Farwell v. Senior Services Associates , 970 N.E.2d 49 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Farwell v. Senior Services Associates, Inc., 2012 IL App (2d) 110669
Appellate Court CAROL M. FARWELL, Plaintiff-Appellant, v. SENIOR SERVICES
Caption ASSOCIATES, INC., ASTA CARE CENTER OF ELGIN, and DANIEL
G. PARSONS, Defendants-Appellees.
District & No. Second District
Docket No. 2-11-0669
Rule 23 Order filed March 27, 2012
Rule 23 Order
withdrawn May 22, 2012
Opinion filed May 22, 2012
Held In an action alleging false imprisonment, abuse of process, malicious
(Note: This syllabus prosecution and conspiracy, arising from the removal of plaintiff from her
constitutes no part of home and her transportation to defendant nursing home following the
the opinion of the court entry of an order appointing defendant agency as her temporary guardian,
but has been prepared the trial court’s dismissal of plaintiff’s complaint was affirmed, since
by the Reporter of defendants acted pursuant to a valid temporary guardianship order to
Decisions for the protect plaintiff’s welfare.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Kane County, No. 10-L-232; the Hon.
Review Judith M. Brawka, Judge, presiding.
Judgment Affirmed.
Counsel on Daniel E. Compton and Karl E. Bayer, both of Brittain & Ketcham, P.C.,
Appeal of Elgin, for appellant.
Mary Jo Greene and Stephanie W. Weiner, both of Doherty & Progar,
LLC, of Chicago, for appellee Senior Services Associates, Inc.
Elizabeth M. Neidig, of Purcell & Wardrope, Chtrd., and Ami L.
DeMarco, of Quintairos, Prieto, Wood & Boyer, P.A., both of Chicago,
for appellee Asta Care Center of Elgin.
Peter A. Walsh, Stephen R. Swofford, and John P. Ryan, all of Hinshaw
& Culbertson LLP, of Chicago, for appellee Daniel G. Parsons.
Panel JUSTICE BOWMAN delivered the judgment of the court, with opinion.
Justices Burke and Birkett concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Carol M. Farwell, appeals the circuit court’s dismissal of her complaint against
defendants, Senior Services Associates, Inc., Asta Care Center of Elgin, and attorney Daniel
G. Parsons. Plaintiff’s complaint alleged claims of false imprisonment, abuse of process,
malicious prosecution, and conspiracy, based on her being removed from her home and
transported to Asta Care Center following an April 30, 2008, order that appointed Senior
Services temporary guardian of plaintiff. We affirm.
¶2 I. BACKGROUND
¶3 On April 29, 2010, plaintiff filed a five-count complaint, alleging the following facts.
Plaintiff resided in a home in Hampshire. Prior to April 30, 2008, Senior Services filed a
petition for the adjudication of disability and the appointment of a plenary guardian for
plaintiff because she was unable to handle her affairs. The petition stated that it was
necessary to remove plaintiff from her home and transport her to Asta Care Center in Elgin.
Plaintiff alleged that Senior Services never gave her notice of its plans to seek guardianship
over her. On April 30, 2008, the trial court made Senior Services plaintiff’s temporary
guardian and granted it authority to remove plaintiff from her home and transport her to Asta
Care Center. Senior Services then transported plaintiff, against her will, by ambulance to
Asta Care Center, causing plaintiff mental anguish and distress and depriving her of her
liberty.
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¶4 Count I alleged false imprisonment against Senior Services. Count II alleged abuse of
process against Senior Services, in that its petition was initiated to prevent plaintiff from
contesting a petition that sought guardianship of her husband, Robert Farwell. Count III
alleged false imprisonment against Asta Care Center, in that it improperly detained plaintiff
against her will, depriving her of her liberty. Count IV alleged false imprisonment against
Parsons, who was the attorney for Senior Services. The complaint alleged that Parsons never
provided plaintiff with notice of Senior Services’ petition, failed to present clear and
convincing evidence of her incompetence, and failed to file any type of medical report
concerning plaintiff’s ability to manage her affairs. Count V alleged abuse of process against
Parsons, based on much of the same.
