Hasse v. Arbor of Itasca, Inc. ( 2002 )

No. 2--00--0862
_ ________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
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In re ESTATE OF MARY T. HASSE, ) Appeal from the Circuit Court
an Alleged Disabled Person ) of Du Page County.
)
) No. 99-P-546
)
(Fritz Hasse, Appellant, v. ) Honorable
Arbor of Itasca, Inc., ) Robert E. Byrne,
Appellee). ) Judge, Presiding.
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JUSTICE O'MALLEY delivered the opinion of the court:
On May 28, 1999, Dewey Pierotti, the public guardian of Du Page
County, filed a petition for appointment of a guardian for the person and
estate of Mary T. Hasse (Mary) on the ground that she was disabled. On the
same day, the court appointed a guardian ad litem for Mary and, pursuant to
section 11a--4 of the Probate Act of 1975 (Act) (755 ILCS 5/11a--4 (West
1998)), appointed Dewey Pierotti as the temporary plenary guardian for the
estate and person of Mary.
On June 2, 1999, Pierotti entered into a contract on Mary's behalf
with Arbor of Itasca, Inc., Nursing Home (Arbor) whereby Mary would reside
at and receive care from Arbor.
On June 8, 1999, the summons for the appointment of a guardian for a
disabled person directed to Mary was returned with an indication that Mary
had not been served and with a further notation that she had been
discharged on June 2 from a hospital where she had been a patient. On June
14, 1999, Fritz Hasse (Fritz), Mary's husband, filed a petition in the same
proceeding seeking his own appointment as guardian of the estate and person
of Mary on the ground that she was disabled. Also on June 14, Fritz filed
a motion seeking an order allowing him to visit Mary. The motion for
visitation recited that Pierotti's petition for the appointment of a
guardian for Mary had been filed without any notice to Fritz.
On July 1, 1999, the answer and report of the guardian ad litem was
filed. The guardian ad litem reported that Mary was in need of
guardianship and that family problems had put Mary's health at risk and
further recommended that Pierotti continue to serve as the temporary
guardian of the person and estate of Mary.
On July 1, 1999, the court appointed Pierotti the plenary guardian of
the estate and person of Mary and also appointed Fritz the plenary guardian
of the estate of Mary. Also on July 1 the court entered and approved the
answer and report of the guardian ad litem.
On July 29, 1999, the court issued an order in response to the
emergency motion of Fritz to transfer Mary from Arbor. The court had
conducted an in camera interview with Mary and received evidence from Fritz
and from Mary's daughter Cindy and heard arguments from counsel for Fritz.
The court ordered Pierotti to effect the discharge of Mary from Arbor and
to establish Mary's residence with her daughter Cindy.
On December 23, 1999, Pierotti filed a petition for the payment of
Mary's expenses, including expenses for her stay at Arbor. On February 17,
2000, Fritz, as guardian of the estate, filed his response to the petition
for the payment of Mary's expenses. His response asserted, inter alia,
that neither he nor Mary, prior to her adjudication of disability,
consented to her placement at Arbor or the medical care she received there.
Fritz prayed that the petition for the payment of Mary's expenses be
denied and that any person or entity having a claim against the estate be
required to file a claim and furnish proof as to the necessity and value of
the goods and services provided. On March 24, 2000, Arbor, the appellee,
filed its appearance and its claim for $8,049.08 plus costs and attorney
fees against Mary's estate.
On April 13, 2000, Fritz filed a motion to dismiss Arbor's claims on
the grounds that the order of May 28, 1999, appointing Pierotti as the
temporary plenary guardian was void and that the contract underlying the
claim of Arbor was equally void. On June 1, 2000, the court entered an
order denying Fritz's motion to dismiss the claim of Arbor, and on June 29,
2000, the trial court entered an order allowing the claim of Arbor against
the estate. Fritz filed a timely notice of appeal pursuant to Supreme
Court Rule 304 (155 Ill. 2d R. 304), praying that the orders of June 1,
2000, and June 29, 2000, be vacated and held for naught.
Fritz argues that the court was without jurisdiction to appoint
Pierotti because Mary was not personally served with a copy of the petition
and summons pursuant to section 11a--10(e) of the Act (755 ILCS 5/11a--
10(e) (West 1998)). Fritz also argues that nothing in the record
establishes the service of notice required by section 11a--10(f) (755 ILCS
5/11a--10(f) (West 1998)) on any of the relatives of Mary named in either
Pierotti's petition or Fritz's own petition. Fritz cites In re Estate of
Steinfeld, 158 Ill. 2d 1 (1994), and In re Guardianship of Sodini, 172 Ill.
App. 3d 1055 (1988), for the proposition that compliance with sections 11a--
10(e) and (f) is jurisdictional.
However, as the foregoing chronology demonstrates, Pierotti entered
into the contract with Arbor in his capacity and during his tenure as the
temporary plenary guardian of Mary, i.e., before his and Fritz's
appointments as Mary's guardians. Section 11a--4 provides, inter alia,
that prior to the appointment of a guardian "the court may appoint a
temporary guardian upon a showing of the necessity therefor for the
immediate welfare and protection of the alleged disabled person or his
estate on such notice and subject to such conditions as the court may
prescribe." 755 ILCS 5/11a--4 (West 1998).
Sections 11a--10(e) and (f) specify the notice requirements to the
respondent and the respondent's relatives regarding petitions filed
pursuant to section 11a--8 of the Act (755 ILCS 5/11a--8 (West 1998)).
Section 11a--8 concerns petitions for the adjudication of disability and
for the appointment of a guardian, as opposed to section 11a--4, which
relates to the appointment of a temporary guardian. The express language
of section 11a--10 limits its application to petitions filed pursuant to
section 11a--8. Thus, by virtue of the plain language of the statute, the
notice requirements of section 11a--10 do not apply to proceedings
conducted pursuant to section 11a--4 for the appointment of a temporary
guardian. In addition, the plain language of section 11a--4 requires such
notice as the court may prescribe, as opposed to the specific statutory
notice requirements contained in section 11a--10. Moreover, section 11a--4
provides, "[T]he court may appoint a temporary guardian upon a showing of
the necessity therefor for the immediate welfare and protection of the
alleged disabled person." (Emphasis added.) 755 ILCS 5/11a--4 (West 1998).
Section 11a--10 requires notice to certain parties 14 days before a section
11a--8 hearing. Requiring such notice in connection with a section 11a--4
appointment of a temporary guardian would undermine the clear purpose of
the provisions regarding temporary guardians, which is to attend to the
immediate needs of the alleged disabled person.
The orders of June 1, 2000, denying the motion to dismiss the claim
of Arbor and June 29, 2000, allowing the claim of Arbor are affirmed, and
this matter is remanded for further proceedings consistent with this
opinion.
Affirmed and remanded.
GEIGER and GROMETER, JJ., concur.