In Re ESTATE OF JOHN P. HANLEY, an Alleged Disabled Person, Respondent-Appellee, (James Hanley, Petitioner-Appellant and Cross-Appellee,
Margaret Hanley, Respondent-Appellee and Cross-Appellant).
In an action seeking a guardianship for petitioner’s father and an order of protection against petitioner’s sister, the trial court properly dismissed the petitions, since petitioner did not present any facts rebutting the affirmative matter respondent presented establishing that he was capable of managing his affairs, even though he was a high-risk adult with disabilities; furthermore, he did not have a guardian, he had never been adjudicated an incompetent adult, and pursuant to section 103(2) of the Domestic Violence Act, no proceedings on behalf of such an adult could proceed without the approval of his guardian.
Appeal from the Circuit Court of Peoria County, No. 10-P-493; the Hon. Michael E. Brandt, Judge, presiding.
William R. Kohlhase and Mark D. Walton (argued), both of Miller, Hall & Triggs, of Peoria, for appellant.
Susan Dawson-Tibbits, of Johnson, Bunce & Noble, P.C., and David B. Radley (argued), both of Peoria, for appellee John P. Hanley.
J. Reed Roesler (argued), of Davis & Campbell, of Peoria, for appellee Margaret Hanley.
Panel JUSTICE McDADE delivered the judgment of the court, with opinion. Justices Holdridge and Schmidt concurred in the judgment and opinion.
¶ 1 This appeal has proceeded in two stages: first, James's challenge to the dismissal of his petitions for guardianship and an order of protection and second, the appeal by James and cross-appeal by Margaret of the matter of sanctions. Separate briefing was submitted and oral arguments were separately heard at each stage.
¶ 2 The petitioner, James Hanley, filed a two-count petition for the appointment of guardians for his father, John P. Hanley (count I), and for an order of protection against the respondent, Margaret Hanley, who is James's sister and John's daughter (count II). John and Margaret separately moved to dismiss the count of James's petition which pertained to each. The trial court granted both motions to dismiss. James appeals the dismissals, contending that the trial court erred because: (1) evidence presented by John was insufficient to support dismissal under section 2-619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619 (West 2010)); (2) the petition alleged sufficient facts under section 2-615 (735 ILCS 5/2-615 (West 2010)) of the Code to state claims for guardianship and an order of protection, and to preclude dismissal under the terms of the Probate Act of 1975 (the Probate Act) (755 ILCS 5/1-1 et seq. (West 2010)); and (3) the court failed to adjudicate John's need for a guardian, precluding dismissal of James's request for an order of protection under section 103(2) of the Illinois Domestic Violence Act of 1986 (Domestic Violence Act) (750 ILCS 60/103(2) (West 2010)). We affirm the trial court on these dismissals.
¶ 3 Following dismissal, separate motions for sanctions were filed by John and Margaret against James in the trial court. The court denied the motion filed by John but awarded sanctions to Margaret. John did not appeal the denial of his sanction motion; however, James has appealed from the award of sanctions to Margaret, claiming that the trial court erred when it (1) denied his motion to strike John's and Margaret's motions for sanctions for failure to identify false statements in his petition; and (2) placed the burden of production of evidence with James. James also contends the trial court abused its discretion when it granted Margaret's motion for sanctions because (3) it rendered the decision based on untimely facts and unasserted grounds, in the absence of any false allegations, and despite James's objectively reasonable basis for filing his petition; and when it awarded attorney fees to Margaret because (4) she did not pay her own fees and (5) the court did not permit James's counsel to question Margaret's counsel.
¶ 4 Margaret has cross-appealed on sanctions contending that the trial court made an inadvertent error when it computed the attorney fees it awarded her and that this court should correct the error.
¶ 5 We affirm the award of sanctions and correct the amount of the award.
¶ 6 Margaret has also moved in this court for Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994) sanctions against James for bringing the instant appeal. We deny that request.
¶ 7 FAMILY AND PROCEDURAL HISTORY
¶ 8 John P. Hanley was 76 years old at the time the petition for guardianship and order of protection was filed. He is the widowed father of 10 adult children–5 daughters and 5 sons. He made his residence with his daughter, Maureen Smith, and her husband Tom.
¶ 9 In 1992, John severed business and personal relationships with his sons, including the petitioner, James, and at the time the petition was filed, that estrangement had persisted for 18 years. Prior to the break, John began removing some family members from employment at his business, A. Lucas & Sons (Lucas). His son, Peter Hanley, set up a competing business and John cut off relationships with Peter and all family members who aligned themselves with him.
¶ 10 The continued existence of the estrangement was confirmed in court proceedings in the spring of 2005 and in the following August 1, 2008, letter John sent to his sons:
"Peter, Andy, Jim, John & Tom.
