Justice EPSTEIN delivered the judgment of the court, with opinion.
¶ 1 Plaintiff, F. John Cushing, administrator de bonis non of the estate of Claudia Zvunca, deceased (Cushing), filed this appeal seeking to reverse the circuit's order that dismissed this case with prejudice as the result of a settlement, as well as numerous other orders entered by the trial court including the September 8, 2009 order discharging his retained counsel,
¶ 4 On January 15, 2002, Claudia Zvunca (decedent), a 32-year-old Romanian immigrant, was struck, run over, and killed by a Greyhound bus she was taking from Las Vegas, Nevada, to Chicago, Illinois, during a stop at the Greyhound bus station in Grand Junction, Colorado. Her minor daughter, Cristina Zvunca (Cristina), who was seven years old at the time, witnessed the accident. Besides Cristina, decedent's only other heir was her husband, Tiberiu Klein, whom she had married in the fall of 2000. Klein, Claudia, and Cristina had immigrated to the United States from Romania on a United States visa lottery program in March 2001. Klein is neither Cristina's biological father nor her adoptive father. The decedent was also survived by her parents (Cristina's grandparents), who later adopted Cristina in Romania.
¶ 6 As we noted in an earlier opinion in this case (Cushing v. Greyhound Lines, Inc., 2012 IL App (1st) 100768, 358 Ill.Dec. 736, 965 N.E.2d 1215)(Cushing I), from the tragic, but relatively straightforward, facts regarding Claudia Zvunca's death, arose at least 13 lawsuits in various state and federal courts. Among these were legal malpractice suits and two wrongful death actions, proceeding simultaneously in Illinois and Colorado. This court has also had before it over 25 appeals related to this case, many of which were filed by Klein in his continuing attempt to intervene in this matter as the party entitled to represent "Cristina's" interests. In 2005, another panel of this court affirmed the trial court's decision to deny Greyhound's motion to stay the Illinois action. Marshall v. Motor Coach Industries International, Inc., No. 1-05-0701, 359 Ill.App.3d 1190,
¶ 7 As one of the trial judges involved in this case aptly noted, although this case was originally filed in 2002, it "has since been mired in delays and impeded in its resolution." The trial court made that observation more than three years ago. More recently, a federal court commented on the "morass" that had developed in this matter and pointedly observed that the motions for sanctions before that court had resulted from a "convoluted attorney-created procedural labyrinth." MB Financial, N.A. v. Stevens, No. 11 C 798, slip op. at 1, 2011 WL 5514059 (N.D.Ill. July 5, 2011) (unpublished memorandum opinion and order). We echo that sentiment. There, the federal court awarded sanctions against attorney David Novoselsky in favor of Cristina Zvunca and attorney Jeanine Stevens. The court explained that "[c]ompletely untangling" that labyrinth was unnecessary for purposes of its ruling on the motions for sanctions. Id. The same was true here for the plethora of motions brought by the various parties, putative parties, and their attorneys that we have already ruled upon. The disposition of the instant appeal, however, does require significant additional untangling.
¶ 8 In Cushing I, we explained that the lengthy and somewhat confusing procedural history is due in part to the simultaneous existence of the two wrongful death actions based on the same death. Yet that is just one part of the "convoluted attorney-created procedural labyrinth" that we address below. We include much of the procedural background from Cushing I, which we have augmented, revised and updated, by reviewing the 105 volumes of record filed in this appeal and the law of the case (including our records from the three prior appeals decided by this court). We have also taken judicial notice of court pleadings and court orders to facilitate an understanding of the multiple issues now raised in this appeal.
¶ 9 In this opinion we include a quite lengthy procedural background. In addition to containing the history necessary for an understanding of the legal issues raised in this appeal, we have included additional history for other purposes. First, this procedural background will provide this court with a reference for related appeals now filed in this matter and not yet ready for disposition, as well as other matters that should arise in the future. More importantly, we believe that it provides a contextual framework for the trial court upon remand, as well as the Attorney Registration and Disciplinary Commission (ARDC). We are mindful that the length of this opinion creates burdens for the reader and for that we apologize.
¶ 11 On May 3, 2002, in Cook County, Klein, "individually and as Executor of the Estate of Claudia Zvunca," filed a wrongful death and survival action against Greyhound Lines, Inc. (Greyhound), and its driver, Wesley Jay Tatum (No. 02 L 5584). Motor Coach was not named as a defendant at this point. Klein alleged in the complaint that he was Cristina's guardian
¶ 12 On or about February 19, 2003, Klein retained the law firm of Cogan, McNabola & Dolan, LLC (the Cogan firm), as substitute counsel. Cogan & McNabola, P.C. v. Klein, No. 1-09-0848 (2010) (unpublished order under Supreme Court Rule 23). The Cogan firm represented Klein in the Colorado action.
¶ 13 Due in part to Klein's change in counsel, an earlier scheduling order was superseded by a supplemental scheduling order, which left the deadline for amending pleadings and adding parties unchanged.
¶ 15 In November 2003, Klein filed a petition in the probate division of the circuit court of Cook County to appoint Greg Marshall as the independent administrator of the decedent's estate. Marshall was a paralegal in the Cogan firm. The probate division granted Klein's petition.
¶ 17 On January 13, 2004, two days before the expiration of the statute of limitations, Klein filed a motion for leave to file a first amended complaint to add bus designer Motor Coach as an additional defendant in the Colorado case and to assert a product liability claim against it. Greyhound opposed the motion.
¶ 19 On January 15, 2004, the Cogan firm filed a wrongful death and survival complaint in Cook County against Motor Coach (No. 04 L 497). The plaintiff again was Greg Marshall, as administrator of the estate of Claudia Zvunca, deceased.
¶ 21 On March 24, 2004, nunc pro tunc March 23, 2004, the Colorado court denied, as untimely, Klein's motion to amend his complaint to add Motor Coach.
¶ 23 On April 6, 2004, the circuit court of Cook County granted leave to the Cogan firm to amend Marshall's complaint to add Greyhound and Tatum as defendants.
¶ 25 On April 27, 2004, Klein signed a legal services agreement with the law firm
¶ 27 On May 13, 2004, Greyhound and Tatum filed a motion to dismiss in case No. 04 L 497.
¶ 29 In case No. 04 L 497, the Clancy firm substituted as counsel for Marshall. (The Clancy firm also later replaced the Cogan firm as Klein's counsel in the Colorado action.) In May 2004, case No. 04 L 497 was voluntarily dismissed.
¶ 31 On September 14, 2004, the Clancy firm filed the underlying action in the circuit court on behalf of Greg Marshall, as independent administrator of the estate of Claudia Zvunca, deceased, and Cristina Zvunca, a minor, by Paul Brent, as next friend, against Motor Coach, Greyhound, and Tatum (No. 04 L 10431). Count I alleged strict liability/wrongful death against Motor Coach and sought recovery on behalf of both Klein and Cristina. Count II was a strict liability/survival count against Motor Coach. Count III alleged negligence/wrongful death against Motor Coach and sought recovery on behalf of both Klein and Cristina. Count IV was a negligence/survival count against Motor Coach. Count V alleged common carrier liability/wrongful death against Greyhound, and Tatum and sought recovery for Cristina, but not for Klein. Count VI was a common carrier liability/survival count against Greyhound and Tatum. Count VII, brought by Paul Brent, on behalf of Cristina, alleged negligent infliction of emotional distress against Motor Coach. Count VIII, also brought by Brent, on behalf of Cristina, alleged negligent infliction of emotional distress against Greyhound and Tatum. The case was assigned to Judge Susan Zwick.
¶ 33 On October 8, 2004, the Clancy firm, on behalf of Klein, moved for reconsideration of the 2002 order transferring the case to Colorado, and requested that the case be transferred back to the Northern District of Illinois. Klein noted that the Illinois case had been filed in which Motor Coach, an Illinois corporation, was an additional defendant. Klein contended that, by transferring the Colorado action back to Illinois, all claims could ultimately be consolidated in a single forum before a single judge and tried to a single jury. In the alternative, Klein sought a determination that Cristina's claim for damages was not at issue in the Colorado action. Greyhound opposed Klein's motion.
¶ 34 On November 15, 2004, the Colorado court denied Klein's motions, holding that consolidation "would not be realized because there is no diversity jurisdiction for the claims in the state court action so there can be no consolidation with [the Colorado federal court] case if it is returned to the Northern District of Illinois." The court further stated that retransfer would be prejudicial to the defendants there, as the case had been pending for more than two years and was ready for trial. The court also ruled that any claim for damages sustained by Cristina on her own behalf was not an issue in the litigation in which she was not a party. (Unlike the Illinois action, the Colorado action contained no counts regarding Cristina's emotional distress.) The court specifically refused
¶ 36 In November and December 2004, Greyhound filed several motions in the Illinois action including: a motion to dismiss the complaint as duplicative of the Colorado action; a motion to dismiss the wrongful death and survival claims as time barred; a motion to sever the claims against Greyhound so that they could be transferred to Colorado; and a motion to stay, as an alternative to dismissing the action. The circuit court dismissed the survival count as time barred but denied all of the other motions. On March 18, 2005, Greyhound filed an interlocutory appeal from the denial of its motion to stay the proceedings, arguing that the trial court should have stayed the Illinois action pursuant to section 2-619(a)(3) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(3) (West 2004)) because it was duplicative of the Colorado action.
¶ 38 Meanwhile, Greyhound actively defended the Colorado action. On April 5, 2005, Greyhound filed a motion to set pretrial conference and jury trial. On April 15, 2005, the federal court in Colorado denied Greyhound's motion and stated:
¶ 40 While appeal No. 1-05-0701 was pending, the Clancy firm, on behalf of "plaintiff, Cristina Zvunca, a minor, by next friend Paul Brandt" (also referred to as Paul Brent) filed an emergency motion to appoint Marina E. Ammendola as guardian ad litem for Cristina. The motion stated: "It appears that the assistance of a Guardian ad Litem is necessary for the prosecution of Cristina's case and that a Guardian ad Litem would be in a better position to assist in the prosecution of Cristina's case than Mr. Brandt, as her next friend." On May 12, 2005, the court appointed Marina Ammendola as Cristina's guardian ad litem (GAL). On May 13, 2005, pursuant to Klein's verified petition, the probate division appointed Cushing as the independent administrator de bonis non of Claudia's estate, to replace Marshall, who had resigned on April 27, 2005. On May 19, 2005, the Clancy firm filed an amended complaint in case No. 04 L 10431 containing the same counts as the original complaint but substituting Cushing for Marshall, and GAL Ammendola for Paul Brent. The court later granted a motion to amend the caption accordingly. On August 26, 2005, Cushing signed a legal services agreement with the Clancy firm. On
¶ 42 During the school year 2005-06, Cristina resided with Stevens. As further detailed below, Novoselsky would later file actions in both state court (No. 09 L 6397) and federal court (No. 08 C 4507) against Stevens, among others, related to this time period. We also note that the record contains an affidavit of Cristina's grandmother, and mother by adoption, Maria Zvunca, dated April 17, 2010, submitted in the federal court case, stating that she and her husband gave permission for Cristina to reside with Stevens.
¶ 44 In appeal No. 1-05-0701, the Clancy firm, on behalf of plaintiffs, argued that the trial court correctly denied Greyhound's motion to stay the Illinois action. Plaintiffs also argued, inter alia, that the Illinois action and the Colorado action were based on different underlying issues and that Klein and Cristina were not the same party because they were not in privity and their interests were not sufficiently similar. They noted that Cristina's damages, on her own behalf, (i.e., her emotional distress claims) were not at issue in the Colorado action. They asserted "Klein's 2002 complaint, which was originally filed in the circuit court of Cook County, was improperly filed under Illinois law because the action should have been filed by a court-appointed administrator of Claudia's Estate and only after notice was given to all interested parties, including Cristina." The Clancy firm asserted that Cushing did not seek damages on behalf of Klein against Greyhound in the Illinois action. The Clancy firm argued that, even if the court should determine that the Illinois action and the Colorado action had been brought by the "same party for the same cause," the discretionary factors, including comity, weighed in favor of denying the stay. In support of this latter argument, the Clancy firm referred to the April 15, 2005 court order in which the federal court in Colorado ruled that the Illinois action took precedence. The Clancy firm noted that resolution of the Colorado action would not result in complete relief because Motor Coach could not be joined as a defendant, and it would deprive Cristina recovery for her own injuries.
¶ 45 Greyhound argued that plaintiffs were "piggy-backing their claims against Greyhound onto their claims against Motor Coach in an exploitative attempt to negate Greyhound's proper transfer of Klein's case to Colorado."
¶ 46 On September 30, 2005, another panel of this court entered a summary order in appeal No. 1-05-0701 and affirmed the trial court's decision to deny Greyhound's motion to stay the Illinois action. The panel concluded that Greyhound did not "establish the threshold requirement that the [Colorado] action involve[d] the same parties." As the court stated:
¶ 48 While appeal No. 1-05-0701 was still pending, Greyhound, along with Motor Coach, pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. July 1, 2004), petitioned this court for leave to appeal the January 18, 2009 denial of its forum non conveniens motion (appeal No. 1-05-1463). On August 29, 2005, prior to this court's ruling on the petition for leave to appeal, the circuit court placed the case on an accelerated docket and set the case for trial certification by December 2, 2005. On September 16, 2005, this court granted defendants' petition for leave to appeal pursuant to Supreme Court Rule 306(a)(2). On September 29, 2006, the same panel that decided appeal No. 1-05-0701 entered a summary order and affirmed the trial court's denial of the forum non conveniens motion. Cushing v. Greyhound Lines, Inc., No. 1-05-1463, 367 Ill.App.3d 1083, 340 Ill.Dec. 860, 929 N.E.2d 164 (2006) (unpublished order under Supreme Court Rule 23).
¶ 50 On February 23, 2007, Klein, pro se, filed a legal malpractice suit against various defendants including Cushing, Marshall, Stevens, the Clancy firm, the Cogan firm, Greyhound's counsel, and the law firm that filed his 2002 wrongful death action. The case was later voluntarily dismissed and Klein's motion to reinstate the case was denied in April 2009.
¶ 52 During 2007 and 2008, Klein filed a number of petitions to remove Cushing and to intervene in the Illinois action, all of which were denied. Novoselsky assisted Klein in his efforts, as we discuss below.
¶ 54 After Greyhound's unsuccessful interlocutory appeals in the Illinois action, a mediation took place on June 28, 2007, which did not settle the case. On July 10, 2007, Greyhound filed a motion for sanctions for mediating in bad faith (which was later denied), and a motion to stay discovery for a determination of whether Stevens could continue as counsel. Noting that Cristina had lived with Stevens for nine months (between September 2005 and June 2006), Greyhound contended that Stevens would be a witness to Cristina's emotional distress and had a conflict of interest. Greyhound also sought to depose Stevens.
¶ 56 On July 10, 2007, in addition to the motions noted above, Greyhound also filed a motion to compel Cristina's deposition, which it claimed it had been seeking since 2005.
¶ 58 During a hearing on July 11, 2007, the court addressed Greyhound's motion, joined by Motor Coach, to depose Stevens. Although Judge Zwick stated that she took it as a motion to disqualify, Greyhound attorney Brian Schroeder disagreed and stated "[w]e're not there yet." Schroeder argued that Stevens was a witness because Cristina had lived with her for nine months. He stated that Stevens's observations of Cristina were "directly relevant to [Cristina's] damages claim." Schroeder also moved to depose GAL Ammendola, which Motor Coach joined, because he wanted to know "when she's spoken to [Cristina] and about what." Stevens stated that she thought GAL Ammendola was the appropriate deponent, and not her, because GAL Ammendola could "address the issue as to why [Cristina] lived in her home." Judge Zwick stated that "if Ms. Stevens is a caretaker, then she's a material witness and then her qualifications to continue as an attorney may very well be called into question." Schroeder stated that he could not file a motion to disqualify Stevens until he took her deposition. Judge Zwick decided that the motion was premature and it was entered and continued.
¶ 59 The court then addressed the issue of Cristina's deposition. Stevens objected to Cristina being deposed based upon a determination made by Cristina's treating medical professional (the transcript references physician, psychologist, and social worker) that discussing the event would revest it with Cristina and cause her permanent harm. The court stated that it could not make a determination until it heard the medical evidence which might involve taking the medical professional's deposition or allowing defendants to have an independent medical examination.
¶ 60 GAL Ammendola recommended having only "one examination" and "not the Plaintiff's examination and the Defendant's examination, but a Court independent examination separate and apart to really look at what we're going to do to this child." She further noted that there were 40 witnesses and other people who were present, and suggested that the issue of Cristina's deposition did not need immediate resolution. GAL Ammendola also stated that, at that point, she would "strongly oppose" having Cristina examined by somebody that either the plaintiff or the defendant wanted.
¶ 62 On July 17, 2007, the court again addressed the issue of whether it was in Cristina's best interests to give a deposition. Citing Ott v. Little Company of Mary Hospital, 273 Ill.App.3d 563, 210 Ill.Dec. 75, 652 N.E.2d 1051 (1995), the court noted that it considered GAL Ammendola as an attorney for the child. After noting that she had not requested any report from the GAL, and further noting that she was the motion judge only, Judge Zwick stated:
¶ 63 Regarding the issue of traumatization, the court gave the date of September 7, 2007 for deciding how plaintiffs wanted to proceed and set a status hearing for September 12, 2007.
¶ 65 The record shows that, in about July 2007, Klein and Greyhound attempted to obtain a settlement in the Colorado action which would be premised upon the Illinois action being dismissed. Klein requested that James Avery, the attorney representing Klein in the Colorado action, confirm this to Maria Zvunca and confirm that they had discussed a potential offer of $8 to $9 million conditioned upon the Colorado action being amended to add Motor Coach and Cristina's grandmother appearing before the Colorado court and agreeing to "close all claims" in Illinois.
