Good v. Walsh

2026 IL App (1st) 242362-U

• Court: Appellate Court of Illinois
• Decided: March 20, 2026
• Docket: 1-24-2362
• Status: Unpublished

Opinion

2026 IL App (1st) 242362-U SIXTH DIVISION

March 20, 2026

No. 1-24-2362

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 FIRST DISTRICT ______________________________________________________________________________ SUSAN GOOD, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) ) v. ) No. 23 L 8370 ) DIANE KWIATKOWSKI-WALSH And ) OLD NATIONAL WEALTH MANAGEMENT, ) Honorable ) Anthony C. Swanagan, Defendants-Appellees. ) Judge, presiding.

PRESIDING JUSTICE C.A. WALKER delivered the judgment of the court. Justices Pucinski and Gamrath concurred in the judgment.

ORDER

¶1 Held: We reverse the circuit court’s dismissal of appellant’s claims against appellee Diane Kwiatkowski-Walsh per section 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2022)) because the purported affirmative matter did not preclude appellant’s claims. We affirm the court’s dismissal of appellant’s claim against appellee Old National Wealth Management but alter the dismissal No. 1-24-2362

from with prejudice to without prejudice because the court based its prejudice finding on the same erroneous ground as the claims against Kwiatkowski-Walsh.

¶2 This case arises from a dispute between two sisters, the Plaintiff-Appellant Susan Good and

the Defendant-Appellee Diane Kwiatkowski-Walsh (Walsh). Lorraine Kwiatkowski (Lorraine),

their mother, was the beneficiary of an Illinois Land Trust (Land Trust). Per the terms of the trust

agreement (the “Land Trust Agreement”), Good and Walsh would become beneficiaries with equal

shares upon Lorraine’s death unless the “property” in the trust was previously “conveyed.”

Following Lorraine’s death, Good sued Walsh, claiming that in violation of Good’s rights as a

beneficiary of the Land Trust with an equal interest, Walsh had been living rent-free at Lorraine’s

residence (hereinafter “the House”), property held in the Land Trust, following her death. Walsh

moved to dismiss, arguing that Lorraine had a separate inter vivos trust through which she had

altered the beneficiary provisions of the Land Trust Agreement to grant Walsh the ability to use,

occupy, and control the House following Lorraine’s death until the time of Walsh’s death.

¶3 Good also sued Old National Wealth Management (Old National), a division of Old

National Bank (the Bank) for breach of contract, claiming it was the trustee of the Land Trust and

had breached the Land Trust Agreement by not selling the House after the trust existed for 20

years. Old National moved to dismiss as well, arguing that Good had sued the wrong party (though

admitting the Bank was the Land Trust trustee), the 20-year provision was not self-executing, and

the Bank never received a directive to sell the Land Trust property from a beneficiary.

¶4 The circuit court ruled for both defendants and dismissed Good’s claims with prejudice. On

appeal, Good claims this ruling was erroneous as to all claims. For the reasons below, we (1)

reverse the dismissal of Good’s claims against Walsh; (2) affirm the dismissal of Good’s claim

against Old National but alter it to a dismissal without prejudice; and (3) remand for further

proceedings.

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¶5 BACKGROUND

¶6 Good filed her complaint on August 22, 2023, bringing claims against Walsh for an

accounting and unjust enrichment, and against Old National for breach of contract. Respecting

Walsh, Good claimed that both she and Walsh had equal interests as the co-beneficiaries of the

Land Trust, which included in its holdings the House, a residence in Riverside, Illinois, placed in

the Land Trust on March 2, 1994. Counter to these equal interests, however, Good alleged that

Walsh resided in the House “without compensation to the [Land] Trust” from the time of

Lorraine’s death until the filing of the complaint. Because of this improper usage, Walsh should

be ordered to “account for her use and occupancy.” Good also alleged this conduct led to Walsh

enriching herself to the detriment of the Land Trust, entitling Good to compensatory damages

amounting to her equal share of the fair rental value of the House.

¶7 As to Old National, Good claimed that per the terms of the Land Trust Agreement, Old

National was required to sell any trust property remaining in the trust after 20 years elapsed from

the date of creation (June 9, 1973), but the House remained in the Land Trust.

