                                         2017 IL App (3d) 150834

                               Opinion filed February 23, 2017
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2017

     In re ESTATE OF MARION YOUNG TAIT,        )  Appeal from the Circuit Court
     a Disabled Person                         )  of the 12th Judicial Circuit,
                                               )  Will County, Illinois.
     (Susan M. Zoleske, Former Guardian of the )
     Person and Estate,                        )  Appeal No. 3-15-0834
                                               )  Circuit No. 06-P-719
            Petitioner-Appellant,              )
                                               )  The Honorable
            v.                                 )  J. Jeffrey Allen,
                                               )  Judge, presiding.
     The Estate of Marion Young Tait and First )
     Midwest Bank,                             )
                                               )
            Respondents-Appellees).            )
     _____________________________________________________________________________

            JUSTICE McDADE delivered the judgment of the court, with opinion.
            Justices Carter and O’Brien concurred in the judgment and opinion.

     _____________________________________________________________________________

                                                OPINION


¶1          Petitioner Susann M. Zoleske was appointed guardian of the estate of her mother, Marion

     Young Tait. The trial court removed petitioner as guardian. Petitioner appeals, arguing that the

     trial court erred when it removed her as guardian because it did not comply with section 23-3 of

     the Probate Act of 1975 (Probate Act) (755 ILCS 5/23-3 (West 2014)). We reverse and remand.

¶2                                                FACTS
¶3          In 2006, petitioner Susann M. Zoleske was appointed guardian of the person and estate of

     her mother, Marion Young Tait, a 95-year-old woman who had been adjudicated a disabled

     adult. The estate was valued at approximately $138,000. The trial court waived the requirement

     of surety for bond, and the court-appointed guardian ad litem, Colleen Mary Wengler, raised no

     objection to the appointment of petitioner as guardian. Petitioner filed her first accounting report,

     which the trial court approved, in October 2009. At the time, the trial court waived the filing of

     any subsequent accountings.

¶4          Four years later, in response to a form request from the court for status, petitioner advised

     the court that Marion was still living and also filed a pro se petition requesting the transfer of

     Marion’s real estate to Marion’s daughter, Barbara Tait. Barbara was the primary caregiver and

     had lived in Marion’s residence for 35 years. Petitioner also filed a pro se accounting report of

     Marion’s estate. Wengler was again appointed guardian ad litem for Marion to review the

     petition and accounting report. The trial court ordered petitioner to provide Wengler with a copy

     of the accounting report.

¶5          At a hearing in December 2013, the accounting report was not ruled on, and the matter

     was continued to a later date. In January 2014, the court noted that petitioner had failed to

     comply with the trial court’s order to provide Wengler with the accounting report. Also, the court

     noted that petitioner was required to file an annual report on Marion. The trial court ordered

     petitioner to provide the annual report and the accounting report at the next status hearing.

¶6          At a hearing in April 2014, petitioner presented Wengler with a copy of the accounting

     report but failed to file an annual report. The matter was continued to the next status hearing.

     Before the hearing, Wengler stated her objections to the accounting report but neither presented

     nor filed her objections in writing.


                                                       2
¶7            At a hearing in June 2014, petitioner filed an annual report, which the trial court

     approved, and a status hearing was set to review the accounting report. Also in June, counsel

     appeared for the first time on behalf of petitioner and requested additional time to file an

     amended accounting to respond to Wengler’s objections. The matter was set for another status

     hearing.

¶8            At a hearing in November 2014, counsel filed the first amended accounting report, which

     the trial court did not approve. A second amended accounting report was filed in July 2015, and

     the court ordered petitioner to post a surety bond within 30 days. Petitioner never posted bond.

¶9            A third amended accounting report was filed in September 2015. On September 25, 2015,

     Wengler expressed her issues regarding the original and amended accounting reports and

     requested a “brief pretrial conference” to discuss her concerns. The following colloquy took

     place:

                             “THE COURT: All right. What is before us today?

                             [GUARDIAN AD LITEM]: We are before the Court today,

                     Judge, for continued consideration of approval of the guardian’s

                     third amended accounting covering the periods of 2010 through

                     2015.

                             The third amended accounting has been filed with the

                     Court. I have had an opportunity to review it. And I have had an

                     opportunity to speak also with Miss Dollinger.

                             I do have concerns with regard to the accounting that has

                     been provided as well as the second and third amended

                     accountings that have been provided. So I am not in a position at


                                                        3
               this point to recommend in favor of the approval of those

               accountings.

                         There are a few issues. And I think perhaps the best way at

               this point to proceed would be to conduct a brief pretrial

               conference with [Y]our Honor so that you can be made aware of

               what the issues are and give me some further direction in this

               matter.

