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Appellate Court Date: 2017.03.31
09:45:05 -05'00'
In re Estate of Kirk, 2017 IL App (4th) 160416
Appellate Court In re ESTATE OF ILENE C. KIRK, an Alleged Disabled Person,
Caption PHILIP E. DAWSON, Petitioner-Appellant, v. JOHN A. DAWSON,
Respondent-Appellee.
District & No. Fourth District
Docket No. 4-16-0416
Filed February 28, 2017
Decision Under Appeal from the Circuit Court of Champaign County, No. 14-P-300;
Review the Hon. Holly F. Clemons, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded.
Counsel on Nicholas N. Tinsman (argued), of Barnhart, Tinsman & Lane, Ltd., of
Appeal Canton, for appellant.
Donald R. Parkinson, of Parkinson Law Office, of Urbana, and John
T. Phipps, of John T. Phipps Law Offices, P.C., of Champaign, for
appellee.
John B. Hensley, of Hensley Law Office, of Champaign, guardian
ad litem.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Steigmann and Appleton concurred in the judgment and
opinion.
OPINION
¶1 Petitioner, Philip E. Dawson, petitioned the trial court to appoint him the guardian of his
elderly mother, Ilene C. Kirk, and her estate, alleging she was a disabled person and unable to
care for herself or her property. The court dismissed Philip’s petition, and he appeals. We
affirm in part, reverse in part, and remand for further proceedings.
¶2 I. BACKGROUND
¶3 On November 4, 2014, Philip filed the guardianship petition at issue. At the time, Ilene,
who was born on July 18, 1920, was 94 years old. The record reflects Ilene lived in
Champaign, Illinois, and had two living sons, Philip and respondent, John A. Dawson. Philip
resided in Jerome, Idaho, while John also resided in Champaign.
¶4 In his petition, Philip alleged that he was Ilene’s designated agent under health-care and
property powers of attorney, which had been executed in April 2012. He asserted Ilene
currently resided with John and, because she was unlicensed and incapable of driving, was
dependent upon John for transportation. Philip further alleged that, due to her age, Ilene’s
mental abilities had “reduced dramatically.” According to Philip, Ilene (1) was often unable to
remember or recall the identity of immediate family members, including Philip; (2) was often
confused and disoriented as to time and place; (3) had a “hard time” with both short-term and
long-term memory; (4) was unable to make day-to-day decisions for her own medical care, as
evidenced by her refusal to go to the doctor or cancellation of doctor’s appointments scheduled
by Philip; and (5) was unable to attend to her day-to-day financial affairs, potentially
subjecting her “to financial exploitation if a guardian of her estate [was] not appointed.” Philip
asserted he was concerned that Ilene had already been exploited financially.
¶5 Philip further alleged that he had made more than one appointment for Ilene to visit her
primary care physician so that her physical and mental health could be assessed. However, he
maintained she had “not been delivered” to her physician’s office, and Philip believed John
had cancelled Ilene’s appointments. Philip also alleged he made numerous attempts to have
meals delivered to Ilene by “meals on wheels” but, each time a delivery was attempted, it was
refused by John. Philip maintained he was fearful for his mother’s mental and physical health
and believed she was unhealthy due to poor nutrition and improper medical care. Additionally,
Philip alleged he was “fearful that assets of the Kirk Family [Revocable Living] Trust [had]
been exploited contrary to the provisions of the Kirk Family Trust documents.”
¶6 Philip asserted that, pursuant to section 11a-9 of the Probate Act of 1975 (Probate Act)
(755 ILCS 5/11a-9 (West 2012)), it was necessary for the trial court to order appropriate
evaluations to be performed on Ilene and that a report be prepared and filed with the court.
Additionally, he stated it was necessary that a guardian of the person and estate be appointed
for her because she was unable to care for herself and her property. Philip asserted he was
qualified and willing to act as guardian and asked that the court appoint him.
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¶7 The same day he filed his guardianship petition, Philip filed motions for the appointment of
a temporary guardian for Ilene and for the appointment of a guardian ad litem (GAL).
¶8 On December 15, 2014, Ilene filed an objection to Philip’s petition, asking that it be
“dismissed and stricken.” She asserted she had income to support herself and desired to remain
at her current residence. Ilene denied that Philip was her power of attorney. Rather, she stated
John was her power of attorney “for both legal and medical matters.” The objection further
stated as follows:
“Ilene is able to express herself and can make her day to day decisions, and has been
with her Carle [Physicians Group] doctors addressing any needed medical care. Her
son, John ***, has been assisting her and he is her choice for being her representative.
She has seen her doctor as needed. She is able to discuss and decide her financial affairs
and asks questions of her chosen representative. She does not want Philip *** making
any decisions or taking her property. She rejected the food that Philip ordered for her
and he knew she didn’t like it. She eats food that she wants, and her physical health is
good for a woman of her age.”
