Bickett v. Van Winkle

2025 IL App (5th) 241215-U

• Court: Appellate Court of Illinois
• Decided: November 7, 2025
• Docket: 5-24-1215
• Status: Unpublished

Opinion

NOTICE 2025 IL App (5th) 241215-U NOTICE Decision filed 11/07/25. The This order was filed under text of this decision may be NO. 5-24-1215 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

EDMUND L. BICKETT, as Executor of the Estate of ) Appeal from the Lula Margaret Bickett, Deceased, ) Circuit Court of ) Gallatin County. Plaintiff-Appellant, ) ) v. ) No. 23-LA-5 ) JAMES VAN WINKLE, ) Honorable ) Melissa A. Morgan, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________

JUSTICE CATES delivered the judgment of the court. Justices Vaughan and Sholar concurred in the judgment.

ORDER

¶1 Held: Under the circumstances presented, the circuit court’s decision to deny the motion to stay the proceedings was an abuse of discretion. The order dismissing the plaintiff’s complaint without prejudice and denying the motion to stay is vacated, and the cause is remanded to the circuit court with directions to stay the proceedings.

¶2 The plaintiff, Edmund L. Bickett, as Executor of the Estate of Lula Margaret Bickett

(Estate), filed a complaint for legal malpractice and fraudulent concealment against the defendant,

James Van Winkle. Van Winkle filed a motion to dismiss or stay the proceedings asserting that

the plaintiff’s claims were premature due to pending claims related to the administration of the

decedent’s estate. The circuit court dismissed the plaintiff’s complaint without prejudice and

denied the motion to stay as moot. The plaintiff appealed. For the reasons that follow, the circuit

court’s order is vacated, and the cause is remanded with directions. 1 ¶3 I. BACKGROUND

¶4 The decedent, Lula Margaret Bickett (Margaret), was married to Edmund F. Bickett

(Edmund). Margaret and Edmund had seven children during their marriage: Edmund L. Bickett,

Laurie Marti, Janice Bickett, Tim Bickett, Kim Bickett, Donna Short, and Susan Bachman.

Edmund was a farmer, and he had extensive property holdings in southern Illinois and Kentucky.

Sometime prior to April 2012, Edmund assured Margaret that he intended to leave her one-half of

his estate if she agreed not to file for dissolution of their marriage. Margaret agreed and did not

seek to dissolve the marriage. In April 2012, Van Winkle, an attorney licensed in Illinois,

established an attorney-client relationship with Margaret and Edmund. From April 2012 through

November 2017, Van Winkle provided legal services in estate planning for Margaret and Edmund.

In the spring of 2012, Margaret and Edmund met with Van Winkle to discuss their estate plans.

Three of the couple’s children, Tim, Kim, and Donna, also attended the meeting. During the

meeting, Margaret allegedly expressed an intent to divide her estate equally among her seven

children, although this is a matter of contention in the underlying estate litigation.

¶5 Edmund died on November 27, 2017. According to the provisions of Edmund’s last will

and testament, one-half of his estate was given to Margaret and the other one-half was divided

equally among the couple’s seven children. Following Edmund’s death, Van Winkle continued to

provide legal services to Margaret. He prepared powers of attorney, a living will, and other legal

documents. Eventually, the professional relationship between Van Winkle and Margaret

deteriorated. On September 8, 2018, Margaret terminated Van Winkle’s services. Subsequently,

she obtained new counsel. On January 16, 2020, Margaret executed a will. Under the provisions

of the will, Margaret’s children, Tim, Kim, Donna, and Susan (collectively “the disinherited

children”), would receive one dollar each and the remainder of Margaret’s estate would be divided

2 among her other children, Edmund, Laurie, and Janice (“the inheriting children”). Margaret died

on February 27, 2021. Her will was admitted to probate in the circuit court of Gallatin County on

March 16, 2021 (the probate case).

