Trial involving $10.5 million Connors' settlement still ongoing; Lawyers exchange heated barbs

Christina Stueve Oct. 5, 2011, 4:56pm


A battle between former law partners Michael Constance and Edward Brennan over a $10.5 million settlement exploded Wednesday in a bench trial before St. Clair County Associate Judge Andrew Gleeson.

Before lunch break lawyers approached Gleeson to discuss scheduling the remainder of the trial which has gone into a fifth week.

The attorneys decided their arguments would continue Thursday afternoon and then Wednesday of next week. They would break on Friday because defense attorney Jeffrey Muskopf has a wedding to attend.

"We're taking the whole day off?" said Constance's attorney Bruce Cook.

Muskopf quickly rose and approached the bench. "Mr. Cook, stop."

"Stop what, hammerhead?" Cook said to Muskopf.

Cook had proposed filing a set of interrogatories regarding Muskopf's attendance at the wedding.

"You redefine rudeness," Brennan said to Cook.

Brennan said previous scheduling accommodations had been made for Cook to attend a cocktail party.

Constance remained seated.

Constance sued Brennan in April 2010 on claims that Constance did not receive a fair share of a settlement reached with former tennis star Jimmy Connors in November 2009. Their former firm Brennan, Cates & Constance of Belleville began representing Connors in 1991 on various matters including Connors' relationship with the proposed Alton Belle Casino.

For three days, the court listened to the testimony of defense witness Donald E. Weihl, an attorney for the Greensfelder law firm in Belleville.

Weihl's testimony concluded before noon on Wednesday.

"I'm trying to be patient in all of this," Gleeson said as the lawyers traded barbs during the scheduling matter.

"I do believe the defense owes us more when taking Friday and Monday off. This is a bench trial, and I'm trying to accommodate you all."

Gleeson was seen holding his hand over his face during Wednesday morning's proceedings which were replete with objections by Cook as Brennan was questioning Weihl after direct examination.

Cook objected to how Brennan phrased his questions.

He said he wanted Brennan to ask "intelligible" questions.

The court was scheduled to reconvene after lunch following Weihl's testimony. But at 1:30 p.m., the court was waiting to hear the testimony of attorney Clyde Kuehn, but Kuehn was in another courtroom.

Gleeson said he had hundreds of cases to listen to.

"Why should I waste two and a half hours of my time?" he said.

"He's under subpoena to be here," Brennan said.

"I didn't tell him not to be here," Cook said.

"I'm not pleased," Gleeson told the lawyers.

During proceedings last Friday, Cook told Brennan he was the "worst lawyer he had ever seen."

When proceedings broke for lunch on Wednesday, Brennan told reporters in the hallway that what had occurred in the courtroom was an "abuse of the system."

According to Constance's complaint, Brennan, Cates & Constance, which dissolved in 1998, reached an agreement with Connors in 1992 in which Connors agreed to pay the partners 20 percent of the money he received in the Alton Belle and Argosy venture, according to the complaint.

In a fifth amended complaint, Constance claims that in February and March 1997, Connors directed his agents to transfer 458,333 shares of Argosy stock to Brennan and/or Brennan, Cates &n Constance.

"That defendant Brennan refused, or did not accept the tender of the Argosy stock," complaint states.

Constance wants the court to find that Brennan fraudulently concealed his cause of action and that any period of limitations has not expired. He also asks the court to assign a constructive trust to the settlement fund and that the court require Brennan to render an accounting and pay Constance's fair share of the settlement. He also seeks fees, costs and punitive damages.

Constance claims that during negotiations for the dissolution of the firm, Brennan did not inform him that the stock was offered for transfer or that he had refused the stock. Brennan denies the allegations.

But according to the lawsuit, Constance claims that in the firm's dissolution agreement, he waived his share of the Connors fee, which was induced by Brennan's failure to disclose the Connors' stock offer.

Constance claims that in May 2005, after he made a visit to Brennan's office, Brennan denied that Connors had offered to transfer stock and fraudulently concealed that information.

"That Michael Constance believed and relied upon the representations of Edward Brennan until about mid-November 2009 when he became aware that Richard Harnacker, James Connors' accountant and CPA, had testified in a deposition conducted on July 16, 2009 that defendant Brennan was informed in February of 1997 that Jimmy Connors wished to transfer the stock in question and Mr. Brennan refused the offer because he 'was busting up with his firm and didn't want them now."

In his answer, Brennan denies the allegation that he did not inform Constance that the stock was offered for transfer and denies that he refused the transfer of stock. He also denies he owed a fiduciary duty to Constance.

Brennan also is pursuing counterclaims against Constance. He claims that Constance has "unclean hands" because he has "knowingly made numerous false and misleading representations of fact" during proceedings.

Brennan claims that Constance, as secretary and treasurer of their former firm, had a duty to preserve records, but that he destroyed, gave away or otherwise failed to preserve them.

"As a direct and proximate result of Plaintiff's negligent acts and omissions, Defendant is unable to adequately defend himself in this action by proving that he timely informed Plaintiff of the offer of stock and that it was not accepted, by proving that Plaintiff was otherwise fully aware of the offer of stock and that it was not accepted, that Plaintiff knowingly and voluntarily gave up any right he may have had to recovery of the Connors fee with full knowledge of the facts, and to otherwise defend against Plaintiff's claims," Brennan states.

Brennan also states that the stock offer could not have been accepted without an agreement with Connors as to what portion of the fee had been earned.

"Because there were substantial questions about whether transfer of the stock would have completed all of Connor's obligations to compensate Defendant and/or the firm, whether the 458,333 shares in their entirety had been earned as of the time of the offer...the firm and each of its members owed Connors a fiduciary duty to disclose all related issues and interests to Connors and to ensure that he had independent legal advice in such matters before the stock could be accepted and/or distributed among the principles," Brennan's answer states.

Brennan also states that Constance's claims are barred by a five-year statute of limitations. Brennan states that Constance should have known of his claims in the summer of 2004.

In his counterclaim, Brennan seeks dismissal of Constance's claims with prejudice, monetary damages in excess of $50,000, punitive damages, interests, costs, attorney's fees and other relief.

St. Clair County case number 10-L-213.

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