents
Lyle Voga’s position *** and fails to address the fact that the earlier judgment of the trial
court was entirely abrogated and that the cause stands as if no trial had even occurred.”
¶ 38 As a preliminary note, we do not believe that the trial court’s referenced finding was an
abuse of discretion, as Lyle had previously admitted to the court that any testimony in a
hypothetical new trial would likely be the same or consistent with the testimony adduced at the
parties’ earlier trial. Still, even if we were to accept that the trial court misrepresented Lyle’s stance
on the issue, Lyle provides us with no reasoning or authority suggesting that such a
misrepresentation is a basis for reversal. Furthermore, while Lyle cites Clemons, 202 Ill. 2d at 356-
57, for the proposition that the reversal of a trial court’s judgment results in a complete abrogation
of that judgment, he cites no authority for his implicit suggestion that such a reversal also renders
previously admitted trial testimony and evidence incompetent for any future proceedings.
Accordingly, both of these points are forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1., 2020). For all
of these reasons, we find that the trial court did not violate our mandate in Voga I when it declined
Lyle’s request to hold an entirely new trial. 2
2 In his reply brief, Lyle additionally argues that the trial court could not have considered
evidence adduced at the first trial, because “evidence as to matters that occurred before appeal are
generally not taken as evidence in subsequent proceedings unless there is an agreement between
the parties, which in the present case there was not as evidenced by Lyle Voga’s Motion to Reopen
the Proofs.” In support of this proposition, Lyle cites to Roggenbuck and Clemons. Upon review
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¶ 39 2. Evidentiary Concerns
¶ 40 Next, Lyle argues that the trial court erred in not granting him a new trial because of certain
evidentiary concerns. First, Lyle argues that he is entitled to a new trial because certain facts were
inadequately developed during the parties’ earlier trial. Second, Lyle argues that he is entitled to a
new trial because the evidence adduced at the prior trial is “stale.” We reject both of these
contentions.
¶ 41 i. Inadequately Developed Facts
¶ 42 Because Lyle has failed to describe any disputed, material questions requiring further
development, we reject his argument that a new trial is necessary for him to adequately develop
certain facts.
“Where a material question is in controversy upon a material issue, and the record discloses
that all the evidence on that issue has not been produced, [a reviewing] court has the power
to reverse the judgment and remand the cause for the taking of further evidence on the part
of either or both of the parties, upon the issues.” American Smelting & Refining Co. v.
Industrial Commission, 353 Ill. 324, 329-30 (1933).
of these cases, we find no language in Clemons supporting Lyle’s contention, and we also note
that Lyle mischaracterizes Roggenbuck. There, our supreme court found that “the testimony of
witnesses or other evidence contained in a bill of exceptions taken on the trial of a cause is not
evidence on the subsequent trial of the same cause unless by agreement of the parties.” (Emphasis
added.) Roggenbuck, 330 Ill. 294 at 299. Here, there was neither a bill of exceptions filed by any
party, nor any second trial. Accordingly, Roggenbuck is inapplicable. Id.
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¶ 43 Citing American Smelting, Lyle essentially argues that, because the trial court had
prevented him from questioning any witnesses as to the validity of the Amendment, a new trial is
warranted so that he may pursue this line of questioning. In other words, Lyle argues that he is
entitled to a new trial because the former trial evidence pertaining to the validity of the Amendment
was not fully developed. However, pursuant to American Smelting, a reviewing court may only
order a new trial where prior undeveloped evidence involved “a material question *** in
controversy upon a material issue.” Id. Here, because we already determined the Amendment to
be invalid while deciding Voga II, it cannot be said that the question of the Amendment’s validity
currently constitutes “a material question *** in controversy upon a material issue.” Id.
Consequently, American Smelting does not support Lyle’s argument that he is entitled to a new
trial. Id.
¶ 44 Regardless, Lyle suggests that the validity of the Amendment remained material despite
our ruling in Voga II, asserting:
“The entire basis for the proceedings has now changed. As before, where [the
Amendment] was presumed valid and was dictating the court determinations relating to
accountings, fiduciary obligations, and ultimate distributions, now the *** [A]mendment
has been nullified which was altered drastically the way the parties and the court are to
address the well-pled issues before them.”
We do not find Lyle’s conclusory arguments to be convincing. Again, in deciding Voga II, we
settled the issue of the Amendment’s validity, and our decision that the Amendment was invalid
became the law of the case. Consequently, there is no way that the issue of the Amendment’s
validity remained in “controversy” for purposes of American Smelting. Id. Furthermore, while
Lyle suggests that further testimony as to the Amendment’s validity was necessary to settle his
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remaining contentions, he provides us with no specific reasoning or examples demonstrating as
much, especially when one considers that the trial court’s September 30, 2021, findings already
relied on the assumption that the Amendment was invalid, consistent with our findings in Voga II.
For all of these reasons, we disagree with Lyle’s arguments that he was entitled to a new trial so
that he could further question witnesses as to the Amendment’s validity.
