                                                                                       FILED

                                                                                   March 20, 2018

                                    2018 IL App (4th) 170455                        Carla Bender

                                                                                4th District Appellate

                                          NO. 4-17-0455                               Court, IL


                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT


 In re ESTATE OF ELOISE VIRGINIA PRUNTY,                    )
      Appeal from
 Deceased                                                   )
      Circuit Court of
                                                            )
      Macon County
 (Mary Burk and Pamela Miller,                              )
      No. 13P116
              Petitioners-Appellees,                        )

              v. 	                                          )       Honorable
 Kevin L. Thayer,	                                          )       R.C. Bollinger,
              Respondent-Appellant).                        )       Judge Presiding.



                JUSTICE KNECHT delivered the judgment of the court, with opinion. 

                Justices DeArmond and Turner concurred in the judgment and opinion.


                                            OPINION
¶1              The Macon County circuit court granted a motion by petitioners, Mary Burk and

Pamela Miller, to transfer this case to De Witt County pursuant to Illinois Supreme Court Rule

187(c)(1) (eff. Jan. 4, 2013) (intrastate transfer under the doctrine of forum non conveniens).

Respondent, Kevin L. Thayer, appeals. We dismiss the appeal for lack of subject-matter

jurisdiction.

¶2                                     I. BACKGROUND

¶3              In 2008, Elizabeth O. Lynn died intestate in De Witt County. Her estate, which is

still being probated in the De Witt County circuit court (In re Estate of Lynn, No. 08-P-25 (Cir.

Ct. De Witt County)), includes 20 acres on Clinton Lake.
¶4               Lynn had a sister, Eloise Virginia Prunty, who survived her (but died five years

later), and it is undisputed that, under the laws of descent and distribution (755 ILCS 5/2-1 (West

2008)), Prunty became entitled, upon Lynn’s death, to inherit half the residue of Lynn’s estate.

¶5               Although she survived Lynn, Prunty herself was in poor health, and at some point

she was moved from her dilapidated house in Clinton, De Witt County, to Mt. Zion, Macon

County, so she could live with a granddaughter, Kristen Hines, to whom she had given a health­

care and property power of attorney.

¶6               On December 8, 2013, Prunty died in Mt. Zion.

¶7               On May 8, 2014, in the Macon County circuit court, petitioners (two of Prunty’s

daughters) filed a petition for letters of administration, seeking to be appointed coadministrators

of her estate.

¶8               On January 11, 2017, petitioners filed a “Motion To Transfer Probate,” requesting

a transfer of this case to the De Witt County circuit court. Their motion—which did not cite

Illinois Supreme Court Rule 187 (eff. Jan. 4, 2013)—notified the Macon County circuit court,

apparently for the first time, of the Lynn case pending in De Witt County and being appealed by

respondent (In re Estate of Lynn, 2017 IL App (4th) 160766-U, appeal denied, No. 122315 (Ill.

Sept. 27, 2017)), the expected estate sale of Lynn’s 20 acres on Clinton Lake, and the right of

Prunty’s estate to receive half the residue of Lynn’s estate. Petitioners’ argument for the

proposed transfer was essentially twofold. First, Prunty had lived her entire life in Clinton except

for “approximately one year before her deathbed,” when, because of declining health and a lack

of funds, she moved in with Hines in Mt. Zion. Prunty nevertheless had “persisted that her

residence was in De Witt County.” Second, “[the De Witt County circuit court could] more

efficiently supervise the administration of [Prunty’s] estate as it [would] be determining the



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disposition of [Lynn’s] estate[,] which [had to] first be concluded and with one-half of the

residue of that [e]state paid to the [l]egal [r]epresentative of [Prunty’s estate]. Both cases could

then track together.”

