Voga v. Voga

878 N.E.2d 800, 376 Ill. App. 3d 1075, 316 Ill. Dec. 78, 2007 Ill. App. LEXIS 1168
Appellate Court of Illinois·Decided November 5, 2007·No. 2-07-0176·Published·Cited by 6 cases

Opinion

JUSTICE O’MALLEY

delivered the opinion of the court:

LeRoy Voga sued Lyle Voga, his son, to recover debts. After the trial court awarded LeRoy a judgment, intervener, Teresa Voga, petitioned to quiet title to real property that she and Lyle had held in joint tenancy but to which she received full title under a judgment dissolving her marriage to Lyle. Teresa sought to prevent LeRoy from levying on the property. After various proceedings, the trial court granted Teresa summary judgment (735 ILCS 5/2 — 1005(c) (West 2006)). Shortly afterward, LeRoy died, but his attorney moved to vacate the summary judgment. The trial court appointed Larry Voga, LeRoy’s other son, as the special representative of LeRoy’s estate for this litigation. The court then denied the motion to vacate. Larry now appeals. We affirm.

On April 29, 1999, in case No. 99 — L—32, LeRoy filed a complaint alleging that Lyle had failed to pay three promissory notes. The trial court found Lyle in default. On July 1, 1999, it awarded LeRoy $238,293.86 and entered a memorandum of judgment in his favor.

On December 17, 2001, Teresa petitioned to intervene (see 735 ILCS 5/2 — 408 (West 2000)), alleging as follows. On June 26, 2000, in In re Marriage of Voga, case No. 98 — D—241, the trial court dissolved Teresa’s marriage to Lyle and awarded her full title to the former marital home in Sandwich. Thirty months after LeRoy received the default against Lyle, he mailed Teresa a copy of an order requiring the sheriff to “levy upon all of the right, title and interest of [Lyle] in and to all of the lands, hereditaments and tenements of [Lyle],” including the Sandwich property. Teresa contended that LeRoy could not levy on the Sandwich property because it was now solely hers.

Also on December 17, 2001, Teresa filed a “Petition to Quash Levy” and a “Petition to Quiet Title.” These petitions alleged that Le-Roy did nothing to enforce the 1999 judgment until the sheriff received the order described above almost six months after the dissolution judgment was entered. The two petitions asked the court to invalidate the memorandum of judgment, declare Teresa the sole owner of the Sandwich property, and enjoin LeRoy from further action against either Teresa or the property to “collect on the default judgment.”

LeRoy responded that, when he filed his memorandum of judgment, the Sandwich property was jointly owned by Lyle and Teresa and was subject to a levy to satisfy his judgment against Lyle. LeRoy moved for a substitution of judge (see 735 ILCS 5/2 — 1001(a)(2) (West 2002)). The trial court denied the motion and later granted Teresa summary judgment on her petitions. LeRoy appealed. We reversed and remanded, holding that LeRoy had the right to a new judge and that all orders entered after his motion for a new judge was denied were void. Voga v. Voga, No. 2 — 03—1205, slip op. at 6-7 (2004) (unpublished order under Supreme Court Rule 23).

On remand, Teresa again moved for summary judgment. In response, LeRoy argued that his lien on the Sandwich property persisted even after the trial court awarded Teresa the property. On Teresa’s motion, the trial court consolidated case Nos. 98 — D—241 and 99 — L—32.

Teresa then filed a second motion for summary judgment. The motion argued that, under section 2 — 1901 of the Code of Civil Procedure (the lis pendens statute) (735 ILCS 5/2 — 1901 (West 1998)), LeRoy was a subsequent purchaser of the Sandwich property, because (1) he did not obtain his judgment lien until after case No. 98 — D— 241 had commenced and Teresa had filed a lis pendens; and (2) he had both actual and constructive notice of the action.

On September 13, 2006, the trial court heard arguments on the motion. The court noted without disagreement that the lis pendens was filed in the marriage case in June 1999 and that there was no dispute that, before July 1, 1999, LeRoy had had actual and constructive notice of Teresa’s claim to the Sandwich property. Thus, the court concluded, the dissolution judgment eliminated Lyle’s interest in the Sandwich property, and LeRoy could not levy against the property. That day, the trial court granted summary judgment to Teresa.

On September 26, 2006, LeRoy died. On October 13, 2006, before the trial court appointed Larry to represent LeRoy’s estate in this case, LeRoy’s attorney moved to vacate the grant of summary judgment. On January 9, 2007, the trial court appointed Larry as the special representative of LeRoy’s estate. On January 10, 2007, after hearing arguments, the court declined to vacate the judgment for Teresa. On February 9, 2007, Larry filed a notice of appeal.

Teresa maintains that we lack jurisdiction over this appeal because it is untimely. She argues that, although the notice of appeal was filed within 30 days after the trial court denied the motion to vacate the judgment, the motion itself was a nullity and did not extend the time in which to appeal. See 210 Ill. 2d R. 303(a)(1) (notice of appeal must be filed within 30 days after entry of judgment appealed from, or, if a timely postjudgment motion is filed, within 30 days after the entry of the order disposing of the last pending postjudgment motion directed against the judgment). Earlier, we denied Teresa’s motion to dismiss, but we may reconsider our ruling at any time before disposing of the appeal. See In re Marriage of Waddick, 373 Ill. App. 3d 703, 705 (2007).

Teresa observes that, when LeRoy’s counsel filed the motion to vacate, LeRoy had died, and nobody had been appointed to represent his estate in this case. Thus, between September 27, 2006, and February 9, 2007, there was no plaintiff. As a result, Teresa notes, LeRoy’s counsel had no authority to file the motion to vacate the summary judgment. See Clay v. Huntley, 338 Ill. App. 3d 68, 76 (2003) (attorney-client relationship terminates upon death of client, and attorney’s authority to proceed thereafter must come from decedent’s personal representative). Also, the trial court’s jurisdiction was suspended until it appointed a special representative of LeRoy’s estate. See Washington v. Caseyville Health Care Ass’n, 284 Ill. App. 3d 97, 100 (1996). Teresa argues that, because the motion to vacate the judgment was unauthorized, it did not extend the time in which to appeal, making the notice of appeal untimely. We disagree. We hold that LeRoy’s death tolled the time in which to file either a postjudgment motion or an appeal. We rely partly on case law and partly on the policy embodied in section 2 — 1008(b) of the Civil Practice Law (735 ILCS 5/2 — 1008(b) (West 2006)), which governs the substitution of a proper party for one who has died.

LeRoy’s death on September 26, 2006, suspended the trial court’s jurisdiction over this case until the court appointed a proper successor plaintiff. See Washington, 284 Ill. App. 3d at 100. Had no motion to substitute been filed within 90 days of LeRoy’s death, the trial court would have had the discretion — but not the obligation — to dismiss the action. See 735 ILCS 5/2 — 1008(b)(2) (West 2006).

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Voga v. Voga, 878 N.E.2d 800, 376 Ill. App. 3d 1075, 316 Ill. Dec. 78, 2007 Ill. App. LEXIS 1168 (Ill. Ct. App. 2007).

878 N.E.2d 800 (Voga v. Voga) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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