                                Illinois Official Reports

                                        Appellate Court



             Robison v. Orthotic & Prosthetic Lab, Inc., 2015 IL App (5th) 140079



Appellate Court           RANDY ROBISON, Plaintiff-Appellee, v. ORTHOTIC                          &
Caption                   PROSTHETIC LAB, INC., Defendant-Appellant.


District & No.            Fifth District
                          Docket No. 5-14-0079


Filed                     February 4, 2015


Held                       In a product liability action where settlement negotiations were started
(Note: This syllabus and an agreement was ostensibly reached during a period when
constitutes no part of the defendant had no knowledge of plaintiff’s death or the appointment of
opinion of the court but a personal representative throughout the negotiations and plaintiff’s
has been prepared by the counsel acknowledged that the disclosure would have had an adverse
Reporter of Decisions impact on the value of the settlement and that the decision to withhold
for the convenience of the information was in his client’s best interest, the appellate court
the reader.)               held that plaintiff’s counsel intentionally concealed a material fact that
                           would have reduced the value of plaintiff’s claim for damages and that
                           the trial court erred in granting plaintiff’s motion to enforce it;
                           therefore, the order was vacated and the cause was remanded to the
                           trial court for further proceedings, and, furthermore, the clerk of the
                           appellate court was directed to transmit a copy of the appellate court’s
                           opinion in this case to the Attorney Registration and Disciplinary
                           Commission for consideration of the actions of the attorneys in this
                           case.


Decision Under            Appeal from the Circuit Court of St. Clair County, No. 08-L-601; the
Review                    Hon. Vincent J. Lopinot, Judge, presiding.



Judgment                  Order vacated; cause remanded.
     Counsel on                James L. Smith, of Kamykowski, Gavin & Smith, PC, of St. Louis,
     Appeal                    Missouri, for appellant.

                               Mark C. Scoggins, Clay B. St. Clair, and Anthony P. Gilbreth, all of
                               Crowder & Scoggins, Ltd., of Columbia, for appellee.



     Panel                     PRESIDING JUSTICE CATES delivered the judgment of the court,
                               with opinion.
                               Justices Chapman and Schwarm concurred in the judgment and
                               opinion.




                                                OPINION

¶1         The defendant, Orthotic & Prosthetic Lab, Inc., appeals from an order of the circuit court
       granting a motion to enforce a settlement agreement in a product liability action. The defendant
       contends that the settlement agreement is invalid because the attorneys who purportedly
       represented the plaintiff during settlement negotiations lacked the authority to negotiate a
       settlement where the plaintiff had died and a proper representative of the estate had not been
       substituted as the party plaintiff. The defendant also contends that the settlement agreement is
       invalid because the attorneys who purportedly represented the plaintiff during settlement
       negotiations failed to disclose the material fact that the plaintiff had died eight months prior to
       the commencement of the negotiations. For the reasons that follow, we vacate the order
       granting the motion to enforce the settlement and remand the cause for further proceedings.
¶2         On November 24, 2008, the plaintiff, Randy Robison, through his attorneys, Crowder &
       Scoggins, Ltd. (the Crowder firm), filed a product liability action in the circuit court of St.
       Clair County against the defendant, Orthotic & Prosthetic Lab, Inc. The plaintiff alleged that
       he suffered serious injuries when a prosthesis, which was designed, manufactured, and sold by
       the defendant, failed while he was using it for its intended purposes. He sought damages for
       personal injuries, pain and suffering, and past and future medical expenses. The defendant,
       through its attorneys, Greensfelder, Hemker & Gale, P.C. (the Greensfelder firm), appeared,
       and the case proceeded on the usual path with motions, discovery, and disclosures of expert
       witnesses. In March 2013, the trial court noted that there had been little activity in the case
       between December 2012 and March 2013. The court also scheduled a status conference for
       April 29, 2013. The status conference was continued and rescheduled for July 1, 2013. The
       attorneys of record appeared on that date, and the court scheduled the case for a trial in October
       2013.
¶3         In September 2013, the attorneys of record, James Smith, an attorney with the Greensfelder
       firm, and Anthony Gilbreth, an attorney with the Crowder firm, began settlement negotiations
       via email, and the email communications are a part of the record. On September 19, 2013, Mr.
       Smith emailed a final offer to settle the case for a sum certain to Mr. Gilbreth. In an email dated


