Robison v. Orthotic & Prosthetic Lab, Inc. ( 2015 )

NOTICE
2015 IL App (5th) 140079Decision filed 02/04/15. The
text of this decision may be NO. 5-14-0079
changed or corrected prior to
the filing of a Petition for
Rehearing or the disposition of IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
RANDY ROBISON, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 08-L-601
)
ORTHOTIC & PROSTHETIC LAB, INC., ) Honorable
) Vincent J. Lopinot,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
PRESIDING JUSTICE CATES delivered the judgment of the court, with opinion.
Justices Chapman and Schwarm concurred in the judgment and opinion.
OPINION
¶1 The defendant, Orthotic & Prosthetic Lab, Inc., appeals from an order of the
circuit court granting a motion to enforce a settlement agreement in a product liability
action. The defendant contends that the settlement agreement is invalid because the
attorneys who purportedly represented the plaintiff during settlement negotiations lacked
the authority to negotiate a settlement where the plaintiff had died and a proper
representative of the estate had not been substituted as the party plaintiff. The defendant
also contends that the settlement agreement is invalid because the attorneys who
purportedly represented the plaintiff during settlement negotiations failed to disclose the
1
material fact that the plaintiff had died eight months prior to the commencement of the
negotiations. For the reasons that follow, we vacate the order granting the motion to
enforce the settlement and remand the cause for further proceedings.
¶2 On November 24, 2008, the plaintiff, Randy Robison, through his attorneys,
Crowder & Scoggins, Ltd. (the Crowder firm), filed a product liability action in the
circuit court of St. Clair County against the defendant, Orthotic & Prosthetic Lab, Inc.
The plaintiff alleged that he suffered serious injuries when a prosthesis, which was
designed, manufactured, and sold by the defendant, failed while he was using it for its
intended purposes. He sought damages for personal injuries, pain and suffering, and past
and future medical expenses. The defendant, through its attorneys, Greensfelder, Hemker
& Gale, P.C. (the Greensfelder firm), appeared, and the case proceeded on the usual path
with motions, discovery, and disclosures of expert witnesses. In March 2013, the trial
court noted that there had been little activity in the case between December 2012 and
March 2013. The court also scheduled a status conference for April 29, 2013. The status
conference was continued and rescheduled for July 1, 2013. The attorneys of record
appeared on that date, and the court scheduled the case for a trial in October 2013.
¶3 In September 2013, the attorneys of record, James Smith, an attorney with the
Greensfelder firm, and Anthony Gilbreth, an attorney with the Crowder firm, began
settlement negotiations via email, and the email communications are a part of the record.
On September 19, 2013, Mr. Smith emailed a final offer to settle the case for a sum
certain to Mr. Gilbreth. In an email dated September 24, 2013, Mr. Gilbreth provided the
following response: "My client has instructed me to accept [amount redacted] in full and
2
final settlement of this matter. Please provide an appropriate release and I will present it
to my client for review and approval."
¶4 On October 24, 2013, the court was notified that a settlement had been reached,
and that the settlement documents were being drafted. The case was continued pending
the execution of the settlement documents.
¶5 On November 7, 2013, Mr. Smith tendered a settlement agreement and a general
release to Mr. Gilbreth. On Friday, November 15, 2013, Mr. Gilbreth sent an email to
Mr. Smith and attached an amended version of the proposed release. The email stated, in
part, as follows:
"I also attach a Suggestion of Death and Order substituting Randy's son, Matthew,
as Plaintiff in this matter. As you may already know, Randy passed away, and his
son was appointed Administrator of his Estate in August. So long as you have no
objection to Matt being substituted as Plaintiff, I can simply have the Order
entered next time I am in Belleville."
It was via the email of November 15, 2013, that the defendant and its attorneys first
learned that the plaintiff had died and that the plaintiff's son, Matthew Robison, had been
appointed as the personal representative of his estate.
¶6 On Monday, November 18, 2013, Mr. Smith emailed Mr. Gilbreth regarding the
failure to disclose the fact of Randy Robison's death. Mr. Smith asked Mr. Gilbreth
whether the failure to disclose the fact of the plaintiff's death was intentional or an
"unfortunate oversight." He also asked whether Mr. Gilbreth considered the death of the
plaintiff to be a material fact in the context of settlement discussions in a personal injury
3
case. In reply, Mr. Gilbreth stated that he and his office had researched the issue and
determined that he had no affirmative duty to disclose the information because it was
against his clients' interests and he had a duty to protect his clients' interests within the
bounds of the rules of professional responsibility. On November 19, 2013, Mr. Smith
advised Mr. Gilbreth that the defendant would not consent to the substitution of the
plaintiff. He further advised that the defendant did not believe that the settlement was
valid.
