In re Estate of Kaganovich , 2024 IL App (1st) 230939-U ( 2024 )

2024 IL App (1st) 230939-UNo. 1-23-0939
Order filed October 11, 2024
Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re ESTATE OF ALEX KAGANOVICH, Alleged ) Appeal from the
Person with a Disability ) Circuit Court of
(Alex Kaganovich, ) Cook County.
)
Appellant, ) Nos. 21 P 5803) 21 P 5813v. )
)
The Office of the Cook County Public Guardian, ) Honorable
) Stephanie K. Miller,
Appellee). ) Judge, presiding.
JUSTICE NAVARRO delivered the judgment of the court.
Presiding Justice Mikva and Justice Mitchell concurred in the judgment.
ORDER
¶1 Held: The appeal is dismissed for lack of jurisdiction where the judgment identified in
the notice of appeal is not final and appealable and a challenge to a judgment or
judgments entered after the filing of the notice of appeal would be premature.
¶2 Appellant Alex Kaganovich appeals pro se from an order of the circuit court granting a
continuance. For the following reasons, we must dismiss the appeal.
No. 1-23-0939
¶3 The record on appeal, which includes no transcripts of proceedings, reflects that in 2016
Kaganovich underwent stem cell transplant surgery and chemotherapy for a brain tumor. Post-
treatment, he suffered a serious decline in cognition and an increase in erratic behavior. Two
petitions for appointment of guardian of a person with a disability were filed in probate court. One
was filed by Evanston Hospital on August 12, 2021, and assigned case No. 21 P 5813. A second
was filed by the Office of the Cook County Public Guardian (Public Guardian) on August 13,
2021, and assigned case No. 21 P 5803.
¶4 On August 16, 2021, the Public Guardian filed a petition for temporary guardianship of
Kaganovich in case No. 21 P 5803. The court granted the petition on August 19, 2021. On
September 28, 2021, the court granted Evanston Hospital leave to withdraw its petition in case No.
21 P 5813 “in light of the duplicate filing by the Cook County Public Guardian’s Office.” On
October 18, 2021, the court entered an order transferring case No. 21 P 5813 to the courtroom
hearing case No. 21 P 5803. The court consolidated the cases in November 2023.
¶5 On October 18, 2021, Kaganovich appeared in court on the Public Guardian’s petition for
appointment of a guardian. Also present were the Public Guardian, a court-appointed guardian ad
litem for Kaganovich, and an attorney for Kaganovich. Following the hearing, the court entered an
agreed order appointing the Public Guardian as the limited guardian of Kaganovich’s person and
estate. The order set forth, inter alia, the Public Guardian’s responsibilities in its role as limited
guardian. The order recited that the factual bases for the court’s findings that Kaganovich was
unable to contract or convey title to real estate included an August 2021 medical report wherein
Namantha R. Reddy, M.D., opined that Kaganovich “has declined in executive functioning and
-2-
No. 1-23-0939
cognitive skills, and that he requires ‘total guardianship’ due to lack of insight and poor short term
memory.”
¶6 Over the course of the next year, the Public Guardian filed an inventory of Kaganovich’s
assets, and the court authorized the Public Guardian to, among other things, clean out
Kaganovich’s house, dispose of the goods and chattels therein, sell his car and house, and drill his
safe deposit box.
¶7 At some point in 2022, Kaganovich filed a request for restoration, which is not included in
the record on appeal. The case was continued “for status on the request for restoration” numerous
times in 2022 and 2023. One of the continuance orders noted that the parties were continuing to
work in good faith towards a new limited order acknowledging Kaganovich’s improved mental
state.
¶8 On February 14, 2023, Kaganovich filed a pro se motion for “termination of public
guardianship,” stating the motion was “based on neurological neuropsychological evaluation by
Dr. Kelly Kearns, Psy.D. stating my ability for independent legal, financial, and medical decision
making at this time.” Kaganovich attached a five-page neuropsychological evaluation prepared by
Dr. Kearns in January 2023, in which she concluded that he “appears to demonstrate full capacity
for independent legal, financial, and medical decision making at this time.” On April 5, 2023,
Kaganovich filed a pro se motion for “removal of public guardianship based on improved medical
condition,” again attaching Dr. Kearns’s evaluation.
¶9 On May 8, 2023, the court entered the order that is the subject of this appeal. The order is
titled “Continuance Order” and recites as follows:
-3-
No. 1-23-0939
“This cause coming to be heard before this Honorable Court on Alex Kaganovich’s
Request for Restoration, Todd Kooperman appearing on behalf of the Public Guardian,
[Kaganovich’s attorney] not having received notice and not immediately available, Alex
Kaganovich being present, the Court having jurisdiction and being advised in the premises;
It is hereby ordered that: This matter is continued to May 15, 2023 at 11:00 AM via
Zoom Hearing for Status on Alex Kaganovich’s request for restoration.”
¶ 10 On May 15, 2023, the court entered an order reflecting that a status hearing was held via
Zoom. In the order, the court allowed Kaganovich’s attorney to withdraw, stated that Kaganovich
“shall obtain counsel of his choice” for the next court appearance or the court would appoint
counsel for him, ordered Kaganovich to appear at the next hearing “or his motion for restoration
will be stricken,” and continued the matter to June 16, 2023.
¶ 11 On May 23, 2023, Kaganovich filed a pro se notice of appeal, identifying the May 8, 2023,
continuance order as the order being appealed. As relief, Kaganovich stated that he sought to have
the court’s judgment changed to say that public guardianship “is being removed based on new
medical evidence.” He attached Dr. Kearns’s evaluation and served the circuit court judge, but not
the Public Guardian.
