No. 2--06--0536 Filed: 3-28-07

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

In re ESTATE OF LUCY N. RUSSELL, ) Appeal from the Circuit Court

Deceased ) of Du Page County.

)

) No. 05--P--597

(Debra Anne Stone, as Co-Trustee of the )

Lucy N. Russell Loving Trust, Petitioner and )

Counterrespondent-Appellee, v. Richard Scott )

Russell, as Co-Trustee of the Lucy N. Russell )

Loving Trust, Respondent and )

Counterpetitioner-Appellant (Kathleen R. ) Honorable

Ryding, as Trustee of the Lucy N. Russell ) Kenneth L. Popejoy,

Loving Trust, Appellee)). ) Judge, Presiding.

______________________________________________________________________________

JUSTICE HUTCHINSON delivered the opinion of the court:

Richard Scott Russell (Scott), the respondent and counterpetitioner, appeals from an order

of the trial court naming Kathleen R. Ryding as the special administrator of the "Lucy N. Russell

Loving Trust" (trust). Because the order was immediately appealable under Supreme Court Rule

304(b)(1) (210 Ill. 2d R. 304(b)(1)), and Scott neither filed a proper postjudgment motion nor

appealed within 30 days of the entry of the order, we lack jurisdiction to hear the appeal and must

dismiss it.

Debra Anne Stone, the petitioner and counterrespondent, and Scott are the children of the

decedent, Lucy N. Russell, who died on May 24, 2004. By different routes, both became co-trustees

of the trust. On July 15, 2005, Debra filed a petition to remove Scott as co-trustee. Scott

counterpetitioned to remove Debra as co-trustee. Debra further filed motions asking the trial court
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to intervene in the details of the administration of the trust, and the court granted several of these

motions.

On March 7, 2006, Debra filed a "motion" asking the trial court to appoint a "special

administrator" of the trust, to facilitate the liquidation of trust assets. The term "special

administrator," appearing in Debra's filing, carries through into the later trial court orders and the

parties' appeal documents. However, the record makes clear that the assets to be administered were

those of the trust. The term "special administrator" is typically reserved for a person acting for an

estate, under the Wrongful Death Act (see 740 ILCS 180/2.1 (West 2004)), whereas a person

administering a trust is a "trustee." We use the correct term here.

On March 10, 2006, the trial court granted Debra's motion to appoint a trustee. The trial

court appointed Ryding, subject to her acceptance of the position, giving her all the powers of the

trustee, and removed Debra and Scott as co-trustees "until further order of court." The trial court

continued the matter until March 21, 2006, to learn whether Ryding would accept the position. On

March 21, 2006, Scott filed a motion to amend the March 10, 2006, order to add a finding, pursuant

to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)), that no just reason existed to delay

enforcement or appeal of the order. Ryding accepted her appointment that day as well. On May 6,

2006, the trial court denied the motion to amend the order.

Scott filed a notice of appeal on May 31, 2006. In his brief, Scott asserts that this court has

jurisdiction over this appeal under Supreme Court Rule 304(b)(1). Ryding responds that, because

her appointment was effective only until further order of the court, it was not final and therefore was

not appealable without the trial court having made a finding of appealability under Rule 304(a).
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We hold that the order appointing Ryding was appealable, but that Scott's appeal was

untimely. We deem the trial court's qualification of its appointment of Ryding to be of no

significance for purposes of appealability.

Under Supreme Court Rule 301 (155 Ill. 2d R. 301), all final judgments in civil cases are

appealable as of right. "An order is *** final if it disposes of the rights of the parties either with

respect to the entire controversy or some definite and separate portion thereof." Arachnid, Inc. v.

Beall, 210 Ill. App. 3d 1096, 1103 (1991). However, under Rule 304(a), a final judgment in an

action involving multiple parties or multiple claims for relief is, in the general case, only what one

might describe as "provisionally final." Rule 304(a) provides that, before resolution of all claims

and absent a finding by the trial court that no just reason exists to delay enforcement or appeal of the

judgment, a final judgment is neither enforceable nor appealable. Further, the trial court may revise

it at any time until it resolves "all the claims, rights, and liabilities of all the parties. 210 Ill. 2d R.

304(a).

Under Rule 304(b), five classes of orders are immediately appealable without a finding under

Rule 304(a) when the trial court issues them while other matters are pending. The first of these

classes consists of orders that "finally determine[] a right or status of a party" in "the administration

of an estate, guardianship, or similar proceeding." 210 Ill. 2d R. 304(b)(1). According to the

Committee Comments to Rule 304(b)(1), examples of orders appealable under this subsectionwould

be those appointing or removing an executor. 210 Ill. 2d R. 304(b)(1), Committee Comments. A

proceeding relating to the administration of a trust is a "similar proceeding" that can generate orders

appealable under Rule 304(b)(1) if court involvement has occurred that makesthe proceeding similar

to the comprehensive court proceedings associated with the administration of an estate. Lampe v.
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Pawlarczyk, 314 Ill. App. 3d 455, 470-72 (2000). However, appeals under Rule 304(b)(1) are

appeals from final orders; the rule is not a provision for interlocutory appeals. 210 Ill. 2d R.

