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In re Estate of York

Court of Appeals of Illinois, First District, Third Division

March 31, 2015

In re ESTATE OF MARY M. YORK,
v.
ROSEMARY S. MULRYAN, Respondent-Appellee LAGENLA BAILEY, Executor, Petitioner-Appellant,

Page 683

[Copyrighted Material Omitted]

Page 684

Appeal from the Circuit Court of Cook County. No. 08 P 5066. The Honorable John J. Fleming, Judge Presiding.

FOR PETITIONER-APPELLANT: Todd C. Lyster & Associates, Chicago, IL, OF Todd C. Lyster.

FOR RESPONDENT-APPELLEE: Charles A. Janda, Chicago, IL, OF Charles A. Janda.

PRESIDING JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Lavin and Hyman concurred in the judgment and opinion.

OPINION

PUCINSKI, PRESIDING JUSTICE.

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[¶1] The case before us serves as a cautionary tale to litigants to adhere to Illinois Supreme Court Rule appellate filing deadlines, to timely file requests for extensions of time with good cause shown, and to specify all grounds of appeal in the notice of appeal.

[¶2] Respondent-appellee belatedly filed a motion to dismiss this appeal, arguing that the order dismissing a count with prejudice was not immediately appealable under Illinois Supreme Court Rule 304(b)(1) (Ill. S.Ct. R. 304(b)(1) (eff. Feb. 26, 2010)) and belatedly sought an extension of time to file a response brief, only after we entered an order taking the appeal under consideration on the appellant's brief only. We reject appellee's argument regarding jurisdiction, as the court's dismissal order disposed of an entire claim related to certain property in the probate proceedings, thereby satisfying Rule 304(b)(1). We also reject appellee's argument that she did not timely file any response because she felt the lack of jurisdiction was " obvious." Regardless of how " obvious" a litigant deems an argument, it may be unsuccessful, as in this case, and it still must be timely made before this court. Because appellee provided no good cause for why she did not timely file her motion or seek an extension of time to file her appellate brief pursuant to Illinois Supreme Court Rule 343(c) (Ill. S.Ct. R. 343(c) (eff. July 1, 2008)), we abide by our prior order and consider this appeal on appellant's brief only.

[¶3] The appellant, however, does not fare any better. Appellant devoted half of her argument in her appellate brief to the dismissal of Count I of her citation to recover assets (for breach of fiduciary duty) pursuant to section 2-619 (735 ILCS 5/2-619 (West 2012)) but did not include review of the dismissal of that count in her notice of appeal. Instead, the appellant specified only the dismissal of Count II (for fraud) pursuant to section 2-615 in her notice of appeal. Because of appellant's failure to specify the dismissal of Count I in her notice of appeal -- apparently the intended ground of her appeal -- we lack jurisdiction to review it. The majority of appellant's argument on appeal was for naught.

[¶4] We further hold that we are without jurisdiction to review appellant's other ground of error: an order denying appellant's motion to strike an affidavit used in support of appellee's section 2-619 portion of her motion to dismiss in the circuit court. The only ground specified in appellant's notice of appeal was the dismissal of Count II, and that count was dismissed pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)). The court's order denying a motion to strike an affidavit in support of the section 2-619 portion of appellee's motion to dismiss could not have been a step in the procedural progression to a section 2-615 dismissal because consideration of affidavits is not allowed in ruling on section 2-615 dismissals. Thus, we do not have jurisdiction to review this order either, and the other half of appellant's argument regarding the order denying her motion to strike the affidavit also was for naught. Where the only portion of judgment order appealed from is the dismissal of a count pursuant to section 2-619, a step in the procedural progression of the dismissal of a count pursuant to section 2-619 is not reviewable. Not only are we without jurisdiction to review judgments not specified in the notice of appeal, but we are without jurisdiction to review all interlocutory

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orders constituting steps in the procedural progression toward those unspecified judgments.

[¶5] As to the only ground of appeal specified in appellant's notice of appeal, the dismissal of Count II for fraud pursuant to section 2-615, appellant failed to include any argument, thereby waiving it pursuant to Supreme Court Rule 341(h)(7) (Ill. S.Ct. R. 341(h)(7) (eff. Feb. 6, 2013)). We do not deem the notice of appeal as a clerical error, as the notice of appeal specified not only Count II, rather than Count I, but also specified the grounds of dismissal as pursuant to section 2-615, which was the basis for dismissal of Count II and not Count I. As such, we presume the court's judgment was not in error and we affirm and remand for further proceedings consistent with our opinion.

[¶6] BACKGROUND

[¶7] We provide a brief summary of the factual background of this action. The decedent, Mary York, and respondent-appellee Rosemary Mulryan, were law firm partners in the firm of Mulryan & York from 1988 until York died on January 23, 2008. York was the primary income generator for the firm and was responsible for the daily operation of the firm. York handled all the real estate transactions for the firm and worked longer hours than Mulryan.

[¶8] According to the executor's, statement of facts, on July 20, 2007, at Mulryan's request, York loaned Mulryan $60,000 so that Mulryan could purchase real estate in Cassopolis, Michigan. According to the loan agreement, The loan was at a rate of 6% interest by way of York's Schwab account to Meridian Title for Mulryan. York was to have a lien on the Michigan property until the loan was repaid. Mulryan made four payments of $506.31 each for a total of $2,025.24 to York.

[¶9] York died on January 23, 2008, and Mulryan stopped making any further payments on the loan, claiming that the balance owed on the loan became a " gift." Mulryan retained the balance of $74,730.83 and failed to repay the balance of the loan plus the 6% interest to York's estate. Mulryan also took a $5,000 distribution from the firm's account after York's death.

[¶10] On June 5, 2009, the executor of York's estate filed a citation to discover assets directed to Mulryan. The executor sought recovery of the balance of the $60,000 " loan," plus interest, as well as a distribution of $5,000 taken out of the firm's account by Mulryan after York's death. On July 14, 2009, Mulryan filed her appearance. On April 30, 2012, the executor filed an amended petition for issuance of citation to discover assets and for issuance of a citation to recover assets, directed to Mulryan, alleging Count I for breach of fiduciary duty, Count II for fraud, Count III for conversion, and Count IV for embezzlement. On June 14, 2012, the court entered an order amending and converting the citation to discover assets to a citation to recover assets.

[¶11] On October 23, 2012, Mulryan filed a combined motion to dismiss pursuant to section 2-619.1 of the Illinois Code of Civil Procedure, with an attached affidavit in support of her motion. On December 6, 2012, the executor filed her response to Mulryan's motion to dismiss, as well as a motion to strike Mulryan's affidavit. Mulryan filed a response to the executor's motion to strike the affidavit on January 4, 2013, and on January 25, 2013 the executor filed her reply. The court denied ...


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