¶9             Respondent filed an objection to the “Motion To Transfer Probate.” He argued

that, under section 5-1(a) of the Probate Act of 1975 (Probate Act) (755 ILCS 5/5-1(a) (West

2012)), the administration of an estate should be “[i]n the county where [the decedent] has a

known place of residence” and, in Prunty’s case, that county was Macon County, considering she

resided in Mt. Zion at the time of her death.

¶ 10           In the docket entry for April 3, 2017, the Macon County circuit court ordered:

“Petitioners to file an Amended Motion to Transfer based on Forum Non Conveniens along with

supporting Affidavits by [April 18, 2017]. [Respondent] to file a response with any opposing

affidavits by [May 3, 2017].”

¶ 11           On April 17, 2017, petitioners filed a “Forum Non Conveniens Motion To

Transfer Cause of Action,” which, this time, cited Rule 187 and included a supporting affidavit

by Miller. In addition to reiterating that Prunty had lived practically all her life in De Witt

County and that the administration of her estate would be most efficiently supervised in the

county where the bulk of her property was located, the motion observed that “a majority of ***

those interested in [Prunty’s] [e]state reside[d] in De Witt County, Illinois, especially

[respondent,] who [was] taking a primary position in this [p]robate.”

¶ 12           On May 10, 2017, respondent filed his “Reply to Forum Non Conveniens Motion

To Transfer Cause of Action Filed by Mary Burk and Pamela Miller by Attorney Curtis G.

Quindry.” This was a week beyond the court-imposed deadline for a response, and respondent

had not requested an extension. Also, he presented no affidavit to counter Miller’s affidavit.



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¶ 13            On June 12, 2017, four days after hearing oral arguments, the Macon County

circuit court granted petitioner’s Rule 187 motion to transfer this case to the De Witt County

circuit court. In its written order, the court noted the private-interest factors and the public-

interest factors to be considered when applying the doctrine of forum non conveniens. The

private-interest factors were (1) the parties’ convenience; (2) the relative ease of access to

testimonial, documentary, and real-evidence sources; (3) the availability of compulsive process

to secure the attendance of unwilling witnesses; (4) the possibility of viewing the premises, if

appropriate; and (5) all other factors that would make a trial of the case easy, expeditious, and

inexpensive. The public-interest factors were (1) the interest in deciding controversies locally,

(2) the unfairness of imposing trial expenses and the burden of jury duty on residents of a forum

having little connection to the litigation, and (3) the administrative difficulties presented by

adding litigation to already crowded court dockets.

¶ 14            The Macon County circuit court noted that neither of the petitioners resided in

Macon County and the only party who objected to their pending petition was [respondent], who

resided in De Witt County. The primary assets were real estate located in De Witt County, i.e.,

the 20 acres on Clinton Lake and Prunty’s residence in Clinton. The 20 acres were the subject of

the Lynn case in De Witt County. Macon County had no connection to this case other than the

fact that Prunty died there, and De Witt County would be a more convenient forum for the

parties and any witnesses. Macon County had no ongoing interest in resolving this dispute

locally. Therefore, the Macon County circuit court found that “the balance of the relevant factors

strongly favor[ed] transfer to De Witt County,” and accordingly, the court granted petitioners’

motion pursuant to Rule 187 to transfer the case from Macon County to De Witt County.




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¶ 15            On June 19, 2017, respondent filed a notice of appeal with the Macon County

circuit clerk. The notice of appeal stated that respondent was appealing “[t]he [t]rial [c]ourt’s

docket entry of June 12, 2017, and the [c]ourt’s written [o]rder of June 12, 2017, granting

[petitioners’] Forum Non Conveniens Motion to Transfer Cause of Action.”

¶ 16            Respondent did not file with us a petition for leave to appeal pursuant to Illinois

Supreme Court Rule 306(a)(2) (eff. Mar. 8, 2016).

