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12/28/94 ESTATE ROGER E. GUSTAFSON v. GLENN

December 28, 1994

IN RE ESTATE OF ROGER E. GUSTAFSON, A DISABLED PERSON (HEIDY TERLIZZI, AS COGUARDIAN OF THE PERSON OF ROGER E. GUSTAFSON, AND BRITTAIN AND KETCHAM, P.A., PETITIONER-APPELLEES,
v.
GLENN GUSTAFSON, INDIV. AND AS COGUARDIAN OF THE PERSON OF ROGER E. GUSTAFSON, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Kane County. No. 92-P-578. Honorable R. Peter Grometer, Judge, Presiding.

The Honorable Justice Thomas delivered the opinion of the Court: Inglis, P.j., and Geiger, J., concur.

The opinion of the court was delivered by: Thomas

JUSTICE THOMAS delivered the opinion of the Court:

Respondent, Glenn Gustafson, appeals from the award of fees granted to petitioner, Heidy Terlizzi as coguardian of the person of Roger E. Gustafson, a disabled person, and to another petitioner, the law firm of Brittain & Ketcham, P.C. (Brittain & Ketcham), which acted as Terlizzi's attorney. Glenn Gustafson, brother of Roger Gustafson, appeals individually and as a coguardian of the person of Roger Gustafson, contending that the award of fees must be reversed because it was entered without notice to him as required by Kane County local rules and by Supreme Court Rule 104(b) (134 Ill. 2d R. 104(b)).

On November 19, 1992, Lewis Terlizzi, an attorney with Brittain & Ketcham, petitioned the court to appoint Terlizzi's wife, Heidy Terlizzi, as temporary guardian of the estate and person of Roger E. Gustafson, Heidy Terlizzi's ex-husband. The court granted the petition. At the hearing to adjudge Roger Gustafson a disabled person, Heidy Terlizzi requested appointment as a plenary guardian for both the estate and person of Roger. The court found Roger Gustafson to be a disabled person without the capacity to communicate responsible decisions concerning the care of his person and unable to manage his estate or financial affairs. The court appointed Heidy Terlizzi and Glenn Gustafson as coguardians of the person of Roger Gustafson. Heidy Terlizzi was represented throughout the proceedings by her husband's firm, Brittain & Ketcham. The Old Kent Bank of St. Charles (Bank) was named plenary guardian of the estate of Roger Gustafson. Brittain & Ketcham also represented the Bank.

A first and final report and account of the temporary guardian of the estate, Heidy Terlizzi, showed Roger Gustafson's assets to be valued at $515,000. In the account, Heidy Terlizzi and Brittain & Ketcham, as lawyers for Heidy Terlizzi, both requested fees for their services in connection with the estate. Brittain & Ketcham requested attorney's fees in the amount of $4,100 and fees in the amount of $2,800 for Heidy Terlizzi's services as guardian. On January 15, 1993, the court approved the final report and account and granted the fees requested. On January 20, 1994, the Bank filed a document acknowledging receipt of the final account and report, waiving notice of the hearing on the final account, and consenting to the entry of an order approving the final account and report and allowing the fees requested.

Respondent, as coguardian of the person of Roger Gustafson, filed a motion to vacate the order approving the report and account. The motion to vacate alleged that the court's order was entered without notice to respondent; that no accounting of billable time or rates was introduced upon which the court could make a determination of reasonableness; and that respondent had been told that Heidy and Lewis Terlizzi had no expectation of payment. On March 2, 1993, the Bank, the guardian of the estate of Roger Gustafson, through its attorneys, Brittain & Ketcham, filed a motion to dismiss respondent's motion to vacate. In the motion to dismiss, the Bank alleged, among other things, that respondent was not entitled to notice of the attorney's fees petition.

The court granted the motion to dismiss the motion to vacate on November 30, 1993, but ordered that all further petitions for fees and costs be given to respondent, as coguardian of the person of Roger E. Gustafson and to the guardian ad litem. On December 30, 1993, respondent filed a timely notice of appeal of the dismissal of the motion to vacate the attorney fees.

On appeal, respondent first contends that local Rule 18.19(a) ofthe Rules of the Circuit Court of Kane County (16th Jud. Cir. R. 18.19(a)(1993)) required Heidy Terlizzi and her attorneys, Brittain & Ketcham, to give respondent notice of the hearing on petitioners' request for fees. That rule provides:

"To be entitled to have fees, whether paid or to be paid, fixed on petition or to have credit for fees on any estate account, a personal representative must show disclosure of record of the fee dollar amount by signed consent from or notice to all interested persons as defined in the Probate Act Section 1-2-11. If by notice, it shall state the time certain for hearing." (16th Jud. Cir. R. 18.19(a) (1993).)

Section 1-2.11 of the Probate Act of 1975 (Act) states:

"'Interested person' in relation to any particular action, power or proceeding under this Act means one who has or represents a financial interest, property right or fiduciary status at the time of reference which may be affected by the action, power or proceeding involved, including without limitation an heir, legatee, creditor, person entitled to a spouse's or child's award and the representative." 755 ILCS 5/1-2.11 (West 1992).

It is respondent's further contention that the request by petitioners for fees, which states only in general terms the work performed, was not sufficient compliance with the local rule 18.19(e) which requires an itemized petition. (16th Jud. Cir. R. 18.19(e) (1993).) The petition submitted here stated only that the attorneys provided services to Heidy Terlizzi in the form of obtaining her appointment as temporary guardian, obtaining the appointment of permanent coguardians of the person and a permanent guardian of the estate for Roger Gustafson, and preparing the inventory and the final account. The attorneys claimed more than 25 hours of time were spent in this pursuit and they requested a total of $4,100, plus costs. The petition requested $2,800 for Heidy Terlizzi's fees, stating that Heidy Terlizzi spent in excess of 80 hours providing care and placement of Roger Gustafson, paying the bills of Gustafson, caring for his residence, and assisting with the preparation of the final report and account.

In response to respondent's contention that he was entitled to notice, petitioners contend that respondent is not an "interested person" within the meaning of the Act and so was not entitled to notice. They further contend that the Bank, as the only interested party, ...


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