In re Estate of Kunsch

• Decision Date: 06 August 2003
• Docket Number: No. 2-02-0756.,2-02-0756.
• Citation: 342 Ill. App.3d 552,794 N.E.2d 1059,276 Ill.Dec. 809
• Parties: In re ESTATE OF Lucy J. KUNSCH, Deceased (John W. Kunsch, Plaintiff-Appellant, v. Sara Jane Kunsch and Thomas J. Kunsch, Individually and as Executors and Co-Trustees of the Jane Kunsch Revocable Trust, Defendants-Appellees).
• Court: United States Appellate Court of Illinois

794 N.E.2d 1059

342 Ill. App.3d 552

276 Ill.Dec. 809

In re ESTATE OF Lucy J. KUNSCH, Deceased (John W. Kunsch, Plaintiff-Appellant, v. Sara Jane Kunsch and Thomas J. Kunsch, Individually and as Executors and Co-Trustees of the Jane Kunsch Revocable Trust, Defendants-Appellees).

No. 2-02-0756.

Appellate Court of Illinois, Second District.

August 6, 2003.

Frederick E. Roth, Roth Law Firm, L.L.C., Naperville, for John W. Kunsch.

George N. Vurdelja, Jr., Vurdelja & Heaphy, Chicago, for Sara Jane Kunsch, Thomas J. Kunsch.

Justice BOWMAN delivered the opinion of the court:

This appeal arises from a cause of action seeking to declare a will and trust void. Under a will and trust executed on July 16, 1997, Lucy J. Kunsch, deceased, disinherited two of her four children. Lucy's new will and trust provided that upon her death defendants, Sara Jane Kunsch and Thomas J. Kunsch, would be the sole beneficiaries of her estate valued at over $1 million. Plaintiff, John W. Kunsch, brought suit alleging that defendants had unduly influenced their mother to change her will for their benefit and, consequently, disinherit plaintiff. Following a trial, a jury determined that the will and trust were valid. Plaintiff now appeals, challenging the propriety of the jury's verdict. We find, however, that we are without jurisdiction to consider plaintiff's appeal because he failed to initiate it by filing a timely notice of appeal.

The jury verdict in this matter was entered on March 19, 2002. On March 22, 2002, defendants filed separate motions to recover costs and to strike lis pendens. Then, on April 18, 2002, plaintiff filed a motion requesting an extension of time to file his posttrial motion. On May 1, 2002, the trial court ruled on defendants' motions and also granted plaintiff 30 additional days to file his posttrial motion. The trial court subsequently denied plaintiff's posttrial motion on June 28. On July 23, 2002, plaintiff filed his notice of appeal.

Supreme Court Rule 303(a)(1) requires that a "notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or nonjury case, within 30 days after the entry of the order disposing of the last pending post-judgment motion." 155 Ill.2d R. 303(a)(1). Our supreme court demands strict compliance with its rules governing appeals, and neither a trial court nor an appellate court has authority to excuse compliance with the requirements mandated by such rules. Mitchell v. Fiat-Allis, Inc., 158 Ill.2d 143, 150, 198 Ill.Dec. 399, 632 N.E.2d 1010 (1994); Clark v. Han, 272 Ill.App.3d 981, 984, 209 Ill.Dec. 371, 651 N.E.2d 549 (1995). The timely filing of an appeal is not only mandatory, but also provides the appellate court's jurisdictional basis. See 155 Ill.2d R. 301; see also Clark, 272 Ill. App.3d at 984, 209 Ill.Dec. 371, 651 N.E.2d 549.

Here, plaintiff did not file his notice of appeal within 30 days after the entry of the March 19 judgment. Instead, his intent was to file a posttrial motion challenging the propriety of the jury verdict. Thus, we must determine for purposes of Supreme Court Rule 303(a)(1) if plaintiff filed a "timely post-trial motion directed against the judgment" to stay its enforcement. 155 Ill.2d R. 303(a)(1).

Section 2-1202 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1202 (West 2002)) provides that a posttrial motion must be filed within 30 days after the entry of judgment or "within any further time the court may allow within the 30 days or any extensions thereof." Hence, if the trial court extends the time for filing a posttrial motion beyond the initial 30-day period, that order must be entered within the 30-day period or within any period of extension already given. Trentman v. Kappel, 333 Ill.App.3d 440, 442, 266 Ill. Dec. 969, 775 N.E.2d 1041 (2002). Stated differently, when the 30-day period has expired without the entry of a new order setting a new deadline, the trial court loses jurisdiction over the case. Trentman, 333 Ill.App.3d at 442, 266 Ill.Dec. 969, 775 N.E.2d 1041.

In Kwak v. St. Anthony De Padua Hospital, 54 Ill.App.3d 719, 724-25, 12 Ill.Dec. 332, 369 N.E.2d 1346 (1977), the court considered a situation similar to the one in this case. There, two judgments were at issue, dated January 26 and January 29. Kwak, 54 Ill.App.3d at 723,12 Ill.Dec. 332,369 N.E.2d 1346. On February 23, the plaintiff filed a motion for an extension of time to file posttrial motions attacking the judgments. Kwak, 54 Ill.App.3d at 723,12 Ill.Dec. 332,369 N.E.2d 1346. The trial court granted the plaintiff's request for additional time on March 10, but only after the 30-day periods had already expired on February 25 and 28. Kwak, 54 Ill.App.3d at 723,12 Ill.Dec. 332,369 N.E.2d 1346. The appellate court held that the jurisdiction of the trial court could be extended beyond February 25 and 28 only if the extension of time was allowed prior to these dates. Kwak, 54 Ill.App.3d at 724,12 Ill.Dec. 332,369 N.E.2d 1346. Furthermore, the court rejected the plaintiff's claim that she was not at fault because the trial court judge was unavailable to grant the order. Kwak, 54 Ill.App.3d at 724,12 Ill.Dec. 332,369 N.E.2d 1346. In reply to this argument, the appellate court stated that the plaintiff failed to avail herself of the remedial provision of Rule 303, allowing for an extension of time to file a notice of appeal. Kwak, 54 Ill.App.3d at 725,12 Ill.Dec. 332,369 N.E.2d 1346.

