NOTICE 

This order was filed under Supreme 

Court Rule 23 and may not be cited 

as precedent by any party except in 

the limited circumstances allowed 

under Rule 23(e)(1). 

2020 IL App (4th) 190263-U 

NO. 4-19-0263 

IN THE APPELLATE COURT 

OF ILLINOIS 

FOURTH DISTRICT 

FILED 

February 13, 2020 

Carla Bender 

4th District Appellate 

Court, IL 

LOREN FREED, MARILYN WAGNER, CYNTHIA ) 

HICE, JARED WAGNER, LEAH WAGNER, ) 

LINDSAY WAGNER, ROSEMARY FREED, ) 

MICHAEL WILLIAMSON, ANDREW KROMINGA, ) 

JERRY FREED, JODIE MARCANTONI, CLAYTON ) 

FREED, BEN FREED, SARA FREED, DYLAN ) 

FREED, LAND TRUST DATED DECEMBER 27, 1978, ) 

KNOWN AS THE LOREN E. FREED TRUST ) 

NUMBER 1; LAND TRUST DATED MARCH 27, ) 

1980, KNOWN AS THE LOREN E. AND SHIRLEY ) 

FREED LAND TRUST NUMBER TWO; THE LOREN ) 

E. AND SHIRLEY FREED FAMILY RUST DATED ) 

MARCH 27, 1980; LAND TRUST DATED ) 

DECEMBER 21, 1994, KNOWN AS LEF-4 AND ) 

LAND TRUST DATED JUNE 12, 2000, KNOWN AS ) 

LAND TRUST MR.BJD, ) 

Plaintiffs, ) 

v. ) 

BRIAN FREED, FREED ACRES, LLC, BRUCE ) 

FREED, ALLISON KEERAN, AND EVERGREEN FS, ) 

INC., ) 

Defendants ) 

) 

(Ben Freed, Sara Freed, Dylan Freed, and Julie Freed, ) 

Individually and as Executor of the Estate of David ) 

Freed, Plaintiffs and Cross-Plaintiffs-Appellees; Marilyn ) 

Wagner, Cynthia Hice, Jared Wagner, Leah Wagner, ) 

Lindsay Wagner, Rosemary Freed, Michael Williamson, ) 

Andrew Krominga, Jerry Freed, Jodie Marcantoni, and ) 

Clayton Freed, Plaintiffs and Cross-Defendants- ) 

Appellants). ) 

) 

Appeal from the 

Circuit Court of 

McLean County 

No. 14CH257 
 

 

 

 

 

BRIAN FREED, Individually and as Trustee of the 

MCLEAN LAND TRUST LEF-4, FREED LAND 

TRUST NO. 2, and MR.BJD LAND TRUST, 

Plaintiffs, 

v. 

LOREN FREED, Individually and as TRUSTEE OF 

FREED LAND TRUST NO. 1, MARILYN WAGNER, 

CYNTHIA HICE, JARED WAGNER, LEAH 

WAGNER, LINDSAY WAGNER, ROSEMARY 

FREED, MICHAEL WILLIAMSON, ANDREW 

KROMINGA, JERRY FREED, JODIE MARCANTONI, 

CLAYTON FREED, BEN FREED, SARA FREED, 

DYLAN FREED, BRUCE FREED, Individually and as 

EXECUTOR OF THE ESTATE OF SHIRLEY 

DOWNES, ALLISON FREED, and JULIE FREED, 

Individually and as EXECUTOR OF THE ESTATE OF 

DAVID FREED, 

Defendants 

(Ben Freed, Sara Freed, Dylan Freed, and Julie Freed, 

Individually and as Executor of the Estate of David 

Freed, Defendants and Cross-Plaintiffs-Appellees; 

Marilyn Wagner, Cynthia Hice, Jared Wagner, Leah 

Wagner, Lindsay Wagner, Rosemary Freed, Michael 

Williamson, Andrew Krominga, Jerry Freed, Jodie 

Marcantoni, and Clayton Freed, Defendants and CrossDefendants-Appellants). 

