                             ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                           In re Estate of Hanley, 2013 IL App (3d) 110264




Appellate Court              In Re ESTATE OF JOHN P. HANLEY, an Alleged Disabled Person,
Caption                      Respondent-Appellee, (James Hanley, Petitioner-Appellant and Cross-
                             Appellee, v. Margaret Hanley, Respondent-Appellee and Cross-
                             Appellant).



District & No.               Third District
                             Docket Nos. 3-11-0264, 3-11-0932 cons.


Filed                        September 6, 2013


Held                         In an action seeking a guardianship for petitioner’s father and an order of
(Note: This syllabus         protection against petitioner’s sister, the trial court properly dismissed the
constitutes no part of       petitions, since petitioner did not present any facts rebutting the
the opinion of the court     affirmative matter respondent presented establishing that he was capable
but has been prepared        of managing his affairs, even though he was a high-risk adult with
by the Reporter of           disabilities; furthermore, he did not have a guardian, he had never been
Decisions for the            adjudicated an incompetent adult, and pursuant to section 103(2) of the
convenience of the           Domestic Violence Act, no proceedings on behalf of such an adult could
reader.)
                             proceed without the approval of his guardian.


Decision Under               Appeal from the Circuit Court of Peoria County, No. 10-P-493; the Hon.
Review                       Michael E. Brandt, Judge, presiding.



Judgment                     Affirmed in part, corrected in part, and sanctions on appeal denied.
Counsel on                 William R. Kohlhase and Mark D. Walton (argued), both of Miller, Hall
Appeal                     & 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.




                                              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


                                                  -2-
       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

                                                 -3-
       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


                                                 -4-
       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

                                                 -5-
       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 discovery and an evidentiary hearing.
¶ 33       At the initial hearing on the motions for sanctions on July 11, 2011, the court found that
       Margaret and John had each presented a prima facie case for sanctions for James’s failure
       to make a reasonable inquiry concerning his petition for a guardian and for an order of
       protection. The court concluded that additional discovery was not appropriate but scheduled

                                                -6-
       a hearing at which the parties would be permitted to present supplemental evidence and
       arguments regarding sanctions.
¶ 34        That hearing convened on September 30, 2011. The court noted that since it had
       previously found John and Margaret met the threshold requirements for sanctions, James
       must be given the opportunity to rebut their allegations and show that sanctions were not
       appropriate. Claiming that Margaret had only presented “a pile of hearsay,” James objected
       “to the burden being shifted to [him] without any evidence being presented.”
¶ 35        The pertinent facts elicited from testimony at this hearing showed that John and James
       had been estranged for 18 years, during which time they had never spoken. James had not
       asked John if he wanted or needed a guardian, had not secured a medical evaluation or
       medical information about John prior to filing his petition, had not made any effort to
       ascertain whether John’s failure to acknowledge family members or his claimed “isolation”
       from them was volitional or imposed by others, and had not tried to determine whether John
       was dissatisfied with Margaret’s handling of Lucas or wanted/needed an order of protection.
       There was undisputed evidence that John had, in writing, severed ties with his sons and
       disputed testimony that after receiving the August 2008 letter James disavowed any
       relationship with his father.1 It was also undisputed that Lucas and Hanley Steel, which
       employed James as a project manager, were direct business competitors. James’s
       “perception” of John’s disability was anecdotal, based on his own sporadic sightings or those
       of others–some of whom were as estranged from John as he. James’s expert offered no
       independent opinion about John’s condition based on his own examination of John but only
       criticized the evidence considered by and opinions tendered by John’s personal treating
       physicians.
¶ 36        On October 4, 2011, in a written order, John’s motion for sanctions was denied, with the
       court finding that, although James presented a “very, very weak case” for the appointment
       of a guardian, his conduct with regard to count I did not warrant the imposition of sanctions.
¶ 37        Sanctions were, however, awarded to Margaret. The order noted that section 103(2) of
       the Domestic Violence Act (750 ILCS 60/103(2) (West 2010)) precluded the initiation or
       continuation of proceedings for an order of protection on behalf of an adult with disabilities
       over that adult’s objections. The court found that James made no attempt to determine
       whether John wanted him to initiate the domestic violence proceedings and that even after
       John filed the affidavit objecting to the proceedings, James persisted. The court further
       concluded that James had not presented “even an iota of evidence suggesting any component
       of abuse, neglect, harassment, exploitation, or interference with personal liberty.” A hearing
       was scheduled for determination of fees and costs.
¶ 38        Margaret’s initial petition for attorney fees and costs sought a total of $42,596.24 for
       work done through September 30, 2011. A supplemental petition for $4,741.42 covered work
       after October l, 2011. James objected to any fees incurred for work on the appeal of the


               1
               James’s brother, Tom Hanley, testified that, after receiving the August 2008 letter from
       John, James stated that he did not care if he ever spoke to John again and as far as he (James) was
       concerned, he did not have a father. James has denied making that statement.

                                                  -7-
       dismissal of James’s petition, on issues on behalf of Lucas, on Peter’s conduct, and on count
       I of James’s petition. In support of her fee petition, Margaret testified that, although Lucas
       was initially paying her fees, she was obligated to reimburse the company. James’s effort to
       call Margaret’s attorney as a witness was denied by the trial court.
¶ 39        By order of December 15, 2011, after reducing her $42,596.24 fee petition by $12,951.41
       in fees and costs relating to the pending appeal or not reasonably related to the instant
       litigation, the trial court awarded Margaret $29,644.83.
¶ 40        Margaret has also sought sanctions in this court pursuant to Illinois Supreme Court Rule
       375(b) (eff. Feb. 1, 1994), alleging that James’s appeal is frivolous because his “underlying
       case is baseless, is in direct contravention of the applicable statute, and has never been
       supported with ‘even an iota of evidence.’ It is equally frivolous here on appeal.”
¶ 41        James responds that Margaret has made no allegations specific to the appeal and denies
       that the court found count II frivolous but rather granted sanctions because James prosecuted
       it over John’s objection. James contends a principled argument has been advanced on appeal
       for a favorable interpretation of section 103(2) of the Domestic Violence Act (750 ILCS
       60/103(2) (West 2010)). Therefore, he asserts that the appeal is not frivolous and sanctions
       are not warranted.

