who handled the state assets and they acted as a custodian of the guardianship their assets bank champaign the defendant in this case so those of the parties force relevant to the limitations issue is because in the record and in the record in this case before you what does reflect it is there on his mother serious the state assets roll into ultimately for distribution of the trust under the terms of the will and from just does the trust does it provide that it goes on ask the close of probate december twenty eighth just three days prior to there and then on december thirty first the date on which to resign they removed from the korean ship account and to trust which they were administered one for sarah for the threat of litigation and counsel in champaign county and had to pay them forty thousand and one hundred thousand dollars as an advance retainer respectively referred to that is personally ation we did it because in in the phrase filed on behalf of the bank in this case the bank indicates he has the court that an objection filed by the successor trustee which was strategic capital was insufficient in that objection the successor trustee strategic says that we have some concerns regarding the fees that were taken we want an explanation of the hundred forty thousand dollars that was taken about what had been done was insufficient to constitute an objection up for purposes of the trial started there was no evidence presented to the court with respect to how we to interpret that had been taken from the accounts as being unlawful improper and requested emergency relief with respect to ordering that those terms to the guardianship be found and the trust  discounted entirely the fact that we have filed a petition for emergency relief surrogate upon bank champaign in find that because it was filed in the guardianship case it was a sufficient to be a written concern and therefore said it didn't rise to the level required by the trust document but there's nothing in the trust document that requires it's the civic form of objection other than it you know right there page nineteen of the the need for these advanced retainers there with your refund so there's a communication today flee additionally in addition to providing information march twenty seven which is the continuation of these correspondence set forth in the record this is the six fifty eight mr keller copying my client and the other foot ministry writes to the successor trustee and said agreement with our understanding this map on the following day on the successor trustee at six fifty nine of the record with a letter that says we do not confirm the correctness of your understanding i previously seventy six of the record petition for leave to intervene and he proposed something intervention is granted objections to the petition for final approval of the guardianship account and which they can raise the same withdrawals and that was filed may third two thousand and two within the thirty day period that the defendant in this case that they wanted or response so we would respectfully suggest and first this court to find that the circuit court was simply in error as a matter of law because it was ruled on as a matter of law and pleading in finding that the february eight as compared to the court the implication was that his successor trustee they had the responsibility of objecting to the final accounting and beneficiaries they would be entitled to those trust the portion of the process that's which in the scheme of things would encompass all of the guardianship assets which remain all of the estate is and then all of the trust the trust to obtain any kind of hope terminations to be this is that five seventy six of the rock and it was under a feast will nothing more than  as an individual must be broken up into two separate baskets as if there is terminations fee relating to the guardianship account and there is the termination relating to a trust account and then there's the attorney retainers on the guardianship account and the attorney and tanner's on the trust so we have two separate claims within that single count one bank champagnes petition for final approval of its guardianship accounts their winter death oh shortly after short the sixth one on a long time that certainly within within a year of the resignation the resignation took place and december thirty first two thousand and one within that next calendar year bank champaign filed its petition for final accounting approval in the guardianship estate so basically  but with regard to the two six fifteen while relating prior action pending the key would be same parties the same action that there happened to be a slightly different remedy in the form of consolidation into the probate proceeding may make sense and that action remarkably is still with regard to the timing limits on the have member that it's just the process quite trusted provide for written objection in sixty days otherwise the accounting of the bank champagne for a year in two thousand and one which is the operative year would be final binding inconclusive we heard a few moments ago that while there was an objection and it was from the successor trustee in the form of this letter exchange the trial court determined that as a matter of law that it was not an objection and i think to address your question justice meyers office whether that issue was a question law or a question of fact it seems to me that the best way to approach that is similar to contract if there is an ambiguity then it's go looked at those letters and determined as follows the letter the letters say now are a little concerned about a couple of things could you address our concerns there was a response to which with their after met with silence as far as bank champagne was concerned in their capacity as trustee of the two trust in question the letter does not in my view as a matter of law suffice as a written objection as the provisions of the trust require that essentially says we're curious about a couple of things and we have some concerns please respond or concerns your spot was made nothing further was done within sixty days in their capacity as trustee of the trust that's the truck works ruling on this issue now we heard moments ago about a subsequent letter from strategic where it used the word of russians if it had the information and not what it's