## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Estat

e of Hanley , 2013 IL App (3d) 110264

Appellate Court Caption In Re ESTATE OF J OHN P. HANL EY, an Alleg ed Disabled Person, Respond ent-Appe llee, (James Hanley
, Petitioner-Appellant and CrossAppellee
, v. Marg are t Hanley
, Respondent-Appe llee and CrossAppellant).

District & N o. Third District Docke t Nos. 3-11-0264, 3-11- 0932 cons.

Filed September 6, 2013

Held (Note : This syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action seeking a guardia nship for petitioner’s fathe r and an order of
pro te ction ag ainst petitioner’s sister, the trial court proper ly dismiss ed the petitions, since peti t i o n er did not prese nt any fac ts rebutting the aff irmative matter responde nt prese nted establishing that he was capa ble of manag i n g h i s af

fairs, even though he was a high- risk adult with disabiliti es; further

more, he did not have a guardia n, he had never been adjudicate d an incompete nt adult, and pursuant to section 103(2) of the Domestic Violence Act, no proce eding s on behalf of such an adult could
proce ed without the appr oval of his guardia n.

Dec ision Under Review Appea l from the Circuit Court of Peoria County
, No. 10-P-493; the Hon. Michae l E. Br andt, J udg e, pre siding.

J udg ment Affir med in part, c orre cted in par t, and sanc tions on appeal de nied.Counsel on

Appea l Wil liam R. Kohlhase and Mark D. Walton (ar gued), both of Miller, Hall & T rig g s, of Peoria, f

or appe llant.

Susan Dawson- Tibbits, of J ohnson, Bunc e & Noble, P.C., and David B. Radley (ar gued), both of Peoria, for a ppellee John P. Hanley

.

J

. Reed Roesler (ar gued), of Davis & Campbell, o f P eo ri a, for appellee Marg are t Hanley

.

Panel J USTI CE McDADE de livered the judgme nt of the cour t, with opinion.
J ustices Holdridg e and Schmidt concur red in the judgme nt and opinion.

OP INION

¶ 1 This appea l has proce eded in two stag es: first, J ames’s challeng e to the dismiss al of his petitions for gua

rdianship an d an o rder of protection and second, the appeal by J ames and

cross-a ppeal by Marg are t of the matter of sanctions. Sepa rate briefing was submitt ed and oral
arguments were separ ately hear d at ea ch stag e. ¶ 2 The petitioner, J ames Hanley
, filed a two-count petition for the appointment of guardia ns for his fathe r, J ohn P. Hanley (count I ), and for an order of protec tion ag ainst the responde nt, Marg are t Hanley , who i s J ames’s sist er and J ohn’s daughter (count I I ). John and Marg are t separ ately moved to dismiss the count of J ames’s petition which perta ined to eac h. The trial
court g rante d both motions to dismiss

. J ames appea ls the dismiss als, contending that the trial
court err ed beca

use: (1) evidenc e prese nted by J ohn was insufficient to support dismiss al under section 2-6 19 of the Code of Civil Procedur e (the Code) (735 I L CS 5/2-619 (West 2010)); (2) the petition alleg ed sufficie nt fac ts under section 2-615 (735 I L CS 5/2-615 (West 2010)) of the Code t o s t at e cl aim s for guardia nship and an order of protec tion, and to prec lude dismiss al under the terms of the Probate Act of 1975 (the Probate Act) (755 I L CS 5/1-1 et seq. (West 2010)); and (3) the court failed to adjudicate J ohn’s need for a guardia n, prec luding dism issal of J ames’s reque s t fo r an order of protec tion under section 103(2) of the I llinois Domestic Violence Act of 1986 (Domestic Violence Act) (750 I L CS 60/103(2) (West 2010)). We af

firm the trial c ourt on these dismissals. ¶ 3 Following dismiss al, separ ate motions for sanctions wer e filed by J ohn an d M ar gare t ag ainst J ames in the trial co urt. The court denied the motion filed by J ohn but awa rded sanctions to Marg are t. J ohn did not appea l the denial of his sanction motion; howeve r, J ames has appea led from the awa rd of s an ct ions to Marg are t, claiming that the trial court err ed when it (1) denied his motion to strike J ohn’s and Marg are t’s motions for sanctions for

-2-failure to identify false statements in his petition; and (2) place d the burden of production of

evidenc e with J ames. J ames also contends the trial court abused its discretion when it g rante d Marg are t’s motion for sanctions beca use (3) it rende red the decision based on untimely fac ts and unasser

ted gro u n d s , i n the absenc e of any false alleg ations, and despite J ames’s

o b j ectively rea sonable basis for filing his petition; and when it awa rded attorney fee s t o Marg are t beca

use (4) she did not pay her own fee s and (5) the court did not permit J ames’s counsel to question Marg are t’s counsel. ¶ 4 Marg are t has cross-a ppeale d on sanctio n s co n t en d i n g t h at t h e trial court made a n inadver tent err or when it computed the attorney fee s it awa rded her and that this court should

corr ect the e rror

. ¶ 5 We affir

m the awa

rd of sa nctions and cor

rec t the amount of the a

war d. ¶ 6 Marg are t has also moved in this court for I llinois Supreme Court Rule 375(b) (ef f. F eb. 1, 1994) sanc tions ag ainst J ames for bring ing the instant appea l. We deny that reque st.

¶ 7 FAMI LY AND PROCEDURAL HI STORY ¶ 8 J ohn P. Hanley was 76 year s old at the time the petition for guardia nship an d order

of protec tion was filed. He is the widowed fathe r of 10 adult children–5 daughters and 5 sons. He made his residenc e with his daughter, Maur een Smith, and her husband Tom. ¶ 9 In 1992, J ohn s ev er ed b u siness and personal relationships with his sons, including the petitioner, J ames, and at the time the petition was filed, that estrang ement had persisted for 18 year s. Prior to the brea k, J ohn beg an removing some family members from employ ment at his business, A. Lucas & Sons (L ucas)

. His son, Peter Hanley
, set up a competing business and J o h n cut off relationships with Peter and all family members who alig ned themselves with him. ¶ 10 The continued exis tence of the estrang ement was confirme d in court proce eding s in the springof 2005 and in the f ollowing August 1, 2008, letter J ohn sent to his sons:
“Peter , Andy , J im, J ohn & T om. Ido not wish to communicate with you at this tim e. Your lack of integ rity and dishonesty have b ee n t o o larg e a part of my life. I have moved on and I

would ask you to try

and do the same. I f my fee lings should cha

ng e I will contact you.” ¶ 11 Reg ardle ss of the 18-year estrang ement an d t h e fa ct that J ohn had taken leg al steps to deleg ate decisions about his proper ty and his health in the event of his incapa city
, J ames filed

a two-count petition on November 3, 2010, seeking to be appointed guardia n of his fathe r’s
person and to have Commerce Ba nk appointed guardia

n of his estate. He also soug ht an order of protec tion on J ohn’s behalf ag ainst Marg are t. Nea rly all salient alleg ations in the petition

are made on infor

mation and belief

. ¶ 12 In count I
, J ames alleg ed that J ohn was incapable of manag ing either his p er s o n or his
estate beca

use of ag e and infirmity ; did not curr ently have a guardia n or an ag ent under the I llinois Power of Attorney Act (755 IL CS 45/ 1-1 et seq. (West 2010)); and wa s a widowe r who resided with his daughter Maure en and her husband. J ames did not attach the require d

-3-medical repor t to this petition, but reque sted, as al l o we d by statute, that the court order “appr opriate e valuations” of John. ¶ 13 In count I I
, J ames alleg ed that: (1) J ohn was “a high risk disabled adult as define d in 750 I L CS 60/103”; (2) J ohn is or was the m aj o ri t y share holder of Lucas; (3) Marg are t was the president (and possibly a stockholder/dire ctor) of Lucas; (4) beca use J ohn, on acc ount of ag e and infirmity
, relied on Marg are t for assistance with his persona l and business aff airs and she dominated and controlled those af fa irs and, in conce rt with Maure en, curta iled J ohn’s interac tions wi th family and friends, Marg are t stood in a fiduciar y relationship with, and owed a fiduciar y duty to, J ohn. ¶ 14 Count I I further alleg ed Marg are t’s brea ch of fiduciar y duty by diverting business from Lucas to companies in which she had an owner ship or financ ial interest and J ohn did not, by permitting waste of J ohn’s assets, and by making decisions that wer e inconsistent with those J ohn would make wer e he capa ble and not under Marg are t’s influence

. J ames char acte rized Marg are t’s conduct a s expl oitation. He also re quested a n acc ounting of