¶6 On September 20, 2021, the disinherited children filed a petition to contest Margaret’s will

in the probate case. In August 2023, the disinherited children filed a second amended petition

alleging among other things, a will contest, breach of oral contract, promissory estoppel, and undue

influence. The disinherited children alleged that Margaret and Edmund agreed to an oral

“contracted inheritance plan” in the presence of Van Winkle. The disinherited children further

alleged that under the provisions of the “contracted inheritance plan,” Edmund agreed that a

substantial portion of his estate would be conveyed to two limited liability companies (LLCs), and

Margaret would receive 50% of the interests in those LLCs. In exchange, Margaret allegedly

agreed to the terms of the distribution and that upon her death, her estate would be equally divided

among the couple’s seven children. The disinherited children further alleged that Margaret violated

the terms of the oral “contracted inheritance plan.” Meanwhile, the inheriting children filed a

separate action in Gallatin County against three of the four disinherited children and other

defendants regarding the operation of the Bickett farms (farm operations case). In the farm

operations case, the defendants filed counterclaims alleging breach of fiduciary duty, quantum

meruit, and unjust enrichment.

¶7 On October 6, 2023, the plaintiff filed a complaint alleging legal malpractice (count I) and

fraudulent concealment (count II) against Van Winkle. In the allegations specific to count I, the

plaintiff alleged, upon information and belief, that Van Winkle “contends that he formed an

opinion that Margaret entered into a legally binding oral contract to not make a Will that would

result in her Estate not being shared equally among her seven children upon her death,” and that

3 during a consultation with the disinherited children, Van Winkle informed them of this opinion.

The plaintiff further alleged that Van Winkle breached the standard of care of an attorney

practicing law in southern Illinois, in that he failed to properly advise Margaret. The plaintiff

claimed among other things that Van Winkle failed to advise Margaret of his opinion that Margaret

had entered into a legally binding oral contract not to make a will; that there were legal

consequences for breaching the material terms and conditions of an oral contract; that any

statements Margaret made regarding her intentions for her estate in the presence of Edmund, three

of their children, and Van Winkle could result in her estate being sued for breach of an oral

contract, thereby exposing her estate to a potential judgment and legal fees and costs; and that

Margaret should seek independent legal counsel because Van Winkle also represented Edmund

and three of their children. The plaintiff further alleged that even after Margaret severed the

attorney-client relationship, Van Winkle had a continuing duty of loyalty which required that he

not use information against Margaret that he gained while in a position of trust and a continuing

duty under the Illinois Rules of Professional Conduct to refrain from representing others who held

positions materially adverse to Margaret’s position.

¶8 The plaintiff claimed that as a proximate cause of Van Winkle’s breach of his professional

duties, Margaret was deprived of any opportunity to file a lawsuit and offer her testimony to contest

the claim that there was an oral contract to not make a will. The plaintiff also claimed that the

Estate was injured in that it had expended considerable sums of money defending against the

claims brought by the disinherited children in the probate case and that it would continue to incur

expenses into the future, that the Estate had been exposed to a potential judgment that would be

contrary to Margaret’s testamentary intent, and that the Estate was subject to a counterclaim in the

farm operations case that would substantially reduce the Estate’s interest in the Bickett farming

4 LLCs. The plaintiff sought compensatory damages and further relief as the circuit court deemed

just.

¶9 The plaintiff brought a second count against Van Winkle in the alternative for “fiduciary

fraud – fraudulent concealment.” The plaintiff alleged that Van Winkle knew that Margaret had

not entered into an oral contract not to make a will, that he purposely concealed his intent to claim

that Margaret had entered into a legally binding oral contract not to make a will, and that he waited

until Margaret died to consult with and advise the disinherited children that the oral agreement

existed, with a further intent to deprive Margaret of any opportunity to rebut Van Winkle’s false

claims. The plaintiff further alleged that as a proximate cause of Van Winkle’s fraudulent

concealment and breach of his fiduciary duties, Margaret was deprived of an opportunity to file a

lawsuit and offer testimony to contest the existence of an oral contract to not make a will, and the

Estate suffered the same injuries as alleged in count I. In the prayer for relief as to count II, the

plaintiff sought compensatory damages and a hearing on a potential claim for punitive damages.

¶ 10 On December 8, 2023, Van Winkle filed a motion to dismiss the complaint or stay the

proceedings pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West

2022)). Van Winkle claimed that the plaintiff’s cause of action was premature. He argued that the

circuit court could not assess the alleged legal malpractice claim until a judicial determination was

made in the underlying litigation related to the existence and enforceability of the alleged oral

contract, its impact on the will, if any, and the measure of damages. Van Winkle further argued

that the action should be dismissed without prejudice, or in the alternative, stayed pending the

resolution of the underlying probate litigation.

