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F. John Cushing, Administrator De Bonis Non of the v. Greyhound Lines

February 10, 2012

F. JOHN CUSHING, ADMINISTRATOR DE BONIS NON OF THE
ESTATE OF CLAUDIA ZVUNCA, DECEASED,
PLAINTIFF-APPELLANT
v.
GREYHOUND LINES, INC. AND MOTOR COACH INDUSTRIES INTERNATIONAL, INC., DEFENDANTS-APPELLANTS
(CRISTINA ZVUNCA, A MINOR, BY HER GUARDIAN AD LITEM, DAVID J. GUBBINS, PLAINTIFF; WESLEY JAY TATUM, DEFENDANT).



Appeal from the Circuit Court of Cook County No. 07 L 3391 (previously No. 04 L 10431) Honorable William H. Haddad, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Epstein

PRESIDING JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Justices McBride and Howse concurred in the judgment and opinion.

OPINION

¶ 1 F. John Cushing, administrator de bonis non of the estate of Claudia Zvunca, deceased, appeals from the January 28, 2010 order of the circuit court of Cook County appointing MB Financial Bank, N.A., as special administrator of the estate of Claudia Zvunca. For the following reasons, we vacate the order.

¶ 2 FACTUAL BACKGROUND

¶ 3 On January 15, 2002, Claudia Zvunca (decedent) was struck and killed by a Greyhound bus in Colorado. Her minor daughter, Cristina Zvunca (Cristina), who was eight years old at the time, witnessed the accident. Decedent's heirs were her husband, Tiberiu Klein, whom she had married in the fall of 2000, and Cristina. From these tragic, but relatively straightforward, facts arose 13 filed lawsuits, including legal malpractice suits, in various state and federal courts. In addition to the lawsuits, this matter has generated no fewer than 28 appeals filed in this court.

¶ 4 PROCEDURAL BACKGROUND

¶ 5 At the outset, we note that the subsequent lengthy and somewhat confusing procedural history is in part the result of the simultaneous existence of two wrongful death actions based on the same death -- the action underlying the instant appeal (Instant Illinois Action) and an action originally filed in Illinois, removed to federal court in Illinois, and transferred to federal court in Colorado (Colorado Action). Although we will confine our legal analysis to the narrow issue involved in this particular appeal, we believe that a comprehensive summary of the procedural background of this matter leading up to the removal of Cushing will provide context and allow for an enhanced understanding of the issue. Therefore, we have taken judicial notice of court records in Colorado and Illinois, including relevant pleadings and court orders. We have also reviewed the briefs filed in two prior interlocutory appeals (Nos. 1-05-0701 and 1-05-1463) involving the Instant Illinois Action (No. 04 L 10431, renumbered on April 3, 2007 as No. 07 L 3391). We express no opinion regarding the merits of the underlying wrongful death action or any of the related actions, and our legal analysis will be limited to the propriety of the trial court's order appointing a special administrator.

¶ 6 First Complaint Filed (No. 02 L 5584) and Removed to Federal Court (Colorado Action)

¶ 7 On May 3, 2002, Tiberiu 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 Tatum, only (No. 02 L 5584). Klein alleged in the complaint that he was Cristina's guardian and sought wrongful death damages both for himself and Cristina (paragraph 14 of the complaint alleged that both he and Cristina had "lost the companionship, love, [and] affection of their respective wife and mother"). Claudia had died intestate, however, and Klein had not been appointed representative of Claudia's estate. Neither had Klein been appointed special administrator. This deficiency was never addressed by an Illinois court, however, because Greyhound, on May 31, 2002, filed a notice of removal of that action to federal court based on diversity of citizenship. Greyhound then filed a forum non conveniens motion in federal court for the Northern District of Illinois, which was granted and the action was transferred to the District of Colorado. The law firm of Cogan, McNabola & Dolan, LLC (the Cogan firm) represented Klein in the Colorado Action.

