Opinion
No. 1-20-0489
05-25-2021
DEBRA SAUER, Plaintiff-Appellant, v. SEDELLE JEAN SAUER TRUST and SHARON SAUER, Individually and as Trustee, Defendants-Appellees.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County No. 16-L-11799 The Honorable Alison C. Conlon, Judge Presiding. PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Justices Pucinski and Cobbs concurred in the judgment.
ORDER
¶ 1 Held: Trial court's entry of summary judgment in favor of defendants is affirmed on plaintiff's action to remove trustee, recover damages for tortious interference with expectancy, and enforce promissory note. ¶ 2 The plaintiff, Debra Sauer, appeals the trial court's entry of summary judgment in favor of the defendants, the SeDelle Jean Sauer Trust (Trust) and Sharon Sauer, Individually and as Trustee of the Trust (defendant), on all three counts of the plaintiff's second amended complaint, which sought the removal of the defendant as trustee of the Trust, damages for the defendant's alleged tortious interference with the plaintiff's expectancy, and the enforcement of a promissory note against the assets of the Trust. The plaintiff also appeals the trial court's denial of her cross-motion for partial summary judgment, which sought enforcement of the promissory note. For the reasons that follow, we affirm the judgment of the trial court.
¶ 3 I. BACKGROUND
¶ 4 The following facts are disclosed by the summary judgment record. SeDelle Jean Sauer is the mother of both the plaintiff and the defendant. During her lifetime, SeDelle and her husband, Charles J. Sauer, owned a three-unit residential building at 4518 North St. Louis Avenue in Chicago (St. Louis Avenue building). On September 10, 1987, SeDelle and Charles signed a promissory note, stating that the plaintiff had loaned them a total of $25,000 through two payments, in 1986 and 1987, and that the sum was to be repaid to her with 12% interest per year, with such repayments to be made "after all 3 apartments are complete and rented." The promissory note then stated that if both SeDelle and Charles died before this debt is fully paid, the proceeds from the St. Louis Avenue building must go first to pay off the mortgage balance, and the remainder was to go to paying the loan balance to the plaintiff. Finally, the promissory note stated that if SeDelle and Charles refinanced or sold the building, then they would repay the plaintiff the loan at that time. ¶ 5 Charles Sauer died in 2012. Following his death, on September 19, 2012, SeDelle established the Trust, which was a self-settled trust of which she was both trustee and beneficiary. The trust agreement named SeDelle's three children (including both the plaintiff and the defendant) as successor beneficiaries, and it provided that the defendant should be the successor trustee upon SeDelle's resignation, death, or inability to manage her affairs. On February 8, 2013, SeDelle made a first amendment to the trust agreement. This amendment made numerous changes to the original trust agreement, including a provision requiring that a separate trust be created for the plaintiff's benefit and changing the successor trustee from the defendant to SeDelle's brother. On April 23, 2016, SeDelle made a second amendment to the trust agreement, the effect of which was to revoke the first amendment in its entirety. SeDelle passed away on June 29, 2016. On July 26, 2016, the defendant executed a document naming herself as successor trustee of the Trust. ¶ 6 On December 2, 2016, the plaintiff, then pro se, filed a one-count complaint in which she alleged that SeDelle had lacked the capacity to execute the second amendment to the trust agreement and that its execution had been the product of undue influence by the defendant. Her prayer for relief was that the second amendment be nullified and that the first amendment be reinstated as the governing document of the Trust. ¶ 7 Also in late 2016, a separate eviction action was filed by the Trust to evict the plaintiff from her apartment on the second floor of the St. Louis Avenue building, where she had previously been living rent-free. A final judgment for possession was entered in that case in favor of the Trust and against the plaintiff on January 18, 2017. The Sheriff evicted the plaintiff on March 13, 2017, but the defendant allegedly caused the utilities to be turned off in February 2017. ¶ 8 The plaintiff then obtained counsel, who filed a first amended compliant on her behalf on August 7, 2017. The defendant filed an answer, and the court ordered the parties to initiate discovery on September 28, 2017. The case was continued several times for status on discovery. On multiple occasions, the trial court granted motions by the plaintiff to receive disbursements of assets of the Trust. For example, on January 10, 2018, the court granted an emergency motion allowing an interim distribution of $10,000 to the plaintiff for the payment of back rent on the apartment where she had been staying since her eviction from the St. Louis Avenue building. ¶ 9 On March 12, 2018, the plaintiff filed the operative second amended complaint. Count I sought removal of the defendant as trustee of the Trust for cause, specifically for the defendant's