In re Estate of Kirk

No. 2--96--1487

________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

In re ESTATE OF JOEL F. KIRK, ) Appeal from the Circuit Court
Deceased ) of McHenry County.
)
(Cheryl A. Kirk O'Connor, )
Indiv. and as Guardian of the ) No. 89--P--252
Estate of Joel F. Kirk II, a )
Minor, Lisa Kirk Staver, Lynda )
Kirk Jones, and Debra Lee Kirk ) Honorable
Petitioners-Appellants, v. ) Henry L. Cowlin and
Harris Bank Barrington, N.A., ) Michael J. Sullivan,
Respondent-Appellee). ) Judges, Presiding.
________________________________________________________________

PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The petitioners, Cheryl Kirk O'Connor, individually and as
guardian of the estate of Joel F. Kirk II, a minor, Lisa Kirk
Staver, Lynda Kirk Jones, and Debra Lee Kirk, appeal from the
following orders of the circuit court of McHenry County: (1) the
October 8, 1996, order denying the petitioners' request to remove
Paul Lahti as the attorney representing the estate; (2) the November
21, 1996, order awarding Lahti $26,430 in attorney fees and $536.31
in costs; and (3) the December 4, 1996, order closing the estate and
discharging the executor. For the following reasons, we affirm.
At the outset, we note that this is the second occasion that
this case has been before this court. See In re Estate of Kirk, 242
Ill. App. 3d 68 (1993). As our prior disposition provides an
adequate summary of the factual background and procedural posture
of this case, we repeat only those facts necessary to the
disposition of the instant appeal.
On July 19, 1989, the decedent, Joel F. Kirk, died in the
performance of his duties as an airline pilot during the crash
landing of United Airlines Flight 232 in Sioux City, Iowa. Kirk was
survived by his daughters, Cheryl Kirk O'Connor, Lisa Kirk Staver,
and Lynda Kirk Jones, and two children who were minors at the time
of his death, Debra L. Kirk and Joel F. Kirk II (collectively
referred to as the heirs). On August 22, 1989, prior to the
presentation of the decedent's will for probate, Cheryl O'Connor was
appointed guardian of the estate and person of the minor children
in the circuit court of Boone County.
The decedent's will nominated the First National Bank and Trust
Company of Barrington (now known as Harris Bank Barrington, N.A.)
(bank) and Janet Kirk as executors. The bank was also nominated as
guardian of the estate of Kirk's minor children. Janet Kirk and the
decedent were married and divorced on two separate occasions. Their
second marriage was dissolved on July 13, 1988.
On September 11, 1989, the bank filed a petition in the circuit
court of McHenry County for probate of will and for letters
testamentary. On September 14, 1989, the bank filed a petition in
the circuit court of Boone County seeking to remove Cheryl O'Connor
as guardian of the estate of the minor children.
On September 26, 1989, the circuit court of McHenry County
admitted the decedent's will to probate and appointed the bank as
executor. The bank retained attorney Paul Lahti as its
representative in the probate proceedings.
On September 10, 1990, the heirs filed a petition in the
circuit court of McHenry County seeking removal of the bank as
executor. The petition alleged that the bank had engaged in
numerous improprieties, including: (1) attempting to remove Cheryl
O'Connor as guardian of the estate of Joel Kirk II and Debra Kirk;
(2) mismanaging the inventory and distribution of estate property,
including the decedent's United States Savings Bonds; (3)
mismanaging the sale of the decedent's residence; and (4) incurring
penalties as a result of the late filing and payment of the federal
and state inheritance tax. The heirs contended that the bank had
failed to properly discharge its duties and had wasted and
mismanaged the estate's assets.
The trial court denied the heirs' petition, finding that the
bank's management of the estate had been appropriate. On appeal,
we affirmed the trial court's ruling, holding that the heirs had
failed to present sufficient evidence warranting the removal of the
bank as executor of the estate. See Estate of Kirk, 242 Ill. App.
3d at 79-80. In so holding, we noted that the bank had not acted
improperly in attempting to remove Cheryl O'Connor as guardian of
the estate of the minor children, as it had done so pursuant to its
nomination in the decedent's will to act in this capacity. Estate
of Kirk, 242 Ill. App. 3d at 75. We also held that the estate
suffered no harm as a result of the manner in which the bank sold
the decedent's residence, distributed the savings bonds, or paid the
inheritance tax. Estate of Kirk, 242 Ill. App. 3d at 75-76, 79.
