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David L
David L, Attorney
Category: Estate Law
Satisfied Customers: 3255
Experience:  Estate planning and probate attorney since 1997
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Hi, My question is serious and I hope you can help, Im

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Hi, My question is serious and I hope you can help,

I'm am preparing to sue my older brother (an attorney) and younger brother who are both Co-trustees of may dad's estate for breach of a settlement agreement rising from a prior breach of fiduciary duty suit in 2003. My older brother is also executor. I am going to have to do this pro se as I cannot afford a lawyer. The settlemnt is "confidential" and apparently, according to my previous lawyer who made the agreement could not be made an order of the court or kept under jurisdiction and he let the case be dismissed "with prejudice". So, I am going to first try a motion for breach on Monday but the judge may well throw it back at me on Monday. In that regard, is there any argument I could use that may help convince the judge to act on the motion?

I have very srong evidence of their breaches of the agreement and I have been told I could also go for breach of fiduciary duty again and get both of them removed. My brothers were supposed to list and sell the family home starting in 2005 and have not, and have rejected offers, etc. My older brother has been continuing to pay himself from my trust, etc and have been clearly benefiting financially from keeping the house unsold. The terms of the agreement specifically direct them to "list and sell the home as soon as practicable for the highest market value offer that is in the best interests of all parties".

Are there any "tricks" so to speak, that my brother may try to pull off during litigation that would screw me up?
Hi. Can you elaborate on the case that was dismissed with prejudice?
Customer: replied 8 years ago.


Hi David.




It was a case for breach of fiduciary duty and self dealing aainst my two brothers, although my older brother was really the "culprit". Anyway, he got my dad when he was sick to make my trust pass to him and his family at my death and make him the trustee with discretion over making any distriutions to me. essentially A "spendthrift trust" for no apperent reason. ( I can't really prove this however).


My mom passed away in 2000 and my dad passed away in 2002. My brothers changed the locks on the house and pretty much took waht they wanted. But, that being said, the central issue is that my brother tried to get me to agree to sell him my 1/3 share of the house for the lowest valuated price at timeof death with is $855,000. There was another apprasial done that came out to $1.15MM and as you know, the market was booming at the time. He refused to negotiate with me and my lawyer so I sued. As the suit progressed, expenses, fees ect became a problem and we settled. Part of the confidential settlement was the he was to make monthly taxable distriutions from my trust and sell the house per what I stated to you before. I suspect my lawyer who made the agreement "cut a deal" behind the scenes to get the trust distriutions for settling with prejudice. The settlement lawyer never explained to me what the implications of that were at the time, nor did he explain that apparently if the agreement is "confidential" it cannot be made an order of the court of held in court jurisdiction.

Customer: replied 8 years ago.


David, Ihave filed the motion for sanctions for breach of the settlement agreement buthave been informed that it is very likely that the judge won't do anything. So, I'll hagve to file a whole new case, most likely pro-se.

From what you've said so far, I don't think you can bring this as a new suit. I think it is correct that you need to try to enforce the settlement agreement. I think that before you consider a new case, you should bring the motion to enforce and to compel the parties to adhere to the terms of the settlement agreement.
Customer: replied 8 years ago.





I am not sure what you're referring to here. I would not try to bring (re-open) the same case up because it was dismissed with prejudice. I have been told that the judge may well deny my motion for breach because they don't retain jurisdiction(?)


So, accordingly, I would have to just file a new lawsuit for breach of the agreement and breach of fiduciary duty. Please claify your understanding of this and re-answer.

My understanding is that there was a suit, you agreed on a settlement, entered into a settlement agreement and then the case was dismissed with prejudice. Check your dismissal filing. Every one I've ever drafted states that the court retains jurisdiction for the purpose of enforcing the terms of the settlement agreement.


Your issue is enforcement of the settlement agreement. It is not a matter requiring a new trial on the merits.

Customer: replied 8 years ago.



Hi David,


Thanks. I do understand that. However, I have reviewed the language of the order and it does not state that. All it states is


"It is hereby ordered:


This matter is hereby dismissed with prejudice pursuant to the parties' agreement to settle all matters in controversey between them".


So, the language here does not seem to rise to a judge determing that this agreement is still held under jurisdiction. Am I wrong about this? Does this language still make the agreement enfocable? Or, again, will I most likely have to file a new case for the Breach of the Settlement Agreement? Thanks for your time. Please respond.

Am I correct that you have a settlement agreement signed by all parties? In that case, I would bring a motion to enforce the terms of the settlement agreement before trying to bring a new case.
Customer: replied 8 years ago.



Hi David,


Yes I do signed by all parties. I have it here in front of me in my file I have prepared when I go to court on the motion I filed for Sanction for Breach of the settlement agreement on Monday morning.