saying no we don't agree that there is no way we have checked that without question comes months after the sixty so far as the trust is concerned were not in my judgment written objections made in a timely fashion the trial court determined that an objection filed in the guardianship is exactly that  we need to look to the allegations made by donald jude and here's the donald judy alleged in his july ninth two thousand and seven point against bank champagne bank champagne quote agreed with representatives of the beauty trust and the estate blank champagne agreed to provide services which provided for in account terminations to be charged in the event an account was terminated then again in september of two thousand and eight the exact same of allegation of agreement made by mr june that there was an agreement which provided for the charging of the terminations in the event account was an account wasn't terminated these are all eviden has in his own pleat at mid that there was an agreement regarding terminations the trial court relied on the agreement and appropriately dismissed all of the claims relating to terminations other terminations fees regarding the trust accounts and terminations fees regarding the guardianship account o were dismissed based on not only the documents which are part of this record but upon mr judy's only allegations that there was hope and agreement that it terminations fee would be char that all of the assets were transferred from from bank champaign this is deja kaput is there something in the record say therefore the account was for what closed no but there was a concession that all the assets were transferred there's nothing in the account and the trout were therefore determined that the account was indeed closed and in this regard the court said quote the fee schedules do provide for a feat when they close the account and that is clearly what they did inconsistent with charging a one percent terminations fee i don't believe so at all well isn't it the duty of the trustee to not only manage the s s we conserve the assets and grow the yes that's for the benefit of the fee on the closing of the trust trust would certainly come within the scope of something that's commercially reasonable and on the issue of how much it's got to be remembered that with regard to the second amendment point the issue plenty because the basis of the and that's not an issue that was of concern to the trial court pressed by the proper court in its ruling on the motion for judgment on the pleadings because at that time the trust claim had already been dismissed the only claim existing at the time the motion for element of the case obviously is that there must be a duty in order for there to be a preacher fiduciary and there are no facts alleged by mr judy in his second amendment claim that bank champagne owed him any duty whatsoever with regard to the guardianship or and the guardianship because the banks duty was owed to the war not to donald judy individual and that was the basis really for truckers motion for granting a motion for judgment pleadings with regard to the garbage who entered well in this case in september of two thousand and eight mr judy filed an amendment to his complaint which appended the fee schedule which provided for the one percent along with his allegation that the bank to the guardianship yes i'm saying that there was there there is an affidavit in support of the motion to dismiss based on other from the matter that no objections were received by the bank  complete is a complaint alleging that in december of two thousand and one these improper transfers took place the complaint in this action was not filed until july of two thousand and six of limitations is five years that's five years and some seven months to avoid the problem mr judy says well that we're going to take advantage of the refiling section of three five the vision of thirteen two one no because it's a matter of capacities in the first case he was the cold guardian of the estate in the second case he brought it as an individual and that issue was decided or raised and determined by the hamilton case is that you really court tell that's because those two capacity here for the second case not filed in the statue of limitations could not act as the filing of the first because there was no identity of the parties because filing in one capacity capacity obviously changed and i just want to quote you from the statute thirteen to seventeen it says then whether or not the time of attention for bringing such action expired during the pendency of such action the plaintive he is there's executor or then files another lawsuit outside the statue of limitations as john smith that you would not allow it to thirteen tricks so your reading of that section of statute is that if she dies they're just out of luck now in iraq then then the  stipulations to bring this only an individual capacity there were cross petitions in the probate action to remove various people along the way in just just so all three where we may have to get copies of affidavit and holder's affidavit directly refuting it is that six for you to six it's one it's incorrect to say that the matters were resolved within sixty days because even as of march twenty fifth ballard is writing  saying please call or write to advise of the timing of the remaining asset transfers this is that six fifty seven so there was this ongoing dialogue it wasn't concluded within sixty days and in fact thank champagne knew there was an paragraph one specifically says that a petition was filed seeking the removal of this both trustee and guardian those on the track that withdraw all these assets there cannot give a good faith claim that thank champaign that wasn't aware of the complaint on there would be nothing in the record to reflect that it was i don't really know if there was a one percent agreement between the individual we do not in fact in my grief i yes in my opening three i asked that the bank addressed that specific issue who was this agreement you claim to have been wet with what was it entered into how was it in writing  assets these accounts weren't close they resigned under threat of removal and the correspondence which i pointed out to the court specifically from mr ballard acknowledges that the money was taken because of threat of litigation over their mismanagement of