No. 1-15-0419 Opinion filed September 30, 2015

FIFTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

JAGODA TRZOP, JESSICA TRZOP, ) Appeal from the Circuit Court BRIAN TRZOP and MARIA ) of Cook County. BARBAR HOROSZKO, ) ) Plaintiffs-Appellants, ) ) v. ) No. 2014 CH 05454 ) ANNA M. HUDSON, Individually and ) The Honorable Successor Trustee of the Halicki Family ) Rodolfo Garcia, Trust, ) Judge, presiding. ) Defendant-Appellee ) ) (Zygmunt Halicki, ) ) Intervenor-Appellee). )

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Palmer concurred in the judgment and opinion.

OPINION No. 1-15-0419

¶1 On September 28, 2007, intervenor Zygmunt Halicki (Zygmunt) and his

now-deceased wife Jadwiga signed a trust declaration with themselves as

grantors and primary beneficiaries and with 11 successor beneficiaries,

including the four plaintiffs. On February 6, 2014, while residing with

defendant Anna M. Hudson, Zygmunt, who was 92 years old and the sole

surviving grantor, reduced the number of successor beneficiaries to two,

namely, defendant Hudson and Marian Zalicki, who are Zygmunt's daughter

and son, respectively. Plaintiffs, who were now eliminated from the trust, sued

defendant Hudson; and the trial court ruled that plaintiffs lacked standing to

challenge the validity of the amendment and dismissed their suit. For the

following reasons, we reverse and remand.

¶2 BACKGROUND

¶3 I. Declaration of Trust

¶4 On September 28, 2007, intervenor Zygmunt and his wife signed a

document entitled "Declaration of Trust." The declaration named Zygmunt and

Jadwiga as both the trustors and the trustees, and named the trust the "Halicki

Family Trust." The declaration stated that if Zygmunt or his wife ceased to act,

the other shall act alone. If both Zygmunt and his wife ceased to act, then Anna

Hudson was appointed as successor trustee. Marian Halicki was appointed as

successor trustee, if Anna Hudson ceased to act.

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¶5 The declaration named Zygmunt and his wife as the initial beneficiaries:

and they placed in the trust a "single family house at 602 Council Trail, Mount

Prospect, Illinois." The declaration stated that Zygmunt and his wife had four

children now living: Marian Halicki, plaintiff Jagoda Trzop, plaintiff Maria

Barbara Horoszko, and defendant Anna Hudson.

¶6 After the death of both Zygmunt and his wife, the declaration provided

that the trustees shall distribute the trust as follows to:

(1) defendant Anna Hudson, their daughter, the entire real property at

602 East Council Trail;

(2) Marian Hadlicki, their son, $25,000;

(3) Jadwiga Halicki, their daughter-in-law, $15,000;

(4) Paul Halicki, their grandson, $20,000;

(5) Michael Halicki, their grandson, $15,000;

(6) Matthew Halicki, their grandson, $15,000;

(7) plaintiff Jadgoda Trzop, their daughter, $20,000;

(8) plaintiff Brian Trzop, their grandson, $20,000;

(9) plaintiff Jessica Trzop, their granddaughter, $10,000;

(10) Maximillian Emil Hudson, their grandson, $20,000;

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(11) plaintiff Maria Barbara Horoszko, $2,000 (whom the declaration

states "has already received three real properties in Poland, four cars, and

a lot of money which [Zygmunt and his wife] sent to Poland"); and

(12) Marek Frackiewicz, $5,000.

Thus, the total distribution to the four plaintiffs in the initial declaration was

$52,000.

¶7 The declaration described the trustors' powers, including the power to

amend. The document provides their power to amend, in full as:

"3.1 POWER TO AMEND: During the joint lifetime of the trustors,

this trust may be amended in whole or in part by an instrument in writing,

signed by both trustors, and delivered to the trustees. After the death of

the first trustor to die, the surviving trustor may amend the trust, in whole

or in part, by an instrument in writing, signed and delivered to the

trustees. After both of the trustors cease to act as the trustee, no

amendment may alter the trustees' duties or discretion without the

trustees' written consent."

¶8 The declaration also contained the following "no contest clause," which

provides in full:

"NO CONTEST CLAUSE: If any beneficiary, other than a trustor,

shall in any manner, directly or indirectly, attempt to cancel or oppose the

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validity of this agreement, including any amendments thereto, or

commences or prosecutes any legal proceedings to set aside this

agreement, then in such event such beneficiary shall forfeit his or her

share, cause to have any right or interest in the trust property, and shall be

deemed to have predeceased the trustors." 1

¶9 The declaration was signed by both Zygmunt and his wife, as both

trustors and trusetees, and it states that they both "read the foregoing declaration

of trust" and that it "correctly states the terms and conditions under which the

trust estate is to be held, managed and distributed by the trustees."