¶ 42                                        ANALYSIS
¶ 43       Before proceeding with our analysis of the substantive issues, we note Margaret’s
       challenge to this court’s jurisdiction because the trial court had not ruled on subsequently
       filed motions for sanctions prior to the filing of the notice of appeal on April 13, 2011.
       Pursuant to Illinois Supreme Court Rule 303(a)(2) (eff. June 4, 2008), when the court renders
       a decision on a timely filed postjudgment motion, such as a motion for sanctions, a premature
       notice of appeal takes effect when the court enters the order disposing of the posttrial matter.
       In the instant case, the sanctions motion was granted on October 4, 2011, and the award was
       entered on December 15, 2011, at which time the notice of appeal became effective. Thus,
       this court has proper jurisdiction.

¶ 44                         I. Dismissal of Petition for Guardianship
¶ 45       James has appealed from the dismissal with prejudice of both counts of his petition
       pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)).2
       Section 2-619 permits involuntary dismissal of an action where “the claim asserted against
       [the] defendant is barred by *** [an] affirmative matter avoiding the legal effect of or
       defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2010). An “affirmative matter” is
       something in the nature of a defense that completely negates the cause of action or refutes
       crucial conclusions of law. Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003).


              2
                James argues his petition stated a claim under section 2-615 (735 ILCS 5/2-615 (West
       2010)). The dismissals were pursuant to section 2-619 (735 ILCS 5/2-619 (West 2010)). We affirm
       on that basis and do not reach the section 2-615 (735 ILCS 5/2-615 (West 2010)) challenges.

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       Our review of an order of dismissal is de novo. Goldberg v. Michael, 328 Ill. App. 3d 593,
       597 (2002).

¶ 46                           A. Dismissal of Count I–Section 2-619
¶ 47       In its order of dismissal, the trial court found count I of James’s petition barred under
       section 2-619 (735 ILCS 5/2-619(a)(9) (West 2010))3 because the sworn, statutorily
       compliant affidavits of Dr. Mattai and Dr. Lizer established John’s lack of disability on the
       basis of current assessments. It also found that these reports were not successfully countered
       by the affidavit of James’s medical expert, Dr. Finkel, nor those of four of John’s relatives
       because they were “remote and [did] not establish a suggestion of current disability as
       defined by the statute.” The court concluded John had successfully proven the existence of
       affirmative matter defeating the claim. For the reasons that follow, we agree.
¶ 48       In his petition, James sought guardianship pursuant to procedures set out in the Probate
       Act of 1975 (755 ILCS 5/1-1 et seq. (West 2010)). Section 11a-3(a) provides in pertinent
       part:
           “Upon the filing of a petition by a reputable person ***, the court may adjudge a person
           to be a disabled person, but only if it has been demonstrated by clear and convincing
           evidence that the person is a disabled person as defined in Section 11a-2.” 755 ILCS
           5/11a-3(a) (West 2010).
       Section 11a-2 defines a “disabled person,” as:
           “[A] person 18 years of age or older who *** because of mental deterioration or physical
           incapacity is not fully able to manage his person or estate ***.” 755 ILCS 5/11a-2 (West
           2010).
¶ 49       The record in the instant case reveals a plethora of evidence supporting the trial court’s
       dismissal of James’s petition for guardianship. Dr. Mattai and Dr. Lizer both submitted
       affidavits opining that John was capable of managing his person and estate without the
       assistance of a guardian. Dr. Mattai expressly noted that John “had an intact mental status
       as determined by the MMSE.” While James did not attach a section 11a-9(a) (755 ILCS
       5/11a-9(a) (West 2010))4 affidavit to his petition for guardianship, both the affidavits of Dr.


               3
                Section 2-619 permits involuntary dismissal of an action where “the claim asserted against
       [the] defendant is barred by [an] affirmative matter avoiding the legal effect of or defeating the
       claim.” 735 ILCS 5/2-619(a)(9) (West 2010).
               4
                   Section 11a-9(a) provides:
                          “The petition for adjudication of disability and for appointment of a guardian
                          should be accompanied by a report which contains (1) a description of the nature
                          and type of the respondent’s disability and an assessment of how the disability
                          impacts on the ability of the respondent to make decisions or to function
                          independently; (2) an analysis and results of evaluations of the respondent’s mental
                          and physical condition and, where appropriate, educational condition, adaptive
                          behavior and social skills, which have been performed within 3 months of the date

