In re Estate of Martin

2022 IL App (1st) 220075-U

• Court: Appellate Court of Illinois
• Decided: December 28, 2022
• Docket: 1-22-0075
• Status: Unpublished

Opinion

2022 IL App (1st) 220075-U

THIRD DIVISION December 28, 2022

No. 1-22-0075

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). _____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

In re ESTATE OF JERRY C. MARTIN SR., ) Appeal from the ) Circuit Court of A Disabled Person ) Cook County. ) (Gianina Martin, ) ) Petitioner, ) ) v. ) ) Paul S. Franciszkowicz, as Guardian ad Litem for Jerry ) C. Martin Sr., and Jwon Martin, ) No. 21 P 3115 ) Respondents ) ) (Paul S. Franciszkowicz, Respondent-Appellee; ) Honorable Jwon Martin, Respondent-Appellant)). ) Jesse Outlaw, ) Judge Presiding. ______________________________________________________________________________

PRESIDING JUSTICE McBRIDE delivered the judgment of the court. Justices Reyes and Burke concurred in the judgment.

ORDER

¶1 Held: Jwon’s claims have been forfeited on appeal for failure to raise them before the trial court and failure to comply with Supreme Court Rule 341(h)(7). No. 1-22-0075

¶2 This case involves a petition for appointment of a guardian of a person with a disability

and a citation to recover assets relating to the care of Jerry C. Martin, Sr. (Jerry), and his

children, including respondent Jwon Martin (Jwon). 1 Following a hearing the trial court found

that Jwon breached her fiduciary duties to Jerry and converted $115,705.35 of Jerry’s funds. The

court then entered judgment against her in that amount. Jwon appeals pro se, arguing that the

trial court abused its discretion in finding there was no violation of Illinois Supreme Court Rule

213(f) (Ill. S. Ct. R. 213(f) (eff. Jan. 1, 2018)).

¶3 On April 27, 2021, petitioner Gianina Martin (Gianina) 2, Jerry’s daughter, filed a petition

for appointment of guardian of a person with a disability. The petition alleged that Jerry was

disabled due to dementia and lacked sufficient understanding or capacity to make or

communicate responsible decisions concerning the care of his person and was unable to manage

his estate or financial affairs. The petition requested that Gianina be appointed guardian of

Jerry’s person and First Midwest Bank (FMB) be appointed guardian of his estate. Jerry had

executed a power of attorney for property and power of attorney for health care (POAs), naming

Gianina for both. The petition indicated that Jerry has four adult children: Gianina, Jwon, Jerry

C. Martin, Jr. (Jerry Jr.), and Jalanda Martin (Jalanda). On April 29, 2021, Gianina filed a

petition for temporary guardian of alleged person with a disability, seeking her appointment as a

temporary guardian of Jerry’s person and FMB as the temporary guardian of his estate. The trial

court granted both temporary appointments.

¶4 In June 2021, Gianina, as temporary guardian of Jerry’s person, filed an emergency

petition to temporarily move Jerry to her home in Atlanta, Georgia. The emergency petition also

1 Because there are multiple members of the Martin family involved, we will refer to respondents and other Martin family members by their first names. 2 Gianina is not a party to this appeal. 2 No. 1-22-0075

alleged that Jerry was a 66-year-old man living alone in Chicago and he has been diagnosed with

dementia, high blood pressure, cirrhosis of the liver, and he suffered from mini strokes. The

petition detailed an encounter with Jwon during a recent visit to Jerry’s house. Gianina stated

that she was “fearful” that Jwon would continue to interfere with any care plan Gianina puts in

place for Jerry. It was disclosed that Jerry had more recently signed new POAs naming Jwon.

FMB also filed an emergency petition to freeze bank accounts and stated that Jwon indicated that

she had possession of Jerry’s bank card and intended to withdraw funds. On June 30, 2021, the

trial court extended the temporary guardianship for Jerry, suspended all POAs executed by Jerry,

and appointed Midwest Care Management Services, Ltd., as the care manager for Jerry’s estate.

The court further ordered Jerry to be reevaluated by his physician regarding his medication

needs, admonished all parties not to discuss the guardianship matters with Jerry, and advised

Jwon that the previous POAs were suspended and she had no authority to act on Jerry’s behalf or

to infringe the temporary guardians’ duties. The court also ordered “Any and all parties who

wish to initiate Discovery shall do so within 28 days, or by July 28, 2021.”

