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08/28/89 Kathy E. Hooks, v. Lawrence T. Bonner Et Al.

August 28, 1989

KATHY E. HOOKS, PLAINTIFF-APPELLANT

v.

LAWRENCE T. BONNER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

543 N.E.2d 953, 187 Ill. App. 3d 944, 135 Ill. Dec. 385 1989.IL.1321

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Quinn, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. MANNING, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

Kathy E. Hooks (plaintiff) appeals the circuit court's dismissal with prejudice of her complaint filed against Lawrence T. Bonner and Earl L. Neal, coadministrators of the estate of Genoa S. Washington, and their surety, Fidelity & Deposit Company of Maryland (defendants), because plaintiff's claim, alleging matters relating to Genoa Washington's estate, was barred by section 24-2 of the Illinois Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 24-2). On appeal plaintiff seeks reversal of the circuit court's order, contending that her claim does not constitute a collateral attack to invoke res judicata principles and the provisions of section 24-2 of the Probate Act and, alternatively, that her collateral attack is not barred under section 24-2 because it sufficiently alleges fraud relating to the prior court's jurisdiction.

Defendant Bonner has not filed an appellate brief in response to plaintiff's appeal. We are not, however, permitted to reverse pro forma a trial court's judgment for an appellee's failure to file a brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

We affirm.

Genoa S. Washington died on October 14, 1972. On October 16, 1972, defendants Bonner and Neal were appointed personal representatives for his estate. Defendant Fidelity, as surety, executed two administrator's bonds on behalf of defendants Bonner and Neal.

On April 14, 1981, plaintiff received $15,000 from defendants. Defendants also issued plaintiff a check on July 20, 1981, for $19,684.59, which she negotiated on July 29, 1981.

On July 30, 1981, Richard Clayter, the estate's attorney, mailed to plaintiff a notice stating that he would present the final account of defendants Bonner and Neal at a court hearing to be held on August 6, 1981. On August 3, 1981, plaintiff's attorney, G. Anderson Montgomery, acknowledged receipt of the notice and requested that the hearing be continued to a later date. The hearing was subsequently continued to August 14, 1981, and a copy of this order, along with the estate's Federal estate tax return and the proposed final account, were sent to Montgomery. In a mailgram dated August 13, 1989, Montgomery acknowledged receipt of the above, but stated "still awaiting complete set of income tax returns . . . for estate."

Neither plaintiff nor her attorney appeared at the August 14, 1981, hearing. A hearing on the final account was held on that date, and the hearing was continued by order of court to August 24 and September 15 for presentation of vouchers and receipts. On September 15, 1981, a final order of discharge was entered by the probate court, closing the estate of Genoa Washington.

Plaintiff's initial complaint filed on August 8, 1983, and four subsequent amended complaints filed through January 1988 were dismissed for failure to state a cause of action. On February 14, 1988, plaintiff filed a sixth-amended complaint in which she alleged several counts, including fraud or negligence in the administration, valuation and distribution of the estate by defendants Bonner and Neal.

On May 27, 1989, Judge Thomas Quinn denied defendants Bonner and Neal's motion to strike and dismiss and granted plaintiff leave to file a seventh-amended complaint adding Fidelity as a defendant. On July 14, 1988, Judge Quinn granted defendants Bonner's and Neal's motions to reconsider the May 27 order and dismissed plaintiff's complaint with prejudice. It found that plaintiff's action was ...


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