¶7 On December 30, 2013, Matthew Robison, personal representative of the estate of
Randy Robison (the personal representative), by his attorneys of the Crowder firm, filed a
motion to substitute plaintiff and a motion to enforce settlement in the product liability
case. In the motion to substitute plaintiff, the personal representative sought to be
substituted as the party plaintiff, noting that the plaintiff, Randy Robison, died on January
20, 2013; that the cause of action survives; and that the personal representative of the
probate estate of Randy Robison had been appointed by the circuit court in St. Louis
County, Missouri, on August 27, 2013.
¶8 In the motion to enforce settlement, the personal representative asserted that the
plaintiff had accepted the defendant's offer of settlement on September 24, 2013; that the
defendant tendered a settlement agreement and a release on November 7, 2013; that
counsel for the plaintiff informed the defendant on November 15, 2013, that the plaintiff
had died and that the personal representative of the plaintiff's probate estate would move
to be substituted as the plaintiff for purposes of completing the settlement; and that on
November 19, 2013, the defendant's counsel advised that the defendant would not
4
consummate the settlement because the defendant was unaware, at the time of the
settlement, that the plaintiff was deceased. The personal representative claimed that
Randy Robison's death was not a proper basis for refusing to complete the settlement and
that the settlement agreement should be enforced.
¶9 The defendant filed a memorandum in opposition to the motion to enforce the
settlement. The defendant claimed that the settlement agreement was invalid because the
authority of the Crowder firm to represent the plaintiff in the product case terminated
upon the plaintiff's death, and because there was no plaintiff of record when the
settlement was negotiated. The defendant further argued that the settlement was invalid
because the death of the plaintiff was a material fact that had been concealed from the
defendant prior to and during settlement negotiations. The defendant attached the
petition for letters of administration seeking the appointment of Matthew Robison as
personal representative of Randy Robison's estate. The petition was filed in the circuit
court of St. Louis County, Missouri, on July 9, 2013, by Kathie Blackman Dudley, an
attorney with the Crowder firm. The defendant argued that the content of the petition
showed that Mr. Gilbreth had knowledge of the plaintiff's death at least two months
before settlement negotiations commenced.
¶ 10 The motions were called for hearing January 21, 2014. At the close of the hearing,
the trial court granted the motion to substitute the personal representative as the party
plaintiff and took the motion to enforce the settlement under advisement. The court
entered an order granting the motion to enforce the settlement on January 22, 2014.
5
¶ 11 On appeal, the defendant contends that the circuit court erred in granting the
motion to enforce the settlement. We agree.
¶ 12 In every suit, there must always be a plaintiff, a defendant, and a court. Mitchell v.
King, 187 Ill. 452, 459, 55 N.E. 637, 639 (1899). An attorney's employment and his
authority are revoked by the death of his client, and an attorney cannot proceed where he
does not represent a party to the action. Mitchell, 187 Ill. at 459, 55 N.E. at 639;
Washington v. Caseyville Health Care Ass'n, 284 Ill. App. 3d 97, 100, 672 N.E.2d 34, 36
(1996). Generally, the attorney-client relationship is terminated by the death of the client,
and thereafter, the authority of the attorney to represent the interests of a deceased client
must come from the personal representatives of the decedent. Washington, 284 Ill. App.
3d at 101, 672 N.E.2d at 36; In re Marriage of Fredricksen, 159 Ill. App. 3d 743, 512
N.E.2d 1080 (1987).
¶ 13 In this case, the plaintiff, Randy Robison, died on January 20, 2013. Upon Randy
Robison's death, the product liability action was without a plaintiff, and the Crowder
firm's authority to act on behalf of Randy Robison terminated. Under our procedural
rules, this cause of action is one that survives the death of a party, and the personal
representative of the decedent's estate is permitted to file a motion for substitution. See
735 ILCS 5/2-1008(b) (West 2002). The motion for substitution is to be filed within 90
days after the party's death is suggested of record, and the date of the actual death is not a
factor. See Ferak v. Elgin, Joliet & Eastern Ry. Co., 55 Ill. 2d 596, 600, 304 N.E.2d 619,
621 (1973). In this case, the motion to substitute plaintiff was timely filed on December
30, 2013, and the order authorizing the substitution of the personal representative as the
6
party plaintiff was entered on January 21, 2014. Thus, from January 20, 2013, to January
21, 2014, the product liability action was without a plaintiff, and the Crowder firm did
not represent a party to the action.
¶ 14 Settlement negotiations commenced in September 2013, and an agreement was
ostensibly reached on September 24, 2013. The defendant, however, had no knowledge
about the plaintiff's death or the appointment of a personal representative throughout the
period of settlement negotiations. Mr. Gilbreth acknowledged that he did not disclose
these facts to the defendant until November 15, 2013, weeks after the settlement was
reached and months after the plaintiff's death. Mr. Gilbreth also acknowledged that the
disclosure of the plaintiff's death would have adversely impacted the settlement value of
the case. He stated that he believed that the decision to withhold the information was in
his clients' best interest and was in keeping with the rules of professional responsibility.
