The Illinois Appellate Court for the 1st District has affirmed a trial court’s decision regarding a settlement. Gary Hines and Lisa O’Rourke were in Chicago visiting Hines’s father, Norman, near the end of 2012. As the visit was ending, Norman drove the two to the airport. When they arrived, Norman Hines and O’Rourke began to take their luggage out of the trunk. E. James Davis was in a parking space behind them trying to pull out. His foot became trapped between the gas pedal and brake and the car accelerated striking both Norman Hines and O’Rourke and pinning them against the car. Both Norman Hines and O’Rourke suffered severe injuries and filed a lawsuit against Davis.
Hines and O’Rourke hired a lawyer to represent both of them but filed separate lawsuits. When Hines died on May 20, 2013, David Hines and Diane Galante filed as special administrators of Norman Hines’s estate and continued the lawsuit on the estate’s behalf.
Davis offered $1.3 million, the limit of his policy of insurance, in exchange for dismissal of all of the claims for both plaintiffs. The plaintiffs were given 21 days to respond, and after the 21 days the lawyer told the judge that they had failed to reach an agreement.
Hines and O’Rourke then hired a separate attorney for the later proceedings. On Aug. 14, 2013, that court held a settlement conference about Hines and O’Rourke’s demand to settle their cases. The court entered an order to continue the discussion when the conference was over, pending the waiver of two potential heirs of Norman Hines’s trust.
The second attorney sent Hines and O’Rourke a “Conditional Settlement Agreement” whereby O’Rourke would receive $250,000 from Hines’s insurance policy and Gary Hines would receive 16% of the settlement after the first lawyer’s fees and costs were excluded.
A draft settlement agreement stated that “This settlement is conditional upon verification that . . . Davis does not possess independent assets, which will warrant continuing litigation.”
Hines and O’Rourke did not sign the agreement and, instead fired the second lawyer and hired a third lawyer. The third lawyer appeared in court for the first time on September 5, 2013 to inform the judge that Gary and O’Rourke did not agree to the settlement. However, the Estate of Norman Hines made an oral motion to enforce the settlement and the following day a Cook County judge granted the motion. Hines and O’Rourke moved for reconsideration. At the hearing, the first lawyer admitted that no probate estate had been opened and therefore, David Hines and Diane Galante lacked authority to bring a survival action on behalf of the estate. In addition, the estate dismissed the survival act claim.
On May 19, 2014, the then presiding judge denied the motion to reconsider partly relying on notes that she took during the August 14, 2013 conference. The judge recalled that O’Rourke agreed to the $250,000 from Norman’s insurance because O’Rourke’s insurers were claiming a lien against any award from Norman’s estate, but would have no claim against the 16% awarded to Hines.
The judge found the agreement enforceable. Gary Hines and O’Rourke moved for reconsideration, stating that the first attorney would testify that she never obtained written consent and also that prior to that August 14 settlement conference, she left Hines and O’Rourke unaware of a trust created by Norman and intended to distribute the corpus equally among his five children.
On July 9, 2014, the judge “held that nothing in the offer of proof could overcome her vivid memory of the settlement conference and [Hines’ and O’Rourke’s] agreement on August 14, 2013 to the specific terms set for the recovery.” Hines and O’Rourke appealed.
The appellate court said that it would not overturn the trial judge’s ruling unless it was against the manifest weight of the evidence. The court cited language that additions “which contradict the clear and unambiguous contents of the record must be supported by something other than the clear memory of the judge.”
However, in this case, no records of the Aug. 14, 2013 meeting indicated that Hines and O’Rourke did not agree to settle. The order simply allowed a continuation in regards to two other potential claimants. The appeals panel held that the trial judge was justifiably relying on her memory of the conference when no records contradicted the judge’s memory. Accordingly, the Illinois Appellate Court affirmed the trial judge’s decision enforcing the settlement.
Lisa O’Rourke and Gary Hines v. E. James Davis, 2015 IL App (1st) 141726-U (Feb. 24, 2015).
Kreisman Law Offices has been handling automobile accident, pedestrian accident cases, truck accident cases, bicycle accident cases and construction accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Palatine, Palos Hills, Wheaton, Hinsdale, Frankfort, Gurnee, Schiller Park, Evergreen Park, Elk Grove Village, Riverside, Rosemont, Arlington Heights and Park Forest, Ill.
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