{ "id": 4286131, "name": "In re ESTATE OF MICHAEL F. GAGLIARDO, Deceased (Margaret Gagliardo, Indiv. and as Adm'r With Will Annexed of the Estate of Michael F. Gagliardo, Appellant)", "name_abbreviation": "In re Estate of Gagliardo", "decision_date": "2009-03-27", "docket_number": "No. 1-06-1714", "first_page": "343", "last_page": "349", "citations": [ { "type": "official", "cite": "391 Ill. App. 3d 343" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "883 N.E.2d 556", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "379 Ill. App. 3d 687", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4275767 ], "year": 2008, "pin_cites": [ { "page": "688" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/379/0687-01" ] }, { "cite": "639 N.E.2d 1306", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "265 Ill. App. 3d 773", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872493 ], "year": 1994, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0773-01" ] }, { "cite": "763 N.E.2d 360", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "327 Ill. App. 3d 143", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 79379 ], "year": 2001, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/327/0143-01" ] }, { "cite": "869 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "373 Ill. App. 3d 703", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4269846 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "705" }, { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/0703-01" ] }, { "cite": "711 N.E.2d 346", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 1030", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564552 ], "year": 1999, "pin_cites": [ { "page": "1039" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/1030-01" ] }, { "cite": "269 N.E.2d 356", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "133 Ill. App. 2d 499", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2470891 ], "year": 1971, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/133/0499-01" ] }, { "cite": "210 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "888 N.E.2d 663", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "382 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4276851 ], "year": 2008, "pin_cites": [ { "page": "641-42" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/382/0639-01" ] }, { "cite": "407 N.E.2d 741", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "someone who is not an \"interested person\" under the Act lacks standing to intervene" } ], "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3188071 ], "year": 1980, "pin_cites": [ { "page": "6", "parenthetical": "someone who is not an \"interested person\" under the Act lacks standing to intervene" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0001-01" ] }, { "cite": "668 N.E.2d 614", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 600", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159567 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "601" }, { "page": "601" }, { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0600-01" ] }, { "cite": "822 N.E.2d 927", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "355 Ill. App. 3d 498", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600301 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "500" }, { "page": "500-01" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0498-01" ] }, { "cite": "759 N.E.2d 501", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "197 Ill. 2d 500", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259110 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "507" }, { "page": "507" }, { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0500-01" ] }, { "cite": "721 N.E.2d 811", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "308 Ill. App. 3d 1068", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261348 ], "weight": 8, "year": 1999, "pin_cites": [ { "page": "1068" }, { "page": "1071" }, { "page": "1071-72" }, { "page": "1072" }, { "page": "1072" }, { "page": "1072" }, { "page": "1072" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/1068-01" ] } ], "analysis": { "cardinality": 669, "char_count": 14678, "ocr_confidence": 0.783, "pagerank": { "raw": 6.972897138526755e-08, "percentile": 0.4221763508219977 }, "sha256": "7318464806d420016dd97182c824c5620fb23a45e3586141a4c077f3dbe0141e", "simhash": "1:b0aef2bb023a4cff", "word_count": 2470 }, "last_updated": "2023-07-14T21:50:16.782503+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF MICHAEL F. GAGLIARDO, Deceased (Margaret Gagliardo, Indiv. and as Adm\u2019r With Will Annexed of the Estate of Michael F. Gagliardo, Appellant)." ], "opinions": [ { "text": "JUSTICE CAHILL\ndelivered the opinion of the court:\nMargaret Gagliardo (Margaret), individually and as the administrator of the estate of her late husband, Michael E Gagliardo (Michael), appeals the trial court\u2019s May 2006 order granting fees in petitions filed by two law firms, Duane Morris LLC (Duane Morris) and Mayer Brown Rowe & Maw (Mayer Brown). Each party challenges our jurisdiction but on different grounds. Margaret argues we lack jurisdiction because the trial court in 2003 granted an interested party\u2019s motion for a substitution of judge (SOJ) but failed to transfer \u201cthe entire case,\u201d rendering void all orders that followed. Mayer Brown argues we lack jurisdiction because the 2006 order does not contain the precise language contained in Supreme Court Rule 304 (210 Ill. 2d R. 304) (judgments as to fewer than all claims must include an express written finding of no just reason to delay enforcement or appeal). We have reviewed both arguments and conclude that the interlocutory 2006 order and the absence of Rule 304 language defeat our jurisdiction. We dismiss.