In re Estate of Hoch

Filed 5/19/08 NO. 4-07-0614
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Estate of CHARLES RAY ) Appeal from
HOCH, Deceased, ) Circuit Court of
MICHELLE I. GIRARDIN, Independent ) Champaign County
Executrix, ) No. 07P11
Petitioner-Appellant, )
v. ) Honorable
MICHAEL ALLEN HOCH, ) Charles McRae Leonhard,
Respondent-Appellee. ) Judge Presiding.
______________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In January 2007, petitioner, Michelle I. Girardin,
filed a petition for letters testamentary in the circuit court of
Champaign County along with the purported will of Charles Ray
Hoch. The court thereafter admitted the will to probate and
appointed Girardin as independent executrix. In February 2007,
respondent, Michael Allen Hoch, filed a motion for a temporary
restraining order and a preliminary injunction to enjoin Girardin
from performing any duties as independent executrix as he had
been appointed independent administrator of Charles' estate in
civil district court in Louisiana. The circuit court of Cham-
paign County sua sponte vacated its order admitting the will to
probate, revoked Girardin's letters of office, and dismissed this
action because of the pending Louisiana case.
On appeal, Girardin argues the circuit court erred in
sua sponte dismissing her Illinois action to administer Charles'
estate because of a similar action pending in Louisiana. We
affirm.
I. BACKGROUND
Initially, the parties involved in this appeal necess-
itate an introduction. Charles Ray Hoch died on May 17, 2006, in
New Orleans, Louisiana. He was survived by his mother, Joanne
Hoch, and his siblings, Mary Ann Moore, Michael Hoch, Richard
Hoch, and Katherine Ottney, all of whom are residents of Illi-
nois. At the time of his death, Charles was living in New
Orleans with Girardin, a resident of Louisiana.
In July 2006, Michael Hoch was appointed independent
administrator of his brother's estate in civil district court in
New Orleans pursuant to Louisiana law. Michael filed a petition
for possession, claiming Charles died leaving no valid will. The
petition indicated Charles left a will that was invalid under
Louisiana law and attached the will as an exhibit. Michael asked
that the will be declared invalid and that succession be opened
under the laws of intestate proceedings. Thereafter, Girardin
entered her appearance in the Louisiana proceeding.
In November 2006, Girardin filed an answer to the
petition for possession in Louisiana, claiming the attached will
was valid under Illinois law, that Charles was a resident of
Champaign County, and Girardin would present the will for probate
in Illinois. Girardin filed the will in Champaign County on
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November 17, 2006, including a certification that the will was on
file in the civil district court for the Parish of Orleans.
In January 2007, Girardin filed a petition for letters
testamentary in Champaign County, stating Charles' will named her
as executrix and as beneficiary. Girardin attached the same
document purported to be Charles' will as Michael had attached to
his petition for possession in Louisiana. The petition stated
Charles' estate consisted of $450,000 in stock in Big Easy Pawn
Shop, Inc., real estate, and miscellaneous assets. Charles'
alleged will was signed on March 11, 1999, in New Orleans, and he
left his entire estate to Girardin. Two other family members
were named as contingent beneficiaries. Charles indicated he was
a resident of Champaign County. He also directed his personal
representative to "take all actions legally permissible to have
the probate of [his] will done as simply and as free of court
supervision as possible under the laws of the state having
jurisdiction over this will." Girardin did not reference the
Louisiana proceedings in her petition. In the circuit court of
Champaign County, Judge Leonhard admitted Charles' will to
probate and appointed Girardin as independent executrix.
In February 2007, Michael filed a motion for temporary
restraining order and preliminary injunction in Champaign County.
He alleged Charles was not a resident of Illinois and only
resided in his mother's home on a temporary basis following the
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aftermath of Hurricane Katrina. Michael claimed the will filed
in Champaign County was improperly executed and was invalid
because it did not conform to the requirements of Louisiana law.
Michael also claimed Charles' mother and siblings would inherit
his estate under Louisiana law and Girardin filed her petition
for letters testamentary to bypass the law and improperly inherit
the estate.
Michael also filed a petition for revocation of letters
of office and a motion to vacate the order admitting the will to
probate. Girardin filed a motion to dismiss Michael's motion for
temporary restraining order and preliminary injunction.
