In re Estate of Walter

2022 IL App (1st) 211600No. 1-21-1600
Opinion Filed: December 23, 2022
Sixth Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re ESTATE OF VERONICA WALTER, ) Appeal from the Circuit Court
) of Cook County, Illinois
Alleged Person With a Disability )
) No. 2019 P 8078(Beth McCormack, )
) The Honorable
Petitioner-Appellee, ) Jesse Outlaw,
) Judge Presiding.
v. )
Veronica Walter, )
Respondent-Appellant).
JUSTICE C.A. WALKER delivered the judgment of the court, with opinion.
Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment and
opinion.
OPINION
¶1 Petitioner, Beth McCormack, filed a petition for appointment of guardianship of
respondent Veronica Walter in the probate division of the circuit court (probate court). The probate
court adjudged Walter as a person with a disability and appointed R&R Guardianship Services as
Walter’s guardian ad litem for the limited purpose of resolving Walter’s marriage dissolution case.
No. 1-21-1600
On appeal, Walter raises several issues, including that the probate court lacked jurisdiction, made
erroneous evidentiary rulings, made disability adjudication and appointment of a guardian ad litem
findings that were against the manifest weight of the evidence, and failed to give Walter an
opportunity to nominate a guardian ad litem. For the following reasons, we affirm the circuit
court’s finding that respondent was “a person with a disability” under section 11a-2 of the Probate
Act of 1975 (Probate Act) (755 ILCS 5/11a-2 (West 2020)), and we remand to the probate division
of the circuit court so that a hearing may be held regarding respondent’s request to nominate her
brother as guardian ad litem.
¶2 I. BACKGROUND
¶3 A. Marriage Dissolution Proceedings
¶4 In 2014, Joseph Tener filed a petition for dissolution of marriage from Walter. During the
next several years, Walter was represented by four different lawyers. In 2018, Walter requested to
proceed pro se in the dissolution proceeding. After growing concern that Walter did not have the
mental capacity to participate in the proceedings, the judge in the dissolution proceeding
(dissolution judge) ordered a medical examination to determine whether Walter was competent to
represent herself. Dr. Louis Kraus evaluated Walter and opined that she was delusional, extremely
paranoid, and severely disabled. After reviewing Dr. Kraus’s medical report, the dissolution judge
appointed McCormack as Walter’s guardian ad litem and ordered McCormack to file a petition for
the appointment of guardianship in probate court.
¶5 B. Probate Proceedings
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¶6 1. Pretrial
¶7 In 2019, McCormack filed a petition for appointment of guardian of a person with a
disability in the probate court. The court appointed Susan DeCostanza as Walter’s guardian
ad litem in the probate proceedings.
¶8 In August 2020, Walter filed a motion in limine to exclude the admission of Dr. Kraus’s
medical report. The court never ruled on the motion, and neither party requested a ruling.
McCormack filed an emergency motion for medical evaluation to obtain a report of physician. The
court granted the motion and permitted McCormack to coordinate the evaluation. McCormack
retained Dr. Geoffrey Shaw, who conducted an independent medical examination on Walter. After
the examination, Dr. Shaw created a report of his findings and conclusions and opined that Walter
was unable to make well-reasoned decisions in her best interest and needed a limited guardian
ad litem of her person and estate in the dissolution proceeding.
¶9 Walter hired Dr. Monica Argumedo to conduct a medical examination. After the
examination, Dr. Argumedo created a report of her findings and conclusions. She opined that
Walter was competent to manage her person and financial affairs without a guardian ad litem.
¶ 10 In December 2020, McCormack filed an amended petition for guardianship that alleged
Walter “is a person with a disability due to Delusional Disorder and because of that disability (a)
lacks sufficient understanding or capacity to make or communicate responsible decisions
concerning the care of the Respondent’s person; [and] (b) is unable to manage the Respondent’s
estate or financial affairs.” The amended petition included Dr. Shaw’s medical report.
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¶ 11 In January 2021, Walter filed a motion for summary judgment arguing that Dr. Shaw’s and
Dr. Argumedo’s conflicting medical opinions showed that McCormack could not prove by clear
and convincing evidence that Walter was a person with a disability. The circuit court denied the
motion arguing that the conflicting expert opinions created a genuine issue of material fact. Walter
also moved to dismiss the petition based on lack of jurisdiction because McCormack failed to serve
notice to six of Walter’s nine siblings. At the hearing on the motion, McCormack and DeCostanza
informed the court about their unsuccessful efforts to find and serve notice to Walker’s siblings.
