In re Estate of Pellico

• Decision Date: 10 September 2009
• Docket Number: No. 2-07-1045.,No. 2-07-1058.,2-07-1045.,2-07-1058.
• Citation: 334 Ill.Dec. 12,916 N.E.2d 45
• Parties: In re ESTATE OF Evelyn PELLICO (Gregory Pellico, Plaintiff-Appellee, v. Robert I. Mork, Public Guardian for Du Page County and Temporary Guardian of Evelyn Pellico, and Alfred A. Spitzzeri, Guardian ad Litem, Defendants-Appellants). In re Estate of Evelyn Pellico (Gregory Pellico, Plaintiff-Appellant, v. Robert I. Mork, Public Guardian for Du Page County and Temporary Guardian of Evelyn Pellico, and Alfred A. Spitzzeri, Guardian ad Litem, Defendants-Appellees).
• Court: United States Appellate Court of Illinois

916 N.E.2d 45 334 Ill.Dec. 12 In re ESTATE OF Evelyn PELLICO (Gregory Pellico, Plaintiff-Appellee, v. Robert I. Mork, Public Guardian for Du Page County and Temporary Guardian of Evelyn Pellico, and Alfred A. Spitzzeri, Guardian ad Litem, Defendants-Appellants).
In re Estate of Evelyn Pellico (Gregory Pellico, Plaintiff-Appellant, v. Robert I. Mork, Public Guardian for Du Page County and Temporary Guardian of Evelyn Pellico, and Alfred A. Spitzzeri, Guardian ad Litem, Defendants-Appellees). No. 2-07-1045. No. 2-07-1058. Appellate Court of Illinois, Second District. September 10, 2009.

[916 N.E.2d 46]

Robert G. Black, Law Offices of Robert G. Black, Robert I. Mork, Jennifer B. Martyn, Kuhn, Mitchell, Moss, Mork & Lechowicz, LLC, Naperville, for Estate of Evelyn Pellico, Robert I. Mork, Public Guardian for Du Page County and Alfred A. Spitzzeri, Guardian Ad Litem in No. 2-07-1045.

Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi & Andersson, P.C., Aurora, for Gregory Pellico in No. 2-07-1045.

Gregory P. Adamo, Clingen, Callow & McLean, LLC, Wheaton, for Anthony Pellico in No. 2-07-1045.

Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi & Andersson, P.C., Aurora, for Gregory Pellico in No. 2-07-1058.

Robert G. Black, Law Offices of Robert G. Black, Naperville, for Estate of Evelyn Pellico, Robert I. Mork and Alfred A. Spitzzeri in No. 2-07-1058.

[916 N.E.2d 47]

Gregory P. Adamo, Clingen, Callow & McLean, LLC, Wheaton, for Anthony Pellico in No. 2-07-1058.

Justice McLAREN delivered the opinion of the court:

In appeal No. 2-07-1045, defendants Robert I. Mork, public guardian for Du Page County (Public Guardian) and temporary guardian of Evelyn Pellico, now deceased (Evelyn), and Alfred A. Spitzzeri, guardian ad litem (GAL), appeal part of the circuit court's order of March 23, 2007, which denied their petition for fees, and part of the circuit court's judgment of September 17, 2007, which denied the Public Guardian's motion to reconsider and vacate the March 23, 2007, order and denied the GAL's notice of equitable lien. In appeal No. 2-07-1058, plaintiff, Gregory Pellico (Gregory), appeals part of the circuit court's judgment of September 17, 2007, in which the circuit court ordered that "there shall be no withdrawals, transfers or financial transactions on any accounts involving or titled, in whole or in part, to Evelyn Pellico or Peter Pellico." We consolidated these appeals. Regarding appeal No. 2-07-1045, we affirm in part and reverse in part the circuit court's March 23, 2007, order; we dismiss as moot the appeal as it relates to the September 17, 2007, order; and we remand for further proceedings. Regarding appeal No. 2-07-1058, we dismiss the appeal as moot.

Regarding appeal No. 2-07-1045, the Public Guardian and the GAL first argue that the circuit court erred by not ordering payment of their reasonable and necessary guardianship fees. They assert that, contrary to its determination, the circuit court had subject matter jurisdiction to order payment of guardianship fees because: (1) the statutory scheme sets forth the duties of a public guardian, allows for appointment of a temporary guardian on an emergency basis, and provides for payment of guardianship fees accordingly; (2) a plain reading of section 11a-18(d) of the Probate Act of 1975 (755 ILCS 5/11a-18(d) (West 2006)) reveals that it does not apply; (3) the use of the word "estate" in the Probate Act and in the court's order of July 31, 2006, is not meant to exclude trusts, but rather the assets in the ward's trust estate are meant to be directly and immediately protected under a temporary guardianship pursuant to section 11a-4 of the Probate Act (755 ILCS 5/11a-4 (West 2006)); (4) if section 11a-18(d) does indeed apply, the Probate Act does not and cannot require the filing of a separate action beyond a temporary guardianship in order to protect the assets of a disabled adult; and (5) the remainder of the circuit court's March 23, 2007, order is not based upon good authority. Second, the Public Guardian and the GAL argue that the circuit court erred in determining it had no personal jurisdiction over Gregory, including as trustee.