¶9 On April 14, 2015, John filed a response to Philip’s petition. He maintained that documents
identifying Philip as Ilene’s health-care and property power of attorney were revoked and, on
November 25, 2014, replaced with documents naming John as Ilene’s agent for health-care
purposes and property transactions. Further, John denied allegations that he lived with Ilene,
stating that although he was “at her home most of the time he ha[d] his own residence as
needed.” Additionally, he denied Philip’s allegations that Ilene’s mental abilities were
“reduced” due to her age and asserted Ilene “may have been subject to financial exploitation
by” Philip during the time he acted as Ilene’s agent. Attached to John’s response were
documents executed on November 25, 2014, which identified him as Ilene’s agent under
health-care and property powers of attorney.
¶ 10 Also on April 14, 2015, Ilene filed an exhibit in support of her objection to Philip’s
petition. The exhibit contained a letter authored by Dr. Nasreen Syed with the Carle Physician
Group. The letter, dated April 9, 2015, addressed “To Whom it May Concern,” stated as
follows: “Mrs. Ilene Kirk is my patient. She is able to communicate and express herself. She is
able to make her own day to day decisions. She is oriented to time and place and person and
was last seen in our office on [March 4, 2015].”
¶ 11 On April 24, 2015, the trial court conducted a hearing in the matter. The same day, it
entered an order denying Ilene’s objection, appointing attorney John Hensley as Ilene’s GAL,
and ordering Ilene to undergo an evaluation by a physician specializing in evaluating the
elderly for mental deficiencies. Philip selected Dr. Barry Riskin, a neurologist with Christie
Clinic, to perform the evaluation. On May 4, 2015, Ilene filed an objection to Dr. Riskin, and
on June 8, 2015, Philip filed a motion to strike and dismiss her objection. On September 16,
2015, the trial court granted Philip’s motion to strike and dismiss.
¶ 12 On October 15, 2015, Dr. Riskin examined Ilene and, on November 23, 2015, his report
was filed with the trial court. In his report, Dr. Riskin stated that “[b]ased upon [his]
examination, the nature and type of [Ilene’s] disability [was] not known to [him].” Regarding
Ilene’s ability to function independently, he noted she admitted falling in her home and
believed it would be best for her to live with her son. Regarding her ability to make decisions
for herself, Dr. Riskin stated the information available to him was incomplete. He determined
Ilene “demonstrated diminished cognitive performance on questioning and testing” but stated
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he could not say if she was able to make decisions for herself. Dr. Riskin’s report further stated
as follows:
“The patient reportedly has an eighth grade education. She did reportedly receive
training as a hairdresser later in life. I know little else about her ability over the years to
manage her estate. She was unable to tell me much about this. Her adaptive behavior
appears to be appropriate given the constraints of age and physical condition. Her
social skills appear to be normal for her age.
I do not have an opinion as to the need for, type, and scope of guardianship
recommended nor do I have a recommendation regarding the most suitable living
arrangement for [Ilene].
These questions would best be answered after additional evaluation such as formal
neuropsychometric analysis as recommended by Dr. Daniel Llano. [sic] the patient’s
neurologist and Alzheimer disease specialist.”
¶ 13 Along with his report, Dr. Riskin submitted a “progress note,” describing his examination
of Ilene. He stated that, for the appointment, he reviewed “notes from Carle, including those of
[Ilene’s] primary care physician and neurologist.” Dr. Riskin also noted Ilene was
accompanied to his office “by her son, Mr. Dawson.” According to Dr. Riskin, during their
October 15, 2015, appointment, Ilene reported that she was born in Tennessee and described
having an older brother and sister, two younger brothers, and one younger sister. She stated her
father was a coal miner, she went to school until the eighth grade, and she had worked as a
hairdresser. Ilene further reported having three sons, whom she was able to name.
Additionally, she reported that she lived with her son after falling in her home and stated “she
felt she was ‘not safe’ alone.”
¶ 14 However, Dr. Riskin’s progress note also stated that, during the same appointment, Ilene
denied having falls and could not tell him her age, birth date, or “how many siblings she had.”
She could not recall her husband’s first name or how they met. Dr. Riskin noted Ilene’s son
seemed surprised that Ilene “was unaware that she had been married once before” and
informed Dr. Riskin that Ilene had been married twice. Further, Ilene reported that “she had
one granddaughter that she knew of” but she was unsure if she had any additional
grandchildren or great grandchildren. According to Dr. Riskin, Ilene also “could not tell [him]
about her past medical history or what medicines if any she was taking.” He stated she
recognized that she was “seeing the doctors recently” and stated “she was sorry that ‘there was
all this fuss.’ ”
¶ 15 Dr. Riskin described Ilene as being “agreeable” to an examination and testing, but noted
her son informed him that Ilene “tended to do poorly when ‘under stress’ such as this
encounter.” With respect to Ilene’s mental status examination, Dr. Riskin stated her “mocatest
[(MoCA Test, that is, Montreal Cognitive Assessment test)] Score [was] 8/30, adding one
point for eighth-grade education raising the score to 9/30.” Further, he stated as follows with
respect to Ilene’s neurologic examination:
“She is attentive, affable, even charming. The voice is soft. The speech is mostly clear.
