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

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ In re ES TAT E OF LUCY N. R US SE LL, ) Appeal from the Circuit Court Deceased ) of Du Pa ge Co un ty. ) ) No. 05--P--597 (Debra Anne Stone, as Co-Trustee of the ) Lucy N. Russell Loving Trust, Petitioner and ) Counterr esponde nt-Appe llee, v. Ri chard Sc ott ) Russell, a s Co-Trus tee of th e Luc y N . Russell ) Loving Trust, Respondent and ) Counterpetitioner-Appellant (Kathleen R. ) Honorab le Ryd ing, as T rustee o f the L

ucy N. Russell ) Ke nn et h L. Po pe jo y, Loving Trust, Appellee) ). ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE HUTCHI NSON deli

vered the opinion o f the cou rt: Richard Scott Russell (Scott), the respondent and counterpetitioner, appeals from an order of the trial court naming Kathleen R. R ydi ng as the

special administr

ator of the "L

ucy N. Russell Lo ving Trust" (

trust). B ecause

the orde r was imme diately

appeala ble under Supreme C ourt Ru l e 304(b)( 1) (210 I ll. 2d R. 304 (b)(1) ), and Sc ott neithe r filed a proper p ostjudgment moti on no r appealed within 30 days of the e

ntry of the orde

r, we lack jurisdiction to hear the appe al and mus t dismiss it. Debra Anne Stone, the petitioner and counterrespondent, and Scott are the children of the decede nt, Lucy N. Russell, who di ed on May 24, 2004. By differe nt routes , both

became co-trustees of the trust. On J uly 15, 2005, D ebra fi led a pet ition to re

move Scott

as co-tr ustee. Sc ott counterpetitioned

to remove Debra as co-trustee. Debra further filed motions asking the trial courtNo. 2--06--0536

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to intervene in the details of the administration of the trust, a nd the cou rt gra nted seve ral of the se motions. On Ma rch 7, 2006, Debra filed a "motion" asking the trial court to appoint a "speci a l administrator" of the trust, t o faci litate the liquidation of trust assets. The term "special administrator," appearing in Debra' s filing, carries through into the later trial c ourt or der s 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 ty pically rese

rved for a person acting for an estate, under th e Wro ngful Death Act (see 740 I LCS 180/2.1 (West 2004)), whereas a person administering a trust is a "trustee." We use the c orrect term here. OnM arch 1 0, 2006, the trial court granted Debra' s motion to appoint a trustee. The trial court appoi nted R yding, subject to her acceptance of the position, giving her all the powers of the trustee, and removed Deb ra and Scott as co-trust ees "until fu rther order of co urt." T he trial court continued the matter until March 21, 2006, to learn whether Ry ding 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 Cou rt Rule 304(a) (210 Ill. 2d R. 304(a)), tha t no just reason existed to delay enforcement

or appeal of the order. Ry ding 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). Ryd ing res ponds that , becau se 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 f inding of appealability

under Rule 304(a).No. 2--06--0536

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We hold that the order

appointin

g Ry ding wa s a

pp ealable, but that Scott's appeal was
un ti me ly. We deem the trial court's qualification of its appointment of Ry ding to be of no si gn if ic an ce fo r p ur po se s o f a pp ea la bi li ty. Under Supreme Court Rule 301 (155 Ill. 2d R. 301), all final judgments in civil cases a re appeala ble as of rig

ht. "An order is * ** final if it disposes

of th e rights of the par

ties eithe r with respect to the ent

ire cont roversy or some de finite an

d separa te portion there of." Arachnid, Inc. v. Beall , 210 I ll. App. 3d

1096, 1103 (1991). H owever , under Ru le 304(a ), a fina l judgment in a n actioninvolving

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 re solution of all cla ims and absent a finding by

the trial court that no just reason exists to delay enf orcement or

appeal of the judgmen t, a final judgment is neither enforceable nor appealable. Further, the trial cou rt may revise it at any time until it resolves "all the claims, rights, and liabilities of all the parties. 210 I ll. 2d R. 304(a). Under

Rule 304(

b), five classes of orders are imme diately appeala ble without a finding under Rule 304(a) when the trial court issue s them while othe r matter s are pe

nding. T he first o f these classes consists of

orders that "finally

determine[] a right or

status of a party" in "the administration of an estate, guardianship, or similar procee ding." 210 Ill. 2d R. 304(b)(1)
. Acco rding to the Co mmittee Comments to Rule 304(b)(1), examples of orders appealable under this sub section woul d be those appointing or removing an executor. 210 I ll. 2d R. 304(b)(1), Committee Comments. A proceeding

relating to the adm

inistration of a tru st

is a "similar proceeding" that ca n generate orders appeala ble under Rul e 304(b) (1) if co urt involv ement ha s occurr ed that makes the proce eding similar to th e comp rehens ive co urt pr oceedi ngs associated with the administration of an estate. Lampe v.No. 2--06--0536