McCormack asked Walter for her siblings’ contact information, and Walter informed her that she
did not have their information. McCormack was able to contact one sibling, Kenneth Walter
(Kenneth). Kenneth provided his address but refused to provide any additional contact information
for the other siblings. With the help of DeCostanza, McCormack learned that three of the siblings
worked for the same employer. DeCostanza called the employer, verified that the siblings worked
there and left a message. However, DeCostanza never received a return call. McCormack, with
leave of the court, posted three notices of the plenary petition for guardianship in the Chicago
Daily Law Bulletin, and McCormack was able to get the contact information for one other sibling,
Rita Walter (Rita).
¶ 12 In February 2021, McCormack filed a second amended petition for the purpose of
amending the notice form to include the names of Walter’s living siblings and the addresses of
Kenneth and Rita. The court determined that service via publication was sufficient notice.
¶ 13 2. Trial
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¶ 14 At trial, DeCostanza detailed the difficulties she faced in her efforts to contact Walter
because Walter did not answer DeCostanza’s phone calls. One day, DeCostanza went to Walter’s
home and found duct tape over the doorbell. DeCostanza knocked on the door and received no
response. She tried to put a note in the mail slot but found it sealed and left a note by the door.
About four months after the court appointed DeCostanza as guardian ad litem, and after Walter
hired an attorney for the probate court proceedings, DeCostanza interviewed Walter. After the
interview, DeCostanza, relying on Dr. Shaw’s medical opinion, recommended appointment of a
guardian with authority limited to facilitating the settlement of the marriage dissolution case.
¶ 15 McCormack testified that she met with Walter on several occasions. During those times,
Walter’s behavior was unpredictable. Walter was either kind to McCormack or yelled and accused
McCormack of lying. McCormack also had difficulty scheduling appointments with Walter. In
May 2019, Walter and Tener reached a proposed settlement agreement that was “very much in her
favor.” McCormack testified that she based her opinion about the desirability of the settlement on
the opinion of the attorney representing Walter in dissolution proceeding. Between May 2019 and
October 2019, Walter’s dissolution attorney urged her to accept the proposed settlement but she
refused. McCormack admitted she had “no independent recollection of the specifics” of whether
she discussed the written settlement offer with Walter. McCormack recommended the appointment
of a guardian with authority limited to facilitating the settlement of the dissolution case.
¶ 16 Walter testified that McCormack and her divorce attorney never showed her the proposed
divorce settlement. She knew she was married to Tener and sought a divorce but did not remember
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the date or year that she got married. Walter also did not remember how many attorneys she had
in the dissolution proceeding.
¶ 17 Tener testified that while Walter took care of her finances and daily needs, he assisted her
with grocery shopping, paying bills, and home maintenance. To the best of Tener’s knowledge,
Walter had not taken medication for five years. Walter distrusted people and refused to allow
guests in her home except for Tener. She complained about stomach pains and her eyesight but
refused to see a doctor. When asked if Walter would benefit from having a guardian, Tener stated,
“I am not sure. Maybe it would go a little smoother if she had a guardian. I think—At this point I
think she’s willing to come to an agreement, and I think we can get it done without a guardian
really.”
¶ 18 Dr. Shaw, a psychiatrist, testified that he interviewed Walter. Based on that interview and
the reports of Dr. Jansons, a psychologist who conducted a neuropsychological examination on
Walter, and Dr. Kraus, he concluded that Walter suffered from a delusional disorder that impaired
her executive functioning. Dr. Shaw identified two beliefs as the basis for his diagnosis. First,
Walter believed that she was not married under the catholic doctrine because she and Tener did
not have children. Second, Walter believed that Dr. Kraus intentionally set up his office “in a
manner to cause discomfort or unpleasantness to his patients.” Dr. Shaw also testified that Walter
displayed signs of grandiosity and concluded that Walter had a psychiatric condition. He explained
that Walter’s belief that her handwritten notes should be incorporated into a curriculum for
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physicians and law students exemplified a level of grandiosity because she thought her notes were
so important that they should be incorporated in an area where she lacked training or knowledge.
¶ 19 Dr. Shaw further testified that, at the start of the interview, Walter handed him a gift of
rosary beads. He found the gift showed impairment of her executive functioning because “she was
disinhibited and impulsive in doing so with no real comprehension that this simple act could be
positively portrayed by somebody like me or negatively. I mean, it was her lack of awareness as
to how her act could or might be p[erceiv]ed by me.” He recommended the appointment of a
guardian with authority limited to facilitating the settlement of the dissolution case.
¶ 20 Dr. Argumedo testified that she read the reports from Dr. Shaw, Dr. Kraus, and Dr. Jansons,
and she interviewed Walter. At the start of the interview, Walter gave Dr. Argumedo a rosary.
Walter explained that she worked with nuns and helped them by buying rosaries from them. She
gave away many of the rosaries she purchased.
¶ 21 Dr. Argumedo noted that according to Dr. Jansons, “Walter scored well on the executive
functioning test and did not [show] deficits in executive functioning.” Dr. Argumedo disagreed
with Dr. Shaw’s conclusion that Walter suffered from impaired executive functioning, but Dr.