I do not wish to communicate with you at this time.
Your lack of integrity and dishonesty have been too large a part of my life. I have moved on and I would ask you to try and do the same.
If my feelings should change I will contact you."
¶ 11 Regardless of the 18-year estrangement and the fact that John had taken legal steps to delegate decisions about his property and his health in the event of his incapacity, James filed a two-count petition on November 3, 2010, seeking to be appointed guardian of his father's person and to have Commerce Bank appointed guardian of his estate. He also sought an order of protection on John's behalf against Margaret. Nearly all salient allegations in the petition are made on information and belief.
¶ 12 In count I, James alleged that John was incapable of managing either his person or his estate because of age and infirmity; did not currently have a guardian or an agent under the Illinois Power of Attorney Act (755 ILCS 45/1-1 et seq. (West 2010)); and was a widower who resided with his daughter Maureen and her husband. James did not attach the required medical report to this petition, but requested, as allowed by statute, that the court order "appropriate evaluations" of John.
¶ 13 In count II, James alleged that: (1) John was "a high risk disabled adult as defined in 750 ILCS 60/103"; (2) John is or was the majority shareholder of Lucas; (3) Margaret was the president (and possibly a stockholder/director) of Lucas; (4) because John, on account of age and infirmity, relied on Margaret for assistance with his personal and business affairs and she dominated and controlled those affairs and, in concert with Maureen, curtailed John's interactions with family and friends, Margaret stood in a fiduciary relationship with, and owed a fiduciary duty to, John.
¶ 14 Count II further alleged Margaret's breach of fiduciary duty by diverting business from Lucas to companies in which she had an ownership or financial interest and John did not, by permitting waste of John's assets, and by making decisions that were inconsistent with those John would make were he capable and not under Margaret's influence. James characterized Margaret's conduct as exploitation. He also requested an accounting of John's assets.
¶ 15 John moved to dismiss James's petition pursuant to sections 2-615 (735 ILCS 5/2-615 (West 2010)) and 2-619 (735 ILCS 5/2-619 (West 2010)). He challenged the trial court's jurisdiction to appoint a guardian because he had previously executed powers of attorney for property and health care. He asserted his lack of disability as affirmative matter under section 2-619 (735 ILCS 5/2-619 (West 2010)) and the failure of the petition to state a cause of action under section 2-615 (735 ILCS 5/2-615 (West 2010)).
¶ 16 John supported his section 2-619 motion with a medical report from Dr. Shanta Mattai in which the neurologist recounted her five-year history of treating John, her observations of his physical and emotional condition, his adaptability to his surroundings, and his compliance with medical instructions. She noted that John "had an intact mental status as determined by the mini-mental status examination [(MMSE)], " and indicated that any neurological deficit John experienced did not significantly impact his ability to make decisions about his person or estate. She opined that John was happy in his current living environment and that it should not be changed. Overall, Dr. Mattai concluded that John did not need a guardian.
¶ 17 John's own affidavit averred that he had experienced two seizures, one in 2005 and the other in early 2010. Although they had "cause[d him] to slow down, " they had not impaired his mental faculties or his abilities to drive and walk, and to care for himself. John further averred that he currently lived with Maureen and her husband, and they were available to help him if needed. He attached powers of attorney for health care and property that he had executed on September 11, 2009, naming Margaret as his agent, and Maureen as successor, and stated that his chosen agents would care for him should the need arise. John further averred that he had not seen or communicated with James in approximately 18 years, other than to send the August 2008 letter.
¶ 18 Margaret also moved to dismiss James's petition pursuant to sections 2-615 (735 ILCS 5/2-615 (West 2010)) and 2-619 (735 ILCS 5/2-619 (West 2010)). She argued dismissal was warranted under section 2-615 (735 ILCS 5/2-615 (West 2010)) because the petition concluded, without supporting facts, that John was a "high risk adult with disabilities, " and under section 2-619 (735 ILCS 5/2-619 (West 2010)) because John objected to the appointment of a guardian, and, pursuant to section 103(2) of the Domestic Violence Act, "no court proceeding may be initiated or continued on behalf of an adult with disabilities over the adult's objection, unless such proceeding is approved by his or her legal guardian, if any" (750 ILCS 60/103(2) (West 2010)). She attached John's certification objecting to the court proceeding seeking an order of protection on his behalf against Margaret and asking that the proceeding be dismissed.
¶ 19 James responded, contending he had pled sufficient facts to state a cause of action in both counts, denying that John's execution of powers of attorney deprived the court of jurisdiction to hear his guardianship petition, and arguing that count II should not be dismissed without a determination by the court that John was capable of managing his own estate.