) 

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No. 15CH30 

Honorable 

Paul G. Lawrence, 

Judge Presiding. 

JUSTICE DeARMOND delivered the judgment of the court. 

Presiding Justice Steigmann and Justice Holder White concurred in the judgment. 

ORDER

¶ 1 Held: The appellate court affirmed, finding the trial court (1) properly denied 

respondents’ motion to dismiss petition to surcharge attorney fees and (2) did not 

abuse its discretion in awarding attorney fees. 

¶ 2 This case comes to us following a dispute among members of the Freed family 

over farmland owned by Loren Freed and involving the following four trusts: (1) Loren E. and 

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Shirley Freed Trust Number One (“Trust No. 1”), (2) Loren E. and Shirley Freed Family Trust 

(the “Family Trust”), (3) McLean County Land Trust LEF-4 (the “LEF-4 Trust”), and (4) Trust 

Number MR.BJD (the “MRBJD Trust”) (collectively the “Trusts”). 

¶ 3 In July 2018, following several years of trust litigation, defendants in one of the 

underlying consolidated actions (McLean County case No. 15-CH-30), Ben Freed, Sara Freed, 

Dylan Freed, and Julie Freed, individually and as Executor of the Estate of David Freed 

(collectively “petitioners”), filed a petition to surcharge attorney fees. Eleven codefendants 

(Marilyn Wagner, Cynthia Hice, Jared Wagner, Leah Wagner, Lindsay Wagner, Rosemary 

Freed, Michael Williamson, Andrew Krominga, Jerry Freed, Jodie Marcantoni, and Clayton 

Freed) (collectively “respondents”) filed a motion to dismiss the petition. 

¶ 4 Following a hearing in December 2018, the trial court denied respondents’ motion 

to dismiss and granted the petition to surcharge attorney fees. In January 2019, respondents filed 

a motion to reconsider, which the trial court denied. In March 2019, the trial court entered a 

written order awarding $60,000 in fees, to be apportioned equally among the four Freed family 

“branches” comprising the respondents in this case. 

¶ 5 On appeal, respondents argue the trial court (1) erred by denying their motion to 

dismiss the petition to surcharge attorney fees because petitioners were not entitled to fees as a 

matter of law and (2) abused its discretion in awarding fees. For the following reasons, we affirm 

the trial court’s judgment. 

¶ 6 I. BACKGROUND 

¶ 7 Due to the voluminous record in this case, we discuss below only those facts 

relevant to resolve the issues presented on appeal. 

¶ 8 A. Underlying Litigation 

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¶ 9 In December 2014, various members of the Freed family (including petitioners 

and respondents in this appeal) filed a complaint, which was docketed as McLean County case 

No. 14-CH-257, alleging Brian Freed (“Brian”), Freed Acres, LLC, and Bruce Freed had failed 

to pay fair market rent for farmland that the Freed family owned in McLean County. Brian had 

farmed the land at issue pursuant to an oral lease since the previous tenant, his brother David 

Freed, died in 2013. The complaint further sought foreclosure of a crop lien, eviction, and 

damages stemming from the breach of Brian’s fiduciary duty. On February 3, 2015, Brian, 

individually and as Trustee of the LEF-4 Trust and the MRBJD Trust, filed a complaint in a 

separate action, which was docketed as McLean County case No. 15-CH-30, naming petitioners 

and respondents as defendants. The complaint sought, among other things, (1) supervision of the 

administration of the Trusts, (2) an evaluation of the status of each trust under Illinois law, 

(3) the sale of farmland in the Trusts to satisfy liabilities, (4) a partition of any remaining 

farmland, and (5) dissolution of the Trusts. In June 2015, the trial court consolidated the two 

cases. 

¶ 10 On June 3, 2015, Brian filed a motion to determine the status of the Trusts, 

arguing that it was unclear whether the Trusts were traditional trusts under Illinois law or land 

trusts given their ambiguous and contradictory language. 