Argumedo agreed with Dr. Jansons report that Walter did not “suffer[ ] from any cognitive issues
that would affect her capacity to manage her own personal and financial affairs.” Dr. Argumedo
defined delusional disorder as “a false fixed belief” and explained that patients with delusional
disorders “don’t appear odd in any way. So they tend to be people that you wouldn’t know
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otherwise until you hit on that one issue. *** And this is kind of the opposite here.” Dr. Argumedo
noted that Walter behaved oddly in many ways.
¶ 22 Dr. Argumedo testified that Walter knew she was married to Tener. Walter explained to
Dr. Argumedo her discomfort in Dr. Kraus’s office, which related to her medical history. Walter
informed Dr. Argumedo that, at a golf tournament in the early 1990s, Walter fell when lightning
struck a building near the golf course, and the lightning adversely affected her hearing and balance.
According to Dr. Argumedo, Walter “said that since the lightning strike, that she had difficulties
with sensory perception so that things were often overwhelming as far as—particularly smells, but
sounds. And that restricted her in being able to go to certain places, particularly places where there
were a lot of sounds or noises or a lot of people around.” She found Dr. Kraus’s office
overwhelming.
¶ 23 After the lightning strike, doctors treated Walter, and some “considered possibly bipolar
disorder. So as a result she was started on a lot of different psychotropic medications, including
antidepressants and *** she really struggled with the side effects of those medications.” Walter
mostly lived off her disability income since the lightning strike. Dr. Argumedo found Walter did
not suffer from any mental illness, and she remained fully competent to manage her personal and
financial affairs.
¶ 24 Relying on Dr. Shaw’s testimony, the probate court found that Walter lacked executive
functioning that impaired her decision-making skills and that her diagnoses of delusional disorder
and bipolar disorder “substantiates her disability.” The court acknowledged Dr. Argumedo’s
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conflicting expert testimony but found Dr. Shaw more credible based on his experience and
credentials. The court found credible McCormack’s testimony that Walter did not understand the
settlement negotiations and refused to settle even though the agreement was in her favor. The court
also found credible DeCostanza’s testimony that Walter refused to cooperate with her regarding
the dissolution proceeding. The court considered Walter’s testimony and noted that she could not
remember certain details, such as when she married, how many attorneys she had during the
dissolution proceeding, and whether Dr. Shaw evaluated her. The court held that Walter was
“partially capable of making personal and financial decisions” and required a limited guardian
ad litem in the dissolution proceeding. The court appointed R&R Guardianship Services as
Walter’s limited guardian ad litem.
¶ 25 C. Nomination for Guardianship Hearing
¶ 26 In December 2021, Walter asked for leave to file a nomination for guardianship. The trial
court granted leave to file, and Walter nominated her brother, Kenneth, to serve as her limited
guardian ad litem. When the parties met to argue the motion, the court held that Walter could not
seek a new appointment of guardianship after the appointment of R&R Guardianship Services
unless that guardian agreed to withdraw or Walter sought removal and the court conducted proper
removal proceedings. Hence, the court denied Walter’s request to nominate guardian ad litem.
Walter now appeals.
¶ 27 II. ANALYSIS
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¶ 28 On appeal, Walter argues that (1) McCormack failed to comply with a statutory notice
requirement, (2) McCormack did not have standing to bring the original petition for appointment
of guardian ad litem and the subsequent amendments, (3) the circuit court erred by denying
Walter’s motion for summary judgment, (4) the circuit court improperly considered Dr. Kraus’s
medical report in its appointment of guardianship determination, (5) the circuit court’s disability
adjudication and appointment of guardianship findings were against the manifest weight of the
evidence, and (6) the circuit court failed to provide Walter with a meaningful opportunity to
nominate a guardian ad litem.
¶ 29 “The adjudication of disability is a uniquely factual question which is to be made by the
trial court and will not be disturbed upon review unless the trial court’s findings are contrary to
the manifest weight of the evidence.” In re Estate of Barr, 142 Ill. App. 3d 428, 433 (1986). A
finding is against the manifest weight of the evidence only if the opposite conclusion is clearly
evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence presented.
Best v. Best, 223 Ill. 2d 342, 350 (2006). A reviewing court will not substitute its judgment for that
of the circuit court regarding the credibility of witnesses, the weight to be given the evidence, or
the inferences to be drawn. Id. at 350-51.
¶ 30 The probate court has broad discretion in determining whether to appoint a guardian. In re
Estate of Green, 359 Ill. App. 3d 730, 735 (2005). “ ‘This discretion is not unlimited and will be
overturned if the reviewing court finds that the [court] abused its discretion’ [citation], or if its
decision is against the manifest weight of the evidence ***.” Id. at 735.
