In re Estate of Harper , 2022 IL App (1st) 170267-U ( 2022 )

2022 IL App (1st) 170267-UNOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
SECOND DIVISION
June 21, 2022
No. 1-17-0267
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re ESTATE OF ELIZABETH JEAN HARPER, an ) Appeal from the
alleged disabled person, ) Circuit Court of
) Cook County
)
(Mary Growe, petitioner-appellee and cross-appellant, J. ) No. 13 P 3158Matthew Pfeiffer, Esq., cross-appellant, Kevin Edward )
White, cross-petitioner-appellant and cross-appellee, and ) The Honorable
Elizabeth Jean Harper, respondent-appellant and cross- ) Carolyn Quinn,
appellee). ) Judge Presiding.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Justices Howse and Lavin concurred in the judgment.
ORDER
¶1 Held: Trial court did not err in dismissing motion for sanctions for lack of jurisdiction on the
basis that it was not filed within 30 days of final judgment in the case.
¶2 This cross-appeal arises out of an intrafamily dispute concerning the proper party to act as
either power of attorney or guardian on behalf of Elizabeth Jean Harper (Harper), an alleged
disabled person. The primary parties to this litigation are two siblings, Mary Growe (Growe) and
Kevin Edward White (White), who are Harper’s niece and nephew. The principal issue in the
litigation was Harper’s legal capacity to execute two Illinois Statutory Short Form Powers of
Attorney on March 18, 2013 (the 2013 POAs). One was for health care and appointed White as
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Harper’s agent to make decision for her concerning her personal and medical care; the second was
for property and appointed Sarah L. Esmond as Harper’s agent in that regard. Both of the 2013
POAs revoked prior powers of attorney that had been executed by Harper, specifically two Illinois
Statutory Short Form Powers of Attorney that Harper had executed on August 2, 2001 (the 2001
POAs). Those 2001 POAs had appointed Helen White (Helen) as Harper’s agent for health care
and property, and it appointed Growe as successor agent for health care. Helen, who passed away
in 2013, is the mother of Growe and White and the sister of Harper. Alvin White (Alvin) was
Helen’s husband and the father of Growe and White.
¶3 On appeal, White and Harper argue that the trial court erred in dismissing their posttrial
motion for sanctions on the basis that it was untimely filed more than 30 days after final judgment.
On cross-appeal, Growe argues that the trial court erred by granting a motion for directed finding
against her on her claim that Harper lacked capacity to execute the 2013 POAs and thereby revoke
the 2001 POAs, and Growe and her attorney, J. Matthew Pfeiffer (Pfeiffer), argue that the trial
court abused its discretion by dismissing their motion for sanctions also.
¶4 I. BACKGROUND
¶5 A. Pleadings and Procedural History
¶6 The litigation commenced on May 31, 2013, when Growe and Helen filed a petition for the
appointment of a guardian of a disabled person for Harper, then age 87, on the basis of Harper’s
alleged “mental deterioration, severe cognitive impairment, and limited physical capabilities.”
That petition alleged that Harper had appointed agents under the Illinois Power of Attorney Act
(755 ILCS 45/1-1 et seq. (West 2012)) but that the identity of those agents was “in dispute.” After
the filing of the petition, the trial court appointed Kerry R. Peck to serve as guardian ad litem
(GAL) on behalf of Harper. Helen died shortly after the filing of the petition.
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¶7 On January 24, 2014, Growe filed a second amended petition for relief under the Illinois
Power of Attorney Act (id.), which is one of the operative pleadings on which the case proceeded
to trial. It raised a challenge only to the power of attorney for health care. In it, Growe sought a
finding under section 2-10(a) of the Illinois Power of Attorney Act (id. § 2-10(a)), that Harper
lacked capacity to control or to revoke the 2001 POA for health care and to implement the 2013
POAs. It also sought an order declaring Growe as Harper’s agent for health care, based on the
2001 power of attorney for health care.
¶8 Separately, on August 21, 2013, White filed a cross-petition for the appointment of a guardian
for Harper, requesting that he be appointed guardian of Harper’s estate and person. Additionally,
on March 10, 2014, White filed an answer to Growe’s second amended petition for relief under
the Illinois Power of Attorney Act, in which he asserted by way of affirmative matter, that Growe
was not qualified to serve as Harper’s power of attorney for health care, based in part on Growe’s
plans to move Harper from her longtime home in Sokie to Growe’s home in rural Wisconsin.
¶9 Generally speaking, the record throughout this time reflects a recognition by the parties and
the trial court that provisions of the Illinois Power of Attorney Act (id. § 1-1 et seq.) and the
Probate Act of 1975 (755 ILCS 5/1-1 et seq. (West 2012)) precluded the appointment of any
guardian for Harper if she had made any valid appointment of an agent as power of attorney,
whether under the 2013 POAs or the 2001 POAs. See 755 ILCS 45/2-10(g) (West 2012) (“Absent
court order directing a guardian to exercise powers of the principal under the agency, a guardian
will have no power, duty or liability with respect to any property subject to the agency or any
personal or health care matters covered by the agency”); 755 ILCS 5/11a-17(c) (West 2012)
(“Absent court order pursuant to the Illinois Power of Attorney Act directing a guardian to exercise
powers of the principal under an agency that survives disability, the guardian has no power, duty,
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or liability with respect to any personal or health care matters covered by the agency”); id. § 11a-
18(e) (similar provision to section 11a-17(c) concerning “any property subject to the agency”).
