2021 IL App (1st) 200806-U

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1). 

SECOND DIVISION

August 3, 2021 

No. 1-20-0806 

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

MARGARET ZAGEL, not individually but as Trustee of 

the Francis E. Maxwell Living Trust, Dated November 26, 

1991, 

Plaintiff-Appellant, 

 v. 

HASTINGS CUTOFF GROUP, LTD., an Illinois 

corporation, and ANDREW J. MAXWELL, individually 

and as president of Hastings Cutoff Group, Ltd., 

Defendants-Appellees.

)

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

)

Appeal from the

Circuit Court of

Cook County

No. 18-CH-6943 

The Honorable 

Anna M. Loftus, 

Judge Presiding. 

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.

Justices Lavin and Cobbs concurred in the judgment. 

ORDER

¶ 1 Held: Trial court’s dismissal with prejudice of claims asserted by successor trustee for accounting 

and breach of fiduciary duty following death of settlor is affirmed. Successor trustee lacked 

standing to assert claims where trust agreement did not show a manifestation of intent by 

settlor to hold his ownership interest in corporation as a trust asset prior to his death. Trial 

court’s denial of motion to modify protective order is also affirmed.

¶ 2 Following the death of Francis E. Maxwell (Francis) in 2017, the plaintiff, Margaret Zagel, 

in her capacity as successor trustee of the Francis E. Maxwell Living Trust dated November 26, 
No. 1-20-0806 

- 2 - 

1991 (the Trust), brought this action against the defendants, Hastings Cutoff Group, Ltd. 

(Hastings), and Andrew J. Maxwell (Andrew). Hastings is an Illinois corporation of which Francis 

had owned a 25% share during his lifetime. The plaintiff and Andrew are two of Francis’ four 

children, and Andrew is the president of Hastings. In her first amended complaint, the plaintiff 

seeks an order directing the defendants to open Hastings’ corporate books and records and provide 

a corporate accounting to the Trust. The plaintiff also asserts several claims alleging that Andrew 

breached certain fiduciary duties allegedly owed to the Trust between 2012 and 2017. During 

discovery, the trial court ordered the parties to brief the issue of whether Francis’ 25% ownership 

share of Hastings was an asset held in the Trust as of 2012 and after, such that the Trust had an

interest in Hastings that gave the plaintiff standing to assert the present claims on the Trust’s 

behalf. Following this briefing, the trial court made a summary determination that the plaintiff 

lacked standing to assert these claims on behalf of the Trust because Francis’ 25% ownership share 

in Hastings had not been made an asset of the Trust prior to his death. As a result of this summary 

determination, the trial court entered an order dismissing all counts of the first amended complaint 

with prejudice. The plaintiff appeals this order, along with the trial court’s denial of a motion to 

modify a protective order. For the reasons that follow, we affirm the judgment of the trial court. 

¶ 3 I. BACKGROUND

¶ 4 Francis was an attorney who practiced in Nashville, Illinois, including in the area of estate 

planning. He served as judge of the Twentieth Judicial Circuit of Illinois from 1966 to 1986. He 

was married to Joan Maxwell (Joan), and they had four children. In retirement, Francis and Joan 

relocated to Florida. 

¶ 5 In 1978, Francis and Joan entered into an agreement with their son Andrew to invest in an 

apartment building located at 2226 N. Fremont Street in Chicago (Fremont property). At that time, 
No. 1-20-0806 

- 3 - 

the Fremont property was owned by the three of them individually, and their verbal agreement was 

that Andrew owned 50% of it while Francis and Joan owned 25% each. 

¶ 6 In 1991, Francis established the Trust, which was a self-settled, revocable trust of which

Francis was trustee during his lifetime. The trust agreement provided that all property transferred 

to the trustee, together with any property received by the trustee under the terms of Francis’ last 

will and testament or otherwise shall be held and disposed of by the trustee upon the terms and 

conditions set forth therein. The trust agreement itself did not identify any specific property as 

being placed into or held in the Trust as of that time. Relevant to this appeal is article III of the 

trust agreement, which stated in pertinent part as follows: 

“Upon and after the death of the Grantor, the Trustee shall receive, hold, administer, 

and distribute the trust estate as follows:

A. Probate Assets. The Trustee shall receive distribution of assets under the terms of 

the Grantor’s Last Will and Testament and shall add the same to the trust estate. 

* * *

C. Dispositive Plan. The Trustee shall ascertain the Grantor’s trust and probate estate 

before the payment of any estate, inheritance, succession or similar death taxes, state or 

federal. In the event the Grantor is survived by his wife, JOAN B. MAXWELL, the Trustee 

shall divide all of the rest, residue and remainder of the Grantor’s trust estate, including 

assets, if any, which have been distributed to the trust estate from the Grantor’s probate 

estate, into two shares identified as the Marital Deduction Trust Share and the Residuary 

Trust Share, and shall administer each of such shares as a separate trust as follows:

1. Marital Deduction Trust Share. * * *

* * *
No. 1-20-0806 

- 4 - 

2. Residuary Trust Share. The balance of the trust estate, after payment of 

debts, taxes and other obligations and the creation of the Marital Deduction Trust 

Share should the Grantor’s wife survive the Grantor, or the entire balance of the 

trust estate should the Grantor’s wife predecease the Grantor, shall be set aside as 

a separate trust to be known as the Residuary Trust Share and shall be held and 

administered by the Trustee on the following terms and conditions: 

a. Distribution of Income and Principal. During the lifetime of the 

Grantor’s spouse, the Trustee shall pay to or for the use and benefit of the 

Grantor’s spouse all the net income from the Residuary Trust Share ***. In 

addition, the Trustee is authorized to pay to or for the use and benefit of the 

Grantor’s spouse such amounts from the principal of the Residuary Trust 

Share as in the Trustee’s sole discretion shall be necessary for the health, 

maintenance and support of the Grantor’s spouse ***; provided, however, 

the Trustee shall make no principal invasions of the Residuary Trust Share 

until the principal of the Marital Deduction Trust Share shall be completely 

exhausted.” 

