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In Re Estate of Hader

OPINION FILED MAY 10, 1983.

IN RE ESTATE OF BRIAN R. HADER, A MINOR (THE HANOVER INSURANCE COMPANY, PETITIONER-APPELLEE,

v.

ROSELLE STATE BANK & TRUST COMPANY, RESPONDENT-APPELLANT (COOK COUNTY, APPELLEE)).



Appeal from the Circuit Court of Cook County; the Hon. Alvin A. Turner, Judge, presiding.

PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

This appeal arises from a February 23, 1981, order of the trial court denying the appearance of Rooks, Pitts, Fullagar and Poust (Rooks) as attorneys on behalf of Roselle State Bank and Trust Company (Roselle) in a citation proceeding pursuant to section 16-1 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 16-1). By the February 23 order, the trial court also denied Roselle's motion to vacate an October 14, 1981, order finding Roselle in contempt of court for its failure to comply with a citation to discover information to produce documents pursuant to section 16-1. Roselle was assessed a fine of $1,500.

The following issues are raised on appeal: (1) was the trial court's order of February 23, 1982, a final and appealable order subject to the review of this court; (2) does this court lack jurisdiction to review the October 14, 1981, contempt order of the trial court; (3) was Rooks properly denied leave to file its appearance; (4) did the trial court abuse its discretion when it found Roselle to be in civil contempt of court; and (5) is Roselle's request for attorney fees properly before the court?

The underlying facts of this case are as follows: James R. Hader (Hader) was appointed plenary guardian of the estate of his son, Brian, on October 15, 1980. Brian's estate consisted of $182,190.85 received as settlement of a personal injury suit. John T. Conroy was attorney for Hader and on February 17, 1981, Conroy filed a petition requesting that the probate court issue a citation to Hader to produce all records concerning the property of Brian Hader, appoint a special administrator for Brian and remove Hader as plenary guardian.

As a result of Conroy's petition, a citation was issued against Hader ordering him to appear before the court and appointing Leon M. Despres as guardian ad litem (GAL) for Brian. The GAL notified the Hanover Insurance Company (Hanover), the surety of Brian's estate, that there was evidence that the estate was in jeopardy and requested that Hanover join in efforts to protect the estate. James M. Corcoran, Jr. entered his appearance as attorney for Hanover on April 14, 1981.

On April 14, 1981, James R. and Janice K. Hader were examined under oath and disclosed that two bank accounts at Roselle State Bank and Trust Company (Roselle) contained the majority of Brian's estate. Judge Alvin Turner issued an order on April 28, 1981, restraining the Haders from removing funds from these accounts and ordering evidence of ownership of these accounts to be assigned to Hanover or to the GAL.

On June 29, 1981, Corcoran filed a petition requesting that three citations to discover information and to produce documentation issue to Manning Savings and Loan Association (Manning), Palatine National Bank (Palatine) and Roselle. That same day, the citations were issued, returnable on July 23, 1981, requiring an appearance on behalf of the three named institutions for purposes of examination regarding knowledge of the property of Brian and requesting the production of all information in their possession and control regarding the property of Brian. The form citation contained a small print admonition concerning exposure to contempt of court for failure to comply with the citation. Each citation was timely served by the sheriff of each county of the residence of the three respondents.

On July 23, 1981, Manning appeared in court and a hearing took place. Palatine transmitted information to Corcoran pursuant to the citation but did not appear at the hearing. As a result of Roselle's failure to appear or respond adequately, Corcoran petitioned for, and the court issued, an order directing the clerk of the court to issue a citation for rule to show cause why Roselle should not be held in contempt of court for its failure to respond to the citation or appear at the July 23 hearing. The return date of the rule to show cause was September 10, 1981. On September 10, a hearing was held on the issue of contempt. The testimony from that hearing shows that on July 24, an employee of Roselle discovered that the citation for the July 23 hearing had been misfiled. Employees of Roselle testified that they had attempted to contact Corcoran in order to comply with the citation by providing the requested information. Although Corcoran acknowledged receiving these phone calls, he refused to talk to the employees, claiming that to do so would violate Rule 7-104(a) of the Illinois Code of Professional Responsibility (87 Ill.2d R. 7-104(a)), which prohibits communications, absent the opposing attorney's consent, by an attorney during the course of representation with a party he knows to be represented by a lawyer in that matter. At the September 10 hearing, Roselle produced some of the documentation requested by Hanover in the citation. Roselle had previously transmitted to Hanover additional information requested by the citation.

Edward D. Mraz, one of Roselle's attorneys, had not filed an appearance to represent Roselle prior to the September 10 hearing, nor did he request permission at the hearing to do so. There was no objection to Mraz' representation, but Corcoran suggested that an appearance be filed on behalf of the banks to facilitate continuing notice in the matter. The citations issued were continued, and Corcoran revealed that additional information was yet to be provided by both Palatine and Roselle.

Following the discovery hearing, argument was heard on the rule to show cause why both banks should not be held in contempt. Judge Turner concluded that both banks were in civil contempt of the court. Roselle was fined $1,500 and Palatine was fined $750. Judgment for contempt was entered on October 14, 1981.

On November 12, 1981, Rooks filed a written appearance on behalf of Roselle and the following pleadings: (1) a motion to vacate the memorandum of order and judgment for contempt; and (2) a memorandum in support of the motion to vacate. Each of these pleadings revealed that Rooks represented Roselle and contained Rooks' address and identified the attorneys at Rooks' firm handling the Roselle matter. Rooks was involved in subsequent matters on Roselle's behalf, including a motion to certify the report of proceedings from the September 10 hearing, presented to Judge Turner on December 4, 1981, by Stephen D. Sharp of Rooks. Subsequent to this motion, several continuances on certain of Rooks' motions were made and notices of such continuances were filed. Upon the insistence of Corcoran, on January 7, 1982, Rooks filed a motion for leave to file an appearance as additional counsel. On January 29, 1982, Hanover filed a petition to strike the appearance of Rooks and to strike Roselle's motion to vacate the contempt order on the basis that Rooks' appearance was void and therefore the motion to vacate was of no effect. Hanover alleged the appearance originally filed was void for failure to comply with circuit court of Cook County Rule 1.4.

A hearing on Hanover's motion to strike the pleadings of Roselle and Rooks' appearance was held on February 23, 1982. At the beginning of the February 23 hearing, Alan S. Ganz of Rooks turned over to the GAL the last of the assets of the Hader estate in Roselle's possession. The focus of the hearing then turned to Rooks' appearance and Roselle's motion to vacate the contempt order. Following argument, the trial court determined that Rooks had failed to comply with the requirements of circuit court Rule 1.4 which reads as follows:

"1.4 Appearance and Withdrawal of Attorneys

(a) Addressing the court — An attorney shall file his appearance before he addresses the court unless he is presenting a motion for leave ...


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