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     September 24, 2013, Mr. Gilbreth provided the following response: “My client has instructed
     me to accept [amount redacted] in full and final settlement of this matter. Please provide an
     appropriate release and I will present it to my client for review and approval.”
¶4       On October 24, 2013, the court was notified that a settlement had been reached and that the
     settlement documents were being drafted. The case was continued pending the execution of the
     settlement documents.
¶5       On November 7, 2013, Mr. Smith tendered a settlement agreement and a general release to
     Mr. Gilbreth. On Friday, November 15, 2013, Mr. Gilbreth sent an email to Mr. Smith and
     attached an amended version of the proposed release. The email stated, in part, as follows:
             “I also attach a Suggestion of Death and Order substituting Randy’s son, Matthew, as
             Plaintiff in this matter. As you may already know, Randy passed away, and his son was
             appointed Administrator of his Estate in August. So long as you have no objection to
             Matt being substituted as Plaintiff, I can simply have the Order entered next time I am
             in Belleville.”
     It was via the email of November 15, 2013, that the defendant and its attorneys first learned
     that the plaintiff had died and that the plaintiff’s son, Matthew Robison, had been appointed as
     the personal representative of his estate.
¶6       On Monday, November 18, 2013, Mr. Smith emailed Mr. Gilbreth regarding the failure to
     disclose the fact of Randy Robison’s death. Mr. Smith asked Mr. Gilbreth whether the failure
     to disclose the fact of the plaintiff’s death was intentional or an “unfortunate oversight.” He
     also asked whether Mr. Gilbreth considered the death of the plaintiff to be a material fact in the
     context of settlement discussions in a personal injury case. In reply, Mr. Gilbreth stated that he
     and his office had researched the issue and determined that he had no affirmative duty to
     disclose the information because it was against his clients’ interests and he had a duty to
     protect his clients’ interests within the bounds of the rules of professional responsibility. On
     November 19, 2013, Mr. Smith advised Mr. Gilbreth that the defendant would not consent to
     the substitution of the plaintiff. He further advised that the defendant did not believe that the
     settlement was valid.
¶7       On December 30, 2013, Matthew Robison, personal representative of the estate of Randy
     Robison (the personal representative), by his attorneys of the Crowder firm, filed a motion to
     substitute plaintiff and a motion to enforce the settlement in the product liability case. In the
     motion to substitute plaintiff, the personal representative sought to be substituted as the party
     plaintiff, noting that the plaintiff, Randy Robison, died on January 20, 2013; that the cause of
     action survives; and that the personal representative of the probate estate of Randy Robison
     had been appointed by the circuit court in St. Louis County, Missouri, on August 27, 2013.
¶8       In the motion to enforce the settlement, the personal representative asserted that the
     plaintiff had accepted the defendant’s offer of settlement on September 24, 2013; that the
     defendant tendered a settlement agreement and a release on November 7, 2013; that counsel
     for the plaintiff informed the defendant on November 15, 2013, that the plaintiff had died and
     that the personal representative of the plaintiff’s probate estate would move to be substituted as
     the plaintiff for purposes of completing the settlement; and that on November 19, 2013, the
     defendant’s counsel advised that the defendant would not consummate the settlement because
     the defendant was unaware, at the time of the settlement, that the plaintiff was deceased. The
     personal representative claimed that Randy Robison’s death was not a proper basis for refusing
     to complete the settlement and that the settlement agreement should be enforced.

