FIFTH THIRD BANK, NA v. Rosen
957 N.E.2d 956
Ill. App. Ct.2011Background
- Leon Rosen died May 24, 1999; Frieda Rosen predeceased him; beneficiaries were Myrna, Adrienne Sher, and Sher's daughter Jennifer Sher.
- Leon executed the Rosen Revocable Trust in 1982, amended four times (No. 4 in 1998); Frieda created two trusts with Leon’s power of appointment as to Frieda’s assets.
- Paragraph 4.01 of amendment No. 4 directed distributions among Myrna, Adrienne, and Jennifer with a defined “Sher Distributable Share” and an “Appointed Property” term.
- The trial court granted summary judgment finding a 50% to Myrna and 25% to Adrienne and Jennifer; plaintiffs argued this misread the trust terms.
- Plaintiffs later amended and added Bank of America; Myrna sought attorney fees from the Rosen Trust; the appellate court reviewed the major-issues summary judgment grant and the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether paragraph 4.01 fixes 50/25/25 distributions | Fifth Third argues formula yields 50% to Myrna and 25% each to Sher and Phillips | Myrna contends amendment No. 4 changed prior allocation; intent to distribute per formula. | Court held amendment No. 4 controls; not 50/25/25 per prior version. |
| Whether Bank of America was a necessary party | Plaintiffs argued Bank of America must be joined as a party | Court did not resolve finality; Rule 304(a) not satisfied; not appealable. | Claim as to Bank of America not final; lack of jurisdiction to decide this issue. |
| Whether the attorney-fee award against Rosen Trust was proper | Fees were not for protection/management of the trust | Fees properly reimbursable for trust administration | Fees improper; reverse award and vacate fee order. |
Key Cases Cited
- In re Estate of King, 304 Ill.App.3d 479 (1999) (de novo review for major-issues determinations when no factual dispute)
- Funk, 221 Ill.2d 30 (2006) (interlocutory nature of denial of summary judgment; cross-motions exception)
- Bank of America, N.A. v. Carpenter, 401 Ill.App.3d 788 (2010) (interpretation of wills and trusts; settles ambiguity by looking to entire instrument)
- In re Trusts of Strange, 324 Ill.App.3d 37 (2001) (trust expenses and attorney fees may be borne by the trust if for administration)
- Riordan, 351 Ill.App.3d 594 (2004) (fees awarded only if beneficial to the estate; not for personal defense)
- Laas, 134 Ill.App.3d 504 (1985) (latent vs. patent ambiguity; use of extrinsic evidence where appropriate)
- Peck v. Froehlich, 367 Ill.App.3d 225 (2006) (ambiguity requires extrinsic evidence; otherwise apply plain terms)
- Handelsman v. Handelsman, 366 Ill.App.3d 1122 (2006) (scrivener's errors not available for decisional judgment errors)