¶ 10 II. Amendment

¶ 11 On February 6, 2014, Zygmunt signed a document entitled "Amendment and

Restatement of the Halicki Family Trust." The amendment stated that his wife

had died and that he was now the sole trustor and the sole trustee.

¶ 12 The amendment stated that it eliminated the prior beneficiary paragraph and

substituted instead the following:

"Upon the death of the survivor of [Zygmunt and his wife], the

trustee(s) shall distribute the entire HALICKI FAMILY TRUST equally

to my daughter, ANNA HUDSON, and my son MARION HALICKI."

1 Neither the parties nor the intervenor raise an argument on appeal concerning the no-contest clause. 5 No. 1-15-0419

The original declaration spelled the son's name as "Marian," whereas the

amendment spells it as "Marion." In this opinion, we will use the original

"Marian."

¶ 13 Even to the untrained eye, the signature of Zygmunt on the 2014

amendment appears shaky, as compared to his signature on the 2007

declaration. After his signature on the 2014 document appears the following

paragraph:

"The Sole Trustor and Sole Trustee, [Zygmunt], signed this

AMENDMENT AND RESTATEMENT OF THE HALICKI FAMILY

TRUST, in our presence on the date it bears. Immediately thereafter and

in his presence and in the presence of each other, and in the presence of

the Notary Public, we signed our names as witnesses. We certify that we

believe [Zygmunt] understood what and why he was signing the

document and to be of sound mind and memory at the time of the

signing."

¶ 14 This paragraph is followed by the signatures and addresses of three

witnesses: Marc Johnson, Mary T. Mueller and Lukas Stasiczak. The

document states that it was prepared by attorney Richard N. Mueller, and it

does not indicate whether he is related to witness Mary T. Mueller who shares

the same last name. The amendment does not indicate whether the witnesses

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are employed by or related to the preparing attorney, who was also the notary

public who notarized the document.

¶ 15 III. The Complaint

¶ 16 On March 31, 2014, a little over a month after the amendment was

signed, plaintiffs filed a complaint which alleged the following:

¶ 17 Plaintiffs are the children of Zygmut and his wife Jadwiga, who died on

August 16, 2013. Zygmunt is 92 years old and in poor health. He is believed to

be seriously ill and has been losing weight rapidly. He cannot be alone and

cannot care for himself. Since December 2013, he has resided with defendant

Hudson, upon whom he is totally dependent for his daily needs and medical

care.

¶ 18 The principal and sole asset of the trust at this time is believed to be the

real property on East Council Trail in Mount Prospect, Illinois, since Hudson

has dissipated all the cash assets after their mother's death. Hudson hired an

attorney, who had a long-standing relationship with Hudson but no prior

relationship with the Halicki family, to draft an trust amendment for Zygmunt

to sign which bequeathed all the trust's assets to her and another relative.

¶ 19 Zygmunt fears displeasing defendant Hudson, who has isolated him from

the rest of the family, despite plaintiff Jagoda Trzop's offer to share his care.

Zygmunt was not advised by Hudson's personal attorney to seek independent

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counsel. Hudson is the designated agent under durable powers of attorney for

property and health care for Zygmunt and, as a fiduciary, owed the highest

standard of care.

¶ 20 The complaint alleged counts of (I) undue influence, (II) tortious

interference with inheritance expectancy, (III) fiduciary fraud, and (IV)

declaration of constructive trust. Plaintiffs asked for a declaration that the

amendment is void, for damages and attorney fees, and for the appointment of a

successor trustee other than Hudson.

¶ 21 IV. Hudson's Answer

¶ 22 On May 7, 2014, defendant Hudson filed her answer in which she

asserted that Zygmunt was mentally competent. She agreed with plaintiffs that

the sole asset left in the trust was the Council Trail property and that Mueller,

who drew up the amendment, was "her attorney." The answer further alleged

that her attorney "sensed that a Trust Contest may result from [Zygmunt's]

decision to disinherit two of his children and several of his grandchildren. A

Polish interpreter was hired and the complete trust execution was videotaped to

preserve [Zygmunt's] peace of mind and voluntary action at the time of the

Trust Amendment execution. Three witnesses (although not required by law)

were present at the execution of the Amendment and each attested that they

believed that [Zygmunt] understood what and why he was signing the

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documents and that he was of sound mind and memory at the time of the

signing."

¶ 23 V. Discovery and Motions

¶ 24 Defendant Hudson moved promptly to proceed with discovery, filing a

motion on the same day as her answer for court approval to take an evidence

deposition of Zygmunt.

¶ 25 On May 12, 2004, five days after the filing of defendant's answer,

plaintiffs moved to disqualify Richard Mueller as attorney for defendant

Hudson. Mueller had prepared and notarized the trust amendment which was

the subject of the complaint. In support of their motion, plaintiffs submitted the

affidavit of their attorney, E. William Mahoney, Jr., who swore that "[m]ore

than a decade ago, [h]e personally recommended" attorney Mueller to

defendant Hudson to represent Hudson on a matrimonial matter which Mueller

undertook. Mahoney also swore that Zygmunt "does not read English and

speaks very little English. He requires a Polish interpreter for communications.