¶ 10 Accordingly, on March 20, 2014, the parties appeared in court to discuss the order and
manner in which the issues of the validity of the powers of attorney and the appointment of a
guardian would be resolved at trial. The trial court stated that the “threshold issue” would be
whether Harper had legal capacity to execute the 2013 POAs. The court went on to state that, if
Harper had the legal capacity to do that and thereby to revoke the 2001 POAs, “then I think the
only other issue that remains is whether the agent under [the 2013 POAs] is fulfilling his
obligation. *** [I]f the finding is yes to that, then we’re done.” The court further explained that, if
it found that Harper lacked capacity to execute the 2013 POAs, “then we go back to the 2001
[POAs], and the question is: Assuming capacity to grant that power of attorney[,] are the
obligations of that agent being fulfilled as they should be? If the answer is yes, we’re done.” The
court then stated in conclusion, “So it’s really only if I find that there’s no valid power of attorney
of either year to enforce that we then proceed to the cross petitions for guardianship.”
¶ 11 This was memorialized by the trial court’s written order entered on March 25, 2014, which
provided that (1) the court would conduct an evidentiary hearing “with respect to the validity of
the 2013 Powers of Attorney, including, but not limited to, a determination as to whether or not
Ms. Harper was competent to execute the 2013 Powers of Attorney;” (2) “if necessary, conduct an
evidentiary hearing to determine whether or not the 2013 Power of Attorney is being properly
exercised;” (3) “if necessary, conduct an evidentiary hearing with respect to whether or not the
2001 Power of Attorney for Health Care is being properly exercised;” and (4) “if necessary,
conduct an evidentiary hearing with respect to the appointment of a guardian for Ms. Harper.”
¶ 12 The issue arose again on May 5, 2014, when, in a discussion about narrowing the issues to
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be tried, the court questioned the attorneys about whether the case would ultimately turn on the
issue of the best health care plan for Harper, regardless of the court’s determination about Harper’s
legal capacity to execute the 2013 POAs. With respect to order of March 25, 2014, White’s
attorney stated that the sequence of issues had been set forth in it “more out of a sequence of logic
*** than any pleadings. And that’s why the phase ‘if necessary’ was *** in both of these.” White’s
attorney pointed out that no issue involving the health care that Harper was presently receiving
had ever been raised in any pleading, by either Growe or the GAL. The trial court stated that it
understood that that fact, but nevertheless it anticipated an issue to be raised regarding the existing
plan of care for Harper “based on statements of everyone in court over all of these hearings.” At
the conclusion of that hearing, the parties indicated that they wished to proceed to trial concerning
the validity of the 2013 POAs instead of agreeing to resign their respective agency appointments
to allow the case to proceed directly to the issue who should serve as guardian for Harper.
¶ 13 On May 7, 2014, as the bench trial was partially underway in this case, the GAL was granted
leave to file a separate petition to appoint a third party as independent guardian of Harper’s person.
The GAL informed the trial court that he was doing so because of the “palpable tension” shown
by the parties at trial and the fact that no matter who won, future cooperation among the family
seemed unrealistic. The trial court stated that whether the GAL’s petition ever needed to be
addressed would depend on the outcome of the hearing on the powers of attorney. On September
25, 2014, the GAL filed an amended petition for the appointment of a guardian of Harper, seeking
to have independent third parties appointed as guardian of Harper’s person and of her estate.
¶ 14 B. Bench Trial
¶ 15 Susan Dawn testified at trial that she is an attorney specializing in estate planning who first
met Harper in 2001 to prepare a will, trust, and powers of attorney for her. In 2013, John Kelty,
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Harper’s financial adviser, requested that Dawn talk with Harper again about whether she wanted
to make changes to her estate plan. When they spoke, Harper told her about an unexpected incident
in which Helen, Alvin, and Growe had come to Illinois to take Harper to lunch and ended up
driving her back to Wisconsin. They wanted her to move to there. She told them that she did not
want to and wanted to be taken home. Harper was quite angry about it. On March 8, 2013, Dawn
and Kelty met with Harper at her house. They discussed family pictures, with Dawn confirming
that Harper knew who everyone was. In that discussion, Dawn asked Harper if she would prefer
to have White act as her power of attorney for health care, and Harper stated that was what she
wanted. As they were talking that day, Dawn was evaluating whether Harper had the level of
competence necessary to make decisions about who she wanted to help her, by ensuring that was
making appropriate eye contact, following the conversation, and expressing understanding
appropriately. At no point during her interaction with Harper that day did Dawn get the impression
that Harper was not competent or did not understand what was happening and being discussed.
Dawn thereafter prepared documents reflecting their conversation. She presented these to Harper
at a meeting at her house the next week. They went through the documents together and confirmed
that they reflected the changes she had wanted to her power of attorney, such that White, not Helen,
would be primarily responsible for making medical decisions for her. Dawn witnessed Harper sign
the document, and Dawn had no concern at that time about whether Harper was of sound mind.
¶ 16 Dawn’s husband, Richard Gonzalez, testified that he was present as a witness to Harper’s
signing of the powers of attorneys in 2013. Nothing Harper did or said that day raised any concerns
in his mind that Harper did not know what was going on. She seemed to be paying attention and
to comprehend what was being said.