Language is normal. Facies are symmetric, the gaze is conjugate, there is no ptosis. The
eyes move in all directions of gaze without nystagmus or gaze paresis. Motor strength
is diminished and commensurate with age. There is no frank dystaxia. Deep tendon
reflexes were absent.”
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¶ 16 On December 3, 2015, Hensley, Ilene’s GAL, filed a report in the matter. Initially, Hensley
stated that he spoke with Philip by telephone. Philip alleged the existence of “a Kirk Family
Revocable Living Trust,” which was of unknown value. According to Philip, the trust was
established in 2002 by Ilene’s second husband and “may have had as much as a million dollars
in it at some point.” Philip maintained the trust was “ ‘dismantled’ ” by John, acting as Ilene’s
agent but had no documentation of the trust or its dismantling.
¶ 17 Hensley stated Philip reported seeing Ilene three times in the past five years but speaking to
her by telephone every other day. Philip asserted he visited Ilene in Champaign in the summer
of 2014 and she let him into her house “even though she did not know him” and was alone.
Philip also reported speaking on the telephone with Ilene earlier in the day. He maintained “she
had been unable to comprehend things he told her.” When Philip asked to speak with John,
John refused to speak with him. On May 4, 2015, Philip left a message for Hensley and
asserted that John was not allowing Philip to speak with Ilene. Hensley further stated that
Philip asserted he intended to move to Illinois to care for Ilene in the event he was appointed
her guardian.
¶ 18 On May 14, 2015, Hensley met with Ilene in her home. John was also present. Hensley
described the home as well maintained with a “bright and immaculate” interior. He observed
Ilene to be “physically frail but alert and cordial.” According to Hensley, Ilene stated “she was
aware Philip had initiated guardianship proceedings and commented he ‘just wants control of
things.’ ” Hensley further described his interactions with Ilene as follows:
“[Ilene] said she paid her own bills until recently, [sic] (though she was vague about
what she meant by ‘recently’). She seemed uncertain about whether or not she had
signed any powers-of-attorney to permit others to pay bills on her behalf. She said she
has money in a bank in Paxton and believed the family trust still exists. However, she
knew nothing about documentation. She said Philip telephones her ‘occasionally,’
without being more specific. When he does, they talk and get along. She said, though,
that John is retired, and she prefers her circumstances as they are. John is attentive to
her needs and spends a good deal of time with her.
Some of Ilene’s answers to my questions were not responsive. Instead, she would
‘answer’ with information about her mother or with anecdotes from years and places
ago. It was unclear whether such unresponsiveness was the result of fatigue, of the
discomfort of being questioned about her personal life, of diminished mental acuity, or
of some combination thereof. However, it was clear that at least some of the last was in
play.”
¶ 19 Hensley stated that, following the visit, he learned Ilene bought new hearing aids, raising a
question as to whether her impaired hearing affected her responses. On October 27, 2015, he
met with Ilene a second time and noted she “expressed mild exasperation at the ongoing
guardianship proceedings.” Hensley found Ilene’s responses to his questions and their overall
conversation was “less tentative” than during their initial visit. As a result, he believed Ilene’s
hearing aids had helped her and that her cognitive deterioration was not as great as he first
thought. Nevertheless, Hensley stated that, a couple of times, Ilene “lapsed into twice told-tales
about her earlier life that, while interesting, were no[t] quite apropos of anything at hand.”
¶ 20 Additionally, Hensley stated John was present at both visits and spoke with him. John
reported that he and Ilene got along well and “relate[d] easily with one another.” John also
asserted he took Ilene to medical appointments and social activities. He made sure Ilene’s bills
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were paid but reported she oversaw what he did with her money. Hensley understood John to
mean that he kept no secrets from Ilene about where her money went.
¶ 21 Due to Philip’s allegations of “financial irresponsibility” by John, Hensley stated he “sort
of” engaged in discovery and reviewed certain financial documents, including “statements of
the account of [sic] in the name of Kirk Family Revocable Living Trust, (Ilene as Trustee), at
the Farmers-Merchants National Bank in Paxton, from January 1, 2011, through May 8, 2015.”
