DAVIS, Judge.
Jeanne Saunders is the daughter of Thomas F. O'Connor and the stepdaughter of Claudine B. O'Connor. She and her husband, George Saunders, challenge the trial court's order granting M. Ashley Butler, Ph.D., as guardian of Claudine B. O'Connor, a temporary injunction in the declaratory action filed by Ms. Butler against the Saunderses and several other named defendants.
Thomas and Claudine O'Connor married in 1998.
In 2005, the Scolaro law firm prepared additional revocable trusts for both Mr. and Mrs. O'Connor, individually. These trusts, however, did not revoke either Mrs. O'Connor's 1984 trust or Mr. O'Connor's 1998 trust. Rather, these new trusts were in addition to the original trusts. These trusts were amended in 2008 and are designated as the 2008 Trusts.
After twelve years of marriage, a petition for incapacity was filed against Mrs. O'Connor by the Department of Children and Family Services. On March 23, 2011, a hearing was held on the Department's motion for the appointment of an emergency temporary guardian for Mrs. O'Connor, at which the trial court took testimony regarding her lack of capacity. At the conclusion of that hearing, the trial court determined that Mrs. O'Connor lacked capacity and appointed Ms. Butler as her temporary guardian. A member of the Scolaro law firm was present in the courtroom for the hearing. Following the hearing, the attorney went to the home of Mr. and Mrs. O'Connor with trust amendments and new wills for the parties to execute. However, after Ms. Butler arrived at the home, these documents were not executed. The newly drafted documents would have altered Mrs. O'Connor's testamentary plan in that the new documents deleted her grandchildren as beneficiaries as well as the charities which had been included in her beneficiaries for many years. Additionally, Mr. O'Connor was added as a substantial beneficiary, and the Scolaro law firm was named as the trustee of Mrs. O'Connor's trust upon her death or incapacity. The proposed trust for Mr. O'Connor was an irrevocable trust, of which the Scolaro law firm would have been named trustee and trust protector.
At the final hearing on Mrs. O'Connor's incapacity, the trial court found that she was incapacitated and thus appointed Ms. Butler as plenary guardian for the wife on April 29, 2011. In the petition seeking the appointment of an emergency temporary guardian for Mrs. O'Connor, the Department alleged that she was "susceptible to being exploited either financially and/or physically" and that "[h]er husband, Thomas O'Connor, was very threatening and tried to keep his wife from speaking with Petitioner."
The Department also filed a petition for incapacity against Mr. O'Connor, resulting in the trial court appointing Ernie C. Lisch as Mr. O'Connor's plenary guardian. In its petition alleging Mr. O'Connor's incapacity, the Department alleged the following:
Upon accepting the appointment as Mrs. O'Connor's guardian, Ms. Butler began to marshal her ward's assets and became concerned as to the whereabouts of certain funds previously owned by Mrs. O'Connor's trust. Specifically, Ms. Butler was unable to account for more than $6 million of assets originally owned by Mrs. O'Connor. Further, based on the information she could gather, Ms. Butler suspected that many of these assets had been transferred to Mr. O'Connor's family members or into accounts held in the name of Mr. O'Connor's 1998 trust. This concern led Ms. Butler to file a complaint for a declaratory decree, asking the trial court to determine who owned these funds titled in the name of Mr. O'Connor's trust but alleged to be the property of Mrs. O'Connor.
After filing the declaratory action, Ms. Butler filed her verified petition seeking a temporary, emergency injunction against Jeanne Saunders, George Saunders, the Scolaro law firm, individual members of the Scolaro law firm, and Ernie C. Lisch. By the petition, Ms. Butler asked that an ex parte order be entered enjoining the named defendants from "withdrawing, disbursing, investing, or otherwise transferring any trust assets of Thomas F. O'Connor maintained at Benjamin F. Edward & Co., including without limitation the assets titled in the name of Thomas' 1998 trust." Ms. Butler also sought the suspension of Mrs. Saunders as the trustee of her father's 2008 trust; an injunction enjoining Mr. Saunders and the Scolaro law firm, including Mr. Scolaro individually, from acting as trustees of Mr. O'Connor's 2008 trust; an injunction enjoining the named defendants from exercising power as trust protector of Mr. O'Connor's 2008 trust or naming any successor trustees or trust protectors; and the appointment of Mr. Lisch as special fiduciary to administer Mr. O'Connor's 2008 trust until further order of the court.
