In re Estate of York , 2015 IL App (1st) 132830 ( 2015 )

Illinois Official Reports
Appellate Court
In re Estate of York, 2015 IL App (1st) 132830Appellate Court In re ESTATE OF MARY M. YORK, Deceased (Lagenia Bailey,
Caption Executor, Petitioner-Appellant, v. Rosemary Mulryan, Respondent-
Appellee).
District & No. First District, Third Division
Docket No. 1-13-2830
Filed March 31, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 08-P-5066; the
Review Hon. John J. Fleming, Judge, presiding.
Judgment Dismissed; remanded.
Counsel on Todd C. Lyster & Associates, of Chicago (Todd C. Lyster, of
Appeal counsel), for appellant.
Charles A. Janda, of Chicago, for appellee.
Panel PRESIDING JUSTICE PUCINSKI delivered the judgment of the
court, with opinion.
Justices Lavin and Hyman concurred in the judgment and opinion.
OPINION
¶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) (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 of the Code of Civil Procedure (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 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 Illinois Supreme Court Rule 341(h)(7) (Ill. S. Ct. R. 341(h)(7) (eff. Feb.
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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 a 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 the executor’s motion to strike Mulryan’s affidavit in an order
dated April 1, 2013, without an evidentiary hearing.
¶ 12 In the court’s order of April 1, 2013, the court set a hearing date for Mulryan’s motion to
dismiss. On May 1, 2013, the executor filed a motion for leave to file an amended response to
Mulryan’s motion to dismiss, which the court granted on May 2, 2013. The executor filed her
amended response to Mulryan’s motion to dismiss, supported by an affidavit by the executor,
on May 28, 2013. On June 10, 2013, the executor filed an amended affidavit.
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¶ 13 On August 7, 2013, the court granted Mulryan’s combined motion to dismiss pursuant to
section 2-619 with prejudice with respect to all allegations in counts I through IV relating to
the $60,000 loan to Mulryan pursuant to section 2-619 (735 ILCS 5/2-619 (West 2012)),
finding that there was no fiduciary relationship between Mulryan and York with respect to the
loan. As to the remaining allegations in all the counts, the court granted dismissal based on
section 2-615 without prejudice and with leave to replead. The order entered by the court
provided as follows:
“1. The Motion to Dismiss is granted with respect to any and all allegations in
Counts I, II, III, and IV that relate to the $60,000.00 loan to Mulryan, the Court finding
that there was no fiduciary relationship between Mulryan and York with respect to said
loan and the Court finding no exception applies. The dismissal with respect to all
allegations relating to said loan shall be with prejudice, the basis of said dismissal being
2-619.
2. Count II (Fraud) is dismissed with prejudice based on 2-615.
3. All other Counts (I, III, and IV) are dismissed without prejudice. The Executor
may replead said counts to be more clear.”
¶ 14 On September 4, 2013, the executor timely filed a notice of appeal.
¶ 15 Mulryan failed to file a response brief. On November 24, 2014, we entered an order taking
the case for consideration on the executor’s brief only. On December 10, 2014, Mulryan filed a
motion for an extension of time and for leave to file a motion to dismiss the appeal for lack of
jurisdiction. We entered an order taking Mulryan’s motion for consideration with the appeal.
¶ 16 ANALYSIS
¶ 17 I. Supreme Court Rule 304(b)(1) Jurisdiction
¶ 18 We first address Mulryan’s motion to dismiss this appeal for lack of jurisdiction. Mulryan
argues that the court’s order of August 7, 2013 is not appealable under Illinois Supreme Court
Rule 304(b)(1) (Ill. S. Ct. R. 304(b)(1) (eff. Feb. 26, 2010) (“A judgment or order entered in
the administration of an estate, guardianship, or similar proceeding which finally determines a
right or status of a party.”)). Mulryan argues that she did not timely file any responsive brief or
motion on appeal because the lack of jurisdiction based on the lack of finality of the court’s
order of August 7, 2013 was “clear” and she did not feel that any response was necessary. We
disagree.
¶ 19 A reviewing court has a duty to ascertain its jurisdiction before proceeding in a cause of
action and must dismiss the appeal if the court lacks jurisdiction. Lebron v. Gottlieb Memorial
Hospital, 237 Ill. 2d 217, 251-52 (2010); Secura Insurance Co. v. Illinois Farmers Insurance
Co., 232 Ill. 2d 209, 213 (2009).