                                                      -9-
       Mattai and Dr. Lizer contain discussion of all relevant section 11a-9(a) factors.
¶ 50        We reject James’s claim that the lack of medical records or other documents (except the
       curriculum vitae of each) attached to the affidavits acts to invalidate them. Affidavits
       submitted in conjunction with a section 2-619 motion are governed by Illinois Supreme
       Court Rule 191(a) (eff. July 1, 2002). Rule 191(a) provides, in pertinent part:
            “Affidavits *** shall be made on the personal knowledge of the affiants; shall set forth
            with particularity the facts upon which the claim, counterclaim, or defense is based; shall
            have attached thereto sworn or certified copies of all documents upon which the affiant
            relies; shall not consist of conclusions but of facts admissible in evidence; and shall
            affirmatively show that the affiant, if sworn as a witness, can testify competently
            thereto.” Ill. S. Ct. R. 191(a) (eff. July 1, 2002).
¶ 51        We acknowledge that Rule 191(a) requires the attachment of “sworn or certified copies
       of all papers upon which the affiant relies.” With the sole exception of the MMSE, however,
       it appears that both doctors are relying, not on specific tests or documents but on their
       treatment of and routine interaction with John over a period of five years, observing him
       while assisting his recovery from the effects of two seizures. Their assessments of his
       abilities are based on personal observation of his efforts and his skills in coping with his
       seizures, and the extent to which he has or has not overcome any deficits resulting from his
       falls or the natural processes of aging. Such personal observation and knowledge is an
       expressly sufficient foundation for an affidavit. Moreover, we emphasize that the failure to
       attach documents (such as the MMSE itself) to an affidavit is a technical violation of the rule
       which should be disregarded when it appears that the affiant would be competent to testify
       at trial. Andrews v. Northwestern Memorial Hospital, 184 Ill. App. 3d 486, 492 (1989).
¶ 52        Dr. Mattai and Dr. Lizer each averred that he or she was competent to testify at trial.
       Moreover, their curricula vitae establish that they are medical professionals licensed in the
       State of Illinois and with significant experience in their areas of practice. The affidavits assert
       actual doctor/patient relationships with John since 2005 (five years) with opportunities to
       observe, assess, and monitor his condition during all of the relevant times. Moreover, their
       evaluations are current; prior to executing their affidavits, John’s last appointment with Dr.
       Mattai was November 30, 2010, and with Dr. Lizer was December 6, 2010. They are clearly
       competent to testify if called upon to do so. We find, as did the trial court, that the affidavits
       of Dr. Mattai and Dr. Lizer complied with Illinois Supreme Court Rule 191(a) (eff. July 1,
       2002).



                       of the filing of the petition; (3) an opinion as to whether guardianship is needed, the
                       type and scope of the guardianship needed, and the reasons therefor; (4) a
                       recommendation as to the most suitable living arrangement and, where appropriate,
                       treatment or habilitation plan for the respondent and the reasons therefor; (5) the
                       signatures of all persons who performed the evaluations upon which the report is
                       based, one of whom shall be a licensed physician and a statement of the
                       certification, license, or other credentials that qualify the evaluators who prepared
                       the report.” 755 ILCS 5/11a-9(a) (West 2010).

                                                   -10-
¶ 53        The record also reveals that Jeremy Heiple, John’s court-appointed GAL, also believed
       John was capable of independently managing his person and estate. Heiple reported John
       scored 29 out of a possible 30 points on an attached MMSE, indicating the absence of
       cognitive impairment; that while the estranged children with whom he met expressed “vague
       concerns” about John’s well-being, the “gravamen of their interest” seemed to focus on the
       operation of Lucas and on John’s finances.
¶ 54        The record also contains John’s own affidavit, which we find pertinent to the issue of his
       ability to manage his business and personal financial affairs. The affidavit demonstrates that:
       John recognized that his wife’s death in 2009 necessitated changes in his estate plan; he has
       retained counsel for financial planning for many years; he used that attorney for the update
       of his estate plan, which included revisions to his will and an inter vivos trust and the
       execution of several documents to prepare for potential contingencies–a living will, a power
       of attorney for health care, a separate power of attorney for the comprehensive management
       of his estate. His actions portray a person cognizant of his financial responsibilities, capable
       of addressing current issues with his estate, and foresightful enough to recognize the realities
       of aging and to plan for resulting exigencies if or when they arise.
¶ 55        We find John’s burden of producing affirmative matter that would defeat James’s claim
       was satisfied, and the burden shifted to James to show the affirmative matter is either
       unfounded or requires the resolution of essential, material facts before it is proven. Brady v.
       Prairie Material Sales, Inc., 190 Ill. App. 3d 571, 579 (1989). James argues that the
       affidavits he produced raised material questions of fact and that the existence of those factual
       disputes precluded dismissal of his petition. We disagree.
¶ 56        In assessing whether James has successfully rebutted John’s affirmative matter, we
       consider: his allegations in his petition and the affidavits of John’s two sons, Andrew and
       John; of John’s brother Joseph and his sister Jane Myrna; and of Dr. Finkel.
¶ 57        James’s petition alleged, without any supporting medical facts, that John was not fully
       capable of managing his person or estate due to age and infirmity. He asserted, on
       information and belief: that John had neither a guardian nor agents under any power of
       attorney; that the house in which John resided with Maureen and Tom was John’s by virtue
       of a beneficial interest in a trust; and the dollar value of John’s real property and estate, but
       it conceded ignorance of John’s anticipated gross income. There are no facts in the petition
       that militate against John’s affirmative matter.
¶ 58        We find, as did the trial court, that the affidavits of John’s brother and sister and two of
       his sons are remote in time and not suggestive of a present disability. John’s brother Joseph
       averred that John stopped attending family meetings in February 2005, that in 2006 he
       looked dazed and was staring at the floor, that in June 2009 he did not speak to Joseph and
       his wife at John’s wife’s funeral; that he did not attend his brother Bob’s funeral in
       September 2009. At unspecified times, he had seen John being driven in his own car. John’s
       sister Jane’s affidavit plainly establishes that she has not spoken with him since 2005,
       claiming he has never accepted or returned her calls.
¶ 59        The affidavit of John’s son, Andrew, alleged unresponsiveness in 2005 and 2006 but
       nothing current. His son John recalled a confused phone call from John but stated that he had


