Herlehy v. Marie v. Bistersky Trust Dated May 5, 1989

• Court: Appellate Court of Illinois
• Decided: December 23, 2010
• Docket: 1-09-0038, 1-09-1892, 1-09-3295, 1-09-3431 1-10-0070, 1-10-0071 Cons. Rel
• Status: Published

Opinion

SIXTH DIVISION DECEMBER 23, 2010

Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

TIMOTHY HERLEHY and ) Appeal from the MICHAEL HERLEHY, ) Circuit Court of ) Cook County. Plaintiffs-Appellants, ) ) v. ) ) MARIE V. BISTERSKY TRUST DATED ) MAY 5, 1989, and ATG TRUST COMPANY, ) as Trustee, THE ALZHEIMERS DISEASE ) No. 05 CH 15199 AND RELATED DISORDERS ASSOCIATION, ) AMERICAN HEART ASSOCIATION, THE ) RESPIRATORY HEALTH ASSOCIATION OF ) METROPOLITAN CHICAGO (f/k/a The American ) Lung Association of Metropolitan Chicago), CATHOLIC ) CHARITIES OF THE ARCHDIOCESE OF CHICAGO, ) AMERICAN CANCER SOCIETY – ILLINOIS ) Honorable DIVISION, THE ILLINOIS ATTORNEY GENERAL ) Kathleen M. Pantle, and FIRST NATIONAL BANK OF LAGRANGE, ) Judge Presiding. ) Defendants-Appellees. )

JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Justices Cahill and McBride concurred in the judgment and opinion.

OPINION

These consolidated appeals arise from an action for construction of a trust agreement,

breach of a fiduciary duty by a trustee, First National Bank of LaGrange (LaGrange Bank), and a

claim of unjust enrichment on behalf of the trust agreement’s residuary beneficiaries, the

Alzheimer’s Disease and Related Disorders Association, the American Heart Association, the Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

Respiratory Health Association of Metropolitan Chicago,1 Catholic Charities of the Archdiocese

of Chicago, and American Cancer Society (collectively, the Charities).

Plaintiffs Timothy Herlehy (Timothy) and Michael Herlehy (Michael) filed a second

amended complaint alleging that their deceased great-aunt, Marie V. Bistersky (Marie), intended

to amend her trust before her death leaving them with a larger share of her trust assets. Plaintiffs

allege that LaGrange Bank breached its fiduciary duty by failing to amend Marie’s trust agreement

pursuant to her directions and, as a result, the Charities will be unjustly enriched to plaintiffs’

detriment.

The trial court granted LaGrange Bank’s motion to dismiss with prejudice pursuant to

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

(West 2006)), finding that LaGrange Bank had no duty to amend Marie’s trust. The trial court

also granted the Charities’ motion for summary judgment pursuant to section 2-1005 of the Code

(735 ILCS 5/2-1005 (West 2006)), and denied plaintiffs’ cross-motion for summary judgment,

finding that there was no valid amendment to Marie’s trust and, as a result, the Charities were

entitled to their equal portions in the trust’s residuary assets. The trial court further denied

plaintiffs’ motion for reimbursement of attorney fees and found that it lacked jurisdiction over

LaGrange Bank’s motion for reimbursement for its attorney fees.

In this consolidated appeal, plaintiffs appeal claiming the trial court erred in: (1) granting

1 The Respiratory Health Association of Metropolitan Chicago is frequently known as the

American Lung Association of Metropolitan Chicago.

2 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

LaGrange Bank’s motion to dismiss; (2) granting the Charities motion for summary judgment; and

(3) denying their motion for reimbursement for its attorney fees. LaGrange Bank also appeals

claiming that the trial court erred in finding that it lacked jurisdiction to consider LaGrange

Bank’s motion for reimbursement of its attorney fees. We affirm.

BACKGROUND

Timothy originally filed a verified “Complaint for Construction of the Marie V. Bistersky

Trust” (original complaint) and alleged as follows: On May 5, 1989, Marie established a written

trust agreement, identifying herself as settlor and First Illinois Bank of LaGrange as trustee.

Marie’s husband predeceased her and she did not have or adopt any children.

Marie amended her trust agreement six times within 10 years. In each amendment, Marie

amended the specific beneficiaries and the amount of money they were to receive. She also

amended the names of the charities that would receive the residue of the trust. Marie filed her

sixth amendment on December 9, 1999, with Bank One Trust Company, NA (Bank One), which

was the successor trustee at that time. That amendment provided, in pertinent part, as follows:

“THIRD

SECTION 1: Upon the death of the settlor the trustee shall

distribute the trust estate as follows:

(a) Five Thousand Dollars ($5,000.00) to RHONDA

BALLA ***;

(b) Fifteen Thousand Dollars ($15,000.00) to

VICTORIA WANDOLEWSKI ***;

3 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

(c) Fifteen Thousand Dollars ($15,000.00) to BONNIE

STOLARCZYK ***;

(d) Twenty Thousand Dollars ($20,000.00) to

RICHARD BOGACZ ***;

(e) Twenty Thousand Dollars ($20,000.00) to JOSEPH

BOGACZ ***;

(f) Two Hundred Thousand Dollars ($200,000.00) to

the settlor’s grandnephew, TIMOTHY J. HERLEHY ***;

(g) Two Hundred Thousand Dollars ($200,000.00) to

the settlor’s grandnephew, MICHAEL HERLEHY ***;

(h) The balance of the trust estate shall be distributed in

equal shares to the following five (5) charities:

1) ALZHEIMER’S DISEASE AND

RELATED DISORDERS ASSOCIATION ***;

2) AMERICAN HEART

ASSOCIATION ***;

3) THE AMERICAN LUNG

ASSOCIATION OF METROPOLITAN CHICAGO

***;

4) CATHOLIC CHARITIES OF THE

ARCHDIOCESE OF CHICAGO ***;

4 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

5) AMERICAN CANCER SOCIETY

***.”

In formulating an amendment to the trust, the trust agreement provided as follows:

“SEVENTH: The settlor may at any time or times amend or

revoke this agreement in whole or in part by [an] instrument in writing

(other than a will) delivered to the trustee. ”

In a discovery deposition, Timothy testified that Rhonda Balla was Marie’s grand-niece

and Richard and Joseph Bogacz were Marie’s nephews. He further testified that Victoria

Wandolewski was a close friend of Marie, and Bonnie Stolarczyk was Marie’s friend and

accountant.

In 2001, Marie was 89 years old and moved to an assisted living facility in LaGrange.

Timothy testified that he had a close relationship with Marie, assisted her in relocating to the

assisted living facility and with daily tasks and drove her to her doctor’s office. Timothy had a

master’s degree in finance, and at Marie’s request, he reviewed the allocation of her trust assets,

and Marie granted him power of attorney to manage her health care needs.

He testified that following her move to the assisted living facility, Marie told him that she

did not believe that her trust reflected her wishes and that Bank One’s trust officer, Patrice Grant,

was not acting in her best interests. Timothy discovered that 90% of Marie’s trust assets were

invested in stock and told a manager of Bank One’s trust department that such a high stock

allocation was too risky for a settlor of Marie’s age. Timothy also discovered that due to

favorable stock market conditions during the 1990s, Marie’s trust investments had increased in

5 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

value to $1,800,000.2 He further discovered that due to unfavorable market conditions in the

years of 2000 and 2001, the value of the stock decreased in value to approximately $1,200,000.

by mid-2001. Timothy testified that Marie was not aware of the value fluctuation in her trust’s

investments.