¶8 Good attached the Land Trust Agreement to her complaint, which, in relevant part:

a. Named the Bank of Lyons as Trustee.

b. Placed title to two parcels in Sleepy Hollow, Illinois, in the Land Trust 1;

c. Made Julian Kwiatkowski and Lorraine Kwiatkowski the beneficiaries,

who possessed the entire beneficiary interest in the Land Trust as joint

tenants with right of survivorship; and

1 Walsh’s motion to dismiss claimed the Land Trust property, from the beginning, only consisted of the House. For the purposes of this appeal, we must accept the allegation in Good’s complaint and supporting documents (including the Land Trust Agreement) regarding what property was placed in the Land Trust and when. See Mercado v. S&C Electric Co., 2025 IL 129526, ¶¶ 18-19.

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d. Dictated that upon the death of the of the survivor between Julian and

Lorraine, the “property not having been previously conveyed,” the entire

interest went “to their children in equal shares.”

The Land Trust Agreement further stated, “No assignment of an interest hereunder shall be binding

on the Trustee until the original or a duplicate of the assignment is lodged with the trustee and the

reasonable fees of the trustees for the acceptance thereof paid.” Finally, the Land Trust Agreement

contained a provision stating, “If any property remains in this trust twenty years from this date it

shall be sold at public sale by the trustee on reasonable notice, and the proceeds of the sale shall

be divided among those who are entitled thereto under this trust agreement.”

¶9 On December 7, 2023, Walsh filed a motion to dismiss per section 2-619.1 of the Illinois

Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2022)), arguing that the accounting claim was

subject to dismissal under section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-

615 (West 2022)) because land trust beneficiaries have no duty to account to each other under

Illinois law, and count II should be dismissed pursuant to section 2-619(a)(9) because Walsh had

a superior right in the House that precluded Good’s claim. In support of the section 2-619(a)(9)

argument, Walsh stated that (1) Julian died in 2008, leaving Lorraine as the lone beneficiary of the

Land Trust; (2) before her death, Lorraine executed an inter vivos trust, which she amended twice;

and (3) the second (and operative) amendment to the inter vivos trust (hereinafter the “Living

Trust”) granted Walsh a “life estate in the House, which included rent-free use and occupancy of

the House.” Walsh attached the Living Trust to her motion but did not include the original inter

vivos trust document or the first amendment. In the Living Trust, dated July 19, 2008, in Article V

(titled, “Gifts on My Death”), section 5.3(c)(i), the document reads:

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“(c)(i) Retention and Use of Residence by Diane M. Walsh. The trustee is authorized to

retain my Village of Riverwoods, Illinois residence (“residence”) for Diane M. Walsh’s life

notwithstanding that the residence may constitute a large part or all of the principal of the

trust and may lack the diversification or productivity ordinarily considered prudent for trust

investments. Diane M. Walsh may continue to use and occupy the residence rent-free,

provided she pays all taxes, assessments, insurance premiums, ordinary repair bills, and

other expenses of protecting and maintaining the residence. Notwithstanding the preceding

sentence, if any expense payable by [] Diane M. Walsh pursuant to the preceding sentence

would be chargeable against the principal of the trust as is necessary to reimburse her for

payment of that expense or, if requested to do so by Diane M. Walsh, the trustee shall pay

that expense directly from the principal of the trust. As long as Diane M. Walsh pays

expenses as required by the preceding two sentences of this paragraph, the trustee shall not

sell the residence except as provided in the following paragraph.

(ii) Sale and Purchase of Residence. Upon Diane M. Walsh’s written request, the

trustee shall sell all or any part of the residence for its fair market value and shall retain the

proceeds of the sale as principal. Diane M. Walsh may at any time purchase the residence

from the trustee for its fair market value, determined as of the date [] Diane M. Walsh

delivers to the trustee a written purchase offer.”

The Living Trust named Lorraine as “the Primary Trustee,” and Good and Walsh as “Successor

Co-Trustees,” to assume Lorraine’s duties upon her “resignation, death or disappearance,” or if

she was certified incompetent. The Living Trust contains no explicit reference to the Land Trust

or Land Trust Agreement.

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¶ 10 Good responded, arguing that she was entitled to an accounting as a co-beneficiary, and that

Walsh’s purported life estate in the House was invalid because the Living Trust had “no legal

interest in the [Land] Trust Property.” Walsh replied on January 29, 2024.