Hensley noted no actual trust documents were presented for his review and he could not “say
what became of the trust—or if it ever existed.” He concluded that “[a]bsent a more satisfying
explanation than [he had] heard from anyone or found, [he had] no opinion about the
significance, if any, of Philip’s allegations about the trust and its ‘dismantling.’ ”
¶ 22 Ultimately, Hensley stated he saw nothing “that suggested any impropriety in the
management of Ilene’s assets” by either Ilene or John. However, Hensley noted he did observe
six payments to Philip through checks or wire transfers from 2009 to 2013, in amounts totaling
$18,800. Hensley stated some of the payments were described as loans but he found no
evidence of any repayment by Philip to Ilene.
¶ 23 Hensley further stated that Ilene did not believe she required a guardian and believed she
and John were managing her affairs to her satisfaction. Ilene did not want Philip to be her
guardian and opposed any change of residence. Hensley stated he had “no reason to believe
Philip would not act lovingly toward his mother.” However, he also had “current and
long-standing evidence that John ha[d] done, and [was] doing, so.” Regarding the
appropriateness of a guardianship, Hensley opined as follows:
“(1) Ilene is a ‘person with a disability,’ as that term is defined in [the Probate Act].
Mental deterioration and physical incapacity combine to render her ‘not fully able to
manage [her] person or estate.’
(2) In light of the [requirements of the Probate Act], and without knowing Dr.
Riskin’s opinions or the significance, if any, of the allegations about the trust and its
disposition, I do not believe the extent of Ilene’s disability is such as to warrant a
guardianship.
These opinions would be affected by a medical opinion that Ilene is substantially
less competent than she appears to be and by confirmation of Philip’s allegations about
the trust. Absent either of those developments, Ilene’s circumstances appear not to be
broken, and, therefore, not in need of being fixed.”
¶ 24 Also on December 3, 2015, the trial court conducted a hearing in the matter. Philip
requested that the referral to Dr. Llano recommended by Dr. Riskin “be made and that [Ilene]
be seen.” Both Ilene and John objected to that request, while Hensley asserted he did not have
anything to add other than what was in his report. However, he noted that “by all appearances”
Ilene’s situation was “working well” for her and if evidence existed which would indicate
otherwise, he had not seen it. The court noted Philip had selected Dr. Riskin to perform the
evaluation and stated as follows:
“So, I guess my thought is, you had one shot at this and at this point, since we don’t
have a report, I’m not necessarily ruling to send a 95 year old woman over to another
facility, yet again, to have another evaluation, especially with the weather turning badly
and the possibility of all sorts of communicable diseases at these facilities. So, at this
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point, *** if you’re asking—formally asking the Court to order another evaluation, at
this point I’m going to deny that request.”
Ultimately, however, the court continued the matter to give Philip the opportunity to speak
with Dr. Riskin “to see if he misunderstood what he was supposed to do, and perhaps ***
provide a report that would comply with the statute.”
¶ 25 On January 7, 2016, the parties appeared before the trial court. Philip’s counsel noted he
had contacted Dr. Riskin’s office but Dr. Riskin was unwilling to speak with anyone directly or
provide any additional information.
¶ 26 On January 14, 2016, Ilene filed a motion to strike and dismiss Philip’s guardianship
petition pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS
5/2-615, 2-619 (West 2014)). She argued Philip’s petition “did not comport with” section
11a-9 of the Probate Act, in that it was not accompanied by a report, which met the
requirements of that section. Ilene noted Dr. Riskin did not offer an opinion that she was a
person with a disability, state that she was unable to function independently, or recommend a
guardianship. She attached Dr. Riskin’s report and progress note to her motion. Ilene also
argued she executed a valid health-care power of attorney in November 2014, and was
regularly cared for by Dr. Syed, whose April 2015 letter she attached to her filing.
Additionally, Ilene pointed out that Hensley concluded a guardianship was unnecessary. She
further argued as follows:
“[Section 2-619 of the Code] provides that dismissal is proper where the claim asserted
by the moving party is barred by other affirmative matters which defeat the claim.
[Philip’s petition] is also subject to dismissal pursuant to [section] 2-615 since the
burden was on Philip *** to present a prima facie pleading containing clear and
convincing specific factual allegations. The statements in the pleadings by Philip ***
did not contain specific dates or details of personal encounters. The pleading is really a
statement of the conclusions of Philip *** without facts, and are insufficient to proceed
further.”
¶ 27 On February 3, 2016, Philip filed a response to Ilene’s motion to strike and dismiss. He
maintained dismissal of his guardianship petition was unwarranted with respect to both
sections 2-615 and 2-619 of the Code. With respect to section 2-619, he maintained Ilene failed
to present an “affirmative matter” sufficient to support a dismissal of his guardianship petition.
Philip argued that the “lack of a proper physician’s report” was not the type of affirmative
matter upon which a section 2-619 dismissal could be based. Additionally, he asserted Dr.
