Steinbrecher v. Steinbrecher

• Decision Date: 27 September 2001
• Docket Number: No. 89560., No. 89551
• Citation: 197 Ill.2d 514,759 N.E.2d 509,259 Ill.Dec. 729
• Parties: John STEINBRECHER et al., Appellants, v. Rosemary STEINBRECHER, Appellee.
• Court: Illinois Supreme Court

759 N.E.2d 509

197 Ill.2d 514

259 Ill.Dec. 729

John STEINBRECHER et al., Appellants, v. Rosemary STEINBRECHER, Appellee.

Nos. 89551, 89560.

Supreme Court of Illinois.

September 27, 2001.

Rehearing Denied December 3, 2001.

Bruce S. Terlep and Matthew D. Jacobson, of Swanson, Martin & Bell, Wheaton, for appellant John Steinbrecher.

Jerold S. Solovy, Barry Levenstam and Jeffrey T. Shaw, of Jenner & Block, Chicago, for intervenor-appellant Moser Enterprises, Inc. Rosemary C. Steinbrecher, Chicago, appellee pro se.

Justice FITZGERALD delivered the opinion of the court:

In November 1995, John Steinbrecher (John) filed suit under the Illinois partition act (Act) (735 ILCS 5/17-101 et seq. (West 1994)) against his two siblings, Jerome and Rosemary (Rosemary) Steinbrecher, to partition or sell three parcels of land located in Kendall County. At the close of the partition trial, the circuit court held that each sibling held an undivided one-third interest as tenants in common, but that the property could not be divided "without manifest prejudice." The circuit court ordered public sale of the entire property. Thereafter, the circuit court approved the offer of the highest bidder, Moser Enterprises, Inc. (Moser); confirmed the sale to Moser in open court; and directed that the deed be recorded in Moser's name. Rosemary never perfected a motion to stay judgment and filed her notice of appeal 49 days after the circuit court order. The appellate court determined that Rosemary's procedural errors did not bar her appeal. The appellate court vacated the sale of property to Moser and remanded to the circuit court for further proceedings. 312 Ill.App.3d 289, 244 Ill.Dec. 807, 726 N.E.2d 1118. We now reverse the judgment of the appellate court.

BACKGROUND

On January 21, 1991, Francis Steinbrecher died intestate, survived by his three children, John, Jerome, and Rosemary. As heirs and beneficiaries of the estate of Francis Steinbrecher, John, Jerome, and Rosemary held title as tenants in common to three separate land parcels situated in Kendall County, totaling 409 acres. In November 1995, John filed suit under the Illinois partition act against Jerome and Rosemary in order to partition, or sell in the event partitioning was infeasible, the property.

In August 1996, pursuant to the partition act the trial court appointed a real estate consultant as commissioner to "evaluate the feasibility of partitioning" the property.¹ This commissioner surveyed the property and prepared a written "Appraisal/Commissioner Report" for the court.

At the partition trial in August 1997, consistent with his report, the commissioner testified that the property was incapable of equitable partition-in-kind between the three heirs. He stated that the property consisted of three noncontiguous parcels with widely varied characteristics. For example, the property contained farmland and wooded acreage on a floodplain. Moreover, the location and man-made obstacles such as a railroad track, a county road, and a running creek, further prevented an equal three-way division of the property. Neither Jerome nor Rosemary presented evidence to the trial court to refute the commissioner's testimony.

After reviewing the evidence, the trial court ruled that John, Jerome, and Rosemary each held an undivided one-third interest as tenants in common, that the property could not be divided without manifest prejudice, and that the property should be sold at a public sale.

In 1998, the exclusive listing agent approved by the court listed the property for a price of $4.5 million. In August 1998, after the trial court was notified by the agent of three offers to purchase, the trial court approved the $3.5 million offer of the highest bidder, Moser. In open court on September 24, 1998, the trial court confirmed the sale, directed a quitclaim deed be recorded in Moser's name, and entered a Rule 304(a) finding (155 Ill.2d R. 304(a)) regarding the sale to Moser. Pursuant to the sale, monies were disbursed, including the IRS liens, marketing and advertising fees, the mortgage, closing costs, and attorney fees.

On September 25, 1998, Rosemary filed a pro se "Motion for Stay of Judgment Pending Appeal and Rehearing Re: Deposition" which she noticed for hearing on October 2, 1998. On October 2, the trial court continued the motion for hearing to October 30, 1998. The trial court then addressed Rosemary:

"THE COURT: * * * I told you a long time ago that I'm not going to hear this thing every other day. Just because you want to file a motion doesn't mean I'm going to hear it. I told you to file things once a month. We've set a date for a motion sometime later in this month.