Article III.C.2 went on in subparagraphs (b) and (c) to address the distribution of assets remaining 

in the Residuary Trust Share upon Joan’s death, whether that occurred before or after the death of 

Francis. 

¶ 7 In 2003, Hastings was incorporated, and title to the Fremont property was placed in a land 

trust of which Hastings was the beneficial owner. The parties’ respective ownership interests

continued according to a verbal agreement, with Andrew owning a 50% share of Hastings and 

Francis and Joan each owning a 25% share. Andrew served as the president of Hastings, and 
No. 1-20-0806 

- 5 - 

Francis was also an officer. It is undisputed that as of the time of Hastings’ incorporation, Francis’ 

ownership share of Hastings was not an asset held in the Trust. 

¶ 8 Over time, the value of the Fremont property increased substantially. The record indicates 

that, as Francis and Joan began to contemplate their estate planning, they wanted Andrew to buy 

out their interests in the Fremont property or to sell the Fremont property, so that their ownership 

interests could be equitably distributed among their children after they died. On September 30, 

2008, Francis executed a first amendment to the trust agreement, which added several provisions 

to article III.C.2 giving the successor trustee directions about how to account for Francis’ 

ownership interest in the Fremont property when determining and distributing the Residuary Trust 

Share. That same day, Francis also executed his last will and testament, which was a pour-over 

will providing that the residue of his estate was given to the trustee of the Trust to be administered 

as part of the principal of the Trust. It is undisputed that the Francis’ ownership share in Hastings 

was not made an asset of the Trust as of 2008. 

¶ 9 In 2012, the Fremont property was sold, and Andrew, on behalf of Hastings, reinvested the 

profits of that sale by purchasing other real estate. On December 7, 2012, Francis executed a 

second amendment to the trust agreement. That second amendment revoked and deleted the first 

amendment to the trust agreement in its entirety and reinstated the original terms of the trust 

agreement. The second amendment to the trust agreement provided in pertinent part as follows: 

“Subparagraph a. of paragraph C.2 of ARTICLE III, of the original Trust, is hereby 

deleted and replaced in its entirety with the following: 

‘a. Distribution of Income and Principal. Grantor directs that the following 

calculations, considerations and distributions of principal be made as soon as 

practicable after the establishment of the Residuary Trust Share: 
No. 1-20-0806 

- 6 - 

i) This sub-Trust has a twenty-five (25%) percent ownership in an 

Illinois corporation, known as, Hastings Cutoff Group, Ltd. (the 

“Company”) that currently owns interests in various commercial properties 

in the Chicago area. Grantor’s son, ANDREW J. MAXWELL, currently 

owns a fifty (50%) percent interest in the Company and Grantor’s spouse’s 

Trust owns the remaining twenty-five (25%) interest. 

ii) The shareholders of the Company have determined and stipulated 

to a fair value for this Trust’s ownership share of the Company, and while 

the Trustees of Grantor’s and Spouse’s respective Trusts are entitled, by 

their agreements with Andrew, to receive income on the Trusts’ 

investments, the value of the principal invested is stipulated to remain static, 

neither appreciating nor depreciating with the market, sales or otherwise. 

iii) In computing the respective shares of the Grantor’s four (4) 

children, the successor Trustee is instructed to treat the static principal value 

of this Trust’s ownership interest in the Company as $337,000.00, less any 

actual distributions of principal (and not income) from the Company to the 

Trustee hereof, subsequent to this Amendment. 

iv) The successor Trustee is directed, following the death of the 

Grantor and as soon as practicable after the administration of this Trust, to 

convey outright and free of trust or encumbrance, this Trust’s shares of the 

Company to Grantor’s son, ANDREW J. MAXWELL, per stirpes. 

v) The successor Trustee is directed, following the death of the 

Grantor, and as soon as practicable after the administration of this Trust, to 
No. 1-20-0806 

- 7 - 

distribute from the principal of this Residuary Trust Share, an amount, cash 

or in kind, equal to the value of the Trust’s interest in the Company (as 

calculated above) to each of the then living of Grantor’s three (3) other 

children, to-wit: REBECCA MAXWELL, MARGARET ZAGEL, and 

KATHRYN MAXWELL. 

vi) The rest and residue of this Residuary Trust Share, after 

distribution of the foregoing shares of the Company to Andrew and an equal 

value of principal to each of Grantor’s three (3) daughters (per stirpes), is 

to be held for the Grantor’s spouse’s benefit, if she survives Grantor. *** ’ ” 

The remainder of subparagraph (vi) then continued with language tracking that set forth above as 

article III.C.2.a of the original trust agreement. See supra ¶ 6. 

¶ 10 Francis passed away in Florida on March 21, 2017. Following his death, the plaintiff became 

successor trustee of the Trust. On June 17, 2017, the plaintiff served on Andrew and the other 

beneficiaries an inventory of the Trust’s assets as of the date of Francis’ death. That inventory 

listed the Trust’s assets as five bank or investment accounts titled in the Trust’s name, as well as a

“1/4 Interest Hastings Cutoff” valued at $286,747. In several email communications by Andrew 

to the plaintiff around this time, Andrew made statements suggesting that he also believed that 

Francis’ shares of Hastings had been placed into the Trust as of the time of Francis’ death. In 

March 2018, Andrew sent to the plaintiff a schedule K-1 for tax year 2017 listing the Trust as a 

25% shareholder of Hastings. 