¶ 17 John Kelty testified, although the full transcript of his testimony is not included in the record
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on appeal. According to the trial court’s summarization of his testimony in its ruling on the motion
for directed finding, Kelty testified that he is Harper’s financial advisor and has known her since
1987. He visited Harper two times in January 2013. On both visits, Harper complained about the
trip to Wisconsin, telling Kelty that Growe, Alvin, and Helen had taken her out on the guise of
going to lunch but instead took her to a senior facility. She spoke about the incident for 15 minutes,
was very upset about it, and wanted to make some changes. She asked him if something could be
done to protect her and keep her in her home. Kelty later met with Dawn and Harper at her home
in early March 2013. He observed Dawn and Harper review a large family photograph and discuss
who might be good candidates to serve as successor power of attorney. On March 18, 2013, Kelty
again met with Dawn and Harper at Harper’s house. Dawn’s husband was also there. Dawn read
through the documents with Harper and explained them. With regard to the medical directives,
Dawn read each option to Harper fully. After she read the first one, Harper identified that one as
the one she wanted. Kelty believes that Harper was mentally competent in March 2013 when
she executed the powers of attorney. He bases this opinion on his visits with her and her ability to
recall events that occurred during that timeframe. For example, when signing Harper had asked
whether she should sign as “Betty Jean” or “Elizabeth,” which had been an ongoing issue in
dealing with her since 1987. Also, she had recognized that Kelty’s family Christmas card had
arrived earlier than in past years and could identify Kelty’s family members on the card. Her
conversation with Dawn about the family photo and who could serve as power of attorney had
been a normal conversation with a lot of detail on every topic.
¶ 18 Aaron C. Malina, Ph.D., testified that he is a board-certified clinical neuropsychologist who
had first evaluated Harper in January 2013. She was referred to him for evaluation of her cognitive
functioning by her primary care physician. Dr. Malina testified at length concerning the testing he
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conducted on Harper that day on matters such as her orientation, comprehension, memory,
organization and planning abilities, and visual processing. He testified that her test results showed
a clinical pattern typical for a moderate stage of posterior cortical atrophy (PCA), which he
described as a type of dementia related to Alzheimer’s in which she was unable to process visual
information perceived from the left side of her visual field. He testified that she could focus on
something for a brief time but would rapidly forget information. He described her as having
significant deficits in her language skills, executive functioning, ability to shift attention,
organizing, and planning higher order thinking abilities.
¶ 19 Dr. Malina testified that, based on his evaluation of Harper in January 2013, she would not
have had the capacity to understand the contents of the powers of attorney documents that she
signed in March 2013. His basis for this opinion included the difficulties she experienced with left-
sided visual perception and with retaining information that she read for long enough to make an
informed decision about it. He testified that she “may have a general understanding that the
purpose was to designate someone to help take care of her,” but she lacked “the capacity to fully
understand the meaning or implication of the overall document.” He testified that if a person sat
with Harper to go over the power of attorney and paraphrased it for her, Harper may have been
able to understand either part of or the whole of the explanation, depending on the simplicity of it.
However, he did not believe she would have been able to retain the information over the necessary
period to make an informed decision about it.
¶ 20 Only a few pages of the testimony of Alvin are included in the record on appeal, but it was
also summarized by the trial court in its ruling on the motion for directed finding. According to
that summarization, Alvin testified that he had known Harper for 65 years. In 2011, he began
noticing changes in Harper’s mental capacity and her ability to remember things. In early 2013, he
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and Helen took Harper to the Villa Rosa in Wisconsin. Harper was under the impression that Helen
and Alvin were asking for her advice on the facility for themselves. Halfway through the interview,
Harper realized what was occurring and clammed up. Helen refused to place Harper at Villa Rosa
knowing she did not want to be there.
¶ 21 The testimony of Growe’s husband, Mark Growe, is similarly not included in the record on
appeal. According to the trial court’s summarization, he testified that he had known Harper for 38
years and began to notice a change in her mental capacity in 2008 or 2009. She would seem
disoriented and would answer questions in a general and nonspecific way, which was a change for
someone he knew to be highly intelligent. Mark testified that Harper said nothing regarding the
2013 visit to the Villa Rose in Wisconsin.
¶ 22 Growe’s own trial testimony is also only partially included in the record on appeal. In it,
Growe testified at length about e-mail communications among herself and her siblings regarding
Harper’s declining condition in 2011-2012 and what needed to be done to provide for Harper’s
care. At that time, Growe believed that Harper needed 24-hour supervision but was not then
receiving it from Growe’s brother, Tom, who lived with Harper but was not there all the time, and
from her caregivers. Growe wanted Harper to be in an environment of engagement,
encouragement, and participation, and she was concerned that Harper’s caregivers were not
providing this kind of environment for her.
¶ 23 On cross-examination, Growe testified that she had accompanied Helen and Alvin in January
2013 when they took Harper to Wisconsin to visit the Villa Rosa facility. Prior to that day, Growe
had not told Harper that she was going to take her to Wisconsin to show her an elder care facility.
She did not know if her mother told her and doubts her father did. Growe testified that, the night
before they went to the facility, she told Harper that they were going to look at an apartment for
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Harper and her dog as a possible place to live. After the tour was over, Growe did not talk to Harper
about leaving her home to relocate to the facility in Wisconsin. On redirect examination, Growe
testified that Harper had a brief assessment by the manager of the senior living facility. Harper
seemed to be tired from all the questioning, so Growe took it upon herself to stop the assessment.
They then went to lunch, where Harper appeared to enjoy herself and did not seem distressed.
¶ 24 Nishad J. Nadkarni, M.D., testified by evidence deposition that he is a forensic psychiatrist
who saw Harper on July 22, 2013, at the request of GAL Kerry Peck, to evaluate the necessity of
a guardianship and her competency to independently manage her personal and financial affairs. In
his report, he wrote that Harper was “totally incapable of making personal and financial decisions
due to the severity of her PCA dementia.” This is a form of Alzheimer’s dementia that involves
damage to the areas of the brain that enable a person to identify what he or she sees. He testified
that she had symptoms and signs consistent with “a long history of this deterioration for many
years.” Dr. Nadkarni testified that, based on the fact that Harper’s dementia had been progressing
since 2009, his opinion to a reasonable degree of certainty was that she would not have been
competent in March 2013 to understand the powers of attorney she was signing. The dementia she
was experiencing by this time would not wax and wane over time in terms of capacity. On cross-
examination, Dr. Nadkarni testified that he was aware that Harper was being treated by Dr. Marni
Goldberg in March 2013, within days of her signing of the 2013 POAs, but he had never reviewed
any of Dr. Goldberg’s medical records, spoken to Dr. Goldberg, or reviewed her deposition
testimony given with respect to Harper.
