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02/26/88 In Re Estate of Thomas Robert Hopkins

February 26, 1988


Before undertaking a Discussion of these contentions, however, we consider the estate's argument that we do not have jurisdiction of this appeal because the order appealed from was not a final order. The estate points out that a complaint should be dismissed with prejudice only if it is obvious that, even after amendment, it cannot state a cause of action. (See Fanning v. Lemay (1966), 78 Ill. App. 2d 166, 172, 222 N.E.2d 815, rev'd in part on other grounds (1967), 38 Ill. 2d 209, 230 N.E.2d 182.) It then reasons that, since petitioner never had an opportunity to amend, the court's order dismissing the petition must have been without prejudice and is therefore not a final, appealable order. We disagree.


HOPKINS, Petitioner-Appellant v.

TERRI-BETH BROWN, Independent Ex'r of the Estate of Thomas

Robert Hopkins, Deceased, Respondent-Appellee)

520 N.E.2d 415, 166 Ill. App. 3d 652, 117 Ill. Dec. 254 1988.IL.264

Appeal from the Circuit Court of Du Page County; the Hon. S. Keith Lewis, Judge, presiding.


PRESIDING JUSTICE LINDBERG delivered the opinion of the court. INGLIS and NASH, JJ., concur.


Petitioner, Nancy L. Hopkins, filed a petition in the circuit court to set aside an antenuptial agreement between her and her deceased husband, Thomas Hopkins (Thomas). Terri-Beth Brown, executor of the estate of Thomas Hopkins, filed a motion to dismiss the petition. The court granted Brown's motion, and petitioner appeals, contending that her petition set forth sufficient facts to state a cause of action to void the agreement.

Petitioner and the decedent married on April 17, 1982. The day before, April 16, they had signed an antenuptial agreement which provided that each party would retain his or her separate property and would not have any rights to the estate or property of the other when the marriage was terminated by death or legal proceedings. Schedules of each party's separate property were attached to the agreement, although the agreement provided that these schedules were not exhaustive and that "while the property referred to herein includes the scheduled property, it is not limited to such scheduled property." According to the allegations of the petition, the agreement was prepared by Thomas' attorney, and petitioner first saw the agreement when she was asked to sign it on the evening of April 16, in the attorney's office. Petitioner did not have an attorney with her to review the agreement and had not been advised to have one present. The petition alleges, and the estate does not dispute, that the schedule of Thomas' assets failed to list two assets: a United States Savings Bond worth approximately $19,000 and a Borg-Warner corporate pension plan which paid a monthly benefit of $463.

Thomas died November 30, 1985. Petitioner filed her petition to set aside the agreement on March 11, 1987, claiming that she did not understand the nature and effect of the agreement at the time she signed it. She alleged that she executed the agreement in reliance on representations of Thomas and his attorney without fully understanding her rights and obligations. On March 20, 1987, Brown filed a motion to dismiss the petition. The motion did not specify whether it was being brought pursuant to section 2-615 or section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-615, 2-619). Although the motion contained extraneous material which was not directed to the four corners of the petition, the main thrust of the motion was to challenge the legal sufficiency of the petition. The court decided the motion as if it had been brought pursuant to section 2-615, and, on appeal, both parties treat the motion as having been brought under that section. Thus we consider the parties' contentions pursuant to the standards applicable to section 2-615 motions.

Generally an appellate court can review only final orders. (Branch v. European Autohaus, Ltd. (1981), 97 Ill. App. 3d 949, 951, 424 N.E.2d 6.) The appealability of an order is determined by its substance rather than its form. (Branch, 97 Ill. App. 3d at 951-52.) Where a dismissal is based upon a determination that the complaint is insufficient to state a cause of action as a matter of law, rather than upon technical defects in the complaint, then the order is final and appealable by its very nature. A general dismissal with no right to amend, and no request for leave to amend, is a final, appealable order. (Branch, 97 Ill. App. 3d at 952; Bates v. Ulrich (1976), 38 Ill. App. 3d 203, 204, 347 N.E.2d 286. But see Davies v. Martel Laboratory Services, Inc. (1987), 157 Ill. App. 3d 686, 510 N.E.2d 1119 (Sullivan, J., Dissenting).) The view of the majority in Davies appears to require the plaintiff to state specifically in the trial court his intention to stand on his complaint. As the Dissent pointed out, however, such an interpretation is inconsistent with prior cases, such as Bates v. Ulrich (1976), 38 Ill. App. 3d 203, 347 N.E.2d 286, which simply held that a general dismissal which was not followed by a request to amend was a final, appealable order and did not require a specific declaration by the plaintiff that he wished to stand on the complaint. We decline to follow what we perceive to be the majority view in Davies and, instead, follow the holdings of Branch and Bates. Nor is an order deprived of finality merely because it does not include the words "with prejudice." Bond v. Dunmire (1984), 129 Ill. App. 3d 796, 801, 473 N.E.2d 78.

In Fanning, the appellate court stated that a complaint should be dismissed with prejudice "only if it is apparent that even after amendment, if leave to amend is sought, that no cause of action can be stated." (Emphasis added.) (Fanning, 78 Ill. App. 2d at 172.) In the instant case, it is apparent that petitioner never requested leave to amend in the trial court. Even in this court, she does not ask for a remand to permit amendment. In Jarvis v. Herrin City Park District (1972), 6 Ill. App. 3d 516, 285 N.E.2d 564, the court held that where the plaintiff "apparently" had elected to stand on her complaint, she was entitled to have its legal sufficiency reviewed on appeal. (Jarvis, 6 Ill. App. 3d at 523; see also People ex rel. Jones v. Leviton (1945), 327 Ill. App. 309, 314-15, 64 N.E.2d 195; cf. Goldstein v. Lustig (1987), 154 Ill. App. 3d 595, 603, 507 N.E.2d 164.) We hold that ...

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