Docket No. 91496–Agenda 12–March 2002.

FRED EYCHANER et al., Appellees, v. THEODORE GROSS et  								al., Appellants.

OPinpinion filed October 3, 2002.

	JUSTICE FREEMAN delivered the opinion of the court:

	Plaintiffs, Fred Eychaner and Betty Lou Weiss, were directors

of the Auditorium Theatre Council (Council). Plaintiffs brought an

action against defendants, Roosevelt University and its president,

Theodore Gross (collectively Roosevelt), in the circuit court of

Cook County. In the claims and counterclaims that developed in

this case, the Auditorium Theatre Council, Inc. (ATC Inc.), and

Roosevelt, respectively, asserted their authority to control and

operate the Auditorium Theatre (Theatre). Specifically, plaintiffs

and ATC Inc. claimed that Roosevelt placed the right to control

and operate the Theatre into a charitable trust with ATC Inc. as

trustee.

	At the close of a bench trial, the trial court found in favor of

Roosevelt and rejected all theories supporting ATC Inc.’s control

of the Theatre. The trial court, inter alia, declared Roosevelt the sole and exclusive owner of the Theatre. The court also ordered an

accounting of ATC Inc.’s funds to separate public donations from

operating revenues.

	The appellate court, with one justice dissenting, reversed these

orders and remanded the cause for further proceedings. 321 Ill.

App. 3d 759. We allowed defendants’ petition for leave to appeal.

177 Ill. 2d R. 315(a). We now reverse the judgment of the

appellate court, affirm the order of the trial court, and remand the

cause to the trial court for further proceedings.

BACKGROUND

	During the 10-week bench trial, the court received

approximately 400 documents and heard testimony from 37

witnesses, all of which generated 98 record volumes. The bench

trial adduced the following facts.

Setting

	The Auditorium Building is located in downtown Chicago,

bordered by Michigan Avenue on the east, Congress Parkway on

the south, and Wabash Avenue on the west. The building was

designed and built in the late nineteenth century by the renowned

architects Louis Sullivan and Dankmar Adler. The building

originally contained a hotel, commercial office space, and the

Theatre, which comprises approximately 40% of the entire

building. The Auditorium Building, including the Theatre, with its

near-perfect acoustics, was recognized as an architectural

masterpiece. However, by the end of World War II, the building,

including the Theatre, was abandoned and in a state of disrepair.

Cast

	In 1945, Roosevelt was incorporated as an Illinois not-for-

profit corporation. In 1946, it became possible for Roosevelt to

purchase the Auditorium Building and, to that end, the University

solicited and received donations. In 1947, Roosevelt purchased the

building, protected the Theatre from further deterioration, and

converted the remaining space for use as Roosevelt’s campus.

	In the mid 1950s, Roosevelt began exploring ways to restore

the Theatre. On September 11, 1958, a committee of Roosevelt’s

board of trustees recommended to the full board that a separate

not-for-profit corporation be created to restore and operate the

Theatre under that corporation’s “trusteeship.” On September 25,

the full board rejected the proposal amid concerns of giving away

rights to the University’s property. The board recommended that

“[t]he University should remain the ‘trustee’ of the Auditorium

Theatre.”

	At a December 4, 1958, board meeting, trustee Beatrice

Spachner submitted “a plan for the restoration of the Auditorium

Theater and its operation under the auspices of Roosevelt

University.” On February 17, 1959, Roosevelt’s board of trustees

established the Auditorium Restoration and Development

Committee (ARDC), composed of Roosevelt Board members and

faculty, and community representatives. The ARDC was directed

to examine Spachner’s Theatre restoration plan.

	On October 29, 1959, the ARDC reported to Roosevelt’s

board of trustees. At that meeting, the board passed a motion

tentatively approving a fund drive to restore the Theatre, subject

to the following conditions: that the committee’s fund-raising

efforts not impair Roosevelt’s financial resources or credit; that

Roosevelt’s legal counsel recommend to the board “the legal entity

and manner of contract” that would enable Roosevelt to obtain its

objectives; and “[t]hat the University not lose ownership or control

of the Auditorium Theatre.”

	The ARDC oversaw the drafting of a resolution to implement

the fund drive. Attorney Elmer Gertz was the principal drafter of

the resolution. In a letter dated January 21, 1960, Gertz asked

Kenneth Montgomery, Roosevelt’s attorney, to review the draft

resolution. Gertz stated:

		“[A] draft of the resolution has been agreed upon. I am

sending a copy of it herewith. It is the consensus of all

involved in this situation that it is best not to form any separate corporation, foundation, trust or other legal entity, but to proceed in the manner set forth in the

resolution.” (Emphasis added.)

Gertz asked for Montgomery’s ideas on the resolution, specifically

on the subject of tax exemption.

	The ARDC presented the draft resolution to Roosevelt’s

trustees at their February 11, 1960, board meeting. The proposed

resolution renamed the ARDC the Auditorium Theatre Council

(Council) and authorized it to raise funds for and to restore the

Theatre. Several trustees continued to express concerns that the

proposed resolution was not sufficiently explicit in its description

of Roosevelt’s control over the ARDC. They questioned whether

the resolution complied with the board’s October 29, 1959, motion

that Roosevelt “not lose ownership or control of the Auditorium

Theatre.” Criticizing the proposed resolution, trustee Lerner stated

that the “Theater would be given away in perpetuum, under this

proposal. No [Roosevelt] trustee who understands the word ‘trust’

should vote for it.”

	As reflected in the minutes of the board meeting, Gertz

responded to these concerns:

		“[Gertz] was not attempting to make policy for the Board,

he said, but had simply tried to realize its intent as derived

from the Board’s own earlier resolutions and statements

of policy. He went on to say that no separate corporation

had been proposed because this arrangement would be

even more subject to the objection that the University

would be prevented from exercising control over the

Auditorium. He asserted that any action taken by the

proposed Auditorium Council could be changed or

rescinded by the Board of Trustees.”

The resolution was tabled to allow the ARDC to address the

concerns that had been raised.

	On February 18, 1960, the ARDC presented a revised

resolution to Roosevelt’s board of trustees. The revision renamed

the ARDC the Auditorium Theater Council. The revision made

Roosevelt’s control more explicit and further limited the authority

of the Council. Language stating that the Council would “fully

control” the fund-raising, restoration, maintenance, management,

and programming for the Theatre was deleted, leaving the Council

only “responsible” for fund-raising and restoration and “charged

with the responsibility of carrying out the details of” the fund-

raising campaign and the management, programming, and

operation of the Theatre. Language that would have allowed the

Council to “adopt such procedures *** as it may deem necessary”

was dropped. Language was added to ensure Roosevelt board

approval, on an annual basis, of all new members to the Council’s

executive committee. Language was added to ensure the board’s

involvement in establishing a development reserve amount for the

Theatre, with all Theatre revenues above that amount being

transferred to Roosevelt’s unrestricted funds. Language was added

requiring the Council to make periodic progress reports regarding

the restoration to the board, to provide information requested by

the board, to make annual reports of operations to the board, and

to submit to an annual audit by accountants. Finally, language was

added requiring that the actions and programming of the Council

“be in harmony with the aims of the University in serving the

educational and cultural aspirations of the community.”

	The revised resolution, as quoted in the minutes, reads in its

entirety:

		“ ‘Resolved, that it is the intent of the Board of Trustees

of Roosevelt University, for and on behalf of the

University to implement as described hereinafter the plan

for the restoration and operation of the Auditorium

Theater which was submitted by the [ARDC] to the Board

at its meeting of October 29, 1959, and incorporated in its

minutes of that date.

			IT IS, THEREFORE, ORDERED

			(1) That the [Council] be now authorized and directed

to take such steps as it may deem necessary to carry out a

fund drive for the restoration of the Theater with due

regard for safeguarding the right, title and interest of the

University in and to the Theater and protecting the

resources and credits of both the University and the

Council.

			(2) That the Council be responsible for raising funds for

the restoration of the Theater and for the supervision and

administration of its restoration.

			(3) That the Council be empowered to secure the

services of a professional fund-raising executive and staff

to guide and operate the campaign for funds.

			(4) That the Council have authority to supervise the

work of reconstruction, select engineers, architects,

contractors, approve plans and specifications and contract

and pay for the work performed, making periodic progress

reports to the Board and providing requested information.

			(5) That a special fund be established to be known as

the Auditorium Restoration Fund, segregated and separate

from other funds of the University, that contributions for

the restoration be deposited in this fund, and that the fund

be used for no other purpose than the restoration and

operation of the fund drive.

			(6) That the Council not contract, purchase or enter into

obligations of any kind with any supplier or other person

for the furnishing of work, services, or materials, or for any other purpose, unless funds or pledges are available

for that purpose, and unless arrangements with any such

person are in a form approved by legal counsel and

embody the following provisions, among others, (a) a

waiver of mechanics’ liens; (b) the contracting parties will

look only to the Restoration Fund for payment and no to

any other fund of the University; and (c) the contracting

parties will not hold the University nor any member of the

Council or University liable or any reason whatsoever.

			(7) That the Council nominate for Board approval

persons of its selection to be members of an Executive

Committee charged with the responsibility for carrying

out the details of the fund-raising campaign and for the

management, maintenance, budgeting, programming,

financing and operation of the restored Auditorium

Theater.

			(8) That until such time as the Executive Committee of

the Council is formed the Executive Committee of the

[ARDC], members of which have already been approved

by the Board, be responsible for the fund-raising

campaign.

			(9) That the Executive Committee of the Council be

composed of not more than 25 persons; that the initial

membership of the Executive Committee be divided into

three groups, with terms ending respectively in 1961,

1962, and 1963; and that the Council nominate annually

persons for Board approval to serve terms of three years

as the initial terms of the original group end.

			(10) That the Executive Committee of the Council

organize itself and select such officers and committees as

it deems necessary.

			(11) That after the restoration of the Theater, any funds

remaining in the Auditorium Restoration Fund be

transferred to an Auditorium Theater Operating Fund to

be used only for the maintenance and operation of the

Theater and be disbursed by direction of the Executive

Committee of the Council.

			(12) That any surplus resulting from the operation of

the Theater be retained in a development reserve, and that

when an adequate sum, as determined by the Executive

Committee of the Council in consultation with the

Executive Committee of this Board, has been

accumulated, any amount above that reserve be

transferred to the unrestricted funds of the University.

			(13) That the actions and programming of the Council

be in harmony with the aims of the University in serving

the educational and cultural aspirations of the community.

			(14) That the Council or Executive Committee not

conduct any capital, operating or maintenance fund-

raising campaign other than the initial Restoration

Campaign without consent of the Board.