J ohn’s assets. ¶ 15 J ohn moved to dismiss J ames’s petition pursuant to sec tions 2-615 (735 I L CS 5/ 2-615 (W es t 2010)) and 2-619 (735 I L CS 5/2-619 (West 2010)). He challeng ed the trial cou rt ’s jurisdiction to appoint a guardia n beca use he had previously executed power s of attorney for
proper ty and health car e. He asser ted his lack of disability as aff irmative matter under section 2-619 (7 3 5 I L C S 5 /2-619 (West 2010)) and the failure of the petition to state a cause of action under

section 2-615 ( 735 I L CS 5/ 2-615 (West 2010)). ¶ 16 J ohn supported his section 2-619 motion with a medical repor t f rom Dr. Shanta Mattai in which the neurolog ist rec ounted her five-year history of treating J oh n , h er o b servations of his phy sical and emotional condition, his adapta bility to his surroun d i n gs , and his compliance with medical instructions. She n o t ed that J ohn “had an intact mental status as deter mined by the mini-mental status examination [(MMS E)],” and indicated that any neurolog ical defic it J ohn experience d did not signific antly impact his ability to m ake decisions about his person or estate. She opined that J ohn was happy in his curr ent living environment and that it should not be chang ed. Over all, Dr. Mattai conclude d that J ohn did not need a

guardia n. ¶ 17 J ohn’s own aff idavit a verr ed that he had experience d two seizures, one in 2005 and the other in early 2010. Although they had “ca use[d him] to slow down,” they had not impaired his mental f

ac u l ties or hi s abilities to drive and walk, and to car e for himself. J ohn further

aver red that he curr ently lived wi t h Maure en and her husband, and they wer e available to help him if neede d. He attache d power s of attorney for health car e and proper ty that he had executed on September 11, 2009, naming Marg are t as his ag ent, and Maure en as succe ssor, and stated that his chosen ag ents wo u l d car e for him should the need arise. J ohn further

aver red that he had not seen or communicated with James in approximately 18 year s, other than to send the August 2008 letter. ¶ 18 Marg are t also moved to dismiss J ames’s petition pursuant to sections 2-615 (735 I L CS 5/2-615 (West 2010)) and 2-619 (735 I L CS 5/2-619 (West 2010)). She argued dismiss al was

war rante d under section 2-615 (735 I L CS 5/2-615 (West 201 0 )) b ec ause the petition conclude d, without supporting fac ts, that J ohn was a “high risk adult with disabiliti es,” and

-4-under section 2 -619 (735 I L CS 5/2-619 (West 2010)) beca use J ohn objected to the appointment of a guardia

n, and, pursuant t o s ection 103(2) of t he Domestic Violence Act, “no court proce eding may be ini t i at ed o r continued on behalf of an adult with disabiliti es

over the adult’s objection, unless such proce eding is approve d by his or her leg al guardia n, if any” (750 I L CS 60/103(2) (West 2010)). She attache d J ohn’s cer tification objecting to the court procee ding seeking an order of protec tion o n his behalf ag ainst Marg are t and asking that the proc eedingbe dismissed. ¶ 19 J ames responde d, contending he had pled sufficie nt fac ts to state a cause of action in both counts, deny

ing that J ohn’s execution of power s of attorney deprive d the court of jurisdiction
to hear his guardia

nship petition, and arg

uing that count I I should not be dismiss ed without a dete rmination by

the cour t that J ohn was c apable of mana g ing his own e state. ¶ 20 J o hn supplemented his motion to dismiss
, arguing that the case s of In r e E s t a t e o f Silverman
, 257 I ll. App. 3d 162 (1993), and W illiams v. Estate of Cole
, 393 I ll. App. 3d 771 (2009), controlled the dispositi on of this case ; that J ames’s sole purpose was to g ain control over John’s assets, and that the alleg ation of i nfirmity was unsupported and insuffic ient to

war rant guardia

nship; and attaching the medical repor t of Dr. Robert A. L izer, who had also been his phy sician for five year s. Dr. L izer conclude d that J ohn had rec overe d from his falls, enjoyed a “norma l” m ental st atus, was able to safe ly operate a vehicle and fulfill his basic
persona l needs, a

nd was “ mentally

capa ble of makinghis own decisions.” ¶ 21 J ohn later filed aff idavits of Dr. Matt ai an d Dr

. L i z er which mirrore d the substantive information contained in eac h doctor’s repor t and rec ited that eac h could competently testify to the information if nec essar y

. ¶ 22 J ames, supported by an aff idavit of Dr. Sanford Finkel, who had neither talked with nor examined J ohn, challenge d the fac tual bases for and the sufficie ncy of the repor ts and aff idavits of Dr. L iz er an d Dr

. M attai. Dr. Finkel also questioned the doctors’ failure to provide detailed information on the nature and manag ement of J ohn’s financ es, and asser ted that more thorough mental hea lth testing of John was nece ssary

. ¶ 23 Second, J ames contende d his alleg ation that J ohn could not manag e his estate due to ag e

or infirmity satisfied the applicable pleading require ments of the Probate Act, which only require d him to plead the re asons for guardia nship to the ex tent that he knew them. ¶ 24 J am es al s o at t ac h ed aff idavits from two of J ohn’s siblings and two of J ohn’s ot h er estrang ed sons alleg ing chang es in J ohn’s demea nor and relationships with family members primarily in 2005 and 2006, followinghis head injury

. ¶ 25 On J anuar

y 21, 2010, the court appointed attorney J ere my Heiple as guardia n ad lit em for J ohn. Heiple met twice with J ohn and also met with J ohn’s five sons and with one of his brothers. He found J ohn to be “fully oriented to person, place and time,” and noted that Dr. Mattai and Dr. L izer had issued separ ate repo rt s indicating that J ohn “ha[d] sufficie ntly

rec overe d from the 2005 matters such that he [was] competent to mak e al l o f his own decisions, both medi cal and otherwise.” During his second meeting with J ohn, Heiple administered the MMSE on which J ohn score d 29 of 30 poss ible points, indi catinghe had “no cognitive impairment.” A c opy of the test wa s appende d to his report. ¶ 26 Heiple also noted “significa nt relational dy sfunction” within J ohn’s family , which had

-5-orig inated in 1992 wi t h t he terminations from Lucas, and Peter’s decision to open a

competing business. The dy sfunction intensified during and afte r 2005 leg al proce eding s in which Marg are t and her sister Mary had sought orders of

protec tion ag ainst their brothers, and the family members had been advised by the court “to just stay awa y from eac h other.” Heiple also included a copy of the handwr itten August 2008 letter from J ohn to his five sons. ¶ 27 J o h n t old Heiple he wanted the guardia nship proce eding s to be dismiss ed; he had no
prese nt need for a guardia n and h ad cr eated power s of attorney should he ever need assistance

. Heiple repor

ted that he had n o i n fo rm at ion indicating that either Marg are t or Maure en would be an inappropriate ag ent for J ohn, and stated that J ohn’s living arr ang ement

was a ppropriate , and he ha d no need f or a nur sing home or assisted living. ¶ 28 Wit h reg ard to his meeting s with J ohn’s estrang ed children, Heiple noted they had vague

conce rns about J ohn’s well-be ing based solely on conjec ture. He opined that “the g rava men of their interest seeme d to focus on the operation of [J ohn’s] business, A. Lucas & Sons, as well as [J ohn’s] finances.” ¶ 29 On Marc h 16, 2011, the court enter ed its written order dismiss ing both counts of J ames’s petition with p re

judice. The order rec ited that there had been a hearing on the motions to dismiss with counsel prese nt and arguments heard. After reje cting J ohn’s j u ri sdictional challeng e, the order dismiss ed count I
, finding the claim “bar red by other aff

irmative matter avoidi n g t he leg al eff

ect of or defe ating the claim.” The court found that J ames had not attache d any medical repor t or aff idavits es tablishing disability as define d in the statute, while J ohn had submitt ed medical repor ts a nd aff idavits of Dr. L izer and Dr. Mattai which complied with the statute and which asser ted fa cts ref

uting John’s alleg ed disability

. ¶ 30 C o u n t I I
, aga i n s t Marg are t, was dismiss ed based on the court’s finding that J ohn’s

o bjection to the entry of an order of protec tion prec luded the continuation of proce ed i n gs under se ction 103(2) of

the Domestic Violenc e Ac t (750 I L CS 60/ 103(2) ( West 2010)). ¶ 31 Fo l l o wi n g t h e d ismiss al of J ames’s petition, J ohn and Marg are t separat el y s o u gh t sanctions under I llinois Supreme Court Rule 137 (ef f. Fe b. 1, 1994). J ohn’s motion alleg ed that J ames’s petition was neither well grounded in fac t nor war rante d by exis ting law, but h ad been filed for the improper purpose of hara ssing J ohn and using discovery to g ain information about Lucas to which h e was not entitled. Marg are t’s motion rec ounted the family ’s long history of di ssension and allege d that: J ames ha d not seen or spoke n to J ohn for 18 year s; he was a

projec t manag er at Hanley Steel, a business he a

nd his four brother s have operated in direc t competition with Lucas; the petition lacke d “the fac ts [or] the proper purpose to pursue the claims” advanc ed; the alleg ations in his p eti tion wer e “complete ly without substance or merit,” and J ames had a conflict of interest. She claimed that J ames had abused the proce ss of the cour t and that sanc tions were w arr anted. ¶ 32 J ames respond e d w it h motions to strike eac h sanction motion and, alternatively
, a re quest that the cour

t set the matter f

or discover

y and an e videntiary

hearing. ¶ 33 At the initial hearing on the motions for sanctions on J uly 11, 2011, the court found that Marg are t and J ohn had each presented a pri ma f acie case for sanctions for J ames’s failure
to make a rea sonable inquiry conce rning h i s p etition for a guardia n and for an order of protec tion. The court conclude d that additional discovery was not appropriate but schedule d