¶ 66 The record contains a copy of a letter dated July 12, 2007, to Klein and Maria Zvunca from Avery. Avery stated that the purpose of the letter was to relate a conversation he had with Greyhound's attorney, Schroeder, and to discuss settlement strategy. Avery stated that Schroeder said Greyhound was willing to discuss settlement of the case with Avery and was willing to offer more than $250,000, but would not offer more so long as Stevens was on the case. According to Avery, Schroeder stated that "it was because of her offensive behavior, and that she [had] been unprofessional in her approach to the settlement discussions and [had] offended all of the defense lawyers and legal representatives (decision makers) for Greyhound and [Motor Coach]." Avery stated that he had told Schroeder that he had been recently retained by Maria Zvunca, and "at her request," was "taking steps to remove Stevens, Ammendola and Cushing from the case." The settlement "strategy" involved settling the case in Colorado, with Motor Coach added by agreement of the parties, and dismissing the case in Illinois. However, Avery asserted "[w]e did not discuss a settlement figure in this conversation." Avery additionally stated that an incidental benefit would be that a federal judge would likely decide all issues related to attorney fees. Avery also stated "I suspect that the judges in Illinois will want to see their `bar members' get handsome recoveries whether they deserve it or not."
¶ 68 On August 2, 2007, GAL Ammendola wrote a letter to Dr. Bennett Leventhal, a pediatric psychiatrist, and requested that he make a determination as to whether Cristina could give a deposition. She provided him with copies of Cristina's prior treatment records and the police report of the accident for his review. Dr. Leventhal concluded, in a letter dated September 6, 2007, that he did not think it was appropriate for Cristina to give a deposition.
¶ 70 On September 11, 2007, and apparently again on January 31, 2008, the trial court requested a current evaluation before ruling on whether it was in Cristina's best interests to give a deposition. On February 20, 2008, GAL Ammendola faxed a letter to Klein, who was Cristina's temporary guardian at the time, urging his cooperation. GAL Ammendola offered Klein three options: (1) agree to take Cristina to the appointment scheduled with the pediatric psychiatrist; (2) agree to allow GAL Ammendola to take Cristina to the appointment; or (3) refuse to take her and refuse to cooperate with the evaluation.
¶ 72 Meanwhile, on November 8, 2007, Klein, pro se, filed a petition in the probate division for guardianship of Cristina.
¶ 74 On January 24, 2008, Judge Zwick, denied Avery's petition for admission pro hac vice and motion on behalf of Klein to intervene and to stay the proceedings.
¶ 76 On February 21, 2008, the day after GAL Ammendola's written request to Klein to cooperate, David Novoselsky faxed a letter to GAL Ammendola informing her that he had been "retained by Klein to represent his interests in this matter." The letter requested that GAL Ammendola telephone Novoselsky. On February 28, 2008, and again on March 6, 2008, GAL Ammendola sent letters to Novoselsky in which she noted that he had not yet responded to her telephone calls or letters, and she requested that he please inform her of his client's decision regarding Cristina's evaluation.
¶ 77 On March 11, 2008, the trial court ordered that Cristina be produced for a medical examination by the pediatric psychiatrist. On March 12, 2008, pursuant to Illinois Supreme Court Rule 215 (eff. July 1, 2002), Greyhound moved for a medical examination by its own expert. On April 7, 2008, Novoselsky sent a letter to GAL Ammendola stating that he had met with Klein, Cristina and her adoptive parents and they agreed to the examination by the pediatric psychiatrist. Novoselsky further informed GAL Ammendola that he had been retained not only by Klein, but also by Cristina's grandparents and would be moving to remove Stevens because she had been quite hostile to Klein and the grandparents.
¶ 79 After being retained by Klein, Novoselsky filed his appearance on March 27, 2008 in the first probate case involving Claudia's estate (No. 03 P 8718), "on behalf of Mr. Tiberiu Klein."
¶ 80 On April 14, 2008, one week after sending his letter to GAL Ammendola, Novoselsky filed a motion to intervene as a matter of right in the underlying action on behalf of "Tiberiu Klein, as Temporary Guardian of Christina [sic] Zvunca, a Minor, Maria Zvunca, the Mother by adoption of said Minor, and Vasile Zvunca, the Father by adoption of said Minor."
¶ 81 On April 23, 2008, GAL Ammendola again wrote to Novoselsky urging his clients' cooperation with the court order regarding the medical evaluation of Cristina. GAL Ammendola stated that Klein's and the Zvunca's "lack of cooperation and obstructive conduct is only detrimental to Cristina's interests. It is unquestionable that a current and present assessment of Cristina is in her best interests, and necessary for her case." Nonetheless, Novoselsky's clients continued to not cooperate.
¶ 83 On May 6, 2008, Novoselsky filed, on behalf of Klein and the Zvuncas, two motions for substitution of judge directed at Judge Zwick: one as a matter of right and the other for cause.
¶ 85 On May 8, 2008, at his deposition, Dr. Leventhal testified that there were two reasons he did not think it was appropriate for Cristina to give a deposition: (1) she had not been adequately engaged in a
¶ 86 Dr. Leventhal further testified that, after his September 6, 2007 letter, GAL Ammendola again contacted him, asked him to review additional materials, and perform an evaluation of Cristina. He also stated that he scheduled Cristina for two evaluations but she was not brought to him.
¶ 88 After Klein retained Novoselsky to represent his interests in the underlying action, Novoselsky assisted Klein in his efforts to obtain guardianship of Cristina in the probate case that Klein had filed pro se. After GAL Ammendola filed a response opposing Klein's pro se petition for guardianship of Cristina, Novoselsky filed an amended petition on Klein's behalf.
¶ 89 On May 29, 2008, a hearing was held before Judge Kathleen McGury in the probate division on Klein's petition for appointment as plenary guardian. Novoselsky appeared on behalf of Klein. GAL Ammendola appeared and objected to Klein's appointment. Novoselsky contended that GAL Ammendola had no standing to object because she had been appointed by "the [j]udge presiding over the negligent infliction of emotional distress and wrongful death action [i.e., the instant action] relating to Cristina's mother." Novoselsky further claimed, however, without reference to authority that "the GAL was appointed for a very limited purpose — to review the settlement offer on behalf of the minor." Novoselsky argued that, as a then-14-year-old, Cristina could nominate Klein as guardian of her person and estate, pursuant to section 11-5(c) of the Probate Act of 1975 (755 ILCS 5/11-5(c) (West 2008)). He additionally argued that the actions taken by Klein and his Colorado attorney were "completely irrelevant." He also noted that any money recovered in the wrongful death action would probably go to a financial guardian like Northern Trust and not to Klein. Novoselsky argued that "we keep playing games, wasting this child's money on a fight from a discharged lawyer and a guardian appointed by the discharged lawyer," a guardian "who styles herself as the plaintiff." He also contended that GAL Ammendola had threatened the minor and made her nervous.
¶ 90 GAL Ammendola responded that she was appointed by Judge Zwick to be the minor's guardian ad litem and attorney and had been named as a representative plaintiff in the lawsuit. She noted that she had been appointed in 2005 and Novoselsky had been in the case for less than five months. Contrary to Novoselsky's
¶ 91 Judge McGury allowed GAL Ammendola time to respond and set a briefing schedule and hearing date.
¶ 93 On June 3, 2008, Judge Zwick denied Klein's motion to intervene and ruled that the motions for substitution of judge were moot. In her written order, Judge Zwick noted that the petition to intervene stated that Klein had been appointed as Cristina's temporary guardian even though the petition predicated Klein's interest in this litigation on his status as the decedent's husband and his claim that his interests would not be adequately represented by the attorneys representing the estate, with whom Klein had a conflict. The court concluded that the estate had been aggressively represented throughout the litigation. The court noted that, at the time the petition to intervene was filed, all discovery relating to liability had been concluded, including expert discovery. The court further noted that, with the exception of Cristina's testimony, the case was ready for trial. Also, the court concluded that the July 2007 negotiations to settle the Colorado action, described earlier, suggested that Klein's interests and Cristina's interests were in conflict, and that allowing Klein to intervene might prejudice the rights of the original parties, including Cristina.
¶ 94 As to the Zvuncas (Cristina's grandparents/adoptive parents), the court noted that "[a] Guardian ad Litem was appointed to protect the rights of the minor, Cristina, and the Guardian [ad Litem] has served in this capacity since May 2005." The court concluded that the Zvuncas were strangers to the lawsuit and had not contended that the guardian ad litem had not adequately represented the minor but instead complained only that she had taken steps that were against the wishes of the family.
¶ 96 On June 5, 2008, at a status hearing, Judge Zwick reiterated that she wanted an updated examination before ruling on Greyhound's motion to compel Cristina's deposition or Greyhound's Rule 215 motion. The court ordered GAL Ammendola "to attempt evaluation of Cristina by [the pediatric psychiatrist] on or before June 20, 2008."
¶ 98 On June 10, 2008, Novoselsky sent GAL Ammendola a letter in which he stated, among many other things, that he represented Cristina and Klein, who was Cristina's "lawful guardian, albeit temporary." Novoselsky informed GAL Ammendola, the court-appointed guardian ad litem, that she could not speak to Cristina, and that he was preparing a motion for sanctions against her for doing so, which
¶ 100 Before ruling on Klein's petition to be appointed Cristina's plenary guardian, the probate court, on June 27, 2008, appointed Leonard Malkin as guardian ad litem for Cristina in the probate case. The reason for his appointment was twofold: (1) to determine whether a conflict existed between Cristina and Klein; and (2) to determine if Cristina felt she was influenced or overly influenced by Klein or her grandparents.
¶ 102 On July 3, 2008, a hearing was held before Judge Thomas L. Hogan on Greyhound's motion for rule to show cause as to why Vasile and Maria Zvunca should not be held in contempt for failing to appear at their depositions pursuant to Greyhound's subpoenas. Previously, Novoselsky had filed a motion for substitution of Judge Zwick for cause. She had therefore transferred the case to the assignment judge for reassignment of the hearing on Greyhound's motion. It was assigned to Judge Hogan, who undertook to determine who represented whom. Judge Hogan told Novoselsky, "with all due respect, without an appearance on file, you don't have a dog in this hunt outside of as the counsel for the people whose depositions are being sought."
¶ 104 On July 11, 2008, the court denied Greyhound's Rule 215 motion but granted Greyhound leave to file a motion to bar Cristina from testifying at trial and to dismiss Cristina's negligent infliction of emotional distress claims.
¶ 106 In a report filed under seal on July 17, 2008, GAL Malkin noted that he met with Cristina, Klein, Maria and Vasile Zvunca in GAL Malkin's office. No one else was present when he interviewed Cristina and then Klein. He interviewed Maria and Vasile together with a Romanian interpreter who had been provided by Novoselsky. He concluded, based on these interviews, that there was no conflict between Cristina and Klein and no conflict with respect to the proceeds of any personal injury action that may be forthcoming. He also stated he did not find any undue influence over Cristina on the part of Klein or the grandparents. He also recommended that the court meet with Cristina in chambers without the attorneys or guardians ad litem being present.
¶ 108 On July 18, 2008, a hearing was held before Judge McGury. She spoke to Cristina alone in her chambers with only a court reporter present. Cristina, who was 14 years old at the time, told Judge McGury that she wanted Klein to be her guardian. Cristina also told Judge McGury that she did not want to see the pediatric psychiatrist
¶ 110 On July 18, 2008, after Novoselsky's assistance, Klein was appointed plenary guardian of the "estate and person" of Cristina. Thus, the estate for Cristina Zvunca was opened. There is no transcript of the hearing on the petition and it is unclear whether the probate division was informed of the prior proceedings in the law division, or the disposition of appeal No. 1-05-0701 in which this court had specifically noted that Klein had "not been appointed to act as [Cristina's] guardian" and further explained that Klein's interests and Cristina's interests were potentially divergent. Marshall v. Motor Coach Industries International, Inc., No. 1-05-0701, slip op. at 2-3, 359 Ill.App.3d 1190, 328 Ill.Dec. 728, 904 N.E.2d 1238 (2005) (unpublished order under Supreme Court Rule 23). It is also unclear if the probate division was aware of Klein's attempt to intervene in the Illinois action after this court had explained that Cristina and Klein "may disagree about how a potential settlement with defendant should be [distributed] between the wrongful death [claim and Cristina's individual claim for] negligent infliction [of emotional distress.]" Id. at 3. Also notable is the fact that, according to the record, on August 6, 2008, less than three weeks after Klein was appointed her plenary guardian, Cristina returned to Romania with her grandparents. It appears that GAL Malkin was unaware that Cristina would be leaving the United States. Although GAL Malkin had stated in his report that the grandparents were leaving, he did not state that Cristina was leaving. Although he asked Cristina about her status in the United States, she told him she was a permanent resident with a green card, Klein had applied for that green card for her, and she could continue to live in the United States for the rest of her life. Also, the grandparents told GAL Malkin that Cristina wanted to stay in the United States and would visit Romania during school breaks. Moreover, GAL Malkin noted that Klein stated that Cristina needed a stable domicile, could not keep going back and forth, needed some tutoring and "guidance in her life," and that "he [would] take that responsibility."
¶ 112 On July 18, 2008, Novoselsky filed an emergency request to intervene as a matter of right before Judge Richard Elrod. Novoselsky told Judge Elrod that he was "the attorney for both Cristina Zvunca as well as Tiberiu Klein, who [was] the guardian according to the Order of the Probate Court Friday, [and] also counsel for the adoptive parents[.]" Judge Elrod noted that Judge Zwick had previously denied Novoselsky's petition to intervene and told Novoselsky he was not a party to the litigation and asked him to step out.
¶ 114 On July 24, 2008, Judge Zwick denied defendants' motion to disqualify Stevens from further representation in the Illinois action and Greyhound's motion to depose her. Defendants, citing Rule 3.7 of the Illinois Rule of Professional Conduct, had contended that Stevens had impermissibly combined the role of advocate and witness by allowing the minor to reside with her during the 2005-06 school year. Judge Zwick noted that any facts elicited from Stevens "would be cumulative to the factual and expert testimony proffered by numerous other witnesses."
¶ 116 Meanwhile, as a precaution against the court granting Greyhound's motion to remove Stevens as counsel, Cushing decided he needed to retain additional counsel. Cushing advised the probate division of Greyhound's claims and obtained permission to retain additional counsel. Cushing signed a legal services agreement with the law firm of Leahy & Hoste (the Leahy & Hoste firm) and the Clancy firm whereby each firm was to receive 50% of the total fees in connection with the underlying action. Judge James Kennedy approved the retention of the Leahy & Hoste firm as additional counsel in the underlying action. GAL Ammendola filed a motion for leave to retain the Leahy & Hoste firm as additional counsel for Cristina. Later, on January 16, 2009, GAL Ammendola signed a legal services agreement with both the Clancy firm and the Leahy & Hoste firm whereby each firm was to receive 50% of the total fees in connection with the underlying action.
¶ 118 On July 31, 2008, less than two weeks after he had helped Klein get appointed as Cristina's plenary guardian in the probate division, Novoselsky filed a "Substitution Appearance on behalf of Cristina Zvunca."
¶ 119 On August 12, 2008, Novoselsky, on behalf of Klein, individually and as guardian of the person and estate of Cristina Zvunca, and Maria and Vasile Zvunca, filed an emergency motion to remove the guardian ad litem. On the same day, he filed revised motions for substitution of judge directed at Judge Zwick. These were transferred to Judge Deborah Dooling.
¶ 120 On August 13, 2008, Judge Deborah Dooling denied the motion for substitution of judge. In her written order, Judge Dooling noted numerous counsel had appeared before her on August 12, 2008, including Novoselsky representing "Klein." She also noted that, before any hearing on the substitution of judge could begin, Stevens had objected to Novoselsky filing anything, claiming that he represented a potential beneficiary and not a named party to the lawsuit. Judge Dooling noted that she had instructed Novoselsky to provide documentation by 5 p.m. on August 12, 2008, indicating that he represented a named party. He had not done so by August 13, 2008, and the motion was therefore denied.
¶ 121 We note that, between May 6, 2008 and August 6, 2009, Novoselsky filed 20 substitution of judge motions directed at Judge Zwick. Some of the motions were filed in the name of Klein, while others were filed in the name of the Zvuncas, or both Klein and the Zvuncas. None of the motions were granted.
¶ 123 On August 6, 2008, Greyhound filed a motion to reconsider the order of July 24, 2008, denying its motion to disqualify Stevens and the Clancy firm from representing the decedent's estate or the interests of Cristina. Greyhound argued that it had learned of additional statements made by Cristina which made Stevens's testimony all the more necessary.
¶ 125 On August 8, 2008, Novoselsky, on behalf of "Vasile Zvunca and Maria Zvunca, individually and as next friend of a minor, Cristina Zvunca" filed an action in federal court against defendants Motor Coach, Greyhound, and Tatum (No. 08 C
¶ 127 On May 12, 2009, Judge Zwick denied Greyhound's motion to reconsider the order of July 24, 2008, denying its motion to disqualify Stevens and the Clancy firm from representing the decedent's estate or the interests of Cristina. In her memorandum order, Judge Zwick concluded as follows:
¶ 129 Cushing, Stevens, the Clancy firm, and GAL Ammendola filed motions to dismiss the amended complaint in the federal action (No. 08 C 4507). On February 6, 2009 (noting the claims against Motor Coach, Greyhound, and Tatum had been severed), the court granted several of the motions to dismiss but concluded that the amended complaint sufficiently alleged a complaint for intentional infliction of emotional distress on the part of Cristina against Stevens. Thereafter, plaintiffs filed a second amended complaint, attempting to reassert the dismissed claims. Defendants again filed motions to dismiss. On June 4, 2009, as before, the federal court granted several motions to dismiss.