¶ 25 C. Directed Finding
¶ 26 After Growe’s attorney indicated that Growe was resting her case, White filed a motion for
directed finding under section 2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West
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2014)). In that motion, White argued that Growe had failed to make a prima facie showing that
Harper lacked capacity to know and understand what she was doing when she executed the 2013
POAs. In response, Growe argued that she had demonstrated that Harper did not have the requisite
mental capacity to effectuate the 2013 POAs. Specifically, she relied upon the testimony by Dr.
Medina and Dr. Nadkari indicating that, in March 2013, Harper would not have understood what
she was doing, the gravity of the documents she was signing, and what they meant.
¶ 27 The trial court granted the motion for a directed finding. After extensively reviewing the
evidence that had been adduced during Growe’s case-in-chief, the trial court determined that the
evidence fell short of demonstrating by clear and convincing evidence that Harper lacked the
capacity to understand the scope, effect, and character of her actions in executing the 2013 POA.
¶ 28 After granting the motion for directed finding, the trial court then stated that it had re-
reviewed Growe’s operative pleading and the “only reason stated for revocation in that petition
appears to be lack of capacity. So that appears to conclude that petition.” The court went on to
state that, given its determination that the 2013 POAs were valid, sections 11a-17 and 11a-18 of
the Probate Act (755 ILCS 5/11a-17, 11a-18 (West 2012)), along with “another section of the
Power of Attorney Act that I’m drawing a blank on,” would “preclude the petitions — the cross-
petitions for guardianship from going forward at this point.” The court then stated, “We have
further petitions that need to be filed, fee petitions, I expect.” The court directed the parties to
prepare a written order and, in response to a question about how the guardianship petitions should
be reflected in it, the trial court stated, “I think that if the finding is that there are valid powers of
attorney in place and there is no other reason that’s been requested under the pending 2-10 petition
to seek to revoke those powers of attorney, then a guardian cannot be appointed under 11a-17,
11a-18 [of the Probate Act]. *** So I think it would be appropriate to dismiss them.” The court
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then stated that it was setting the matter for a 30-day status date for any fee petitions.
¶ 29 The written order that followed, entered on March 23, 2015, stated in pertinent part, “The
Court having ruled that the March 2013 Powers of Attorney at issue herein are valid and
enforceable, Petitioner’s and Cross-Petitioner’s respective petitions for guardianship of Elizabeth
Jean Harper, Alleged Disabled Person, are dismissed.” The order made no reference to the
amended petition for guardianship filed by the GAL. The order further stated that any party
intending to submit petitions for fees and expenses should submit such petitions forthwith and
continued the matter for status on April 23, 2015.
¶ 30 D. Nunc pro tunc dismissal of GAL’s petition for guardianship
¶ 31 In the month between the entry of that order of March 23, 2015, and the status hearing of
April 23, 2015, no motion or other document was filed other than a petition for fees by the GAL.
Near the conclusion of the April 23 status hearing, Growe’s attorney pointed out that the GAL’s
amended petition for guardianship was still outstanding and had not been addressed in the order
of March 23, 2015. The trial court responded that the GAL’s petition “absolutely should be
dismissed” and that its dismissal “should be nunc pro tunc to the last date *** because that should
have been included. I wasn’t even thinking of that amended.” The only other matter addressed on
April 23 was the GAL’s petition for fees. The trial court formally discharged the GAL and stated
that nothing else was pending before the court.
¶ 32 E. Motions for Sanctions
¶ 33 On May 7, 2015, White, on behalf of himself and Harper, filed a motion for sanctions against
Growe and Pfeiffer. Generally speaking, that motion for sanctions asserted that a significant
amount evidence existed (which would have been presented in White’s case if the directed finding
had not been granted) that overwhelmingly demonstrated Harper’s capacity as of March 2013. It
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asserted that if Growe and her attorney had properly investigated the facts available to them, they
would have or should have recognized that no factual or legal basis existed for seeking to invalidate
the 2013 POAs based on lack of capacity.
¶ 34 On June 2, 2015, Growe and Pfeiffer filed a separate motion for sanctions against White and
Esmond (in her capacity as Harper’s agent as power of attorney for property). In it, they asserted
that the motion for sanctions filed by White was itself not well-grounded in fact or law and had
been filed only to harass them.
¶ 35 Both motions were briefed and proceeding to hearing. On October 5, 2015, the trial court
denied the motion filed by White, with the exception of three allegations. The court allowed
discovery to proceed on those three paragraphs of allegations. Also, the trial court denied the
motion for sanctions filed by Growe and Pfeiffer, stating that it “cannot conclude that there is no
precedent for the position adopted by Mr. White and Ms. Esmond.”
¶ 36 At a status hearing on December 17, 2015, the trial court sua sponte raised the question of its
own jurisdiction to consider the motion for sanctions and whether it had been timely filed within
30 days of the entry of final judgment. The trial court invited the parties to brief the issue.
