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The Estate of Perry C. Powell, A/K/A Perry Smith v. John C. Wunsch

March 29, 2013

THE ESTATE OF PERRY C. POWELL, A/K/A PERRY SMITH, JR., A DISABLED PERSON, BY ROBERT F. HARRIS, COOK COUNTY PUBLIC GUARDIAN,
PLAINTIFF-APPELLANT,
v.
JOHN C. WUNSCH, P.C., AN ILLINOIS PROFESSIONAL
CORPORATION; PHILLIPS LAW OFFICES, LTD., AN
ILLINOIS CORPORATION; JOHN C. WUNSCH, AN
INDIVIDUAL; JEREMY L. DERSHOW, AN INDIVIDUAL; JILL M. WEBB, AN INDIVIDUAL; AND LEONA SMITH, AN INDIVIDUAL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 10 L 9584 Honorable Kathy M. Flanagan, Judge Presiding.

The opinion of the court was delivered by: Justice Sterba

JUSTICE STERBA delivered the judgment of the court, with opinion. Justices Hyman and Pierce concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff-appellant estate of Perry C. Powell, a/k/a Perry Smith, Jr., appeals the dismissal of his legal malpractice counts against defendants-appellees John C. Wunsch, P.C., Phillips Law Offices, Ltd., John C. Wunsch, Jeremy L. Dershow and Jill M. Webb (hereinafter collectively referred to as defendants) pursuant to section 2-615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)), on the basis that he failed to sufficiently plead the duty and proximate cause elements of a legal malpractice cause of action. Powell is a disabled adult and the public guardian is bringing this legal malpractice action on his behalf. In the underlying legal proceeding that led to Powell's legal malpractice claims, the circuit court entered an order approving two settlements reached in that action. The amount allocated to Powell in the first settlement totaled $5,000 and totaled $118,091.34 in the second settlement. Powell asserts that the settlement amounts were not distributed through the probate court as required by section 2.1 of the Illinois Wrongful Death Act (Act) (740 ILCS 180/2.1 (West 2008)). Powell claims on appeal that the circuit court erred in dismissing his legal malpractice counts because defendants owed a duty to him, as a decedent's next of kin, even though he was not defendants' direct client. Powell also claims on appeal that he sufficiently pled the proximate cause element because if a guardian had been appointed to administer and distribute his settlement funds, then he would still have access to those funds. For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings.

¶ 2 BACKGROUND

¶ 3 When reviewing a circuit court's ruling on a section 2-615 motion to dismiss, this court must accept as true all well-pleaded facts. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009). The following facts are obtained from the pleadings contained in the record.

¶ 4 The circuit court adjudicated Powell disabled due to profound disability on April 25, 1997, and appointed his parents, Leona Smith and Perry Smith, to serve as co-guardians of his person, but they were not appointed to serve as a guardian of his estate. Perry died on April 11, 1999, from surgical complications. He was survived by his wife, Leona, and his two children, Powell and Emma Smith. On April 12, 1999, Leona executed an attorney-client agreement with the John C. Wunsch, P.C., for the purpose of bringing a wrongful death action against the medical providers who treated Perry before his death. Perry died intestate and his estate had no assets. Also, no petition for letters of office of Perry's estate were filed with the probate court.

¶ 5 On January 31, 2001, Leona filed a petition to appoint a special administratrix (petition for appointment) naming herself as the special administratrix of Perry's estate. The petition for appointment identified Leona, Powell and Emma as Perry's next of kin and stated that they were entitled to recover under the Act and the Illinois Survival Act (755 ILCS 5/27-6 (West 2010)). The circuit court approved the petition for appointment and appointed Leona as special administratrix of Perry's estate.