¶ 130 Cristina's count for intentional infliction of emotional distress against Stevens was the sole remaining count. As noted earlier, however, Maria Zvunca later submitted an affidavit in this case, dated April 17, 2010. She stated that she and her husband gave permission for Cristina to reside with Stevens. She further stated that Cristina never complained about the way Stevens treated her and that, based on her conversations with Cristina, she believed Cristina was well treated and therefore she "had no reason to even contemplate the possibility of commencing a lawsuit against Ms. Stevens for purportedly mistreating Cristina." Moreover, Maria Zvunca stated that "[a]t no time did I or my husband request or consent to the filing of [federal action No. 08 C 4507]"
¶ 131 In its June 4, 2009 order, the federal court stated:
The case was dismissed for want of prosecution on October 22, 2009.
¶ 133 On June 1, 2009, Novoselsky filed a complaint in state court (No. 09 L 6397) containing allegations similar to those contained in the federal suit he had filed in 2008. This state court action will be discussed further below.
¶ 135 On July 16, 2009, Judge Daniel M. Locallo was assigned to hear Greyhound's motion for substitution of Judge Zwick for cause. On July 17, 2009, Novoselsky filed an emergency motion to join Greyhound's motion arguing that his conduct and that of his clients had been placed in issue. Judge Locallo allowed Novoselsky's motion to join.
¶ 136 On August 6, 2009, Novoselsky filed eight additional motions for substitution of judge. Some were filed on behalf of Klein, both individually and as Cristina's guardian. Some were filed on behalf of Cristina, a minor. Some were filed on behalf of the estate of Cristina. Some were for cause and some were as of right. Some were motions to join Greyhound's motion.
¶ 138 On August 6, 2009, during a hearing before Judge Locallo, Novoselsky presented the eight motions for substitution of judge directed at Judge Zwick. The record indicates that the hearing was held to determine whether the clients being represented by Novoselsky — Klein, Cristina, and Cristina's grandparents — were "necessary parties" for the purpose of this litigation. Present during the hearing, besides Judge Locallo and Novoselsky, were attorneys for both defendants, as well as attorneys Peter Hoste and Thomas Leahy. Not present were GAL Ammendola or Stevens. It is unclear whether Cushing was present. Novoselsky argued that he represented Cristina and her estate, that they were necessary party plaintiffs, and they were not being represented in the proceedings.
¶ 139 Novoselsky's position was that "[e]verybody had a conflict." He then delineated the reasons. Novoselsky argued that certain attorneys had a conflict of interest, including Stevens and the Leahy & Hoste firm. Novoselsky stated that "Ms. Stevens' position is [Klein] has his own lawsuit someplace else." He also referred to the federal suit he had filed against Stevens, on behalf of the Zvuncas, individually and as next friend of the minor, Cristina in support of his argument that Cristina was not being represented by Stevens. He suggested that the Leahy & Hoste firm represented Ammendola. He also argued that Marina Ammendola could not be "the lawyer, the GAL, and the plaintiff." Novoselsky stated that GAL Ammendola was reporting to Judge Zwick even though his clients, including Cristina, wanted Judge Zwick removed. Novoselsky also indicated he would deal with that situation by having GAL Ammendola removed.
¶ 140 Judge Locallo referenced a transcript from July 18, 2008, in which Judge McGury of the probate division spoke to Cristina outside the presence of the attorneys. As noted earlier, Cristina, who was 14 years old at the time, told Judge McGury that she did not want to see Dr. Leventhal because she did not "have any mental problems" and asked Judge McGury "[w]hy can't Ms. Ammendola leave us alone?" We note that Judge McGury responded:
¶ 141 Judge Locallo was concerned that Judge Zwick did not subsequently speak to Cristina, and that GAL Ammendola did not raise the problem before Judge Zwick. Hoste noted that "Judge Zwick was aware of the hearing [before Judge McGury] because that was brought by a motion by Novoselsky to remove the guardian ad litem." Novoselsky noted, however, that Judge Zwick refused to hear the motion.
¶ 142 Hoste also stated that the hearing before Judge Locallo was not on a petition to remove Ammendola as the guardian and "if that was the case," he would have witnesses. Judge Locallo stated that he was not addressing the petition to remove GAL Ammendola. Instead, Judge Locallo clarified that he was "trying to understand who is representing Cristina." Hoste argued that "it's the guardian ad litem under the law until that guardian ad litem has been removed." Judge Locallo asked: "So a guardian ad litem just suddenly goes south on the client and there's no avenue for somebody to say." Hoste responded that there was procedural due process and there were avenues of relief. He also
¶ 143 Leahy told the court that, with respect to Cristina asking Judge McGury why GAL Ammendola would not leave them alone, he believed the underlying issue was in regard "to an attempt to get Cristina to go to see [Dr. Leventhal]," that GAL Ammendola wanted her to see him, but Cristina did not want to see him. Leahy also stated the issue was whether Cristina was wrong in saying she did not want to be examined. Novoselsky referred to the report that had been prepared by GAL Malkin, who had spoken to Cristina, and stated that the report went beyond that issue. Judge Locallo stated as follows:
¶ 144 Judge Locallo, noting that the case included Cristina's claim for negligent infliction of emotional distress, stated:
Novoselsky stated: "They don't want her to testify." At this point during the hearing, Novoselsky and Leahy disagreed on whether that scenario was "at play in this particular case." Leahy expressed his understanding that Judge Zwick held a hearing on the underlying issue, which was "whether or not the child should be ordered to go ahead and have an examination and submit to a deposition because that's the issue underlying her count." Judge Locallo stated, "I don't find that the child's interests are being protected." He also stated: "[T]he necessary party should be before the court." Judge Locallo also opined that it was "sad" that Judge McGury was notified of the problem on July 18, 2008, and did not do anything. Therefore, Judge Locallo stated that he was going to allow Novoselsky to come in and argue after he resolved the motion for substitution of judge. Judge Locallo also stated: "If I rule on the motion and let's say I grant [Greyhound's motion for substitution of judge], * * * for cause. And then it goes back to [Judge] Maddux. And I believe wholeheartedly because I'm very concerned about what's happening here. I'm very concerned about a situation where I do not believe that her interests are being addressed." Based upon his concerns, Judge Locallo ruled that Novoselsky "should have an opportunity to address the court to address those issues."
¶ 145 Novoselsky was then allowed to address the court before it ruled on the parameters of the order. Novoselsky argued that there was a conflict as a matter of law, noting that GAL Ammendola and Stevens were defendants in the lawsuit. He also argued that, whereas GAL Ammendola's
¶ 147 On August 13, 2009, Novoselsky filed, on behalf of "Plaintiff, Cristina Zvunca, and the Estate of Cristina Zvunca, a minor, through its plenary guardian [Klein]," an emergency motion to "bar any further contact between attorneys Tom Leahy, Peter Hoste, Jeanine Stevens, Thomas Clancy and Marina Ammendola, either in her role as attorney or as purported Guardian ad Litem, and their agents and/or employees pursuant to a request made by the minor, her law parents and guardians, as well as her Plenary Guardian." On August 14, 2009, at a hearing before Judge Locallo, Novoselsky stated that the motion was based on a privileged communication from his clients, purportedly stating that they did not want contact with the named attorneys. Novoselsky stated that he was "the only lawyer representing Cristina" and also indicated that he and attorney Louis Cairo had contracts to represent the family.
¶ 149 At some point in time, a dispute arose between Klein and Novoselsky. The record contains a series of emails, dated August 17-19, 2009, from Novoselsky, and one from Cairo, responding to Klein, Cristina and the Zvuncas.
¶ 150 In an email dated August 17, 2009, to Klein, Cristina, and Maria Zvunca, Novoselsky stated:
¶ 151 Later that day, Cairo sent the following email to Klein, with a copy to Novoselsky:
¶ 152 On August 19, 2009, Novoselsky sent an email addressed to Klein, Cristina, Maria Zvunca, and Cairo, entitled "Bye, bye Zwick," stating:
¶ 154 On August 27, 2009, Judge Locallo granted Greyhound's motion for substitution of judge from Judge Zwick. Judge Locallo transferred the case to Judge Maddux for reassignment.
¶ 156 On September 2, 2009, Judge McGury held a hearing in probate case No. 07 P 7929 on Klein's "Pro Se Emergency Motion for Authority, Guidance, Protection of Ward Interest," which was "entered and continued generally." Judge McGury's order also directed GAL Ellen Douglass (the probate court appointed guardian ad litem who had replaced GAL Malkin after he withdrew) to "investigate the possible settlement of the Minor's claim(s) against Greyhound and others and to provide [Judge McGury] with her report" and to "take the steps necessary to speak with the Minor." Judge McGury ordered that "the GAL shall appear on 9/3/09 before Judge Locallo [at] 4:15 p.m. [at] the pretrial conference now scheduled to advise the court of this instant order."
¶ 158 On September 3, 2009, Novoselsky filed another action on behalf of Cristina's estate alleging negligent infliction of emotional distress against defendants Motor Coach and Greyhound (No. 09 L 10417). The subsequent history of this case will be discussed below.
¶ 160 On September 3, 2009, at the trial call before Judge Maddux, Stevens answered
¶ 161 At this point, counsel for Greyhound informed Judge Maddux that there were now at least four cases filed against Greyhound. These cases included: (1) the underlying action — No. 07 L 3391; (2) the action filed by Novoselsky that morning — No. 09 L 10417; (3) the action filed by Novoselsky in federal court — No. 08 C 4507, which was pending before Judge Leinenweber; and (4) the action pending in federal court in Colorado (referred to earlier as the Colorado action, and which was the first complaint filed in Cook County — No. 02 L 5584, which Greyhound removed to federal court, and in which we have noted, the federal court on April 15, 2005 had ruled that "the case pending in Cook County, Illinois, should take precedence"). Greyhound and Novoselsky also informed the court as to a number of pending lawsuits that Klein had filed in Cook County.
¶ 162 GAL Ammendola then informed Judge Maddux that, in 2008, as the law division appointed GAL, she brought matters to the attention of Judge McGury in the probate division and requested the appointment of a guardian ad litem in probate for Cristina regarding custody issues. She also pointed out that the underlying action included an action for Cristina's emotional distress, and that Cristina additionally was a beneficiary in the wrongful death action.
¶ 163 Hoste, noting that Novoselsky had indicated the Leahy & Hoste firm had refused a pretrial in front of Judge Locallo, stated that, until the day before (in front of Judge McGury), "we agreed on all fronts to go forward with the pretrial." He further noted that the plan had been to go forward with the pretrial on September 3, 2009 at 4:30 p.m. with Greyhound being present "and flying in their carrier and excess carrier." Greyhound's counsel confirmed that the carriers were arriving regarding a separate matter but further stated that GAL Douglass had "insisted yesterday to Judge McGury that the pretrial be cancelled" and "Greyhound really didn't have a voice in it." Greyhound stated it was ready for a pretrial in front of Judge Locallo.
¶ 164 Judge Maddux noted that he had a conflict because Novoselsky was his personal counsel. Following his acknowledgment
¶ 165 Stevens then stated: "May I ask rather than this being sent to Judge Locallo it be sent to Judge Elrod? Judge Elrod has —." Before allowing Stevens to explain, Judge Maddux denied plaintiff's counsel's request to assign the matter to Judge Elrod, stating: "You're going to Locallo."
¶ 166 Greyhound then noted that they still had seven pending motions including motions to dismiss, motions for summary judgment, a motion to depose Cristina, and a motion for an independent medical examination. Judge Maddux transferred those motions to Judge Locallo.
¶ 168 On September 8, 2009, five days after the case was transferred from Judge Zwick to Judge Locallo, he entered an order after he had "reviewed transcripts, pleadings and the report of Attorney Leonard Malkin." Judge Locallo concluded that a conflict existed between Cristina and Stevens, who represented Cushing. Judge Locallo also concluded that a conflict existed between Cristina and GAL Ammendola. Based on these conflicts, he entered an order removing attorneys Jeanine Stevens, Thomas Leahy, Peter Hoste, Thomas Clancy, the Clancy law firm, and the Leahy & Hoste law firm from any representation of Cristina, in any capacity, in the law division proceedings under court numbers 07 L 3391 and 09 L 10417. Judge Locallo also removed GAL Ammendola in case number 07 L 3391 and appointed attorney David Gubbins as guardian ad litem for Cristina under case numbers 07 L 3391 and 09 L 10417. The court order also removed Cushing as administrator. The court order was issued sua sponte, without prior motion, notice, or opportunity to be heard by any of the affected persons.
¶ 170 On September 11, 2009, after his removal, Cushing filed a 16-page motion entitled "Emergency Motion Before the Chief Judge For Resolution of Probate/Law Division Conflict and Motion for Substitution of Judge Locallo For Cause, To Stay Judge Locallo's September 8, 2009 Order, And For Special Assignment To Protect Minor." The motion was filed by the Clancy firm.
¶ 172 Cushing also attempted to file, on September 11, 2009, a motion for substitution of judge for cause through his attorneys, the Clancy firm, directed at Judge Locallo. At a court hearing on September 14, 2009, Judge Locallo precluded the motion from being filed because Stevens was the attorney who filed it. Judge Locallo stated that "[i]f Mr. Cushing wishes to file a motion for SOJ for cause, he can file it himself." Novoselsky, however, asserted that Cushing was a "supervised" administrator and not an "independent" administrator and needed to get leave of court
¶ 173 During the September 14, 2009 hearing, Judge Locallo discussed "the reason" for his prior order of September 8, 2009. He stated: "This is a unique set of circumstances, something the Court has not ever had in front of it because of the nature of what is going on here."
¶ 174 As to the conflicts, Judge Locallo noted that the minor had expressed to Judge McGury that the minor had a conflict with GAL Ammendola and that the minor had told Judge McGury that she, the minor, "does not have any emotional problems." Judge Locallo said that if "there is a claim for emotional distress, and if the child is denying that there is emotional distress, that is a substantial conflict, and the Court believes Jeanine Stevens is a necessary witness to be deposed for purposes of that claim of emotional distress. That's one conflict. The second conflict is a lawsuit has been filed in federal court against Jeanine Stevens." Judge Locallo additionally opined that, regardless of the merits of the case, an attorney could not represent a client when, at the same time, the client was suing the attorney. The court stated that a "third conflict" it saw was the fact that Stevens answered ready for trial before Judge Maddux on September 3, 2009, even though Cristina's deposition had not been taken and there was no evidence that the child was under care for the emotional distress, "if it exists, not to mention the Defendants' right to contest the emotional distress, which appears to be in conflict because the child tells Judge McGury she doesn't have any emotional problems, yet Plaintiffs have persisted — or the guardian ad litem, Marina Ammendola, has persisted in the claim regarding emotional distress." Judge Locallo felt that GAL Ammendola "did not function properly as a guardian ad litem." He also believed that GAL Ammendola had "an allegiance to attorney Stevens and whatever attorney Stevens chose to do but GAL Ammendola was under an obligation to report to Judge Zwick and to urge that Miss Stevens be removed." He stated that "[o]ne of the big problems is when the matter was answered ready for trial, the named Plaintiff was not the Estate of Cristina Zvunca, the named Plaintiff was Marina Ammendola, who was in a dual capacity, according to Judge Zwick, as guardian ad litem but also the attorney, and that poses a conflict." Noting he had "no problems" with Leahy or Hoste, Judge Locallo explained that the "reason" each was removed was "because the Court believed it was necessary to remove Jeanine Stevens and also necessary to remove Marina Ammendola as guardian ad litem."
¶ 175 Greyhound then apprised Judge Locallo that it had a number of pending motions and discussed the motions. When Stevens told the court there was "more to this," Novoselsky stated that Stevens had been removed from the case. Judge Locallo then told Stevens she was not going to address the court. Stevens told the court she needed to "know the basis" upon which the court was making its rulings and what materials the court had reviewed and had not reviewed and how it had come to its conclusions. Novoselsky interjected: "Judge, she has no right to cross-examine the Court on a ruling." Stevens then informed the court that "Mr. Novoselsky is the reason that Cristina was never evaluated" and that Judge Locallo had "not had an opportunity to see that." The court then told Stevens to "[t]ake a seat" and told her "I'm not going to respond to you." Novoselsky then discussed the background
¶ 176 At this point, GAL Douglass, as guardian ad litem in the probate case, informed the court that she had received an email from Cristina on September 9, 2009, advising that she wanted to discharge Novoselsky and Cairo, and a motion had been filed, a briefing schedule had been set, and the next court date was October 20, 2009. Judge Locallo responded that "[t]he official role of the guardian ad litem is not to advocate for what the ward wants but instead to make its recommendation to the court as to what is in the ward's best interest." GAL Douglass stated that she thought it was in Cristina's best interest that her desires to have these lawyers discharged be spread of record. She agreed that GAL Gubbins could advise the court whether he thought it was in Cristina's best interest. GAL Gubbins stated that 15-year-old Cristina, as a minor, "cannot contract, she can't fire an attorney or hire an attorney. Only the Court can approve the hiring or firing of attorneys." GAL Gubbins also stated his belief that he should meet with Cristina and report to the court as to whether it was "in her best interest to be able to appear for a deposition." GAL Douglass expressed her concerns that "Cristina does not have the capacity to hire an attorney; and in the probate action, an attorney has been speaking on her behalf presumably who has not been appointed by the court." Novoselsky told GAL Douglass she was wrong. GAL Douglass agreed that GAL Gubbins should be speaking to Cristina and that she could advise him of the efforts they were making to have that happen. However, GAL Douglass further stated that there should be a medical evaluation as to whether or not it would be harmful for Cristina to participate in a deposition, and she did not think it should be just the opinion of GAL Gubbins.
¶ 177 Judge Locallo instructed Stevens to send the file to Cairo and Novoselsky. Stevens stated she would not do so and would have to be held in contempt. She informed the court that a motion was pending before the chief judge based on the conflicts that had arisen in the case.
¶ 179 As discussed earlier, Greyhound had sought disqualification of Stevens, contending she had a conflict of interest by impermissibly mixing the role of witness and advocate. Greyhound contended that Stevens would be a witness to Cristina's emotional distress and sought to depose Stevens. Judge Zwick, in denying Greyhound's motion, explained that attorney disqualification is a drastic measure, and noted that "`[t]rial courts are required to scrutinize motions to disqualify, lest they be used tactically as means of harassment."
