                                  2015 IL App (1st) 140798

                                                                            FIRST DIVISION
                                                                             January 12, 2015


                                        No. 1-14-0798


                                       IN THE
                            APPELLATE COURT OF ILLINOIS
                              FIRST JUDICIAL DISTRICT


In re ESTATE OF ANGUS RODDEN, a Disabled Person               )    Appeal from the
                                                              )    Circuit Court
(Robert F. Harris, Cook County Public Guardian and Plenary )       of Cook County.
Guardian of the Estate and Person of Angus Rodden, a disabled )
person,                                                       )
                                                              )
        Petitioner-Appellee,                                  )
                                                              )
v.                                                            )    No. 11 P 6818
                                                              )
Audrey Newton,                                                )    Honorable
                                                              )    Kathleen McGury,
        Respondent-Appellant).                                )    Judge Presiding.


       PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.
       Justices Cunningham and Connors concurred in the judgment and opinion.

                                          OPINION

¶1     In his waning years, Angus Rodden, age 93, granted his friend and caretaker, Audrey

Newton, a power of attorney over his health care and personal estate. Robert Harris, the public

guardian of Cook County, apparently believing Newton was not being cared for in an optimal

manner, filed a petition for guardianship over Rodden in the circuit court of Cook County. The

court granted that petition. Newton appeared at the hearing on the guardianship and resigned as

Rodden’s agent under the power of attorney. These resignations were in writing and filed with
No. 1-14-0798


the court below.    After acquiring guardianship, the public guardian investigated Rodden’s

situation and discovered that Newton had written checks from Rodden’s account to herself

totaling $17,000.

¶2     The public guardian then filed a two-count pleading entitled “Petition for Accounting

under Power of Attorney for Property.” The petition’s prayer for relief asks, among other things,

that the court order Newton to file an accounting within 21 days, hold a hearing on any improper

disbursements, and enter a judgment against Newton for any money improperly taken. Copies of

the checks in question were attached to the petition.

¶3     The petition is largely based on several interrelated provisions of the Illinois Power of

Attorney Act. 755 ILCS 45/1-1 et seq. (West 2012). The first requires agents to maintain

records of any disbursements they make on behalf of the principal and to provide copies of those

records upon request to the principal’s court-appointed guardian. 755 ILCS 45/2-7(c) (West

2012). The same law also provides that the public guardian may “petition the court for an order”

requiring the agent to produce her record of receipts and disbursements. (Emphasis added.) 755

ILCS 45/2-7(d) (West 2012). It specifies that if the agent fails to do so and the court finds that

the agent’s failure to provide her record in a timely manner to the public guardian was without

good cause, the court may assess costs and attorney fees against the agent, and “order such other

relief as is appropriate.” Id. Finally, it provides that an agent is liable to the principal for the

amount required to make the principal whole. 755 ILCS 45/2-7(f) (West 2012).

¶4     On April 25, 2012, the trial court entered an order granting the public guardian leave to

file the petition and to serve it upon Newton through a special process server, and setting the case

for May 18 for “Audrey Newton to appear and for status.” On May 14, 2012, a special process

server personally served Newton with a copy of the April 25 order and the petition, but not with



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No. 1-14-0798


a summons. Newton does not dispute the validity of this service. After Newton did not appear

at the May 18, 2012, hearing, the court entered an order directing her to file an accounting by

June 8 and to appear on June 14. The same day, the public guardian sent Newton a letter by

regular and certified mail, enclosing a copy of that order. The record contains a returned

certified mail “green card” for the letter indicating it was delivered on May 19 but which bears

no recipient’s signature. On June 14, 2012, after Newton twice failed to appear in court to

respond to the petition, the court entered an order finding that Newton had breached her fiduciary

duty to Rodden and imposed a judgment against her for $17,000.

¶5     Rodden died two weeks later, on June 30, 2012. On October 15, 2013, the trial court

closed the disabled person’s estate, after the public guardian had accounted for his work on the

matter and distributed Rodden’s assets to various heirs.