¶ 11 Over the course of the next 16 months or so, the parties engaged in a lengthy 

discovery process—which this court declines to recount in detail—that eventually devolved into 

various motions to show cause, motions to compel, a petition for injunctive relief and tortious 

damages, and requests for sanctions. During this time, Brian’s rent payments for the farmland 

were held by the circuit clerk’s office and distributions were made to beneficiaries by court 

order. In October 2016, respondents’ previous counsel, Mercer Turner, filed a motion to 

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withdraw his representation of petitioners, and petitioners filed a motion to substitute new 

counsel into the case to represent their separate interests. In November 2016, in response to 

Brian’s motion for rule to show cause and for sanctions, the trial court found that there was 

“clear and obvious abuse of discovery rules by [respondents’] counsel, Mercer Turner, and that 

sanctions are awarded to [Brian] against [respondents’] counsel *** only and denied as to any of 

his clients ***.” The court further ordered that “no motions are allowed to be filed by Mercer 

Turner or his clients (in these consolidated cases) until payment of sanctions are complete and 

until all written discovery has been fully complied with pursuant to further order of this court.” 

¶ 12 In January 2017, Brian filed motions (1) to authorize the employment of a land 

rent expert to determine fair cash rent amounts due and owing from him for the years 2012 to 

2017, an issue which was raised in the complaint in case No. 15-CH-257, and (2) for permission 

to farm the land at issue in 2017. (Since the litigation began in 2014, Brian had also filed motions 

to farm in 2015 and 2016, which the trial court granted.) 

¶ 13 On March 3, 2017, petitioners filed three pleadings in the trial court. The first was 

a petition to direct Brian Freed, as trustee of the LEF-4 Trust, to sell property held by the trust at 

a public sale as required by the terms of the trust agreement. Petitioners also filed a response to 

Brian’s June 3, 2015, motion to determine the status of the trusts. Petitioners argued that Trust 

No. 1, the LEF-4 Trust, and the MRBJD Trust were all unambiguously land trusts. However, 

petitioners argued that the language in the Family Trust was ambiguous and therefore the court 

should hold an evidentiary hearing in order to determine its status. Finally, petitioners filed a 

response to Brian’s motions to farm in 2017. In the response, petitioners requested that a farm 

manager, such as Soy Capital Ag Services (Soy Capital), be appointed to oversee and supervise 

the farming for the 2017 crop year. In support of their request, petitioners stated: 

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“Reports provided by the farm manager would provide transparency and 

accountability; and would go a long way towards reducing the mistrust against the 

interested parties. The financial institutions in Central Illinois that have 

agricultural operations are all capable of fulfilling this role ***. The costs of 

having a farm manager should be split 50/50 by and between the tenant farmer 

(i.e. Brian Freed) and the land trusts.” 

¶ 14 Petitioners then called the matters of (1) their petition to direct the trustee to sell 

property held by the LEF-4 Trust, (2) Brian Freed’s motion to farm in 2017, and (3) Brian 

Freed’s motion to retain a land rent expert for hearing, which was held on April 7, 2017. 

¶ 15 At the hearing, petitioners argued that they had no “fundamental objection” to the 

retention of a land rent expert to determine the fair market rents for crop years 2012 to 2017. 

Petitioners then presented several color-coded maps identifying the actual acreage held by each 

trust and the corresponding percentage interest for each beneficiary. Petitioners further argued 

the trial court should direct Brian Freed to liquidate the assets of the LEF-4 Trust under the terms 

of the trust, which “was supposed to terminate 20 years after the effective date, which would 

have been back in 2014.” Petitioners reiterated their request to hire a farm manager in order to 

provide “independence and transparency,” as it was “clear the family’s in dispute.” 

¶ 16 On April 13, 2017, the trial court entered a written order granting Brian’s motion 

to retain a land rent expert. The court entered an additional written order granting Brian’s motion 

to farm in 2017. 