Timothy testified that in August of 2001, he and Michael each received a $100,000 gift

from Marie. At that time, Marie had also executed an “amendment to the restatement” of the trust

with the assistance of Charles Jardine, who had been her attorney since she first executed her trust

agreement. The amendment reduced the gifts to Timothy and Michael in Marie’s trust from

$200,000 to $100,000 each.

Additional changes to specific bequests in the amendment included replacing Rhonda Balla

with Carmon Keith, who was Marie’s “caretaker.” Marie signed and delivered the amendment on

August 9, 2001, to Bank One.

Timothy testified that Marie continued to express her dissatisfaction with Bank One as her

trustee and expressed dissatisfaction with Jardine as her attorney, and told Timothy that she

desired to replace them both. She asked Timothy to help her transfer her trust from Bank One to

LaGrange Bank, which had been chosen for its proximity to Marie’s assisted living facility.

Timothy testified that he contacted William Boylan, an attorney he knew, for his assistance in

formulating the transfer.

Boylan testified in a discovery deposition that he met with Marie to discuss her trust.

2 Nothing in the record details Marie’s original trust investment value.

6 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

Boylan testified that he had examined Marie’s trust agreement and informed her that because her

assets had grown in value in the previous years, the majority of her trust assets would be

distributed through the residuary clause to the Charities. Boylan testified that Marie told him that

such a result was not her intent; that she wanted only a “leftover” portion of the trust assets to

pass to the Charities and the stock investments to “go to Tim.” Boylan also informed Timothy

that the majority of Marie’s trust assets would be distributed through the residuary clause to the

Charities and Marie again expressed to Boylan, in Timothy’s presence, that the trust agreement

did not reflect her intent.

Christopher Joyce, an executive vice president and trust officer of LaGrange Bank,

testified in a discovery deposition that he met with Marie and Timothy on January 10, 2002. At

that meeting, Joyce testified that Marie explained to him that she wanted the stock investments be

distributed to Timothy. He also testified that Timothy informed him that Boylan would be

drafting an amendment to Marie’s trust to transfer the trust from Bank One to LaGrange Bank.

Joyce and Boylan both testified in their discovery depositions that they formulated a plan

of action, with Marie’s oral approval, whereby they would first remove Bank One as trustee,

appoint LaGrange Bank as successor trustee and initiate the transfer of Marie’s trust assets to

LaGrange Bank. Second, they would discuss with Marie her concerns regarding her trust

agreement and her investments. Third, they agreed that after all the assets were transferred to

LaGrange Bank, any amendments to Marie’s trust agreement would then be drafted to reflect her

intentions.

Joyce testified that in February he received a document entitled “second amendment to the

7 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

restatement” (second amendment) to Marie’s trust agreement from Boylan. In addition to

appointing LaGrange Bank as successor trustee, the second amendment also provided that, after

Marie’s death and prior to full and final distribution of the trust’s assets, any acting trustee could

be removed by Timothy. The second amendment was dated February 11, 2002, and signed by

Marie. Joyce signed the second amendment on behalf of LaGrange Bank accepting appointment

as successor trustee.

Joyce testified LaGrange Bank received Marie’s trust assets from Bank One at the end of

March 2002 and that the delay in transferring the trust assets was caused by Bank One. Joyce

further testified that LaGrange received the remaining nonstock assets from Bank One in July of

2002, which included an insurance policy and “EE” bonds.

Joyce further testified that LaGrange hired Feldman Securities Group, an investment

advisory firm, to perform an analysis of Marie’s trust assets and present its recommendation for

reallocating her investments. On May 13, 2002, the vice president of Feldman Securities Group,

Brian McNamara, stated in an affidavit that he sent LaGrange an investment recommendation

form (Feldman investment form) that he prepared concerning Marie’s trust assets. McNamara

further stated in his affidavit that he received Marie’s investment information and placed his

recommendations in the Feldman investment form, although he never met with Marie. He further

stated that he was not an attorney and was not asked to prepare a trust amendment for Marie.

McNamara also testified in a discovery deposition that Feldman Securities does not prepare trust

amendments. The following day, Joyce brought the completed Feldman investment form to Marie

for her review, and Marie signed and approved the form.

8 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

The Feldman investment form listed the amount of cash, bonds, and stocks that Marie had

invested in her trust. It also listed McNamara’s proposed reallocation of those investments. The

Feldman investment form further included a “comments” section which stated: “We understand

this trust is for the benefit of [Marie]. These assets will eventually go to her nephews.” Stamped

on the investment recommendation form was the word “Approved” with Marie’s signature

underneath.

Attorney Boylan testified that he received no further contact from Marie, Joyce or

Timothy to draft any further amendments to Marie’s trust agreement. On August 19, 2002, Marie

died.

According to the original complaint, the value of the investments in her trust was

approximately $1,250,000 at the time of her death. Approximately $300,000 were disbursed in

accordance to the specific bequests contained in the trust agreement. The residue of the trust is

approximately $950,000.

In September 2002, Timothy discovered a handwritten note in a phone book located in

Marie’s night table next to her bed. The handwritten noted was undated and unsigned and listed

the following:

“Tim Herlehy Stock

Michael Herlehy 200,000

Rich Bugacz 15,000

J Bugacz 5,000

Vicki 20,000

9 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

Bonnie 15,000

Carmen 5,000”

In October 2002, pursuant to his power enumerated in the trust agreement, Timothy

replaced LaGrange Bank as trustee and appointed Guaranty Trust Company as successor trustee.

Guaranty Trust was later renamed as ATG Trust Company.

Procedural History

On September 7, 2005, Timothy filed his original complaint against ATG Trust Company,

the Charities, and the Illinois Attorney General. Count I was a cause of action for trust

construction and count II for unjust enrichment against the Charities. Timothy alleged that Boylan

acted as Marie’s attorney and LaGrange Bank acted as her trustee. Timothy further alleged that

Boylan was aware of the changes she sought to make to her trust agreement so that only a

relatively small portion would pass through the residuary clause to the Charities.

On November 2, 2006, Timothy filed a verified three-count amended complaint (first

amended complaint) adding his brother Michael as a plaintiff and LaGrange Bank as an additional

defendant. The first amended complaint included nearly identical allegations as the original

complaint; however, plaintiffs also alleged that Marie’s written instructions to LaGrange Bank

were signed and delivered to LaGrange Bank and accepted in writing through the Feldman

investment form. Plaintiffs alleged that if the valid amendment was not effectuated, the failure

was caused by LaGrange Bank’s breach of its fiduciary duty to act upon Marie’s written

instructions.

On July 10, 2007, LaGrange Bank filed a motion to dismiss pursuant to sections 2-

10 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

619(a)(9) and 2-615 of the Code claiming that: (1) it was released from any liability when

Timothy signed a release upon removing LaGrange Bank as trustee; and (2) LaGrange Bank

legally could not draft an amendment to the trust agreement for Marie under the Illinois

Corporation Practice of Law Prohibition Act (Act) (705 ILCS 220/0.01 et seq. (West 2006)),

which prohibited it from drafting amendments to trust agreements.