Again, like I said, I am going to try this first. Do you think the language of the order may compel the judge to act?

You have a right to enforce the terms of the settlement agreement. You can't bring a new case, because you have already litigated the subject matter at hand. You are not looking to commence a new matter based on the same set of facts as the previous litigation, and in fact, you cannot re-bring this case because it has been dismissed. However, you are entitled to have the court enforce the terms of your agreement.


I don't know that you will get sanctions granted, but a motion to enforce the agreement is absolutely appropriate.

Customer: replied 8 years ago.



So, what you're saying is that I may have to file another (or amended motion) for enforcement of the agreement but that I cannot file a new case?


So, you're saying that I cannot bring a new case for Breach of the settlement agreement? I find that hard to believe.

If your motion is denied and the judge tells you to bring a new case, then bring it. But I think it would be inappropriate to bring it without a motion to enforce the terms of your agreement.
Customer: replied 8 years ago.



Hi David,


You're the first person who has told me to go for a new suit.


If a judge grants a motion for enforcement, that opens my brothers up to just continuing to jack around with the house for another long period of time. It's already been five years since we signed the agreement and they have definitely breached it.


Again, this has cause tremendous waste and financial loss to me as a beneficiary of the estate. Accordingly, I am still confused about why I could not file a new suit on breach of the Settlement Agreement which terms also say that it is held under the laws of the state of Illinois.

I don't understand your point:


"If a judge grants a motion for enforcement, that opens my brothers up to just continuing to jack around with the house for another long period of time. "


If your motion is granted, then you enforce the terms through the order of the court. And, if they don't comply with the order, then you follow up with a motion for contempt for failure to comply with the court's order.


What good does a new trial do you that can't be accomplished quicker and easier with the motion to enforce followed by a motion to compel (if necessary)?


Additionally, isn't this whole debate premature? You are already bringing the motion, right? So wait and see how the judge rules on the motion.

Customer: replied 8 years ago.



...Sorry, I meant to say that you're the first person (lawyer) to indictae that I may NOT be able to file another suit, as long as it's under a new case number, etc.

Customer: replied 8 years ago.



Hi david.


Yes, you are correct. I am going to see how the judge acts on my motion, of course. But like I said, I am hopeful, but realistic in assuming that the judge will most likely tell me that he/she can't rule on it because they hold no jurisdiction, etc.


So, if that happens on Monday, my concern is that if I then go ahead and file another motion for enforcing the agreement that may give my brothers leeway to continue to procrastinate on listing and selling the house per the terms of the agreement. Accordingly, more time would go by and I would then have to go back to court again and consider a new suit.


However, Do I understand you correctly in that if the judge rules favorably on a motion to enforce the agreement, then he/she would also make stipuations about the timing of what my brothers have to do, etc by the terms of the agreement and the order?

My point is that you have full access to the court with your motion; there would be no need to try to file a new case. Chances are the judge would set your motion for an evidentiary hearing to make a determination as to whether the terms of the agreement have been breached. If you can prove during that hearing that there was a breach, you would be entitled to having the court enforce the terms of the agreement and compelling the other party to remedy the breach.


I obviously haven't seen your motion so I don't know what you have specifically alleged and what you have asked the court to do, but hopefully you have clearly alleged a breach and you have requested that the court enforce the agreement and compel the other party to act in accordance with its terms.

David L and 3 other Estate Law Specialists are ready to help you
Customer: replied 8 years ago.



Yes. I have done all that in this motion for sanctions for breach. Thanks David, I really appreciate your time and help. Let me know if and how I can reach you again through here to update you and ask you further questions of need be based on what happens on Monday 6-28.

You're very welcome. Good luck - I think you've brought your motion in the proper way. Let me know how it goes. I believe you can send direct requests to me through this site.
Customer: replied 8 years ago.


Thanks David. I hope this motion goes well, or, if not, the other motion for enforcement of the agreement.


So, one more question, you feel that a judge certainly should grant my motion for enforcing the agreement?

To be clear, I haven't commented one way or the other on the merits of your motion or whether it should be granted. My point from our discussion is that a motion to enforce is the proper methodology to enforce your agreement, not the filing of a new case. You still have the job of presenting proper evidence to prove that the agreement has been breached and that the court should step in to enforce its terms.


I hope that makes sense.

Customer: replied 8 years ago.



Yes. I realize that.


The merits are clear and they are definitely in breach. I have clear evidence showing that my older brother rehect two offers on the house in direct breach of the agrement. He has ignored the langusge clearly stating that he is to list and sell the house for the highest market valuse offer obtainable...." And he has breached other parts of it as well.



Thanks again David.