In Re Estate of Doyle

838 N.E.2d 355, 362 Ill. App. 3d 293, 297 Ill. Dec. 868
CourtAppellate Court of Illinois
DecidedNovember 10, 2005
Docket4-04-1026
StatusPublished
Cited by32 cases

This text of 838 N.E.2d 355 (In Re Estate of Doyle) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Estate of Doyle, 838 N.E.2d 355, 362 Ill. App. 3d 293, 297 Ill. Dec. 868 (Ill. Ct. App. 2005).

Opinions

JUSTICE McCULLOUGH

delivered the opinion of the court:

The respondent, Rose Marie Doyle, appeals the order of the Sangamon County circuit court appointing petitioner James Doyle guardian of the person and petitioner Gary Eklund as guardian of the estate of Mary Rose Doyle (Mrs. Doyle). We affirm.

Respondent raises the following issues on appeal: (1) the judgment appointing the guardians is void because the temporaiy guardianship was extended past 60 days and the hearing for permanent guardianship was not set within 30 days, which was contrary to jurisdictional requirements; (2) the appointment of the guardian for the estate is void because a valid power of attorney was in effect; (3) the trial court erred when it failed to strike the guardian ad litem’s report; (4) the court erred when it refused to allow respondent to reopen her case and call Mrs. Doyle as a witness; (5) the court erred when it allowed petitioners’ witnesses to testify after petitioners failed to properly answer respondent’s Supreme Court Rule 213 interrogatory; (6) the court erred when it allowed testimony and business records into evidence without a proper foundation; and (7) the court abused its discretion by its appointment of petitioners as guardians.

On March 11, 2004, petitioners filed for temporary and permanent guardianship of Mrs. Doyle. On March 12, 2004, the trial court appointed petitioner James Doyle as the temporary guardian of Mrs. Doyle’s person and petitioner Gary Ecklund, Mrs. Doyle’s son-in-law, as temporary guardian of her estate. The court also appointed a guardian ad litem for Mrs. Doyle. On March 19, 2004, respondent filed a petition, which was later denied, to revoke the temporary guardianship. On May 12, 2004, the court granted petitioners’ request to extend the temporary guardianships to June 24, 2004.

Over the course of five days between June and August 2004, the trial court heard evidence on petitioners’ request for guardianship. The court heard testimony from Mrs. Doyle’s family, care givers, friends and acquaintances, as well as testimony from a caseworker and an investigator from Senior Services of Central Illinois, who investigated the allegations of abuse to Mrs. Doyle. The court also received a prehearing report and a posthearing report from the guardian ad litem recommending that petitioner Eklund be appointed guardian of Mrs. Doyle’s estate and that either petitioner James Doyle or John Doyle be appointed guardian of Mrs. Doyle’s person.

On September 7, 2004, the trial court found Mrs. Doyle disabled and incapable of managing her own estate and person. The court appointed petitioner James Doyle as permanent plenary guardian of Mrs. Doyle’s person and petitioner Eklund as the permanent plenary guardian of her estate. On October 1, 2004, respondent filed a motion for rehearing or to vacate the judgment. In November 2004, the court denied this motion. This appeal followed.

Respondent first argues the trial court’s permanent guardianship order is void because petitioners’ temporary guardianships were unlawfully extended past 60 days. Section 11a — 4 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/1 la — 4 (West 2004)) states:

“The temporary guardianship shall expire within 60 days after the appointment or whenever a guardian is regularly appointed, whichever occurs first. Except pending the disposition on appeal of an adjudication of disability, no extension shall be granted.”

If the court erred in extending petitioners’ temporary guardianships beyond 60 days, the question becomes whether this has any effect on the court’s ultimate guardianship determination. Rose Marie fails to provide any authority why the extension of the temporary guardian-ships makes the court’s ultimate guardianship decision void. According to Illinois Supreme Court Rule 341(e)(7) (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff. October 1, 2001)), an appellant’s brief shall contain:

“Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. *** Citation of numerous authorities in support of the same point is not favored. Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”

As a result, respondent forfeited this argument.

Respondent next argues the trial court’s guardianship order is void because the guardianship hearing was not held within 30 days of the filing of the guardianship petition. The portion of the statute at issue states: “Upon the filing of a petition pursuant to [sjection 11a — 8, the court shall set a date and place for hearing to take place within 30 days.” 755 ILCS 5/1 la — 10 (West 2004).