¶5 On June 11, 2021, the trial court appointed Paul S. Franciszkowicz as the guardian ad

litem (GAL) for an alleged disabled person, Jerry C. Martin, Sr. 3 In August 2021, the trial court

granted the GAL leave to file a cross-petition nominating the Cook County Office of the Public

Guardian as guardian and ordered an independent medical evaluation of Jerry. In September

2021, the trial court granted Gianina’s emergency motion for a temporary restraining order

(TRO), which temporarily enjoined Jwon from accessing, transferring, liquidating, or otherwise

having control of the funds in Jerry’s accounts, froze Jerry’s bank accounts, and required the

bank to turn all funds in the designated accounts over to FMB.

3 On December 20, 2022, the GAL, as the appellee, supplemented the record on appeal with the June 11, 2021 order appointing Paul S. Franciszkowicz. 3 No. 1-22-0075

¶6 On October 7, 2021, Gianina, as temporary guardian for Jerry’s person, filed a motion for

a preliminary injunction asking the court to enjoin Jwon from accessing, transferring, liquidating,

or otherwise having control of the funds in four listed accounts and freezing all bank accounts

held under Jwon’s name, either solely or in any other tenancy. The motion alleged that from the

information obtained in an investigation, FMB discovered that Jwon “absconded” money from

Jerry’s bank accounts, which showed balances of $44,521.99 in Jerry’s checking account on

May 17, 2021, and $92,625.29 in Jerry’s savings account on June 9, 2021, which likely included

funds from Jerry’s certificate of deposit that was closed the same day. On October 7, 2021,

Jerry’s checking account had a balance of $4,432.99 and his savings account had a balance of

$9,614.51. On October 21, 2021, FMB, as temporary guardian of Jerry’s estate, filed a petition

for issuance of a citation to recover assets against Jwon and alleging conversion of $129,752.96

of Jerry’s funds. The trial court subsequently granted the petition and issued a citation to recover

assets against Jwon.

¶7 In October 2021, Gianina filed an emergency motion to appoint a special process server

to serve Jwon. FMB also filed a motion for alternative service by publication and/or posting

notice of the citation to recover assets on Jwon. The motion alleged that Gianina had made all

reasonable efforts to accomplish actual service of process on Jwon via a special process server,

but Jwon was evading service. The special process server was unable to effectuate service on

Jwon after three attempts. The motion detailed that Jwon had appeared in court on multiple

occasions, but when asked by the court if she would submit herself to the court’s jurisdiction, she

declined. FMB amended the motion for alternative service in November 2021, to state that the

special process server had attempted to serve Jwon six times. The trial court granted FMB’s

motion for alternative service by publication and/or posting.

4 No. 1-22-0075

¶8 In December 2021, the results of the independent medical evaluation were filed with the

court. Dr. Geoffrey Shaw evaluated Jerry on August 17, 2021. According to the report, Jerry was

a 67-year-old man, residing alone. His sister would care for him on weekdays between 10 a.m.

and 2 p.m., but he did not have a caregiver on the weekends. Dr. Shaw found that Jerry had

severe impairment in his executive functioning. Jerry does not believe he has dementia and

discontinued medication to treat hypertension and high cholesterol. Dr. Shaw opined that Jerry’s

dementia and its associated cognitive deficits will continue to deteriorate. In his opinion, Jerry

required 24-hour supervision. Dr. Shaw concluded that due to the severity of his impaired

executive functioning due to dementia, Jerry required a guardian of the person and estate to make

decisions on his behalf.

¶9 On December 15, 2021, the trial court conducted a videoconference hearing on the

petition to appoint a guardian and the citation to recover assets, which included sworn testimony

from witnesses. Regarding the guardianship matters, Franciszkowicz, as the GAL, recommended

that Jerry needed a guardian of the person and estate. The court acknowledged Dr. Shaw’s report

of his examination of Jerry, with the findings described above. The court observed that the

medical report was timely prepared and “supported a finding of disability as defined under the

Probate Act as well as an analysis of [Jerry’s] physical and mental condition ***.” Based on the

report by the GAL as well as the medical report, the court found by clear and convincing

evidence that because of Jerry’s disability, he lacked sufficient understanding and capacity to

make certain decisions regarding his person and estate. The court then appointed FMB as the

limited guardian of the estate and Gianina as the limited guardian of the person.