¶6     On November 19, 2013, Newton, through counsel, filed a motion to vacate the $17,000

judgment, alleging that it was void for lack of jurisdiction. Newton alleged that the public

guardian could only proceed by issuing a citation under section 16-1 of the Illinois Probate Act

of 1975 (755 ILCS 5/16-1 (West 2012)) and a summons under section 2-201 of the Illinois Code

of Civil Procedure (735 ILCS 5/2-201 (West 2012)). Newton admitted that she was physically

present at the initial guardianship hearing but noted that she had never filed an appearance in the

case. The public guardian responded, essentially arguing that: (1) the petition was a valid

method of proceeding to collect money the agent owed the ward; and (2) Newton subjected

herself to the jurisdiction of the court by participating in the original guardianship hearing.

Newton did not testify at the hearing on the motion to vacate, but her counsel indicated that

Newton did not respond to the court orders or the petition because of “contempt” and “bad

feelings” she held toward the public guardian’s office. After briefing and argument, the trial



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court denied the motion to vacate. The court stated that the petition “does comply with all of the

requirements of due process. It notifies the Respondent. It notifies Ms. Newton. It gives her an

opportunity to appear and defense. It advises her of the consequents of not appearing.” This

appeal followed.

¶7     We begin with several basic principles which our supreme court recently reaffirmed. For

its judgment to be valid, the trial court must have jurisdiction over the subject matter and

jurisdiction over the parties. BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 17.

A judgment entered by a court without jurisdiction is void and may be challenged at any time,

either directly or collaterally. Id. We review de novo whether the trial court obtained personal

jurisdiction. Id. Personal jurisdiction is established either by service of process in accordance

with statutory requirements or if a party voluntarily submits to the court’s jurisdiction. Id. ¶ 18.

Here, Newton was personally served with the petition, and she does not contest the validity of

that service. Accordingly, the trial court had personal jurisdiction over her.

¶8     Newton, however, also challenges the manner in which the petition was labeled,

essentially contending that the public guardian sought the wrong remedy, and she leapfrogs that

into an argument that the trial court had no jurisdiction. She correctly notes that the public

guardian could have accomplished a similar result by framing his pleading as a citation to

recover assets and serving it upon Newton along with a summons. However, the Power of

Attorney Act specifically states that a guardian may proceed instead by “petition,” and the

context of the relevant section makes it clear that the petition is not a new and independent

proceeding requiring a new case number and judicial assignment, but rather is in the nature of a

third-party counterclaim brought under the aegis of the existing guardianship case. 755 ILCS

45/2-7(d) (West 2012). Section 2-201 of the Illinois Code of Civil Procedure also specifies that



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No. 1-14-0798


actions are commenced by “complaint,” unless otherwise expressly provided by statute. 735

ILCS 5/2-201 (West 2012). Therefore, the “petition” mechanism used by the public guardian is

statutorily recognized; the remedies were not as limited as Newton contends. More importantly,

it is well established that “when analyzing a party’s request for relief, courts should look to what

the pleading contains, not what it is called.” In re Haley D., 2011 IL 110886, ¶ 67. A plain

reading of the petition reveals that it is the substantive equivalent of a citation to recover assets.

Similarly, the court order accompanying the petition was the functional equivalent of a

summons. It commanded Newton to appear and account before the court on a specified date,

time and place.

¶9     Due process requires that before a court deprives someone of property, such as by

entering a money judgment, the party is entitled to notice and an opportunity for a hearing

appropriate to the nature of the case. Passalino v. City of Zion, 237 Ill. 2d 118, 124 (2009). The

various notices issued here more than comport with basic due process requirements.

¶ 10   The record contains no transcript of the original guardianship hearing at which Newton

appeared and resigned her agency under the power of attorney. Because we resolve the issues

presented on the grounds set forth above, we need not address whether Newton’s participation at

that hearing and any statements she made orally subjected her to the jurisdiction of the court.

¶ 11   For these reasons, we find that the trial court correctly denied the motion to vacate the

judgment.

¶ 12   Affirmed.




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