¶ 20 While generally an appeal can only be taken from a judgment as to fewer than all claims “if
the trial court has made an express written finding that there is no just reason for delaying
either enforcement or appeal or both” (Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)), no such
finding is required to appeal from an order entered pursuant to Rule 304(b)(1) if the judgment
or order is a final determination of the right or status of a party. Illinois Supreme Court Rule
304(b)(1) provides an exception to this rule whereby judgments or orders entered in estate
proceedings that determine a right or status of a party are immediately appealable without the
Rule 304(a) special finding:
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“(b) Judgments and Orders Appealable Without Special Finding. The following
judgments and orders are appealable without the finding required for appeals under
paragraph (a) of this rule:
(1) A judgment or order entered in the administration of an estate, guardianship,
or similar proceeding which finally determines a right or status of a party.” Ill. S.
Ct. R. 304(b)(1) (eff. Feb. 26, 2010).
¶ 21 “A final order is one that ‘disposes of the rights of the parties either with respect to the
entire controversy or some definite and separate portion thereof.’ ” In re Estate of Yucis, 382
Ill. App. 3d 1062, 1069 (2008) (quoting Arachnid, Inc. v. Beall, 210 Ill. App. 3d 1096, 1103
(1991)). The Committee Comments to Rule 304(b)(1) indicate that “[s]ubparagraph (1) applies
to orders that are final in character although entered in comprehensive proceedings that include
other matters. Examples are an order admitting or refusing to admit a will to probate,
appointing or removing an executor, or allowing or disallowing a claim.” (Emphasis added.)
Ill. S. Ct. R. 304, Committee Comments (rev. Sept. 1988). Rule 304(b)(1) promotes efficiency
and provides certainty by allowing an appeal as to some issues as those issues are resolved
during the lengthy procedure of estate administration. In re Estate of Mueller, 275 Ill. App. 3d
128, 139 (1995) (citing Yardley v. Yardley, 137 Ill. App. 3d 747, 750-51 (1985)). “Only final
orders fit within Rule 304(b)(1). “Without the Rule 304(b)(1) exception, an appeal would have
to be brought after an estate was closed, the result of which may require reopening the estate
and marshalling assets that have already been distributed.” In re Estate of Thorp, 282 Ill. App.
3d 612, 616-17 (1996).
¶ 22 However, “not every order entered in an estate proceeding may be immediately appealed.”
In re Estate of Vogt, 249 Ill. App. 3d 282, 285 (1993). For appellate jurisdiction to attach, the
order must “finally” determine the right or status of a party. (Internal quotation marks omitted.)
Estate of Vogt, 249 Ill. App. 3d at 285. “It is not necessary that the order resolve all matters in
the estate, but it must resolve all matters on the particular issue.” Stephen v. Huckaba, 361 Ill.
App. 3d 1047, 1051 (2005). In other words, the “ultimate right, not the theory upon which that
right is premised, must be determined.” In re Liquidation of Medcare HMO, Inc., 294 Ill. App.
3d 42, 46 (1997). See In re Estate of Jackson, 354 Ill. App. 3d 616, 619 (2004) (finding that the
respondents had no right to property because judgment order that deed was invalid and
property belonged to estate was a final determination of the parties’ rights to the real property).
Cf. Medcare HMO, 294 Ill. App. 3d at 47 (assessing Rule 304(b)(2) and concluding that rights
of parties to monies paid to attorneys was not finally determined when the court dismissed
fraudulent conveyance count because right to recover the payment on the related but
alternative theory of voidable preference had yet to be determined).
¶ 23 We allowed the executor an opportunity to respond to Mulryan’s motion to dismiss based
on lack of jurisdiction, and the executor argues that by the court’s order of August 7, 2013 the
circuit court also dismissed all allegations related the loan pursuant to section 2-619 of the
Illinois Code of Civil Procedure (735 ILCS 2/619 (West 2012)), which included not only count
I but all allegations regarding the loan in counts I, III and IV, thereby defeating any claim for
the $60,000 loan. The executor also argues that the dismissal of these counts was with
prejudice, which is a final determination regarding any claim to that alleged loan.
¶ 24 We agree with the executor. As in Estate of Thorp and Estate of Jackson, the dismissal
order at issue finally determined a party’s right to particular property in an estate proceeding.
