SIXTH DIVISION
May 18, 2007
No. 1-06-2115
In re ESTATE OF MARY ANN WILSON, a ) Appeal from the
Disabled Person ) Circuit Court
) of Cook County.
)
(Arnetta Williams, Guardian of the )
Estate of Mary Ann Wilson )
)
Petitioner-Appellee, ) No. 06 P 3549
)
v. )
)
Karen A. Bailey, ) The Honorable
) Maureen E. Connors,
Respondent-Appellant). ) Judge Presiding.
JUSTICE O'MALLEY delivered the opinion of the court:
Petitioner Arnetta Williams petitioned the circuit court of
Cook County to appoint her temporary guardian of her cousin, Mary
Ann Wilson. The circuit court granted her motion and named her
temporary guardian of Wilson and her estate. Respondent Karen
Bailey filed a preliminary injunction seeking to enjoin
petitioner from exercising any authority pursuant to the circuit
court’s grant of temporary guardianship. The circuit court
denied respondent’s motion for a preliminary injunction and
respondent appealed, claiming that the circuit court lacked
subject matter jurisdiction for failure to meet the requirements
of section 2-10 of the Illinois Power of Attorney Act (the Power
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of Attorney Act) (755 ILCS 45/2-10 (West 2004)) and section 11a-
18(e) of the Probate Act of 1975 (the Probate Act) (755 ILCS
5/11a-18(e) (West 2004)). For the reasons that follow, we affirm
the judgment of the circuit court.
BACKGROUND
Mary Ann Wilson was born on April 16, 1920, and lived at
10963 South Sangamon Street in Chicago, Illinois, on May 3, 2006.
On that same day, Wilson was discovered in her home "totally
abandoned, in feces, confused, [unable] to walk or talk, and had
lost a lot of weight." Protective services were called and
Wilson was admitted to St. Elizabeth Hospital, where a
psychiatric evaluation revealed that she was "oriented only to
name, [unable] to give her medical history, [and had] impaired
concentration." On May 12, 2006, Isaac Heard, Sr., Wilson's
brother from North Carolina, filed petitions seeking the
appointment of Arnetta Williams, Wilson's cousin, as guardian for
Wilson and one seeking to appoint Williams as temporary
guardian.1 The circuit court appointed Sandra Thiel as guardian
ad litem (GAL) for Wilson and directed her to furnish the court
with a written report on May 15, 2006, when it would rule on the
petition for temporary guardianship pursuant to section 11a-4 of
1
The record shows that Heard withdrew his petition after
initiating the action in the circuit court from North Carolina
and Williams ultimately became the petitioner in this case.
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the Probate Act.
On May 15, 2006, the GAL filed her written report relative
to her meeting with Wilson and appeared before the court for a
hearing, where Williams was also present. The GAL presented
serious concerns to the circuit court regarding Wilson's physical
and financial condition. The GAL also discovered that Karen A.
Bailey was Wilson's agent under several powers of attorney for
her property, real estate and healthcare issued in January 2004.
Williams and the GAL presented information to the court that bank
accounts containing over $180,000 had been withdrawn by Bailey
pursuant to her authority under the power of attorney. Due to
the deplorable circumstances under which Wilson was discovered,
as well as her health and mental issues, the GAL strongly urged
the circuit court to temporarily suspend the powers of attorney
granted to Bailey.
Based on the preliminary information and the GAL's
recommendation, the circuit court temporarily suspended Bailey's
authority under the powers of attorney naming her Wilson's agent
and appointed Williams as temporary guardian until a hearing on
the petition for plenary guardianship could be heard. The court
directed Williams through the order appointing her temporary
guardian to: (1) arrange for routine medical care; (2) place
Wilson in the South Shore Nursing and Rehabilitation Center; (3)
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investigate funds and mail belonging to Wilson; (4) investigate
the powers of attorney; and (5) have access to all of Wilson's
medical records.