¶ 17 On July 5, 2017, petitioners filed a petition to modify or terminate the land trusts, 

in which they argued the following: 

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“In the instant case, there were several unforeseen circumstances not 

anticipated by the settlor[, Loren Freed]; including: (a) that the beneficial owners 

would, on a continuing and ongoing basis, be unable to reach unanimous or supermajority consent on issues pertaining to the administration of the Trusts; (b) the 

death of David Freed, who all of the beneficial owners respected and trusted to 

properly administer the Trusts; (c) that Brian Freed would attempt to take control 

of the Trusts over the objection of the other beneficial owners; and (d) that 

distributions of income would not be made, on a regular and consistent basis, to 

the settlor and beneficial owners. Collectively, these unforeseen circumstances 

substantially impair the purposes of the Trusts. In light of the foregoing, the Court 

should use its powers under equitable deviation to either: (a) modify the voting 

requirement threshold for any action pertaining to the Trust (i.e. [,] power of 

direction; replacement of trustee, etc.) to be any combination of beneficial interest 

owners whose combined percentage of beneficial interest ownership totals at least 

51.0% of total ownership; or (b) terminate the Trusts and direct the trustee to deed 

each property out of each Trust in undivided interests to each beneficial owner in 

such percentage interest that matches their beneficial interests in each Trust.” 

¶ 18 On July 12, 2017, the court held a hearing on the matters of (1) Brian’s motion to 

determine the status of the trusts, (2) the petition to direct the trustee to sell the LEF-4 property, 

and (3) the petition to modify or terminate the land trusts. Following the hearing, the trial court 

ordered the sale of the farmland held by the LEF-4 Trust and payment of accounting fees related 

to the Trusts. The court also determined as, a matter of law, that (1) the Family Trust was an 

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irrevocable grantor trust and (2) Trust No. 1, the LEF-4 Trust, and the MRBJD Trust were land 

trusts. 

¶ 19 On September 18, 2017, the trial court entered a written order granting the 

petition to modify the land trusts. Specifically, the court ordered that the land trusts be modified 

to allow the trustee to act upon the written authority of 60% or more of the beneficial interest 

owners rather than only on the owners’ unanimous written authority. 

¶ 20 On November 8, 2017, the trial court entered another written order terminating 

Brian’s tenancy of the farmland held by the Trusts. The order also directed, by agreement of the 

parties, that the beneficial owners of the farmland held by the Trusts enter into a separate farm 

management agreement with Soy Capital for the 2018 crop year. 

¶ 21 On May 23, 2018, Brian filed a motion for voluntary dismissal of his complaint in 

case No. 15-CH-30, stating that he had resigned as trustee of the Trusts. The trial court entered a 

written order on the same date granting the motion to dismiss and finding that Brian’s 

resignation as trustee rendered his counterclaim moot. 

¶ 22 On July 3, 2018, petitioners filed a petition to surcharge attorney fees and costs. 

Petitioners argued that after they substituted their present counsel into the case, they were “able 

to identify ‘serious questions’ concerning the construction and/or administration of the Trusts 

and present those issues to the Court, the resolution of which benefited each beneficiary of the 

Trusts.” They identified those issues as the following: (1) retention of a land rent expert to 

provide an opinion as to the fair market rent for the crop years 2012 to 2017, (2) determination 

and resolution of the status of the Trusts, (3) directing and coordinating the sale of the farmland 

held by the LEF-4 Trust, (4) modification of the voting requirements of the land trusts, 

(5) blocking the termination of the Trusts, (6) appointment of Soy Capital as farm manager for 

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the farmland held by the Trusts for the 2018 crop year, (7) identifying the actual acreage held by 

each trust and the corresponding percentage interest of each beneficiary, and (8) reconciliation of 

rent amounts owed to each beneficiary. Petitioners stated they had incurred $89,678 in attorney 

fees and $6799.58 in costs over the course of the litigation. Citing Rennacker v. Rennacker, 156 

Ill. App. 3d 712, 716, 509 N.E.2d 798, 801 (1987), petitioners stated: 

“Those costs and fees are reasonable and commensurate with the services 

rendered given: (i) the experience of their counsel; (ii) the complexity of the 

issues; (iii) the complexity of litigating the issues across multiple lawsuits; (iv) the 

collective value of the farmland and farm income at issue ***; and (v) the benefits 

received by each beneficiary as to the resolution of the issues presented to the 

court.” 