On April 22, 1993, following the issuance of our mandate, the
heirs filed a petition seeking to remove Lahti as the attorney
representing the estate. The heirs alleged that Lahti breached his
fiduciary duty to protect the estate and the interests of the heirs
in the following ways: (1) by filing false pleadings on behalf of
the estate; (2) by soliciting the heirs as clients even though they
were already represented by another attorney; (3) by preparing and
filing a petition to remove Cheryl O'Connor as guardian of the
estate of the minor children; (4) by taking the decedent's savings
bonds from Cheryl O'Connor; (5) by failing to pay the federal and
state inheritance taxes on time; and (6) by attempting to collect
attorney fees arising out of the petition to remove Cheryl O'Connor
as guardian of the estate of the minor children.
On October 8, 1996, following a hearing, the trial court denied
the heirs' petition. The trial court found that the heirs had
waived any alleged conflict of interest objection relating to Lahti
due to their lack of diligence in seeking to remove him as attorney
for the estate. The trial court explained that the alleged conflict
had existed from the beginning of the probate case in September
1989, but that the heirs had permitted the case to proceed for 3«
years prior to filing their petition to remove Lahti. The trial
court also found that Lahti's conduct had not harmed the estate,
commenting:
"[A]s attorney for the estate, Attorney Lahti must act
with due care and protect the interests of the beneficiaries.
*** Although petitioners presented evidence through the
testimony of Cheryl Kirk O'Connor that animosity existed
between at least one of the beneficiaries and Attorney Lahti,
the petitioners failed to present sufficient evidence that
Attorney Lahti failed to protect the interests of the
beneficiaries or did anything contrary to the best interest[s]
of the estate."
On November 21, 1996, over the heirs' objection, the trial
court awarded Lahti $26,430 in attorney fees and $536.31 in costs
to be paid out of the estate. On December 4, 1996, again over
objection, the trial court closed the estate and discharged the bank
as executor. Following the denial of their motion to reconsider,
the heirs filed a timely notice of appeal.
The heirs' primary contention on appeal is that the trial court
erred in denying their petition to remove Lahti as the attorney for
the estate. The heirs argue that Lahti's conduct violated his
fiduciary duty to protect the estate and the interests of its
beneficiaries. The heirs also contend that Lahti's conduct violated
the Illinois Rules of Professional Conduct. 134 Ill. 2d R. 1.1
et seq.
In reviewing a probate court's determination, it is well
settled that all reasonable presumptions will be made in favor of
the trial court and that the burden is on the appellant to
affirmatively show the errors alleged. In re Estate of Elson, 120
Ill. App. 3d 649, 656 (1983). The trial court is in a superior
position to hear and weigh the evidence and determine the
credibility and demeanor of the witnesses. Elson, 120 Ill. App. 3d
at 655. The reviewing court will therefore not reverse a judgment
unless the findings are clearly and palpably contrary to the
manifest weight of the evidence. Elson, 120 Ill. App. 3d at 655.
Although the executor owes a fiduciary duty to the estate and
the beneficiaries, the executor must also defend the terms of the
will and the best interests of the estate. Jewish Hospital v.
Boatmen's National Bank, 261 Ill. App. 3d 750, 763 (1994).
Defending the terms of the will often results in an adversarial
relationship between the estate and some other party. Jewish
Hospital, 261 Ill. App. 3d at 763. Often, the estate's adversary
is a beneficiary of the estate who is contesting the will or making
a claim against the estate or petitioning to have the executor
removed or held liable for the mismanagement of the estate. Jewish
Hospital, 261 Ill. App. 3d at 763.
An attorney representing an estate must give his first and only
allegiance to the estate when such an adversarial situation arises.
Jewish Hospital, 261 Ill. App. 3d at 763. Even though the
beneficiaries of a decedent's estate are intended to benefit from
the estate, an attorney cannot be held to have a duty to those
beneficiaries, due to this potential adversarial relationship.