                         It is not a large estate. So I don’t think the filing of formal

               objections and hearing on those objections would be appropriate.

               But I do just want a few minutes of your time if you are inclined to

               allow that.

                         THE COURT: There must be some sort of history here.

                         [GUARDIAN AD LITEM]: Yes.

                         THE COURT: It does not appear that I am going to be

               going long this morning if you are available to wait around.

                         [GUARDIAN AD LITEM]: Yes.

                         THE COURT: We will try and do it this morning.

                         [GUARDIAN AD LITEM]: Thank you.

                         [COUNSEL FOR THE ESTATE]: Thank you.” (Emphasis added.)

The requested pretrial conference was conducted that day. Petitioner claimed that she was not

allowed to participate in the pretrial conference; however, her attorney was present on her behalf.

At the end of the conference, the trial court, sua sponte, ordered the removal of petitioner as

guardian of Marion’s estate.

                                                    4
¶ 10          Petitioner filed a motion to vacate the trial court’s ruling, and the trial court, after a

       hearing, denied the motion. Petitioner appealed.

¶ 11                                               ANALYSIS

¶ 12                                                I. Waiver

¶ 13          Petitioner challenges the trial court’s order removing her as guardian of her mother’s

       estate. Respondents claim petitioner failed to preserve this issue for appellate review because

       petitioner did not object to the “pretrial settlement conference” at which the trial court removed

       petitioner as guardian.

¶ 14          It is well-established that issues not raised in the trial court are deemed waived and may

       not be raised for the first time on appeal. Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d

       486, 500 (1985). Here, petitioner raised the issue of her removal as guardian in the trial court

       and, thus, preserved the issue for appeal. The issue arose when the trial court removed petitioner

       as guardian of her mother’s estate at the end of the pretrial conference. Thereafter, petitioner

       filed a motion to vacate the judgment and requested a hearing on the motion. In the motion to

       vacate, petitioner argued that she was removed without citation to show reasons for her removal

       or an opportunity to respond to the court’s motion for removal. At the hearing on the motion to

       vacate, petitioner’s attorney addressed the removal issues:

                                 “[PETITIONER’S ATTORNEY]: Judge, this is our

                      motion. I don’t know if you have had a chance to read it. I could

                      give you a copy. It is a short motion drafted by my partner Mr.

                      Jarot to vacate the order that was entered on September 25th

                      removing my client as the guardian.




                                                          5
                       Mr. Jarot has laid out pretty clearly that the petition for rule

               to show cause needs to be issued against the person seeking to be

               removed. And that didn’t happen here.

                       Apparently something happened at a pretrial conference.

               She was removed. But Mr. Jarot has laid it out. She has filed three

               accountings. No objections have been filed.

                       And based on the statute, the Court can issue its own rule

               or [guardian ad litem] can issue a rule. Any interested party can

               issue a rule. But she simply can’t be removed without rule being

               issued and a hearing being held. That is the basis of the motion.”

               (Emphasis added.)

The guardian ad litem agreed with petitioner’s attorney’s statement on the removal procedures,

stating, “And Mr. Hoster is correct in terms of the procedure for removal of guardian for cause.”

The dialogue continued as the trial court posed a question to petitioner’s attorney regarding its

ability to remove petitioner as guardian to which petitioner’s attorney responded:

                       “[PETITIONER’S ATTORNEY]: I disagree that you can

               do it in chambers. I believe like any other judge in a civil case, the

               court on its own motion can issue a petition for rule to show cause.

                       When it issues, there is a date set for a hearing. And the

               burden shifts to [petitioner] to show why she shouldn’t be

               removed. We have an evidentiary hearing in front of you.

                       If we fail to show why she shouldn’t be removed, you

               remove her. You make specific findings of fact. And there are ten


                                                  6
                      things in the probate act that say reasons why you can remove her.

                      You have to put that on the record.

                              You can do that, Judge. But I just don’t believe it can be

                      done the way it was done. That is our position according to the

                      statute.”

       At the end of the hearing, petitioner’s attorney made an effort to preserve the court’s ruling on

       record. The following colloquy took place:

                              “[PETITIONER’S ATTORNEY]: Judge, the Court is

                      finding that there is no need to rule on the issue under the statute;

                      is that correct, just so the record is clear?

                              THE COURT: I am finding on my own motion, I am doing

                      this for the reasons set forth in [755 ILCS] 5/23-2.

                              [PETITIONER’S ATTORNEY]: Thank you, sir. You have

                      given me a record. I appreciate that.”

       We find it clear that petitioner raised the issue of the procedural impropriety of her removal

       before the trial court and preserved the issue for appellate review.