On June 7, 2006, Bailey filed an emergency motion to vacate
the circuit court's order appointing Williams as temporary
guardian and Sandra Thiel as GAL; issue a temporary restraining
order (TRO) against Williams and the GAL from any further action
concerning Wilson; and "issue a mandatory injunction for Arnetta
Williams to reveal the whereabouts of $200,000 and account for
the same." On June 8, the circuit court heard arguments in a
hearing on Bailey's emergency motion. During the hearing, David
Service, Wilson's stepson and Bailey's husband, appeared on June
8, 2006, and filed a petition for guardianship which he withdrew,
leaving Bailey as the only party seeking vacation of the circuit
court's May 15 order. The following colloquy occurred relative
to what Williams had learned since the May 15, 2006 order had
been issued:
"MS. WILLIAMS: I discovered some very disturbing things.
THE COURT: For Example?
A. For example, Ms. Wilson had a USB account that had
approximately $187,000 in it,
Q. Okay.
A. That had been withdrawn by Karen Bailey.
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Q. Do you know when?
A. Yes August [2005] it was $25,400.
Q. Say again?
A. $25,400 was the initial withdrawal. That was into
Credit Union One, credit union, and I believe that's Ms.
Bailey's personal credit union.
Q. So that was $25,000 of the $187[,000]?
A. Yes and then the balance of that was withdrawn in
November '05 last year.
Q. Do you know what happened to the proceeds?
A. That money was deposited into Mary Wilson's account at
LaSalle Bank. Since that time the money has been pretty
much withdrawn. That account has been as high as a hundred
and - - well, I don't know.
Q. Okay.
A. And that's gone. It's down to about $3,000 now.
Q. Three thousand?
A. Yes, it's about according [sic] to my preliminary
calculations.
Q. Okay. So Mr. Brady [sic], what brings you to court
today, sir?
MR. BRADEN [Attorney for Respondent Bailey]: The whole
purpose of this motion, I'm sure you read it, is to vacate
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all orders here. The reason is, our position is that the
provisions of the statute has not been followed here, that
Karen Bailey has the power of attorney. ***
And it's my understanding from reading the statute that
when there's a power of attorney that the Court does not
have jurisdiction to proceed on entering guardianship orders
and also unless the Court proceeds in accordance with the
provisions in the Power of Attorney Act, under that section
of the relationship of the agent and the Court that a
separate hearing be conducted to determine whether the agent
had acted in the best interest of the ward, and that has not
been done. In addition, Karen Bailey has not been notified
of any of these proceedings and it's my understanding that
she should have been. She should have been notified."
Q. Did I strike - -
MR. BRADEN: This was her first time.
THE COURT: Did I suspend the powers of the POA?
MS. WILLIAMS: Yes because it's suspicious.
MR. BRADEN: Today she's been served and she is aware of
everything that has happened, and that's my point, judge,
that's my point.
THE COURT: Well, counsel, let me ask you. Can I get our
[sic] client under oath and have her answer questions as to
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what happened to the all this money? Can we get that done?
MR. BRADEN: Look, Judge, if we had a hearing, if we had a
hearing - -
THE COURT: I would like to know now because I'm
concerned. These are serious allegations.
MR. BRADEN: She was acting in accordance with her power
of attorney to do that, and if you want to put her under
oath, of course, she filed a verified petition, but she's
prepared to - -.
THE COURT: It doesn't go into the particulars of the
assets, though.
* * *
THE COURT: When did you first start acting as Power of
Attorney for property, taking care of the assets of Mary
Wilson?
KAREN BAILEY: January of 2004. Maybe it was February,
I'm not sure.
Q. What was the value of her estate at that time, total
value?
A. Probably - - I'm not sure, total value may be two
hundred and something, I'm not sure.
Q. Well, you were the power of attorney. What was the
value on the date you took over? You don't know?
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A. No, Your Honor.
Q. Any idea?
A. 250,000, I'm not sure.
* * *
Q. Let's go on to something else. Was there money
withdrawn from her account, this USB one?
A. Yes, it was.
Q. What happened to the $25,400?
A. I withdrew it because under her, her and her husband,
he told me to withdraw.
Q. He?
A. It's both of their account. When he got married, he
stated to us that he helped her with that money.
Q. Wait. The account had her name on it?
A. Exactly, her and him.
Q. So it's her assets. And you're her power of attorney
and you're taking orders from him?
A. Her husband. Her and him stated to me that they
wanted it out of the bank. I can only go by what they was
telling me.