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¶ 31 A. Notice
¶ 32 Walter contends that McCormack failed to provide actual notice to Walter’s adult siblings
in accordance with section 11a-10(f) of the Probate Act (755 ILCS 5/11a-10(f) (West 2020)).
Walter asserts that, because of McCormack’s failure, the circuit court lacked subject matter
jurisdiction to enter judgment adjudicating Walter as a person with a disability and appointing a
guardian ad litem. McCormack argues that she provided notice to all of Walter’s “known and
reasonably ascertainable” adult siblings as required under section 11a-10(f), and therefore, the
court had subject matter jurisdiction.
¶ 33 Walter does not contest the validity of McCormack’s latest filing, the second amended
petition. Hence, we consider whether McCormack provided sufficient notice of the second
amended petition.
¶ 34 Section 11a-8 of the Probate Act prescribes certain information that must be stated in a
petition for adjudication of disability and for appointment of guardianship. 755 ILCS 5/11a-8
(West 2020). Pertinent here, section 11a-8(e) provides that the petition “must state, if known or
reasonably ascertainable: *** (e) the name and post office addresses of the nearest relatives of the
respondent in the following order: (1) spouse and adult children, parents and adult brothers and
sisters, if any.” 755 ILCS 5/11a-8(e) (West 2020). Section 11a-10 governs the petition’s notice
procedures. 755 ILCS 5/11a-10 (West 2020). It provides, in relevant part, that the petitioner must
give notice of “the time and place of the hearing *** by mail or in person to those persons,
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including the proposed guardian, whose names and addresses appear in the petition and who do
not waive notice, not less than 14 days before the hearing.” 755 ILCS 5/11a-10(f) (West 2020).
¶ 35 The evidence reveals that, at the January 2021 hearing, McCormack stated that she had
been trying to locate Walter’s nine siblings. McCormack asked Walter for her siblings’ contact
information, but Walter did not have it. McCormack was able to contact one sibling, Kenneth.
Kenneth provided his address but refused to provide any additional contact information for the
other siblings. With the help of DeCostanza, McCormack learned that three of the siblings worked
for the same employer. DeCostanza called the employer, verified that the siblings worked there,
and left a message. However, she never received a return call. McCormack also posted three
notices of the plenary petition for guardianship in the Chicago Daily Law Bulletin and was able to
get the contact information for one other sibling, Rita. Rita’s and Kenneth’s names and addresses
appeared in the second amended petition. McCormack gave notice to Kenneth and Rita by mail.
Considering these facts, we find that the petition sufficiently listed all relatives, including Walter’s
adult siblings, who were known or reasonably ascertainable to petitioner in accordance with
sections 11a-8(e) and 11a-10(f).
¶ 36 We note that our supreme court’s decisions in Belleville Toyota, Inc. v. Toyota Motor Sales,
U.S.A., Inc., 199 Ill. 2d 325 (2002), and People v. Castleberry, 2015 IL 116916, distinguished
statutory authority and jurisdictional authority conferred by the constitution. In Belleville Toyota,
Inc., the supreme court stated:
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“Characterizing the requirements of a statutory cause of action as nonwaivable
conditions precedent to a court’s exercise of jurisdiction is merely another way of
saying that the circuit court may only exercise that jurisdiction which the legislature
allows. We reiterate, however, that the jurisdiction of the circuit court is conferred
by the constitution, not the legislature. Only in the area of administrative review is
the court’s power to adjudicate controlled by the legislature.” Belleville Toyota,
Inc., 199 Ill. 2d at 336.
Thus, if the circuit court has proper jurisdiction under the constitution, a statutory violation does
not divest the court’s jurisdiction over the entry of judgment of disability adjudication and
appointment of guardianship. See In re G.L., 133 Ill. App. 3d 1048, 1052 (1985) (holding that the
question of whether an individual received statutory notice is “jurisdictionally insignificant”).
¶ 37 Here, McCormack established subject matter jurisdiction because the petition alleges a
definite and concrete controversy under the Probate Act. See Ill. Const. 1970, art. VI, § 9 (the
jurisdiction of the circuit court extends to “all justiciable matters”); Belleville Toyota, Inc., 199 Ill.
2d at 335 (a justiciable matter is a “controversy appropriate for review by the court, in that it is
definite and concrete, as opposed to hypothetical or moot, touching upon the legal relations of
parties having adverse legal interests”); Goodwin v. Matthews, 2018 IL App (1st) 172141, ¶ 20.
Therefore, the circuit court had subject matter jurisdiction in this case.
¶ 38 B. Standing
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¶ 39 Walter argues that the circuit court in the marriage dissolution proceeding did not have
authority to appoint McCormack as her guardian ad litem and, consequently, McCormack did not
have standing to file the original petition for appointment of guardianship and the subsequent
amendments. McCormack alleges that she had statutory standing to file the petition because her
legal experience and credentials made her a “reputable person” under section 11a-3 of the Probate
Act (755 ILCS 5/11a-3 (West 2020)).