Syed’s letter was insufficient because it was neither a proper physician’s report as
contemplated by section 11a-9 of the Probate Act, nor an affidavit.
¶ 28 In addressing a dismissal pursuant to section 2-615 of the Code, Philip asserted Dr.
Riskin’s report was sufficient to meet statutory requirements and could have supported a
determination by the court that a guardianship was necessary. In an effort to put unexplained
information in Dr. Riskin’s report into context, Philip attached computer printouts from
various websites to his response, containing information on diagnosis codes, cognitive tests
used to detect dementia, and “MoCA” test scores.
¶ 29 On February 18, 2016, the trial court conducted a hearing on Ilene’s motion to dismiss.
Following the parties’ arguments, it denied Ilene’s section 2-615 motion to dismiss, stating it
did not believe there was any basis upon which the court could grant that motion. However, it
granted Ilene’s motion to dismiss pursuant to section 2-619 of the Code. In so holding, it noted
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Dr. Riskin’s report was “pretty much useless,” as it “did not have any type of
recommendations, did not have any type of findings,” and was insufficient to support Philip’s
petition. The court reiterated its rationale behind declining to order a second evaluation on
Ilene, stating as follows:
“Obviously with the proposed ward being 95 years old, we have some significant
concerns with respect to her ability to be transported around this community, and
certainly, with respect to her physical well-being. So certainly, I do not believe it’s in
her best interest to require multiple visits to multiple sights [sic] in order to obtain
physician reports. So certainly, I have grave concerns with respect to requiring more
than—than one report due to the nature of what is involved. And that’s the reason why
the Court denied the request for *** a successor physician to examine her.”
¶ 30 The trial court went on to state that Ilene’s section 2-619 motion to dismiss was well taken
due to the fact that the court did not “have any physician’s report to support this petition.” It
stated that, without a physician’s report, there were insufficient facts to be able to proceed. The
court went on to state that, although the result would have been “more clear cut” if Dr. Syed’s
letter had been in the form of an affidavit, it nevertheless found the information provided by
Dr. Syed and Hensley led it to believe dismissal pursuant to section 2-619 was warranted.
¶ 31 On March 3, 2016, the trial court entered an order dismissing Philip’s guardianship petition
with prejudice. On March 28, 2016, Philip filed a motion to reconsider, which the court denied.
¶ 32 This appeal followed.
¶ 33 II. ANALYSIS
¶ 34 On appeal, Philip challenges the trial court’s dismissal of his guardianship petition. He
argues that the court erred in dismissing his petition pursuant to section 2-619(a)(9) because no
“affirmative matter” was presented to defeat his claim. Philip also contends that the court erred
in denying his request for an additional evaluation of Ilene as recommended by Dr. Riskin.
¶ 35 A. The Probate Act
¶ 36 The Probate Act provides that, upon the filing of a petition for guardianship, the trial court
has authority to adjudge a person disabled and appoint a guardian of the person, estate, or both.
755 ILCS 5/11a-3(a) (West 2012). A “disabled person” is defined as “a person 18 years or
older who *** because of mental deterioration or physical incapacity is not fully able to
manage his person or estate.” 755 ILCS 5/11a-2(a) (West 2012). Disability must be
demonstrated by clear and convincing evidence. 755 ILCS 5/11a-3(a) (West 2012). Once the
court adjudges a person disabled, it may appoint a guardian of the person “if it has been
demonstrated by clear and convincing evidence that because of his disability [the disabled
person] lacks sufficient understanding or capacity to make or communicate responsible
decisions concerning the care of his person.” Id. It may appoint a guardian of the estate “if it
has been demonstrated by clear and convincing evidence that because of his disability [the
disabled person] is unable to manage his estate or financial affairs.” Id.
¶ 37 Additionally, section 11a-9(a), (b) of the Probate Act (755 ILCS 5/11a-9(a), (b) (West
2012)) provides for the submission of a report addressing the alleged disabled person’s
condition and need for a guardianship. That section states as follows:
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“(a) The petition for adjudication of disability and for appointment of a guardian
should be accompanied by a report which contains (1) a description of the nature and
type of the respondent’s disability and an assessment of how the disability impacts on
the ability of the respondent to make decisions or to function independently; (2) an
analysis and results of evaluations of the respondent’s mental and physical condition
and, where appropriate, educational condition, adaptive behavior and social skills,
which have been performed within 3 months of the date of the filing of the petition; (3)
an opinion as to whether guardianship is needed, the type and scope of the guardianship
needed, and the reasons therefor; (4) a recommendation as to the most suitable living
arrangement and, where appropriate, treatment or habilitation plan for the respondent
and the reasons therefor; (5) the signatures of all persons who performed the
evaluations upon which the report is based, one of whom shall be a licensed physician
and a statement of the certification, license, or other credentials that qualify the
evaluators who prepared the report.