Hudson speaks Polish and English fluently." On May 29, 2014, the trial court

granted the motion to disqualify.

¶ 26 On June 10, 2014, plaintiffs filed their first notice to produce documents

on defendant Hudson. In an undated order, the trial court ordered the taking of

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Zygmunt's deposition on or before June 30, 2014, and ordered defendant to

respond to plaintiff's first notice to produce on or before June 19, 2015.

¶ 27 On June 26, 2014, plaintiffs filed their second notice to produce on

defendant Hudson. On July 10, 2014, defendant Hudson filed a notice of

completeness that the documents that she produced were all the documents

responsive to plaintiffs' first and second notices to produce.

¶ 28 On July 10, 2014, plaintiffs filed a motion for a visitation order allowing

plaintiffs to visit Zygmunt. The motion claimed that defendant Hudson had

made visitation impossible since the beginning of the suit. Plaintiffs also filed a

motion to revoke and terminate defendant Hudson's powers of attorney, and a

petition for rule to show cause as to why Hudson should not be held in

contempt for failing to produce all responsive documents.

¶ 29 On July 10, 2014, the trial court granted Zygmunt leave to file a petition

to intervene by July 17, 2014. On July 17, Zygmunt filed the petition to

intervene and attached to his petition a motion for summary judgment on all

counts of plaintiffs' complaint against defendant Hudson. Zygmunt asserted a

number of grounds, including that plaintiffs lacked standing.

¶ 30 On July 15, 2014, plaintiffs filed responses to defendant's first notice to

produce and, on July 21, 2014, plaintiffs filed a notice of subpoenas for

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testimony on attorneys Richard Mueller, who prepared the trust amendment at

issue, and Maria J. Kaczmarczyk. 2

¶ 31 On August 7, 2014, the trial court granted Zygmunt's petition to

intervene. The trial court also gave defendant and intervenor Zygmunt 28 days,

or until September 4, 2014, to respond to plaintiffs' petition to revoke defendant

Hudson's powers of attorney, and gave plaintiff 28 days, or until October 3,

2014, to reply.

¶ 32 VI. Intervenor's Motion for Summary Judgment

¶ 33 On August 12, 2014, intervenor Zygmunt again filed a motion for

summary judgment on all counts against defendant Hudson; and, on the same

day, plaintiffs filed notices to take the depositions of both Zygmunt and

defendant Hudson and a third notice to produce to Hudson. The trial court

entered an order setting a briefing schedule on Zygmunt's summary judgment

motion, with plaintiffs given until October 16, 2014, to respond and defendant

and intervenor Zygmunt given until October 30, 2014, to reply. Plaintiffs were

also permitted to take the depositions of intervenor Zygmunt and attorney

Richard Mueller, and all other depositions were "denied" until further order of

the court.

2 Zygmunt later stated at his deposition that attorney Maria Kaczmarczyk had prepared the original trust declaration in 2007. 11 No. 1-15-0419

¶ 34 On September 3, 2014, plaintiffs moved for entry of an order allowing

plaintiffs to have a professional mental and physical evaluation of intervenor

Zygmunt pursuant to Illinois Supreme Court Rule 215 (eff. Mar. 28, 2011). 3

¶ 35 VII. Intervenor's Motion to Dismiss

¶ 36 Although there was a pending motion for summary judgment with a set

briefing schedule, on September 8, 2014, Zygmunt filed a combined motion to

dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735

ILCS 5/2-619.1 (West 2014)).4

¶ 37 Pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)),

Zygmunt argued that plaintiffs' complaint was insufficient to state a cause of

action because they failed to allege a vested legal right, interest or expectancy

in the Halicki Family Trust, where the sole primary beneficiary of the trust is

still alive and may consume the trust during his lifetime.

3 Illinois Supreme Court Rule 215 provides in relevant part: "In any action in which the physical or mental condition of a party or of a person in the party's custody or legal control is in controversy, the court, upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved." Ill. S. Ct. R. 215(a) (eff. Mar. 28, 2011). 4 Section 2-619.1 permitted the filing of a combined motion, allowing the filing of a motion seeking relief under both sections 2-615 and 2-619 (735 ILCS 5/2-615, 2-619 (West 2014), such as the intervenor filed. 735 ILCS 5/2-619.1 (West 2014). 12 No. 1-15-0419

¶ 38 Pursuant to section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2014)),

Zygmunt argued that, without a vested interest in the trust, plaintiffs lack

standing and cited in support the 2009 case of In re Estate of Henry,

(2009).