¶ 11 Upon becoming successor trustee, the plaintiff made multiple requests to Andrew for 

information concerning Hastings, its assets and finances, the value of the Trust’s interest in it, 

income or distributions that it owed to the Trust, and the like. Believing that Andrew was not 
No. 1-20-0806 

- 8 - 

providing adequate information in this regard, the plaintiff filed the present action against Andrew 

and Hastings on May 31, 2018, seeking an order that Hastings open its corporate books and 

financial statements and provide a corporate accounting to the plaintiff on behalf of the Trust. The 

original complaint also included one count alleging that Andrew breached fiduciary duties to the 

Trust by classifying it as a resident of Illinois instead of Florida in the schedule K-1 for tax year 

2017, the effect of which was that Hastings avoided making a pass-through entity withholding 

payment to the Illinois Department of Revenue. On September 27, 2018, the plaintiff filed the 

operative first amended complaint, which added four additional counts against Andrew. Three of 

those counts alleged that he breached his fiduciary duty to the Trust by (1) making inadequate 

distributions from Hastings to Francis between 2012 and 2017 and to the Trust in 2017, (2) using 

Hastings’ funds for his own benefit and for the benefit of entities he controlled over the interests 

of the other shareholders, (3) depositing funds that belonged to Hastings into accounts titled in his 

name or in the name of other entities he controlled, and (4) causing Hastings to enter into loans or 

contracts that did not reflect the terms of arms-length transactions between 2012 and 2017. The 

final count was a shareholder oppression claim concerning the same allegations of misconduct that 

formed the bases of the breach of fiduciary duty counts. 

¶ 12 Initially, the trial court denied a motion by the defendants to dismiss the plaintiff’s claims, 

which contended that the Trust lacked standing to assert them. Discovery progressed, and on 

September 19, 2019, the trial court entered a protective order setting forth how the parties could 

use the material obtained through discovery in this case and requiring the destruction of certain 

material at the conclusion of this case. Also on September 19, 2019, the trial court ordered the 

parties to file briefs addressing the issue of the Trust’s ownership of Hastings stock at all times 

relevant to claims being asserted. 
No. 1-20-0806 

- 9 - 

¶ 13 On October 10, 2019, the plaintiff filed a motion arguing, in general, that Francis expressed 

his intent to fund the Trust with his ownership share of Hastings when, on December 7, 2012, he 

amended article III.C.2.a of the trust agreement to state, “This sub-Trust has a twenty-five (25%) 

percent ownership in an Illinois corporation, known as, Hastings Cutoff Group, Ltd.” The 

plaintiff’s motion thus sought a declaration that the Trust owned Francis’ ownership share of 

Hastings at least as of December 7, 2012. The defendants filed a response and a cross-motion for 

summary determination under section 2-1005(d) of the Code of Civil Procedure (Code) (735 ILCS 

5/2-1005(d) (West 2018)) that Francis’ shares of Hastings had never been transferred into the Trust 

during his lifetime and that, because the shares had not yet been transferred to the Trust through a 

probate proceeding, the Trust lacked an ownership interest in Hastings that could confer standing 

on the plaintiff to assert the present claims on its behalf. Generally speaking, they argued that the 

statement relied upon by the plaintiff did not show a present intent by Francis to transfer the shares 

to the Trust, because it was added to a subparagraph directing the successor trustee how to receive, 

hold, administer, and distribute the estate “[u]pon and after the death of the Grantor” and “after 

the establishment of the Residuary Trust Share.” They also argued that the statement was that 

“[t]his sub-Trust” had the shares, which was a reference to the Residuary Trust Share that only 

came into existence as a separate trust after Francis’ death. Thus, they argued that the shares were 

property of Francis’ probate estate and had to pass through probate before becoming trust assets. 

¶ 14 Following extensive briefing and oral argument, the trial court issued a written order granting 

the defendants’ motion for summary determination and denying the plaintiff’s motion, which the 

court treated as a motion for summary judgment. The trial court reasoned that the language of the 

trust agreement and the second amendment accounts for the Hastings stock as part of the Residuary 

Trust Share, as the reference to a “sub-Trust” is an unambiguous reference to the Residuary Trust 
No. 1-20-0806 

- 10 - 

Share. The trial court found no language in the trust agreement or the second amendment 

evidencing that the shares had been transferred to the Trust in 2012. It determined that, although 

there was ambiguous language in other parts of the documents, that ambiguous language did not 

concern how or whether the shares became part of the Trust in 2012. The court found that, as all 

of the counts of the first amended complaint were premised upon the Trust having a present 

ownership in the shares of Hastings, its summary determination that the Trust did not own those 

shares meant that the Trust lacked standing to prosecute the claims that had been asserted. The 

trial court therefore dismissed all counts of the plaintiff’s first amended complaint with prejudice. 

However, it reiterated that its ruling only rejected claims premised upon the Trust’s present 

ownership of Hastings’ shares since 2012, and that if the Trust later came into possession of an 

ownership share of Hastings, such as through administration of the probate estate, then the Trust 

could pursue whatever claims were appropriate at that point. 

¶ 15 While the motions discussed above were pending, the plaintiff also filed a motion to modify 

the protective order. The trial court denied this motion in the same written order in which it granted 

the motion for summary determination and dismissed the complaint. The details of this motion and 

the trial court’s reasons for denying it are discussed in the analysis below. This appeal followed. 