¶ 11 On February 14, 2024, Old National also moved to dismiss Good’s claim against it under

section 2-619.1, arguing (1) dismissal under section 2-619 was appropriate because Old National

Bank Wealth Management was not a properly named defendant, as it is “a division of Old National

Bank ***, not a separate entity”; and (2) dismissal was appropriate under section 2-615 because

Good failed to allege a necessary element, breach, as the trustee had no duty per the Land Trust

Agreement to sell the House without direction from the beneficiar(ies) of the Land Trust (citing

Heritage County Bank & Trust Co. v. State Bank of Hammond, 198 Ill. App. 3d 1092 (1990)). In

so arguing, Old National admitted the Bank was the successor in interest to the Bank of Lyons as

Land Trust trustee.

¶ 12 On October 29, 2024, the circuit court granted both motions and dismissed Good’s

complaint with prejudice. On Walsh’s motion, the court found that section 5.3(c) of the Living

Trust “is plainly directed to a trust that has been granted control of Lorraine’s personal property,”

which included her beneficiary interest in the Land Trust. The court continued that Good did not

dispute the Living Trust’s existence or the validity of the amendment to the Living Trust and only

argued “that there is a conflict and a ‘disconnect’ between the [Land Trust Agreement] and [the

Living Trust].” Finding that there was no “such conflict or disconnect,” the court explained:

“The [Land Trust] explicitly treats the benefits of the trust retained by Julian and Lorraine

Kwiatkowski as personal property that can be assigned and conveyed as such. As noted

above, those benefits also explicitly include the right to manage and control the property.

Those benefits were to descend to the Kwiatkowski’s daughters in equal shares provided

6 No. 1-24-2362

that the property had not been previously conveyed,” but “Lorraine’s trust agreement

conveyed possession and control of the property to [Walsh] via the grant of a life estate.”

While this conveyance did not “extinguish” Good’s Land Trust beneficiary interest, the court

found, it did delay “that interest until [Walsh] passes away or until the renting or sale of the

premises.” Because Walsh now had a superior interest in the House, she owed no accounting to

Good for use and occupancy and did not unjustly enrich herself at the Land Trust’s expense.

¶ 13 The circuit court next concluded that Walsh’s superior interest in the House also precluded

Good’s claim against Old National, as it left Good with no right to direct Old National to sell the

property during Walsh’s life. In so finding, the court noted that Good’s “misnomer” in failing to

name the Bank was “not material.”

¶ 14 Good filed her notice of appeal on November 26, 2024.

¶ 15 JURISDICTION

¶ 16 The circuit court dismissed Good’s claims with prejudice on October 29, 2024, and Good

filed her notice of appeal on November 26, 2024, giving this court jurisdiction pursuant to article

VI, section 6 of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court

Rules 301 (eff. Feb. 1, 1994) and 303 (eff. July 1, 2017).

¶ 17 ANALYSIS

¶ 18 On appeal, Good claims the circuit court erred in dismissing both claims against Walsh and

the claim against Old National. We start with the claims against Walsh.

¶ 19 The circuit court dismissed Good’s claims for an accounting and unjust enrichment against

Walsh pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure. 735 ILCS 5/2-

619(a)(9) (West 2022). In general, a motion to dismiss under section 2-619 admits the legal

sufficiency of the plaintiff’s claims but argues that an affirmative defense or a defect in the claim

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bars the plaintiff from recovery as a matter of law. Mercado, 2025 IL 129526, ¶ 19. One such

instance is where “the claim asserted against defendant is barred by other affirmative matter

avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2022); see also

Smith v. Waukegan Park District, 231 Ill. 2d 111, 120-21 (2008). The affirmative matter must be

either apparent on the complaint’s face or established by the defendant through affidavits or other

evidence. Doe v. University of Chicago Medical Center, 2015 IL App (1st) 133735, ¶ 37. If the

defendant makes this initial showing, “the burden shifts to the plaintiff to demonstrate the proffered

defense is unfounded or requires the resolution of a material fact.” Id. Disputed material facts

“cannot be disposed of through a section 2-619(a)(9) motion to dismiss.” Ball v. Chicago White

Sox, Ltd., 2025 IL App 1st 230949, ¶ 31. We review the grant of a section 2-619 motion de novo.

Mercado, 2025 IL 129526, ¶ 19.

¶ 20 The affirmative matter Walsh asserts is that the Living Trust amended the Land Trust

Agreement to grant Walsh a superior beneficiary interest in the House which precludes Good from

seeking rent from Walsh following Lorraine’s death. Specifically, Walsh contends that Lorraine,

via section 5.3(c) of the Living Trust, assigned to her a “life estate,” which included the exclusive

right to use and occupy the House, along with the ability to sell the house if she desires, until the

time of her death. This provision of the Living Trust, Walsh argues, satisfied the “previously

conveyed” language in the Land Trust Agreement’s beneficiary provision, and thus constituted a

valid amendment of the Land Trust Agreement.