¶5 On July 22, 2010, Asta Care Center filed a motion to dismiss plaintiff’s complaint
pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West
2010)), stating that it held plaintiff pursuant to a valid order by plaintiff’s court-appointed
temporary guardian. Six days later, Senior Services filed a similar motion to dismiss, arguing
that it was a local public entity covered by the Local Governmental and Governmental
Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2010)), including its one-
year statute of limitation, and that plaintiff could not collaterally attack the temporary
guardianship order in a civil suit against the parties. Parsons also filed a motion to dismiss,
arguing that plaintiff could not collaterally attack the order granting temporary guardianship
and that he could not be liable, because he acted as an attorney for Senior Services when he
filed the petition. Defendants explained that guardianship was sought because plaintiff’s
home was uninhabitable and posed an immediate threat to her health and safety. Plaintiff’s
children sought guardianship of Robert because he had Alzheimer’s disease and plaintiff was
not providing a safe home for him. Defendants argued that the trial court had properly
granted temporary guardianship in order to protect plaintiff’s welfare and safety. They argued
that notice was not required for the temporary hearing as it is for a plenary hearing and that
plaintiff never attacked the order and never asked that the temporary guardianship be
revoked.
¶6 On January 28, 2011, the trial court granted plaintiff leave to file an amended complaint
as to Asta Care Center and dismissed, with prejudice, counts I, II, IV, and V of the complaint.
¶7 Plaintiff filed her first amended complaint, alleging the following. Count I repleaded false
imprisonment against Senior Services; count II repleaded abuse of process against Senior
Services; count III alleged malicious prosecution against Senior Services; count IV pleaded
civil conspiracy against Senior Services, alleging that Senior Services conspired and agreed
with Parsons and Asta Care to maliciously prosecute plaintiff to prevent her from contesting
the petition for guardianship of Robert Farwell; count V repleaded false imprisonment
against Asta Care Center; count VI alleged civil conspiracy against Asta Care Center; count
VII repleaded false imprisonment against Parsons; count VIII repleaded abuse of process
against Parsons; count IX alleged malicious prosecution against Parsons; and count X alleged
civil conspiracy against Parsons.
¶8 Defendants again filed motions to dismiss pursuant to section 2-619 of the Code, arguing
that plaintiff could not collaterally attack the propriety of the temporary guardianship order
in this civil suit and that, because the parties acted under the authority of the court’s
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temporary guardianship order, the complaint could not survive. On June 23, 2011, the trial
court granted defendants’ motions to dismiss, with prejudice, all counts of the complaint. The
trial court stated that plaintiff could not circumvent the fact that defendants acted upon a
legal temporary guardianship order. Plaintiff could not collaterally attack the temporary
guardianship order in this proceeding where the order was never attacked in the prior
proceeding. The trial court explained that the temporary guardianship was in effect for the
entire duration of its term. While the petition for guardianship was then withdrawn because
the facts had changed (plaintiff agreed to move out of the uninhabitable home), the facts
supporting the order had not been attacked. Accordingly, the trial court determined that the
false imprisonment claims failed because plaintiff was held under legal process. Further, the
abuse of process claims failed because Senior Services obtained temporary guardianship in
order to protect plaintiff and not for any ulterior purpose or motive. The court went on to
state that the malicious prosecution claims failed because the mere filing of the guardianship
petition did not result in special damages suffered by plaintiff. The conspiracy claims failed
because the tort claims supporting them had failed. Plaintiff timely appealed.
¶9 II. ANALYSIS
¶ 10 A motion to dismiss under section 2-619 admits the legal sufficiency of the plaintiff’s
complaint but asserts an affirmative matter that defeats the claims. King v. First Capital
Financial Services Corp., 215 Ill. 2d 1, 11-12 (2005). We review de novo a trial court’s
dismissal of a complaint under a section 2-619 attack. Id. Further, whether the doctrine of
collateral estoppel applies in this case presents a question of law, which we review de novo
as well. Hurlbert v. Charles, 238 Ill. 2d 248, 254 (2010).