¶ 10 The court thereafter proceeded on the citation to recover assets. Jwon appeared at the

videoconference as the citation portion of the hearing began. The court asked her if she was

5 No. 1-22-0075

willing to participate in the proceedings, she responded in the affirmative. The court further

asked if Jwon was subjecting herself to the court’s jurisdiction, Jwon answered, “I don't know

what that means. But if that means that is how I answer or reply to whatever is being brought

towards me, then yes.” The court stated on the record that Jwon had submitted herself to the

court’s jurisdiction. Jwon represented herself in the proceedings and gave an opening statement

denying that she had possession of Jerry’s funds.

¶ 11 The court then heard sworn testimony from Dr. Shaw, Gianina, and Jwon in FMB’s case.

Jwon presented the sworn testimony of Jerry’s sister, Janice Martin, in her case and cross-

examined the witnesses. Since Jwon has not challenged the merits of the trial court’s citation

judgment, we present only the other details necessary for our disposition.

¶ 12 In his testimony, Dr. Shaw detailed his evaluation of Jerry and his medical opinion

contained in his report. The doctor noted that Jerry displayed poor judgment by discontinuing his

medications for hypertension and cholesterol because Jerry did not feel the medications were

helping him. Dr. Shaw also found that Jerry had great difficulty comprehending his physical and

cognitive limitations, which showed that he required considerable help. Dr. Shaw further

testified that based on his deficits, Jerry lacked capacity to enter into contractual agreements,

such as legal documents related to his bank account. Dr. Shaw stated that he had no preference

where Jerry should live or with whom, however he did opine that that Jerry required someone

with him at all times.

¶ 13 In her sworn testimony, upon examination, Jwon stated that Jerry’s money was not in a

bank, he physically had possession of it. She testified that she gave Jerry $129,000 cash in a

sealed bag. FMB’s attorney noted that FMB was able to recover about $14,000 of that amount,

and asked if Jwon had given Jerry $115,000 in cash. She responded that she was not sure of the

6 No. 1-22-0075

dollar amount, but she gave him whatever was taken out of the bank accounts. She did not know

where that money was at the time of the hearing. She admitted that she told a doctor at a

neuropsych evaluation in May 2021, she had taken over Jerry’s finances because Jerry had been

overpaying some bills and had been forgetful with his bills but Jwon testified she had no

personal concern over Jerry’s ability to make decisions regarding his finances.

¶ 14 Following the hearing, the court entered an order finding that: (1) Jwon has submitted

herself to the court’s jurisdiction; (2) since March 2020, Jerry has been unable to make or

communicate reasonable personal or financial decisions, including bank documents to add a joint

tenant, open a bank account, or remove himself from a bank account; (3) Jwon converted

$115,705.35 of Jerry’s funds; (4) Gianina established by clear and convincing evidence that a

fiduciary relationship existed between Jwon and Jerry at the time of the conversion; and (5) Jwon

breached said fiduciary relationship by converting Jerry’s funds and committed a fraud on Jerry.

The court entered judgment against Jwon in the amount of $115,705.35. The court also granted

the petition for appointment of guardian of a person with a disability in a separate agreed order.

¶ 15 This appeal followed. Jwon, acting pro se, filed a timely notice of appeal on January 13,

2022, listing the judgment from December 15, 2021, in compliance with Illinois Supreme Court

Rule 303 (eff. Jan. 1, 2015). Accordingly, this court has jurisdiction of this appeal under Illinois

Supreme Court Rule 301 (eff. Feb. 1, 1994).

¶ 16 Jwon argues on appeal that the trial court abused its discretion in finding no violation of

Supreme Court Rule 213(f) (Ill. S. Ct. R. 213(f) (Jan. 1, 2018)). However, in her argument

section, she lists numerous separate claims unrelated to Rule 213(f), including all of the

following: the trial court failed to schedule a discovery deposition, the court did not provide

Jwon sufficient time to prepare for the hearing, the GAL was not ordered by the court and did

7 No. 1-22-0075

not act in Jerry’s best interest, a witness was added the day of the hearing, the court did not have

jurisdiction over Jwon until the day of the hearing, the court granted several orders against Jwon

without notice or jurisdiction, Gianina’s attorney was allowed to give an improper opening

statement, and Jerry’s attorney was ineffective. Notably, none of these listed issues has any

citation to authority or any reasoned argument. Rather, Jwon simply listed each claim after the

other as her argument.