¶ 37 On April 1, 2016, the trial court entered a memorandum opinion and order in which it
concluded that final judgment had been entered on March 23, 2015, when it had granted the motion
for directed finding and ordered the petitions for guardianship be dismissed. As part of its ruling,
the trial court reviewed the course of proceedings and concluded that, on April 23, 2015, it had
properly ordered that dismissal of the GAL’s amended petition for guardianship was nunc pro tunc
to March 23, 2015. It also concluded that the finality of the order was not changed by the fact that
the GAL filed a fee petition after March 23, 2015. Accordingly, because the motion for sanctions
had not been filed within 30 days of the entry of that order, the trial court dismissed the petition
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for sanctions for lack of jurisdiction.
¶ 38 On April 29, 2016, White and Harper filed a motion to reconsider the order of April 1, 2016.
The motion was fully briefed, and on December 30, 2016, the trial court entered an order denying
the motion to reconsider. On January 26, 2017, White and Harper filed a timely notice of appeal,
and on February 3, 2017, Growe and Pfeiffer filed a notice of cross-appeal.
¶ 39 II. ANALYSIS
¶ 40 A. Appeal by White and Harper
¶ 41 On appeal, White and Harper argue that the trial court erred in dismissing their motion for
sanctions for lack of jurisdiction on the basis that it had been untimely filed more than 30 days
after final judgment. They argue that the trial court erred in construing the order of March 23,
2015, as the final judgment. They contend that it was not final, because it resolved only one of the
issues in the case, namely whether Harper possessed the requisite capacity to execute the 2013
POAs. They contend that other issues remained pending as of that time, including the GAL’s
amended petition for guardianship, the GAL’s petition for legal fees and expenses, and other issues
set forth in the order of March 25, 2014. Relatedly, they argue that the trial court erred when, on
April 23, 2015, it ordered that the GAL’s amended petition for guardianship was dismissed
nunc pro tunc to March 23, 2015. Appellate jurisdiction exists over the question of whether
jurisdiction existed in the trial court. Kyles v. Maryville Academy, 359 Ill. App. 3d 423, 431 (2005).
¶ 42 The motion for sanctions at issue was filed on May 7, 2015. After initially allowing three of
the allegations raised in that motion to proceed, the trial court later raised the question of whether
the motion had been timely filed under Illinois Supreme Court Rule 137(b) (eff. July 1, 2013) and
concluded it had not. Rule 137(b) provides that a motion for sanctions “must be filed within 30
days of the entry of final judgment, or if a timely post-judgment motion is filed, within 30 days of
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the ruling on the post-judgment motion.” Id. If a motion for sanctions is not filed within the
timeframe set forth in Rule 137(b), the trial court loses jurisdiction to award sanctions. F.H. Prince
& Co. v. Towers Financial Corp., 266 Ill. App. 3d 977, 988 (1994). Whether a trial court has
jurisdiction to entertain a motion for sanctions is a question of law reviewed de novo. Parker v.
Liberty Insurance Underwriters, Inc., 2022 IL App (1st) 200812, ¶ 17.
¶ 43 A “final judgment” is a determination by the court on the issues presented by the pleadings
that ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. Hernandez
v. Pritikin, 2012 IL 113054, ¶ 47. A final judgment is one that finally determines the litigation on
the merits, so that, if affirmed, the only thing remaining is to proceed with the execution of the
judgment. In re Michael D., 2015 IL 119178, ¶ 13.
¶ 44 In considering the argument of White and Harper on this issue, there appear to be three
principal questions bearing on whether the order of March 23, 2015, constituted a final judgment
in this case. First, was the finality of that order in affected by the fact that it expressly contemplated
future petitions for attorney fees and expenses being filed in the case? Second, in the later order of
April 23, 2015, did the trial court properly enter a nunc pro tunc dismissal of the GAL’s amended
petition for guardianship to March 23, 2015, such that the earlier order constitutes a final
judgment? And third, did any other substantive issues remain to be resolved in the case once the
trial court determined that Harper had the legal capacity to execute the 2013 POAs?
¶ 45 1. GAL’s petition for fees
¶ 46 As to the first question, we do not interpret the argument of White and Harper to be that the
March 23 order’s contemplation of future fee petitions was, standing alone, enough to render the
order nonfinal. In its order dismissing White’s petition for lack of jurisdiction, the trial court
determined that that the GAL’s fee petition was filed and resolved after March 23, 2015, did not
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affect the finality of that order because the fee petition was “collateral to the judgment order
entered on March 23.” The trial court cited to a line of cases holding, in the context of appealability
of final judgments, that a claim for attorney fees made after the resolution of the merits of the
principal action is deemed incidental or collateral to the principal action and does not affect the
finality of a judgment order entered in that action. See, e.g., Goral v. Kulys, 2014 IL App (1st)
133236, ¶ 22; In re Estate of Kunsch, 342 Ill. App. 3d 552, 556 (2003); Hartford Fire Insurance
Co. v. Whitehall Convalescent & Nursing Home, Inc., 321 Ill. App. 3d 879, 886-87 (2001); Servio
v. Paul Roberts Auto Sales, Inc., 211 Ill. App. 3d 751, 759 (1991). It reasoned that a GAL’s fee
petition filed after the resolution of a guardianship proceeding would qualify as an action collateral
to the principal action, since attorney fees are not considered an element of the cause of action, the
awarding of fees is not necessary to the resolution of a guardianship, and fees are not mandatory
under the statute. See 755 ILCS 5/11a-3, 11a-10(c) (West 2012).
¶ 47 Again, we do not interpret the argument by White and Harper to take issue with the analysis
of the trial court on this point. We likewise agree with the trial court that any petitions for fees
filed and resolved after March 23, 2015, were collateral to the principal action for guardianship.
The fact that the trial court retained jurisdiction to resolve such fee petitions or that its March 23
order contemplated that they would be filed and resolved in the future was not, standing alone,
enough to render interlocutory an order that would otherwise be final.
