In re Estate of Mattson

2019 IL App (1st) 180805

• Court: Appellate Court of Illinois
• Decided: April 30, 2019
• Docket: 1-18-0805
• Status: Unpublished

Opinion

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. -2- No. 1-18-0805

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. 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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