¶ 39 On September 24, 2014, plaintiffs moved to stay the briefing of the

summary judgment motion to allow the taking of two additional depositions,

namely, attorney Maria Kaczmarczk and defendant Hudson. Defendant Hudson

filed a response opposing the request for a stay.

¶ 40 VIII. Zygmunt's Deposition

¶ 41 On September 30, 2014, plaintiffs took the discovery deposition of

intervenor Zygmunt who answered through an interpreter. Zygmunt stated that

he resided with his daughter, defendant Hudson, but he did not know the street

number or phone number of the house. He also stated that he had six

grandchildren when he had eight. In preparing for the deposition, he met with

his attorney and defendant Hudson "sometimes" acted as a translator for them.

After being handed a document to read, Zygmunt replied that he had difficulty

seeing and that he "need[ed] someone to read documents to [him] because [he]

won't be able to see anything." When asked if he relied on defendant Hudson to

read documents to him, he replied: "Yes. She can help me. Nobody else can."

13 No. 1-15-0419

He relied on her to read documents to him instead of using glasses or a

magnifier.

¶ 42 Zygmunt stated that Maria Kaczmarczyk was the attorney who prepared

the original 2007 trust document. He explained that, when his wife was alive,

she was "more competent" in financial matters and he relied on his wife to

direct the attorney who prepared the trust. All communications among himself,

his wife and the attorney were in Polish. Zygmunt stated: "The two daughters,

they were afraid of my wife because my wife was tough and decided–and now

they are doing whatever they want with me." When the questioner stated,

"[a]nd after you did the trust amendment you disallowed any future gift or

bequest to 10 of those 12 people" or beneficiaries, Zygmunt responded: "10

people? What happened to them?"

¶ 43 When asked why he changed the trust, Zygmunt stated that his assets

would no longer cover "the amounts that were supposed to go to my

grandchildren," because the value of his home had gone down. When asked

whether he understood that his house had value, he replied that he did not know

how long his daughter would take care of him, and that he might need the

money for his own care. He then stated: "The older daughters want to take

everything right away, and what about me, am I supposed to end up under a

bridge like a bum?" When asked who told him that his daughters were trying to

14 No. 1-15-0419

take money from him, Zygmunt replied: "Well, they filed a cause against me. I

know myself. What kind of question is this?" Zygmunt stated that he changed

his will to make defendant Hudson and his son Marian his sole beneficiaries

because Hudson had been taking care of him while the other daughters had

done nothing, and his son Marian in Texas was always good to him and his

wife.

¶ 44 Zygmunt stated that he never met with attorney Mueller who prepared

the amendment. He told Hudson that he wanted to make the change and she

recommended the attorney and paid for him. Zygmunt did recall meeting with

Mueller to sign the amendment. Zygmunt uses a wheelchair outside the home,

and a walker in the home, and he does not leave the house unaccompanied.

¶ 45 IX. Plaintiffs' Response to Intervenor's Motion to Dismiss

¶ 46 On October 1, 2014, the trial court ordered plaintiffs to withdraw their

motion to terminate defendant Hudson's powers of attorney, and the court set a

briefing schedule on intervenor Zygmunt's combined motion to dismiss. It also

vacated the October 16, 2014, due date for plaintiffs' brief in response to

intervenor Zygmunt's summary judgment motion. Lastly, it stated that

plaintiffs' motion for a Rule 215 examination of Zygmunt was "entered and

continued generally."

15 No. 1-15-0419

¶ 47 In their response to the combined motion to dismiss, plaintiffs raised

several procedural issues before arguing the merits. First, plaintiffs argued that

defendant Hudson had waived these issues as a matter of law, and that

intervenor Zygmunt should not be allowed to raise them on her behalf now.

Plaintiffs argued that, by filing an answer without asserting affirmative defenses

or a section 2-619 motion to dismiss, defendant Hudson had waived the issue of

standing.

¶ 48 Second, plaintiffs argued that intervenor Zygmunt lacked standing to

dismiss the complaint's counts which were tort counts directed against

defendant Hudson.

¶ 49 Third, plaintiffs argued that the intervenor's section 2-619.1 motion was

untimely because it was filed after he filed the still-pending summary judgment

motion. By filing the summary judgment motion, he waived the section 2-

619.1 issues.

¶ 50 On the merits, plaintiffs cited In re Estate of Michalak,

(2010), a case from this court subsequent to the 2009 Henry case which

specifically distinguished Henry. Michalak,

(distinguishing Henry,

).

¶ 51 On November 18, 2014, the trial court set the combined section 2-619.1

motion for argument on December 22, 2014, and "[a]ll other motions were

16 No. 1-15-0419

continued generally." That included plaintiffs' motion for a Rule 215

examination of Zygmunt. The order also stated: "All parties shall be prepared

to discuss Chase v. Wemple[,]

." That is a reference to In re

Estate of Henry,

(2009). The full name of the case is In re

Estate of Henry (JP Morgan Chase Bank N.A. v. Wemple).

