Fifth District reverses Gleeson in Constance v. Brennan fee dispute

By Ann Maher | Jan 27, 2014

The Fifth District Appellate Court has reversed St. Clair County Circuit Judge Andrew Gleeson who in 2011 found in favor of Belleville attorney Michael Constance in a fee dispute with a former partner.

Justice Bruce Stewart wrote a non-precedential order published Jan. 22. Justices Melissa Chapman and Stephen Spomer concurred.

Stewart held that a five-year statute of limitations had expired in the dispute stemming from the representation of tennis star Jimmy Connors who was an original investor in the Alton Belle and Argosy casino venture.

Constance sued former partner Edward Brennan in 2010 claiming he did not receive a fair share of settlement arising from Argosy stock tendered by Connors. Constance alleged that he signed a release in 1998 waiving his interest in the Connors fee settlement due to Brennan’s failure to disclose that Connors had tendered the stock around the time the law firm began its dissolution process.

Following a 19-day bench trial that ended Oct. 13, 2011, Gleeson, then an associate judge, awarded Constance $1,640,796 in a constructive trust finding that Brennan breached fiduciary duty by not disclosing stock tender from Connors.

The Belleville firm Brennan, Cates & Constance, which dissolved in 1998, had represented Connors on various matters including his relationship with the Alton Belle Casino. The firm had reached an agreement with Connors in 1992 in which Connors agreed to pay the partners 20 percent of the money he received in the casino venture.

Justice Judy Cates, elected to the Fifth District in 2012, was a former partner in the firm, but was not party to this litigation.

Stewart wrote that Brennan raised several issues on appeal, but that the court need not review the other issues or consider Constance’s cross-appeal challenging the amount of judgment because the “statute of limitations is dispositive.”

Stewart found that Constance was on notice in early 2004 that the stock tender took place in February 1997 because of a deposition taken of a bank official involved in the stock transfer.

“We believe that this conclusion is not something about which reasonable minds could differ,” Stewart wrote.

He wrote that that deposition provided Constance with actual knowledge of all the facts he needed to know to timely file his lawsuit.

Stewart also found that Constance’s argument for the application of equitable estoppel is not available to him as grounds to bar the application of the statute of limitations to his claim.

At trial, Constance was represented by Belleville attorney Bruce Cook.

Brennan was represented by Jeffrey Muskopf and others at trial. Edward Kionka of Carbondale was listed on the appeal as Brennan’s attorney.

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