¶ 16 II. ANALYSIS

¶ 17 A. Trust’s ownership of the Hastings interest during Francis’ lifetime

¶ 18 This case comes before us following the trial court’s dismissal of this case with prejudice, 

based upon its summary determination that the Trust did not come into possession of Francis’ 

ownership share of Hastings in 2012 and that therefore the Trust lacked standing to pursue the 

claims being asserted. As the trial court’s order disposed of the entire case based on the conclusion 

that that there was no genuine issue of material fact and the defendants were entitled to judgment 
No. 1-20-0806 

- 11 - 

as a matter of law, we consider it a summary judgment for purposes of our jurisdiction.1 Summary 

judgment is appropriately granted if the pleadings, depositions, and admissions on file, together 

with the affidavits, if any, show that there is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018). 

¶ 19 The doctrine of standing is a component of justiciability, requiring that a party have a real 

interest in the action brought and in its outcome. Tufo v. Tufo, 2021 IL App (1st) 192521, ¶ 55. 

The essence of the inquiry regarding standing is whether the litigant, either in an individual or a 

representative capacity, is entitled to have the court decide the merits of a dispute or a particular 

issue. Id. The issue of standing is a matter of law, subject to de novo review. Id. ¶ 50. 

¶ 20 On appeal, the plaintiff argues that the trial court erred by concluding that the trust agreement 

did not demonstrate that Francis’ intent was that his ownership share of Hastings was an asset of 

the Trust as of at least 2012. The plaintiff argues that, when the entirety of the trust agreement and 

its amendments are read together and considered in light of Francis’ overall dispositional plan, the 

only unambiguous interpretation of the trust agreement is that Francis funded the Trust with his 

1 A summary determination of a major issue under section 2-1005(d) of the Code (735 ILCS 5/2-

1005(d) (West 2018)) is by its nature an interlocutory order that contemplates further proceedings in a case 

and is therefore not considered a final and appealable order. Morningside North Apartments I, LLC v. 1000 

N. LaSalle, LLC, 2017 IL App (1st) 162274, ¶ 8. However, the order entered in this case can be considered 

a summary judgment in favor of the defendants under section 2-1005(b) of the Code (735 ILCS 5/2-1005(b) 

(West 2018)), because granting the relief that the defendants sought warranted judgment in their favor as a 

matter of law. The trial court expressly noted in its written order that, regardless of the defendants’ 

designation of their motion as one seeking a summary determination of a major issue under section 2-

1005(d) instead of a motion for summary judgment under section 2-1005(b), the location of the Hastings 

shares prior to Francis’ death was a threshold issue in the case, and trust interpretation involved a question 

of law that was properly addressed in a dispositive motion. The trial court further stated that it was applying 

the same summary judgment standard regardless of the designation of the motion. Given the trial court’s 

statements, as well as our precedent for looking beyond labels to the relief granted and considering a 

summary determination of a major issue that resulted in a disposition of the entire case to be a summary 

judgment (see Morningside North Apartments I, 2017 IL App (1st) 162274, ¶ 8), we conclude that this case 

involves a final order over which we have jurisdiction under Illinois Supreme Court Rule 301 (eff. Feb. 1, 

1994) and Rule 303 (eff. July 1, 2017). 
No. 1-20-0806 

- 12 - 

ownership interest in Hastings no later than December 7, 2012, the date when he executed the 

second amendment to the trust agreement. According to the plaintiff, any other reading inserts 

ambiguity into the trust agreement and renders other provisions of it meaningless. 

¶ 21 The parties agree that this is an issue controlled by the trust documents. They also agree that 

the interpretation of the trust documents is governed by Florida law, as expressly required by the 

terms of Francis’ trust agreement. Florida law provides that “ ‘[o]ne of the basic tenets for the 

construction of trusts is to ascertain the intent of the settlor and to give effect to his intent.’ ” 

Barrett v. Kapoor, 278 So. 3d 876, 879 (Fla. Dist. Ct. App. 2019) (quoting Bacardi v. White, 463 

So. 2d 218, 221 (Fla. 1985) (citing West Coast Hospital Ass’n v. Florida National Bank, 100 So. 

2d 807, 810 (Fla. 1958))). A court is to ascertain a settlor’s intent from the four corners of the trust 

instrument, through a consideration of all of its provisions taken together. Minassian v. Rachins, 

152 So. 3d 719, 725 (Fla. Dist. Ct. App. 2014). A court ascertains intent by looking to “ ‘the plain 

and ordinary meaning of the terms set forth in the [t]rust instrument.’ ” Horgan v. Cosden, 249 So. 

3d 683, 686 (Fla. Dist. Ct. App. 2018) (quoting Nelson v. Nelson, 206 So. 3d 818, 819 (Fla. Dist. 

Ct. App. 2016)). The court should not resort to isolated words or phrases, but instead it should 

interpret the instrument as a whole, taking into account the settlor’s general dispositional scheme. 

Provost v. Justin, 19 So. 3d 333, 334 (Fla. Dist. Ct. App. 2009). If the language used in the trust 

instrument is unambiguous, the settlor’s intent as expressed therein controls, and the court cannot 

rely on extrinsic evidence. Vigliani v. Bank of America, N.A., 189 So. 3d 214, 219 (Fla. Dist. Ct. 

App. 2016). However, the fact that both sides ascribe different meanings to the language used does 

not mean that it is ambiguous, so as to allow the admission of extrinsic evidence. Minassian, 152 

So. 3d at 725. The proper interpretation of a trust instrument is a question of law. Schlossberg v. 

Estate of Kaporovsky, 303 So. 3d 982, 985 (Fla. Dist. Ct. App. 2020).
No. 1-20-0806 

- 13 - 

¶ 22 As stated, the issue before this court is whether the trust documents demonstrate an intent by 

Francis to hold his ownership interest in Hastings as an asset of the Trust as of 2012, as opposed 

to holding it in his individual capacity such that it had to be administered as part of his probate 

estate before it could become an asset of the Trust. Florida follows the usual rule that an owner of 

property can, by a declaration of trust, make himself trustee of that property for another. Brevard 

County v. Ramsey, 658 So. 2d 1190, 1194 (Fla. Dist. Ct. App. 1995) (citing William F. Fratcher, 

Scott on Trusts § 17.1, at 226-228 (4th ed. 1988)); see also Restatement (Second) of Trusts § 17(a) 

(1959). No formal transfer of the property is necessary, since the purpose is that the settlor himself 

shall continue to hold the property, no longer for his own benefit, but for the benefit of another. 