-6-a hearing at which the parties would be permitt ed to prese nt supplemental evidenc e and

arguments reg ardingsanctions. ¶ 34 That hearing convene d on September 30, 2011. The cour t n o t ed t h at s i n ce it had
p reviously found J ohn and Marg are t met the threshold require ments for sanctions, J am es must be g iven the opportunity to rebut thei r alleg ations and show that sanctions wer e not appropriate. Claiming that Marg are t had only prese nted “a pile of hear say ,” J ames objected “to the burde n beingshifted to [hi m] without any evidenc e beingprese nted.” ¶ 35 The pe rtinent fac ts elicited from testimony at this hearing

showed that J ohn and James had been estrang ed for 18 year s, during which ti me t hey had nev er s p o k en. J ames had not asked J ohn if he wanted or neede d a guardia n, had not secur ed a medica l ev al u at i o n or medical information about J ohn prior t o fi ling his petition, had not made any eff ort to

asce rtain whether J ohn’s failure to acknow ledg e family members or his claimed “isolation” from them was volitional or imposed by others, and had not tried to deter mine whether J ohn

was dissatisfied with Marg are t’s handling of Lucas or wanted/ne eded an order of protec tion. There was undisputed evidenc e that J ohn had, in writing
, sever ed ties with h i s s o n s an d disputed testimony that afte r rec eiving the August 2008 letter J ames disavowed any relationsh i p wi th his fathe r. It was also undisputed that L ucas and Hanley Steel, which 1 employed J ames as a projec t manag er, wer e direc t business competitors. J ames’s “per ception” of J ohn’s disability was anec dotal, based on his own sporadic sighting s or those of others–some of whom wer e as estrang ed from J ohn as he. J ames’s ex p er t offe red no independe nt opinion about J ohn’s condition based on his own examination of J ohn but only criticized the evidenc e consider ed by and opinions tender ed by J ohn’s persona l treating phy sicians. ¶ 36 On October 4, 2011, in a written order
, J ohn’s motion for sanctions was denied, with the court finding that, although J ames presented a “ver y , very weak case ” for the appointm ent of a guardia

n, his conduct with reg ard to count I did not war rant the imposit ion of sanctions. ¶ 37 Sanctions were , howeve r, aw arde d to Marg are t. The orde r noted that sec tion 103(2) of the Domestic Violence Act (750 I L CS 60/103(2) (West 2010)) prec luded the initiation or continuation of proce eding s for an order of protec tion on behalf of an adult with disabiliti es

over that ad u lt’s objections. The court found that J ames made no attempt to deter mine whether J ohn wanted him to initiate the domestic violenc e proc eeding s and that eve n afte r J ohn fi l ed the aff

idavit objecting to the proce eding s, J ames persisted. The court further conclude d that J ames had not prese nted “eve n an iota of evidenc e sug g esting any component of abuse, neg lect, hara ssment, exploi tation, or interfe renc e with persona l liberty .” A hearing was sche duled for de termination of fe es and c osts. ¶ 38 Marg are t’s initial peti t i o n fo r attorney fee s and costs soug ht a total of $42,596.24 for work done through September 30, 2011. A supplemental petition fo r $ 4
, 7 4 1

. 4 2 c o vere d work afte r Oc t o ber l, 2011. J ames objected to any fee s incurre d for work on the appea l of the

J ames ’s bro the r, T om Hanl ey, te st if ie d tha t, af

te r re cei ving the August 2008 le tt er fr om 1 J ohn, J ames st at ed tha t he did not car e i f h e e ver sp oke to J ohn again andas fa r a s he (J ames) wa s

con cer ned , he di d no t h ave a f at her . J ames has den ie d making th atst at ement.

-7-dismiss al of J ames’s petition, on issues on behalf of L ucas, on Peter’s conduct, and on count Iof James’s petition. In support of her fee petition, Marg are t testified that, althoug h Lucas

was initially paying her fee s, she was obligated to reimburse the company

. J ames’s eff ort to call Mar g are t’s attorney

as a w itness was denie d by the trial cour

t. ¶ 39 By order of Dec ember 15, 2011, afte r reduc ing her $42,596.24 fee petition by $12,951.41 in fee s and costs relating to the pending appea l or not rea sonably related to the instant litigation, the trial c ourt awa rded Ma rg are t $29,644.83. ¶ 40 Marg are t has also sought sanctions in this court pursuant to I llinois Supreme Court Rule 375(b) (ef f. Fe b. 1, 1994), alleg ing that J ames’s appea l is frivolous beca use his “underlying

case i s b as el es s, is in direc t contravention of the applicable statute, and has never been supported with ‘e ven an iota of evidenc e.’ I

t is equally

frivolous here on appea l.” ¶ 41 J ames responds that Marg are t has made no alleg ations specific to the appea l and denie s that the court found count I I frivolous but rathe r g rante d sanctions beca use J ames prosec uted it over J ohn’s objection. J ames contends a principled argument has been advanc ed on appea l for a favorab le interpre tation of section 103(2) of the Domestic Violence Act (750 I L CS 60/103(2) (West 2010)). There fore
, he asser ts that the appea l is not frivolous and sanctions

are not warr anted.

¶ 42 ANALYSI S ¶ 43 Be fo re proce eding with our analy sis of the substantive issues, we not e M ar gar et ’s challeng e to this court’s jurisdiction beca use the trial court had not ruled on subsequently filed motions for sanctions prior to the filing of the notice of appea l on Ap ri l 1 3
, 2 0 1 1. Pursuant to I llinois Supreme Court Rule 303(a) (2) (ef f. J une 4, 2008), when the court rende rs

a decision on a timely filed postjudgment motion, such as a motion for sanctions, a premature notice of appea l takes eff

ect when the court enter s the order disposing of the posttrial matter. In the instant case , the sanctions motion was g rante d on October 4, 2011, and the awa rd was enter ed on Dec ember 15, 2011, at which time the notice of a ppeal be came eff

ective. T hus, this court has prope r jurisdiction.

¶ 44 I . Dismissal of Petiti on for Gua rdianship ¶ 45 J ames h as ap p ea l ed fr o m the dismiss al with prejudice of both counts of his petition pursuant to section 2-619 of the Code of Civil Procedur e (735 I L CS 5/2-619 (West 2010)). 2 Section 2-619 permits involuntary dismiss al of an action wher e “the claim asser ted ag ainst [t he] defe ndant is barr ed by *** [an] aff irmative matter avoiding th e leg al eff ect of or defe ating the claim.” 7 3 5 I L CS 5/2-619(a) (9) (West 2010). An “af firmative matter” is something in the natu re of a defense that completely neg ates the cause of action or refutes

cruc ial conclusions of law. Van Mete r v. Darien Park District
, 207 I ll. 2d 359, 367 (2003).

J ames ar gues his pet it io n s t a t e d a cl ai m unde r sec ti on 2- 615 (73 5 I LCS 5/2

- 615 (W est 2 2010 ))

. T he dis m is sal s wer e pur sua nt to sec ti on 2- 619 (73 5 I LCS 5/2

- 619 (W est 2010 ))

. We af fi rm on t hatbas is anddo n ot re achth e s ect ion 2- 615 (73 5 I LCS 5/ 2- 615 (W est 201 0)) cha ll enges.

-8-Our revie w of an order of dismiss al is de novo. G oldberg v. Mic hael , 328 I ll. App. 3d 593,

597 (2002).

