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In re Marriage King

December 18, 2002


Appeal from the Circuit Court Cook County. Honorable James G. Donegan, Judge Presiding

The opinion of the court was delivered by: Presiding Justice South

In the underlying action, Alice King, who is not a party to this appeal, filed a petition for dissolution of marriage from her husband of 56 years, Samuel King (appellee). The Muller Law Firm filed an appearance on behalf of appellee in the dissolution proceedings. The Muller Law Firm subsequently filed a motion to withdraw from representing appellee, which was granted on July 31, 1998, and appellee proceeded pro se. The court also granted the Muller Law Firm leave to file a petition for setting final fees.

On January 5, 1999, the trial court entered an order pertaining to the petition for attorney fees which reads in pertinent part:

"Judgment is entered in favor of the Muller Firm, Ltd. and against Samuel King in the amount of $4,380.00 including costs for reasonable and necessary attorney's fees in connection with this litigation, with no just cause existing to delay appeal or enforcement hereof. Said sum shall be paid directly to the Muller Firm Ltd. from one of Mr. King's bank accounts currently restrained***."

One month later, on February 5, 1999, a judgment for dissolution of marriage was entered. The order allocated all of the marital property, with the marital residence going to appellee. With regard to attorney fees, the judgment read in pertinent part with the following stricken words:

"8.2 The Court entered Judgment against Samuel King and in favor of The Muller Firm on January 5, 1999 in the amount of $4700.00 $4,380.00. Said sum shall be paid out of the accounts listed in Section 2.2(a) out of, Samuel King's assets."

On February 9, 1999, the Muller Law Firm filed a citation to discover assets with several of appellees banking institutions and recorded the trial court's order of January 5, 1999, with the Cook County recorder of deeds so as to create a lien against appellee's home. On April 14, 2000, the Muller Law Firm presented to the Cook County sheriff a direction to levy appellee's property to be sold to satisfy the $4,350 judgment. A levy was issued on appellee's property bearing a date stamp of April 13, 1999. At the time the levy was issued, appellee's home had an appraisal value of $80,000.

On September 7, 2000, the sale of appellee's property was conducted. The Muller Law Firm placed a bid of $25,000. The second highest bid was made by Kenneth Swiatek for $23,300. Swiatek, James Finnegan and Francisco Javier Iniguez are the appellants in this case. Appellants' bid was ultimately accepted, a certificate of purchase was issued on September 15, 2000, and an assignment of certificate of sale was issued to appellants on December 7, 2000. On March 9, 2001, a deed was issued to appellants following the expiration of the redemption period.

Appellee subsequently sought legal representation and Kimberly Anderson filed a petition to vacate the sheriff's sale on behalf of appellee, which was denied on August 29, 2001. On September 19, 2001, the probate division appointed the Cook County public guardian as temporary guardian of appellee's estate and assets. On September 27, 2001, the public guardian appeared on appellee's behalf and filed a motion to reconsider the trial court's denial of appellee's petition to vacate the sheriff's sale. In addition to arguing that appellee was mentally and physically impaired, the public guardian also argued that the January 5 order required that the $4,380 judgment be satisfied from appellee's bank accounts instead of by means of placing a levy on his home; that the notice of levy was not posted in three public places pursuant to section 12-115 of the Code of Civil Procedure (Code) (735 ILCS 5/12-115 (West 2000)); that the report of commissioners was not signed under oath pursuant to sections 12-910 and 12-911 of the Code (735 ILCS 5/12-910, 12-911 (West 2000)); that the certificate of sale was not sold to the highest bidder; that the sale was never approved by the court pursuant to sections 12-144.5 and 12-145 of the Code (735 ILCS 5/12-144.5, 12-145 (West 2000)); that the levy reflects inconsistent dates; and finally, that there are two inconsistent receipts of sale, which are unsigned and undated and do not include a bid amount or the resulting surplus to which appellee is entitled.

After a hearing on appellee's motion to reconsider was held, the trial court entered an order granting appellee's motion on November 19, 2001. Appellants filed a motion to reconsider the trial court's order, which was denied on January 23, 2002. In their notice of appeal, appellants request the reversal of the trial court's November 19 order granting the public guardian's motion to reconsider, and the court's order of January 23, 2002, denying appellants' motion to reconsider the trial court's order of November 19.

Appellants raise two issues on appeal: (1) whether the portion of the trial court's January 5, 1999, judgment order granting attorney fees to the Muller Law Firm, which purports to limit enforcement of the judgment for attorney fees to certain bank accounts of appellee, is valid or merely surplusage; and (2) whether a hearing pursuant to section 12-144.5 of the Code (735 ILCS 5/12-144.5 (West 2000)), requiring a judicial confirmation of a sale, where no hearing was required under the prior provisions, applies to a sale held prior to the effective date of the statute where the redemption period ended after the statute became effective. A notice of appeal confers jurisdiction on an appellate court to consider only the judgments or parts thereof specified in the notice of appeal. Mimica v. Area Interstate Trucking, Inc., 250 Ill. App. 3d 423, 425, 620 N.E.2d 1328 (1993). A notice of appeal is to be liberally construed and an appeal from a subsequent final judgment will draw into question all prior non-final rulings and final but non-appealable orders that produced the judgment. First National Bank of Elgin v. St. Charles National Bank, 152 Ill. App. 3d 923, 930, 504 N.E.2d 1257 (1987). "A notice of appeal need not designate a particular order to confer jurisdiction, as long as the order which is specified directly relates back to the judgment or order from which review is sought." Taylor v. Peoples Gas Light & Coke Co., 275 Ill. App. 3d 655, 659, 656 N.E.2d 134 (1995). "An unspecified judgment is reviewable if it is a 'step in the procedural progression leading to the judgment specified in the notice of appeal.' " Taylor, 275 Ill. App. 3d at 659, quoting Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 435, 394 N.E.2d 380 (1979).

In its notice of appeal, appellants appeal the order of November 19, 2001, granting appellee's motion to reconsider. Therefore, we will address appellants' issues on appeal in the context of the trial court's grant of appellee's motion to reconsider.

Furthermore, we reject appellee's contention that this case is moot as there is a definite controversy between the various parties. See First National Bank of Waukegan v. Kusper, 98 Ill. 2d 226, 233-34, 456 N.E.2d 7 (1983) (holding that, under Illinois law, a matter is considered moot when no controversy remains or the issues involved cease to exist, thereby rendering it impossible for the court to grant effective relief to the complaining party).

A motion to reconsider may be brought pursuant to section 2-1203 or 2-1401 of the Code. 735 ILCS 5/2-1203 (West 1998); 735 ILCS 5/2-1401 (West 2000). The purpose of a motion to vacate under section 2-1203 is to alert the trial court to errors it has made and to afford an opportunity for their correction. In re Marriage of Sanborn, 78 Ill. App. 3d 146, 396 N.E.2d 1192 (1979). Whether to grant or deny a motion to reconsider is within the sound discretion of the trial court. In re Marriage of Potter, 88 Ill. App. 3d 606, 609-10, 410 N.E.2d 999 (1980). Whether a trial court has abused its discretion turns on whether the court's refusal to vacate " 'violates the moving party's right to fundamental justice and ...

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