alleged failure to file an annual accounting, her failure to comply with the requirement to create a separate trust for the plaintiff's benefit, and her failure to make disbursements to the plaintiff. Count II alleged that the defendant had engaged in tortious interference with the plaintiff's expectancy. Count III sought enforcement of the September 10, 1987, promissory note in the amount of $116,500 plus continually-accruing interest. ¶ 10 On August 3, 2018, the plaintiff filed a partial motion for summary judgment on count III of her second amended complaint. She alleged that no genuine issue of material fact existed about the fact that she was owed in excess of $116,500 on the promissory note. Her motion argued that the note became due "after all 3 apartments are complete and rented" and that construction on the units had remained "incomplete" through November 2017 when the building was sold. The plaintiff supported her motion with her own affidavit, in which she stated that she lived in the second-floor apartment from 2012 through 2017, that the entire time she lived there it was unfinished and in stages of being remodeled, and that repairs and renovations were not completed. ¶ 11 Also attached to the plaintiff's motion was the affidavit of Don Marcus, in which he averred that he was the realtor originally employed from October 1, 2016, through June 27, 2017, to list the St. Louis Avenue building for sale. Marcus stated in his affidavit that he personally observed that the second-floor apartment was 10% to 15% unfinished at the time he listed it, in its last stages of being remodeled, and that repairs and renovations were not completed. Finally, the plaintiff attached to her motion portions of a deposition given by Mareva Lindo on June 29, 2018, in a separate federal lawsuit, Debra Sauer v. Methodist Hospital, et al., 14-cv-7191 (N.D. Ill.). Lindo is the defendant's daughter. Lindo testified in that deposition that she had lived in unit one of the St. Louis Avenue building from approximately 1991 to 2006, that for most of the time she lived there the family had been doing work on the second-floor apartment, and that defendant had finished that work in the year after SeDelle passed away. ¶ 12 The plaintiff supplemented her motion by filing the affidavit of Dr. Michael McNett, who averred that he had rented a bedroom on the second floor of the St. Louis Avenue building from September 2000 to July 2003. His affidavit stated that the floors, the kitchen cabinets, counter, and appliances, the doors, and the lights were in a state of disrepair at the time he resided there, that the apartment was unfinished, in the mid-stages of being remodeled, and that repairs and renovations were not completed. ¶ 13 On May 30, 2019, the defendant filed a motion for summary judgment on all three counts of the second amended complaint. As to count III, the defendant asserted that the plaintiff's claim was barred by the 10-year statute of limitation to enforce a promissory note. The defendant contended that, under the terms of the promissory note, the plaintiff's right to payments began when the apartments are "complete and rented." The defendant argued that the word "complete" should be interpreted to mean that "the apartment is in a state in which it is legally and commercially able to be rented," and that "completion" was a condition precedent to an apartment being "rented." She contended that the undisputed evidence was that, by 2000 at the latest, all three apartments were complete and rented. ¶ 14 In support of this assertion, she pointed to the statement in Dr. McNett's affidavit that he had begun renting a bedroom on the second floor in September 2000. The defendant also attached her own affidavit averring that she had moved into the St. Louis Avenue building in 1991, and she and her husband had rented the first and third floors of the building from her parents until December 2005. Her affidavit further stated that sometime between 1991 and 2003, the second-floor apartment had been rented to Dr. Jan Iwata, and after Dr. Iwata vacated it, the apartment was rented to Dr. McNett. After Dr. McNett vacated the apartment in 2003, and SeDelle and Charles rented it to Mark and Janai Axelson, who rented it until December 2005. ¶ 15 The defendant's motion argued that the defendant was entitled to summary judgment on count I, because the plaintiff had no evidence that the defendant had engaged in malfeasance or breached any fiduciary duty. First, the defendant argued that she had provided an accounting of the Trust's assets, and any delay was attributable to the plaintiff's litigiousness regarding the property and the Trust itself. Second, the defendant argued that the first amendment to the trust agreement, which was the operative document governing the Trust, did not require a separate trust to be created for the plaintiff's benefit. Third, the defendant argued that disbursements had been made to the plaintiff, both by court order and voluntarily. Finally, the defendant argued that there was no evidence that the defendant had evicted the plaintiff from her apartment and taken up residence there herself. As to count II, the defendant argued that she was entitled to