\nWe also have reviewed Margaret\u2019s petition for rehearing filed after this opinion was issued and address her contentions at the end of this opinion.\nMichael died in a racing car accident in May 2001. Paulette, Michael\u2019s sister, was named executor of his estate in his will. In June 2001, Paulette and Margaret agreed to hire the law firm of Quinlan & Carroll (Quinlan) to investigate the accident in anticipation of a wrongful death action. Margaret and Paulette dispute who retained Quinlan and who was to be responsible for fees. Quinlan\u2019s fees were paid despite the dispute. The parties disagree as to the source of the funds paid to Quinlan, but the source of the payment does not affect our analysis. Paulette as executor opened the estate on December 7, 2001. Paulette was represented first by Duane Morris and then by Mayer Brown. Paulette moved for a determination of attorney fees in August 2003. Quinlan was served with notice of Paulette\u2019s motion. The court designated Quinlan as an \u201cinterested party\u201d as defined in section 1 \u2014 2.11 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/1 \u2014 2.11 (West 2002)). An interested person or party is one with a financial interest, including a creditor that may be affected by a probate proceeding. 755 ILCS 5/1 \u2014 2.11 (West 2002). An interested party has standing to intervene in the proceeding.\nQuinlan filed a special appearance as an interested party and an emergency motion for an SOJ as of right under section 2 \u2014 1001(a)(2) of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 1001(a)(2) (West 2002)) in December 2002. No other parties joined in Quinlan\u2019s SOJ motion or filed a separate motion for SOJ. The trial court granted Quinlan\u2019s SOJ motion in January 2003. The transcript of the proceedings on the motion shows the trial court concluded that Quinlan was not a party to the estate: \u201cthey are not ever going to get a distribution, they are not legatees, they are not heirs at law, they can\u2019t contest the will but *** have an interest in it because they have been paid fees.\u201d\nThe trial court held hearings on the Duane Morris and Mayer Brown fee petitions in March 2006. The Duane Morris petition was for services to Paulette as executor of the estate from August 8, 2002, to December 31, 2002. The Mayer Brown petition was for services to Paulette as executor from January 15, 2003, to March 21, 2006. It is undisputed that Mayer Brown continued to provide services to the estate after March 21, 2006. The trial court in a written order dated May 10, 2006, granted some but not all of the fees and costs in the Duane Morris and Mayer Brown petitions. The order did not include the language in Supreme Court Rule 304 (210 Ill. 2d R. 304), stating that the order was appealable.\nMargaret appeals. She argues that this court lacks jurisdiction over this appeal because the trial court lost jurisdiction in 2003 by granting Quinlan\u2019s SOJ motion on its fee petition without transferring the entire estate case to a different judge. She maintains that because the entire estate case was not transferred, all orders entered by the trial court after it granted Quinlan\u2019s SOJ are void under the reasoning in McCann v. Presswood, 308 Ill. App. 3d 1068, 721 N.E.2d 811 (1999).\nSubstitutions of judge are governed by section 2 \u2014 1001 of the Code. 735 ILCS 5/2 \u2014 1001 (West 2006). Section 2 \u2014 1001(a)(2)(i) provides: \u201cEach party shall be entitled to one substitution of judge without cause as a matter of right.\u201d 735 ILCS 5/2 \u2014 1001(a)(2)(i) (West 2006). Section 2 \u2014 1001(c) provides: \u201c[w]hen a substitution of judge is granted, the case may be assigned to some other judge in the same county, or in some other convenient county.\u201d (Emphasis added.) 735 ILCS 5/2 \u2014 1001(c) (West 2006). Margaret argues that by using \u201cthe case,\u201d the legislature meant that only entire cases, not one portion of a case like the Quinlan fee issue, can be transferred under the SOJ statute. The parties have not cited, nor has our research found, legal authority that defines \u201cthe case\u201d as used in the statute.\nStatutory construction presents a question of law and is reviewed de novo. In re Estate of Andernovics, 197 Ill. 2d 500, 507, 759 N.E.2d 501 (2001). \u201cThe fundamental rule of statutory construction is to ascertain and give effect to the legislature\u2019s intent.