{ "id": 7328362, "name": "JUDITH BAEZ, Indiv. and as Special Adm'r of the Estate of Rafael Marquez, Deceased, Plaintiff-Appellee, v. GARRETT ROSENBERG, Defendant (Jesenia Laureano, Guardian of the Estate of Destiny Alexia Marquez, a Minor, Petitioner-Appellant)", "name_abbreviation": "Baez v. Rosenberg", "decision_date": "2011-05-09", "docket_number": "No. 1\u201410\u20140090", "first_page": "525", "last_page": "538", "citations": [ { "type": "official", "cite": "409 Ill. App. 3d 525" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "306 Ill. App. 3d 822", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336045 ], "year": 1999, "pin_cites": [ { "page": "827" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0822-01" ] }, { "cite": "193 Ill. 2d 560", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963681 ], "year": 2000, "pin_cites": [ { "page": "572-73" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0560-01" ] }, { "cite": "342 Ill. App. 3d 764", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472432 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "770" }, { "page": "770" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0764-01" ] }, { "cite": "292 Ill. App. 3d 914", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725133 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "923" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0914-01" ] }, { "cite": "185 Ill. App. 3d 746", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2645991 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "748" }, { "page": "749-50", "parenthetical": "there was no breach of fiduciary duty and the administrator's attorney was entitled to fees because the parents of the deceased timely abandoned their claim for wrongful death proceeds where the deceased was survived by children" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0746-01" ] }, { "cite": "223 Ill. 2d 49", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3604629 ], "year": 2006, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0049-01" ] }, { "cite": "63 Ill. App. 2d 246", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5297213 ], "year": 1965, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/63/0246-01" ] }, { "cite": "37 Ill. App. 2d 46", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5257325 ], "year": 1962, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/37/0046-01" ] }, { "cite": "350 Ill. 64", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5302657 ], "year": 1932, "pin_cites": [ { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/ill/350/0064-01" ] }, { "cite": "334 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 522011 ], "year": 2002, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0581-01" ] }, { "cite": "376 Ill. App. 3d 459", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4272565 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "465" }, { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/376/0459-01" ] }, { "cite": "125 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5555434 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "362-63" }, { "page": "362-63" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0348-01" ] }, { "cite": "395 Ill. App. 3d 536", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4291418 ], "year": 2009, "pin_cites": [ { "page": "545", "parenthetical": "arguments not raised in the trial court are forfeited on appeal" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/395/0536-01" ] }, { "cite": "334 Ill. App. 3d 259", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521911 ], "year": 2002, "pin_cites": [ { "page": "262-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0259-01" ] }, { "cite": "272 Ill. App. 3d 246", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 252598 ], "year": 1995, "pin_cites": [ { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0246-01" ] }, { "cite": "219 Ill. App. 3d 372", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5801741 ], "year": 1991, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0372-01" ] }, { "cite": "20 Ill. 2d 301", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2738128 ], "year": 1960, "pin_cites": [ { "page": "309-10", "parenthetical": "permitting a widow to maintain an independent action for the medical and funeral expenses incurred as a result of the wrongful death of her husband" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0301-01" ] }, { "cite": "49 Ill. App. 2d 101", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5273963, 5273381 ], "year": 1964, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/49/0101-02", "/ill-app-2d/49/0101-01" ] }, { "cite": "19 Ill. App. 2d 212", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5190832 ], "year": 1958, "pin_cites": [ { "page": "215-16" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/19/0212-01" ] }, { "cite": "279 Ill. App. 3d 624", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75371 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "627" }, { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0624-01" ] }, { "cite": "41 Ill. App. 2d 471", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2451565 ], "year": 1963, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0471-01" ] }, { "cite": "76 