In re Estate of Rodden , 2015 IL App (1st) 140798 ( 2015 )

Illinois Official Reports
Appellate Court
In re Estate of Rodden, 2015 IL App (1st) 140798Appellate Court In re ESTATE OF ANGUS RODDEN, a Disabled Person (Robert F.
Caption Harris, Cook County Public Guardian and Plenary Guardian of the
Estate and Person of Angus Rodden, a disabled person,
Petitioner-Appellee, v. Audrey Newton, Respondent-Appellant).
District & No. First District, First Division
Docket No. 1-14-0798
Filed January 12, 2015
Held In an action arising from an order entered by the trial court pursuant to
(Note: This syllabus a petition filed by the public guardian finding that respondent had
constitutes no part of the breached her fiduciary duty to a disabled person for whom she had
opinion of the court but been granted power of attorney over his health care and personal estate
has been prepared by the by improperly writing checks from his account to herself, the trial
Reporter of Decisions court properly denied respondent’s motion to vacate the trial court’s
for the convenience of order, notwithstanding respondent’s contention that the order was
the reader.) void for lack of jurisdiction because the public guardian could only
proceed by issuing a citation pursuant to section 16-1 of the Probate
Act and a summons under section 2-201 of the Code of Civil
Procedure, since the “petition” mechanism used by the public
guardian is a recognized remedy and is the substantive equivalent of a
citation to discover assets and is the functional equivalent of a
summons to the extent that it commanded respondent to appear in
court on a certain date, time and place to account for her actions.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-P-6818; the
Review Hon. Kathleen McGury, Judge, presiding.
Judgment Affirmed.
Counsel on Kienlen & Pietsch, of Wheaton (J. Laurence Kienlen, of counsel), for
Appeal appellant.
Robert F. Harris, Public Guardian, of Chicago (Kass A. Plain and
Christopher Williams, of counsel), for appellee.
Panel PRESIDING JUSTICE DELORT delivered the judgment of the court,
with opinion.
Justices Cunningham and Connors concurred in the judgment and
opinion.
OPINION
¶1 In his waning years, Angus Rodden, age 93, granted his friend and caretaker, Audrey
Newton, a power of attorney over his health care and personal estate. Robert Harris, the
public guardian of Cook County, apparently believing Rodden was not being cared for in an
optimal manner, filed a petition for guardianship over Rodden in the circuit court of Cook
County. The court granted that petition. Newton appeared at the hearing on the guardianship
and resigned as Rodden’s agent under the power of attorney. These resignations were in
writing and filed with the court below. After acquiring guardianship, the public guardian
investigated Rodden’s situation and discovered that Newton had written checks from
Rodden’s account to herself totaling $17,000.
¶2 The public guardian then filed a two-count pleading entitled “Petition for Accounting
under Power of Attorney for Property.” The petition’s prayer for relief asks, among other
things, that the court order Newton to file an accounting within 21 days, hold a hearing on
any improper disbursements, and enter a judgment against Newton for any money
improperly taken. Copies of the checks in question were attached to the petition.
¶3 The petition is largely based on several interrelated provisions of the Illinois Power of
Attorney Act. 755 ILCS 45/1-1 et seq. (West 2012). The first requires agents to maintain
records of any disbursements they make on behalf of the principal and to provide copies of
those records upon request to the principal’s court-appointed guardian. 755 ILCS 45/2-7(c)
(West 2012). The same law also provides that the public guardian may “petition the court for
an order” requiring the agent to produce her record of receipts and disbursements. (Emphasis
added.) 755 ILCS 45/2-7(d) (West 2012). It specifies that if the agent fails to do so and the
court finds that the agent’s failure to provide her record in a timely manner to the public
guardian was without good cause, the court may assess costs and attorney fees against the
agent, and “order such other relief as is appropriate.” Id. Finally, it provides that an agent is
liable to the principal for the amount required to make the principal whole. 755 ILCS
45/2-7(f) (West 2012).
¶4 On April 25, 2012, the trial court entered an order granting the public guardian leave to
file the petition and to serve it upon Newton through a special process server, and setting the
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case for May 18 for “Audrey Newton to appear and for status.” On May 14, 2012, a special
process server personally served Newton with a copy of the April 25 order and the petition,
but not with a summons. Newton does not dispute the validity of this service. After Newton
did not appear at the May 18, 2012, hearing, the court entered an order directing her to file an
accounting by June 8 and to appear on June 14. The same day, the public guardian sent
Newton a letter by regular and certified mail, enclosing a copy of that order. The record
contains a returned certified mail “green card” for the letter indicating it was delivered on
May 19 but which bears no recipient’s signature. On June 14, 2012, after Newton twice
failed to appear in court to respond to the petition, the court entered an order finding that
Newton had breached her fiduciary duty to Rodden and imposed a judgment against her for
$17,000.