Regarding appeal No. 2-07-1058, Gregory argues:

I. "The court below correctly ordered that it had no jurisdiction over the Evelyn Pellico and Peter Pellico trusts. Having no jurisdiction, the circuit court erred by entering an order prohibiting [him] from accessing or otherwise managing, controlling or disbursing assets of the trusts on behalf of the trusts or its beneficiaries pending the outcome of the appeal.

A. The court below correctly ruled that it had no subject matter jurisdiction over the Evelyn Pellico or Peter Pellico trusts at the time of the guardian's appointment.

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B. Even if the court had jurisdiction over the trusts at the time of the

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appointment of the guardian, any powers the guardian had over the trusts terminated upon the death of [Evelyn].

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C. The court below correctly determined that it had no personal jurisdiction over the trustee.

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D. Because the court order declining jurisdiction was correct, the court below erred when it imposed a stay against the trustees' unfettered right to access, manage, control or distribute the assets of the trusts according to their terms."

I. FACTS

On July 28, 2006, the Public Guardian filed an emergency petition for guardianship over the person and estate of Evelyn. The petition was filed at the request of Du Page County Senior Services, Anthony Pellico (one of Evelyn's sons), Manor Care Nursing Home of Hinsdale, and Hinsdale Hospital. The petition alleged the following. At the time of the filing of the petition, Evelyn was a gravely ill, 84-year-old patient at Hinsdale Hospital, suffering from dementia and advanced myelodysplastic syndrome, requiring frequent blood transfusions, and also suffering from a huge bed sore. Physicians deemed her condition terminal, and she was unable to make personal or financial decisions on her own due to her dementia. Evelyn was due to be discharged from the hospital as early as July 31, 2006. She had been a resident of Manor Care, a skilled nursing care facility in Hinsdale. Medical caregivers agreed, based upon Evelyn's medical needs, that upon release from the hospital, she should return to Manor Care.

The emergency petition also alleged that Evelyn had two sons, Anthony and Gregory Pellico. Anthony concurred with the medical caregivers that Evelyn should return to Manor Care and remain there for the remaining days of her life. However, Gregory wanted Evelyn to return to her apartment after her release from the hospital.

The emergency petition alleged that two trusts named Evelyn as beneficiary: the Evelyn Pellico Trust (purportedly worth $850,000 several years before the emergency petition was filed), and the Peter Pellico Trust¹ (purportedly worth $975,000 several years before the emergency petition was filed). Anthony and Gregory were co-trustees of both trusts at some point, but Gregory and his attorney denied Anthony access to those trusts and to any trust documents.² Gregory, who had been unemployed for several years, had been living in Evelyn's house and had complete access to the trusts. Anthony feared that Gregory had been living off the trusts and had been misappropriating the trust assets. Therefore, on July 25, 2006, Anthony contacted Du Page County Senior Services, which in turn contacted the Du Page County Public Guardian. Hinsdale Hospital, Manor Care, and Anthony all believed the emergency petition needed to be filed. Because Evelyn was due to be discharged from the hospital as early as July 31, 2006, the Public Guardian had no other means to guarantee Evelyn's welfare beyond filing the emergency petition for guardianship to protect her health and assets.

Gregory received notice of the emergency petition and appeared in open court on

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July 31, 2006, for the scheduled hearing. Gregory appeared pro se, representing himself to be Evelyn's son, power of attorney for Evelyn's property, and trustee for a trust of which Evelyn was the beneficiary. Gregory confirmed that he had been served. Gregory disputed that there was an emergency and requested "a continuance so I can get an attorney to represent my position."

That same day, Gregory filed a pro se responsive pleading entitled "Responsive Declaration of Gregory Pellico to Robert I. Mork's Emergency Petition for Guardianship of the Person and Estate of Evelyn Pellico." Gregory's pleading alleged that he had a discussion with a physician who stated that Evelyn's release from the hospital was not imminent and that Manor Care had previously abused Evelyn. Gregory's pleading denied that he was misappropriating funds and concluded that if any guardian were appointed for Evelyn it should be her sister, Lorraine Frederick.

On July 31, 2006, the circuit court, Judge Edward R. Duncan presiding,³ appointed the Public Guardian as the temporary guardian over both the person and the estate of the ward. The circuit court order stated:

"[T]his Court finds due cause to authorize the Public Guardian to access and control funds from any and all Trusts which name EVELYN PELLICO as beneficiary, including, but not limited to, the EVELYN PELLICO TRUST and the PETER PELLICO TRUST, and to freeze and prohibit any further financial activity, transactions, and withdrawals pertaining to the Trusts by the Co-Trustees, ANTHONY PELLICO and GREGORY PELLICO.

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4. ROBERT I. MORK, Public Guardian for Du Page County and Temporary Guardian of the Person and Estate of EVELYN PELLICO, is hereby authorized to access and control any and all Trusts which name EVELYN PELLICO as beneficiary, including but not limited to, the EVELYN PELLICO TRUST and the PETER PELLICO TRUST, for the purpose of withdrawing and disbursing funds therefrom for the benefit and well-being of EVELYN PELLICO and her Estate, and for the purpose of opening Guardianship accounts...