In re Martin

Citation2020 IL App (2d) 190140,172 N.E.3d 1176
Decision Date14 July 2020
Docket NumberNos. 2-19-0140 & 2-19-0830 cons.,s. 2-19-0140 & 2-19-0830 cons.
CourtUnited States Appellate Court of Illinois
Parties IN RE ESTATE OF Lillie MARTIN, a Disabled Person (Tina Hiatt, Petitioner and Counterrespondent-Appellee; Paul Martin, Respondent-Counterpetitioner, and Counterrespondent-Appellee; Alan J. Martin, Respondent, Counterpetitioner and Counterrespondent-Appellant).

Alan J. Martin, of Law Offices of Alan J. Martin, LLC, of Chicago, for appellant.

Mari Berlin and Nina Neuber, of Kabbe Law Group, LLC, of Naperville for appellee Tina Hiatt.

No brief filed for other appellee.

Kelli M. Smith, of Law Office of Kelli M. Smith, P.C., of Naperville, guardian ad litem.

JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 This case arises from a guardianship dispute. Three siblings—petitioner, Tina Hiatt, and counterpetitioners, Alan Martin and Paul Martin—all petitioned the trial court for guardianship of the person and property of their mother, Lillian Martin (Lillie). Alan moved to disqualify Tina's attorneys. The court appointed a guardian ad litem (GAL), but Lillie died before a guardian was appointed. Tina, Alan, and Paul each filed a petition for attorney fees; Alan is an attorney and he represented himself during the proceedings. The court granted Tina's and Paul's fee petitions and denied Alan's, and it ordered the approved fees to be paid from a transfer-on-death (TOD) account.

¶ 2 Alan appeals, arguing that (1) the trial court lacked subject-matter jurisdiction to award attorney fees, because Lillie died before the court appointed a guardian, (2) the trial court erred by ordering the approved attorney fees to be paid from a TOD account after Lillie died, (3) the trial court erred by denying his motion to disqualify Tina's attorneys, and (4) the trial court erred by denying his petition for pro se attorney fees. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

¶ 3 I. BACKGROUND

¶ 4 On July 5, 2013, Lillie submitted to a psychiatric-capacity evaluation. In a letter dated July 8, 2013, the psychiatrist who evaluated Lillie opined that she "has testamentary capacity to compose a will and to understand and to sign legal documents."

¶ 5 Prior to November 2013, Lillie's trust provided that her estate would be divided equally among Alan, Tina, and Paul. Alan had assisted his parents with legal issues for many years and was Lillie's power of attorney for health care and for property.

¶ 6 In November 2013, Tina's attorney's law firm, Kabbe Law Group, LLC (Kabbe Law), assisted Lillie in revoking her former estate plan and executing a new estate plan, with Tina having power of attorney for health care and property. The new estate plan established a revocable living trust and a pourover will. The revocable living trust named Lillie's three children as beneficiaries, with Tina to receive 50%, Paul 25%, and Alan 25%.

¶ 7 Lillie had an investment account with UBS, a financial services company. The UBS account was a TOD instrument, with equal shares designated to each sibling. Kabbe Law advised Lillie to move her UBS account into her trust, but this did not occur, because both Alan and Tina represented themselves to UBS as Lillie's power of attorney. Therefore, the UBS account remained a TOD.

¶ 8 In 2017, Tina, Paul, and Alan filed competing petitions to be appointed as guardian of Lillie's person and estate. On August 10, 2017, Tina filed her original petition, alleging that Lillie, born in 1930, had been diagnosed with dementia and mental impairment

and that she lacked sufficient understanding or capacity to make or communicate responsible decisions regarding her care or to manage her estate or financial affairs. Tina stated that Lillie's anticipated gross annual income was $10,500. On August 16, 2017, Tina amended her petition, which was essentially the same as the original petition but stated that Lillie's gross annual income was $20,100. On August 23, 2017, Tina mailed the required notice of her amended petition to Alan and Paul.

¶ 9 On September 8, 2017, the trial court appointed Kelly Smith as GAL for Lillie.

¶ 10 On October 4, 2017, Alan filed his appearance.

¶ 11 Paul and Alan separately filed counterpetitions for guardianship of Lillie, on October 13, and December 20, 2017, respectively. Paul was represented by Michael Powers and Alan represented himself.

¶ 12 On December 12, 2017, the GAL submitted her report to the court stating, in part, that Lillie "is able to tell you what she wants. On my last visit with Lillie on November 30, 2017, she repeatedly said ‘I decide’ and ‘my mind is right.’ She did say that if [she] cannot make decisions, then Tina is the person that she wants to make decisions for her."

¶ 13 On February 22, 2018, the court granted Alan's motion for Lillie's cancer

treatment to be paid from the UBS account.