¶ 21 The Illinois land trust mechanism is distinct from a standard trust because it “places both

the legal and equitable title in the trustee.” In re County Treasurer and ex officio County Collector

of Cook County, 2023 IL App (1st) 220070, ¶ 26. The beneficiaries of an Illinois land trust,

meanwhile, possess a personal property interest in the property held in the land trust. Id. The

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beneficiary is generally understood to have four powers per this personal property interest: (1) to

possess, manage, and physically control the real estate held in the land trust; (2) to receive income

from that property; (3) to direct the trustee in dealing with that property; and (4) to receive proceeds

from the sale of the property. FirstMerit Bank, N.A. v. Soltys, 2015 IL App (1st) 140100, ¶ 23.

¶ 22 As a general proposition, Illinois land trusts may be “freely amended.” Dorman v. Central

National Bank in Chicago, 97 Ill. App. 3d 429, 432 (1981). “Unless restricted by an agreement of

the parties, amendments concerning the identity of the beneficiaries, the power of direction, or the

allocation of proportionate interest in the trust may be effectuated by simple assignment without

further documentation.” Id. Where, however, it is “expressly provided for in the trust instrument,

modifications must comply” with the express terms. Estate of Bantsolas v. Bantsolas, 377 Ill. App.

3d 684, 687 (2007).

¶ 23 “An inter vivos trust is defined as a transfer of property during the lifetime of a settlor and

to become effective in his lifetime as contrasted with a testamentary trust which takes effect at the

death of the settlor.” Wells Fargo Bank, N.A. v. Simpson, 2015 IL App (1st) 142925, ¶ 27 (quoting

Kahn v. First National Bank of Chicago, 216 Ill. App. Ed 272, 278 n.1 (1991)). A “life estate,” per

Black’s Law Dictionary, is a type of “interest in land or other property *** the ownership being

measured in terms of duration,” specifically, “An estate held only for the duration of a specified

person’s life.” ESTATE, Black’s Law Dictionary (12th ed. 2024).

¶ 24 We interpret a trust like a will, with the primary goal of determining the settlor’s intent.

Bank of America, N.A. v. Judevine, 2015 IL App (1st) 140532, ¶ 20. The rules of construction

applicable to wills apply equally to trusts. Id. Our review of the circuit court’s construction of a

trust is de novo. Id. ¶ 19.

9 No. 1-24-2362

¶ 25 The record shows that the Land Trust Agreement’s beneficiary provision contains a caveat

to Good and Walsh receiving equal shares at Lorraine’s death—that the “property” not be

“conveyed” beforehand. In another provision, regarding transfer of beneficiary rights, the Land

Trust Agreement states that any “assignment of interest” will not be binding on the trustee until

record of that assignment is “lodged” with the trustee. The Living Trust is styled as the “Second

Amendment” to a previous a inter vivos trust. The record does not contain, nor do the parties allege,

any of the contents of the initial inter vivos trust, or the first amendment thereto. The Living Trust

does not explicitly assign Lorraine’s beneficiary interest in the Land Trust to the Living Trust. It

does, however, purport to grant Walsh additional interest in certain property in the Land Trust, the

House, than Walsh would have otherwise been entitled to under the original Land Trust

Agreement’s beneficiary provision. The record is silent as to whether Lorraine “lodged” the Living

Trust with the Land Trust trustee. Walsh provides no additional evidence in support of her section

2-619(a)(9) motion to demonstrate Lorraine’s intent in creating the Living Trust, or Julian and

Lorraine’s intent underlying the Land Trust Agreement.

¶ 26 We find the Living Trust is not sufficiently conclusive on its face to support dismissal under

section 2-619(a)(9). It is well-established that the beneficiary of an Illinois land trust possesses

only a personal property interest and does not have legal or equitable title in trust property. See

Soltys, 2015 IL App (1st) 140100, ¶ 21 (quoting Redfield v. Continental Casualty Corp., 818 F.2d

596, 607 (7th Cir. 1987)). As a result, the beneficiary cannot transfer a real property interest in the

land trust property, though they are generally able to assign their own personal property interest.