(b) If for any reason no report accompanies the petition, the court shall order
appropriate evaluations to be performed by a qualified person or persons and a report
prepared and filed with the court at least 10 days prior to the hearing.” 755 ILCS
5/11a-9(a), (b) (West 2012).
¶ 38 B. Section 2-619 Dismissal
¶ 39 “A motion to dismiss under section 2-619 admits the sufficiency of the complaint, but
asserts affirmative matter that defeats the claim.” Leetaru v. Board of Trustees of the
University of Illinois, 2015 IL 117485, ¶ 40, 32 N.E.3d 583. In particular, section 2-619(a)(9)
provides for dismissal when the claim “is barred by other affirmative matter avoiding the legal
effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2014).
“The standard articulation of ‘affirmative matter’ is:
‘[A] type of defense that either negates an alleged cause of action completely or
refutes crucial conclusions of law or conclusion of material fact unsupported by
allegations of specific fact contained or inferred from the complaint *** [not]
merely evidence upon which defendant expects to contest an ultimate fact stated in
the complaint.’ ” Smith v. Waukegan Park District, 231 Ill. 2d 111, 121, 896
N.E.2d 232, 238 (2008) (quoting 4 Richard A. Michael, Illinois Practice § 41.7, at
332 (1989)).
¶ 40 When the grounds for dismissal “do not appear on the face of the pleading attacked[,] the
motion [to dismiss] shall be supported by affidavit.” 735 ILCS 5/2-619(a) (West 2014). Illinois
Supreme Court Rule 191(a) (eff. Jan. 4, 2013) sets forth the requirements for affidavits
supporting a section 2-619 motion to dismiss, providing as follows:
“[Affidavits] shall be made on the personal knowledge of the affiants; shall set forth
with particularity the facts upon which the claim, counterclaim, or defense is based;
shall have attached thereto sworn or certified copies of all documents upon which the
affiant relies; shall not consist of conclusions but of facts admissible in evidence; and
shall affirmatively show that the affiant, if sworn as a witness, can testify competently
thereto.”
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¶ 41 “In ruling on the motion, the circuit court must interpret all pleadings and supporting
documents in the light most favorable to the nonmoving party.” Richter v. Prairie Farms
Dairy, Inc., 2016 IL 119518, ¶ 18, 53 N.E.3d 1. The grant or denial of section 2-619 motion to
dismiss is subject to de novo review. Id.
¶ 42 Initially, we note that, although Ilene filed her motion to dismiss pursuant to both sections
2-615 and 2-619 of the Code, she failed to comply with the statutory requirements regarding
combined motions. Under the Code, section 2-615 and 2-619 motions to dismiss may be filed
together in a single motion. 735 ILCS 5/2-619.1 (West 2014). However, such a combined
motion must be “in parts” and each part must specify the section to which it pertains and be
limited to that section. Id. Each part must “also clearly show the points or grounds relied upon
under the Section upon which it is based.” Id. In the instant case, Ilene’s section 2-615 and
section 2-619 claims were improperly commingled as they were not separated into parts.
Further, we note she failed to identify the particular section 2-619 subsection under which her
claims were brought. Additionally, although she described subsection (a)(9) by arguing section
2-619 permits dismissal where a claim “is barred by other affirmative matters,” Ilene failed to
specify what “affirmative matter” barred Philip’s petition.
¶ 43 Nevertheless, despite the deficiencies in Ilene’s motion, the trial court conducted a hearing
and, ultimately, found dismissal appropriate under section 2-619. The record reflects Ilene
relied on Dr. Riskin’s report, the GAL’s report, and Dr. Syed’s letter in arguing dismissal was
appropriate. The court determined a dismissal under section 2-619 was “well-taken” because
no physician’s report supported the guardianship petition. Philip argues that the trial court
erred in granting Ilene’s section 2-619 motion to dismiss because she failed to identify any
“affirmative matter” to defeat his claim. For the reasons that follow, we agree with Philip.
¶ 44 Both before the trial court and on appeal, the parties have cited appellate court decisions
providing that a physician’s report, containing opinions that the alleged disabled individual is
not disabled, can be relied upon as “affirmative matter” sufficient to support a section 2-619
dismissal. See In re Estate of Silverman, 257 Ill. App. 3d 162, 628 N.E.2d 763 (1993); In re
Estate of Hanley, 2013 IL App (3d) 110264, 995 N.E.2d 596. Philip argues those cases are
distinguishable from the present case, and we agree.