304(b)(1), Committee Comments; In re Estate of Burd, 354 Ill. App. 3d 434, 437 (2004).

Here, the co-trustees of the trust came into conflict and sought one another's removal. The

trial court became involved in the details of the trust administration, such as approving the payment

of bills, thus making the proceeding similar to the administration of an estate and so capable of

generating orders appealable under Rule 304(b)(1). The trial court then removed the co-trustees and

appointed a replacement trustee. This was analogous to a court's changing an executor.

The remaining question is whether the trial court's qualification of Ryding's appointment as

until further order of the court deprived the order of finality and thus of appealability under Rule

304(b)(1). We hold that it did not.

The suggestion that, because Ryding's appointment was not permanent, the order was not

final, misunderstands the concept of finality, which is not determined by how long the order will be

in effect. The "motion" for a "special administrator" raised a claim; it asserted a right to have the

trust overseen by a "special administrator." See Marsh v. Evangelical Covenant Church of Hinsdale,

138 Ill. 2d 458, 465 (1990) (holding that a "claim" for purposes of Rule 304(a) "is any right, liability

or matter raised in an action"). When the trial court granted the motion, it finally resolved that claim,

determining that Debra was entitled to the relief for which she asked. That it made the appointment

"until further order of court" did not mean that it would revisit the merits of the appointment; rather,

it set a potential limit on the duration of the relief. In this respect, the appointment was comparable

to other forms of relief of limited duration, such as temporary guardianships. Thus, the mere fact

that the trial court contemplated ending the relief at some time had no effect on the order's finality.
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See In re Marriage of Cannon, 112 Ill. 2d 552, 556 (1986) (holding that an order modifying

maintenance, but allowing later modification, was final; the modification would affect only

subsequent payments, not alter the right to the payments already made).

Although the order appointing Ryding and removing the co-trustees would have been

reviewable under Rule 304(b)(1), Scott's appeal is too late. An appeal under Rule 304(b)(1) is an

appeal from a final order, so the provisions of Supreme Court Rule 303 (210 Ill. 2d R. 303),

concerning the timing of appeals, apply. Under Rule 303(a), a party generally must file an appeal

no more than 30 days after the entry of the final order. Rule 303(a) also provides that the timely

filing of a motion directed against the judgment defers the running of the 30 days, and the time for

filing a notice of appeal is then 30 days from the resolution of the last timely and proper

postjudgment motion. 210 Ill. 2d R. 303(a). Scott filed his notice of appeal 82 days after the entry

of the order, so his appeal could be timely only if he filed it within 30 days of the resolution of a

timely and proper motion directed against the final judgment.

Scott's appeal was untimely because he did not file a postjudgment motion that extended the

time for filing his notice of appeal under Rule 303(a). A postjudgment motion extends the time for

filing a notice of appeal under Rule 303(a) only when it seeks rehearing, retrial, modification, or

vacation of the judgment, or other similar relief. See Marsh, 138 Ill. 2d at 461-64. Scott filed one

motion after the entry of the trial court's order appointing Ryding, one that requested the trial court

to enter a finding of appealability under Rule 304(a). A request for a Rule 304(a) finding is not

necessarily a request for modification of the judgment. Where a Rule 304(a) finding is required for

immediate appeal, one defensibly might view it as modifying the judgment. However, because it

is necessary, the time for appeal does not start until the trial court grants the request, so whether the
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request is a proper postjudgment motion for purposes of Rule 303(a) is irrelevant. Where, as here,

a Rule 304(a) finding is unnecessary for immediate appeal, its grant cannot change the judgment in

the least. To constitute a proper postjudgment motion for purposes of Rule 303(a), a motion for

modification of the judgment must challenge the judgment, not simply request modification of the

language of the judgment. See Giammanco v. Giammanco, 253 Ill. App. 3d 750, 755 (1993)

(holding that a motion for clarification is not a proper postjudgment motion because it is not directed

against the judgment); see also Hayes Machinery Movers, Inc. v. REO Movers & Van Lines, Inc.,

338 Ill. App. 3d 443, 446 (2003). But see Buffa v. Haideri, 362 Ill. App. 3d 532, 536-37 (2005)

(assuming that a " 'Motion to Correct Typographical Error' " was a proper postjudgment motion).

A request for a superfluous Rule 304(a) finding thus is not a request for modification of the judgment

and does not extend the time for appeal under Rule 303(a). Scott's appeal was thus untimely, and

we must dismiss it.

For the reasons given, we dismiss the appeal.

Appeal dismissed.

McLAREN and BYRNE, JJ., concur.