Centrue Bank v. Voga ( 2020 )

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Appellate Court Date: 2020.12.30
13:09:38 -06'00'
Centrue Bank v. Voga, 2020 IL App (2d) 190108Appellate Court CENTRUE BANK and LISA MADIGAN, in Her Official Capacity as
Caption Attorney General of the State of Illinois, Plaintiffs, v. LYLE L.
VOGA, LARRY L. VOGA, LINDA JOAN FRISBEE, LOIS
ENGLERT, SHIRLEY BUSCH, and ROBERT DUFAU, Defendants
(Lyle L. Voga, Defendant and Counterplaintiff-Appellant; Larry L.
Voga, Defendant and Counterdefendant; Linda Joan Frisbee and Lois
Englert, Defendants and Counterdefendants-Appellees).
District & No. Second District
Nos. 2-19-0108, 2-19-0550 cons.
Filed September 24, 2020
Decision Under Appeal from the Circuit Court of Kendall County, No. 08-CH-0871;
Review the Hon. Robert P. Pilmer, Judge, presiding.
Judgment No. 2-19-0108, Reversed and remanded.
No. 2-19-0550, Vacated.
Counsel on David R. Haskins, of Law Office of David R. Haskins, LLC, of
Appeal Aurora, for appellant.
Julie L. Cibulskis, of Speers, Reuland & Cibulskis, P.C., of Aurora,
for appellee Lois Englert.
Richard J. Tarulis and Elizabeth R. Bacon, of Brooks, Tarulis &
Tibble, LLC, of Naperville, for other appellee.
Panel JUSTICE BIRKETT delivered the judgment of the court, with
opinion.
Justices Zenoff and Brennan concurred in the judgment and opinion.
OPINION
¶1 Defendant and counterplaintiff Lyle L. Voga appeals several rulings of the circuit court of
Kendall County concerning a trust amendment executed by defendant and counterdefendant
Linda Joan Frisbee for the benefit of defendant and counterdefendant Lois Englert. Lyle argues
that, because Linda was not authorized to amend the trust, the trial court erred in denying his
motion for partial summary judgment on count V of his amended countercomplaint. We
reverse the trial court’s dismissal of that count as well as its subsequent judgments stemming
therefrom, and we remand for further proceedings consistent with this opinion.
¶2 I. BACKGROUND
¶3 This case comes before us for the second time. The events leading up to Centrue Bank v.
Voga, 2017 IL App (2d) 160690 (Voga I) originated from a revocable living trust (Trust)
executed by Lyle’s late father, Leroy Voga, in January 2003 for the benefit of his children:
Lyle, Linda, Lois, and defendant and counterdefendant Larry Voga. The Trust designated
Leroy as trustee while naming Linda as primary successor trustee.
¶4 Pursuant to the Trust, Lyle, Linda, and Larry would all receive parcels of real property
upon Leroy’s death. The Trust also mandated that Shirley Busch, Leroy’s companion, would
receive a life estate in Leroy’s Arizona residence. While the Trust did not gift Lois any real
estate, it did provide that all four of Leroy’s children would each receive a 25% share of the
residue of his estate.
¶5 Leroy executed a durable power of attorney (Power of Attorney) in January 2003, which
designated Linda as his agent. Section 9 of the Power of Attorney contained the following
language:
“b. Amend, Revoke or Exercise Powers Over Existing Trusts
Other than a power that would constitute a general power of appointment under
Section 2041 of the Internal Revenue Code of 1986, as amended, I give my agent the
power to amend, revoke and/or exercise any and all other powers I could exercise under
the terms of any trust of which I am a Trustor.”
However, the Power of Attorney failed to specifically name any trust that Linda was entitled
to amend.
¶6 On September 25, 2006, Linda executed an amendment to the Trust (Amendment). The
Amendment created a new bequest for Lois upon Leroy’s death, whereby she would receive
“an amount of cash *** equal to the average fair market value by certified appraisal of the farm
real estate gifted to [Linda] *** and the farm real estate gifted to [Larry].” The Amendment
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retained its previous real property bequests as well as the siblings’ residuary interests in
Leroy’s estate.
