                                Illinois Official Reports

                                        Appellate Court



                        In re Estate of Rodden, 2015 IL App (1st) 140798



Appellate Court           In re ESTATE OF ANGUS RODDEN, a Disabled Person (Robert F.
Caption                   Harris, Cook County Public Guardian and Plenary Guardian of the
                          Estate and Person of Angus Rodden, a disabled person,
                          Petitioner-Appellee, v. Audrey Newton, Respondent-Appellant).


District & No.            First District, First Division
                          Docket No. 1-14-0798


Filed                     January 12, 2015


Held                       In an action arising from an order entered by the trial court pursuant to
(Note: This syllabus a petition filed by the public guardian finding that respondent had
constitutes no part of the breached her fiduciary duty to a disabled person for whom she had
opinion of the court but been granted power of attorney over his health care and personal estate
has been prepared by the by improperly writing checks from his account to herself, the trial
Reporter of Decisions court properly denied respondent’s motion to vacate the trial court’s
for the convenience of order, notwithstanding respondent’s contention that the order was
the reader.)               void for lack of jurisdiction because the public guardian could only
                           proceed by issuing a citation pursuant to section 16-1 of the Probate
                           Act and a summons under section 2-201 of the Code of Civil
                           Procedure, since the “petition” mechanism used by the public
                           guardian is a recognized remedy and is the substantive equivalent of a
                           citation to discover assets and is the functional equivalent of a
                           summons to the extent that it commanded respondent to appear in
                           court on a certain date, time and place to account for her actions.



Decision Under            Appeal from the Circuit Court of Cook County, No. 11-P-6818; the
Review                    Hon. Kathleen McGury, Judge, presiding.

Judgment                  Affirmed.
     Counsel on               Kienlen & Pietsch, of Wheaton (J. Laurence Kienlen, of counsel), for
     Appeal                   appellant.

                              Robert F. Harris, Public Guardian, of Chicago (Kass A. Plain and
                              Christopher Williams, of counsel), for appellee.