¶ 45 ii. Stale Evidence
¶ 46 Next, while Lyle argues that he is entitled to a new trial because the evidence adduced at
the prior trial had since become “stale,” this contention is forfeited. Pursuant to Illinois Supreme
Court Rule 341(h)(7) (eff. Oct. 1., 2020), any arguments contained in an appellant’s brief “shall
contain the contentions of the appellant and the reasons therefor, with citation of the authorities
and the pages of the record relied on.” The failure to adequately develop an argument or to support
an argument with pertinent authority results in forfeiture of the issue. Franciscan Communities,
Inc. v. Hamer, 2012 IL App (2d) 110431, ¶ 19.
¶ 47 Here, Lyle’s arguments concerning the “stale” evidence adduced at the parties’ trial are
undeveloped and unsupported by any authority whatsoever. For instance, while he argues that
“certain material circumstances” had “changed” since the prior trial, such as Larry Voga’s death
and the “Trust’s continued need to maintain certain assets,” he provides no reasoning as to how
these changes are material or how they are relevant to the trial court’s September 30, 2021,
findings. Lyle provides no authority explaining when evidence becomes “stale,” and he cites no
authority for the proposition that a new trial is warranted solely on the basis of “stale” evidence.
For these reasons, Lyle’s arguments on the subject are forfeited, and Lyle has failed to show that
the court abused its discretion in denying his request for a new trial. Id.
¶ 48 B. Matters Not in Evidence
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¶ 49 Second, we decline to consider Lyle’s argument that the trial court improperly ruled on
matters that were neither in evidence nor before the court, because the issue is moot. “As a general
rule, courts of review in Illinois do not decide moot questions, render advisory opinions, or
consider issues where the result will not be affected regardless of how those issues are decided.”
In re Barbara H., 183 Ill. 2d 482, 491 (1998). “When a decision on the merits would not result in
appropriate relief, such a decision would essentially be an advisory opinion.” Commonwealth
Edison Co. v. Illinois Commerce Commission, 2016 IL 118129, ¶ 10.
¶ 50 Here, Lyle challenges the trial court’s finding that Linda did not breach any fiduciary duty
owed to her siblings, arguing that the matter was never properly before the court. Consequently,
Lyle argues that we should strike any language from the September 30, 2021, order concerning
Linda’s fiduciary duties, as any findings on the subject were “null and void.”
¶ 51 Because any issue of Linda’s fiduciary duties is moot, we deny Lyle’s request. Again, Lyle
essentially argues that the issue of Linda’s fiduciary duties was neither relevant to his amended
countercomplaint, nor pertinent to the evidence that was adduced below. Accordingly, Lyle
implicitly concedes that Linda’s fiduciary duties—or any breach thereof—is irrelevant to his
amended countercomplaint. Because the issue is irrelevant to the amended countercomplaint, it
cannot be said that Linda’s fiduciary duties affect the relief requested in the amended
countercomplaint. Indeed, upon our review of the trial court’s September 30, 2021, order, we find
no indication that the court’s findings as to Linda affected Lyle’s sought-after relief, and Lyle has
cited no portions of the record or provided us with any arguments demonstrating as much.
Consequently, because any further findings as to Linda’s fiduciary duties would therefore amount
to an advisory opinion, we will not consider the moot issue. Id.
¶ 52 C. Overpayments to the Trust
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¶ 53 Third, we reject Lyle’s argument that the trial court failed to properly account for the Trust.
“When a trustee breaches a trust agreement, whether wilfully, negligently, or by oversight, he is
liable for any loss to the estate resulting from the breach and must place the beneficiaries in the
position they would have held had the breach not occurred.” Progressive Land Developers, Inc. v.
Exchange National Bank of Chicago, 266 Ill. App. 3d 934, 942 (1994).
¶ 54 Here, Lyle argues that the trial court failed to properly account for the trust when it ordered
him to pay $11,818.32 to Lois. In support of this argument, Lyle cites several sources purportedly
establishing the proper procedure “of how overpayments by a trustee are supposed to be [properly]
handled.” Specifically, Lyle cites Gearheart v. Gearheart, 2020 IL App (1st) 190042 (2020), the
Restatement (Second) of Trusts § 254 cmt. e (1959), section 817 of the Illinois Trust Code (760
ILCS 3/817 (West 2022)), and In re Will of Samson, 684 So. 2d 845 (Fla. 1996), all for the
proposition that a trustee may only rectify trust overpayments by restoring overpaid amounts
directly back to a trust. Relying on these sources, Lyle seemingly argues that the trial court was
only empowered to order him to pay $11,818.32—representing the sum total of his outstanding
overpayments—directly to the Trust and not to Lois.
¶ 55 Because none of Lyle’s cited sources establish that trust overpayments must always be
restored to a trust, we reject this argument. In Gearheart, the plaintiff beneficiary sought “an order
requiring [the] defendant [trustee] to provide a full accounting of all distributions made from [a]
trust,” so that the defendant could “restore to the trust any distributions made in violation of the
trust instruments’ terms, with interest.” 2020 IL App (1st) 190042, ¶ 16. There, after a trial, the
court found that the defendant had breached certain fiduciary duties owed to the trust’s
beneficiaries, and “ordered [the] defendant to ‘restore sums wrongfully taken from the [t]rust.’ ”
Id. ¶ 110. According to the trial court in Gearheart, “[W]here funds [are] improperly released from
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a trust, the trustee must return that amount, as the trustee is personally liable for any loss
occasioned by a violation of his duties as trustee.” Id.