Brevard County, 658 So. 2d at 1194 (citing Fratcher, Scott on Trusts § 17.1 at 226-228). Nothing 

more than the manifestation of the intention to create such a trust is necessary, except in situations 

(not present here) where the subject matter of the trust is an interest in land or the disposition is in 

substance a testamentary disposition. Id. Where the owner of property wishes to make himself 

trustee of that property for another, the simplest method of doing so is to execute an instrument 

declaring that he holds the property in trust. Id. No particular words are necessary, as any statement 

showing that ownership or control of property is vested in one person for the benefit of another is 

sufficient to impose a trust. Beaubien v. Cambridge Consolidated, Ltd., 652 So. 2d 936, 939 (Fla. 

Dist. Ct. App. 1995); see also Provident Group-Continuum Properties, L.L.C. v. Crapo, 157 So. 

3d 409, 411 (Fla. Dist. Ct. App. 2015). 

¶ 23 Relying on the principles set forth above, the plaintiff argues that the language used 

throughout the trust agreement and Francis’ general dispositional scheme support a finding that 

Francis intended to hold his ownership share of Hastings in the Trust at least as of the time he 

executed the second amendment in 2012. First, the plaintiff points out that Francis used the 
No. 1-20-0806 

- 14 - 

present-tense word “has” in the first sentence of subparagraph III.C.2.a.i, which states, “This subTrust has a twenty-five (25%) percent ownership in [Hastings].” She asserts that Francis’ use of 

the word “has” shows that he intended the Trust to have current ownership of his Hastings interest 

as of that time, and no further documentation transferring the Hastings stock to the Trust was 

required. See Brevard County, 658 So. 2d at 1194. She contends that this interpretation (that 

Francis intended the Trust to have current ownership of his Hastings interest) is supported by the 

next sentence in the same subparagraph, which states that Andrew “currently owns” a 50% interest 

in Hastings and that “Grantor’s spouse’s Trust owns” the remaining 25% interest. She argues that 

this shows Francis was making a statement about current ownership of the Hastings shares and 

that it would be “illogical or unusual estate planning” for Francis to state that his wife’s trust owned 

an interest in Hastings if he did not also intend his interest to be held in the Trust.2

 

¶ 24 Continuing her argument, the plaintiff points out that in the subparagraphs that follow, 

Francis made several additional statements in the present tense referring to the Trust having an 

interest in Hastings and that these collectively show that Francis intended the Trust to own his 

Hastings interest during his lifetime. Specifically, in subparagraph (ii), he stated that the 

shareholders of Hastings had determined and stipulated to a fair value for “this Trust’s ownership 

share” of Hastings. He referred in that same subparagraph to the fact that “the Trustees of Grantor’s 

and Spouse’s respective Trusts are entitled, by their agreements with Andrew, to receive income 

2 The defendants contend that the plaintiff forfeited the argument that the court should look to 

Francis’ “dispositional scheme” or to his “unified estate plan” with Joan by failing to present these 

arguments to the trial court. We reject this argument, as our review of the record indicates that this overall

argument was properly made to the trial court. However, it does not appear that any of Joan’s actual estateplanning documents were before the trial court at the time it granted summary judgment. Instead, they were 

attached to the plaintiff’s later-filed motion to modify the protective order. The trial court stated in its 

summary judgment ruling that it had not reviewed Joan’s estate documents. As our review is limited to 

documents properly before the trial court at the time it ruled on the motion for summary judgment, we do 

not consider the contents of Joan’s estate-planning documents in our review. Urban Sites of Chicago, LLC 

v. Crown Castle USA, 2012 IL App (1st) 111880, ¶ 42. 
No. 1-20-0806 

- 15 - 

on the Trust’s investments.” In subparagraph (iii), Francis directed the successor trustee to treat 

the static principal value of “this Trust’s ownership interest” in Hastings as $337,000. And in 

subparagraph (iv), he directed the successor trustee to convey “this Trust’s share” of Hastings to 

Andrew following his death. The plaintiff also contends that Francis used the future tense in other 

places where he was giving directions to the successor trustee about what should occur after his 

death, and that Francis drew a distinction in these subparagraphs by using the word “Grantor” to 

refer to himself individually and “Trustee” to refer to himself in his capacity as trustee of the Trust. 

¶ 25 For their part, the defendants argue that the trust documents, when read as a whole, do not

contain a manifestation of intent by Francis to place his ownership share of Hastings into the Trust 

as of the time he executed the second amendment in 2012. They cite Francis’ placement of the 

provisions at issue into article III of his trust agreement, other provisions of that article involving 

the establishment of the Residuary Trust Share as a separate trust after his death, and his use of the 

term “sub-Trust” as having ownership of the interest in Hastings. 

¶ 26 More specifically, the defendants point out when Francis amended the trust agreement 

through the second amendment, he chose to add the provisions at issue to article III, an article that 

deals exclusively with how the successor trustee is to receive, hold, administer, and distribute the 

trust estate after Francis’ death.3 Thus, all of the provisions relied upon by the plaintiff are 

subordinate to Francis’ direction in the opening sentence of article III that, “[u]pon and after the 

death of the Grantor, the Trustee shall receive, hold, administer, and distribute the trust estate as 

follows.” (Emphasis added). The provisions are also preceded by paragraph III.A, which expressly 

3 Article III of the trust agreement bears the heading “PROVISIONS UPON DEATH OF 

GRANTOR.” However, article VI of the trust agreement provides that headings are included solely for 

convenience and shall not be used to interpret nor expand, limit, or modify the terms of the trust agreement. 