¶ 181 Cushing hired attorney Warren Lupel to represent him as administrator. On September 16, 2009, Lupel attempted to present a motion for substitution of judge for cause directed at Judge Locallo. Cushing asserted that Judge Locallo's sua sponte order removing him, without a hearing, led Cushing to "believe that the Court harbor[ed] prejudice and/or bias against him and others, including but not limited to the attorneys representing the Plaintiffs and the Guardian ad Litem in this matter." Judge Locallo told Lupel that he would not be allowed to participate because he was representing Stevens in federal court (in the lawsuit filed by Novoselsky). This was Cushing's second motion for substitution of judge relating to Judge Locallo which he declined to recognize. However, Judge Locallo also stated that the original order that he had entered with respect to Cushing had been vacated because the court had erroneously believed that Cushing had been hired by Stevens when, in fact, Cushing had been appointed the administrator by Judge Kennedy in the probate division. (At the time of this September 16, 2009 hearing, no order had yet been entered vacating Cushing's prior removal. As we note below, on September 22, 2009, Judge Locallo would, on his own motion, vacate his September 8, 2009 order as it applied to Cushing's removal, nunc pro tunc September 14, 2009.)
¶ 182 Judge Locallo stated that he had changed the order removing Cushing and had informed him at a hearing held two days earlier, but that Cushing may not have heard him. Cushing therefore withdrew his motion for substitution of judge for cause.
¶ 183 Regarding Judge Locallo's removal of the attorneys for Claudia's estate, the following discussion occurred:
Noting that Cushing had been sued by Klein and was a defendant, Novoselsky
¶ 184 At this point, GAL Douglass expressed her concerns to the court regarding Novoselsky's settlement discussions with Greyhound "when there is a pending motion with respect to Cristina's desire not to have Novoselsky represent her." GAL Douglass further noted that Novoselsky was aware that the motion, filed by Cristina, Klein and the Zvuncas, was pending before Judge McGury. Judge Locallo asked Klein to approach the bench. Klein expressed his concerns that Claudia's estate was not being represented. Klein clarified that it was his understanding that Novoselsky was not representing Claudia's estate and Klein apparently wanted a particular attorney to represent the estate.
¶ 185 Cushing again addressed the court and the following colloquy occurred:
After Cushing and Novoselsky briefly discussed Novoselsky's motion to remove Cushing that was pending in the probate division, Judge Locallo stated: "The bottom line is we are going to move forward and we will see what Greyhound has to say." Cushing, however, again expressed his concerns and the following discussion ensued:
GAL Douglass then stated that "speaking of walking very carefully," she had concerns regarding Novoselsky's representation of Cristina based on an email where Cristina stated she did not want him to represent her. Argument then ensued between Novoselsky and GAL Douglass.
¶ 186 Judge Locallo further explained that GAL Gubbins was the guardian ad litem for the law division case. He also stated: "As to one of the dictates that Judge Maddux suggested was to determine who represents who [sic] I've already eliminated a few." As to Cushing, he stated that they would wait to see what happened in the probate division the next day regarding Cushing's removal. Judge Locallo also discussed his removal of Cushing's counsel:
Novoselsky then interjected: "I assume that includes Mr. Lupel." Judge Locallo then stated that, as to Lupel, "the Court finds that that conflict also exists."
¶ 188 On September 17, 2009, another hearing before Judge Locallo was held. Settlement of the case was discussed. Judge Locallo clarified that Novoselsky and Cairo would represent the estate of Cristina Zvunca. With respect to the estate of Claudia Zvunca, the court stated that it had "Mr. Cushing who's the administrator of that estate for the purposes of monitoring by Judge Kennedy." Cushing, however, was not present at this hearing. Stevens, acknowledging that Judge Locallo had told her she was not allowed to speak, advised the court that Cushing had retained additional counsel.
¶ 189 Also, during the hearing, GAL Douglass provided the court with email correspondence from Cristina to her, that had been referenced in the hearing a day earlier. Novoselsky, noting that he had been appointed by Judge McGury to represent Cristina, stated that he would be moving to remove GAL Douglass before Judge McGury. He argued that GAL Douglass was impeding his ability to represent Cristina. As the settlement procedure was discussed, GAL Douglass reiterated her concerns about Novoselsky representing Cristina while a motion remained unresolved — Cristina's motion to discharge Novoselsky that had been filed by Klein. Judge Locallo stated:
GAL Douglass expressed her concerns that Cristina was being manipulated and she hoped the judge would listen to her opinion as to the "current" manipulation. Judge Locallo stated he understood and then asked Novoselsky to advise him as to a hearing at 2 p.m. Novoselsky explained he would be going to probate court to try to remove Cushing "which has nothing to do with this court." Novoselsky explained: "We had a prior motion filed by Mr. Klein, who, by the way, wants us to continue with it, filed on his behalf as plenary guardian to remove Mr. Cushing in the probate proceeding."
¶ 190 The court then addressed the issue of Stevens turning over her file. Stevens stated that she believed a conflict remained. She stated she had discussed the issue with GAL Gubbins who agreed with her that there was no contract with any attorney on behalf of Cristina. Stevens further told Judge Locallo that GAL Douglass had indicated that she believed that Cristina had been manipulated by Novoselsky and Cairo, and GAL Douglass had grave concerns about whether Cristina was being adequately represented, and had indicated that she did not want Novoselsky acting for Cristina because he was not acting in her best interest. Stevens also noted that there was a comment that it was a disgrace that the case had not yet settled. She argued that Novoselsky "improperly said it was never seriously pretried." She noted that "Judge Elrod spent a good ten to fifteen hours throughout 2008 and 2009 trying to settle the case." She further argued that the case "would have settled but for Mr. Novoselsky's interference and Judge Elrod told him to leave [because he had] no standing." Stating that she needed to make her record, Stevens noted that, on September 3, 2009, she had told the court she was ready for trial. She further stated:
Judge Locallo directed Stevens to turn over her file for the copying service by September 24, 2009, and to direct the copies to GAL Gubbins and GAL Douglass. Judge Locallo further directed her to send copies to Cairo's office. The court stated that if Stevens did not comply, he would deal with a rule to show cause.
¶ 192 On September 22, 2009, Judge Locallo entered several orders. On his own motion, Judge Locallo vacated his September 8, 2009 order as it applied to Cushing's removal, nunc pro tunc September 14, 2009. Despite having reinstated Cushing, and despite his sua sponte appointment of a replacement guardian ad litem for Cristina, Judge Locallo sua sponte appointed attorneys David Novoselsky and Louis Cairo as "the sole attorneys for the Estate of Cristina Zvunca, a minor, and for Cristina
¶ 194 Meanwhile, in the case that Novoselsky had previously filed on June 1, 2009, No. 09 L 6397, (the action containing allegations similar to those contained in the federal suit against Cushing, Stevens and Ammendola), a conflict arose between Novoselsky and one of his clients, Klein. Novoselsky would subsequently amend the complaint and change the named plaintiffs several times. Initially, the plaintiffs were listed as "the estate of Cristina Zvunca, a minor, through its plenary guardian, Tiberiu Klein, and Cristina Zvunca, an individual entitled to bring suit to protect her own individual rights."
¶ 195 On October 6, 2009, Klein, pro se, filed an emergency motion, on behalf of "the estate of Cristina Zvunca, a minor, through its plenary guardian, Tiberiu Klein, and Cristina Zvunca, an individual entitled to bring suit to protect her own individual rights." Klein raised serious allegations against Novoselsky. Among these was Klein's claim that Novoselsky had filed the suit on behalf of Klein, as plenary guardian of Cristina Zvunca, but that he had not authorized the action. This case has also been the subject of several appeals filed by Klein, either pro se or through his counsel, John Xydakis, which remain pending before this court.
¶ 197 On November 3, 2009, Novoselsky amended the complaint and the plaintiffs were changed to "the estate of Cristina Zvunca, a minor, through its guardian ad litem, David Joseph Gubbins, and Cristina Zvunca, as an individual, also through her guardian ad litem, David Joseph Gubbins, entitled to bring suit to protect her own individual rights." This was done despite Klein's claims, and apparently was based upon Judge Locallo's September 22, 2009 "appointments" discussed earlier. As Cushing has noted, this new version of the complaint added new charges against Stevens including battery, false imprisonment and intentional infliction of emotional harm.
¶ 198 On January 21, 2010, Novoselsky filed a third amended complaint. This time the named plaintiff was "MB Financial Bank, N.A., as guardian of the Estate of Cristina Zvunca, a minor, as to all law division matters."
¶ 200 On March 12, 2010, Novoselsky filed a motion to voluntarily dismiss the complaint in case No. 09 L 6397 with leave to refile. According to Cushing, the case was never refiled. According to a circuit court order dated July 13, 2010, entered in the law division by Judge Maddux, case No. 09 L 6397 was renumbered as case No. 10 L 8051, Novoselsky (whose prior representation of Judge Maddux had been acknowledged a year earlier) was granted leave to withdraw his appearance for plaintiff,
¶ 202 On August 11, 2010, Cushing and Stevens filed a motion for sanctions in case No. 09 L 6397. On January 18, 2011, the court denied Novoselsky's motion to strike the sanctions motion. On February 3, 2011, Klein filed a motion to intervene in the sanctions motion on behalf of Cristina as her "appointed plenary guardian." The next day, on February 4, 2011, before the motion to intervene had been ruled upon, Novoselsky filed a notice of removal to federal court.
¶ 204 We take judicial notice of the subsequent history of this case, as outlined in MB Financial, N.A. v. Stevens, No. 11 C 798, 2011 WL 5514059 (N.D.Ill. July 5, 2011) (unpublished memorandum opinion and order), referred to earlier, and subsequently affirmed, MB Financial, N.A. v. Stevens, 678 F.3d 497 (7th Cir.2012). On July 5, 2011, as noted earlier, the federal district court awarded sanctions against Novoselsky in favor of Cristina Zvunca and Stevens. MB Financial, N.A. v. Stevens, No. 11 C 798, slip op. at 4 ("Novoselsky is personally liable to [Cristina] Zvunca for $10,155.00, and personally liable to Stevens for $2,432.00."). The award was based on Novoselsky's meritless removal of the state court action, case No. 09 L 6397, to federal court. The district court concluded that Novoselsky's actions constituted "vexatious and unjustified litigation" and that he "created and unreasonably multiplied the proceedings in federal court." MB Financial, N.A., No. 11 C 798, slip op. at 3. The court referred to Novoselsky's arguments as "convoluted," "meritless," and "baseless." Id.
¶ 206 Novoselsky appealed the district court's ruling to the Seventh Circuit Court of Appeals. On April 24, 2012, the Seventh Circuit affirmed the decision pursuant to the Judicial Improvements Act of 1990 (28 U.S.C. § 1447(c) (2006)), which authorizes an award of attorney fees when a removal to federal court is unreasonable. The Seventh Circuit concluded that Novoselsky's removal "was worse than unreasonable; it was preposterous." MB Financial, N.A., 678 F.3d at 498. The court also awarded additional fees to Stevens and Cushing for their costs in defending the district court's decision.
¶ 208 Meanwhile, on October 22, 2009, shortly after Klein had filed his emergency motion in case No. 09 L 6397 and raised the allegations against Novoselsky, GAL Gubbins filed an "Emergency Motion for Court Relief to Protect Cristina Zvunca's Interests from Detrimental Conduct of [Tiberiu Klein,] the Plenary Guardian." GAL Gubbins asserted that, pursuant to Ott v. Little Company of Mary Hospital, 273 Ill.App.3d 563, 210 Ill.Dec. 75, 652 N.E.2d 1051 (1995), once a GAL is appointed, the GAL is charged with defending the interests of the minor, and the GAL is vested with "exclusive authority" to proceed on behalf of the minor in the pending lawsuit. GAL Gubbins argued that despite the probate court's appointment of Klein as the plenary guardian of the minor, Klein no longer had any authority "to proceed or act on behalf of the minor in this lawsuit." GAL Gubbins additionally stated that, despite Klein's lack of authority as a result of
¶ 210 On October 27, 2009, the trial court held a hearing on GAL Gubbins emergency motion. Present at the hearing were GAL Gubbins, Novoselsky (on behalf of "plaintiff"), Cairo (on behalf of "plaintiff"), F. John Cushing (as administrator de bonis non of the estate of Claudia Zvunca, deceased), attorney Kathryn Mackey (on behalf of defendant Greyhound), attorney Ellen Douglass (as GAL in probate matter No. 07 P 7929), and Klein. Novoselsky informed the court that Klein had fired his attorney, Olson, and Judge McGury, in the probate division, had told Klein that he could not file anything on behalf of the Estate unless he was represented by counsel and had struck his pleadings. GAL Douglass disagreed with Novoselsky regarding the striking of the pleadings. Noting that she had been present at the hearing before Judge McGury, and Novoselsky had not, she noted that only a portion had been struck. Novoselsky then stated that GAL Douglass was wasting time showing up at all the law division proceedings stating:
Novoselsky also discussed Klein's interference with the Illinois action. GAL Douglass told the court that Klein had filed an objection to the fee petition of the former probate division guardian ad litem, Leonard Malkin. She informed the court that Judge McGury had stricken Klein's petition to stay a pretrial in the law division, noting she had no authority to do so. GAL Douglass clarified her position that she believed a pretrial should continue.
¶ 211 GAL Gubbins expressed his position: "This case is about Cristina Zvunca." He stated that, pursuant to the case of Ott v. Little Company of Mary Hospital, "the representative of an estate of a minor can appear for and represent the minor in all legal proceedings unless another person is appointed for that person." Therefore, GAL Gubbins stated that once the court appointed him as the GAL, Klein, although Cristina's plenary guardian, had no authority to proceed on her behalf. GAL Gubbins further stated that Klein was in conflict with Cristina because he had a case and "depending on what he gets is going to affect Cristina Zvunca." There was no discussion of how this conflict between Klein and Cristina could be reconciled with Novoselsky's earlier claim of a conflict-free representation of both. Noting that he had been in the case for six weeks, GAL Gubbins further opined that it was "obvious" that Klein was trying to serve his own
¶ 212 Klein, however, stated that GAL Gubbins's representations were untrue. When Novoselsky attempted to interrupt, Klein noted that when Novoselsky made his appearance in the case, he did so on Klein's behalf. Klein stated that he had hired Novoselsky and Klein was "very disturbed that Mr. Novoselsky [was then] taking an adverse position to [Klein]."
¶ 213 Novoselsky stated that "somebody need[ed] to represent this child." Noting that both Judge Locallo and Judge McGury had appointed him, he stated that "the only lawyer who represents the Estate of Cristina Zvunca or Cristina Zvunca before this court system is myself and Mr. Cairo." Therefore, despite Novoselsky's prior successful effort to have Klein appointed plenary guardian of Cristina (over GAL Ammendola's objections), and despite his February 21, 2008 letter stating that he had been "retained by Klein to represent his interests" and his resistance to the claimed conflict affecting his dual representation of both Klein and Cristina, Novoselsky stated that he believed they needed "a fiduciary who does not have a conflict to act as the guardian of the estate of this child in the law division proceedings."
¶ 214 Klein expressed his concern that Novoselsky had a conflict of interest with both Cristina's estate and Claudia's estate. He contended that Novoselsky had brought in Schroeder, who formerly had been Greyhound's counsel on the case for five years, and that Novoselsky had Schroeder file a motion on behalf of the plaintiffs in the probate court matter. Novoselsky responded that the filing was done in error and had been withdrawn. The trial court ordered that Klein was barred from filing anything with respect to the underlying Illinois action.
¶ 215 Also discussed at the October 27, 2009 hearing was an upcoming pretrial conference and the roles of the various parties and attorneys, including Cushing. GAL Gubbins expressed his opinion that he, and not Klein, had the "exclusive authority to proceed on behalf of the minor in the pending lawsuit." Novoselsky agreed that he did not represent Cushing or the estate of Claudia Zvunca. He stated that he represented Cristina and her estate, but also "Cristina Zvunca's interests as the beneficiary in her late mother's estate." Novoselsky, as Cristina's attorney, stated that GAL Gubbins should speak for Cristina.
¶ 216 Novoselsky also asserted that "Mr. Cushing, no more than Mr. Klein, can be here pro se, nor participate pro se. He is not the attorney for Claudia's estate; he is simply the representative. That estate has lawyers." Novoselsky also stated that if Cushing was "unable to procure a lawyer without a conflict, he doesn't have to participate in the pretrial because he's then in the same position as Mr. Klein. And I don't want Mr. Cushing in the position of independently trying to negotiate a settlement which would conflict." Novoselsky asserted that Judge Locallo had already found that Cushing had a conflict with Cristina. Novoselsky then stated that Cushing would have to get leave from Judge Kennedy to hire an attorney who did not have a conflict.
¶ 217 Cushing disagreed with Novoselsky's representation that Cushing had a conflict with Cristina. The court set a status date. Novoselsky informed the
¶ 218 Cairo requested the court consider telling the parties who could participate at the pretrial. Novoselsky then discussed his viewpoint on Cushing's role:
¶ 219 Novoselsky also asserted that, should there be a settlement, Cushing's role, as supervised administrator of the estate of the mother, would be limited to reporting to the probate division as to whether he recommended the settlement. He further stated that "[u]ntil that time, there's nothing for him to do."
¶ 220 Judge Locallo stated that he was inclined to have GAL Gubbins at the pretrial and would make a determination at the next status hearing whether he thought it was "in the best interests to have anybody else there," including GAL Douglass. Novoselsky, who had earlier expressed his opinion that GAL Douglass should not be involved in the law division proceedings, informed the court that he hoped to get GAL Douglass removed in probate before the next status hearing in the law division.
