In re Estate of Rosinski , 975 N.E.2d 335 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Estate of Rosinski, 2012 IL App (3d) 110942
Appellate Court In re ESTATE OF KRISTINA ROSINSKI, a Minor (Colleen Wengler,
Caption Petitioner-Appellee, v. Lori S.C. Yokoyama and Associates, P.C.,
Respondent-Appellant).
District & No. Third District
Docket No. 3-11-0942
Filed August 22, 2012
Held In proceedings seeking to settle a minor petitioner’s personal injury
(Note: This syllabus claim, the appeal from an order requiring the fees of the petitioner’s
constitutes no part of guardian ad litem to be paid by the law firm retained by the tortfeasor’s
the opinion of the court insurer to “facilitate” the settlement was dismissed for lack of
but has been prepared jurisdiction, since the order was not final and appealable.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Will County, No. 10-P-807; the Hon.
Review Jeffrey J. Allen, Judge, presiding.
Judgment Appeal dismissed.
Counsel on Lori S. Yokoyama, of Lori S.C. Yokoyama & Associates, P.C., of
Appeal Chicago, for appellant.
No brief filed for appellee.
Panel JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Presiding Justice Schmidt and Justice Holdridge concurred in the
judgment and opinion.
OPINION
¶1 Appellant, Lori S.C. Yokoyama & Associates, P.C. (the firm), appeals the trial court’s
decision ordering the firm to pay the court-appointed guardian ad litem fees as costs,
pursuant to local rules. The appeal, filed pursuant to Illinois Supreme Court Rule 304(a) (eff.
Feb. 26, 2010), is dismissed for lack of jurisdiction.
¶2 FACTS
¶3 The minor in this case, Kristina Rosinski (Kristina), was injured in an automobile
accident involving another driver, Ardythe Barnett. Barnett’s insurance company, AAA,
retained the firm to “facilitate” a settlement of the claim in the amount of $16,104.29.
¶4 On October 26, 2010, Jacqueline Rosinski (Jacqueline), Kristina’s mother, filed a pro se
petition to settle the cause of action and a pro se petition to be appointed guardian of her
daughter’s “estate and/or person” in Will County case No. 10-P-807. The firm purportedly
assisted Jacqueline with the preparation of the petition to settle the cause of action against
“Ardythe Barnett” and the petition requesting the court to designate Jacqueline as guardian
of the “estate and/or person of the minor.”
¶5 The trial court appointed Colleen Wengler (GAL) to serve as guardian ad litem for the
minor on November 29, 2010, pursuant to Will County local rule 5.03 (12th Judicial Cir. Ct.
R. 5.03 (Aug. 3, 2009)). Upon reviewing the case, the GAL advised an attorney with the
firm, McKenzie Carr, that the minor must first be served with a summons and petition before
any request to appoint Jacqueline as guardian of the minor’s estate could be heard by the
court.
¶6 Consequently, Carr appeared in court on December 27, 2010 and requested leave to issue
an alias summons, which the trial court granted.1 The firm prepared the alias summons and
paid costs in the amount of $47 on December 28, 2010 to have the minor served with the
summons and the petition.
1
The record reveals no original summons was issued in this case.
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¶7 Approximately three months later, the GAL formally recommended the court deny the
proposed settlement with AAA on March 22, 2011. The GAL also advised the court that
Jacqueline intended to retain counsel to file suit on the minor’s behalf. The court continued
that matter to August 15, 2011 for a status hearing.
¶8 On August 15, 2011, the record indicates Lori Yokoyama of the firm was present in
court, and she was directed by the court to provide notice to both Jacqueline and the GAL
of the next status date on September 29, 2011. The handwritten order prepared by the firm
on August 15, 2011 indicated the firm represented “Ardythe Barnett,” the insured. The GAL
appeared in court on September 29, 2011 and received the trial court’s permission to file her
petition for fees on that date.