¶7 In February 2007, the siblings executed an agreement designed to make themselves
cotrustees of the Trust. As a result of this agreement, plaintiff Centrue Bank (Centrue) filed an
interpleader action (see 735 ILCS 5/2-409 (West 2006)) against the siblings, Shirley, and a
third party who is no longer involved in these proceedings. In its complaint, Centrue alleged
that Lyle and Larry—acting under their perceived capacity as cotrustees—demanded that
Centrue turn over certain Trust property that it held. Because Centrue doubted the validity of
the cotrustee agreement, it consequently sought direction from the court concerning the
disposition of the property.
¶8 In August 2010, Lyle filed a 13-count countercomplaint against Larry, Lois, and Linda.
Larry and Lois answered the countercomplaint and filed affirmative defenses before Lyle filed
an additional count against Linda.
¶9 In June 2011, Lyle filed a motion under section 2-615(e) of the Code of Civil Procedure
(the Code) (735 ILCS 5/2-615(e) (West 2010)) for judgment on the pleadings on count X of
his countercomplaint. 1 Count X argued that the Amendment was void because the Power of
Attorney, which purportedly authorized the Amendment, did not specifically name the Trust,
as required by section 2-9 of the Illinois Power of Attorney Act (Act) (755 ILCS 45/2-9 (West
2006)). Neither Larry, Linda, nor Lois filed an objection to the motion.
¶ 10 The trial court heard Lyle’s motion on July 14, 2011. After Lyle presented his arguments,
Lois’s counsel opined:
“I think [counsel for Lyle] is correct technically but I would just like the court to know
that in recognition of [the Amendment] and the special gift that was given to Lois, two
of the other beneficiaries of [the Trust] have assigned their interests in the residue to
Lois. I don’t think it affects the invalidity of [the Power of Attorney] at all, but I just
wanted the court to be aware that certain of the beneficiaries in this case would submit
to the court that it was truly the intent of [Leroy] to benefit Lois in the way that she was
to be benefitted under [the Amendment], that was truly his intent, but there is no
question about it technically under the law [that] [the Power of Attorney] did not
properly identify [the Trust] and [Linda] was probably without the power to amend [the
Trust].”
Larry’s counsel agreed with this assessment before the trial court granted Lyle’s motion and
entered judgment for him on count X of his countercomplaint.
¶ 11 In January 2012, Linda filed a motion to vacate the July 2011 order. In her motion, Linda
made the following allegations:
“2. The [Power of Attorney and the Amendment] were prepared by [Leroy’s]
attorney. ***
***
1
Lyle also sought judgment on count IX of his complaint, but as discussed in Voga I, we can only
assume that this count was eventually dismissed after being repleaded as count IV of Lyle’s amended
countercomplaint. Voga I, 2017 IL App (2d) 160690, ¶ 40. The parties have not mentioned count IX’s
disposition, and the record is otherwise silent as to how it was resolved.
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4. The effect of [the Amendment] would be to deplete the entire Estate, so that there
would be no residue to distribute.
5. [Linda and Larry] assigned their share of the Trust residue to [Lois], in respect
of [the Amendment], which they believed reflected [Leroy’s] wishes.
6. Prior to the Court hearing on July 14, 2011, all parties except [Lyle] determined
that it was not cost efficient to litigate the validity of [the Power of Attorney and the
Amendment].
7. The Court did not conduct any hearing on July 14, and the parties did not submit
any evidence or present any argument.
8. The Court Order dated July 14 made findings which are not supported by the
record.
9. The Court Order was not reviewed by [Linda] or her counsel prior to July 14,
and was never served upon them. A copy of the Court Order was obtained from the
Court Clerk in November, 2011.
10. In October, 2011, [Lyle] filed a Complaint in federal court, in the Northern
District of Illinois, alleging a breach of fiduciary duty by [Linda] as Trustee for [the
Trust], based in part on [the Power of Attorney and the Amendment].
11. Since this Court did not make any determination on the merits of [count X] of
Lyle’s [countercomplaint], this Court’s Order should not be precedential in the federal
court litigation.”
¶ 12 When responding to her motion, Lyle argued that Linda had not pleaded any facts showing
that she was entitled to relief from the judgment under section 2-1401 of the Code (735 ILCS
5/2-1401 (West 2010)). However, neither Lois nor Larry objected to Linda’s motion.
