{ "id": 1442059, "name": "FRED EYCHANER et al., Appellees, v. THEODORE GROSS et al., Appellants", "name_abbreviation": "Eychaner v. Gross", "decision_date": "2002-10-03", "docket_number": "No. 91496", "first_page": "228", "last_page": "282", "citations": [ { "type": "official", "cite": "202 Ill. 2d 228" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "180 Ill. App. 3d 184", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2613977 ], "year": 1988, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/0184-01" ] }, { "cite": "269 Ill. App. 3d 51", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365874 ], "year": 1994, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0051-01" ] }, { "cite": "384 U.S. 563", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046547 ], "weight": 3, "year": 1966, "pin_cites": [ { "page": "583" }, { "page": "793" }, { "page": "1710" } ], "opinion_index": 0, "case_paths": [ "/us/384/0563-01" ] }, { "cite": "143 Ill. App. 3d 791", "category": "reporters:state", "reporter": "Ill. 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THEODORE GROSS et al., Appellants." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the opinion of the court:\nPlaintiffs, Fred Eychaner and Betty Lou Weiss, were directors of the Auditorium Theatre Council (Council). Plaintiffs brought an action against defendants, Roosevelt University and its president, Theodore Gross (collectively Roosevelt), in the circuit court of Cook County. In the claims and counterclaims that developed in this case, the Auditorium Theatre Council, Inc. (ATC Inc.), and Roosevelt, respectively, asserted their authority to control and operate the Auditorium Theatre (Theatre). Specifically, plaintiffs and ATC Inc. claimed that Roosevelt placed the right to control and operate the Theatre into a charitable trust with ATC Inc. as trustee.\nAt the close of a bench trial, the trial court found in favor of Roosevelt and rejected all theories supporting ATC Inc.\u2019s control of the Theatre. The trial court, inter alla, declared Roosevelt the sole and exclusive owner of the Theatre. The court also ordered an accounting of ATC Inc.\u2019s funds to separate public donations from operating revenues.\nThe appellate court, with one justice dissenting, reversed these orders and remanded the cause for further proceedings. 321 Ill. App. 3d 759. We allowed defendants\u2019 petition for leave to appeal. 177 Ill. 2d R. 315(a). We now reverse the judgment of the appellate court, affirm the order of the trial court, and remand the cause to the trial court for further proceedings.\nBACKGROUND\nDuring the 10-week bench trial, the court received approximately 400 documents and heard testimony from 37 witnesses, all of which generated 98 record volumes. The bench trial adduced the following facts.\nSetting\nThe Auditorium Building is located in downtown Chicago, bordered by Michigan Avenue on the east, Congress Parkway on the south, and Wabash Avenue on the west. The building was designed and built in the late nineteenth century by the renowned architects Louis Sullivan and Dankmar Adler. The building originally contained a hotel, commercial office space, and the Theatre, which comprises approximately 40% of the entire building. The Auditorium Building, including the Theatre, with its near-perfect acoustics, was recognized as an architectural masterpiece. However, by the end of World War II, the building, including the Theatre, was abandoned and in a state of disrepair.\nCast\nIn 1945, Roosevelt was incorporated as an Illinois not-for-profit corporation. In 1946, it became possible for Roosevelt to purchase the Auditorium Building and, to that end, the University solicited and received donations. In 1947, Roosevelt purchased the building, protected the Theatre from further deterioration, and converted the remaining space for use as Roosevelt\u2019s campus.\nIn the mid 1950s, Roosevelt began exploring ways to restore the Theatre. On September 11, 1958, a committee of Roosevelt\u2019s board of trustees recommended to the full board that a separate not-for-profit corporation be created to restore and operate the Theatre under that corporation\u2019s \u201ctrusteeship.\u201d On September 25, the full board rejected the proposal amid concerns of giving away rights to the University\u2019s property. The board recommended that \u201c[t]he University should remain the \u2018trustee\u2019 of the Auditorium Theatre.\u201d\nAt a December 4, 1958, board meeting, trustee Beatrice Spachner submitted \u201ca plan for the restoration of the Auditorium Theater and its operation under the auspices of Roosevelt University.\u201d On February 17, 1959, Roosevelt\u2019s board of trustees established the Auditorium Restoration and Development Committee (ARDC), composed of Roosevelt Board members and faculty, and community representatives. The ARDC was directed to examine Spachner\u2019s Theatre restoration plan.\nOn October 29, 1959, the ARDC reported to Roosevelt\u2019s board of trustees. At that meeting, the board passed a motion tentatively approving a fund drive to restore the Theatre, subject to the following conditions: that the committee\u2019s fund-raising efforts not impair Roosevelt\u2019s financial resources or credit; that Roosevelt\u2019s legal counsel recommend to the board \u201cthe legal entity and manner of contract\u201d that would enable Roosevelt to obtain its objectives; and \u201c[tjhat the University not lose ownership or control of the Auditorium Theatre.\u201d\nThe ARDC oversaw the drafting of a resolution to implement the fund drive. Attorney Elmer Gertz was the principal drafter of the resolution. In a letter dated January 21, 1960, Gertz asked Kenneth Montgomery, Roosevelt\u2019s attorney, to review the draft resolution. Gertz stated:\n\u201c[A] draft of the resolution has been agreed upon. I am sending a copy of it herewith. 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.\u201d (Emphases added.)\nGertz asked for Montgomery\u2019s ideas on the resolution, specifically on the subject of tax exemption.\nThe ARDC presented the draft resolution to Roosevelt\u2019s trustees at their February 11, 1960, board meeting. The proposed resolution renamed the ARDC the Auditorium Theatre Council (Council) and authorized it to raise funds for and to restore the Theatre. Several trustees continued to express concerns that the proposed resolution was not sufficiently explicit in its description of Roosevelt\u2019s control over the ARDC. They questioned whether the resolution complied with the board\u2019s October 29, 1959, motion that Roosevelt \u201cnot lose ownership or control of the Auditorium Theatre.\u201d Criticizing the proposed resolution, trustee Lerner stated that the \u201cTheater would be given away in perpetuum, under this proposal. No [Roosevelt] trustee who understands the word \u2018trust\u2019 should vote for it.\u201d\nAs reflected in the minutes of the board meeting, Gertz responded to these concerns:\n\u201c[Gertz] was not attempting to make policy for the Board, he said, but had simply tried to realize its intent as derived from the Board\u2019s own earlier resolutions and statements of policy. He went on to say that no separate corporation had been proposed because this arrangement would be even more subject to the objection that the University would be prevented from exercising control over the Auditorium. He asserted that any action taken by the proposed Auditorium Council could be changed or rescinded by the Board of Trustees.\u201d\nThe resolution was tabled to allow the ARDC to address the concerns that had been raised.\nOn February 18, 1960, the ARDC presented a revised resolution to Roosevelt\u2019s board of trustees. The revision renamed the ARDC the Auditorium Theater Council. The revision made Roosevelt\u2019s control more explicit and further limited the authority of the Council. Language stating that the Council would \u201cfully control\u201d the fund-raising, restoration, maintenance, management, and programming for the Theatre was deleted, leaving the Council only \u201cresponsible\u201d for fund-raising and restoration and \u201ccharged with the responsibility of carrying out the details of\u201d the fund-raising campaign and the management, programming, and operation of the Theatre. Language that would have allowed the Council to \u201cadopt such procedures *** as it may deem necessary\u201d was dropped. Language was added to ensure Roosevelt board approval, on an annual basis, of all new members to the Council\u2019s executive committee. Language was added to ensure the board\u2019s involvement in establishing a development reserve amount for the Theatre, with all Theatre revenues above that amount being transferred to Roosevelt\u2019s unrestricted funds. Language was added requiring the Council to make periodic progress reports regarding the restoration to the board, to provide information requested by the board, to make annual reports of operations to the board, and to submit to an annual audit by accountants. Finally, language was added requiring that the actions and programming of the Council \u201cbe in harmony with the aims of the University in serving the educational and cultural aspirations of the community.\u201d\nThe revised resolution, as quoted in the minutes, reads in its entirety:\n\u201c \u2018Resolved, that it is the intent of the Board of Trustees of Roosevelt University, for and on behalf of the University to implement as described hereinafter the plan for the restoration and operation of the Auditorium Theater which was submitted by the [ARDC] to the Board at its meeting of October 29, 1959, and incorporated in its minutes of that date.\nIT IS, THEREFORE, ORDERED\n(1) That the [Council] be now authorized and directed to take such steps as it may deem necessary to carry out a fund drive for the restoration of the Theater with due regard for safeguarding the right, title and interest of the University in and to the Theater and protecting the resources and credits of both the University and the Council.\n(2) That the Council be responsible for raising funds for the restoration of the Theater and for the supervision and administration of its restoration.\n(3) That the Council be empowered to secure the services of a professional fund-raising executive and staff to guide and operate the campaign for funds.\n(4) That the Council have authority to supervise the work of reconstruction, select engineers, architects, contractors, approve plans and specifications and contract and pay for the work performed, making periodic progress reports to the Board and providing requested information.\n(5) That a special fund be established to be known as the Auditorium Restoration Fund, segregated and separate from other funds of the University, that contributions for the restoration be deposited in this fund, and that the fund be used for no other purpose than the restoration and operation of the fund drive.\n(6) That the Council not contract, purchase or enter into obligations of any kind with any supplier or other person for the furnishing of work, services, or materials, or for any other purpose, unless funds or pledges are available for that purpose, and unless arrangements with any such person are in a form approved by legal counsel and embody the following provisions, among others, (a) a waiver of mechanics\u2019 hens; (b) the contracting parties will look only to the Restoration Fund for payment and not to any other fund of the University; and (c) the contracting parties will not hold the University nor any member of the Council or University hable or any reason whatsoever.\n(7) That the Council nominate for Board approval persons of its selection to be members of an Executive Committee charged with the responsibility for carrying out the details of the fund-raising campaign and for the management, maintenance, budgeting, programming, financing and operation of the restored Auditorium Theater.\n(8) That until such time as the Executive Committee of the Council is formed the Executive Committee of the [ARDC], members of which have already been approved by the Board, be responsible for the fund-raising campaign.\n(9) That the Executive Committee of the Council be composed of not more than 25 persons; that the initial membership of the Executive Committee be divided into three groups, with terms ending respectively in 1961, 1962, and 1963; and that the Council nominate annually persons for Board approval to serve terms of three years as the initial terms of the original group end.\n(10) That the Executive Committee of the Council organize itself and select such officers and committees as it deems necessary.