summary judgment because the plaintiff had no evidence that she was denied her expectancy as a beneficiary of the Trust, that the defendant engaged in any tortious conduct, or that the plaintiff was damaged by any conduct of the defendant. ¶ 16 In response to the defendant's motion for summary judgment, the plaintiff asserted that the statute of limitation on enforcement of the promissory note did not begin to run until the sale of the property in 2017, as the evidence showed that all three apartments were never "completed and rented." Her arguments were largely the same as those made in her motion for partial summary judgment that construction of the apartments was not "complete" until 2017 when the building was sold, and thus her right to repayment under the promissory note had not begun until that time. She also contended that Mark Axelson was the defendant's son and that, although he and his family stayed in the apartment for a time, they did not pay rent. She asserted that Dr. Iwata did not respond to inquiries from plaintiff's counsel regarding her residence in the building but could be compelled to testify at trial and that, for this reason, an issue of fact existed about Dr. Iwata's testimony. ¶ 17 As to count I for removal of the defendant as trustee, the plaintiff argued that the defendant had evicted her from the second floor apartment where she previously had been living rent-free, attempted to oust her prematurely by turning of the utilities at the St. Louis Avenue building, failed to make disbursements to the plaintiff until the trial court ordered her to do so, failed to make an accounting of the Trust's assets until the court ordered her to do so three years after SeDelle's death, and removed SeDelle from life support at the end of her life. The plaintiff made no argument specific to count II for tortious interference with expectancy. ¶ 18 The trial court conducted oral argument on December 23, 2019, and issued a written order on February 11, 2020, granting the defendant's motion for summary judgment and denying the plaintiff's motion for partial summary judgment. As to count III, the trial court found that the issue centered on the parties' divergent interpretations of what the promissory note meant by an apartment being "complete," and whether they had all been complete more than ten years prior to the filing of the action. The trial court resolved this issue by finding that, when the words "complete and rented" are considered in relation to one another and in context, " 'complete is most reasonably interpreted to mean 'habitable,' and rented is most reasonably interpreted to mean 'actually inhabited.' " The court found little common sense in defining "complete" to mean that no work remains to be done on the residence regardless of scope, as such a definition would effectively mean that the condition of completeness would rarely if ever arise. Applying this definition, the trial court found that the undisputed evidence showed that all three apartments were habitable by at least 2000 because they had all been actually rented by then. As the plaintiff's filing of the case in December 2016 was more than ten years after this date, the trial court found that count III was time-barred and that the defendant was entitled to summary judgment. ¶ 19 As to count II for tortious interference with expectancy, the trial court found that the plaintiff had alluded to the defendant's use of undue influence to obtain SeDelle's execution of the second amendment and had accused the defendant of wrongfully removing SeDelle from life support, but the plaintiff had failed to adduce any evidence to support such allegations. ¶ 20 Finally, as to count I for removal of the defendant as trustee, the trial court found no factual basis of a claim of interference with the proper administration of the Trust, particularly since the issues involving the defendant's provision of an accounting and disbursements of the Trust's assets to the plaintiff had been under court supervision in this litigation since just a few months following SeDelle's death. The court found that the governing second amendment to the trust agreement did not require the creation of a separate trust for the plaintiff's benefit, and there was no evidence that the defendant had engaged in wrongful conduct by obtaining the plaintiff's eviction from the St. Louis Avenue building or by the defendant living in the building after that time. The court found that none of the evidence was sufficient to create a genuine issue of material fact supporting the defendant's removal as trustee, and the defendant was entitled to summary judgment on count I. ¶ 21 On February 7, 2020, six weeks after oral argument and one week after the trial court's initially-scheduled ruling date, the plaintiff filed a motion for leave to file a surreply, to which she attached a new affidavit and various documents not previously before the court. The trial court struck the plaintiff's motion as untimely. On February 18, 2020, the plaintiff filed a motion to reconsider the order granting summary judgment in favor of defendant, which the trial court denied on February 24, 2020. On March 9, 2020, the plaintiff filed a notice of appeal.
