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Appellate Court Date: 2018.04.17
10:00:49 -05'00'
Epstein v. Davis, 2017 IL App (1st) 170605
Appellate Court DAVID A. EPSTEIN, Public Administrator of Cook County, as
Caption Independent Administrator of the Estate of Marshana Philpot-Willis,
Deceased, Plaintiff, v. PIXIE DAVIS, Individually and as Employee
and Agent of One Hope United, Inc., ONE HOPE UNITED, INC., and
LASHANA PHILPOT, Defendants (MARTELL WILLIS, JR.,
Petitioner-Appellant, v. CHARLES P. GOLBERT, Acting Public
Guardian of Cook County, as Guardian of Lamariana Philpot-Willis, a
Minor, Respondent-Appellee).
District & No. First District, Sixth Division
Docket No. 1-17-0605
Filed December 15, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 11-L-1160; the
Review Hon. Ronald F. Bartkowicz, Judge, presiding.
Judgment Affirmed.
Counsel on Law Offices of L. June Samuels, P.C., of Chicago (Laurie Samuels, of
Appeal counsel), for appellant.
Robert F. Harris, Public Guardian, of Chicago (Charles P. Golbert,
Kass A. Plain, and John David Jarrett, of counsel), for appellee.
Panel JUSTICE DELORT delivered the judgment of the court, with opinion.
Presiding Justice Hoffman and Justice Connors concurred in the
judgment and opinion.
OPINION
¶1 Seven-month-old Marshana Philpot-Willis died while her family participated in the “Intact
Family Services” program of defendant One Hope United, Inc. (One Hope United). The Cook
County public guardian1 filed a wrongful death case on behalf of Marshana’s estate to recover
damages against One Hope United; its employee, Pixie Davis; and Marshana’s mother,
Lashana Philpot. See generally Harris v. One Hope United, Inc., 2015 IL 117200. The estate
settled the wrongful death action with One Hope United and Davis for $750,000. Following a
hearing, the circuit court allocated 60% of the proceeds to Marshana’s father,
petitioner-appellant Martell Willis, Jr., and 40% to Marshana’s sister, Lamariana
Philpot-Willis. Willis appeals, contending that the court improperly denied certain motions he
filed and that he should receive 100% of the settlement. We affirm.
¶2 BACKGROUND
¶3 Martell Willis, Jr., and defendant Lashana Philpot were the parents of two daughters who
were born 10 months apart: Lamariana Philpot-Willis, born December 5, 2008, and Marshana
Philpot-Willis, born October 17, 2009. On July 14, 2010, both daughters were placed
unsupervised in a single “bath tote” while in their mother’s care and while the family
participated in a program administrated by One Hope United. The younger daughter,
Marshana, drowned in the bath tote while her older sister Lamariana was alongside her.
¶4 The public guardian of Cook County, which was named as independent administrator of
Marshana’s decedent’s estate, filed the underlying wrongful death action. It was also
appointed guardian of Lamariana’s minor’s estate.
¶5 The circuit court found the $750,000 settlement from One Hope United and Davis to be
made in good faith, and the settlement was also approved by the probate court. The funds
remained undistributed, pending a dependency hearing.
¶6 In 2015, Willis filed a petition seeking a determination pursuant to the Wrongful Death Act
(740 ILCS 180/1 et seq. (West 2014)) of the relative dependencies of Marshana’s family
members. In the petition, he sought an allocation of 90% to himself, 10% to Lamariana, and
0% to the child’s mother, Lashana.
¶7 On November 10, 2016, the court hearing Marshana’s decedent’s estate case granted the
public guardian’s request to withdraw both as administrator and attorney in that case because
the dispute over the division of the settlement created a conflict between two of the heirs of the
estate: Willis, the father, on the one hand, and its ward, Lamariana, on the other. That court
resolved the matter by appointing the Cook County public administrator as successor
supervised administrator of Marshana’s estate.
1
We have substituted Charles P. Golbert, acting public guardian of Cook County, in place of his
predecessor, Robert Harris. 735 ILCS 5/2-1008(d) (West 2016).
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¶8 On November 14, 2016, the circuit court substituted the public administrator of Cook
County for the public guardian as plaintiff in the wrongful death case, and allowed the public
guardian’s attorneys to withdraw as counsel for the plaintiff. The public guardian, however,
retained its previous appointment as guardian of Lamariana’s minor’s estate and its role as her
counsel in the dependency hearing.