¶ 12 On March 26, 2024, prior to filing his opening brief, Kaganovich filed a pro se motion “for
extension” in this court. The motion states, in its entirety, as follows: “Removal of public
guardianship based on neuropsychological evaluation of Dr. Kelly Kearns, Psy.D. stating my full
capacity to perform all civil functions including personal finance independently.” Kaganovich
attached Dr. Kearns’s psychological evaluation to his motion. We ordered the motion taken with
the case and granted the Public Guardian leave to respond to the motion in its brief.
-4-
No. 1-23-0939
¶ 13 On appeal, Kaganovich argues that, during an unspecified hearing on removal of public
guardianship, the court improperly disregarded Dr. Kearns’s report establishing he had full
capacity for independent decision making. However, Kaganovich does not identify the court
order(s) he is challenging on appeal. The only order Kaganovich has identified in this appeal is the
May 8, 2023, continuance order. The Public Guardian contends that we must dismiss the appeal
for lack of jurisdiction because there is no final and appealable order. We agree.
¶ 14 In general, reviewing courts do not have jurisdiction to review judgments, orders, or
decrees that are not final. Ill. Const. 1970, art. VI, § 6; People v. Kotlarchik, 2022 IL App (2d)
200358, ¶ 7. An order is final and appealable if it disposes of the merits of a case and determines
the rights of the parties. Burton v. Autumn Grain Transport, Inc., 222 Ill. App. 3d 755, 756 (1991).
¶ 15 Here, according to his notice of appeal, Kaganovich is appealing from the court’s May 8,
2023, continuance order. See People v. Smith, 228 Ill. 2d 95, 104 (2008) (a “notice of appeal
confers jurisdiction on a court of review to consider only the judgments or parts thereof specified
in the notice of appeal”); Ill S. Ct. R. 303(b)(2) (eff. July 1, 2017) (in civil cases, a notice of appeal
“shall specify the judgment or part thereof or other orders appealed from and the relief sought from
the reviewing court”).
¶ 16 The granting of a continuance is not a final and appealable order because it does not finally
determine the rights or status of any party and leaves open further determinations by the court.
Palm v. 2800 Lake Shore Drive Condominium Ass’n, 401 Ill. App. 3d 868, 882 (2010). Moreover,
the granting of a continuance is not an interlocutory order appealable as of right under Illinois
Supreme Court Rule 307(a) (eff. Nov. 1, 2017) or by permission under Illinois Supreme Court
Rule 306(a) (eff. Oct. 1, 2020). As such, we lack jurisdiction to review the circuit court’s order of
-5-
No. 1-23-0939
May 8, 2023, and, therefore, must dismiss the appeal. See In re M.R., 305 Ill. App. 3d 1083, 1087
(1999) (finding dismissal was required because the denial of a motion for a continuance was not a
final and appealable order and was not an order for which supreme court rules provide an
interlocutory appeal).
¶ 17 We are mindful that in his opening and reply briefs, Kaganovich does not direct his
arguments against the continuance order. In fact, he does not cite to any order of the circuit court.
However, what he appears to be challenging is one or more judgments that were entered after he
filed his notice of appeal on May 23, 2023. His opening brief consists mainly of a statement of
facts in which he relates that he is completely recovered from non-Hodgkin’s lymphoma and is
capable to perform all his civil abilities independently, including personal finance. In the “points
and authorities” section of his brief, he asserts that the court made a mistake by ignoring Dr.
Kearns’s evaluation. In his reply brief, he specifies that “during the hearing in her courtroom ***
regarding the removal from m[y] public guardianship,” the trial court “completely ignored” Dr.
Kearns’s evaluation “though she had ample time to familiarize herself with it.”
¶ 18 The record does not include any judgments entered prior to the date Kaganovich filed his
notice of appeal in which the circuit court addressed the merits of his motions seeking removal
and termination of guardianship based on Dr. Kearns’s evaluation. As such, Kaganovich’s notice
of appeal—if he intended it to be directed against such a judgment or judgments—was premature.
A premature notice of appeal does not confer jurisdiction on this court. In re Detention of King,
2016 IL App (1st) 150041, ¶ 15. Moreover, when a notice of appeal is filed prematurely,
subsequent disposition of relevant matters in the circuit court does not cure the jurisdictional
defect. See, e.g., In re Marriage of Tomei, 253 Ill. App. 3d 663, 666-67 (1993) (finding that the
-6-
No. 1-23-0939
appellate court lacked jurisdiction when the pending fee petition was dismissed after a premature
notice of appeal was filed); In re Marriage of Merrick, 183 Ill. App. 3d 843, 845 (1989) (same
when pending matters were later resolved in the circuit court).
¶ 19 Finally, we address Kaganovich’s March 26, 2024, “motion for extension,” which we
ordered taken with the case. In the motion, Kaganovich seeks “removal of public guardianship”
based on Dr. Kearns’s evaluation. Sections 11a-19, 11a-20, and 11a-21 of the Probate Act of 1975
set forth the procedure for, among other things, revocation or modification of a guardianship order.
755 ILCS 5/11a-19 to 21 (West 2022). In short, the process takes place in the circuit court, not the
appellate court. See id. As such, we deny Kaganovich’s motion.
¶ 20 For the reasons explained above, we dismiss the appeal for lack of jurisdiction and deny
the “motion for extension” taken with the case.
¶ 21 Dismissed; motion denied.
-7-