Jewish Hospital, 261 Ill. App. 3d at 763. Therefore, while the
attorney for the executor owes a fiduciary duty to act with due care
to protect the interests of the beneficiaries, the attorney does not
have an attorney-client relationship with the beneficiaries. In re
Estate of Halas, 159 Ill. App. 3d 818, 825 (1987). With these
principles in mind, we will address each of the heirs' assertions
in turn.
FALSE PLEADINGS
As noted above, on September 11, 1989, the bank filed a
petition for probate of the decedent's will and for letters
testamentary. In response to this petition, the heirs filed a
petition to deny letters of office to the bank. The heirs' petition
alleged that the bank had failed to present the decedent's will for
probate within the time period required by section 6--3(a) of the
Illinois Probate Act of 1975 (Act) (755 ILCS 5/6--3(a) (West 1996)).
On September 15, 1989, Lahti filed a response to the heirs' petition
on behalf of the bank. In this response, the bank alleged that the
delay in filing the decedent's will had been caused by the heirs'
delay in providing certain information necessary for the preparation
of the petition. The bank also alleged that the delay had been
caused by the dispute over the appointment of the guardian of the
estate of the minor children. The heirs argue that such allegations
were fabricated by Lahti in an attempt to justify the bank's
inaction.
As the heirs correctly note, although an attorney has a duty
to represent his client zealously, he must do so within the bounds
of the law. 134 Ill. 2d R. 1.2(f)(2). The Illinois Rules of
Professional Conduct forbid an attorney from knowingly making a
false statement of law or fact in his representation of a client.
134 Ill. 2d R. 3.3(a)(4). Additionally, when appearing in a
professional capacity before a tribunal, an attorney shall not make
"a statement of material fact or law to a tribunal which the lawyer
knows or reasonably should know is false." 134 Ill. 2d R.
3.3(a)(1).
Our review of the record reveals that, during the hearing on
their petition to remove Lahti, the heirs failed to present any
evidence demonstrating that the allegations contained in the bank's
response were false. As the sole support for their argument on
appeal, the heirs rely on certain testimony elicited during the
hearing on their petition to remove the bank as executor. This
testimony, however, was not introduced into evidence during the
hearing on the heirs' petition to remove Lahti. As this testimony
was not before the trial court in making its ruling, we decline to
consider it on appeal.
Moreover, it is also apparent that the trial court was not
persuaded by the heirs' allegations of false pleading. After
conducting a hearing on the heirs' petition to deny letters of
office, the trial court expressly found that the bank had
demonstrated good cause for its failure to timely present the will
as required by section 6--3(a) of the Act (755 ILCS 5/6--3(a) (West
1996)). In so ruling, the trial court obviously determined that the
evidence presented conformed to allegations contained in the bank's
response.
The heirs also complain of the pleadings contained in the
bank's response to the petition to remove executor. Once again,
however, our review of the record reveals that the heirs failed to
present any evidence at the hearing demonstrating that the
allegations contained in this pleading were inaccurate. To the
contrary, the testimony elicited at the hearing confirmed the
accuracy of the allegations and denials prepared by Lahti on behalf
of the bank. Additionally, we note that, in our disposition of the
previous appeal filed in this case, we expressly held that this
particular pleading was in compliance with Supreme Court Rule 136(a)
(134 Ill. 2d R. 136(a)). See Estate of Kirk, 242 Ill. App. 3d at
72. In light of these findings and lacking any other evidence
demonstrating that these pleadings contain false allegations, we
decline to disturb the trial court's finding as to this issue.
SOLICITATION OF HEIRS AS CLIENTS
The heirs also argue that Lahti violated the Illinois Rules of
Professional Conduct when he attempted to solicit Cheryl O'Connor
as a client even though he knew that she was already represented by
another attorney. This alleged solicitation occurred on September
8, 1989, during a telephone conversation between Lahti and the
decedent's former wife, Janet Kirk. During this conversation, Lahti
called Kirk to inquire whether she knew that Cheryl O'Connor had
retained attorney Bruce Wilkins to represent her interests in the
probate proceedings. Lahti allegedly told Janet Kirk that he did
not think that Wilkins would be a good attorney because he was
dually employed as a pilot and as an attorney. Lahti allegedly
inquired whether Janet Kirk "or anyone close to Cheryl could sway
her way of thinking not to use [Wilkins] but to use [Lahti]."
