In re Estate of Mattson ( 2019 )

2019 IL App (1st) 180805
No. 1-18-0805
Opinion filed on April 30, 2019.
Second Division
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
In re ESTATE OF CAROL MATTSON, Deceased. ) Appeal from the
) Circuit Court of
) Cook County.
)
) No. 17 P. 752
)
) The Honorable
) Daniel B. Malone,
) Judge Presiding.
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Mason concurred in the judgment and opinion.
Justice Hyman dissented, with opinion.
OPINION
¶1 Daniel Houlihan, a non-attorney proceeding pro se, petitioned the circuit court to open an
estate for his mother, Carol Mattson, and for issuance of letters of administration, appointing him
as independent administrator of her estate. The circuit court denied his petition without prejudice
because Daniel, as a non-attorney, could not represent the legal interests of an estate in a pro se
No. 1-18-0805
capacity. Daniel now appeals. 1
¶2 BACKGROUND
¶3 In February 2017, Daniel filed a petition for letters of administration in the probate
division of the circuit court, which stated that Carol Mattson (Decedent), died on May 4, 2016,
leaving no will. According to the petition, Decedent’s heirs were her three surviving children,
namely, Daniel Houlihan, Brian Houlihan 2 and Deborah Soraghan. Initially, the circuit court
struck Daniel’s petition when he failed to appear in court to present it. Daniel subsequently filed
a pro se motion for “permission to proceed in [the] process [of] opening the ESTATE OF
CAROL JOAN MATTSON.” On three separate occasions thereafter, the court advised Daniel
that he could not represent the legal interests of an estate as a non-attorney and continued the
case in order “for [an] attorney to appear.” Instead, Daniel filed a pro se motion to “Appoint Son
Daniel Houlihan [as] Independent Administrator” of Decedent’s estate. Despite its prior orders,
the court nonetheless continued the case “for [an] attorney to appear.”
¶4 Ultimately, the court denied Daniel’s petition without prejudice on March 15, 2018,
because he failed to obtain counsel to represent Decedent’s estate and could not represent the
legal interests of her estate as a non-attorney pursuant to Ratcliffe v. Apantaku, 318 Ill. App. 3d
621 (2000). Daniel has not retained counsel and is representing Decedent’s interests in this
matter pro se as he did below. For the reasons to follow, we strike his brief and dismiss the
appeal.
¶5 ANALYSIS
¶6 An individual not duly authorized to practice law cannot represent another in a court of
1
We note that there is no respondent-appellee in this case. As such, we will consider the merits of
this appeal based on the record and petitioner-appellant’s brief only. See First Capitol Mortgage Corp. v.
Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
2
We note that Daniel’s brief indicates Brian Houlihan died in February 2018.
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law. 705 ILCS 205/1 (West 2016); Ratcliffe, 318 Ill. App. 3d at 625 (citing Blue v. People, 223
Ill. App. 3d 594, 596 (1992)). Thus, although a pro se litigant is entitled to represent his own
personal interests, a non-attorney cannot represent another’s legal interests on behalf of that
individual. Ratcliffe, 318 Ill. App. 3d at 626; National Bank of Austin v. First Wisconsin National
Bank of Milwaukee, 53 Ill. App. 3d 482, 488-89 (1977). Moreover, this rule includes a non-
attorney seeking to personally represent the legal interests of an estate. See Ratcliffe, 318 Ill.
App. 3d at 626 (citing Waite v. Carpenter, 1 Neb. Ct. App. 321, 328 (1992)) (stating, “ ‘[t]his is not
to say that personal representatives must be attorneys, but, rather, that one who seeks to represent
the legal interests of the personal representative must be an attorney’ ”). In addition, where one
not licensed to practice law has instituted legal proceedings on behalf of another, the suit should
be dismissed. Blue, 223 Ill. App. 3d at 596; Lake Shore Management Co. v. Blum, 92 Ill. App. 2d
47, 50 (1968).