¶ 46 A. Dismissal of Count I –Section 2-619 ¶ 47 In its order of dismiss al, the trial co u rt found count I of J ames’s petition barr ed under section 2-619 (735 I L CS 5/2-619(a) (9) (We s t 2 0 1 0)) beca use the sworn, statutorily 3 compliant aff

idavits of Dr. Mattai and Dr. L izer established J ohn’s lack of disability on the basis of curr ent assessments. It also found that these repor ts wer e not succe ssfully counter ed by the aff idavit of J ames’s medical expert, Dr. F inkel, nor those of f our of J ohn’s relatives beca use they wer e “re mote and [ did] not establish a sug g estion of curr ent disability as define d by the statute.” The court conclude d J ohn had succe ssfully proven the exis tence of aff irmative matter de feating the c laim. For the rea sons that follow, we a g ree

. ¶ 48 In his petition, J ames soug ht guardia nship pursuant to proce dures set out in the Probate Act of 1975 (755 I L CS 5/1-1 et seq. (West 2010)). Section 11a-3( a) provides in pertinent part: “Upon the filing of a petition by a reputa ble person ***, the court may adjudg e a person to be a di s ab led person, but only if it has been demonstrated by clea r and convincing evide n ce th at the person is a disabled person as define d in Section 11a-2.” 755 I L CS 5/11a-3(a) (West 2010).
Section 11a-2 de fines a “ disabled per son,” as: “[A] person 18 year s of ag e or older who *** beca use of mental deterioration or phy sical incapa city is not fully able to manag e his person or estate ***.” 755 I L CS 5/11a-2 (West 2010). ¶ 49 The rec ord in the instant case reve als a plethora of evidenc e supporting the trial court’s dism i s s al o f J ames’s petition for guardia nship. Dr. Mattai and Dr. L izer both submitt ed affi d av i t s opining that J ohn was capa ble of manag ing his person and estate without the assistance of a guardia

n. Dr. M att ai ex pressly noted t hat J ohn “had an i ntact mental status

as deter mined by the MMSE.” Whil e J ames did not attach a section 11a-9( a) (7 5 5 I L CS 5/11a-9(a) (West 2010)) aff idavit to his petition for guardia nship, both the aff

idavits of Dr. 4

Sec ti on 2- 619 per m it s invol unt ary dis m is sal of an act ion wher e “t he cl ai m ass erte d agains t 3 [t h e ] d e f e n d ant is barre d by [a n] af fi rmati ve m at te r avoidi ng the le gal ef fe ct of or def

eat ing the cl ai m .” 7 35 I LCS 5/ 2- 619( a) (9) (W est 201 0).

Sec ti on 1 1a- 9(a ) p rovid es: 4 “T he pet it ion for a d j u d i c a ti on of dis abi li ty and for app oin tment of a guardi an

s h o uld be acc om

pan ie d by a re por t whic h con ta ins (1) a des cr ipt ion of the nature and type of the re spo nde nt’ s dis abi l i t y a n d an ass ess m ent of how the dis abi li ty imp a c t s o n the abi li ty of the re spo nde nt to m ake dec is ion s or to fun ct ion ind epe nde ntl y; (2) an ana lysis and re sul ts of evalua ti ons of the re spo nde nt’ s m ent al and physic al con dit ion and
, wher e app rop ri at e, edu cat io n a l con dit ion
, adapti ve beh avior and soc ia l skill s, whic h have bee n per for m ed wit hin 3 m ont hs of the dat e

-9-Mattai and Dr . L izer contain discussion of all re levant sec tion 11a-9(a ) fa ctors.

¶ 50 We reje ct J ames’s claim that the lack of medical rec ords or other documents (except the curricu l u m vitae of eac h) attache d to the aff idavits acts to invalidate them. Affidavits submitt ed in conjunction with a section 2-619 motion are g overne d by I llinois Supreme Court Rule 191(a) ( eff

. J uly 1, 2002). Rule 191(a ) provides, in pe rtinent part:
“Af fidavits *** shall be made on the persona l know ledg e of the aff iants; sha ll se t forth with particula

rity the fac ts upon which the claim, counter claim, or defe nse is based; shall have attache d there to sworn or cer tified copies of all documents upon which the aff iant relies; shall not consist of conclusions b u t of fac ts admissible in evidenc e; and shall aff irmatively show that the aff i an t, if sworn as a witness, can testify competently there to.” I ll. S. C t. R. 191(a) (e ff. July 1, 2002). ¶ 51 We acknow ledg e that Rule 191(a) require s the attachme nt of “sworn or cer tified copies of all paper s upon which the aff iant relies.” With the sole exception of the MMSE, howeve r, i t ap pear s that both doctors are rely ing, not on specific tests or documents but on t h ei r treatment of and routine i ntera ction with J ohn over a period of five year s, observing him while assisting his rec overy from the eff ec t s of two seizures. Their assessments of his abilities are based on persona l observation of his eff ort s and his skills in coping with his seizures, and the extent to which he has or has not overc ome any defic its resulting from his falls o r t h e natura l proce sses of ag ing. Such persona l observation and knowledg e is an expressly sufficie nt foundation for an aff idavit. Moreove r, we emphasize that the failure to attach documents (such as the MMSE itself) to an aff idavit is a technica l violation of the rule which should be disreg arde d when it a ppear s that the aff

iant would be compe tent to te stify at trial. Andrews v. Northwestern Memorial Hospital , 184 I ll. App. 3d 486, 492 (1989). ¶ 52 Dr. Mattai and Dr. L izer eac h aver red that he or she wa s co mpetent to testify at trial. Moreove r, their curricula vitae establish that they are medical profe ssionals licensed in the State of I llinois and with signific ant experience in their are as of prac tice. The aff idavits asser

t actua l doctor/patient rela t ionships with J ohn since 2005 (five year s) with opportunities to observe
, assess, and monitor his condition during all of the rele vant times. Mor eover , their evaluations are curr ent; prior to executing their aff idavits, J ohn’s last appointment with Dr. Mattai was November 30, 2010, and with Dr. L izer was Dec ember 6, 2010. They are clea rly competent to testify if called upon to do so. We find, as did the trial court, that the aff idavits of Dr. Mattai and Dr. L izer complied with I llinois Supreme Court Rule 191(a) ( eff . J uly 1, 2002).

of the fi li ng of the pet it ion ; (3) an opi nio n as to whet her guardi ans hip is nee ded
, the

type and sco pe of the guard i a n s h ip nee ded
, and the re aso ns the re for ; (4) a

re comm end at ion as to the m ost sui table li ving arra ngem ent and
, wher e app rop ri at e, tr eat m ent or hab il it at i o n p la n for the re spo nde nt and the re aso ns the re for ; (5) the si gnatur es of al l per son s who per for m ed the evalua ti ons up o n w h ic h the re por t is bas ed, one of wh o m sha ll be a li cen sed physic ia n and a st at ement of the

cer ti fi cat ion
, li cen se, or oth er cr ede nti al s tha t qua li fy the evalua tor s who pre par ed the re por t.” 755 I LCS 5/ 11a

- 9(a ) ( We st201 0).

-10-¶ 53 The rec ord also reve als that J ere my Heiple, J ohn’s court-a ppointed GAL
, also believe d J o h n was capa

ble of independe ntly manag ing his person and estate. Heiple repor t ed J o h n

score d 29 out of a possible 30 points on an attache d MMSE, indicati n g th e absenc e of
cognitive impairment; that while the estrang ed children with whom he met expressed “vague

conce rns” about J ohn’s well-be ing, the “grava men of their interest” seeme d to focus on the
operation of Lucas a

nd on J ohn’s financ es. ¶ 54 The rec ord also contains J ohn’s own aff idavit, which we find pertinent to the issue of his ability to manag e his business and persona l financ ial aff airs. The aff

idavit demonstrates that: J ohn rec og nized that his wife’ s death in 2009 nece ssitated chang es in his estate plan; he has
reta ined counsel for financ ial planning for many year s; he used that attorney for the update of his estate plan, which included revis i o n s t o his will and an inter vivos trust and the execution of sever al documents to prepa re for potential conting encie s–a living will, a power of attorney for health car e, a separ ate power of attorney for the compre hensive manag ement of his estate. His actions portray a person cognizant of his financ ial responsibilities, capa ble of addre ssing curr ent issues with his estate, and fore sightful enough to rec og nize the rea lities of ag ing a nd to plan for r esulting e x ige ncies if or when they

arise. ¶ 55 We find J ohn’s burden of producing aff irmative matter that would defe at J ames’s c laim

was satisfied, and the burden shifted to J ames to show the aff irmative matter is either unfounded or require s the resolution of essential, materia l fac ts befor e it is proven. Brady v. Prairie Material Sales, Inc.
, 190 I ll. App. 3d 571, 579 (198 9 ). J am es argues that the aff idavits he produce d raised materia l questions of fac t and that the exis tence of those fac tual disputes prec luded dismissal of his petiti on. We disag ree