¶ 23 Respondents filed a motion to dismiss the petition pursuant to section 2-615 of the 

Code of Civil Procedure (“Procedure Code”) (735 ILCS 5/2-615 (West 2018)), arguing 

petitioners were not entitled to attorney fees as a matter of law. Specifically, respondents argued 

that the petition failed to allege (1) an exception to the “American Rule” for attorney fees related 

to the construction of any trust at issue, particularly of the three land trusts, and (2) any patent 

ambiguity in the drafting of any trust. 

¶ 24 Following a hearing on December 5, 2018, the trial court granted the petition to 

surcharge attorney fees and denied respondents’ motion to dismiss but reserved ruling on the 

amount to be surcharged. In granting the petition, the court stated: 

“As [petitioners’ counsel] has stated, according to the Orme case, O-r-m-e, 

the Court does have to determine whether or not a serious question was raised by 

[petitioners’ counsel] and his clients in relation to the administration of these four 

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trusts. And certainly the Court has dealt with a lot of questions and certainly 

serious questions within this litigation. And [petitioners’ counsel] did, in fact, 

move this litigation along when he came into the litigation after it had stalled, so 

to speak, as he has pointed out. And did assist all of the parties in resolving many 

issues related to these trusts including: The appointment of Dr. Schnitzky, 

determining what the trusts were, liquidating LEF4, modifying the voting 

requirements, getting Soy Capital involved, using his spreadsheet at the final 

argument stage when the Court determined the rent. And I think that all of those 

would meet the requirements of serious questions under the Orme decision. 

And while the Court has determined that three of the trusts were land 

trusts, the Court, of course, did determine that one, in fact, was a grantor trust. 

And so I think that this would apply, the Orme case would apply to this particular 

situation. And so I am going to grant the petition.” 

¶ 25 On January 4, 2019, respondents filed a motion to reconsider their motion to 

dismiss the petition to surcharge attorney fees. On January 15, 2019, petitioners’ counsel filed an 

affidavit averring that the fees and costs incurred by petitioners in the underlying litigation 

totaled $120,010.96. 

¶ 26 On February 22, 2019, the trial court held a hearing on the amount to be 

surcharged. On March 26, 2019, the trial court entered a written order denying respondents’ 

motion to reconsider and awarding $60,000 in fees, to be apportioned equally among the four 

Freed family “branches.” The court further ordered that the balance of the attorney fees incurred 

by petitioners as identified in their counsel’s affidavit would be the responsibility of and paid by 

petitioners. Finally, the court stated: 

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“The court specifically acknowledges that the attorney’s fees [sic] have not been 

surcharged directly against the Trusts that were the subject of the above-captioned 

matter; but instead as against the beneficiary branches which approach is 

consistent with the discussion and representations of the parties prior to the entry 

of the June 19, 2018, Order authorizing the disbursement of Trust monies held by 

the Circuit Clerk.” 

¶ 27 This appeal followed. 

¶ 28 II. ANALYSIS 

¶ 29 On appeal, respondents argue the trial court (1) erred by denying their motion to 

dismiss the petition to surcharge attorney fees because petitioners were not entitled to fees as a 

matter of law and (2) abused its discretion in awarding fees. Respondents further argue that 

petitioners forfeited any argument that attorney fees were appropriate under the “common fund” 

doctrine outlined in Rennacker by failing to raise the issue in their petition before the trial court. 

For the following reasons, we affirm the trial court’s judgment. 

¶ 30 A. Motion to Dismiss 

¶ 31 Respondents argue the trial court erred in denying their motion to dismiss the 

petition to surcharge attorney fees because petitioners were not entitled to fees as a matter of law. 

