Appeal from the Circuit Court of Cook County No. 07 L 3391 No. 09 L 10417 Honorable William H. Haddad Daniel M. Locallo (retired) Judges Presiding.
The opinion of the court was delivered by: Justice Epstein
JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Justices McBride and Howse concurred in the judgment and 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,*fn1 the June 10, 2010 order approving a settlement with defendant, Greyhound Lines, Inc. (Greyhound), and the September 1, 2010 order approving a settlement with defendants Motor Coach Industries, Inc., and Motor Coach Industries International, Inc. (collectively, Motor Coach). For the reasons that follow, we vacate and remand with directions.
¶ 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.
¶ 5 Procedural Background
¶ 6 As we noted in an earlier opinion in this case (Cushing v. Greyhound Lines, Inc., 2012 IL App (1st) 100768) (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 (2005) (unpublished order under Supreme Court Rule 23). In 2006, the same panel affirmed the trial court's denial of Greyhound and Motor Coach's (collectively, defendants') forum non conveniens motion. Cushing v. Greyhound Lines, Inc., No. 1-05-1463 (2006) (unpublished order under Supreme Court Rule 23). Most recently, in Cushing I, this court held that the trial court had erred in appointing a "special" administrator where Cushing had already been appointed as the administrator.
¶ 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 (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.
¶ 10 First Complaint Filed in Cook County (No. 02 L 5584) is Removed to Federal Court
¶ 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 and sought wrongful death damages for both 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 and it was never challenged by Greyhound. Instead, on May 31, 2002, Greyhound 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. On November 12, 2002, Greyhound filed its answer to Klein's complaint. On December 6, 2002, Klein filed a motion for voluntary dismissal of the action without prejudice, which Greyhound opposed. The court denied Klein's motion because Greyhound had already answered the complaint and there was no stipulation to dismiss the case. The deadline for amending pleadings and adding parties was set for January 6, 2003.
¶ 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.
¶ 14 First Probate Case (No. 03 P 8718)
¶ 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.
¶ 16 Greyhound Opposes Klein's Attempt to Add Motor Coach as a Defendant in Colorado Case
¶ 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.
¶ 18 Second Complaint Filed in Cook County (No. 04 L 497)
¶ 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.
¶ 20 Colorado Court Denies Klein's Motion to Add Motor Coach as a Defendant
¶ 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.
¶ 22 Amended Complaint Filed in Cook County Case (No. 04 L 497)
¶ 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.
¶ 24 Klein Discharges the Cogan Firm and Retains Clancy & Stevens
¶ 25 On April 27, 2004, Klein signed a legal services agreement with the law firm of Clancy & Stevens (the Clancy firm). The Cogan firm withdrew after being discharged by Klein.
¶ 26 Greyhound and Tatum Move to Dismiss Complaint
Filed in Cook County (No. 04 L 497)
¶ 27 On May 13, 2004, Greyhound and Tatum filed a motion to dismiss in case No. 04 L 497.
¶ 28 Second Complaint Filed in Cook County (No. 04 L 497) is Voluntarily Dismissed
¶ 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.
¶ 30 Third Complaint Filed in Cook County
(No. 04 L 10431, Later Renumbered as No. 07 L 3391)
¶ 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.
¶ 32 Colorado Court Denies Klein's Motion to Transfer
Colorado Action Back to Illinois
¶ 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 to "issue an advisory ruling on the effects of a recovery in this case as to entitlement to wrongful death proceeds."
¶ 35 Greyhound Seeks Dismissal or Stay of Illinois Action as Duplicative of Colorado Action And Files Appeal (No. 1-05-0701)
¶ 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.
¶ 37 Colorado Court Decides Illinois Action Should Take Precedence
¶ 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:
"[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.)
¶ 39 Ammendola and Cushing Appointed in Underlying Action
¶ 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 September 27, 2005, pursuant to Klein's motion, Cushing's status was changed from an independent administrator to a supervised administrator.
¶ 41 Cristina Resides With Stevens
¶ 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.
¶ 43 This Court Affirms Denial of Greyhound's Motion to Stay Illinois Action
¶ 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:
"[W]e cannot find the sort of privity between the parties that would imply the substantial similarity necessary to justify a stay under section [2-]619(a)(3). Following the decedent's demise, Klein and [Cristina] are legally strangers. Klein is not [Cristina's] natural father, and he has not been appointed to act as her guardian. Although they undoubtably share an interest in obtaining as large a judgment as possible from defendant as the result of decedent's death, their interest may well diverge in other areas. For example, under Illinois law, [Cristina] may argue that she is entitled to a larger share of any wrongful death verdict because she has a greater 'percentage of dependency' than Klein. See 740 ILCS 180/2 (West 2004). At the very least, [Cristina] and Klein may disagree about whether Illinois or Colorado law should govern the proceeds of any wrongful death claim. Moreover, because [Cristina] claims damages individually as the result of negligent infliction of emotion [sic] distress, she and Klein may disagree about how a potential settlement with defendant should be attributed [sic] between the wrongful death and negligent infliction claims. We cannot conclude that two parties with potentially divergent interests are substantially the same party within the meaning of section [2-]619(a)(3), even if, as defendant argues, the parties continue to exhibit a close personal relationship." Marshall v. Motor Coach Industries International, Inc., No. 1-05-0701 (2005) (unpublished order under Supreme Court Rule 23).
