Can you waive Sodini jurisdiction? An important consideration–see in Re Pellico

One of the issues that popped up in the Wyman case, and one which is of central importance is whether or not John Howard Wyman waived his jurisdictional defect by filing motions without first filing an objection to jurisdiction.  John Wyman did not know at the time that he could object to jurisdiction.  Now he had an attorney, JF Heckinger, but Atty Heckinger never told him that he could object.  Two years have passed, so there is no action against Heckinger for malpractice, perhaps breach of contract, that limitations period is 5 years, but not malpractice.

In any case I found one case which says that if you file pleadings, and appear, you might waive your Soldini notice jurisdiction, HOWEVER, this is a case where apparently there was only one person that required this notice, and he waived that notice.

In the cases of Tyler, Gore, Bedin, Wyman, etc.  there were numerous adult siblings and children not served and the court took note of that in In re Sodini.  Further, in the vast majority of these cases, grandma and grandpa never received a summons and complaint 14 days in advance of any hearing on a petition for guardianship, and that is required by statute.  It would appear that any “interested party” can file for lack of jurisdiction based upon non-service of other siblings or adult children, or lack of service of a summons and complaint upon the Respondent.

From  In re Estate of Pellico, 916 N.E.2d 45, 334 Ill.Dec. 12 (Ill. App., 2009) it is explained further:

Subject matter jurisdiction refers to a court’s power to adjudicate the general question involved and to grant the relief requested. In re M.M., 15,6 Ill.2d 53, 189 Ill.Dec. 1, 619 N.E.2d 702 (1993); In re Dontrell H., 38,2 Ill.App.3d 612, 321 Ill.Dec. 108, 888 N.E.2d 627 (2008). In the general civil context, circuit courts enjoy, with limited exceptions, “original jurisdiction of all justiciable matters.” Ill. Const.1970, art. VI, § 9; see Steinbrecher v. Steinbrecher, 197 Ill.2d 514, 529-30, 259 Ill.Dec. 729, 759 N.E.2d 509 (2001). As our supreme court explained in Steinbrecher:

“Effective January 1, 1964, an amendment to article VI replaced limited jurisdiction: `Circuit Court[s] shall have unlimited original jurisdiction of all justiciable matters.’ Ill. Const. 1870, art. VI, § 9 (amended 1964); accord Ill. Const.1970, art. VI, § 9 (`Circuit Courts shall have original jurisdiction of all justiciable matters except when the Supreme Court has original and exclusive jurisdiction’). This amendment created a single integrated trial court vested with jurisdiction to adjudicate all controversies.

* * *

An administrative agency, like the pre-1964 circuit courts, is powerless to

[916 N.E.2d 55]

act unless statutory authority exists. City of Chicago, 65 Ill.2d at 112[, 2 Ill.Dec. 711, 357 N.E.2d 1154]. An administrative agency is a statutory creature with no general or common law power. City of Chicago, 65 Ill.2d at 112-13[, 2 Ill.Dec. 711, 357 N.E.2d 1154]. Conversely, a circuit court is a court of general jurisdiction, which need not look to the statute for its jurisdictional authority.” Steinbrecher, 197 Ill.2d at 529-30, 259 Ill.Dec. 729, 759 N.E.2d 509.

Further, once a circuit court obtains jurisdiction, an order will not be rendered void merely because the court makes an error of law in rendering its judgment. People v. Davis, 156 Ill.2d 149, 157, 189 Ill.Dec. 49, 619 N.E.2d 750 (1993). “Accordingly, a court may not lose jurisdiction because it makes a mistake in determining either the facts, the law[,] or both.” Davis, 156 Ill.2d at 157, 189 Ill. Dec. 49, 619 N.E.2d 750.

Accordingly, in this case, the circuit court erred when it ruled that it lacked subject matter jurisdiction. Although the circuit court and the parties attempt to determine whether the circuit court had subject matter jurisdiction by looking to section 11a-18(d) of the Probate Act, neither that statute’s section nor any other statute restricted the circuit court’s jurisdictional authority. See Steinbrecher, 197 Ill.2d at 529-30, 259 Ill.Dec. 729, 759 N.E.2d 509. The circuit court, a court of general jurisdiction, had original jurisdiction of all justiciable matters (Ill. Const. 1970, art. VI, § 9), including the one at bar, and did not need to look to the Probate Act for jurisdictional authority. See Steinbrecher, 197 Ill.2d at 529-30, 259 Ill. Dec. 729, 759 N.E.2d 509. Whether the circuit court acted improperly pursuant to section 11a-18(d) of the Probate Act was a question of whether it erred in determining the law, not a question of subject matter jurisdiction. See In re Marriage of Chrobak, 34,9 Ill.App.3d 894, 285 Ill. Dec. 369, 811 N.E.2d 1248 (2004). Accordingly, we agree with the Public Guardian and the GAL that the circuit court erred when it determined that it lacked subject matter jurisdiction to order payment of guardianship fees, because it, indeed, had subject matter jurisdiction over the issue and the trusts.

To support Gregory’s argument that section 11a-18(d) of the Probate Act limited the circuit court’s jurisdiction, Gregory cites In re Estate of Gebis, 18,6 Ill.2d 188, 237 Ill.Dec. 755, 710 N.E.2d 385 (1999), for the proposition that “[w]hen a court’s power to act is controlled by statute, the circuit court is governed by rules of limited jurisdiction and must proceed by the statute’s stricture.” We note that the circuit court also relied on Gebis. The circuit court’s and Gregory’s reliance on Gebis was and is misplaced.