We strongly disagree. We find that the arguments expressed by Mr. Gilbreth are
specious and incredible, and we are concerned about his professional judgment in this
case. In failing to disclose the fact of the plaintiff's death, Mr. Gilbreth intentionally
concealed a material fact that would have reduced the overall value of the claim for
damages. In addition, and equally troubling, Mr. Gilbreth led the defendant to believe
that he had authority to negotiate a settlement of the litigation on behalf of the party
plaintiff, when the action was without a plaintiff as the plaintiff had died and a
representative had not been substituted. Given Mr. Gilbreth's intentional
misrepresentations and material omissions prior to and during the settlement negotiations,
we conclude that the settlement agreement is invalid and unenforceable, and that the trial
7
court erred in granting the motion to enforce it. Accordingly, we hereby vacate the order
granting the motion to enforce settlement and remand the cause to the circuit court for
further proceedings.
¶ 15 Finally, we believe that we have a profound responsibility to comment on the
conduct of the attorneys in this case. Lawyers who are admitted to practice in Illinois,
and those who are not admitted but provide legal services within this jurisdiction, are
subject to the Illinois Rules of Professional Conduct of 2010 (RPC). Ill. R. Prof. Conduct
(2010) R. 8.5 (eff. Jan. 1, 2010). Rule 8.4(c) of the RPC states that it is professional
misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation. Ill. R. Prof. Conduct (2010) R. 8.4(c) (eff. Jan. 1, 2010). Rule 8.3
requires a lawyer to report unprivileged knowledge of misconduct involving fraud,
dishonesty, or deceit, or misrepresentation by another lawyer to the Illinois Attorney
Registration and Disciplinary Commission (ARDC). See Ill. R. Prof. Conduct (2010) R.
8.3 (eff. Jan. 1 2010); In re Himmel, 125 Ill. 2d 531, 539, 533 N.E.2d 790, 793 (1988).
¶ 16 In this case, we believe that the material omissions and misrepresentations made
by Mr. Gilbreth, which were detailed earlier in this decision, constitute serious violations
of Rule 8.4. We also believe that defense counsel possessed sufficient knowledge to
trigger a duty to report Mr. Gilbreth's misconduct to the ARDC, and that the failure to
report the misconduct constitutes a potential violation of Rule 8.3. See Himmel, 125 Ill.
2d 540-43, 533 N.E.2d at 793-94. Therefore, we will direct the clerk of this court to
transmit a copy of this opinion to the Attorney Registration and Disciplinary Commission
for its consideration of the actions of the attorneys in this case. While we bring to light
8
potential violations of the rules of professional conduct by Mr. Gilbreth and Mr. Smith,
we express no opinion as to the merits of any charges that may be brought against them
in relation to those matters. Disciplinary proceedings and sanctions for unprofessional
conduct rest exclusively within the inherent authority of our supreme court. In re Harris,
93 Ill. 2d 285, 291, 443 N.E.2d 557, 559 (1982). We intend that this case will serve as a
reminder that the reporting obligations under our rules of professional conduct, though
weighty and unpleasant, are influenced by a profound desire to maintain the integrity of
our legal profession, to further the ends of justice, and to protect the public. Himmel, 125
Ill. 2d at 544, 533 N.E.2d at 795.
¶ 17 For the reasons stated, we hereby vacate the order of the circuit court granting the
motion to enforce the settlement, and we remand this case to the circuit court for further
proceedings. We further direct the clerk of this court to transmit a copy of this opinion to
the Attorney Registration and Disciplinary Commission for its consideration of the
actions of the attorneys in this case.
¶ 18 Order vacated; cause remanded.
9
2015 IL App (5th) 140079NO. 5-14-0079
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
RANDY ROBISON, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 08-L-601
)
ORTHOTIC & PROSTHETIC LAB, INC., ) Honorable
) Vincent J. Lopinot,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
Opinion Filed: February 4, 2015
________________________________________________________________________
Justices: Honorable Judy L. Cates, P.J.
Honorable Melissa A. Chapman, J., and
Honorable S. Gene Schwarm, J.,
Concur
________________________________________________________________________
Attorney James L. Smith, Kamykowski, Gavin & Smith, PC, 287 North
for Lindbergh Blvd., St. Louis, MO 63141
Appellant
________________________________________________________________________
Attorneys Mark C. Scoggins, Clay B. St. Clair, Anthony P. Gilbreth, Crowder
for & Scoggins, Ltd., 121 West Legion Avenue, P.O. Box 167,
Appellee Columbia, IL 62236
________________________________________________________________________