Ill. App. 2d 477", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2575205 ], "year": 1966, "pin_cites": [ { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/76/0477-01" ] }, { "cite": "157 Ill. App. 3d 1036", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3544148 ], "year": 1987, "pin_cites": [ { "page": "1047-48" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/1036-01" ] }, { "cite": "206 Ill. App. 3d 676", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2560259 ], "year": 1990, "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/206/0676-01" ] }, { "cite": "34 Ill. 2d 487", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2879370 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-2d/34/0487-01" ] }, { "cite": "330 Ill. 571", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5205259 ], "year": 1928, "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/ill/330/0571-01" ] }, { "cite": "187 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131038 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "497", "parenthetical": "quoting Wilcox v. Bierd, 330 Ill. 571, 582 (1928), overruled on other grounds, McDaniel v. Bullard, 34 Ill. 2d 487 (1966)" }, { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0494-01" ] }, { "cite": "156 Ill. App. 3d 634", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506565 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "637" }, { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0634-01" ] }, { "cite": "162 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3509352 ], "year": 1987, "pin_cites": [ { "page": "3" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0001-01" ] }, { "cite": "306 Ill. App. 3d 731", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336112 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "732" }, { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0731-01" ] } ], "analysis": { "cardinality": 1091, "char_count": 33654, "ocr_confidence": 0.775, "pagerank": { "raw": 7.317852702137001e-08, "percentile": 0.4384471836002794 }, "sha256": "5eb1092c26f5ac4944657b9b469ea1e5bf70b74768187fb5e3808ba3b672bef4", "simhash": "1:6b225fa54ef8c450", "word_count": 5397 }, "last_updated": "2023-07-14T17:25:27.574146+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JUDITH BAEZ, Indiv. and as Special Adm\u2019r of the Estate of Rafael Marquez, Deceased, Plaintiff-Appellee, v. GARRETT ROSENBERG, Defendant (Jesenia Laureano, Guardian of the Estate of Destiny Alexia Marquez, a Minor, Petitioner-Appellant)." ], "opinions": [ { "text": "JUSTICE LAMPKIN\ndelivered the judgment of the court, with opinion.\nPresiding Justice Hall and Justice Rochford concurred in the judgment and opinion.\nOPINION\nA settlement was reached in a wrongful death and survival suit brought by the deceased\u2019s estate against the other driver involved in the collision. The circuit court (1) distributed the settlement proceeds among the deceased\u2019s parents and minor child; (2) awarded funeral and burial expenses to reimburse expenditures made by the deceased\u2019s parents; (3) awarded attorney fees and costs to both the special administrator\u2019s and the child\u2019s attorneys; and (4) denied the motion filed on behalf of the child to substitute her mother as the special administrator instead of the deceased\u2019s mother. An appeal was filed on behalf of the child.\nWe hold that: (1) only the child of the deceased, not his parents, was his \u201cnext of kin\u201d and entitled to the proceeds from the settlement of the wrongful death claim; (2) the parents were not entitled under the wrongful death claim to reimbursement for the funeral and burial expenses they advanced to the deceased\u2019s estate; (3) the attorney for the special administrator was not entitled to attorney fees and costs pursuant to a contract, the common fund doctrine, or equitable principles; and (4) the circuit court must review on remand the motion to substitute the special administrator.\nAccordingly, we reverse the circuit court\u2019s awards to the deceased\u2019s parents of wrongful death settlement proceeds and funeral and burial expenses. We also reverse the circuit court\u2019s award of fees and costs to the special administrator\u2019s attorney. Further, we reverse and remand for review the court\u2019s denial of the motion to substitute the special administrator.\nI. BACKGROUND\nThis dispute arose after the July 1, 2008 death of Rafael Marquez, who was involved in a collision with a car while he was riding his motorcycle. At the time of his death, Rafael was survived by his parents, Judith Baez and Mario Marquez, and a brother. In addition, Jesenia Laureano claimed that she was pregnant with Rafael\u2019s child. Baez retained Regina E Etherton & Associates, LLC (Etherton), as counsel. Laureano retained Heller & Richmond, Ltd. (Richmond), as counsel.\nOn September 5, 2008, the insurance carrier for the car that struck Rafael offered the $100,000 policy limit to both counsel \u201cto extinguish all claims.\u201d The insurance carrier needed court approval of the settlement with documentation that the court had addressed the claims presented by both attorneys and specific instructions as to how and to whom to issue the checks. Once that documentation was received, the insurance carrier would forward the appropriate releases.