¶7 Based on the foregoing, Daniel cannot represent the legal interests of Decedent’s estate in
a pro se capacity, either in this court or in the action below, since he is not a licensed attorney or
a party to this suit. See 705 ILCS 205/1 (West 2016); Ratcliffe, 318 Ill. App. 3d at 627; Blue, 223
Ill. App. 3d at 595-96. Additionally, the suit should be dismissed because Daniel, as a non-
attorney, has impermissibly instituted legal proceedings on behalf of another, i.e., the estate of
Carol Mattson. This occurred when he filed motions pro se for “permission to proceed in [the]
process [of] opening the ESTATE OF CAROL JOAN MATTSON,” and to “Appoint Son Daniel
Houlihan [as] Independent Administrator” of Decedent’s estate, in addition to filing the present
pro se appeal. We note the dissent relies in part on the “petitions for letters of administration
forms” in arguing that the denial of Daniel’s petition was improper. Not only are these
documents from other counties and thus, inapplicable, but the rationale quite literally elevates
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“forms” over substance, as the statutory language directly contradicts the analysis. 705 ILCS
205/1 (West 2016). And from Daniel’s brief, it is apparent that he seeks not only to pursue his
petition to appoint an independent administrator pro se, but also intends, as independent
administrator, to pursue claims against his sister for allegedly dissipating estate assets. Even our
dissenting colleague would agree that Daniel cannot pursue the latter course pro se. Accordingly,
the appeal is dismissed and the judgment of the circuit court is affirmed.
¶8 CONCLUSION
¶9 For the reasons set forth above, we strike Daniel’s brief and dismiss the appeal. See Blue,
223 Ill. App. 3d at 596-97 (striking the briefs by a non-attorney pro se filed on behalf of
another).
¶ 10 Appeal dismissed; circuit court judgment affirmed.
¶ 11 JUSTICE HYMAN dissenting:
¶ 12 This appeal involves a barrier to accessing the civil justice system that does not exist.
¶ 13 Daniel Houlihan filed a pro se petition in the trial court seeking appointment as
administrator of his mother’s estate. The trial court dismissed the petition, without prejudice,
finding Daniel “cannot represent the legal interest of an entity in a pro se capacity because he is
not an attorney licensed to practice law.” At this preliminary stage, Daniel is not representing the
legal interests of his mother’ estate, as he has not yet been appointed administrator. He represents
his own interest in serving as administrator, and need not hire an attorney to file the petition.
Thus, I dissent from the majority’s decision to affirm the trial court’s order denying Daniel’s pro
se petition for letters of administration and would remand for further proceedings. I also dissent
from the decision to dismiss Daniel’s appeal and to strike his brief.
¶ 14 The Majority’s Decision
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¶ 15 As the majority notes, a self-represented litigant can represent his or her own interests,
but a non-attorney cannot represent the interests of another. Blue v. People, 223 Ill. App. 3d 594,
596 (1992)). Under the “nullity rule,” a court may dismiss a case if a person who is not licensed
to practice law attempts to represent another party in legal proceedings. Applebaum v. Rush
University Medical Center, 231 Ill. 2d 429, 435 (citing Ford Motor Credit Co. v. Sperry, 214 Ill.
2d 371 (2005). As our supreme court explained, the purpose of the nullity—or voidness—rule—
“ ‘is * * * to protect litigants against the mistakes of the ignorant and the schemes of the
unscrupulous and to protect the court itself in the administration of its proceedings from those
lacking requisite skills.’ ” Id. (citing Sperry, 214 Ill. 2d at 389-90 (2005) (quoting Janiczek v.
Dover Management Co., 134 Ill. App. 3d 543, 546 (1985)).
¶ 16 Both the majority and trial court cite to Ratcliffe v. Apantaku, 318 Ill. App. 3d 621
(2008). There, the appellate court applied the nullity rule to dismiss a pro se wrongful death
complaint filed by a special administrator on behalf of her mother’s estate. The appellate court
found that the daughter brought the claims for damages in a representative capacity for the
benefit of the decedent’s estate. Id. at 626-27. And, because a non-attorney may not represent the
legal interests of another, the court dismissed the self-represented litigant’s complaint. The court
also found that medical malpractice and wrongful death actions cases are “complex cases that
require the expertise of an attorney.” Id.
¶ 17 In reaching its decision, the Ratcliffe court relied on Blue v. People, 223 Ill. App. 3d 594
(1992). In Blue, a self-represented litigant filed a complaint for an order of habeas corpus in the
name of his minor child, alleging the child’s mother had custody in violation of due process of
law. The trial court dismissed the complaint under section 2-619(a) (3) of the Illinois Code of
Civil Procedure (735 ILCS 5/2-619(a) (3) (West 2016), because of a separate pending case
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between the same parties for the same cause. The appellate court, however, dismissed the appeal
and vacated the circuit court’s judgment. Blue, 223 Ill. App. 3d at 597.