¶ 11 Plaintiff argues that the trial court erred in dismissing her complaint, because the
temporary guardianship order was improperly entered, without notice and without a medical
report. Plaintiff argues that the order was not a final order and that therefore she could not
have appealed it when it was entered. Plaintiff further argues that, because the propriety of
the order was not litigated, collateral estoppel does not bar her from raising the issue in this
proceeding. Finally, plaintiff argues that the trial court erred because the underlying
guardianship action terminated in her favor.
¶ 12 A claim for false imprisonment requires a showing that the plaintiff was restrained or
arrested by the defendant and that the defendant acted without having reasonable grounds or
probable cause. Reynolds v. Menard, Inc., 365 Ill. App. 3d 812, 819 (2006). Here, defendants
mainly argue that they had acted to remove plaintiff from her home under the authority
granted to them by the trial court’s temporary guardianship order. Defendants argue that
plaintiff is collaterally estopped from attacking the propriety of the temporary guardianship
order in these proceedings. We agree with defendants.
¶ 13 Collateral estoppel is an equitable doctrine that precludes a party from relitigating an
issue decided in a prior proceeding. American Family Mutual Insurance Co. v. Savickas, 193
Ill. 2d 378, 387 (2000). Three threshold requirements must be met before the doctrine may
be applied: (1) the issue decided in the prior adjudication must be identical with the one
presented in the suit in question; (2) there must have been a final judgment on the merits in
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the prior adjudication; and (3) the party against whom estoppel is asserted must have been
a party or in privity with a party to the prior adjudication. Id. “Additionally, the party sought
to be bound must actually have litigated the issue in the first suit and a decision on the issue
must have been necessary to the judgment in the first litigation.” Id.
¶ 14 In this case, we consider whether the temporary guardianship order may be considered
a final judgment for purposes of application of collateral estoppel, and we find that it may.
The temporary guardianship order was entered pursuant to section 11a-4 of the Probate Act
of 1975 (755 ILCS 5/11a-4 (West 2008)). Section 11a-4 provides in relevant part:
“[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 or his
estate on such notice and subject to such conditions as the court may prescribe. In
determining the necessity for temporary guardianship, the immediate welfare and
protection of the alleged disabled person and his or her estate shall be of paramount
concern, and the interests of the petitioner, any care provider, or any other party shall not
outweigh the interests of the alleged disabled person. The temporary guardian shall have
all of the powers and duties of a guardian of the person or of the estate which are
specifically enumerated by court order. The court order shall state the actual harm
identified by the court that necessitates temporary guardianship. The temporary
guardianship shall expire within 60 days after the appointment or whenever a guardian
is regularly appointed, whichever occurs first. Except pending the disposition on appeal
of an adjudication of disability, no extension shall be granted. However, the ward shall
have the right any time after the appointment of a temporary guardian is made to petition
the court to revoke the appointment of the temporary guardian.” 755 ILCS 5/11a-4 (West
2008).
¶ 15 In In re Estate of Sherwood, 56 Ill. App. 2d 334, 337-38 (1965), heirs to the estate of an
allegedly incompetent woman objected to the temporary guardian’s payment of certain estate
expenses. The woman died before a permanent guardian hearing took place. Id. at 338. The
appellate court stated that the appointment of the temporary guardian occurred in order to
prevent the allegedly incompetent woman from dissipating her estate and was done after the
court heard the parties. Id. at 339. Further, the appellate court held that the objectors could
not argue on appeal that the temporary guardian’s appointment was improper where no
appeal was taken within the 60-day statutory period for appeal. Id. at 340. The appellate court
held that the appointment was final and appealable when it was entered and could not be
collaterally attacked in an appeal concerning matters wholly separate from the appointment
unless there was a showing that the court had lacked jurisdiction to enter the order appointing
the guardian. Id. at 341. There was nothing in the record that indicated that the probate court
had lacked jurisdiction. Id.
