Illinois Official Reports

Appellate Court

In re Estate of Feinberg, 2014 IL App (1st) 112219

Appellate Court 

Caption

In re ESTATE OF ERLA FEINBERG, Deceased (Michele Trull, 

Plaintiff-Appellant and Cross-Appellee, v. Leila Taylor, Marshall 

Taylor and Michael Feinberg, Defendants-Appellees and CrossAppellants).–FIFTH THIRD BANK, as Trustee under the Trusts of 

Erla Feinberg and Max Feinberg, Petitioner-Appellant, v. LEILA R. 

TAYLOR, Individually and as Coexecutor of the Will of Erla 

Feinberg, Deceased; MICHAEL B. FEINBERG, Individually and as 

Coexecutor of the Will of Erla Feinberg, Deceased; and MARSHALL 

TAYLOR, Respondents-Appellees.

District & No. First District, First Division

Docket Nos. 1-11-2219, 1-11-2258, 1-12-2476, 1-12-2715 cons.

Filed

Rehearing denied

February 3, 2014

March 14, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

In a complex set of actions arising from the distribution of trust assets 

to the settlors’ descendants, the trial court’s order approving a 

distribution plan proposed by the bank acting as the trustee under the 

trusts at issue was affirmed, but the cause was remanded for further 

proceedings in accord with the reversal of the trial court’s 

determination that a small amount of assets had been misappropriated 

from an account that belonged to one settlor and that a condominium 

belonging to that settlor was not subject to recovery.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, Nos. 04-L-7195, 

04-P-5093, 05-P-0173; the Hon. Susan M. Coleman, Judge, presiding.

Judgment Affirmed in part and reversed in part; cause remanded.
- 2 -

Counsel on

Appeal

Ice Miller, LLP, of Chicago (John D. Burke, Douglas A. Henning, 

Richard C. Johnson, Erin M. Eckhoff, and Nicholas A. Casto, of 

counsel), for appellant Fifth Third Bank.

Ethan E. Trull, of Highland Park, and Christopher Langone, of Ithaca, 

New York, for appellant Michele Trull.

Thompson Coburn, LLP, of Chicago (Robert H. Lang, of counsel), for 

appellees Leila Taylor and Marshall Taylor.

Dahl & Bonadies, LLC, of Chicago (James E. Dahl and William D. 

Nagel, of counsel), for appellee Michael B. Feinberg.

Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with 

opinion.

Justices Hoffman and Delort concurred in the judgment and opinion.

OPINION

¶ 1 Following a bench trial in the circuit court of Cook County, the trial court entered a May 

16, 2011 judgment, pursuant to a citation to recover assets filed by petitioner Fifth Third 

Bank as trustee of the Erla Feinberg Trust, against respondent Michael Feinberg in the 

amount of $788,957 and against respondents Leila and Marshall Taylor in the amount of 

$1,911,107. The May 16, 2011 order also found that Fifth Third Bank’s recovery of assets to 

the Erla Feinberg Trust was an adequate remedy to the relief sought by plaintiff Michele 

Trull in an action alleging misappropriation of funds against defendants Michael Feinberg, 

Leila Taylor and Marshall Taylor. On August 10, 2012, the trial court entered an order 

approving Fifth Third Bank’s proposed plan of distribution of the assets in the Max Feinberg 

Trust and the Erla Feinberg Trust. On appeal, Leila and Marshall Taylor challenge the trial 

court’s May 16, 2011 order, which ordered them to return $1,911,107 to the Erla Feinberg 

Trust, and they challenge the trial court’s August 10, 2012 order granting Fifth Third Bank’s 

proposed plan of distribution of the assets. Michele Trull also appeals the May 16, 2011 and 

August 10, 2012 orders. On cross-appeal, Fifth Third Bank argues that the trial court erred in 

denying its request for prejudgment interest on the recovered assets. Michael Feinberg does 

not appeal the trial court’s May 16, 2011 ruling, which ordered him to return $788,957 to the 

Erla Feinberg Trust. For the following reasons, we affirm in part and reverse in part the 

judgment of the circuit court of Cook County.
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¶ 2 BACKGROUND

¶ 3 This case involves an extremely complex factual and procedural background, and thus, 

our recitation of the facts is limited to those that are pertinent to our resolution of this appeal.

On December 4, 1986, Max Feinberg (Max) died. Max was survived by his wife, Erla 

Feinberg (Erla), and their two adult children, Michael Feinberg (Michael) and Leila Taylor 

(Leila). Michael is married to Marcy Feinberg (Marcy).1 Michael has two adult children from 

his prior marriage: Michele Trull (Michele) and Aron Feinberg (Aron). Leila is married to 

Marshall Taylor (Marshall) (collectively, the Taylors). The Taylors, who have lived in 

California since 1969, have three adult children: Jon Taylor (Jon), Aimee Taylor Severe 

(Aimee) and Lisa Taylor Schroeder (Lisa).

¶ 4 At the time of Max’s death in 1986, Max and Erla each had a trust (collectively, the 

Feinberg Trusts), and their estate plans were mirror images of one another. The Max 

Feinberg Trust (the Max Trust) provided that upon Max’s death and after payment of 

expenses, the trustee shall allocate the trust corpus into two separate trusts for tax 

reasons–“Trust A” and “Trust B.” Both Trust A and Trust B were designed to provide for the 

“support, medical care and welfare” of Erla during her lifetime. The Max Trust provided that 

upon the death of Erla, the assets of Trust A and Trust B would be distributed amongst their 

children and grandchildren. The Max Trust also granted Erla a limited lifetime power of 

appointment to distribute the assets of Trust B to her descendants. Both the Max Trust and 

the Erla Feinberg Trust (the Erla Trust) contained what the parties refer to as the “Jewish 

clause,” which stated that any descendant, other than Michael and Leila, who married outside 

of the Jewish faith would be deemed deceased for the purposes of the trust instrument as of 

the date of the marriage. In September 1984, Max and Erla executed a first amendment to the 

Feinberg Trusts, which amended the Jewish clause to permit a non-Jewish spouse to convert 

to Judaism within one year of the marriage.

¶ 5 On June 29, 1994, Erla signed a durable power of attorney naming her children, Michael 

and Leila, as her agents.

¶ 6 On July 23, 1997, Erla exercised her lifetime power of appointment (the 1997 

appointment) over the Max Trust, directing that, upon her death, Michael and Leila and any 

of her grandchildren who were not deemed deceased under the Max Trust, shall receive 

$250,000 from the Max Trust. The 1997 appointment specified that “[i]f any of my 

grandchildren are deemed deceased then the [$250,000 share] shall be paid equally to the 

parents of that grandchild.” On that same day, July 23, 1997, Erla executed a second 

amendment to the Erla Trust (the second amendment), which deleted the Jewish clause from 

her own trust and directed that, immediately upon her death, a sum of $100,000 be 

distributed to each of her five grandchildren–Michele, Aron, Jon, Aimee and Lisa.

¶ 7 On October 1, 2003, Erla died. By the time of Erla’s death, all five grandchildren had 

been married for more than one year. Only Marshall and Leila’s son, Jon, met the condition 

of the Jewish clause and was entitled to receive $250,000 from the Max Trust, as directed by 

Erla’s 1997 appointment.

 1

The spelling of Marcy’s name varies throughout the record.
- 4 -

¶ 8 In 2004, Michele filed a lawsuit against Michael and the Taylors in the law division of 

the circuit court of Cook County, alleging that they misappropriated millions of dollars in 

assets from Max’s and Erla’s estates (case No. 04 L 7195).2 In the third amended complaint, 

Michele alleged counts for intentional interference with testamentary expectancy (counts I 

and II), conspiracy by the Taylors and Michael to intentionally interfere with testamentary 

expectancy (count III), and requested that a constructive trust be imposed against Michael 

and the Taylors for assets and funds which they had misappropriated from Erla and from the 

estates of Max and Erla (count IV). Michael and the Taylors sought to dismiss the lawsuit on 

the basis that Michele had no interest in Max’s estate because she was deemed deceased 

under the provision of the Jewish clause in the Max Trust. The trial court held that the Jewish 

clause was invalid on public policy grounds. On June 30, 2008, in an interlocutory appeal, 

this court affirmed the trial court and held that the Jewish clause in the Max Trust was 

contrary to public policy and, thus, unenforceable. In re Estate of Feinberg, 383 Ill. App. 3d 

992 (2008). On September 24, 2009, our supreme court reversed the rulings of the appellate 

and trial courts, holding that Max’s estate plan, when assessed in conjunction with Erla’s 

directions for distribution under the 1997 appointment, did not violate public policy. In re 

Estate of Feinberg, 235 Ill. 2d 256 (2009). Specifically, the supreme court found the Jewish 

clause valid.

¶ 9 On May 22, 2007, while the interlocutory appeal was pending, Fifth Third Bank (the 

Bank), as the corporate trustee of the Feinberg Trusts, filed a petition for citation to recover 

assets (the recovery citation) against Michael and Leila, as coexecutors of Erla’s estate, and 

against Marshall. The recovery citation sought to recover assets and property which belonged 

to the corpus of the Feinberg Trusts and which were allegedly misappropriated by Michael 

and the Taylors: funds withdrawn from Erla’s various convenience bank accounts (count I); 

funds to maintain and improve Erla’s condominiums (count II); funds taken from a Vanguard 

investment account (count III); and cash belonging to Erla in a safe deposit box (count IV).

On August 28, 2009, the trial court granted Michele’s motion for joinder to the Bank’s 

recovery citation. After joining as a party to the recovery citation, Michele sought leave of 

court to amend the recovery citation to include the recovery of Erla’s Florida condominium, 

funds taken from Erla’s “gifting program,” and a claim for punitive damages. The trial court 

denied Michele leave to amend the recovery citation to include a claim for punitive damages, 

but granted her leave to amend the recovery citation to include Erla’s Florida condominium 

and funds taken from Erla’s “gifting program.”

¶ 10 On remand from the supreme court’s 2009 ruling, on February 8, 2010, the Taylors’ son, 

Jon, as a beneficiary of the Feinberg Trusts, filed a motion for summary judgment on the 

recovery citation. He argued that the 1997 appointment and the second amendment were 

invalid because they were drafted by his nonattorney father, Marshall. On April 14, 2010, the 

trial court denied Jon’s motion for summary judgment on the recovery citation.

 2

Michele’s 2004 law division case was consolidated with two probate cases concerning the probate 

of Erla’s estate (case No. 04 P 5093) and the probate of Max’s estate (case No. 05 P 0173).
- 5 -

¶ 11 Prior to trial on the recovery citation and Michele’s tort action against Michael and the 

Taylors, the trial court determined that a fiduciary relationship existed as a matter of law 

between Michael, Leila and Erla as of June 29, 1994, when Erla signed a durable power of 

attorney naming both Michael and Leila as her agents. From May 24, 2010 to June 3, 2010, a 

bench trial was held to resolve the complaint following resolution of the interlocutory appeal.

The court heard the testimony of the Taylors; Michael; Marcy; Michele; the Bank’s expert 

witness, William Thullen (Thullen); Michele’s expert witness, Scott Stringer (Stringer); the 

Bank’s regional fiduciary executive, David Frye (Frye); and the Bank’s portfolio manager, 

Walter Tizura (Tizura). At trial, the trial court granted a motion for a directed finding in favor 

of the Taylors and Michael on Michele’s claim of conspiracy to intentionally interfere with 

testamentary expectancy (count III).

¶ 12 On May 16, 2011, the trial court entered an order granting the recovery citation, filed by 

the Bank, which stated that the Taylors were deemed to hold $1,911,107 plus reasonable 

attorney fees and costs in “constructive trust” for the benefit of the Erla Trust, and that 

Michael was deemed to hold in “constructive trust” $788,957 plus reasonable attorney fees 

and costs for the benefit of the Erla Trust. The trial court found that the Taylors and Michael, 

as fiduciaries to Erla, failed to rebut the presumption that the transactions by which they 

benefitted were the product of fraud or undue influence over Erla. However, the court found 

that Erla’s annual gifting program was “wisely implemented to take advantage of the annual 

gift tax exclusions” and that Erla was aware of the program. The court further found that 

evidence at trial was insufficient to subject Erla’s Florida condominium to recovery. The trial 

court then denied the Bank’s request for prejudgment interest on the recovered assets. The 

trial court further found that, based on its findings with regard to the recovery citation, the 

remaining counts of Michele’s tort action alleging intentional interference with testamentary 

expectancy need not proceed as they were duplicative of the remedy sought in the recovery 

citation filed by the Bank. The trial court then allowed Michele to file a separate petition for 

attorney fees.3

¶ 13 On June 14, 2011, Michele filed a petition for attorney fees. On June 28, 2011, the trial 

court denied the Taylors’ motion to reconsider its May 16, 2011 order, and clarified that the 

May 16, 2011 ruling was final and appealable pursuant to Illinois Supreme Court Rule 

304(b)(1) (eff. Jan. 1, 2006).

