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05/18/95 ESTATE ANNA V. FRENCH v. CHARLES A. FRENCH

May 18, 1995

IN RE ESTATE OF ANNA V. FRENCH, DECEASED (DEE ANNA MUSGRAVE ET AL., APPELLEES,
v.
CHARLES A. FRENCH, APPELLANT).



The Honorable Justice McMORROW delivered the opinion of the court: Justice Heiple, dissenting: Justice Freeman, also dissenting: Justice Heiple joins in this dissent.

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

In this appeal we are asked to reconsider the decision in Almon v. American Carloading Corp. (1942), 380 Ill. 524, 44 N.E.2d 592, in which this court held that an order disqualifying a party's counsel for conflict of interest is not subject to immediate appeal.

I

The record reveals the following pertinent information. Anna V. French died in May 1990. Her will nominated Charles A. French (hereafter referred to as Charles) as executor of her estate, and he was later appointed executor by court order. During his period as executor of the estate, Charles was represented by attorney John C. Robison, Jr.

In April 1993, certain of the heirs to Anna French's estate (hereafter referred to as appellees) filed a petition in the circuit court of Wayne County to remove Charles as executor of the estate. The petition alleged that Charles had mishandled estate funds in breach of his fiduciary duties. A few weeks later, attorney Morris Lane Harvey filed a special and limited appearance on behalf of Charles and contested the court's jurisdiction to entertain the appellees' petition to remove Charles as executor.

Shortly thereafter, the appellees filed a motion to disqualify attorney Harvey as Charles' counsel, citing conflict of interest. They claimed that Harvey had provided them with legal advice regarding the formation of a corporation to receive the assets bequeathed to the appellees under the terms of the French will. The appellees claimed that because attorney Harvey had consulted with them and provided them with legal advice regarding the formation of the corporation, attorney Harvey could not represent Charles with respect to their petition to remove Charles as executor of the French estate.

Following briefing and argument, the trial court allowed the disqualification motion and attorney Harvey was disqualified from representing Charles in the probate action involving Anna French's estate. The trial court also denied Charles' motion to reconsider. In its order denying the motion to reconsider, the trial court found no just reason to delay enforcement of or appeal from its ruling. 134 Ill. 2d R. 304(a).

Charles took an appeal from the trial court's disposition. However, the appellate court entered an order that dismissed the action, relying on Almon, 380 Ill. 524, 44 N.E.2d 592, for the proposition that an order disqualifying a litigant's counsel is not subject to immediate appeal in this State. We allowed Charles' petition for leave to appeal (145 Ill. 2d R. 315(a)).

II

Charles argues that this court should overrule Almon. He contends that the rule announced in Almon is too drastic and severe, because it deprives a litigant of counsel he has chosen to represent him during the proceeding. Charles claims that if a disqualification order is not accorded immediate review by the appellate court, the litigant whose counsel is disqualified is effectively denied adequate appellate review of the disqualification order.

The appellees respond that the Almon rule should be retained. The appellees suggest that immediate appeal would cause considerable delay in reaching ultimate resolution of the merits of the parties' underlying dispute, and that the harms from such delay outweigh any value in immediate appellate review of the trial court's disqualification decision.

In Almon, 380 Ill. 524, 44 N.E.2d 592, employees of a freight company, who were members of various local unions, had a dispute with a carloading company. The dispute was later settled and an agreement reached between the parties. Thereafter, a disagreement arose as to the terms of the settlement agreement. Various employees filed suit against the carloading corporation as well as the officials of a local union who had participated in the settlement negotiations. After the defendants filed an answer to the plaintiffs' complaint, the plaintiffs filed a motion to disqualify the defendants' attorney of record. Following a hearing, the trial court allowed the plaintiffs' motion and disqualified the defendants' attorney from representing them during the proceeding. The appellate court denied a motion to dismiss the appeal and considered the cause on its merits.

On review, this court rejected the defendants' argument that the trial court's disqualification order was governed by the rules of interlocutory appeal pertaining to injunctions and appointment of receivers. ( Almon, 380 Ill. at 528-29.) The court noted that the "purpose of an interlocutory injunction is to preserve the rights of some one or more of the parties and continue the property and the rights therein in statu quo until the cause can be disposed of on the merits." ( Almon, 380 Ill. at 529.) The court determined that the disqualification order "has no bearing on the merits of the litigation" and that it was "not of the character" that was intended to be governed by rules permitting an interlocutory appeal from an order granting or denying an injunction. Almon, 380 Ill. at 529.

In addition, this court ruled that the trial court's disqualification order was not immediately final and appealable. It reasoned as follows:

"A judgment or decree is final and reviewable when it terminates the litigation on the merits of the case and determines the rights of the parties. [Citations.] One of the essential elements of finality of a decree is that if affirmed the only thing remaining to do is to proceed to its execution. [Citations.] The order in question had no bearing on the rights of the defendants as to the matters involved in their litigation with the plaintiffs. They were not deprived of the right to be represented by an attorney, for the order made provision for the substitution of counsel of their own ...


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