In 1999, prior to our supreme court’s decision in Steinbrecher, the court in Gebis limited a circuit court’s jurisdiction where the “circuit court’s power to act is controlled by statute.” Gebis, 186 Ill.2d at 193, 237 Ill.Dec. 755, 710 N.E.2d 385. The Gebis court reasoned that in those cases, “the circuit court is governed by the rules of limited jurisdiction and must proceed within the statute’s strictures.” Gebis, 186 Ill.2d at 193, 237 Ill.Dec. 755, 710 N.E.2d 385. However, Gebis relied on In re M.M., 15,6 Ill.2d 53, 189 Ill.Dec. 1, 619 N.E.2d 702 (1993), which was overruled regarding its subject matter jurisdiction holding by three subsequent supreme court cases, People ex. rel. Graf v. Village of Lake Bluff, 206 Ill.2d 541, 552-54, 276 Ill.Dec. 928, 795 N.E.2d 281 (2003), Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill.2d 325, 337, 264 Ill. Dec. 283, 770 N.E.2d 177 (2002), and Steinbrecher, 197 Ill.2d at 529-30, 259 Ill.Dec.

[916 N.E.2d 56]

729, 759 N.E.2d 509 (the Belleville trio). In In re Alex T., 37,5 Ill.App.3d 758, 314 Ill.Dec. 85, 873 N.E.2d 1015 (2007), we explained the holdings of the Belleville trio as follows:

“Since the Steinbrecher decision, the supreme court has continued to reject the principle of statutorily limited jurisdiction in general civil cases while accepting it in criminal cases, at least those involving the trial court’s authority to impose a specific sentence. On the civil side, the supreme court in Belleville Toyota and Graf reaffirmed its position that the legislature cannot limit the circuit court’s jurisdiction.” Alex T., 375 Ill.App.3d at 762, 314 Ill.Dec. 85, 873 N.E.2d 1015.

Therefore, the citation to Gebis for the proposition that the circuit court’s subject matter jurisdiction was limited by section 11a-18(d) of the Probate Act fails. The circuit court had original subject matter jurisdiction over the trusts. See Steinbrecher, 197 Ill.2d at 529-30, 259 Ill.Dec. 729, 759 N.E.2d 509.

*****

On appeal, the Public Guardian and the GAL also argue that the circuit court erred by finding that it lacked personal jurisdiction over Gregory as trustee of the Evelyn and Peter Pellico trusts. The Public Guardian and the GAL contend that Gregory was properly served as an interested person and that he waived objection to personal jurisdiction by filing responsive pleadings and motions and representing himself to the court as the trustee before objecting to personal jurisdiction. Not surprisingly, Gregory argues, both in his appellee’s brief and in his own appeal, that the circuit court lacked personal jurisdiction over him as the trustee because no service of process was served on him as the trustee, he first appeared as a pro se litigant, he requested a continuance to obtain counsel, and objection to jurisdiction was made “at the first practicable opportunity.”

We review de novo a circuit court’s dismissal of a complaint for lack of personal jurisdiction. KSAC Corp. v. Recycle Free, Inc., 364 Ill.App.3d 593, 594, 301 Ill.Dec. 418, 846 N.E.2d 1021 (2006). A circuit court can acquire personal jurisdiction over a party by the consensual authority of a voluntary appearance. GMB Financial Group, Inc. v. Marzano, 385 Ill.App.3d 978, 984, 326 Ill.Dec. 81, 899 N.E.2d 298 (2008).

Before 2000, a defendant seeking to appear before the circuit court to contest the exercise of personal jurisdiction was obliged to file a special appearance pursuant to section 2-301(a) of the Code of Civil Procedure (Code). 735 ILCS 5/2-301(a) (West 1998). Effective January 1, 2000, the amended section 2-301(a), and the entirely new section 2-301(a-5) (see 735 ILCS 5/2-301(a-5) (West 2006)), contain an explicit waiver provision that now provides for waiver of an objection based on personal jurisdiction only if the party files a responsive pleading or a motion (other than seeking an extension of time to answer or otherwise appear) before filing a motion asserting the jurisdictional objection. KSAC, 364 Ill.App.3d at 595, 301 Ill.Dec. 418, 846 N.E.2d 1021. In KSAC this court explained: “A pleading `consists of a party’s formal allegations of his claims or defenses,’ and a motion is `an application to the court for a ruling or an order in a pending case.'” KSAC, 364 Ill.App.3d at 597, 301 Ill.Dec. 418, 846 N.E.2d 1021, quoting In re Marriage of Wolff, 35,5 Ill. App.3d 403, 290 Ill.Dec. 1011, 822 N.E.2d 596 (2005).

[916 N.E.2d 57]

In this case Gregory not only appeared before the circuit court, albeit pro se, but filed a responsive pleading to the Public Guardian’s emergency petition for guardianship, entitled a “Responsive Declaration of Gregory Pellico to Robert I. Mork’s Emergency Petition for Guardianship of the Person and Estate of Evelyn Pellico,” before his attorney filed an objection to personal jurisdiction. This “Responsive Declaration” contended that, if any guardian were appointed on Evelyn’s behalf, it should be her sister. Also, prior to Gregory’s attorney’s objection to jurisdiction, Gregory represented himself as trustee of his mother’s “trust” to the circuit court. Because Gregory filed a responsive pleading and represented himself as trustee to the circuit court before his attorney objected to personal jurisdiction, Gregory waived any objection to personal jurisdiction. See 735 ILCS 5/2-301(a), (a-5) (West 2006).

So, if you intend to object to jurisdiction, an objection to jurisdiction must be your first pleading–ie, a motion or response.  If you file nothing, then there it would seem that you have not waived your right to object to jurisdiction.

I will continue to look at cases, but this case seems quite important where the Probate courts are dealing primarily with pro se litigants, summonses and complaints are not served and many adult children and siblings are not being served their Sodini notices.

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