\nOn September 15, 2008, Baez filed a petition moving the court to appoint her as special administrator of Rafael\u2019s estate pursuant to the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2008)) and the Code of Civil Procedure (735 ILCS 5/2\u20141008 (West 2008)). The petition stated that Rafael\u2019s death created causes of action for his next of kin \u201cfor, inter alia, wrongful death and pecuniary losses under the Illinois Wrongful Death Act [citation]; for physical injury, pain, suffering and medical and other expenses under the Illinois Survival Act, 755 ILCS 5/27\u20146 (West 2008); and under other statutes and laws in such cases made and provided.\u201d The petition also stated that those causes of action were the only relevant assets of the estate and a petition for letters of office had not been filed for the estate. That same day, the circuit court appointed Baez as special administrator \u201cfor the purpose of prosecuting each individual cause of action for damages on the behalf of the Estate pursuant to the Illinois Wrongful Death Act [citation], the Illinois Survival Act [citation], and other statutes and laws in such cases made and provided.\u201d Also that same day, Baez filed a complaint for damages on behalf of Rafael\u2019s estate, asserting a wrongful death action (count I) and a survival action (count II).\nOn September 17, 2008, Baez filed a petition to distribute settlement funds pursuant to section 2 of the Wrongful Death Act (740 ILCS 180/2 (West 2008)). The petition asserted that the $100,000 settlement proceeds should be distributed to Rafael\u2019s mother, father and brother in proportions determined by the court. The petition stated that Laureano claimed to be carrying Rafael\u2019s unborn child, but Rafael\u2019s family challenged the paternity of that child and did not believe any money should be distributed to the child.\nOn November 23, 2008, Laureano gave birth to Destiny Marquez. In January 2009, Laureano filed a petition seeking DNA testing to determine whether Rafael was Destiny\u2019s father. The court ordered such testing, and a DNA test report dated February 13, 2009, indicated a 99.9995% probability that Baez and Mario Marquez were Destiny\u2019s biological grandparents. On May 12, 2009, the court noted that the parties agreed the test results indicated that Rafael was Destiny\u2019s biological parent.\nThe circuit court held an evidentiary hearing and then, on August 14, 2009, issued its decision on the petition to approve the settlement, determine the proper dependents, and distribute the settlement funds. Transcripts of those hearings were not included in the record on review. The circuit court found that the $100,000 settlement was fair, adjudged Rafael to be Destiny\u2019s father, and determined that Rafael\u2019s mother Baez, father Mario Marquez, and child Destiny were entitled to distributions. The court determined that Baez and Mario Marquez were dependent on Rafael for support, whereas Destiny was only partially dependent on him for support. The court awarded $13,713.26 to Baez and $13,713.26 to Mario Marquez. In addition, they should \u201creceive $13,041 to reimburse for funeral expenses which they expended.\u201d The court also awarded Etherton $22,222 in attorney fees and $762.96 for expenses. Further, the court awarded Destiny $27,427.52. Finally, the court awarded Richmond $8,200 for attorney fees and $920 for costs.\nLaureano filed a motion for reconsideration, which argued that: (1) the award to Rafael\u2019s parents was contrary to the Wrongful Death Act because they were not classified as his next of kin where he was survived by his child; (2) the funeral expenses paid by Rafael\u2019s parents were not recoverable under the Wrongful Death Act; (3) the award of attorney fees to Etherton was error; and (4) the allocation of attorney fees to Richmond was inequitable. Laureano also filed a motion to substitute administrators. Specifically, she asserted that special administrator Baez had a conflict of interest with Destiny, who was Rafael\u2019s sole beneficiary under the Wrongful Death Act, and Laureano should be appointed special administrator instead of Baez.\nIn response, Baez objected to Laureano\u2019s motion for reconsideration and motion to substitute administrators. Baez also moved the court to assess attorney fees against Laureano and Richmond.\nThe circuit court denied Baez\u2019s motion to assess attorney fees; denied Laureano\u2019s motion for reconsideration; and denied Laureano\u2019s motion to substitute administrators. A timely appeal was filed on behalf of the estate of Destiny Marquez, a minor, by her mother, petitioner Laureano.\nII. ANALYSIS\nA. Next of Kin\nPetitioner Laureano challenges the award of settlement proceeds to Rafael\u2019s parents, arguing that her daughter Destiny is the sole beneficiary of Rafael\u2019s estate under the Wrongful Death Act. The meaning of a statute is an issue of law that we decide de novo. Miller v. Kramarczyk, 306 Ill. App. 3d 731, 732 (1999).