Q. Well, no, you're supposed to be talking to your
principal who is she, not he.
* * *
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Q. So you withdrew how much?
A. It was 25 first because they sent a letter, a thing
saying that she could get 25 or whatever. She said she
wanted her money.
Q. So what happened?
A. I put it in a box.
* * *
Q. I'm just trying to get a picture. What happened? You
took $25,000 cash. And it was in what kind of box?
A. It was a lock box from a safe-deposit."
Bailey further testified under oath that she eventually
withdrew over $150,000 in cash from the USB account and added it
to an additional $50,000 in cash in a box that was stored in
Wilson's closet. Bailey also testified that she and her husband,
Wilson's stepson, paid for an addition to her house with Wilson's
money so that Wilson and her husband could live with her and her
husband. Bailey produced no receipts for the addition to her
house and testified that the contractors only accepted cash
payment. Over $200,000 in cash that was stored in Wilson's
closet in a box disappeared. Williams submitted cancelled checks
to the court drawn on Wilson's account and made payable to and
endorsed by Bailey, totaling over $100,000. At the conclusion of
the proceedings on June 8, 2006, the circuit court denied
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Bailey's motion for temporary restraining order and ordered her
to file an accounting by June 27, 2006.
On June 27, 2006, Bailey failed to file an accounting.
Instead, she filed a motion to amend her previous emergency
motions citing "a revelation of additional law and facts that are
relevant in assisting the court in rendering a just and correct
ruling on the motion." The court heard arguments on June 29,
2006, on Bailey's amended emergency motion. Bailey filed a
supplemental amended motion to vacate the May 15, 2006 order on
June 30, 2006. On July 5, 2006, the circuit court denied
Bailey's amended and supplemental motions. Bailey timely
appealed the circuit court's denial of her motions for a TRO and
preliminary injunction pursuant to Illinois Supreme Court Rule
307(a) (188 Ill. 2d R. 307(a)).
ANALYSIS
I. SUBJECT MATTER JURISDICTION
Bailey raises only one issue before this court, to wit,
subject matter jurisdiction of the circuit court in the instant
case. Bailey specifically argues that the circuit court acted
beyond its power by temporarily suspending Bailey’s power of
attorney and appointing Williams temporary guardian of Wilson and
the court failed to comply with section 11a-18(e) of the Probate
Act, which confers jurisdiction on the circuit court to hear the
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matter brought by Williams. We disagree and find that this case
raises a question of Illinois subject matter jurisdiction
jurisprudence that merits revisiting Illinois law on the issue.
Bailey cites to In re Hatsuye T., 293 Ill. App. 3d 1046
(1997), for the proposition that the circuit court's failure to
comply with the requirements of various sections the Probate Act
and the Power of Attorney Act deprives the circuit court of
subject matter jurisdiction. Bailey characterizes the
requirements of article 11a of the Probate Act and section 2-10
of the Power of Attorney Act, based on In re Hatsuye T., as
conditions precedent to a court's exercise of jurisdiction. In
re Hatsuye T., 293 Ill. App. 3d at 1053. The issue concerning
the authority of a circuit court to properly exercise subject
matter jurisdiction has been explained in detail by our supreme
court in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A.,
Inc., 199 Ill. 2d 325 (2002), and in our view, conflicts with our
decision in In re Hatsuye T., 293 Ill. App. 3d at 1053.
In Belleville Toyota, our supreme court's intent was to
clarify the question of subject matter jurisdiction as it relates
to article VI, §9, of the Illinois Constitution (Ill. Const.
1970, art. VI, §9)) which has been the source of significant
confusion for courts and litigants. Belleville Toyota, 199 Ill.
2d at 338. In Belleville Toyota, our supreme court acknowledged
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that certain cases, including Illinois Supreme Court cases, had
apparently misapplied article VI, section 9 in determining
whether the circuit court had properly exercised subject matter
jurisdiction in a particular case. Belleville Toyota, 199 Ill.
2d at 337-38.
