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In Re Estate of Pinckard

OPINION FILED SEPTEMBER 30, 1980.

IN RE ESTATE OF CHARLES J. PINCKARD, SR., DECEASED. — (CHARLES J. PINCKARD, JR., ADM'R WITH WILL ANNEXED OF THE ESTATE OF CHARLES J. PINCKARD, SR., PLAINTIFF-APPELLEE,

v.

JEWEL S. LAFONTANT ET AL., RESPONDENTS-CONTEMNORS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT A. SWEENEY, Judge, presiding.

MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Appellants, Jewel LaFontant, Herbert Fisher, and Earle Malkin, prosecuted two appeals, consolidated here, from two orders entered in the probate division of the circuit court of Cook County. One order found appellants in contempt of court and committed them to jail until they paid over to the administrator of the estate of Charles Pinckard the sum of $20,400. The other order was entered at the conclusion of a citation proceeding brought pursuant to section 16-1 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 16-1) and commanded the appellants to turn over to the administrator of the estate of Charles Pinckard money and assets in the sum of $20,400 belonging to the estate.

On appeal, we are asked to determine whether these orders were properly entered. We hold they were not and reverse and remand.

We will set out here separately the facts leading up to the two appeals before us. We note that many of the facts involving the two orders appealed from are interrelated and several of the hearings leading up to the appealed orders were held simultaneously. We also note that appellants brought two other appeals from related orders, which appeals were dismissed for want of prosecution. Where necessary, we will point out how the proceedings and orders from the dismissed appeals are related to the orders before us here.

No. 79-151 — Appeal from Contempt and Commitment

Prior to February 1972, the three appellants were members of a law firm named "Stradford, Lafontant, Fisher & Malkin." H. Ernest Lafontant, Jewel Lafontant's husband, was also a member of the firm. It is unclear whether the "Lafontant" named in the firm title was Ernest or Jewel, although both were named as attorneys of the firm on the firm's letterhead. The "Stradford" in the firm name referred to Jewel's father, who was deceased. The firm's name appeared on all correspondence of the firm, was located on the door of the firm's offices, and appeared in several legal publications including the Martindale-Hubbell Law Directory. The firm also had a bank account in the firm's name.

In February 1972, Jewel Lafontant left the law firm to become a delegate to the United Nations. It is apparent that she took certain steps to inform the necessary people, such as her clients, that she was no longer a member of the firm, although her name remained on the letterhead of the firm and remained listed in the Martindale-Hubbell Law Directory. Subsequent to February 1972, Jewel Lafontant had no further dealings with the law firm until mid-1976, after the major events concerning this case had taken place. She also received no money from the firm during the period of her absence.

After Jewel Lafontant's departure, the firm continued to do business in the firm name, with Ernest Lafontant and appellants Malkin and Fisher being active participants in the firm's business. In 1974, the firm became attorneys for the administrator of the estate of Charles Pinckard. This employment was acquired as a result of Ernest Lafontant's long-standing relationship with the family of Charles Pinckard. From 1974 until 1976, the firm performed services for the estate through Ernest Lafontant and appellant Malkin. It is clear from the record that appellant Fisher had nothing to do with the estate.

During the two-year period, certain checks and stocks were turned over to Ernest Lafontant by the administrator of the estate as alleged payments for attorney's fees. Three checks totaling $18,500 and made out to "Stradford, Lafontant, Fisher & Malkin" were given to Ernest Lafontant and apparently were deposited in the firm's bank account. Also, Ernest Lafontant personally received 480 shares of stock valued at $14,400. No petition for attorney's fees was ever filed by Ernest Lafontant or the firm and no order of the court was ever entered in the estate proceedings allowing the payment of these fees. It is clear that Ernest Lafontant never told the administrator that such a petition and order may have been necessary.

In 1976, the administrator of the estate retained new counsel and the law firm was discharged. Shortly thereafter, the new counsel insisted that the firm file a petition for attorney's fees to justify the amounts paid out. (It appears that the court issued a formal order commanding the firm to file a petition for fees, but no such order is contained in the record.) Thereafter, Ernest Lafontant died, but a petition for attorney's fees was filed on behalf of Ernest Lafontant and the law firm of Stradford, Lafontant, Fisher and Malkin seeking fees of $30,500 for services rendered. This petition was filed and verified by appellant Malkin. The administrator of the estate filed an objection to the petition and also filed a motion for a turnover order requesting the court to order the law firm to turn over money and assets belonging to the estate which were allegedly in the possession of the law firm.

Extensive hearings were held at which the only member of the law firm present was Malkin. The hearings disclosed that the law firm was not entitled to the amount requested. The hearings also disclosed that Ernest Lafontant had in fact been the person who had received all of the checks and stocks paid out by the estate as alleged attorney's fees, and that Ernest Lafontant may have committed several legally improper acts during his handling of the estate.

On April 14, 1978, the court issued two orders. (Prior to this time, Jewel Lafontant returned to the law firm and its name was changed to "Lafontant, Wilkins & Fisher.") The first order of the trial court granted the petition for attorney's fees but only to the extent of $12,500. In this order, the trial court made several findings of fact, among which were the following:

(1) That the petitioners, Ernest Lafontant and the law firm of Stradford, Lafontant, Fisher and Malkin, now the law firm of Lafontant, Wilkins and Fisher, had received, without approval of the court, assets belonging to the estate having a total value of $32,900 ($18,500 in cash and stock valued at $14,400);

(2) That during the period of time that the law firm represented the estate the attorneys in the law firm included Jewel Lafontant, Herbert Fisher, Earle Malkin, and Ernest Lafontant;

(3) That the petitioners, including the above attorneys, had obtained and received assets of the estate equaling $20,400 to which they were not entitled and which had not been returned to the estate;

(4) That the petitioners, including the above attorneys, owe the estate $20,400.

This order was later amended in a manner not pertinent to this appeal.

The second order commanded, jointly and severally, the law firm of Lafontant, Wilkins and Fisher, and the individuals Jewel Lafontant, Herbert Fisher, and Earle Malkin, to turn over to the estate the sum of $20,400.

On May 24, 1978, appellants Lafontant, Malkin, and Fisher each filed a special appearance and moved to vacate the orders of April 14 as being entered against them, as individuals, without the court's having obtained personal jurisdiction over them. Appellants contended that they, as individuals, had never submitted their persons to the jurisdiction of the court by the filing of the petition for attorney's fees which had been filed on behalf of Ernest Lafontant and the law firm of Stradford, Lafontant, Fisher and Malkin. Appellants also contended that the firm of Stradford, Lafontant, Fisher and Malkin was not a partnership and was not a recognized legal entity for the purposes of jurisdiction. Appellants concluded that since there was no such legal entity as Stradford, Lafontant, Fisher and Malkin, and since they were not members of any recognized legal entity, no orders could have been directed against them as individuals without the court first having asserted, by service of process or otherwise, personal jurisdiction over them.

Subsequently, the trial court denied the appellants' motion to vacate. Shortly thereafter, the appellants filed a notice of appeal from the denial of this motion and from the April 14 orders. This appeal was dismissed for want of prosecution.

On August 4, 1978, the administrator filed a verified petition for attachment and a rule to show cause as to why appellants should be held in contempt for failure to comply with the April 14, 1978, turnover order. Hearings were held at which appellants renewed their attack on the April 14, 1978, orders as being entered without personal jurisdiction over them as individuals. On September 29, 1978, the court entered an order holding the appellants in contempt and gave them until October 20, 1978, to purge themselves of the ...


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