\n(11) That after the restoration of the Theater, any funds remaining in the Auditorium Restoration Fund be transferred to an Auditorium Theater Operating Fund to be used only for the maintenance and operation of the Theater and be disbursed by direction of the Executive Committee of the Council.\n(12) That any surplus resulting from the operation of the Theater be retained in a development reserve, and that when an adequate sum, as determined by the Executive Committee of the Council in consultation with the Executive Committee of this Board, has been accumulated, any amount above that reserve be transferred to the unrestricted funds of the University.\n(13) That the actions and programming of the Council be in harmony with the aims of the University in serving the educational and cultural aspirations of the community.\n(14) That the Council or Executive Committee not conduct any capital, operating or maintenance fund-raising campaign other than the initial Restoration Campaign without consent of the Board.\n(15) That the Council through its Executive Committee prepare annual reports of its operations for the Board, and that an annual audit of the Council\u2019s operations be made by a firm of certified public accountants.\u2019 \u201d\nDiscussion on the resolution followed.\nSome trustees proposed additional amendments based on their concerns that the revised resolution did not sufficiently describe the control that the University would have over the Council. Kenneth Montgomery, Roosevelt\u2019s attorney, opposed any additional amendments as unnecessary. He described the Council as an \u201cagency\u201d of the University and assured the board that nothing would \u201cprevent the Board of Trustees from \u2018deactivating\u2019 the Auditorium Council and Committee [ARDC], who would owe their origin and authority to the Board.\u201d\nTrustee Gerald Gidwitz, an ARDC member and supporter of the revised resolution, similarly assuaged the board as reflected in the minutes:\n\u201cThe Committee [ARDC] considered that adequate protection for the University\u2019s interest inhered in the Board of Trustees\u2019 right to reconstitute or abolish the Auditorium Council and Committee, or to alter, modify, or abolish its powers in any way that the Board of Trustees might see fit. He said that the Board could change its mind about the terms of the resolution at any time in the future and he therefore urged that the resolution be passed without amendment.\u201d\nIn response to a request, Gidwitz agreed that his statement \u201ccould be incorporated in the minutes as reflecting the agreed understanding within the Board on the control which the Board could exercise over the Auditorium Council and [its] Executive Committee.\u201d\nUpon this agreed understanding, the Roosevelt University board of trustees rejected the proposed amendments. The board adopted the revised resolution by a vote of 18 to 7.\nSubsequent to the February 18, 1960, board meeting, Montgomery wrote a letter to the United States Internal Revenue Service (IRS), in which he sought a determination on behalf of Roosevelt that contributions to the Council would be tax deductible. Montgomery asked the IRS to grant Roosevelt\u2019s request because contributions to the Council were \u201cin fact contributions to [Roosevelt] because the Council is its agent.\u201d The IRS ruled that contributions to the Council would be tax-deductible to the donor, stating: \u201cSince it appears that contributions to the Council will inure entirely to your [Roosevelt\u2019s] benefit such contributions will be considered contributions to you.\u201d\nThe Council employed architects, engineers, construction experts and others to determine a plan to restore the Theatre. The cost of restoration was estimated at a minimum of $2.75 million. Roosevelt would often advance funds for the restoration of the Theatre. On October 31, 1967, the Theatre was reopened to the public.\nThe Council operated the Theatre under the supervision and control of Roosevelt. At the March 4, 1971, meeting of Roosevelt\u2019s board of trustees, Chairperson Jerome Stone reported that Standing Policies and Operating Procedures (SOPs) had been developed for the Theatre. According to the minutes, Stone reported: \u201cThis statement reaffirms and supplements the Board\u2019s resolution of February 18, 1960 establishing the Council.\u201d At its April 22, 1971, meeting, the board approved the SOPs. They mandated procedures the Council was to follow for the day-to-day operation of the Theatre and further secured the University\u2019s control over Theatre operations. For example, the SOPs mandated that all Theatre employees be paid by the University and be subject to University regulations.\nIn the late 1970s, some Council members posited that fund-raising for the Theatre would improve if the Council could obtain its own tax-exempt status from the IRS. According to the minutes of the December 20, 1977, meeting of the Council\u2019s executive committee, the Council and Roosevelt were discussing \u201cthe establishment of a \u2018Shell Corporation\u2019 for the purpose of separate tax-exempt status of the [Council].\u201d\nRobert Gorman, the University\u2019s attorney, revised a draft of the articles of incorporation and bylaws of the proposed corporation. In a letter dated October 22, 1979, Gorman opined:\n\u201cIn review, the Articles of incorporation and By-laws establish a separate Illinois not-for-profit corporation named the Auditorium Theatre Council. It is explicitly set forth in the Articles of Incorporation and in the By-laws that this new corporation is for fund raising purposes only and has no duties, rights, or operating responsibilities in connection with the Auditorium Theatre. ***\nIf the Board of Trustees approves the establishment of a new corporation, the Auditorium Theatre Council will exist in two legal capacities. In one capacity it will continue to exist as it has in the past as an unincorporated agency of Roosevelt University operating under, and subject to, the direction and control of the Board of Trustees of Roosevelt University. The books and accounts of the Auditorium Theatre Council will also continue to be subject to inspection by[,] and among the fiscal responsibilities and duties of[,] the Roosevelt Controller. The use, maintenance, operation and restoration of the Auditorium Theatre will continue in the identical fashion it has always done pursuant to the Resolution of the Board of Trustees of Roosevelt University dated February 18, 1960, and the [1971 SOPs].\nIn its other legal capacity the Auditorium Theatre Council will exist as an Illinois not-for-profit corporation in accordance with the Articles of Incorporation and By-laws submitted. It will use the name \u2018Auditorium Theatre Council.\u2019 However, the corporation will exist and be used for the solicitation of funds only. It will not affect in any way whatsoever the operations of the *** Council and the *** Theatre which will continue in the same manner as in the past.\u201d\nGorman concluded that the articles of incorporation and bylaws of the proposed corporation, Auditorium Theatre Council, Inc. (ATC Inc.), \u201care satisfactory and not in conflict with the interests of Roosevelt University.\u201d\nBeatrice Spachner, University trustee and chairperson of the Council, reported on the Council\u2019s fund-raising efforts at the October 25, 1979, meeting of Roosevelt\u2019s board of trustees. She stated that potential donors hesitated to contribute to the Council because it was not separately identified as a not-for-profit corporation organized for tax-exemption purposes. According to Spachner: \u201cTo overcome this concern of contributors, it was concluded that an affiliate of the Council should be incorporated only for the purpose of raising funds *** for the restoration, operation and maintenance of the Auditorium Theatre. *** [T]his will be the only function of the Corporation.\u201d\nBoth the Council and ATC Inc. would share similar names, and would have largely the same membership. However, the resolution authorizing the incorporation of ATC Inc. expressly stated:\n\u201cThis corporation is authorized for fund raising purposes only. The corporation will have no rights whatsoever for the use, operation, maintenance, or restoration of the Auditorium Theatre. The use, operation, maintenance and restoration of the Auditorium Theatre will continue, without change, to be the responsibility of the Auditorium Theatre Council in its separate legal capacity as an unincorporated agency of Roosevelt University subject to the control of the Roosevelt University Board of Trustees as set forth in the [1971 SOPs]. *** In the event that at any time in the future [ATC Inc.] should exceed any of the duties, rights, or powers granted it by this resolution, the Board of Trustees hereby reserves the right to terminate any uses, duties or rights of [ATC Inc.] in connection with the *** Theatre.\u201d\nRoosevelt\u2019s board of trustees adopted the resolution.\nOn September 8, 1981, ATC Inc. filed its articles of incorporation with the State of Illinois and was incorporated under the General Not For Profit Corporation Act (see 805 ILCS 105/101.01 et seq. (West 2000)). According to its articles of incorporation, ATC Inc.\u2019s corporate purpose was, in pertinent part:\n\u201cTo raise funds and gifts from individuals and organizations for the restoration, operation and maintenance of the Auditorium Theatre *** and the presentation of educational, civic and cultural programs therein, with due regard for safeguarding the right, title and interest of Roosevelt University in and to the Theatre, so that it will serve as a cultural center for the people of Chicagoland.\u201d\nATC Inc. subsequently obtained an IRS ruling that ATC Inc. was a tax-exempt organization and that donations to it would be tax-deductible by the donor.\nSubsequent to the incorporation of ATC Inc., the University updated the 1971 SOPs. The 1983 SOPs stated in pertinent part:\n\u201cThe purpose of the *** Council is to maintain, operate and continue the restoration of the internationally famed Auditorium Theatre of Roosevelt University. The Council will operate the Theatre for the benefit of the faculty and students of Roosevelt University and also, subject to the academic priorities of the University, to make artistic, cultural and educational contributions to the people of Greater Chicago through the sponsorship of events in the performing arts.\u201d\nThe 1983 SOPs are substantially similar to those of 1971. Significantly, the 1983 SOPs distinguish the identity and the function of the Council from those of ATC Inc. The 1983 SOPs recount that the University created the Council through the 1960 resolution of Roosevelt\u2019s board of trustees and that the University created ATC Inc. through the board\u2019s October 25, 1979, resolution. The 1983 SOPs state that the \u201csole purpose\u201d of ATC Inc. \u201cis to solicit funds for the Auditorium Theatre.\u201d\nDialogue\nThe University paid the Theatre\u2019s operating costs, such as insurance and employee payroll, from the University\u2019s general account. Roosevelt was supposed to be repaid from the Theatre revenue account. However, by the late 1980s, the Theatre\u2019s operating expenses exceeded its revenues. The Theatre lost more money than fund raising could offset. The general funds that Roosevelt expended were not reimbursed. Theatre losses and the operating deficit increased. Roosevelt paid this deficit by transferring money from its endowment fund to Theatre accounts.\nOn July 1, 1986, Roosevelt trustee Robert Mednick met with Council chairperson Jack Whitney to discuss this problem. According to a July 7, 1986, letter from Mednick to Whitney, they agreed that if the Theatre\u2019s cumulative operating deficit increased over approximately $250,000, the Theatre would be discontinued due to a lack of community support. An April 29, 1987, letter by a Council officer reflected the understanding that if the cumulative deficit exceeded this amount \u201cat any time, Roosevelt may close down the Council.\u201d\nThe Theatre\u2019s cumulative operating deficit eventually totaled over $400,000. However, despite the above-stated understanding, the University kept the Theatre open and continued to support the Theatre. Eventually, during the 1990s, the Theatre attracted large Broadway productions such as \u201cMiss Saigon,\u201d \u201cLes Miserables,\u201d \u201cPhantom of the Opera,\u201d and \u201cShowBoat.\u201d These productions and other popular programs enabled the Council to increase its revenues from ticket sales and to repay the funds transferred to the Theatre accounts from the University\u2019s other accounts.