The court in Belleville Toyota, after a lengthy discussion
of the 1964 amendments to the Illinois Constitution that changed
article VI, section 9, stated that " 'subject matter
jurisdiction' refers to the power of a court to hear and
determine cases of the general class to which the proceeding in
question belongs. People v. Western Tire Auto Stores, Inc., 32
Ill. 2d 527, 530 (1965); Van Dam v. Van Dam, 21 Ill. 2d 212, 216
(1961); 14 Ill. L. & Prac. Courts §16, at 183 (1968); Faris v.
Faris, 35 Ill. 2d 305, 309 (1966); Restatement (Second) of
Judgments §11 (1982). With the exception of the circuit court's
power to review administrative action, which is conferred by
statute, a circuit court's subject matter jurisdiction is
conferred entirely by our state constitution. Ill. Const. 1970,
art. VI, §9; In re Lawrence M., 172 Ill. 2d 523, 529 (1996); In
re M.M., 156 Ill. 2d 53, 65 (1993)." Belleville Toyota, 199 Ill.
2d at 334.
"Under section 9 of article VI, *** jurisdiction extends to
all 'justiciable matters.' Ill. Const. 1970, art. VI, §9. Thus,
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in order to invoke the subject matter jurisdiction of the circuit
court, a plaintiff's case, as framed by the complaint or
petition, must present a justiciable matter." Belleville Toyota,
199 Ill. 2d at 334. See also In re Antwan L., 368 Ill. App. 3d
1119, 1128 (2006). Although not defined by the constitution,
section 9 of article VI confers subject matter jurisdiction over
all "justiciable matters," which the Belleville Toyota court
referred to as "controvers[ies] appropriate for review by the
court, in that [they are] definite and concrete, as opposed to
hypothetical or moot, touching upon the legal relations of
parties having adverse legal interests." Belleville Toyota, 199
Ill. 2d at 335; see also In re Antwan L., 368 Ill. App. 3d at
1128.
Following the amendments to our constitution, which became
effective in 1964, the legislature's role was significantly
limited relative to defining the jurisdiction of the circuit
court. Belleville Toyota, 199 Ill. 2d at 336. Effective January
1, 1964, an amendment to article VI replaced limited
jurisdiction: "Circuit Court[s] shall have unlimited original
jurisdiction of all justiciable matters." Ill. Const. 1870, art.
VI, §9 (amended 1964); accord Ill. Const. 1970, art. VI, §9
("Circuit Courts shall have original jurisdiction of all
justiciable matters except when the Supreme Court has original
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and exclusive jurisdiction"). Prior to the 1964 amendments, the
Illinois Constitution provided: "The circuit courts shall have
original jurisdiction of all causes in law and equity, and such
appellate jurisdiction as is or may be provided by law, ***."
Ill. Const. 1870, art. VI, §12. The 1964 amendment created a
single integrated trial court vested with jurisdiction to
adjudicate all controversies. Zamarron v. Pucinski, 282 Ill.
App. 3d 354, 360 (1996).
This limited role, as described by the Belleville Toyota
court, now stands in "stark contrast to the significant role
previously exercised by the legislature under our former
constitution. See [In re Estate of] Mears, 110 Ill. App. 3d
[1133], 1134-38 [(1982)] (tracing the development of jurisdiction
from a purely legislative concept embodied in the 1818
constitution, to the concept now in force under the 1970
constitution)." Belleville Toyota, 119 Ill. 2d at 336. As the
Belleville Toyota court noted, "[u]nder our former constitution,
adopted in 1870, the circuit court enjoyed 'original jurisdiction
of all causes in law and equity.' Ill. Const. 1870, art. VI,
§12." Belleville Toyota 199 Ill. 2d at 336. Historically
speaking, "[t]he [circuit] court's jurisdiction over special
statutory proceedings, [such as] matters which had no roots at
common law or in equity, derived from the legislature. See
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People v. Graw, 363 Ill. 205, 208 (1936) (circuit court's
constitutionally derived jurisdiction did not apply to special
statutory proceedings); Selden v. Illinois Trust & Savings Bank,
239 Ill. 67, 74 (1909) (court of general jurisdiction may have a
special statutory jurisdiction conferred upon it). Thus, in
cases involving purely statutory causes of action, our supreme
court, in pre-1964 cases held that unless the statutory
requirements were satisfied, a court lacked jurisdiction to grant
the relief requested. See e.g. Martin v. Schillo, 389 Ill. 607,
609-10 (1945); People ex rel. Kilduff v. Brewer, 328 Ill. 472,
479-84 (1927); Sharp v. Sharp, 213 Ill. 332, 334-36 (1904)."
