Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carol M. Farwell v. Senior Services Associates

May 22, 2012

CAROL M. FARWELL,
PLAINTIFF-APPELLANT,
v.
SENIOR SERVICES ASSOCIATES, INC., ASTA CARE CENTER OF ELGIN, AND DANIEL G. PARSONS,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Kane County. No. 10-L-232 Honorable Judith M. Brawka, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

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.

¶ 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 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).

ΒΆ 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.