¶ 13 The trial court ultimately granted Linda’s motion and vacated the July 2011 order. In doing
so, the court found:
“Well, no judge likes to vacate an order after 30 days simply because we like to say
what’s done is done and move on, but in this case[,] I don’t see the harm done in
vacating it. The indication is they’re not likely to pursue it here. It’s already being
litigated in federal court which that’s certainly the parties’ options to do that.”
¶ 14 In June 2012, Larry and Lois filed a joint motion under section 2-619(a) of the Code (735
ILCS 5/2-619(a) (West 2012)), seeking to dismiss count X of Lyle’s countercomplaint,
pursuant to the doctrine of election. Furthermore, Larry and Lois sought a declaratory judgment
in order to establish that Lyle forfeited any interest in the Trust by operation of the Trust’s no-
contest clause. After holding a hearing and entertaining arguments on the motion, the trial court
took the matter under advisement and dismissed count X of Lyle’s countercomplaint.
However, the court denied Lois’s and Larry’s request for a declaratory judgment.
¶ 15 In February 2013, Lyle filed a five-count amended countercomplaint against Larry, Linda,
and Lois. Count I sought an accounting of the Trust’s assets, count II sought an apportionment
of liability for estate taxes, and count III alleged a breach of fiduciary duty by Larry and Lois.
Counts IV and V of the amended countercomplaint were essentially reiterated versions of
counts IX and X of Lyle’s prior countercomplaint.
¶ 16 In March 2016, after the court noted that it had already disposed of counts IV and V of the
amended countercomplaint, the court held a bench trial to resolve Lyle’s remaining three
counts. The court first issued its written decision in June 2016, before amending its order in
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July 2016. Regarding counts I and II, the court calculated the total value of the Trust’s assets
for both federal and state estate-tax purposes and valuated each sibling’s assets under the Trust.
The court also awarded Leroy’s former Arizona residence to Lois and considered this new
disposition while apportioning each sibling’s percentage of estate-tax liability. Finally, the
court determined that Lyle’s breach-of-fiduciary-duty claim was defeated by his own
“unreasonable conduct,” specifically, his “fail[ure] to communicate with his siblings regarding
the tax obligations due to [the Internal Revenue Service] and State of Illinois” and his “fail[ure]
to account for his dealings with the [T]rust.” After the court denied Lyle’s motion to reconsider,
he filed his appeal in Voga I.
¶ 17 In Voga I, we held that neither the doctrines of election nor estoppel precluded Lyle from
asserting count X of his original countercomplaint (which was subsequently repurposed as
count V of his amended countercomplaint). For that reason, we reversed the trial court’s
dismissal of count X. Because the trial court’s subsequent adjudication of counts I through III
of the amended countercomplaint were dependent on the prior dismissal of count X, we also
reversed the court’s July 2016 judgment as to those counts and remanded the matter for a new
trial. Voga I, 2017 IL App (2d) 160690, ¶ 62. While we declined to address the merits of count
X, we did suggest that the Power of Attorney seemed to contradict the language of section 2-
9:
“Neither here nor elsewhere in the POA was there specific mention of the Trust.
Consequently, Lyle has articulated a challenge that the Amendment is void because the
POA did not, contrary to section 2-9, specifically mention the Trust in granting Linda
the power to modify trusts of which Leroy was the trustor.” (Emphasis added.) Id. ¶ 58.
¶ 18 Upon remand, Lyle filed a renewed motion for partial summary judgment on count V of
his amended countercomplaint. In this motion, Lyle once again argued that the Amendment
was unlawful because the Power of Attorney authorizing it failed to satisfy section 2-9 of the
Act. Linda responded and filed a cross-motion for summary judgment, claiming that the Power
of Attorney did not need to comply with section 2-9 because it was valid under section 2-4 of
the Act. On August 8, 2018, the trial court took the matter under advisement.
¶ 19 On August 18, 2018, the court entered an order denying Lyle’s motion for partial summary
judgment and granting Linda’s cross-motion for summary judgment. After acknowledging the
conflict between sections 2-4 and 2-9 of the Act, the court found that invalidating the
Amendment under section 2-9 would render section 2-4 a nullity and would also thwart
Leroy’s “clear and obvious intent” to allow Linda to amend the Trust. On December 28, 2018,
the trial court denied Lyle’s motion to reconsider.