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¶9         The defendant filed a memorandum in opposition to the motion to enforce the settlement.
       The defendant claimed that the settlement agreement was invalid because the authority of the
       Crowder firm to represent the plaintiff in the product case terminated upon the plaintiff’s death
       and because there was no plaintiff of record when the settlement was negotiated. The
       defendant further argued that the settlement was invalid because the death of the plaintiff was a
       material fact that had been concealed from the defendant prior to and during settlement
       negotiations. The defendant attached the petition for letters of administration seeking the
       appointment of Matthew Robison as personal representative of Randy Robison’s estate. The
       petition was filed in the circuit court of St. Louis County, Missouri, on July 9, 2013, by Kathie
       Blackman Dudley, an attorney with the Crowder firm. The defendant argued that the content of
       the petition showed that Mr. Gilbreth had knowledge of the plaintiff’s death at least two
       months before settlement negotiations commenced.
¶ 10       The motions were called for hearing January 21, 2014. At the close of the hearing, the trial
       court granted the motion to substitute the personal representative as the party plaintiff and took
       the motion to enforce the settlement under advisement. The court entered an order granting the
       motion to enforce the settlement on January 22, 2014.
¶ 11       On appeal, the defendant contends that the circuit court erred in granting the motion to
       enforce the settlement. We agree.
¶ 12       In every suit, there must always be a plaintiff, a defendant, and a court. Mitchell v. King,
       187 Ill. 452, 459, 55 N.E. 637, 639 (1900). An attorney’s employment and his authority are
       revoked by the death of his client, and an attorney cannot proceed where he does not represent
       a party to the action. Mitchell, 187 Ill. at 459, 55 N.E. at 639; Washington v. Caseyville Health
       Care Ass’n, 284 Ill. App. 3d 97, 100, 672 N.E.2d 34, 36 (1996). Generally, the attorney-client
       relationship is terminated by the death of the client, and thereafter, the authority of the attorney
       to represent the interests of a deceased client must come from the personal representatives of
       the decedent. Washington, 284 Ill. App. 3d at 101, 672 N.E.2d at 36; In re Marriage of
       Fredricksen, 159 Ill. App. 3d 743, 512 N.E.2d 1080 (1987).
¶ 13       In this case, the plaintiff, Randy Robison, died on January 20, 2013. Upon Randy
       Robison’s death, the product liability action was without a plaintiff, and the Crowder firm’s
       authority to act on behalf of Randy Robison terminated. Under our procedural rules, this cause
       of action is one that survives the death of a party, and the personal representative of the
       decedent’s estate is permitted to file a motion for substitution. See 735 ILCS 5/2-1008(b)
       (West 2002). The motion for substitution is to be filed within 90 days after the party’s death is
       suggested of record, and the date of the actual death is not a factor. See Ferak v. Elgin, Joliet &
       Eastern Ry. Co., 55 Ill. 2d 596, 600, 304 N.E.2d 619, 621 (1973). In this case, the motion to
       substitute plaintiff was timely filed on December 30, 2013, and the order authorizing the
       substitution of the personal representative as the party plaintiff was entered on January 21,
       2014. Thus, from January 20, 2013, to January 21, 2014, the product liability action was
       without a plaintiff, and the Crowder firm did not represent a party to the action.
¶ 14       Settlement negotiations commenced in September 2013, and an agreement was ostensibly
       reached on September 24, 2013. The defendant, however, had no knowledge about the
       plaintiff’s death or the appointment of a personal representative throughout the period of
       settlement negotiations. Mr. Gilbreth acknowledged that he did not disclose these facts to the
       defendant until November 15, 2013, weeks after the settlement was reached and months after
       the plaintiff’s death. Mr. Gilbreth also acknowledged that the disclosure of the plaintiff’s death