Based on the allegations included in Ms. Butler's verified petition, on May 31, 2011, the trial court granted her petition for an emergency temporary injunction without notice to the defendants or a hearing. The injunction also required that Mr. Lisch, a named defendant, post a security bond in the amount of $50,000.
On June 8, 2011, Mrs. Saunders sought removal of the case to federal court. The federal court, however, remanded the case back to state court on September 19, 2011. On November 18, 2011, Ms. Butler filed a motion to modify the order appointing the special fiduciary to allow Mr. Lisch, as Mr. O'Connor's guardian and the special fiduciary controlling his assets, to access the funds necessary to provide for Mr. O'Connor's care and welfare.
At the January 10, 2012, hearing on the motion to modify, Mrs. Saunders agreed that the injunction should be modified to allow Mr. Lisch the necessary access to the funds, but she added that the order should also be modified to delete the requirement that Mr. Lisch provide a $50,000 bond and instead require Ms. Butler to post a $250,000 security bond. Mrs. Saunders also sought permission to act as trustee of her father's 2008 trust upon her posting of a $200,000 bond. Finally, Mrs. Saunders represented that she would be filing a motion to dissolve the temporary injunction within the next few days. Following the hearing, the trial court modified the injunction to allow Mr. Lisch to take control of the Benjamin F. Edwards & Co. assets titled in the name of Mr. O'Connor's trust for the purpose of providing for Mr. O'Connor's care and living expenses and to pay attorneys' fees for representation of Mr. O'Connor and Mr. Lisch in his capacity as Mr. O'Connor's guardian.
On January 20, 2012, Benjamin F. Edwards & Co. filed a motion for clarification of the order granting Mr. Lisch access to the funds it held. A hearing was held on the motion, and again, Mrs. Saunders represented that a motion to dissolve the temporary injunction would be immediately filed. Her attorney argued that the court had exceeded its authority in entering the injunction and in appointing Mr. Lisch as special fiduciary of Mr. O'Connor's assets. Anticipating that the matter would be resolved by the motion to dissolve the injunction, on February 8, 2012, the trial court entered its order vacating that portion of the January 10, 2012, order granting Mr. Lisch access to the funds. The court also denied Benjamin F. Edward's motion as moot.
True to the representations she made to the court, Mrs. Saunders did file her motion to dissolve the injunction, and she set the motion for hearing on February 9, 2012. However, on the evening of February 8, 2012—after the entry of the order rescinding Mr. Lisch's access to Mr. O'Connor's funds—Mrs. Saunders withdrew her motion to dissolve the injunction. This appeal then proceeded.
On appeal, Mr. and Mrs. Saunders raise several issues regarding the procedure followed in entering the injunction, the scope of the injunction, and the appropriateness of removing Mrs. Saunders as trustee of Mr. O'Connor's 2008 trust.
First, Mr. and Mrs. Saunders argue that the trial court did not have the sufficient evidence to allow it to issue an emergency ex parte, temporary injunction. We disagree. Mr. and Mrs. Saunders argue that the trial court had no factual basis to enter the injunction because the complaint was not verified and no evidentiary hearing was held. Contrary to the representations made at oral argument by counsel for Mr. and Mrs. Saunders, the trial court did have sworn testimony to consider in the form of the verified motion for the ex parte injunction. These allegations are sufficient to provide the trial court with a factual basis on which to enter the emergency temporary, ex parte injunction.
Mr. and Mrs. Saunders also argue, however, that the trial court's order is deficient in that it fails to make factual findings as to each of the four elements the moving party must establish in order to obtain a temporary injunction. With this argument, we must agree.
The reversal of the trial court's order based on its lack of factual findings is not to be considered as a conclusion by this court that the allegations of the verified motion are not legally sufficient to support the entry of the emergency ex parte temporary injunction but only that the order is facially insufficient due to the lack of factual findings.
Reversed and remanded.
ALTENBERND and KELLY, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.