¶ 14 On March 1, 2018, Alan filed a motion to disqualify Tina's attorneys, Mari Berlin and her law firm, Kabbe Law (Tina's attorneys), and served Kabbe Law with extensive discovery requests.

¶ 15 On March 13, 2018, Kabbe Law filed a motion to quash subpoenas served by Alan. On March 30, 2018, Tina filed her response to Alan's motion to disqualify. Alan did not file a reply.

¶ 16 On April 10, 2018, the GAL filed a motion for the appointment of a third-party guardian of the person and estate of Lillie alleging that the three siblings had competing guardianship petitions, there were conflicting powers of attorney for health care and property, Alan had served the GAL with extensive discovery requests, and Alan had filed numerous and lengthy motions "that prolong[ed] this matter" and depleted Lillie's estate. On the same day, the GAL filed a petition for interim fees.

¶ 17 On April 16, 2018, Alan filed a combined motion seeking, inter alia , to obtain assisted living placement and authorization for funding for Lillie's medical care.

¶ 18 On May 14, 2018, Lillie died,1 before the trial court could hear the competing petitions for her guardianship or hear Alan's motion to disqualify Tina's attorneys.

¶ 19 On June 4, 2018, Kabbe Law, as Tina's attorney, filed a petition for attorney fees incurred from August 4, 2017, to June 1, 2018, in the amount of $18,765.02. Tina had paid $10,000 to Kabbe Law, so the amount due was $8765.02. Tina contended that the amount owed should be paid from the UBS account before those funds would be distributed to the three siblings.

¶ 20 On June 25, 2018, the GAL filed a fee petition for the period of April 1, 2017 to August 17, 2018, in the amount of $9821.

¶ 21 On June 27, 2018, Alan filed a petition for pro se attorney fees and costs, in the amounts of $32,910 and $1506, respectively. The same day, Paul's attorney filed a petition for attorney fees and costs in the amounts of $4407.25 and $1060, respectively.

¶ 22 On June 28, 2018, the court approved the GAL's petition for interim fees.

¶ 23 On July 12, 2018, Paul filed a response opposing Alan's petition for attorney fees. On July 13, 2018, Tina filed her own response opposing Alan's petition for attorney fees, arguing that an attorney is not entitled to fees for representing himself.

¶ 24 On July 13, 2018, Alan filed, inter alia , a response to the GAL's fee petition, arguing that the funds should not be taken from the UBS account. Also, on July 13, 2017, Alan filed his response to Kabbe Law's fee petition, opposing it.

¶ 25 On October 10, 2018, after hearing argument, the trial court dismissed the following pleadings, due to Lillie's death: (1) Alan's attorney fee petition; (2) Alan's motion to disqualify Tina's attorneys; (3) Kabbe Law's motion to quash a subpoena served by Alan; (4) Tina's motion to stay discovery; (5) the GAL's motion for the appointment of a third-party guardian of Lillie's and estate; (6) Alan's motion to obtain assisted living placement and funding authorization for medical treatment; and (7) other pending nonfee motions.

¶ 26 Also on October 10, the trial court granted (1) Tina's motion to spread Lillie's death of record; (2) the GAL's motion for the payment of liabilities, ordering the approved amounts to be paid from the UBS account; (3) Tina's petition for attorney fees for Kabbe Law, approving the amount of $18,765.02 and ordering $8765.02 payable to Kabbe Law and $10,000 and $3115.50 payable to Tina, as reimbursement, all from the UBS account; and (4) Paul's attorney fee petition on behalf of Michael Powers in the amount of $5467.25, allocating $4407.25 to Paul, as reimbursement, and $1060 to Powers, both to be paid from the UBS account. Regarding the approved attorney fees to Tina's attorneys, the trial court stated, "the Court finds that the fees and costs are reasonable and for the benefit of the ward."

¶ 27 On November 8, 2018, Alan filed a motion to reconsider and to vacate the court's four orders of October 10, 2018, awarding attorney fees and designating the UBS account as the source of payment.

¶ 28 On November 20, 2018, the GAL filed another motion for the payment of liabilities, seeking liquidation of assets and alleging that when UBS was presented with the court's order for the payment of fees and costs, a UBS representative refused, explaining that UBS could not liquidate specific holdings without a court order or a decision by all three siblings.

¶ 29 On January 23, 2019, the trial court denied Alan's motion to reconsider and vacate the court's four orders of October 10, 2018 regarding attorney-fee awards and their payment from the UBS account.

¶ 30 On February 22, 2019, Alan filed a notice of appeal regarding the court's January 23, 2019, denial of his motion to reconsider and vacate the four "prior orders of" October 10, 2018.2

¶ 31 On March 6, 2019, the trial court granted the GAL's November 20, 2018, motion for the payment of liabilities, affirming the fees previously approved on October 10, 2018, to be paid from the UBS account, "first paid by cash and then paid by liquidating ‘Calamos Growth Fund &...

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