¶ 45 In Silverman, 257 Ill. App. 3d at 163, 628 N.E.2d at 765, the petitioner alleged his brother,
Charles, was disabled and sought to be appointed as the guardian over both Charles’s person
and estate. His petition for guardianship was not accompanied by a physician’s report
indicating that Charles was mentally disabled. Id. Charles, however, filed motion to dismiss
that “was accompanied by a medical report in the form of an affidavit signed by [Charles’s]
family physician.” Id. at 164, 628 N.E.2d at 766. The physician averred that he had been
Charles’s physician for 30 years, had recently examined Charles, and Charles was mentally
competent to make personal and financial decisions on his own. Id. at 164-65, 628 N.E.2d at
766. Charles also attached a GAL’s report to his motion, in which the GAL described his
interview with Charles and determined he did not need a guardian. Id. at 165, 628 N.E.2d at
766. Ultimately, the trial court granted Charles’s motion to dismiss. Id. at 168, 628 N.E.2d at
768.
¶ 46 On review, the First District affirmed the trial court’s dismissal, finding that, although
Charles’s motion had been unlabeled, it was “apparently” brought under section 2-619(a)(9).
Id. at 172-73, 628 N.E.2d at 770-71. In reaching its decision, the court found the “report” by
Charles’s doctor met statutory requirements, showing the doctor “evaluated [Charles’s]
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physical and mental condition, found no disability, stated that [Charles] did not require a
guardian, recommended no change in his living arrangements, and signed the report.” Id. at
169, 628 N.E.2d at 768-69.
¶ 47 In Hanley, 2013 IL App (3d) 110264, ¶ 12, 995 N.E.2d 596, a son filed a petition for the
appointment of a guardian for his father, asserting his father was incapable of managing either
his person or estate because of age and infirmity. The father filed a motion to dismiss the son’s
petition under section 2-619, asserting “his lack of disability as affirmative matter.” Id. ¶ 15.
He supported his section 2-619 motion with medical reports from two of his treating doctors
indicating the father was not disabled, the doctors’ affidavits, and his own affidavit. Id.
¶¶ 16-21. The trial court granted the father’s motion to dismiss, finding the son “had not
attached any medical report or affidavits establishing disability as defined in the statute, while
[the father] had submitted medical reports and affidavits of [his treating doctors] which
complied with the statute and which asserted facts refuting [the father’s] alleged disability.” Id.
¶ 29.
¶ 48 On review, the Third District found the trial court correctly dismissed the son’s
guardianship petition. Id. ¶ 49. It noted the son did not attach a section 11a-9(a) (755 ILCS
5/11a-9(a) (West 2010)) report to his petition for guardianship, while the attachments to the
father’s motion to dismiss had been compliant with both that section and Illinois Supreme
Court Rule 191(a) (eff. July 1, 2002), which applies to affidavits submitted in conjunction with
a section 2-619 motion to dismiss. Id. ¶¶ 49-52. The court also noted that both the GAL’s
opinions and the father’s own affidavit supported dismissal. Id. ¶¶ 53-54. It found the father
satisfied his burden of producing affirmative matter to defeat the guardianship petition and the
burden shifted to the son to show the affirmative matter was unfounded or required the
resolution of essential, material facts before it was proved, which the court concluded he did
not do. Id. ¶ 55.
¶ 49 Here, Ilene attached both Dr. Syed’s letter and Dr. Riskin’s report and progress note to her
motion. However, Dr. Syed’s four-sentence letter was simply that—a letter. Although section
2-619 requires that motions to dismiss be supported by affidavit when the grounds for
dismissal do not appear on the face of the attacked pleading, Dr. Syed’s letter was not in the
form of an affidavit. Most notably, the letter was not sworn to by Dr. Syed before an authorized
person. See Essig v. Advocate BroMenn Medical Center, 2015 IL App (4th) 140546, ¶ 43, 33
N.E.3d 288 (finding a “written report was not an affidavit, meaning it was not sworn to,
notarized, or otherwise made under oath”). Additionally, at a minimum, an affidavit must (1)
be made on the personal knowledge of the affiant; (2) set forth facts with particularity; (3) have
attached sworn or certified copies of documents relied upon by the affiant; (4) not consist of
conclusions but of facts admissible in evidence; and (5) affirmatively show that the affiant, if
sworn, could testify competently to the information in the affidavit. Ill. S. Ct. R. 191(a) (eff.
Jan. 4, 2013). Dr. Syed’s letter failed to meet these requirements because it did not set forth
facts in detail; provided only conclusions regarding Ilene’s ability to make decisions; and
failed to reflect that, if sworn, Dr. Syed could testify competently to the information in the
letter.
¶ 50 Dr. Syed’s letter also failed to meet the statutory requirements of section 11a-9 of the
Probate Act. In particular, the letter did not address the issue of any disability Ilene might have
or provide an analysis or results of any evaluation performed by Dr. Syed. Although Dr. Syed
asserted Ilene “was able to make her own day to day decisions” and was “oriented to time,
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place, and person,” she did not specifically address the issue of a guardianship or the most
suitable living arrangement for Ilene. Moreover, we note the letter provided minimal
information regarding Dr. Syed’s relationship to Ilene and failed to describe their last contact
in any detail.
