Filed 5/19/08              NO. 4-07-0614

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

In re: the Estate of CHARLES RAY    )    Appeal from
HOCH, Deceased,                     )    Circuit Court of
MICHELLE I. GIRARDIN, Independent   )    Champaign County
Executrix,                          )    No. 07P11
           Petitioner-Appellant,    )
           v.                       )    Honorable
MICHAEL ALLEN HOCH,                 )    Charles McRae Leonhard,
           Respondent-Appellee.     )    Judge Presiding.
______________________________________________________________

           JUSTICE TURNER delivered the opinion of the court:

           In January 2007, petitioner, Michelle I. Girardin,

filed a petition for letters testamentary in the circuit court of

Champaign County along with the purported will of Charles Ray

Hoch.   The court thereafter admitted the will to probate and

appointed Girardin as independent executrix.    In February 2007,

respondent, Michael Allen Hoch, filed a motion for a temporary

restraining order and a preliminary injunction to enjoin Girardin

from performing any duties as independent executrix as he had

been appointed independent administrator of Charles' estate in

civil district court in Louisiana.   The circuit court of Cham-

paign County sua sponte vacated its order admitting the will to

probate, revoked Girardin's letters of office, and dismissed this

action because of the pending Louisiana case.

           On appeal, Girardin argues the circuit court erred in

sua sponte dismissing her Illinois action to administer Charles'
estate because of a similar action pending in Louisiana.     We

affirm.

                            I. BACKGROUND

           Initially, the parties involved in this appeal necess-

itate an introduction.    Charles Ray Hoch died on May 17, 2006, in

New Orleans, Louisiana.   He was survived by his mother, Joanne

Hoch, and his siblings, Mary Ann Moore, Michael Hoch, Richard

Hoch, and Katherine Ottney, all of whom are residents of Illi-

nois.   At the time of his death, Charles was living in New

Orleans with Girardin, a resident of Louisiana.

           In July 2006, Michael Hoch was appointed independent

administrator of his brother's estate in civil district court in

New Orleans pursuant to Louisiana law.      Michael filed a petition

for possession, claiming Charles died leaving no valid will.      The

petition indicated Charles left a will that was invalid under

Louisiana law and attached the will as an exhibit.     Michael asked

that the will be declared invalid and that succession be opened

under the laws of intestate proceedings.     Thereafter, Girardin

entered her appearance in the Louisiana proceeding.

           In November 2006, Girardin filed an answer to the

petition for possession in Louisiana, claiming the attached will

was valid under Illinois law, that Charles was a resident of

Champaign County, and Girardin would present the will for probate

in Illinois.   Girardin filed the will in Champaign County on


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November 17, 2006, including a certification that the will was on

file in the civil district court for the Parish of Orleans.

          In January 2007, Girardin filed a petition for letters

testamentary in Champaign County, stating Charles' will named her

as executrix and as beneficiary.    Girardin attached the same

document purported to be Charles' will as Michael had attached to

his petition for possession in Louisiana.     The petition stated

Charles' estate consisted of $450,000 in stock in Big Easy Pawn

Shop, Inc., real estate, and miscellaneous assets.     Charles'

alleged will was signed on March 11, 1999, in New Orleans, and he

left his entire estate to Girardin.     Two other family members

were named as contingent beneficiaries.     Charles indicated he was

a resident of Champaign County.    He also directed his personal

representative to "take all actions legally permissible to have

the probate of [his] will done as simply and as free of court

supervision as possible under the laws of the state having

jurisdiction over this will."   Girardin did not reference the

Louisiana proceedings in her petition.     In the circuit court of

Champaign County, Judge Leonhard admitted Charles' will to

probate and appointed Girardin as independent executrix.

          In February 2007, Michael filed a motion for temporary

restraining order and preliminary injunction in Champaign County.

He alleged Charles was not a resident of Illinois and only

resided in his mother's home on a temporary basis following the


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aftermath of Hurricane Katrina.   Michael claimed the will filed

in Champaign County was improperly executed and was invalid

because it did not conform to the requirements of Louisiana law.

Michael also claimed Charles' mother and siblings would inherit

his estate under Louisiana law and Girardin filed her petition

for letters testamentary to bypass the law and improperly inherit

the estate.

           Michael also filed a petition for revocation of letters

of office and a motion to vacate the order admitting the will to

probate.   Girardin filed a motion to dismiss Michael's motion for

temporary restraining order and preliminary injunction.