¶ 18 Citing the nullity rule, the court stated that “[o]ne not duly authorized to practice law may
not represent another in a court of law.” Id. at 596. “Where one not licensed to practice law has
instituted legal proceedings on behalf of another, the suit should be dismissed; if the suit has
proceeded to judgment, the judgment is void and will be reversed. [Citation omitted].” Id. The
court concluded the self-represented father, who was not authorized to practice law, could not
represent the interests of his son. The court also reasoned that a minor, who lacks the capacity to
represent himself, should have the protection and expertise of an attorney. Id.
¶ 19 Ratcliffe and Blue, however, do not support dismissal of Daniel’s petition. In both
Ratcliffe and Blue, the plaintiffs sought to bring pro se claims on behalf of another. In Ratcliffe a
daughter, who had not yet been appointed administrator, wanted to sue on behalf of her deceased
mother. In Blue, a father wanted to file a claim on behalf of his minor son. Conversely, Daniel is
not representing his mother or her estate. Daniel filed his petition under section 9-4 of the
Probate Act, which permits “[a]nyone desiring to have letters of administration issued on the
estate of an intestate decedent shall file a petition therefor in the court of the proper county.” 755
ILCS 5/9-4 (West 2016). Daniel seeks only letters of administration, which, if granted, would
then permit him to act on the behalf of his mother’s estate. But, until appointed, he represents
himself alone.
¶ 20 According to Daniel’s brief, he has a sister and two deceased brothers, one of whom has
two children. Daniel’s sister and his brother’s children are entitled to notice and may appear to
oppose his appointment as administrator. 755 ILCS 5/9-5 (West 2016) (copy of petition must be
mailed with time and place of hearing to heirs entitled to administer or nominate a person to
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administer estate). If, after a hearing, the trial court grants Daniel’s petition, he may act on behalf
of the estate. Until then, Daniel and his sister, if she too seeks letters of administration, act on
behalf of themselves as potential administrators of the estate and nothing in the Probate Act
requires the hiring of an attorney to pursue those interests.
¶ 21 Notably, circuit courts in other Illinois counties permit self-presented petitions for letters
of administration, as evidenced by the forms made available to the public on county court
websites. The petitions for letters of administration forms in in DuPage County, Kane County,
Lake County, and elsewhere include a box labeled “pro se,” which plainly permit the petitioning
party to file the petition without hiring a lawyer. See
https://www.dupageco.org/CourtClerk/CourtForms/, (DuPage County),
http://www.cic.co.kane.il.us/eForms/P1-PR-007-E.pdf (Kane County),
https://www.lakecountycircuitclerk.org/docs/default-source/probate/petition-for-probate-and-for-
letters-171p-30-(rev-12-17)0328bae006ca6cf291ebff0000dce829.pdf?sfvrsn=2 (Lake County).
Interestingly, the form on the Cook County circuit court website does not similarly provide for a
pro se petitioner to sign the petition. See
http://www.cookcountyclerkofcourt.org/Forms/pdf files/CCPN302.pdf.
¶ 22 Given the absence of caselaw to support its holding or a circuit court rule prohibiting a
petitioner from filing a pro se petition for letters of administration, I can only surmise the trial
court may have applied an informal rule applied in Cook County that prohibits pro se petitions
for letters of administration, If so, the practice should be abandoned, as it has no basis in law.
Further, it would violate due process to permit petitioners in other counties to file petitions pro
se, while petitioners in Cook County must hire an attorney to file the petition.
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¶ 23 Daniel well may want to hire an attorney if he successfully petitions for appointment as
administrator. But, until then, he represents no interests of the estate and neither the nullity rule
nor the cases cited by the majority support dismissing his petition. Thus, I would reverse the trial
court’s order and remand for further proceedings on Daniel’s pro se petition for letters of
administration.
¶ 24 Striking Appellant’s Brief
¶ 25 I also dissent from the majority’s decision to strike Daniel’s brief. The majority dismisses
Daniel’s appeal and strikes his brief on the grounds that he cannot appear pro se in the trial court
or before this court. As noted, I disagree with the conclusion that, at this stage, Daniel represents
any interest other than his own in being appointed administrator. Thus, I would not dismiss his
appeal or strike his brief.
¶ 26 Moreover, by striking the brief, the appellate court effectively closes the courthouse door
to a pro se appellant, like Daniel, who thinks the trial court got it wrong. This punishes Daniel
twice, once for not having hired an attorney— first by the trial court, which dismissed his
petition on the grounds, improperly I contend, and then in this court where he may not appear
pro se to present his arguments. Thus, I would not strike his brief but permit Daniel to present his
arguments and have the appeal decided on the merits.
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