                                                 -11-
       not seen his father since December 2005. There is nothing in the four affidavits that
       establishes disability or is inconsistent with the estrangement from some family members
       which significantly predated John’s falls or seizures or which differs from past deficits that
       his doctors averred had been successfully resolved. None of these affidavits puts John’s
       current mental condition in issue or requires resolution of factual disputes.
¶ 60        Dr. Finkel’s 36-page affidavit vigorously criticizes alleged deficiencies in and absence
       of documentary support for the affidavits of Dr. Mattai and Dr. Lizer. He lists a number of
       tests he asserts are essential in adequately evaluating John’s mental, physical, and financial
       abilities. Yet Dr. Finkel, who never spoke with or examined John, does not present a single
       fact to support a conclusion that John is, in fact, disabled due to age or infirmity or to refute
       any conclusions of John’s doctors based on their personal knowledge and their routine,
       continuous treatment of their patient over a five-year period.
¶ 61        We find that the allegations in James’s petition and the supporting affidavits that he has
       submitted, even when viewed in the light most favorable to him, do not rebut–or even
       meaningfully challenge–the affirmative matter shown by John.
¶ 62        James’s final challenge to the trial court’s dismissal is the claimed error of the court’s
       reliance on the cases of Williams v. Estate of Cole, 393 Ill. App. 3d 771 (2009), and In re
       Estate of Silverman, 257 Ill. App. 3d 162 (1993), to validate the use of the medical reports
       submitted by Dr. Mattai and Dr. Lizer. Instead, James believes that because he did not
       include a medical report with his petition for guardianship, the trial court should have
       ordered an independent evaluation under section 11a-9(b) of the Probate Act (755 ILCS
       5/11a-9(b) (West 2010)). Section 11a-9(b) provides:
            “If for any reason no [medical] report accompanies the petition, the court shall order
            appropriate evaluations to be performed by a qualified person or persons and a report
            prepared and filed with the court at least 10 days prior to the hearing.” 755 ILCS 5/11a-
            9(b) (West 2010).
¶ 63        In Williams, a daughter (the petitioner) petitioned for guardianship of her mother (the
       respondent). The petitioner did not attach a medical report to the petition. The respondent
       moved to dismiss and attached medical reports from two of her doctors stating that she was
       not impaired. The petitioner filed a motion for an independent examination of the respondent
       supported by an affidavit from Dr. Sanford Finkel, who had not personally examined the
       respondent, stating that he had reviewed various documents and opined that the respondent
       was unable to make reasoned decisions. The trial court granted the motion to dismiss and
       declined to order the requested exam. Williams, 393 Ill. App. 3d at 774.
¶ 64        The appellate court affirmed the dismissal, rejecting the petitioner’s argument that the
       trial court was required to order an additional evaluation of the respondent. Williams, 393 Ill.
       App. 3d at 780. The court found that such an evaluation is not necessary “where respondents
       come forward with ‘statutorily sufficient reports.’ ” Williams, 393 Ill. App. 3d at 780
       (quoting Silverman, 257 Ill. App. 3d at 171).
¶ 65        In Silverman, the respondent moved to dismiss a petition for guardianship filed by his
       brother (the petitioner). The motion to dismiss included a report from the respondent’s
       doctor, who averred that he had treated the respondent for over 30 years and that the

                                                 -12-
       respondent was mentally competent and able to make his own personal and financial
       decisions. The GAL opined that the respondent did not need a guardian. The petitioner filed
       a motion to strike the doctor’s affidavit. The trial court denied the petitioner’s motion to
       strike, but did allow the petitioner to take the doctor’s deposition. Silverman, 257 Ill. App.
       3d at 168. The court considered both the report and deposition in reaching its decision to
       grant the motion to dismiss. Silverman, 257 Ill. App. 3d at 168.
¶ 66       The appellate court affirmed the dismissal. Silverman, 257 Ill. App. 3d at 173. The court
       found that even though the respondent’s doctor had not asked questions about her financial
       affairs and his report was not exhaustive, the doctor had a long history with the respondent
       and made his evaluation in the context of that relationship, the report was reliable, it
       complied with the statutory requirements and was properly considered at the guardianship
       hearing. Silverman, 257 Ill. App. 3d at 168-69. Because the respondent had presented a
       statutorily sufficient report indicating she was mentally competent, and the petitioner had not
       met her burden of showing that this affirmative matter was unfounded or required the
       resolution of a material fact, the appellate court concluded:
           “We do not believe that the code provision requiring courts to order evaluations when
           petitions lack medical reports mandates such orders when respondents come forward
           with statutorily sufficient reports. The clear purpose of the provision is to ensure that the
           court adjudicates disability based upon a reliable evaluation of the subject’s physical and
           mental status.” Silverman, 257 Ill. App. 3d at 171.
¶ 67       In the instant case, we have found that Dr. Mattai and Dr. Lizer are medical professionals
       licensed to practice in Illinois, that each had treated John for five years beginning with the
       year of his first seizure in 2005 and continuing after the initiation of the guardianship action;
       that the report submitted by each doctor expressly addresses each of the relevant elements
       in section 11a-9 (755 ILCS 5/11a-9 (West 2010)). We have also determined that the
       affidavits of the two doctors are sufficiently compliant with Illinois Supreme Court Rule
       191(a) (eff. July 1, 2002). We, therefore, conclude that the decision not to subject John to
       further unwarranted mental and physical evaluation is fully supported by Williams and
       Silverman.
¶ 68       Accordingly, we hold that the dismissal of count I of James’s petition for guardianship
       was proper.