* * *

Now, yet, you continually file motions. You continually get the—the Clerk's office has to bring this file down here. The other attorney has to come in. He was here all morning. And I've told you in the past I'm not going to hear this just because you want to file a motion and notice it up on whatever day you want to notice it up. Now, I will hear the—everything you have, whatever it is, on the next court date

* * *

Now if you do this again, I'm going to start imposing sanctions against you. We're not going to be disrupting everybody's life simply because you want to file a motion, especially when I've given you a date in the future.

ROSEMARY: Your Honor, the date in the future had nothing to do with this particular issue.

THE COURT: What difference does that make? It's [sic] court date where everybody is supposed to be here, correct? Do you think I'm going to sit here and have everybody come in here every day just because you want to file a motion and you want to be heard on this day because you happen to be available?

ROSEMARY: I thought time might be of the essence, in fairness to the parties.

THE COURT: I doubt, in this case, time is of the essence to anybody. As I said, do it again and I'm going to start imposing sanctions against you. Okay?"

On October 30, 35 days after the court's final judgment, Rosemary appeared for hearing on her stay of judgment motion. Additionally, Rosemary filed and presented for hearing a new motion, entitled "Motion to Declare Void the Sale of Property to Moser Enterprises, Inc." The trial court denied Rosemary's motion to void the sale and denied Rosemary's motion to stay the judgment. Rosemary never filed a motion with the appellate court to stay the judgment.

Despite the September 24, 1998, order granting right, title, and interest to Moser, Rosemary refused to vacate the Kendall County property. As a result, on October 30, 1998, Moser sought leave to intervene for the limited purpose of "enforc[ing] its right to possession." This was Moser's first appearance in the litigation. The trial court granted Moser's petition for leave to intervene, granted Moser's motion for possession, and ordered Rosemary to vacate the property on or before November 13, 1998.

On November 13, 49 days after Moser was granted exclusive possession of the property, Rosemary filed a notice of appeal. John moved to dismiss the appeal, arguing that the appellate court lacked jurisdiction because the notice of appeal was untimely and because the appeal was moot pursuant to the protections afforded third-party purchasers under Illinois Supreme Court Rule 305(j) (155 Ill.2d R. 305(j)).

The appellate court held that procedural errors did not bar Rosemary's appeal because the threat of sanctions voiced by the trial judge to Rosemary, a pro se litigant,² "were confusing and likely had the effect of keeping her from filing her motion" within the proper time period. 312 Ill. App.3d 289, 297, 244 Ill.Dec. 807, 726 N.E.2d 1118. By the term "her motion" the appellate court referred to Rosemary's October 30, 1998, "Motion to Declare Void the Sale," which it labeled a post-judgment motion. 312 Ill.App.3d at 297, 244 Ill.Dec. 807, 726 N.E.2d 1118. According to the appellate court, the October 30 post-judgment motion served to toll the period for appeal such that the notice of appeal filed on November 13, 1998, was timely. 312 Ill.App.3d at 297, 244 Ill.Dec. 807, 726 N.E.2d 1118. Additionally, the appellate court held that the issue was not moot because Moser's post-sale, post-judgment intervention on October 30, 1998, barred the application of Rule 305(j) and any protection it afforded nonparty purchasers. 312 Ill.App.3d at 297-98, 244 Ill.Dec. 807, 726 N.E.2d 1118. The appellate court then vacated the sale of the property and remanded for further proceedings to determine, again, whether the property could be partitioned without manifest prejudice. 312 Ill.App.3d at 305, 244 Ill.Dec. 807, 726 N.E.2d 1118.

Following entry of the appellate court judgment, Moser moved to intervene in order to file a petition for rehearing. On April 19, 2000, the appellate court granted Moser leave to intervene but denied its petition for rehearing. On May 24, 2000, Moser timely filed its petition for leave to appeal to this court. On July 5, 2000, John timely filed his petition for leave to appeal to this court. We granted the petitions and consolidated the appeals.

ANALYSIS

As an initial matter, John and Moser contend that the appellate court committed reversible error because it lacked jurisdiction due to Rosemary's failure to file a timely notice of appeal. Rosemary filed her notice of appeal on November 13, 1998, 49 days after the trial court entered its final judgment. They contend that the notice of appeal was untimely under Rule 303(a), and that her "Motion to Declare Void the Sale" filed on October 30, 1998, did not toll the time to file her notice of appeal because it was also untimely under section 2 1203(a) of the Code of Civil Procedure (155 Ill.2d R. 303(a); 735 ILCS 5/2-1203(a) (West 1998)). Moreover, they contend that even if the motion to void was timely, it did not toll the time to appeal because the motion was an insufficient post-judgment motion under section 2-1203(a). Andersen v. Resource...