In a more recent case, the plaintiff in Trentman filed nine requests for an extension of time that were proper and timely. Trentman, 333 Ill.App.3d at 443-44, 266 Ill.Dec. 969, 775 N.E.2d 1041. His tenth extension had to be obtained by January 4, but the request was not filed until January 5. Trentman, 333 Ill.App.3d at 443-44, 266 Ill.Dec. 969, 775 N.E.2d 1041. Relying on Kwak, the court noted that both the request and the trial court's order must occur before the deadline. Trentman, 333 Ill.App.3d at 444, 266 Ill.Dec. 969, 775 N.E.2d 1041. Thus, after January 4 passed with no order entered, the trial court lost jurisdiction to entertain any further motions for extension of time or the plaintiff's posttrial motion. Trentman, 333 Ill.App.3d at 444, 266 Ill.Dec. 969, 775 N.E.2d 1041.

Thus, when a trial court fails to allow an extension of time to file a posttrial motion within the initial 30-day period, there is no jurisdiction to later grant a plaintiff additional time or to consider a posttrial motion attacking the final judgment. Trentman, 333 Ill.App.3d at 443, 266 Ill.Dec. 969, 775 N.E.2d 1041; Kwak, 54 Ill.App.3d at 724, 12 Ill.Dec. 332, 369 N.E.2d 1346. In this case, the trial court's May 1 order allowing for an extension of time was granted well beyond the 30-day period mandated by section 2-1202, which commenced after the March 19 judgment. Therefore, section 2-1202 precluded the trial court from later granting plaintiff's request.

One exception to this rule is found in Spurgeon v. Alton Memorial Hospital, 285 Ill.App.3d 703, 220 Ill.Dec. 974, 674 N.E.2d 517 (1996). In Spurgeon, a plaintiff failed to obtain a time extension to file a posttrial motion until after the expiration of the 30-day period. Spurgeon, 285 Ill.App.3d at 707, 220 Ill.Dec. 974, 674 N.E.2d 517. Nonetheless, the court did not follow the reasoning in Kwak, finding it factually distinguishable. Spurgeon, 285 Ill.App.3d at 706, 220 Ill.Dec. 974, 674 N.E.2d 517. While the plaintiff in Spurgeon had failed to file a posttrial motion or obtain an extension of time within the 30-day period, the defendant had filed a posttrial motion. Spurgeon, 285 Ill. App.3d at 707, 220 Ill.Dec. 974, 674 N.E.2d 517. Thus, the court determined that so long as any party's posttrial motion was still pending, the underlying judgment was not final and the trial court retained jurisdiction to grant the plaintiff an extension of time. Spurgeon, 285 Ill.App.3d at 707, 220 Ill.Dec. 974, 674 N.E.2d 517.

Relying on Spurgeon, plaintiff contends that the trial court retained jurisdiction to grant the order because defendants' March 22 motions for costs and to strike lis pendens were still pending before the trial court when it granted the extension on May 1. We, however, find plaintiff's reliance on Spurgeon unpersuasive, as Spurgeon is readily distinguishable from the present instance by the fact that defendants' motion to recover costs and motion to strike lis pendens were not posttrial motions directed against the judgment.

A final judgment or order is a determination by the trial court on the issues presented by the pleadings that ascertains and fixes absolutely and finally the rights of the parties in the case. Berger v. Matthews, 216 Ill.App.3d 942, 944, 160 Ill.Dec. 273, 576 N.E.2d 1227 (1991). In other words, the judgment is final if it decides the litigation on the merits such that the only thing remaining is to proceed with the execution of the judgment. Brown & Kerr, Inc. v. American Stores Properties, Inc., 306 Ill.App.3d 1023, 1027-28, 240 Ill.Dec. 117, 715 N.E.2d 804 (1999). Where a motion seeks to satisfy, rather than modify, a judgment, it is not a posttrial motion within the ambit of section 2-1202. Star Charters v. Figueroa, 192 Ill.2d 47, 48, 248 Ill.Dec. 284, 733 N.E.2d 1282 (2000).

Defendants' first motion sought to strike the lis pendens filing on Lucy's home in Naperville. Under the lis pendens filing, a potential purchaser of Lucy's home would be bound by the result of the litigation as if he or she had been a party from the outset. See First Midwest v. Pogge, 293 Ill.App.3d 359, 363, 227 Ill.Dec. 713, 687 N.E.2d 1195 (1997). By virtue of this motion, defendants sought to "satisfy" the judgment entered on March 19 by striking the lis pendens filing that prevented them from selling Lucy's home. See Kim v. Alvey, Inc., 322 Ill.App.3d 657, 666, 255 Ill.Dec. 267...