¶ 8 On January 13, 2004, two days before the expiration of the statute of limitations, Klein filed a motion to amend his complaint to add as an additional defendant bus designer Motor Coach Industries International, Inc. (Motor Coach). (On January 15, 2004, as will be further discussed below, the Cogan firm filed an action in Illinois in the law division (No. 04 L 497).) On March 24, 2004, the Colorado court denied Klein's motion to amend his complaint to add Motor Coach. On April 15, 2005, the federal court denied defendants' motion to set a pretrial conference and jury trial and ruled that the action pending in Illinois took precedence over the action in Colorado.

¶ 9 First Probate Case (No. 03 P 8718)

¶ 10 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. Mr. Marshall was a paralegal in the Cogan firm. The probate division granted Klein's petition on November 14, 2003 and letters of office were issued. (In 2005, Cushing replaced Marshall.)

¶ 11 Second Complaint Filed (No. 04 L 497) and Voluntarily Dismissed

¶ 12 On January 15, 2004, the Cogan firm, on behalf of Marshall, filed a wrongful death and survival complaint in Cook County against Motor Coach (No. 04 L 497). On April 6, 2004, leave was granted to amend the complaint to add Greyhound and Tatum as defendants. On May 13, 2004, Greyhound and Tatum filed a motion to dismiss. The Cogan firm withdrew and the law firm of Clancy & Stevens (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, this action was voluntarily dismissed.

¶ 13 Third Complaint Filed (No. 04 L 10431, later renumbered as 07 L 3391)

(Instant Illinois Action)

¶ 14 On September 14, 2004, the Clancy firm filed the Instant Illinois 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 but 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 MCI. Count VIII, also brought by Paul Brent, on behalf of Cristina, alleged negligent infliction of emotional distress against Greyhound and Tatum.

¶ 15 Meanwhile, in the Colorado Action, in October 2004, 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. In the alternative, Klein sought a determination that Cristina's claim for damages was not at issue in the Colorado Action. On November 15, 2004, the Colorado court denied the motion to transfer, noting that the case had been pending for more than two years, was ready for trial, and that retransfer would be prejudicial to defendants. 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 Instant Illinois Action, the Colorado Action contained no counts regarding Cristina's emotional distress.) The court specifically refused to "issue an advisory ruling on the effects of a recovery in this case as to entitlement to wrongful death proceeds."

¶ 16 In November and December 2004, Greyhound filed several motions in the Instant 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.

¶ 17 Appeal No. 1-05-0701

¶ 18 On March 18, 2005, Greyhound filed an interlocutory appeal from the denial of its motion to stay the proceedings. Greyhound argued that the trial court should have stayed this 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.

¶ 19 Meanwhile, in the Colorado Action, on April 5, 2005, Greyhound filed a second motion to set pretrial conference and jury trial. On April 15, 2005, the federal court in Colorado entered an order stating, in relevant part: "[I]t appears that the action pending in Cook County, Illinois, in which Motorcoach Industries International, Inc., is an additional defendant on a product liability claim is going forward in the trial court and that the future of that litigation may be affected by appeals that are pending, including an appeal by Greyhound of the denial of its motion to stay the Cook County action and it appearing to this court that because Motorcoach Industries International, Inc., could not be joined in this civil action because it would destroy diversity jurisdiction which was the basis upon which Greyhound removed this case and caused it to be transferred from Cook County, Illinois, the case pending in Cook County, Illinois, should take precedence and it is therefore ordered that the second motion to set pretrial conference and jury trial is denied." (Emphasis added.)

¶ 20 While appeal No. 1-05-0701 was pending, the law division, on May 12, 2005, appointed Marina Ammendola as Cristina's guardian ad litem. Additionally, Marshall resigned as the independent administrator of Claudia's estate and, on May 13, 2005, the probate division appointed F. John Cushing as independent administrator de bonis non of decedent's estate in the probate case. On May 19, 2005, Cushing filed an amended complaint in the Instant Illinois Action.