¶ 221 The court asked Cushing if he anticipated that an attorney would appear. The following discussion occurred:
¶ 223 On November 6, 2009, Judge Locallo entered an order setting a pretrial conference before him for November 17, 2009. The order directed GAL Gubbins to "conduct settlement negotiations on behalf of Cristina Zvunca, a minor with defendants, Greyhound and Motor Coach." The court further ordered that "Court Appointed Attorney for the minor, Louis Cairo will be present to assist the Guardian Ad Litem during said Pretrial Conference." The court order further stated: "Any and all other party or persons will be precluded from attending or participating on behalf of Cristina Zvunca, a minor, at said Pretrial Conference." The order does not address the representation of Claudia's estate and Cushing now characterizes this order as giving GAL Gubbins "a broad mandate over the wrongful death case."
¶ 225 On November 17, 2009, Judge Locallo entered a written order, "on the Court's motion" appointing Northern Trust Company as guardian of Cristina's estate. It is unclear from the record whether Northern Trust Company was informed of, or accepted, its appointment and, if so, by whom. As Cushing notes, the order was entered without notice to him.
¶ 227 On December 1, 2009, the court heard Klein's motion for reconsideration of October 27, 2009 order. Novoselsky was present. Klein would later file a motion to remove Novoselsky for improper conduct during the December 1, 2009 hearing.
¶ 229 Cushing retained attorney Scott Golinkin. On December 8, 2009, Golinkin entered an appearance in the underlying Illinois action.
¶ 231 On December 11, 2009, despite the order appointing Northern Trust Company, Judge Locallo entered another order in which MB Financial Bank, N.A., was substituted for Northern Trust Company as guardian of the estate of Cristina Zvunca, a minor. The order states as follows:
¶ 232 The record is unclear as to what activities transpired that prompted the trial court to enter its own order. In any event, the only role of MB Financial Bank, N.A. in the wrongful death action was to protect recovery of funds which might accrue to Cristina as a result of a settlement or verdict. Also, although the court directed the "court-appointed" attorneys (Cairo and Novoselsky) only "to cooperate with and assist" MB Financial Bank, N.A., we note that Novoselsky later asserted that he represented MB Financial Bank, N.A. It also appears from the record that Novoselsky later asserted that Judge Locallo's order that "directed" MB Financial Bank, N.A., to act as Cristina's guardian with regard to any cause of action that had accrued, or may accrue, to Cristina in the law division, authorized MB Financial Bank, N.A., to both prosecute the instant action on her Cristina's behalf and file additional lawsuits on her behalf. It is unclear from the record, however, whether Novoselsky entered an appearance on behalf of MB Financial Bank, N.A.
¶ 234 On December 17, 2009, Tiberiu Klein, as Cristina's plenary guardian, filed a pro se motion to reconsider or vacate the November 17, 2009 order which had, among other things, replaced Klein with another guardian, Northern Trust. Klein contended that he had intervened in the Illinois action by Novoselsky but that Novoselsky was discharged and was "refusing to withdraw his appearance on behalf of the plenary guardian." Klein argued that he and the Zvunca family had discharged Novoselsky and Cairo, the attorneys representing Cristina's estate in the Illinois action, a discharge he asserted was allowed on September 2, 2009, by Judge McGury in the probate division.
¶ 236 On December 17, 2009, Judge Locallo entered an order transferring the underlying action to Judge Maddux for reassignment. The case was assigned instanter to Judge William H. Haddad on December 17, 2009. On December 24, 2009, Judge Locallo retired.
¶ 238 On December 30, 2009, Novoselsky filed an emergency motion on behalf of "the Estate of Cristina Zvunca, a Minor, through its Court-Appointed Guardian, MB Financial Bank, N.A. and its counsel, David A. Novoselsky." He requested that the court transfer the various pending lawsuits and all pending matters, in both the probate division and law division (No. 03 P 8718, No. 07 P 7929, and No. 09 L 6397), to Judge Haddad, for consolidation with No. 07 L 3391.
¶ 239 Novoselsky noted that the "underlying matter [before the law division was] an action for wrongful death." He did not refer to the counts for Cristina's own emotional distress claims. Novoselsky further stated that, although both a decedent's estate and a minor's estate had been opened, "no recovery or potential recovery [would] pass through either estate." He stated that recovery was "paid directly to the surviving beneficiaries." He further argued that, although the minor's estate was opened when she was "residing in Cook County, she had since left the United States and [was] currently residing with her adoptive parents in Romania." He made no mention of his former client, Klein, whom Novoselsky had assisted in becoming plenary guardian. As noted earlier, on July 18, 2008, the estate for Cristina Zvunca was opened when Klein was appointed plenary guardian of the "estate and person" of Cristina, with Novoselsky's assistance. (We note that, although Judge Locallo's December 11, 2009 order appointing MB Financial Bank, N.A., as "guardian of the estate of Cristina" was made "based upon representations made before [the] court" by Klein who stated he had "no intention of interfering with any portion of the causes of action available to or rights of recovery on behalf of Cristina," Klein was not removed as plenary guardian.)
¶ 240 Novoselsky further contended that there was "no jurisdiction to maintain the minor's estate as a separate entity or separate and distinct from the guardian of the Estate appointed by the Law Division which has since been appointed for the purpose of prosecuting this cause of action." Novoselsky further stated that "[i]n light of these disputes and given the multiplicity of actions and competing claims as to the identity of the party/attorneys representing the interests of the minor beneficiary or the decedent's estate, this Court assigned this matter to the Honorable Daniel M. Locallo on September 3, 2009." Novoselsky contended that "[u]pon learning that Judge Locallo was to retire, various individuals [had] attempted to solicit orders from various other judges including but not limited to judges of the Probate Division to go behind or to modify/vacate the rulings of Judge Locallo pursuant to the direction of this Court." Citing People ex. rel. Carey v. Covelli, 61 Ill.2d 394, 336 N.E.2d 759 (1975), and People ex rel. Kelly, Ketting, Furth, Inc. v. Epstein, 61 Ill.2d 229, 335 N.E.2d 430
¶ 242 On January 14, 2010, Judge Haddad held a hearing and noted there had been no special administrator appointed in the law division "to carry the case through." The court stated that although it was "just a formality" it was "supposed to be done." Novoselsky indicated that he was drafting the motion for the appointment and recommended that MB Financial Bank, N.A., be appointed as the special administrator. The trial court also stated that "[p]robate administrators and guardians are welcome to watch this trial, but — and to participate as they see fit. I'm certainly not going to bar them from their work." The court noted that Cairo and Novoselsky had been appointed to represent Cristina in her personal action for emotional distress and her interests as the beneficiary of Claudia's estate. The court further explained its role as follows: "the trial judge will either approve settlement or approve the judgment and the verdict, * * * will then apportion the recovery of each party, approve fees and costs, and then send the matter, and only then, to Probate, who will be authorized to administer the actual distribution of proceeds." Cushing and his attorney, Scott Golinkin, were present and did not voice any disagreement or objection. The court entered a written order that stated in relevant part as follows: "This court accedes to rulings of [the prior law division trial judge] to enable an orderly resolution or trial of this matter forthwith, and to respond to the variable interests of the participants hereunder under Will v. Northwestern University [, 378 Ill.App.3d 280, 317 Ill.Dec. 313, 881 N.E.2d 481 (2007),] and Ott v. Little Company of Mary Hospital, [273 Ill.App.3d 563, 210 Ill.Dec. 75, 652 N.E.2d 1051 (1995)]." The order further stated:
¶ 244 On January 21, 2010, the court held a status conference and set a case management schedule. The court entered a detailed written order which included the next status date of January 28, 2010. GAL Gubbins sent a copy of the order to Golinkin.
¶ 245 Also, on January 21, 2010, Novoselsky filed a third amended complaint in case No. 09 L 6397, described earlier. The named plaintiff was changed to "MB Financial Bank, N.A., as Guardian of the Estate of Cristina Zvunca, a Minor as to all Law Division Matters."
¶ 247 On January 28, 2010, the court held a status conference. Neither Cushing nor Golinkin attended. The court did not enter any order regarding the removal of Cushing as the administrator of Claudia's estate nor enter any findings regarding a conflict regarding Cushing. Nonetheless, pursuant to a motion brought by MB Financial Bank, N.A., the trial court appointed MB Financial Bank, N.A., as special administrator of the estate of Claudia Zvunca, deceased. The record does not contain a copy of the motion. As noted earlier, however, Novoselsky stated during the January 14, 2010, hearing that he was drafting the motion for the appointment, and the January 28, 2010 court order appointing MB Financial Bank, N.A., as special administrator was prepared by Novoselsky.
¶ 248 On February 17, 2010, Cushing filed a motion to reconsider the January 28, 2010 order appointing MB Financial Bank, N.A., as the special administrator. Cushing argued, among other things, that the trial court had no authority under the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2008)) to appoint a special administrator because there was a probate administration in place, for which Cushing was the supervised administrator de bonis non.
¶ 249 On February 23, 2010, the court held a hearing on Cushing's motions. The court stated that the appointment of MB Financial Bank, N.A., was "an administrative move" to "clean up the record." Cushing raised several arguments regarding the appointment. He further contended that the appointment "effectively and completely eviscerate[d] any role Mr. Cushing [had] in this case."
¶ 250 The court disagreed with this latter contention, stating that Cushing was the "probate" administrator and would "get this case when we are done here." The court also opined that it did not want an administrator who had "been accused of * * * having a conflict" and that "the idea here is to have a clean case so we can proceed to trial." Regarding the purported conflict on the part of Cushing, the court made no determination and instead stated "I have nothing to go on here one way [or] the other." The court also asked Cushing, if the appointment of the special administrator did not satisfy the statutory requisites, what difference that made "in the final analysis of this case [and] in terms of the rights of the parties here." Cushing responded that it was "Mr. Cushing who was appointed by the probate court [and] the person who should be pursuing that." Cushing also argued that the court could not appoint MB Financial Bank, N.A., as special administrator merely because the court believed it was convenient. The court recognized that Cushing was an administrator, but opined that "he is in probate." The court further opined as follows: "I know he will do a fine job once this case is over with here, and we will be happy to turn it over to him at that point in the probate division and the good judges there, but for my purposes here, this is a formality, and I question this motion." On February 24, 2010, the trial court entered a written order denying Cushing's motions. The order did not contain a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010).
¶ 252 On February 25, 2010, the court held a hearing. At the outset, GAL Gubbins
¶ 253 Attorney David A. Eide, who was representing the Clancy & Stevens firm, explained to the court that his clients wished to assert their lien right. Judge Haddad stated that he had acceded to Judge Locallo's appointment of the attorneys and had set the case on "a very expeditious case management schedule," which if not met, would have consequences. He stated that "the question is not whether they have standing or whoever else has standing. Right now, they're the plaintiff and I'm ordering that the file be entered." He then discussed the issue of turning over the file and the attorney lien.
¶ 254 Stevens also expressed her concerns to the court regarding turning over the file in a situation where her client had not fired her but, instead, a judge had "fired her." Judge Haddad stated that the case was not going to be delayed and he was "ready, willing, and able to allow [the GAL and attorneys appointed by Judge Locallo] to proceed with the case." He further stated:
Stevens refused to turn over her file and the judge issued a rule to show cause and set a hearing date.
¶ 255 Attorney Richard Lehman, representing Cushing, then presented a motion for substitution of judge as of right in the legal malpractice case that had been filed against Cushing. Novoselsky objected, arguing that Judge Haddad had previously made a substantive ruling. Judge Haddad therefore allowed Novoselsky to file a written response.
¶ 257 On March 2, 2010, Judge Haddad sent all of the cases that had been transferred to him from Judge Budzinski back to her for reassignment. He stated he would deal only with the underlying case. Judge Haddad then discussed an open letter to him dated February 16, 2010 that bore Cristina's name but was unsigned. The letter concerned her displeasure regarding current representation by Novoselsky, Cairo, and GAL Gubbins, and expressed favor for Cushing, Stevens and GAL Douglass. Judge Haddad also stated that he received a letter from Novoselsky under seal that was also sent to both GALs, regarding the February 16, 2010 letter and that Novoselsky alleged coaching had been done and alleged improprieties as to professional conduct. Judge
¶ 258 Judge Haddad then addressed the petition for rule to show cause as to why Stevens should not be held in contempt for refusing to turn over her file. Judge Haddad concluded that it was inadequate because, among other things, it was not verified and did not include the court proceedings of February 25, 2010. He therefore struck the petition, with leave to amend.
¶ 259 GAL Douglass informed the court that she had been in touch with Cristina as requested, that Cristina would come for a deposition on April 12, 2010, and that GAL Douglass had so informed GAL Gubbins.
¶ 261 As noted earlier, on March 8, 2008, Greyhound had moved for a medical examination by its own expert pursuant to Illinois Supreme Court Rule 215 (eff. July 1, 2002). On March 3, 2010, Greyhound renewed its motion.
¶ 263 Also on March 3, 2010, Greyhound filed a supplemental brief in support of its motion to dismiss and, alternatively, motion to bar Cristina's testimony. Greyhound argued that it had been prejudiced by Cristina's refusal to cooperate with multiple court orders, including Cristina's "failure to attend numerous court-ordered psychological examinations just to determine her competency to testify."
¶ 265 On March 19, 2010, Cushing filed the interlocutory appeal that was the subject of our opinion in Cushing I, 2012 IL App (1st) 100768, 358 Ill.Dec. 736, 965 N.E.2d 1215, issued on February 10, 2012. There, we held that the trial court lacked authority to appoint a special administrator under the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2008)) because letters of office had already issued and a probate estate had been opened. We explained that F. John Cushing, the administrator de bonis non of the estate of Claudia Zvunca, was the personal representative of the deceased person, and that "[u]nless and until he [was] removed, he [had] the exclusive authority to bring the wrongful death action." Cushing I, 2012 IL App (1st) 100768, ¶ 100, 358 Ill.Dec. 736, 965 N.E.2d 1215. We also noted that Cushing, as the administrator, possessed the sole right to conduct and control the suit. Id. We therefore vacated the circuit court's order appointing the "special administrator."
¶ 267 Judge Haddad held a court hearing on March 30, 2010 and discussed Cristina's deposition. Present were attorneys for both defendants, GAL Gubbins, attorney Colin O'Malley (of the Goldberg, Weisman & Cairo law firm), Novoselsky, and Olson (on behalf of Tiberiu Klein). Cushing, Stevens and GAL Ammendola were not present. After noting that Cristina would be arriving in the United States on April 5, Judge Haddad directed her to meet with her attorneys on April 12 or 13 in private to protect her privacy and the attorneys' right to prepare the client and "to foster better confidence and trust by and between the parties here, the attorney and client." This meeting was to take place at Cairo's office and Novoselsky confirmed to the court that he was not planning
¶ 268 Novoselsky informed the court of the status of the related cases that had been transferred to Judge Haddad that he had transferred back to Judge Budzinski for reassignment. Two of those cases — the suit filed on June 1, 2009 by Novoselsky (09 L 6397) (in which Cushing had taken an "SOJ" from Judge Haddad) and a suit filed by Klein in his individual capacity — had been assigned to Judge Pierce. Novoselsky had asked Judge Pierce to recuse himself. Judge Pierce, concerned that the parties should not be in front of multiple judges, sent the cases to Judge Maddux. (It is not clear why Novoselsky did not request that the cases go back to a judge other than Judge Maddux as he had done when he filed the emergency motion to consolidate and transfer on December 30, 2009). Novoselsky then further informed Judge Haddad that "Judge Maddux, reviewing the record and hearing from all the defense attorneys, said, fine, I'm going to put everything other than the case [currently] in front of Judge Haddad on the stay calendar." Judge Maddux had also stated that any future lawsuits that might be filed would also be put on the stay calendar.
¶ 270 On April 7, 2010, Judge Haddad met with Cristina and her grandmother along with a Romanian interpreter. The purpose of the meeting was for Judge Haddad "to be satisfied that she is fully capable and competent to testify and that she's been informed by me of the importance of doing so." After meeting with Cristina, Judge Haddad told her that she must appear for deposition on April 14, 2010.
¶ 271 GAL Douglass expressed her concerns and stated she believed it would be beneficial for Cristina to first see a psychologist before, and after, testifying to make certain that Cristina was prepared to handle any revesting of the incident that might occur. GAL Gubbins disagreed noting that there could be dire consequences to Cristina regarding the litigation if the deposition did not proceed. Cairo also expressed his concern that "the purpose here is to have her seen by a psychologist and then come in on an emergency motion the very next morning when the deposition is scheduled because some psychologist may say, as the person in Romania said, oh, this person has posttraumatic stress disorder."
¶ 272 Judge Haddad informed the parties that there were two aspects to his conversation with Cristina. The first was that Cristina disagreed with Judge Locallo's decision to appoint Cairo's office, and Novoselsky in particular, to represent her. Judge Haddad additionally stated that Cristina was relying mainly on what appeared to be representations from Klein.
¶ 273 As to the second aspect of his conversation with Cristina, which was "the stress," Judge Haddad stated "I'm not a psychologist but she seemed to be very composed when she spoke to me, very, very well composed and extremely articulate." Judge Haddad decided he would neither deny nor order Cristina to see a
¶ 275 Cristina failed to appear for her deposition on April 14, 2010. Defendants sought sanctions. On June 4, 2010, Judge Haddad ordered Cristina to appear for her deposition and tender her answers to interrogatories within 60 days of trial, i.e. by July 6, 2010. He further ordered that if she failed to comply, she would be sanctioned in one or more ways, including being barred from testifying, being barred from maintaining her particular claim, having her claim dismissed with prejudice, and/or such other relief sought by the parties.
¶ 277 While Cushing's interlocutory appeal was pending before this court, the underlying Illinois action was settled for $2,090,000 ($2 million from Greyhound and $90,000 from Motor Coach). On June 10, 2010, the court issued an order finding Greyhound's offer of $2 million to be made in good faith, fair and reasonable, and in the best interest of the minor, Cristina. The court also noted that it made its finding after "having heard oral presentations by Court appointed attorney, Colin O'Malley, Court appointed Guardian ad litem David J. Gubbins, counsel for defendant Greyhound, Paul Bozych and Colorado attorney for TB Klein, James Avery, all parties in interest having been notified." The cause of action against Motor Coach remained pending.