On November 26, 2007, plaintiffs filed a response arguing that their first amended

complaint is not based on an allegation that LaGrange Bank was required to draft legal

documents, but that it breached its fiduciary duty by failing “to ensure [that] a valid amendment to

the trust was effectuated.”

On January 18, 2008, the trial court entered a written order granting LaGrange Bank’s

motion to dismiss without prejudice. In the written order, the trial court agreed with LaGrange

Bank that pursuant to the Act, LaGrange Bank could not draft legal documents, such as an

amendment to a trust agreement, as LaGrange Bank is a corporation prohibited from practicing

law. The trial court also found that it was Boylan’s duty as Marie’s attorney for estate planning

to draft any amendments to Marie’s trust and that, under the Illinois Rules of Professional

Conduct, Boylan was prohibited from receiving directions from LaGrange to draft amendments to

Marie’s trust agreement. Any amendments had to be directed by the settlor, who was Marie. The

trial court then granted plaintiffs leave to file a second amended complaint.

On February 15, 2008, plaintiffs filed a verified second amended complaint. The verified

second amended complaint included nearly identical allegations as the original complaint;

however, plaintiffs alleged that Marie hired Boylan to undertake only the drafting of the

11 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

amendment to appoint LaGrange Bank as trustee. Plaintiffs further alleged that Boylan was not

employed by Marie or contacted by LaGrange Bank to draft an amendment or meet with Marie in

May 2002, it was LaGrange Bank’s failure to contact an attorney to prepare the amendment to

the trust which resulted in the failure to amend Marie’s trust agreement as she requested.

Specifically, plaintiffs alleged that Marie stated to Joyce that it was her wish that all of her stocks

be bequeathed to Timothy and that Joyce replied on “at least two occasions” to Marie and

Timothy as follows:

“that her directives to bequeath or gift all her stock to Timothy *** would be

accomplished as she intended and that no further steps would be necessary on her

part. [Joyce] assured he would coordinate professionals including contacting

attorneys or investment advisors as needed on her behalf and bring any required

documents to her residence for signature.”

On March 14, 2008, LaGrange Bank again filed its motion to dismiss pursuant to sections

2-619(a)(9) and 2-615 of the Code. LaGrange Bank again argued that it had no duty to draft

amendments to Marie’s trust agreement or retain an attorney to make such amendments.

According to LaGrange Bank’s reply, plaintiffs’ filed a response on April 14, 2008, but that

response is not included in the record.

On June 17, 2008, the trial court entered a written order granting LaGrange Bank’s

motion to dismiss, with prejudice. The trial court found the following inconsistencies between

plaintiffs’ verified first amended complaint and their verified second amended complaint: In the

verified first amended complaint, plaintiffs allege that Boylan acted as her new attorney and she

12 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

directed LaGrange Bank and Boylan to initiate whatever changes necessary to her trust and estate

plan to avoid a windfall to the residuary beneficiaries. Whereas, in the verified second amended

complaint, plaintiffs allege that Marie employed Boylan as her attorney to only undertake the

drafting of an amendment to change LaGrange Bank to the successor trustee.

Further, in the verified first amended complaint, plaintiffs allege that Boylan’s actions were

far broader in scope and that he: (a) corresponded with Bank One to inform it of its removal as

trustee; (b) assured Marie and Timothy that the stocks would be conveyed to Timothy without

any need to act further; (c) would undertake, with LaGrange Bank, the transfer of the assets or

prepare further amendments to the trust as needed to effectuate Marie’s intent; and (d) advised

Marie that additional amendments would not be implemented until the Trust assets had been

transferred from Bank One. Whereas, in the verified second amended complaint, plaintiffs allege

that Boylan was not employed by decedent or contacted by LaGrange Bank to draft an

amendment or meet with Marie in May 2002; and it was LaGrange Bank’s failure to contact an

attorney which resulted in the trust agreement not being amended to reflect Marie’s intent.

The trial court found that because the first amended complaint was verified, the allegations

became judicial admissions and any inconsistent allegations in the second amended complaint

would be ignored. As a result, the trial court concluded that plaintiffs’ allegations in the second

amended complaint against LaGrange Bank mirrored the first amended complaint. The trial court

again found that LaGrange Bank had no duty to advise Marie to make amendments to her trust

and owed no duty to hire an attorney to verify that the trust provisions conformed with Marie’s

intent. Moreover, the trial court found that even if LaGrange Bank voluntarily assumed a duty to

13 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

appoint an attorney for Marie, it was not the failure to make the appointment that caused the

damage, but the failure to amend the trust. The trial court then granted LaGrange Bank’s motion

to dismiss with prejudice.

On November 20, 2008, the Charities filed a motion for summary judgment pursuant to

section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2006)) of the Illinois Code of Civil

Procedure and submitted a supporting memorandum. The Charities claimed that: (1) the Feldman

investment form is not a valid amendment to Marie’s trust as a matter of law; (2) the handwritten

note was not a valid amendment to Marie’s trust as a matter of law; (3) the language contained in

the trust is clear and unambiguous; and (4) the Charities will not be unjustly enriched because the

trust grants to them assets not bequeathed to plaintiffs or other individuals.

On November 24, 2008, LaGrange Bank filed a motion to add language that would

include an Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 1989) finding “that there is no just

reason for delaying either enforcement or appeal or both” of the trial court’s June 17, 2008 order

granting LaGrange Bank’s motion to dismiss with prejudice. On December 2, 2008, the trial court

granted the motion.

On February 13, 2009, plaintiffs filed a response and a cross-motion for summary

judgment against the Charities claiming: (1) the Feldman investment form was a valid amendment

to the trust; (2) the handwritten note found in Marie’s night table after her death also constituted

a valid amendment to the trust; (3) the term “balance” as used in the trust is ambiguous; and (4)

the distribution of the remaining assets of the Marie’s trust to the Charities would result in the

unjust enrichment for the Charities at plaintiffs’ expense. Plaintiffs argued that (1) and (2) above

14 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

comply with the amendment provision in the trust that states: “[t]he settlor may at any time or

times amend or revoke this agreement in whole or in part by [an] instrument in writing (other than

a will) delivered to the trustee.”

On July 7, 2009, after a hearing on the motions, the trial court entered a written order

granting the Charities’ motion for summary judgment and denying plaintiffs’ cross-motion for

summary judgment. The trial court found that the Feldman investment form was not a valid

amendment to Marie’s trust because McNamara, who drafted the Feldman investment form was

not a lawyer and thus if he had drafted an amendment to Marie’s trust his actions would be in

violation of section 2BB of the Consumer Fraud and Deceptive Business Practices Act (Consumer

Fraud Act) (815 ILCS 505/2BB (West 2006)). Moreover, the trial court found that McNamara

could not have acted as a “scrivener”3 to document Marie’s amendment to the trust agreement,

because he never spoke with her; he received instructions and information about the investments

only from Joyce and never intended to prepare an amendment to Marie’s trust, but rather, an

analysis of her investments at the request of LaGrange Bank.