¶ 52 X. First Order to Dismiss

¶ 53 On December 30, 2014, the trial court issued a written order which stated in

full:

"This cause having come to be heard on Zygmunt Halicki's motions to

dismiss, all parties present and the court having been advised in the

premises, it is hereby ordered:

1. The case is dismissed on all counts with prejudice

2. This order shall not be considered the final order in this cause.

Plaintiffs shall have until January 15th to draft this final order. Proposed

drafts shall be delivered to the court electronically by Jan. 13th. This

matter is continued to January 15 at 10:00 a.m."

¶ 54 XI. Second Order to Dismiss

¶ 55 On January 15, 2015, the trial court issued a final and written order

dismissing the complaint, which stated in full:

17 No. 1-15-0419

"This cause coming to be heard upon Intervenor Zygmunt Halicki's

Combined Motions to Dismiss pursuant to 735 ILCS 5/2-615 and 735

ILCS 5/2-619 (supplemented by the deposition transcript and Halicki's

affidavit), the issues fully briefed by the parties, arguments of counsel

fully heard, and the Court fully advised in the premises, the Court finds:

1. On September 28, 2007, Intervenor Zygmunt Halicki and his wife,

Jadwiga Halicki, since deceased, executed a trust known as the Halicki

Family Trust, in which the husband and wife were co-trustees and only

beneficiaries, with the co-trustees retaining their right to amend and

revoke the trust; upon the death of Jadwiga Halicki, Intervenor Z. Halicki

became the sole trustee and beneficiary of the trust, retaining the right to

amend or revoke the trust;

2. On February 6, 2014, trustee Halicki executed his right to amend

the Halicki Family Trust, while remaining its sole beneficiary;

3. The Plaintiffs are not beneficiaries under the amended Halicki

Family Trust;

4. The Plaintiffs have demonstrated no justiciable interest to support

their complaint challenging the amended Trust; the Plaintiffs lack

standing as a matter of law; In re Estate of Richard V. Henry,

(2009) is controlling and dispositive to the issue of standing,

18 No. 1-15-0419

while recognizing that no preclusive effect arises from the dismissal of

the complaint for lack of standing; Estate of Richard V. Henry,

(with no standing to challenge the disposition of property

by the surviving trustee and sole beneficiary, 'there is no danger *** that

[the plaintiffs] will be collaterally estopped in their efforts to pursue their

remedies under *** an action contesting the trust')[5];

IT IS HEREBY ORDERED:

A. The Plaintiffs' Complaint to set aside the February 6, 2014,

amendment to the Halicki Family Trust for tortious interference with an

expectancy, fiduciary fraud, declaration of constructive trust, injunction

and other relief is dismissed with prejudice as to all counts for lack of

standing.

B. This is a final and appealable order."

¶ 56 In sum, the trial court ruled that, since plaintiffs are not named as

beneficiaries in the amendment, they lack standing to challenge its validity.

5 The Henry court held that "the legatees must wait until after the death of the testator before they can challenge the testatory's disposition of his property. Consequently, since we hold that *** appellants have no standing to pursue this appeal, there is no danger here that they will be collaterally estopped" later. Henry,

. 19 No. 1-15-0419

¶ 57 XII. Notice of Appeal

¶ 58 The "Notice of Appeal" is file-stamped February 4, 2015, and states that

plaintiffs seek "reversal of the court orders entered by the [trial court] on

December 30, 2014, and January 15, 2015, and seek remand to the Circuit

Court for further proceedings." This appeal follows.

¶ 59 ANALYSIS

¶ 60 On this appeal, plaintiffs ask this court to reverse the trial court's

orders holding that they lack standing and remand to the trial court for further

proceedings. For the following reasons, we reverse and remand.

¶ 61 I. Section 2-619 Dismissal

¶ 62 Although the trial court did not specify whether it was granting the

dismissal motion pursuant to section 2-615 or section 2-619 of the Code (735

ILCS 5/2-615, 2-619 (West 2014)), the trial court dismissed solely based on a

lack of standing. The intervenor had moved concerning lack of standing

pursuant to section 2-619 and, as we discuss in more detail below, Illinois

courts have repeatedly held that a lack of standing is the proper subject of a

section 2-619 motion. Glisson v. City of Marion,

(1999);

see also Reynolds v. Jimmy John's Enterprises, LLC,

("plaintiff's lack of standing is a proper affirmative matter

pursuant to section 2-619(a)(9)"); River Plaza Homeonwer's Ass'n v. Healey,

20 No. 1-15-0419

(2009); Poulet v. H.F.O., L.L.C.,

(2004). "Because lack of standing is an affirmative defense, it must be

raised in a motion to dismiss brought pursuant to section 2-619(a)(9) of the

Code, and not in a section 2-615 motion." Clarke v. Community Unit School

District 303,

.