¶ 48 2. Nunc pro tunc dismissal of GAL’s amended petition for guardianship
¶ 49 Our second principal question bearing on whether the March 23 order was a final judgment
is whether, by the later order of April 23, 2015, the trial court properly entered a nunc pro tunc
dismissal of the GAL’s amended petition for guardianship to March 23, 2015, such that a final
judgment existed in the case as of that earlier date. White and Harper argue that the trial court
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misused the “nunc pro tunc” designation in this context, because neither the trial court nor any
party was contemplating the dismissal of the GAL’s amended petition for guardianship at the time
the trial court originally made its ruling on March 23, 2015. White and Harper point out that the
reason that the GAL filed a separate petition to appoint an independent third-party as guardian was
because he believed that “palpable tension” existed among Harper’s family members that would
remain unresolved and adversely affect Harper’s care, regardless of her competence to execute a
power of attorney. Thus, White and Harper argue, there was no evidence that the parties ever
assumed that the court’s finding that Harper was competent to execute the 2013 POAs would
negate the need for the GAL’s amended petition for guardianship to be heard and decided.
¶ 50 A nunc pro tunc order may be used by a court to correct a clerical error in a written order and
thereby make a final order entered in a case conform to the actual judgment of the court. In re
Marriage of Breslow, 306 Ill. App. 3d 41, 50 (1999). The purpose of such an order is to supply
some omission in the record of an order that the court actually made but that was omitted from the
record at that time. Deutsche Bank National Trust Co. v. Ivicic, 2015 IL App (2d) 140970, ¶ 17. It
does not alter the actual judgment entered by the court, but rather it corrects inadvertent omissions
from the judgment order. Id. The nunc pro tunc designation may not be used if the omission is the
result of a deliberate decision by the judge or involves an issue that was not presented to the judge.
Id. The correction must be based on a note, memorandum, or paper remaining in the file or records
of the court, rather than the personal recollection of the trial judge or some other person. Jayko v.
Fraczek, 2012 IL App (1st) 103665, ¶ 29. Any document in the record may serve as evidence of
the inadvertent nature of the omission, including hearing transcripts, but the evidence must be
definite and certain. Deutsche Bank National Trust Co., 2015 IL App (2d) 140970, ¶ 17. We review
de novo whether an order satisfies the criteria to be a nunc pro tunc order. Wells v. State Farm Fire
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No. 1-17-0267
& Casualty Co., 2020 IL App (1st) 190631, ¶ 42.
¶ 51 Under these principles, we must determine whether dismissal of the GAL’s amended petition
for guardianship was included in the trial court’s oral ruling on March 20, 2015, but inadvertently
omitted from the written order that was entered on March 23, 2015. We note that, as of that time,
there were three operative pleadings in the case: (1) Growe’s second amended petition for relief
under section 2-10(a) of the Illinois Power of Attorney Act (755 ILCS 45/2-10(a) (West 2012)),
which sought a finding that Harper lacked capacity to implement the 2013 POAs and a declaration
that Growe serve as her agent for health care based on the 2001 POAs; (2) White’s cross-petition
for appointment of guardian, seeking to have himself appointed as guardian of Harper’s estate and
person; and (3) the GAL’s amended petition for appointment of a guardian, seeking to have
independent third parties appointed as guardians of her estate and person.
¶ 52 At the conclusion of its oral ruling on March 20, the trial court stated that it had re-reviewed
Growe’s amended petition and confirmed that the only basis for revocation of the powers of
attorney stated in that petition was Harper’s lack of capacity, “[s]o that appears to conclude that
petition.” The court went on to state that, with the 2013 POAs being held valid, sections 11a-17
and 11a-18 of the Probate Act (755 ILCS 5/11a-17, 11a-18 (West 2012)), as well as another section
of the Illinois Power of Attorney Act that the court could not recall at that moment, “would
preclude the petitions — the cross-petitions for guardianship from going forward at this point.”
The court then directed the attorneys to draft a written order reflecting its ruling. At that point,
White asked whether the trial court’s “remarks about the guardianship petitions” needed to be
included in the order also. The trial court responded:
“If you want to consult further with [the GAL], that’s fine. I tried to anticipate every
further step that needed to be addressed in this case, and I think that if the finding is that
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No. 1-17-0267
there are valid powers of attorney in place and there is no other reason that’s been requested
under the pending 2-10 petition to seek to revoke those powers of attorney, then a guardian
cannot be appointed under 11a-17, 11a-18 *** and the section of the Power of Attorney
Act that I am just blanking on right now. *** So I think it would be appropriate to dismiss
them.”
¶ 53 The written order that was thereafter entered on March 23, 2015, stated in part that, “The
Court having ruled that the March 2013 Powers of Attorney at issue herein are valid and
enforceable, Petitioner’s and Cross-Petitioner’s respective petitions for guardianship of Elizabeth
Jean Harper, Alleged Disabled Person, are dismissed.” The order stated nothing about the GAL’s
amended petition for guardianship.
¶ 54 When the case was next before the trial court on April 23, 2015, the trial court noted that
there were “a couple things up today” including the GAL’s fee petition and the fact that the court
had reviewed the transcript from its March 20 ruling. After those matters were addressed, Growe’s
attorney stated that the GAL’s amended petition for guardianship was “still outstanding that the
Court’s last order didn’t address.” The trial court responded, “Oh, my gosh, yes. That absolutely
should be dismissed. *** And that I think should be nunc pro tunc to the last date *** because that
should have been included. I wasn’t even thinking of that amended. You are absolutely right.” A
written order was then entered that day stating, “G.A.L.’s Amended Petition for Guardianship is
dismissed, nunc pro tunc to March 23, 2015.”