			(15) That the Council through its Executive Committee

prepare annual reports of its operations for the Board, and

that an annual audit of the Council’s operations be made

by a firm of certified public accountants.’ ”

Discussion on the resolution followed.

	Some trustees proposed additional amendments based on their

concerns that the revised resolution did not sufficiently describe

the control that the University would have over the Council.

Kenneth Montgomery, Roosevelt’s attorney, opposed any

additional amendments as unnecessary. He described the Council

as an “agency” of the University and assured the board that

nothing would “prevent the Board of Trustees from ‘deactivating’

the Auditorium Council and Committee [ARDC], who would owe

their origin and authority to the Board.”

	Trustee Gerald Gidwitz, an ARDC member and supporter of

the revised resolution, similarly assuaged the board as reflected in

the minutes:

		“The Committee [ARDC] considered that adequate

protection for the University’s interest inhered in the

Board of Trustees’ right to reconstitute or abolish the

Auditorium Council and Committee, or to alter, modify,

or abolish its powers in any way that the Board of

Trustees might see fit. He said that the Board could change its mind about the terms of the resolution at any

time in the future and he therefore urged that the

resolution be passed without amendment.”

In response to a request, Gidwitz agreed that his statement “could

be incorporated in the minutes as reflecting the agreed

understanding within the Board on the control which the Board

could exercise over the Auditorium Council and [its] Executive

Committee.”

	Upon this agreed understanding, the Roosevelt University

board of trustees rejected the proposed amendments. The board

adopted the revised resolution by a vote of 18 to 7.

	Subsequent to the February 18, 1960, board meeting,

Montgomery wrote a letter to the United States Internal Revenue

Service (IRS), in which he sought a determination on behalf of

Roosevelt that contributions to the Council would be tax

deductible. Montgomery asked the IRS to grant Roosevelt’s

request because contributions to the Council were “in fact

contributions to [Roosevelt] because the Council is its agent.” The

IRS ruled that contributions to the Council would be tax

deductible to the donor, stating: “Since it appears that

contributions to the Council will inure entirely to your

[Roosevelt’s] benefit such contributions will be considered

contributions to you.”

	The Council employed architects, engineers, construction

experts and others to determine a plan to restore the Theatre. The

cost of restoration was estimated at a minimum of $2.75 million.

Roosevelt would often advance funds for the restoration of the

Theatre. On October 31, 1967, the Theatre was reopened to the

public.

	The Council operated the Theatre under the supervision and

control of Roosevelt. At the March 4, 1971, meeting of

Roosevelt’s board of trustees, Chairperson Jerome Stone reported

that Standing Policies and Operating Procedures (SOPs) had been

developed for the Theatre. According to the minutes, Stone

reported: “This statement reaffirms and supplements the Board’s

resolution of February 18, 1960 establishing the Council.” At its

April 22, 1971, meeting, the board approved the SOPs. They mandated procedures the Council was to follow for the day-to-day

operation of the Theatre and further secured the University’s

control over Theatre operations. For example, the SOPs mandated

that all Theatre employees be paid by the University and be subject

to University regulations.

	In the late 1970s, some Council members posited that fund-

raising for the Theatre would improve if the Council could obtain

its own tax-exempt status from the IRS. According to the minutes

of the December 20, 1977, meeting of the Council’s executive

committee, the Council and Roosevelt were discussing “the

establishment of a ‘Shell Corporation’ for the purpose of separate

tax-exempt status of the [Council].”

	Robert Gorman, the University’s attorney, revised a draft of

the articles of incorporation and bylaws of the proposed

corporation. In a letter dated October 22, 1979, Gorman opined:

			“In review, the Articles of incorporation and By-laws

establish a separate Illinois not-for-profit corporation

named the Auditorium Theatre Council. It is explicitly set

forth in the Articles of Incorporation and in the By-laws

that this new corporation is for fund raising purposes only

and has no duties, rights, or operating responsibilities in

connection with the Auditorium Theatre. ***

* * *

			If the Board of Trustees approves the establishment of

a new corporation, the Auditorium Theatre Council will

exist in two legal capacities. In one capacity it will

continue to exist as it has in the past as an unincorporated

agency of Roosevelt University operating under, and

subject to, the direction and control of the Board of

Trustees of Roosevelt University. The books and accounts

of the Auditorium Theatre Council will also continue to

be subject to inspection by[,] and among the fiscal

responsibilities and duties of[,] the Roosevelt Controller.

The use, maintenance, operation and restoration of the

Auditorium Theatre will continue in the identical fashion

it has always done pursuant to the Resolution of the Board of Trustees of Roosevelt University dated February 18,

1960, and the [1971 SOPs].

			In its other legal capacity the Auditorium Theatre

Council will exist as an Illinois not-for-profit corporation

in accordance with the Articles of Incorporation and By-

laws submitted. It will use the name ‘Auditorium Theatre

Council.’ However, the corporation will exist and be used

for the solicitation of funds only. It will not affect in any

way whatsoever the operations of the *** Council and the

*** Theatre which will continue in the same manner as in

the past.”

Gorman concluded that the articles of incorporation and bylaws of

the proposed corporation, Auditorium Theatre Council, Inc. (ATC

Inc.), “are satisfactory and not in conflict with the interests of

Roosevelt University.”

	Beatrice Spachner, University trustee and chairperson of the

Council, reported on the Council’s fund-raising efforts at the

October 25, 1979, meeting of Roosevelt’s board of trustees. She

stated that potential donors hesitated to contribute to the Council

because it was not separately identified as a not-for-profit

corporation organized for tax-exempt purposes. According to

Spachner: “To overcome this concern of contributors, it was

concluded that an affiliate of the Council should be incorporated

only for the purpose of raising funds *** for the restoration,

operation and maintenance of the Auditorium Theatre. *** [T]his

will be the only function of the Corporation.”

	Both the Council and ATC Inc. would share similar names,

and would have largely the same membership. However, the

resolution authorizing the incorporation of ATC Inc. expressly

stated:

		“This corporation is authorized for fund raising purposes

only. The corporation will have no rights whatsoever for

the use, operation, maintenance, or restoration of the

Auditorium Theatre. The use, operation, maintenance and

restoration of the Auditorium Theatre will continue,

without change, to be the responsibility of the Auditorium

Theatre Council in its separate legal capacity as an unincorporated agency of Roosevelt University subject to

the control of the Roosevelt University Board of Trustees

as set forth in the [1971 SOPs]. *** In the event that at

any time in the future [ATC Inc.] should exceed any of

the duties, rights, or powers granted it by this resolution,

the Board of Trustees hereby reserves the right to

terminate any uses, duties or rights of [ATC Inc.] in

connection with the *** Theatre.”

Roosevelt’s board of trustees adopted the resolution.

	On September 8, 1981, ATC Inc. filed its articles of

incorporation with the State of Illinois and was incorporated under

the General Not For Profit Corporation Act (see 805 ILCS

105/101.01 et seq. (West 2000)). According to its articles of incorporation, ATC Inc.’s corporate purpose was, in pertinent part:

		“To raise funds and gifts from individuals and

organizations for the restoration, operation and

maintenance of the Auditorium Theatre *** and the

presentation of educational, civic and cultural programs

therein, with due regard for safeguarding the right, title

and interest of Roosevelt University in and to the Theatre,

so that it will serve as a cultural center for the people of

Chicagoland.”

ATC Inc. subsequently obtained an IRS ruling that ATC Inc. was

a tax-exempt organization and that donations to it would be tax-

deductible by the donor.

	Subsequent to the incorporation of ATC Inc., the University

updated the 1971 SOPs. The 1983 SOPs stated in pertinent part:

			“The purpose of the *** Council is to maintain, operate

and continue the restoration of the internationally famed

Auditorium Theatre of Roosevelt University. The Council

will operate the Theatre for the benefit of the faculty and

students of Roosevelt University and also, subject to the

academic priorities of the University, to make artistic,

cultural and educational contributions to the people of

Greater Chicago through the sponsorship of events in the

performing arts.”

The 1983 SOPs are substantially similar to those of 1971.

Significantly, the 1983 SOPs distinguish the identity and the

function of the Council from those of ATC Inc. The 1983 SOPs

recount that the University created the Council through the 1960

resolution of Roosevelt’s board of trustees and that the University

created ATC Inc. through the board’s October 25, 1979,

resolution. The 1983 SOPs state that the “sole purpose” of ATC

Inc. “is to solicit funds for the Auditorium Theatre.”

Dialogue

	The University paid the Theatre’s operating costs, such as

insurance and employee payroll, from the University’s general

account. Roosevelt was supposed to be repaid from the Theatre

revenue account. However, by the late 1980s, the Theatre’s

operating expenses exceeded its revenues. The Theatre lost more

money than fund raising could offset. The general funds that

Roosevelt expended were not reimbursed. Theatre losses and the

operating deficit increased. Roosevelt paid this deficit by

transferring money from its endowment fund to Theatre accounts.

	On July 1, 1986, Roosevelt trustee Robert Mednick met with

Council chairperson Jack Whitney to discuss this problem.

According to a July 7, 1986, letter from Mednick to Whitney, they

agreed that if the Theatre’s cumulative operating deficit increased

over approximately $250,000, the Theatre would be discontinued

due to a lack of community support. An April 29, 1987, letter by

a Council officer reflected the understanding that if the cumulative

deficit exceeded this amount “at any time, Roosevelt may close

down the Council.”

	The Theatre’s cumulative operating deficit eventually totaled

over $400,000. However, despite the above-stated understanding,

the University kept the Theatre open and continued to support the

Theatre. Eventually, during the 1990s, the Theatre attracted large

Broadway productions such as “Miss Saigon,” “Les Miserables,”

“Phantom of the Opera,” and “ShowBoat.” These productions and

other popular programs enabled the Council to increase its

revenues from ticket sales and to repay the funds transferred to the

Theatre accounts from the University’s other accounts.

Strife

	Beginning in the late 1980s, the Council and Roosevelt

disputed their respective rights over the Theatre. As reflected in a

November 15, 1988, letter from Council chairperson Edward Weil

to University President Gross, the Council recognized signs of

success. “Things are coming together nicely in the operation of the

Theatre and at the same time the Council is starting to get the

favorable recognition it deserves, and is beginning to tap into

major funding sources.” However, a June 26, 1989, memo from

Gross to a committee of University trustees reflected the

University’s view: “The distinction that must continually be made

is between authority and responsibility: the RU Board of Trustees has authority over the Theatre; the [Council] has the responsibility to manage the Theatre.” (Emphases in original.)