Following arguments by both parties, the circuit court
of Champaign County found it readily apparent that an action
between the same parties and for the same cause was then pending
in Louisiana. On its own motion, the court vacated the order
admitting the will to probate and revoked Girardin's letters of
office pursuant to section 2-619(a)(3) of the Code of Civil
Procedure (Procedure Code) (735 ILCS 5/2-619(a)(3) (West 2006)).
The court found the remaining motions moot and dismissed the
case.
In March 2007, Girardin filed a motion to reconsider,
arguing the circuit court's sua sponte dismissal under section 2-
619(a)(3) deprived her of her due-process rights to notice and
the opportunity to present her claim. She argued Charles' will
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established prima facie evidence that he was an Illinois resi-
dent. She also noted Charles bought and registered his motor
home in Illinois and listed a Champaign address as his residence.
In June 2007, the court denied the motion. The court indicated
it vacated the prior orders "because the record at the time
belatedly established that there was an action pending in Louisi-
ana stemming from the death of [Charles] and that an estate
representative had previously been appointed." The court adhered
to its view "that the probate proceedings in this case were
properly dismissed as a matter of judicial discretion in order to
avoid both duplicative litigation and potentially conflicting
rulings by two separate courts neither of which can hold sway
over the other." This appeal followed.
II. ANALYSIS
Girardin argues the circuit court erred in dismissing
her cause of action to administer Charles' will as the validity
of the will should not be controlled by the intestate proceedings
in Louisiana. We disagree.
Section 2-619(a)(3) of the Procedure Code allows for
the dismissal of a cause of action if "there is another action
pending between the same parties for the same cause." 735 ILCS
5/2-619(a)(3) (West 2006). The purpose of section 2-619(a)(3) is
to avoid duplicative litigation. In re Marriage of Epsteen, 339
Ill. App. 3d 586, 593, 791 N.E.2d 175, 182 (2003). "In its
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discretion, the trial court should consider four factors: (1)
comity; (2) the prevention of multiplicity, vexation, and harass-
ment; (3) the likelihood of obtaining complete relief in a
foreign jurisdiction; and (4) the res judicata effect of a
foreign judgment in the local forum." Hapag-Lloyd (America),
Inc. v. Home Insurance Co., 312 Ill. App. 3d 1087, 1091, 729
N.E.2d 36, 40 (2000). On appeal, a circuit court's decision to
dismiss pursuant to section 2-619(a)(3) will not be overturned
absent an abuse of discretion. Continental Casualty Co. v. Radio
Materials Corp., 366 Ill. App. 3d 345, 347, 851 N.E.2d 857, 860
(2006).
In the case sub judice, it is readily apparent that the
Illinois and Louisiana actions involve the same parties. "The
'same parties' requirement of section 2-619(a)(3) is satisfied
'where the litigants' interests are sufficiently similar, even
though the litigants differ in name or number.'" Combined Insur-
ance Co. of America v. Certain Underwriters at Lloyd's, London,
356 Ill. App. 3d 749, 754, 826 N.E.2d 1089, 1094 (2005), quoting
Doutt v. Ford Motor Co., 276 Ill. App. 3d 785, 788, 659 N.E.2d
89, 92 (1995). Here, Charles' relatives and Girardin are ac-
tively involved in both actions with each side intimately inter-
ested in the disposition of Charles' estate.
Under section 2-619(a)(3), "actions involve the 'same
cause' when the relief requested is based on substantially the
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same set of facts." Combined Insurance, 356 Ill. App. 3d at 753,
826 N.E.2d at 1094. In determining whether the two actions are
for the same cause, "the crucial inquiry is whether both arise
out of the same transaction or occurrence, not whether the legal
theory, issues, burden of proof, or relief sought materially
differs between the two actions." Jackson v. Callan Publishing,
Inc., 356 Ill. App. 3d 326, 337, 826 N.E.2d 413, 425 (2005).
Here, both court proceedings arose out of Charles'
death. Michael's action in Louisiana sought the intestate
distribution of Charles' estate. Girardin sought to probate
Charles' will in her Illinois action. Both causes center on the
validity of Charles' will and how his estate will be distributed
once the validity of the will is determined. Thus, the actions
pending involve the same parties for the same cause.