¶ 22 II. ANALYSIS
¶ 23 This appeal comes to us on the entry of summary judgment, which this reviews de novo. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004). Summary judgment is proper where, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018). A plaintiff opposing a motion for summary judgment does not need to prove her case, but to prevail she must present a factual basis that would arguably entitle her to a judgment. Bruns v. City of Centralia, 2014 IL 116998, ¶ 12. "Summary judgment is to be encouraged in the interest of prompt disposition of lawsuits, but as a drastic measure it should be allowed only when a moving party's right to it is clear and free from doubt." Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989).
¶ 24 A. Promissory Note
¶ 25 In this case, the trial court found no dispute about the fact that payments under the promissory note became due when the three apartments were "complete and rented." On appeal, the plaintiff argues that the trial court erred by interpreting the promissory note to require the commencement of payments only at this time. She argues that a proper interpretation of the promissory note shows that it requires the commencement of payments on the "later" date of (1) all three apartments being complete and rented, or (2) the time at which the building was sold. Thus, she argues, because the sale of the building in 2017 occurred "later" than all three apartments being complete (whenever that may have been), her action to enforce the promissory note was timely filed. In a related argument, she also contends that the promissory note required payments to occur when SeDelle and Charles died, and her action is timely because it was filed within ten years of their deaths. ¶ 26 The plaintiff's argument requires this court to interpret the meaning of the promissory note at issue. A court's objective when interpreting any contract is to determine and give effect to the intentions of the parties at the time they entered into that contract. Guterman Partners Energy, LLC v. Bridgeview Bank Group, 2018 IL App (1st) 172196, ¶ 51. In doing so, the court initially looks to the language of the contract alone and gives that language its plain and ordinary meaning, which is the best indication of what the parties intended. Gallagher v. Lenart, 226 Ill. 2d 208, 233 (2007). Because words derive their meaning from the context in which they are used, the court interprets the contract as a whole and views each part in light of the others. Id. A court must interpret a contract objectively, in accordance with the ordinary expectations of reasonable people, and in a way that avoids absurd results. Suburban Auto Rebuilders, Inc. v. Associated Tile Dealers Warehouse, Inc., 388 Ill. App. 3d 81, 92 (2009). The interpretation of a contract is a question of law that is reviewed de novo. Gallagher, 226 Ill. 2d at 219. ¶ 27 In this case, it is undisputed that the promissory note was handwritten by SeDelle, dated September 10, 1987, signed by SeDelle on behalf of herself and Charles, and states as follows:
"We hereby state that [the plaintiff] (our daughter) has loaned us ($10,000) ten thousand now and also ($15,000) fifteen thousand in Nov. 1986, which will be repaid with 12% interest per year. Payments to be made after all 3 apartments are complete and rented. If both of us should die before this debt is fully paid, proceeds from the 4518 N. St. Louis building must go first to pay off mortgage balance and the remainder to pay the above loan to [the plaintiff]. If we refinance or sell the building then we will pay the [plaintiff's] loan at that time."¶ 28 In support of her argument that the promissory note should be interpreted to require payments to commence on the "later" date of all three apartments being complete and rented or at the time the building was sold, the plaintiff relies on a sentence in the trial court's written order, in which the trial court wrote that no party was disputing "that the promissory note becomes due when the Apartments are 'complete and rented,' or when the Building is sold, whichever is later." The plaintiff asserts that this sentence was a correct interpretation of the promissory note, but the trial court nevertheless erred by failing to find that the note became due in 2017 when the building was sold, which was "later" than any purported date on which the apartments were complete and rented. By contrast, the defendant contends that the plaintiff is seizing on a typographical error in the trial court's order and that a review of the promissory note shows that there was no mention of timing between these two events. ¶ 29 We reject the plaintiff's argument on this point. We conclude that the most reasonable interpretation of the plain language of the promissory note is that, at the time the parties entered into this agreement, they intended that the plaintiff's right to repayment would commence after all three apartments were complete and rented. Only if SeDelle and Charles sold the building without all three apartments ever being complete and rented would the plaintiff's right to repayment first commence on the date of the building's sale. When all three apartments were complete and rented, the plaintiff gained the ability to enforce her right to payment on the note. We find no support in the plain language of the promissory note for the proposition that her right to