	A rift grew between the parties. In 1989, Roosevelt informed

the Council that a Council fund-raising campaign, initiated

without the approval of Roosevelt’s board of trustees, possibly

violated the 1983 SOPs. At the April 14, 1989, meeting of the

Roosevelt board, Gross reported this and other violations. He

suggested options including “[d]rawing up a new agreement that

retains our ownership of the theatre but that establishes the

[Council] as a no[t]-for-profit, separate corporation which pays $1

a year rent to the university and is responsible for its own

operating budget and its own fund-raising.”

	On July 10, 1989, the Council’s executive board agreed with

Gross’ recommendations. The group also concluded that the

Council should continue to manage the day-to-day operations of

the Theatre.

	At its July 20, 1989, meeting, the Roosevelt board of trustees

approved a resolution concerning “the organizational structure

between Roosevelt University and the Auditorium Theatre.” The

resolution stated that the Council “has responsibility for the artistic

direction of the Theatre and the executive director of the Theatre

reports directly to the president of the University with regard to

budgetary and general operating matters.”

	The Council viewed this resolution essentially as Roosevelt

transferring authority for managing the Theatre from the Council

to Roosevelt. The Council’s executive board rejected Roosevelt’s

resolution.

	On August 1, 1989, the Council’s executive board presented

to Roosevelt a proposal to change the relationship between the

University and the Council. The proposal acknowledged that

Roosevelt owned the Theatre. Under the proposal, subject to

conditions such as repayment of funds to Roosevelt, the Council

would be disbanded and all operating authority would be

transferred to ATC Inc., which would conduct fund raising

independently of the University. Roosevelt rejected this proposal.

	On August 24, 1989, the Council’s executive board resigned.

The Council assumed “no further responsibility” for Theatre

operations and advised University trustees to prepare to do so.

	As a result of this discord, Roosevelt and the Council reached

a disharmonious decision. The Council would continue its day-to-

day operations of the Theatre; members of the Council’s executive

board rescinded their resignations; and Gross was elected

chairperson of the Council. At its October 10, 1989, meeting,

Roosevelt’s board of trustees approved the following resolution:

		“The Auditorium Theatre is an aesthetic and financial

asset of Roosevelt University, an integral unit led by an

Executive Director who reports to the President of the

University. The President serves as Chairman of the

Auditorium Theatre Council. The Executive Director is

assisted by the Auditorium Theatre Council in

programming, fund-raising, special events, and other

activities directly related to the Theatre.

			Although Roosevelt University retains final authority

over all matters pertaining to the Auditorium Theatre, the

Board of Trustees recognizes that the Auditorium Theatre

Council must remain as autonomous as possible,

contingent upon sound fiscal management. The University

endorses the concept that Roosevelt University and the

Auditorium Theatre are one entity. Roosevelt University

wishes to assist the Auditorium Theatre in all of its efforts and supports the principle that, as a matter of first priority,

all revenues raised in its behalf be placed in the account

of the Auditorium Theatre for its continuing

advancement.

			The Auditorium Theatre should now be presented as the

Auditorium Theatre of Roosevelt University.”

Whatever understanding the parties may have reached faltered

from the beginning. Roosevelt and the Council constantly disputed

their respective powers over the Theatre and the ownership of the

Theatre’s operating revenues.

	Throughout the early 1990s, the parties conducted continuous

negotiations regarding various forms of agreements to change their

relationship to each other and to the Theatre. For example, in

1991, John Blew, Council and ATC Inc. secretary, presented

another proposal for transfer of Theatre operations from the

Council to ATC Inc. His proposal included several justifications.

First, pointing to the Council’s board, Blew stated that the Council

had an opportunity to move the board’s composition “into a higher

tier by attracting a group of more influential and higher profile

members who both have more money themselves and, perhaps

more important, have greater access to other sources of major funding.” (Emphasis in original.) Blew posited that it was

“essential for such broad development that there be a separate

legal entity and organization with its own identity and mission in

place. The ‘heavy hitters’ we are talking about will simply not lend

their names and prestige to an ‘advisory committee’ or anything of

the sort.” Blew suggested that operating the Council through ATC

Inc. was a necessary condition to strengthening the Council’s

board.

	Blew also recommended that the relationship between the

Council and ATC Inc. be clarified. According to Blew: “The

minutes of meetings of the two ‘mirror’ organizations which now

exist–the unincorporated association and the corporation–are not

in acceptable shape. Most of our own board members don’t really

know or understand the organizational structure.” Blew continued

that “if producers, artists and vendors were aware of the structure

or lack thereof, they might be reluctant to enter into contracts with respect to the Theatre. It is not a healthy situation, and it is one

which should not be permitted to continue.”

	In the course of his proposal, Blew acknowledged: “There is

no question but that the University owns the Theatre and controls

the Council–period.” Roosevelt rejected the proposal.

	Through 1993 and 1994, Roosevelt and ATC Inc. discussed

a license or lease agreement under which Roosevelt would transfer

Theatre operations to a reorganized ATC Inc. On June 22, 1993,

ATC Inc. sent a letter to the IRS inquiring into the corporation’s

tax-exempt status if it took over Theatre operations. In the letter,

ATC Inc. represented to the IRS, under penalty of perjury, that the

Council has operated the Theatre as a “part” of, or “unit within,” the

University since 1960 and that a “proposal” hasd been made to

transfer Theatre operations to ATC Inc. prospectively. The IRS

determined that the proposed reorganization would not affect the

tax-exempt status of ATC Inc. By December 1994, the parties had

agreed on neither the terms of a license nor the makeup of the

proposed reconstituted ATC Inc.

	During this time, ATC Inc. made additional proposals to

Roosevelt regarding the Theatre. In mid-1994, ATC Inc. offered

to purchase the Theatre from Roosevelt for $1 million, but the

University rejected the offer. In November 1994, ATC Inc. offered

to purchase the Theatre for $3 million, which offer the University

rejected.

	At a December 15, 1994, meeting of the Council’s executive

committee, Gross requested that the committee recommend the

transfer of $1.5 million out of the $3 million then contained in the

Theatre’s operating accounts into Roosevelt’s general accounts.

Roosevelt wanted to use the $1.5 million to finance its new

Schaumburg campus. The money would be transferred from the

Theatre’s operating revenues and not from contributions. The

Theatre’s executive director stated at this meeting that the transfer

would not impair Theatre operations. ATC Inc. members objected

to the transfer. It was agreed that no action would be taken on the

request pending receipt of an opinion from Roosevelt’s counsel

regarding the legality of the proposed transfer.

Adversaries

	The next day, plaintiffs brought this lawsuit. In July and

November 1995, the Roosevelt University board of trustees

approved resolutions that: (1) dissolved the Council; (2) withdrew

any and all powers given to ATC Inc.; and (3) authorized a new

not-for-profit corporation to manage and operate the Theatre,

known as the Auditorium Theatre of Roosevelt University (AT of

RU).

	In their complaint, plaintiffs sought an injunction prohibiting

defendants and ATC Inc. from directing the transfer of any money

from ATC Inc. to Roosevelt for non-Theatre purposes. Also,

plaintiffs sought a declaration that Roosevelt had placed the

Theatre “in the public domain for the benefit of the people of

Chicagoland,” with the Council and its successor, ATC Inc., as

trustee. Plaintiffs also sought a declaration that, inter alia: ATC Inc. had legal title to all funds donated and all revenue generated

from its operations; any transfer of money from ATC Inc. to

Roosevelt for non-Theatre purposes would violate the articles of

incorporation and bylaws of ATC Inc.; and such transfer would

violate the General Not For Profit Corporation Act of 1986 (805

ILCS 105/101.01 et seq. (West 2000)).

	Roosevelt filed an answer, in which the University raised

defenses. Roosevelt claimed that ATC Inc.’s sole corporate

purpose was to raise funds for the Theatre and that the board of

trustees of the University, the owner of the building, had never

granted ATC Inc. authority or power to restore, maintain, or

operate the Theatre. Roosevelt also claimed that ATC Inc. did not

succeed the Council created in 1960. Among its defenses,

Roosevelt claimed: “there is absolutely no legal doctrine involving

the dedication of private property to the ‘public domain,’ at least

without a governmental taking though a condemnation proceeding

with just compensation.”

	Roosevelt also filed a counterclaim against plaintiffs and ATC

Inc. for declaratory and injunctive relief. Roosevelt sought a

declaration that the University owns all right, title, and interest in

the Theatre. Roosevelt sought a further declaration that: the University has the sole power and authority to restore, maintain,

and operate the Theatre; that the University granted a revocable

license to the Council to perform those tasks; and that ATC Inc.

has no right to perform those tasks, but was created solely for fund

raising purposes. Roosevelt also sought, inter alia, an accounting of ATC Inc.’s funds and an injunction to prevent ATC Inc. from

operating the Theatre.

	ATC Inc. filed its own counterclaim against Roosevelt. The

corporation asserted a number of alternative legal theories in

support of its claimed control of the Theatre.

	The trial court granted Gross’ motion to dismiss all claims

against him as legally insufficient (see 735 ILCS 5/2–615(a) (West

2000)). Also, granting Roosevelt’s motion for partial judgment on

the pleadings (see 735 ILCS 5/2–615(e) (West 2000)), the trial

court held that: (1) Roosevelt had the authority and right to restore,

maintain, and operate the Theatre; (2) ATC Inc.’s sole right is to

raise money for the Theatre; and (3) the positive net operating

revenues from Theatre performances are the property of the

University.

	In a Rule 23 order, the appellate court reversed the orders of

the circuit court and remanded the cause for a trial. Eychaner v. Gross, Nos. 1–95–3614, 1–96–1412 cons. (1997) (unpublished order under Supreme Court Rule 23). The appellate court

determined that disputed questions of material fact existed

regarding the parties’ relationship. The appellate court also held

that plaintiffs’ claims were legally sufficient.

	On remand, plaintiffs and ATC Inc. (hereafter referred to as

plaintiffs) amended their pleadings. They, inter alia, altered their trust theory to assert an “express trust” of the right to restore,

maintain, and operate the Theatre, which they referred to as the

“Auditorium Theatre Trust.” Plaintiffs maintained their allegations

that the Council was the trustee and ATC Inc., as legal successor

to the Council, became, and remains, the trustee. In its

counterclaim against Roosevelt and Gross, ATC Inc. alleged, inter alia: (1) an express charitable public trust; (2) constructive trust; (3) breach of contract based on the 1960 resolution and SOPs; (4)

equitable estoppel; and (5) promissory estoppel.