The trial court further found that plaintiffs’ claim of unjust enrichment did not apply

because there was no evidence that plaintiffs were third party beneficiaries to an agreement

between Marie and LaGrange Bank. The trial court concluded that Marie’s trust “unambiguously

3 A “scrivener” is defined as “[a] writer; esp., a professional drafter of contracts or other

documents.” Black’s Law Dictionary 1466 (9th ed. 2009).

15 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

entitles the Charities to its residuary, and found that the Charities have the superior right to the

assets of [Marie’s] Trust.” As a result, the trial court granted the Charities’ motion for summary

judgment and denied plaintiffs’ cross-motion for summary judgment.

On July 22, 2009, LaGrange Bank filed a motion for reimbursement of its attorney fees

claiming it is entitled to attorney fees pursuant to document entitled “Receipt and Approval of

Administration” of Marie’s trust, which was signed by Timothy and delivered to LaGrange Bank.

The document provided that Timothy released and discharged LaGrange Bank from “any

expenses or costs (including legal or other professional fees) in connection with” Marie’s trust

after October 31, 2002. In addition, LaGrange Bank claims it is entitled to attorney fees under

common law because a trustee that is not at fault is entitled to be reimbursed for all of its

expenses properly incurred in administering the trust, citing Kerner v. Peterson, 368 Ill. 59, 81

(1937); Patterson v. Northern Trust Co., 286 Ill. 564, 567 (1919) and Continental Illinois

National Bank & Trust Co. of Chicago v. Sax, 199 Ill. App. 3d 685, 696 (1990). Further,

LaGrange Bank claims “reimbursement” includes legal fees and expenses incurred by a trustee in

defending actions brought by the beneficiaries alleging wrongdoing upon a finding exonerating the

trustee, citing First Midwest Bank/Joliet v. Dempsey, 157 Ill. App. 3d 307, 316 (1987).

On August 12, 2009, plaintiffs filed a motion for reimbursement of its attorney fees and

costs. Plaintiffs are claiming that attorneys who represent parties having an interest in the

construction of a trust agreement are entitled to reasonable fees from the trust estate. Orme v.

Northern Trust Co., 25 Ill. 2d 151 (1962). However, fees are allowable from the trust estate if an

ambiguity exists, which is often defined as “an honest difference of opinion as to the proper

16 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

construction” of the testamentary agreement or ambiguity. In re Estate of Reeve, 393 Ill. 272, 294

(1946); Northern Trust Co. v. Winona Lake School of Theology, 61 Ill. App. 3d 966 (1978).

Plaintiffs claim that a judicial construction of Marie’s trust was required and that there was an

honest difference concerning that construction; therefore, reimbursement of their attorney fees is

proper.

On November 4, 2009, after a hearing on the LaGrange Bank’s motion for attorney fees,

the trial court entered a written order denying LaGrange Bank’s motion for attorney fees for lack

of jurisdiction. The trial court found that LaGrange Bank’s claim for attorney fees was created

when the trial court granted LaGrange Bank’s motion to dismiss on June 17, 2008. LaGrange

Bank then requested the trial court to include Rule 304(a) language in its decision, which the trial

court included on November 24, 2008. LaGrange Bank’s motion for attorney fees was not filed

until six months after plaintiffs filed their notice of appeal. The trial court concluded that

LaGrange Bank’s motion for attorney fees was not filed within 30 days of the entry of the final

order, and as a result, it had lost jurisdiction.

On December 10, 2009, the trial court entered a written order denying plaintiffs’ motion

for attorney fees. The trial court found that no construction of Marie’s trust was necessary to

determine that the Feldman investment form was not an amendment to the trust and thus,

plaintiffs were responsible for their own attorney fees and costs.

ANALYSIS

In this consolidated appeal, plaintiffs claim that the trial court erred in: (1) granting

LaGrange Bank’s motion to dismiss; (2) granting the Charities’ motion for summary judgment;

17 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

and (3) denying their motion for reimbursement for its attorney fees. LaGrange Bank claims that

the trial court erred in finding that it lacked jurisdiction to consider LaGrange Bank’s motion for

reimbursement of its attorney fees.

Cross-Motions for Summary Judgment

First, plaintiffs claim that the trial court erred in granting summary judgment in favor of

the Charities and denying their cross motion for summary judgment. Specifically, plaintiffs claim

that the trial court erred in finding that the Feldman investment form was not a valid amendment

to Marie’s trust because it was drafted by a nonlawyer in violation of section 2BB of the

Consumer Fraud Act.

A trial court is permitted to grant summary judgment only “if the pleadings, depositions,

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735

ILCS 5/2-1005(c) (West 2006). The grant or denial of a summary judgment motion is reviewed

under a de novo standard. Hernandez v. Alexian Brothers Health Systems, 384 Ill. App. 3d 510,

519 (2008). In addition, a trial court’s construction of a trust instrument is also reviewed under a

de novo standard. Altenheim German Home v. Bank of America, N.A., 376 Ill. App. 3d 26, 32

(2007).

In granting the Charities’ motion for summary judgment and denying plaintiffs’ cross-

motion for summary judgment, the trial court found that section 2BB of the Consumer Fraud Act

applied. 815 ILCS 505/2BB (West 2008). Section 2BB provides, in pertinent part, as follows:

“The assembly, drafting, execution, and funding of a living trust document or any

18 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

of those acts by a corporation or a nonlawyer is an unlawful practice within the

meaning of this Act. ***

This Section shall not apply to any State or national bank, State or federal

savings and loan association, savings bank, trust company, or any other

corporation that has received a certificate of authority authorizing the exercise of

trust powers under the Illinois Corporate Fiduciary Act.” 815 ILCS 505/2BB

(West 2008).

In its written order, the trial court determined that, under section 2BB, a trust agreement

that is prepared by a person who is not an attorney is unlawful and thus, void. Applying section

2BB to the facts of the case, the trial court concluded that the Feldman investment form that

plaintiffs’ claim constitutes an amendment to Marie’s trust agreement was drafted by McNamara,

and it is undisputed that McNamara is not an attorney.

Plaintiffs claim that section 2BB is not applicable to this case because LaGrange Bank

presented Marie with the Feldman investment form and LaGrange Bank is exempt because section

2BB “shall not apply to any State or national bank ***[or] trust company.” 815 ILCS 505/2BB

We find nothing in the transcripts of the legislative debates that would support plaintiffs’

contention that an otherwise void trust amendment under section 2BB would become a valid trust

amendment because a bank or trust company presented the amendment to its client, as in this case

when LaGrange Bank gave Marie the Feldman investment form. House Bill 2163 was proposed

because members of the Senate committee were concerned with organizations selling living trust

19 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

documents to consumers without regulation. 88th Ill. Gen. Assem., Senate Proceedings, May 19,

1993, at 105. Senate Amendment No. 1 to House Bill 2163 was adopted to clarify that the bill is

not directed at the day-to-day activities of financial institutions and trust companies, which are

closely supervised by government regulators. 88th Ill. Gen. Assem., Senate Proceedings, May 19,

1993, at 106.