¶9 Willis orally moved for “recusal” of the public guardian, asserting that a conflict still
existed and that a private guardian ad litem should be appointed for Lamariana. On November
16, 2016, the court denied the motions, finding that the conflict had been cured and that the
only dispute then pending was between Willis, represented by private counsel, and Willis’s
daughter Lamariana, represented by the public guardian. The court also found Lashana, the
girls’ mother, in default and, after a prove-up hearing, entered a judgment against her for
$100,000.
¶ 10 Willis also filed a third amended motion in limine requesting that the court bar presentation
of, among other things, any evidence of the following at the hearing on his petition: (1) his
criminal convictions; (2) his incarceration for a parole violation; and (3) any trauma suffered
by Lamariana, as she was less than two years old at the time of her sister’s death. On December
1, 2016, the court heard argument on the motion in limine and concluded that such a motion
was more properly brought in a case heard by a jury. The court stated that since it would hear
the evidence without a jury, it would reserve judgment on admission of particular evidence
until it was presented and “exclude any testimony that I feel to be irrelevant.”
¶ 11 On December 9, 2016, the circuit court conducted an evidentiary hearing on Willis’s
petition for allocation of the settlement. At the commencement of the hearing, Willis’s attorney
again requested a ruling on the motion in limine. The court responded: “No. We’ve gone
beyond that. We talked about that.” Eight witnesses testified, and the transcript of the hearing
spans over 400 pages. We summarize the testimony most relevant to the issues presented in
this appeal.
¶ 12 Willis testified that both daughters lived with him from October 17 to December 27, 2009,
and for a few weeks in the spring of 2010. He observed no interaction between his daughters
during that period. After December 27, 2009, the daughters lived with relatives for a few
months. In late April 2010, Marshana was hospitalized for failure to thrive. After Marshana’s
discharge, both daughters were removed from their parents’ household and placed in the
custody of a relative due to a “safety plan.” The children were returned to their mother Lashana
in May 2010. Willis had relocated to Michigan but reunited with his daughters upon his return
to Chicago. He remained with them until Marshana’s death in July. During his testimony, he
repeatedly emphasized that he did not observe the sisters interacting with each other.
¶ 13 Dr. Erika Gilyot-Montgomery, a clinical psychologist, testified that she conducted a
social-emotional assessment on Lamariana. Although Lamariana is prone to tantrums and has
a speech development problem, her overall development was satisfactory and she showed no
particularly abnormal behavior or signs of trauma. She opined that children can “form
attachments” at about the age of one year.
¶ 14 Anita Stewart, a social worker for the Chicago public schools, became involved with the
sisters after Willis complained to the Department of Children and Family Services (DCFS)
about the mother. She saw the girls about two to three times a week and noted that they
exhibited typical “sibling rivalry” behavior and interacted by playing and hugging each other.
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¶ 15 Belinda Warren, a DCFS investigator, testified that Lamariana was nurturing, caring, and
concerned for her little sister. She observed Lamariana showing “genuine concern” by trying
to hold Marshana’s bottle to feed her.
¶ 16 Merlene Robinson-Parsons, Willis’s aunt, testified that Marshana was released to her care
upon her birth and that she cared for both girls for about three weeks. She is now Lamariana’s
guardian, and Lamariana has lived with her since Marshana’s death. She observed Lamariana
trying to hold her sister, and saw the two hug and kiss, and watch television and nap together.
She believes that Lamariana was traumatized by her sister’s death.
¶ 17 Bonnie Neuenschwander, a licensed clinical social worker, testified that she treated
Lamariana for emotional concerns over the course of 14 months. Lamariana has indicated to
her that she misses her sister. During play therapy, Lamariana would often place a doll baby in
the bathtub of a dollhouse. While Neuenschwander does not believe that Lamariana suffers
from post-traumatic stress disorder, she is at risk of it in the future. She opined that Lamariana
was traumatized by her sister’s death and recommended she receive continued therapy.
¶ 18 Joyce Hopkins, Ph.D., a licensed clinical psychologist, testified as an expert. Her specialty
is the field of social and emotional development of children between birth and age five. She
stated that young children retain memories of close relations from a very early age, even their
first year of life. She also remarked that “trauma [including the loss of a sibling] in early
childhood has major impacts on the developing neurological systems.” Based on Lamariana’s
nightmares, her lack of language progress, and her comments that she missed her sister, Dr.