\nThe Wrongful Death Act created a statutory cause of action that affords a remedy limited to a defined class of individuals upon the wrongful death of another. Porter v. Klein Construction Co., 162 Ill. App. 3d 1, 3 (1987). The Wrongful Death Act must be strictly construed and not rewritten to comport with a court\u2019s idea of orderliness and public policy. Miller, 306 Ill. App. 3d at 732; Forthenberry v. Franciscan Sisters Health Care Corp., 156 Ill. App. 3d 634, 637 (1987). The Wrongful Death Act provides:\n\u201cEvery such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person.\u201d 740 ILCS 180/2 (West 2008).\nThe proceeds of a successful wrongful death suit are apportioned as follows:\n\u201cThe amount recovered in any such action shall be distributed by the court in which the cause is heard or, in the case of an agreed settlement, by the circuit court, to each of the surviving spouse and next of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person.\u201d 740 ILCS 180/2 (West 2008).\nThe Wrongful Death Act does not provide a definition for the statutory phrase \u201cnext of kin,\u201d but our supreme court has held that the phrase is defined as the \u201c \u2018definite blood relatives or a definite class of blood relatives or kinsmen in existence at the time of the death of the deceased who would take his personal property in case he died intestate.\u2019 \u201d Morris v. William L. Dawson Nursing Center, Inc., 187 Ill. 2d 494, 497 (1999) (quoting Wilcox v. Bierd, 330 Ill. 571, 582 (1928), overruled on other grounds, McDaniel v. Bullard, 34 Ill. 2d 487 (1966)). Consequently, Illinois courts look to the laws of intestacy to determine a decedent\u2019s next of kin within the meaning of the Wrongful Death Act.\nHere, Rafael was survived by his parents, a brother, and a child. Pursuant to section 2 \u2014 1(b) of the Illinois Probate Act of 1975 (Probate Act) (755 ILCS 5/2\u20141(b) (West 2008)), when a decedent leaves no surviving spouse but is survived by a descendant, \u201cthe entire estate\u201d is distributed to the decedent\u2019s descendants per stirpes. A posthumous child of a decedent receives the same share of an estate as if the child had been born in the decedent\u2019s lifetime. 755 ILCS 5/2\u20143 (West 2008). Moreover, if \u201cafter his death a decedent has been adjudged to be the father of a child born out of wedlock, that person is heir of his father.\u201d 755 ILCS 5/2\u20142 (West 2008). Under the laws of intestate succession, Rafael\u2019s child Destiny would share in Rafael\u2019s estate to the exclusion of his parents. Forthenberry, 156 Ill. App. 3d at 637; Rallo v. Crossroads Clinic, Inc., 206 Ill. App. 3d 676, 683 (1990). Consequently, Destiny alone is Rafael\u2019s next of kin within the meaning of the Wrongful Death Act, and she alone is entitled to a share of the proceeds of the wrongful death suit.\nThe parents argue that the 1955 amendments to section 2 of the Wrongful Death Act modified the procedure for distribution of the proceeds of a wrongful death suit so that it is no longer based on the laws of intestacy but rather upon actual dependency of the surviving spouse and next of kin as determined by the court. Our supreme court, however, has rejected this same argument, noting that while the legislature \u201cabandoned the laws of intestate succession as the basis for determining how wrongful death proceeds are distributed among the class of eligible beneficiaries, it manifestly retained the laws of intestacy as the means for identifying the members of that class.\u201d Morris, 187 Ill. 2d at 499. See also Dotson v. Sears, Roebuck & Co., 157 Ill. App. 3d 1036, 1047-48 (1987).\nThe circuit court erred when it included Rafael\u2019s parents as beneficiaries of his wrongful death settlement because, pursuant to the Wrongful Death Act, Destiny was Rafael\u2019s sole surviving next of kin. Consequently, we reverse the circuit court\u2019s award of $13,713.26 to Baez and $13,713.26 to Mario Marquez and remand this matter so that those amounts are distributed to Destiny.\nB. Funeral and Burial Expenses\nPetitioner Laureano challenges the award of funeral and burial expenses to Rafael\u2019s parents, contending there was no legal basis for the circuit court to charge those costs to Rafael\u2019s child. Baez responds that the circuit court properly reimbursed them with funds from the wrongful death settlement under the family-expenses provision of the Rights of Married Persons Act (750 ILCS 65/15 (West 2008)).\nWe find that the Wrongful Death Act and the Rights of Married Persons Act do not provide a legal basis to reimburse Rafael\u2019s parents for the estate\u2019s funeral and burial expenses. Moreover, the settlement proceeds in this case cannot be awarded to the estate to reimburse the parents for the estate\u2019s funeral and burial expenses. Consequently, we reverse the $13,041 award to Baez and Mario Marquez and remand this matter with instructions to distribute that amount to Destiny.\nBecause Rafael left Destiny as his next of kin, the administrator cannot recover funeral expenses under the Wrongful Death Act, which gives an administrator a right to sue for such expenses only when no spouse or next of kin survives. 740 ILCS 180/2(c) (West 2008); Chidester v. Cagwin, 76 Ill. App. 2d 477, 484 (1966); Eggimann v. Wise, 41 Ill. App. 2d 471, 487 (1963).