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In re Marriage of King

December 18, 2003

IN RE MARRIAGE OF ALICE KING AND SAMUEL KING, APPELLEE (KENNETH SWIATEK ET AL., APPELLANTS).


The opinion of the court was delivered by: Justice Garman

UNPUBLISHED

Docket No. 95878-Agenda 33-September 2003.

In September 2000, the home of Samuel King was sold by the sheriff of Cook County in an execution sale and a deed was issued to the purchasers in 2001. The circuit court subsequently vacated the sale and the purchasers appealed. The appellate court affirmed, finding that the order on which the lien on the real estate was based was not a final order. We granted the purchasers' petition for leave to appeal. 177 Ill. 2d R. 315(a).

I. BACKGROUND

In 1997, Alice King petitioned for the dissolution of her marriage to Samuel King. The Muller Law Firm represented Samuel. In March 1998, Muller sought to withdraw as counsel. That motion was granted in July 1998 and Samuel acted pro se thereafter. Muller filed a petition for fees against Samuel. On January 5, 1999, the dissolution action came before the circuit court for final hearing. Although the record does not contain any transcript of that hearing, the court entered two orders. One order disposed of all remaining issues in the Kings' dissolution proceeding and denied Alice's petition for contribution to her attorney fees. No finding was made as to contribution on behalf of Samuel. In a separate order entered following a hearing on Muller's petition for fees, the court awarded Muller a judgment against Samuel in the amount of $4,380. The court made a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) and specified that the amount of the judgment "shall be paid directly to the Muller firm, Ltd. from one of Mr. King's bank accounts currently restrained." The final judgment of dissolution of marriage was entered on February 5, 1999. That judgment awarded the marital home in Chicago to Samuel. The judgment also denied the requests of Samuel and Alice for contribution from the other for attorney fees. The judgment further contained the following provision: "The Court entered a Judgment against Samuel King and in favor of The Muller Firm on January 5, 1999 in the amount of $4700.00 $4380.00. Said sum shall be paid out of the accounts listed in Section 2.2(a), out of Samuel King's assets." Section 2.2(a) of the February 5, 1999, judgment listed the assets awarded to Samuel, which included two bank accounts. The record shows that counsel for Alice informed the court on that date that Samuel had advised counsel of his withdrawal of funds from the accounts. As a result, the court ordered the balances on all of Samuel's accounts to be paid over to Alice.

Muller began proceedings to collect on its judgment. On February 9, 1999, Muller filed citations to discover assets directed to three different banks. The citations were based upon the January 5, 1999, judgment for attorney fees. It appears that Muller received partial satisfaction of its judgment through these efforts. In March 1999, Muller filed a citation to discover assets against Samuel, indicating that $1,620.32 plus costs of $195 remained unsatisfied. Muller filed a memorandum of judgment with the county recorder's office based upon the January 5, 1999, judgment for attorney fees. On April 13, 2000, the county sheriff issued a levy on Samuel's residential real estate. The property had been previously appraised at $80,000. A sale of the property was conducted on September 7, 2000. Muller placed the highest bid at $25,000. Appellant Kenneth Swiatek placed the next highest bid at $23,300. The sheriff accepted Swiatek's bid and a certificate of sale was issued on September 15, 2000, to Swiatek and Jim Finnegan. The certificate was assigned on December 7, 2000, to Swiatek, Finnegan, and Francisco Javier Iniguez, who are the appellants in this case (referred to hereafter, collectively, as Swiatek). On March 9, 2001, a sheriff's deed was issued to the purchasers following expiration of the statutory redemption period.