¶5 Rodden died two weeks later, on June 30, 2012. On October 15, 2013, the trial court
closed the disabled person’s estate, after the public guardian had accounted for his work on
the matter and distributed Rodden’s assets to various heirs.
¶6 On November 19, 2013, Newton, through counsel, filed a motion to vacate the $17,000
judgment, alleging that it was void for lack of jurisdiction. Newton alleged that the public
guardian could only proceed by issuing a citation under section 16-1 of the Illinois Probate
Act of 1975 (755 ILCS 5/16-1 (West 2012)) and a summons under section 2-201 of the
Illinois Code of Civil Procedure (735 ILCS 5/2-201 (West 2012)). Newton admitted that she
was physically present at the initial guardianship hearing but noted that she had never filed
an appearance in the case. The public guardian responded, essentially arguing that: (1) the
petition was a valid method of proceeding to collect money the agent owed the ward; and (2)
Newton subjected herself to the jurisdiction of the court by participating in the original
guardianship hearing. Newton did not testify at the hearing on the motion to vacate, but her
counsel indicated that Newton did not respond to the court orders or the petition because of
“contempt” and “bad feelings” she held toward the public guardian’s office. After briefing
and argument, the trial court denied the motion to vacate. The court stated that the petition
“does comply with all of the requirements of due process. It notifies the Respondent. It
notifies Ms. Newton. It gives her an opportunity to appear and defend. It advises her of the
consequents of not appearing.” This appeal followed.
¶7 We begin with several basic principles which our supreme court recently reaffirmed. For
its judgment to be valid, the trial court must have jurisdiction over the subject matter and
jurisdiction over the parties. BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311,
¶ 17. A judgment entered by a court without jurisdiction is void and may be challenged at
any time, either directly or collaterally. Id. We review de novo whether the trial court
obtained personal jurisdiction. Id. Personal jurisdiction is established either by service of
process in accordance with statutory requirements or if a party voluntarily submits to the
court’s jurisdiction. Id. ¶ 18. Here, Newton was personally served with the petition, and she
does not contest the validity of that service. Accordingly, the trial court had personal
jurisdiction over her.
¶8 Newton, however, also challenges the manner in which the petition was labeled,
essentially contending that the public guardian sought the wrong remedy, and she leapfrogs
that into an argument that the trial court had no jurisdiction. She correctly notes that the
public guardian could have accomplished a similar result by framing his pleading as a
citation to recover assets and serving it upon Newton along with a summons. However, the
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Power of Attorney Act specifically states that a guardian may proceed instead by “petition,”
and the context of the relevant section makes it clear that the petition is not a new and
independent proceeding requiring a new case number and judicial assignment, but rather is in
the nature of a third-party counterclaim brought under the aegis of the existing guardianship
case. 755 ILCS 45/2-7(d) (West 2012). Section 2-201 of the Illinois Code of Civil Procedure
also specifies that actions are commenced by “complaint,” unless otherwise expressly
provided by statute. 735 ILCS 5/2-201 (West 2012). Therefore, the “petition” mechanism
used by the public guardian is statutorily recognized; the remedies were not as limited as
Newton contends. More importantly, it is well established that “when analyzing a party’s
request for relief, courts should look to what the pleading contains, not what it is called.”
In re Haley D., 2011 IL 110886, ¶ 67. A plain reading of the petition reveals that it is the
substantive equivalent of a citation to recover assets. Similarly, the court order accompanying
the petition was the functional equivalent of a summons. It commanded Newton to appear
and account before the court on a specified date, time and place.
¶9 Due process requires that before a court deprives someone of property, such as by
entering a money judgment, the party is entitled to notice and an opportunity for a hearing
appropriate to the nature of the case. Passalino v. City of Zion, 237 Ill. 2d 118, 124 (2009).
The various notices issued here more than comport with basic due process requirements.
¶ 10 The record contains no transcript of the original guardianship hearing at which Newton
appeared and resigned her agency under the power of attorney. Because we resolve the issues
presented on the grounds set forth above, we need not address whether Newton’s
participation at that hearing and any statements she made orally subjected her to the
jurisdiction of the court.
¶ 11 For these reasons, we find that the trial court correctly denied the motion to vacate the
judgment.
¶ 12 Affirmed.
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