¶ 20 On January 3, 2019, Lois filed a motion to obtain a final judgment order in order to settle
the remaining three counts of Lyle’s amended countercomplaint. She argued that, because the
trial court once again confirmed the Amendment’s validity, the parties were essentially in the
same position that they were in immediately preceding our decision in Voga I. Therefore,
according to Lois, it was not necessary to hold any additional proceedings to resolve the
remaining counts because they were already adjudicated in July 2016 under similar
circumstances. No parties objected to the motion or filed a response thereto, leading the court
to grant Lois’s motion on January 10, 2019. The order accompanying this decision
incorporated the court’s earlier July 2016 and August 2018 orders.
¶ 21 Lyle timely appealed the court’s January 2019 order. Meanwhile, Lois initiated collection
proceedings against him pursuant to both the July 2016 and January 2019 orders.
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¶ 22 On March 18, 2019, the trial court provided Lois with a memorandum of the July 2016
judgment, confirming that a $59,264.16 judgment had been entered against Lyle in her favor.
She obtained a third-party citation to discover assets from the Kendall County Clerk and
provided the same to Lyle and his bank, Heartland Bank and Trust Company (Heartland). On
March 29, 2019, Heartland answered the citation, and on April 2, 2019, Lois filed a motion for
a turnover order.
¶ 23 On May 1, 2019, Lyle filed a motion to quash the third-party citation, which the trial court
heard on May 9, 2019. Upon the conclusion of the hearing, the court entered orders dismissing
Lyle’s motion and directing Heartland to turn over $17,224.84 to Lois’s counsel. Lyle timely
appealed the May 2019 order also, and we consolidated both appeals.
¶ 24 II. ANALYSIS
¶ 25 Lyle brings forth several arguments detailing perceived errors in the trial court’s
adjudication of his and Linda’s cross-motions for partial summary judgment. First, Lyle
contends that the court erred in denying his motion for partial summary judgment because the
Power of Attorney did not comply with section 2-9 of the Act. Next, he argues that, regardless
of section 2-9, the Power of Attorney violated the Trust’s prohibitions against general powers
of appointments and therefore could not have been the basis of any Trust amendment. Finally,
he argues that the trial court relied on improper evidence when disposing of count V of his
amended countercomplaint.
¶ 26 Because we agree that section 2-9 of the Act invalidates the Amendment, we need to
address only Lyle’s first argument to conclude this matter. However, we first must direct our
attention to Lois’s contentions regarding our jurisdiction over these consolidated appeals.
¶ 27 A. Jurisdiction
¶ 28 As a preliminary matter, Lois argues that we lack jurisdiction over the pending appeals
because the January 2019 order should be construed as a consent decree that did not represent
a judicial determination of the parties’ rights. However, because the January 2019 order did
not amount to a consent decree, we conclude that we do have jurisdiction over this matter.
¶ 29 Before considering the merits of an appeal, a reviewing court must first ascertain whether
it has jurisdiction over an appeal. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232
Ill. 2d 209, 213 (2009). Appellate courts generally lack jurisdiction over appeals from
judgments that the parties have agreed to, which might be known as “agreed orders,” “consent
orders,” or “consent decrees.” Grubert v. Cosmopolitan National Bank of Chicago, 269 Ill.
App. 3d 408, 411 (1995); In re Marriage of Rolseth, 389 Ill. App. 3d 969, 971 (2009). Such an
order is more akin to a settlement than a judicial determination of the parties’ rights, and absent
fraud or public policy concerns, reviewing courts should not review what amounts to a
settlement between parties. People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers
Ass’n, 106 Ill. 2d 1, 8 (1985).
¶ 30 Reviewing courts have identified several factors to aid in the identification of consent
decrees. Sementa v. Tylman, 230 Ill. App. 3d 701, 704 (1992). First, the title of a consent decree
should ideally indicate that it was entered by agreement of the parties. Bergman v. Rhodes, 334
Ill. 137, 142 (1929); Village of Mundelein v. Village of Long Grove, 219 Ill. App. 3d 853, 862
(1991). Furthermore, the terms of a consent decree do not rely on underlying pleadings and
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evidence—the decree’s creation is “an independent undertaking.” Village of Mundelein, 219
Ill. App. 3d at 862. Because a consent decree is contractual in nature, it should include
documentation of the attorneys’ unqualified consent to the order’s terms. City of Kankakee v.