. ¶ 56 In assessing whether J ames has succe ssfully rebutted J ohn’s af fi rm at i v e m at t er, we consider: his alleg ations in his petition and the aff idavits of J ohn’s two sons, Andre w and J ohn; of J ohn’s brother

J oseph and his sister Jane My rna; a nd of Dr. F inkel. ¶ 57 J ames’s pe tition allege d, without any supporting me dical facts, t hat J ohn was not fully

cap ab l e o f m anaging his person or estate due to ag e and infirmity

. He asser ted, on information and belief: that J ohn had neither a guardia n no r age n t s u n d er any power of attorney ; that the house in which J ohn resided with Maure en and Tom was J ohn’s by virtue of a benef icial interest in a trust; and the dollar value of J ohn’s rea l proper ty and estate, but it conce ded ignor ance of J ohn’s anticipated g ross income. There are no facts in the petition that milit ate a g ainst J ohn’s af firmative matter

. ¶ 58 We find, as did the trial court, that the aff idavits of J ohn’s brother and sister and two of his sons are remote in time and not sug g estive of a prese nt disability

. J ohn’s brother J oseph

aver red that J ohn stopped attending family meeting s in Fe bruar y 2005, that in 2006 he looked dazed and was staring at the floor, that in June 2009 he did not speak to Joseph and his wife at J ohn’s wife’ s fu n er al; that he did not attend his brother Bob’ s funer al in September 2009. At unspecifie d times, he had seen J ohn being driven in his own car

. J ohn’s sister J ane’ s aff

idavit plainly estab l i s h es that she has not spoken with him since 2005, claiminghe has ne ver a ccepted or re turned he r ca lls. ¶ 59 The aff

idavit o f J o h n ’s son, Andre w, alleg ed unresponsivene ss in 2005 and 2006 but nothing curr ent. His son J ohn rec alled a confuse d phone call from J ohn but stated that he had

-11-not seen his fathe r since Dec ember 2005. There is nothing in the fo u r af fidavits that establishes disability or is inconsistent with the estrang ement from some family members which signific antly predated J ohn’s falls or seizures or which differ s from past defic its that his doctors av erred had been succe ssfully resolved. None of these aff idavits puts J ohn’s

curr ent mental condition in issue or re quires re solution of factua l disputes. ¶ 60 Dr. F inkel’s 36-pa g e af fidavit vig orously

criticizes alleg ed def

iciencie s in and absenc e of docume ntary

support for the a ffidavits of Dr. Mattai and Dr. L izer. He lists a number of
tests he asser

ts are essential in adequately evaluating J ohn’s mental, phy sical, and financ ial abilities. Yet Dr. Finkel, who never spoke with or examined J ohn, does not prese nt a single fac t to support a conclusion that J ohn is, in fac t, disabled due to ag e or infirmity or to ref ute any conclusions of J ohn’s doctors based on thei r p er s onal knowledg e and their routine, continuous treatment of

their patient ove r a f

ive-year period. ¶ 61 We find that the alleg ations in J ames’s petition and the supporting aff idavits that he has submitt ed, even when viewed in the light most favor able to him, do n o t rebut–or even meaning fully

challeng e–the a ffirmative matter shown by J ohn. ¶ 62 J ames’s final challeng e to the trial cour t’s dismiss al is the claimed err or of the cour t’s relia n ce o n the case s of W illiams v. Estate of Cole
, 393 I ll. App. 3d 771 (2009), and In re Estate of Silverman , 257 I ll. App. 3d 162 (1993), to va lidate the use of the medical r eports submi t t ed b y Dr. Mattai and Dr. L izer. Instead, J ames believes that beca use he did not include a medical repor

t with his p etition for guardia nship, the trial court should have order ed an independe nt evaluat i o n u n d er section 11a-9(b) of the Probate Act (755 I L CS 5/11a-9(b) (West 2010)). Section 11a- 9(b) pr ovides:
“I f for any rea son no [m edica l] repor t acc ompanies the petition, t h e co urt shall order
appropriate evaluations to be perf ormed by a quali fied person or persons and a repor t prepa red and filed with the court at least 10 day s prior to the hearing.” 755 I L CS 5/11a9(b) ( West 2010). ¶ 63 In W

illiams
, a daughter (the petitioner) petitioned for guardia nship of her mot h er(the responde nt). The petiti oner did not attach a m edica l repor t to the petit ion

. T h e re s p o ndent moved to dismiss and attache d medical repor ts from two of her doctors stating that she was not impaired. The petitioner filed a motion for an independe nt examination of the responde nt support ed b y an affidavit from Dr. Sanford Finkel, who had not persona lly examined the responde nt, stating that he had revie wed various documents and opined that the responde nt

was unable to make rea soned decis i o n s

. The trial court grante d the motion to dismiss and declined to or der the reque sted exam. W illiams , 393 I ll. App. 3d at 774. ¶ 64 The appellate court af fi rm ed the dismiss al, rejecting the petit ioner’s argument that the trial court was require d to order an additional evaluation of the responde nt. W illiams
, 393 I ll. App. 3d at 780. The court found that such an evaluation is not nece ssary “whe re responde nts

come forwa

rd wi t h ‘statutorily sufficie nt repor ts.’ ” W illiams
, 393 I ll. App. 3d at 780 (quoting Silverman , 257 I ll. App. 3d at 171). ¶ 65 In Silverman
, the respondent moved t o dismiss a petiti on fo r gu ar d i an ship filed by his brother (the petitioner). The motion to d i smiss included a repor t from the responde nt’s doctor, who aver

red that he had treated the responde nt for over 30 year s and that the

-12-responde nt was mentally competent and able to make his o wn persona l and financ ial

decisions. The GAL opined that the responde nt did not need a guardia n. The petitioner filed

a motion to strike the doctor’s aff idavit. The trial court denied the petitioner’s motion to strike, but did a llow the petitioner to take the doc tor’s deposition. Silverman , 257 I ll. App. 3d at 168. The court considere d both the repor t and deposition in rea ching its decision to g rant the motion to dismis s. Silverman , 257 I ll. App. 3d at 168. ¶ 66 The appellate court aff irmed the dismiss al. Silverman
, 257 I ll. App. 3d at 173. The court found that even though the responde nt’s doctor had not asked questions about her financ ial aff airs and his r eport was not e x haustive, the doctor had a long history with the responde nt and made his evaluation in the context o f th at re l at ionship, the repor t was reliable
, it complied wit h the statutory require ments and was proper ly considere d at t he guar dianship hearing. Silverman
, 257 I ll. App. 3d at 168-69. Be cause the responde nt had pres en t ed a statutorily sufficie nt repor t indicating she was mentally competent, and the petitioner had not met her burden of showing that this aff irmat i v e m atter was unfounded or require d the resolution of a material fa ct, the appe llate cour t concluded:
“We do not believe that the c o d e p rovi sion requiring courts to order evalua tions when petitions lack medical repor ts manda t es such order s when responde nts come forwa rd with statutorily sufficie nt repor ts. The clea

r purpose of the provision is to ensure that the
court adjudicate s disability based upon a reliable evaluation of the subject’s phy sical and mental status.” Silverman , 257 I ll. App. 3d at 171. ¶ 67 In the instant case , we have found that Dr. Mattai and Dr. L izer are medical profe ssionals licensed to pra ctice in I llinois
, that eac h had treated J ohn for f ive year s beg inning with the
year of his first seizure in 2005 and continuing afte r the initiation of the guardia nship action; that the report submitt ed by eac h doctor ex pressly addre sses eac h of the relevant elements in section 11a-9 (755 I L CS 5/11a-9 (West 2010)). We have also deter mined that the aff idavits of the two doctors are sufficie ntly compliant with I llinois Suprem e C o u rt Rule 191(a) (ef f. J uly 1, 2002). W e, therefor e, co n cl u d e th at t he decision not to subject J ohn to further u n wa rr anted mental and phy sical evaluation is fully supported by W illiams and Silverman. ¶ 68 Acc ording ly
, we hold that the dismiss al of count I of James’s petition for guardia nship
was prope r.