¶ 51 The record reflects Philip raised objections to Dr. Syed’s letter before the trial court and the
court expressed its own concerns that the letter was not an affidavit. Nevertheless, the court
considered Dr. Syed’s letter and found it supported dismissal of Philip’s petition. We find any
reliance on Dr. Syed’s letter was error as it was not in the form of an affidavit, provided only
minimal information, and failed to meet the statutory requirement of section 11a-9. Dr. Syed’s
letter should not have been considered and was insufficient to constitute “affirmative matter”
upon which to base a section 2-619 dismissal.
¶ 52 As stated, the record reflects Ilene also relied on Dr. Riskin’s report to support her motion
to dismiss. However, we also find this report insufficient to constitute “affirmative matter”
which defeats Philip’s claim. Specifically, Dr. Riskin’s report reflects that, while he
determined Ilene demonstrated “diminished cognitive performance on questioning and
testing,” he stated the nature and type of her disability was not known to him and had no
opinion as to her need for a guardianship or her most suitable living arrangement. Thus, unlike
the reports relied upon in Silverman and Hanley—which were wholly supportive of the
respondents’ contentions that guardianships were unwarranted—Dr. Riskin’s report was
equivocal and cannot be said to negate Philip’s petition by refuting critical conclusions of law
or fact.
¶ 53 Further, although we find this case is dissimilar from Silverman and Hanley, in that Dr.
Syed’s letter and Dr. Riskin’s report fell far short of the reports and affidavits submitted in
those cases, we also find that a section 2-619 motion to dismiss was not the appropriate vehicle
for Ilene’s attack on Philip’s petition. An affirmative matter is not evidence that merely refutes
a well-pled fact in the plaintiff’s complaint. Reynolds v. Jimmy John’s Enterprises, LLC, 2013
IL App (4th) 120139, ¶ 34, 988 N.E.2d 984. “Accordingly, section 2-619(a)(9) does not
authorize the defendant to submit affidavits or evidentiary matter for the purpose of contesting
the plaintiff’s factual allegations and presenting its version of the facts.” Id. Stated another
way, “[s]ection 2-619(a)(9) does not authorize motions asserting plaintiff’s essential
allegations are ‘not true’—the motion accepts all well-pleaded facts as true—and is not a
shortcut to resolve factual issues about the veracity of plaintiff’s essential allegations.” Id.
¶ 53. “Where a defendant seeks to address the complaint’s factual allegations, a summary
judgment motion *** is the proper vehicle. [Citations.]” Id. ¶ 34.
¶ 54 Here, in her motion to dismiss, Ilene essentially denied the allegations set forth in Philip’s
petition, i.e., that she was a disabled person and in need of a guardianship over both her person
and estate. In other words, she contested Philip’s factual allegations, asserting they were not
true, and attempted to present her own version of the facts. Such an attack on Philip’s petition
should have been made by a summary judgment motion rather than a section 2-619 motion to
dismiss.
¶ 55 C. Further Medical Evaluation
¶ 56 On appeal, Philip also argues the trial court erred in refusing to order that Ilene undergo
further evaluations. He contends section 11a-9 of the Probate Act contemplates that more than
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one evaluation may be appropriate and, thus, section 11a-9 provided authority for the trial
court in this instance to order an evaluation by Dr. Llano “as recommended” by Dr. Riskin.
¶ 57 As stated, section 11a-9(b) of the Probate Act (755 ILCS 5/11a-9(b) (West 2012)) provides
that “[i]f for any reason no report accompanies the [guardianship] petition, the [trial] court
shall order appropriate evaluations to be performed by a qualified person or persons and a
report prepared and filed with the court at least 10 days prior to the hearing.” In this instance,
the trial court ordered such an evaluation at Philip’s request. The record reflects Philip selected
Dr. Riskin, whom he describes on appeal as “a specialist who diagnoses brain disorders, like
Alzheimer’s disease.” Philip selected Dr. Riskin after the court rejected his initial selection of
an evaluator because the individual was not a medical doctor and due to the distance Ilene
would be required to travel for the evaluation. Although Philip is dissatisfied with the report
Dr. Riskin ultimately provided, his dissatisfaction does not require that the trial court order
additional evaluations. The record shows the court complied with statutory requirements and
we find it did not abuse its discretion in denying Philip’s request to order a further evaluation.
¶ 58 III. CONCLUSION
¶ 59 For the reasons stated, we affirm the trial court’s denial of Philip’s request to order Ilene to
undergo further evaluation, but we reverse the court’s dismissal of Philip’s guardianship
petition pursuant to section 2-619(a)(9) of the Code and remand the matter for further
proceedings.
¶ 60 Affirmed in part and reversed in part; cause remanded.
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