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




                                               OPINION

¶1          In his waning years, Angus Rodden, age 93, granted his friend and caretaker, Audrey
       Newton, a power of attorney over his health care and personal estate. Robert Harris, the
       public guardian of Cook County, apparently believing Rodden was not being cared for in an
       optimal manner, filed a petition for guardianship over Rodden in the circuit court of Cook
       County. The court granted that petition. Newton appeared at the hearing on the guardianship
       and resigned as Rodden’s agent under the power of attorney. These resignations were in
       writing and filed with the court below. After acquiring guardianship, the public guardian
       investigated Rodden’s situation and discovered that Newton had written checks from
       Rodden’s account to herself totaling $17,000.
¶2          The public guardian then filed a two-count pleading entitled “Petition for Accounting
       under Power of Attorney for Property.” The petition’s prayer for relief asks, among other
       things, that the court order Newton to file an accounting within 21 days, hold a hearing on
       any improper disbursements, and enter a judgment against Newton for any money
       improperly taken. Copies of the checks in question were attached to the petition.
¶3          The petition is largely based on several interrelated provisions of the Illinois Power of
       Attorney Act. 755 ILCS 45/1-1 et seq. (West 2012). The first requires agents to maintain
       records of any disbursements they make on behalf of the principal and to provide copies of
       those records upon request to the principal’s court-appointed guardian. 755 ILCS 45/2-7(c)
       (West 2012). The same law also provides that the public guardian may “petition the court for
       an order” requiring the agent to produce her record of receipts and disbursements. (Emphasis
       added.) 755 ILCS 45/2-7(d) (West 2012). It specifies that if the agent fails to do so and the
       court finds that the agent’s failure to provide her record in a timely manner to the public
       guardian was without good cause, the court may assess costs and attorney fees against the
       agent, and “order such other relief as is appropriate.” Id. Finally, it provides that an agent is
       liable to the principal for the amount required to make the principal whole. 755 ILCS
       45/2-7(f) (West 2012).
¶4          On April 25, 2012, the trial court entered an order granting the public guardian leave to
       file the petition and to serve it upon Newton through a special process server, and setting the
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     case for May 18 for “Audrey Newton to appear and for status.” On May 14, 2012, a special
     process server personally served Newton with a copy of the April 25 order and the petition,
     but not with a summons. Newton does not dispute the validity of this service. After Newton
     did not appear at the May 18, 2012, hearing, the court entered an order directing her to file an
     accounting by June 8 and to appear on June 14. The same day, the public guardian sent
     Newton a letter by regular and certified mail, enclosing a copy of that order. The record
     contains a returned certified mail “green card” for the letter indicating it was delivered on
     May 19 but which bears no recipient’s signature. On June 14, 2012, after Newton twice
     failed to appear in court to respond to the petition, the court entered an order finding that
     Newton had breached her fiduciary duty to Rodden and imposed a judgment against her for
     $17,000.
¶5        Rodden died two weeks later, on June 30, 2012. On October 15, 2013, the trial court
     closed the disabled person’s estate, after the public guardian had accounted for his work on
     the matter and distributed Rodden’s assets to various heirs.
¶6        On November 19, 2013, Newton, through counsel, filed a motion to vacate the $17,000
     judgment, alleging that it was void for lack of jurisdiction. Newton alleged that the public
     guardian could only proceed by issuing a citation under section 16-1 of the Illinois Probate
     Act of 1975 (755 ILCS 5/16-1 (West 2012)) and a summons under section 2-201 of the
     Illinois Code of Civil Procedure (735 ILCS 5/2-201 (West 2012)). Newton admitted that she
     was physically present at the initial guardianship hearing but noted that she had never filed
     an appearance in the case. The public guardian responded, essentially arguing that: (1) the
     petition was a valid method of proceeding to collect money the agent owed the ward; and (2)
     Newton subjected herself to the jurisdiction of the court by participating in the original
     guardianship hearing. Newton did not testify at the hearing on the motion to vacate, but her
     counsel indicated that Newton did not respond to the court orders or the petition because of
     “contempt” and “bad feelings” she held toward the public guardian’s office. After briefing
     and argument, the trial court denied the motion to vacate. The court stated that the petition
     “does comply with all of the requirements of due process. It notifies the Respondent. It
     notifies Ms. Newton. It gives her an opportunity to appear and defend. It advises her of the
     consequents of not appearing.” This appeal followed.
¶7        We begin with several basic principles which our supreme court recently reaffirmed. For
     its judgment to be valid, the trial court must have jurisdiction over the subject matter and
     jurisdiction over the parties. BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311,
     ¶ 17. A judgment entered by a court without jurisdiction is void and may be challenged at
     any time, either directly or collaterally. Id. We review de novo whether the trial court
     obtained personal jurisdiction. Id. Personal jurisdiction is established either by service of
     process in accordance with statutory requirements or if a party voluntarily submits to the
     court’s jurisdiction. Id. ¶ 18. Here, Newton was personally served with the petition, and she
     does not contest the validity of that service. Accordingly, the trial court had personal
     jurisdiction over her.
¶8        Newton, however, also challenges the manner in which the petition was labeled,
     essentially contending that the public guardian sought the wrong remedy, and she leapfrogs
     that into an argument that the trial court had no jurisdiction. She correctly notes that the
     public guardian could have accomplished a similar result by framing his pleading as a
     citation to recover assets and serving it upon Newton along with a summons. However, the

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       Power of Attorney Act specifically states that a guardian may proceed instead by “petition,”
       and the context of the relevant section makes it clear that the petition is not a new and
       independent proceeding requiring a new case number and judicial assignment, but rather is in
       the nature of a third-party counterclaim brought under the aegis of the existing guardianship
       case. 755 ILCS 45/2-7(d) (West 2012). Section 2-201 of the Illinois Code of Civil Procedure
       also specifies that actions are commenced by “complaint,” unless otherwise expressly
       provided by statute. 735 ILCS 5/2-201 (West 2012). Therefore, the “petition” mechanism
       used by the public guardian is statutorily recognized; the remedies were not as limited as
       Newton contends. More importantly, it is well established that “when analyzing a party’s
       request for relief, courts should look to what the pleading contains, not what it is called.”
       In re Haley D., 2011 IL 110886, ¶ 67. A plain reading of the petition reveals that it is the
       substantive equivalent of a citation to recover assets. Similarly, the court order accompanying
       the petition was the functional equivalent of a summons. It commanded Newton to appear
       and account before the court on a specified date, time and place.
¶9         Due process requires that before a court deprives someone of property, such as by
       entering a money judgment, the party is entitled to notice and an opportunity for a hearing
       appropriate to the nature of the case. Passalino v. City of Zion, 237 Ill. 2d 118, 124 (2009).
       The various notices issued here more than comport with basic due process requirements.
¶ 10       The record contains no transcript of the original guardianship hearing at which Newton
       appeared and resigned her agency under the power of attorney. Because we resolve the issues
       presented on the grounds set forth above, we need not address whether Newton’s
       participation at that hearing and any statements she made orally subjected her to the
       jurisdiction of the court.
¶ 11       For these reasons, we find that the trial court correctly denied the motion to vacate the
       judgment.

¶ 12      Affirmed.




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