¶ 69 B. D ismiss al of Count I I –Section 2-619 ¶ 70 The trial c ourt’s dismissal order state d:

“As to count I I
, it is order ed that it is dismiss ed with prejudice

. The alleg ed adult/disabled victim objects to an orde r of pr otection. See 750 I L CS 60/ 103.” There is no other re fer ence to count I Iin the order

. ¶ 71 Marg are t’s objection to count I I is based on section 103(2) of the Domestic Violence Act, which provide s: “ ‘Adult with disabiliti es’ means * * * a high- risk adult with disabiliti es. A person may be an adult wit h d i s ab i l i t i es for purposes of this Act even though he or she has never

-13-been adjudicate d an incompetent adult. Howeve r, no court proce eding may be initiated

or continued on b eh al f o f an adult with disabiliti es over that adult’s objection, unless such proceeding is approved b y his or her leg al guar dian, i f any .” 750 I L CS 60/103(2) (West 2010). ¶ 72 In languag e that is permissive, not mandatory
, section 11a-10.1 of the Probate Act (755 I L CS 5/11a-10.1 (West 2010)) expressly authorizes the pursuit of appointment of a guardia n and an order of protec tion in the same proce eding if, as is the case here
, the petition alleg es abuse, neg lect or exploi tation of the subject of the adjudication proce eding s. We have not found, nor has J ames cited, any languag e stating or implying that this p er missive joinder under the Probate Act (755 I L CS 5/11a-10.1 (West 2010)) nullifies the clea r direc tive of the Domestic Violence Act (750 I L CS 60/103(2) (West 2010)) if J ohn objects to the proce eding

. Indeed, the prohibition ag ainst conti nuing in the fac e of an objection appea rs in the same sentenc e with a clea

r presupposition that the objector is a “high risk” disabled adult who may not a s yet have been adjudicate d or have a guardia n. See 750 I L CS 60/103(2) (West 2010)

. Even wer e we to ignor e the plain statutory languag e, we cannot see how the two claims are

so inextrica

bly interwove n that either one must be maintained for the resolution of the other. Nor can we find a basis for concluding that a petitioner fac ed with an objection is left without
any reme dy . In such an e vent, the orde r of pr otection claim could be voluntarily dismiss ed without prejudice and could be reinstated by the petitioner if a guardia n is deeme d nece ssary and if that guardia

n believes pursuit o f th e o rd er of protec tion is war rante d. Or the newly appointed guardia

n ca n i n s t itute proce eding s for an order of protec tion independe ntly if he/she finds it war

rante d. ¶ 73 Her e, althoug h J ames’s petition alleg es that J ohn is a high risk adult with disabiliti es who is being exploi ted by Marg are t, it also conc edes, on infor mation and belief

, that J ohn does
not have a guardia

n. Acc epting these alleg ations as true, J ohn is a high ri s k adu l t wi th disabiliti es who has no guardia n. He prepa

red an aff idavit, attache d to Marg are t’s motion to dismiss
, in which he “objec t[ ed] to b oth the initiation and continuation of the court proce eding seeking an order of protec tion on my behalf ag ainst Marg are t Hanley ,” and asked that the proce eding be dismiss ed. Thus, the proce eding could only continue i f J ohn’s objection was overridden by his guardia n. See 750 I L CS 60/103(2) (W est 2010). Since he has no guardia

n, the objection is dispositi ve beca use it stands as an aff

irmat i v e m at t er defe atingJ ames’ r equest for guardia nship. ¶ 74 Acc ording ly , we hold that the dismissal of count I of J ames’s petition f or guardia

nship
was prope r.

¶ 75 I I . Sanctions in the Circuit Court ¶ 76 Following dismiss al of J ames’s petition, Marg are t filed a motion for sanctions, pursuant to I l l i nois Supreme Court Rule 137 (ef f. Feb. 1, 1994). The trial court gra nted t he mot ion, ultimately

awa rdingher f

ees in the a

mount of $29,644.83. ¶ 77 I llinois Supreme Court Rule 137 (e ff. F eb. 1, 1994) provides in pertinent par t: “The signature of an attorney or party constitutes a cer tificate by him that he has rea d the pleading
, motion or other paper ; that to the best of his knowledg e, information, and belief

-14-formed a fter r easona ble inquiry

it is well grounde d in f

act and is warr anted by

exis ting law or a g ood-fa ith argument for the extension, modification, or reve rsal of exis ting law, and that it is not interpos ed for any improper purpose, such as to hara ss or to cause

unnece ssary delay or needle ss incre ase in the cost of litigation. *** I f a pleading
, motion,

or other paper is signe d in violation of this rule, the court, upon motion or upon its own initiative, m ay i mp o se upon the person who signe d it, a repr esente d party , or both, an appropriate sanc tion *** including a r easona ble attorne y

fee .” ¶ 78 J ames has ap p ea l ed
, ch al l en gi n g t h e decision on four bases. We revie w the four

c h a ll e ng es to the trial court’s decision awa rding sanctions for an abuse of discretion. W hitm e r

v. Munson
, 335 I ll. App. 3d 501, 514 (2002). Abuse of discretion occur s when no rea sonable
person could take the view adopted by the trial court. W hitmer
, 335 I l l

. App. 3d at 514. “When revie wing a decision on a motion for sanctions, the primary consideration is whether the trial court’s decision was informed, based on valid rea soning, and follows logic ally from th e f a cts.” Technology Innovation Center, Inc. v. Multiuser Technologies Corp.
, 315 I ll

. A p p

. 3d 238, 244 (2000). ¶ 79 The purpose of Ru l e 1 3 7 is to preve nt the filing of lawsuits without leg al or fa ctual foundation, and not to penalize an attorney who is zealous but unsucce ssful. Shea, Rogal & Associates, Ltd. v. Leslie Volkswagen, Inc.
, 250 I l l

. Ap p

. 3 d 149, 153 (1993). The rule is intended to prohibit the abuse of the judicial proce ss by a litigant who makes a vexatious or hara ssing claim based on unsupported alleg ations of law or fac t. Fremare k v. John Hancoc k Mutual Lif

e Insurance Co.
, 272 I ll. App. 3d 1067, 1074 (1995). Since Rule 137 is pena l in
nature , it should be stri ct l y co n s t ru ed

. In re Marriage of Adler
, 271 I ll. App. 3d 469, 475 (1995). ¶ 80 I llinois Supreme Court Rule 137 (e ff. F eb. 1, 1994) ma ndates that signing attorneys or parties make rea sonable inquiry into the basis for a pleading befor e filing it. In evaluating the signing party ’s conduct in this reg ard, a trial court must consider rea sonablene ss based upon ci rc u m s t ance s exis ting at the time the pleading was filed, rathe r than eng ag e in hindsight. Chicago Titl e & Trust Co. v. Anderson
, 177 I ll. App. 3d 615, 623 (1988). When an appellate
court revie ws a decision on a motion for s an ct i o n s , it should consider whether the trial court’s de cision: (1) wa s an informe d one; (2) w as base d on valid rea sons that fit the case; and (3) followed logic ally from the application of the rea sons stated to the particula r circ umstances of

the ca se. In re Estate of Smith , 201 I ll. App. 3d 1005, 1010 (1990). ¶ 81 First, J ames contends that the trial court err ed when it denied h i s m o t i o n t o s trike Marg are t’s sanction motion for failure to identify any false statement made in J am es ’s petition. The plain languag e of t h e Rule 137, howeve r, sets out a varie ty of bases for the imposit ion of sanctions. I ll. S. Ct. R. 137 (ef f. Fe b. 1, 1994). We do not interpret Rule 137 as limiti ngsanctions to only filings that c ontain false statements. ¶ 82 In this case , the trial court did not abuse its discretion when it denied J ames’s motion to strike. Marg are t’s motion charg ed J ames with having neither the fac ts nor the proper purpose to advanc e the claims asser ted in cou n t I I
, an d at the hearing on her motion, Marg are t

rea sserted that J ames had filed the petition for an improper purpose. She has not alleg ed that J ames made false statements in the petition and, there fore
, need not identify such statements

-15-in her motion.