¶ 69                         B. Dismissal of Count II–Section 2-619
¶ 70      The trial court’s dismissal order stated:
              “As to count II, it is ordered that it is dismissed with prejudice. The alleged
          adult/disabled victim objects to an order of protection. See 750 ILCS 60/103.”
       There is no other reference to count II in the order.
¶ 71      Margaret’s objection to count II is based on section 103(2) of the Domestic Violence Act,
       which provides:
          “ ‘Adult with disabilities’ means *** a high-risk adult with disabilities. A person may
          be an adult with disabilities for purposes of this Act even though he or she has never


                                                 -13-
           been adjudicated an incompetent adult. However, no court proceeding may be initiated
           or continued on behalf of an adult with disabilities over that adult’s objection, unless
           such proceeding is approved by his or her legal guardian, if any.” 750 ILCS 60/103(2)
           (West 2010).
¶ 72       In language that is permissive, not mandatory, section 11a-10.1 of the Probate Act (755
       ILCS 5/11a-10.1 (West 2010)) expressly authorizes the pursuit of appointment of a guardian
       and an order of protection in the same proceeding if, as is the case here, the petition alleges
       abuse, neglect or exploitation of the subject of the adjudication proceedings. We have not
       found, nor has James cited, any language stating or implying that this permissive joinder
       under the Probate Act (755 ILCS 5/11a-10.1 (West 2010)) nullifies the clear directive of the
       Domestic Violence Act (750 ILCS 60/103(2) (West 2010)) if John objects to the proceeding.
       Indeed, the prohibition against continuing in the face of an objection appears in the same
       sentence with a clear presupposition that the objector is a “high risk” disabled adult who may
       not as yet have been adjudicated or have a guardian. See 750 ILCS 60/103(2) (West 2010).
       Even were we to ignore the plain statutory language, we cannot see how the two claims are
       so inextricably interwoven that either one must be maintained for the resolution of the other.
       Nor can we find a basis for concluding that a petitioner faced with an objection is left without
       any remedy. In such an event, the order of protection claim could be voluntarily dismissed
       without prejudice and could be reinstated by the petitioner if a guardian is deemed necessary
       and if that guardian believes pursuit of the order of protection is warranted. Or the newly
       appointed guardian can institute proceedings for an order of protection independently if
       he/she finds it warranted.
¶ 73       Here, although James’s petition alleges that John is a high risk adult with disabilities who
       is being exploited by Margaret, it also concedes, on information and belief, that John does
       not have a guardian. Accepting these allegations as true, John is a high risk adult with
       disabilities who has no guardian. He prepared an affidavit, attached to Margaret’s motion to
       dismiss, in which he “object[ed] to both the initiation and continuation of the court
       proceeding seeking an order of protection on my behalf against Margaret Hanley,” and asked
       that the proceeding be dismissed. Thus, the proceeding could only continue if John’s
       objection was overridden by his guardian. See 750 ILCS 60/103(2) (West 2010). Since he
       has no guardian, the objection is dispositive because it stands as an affirmative matter
       defeating James’ request for guardianship.
¶ 74       Accordingly, we hold that the dismissal of count I of James’s petition for guardianship
       was proper.

¶ 75                              II. Sanctions in the Circuit Court
¶ 76        Following dismissal of James’s petition, Margaret filed a motion for sanctions, pursuant
       to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). The trial court granted the motion,
       ultimately awarding her fees in the amount of $29,644.83.
¶ 77        Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994) provides in pertinent part:
            “The signature of an attorney or party constitutes a certificate by him that he has read the
            pleading, motion or other paper; that to the best of his knowledge, information, and belief

                                                 -14-
            formed after reasonable inquiry it is well grounded in fact and is warranted by existing
            law or a good-faith argument for the extension, modification, or reversal of existing law,
            and that it is not interposed for any improper purpose, such as to harass or to cause
            unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion,
            or other paper is signed in violation of this rule, the court, upon motion or upon its own
            initiative, may impose upon the person who signed it, a represented party, or both, an
            appropriate sanction *** including a reasonable attorney fee.”
¶ 78        James has appealed, challenging the decision on four bases. We review the four
       challenges to the trial court’s decision awarding sanctions for an abuse of discretion. Whitmer
       v. Munson, 335 Ill. App. 3d 501, 514 (2002). Abuse of discretion occurs when no reasonable
       person could take the view adopted by the trial court. Whitmer, 335 Ill. App. 3d at 514.
       “When reviewing a decision on a motion for sanctions, the primary consideration is whether
       the trial court’s decision was informed, based on valid reasoning, and follows logically from
       the facts.” Technology Innovation Center, Inc. v. Multiuser Technologies Corp., 315 Ill. App.
       3d 238, 244 (2000).
¶ 79        The purpose of Rule 137 is to prevent the filing of lawsuits without legal or factual
       foundation, and not to penalize an attorney who is zealous but unsuccessful. Shea, Rogal &
       Associates, Ltd. v. Leslie Volkswagen, Inc., 250 Ill. App. 3d 149, 153 (1993). The rule is
       intended to prohibit the abuse of the judicial process by a litigant who makes a vexatious or
       harassing claim based on unsupported allegations of law or fact. Fremarek v. John Hancock
       Mutual Life Insurance Co., 272 Ill. App. 3d 1067, 1074 (1995). Since Rule 137 is penal in
       nature, it should be strictly construed. In re Marriage of Adler, 271 Ill. App. 3d 469, 475
       (1995).
¶ 80        Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994) mandates that signing attorneys or
       parties make reasonable inquiry into the basis for a pleading before filing it. In evaluating the
       signing party’s conduct in this regard, a trial court must consider reasonableness based upon
       circumstances existing at the time the pleading was filed, rather than engage in hindsight.
       Chicago Title & Trust Co. v. Anderson, 177 Ill. App. 3d 615, 623 (1988). When an appellate
       court reviews a decision on a motion for sanctions, it should consider whether the trial
       court’s decision: (1) was an informed one; (2) was based on valid reasons that fit the case;
       and (3) followed logically from the application of the reasons stated to the particular
       circumstances of the case. In re Estate of Smith, 201 Ill. App. 3d 1005, 1010 (1990).
¶ 81        First, James contends that the trial court erred when it denied his motion to strike
       Margaret’s sanction motion for failure to identify any false statement made in James’s
       petition. The plain language of the Rule 137, however, sets out a variety of bases for the
       imposition of sanctions. Ill. S. Ct. R. 137 (eff. Feb. 1, 1994). We do not interpret Rule 137
       as limiting sanctions to only filings that contain false statements.
¶ 82       In this case, the trial court did not abuse its discretion when it denied James’s motion to
       strike. Margaret’s motion charged James with having neither the facts nor the proper purpose
       to advance the claims asserted in count II, and at the hearing on her motion, Margaret
       reasserted that James had filed the petition for an improper purpose. She has not alleged that
       James made false statements in the petition and, therefore, need not identify such statements