¶ 11 On January 4, 2024, the plaintiff filed a response in opposition to Van Winkle’s motion.

The plaintiff argued that the pending action against Van Winkle was not premature, reasoning that

5 the Estate had already incurred significant legal fees defending against the will contest, that those

legal expenses were incurred as a direct result of Van Winkle’s neglect, and that if the pending

action was dismissed, the Estate would lose any ability to recover those legal expenses if the

underlying will contest litigation was not concluded within the next two years due to the running

of the statute of limitations. The plaintiff requested a limited stay of the trial proceedings until a

judgment was entered in the underlying will contest. The plaintiff argued that a stay of discovery

was not necessary because the discovery would be relevant in both the pending action and the will

contest.

¶ 12 In reply, Van Winkle argued that the provisional legal malpractice claim should be

dismissed without prejudice because the expenditure of attorney fees alone was not sufficient to

establish damages attributable to former counsel’s neglect. In a footnote, Van Winkle indicated

that if the case reached the responsive pleadings stage, he intended to raise “the six-month statute

of repose as a bar to recovery pursuant to 735 ILCS 5/13-214.3 and 755 ILCS 5/8-1(a).” Van

Winkle noted that the plaintiff’s justification for a limited stay with discovery was that it would

make the discovery process in the underlying probate action more convenient for plaintiff. Van

Winkle argued that this was not a proper basis upon which to grant the plaintiff’s request to stay

the trial proceedings and permit discovery. Van Winkle reiterated his request for a dismissal of the

plaintiff’s case as premature or a stay of the proceedings. In a sur-reply, the plaintiff claimed that

his action against Van Winkle contained two counts and that count II was based on fraud, not legal

malpractice. The plaintiff argued that the fraud count was a separate cause of action, with distinct

elements of proof, and that it should not be dismissed as premature. The plaintiff also reasserted

his arguments that the legal malpractice count was not premature and that a dismissal of the

6 complaint would put the plaintiff at risk of having certain claims barred by the statute of

limitations.

¶ 13 On February 15, 2024, the circuit court held a hearing on Van Winkle’s motion and took

the matter under advisement. In an order entered October 24, 2024, the circuit court found that the

plaintiff’s action against Van Winkle was premature because two cases related to the

administration of Margaret’s estate remained pending and unresolved. The court dismissed the

plaintiff’s complaint “without prejudice until the underlying litigation is fully resolved” and denied

the motion to stay as moot. This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 Initially, we address our jurisdiction to decide this appeal. Generally, the appellate court’s

jurisdiction is limited to a review of final judgments, absent a statutory exception or a supreme

court rule. In re Marriage of Verdung, 126 Ill. 2d 542, 553 (1989). In this case, the circuit court

dismissed the plaintiff’s complaint without prejudice until the underlying litigation was fully

resolved and denied the motion to stay as moot. Because the order of dismissal was without

prejudice to refiling, the order was not a final adjudication that terminated the litigation. However,

the order also denied the request to stay the proceedings until the underlying estate litigation was

resolved. Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017) provides that an appeal may

be taken from an interlocutory order of the circuit court “granting, modifying, refusing, dissolving,

or refusing to dissolve or modify an injunction.” An order granting or denying a motion to stay

proceedings pending the resolution of a related matter is injunctive in nature and reviewable under

Rule 307(a)(1). Health Care Service Corp. v. Walgreen Co., 2023 IL App (1st) 230547, ¶ 17; TIG

Insurance Co. v. Canel, 389 Ill. App. 3d 366, 371 (2009). Therefore, we have jurisdiction to

consider the circuit court’s order denying a stay of the proceedings.