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       would have adversely impacted the settlement value of the case. He stated that he believed that
       the decision to withhold the information was in his clients’ best interest and was in keeping
       with the rules of professional responsibility. We strongly disagree. We find that the arguments
       expressed by Mr. Gilbreth are specious and incredible, and we are concerned about his
       professional judgment in this case. In failing to disclose the fact of the plaintiff’s death, Mr.
       Gilbreth intentionally concealed a material fact that would have reduced the overall value of
       the claim for damages. In addition, and equally troubling, Mr. Gilbreth led the defendant to
       believe that he had authority to negotiate a settlement of the litigation on behalf of the party
       plaintiff, when the action was without a plaintiff as the plaintiff had died and a representative
       had not been substituted. Given Mr. Gilbreth’s intentional misrepresentations and material
       omissions prior to and during the settlement negotiations, we conclude that the settlement
       agreement is invalid and unenforceable, and that the trial court erred in granting the motion to
       enforce it. Accordingly, we hereby vacate the order granting the motion to enforce settlement
       and remand the cause to the circuit court for further proceedings.
¶ 15       Finally, we believe that we have a profound responsibility to comment on the conduct of
       the attorneys in this case. Lawyers who are admitted to practice in Illinois, and those who are
       not admitted but provide legal services within this jurisdiction, are subject to the Illinois Rules
       of Professional Conduct of 2010 (RPC). Ill. R. Prof. Conduct (2010) R. 8.5 (eff. Jan. 1, 2010).
       Rule 8.4(c) of the RPC states that it is professional misconduct for a lawyer to engage in
       conduct involving dishonesty, fraud, deceit, or misrepresentation. Ill. R. Prof. Conduct (2010)
       R. 8.4(c) (eff. Jan. 1, 2010). Rule 8.3 requires a lawyer to report unprivileged knowledge of
       misconduct involving fraud, dishonesty, or deceit, or misrepresentation by another lawyer to
       the Illinois Attorney Registration and Disciplinary Commission (ARDC). See Ill. R. Prof.
       Conduct (2010) R. 8.3 (eff. Jan. 1 2010); In re Himmel, 125 Ill. 2d 531, 539, 533 N.E.2d 790,
       793 (1988).
¶ 16       In this case, we believe that the material omissions and misrepresentations made by Mr.
       Gilbreth, which were detailed earlier in this decision, constitute serious violations of Rule 8.4.
       We also believe that defense counsel possessed sufficient knowledge to trigger a duty to report
       Mr. Gilbreth’s misconduct to the ARDC and that the failure to report the misconduct
       constitutes a potential violation of Rule 8.3. See Himmel, 125 Ill. 2d at 540-43, 533 N.E.2d at
       793-94. Therefore, we will direct the clerk of this court to transmit a copy of this opinion to the
       Attorney Registration and Disciplinary Commission for its consideration of the actions of the
       attorneys in this case. While we bring to light potential violations of the rules of professional
       conduct by Mr. Gilbreth and Mr. Smith, we express no opinion as to the merits of any charges
       that may be brought against them in relation to those matters. Disciplinary proceedings and
       sanctions for unprofessional conduct rest exclusively within the inherent authority of our
       supreme court. In re Harris, 93 Ill. 2d 285, 291, 443 N.E.2d 557, 559 (1982). We intend that
       this case will serve as a reminder that the reporting obligations under our rules of professional
       conduct, though weighty and unpleasant, are influenced by a profound desire to maintain the
       integrity of our legal profession, to further the ends of justice, and to protect the public.
       Himmel, 125 Ill. 2d at 544, 533 N.E.2d at 795.
¶ 17       For the reasons stated, we hereby vacate the order of the circuit court granting the motion to
       enforce the settlement, and we remand this case to the circuit court for further proceedings. We
       further direct the clerk of this court to transmit a copy of this opinion to the Attorney



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       Registration and Disciplinary Commission for its consideration of the actions of the attorneys
       in this case.

¶ 18      Order vacated; cause remanded.




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