Here, the circuit court determined that estate had no claim to the $60,000, under either a breach
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of fiduciary duty claim or a fraud claim, and the motion to dismiss was “granted with respect to
any and all allegations in Counts I, II, III, and IV that relate to the $60,000.00.” The dismissal
was with prejudice, and so it was a final determination of the estate’s right to the money in
question, based on either fiduciary duty or fraud. Thus, the facts of this case and the dismissal
order are squarely within Rule 304(b)(1) as an immediately appealable order. We therefore
deny Mulryan’s motion to dismiss for lack of jurisdiction based on Rule 304(b)(1).
¶ 25 Additionally, Mulryan failed to timely file a response brief or motion for extension of time,
arguing only that she felt it was unnecessary because of her jurisdiction argument, which is
unmeritorious. Yet, after we entered our order taking the case on the executor’s brief only,
Mulryan then filed her motion to dismiss for lack of jurisdiction and sought leave to file a
response brief. Mulryan fails to provide good cause for why she failed to do so in a timely
manner. See Ill. S. Ct. R. 343(c) (eff. July 1, 2008) (requiring a showing of good cause to
extend the time for filing briefs on appeal). We note that the executor included an argument in
her appellate brief regarding jurisdiction, specifically relying on Illinois Supreme Court Rule
304(b)(1) (Ill. S. Ct. R. 304(b)(1) (eff. Feb. 26, 2010)), which Mulryan now belatedly seeks to
challenge. We agree with the executor’s argument that Mulryan has caused unnecessary delay
in the disposition of this case on appeal and so we deny her motion for extension of time. Given
Mulryan’s failure to file any response to the executor’s appellate brief and disregard for
mandated appellate deadlines, we abide by our prior order and proceed based on the executor’s
brief only.
¶ 26 II. Notice of Appeal Jurisdiction
¶ 27 Rather than a failure to satisfy Rule 304(b)(1) as the ground for lack of jurisdiction,
although this ground was not raised by the parties, we instead find that we lack jurisdiction due
to the executor’s deficient notice of appeal. The Illinois Supreme Court has emphasized that
courts of review have an independent duty to consider jurisdiction even if a jurisdictional issue
is not raised by the parties. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d
209, 213 (2009); People v. Smith, 228 Ill. 2d 95, 104-06 (2008).
¶ 28 In her appellate brief, the executor raises only two grounds of error: (1) that the court erred
in dismissing count I in finding that there was no fiduciary relationship between York and
Mulryan regarding the loan of $60,000; and (2) that the court erred in denying her motion to
strike Mulryan’s affidavit in support of Mulryan’s section 2-619 portion of her combined
section 2-619.1 motion to dismiss.
¶ 29 A. The Dismissal of Count I Pursuant to Section 2-619
Was Not Included in the Notice of Appeal and
We Are Without Jurisdiction to Review It
¶ 30 The executor argues that the court erred in dismissing count I for breach of fiduciary duty
pursuant to section 2-619 because there was a loan made by York to Mulryan and there was a
long-term personal and fiduciary relationship between them as law firm partners.
¶ 31 But in the executor’s notice of appeal, the executor only appealed from the dismissal of
count II for fraud pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS
5/2-615 (West 2012)) in the court’s order of August 7, 2013. The executor did not appeal from
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the dismissal of count I, even though the court’s order of August 7, 2013 dismissed all
allegations in all the other counts pertaining to the loan, including count I.
¶ 32 “ ‘The filing of a notice of appeal “is the jurisdictional step which initiates appellate
review.” ’ ” General Motors Corp. v. Pappas, 242 Ill. 2d 163, 176 (2011) (quoting People v.
Smith, 228 Ill. 2d 95, 104 (2008), quoting Niccum v. Botti, Marinaccio, DeSalvo & Tameling,
Ltd., 182 Ill. 2d 6, 7 (1998)). Illinois Supreme Court Rule 303(b)(2) requires that a notice of
appeal “shall specify the judgment or part thereof or other orders appealed from and the relief
sought from the reviewing court.” Ill. S. Ct. R. 303(b)(2) (eff. May 30, 2008).
¶ 33 “The purpose of the notice of appeal is to inform the prevailing party that the other party
seeks review of the trial court’s decision.” People v. Lewis, 234 Ill. 2d 32, 37 (2009). “ ‘Where
the deficiency in notice is one of form, rather than substance, and the appellee is not
prejudiced, the failure to comply strictly with the form of notice is not fatal.’ ” Smith, 228 Ill.