¶ 63 "A motion to dismiss, pursuant to section 2-619 of the Code, admits the

legal sufficiency of the plaintiffs' complaint, but asserts an affirmative defense

or other matter that avoids or defeats the plaintiffs' claim." DeLuna v.

Burciaga,

(2006); Solaia Technology, LLC v. Specialty

Publishing Co.,

(2006). For a section 2-619 dismissal, our

standard of review is de novo. Solaia Technology,

. De novo

review means that we will perform the same analysis a trial court would

perform. Khan v. BDO Seidman, LLP,

(2011). "Under

the de novo standard of review, this court owes no deference to the trial court."

People v. Williams,

(citing Townsend v. Sears,

Roebuck & Co.,

(2007)). In ruling on a section 2-619

motion to dismiss, the court must interpret the pleadings and supporting

materials in the light most favorable to the nonmoving party. Van Meter v.

Darien Park District,

, 367-68 (2003).

21 No. 1-15-0419

¶ 64 For a motion to be properly brought under section 2-619, the motion (1)

must be filed "within the time for pleading," and (2) must concern one of nine

listed grounds. 735 ILCS 5/2-619(a) (West 2014).

¶ 65 A section 2-619 motion is permitted only on one of the following

grounds:

"(1) That the court does not have jurisdiction of the subject matter of

the action, provided the defect cannot be removed by a transfer of the

case to a court having jurisdiction.

(2) That the plaintiff does not have legal capacity to sue or that the

defendant does not have legal capacity to be sued.

(3) That there is another action pending between the same parties for

the same cause.

(4) That the cause of action is barred by a prior judgment.

(5) That the action was not commenced within the time limited by

law.

(6) That the claim set forth in the plaintiff's pleading has been

released, satisfied of record, or discharged in bankruptcy.

(7) That the claim asserted is unenforceable under the provisions of

the Statute of Frauds.

22 No. 1-15-0419

(8) That the claim asserted against defendant is unenforceable because

of his or her minority or other disability.

(9) That the claim asserted against defendant is barred by other

affirmative matter avoiding the legal effect of or defeating the claim."

735 ILCS 5/2-619(a) (West 2014).

Illinois courts have repeatedly held that a lack of standing qualifies under the

ninth listed ground: an "affirmative matter avoiding the legal effect of or

defeating the claim" (735 ILCS 5/2-619(a)(9) (West 2014)). Glisson v. City of

Marion,

(1999); see also Reynolds v. Jimmy John's

Enterprises, LLC,

("plaintiff's lack of standing

is a proper affirmative matter pursuant to section 2-619(a)(9)"); River Plaza

Homeowner's Ass'n v. Healey,

(2009); Poulet v.

H.F.O., L.L.C.,

(2004). Thus, the subject matter of

the intervenor's section 2-619 motion concerned one of the listed grounds.

¶ 66 II. Timeliness

¶ 67 For a section 2-619 motion to be properly brought, it must not only

concern a listed ground, but it must also be filed "within the time for pleading."

735 ILCS 5/2-619(a) (West 2014). "The purpose of a section 2-619 motion to

dismiss is to dispose of issues of law and easily proved issues of fact at the

outset of litigation." Van Meter v. Darien Park District,

, 367

23 No. 1-15-0419

(2003); Reynolds,

(the purpose of section 2-619

is to "provide litigants with a method of disposing of issues of law and easily

proved issues of fact—relating to the affirmative matter—early in the

litigation" (emphasis in original)).

¶ 68 Lack of standing is an affirmative defense, and the burden of pleading

and proving the defense is on the party asserting it. Lebron v. Gottlieb

Memorial Hospital,

(2010). Our supreme court has held

that "a lack of standing will be forfeited if not raised in a timely manner in the

trial court." Lebron,

. Section 2-619 permits defendants to

raise an "affirmative matter," such as standing, either in a section 2-619 motion

"within the time for pleading" or in their answer as an affirmative defense or in

both a motion and the answer. 735 ILCS 5/2-619(a)(9), (a), (d) (West 2014).

¶ 69 In the case at bar, defendant Hudson did not file a section 2-619 motion

to dismiss within the time for pleading or at any other time, and she did not

plead lack of standing as an affirmative defense in her answer. However, the

trial court dismissed the complaint against her "with prejudice as to all counts

for lack of standing." The question then becomes whether the intervenor,

whose motion the trial court granted, acted in a timely manner.

¶ 70 When interpreting a statute, "we look first and foremost to the language

of the statute itself." People v. Wright,

(citing

24 No. 1-15-0419

People v. Cardamone,

(2009)). "Each word, clause and

sentence of the statute, if possible, must be given reasonable meaning and not

rendered superfluous." People ex rel. Sherman v. Cryns,

(2003).

