{
  "id": 1260425,
  "name": "MALVIN WASHINGTON, Special Adm'r of the Estate of Magnolia Washington, Plaintiff-Appellee, v. CASEYVILLE HEALTH CARE ASSOCIATION, INC., d/b/a Virgil L. Calvert Care Center, Defendant-Appellant",
  "name_abbreviation": "Washington v. Caseyville Health Care Ass'n",
  "decision_date": "1996-10-11",
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    "judges": [],
    "parties": [
      "MALVIN WASHINGTON, Special Adm\u2019r of the Estate of Magnolia Washington, Plaintiff-Appellee, v. CASEYVILLE HEALTH CARE ASSOCIATION, INC., d/b/a Virgil L. Calvert Care Center, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE HOPKINS\ndelivered the opinion of the court:\nDefendant, Caseyville Health Care Association, Inc., d/b/a Virgil L. Calvert Care Center, appeals from that portion of the trial court\u2019s order granting plaintiffs 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\u2019s order granting the motion to enforce was erroneous because the court\u2019s 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\u2019s attorney (attorney Hammel) and attorney Hammel had no authority to sign the agreement. We reluctantly agree and reverse the trial court\u2019s order granting the motion to enforce the settlement agreement. We also vacate the court\u2019s order approving the settlement agreement. We additionally remand this cause for further proceedings in accordance with this opinion.\nI. FACTS\nEssentially, 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 \u2014 101 et seq. (West 1992)), and under a theory of res ipsa loquitur.\nOn 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\u2019s estate, be substituted as plaintiff. The court entered an order that same day allowing the motion and substituting Therman, as special administrator of Magnolia\u2019s estate, as plaintiff.\nOn 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\u2019s 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.\nOn 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\u2019s estate, in place of Therman, on October 10, 1995. In correspondence sent by facsimile to defendant\u2019s counsel, attorney Hammel sent a copy of a motion to substitute Malvin as special administrator, a copy of an \"Oath of Special Administrator,\u201d and a copy of a document entitled \"Special Administrator\u2019s Letter of Direction and Engagement,\u201d which was signed by Malvin and attorney Hammel. This correspondence to defendant\u2019s 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.\nOn 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\u2019s motion to enforce and to counsel\u2019s 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\u2019s motions to quash, and granted the motion to substitute Malvin as special administrator of Magnolia\u2019s estate. Defendant appeals this order.\nII. ANALYSIS\nDefendant contends that the trial court erred when it granted plaintiff\u2019s motion to enforce the settlement agreement. Its argument of this issue is: (a) that the court\u2019s 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\u2019s death, which also terminated attorney Hammel\u2019s 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\u2019s motions to quash subpoenas; and (2) that the trial court erred in granting attorney Hammel\u2019s motion to substitute Malvin as special administrator of Magnolia\u2019s estate if the order was entered nunc pro tunc.\nWe initially consider defendant\u2019s contention that the court\u2019s 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 (1900). An attorney\u2019s employment and his authority are 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.\n\u20222 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\u2019s special administrator even on that date. Malvin\u2019s 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\u2019s 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\u2019s jurisdiction was suspended until a party plaintiff was appointed, and the court\u2019s order approving the settlement agreement was invalid.\nThis 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 contractor. 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\u2019s death. Restatement (Second) of Agency \u00a7 120 (1958). Because attorney Hammel was an agent of Therman, his authority to act as Therman\u2019s agent ended at Therman\u2019s death.\nIn light of our foregoing ruling, we need not consider the other arguments under defendant\u2019s first issue, for to do so would be a useless act. However, with regard to defendant\u2019s 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\u2019s death at the time he appeared before the court or even at the time he agreed to settle the case, for Therman\u2019s 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\u2019s death in a reasonable time frame.\nFurther, with regard to defendant\u2019s second issue, that the court erred in not granting it a hearing on attorney Hammel\u2019s 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\u2019n, 153 Ill. App. 3d 605 (1987).\nLastly, we find defendant\u2019s 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:\n\"Okay, so I see no problem with appointing him [Malvin] today.\u201d Similarly, in the court\u2019s written order, the court simply said that it would allow the motion to substitute Malvin as special administrator. 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\u2019s order substituting Malvin as special administrator still stands.\nIII. CONCLUSION\nFor the foregoing reasons, that portion of the court\u2019s order substituting Malvin as special administrator is affirmed. That portion of the circuit court\u2019s order granting plaintiff\u2019s 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.\nAffirmed in part, reversed in part, and vacated in part; cause remanded.\nWELCH and MAAG, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE HOPKINS"
      }
    ],
    "attorneys": [
      "Melissa Griggs, of Burroughs, Hepler, Broom, MacDonald & Hebrank, of Edwardsville, for appellant.",
      "Jeffrey S. Hammel, of Belleville, for appellee."
    ],
    "corrections": "",
    "head_matter": "MALVIN WASHINGTON, Special Adm\u2019r of the Estate of Magnolia Washington, Plaintiff-Appellee, v. CASEYVILLE HEALTH CARE ASSOCIATION, INC., d/b/a Virgil L. Calvert Care Center, Defendant-Appellant.\nFifth District\nNo. 5\u201496\u20140022\nOpinion filed October 11, 1996.\nMelissa Griggs, of Burroughs, Hepler, Broom, MacDonald & Hebrank, of Edwardsville, for appellant.\nJeffrey S. Hammel, of Belleville, for appellee."
  },
  "file_name": "0097-01",
  "first_page_order": 115,
  "last_page_order": 120
}