\nFurthermore, the Rights of Married Persons Act does not authorize the reimbursement of funeral expenses here. The purpose of the family-expenses provision of the Rights of Married Persons Act, which makes a husband and wife jointly liable for all family expenses, regardless of which spouse incurs expenses, is to protect creditors. Proctor Hospital v. Taylor, 279 Ill. App. 3d 624, 627 (1996). Funeral expenses are considered \u201cfamily expenses\u201d (Fortner v. Norris, 19 Ill. App. 2d 212, 215-16 (1958)), and parents are liable for the funeral expenses incurred by them on behalf of a minor child (Graul v. Adrian, 49 Ill. App. 2d 101, 105 (1964)). However, once a child reaches the age of majority, the parents\u2019 responsibility to support the child ceases, and they may no longer be held liable for the child\u2019s funeral expenses under the Rights of Married Persons Act. See Proctor Hospital, 279 Ill. App. 3d at 628. Because Rafael was not a minor child, the Rights of Married Persons Act does not provide a legal basis to reimburse his parents for his funeral expenses.\nIllinois recognizes a common-law cause of action that can be brought against a tortfeasor either by the decedent\u2019s estate or the surviving spouse for funeral bills incurred as a result of the defendant\u2019s tortious conduct. Saunders v. Schultz, 20 Ill. 2d 301, 309-10 (1960) (permitting a widow to maintain an independent action for the medical and funeral expenses incurred as a result of the wrongful death of her husband). Moreover, the record indicates that Baez sought and received the appointment of special administrator to enable her to prosecute, on behalf of the estate and in addition to the cause of action for pecuniary losses under the Wrongful Death Act, causes of action for physical injury, pain and suffering, and medical and other expenses under the Survival Act and other statutes and laws. The circuit court, however, could not empower Baez in this case to prosecute other causes of action in addition to the wrongful death claim.\nInstead of filing a petition for letters of administration in the probate court, Baez sought the appointment of special administrator of Rafael\u2019s estate. The Wrongful Death Act, in regard to the appointment of a special administrator, reads:\n\u201cIn the event that the only asset of the deceased estate is a cause of action arising under this Act, and no petition for letters of office for his or her estate has been filed, the court *** may appoint a special administrator for the deceased party for the purpose of prosecuting or defending the action.\u201d (Emphasis added.) 740 ILCS 180/2.1 (West 2008).\nBy the very terms of the statute upon which Baez sought appointment as special administrator, the circuit court was not authorized to empower her to prosecute other causes of action in addition to the wrongful death cause of action. Whereas executors and administrators appointed under the Probate Act are given powers to collect and manages assets, pay claims and make distributions (Lindsey v. Special Administrator of the Estate of Phillips, 219 Ill. App. 3d 372, 376 (1991)), the powers and duties of a special administrator are strictly limited to those prescribed by the wrongful death statute (Kubian v. Alexian Brothers Medical Center, 272 Ill. App. 3d 246, 250 (1995)).\nWe note that when a person entitled to bring an action dies before the action is commenced and the cause of action survives, section 13\u2014 209 of the Code of Civil Procedure authorizes the circuit court, where no petition for letters of office for the decedent\u2019s estate has been filed, to appoint a special representative for the purpose of prosecuting the cause of action. 735 ILCS 5/13\u2014209 (West 2008). Although Baez incorrectly cited section 2 \u2014 1008 of the Code of Civil Procedure (735 ILCS 5/2\u20141008(b)(1) (West 2008)) in her petition for appointment, she essentially sought and received the section 13 \u2014 209 special representative appointment that would have enabled her to prosecute a cause of action for physical injury, pain and suffering, and medical and other expenses without the issuance of letters of administration. Nevertheless, the plain terms of section 2.1 of the Wrongful Death Act do not permit, in situations involving the absence of letters of administration, a special administrator to prosecute a wrongful death claim with other causes of action. 740 ILCS 180/2.1 (West 2008).\nWhere Baez\u2019s authority to prosecute a cause of action was limited to the wrongful death claim, there was no legal basis for the circuit court to award Rafael\u2019s parents $13,041 to reimburse them for the estate\u2019s funeral and burial expenses. Consequently, we reverse that award and remand with instructions to distribute that amount to Destiny as the sole beneficiary of the wrongful death claim.