¶ 40 Section 11a-3(a) governs the filing of the petition for adjudication of disability and
appointment of guardian. It provides:
“Upon the filing of a petition by a reputable person or by the alleged person with a
disability himself or on its own motion, the court may adjudge a person to be a
person with a disability, but only if it has been demonstrated by clear and
convincing evidence that the person is a person with a disability as defined in
Section 11a-2.” 755 ILCS 5/11a-3(a) (West 2020).
¶ 41 Section 11a-3(a) allows a “reputable person” to file a petition. The statute does not define
the term. Thus, we must use the rules of statutory construction to construe the meaning of
“reputable person” under section 11a-3(a). In construing a statute, the goal of the court is to
ascertain and effectuate the intent of the legislature in enacting the provision. Cassidy v. China
Vitamins, LLC, 2018 IL 122873, ¶ 17. The statutory language, given its plain and ordinary
meaning, is generally the most reliable indicator of that legislative intent. Id. Where the meaning
of the statute is unclear from a reading of its language, courts may look beyond the statutory
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language and consider the purpose of the law, the evils it was intended to remedy, and the
legislative history of the statute. Johnston v. Weil, 241 Ill. 2d 169, 175-76 (2011). The issue of
statutory construction is a question of law, and our review is de novo. Id. at 176.
¶ 42 McCormack relies on Nees v. Doan, 185 Ill. App. 3d 122 (1989), and In re Petition of
Berkowitz, 88 Ill. App. 2d 1 (1967), to support her argument that she was a “reputable person”
under section 11a-3(a). In Nees, the court held that the petitioner was not a “reputable person”
under the Adoption Act due to his criminal history, his continued pattern of deception, and his
employment instability. Nees, 185 Ill. App. 3d at 126-27. In Berkowitz, the court held that
petitioner was not a reputable person under the Adoption Act because of his discharge from
employment for committing forgery. Berkowitz, 88 Ill. App. 2d 1. Both Nees and Berkowitz
demonstrate that a person’s character traits, rather than legal status, determine whether he is a
“reputable person.”
¶ 43 We believe the rationale in Nees and Berkowitz is applicable here. First, although Nees and
Berkowitz involve adoption proceedings, our supreme court held that “[i]n construing the
provisions of a statute[,] it is not only proper, but often necessary, to consider the provisions of
other statutes relating to the same subject matter for the purpose of determining legislative intent.”
Petterson v. City of Naperville, 9 Ill. 2d 233, 243 (1956). Second, the plain language of section
11a-3 does not limit “reputable person” to a person’s status as guardian ad litem. Third, the
rationale in Nees and Berkowitz aligns with the Probate Act’s provision that the statute be liberally
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construed. 755 ILCS 5/1-9 (West 2020). Therefore, we find that a “reputable person” under section
11a-3 pertains to a person’s character.
¶ 44 Here, the record shows that McCormack had been practicing family law for 29 years and,
for over 20 years, has been a guardian or appointed representative about 20 times each year. The
record is devoid of any evidence that McCormack has any traits that reflect negatively on her
character. Therefore, we find that, albeit her status as the guardian ad litem, petitioner had statutory
standing to file the petition under section 11a-3(a). Consequently, we need not address the circuit
court’s authority to appoint McCormack in the marriage dissolution proceedings.
¶ 45 C. Motion for Summary Judgment
¶ 46 Walter argues that the circuit court erred by dismissing her motion for summary judgment.
Specifically, Walter asserts that no genuine issue of fact exists where the two medical experts, Dr.
Shaw and Dr. Argumedo, provided conflicting opinions on whether Walter was a person with a
disability. Walter claims that the conflicting opinions made it “legally impossible” for McCormack
to show by clear and convincing evidence that Walter was a person with a disability.
¶ 47 Generally, when a motion for summary judgment is denied and the case proceeds to trial,
the denial of summary judgment is not reviewable on appeal because the result of any error is
merged into the judgment entered at trial. Belleville Toyota, Inc., 199 Ill. 2d at 355. “The rationale
for this rule is that review of the denial order would be unjust to the prevailing party, who obtained
a judgment after a more complete presentation of the evidence.” Id. at 355-56. “But where the
issue raised in the summary judgment motion is one of law and would not be before the jury at
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trial, the order denying the motion does not merge and may be reviewed by the appellate court.”
Labate v. Data Forms, Inc., 288 Ill. App. 3d 738, 740 (1997); see Belleville Toyota, 199 Ill. 2d at
355.
¶ 48 This court has held that conflicting expert opinions demonstrate that factual issues exist.