\nStrife\nBeginning in the late 1980s, the Council and Roosevelt disputed their respective rights over the Theatre. As reflected in a November 15, 1988, letter from Council chairperson Edward Weil to University President Gross, the Council recognized signs of success. \u201cThings are coming together nicely in the operation of the Theatre and at the same time the Council is starting to get the favorable recognition it deserves, and is beginning to tap into major funding sources.\u201d However, a June 26, 1989, memo from Gross to a committee of University trustees reflected the University\u2019s view: \u201cThe distinction that must continually be made is between authority and responsibility: the RU Board of Trustees has authority over the Theatre; the [Council] has the responsibility to manage the Theatre.\u201d (Emphases in original.)\nA rift grew between the parties. In 1989, Roosevelt informed the Council that a Council fund-raising campaign, initiated without the approval of Roosevelt\u2019s board of trustees, possibly violated the 1983 SOPs. At the April 14, 1989, meeting of the Roosevelt board, Gross reported this and other violations. He suggested options including \u201c[d] rowing up a new agreement that retains our ownership of the theatre but that establishes the [Council] as a no [t]-for-profit, separate corporation which pays $1 a year rent to the university and is responsible for its own operating budget and its own fund-raising.\u201d\nOn July 10, 1989, the Council\u2019s executive board agreed with Gross\u2019 recommendations. The group also concluded that the Council should continue to manage the day-to-day operations of the Theatre.\nAt its July 20, 1989, meeting, the Roosevelt board of trustees approved a resolution concerning \u201cthe organizational structure between Roosevelt University and the Auditorium Theatre.\u201d The resolution stated that the Council \u201chas responsibility for the artistic direction of the Theatre and the executive director of the Theatre reports directly to the president of the University with regard to budgetary and general operating matters.\u201d\nThe Council viewed this resolution essentially as Roosevelt transferring authority for managing the Theatre from the Council to Roosevelt. The Council\u2019s executive board rejected Roosevelt\u2019s resolution.\nOn August 1, 1989, the Council\u2019s executive board presented to Roosevelt a proposal to change the relationship between the University and the Council. The proposal acknowledged that Roosevelt owned the Theatre. Under the proposal, subject to conditions such as repayment of funds to Roosevelt, the Council would be disbanded and all operating authority would be transferred to ATC Inc., which would conduct fund-raising independently of the University. Roosevelt rejected this proposal.\nOn August 24, 1989, the Council\u2019s executive board resigned. The Council assumed \u201cno further responsibility\u201d for Theatre operations and advised University trustees to prepare to do so.\nAs a result of this discord, Roosevelt and the Council reached a disharmonious decision. The Council would continue its day-to-day operations of the Theatre; members of the Council\u2019s executive board rescinded their resignations; and Gross was elected chairperson of the Council. At its October 10, 1989, meeting, Roosevelt\u2019s board of trustees approved the following resolution:\n\u201cThe Auditorium Theatre is an aesthetic and financial asset of Roosevelt University, an integral unit led by an Executive Director who reports to the President of the University. The President serves as Chairman of the Auditorium Theatre Council. The Executive Director is assisted by the Auditorium Theatre Council in programming, fund-raising, special events, and other activities directly related to the Theatre.\nAlthough Roosevelt University retains final authority over all matters pertaining to the Auditorium Theatre, the Board of Trustees recognizes that the Auditorium Theatre Council must remain as autonomous as possible, contingent upon sound fiscal management. The University endorses the concept that Roosevelt University and the Auditorium Theatre are one entity. Roosevelt University wishes to assist the Auditorium Theatre in all of its efforts and supports the principle that, as a matter of first priority, all revenues raised in its behalf be placed in the account of the Auditorium Theatre for its continuing advancement.\nThe Auditorium Theatre should now be presented as the Auditorium Theatre of Roosevelt University.\u201d\nWhatever understanding the parties may have reached faltered from the beginning. Roosevelt and the Council constantly disputed their respective powers over the Theatre and the ownership of the Theatre\u2019s operating revenues.\nThroughout the early 1990s, the parties conducted continuous negotiations regarding various forms of agreements to change their relationship to each other and to the Theatre. For example, in 1991, John Blew, Council and ATC Inc. secretary, presented another proposal for transfer of Theatre operations from the Council to ATC Inc. His proposal included several justifications. First, pointing to the Council\u2019s board, Blew stated that the Council had an opportunity to move the board\u2019s composition \u201cinto a higher tier by attracting a group of more influential and higher profile members who both have more money themselves and, perhaps more important, have greater access to other sources of major funding.\u201d (Emphasis in original.) Blew posited that it was \u201cessential for such broad development that there be a separate legal entity and organization with its own identity and mission in place. The \u2018heavy hitters\u2019 we are talking about will simply not lend their names and prestige to an \u2018advisory committee\u2019 or anything of the sort.\u201d Blew suggested that operating the Council through ATC Inc. was a necessary condition to strengthening the Council\u2019s board.\nBlew also recommended that the relationship between the Council and ATC Inc. be clarified. According to Blew: \u201cThe minutes of meetings of the two \u2018mirror\u2019 organizations which now exist \u2014 the unincorporated association and the corporation \u2014 are not in acceptable shape. Most of our own board members don\u2019t really know or understand the organizational structure.\u201d Blew continued that \u201cif producers, artists and vendors were aware of the structure or lack thereof, they might be reluctant to enter into contracts with respect to the Theatre. It is not a healthy situation, and it is one which should not be permitted to continue.\u201d\nIn the course of his proposal, Blew acknowledged: \u201cThere is no question but that the University owns the Theatre and controls the Council \u2014 period.\u201d Roosevelt rejected the proposal.\nThrough 1993 and 1994, Roosevelt and ATC Inc. discussed a license or lease agreement under which Roosevelt would transfer Theatre operations to a reorganized ATC Inc. On June 22, 1993, ATC Inc. sent a letter to the IRS inquiring into the corporation\u2019s tax-exempt status if it took over Theatre operations. In the letter, ATC Inc. represented to the IRS, under penalty of perjury, that the Council operated the Theatre as a \u201cpart\u201d of, or \u201cunit within,\u201d the University since 1960 and that a \u201cproposal\u201d had been made to transfer Theatre operations to ATC Inc. prospectively. The IRS determined that the proposed reorganization would not affect the tax-exempt status of ATC Inc. By December 1994, the parties had agreed on neither the terms of a license nor the makeup of the proposed reconstituted ATC Inc.\nDuring this time, ATC Inc. made additional proposals to Roosevelt regarding the Theatre. In mid-1994, ATC Inc. offered to purchase the Theatre from Roosevelt for $1 million, but the University rejected the offer. In November 1994, ATC Inc. offered to purchase the Theatre for $3 million, which offer the University rejected.\nAt a December 15, 1994, meeting of the Council\u2019s executive committee, Gross requested that the committee recommend the transfer of $1.5 million out of the $3 million then contained in the Theatre\u2019s operating accounts into Roosevelt\u2019s general accounts. Roosevelt wanted to use the $1.5 million to finance its new Schaumburg campus. The money would be transferred from the Theatre\u2019s operating revenues and not from contributions. The Theatre\u2019s executive director stated at this meeting that the transfer would not impair Theatre operations. ATC Inc. members objected to the transfer. It was agreed that no action would be taken on the request pending receipt of an opinion from Roosevelt\u2019s counsel regarding the legality of the proposed transfer.\nAdversaries\nThe next day, plaintiffs brought this lawsuit. In July and November 1995, the Roosevelt University board of trustees approved resolutions that: (1) dissolved the Council; (2) withdrew any and all powers given to ATC Inc.; and (3) authorized a new not-for-profit corporation to manage and operate the Theatre, known as the Auditorium Theatre of Roosevelt University (AT of RU).\nIn their complaint, plaintiffs sought an injunction prohibiting defendants and ATC Inc. from directing the transfer of any money from ATC Inc. to Roosevelt for non-Theatre purposes. Also, plaintiffs sought a declaration that Roosevelt had placed the Theatre \u201cin the public domain for the benefit of the people of Chicagoland,\u201d with the Council and its successor, ATC Inc., as trustee. Plaintiffs also sought a declaration that, inter alla-. ATC Inc. had legal title to all funds donated and all revenue generated from its operations; any transfer of money from ATC Inc. to Roosevelt for non-Theatre purposes would violate the articles of incorporation and bylaws of ATC Inc.; and such transfer would violate the General Not For Profit Corporation Act of 1986 (805 ILCS 105/ 101.01 et seq. (West 2000)).\nRoosevelt filed an answer, in which the University raised defenses. Roosevelt claimed that ATC Inc.\u2019s sole corporate purpose was to raise funds for the Theatre and that the board of trustees of the University, the owner of the building, had never granted ATC Inc. authority or power to restore, maintain, or operate the Theatre. Roosevelt also claimed that ATC Inc. did not succeed the Council created in 1960. Among its defenses, Roosevelt claimed: \u201c[Tjhere is absolutely no legal doctrine involving the dedication of private property to the \u2018public domain,\u2019 at least without a governmental taking through a condemnation proceeding with just compensation.\u201d\nRoosevelt also filed a counterclaim against plaintiffs and ATC Inc. for declaratory and injunctive relief. Roosevelt sought a declaration that the University owns all right, title, and interest in the Theatre. Roosevelt sought a further declaration that: the University has the sole power and authority to restore, maintain, and operate the Theatre; that the University granted a revocable license to the Council to perform those tasks; and that ATC Inc. has no right to perform those tasks, but was created solely for fund-raising purposes. Roosevelt also sought, inter alla, an accounting of ATC Inc.\u2019s funds and an injunction to prevent ATC Inc. from operating the Theatre.\nATC Inc. filed its own counterclaim against Roosevelt. The corporation asserted a number of alternative legal theories in support of its claimed control of the Theatre.\nThe trial court granted Gross\u2019 motion to dismiss all claims against him as legally insufficient (see 735 ILCS 5/2 \u2014 615(a) (West 2000)). Also, granting Roosevelt\u2019s motion for partial judgment on the pleadings (see 735 ILCS 5/2 \u2014 615(e) (West 2000)), the trial court held that: (1) Roosevelt had the authority and right to restore, maintain, and operate the Theatre; (2) ATC Inc.\u2019s sole right is to raise money for the Theatre; and (3) the positive net operating revenues from Theatre performances are the property\" of the University.\nIn a Rule 23 order, the appellate court reversed the orders of the circuit court and remanded the cause for a trial. Eychaner v. Gross, Nos. 1 \u2014 95\u20143614, 1 \u2014 96\u20141412 cons. (1997) (unpublished order under Supreme Court Rule 23). The appellate court determined that disputed questions of material fact existed regarding the parties\u2019 relationship. The appellate court also held that plaintiffs\u2019 claims were legally sufficient.\nOn remand, plaintiffs and ATC Inc. (hereafter referred to as plaintiffs) amended their pleadings. They, inter alla, altered their trust theory to assert an \u201cexpress trust\u201d of the right to restore, maintain, and operate the Theatre, which they referred to as the \u201cAuditorium Theatre Trust.