Based on the legislative history, we also find plaintiffs’ argument that applying section

2BB to banks and trust companies would create an undue burden on settlors to determine

whether a trust document received from a bank or trust company was prepared by an authorized

person not persuasive. The amendment to the bill was not to affect the daily activities of those

financial institutions, and Joyce testified that LaGrange Bank did not draft trust documents on

behalf of its clients and did not retain an attorney to do so. See 705 ILCS 220/0.01 (West 2008)

(prohibiting corporations from practicing law, directly or indirectly).

Plaintiffs further claim that section 2BB is not applicable to this case because it is a

criminal statute which requires intent and there is no evidence of criminal intent in the preparation

and execution of the Feldman investment form. We also find this argument not persuasive. Trust

agreements are construed in the same manner as contracts and subject to the same limitation that

they will not be enforced if contrary to public policy. See In re Estate of Mendelson, 298 Ill.

App. 3d 1, 3 (1998). A contract that violates a valid statute is void. Kim v. Citigroup, Inc., 368

Ill. App. 3d 298 (2006).

The trial court also relied on Landheer v. Landheer, 383 Ill. App. 3d 317 (2008), a

decision from the Third District of the Illinois Appellate Court, in granting summary judgment in

20 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

the Charities’ favor and against plaintiffs. We find Landheer instructive in our analysis here. In

Landheer, an ailing father asked one of his three sons to draft a document to amend his trust

agreement. Defendant son testified that he spoke with his father and took notes on what his father

wanted amended in the trust agreement. Defendant further testified that he “did not wait for [his

father’s] attorney” because his father had asked him to draft the document “right away” as he was

concerned about his failing health. In drafting the document, defendant decided what language to

use and even added some details of his own. A “short time” after discussing the matter, defendant

brought the document to his father’s home for his father to review and sign. Landheer, 383 Ill.

App. 3d at 319-20.

Defendant’s brother, one of the plaintiffs, was present at the father’s house along with a

third party. The father told defendant that the document “was what he wanted.” The father then

signed the document and defendant’s brother and the third party signed the document as

witnesses. A few days later defendant took the document to the father’s attorney. The father died

approximately a week later. Landheer, 383 Ill. App. 3d at 320.

Defendant’s two brothers brought a suit to have a trial court enter a declaratory judgment

that the disputed document drafted by defendant was not an effective amendment to their father’s

trust. Defendant filed a counterclaim to the contrary. Plaintiffs filed a motion to dismiss

defendant’s counterclaim pursuant to section 2-619 of the Code, asserting that the disputed

document is void because it was prepared by a person who is not an attorney in violation of

section 2BB of the Consumer Fraud Act. The trial court granted plaintiffs’ motion and defendant

appealed. Landheer, 383 Ill. App. 3d at 319-20.

21 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

The appellate court found that the statutory language of section 2BB of the Consumer

Fraud Act was clear and unambiguous and that it “expressly prohibits the assembly, drafting,

execution, and funding of a living trust document by a nonlawyer” including a document that

“amends a living trust for another person.” Landheer, 383 Ill. App. 3d at 320. Given the clear

language of the statute, the court concluded that the document drafted by the defendant violated

section 2BB of the Consumer Fraud Act and did not constitute a valid amendment to his father’s

trust agreement because defendant was not a lawyer. Landheer, 383 Ill. App. 3d at 320.

Here, as in Landheer, the Feldman investment form, which plaintiffs’ claim constitutes an

amendment to Marie’s trust agreement, was drafted by a nonlawyer, McNamara, in violation of

section 2BB of the Consumer Fraud Act. Based on the reasoning in Landheer, the Feldman

investment form is not a valid trust amendment.

Plaintiffs claim that Landheer is distinguishable because the defendant who drafted the

alleged amendment in Landheer would benefit if the amendment was determined to be valid,

whereas Joyce and McNamara would receive no benefit if the amendment was determined to be

valid. However, plaintiff does not show, and we cannot find, any reference in the Landheer

decision where the court even considered the concept of benefit in its holding that section 2BB

expressly prohibits a nonlawyer from drafting trust amendments.

Here, there are distinguishing factors that support the trial court’s conclusion that the

Feldman investment form was not a valid amendment. In Landheer, the father requested that his

defendant son create an amendment to his trust agreement. Here, Marie did not hire LaGrange

Bank to amend her trust agreement or to create the Feldman investment form. LaGrange Bank,

22 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

acting in its role as trustee, hired McNamara to prepare a document to advise Marie on changing

her trust investments. McNamara never spoke with Marie and the only information he received

concerning the trust investments was from Joyce. McNamara stated that he has never prepared a

trust amendment, that he and his company do not prepare trust amendments, and that he never

intended to prepare an amendment to Marie’s trust. In addition, there is no evidence that Joyce

acted as Marie’s lawyer or agent in giving the Feldman investment form to Marie for her

approval, or that Joyce intended the form to be an amendment to the trust when he gave it to

Marie for her approval. Joyce testified that he does not draft legal documents and that LaGrange

does not offer its clients an attorney to do so.

Plaintiffs further claim, as did the defendant in Landheer, that McNamara acted as a

“scrivener” because the Feldman investment form “perfectly reflected the intentions that [Marie]

had expressed so often.” We find this argument not persuasive, as did the Landheer court.

In Landheer, the appellate court found that although the son spoke with his father and the

father approved the drafted amendment was “what he wanted.” The court rejected defendant’s

“scrivener” argument because, in drafting the document, the son decided what language to use

and even added some details of his own. Landheer, 383 Ill. App. 3d at 322.

In this case, it is undisputed that McNamara never spoke with Marie and that any

information he received concerning Marie’s investments was received second-hand from Joyce.

He also testified that he could not recall Joyce’s exact language when he wrote in the comments

section of the Feldman investment form. Moreover, McNamara stated that he had no idea that he

was preparing a trust amendment, and therefore, could not be a “scrivener.”

23 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

In addition, plaintiffs argue that the Feldman investment form, which was signed by Marie,

complies with the trust’s requirement that Marie, as settlor, may amend the trust “by instrument in

writing (other than a will).” Black’s Law Dictionary defines an “instrument” as a “written legal

document that defines rights, duties, entitlements, or liabilities, such as a contract, will,

promissory note, or share certificate.” Black’s Law Dictionary 869 (9th ed. 2009).

Plaintiffs cite Whittaker v. Stables, 339 Ill. App. 3d 943 (2003), for support. At issue in

Whittaker was whether a letter from settlor to her daughter which amended the terms of her trust

constituted a signed instrument. The daughter admitted to destroying the letter; however, the

settlor’s daughter-in-law testified to the contents of the letter. In deciding whether the letter

constituted a signed instrument, the Second District of the Illinois Appellate Court did not

consider this issue because it “assume[d] that the writing possessed the wording necessary for the

status of a signed instrument.” Whittaker, 339 Ill. App. 3d at 947.

In this case, unlike in Whittaker, we do not need to assume any wording in the Feldman

investment form because it is included in the record. Plaintiff does not point to any wording in the

Feldman investment form that “defines rights, duties, entitlements, or liabilities” that would make

it an “instrument.” Furthermore, there is no evidence that the Feldman investment form

constitutes a “legal document.” The Feldman investment form proposed a reallocation of Marie’s

stock investments. In addition, Joyce and McNamara both testified that the Feldman investment

form was created to recommend to Marie how to reallocate her stock investments. They further

testified that her signature under the word “approved” on the Feldman investment form reflects

her approval of the reallocation recommendation. See, e.g., Northwestern University v.