Nicholas v. City of Alton, 107 Ill. App. 3d 404, 408 (1982) (finding the court’s grant of summary
judgment improper where conflicting expert opinions demonstrated factual issues existed).
Furthermore, it is well-established that the trier of fact considers the weight to be given to
conflicting expert opinions. Walski v. Tiesenga, 72 Ill. 2d 249, 260 (1978); Dabros v. Wang, 243
Ill. App. 3d 259, 264 (1993); Jarke v. Jackson Products, Inc., 282 Ill. App. 3d 292, 300 (1996).
¶ 49 We find that the conflicting expert medical opinions regarding whether Walter was a
person with a disability is an issue of fact. Accordingly, any errors resulting from the circuit court’s
denial of the motion for summary judgment are merged into the trial and not reviewable on appeal.
¶ 50 D. The Circuit Court’s Consideration of Dr. Kraus’s Medical Report
¶ 51 Walter alleges that the circuit court abused its discretion when it considered Dr. Kraus’s
medical report in its disability adjudication finding because the report was never admitted into
evidence. McCormack claims that Walter forfeited this issue where she did not object or file a
posttrial motion and where Walter elicited testimony about the report during trial. McCormack
also argues that the court properly considered Dr. Kraus’s report under Illinois Rules of Evidence
703 (eff. Jan. 1, 2011).
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¶ 52 We agree with McCormack that Walter has forfeited this issue. Generally, to preserve an
issue for review, a defendant must both object at trial and raise the issue in a written posttrial
motion. People v. Lewis, 223 Ill. 2d 393, 400 (2006). Although Walter filed a motion in limine to
exclude Dr. Kraus’s report, the circuit court never ruled on the motion and the case proceeded to
trial. Walter never objected to the use of the report at trial and did not file a posttrial motion on the
issue. See People v. Rossi, 52 Ill. 2d 13, 17 (1972) (“The failure of a trial court to rule on objections
to evidence is not open to review at the instance of one who failed to request a ruling when the
court did not make one, or in some other manner pointed out to the trial judge his failure to act.”).
Furthermore, Walter elicited testimony regarding the report during trial. “A party cannot complain
of error which he induced the court to make or to which he consented.” McMath v. Katholi, 191
Ill. 2d 251, 255 (2000).
¶ 53 Even considering Walter’s argument, we believe the circuit court’s reliance on Dr. Shaw’s
opinion, which was based in part on Dr. Kraus’s report, was proper. The parties agree that the
medical experts’ reliance on Dr. Kraus’s report when formulating their opinions was proper under
Illinois Rule of Evidence 703 (eff. Jan. 1, 2011) (“The facts or data in the particular case upon
which an expert bases an opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject, the facts or data need not be admissible in
evidence.”). Moreover, whether the circuit court placed “significant reliance” on Dr. Shaw’s bases,
which included Dr. Kraus’s report, is a proper consideration for the trier of fact, who determines
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the weight given to the testimony. See People v. Sutherland, 223 Ill. 2d 187, 242 (2006) (“The
weight to be given the witnesses’ testimony, the credibility of the witnesses, resolution of
inconsistencies and conflicts in the evidence, and reasonable inferences to be drawn from the
testimony are the responsibility of the trier of fact.”). Thus, the circuit court’s consideration of Dr.
Kraus’s report in its findings was not an abuse of discretion.
¶ 54 E. The Adjudication of Disability and Appointment of Guardian Ad Litem
¶ 55 Walter argues that the circuit court’s finding that she was a “person with a disability” under
section 11a-2 of the Probate Act (755 ILCS 5/11a-2 (West 2020)) was against the manifest weight
of the evidence because Dr. Shaw and Dr. Argumedo had conflicting medical opinions and the lay
witnesses provided no factual support for Dr. Shaw’s medical expert testimony. McCormack
claims that the circuit court’s finding was not against the manifest weight of the evidence and
Walter improperly requests that this court reweigh the court’s findings.
¶ 56 The circuit court may adjudge a person to be a person with a disability. 755 ILCS 5/11a-3
(West 2020). Section 11a-2 defines a “person with a disability” as
“a person 18 years or older who (a) because of mental deterioration or physical
incapacity is not fully able to manage his person or estate, (b) is a person with
mental illness or a person with a developmental disability and who because of his
mental illness or developmental disability is not fully able to manage his person or
estate, or (c) because of gambling, idleness, debauchery, or excessive use of
intoxicants or drugs, so spends or wastes his estate as to expose himself or his
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family to want or suffering, or (d) is diagnosed with fetal alcohol syndrome or fetal
alcohol effects.” 755 ILCS 5/11a-2 (West 2020).
