Zoleske v. Tait (In re Tait)

• Decision Date: 23 February 2017
• Docket Number: Appeal No. 3–15–0834
• Citation: 2017 IL App (3d) 150834,74 N.E.3d 64
• Parties: IN RE ESTATE OF Marion Young TAIT, a Disabled Person (Susan M. Zoleske, Former Guardian of the Person and Estate, Petitioner–Appellant, v. The Estate of Marion Young Tait and First Midwest Bank, Respondents–Appellees).
• Court: United States Appellate Court of Illinois

2017 IL App (3d) 150834

74 N.E.3d 64

IN RE ESTATE OF Marion Young TAIT, a Disabled Person(Susan M. Zoleske, Former Guardian of the Person and Estate, Petitioner–Appellant,

v.The Estate of Marion Young Tait and First Midwest Bank, Respondents–Appellees).

Appeal No. 3–15–0834

Appellate Court of Illinois, Third District.

Opinion filed February 23, 2017

Scott M. Hoster, of Castle Law, of Joliet, for appellant.

Angela E. Hart Major, of First Midwest Bank, of Plainfield, for appellee First Midwest Bank.

Jamie Shimer, of Wengler Law Firm, LLC, of Joliet, for appellee Estate of Marion Young Tait.

OPINION

JUSTICE McDADE delivered the judgment of the court, with opinion.

¶ 1 Petitioner Susann M. Zoleske was appointed guardian of the estate of her mother, Marion Young Tait. The trial court removed petitioner as guardian. Petitioner appeals, arguing that the trial court erred when it removed her as guardian because it did not comply with section 23–3 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/23–3 (West 2014) ). We reverse and remand.

¶ 2 FACTS

¶ 3 In 2006, petitioner Susann M. Zoleske was appointed guardian of the person and estate of her mother, Marion Young Tait, a 95–year-old woman who had been adjudicated a disabled adult. The estate was valued at approximately $138,000. The trial court waived the requirement of surety for bond, and the court-appointed guardian ad litem , Colleen Mary Wengler, raised no objection to the appointment of petitioner as guardian. Petitioner filed her first accounting report, which the trial court approved, in October 2009. At the time, the trial court waived the filing of any subsequent accountings.

¶ 4 Four years later, in response to a form request from the court for status, petitioner advised the court that Marion was still living and also filed a pro se petition requesting the transfer of Marion's real estate to Marion's daughter, Barbara Tait. Barbara was the primary caregiver and had lived in Marion's residence for 35 years. Petitioner also filed a pro se accounting report of Marion's estate. Wengler was again appointed guardian ad litem for Marion to review the petition and accounting report. The trial court ordered petitioner to provide Wengler with a copy of the accounting report.

¶ 5 At a hearing in December 2013, the accounting report was not ruled on, and the matter was continued to a later date. In January 2014, the court noted that petitioner had failed to comply with the trial court's order to provide Wengler with the accounting report. Also, the court noted that petitioner was required to file an annual report on Marion. The trial court ordered petitioner to provide the annual report and the accounting report at the next status hearing.

¶ 6 At a hearing in April 2014, petitioner presented Wengler with a copy of the accounting report but failed to file an annual report. The matter was continued to the next status hearing. Before the hearing, Wengler stated her objections to the accounting report but neither presented nor filed her objections in writing.

¶ 7 At a hearing in June 2014, petitioner filed an annual report, which the trial court approved, and a status hearing was set to review the accounting report. Also in June, counsel appeared for the first time on behalf of petitioner and requested additional time to file an amended accounting to respond to Wengler's objections. The matter was set for another status hearing.

¶ 8 At a hearing in November 2014, counsel filed the first amended accounting report, which the trial court did not approve. A second amended accounting report was filed in July 2015, and the court ordered petitioner to post a surety bond within 30 days. Petitioner never posted bond.

¶ 9 A third amended accounting report was filed in September 2015. On September 25, 2015, Wengler expressed her issues regarding the original and amended accounting reports and requested a "brief pretrial conference" to discuss her concerns. The following colloquy took place:

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

[GUARDIAN AD LITEM ]: We are before the Court today, Judge, for continued consideration of approval of the guardian's third amended accounting covering the periods of 2010 through 2015.

The third amended accounting has been filed with the Court. I have had an opportunity to review it. And I have had an opportunity to speak also with Miss Dollinger.

I do have concerns with regard to the accounting that has been provided as well as the second and third amended accountings that have been provided. So I am not in a position at this point to recommend in favor of the approval of those accountings.