           Following arguments by both parties, the circuit court

of Champaign County found it readily apparent that an action

between the same parties and for the same cause was then pending

in Louisiana.   On its own motion, the court vacated the order

admitting the will to probate and revoked Girardin's letters of

office pursuant to section 2-619(a)(3) of the Code of Civil

Procedure (Procedure Code) (735 ILCS 5/2-619(a)(3) (West 2006)).

The court found the remaining motions moot and dismissed the

case.

           In March 2007, Girardin filed a motion to reconsider,

arguing the circuit court's sua sponte dismissal under section 2-

619(a)(3) deprived her of her due-process rights to notice and

the opportunity to present her claim.   She argued Charles' will


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established prima facie evidence that he was an Illinois resi-

dent.   She also noted Charles bought and registered his motor

home in Illinois and listed a Champaign address as his residence.

In June 2007, the court denied the motion.    The court indicated

it vacated the prior orders "because the record at the time

belatedly established that there was an action pending in Louisi-

ana stemming from the death of [Charles] and that an estate

representative had previously been appointed."    The court adhered

to its view "that the probate proceedings in this case were

properly dismissed as a matter of judicial discretion in order to

avoid both duplicative litigation and potentially conflicting

rulings by two separate courts neither of which can hold sway

over the other."   This appeal followed.

                             II. ANALYSIS

           Girardin argues the circuit court erred in dismissing

her cause of action to administer Charles' will as the validity

of the will should not be controlled by the intestate proceedings

in Louisiana.   We disagree.

           Section 2-619(a)(3) of the Procedure Code allows for

the dismissal of a cause of action if "there is another action

pending between the same parties for the same cause."    735 ILCS

5/2-619(a)(3) (West 2006).     The purpose of section 2-619(a)(3) is

to avoid duplicative litigation.     In re Marriage of Epsteen, 339

Ill. App. 3d 586, 593, 791 N.E.2d 175, 182 (2003).    "In its


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discretion, the trial court should consider four factors: (1)

comity; (2) the prevention of multiplicity, vexation, and harass-

ment; (3) the likelihood of obtaining complete relief in a

foreign jurisdiction; and (4) the res judicata effect of a

foreign judgment in the local forum."     Hapag-Lloyd (America),

Inc. v. Home Insurance Co., 312 Ill. App. 3d 1087, 1091, 729

N.E.2d 36, 40 (2000).   On appeal, a circuit court's decision to

dismiss pursuant to section 2-619(a)(3) will not be overturned

absent an abuse of discretion.     Continental Casualty Co. v. Radio

Materials Corp., 366 Ill. App. 3d 345, 347, 851 N.E.2d 857, 860

(2006).

          In the case sub judice, it is readily apparent that the

Illinois and Louisiana actions involve the same parties.    "The

'same parties' requirement of section 2-619(a)(3) is satisfied

'where the litigants' interests are sufficiently similar, even

though the litigants differ in name or number.'"     Combined Insur-

ance Co. of America v. Certain Underwriters at Lloyd's, London,

356 Ill. App. 3d 749, 754, 826 N.E.2d 1089, 1094 (2005), quoting

Doutt v. Ford Motor Co., 276 Ill. App. 3d 785, 788, 659 N.E.2d

89, 92 (1995).   Here, Charles' relatives and Girardin are ac-

tively involved in both actions with each side intimately inter-

ested in the disposition of Charles' estate.

          Under section 2-619(a)(3), "actions involve the 'same

cause' when the relief requested is based on substantially the


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same set of facts."    Combined Insurance, 356 Ill. App. 3d at 753,

826 N.E.2d at 1094.    In determining whether the two actions are

for the same cause, "the crucial inquiry is whether both arise

out of the same transaction or occurrence, not whether the legal

theory, issues, burden of proof, or relief sought materially

differs between the two actions."       Jackson v. Callan Publishing,

Inc., 356 Ill. App. 3d 326, 337, 826 N.E.2d 413, 425 (2005).

            Here, both court proceedings arose out of Charles'

death.    Michael's action in Louisiana sought the intestate

distribution of Charles' estate.    Girardin sought to probate

Charles' will in her Illinois action.      Both causes center on the

validity of Charles' will and how his estate will be distributed

once the validity of the will is determined.      Thus, the actions

pending involve the same parties for the same cause.

