Community Bank of Plano v. Otto

755 N.E.2d 532, 324 Ill. App. 3d 471, 258 Ill. Dec. 149, 2001 Ill. App. LEXIS 688
CourtAppellate Court of Illinois
DecidedAugust 29, 2001
Docket2 — 00—0039
StatusPublished
Cited by3 cases

This text of 755 N.E.2d 532 (Community Bank of Plano v. Otto) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Community Bank of Plano v. Otto, 755 N.E.2d 532, 324 Ill. App. 3d 471, 258 Ill. Dec. 149, 2001 Ill. App. LEXIS 688 (Ill. Ct. App. 2001).

Opinion

JUSTICE O’MALLEY

delivered the opinion of the court:

Defendants, A. Norman Otto and Allen C. Otto, appeal from the trial court’s dismissal of their petition to set aside and vacate the judgment and the denial of their motion for rehearing. We vacate the trial court’s judgment.

•1 We first note that plaintiff, Community Bank of Plano (bank), has moved to dismiss this appeal pursuant to Supreme Court Rule 373 (134 Ill. 2d R. 373), in that defendants’ notice of appeal was filed 31 days after the entry of the order from which this appeal is taken. However, the thirtieth day after the entry of the order fell on a Sunday. The notice of appeal was filed the next day. Therefore, the notice of appeal was timely filed, and we deny the bank’s motion to dismiss.

•2 The bank also seeks the dismissal of the appeal because defendants failed to provide in their brief a jurisdictional basis for this court to hear this appeal, as required by Supreme Court Rule 341(e)(4)(ii) (177 Ill. 2d R. 341(e)(4)(ii)) (miscited by the bank as Supreme Court Rule 341(e)(3)), and a statement regarding the standard of review for each issue, as required by Supreme Court Rule 341(e)(3) (177 Ill. 2d R. 341(e)(3)). We note that defendants have provided a statement of jurisdiction and find that it is sufficient. However, defendants have in fact failed to include any statement regarding the standard of review. Defendants similarly failed to provide a statement of the standard of review in their brief in a prior appeal arising out of this litigation. This failure to follow the supreme court rules was brought to defendants’ attention. See Community Bank v. Otto, No. 2 — 97—1298, slip order at 4 (1998) (unpublished order under Supreme Court Rule 23). We admonish defendants and their counsel that compliance with the supreme court rules is not a matter of convenience. Having had the same deficiency brought to their attention previously in this case, defendants’ lack of compliance with the rules should be inexcusable. Nevertheless, defendants’ brief is not so deficient as to prevent our review of the appeal. See In re Marriage of Corkey, 269 Ill. App. 3d 392, 396 (1995). Therefore, we will not dismiss the appeal.

On November 24, 1997, the trial court entered judgment in the amount of $313,555.53 in favor of the bank and against the estate of August C. Otto, deceased. This judgment was affirmed in No. 2 — 97— 1298. In December 1997, the bank filed a citation to discover assets against defendants as co-administrators of the estate of August C. Otto and as transferees of certain property that had been transferred in 1994. While the citation was ordered to issue, no service of the citation was obtained.

In April 1998, the bank filed a verified petition for the issuance of a citation to recover property on behalf of the estate, seeking relief pursuant to section 16 — 1 of the Probate Act of 1975 (755 ILCS 5/16 — 1 (West 1998)). The citation issued, and, after a hearing, the trial court entered an order on March 19, 1999, in which the court found that the 1994 property transfer had been a fraudulent conveyance. The court ordered the transfer of the property to the estate of August C. Otto and allowed the bank to levy on the property, which was subsequently sold at a sheriffs sale.

On June 16, 1999, defendants filed a petition pursuant to section 2 — 1401 of the Civil Practice Law (735 ILCS 5/2 — 1401 (West 1998)) to set aside and vacate the March 19 order. The bank filed a motion to dismiss that was granted on July 27. Defendants then filed on August 19 a motion to vacate the order dismissing their petition. The record is unclear as to what happened next; however, on September 24, the court entered an order again dismissing the section 2 — 1401 motion as “not being in compliance” with section 2 — 1401(a) and taking under advisement “the motion to Declare the Judgment Void.” On December 10, the court ruled that the judgment order was not void and denied the motion to vacate. This appeal followed.

•3-6 Defendants first contend that the trial court erred in determining that the March 19 judgment was not void. A void order or judgment can be attacked at any time or in any court, in either a direct or a collateral proceeding. JoJan Corp. v. Brent, 307 Ill. App. 3d 496, 502 (1999). A judgment is void only where there is a total lack of jurisdiction in the court that entered the judgment, either as to subject matter or as to the parties. In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998). To support a collateral attack, the lack of jurisdiction must appear on the face of the record. JoJan, 307 Ill. App. 3d at 505. If the record does not contain evidence that the court’s action is a nullity, or if it recites jurisdictional facts that are untrue, the judgment is voidable and must be attacked directly for the purpose of establishing with other evidence the untruthfulness of the record. In re Marriage of Stefiniw, 253 Ill. App. 3d 196, 201 (1993). A judgment is merely voidable if it is entered erroneously by a court having jurisdiction; such a judgment is not subject to collateral attack. Mitchell, 181 Ill. 2d at 174. Once a court has jurisdiction, an order will not be rendered void because of an error or impropriety in the court’s determination of law, and a court may not lose jurisdiction merely because it makes a mistake in determining the facts, the law or both. Mitchell, 181 Ill. 2d at 174-75.

•7 Subject matter jurisdiction is the court’s power both to adjudicate the general question involved and to grant the particular relief requested. In re Estate of Gebis, 186 Ill. 2d 188, 192 (1999). Here, the bank petitioned the court, pursuant to the Probate Act, to issue a citation “ordering A. Norman Otto and Allen C. Otto to convey the real property *** to the Estate of August C. Otto, Deceased as Grantee.” However, the mere invocation of the Probate Act is not sufficient to confer jurisdiction on the trial court. Our review of the record reveals no pleading related to the opening of a decedent’s estate in August C. Otto’s name, the issuance of letters testamentary or of administration for such an estate, or the admission of August C. Otto’s will to probate. Indeed, the bank’s petition itself alleged that “no Probate of the Estate of August C. Otto has been undertaken.” We are unaware of any reason whereby the Probate Act can be used as a basis for jurisdiction when no estate has been opened. See Gebis, 186 Ill. 2d at 196 (where no decedent’s estate existed, the trial court lacked jurisdiction to adjudicate claim that should have been brought against it).

The bank argues that the June 1996 appointment of defendants as special co-administrators in the underlying case is evidence of the existence of the estate. However, a special administrator appointed pursuant to the Civil Practice Law for the purpose of defending an action is not equivalent to an administrator appointed pursuant to the Probate Act. Hannah v. Gilbert, 207 Ill. App. 3d 87, 90 (1990). Such a special administrator is empowered only to defend the action in which he is appointed; no letters of office to administer the estate issue. Hannah, 207 Ill. App. 3d at 90. While defendants were appointed as special administrators in the action in which the hank obtained judgment against August Otto, that appointment did not open a decedent’s estate of August C. Otto.

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Bluebook (online)
755 N.E.2d 532, 324 Ill. App. 3d 471, 258 Ill. Dec. 149, 2001 Ill. App. LEXIS 688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/community-bank-of-plano-v-otto-illappct-2001.