“The primary rule of statutory construction is to ascertain and give effect to the intention of the legislature, and that inquiry appropriately begins with the language of the statute.” People v. Woodard, 175 Ill. 2d 435, 443, 677 N.E.2d 935, 939 (1997). If the language of a statute is clear and unambiguous, we do not resort to other aids of statutory construction. Woodard, 175 Ill. 2d at 443, 677 N.E.2d at 939. While the language of this statute is clear that the court has 30 days to conduct a hearing on a guardianship petition, the statute is not clear on whether this 30-day requirement is mandatory or directory.

Our supreme court has stated that ordinarily when a statute uses the word “shall” it indicates a mandatory rather than a directory intent. Woodard, 175 Ill. 2d at 445, 677 N.E.2d at 940. However, this is not a rigid rule. Woodard, 175 Ill. 2d at 445, 677 N.E.2d at 940. Depending on the context of the statutory provision and the drafters’ intent, the statute may be treated as permissive. Woodard, 175 Ill. 2d at 445, 677 N.E.2d at 940.

We have stated that a universal formula for distinguishing between mandatory and directory provision does not exist. Cooper v. Department of Children & Family Services, 234 Ill. App. 3d 474, 481, 599 N.E.2d 537, 542 (1992). It depends on the intent of the legislature, “which is ascertained by examining the nature and object of the statute and the consequences which would result from any given construction.” Cooper, 234 Ill. App. 3d at 481, 599 N.E.2d at 542.

“Ordinarily a statute which specifies the time for the performance of an official duty will be considered directory only where the rights of the parties cannot be injuriously affected by failure to act within the time indicated. However, where such statute contains negative words, denying the exercise of the power after the time named, or where a disregard of its provisions would injuriously affect public interests or private rights, it is not directory but mandatory.
Where, as here, a statute does not provide sanctions for failure to comply with the provision in dispute, the requirement in the statute may be interpreted as being merely directory rather than mandatory.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Estate of Steele
Appellate Court of Illinois, 2026
Associated Bank v. Breidecker
Appellate Court of Illinois, 2026
In re Estate of Boey
2025 IL App (5th) 240271-U (Appellate Court of Illinois, 2025)
Kandeel v. Advocate Health & Hospitals Corp.
2024 IL App (1st) 240264-U (Appellate Court of Illinois, 2024)
Baxter v. Dunn
2024 IL App (3d) 230067-U (Appellate Court of Illinois, 2024)
Wedeking v. Illinois Central Railroad Co.
2023 IL App (1st) 221522-U (Appellate Court of Illinois, 2023)
In re S.F.
2023 IL App (4th) 230488-U (Appellate Court of Illinois, 2023)
In re G.C.
2021 IL App (3d) 210054-U (Appellate Court of Illinois, 2021)
Aemisegger v. Advocate Condell MedicalCenter
2020 IL App (2d) 190054-U (Appellate Court of Illinois, 2020)
Arlene Atlas v. Mayer Hoffman McCann, P.C.
2019 IL App (1st) 180939 (Appellate Court of Illinois, 2019)
In re Guardianship of Burdge
2018 IL App (5th) 170317 (Appellate Court of Illinois, 2019)
In re Guardianship of Lillian Burdge
2018 IL App (5th) 170317 (Appellate Court of Illinois, 2018)
In re Estate of Beetler
2017 IL App (3d) 160248 (Appellate Court of Illinois, 2017)
In re Estate of Kusmanoff
2017 IL App (5th) 160129 (Appellate Court of Illinois, 2017)
In re Estate of McHenry
2016 IL App (3d) 140913 (Appellate Court of Illinois, 2016)
Klesowitch v. Smith
2016 IL App (1st) 150414 (Appellate Court of Illinois, 2016)
In Re Estate of Wilson
939 N.E.2d 426 (Illinois Supreme Court, 2010)
Williams v. Bailey
939 N.E.2d 426 (Illinois Supreme Court, 2010)
Estate of Michalak v. Robert
934 N.E.2d 697 (Appellate Court of Illinois, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
838 N.E.2d 355, 362 Ill. App. 3d 293, 297 Ill. Dec. 868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-doyle-illappct-2005.