As such, we attach no significance to this heading when interpreting the trust agreement. 
No. 1-20-0806 

- 16 - 

contemplates that assets will pass through probate under the terms of Francis’ last will and 

testament and be added to the trust estate. Next, paragraph III.C directs that if Joan survives

Francis, then the successor trustee is to “divide all of the rest, residue and remainder of the 

Grantor’s trust estate, including assets, if any, which have been distributed to such trust estate from 

the Grantor’s probate estate, into two shares identified as the Marital Deduction Trust and the 

Residuary Trust Share, and shall administer each of such shares as a separate trust.” Paragraph

III.C.2 then directs that either the balance of the trust estate after the creation of the Marital 

Deduction Trust Share, or the entire balance if Joan predeceases Francis, “shall be set aside as a 

separate trust to be known as the Residuary Trust Share to be held and administered by the 

Trustee” upon the terms and conditions set forth. (Emphasis added). Then, in paragraph III.C.2.a, 

which was added by the second amendment, Francis directed “that the following calculations, 

considerations and distributions of principal be made as soon as practicable after the establishment 

of the Residuary Trust Share.” (Emphasis added). That sentence is then immediately followed by 

subparagraph III.C.2.a.i, which states, “This sub-Trust has a twenty-five (25%) percent ownership 

in [Hastings].” (Emphasis added). 

¶ 27 Thus, the defendants argue, when all of the above provisions are considered as a whole, the 

trust agreement provides that “[u]pon and after the death” of Francis, a “separate trust known as 

the Residuary Trust Share” is to be established, and “after the establishment of the Residuary Trust 

Share,” “[t]his sub-Trust” (i.e., the Residuary Trust Share) receives the Hastings shares, along with 

any other probate assets not placed into the Marital Deduction Trust Share. The defendants argue 

that the trial court correctly interpreted the trust agreement by finding that “[t]he ‘sub-Trust’ 

language is an unambiguous reference to the Residuary Trust Share” and that there is no language 

evidencing an intent to transfer the Hastings shares into the Trust itself in 2012.
No. 1-20-0806 

- 17 - 

¶ 28 In response to the defendants’ argument, the plaintiff asserts that that it violates the

fundamental principle of trust interpretation that the trust agreement must be read as a whole. The 

plaintiff points out that, while Francis used the term “sub-Trust” as having ownership of the 

Hastings interest in subparagraph (i), he used the different term “Trust” as having ownership of it 

in subparagraphs (ii), (iii), (iv), and (v). Also, in subparagraphs (v) and (vi), he refers specifically 

to the “Residuary Trust Share.” Thus, the plaintiff argues that, if “sub-Trust” is interpreted to mean 

the Residuary Trust Share only and not the Trust as a whole, such that Francis’ use of “sub-Trust” 

is interpreted as meaning that he was not presently intending the Trust as a whole to have his 

Hastings shares (because the Residuary Trust Share was not established until after his death), then

such an interpretation would strip any meaning from the fact that Francis used these three different 

terms. The plaintiff argues that it introduces ambiguities into the trust agreement if the terms “subTrust,” “Trust,” and “Residuary Trust Share” are all construed to refer to the Residuary Trust 

Share. The plaintiff argues that the only way to give meaning to all three of these terms is by 

concluding that Francis was expressing an intent to own the Hastings interest through the Trust at 

least as of the date of the second amendment. 

¶ 29 After carefully considering the parties’ arguments and the trust documents themselves, we 

hold that the trial court correctly determined that the trust agreement, as amended, does not 

demonstrate a manifestation of intent by Francis to hold his ownership share of Hastings as an 

asset of the Trust prior to his death. When all of the provisions of the trust documents are viewed 

as a whole and considered together, the plain language simply does not show that Francis intended 

to hold the shares in the Trust during his lifetime. As both parties point out, Francis was an attorney 

and judge who was experienced in estate planning. Although he could have amended any part of 

his trust agreement to address the Hastings shares, one of the most significant factors showing his 
No. 1-20-0806 

- 18 - 

intent is the fact that he chose to place the provisions at issue into article III.C.2.a., and he added 

them there without making any other amendments to the paragraphs to which those provisions 

were subordinate. In other words, he added these provisions to the article that states in its initial 

sentence that it is setting forth how the successor trustee is to receive, hold, administer, and 

distribute the trust estate “[u]pon and after the death of Grantor.” Then, in paragraph III.C, he set 

forth the circumstances in which the trustee is to divide the trust estate into two shares “and shall 

administer each of such shares as a separate trust.” Paragraph III.C.2 addresses the second of these 

two shares and sets forth what is to “be set aside as a separate trust to be known as the Residuary 

Trust Share.” Thus, these provisions make clear that the Residuary Trust Share did not come into 

existence as a separate trust until after Francis’ death, and Francis made no amendment that would 

change this fact when he executed the second amendment. 

