Kreisman Law Offices Professional Corporation
A breach of contract case was interrupted by the death of the individual plaintiff, Theodore Sarche. Mr. Sarche’s death led to his law firm moving to appoint a special representative under Section 2-1008(a) of the Illinois Code of Civil Procedure.
An affidavit was later supplied by Sarche’s sole surviving child, Michael Sarche, who attested that he authorized his father’s law firm to continue prosecuting the case against the defendant.
Michael Sarche did not open a probate estate because his father had limited assets. Michael was living in Colorado. Based on Michael’s instructions, the law firm moved to substitute Carol Mohica, a paralegal at the law firm, to act as plaintiff under the special representative piece of that statute.
In March 2005, the trial judge granted the motion to substitute the parties and the matter continued to a bench trial in 2007. But the defendant, Cvejin, won the bench trial in 2007 and requested sanctions under Rule 137 because it was argued that Michael had not signed the 2-1008(b) motion.
In March 2010, a second judge granted the request for sanctions but declined to vacate the order appointing Mohica.
On appeal, the Illinois Appellate Court unanimously ruled that the sanctions part of the March 2010 order was unjustified but further concluded that the order granting the motion to substitute party was also done in error. One of the justices, Justice Robert E. Gordon, concluded that the majority’s opinion on Section 2-1008(b) was “mere obiter dictum and is not binding authority.”
The appellate court pointed out that the operative language of Section 2-1008(b) for this case was the word “party.” The statute requires that should a party to an action die, but the proceeding survives, and the proper party or parties may be substituted by order of court upon a motion or petition to substitute.
In this case, the motion to substitute was brought by the attorneys for a dead man and was not signed by the sole surviving heir, Michael Sarche. Even though Michael later provided an affidavit saying that he gave authority to the law firm, the appellate court found that the statutory language required the verified motion to be signed by an interested party, meaning an heir, legatee and/or an executor or independent representative of an estate of a decedent, rather than a stranger. Here, the law firm’s paralegal signed the petition to substitute.
The court also stated that in general, “the relationship of attorney and client is terminated by the death of the client, and thereafter, the authority of the attorney to represent the interest of a deceased client must come from the personal representatives of the decedent.” Clay v. Huntley, 338 Ill.App.3d 68 (1980). Accordingly, the appellate court found that the law firm had no authority to represent Theodore Sarche without authorization by his personal representative. The named plaintiff, the paralegal, was clearly not a party to the original breach of contract lawsuit.
In conclusion, the court found that Michael was required to file the verified motion requesting plaintiff’s appointment. It was improper for plaintiff to verify the motion requesting her own appointment inasmuch as she was not a party by the definition provided under the statute. The court found that the Circuit Court was correct in its ruling in March 2010 that the Section 2-1008(b) petition was granted in error.
Mohica v. Cvejin, 2013 IL App. (1st) 111695 (March 29, 2013).
Kreisman Law Offices has been handling commercial litigation and business litigation lawsuits for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Naperville, Summit, Deerfield, Highwood, Skokie, Chicago (Pulaski Park), Schiller Park, Mount Prospect, Buffalo Grove, Winnetka and Chicago (Midway), Ill.
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