In re Estate of Kunsch

Case Date: 08/06/2003
Court: 2nd District Appellate
Docket No: 2-02-0756 Rel

No. 2--02--0756


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


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).

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Appeal from the Circuit
Court of Du Page County.





No. 99--P--885




Honorable
Ronald B. Mehling,
Judge, Presiding.

JUSTICE BOWMAN delivered the opinion of the court:

This appeal arises from a cause of action seeking to declarea will and trust void. Under a will and trust executed on July 16,1997, Lucy J. Kunsch, deceased, disinherited two of her fourchildren. Lucy's new will and trust provided that upon her deathdefendants, Sara Jane Kunsch and Thomas J. Kunsch, would be thesole beneficiaries of her estate valued at over $1 million. Plaintiff, John W. Kunsch, brought suit alleging that defendantshad unduly influenced their mother to change her will for theirbenefit and, consequently, disinherit plaintiff. Following atrial, a jury determined that the will and trust were valid. Plaintiff now appeals, challenging the propriety of the jury'sverdict. We find, however, that we are without jurisdiction toconsider plaintiff's appeal because he failed to initiate it byfiling 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 recovercosts and to strike lis pendens. Then, on April 18, 2002,plaintiff filed a motion requesting an extension of time to filehis posttrial motion. On May 1, 2002, the trial court ruled ondefendants' motions and also granted plaintiff 30 additional daysto file his posttrial motion. The trial court subsequently deniedplaintiff'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 appealmust be filed with the clerk of the circuit court within 30 daysafter the entry of the final judgment appealed from, or, if atimely post-trial motion directed against the judgment is filed,whether in a jury or nonjury case, within 30 days after the entryof the order disposing of the last pending post-judgment motion." 155 Ill. 2d R. 303(a)(1). Our supreme court demands strictcompliance with its rules governing appeals, and neither a trialcourt nor an appellate court has authority to excuse compliancewith the requirements mandated by such rules. Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 150 (1994); Clark v. Han, 272 Ill.App. 3d 981, 984 (1995). The timely filing of an appeal is notonly mandatory, but also provides the appellate court'sjurisdictional basis. See 155 Ill. 2d R. 301; see also Clark, 272Ill. App. 3d at 984.

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

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

In Kwak v. St. Anthony De Padua Hospital, 54 Ill. App. 3d 719,724-25 (1977), the court considered a situation similar to the onein this case. There, two judgments were at issue, dated January 26and January 29. Kwak, 54 Ill. App. 3d at 723. On February 23, theplaintiff filed a motion for an extension of time to file posttrialmotions attacking the judgments. Kwak, 54 Ill. App. 3d at 723. The trial court granted the plaintiff's request for additional timeon March 10, but only after the 30-day periods had already expiredon February 25 and 28. Kwak, 54 Ill. App. 3d at 723. Theappellate court held that the jurisdiction of the trial court couldbe extended beyond February 25 and 28 only if the extension of timewas allowed prior to these dates. Kwak, 54 Ill. App. 3d at 724. Furthermore, the court rejected the plaintiff's claim that she wasnot at fault because the trial court judge was unavailable to grantthe order. Kwak, 54 Ill. App. 3d at 724. In reply to thisargument, the appellate court stated that the plaintiff failed toavail herself of the remedial provision of Rule 303, allowing foran extension of time to file a notice of appeal. Kwak, 54 Ill.App. 3d at 725.

In a more recent case, the plaintiff in Trentman filed ninerequests for an extension of time that were proper and timely.Trentman, 333 Ill. App. 3d at 443-44. His tenth extension had tobe obtained by January 4, but the request was not filed untilJanuary 5. Trentman, 333 Ill. App. 3d at 443-44. Relying on Kwak,the court noted that both the request and the trial court's ordermust occur before the deadline. Trentman, 333 Ill. App. 3d at 444. Thus, after January 4 passed with no order entered, the trial courtlost jurisdiction to entertain any further motions for extension oftime or the plaintiff's posttrial motion. Trentman, 333 Ill. App.3d at 444.

Thus, when a trial court fails to allow an extension of timeto file a posttrial motion within the initial 30-day period, thereis no jurisdiction to later grant a plaintiff additional time or toconsider a posttrial motion attacking the final judgment. Trentman, 333 Ill. App. 3d at 443; Kwak, 54 Ill. App. 3d at 724. In this case, the trial court's May 1 order allowing for anextension of time was granted well beyond the 30-day periodmandated by section 2--1202, which commenced after the March 19judgment. Therefore, section 2--1202 precluded the trial courtfrom later granting plaintiff's request.

One exception to this rule is found in Spurgeon v. AltonMemorial Hospital, 285 Ill. App. 3d 703 (1996). In Spurgeon, aplaintiff failed to obtain a time extension to file a posttrialmotion until after the expiration of the 30-day period. Spurgeon,285 Ill. App. 3d at 707. Nonetheless, the court did not follow thereasoning in Kwak, finding it factually distinguishable. Spurgeon,285 Ill. App. 3d at 706. While the plaintiff in Spurgeon hadfailed to file a posttrial motion or obtain an extension of timewithin the 30-day period, the defendant had filed a posttrialmotion. Spurgeon, 285 Ill. App. 3d at 707. Thus, the courtdetermined that so long as any party's posttrial motion was stillpending, the underlying judgment was not final and the trial courtretained jurisdiction to grant the plaintiff an extension of time. Spurgeon, 285 Ill. App. 3d at 707.

Relying on Spurgeon, plaintiff contends that the trial courtretained jurisdiction to grant the order because defendants' March22 motions for costs and to strike lis pendens were still pendingbefore the trial court when it granted the extension on May 1. We,however, find plaintiff's reliance on Spurgeon unpersuasive, asSpurgeon is readily distinguishable from the present instance bythe fact that defendants' motion to recover costs and motion tostrike lis pendens were not posttrial motions directed against thejudgment.

A final judgment or order is a determination by the trialcourt on the issues presented by the pleadings that ascertains andfixes absolutely and finally the rights of the parties in the case.Berger v. Matthews, 216 Ill. App. 3d 942, 944 (1991). In otherwords, the judgment is final if it decides the litigation on themerits such that the only thing remaining is to proceed with theexecution of the judgment. Brown & Kerr, Inc. v. American StoresProperties, Inc., 306 Ill. App. 3d 1023, 1027-28 (1999). Where amotion seeks to satisfy, rather than modify, a judgment, it is nota posttrial motion within the ambit of section 2--1202. StarCharters v. Figueroa, 192 Ill. 2d 47, 48 (2000).

Defendants' first motion sought to strike the lis pendensfiling on Lucy's home in Naperville. Under the lis pendens filing,a potential purchaser of Lucy's home would be bound by the resultof 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 (1997). Byvirtue of this motion, defendants sought to "satisfy" the judgmententered on March 19 by striking the lis pendens filing thatprevented them from selling Lucy's home. See Kim v. Alvey, Inc.,322 Ill. App. 3d 657, 666 (2001). Therefore, it is incorrect tocharacterize defendants' motion to strike lis pendens as aposttrial motion directed against the judgment.

Defendants' second motion for costs incurred in defending the validity of Lucy's will and trust included costs related to thecourt appearance fee, a mediation fee, taking discovery andevidence depositions, and hiring expert witnesses. Generally, a"judgment or order is final even if there remains for determinationissues regarding costs." 4 C.J.S. Appeal & Error