¶ 57 If the court adjudges a person to be a person with a disability, the court may appoint the
following:
“(1) a guardian of his person, if it has been demonstrated by clear and convincing
evidence that because of his disability he lacks sufficient understanding or capacity
to make or communicate responsible decisions concerning the care of his person,
or (2) a guardian of his estate, if it has been demonstrated by clear and convincing
evidence that because of his disability he is unable to manage his estate or financial
affairs, or (3) a guardian of his person and of his estate.” 755 ILCS 5/11a-3(a) (West
2020).
¶ 58 Here, the evidence supports the trial court’s finding that Walter had a mental illness under
section 11a-2(b). Dr. Shaw testified that Walter’s delusional disorder caused her to lack executive
functioning when making well-reasoned decisions. Dr. Shaw provided two bases for his belief that
Walter suffered from delusional disorder. First, Walter believed that she was not married under
the catholic doctrine because she and Tener did not have children. Second, Walter believed Dr.
Kraus intentionally set up his office “in a manner to cause discomfort or unpleasantness to his
patients.” Dr. Shaw also opined that Walter had a psychiatric condition because she exhibited
signs of disinhibition, grandiosity, and bizarre ideation. For instance, Walter believed her
handwritten notes should be incorporated into a curriculum for physicians and law students.
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Walter’s belief showed a level of grandiosity because she believed her notes were so important
that they should be incorporated in an area where she lacked training or knowledge. Dr. Shaw also
found that Walter’s rosery bead gift showed impairment of her executive functioning because her
decision was impulsive and she did not comprehend how her decision may be negatively received
by Dr. Shaw.
¶ 59 Tener testified that Walter distrusted people and refused to let guests into her home for the
past five years. Walter complained of stomach pains and eyesight problems but refused to seek
medical assistance. DeCostanza testified that she had difficulty getting in contact with Walter
about her divorce settlement. Walter was not answering DeCostanza’s phone calls and would not
answer her door when DeCostanza went to her home. McCormack testified that Walter’s behavior
was unpredictable. Walter was either kind to McCormack or yelled and accused McCormack of
lying.
¶ 60 Although Dr. Argumedo opined that Walter did not exhibit “deficits in executive
functioning,” the circuit court, being in the best position to assess a witness’s credibility and
demeanor, found Dr. Shaw more credible based on his experience handling guardianship
evaluations. See Greene v. City of Chicago, 73 Ill. 2d 100, 110 (1978) (“especially where the
testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of
review to observe the conduct of the witnesses while testifying, to determine their credibility, and
to weigh the evidence and determine the preponderance thereof”).
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No. 1-21-1600
¶ 61 Additionally, the evidence reveals that, due to Walter’s mental illness, she was unable to
manage her estate and financial affairs pertaining to the marriage dissolution case. Tener testified
that he assisted Walter with general home maintenance and tasks such as grocery shopping and
paying bills. During the marriage dissolution proceeding, Walter went through several lawyers but
did not remember how many attorneys she had in the marriage dissolution proceeding.
McCormack testified that, in May 2019, Walter and Tener reached a proposed settlement
agreement that was “very much in her favor” but she refused to accept the agreement.
¶ 62 The evidence indicates that Walter had a mental illness and that she was unable to manage
her financial affairs. Thus, we hold that the circuit court’s order adjudicating Walter disabled and
appointing a guardian ad litem for the limited purpose of resolving Walter’s marriage dissolution
case was not against the manifest weight of the evidence.
¶ 63 F. Guardianship Nomination
¶ 64 Walter argues that the circuit court failed to provide her with a meaningful opportunity to
exercise her right to nominate a guardian ad litem under section 11a-12 of the Probate Act (755
ILCS 5/11a-12 (West 2020)). McCormack asserts that Walter cannot argue that she did not have
an opportunity to exercise her nomination because she failed to nominate a guardian before the
court appointed R&R Guardianship Services as guardian ad litem. McCormack also contends that
section 11a-12 does not permit Walter to nominate a guardian after the appointment of R&R
Guardianship Services.
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No. 1-21-1600
¶ 65 The record reveals that, before R&R Guardianship Services was appointed guardian
ad litem, Walter had not expressed her nomination for guardian. After the circuit court appointed
R&R Guardianship Services, Walter asked for leave to file a nomination to appoint her brother,
Kenneth, as guardian, which the court granted. At the hearing, the circuit court held that Walter
could not seek a new appointment of guardianship unless she filed a removal citation to commence
removal proceedings. On appeal, the parties dispute whether the Probate Act allows the circuit
court to consider Walter’s nomination for guardian after a guardian has been appointed. We turn
to the rules of statutory construction to determine whether the Probate Act allows for the
appointment of guardianship in this circumstance.
¶ 66 As previously stated, in construing a statute, the goal of the court is to ascertain and
effectuate the intent of the legislature in enacting the provision. Cassidy, 2018 IL 122873, ¶ 17.
The statutory language, given its plain and ordinary meaning, is generally the most reliable
indicator of that legislative intent. Id. The issue of statutory construction is a question of law, and
our review is de novo. Johnston, 241 Ill. 2d at 176.