24 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

McLoraine, 108 Ill. App. 3d 310, 318 (1982) (concluding an unsigned scrap of paper and a list of

names is not a formal legal document to constitute an instrument in writing for amending a trust

agreement).

Plaintiffs further argue that although Joyce and McNamara could not remember Marie’s

exact instructions, the Feldman investment form “perfectly reflected” Marie’s intent as is, and thus

is a valid amendment to the trust. We do not find any evidence to support that argument. Under

Illinois law, a trust must be specific as to the beneficiaries and “how the trust is to be performed.”

Eychaner v. Gross, 202 Ill. 2d 228, 253 (2002); see also Restatement (Third) of Trusts §22(1)(b)

(2003) (stating that a trust must “reasonably identify the trust property, the beneficiaries”). In

other words, it must show who the beneficiaries are and what each one will receive. The

comments section of the Feldman investment form states that the stock “assets will eventually go

to her nephews.” However, the Feldman investment form does not identify the “nephews” who

are to receive the stock assets. At the time of Marie’s death, she had two living nephews, Richard

and Joseph Bogacz. Even if “nephews” meant grandnephews, as plaintiffs claim, then the Feldman

investment form contradicts plaintiffs’ allegations in the second amended complaint that Marie

wanted the stock assets to “go to Tim,” or reflect Boylan’s or Joyce’s recollections that the stock

assets were to be bequeathed to Timothy individually. Furthermore, the “comments” section of

the Feldman investment form does not specify the proportion each “nephew” was to receive.

In sum, there is no dispute that the Feldman investment form was prepared by an

nonlawyer in violation of section 2BB of the Consumer Fraud Act and as a result is void. Further,

the Feldman investment form is not a valid amendment to the trust even if it had been prepared by

25 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

a lawyer for the reasons stated. Accordingly, the trial court properly granted the Charities motion

for summary judgment and properly denied plaintiffs’ cross motion for summary judgment.

Plaintiffs’ Motion to Dismiss LaGrange Bank

Second, plaintiffs claim that the trial court erred in granting LaGrange Bank’s motion to

dismiss plaintiffs’ second amended complaint pursuant to sections 2-619(a)(9) and section 2-615

because LaGrange Bank failed to either retain an attorney to draft the amendment to the trust or

contact or appoint an attorney for Marie to do so.

Section 2-619(a)(9) permits involuntary dismissal 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 2008). In a motion to dismiss under section 2-619(a)(9), all well-

pleaded facts and reasonable inferences are accepted as true for the purpose of the motion and the

motion should be granted only if the plaintiff can prove no set of facts that would support a cause

of action. Feltmeier v. Feltmeier, 207 Ill. 2d 263, 277-78 (2003). The pleadings, depositions,

and affidavits must be construed “in the light most favorable to the nonmoving party.” In re

Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997); Fuller Family Holdings, LLC v. Northern

Trust Co., 371 Ill. App. 3d 605, 613 (2007). When considering an appeal from a section 2-619

dismissal, reviewing courts must determine whether a genuine issue of material fact exists which

should have precluded dismissal and, if no such issue exists, whether dismissal was proper as a

matter of law. Lang v. Silva, 306 Ill. App. 3d 960, 970 (1999). Our review of dismissals under

section 2-619 of the Code is de novo. Van Meter v. Darien Park District, 207 Ill. 2d 359, 368

(2003); Lang, 306 Ill. App. 3d at 970 (citing Spiegel v. Hollywood Towers Condominium Ass’n,

26 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

283 Ill. App. 3d 992, 998 (1996)).

A motion to dismiss under section 2-615 of the Code is a challenge to the legal sufficiency

of the complaint. 735 ILCS 5/2-615 (West 2008). In reviewing the legal sufficiency of a

complaint, we regard all well-pled facts as true and draw all reasonable inferences in favor of the

non-moving party. Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003); Iseberg v. Gross, 366 Ill. App.

3d 857, 860 (2006). We construe the complaint liberally and dismiss only when it appears that

plaintiffs cannot recover under any set of facts. Wakulich, 203 Ill. 2d at 228; Iseberg, 366 Ill.

App. 3d at 861. The standard of review from the granting of a section 2-615 motion to dismiss is

de novo. Wakulich, 203 Ill. 2d at 228; Flournoy v. Ameritech, 351 Ill. App. 3d 583, 586 (2004)

(citing Krilich v. American National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563 (2002)).

As an initial matter, the parties argue whether that the trial court properly found

inconsistencies between their verified first amended complaint and their verified second amended

complaint. Specifically, LaGrange Bank argues that in plaintiffs’ first verified amended complaint,

plaintiffs allege that Boylan was Marie’s estate planning attorney. However, in the verified second

amended complaint plaintiffs allege that Boylan was only hired to amend the trust agreement and

appoint LaGrange Bank as successor trustee. Plaintiffs argue that the two complaints are not

inconsistent but, rather, show that Boylan’s employment was limited in scope to only amending

the trust agreement to appoint LaGrange Bank as trustee. Plaintiffs further argue that because

Boylan was not employed to make any further amendments, the duty to amend Marie’s trust

shifted to LaGrange Bank.

We need not decide that issue. Even if, in construing all pleadings, depositions, and

27 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

affidavits in the light most favorable to plaintiffs, we agree with plaintiffs that the allegations in the

two amended complaints are not inconsistent, we would still conclude that LaGrange Bank had

no duty to amend the trust and that the trial court properly granted the motion to dismiss.

To state a cause of action for breach of a fiduciary duty, a plaintiff must allege and

ultimately prove: (1) a fiduciary duty on part of the defendant; (2) a breach of that duty; (3)

damages; and (4) a proximate cause between the breach and the damages. Martin v. Heinold

Commodities, Inc., 163 Ill. 2d 33, 53 (1994); Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d

722, 747 (2009). “ ‘ “A trustee owes a fiduciary duty to a trust’s beneficiaries and is obligated to

carry out the trust according to its terms and to act with the highest degrees of fidelity and utmost

good faith.” ’ ” (Emphasis added). Fuller Family Holdings, LLC v. Northern Trust Co., 371 Ill.

App. 3d 605, 615 (2007) (quoting In re Estate of Muppavarapu, 359 Ill. App. 3d 925, 929

(2005), quoting Giagnorio v. Emmett C. Torkelson Trust, 292 Ill. App. 3d 318, 325(1997)). See

also Stuart v. Continental Illinois National Bank & Trust Co., 68 Ill. 2d 502, 523 (1977);

Chicago Title & Trust Co. v. Chief Wash Co., 368 Ill. 146, 155 (1938); Paul H. Schwendener,

Inc. v. Jupiter Electric Co., 358 Ill. App. 3d 65, 74 (2005); Restatement (Second) of Trusts §2,

Comment b (1959); Restatement (Second) of Trusts §170 (1959).