enforce the note began only on the "later" of these two time periods. ¶ 30 A cause of action accrues at the time when a lawsuit first may be maintained thereon, and a plaintiff cannot delay the running of the statute of limitations by postponing the time of demanding payment from the proper party. Luminall Paints, Inc. v. La Salle National Bank, 220 Ill. App. 3d 796, 801-02 (1991). In this case, provided that all three apartments were complete and rented prior to the sale of the building and that the plaintiff did not then receive repayment, her cause of action on the promissory note accrued at that time and the 10-year limitation period started to run. Ill. Rev. Stat. 1987, ch. 110, ¶ 13-206. If the plaintiff waited more than 10 years from the time all three apartments were complete and rented to file suit to enforce the promissory note, such a suit would be time-barred by the statute of limitation. The general rule is that once a statute of limitation has expired, a defendant gains a vested right to invoke its expiration as a defense to a cause of action, and that right cannot be taken away. Doe v. Hastert, 2019 IL App (2d) 180250, ¶ 55. Nothing in the plain language of the promissory note indicates that this rule would not apply here. Once the statute of limitations on the enforcement of the note expired, neither the sale of the building nor the deaths of Charles or SeDelle could have the effect of reviving it thereafter. ¶ 31 Thus, we turn to the plaintiff's next argument on appeal, which is that the second-floor apartment was never "complete and rented" prior to the 2017 sale of the building, and thus her right to enforce payment under the promissory note did not accrue until that time. Her argument has two aspects. First, she contends that the evidence demonstrates a genuine issue of material fact about whether the second-floor apartment was ever actually "rented" during the time that SeDelle owned it. She cites the affidavit of Dr. McNett that he rented only one bedroom in the second-floor unit for $150 per month to cover a tenancy of two nights per week. She also relies on her own affidavit stating that Mark Axelson (whom the plaintiff asserts is the defendant's son) never paid rent to live in the second-floor unit with his family. ¶ 32 It is clear from the record that the second-floor unit was inhabited for large periods of time since 1987, and the plaintiff never strongly pressed the argument in the trial court that it was not "rented" despite its occupancy, so as to cause the trial court to address this question. However, it is nevertheless clear that the plaintiff has failed to show a genuine issue of material fact about whether the second-floor unit was "rented" between 1991 and 2003. Even setting aside the arguments about whether Dr. McNett or the Axelson family rented it, the defendant submitted an affidavit stating that, soon after she and her family began renting the first and third floors of the St. Louis Avenue building in 1991, Charles and SeDelle rented the second-floor apartment to Dr. Jan Iwata. The plaintiff has failed to produce any evidence rebutting this affidavit testimony that Dr. Iwata rented the unit, and, as a consequence, we must accept this fact as being true. ¶ 33 If a party moving for summary judgment supplies facts which, if not contradicted, would entitle such party to a judgment as a matter of law, the opposing party cannot rely on her pleadings alone to raise issues of material fact. Purtill v. Hess, 111 Ill. 2d 229, 240-41 (1986). Thus, facts contained in an affidavit in support of a motion for summary judgment that are not contradicted by a counteraffidavit (or by depositions or admissions) are admitted and must be taken as true for purposes of a motion for summary judgment. Id. at 241. Here, the defendant filed an affidavit stating that, shortly after 1991, the second-floor apartment was rented to Dr. Iwata. The plaintiff has failed to adduce evidence contradicting this statement in the defendant's affidavit, and therefore we must accept it as true for purposes of summary judgment. The plaintiff asserts that Dr. Iwata never responded to numerous inquiries from her counsel to supply an affidavit and that therefore an issue of fact exists about what her testimony would have been. However, it was incumbent upon the plaintiff, if she believed that the testimony of Dr. Iwata was necessary to respond to the motion for summary judgment, to subpoena her and take her deposition. Alternatively, she could have filed an affidavit in conformance with Illinois Supreme Court Rule 191(b) (eff. Jan. 4, 2013) showing why Dr. Iwata's affidavit could not be procured and what the plaintiff believed her testimony would have been, at which point the trial court could have entered an appropriate order. Neither of these things were done. By contrast, a plaintiff cannot defeat a properly supported motion for summary judgment merely by asserting that evidence will be forthcoming in the future. N.W. v. Amalgamated Trust & Savings Bank, Trust No. 4015, 196 Ill. App. 3d 1066, 1076 (1990). ¶ 34 The second aspect of the plaintiff's argument is that the second-floor apartment was never "complete" prior to the building's sale and that the trial court erred by finding that the word "complete" as used in the promissory note meant that that the apartment was "habitable." The plaintiff points out that many people live in substandard housing, and the fact that they do so does not mean that improvements on the conditions of such residences are complete. ¶ 35 In its ruling, the trial court noted that the plaintiff had the defendant had filed cross-motions for summary judgment on the count to enforce the promissory note, the effect of which was to " 'concede the absence of a genuine issue of material fact and invite the court to decide the questions presented as a matter of law.' " Illinois State Bar Association Mutual Insurance Co. v. Frank M. Greenfield & Associates, P.C., 2012 IL App (1st) 110337, ¶ 18. The trial court then went on to interpret the promissory note as follows:
