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Yardley v. Yardley

OPINION FILED OCTOBER 8, 1985.

NANCY P. YARDLEY, INDIV. AND AS ADM'R OF THE ESTATE OF STEVEN YARDLEY, DECEASED, PLAINTIFF-APPELLANT,

v.

STANTON YARDLEY ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County; the Hon. Lawrence D. Inglis, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

Plaintiff, Nancy P. Yardley, individually and as administrator of the estate of her husband, Steven Yardley, has brought these appeals from an order of the trial court under section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-615) which dismissed with prejudice counts II through VI of her six-count third-amended complaint against defendants, Stanton Yardley, Jerry Yardley, and the Northern Trust Company (the Northern), individually and as trustees. The dismissed counts sought various remedies against defendants in connection with their administration of certain trusts. Count I, which survived the order appealed from, sought actual and punitive damages from Stanton and Jerry Yardley for conversion of certain property which had belonged to plaintiff's decedent before he died.

Plaintiff filed her first notice of appeal, No. 84-487, within 30 days after the trial court denied her motion to vacate the dismissal but before judgment was entered on count I. When the trial judge denied plaintiff's motion to vacate the dismissal, he refused to make a finding under Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)) that there was no just reason for delaying enforcement or appeal of the order of dismissal. The Northern filed a motion to dismiss that appeal as premature which was taken with the case.

At oral argument of that appeal, counsel for plaintiff informed this court that while that appeal was pending, count I had proceeded to a jury trial, and that within the week prior to oral argument, judgment was entered in his client's favor. Counsel stated that he intended to file a new notice of appeal from the dismissal order. Counsel did file the second notice of appeal, No. 85-435, in the trial court three days later.

Initially, this court on its own motion issued an order dismissing the second appeal because of plaintiff's failure to file a docketing statement. Subsequently, again on our own motion, we issued an order recalling and vacating that order of dismissal. The appeal was taken under advisement without further argument or filing of briefs, and the two appeals were consolidated for decision.

Before addressing the merits of the trial court's order dismissing counts II through VI of the complaint, we will consider the Northern's motion to dismiss appeal No. 84-487. The Northern maintains that because the trial court refused to make a finding under Rule 304(a) that there was no just reason for delaying enforcement or appeal of the order dismissing counts II through VI of the complaint, that order was not appealable until judgment was entered on the remaining count. The Northern contends that plaintiff's notice of appeal in No. 84-487, which was filed before judgment was entered on that count, is for that reason insufficient to confer jurisdiction on this court. Plaintiff does not dispute that Rule 304(a) states the general rule that final judgments as to fewer than all of the claims are not appealable in the absence of such finding. Plaintiff, however, maintains that her first notice of appeal was timely filed under an exception to the general rule set forth in Rule 304(b)(1) (103 Ill.2d R. 304(b)(1)).

• 1 The Northern is correct that in general under Rule 304(a) a judgment which adjudicates fewer than all the claims is not appealable in the absence of a finding by the trial court that there is no just reason for delaying enforcement or appeal. In the absence of such a finding, a notice of appeal filed before judgment is entered on all the claims is insufficient to confer jurisdiction on the reviewing court. Farmers State Bank v. Thomas (1983), 119 Ill. App.3d 854, 457 N.E.2d 134.

Rule 304(b)(1), upon which plaintiff is relying, provides:

"The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:

(1) A judgment or order entered in the administration of an estate, guardianship, conservatorship, or similar proceeding which finally determines a right or status of a party." (103 Ill.2d R. 304(b)(1).)

Plaintiff acknowledges that the order she is attempting to appeal was not entered in the administration of an estate or guardianship, but she contends that it was entered in a "similar proceeding." This argument is unconvincing.

The Committee Comments to Rule 304(b) state:

"Subparagraph (1) applies to orders that are final in character although entered in comprehensive proceedings that include other matters. Examples are in order admitting or refusing to admit a will to probate, appointing or removing an executor, or allowing or disallowing a claim." (Ill. Ann. Stat., ch. 110A, par. 304, Committee Comments, at 157 (Smith-Hurd 1985).)

In In re Estate of Kime (1981), 95 Ill. App.3d 262, 419 N.E.2d 1246, the court discussed the purpose of Rule 304(b)(1). Initially, the court noted that under the rule orders in estate proceedings which finally determine the right or status of a party must be appealed within 30 days from entry of the order irrespective of whether a finding under Rule 304(a) is made. The court then stated:

"A central reason behind making the time for appeal of such orders mandatory, and not optional, is that certainty as to some issues is a necessity during the lengthy procedure of estate administration. Little imagination is needed to conjure up the intolerable consequences of permitting a party, at his option, to wait until an estate administration is concluded before appealing an order, entered perhaps several years previously, which denied a motion to remove an executor or allowed a claim against the estate. In such circumstances, were an appellant successful, then the entire administration might have to be begun again. Thus, in the interests of efficiency and the sound and practical administration of estates, orders in estate proceedings must be appealed within 30 days from entry when they finally determine the right or status of a party, even though they are preliminary to a final settlement of estate proceedings." 95 Ill. App.3d 262, 268.

The trusts involved in this case were not being administered in comprehensive court proceedings like estate or guardianship proceedings. They were being administered privately, out of court, by defendant trustees. Moreover, the trustees were not court-approved administrators required to settle various claims, and to make a final accounting to the court. Accordingly, the action filed in the trial court was not a proceeding similar to the administration of an estate or guardianship. Rule 304(b)(1) is inapplicable to this case.

Because the trial court refused to make the finding required by Rule 304(a), the order dismissing counts II through VI of the complaint was not appealable until judgment was entered on count I. Plaintiff's notice of appeal in No. 84-487, which was filed before judgment was entered on count I, was, therefore, insufficient to confer jurisdiction on this court, and the Northern's motion to dismiss that appeal is allowed.

• 2 This court does, however, have jurisdiction to review the propriety of the order dismissing plaintiff's complaint under the notice of appeal in No. 85-435 because it was filed within 30 days after judgment was entered on count I. (94 Ill.2d R. 303. See Kubala v. Dudlow (1958), 17 Ill. App.2d 463, 150 N.E.2d 643.) Although this court initially entered an order dismissing ...


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