¶ 56 While the trial court in Gearheart did find it appropriate for the defendant to reimburse any
unauthorized distributions back to the trust, no parties appealed that aspect of the trial court’s
ruling. Id., ¶¶ 121-151. Consequently, the First District never contemplated the proper procedure
for remedying trust overpayments. Id. Accordingly, the case is inapposite and does not support
Lyle’s position.
¶ 57 Similarly, the Restatement (Second) of Trusts § 254 cmt. e (1959), does not establish that
the trial court erred in ordering Lyle to pay $11,818.32 directly to Lois. Pursuant to the Restatement
(Second) of Trusts § 254 (1959):
“If the trustee has made a payment out of trust property to one of several
beneficiaries to which the beneficiary was not entitled, such beneficiary is personally liable
for the amount of such overpayment, and his beneficial interest is subject to a charge for
the repayment thereof, unless he has so changed his position that it is inequitable to compel
him to make repayment.”
Furthermore, comment (e) to section 254 reads:
“If the trustee makes an overpayment out of the trust estate to one of several
beneficiaries, the trustee is entitled to maintain a suit against the beneficiary who is
overpaid and is entitled to a charge upon the beneficiary’s interest for the amount of the
overpayment, and he is under a duty to the other beneficiaries to maintain such a suit or to
enforce such a charge, unless he has himself made good to the other beneficiaries or has
paid into the trust the amount of the overpayment, for which he is himself personally
liable.” Restatement (Second) of Trusts § 254 cmt. e (1959).
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Despite Lyle’s arguments to the contrary, we see nothing in the above language specifically
providing that a trustee’s overpayments of trust funds may only be rectified by reimbursing the
trust. In fact, comment (e) suggests otherwise—that a trustee may “[make] good to the other
beneficiaries” in lieu of restoring any overpayments back to the trust. Id. This language creates the
inference that a trustee may rectify overpayments through direct dealings with the other
beneficiaries.
¶ 58 Lyle’s reliance on section 817 of the Illinois Trust Code is also misplaced. This section of
the Illinois Trust Code, which deals with the distribution of trust funds upon the termination of a
trust, contains no language whatsoever specifying where or to whom trust overpayments should
be restored. Bluntly put, this statute is completely irrelevant to Lyle’s argument.
¶ 59 While it is true that In re Will of Samson, 684 So. 2d at 846-47, stands for the proposition
that, “[i]n general, a [trust] beneficiary is obligated to restore an overpayment to the trust,” this
case does not provide that repayment to the trust is the sole method by which a trustee may rectify
an overpayment. Furthermore, even if Samson were interpreted to only allow repayment to a trust,
the case has been decided by a Florida court, and “cases from foreign jurisdictions are not
precedential or binding on this court.” In re A.C., 2016 IL App (1st) 153047, ¶ 47. For these
reasons, none of Lyle’s cited sources convince us that the trial court erred in accounting for the
Trust.
¶ 60 Because “the relief sought within [c]ount I of Lyle’s complaint d[id] not seek the entry of
a personal judgment against any one” of his siblings, Lyle alternatively argues that the trial court’s
judgment improperly granted unrequested relief to the parties. We reject this last contention.
¶ 61 “Courts of equity possess original and inherent power to recognize, execute and control
trusts and trust funds.” Village of Hinsdale v. Chicago City Missionary Society, 375 Ill. 220, 233
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(1940). “While as a general rule the relief awarded should conform to that sought by the pleadings
[citations], this rule does not always apply and, in many cases, the court has power to grant any
relief within the issues formed by the pleadings and justified by the evidence, regardless of the
specific relief demanded.” Hare v. Canvassing Board of Berwyn Township, 146 Ill. App. 3d 88,
91 (1986). In determining whether a deviation from a party’s requested relief is warranted, we are
guided by principles of equity. Id.
¶ 62 Here, although Lyle did not expressly seek a personal judgment against any of the Trust’s
co-trustees, we nonetheless uphold the trial court’s order. Again, while completing its accounting
of the Trust, the court found that Lyle received $11,818.32 more than what he was due, and that
Lois was entitled to an additional $11,818.32 from the Trust’s residuary. Given the court’s inherent
power over trust funds and the fact that Lyle’s overpayments mirrored the amount of money that
Lois was owed, we believe the trial court’s decision to have Lyle pay $11,818.32 directly to Lois
was equitable, especially because Lyle suffered no prejudice by having to pay Lois directly rather
than placing the money back within the Trust. Thus, we reject Lyle’s contention that the trial court
failed to properly account for the Trust.
¶ 63 III. CONCLUSION
¶ 64 For the reasons stated, we affirm the judgment of the circuit court of Kendall County.
¶ 65 Affirmed.
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