¶ 71 Section 2-619 states: "Defendant may, within the time for pleading, file a

motion for dismissal of the action or for other appropriate relief upon any of the

following grounds." 735 ILCS 5/2-619(a) (West 2014). In the case at bar,

intervenor was not a "Defendant." The complaint alleges that he was a victim.

Since he was not a defendant, he was not required by the trial court to plead,

and thus the only "time for pleading" was that of the only defendant, and that

time expired when she filed her answer.

¶ 72 Even if we believed that such a literal interpretation, which would

preclude this intervenor from challenging standing, was not within the spirit of

the law, our supreme court has held that the "purpose" of section 2-619 is to

dispose of affirmative matters at the very "outset" of litigation. Van Meter,

; Reynolds,

(the purpose of section

2-619 is to dispose of matters "early in the litigation"). In the case at bar,

discovery on the substantive issues was well under way, and the intervenor had

already filed a motion for summary judgment. Although summary judgment

motions may be brought at any time (735 ILCS 5/2-1005(b) (West 2014)), they

25 No. 1-15-0419

are routinely brought at the close of discovery, because they may be found

premature or untimely if discovery is outstanding. E.g., Williams v. Covenant

Medical Center,

(2000). This court has previously

stated: "It is only when a legally sufficient cause of action has been stated

should the trial court ever entertain a motion for summary judgment which, by

its very nature, almost necessarily assumes that a good and sufficient claim has

been pled." Paul H. Schwendener, Inc. v. Jupiter Electric Co.,

(2005) (citing Janes v. First Federal Savings & Loan Ass'n of Berwyn,

(1974) ("[w]hen, and only when, a legally sufficient cause of

action had been stated should the court have entertained the motions for

summary judgment")). Thus, whether we look to the letter or spirit of the law,

the intervenor's motion under section 2-619 was not timely.

¶ 73 III. The Tort Counts

¶ 74 Even if we were persuaded that the intervenor's motion was timely,

plaintiffs also argued, before the trial court and before this court, that the

intervenor lacked standing to move for dismissal of the tort claims directed

solely against defendant Hudson. Plaintiff argues that, even if the intervenor

had standing to argue against the vacating of the trust amendment which he

signed, that was just one of the remedies which plaintiffs sought. In their four-

count tort complaint against defendant Hudson, plaintiffs also sought monetary

26 No. 1-15-0419

damages. However, the trial court dismissed the entire complaint against

defendant Hudson with prejudice.

¶ 75 Both counts I and IV sought a declaration that the trust amendment was

void. Count I alleged that defendant exercised undue influence in securing the

trust amendment and sought to void the amendment. Similarly, count IV sought

a constructive trust, the voiding of the amendment and the removal of defendant

Hudson as successor trustee. By contrast, counts II and III sought only

monetary damages against defendant Hudson. Count II alleged tortious

interference, and count III alleged fiduciary fraud.

¶ 76 In response, the intervenor argues that he has a legally cognizable interest

in all matters relating to the Halicki Family Trust and that he has standing to

protect his property interest. However, an award of monetary damages against

defendant Hudson will not affect his property interest. Defendant Hudson

argues that plaintiffs' tort claims lack merit, but the issue before us is not the

underlying merit of the claims but only the standing to raise them.

¶ 77 Thus, even if we were persuaded that the intervenor's motion was timely,

we would still find that he lacked standing to move to dismiss the two tort

counts against defendant Hudson.

27 No. 1-15-0419

¶ 78 IV. Plaintiffs' Standing

¶ 79 Lastly, defendant Hudson and intervenor Zygmunt argue that plaintiffs

lack standing because: (1) the beneficiary of an inter vivos trust has no vested

interest and thus plaintiffs had no standing to sue under the original trust

document; and (2) even if plaintiffs had an interest under the original trust

document, they lost that interest under the amendment.

¶ 80 A. Standing Under the Original Trust Document

¶ 81 First, "[w]hile a beneficiary has no interest in a will until the death of the

testator, the beneficiary of a trust has an interest the moment the trust is

created." In re Estate of Ostern,

(citing In re

Estate of Michalak,

(2010)).

¶ 82 In support of their argument that plaintiffs lacked an interest under the

original trust document, defendant and intervenor cite In re Estate of Henry,

(2009). The trial court, in its written order, also relied solely

on the Henry case, stating: "the Plaintiffs lack standing as a matter of law; In re

Estate of Richard V. Henry,

(2009) is controlling and

dispositive to the issue of standing." In the Henry case, the court held that a

caretaker and an executor lacked standing to challenge the court's amendment

of a ward's will since the interests in the ward's property would not vest until

the death of the ward. Henry,

.

28 No. 1-15-0419

¶ 83 However, in Michalak, this court specifically distinguished Henry and

explained why it did not apply to trusts. We explained:

"The principal distinction between a will and a trust is that in the former,

the beneficiary has no interest until the death of the testator, while in the

latter, [the] beneficiary has an interest the moment the trust is created.