¶ 32 A motion to dismiss under section 2-615 of the Procedure Code (735 ILCS 5/2-

615 (West 2018)) challenges only the legal sufficiency of the complaint. Schloss v. Jumper, 2014 

IL App (4th) 121086, ¶ 20, 11 N.E.3d 57. In ruling on a section 2-615 motion to dismiss, “the 

question is ‘whether the allegations of the complaint, when construed in the light most favorable 

to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted.’ ” 

Green v. Rogers, 234 Ill. 2d 478, 491, 917 N.E.2d 450, 458-59 (2009) (quoting Vitro v. Mihelcic, 

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209 Ill. 2d 76, 81, 806 N.E.2d 632, 634 (2004)). The trial court should not grant the motion to 

dismiss “unless it is clearly apparent that no set of facts can be proved that would entitle the 

plaintiff to relief.” Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 161, 920 N.E.2d 

220, 223 (2009). We review the denial of a section 2-615 motion to dismiss de novo. Excelsior 

Garage Parking, Inc. v. North Dearborn Condominium Ass’n, 2015 IL App (1st) 133781, ¶ 19, 

36 N.E.3d 991. We may affirm the trial court’s judgment on any basis supported by the record. 

Tummelson v. White, 2015 IL App (4th) 150151, ¶ 26, 47 N.E.3d 579. 

¶ 33 1. Applicable Law 

¶ 34 “In will construction cases, the costs of litigation are borne by the estate on the 

theory that the testator expressed his intention so ambiguously as to necessitate construction of 

the instrument in order to resolve adverse claims to the property.” Orme v. Northern Trust Co., 

25 Ill. 2d 151, 165, 183 N.E.2d 505, 513 (1962). The rule applies equally in the construction of a 

testamentary trust. See Northern Trust Co. v. Heuer, 202 Ill App. 3d 1066, 1071, 560 N.E.2d 

961, 964 (1990). Generally, “fees should not be authorized where such construction is 

unnecessary.” Orme, 25 Ill. 2d at 165. “The criterion is whether an honest difference of an 

opinion exists.” Orme, 25 Ill. 2d at 165. The award of attorney fees may be proper where a party 

presents a “serious question” as to the construction of the trust. Orme, 25 Ill. 2d at 165; see also 

Cahill v. Cahill, 402 Ill. 416, 424-28 84 N.E.2d 380, 385-87 (1949) (allowing attorney fees 

where a remainder to “heirs of blood” presented a serious question in construction of a will). 

¶ 35 Under a different theory, known as the “common fund doctrine,” a party may be 

entitled to an award of attorney fees in trust litigation where the party, having a common interest 

in the trust fund, takes proper steps “to save it from destruction and restore it to the purposes of 

the trust.” Rennacker, 156 Ill. App. 3d at 716. In Rennacker, the court found that the award of 

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attorney fees was proper where “[t]he lack of communication between the parties contributed to 

[the beneficiary’s] lack of faith in [the trustee] and her belief that the trust was not being properly 

administered.” Rennacker, 156 Ill. App. 3d at 716. In awarding fees, the trial court may order the 

funds be distributed “out of the fund itself or by proportional contributions from those who 

accept the benefits of the effort.” Rennacker, 156 Ill. App. 3d at 716. “[T]he court must establish 

a sum that is reasonable and commensurate with the services rendered and the amount in 

controversy.” Rennacker, 156 Ill. App. 3d at 716. 

¶ 36 2. Forfeiture 

¶ 37 We must first address respondents’ contention that petitioners forfeited any 

argument they were entitled to attorney fees based on the common fund doctrine and Rennacker. 

Respondents argue that “the underlying petition, [p]etitioners’ oral argument at court, and the 

circuit court’s findings and opinion all relied upon the ‘serious question’ test employed in 

Orme.” Respondents contend that any argument based on Rennacker is forfeited because it was 

not “properly presented to the lower court, and this [c]ourt should not review issues that the 

lower court did not decide.” “[I]ssues, theories, or arguments not raised in the trial court are 

forfeited and may not be raised for the first time on appeal.” In re Estate of Chaney, 2013 IL App 

(3d) 120565, ¶ 8, 1 N.E.3d 1231. 

¶ 38 We find respondents’ forfeiture argument unavailing because petitioners did, in 

fact, argue they were entitled to attorney fees under Rennacker in their initial petition. 