As the heirs correctly note, Rule 7.3 of the Illinois Rules of
Professional Conduct prohibits a lawyer from directly, or through
a representative, soliciting professional employment when a
significant motive for doing so is the lawyer's pecuniary gain. 134
Ill. 2d R. 7.3. The heirs fail to explain, however, why a violation
of this provision warrants Lahti's removal as the bank's attorney.
As noted above, Lahti's duty as the attorney of the executor was to
protect the estate and the interests of the beneficiaries. See
Jewish Hospital, 261 Ill. App. 3d at 763. Even assuming arguendo
that Lahti's conduct violated the provisions of Rule 7.3, we fail
to see how such conduct caused actual harm to the estate or the
interests of the beneficiaries, especially in light of the fact that
Cheryl O'Connor did not retain Lahti to represent her. Lacking a
showing of such harm, we do not believe that the trial court erred
in declining to remove Lahti as the attorney on behalf of the
estate.
CONFLICT OF INTEREST
The heirs also argue that Lahti should have been removed as the
attorney for the estate due to his role in the bank's attempt to
remove Cheryl O'Connor as guardian of the estate of the decedent's
minor children. As noted above, the decedent's will nominated the
bank as guardian of the estate of the minor children and the bank
filed the petition to remove Cheryl O'Connor in order to comply with
the testator's declared intent. The heirs argue that it was a
conflict of interest for Lahti to file this petition when, as
attorney for the executor, he was charged with protecting the
interests of the beneficiaries. The heirs argue that Lahti could
not protect the interests of Cheryl O'Connor while at the same time
he was attempting to remove her as guardian of the estate of her
minor siblings. In addition, the heirs object to the fact that
Lahti incorporated certain financial documents into the bank's
petition that had been provided to him by Cheryl O'Connor just nine
days earlier.
An attorney may not undertake employment that constitutes a
conflict of interest, no matter how honest his motives or intentions
might be. In re LaPinska, 72 Ill. 2d 461, 469 (1978). As correctly
noted by the trial court, however, a party waives his right to seek
the removal of opposing counsel due to a conflict of interest by
failing to make a timely objection at trial. First National Bank
v. St. Charles National Bank, 152 Ill. App. 3d 923, 932-33 (1987).
The heirs became aware of this potential conflict of interest at the
time Lahti initially filed the petition to remove Cheryl O'Connor
in September 1989. Despite this awareness, they permitted the
probate case to proceed for 3« years until filing their petition to
remove Lahti on April 22, 1993. Such an untimely petition results
in waiver of the alleged conflict. See Nuccio v. Chicago
Commodities, Inc., 257 Ill. App. 3d 437, 440-42 (1993).
Even if the heirs had not waived their objection, however, they
would still not prevail. As noted above, although Lahti had a duty
to protect the estate and the interests of the beneficiaries, he did
not have an attorney client-relationship with the heirs. Estate of
Halas, 159 Ill. App. 3d at 825. The only client that Lahti
represented was the bank as executor of the decedent's estate; the
sole obligation of the executor and its attorney was to carry out
the instructions provided in the decedent's will. Jewish Hospital,
261 Ill. App. 3d at 763. The heirs again fail to explain how
Lahti's conduct in preparing the petition to remove was either
harmful to the estate or to the beneficiaries' interests under the
will. We decline to hold that a conflict of interest arises between
an individual heir and the executor's attorney merely because the
heir's wishes are contrary to the terms of the decedent's will. See
generally Jewish Hospital, 261 Ill. App. 3d at 763. Such a
conclusion is consistent with our disposition of the previous
appeal, wherein we held that the bank's attempt to seek guardianship
of the estate of the minor children pursuant to the decedent's will
did not constitute grounds for removal of the bank as executor.
Estate of Kirk, 242 Ill. App. 3d at 75. For all of these reasons,
we conclude that the trial court properly disposed of this issue.
UNITED STATES SAVINGS BONDS
The heirs next complain of the manner in which Lahti
distributed the decedent's United States Savings Bonds. In the
previous appeal, we considered this issue and determined that
Lahti's conduct did not constitute mismanagement of the estate's
assets or result in any harm to the estate. Estate of Kirk, 242
Ill. App. 3d at 75. Despite the heirs' request, we decline to
revisit this determination.