	At the close of a bench trial, on September 28, 1998, the court

entered judgment in favor of Roosevelt on its counterclaim and

denied plaintiffs’ theories of relief. The trial court declared the

University to be the sole and exclusive owner of the Theatre. The

trial court: ordered plaintiffs to turn over control of the Theatre to

the newly formed AT of RU; barred the Council and ATC Inc.

from operating and controlling the Theatre; and ordered an

immediate accounting of Theatre operations. On September 29,

the trial court made an express written finding making these orders

immediately enforceable (see 155 Ill. 2d R. 304(a)).

	A divided appellate court reversed these orders and remanded

the cause for further proceedings. 321 Ill. App. 3d 759. The

appellate court held that the trial court’s conclusion that there was

no express trust was clearly erroneous. 321 Ill. App. 3d at 779.

Based on that holding, the court declined to address plaintiffs’

alternative claims. 321 Ill. App. 3d at 780-81. A concurring justice

wrote separately to disagree with the dissent. 321 Ill. App. 3d at

785 (Cahill, P.J., specially concurring). The dissenting justice

concluded: “Because there is enough admissible evidence to

support the trial judge’s view that this was a takeover attempt by

an instrumentality of Roosevelt University, I would affirm his

conclusion that there is no trust.” 321 Ill. App. 3d at 788 (Wolfson,

J., dissenting). We allowed defendants’ petition for leave to

appeal.1

	We subsequently granted leave to DePaul University and the

Illinois Institute of Technology to file an amicus curiae brief in support of defendants’ appeal. We also granted leave to the

Landmarks Preservation Council of Illinois to file an amicus curiae brief in support of plaintiffs.

ANALYSIS

I. Standard of Review

	The parties disagree as to our standard of review of the trial

court’s decision. Defendants contend that we should review the

trial court’s decision under the “manifest weight of the evidence”

standard. Plaintiffs contend that the “clearly erroneous” standard

is the proper standard of review. The appellate court employed the

“clearly erroneous” standard of review. 321 Ill. App. 3d at 770.

	The trial court heard witness testimony and resolved conflicts

of fact. In a bench trial, the trial court must weigh the evidence and

make findings of fact. In close cases, where findings of fact

depend on the credibility of witnesses, it is particularly true that a

reviewing court will defer to the findings of the trial court unless

they are against the manifest weight of the evidence. Chicago Investment Corp. v. Dolins, 107 Ill. 2d 120, 124 (1985). The findings of the trial court as to the existence of a trust will not be

disturbed on review unless such findings are against the manifest

weight of the evidence. In re Estate of Zukerman, 218 Ill. App. 3d 325, 330 (1991) (and cases cited therein). This standard also

applies regarding the existence of an agency relationship. Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 47 (1994). A decision is against the manifest weight of the evidence only when an

opposite conclusion is apparent or when the findings appear to be

unreasonable, arbitrary, or not based on the evidence. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 242 (1996); Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 106 (1995); Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995). “The court on review must not substitute its judgment for that of the trier of

fact.” Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434 (1991).

	Nevertheless, the trial court also construed and ruled on the

legal effect of documents. In reviewing the trial court’s

conclusions of law, we apply a de novo standard of review. See Norskog v. Pfiel, 197 Ill. 2d 60, 70-71 (2001); Woods v. Cole, 181 Ill. 2d 512, 516 (1998); T. O’Neill & S. Brody, Taking Standards of Appellate Review Seriously: A Proposal to Amend Rule 341, 83 Ill. B.J. 512, 516 (1995). We now turn to the merits of the issues

before us.

II. Express Charitable Trust

	Plaintiffs claim that the 1960 resolution of Roosevelt’s board

of trustees, together with the surrounding circumstances, created

an express charitable trust with the Council and its successor, ATC

Inc., as trustee in charge of restoring and operating the Theatre.

The trial court rejected plaintiffs’ claim, and concluded that

Roosevelt created the Council as its agent for restoring and

operating the Theatre. The appellate court reversed and remanded

for further proceedings, finding “legal and factual errors in the trial

court’s resolution of the charitable trust issue.” 321 Ill. App. 3d at

771.

	Before this court, plaintiffs, as appellees, not only defend the

appellate court’s judgment, but also request, as cross-relief, that

we declare the existence of the alleged trust. We decline plaintiffs’

request. The record contains ample evidence that supports the trial

court’s findings of fact.

	The controlling legal principles are quite settled. A trust “is a

fiduciary relationship with respect to property, subjecting the

person by whom the title to the property is held to equitable duties

to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.” (Emphasis added.) Restatement (Second) of Trusts §2 (1959). In

Illinois, creation of an express trust requires: (1) intent of the

parties to create a trust, which may be shown by a declaration of

trust by the settlor or by circumstances which show that the settlor

intended to create a trust; (2) a definite subject matter or trust

property; (3) ascertainable beneficiaries; (4) a trustee; (5)

specifications of a trust purpose and how the trust is to be

performed; and (6) delivery of the trust property to the trustee.

Zukerman, 218 Ill. App. 3d at 329; In re Estate of Wilkening, 109 Ill. App. 3d 934, 940-41 (1982); Price v. State, 79 Ill. App. 3d 143, 148 (1979).

	“A charitable trust is a fiduciary relationship with respect to

property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable

purpose.” (Emphasis added.) Restatement (Second) of Trusts §348

(1959). Charitable trusts have similar characteristics as private trusts (Restatement (Second) of Trusts §348, Comment a (1959)), and the methods of creating both types of trusts are the same

(Restatement (Second) of Trusts §349, Comment a (1959)). However, charitable trusts need not specify definite beneficiaries

(Restatement (Second) of Trusts §364, Comment a (1959)) and may be perpetual (Restatement (Second) of Trusts §365, Comment

a (1959)).

	Each of the requisite elements of an express trust must be

established. If any one of the necessary elements is not described

with certainty, no trust is created. Wilkening, 109 Ill. App. 3d at 941; accord In re Frain, 222 B.R. 835, 837 (Bankr. N.D. Ill. 1998) (applying Illinois law); In re Marchiando, 142 B.R. 246, 249-50 (N.D. Ill. 1992) (same). “Stated otherwise, any attempt to create

an express trust that omits one or more of the formal requirements

automatically fails.” 76 Am. Jur. 2d Trusts §46, at 74 (1992). The requirement that each of the necessary elements of an express trust

be established has long been the law in Illinois. See, e.g., Tucker v. Countryman, 414 Ill. 215, 221 (1953); Marble v. Estate of Marble, 304 Ill. 229, 235 (1922).

A. Trust Element of Intent

	The trial court found that Roosevelt did not intend to create an

express charitable trust through the 1960 resolution, but rather

intended to create the Council as its agent. As earlier emphasized,

an express charitable trust arises, by definition, “as a result of a

manifestation of an intention to create it.” Restatement (Second)

of Trusts §§2, 348 (1959). “The intention of the settlor to presently create a declaration of trust is essential.” (Emphasis in original.) Kavanaugh v. Estate of Dobrowolski, 86 Ill. App. 3d 33, 39 (1980). Indeed, “the primary focus in determining the existence of

a trust must be on the intent of the settlor to establish a trust at the

time of the creation of the alleged trust ***.” 76 Am. Jur. 2d

Trusts §64, at 92 (1992). It is not enough that the settlor secretly intends to create a trust. No trust will arise unless there is an

outward expression of the settlor’s intention at the time of the

trust’s purported creation. Kavanaugh, 86 Ill. App. 3d at 40; Restatement (Second) of Trusts §4, Comment a (1959).

	“It is immaterial whether or not the settlor knows that the

intended relationship is called a trust, and whether or not [the

settlor] knows the precise characteristics of the relationship which

is called a trust.” Restatement (Second) of Trusts §23, Comment a (1959). As a learned treatise explains:

		“In many cases the owner of property in disposing of it

has no very clear idea of the precise nature of the

disposition that [the owner] intends to make. The

distinction between a trust and other juridical

relationships is not always an easy one to draw, even for

the trained lawyer. It is often difficult to tell whether the

owner of property is creating a trust or making some other

disposition. A trust is created if in substance what [the

settlor] intends to create is the relationship that lawyers

know as a trust. In most cases, and particularly where the

intention is manifested in an instrument drawn by a

competent lawyer, there is no difficulty in determining

whether the owner of property has manifested an intention

to create a trust.” 1 W. Fratcher, Scott on Trusts §23, at

249-50 (4th ed. 1987).

As otherwise stated: “There must be a particular intent to confer

benefits through the medium of a trust, and not through some

related or similar device.” G. Bogert, Trusts & Trustees §46, at

489-91 (rev. 2d ed. 1984).

	The manifestation of intention to create a trust “may clearly

appear from written or spoken words or may be determined by

interpretation of the words or conduct of the settlor in the light of

all the circumstances.” Restatement (Second) of Trusts §4,

Comment a (1959). No particular form of words or conduct is necessary for the manifestation of intent to create a trust.

Restatement (Second) of Trusts §23, Comment a (1959). Indeed, “[a] trust may be created although the settlor does not use the word

‘trust ***.’ ” Restatement (Second) of Trusts §24, Comment b (1959). “Acts prior to and subsequent to, as well as acts

contemporaneous with the manifestation which it is claimed

creates a trust, may be relevant in determining the settlor’s

intention to create a trust.” Restatement (Second) of Trusts §24,

Comment b (1959). “The question in each case is whether the settlor manifested an intention to create the kind of relationship

that to lawyers is known as a trust.” 1 W. Fratcher, Scott on Trusts

§24, at 250 (4th ed. 1987); accord Price, 79 Ill. App. 3d at 148.

1. The Resolution Standing Alone

	Plaintiffs claim that the 1960 resolution “comprehensively

defined the relationship between Roosevelt and the Council.”

Plaintiffs contend that the 1960 resolution of the Roosevelt

University board of trustees, by itself, manifests the University’s

intent to create a charitable trust, in which the Council acts as

trustee over the right to restore and operate the Theatre for the

benefit of the public. When a document makes clear the existence

of a trust, no particular form of words is necessary. A court will

support an intention to create a trust wherever such intention can

be fairly collected from the language of the instrument. Zukerman, 218 Ill. App. 3d at 330. “In determining that intent the court must

consider the plain and ordinary meaning of the words used

[citations], and the intent must be ascertained by considering the

entire document.” First National Bank of Chicago v. Canton Council of Campfire Girls, Inc., 85 Ill. 2d 507, 514 (1981).

	Assuming, without deciding, that restoration and operation of

the Theatre constitute possessory interests in real property that can

be held in trust, it is clear that the 1960 resolution, standing alone,

did not manifest an intent on the part of Roosevelt to create a

charitable trust. We earlier quoted the resolution in its entirety. On

its face, the resolution lacks many indicia that are consistent with

charitable trusts.