Respondents are correct that the parties focused on the “serious question” test from Orme during 

oral argument, and the trial court relied on Orme in its decision to order attorney fees. However, 

respondents fail to acknowledge that petitioners cited to Rennacker twice in their initial petition. 

As discussed above, petitioners, citing Rennacker, 156 Ill. App. 3d at 716, argued they were 

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entitled to attorney fees based on “the benefits received by each beneficiary as to the resolution 

of the issues presented to the court.” Moreover, even if Rennacker was not the primary basis for 

petitioners’ request for attorney fees, “an appellee may raise any argument in support of the trial 

court’s judgment even if it was not directly ruled upon by the trial court.” City of Chicago v. 

Powell, 315 Ill. App. 3d 1136, 1144, 735 N.E.2d 119, 126 (2000). As the appellees in this case, 

petitioners were permitted to raise any argument in support of the trial court’s judgment. 

¶ 39 3. Denial of Motion to Dismiss 

¶ 40 Respondents argue on appeal that petitioners were not entitled to fees as a matter 

of law because (1) the Orme rule only applies to testamentary trusts, (2) no testamentary trust is 

at issue in this case, and (3) even if the Orme rule applied, there was no honest difference of 

opinion between the parties regarding the proper construction of the trust. 

¶ 41 In their petition to surcharge attorney fees and costs, petitioners argued that fees 

were warranted because of their efforts in restoring the Trusts to their purposes, protecting the 

Trusts’ assets and ensuring their proper distribution, and resolving ambiguities relating the trust 

instruments. Specifically, petitioners argued their efforts led to the resolution of the following 

issues: (1) retention of a land rent expert to provide an opinion as to the fair market rent for the 

crop years 2012 to 2017, (2) determination and resolution of the status of the Trusts, (3) directing 

and coordinating the sale of the farmland held by the LEF-4 Trust, (4) modification of the voting 

requirements of the land trusts, (5) blocking the termination of the Trusts, (6) appointment of 

Soy Capital as farm manager for the farmland held by the Trusts for the 2018 crop year, 

(7) identifying the actual acreage held by each trust and the corresponding percentage interest of 

each beneficiary, and (8) reconciliation of rent amounts owed to each beneficiary. 

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¶ 42 Here, in construing the petition in the light most favorable to the petitioners, the 

allegations in the petition were sufficient to establish a claim for attorney fees based on the 

common fund doctrine outlined in Rennacker. Although the trial court found fees were warranted 

based on the “serious question” test in Orme, we may affirm the trial court’s judgment on any 

basis supported by the record. Tummelson, 2015 IL App (4th) 150151, ¶ 26. Petitioners, having a 

common interest in the Trusts at issue in this case, offered ample support for their claim that they 

took “proper proceedings to save [the Trusts] from destruction and restore[d] [them] to [their] 

purposes ***.” Rennacker, 156 Ill. App. 3d at 716. Accordingly, we need not address 

respondents’ argument that the Orme rule is inapplicable in this case and find the trial court 

properly denied defendants’ motion to dismiss. 

¶ 43 B. Attorney Fees Award 

¶ 44 We next turn to whether the trial court erred in awarding attorney fees. 

Respondents argue the trial court abused its discretion when it ordered (1) the surcharge of fees 

related to other matters not allowed by Orme and (2) the payment of the fees by the beneficiaries 

of the Trusts. 

¶ 45 The need for and the amount of attorney fees rests within the sound discretion of 

the trial court and will not be disturbed on appeal absent an abuse of discretion. Heuer, 202 Ill. 

App. 3d at 1071; Rennacker, 156 Ill. App. 3d at 715-16. Under Rennacker, the court “must 

establish a sum that is reasonable and commensurate with the services rendered and the amount 

in controversy.” Rennacker, 156 Ill. App. 3d at 716. 

¶ 46 Here, the trial court did not abuse its discretion in awarding attorney fees. 