Hopkins rendered an opinion, within a reasonable degree of scientific certainty, that
Lamariana exhibited symptoms of traumatic stress disorder based on the loss of her sister. She
also characterized Lamariana’s placement of the baby doll in the dollhouse bathtub as a
“classic manifestation of the trauma” by a child unable to express her feelings in words.
¶ 19 Following this hearing, the circuit court entered an order (1) finding that Lashana Philpot
was the cause of death of Marshana Philpot “and in law and equity, therefore, cannot recover in
this action”; (2) awarding Willis 60% of the balance of the wrongful death settlement; and (3)
awarding Lamariana 40%, payable to the guardian of her minor’s estate. The court stayed its
order pending appeal.
¶ 20 Willis filed a motion to reconsider, which the circuit court denied on February 14, 2017. In
its opinion denying reconsideration, the court particularly noted that it found the testimony of
Parsons and Hopkins “persuasive” on the issue of the establishment of a relationship between
the two sisters. Referring to the period when Marshana was alive as having a “tumultuous and
often volatile family environment,” the court stated: “If any relationship was being formed
during this time, it was the bond between two sisters—regardless of their respective ages—in
the face of unreliable parenting.” This appeal followed.
¶ 21 On appeal, Willis contends that the circuit court erred by (1) denying Willis’s motion
in limine to bar certain evidence, (2) denying his motion to disqualify the Cook County public
guardian from representing Lamariana’s interests at the evidentiary hearing, and (3) allocating
any of the settlement proceeds to Lamariana, in the absence of competent evidence of an
established sibling relationship.
¶ 22 As a preliminary matter, we note the deficiencies in Willis’s brief on appeal. The brief
contains no appendix as required by Illinois Supreme Court Rule 342(a) (eff. Jan. 1, 2005).
Accordingly, it contains no copies of the order appealed from, the opinions of the circuit court,
or the notice of appeal. Most significantly, it provides no table of contents whatsoever to the
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nine-volume, 1582-page record on appeal. Our rules require that appellants’ briefs contain all
of these materials. See Ill. S. Ct. R. 341(h)(9) (eff. Feb. 6, 2013); R. 342(a) (eff. Jan. 1, 2005).
Supreme court rules are not mere suggestions; they are rules that must be followed. In re
Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 57. “Where an appellant’s brief fails to
comply with supreme court rules, this court has the inherent authority to dismiss the appeal.”
Epstein v. Galuska, 362 Ill. App. 3d 36, 42 (2005). In addition, this court may strike an
appellant’s brief for noncompliance with Rule 341. See People v. Thomas, 364 Ill. App. 3d 91,
97 (2006). Striking a brief or dismissing an appeal for failure to comply with supreme court
rules is, however, a harsh sanction. In re Detention of Powell, 217 Ill. 2d 123, 132 (2005).
Noting that the interests of a minor are at stake, and finding that Willis’s lack of compliance
with Illinois Supreme Court Rule 341(h) does not preclude our review, we will consider the
merits of this appeal based on the brief presented. See In re Estate of Jackson, 354 Ill. App. 3d
616, 620 (2004) (reviewing court has choice to review merits, even in light of multiple Rule
341 mistakes).
¶ 23 We first address Willis’s appeal regarding the denial of his motion in limine. A motion
in limine is
“[A] pretrial motion that seeks an order excluding inadmissible evidence and
prohibiting questions concerning such evidence, without the necessity of having the
questions asked and objections thereto made in front of the jury. Thus, the in limine
order will protect the movant from whatever prejudicial impact the mere asking of the
questions and the making of the objections may have upon a jury.” People v. Williams,
188 Ill. 2d 365, 368 (1999) (citing Reidelberger v. Highland Body Shop, Inc., 83 Ill. 2d
545, 549 (1981)).
In a bench trial, however, the court is presumed to have considered only competent evidence in
making its findings. People v. Tye, 141 Ill. 2d 1, 26 (1990).
¶ 24 The record contains no particular written order specifically denying the motion in limine,
but the parties extensively argued it, and it is clear the court did not find it to be meritorious.
