Cushing v. Greyhound Lines, Inc.

Citation371 Ill.Dec. 941,991 N.E.2d 28,2013 IL App (1st) 103197
Decision Date21 June 2013
Docket NumberDocket No. 1–10–3197.
PartiesF. John CUSHING, Administrator de bonis non of the Estate of Claudia Zvunca, Deceased, Plaintiff–Appellant, v. GREYHOUND LINES, INC.; Motor Coach Industries, Inc.; and Motor Coach Industries International, Inc., Defendants–Appellees (Cristina Zvunca, Plaintiff).
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Scott G. Golinkin, of Law Offices of Scott G. Golinkin, of Chicago, for appellant.

Edward M. Kay, Paul Bozych, and Paul V. Esposito, all of Clausen Miller, P.C., of Chicago, for appellee Greyhound Lines, Inc.John W. Patton, Jr., and Michael G. Vranicar, both of Patton & Ryan LLC, of Chicago, for appellees Motor Coach Industries, Inc., and Motor Coach Industries International, Inc.

David J. Gubbins, of Chicago, guardian ad litem for Cristina Zvunca, Thomas A. Clancy and Jeanine L. Stevens, both of Clancy & Stevens, of Chicago, for Clancy & Stevens and Jeanine Stevens.

Michael W. Rathsack, of Chicago, for guardian ad litem Marina E. Ammendola.

David A. Novoselsky, of Novoselsky Law Offices, of Chicago, for appellee David A. Novoselsky.

OPINION

Justice EPSTEIN delivered the judgment of the court, with opinion.

[371 Ill.Dec. 946]¶ 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, 1 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.

¶ 2 BACKGROUND
¶ 3 Factual Background

¶ 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, 358 Ill.Dec. 736, 965 N.E.2d 1215)( Cushing I ), from the tragic, but relatively straightforward, facts regarding Claudia Zvunca's death, arose at least 13 lawsuits in various state and federal courts. Among these were legal malpractice suits and two wrongful death actions, proceeding simultaneously in Illinois and Colorado. This court has also had before it over 25 appeals related to this case, many of which were filed by Klein in his continuing attempt to intervene in this matter as the party entitled to represent “Cristina's” interests. In 2005, another panel of this court affirmed the trial court's decision to deny Greyhound's motion to stay the Illinois action. Marshall v. Motor Coach Industries International, Inc., No. 1–05–0701, 359 Ill.App.3d 1190, 328 Ill.Dec. 728, 904 N.E.2d 1238 (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, 367 Ill.App.3d 1083, 340 Ill.Dec. 860, 929 N.E.2d 164 (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, 2011 WL 5514059 (N.D.Ill. July 5, 2011) (unpublished memorandum opinion and order). We echo that sentiment. There, the federal court awarded sanctions against attorney David Novoselsky in favor of Cristina Zvunca and attorney Jeanine Stevens. The court explained that [c]ompletely untangling” that labyrinth was unnecessary for purposes of its ruling on the motions for sanctions. Id. The same was true here for the plethora of motions brought by the various parties, putative parties, and their attorneys that we have already ruled upon. The disposition of the instant appeal, however, does require significant additional untangling.

¶ 8 In Cushing I, we explained that the lengthy and somewhat confusing procedural history is due in part to the simultaneous existence of the two wrongful death actions based on the same death. Yet that is just one part of the “convoluted attorney-created procedural labyrinth” that we address below. We include much of the procedural background from Cushing I, which we have augmented, revised and updated, by reviewing the 105 volumes of record filed in this appeal and the law of the case (including our records from the three prior appeals decided by this court). We have also taken judicial notice of court pleadings and court orders to facilitate an understanding of the multiple issues now raised in this appeal.

¶ 9 In this opinion we include a quite lengthy procedural background. In addition to containing the history necessary for an understanding of the legal issues raised in this appeal, we have included additional history for other purposes. First, this procedural background will provide this court with a reference for related appeals now filed in this matter and not yet ready for disposition, as well as other matters that should arise in the future. More importantly, we believe that it provides a contextual framework for the trial court upon remand, as well as the Attorney Registration and Disciplinary Commission (ARDC). We are mindful that the length of this opinion creates burdens for the reader and for that we apologize.

¶ 10 First Complaint Filed in Cook County (No. 02 L 5584) is Removed to Federal Court (Colorado Action)

¶ 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...

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