Samuel retained an attorney, who filed a petition to vacate the sale. The trial court denied that petition. On September 19, 2001, Samuel was adjudicated a disabled adult and appellee, Patrick T. Murphy, Cook County public guardian (guardian), was appointed temporary guardian of Samuel's estate and person. The guardian filed a motion for reconsideration of Samuel's petition to vacate the sale. That motion alleged that Samuel suffered from various physical and mental infirmities that rendered him incapable of understanding the nature, significance, or legal effect of the proceedings for the execution sale of his home. The motion also identified several alleged irregularities in the sale, including that (1) the January 5, 1999, attorney fees order, pursuant to which the sale was made, limited collection of the judgment to certain of Samuel's accounts and did not authorize a levy on real estate; (2) the notice of the sale was not posted in three public places as required by section 12-115 of the Code of Civil Procedure (Code) (735 ILCS 5/12-115 (West 2000)); (3) 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)); (4) the certificate of sale was not sold to the highest bidder; (5) the sale was not approved by the court pursuant to section 12-144.5 of the Code (735 ILCS 5/12-144.5 (West 2000)); (6) Samuel was not served with the levy; (7) the levy reflects inconsistent dates; and (8) there are two inconsistent receipts of sale, both of which are unsigned and undated and do not include the bid amount or the resulting surplus to which Samuel would be entitled. Following arguments of counsel, the trial court entered an order granting the motion for reconsideration. The court subsequently denied Swiatek's motion for reconsideration of that order. The appellate court affirmed the trial court, holding that the January 5, 1999, attorney fee order was interlocutory in nature and not final or appealable until the judgment of dissolution of marriage was entered.

The court noted that the trial court made specific reference to the January 5 order in the February 5, 1999, dissolution judgment and it modified the former order by deleting the restriction on collecting the attorney fee award from Samuel's restrained bank accounts and allowing collection from any of Samuel's assets. Thus, according to the appellate court, the February 5, 1999, judgment superceded the January 5, 1999, order. The appellate court noted that the lien on Samuel's real estate had been recorded based upon the January 5, 1999, order. It concluded that a valid lien was not created. 336 Ill. App. 3d 83, 90-91.

II. ANALYSIS

A. Motion to Strike Portions of the Guardian's Brief

Prior to addressing the merits of this appeal, we consider Swiatek's motion, ordered taken with the case, seeking to strike portions of the guardian's brief for violation of Supreme Court Rule 341 (188 Ill. 2d R. 341). Swiatek first argues that the guardian's brief violates Rule 341(a) (188 Ill. 2d R. 341(a)), which states that footnotes, if any, shall be used sparingly. Swiatek contends that the guardian's brief contains 40 footnotes, most of which contain argument that should be properly incorporated into the brief. A review of the footnotes shows that many of them do in fact contain argument and citation of authority. This material properly belongs in the body of the guardian's brief. The inclusion of 40 footnotes, particularly where many of them contain argument and citation of authority, is a serious violation of Rule 341(a). Accordingly, we grant this portion of Swiatek's motion and strike the footnotes from the guardian's brief.

Swiatek next argues that the "Introduction" section of the guardian's brief violates Rule 341(e)(2) (188 Ill. 2d R. 341(e)(2)), which requires the inclusion of an introductory paragraph stating (1) the nature of the action and of the judgment appealed from, (2) whether the judgment is based on a jury verdict, and (3) whether any question is raised on the pleadings. Swiatek notes that the guardian's introduction consists of a page and a half of material, much of which is argumentative. Although we agree that this section of the guardian's brief goes beyond the "introductory paragraph" envisioned by Rule 341(e)(2), we do not find this violation to be so serious as to warrant striking this section of the brief. We, therefore, deny this portion of Swiatek's motion to strike.

Next, Swiatek seeks to strike the portion of the guardian's brief that sets forth the issues presented for review in this appeal as a violation of Rule 341(e)(3) (188 Ill. 2d R. 341(e)(3)). The rule contemplates that issues will be stated concisely and without citation of authority. The rule gives examples of appropriate statements of an issue. The guardian's brief contains two numbered issues. However, within the first issue, he identifies seven separate issues regarding alleged irregularities in the sale of Samuel's home. We do not find this violation to be so serious as to warrant the striking of the statement of issues and we deny this portion of Swiatek's motion.

Swiatek also argues that the guardian has violated Rule 341(e)(6) (188 Ill. 2d R. 341(e)(6)), which requires the statement of facts to contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment. Swiatek contends that the guardian has included in his statement of facts matters not necessary for the disposition of this appeal, namely, the 2001 proceeding in which Samuel was declared a disabled adult. However, we note that the parties disagreed in the appellate court as to the grounds upon which the trial court rested its decision granting the guardian's motion for reconsideration. The guardian's inclusion of the disputed matters in his statement of facts comports with his view of the ...


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