"Here, the sisters have competing definitions of 'complete,' but neither claims there is any ambiguity. This leaves the Court to examine the plain language of the instrument in context. Looking particularly at the term 'complete' in context, including its relationship to the companion requirement of 'rented,' the Court finds that 'complete' is most reasonably interpreted to mean 'habitable,' and rented is most reasonably interpreted to mean 'actually inhabited.' This interpretation makes sense when 'completed' and 'rented' are construed together, which they must be under canons of contract interpretation. [Citation.] It also comports with the 'ordinary expectations of reasonable people,' [citation]; in other words, it makes common sense. Rarely does any dweller consider a residence 'finished'; there is always something to do. By contrast, there is little common sense in defining 'complete' as having no remaining work to be done, no matter the scope. As a practical matter, if this definition applied, very few people could claim to live in a
'completed' unit. As a legal matter, this definition would lead to absurd results where the condition of completeness would rarely if ever arise. In the context of this instrument, Debra's interpretation is not reasonable. Moreover, there is support for the court's interpretation in the case law. See, e.g., Pritzker v. Drake Tower Apartments, 283 Ill. App. 3d 587, 593 (1996) (holding that the date on which work was completed during a renovation was the date on which the occupant moved into the unit)."¶ 36 We agree with the trial court's analysis on this point and conclude that it properly interpreted the word "complete" as that term is used in the promissory note. Because no genuine issue of material fact exists about the fact that all three apartments were habitable and occupied prior to 2008, we find that no genuine issue of material fact exists about whether the apartments were "complete" more than 10 years prior to the date in 2018 when the plaintiff filed count III of her second amended complaint to enforce the promissory note. Furthermore, as the plaintiff has demonstrated no genuine issue of material fact about whether the apartments were also "rented" prior to that time, we find the plaintiff's action to enforce the promissory note was filed after the expiration of the 10-year statute of limitation. For this reason, we affirm the trial court's granting of summary judgment in favor of the defendant on count III.
In her reply brief, the plaintiff cites the defendant's testimony in a deposition in a separate federal court case that the market rental value of the second-floor apartment was $1,500 per month as of 2017.
¶ 37 B. Removal of Trustee
¶ 38 The plaintiff next argues that the trial court erred by granting summary judgment in favor of the defendant on count I for removal of defendant as trustee of the Trust. She contends that a genuine issue of material fact exists about whether the defendant mismanaged the Trust. ¶ 39 A court of equity has the power to remove a trustee for breach of trust, misconduct, or disregard of fiduciary duties. Laubner v. JP Morgan Chase Bank, N.A., 386 Ill. App. 3d 457, 467 (2008). Removal of a trustee is an "extreme remedy," and neither the court nor any party should lightly disregard a settlor's choice of trustee. Id. Not every instance of mistake or neglect by a trustee requires removal. Id. A trustee should be removed only if the trustee endangers the trust fund and removal is clearly necessary to save the trust. Id. ¶ 40 In support of her argument, the plaintiff cites to the fact that, under the first amendment to the trust agreement, the successor trustee was to be SeDelle's brother, not defendant. The plaintiff alleges that there is a genuine issue of material fact about whether SeDelle was in her right mind when she executed the second amendment to the trust agreement, and therefore she asserts that the defendant is not the "legitimate" trustee. However, while the plaintiff alludes to SeDelle's execution of the second amendment being the product of undue influence by the defendant, no factual allegations of undue influence are actually pled in the second amended complaint and, more significantly, the plaintiff has produced no evidence of it sufficient to show a genuine issue of material fact. ¶ 41 The plaintiff also cites to the deposition testimony of the defendant's daughter given in a separate federal lawsuit that, at the end of SeDelle's life, her health deteriorated to the point where she was being kept alive only by machines, from which the family eventually decided to remove her when it appeared she would never recover. The plaintiff contends that this testimony raises a