¶ 30 Instead, Francis added the statement in paragraph III.C.2.a that certain “considerations and 

distributions of principal be made as soon as practicable after the establishment of the Residuary 

Trust Share.” (Emphasis added). This statement indicates that Francis did not intend or believe 

that the “separate trust to be known as the Residuary Trust Share” was a trust that had already been 

established or that existed as of 2012. Then, immediately after this reference to the establishment 

of the Residuary Trust Share, subparagraph III.C.2.a.i states, “This sub-Trust has a twenty-five 

(25%) percent ownership in [Hastings].” (Emphasis added). Based on where Francis placed this 

phrase in the trust agreement and the words immediately preceding it, we agree with the trial court 

that “[t]his sub-Trust” is an unambiguous reference to the Residuary Trust Share trust, a separate 

trust that is only established after Francis’ death. We cannot ignore Francis’ choice to use the term 

“sub-Trust” by interpreting it to mean the Trust as a whole. In context, this is a clear reference to 

the separate Residuary Trust Share trust. 
No. 1-20-0806 

- 19 - 

¶ 31 Because it is clear that Francis was referring in subparagraph III.C.2.a.i to the Residuary Trust 

Share trust and that he did not intend the Residuary Trust Share trust to be established during his 

lifetime, we do not interpret his statement that this sub-Trust “has” a 25% ownership in Hastings 

to be a manifestation of his intent that his ownership interest in Hastings was currently held in trust 

as of that time. Rather, this sentence is more reasonably interpreted as a direction by Francis that, 

after the establishment of the two separate trusts, it is the Residuary Trust Share trust, not the 

Marital Deduction Trust Share trust, that has the ownership share of Hastings. This interpretation

makes sense because, by being made part of the Residuary Trust Share trust, the Hastings shares 

can then be conveyed to Andrew, and the other three children can receive an amount equal to the 

value of the Hastings interest from the principal of the Residuary Trust Share, as provided in the 

subparagraphs that follow subparagraph III.C.2.a.i. 

¶ 32 As for the remainder of the plaintiff’s arguments, we agree that there are isolated phrases 

within the subparagraphs of article III.C.2.a of the trust agreement that could be read to suggest an 

unexpressed understanding by Francis that he considered his ownership share of Hastings to be a 

current asset of the Trust. These would include, for example, references to “this Trust’s ownership 

share” of Hastings and the clause stating that “the Trustees of Grantor’s and Spouse’s respective 

Trusts are entitled, by their agreements with Andrew, to receive income on the Trusts’ 

investments.” However, these are merely isolated phrases, and a key principle of trust 

interpretation is that we cannot rely on isolated words or phrases to ascertain a settlor’s intent, but 

instead we must interpret the instrument as a whole. Provost, 19 So. 3d at 334. It would violate 

this principle if we discerned intent by elevating the significance of these isolated phrases—all of 

which are located within the subpart of the trust agreement addressing the administration of the 

Residuary Trust Share after it has been established—over the trust agreement as a whole as we 
No. 1-20-0806 

- 20 - 

have discussed it above. None of the isolated phrases cited by the plaintiff overcome our 

conclusion that, when the trust agreement is interpreted as a whole, it contains no manifestation of 

intent by Francis to hold his ownership share of Hastings as an asset of the Trust prior to his death. 

¶ 33 We further point out that we find no ambiguity about the fact that trust agreement does not 

show a manifestation of intent by Francis to hold the Hastings interest in trust as of the time he 

executed the second amendment. The plaintiff makes the argument that an interpretation that the 

term “sub-Trust” means the Residuary Trust Share trust creates ambiguity about how to interpret 

other terms of the trust agreement. She contends that this interpretation injects uncertainty about 

how to read subparagraphs (ii) through (v) of article III.C.2.a, and she questions whether some 

instances in which the term “Trust” is used should likewise be interpreted to refer to the Residuary 

Trust Share. We reject this argument because, as explained above, the phrase “[t]his sub-Trust” is 

a clear and unambiguous reference to the Residuary Trust Share. We disagree with the plaintiff 

that interpreting “sub-Trust” to be a reference to the Residuary Trust Share injects ambiguity into 

the subparagraphs of the trust agreement that follow the use of that term. It would appear to us that 

these subparagraphs can all be given meaning and effect after the Residuary Trust Share is 

established, and the plaintiff has not articulated how any specific term or provision is made 

susceptible to more than one reasonable interpretation as a result of interpreting “sub-Trust” to 

mean the Residuary Trust Share. 

¶ 34 Because we have found no ambiguity in the trust documents about the absence of any 

manifestation of intent by Francis to hold his ownership share of Hastings as an asset of the Trust 

prior to his death, the plain language of the trust agreement controls, and we cannot rely on

extrinsic evidence to ascertain Francis’ intent. Vigliani, 189 So. 3d at 219. We point out, though,

that the extrinsic evidence relied upon by the plaintiff goes entirely to Andrew’s understanding 
No. 1-20-0806 

- 21 - 

about whether Francis transferred the Hastings interest into the Trust and the fact that Andrew has 

taken inconsistent positions on the issue over time. See supra ¶ 10. The question, however, is not 

Andrew’s understanding or intent on the issue, but whether Francis’ manifestation of intent to hold 

the shares in trust prior to his death has been shown. 

¶ 35 B. Dismissal “with prejudice”

¶ 36 The plaintiff’s second principal argument on appeal is that the trial court erred in its judgment 

order by dismissing her first amended compliant “with prejudice” based upon its determination 

that the plaintiff lacked standing to bring the claims asserted on behalf of the Trust. The plaintiff 

argues that the dismissal should have been “without prejudice,” because the trial court expressly 

acknowledged that if the Trust later comes into possession of the Hastings shares, such as through 

probate administration, then it would be entitled to assert whatever claims it deemed appropriate 

at that time. We agree with the trial court’s acknowledgement. However, we reject the plaintiff’s

argument that the trial court’s dismissal of the first amended complaint “with prejudice” 

constituted error. 