¶ 21 In appeal No. 1-05-0701, the Clancy firm, on behalf of plaintiffs-appellees (i.e., Cushing, as administrator of Claudia's estate, and Cristina, a minor, by her next friend, Paul Brent), argued that the trial court correctly denied Greyhound's motion to stay the Illinois action. Plaintiffs also argued, inter alia, that the Instant 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 asserted that Cristina's damages, on her own behalf, were not at issue in Klein's 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. The Clancy firm argued that, even if the court should determine that the Colorado Action and the Instant Illinois 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 court order of April 15, 2005 in which the court in Colorado ruled that the Illinois action took precedence. The Clancy firm further noted that resolution of Klein's Colorado Action would not result in complete relief because Motor Coach could not be joined as a defendant, and it would deprive Cristina's recovery for her own injuries.

¶ 22 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." Greyhound also requested that the court strike plaintiffs' reference to the order entered on April 15, 2005, because it had not yet been entered and therefore had not been considered by the trial court when it had denied Greyhound's motion to stay.

¶ 23 On September 27, 2005, at Klein's request, the probate division terminated Cushing's independent administration and made Cushing a supervised administrator.

¶ 24 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 the trial court did not err in denying defendant's motion to stay the case because Klein and Cristina were not the "same party." The court also stated that there was no substantial similarity between the parties and noted that "Klein [was] not [Cristina's] natural father, and he [had] not been appointed to act as her guardian."

¶ 25 Appeal No. 1-05-1463

¶ 26 While appeal No. 1-05-0701 was still pending, Greyhound, along with Motor Coach, filed another interlocutory appeal, No. 1-05-1463, from the denial of its forum non conveniens motion. 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.

¶ 27 Klein Files Legal Malpractice Suit (No. 07 L 2063)

¶ 28 On February 23, 2007, Klein, pro se, filed a legal malpractice suit against various defendants including Cushing, Marshall, attorney Jeanine 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 on January 29, 2009.

¶ 29 Further Proceedings in the Trial Court Regarding the Instant Illinois Action

¶ 30 After Greyhound's unsuccessful interlocutory appeals in the Instant Illinois

Action, a mediation took place on June 28, 2007, pursuant to the parties' agreement. Plaintiffs' settlement demand was $23 million and they refused Greyhound's counteroffer.

On July 10, 2007, Greyhound filed a motion for sanctions for mediating in bad faith. The attorney who signed the motion on behalf of Greyhound was Brian A. Schroeder, which we note only because of a concern that has been raised regarding which party or parties he has represented in this matter. Remarkably, the record also contains filings on behalf of Cristina in which Mr. Schroeder is listed as counsel.

¶ 31 Second Probate Case (No. 07 P 7929)

¶ 32 On November 8, 2007, Klein, pro se, filed a petition in the probate division for guardianship of Cristina. In March 2008, Klein retained attorney David Novoselsky to assist him in his efforts. He was successful and, on July 18, 2008, Klein was appointed 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.

¶ 33 Attorney Novoselsky Assists Klein in First Probate Case (No. 03 P 8718)

¶ 34 After being retained by Klein, attorney Novoselsky also filed, on or about March 27, 2008, a petition in the first probate case involving Claudia's estate (No. 03 P 8718) to change Cushing's status from an independent administrator to a supervised administrator. To say that a dispute between Klein and attorney Novoselsky later arose would be an understatement. The discord between them has resulted in an avalanche of filings in the instant appeal, which were entirely irrelevant to the issue before this court and served only to unnecessarily complicate and delay the resolution of this appeal.

¶ 35 Appeal No. 1-09-0848

ΒΆ 36 On May 19, 2008, the Cogan firm filed a breach of contract action against Klein alleging that he failed to pay expenses incurred in connection with the wrongful death action that the firm brought on behalf of Claudia Zvunca (No. 08 L 5455). Court records indicate that attorney Novoselsky represented Klein. The trial court granted Klein's motion to dismiss, in which he asserted that the Cogan firm did not represent him personally and that Claudia's estate was the proper defendant. The Cogan firm appealed, and on June 18, 2010, another panel of ...


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