The court repeatedly emphasized that it did not wish to bar entire categories of evidence in
advance, but instead wanted the parties to present evidence of their choosing at the hearing,
subject to objection when the evidence was actually proffered. Since Willis’s petition was
heard by the court, rather than a jury, a motion in limine was an inappropriate mechanism to
prevent the admission of the evidence he sought to bar. But more importantly, the section of
Willis’s appellate brief addressing the motion in limine consists only of argument and fails to
cite a single case, statute, or legal authority. We therefore consider the issue forfeited. Eckiss v.
McVaigh, 261 Ill. App. 3d 778, 786 (1994) (contentions supported by some argument but
absolutely no authority do not meet the requirements of Rule 341).
¶ 25 Willis’s second contention is that the court erred by denying his motion to disqualify the
Cook County public guardian from representing Lamariana’s interests at the dependency
hearing. Willis’s petition for determination of dependency was filed by private counsel who
represented him throughout the evidentiary hearing and on this appeal. Orders were entered
before the hearing substituting the public administrator for the public guardian as independent
administrator of Marshana’s decedent’s estate. Willis asserts that the court entered these orders
intending to resolve a conflict created when the public guardian decided to favor one heir
(Lamariana) over another (Willis) at the dependency hearing.
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¶ 26 In his brief, he cites ethics rules that prohibit attorneys from taking materially adverse
positions to former and existing clients. Ill. R. Prof’l Conduct (2010) Rs. 1.7, 1.9 (eff. Jan. 1,
2010). He then pivots away from the realm of attorney-client ethics and states (without
authority) the proposition that administrators of estates have a duty of impartiality to each heir
of an estate. Relying on these principles, he contends that the public guardian violated its duties
because it “obtained privileged and sensitive information about each of the heirs in its capacity
as the independent administrator” of Marshana’s decedent’s estate and then used that
information “to the disadvantage of an existing and then former client Willis.” (Emphasis
added.) Accordingly, Willis contends that the circuit court should have disqualified the public
guardian from representing Lamariana’s interests at the evidentiary hearing.
¶ 27 This logic suffers from several flaws. First, it improperly conflates the duties of an attorney
to a client with the duties of an estate administrator to heirs or legatees. An attorney
representing the administrator of an estate, even if the administrator is himself, represents the
interests of the estate, not the heirs or legatees. As the court stated in Gagliardo v. Caffrey, 344
Ill. App. 3d 219, 228 (2003), “the beneficiaries of an estate are intended to benefit from the
estate and are owed a fiduciary duty by the executor to act with due care to protect their
interests,” but “[t]hey are not, however, owed allegiance by the estate attorney, who does not
have an attorney-client relationship with the beneficiaries and whose ‘first and only allegiance’
is to the estate in such adversarial situations.” See also In re Estate of Vail, 309 Ill. App. 3d
435, 441 (1999) (“The attorney for the executor does not have an attorney-client relationship
with the beneficiaries ***. When an adversarial situation arises, the attorney for the executor
owes allegiance only to the estate.”). An attorney indeed has a duty of loyalty to her clients, but
for a duty to attach, there must be an attorney-client relationship. Willis’s status as an heir to
his daughter’s decedent’s estate did not establish any attorney-client relationship between him
and the public guardian.
¶ 28 That still leaves the question of whether the public guardian breached any duty to Willis
when it advocated at the evidentiary hearing for Lamariana to obtain a share of the estate at
Willis’s expense. The relationship between an estate administrator and a beneficiary of the
estate is “fiduciary in character.” Stone v. Stone, 407 Ill. 66, 77 (1950). But that fiduciary
relationship does not extend to all affairs and transactions between administrators and
beneficiaries. Id. Willis contends that when the public guardian became the estate
administrator, he acquired a fiduciary duty to all heirs of the estate, a duty which prevented him
from ever taking a position adverse to Willis in the future, even after he no longer served as
estate administrator. Willis’s argument on this point is confusing and not well developed.
Other than a fleeting reference to the Illinois Rules of Professional Conduct, Willis’s brief fails
to cite any authority to support this contention of error. His vague references to unspecified
“privileged and sensitive information *** including but not limited to depositions, agency case
files, privileged juveniles files, etc.,” without further explanation, render us unable to discern
exactly what the public guardian may have done that breached some duty to Willis. Willis’s
brief fails to explain which, if any, of these items was actually used at the hearing or in any
other way. Accordingly, we consider this issue forfeited, as well. See Ill. S. Ct. R. 341(h)(7)
(eff. Feb. 6, 2013); see also People v. Lane, 2017 IL App (1st) 151988, ¶ 18 (“We will not
attempt to divine the rationale behind defendant’s undeveloped argument; defendant has
forfeited this argument.”).