In the case at bar, plaintiffs do not cite any authority to support their claim that LaGrange

Bank, as trustee, owed them a duty to either: appoint or consult an attorney concerning amending

Marie’s trust; communicate with Marie concerning amending her trust; or “institute adequate

follow-up procedures” to amend Marie’s trust. In addition, having found that the Feldman

investment form is not a valid amendment to Marie’s trust agreement, plaintiffs also do not cite

28 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

any terms in Marie’s trust agreement that impose a legal duty for LaGrange Bank to act to amend

the trust agreement.

Further, LaGrange Bank, a corporation, is prohibited from practicing law and thus, is

prohibited from drafting trust agreements. 705 ILCS 220/0.01 et seq. (West 2008). Joyce also

testified that LaGrange Bank does not draft legal documents for its clients and does not employ

an attorney to do so. The duty to draft an amendment was Marie’s obligation. Boylan was her

attorney for estate planning at the time and was never told by Marie to prepare an amendment.

This duty does not fall to LaGrange Bank because LaGrange Bank was aware that Marie intended

to amend her trust and may have not had an attorney that she trusted to effectuate that

amendment. It is equally possible that she did not want Boylan or any attorney to amend her trust

at the point in time of her death.

Plaintiff further claims that LaGrange Bank voluntarily assumed a duty because Joyce

“assured [Marie] he would coordinate professionals including contacting attorneys *** as needed

on her behalf ***.” A duty associated with a voluntary undertaking is limited to the extent of the

undertaking. Rice v. White, 374 Ill. App. 3d 870, 886 (2007). Thus, according to plaintiffs’

second amended complaint, LaGrange Bank’s breach of its voluntary duty is that it failed to

contact or retain an attorney on her behalf.

However, to state a cause of action for breach of a fiduciary duty, plaintiffs must show

that the breach is a proximate cause of the damages. Although proximate cause is generally a

question of fact for the trier of fact, a court may determine a lack of proximate cause as a matter

of law where the facts fail to establish both a “cause in fact” and “legal cause.” Rice, 374 Ill. App.

29 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

3d at 888 (citing First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-58 (1999)). A

defendant’s conduct is a “cause in fact” of the plaintiff’s damages if the damages would not have

occurred absent defendant’s conduct. Abrams v. City of Chicago, 211 Ill. 2d 251, 258 (2004). A

defendant’s conduct is a “legal cause” of a plaintiff’s damages if a reasonable person would find

the damages as a foreseeable or likely result of defendant’s conduct. Abrams, 211 Ill. 2d at 258.

In the case at bar, Joyce’s failure to contact or retain an attorney is not the cause in fact or

legal cause of plaintiffs’ damages. Rather, the failure to amend Marie’s trust with a valid

amendment that would show her intentions was the proximate cause of plaintiff’s damages.

In sum, dismissal of plaintiffs’ second amended complaint was proper under section 2-

619(a)(9) of the Code because LaGrange Bank is prevented from practicing law under the

Corporate Practice of Law Prohibition Act (705 ILCS 220/0.01 (West 2008)). Dismissal was

also proper under section 2-615 because plaintiffs failed to state a cause of action for breach of

fiduciary duty because LaGrange Bank had no duty to plaintiffs and even if LaGrange Bank

assumed a voluntary duty, it was not the proximate cause of plaintiffs’ damages as a matter of

law.

Plaintiff’s Motion for Attorney Fees

Third, plaintiffs request that we reverse the trial court’s motion denying plaintiffs’ motion

for reimbursement of attorney fees and costs if we find that the trial court erred in granting

summary judgment in favor of the Charities and against plaintiffs or granting LaGrange Bank’s

motion to dismiss. Having affirmed the trial court’s decision on those two issues, we must also

affirm the trial court’s denial of plaintiffs’ motion for reimbursement of attorney fees and costs

30 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

because we have not reversed the trial court. We need not decide whether plaintiffs would have

received reimbursement of attorney fees and costs had we reversed the trial court because that did

not occur here.

LaGrange Bank’s Motion for Attorneys Fees

LaGrange Bank claims the trial court erred when it found that it lacked jurisdiction to hear

LaGrange Bank’s motion for reimbursement of attorney fees because the motion was untimely

filed. Whether a motion was timely filed and whether a court has jurisdiction to hear such a

motion is a question of law which we review under a de novo standard. See In re Estate of Ahern,

359 Ill. App. 3d 805, 809 (2005); In re Estate of Gebis, 186 Ill. 2d 188, 192 (1999)

In this case, the trial court granted LaGrange Bank motion to dismiss on June 17, 2008

with prejudice. On December 2, 2008, the trial court granted LaGrange Bank’s request to insert

Rule 304(a) language in the June 17 order, stating that the order is a final order and “[t]here is no

just reason for delaying either enforcement or appeal or both.” On July 22, 2009, LaGrange Bank

then filed a motion for attorney fees. The trial court found that, to be timely, LaGrange Bank’s

motion should have been filed within 30 days of December 2, 2008, when the trial court inserted

language pursuant to Rule 304(a) into the June 17, 2008, order.

Illinois Supreme Court Rule 304(a) provides that “an appeal may be taken from a final

judgment as to one or more but fewer than all of the parties or claims only if the trial court has

made an express written finding that there is no just reason for delaying either enforcement or

appeal [or both].” Ill. S. Ct. R. 304(a) (eff. Jan. 1, 1989). An order is “final” if it either terminates

the litigation between the parties on the merits or disposes of the rights of the parties either on the

31 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

entire controversy or on separate and definite part of it. Ariola v. Nigro, 13 Ill. 2d 200, 207

(1958).

A circuit court retains jurisdiction for 30 days after its entry of a final order or judgment.

Brewer v. National R.R. Passenger Corp., 165 Ill. 2d 100, 105 (1995); Suburban Auto

Rebuilders, Inc. v. Associated Tile Dealers Warehouse, Inc., 388 Ill. App. 3d 81, 96 (2009). A

circuit court has jurisdiction to entertain a motion for attorney fees filed within 30 days of the

entry of a final judgment without regard to a previously filed notice of appeal. John G. Phillips &

Associates v. Brown, 197 Ill. 2d 337, 343 (2001); Marsh v. Evangelical Covenant Church of

Hinsdale, 138 Ill. 2d 458, 468-69 (1990); Servio v. Paul Roberts Auto Sales, Inc., 211 Ill. App.

3d 751, 760 (1991). In addition, a circuit court has jurisdiction to address a timely-filed motion

for attorney fees regardless of whether the request is considered to be part of the original action

or collateral to the original claim. John G. Phillips & Associates, 197 Ill. 2d at 343; Marsh, 138

Ill. 2d at 460; Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 453 (2000);

Berger v. Matthews, 216 Ill. App. 3d 942, 944 (1991); Servio, 211 Ill. App. 3d at 759-60.

LaGrange Bank argues that its motion for attorney fees was timely filed because the

motion is not a posttrial motion pursuant to section 2-1203 of the Code, and thus, the 30-day

limitation does not apply. See Brown & Kerr, Inc. v. American Stores Properties, Inc., 306 Ill.