¶ 55 We conclude that the trial court’s entry of a nunc pro tunc order was proper in this case. It is
clear from the trial court’s comments at the conclusion of the March 20 hearing that its ruling that
the 2013 POAs were valid meant that no legal basis existed to appoint a guardian under any of the
pending petitions for guardianship and thus all the petitions seeking that relief must be dismissed.
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No. 1-17-0267
¶ 56 The trial court referenced two sections of the Probate Act and stated that they precluded the
cross-petitions for guardianship from going forward in light of its finding on the validity of the
powers of attorney. Section 11a-17(c) of the Probate Act, which involves guardianships of the
person of disabled adults, states in pertinent part, “Absent court order pursuant to the Illinois Power
of Attorney Act directing a guardian to exercise powers of the principal under an agency that
survives disability, the guardian has no power, duty, or liability with respect to any personal or
health care matters covered by the agency.” 755 ILCS 5/11a-17(c) (West 2012). Section 11a-18(e)
of the Probate Act, which involves guardianships of the estate of disabled adults, states in pertinent
part, “Absent court order pursuant to the Illinois Power of Attorney Act directing a guardian to
exercise powers of the principal under an agency that survives disability, the guardian will have
no power, duty or liability with respect to any property subject to the agency.” Id. § 11a-18(e). The
trial court also referenced a provision of the Illinois Power of Attorney Act that precluded the
petitions for guardianship from going forward, which it later clarified to be section 2-10(g), which
states in pertinent part, “Absent court order directing a guardian to exercise powers of the principal
under the agency, a guardian will have no power, duty or liability with respect to any property
subject to the agency or any personal or health care matters covered by the agency.” 755 ILCS
45/2-10(g) (West 2012). The trial court’s citing of these three provisions indicates that it intended
its ruling to bar relief under any of the petitions for guardianship and that all of them should be
dismissed, including the GAL’s amended petition. We see no basis for concluding that the trial
court’s reference to “petitions” or “cross-petitions for guardianship” generally in its oral ruling
meant that it was contemplating only two of the three petitions should be dismissed.
¶ 57 On appeal, White and Harper cite to the trial court’s statement at the April 23 hearing that it
“wasn’t even thinking of the amended” petition to mean that the purported nunc pro tunc order
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No. 1-17-0267
was not merely correcting on omission in the record of something that had actually been done.
Rather, they argue, as of March 23 neither the trial court nor any party “had in mind how or when
to dispose of the GAL’s own petition for guardianship and the petition remained actionable.” We
do not agree. We interpret the trial court’s comments to mean that, when it reviewed the written
order drafted by the attorneys, it had not thought of the fact that the attorneys had failed to include
the GAL’s amended petition for guardianship among the petitions set forth as being dismissed.
We do not interpret the comments to mean that the GAL’s amended petition for guardianship was
entirely outside the contemplation of the trial court on March 23 when it ordered that the petitions
for guardianship were precluded from going forward and therefore dismissed.
¶ 58 Our conclusion that the trial court and parties recognized that this had been an inadvertent
omission from the March 23 order is further supported by what occurred at the hearing on April
23. It appears from the transcript that the failure to include dismissal of the GAL’s amended
petition in the written order was raised as a matter of housekeeping at the conclusion of other
matters up that day. When this issue was raised, no party suggested that it was inappropriate to
dismiss the GAL’s amended petition for guardianship or that any further action needed to be taken
with respect to that petition. Instead, the discussion proceeded to the necessity of an order formally
discharging the GAL. When the trial court suggested that it believed that the dismissal of the
GAL’s amended petition should be nunc pro tunc to March 23, White said, “Right.” No party
objected or disagreed at that time. This leads us to conclude that the court and the parties
recognized at that time that the dismissal of the GAL’s amended petition for guardianship had been
part of the trial court’s ruling on March 20 but inadvertently omitted from the written order entered
March 23. Accordingly, the nunc pro tunc order remedying that omission was proper, and the
effective date of the dismissal of the GAL’s amended petition for guardianship was March 23,
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No. 1-17-0267
2015. Kooyenga v. Hertz Equipment Rentals, Inc., 79 Ill. App. 3d 1051, 1059 (1979)
(nunc pro tunc order takes effect as of the prior date).
¶ 59 3. Other issues remaining as of March 23, 2015
¶ 60 Our third principal question on the finality of the order of March 23, 2015, is whether any
substantive issues remained to be resolved in the case once the trial court determined that Harper
had the legal capacity to execute the 2013 POAs, so as to prevent the order from being final. As
discussed above, the GAL’s unresolved petition for attorney fees does not prevent the order from
being considered final. Also, our conclusion that the trial court properly entered an order that the
dismissal of the GAL’s amended petition for guardianship was nunc pro tunc to March 23, 2015,
means that no issue concerning that petition remained in the case after that date.
¶ 61 However, White and Harper argue that there were other substantive issues in the case after
the trial court determined that it had not been proven that Harper lacked capacity to execute the
2013 POAs. White and Harper look primarily to the pretrial order of March 25, 2014, arguing that
it and the court proceedings thereafter contemplated additional issues being resolved than merely
Harper’s capacity to execute powers of attorney. They argue that these issues included White’s
own fitness to act as agent for power of attorney for health care under the 2013 POAs and the most
appropriate health care plan for Harper in the future.
¶ 62 The problem with this argument is that, although these issues were discussed during the case
as matters that might need to be resolved, they were never placed into issue by any pleading in the
case. A circuit court lacks jurisdiction to adjudicate an issue not presented through proper
pleadings. IMC Global v. Continental Insurance Co., 378 Ill. App. 3d 797, 805 (2007). And a final
judgment is “ ‘a determination by the court on the issues presented by the pleadings’ ” that
ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. (Emphasis added).