7 ¶ 16 The circuit court’s decision to grant or deny a motion to stay the proceedings is reviewed

for an abuse of discretion. Estate of Bass v. Katten, 375 Ill. App. 3d 62, 67 (2007). Under the

abuse-of-discretion standard, a reviewing court does not decide whether it agrees with the circuit

court’s decision but instead determines whether the circuit court “ ‘acted arbitrarily without the

employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds

of reason and ignored recognized principles of law so that substantial prejudice resulted.’ ” Zurich

Insurance Co. v. Raymark Industries, Inc., 213 Ill. App. 3d 591, 594-95 (1991) (quoting In re

Marriage of Aud, 142 Ill. App. 3d 320, 326 (1986)). The only question before the reviewing court

on interlocutory appeal is whether there was a sufficient showing made to the circuit court to

sustain its order granting or denying the relief sought. Estate of Bass, 375 Ill. App. 3d at 67. A

reviewing court looks to the sufficiency of the evidence for the limited purpose of ascertaining

whether the circuit court abused its discretion in entering the interlocutory order, and not for

purposes of determining controverted rights or deciding the merits of the case. Estate of Bass, 375

Ill. App. 3d at 67-68.

¶ 17 A stay order serves to preserve the status quo existing on the date of its entry and does not

address the merits of the underlying dispute. Health Care Service Corp., 2023 IL App (1st)

230547, ¶ 21; Estate of Bass, 375 Ill. App. 3d at 68. The circuit court may stay the proceedings as

part of its inherent authority to control the disposition of the cases on its docket. Estate of Bass,

375 Ill. App. 3d at 68. In determining whether to stay the proceedings, the circuit court may

consider factors such as the orderly administration of justice and judicial economy. Estate of Bass,

375 Ill. App. 3d at 68. The party requesting the stay has the burden to show that the benefits of a

stay outweigh any harm to the party against whom it is operative, and if there is a fair possibility

that the stay will damage the opposing party, the party seeking the stay must make a clear showing

8 of hardship or inequity from being required to go forward with the case. Health Care Service

Corp., 2023 IL App (1st) 230547, ¶ 21; Zurich Insurance Co., 213 Ill. App. 3d at 595.

¶ 18 Illinois courts have noted that a cause of action for legal malpractice “ ‘will rarely accrue

prior to the entry of an adverse judgment, settlement, or dismissal of the underlying action in which

plaintiff has become entangled due to the purportedly negligent advice of his attorney.’ ” Estate of

Bass, 375 Ill. App. 3d at 68 (quoting Lucey v. Law Offices of Pretzel & Stouffer, Chartered, 301

Ill. App. 3d 349, 356 (1998)). While sound policy reasons, such as judicial economy and the

prevention of inconsistent verdicts, may support the dismissal of a legal malpractice action without

prejudice as premature in some cases, a dismissal without prejudice is not the circuit court’s only

option. Factors of judicial economy and the orderly administration of justice also support a

decision to grant a stay in certain cases. Estate of Bass, 375 Ill. App. 3d at 69.

¶ 19 In this case, the legal malpractice action and the underlying probate and farm operations

cases were all filed in the circuit court in Gallatin County. The record indicates that both plaintiff

and Van Winkle were willing to accept a stay of the legal malpractice proceedings, although they

disagreed about whether discovery should proceed simultaneously with the underlying actions.

Thus, judicial economy and the orderly administration of justice would be served by a stay of the

legal malpractice case until there is a judicial determination of the underlying proceedings. The

circuit court’s order of dismissal, however, does not directly address the parties’ arguments or

discuss the relevant factors regarding a stay. In addition, there is no indication that a stay would

pose a hardship on Van Winkle. Van Winkle is on notice of the plaintiffs’ claims against him and

he can take necessary steps to preserve evidence and ensure that the passage of time does not

prejudice his ability to mount a defense. Further, a stay would permit the circuit court and the

parties to monitor the underlying proceedings and to lift the stay, without undue delay, when a

9 judicial determination has been made on the underlying claims. Under the unique circumstances

presented in this case, we find that the circuit court’s decision to deny the request for a stay was

an abuse of discretion.

¶ 20 Accordingly, the circuit court’s order of October 24, 2024, dismissing the plaintiff’s

complaint without prejudice and denying the motion to stay is vacated, and the cause is remanded

to the circuit court with directions to grant the motion to stay the proceedings pending a resolution

of the contested probate proceedings.

¶ 21 Order vacated; cause remanded with directions.