                                                 -15-
       in her motion.
¶ 83       We note that James correctly cites Whitmer for the proposition that a motion for
       sanctions must allege which statements were false and which attorney fees stemmed from
       the false statements. See Whitmer, 335 Ill. App. 3d at 512-13. However, Whitmer is simply
       not applicable here. Because the sanction motion in that case alleged false statements and the
       instant case does not, Whitmer’s holding does not impact our decision.
¶ 84       Second, James challenges the trial court’s decision “forcing [him] to carry the burden of
       going forward with evidence” at the September 30, 2011, hearing even though Margaret did
       not “present any competent evidence in support of her motion” at the July 11 hearing.
       Margaret denies that the court shifted any burden to James, claiming it only complied with
       his request for an evidentiary hearing. The record contains no transcript for the July 11
       hearing; there is, however, a written order filed on July 19, 2011, which states:
               “Have John and Margaret Hanley presented a prima facie claim for Rule 137
           sanctions against James Hanley for failure to make a reasonable inquiry that the petition
           seeking to find John P. Hanley a disabled adult and the petition for an order of protection
           against Margaret Hanley were well-grounded in fact? Yes, the court must apply an
           objective standard of what was reasonable under circumstances existing at the time of
           the alleged violations. [Citation.] The parties will be allowed to present supplement[al]
           evidence and arguments relating to the circumstances existing that was not presented at
           the 7/11 hearing. No additional discovery is appropriate.” (Emphasis added.)
¶ 85       The order shows that the court determined that Margaret had presented a threshold case
       to support her motion and that the parties would be able to present further evidence and
       arguments on the merits at the September 30 hearing. The order complies with this court’s
       decision in In re Estate of Smith, 201 Ill. App. 3d 1005 (1990).
¶ 86       In Smith, we held that for the trial court to properly exercise its discretion in determining
       whether sanctions were warranted, the claimant is to be given an opportunity to prove that
       the threshold requirements for sanctions are present in the case; the estate was to be given
       the opportunity to rebut the claimant’s contentions, and both parties were to be given the
       opportunity to argue their respective positions. Smith, 201 Ill. App. 3d at 1010. James has
       cited no law suggesting this procedure is improper or that a burden was improperly or
       unfairly shifted to him.
¶ 87       Third, James alleges that the trial court abused its discretion when it imposed sanctions
       on him. The specific bases alleged for this claim are: granting Margaret’s motion based on
       facts and circumstances that arose after James filed his petition; the failure of Margaret’s
       motion to identify any false allegations in the petition; basing the decision on facts not
       alleged in Margaret’s motion; and James’s objective basis for filing his petition. James
       further argues, in support, that the Domestic Violence Act (750 ILCS 60/101 et seq. (West
       2010)) does not require a petitioner to seek consent before filing a petition, that he presented
       sufficient evidence to support the filing of his petition, and that the court imposed sanctions
       because he did not prevail.
¶ 88       Looking at the trial court’s order of October 4, 2011, the decision to award sanctions
       appears to be two-pronged. First, it finds that James’s continued prosecution for an order of

                                                 -16-
       protection against Margaret once John had objected was in clear contravention of section
       103(2) of the Domestic Violence Act (750 ILCS 60/103(2) (West 2010)). James argues that
       the objection was made after the filing of the petition and cannot, therefore, properly support
       the imposition of sanctions for the filing. We do not agree.
¶ 89        James invoked section 103(2) (750 ILCS 60/103(2) (West 2010)) to characterize John
       as a “high risk disabled adult” and to authorize or validate his pursuit of the order of
       protection against Margaret. The statute clearly directs that “no court proceeding may be
       initiated or continued” over the objection of the claimed adult with disabilities and plainly
       contemplates that the person making the objection will be a high risk disabled adult,
       adjudicated or not. (Emphasis added.) We presume James, through his counsel, knew and
       understood the law on which he relied and thus presume that he knew count II had to be
       dismissed if/when John filed his objection. In re Pontarelli, 393 Ill. 310, 316 (1946). In filing
       the two counts at the same time, James assumed the risk that John would object and his quest
       for the order of protection on John’s behalf would be short-circuited.
¶ 90        James did not have any right to continue his pursuit of the order of protection in the face
       of John’s objection. See 750 ILCS 60/103(2) (West 2010). Moreover, an attorney has a duty
       to dismiss a lawsuit when it becomes clear that it has no viable basis. Shea, Rogal &
       Associates v. Leslie Volkswagen, Inc., 250 Ill. App. 3d 149, 153 (1993). Here, the filing of
       John’s objection deprived James of any legal authority to continue to seek the order of
       protection on his behalf and required the dismissal of count II.
¶ 91        The second prong of the trial court’s decision to impose sanctions is its finding that:
               “In addition, at the hearing of 9/30/11 or at no prior hearing, did petitioner present
            even an iota of evidence suggesting any component of abuse, neglect, harassment,
            exploitation, or interference with personal liberty.”
¶ 92        We find the above finding logically flows from Margaret’s allegations in the motion for
       sanctions that “James Hanley had neither the facts nor the proper purpose to pursue the
       claims advanced in this case” and “[w]ith no more than conclusory allegations which, when
       tested, have been demonstrated to be completely without substance or merit, and with an
       undisclosed conflict of interest *** James Hanley has abused the processes of this court.”
¶ 93        Margaret’s motion for sanctions recounted a long and contentious history of family
       division and dysfunction, claimed that continuing this animus was the real purpose of
       James’s petition, and asserted that his allegations were without foundation, substance or
       merit. James insists that there was an objective basis for the filing of count II which
       precludes the imposition of sanctions.
¶ 94        The record shows that in 1992 John indicated that he no longer wanted to speak with
       James and that James, assertedly out of respect for his father, had not spoken with him in the
       18 years since that time. James’s testimony supporting his request for an order of protection
       against Margaret largely consisted of multilayered hearsay reports of others that evidently
       caused James to become “concerned” that Margaret was isolating John from his family and
       friends and seeking to gain control of Lucas for her own financial gain. James acknowledged,
       however, that John simply may not have wanted to speak with the estranged family members
       who approached him in public.