¶ 47 Greyhound and Motor Coach Appeal Denial of Their Forum Non Conveniens Motion
¶ 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 (2006) (unpublished order under Supreme Court Rule 23).
¶ 49 Klein Files Legal Malpractice Suit (No. 07 L 2063)
¶ 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.
¶ 51 Klein Attempts to Remove Cushing and Intervene in the Illinois Action
¶ 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.
¶ 53 Greyhound Seeks to Depose and Remove Stevens
¶ 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.
¶ 55 Greyhound Moves to Compel Cristina's Deposition
¶ 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.
¶ 57 July 11, 2007 Hearing
¶ 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.
¶ 61 Hearing of July 17, 2007 Regarding Cristina's Deposition and GAL Ammendola's Role
¶ 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 (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:
"So the GAL's function in this court has more distance than it might in [an]other circumstance. This isn't a situation where a settlement offer is on the table and I brought in the GAL for a recommendation. This is a situation where the representation was not solidified because [of] the nature of the litigation and I brought in the GAL and I appointed her to look after the minor's interest. In that point we have an advocacy relationship."
¶ 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.
¶ 64 Attempted Settlement of Colorado Action in July 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."
¶ 67 GAL Ammendola Seeks Opinion From Dr. Bennett Leventhal
¶ 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.
¶ 69 GAL Ammendola Seeks Klein's Cooperation in Obtaining Cristina's Medical Evaluation
¶ 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.
¶ 71 Klein Seeks Guardianship of Cristina in Second Probate Case (No. 07 P 7929)
¶ 72 Meanwhile, on November 8, 2007, Klein, pro se, filed a petition in the probate division for guardianship of Cristina.
¶ 73 Klein's Attorney in Colorado Action Attempts to Intervene in Underlying Action
¶ 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.
¶ 75 Klein Retains Attorney David Novoselsky
¶ 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.
¶ 78 Novoselsky Assists Klein in First Probate Case (No. 03 P 8718) and in Underlying Action
¶ 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 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.
¶ 82 Novoselsky Seeks Substitution of Judge Zwick
¶ 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.
¶ 84 Dr. Bennett Leventhal's Deposition
¶ 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 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, made things much worse, and made it difficult for her at a level that could basically have been a reinjury. Stevens asked Dr. Leventhal whether "[r]ecognizing that Cristina has not had any therapy since June of 2006 and assuming that this case goes to trial this summer without Cristina having any additional therapy," it would be his opinion to a reasonable degree of medical certainty that Cristina "could not testify at the trial about the events surrounding her mother's death." Dr. Leventhal opined: "[B]ased on the information that I have available, which is substantially more than what I had at the time [he wrote the September 6, 2007 letter concluding that he did not think it was appropriate for Cristina to give a deposition], I think that my opinion would stand the same for testimony [at trial] as it would have for deposition."
¶ 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.
¶ 87 GAL Ammendola Opposes Klein's Attempt to be Appointed Cristina's Plenary Guardian;
¶ 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 contention that the Colorado action was irrelevant, GAL Ammendola argued that the issues pertaining to the out-of-state Colorado lawyer directly impacted the best interests of the minor. She also explained that she was the person who had hired Dr. Leventhal to advise her so that she could advise the court. She noted that there were issues beyond that of whether the minor could testify. Regarding the issue of the court talking to the minor, GAL Ammendola stated: "Nobody has questioned the minor, not the Court -- because the Court knew enough about the case to ask for assistance from an expert before the Court embarked on questioning the minor, her asking me to question the minor about those issues that are sensitive to this minor. So it is not correct that we are only interested in whether or not she can testify, because there are other concomitant issues regarding this minor's injuries that the Court was interested in."
¶ 91 Judge McGury allowed GAL Ammendola time to respond and set a briefing schedule and hearing date.
¶ 92 Judge Zwick Denies Klein's Motion to Intervene
¶ 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.
¶ 95 Status Hearing of June 5, 2008
¶ 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."
¶ 97 Conflict Arises Between Novoselsky and GAL Ammendola
¶ 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 he planned to present to Judge McGury in the probate division.