Favata v. Favata,

, 982 *** (1979). The fact that a

beneficiary's actual enjoyment of the trust res is contingent upon the

settlor's death does not negate the existence of a present interest in the

beneficiary during the settlor's lifetime. In re Estate of Zukerman,

, 332 *** (1991), citing Farkas v. Williams,

,

425-26 *** (1955) and In re Estate of Petralia,

, 137-38

*** (1965)." Michalak,

.

See also Farkas v. Williams,

(1955) ("[i]mmediately" upon

the creation of an inter vivos revocable trust, the settlor cannot deal with the

property "as if he owned the property absolutely," as he could with a will, but

he must act in accord with the trust's terms or revoke the trust).

¶ 84 After explaining this distinction, we held in Michalak that the

beneficiaries of an inter vivos trust had standing to challenge the validity of an

amendment to that trust, which is the same issue facing us in the case at bar.

Michalak,

. The facts in Michalak are similar to the

29 No. 1-15-0419

facts at bar. In Michalak, the trust was created by an elderly person who spoke

only Polish and who placed her home in the trust, as in the case at bar.

Michalak,

. The beneficiaries in Michalak were her two

neighbors. Michalak,

. After the trust's creation, her

relatives challenged the validity of the trust and obtained a court-ordered

amendment which removed the neighbors as beneficiaries. Michalak,

. The initial issue before the reviewing court was whether the

beneficiaries under the original trust document had standing on appeal to

challenge the amendment which removed them as beneficiaries, which is

similar to the issue here. Michalak,

. The Michalak

court held that they had standing, and we adhere to our precedent. Michalak,

(the neighbors "had an equitable remainder interest,

which vested immediately upon the creation of the trust and, therefore, they

have standing to appeal the circuit court's order").

¶ 85 In her brief to this court, defendant Hudson does not mention or cite the

Michalak case, and thus does not try to distinguish it from the case at bar. The

trial court's written order dismissing the case also makes no mention of this

court's 2010 Michalak case and relies solely on our earlier 2009 Henry case. In

his brief, the intervenor tries to distinguish Michalak on the ground that

30 No. 1-15-0419

Michalak involved an incompetent adult, whereas our case involves a

competent adult.

¶ 86 First, this argument assumes a fact that is in contention. On September 3,

2014, plaintiffs moved for entry of an order allowing plaintiffs to have a

professional mental and physical evaluation performed of intervenor Zygmunt.

The trial court did not rule on their motion before dismissing the case with

prejudice for lack of standing.

¶ 87 Second, the settlor in Michalak was not deemed a disabled adult until

after the creation of the trust, so her disability did not affect the issue of whether

the beneficiaries gained an interest at the moment of the trust's creation.

Michalak,

(the settlor was deemed disabled by

Alzheimer's disease seven months after the creation of the trust), 82 (the trial

court declined to rule on the settlor's capacity at the time of the creation of the

trust).

¶ 88 Third, this argument draws a distinction without a difference. The first

question before us is whether the beneficiaries had an interest from the moment

the trust was created. In Michalak, although a question was raised about

whether the settlor was disabled from the moment that the trust was created, the

beneficiaries under the original document were still deemed to have standing.

Michalak,

(the neighbors "had an equitable remainder

31 No. 1-15-0419

interest, which vested immediately upon the creation of the trust and, therefore,

they have standing"). If a trust document by a possibly disabled adult is enough

to create standing, then certainly a trust document by adults, who, everyone

agrees, were competent when the trust was created, should be enough to confer

standing. Thus, under the Michalak case, plaintiffs had standing under the

original trust document.

¶ 89 B. Standing After the Amendment

¶ 90 Next, the intervenor and defendant argue, in essence, that, even if

plaintiffs had an interest under the original trust document, they lost that interest

under the amendment. However, as we explained above, the Michalak case

stands for the opposite. In addition, this argument is circular. It presumes the

validity of the very amendment which plaintiffs are challenging. Yet the

validity of the amendment has not yet been established; that question goes to

the merits of the action, which the trial court has yet to reach. Thus, we remand

to give the trial court an opportunity to reach that question.

¶ 91 CONCLUSION

¶ 92 For the foregoing reasons, we reverse the trial court's grant of the

intervenor's section 2-619 motion to dismiss for lack of standing and remand for

further proceedings consistent with this opinion. First, the intervenor's motion

was not timely; second, he had no standing to move to dismiss the two tort

32 No. 1-15-0419

counts directed solely against defendant Hudson; and, lastly and most

importantly, plaintiffs had standing to contest the validity of the trust

amendment which removed them as beneficiaries. Thus, the matter is remanded

for further proceedings on all four counts.

¶ 93 Reversed and remanded.

33