¶ 6 On January 31, 2001, John C. Wunsch, P.C., filed a complaint in the circuit court entitled "Leona Smith, Individually and as Special Administratrix of the Estate of Perry Smith v. Bradley Coolidge, M.D., et al." The complaint was amended on September 7, 2004, and included five counts under the Act, one count under the Illinois Survival Act and one count under the Rights of Married Persons Act (hereafter Family Expense Act) (750 ILCS 65/15 (West 2010)). On January 31, 2005, Leona filed an amended verified petition for settlement and distribution of wrongful death case (first settlement) seeking the circuit court's approval of a settlement reached with certain named defendants in the wrongful death action. After attorneys fees and costs, the amount distributable to Leona, as special administratrix, totaled $15,000. Leona, Emma and Powell were identified as Perry's surviving next of kin. The first settlement identified Powell as a disabled adult and Leona as his sole keeper and provider. Each of the next of kin was to receive $5,000 under this settlement. The circuit court entered an order of settlement and distribution of wrongful death case approving the first settlement. According to the order, Powell's settlement distribution of $5,000 was to be paid to Leona.

¶ 7 On October 15, 2005, John C. Wunsch, P.C., referred the action to Jill Webb, who was an attorney at the Phillips Law Offices, because the primary attorney at John C. Wunsch, P.C., who worked on the action disassociated with the firm and the remaining attorneys at John C. Wunsch, P.C., decided that they were unable to take the wrongful death action to trial. On that same day, Leona executed an attorney-client agreement with the Phillips Law Offices to continue litigating the underlying wrongful death action. On November 1, 2005, the Phillips Law Office, Webb, and John C. Wunsch, P.C., participated in settlement negotiations with the remaining defendants in the underlying wrongful death action and settled the underlying action for $350,000 (second settlement). On November 14, 2005, Leona, through the attorneys at the Phillips Law Offices, filed a petition to approve the second settlement and order distribution of the settlement funds. Leona, Emma and Powell were listed as Perry's heirs, and Powell was identified as Perry's son and having physical disabilities that prevented him from working outside the home, earning an independent living or living independently. On November 28, 2005, the circuit court entered an order approving the second settlement and distributing $118,091.35 to Leona and $118,091.34 to Powell. Emma waived her right to any of the second settlement proceeds.

¶ 8 In approximately 2008, Emma became concerned about Powell's hygiene and well-being after visiting him at Leona's home. On December 5, 2008, Emma petitioned the probate court to remove Leona as guardian of Powell's person, or to appoint her as co-guardian, because Leona become incapable of providing the necessary care to Powell This petition also asserted that the funds distributed to Powell from the second settlement were deposited into a joint bank account in Powell's and Leona's name. The petition further alleged that Powell's funds from the second settlement were not being expended toward his care.

¶ 9 On January 23, 2009, the probate court entered an order appointing James Dunneback as guardian ad litem for Powell. On February 2, 2009, Dunneback filed an emergency petition to appoint a temporary guardian of Powell's person and seeking to suspend Leona's authority as guardian. On June 9, 2009, the probate court entered an order removing Leona as Powell's guardian of his person and appointing Emma as the plenary guardian of Powell's person. On July 8, 2009, the probate court appointed the public guardian as plenary guardian of the estate of Powell.

¶ 10 The public guardian filed a complaint against defendants and filed an amended complaint, second amended complaint, third amended complaint and fourth amended complaint. The fourth amended complaint (complaint) included the following counts: (1) professional negligence against John C. Wunsch, P.C., John C. Wunsch, and Jeremy L. Dershow (Wunsch defendants); (2) professional negligence against the Phillips Law Offices, Ltd., Jill M. Webb, John C. Wunsch, P.C., and John C. Wunsch; (3) fraud against Leona; (4) breach of fiduciary duty against Leona; and (5) unjust enrichment against Leona.

ΒΆ 11 Wunsch defendants filed a section 2-619 motion to dismiss the complaint, an amended section 2-619 motion to dismiss the amended complaint, a section 2-615 motion to dismiss the second complaint, a section 2-615 motion to dismiss the third amended complaint and a section 2-615 motion to dismiss the fourth amended complaint. Phillips Law Offices and Webb (Phillips defendants) filed a section 2-615 motion to dismiss the complaint, a section 2-619 motion to dismiss the amended complaint, a section 2-615 motion to dismiss the second amended complaint, a section 2-615 motion to dismiss the third amended complaint and a section 2-615 motion to dismiss the fourth amended complaint. In both of the section 2-615 motions to dismiss filed by defendants, they argued that the ...


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