	Initially, the resolution does not contain any words of

alienation or conveyance, i.e., there are no words of transfer of an interest in the property from a “settlor” to someone or something

that might be a “trustee.” Plaintiffs point to certain “rights” that

the resolution transferred to the Council. The resolution

“authorized and directed” the Council to raise funds for the

Theatre restoration. The resolution made the Council

“responsible” for supervising the restoration. The resolution also

“empowered” the Council to hire a fund-raiser and staff and gave

the Council “authority to supervise” the reconstruction while reporting to the Roosevelt University board of trustees. According

to plaintiffs: “Virtually every paragraph of the Resolution grants

broad discretion to the Council as trustee. *** Thus, the Resolution itself contains overwhelming evidence of Roosevelt’s

intent to authorize and empower the Council to act as fiduciary for the public and, in that capacity, to possess, restore and operate the Theatre, and hold and spend donations and Theatre revenues.”

(Emphasis added.)

	Plaintiffs specifically discuss paragraph 12 of the 1960

resolution, which authorized the Council to retain any Theatre

operating surplus in a development reserve. Plaintiffs describe

paragraph 12 as expressing “Roosevelt’s intent that the Theatre

would be operated by the autonomous independent Council, using

Theatre revenues to defray all expenses.” According to plaintiffs,

paragraph 12 gave the Council the “widest discretion to determine

the adequacy of the development reserve, not only to assure the

future of the Theatre for the public, but also to provide Roosevelt

with additional protection from liability. Once an adequate reserve

was established, Roosevelt would share in surpluses to support its

academic mission.” Indeed, plaintiffs go so far as to argue that

Roosevelt, by paragraph 12 of the 1960 resolution, gave away its

fundamental right of ownership of the Theatre. According to

plaintiffs, paragraph 12 indicates the durable nature of the trust by

providing that the Council “would continue to fulfill its mission”

for an indefinite period of time by building a development reserve

to fund the ongoing preservation of the Theatre.

	It is clear that plaintiffs fail to distinguish the concepts of

agency and trust. It must be remembered that “[t]here are a number

of widely varying relationships which more or less clearly

resemble trusts, but which are not trusts, although the term ‘trust’

is sometimes used loosely to cover such relationships.”

Restatement (Second) of Trusts, ch. 1, topic 2, at 15 (1959). “An

agency is not a trust.” Restatement (Second) of Trusts §8 (1959).

An agent is one who undertakes to manage the affairs of another,

on the authority and for the account of the latter, who is called the

principal, and to render an account to the principal. See Mills v. State National Bank, 28 Ill. App. 3d 830, 834 (1975). Thus, when A puts his or her property in the hands of B to keep or manage, A creates, as between A and B, the relation known as principal and

agent. In re Estate of Morys, 17 Ill. App. 3d 6, 9 (1973). An agent is subject to the control of the principal. Restatement (Second) of

Trusts §8, Comment b (1959); 76 Am. Jur. 2d Trusts §13, at 45 (1992).

	In this case, the resolution never uses the word “rights” in

connection with the restoration and operation of the Theatre.

Rather, the resolution delegated duties to the Council. The only

time the resolution uses the word “rights” is when Roosevelt

preserved and safeguarded its own property rights in the Theatre. 

	The intent to grant authority to take action with respect to real

property is not the same as the intent to permanently alienate or

transfer an ownership interest. See Olson v. Etheridge, 177 Ill. 2d 396, 406 (1997) (distinguishing an assignment of rights from a

delegation of duties). Although the resolution makes the Council

responsible for performing these duties, nothing in the resolution

indicates an intent to alienate any alleged “rights” from Roosevelt.

Rather, the delegation of duties to the Council created an agency

relationship. For example, an apartment building owner directs her

property manager to manage the building with discretion to make

decisions concerning building maintenance and finances.

However, the delegation of these duties does not alienate the same

rights from the owner, who can always step in and make decisions

on her own relating to those matters. Also, the building owner

retains the ultimate power to prevent the manager from taking any

action with respect to her property or to discharge the manager

altogether.

	In this case, the resolution specifically directs that the Council

act with “due regard for safeguarding the right, title and interest of

the University in and to the Theatre.” This is a clear expression of

Roosevelt’s intent to retain, rather than transfer, its property rights

in and to the Theatre.

	The 1960 resolution lacks other indicia that are consistent

with charitable trusts. The resolution contains no words of delivery

or any provision directing a delivery of property or an interest in

property. The resolution states no “charitable” or “public” purpose,

or any purpose to benefit anyone else. Also, the resolution does not state any purpose to confer benefits through the medium of a

trust.

	Further, the 1960 resolution contains a number of provisions

that are inconsistent with the creation of a trust. The resolution

states that the legal title to and all rights in the Theatre are to

remain in Roosevelt, which precludes an alienation or transfer of such rights to a “trustee” as would be necessary for a trust. The

resolution affirmatively states that it is intended to benefit its

author, Roosevelt.

	Also, the 1960 resolution contains many restrictions on the

Council. Pursuant to the resolution, the Council was required to

report periodically to the board regarding the restoration of the

Theatre and to provide the board with requested information. The

Council had to deposit all funds raised into a special, segregated

University account. The Council could not enter into any

contracts, purchases, or obligations unless certain criteria were

met, including having the money on hand to pay for the obligation.

The Council’s programming for the Theatre was required to be in

harmony with the University’s aims. The Council had to prepare

an annual report for Roosevelt’s board of trustees and submit to an

annual audit. Also, all nominees for the Council’s executive

committee required approval of Roosevelt’s board of trustees.

These controls on the Council indicate an agency relationship.

	The 1960 resolution, standing alone, cannot be read as a trust

instrument. Every provision of the resolution is more consistent

with the intent to create an agency relationship than the intent to

create a trust, and the resolution lacks elements that are required

to create a trust.

2. Parol Evidence

	Plaintiffs additionally rely on parol evidence, i.e., evidence outside of the resolution itself, to prove their claim of an express

charitable trust. It is settled that an express trust may be

established by parol evidence. However, one seeking to establish

an express trust by parol evidence bears the burden of proving the

trust by clear and convincing evidence. The acts or words relied

upon must be so unequivocal and unmistakable as to lead to only one conclusion. If the parol evidence is doubtful or capable of

reasonable explanation upon any other theory, it is not sufficient

to establish an express trust. Maley v. Burns, 6 Ill. 2d 11, 18 (1955); Cusack v. Cusack, 339 Ill. 108, 120 (1930); Zukerman, 218 Ill. App. 3d at 330.

	We note plaintiffs’ contention that the clear-and-convincing

burden of proof does not apply to their attempt to prove the

existence of the express trust using parol evidence. Plaintiffs

contend that the clear-and-convincing burden of proof applies only

to attempts to establish trusts with oral statements or other parol

evidence, or attempts to modify written trusts through oral

statements. According to plaintiffs, the express trust is based on

the 1960 resolution, “as defined in part by the contemporaneous

circumstances surrounding the Resolution’s enactment and the

later conduct of the parties.”

	We cannot accept this argument. This court explained long

ago:

		“ ‘Where the trust does not appear on the face of the deed

or other instrument of transfer, a resort to parol evidence

is indispensable. It is settled by a complete unanimity of

decision that such evidence must be clear, strong,

unequivocal, [and] unmistakable ***.[’] *** ‘As a

general rule, the policy of the law requires that everything

which may affect the title to real estate shall be in

writing,–that nothing shall be left to the frailty of human

memory or as a temptation to perjury; and whenever this

policy of the law has been broken in upon and parol

evidence admitted, the courts have been ever careful to

examine into every circumstance which may affect the

probability of the alleged claim, as the lapse of time, the

means of knowledge and circumstances of the witness;

and it will not grant the relief sought where the claim has

been allowed to lie dormant for an unreasonable length of

time or where the evidence is not very clear in support of

the alleged right ***’.” Keuper v. Unknown Heirs of Mette, 239 Ill. 586, 592 (1909).

In this case, plaintiffs offer evidence outside of the purported trust

instrument, i.e., the 1960 resolution, as additional proof of their claim. Such evidence must be so clear and convincing as to lead

to only one conclusion. See Maley, 6 Ill. 2d at 18.

	Turning to the merits, plaintiffs contend that the trial court

erroneously excluded certain parol evidence offered at trial and

ignored other parol evidence admitted at trial. Plaintiffs presented

parol evidence from several sources: (a) the official actions of

Roosevelt, the purported settlor, through its board of trustees; (b)

statements by individual trustees and executives of Roosevelt and

by others; and (c) statements made to the public. The evidence

consisted of both exhibits and witness testimony.

	The trial court considered that most of the parol evidence that

plaintiffs presented “were not pertinent to the legal intent of the parties.” (Emphasis in original.) The court concluded that

“statements made by individuals are immaterial. The only one that

could create an express trust was Roosevelt acting through its

Board of Trustees. They never did so.”

	This narrow view of admissible evidence was erroneous. All

of the circumstances are relevant in determining the settlor’s intent

to create an express trust. See Price, 79 Ill. App. 3d at 148; LaThrop v. Bell Federal Savings & Loan Ass’n, 42 Ill. App. 3d 183, 188 (1976), aff’d, 68 Ill. 2d 375 (1977); Restatement (Second) of Trusts §24, Comment b (1959); 76 Am. Jur. 2d Trusts §§65, 66 (1992).

	However, this evidentiary error does not compel reversal. It

is the judgment of the trial court, and not what else may have been

said by the trial court, that is on appeal to a court of review.

Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387 (1983). In a nonjury case the whole record is before the

reviewing court. Any error which may have been committed in

ruling upon the admission or exclusion of evidence is unimportant.

If there is competent evidence sufficient to sustain the trial court’s

decision it will be affirmed, regardless of the views of the trial

court as to the competency of the evidence at trial. Newman v. Youngblood, 394 Ill. 617, 625 (1946).

	In this case, the record contains ample evidence to support the

trial court’s conclusion that Roosevelt did not intend to create an

express charitable trust through the resolution but, instead, intended to create the Council as an agent for restoring and

operating the Theatre.

	Plaintiffs posit that the official actions of Roosevelt show that

the University intended to establish a charitable trust to protect the

University’s real estate tax exemption. We recounted at length the

history that gave rise to and the debate that surrounded the

resolution’s adoption on February 18, 1960. The record includes:

the rejection of the suggestion that a separate entity run the

Theatre under its own “trusteeship”; the October 29, 1959, motion

passed by Roosevelt’s board of trustees requiring that under the

ultimate arrangement Roosevelt not lose “ownership or control”

of the Theatre; and the Trustees’ direction on February 11, 1960,

that the resolution be revised to comply with the conditions of the

October 29, 1959, motion. Also surrounding the February 18,

1960, resolution was the “agreed understanding,” based on trustee

Gidwitz’s statement that Roosevelt would exercise unlimited

control over the Council and could change the terms of the

resolution, including paragraph 12, at any time. These official

actions of the Roosevelt University board of trustees clearly show

that the University never intended to relinquish its ownership and

control over the Theatre.