¶9 On November 2, 2011, the court conducted a hearing on the petition for GAL fees.
Daniel Chang appeared at this hearing to oppose the petition on behalf of the firm. Chang did
not allege the GAL fees were unreasonable but simply argued the firm should not be ordered
to pay the GAL fees in any amount.
¶ 10 During the hearing regarding her request for GAL fees, the GAL informed the court she
made several court appearances due to the firm’s “failure to have their pleadings in order.”
Specifically, the GAL informed the court that the petition to settle the minor’s cause of action
was not in compliance with local court rules when it was first filed. The GAL stated, “I have
$1,450 worth of fees just trying to get this thing in order so that the Court can take a look at
it and so that I could evaluate it, all of which were caused by delay and other actions taken
by Miss Yokoyama of Yokoyama and Associates.”
¶ 11 After arguments, the court ordered the firm to pay GAL fees in the amount of $1,450
within 30 days.2 The firm filed a motion to vacate the court’s order on November 28, 2011.
Again, the firm did not challenge the propriety of the GAL fees in the written motion, but
contended the court was without authority to order a “nonparty” law firm to pay GAL fees
when assessed as costs by the court.
¶ 12 During the hearing on the firm’s motion to vacate, Yokoyama and the GAL were both
personally present before the court. The GAL argued the court acted properly because the
local rules allowed the court to assess GAL fees against a nonparty upon a showing of good
cause. Specifically, the GAL stated, “this Court had good cause to approve my fees and order
them payable by [Yokoyama’s] firm. And it is allowed under the rules. And I would indicate
that there is no basis to vacate the Court’s November 2nd order.” The GAL also argued the
firm prepared the pleadings subsequently filed by Jacqueline to initiate the action in the
circuit court. However, according to the GAL, the firm did not indicate on the pleadings that
it had assisted Jacqueline when preparing the petitions.
¶ 13 The court directly inquired of Yokoyama whether she represented either the insurance
company or Jacqueline. In response, Yokoyama stated:
“We were asked to basically appear *** to assist Miss Jacqueline Rosinski if she had any
questions. But I don’t represent Miss Rosinski.”
2
The record on appeal does not indicate whether the GAL fees have been paid.
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In addition, Yokoyama verbally denied she represented the insurance company when before
the court that day.3
¶ 14 After this exchange, the court reaffirmed there was good cause to order the firm to pay
the GAL fees. Yokoyama then asked if she had leave to “take this matter up, certify a
question relative to whether or not we should be assessed the fees for the Guardian Ad
Litem.” (Emphasis added.) The court replied, “I don’t see any reason to delay enforcement
or appeal of the order.”
¶ 15 The trial court’s written order reflects “[t]hat the order of November 2, 2011 requiring
the law firm of Lori S.C. Yokoyama Assoc., P.C. to pay the fees of the Guardian Ad Litem
is final and appealable.” The notice of appeal was filed on December 22, 2011. The
underlying case was continued to January 9, 2012, and the GAL appeared on that date.
¶ 16 The record does not include a certified question submitted by the firm for the court’s
approval pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). Instead, the firm
indicated in its statement of jurisdiction that this appeal was filed pursuant to Illinois
Supreme Court Rule 304(a) (eff. Feb. 26, 2010).
¶ 17 ANALYSIS
¶ 18 The firm raises five arguments on appeal attacking the trial court’s authority to order the
firm to pay the GAL fees in this case. The appellee did not file a brief in this case.
¶ 19 We may consider the merits of the appeal even in the absence of appellee’s brief,
pursuant to the principles articulated in First Capitol Mortgage Corp. v. Talandis
Construction Corp., 63 Ill. 2d 128 (1976). However, we first address whether we have
jurisdiction to consider the firm’s appeal. A reviewing court has a duty to ascertain its
jurisdiction before proceeding in a cause of action, regardless of whether either party has
raised the issue. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213
(2009).