¶ 37 Procedurally, the trial court dismissed the compliant after granting the defendants’ motion 

for a summary determination of a major issue under section 2-1005(d) of the Code. 735 ILCS 5/2-

1005(d) (West 2018). As mentioned above, that is a section of the Code that normally contemplates 

that further proceedings will occur in a case. It directs the trial court, upon finding that no genuine 

issue of material fact exists as to one or more major issues of a case, to “draw an order specifying 

the major issue or issues that appear without substantial controversy, and directing such further 

proceedings upon the remaining undetermined issues as are just.” Id. Here, however, no further 

proceedings were warranted once the trial court made the summary determination that the Trust 

did not come into possession of the Hastings shares as of 2012 and thus the plaintiff lacked 
No. 1-20-0806 

- 22 - 

standing to pursue the claims that had been asserted on the Trust’s behalf. In other words, the effect 

of the summary determination was that the defendants were entitled to judgment as a matter of law 

on all counts of the first amended complaint, based on the plaintiff’s lack of standing to assert 

them. This is the equivalent of a grant of summary judgment. See Morningside North Apartments 

I, LLC v. 1000 N. LaSalle, LLC, 2017 IL App (1st) 162274, ¶ 8 (construing a summary 

determination that resulted in the disposition of the entire case as a summary judgment). 

¶ 38 This court has previously recognized that “[t]he concept of a summary judgment ‘without 

prejudice’ is inapposite.” Poulos v. Reda, 165 Ill. App. 3d 793, 801 (1987). While a dismissal 

“without prejudice” indicates that a suit has been dismissed without a decision on the merits and 

that the dismissal is not conclusive of the rights of the parties, summary judgment is the equivalent 

of a trial and is an adjudication of a claim on its merits. Id. In this case, all of the claims that the 

plaintiff asserted were premised upon the Trust’s ownership of the Hastings interest from 2012 

until the time of Francis’ death in 2017 and continuing thereafter, and the trial court adjudicated 

the merits of the issue that the Trust did not have ownership of the shares during the relevant time 

period. As the disposition of this case involved an adjudication on the merits, there was no error 

in the trial court’s order dismissing the first amended complaint “with prejudice.”

¶ 39 C. Modification of protective order

¶ 40 The plaintiff’s final principal argument on appeal is that the trial court erred when it denied 

her motion to modify the protective order entered in this case, to permit the use of material that 

had been disclosed in discovery in this case in other pending and contemplated litigation involving 

the present parties and the ownership of Hastings. The plaintiff pointed out that it was undisputed 

that, even if the Trust lacked standing to assert claims involving the ownership of Hastings, 

Francis’ ownership interest in Hastings would eventually pass to it though administration of his 
No. 1-20-0806 

- 23 - 

probate estate, and at that time appropriate claims would be filed on the Trust’s behalf. The motion 

also asserted that present litigation was pending involving Joan’s guardianship and that there 

would also be future litigation involving Joan’s trust amendments and estate, in which her own 

ownership interest in Hastings and her right to receive income would be at issue. Additionally, the 

motion sought to expand the categories of individuals to whom material designated as confidential 

could be disclosed and to strike the section of the protective order requiring the parties to destroy 

material marked confidential at the conclusion of this case. The plaintiff argued that her requested 

modifications to the protective order would avoid duplicative discovery in these other cases. 

¶ 41 In denying the motion, the trial court stated that, while it understood this case was only one 

part of a broader legal dispute involving these parties, it would be improper to enter an order 

allowing the discovery from this case to be used in other legal proceedings and jurisdictions, 

“potentially creating thorny procedural questions for other judges down the line.” The trial court 

thus reiterated its expectation that the parties would comply with the record destruction provisions 

of the protective order at the conclusion of this case. The court stated that if the parties wished to 

use the discovery material produced in this case in other cases, they should follow the appropriate 

discovery procedures of those cases but, as the parties were aware through this litigation of what 

was contained in the records that had been produced, issuing and responding to discovery requests 

should be a pro forma matter.

¶ 42 Prior to the briefing of this appeal, the plaintiff also filed a motion in this court seeking to 

have this court make the same modifications to the protective order that the trial court had refused 

to make. That motion indicated that four separate actions were by then pending in various trial 

courts in Florida and Illinois, which involved these parties and touched upon issues relating to 

those presented in this case. We ordered that the plaintiff’s motion should be taken with the case. 
No. 1-20-0806 

- 24 - 

¶ 43 Illinois Supreme Court Rule 201(c)(1) (eff. July 1, 2014) authorizes a trial court to “make a 

protective order as justice requires, denying, limiting, conditioning, or regulating discovery to 

prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” The 

parameters of protective orders are entrusted to the discretion of the trial court. Skolnick v. 

Altheimer & Gray, 191 Ill. 2d 214, 224 (2000). A reviewing court will alter the terms of a 

protective order only if no reasonably person could adopt the view taken by the trial court. Id. 

¶ 44 We conclude that the trial court properly denied the plaintiff’s motion to modify the 

protective order and further deny the plaintiff’s similar motion filed in this court. We echo the 

reasoning expressed by the trial court, particularly the point that it could be procedurally 

problematic for a court in this case to enter an order that affirmatively permitted the use of 

discovery materials from this case in other litigation. This is especially true given our 

determination that the plaintiff lacked standing to file this case, the fact that much of the collateral 

litigation is pending in a different state with different discovery rules, and that it is unknown to us

exactly how the discovery produced in this case relates to the parties and issues involved in the 

collateral litigation.4

¶ 45 III. CONCLUSION

¶ 46 For the reasons discussed above, the judgment of the trial court is affirmed. 

¶ 47 Affirmed.

4 During the briefing of this appeal, four motions were filed that the court ordered be taken with the 

case. As discussed above, the plaintiff’s motion to modify the protective order is denied. The defendants’ 

motion to dismiss the appeal and enter sanctions against the plaintiff is denied. The defendants’ motion to 

strike the statement of facts in plaintiff’s brief and for other relief is denied. The defendants’ motion to 

strike the plaintiff’s reply brief or alternatively to strike its exhibits is denied.