2022 IL App (1st) 210013
Ill. App. Ct.2022Background
- Decedent Fr. James O’Gara became terminally ill in 2013–2014; during his decline his brother Lawrence assisted with finances and allegedly caused changes to account titling and beneficiary designations favoring Lawrence and other brothers. Thomas (another brother) later alleged improper transfers/redemptions (treasury bonds, 401(k), bank accounts) and undue influence.
- Thomas, a licensed attorney, filed multiple probate discovery/recovery petitions challenging the asset transfers; the trial court ordered conversion to petitions for recovery and struck or dismissed several of Thomas’s filings as untimely. Thomas died in 2018; his widow, Judith (plaintiff), as administrator of Thomas’s estate, filed a fourth petition for recovery in April 2019 asserting ten counts against Lawrence and others.
- On November 10, 2020, the probate court struck portions of the petition as immaterial, dismissed counts II and III under equitable estoppel, and dismissed all claims under collateral estoppel. Plaintiff filed a motion to reconsider that was rejected as untimely by the clerk and filed the next day (Dec. 11); she then moved under Ill. S. Ct. R. 9(d)(2) to backdate the filing to Dec. 10, alleging good cause.
- The trial court denied the Rule 9(d)(2) nunc pro tunc motion on January 7, 2021. Plaintiff filed a late-notice-of-appeal motion, granted by the appellate court; she appealed both the November 10, 2020, order and the January 7, 2021, order.
- The appellate court held it lacked jurisdiction to review the November 10 order because plaintiff failed to show good cause under Rule 9(d)(2) to backdate the postjudgment motion (so the notice of appeal was untimely), and therefore dismissed the appeal as to that order. The court retained jurisdiction over and affirmed the January 7, 2021 order denying the Rule 9(d)(2) relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate court has jurisdiction to review the Nov. 10, 2020 order (timeliness of notice of appeal) | Plaintiff argued her Dec. 11 postjudgment motion was effectively filed within 30 days because Rule 9(d)(2) permits backdating where clerk rejection caused delay | Defendants argued notice of appeal was untimely because plaintiff’s postjudgment motion was filed after the 30‑day period and Rule 9(d)(2) relief not warranted | Held: No jurisdiction — plaintiff failed to show good cause under Rule 9(d)(2); notice was untimely; appeal of Nov. 10 order dismissed |
| Whether plaintiff showed good cause under Ill. S. Ct. R. 9(d)(2) to backdate the late motion to reconsider | Plaintiff claimed an honest/e‑filing mistake and unfamiliarity with e‑filing justified nunc pro tunc relief | Defendants argued the delay was attorney error (not clerical), avoidable, and Rule 9(d)(2) relief is not warranted | Held: No good cause — last‑minute filing and procedural errors were attorney mistakes, not clerical; Rule 9(d)(2) relief denied |
| Whether the trial court retained jurisdiction to consider a nunc pro tunc Rule 9(d)(2) motion after the 30‑day postjudgment period elapsed | Plaintiff implied trial court could not act after its jurisdiction expired | Defendants argued the court had no jurisdiction after 30 days | Held: Trial court had jurisdiction to consider a nunc pro tunc motion to correct clerical errors at any time, but here the motion failed on the merits; appellate review affirmed for abuse‑of‑discretion standard |
| Whether appellate court could reach merits of trial court’s substantive dismissals (equitable estoppel, collateral estoppel, striking paragraphs) | Plaintiff challenged striking of paragraphs and dismissal of counts II & III and collateral‑estoppel rulings on their merits | Defendants argued merits review barred by lack of a timely appeal | Held: Appellate court declined to reach merits regarding the Nov. 10 order due to lack of jurisdiction; substantive rulings on that order were not reviewed |
Key Cases Cited
- Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6 (1998) (appellate jurisdiction generally limited to final orders)
- General Motors Corp. v. Pappas, 242 Ill. 2d 163 (2011) (lack of timely notice of appeal requires dismissal)
- D’Agostino v. Lynch, 382 Ill. App. 3d 639 (2008) (final order definition — disposes of rights in whole or part)
- Beck v. Stepp, 144 Ill. 2d 232 (1991) (nunc pro tunc relief requires definite, precise evidence and is limited to clerical errors)
- Johnson v. First National Bank of Park Ridge, 123 Ill. App. 3d 823 (1984) (court may correct clerical errors by nunc pro tunc order)