NO. 5-96-0022
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
MALVIN WASHINGTON, Special ) Appeal from the
Administrator of the Estate ) Circuit Court of
of MAGNOLIA WASHINGTON, ) St. Clair County.
)
Plaintiff-Appellee, )
)
v. ) No. 92-L-1056
)
CASEYVILLE HEALTH CARE ASSOCIATION, )
INC., a corporation, d/b/a VIRGIL L. )
CALVERT CARE CENTER, ) Honorable
) Milton S. Wharton,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
PRESIDING JUSTICE HOPKINS delivered the opinion of the court:
Defendant, Caseyville Health Care Association, Inc., d/b/a
Virgil L. Calvert Care Center, appeals from that portion of the
trial court's order granting plaintiff's motion to enforce a
settlement agreement entered into between defendant and plaintiff,
Therman Washington (Therman) as special administrator of the estate
of Magnolia Washington (Magnolia). On appeal, defendant contends
that the trial court's order granting the motion to enforce was
erroneous because the court's jurisdiction was suspended at the
time it approved the settlement agreement, since Therman was
deceased at the time the settlement agreement was signed by
plaintiff's attorney (attorney Hammel) and attorney Hammel had no
authority to sign the agreement. We reluctantly agree and reverse
the trial court's order granting the motion to enforce the
settlement agreement. We also vacate the court's order approving
the settlement agreement. We additionally remand this cause for
further proceedings in accordance with this opinion.
I. FACTS
Essentially, the facts of this case, as alleged in the
pleadings and motions filed, are that Magnolia was a resident of
defendant nursing home on or about December 23, 1991. On December
25, 1991, it was discovered that she had bilateral fractures of her
legs. Subsequently, Therman, as guardian of the person and estate
of Magnolia, his mother, filed a complaint on December 21, 1992, in
which defendant was charged with negligence, with a violation of
the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 1992)),
and under a theory of res ipsa loquitur.
On June 28, 1995, attorney Hammel filed a motion for leave to
amend the complaint by interlineation, and in this motion, it was
stated that Magnolia died on July 3, 1994, and it was asked that
Therman, as special administrator of Magnolia's estate, be
substituted as plaintiff. The court entered an order that same day
allowing the motion and substituting Therman, as special adminis-
trator of Magnolia's estate, as plaintiff.
On August 29, 1995, the trial court entered an order in which
it was stated that the parties announced that the case was settled.
A letter in the record indicates that defendant accepted
plaintiff's offer to settle for $49,500 on August 28, 1995. At the
time of the entry of the order approving the settlement agreement,
attorney Hammel did not disclose to the court or to defendant that
Therman had died on August 22, 1995, a little less than a week
before the settlement agreement was entered into.
On September 28, 1995, attorney Hammel filed a notice of
hearing in which counsel stated he would present a motion to
substitute Malvin Washington (Malvin) as special administrator for
Magnolia's estate, in place of Therman, on October 10, 1995. In
correspondence sent by facsimile to defendant's counsel, attorney
Hammel sent a copy of a motion to substitute Malvin as special
administrator, a copy of an "Oath of Special Administrator," and a
copy of a document entitled "Special Administrator's Letter of
Direction and Engagement," which was signed by Malvin and attorney
Hammel. This correspondence to defendant's counsel is dated
September 26, 1995, but the signed documents transmitted with the
letter are dated August 30, 1995, the day after the court approved
the settlement agreement. The letter of direction and engagement
stated that Malvin authorized attorney Hammel to settle this case
for $49,500. There is nothing in the record indicating that the
hearing of October 10, 1995, was ever held.
On October 24, 1995, attorney Hammel filed a motion to enforce
the settlement agreement and for other relief. This motion also
sought to have quashed a subpoena and a subpoena duces tecum for
attorney Hammel and his files. Defendant filed an objection to
plaintiff's motion to enforce and to counsel's motions to quash
subpoenas. A hearing on the motions was held on November 6, 1995,
and on December 5, 1995, the trial court entered a written order in
which it granted the motion to enforce the settlement agreement,
granted attorney Hammel's motions to quash, and granted the motion
to substitute Malvin as special administrator of Magnolia's estate.
Defendant appeals this order.
II. ANALYSIS
Defendant contends that the trial court erred when it granted
plaintiff's motion to enforce the settlement agreement. Its
argument of this issue is: (a) that the court's jurisdiction was
suspended at the time it approved the settlement agreement and the
court could not proceed until a new special administrator was
appointed as a party plaintiff, (b) that the attorney-client
relationship between Therman and attorney Hammel terminated upon
Therman's death, which also terminated attorney Hammel's authority
to sign the settlement agreement, and (c) that at the time attorney
Hammel appeared before the court for approval of the settlement
agreement, he had an obligation to inform the court and defense
counsel that Therman had died. Defendant raises two additional
issues: (1) that the court erred in denying defendant a hearing on
attorney Hammel's motions to quash subpoenas, and (2) that the
trial court erred in granting attorney Hammel's motion to substi-
tute Malvin as special administrator of Magnolia's estate if the
order was entered nunc pro tunc.