2d at 105 (quoting Lang v. Consumers Insurance Service, Inc., 222 Ill. App. 3d 226, 230
(1991)). The failure to comply strictly with the form of the notice is not fatal if the deficiency is
nonsubstantive and the appellee is not prejudiced. People v. Lewis, 234 Ill. 2d 32, 37 (2009)
(citing Smith, 228 Ill. 2d at 105).
¶ 34 But “[a] notice of appeal confers jurisdiction on a court of review to consider only the
judgments or parts of judgments specified in the notice of appeal.” General Motors Corp. v.
Pappas, 242 Ill. 2d 163, 176 (2011) (citing People v. Lewis, 234 Ill. 2d 32, 37 (2009)). We lack
jurisdiction to consider issues not specified in the notice of appeal. Atkinson v. Atkinson, 87 Ill.
2d 174, 177-78 (1981). Unless there is a properly filed notice of appeal, we lack jurisdiction
over the matter and we are obliged to dismiss the appeal. General Motors Corp. v. Pappas, 242
Ill. 2d 163, 176 (2011); People v. Smith, 228 Ill. 2d 95, 104 (2008) (citing People v. Anderson,
375 Ill. App. 3d 121, 131 (2006)).
¶ 35 This case does not present an excusable example of error merely as to form, such as a
wrong numerical designation (see People v. Bennett, 144 Ill. App. 3d 184, 185 (1986)
(incorrect numerical designation on pro se notice of appeal was treated as clerical error where
body of notice clearly referred to matter sought to be reviewed and all of defendants’
arguments pertained only to that case)), or the wrong date of an order (see In re Marriage of
Ramsey, 339 Ill. App. 3d 752, 755-56 (2003) (notice of appeal of court order was not defective,
even though notice had date of order wrong in one instance, where notice specified correct date
in other instance)).
¶ 36 Here, the error is entirely as to the very substance of the notice of appeal. The substance of
the notice of appeal is highly specific. It states that the relief sought from this court is the
following:
“Reversal of COURT’S RULING of 08/07/2013 granting ROSEMARY S.
MULRYAN’S MOTION TO DISMISS COUNT II OF CITATION TO RECOVER
ASSETS (a loan/debt), WITH PREJUDICE, PURSUANT TO SECTION 2-615.”
¶ 37 The executor argues for the reversal of count I in her brief, but she only appealed from the
dismissal of count II in her notice of appeal. Not only does the notice of appeal specify a
different count than the one she argues about in her brief–count II, rather than count I–but it
also specifies that the dismissal appealed from was under a different statutory section, section
2-615, pursuant to which count II was dismissed, rather than section 2-619, pursuant to which
count I was dismissed. The inclusion of the parenthetical “a loan/debt” does not sway this
determination either way, because both count I and count II were based on the allegations of a
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loan/debt. As such, the substance of the notice of appeal rather specifically denotes that the
appeal is only from the dismissal of count II with prejudice, pursuant to section 2-615.
¶ 38 In Long v. Soderquist, 126 Ill. App. 3d 1059, 1062 (1984), an order was entered granting
the defendants’ motion for summary judgment as to counts VI and VIII and dismissing counts
V and VII in that case with prejudice. Long, 126 Ill. App. 3d at 1062. The notices of appeal as
to the county defendants appealed only from the judgments granting the defendants’ motions
for summary judgment, and not from the dismissal of counts V and VII. Id. Thus, the court
held that there was no timely appeal of the judgment on those counts and did not review them.
Id. See also Diocese of Quincy v. Episcopal Church, 2014 IL App (4th) 130901, ¶ 35 (holding
that where a plaintiff’s notice of appeal is from a judgment order as to certain counts and does
not refer to an earlier order dismissing other counts, we lack jurisdiction to consider the earlier
dismissal order).
¶ 39 Although the executor argues for the reversal of the dismissal of count I in her brief, the
failure to file a proper notice of appeal is not remedied by addressing the appropriate count or
issue in an appellate brief. See General Motors Corp. v. Pappas, 242 Ill. 2d 163, 178 (2011).
¶ 40 We further note that although we have jurisdiction to review the dismissal of count II, the
executor made no argument regarding count II in her appellate brief. The executor’s argument
is directed to count I, but we are without jurisdiction to review the dismissal of count I.