See Trust Company of Illinois v. Kenny, 2019 IL App (1st) 172913, ¶ 57. Here, the Living Trust

fails to specify that Lorriane is transferring her personal property interest in granting Walsh the

right to use and occupy the House at Lorraine’s death. Indeed, Walsh maintains Lorraine granted

10 No. 1-24-2362

her a “life estate,” which is generally an interest in real property which Lorraine technically could

not grant. In re Estate of Mendelson, 298 Ill. App. 3d 1, 3-4 (1998). The Living Trust does not

contain specific terms that conclusively illustrate Lorraine’s intent, such as “beneficial interest in

Land Trust” or “life estate.” The most we can conclude from the face of the Living Trust itself is

that Lorraine may have intended to alter the beneficiary provision to grant Walsh the superior

interest, but she may have instead been attempting to grant Walsh interest in real property. Because

the resolution of this issue necessitates inquiry into her intent, we must reverse and remand. Ball,

2025 IL App 1st 230949, ¶ 31.

¶ 27 The fact that Lorraine included section 5(c)(ii), permitting Walsh an exclusive right to sell

the House, raises additional questions regarding her intent that cannot be answered from the face

of the Living Trust alone. For this clause to be effective, Lorraine would have had to lodge the

Living Trust with the Land Trust trustee, as the express language of the Land Trust Agreement

states no assignment is binding on the trustee otherwise. While this may not have precluded the

effect of the assignment on Walsh’s ability to use and occupy the House, which are part of the

beneficiary rights that do not implicate the trustee (see Corcoran v. Rothmeier, 2022 IL App (1st)

201374, ¶ 31-35), the sale of the House, and accompanying transfer of title, unquestionably would

require the involvement of the trustee. Illinois law maintains that a beneficiary must follow the

express requirements in the relevant land trust agreements for an assignment to be valid. Bantsolas,

377 Ill. App. 3d at 687. The Living Trust on its face does not demonstrate that Lorraine followed

the lodging requirement; while it is certainly possible Lorraine lodged the assignment with the

Land Trust trustee, the support Walsh submitted for her motion does not resolve the issue. If

Lorraine did not notify the trustee of the assignment, this could suggest her intent in making the

gift in section 5.3(c) was not in contemplation of the Land Trust, suggesting she may have been

11 No. 1-24-2362

attempting an improper real property transfer. The converse would also be true, as evidence that

she did lodge it would indicate the Living Trust was made in direct contemplation of the Land

Trust and its requirements. This further demonstrates that determining Lorraine’s intent requires

factual inquiry. See Ball, 2025 IL App 1st 230949, ¶ 31.

¶ 28 The requirement that the Land Trust property be “conveyed” as stated in the beneficiary

provision is another place where the documents do not facially resolve the issues at stake, making

resolution on a section 2-619(a)(9) motion inappropriate. There is some indication in Illinois law

that the assignment of beneficiary interests can constitute a transfer of property under the right

circumstances. See Oak Trust and Savings Bank v. Chicago Title and Trust Co., 129 Ill. App. 3d

250, 252 (1984). In a vacuum, this proposition makes sense because an exclusive beneficiary

interest, like the one Lorraine possessed before the purported assignment, includes the right to the

direct the trustee to sell land trust property or to completely change the beneficiaries of that trust.

See Soltys, 2015 IL App (1st) 140100, ¶ 23; Bantsolas, 377 Ill. App. 3d at 687. But do these general

propositions apply to the purported assignment here? The Land Trust Agreement does not specify

whether an assignment of partial beneficiary interest constitutes a “conveyance,” nor does the

Living Trust specify that the gift to Walsh in section 5.3(c) is intended to satisfy the conveyance

term of the Land Trust Agreement. Without clarity on this intent from the face of the documents,

this is yet another area where additional inquiry is necessary.

¶ 29 Walsh argues that Good should be foreclosed from challenging the validity of the Living

Trust on this appeal because she did not raise this argument below and thus waived it. We reject

this argument for two reasons. First, waiver is a limitation on the parties, not this court, and a facial

review of the Land Trust Agreement and the Living Trust demonstrate that this case was not proper

for resolution through a section 2-619 motion to dismiss. See Galarza v. Direct Auto Insurance

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Co., 2023 IL 129031, ¶ 34. Second, while the record suggests Good failed below to specify the

nature of her challenges to the Living Trust in the detail she uses on this appeal, her response to

Walsh’s motion to dismiss contends that the Living Trust did not effectively alter the Land Trust

Agreement’s beneficiary language. This was sufficient to present the issue of whether Lorraine

successfully amended the Land Trust Agreement through the purported assignment reflected in

the Living Trust.

