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April 26, 1995


Appeal from the Circuit Court of McHenry County. No. 93-P-60. Honorable Henry L. Cowlin, Judge, Presiding.

Released for Publication May 31, 1995.

Presiding Justice McLAREN delivered the opinion of the court: Inglis and Rathje, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

Respondent, Rita Mary Serafin, a/k/a Rita Mary Krolopp, a/k/a Rita Mary Seraphim, appeals from the order of the circuit court of McHenry County directing her to pay the fees of the guardian ad litem, John E. Ridgway. We affirm.

Petitioners, Joseph and John Krolopp, filed a petition for the appointment of a guardian of the estate of their mother, Rita Mary Serafin. The petition averred that it was brought to preserve the financial and personal well being of Rita, who was believed to suffer from a chronic mental disturbance or personality disorder and was unable to make responsible decisions with respect to the care of her estate valued at over $500,000. The petition filed on March 15, 1993, alleged that Rita's property would be lost unless certain steps were taken to prevent the forfeiture by default of her property which was then the subject of a forfeiture proceeding in case No. 92-CH-210. Petitioners also sought the appointment of a temporary guardian of Rita's estate. See 755 ILCS 5/11a-4 (West 1992).

Following the filing of the petition on March 15, 1993, the court-appointed attorney John E. Ridgway as guardian ad litem for Rita (GAL), and on March 24, 1993, the court appointed James E. Berner as Rita's counsel and ordered a medical examination of respondent. In April, Rita's counsel moved to dismiss the petition against her and sought Supreme Court Rule 137 sanctions, arguing that the petition was not well founded in fact or law. See 134 Ill. 2d R. 137.

On April 16, 1993, the court entered an agreed order for the temporary guardianship of Rita's estate and appointed Mark and John Krolopp as limited coguardians of her estate; the order specified certain duties they were to undertake with respect to Rita's property, including those necessary to redeem the property.

On June 11, 1993, Ridgway, the GAL, moved for an order for the payment of his professional fees in the amount of $1,168.75. In January 1994, Rita moved to dismiss the cause "with prejudice" (for want of prosecution) and to impound the records, stating that the temporary 60-day guardianship had expired and that there had been no further proceedings. On May 31, 1994, petitioners, by answer, sought to resist the assessment of GAL fees against them and argued that they should be assessed against Rita who denied that she was liable by statute or otherwise for the payment of such fees. On July 22, 1994, after hearing testimony, the court found that Rita was able to pay the GAL's fees and ordered her to pay the $1,168.75, an amount which it found to be reasonable. The court also found there was no just reason to delay enforcement or appeal of the order. (See 134 Ill. 2d R. 304(a).) The cause was dismissed on August 15, 1994, and the records were impounded. On the same date, Rita filed her notice of appeal, and the court stayed the order for the payment of fees.

This court has jurisdiction because the branch of the litigation concerning the appointment of temporary guardians resulted in an order which fixed the rights of the parties with respect to that issue; the temporary guardianship has now expired. The resulting GAL fees were assessed, and an order terminating that part of the case was entered with a finding making that order appealable. But see Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, 70 Ill. Dec. 238, 449 N.E.2d 112 (an order of dismissal for want of prosecution is not ordinarily final and appealable). See also In re Estate of Nelson (1993), 250 Ill. App. 3d 282, 285, 190 Ill. Dec. 212, 621 N.E.2d 81 (in estate proceeding, order which finally determines right or status of party may be appealed under Supreme Court Rule 304(b)(1) (134 Ill. 2d R. 304(b)(1)).

Since there is no appellee's brief filed in this appeal, we decide the appeal in accordance with the guidelines of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Respondent argues that she is not liable for the fees of the GAL because there was never a finding that she was disabled, petitioners never sought a hearing on the petition for the appointment of a permanent guardian and the case was dismissed for want of prosecution. Respondent asserts that she should not be held liable for the GAL's fees where it appears she was not adjudicated a "disabled person" and there was no "administration" of her estate. See, e.g., In re Prior (1983), 116 Ill. App. 3d 666, 72 Ill. Dec. 423, 452 N.E.2d 676 (applying strict rule of construction, the majority held that the court erred in taxing costs for services of a GAL, and a temporary guardian against an allegedly disabled respondent where the petition for permanent guardian was dismissed, private counsel appeared for respondent, and statute provided that GAL fees were to be paid in the "due course of administration" and there was no "administration" required in the case); 755 ILCS 5/11a-10(a), (b), (c) (West 1992); see also In re Estate of Stoica (1990), 203 Ill. App. 3d 225, 148 Ill. Dec. 555, 560 N.E.2d 1152 (County of Cook, as petitioner, could not be required to pay GAL's fees where there was no finding that respondent could not pay the fees and statute provided that State could be directed to pay fees if respondent is unable to pay).

Respondent argues that the litigation was unnecessary or perhaps frivolous and therefore it would be unfair or inequitable that she be held liable for the compensation of the GAL. To the extent respondent argues that the litigation was, in fact, frivolous, it is not a question properly before us, and we will not reach that question to resolve the issue here. The question we address is: whether the trial court has the statutory authority to tax the fees against the respondent when it has appointed an attorney and a GAL to represent the respondent in the proceeding; it only appoints a temporary guardian; the respondent does not resist the appointment of the GAL; there is no finding that the appointment of the GAL was not necessary; and the court determines that the respondent is able to pay the fees. Notwithstanding the decision in Prior (116 Ill. App. 3d 666), we conclude the circuit court's decision here was authorized by statute and was not an abuse of discretion.

Section 11a-3 of the Probate Act of 1975 (Act)(755 ILCS 5/11a-3 (West 1992)) provides that "upon the filing of a petition by a reputable person or by the alleged disabled person himself or on its own motion, the court may adjudge a person to be a disabled person" (as defined by the Act) and may appoint a guardian of the person "if because of the disability the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person"; the court may appoint a guardian of his estate "if because of his disability he is unable to manage his estate or financial affairs"; the appointment of a guardian for both person and estate is also authorized. (755 ILCS 5/11a-3 (West 1992).) Prior to such appointment under the Act, the court may appoint a "temporary guardian upon a, showing of the necessity therefor for the welfare and protection of the disabled person or his estate on such notice and subject to such ...

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