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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.

                                                    -7-
¶ 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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