¶ 16 Likewise in this case, plaintiff never petitioned the trial court to revoke the appointment
of the temporary guardian and never sought any type of review of that temporary
guardianship order. In fact, the order remained in effect for the entire 60 days. There is
nothing in the record to indicate that the trial court lacked jurisdiction to appoint the
temporary guardian. Further, like in Sherwood, the record indicates that the requirements of
the Probate Act were followed and that the court appointed a temporary guardian because the
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condition of plaintiff’s home was dangerous to her health and the health of her husband. See
In re Estate of Hasse, 327 Ill. App. 3d 1057, 1060 (2002) (notice requirements for
proceedings under section 11a-4 are within trial court’s discretion and notice requirements
for plenary guardianship are inapplicable where imposing such requirements would
undermine the clear purpose of the provisions regarding temporary guardians, which is to
attend to the immediate needs of the allegedly disabled person). Contrary to plaintiff’s
argument that Senior Services’ withdrawal of its petition for guardianship established that
the initial appointment was improper or sought with malicious intentions, the record
indicates that the petition was withdrawn because plaintiff agreed to move to another home
she owned that was not in a condition posing a threat to her health and safety. Accordingly,
the facts that supported the temporary guardianship had changed, leading to an end to the
need for a guardian, but that change did not render the temporary guardianship void.
¶ 17 We reject plaintiff’s reliance on Hurlbert for support of her argument that collateral
estoppel should not bar her from raising the issue that the temporary guardianship was
improperly obtained. In Hurlbert, the supreme court considered whether the plaintiff could
make a malicious prosecution claim that the defendant-policeman lacked probable cause to
arrest him for driving under the influence (DUI) where the probable cause issue had been
litigated in a statutory summary suspension hearing. Hurlbert, 238 Ill. 2d at 254. The
supreme court concluded that collateral estoppel could apply because the same probable
cause standard was required in both the malicious prosecution claim and the statutory
summary suspension hearing. Id. at 255. However, it declined to bar the malicious
prosecution claim, because summary suspension hearings were intended to be swift civil
hearings, not full-blown hearings such as in a criminal trial. Id. at 257. In so holding, the
supreme court discussed its earlier decision in People v. Moore, 138 Ill. 2d 162 (1990), and
noted that its decision in Moore not to apply collateral estoppel in a subsequent driving under
the influence prosecution was based in large part on the likelihood that the State, knowing
that the results of a summary suspension hearing would be given preclusive effect, would be
less likely to rely simply on police reports as evidence, but instead would call witnesses and
conduct full-blown hearings. Id. at 167. That effect would defeat the purpose of a swift,
administrative resolution to license suspensions. Id. at 169. The supreme court decided in
Hurlbert that the same logic applied, and it did not want the preclusive effect of a summary
suspension hearing to cause fear in parties such that they would conduct full-blown hearings
instead of the swift hearings the statute had intended. Hurlbert, 238 Ill. 2d at 260.
¶ 18 The trial court in this case distinguished the facts of Hurlbert and found it limited to
statutory summary suspension hearings. The trial court found that in this case, plaintiff was
not seeking a review of facts as they had occurred in the past but rather a review of the
procedure used in obtaining the order. We agree. Plaintiff does not allege that defendants had
no reason to seek guardianship at the time, but rather she attacks the court’s decision to
appoint the guardian without notice to her and without a medical report. The attack is not on
whether there was actual cause for the appointment of the guardian to protect her immediate
welfare but rather on whether the court followed required procedures. We therefore find
Hurlbert inapplicable to the case at bar.
¶ 19 Having determined that plaintiff may not now attack the trial court’s temporary
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guardianship order, we find that the false imprisonment claims cannot survive a section 2-
619 attack. With a valid temporary guardianship order, defendants had reasonable grounds
and legal authority to move plaintiff, against her will, to Asta Care Center for her protection.
Thus, the false imprisonment claims cannot survive under the facts and circumstances of this
case.