\u201d Plaintiffs maintained their allegations that the Council was the trustee and ATC Inc., as legal successor to the Council, became, and remains, the trustee. In its counterclaim against Roosevelt and Gross, ATC Inc. alleged, inter alla-. (1) an express charitable public trust; (2) constructive trust; (3) breach of contract based on the 1960 resolution and SOPs; (4) equitable estoppel; and (5) promissory estoppel.\nAt the close of a bench trial, on September 28, 1998, the court entered judgment in favor of Roosevelt on its counterclaim and denied plaintiffs\u2019 theories of relief. The trial court declared the University to be the sole and exclusive owner of the Theatre. The trial court: ordered plaintiffs to turn over control of the Theatre to the newly formed AT of RU; barred the Council and ATC Inc. from operating and controlling the Theatre; and ordered an immediate accounting of Theatre operations. On September 29, the trial court made an express written finding making these orders immediately enforceable (see 155 Ill. 2d R. 304(a)).\nA divided appellate court reversed these orders and remanded the cause for further proceedings. 321 Ill. App. 3d 759. The appellate court held that the trial court\u2019s conclusion that there was no express trust was clearly erroneous. 321 Ill. App. 3d at 779. Based on that holding, the court declined to address plaintiffs\u2019 alternative claims. 321 Ill. App. 3d at 780-81. A concurring justice wrote separately to disagree with the dissent. 321 Ill. App. 3d at 785 (Cahill, EJ., specially concurring). The dissenting justice concluded: \u201cBecause there is enough admissible evidence to support the trial judge\u2019s view that this was a takeover attempt by an instrumentality of Roosevelt University, I would affirm his conclusion that there is no trust.\u201d 321 Ill. App. 3d at 788 (Wolfson, J., dissenting). We allowed defendants\u2019 petition for leave to appeal.\nWe subsequently granted leave to DePaul University and the Illinois Institute of Technology to file an amicus curiae brief in support of defendants\u2019 appeal. We also granted leave to the Landmarks Preservation Council of Illinois to file an amicus curiae brief in support of plaintiffs.\nANALYSIS\nI. Standard of Review\nThe parties disagree as to our standard of review of the trial court\u2019s decision. Defendants contend that we should review the trial court\u2019s decision under the \u201cmanifest weight of the evidence\u201d standard. Plaintiffs contend that the \u201cclearly erroneous\u201d standard is the proper standard of review. The appellate court employed the \u201cclearly erroneous\u201d standard of review. 321 Ill. App. 3d at 770.\nThe trial court heard witness testimony and resolved conflicts of fact. In a bench trial, the trial court must weigh the evidence and make findings of fact. In close cases, where findings of fact depend on the credibility of witnesses, it is particularly true that a reviewing court will defer to the findings of the trial court unless they are against the manifest weight of the evidence. Chicago Investment Corp. v. Dolins, 107 Ill. 2d 120, 124 (1985). The findings of the trial court as to the existence of a trust will not be disturbed on review unless such findings are against the manifest weight of the evidence. In re Estate of Zukerman, 218 Ill. App. 3d 325, 330 (1991) (and cases cited therein). This standard also applies regarding the existence of an agency relationship. Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 47 (1994). A decision is against the manifest weight of the evidence only when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not based on the evidence. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 242 (1996); Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 106 (1995); Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995). \u201cThe court on review must not substitute its judgment for that of the trier of fact.\u201d Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434 (1991).\nNevertheless, the trial court also construed and ruled on the legal effect of documents. In reviewing the trial court\u2019s conclusions of law, we apply a de nova standard of review. See Norskog v. Pfiel, 197 Ill. 2d 60, 70-71 (2001); Woods v. Cole, 181 Ill. 2d 512, 516 (1998); T. O\u2019Neill & S. Brody, Taking Standards of Appellate Review Seriously: A Proposal to Amend Rule 341, 83 Ill. B.J. 512, 516 (1995). We now turn to the merits of the issues before us.\nII. Express Charitable Trust\nPlaintiffs claim that the 1960 resolution of Roosevelt\u2019s board of trustees, together with the surrounding circumstances, created an express charitable trust with the Council and its successor, ATC Inc., as trustee in charge of restoring and operating the Theatre. The trial court rejected plaintiffs\u2019 claim, and concluded that Roosevelt created the Council as its agent for restoring and operating the Theatre. The appellate court reversed and remanded for further proceedings, finding \u201clegal and factual errors in the trial court\u2019s resolution of the charitable trust issue.\u201d 321 Ill. App. 3d at 771.\nBefore this court, plaintiffs, as appellees, not only defend the appellate court\u2019s judgment, but also request, as cross-relief, that we declare the existence of the alleged trust. We decline plaintiffs\u2019 request. The record contains ample evidence that supports the trial court\u2019s findings of fact.\nThe controlling legal principles are quite settled. A trust \u201cis a fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.\u201d (Emphasis added.) Restatement (Second) of Trusts \u00a7 2 (1959). In Illinois, creation of an express trust requires: (1) intent of the parties to create a trust, which may be shown by a declaration of trust by the settlor or by circumstances which show that the settlor intended to create a trust; (2) a definite subject matter or trust property; (3) ascertainable beneficiaries; (4) a trustee; (5) specifications of a trust purpose and how the trust is to be performed; and (6) delivery of the trust property to the trustee. Zukerman, 218 Ill. App. 3d at 329; In re Estate of Wilkening, 109 Ill. App. 3d 934, 940-41 (1982); Price v. State, 79 Ill. App. 3d 143, 148 (1979).\n\u201cA charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable purpose.\u201d (Emphasis added.) Restatement (Second) of Trusts \u00a7 348 (1959). Charitable trusts have similar characteristics as private trusts (Restatement (Second) of Trusts \u00a7 348, Comment a (1959)), and the methods of creating both types of trusts are the same (Restatement (Second) of Trusts \u00a7 349, Comment a (1959)). However, charitable trusts need not specify definite beneficiaries (Restatement (Second) of Trusts \u00a7 364, Comment a (1959)) and may be perpetual (Restatement (Second) of Trusts \u00a7 365, Comment a (1959)).\nEach of the requisite elements of an express trust must be established. If any one of the necessary elements is not described with certainty, no trust is created. Wilkening, 109 Ill. App. 3d at 941; accord In re Frain, 222 B.R. 835, 837 (Bankr. N.D. Ill. 1998) (applying Illinois law); In re Marchiando, 142 B.R. 246, 249-50 (N.D. Ill. 1992) (same). \u201cStated otherwise, any attempt to create an express trust that omits one or more of the formal requirements automatically fails.\u201d 76 Am. Jur. 2d Trusts \u00a7 46, at 74 (1992). The requirement that each of the necessary elements of an express trust be established has long been the law in Illinois. See, e.g., Tucker v. Countryman, 414 Ill. 215, 221 (1953); Marble v. Estate of Marble, 304 Ill. 229, 235 (1922).\nA. Trust Element of Intent\nThe trial court found that Roosevelt did not intend to create an express charitable trust through the 1960 resolution, but rather intended to create the Council as its agent. As earlier emphasized, an express charitable trust arises, by definition, \u201cas a result of a manifestation of an intention to create it.\u201d Restatement (Second) of Trusts \u00a7\u00a7 2, 348 (1959). \u201cThe intention of the settlor to presently create a declaration of trust is essential.\u201d (Emphasis in original.) Kavanaugh v. Estate of Dobrowolski, 86 Ill. App. 3d 33, 39 (1980). Indeed, \u201cthe primary focus in determining the existence of a trust must be on the intent of the settlor to establish a trust at the time of the creation of the alleged trust ***.\u201d 76 Am. Jur. 2d Trusts \u00a7 64, at 92 (1992). It is not enough that the settlor secretly intends to create a trust. No trust will arise unless there is an outward expression of the settlor\u2019s intention at the time of the trust\u2019s purported creation. Kavanaugh, 86 Ill. App. 3d at 40; Restatement (Second) of Trusts \u00a7 4, Comment a (1959).\n\u201cIt is immaterial whether or not the settlor knows that the intended relationship is called a trust, and whether or not [the settlor] knows the precise characteristics of the relationship which is called a trust.\u201d Restatement (Second) of Trusts \u00a7 23, Comment a (1959). As a learned treatise explains:\n\u201cIn many cases the owner of property in disposing of it has no very clear idea of the precise nature of the disposition that [the owner] intends to make. The distinction between a trust and other juridical relationships is not always an easy one to draw, even for the trained lawyer. It is often difficult to tell whether the owner of property is creating a trust or making some other disposition. A trust is created if in substance what [the settlor] intends to create is the relationship that lawyers know as a trust. In most cases, and particularly where the intention is manifested in an instrument drawn by a competent lawyer, there is no difficulty in determining whether the owner of properly has manifested an intention to create a trust.\u201d 1 W Fratcher, Scott on Trusts \u00a7 23, at 249-50 (4th ed. 1987).\nAs otherwise stated: \u201cThere must be a particular intent to confer benefits through the medium of a trust, and not through some related or similar device.\u201d G. Bogert, Trusts & Trustees \u00a7 46, at 489-91 (rev. 2d ed. 1984).\nThe manifestation of intention to create a trust \u201cmay clearly appear from written or spoken words or may be determined by interpretation of the words or conduct of the settlor in the light of all the circumstances.\u201d Restatement (Second) of Trusts \u00a7 4, Comment a (1959). No particular form of words or conduct is necessary for the manifestation of intent to create a trust. Restatement (Second) of Trusts \u00a7 23, Comment a (1959). Indeed, \u201c[a] trust may be created although the settlor does not use the word \u2018trust ***.\u2019 \u201d Restatement (Second) of Trusts \u00a7 24, Comment b (1959). \u201cActs prior to and subsequent to, as well as acts contemporaneous with the manifestation which it is claimed creates a trust, may be relevant in determining the settlor\u2019s intention to create a trust.\u201d Restatement (Second) of Trusts \u00a7 24, Comment b (1959). \u201cThe question in each case is whether the settlor manifested an intention to create the kind of relationship that to lawyers is known as a trust.\u201d 1 W. Fratcher, Scott on Trusts \u00a7 24, at 250 (4th ed. 1987); accord Price, 79 Ill. App. 3d at 148.\n1. The Resolution Standing Alone\nPlaintiffs claim that the 1960 resolution \u201ccomprehensively defined the relationship between Roosevelt and the Council.\u201d Plaintiffs contend that the 1960 resolution of the Roosevelt University board of trustees, by itself, manifests the University\u2019s intent to create a charitable trust, in which the Council acts as trustee over the right to restore and operate the Theatre for the benefit of the public. When a document makes clear the existence of a trust, no particular form of words is necessary. A court will support an intention to create a trust wherever such intention can be fairly collected from the language of the instrument. Zukerman, 218 Ill. App. 3d at 330. \u201cIn determining that intent the court must consider the plain and ordinary meaning of the words used [citations], and the intent must be ascertained by considering the entire document.\u201d First National Bank of Chicago v. Canton Council of Campfire Girls, Inc., 85 Ill. 2d 507, 514 (1981).\nAssuming, without deciding, that restoration and operation of the Theatre constitute possessory interests in real property that can be held in trust, it is clear that the 1960 resolution, standing alone, did not manifest an intent on the part of Roosevelt to create a charitable trust. We earlier quoted the resolution in its entirety. On its face, the resolution lacks many indicia that are consistent with charitable trusts.\nInitially, the resolution does not contain any words of alienation or conveyance, i.e., there are no words of transfer of an interest in the property from a \u201csettlor\u201d to someone or something that might be a \u201ctrustee.