                                                 -17-
¶ 95       While his petition was largely based on reports from estranged family members with
      whom John has long indicated he wants no contact, James did testify to some information
      gleaned from others: John’s friend Dave Armitage told him that either Margaret or Maureen
      told him that he could take John to lunch but could not do so alone; Margaret handed Andy
      a check drawn on Jack’s personal account and told him that it was for his stock; the Peoria
      school board owned the land on which Lucas was located and sold it to a company allegedly
      owned by Margaret; some contractors and material suppliers told him that HM Stearn
      Ironworks, LLC, was allegedly co-owned by Margaret and managed by two employees of
      Lucas–one of whom was Heather McCord; Andy told James that an unnamed friend of that
      same Heather McCord had told him that Heather quit her job at Lucas because Margaret had
      asked her to do something she did not think was right; he was told that Lucas had received
      women’s business certification, which allegedly required a woman to be a 51% owner; and
      he heard that Lucas had received a stimulus grant to work on steel beams for the wind energy
      market but he learned there were no steel beams in wind towers and was concerned the
      company might have been used to misrepresent itself to do work that does not actually exist.
¶ 96       This tenuous and gossipy compendium, without more, seemed enough to James to
      warrant a conclusion that John needed protection from Margaret and that he should seek to
      have his father declared mentally impaired and his sister branded a domestic abuser. We can
      see that some of this information might generate a concern that would lead a reasonably
      objective person to try to gather some real facts, but James admitted at the hearing that,
      beyond the testimony he presented, he did no investigation into his father’s need for a
      guardian or for a court order to protect John from Margaret. We do not believe a reasonable
      person unaffected by the prevailing family animus or competitive business interests would
      have thought that information, without more, constituted a well-founded basis for bringing
      the instant action.
¶ 97       Clearly the trial court did not. Nor can we say that no reasonable person would agree with
      the court’s finding that there was no iota of evidence–as opposed to speculation and
      innuendo–that Margaret was exploiting, abusing, neglecting, or harassing John or interfering
      with his liberty. Consequently, we do not find that the trial court abused its discretion when
      it found sanctions warranted on this basis.
¶ 98       Fourth, James attacks the propriety of awarding fees and costs to Margaret for work
      performed to advance the interests of Lucas and paid for by the company. In responding to
      this claim, Margaret points out that she testified that she would have to reimburse Lucas from
      any award she received.
¶ 99       In support of his contention that the trial court abused its discretion when it imposed the
      instant attorney fee award, James cites only to Rule 137, and does so for the proposition that
      the trial court has the authority to award attorney fees as a sanction. His brief is totally devoid
      of citation to any authority indicating that the trial court abused its discretion because
      someone other than Margaret initially paid her fees. Nor does James cite any authority to
      support his contention that the trial court erred when it did not permit his counsel to question
      Margaret’s counsel.
¶ 100      Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008) mandates that an appellate brief


                                                  -18-
      must contain argument with citation to appropriate authority. The burden of argument and
      research is on the appealing party and not on the appellate court. Williams v. Danley Lumber
      Co., 129 Ill. App. 3d 325 (1984). Any issue that has not been properly presented for review
      may be deemed waived. Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008); Universal Casualty Co.
      v. Lopez, 376 Ill. App. 3d 459, 465 (2007). We find this claim to have been waived by James.
¶ 101     Accordingly, we hold the trial court did not abuse its discretion in imposing sanctions
      upon James.