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Pa wl ar cz yk , 314 Ill. App. 3d 45 5, 470-72 (2000). However, appeals under Rule 304( b)(1) are appeals from fina

l orders ; the rule

is not a pr

ovision for interlo cutory

appeals . 210 I ll. 2d R. 304(b)( 1), Committe e Comments ; In re Estate of B urd , 354 Ill. App. 3d 434, 437 (2004). Here, the co-t

rustees of the tru st came in

to conflic t and soug

ht 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 admin istr ation 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 ana logous to a court's changing an executor. The remaining question is whether the trial court's qua lification of Ryding' s appointment as until further orde r of the c ourt depr ived the order of

finality and thus of

appeala bility under Rul e 304(b)( 1). We hold

that it did n

ot. The suggestion that, because R yd ing's appointment was not permanent, the order was not final, misunderstands the concept of finality , whichis not determined by how long the order will be ineffect. The "m

otion" f or a "sp ecial a

dministra tor" ra ised a cl aim; i t ass erted a right to have the trust overseen by

a "specialadministrator." See Marsh v. E vange lical Cove

nant Chur ch of Hin sdale , 138 Ill. 2d 458, 465 (1990) (holding that a " claim" for purposes of Rule 304(a) "is a ny right, l iability
or matter raised in an action"). Whe

n the tria l court g ranted t he motion, it finally

resolve d that cla

im, determiningthat Debra was entitled to the relief for which she a sked. That it made the appointment "until further order of court" did not mean that it wou

ld revisit the merits of the appointment; rather, it set a potential limit on the duration of the re lief. I

n this resp ect, the

appointme

nt was co mparabl e to other forms of re lief of li mited dura

tion, such as tempor

ary guard iansh ips. Thus, the mere fact that th e t ri al co ur t c on te mp la te d e nd in g t he re li ef at so me ti me ha d n o e ff

ec t o n t he or de r' s f

in al it y.No. 2--06--0536

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See In re Marriage of Cannon , 112 Ill. 2 d 552, 556 (1986) (holding that an order modify ing maintenance, but allowi ng late r modific ation, wa s final; the modific ation wou ld af fect onl y subsequent payments, not alter the right to the pay

ments already

made). Alth ough the order appointing Ry ding and removing the co-trustees would have b een reviewa ble under Rule 304(b)(1), Scott's appeal is too late. An appe al under Rule 304(b)(1) is an appea l from a fi

nal orde r, so the p

rovisions of Supreme Court Rul e 303 (21 0 Ill. 2d R. 303) , concerning the timing of appea ls, apply. Under Rul e 303(a) , a party gener ally must file an appeal
no more than 30 days a

fter the entry

of the final order. Rule 303(a) al so provides that the ti

mely 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 resol u tion of the last timely and proper postjudgment

motion. 210 Ill. 2d R. 303(a). Scott filed his notice of appeal 82 days afte r the entry of the order, so his appeal could be timely only if he filed it within 30 day s of the resolution of a timely and prop er motion d

irected against the fina

l judgme nt. Scot t's appeal was untimely be cause he did not file a postjudgment motion that extended the time for filinghis 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, retr i al, modifica tion, or vacation of the judgment, or other similar relief. See Marsh , 138 I ll. 2d at 46 1-64. Sco tt filed one motion after t he ent ry of the t rial c ourt's order a ppoi ntin g 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
necessa rily a reque st for modification of the judgment. Where a Rule 304(a) finding is require d for immediat e appeal, one defe nsibly might vie

w it as modi fy

ing the j udgmen

t. Howeve

r, beca use it is necessary , the time for appealdoes not start until the trial court grants the request, so whether theNo. 2--06--0536

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request is a proper postjudgment motion for purposes of Rule 303(a) is irreleva nt. Where, as here,
a Rule 304(a) finding is unnecessary for immediate appeal, its grant cannot chang e the judgment in the least. To constitute a proper pos tj udgment motion for purposes of Rule 303(a), a motion for modificationof the jud

gment mu st chall enge the judgment, not simply reque st modification of the langua ge 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 judgmen

t); see a lso Hayes Ma

chinery Move

rs, Inc. v. REO Movers & Van Lines, I

nc. , 338 Ill. App. 3d 443, 446 (2003). But see Buffa v. Haideri , 362 I ll. App. 3d 53 2, 536-37 (2005) (assuming that a " 'Motion to Correct Ty pographi cal Error' " was a proper postjudgment motion). A request for a superfluous Rule 304(a) finding thus is not a reque st

for modification of the judgment and does not extendthe time for appeal under Rule 303(a). Scott's appeal was thus untimely , and we must dismiss it. For the r easons given, we

dismiss the

appeal. Appeal dismissed. McLAREN and BYRNE, JJ., concur.