Appellate Law

Special Representative Gets Bonus Time To Appeal

By Steven R. Merican

LeRoy Voga sued his son, Lyle, to collect on a defaulted promissory note. After LeRoy got a judgment, Lyle?s former wife, Teresa, , intervened to quiet title to real property she had been awarded in her divorce proceeding with Lyle, seeking to prevent LeRoy from levyng on the property.

Teresa was granted summary judgment. Soon after, LeRoy died. Before a special representative for the estate was named, LeRoy?s attorney moved to vacate the summary judgment. After a special representative was appointed, the trial court denied the motion to vacate.

The special representative, Larry, appealed the summary judgment. Teresa moved to dismiss the appeal. She asserted that the motion to vacate the summary judgment was a nullity and therefore did not toll the time to file the Notice of Appeal. Without the tolling period, Teresa argued, the Notice of Appeal was late and did not confer appellate jurisdiction.

Teresa?s nullity argument was based on the fact that the motion to vacate was made before a special representative was appointed. With no representative, Teresa concluded, there was no plaintiff, so the motion to vacate was made without authority.

The Illinois Second District Appellate Court rejected Teresa?s position. The court ruled that the period after LeRoy?s death and before Larry?s appointment ? a time the trial court is without jurisdiction over the case ? could not be counted toward the time to appeal. Larry had been appointed special representative on January 9, 2007, and he participated in the hearing on the motion to vacate the next day. ?Thus, by any reasonable calculation, on January 10, 2007 there was a timely oral postjudgment motion before the trial court. The court denied the motion, and Larry appealed within 30 days of the denial. Therefore, we have jurisdiction to consider the merits of Larry?s appeal.?

Get the whole case, Voga v. Voga, No. 2-07-0176 (12/4/07), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on February 14, 2008 (boomark / email).