Belleville Toyota, 199 Ill. 2d at 336;
In 1964, however, amendments to the judicial article of the
1870 constitution became effective. These amendments radically
changed the legislature's role in determining the subject matter
jurisdiction of the circuit court. Belleville Toyota, 199 Ill.
2d at 337, citing: In re M.M., 156 Ill. 2d 53, 74 (1993) (Miller,
C.J., concurring, joined by Bilandic, J.) (the sources and scope
of the circuit court's jurisdiction changed "dramatically" with
the 1964 amendments to the judicial article); Mears, 110 Ill.
App. 3d at 1137 (a "revolution" was wrought by the 1964
amendments to the juridical article); Ill. Const. 1870, art. VI,
§9 (amended 1964). Our supreme court has clearly indicated that,
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as a result of the 1964 amendments, "the legislature's power to
define the circuit court's jurisdiction was expressly limited to
the area of administrative review. The current Illinois
constitution, adopted in 1970, retained this limitation. Ill.
Const. 1970, art. VI, §9." Belleville Toyota, 199 Ill. 2d at
337.
In light of the 1964 amendments, the precedential value of
case law which examined a court's jurisdiction according to the
pre-1964 judicial system is necessarily limited to the
constitutional context in which those cases arose. Belleville
Toyota, 199 Ill. 2d at 337, citing: In re M.M., 156 Ill. 2d at 74
(Miller, C.J., concurring, joined by Bilandic, J.) ("terminology
employed in earlier [pre-1964] decisions must be viewed in the
constitutional context in which those cases were decided");
People v. Valdez, 79 Ill. 2d 74, 84-85 (1980) (rationale of cases
decided under 1870 constitution not applicable in determining
whether circuit court had jurisdiction under 1970 constitution).
Nonetheless, citation to pre-1964 rules of law governing subject
matter jurisdiction continues even though the Belleville court
held that those cases "continue to be cited by Illinois courts,
without qualification, creating confusion and imprecision in the
case law." Belleville 199 Ill. 2d at 338.
In our view, pre-1964 jurisdictional jurisprudence was the
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basis for this court’s holding in In re Hatsuye T., where we held
that a circuit court’s order was void for want of subject matter
jurisdiction when it failed to make the requisite findings
enumerated in section 2-10 of the Power of attorney Act and
article 11a of the Probate Act. In re Hatsuye T., 293 Ill. App.
3d at 1053. This court’s ruling in In re Hatsuye T., however,
was handed down without the benefit of Belleville Toyota and
follows authority that was applicable and authoritative under the
1870 Constitution, not the post-1964 amendments to the 1870
constitution or the 1970 constitution. Belleville Toyota
specifically addressed the argument Bailey raises here and
rejected it, stating:
"A rule of law may have been appropriate under the pre-1964
judicial system when the court's jurisdiction to hear and
determine purely statutory causes of action was conferred
and limited by the legislature, and the failure to conform
strictly to the statutory requirements prevented the court
from acquiring subject matter jurisdiction. To the extent
that this proposition has any relevance today, it is
confined to the area of administrative review -- the only
area in which the legislature still determines the extent of
the circuit court's jurisdiction." Belleville Toyota, 199
Ill. 2d at 338.
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Article VI of our constitution and Belleville Toyota are
clear that, except in the area of administrative review, the
jurisdiction of the circuit court flows from the constitution.
Ill. Const. 1970, art. VI, §9; Belleville Toyota, 199 Ill. 2d at
335 (holding that the General Assembly has no power to enact
legislation that would contravene article VI). See also Tully v.
Edgar, 171 Ill. 2d 297, 308 (1996). Most importantly though,
Williams presented a "justiciable matter" to the circuit court in
her complaint that was definite and concrete, and not
hypothetical or moot, touching upon the legal relations of
parties having adverse legal interests. Consequently, we refuse
to extend In re Hatsuye T. to the instant matter in light of the
supreme court’s clarification of the scope of circuit court’s
exercise of subject matter jurisdiction in Illinois.