Lang, 323 Ill. App. 14, 19 (1944). For example, the notation of the word “O.K.” along with
the parties’ signatures on a judgment suggests the existence of a consent decree. Id. However,
if a party to litigation marks or signs an order solely because he or she believes that it accurately
reflects a judge’s findings, such acquiescence to the form of the order does not transform it
into a consent decree. Sampson v. Village of Stickney, 24 Ill. 2d 134, 139 (1962).
¶ 31 Lois claims that our supreme court’s reasoning in Massell v. Daley, 404 Ill. 479 (1949),
establishes that the January 2019 order was actually a consent decree and is therefore
nonappealable. We disagree.
¶ 32 In Massell, several nightclub owners sued the State to enjoin it from collecting taxes on
certain food and beverage sales. Id. at 480. According to the owners, they were exempted from
the tax because their meal sales were incidental to their primary business of providing
entertainment to their patrons. Id. The trial courts entered a series of decrees stating that the
respective plaintiffs were not subject to the disputed taxes. Id. at 481-82. The judgments
included notations from the defendants indicating compliance with the substance of the
decrees, such as “[c]hecked and found correct” and “[n]o objection basis [plaintiff] engaged
primarily in entertainment business.” (Internal quotation marks omitted.) Id. Our supreme
court inferred that the judgments were consent decrees, presumably based on the defendants’
notations. Id. at 483-84.
¶ 33 Lois’s reliance on Massell is unavailing because the supreme court did not explain why it
concluded that the judgments were agreed orders. However, even if Massell were relevant, it
is nevertheless clearly distinguishable.
¶ 34 First, in contrast to the consent decrees described in Massell, the January 2019 order did
not contain any notations indicating any type of settlement or agreement between the parties.
No party signed the order. Next, unlike in Massell, the record here contains no suggestion of
an agreed order. No portion of the record identifies the January 2019 order as a “consent
decree,” “agreed order,” or “consent order.”
¶ 35 Instead, the January 10, 2019, hearing establishes that the January 2019 order was sought
as a result of the trial court’s previous denial of Lyle’s motion to reconsider. Therefore, the
order was based on a judicial determination of the parties’ rights instead of a settlement
agreement. The January 2019 order incorporated the court’s earlier July 2016 and August 2018
orders, both of which also represented judicial determinations of the parties’ rights. Lois points
to no portion of the record that clearly indicates that Lyle agreed to any of the determinations
made in any of the incorporated orders. Although Lyle did not object to the entry of the January
2019 order, his silence alone cannot reasonably be construed as acceptance of a settlement.
¶ 36 For these reasons, it is abundantly clear that the January 2019 order represented a judicial
determination and not an agreed settlement of the parties. We therefore have jurisdiction over
these appeals and turn to the merits of Lyle’s arguments concerning the validity of the
Amendment.
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¶ 37 B. Linda’s Authority to Amend the Trust
¶ 38 Lyle first argues that Linda could not lawfully amend the Trust because the Power of
Attorney failed to comply with section 2-9 of the Act. We agree. The interpretation of the Act
is a question of law, which we must review de novo. Evanston Insurance Co. v. Riseborough,
2014 IL 114271, ¶ 13.
¶ 39 When interpreting a statute, a court’s primary concern is ascertaining the legislature’s
intent. Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 6 (2009). A statute’s language, given its
plain and ordinary meaning, is the best indicator of that intent. Id. Furthermore, courts should
avoid interpretations that render a statute meaningless or that lead to absurd results. Harris v.
Manor Healthcare Corp., 111 Ill. 2d 350, 363 (1986). “It is also a fundamental rule of statutory
construction that where there exists a general statutory provision and a specific statutory
provision, either in the same or in another act, both relating to the same subject, the specific
provision controls and should be applied.” Knolls Condominium Ass’n v. Harms, 202 Ill. 2d
450, 459 (2002).
¶ 40 Lyle argues that section 2-9 of the Act renders the Amendment void. Section 2-9 provides
that “[a]n agent may not revoke or amend a trust revocable or amendable by the principal ***
without specific authority and specific reference to the trust in the agency.” (Emphasis added.)