¶ 14 On July 27, 2011, the Taylors filed a notice of appeal, which appealed the trial court’s 

May 16, 2011 order and June 28, 2011 ruling denying the Taylors’ motion to reconsider 

(appeal No. 1-11-2258). On that same day, July 27, 2011, Michele filed a notice of appeal, 

which appealed the trial court’s May 16, 2011 order (appeal No. 1-11-2219). On August 3, 

 3

Although our supreme court, in its September 24, 2009 ruling on interlocutory appeal in In re 

Estate of Feinberg, 235 Ill. 2d 256 (2009), held that the Jewish clause in the Max Trust was valid and 

did not violate public policy, Michele may nevertheless remain as a party on remand in the instant 

lawsuit because she is a descendant and distributee under the Erla Trust, which had eliminated the 

Jewish clause by virtue of the second amendment in 1997.
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2011, the Bank filed a notice of cross-appeal, which appealed the portion of the May 16, 

2011 order that denied its request for prejudgment interest on the recovered assets. Michael 

does not appeal the trial court’s May 16, 2011 ruling which ordered him to return $788,957 

to the Erla Trust.4

¶ 15 On August 19, 2011, the Bank filed a petition for instructions, seeking instructions from 

the trial court on how the assets of the Feinberg Trusts should be distributed. The petition for 

instructions proposed that the trial court resolve certain issues, including whether the 1997 

appointment and the second amendment to the Erla Trust were valid, before any trust assets 

would be distributed. On November 30, 2011, the Taylors filed a response to the Bank’s 

petition for instructions, arguing that the 1997 appointment and the second amendment to the 

Erla Trust were invalid. On January 11, 2012, the trial court denied the petition for 

instructions, finding that the “time for contests regarding the validity of the testamentary 

documents has long since passed.” The trial court found that our supreme court’s 2009 ruling 

in this case was law of the case, and that the 1997 appointment and the second amendment 

were not the subject of contests before the supreme court and “they cannot be the subject of a 

contest now.” See In re Estate of Feinberg, 235 Ill. 2d 256.

¶ 16 On March 9, 2012, the trial court entered an order granting the Bank, as trustee of the 

Erla Trust, a total of $540,000 in attorney fees, to be imposed against Michael ($270,000) 

and the Taylors ($270,000) equally. On March 26, 2012, the trial court entered an order, 

nun pro tunc March 9, 2012, clarifying that the total amount of $540,000 in attorney fees 

awarded to the Bank as trustee of the Erla Trust shall be apportioned severally between 

Michael in the amount of $270,000 and the Taylors in the amount of $270,000. The order 

specifically stated that there was “no just reason to delay enforcement or appeal or both 

pursuant to Rule 304(a).” On May 17, 2012, the trial court entered an order awarding 

Michele $100,000 in attorney fees from the amounts recovered pursuant to the recovery 

citation.

¶ 17 On May 25, 2012, the Bank filed a petition to approve its proposed plan of distribution of 

the assets (distribution plan), which proposed that, pursuant to the 1997 appointment, the 

$250,000 share to each of the four grandchildren (Michele, Aron, Aimee and Lisa) who are 

deemed deceased under the Max Trust, for a total of $1 million, be split equally between 

Michael ($500,000) and Leila ($500,000). The distribution plan also proposed that, pursuant 

to the second amendment to the Erla Trust, $100,000 be distributed to each of the five 

grandchildren (Michele, Aron, Jon, Aimee and Lisa). The distribution plan proposed that, per 

the terms of the Erla Trust, any remaining assets in the Erla Trust would be split into 

individual trusts for the beneficiaries as follows: Michael Trust 25%; Leila Trust 25%; 

Michele Trust 12.5%; Aron Trust 12.5%; Jon Trust 8.33%; Aimee Trust 8.33%; and Lisa 

Trust 8.33%. The distribution plan also recommended that the funds held in trust for Michael 

and Leila be distributed to them outright. It further proposed that funds distributed to Michael 

as a beneficiary of the Feinberg Trusts be credited against his $788,957 judgment in this case 

 4

However, Michael does file a response brief before this court to address issues raised by other 

parties on appeal which pertain to him.
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until it is paid in full. On August 10, 2012, the trial court approved the distribution plan and 

ordered the Bank to distribute the funds from the Feinberg Trusts accordingly. The trial court 

further ordered the Bank to retain sufficient funds in the Feinberg Trusts to cover Leila’s and 

Michael’s petitions for fees as coexecutors of Max’s and Erla’s estates. The August 10, 2012 

order included Rule 304(a) language that there was “no just reason to delay enforcement, 

appeal or both.”

¶ 18 On August 20, 2012, Michele filed a notice of appeal, which appealed the trial court’s 

August 10, 2012 order (appeal No. 1-12-2476). On September 6, 2012, Leila, individually 

and as coexecutor of Erla’s estate, filed a notice of appeal to the trial court’s August 10, 2012 

order (appeal No. 1-12-2715). On October 17, 2012, this court consolidated the four appeals 

(appeal Nos. 1-11-2219; 1-11-2258; 1-12-2476; and 1-12-2715).

¶ 19 On October 30, 2012, upon petition for fees filed by Leila and Michael as coexecutors of 

Max’s and Erla’s estates, the trial court ordered the Bank to pay Michael $92,237.12 in fees 

from the Erla Trust for work performed as coexecutor of Max’s and Erla’s estates. On 

December 19, 2012, the trial court ordered the Bank to pay Leila $48,890.07 in fees from the 

Erla Trust and $16,581.18 from the Max Trust for work performed as coexecutor of Max’s 

and Erla’s estates.

¶ 20 ANALYSIS

¶ 21 This consolidated appeal by the Taylors and Michele, as well as a cross-appeal filed by 

the Bank, stem from the trial court’s May 16, 2011 order. The appeal by the Taylors and 

Michele also challenges the trial court’s August 10, 2012 order. This court has proper 

jurisdiction over this consolidated appeal and cross-appeal pursuant to Illinois Supreme 

Court Rule 304(b)(1) (eff. Jan. 1, 2006), which pertains to final judgments and orders 

“entered in the administration of an estate, guardianship, or similar proceeding which finally 

determines a right or status of a party.” For ease of understanding, we address each party’s 

arguments in turn. The facts and arguments are many.

¶ 22 On appeal, the Taylors argue that: (1) Michele lacks standing and is not a proper 

beneficiary to the Erla Trust; (2) the distribution plan was invalid because it was based on a 

void trust agreement; (3) evidence at trial did not establish that Marshall’s fiduciary 

relationship with Erla began in 1986; (4) funds taken from the Vanguard account should not 

have been returned to the Erla Trust; (5) the trial court erred in failing to apply a “missing 

evidence” presumption against Michael; and (6) the trial court erred in finding that the 

Taylors misappropriated $18,770 from a Morgan Stanley account.

¶ 23 As an initial matter, we address the Taylors’ argument that Michele lacks standing to 

pursue a claim as well as this appeal and is not a proper beneficiary to the Erla Trust. The 

basis for their argument is that the second amendment to the Erla Trust, which deleted the 

Jewish clause, was void as contrary to public policy because it was drafted by a nonlawyer, 

namely, Marshall. The thrust of the Taylors’ argument is that, if the second amendment was 

void, the Jewish clause in the Erla Trust would again become effective, thus deeming 

Michele deceased under the Erla Trust and barring her claims against the Taylors in their 
- 8 -

entirety. The Taylors point to section 2BB of the Consumer Fraud and Deceptive Business 

Practices Act (Consumer Fraud Act) (815 ILCS 505/2BB (West 2008)), which provides that 

a nonlawyer who drafts a trust document is guilty of a Class A misdemeanor. The Taylors 

also argue that the 1997 appointment, which was also drafted by Marshall, was void for the 

same reason.

¶ 24 We find that the Taylors’ challenge to the validity of the second amendment and the 1997 

appointment is essentially a trust contest. Section 8-1(f) of the Probate Act of 1975 (Probate 

Act) states that “[a]n action to set aside or contest the validity of a revocable inter vivos trust 

agreement or declaration of trust to which a legacy is provided by the settlor’s will which is 

admitted to probate shall be commenced within and not after the time to contest the validity 

of a will as provided in section (a) of this [s]ection and [s]ection 13-223 of the Code of Civil 

Procedure.” 755 ILCS 5/8-1(f) (West 2008). Section 8-1(a) of the Probate Act provides that 

an action to contest the validity of a will must be filed within six months after the admission 

of the will to probate. 755 ILCS 5/8-1(a) (West 2008); 735 ILCS 5/13-223 (West 2008) (an 

action to contest the validity of a trust agreement shall commence within the time to contest 

the validity of a will under the Probate Act). The six-month limitation period is a 

jurisdictional limitation barring any claim to contest the validity of a will or trust filed 

beyond that period. In re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 20. On September 8, 

2004, Erla’s will was admitted to probate (case No. 04 P 5093) and Max’s will was admitted 

to probate on January 24, 2005 (case No. 05 P 0173). Thus, any action contesting the validity 

of the second amendment or the 1997 appointment was required to have been filed within six 

months–by March 8, 2005 or July 24, 2005, at the latest. However, no party contested these 

trust instruments within the appropriate time period. As the trial court correctly noted in its 

April 10, 2010 ruling denying Jon’s motion for summary judgment on the recovery citation 

and the court’s January 11, 2012 order denying the Bank’s petition for instructions, this was 

a “trust contest that is about five years too late.” The court also noted that the “time for 

contests regarding the testamentary documents has long since passed.” Accordingly, the 

Taylors’ challenges to the validity of the second amendment and the 1997 appointment are 

untimely.

¶ 25 Nonetheless, the Taylors argue that they do not contest the trust instruments but, rather, 

request this court to construe the second amendment as void against public policy because it 

was drafted by Marshall, a nonlawyer, in violation of section 2BB of the Consumer Fraud 

Act. See 815 ILCS 505/2BB (West 2008). For support, they cite Landheer v. Landheer, 383 

Ill. App. 3d 317 (2008), and Herlehy v. Mary V. Bistersky Trust, 407 Ill. App. 3d 878 (2010).

¶ 26 Our supreme court has held that the General Assembly did not intend the Consumer 

Fraud Act to apply to conduct which takes place outside of Illinois. See Avery v. State Farm 

Mutual Automobile Insurance Co., 216 Ill. 2d 100, 185 (2005). At trial, Marshall testified 

that, after consulting an attorney, Marshall drafted both the second amendment and the 1997 

appointment in California and that Erla signed these documents while visiting the Taylors’

home in California. None of the circumstances surrounding the drafting or signing of the 

documents occurred in Illinois and, thus, the Consumer Fraud Act does not apply in this case.

We further find the Taylors’ cited cases, Landheer and Herlehy, to be factually 
- 9 -

distinguishable, where the conduct which gave rise to the holdings in those cases took place 

in Illinois and, thus, triggered the applicability of the Consumer Fraud Act.

¶ 27 Moreover, we find that the law-of-the-case doctrine bars the Taylors’ challenge to the 

validity of the 1997 appointment. Generally, the law-of-the-case doctrine prohibits 

reconsideration of issues which have been decided in a prior appeal. In re Christopher K., 

217 Ill. 2d 348, 365 (2005). “The rule is that no question which was raised or could have 

been raised in a prior appeal on the merits can be urged on subsequent appeal and those not 

raised are considered waived.” (Internal quotation marks omitted.) Preferred Personnel 

Services, Inc. v. Meltzer, Purtill & Stelle, LLC, 387 Ill. App. 3d 933, 947 (2009). Where there 

are no material changes in the facts since the prior appeal, such issues may not be relitigated 

in the trial court or reexamined in a second appeal. In re Christopher K., 217 Ill. 2d at 365.

The purpose behind the law-of-the-case doctrine is to “protect[ ] settled expectations of the 

parties, ensure[ ] uniformity of decisions, maintain[ ] consistency during the course of a 

single case, effectuate[ ] proper administration of justice, and bring[ ] litigation to an end.” 

Long v. Elborno, 397 Ill. App. 3d 982, 989 (2010). Here, our supreme court’s previous ruling 

in this case explicitly relied upon the existence and validity of the 1997 appointment in 

reaching its decision regarding the terms of the Max Trust. See In re Estate of Feinberg, 235 

Ill. 2d at 281. At no time did the Taylors or any other party assert while the case was under 

consideration in our supreme court, that the 1997 appointment was void. Specifically, there 

were no material changes in the facts of this case since the prior appeal. To reconsider the 

validity of the 1997 appointment at this juncture in the litigation after our supreme court had 

previously relied upon its validity would violate the settled expectations of the parties, 

undermine consistency in this case, and create an erroneous example for other cases.

Therefore, we hold that Michele has standing to pursue her claims as a proper beneficiary of 

the Erla Trust.

¶ 28 Turning to the merits of the case, we examine the Taylors’ challenge to the distribution 

plan, which was proposed by the Bank and approved by the trial court on August 10, 2012.

To the extent that the Taylors argue that the distribution plan was invalid because it was 

based on the invalidity of the second amendment and the 1997 appointment, this argument is 

defeated based on our holding rejecting the Taylors’ challenges to the validity of these trust 

instruments. Likewise, we reject the Taylors’ assertion that allowing the second amendment 

and the 1997 appointment to stand would be inconsistent with the trial court’s May 16, 2011 

order finding another document prepared by Marshall–a “gift document”–to be invalid. The 

“gift document” was not a trust instrument, but instead was a document drafted by Marshall 

and signed by Erla which purportedly gifted Leila with the funds of Erla’s investment 

account.

¶ 29 In the alternative, the Taylors, without citing any legal authority, challenge the 

distribution plan on the basis that it did not strictly follow all of the terms of the 1997 

appointment. The 1997 appointment specified that, upon Erla’s death, Michael and Leila and 

any grandchildren who were not deemed deceased under the Max Trust shall receive 

$250,000, and that the $250,000 share of each grandchild who was deemed deceased under 

the Max Trust “shall be paid equally to the parents of that grandchild.” (Emphasis added.)
- 10 -

The distribution plan called for the $250,000 share of each “deceased” grandchild to be split 

equally between Michael and Leila. According to the Taylors, Marshall (father of Lisa and 

Aimee) and Marion (mother of Michele and Aron), who are parents of a “deceased”

grandchild, should also each receive $250,000. Further, the Taylors argue in the alternative, 

without citing any legal authority and without any citation to the record, that the “5X5 

language” in the Max Trust was not strictly followed in the distribution plan. We find these 

alternative arguments to be forfeited. See In re Marriage of Wassom, 352 Ill. App. 3d 327, 

332-33 (2004) (failure to cite legal authority in a party’s brief forfeits the issue for review); 

Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006) (failure to cite to pages of the record relied upon in 

support of the contentions in a party’s brief forfeits the arguments for review). Forfeiture 

aside, paragraph 3.3(c) of the Max Trust empowered Erla to distribute the principal of the 

Max Trust to his “descendants.” We find that Marshall and Marion were not descendants of 

Max5 and thus were ineligible to take under the 1997 appointment. Thus, the trial court did 

not err in approving the Bank’s distribution plan to allow only Michael and Leila, as both 

descendants of Max and parents to Max’s “deceased” grandchildren, to receive equal shares 

of the “deceased” grandchildren’s inheritance.