ATTORNEY FEES
As noted above, on November 21, 1996, the trial court awarded
Lahti $26,430 in attorney fees for his work in representing the
estate. The heirs object to this award because it includes fees
incurred as a result of Lahti's work in preparing and representing
the bank in its petition to remove Cheryl O'Connor as guardian of
the estate of the minor children, his work in preparing the bank's
response to the heirs' petition to deny letters of office, and his
work on avoiding payment of the federal and state inheritance tax
penalties. The heirs argue these fees were incurred at a time when
Lahti had a conflict of interest with the beneficiaries. The heirs
also argue that Lahti's work on these matters was not in furtherance
of their interests and was therefore not properly charged to the
estate.
It has been stated as a general principle that attorneys may
not recover fees after representing adverse, conflicting, and
antagonistic interests in the litigation. Estate of Halas, 159 Ill.
App. 3d at 831. However, the determination as to whether fees
should be disallowed is a matter within the discretion of the
probate court. In re Estate of Klappa, 18 Ill. App. 2d 501, 506
(1958). The findings and judgment of the trial court will not be
disturbed if there is any evidence in the record to support the
findings. Estate of Halas, 159 Ill. App. 3d at 831. The factors
to be considered in determining the reasonableness of fees include:
good faith; diligence; time expended; the size of the estate; the
skills and qualifications of counsel; and the novelty and complexity
of the issues confronted. Estate of Halas, 159 Ill. App. 3d at 832.
As discussed above, the heirs have failed to indicate why
Lahti's work on these matters was in conflict with his duty to
protect the estate. We fail to see how the estate was harmed by the
bank's petition to remove Cheryl O'Connor as guardian of the estate
of the minor children or the bank's decision to contest the heirs'
petition to deny letters of office; by taking these actions, the
bank was fulfilling its obligation to carry out the decedent's
intent as expressed in his will. Additionally, we note that in the
previous appeal we expressly held that the estate had not been
harmed by the manner in which the bank handled the federal and state
inheritance taxes. Estate of Kirk, 242 Ill. App. 3d at 79.
Lacking such evidence, we decline to disturb the trial court's
determination as to the appropriate attorney fees. See Szymakowski
v. Szymakowski, 185 Ill. App. 3d 746, 750-51 (1989). Lahti's expert
witness, Jim Hecht, testified that the probate litigation had been
lengthy and complex and that, in light of the size of the estate,
Lahti's fees were reasonable. Our review of the record leads us to
the same conclusion. The record reveals that the trial court
carefully scrutinized Lahti's petition for fees and eliminated any
request for fees incurred from work not directly benefitting the
estate. In light of the deference given to the trial court in
awarding attorney fees, we decline to disturb the award.
OTHER MATTERS
The heirs raise additional arguments relating to the payment
of the inheritance taxes, the trial court's ruling on their motion
to reconsider, and issues relating to "public perception." These
arguments raise many of the issues already addressed above or in the
prior appeal. To the extent that these arguments raise additional
issues, they are insufficiently presented to warrant our
consideration on appeal. A reviewing court is entitled to have
issues clearly defined with pertinent authority cited and coherent
arguments presented; arguments inadequately presented on appeal are
waived. Spinelli v. Immanuel Lutheran Evangelical Congregation,
Inc., 118 Ill. 2d 389, 401 (1987). A reviewing court will not
become an advocate for, as well as the judge of, points the
appellant seeks to raise. Holmstrom v. Kunis, 221 Ill. App. 3d 317,
325 (1991).
The heirs have barely articulated, much less properly
supported, the additional allegations of error contained in the
final three sections of their appellate brief. No relevant
authority is cited in support of their legal contentions, nor are
we able to decipher the precise allegations of error alleged.
Lacking the appropriate guidance to consider these arguments, we
conclude that they have been waived pursuant to Supreme Court Rule
341(e)(7) (134 Ill. 2d R. 341(e)(7)).
CONCLUSION
For the foregoing reasons, the judgments of the circuit court
of McHenry County are affirmed.
Affirmed.
INGLIS and BOWMAN, JJ., concur.