	Also, subsequent official actions of Roosevelt demonstrated

its intent to create an agency relationship through the 1960

resolution. The 1971 SOPs expressly “reaffirm[ed] and

supplement[ed]” the 1960 resolution. The 1983 SOPs, expressly

recounting the 1960 resolution, mandated that the Council operate

the Theatre for the benefit of Roosevelt. The 1983 SOPs also recounted that the “sole purpose” of ATC Inc. was “to solicit

funds” for the Theatre. Notably, in July 1995, Roosevelt’s board

of trustees dissolved the Council.

	However, plaintiffs contend that Roosevelt expressed its

intent to create a charitable trust in two documents approved by

Roosevelt. The Council’s 1962 bylaws and ATC Inc.’s 1981

bylaws each state that Roosevelt would “take no unilateral action

to terminate the availability” of the Theatre as long as the property

was used for purposes consistent with the objectives set forth in

the bylaws. In the Council’s 1962 bylaws, Roosevelt additionally stated that it would not “sell the building without undertaking to

provide for the continued functioning of the Council program.”

	This evidence is not clear and convincing. The above

statements can be viewed consistently with an agency relationship.

Accordingly, they are insufficient to establish an express charitable

trust.

	Plaintiffs next point to statements of individual Roosevelt

officials made subsequent to the resolution’s adoption on February

18, 1960, to prove that the University intended by that resolution

to create an express charitable trust. However, these statements are

outweighed by ample evidence. Statements from officials of

Roosevelt, the Council, and ATC Inc. establish that, through the

resolution, Roosevelt did not intend to create an express charitable

trust but, rather, intended to create an agency relationship with the

Council.

	The IRS ruled in 1960 that contributions to the Council would

be tax deductible because the Council was not a separate entity

from Roosevelt. In 1993, ATC Inc. represented to the IRS, under

penalty of perjury, that the Council had operated the Theatre as a

“part” of or “unit within the University” since 1960 and that a

“proposal” had been made to transfer Theatre operations to ATC

Inc. prospectively. Thus, ATC Inc. admits that the Council never

was an entity separate from Roosevelt.

	In addition to the evidence already discussed, the record

contains additional evidence against plaintiffs’ claim of an express

charitable trust. The trial court heard the testimony of Roosevelt

University trustees Gidwitz, Stone, Mednick, Newman, Anixter,

and Gross. The court summarized their testimony as follows:

		“Six Roosevelt trustees testified in the case at bar. All

agreed that during each’s tenure on the Roosevelt Board,

the University never placed the Theatre in trust nor did it

take any action to divest itself of any control over the

Theatre. These same individuals all testified that they

never heard of a purported public trust until the onset of

this litigation.”

The trial court heard the testimony of these witnesses, observed

their demeanor, and assessed their credibility. The court’s findings based thereon are entitled to deference. See Chicago Investment Corp., 107 Ill. 2d at 124.

	Also, members of ATC Inc.’s executive committee testified

at trial. They conceded that ATC Inc.’s offers to lease or buy the

Theatre from Roosevelt were attempts by the corporation to gain

the control over the Theatre that it lacked. They testified that such

actions would have been “unnecessary and superfluous” if ATC

Inc. actually had control of the Theatre. As John Blew, secretary

of the Council and of ATC Inc., stated to University President

Gross: “There is no question but that the University owns the

Theatre and controls the Council–period.”

	Plaintiffs point to the following as evidence of trust intent. On

April 5, 1960, Harland Allen, chairperson of Roosevelt’s board of

trustees, and Beatrice Sprachner, University trustee and Council

chairperson, jointly issued a statement “for the purpose of

clarifying any misunderstandings which may exist regarding plans

for restoration and operation of the Auditorium Theatre.” The

“Seven-Point Statement” was printed in several Chicago

newspapers the next day. It explained that the Council would

“have full authority and responsibility for the restoration campaign

and the operation of the theater” and would have “full authority

and responsibility for the programs that go into the theater and for

supervision of theater operations.”

	Plaintiffs point to additional statements by individual

Roosevelt trustees and executives. For example, on March 4,

1960, Allen announced in a press release:

		“The University’s trustees have been impressed by and

are fully cognizant of the public trust which the ownership

of the Theater has imposed upon them. *** By creating

the Auditorium Theater Council *** the Board hopes to

establish the reconstruction and operation of the Theater

as a project from which the entire community will benefit

and of which every citizen of the community can justly be

proud.”

In the April 1960 edition of “Progress,” a Roosevelt publication,

Dr. Edward Sparling, University president, reported in his column

in pertinent part:

		“Ever since Roosevelt University purchased the

Auditorium building as its home in 1946 we have held the

theater itself in trust for the people of Chicago.

* * *

			The recent action of the Board of Trustees, in granting

permission to an independent civic group–the Auditorium

Theater Council–to restore and operate the Auditorium

Theater, frees Roosevelt University of the financial

burden carried these years, and also frees it from any

financial liability in regard to the restoration and operation

of the theater. It makes available to the people of Chicago

this added cultural and educational facility.

* * *

			The Auditorium Theater Council is taking a large

burden from the University’s shoulders, leaving all those

dedicated to the academic program free to develop and

expand the educational service to the community for

which the University was founded and for which it lives.”

Also, President Sparling, wrote a letter to the Chicago Tribune,

which was printed on April 6, 1960. He stated that the University

“has held the theater in trust for the community.”

	Additionally, Spachner spoke at a 1961 fundraiser. There,

Spachner described to potential donors the goals of the Council

and referred to the Theatre as a community treasure “held in trust.”

In a January 2, 1962, letter, Elmer Gertz, principal drafter of the

resolution, referred to a “trust imposed upon the property.”

	These statements do not constitute unequivocal evidence that

Roosevelt intended to create an express charitable trust though the

1960 resolution. None of these statements refer to the resolution

creating a trust. To the contrary, most of these statements declare

that Roosevelt held the Theatre “in trust” or was cognizant of the “public trust” that ownership of the Theatre involved. “A

charitable trust is not created unless the settlor manifests an

intention to impose enforceable duties. *** A charitable trust is

not created if the settlor manifests an intention to impose merely

a moral obligation.” Restatement (Second) of Trusts §351,

Comment c (1959). Terms such as “held in trust” or “public trust” can be loosely made and could broadly refer to other relationships.

See Restatement (Second) of Trusts, ch. 1, topic 2, at 15 (1959).

	For example, Gertz’ letter of January 2, 1962, states in

pertinent part:

			“By resolution of its governing body, Roosevelt

University created an agency, The Auditorium Theatre Council, and authorized this agency to raise funds to restore the Auditorium Theatre, to carry on the restoration

out of the funds so raised, and to operate the Theatre

when restored.” (Emphases added.)

Gertz opined that pledges of funds had become enforceable

promises and that Roosevelt was obligated to proceed with the

restoration and subsequent operation of the Theatre. He further

opined:

			“This obligation on the part of the University will continue so long as the Theatre continues to serve the

purposes for which it was restored and without financial

drain on the University. The University could not destroy

the trust imposed upon the property by a sale of the

Theatre to a private corporation or by demolition of the

building.” (Emphasis added.)

Again, this evidence speaks of a “trust” on the part of Roosevelt, not the Council. Indeed, the letter expressly states that the

resolution created an agency relationship with the Council. This is

consistent with Gertz’s January 21, 1960, letter to Roosevelt’s

attorney, in which he stated: “It is the consensus of all involved in

this situation that it is best not to form any separate *** trust or

other legal entity, but to proceed in the matter set forth in the

resolution.”

	We note that Gertz testified at trial. During his testimony, he

referred to the resolution as constituting “a trust intended for the

Auditorium Theatre.” The trial court expressly weighed Gertz’s

statements that were contemporaneous with the resolution,

assessed the credibility of his trial testimony, and assigned little

weight thereto. This determination is particularly entitled to

deference. See Zaderaka v. Illinois Human Rights Comm’n, 131 Ill. 2d 172, 180 (1989).

	This evidence could establish that Roosevelt created an

agency relationship with the Council. Therefore, it is insufficient

to establish an express charitable trust.

	Plaintiffs also posit that statements made to the public show

that the University intended to establish a charitable trust.

Plaintiffs introduced various statements made in press releases,

newspaper articles, fund-raising brochures, and a magazine

published by a local savings and loan institution. This material

generally discussed the degree of day-to-day autonomy the

Council would have in restoring and operating the Theatre and

how the Council would utilize donations to it. Plaintiffs called

witnesses who testified that they relied on these communications

in connection with fund-raising.

	However, independence of spirit or conduct is not

determinative of the Council’s legal status as intended by

Roosevelt through the resolution. Determinative of a principal-

agent relationship is whether the principal has the right to control the actions of the agent, not whether the principal actually exercises that right. Darner v. Colby, 375 Ill. 558, 560-61 (1941); See Reith v. General Telephone Co. of Illinois, 22 Ill. App. 3d 337, 339 (1974) (and cases cited therein).

	In this case, Roosevelt gave the Council, as with many types

of agents, broad day-to-day authority to conduct its

responsibilities. However, the question is not the extent of the

Council’s day-to-day authority over the Theatre, but rather

whether Roosevelt retained the right to exercise control if that ever

became necessary. Overwhelming evidence proves that Roosevelt

intended to and did retain the right to control the actions of the

Council. For example, surrounding the 1960 resolution was the

“agreed understanding,” based on trustee Gidwitz’s statement, that

Roosevelt would exercise unlimited control over the Council and

could change the terms of the resolution at any time. Further, the

1971 and 1983 SOPs mandated procedures the Council was to

follow for the day-to-day operation of the Theatre and further

secured Roosevelt’s control over Theatre operations. The parties

were aware that Roosevelt controlled both the Council and the

Theatre. Indeed, Roosevelt exercised the ultimate control over the

Council by dissolving it.

	The circumstances giving rise to the 1960 resolution, the

circumstances surrounding its adoption by Roosevelt’s board of

trustees, and the subsequent acts that show Roosevelt’s intent in

adopting the resolution amply and clearly support the findings of

the trial court. As noted above, the appellate court in this case

reversed and remanded for further proceedings based on what it

perceived to be “legal and factual errors in the trial court’s

resolution of the charitable trust issue.” 321 Ill. App. 3d at 771.