\u201d Plaintiffs point to certain \u201crights\u201d that the resolution transferred to the Council. The resolution \u201cauthorized and directed\u201d the Council to raise funds for the Theatre restoration. The resolution made the Council \u201cresponsible\u201d for supervising the restoration. The resolution also \u201cempowered\u201d the Council to hire a fund-raiser and staff and gave the Council \u201cauthority to supervise\u201d the reconstruction while reporting to the Roosevelt University board of trustees. According to plaintiffs: \u201cVirtually every paragraph of the Resolution grants broad discretion to the Council as trustee. *** Thus, the Resolution itself contains overwhelming evidence of Roosevelt\u2019s intent to authorize and empower the Council to act as fiduciary for the public and, in that capacity, to possess, restore and operate the Theatre, and hold and spend donations and Theatre revenues.\u201d (Emphasis added.)\nPlaintiffs specifically discuss paragraph 12 of the 1960 resolution, which authorized the Council to retain any Theatre operating surplus in a development reserve. Plaintiffs describe paragraph 12 as expressing \u201cRoosevelt\u2019s intent that the Theatre would be operated by the autonomous independent Council, using Theatre revenues to defray all expenses.\u201d According to plaintiffs, paragraph 12 gave the Council the \u201cwidest discretion to determine the adequacy of the development reserve, not only to assure the future of the Theatre for the public, but also to provide Roosevelt with additional protection from liability. Once an adequate reserve was established, Roosevelt would share in surpluses to support its academic mission.\u201d Indeed, plaintiffs go so far as to argue that Roosevelt, by paragraph 12 of the 1960 resolution, gave away its fundamental right of ownership of the Theatre. According to plaintiffs, paragraph 12 indicates the durable nature of the trust by providing that the Council \u201cwould continue to fulfill its mission\u201d for an indefinite period of time by building a development reserve to fund the ongoing preservation of the Theatre.\nIt is clear that plaintiffs fail to distinguish the concepts of agency and trust. It must be remembered that \u201c[t]here are a number of widely varying relationships which more or less clearly resemble trusts, but which are not trusts, although the term \u2018trust\u2019 is sometimes used loosely to cover such relationships.\u201d Restatement (Second) of Trusts, ch. 1, topic 2, at 15 (1959). \u201cAn agency is not a trust.\u201d Restatement (Second) of Trusts \u00a7 8 (1959). An agent is one who undertakes to manage the affairs of another, on the authority and for the account of the latter, who is called the principal, and to render an account to the principal. See Mills v. State National Bank, 28 Ill. App. 3d 830, 834 (1975). Thus, when A puts his or her property in the hands of B to keep or manage, A creates, as between A and B, the relation known as principal and agent. In re Estate of Morys, 17 Ill. App. 3d 6, 9 (1973). An agent is subject to the control of the principal. Restatement (Second) of Trusts \u00a7 8, Comment b (1959); 76 Am. Jur. 2d Trusts \u00a7 13, at 45 (1992).\nIn this case, the resolution never uses the word \u201crights\u201d in connection with the restoration and operation of the Theatre. Rather, the resolution delegated duties to the Council. The only time the resolution uses the word \u201crights\u201d is when Roosevelt preserved and safeguarded its own property rights in the Theatre.\nThe intent to grant authority to take action with respect to real property is not the same as the intent to permanently alienate or transfer an ownership interest. See Olson v. Etheridge, 177 Ill. 2d 396, 406 (1997) (distinguishing an assignment of rights from a delegation of duties). Although the resolution makes the Council responsible for performing these duties, nothing in the resolution indicates an intent to alienate any alleged \u201crights\u201d from Roosevelt. Rather, the delegation of duties to the Council created an agency relationship. For example, an apartment building owner directs her property manager to manage the building with discretion to make decisions concerning building maintenance and finances. However, the delegation of these duties does not alienate the same rights from the owner, who can always step in and make decisions on her own relating to those matters. A\u00cdso, the building owner retains the ultimate power to prevent the manager from taking any action with respect to her property or to discharge the manager altogether.\nIn this case, the resolution specifically directs that the Council act with \u201cdue regard for safeguarding the right, title and interest of the University in and to the Theatre.\u201d This is a clear expression of Roosevelt\u2019s intent to retain, rather than transfer, its property rights in and to the Theatre.\nThe 1960 resolution lacks other indicia that are consistent with charitable trusts. The resolution contains no words of delivery or any provision directing a delivery of property or an interest in property. The resolution states no \u201ccharitable\u201d or \u201cpublic\u201d purpose, or any purpose to benefit anyone else. Also, the resolution does not state any purpose to confer benefits through the medium of a trust.\nFurther, the 1960 resolution contains a number of provisions that are inconsistent with the creation of a trust. The resolution states that the legal title to and all rights in the Theatre are to remain in Roosevelt, which precludes an alienation or transfer of such rights to a \u201ctrustee\u201d as would be necessary for a trust. The resolution affirmatively states that it is intended to benefit its author, Roosevelt.\nAlso, the 1960 resolution contains many restrictions on the Council. Pursuant to the resolution, the Council was required to report periodically to the board regarding the restoration of the Theatre and to provide the board with requested information. The Council had to deposit all funds raised into a special, segregated University account. The Council could not enter into any contracts, purchases, or obligations unless certain criteria were met, including having the money on hand to pay for the obligation. The Council\u2019s programming for the Theatre was required to be in harmony with the University\u2019s aims. The Council had to prepare an annual report for Roosevelt\u2019s board of trustees and submit to an annual audit. Also, all nominees for the Council\u2019s executive committee required approval of Roosevelt\u2019s board of trustees. These controls on the Council indicate an agency relationship.\nThe 1960 resolution, standing alone, cannot be read as a trust instrument. Every provision of the resolution is more consistent with the intent to create an agency relationship than the intent to create a trust, and the resolution lacks elements that are required to create a trust.\n2. Parol Evidence\nPlaintiffs additionally rely on paroi evidence, i.e., evidence outside of the resolution itself, to prove their claim of an express charitable trust. It is settled that an express trust may be established by paroi evidence. However, one seeking to establish an express trust by paroi evidence bears the burden of proving the trust by clear and convincing evidence. The acts or words relied upon must be so unequivocal and unmistakable as to lead to only one conclusion. If the paroi evidence is doubtful or capable of reasonable explanation upon any other theory, it is not sufficient to establish an express trust. Maley v. Burns, 6 Ill. 2d 11, 18 (1955); Cusack v. Cusack, 339 Ill. 108, 120 (1930); Zukerman, 218 Ill. App. 3d at 330.\nWe note plaintiffs\u2019 contention that the clear-and-convincing burden of proof does not apply to their attempt to prove the existence of the express trust using paroi evidence. Plaintiffs contend that the clear-and-convincing burden of proof applies only to attempts to establish trusts with oral statements or other paroi evidence, or attempts to modify written trusts through oral statements. According to plaintiffs, the express trust is based on the 1960 resolution, \u201cas defined in part by the contemporaneous circumstances surrounding the Resolution\u2019s enactment and the later conduct of the parties.\u201d\nWe cannot accept this argument. This court explained long ago:\n\u201c \u2018Where the trust does not appear on the face of the deed or other instrument of transfer, a resort to paroi evidence is indispensable. It is settled by a complete unanimity of decision that such evidence must be clear, strong, unequivocal, [and] unmistakable ***.[\u2019] *** \u2018As a general rule, the policy of the law requires that everything which may affect the title to real estate shall be in writing, \u2014 that nothing shall be left to the frailty of human memory or as a temptation to perjury; and whenever this policy of the law has been broken in upon and paroi evidence admitted, the courts have been ever careful to examine into every circumstance which may affect the probability of the alleged claim, as the lapse of time, the means of knowledge and circumstances of the witness; and it will not grant the relief sought where the claim has been allowed to lie dormant for an unreasonable length of time or where the evidence is not very clear in support of the alleged right ***\u2019.\u201d Keuper v. Unknown Heirs of Mette, 239 Ill. 586, 592 (1909).\nIn this case, plaintiffs offer evidence outside of the purported trust instrument, i.e., the 1960 resolution, as additional proof of their claim. Such evidence must be so clear and convincing as to lead to only one conclusion. See Maley, 6 Ill. 2d at 18.\nTurning to the merits, plaintiffs contend that the trial court erroneously excluded certain paroi evidence offered at trial and ignored other paroi evidence admitted at trial. Plaintiffs presented paroi evidence from several sources: (a) the official actions of Roosevelt, the purported settlor, through its board of trustees; (b) statements by individual trustees and executives of Roosevelt and by others; and (c) statements made to the public. The evidence consisted of both exhibits and witness testimony.\nThe trial court considered that most of the paroi evidence that plaintiffs presented \u201cwere not pertinent to the legal intent of the parties.\u201d (Emphasis in original.) The court concluded that \u201cstatements made by individuals are immaterial. The only one that could create an express trust was Roosevelt acting through its Board of Trustees. They never did so.\u201d\nThis narrow view of admissible evidence was erroneous. All of the circumstances are relevant in determining the settlor\u2019s intent to create an express trust. See Price, 79 Ill. App. 3d at 148; LaThrop v. Bell Federal Savings & Loan Ass'n, 42 Ill. App. 3d 183, 188 (1976), aff\u2019d, 68 Ill. 2d 375 (1977); Restatement (Second) of Trusts \u00a7 24, Comment b (1959); 76 Am. Jur. 2d Trusts \u00a7\u00a7 65, 66 (1992).\nHowever, this evidentiary error does not compel reversal. It is the judgment of the trial court, and not what else may have been said by the trial court, that is on appeal to a court of review. Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387 (1983). In a nonjury case the whole record is before the reviewing court. Any error which may have been committed in ruling upon the admission or exclusion of evidence is unimportant. If there is competent evidence sufficient to sustain the trial court\u2019s decision it will be affirmed, regardless of the views of the trial court as to the competency of the evidence at trial. Newman v. Youngblood, 394 Ill. 617, 625 (1946).\nIn this case, the record contains ample evidence to support the trial court\u2019s conclusion that Roosevelt did not intend to create an express charitable trust through the resolution but, instead, intended to create the Council as an agent for restoring and operating the Theatre.\nPlaintiffs posit that the official actions of Roosevelt show that the University intended to establish a charitable trust to protect the University\u2019s real estate tax exemption. We recounted at length the history that gave rise to and the debate that surrounded the resolution\u2019s adoption on February 18, 1960. The record includes: the rejection of the suggestion that a separate entity run the Theatre under its own \u201ctrusteeship\u201d; the October 29, 1959, motion passed by Roosevelt\u2019s board of trustees requiring that under the ultimate arrangement Roosevelt not lose \u201cownership or control\u201d of the Theatre; and the Trustees\u2019 direction on February 11, 1960, that the resolution be revised to comply with the conditions of the October 29, 1959, motion. Also surrounding the February 18, 1960, resolution was the \u201cagreed understanding,\u201d based on trustee Gidwitz\u2019s statement that Roosevelt would exercise unlimited control over the Council and could change the terms of the resolution, including paragraph 12, at any time. These official actions of the Roosevelt University board of trustees clearly show that the University never intended to relinquish its ownership and control over the Theatre.