¶ 30 We next determine whether the trial court erred in finding that Marshall’s fiduciary 

relationship with Erla began in 1986, which we review under a manifest weight of the 

evidence standard. See Kurtz v. Solomon, 275 Ill. App. 3d 643, 645 (1995). A trial court’s 

finding is not against the manifest weight of the evidence unless an opposite conclusion is 

clearly evident. In re Estate of Wilson, 238 Ill. 2d 519, 570 (2010). If the record contains any 

evidence to support the trial court’s judgment, the judgment should be affirmed. Id.

¶ 31 The Bank’s recovery citation alleged that a fiduciary relationship existed between Erla 

and each defendant, Marshall, Leila and Michael; consequently, transactions that occurred 

after the formation of the fiduciary relationships in which the defendants benefitted were 

presumed to be fraudulent. Prior to trial, the trial court determined that a fiduciary 

relationship existed as a matter of law between Erla and Michael and Erla and Leila, as a 

result of a 1994 durable power of attorney (1994 POA) which Erla signed naming them as 

her agents. At trial, Michael admitted that his fiduciary relationship with his mother, Erla, 

had existed since the death of his father, Max. Based on this evidence, the trial court found 

that Michael’s fiduciary relationship with Erla had existed since the date of Max’s death on 

December 4, 1986. As for Marshall, the trial court found that because he was not named as 

an agent under Erla’s 1994 POA, a fiduciary relationship did not exist between Erla and 

Marshall as a matter of law. Instead, the trial court looked to relevant factors–such as Erla’s 

complete trust and confidence in Marshall’s handling of her financial matters, the disparity in 

their ages, their kinship, and his drafting of various documents on behalf of Erla–in finding 

that Marshall’s fiduciary relationship with Erla began when Max died in 1986 until Erla’s 

death in 2003.

 5

The terms of the Max Trust provided that, upon Erla’s death, the assets in the Max Trust would be 

distributed amongst their children and grandchildren. Because Marshall and Marion were only the 

spouses of the adult children of Erla and Max, they were not “descendants” under the Max Trust.
- 11 -

¶ 32 When no fiduciary relationship exists as a matter of law, the party seeking relief must 

show by clear and convincing evidence the existence of such relationship. In re Estate of 

Martino, 99 Ill. App. 3d 907, 910 (1981); see Simon v. Wilson, 291 Ill. App. 3d 495, 503 

(1997) (where no fiduciary relationship exists as a matter of law, plaintiff must show that 

“one party placed trust and confidence in the other so that the latter gained influence and 

superiority over the former”). Relevant factors in determining whether a fiduciary 

relationship exists include: “the degree of kinship between the parties; the disparity in age, 

health, mental condition and education and business experience between the parties; and the 

extent to which the ‘servient’ party entrusted the handling of [his] business affairs to the 

‘dominant’ party and placed trust and confidence in the ‘dominant’ party.” In re Estate of 

Bontkowski, 337 Ill. App. 3d 72, 78 (2003) (citing Gonzalzles v. American Express Credit 

Corp., 315 Ill. App. 3d 199, 210 (2000)). Once a fiduciary relationship is shown to exist, the 

presumption is that a transaction between the dominant and servient parties which profits the 

dominant party is fraudulent. Lemp v. Hauptmann, 170 Ill. App. 3d 753, 757 (1988). “The 

dominant party then has the burden of proving by clear and convincing evidence that the 

transaction was fair and equitable and did not result from his undue influence over the 

servient party.” Id.

¶ 33 The Taylors do not deny that Marshall had a fiduciary relationship with Erla in 1994, 

when Marshall drafted the 1994 POA on behalf of Erla. However, they contest the trial 

court’s finding that Marshall became a fiduciary to Erla dating back to Max’s death in 1986, 

and argue that he owed no fiduciary duty to Erla between 1986 and 1994. Michele and the 

Bank argue that evidence at trial sufficiently showed that Marshall’s fiduciary relationship 

with Erla started in 1986.

¶ 34 At trial, evidence was presented that Marshall was about 25 years younger than Erla and 

was married to her daughter, Leila. Marshall had a medical degree and later became a 

registered investment advisor with the Securities and Exchange Commission (SEC) and the 

State of California. Erla’s education was limited to one year of college. Marshall testified that 

he had been advising Erla regarding financial matters since 1986; that he had helped Erla 

with her taxes since 1986; that, within a month after Max died, Marshall and Erla contacted 

the Bank to arrange for all correspondences and monthly statements concerning investments 

in the Feinberg Trusts to be sent solely to Marshall; that Erla relied on Marshall to help her 

navigate matters related to the Feinberg Trusts; that, “in the wake of Max’s death,” he 

familiarized himself with Erla’s various bank accounts and participated in converting Erla’s 

accounts into joint tenancies with Leila and Michael; and that both Max and Erla trusted him 

to look after the family’s financial affairs. Trial exhibits showed that on August 2, 1996, 

Marshall wrote a letter to the family in which he explained that, between 1986 and 1996, “[i]t 

fell on me to oversee the Feinberg investment and give guidance to [Erla] regarding decisions 

that needed to be made with regard to the Feinberg Trusts.” A 1986 letter, which was written 

by Marshall to Erla two weeks after Max died, included an explanation to Erla regarding “the 

mechanics of [the Max Trust] and the money coming to [Erla].” Further, trial evidence 

showed that Marshall drafted various documents for Erla after Max’s death, including the 
- 12 -

1994 POA, the 1997 appointment, the second amendment, “gift letters,” and real estate 

documents.

¶ 35 We find that the evidence at trial supported the trial court’s ruling that Marshall’s 

fiduciary relationship with Erla began in 1986 after Max died. We find that Michele and the 

Bank presented clear and convincing evidence that Erla placed trust and confidence in 

Marshall to handle the family’s financial affairs so as to allow Marshall to gain influence and 

superiority over Erla. Evidence regarding Marshall’s formal education, the age disparity 

between him and Erla, the fact that Erla entrusted management of her assets to Marshall, and 

Marshall’s position as Erla’s son-in-law, weighed in favor of finding that Marshall became 

Erla’s fiduciary in 1986.

¶ 36 The Taylors, however, citing In re Estate of Rothenberg, 176 Ill. App. 3d 176 (1988), 

argue that the trial court’s finding was against the manifest weight of the evidence. They 

point to evidence in the record–such as the fact that Marshall was not a trustee of the Erla 

Trust and that Marshall lived in California while Michael and Marcy took care of Erla’s daily 

needs in Chicago–to suggest that an opposite conclusion was apparent. We disagree.

¶ 37 In In re Estate of Rothenberg, a dispute arose between two sisters over the disposition of 

property made by their mother prior to her death. Id. at 178. The mother had executed a land 

trust agreement which named her daughters as beneficiaries, but amended it two days later to 

exclude one of the daughters. Id. at 179-80. In estate proceedings, the disinherited daughter 

alleged that her sister owed their mother a fiduciary duty, that the mother’s mental condition 

was such that she could not manage her own affairs and looked to the sister to do so, and that 

the sister breached her fiduciary duties to the mother. Id. at 181. The trial court heard 

evidence that favored both the disinherited daughter and her sister. Id. at 181-82. In finding 

that the evidence did not show that a fiduciary relationship existed between the mother and 

the sister, the trial court specifically referred to the testimony of two attorney witnesses who 

stated that the mother had the legal capacity, sound mind and sufficient memory to make 

legal decisions. Id. at 182. On appeal, the reviewing court declined to substitute its judgment 

for that of the trial court and found that the trial court’s ruling was not against the manifest 

weight of the evidence. Id. at 184.

¶ 38 Like the Rothenberg court, we decline to substitute our judgment for that of the trial 

court. The trial court is in a superior position to hear and weigh the evidence and determine 

the credibility of the witnesses. In re Estate of Teall, 329 Ill. App. 3d 83, 91 (2002). We find

that the evidence presented at trial supported the trial court’s finding that Marshall’s 

fiduciary relationship with Erla began in 1986. Nor do we accept the Taylors’ argument that 

Marshall owed no fiduciary duty to Erla beginning in 1986 on the basis that the status of a 

“financial advisor” or “financial planner” did not create a fiduciary relationship. We find the 

cases cited by the Taylors in support of this contention to be misplaced. See Joyce v. Morgan 

Stanley & Co., 538 F.3d 797 (7th Cir. 2008); Quintas v. Asset Management Group, Inc., 395 

Ill. App. 3d 324 (2009); Congregation of the Passion, Holy Cross Province v. Touche Ross & 

Co., 224 Ill. App. 3d 559 (1991). Therefore, we hold that the trial court’s finding was not 

against the manifest weight of the evidence.
- 13 -

¶ 39 Next, we determine whether the trial court erred in finding that the $1,630,000 which was 

misappropriated by Leila from Erla’s Vanguard account should be returned to the Erla Trust.

¶ 40 In 1993, the Vanguard investment account, in which Erla, Leila and Michael held joint 

interests, was established. The Vanguard account was opened with funds from various bank 

accounts (the “seed” accounts). The seed accounts consisted solely of funds which were 

owned by Erla. Neither Leila nor Michael contributed any funds that were deposited into the 

seed accounts or the Vanguard account. All of the seed accounts, except the one held by Old 

Kent Bank, were held in joint tenancy by Erla, Leila and Michael. The Taylors received bank 

statements and maintained a checkbook for the Vanguard account at their home in California.

It is undisputed that in 2002, over the course of four separate transactions, Leila transferred a 

total of $1,630,000 from the Vanguard account into her own personal bank account. In the 

May 16, 2011 order, the trial court found that the establishment of the Vanguard account in 

1993 at Marshall’s direction and Leila’s deposit of the $1,630,000 into her own bank account 

in 2002, were presumed to be fraudulent. The trial court ordered those funds to be returned to 

the Erla Trust.

¶ 41 The Taylors do not challenge the trial court’s findings that the establishment of the 

Vanguard account and the transfer of the $1,630,000 to Leila’s personal bank account were 

fraudulent. Instead, they argue, citing Simon, 291 Ill. App. 3d 495, that the parties’ joint 

tenancy in the Vanguard account should have been deemed “severed” and should have been 

converted into a tenancy-in-common account held by Erla’s estate, Michael and Leila. In the 

alternative, they contend that the misappropriated funds should be returned to the seed 

accounts or the Max Trust, rather than the Erla Trust. Michele and the Bank counter that the 

misappropriated funds from the Vanguard account should be returned to the Erla Trust.

¶ 42 We find that the trial court did not err in ordering the misappropriated funds to be 

returned to the Erla Trust. In Simon, a case upon which the Taylors rely, a couple was 

married for 40 years until the wife, Ruth, died. Id. at 500. During their marriage, the couple 

jointly owned sizeable personal and real property. Id. Ruth’s will provided for the transfer of 

property to her daughter and grandchildren upon her death. Id. at 501. While Ruth was ill, her 

husband, Sam, transferred all of the couple’s jointly held securities, worth approximately 

$1.34 million, into a trust he controlled. Id. at 502. After Ruth’s death, Ruth’s daughter and 

grandchildren sued Sam, alleging that he benefitted from the transfer of the securities into his 

trust, that he destroyed Ruth’s survivorship rights to the securities, and that he frustrated 

Ruth’s desire to pass her property to them, and they sought to establish Ruth’s interest in the 

property held in the trust. Id. The trial court granted Sam’s motion to dismiss the claims. Id.

at 503. On appeal, the reviewing court found that Sam owed Ruth a fiduciary duty, that his 

unilateral transfer of the joint tenancy property into his trust “effectively severed the joint 

tenancy,” and the transfer was presumptively fraudulent. Id. at 504. The reviewing court 

stated that, on remand, Sam would be given an opportunity to rebut this presumption with 

clear and convincing evidence. Id. at 504-05. If Sam is unable to overcome the presumption 

of fraud, then, following the severance of a joint tenancy, “the former joint tenants hold the 

property as tenants in common, each with an undivided one-half interest.” Id. at 505.
- 14 -

¶ 43 We find Simon to be factually distinguishable to the case at bar. Here, unlike Simon, 

where the legitimacy of the creation of Sam’s joint tenancy in the property he shared with 

Ruth was not in dispute, the Taylors never had any legitimate ownership rights in the 

Vanguard account. Indeed, the trial court found that the creation of the Vanguard account 

was presumptively fraudulent because it was established after the Taylors and Michael had 

become Erla’s fiduciaries and they failed to rebut the presumption of fraud. Thus, there is no 

legal basis to support the Taylors’ argument that the funds in the Vanguard account should be 

held by Leila, Michael and Erla’s estate as tenants in common so as to allow Leila a one-third 

interest in the Vanguard account funds.