II. CIRCUIT COURT'S DENIAL OF BAILEY'S MOTIONS
Although subject matter jurisdiction is derived from the
constitution and not the Probate Act or Power of Attorney Act in
this case, this is not to say that the circuit court may act in
derogation of statutes enacted by the legislature. In re M.M.,
156 Ill. 2d at 65 (rejecting such logic as unsound). That being
said, the only issue here that Bailey could properly raise, but
did not, is whether the circuit court correctly denied her
motions for a TRO and preliminary injunction.
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"A temporary restraining order issued with notice and a
preliminary injunction issued with notice are the same type of
relief and, whether referred to under either term, require the
same elements of proof." Jacob v. C&M Video Inc., 248 Ill. App.
3d 654, 664 (1993), citing Kable Printing Co. v. Mount Morris
Bookbinders Union Local 65-B, 63 Ill. 2d 514, 524 (1976);
Houseknecht v. Zagel, 112 Ill. App. 3d 284, 291 (1983). "The
party seeking a preliminary injunction or temporary restraining
order must establish that it has a protectible right, that it
will suffer irreparable harm if injunctive relief is not granted,
that its remedy at law is inadequate, and that there is a
likelihood of success on the merits." Jacob, 248 Ill. App. 3d at
664; City of Waukegan v. Illinois Environmental Protection
Agency, 339 Ill. App. 3d 963, 922 (2003). The party seeking
relief is not required to make out a case which would entitle him
to relief on the merits; rather, he need only show that he raises
a "fair question" about the existence of his right and that the
court should preserve the status quo until the case can be
decided on the merits. Jacob, 248 Ill. App. 3d at 664, citing
Buzz Barton & Associates, Inc. v. Giannone, 108 Ill. 2d 373, 382
(1985). In evaluating these factors, we are mindful that the
scope of review in an interlocutory appeal pursuant to Illinois
Supreme Court Rule 307(a) (188 Ill. 2d R. 307(a)) is normally
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limited to determining whether the trial court abused its
discretion in granting or refusing the requested interlocutory
relief. Jacob, 248 Ill. App. 3d at 664, citing Zurich Insurance
Co. v. Raymark Industries, Inc., 213 Ill. App. 3d 591, 594
(1991).
Here, however, Bailey does not argue that the circuit
court’s denial of her motions for a TRO and preliminary
injunction were an abuse of discretion. Bailey does not contend
that she has a protectible right, that she will suffer
irreparable harm if injunctive relief is not granted, that her
remedy at law is inadequate, or that there is a likelihood of
success on the merits. She only argues that the circuit court
was without jurisdiction to suspend the powers of attorney and
appoint a temporary guardian and GAL, an issue that is separate
and distinct from the denial of Bailey’s motion for a TRO and
preliminary injunction. As a result, Bailey has failed to
convince this court that she was entitled to the relief sought in
the circuit court or that the circuit court erred in denying such
relief. Furthermore, the record reveals that when the circuit
court pressed Bailey for the irreparable harm that would occur if
the relief she sought were not granted, Bailey could only
reference the money that was missing. We agree with the circuit
court’s ruling that granting Bailey’s motions would not bring the
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money back and that the "irreparable harm" with respect to the
missing funds had already occurred. Moreover, based on the
evidence in the record and Wilson's condition when discovered,
there does not appear to be a likelihood that Bailey would be
successful in her efforts to have the powers of attorney
reinstated because the status quo, as it related to Wilson prior
to the circuit court's intervention, was plainly appalling.
III. CONCLUSION
For the foregoing reasons, we find that the circuit court
properly exercised subject matter jurisdiction because Williams
brought a justiciable matter before the circuit court by
initiating an action under the Probate and Power of Attorney Acts
after finding her family member in deplorable conditions. We
further hold that the circuit court correctly denied Bailey's
motions for a TRO and preliminary injunction based on the record
because she did not and could not articulate the required
elements for such relief. Accordingly, we affirm the judgment of
the circuit court.
Affirmed.
FITZGERALD SMITH, P.J., and McNULTY, J., concur.
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