App. 3d 1023, 1028 (1999); F.H. Prince & Co. v. Towers Financial Corp., 266 Ill. App. 3d 977,

983 (1994) (“a claim for attorney fees is not a post-trial motion within sections 2-1202 and 2-

1203 of the Code *** nor, even if viewed as a motion to modify the judgment, is it a post-trial

motion ‘directed against the judgment’ within the meaning of Supreme Court Rule 303(a).”).

32 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

Plaintiffs agree that a motion for reimbursement is not a posttrial motion, but argue that LaGrange

Bank is still subject to a 30-day limitation to file its motion.

Section 2-1203 provides that “[i]n all cases tried without a jury, any party may, within 30

days after entry of the judgment *** file a motion for a rehearing, or a retrial, or a modification of

the judgment or to vacate the judgment or for other relief.” 735 ILCS 5/2-1203 (West 2008).

We find LaGrange Bank’s argument not persuasive. LaGrange Bank’s argument implies

that if a motion is not a posttrial motion pursuant to sections 2-1202 or 2-1203, then the trial

court retains jurisdiction without limitation. A trial court has jurisdiction over the underlying

action until “30 days after entry of that final judgment [citations]; or 30 days after ruling on the

last pending post-trial motion [citation].” F.H. Prince, 266 Ill. App. 3d at 988; People v.

Flowers, 208 Ill. 2d 291, 303 (2003) (trial court loses jurisdiction over a matter 30 days after

entry of final judgment, unless a timely postjudgment motion is filed).

In the case at bar, the trial court’s June 17, 2008, order became a final order on December

2, 2008, when the trial court inserted Rule 304(a) language making it a final and appealable order.

As a result, the final judgment terminated the litigation between LaGrange Bank and plaintiffs.

See Glickman v. Teglia, 388 Ill. App. 3d 141, 151 (2009) (when all claims against a party are

dismissed that party is no longer before the trial court once the 30-day period after the dismissal

passes). Thus, LaGrange Bank had until January 2, 2008, 30 days after the order became a final

judgment, excluding the January 1, 2008, holiday, in which to file its motion for attorney fees.

However, LaGrange Bank did not file its motion for attorney fees until approximately six months

later, on July 22, 2009. Therefore, the trial court correctly found that it lacked jurisdiction to

33 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

consider that motion because it was untimely filed.

LaGrange Bank next argues that a trial court retains post-judgment jurisdiction to

determine matters collateral or incidental to the judgment, such as a motion for attorney fees. In

re Estate of Denaro, 112 Ill. App. 3d 872, 878 (1983) (“The general rule is that the filing of an

appeal divests the trial court of jurisdiction; however, the trial court retains jurisdiction to

determine matters collateral or incidental to the judgment. [Citation]. Collateral or supplemental

matters include those lying outside the issues in the appeal or arising subsequent to delivery of the

judgment appealed from.”). LaGrange Bank further argues that the time when a trial court loses

jurisdiction to hear collateral or incidental matters to the judgment is not until “30 days past the

date of the last order or judgment was issued in the case.” Gaynor v. Walsh, 219 Ill. App. 3d 996,

1002 (1991). LaGrange Bank then concludes that its motion for attorney fees was timely filed

within 30 days of the last order entered in the case, the trial court’s order granting summary

judgment in favor of the Charities and against plaintiffs on July 7, 2009.

We also find this argument not persuasive. In Gaynor, a plaintiff filed a complaint against

a defendant alleging wrongful transfer of partnership assets. On September 12, 1990, the trial

court granted defendant’s motion for summary judgment. On September 20, the plaintiff filed a

posttrial motion to reconsider which was denied on November 15, 1990. None of the orders

contained Rule 304(a) language. On December 10, 1990, within 30 days of the trial court’s ruling

on plaintiff’s posttrial motion, the defendant filed a motion for attorney fees pursuant to Supreme

Court Rule 137 (Ill. S. Ct. R. 137 (eff. Aug. 1, 1989)). The Gaynor court found that the trial

court retained jurisdiction over the motion for attorney fees because defendant filed the motion

34 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

within 30 days of the trial court’s order denying plaintiff’s posttrial motion and that order did not

contain Rule 304(a) language. Gaynor, 219 Ill. App. 3d at 998.

Similarly, in F.H. Prince, a plaintiff’s complaint sought entry of a judgment against a

defendant in an amount of the principal and interest due on a settlement agreement plus attorney

fees and costs. After a jury trial, the trial court entered a judgment for plaintiffs on February 6,

1991, for the principal and interest due. On February 25, 1991, the plaintiff filed a petition for an

award of interim attorney fees based upon a fee shifting provision in the settlement agreement. On

April 4, 1991, the trial court entered a judgment for attorney fees in favor of plaintiff. On the

same day, the defendant filed a posttrial motion, which the trial court denied on May 8, 1991. The

following day, the plaintiff filed a second petition for attorney fees covering the period through

May 8. On May 13, 1991 the defendant filed a notice of appeal from the orders and judgments

entered through May 8, 1991. The trial court held that it had jurisdiction to hear the plaintiff’s

motion for attorney fees file on May 9, 1991 and entered judgment on that motion. F.H. Prince,

266 Ill. App. 3d at 979-80.

The appellate court, which relied on Gaynor in its decision, found that the petition for

attorney fees was a timely filed claim because it was filed one day after the trial court’s denial of

defendant’s posttrial motion, “well within the 30-day period following that denial, and while the

[trial] court retained jurisdiction to set aside any final judgment or order.”

Although these two cases are distinguishable from the case at bar because: (a) they did not

involve multiple parties; (b) none of the orders contained language pursuant to Rule 304(a) and

(c) motions for attorneys fees was a sanction pursuant to Rule 137 (Ill. S. Ct. R. 137 (eff. Aug. 1,

35 Nos. 1-09-0038; 1-09-1892; 1-09-3295; 1-09-3431; 1-10-0070; 1-10-0071 (cons.)

1989)), we do not find that they support LaGrange Bank’s argument that a trial court retains

jurisdiction over a dismissed party’s claims until all claims in the litigation are resolved.

In addition, the cases LaGrange Bank cites for additional support of its argument are

distinguishable from the case at bar because the motions for attorney fees in those cases were all

filed within 30 days of the final judgment which allowed the trial court to retain post-judgment

jurisdiction. See, e.g., Town of Libertyville v. Bank of Waukegan, 152 Ill. App. 3d 1066, 1072

(1987) (trial court retained jurisdiction to hear claim for attorney fees which was filed within 30

days of the final judgment); Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443,

453 (2000) (trial court retained jurisdiction to hear claim for tax costs and motion filed within 30

days of final judgment). American National Bank & Trust Co. of Chicago v. Bus, 212 Ill. App. 3d

133, 138 (1991) (trial court retained jurisdiction to hear motion for Rule 137 sanctions which was

filed within 30 days of judgment).

In the case at bar, the June 17, 2008 order dismissing LaGrange Bank from the litigation

became a final judgment on December 2, 2008, when the trial court inserted into that order the

Rule 304(a) language at LaGrange Bank’s request. LaGrange Bank then had a 30-day period

following that denial to file its motion for reimbursement of attorney fees, but it failed to do so.

Accordingly, we find the trial court correctly found that it lacked jurisdiction to hear that motion.

CONCLUSION

For the foregoing reasons we affirm the judgment of the circuit court of Cook County.

Affirmed.