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06/28/95 EDWARD W. WALTON v. BARBARA THROGMORTON

June 28, 1995

EDWARD W. WALTON, PLAINTIFF-APPELLANT,
v.
BARBARA THROGMORTON, AS EXECUTOR OF THE INSTRUMENT PURPORTING TO BE THE LAST WILL AND TESTAMENT OF ROSEMARY G. WALTON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Union County. No. 92-CH-15. Honorable Mark Clarke, Judge, presiding.

The Honorable Justice Hopkins delivered the opinion of the court: Maag, P.j., and Chapman, J., concur.

The opinion of the court was delivered by: Hopkins

JUSTICE HOPKINS delivered the opinion of the court:

Plaintiff, Edward W. Walton, appeals from the dismissal with prejudice of his petition to set aside the will of his mother, Rosemary G. Walton.

Walton filed a timely petition to set aside his mother's will, claiming that his sister, the defendant and executor of that will, had unduly influenced their mother in the preparation of her will. Defendant filed a motion to dismiss alleging that the petition to set aside the will was defective. The motion to dismiss was denied on February 23, 1993, after Walton amended his petition with leave of court. In May 1993 this cause was set for bench trial September 3, 1993, but was continued on the court's motion and reset for November 5, 1993. Twenty-one days prior to the November 5, 1993, trial, Walton's first attorney of record, Sheila Simon, was allowed to withdraw. The case was reset to February 3, 1994, on a motion by Simon. At a status hearing on December 3, 1993, Walton's second attorney, James Hopkins, entered his appearance. On January 31, 1994, Hopkins was allowed to withdraw as Walton's counsel, but the trial court refused at this time to continue the bench trial that was set for February 3, 1994. Walton objected to that refusal in a letter to the court, claiming a violation of Supreme Court Rule 13(c). 134 Ill. 2d R. 13(c).

On February 3, 1994, the date of trial, Walton's third counsel of record, Patrick Hewson, entered his appearance and requested a continuance, citing inadequate amount of time to prepare. The continuance was granted over defendant's objection. The court ordered Walton to pay the costs of trial preparation through January 31, 1994. Also at this hearing, the court ordered all discovery to be completed by February 23, 1994, and then reset the trial to March 24, 1994.

Hewson moved to withdraw on February 22, 1994. This was Walton's third attorney to move to withdraw within a period of four months and 10 days. Walton had been represented by counsel at all the hearings and on all trial dates, although he had never personally appeared in court. On February 23, 1994, the date by which discovery was to be completed, defendant served Walton with a notice to appear, pursuant to Supreme Court Rule 237 (134 Ill. 2d R. 237), compelling Walton:

"to appear before the Circuit Court of Union County on February 25, 1994, at 10:00 a.m., and to produce the following documents:

1. Evidence of attorney's fees paid to all prior counsel, including but not limited to Sheila Simon, James Hopkins, Herbert McMeen, and Patrick Hewson."

At the February 25, 1994, hearing on Hewson's motion to withdraw, Walton did not appear and discovery remained incomplete, in that depositions of the defendant and defense counsel's secretary had not been taken. During the withdrawal hearing, Hewson advised the court that he was not given authority to conduct discovery or otherwise engage in any activity beyond securing the continuance granted on February 3, 1994.

There is no transcript of any proceeding of record except the February 25, 1994, hearing on Hewson's motion to withdraw. During this hearing, the court dismissed Walton's cause of action, stating:

"THE COURT: I am more concerned about the discovery deadline that I set for February 23rd which was an integral part of the continuance ***. I want there to be no question when and if this matter is reviewed as to the context of the decision to allow the Motion to Continue at that time. I specifically found at that time that the Motion to Continue should be granted; not because of any violation of discovery rules by the other side, but simply to insure that there would be one last change [sic] for a hearing on this matter on the merits, and to assess costs to be paid by the Plaintiff, because I did not think that there was any good reason for the matter to be continued at that time other than one last chance to try to get this matter heard on the merits. And I specifically ruled at that time that discovery was ordered to be completed by February the 23rd. Now, what I am hearing here today is that discovery is not completed. Is that fair?

MR. HEWSON: That is correct, Your Honor.

THE COURT: And the reason that the discovery has not been completed is because in your client's opinion you were retained solely to obtain a continuance as opposed to any ...


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