¶ 279 Cristina failed to appear for her deposition by the court ordered date of July 6, 2010. On July 7, 2010, Judge Haddad, pursuant to Illinois Supreme Court Rule 213 (eff. July 1, 2001) and Rule 219 (eff. July 1, 2002), entered an order granting Motor Coach's motion to bar Cristina from testifying as to any claims pending before the court and to dismiss with prejudice all claims for negligent infliction of emotional distress on behalf of Cristina.
¶ 281 As noted earlier, during the September 3, 2009, hearing before Judge Maddux, disagreement was expressed between Novoselsky and Stevens as to whether Cristina's own personal injuries for emotional distress were present in the 2007 lawsuit. It is undisputed that the 2007 action contained a count for negligent infliction of emotional distress, filed on behalf of Cristina, as noted by Stevens. Novoselsky's position, however, was that "the only possible plaintiff for an action belonging to the child" was the child's estate, who "nobody bothered to name" in the 2007 action. Noting that the child's estate was his client, Novoselsky had argued "my client isn't currently represented in that case, other than as a beneficiary in a supervised estate." We note that Cushing refers to case No. 09 L 10417 as the "Duplicate Case" and further notes that "[t]he complaint was not served or answered, there was no discovery, and there was no substantive motion practice or other activity." On July 14, 2010, on the oral motion of guardian ad litem David Gubbins, the case filed by Novoselsky, No. 09 L 10417, was dismissed without prejudice.
¶ 283 On September 1, 2010, the court issued an order finding Motor Coach's offer of $90,000 to be made in good faith, fair and reasonable, and in the best interest of the minor, Cristina. The court noted that it made its finding after "having heard oral presentations by Court appointed Guardian ad litem, David J. Gubbins, counsel for Defendants Motor Coach Industries International. Inc. and Motor Coach Industries, Inc., and Court appointed attorney, David Novoselsky."
¶ 285 On September 24, 2010, the trial court entered an order dismissing the case "with prejudice." On October 1, 2010, the trial court entered an order of distribution of fees and expenses and again stated that the court was "dismissing the case with prejudice." The settlement proceeds were allocated as follows: $1,107,700 (53%) to the beneficiaries of the estate; $522,500 (25%) for attorney fees; and $459,800 for costs, expenses and guardian ad litem fees. As to the wrongful death settlement proceeds, Cristina was awarded 95% and Klein was awarded 5%. Cristina's net recovery was $1,001,965 (wrongful death) plus $53,000 (emotional distress). Klein's net recovery was $52,735 (wrongful death).
¶ 287 On October 25, 2010, notices of appeal were filed in the trial court by GAL Ammendola, Stevens, Cushing, and Klein. Klein's appeal, along with two others he filed, were subsequently dismissed.
¶ 289 Cristina turned 18 on April 12, 2012. We subsequently allowed her motion to substitute for all guardians.
¶ 291 We take judicial notice that, based on the settlement agreement in this Illinois action, the Colorado action was dismissed by the federal court on June 30, 2011. Klein has appealed that decision.
¶ 293 In accordance with our opinion in Cushing I, neither beneficiary has individual standing to appeal a wrongful death action. Cushing is the only proper party who can represent Claudia's estate and the interests of the beneficiaries in the wrongful death action. However, this appeal involves the settlement of a lawsuit involving both the wrongful death action and Cristina's individual claims for emotional distress, those claims having been pled as separate counts in the complaint below. Although several parties and attorneys have purported to represent Cristina's interests during the course of this litigation, none (with the exception of Tiberiu Klein) filed an appeal objecting to the settlement. As noted, Klein filed an appeal, purportedly on behalf of the minor, Cristina, as her "plenary guardian." In any event, Tiberiu Klein has no standing and we allowed his motion to withdraw from this appeal.
¶ 294 During the pendency of this appeal, after all briefs were submitted and this case was ready for disposition, Cristina, pro se, sought leave to intervene and substitute for all guardians based on her having reached the age of majority. We allowed Cristina's motion to substitute for all guardians. However, Cristina further asserted in an affidavit that she objects to the settlement. Yet the court-appointed guardian ad litem has never filed an appeal objecting to the settlement on her behalf. In fact, throughout the pendency of this appeal and the various motions that were filed, the court-appointed guardian ad litem has sought to uphold
¶ 295 The instant appeal was previously part of a consolidated appeal, which included: (1) No. 1-10-3176, filed by Cristina's former guardian ad litem, Marina E. Ammendola, who was removed by Judge Locallo; and (2) No. 1-10-3196, filed by the law firm of Clancy & Stevens and Stevens, the attorneys hired by Cushing who were also removed by Judge Locallo. These two appeals were limited to issues related to attorney fees and costs. On February 28, 2013, this court heard oral argument limited to the issues raised in this individual appeal filed by Cushing. We did not address any issues related to fees. Subsequently, on March 15, 2013, this court entered an order deconsolidating the three appeals, but allowing all briefs and records filed in the prior consolidated appeal to stand.
¶ 297 Although by this opinion the fee issues raised by Novoselsky
¶ 298 On October 25, 2010, notices of appeal were filed in the trial court by all appellants in the previously consolidated appeal, including Cushing. Pursuant to Supreme Court Rule 303(a)(1), these appeals were timely, having been filed within 30 days of either final order. Ill. S.Ct. R. 303(a)(1) (eff. May 30, 2008).
¶ 299 Novoselsky nonetheless contends that neither the September 24, 2010 order, nor the October 1, 2010, order was final or appealable. He notes that the October 1, 2010, order, entitled "Order of Distribution of Fees and Costs," incorporated the September 24, 2010 order dismissing the cause of action. He argues, however, that the order directing Greyhound
The requirement that a bond be purchased is a supplemental matter that did not divest this court of jurisdiction. The Illinois Supreme Court has explained that, according to its rules, "appeals may ordinarily only be taken from final orders which dispose of every `claim'-i.e., `any right, liability or matter raised in an action.' [Citation.]" John G. Phillips & Associates v. Brown, 197 Ill.2d 337, 339, 259 Ill.Dec. 12, 757 N.E.2d 875 (2001). The orders here were final because the rights of the parties had been established and the case had been dismissed "with prejudice." The purchase of a bond or other security was a matter that was collateral to the judgment and did not affect the appealability of the final orders. We have jurisdiction over this consolidated appeal pursuant to Illinois Supreme Court Rule 303 (eff. June 4, 2008), which provides for appeal from a final judgment of the circuit court.
¶ 301 Cushing raises several issues in his brief and contends that the trial court erred: (1) by granting the motion for substitution of Judge Zwick for cause where there was no evidence of prejudicial trial conduct or personal bias; (2) when it sua sponte removed and replaced counsel who had been retained by him, the duly appointed supervised administrator, without notice, hearing, or opportunity to be heard; (3) when it excluded the duly appointed supervised administrator from participating in the wrongful death case, including its settlement; (4) when it directed the guardian ad litem, whom the court had appointed after removing the former court-appointed guardian ad litem, to conduct settlement negotiations in the wrongful death action, including on behalf of the estate of Claudia Zvunca, deceased; (5) when it sanctioned the minor plaintiff by dismissing her claims with prejudice; and (6) by approving settlement of the wrongful death action where the administrator was excluded from participation and the court-appointed guardian ad litem and attorneys failed to show that the settlement was in the best interest of the estate and the minor. We begin with a threshold issue.
¶ 303 Cushing argues that the September 8, 2009 order that removed and replaced the counsel he had retained based upon the existence of a "conflict" is void. He contends that the court had no jurisdiction to enter the order because there was no motion to disqualify the attorneys presented to the court, and that the court "summarily stripped the Estate and Cristina of all their qualified attorneys seven days before trial when they were ready to
¶ 304 Cushing also asserts, however, that no conflict existed in the present case that justified removing his chosen counsel. He notes that Judge Zwick had determined "on two prior fully briefed motions and in two thorough written opinions" that any "conflict" on the part of Stevens had been fabricated. He argues that Judge Locallo "failed to analyze the supposed conflicts." (Emphasis added.)
¶ 305 Generally, "[a] party seeking to disqualify counsel bears the burden of proving the existence of a conflict of interest." (Emphasis added.) Kensington's Wine Auctioneers, 392 Ill.App.3d at 13, 330 Ill.Dec. 826, 909 N.E.2d 848. In the instant case, however, the order was entered on the court's own motion, without notice, hearing, or the opportunity to be heard. Thus, neither Greyhound — nor any party — met the burden of "proving" the existence of a conflict of interest sufficient to disqualify counsel. Nonetheless, citing Ott v. Little Company of Mary Hospital, 273 Ill.App.3d 563, 210 Ill.Dec. 75, 652 N.E.2d 1051 (1995), defendants contend that Judge Locallo did not err in removing Cristina's attorneys and the guardian ad litem because a court has "a duty and broad discretion to protect" the rights of minors involved in litigation. As the Ott court explained: "`The court, whose duty it is to protect the interests of the infant, should see to it that they are not bargained away by those assuming, or appointed, to represent him.'" Id. at 577, 210 Ill.Dec. 75, 652 N.E.2d 1051 (quoting Kingsbury v. Buckner, 134 U.S. 650, 680, 10 S.Ct. 638, 33 L.Ed. 1047 (1890)).
¶ 306 Citing Sullivan v. Eichmann, 213 Ill.2d 82, 90, 289 Ill.Dec. 673, 820 N.E.2d 449 (2004), defendants also note that "a client has an absolute right to discharge an attorney at any time with or without cause." (Emphasis added.) Without citation to any authority, however, defendants further assert that "[a] trial court necessarily has the same power to protect the interests of its ward." (Emphasis added.) Defendants also assert that "likewise" the court "must have the power to discharge a GAL." Therefore, defendants argue, "[g]iven the trial court's power, there is no issue to be considered on appeal as to the removals."
¶ 307 We agree that a court has a duty to protect the interests of its ward and that a court possesses the power to disqualify counsel where it is appropriate. However, to the extent defendants interpret these rules to mean that a court's power is unlimited with respect to the
¶ 308 We first note our standard of review: "A trial court's decision to disqualify counsel will not be overturned on appeal absent an abuse of discretion, which is defined as a ruling that no reasonable person would agree with." Pedersen & Houpt, P.C. v. Summit Real Estate Group, LLC, 376 Ill.App.3d 681, 685, 315 Ill.Dec. 517, 877 N.E.2d 4 (2007). Furthermore, we apply an abuse of discretion standard on review even where the trial court's ruling relies only upon affidavits and documentary evidence, but no oral testimony, because the trial court necessarily made factual determinations. Gagliardo v. Caffrey, 344 Ill.App.3d 219, 225-26, 279 Ill.Dec. 421, 800 N.E.2d 489 (2003).
¶ 309 Citing Muellman-Cohen v. Brak, 361 Ill.App.3d 52, 54, 296 Ill.Dec. 927, 836 N.E.2d 678 (2005), Cushing asserts that Judge Locallo's order must be vacated as void because it lacks any analysis or reasoning. In Muellman-Cohen v. Brak, defendants moved to disqualify plaintiff's counsel after learning that he was a post-occurrence witness to plaintiff's accident (he drove her to the emergency room). The trial court disqualified plaintiff's counsel after a hearing was held. Plaintiff appealed but there was no transcript of the hearing and the trial court's written order did not specify the grounds for the disqualification. This court stated: "If the trial court had relied on Rule 3.7(a), the trial court would have been in error because Rule 3.7(a) bears no applicability to these facts." (Emphasis added.) Id. at 54, 296 Ill.Dec. 927, 836 N.E.2d 678. Although the defendants there argued that this court should affirm the trial court's order pursuant to Foutch v. O'Bryant, 99 Ill.2d 389, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984), we determined instead that we did not know whether plaintiff could have provided a more complete record than she did. As we explained: "Given the seriousness of the trial court's decision to disqualify plaintiff's attorney, we will not presume the trial court acted in conformity with the law where the court has not set forth specific grounds on which we may defer to its judgment." Muellman-Cohen, 361 Ill. App.3d at 54, 296 Ill.Dec. 927, 836 N.E.2d 678. We also noted: "This court has repeatedly urged our trial judges to draft dispositive orders that set out the rationales for their decisions so that we may defer to the trial court's discretion with confidence." Id. (adequate findings relieve the appellate courts of having to grope through the record to decide whether some combination of credible evidentiary items could sustain a line of factual and legal conclusions that would support the trial court's ultimate decision) (citing A. P. v. M.E.E., 354 Ill.App.3d 989, 290 Ill.Dec. 664, 821 N.E.2d 1238 (2004)); In re Marriage of Adler, 271 Ill.App.3d 469, 476, 208 Ill.Dec. 31, 648 N.E.2d 953 (1995) (specific findings by the trial court form the predicate to the deference reviewing courts accord the trial court's exercise of its discretion);
¶ 310 As opposed to Judge Zwick's written ruling on Greyhound's prior motions to disqualify Cushing's counsel, this court has no reasoned analysis for Judge Locallo's sua sponte "blanket" removal order. Although Cushing now requests that we find the order void, we note that the procedural posture of Muellman-Cohen v. Brak was different than that of the instant case. Moreover, the court there vacated the order but also remanded the case with directions that the trial court enter a written order specifying the grounds for its decision to disqualify the plaintiff's attorney. That option is no longer available in view of Judge Locallo's retirement.
¶ 311 Although a trial court's disqualification of counsel is viewed for an abuse of discretion, the parties have not cited, nor have we found, an Illinois case — or any case for that matter — addressing the disqualification of counsel without notice or hearing. However, in another context, i.e., a decision whether to impose sanctions, this court has stated that, although the decision is within the sound discretion of the trial judge and will not be reversed on appeal absent an abuse of discretion, "the predicate to such deference is that the circuit court make an informed and reasoned decision. A hearing ought to be held to give the parties involved an opportunity to present any evidence needed to substantiate or rebut the claim for sanctions and an opportunity to argue their positions." In re Estate of Smith, 201 Ill.App.3d 1005, 1009, 147 Ill.Dec. 398, 559 N.E.2d 571 (1990); accord In re Marriage of Johnson, 2011 IL App (1st) 102826, 357 Ill.Dec. 647, 963 N.E.2d 1045 (although trial court could sua sponte sanction an individual without a motion presented by a party, trial court could not act without a hearing and should have allowed the attorneys the opportunity to defend themselves).
¶ 312 Arguably, the removal of a client's chosen counsel is more drastic than the imposition of sanctions upon an attorney. "[A]ttorney disqualification is generally considered a drastic measure, because it bars a party from retaining the counsel of its choice and thus destroys the attorney-client relationship." Pedersen & Houpt, P.C., 376 Ill.App.3d at 685, 315 Ill.Dec. 517, 877 N.E.2d 4. "Courts are therefore cautious about granting motions to disqualify, lest they be used tactically as a means of harassment." Id. "This concern must be balanced against the need to enforce the canons of legal ethics, which are designed to protect the attorney-client relationship and maintain public confidence in the integrity of the legal profession and the administration of justice." Id.
¶ 313 Despite the absence of a hearing or any written order containing a reasoned analysis, defendants claim that "[t]he underlying reason for the removal of the attorneys and GAL rests with Ammendola and Stevens." As they did in their motion to disqualify Stevens that was denied by Judge Zwick, they again refer to the fact that Cristina resided with Stevens and assert that "Ammendola and Stevens had professional duties to be candid with the court and opposing counsel." Defendants also claim that "[b]y withholding information, Ammendola and Stevens caused their problems with Cristina, the interview with Judge McGury, the Malkin report, the federal lawsuit, the motion to depose/disqualify Stevens and motion to reconsider, and
¶ 314 According to comments made by Judge Locallo after he issued his order, the "conflicts" that required the disqualification of Stevens, can be summarized as follows: (1) Stevens was a witness to Cristina's emotional distress claim and therefore disqualified under the witness-advocate rule; (2) Cristina had sued Stevens, regardless of the suit's merit ("the bottom line is you cannot serve two masters when the one master is suing you"); and (3) Stevens had answered ready for trial before Judge Maddux on September 3, 2009, even though Cristina's deposition had not been taken, there was no evidence that the child was under care for the emotional distress, and Cristina had told Judge McGury she did not have any emotional problems. We shall address each basis.
¶ 316 Defendants argue at length regarding GAL Ammendola's and Stevens's "professional duties to be candid with the court and opposing counsel" regarding the fact that Cristina had been living with Stevens. As noted, Greyhound had previously raised Rule 3.7 of the Illinois Rules of Professional Conduct (Ill. R. Prof. Conduct R. 3.7 (eff. Aug. 1, 1990)), or the "witness-advocate rule," before Judge Zwick as a basis for removing Stevens. At the time of Judge Zwick's ruling in 2008, and Judge Locallo's ruling in 2009,
¶ 317 "The advocate-witness rule precludes an attorney from acting as an advocate and as a fact witness in the same case." Northern Moraine Wastewater Reclamation District v. Illinois Commerce Comm'n, 392 Ill.App.3d 542, 573, 332 Ill.Dec. 18, 912 N.E.2d 204 (2009). "However, the advocate-witness rule is not absolute." Id. "The testimony of an attorney in a case that he is trying should be
¶ 318 In Dumon, this court interpreted the former rule 5-101(b)(4) of the Illinois Code of Professional Responsibility (Ill. S.Ct. R. 5-101(b)(4) (eff. July 1, 1980) (repealed Aug. 1, 1990)), which provided that an attorney may testify without withdrawing from the case when his withdrawal would "`work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.'" Dumon, 110 Ill.App.3d at 490, 66 Ill.Dec. 148, 442 N.E.2d 574 (quoting Ill. S.Ct. R. 5-101(b)(4)). Dumon involved a "trade secret case, replete with technical testimony and exhibits." Id. The court, noting that the case had proceeded in the trial court for seven years between the time the complaint was filed and the time the trial counsel offered his testimony, held that the trial court did not err in permitting the attorney to testify as a witness, without requiring him to withdraw from the case.