¶ 20 John supplemented his motion to dismiss, arguing that the cases of In re Estate of Silverman, 257 Ill.App.3d 162 (1993), and Williams v. Estate of Cole, 393 Ill.App.3d 771 (2009), controlled the disposition of this case; that James's sole purpose was to gain control over John's assets, and that the allegation of infirmity was unsupported and insufficient to warrant guardianship; and attaching the medical report of Dr. Robert A. Lizer, who had also been his physician for five years. Dr. Lizer concluded that John had recovered from his falls, enjoyed a "normal" mental status, was able to safely operate a vehicle and fulfill his basic personal needs, and was "mentally capable of making his own decisions."
¶ 21 John later filed affidavits of Dr. Mattai and Dr. Lizer which mirrored the substantive information contained in each doctor's report and recited that each could competently testify to the information if necessary.
¶ 22 James, supported by an affidavit of Dr. Sanford Finkel, who had neither talked with nor examined John, challenged the factual bases for and the sufficiency of the reports and affidavits of Dr. Lizer and Dr. Mattai. Dr. Finkel also questioned the doctors' failure to provide detailed information on the nature and management of John's finances, and asserted that more thorough mental health testing of John was necessary.
¶ 23 Second, James contended his allegation that John could not manage his estate due to age or infirmity satisfied the applicable pleading requirements of the Probate Act, which only required him to plead the reasons for guardianship to the extent that he knew them.
¶ 24 James also attached affidavits from two of John's siblings and two of John's other estranged sons alleging changes in John's demeanor and relationships with family members primarily in 2005 and 2006, following his head injury.
¶ 25 On January 21, 2010, the court appointed attorney Jeremy Heiple as guardian ad litem for John. Heiple met twice with John and also met with John's five sons and with one of his brothers. He found John to be "fully oriented to person, place and time, " and noted that Dr. Mattai and Dr. Lizer had issued separate reports indicating that John "ha[d] sufficiently recovered from the 2005 matters such that he [was] competent to make all of his own decisions, both medical and otherwise." During his second meeting with John, Heiple administered the MMSE on which John scored 29 of 30 possible points, indicating he had "no cognitive impairment." A copy of the test was appended to his report.
¶ 26 Heiple also noted "significant relational dysfunction" within John's family, which had originated in 1992 with the terminations from Lucas, and Peter's decision to open a competing business. The dysfunction intensified during and after 2005 legal proceedings in which Margaret and her sister Mary had sought orders of protection against their brothers, and the family members had been advised by the court "to just stay away from each other." Heiple also included a copy of the handwritten August 2008 letter from John to his five sons.
¶ 27 John told Heiple he wanted the guardianship proceedings to be dismissed; he had no present need for a guardian and had created powers of attorney should he ever need assistance. Heiple reported that he had no information indicating that either Margaret or Maureen would be an inappropriate agent for John, and stated that John's living arrangement was appropriate, and he had no need for a nursing home or assisted living.
¶ 28 With regard to his meetings with John's estranged children, Heiple noted they had vague concerns about John's well-being based solely on conjecture. He opined that "the gravamen of their interest seemed to focus on the operation of [John's] business, A. Lucas & Sons, as well as [John's] finances."
¶ 29 On March 16, 2011, the court entered its written order dismissing both counts of James's petition with prejudice. The order recited that there had been a hearing on the motions to dismiss with counsel present and arguments heard. After rejecting John's jurisdictional challenge, the order dismissed count I, finding the claim "barred by other affirmative matter avoiding the legal effect of or defeating the claim." The court found that James had not attached any medical report or affidavits establishing disability as defined in the statute, while John had submitted medical reports and affidavits of Dr. Lizer and Dr. Mattai which complied with the statute and which asserted facts refuting John's alleged disability.
¶ 30 Count II, against Margaret, was dismissed based on the court's finding that John's objection to the entry of an order of protection precluded the continuation of proceedings under section 103(2) of the Domestic Violence Act (750 ILCS 60/103(2) (West 2010)).
¶ 31 Following the dismissal of James's petition, John and Margaret separately sought sanctions under Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). John's motion alleged that James's petition was neither well grounded in fact nor warranted by existing law, but had been filed for the improper purpose of harassing John and using discovery to gain information about Lucas to which he was not entitled. Margaret's motion recounted the family's long history of dissension and alleged that: James had not seen or spoken to John for 18 years; he was a project manager at Hanley Steel, a business he and his four brothers have operated in direct competition with Lucas; the petition lacked "the facts [or] the proper purpose to pursue the claims" advanced; the allegations in his petition were "completely without substance or merit, " and James had a conflict of interest. She claimed that James had abused the process of the court and that sanctions were warranted.
¶ 32 James responded with motions to strike each sanction motion and, alternatively, a request that the court set the matter for ...