However, the appellate court should have considered all of the

facts and circumstances to determine if the trial court’s findings

were supported by sufficient evidence. Had the appellate court

done so, including any evidence erroneously excluded, it would

have upheld the trial court’s findings because they were based on

more than sufficient evidence. As the appellate court dissent

observed:

			“[T]he evidence, including the exhibits the judge

declined to consider, does not lead inexorably to the

success of the plaintiffs’ position. The test for the judge’s

factual determinations is whether they are supported by

the manifest weight of the evidence. [Citation.] That is,

after looking at all the admissible evidence, even, for

purpose of argument, the newspaper clippings, can we say

a conclusion opposite that of the trial judge is ‘clearly

evident’? [Citation.] If we cannot say that, we are

engaging in impermissible second-guessing.” 321 Ill.

App. 3d at 786-87 (Wolfson, J., dissenting).

We agree.

	The trial court was presented with a considerable amount of

evidence, including witness testimony. Ruling against plaintiffs,

the court found that Roosevelt, by the 1960 resolution, did not

intend to create an express charitable trust, with the Council as

trustee for the benefit of the public. Rather, the trial court found

that Roosevelt created the Council to act as Roosevelt’s agent.

	It is true that the record contains some evidence that supports plaintiffs’ claim. However, the record contains ample evidence to

support the trial court’s findings. It must be remembered that it

was the trial court who saw the witnesses and heard them testify.

“It is axiomatic that a reviewing court may not reweigh the evidence or substitute its judgment for that of the trier of fact.

Findings of fact are entitled to deference, and this is particularly

true of credibility determinations.” Zaderaka, 131 Ill. 2d at 180; accord Chicago Investment Corp., 107 Ill. 2d at 129. This court has long observed:

		“ ‘Underlying this rule is the recognition that, especially

where the testimony is contradictory, the trial judge as the

trier of fact is in a position superior to a court of review to

observe the conduct of the witnesses while testifying, to

determine their credibility, and to weigh the evidence and

determine the preponderance thereof. We may not

overturn a judgment merely because we might disagree

with it or might, had we been the trier of facts, have come

to a different conclusion.’ ” Greene v. City of Chicago, 73 Ill. 2d 100, 110 (1978), quoting Schulenburg v. Signatrol Inc., 37 Ill. 2d 352, 356 (1967).

Regardless of which particular pieces of evidence the trial court

may have cited in its decision, the court’s findings were supported

by evidence. Given the entire record on appeal, we cannot say that

the trial court’s factual findings were against the manifest weight

of the evidence.

	In this appeal, the controlling issue is whether Roosevelt

intended to create an express charitable trust. The trial court’s

finding, supported by ample evidence, that Roosevelt did not so

intend controls the disposition of the remaining issues.

B. Remaining Trust Elements

	Two additional requirements of an express trust are: the

existence of a definite subject matter or trust property, sometimes

referred to as the corpus of the trust; and delivery of the trust

corpus to the trustee. Zukerman, 218 Ill. App. 3d at 329.

	In this case, the trial court determined: “the Theatre cannot be

the corpus of the trust because Roosevelt has held title in the

Theatre since it purchased it in the 1940’s and has safeguarded its

right, title, and interest since that time.” The court ruled that as a

matter of law, a trust corpus was limited to tangible property and

interests in real property and other intangibles could not be held in trust. Thus, the trial court concluded that the right to restore and

operate the Theatre could not constitute the trust corpus.

	Further, the trial court found that the alleged trust failed for

lack of delivery of the trust corpus. According to the court,

plaintiffs failed to show that Roosevelt had ever relinquished its

right, title and interest in the Theatre. The trial court also found

that its determination that there was no charitable trust obviated

the need to consider the remaining requirements of an express

trust.

	The appellate court assigned error to the trial court’s legal

conclusion that the right to restore and operate the Theatre could

not be the corpus of an express charitable trust. 321 Ill. App. 3d at

776-78. The appellate court noted that, “[i]n rejecting the fact that

the right to operate, restore and maintain the Theatre could

constitute the corpus of the trust, the court incorrectly analyzed the

issue of delivery of the trust corpus.” 321 Ill. App. 3d at 778. The

appellate court also assigned error to the trial court’s failure to

consider the remaining trust elements. “With that approach the

trial court failed to consider a variety of circumstances that

indicate trust intent contrary to the recognized principle of law that

proof of intent may be demonstrated by surrounding

circumstances.” 321 Ill. App. 3d at 779. The appellate court held

that, based on these perceived errors, the trial court’s conclusion

that there was no express trust was clearly erroneous. 321 Ill. App.

3d at 779.

	We disagree. The appellate court dissent correctly reasoned:

			“I do not agree the trial judge’s finding of a lack of

intent to create a trust rests on his apparently mistaken

view that intangible rights cannot be the corpus of a trust.

The judge’s first finding that there was no such intent had

nothing to do with the corpus issue.

* * *

			Lack of a permissible corpus was a second, alternative

reason offered by the trial judge. It is not the sine qua non of his decision.” 321 Ill. App. 3d at 787 (Wolfson, J.,

dissenting).

The record supports this position.

	The trial court expressly found: “One thing was abundantly

clear at the time of the passing of the 1960 Resolution–The Board

of Trustees of Roosevelt was not going to create anything that would diminish their interest in or power over the Theatre.”

(Emphasis added.) Thus, the trial court expressly determined that

Roosevelt did not intend to create a trust of any sort, regardless of what the corpus might be, how that corpus would be delivered,

and whether the remaining trust elements were present. “In any

event, we need not accept the trial court’s legal conclusion, as long

as its factual determinations are supported by the record. As stated

above, the relevant findings were amply supported in this case.

Thus, there is no basis for any finding of error.” People ex rel. Illinois Historic Preservation Agency v. Zych, 186 Ill. 2d 267, 282 (1999).

	The trial court found that Roosevelt did not intend to create a

trust of any sort. This finding, supported by ample evidence,

compels the conclusion that no trust was created, and obviates

consideration of the remaining trust elements. See, e.g., Wilkening, 109 Ill. App. 3d at 941-42.

III. Remaining Issues

A. Agency

	The appellate court assigned error to the trial court’s finding

that Roosevelt, through the 1960 resolution, intended to create an

agency relationship with the Council. The appellate court

concluded: “For the reasons previously discussed, we cannot say

the factual and legal errors which formed the basis of the [trial]

court’s analysis regarding the trust issue did not erroneously cause

the court to find [an] agency relationship.” 321 Ill. App. 3d at 780.

However, for the reasons earlier stated in this opinion, we

conclude that the trial court’s finding of agency, amply supported

by the evidence, must be upheld. See Zych, 186 Ill. 2d at 282.

B. Plaintiffs’ Alternative Contentions

	Since the appellate court reversed the trial court and remanded

on the express charitable trust claim, the appellate court expressly

declined to address plaintiffs’ alternative claims of relief. 321 Ill. App. 3d at 780-81. Plaintiffs assert them here; none are

meritorious.

	Plaintiffs contend that we should declare a constructive trust

over ATC Inc.’s funds, to ensure that representations to the

donating public are carried out and donations are not diverted. A

constructive trust is one raised by operation of law as

distinguished from an express trust. Suttles v. Vogel, 126 Ill. 2d 186, 193 (1988). A constructive trust is an equitable remedy that

may be imposed to redress unjust enrichment caused by a party’s

wrongful conduct. Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co., 114 Ill. 2d 278, 293 (1986). The proceeds of the alleged wrongful conduct must exist as an

identifiable fund traceable to that conduct, such that it can become

the res of the proposed trust. People ex rel. Nelson v. Bates, 351 Ill. 439, 443 (1933); Moore v. Taylor, 251 Ill. 468, 472-73 (1911).

	In this case, the funds at issue are donations not from the

public but rather from Theatre operating revenues. As the trial

court found:

		“It is also clear to this Court that [defendants] have never

*** assumed control over any public contributions to the

Theatre, never interfered with any of the [appurtenances]

of the Theatre, nor jeopardized the Theatre continuing as

a cultural center for the public’s benefit. Significantly,

there has been no injustice nor injury to the public as their

monies, gifted upon the Theatre, were expended, for that

purpose and that purpose only.

* * *

			The only thing that cannot be done is spend donations

given to the Theatre, by the public, for anything but the

Theatre. However, this is not an issue in this case. There

is no evidence that Roosevelt ever attempted to do that.

No one has ever said that in this lawsuit. They may have

said it to the media, but never in this suit.”

Moreover, the trial court ordered that all donations to the Theatre

must be accounted for and restricted to Theatre use. We agree with

the appellate court dissent (321 Ill. App. 3d at 788 (Wolfson, J.,

dissenting)) that there is no evidence of an identifiable fund traceable to any wrongful conduct in this case. See In re Estate of Franke, 124 Ill. App. 2d 24, 33-34 (1970). Accordingly, this claim fails.

	We consider plaintiffs’ next three claims collectively.

Plaintiffs claim an express bilateral contract. Plaintiffs contend

that the 1960 resolution and the seven-point statement constituted

a contract between Roosevelt and the Council, and ATC Inc. as

successor, which was later amended by the 1971 and 1983 SOPs.

	Plaintiffs claim that Roosevelt is equitably estopped to deny

the authority of ATC Inc. to operate the Theatre. Plaintiffs contend

that although Roosevelt purportedly reserved the right to terminate

any allegedly unauthorized conduct by ATC Inc., Roosevelt never

took any action. According to plaintiffs, ATC Inc. relied upon

Roosevelt’s inaction and the University is now estopped to deny

ATC Inc.’s “continuing right to operate the Theatre.”

	Plaintiffs also claim a license by estoppel. They contend that

Roosevelt granted the Council, and now ATC Inc., a license to

restore and operate the Theatre and that Roosevelt is estopped to

revoke the license.

	For plaintiffs to prevail on any of these theories of entitlement

to control over the Theatre, they must prove that the Council was

granted and held rights or interests in the Theatre greater than that

retained by Roosevelt, which were then legitimately transferred to

ATC Inc., and that those rights were not revocable. Without these

legal and factual prerequisites, plaintiffs’ claims cannot succeed.

	Plaintiffs contend that the Council and ATC Inc. became

“fused.” Plaintiffs argue that the role of ATC Inc. gradually

expanded subsequent to its creation and eventually “took over the

rights and duties of the unincorporated Council” as its “successor.”

