Dead defendant makes 'special' appearance in court proceedings

Steve Korris Feb. 23, 2006, 5:12am

Strange things sometimes happen in the lawsuit capital of the world.

Such is the case of Madison County defendant Lucille Kleeman, who according to court documents, made a "special and limited appearance" to defend herself in a lawsuit over a beating at the Biltmore Apartments in Roxana.

She could not present a more substantial appearance because she died 35 years ago.

By mistake, attorney Lindsay Rakers of Edwardsville last year named Kleeman as a defendant in a suit she filed on behalf of Michael and Lisa Denny of East Alton.

Madison County Circuit Judge Nicholas Byron repaired the mistake Feb. 9, giving Rakers 60 days to write a new complaint.

This and other oddities befell Byron that day, as he coped with 128 cases that Circuit Judge George Moran left behind when he cleared out and quit.

In the confusion Byron signed an order he should not have signed. He vacated it five days later so Circuit Judge Daniel Stack could sign one like it.

In the Biltmore case, Michael Denny claims that apartment manager Noren Twente and others severely beat him. Lisa Denny claims she suffered damages from the beating.

Attorney Rakers named Twente as a defendant but not his accomplices.

Rakers also named John Kleeman and Lucille Kleeman as defendants, identifying them as owners of the Biltmore apartments.

Rakers accused the Kleemans of negligent hiring.

Twente moved Dec. 7 to dismiss. Attorney Gregory Skinner of Swansea argued that Rakers improperly joined Michael and Lisa Denny as plaintiffs.

John Kleeman moved Dec. 9 to dismiss. Attorney Jane Unsell of East Alton argued that Rakers provided no facts to support a charge of negligent hiring.

John Kleeman separately objected to the court's jurisdiction over Lucille Kleeman. Unsell informed the court that Lucille Kleeman died in 1971.

When the case reached Byron, he granted Rakers leave to amend the complaint "to conform to the identity of proper parties."

Dead plaintiffs

Though dead defendants seldom appear at the courthouse, dead plaintiffs often make special and limited appearances of their own.

Three such cases recently came before Byron. In two of them, Gary Peel of the Lakin Law Firm in Wood River represents plaintiffs in proposed class actions.

A year ago Peel sued Nationscredit Financial Services on behalf of Gary Treadway as special representative of the estate of Juanita Treadway, who died in 2001.

According to Peel's complaint, Juanita Treadway paid a loan discount fee of $150 but Nationscredit did not reduce her interest rate.

Nationscredit moved in October to dismiss. Attorney Joseph Whyte argued that the National Bank Act pre-empted state jurisdiction.

Peel responded to the motion Nov. 16, and attorney Robert Shultz replied for the defense Nov. 30.

Moran set a hearing Dec. 21, but Peel asked to reset it. Moran set it Feb. 9.

It came before Byron instead. He signed an order continuing the hearing on his own motion, based on phone conversations with Peel and Shultz.

Byron's order stated that the parties and court would determine a hearing date.


In the other proposed class action, Peel sued General Electric Capital Assurance last year on behalf of Wilma Kern of Ewing and Judith Chapman of Edwardsville.

Wilma Kern had died before Peel filed the suit, so he listed her son Mark Kern as "attorney in fact."

The son bears the same name as the St. Clair County Board Chairman and holds a similarly prestigious position. This Mark Kern is president of Rend Lake College in Ina.

Peel's complaint charged that Wilma Kern and Judith Chapman bought long term care insurance with benefits they could not use.

According to the complaint, the policies covered licensed assisted living facilities, but there were too few licensed facilities for the benefit to have any value.

Shultz moved in May to dismiss Kern's claim due to her death or transfer it to Franklin County, where she lived.

Lakin attorney Paul Marks moved in August to substitute Mark Kern as plaintiff. Moran granted the motion in November, making the son the independent executor of the mother.

Defense attorney Deborah Hawkins moved in December to dismiss Chapman as plaintiff, arguing that Chapman suffered no injury.

Hawkins repeated the request to transfer the Kern claim to Franklin County.

When the case reached Byron, he signed an order staying briefs and discovery on class certification and staying discovery on everything but venue.

The order calls for plaintiffs to oppose the motion to dismiss by April 10, and for the defense to reply by May 10. The order does not set a date for a hearing.

And another

The third case with a dead plaintiff dragged on for five years before the plaintiff died.

In 2000, Beverly Klunk sued physician Richard Butler, Saint Anthony's Health Center, and Community Physicians Inc., over an emergency room visit in 1998.

Klunk's attorney, John Papa of Granite City, wrote that Butler sent her home where an attack of sepsis caused her to lose eyesight.

Last year Moran set the case for trial Dec. 12, but in June Klunk died. Moran cancelled the trial and granted Papa leave to amend the complaint.

Moran set a management conference Feb. 9. On that day the attorneys asked Byron to continue it and Byron so ordered. Jonathan Ries represents the defense.

Almost perfect

Byron kept almost everything straight on a rough day, but he slipped on a case that looks like a carousel of counterclaims.

Two years ago Edward Hoekstra sued physicians Laurence Monckton and Aamir Javaid, claiming their negligence required the removal of nearly all of his intestines.

Attorney Rex Carr also named Midwest Acute Care Consultants, Answer Midwest, New RPS and Alton Memorial Hospital as defendants.

This Jan. 30, Javaid and Midwest Acute Care Consultants moved for leave to file a counterclaim against Monckton and Answer Midwest.

The same day, Monckton and New RPS moved for leave to file a counterclaim against Javaid, Midwest Acute Care Consultants, Alton Memorial Hospital and Answer Midwest.

Moran granted leave to file both counterclaims.

Alton Memorial Hospital moved for leave to file a counterclaim against Javaid, Midwest Care Consultants and Answer Midwest.

Byron signed an order Feb. 9, granting the hospital leave to file a counterclaim.

Neither the judge nor the attorneys recalled that the court had assigned the case to Byron in its early stages, and that one of the parties had removed him through substitution.

In Illinois, any party can substitute a judge once without cause, if the judge has not made a substantial ruling. After substitution removes a judge, he cannot touch the case.

Byron signed an order Feb. 14, vacating the Feb. 9 order. He wrote that he signed it "upon inadvertence of counsel and of the Court."

Stack then signed an order granting the hospital leave to file a counterclaim.

In many of the cases that Moran dropped, Byron continued management conferences to March 10. Dockets show that "new judge" will conduct the conferences.

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