\u201d Andernovics, 197 Ill. 2d at 507. We look to the language of the statute to determine the legislature\u2019s intent, giving this language its plain, commonly understood meaning. Andernovics, 197 Ill. 2d at 507. Black\u2019s Law Dictionary defines \u201ccase\u201d as: \u201c[a] proceeding, action, suit, or controversy at law or in equity.\u201d Black\u2019s Law Dictionary 206 (7th ed. 1999). The SOJ statute\u2019s provisions are to be liberally construed. Aussieker v. City of Bloomington, 355 Ill. App. 3d 498, 500, 822 N.E.2d 927 (2005). The statute should be construed \u201cto effect rather than defeat the right of substitution.\u201d Beahringer v. Hardee\u2019s Food Systems, Inc., 282 Ill. App. 3d 600, 601, 668 N.E.2d 614 (1996). A court has no discretion to deny a request for a substitution of judge as long as the judge has made no substantive rulings or determined that the motion was made to delay or avoid trial. Beahringer, 282 Ill. App. 3d at 601.\nIn applying these guidelines, we conclude that adopting Margaret\u2019s construction of the SOJ statute would serve to defeat rather than effect the rights of Quinlan under the SOJ statute. The court had made no substantive rulings as to Quinlan. There was no allegation that Quinlan\u2019s motion was to delay or avoid a trial.\nMargaret\u2019s sole authority in arguing that the entire estate should have been transferred to a different judge with Quinlan is McCann, 308 Ill. App. 3d at 1068. There we construed section 2 \u2014 604.1 of the Code, which precludes plaintiffs from seeking punitive damages \u201cin all actions\u201d based on negligence (735 ILCS 5/2 \u2014 604.1 (West 1994)). McCann, 308 Ill. App. 3d at 1071. At issue was a four-count complaint where two counts alleged a cause of action where punitive damages were allowed and two counts alleged negligence where punitive damages were not allowed. McCann, 308 Ill. App. 3d at 1071-72. We concluded: \u201cSection 2 \u2014 604.1 speaks of the entire action and does not narrowly restrict punitive damages requests in all counts based on negligence but, rather, in all complaints based on negligence.\u201d (Emphasis in original.) McCann, 308 Ill. App. 3d at 1072. We construed the statute in light of \u201cstrong policy considerations against punitive damages,\u201d finding that even a complaint based only in part on negligence would be barred from punitive damages under section 2 \u2014 604.1 (735 ILCS 5/2 \u2014 604.1 (West 1994)). McCann, 308 Ill. App. 3d at 1072.\nMcCann is distinguishable. First, McCann does not mention, much less construe, the SOJ statute at issue here. Second, McCann construes the term \u201caction,\u201d not \u201ccase,\u201d which is the term at issue here. Finally, the public policy underlying McCann is materially different from the policy underlying the SOJ statute. The court in McCann was concerned with a public policy that discourages plaintiffs from seeking punitive damages. McCann, 308 Ill. App. 3d at 1072. By rejecting the entire four-count complaint as a whole rather than only those counts sounding in negligence, the court emphasized the breadth of the legislature\u2019s disfavor of punitive damages in negligence cases. McCann, 308 Ill. App. 3d at 1072. In contrast, courts are to construe the SOJ statute to effect, not defeat, a party\u2019s right to an SOJ. Aussieker, 355 Ill. App. 3d at 500-01; Beahringer, 282 Ill. App. 3d at 600.\nQuinlan\u2019s creditor interests were collateral to probating the estate, both temporally and procedurally. Quinlan was retained by and provided services to Margaret and Paulette in June 2001, six months before Paulette opened the estate. Quinlan was drawn into the estate proceedings in August 2003 only after Paulette, as executor, moved for a general determination of attorney fees. Only after receiving notice of Paulette\u2019s motion did Quinlan make a \u201cspecial appearance\u201d before the court. The court found Quinlan to be an \u201cinterested party\u201d under section 1 \u2014 2.11 of the Probate Act (755 ILCS 5/1 \u2014 2.11 (West 2002)). Without this designation, Quinlan would have lacked standing to intervene in the estate proceedings. See In re Estate of Staehli, 86 Ill. App. 3d 1, 6, 407 N.E.2d 741 (1980) (someone who is not an \u201cinterested person\u201d under the Act lacks standing to intervene). There is no public policy ground for depriving the probate court of jurisdiction when it granted Quinlan\u2019s motion as an intervening creditor for an SOJ.\nAs to the second jurisdictional challenge, we do lack jurisdiction to review the 2006 order because it does not contain the required language to make it appealable under Supreme Court Rule 304 (210 Ill. 2d R. 304). As noted earlier, it is undisputed that Mayer Brown continued to represent the estate after March 21, 2006, the last date on its fee petition. For this reason, the fee petition was interlocutory in part. Mayer Brown would be filing one or more fee petitions in the future. The 2006 order did not contain the language required by Supreme Court Rule 304(a): \u201c[the trial court must make] an express written finding that there is no just reason for delaying either enforcement or appeal or both.