¶ 20 Moving on to plaintiff’s malicious prosecution claims, such a claim requires a showing
of the following elements: (1) the commencement or continuation of an original criminal or
civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of
the plaintiff; (3) absence of probable cause for such proceeding; (4) the presence of malice
on the part of the defendant; and (5) damages resulting to the plaintiff. Reynolds, 365 Ill.
App. 3d at 818-19. Plaintiff alleged that Senior Services filed its petition to prevent her from
contesting the petition seeking guardianship of her husband. She also alleged that the
proceeding terminated in her favor, because the petition was eventually withdrawn. Plaintiff
alleged that she suffered damages because of mental anguish and public embarrassment.
However, because we determined that the temporary guardianship order was properly
entered, plaintiff cannot satisfy the third element, that there was no probable cause for the
petition being filed. The trial court heard from the parties that plaintiff’s home was in such
disarray that its condition posed a health and safety hazard to her. The trial court agreed and
properly appointed a temporary guardian to protect plaintiff’s immediate welfare.
Accordingly, the malicious prosecution claims cannot stand under the facts of this case.
¶ 21 Next, we address plaintiff’s abuse of process claims. “Abuse of process is defined as the
misuse of the legal process to accomplish some purpose outside the scope of the process
itself.” Kumar v. Bornstein, 354 Ill. App. 3d 159, 165 (2004). “The *** elements necessary
to plead a cause of action for abuse of process are: (1) the existence of an ulterior purpose
or motive and (2) some act in the use of legal process not proper in the regular prosecution
of the proceedings.” Id. “In order to satisfy the first element, a plaintiff must plead facts that
show that the defendant instituted proceedings against him for an improper purpose, such as
extortion, intimidation, or embarrassment.” Id. “In order to satisfy the second element, the
plaintiff must show that the process was used to accomplish some result that is beyond the
purview of the process.” Id. Under the facts alleged in this case, plaintiff’s claims cannot
stand where the petition for guardianship was sought to protect her welfare and where the
trial court had determined that plaintiff’s welfare was in immediate danger, warranting the
appointment of a guardian. For this reason, plaintiff cannot plead that guardianship was
sought for an improper purpose where a proper purpose was established in the trial court
before the order was entered.
¶ 22 Finally, plaintiff’s civil conspiracy claims cannot stand where there are no underlying
intentional torts that defendants could have conspired to perform. Civil conspiracy is an
intentional tort defined as a combination of two or more persons for the purpose of
accomplishing by concerted action either an unlawful purpose or a lawful purpose by
unlawful means. Reuter v. MasterCard International, Inc., 397 Ill. App. 3d 915, 927 (2010).
“To state a claim for civil conspiracy, [the] plaintiff must allege facts establishing both (1)
an agreement to accomplish such a goal and (2) a tortious act committed in furtherance of
that agreement.” Id. A conspiracy, by nature, is secretive, and therefore the agreement is
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rarely established by direct proof. Id. at 927-28. Still, the plaintiff must allege sufficient facts
to bring his claim, and conclusory allegations that the defendants agreed to achieve some
illicit purpose are insufficient to sustain his claim. Id. at 928. Here, defendants acted pursuant
to a valid temporary guardianship order and thus there could not have been a conspiracy to
act for an unlawful purpose or unlawful means.
¶ 23 Regarding Parsons, we additionally find that plaintiff’s claims of malicious prosecution
and abuse of process are barred on the ground that he was acting as Senior Services’ attorney.
“Public policy requires that an attorney, when acting in his professional capacity, be free to
advise his client without fear of personal liability to third persons if the advice later proves
to be incorrect.” Schott v. Glover, 109 Ill. App. 3d 230, 235 (1982). While this privilege is
not absolute, a plaintiff carries the burden to overcome the privilege by pleading malice,
meaning that the attorney intended to harm, which is independent of and unrelated to his
desire to protect his client. Id. No such allegations substantiate or lead to an inference that
Parsons independently maintained a desire to harm plaintiff by filing the petition for
guardianship.
¶ 24 III. CONCLUSION
¶ 25 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 26 Affirmed.
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