There are a few issues. And I think perhaps the best way at this point to proceed would be to conduct a brief pretrial conference with [Y]our Honor so that you can be made aware of what the issues are and give me some further direction in this matter.

It is not a large estate. So I don't think the filing of formal objections and hearing on those objections would be appropriate. But I do just want a few minutes of your time if you are inclined to allow that.

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

[GUARDIAN AD LITEM ]: Yes.

THE COURT: It does not appear that I am going to be going long this morning if you are available to wait around.

[GUARDIAN AD LITEM ]: Yes.

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

[GUARDIAN AD LITEM ]: Thank you.

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

The requested pretrial conference was conducted that day. Petitioner claimed that she was not allowed to participate in the pretrial conference; however, her attorney was present on her behalf. At the end of the conference, the trial court, sua sponte , ordered the removal of petitioner as guardian of Marion's estate.

¶ 10 Petitioner filed a motion to vacate the trial court's ruling, and the trial court, after a hearing, denied the motion. Petitioner appealed.

¶ 11 ANALYSIS

¶ 12 I. Waiver

¶ 13 Petitioner challenges the trial court's order removing her as guardian of her mother's estate. Respondents claim petitioner failed to preserve this issue for appellate review because petitioner did not object to the "pretrial settlement conference" at which the trial court removed petitioner as guardian.

¶ 14 It is well-established that issues not raised in the trial court are deemed waived and may not be raised for the first time on appeal. Western Casualty & Surety Co. v. Brochu , 105 Ill.2d 486, 500, 86 Ill.Dec. 493, 475 N.E.2d 872 (1985). Here, petitioner raised the issue of her removal as guardian in the trial court and, thus, preserved the issue for appeal. The issue arose when the trial court removed petitioner as guardian of her mother's estate at the end of the pretrial conference. Thereafter, petitioner filed a motion to vacate the judgment and requested a hearing on the motion. In the motion to vacate, petitioner argued that she was removed without citation to show reasons for her removal or an opportunity to respond to the court's motion for removal. At the hearing on the motion to vacate, petitioner's attorney addressed the removal issues:

"[PETITIONER'S ATTORNEY]: Judge, this is our motion. I don't know if you have had a chance to read it. I could give you a copy. It is a short motion drafted by my partner Mr. Jarot to vacate the order that was entered on September 25th removing my client as the guardian.

Mr. Jarot has laid out pretty clearly that the petition for rule to show cause needs to be issued against the person seeking to be removed. And that didn't happen here.

Apparently something happened at a pretrial conference. She was removed. But Mr. Jarot has laid it out. She has filed three accountings. No objections have been filed.

And based on the statute, the Court can issue its own rule or [guardian ad litem ] can issue a rule. Any interested party can issue a rule. But she simply can't be removed without rule being issued and a hearing being held. That is the basis of the motion ." (Emphasis added.)

The guardian ad litem agreed with petitioner's attorney's statement on the removal procedures, stating, "And Mr. Hoster is correct in terms of the procedure for removal of guardian for cause." The dialogue continued as the trial court posed a question to petitioner's attorney regarding its ability to remove petitioner as guardian to which petitioner's attorney responded:

"[PETITIONER'S ATTORNEY]: I disagree that you can do it in chambers. I believe like any other judge in a civil case, the court on its own motion can issue a petition for rule to show cause.

When it issues, there is a date set for a hearing. And the burden shifts to [petitioner] to show why she shouldn't be removed. We have an evidentiary hearing in front of you.

If we fail to show why she shouldn't be removed, you remove her. You make specific findings of fact. And there are ten things in the probate act that say reasons why you can remove her. You have to put that on the record.

You can do that, Judge. But I just don't believe it can be done the way it was done. That is our position according to the statute."

At the end of the hearing, petitioner's attorney made an effort to preserve the court's ruling on record. The following colloquy took place:

"[PETITIONER'S ATTORNEY]: Judge, the Court is finding that there is no need to rule on the issue under the statute; is that correct, just so the record is clear?

THE COURT: I am finding on my own motion, I am doing this for the reasons set forth in [755 ILCS] 5/23–2.

[PETITIONER'S ATTORNEY]: Thank you, sir. You have given me a record. I appreciate that."

We find it clear that petitioner raised the issue of the procedural impropriety of her removal before the trial court and preserved the issue for appellate review.

¶ 15 Respondents classify the removal hearing as a "pretrial settlement conference" at which petitioner had an opportunity to object to her removal, but this is not the case. In fact, the guardian ad litem requested a "brief pretrial conference" in order to discuss the...