\nC. Attorney Fees\nPetitioner Laureano challenges the award of attorney fees to special administrator Baez\u2019s attorney, Etherton. Petitioner contends that Etherton is not entitled to any attorney fees as a matter of law because Etherton\u2019s services were volunteered where Rafael\u2019s parents had no legal interest in the wrongful death claim. Petitioner also complains, for the first time on appeal, that Etherton was not acting on behalf of Rafael\u2019s estate because Baez was not named special administrator of the estate until after the insurance carrier tendered the policy limits. Further, petitioner complains, for the first time on appeal, that, instead of filing a complaint for wrongful death and survival claims, Etherton should have opened a probate case and presented the settlement there. According to petitioner, a probate judge would have immediately recognized the implications of Destiny\u2019s imminent birth and status as Rafael\u2019s only legal heir. Finally, petitioner argues that Etherton is not entitled to fees because it acted contrary to the best interest of Destiny.\nIn response, plaintiff Baez argues that her attorney Etherton was entitled to attorney fees based on their contract to represent the estate, for which Baez was properly appointed special administrator, and an equitable right to recover under the common fund doctrine.\nA trial court\u2019s exercise of discretion in determining reasonable attorney fees is not reversed absent an abuse of discretion, but we apply de novo review where expenses awarded by the court are challenged as a matter of law. Guerrant v. Roth, 334 Ill. App. 3d 259, 262-63 (2002). We find that petitioner has failed to preserve for review any arguments concerning the timing of Baez\u2019s appointment as special administrator and the opening of a probate case. McLaughlin v. Stern berg Lanterns, Inc., 395 Ill. App. 3d 536, 545 (2009) (arguments not raised in the trial court are forfeited on appeal). Petitioner also fails to cite any authority to support the proposition that a proper movant for a special administrator appointment under section 2.1 of the Wrongful Death Act must obtain that appointment before engaging an attorney to investigate or possibly settle a potential wrongful death claim. A party forfeits review of an argument unsupported by citation to authority. Brown v. Tenney, 125 Ill. 2d 348, 362-63 (1988); Universal Casualty Co. v. Lopez, 376 Ill. App. 3d 459, 465 (2007). Nevertheless, the court has a duty to protect the interests of minors and is bound to notice substantial irregularities even though objections were not properly presented on the minor\u2019s behalf. Johnson v. Provena St. Therese Medical Center, 334 Ill. App. 3d 581, 591 (2002).\nPetitioner\u2019s forfeiture notwithstanding, the validity of Baez\u2019s challenged actions, i.e., retaining an attorney to investigate the wrongful death claim and pursue a settlement before the court appointed Baez as special administrator, is supported by the principles for administrating estates under the Probate Act. Specifically, if letters of administration are granted to a person who cared for an estate prior to her appointment as administrator, the grant of the letters validates all acts executed by that person between the death and the appointment, if those acts would have been proper under a regular administration. Ashmore v. Newman, 350 Ill. 64, 81 (1932); Phelps v. Elgin, Joliet & Eastern Ry. Co., 37 Ill. App. 2d 46, 50 (1962). Here, the complained-of acts by Baez were consistent with prosecuting the wrongful death claim as a special administrator under section 2.1 of the Wrongful Death Act and, thus, were validated upon Baez\u2019s September 2008 appointment as the special administrator.\nNext, we address petitioner\u2019s contention that Etherton cannot be paid under the terms of the contract with special administrator Baez because Etherton\u2019s services were on behalf of clients who clearly lacked any legal interest in the wrongful death claim. According to petitioner, Etherton\u2019s services were merely that of a volunteer because Destiny was the sole beneficiary of the wrongful death settlement. Petitioner\u2019s argument, however, overlooks the fact that, because Destiny was born out of wedlock and not acknowledged by Rafael as his child during his lifetime, Destiny had to prove she was Rafael\u2019s child before she could replace Rafael\u2019s parents as his next of kin and sole beneficiary under the Wrongful Death Act. Because Destiny was born out of wedlock six months after Rafael\u2019s death and her paternity was challenged, Rafael\u2019s parents had a legal interest during the prosecution and negotiation of the wrongful death claim as Rafael\u2019s next of kin and beneficiaries.\nRafael was adjudged, in accordance with section 2 \u2014 2 of the Probate Act (755 ILCS 5/2\u20142 (West 2008)), to be Destiny\u2019s father on August 14, 2009, and petitioner did not challenge Baez\u2019s appointment as special administrator until after that adjudication. Although a February 2009 DNA test report indicated a 99.9% probability that Baez and Mario Marquez were Destiny\u2019s biological grandparents, we find no indication in the record that petitioner moved the court to adjudicate the paternity sooner. Consequently, Baez was properly appointed special administrator pursuant to the Wrongful Death Act and acted within her authority to contract with Etherton for legal services.\n\u201c[W]hen an executor or administrator in good faith retains an attorney and that attorney has performed services on behalf of the estate, such attorney is entitled to reasonable compensation regardless of the outcome of the litigation or the fact that the executor is eventually removed.