¶ 17 We observe that pro se litigants, such as Jwon, are not entitled to more lenient treatment

than attorneys. “In Illinois, parties choosing to represent themselves without a lawyer must

comply with the same rules and are held to the same standards as licensed attorneys.”

Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 78. “Pro se litigants are presumed to have

full knowledge of applicable court rules and procedures.” Steinbrecher v. Steinbrecher, 197 Ill.

2d 514, 528 (2001).

¶ 18 In its response, the GAL maintains that Jwon’s Rule 213(f) claim has been forfeited

because she failed to raise this argument in the trial court. We agree. It is well settled that a party

who does not raise an issue in the trial court forfeits that issue and may not raise it for the first

time on appeal. 1010 Lake Shore Association v. Deutsche Bank National Trust Co., 2015 IL

118372, ¶ 14. The purpose of the “forfeiture rules is to encourage parties to raise issues in the

trial court, thus ensuring both that the trial court is given an opportunity to correct any errors

prior to appeal and that a party does not obtain a reversal through his or her own inaction.” Id.

Jwon never raised any argument or objection related to Rule 213(f) before the trial court and

thus, it has been forfeited.

¶ 19 Forfeiture aside, Rule 213(f) is not applicable to these guardianship proceedings. Rule

213(f) provides that upon a written interrogatory, a party must furnish the identities and

8 No. 1-22-0075

addresses of witnesses who will testify at trial. Ill. S. Ct. R. 213(f) (eff. Jan. 1, 2018). Jwon refers

to case law describing Rule 213(f) as providing a degree of certainty and predictability in the

trial process and prevent trial by ambush. Copeland v. Stebco Products Corp., 316 Ill. App. 3d

932, 946 (2000). While this is an accurate statement of law, no written interrogatories appear in

the record for either party. The record before us shows that Jwon failed to propound any

discovery in this case, including any written interrogatories. The witnesses who testified at the

hearing were Dr. Shaw, Gianina, Jwon, and Janice Martin, as Jwon’s witness. Jwon does not

assert that any of these witnesses appeared by surprise or that she served a written interrogatory

during discovery that was not answered. Since no written interrogatories regarding witnesses

were submitted in this case, Rule 213(f) does not apply, and this argument is without merit.

¶ 20 The remaining claims asserted by Jwon were raised in single sentences and without

citation to the record or to any relevant authority. Illinois Supreme Court Rule 341(h)(7) requires

an appellant to include in its brief an “[a]rgument, 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.” Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008). Mere contentions, without argument or

citation to authority, do not merit consideration on appeal. Palm v. 2800 Lake Shore Drive

Condominium Association, 401 Ill. App. 3d 868, 881 (2010). The rule is consistent with the

principle that “[a] reviewing court is entitled to have issues clearly defined with pertinent

authority cited and cohesive arguments presented ***, and it is not a repository into which an

appellant may foist the burden of argument and research.” Obert v. Saville, 253 Ill. App. 3d 677,

682 (1993). The above cited procedural rules concerning the content and format of appellate

briefs are mandatory. Voris v. Voris, 2011 IL App (1st) 103814, ¶ 8.

9 No. 1-22-0075

¶ 21 It is not this court’s role to create an appellate argument, research the issue, and then

apply the relevant authority to the facts in order to determine whether the claims have merit.

Undertaking these tasks would not only shift Jwon’s burden to this court, but also deprive the

other parties of a meaningful opportunity to respond to the theory. While Jwon addresses some

of these arguments with brief discussion and limited authority in her reply brief, she cannot avoid

her forfeiture of these claims. Under Rule 341(h)(7), “[p]oints not argued are forfeited and shall

not be raised in the reply brief.” Ill. S. Ct. R. 341(h)(7). For these reasons, Jwon’s claims fall

well short of Rule 341 and has been forfeited.

¶ 22 Further, none of these additional claims were raised before the trial court. As previously

stated, a party who does not raise an issue in the trial court forfeits that issue and may not raise it

for the first time on appeal. 1010 Lake Shore Association, 2015 IL 118372, ¶ 14. Since Jwon did

not preserve these claims before the trial court, they have been forfeited under this basis as well.

¶ 23 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook

County.

¶ 24 Affirmed.