¶ 15          Respondents classify the removal hearing as a “pretrial settlement conference” at which

       petitioner had an opportunity to object to her removal, but this is not the case. In fact, the

       guardian ad litem requested a “brief pretrial conference” in order to discuss the concerns she had

       in regard to the accounting, not a pretrial settlement conference where petitioner had an

       opportunity to respond to the trial court’s motion for removal and show cause why she should

       not be removed as guardian. The issue of petitioner’s removal did not arise before the trial court

       removed petitioner as guardian at the end of the pretrial conference. Thereafter, petitioner

                                                          7
       preserved the issue for review when she filed and argued her motion to vacate the trial court’s

       judgment.

¶ 16                                       II. Statutory Compliance

¶ 17          Petitioner argues that the trial court failed to comply with section 23-3 of the Probate Act

       (755 ILCS 5/23-3 (West 2014)) because she was not issued a citation giving any reasons for

       removal and she was not given an opportunity for a hearing to show cause why she should not be

       removed as guardian. Respondents argue that the trial court complied with section 23-3 because

       petitioner was notified of the issues with the accounting reports and agreed to a pretrial

       conference where she had an opportunity to discuss any issues.

¶ 18          Under section 23-3, the trial court shall issue a citation to the representative it wishes to

       remove as an estate representative. Id. The citation directs the representative to show cause why

       he or she should not be removed as representative. Id. The representative may file a responsive

       pleading to the reasons for removal. Id. After the court conducts a hearing, it can make a

       determination on the representative’s removal pursuant to the causes listed in section 23-2 of the

       Probate Act. 755 ILCS 5/23-2, 23-3 (West 2014).

¶ 19          Although strict compliance with statutes is normally necessary, the requirements of

       section 23-3 are met when the trial court’s procedures were “substantially sufficient to insure

       compliance with the intent and purpose of the Probate Act.” In re Estate of Abbott, 38 Ill. App.

       3d 141, 144-45 (1976).

¶ 20          Illinois courts recognize that evidence of substantial compliance with section 23-3 is

       shown when a party was “awarded a fair hearing” and was not “prejudiced by formal

       deficiencies in procedure.” Abbott, 38 Ill. App. 3d at 145 (“respondent was therefore given

       reasonable notice of the hearing, [and] was given a fair opportunity to defend”); see In re Estate


                                                         8
       of Austwick, 275 Ill. App. 3d 665, 671 (1995) (substantial compliance found when public

       guardian was notified and both parties were allowed to present evidence in support of their

       position at a hearing); see In re Estate of Denaro, 112 Ill. App. 3d 872, 878 (1983) (substantial

       compliance found when executor had “notice of all proceedings in the case and was afforded

       numerous opportunities for a hearing”).

¶ 21          In re Estate of Rumoro, 90 Ill. App. 3d 383 (1980), is similar to the case at hand. In

       Rumoro, plaintiff challenged the trial court’s ruling to remove her as conservator under section

       23-3 of the Probate Act. Id. at 386. The First District determined that the trial court did not

       substantially comply with the procedures stated in section 23-3. Id. at 387. The court reasoned

       that while a hearing on the objections to the accounting was held, there was no evidence that

       plaintiff was notified that her conservatorship was at issue and that plaintiff had an opportunity

       to be heard during the hearing. Id.

¶ 22           Here, petitioner was not properly notified of the alleged causes for her removal or that

       removal was under consideration. Respondents argue that the guardian ad litem’s concerns with

       the accounting over the course of two years put petitioner on notice that petitioner could be

       removed as guardian. The purpose of a citation “is to notify the respondent about the alleged

       causes for removal.” (Emphasis added.) Austwick, 275 Ill. App. 3d at 671. In previous

       proceedings, the guardian ad litem expressed concerns with petitioner’s accounting reports.

       During the colloquy between the guardian ad litem and the trial court, the guardian ad litem

       requested a pretrial conference to discuss “concerns with regard to the accounting.” Similar to

       Rumoro, the conference was to address the issues with the accounting reports, not the removal of

       petitioner as guardian. See Rumoro, 90 Ill. App. 3d at 387 (noting that a hearing on the

       accounting objections was held but no evidence that plaintiff was notified that plaintiff was

       subject to removal as conservator under section 23-3 of the Probate Act). Moreover, there is no
                                                       9
       evidence in the record that petitioner in this case was notified of any causes for her removal prior

       to the pretrial conference. Therefore, we hold petitioner was not properly notified of the

       possibility of her removal or any causes for her removal at the time of the pretrial conference.