¶ 41 B. We Are Also Without Jurisdiction to Review the Order
Denying the Motion to Strike Mulryan’s Affidavit
¶ 42 The executor devotes the other half of her appellate brief to her argument that the court
erred in denying her motion to strike Mulryan’s affidavit in support of the section 2-619
portion of Mulryan’s section 2-619.1 motion to dismiss because the affidavit did not comply
with Illinois Supreme Court Rule 191(a) (Ill. S. Ct. R. 191(a) (eff. July 1, 2002)).
¶ 43 As we have noted, however, the executor appeals only from the section 2-615 dismissal of
Count II, and thus our review of the court’s order denying the motion to strike Mulryan’s
affidavit is limited to the context of the section 2-615 dismissal of count II only. The executor
did not include the order denying the motion to strike Mulryan’s affidavit in her notice of
appeal (Ill. S. Ct. R. 303(b)(2) (eff. May 30, 2008)), and there was no Rule 304(a) language in
the order denying the motion to strike Mulryan’s affidavit which would have made it
separately appealable. See Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). The order was an
interlocutory order, and so we can review the order denying the motion to strike Mulryan’s
affidavit only if it was a step in the procedural progression leading to the dismissal of count II
with prejudice. See Longo v. Globe Auto Recycling, Inc., 318 Ill. App. 3d 1028, 1034 (2001)
(interlocutory orders unspecified in a notice of appeal are reviewable if they are a step in the
procedural progression leading to a final reviewable judgment order).
¶ 44 The ruling on the motion to strike Mulryan’s affidavit could not have been a step in the
procedural progression leading to the section 2-615 dismissal of count II, as consideration of
affidavits is not allowed in ruling on section 2-615 dismissals. Affidavits are considered only
in conjunction with section 2-619 motions to dismiss. When ruling upon a section 2-615
motion, a trial court may consider only the allegations of the complaint and may not consider
defendant’s other supporting material. Khan v. Deutsche Bank AG, 2012 IL 112219, ¶ 49. “In
ruling on a section 2-615 motion, the court may not consider affidavits, products of discovery,
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documentary evidence not incorporated into the pleadings as exhibits, or other evidentiary
materials.” Cwikla v. Sheir, 345 Ill. App. 3d 23, 29 (2003). Unlike a motion for summary
judgment or a motion for involuntary dismissal that raises an affirmative matter avoiding the
legal effect of or defeating the claim, a motion to dismiss for failure to state a claim (735 ILCS
5/2-615 (West 2012)) is a motion based on the pleadings rather than the underlying facts; thus,
depositions, affidavits, and other supporting materials may not be considered by the court in
ruling on a section 2-615 motion. Provenzale v. Forister, 318 Ill. App. 3d 869, 879 (2001).
¶ 45 The court in its dismissal ruling did not consider Mulryan’s affidavit, either at the hearing
or in its written order of August 7, 2013. We also will not consider any affidavits in the context
of our review of a section 2-615 dismissal. See Saletech, LLC v. East Balt, Inc., 2014 IL App
(1st) 132639, ¶ 16 (refusing to consider on appeal an affidavit filed in response to a section
2-615 motion to dismiss in the circuit court).
¶ 46 As such, we do not have jurisdiction to review the court’s order denying the executor’s
motion to strike Mulryan’s affidavit either. We therefore must dismiss the entire appeal.
¶ 47 CONCLUSION
¶ 48 The respondent to the citation to recover assets failed to timely file a response brief or seek
an extension of time to file one, and so we abide by our prior order taking the appeal only on
the executor’s brief.
¶ 49 Because the executor failed to file a proper notice of appeal, raising only the dismissal of
count II under section 2-615 in the substance of her notice of appeal, we do not have
jurisdiction to review the dismissal of count I pursuant to section 2-619. We also do not have
jurisdiction to review the court’s order denying the executor’s motion to strike Mulryan’s
affidavit because the order could not have been a step in the procedural progression to the
dismissal of count II under section 2-615, as affidavits cannot be considered on section 2-615
dismissals. We therefore must dismiss the entire appeal.
¶ 50 Because the court allowed the executor an opportunity to replead in the circuit court on
other counts, we remand the case to the circuit court.
¶ 51 Dismissed; remanded.
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