¶ 44 Nor do we find persuasive the Taylors’ arguments in the alternative that the funds 

misappropriated from the Vanguard account should be returned to the seed accounts or the 

Max Trust. The Taylors fail to offer any legal support as to the propriety of this course of 

action, where the seed accounts were funded entirely with Erla’s own money but were 

converted into joint tenancy accounts during the time the Taylors and Michael owed Erla a 

fiduciary duty, and where the Max Trust does not contain any provision that would allow or 

require assets from Erla’s personal bank accounts to be deposited into the Max Trust. See In 

re Marriage of Wassom, 352 Ill. App. 3d at 332-33 (failure to cite legal authority in a party’s 

brief forfeits the issue for review). Thus, we reject the Taylors’ arguments on this issue and 

hold that the trial court properly ordered the return of the misappropriated funds to the Erla 

Trust.

¶ 45 Next, we determine whether the trial court erred in failing to apply a “missing evidence”

presumption against Michael for his alleged misappropriation of funds from Erla’s bank 

accounts between 1987 and November 1997.

¶ 46 The Bank’s recovery citation alleged that Michael misappropriated funds from Erla’s 

various bank accounts between 1998 and 2004, and that the funds rightfully belonged to the 

Erla Trust for distribution to the beneficiaries of the Erla Trust. The various bank accounts 

were joint accounts held by Erla, Leila and Michael at Bank One, Bank of Lincolnwood 

(BOL) and Bank of Wachovia (Wachovia). However, neither Michael nor Leila contributed 

any money to the accounts over the years, but instead, the funds belonged to Erla. After 

Max’s death, Michael exerted complete control over the accounts and the account statements 

were sent directly to him, not Erla. Bank statements dating back to November 1997 showed, 

and the parties stipulated, that Michael made weekly cash withdrawals of $300 from Erla’s 

BOL account and weekly cash withdrawals of $500 from the Bank One account. The trial 

court found, based on trial stipulations and the evidence presented, that Michael withdrew a 

total of $261,000 from the BOL account, a total of $264,000 from the Bank One account, and 

a total of $39,000 from the Wachovia account. Although Michael testified at trial that Erla 

had given him permission to withdraw money from her accounts at will and that some of the 

withdrawn funds were spent for Erla’s benefit, the trial court found no credible corroborating 

evidence to support Michael’s claim that he had permission from Erla to take these funds and 

found that any such funds spent on Erla’s behalf was “de minimis.” The trial court further 

found that the evidence established that Erla was completely unaware of these transactions, 

that there was no adequate consideration paid to her at any time, and that Erla never had 
- 15 -

independent legal or financial advice from any source other than Michael and Marshall 

regarding her assets.

¶ 47 The Taylors argue that, because Michael failed to produce bank statements prior to 1997, 

the trial court should have applied a “missing evidence” presumption against Michael for any 

withdrawals he made between 1987 and November 1997, so as to allow the recovery of 

additional funds to the Erla Trust.

¶ 48 Michael and Michele counter that the Taylors lacked standing to pursue this claim, 

arguing that the Taylors did not “prosecute” any claims against Michael. Michele specifically 

contends that neither she nor the Bank, as the parties suing Michael, requested that the trial 

court apply a “missing evidence” presumption, and thus, the court did not err in not applying 

such a presumption. Michael and Michele further argue that, even if the Taylors had standing 

to pursue this issue, the issue was not properly before the trial court and is forfeited for 

review on appeal. The Bank takes no position with respect to this argument.

¶ 49 We find that Leila, as a beneficiary of the Erla Trust with direct interest in any additional 

funds that may be recovered from Michael, has standing to pursue this claim. See In re Estate 

of Strong, 194 Ill. App. 3d 219, 225 (1990) (decedent’s nephew has standing to appeal the 

circuit court’s order in proceedings of which he was not a party, where he had “direct, 

immediate and substantial interest in the subject matter, which would be prejudiced by the 

judgment or benefited by its reversal”). However, we find that, as Michele and Michael point 

out, the Taylors have forfeited review of this argument, where it was not properly presented 

to the trial court. The record shows that on June 22, 2010, 19 days after trial ended, the 

Taylors filed a posttrial “proposed findings of fact and conclusions of law” (the Taylors’

proposed findings) before the trial court. The Taylors’ proposed findings included a section 

entitled, “potentially applicable presumptions,” which made no mention of any applicability 

of the “missing evidence” presumption. Although another section of the Taylors’ proposed 

findings urged the court to “infer” that Michael had withdrawn money from Erla’s bank 

accounts between 1987 and November 1997, we find that this and similar vague statements 

did not properly present the issue before this court. Further, the Taylors do not cite to the 

record to show that they raised this issue during trial. See Coghlan v. Beck, 2013 IL App (1st) 

120891, ¶ 31 (failure to raise an issue before the trial court forfeits that issue for review on 

appeal). Even if not forfeited, we find that the trial court did not abuse its discretion in 

declining to apply the “missing evidence” presumption, where neither Michele nor the Bank, 

as the parties seeking to recover assets belonging to the Erla Trust pursuant to the recovery 

citation, requested the trial court to apply such a presumption. See generally Tuttle v. 

Fruehauf Division of Fruehauf Corp., 122 Ill. App. 3d 835, 843 (1984) (court did not abuse 

its discretion in not giving jury a specific instruction allowing jury to draw adverse inference 

from a party’s failure to produce evidence solely within that party’s control). Therefore, we 

hold that the trial court did not err in declining to apply a “missing evidence” presumption 

against Michael at trial for his alleged misappropriation of funds from Erla’s bank accounts 

between 1987 and November 1997.

¶ 50 We next determine whether the trial court erred in finding that the Taylors 

misappropriated $18,770 from a Morgan Stanley account that belonged to Erla.
- 16 -

¶ 51 In the May 16, 2011 order, the trial court found that the Taylors and Michael fraudulently 

took possession of Erla’s investment accounts at TD Waterhouse, Morgan Stanley Annuities, 

Morgan Stanley, and Mesirow Financial. The trial court found that all of these investment 

accounts were titled as “joint tenancy accounts” after Erla signed a durable power of attorney 

naming Michael and Leila as her agents in June 1994. The trial court found that Michael took 

a total of $23,333 from the Morgan Stanley Annuities account; $56,651 from the Morgan 

Stanley account; and $18,811 from the Mesirow Financial account. The trial court further 

found that the Taylors took a total of $94,081 from the TD Waterhouse account; $23,333 

from the Morgan Stanley Annuities account; $18,811 from the Mesirow Financial account; 

and $18,770 from the Morgan Stanley account.6

¶ 52 The Taylors argue that the trial court’s erroneous ruling that they had taken $18,770 from 

Erla’s Morgan Stanley account was not supported by the evidence; thus, they should not be 

liable for this amount.

¶ 53 The Bank acknowledges that the trial court mistakenly attributed the origins of the 

$18,770 to the Morgan Stanley account, but argues that it had originated in the Mesirow 

Financial account. The Bank explains that the trial court’s mistake can be traced to a report 

created by its trial expert, Thullen, who mistakenly stated that the $18,770 derived from the 

Morgan Stanley account instead of the Mesirow Financial account. The Bank, however, 

argues that the trial court’s mistaken reference to the Morgan Stanley account rather than the 

Mesirow Financial account did not change the fact that the Taylors took $18,770 from Erla 

which did not belong to them. In reply, the Taylors assert that the evidence did not support 

the Bank’s explanation. Michele and Michael’s response briefs are silent on this issue.

¶ 54 The parties’ trial stipulations showed that, after Erla died, Leila received $23,333 from 

the Morgan Stanley Annuities account and $18,811 from the Mesirow Financial account. The 

record shows that a report created by the Bank’s trial expert witness in forensic accounting, 

Thullen, stated that Leila received $18,770 from the Morgan Stanley account in November 

2003. At trial, Thullen clarified that the $18,770 sum was actually withdrawn from the 

Mesirow Financial account, not the Morgan Stanley account, and was made payable to Leila 

in November 2003. Based on our thorough review of the records, we find that the evidence 

supports only one disbursement of funds to the Taylors from the Mesirow Financial account 

in November 2003. That amount was stipulated by the parties to be $18,811, for which the 

trial court found the Taylors to be liable. The Bank’s arguments before this court suggest that 

there were two improper distributions made to the Taylors from the Mesirow Financial 

account–one for $18,811, and another for $18,770. However, we can find no support for this 

in the record and conclude that there is no support in the record for a finding that the Taylors 

received two disbursements from the Mesirow Financial account in November 2003 or at any 

other time. Thus, we find that only the amount stipulated by the parties to have been 

improperly taken by the Taylors from the Mesirow Financial account–$18,811–will stand.

Accordingly, we reverse the trial court’s ruling that the Taylors improperly took an additional 

$18,770 from the Morgan Stanley (or Mesirow Financial) account.

 6

The Morgan Stanley Annuities account is separate from the Morgan Stanley account. 
- 17 -

¶ 55 We now turn to Michele’s arguments on appeal. On appeal, Michele argues that: (1) the 

trial court abused its discretion in declining to award punitive damages; (2) the trial court 

erred in ruling that funds disbursed by Erla’s “gifting program” were not subject to recovery; 

(3) the trial court erred in declining to impose constructive trusts against Michael and the 

Taylors; (4) the trial court erred in finding that evidence at trial was insufficient to subject 

Erla’s Florida condominium to recovery; (5) the trial court erred in finding that the remaining 

counts of Michele’s tort action alleging intentional interference with testamentary expectancy 

need not proceed as they were duplicative of the remedy sought in the recovery citation; (6) 

the distribution plan contradicted the express terms of the Feinberg Trusts; and (7) she was 

entitled to more than $100,000 in reasonable attorney fees.

¶ 56 We first determine whether the trial court abused its discretion in declining to award 

punitive damages to Michele. See Franz v. Calaco Development Corp., 352 Ill. App. 3d 1129, 

1137-38 (2004) (for a bench trial, whether punitive damages should be awarded is reviewed 

under an abuse of discretion standard; the trial court’s finding that defendant’s conduct was 

not willful or malicious is reviewed under a manifest-weight standard).

¶ 57 In its May 16, 2011 order, the trial court found that the evidence presented at trial was 

insufficient to rebut the presumption of undue influence against the Taylors and Michael 

during the relevant times they owed a fiduciary duty to Erla. The trial court, however, found 

that neither the Taylors nor Michael willfully or maliciously exercised undue influence over 

Erla. The trial court specifically noted that they “acted purely out of greed for themselves and 

their respective children,” but that there was no evidence that they ever acted to the detriment 

of Erla nor was there ever any malicious action directed toward her. The trial court stated that 

Erla was well cared for, that her bills were always paid, and that Erla possessed sufficient 

funds to maintain her standard of living and care at all times.

¶ 58 Michele argues that the trial court’s refusal to impose punitive damages against the 

Taylors and Michael was erroneous, where they breached their fiduciary duties to Erla and 

acted with wanton disregard of the beneficiaries by misappropriating a substantial amount of 

money from Erla. She contends that the trial court ignored uncontroverted evidence that the 

Taylors and Michael committed “multiple serious felony crimes,” which warranted the 

imposition of punitive damages against them. Further, Michele proffers that imposing 

punitive damages against them is the only way to deter similar conduct in the future.

¶ 59 The Taylors counter that Michele has forfeited review of this issue on appeal because it 

was only raised in her lawsuit against the Taylors and Michael, but was not sought in the 

recovery citation. They contend that, regardless of forfeiture, the trial court’s findings that

neither the Taylors nor Michael acted willfully or maliciously against Erla were not against 

the manifest weight of the evidence, and the trial court’s ultimate decision to deny punitive 

damages was not an abuse of discretion.

¶ 60 Michael argues that the trial court did not abuse its discretion in declining to impose 

punitive damages against him. He contends that the trial court was in the best position to 

assess the character of his conduct, and that it was undisputed he devoted an enormous 

amount of time to Erla’s care during the last 15 years of her life. Michael further argues that 

the trial court’s decision not to impose punitive damages was proper, where it had already 
- 18 -

assessed $270,000 of attorney fees against him in favor of the Bank. He asserts that Michele 

had not pointed to any aggravating circumstances that would allow her to collect punitive 

damages.

¶ 61 The purposes of punitive damages are to punish a specific defendant and to deter similar 

conduct in the future. Franz, 352 Ill. App. 3d at 1137. Such damages will be awarded “only 

where the defendant’s conduct is willful or outrageous due to evil motive or a reckless 

indifference to the rights of others.” Id. “Because punitive damages are not favored in the law 

[citation], they are available only in cases where the wrongful act complained of is 

characterized by wantonness, malice, oppression, willfulness, or other circumstances of 

aggravation [citation].” Id.

¶ 62 We first address the Taylors’ argument that Michele had forfeited her claim for punitive 

damages on appeal. The record shows that after Michele joined as a party to the recovery 

citation in August 2009, she sought leave of court to amend the recovery citation to include 

the recovery of the following: Erla’s Florida condominium; funds taken from Erla’s “gifting 

program”; and a claim for punitive damages. The trial court only granted Michele leave to 

amend the recovery citation to include Erla’s Florida condominium and the “gifting

program” funds, but denied her leave to amend as to the claim for punitive damages.

However, a request for punitive damages was contained in Michele’s separate lawsuit 

alleging misappropriation of funds against the Taylors and Michael. As noted, claims in both 

the recovery citation and Michele’s lawsuit were heard by the court at the 2010 bench trial.

While Michele did not specifically challenge on appeal the trial court’s denial to include a 

claim for punitive damages in the recovery citation, her appeal of the trial court’s May 16, 

2011 final judgment drew into question all interlocutory orders that produced the final order.

See Pace Bus Co. v. Industrial Comm’n, 337 Ill. App. 3d 1066, 1069 (2003). Further, because 

a request for punitive damages was made in Michele’s lawsuit against the Taylors and 

Michael, which was properly before the trial court in the bench trial, we find this issue to be 

properly before us on appeal.