¶ 83 W e n ote that J ames corr ectly cites W hitmer for the proposi t i o n t h at a m o t i o n fo r sanctions m ust alleg e which statements were fals e an d wh i ch attorney fee s stemmed from the false statements. See W hitmer
, 335 I ll. App. 3d at 512-13. Howeve r, W hitmer is simply
not applicable here

. Be cause the sanction motion in that case alleg ed false statements and the instant case doe s not, W

hitmer ’s holding doe s not impact our dec ision. ¶ 84 Second, J ames challeng es the trial court’s decision “forcing [hi m] to car ry the burden of
g oing forwa

rd with evidenc e” at the September 30, 2011, hearing even though Marg are t did
not “pre sent any competent evidenc e i n s up p o rt o f her motion” at the J uly 11 hearing. Marg are t de nies that the court shifted any burden to James, claiming it only complied with his reque st for an evidentiar y hearing. The rec ord contains no t ra nscript for the J uly 11 hearing; ther e is, howeve r, a written order filed on Jul y

19, 2011, which states:
“Ha ve J ohn and Marg are t Hanley prese nted a p r i ma f a cie claim for Rule 137 sanctions ag ainst J ames Hanley for failure to make a rea sonable inquiry that the petition seeking to find J ohn P. Hanley a disabled adult and the petition for an order of protec tion
ag ainst Marg are t Hanley wer e well-grounded in fac t? Yes, the court must apply an objective standard of what was rea sonable under circ umstances exis ting at the time of the alleg ed violations. [C itation.] The parties will be allowed to present supplement[al] evide nce and arguments relating to the circumstance s existing that was not presented at the 7/11 hearing . No additional discover y is appropriate.” ( Emphasis added.) ¶ 85 The order shows that the court deter mined that Marg are t had prese nted a threshold ca se to support her motion and that t h e parties would be able to prese nt further evidenc e and
arguments on the merits at the September 30 hearing. T he orde r complies with this court’s decision in In re Estate of Smith , 201 I ll. App. 3d 1005 (1990). ¶ 86 In Smith
, we held that for the trial court to proper ly exercise its discretion in determining whether sanctions wer e wa rra nted, the cla imant is to be give n an opportunity to prove that the t hreshold requirements for sanctions are present in the case; the estate was to be gi ven the opportunity to rebut the claimant’s co ntentions, and both parties wer e to be g iven the opportunity t o ar gu e t h eir respec tive positions. Smith
, 201 I ll. App. 3d at 1010. J ames has cited no law sug g esting this procedu re i s i mproper or that a burden was improperly or unfairly shifted to him. ¶ 87 Third, J ames alleg es that the trial court abused its discretion when it imposed sanctions

on him. The specific bases a lleg ed for this claim are: g ranting Marg are t’s motion base d on fac ts and circ umst an ces that arose afte r J ames filed his petition; the failure of Marg are t’s motion to identify any false alleg ations in the petition; basing the decision on fac ts not alleg ed in Marg are t’s motion; and J ames’s objective basis fo r filing his petition. J ames further argues, in support, that the Domestic Violence Act (750 I L CS 60/101 et seq. (West 2010)) does not require a petitioner to seek consent befor e filing a petition, that he prese nted sufficie nt evidenc e to support the filing of his petition, and that the court imposed sanctions beca use he did not pre vail. ¶ 88 L o o k i ng at the trial court’s order of October 4, 2011, the decision to awa rd sanc tions
appea rs to be two-prong ed. First, it finds that J ames’s continued prosec ution for an order of

-16-protec tion ag ainst Marg are t once J ohn had objected was in clea r contra vention of section 103(2) of the Domestic Violence Act (750 I L CS 60/103(2) (West 2010)). J ames argues that the objection was made afte r the filing of the petition and cannot, there fore
, proper ly support the impositi on of sanc tions for the filing . We do not ag ree

. ¶ 89 J ames invoked section 103(2) (750 I L CS 60/103( 2 ) (W est 2010)) to char acte rize J ohn

as a “high ri s k d i s ab l ed adult” and to authorize or validate his pursuit of the order of protec tion aga i n s t M arga ret. The statute clea

rly direc ts that “no court proce eding may be initiated or continued

” over the objection of the claimed a dult with dis abilities and plainly contemplates t h at the person making the objection will be a high risk disabled adult, adjudicate d or not

. (Emphasis added.) W e pres u m e J am es , through his counsel, knew and understood the law on which he relied and thus p re s ume that he knew count I I had to be dismiss ed if/when J ohn filed his objection. In re Pontarelli
, 393 I ll. 310, 316 (1946). In filing the two counts at the same time, J ames assumed the risk that J ohn would object and his quest for the or der of

protec tion on J ohn’s beha lf would be short-c ircuited. ¶ 90 J ames did not have any right to continue his pursuit of the order of protec tion in the fa ce of J ohn’s objection. See 750 I L CS 60/103(2) (West 2010). Moreove r, an attorney has a duty
to dismiss a lawsuit when it become s clea r th at i t h as no viable basis. Shea, Rogal & Associates v. Leslie Volkswagen, Inc.
, 250 I ll. App. 3d 149, 153 (1993). He re, the filing of J ohn’s objection deprive d J ames of any leg al authority to continue to seek the order of protec tion on his behalf and r equire d the dismissal of count I I

. ¶ 91 The sec ond prongof the trial c ourt’s dec ision to i mpose sanctions is its finding that:

“In addition, at t he hearing of 9/ 30/ 1 1 o r at no prior hearing
, did petitioner present

even an iota of evidenc e sug g esting an y co mp onent of abuse, neg lect, hara ssment, exploi tation, or interfe renc e with per sonal liberty .” ¶ 92 We find the above finding logic ally flows from Marg are t’s alleg ations in the motion for sanctions that “James Hanley had neither the fac ts nor the proper purpose to pursue the claims advanc ed in this case ” and “[w]i th no more than conclusory alleg ations which, when tested, have been demonstra t ed t o be completely without substance or merit, and with an undisclosed conf

lict of interest *** James Hanley has abuse d the proc esses of this cour t.” ¶ 93 Marg are t’s motion for sanctions rec ounted a l o n g an d contentious history of family divisi o n an d dy sfunction, claimed that continuing this animus was the rea l purpose of J ames’s petition, and asser ted that his alleg ations wer e wi t h out foundation, substance or merit. J ames insists that there wa s an objective basis for the filing of count I I which
prec ludes the imposition of sanctions. ¶ 94 The rec ord s h o ws that in 1992 J ohn indicated that he no longe r wanted to speak w ith J ames and that J ames, asser tedly out of respe ct for his fathe r, had not spoken with him in the 18 year s since that time. J ames’s testimony supporting his reque st for an order of protec tion
ag ainst Marg are t larg ely cons i sted of multil ayere d hear say repor ts of others that evidently

cause d J ames to become “conc erne d” that Marg are t was isolating J ohn from his family and friends and seeking to g ain control of Lucas for her own financ ial g ain. J ames acknow ledg ed, howeve r, that J ohn simply may not have wanted to speak with the estrang ed family members who appr oache d him in publi c.

-17-¶ 95 Whil e his petition was larg ely based on repor ts fr o m es trang ed family members with whom J ohn has l ongindicated he wants no contac t, J ames did testify to some information
g leane d from others: J ohn’s friend Dave Armitag e told him that either Marg are t or Maure en told him that he could take J ohn to lunch but could not do so alone; Marg are t handed Andy

a chec k drawn on J ack’ s persona l a ccount a nd told him that it wa s for his stock; the Peoria school board owned the land on which Lucas was located and sold it to a company alleg edly owned b y Marg are t; some contra ctors and materia l suppliers told him that HM Stearn Ironworks, L L C, was alleg edly co-owned by M ar garet and manag ed by two employees of Lucas–one of whom was Heather McCord; Andy told J ames that an unnamed friend of that

same Heather McCord had told him that Hea ther quit her job at Lucas beca use Marg are t had asked he r to do something she did not think wa s right; he was told that L ucas ha d rec eived women’s business cer

tification, which alleg edly require d a woman to be a 51% owner ; and he hear d that Lucas had rec eived a stimul us g rant to work on steel beams for the wind energ y marke t but he lear

ned t h er e were no steel beams in wind towers and was conce rned the
company might have been used to misrepre sent itself to do work that does not actua lly exis t. ¶ 96 This ten u o u s an d go s s i p y co mp endium
, without more, seeme d enough to J ames to

war rant a conclusion that J ohn neede d protec tion from Marg are t and that he should seek to have his fathe r decla

red mentally impaired and his sister brande d a domestic abuser

. We can

s ee t h at s o me of this information might g ener ate a conce rn that would lead a rea sonably

o b j ective person to try to g ather some rea l fac ts, but J ames admitted at the hear i n g t h at , beyond the testimony he prese nted, he did no investigation into h i s fa t h er ’s need for a guardia n or for a court order to protec t J ohn from Marg are t. We do not believe a rea sonable
person unaff

ecte d by the preva iling family animus or competitive business interests would have thought that information, without more, constituted a well-founde d basis for bring ing the instant action. ¶ 97 Clearly the trial court did not. Nor can we say that no rea sonable person would agree with the cou rt ’s finding that there was no iota of evidenc e–as opposed to speculation and innuendo–that Marg are t was exploi ting, abusing
, neg lecting
, or hara ssing J ohn or interfe ring with his liberty