¶ 20 First, we note that after the appointment of the GAL on November 29, 2010, the firm
voluntarily paid the costs associated with serving the minor with an alias summons. Second,
the record does not reveal whether the firm paid the GAL fees within 30 days as ordered.
However, the firm has not asked the trial court to declare the firm in “friendly contempt”
after refusing to pay $1,450 for the court-ordered GAL fees. In re Marriage of Earlywine,
2012 IL App (2d) 110730, ¶ 1. If the firm had done so, this court would have jurisdiction on
appeal to consider the propriety of the trial court’s order regarding costs. Id. ¶¶ 1, 24; see also
Dufour v. Mobile Oil Corp., 301 Ill. App. 3d 156, 162 (1998) (holding “[t]he proper
procedure to test on appeal a circuit court’s [interlocutory] discovery order is for the
contemnor to request the trial court to enter a citation of contempt”).
¶ 21 Finally, we also recognize the matter may have involved a question of law that could
3
We note that the written order from December 27, 2010, prepared by Carr, indicated that
she represented “AAA.” In addition, the record contains a written order from August 15, 2011,
where the firm indicated it represented “Ardythe Barnett.”
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have been certified for our review by the trial court pursuant to Rule 308. However, the firm
abandoned its stated intention to pursue an appeal in this case by certified question pursuant
to Rule 308, and instead elected to file an appeal under Rule 304(a). Therefore, for purposes
of evaluating our jurisdiction in this case, we assume the appeal was filed pursuant to Rule
304(a) as stated in the firm’s brief.
¶ 22 Rule 304(a) states that a final order that disposes of less than all of the claims in one
action is not appealable unless the trial court makes a written finding that there is no just
reason to delay enforcement or appeal or both. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). In
this case, the trial court’s November 28, 2011 order indicated the order requiring the firm to
pay the GAL fees in the amount of $1,450 was “final and appealable.” Assuming this
language satisfies the requirements of Rule 304(a), a trial court cannot make a nonfinal order
appealable simply by including language that complies with Rule 304(a). In re Marriage of
Young, 244 Ill. App. 3d 313, 315-16 (1993). Instead, we must independently determine
whether the order was in fact, final and appealable.
¶ 23 Our careful review of the record indicates the petition to settle the minor’s cause of action
remained pending at the time of the notice of appeal, which was filed on December 22, 2011.
The record indicates the GAL’s duties were not terminated by the court prior to the date of
the notice of appeal. In fact, the record also shows that on January 9, 2012, the GAL
appeared on behalf of the minor after this appeal began. Thus, it is reasonable to assume the
court will order the firm to compensate the GAL for her additional fees or other court costs,
which would possibly generate another appeal by the firm. See Pruitt v. Pruitt, 129 Ill. App.
3d 50, 51-52 (1984) (finding order was not final and appealable where trial court’s later
ruling on attorney fees could result in another appeal on underlying action). This result is
inapposite to Rule 304(a)’s policy of discouraging piecemeal litigation. First National Bank
of Deerfield v. Lewis, 163 Ill. App. 3d 160, 161 (1987).
¶ 24 In spite of the court’s language indicating the November 2, 2011 order was both final and
appealable, based on a careful review of the record, we conclude the court’s November 2,
2011 order did not absolutely and finally determine the rights of the firm because the firm
could be ordered to pay additional GAL fees or other costs due to the ongoing nature of the
pending petition. Lamar Whiteco Outdoor Corp. v. City of West Chicago, 395 Ill. App. 3d
501, 504 (2009) (stating that a final judgment is one that absolutely and finally fixes the right
of the parties). Accordingly, the trial court’s order requiring the firm to pay the GAL fees as
court costs was not final and appealable as required by Rule 304(a).
¶ 25 CONCLUSION
¶ 26 For the foregoing reasons, the appeal is dismissed.
¶ 27 Appeal dismissed.
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