Given that the same parties and the same cause are
involved in these actions, we now turn to the circuit court's
decision to sua sponte dismiss Girardin's Illinois action pursu-
ant to section 2-619(a)(3). In this case, Michael initiated the
matter in Louisiana by filing his petition for possession in July
2006. Girardin also became involved in the Louisiana action
before filing her petition in Illinois in January 2007. Thus,
the Louisiana action preceded the Illinois matter and was still
pending. Further, having dual proceedings on the same matter
risks the possibility of multiple and inconsistent rulings as to
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the proper distribution of Charles' estate. Such a result would
be calamitous considering the separate jurisdictions and the com-
plexities of enforcing inconsistent judgments.
Girardin, however, argues the circuit court erred in
dismissing her action, claiming section 2-619(a)(3) of the
Procedure Code does not override the Probate Act of 1975 (Probate
Act) (755 ILCS 5/1-1 through 30-3 (West 2006)) and its provisions
concerning the place of probate, the admission of a will to
probate, and the administration of the estate. See 755 ILCS 5/1-
6, 5-1, 6-4, 7-1 (West 2006). The Procedure Code applies to all
proceedings under the Probate Act except as otherwise provided.
755 ILCS 5/1-6 (West 2006). However, the provisions cited by
Girardin do not mandate application of the Probate Act under the
present circumstances.
Girardin also argues the circuit court's dismissal
denies the estate the procedural protections of the Probate Act
and will require a greater burden in Louisiana courts. However,
Girardin fails to explain why the Louisiana court cannot probate
the alleged will based on Illinois law if appropriate. Louisiana
law sets forth certain requirements for determining the validity
of testamentary dispositions and for, if necessary, the probate
of foreign wills. For example, article 3528 of the Louisiana
Civil Code (La. Civ. Code Ann. art. 3528 (West 1994)) states:
"A testamentary disposition is valid as
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to form if it is in writing and is made in
conformity with: (1) the law of this state;
or (2) the law of the state of making at the
time of making; or (3) the law of the state
in which the testator was domiciled at the
time of making or at the time of death; or
(4) with regard to immovables, the law that
would be applied by the courts of the state
in which the immovables are situated."
Also, article 2888 of the Louisiana Code of Civil Procedure (La.
Code Civ. Proc. Ann. art. 2888 (West 2003)), states:
"A written testament subscribed by the
testator and made *** in another state *** in
a form not valid in this state, but valid
under the law of the place where made, or
under the law of the testator's domicile, may
be probated in this state by producing the
evidence required under the law of the place
where made, or under the law of the testa-
tor's domicile, respectively."
These articles indicate the question of the validity of Charles'
will can be determined in Louisiana courts. Moreover, the
articles clearly reflect the significant importance of determin-
ing decedent's domicile. With regard to which state determines
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decedent's domicile, we note section 3-202 of the Uniform Probate
Code, which states as follows:
"If conflicting claims as to the domi-
cile of a decedent are made in a formal
testacy or appointment proceeding commenced
in this state, and in a testacy or appoint-
ment proceeding after notice pending at the
same time in another state, the [c]ourt of
this state must stay, dismiss, or permit
suitable amendment in, the proceeding here
unless it is determined that the local pro-
ceeding was commenced before the proceeding
elsewhere. The determination of domicile in
the proceeding first commenced must be ac-
cepted as determinative in the proceeding in
this state." Uniform Probate Code, 8 U.L.A.
47, §3-202 (1997).
It has been stated that section 3-202 "requires that an inter-
ested person initiate litigation in the forum of his choice
before litigation is started elsewhere or accept the risk of
contesting decedent's domicile offered elsewhere." 31 Am. Jur.
2d Executors and Administrators §120, at 126 (2002). As Michael
first initiated proceedings in Louisiana, the circuit court's
dismissal here was proper.
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We note Girardin has already questioned the Louisiana
court's jurisdiction in her answer to the petition for posses-
sion. Girardin can only speculate that she will not succeed
under the will if the matter proceeds in the civil district court
for the Parish of Orleans. Instead, we find nothing to indicate
justice cannot prevail in this case when fully presented to the
courts of Louisiana. Given the parties involved and the nature
of the cause, along with the desire to avoid duplicative litiga-
tion, we find the court did not abuse its discretion in dismiss-
ing Girardin's Illinois action.
III. CONCLUSION
For the reasons stated, we affirm the circuit court's
judgment.
Affirmed.
APPLETON, P.J., and KNECHT, J., concur.
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