. Consequently
, we do not find that the trial court abused its discretion when it found sanctions war

rante d on this basis. ¶ 98 Four

th, J ames attacks the proprie t y o f aw arding fee s and costs to Marg are t for wor k perf ormed to a dvance the interests of Lucas a nd paid for by

the company

. In responding to this claim, Marg are t points out that she testified that she would have to reimburse Lucas from
any awa rd she r ece ived. ¶ 99 In support of his contention that the trial court abused its discretion when it imposed the instant attorney fee awa

rd, J ames cites only to Rule 137, and does so for the proposition that the trial court has the authority to awa rd attorney fee s as a sanction. His brief is totally devoid of citation to any authori ty indicating that the trial court abused its discretion beca use

someone other than Marg are t init ially paid her fee s. Nor does J ames cite any authority to support his contention that the trial court err ed when it did not permit his counsel to question Marg are t’s counsel. ¶ 100 I llinois Supreme Court Rule 341(h)( 7) (ef f. J uly 1, 2008) mandates that an appellate brief

-18-must contain argument with citation to appropriate authority . The burde n of argument and

rese arc h is on the appea ling party and not on the appellate court. W illiams v. Danley Lumber Co.
, 129 I ll. App. 3d 325 (1984). Any issue that has not been proper ly prese nted for revie w may be deeme d waived. I ll. S. Ct. R. 341(h)( 7) (e ff. July 1, 2008); Universal Casualty Co.

v. Lopez
, 376 I ll. App. 3d 459, 465 (2007). We find this claim to have been waived by J ames. ¶ 101 Acc ording ly
, we hold the trial court did not abuse its disc re t i on in imposing sanc tions upon J ames.

¶ 102 I I I . Marg are t’s Cross-Appea l on Sanctions ¶ 103 Marg are t submitt ed two fee petitions. The first, in the amount of $42,596.24, cover ed the period from November 1, 2010, thro ug h September 30, 2011; the second cover ed work betwee n October 1, 2011, and November 30, 2011, and totaled $4,741.42. J ames objected
to portions of the claimed fee s and submitt ed a document to the court entitled “Petitioner’s Annotations to David & Campbell L .L .C. Invoices” on which its objections are identified by labeled red box es in the left marg in and yellow highlighting. The annotations included both the orig inal and the suppleme ntal fee petitions. As the trial court indi cate d in a footnote in its order
, it designated deductions from the invoices “rel at i n g to pending appea l or not

rea sonably relat ed to the instant litigation” by blue marks on the petitioner’s annotations. These de ductions weretaken f rom both fee petitions and totaled $12,951.41. ¶ 104 M arg are t argues t hat t he trial court made a “mathematical” err or when it inadvertently omitted her supplement al petition for fee s and costs from its calc ulation of the amount of attorney fe es o we d t o her. J ames counter s that (1) the deter mination of the amount of the

awa rd was an exercise of the court’s discretion and should not be disturbed abs ent a clea r abuse of that discretion, citing Alcantar v. Peoples Gas Light & Coke Co.
, 288 I ll. App. 3d 644, 650-51 (1997), and (2) Marg are t’s failure to ask the trial court to clar ify its ruling should stand as a ba

r to her c ross-appe al. ¶ 105 The c halleng ed ca lculation, as shown in the trial c ourt’s orde r, is:

“Gr oss fee s and costs re quest: $42,596.24
Minus fees a

nd costs relating to pendingappea l

or not rea sonably

rela ted to the instant liti g ation: $12,951.41
Fe es and c osts awar ded $29,644.83” ¶ 106 Only Marg are t’s orig inal fee petition seeking $42,596.24 is repr esente d in th e “gr o ss”
reque st; her supplemental petition for $4,742.41 is not included. She asks this court to corr ect this “inadve rtent” err or, pursuant to I llinois Supreme Court Rule 366 (ef f. Fe b. 1, 1994). In

so doing, she is not challeng ing the trial court’s exercise of discretion but is contending that the cour t made a “ mathematica l” er ror. ¶ 107 For the followingrea sons, we ar e per suaded the trial court did inadve rtently err and its

err or was a s cr i v en er ’s omission rathe r than an exercise of its discretion or an err or in arithmetic. ¶ 108 First, the title “ Gross fee s and costs reque st” sug g ests an intent by the court to beg in the calc ulation by setting out the entirety of Marg are t’s claim for fee s/costs and then deducting

-19-those the court considere d inappropria te from that amount. (Emphasis added.) Second, using J ames’s annotated document, it mad e d ed u ctions from both fee petitions; howeve r, the document it self does not indicate there are two petitions or whe re the brea k betwee n them falls. Third, if the court intended to disallow the supplemental petition in its entirety
, it would
not have stricken three individual charg es from it beca use, by doing so, it would have made those deduc tions twice. ¶ 109 The resolution of this issue would have been far simpler if Marg are t ha d filed a motion
to rec onsider in the trial court and she should have done so. It is, howeve r, not a bar to relief in this court that she did not. Rule 366(b)( 3)(ii) provides that “[n] either the filing of nor the failure to file a post-judgme nt motion limit s the scope of revie w” of nonjury civil matters by the appellate court. I ll. S. Ct. R. 366(b)( 3)(ii) (ef f. Fe b. 1, 1994). As it seems clea r to us that the court intended, in setting out “gross fee s and costs reque st,” to include all of the fee s

s o u gh t b y Marg are t, we elec t to use our authority under Rule 366 to make that sole

corr ection. We hold that the following calc ulation of Marg are t’s fee awa rd is the corr ect one: Gross fe es and c osts request: $47,337.66
Minus fees a

nd costs relating to pendingappea l 12,951.41

or not rea sonably

rela ted to the instant liti g ation
Fe es and c osts awar ded $34,386.25

¶ 110 IV. Marg are t’s Motion for Rule 375(b) Sanc tions ¶ 111 Marg are t has soug ht sanctions ag ainst J ames under I llinois Supreme Court Rule 375(b) (ef f. Fe b. 1, 1994). Under Rule 375(b) sanctions may be imposed if an appea l is frivolous or not taken in g ood faith. I ll. S. Ct. R. 375(b) (ef f. Fe b. 1, 1994). An appea l is considere d frivolous if it is “not rea sonably well g rounded in fac t and not war rante d by exis ting law or

a g ood-fa ith argument for the extension, modification, or reve rsal of exis ting law.” I ll. S. Ct. R. 375(b) (e ff. F eb. 1, 1994). ¶ 112 Marg are t frame s her r equest for Rule 375(b) sanc tions as follows:
“The underlying case is basele ss, is in direc t contravention of the applicable statute, and has never been supported with ‘eve n an iota of evidenc e.’ It is equally frivolous here

on appea l. Be cause the appea l is not rea so n ab l y we ll-g rounded in fac t and is not

war rante d by exis ting law or a g ood faith argument to the contra ry , sanctions should be imposed pursuant to Supreme Court Rule 375(b) .” ¶ 113 J ames insists that, beca use his pe tition for guardia nship w as still pending
, the statutory require ment did not apply in this case

. He char acte rizes the point of this a ppeal as follows:
“T h e question that is square ly prese nted is whether a party who has soug ht the appointment of a guardia

n may pursue an o rder of protection over the disabled adult’s objection during the pendenc y ofthe guardianship procee dings ,” (Emphasis in orig inal.)
We have alre ady found that the an s we r to J ames’s question is “no.” Supra ¶¶ 72-73. The differ ence in our consideration of Rule 375 sanctions, howeve r, is that there was no case law that was square ly on point at the time J ames filed his appea l. The parties have not cited, nor have we found, any case direc tly addre ssing and answe ring whe ther a person who has

-20-simult aneously filed a petition fo r guar dianship of an alleg ed dis abled adult and a petition

on behalf of that disabled adult for an order of protec tion ag ainst an alleg edly abusive third
person is require d to dismiss t h e l att er claim if the disabled person objects, even if the
guardia nship claim is sti ll pending. ¶ 114 We believe J ames’s appea l wit h reg ard to count I I of his petition can be fairly rea d as seeking a clar ification of the law wher e there is silence and/or seeking a modification of the trial court’s interpre tation of the require ment of the statute. Either purpose is sufficie nt to avoid the penalty of Rule 375(b). Consequently
, Marg are t’s reque st for sanctions on appea l is denied.

¶ 115 CONCLUSI ON ¶ 116 The trial court’s dismiss al of both counts of J ames’s petition for guardia nship and orde r of protec tion is aff

irmed. The trial court’s imposit ion of s anctions upon J ames for his conti nued pursuit of the order of protec tion afte r J ohn objected to its continuation is aff irmed. The trial court’s inadver tent err or in calc ulating the amount of the sanction awa rd
to Marg are t is corr ecte d pursuant to supervisory authority

. Marg are t’s motion for sanctions for James’s pursuit of this appea l is denied.

¶ 117 Affir

med in part, c orre cted in par t, and sanc tions on appeal de nied.

-21-