genuine issue of material fact as to the propriety of the second amendment of the trust agreement to make the defendant trustee and of the defendant's improper administering of the Trust. The testimony of the defendant's daughter does not in any way support the notion that there was anything wrongful about the decision to remove SeDelle from life support, and we see no evidence of how this would require removal of the defendant as trustee of the Trust. ¶ 42 The plaintiff also alleges that the defendant wrongfully caused the plaintiff to be evicted from the second-floor apartment of the St. Louis Avenue building, including by shutting off the utilities in the winter before the sheriff had executed the order of eviction, and that the defendant then unjustly enriched herself by moving into the St. Louis Avenue building and living there rent-free herself. There is no evidence in the record indicating that the defendant ever moved into the St. Louis Avenue building or lived there without paying rent following the plaintiff's eviction. Further, the only evidence involving the shutting off of the utilities cited to by the plaintiff in her brief were exhibits to her motion for leave to file a surreply, which was stricken by the trial court for being untimely filed. As the scope of appellate review of summary judgment is limited to the record as it existed when the court ruled on the summary judgment motion, the plaintiff cannot rely on documents not properly then before the trial court to argue in this court that an issue of fact existed. Urban Sites of Chicago, LLC v. Crown Castle USA, 2012 IL App (1st) 111880, ¶ 42. ¶ 43 Finally, the plaintiff alleges that the defendant mismanaged the Trust by failing to make disbursements to the plaintiff until the court ordered it, and by not making the accounting required by the trust agreement until the court ordered it nearly three years after SeDelle's death. However, we agree with the trial court that, despite some delay, there is no evidence in the record that the defendant failed to provide sufficient disbursements or to properly account for the Trust's assets. The plaintiff has shown no evidence of mismanagement of the Trust sufficient to justify the "extreme remedy" of removing the trustee, particularly where the defendant's administration of the Trust had become a subject of court supervision in this case within five months of SeDelle's death. The trial court did not err in granting summary judgment on count I.
¶ 44 C. Tortious Interference with Expectancy
¶ 45 In her brief, the plaintiff makes no argument specific to the legal theory of tortious interference with expectancy, as pled in count II of her second amended complaint. Rather, she commingles her arguments on counts I and II and argues that summary judgment was wrongfully entered on count II for reasons involving defendant's alleged mismanagement of the Trust. ¶ 46 Proving a claim for tortious interference with expectancy requires a plaintiff to establish (1) the existence of an expectancy, (2) the defendant's intentional interference therewith, (3) tortious conduct such as undue influence, fraud, or duress, (4) a reasonable certainty that the expectancy would have been realized but for the interference, and (5) damages. Cleland v. Cleland, 2018 IL App (2d) 170949, ¶ 40. As discussed above, while the plaintiff alludes to SeDelle's execution of the second amended complaint being the product of undue influence by the defendant, the plaintiff has produced no evidence of it that would show a genuine issue of material fact. We find that none of the conduct cited by the plaintiff as being mismanagement of the Trust would support a cause of action for tortious interference with expectancy. As such, the trial court properly granted summary judgment on count II.
¶ 47 D. Time of Granting Summary Judgment
¶ 48 As to both counts I and II, the plaintiff argues that the trial court erred by granting summary judgment before discovery had closed. We reject this argument. The record shows that the defendant's motion for summary judgment was filed on May 30, 2019. This was one year and eight months after the trial court had first entered an order requiring the parties to initiate discovery, on September 28, 2017. It was also nine months after the plaintiff had filed her own motion for partial summary judgment as to count III. The record contains no indication that the plaintiff timely objected to proceeding on the defendant's motion or informed the trial court that she required additional discovery in order to respond to it. The only objection appears to have been made six weeks after oral argument on the motions, when the plaintiff filed the motion for leave to file a surreply and stated that "no discovery has been conducted on these counts." It is evident from this statement and from the record as a whole that the plaintiff failed to exercise any diligence in obtaining discovery during the time that she was given to do so by the trial court. We therefore reject any argument that she was not given an adequate opportunity to obtain the evidence needed to support her claims prior to the entry of summary judgment.
¶ 49 III. CONCLUSION
¶ 50 For the reasons set forth above, we affirm the trial court's granting of summary judgment in favor of the defendants and against the plaintiff on all three counts of the second amended complaint. ¶ 51 Affirmed.