Novoselsky stated that "any effort by [GAL Ammendola] or anyone else to physically take control of this child and take her to anywhere -- let alone to appear before a psychiatrist -- would be kidnapping." He also stated that "[n]either [GAL Ammendola] or Judge Zwick can order her to be taken anywhere other than by requesting that her personal guardian do so." 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.
¶ 99 Leonard Malkin Appointed Guardian Ad Litem in the Probate Case (No. 07 P 7929)
¶ 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.
¶ 101 Novoselsky's Continued Involvement in the Underlying Action
¶ 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."
¶ 103 Judge Zwick Grants Greyhound Leave to File Motion Barring Cristina's Testimony
¶ 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.
¶ 105 GAL Malkin Files Report Under Seal
¶ 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.
¶ 107 July 18, 2008 Hearing Before Judge McGury
¶ 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 because she did not "have any mental problems" and asked Judge McGury "[w]hy can't Ms. Ammendola leave us alone?"
¶ 109 Klein is Appointed Cristina's Guardian and "Cristina's Estate" is Opened (No. 07 P 7929)
¶ 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 (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."
¶ 111 Novoselsky's Continued Involvement in the Underlying Action
¶ 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.
¶ 113 Judge Zwick Denies Defendants' Motion to Disqualify Stevens
¶ 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."
¶ 115 Cushing and GAL Ammendola Retain Additional Counsel
¶ 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.
¶ 117 Novoselsky's Continued Involvement in 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.
¶ 122 Greyhound Renews Its Effort to Remove Stevens in the Underlying Action ¶ 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.
¶ 124 Novoselsky Files Action in Federal Court (No. 08 C 4507)
¶ 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 4507). The complaint also contained allegations of fraud against Cushing, the Clancy firm, Stevens, and guardian ad litem Marina Ammendola, as well as allegations against Stevens for physical and emotional abuse of Cristina.
¶ 126 Judge Zwick Denies Greyhound's Motion to Reconsider
¶ 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:
"This instant action, on behalf of the estate and the minor child, was
filed in 2004 by Clancy & Stevens. The parties have engaged in five
years of aggressive litigation that has included transnational and
international discovery and depositions. All of these depositions were
undertaken by Clancy & Stevens. Documents, which are the subject of
production requests, motions and privilege orders, number in the
thousands, and plaintiffs' counsel have exhibited to both court and
opposing counsel an encyclopedic knowledge of this discovery. The case
has been the subject of two appellate court decisions decided
favorably on behalf of the plaintiffs ***. As far as the standards of
effective administration of justice, there are no complaints, from
Greyhound or any other source, that Clancy & Stevens are inept, or
that this firm, or [its] counsel, have failed in this litigation to
execute their professional responsibility to the estate or the minor
child. On the contrary, the record exhibits that Clancy & Stevens and
Ms. Stevens have effectively prosecuted this case on behalf of their
clients. To remove plaintiff's counsel from continued representation,
based on the reasons advanced by defendant, would deny these
plaintiffs of the knowledge and experience of their attorneys. And
that would be, not only an ineffective administration by this
¶ 128 Cushing, Stevens, and Ammendola Seek Dismissal of Federal Action (No. 08 C 4507)
¶ 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]" and that the lawsuit was filed without their knowledge by Novoselsky.
¶ 131 In its June 4, 2009 order, the federal court stated:
"The only 'right' the Plaintiffs have is the right to petition the Circuit Court to have [GAL Ammendola and Cushing] removed pursuant to 755 ILCS 5/23--3. If the petition is disputed, it is necessary to have a hearing at which the petitioners have the burden of proof. [Citation.] Furthermore, the validity of an appointment cannot be raised by collateral attack which is what the Plaintiffs appear to be attempting to do with this suit. [Citation.] The decision whether to hire or discharge an attorney is within the exclusive authority of the administrator and the guardian ad litem subject, of course, to the review and approval of the Circuit Court. [Citation.] Furthermore, as officers of the court, attorneys who have entered their appearances in a court proceeding cannot simply walk away from a case. They must receive permission from the court to withdraw." (Emphasis added.) Zvunca v. Motor Coach Industries International, Inc., No. 08 C 4507, slip op. at 2-4 (N.D. Ill. June 4, 2009) (unpublished memorandum opinion and order). The case was dismissed for want of prosecution on October 22, 2009.
¶ 132 Novoselsky Files Action in State Court (No. 09 L 6397)
¶ 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.
¶ 134 Underlying Action is Assigned to Judge Daniel M. Locallo
¶ 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.*fn2
¶ 137 Hearing Before Judge Locallo on August 6, 2009
¶ 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 ...