¶ 319 In her written memorandum order, Judge Zwick analyzed and applied Rule 3.7 to the present case. In denying defendants' motion to disqualify Stevens, Judge Zwick noted that plaintiffs acknowledged Stevens would not be called to testify "on behalf" of Cristina. Judge Zwick further concluded, among other things, that any facts elicited from Stevens would be cumulative to testimony proffered by numerous other witnesses and it was not evident how Steven's testimony would be useful to the defense or how her lack of testimony would prejudice the defense.
¶ 320 As Cushing notes, Rule 3.7 permits continued representation even if the attorney would testify, "if refusal to accept or continue the employment would work a substantial hardship on the client." Ill. R. Prof. Conduct R. 3.7(a)(4) (eff. Aug. 1, 1990). In her order denying defendants' motion to reconsider, Judge Zwick pointed out that hardship: depriving the estate and Cristina of the counsel who, she noted, had an "encyclopedic knowledge" of the discovery that had taken place throughout the "five years of aggressive litigation that [had] included transnational and international discovery and depositions]." She noted further that "[d]ocuments, which are the subject of production requests, motions and privilege orders, number[ed] in the thousands." She ruled that disqualification would "deny these plaintiffs of the knowledge and experience of their attorneys." That, Judge Zwick concluded, would be an "injustice."
¶ 321 In disqualifying Stevens, Judge Locallo did not refer to Judge Zwick's rulings and there is no indication in the record that he considered her analysis of this issue (although we note that, in his August 17, 2009 email to Klein, Novoselsky stated that Judge Locallo had already "laughed" at Judge Zwick's written decision). We conclude that the witness-advocate rule was not grounds for disqualifying Stevens. We also note that following Stevens's removal, the record shows no attempt by any party to depose her or call her as a witness.
¶ 323 Judge Locallo also commented on the fact that "Cristina" had sued Stevens in federal court, referring to a case filed by Novoselsky. Cushing now notes that nothing in the record shows that Judge Locallo "considered the specific allegations of that case, whether it actually created a conflict or whether the conflict was manufactured for an improper purpose."
¶ 324 Judge Locallo concluded that the mere filing of the lawsuit was a conflict sufficient for disqualification, regardless of the merits of the case: "the bottom line is you cannot serve two masters when the one master is suing you." Under the "convoluted attorney-created procedural labyrinth" involved in this case, we disagree. While we recognize that a lawsuit filed against an attorney by his or her own client may "normally" be grounds for disqualifying that attorney, there was nothing "normal" about the filing of the malpractice lawsuits, purportedly on behalf of the "minor."
¶ 325 As noted above, Novoselsky initially filed the federal lawsuit on behalf of his clients who were, at the time "Vasile Zvunca and Maria Zvunca, individually and as next friend of a minor, Cristina Zvunca" As to the state lawsuit, it was originally filed on behalf of his clients who were, at the time, "the estate of Cristina Zvunca, a minor, through its plenary guardian, Tiberiu Klein, and Cristina Zvunca, an individual entitled to bring suit to protect her own individual rights." Klein would later claim that he did not authorize this suit (and Cristina, a minor could not have retained Novoselsky on her own). Moreover, although it is unclear when Klein fired Novoselsky, Judge Locallo did not address Novoselsky's simultaneous representation (or former representation) of Klein and Cristina, who a prior panel of this court, as justification for allowing two wrongful death actions to proceed in separate fora (one in Illinois and the other in a Colorado federal court), had already noted were "legally strangers" and "two parties with potentially divergent interests." Marshall, No. 1-05-0701, slip op. at 2-3 (2005) (unpublished order under Supreme Court Rule 23). Although Judge Locallo was made aware of Klein's interests in "his" Colorado suit, he did not explore or even consider Klein's possible motive in becoming plenary guardian as part of his (prior ongoing) attempt to remove GAL Ammendola and Stevens. Judge Locallo also did not consider the fact that Cristina had told Judge McGury that she received her information from Klein. It was an abuse of discretion for the court to sua sponte disqualify Stevens without allowing her to address the court before ruling.
¶ 326 It was a further abuse of discretion to not allow Stevens to address the court after her removal, i.e., during the hearing where Judge Locallo stated his "reasons" for her disqualification. As we noted earlier, when Stevens told the court there was "more to this," Novoselsky stated that Stevens had been removed from the case. Judge Locallo then told Stevens she was not going to address the court. Stevens told the court she needed to "know the basis" upon which the court was making its rulings and what materials the court had reviewed and had not reviewed and how it had come to its conclusions. Novoselsky interjected, "Judge, she has no right to cross-examine the Court on a ruling." Stevens then informed the court that "Mr. Novoselsky is the reason that Cristina was never evaluated" and that Judge Locallo had "not had an opportunity to see that." The court then told Stevens to "[t]ake a seat" and told her "I'm not going to respond to you." Novoselsky then discussed the background of the case, including the actions taken by GAL Ammendola and Stevens. Stevens stated that she should be given an opportunity to speak if the court was going to allow Novoselsky to say things that were not true. Again noting it had already found Stevens had a conflict, the court again told her to "sit down." Novoselsky then discussed the status of the case. In sum, the mere
¶ 328 An additional reason that Judge Locallo listed for his decision to remove Stevens was the fact that Stevens had answered ready for trial before Judge Maddux on September 3, 2009, even though Cristina's deposition had not been taken, there was no evidence that the child was under care for the emotional distress, and Cristina had told Judge McGury she did not have any emotional problems. Judge Locallo did not allow Stevens the opportunity to explain her decision and it is unclear as to whether he was aware of the complicated history regarding the issue of Cristina's testimony, or the conflict between Klein (both as pro se and as represented by Novoselsky), and GAL Ammendola. The following chronology of events sheds additional light on the issue.
¶ 329 As noted, Greyhound began seeking Cristina's deposition in 2005. On July 10, 2007, in addition to the motions noted above, Greyhound also filed a motion to compel Cristina's deposition to take place in Cook County. In a letter dated September 6, 2007, Dr. Leventhal opined that it was not appropriate for Cristina to give a deposition. Judge Zwick, on both September 11, 2007, and January 31, 2008, when Cristina was again living in the United States, requested a current medical evaluation before ruling on whether it was in Cristina's best interests to give a deposition. Thereafter, Klein refused to cooperate with GAL Ammendola in obtaining a current medical evaluation. On February 20, 2008, GAL Ammendola faxed a letter to Klein, who was Cristina's temporary guardian at the time, urging his cooperation. On February 21, 2008, the day after GAL Ammendola's written request to Klein to cooperate, Novoselsky faxed a letter to GAL Ammendola informing her that he had been "retained by Klein to represent his interests in this matter." On March 11, 2008, the trial court ordered that Cristina be produced for a medical examination by the pediatric psychiatrist. On May 8, 2008, at his deposition, Dr. Leventhal testified that there were two reasons he did not think it was appropriate for Cristina to give a deposition: (1) she had not been adequately engaged in a treatment program that would be able to support her through the process; and (2) based on the records he had read, Cristina was struggling and to have her reexperience these events through a deposition could have exacerbated her problems and might cause a reinjury. He further stated that his opinion was the same regarding Cristina testifying at trial.
¶ 330 Greyhound continued to pursue Cristina's testimony. On June 3, 2008, Judge Zwick noted that, with the exception of Cristina's testimony, the case was ready for trial.
¶ 331 On June 5, 2008, Judge Zwick reiterated that she wanted an updated medical examination of Cristina before ruling on Greyhound's motion to compel Cristina's deposition or Greyhound's Rule 215 motion. Judge Zwick ordered GAL Ammendola "to attempt evaluation of Cristina by [the pediatric psychiatrist] on or before June 20, 2008." Thereafter, Klein continued his refusal to cooperate with GAL Ammendola in obtaining a current medical evaluation. Novoselsky became involved. As described earlier, Novoselsky sent GAL Ammendola a letter on June 10, 2008 in which he stated he represented both Cristina and Klein. Noting that Klein was Cristina's "lawful guardian, albeit temporary," Novoselsky asserted that GAL Ammendola, the court-appointed guardian ad litem, could not speak to
¶ 332 On June 11, 2008, GAL Ammendola filed an emergency guardian ad litem report to the court advising it that she was unable to communicate with the minor. Also, on July 11, 2008, Judge Zwick denied Greyhound's Rule 215 motion for an independent medical exam of Cristina but granted Greyhound leave to file a motion to bar Cristina from testifying at trial and to dismiss Cristina's negligent infliction of emotional distress claims. On July 17, 2008, as part of Klein's effort to be appointed Cristina's plenary guardian, the probate division appointed GAL Malkin who concluded, based on interviews with Klein, Cristina, and her grandparents that there was no conflict between Cristina and Klein and no conflict with respect to the proceeds of any personal injury action that may be forthcoming. On July 18, 2008, a hearing was held before Judge McGury in the probate division where 14-year-old Cristina told Judge McGury that she did not want to see the pediatric psychiatrist because she did not "have any mental problems" and that she wanted Klein to be her guardian. Cristina also asked Judge McGury "[w]hy can't Ms. Ammendola leave us alone?" The arguments between GAL Ammendola and Novoselsky during that hearing are detailed earlier in this opinion.
¶ 333 Clearly there was disagreement regarding the issue of whether Cristina could — or should — testify, and whether she should first be evaluated medically. However, we find it troubling that the record reflects confusion regarding the basis for the disagreement. There is no indication in the record that GAL Ammendola's concern was anything other than her concern that testifying might harm Cristina emotionally. Specifically, her concern was that Cristina's discussing the event would revest her with the event and cause her permanent harm. The record clearly shows, however, that this concern was based on opinions of prior medical professionals, shared by Stevens, raised before Judge Zwick, and confirmed by expert, Dr. Leventhal.
¶ 334 Judge Locallo did not address the complicated issue of Cristina's testimony, the concerns over whether it could harm her emotionally, or clearly explain the reasons for the problems with obtaining that deposition. Stevens was never given the opportunity to address the court and explain her decision. Thus, the fact that Stevens answered ready for trial before Judge Maddux on September 3, 2009 did not require that Stevens be disqualified.
¶ 336 As Judge Locallo explained, he had disqualified the Leahy & Hoste firm, "not for any reason other than the fact that they were representing Marina Ammendola, who has been removed as guardian ad litem." However, he did not explain how the firm's representation of GAL Ammendola created a conflict. As to Lupel, who represented Stevens in the federal lawsuit, Judge Locallo stated "that conflict also exists." Therefore, for the reasons discussed, it was also an abuse of discretion to disqualify Cushing's additional counsel.
¶ 338 After our thorough review of the record in this case, the briefs of the parties, and the oral arguments, we conclude that Judge Locallo abused his discretion in disqualifying Cushing's counsel where he acted sua sponte without motion, notice or hearing to allow their input, and failed to analyze the purported conflicts. Therefore, we vacate the September 8, 2009 order that removed Stevens, Leahy, Hoste, Clancy, the Clancy firm, and the Leahy & Hoste firm.
¶ 339 More importantly, even assuming arguendo that the court could have granted a motion to disqualify the administrator's attorneys, Cushing should have been allowed to select new counsel. Although Cristina was a plaintiff as to the negligent infliction of emotional distress count, there is no dispute that Cushing, as the representative of Claudia's estate, was the plaintiff as to the remaining counts for wrongful death. Also, although Cristina was a beneficiary of Claudia's estate and her interests were to be protected by the court, there is no dispute that Klein was also a beneficiary of Claudia's estate. Regardless of Cushing's "reinstatement" by the judge in the law division, removal of Cushing's attorneys left the estate unrepresented in all subsequent actions. While it is true that Cushing subsequently retained attorney Scott Golinkin, the fact remains that Claudia's estate was not represented during the settlement negotiations, as we next address in further detail.
¶ 341 Part of our jurisdictional analysis in Cushing I involved a conclusion that is substantively relevant to the instant appeal. We concluded that the trial court's order appointing MB Financial Bank, N.A. as the special administrator "effectively changed Cushing's status" and "excluded Cushing from his appointed role." Cushing I, 2012 IL App (1st) 100768, ¶ 85, 358 Ill.Dec. 736, 965 N.E.2d 1215. Moreover, the record shows that MB Financial Bank, N.A., played no role in the settlement negotiations, leaving Claudia's estate unrepresented.
¶ 342 Cushing did not expressly state any opposition to the settlement below. We are mindful, too, that during the October 27, 2009 hearing before Judge Locallo, Cushing indicated he did not need to participate in the settlement discussions. Defendants now contend that "Cushing's failure to oppose the settlement constitutes waiver." Citing Dillon v. Evanston Hospital, 199 Ill.2d 483, 495, 264 Ill.Dec. 653, 771 N.E.2d 357 (2002), they further argue that, "[e]ven if Cushing believed that the court would not listen, he needed to make an offer of proof to preserve the issue." In Dillon, the Illinois Supreme Court explained:
Dillon is distinguishable. The instant case did not involve the admission of evidence. Moreover, as Cushing correctly notes, the cases cited by defendants address waiver
Cushing additionally notes that neither he nor his lawyers were present in court that day and that Cushing had been excluded from the pretrial conferences leading up to the settlement.
¶ 343 Defendants counter that, on June 7, 2010, both Cushing and Golinkin spoke privately with the court and Cushing's involvement is reflected in a bystander report. That bystander report, however, was prepared on May 30, 2012, and this court denied defendants leave to file it as a supplemental record.
¶ 344 Defendants also contend that the court was receptive to all input and Cushing was "given every opportunity to speak." Cushing argues, however, that it is irrelevant whether he spoke out about the settlements. He argues that once he was "wrongly removed from his office, later rulings concerning Claudia's Estate were void." He further notes that, once he was removed as a party, the trial judge did not afford him the rights of a party and instead treated him merely as a "person knowledgeable" — someone with useful information but without authority to approve or reject a settlement.
¶ 345 Defendants argue that, on June 9, 2010, after allowing Avery to speak on behalf of Klein, the court "offered the floor to Cushing." Although defendants include excerpts of the discussion, we believe the comments must be viewed in context:
¶ 346 The court then heard detailed presentations beginning with attorney Colin J. O'Malley of the law offices of Goldberg, Weisman & Cairo, Ltd., who appeared on behalf of "MB Financial and Cristina Zvunca, a minor." Greyhound's attorney and GAL Gubbins also addressed the court at length. GAL Gubbins stated that he, as guardian ad litem, had "exclusive power to direct, manage, control the suit on behalf of [the] minor" subject to supervision and limitation by the court. He requested the court to accept Greyhound's $2 million offer.
¶ 347 Golinkin then asked to address the court. He told the court that, with respect to a $2 million offer made by Greyhound in 2009 that was purportedly communicated to all the parties, it was never communicated to Cushing or his attorneys. Golinkin also wanted it put on the record that, although MB Financial Bank, N.A., had been appointed as the guardian, he had not heard anything in writing or otherwise, regarding the guardian's position on the settlement. There was then discussion regarding MB Financial Bank, N.A.'s role as guardian and special administrator. GAL Gubbins opined that it had no active or real role and that the court needed input only from the GAL pursuant to the case of Ott.
¶ 348 The transcript clearly supports Cushing's argument that, once he was removed by Judge Locallo as a party, regardless of his "reinstatement," the trial court did not afford him the rights of a party and instead treated him merely as a "person knowledgeable" — someone with useful information but without authority to approve or reject a settlement. As Judge
¶ 349 While it is true that the instant case involved counts for Cristina's personal emotional distress claims, this was also a wrongful death action. Cushing was the administrator and as we held in Cushing I: "`it is this administrator who possesses the sole right of action or control over the suit.' * * *[Citation.]"(Emphasis omitted.) Cushing, 2012 IL App (1st) 100768, ¶ 92, 358 Ill.Dec. 736, 965 N.E.2d 1215. The trial court erred when it excluded Cushing from participating in the wrongful death case, including its settlement. It follows that the trial court erred when it directed the court-appointed replacement guardian ad litem to conduct settlement negotiations in the wrongful death action, which Cushing has raised as an additional argument.
¶ 351 Defendants argue that the trial court had sound reasons for settling the case and exercised sound discretion by approving the settlement as in the best interests of the minor. Defendants apparently take the position that the settlement was "fair" and should be upheld, regardless of the procedural irregularities that occurred in this case. Defendants, citing Ott and Will, assert that a settlement that a trial court believed was "in the best interest" of a minor will be upheld absent an abuse of discretion. Defendants, however, were asked during oral argument who represented Claudia's estate during the settlement discussions. Regardless of defendants' arguments, the correct answer is that no one represented Claudia's estate. We agree with Cushing that this case is distinguishable from the cases of Ott and Will, which approved the use of a guardian ad litem where the trial court needed a neutral assessment of a proposed settlement for a minor that was being "obstructed" by the minor's representative.