¶ 63 However, we find that the trial court’s decision to deny punitive damages was not 

erroneous. Michele claims that the trial court acted inconsistently in finding that the Taylors 

and Michael failed to rebut the presumption of undue influence by clear and convincing 

evidence, while also finding that they did not act willfully or maliciously toward Erla. We 

reject this contention. While the Taylors and Michael failed to rebut the presumption of 

undue influence by clear and convincing evidence, the record does not show that any of their 

conduct was borne of an evil motive or a complete reckless disregard for others. Rather, the 

evidence supports the trial court’s findings that the parties “acted purely out of greed for 

themselves and their respective children,” but that there was no evidence whatsoever of any 

malicious actions toward Erla. Michele also makes various arguments that the Taylors and 

Michael committed “multiple serious felony crimes,” which warranted the imposition of 

punitive damages, by pointing to Marshall’s drafting of legal documents in violation of the 

Consumer Fraud Act, Michael’s alleged forgery of Max’s dividend checks after Max died, 

and the Taylors and Michael’s alleged exploitation of an elderly person under state statutes.

We decline to make any findings as to whether the parties’ actions amounted to criminal 
- 19 -

conduct, where such criminal issues were not before the trial court and there was no evidence 

that the parties were even charged with any crimes. Thus, we reject Michele’s claim for 

punitive damages on this basis. Nor do we find persuasive Michele’s arguments that the 

Taylors’ financial status as high net-worth individuals should be considered in determining 

whether they would be sufficiently deterred from committing similar conduct in the future.

We find that the Taylors’ financial status bears no relevance to the trial court’s findings that 

there was no evidence that the parties acted maliciously toward Erla. Further, Michele 

speculates that neither the Taylors nor Michael has been deterred from committing similar 

conduct in the future. While we do not condone the Taylors’ and Michael’s conduct at issue, 

we decline to engage in speculation as to whether they were sufficiently deterred from 

committing similar actions in the future where the trial court was in the best position to 

evaluate the parties’ conduct in this case. See Franz, 352 Ill. App. 3d at 1149 (“[e]ven if we 

may not agree with the trial court’s decision not to impose punitive damages, we cannot 

substitute our judgment for that of the trial court”). Because the evidence supports the trial 

court’s findings that the Taylors and Michael were motivated by greed, not maliciousness 

toward Erla, we find that a reasonable person could have ruled the way the trial court did.

Accordingly, we hold that the trial court did not abuse its discretion in ultimately declining to 

impose punitive damages. See id. (declining to impose punitive damages despite the court’s 

finding of bad faith).

¶ 64 We next determine whether the trial court erred in finding that funds disbursed by Erla’s 

“gifting program” were not subject to recovery. We review this issue under a manifest weight 

of the evidence standard. See Lozman v. Putnam, 379 Ill. App. 3d 807, 820 (2008) (factual 

findings made by a trial court during a bench trial are reviewed under a manifest weight of 

the evidence standard).

¶ 65 Prior to Max’s death in 1986, Max and Erla started a program of annual gifting to their 

descendants (the gifting program). This program took advantage of tax laws. Initially, the 

gifting program transferred $10,000 annually to each of Max and Erla’s children and five 

grandchildren. Following Max’s death, in a letter dated August 20, 1987, Jerry Kaplan 

(Attorney Kaplan), as counsel for Max and Erla, informed Erla that the Bank’s in-house 

counsel, Stan Richards, “suggested that I advise you to continue the program of gifts to the 

children and grandchildren started by Max with a view toward diminishing your assets for 

tax purposes.” At trial, Marshall testified that he was aware of Attorney Kaplan’s August 

1987 letter to Erla, and that between 1987 and 1997, Marshall had a series of conversations 

with Erla regarding the gifting program. During these conversations, Marshall and Erla 

discussed the amounts she would need to gift at different times because “more great 

grandchildren came about.” Marshall testified that, at all times, Erla told him that she 

understood the nature of the gifting program and wanted to continue making these annual 

gifts. Trial exhibits show that, on April 29, 1996, Marshall wrote a letter to Michael and his 

wife, Marcy, “to share with [them] both some thoughts [Marshall] [had] regarding [Erla’s] 

assets and the distribution of same.” Marshall’s letter suggested that they “embark on a 

program to maximize the transfer of assets to the grandchildren,” that they annually gift 

$10,000 to each of Erla’s great grandchildren, and that gifting $10,000 annually to Marcy 
- 20 -

and Marshall each would “effectively legally transfer[ ] an extra $10,000 to Michael and 

Leila.” The letter further stated that this program would “maximize getting money out of the 

estate *** [i]t either goes to each family member or it goes to the government.” Marshall 

testified that in 1996, Erla continued to fill out all of the gifting program checks on her own.

Marshall’s and Leila’s testimony showed that, however, in later years, Marshall and Michael 

helped Erla fill out the checks that Erla signed because “the number of checks got to be so 

large [that] she asked for secretarial help.” Trial exhibits showed that on July 23, 1997, Erla 

signed an updated durable power of attorney that Marshall drafted, which again named Leila 

and Michael as her agents (the 1997 POA). The 1997 POA resembled the terms of the 1994 

POA, with the exception of an added paragraph regarding the gifting program. The relevant 

portions of the 1997 POA directed that annual gifts to Erla’s “children, their spouses, [her] 

grandchildren and [her] great grandchildren including those not yet born be continued in an 

amount to each equal to the maximum permitted by law to be transferrable free of any gift 

tax.” At trial, Marshall testified that, after drafting the 1997 POA, he presented it to Erla and 

explained the added language to her. Erla, who read over the added language, agreed to the 

language terms and signed the 1997 POA without asking Marshall any questions. In May 

1999, Michael and Leila exercised the 1997 POA to include Aunt Frieda (Max’s sister) as a 

recipient of the gifting program, who received $10,000 annually from the Max Trust until her

death in 2005.

¶ 66 The trial court found that funds disbursed by the gifting program were not subject to 

recovery:

“[S]uch program was wisely implemented to take advantage of the annual gift tax 

exclusions and that all of the Feinberg family members benefitted from the program.

The evidence established that Erla was aware of the gift-giving program, she signed 

all the checks, and the gifts were given to her children, grandchildren and great 

grandchildren and all shared equally as a result of the program.”

¶ 67 Michele argues that the trial court’s ruling was erroneous because “wise tax planning”

was not a valid defense to financially exploiting the elderly or tortiously interfering with her 

testamentary expectancy. She contends that, even if it were a valid defense, there was no 

evidence that the gifting program saved any estate taxes and that Erla’s estate “probably lost 

[money]” as a result of Marshall’s expanded gifting program. Michele argues that there was 

no evidence that Erla understood the expansion of the gifting program, and that the Taylors 

and Michael did not rebut the presumption that the expanded gifting program was the product 

of fraud. Michele further contends that, contrary to the trial court’s factual finding, the 

descendants did not share equally under the expanded gifting program because she was 

unmarried and had no children at the time it was implemented.

¶ 68 The Taylors counter that Michele’s arguments should be stricken for failure to cite the 

relevant standard of review, pursuant to Illinois Supreme Court Rule 341(h) (eff. Sept. 1, 

2006). They argue that, even if not stricken, the trial court’s finding was not against the 

manifest weight of the evidence because the expanded gifting program sought to distribute 

wealth to as many family members as possible without tax consequences. The Taylors point 

out that Michele herself received a total of $170,000 from the gifting program over 17 years, 
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and that Michele had endorsed the family’s goals to “decrease the inheritance tax burden.” 

Michael adopts the arguments proffered by the Taylors on this issue.

¶ 69 As discussed, once a fiduciary relationship is established, any transaction between the 

parties which benefits the dominant party is presumed to be fraudulent. Lemp, 170 Ill. App. 

3d at 757. The dominant party then has the burden of proving by clear and convincing 

evidence that the transaction was fair and equitable, and did not result from his undue 

influence over the servient party. Id. Factors in meeting the burden of proof to rebut the 

presumption of fraud include: “(1) showing that, before the transaction, the fiduciary made a 

frank disclosure of all relevant information; (2) the fiduciary paid adequate consideration for 

the transaction; and (3) the principal had competent and independent legal advice.” In re 

Estate of Teall, 329 Ill. App. 3d at 88.

¶ 70 We examine this issue on its merits and decline the Taylors’ invitation to strike Michele’s 

arguments for failing to cite the relevant standard of review. Based on our review of the 

record, we find no basis to question the trial court’s assessment of the evidence. The record 

shows that the gifting program began prior to Max’s death in 1986 and was later expanded to 

include gifting to Erla’s great grandchildren around 1996 or 1997, at a time when the Taylors 

and Michael had a fiduciary relationship with Erla. While it is true that the gifting program 

expanded to include an annual gifting of $10,000 to Marcy and Marshall, Marshall explained 

that doing so would “effectively legally transfer[ ] an extra $10,000 to Michael and Leila.” 

The most dramatic aspect of the expanded gifting program was the inclusion of Erla’s great 

grandchildren (the Taylors’ and Michael’s grandchildren) as recipients under the gifting 

program. Indeed, Michele’s reply brief clarifies that she only sought to recover the 

approximately $440,000 disbursed to these great grandchildren under the gifting program.

Because Michele only sought to recover the funds given to the great grandchildren, but not 

those disbursed to the Taylors or Michael as Erla’s fiduciaries, she cannot now argue that the 

presumption of fraud was triggered as to them. Thus, the Taylors and Michael need not 

provide any evidence to rebut the presumption.

¶ 71 Even assuming, arguendo, that the Taylors and Michael somehow personally profited 

from the disbursement of funds to Erla’s great grandchildren under the gifting program, that 

does not negate the underlying reason for expanding the gifting program, specifically as a 

way to diminish the estate’s tax burdens. The gifting program was implemented prior to 

Max’s death in 1986, and Attorney Kaplan had advised Erla to continue making annual gifts 

to her descendants after Max’s death. There was no evidence that Erla was mentally deficient 

when Marshall explained to her the benefits of expanding the gifting program, nor was there 

any indication of her failure to understand the gifting program when she executed the 1997 

POA. Indeed, evidence was presented to the trial court that Erla was filling out the checks on 

her own until at least 1996. While the circumstances surrounding Erla’s signing of the 1997 

POA primarily stemmed from Marshall’s testimony, it was within the trial court’s province 

to weigh and determine the credibility of his testimony. In re Estate of Teall, 329 Ill. App. 3d 

at 91 (it is within trial court’s province to hear and weigh the evidence and determine the 

credibility of the witnesses). Accordingly, we conclude that the trial court’s finding was 

consistent with the manifest weight of the evidence.
- 22 -

¶ 72 We next determine whether the trial court erred in declining to impose constructive trusts 

against the Taylors and Michael, which we review under an abuse of discretion standard. See 

Dealer Management Systems, Inc. v. Design Automotive Group, Inc., 355 Ill. App. 3d 416, 

419 (2005) (whether to award relief from a judgment lies within the sound discretion of the 

trial court).

¶ 73 In the May 16, 2011 order, the trial court granted the Bank’s recovery citation, stating 

that “[t]he total amount that [the Taylors] [were] deemed to hold in constructive trust for the 

benefit of [the Erla Trust] [was] $1,911,107 plus the [Bank’s] reasonable attorney fees and 

costs,” and that “[t]he total amount that Michael [was] deemed to hold in constructive trust 

for the benefit of [the Erla Trust] [was] $788,957 plus the [Bank’s] reasonable attorney fees 

and costs.” Thereafter, the Bank issued postjudgment citations to discover assets 

(postjudgment citations) against the Taylors and their financial institutions, in an attempt to 

trace the assets that the Taylors had misappropriated from the Erla Trust; to determine the 

current value of those funds; and to recover any returns on investments made on the 

misappropriated funds. Subsequently, on August 5, 2011, the Taylors satisfied the 

$1,911,107 judgment against them. The Bank then dismissed the postjudgment citations 

against the Taylors’ financial institutions, but refused to dismiss the postjudgment citations 

against the Taylors personally. On August 9, 2011, the Taylors filed a motion to quash the 

remaining postjudgment citations, arguing that they had already paid the face value of the 

judgment against them. In response, on August 10, 2011, the Bank argued that the trial 

court’s May 16, 2011 order imposed a constructive trust against the Taylors, which 

“creat[ed] a new obligation on [the Bank] to determine the current value of those trust assets 

taken by the Taylors and restore them to the Erla Trust,” along with any gains in investments 

that the Taylors may have earned as a result of retaining the misappropriated funds. On 

August 12, 2011, the trial court granted the Taylors’ motion to quash the postjudgment 

citations, clarifying that its May 16, 2011 order “entered a money judgment as to a fixed 

dollar amount.”

¶ 74 Michele argues on appeal that the trial court’s August 12, 2011 order granting the 

Taylors’ motion to quash the Bank’s postjudgment citations, directly contradicted its May 16, 

2011 order which imposed constructive trusts against the Taylors and Michael. She further 

contends that the trial court’s August 12, 2011 order was grossly inequitable.

¶ 75 The Taylors counter that the trial court did not err in declining to impose constructive 

trusts against them. They argue that the trial court’s August 12, 2011 order confirmed that the 

May 16, 2011 order entered only a money judgment, rather than a constructive trust, against 

the Taylors. The Taylors further contend that this court need not resolve this issue because 

the imposition of constructive trusts was not a remedy pursued in the recovery citation at 

trial, and that the remedy was only pursued in Michele’s separate tort action for intentional 

interference with a testamentary expectancy against the Taylors and Michael. Neither the 

Bank nor Michael raised any arguments pertaining to this issue on appeal.

