O'Connor v. Harris Bank Barrington, N.A.

611 N.E.2d 537, 242 Ill. App. 3d 68, 183 Ill. Dec. 274, 1993 Ill. App. LEXIS 336
CourtAppellate Court of Illinois
DecidedMarch 17, 1993
Docket2-92-0971
StatusPublished
Cited by14 cases

This text of 611 N.E.2d 537 (O'Connor v. Harris Bank Barrington, N.A.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Connor v. Harris Bank Barrington, N.A., 611 N.E.2d 537, 242 Ill. App. 3d 68, 183 Ill. Dec. 274, 1993 Ill. App. LEXIS 336 (Ill. Ct. App. 1993).

Opinion

JUSTICE McLAREN

delivered the opinion of the court:

Cheryl A. Kirk O’Connor, individually and as guardian of the estate and person of Joel E Kirk II, minor, Lynda M. Kirk Jones, Lisa A. Kirk Staver, and Debra Lee Kirk Madenis, petitioners, appeal from an order denying their petition to remove the Harris Bank Barrington, respondent, as executor of the estate of Joel E Kirk. For the following reasons, we affirm.

Joel F. Kirk died on July 19, 1989, in Sioux City, Iowa, in the performance of his duties during the crash landing of United Air Lines Flight 232. Kirk was survived by his daughters, Cheryl A. Kirk O’Connor, Lisa A. Kirk Staver, and Lynda M. Kirk Jones, and two children who were minors at the time of their father’s death, Debra L. Kirk Madenis and Joel F. Kirk II. O’Connor was appointed guardian of the estate and person of the minor children.

Decedent’s will, dated December 21, 1979, nominated the First National Bank and Trust Company of Barrington, Illinois, and Janet L. Kirk as executors. The bank was nominated as guardian of the estate of any minor child. Janet L. Kirk and decedent were married and divorced on two separate occasions. Their second marriage was dissolved on July 13,1988.

On September 11, 1989, the Harris Bank Barrington, formerly known as the First National Bank and Trust Company of Barrington, Hlinois, filed a petition for probate of will and for letters testamentary. On September 26, 1989, the court admitted Kirk’s will, dated December 21, 1979, to probate and appointed the Harris Bank Barrington as executor of the estate of Joel F. Kirk.

On September 10, 1990, petitioners filed a petition for removal of the Harris Bank Barrington as executor of the estate of Joel F. Kirk. Thereafter, the court issued a citation ordering the Harris Bank Barrington to show cause why it should not be removed as executor of the estate of Joel F. Kirk. On July 24, 1992, the court entered an order granting the executor’s motion for a “directed verdict [sic]” on the basis that petitioners failed to sustain their burden of proving the executor should be removed. The petition for removal was denied and petitioners appealed.

Petitioners first contend that the trial court erred by finding that the executor denied all allegations contained in the petition to remove. The executor responded to each paragraph by denying “any and all allegations of wrong doing, ill-will, or breach of duty.” Petitioners contend that this format was too general as section 2 — 610(a) of the Code of Civil Procedure requires an explicit denial of each allegation of fact contained in the pleading to which it relates. 111. Rev. Stat. 1989, ch. 110, par. 2 — 610(a).

We find petitioners’ contention meritless. Supreme Court Rule 136 allows a pleader to deny all the allegations in a paragraph “without paraphrasing or separately describing each allegation denied.” (134 Ill. 2d R. 136(a).) We have reviewed the executor’s response and find it in compliance with Supreme Court Rule 136(a). Furthermore, the petitioners did not file any motions in the trial court attacking the executor’s response. Issues not raised in the trial court are deemed waived and cannot be argued for the first time on appeal. (In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279.) Therefore, we deem the issue waived.

Next, petitioners contend that the trial court failed to follow proper procedure at the hearing on the petition to remove the executor. At the hearing on the petition for removal, petitioners were required to present evidence in support of their petition for removal. At the close of petitioners’ evidence, the court stated that it was granting the executor’s motion for a “directed verdict [sic],” based on a finding that petitioners failed to sustain their burden of providing evidence establishing reasonable grounds for removal. Thus, the petition to remove the executor was denied.

We note that the trial court stated that it was granting the executor’s motion for a “directed verdict [sic].” Since the hearing was before a judge and not a jury, the executor’s motion is properly termed a motion for a directed finding, or a motion for judgment at the close of plaintiff’s case. (111. Rev. Stat. 1989, ch. 110, par. 2 — 1110.) The trial court should apply a two-step analysis in ruling on this type of motion. First, the trial court determines whether the plaintiff has presented a prima facie case by presenting at least some evidence essential to each element of the cause asserted. (Zannini v. Reliance Insurance Co. of Illinois, Inc. (1992), 147 Ill. 2d 437, 449; Wehde v. Regional Transportation Authority (1992), 237 Ill. App. 3d 664, 675.) If so, the court must weigh the evidence, pass on the credibility of the witnesses, draw reasonable inferences and generally consider the weight and quality of the evidence. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1110; Wujcik v. Gallagher & Henry Contractors (1992), 232 Ill. App. 3d 323, 328.) If the plaintiff has not presented a prima facie case, the trial court should grant the motion and enter judgment in the defendant’s favor. (Zannini, 147 Ill. 2d at 449.) The trial court’s decision to direct a judgment will not be reversed on appeal unless it is against the manifest weight of the evidence. Kokinis v. Kotrich (1980), 81 Ill. 2d 151,154.

Petitioners contend that the procedure followed by the trial court was incorrect because it required petitioners to present a prima facie case for removal by providing evidence establishing reasonable grounds for removal. According to section 23 — 3 of the Probate Act of 1975, proceedings to remove an executor are commenced when the court issues a citation directing the representative to show cause why he should not be removed from office. (111. Rev. Stat. 1989, ch. lHP/a, par. 23 — 3(a).) Contrary to petitioners’ contention, the issuance of a citation does not place the burden of proving fitness to retain office on the executor. Rather, the challenged representative must answer the citation by admitting or denying the allegations in support of removal. If the representative admits the allegations, and the admissions establish a prima facie showing of removal based on reasonable grounds for removal, the representative bears the burden of proving fitness to retain office. If the representative denies the allegations of the citation, as the executor did in this case, the court commences proceedings on the petition for removal by conducting an evidentiary hearing. (See In re Estate of Glenos (1964), 50 Ill. App. 2d 89, 95.) At the hearing, petitioners bear the burden of providing a prima facie case for removal by introducing evidence establishing reasonable grounds for removal. If the petitioners sustain their burden, the burden then shifts to the executor to prove his fitness to retain office. In re Estate of Lucas (1978), 71 Ill. 2d 277, 282.

In this case, the executor was not required to prove its fitness to retain office. The trial court granted the executor’s motion for a directed finding on the basis that petitioners failed to present evidence establishing reasonable grounds for removal. We find the procedure followed by the trial court was consistent with that required by Estate of Lucas, the most recent supreme court case discussing this issue.

Next, petitioners claim that the court erred in failing to remove the executor.

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Bluebook (online)
611 N.E.2d 537, 242 Ill. App. 3d 68, 183 Ill. Dec. 274, 1993 Ill. App. LEXIS 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnor-v-harris-bank-barrington-na-illappct-1993.