\u201d 210 Ill. 2d R. 304(a). We lack jurisdiction to consider this appeal without such a finding. D\u2019Agostino v. Lynch, 382 Ill. App. 3d 639, 641-42, 888 N.E.2d 663 (2008). Nor is the order appealable under Rule 304(b)(1) (210 Ill. 2d 304(b)(1)), as a judgment entered in the administration of an estate that does not require the special language. An order entered in an estate administration without Rule 304(a) language is not appealable where, as here, the judgment entered was for fewer than all of the claims for relief sought by the claimant. In re Estate of Pruett, 133 Ill. App. 2d 499, 502, 269 N.E.2d 356 (1971).\nHere, although the order was a final disposition of the fees claimed by Duane Morris, it was an interim order for fees claimed by Mayer Brown. An interim order for attorney fees is not a final or appealable order. In re Marriage of Tetzlaff, 304 Ill. App. 3d 1030, 1039, 711 N.E.2d 346 (1999).\nIn her petition for rehearing, Margaret first argues that this court cannot now dismiss the appeal on jurisdictional grounds because a motion panel of this court denied Mayer Brown\u2019s earlier motion to dismiss this appeal for want of jurisdiction. A motion panel\u2019s denial of a motion to dismiss before briefing and argument is not final and may be revised at any time before the disposition of the appeal. In re Mar riage of Waddick, 373 Ill. App. 3d 703, 705, 869 N.E.2d 1089 (2007). The panel that hears the appeal has an independent duty to determine whether it has jurisdiction and to dismiss the appeal if it does not. In re Marriage of Waddick, 373 Ill. App. 3d at 705. The motion panel\u2019s denial of the earlier motion to dismiss has no bearing on our review.\nMargaret also argues that this court has jurisdiction to review the trial court\u2019s final order on Duane Morris\u2019s attorney fee petition even if we lack jurisdiction to review the nonfinal order on Mayer Brown\u2019s fees. We disagree. The purpose of limiting appeals to final judgments is to discourage piecemeal appeals and to remove the uncertainty that exists when a final judgment is entered on fewer than all matters. Yugoslav-American Cultural Center, Inc. v. Parkway Bank & Trust Co., 327 Ill. App. 3d 143, 147, 763 N.E.2d 360 (2001). This purpose would be defeated, particularly in this complicated dispute, if we reviewed the Duane Morris fee petition without reviewing the Mayer Brown petition. We decline to do so.\nMargaret further maintains in her petition for rehearing that we erred in stating she had challenged this court\u2019s jurisdiction. We disagree. Margaret\u2019s main premise on appeal was that the trial court lost jurisdiction over all matters pertaining to the estate when it transferred only the Quinlan fee petition, and not the entire probate case, on Quinlan\u2019s SOJ motion. Under this theory, our own jurisdiction is questioned: \u201cWhere the tribunal below has no jurisdiction an appeal can confer no jurisdiction on the reviewing court.\u201d Citizens Utilities Co. of Illinois v. Pollution Control Board, 265 Ill. App. 3d 773, 777, 639 N.E.2d 1306 (1994). It is axiomatic that the appellate court must first consider its jurisdiction to hear an appeal before reaching the merits. In re Marriage of Schwieger, 379 Ill. App. 3d 687, 688, 883 N.E.2d 556 (2008). Here, we first concluded we had jurisdiction despite Margaret\u2019s main theory that the entire probate case should have been transferred with the Quinlan fee petition. But we then found we lacked jurisdiction under Supreme Court Rule 304(b)(1) (210 Ill. 2d R. 304(b)(1)) despite Margaret\u2019s other theory that this rule established our jurisdiction.\nFor these reasons, we dismiss this appeal for lack of jurisdiction.\nAppeal dismissed.\nO\u2019MALLEY, P.J., and McBRIDE, J., concur.", "type": "majority", "author": "JUSTICE CAHILL" } ], "attorneys": [ "Gerald E. Kubasiak, Steven J. Rotunno, Noel P. Goudreau, and Clarke M. Gillespie III, all of Kubasiak, Fylstra, Thorpe & Rotunno, P.C., of Chicago, for appellant.", "Fern C. Bomchill, Richard A. Campbell, and Jeffrey A. Berger, all of Mayer Brown LLP, of Chicago, for appellee." ], "corrections": "", "head_matter": "In re ESTATE OF MICHAEL F. GAGLIARDO, Deceased (Margaret Gagliardo, Indiv. and as Adm\u2019r With Will Annexed of the Estate of Michael F. Gagliardo, Appellant).\nFirst District (6th Division)\nNo. 1\u201406\u20141714\nOpinion filed March 27, 2009.\nRehearing denied June 2, 2009.\nModified opinion filed June 5, 2009.\nGerald E. Kubasiak, Steven J. Rotunno, Noel P. Goudreau, and Clarke M. Gillespie III, all of Kubasiak, Fylstra, Thorpe & Rotunno, P.C., of Chicago, for appellant.\nFern C. Bomchill, Richard A. Campbell, and Jeffrey A. Berger, all of Mayer Brown LLP, of Chicago, for appellee." }, "file_name": "0343-01", "first_page_order": 357, "last_page_order": 363 }