¶ 76 The purpose of a constructive trust is to prevent unjust enrichment. A.T. Kearney, Inc. v. 

INCA International, Inc., 132 Ill. App. 3d 655, 665 (1985). “Where a defendant has obtained 

money to which he is not entitled, under such circumstances that in equity and good 
- 23 -

conscience he ought not to retain it, the rightful owners of the money can claim it through a 

constructive trust to avoid unjust enrichment.” (Internal quotation marks omitted.) Norton v. 

City of Chicago, 293 Ill. App. 3d 620, 628-29 (1997).

¶ 77 We find Michele’s arguments to be without merit. Although the court’s May 16, 2011 

order, in granting the Bank’s recovery citation, used the term “constructive trust” to describe 

the misappropriated funds held by the Taylors and Michael, the imposition of constructive 

trusts was not a remedy pursued by the Bank’s recovery citation at trial. Rather, it was a 

remedy pursued only by Michele in her separate tort action against the parties at trial, which 

the court found to be “duplicative” of the recovery citation. Indeed, the trial court’s August 

12, 2011 order, which granted the Taylors’ motion to quash, clearly confirmed that the court 

had only entered a “money judgment as to a fixed dollar amount” against the Taylors and 

Michael in its previous May 16, 2011 order. Thus, we find that the court’s usage of the term 

“constructive trust” was a matter of semantics used to describe the process by which the 

Taylors and Michael diverted funds from the rightful owner, rather than a specific remedy 

imposed by the court. Even had the trial court actually imposed constructive trusts against the 

Taylors and Michael for the amounts specified in the court’s May 16, 2011 order, we find no 

reason to disturb the trial court’s decision not to increase the judgment amounts by the then 

present value of the funds and any profits made by the Taylors and Michael as a result of 

those funds. See generally A.T. Kearney, Inc., 132 Ill. App. 3d at 665 (constructive trust 

imposed against defendant for $106,452, the exact amount of money defendant actually 

received); Sadacca v. Monhart, 128 Ill. App. 3d 250, 257 (1984) (constructive trust imposed 

against defendant for the exact amount of money she wrongfully received). In fact, in the 

May 16, 2011 order, the trial court rejected Michele’s claim that she was entitled to a 

judgment against the Taylors and Michael for the present value of the misappropriated funds, 

finding that the testimony of Michele’s trial expert witness, Stringer, was unclear, “based on 

conjecture” and unpersuasive with regard to the present day value of the funds taken by the 

Taylors and Michael. Accordingly, we hold that the trial court did not abuse its discretion in 

declining to impose constructive trusts against the Taylors and Michael.

¶ 78 We next determine whether the trial court erred in finding that evidence at trial was 

insufficient to subject Erla’s Florida condominium to recovery, which we also review under a 

manifest weight of the evidence standard. See Lozman, 379 Ill. App. 3d at 820.

¶ 79 In 1972, Erla purchased a condominium in Aventura, Florida (the Florida condominium), 

which she solely owned until 1990. In June 1990, Erla executed a warranty deed transferring 

her sole ownership interest in the Florida condominium to joint tenancy between Erla, 

Michael and Leila. The warranty deed was drafted by Marshall and signed by Erla. The terms 

of the warranty deed specified that Erla had received “good and valuable” consideration from 

Michael and Leila. The parties stipulated that on July 1, 1990, the warranty deed transferring 

the Florida condominium to Erla, Michael and Leila as joint tenants was recorded with the 

county recorder of deeds. Marshall testified that no attorney was involved in the deed 

transfer, and that, to his knowledge, Erla did not consult any legal or financial advisors in 

connection with the transaction. In 1996, Michael and Leila entered into an agreement in 

which they agreed to pay equally all expenses required for the maintenance of the Florida 
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condominium and to sell the property either upon Erla’s death or when she could no longer 

live independently on the property.

¶ 80 The trial court held that the evidence at trial was insufficient to subject the Florida 

condominium to recovery under the recovery citation.

¶ 81 Michele argues that the trial court’s ruling was against the manifest weight of the 

evidence because Marshall and Michael, who were Erla’s fiduciaries since 1986, failed to 

rebut the presumption that the 1990 deed transfer of the Florida condominium was 

fraudulent.

¶ 82 Marshall argues that the trial court’s ruling was not against the manifest weight of the 

evidence, where Erla was indisputably competent at the time she executed the warranty deed 

and no party provided any valuation of the Florida condominium at trial. Michael adopts 

Marshall’s arguments pertaining to this issue on appeal.

¶ 83 We find that the trial court’s ruling was not supported by the manifest weight of the 

evidence. At the time Erla transferred ownership of the Florida condominium into a joint 

tenancy between herself, Michael and Leila, Marshall and Michael had fiduciary 

relationships with Erla. Additionally, Marshall, the drafter of the deed which transferred the 

property, was Leila’s husband. Thus, we find that the transaction is presumptively fraudulent.

See Lemp, 170 Ill. App. 3d at 757. The burden was upon Michael, Leila and Marshall to 

prove by clear and convincing evidence that the transaction was fair and equitable and did 

not result from their undue influence over Erla. See id. Although Erla was competent at the 

time that she executed the deed which transferred the property and the deed states that she 

received “good and valuable” consideration, clear and convincing evidence did not exist 

establishing that the transaction was fair and equitable and that it was not the result of undue 

influence. Such scant evidence is grossly insufficient to overcome the presumption of fraud 

which arose from the transfer. Therefore, we hold that the trial court’s refusal to subject the 

Florida condominium to recovery was against the manifest weight of the evidence and we 

reverse its determination on the issue.

¶ 84 Next, we determine whether the trial court erred in finding that the remaining counts of 

Michele’s tort action alleging intentional interference with testamentary expectancy need not 

proceed as they were duplicative of the remedy sought in the recovery citation.

¶ 85 In 2004, Michele filed a lawsuit against Michael and the Taylors in the law division of 

the circuit court, alleging that they misappropriated millions of dollars in assets from Max’s 

and Erla’s estates (case No. 04 L 7195). In the third amended complaint, Michele alleged 

counts for intentional interference with testamentary expectancy (counts I and II), conspiracy 

by the Taylors and Michael to intentionally interfere with testamentary expectancy (count 

III), and requested that a constructive trust be imposed against them for assets which they had 

misappropriated from Erla and the estates of Max and Erla (count IV). In 2007, the Bank, as 

corporate trustee of the Feinberg Trusts, filed the instant recovery citation to recover assets 

against Michael and the Taylors. Both the recovery citation and Michele’s tort action were 

the subject of the instant trial. At trial, the trial court granted a motion for directed finding in 

favor of the Taylors and Michael on count III of Michele’s third amended complaint. In the 

May 16, 2011 order, in granting the recovery citation, the trial court found that the remaining 
- 25 -

counts of Michele’s tort action for intentional interference with testamentary expectancy 

need not proceed as they were duplicative of the remedy sought in the recovery citation. The 

trial court, citing In re Estate of Roeseler, 287 Ill. App. 3d 1003 (1997), noted that Michele 

had not been “additionally damaged by the tortious conduct” of Michael and the Taylors, and 

that the remedy sought in the recovery citation under the Probate Act (755 ILCS 5/16-1 

(West 2010)) was sufficient and adequate to grant Michele the relief to which she was 

entitled.

¶ 86 Michele argues that she should have been allowed to proceed with her tort action alleging 

intentional interference with expectancy, arguing that the remedy provided in the recovery 

citation was inadequate to grant her relief. She contends that In re Estate of Roeseler was 

inapplicable and that her tort action was not “duplicative” of the Bank’s recovery citation 

because her tort action was filed prior to the Bank’s filing of the recovery citation. Michele 

further asserts that the trial court had in fact ruled on the merits of some claims found only in 

Michele’s tort action, such as the claim of conspiracy (count III), but that the court had 

ignored her allegation that she was injured by Marshall’s “manipulation of Max and Erla[’s] 

estate plans to benefit the Taylor family at Michele’s expense.”

¶ 87 The Taylors counter that the trial court properly found that the recovery citation provided 

Michele with a sufficient and adequate remedy. They contend that Michele’s tort claim for 

intentional interference with testamentary expectancy was based on her alleged 12.5% share 

of the Erla Trust, which was identical to the share percentage Michele was entitled to receive 

pursuant to the recovery citation. The Taylors note that in fact, Michele had already received 

her full distribution from the Erla Trust. Thus, they argue, Michele’s alleged damages 

pursuant to her tort action were entirely duplicative of her share of recovery pursuant to the 

citation. The Taylors further argue that the recovery citation’s probate remedies were not 

only available to Michele, but that she had actively joined as a party to the recovery citation.

The Taylors argue, in the alternative, that even if Michele’s tort claim was not duplicative of 

the recovery citation, the record was replete with evidence to deny it.

¶ 88 Michael argues that the trial court properly determined that Michele’s claim of intentional 

interference with testamentary expectancy was duplicative of the recovery citation, where 

Michele sought exactly the same recovery as the Bank did in its citation–that is, the funds 

which were misappropriated from Erla. Michael points out that the Bank’s recovery citation, 

“secured for Michele, and all other beneficiaries of Erla’s [T]rust and estate, exactly the same 

amounts from Michael which had been sought by way of Michele’s interference with an 

expectancy claim.” Michael further contends that the mere fact that punitive damages might 

have been recoverable under Michele’s tort claim, but not under the recovery citation, did not 

justify maintaining a separate claim for intentional interference with testamentary 

expectancy.

¶ 89 In In re Estate of Roeseler, the decedent’s stepdaughter, who was omitted from the 

decedent’s final will, brought a will contest against the respondents alleging lack of 

testamentary capacity and undue influence, as well as a tort action for intentional interference 

with her economic expectancy under the decedent’s will. In re Estate of Roeseler, 287 Ill. 

App. 3d at 1005. The respondents filed a motion for summary judgment as to the 
- 26 -

stepdaughter’s will contest petition, which the trial court granted. Id. Thereafter, the trial 

court dismissed the stepdaughter’s tort action for intentional interference, on the ground that 

the wrongful conduct alleged therein was identical to the conduct alleged in her petition for 

will contest which had been defeated on summary judgment. Id. On appeal, the reviewing 

court found that fact questions as to whether the decedent lacked testamentary capacity or 

whether the beneficiaries exerted undue influence over him precluded summary judgment.

Id. at 1015, 1019. The reviewing court further held that the dismissal of the stepdaughter’s 

tort action for intentional interference was premature, stating that “the availability of probate 

relief [was] only speculative pending the consideration of the decedent’s prior wills by the 

probate court.” Id. at 1021. The reviewing court stated in general that where “a will contest is 

available and would provide an adequate remedy to the petitioner, no tort action will lie,” but 

that “if no adequate remedy is available through probate proceedings, a tort action is 

permissible.” Id. The reviewing court noted that, if on remand the stepdaughter succeeds in 

her will contest, then dismissal of her tort claim would be appropriate because the probate 

proceedings would provide an adequate remedy to her. Id.

¶ 90 We find that the trial court did not err in finding that the remaining counts of Michele’s 

tort action for intentional interference with testamentary expectancy need not proceed as they 

were duplicative of the remedy sought in the recovery citation. While In re Estate of Roeseler

dealt with the probate remedy afforded by way of a will contest, we find that the recovery 

citation in the instant case is likewise a probate remedy under the Probate Act (755 ILCS 

5/16-1 (West 2010)). Thus, applying the principles of In re Estate of Roeseler, we find that a 

probate remedy was made available to Michele pursuant to the recovery citation, to which 

she was a party, and that the remedy sought in the recovery citation was adequate to grant 

Michele proper relief in recovering assets from the Taylors and Michael. The mere fact that 

punitive damages were alleged in Michele’s tort claim, but not in the recovery citation, could 

not provide a basis for the tort action to proceed. See In re Estate of Roeseler, 287 Ill. App. 3d 

at 1021 (“[i]n determining the adequacy of the relief, an award for punitive damages is not 

considered a valid expectation”).

¶ 91 Nonetheless, Michele argues that the recovery of assets to the Erla Trust pursuant to the 

recovery citation did not afford an adequate remedy because they did not encompass the 

“inter vivos transfers” made during Erla’s lifetime. In support of this argument, Michele 

points to count I of her tort action, which alleged that Marshall improperly manipulated 

Erla’s estate plans. We disagree.

¶ 92 In count I of Michele’s tort action for intentional interference with testamentary 

expectancy, she alleged that Marshall manipulated the Feinberg estate plans by drafting 

Erla’s 1997 appointment over the Max Trust and the second amendment to the Erla Trust, 

which in effect allowed the Taylor family to receive more money from the estates at the 

expense of the Feinberg family, including Michele. We find Michele’s argument to be 

unpersuasive. Erla’s exercise of her power of appointment over the Max Trust pursuant to the 

1997 appointment, and her execution of the second amendment which deleted the Jewish 

clause from the Erla Trust, could not be considered “inter vivos transfers” of property 
- 27 -

because Erla was free to execute subsequent amendments to her trust and retained the power 

of appointment over the Max Trust until her death in 2003.