755 ILCS 45/2-9 (West 2006). According to Lyle, the Power of Attorney did not contain any
specific reference to the Trust. Therefore, pursuant to section 2-9, Linda could not lawfully
amend the Trust.
¶ 41 On the other hand, Lois and Linda argue that section 2-4 of the Act authorized Linda to
amend the Trust under the Power of Attorney. Under section 2-4, “the provisions of the [power
of attorney] will control notwithstanding [the] Act.” 755 ILCS 45/2-4(a) (West 2006).
According to Lois and Linda, any failure to comply with section 2-9’s specificity requirements
would be irrelevant because section 2-4 mandates that the Power of Attorney controls
notwithstanding the Act.
¶ 42 A few considerations guide our analysis. First, as evidenced by the disparate results that
each section’s application entails, sections 2-4 and 2-9 clearly conflict with one another.
Furthermore, sections 2-4 and 2-9 both pertain to the same topic—powers of attorney.
However, while section 2-4 provides that a power of attorney controls over conflicting portions
of the Act, section 2-9 governs a more specific topic: trust administration within the context of
powers of attorney. Therefore, turning to the rule favoring the application of a specific statute
over a conflicting, general statute, these considerations lead us to conclude that section 2-9
controls and consequently invalidates the Amendment. See Harms, 202 Ill. 2d at 459.
¶ 43 In order to avoid this conclusion, Linda argues that the two sections do not necessarily
conflict because they were meant to apply to two different situations. She argues that section
2-4 applies only to powers of attorney that contain their own provisions regarding trust
amendments. However, according to Linda, if a power of attorney does not set forth its own
mechanisms for amending trusts, section 2-9 governs and should be used as a gap-filler.
¶ 44 This construction of the Act violates at least three cardinal rules of statutory interpretation.
First, Linda’s proposed interpretation would lead to absurd results. See Harris, 111 Ill. 2d at
363. If section 2-9 applied only to powers of attorney that omitted any reference to trust
amendments, then its requirements would bind only nonexistent agency provisions. The
suggestion that the legislature intended nonexistent contractual provisions to conform to
section 2-9 is patently absurd. Id.-8-
¶ 45 Second, because Linda’s interpretation consequently fails to provide for any reasonable
application of section 2-9, her construction of the Act violates another rule of statutory
interpretation by rendering section 2-9 meaningless. Id. Linda argues that our interpretation of
the Act would similarly render sections 2-4 and 3-3 (755 ILCS 45/3-3 (West 2006)) of the Act
a nullity. We disagree. Once a specific statute has been found to govern over a conflicting,
general statute, the specific statute should be construed as an exception to the general one.
People ex rel. Madigan v. Burge, 2014 IL 115635, ¶ 31. Therefore, under our interpretation of
the Act, section 2-4 still generally applies to agency provisions aside from those specifically
addressing trust amendments. On the other hand, Linda’s interpretation of the Act provides for
no reasonable application of section 2-9 whatsoever.
¶ 46 Section 3-3 of the Act is also unblemished by our interpretation because it can be read in
harmony with section 2-9. In relevant part, section 3-3 provides that “[n]onstatutory property
powers must be executed by the principal and designate the agent and the agent’s powers, but
they need not be acknowledged or conform in any other respect to the statutory property
power.” (Emphasis added.) 755 ILCS 45/3-3 (West 2006). Otherwise put, this section specifies
that nonstatutory powers of attorney must comply only with any of the Act’s provisions
regarding the designation of an agent and the agent’s powers. Because section 2-9 governs the
designation of an agent’s powers to amend trusts, section 3-3 consequently requires
nonstatutory powers of attorney to comply with section 2-9. 2
¶ 47 Third, Linda’s interpretation of the Act violates the rule favoring the application of a
specific statute over that of a conflicting, general statute. See Harms, 202 Ill. 2d at 459.
¶ 48 Nonetheless, Lois argues that Brown Brothers Harriman Trust Co. v. Bennett, 357 Ill. App.
3d 399 (2005), which involved a statute sharing some language with section 2-4, leads to a
different conclusion. However, because that case is inapplicable, we disagree.