¶ 67 Section 11a-12 of the Probate Act governs the circuit court’s order of appointment of
guardian ad litem after a person is adjudged a person with a disability. See 755 ILCS 5/11a-15
(West 2020). Subsection (d) provides:
“The selection of the guardian shall be in the discretion of the court, which shall
give due consideration to the preference of the person with a disability as to a
guardian, as well as the qualifications, of the proposed guardian, in making its
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No. 1-21-1600
appointment. However, the paramount concern in the selection of the guardian is
the best interests and well-being of the person with a disability.” 755 ILCS 5/11a-
12(d) (West 2020).
¶ 68 The record shows that the circuit court found that it had no authority to reconsider its
guardianship order that appointed R&R Guardianship Services and consider whether Walter’s
proposal that her brother be appointed be accepted instead. The guardianship order entered was a
judgment entered in a non-jury case. Our Code of Civil Procedure provides that:
“In all cases tried without a jury, any party may, within 30 days after the entry of
the judgment or within any further time the court may allow within the 30 days or
any extensions thereof, file a motion for a rehearing, or a retrial, or modification of
the judgment or to vacate the judgment or for other relief.” 735 ILCS 5/2-1203
(West 2020).
The order appointing R&R Guardianship Services as guardian was entered on November 29, 2021.
Walter filed her nomination to appoint her brother on December 2, 2021. The motion suggesting
an alternative guardian was clearly a request that the judgment be modified. See In re Estate of
K.E.J., 382 Ill. App. 3d 401, 423-24 (2008) (concluding that a motion asking for the return of
attorney fees to an estate was a motion “directed against” the judgment under section 2-1203
because it sought a material change in the terms of the judgment). The motion was timely filed
within 30 days of the guardianship judgment.
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No. 1-21-1600
¶ 69 The record suggests that the judge believed that Kenneth might be a better guardian but
that he could not reconsider that appointment unless Walter filed a removal citation. After Kenneth
addressed the court, the judge stated,
“I see a family member come forward and willing to act on behalf of a family
member and someone that certainly has my ward’s best interests at heart; but there,
procedurally, *** my hands are locked at this particular time. There’s not a great
deal I can do to undo what I’ve already done. *** I apologize. I wish I could undo
what I’ve done.”
¶ 70 Our supreme court has ruled that reversable error can exist when a circuit court has refused
to exercise discretion “in the erroneous belief that it has no discretion as to the question presented.”
People v. Queen, 56 Ill. 2d 560, 565 (1974).
¶ 71 Here, the trial court believed it had no discretion to reconsider its order appointing R&R
Guardianship Services, but the court did have such discretion. Hence, we find that the circuit court
abused its discretion by failing to exercise discretion. Id.¶ 72 In light of the court’s findings, we hold that Walter was not given a meaningful opportunity
to exercise her right to suggest the nomination of a guardian ad litem due to the circuit court’s
mistaken belief that it could not reconsider its appointment of R&R Guardianship Services. We
remand for the circuit court to hold a hearing on Walter’s request that the guardianship order be
amended to nominate her brother for the limited purpose of resolving her marriage dissolution
case.
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No. 1-21-1600
¶ 73 III. CONCLUSION
¶ 74 We find that McCormack had standing to bring the petition for appointment of guardian
ad litem and provided sufficient notice to all known or reasonably ascertainable next of kin in
accordance with the Probate Act. We also find that the circuit court properly considered Dr.
Kraus’s medical report in the disability adjudication determination and the court’s ultimate
findings of disability and appointment of guardianship were not against the manifest weight of the
evidence. However, we find the circuit court abused its discretion when it found that it had no
authority to reconsider its guardianship order and appoint Walter’s brother as her guardian. Hence,
the court did not provide Walter with a meaningful opportunity to exercise her nomination for
guardian ad litem, and we remand to the circuit court for a hearing on Walter’s request to nominate
her brother. We declined to address Walter’s motion for summary judgment argument where any
alleged errors merged into the final judgment. Accordingly, we affirm the circuit court’s finding
that Walter is a person with a disability, we reverse the order finding that the court had no authority
to reconsider its guardianship order, and we remand to the circuit court with directions.
¶ 75 Affirmed in part and reversed in part; cause remanded.
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No. 1-21-1600
In re Estate of Walter, 2022 IL App (1st) 211600Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2019-P-8078;
the Hon. Jesse Outlaw, Judge, presiding.
Attorneys Jerome W. Pinderski Jr., of Pinderski & Pinderski, Ltd., of
for Palatine, for appellant.
Appellant:
Attorneys Leynee C. Flores, Jonathan D. Morton, and Toni J. Falligant, of
for Golan Christie Taglia LLP, of Chicago, for appellee.
Appellee:
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