¶ 352 Ott was a minor's medical malpractice action where the parents, who were the co-guardians of the minor's estate, objected to the terms of, and refused to consent to, a settlement agreement. Nonetheless, the trial court in Ott stated: "`This case is settled for two million dollars according to a revised structured settlement, which I find satisfactory, and a guardian ad litem will be appointed in place of the father to accept the settlement.'" (Emphasis added.) Ott, 273 Ill. App.3d at 568, 210 Ill.Dec. 75, 652 N.E.2d 1051. The parents maintained their position and refused to accept the defendants' $2 million present cash value settlement offer. The trial court subsequently accepted and approved the report of the guardian ad litem; found the recommendations were in the best interest of the child; increased the settlement amount to $2,091,782; and ordered the guardian ad litem to execute all necessary documents to settle the case. The court found the settlement was fair and reasonable and the case was dismissed. The parents appealed and the appellate court affirmed. As we have noted: "Ott stands for the proposition that `when the court believes settlement to be in the minor's best interest, the court may order a prior-appointed guardian or conservator to effectuate settlement [citation]; and if that person refuses, may appoint a guardian ad litem to settle the case on the minor's behalf." (Emphases in
¶ 353 In Will, "[f]ollowing years of litigation which included the appointment of a guardian ad litem, a bankruptcy proceeding, a mediation, a demand for settlement and an objection to this settlement by Linda, [who was the decedent's mother and co-administrator of the estate,] the trial court approved settlement in the amount of $16 million." Will, 378 Ill.App.3d at 282, 317 Ill.Dec. 313, 881 N.E.2d 481. (Emphasis added.) The facts in Will were not typical and were distinguishable from the facts in the instant case. Although the trial court in Will, "in the stead of Linda as coadministrator executed the settlement papers," and the guardian ad litem, on behalf of the minor heirs, executed the settlement papers, they were also signed by the coadministrator (decedent's father, George Jr.) and the attorney, on behalf of the estate. We note that the Will court, relying on Ott, concluded that, despite the fact that the case involved wrongful death and survival actions rather than a medical malpractice action as in Ott, the trial court had authority to approve the settlement "because minors were involved and affected by the outcome of the settlement proceedings." Id. at 293, 317 Ill.Dec. 313, 881 N.E.2d 481. Although this may or may not be true, we believe it applies to those instances where a proposed settlement for a minor is being "obstructed" by the minor's representative. Notably, in Will, the coadministrator and the estate's attorneys did not agree with Linda's objection to the settlement. Moreover, the court noted that, although an administrator's duties do not include satisfying the administrator's "own personal interests," that was "precisely what [had] occurred" and had prompted the trial court to intervene. Id. at 292, 317 Ill.Dec. 313, 881 N.E.2d 481. As the Will court explained:
¶ 354 Nothing in the Ott or Will cases allows a trial court to direct a GAL, even a properly appointed GAL for one beneficiary, to "conduct" settlement negotiations and effectively exclude the estate's neutral
¶ 355 We are mindful that "Illinois public policy generally favors the peaceful and voluntary resolution of disputes." Haisma v. Edgar, 218 Ill.App.3d 78, 86, 161 Ill.Dec. 36, 578 N.E.2d 163 (1991). "A settlement agreement is considered a contract, and construction and enforcement of settlement agreements are governed by principles of contract law." Id. at 87, 161 Ill.Dec. 36, 578 N.E.2d 163. However, a party is not bound by a settlement agreement if his "interests were not fully and adequately represented." Jackson v. Callan Publishing, Inc., 356 Ill.App.3d 326, 341, 292 Ill.Dec. 272, 826 N.E.2d 413 (2005). We conclude that the settlement agreement is invalid because the interests of Claudia's estate were not represented. Additionally, although defendants concede that Klein was a beneficiary of the Illinois action and entitled to a share in the settlement, we disagree with their contention that the court had the authority to settle the wrongful death suit on Klein's behalf. While we do not dispute the trial court's authority to "approve" a settlement, or its authority regarding the "allocation" or "distribution" of settlement proceeds, the trial court did not have the authority to settle this wrongful death action on behalf of the personal representative of Claudia's estate. Cushing had that authority and nothing in Will or Ott, applied to the facts of this case, would support the settlement. There was no necessity to protect the minor from Cushing, so long as he had not been removed. As noted earlier, the record also does not support the trial court's decision that the minor needed protection from Cushing's chosen counsel, or from the former guardian ad litem. Moreover, the trial court has no authority to "approve" a settlement agreement between defendants and Claudia's estate, where the estate's representative was not part of the agreement. The settlement agreements with Greyhound and Motor Coach are invalid. We therefore vacate the court orders of September 24, 2010 and October 1, 2010 and remand
¶ 357 As noted, Cushing has also argued that Judge Locallo erred in granting the motion for substitution of judge directed at Judge Zwick where there was no evidence of prejudicial trial conduct or personal bias. He has additionally argued that "rectifying the errors" in this case "calls for something beyond remanding the case to Judge Haddad." He argues that we should remand the case to Judge Zwick because she was wrongly removed and that, based on her knowledge of the case, "she is best positioned to move it quickly to either a fair and reasonable settlement or to trial."
¶ 358 Defendants first argue that Cushing forfeited the issue by failing to include a copy of the motion for substitution of judge in the record. Generally, an appellant has the burden to present a sufficiently complete record of the circuit court proceedings to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with the law and had a sufficient factual basis. Foutch v. O'Bryant, 99 Ill.2d 389, 391-92, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984). During oral argument, Cushing stated that he was unaware that the motion was not in the record until defendants raised the issue in their brief. The record, however, contains the transcript of the hearing before Judge Locallo on the motion for substitution of judge for cause, as well as Judge Zwick's prior rulings that formed the basis for the motion for substitution. Thus, the record provided is sufficient to apprise this court of the relevant issue on appeal. See, e.g., Whitmer v. Munson, 335 Ill.App.3d 501, 512, 269 Ill.Dec. 821, 781 N.E.2d 618 (2002) (and cases cited therein). We shall address Cushing's argument.
¶ 359 We note that the parties cite cases involving the issue of substitution of judge as a matter of right, although the instant case involves substitution for cause. Our supreme court has recently discussed the importance of the distinction:
The instant case involves a petition for substitution of judge for cause pursuant to section 2-1001(a)(3) of the statute.
¶ 360 The parties disagree on our standard of review. In considering Greyhound's petition for substitution of judge for cause, Judge Locallo, "like any other fact finder, [was required to] weigh the evidence to determine whether the named judge showed prejudice." In re Marriage of Schweihs, 272 Ill.App.3d 653, 659, 208 Ill.Dec. 875, 650 N.E.2d 569 (1995); accord Levaccare v. Levacarre, 376 Ill.App.3d 503, 509, 315 Ill.Dec. 280, 876 N.E.2d 280 (2007). Thus, we "will not reverse a determination on allegations of prejudice unless the finding is contrary to the manifest weight of the evidence." Schweihs, 272 Ill.App.3d at 659, 208 Ill.Dec. 875, 650 N.E.2d 569. A trial court's decision "is not against the manifest weight of the evidence merely because there is sufficient evidence to support a
¶ 361 "A trial judge is presumed to be impartial, and the burden is on the party alleging partiality to overcome this presumption." Rush University Medical Center v. Sessions, 2011 IL App (1st) 101136, ¶ 16, 353 Ill.Dec. 628, 956 N.E.2d 490. As "the party making the charge of prejudice," Greyhound was required to "present evidence of prejudicial trial conduct and evidence of [Judge Zwick's] personal bias." Eychaner, 202 Ill.2d at 280, 269 Ill.Dec. 80, 779 N.E.2d 1115. Judge Locallo found that Greyhound had met its burden of demonstrating bias against Greyhound and stated:
Judge Locallo apparently concluded that Greyhound had established its burden of presenting evidence sufficient to overcome the presumption of Judge Zwick's impartiality.
¶ 362 As the Illinois Supreme Court has explained:
As the Wilson court further noted:
More recently, our supreme court reiterated that "substitution under section 2-1001(a)(3) may be granted only where the party can establish actual prejudice." In re Marriage of O'Brien, 2011 IL 109039, ¶ 31, 354 Ill.Dec. 715, 958 N.E.2d 647.
¶ 363 In the trial court, Greyhound conceded: "[T]he thrust of our motion is the * * * order issued by Judge Zwick in response to the motion to reconsider the disqualification of Miss Stevens." Although Judge Zwick referred to Klein's email to his Colorado attorney regarding settling the Colorado action, we agree with Cushing that there was no evidence that Judge Zwick had a personal bias against Greyhound that stemmed "from an extrajudicial source." Thus, the question before Judge Locallo was whether Judge Zwick's remarks revealed "`such a high degree of favoritism or antagonism as to make fair judgment impossible.'" Eychaner, 202 Ill.2d at 281, 269 Ill.Dec. 80, 779 N.E.2d 1115; (quoting Liteky, 510 U.S. at 555), 114 S.Ct. 1147.
¶ 364 During the hearing before Judge Locallo, Greyhound contended that Judge Zwick's order showed that she was biased and prejudiced against Greyhound and had "prejudged issues." Greyhound asserted that Judge Zwick was "becoming an advocate for a certain position in the case" and her "advocacy" was established where she relied on the July 2007 email that Klein had sent to Avery, his attorney in his Colorado action. Greyhound's position is that the email evinces only Avery's settlement strategy with his client, Klein, but that Judge Zwick had implied that Greyhound was involved in a "plan." Greyhound also claimed that — in the memorandum order — Judge Zwick essentially accused Greyhound and Novoselsky of conspiring to get rid of Stevens.
¶ 365 In her nine-page memorandum order, Judge Zwick concluded as follows:
¶ 366 We do not believe that any of these remarks revealed "`such a high degree of favoritism or antagonism as to make fair judgment impossible.'" Eychaner, 202 Ill.2d at 281, 269 Ill.Dec. 80, 779 N.E.2d 1115 (quoting Liteky, 510 U.S. at 555, 114 S.Ct. 1147). As an example of such remarks, the United States Supreme Court in Liteky cited the remarks alleged to have been made by a district judge in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), a World War I espionage case against German-American defendants. There, the judge purportedly stated: "`One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans' because their `hearts are reeking with disloyalty.'" Liteky, 510 U.S. at 555, 114 S.Ct. 1147 (quoting Berger, 255 U.S. at 28, 41 S.Ct. 230).
¶ 367 Although Judge Locallo focused on Judge Zwick's reference to the attempt to settle the Colorado action, we disagree that it showed any evidence of prejudice against Greyhound. Clearly, none of Judge Zwick's remarks including the reference to a "plan" to settle the Colorado action rise to the level of bias required by Wilson and Liteky. More importantly, Judge Zwick's discussion of the plan focused on the actions of Novoselsky, Klein and Cristina's grandparents. As Cushing notes, Judge Zwick did not level any accusations against Greyhound.
¶ 368 We also disagree with defendants' claim that Judge Zwick's statements regarding the federal lawsuit demonstrated her bias. Reading Judge Zwick's order in its entirety shows that her reference to the federal lawsuit did not evince any bias toward Greyhound. Rather, as Judge Zwick explained, Greyhound's initial motion to depose Stevens was predicated solely on Rule 3.7 of the Illinois Rules of Professional Conduct based on Cristina residing with Stevens, but Greyhound's renewed motion was based upon certain probate matters and upon the filing of the federal lawsuit. Although defendants now argue that the federal lawsuit had not yet been filed at the time of Greyhound's original motion to disqualify, and Greyhound "did not even mention the federal lawsuit," they nonetheless concede that Greyhound advised Judge Zwick of the federal lawsuit when it filed its supplemental brief on August 22, 2008. Moreover, as Judge Zwick noted in her May 12, 2009 order, Greyhound had asserted that the allegations in the federal lawsuit and the proceedings in federal court constituted "a conflict of interest which preclude[d] the continued representation of either the estate or the minor plaintiff by this counsel." Thus, Judge Zwick's consideration of the federal lawsuit showed no bias toward Greyhound. More importantly, as she had when discussing the plan to settle Klein's Colorado action, when she discussed the federal lawsuit, Judge Zwick focused on the actions of Novoselsky, Klein and Cristina's grandparents.
¶ 369 In sum, there was no evidence of bias against defendants on the part of
¶ 370 Having determined that Judge Zwick was improperly removed, we must consider the appropriate remedy. Since her removal on August 27, 2009, much has transpired in this action. Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994) permits a reviewing court, in its discretion, to make any order or grant any relief that a particular case may require. This authority includes the power to remand a case to a different judge. See, e.g., Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.2d 248, 263, 282 Ill.Dec. 815, 807 N.E.2d 439 (2004); Eychaner v. Gross, 202 Ill.2d 228, 279, 269 Ill.Dec. 80, 779 N.E.2d 1115 (2002); In re Marriage of Smoller, 218 Ill.App.3d 340, 346-47, 161 Ill.Dec. 129, 578 N.E.2d 256 (1991). Cushing, however, has cited no authority that allows this court to remand a case to a particular judge. More importantly, as defendants note, Cushing has not alleged any bias on the part of Judge Haddad. Therefore, although we remand this case, we express no opinion as to whether it should be reassigned to Judge Haddad, Judge Zwick, or another judge. The assignment should be determined by the circuit court. That said, Judge Maddux should not make the reassignment decision in view of his prior acknowledgment of his conflict, i.e., that Novoselsky was his counsel.
¶ 372 Since we have determined that there was no valid settlement agreement and are remanding this matter, we next address Cushing's argument that Judge Haddad improperly sanctioned Cristina for failing to give a deposition by dismissing her claims with prejudice. Cushing notes that Judge Haddad, after talking with Cristina, found her competent to testify. In a June 23, 2010 memorandum order, Judge Haddad noted that, on April 7, 2010, he "met with Cristina in camera to assure her that the court would personally preside over her deposition to protect her rights." Judge Haddad further stated:
¶ 373 Defendants assert that the court had sufficient knowledge and experience to determine that Cristina was able to testify. In support of their argument, defendants cite Harris Trust & Savings Bank v. Otis Elevator Co., 297 Ill.App.3d 383, 388, 231 Ill.Dec. 401, 696 N.E.2d 697 (1998). As the Harris court explained:
Cushing now argues, however, that Cristina's "competency" was not at issue. Instead, "[t]he question was whether the trial court could substitute its own judgment for that of professionals who concluded that testifying at deposition and reliving the trauma of her mother's death would revest Cristina with the original trauma and cause her further emotional damage." Cushing asserts that the answer is "no." Citing In Interest of Ashley K., 212 Ill.App.3d 849, 890, 156 Ill.Dec. 925, 571 N.E.2d 905 (1991), Cushing notes that a circuit court "cannot second-guess medical experts."
¶ 374 Defendants challenge the relevancy of the medical opinions in the instant case. They note that the "lack of a recent examination" was the problem with the evaluations of four of the medical professionals. As Cushing notes, however, in 2008, Judge Zwick ordered that Cristina be evaluated by Dr. Leventhal to see if she should be deposed. Although GAL Ammendola attempted to arrange the evaluation, her efforts were thwarted by attorney Novoselsky, Klein, and the Zvuncas. Therefore, at a minimum, the trial court should have granted the requests of probate-appointed GAL Douglass that Cristina be re-examined by a professional before ordering her deposition to determine if it might harm her.
¶ 375 Defendants also assert that Dr. Leventhal's expert opinion was not relevant because he did not conduct any examination of Cristina. They also contend that the letters from Cristina's treating Romanian clinical psychologist were properly ignored because he was legally incompetent to testify and, therefore, his opinion was "meaningless."
¶ 376 As Cushing notes, when Judge Haddad did address Cristina's health, rather than look to the medical professionals to determine whether a deposition would harm Cristina, he asked Cairo for his opinion. It is not entirely clear from the record whether Judge Haddad was aware of Dr. Leventhal's opinion that Cristina's testifying could cause revestment and lead to further emotional damage. We also cannot determine if Judge Haddad knew of those concerns on the part of GAL Ammendola and Judge Zwick. There is no indication in the record that GAL Gubbins was aware, or informed Judge Haddad, of the concern regarding revestment. In any event, a judge may not substitute his opinion for the judgment of medical professionals without any medical evidence to contradict those professionals. See In re B.D., 321 Ill.App.3d 161, 165, 254 Ill.Dec. 65, 746 N.E.2d 822 (2001).
¶ 377 Judge Haddad was confronted with the immense task of trying to evaluate all of the proceedings, compounded by the actions of some of the attorneys who obfuscated the issues in this case. The request for a current medical evaluation of Cristina prior to deciding whether she would be unduly harmed by testifying was an eminently reasonable one. Dismissing Cristina's emotional distress claims with prejudice was too harsh a sanction under the facts of this case with all of its procedural irregularities. Therefore, we vacate the order of July 7, 2010, granting Motor Coach's motion to bar Cristina from testifying
¶ 378 Cushing has also argued that the trial court's distribution of fees and costs was improper: (1) without evaluations of the fee submissions for correctness or benefit to the estate or minor; (2) where the evidence showed that the distribution was not related to the work performed and the results achieved; and (3) where the fee petitions were not made available to the administrator or other parties. In view of our decision to vacate the final order in this case and remand the matter for further proceedings, any discussion of fees would be premature.
¶ 380 In accordance with the foregoing: (1) we vacate the September 24, 2010 and October 1, 2010 orders of the circuit court of Cook County; (2) we vacate the July 7, 2010 order granting Motor Coach's motion to bar Cristina from testifying as to any claims pending before the court and to dismiss with prejudice all claims for negligent infliction of emotional distress on behalf of Cristina, and also vacate the September 1, 2010 order finding Motor Coach's offer of $90,000 to be made in good faith, fair and reasonable, and in the best interest of the minor, Cristina; (3) we vacate the June 10, 2010 order finding Greyhound's offer of $2,090,000 to be made in good faith, fair and reasonable, and in the best interest of the minor, Cristina; (4) we vacate the September 22, 2009 order that amended the caption to read "Estate of CRISTINA ZVUNCA, a minor, by her Guardian Ad Litem, DAVID J. GUBBINS and F. JOHN CUSHING, Administrator de bonis [non] of the Estate of CLAUDIA ZVUNCA, deceased"; (5) we vacate the September 8, 2009 order that removed attorneys Jeanine Stevens, Thomas Leahy, Peter Hoste, Thomas Clancy, the Clancy law firm, and the Leahy & Hoste law firm; (6) we vacate the August 27, 2009 order that granted the motion for substitution of judge from Judge Zwick; (7) we direct the clerk of the circuit court to amend the caption to reflect that Cristina Zvunca is a party
¶ 381 Vacated and remanded with directions.
Justices McBRIDE and HOWSE concurred in the judgment and opinion.