Petitioners presented ample evidence that their efforts restored the Trusts to their proper 

purposes and provided a benefit to the beneficiaries. See id. It was not until petitioners’ counsel 

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was substituted into the case that many of the issues in this case were resolved. Specifically, the 

trial court found: 

“[Petitioners’ counsel] did, in fact, move this litigation along when he came into 

the litigation after it had stalled, so to speak, as he has pointed out. And did assist 

all of the parties in resolving many issues related to these trusts including: The 

appointment of Dr. Schnitzky, determining what the trusts were, liquidating 

LEF4, modifying the voting requirements, getting Soy Capital involved, using his 

spreadsheet at the final argument stage when the Court determined the rent.” 

Petitioners’ work benefitted all of the beneficiaries because their efforts resolved the status of the 

Trusts, simplified their administration (by modifying the voting requirements and liquidating the 

LEF-4 assets), resulted in professional management of the farm (thereby preventing the constant 

intrafamilial disagreements and increasing transparency), reconciled the amounts owed to each 

beneficiary (ending the practice of requiring court intervention for every distribution), and 

accurately identified the parties’ beneficial interests in each of the Trusts. 

¶ 47 Additionally, because we find that attorney fees were proper under Rennacker 

rather than Orme, respondents’ argument that the trial court abused its discretion in awarding 

fees based on petitioners’ failure to identify any written ambiguity in the trust instruments is 

inapplicable here. Under Rennacker, there is no requirement, as respondents argue, that a party 

must present a patent ambiguity in the trust instruments “so fraught as to require construction by 

the court.” Petitioners needed only demonstrate an interest in the common fund and that they 

took proper steps to save the Trusts from destruction or restore them to their proper purposes. 

¶ 48 Furthermore, respondents’ contention that the trial court erred in ordering fees 

where petitioners’ counsel’s affidavit included “fees and costs incurred in different matters, 

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including the probate of the Estate of Shirley Downs and the divorce of Loren and Shirley 

Freed,” is unpersuasive. In awarding fees, the trial court was not required to parse through the 

affidavit, issue by issue, to determine the precise amount to which petitioners were entitled. 

Rather, the court was required to “establish a sum that is reasonable and commensurate with the 

services rendered and the amount in controversy.” Rennacker, 156 Ill. App. 3d at 716. Given that 

this case involved almost 700 acres of farmland, $1.2 million in farm income deposited with the 

circuit clerk’s office, and complex issues litigated across multiple lawsuits over several years, we 

do not find that the trial court’s award of $60,000 was unreasonable or not commensurate with 

the services rendered. 

¶ 49 We also reject respondents’ argument that the trial court erred by allocating the 

fee award pro rata rather than to the trust estate because respondents did not properly raise this 

issue in the trial court and have therefore forfeited any argument challenging it on appeal. First, 

the Rennacker court specifically held that a party in trust litigation may be awarded fees “either 

out of the fund itself or by proportional contributions from those who accept the benefits of the 

effort.” (Emphasis added.) Rennacker, 156 Ill. App. 3d at 716. Petitioners specifically requested 

in their petition that the fees be “appropriated equally amongst each of the five branches of the 

family” (including petitioners). Respondents never objected to this request in their motions to 

dismiss or to reconsider; rather, respondents merely stated in their February 5, 2019, response to 

petitioners’ counsel’s affidavit that “the [p]etition fails to cite any authority supporting its request 

that fees be allocated pro rata to the five branches of the family”—a contention which is belied 

by the record. Moreover, respondents’ counsel was present at the final fee award hearing and 

failed to object during a lengthy discussion regarding the agreement to divide the fees pro rata 

between the family branches. Furthermore, the trial court’s written order clearly states that the 

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attorney fees were to be charged “as against the beneficiary family branches which approach is 

consistent with the discussion and representations of the parties ***.” (Emphasis added.) 

Accordingly, respondents forfeited any argument regarding the pro rata allocation of fees. See 

Chaney, 2013 IL App (3d) 120565, ¶ 8. 

¶ 50 III. CONCLUSION 

¶ 51 For the reasons stated, we affirm the trial court’s judgment. 

¶ 52 Affirmed. 

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