\nAlso, subsequent official actions of Roosevelt demonstrated its intent to create an agency relationship through the 1960 resolution. The 1971 SOPs expressly \u201creaffirm[ed] and supplement[ed]\u201d the 1960 resolution. The 1983 SOPs, expressly recounting the 1960 resolution, mandated that the Council operate the Theatre for the benefit of Roosevelt. The 1983 SOPs also recounted that the \u201csole purpose\u201d of ATC Inc. was \u201cto solicit funds\u201d for the Theatre. Notably, in July 1995, Roosevelt\u2019s board of trustees dissolved the Council.\nHowever, plaintiffs contend that Roosevelt expressed its intent to create a charitable trust in two documents approved by Roosevelt. The Council\u2019s 1962 bylaws and ATC Inc.\u2019s 1981 bylaws each state that Roosevelt would \u201ctake no unilateral action to terminate the availability\u201d of the Theatre as long as the property was used for purposes consistent with the objectives set forth in the bylaws. In the Council\u2019s 1962 bylaws, Roosevelt additionally stated that it would not \u201csell the building without undertaking to provide for the continued functioning of the Council program.\u201d\nThis evidence is not clear and convincing. The above statements can be viewed consistently with an agency relationship. Accordingly, they are insufficient to establish an express charitable trust.\nPlaintiffs next point to statements of individual Roosevelt officials made subsequently to the resolution\u2019s adoption on February 18, 1960, to prove that the University intended by that resolution to create an express charitable trust. However, these statements are outweighed by ample evidence. Statements from officials of Roosevelt, the Council, and ATC Inc. establish that, through the resolution, Roosevelt did not intend to create an express charitable trust but, rather, intended to create an agency relationship with the Council.\nThe IRS ruled in 1960 that contributions to the Council would be tax deductible because the Council was not a separate entity from Roosevelt. In 1993, ATC Inc. represented to the IRS, under penalty of perjury, that the Council had operated the Theatre as a \u201cpart\u201d of or \u201cunit within the University\u201d since 1960 and that a \u201cproposal\u201d had been made to transfer Theatre operations to ATC Inc. prospectively. Thus, ATC Inc. admits that the Council never was an entity separate from Roosevelt.\nIn addition to the evidence already discussed, the record contains additional evidence against plaintiffs\u2019 claim of an express charitable trust. The trial court heard the testimony of Roosevelt University trustees Gidwitz, Stone, Mednick, Newman, Anixter, and Gross. The court summarized their testimony as follows:\n\u201cSix Roosevelt trustees testified in the case at bar. All agreed that during each\u2019s tenure on the Roosevelt Board, the University never placed the Theatre in trust nor did it take any action to divest itself of any control over the Theatre. These same individuals all testified that they never heard of a purported public trust until the onset of this litigation.\u201d\nThe trial court heard the testimony of these witnesses, observed their demeanor, and assessed their credibility. The court\u2019s findings based thereon are entitled to deference. See Chicago Investment Corp., 107 Ill. 2d at 124.\nAlso, members of ATC Inc.\u2019s executive committee testified at trial. They conceded that ATC Inc.\u2019s offers to lease or buy the Theatre from Roosevelt were attempts by the corporation to gain the control over the Theatre that it lacked. They testified that such actions would have been \u201cunnecessary and superfluous\u201d if ATC Inc. actually had control of the Theatre. As John Blew, secretary of the Council and of ATC Inc., stated to University President Gross: \u201cThere is no question but that the University owns the Theatre and controls the Council \u2014 period.\u201d\nPlaintiffs point to the following as evidence of trust intent. On April 5, 1960, Harland Allen, chairperson of Roosevelt\u2019s board of trustees, and Beatrice Sprachner, University trustee and Council chairperson, jointly issued a statement \u201cfor the purpose of clarifying any misunderstandings which may exist regarding plans for restoration and operation of the Auditorium Theatre.\u201d The \u201cSeven-Point Statement\u201d was printed in several Chicago newspapers the next day. It explained that the Council would \u201chave full authority and responsibility for the restoration campaign and the operation of the theater\u201d and would have \u201cfull authority and responsibility for the programs that go into the theater and for supervision of theater operations.\u201d\nPlaintiffs point to additional statements by individual Roosevelt trustees and executives. For example, on March 4, 1960, Allen announced in a press release:\n\u201cThe University\u2019s trustees have been impressed by and are fully cognizant of the public trust which the ownership of the Theater has imposed upon them. *** By creating the Auditorium Theater Council *** the Board hopes to establish the reconstruction and operation of the Theater as a project from which the entire community will benefit and of which every citizen of the community can justly be proud.\u201d\nIn the April 1960 edition of \u201cProgress,\u201d a Roosevelt publication, Dr. Edward Sparling, University president, reported in his column in pertinent part:\n\u201cEver since Roosevelt University purchased the Auditorium building as its home in 1946 we have held the theater itself in trust for the people of Chicago.\n* * *\nThe recent action of the Board of Trustees, in granting permission to an independent civic group \u2014 the Auditorium Theater Council \u2014 to restore and operate the Auditorium Theater, frees Roosevelt University of the financial burden carried these years, and also frees it from any financial liability in regard to the restoration and operation of the theater. It makes available to the people of Chicago this added cultural and educational facility.\nThe Auditorium Theater Council is taking a large burden from the University\u2019s shoulders, leaving all those dedicated to the academic program free to develop and expand the educational sendee to the community for which the University was founded and for which it lives.\u201d\nAlso, President Sparling wrote a letter to the Chicago Tribune, which was printed on April 6, 1960. He stated that the University \u201chas held the theater in trust for the community.\u201d\nAdditionally, Spachner spoke at a 1961 fund-raiser. There, Spachner described to potential donors the goals of the Council and referred to the Theatre as a community treasure \u201cheld in trust.\u201d In a January 2, 1962, letter, Elmer Gertz, principal drafter of the resolution, referred to a \u201ctrust imposed upon the property.\u201d\nThese statements do not constitute unequivocal evidence that Roosevelt intended to create an express charitable trust though the 1960 resolution. None of these statements refer to the resolution creating a trust. To the contrary, most of these statements declare that Roosevelt held the Theatre \u201cin trust\u201d or was cognizant of the \u201cpublic trust\u201d that ownership of the Theatre involved. \u201cA charitable trust is not created unless the settlor manifests an intention to impose enforceable duties. *** A charitable trust is not created if the settlor manifests an intention to impose merely a moral obligation.\u201d Restatement (Second) of Trusts \u00a7 351, Comment c (1959). Terms such as \u201cheld in trust\u201d or \u201cpublic trust\u201d can be loosely made and could broadly refer to other relationships. See Restatement (Second) of Trusts, ch. 1, topic 2, at 15 (1959).\nFor example, Gertz\u2019s letter of January 2, 1962, states in pertinent part:\n\u201cBy resolution of its governing body, Roosevelt University created an agency, The Auditorium Theatre Council, and authorized this agency to raise funds to restore the Auditorium Theatre, to carry on the restoration out of the funds so raised, and to operate the Theatre when restored.\u201d (Emphases added.)\nGertz opined that pledges of funds had become enforceable promises and that Roosevelt was obligated to proceed with the restoration and subsequent operation of the Theatre. He further opined:\n\u201cThis obligation on the part of the University will continue so long as the Theatre continues to serve the purposes for which it was restored and without financial drain on the University. The University could not destroy the trust imposed upon the property by a sale of the Theatre to a private corporation or by demolition of the building.\u201d (Emphasis added.)\nAgain, this evidence speaks of a \u201ctrust\u201d on the part of Roosevelt, not the Council. Indeed, the letter expressly states that the resolution created an agency relationship with the Council. This is consistent with Gertz\u2019s January 21, 1960, letter to Roosevelt\u2019s attorney, in which he stated: \u201cIt is the consensus of all involved in this situation that it is best not to form any separate *** trust or other legal entity, but to proceed in the matter set forth in the resolution.\u201d\nWe note that Gertz testified at trial. During his testimony, he referred to the resolution as constituting \u201ca trust intended for the Auditorium Theatre.\u201d The trial court expressly weighed Gertz\u2019s statements that were contemporaneous with the resolution, assessed the credibility of his trial testimony, and assigned little weight thereto. This determination is particularly entitled to deference. See Zaderaka v. Illinois Human Rights Comm\u2019n, 131 Ill. 2d 172, 180 (1989).\nThis evidence could establish that Roosevelt created an agency relationship with the Council. Therefore, it is insufficient to establish an express charitable trust.\nPlaintiffs also posit that statements made to the public show that the University intended to establish a charitable trust. Plaintiffs introduced various statements made in press releases, newspaper articles, fund-raising brochures, and a magazine published by a local savings and loan institution. This material generally discussed the degree of day-to-day autonomy the Council would have in restoring and operating the Theatre and how the Council would utilize donations to it. Plaintiffs called witnesses who testified that they relied on these communications in connection with fund-raising.\nHowever, independence of spirit or conduct is not determinative of the Council\u2019s legal status as intended by Roosevelt through the resolution. Determinative of a principal-agent relationship is whether the principal has the right to control the actions of the agent, not whether the principal actually exercises that right. Darner v. Colby, 375 Ill. 558, 560-61 (1941); See Reith v. General Telephone Co. of Illinois, 22 Ill. App. 3d 337, 339 (1974) (and cases cited therein).\nIn this case, Roosevelt gave the Council, as with many types of agents, broad day-to-day authority to conduct its responsibilities. However, the question is not the extent of the Council\u2019s day-to-day authority over the Theatre, but rather whether Roosevelt retained the right to exercise control if that ever became necessary. Overwhelming evidence proves that Roosevelt intended to and did retain the right to control the actions of the Council. For example, surrounding the 1960 resolution was the \u201cagreed understanding,\u201d based on trustee Gidwitz\u2019s statement, that Roosevelt would exercise unlimited control over the Council and could change the terms of the resolution at any time. Further, the 1971 and 1983 SOPs mandated procedures the Council was to follow for the day-to-day operation of the Theatre and further secured Roosevelt\u2019s control over Theatre operations. The parties were aware that Roosevelt controlled both the Council and the Theatre. Indeed, Roosevelt exercised the ultimate control over the Council by dissolving it.\nThe circumstances giving rise to the 1960 resolution, the circumstances surrounding its adoption by Roosevelt\u2019s board of trustees, and the subsequent acts that show Roosevelt\u2019s intent in adopting the resolution amply and clearly support the findings of the trial court. As noted above, the appellate court in this case reversed and remanded for further proceedings based on what it perceived to be \u201clegal and factual errors in the trial court\u2019s resolution of the charitable trust issue.