¶ 93 Even assuming, arguendo, that the 1997 appointment and the second amendment were 

lifetime transfers of Erla’s property, we find that Michele stood to inherit money from the 

Erla Trust as a direct result of the deletion of the Jewish clause in the Erla Trust by the 

second amendment. As the trial court noted, Michele had not been “additionally damaged”

by the conduct of the Taylors and Michael so as to warrant maintaining a separate tort action 

against them. Michele further argues that her tort action was not duplicative of the recovery 

citation on the basis that her tort action was filed prior to the recovery citation. We reject this 

contention. Both the recovery citation and Michele’s tort action were before the court at the 

same time at trial. We further find Michele’s cited cases to be misplaced, where the issues at 

the heart of those cases pertained to the statute of limitations applicable to bringing a claim 

for intentional interference with expectancy, rather than a determination on whether the tort 

claim was duplicative of other available probate relief. See Bjork v. O’Meara, 2013 IL 

114044 (tortious interference with testamentary expectancy claim was governed by statute of 

limitations for claims to recover personal property); In re Estate of Luccio, 2012 IL App (1st) 

121153 (whether the six-month limitation on trust challenges applied to a claim for 

intentional interference with inheritance expectancy); In re Estate of Ellis, 236 Ill. 2d 45 

(2009) (six-month limitation period did not apply to charitable hospital’s tort claim for 

tortious interference with an inheritance expectancy); but see DeHart v. DeHart, 2012 IL 

App (3d) 090773, ¶ 34 (remanding case to determine whether will contest pending before 

probate court would be successful). Accordingly, we hold that the trial court did not err in 

finding that the remaining counts of Michele’s tort action for intentional interference with 

testamentary expectancy need not proceed as they were duplicative of the remedy sought in 

the recovery citation.

¶ 94 We next determine whether the trial court erred in approving the terms of the distribution 

plan as proposed by the Bank.

¶ 95 On August 19, 2011, three months after the trial court granted the Bank’s recovery 

citation, the Bank filed a petition for instructions seeking guidance from the trial court on 

how the assets of the Feinberg Trusts should be distributed. The petition for instructions 

proposed that the trial court resolve certain issues, including whether the 1997 appointment 

and the second amendment to the Erla Trust were valid, before any trust assets would be 

distributed. In response, the Taylors argued that the 1997 appointment and the second 

amendment were invalid. On January 11, 2012, the trial court denied the petition for 

instructions, finding that the “time for contests regarding the validity of the testamentary 

documents has long since passed.” The trial court found that our supreme court’s 2009 ruling 

was law of the case, and that the 1997 appointment and the second amendment were not the 

subject of contests before the supreme court and “they cannot be the subject of a contest 

now.” See In re Estate of Feinberg, 235 Ill. 2d 256. Thereafter, on May 25, 2012, the Bank 

filed a proposed distribution plan, which set forth the terms for distributing the Feinberg 

Trusts’ assets to the beneficiaries. On August 10, 2012, the trial court approved the Bank’s 
- 28 -

proposed distribution plan and ordered the Bank to distribute the funds from the Feinberg 

Trusts accordingly.

¶ 96 Michele argues that the trial court erred in approving the terms of the distribution plan, on 

the grounds that the 1997 appointment was unenforceable because it exceeded the power of 

appointment bestowed upon Erla by Max in his trust. The 1997 appointment specified that, 

upon Erla’s death, the $250,000 share of each grandchild who was deemed deceased under 

the Max Trust “shall be paid equally to the parents of that grandchild.” (Emphasis added.)

However, the terms of the Max Trust only granted Erla the power to appoint assets from his 

trust to his descendants, which only included Max’s children and grandchildren, but not the 

spouses of his children. Michele argues that, because Marshall (father of Lisa and Aimee) 

and Marion (mother of Michele and Aron, and ex-wife of Michael) were the parents of 

Max’s “deceased” grandchildren under his trust but were not Max’s descendants, the 1997 

appointment exceeded the scope of Erla’s power of appointment and was thus invalid.

¶ 97 As discussed in our ruling on the Taylors’ appeal, the time for challenging the validity of 

the 1997 appointment has long passed. Further, the law-of-the-case doctrine bars Michele’s 

challenge to the validity of the 1997 appointment, where neither Michele nor any other party 

made any assertions during their prior appeal to our supreme court that the 1997 appointment 

was invalid. Rather, our supreme court’s previous ruling in this case explicitly relied upon 

the existence and validity of the 1997 appointment in reaching its decision regarding the 

terms of the Max Trust. See id. at 281. To reconsider the validity of the 1997 appointment at 

this juncture in the litigation after our supreme court had specifically relied upon its validity 

would violate the settled expectations of the parties and undermine consistency in the court’s 

rulings. Thus, we reject Michele’s assertion that the 1997 appointment was unenforceable.

¶ 98 Michele argues in the alternative, and the Taylors agree, that if the 1997 appointment is 

upheld, it must be strictly enforced according to its exact terms. Michele posits that the trial 

court erred in approving the distribution plan because it allowed each of the $250,000 shares 

belonging to the four “deceased” grandchildren (Michele, Aron, Lisa and Aimee) to be 

distributed equally to Michael and Leila, but not to Marshall and Marion, even though they 

were all parents to these “deceased” grandchildren. As discussed in our ruling on the 

Taylors’ appeal, we find that Marshall and Marion were not descendants of Max and thus 

were ineligible to take under the 1997 appointment.7 While the 1997 appointment used the 

plural term “parents” instead of the singular term “parent” in describing who may inherit the 

“deceased” grandchildren’s $250,000 shares, Marshall testified at trial that it was a drafting 

“typo” and that Erla did not have the power under the Max Trust to appoint its assets to 

anyone other than Max’s descendants. See Whittaker v. Stables, 339 Ill. App. 3d 943, 946-47 

(2003) (a court’s main concern in construing a trust is to determine the intent of the creator of 

the instrument when it was executed). Therefore, we reject Michele’s argument on this basis.

 7

The terms of the Max Trust provided that, upon Erla’s death, the assets in the Max Trust would be 

distributed amongst their children and grandchildren. Because Marshall and Marion were only the 

spouses of the adult children of Erla and Max, they were not “descendants” under the Max Trust. 
- 29 -

¶ 99 Nonetheless, Michele further contends that the trial court erred in approving the 

distribution plan, which had deemed her “deceased” under the Max Trust, by arguing that the 

Jewish clause in the Max Trust was unenforceable because it violated Illinois public policy.

Michele posits that, after making the distributions as specified by the 1997 appointment, 

approximately $373,893 remained in the Max Trust which should be distributed to Max’s 

descendants without regard to the Jewish clause in the Max Trust. In support of this 

contention, Michele asserts that this court’s holding in the prior appeal (In re Estate of 

Feinberg, 383 Ill. App. 3d 992), in which we held that the Jewish clause in the Max Trust 

violated public policy, should be considered the “law of the case” because our supreme court 

reversed this court’s holding on other grounds. See In re Estate of Feinberg, 235 Ill. 2d 256.

Thus, Michele argues, the trial court erred in approving the distribution plan because it called 

for the distribution of assets consistent with the terms of the Jewish clause of the Max Trust.

¶ 100 The Taylors counter that the issue regarding the Jewish clause in the Max Trust was 

resolved by our supreme court in the prior appeal, and that Michele’s attempt to relitigate our 

supreme court’s decision must be rejected. The Bank argues that the validity of the Jewish 

clause in the Max Trust remained the law of the case by our supreme court’s decision in the 

prior appeal. Michael adopts the Bank’s position as to the validity of the final distribution 

plan.

¶ 101 We find that our supreme court’s decision in the prior appeal regarding the issue of the 

Jewish clause in the Max Trust is law of the case and it cannot be reexamined on a second 

appeal before this court because there have been no material changes in the facts since the 

prior appeal. See In re Christopher K., 217 Ill. 2d at 365. While Michele argues that our 

supreme court never validated the Jewish clause in the Max Trust, and cites to certain 

language in our supreme court’s opinion to suggest that it had never determined whether the 

Jewish clause was enforceable, we find that our supreme court’s ruling regarding the Jewish 

clause’s impact upon distributions made pursuant to the 1997 appointment also applied to the 

remaining assets in the Max Trust. Moreover, there is no legal authority to support Michele’s 

assertion that an appellate court decision resolving a single interlocutory issue, which has 

been reversed by our supreme court, albeit on more narrow grounds, holds any precedential 

value on remand and on a second appeal. Therefore, we hold that the trial court did not err in 

approving the distribution plan as proposed by the Bank.

¶ 102 We next determine whether the trial court abused its discretion in awarding no more than 

$100,000 in reasonable attorney fees to Michele. See Shoreline Towers Condominium Ass’n 

v. Gassman, 404 Ill. App. 3d 1013, 1024 (2010) (the dollar amount of the attorney fee award 

is reviewed under an abuse of discretion standard).

¶ 103 Michele argues that the trial court improperly awarded only $100,000 to her for 

reasonable attorney fees. She points out that the recovery of assets to the Erla Trust would 

not have been possible without her efforts to investigate the misconduct that ultimately led to 

the Bank’s filing of its recovery citation. She contends that the relief sought in her separate 

lawsuit against the Taylors and Michael pertained to all of the assets that they had 

misappropriated from the Erla Trust, not just the portion of assets that Michele was entitled 

to receive. Michele asserts that she is entitled to additional reasonable attorney fees and that 
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the trial court should have applied either the “percentage of the fund method” or the “lodestar 

method” in calculating her fee award.

¶ 104 The Taylors counter that Michele was not entitled to additional attorney fees, arguing that 

she did not prevail in her separate lawsuit against them at trial, and that Michele did not act 

in the interest of all of the alleged beneficiaries so as to trigger the application of the common 

fund doctrine. They contend that Michele should have joined the Bank’s recovery efforts 

sooner rather than pursuing recovery on her own behalf through her separate lawsuit against 

the Taylors and Michael. The Taylors posit that the trial court’s award of $100,000 in 

attorney fees to Michele, combined with the $540,000 in attorney fees awarded to the Bank 

for its recovery of the misappropriated assets, was reasonable because it represented 

approximately 24% of the recovered funds. They further contend that Michele could have 

assisted the Bank with the recovery efforts without incurring unnecessary legal fees, that she 

failed to prove that the lodestar method governs in calculating attorney fees, and that 

Michele’s own misconduct in prolonging the instant litigation should be considered by the 

court. Michael adopts the Taylors’ position that Michele is not entitled to additional attorney 

fees.

¶ 105 The Bank argues that the trial court acted within its discretion in awarding Michele 

$100,000 in attorney fees, where the record supports the trial court’s finding that the Bank, as 

trustee of the Feinberg Trusts, was well-equipped to litigate its recovery citation and 

Michele’s lawsuit against the Taylors and Michael were largely duplicative of the actions 

taken by the Bank. The Bank asserts that although Michele was helpful in uncovering many 

facts that led to the filing of the Bank’s recovery citation, Michele pursued additional claims, 

such as a claim for punitive damages, which would have benefitted her alone.

¶ 106 On June 14, 2011, Michele filed a petition for attorney fees before the trial court, alleging 

that she incurred a total of $765,737.50 in legal fees and $12,352.15 in costs relating to her 

efforts to recover the assets that the Taylors and Michael had misappropriated from Erla. On 

May 17, 2012, the trial court entered an order awarding Michele $100,000 in attorney fees.

Specifically, the court said:

“From this court’s extensive and years-long experience with both the Max and 

Erla Feinberg estates, it is clear that [Michele] initiated the investigation of the claims 

that ultimately led to a recovery herein. Moreover, her efforts contributed to the 

discovery of facts and evidence that ultimately led [the Bank] to issue citations to 

discover and later to convert its discovery citations to recovery citations which were 

issued by this court on or about May, 2007. The court finds that the actions of 

[Michele’s] attorneys conferred a compensable benefit on the Feinberg estate.

* * *

However, Michele was ultimately not successful in prosecuting her [c]omplaint.

After trial, this court found in favor of the [c]itation [p]etitioner and against [Michele] 

on her claim of tortious interference. This court determined that she failed to succeed 

on her cause of action primarily because it was duplicative of the [Bank’s] [recovery] 

[c]itation and the law in Illinois prohibits recovery in such circumstance. The [Bank] 

was well able and well-equipped to litigate its citations and if the [Bank] needed 
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assistance in prosecuting its citations, then [Michele’s] counsel could have filed an 

additional [a]ppearance on behalf of the [Bank]. That did not occur. Instead,

[Michele] pursued her own cause of litigation for her benefit, a benefit which she 

hoped would result in the award of punitive damages for her alone. Moreover, this 

court ultimately awarded a determinate money judgment against the citation 

respondents.

This court cannot additionally burden the estate with the payment of [Michele’s] 

attorneys’ fees for work that the [Bank] [was] duty-bound to perform in prosecuting 

the citation. And this court cannot additionally burden the estate with payment of 

[Michele’s] fees for pursuing an action that she believed would ultimately benefit her 

alone.

With regards to the compensable benefit that [Michele’s] lawyers conferred on 

this estate, this court has reviewed the fee petition and detailed billing records 

submitted in support. The court finds that [Michele’s] attorneys are entitled to receive 

from the ‘common fund’ those reasonable fees incurred from the date they were 

retained through the date the [Bank’s] [recovery citation] was issued. The court finds 

that the fair and reasonable amount for such fees to be $100,000.00, said amount to be 

paid *** from the amounts recovered pursuant to the [c]itation.”

¶ 107 Based on our review of the record, we find that the trial court acted within its discretion 

in awarding $100,000 to Michele in attorney fees. As discussed, Michele filed a complaint 

for intentional interference with testamentary expectancy against the Taylors and Michael in 

2004. In 2005, the Bank filed a discovery citation against the Taylors and Michael, which 

was later converted into the instant recovery citation in 2007. Rather than joining the Bank’s 

recovery efforts immediately, Michele chose to maintain her separate lawsuit against the 

Taylors and Michael and waited until 2009 before joining as a party to the Bank’s recovery 

citation. Although Michele’s complaint sought the return of the misappropriated funds to the 

Erla Trust, we find that it was largely duplicative of the actions taken by the Bank. As the 

trial court correctly noted, the Bank was “well able and well-equipped to litigate its 

citations,” and Michele’s counsel could have assisted the Bank as needed. We find that the 

trial court’s determination that Michele’s attorneys should only be compensated for fees 

incurred from the date they were retained through the date the Bank’s recovery citation was 

issued, was not an abuse of discretion. We cannot conclude that no reasonable person could 

take the view adopted by the trial court. For these reasons, we reject Michele’s argument that 

she was entitled to additional attorney fees and that the trial court should have calculated her 

attorney fees based on the “percentage of the fund method,” which reflects a percentage of 

the recovered funds, or the “lodestar method,” which reflects the amount of work performed 

by the attorney. As the trial court noted, Erla’s estate should not be additionally burdened by 

the payment of Michele’s attorneys fees for work that the Bank was duty-bound to perform 

in prosecuting the recovery citation. Therefore, we hold that the trial court did not abuse its 

discretion in awarding $100,000 in reasonable attorney fees to Michele.