Plaintiffs rely on ATC Inc.’s bylaws as empowering it to operate

the Theatre. The bylaws state that ATC Inc.’s purposes are, inter alia, “[t]o restore[,] modernize and operate the Auditorium Theatre.” As additional proof, plaintiffs point to contracts that

ATC Inc. entered into with vendors and others in its own name.

	We cannot accept this contention. All of plaintiffs’ claims of

control fail because neither Roosevelt nor the Council ever granted

to ATC Inc. the right to restore and operate the Theatre.

	The trial court found as follows. Although Roosevelt and

ATC Inc. were in negotiations regarding their relationship to the

Theatre, by the time the present lawsuit was filed, no transfer of

rights to or control of the Theatre had been accomplished. The trial

court found that ATC Inc. was solely a fund-raising arm, initially

of the Council, and now of the AT of RU. The court further found:

		“[Plaintiffs] ask this court to assert that ATC, Inc. has

ownership rights to all the funds and assets in the Theatre.

They maintain that [the Council] and ATC, Inc. were

blended together and that they became one and they now

own the funds and the assets of the Theatre. It is true the

groups usually had the same membership. However, these

groups had different minutes, reported to the IRS in

different ways, were established for different purposes

and were treated differently by the trustees of Roosevelt.

Even most of the group opposing Roosevelt, when called

upon to testify, indicated that they recognized and

reported the differences between the [Council] and ATC,

Inc. The overwhelming amount of evidence clearly

showed that the groups never merged. ATC, Inc. never

had any right to governance. All they could do is raise

money for the restoration of the Theatre. They never had

any rights to the funds. After reviewing the documents,

after hearing the testimony, after examining ever[y] piece

of evidence, the Court finds that all these counts fail.

ATC, Inc. has no ownership rights, there is no equitable

or promissory estoppel and the transfer of funds to

Roosevelt, from [the Council] and ATC, Inc. Is proper.”

Ample evidence supports the trial court’s findings.

	We earlier recounted the circumstances surrounding the

creation of ATC Inc. and its relationship with Roosevelt and to the

Theatre. This evidence includes the following. By its resolution,

Roosevelt’s board of trustees expressly authorized the

incorporation of ATC Inc. “for fund raising purposes only.” This

sole purpose of ATC Inc. is reflected in its articles of

incorporation. The 1983 SOPs distinguished the identity and

function of the Council from those of ATC Inc. and expressly stated that the sole purpose of ATC Inc. was to solicit funds for the

Theatre.

	This evidence includes ATC Inc.’s own actions. In 1993, ATC

Inc. represented to the IRS that the Council operated the Theatre

as a unit of Roosevelt and that ATC Inc. did not operate the

Theatre. Indeed, in their trial testimony, members of ATC Inc.

admitted that ATC Inc.’s negotiations with Roosevelt to purchase

or lease the Theatre from Roosevelt: (1) were attempts to gain the

control over the Theatre that it lacked; and (2) would have been

“unnecessary and superfluous” had ATC Inc. actually had control

over the Theatre. Indeed, as John Blew, ATC Inc. and Council

secretary acknowledged to Roosevelt: “There is no question but

that the University owns the Theatre and controls the

Council–period.”

	Also, the trial court found that the language in ATC Inc.’s

bylaws, which purportedly allows ATC Inc. to do more than raise

funds, was “inconsistent with all the other evidence presented.”

The court found that ATC Inc.’s articles of incorporation limited

its corporate purpose to fund raising. Any action by ATC Inc. to

operate the Theatre was ultra vires. Ample evidence supported this finding. All of plaintiffs’ alternative claims were based on the

erroneous factual premise that ATC Inc. legitimately operated the

Theatre. More than sufficient evidence supports the trial court’s

rejection of this premise.

	The trial court’s findings are not against the manifest weight

of the evidence. See Leonardi, 168 Ill. 2d at 106. We find no basis to disturb the trial court’s rejection of these claims. See Zych, 186 Ill. 2d at 282.

	In response to these findings, ATC Inc. invokes this court’s

equitable power. “Courts of equity possess original and inherent

power to recognize, execute and control trusts and trust funds.”

Village of Hinsdale v. Chicago City Missionary Society, 375 Ill. 220, 233 (1940). Equity considers the general charitable purpose

of a settlor as the substance of the gift and the mode indicated in

the trust document for effectuating this purpose as a mere incident

of the gift. First National Bank of Chicago v. Elliott, 406 Ill. 44, 55-56 (1950); Missionary Society, 375 Ill. at 233.

	Where a literal execution of a charity becomes impossible,

impracticable, or inexpedient, and the settlor has manifested a

general intent to create a charitable trust, a court, in the exercise of

its ordinary equity powers, will not allow the trust to fail. Rather,

the court will execute the trust cy pres, i.e., as near as the court can according to the trust’s original purpose. Missionary Society, 375 Ill. at 233; Kemmerer v. Kemmerer, 233 Ill. 327, 338-39 (1908); accord Restatement (Second) of Trusts §399 (1959). When a

definite charitable trust is created, the failure of the particular

mode in which it is to be effectuated does not destroy the charity;

equity will substitute some other mode so that the substantial

intent of the settlor shall not depend on the insufficiency of the

formal expression of the trust document. Webb v. Webb, 340 Ill. 407, 420 (1930). Accordingly, a court of equity has the power to

substitute one trustee in place of another for the purpose of

administering a charitable trust. See Mason v. Bloomington Library Ass’n, 237 Ill. 442, 449 (1908).

	These principles make clear, as ATC Inc. concedes, that this

court’s exercise of its equitable power in this regard is linked to

Roosevelt’s trust intent. However, as we previously discussed, the

trial court found that Roosevelt did not intend to create a trust of

any sort, which finding is supported by ample evidence. Since

Roosevelt did not intend, by the 1960 resolution, to create a

charitable trust, then there is no charitable trust intent for this court

to effectuate.

	As an alternative request for cross-relief, plaintiffs ask that we

reassign this case to a new trial judge on remand. Supreme Court

Rule 366(a)(5) permits a reviewing court, in its discretion, to make

any order or grant any relief that a particular case may require. 155

Ill. 2d R. 366(a)(5). This authority includes the power to reassign

a matter to a new judge on remand. See, e.g., In re Marriage of Smoller, 218 Ill. App. 3d 340, 346-47 (1991); People v. Austin, 116 Ill. App. 3d 95, 101 (1983). Plaintiffs refer to four

circumstances that allegedly call into question the trial court’s

impartiality. The trial court allegedly ignored principles of trust

law and excluded relevant evidence. Also, in the course of ruling

on Roosevelt’s counterclaim, specifically the breach of fiduciary

count against Eychaner and Weiss, the trial court commented on plaintiff Eychaner’s motive for bringing this litigation. The court

found that Eychaner was liable and that Weiss was not. Lastly,

subsequent to its decision, the trial court held the Council’s

executive director in direct criminal contempt, a ruling which the

appellate court reversed.

	We decline plaintiffs’ request. A trial judge is presumed to be

impartial, and the burden of overcoming this presumption rests on

the party making the charge of prejudice. See In re Marriage of Petersen, 319 Ill. App. 3d 325, 339 (2001); In re Marriage of Hartian, 222 Ill. App. 3d 566, 569 (1991). “To conclude that a judge is disqualified because of prejudice is not, of course, a

judgment to be lightly made.” People v. Vance, 76 Ill. 2d 171, 179 (1979).

	A judge’s rulings alone almost never constitute a valid basis

for a claim of judicial bias or partiality. Liteky v. United States, 510 U.S. 540, 555, 127 L. Ed. 2d 474, 490-91, 114 S. Ct. 1147,

1157 (1994). Allegedly erroneous findings and rulings by the trial

court are insufficient reasons to believe that the court has a

personal bias for or against a litigant. Hartian, 222 Ill. App. 3d at 569. Also, it is clear that ordinarily the fact that a judge has ruled

adversely to a party in either a civil or criminal case does not

disqualify that judge from sitting in subsequent civil or criminal

cases in which the same person is a party. Vance, 76 Ill. 2d at 178; see Nehring v. First National Bank in DeKalb, 143 Ill. App. 3d 791, 805 (1986).

	Rather, the party making the charge of prejudice must present

evidence of prejudicial trial conduct and evidence of the judge’s

personal bias. Petersen, 319 Ill. App. 3d at 339; Hartian, 222 Ill. App. 3d at 569. This personal bias can stem from an extrajudicial

source. United States v. Grinnell Corp., 384 U.S. 563, 583, 16 L. Ed. 2d 778, 793, 86 S. Ct. 1698, 1710 (1966); Petersen, 319 Ill. App. 3d at 339; Hartian, 222 Ill. App. 3d at 569.

	In this case, plaintiffs do not offer any evidence of judicial

bias or prejudice stemming from an outside source. Rather,

plaintiffs base their claim on the trial itself. Judicial bias or

prejudice can also stem from the facts adduced or the events

occurring at trial. Liteky, 510 U.S. at 551, 127 L. Ed. 2d at 488, 114 S. Ct. at 1155. In this regard, the United States Supreme Court

has explained:

		“[O]pinions formed by the judge on the basis of facts

introduced or events occurring in the course of the current

proceedings, or of prior proceedings, do not constitute a

basis for a bias or partiality motion unless they display a

deep-seated favoritism or antagonism that would make

fair judgment impossible. Thus, judicial remarks during

the course of a trial that are critical or disapproving of, or

even hostile to, counsel, the parties, or their cases,

ordinarily do not support a bias or partiality challenge.

They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make

fair judgment impossible.” (Emphases in original.) Liteky, 510 U.S. at 555, 127 L. Ed. 2d at 491, 114 S. Ct. at 1157.

Accord Petersen, 319 Ill. App. 3d at 340; People v. Damnitz, 269 Ill. App. 3d 51, 57 (1994).

	The four circumstances to which plaintiffs refer as evidence

of judicial bias do not display such deep-seated favoritism or

antagonism that would make fair judgment impossible. Rather, the

circumstances arise in the context of allegedly erroneous findings

and rulings, which are insufficient to show judicial bias against

plaintiffs. Further, the trial court expressly based its remarks

regarding Eychaner on his credibility as a witness, “which is

clearly within the purview of the trial court.” McCormick v. McCormick, 180 Ill. App. 3d 184, 194 (1988). Accordingly, we decline plaintiffs’ request to reassign this case to another judge on

remand.

CONCLUSION

	For the foregoing reasons, the judgment of the appellate court,

which reversed the order of the circuit court of Cook County, is

reversed, and the cause is remanded to the trial court for further

proceedings consistent with this opinion.

Appellate court judgment reversed;

circuit court judgment affirmed;

cause remanded.

	JUSTICE RARICK took no part in the consideration or

decision of this case.