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No. 1-17-0267
Hernandez, 2012 IL 113054, ¶ 47 (quoting Flores v. Dugan, 91 Ill. 2d 108, 112 (1982)). As the
trial court noted at the conclusion of its ruling on March 20, the only basis pled for revocation of
the 2013 POAs in Growe’s second amended petition was Harper’s lack of capacity. The trial court
determined and resolved that issue.
¶ 63 Our review of the operative pleadings confirms that, with respect to removing any agent as
power of attorney, Harper’s lack of capacity to execute the 2013 POAs was the only issue raised
by the pleadings. The only pleading that sought to invalidate any powers of attorney was Growe’s
second amended petition for relief. That petition was brought specifically under subsection 2-10(a)
of the Illinois Power of Attorney Act, which contemplates the granting of appropriate relief upon
“a finding by the court that the principal lacks either the capacity to control or the capacity to
revoke the agency.” 755 ILCS 45/2-10(a) (West 2012). Indeed, Growe’s petition requested only a
finding pursuant to 2-10(a) that Harper lacked the capacity to control or revoke the 2001 POA for
health care or to control or implement the 2013 POAs. By contrast, no operative pleading sought
to invalidate any power of attorney pursuant to subsection 2-10(b) of the Power of Attorney Act,
which contemplates the revocation of agency if “the court finds that the agent is not acting for the
benefit of the principal in accordance with the terms of the agency or that the agent’s action or
inaction has caused or threatens substantial harm to the principal’s person or property.” Id. § 2-
10(b). Accordingly, White’s fitness to act as agent under the 2013 POAs was never placed at issue
by the pleadings in the case.
¶ 64 We recognize that there were several discussions where the parties and the trial court
contemplated that matters not presently pled might need to be resolved in the future. For example,
White’s attorney acknowledged on May 5, 2014, that no issue concerning Harper’s present health
care plan had ever been raised in any pleading. The trial court acknowledged its understanding but
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No. 1-17-0267
stated that it anticipated an issue to be raised regarding Harper’s present health care plan “based
on statements of everyone in court over all of these hearings.” Also at that hearing, White’s
attorney reiterated that the sequence of determinations that had been set forth in the order of March
25, 2014, had been done “more out of a sequence of logic *** than any pleading.” However, no
amended pleadings were ever filed that put these matters at issue in the case.
¶ 65 4. Conclusion
¶ 66 In conclusion, we hold that the trial court’s order of March 23, 2015, constitutes the final
judgment in this case. By ruling that Growe had failed to prove that Harper lacked capacity to
execute the 2013 POAs, that the 2013 POAs were therefore valid and enforceable, and that the
appointment of a guardian was therefore precluded under any of the petitions requesting such
relief, the trial rendered a determination on all of the issues raised by the pleadings that ascertained
and fixed absolutely and finally the rights of the parties to the case. See Hernandez 2012 IL
113054, ¶ 47. The fact that the written order omitted a reference to the dismissal of the GAL’s
amended petition for guardianship does not prevent the judgment from being final, because the
trial court properly entered a later order dismissing that petition nunc pro tunc to March 23, 2015.
Because the motion for sanctions was not filed by White and Harper until May 7, 2015, which was
more than 30 days after the entry of final judgment on March 23, 2015, that motion for sanctions
was untimely under Illinois Supreme Court Rule 137(b) (eff. July 1, 2013). The trial court lacked
jurisdiction to consider the motion at that point and correctly dismissed it for that reason.
¶ 67 B. Cross-appeal by Growe and Pfeiffer
¶ 68 The cross-appeal raises two arguments: (1) Growe argues that the trial court erred by granting
the motion for directed finding against her on her claim that Harper lacked capacity to execute the
POAs; and (2) Growe and Pfeiffer argue that the trial court abused its discretion by dismissing
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No. 1-17-0267
their motion for sanctions. However, our conclusion that the order of March 23, 2015, was the
final judgment in the case renders this court unable to consider these issues.
¶ 69 The first issue raises a substantive challenge to the merits of the trial court’s final judgment
entered on March 23, 2015. However, just as we have concluded that no timely motion for
sanctions was filed within 30 days of that final judgment, similarly no timely notice of appeal was
filed within 30 days of that final judgment. Ill. S. Ct. R. 303(a)(1) (eff. Jan. 1, 2015). As no party
filed a timely notice of appeal of that final judgment, Growe and Pfeiffer cannot thereafter
substantively challenge it through a cross-appeal of the later order involving the trial court’s lack
of jurisdiction over the motion for sanctions. See Ill. S. Ct. R. 303(a)(3) (eff. Jan. 1, 2015);
American Dixie Shops v. Springfield Lords, Inc., 8 Ill. App. 2d 129, 136 (1955) (cross-appeal must
be of same judgment appellants have appealed from).
¶ 70 As to the second issue, our conclusion that the trial court lacked jurisdiction to consider a
motion for sanctions filed by White and Harper means that the trial court also lacked jurisdiction
to consider the motion for sanctions by Growe and Pfeiffer. Accordingly, we have no basis to
consider the trial court’s substantive ruling dismissing that motion. Kyles, 359 Ill. App. 3d at 431-
32. Although these challenges to our consideration of the cross-appeal were not raised by the
parties, we note that at oral argument Pfeiffer agreed that a ruling that the order of March 23, 2015,
was a final judgment would “torpedo” the cross-appeal and that a notice of appeal should have
been filed within 30 days of that judgment in order to challenge it.
¶ 71 III. CONCLUSION
¶ 72 For the foregoing reasons, the judgment of the trial court is affirmed.
¶ 73 Affirmed.
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