¶ 49 In Brown Brothers, the court sought to determine whether a trust could allocate certain
expenses to the trust’s income instead of its principal. Id. at 402. There, the respondents argued
that section 14 of the Principal and Income Act (760 ILCS 15/14 (West 2002)) required the
expenses to be equally apportioned between the trust’s income and its principal. Brown
Brothers, 357 Ill. App. 3d at 403. However, the petitioners argued that section 3(a) of that same
act (760 ILCS 15/3(a) (West 2002)) granted trustors the authority to set their own guidelines
for apportionments, notwithstanding that act’s other provisions. Id. at 404. After noting
multiple provisions in the Principal and Income Act that reinforced the petitioners’
interpretation, the court chose to adhere to section 3(a) by retaining the apportionments. Id. at
406. After doing so, the court suggested that section 14 may nonetheless find use as a gap-
filler in trusts that do not otherwise provide their own guidelines for apportionments. Id. at
409.
¶ 50 Here, although section 3(a) of the Principal and Income Act and section 2-4 of the Act both
specify that certain estate planning tools might conflict with and consequently override their
respective acts, Brown Brothers is nonetheless inapplicable. Although the court there found
Linda also suggests that section 2-9 was intended to apply only to statutory powers of attorney.
2
Therefore, because the Power of Attorney was nonstatutory, Linda asserts that section 2-4 controls as
a matter of law. However, Linda’s argument is forfeited because she has offered no authority
whatsoever that explicitly provides that section 2-9 is so limited. Ill. S. Ct. R. 341(h)(7) (eff. May 25,
2018).
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multiple supporting provisions of the Principal and Income Act to establish section 3(a)’s
predominance over section 14, there are no analogous provisions within the Act that suggest
that section 2-4 should similarly control over section 2-9. Id. at 406. Furthermore, while Brown
Brothers still left section 14 with use as a gap-filler, as we discussed earlier, allowing section
2- 4’s language to control over section 2-9 would violate a canon of construction by rendering
the latter provision a nullity. Id. at 409. Therefore, because of these differences between the
Principal and Income Act and the Act, Brown Brothers does not provide us with any guidance
and we reject Lois’s argument on this point.
¶ 51 Alternatively, Lois argues that, even if section 2-9 controls, the Power of Attorney satisfied
that section’s specificity requirements because it allowed Linda to amend only trusts in which
Leroy was the grantor. Lois also claims that it would be unfair to require the Power of Attorney
to specifically name the Trust because the Trust has several aliases that various parties have
used in previous settings.
¶ 52 These arguments are misguided. There is no way that Leroy could have authorized Linda
to amend anyone’s trust but his own, so limiting her authority to trusts in which he is the grantor
is tautological. Furthermore, while the record does indicate that the Trust was referred to
differently in different contexts, the Power of Attorney did not refer to the Trust in any specific
way whatsoever. Therefore, we need not decide whether references to any of a trust’s aliases
satisfy section 2-9.
¶ 53 Finally, Lois and Linda argue that we should disregard section 2-9 in order to fulfill Leroy’s
intentions. Both parties suggest that doing otherwise would frustrate his attempts to properly
plan his estates and would unduly limit his testamentary freedoms. Unfortunately, neither of
these arguments enables us to simply ignore section 2-9’s clear mandates. We agree that courts
should preserve the freedom to manage one’s own estate, but we note that the Act provides
guidelines to ensure that principals clearly record their testamentary intentions.
¶ 54 For these reasons, we find that the Power of Attorney failed to satisfy section 2-9 of the
Act. Consequently, because the Power of Attorney did not authorize Linda to amend the Trust,
the Amendment is void. We reverse the trial court’s dismissal of count V of the amended
countercomplaint and vacate the order granting Linda summary judgment as to that same
count. Because the trial court based its January 2019 order on the wrongful dismissal of count
V, we also reverse that order and the May 2019 orders stemming therefrom.
¶ 55 III. CONCLUSION
¶ 56 For the reasons stated, we reverse the judgment of the circuit court of Kendall County in
appeal No. 2-19-0108, vacate the judgment in appeal No. 2-19-0550, and remand for further
proceedings consistent with this opinion.
¶ 57 No. 2-19-0108, Reversed and remanded; No. 2-19-0550, Vacated.
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