¶ 108 We now turn to the Bank’s arguments on cross-appeal. On cross-appeal, the Bank’s sole 

argument is that the trial court erred in denying its request for prejudgment interest on the 
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recovered assets that were returned to the Erla Trust. The decision to award prejudgment 

interest is a matter left to the sound discretion of the trial court and will not be reversed 

absent an abuse of discretion. Santa’s Best Craft, L.L.C. v. Zurich American Insurance Co., 

408 Ill. App. 3d 173, 191 (2010). However, questions of fact such as whether a party’s 

conduct was “unreasonable and vexatious” will not be disturbed unless it is contrary to the 

manifest weight of the evidence. Charles Selon & Associates, Inc. v. Estate of Aisenberg, 103 

Ill. App. 3d 797, 801 (1981).

¶ 109 On May 16, 2011, the trial court granted the Bank’s recovery citation but denied its 

request for prejudgment interest on the recovered assets, finding that “[t]his court has 

reviewed the Illinois Interest Act with regards to the requested award of pre-judgment 

interest and finds *** the Act to be inapplicable to the factual circumstances presented here.

The court declines to find that the failure to remit the funds taken from Erla was 

‘unreasonable and vexatious.’ ”

¶ 110 The Bank argues that the trial court erred by not awarding prejudgment interest to the 

Erla Trust, arguing that the trial court improperly failed to consider whether prejudgment 

interest was warranted by equitable considerations and that the court’s application of the 

Illinois Interest Act was erroneous. Michele does not appeal the issue of prejudgment 

interest.

¶ 111 The Taylors counter that the trial court properly denied the Bank’s request for 

prejudgment interest, arguing that the Illinois Interest Act was inapplicable to non-contract 

claims and that the Bank forfeited any right to claim prejudgment interest based on equitable 

considerations. They contend that, forfeiture aside, the record supported the court’s decision 

to deny prejudgment interest. Further, they argue that there was sufficient evidence to 

support the trial court’s findings that they did not act unreasonably or vexatiously under the 

Illinois Interest Act.

¶ 112 Michael argues that the trial court did not abuse its discretion in declining to award 

prejudgment interest, arguing that the Illinois Interest Act was inapplicable and that the Bank 

forfeited any claim to prejudgment interest based on equitable considerations. Michael 

contends that the court’s decision should be viewed in light of the fact that it had imposed 

substantial attorney fees upon him; that its decision was based on equitable considerations; 

and that the trial court, in making its ruling, did not misapply the Illinois Interest Act.

¶ 113 Section 2 of the Illinois Interest Act (the Act) provides in pertinent part that:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for 

all moneys after they become due on any bond, bill, promissory note, or other 

instrument of writing; on money lent or advanced for the use of another; on money 

due on the settlement of account from the day of liquidating accounts between the 

parties and ascertaining the balance; on money received to the use of another and 

retained without the owner’s knowledge; and on money withheld by an unreasonable 

and vexatious delay of payment.” 815 ILCS 205/2 (West 2010).

¶ 114 First, the Bank argues that the trial court erred in failing to consider equitable 

considerations in declining to award prejudgment interest, stating that equity required that the 
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Erla Trust be awarded prejudgment interest for the Taylors’ and Michael’s retention of Erla’s 

money long after her death in 2003. The Bank posits that the Taylors and Michael continued 

to enjoy the benefits of the misappropriated funds after Erla’s death, and that simply 

returning the principal amounts to the Erla Trust did not adequately compensate the Erla 

Trust as a whole. The Taylors and Michael counter that the Bank forfeited review of its 

equity arguments on appeal.

¶ 115 We find that the Bank forfeited review of its equity arguments on appeal. The record 

shows, in the trial court, the Bank’s recovery citation generically sought “prejudgment 

interest” and that the Bank relied exclusively on the Act as the sole basis for its claim for 

prejudgment interest. At trial, the Bank presented the testimony of its expert witness, 

Thullen, who testified that in calculating the amount of prejudgment interest due to the Erla 

Trust, he applied a 5% interest rate–the exact same rate specified by the Act. Further, the 

Bank’s posttrial “proposed findings of fact and conclusions of law” before the trial court 

specifically requested prejudgment interest pursuant to the Act and made no mention of 

equity considerations as grounds for warranting prejudgment interest. Because the Bank 

never presented its claim for prejudgment interest to the trial court on the basis of equity, but 

chose only to prove the claim pursuant to the Act, the trial court had no opportunity to 

address this issue or to give this court the benefit of the trial court’s observations with regard 

to any equitable considerations or arguments. See In re Shauntae P., 2012 IL App (1st) 

112280, ¶ 93 (failure to raise an argument before the trial court results in forfeiture of that 

argument on appeal); Kamelgard v. American College of Surgeons, 385 Ill. App. 3d 675, 681 

(2008) (“[a] primary purpose of the waiver rule is to ensure that the trial court has the 

opportunity to correct the error” (internal quotation marks omitted)); see also Carson Pirie 

Scott & Co. v. State of Illinois Department of Employment Security, 131 Ill. 2d 23, 49 (1989) 

(where plaintiff’s posttrial motion relied solely on the alleged invalidation of an 

administrative rule but failed to seek relief in the trial court on the basis of other alleged rule 

invalidations, any such claim was forfeited for purposes of appeal).

¶ 116 Nonetheless, the Bank argues that its claim for prejudgment interest based on equitable 

considerations was not forfeited for review on appeal, arguing that Michele presented the 

testimony of her expert witness, Stringer, who testified to using treasury rates, rather than the 

Act, to calculate the possible amount of prejudgment interest owed to the Erla Trust. The 

Bank asserts that, once Stringer’s testimony was presented to the trial court and became part 

of the record, the Bank was entitled to rely on it as evidence in support of its claim for 

prejudgment interest based in equity. While we agree with the general proposition that 

“evidence admitted into a case is available for all purposes, and every party is entitled to the 

benefit of all evidence whether produced by him or his adversary,” we find that this in no 

way excused the Bank’s failure to raise equity arguments at trial or in posttrial pleadings so 

as to give the trial court an opportunity to consider those arguments and to preserve the issue 

for review on appeal. Dudanas v. Plate, 44 Ill. App. 3d 901, 909 (1976). We further reject the 

Bank’s assertion that this argument was not forfeited on the basis that Michele’s posttrial 

“proposed findings of fact and conclusions of law” referenced case law that pertained to 

prejudgment interest based on equitable considerations. Michele does not appeal the issue of 
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prejudgment interest and the Bank cannot now adopt Michele’s posttrial pleading arguments 

as its own, where, as discussed, the Bank had ample opportunity to address this argument in 

its own posttrial brief before the trial court but nevertheless failed to do so. Therefore, we 

find that the Bank forfeited review of its equity arguments on appeal. Accordingly, we need 

only determine whether the trial court abused its discretion in denying prejudgment interest 

pursuant to the Act.

¶ 117 Turning our attention to the trial court’s decision in denying prejudgment interest 

pursuant to the Act, the Bank argues that the trial court erred in declining to find that the 

Taylors’ and Michael’s conduct was unreasonable and vexatious. The Bank contends that the 

record supports the finding that their conduct in withholding assets belonging to the Erla 

Trust was unreasonable and vexatious, arguing that how they had treated Erla during her 

lifetime was irrelevant to the proper application of the Act. The Bank posits that, had the 

Taylors and Michael simply returned the assets to the Erla Trust after Erla’s death in 2003, 

instead of putting forth “bogus defenses” in an attempt to retain these assets, 

seven-and-a-half years of litigation could have been avoided. The Bank further argues that 

prejudgment interest was warranted because the misappropriated funds were retained by the 

Taylors and Michael without Erla’s knowledge.

¶ 118 The Taylors counter that the Bank’s claim for prejudgment interest based on the Act fails 

as a matter of law because the Act was inapplicable to non-contract claims. They argue that, 

even if the Act applied in the instant case, sufficient evidence in the record supports the trial 

court’s finding that they did not act willfully and vexatiously. The Taylors contend that the 

Bank failed to prove that they acted maliciously or willfully, and that judgment was entered 

against them only because they failed to overcome the presumption of fraud by clear and 

convincing evidence.

¶ 119 Michael argues, like the Taylors, that the Act does not permit an award of prejudgment 

interest on non-contract claims such as those brought by the Bank in the instant case. Michael 

further contends that the trial court did not misapply the Act and that the court properly 

considered the totality of the circumstances in finding the absence of unreasonable and 

vexatious conduct. Michael further asserts that the mere filing of an appearance before the 

court and conducting a defense in the litigation did not constitute unreasonable and vexatious 

conduct, where legitimate questions existed as to the amounts that were subject to recovery 

pursuant to the Bank’s recovery citation.

¶ 120 We find that the trial court properly denied prejudgment interest pursuant to the Act.

Generally, prejudgment interest is recoverable only when it is contracted by the parties or 

authorized by statute. Continental Casualty Co. v. Commonwealth Edison Co., 286 Ill. App. 

3d 572, 577 (1997). The disputing parties did not enter into an agreement providing for the 

award of prejudgment interest; thus, a potential award of prejudgment interest is only 

available to the Bank pursuant to the Act. Under the Act, the Bank would be entitled to 

interest in the event of an “unreasonable and vexatious delay of payment” by the Taylors and 

Michael. See 815 ILCS 205/2 (West 2010). Whether a party’s conduct is “unreasonable and 

vexatious” is a question of fact and will not be disturbed unless it is contrary to the manifest 

weight of the evidence. Charles Selon & Associates, Inc., 103 Ill. App. 3d at 801. As noted, 
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the trial court declined to find that the Taylors’ and Michael’s failure to remit funds taken 

from Erla was unreasonable and vexatious. We find that the trial court’s finding was 

supported by the manifest weight of the evidence at trial. The Bank asserts that had the 

Taylors and Michael returned the assets to the Erla Trust after Erla’s death in 2003, instead 

of putting forth “bogus defenses” in an attempt to retain these assets, over seven years of 

litigation could have been avoided. Although the Bank points to parts of the record, and the 

Taylors’ and Michael’s inability to rebut the presumption of fraud or undue influence at trial, 

to suggest that their delay in returning the funds was unreasonable and vexatious, we find 

that the evidence equally supports a finding that the delay in payment was a result of 

litigation. See id. at 802 (“[m]erely conducting a defense, where there is an honest dispute as 

to the existence of a legal obligation, does not constitute an unreasonable and vexatious delay 

unless the plaintiff can establish conduct by a litigant which approximates actual fraud”); 

accord Hamilton v. American Gage & Machine Corp., 35 Ill. App. 3d 845, 853 (1976) (“in 

order to collect interest on a theory of unreasonable and vexatious delay, the evidence must 

show that the debtor had thrown obstacles in the way of collection or by some circumvention 

or management of his own had induced the collector to delay taking proceedings to collect 

the debt longer than he would have otherwise done” (internal quotation marks omitted)).

Indeed, following the trial, the trial court ruled in favor of the Taylors and Michael on the 

issues of the Florida condominium and the gifting program funds. The Bank does not identify 

what “bogus defenses” the Taylors and Michael advanced in an attempt to delay the return of 

the funds, nor has it demonstrated any actual fraud to establish their conduct as unreasonable 

and vexatious. Thus, we cannot conclude that an opposite conclusion is clearly evident, or 

that the trial court’s finding that there was no unreasonable and vexatious delay, was 

arbitrary or not based on evidence. See Continental Casualty Co., 286 Ill. App. 3d at 576.

Likewise, we reject the Bank’s assertion that prejudgment interest was warranted under the 

Act because the Taylors and Michael retained funds “without the owner’s knowledge” (815 

ILCS 205/2 (West 2010)), where the record reveals that Erla was aware of, and signed 

documents pertaining to, some of the transactions at issue in this case–including those 

relating to the gifting program, the June 1990 warranty deed for the Florida condominium, 

the second amendment to the Erla Trust, the 1997 appointment related to the Max Trust, the 

1994 POA and the 1997 POA. Therefore, we hold that the trial court’s findings were not 

against the manifest weight of the evidence. Accordingly, the trial court did not abuse its 

discretion in denying the Bank’s request for prejudgment interest on the recovered assets. But 

cf. In re Estate of Burren, 2013 IL App (1st) 120996, ¶¶ 47-48 (finding no abuse of discretion 

by the trial court’s decision to award prejudgment interest to the estate under the 

circumstances of the case).

¶ 121 In summary, we reverse the trial court’s finding that the Taylors misappropriated $18,770 

from the Morgan Stanley account that belonged to Erla, reverse the trial court’s finding that 

Erla’s Florida condominium should not be subjected to recovery, remand the matter solely 

for further proceedings in accordance with the reversals, but affirm all other aspects of the 

court’s May 16, 2011 judgment. We affirm the trial court’s August 10, 2012 order approving 

the Bank’s distribution plan.
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¶ 122 Affirmed in part and reversed in part; cause remanded.