\u201d In re Estate of Breault, 63 Ill. App. 2d 246, 260 (1965). See also 755 ILCS 5/27\u20142 (West 2008) (Probate Act provision that the \u201cattorney for a representative is entitled to reasonable compensation for his services\u201d). When a complaint is settled in favor of the special administrator and proceeds in excess of $5,000 are distributable to a minor, the court allows disbursements and fees to the special administrator and her attorney and the balance is administered and distributed under the supervision of the probate division of the court. 740 ILCS 180/2.1 (West 2008).\nIn this case, however, we agree with petitioner\u2019s contention that Etherton is not entitled to fees because Etherton acted contrary to the best interest of Destiny. An attorney retained by a special administrator of an estate to prosecute a wrongful death action for the benefit of the next of kin owes a fiduciary duty to those beneficiaries. DeLuna v. Burciaga, 223 Ill. 2d 49, 78-79 (2006). That fiduciary duty includes a duty to act in good faith to protect the beneficiaries\u2019 interests. Szymakowski v. Szymakowski, 185 Ill. App. 3d 746, 748 (1989). If an attorney acts in bad faith and against the interest of the beneficiaries of the estate, attorney fees may be denied. Id. As a general principle, \u201cattorneys may not recover fees after representing adverse, conflicting, and antagonistic interests in the litigation.\u201d In re Estate of Kirk, 292 Ill. App. 3d 914, 923 (1997). We review a court\u2019s determination as to whether attorney fees should be allowed or disallowed for an abuse of discretion. Id. Factors to be considered in determining the reasonableness of fees include good faith, diligence, time expended, the size of the estate, the skills and qualifications of counsel, and the novelty and complexity of the issues confronted. Id.\nHere, Etherton acted in the best interest of all the beneficiaries of the estate by negotiating a settlement for the limit of the insurance policy. At that time, the beneficiaries were only Rafael\u2019s parents. Etherton also acted in the beneficiaries\u2019 interests by contesting, on behalf of Rafael\u2019s parents, Destiny\u2019s paternity where she was born out of wedlock and not acknowledged by Rafael as his child during his lifetime. However, in February 2009, DNA testing indicated that Destiny was Rafael\u2019s child, and Baez never contested the validity of those test results. Although Destiny\u2019s paternity was not adjudicated until August 2009, it was inevitable, based on the test results and according to established law, that Destiny would replace Rafael\u2019s parents as his next of kin and sole beneficiary under the Wrongful Death Act. Nevertheless, Etherton never abandoned the argument that Rafael\u2019s parents were entitled to settlement proceeds based on dependency. Cf. Szymakowski, 185 Ill. App. 3d at 749-50 (there was no breach of fiduciary duty and the administrator\u2019s attorney was entitled to fees because the parents of the deceased timely abandoned their claim for wrongful death proceeds where the deceased was survived by children).\nWe find that Etherton breached a fiduciary duty owed to the beneficiary Destiny where Etherton continued to argue, after the DNA test results and contrary to established law, that the determination of eligible beneficiaries for wrongful death proceeds was based on their actual dependency on the deceased rather than on the laws of intestacy. Specifically, in May 2009, Etherton filed a brief in support of plaintiff Baez\u2019s petition to distribute the settlement funds, which argued that the funds should go to Rafael\u2019s parents and brother based on their \u201cactual dependency\u201d on Rafael during his lifetime. Ether-ton\u2019s brief argued that Destiny was not entitled to any funds because her mother, in a previous instance, made an unfounded claim to be pregnant with Rafael\u2019s child, \u201ccontinually harassed\u201d Baez and her family, had \u201ca brief encounter at best\u201d with Rafael rather than an \u201congoing committed relationship,\u201d and was never brought to Rafael\u2019s home and did not know where he lived.\nIn June 2009, Etherton filed a reply brief, which asserted that Rafael\u2019s parents and brother were entitled to settlement funds based on dependency and complained that Destiny failed to provide any facts to prove her dependance on Rafael. At the hearings held in this matter in July and August of 2009, Etherton continued to insist that the actual dependency on Rafael by his parents and brother controlled the distribution of the settlement funds. After the circuit court erroneously awarded settlement proceeds to Rafael\u2019s parents, Etherton opposed petitioner\u2019s motions for reconsideration and substitution of the special administrator, and asked the circuit court to sanction petitioner and her attorney. Moreover, Etherton continued to argue on appeal, contrary to established law, that dependency on the deceased, rather than the laws of intestacy, determines the members of the class of beneficiaries eligible to receive wrongful death settlement proceeds. Because Etherton breached a fiduciary duty owed to Destiny, any award of attorney fees and costs based on Etherton\u2019s contract with the special administrator was an abuse of discretion.