            Given that the same parties and the same cause are

involved in these actions, we now turn to the circuit court's

decision to sua sponte dismiss Girardin's Illinois action pursu-

ant to section 2-619(a)(3).    In this case, Michael initiated the

matter in Louisiana by filing his petition for possession in July

2006.    Girardin also became involved in the Louisiana action

before filing her petition in Illinois in January 2007.      Thus,

the Louisiana action preceded the Illinois matter and was still

pending.    Further, having dual proceedings on the same matter

risks the possibility of multiple and inconsistent rulings as to


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the proper distribution of Charles' estate.   Such a result would

be calamitous considering the separate jurisdictions and the com-

plexities of enforcing inconsistent judgments.

          Girardin, however, argues the circuit court erred in

dismissing her action, claiming section 2-619(a)(3) of the

Procedure Code does not override the Probate Act of 1975 (Probate

Act) (755 ILCS 5/1-1 through 30-3 (West 2006)) and its provisions

concerning the place of probate, the admission of a will to

probate, and the administration of the estate.   See 755 ILCS 5/1-

6, 5-1, 6-4, 7-1 (West 2006).   The Procedure Code applies to all

proceedings under the Probate Act except as otherwise provided.

755 ILCS 5/1-6 (West 2006).   However, the provisions cited by

Girardin do not mandate application of the Probate Act under the

present circumstances.

          Girardin also argues the circuit court's dismissal

denies the estate the procedural protections of the Probate Act

and will require a greater burden in Louisiana courts.   However,

Girardin fails to explain why the Louisiana court cannot probate

the alleged will based on Illinois law if appropriate.   Louisiana

law sets forth certain requirements for determining the validity

of testamentary dispositions and for, if necessary, the probate

of foreign wills.   For example, article 3528 of the Louisiana

Civil Code (La. Civ. Code Ann. art. 3528 (West 1994)) states:

               "A testamentary disposition is valid as


                                - 8 -
          to form if it is in writing and is made in

          conformity with: (1) the law of this state;

          or (2) the law of the state of making at the

          time of making; or (3) the law of the state

          in which the testator was domiciled at the

          time of making or at the time of death; or

          (4) with regard to immovables, the law that

          would be applied by the courts of the state

          in which the immovables are situated."

Also, article 2888 of the Louisiana Code of Civil Procedure (La.

Code Civ. Proc. Ann. art. 2888 (West 2003)), states:

               "A written testament subscribed by the

          testator and made *** in another state *** in

          a form not valid in this state, but valid

          under the law of the place where made, or

          under the law of the testator's domicile, may

          be probated in this state by producing the

          evidence required under the law of the place

          where made, or under the law of the testa-

          tor's domicile, respectively."

These articles indicate the question of the validity of Charles'

will can be determined in Louisiana courts.   Moreover, the

articles clearly reflect the significant importance of determin-

ing decedent's domicile.   With regard to which state determines


                               - 9 -
decedent's domicile, we note section 3-202 of the Uniform Probate

Code, which states as follows:

               "If conflicting claims as to the domi-

          cile of a decedent are made in a formal

          testacy or appointment proceeding commenced

          in this state, and in a testacy or appoint-

          ment proceeding after notice pending at the

          same time in another state, the [c]ourt of

          this state must stay, dismiss, or permit

          suitable amendment in, the proceeding here

          unless it is determined that the local pro-

          ceeding was commenced before the proceeding

          elsewhere.   The determination of domicile in

          the proceeding first commenced must be ac-

          cepted as determinative in the proceeding in

          this state."   Uniform Probate Code, 8 U.L.A.

          47, §3-202 (1997).

It has been stated that section 3-202 "requires that an inter-

ested person initiate litigation in the forum of his choice

before litigation is started elsewhere or accept the risk of

contesting decedent's domicile offered elsewhere."   31 Am. Jur.

2d Executors and Administrators §120, at 126 (2002).      As Michael

first initiated proceedings in Louisiana, the circuit court's

dismissal here was proper.


                               - 10 -
            We note Girardin has already questioned the Louisiana

court's jurisdiction in her answer to the petition for posses-

sion.   Girardin can only speculate that she will not succeed

under the will if the matter proceeds in the civil district court

for the Parish of Orleans.    Instead, we find nothing to indicate

justice cannot prevail in this case when fully presented to the

courts of Louisiana.    Given the parties involved and the nature

of the cause, along with the desire to avoid duplicative litiga-

tion, we find the court did not abuse its discretion in dismiss-

ing Girardin's Illinois action.

                           III. CONCLUSION

            For the reasons stated, we affirm the circuit court's

judgment.

            Affirmed.

            APPLETON, P.J., and KNECHT, J., concur.




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