¶ 102                          III. Margaret’s Cross-Appeal on Sanctions
¶ 103       Margaret submitted two fee petitions. The first, in the amount of $42,596.24, covered the
        period from November 1, 2010, through September 30, 2011; the second covered work
        between October 1, 2011, and November 30, 2011, and totaled $4,741.42. James objected
        to portions of the claimed fees and submitted a document to the court entitled “Petitioner’s
        Annotations to David & Campbell L.L.C. Invoices” on which its objections are identified by
        labeled red boxes in the left margin and yellow highlighting. The annotations included both
        the original and the supplemental fee petitions. As the trial court indicated in a footnote in
        its order, it designated deductions from the invoices “relating to pending appeal or not
        reasonably related to the instant litigation” by blue marks on the petitioner’s annotations.
        These deductions were taken from both fee petitions and totaled $12,951.41.
¶ 104       Margaret argues that the trial court made a “mathematical” error when it inadvertently
        omitted her supplemental petition for fees and costs from its calculation of the amount of
        attorney fees owed to her. James counters that (1) the determination of the amount of the
        award was an exercise of the court’s discretion and should not be disturbed absent a clear
        abuse of that discretion, citing Alcantar v. Peoples Gas Light & Coke Co., 288 Ill. App. 3d
        644, 650-51 (1997), and (2) Margaret’s failure to ask the trial court to clarify its ruling should
        stand as a bar to her cross-appeal.
¶ 105       The challenged calculation, as shown in the trial court’s order, is:
                “Gross fees and costs request:                           $42,596.24
                Minus fees and costs relating to pending appeal
                or not reasonably related to the instant litigation:     $12,951.41
                Fees and costs awarded                                   $29,644.83”
¶ 106       Only Margaret’s original fee petition seeking $42,596.24 is represented in the “gross”
        request; her supplemental petition for $4,742.41 is not included. She asks this court to correct
        this “inadvertent” error, pursuant to Illinois Supreme Court Rule 366 (eff. Feb. 1, 1994). In
        so doing, she is not challenging the trial court’s exercise of discretion but is contending that
        the court made a “mathematical” error.
¶ 107       For the following reasons, we are persuaded the trial court did inadvertently err and its
        error was a scrivener’s omission rather than an exercise of its discretion or an error in
        arithmetic.
¶ 108       First, the title “Gross fees and costs request” suggests an intent by the court to begin the
        calculation by setting out the entirety of Margaret’s claim for fees/costs and then deducting

                                                  -19-
      those the court considered inappropriate from that amount. (Emphasis added.) Second, using
      James’s annotated document, it made deductions from both fee petitions; however, the
      document itself does not indicate there are two petitions or where the break between them
      falls. Third, if the court intended to disallow the supplemental petition in its entirety, it would
      not have stricken three individual charges from it because, by doing so, it would have made
      those deductions twice.
¶ 109     The resolution of this issue would have been far simpler if Margaret had filed a motion
      to reconsider in the trial court and she should have done so. It is, however, not a bar to relief
      in this court that she did not. Rule 366(b)(3)(ii) provides that “[n]either the filing of nor the
      failure to file a post-judgment motion limits the scope of review” of nonjury civil matters by
      the appellate court. Ill. S. Ct. R. 366(b)(3)(ii) (eff. Feb. 1, 1994). As it seems clear to us that
      the court intended, in setting out “gross fees and costs request,” to include all of the fees
      sought by Margaret, we elect to use our authority under Rule 366 to make that sole
      correction. We hold that the following calculation of Margaret’s fee award is the correct one:
               Gross fees and costs request:                             $47,337.66
               Minus fees and costs relating to pending appeal            12,951.41
               or not reasonably related to the instant litigation
               Fees and costs awarded                                    $34,386.25

¶ 110                     IV. Margaret’s Motion for Rule 375(b) Sanctions
¶ 111     Margaret has sought sanctions against James under Illinois Supreme Court Rule 375(b)
      (eff. Feb. 1, 1994). Under Rule 375(b) sanctions may be imposed if an appeal is frivolous or
      not taken in good faith. Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994). An appeal is considered
      frivolous if it is “not reasonably well grounded in fact and not warranted by existing law or
      a good-faith argument for the extension, modification, or reversal of existing law.” Ill. S. Ct.
      R. 375(b) (eff. Feb. 1, 1994).
¶ 112     Margaret frames her request for Rule 375(b) sanctions as follows:
              “The underlying case is baseless, is in direct contravention of the applicable statute,
          and has never been supported with ‘even an iota of evidence.’ It is equally frivolous here
          on appeal. Because the appeal is not reasonably well-grounded in fact and is not
          warranted by existing law or a good faith argument to the contrary, sanctions should be
          imposed pursuant to Supreme Court Rule 375(b).”
¶ 113     James insists that, because his petition for guardianship was still pending, the statutory
      requirement did not apply in this case. He characterizes the point of this appeal as follows:
              “The question that is squarely presented is whether a party who has sought the
          appointment of a guardian may pursue an order of protection over the disabled adult’s
          objection during the pendency of the guardianship proceedings,” (Emphasis in original.)
      We have already found that the answer to James’s question is “no.” Supra ¶¶ 72-73. The
      difference in our consideration of Rule 375 sanctions, however, is that there was no case law
      that was squarely on point at the time James filed his appeal. The parties have not cited, nor
      have we found, any case directly addressing and answering whether a person who has

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      simultaneously filed a petition for guardianship of an alleged disabled adult and a petition
      on behalf of that disabled adult for an order of protection against an allegedly abusive third
      person is required to dismiss the latter claim if the disabled person objects, even if the
      guardianship claim is still pending.
¶ 114      We believe James’s appeal with regard to count II of his petition can be fairly read as
      seeking a clarification of the law where there is silence and/or seeking a modification of the
      trial court’s interpretation of the requirement of the statute. Either purpose is sufficient to
      avoid the penalty of Rule 375(b). Consequently, Margaret’s request for sanctions on appeal
      is denied.

¶ 115                                       CONCLUSION
¶ 116       The trial court’s dismissal of both counts of James’s petition for guardianship and order
        of protection is affirmed. The trial court’s imposition of sanctions upon James for his
        continued pursuit of the order of protection after John objected to its continuation is
        affirmed. The trial court’s inadvertent error in calculating the amount of the sanction award
        to Margaret is corrected pursuant to supervisory authority. Margaret’s motion for sanctions
        for James’s pursuit of this appeal is denied.

¶ 117      Affirmed in part, corrected in part, and sanctions on appeal denied.




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