¶ 30 Walsh next argues Good’s accounting claim was subject to dismissal under section 2-615

because, as a matter of law, one land trust beneficiary cannot be compelled to provide an

accounting to another beneficiary of the same land trust. Generally, whether a claim is subject to

dismissal under section 2-615 is a legal issue we review de novo, though we note the circuit court

did not specifically discuss this argument below. Lutkauskas v. Ricker, 2015 IL 117090, ¶ 29.

Nonetheless, we must consider the claim on this appeal, as Walsh properly raised it below and we

may affirm on any basis in the record. See Zibrat v. City of Chicago, 2025 IL App (1st) 241273,

¶ 34.

¶ 31 We find that Good’s accounting claim survives this specific section 2-615 challenge.

Counter to Walsh’s stance, Illinois case law suggests beneficiaries of Illinois land trusts may seek

an accounting from each other. See Sajdak v. Sajdak, 224 Ill App 3d 481, 490-91 (1992); First

Options of Chicago, Inc. v. Stellings, 215 Ill. App. 3d 1093, 1098 (1991). Accordingly, If Good

can demonstrate the Living Trust assignment was invalid, for whatever reason, and she and Walsh

had equal beneficiary shares in the Land Trust at the time of Lorraine’s death, then Good

potentially would have the right to seek an accounting and subsequent reimbursement from Walsh

for any use and occupancy of the House to Good’s exclusion.

13 No. 1-24-2362

¶ 32 The authorities cited by Walsh to counter this proposition (760 ILCS 3/813.2 (West 2022);

Whalen v. Whalen, 217 Ill. App. 3d 557, 558 (1991)) fail because those authorities stand only for

the general proposition that trustees owe an accounting to beneficiaries, which is not at issue. These

authorities are non-responsive to those Good cites, including First Options, a case the circuit court

only rejected because it found Walsh’s superior interest was facially established by the Living

Trust, not because First Options was inapplicable to land trust beneficiary disputes generally.

¶ 33 Next, Good seeks reinstatement of her claim against Old National, which the circuit court

also dismissed per section 2-619. As an initial matter, we note that the parties do not appear to

dispute that Good misnamed Old National (instead of the Bank) in her complaint. Instead, Good

requests the ability to file an amended complaint on remand, while Old National maintains that

apart from the misnomer issue, Good’s claim against the Bank should be foreclosed entirely due

to Walsh’s superior interest in the House. 2 The circuit court agreed with Old National regarding

the latter argument. Again, our review is de novo. Mercado, 2025 IL 129526, ¶ 19.

¶ 34 We affirm dismissal of Good’s claim against Old National, but find the dismissal should

have been without prejudice, and thus remove the “with prejudice” designation. See Velocity

Investments, LLC v. Alston, 397 Ill. App. 3d 296, 300 (2010). On remand, Good will have the

opportunity to amend her complaint to name the appropriate defendant. The circuit court’s

dismissal with prejudice must be reversed because even conceding Old National’s interpretation

of the Land Trust Agreement is correct and the 20-year forced sale provision was not self-

triggering, Good may be able to demonstrate she shared an equal interest with Walsh and thus may

have had some corresponding right to attempt to trigger the provision. In so finding, we make no

2 We note that Old National also argued Good could not show breach based on the misnomer, an argument also obviated by this order.

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substantive ruling on the proper interpretation of the 20-year sale provision, Good’s right to trigger

the provision if she is found to have a co-equal beneficiary interest with Walsh, the potential

applicability of Heritage, or the impact of the allegation that the House was not placed in the Land

Trust until 1994, after the 1993 expiration of the first 20 years of the Land Trust’s existence. We

simply remand the case and leave it to Good and her attorneys to amend the complaint, and if she

does, for the newly named defendant to respond as it deems appropriate.

¶ 35 CONCLUSION

¶ 36 The Living Trust did not provide affirmative matter per section 2-619(a)(9) to legally

preclude Good’s claims, making dismissal with prejudice inappropriate as to both defendants.

Accordingly, we reverse the circuit court’s dismissal of the claims against Walsh and remand for

additional proceedings. We affirm the dismissal of Good’s claim against Old National based on

misnomer, but we alter the dismissal to without prejudice and grant Good leave to amend.

¶ 37 Affirmed in part; reversed in part; remanded with instructions.