Eychaner v. Gross

JUSTICE WOLFSON, dissenting:

This lawsuit has gone on for more than four years. There has been a prior appeal, after tortuous motion practice in the trial court. The bench trial took about 10 weeks. I would not send the case back for another trial.

The controlling issue in this case is whether the purported settlor intended to create a trust. In re Estate of Zukerman, 218 Ill. App. 3d 325, 329 (1991). Another issue, interesting but not controlling, is whether the right to operate, restore, and maintain the Theatre can be the corpus of a trust.

No trial is perfect. This one had its share of imperfections. For example, I cannot understand why the judge allowed himself to be lectured on the law of trusts nor do I see how law professors are in a position to determine the ultimate factual issue of the settlor’s intent. Maybe some of the exhibits that were excluded should have been admitted, but I cannot see the relevance of newspaper articles on the issue of intent when they are offered for some purpose other than their truth.

At any rate, the 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. In re Estate of Zukerman, 218 Ill. App. at 330. 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”? Fieldcrest Builders, Inc. v. Antonucci, 311 Ill. App. 3d 597, 604 (1999). If we cannot say that, we are engaging in impermissible second-guessing.

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.

He relied heavily, in my view correctly, on the February 18, 1960, resolution, the minutes of the meeting that produced that resolution, and the January 21, 1960, letter of Elmer Gertz, ACT’s lawyer, to Roosevelt’s lawyer. Gertz said:

“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.)

He also said: “The resolution expresses the full intent of all concerned.” The word “trust” does not appear in the resolution. Admittedly, it does not have to be there to create a trust, but its absence, given the sophisticated level of the players, is hardly an endorsement for the plaintiffs’ view.

One can examine the 1960 resolution, the other admissible documents, and the behavior and statements of the parties and their agents, and then make an honest argument for either side—intention to create a trust, lack of intention to create a trust.

Roosevelt and everyone else clearly understood people would give more money to the Theatre if they thought the school was not getting it. Behavior was driven by tax laws and the urgency of fund-raising, not by any desire to establish a trust. We should not disregard the judge’s analysis of the admissible evidence.

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. I should add that I am not all that certain the right to operate, restore, and maintain the Theatre can be the corpus of an express trust. At least, no Illinois case goes that far. Burke v. Burke, 259 Ill. 262 (1913), cited by the majority, concerned the real estate of a testator after termination of a fife estate. “There is no uncertainty about the subject-matter of the trust,” said the court. Burke, 259 Ill. at 269 . Here, there is.

Clearly, the corpus of a trust can be an intangible thing. Restatement (Second) of Trusts § 82 (1959). That same section notes that intangible things such as the good will or trademark of a business cannot be the subject of a trust apart from the transfer of the business. See Restatement (Second) of Trusts § 82, Illustration 2 (1959). It seems to me a case can be made for the conclusion that Roosevelt never surrendered control of the business. The 1960 resolution is replete with attempts by Roosevelt to maintain control of Theatre operations. Under the circumstances, the right to operate, restore, and maintain the Theatre is, for trust corpus purposes, vague, amorphous, and ephemeral.

The “intangible thing” issue aside, I would hold the trial judge’s conclusion that Roosevelt did not intend to create a trust at all is not against the manifest weight of the evidence. There is no good reason to send back the case.

Nor do I see any merit to the plaintiffs’ other, fallback positions.

It cannot be a constructive trust. A constructive trust is an equitable remedy which will be imposed on proceeds of a breach of fiduciary duty. Baumgartner v. First Church of Christ, Scientist, 141 Ill. App. 3d 898, 908 (1986). There is no clear and convincing evidence of an identifiable fund traceable to a breach of a fiduciary duty in this case. See In re Estate of Franke, 124 Ill. App. 2d 24, 31 (1970). The other claims made by plaintiffs—breach of contract, equitable estoppel, promissory estoppel, unjust enrichment, and director conflict of interest—cannot be taken seriously.

I do not believe we should end litigation just because it has gone on for a long time and everybody’s interests would be served by a resolution. I do believe, however, we should not strain to find a reason to return to go.

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.

I respectfully dissent.