We initially consider defendant's contention that the court's
jurisdiction was temporarily suspended until such time as there was
a new special administrator appointed in the case. We find we must
agree. It is axiomatic that for every suit, there must always be
a plaintiff, a defendant, and a court. Mitchell v. King, 187 Ill.
452 (1899). An attorney's employment and his authority is revoked
by the death of his client, so an attorney cannot proceed where he
does not represent a plaintiff or a defendant. Mitchell, 187 Ill.
452.
In the instant case, Therman died on August 22, 1995. At the
time attorney Hammel and defense counsel appeared before the court
to have the settlement agreement approved on August 28, 1995, there
was no plaintiff of record. Malvin may have signed papers as a
personal representative, but these were signed on August 30, 1995,
and there is nothing in the record to show that Malvin had been
appointed as Magnolia's special administrator even on that date.
Malvin's appointment as special administrator did not occur until
December 5, 1995. Thus, there was no plaintiff that Hammel
represented, since a personal representative is the only person
authorized to make decisions for an estate. Without a client,
attorney Hammel had no authority to proceed with the settlement
agreement after Therman's death, until such time as a new personal
representative was appointed. In re Marriage of Fredricksen, 159
Ill. App. 3d 743 (1987). Because there was no plaintiff, the
court's jurisdiction was suspended until a party plaintiff was
appointed, and the court's order approving the settlement agreement
was invalid.
This same conclusion would be reached applying simple agency
principles. Generally, an attorney is an agent of his client, even
though as to his physical activities he is an independent contrac-
tor. American Environmental, Inc. v. 3-J Co., 222 Ill. App. 3d 242
(1991). Under agency principles, the death of the principal
terminates the authority of the agent, even if the agent has no
notice of the principal's death. Restatement (Second) of Agency
§120 (1957). Because attorney Hammel was an agent of Therman, his
authority to act as Therman's agent ended at Therman's death.
In light of our foregoing ruling, we need not consider the
other arguments under defendant's first issue, for to do so would
be a useless act. However, with regard to defendant's claim that
attorney Hammel had an obligation to disclose the death of his
client, defendant appears to be alleging impropriety on the part of
attorney Hammel. Our reading of the record does not seem to
support this allegation. Attorney Hammel may not have had the
knowledge of his client's death at the time he appeared before the
court or even at the time he agreed to settle the case, for
Therman's death was on August 22, 1995, and the agreed settlement
was made on August 28, 1995, only six days later. In addition,
attorney Hammel did notify the court of Therman's death in a
reasonable time frame.
Further, with regard to defendant's second issue, that the
court erred in not granting it a hearing on attorney Hammel's
motions to quash subpoenas, we find there is no reason to address
this issue since the information needed to resolve the issue of
whether attorney Hammel had the requisite authority, i.e., the
dates when Therman died, when the death of Therman was made of
record, when the motion to substitute special administrator was
made and presented to the court, and when the settlement agreement
was entered into, was already in the record. We also note that
defendant does not cite to any relevant authority with regard to
this issue, in violation of Supreme Court Rule 341(e)(7) (155 Ill.
2d R. 341(e)(7)). Failure to cite relevant authority waives
consideration of the issue. Britt v. Federal Land Bank Ass'n of
St. Louis, 153 Ill. App. 3d 605 (1987).
Lastly, we find defendant's final issue, that the court erred
in entering its order appointing Malvin as special administrator
nunc pro tunc, to be without merit. There is nothing in the record
indicating that the court entered the order on December 5, 1995,
nunc pro tunc. At the hearing on November 6, 1995, the last words
spoken by the court were:
"Okay, so I see no problem with appointing him [Malvin]
today."
Similarly, in the court's written order, the court simply said that
it would allow the motion to substitute Malvin as special adminis-
trator. The court did not use the words nunc pro tunc in its oral
pronouncement substituting Malvin or in its written order.
Therefore, there is no reason to find that the court entered its
order substituting Malvin as special administrator nunc pro tunc.
Defendant does not challenge the appointment of Malvin but only
questions whether the order is retroactive. Thus, that portion of
the court's order substituting Malvin as special administrator
still stands.
III. CONCLUSION
For the foregoing reasons, that portion of the court's order
substituting Malvin as special administrator is affirmed. That
portion of the circuit court's order granting plaintiff's motion to
enforce settlement is reversed. Additionally, the order approving
the settlement agreement is vacated, and this cause is remanded for
further proceedings in accord with this decision.
Affirmed in part, reversed in part, and vacated in part; cause
remanded.
WELCH, J., and MAAG, J., concur.