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¶ 29 Willis’s third contention of error challenges the circuit court’s allocation of 40% of the
wrongful death proceeds to Lamariana. He requests that this court remand with instructions to
award 100% of the proceeds to him.
¶ 30 Dependency hearings are creatures of statute established by the Wrongful Death Act (740
ILCS 180/1 et seq. (West 2014)). The purpose of the statute is to compensate the surviving
spouse and next of kin for the pecuniary losses sustained due to the decedent’s death. In re
Estate of Finley, 151 Ill. 2d 95, 101 (1992). At a dependency hearing, the court must determine
the relative dependencies of these parties. Johnson v. Provena St. Therese Medical Center, 334
Ill. App. 3d 581, 588 (2002). We review a dependency allocation for abuse of discretion.
Adams v. Turner, 198 Ill. App. 3d 353, 356 (1990). We may reverse the court’s dependency
determination only if no reasonable person could agree with it. In re Adoption of D., 317 Ill.
App. 3d 155, 160 (2000).
¶ 31 The Wrongful Death Act does not define the term “dependency.” However, case law
establishes that the term connotes, in part, the support obtained by a party from a previously
existing relationship with the deceased. Johnson, 334 Ill. App. 3d at 592. Also relevant is loss
of society, which includes the “companionship, guidance, advice, love, and affection”
formerly offered by the decedent. (Internal quotation marks omitted.) Williams v.
Rush-Presbyterian St. Luke’s Medical Center, 387 Ill. App. 3d 77, 83 (2008).
¶ 32 Recognizing that a sibling relationship may “often times [be] extremely significant,” our
supreme court has held that, where a sibling is next of kin under the Wrongful Death Act, the
sibling may recover pecuniary damages for “deprivation of the companionship, guidance,
advice, love and affection of the deceased.” (Internal quotation marks omitted.) Finley, 151 Ill.
2d at 103-04. However, “simply because the parents and the siblings of the decedent may both
suffer legally cognizable pecuniary injury which may include loss of society, it does not
necessarily follow that both the parents and the siblings will be treated alike for purposes of the
application of a presumption of loss of society.” Id. at 104. An individual may recover for loss
of a deceased brother or sister, but the individual’s damages are not presumed and must be
proven. Id. Even in the absence of evidence of direct testimony establishing a relationship
between the deceased and siblings because of the deceased’s severe disabilities during his life,
loss of society may be established through such things as visiting the deceased sibling when he
was hospitalized or including the sibling at holiday celebrations. Jones v. Chicago Osteopathic
Hospital, 316 Ill. App. 3d 1121, 1137 (2000).
¶ 33 Willis contends that the circuit court engaged in a “shameful manipulation of the facts” to
arrive at its dependency allocation. He claims that “[w]itness after witness that observed
Lamariana and Marshana together overwhelmingly testified that there was no evidence of a
relationship based on loss of society.” The record demonstrates otherwise. Several witnesses
gave examples of interactions between the two girls, including hugging, kissing, feeding, and
playing. The court specifically relied on the expert testimony of Dr. Hopkins, who explained
that even very young children form bonds with siblings. This testimony, and that of other
witnesses, sufficed to demonstrate “deprivation of the companionship, guidance, advice, love
and affection” as required by Finley. Willis counters with his own testimony, in which he
repeatedly asserted there was no bond between the two girls. He also relies on similar
testimony of other witnesses. But his argument distills down to a plea to reweigh the evidence,
which we may not do. See Adams, 198 Ill. App. 3d at 356. Based on this record, we cannot say
the circuit court abused its discretion in allocating a share of dependency to Lamariana.
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¶ 34 Likewise, the court did not abuse its discretion in awarding Lamariana a 40% share as
opposed to her father’s 60% share. In light of Marshana’s very short life and the facts presented
regarding Willis’s periodic absences from Marshana’s home, the circuit court could reasonably
have determined that Willis’s and Marshana’s pecuniary damages were roughly equal, with
Willis receiving a slightly larger share.
¶ 35 Affirmed.
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