\u201d 321 Ill. App. 3d at 771. However, the appellate court should have considered all of the facts and circumstances to determine if the trial court\u2019s findings were supported by sufficient evidence. Had the appellate court done so, including any evidence erroneously excluded, it would have upheld the trial court\u2019s findings because they were based on more than sufficient evidence. As the appellate court dissent observed:\n\u201c[T]he evidence, including the exhibits the judge declined to consider, does not lead inexorably to the success of the plaintiffs\u2019 position. The test for the judge\u2019s factual determinations is whether they are supported by the manifest weight of the evidence. [Citation.] 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 \u2018clearly evident\u2019? [Citation.] If we cannot say that, we are engaging in impermissible second-guessing.\u201d 321 Ill. App. 3d at 786-87 (Wolfson, J., dissenting).\nWe agree.\nThe trial court was presented with a considerable amount of evidence, including witness testimony. Ruling against plaintiffs, the court found that Roosevelt, by the 1960 resolution, did not intend to create an express charitable trust, with the Council as trustee for the benefit of the public. Rather, the trial court found that Roosevelt created the Council to act as Roosevelt\u2019s agent.\nIt is true that the record contains some evidence that supports plaintiffs\u2019 claim. However, the record contains ample evidence to support the trial court\u2019s findings. It must be remembered that it was the trial court who saw the witnesses and heard them testify. \u201cIt is axiomatic that a reviewing court may not reweigh the evidence or substitute its judgment for that of the trier of fact. Findings of fact are entitled to deference, and this is particularly true of credibility determinations.\u201d Zaderaka, 131 Ill. 2d at 180; accord Chicago Investment Corp., 107 Ill. 2d at 129. This court has long observed:\n\u201c \u2018Underlying this rule is the recognition that, especially where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. We may not overturn a judgment merely because we might disagree with it or might, had we been the trier of facts, have come to a different conclusion.\u2019 \u201d Greene v. City of Chicago, 73 Ill. 2d 100, 110 (1978), quoting Schulenburg v. Signatrol Inc., 37 Ill. 2d 352, 356 (1967).\nRegardless of which particular pieces of evidence the trial court may have cited in its decision, the court\u2019s findings were supported by evidence. Given the entire record on appeal, we cannot say that the trial court\u2019s factual findings were against the manifest weight of the evidence.\nIn this appeal, the controlling issue is whether Roosevelt intended to create an express charitable trust. The trial court\u2019s finding, supported by ample evidence, that Roosevelt did not so intend controls the disposition of the remaining issues.\nB. Remaining Trust Elements\nTwo additional requirements of an express trust are: the existence of a definite subject matter or trust property, sometimes referred to as the corpus of the trust, and delivery of the trust corpus to the trustee. Zukerman, 218 Ill. App. 3d at 329.\nIn this case, the trial court determined: \u201c[T]he Theatre cannot be the corpus of the trust because Roosevelt has held title in the Theatre since it purchased it in the 1940\u2019s and has safeguarded its right, title, and interest since that time.\u201d The court ruled that as a matter of law, a trust corpus was limited to tangible property and interests in real property and other intangibles could not be held in trust. Thus, the trial court concluded that the right to restore and operate the Theatre could not constitute the trust corpus.\nFurther, the trial court found that the alleged trust failed for lack of delivery of the trust corpus. According to the court, plaintiffs failed to show that Roosevelt had ever relinquished its right, title and interest in the Theatre. The trial court also found that its determination that there was no charitable trust obviated the need to consider the remaining requirements of an express trust.\nThe appellate court assigned error to the trial court\u2019s legal conclusion that the right to restore and operate the Theatre could not be the corpus of an express charitable trust. 321 Ill. App. 3d at 776-78. The appellate court noted that, \u201c[i]n rejecting the fact that the right to operate, restore and maintain the Theatre could constitute the corpus of the trust, the court incorrectly analyzed the issue of delivery of the trust corpus.\u201d 321 Ill. App. 3d at 778. The appellate court also assigned error to the trial court\u2019s failure to consider the remaining trust elements. \u201cWith that approach the trial court failed to consider a variety of circumstances that indicate trust intent contrary to the recognized principle of law that proof of intent may be demonstrated by surrounding circumstances.\u201d 321 Ill. App. 3d at 779. The appellate court held that, based on these perceived errors, the trial court\u2019s conclusion that there was no express trust was clearly erroneous. 321 Ill. App. 3d at 779.\nWe disagree. The appellate court dissent correctly reasoned:\n\u201cI do not agree the trial judge\u2019s 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\u2019s first finding that there was no such intent had nothing to do with the corpus issue.\n* * *\nLack of a permissible corpus was a second, alternative reason offered by the trial judge. It is not the sine qua non of his decision.\u201d 321 Ill. App. 3d at 787 (Wolfson, J., dissenting).\nThe record supports this position.\nThe trial court expressly found: \u201cOne thing was abundantly clear at the time of the passing of the 1960 Resolution \u2014 The Board of Trustees of Roosevelt was not going to create anything that would diminish their interest in or power over the Theatre.\u201d (Emphasis added.) Thus, the trial court expressly determined that Roosevelt did not intend to create a trust of any sort, regardless of what the corpus might be, how that corpus would be delivered, and whether the remaining trust elements were present. \u201cIn any event, we need not accept the trial court\u2019s legal conclusion, as long as its factual determinations are supported by the record. As stated above, the relevant findings were amply supported in this case. Thus, there is no basis for any finding of error.\u201d People ex rel. Illinois Historic Preservation Agency v. Zych, 186 Ill. 2d 267, 282 (1999).\nThe trial court found that Roosevelt did not intend to create a trust of any sort. This finding, supported by ample evidence, compels the conclusion that no trust was created, and obviates consideration of the remaining trust elements. See, e.g., Wilkening, 109 Ill. App. 3d at 941-42.\nIII. Remaining Issues\nA. Agency\nThe appellate court assigned error to the trial court\u2019s finding that Roosevelt, through the 1960 resolution, intended to create an agency relationship with the Council. The appellate court concluded: \u201cFor the reasons previously discussed, we cannot say the factual and legal errors which formed the basis of the [trial] court\u2019s analysis regarding the trust issue did not erroneously cause the court to find [an] agency relationship.\u201d 321 Ill. App. 3d at 780. However, for the reasons earlier stated in this opinion, we conclude that the trial court\u2019s finding of agency, amply supported by the evidence, must be upheld. See Zych, 186 Ill. 2d at 282.\nB. Plaintiffs\u2019 Alternative Contentions\nSince the appellate court reversed the trial court and remanded on the express charitable trust claim, the appellate court expressly declined to address plaintiffs\u2019 alternative claims of relief. 321 Ill. App. 3d at 780-81. Plaintiffs assert them here; none are meritorious.\nPlaintiffs contend that we should declare a constructive trust over ATC Inc.\u2019s funds, to ensure that representations to the donating public are carried out and donations are not diverted. A constructive trust is one raised by operation of law as distinguished from an express trust. Suttles v. Vogel, 126 Ill. 2d 186, 193 (1988). A constructive trust is an equitable remedy that may be imposed to redress unjust enrichment caused by a party\u2019s wrongful conduct. Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co., 114 Ill. 2d 278, 293 (1986). The proceeds of the alleged wrongful conduct must exist as an identifiable fund traceable to that conduct, such that it can become the res of the proposed trust. People ex rel. Nelson v. Bates, 351 Ill. 439, 443 (1933); Moore v. Taylor, 251 Ill. 468, 472-73 (1911).\nIn this case, the funds at issue are donations not from the public but rather from Theatre operating revenues. As the trial court found:\n\u201cIt is also clear to this Court that [defendants] have never *** assumed control over any public contributions to the Theatre, never interfered with any of the [appurtenances] of the Theatre, nor jeopardized the Theatre continuing as a cultural center for the public\u2019s benefit. Significantly, there has been no injustice nor injury to the public as their monies, gifted upon the Theatre, were expended, for that purpose and that purpose only.\n* * *\nThe only thing that cannot be done is spend donations given to the Theatre, by the public, for anything but the Theatre. However, this is not an issue in this case. There is no evidence that Roosevelt ever attempted to do that. No one has ever said that in this lawsuit. They may have said it to the media, but never in this suit.\u201d\nMoreover, the trial court ordered that all donations to the Theatre must be accounted for and restricted to Theatre use. We agree with the appellate court dissent (321 Ill. App. 3d at 788 (Wolfson, J., dissenting)) that there is no evidence of an identifiable fund traceable to any wrongful conduct in this case. See In re Estate of Franke, 124 Ill. App. 2d 24, 33-34 (1970). Accordingly, this claim fails.\nWe consider plaintiffs\u2019 next three claims collectively. Plaintiffs claim an express bilateral contract. Plaintiffs contend that the 1960 resolution and the seven-point statement constituted a contract between Roosevelt and the Council, and ATC Inc. as successor, which was later amended by the 1971 and 1983 SOPs.\nPlaintiffs claim that Roosevelt is equitably estopped to deny the authority of ATC Inc. to operate the Theatre. Plaintiffs contend that although Roosevelt purportedly reserved the right to terminate any allegedly unauthorized conduct by ATC Inc., Roosevelt never took any action. According to plaintiffs, ATC Inc. relied upon Roosevelt\u2019s inaction and the University is now estopped from denying ATC Inc.\u2019s \u201ccontinuing right to operate the Theatre.\u201d\nPlaintiffs also claim a license by estoppel. They contend that Roosevelt granted the Council, and now ATC Inc., a license to restore and operate the Theatre and that Roosevelt is estopped from revoking the license.\nFor plaintiffs to prevail on any of these theories of entitlement to control over the Theatre, they must prove that the Council was granted and held rights or interests in the Theatre greater than that retained by Roosevelt, which were then legitimately transferred to ATC Inc., and that those rights were not revocable. Without these legal and factual prerequisites, plaintiffs\u2019 claims cannot succeed.\nPlaintiffs contend that the Council and ATC Inc. became \u201cfused.\u201d Plaintiffs argue that the role of ATC Inc. gradually expanded subsequently to its creation and eventually \u201ctook over the rights and duties of the unincorporated Council\u201d as its \u201csuccessor.\u201d Plaintiffs rely on ATC Inc.\u2019s bylaws as empowering it to operate the Theatre. The bylaws state that ATC Inc.\u2019s purposes are, inter alia, \u201c[t]o restore[,] modernize and operate the Auditorium Theatre.\u201d As additional proof, plaintiffs point to contracts that ATC Inc. entered into with vendors and others in its own name.\nWe cannot accept this contention. All of plaintiffs\u2019 claims of control fail because neither Roosevelt nor the Council ever granted to ATC Inc. the right to restore and operate the Theatre.