¶ 23          Furthermore, we cannot conclude that petitioner was given an opportunity to be heard on

       the issue of her removal as guardian. At the end of the pretrial conference regarding the

       accounting reports, the trial court removed petitioner as guardian. No record was made of the

       conference, and there is no evidence in the balance of the record that shows whether petitioner

       was given an opportunity to show cause why she should not be removed as guardian. In fact,

       petitioner argued that she was not permitted to participate in the pretrial conference. Without

       evidence to the contrary, we find petitioner was not given an opportunity to be heard on the issue

       of her guardianship either directly or through counsel.

¶ 24          Because there is no evidence that petitioner received notice and had an opportunity to be

       heard as statutorily and constitutionally required, petitioner was prejudiced by formal

       deficiencies in procedure. McGrath v. City of Kankakee, 2016 IL App (3d) 140523, ¶ 14 (“[d]ue

       process under the Illinois and federal constitutions requires adequate notice and a meaningful

       opportunity to be heard”); Abbott, 38 Ill. App. 3d at 145 (substantial compliance with section 23-

       3 is shown when a party was “awarded a fair hearing”). Therefore, we find the trial court did not

       sufficiently comply with section 23-3 of the Probate Act. As a result, this case is remanded for a

       removal hearing in accordance with the statute to determine whether petitioner should be

       removed as guardian.

¶ 25          While the matter is remanded on procedural grounds, we also note the record discloses

       further evidence of prejudice resulting from a failure to hold an evidentiary hearing. The record

       is devoid of evidence that petitioner mismanaged Marion Tait’s estate or caused harm to the

       estate. The only information in the record pertaining to any discrepancies in the accounting
                                                       10
       reports are the footnotes found in the second and third amended accounting reports, showing a

       difference between the amount reimbursed from the estate and the total expenses incurred—a

       difference that appears to have benefitted the estate. Moreover, the guardian ad litem failed to

       file objections to or concerns with the accounting reports in writing before petitioner was

       removed as guardian. In re Estate of Moore, 189 Ill. App. 3d 920, 923 (1989) (“[i]t is the burden

       of the representative to prove that the items entered on the account are just and proper if

       objections to the report are filed” (emphasis added) (citing In re Estate of Roth, 24 Ill. App. 3d

       412, 416 (1974))). Petitioner was given no opportunity to present arguments that she had not

       harmed or mismanaged the estate.

¶ 26          Further, the trial court and the guardian ad litem emphasized petitioner’s failure to post a

       surety bond as a major or primary justification for removal. In 2006, petitioner filed a petition,

       requesting the court to appoint her as guardian of her mother’s estate. The trial court appointed

       petitioner as guardian and waived the requirement to post a surety bond. See 755 ILCS 5/12-2(a)

       (West 2004) (“The court may waive the filing of a bond of a representative of the person of a

       ward or of a standby guardian of a minor or disabled person.”). In 2015, petitioner was ordered

       to post a surety bond but was unable to do so. Petitioner argues that her inability to post a surety

       bond was not willful but resulted from the unresolved status of the accounting reports. Petitioner

       claims that in order to post a surety bond, the trial court must approve the accounting. Had an

       evidentiary hearing taken place, petitioner would have had an opportunity to present her

       argument and the trial court could have rule on petitioner’s removal after consideration of her

       reasons. On remand, petitioner will have an opportunity to show cause why she should not be

       removed for failure to post a surety bond or for any other reason.

¶ 27                                             III. Court Cost


                                                        11
¶ 28          Respondents request that this court assess the costs associated with this appeal against

       petitioner if the results of a second removal proceeding lead to the removal of petitioner as

       guardian. We will not assess the costs associated with this appeal against petitioner because the

       record reveals that petitioner was improperly removed as guardian and that she filed a proper

       appeal as a result. Section 5-120 of the Code of Civil Procedure (735 ILCS 5/5-120 (West 2014))

       states, in relevant part, “If any person takes an appeal to review the judgment of any other court,

       and the judgment is affirmed or the appeal is dismissed, the appellee shall recover costs ***.”

       Due to the petitioner’s improper removal, we reverse and remand this case for further

       proceedings. Therefore, respondents are not entitled to recover costs. We note that, once the trial

       court conducts a removal proceeding on remand, it has the discretion to assess the costs of that

       removal proceeding against petitioner if it rules petitioner should be removed as guardian. See

       755 ILCS 5/23-3(d) (West 2014) (“court may assess the costs of the proceeding against a

       representative who is removed for any cause listed in Section 23-2”).

¶ 29                                            CONCLUSION

¶ 30          The judgment of the circuit court of Will County is reversed and remanded for further

       proceedings.

¶ 31          Reversed and remanded.




                                                       12