\nFurthermore, we reject plaintiff Baez\u2019s claim that Etherton is entitled to attorney fees under the common fund doctrine. This claim is subject to de novo review. Linker v. Allstate Insurance Co., 342 Ill. App. 3d 764, 770 (2003). The common fund doctrine allows an attorney \u201cwho creates, preserves, or increases the value of a fund in which others have an ownership interest to be reimbursed from that fund for litigation expenses incurred, including counsel fees.\u201d Morris B. Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 572-73 (2000). The court\u2019s power to do equity in a particular situation authorizes the award of fees under this doctrine, which is based on the policy to avoid the unjust enrichment of someone who obtains the benefit of a lawsuit without contributing to its costs. Linker, 342 Ill. App. 3d at 770. A claim under the common fund doctrine must show that (1) the fund was created as the result of legal services performed by the attorney, (2) the subrogee or claimant did not participate in the creation of the fund, and (3) the subrogee or claimant benefitted or will benefit from the fund that was created. Id.\nWe find that the common fund doctrine is inapplicable in this case because Destiny\u2019s attorney participated in the creation of the fund. The record establishes that Richmond participated in creating the $100,000 settlement offer. Specifically, correspondence from the insurance carrier and Richmond\u2019s fee petition document Richmond\u2019s contacts with the insurance carrier prior to the settlement offer, investigation of the traffic collision, and monitoring of related court proceedings. Consequently, we reverse the circuit court\u2019s award to Etherton of $22,222 in attorney fees and $762.96 for expenses and remand this matter with instructions to distribute those amounts to Destiny.\nIn her conclusion, petitioner Laureano asks this court to award attorney fees to her counsel in the amount established by their attorney-client contract or, in the alternative, remand this issue for review and approval by the circuit court. Petitioner, however, fails to support this request with any argument, discussion or citation to authority. Brown, 125 Ill. 2d at 362-63; Universal Casualty Co., 376 Ill. App. 3d at 465. Despite petitioner\u2019s forfeiture of this issue, we find that the circuit court\u2019s exercise of discretion in awarding Richmond $8,200 for fees and $920 for costs was more than adequate to compensate Richmond for representing Destiny before the circuit court and for this appeal. Specifically, the time expended, size of the estate awarded to a minor, and complexity of the issues confronted do not justify any further compensation for Richmond.\nD. Substitution of the Special Administrator\nFinally, petitioner Laureano challenges the circuit court\u2019s denial of her motion to substitute the special administrator. Although the need for this relief appears reduced at this point, further litigation here is possible. As discussed above, Baez was properly appointed special administrator where Rafael was not adjudged to be Destiny\u2019s father until August 2009. Upon that adjudication, Destiny became recognized as Rafael\u2019s next of kin and sole beneficiary under the Wrongful Death Act. Moreover, Destiny\u2019s recognized interest in Rafael\u2019s estate was in conflict with the interests of Baez and Mario Marquez. Consequently, Baez was no longer entitled to the appointment of special administrator for Rafael for the purpose of prosecuting the wrongful death action. See 740 ILCS 180/2.1 (West 2008); Mio v. Alberto-Culver Co., 306 Ill. App. 3d 822, 827 (1999).\nAccordingly, we reverse the circuit court\u2019s denial of petitioner\u2019s motion to substitute the special administrator and remand this cause to the circuit court with directions to review petitioner\u2019s motion to appoint Laureano to serve as special administrator.\nIII. CONCLUSION\nWe reverse the circuit court\u2019s award of settlement proceeds to Rafael\u2019s parents; reverse the award of funeral and burial expenses to Rafael\u2019s parents; reverse the award of attorney fees and costs to Ether-ton; and reverse the denial of petitioner Laureano\u2019s motion to substitute the special administrator. The cause is remanded to the circuit court for further proceedings consistent with this opinion.\nReversed and remanded.", "type": "majority", "author": "JUSTICE LAMPKIN" } ], "attorneys": [ "Michael R. Richmond and Michael W. Rathsack, both of Chicago, for appellant.", "Regina E Etherton & Associates, LLC, of Chicago (Regina E Etherton, of counsel), for appellee." ], "corrections": "", "head_matter": "JUDITH BAEZ, Indiv. and as Special Adm\u2019r of the Estate of Rafael Marquez, Deceased, Plaintiff-Appellee, v. GARRETT ROSENBERG, Defendant (Jesenia Laureano, Guardian of the Estate of Destiny Alexia Marquez, a Minor, Petitioner-Appellant).\nFirst District (1st Division)\nNo. 1\u201410\u20140090\nOpinion filed May 9, 2011.\nMichael R. Richmond and Michael W. Rathsack, both of Chicago, for appellant.\nRegina E Etherton & Associates, LLC, of Chicago (Regina E Etherton, of counsel), for appellee." }, "file_name": "0525-01", "first_page_order": 541, "last_page_order": 554 }