\nThe trial court found as follows. Although Roosevelt and ATC Inc. were in negotiations regarding their relationship to the Theatre, by the time the present lawsuit was filed, no transfer of rights to or control of the Theatre had been accomplished. The trial court found that ATC Inc. was solely a fund-raising arm, initially of the Council, and now of the AT of RU. The court further found:\n\u201c[Plaintiffs] ask this court to assert that ATC, Inc. has ownership rights to all the funds and assets in the Theatre. They maintain that [the Council] and ATC, Inc. were blended together and that they became one and they now own the funds and the assets of the Theatre. It is true the groups usually had the same membership. However, these groups had different minutes, reported to the IRS in different ways, were established for different purposes and were treated differently by the trustees of Roosevelt. Even most of the group opposing Roosevelt, when called upon to testify, indicated that they recognized and reported the differences between the [Council] and ATC, Inc. The overwhelming amount of evidence clearly showed that the groups never merged. ATC, Inc. never had any right to governance. All they could do is raise money for the restoration of the Theatre. They never had any rights to the funds. After reviewing the documents, after hearing the testimony, after examining ever[y] piece of evidence, the Court finds that all these counts fail. ATC, Inc. has no ownership rights, there is no equitable or promissory estoppel and the transfer of funds to Roosevelt, from [the Council] and ATC, Inc. is proper.\u201d\nAmple evidence supports the trial court\u2019s findings.\nWe earlier recounted the circumstances surrounding the creation of ATC Inc. and its relationship with Roosevelt and to the Theatre. This evidence includes the following. By its resolution, Roosevelt\u2019s board of trustees expressly authorized the incorporation of ATC Inc. \u201cfor fund raising purposes only.\u201d This sole purpose of ATC Inc. is reflected in its articles of incorporation. The 1983 SOPs distinguished the identity and function of the Council from those of ATC Inc. and expressly stated that the sole purpose of ATC Inc. was to solicit funds for the Theatre.\nThis evidence includes ATC Inc.\u2019s own actions. In 1993, ATC Inc. represented to the IRS that the Council operated the Theatre as a unit of Roosevelt and that ATC Inc. did not operate the Theatre. Indeed, in their trial testimony, members of ATC Inc. admitted that ATC Inc.\u2019s negotiations with Roosevelt to purchase or lease the Theatre from Roosevelt: (1) were attempts to gain the control over the Theatre that it lacked; and (2) would have been \u201cunnecessary and superfluous\u201d had ATC Inc. actually had control over the Theatre. Indeed, as John Blew, ATC Inc. and Council secretary acknowledged to Roosevelt: \u201cThere is no question but that the University owns the Theatre and controls the Council \u2014 period.\u201d Also, the trial court found that the language in ATC Inc.\u2019s bylaws, which purportedly allows ATC Inc. to do more than raise funds, was \u201cinconsistent with all the other evidence presented.\u201d The court found that ATC Inc.\u2019s articles of incorporation limited its corporate purpose to fund-raising. Any action by ATC Inc. to operate the Theatre was ultra vires. Ample evidence supported this finding. All of plaintiffs\u2019 alternative claims were based on the erroneous factual premise that ATC Inc. legitimately operated the Theatre. More than sufficient evidence supports the trial court\u2019s rejection of this premise.\nThe trial court\u2019s findings are not against the manifest weight of the evidence. See Leonardi, 168 Ill. 2d at 106. We find no basis to disturb the trial court\u2019s rejection of these claims. See Zych, 186 Ill. 2d at 282.\nIn response to these findings, ATC Inc. invokes this court\u2019s equitable power. \u201cCourts of equity possess original and inherent power to recognize, execute and control trusts and trust funds.\u201d Village of Hinsdale v. Chicago City Missionary Society, 375 Ill. 220, 233 (1940). Equity considers the general charitable purpose of a settlor as the substance of the gift and the mode indicated in the trust document for effectuating this purpose as a mere incident of the gift. First National Bank of Chicago v. Elliott, 406 Ill. 44, 55-56 (1950); Missionary Society, 375 Ill. at 233.\nWhere a literal execution of a charity becomes impossible, impracticable, or inexpedient, and the settlor has manifested a general intent to create a charitable trust, a court, in the exercise of its ordinary equity powers, will not allow the trust to fail. Rather, the court will execute the trust cy pres, i.e., as near as the court can according to the trust\u2019s original purpose. Missionary Society, 375 Ill. at 233; Kemmerer v. Kemmerer, 233 Ill. 327, 338-39 (1908); accord Restatement (Second) of Trusts \u00a7 399 (1959). When a definite charitable trust is created, the failure of the particular mode in which it is to be effectuated does not destroy the charity; equity will substitute some other mode so that the substantial intent of the settlor shall not depend on the insufficiency of the formal expression of the trust document. Webb v. Webb, 340 Ill. 407, 420 (1930). Accordingly, a court of equity has the power to substitute one trustee in place of another for the purpose of administering a charitable trust. See Mason v. Bloomington Library Ass\u2019n, 237 Ill. 442, 449 (1908).\nThese principles make clear, as ATC Inc. concedes, that this court\u2019s exercise of its equitable power in this regard is linked to Roosevelt\u2019s trust intent. However, as we previously discussed, the trial court found that Roosevelt did not intend to create a trust of any sort, which finding is supported by ample evidence. Since Roosevelt did not intend, by the 1960 resolution, to create a charitable trust, then there is no charitable trust intent for this court to effectuate.\nAs an alternative request for cross-relief, plaintiffs ask that we reassign this case to a new trial judge on remand. Supreme Court Rule 366(a)(5) permits a reviewing court, in its discretion, to make any order or grant any relief that a particular case may require. 155 Ill. 2d R. 366(a)(5). This authority includes the power to reassign a matter to a new judge on remand. See, e.g., In re Marriage of Smoller, 218 Ill. App. 3d 340, 346-47 (1991); People v. Austin, 116 Ill. App. 3d 95, 101 (1983). Plaintiffs refer to four circumstances that allegedly call into question the trial court\u2019s impartiality. The trial court allegedly ignored principles of trust law and excluded relevant evidence. Also, in the course of ruling on Roosevelt\u2019s counterclaim, specifically the breach of fiduciary count against Eychaner and Weiss, the trial court commented on plaintiff Eychaner\u2019s motive for bringing this litigation. The court found that Eychaner was liable and that Weiss was not. Lastly, subsequently to its decision, the trial court held the Council\u2019s executive director in direct criminal contempt, a ruling which the appellate court reversed.\nWe decline plaintiffs\u2019 request. A trial judge is presumed to be impartial, and the burden of overcoming this presumption rests on the party making the charge of prejudice. See In re Marriage of Petersen, 319 Ill. App. 3d 325, 339 (2001); In re Marriage of Hartian, 222 Ill. App. 3d 566, 569 (1991). \u201cTo conclude that a judge is disqualified because of prejudice is not, of course, a judgment to be lightly made.\u201d People v. Vance, 76 Ill. 2d 171, 179 (1979).\nA judge\u2019s rulings alone almost never constitute a valid basis for a claim of judicial bias or partiality. Liteky v. United States, 510 U.S. 540, 555, 127 L. Ed. 2d 474, 490-91, 114 S. Ct. 1147, 1157 (1994). Allegedly erroneous findings and rulings by the trial court are insufficient reasons to believe that the court has a personal bias for or against a litigant. Hartian, 222 Ill. App. 3d at 569. Also, it is clear that ordinarily the fact that a judge has ruled adversely to a party in either a civil or criminal case does not disqualify that judge from sitting in subsequent civil or criminal cases in which the same person is a party. Vance, 76 Ill. 2d at 178; see Nehring v. First National Bank in DeKalb, 143 Ill. App. 3d 791, 805 (1986).\nRather, the party making the charge of prejudice must present evidence of prejudicial trial conduct and evidence of the judge\u2019s personal bias. Petersen, 319 Ill. App. 3d at 339; Hartian, 222 Ill. App. 3d at 569. This personal bias can stem from an extrajudicial source. United States v. Grinnell Corp., 384 U.S. 563, 583, 16 L. Ed. 2d 778, 793, 86 S. Ct. 1698, 1710 (1966); Petersen, 319 Ill. App. 3d at 339; Hartian, 222 Ill. App. 3d at 569.\nIn this case, plaintiffs do not offer any evidence of judicial bias or prejudice stemming from an outside source. Rather, plaintiffs base their claim on the trial itself. Judicial bias or prejudice can also stem from the facts adduced or the events occurring at trial. Liteky, 510 U.S. at 551, 127 L. Ed. 2d at 488, 114 S. Ct. at 1155. In this regard, the United States Supreme Court has explained:\n\u201c[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.\u201d (Emphases in original.) Liteky, 510 U.S. at 555, 127 L. Ed. 2d at 491, 114 S. Ct. at 1157.\nAccord Petersen, 319 Ill. App. 3d at 340; People v. Damnitz, 269 Ill. App. 3d 51, 57 (1994).\nThe four circumstances to which plaintiffs refer as evidence of judicial bias do not display such deep-seated favoritism or antagonism that would make fair judgment impossible. Rather, the circumstances arise in the context of allegedly erroneous findings and rulings, which are insufficient to show judicial bias against plaintiffs. Further, the trial court expressly based its remarks regarding Eychaner on his credibility as a witness, \u201cwhich is clearly within the purview of the trial court.\u201d McCormick v. McCormick, 180 Ill. App. 3d 184, 194 (1988). Accordingly, we decline plaintiffs\u2019 request to reassign this case to another judge on remand.\nCONCLUSION\nFor the foregoing reasons, the judgment of the appellate court, which reversed the order of the circuit court of Cook County, is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.\nAppellate court judgment reversed;\ncircuit court judgment affirmed;\ncause remanded.\nJUSTICE RARICK took no part in the consideration or decision of this case.\nWe note that plaintiffs, as appellees in this court, claim that this court lacks jurisdiction in this case. Plaintiffs contend that defendants failed to perfect their appeal to this court in compliance with Supreme Court Rule 315(a). The arguments raised in connection with this issue were the very same arguments presented to us in plaintiffs\u2019 motion to strike defendants\u2019 petition for leave to appeal. We denied that motion, and we see no reason to reconsider our decision.", "type": "majority", "author": "JUSTICE FREEMAN" } ], "attorneys": [ "Stanley B. Eisenhammer, of Hodges, Loizzi, Eisenhammer, Rodick & Kohn, of Arlington Heights, for appellant Theodore Gross.", "William F. Conlon, Susan A. Stone and Neil Wyland, of Sidley, Austin, Brown & Wood, J. Timothy Eaton, of Ungaretti & Harris, and David A. Epstein, all of Chicago, for appellant Roosevelt University.", "William R. Quinlan, James R. Carroll, James A. Niewiara, Jean M. Prendergast and Martin J. O\u2019Hara, of Quinlan & Carroll, Ltd., and Donald B. Hilliker and Marie A. Halpin, of McDermott, Will & Emery, all of Chicago, for appellees Fred Eychaner and Berry Lou Weiss.", "Terry M. Grimm, Julie A. Bauer and Mary Pat Benz, of Winston & Strawn, of Chicago, for appellee Auditorium Theatre Council.", "Frank G. Mares, of Chicago, for amicus curiae DePaul University.", "Mary Anne Smith, of Chicago, for amicus curiae Illinois Institute of Technology.", "Richard E Friedman, of Chicago, for amicus curiae Landmarks Preservation Council of Illinois." ], "corrections": "", "head_matter": "(No. 91496.\nFRED EYCHANER et al., Appellees, v. THEODORE GROSS et al., Appellants.\nOpinion filed October 3, 2002.\nRARICK, J., took no part.\nStanley B. Eisenhammer, of Hodges, Loizzi, Eisenhammer, Rodick & Kohn, of Arlington Heights, for appellant Theodore Gross.\nWilliam F. Conlon, Susan A. Stone and Neil Wyland, of Sidley, Austin, Brown & Wood, J. Timothy Eaton, of Ungaretti & Harris, and David A. Epstein, all of Chicago, for appellant Roosevelt University.\nWilliam R. Quinlan, James R. Carroll, James A. Niewiara, Jean M. Prendergast and Martin J. O\u2019Hara, of Quinlan & Carroll, Ltd., and Donald B. Hilliker and Marie A. Halpin, of McDermott, Will & Emery, all of Chicago, for appellees Fred Eychaner and Berry Lou Weiss.\nTerry M. Grimm, Julie A. Bauer and Mary Pat Benz, of Winston & Strawn, of Chicago, for appellee Auditorium Theatre Council.\nFrank G. Mares, of Chicago, for amicus curiae DePaul University.\nMary Anne Smith, of Chicago, for amicus curiae Illinois Institute of Technology.\nRichard E Friedman, of Chicago, for amicus curiae Landmarks Preservation Council of Illinois." }, "file_name": "0228-01", "first_page_order": 246, "last_page_order": 300 }