¶ 17                                       II. ANALYSIS

¶ 18            According to the “Statement of Jurisdiction” in respondent’s brief filed August

29, 2017 (see Ill. S. Ct. R. 341(h)(4)(ii) (eff. July 1, 2017), he appeals pursuant to Illinois

Supreme Court Rule 304(b)(1) (eff. Mar. 8, 2016). Under Illinois Supreme Court Rule 341(i)

(eff. July 1, 2017), petitioners were obliged to include a discussion of jurisdiction in their own

brief “to the extent that the presentation by [respondent was] deemed unsatisfactory.” Their brief

is silent regarding our jurisdiction.

¶ 19            Even though the parties seem to regard our jurisdiction as unproblematic, we have

an independent duty to make sure we have jurisdiction before proceeding to the merits of this

appeal. See Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009).

To that end, let us consider the rule that respondent invokes in his “Statement of Jurisdiction.”

Rule 304(b)(1) provides as follows:

                        “(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:




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                               (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. Mar. 8, 2016).

We have been unable to find any authority stating, one way or the other, whether an intrastate

transfer pursuant to the doctrine of forum non conveniens (Ill. S. Ct. R. 187(c)(1) (eff. Jan. 4,

2013) is “[a] judgment or order *** which finally determines a right or status of a party” (Ill. S.

Ct. R. 304(b)(1) (eff. Mar. 8, 2016)).

¶ 20           “ ‘Only final orders fit within Rule 304(b)(1).’ ” Cushing v. Greyhound Lines,

Inc., 2012 IL App (1st) 100768, ¶ 84 (quoting Stephen v. Huckaba, 361 Ill. App. 3d 1047, 1051

(2005)). “ ‘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.’ ” (Internal quotation marks

omitted.) In re Estate of York, 2015 IL App (1st) 132830, ¶ 21 (quoting In re Estate of Yucis, 382

Ill. App. 3d 1062, 1069 (2008)). An order admitting or refusing to admit a will to probate,

appointing or removing an executor, or allowing or disallowing a claim against an estate is a

final order within the meaning of Rule 304(b)(1), to use some examples. Id. Another example is

an order determining that an item of property in dispute is or is not an asset of the estate. Id. ¶ 24;

In re Estate of Pawlinski, 407 Ill. App. 3d 957, 963 (2011). The transfer of a case from one

county to another pursuant to the doctrine of forum non conveniens resembles none of those

examples. By transferring this case to De Witt County, the Macon County circuit court did not

“finally [determine] a right or status of a party”; it merely determined the venue in which such

rights or status would be determined. Ill. S. Ct. R. 304(b)(1) (eff. Mar. 8, 2016). The

“controversy” in this case is whether petitioners should be appointed as coadministrators of

Prunty’s estate. See York, 2015 IL App (1st) 132830, ¶ 21. Venue is not a “definite and separate



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portion” of that “controversy”; rather, venue is only the county in which that controversy shall be


decided. (Internal quotation marks omitted.) Id. Therefore, in our de novo interpretation of Rule


304(b)(1) (see Reyes v. Menard, Inc., 2012 IL App (1st) 112555, ¶ 14), we conclude it does not


apply to intrastate transfers pursuant to Rule 187(c)(1).


¶ 21           Instead of Rule 304(b)(1), the more obviously applicable rule is Rule 306(a)(2), 


which provides as follows:


                       “(a) Orders Appealable by Petition. A party may petition for leave to

               appeal to the Appellate Court from the following orders of the trial court:

                               ***

                               (2) from an order of the circuit court allowing or denying a motion

                       to dismiss on the grounds of forum non conveniens, or from an order of

                       the circuit court allowing or denying a motion to transfer a case to another

                       county within this State on such grounds ***.” Ill. S. Ct. R. 306(a)(2) (eff.

                       Mar. 8, 2016).

¶ 22           A petition for leave to appeal under Rule 306(a)(2) must be “filed in the Appellate

Court in accordance with the requirements for briefs within 30 days after the entry of the order,”

and “[a] supporting record conforming to the requirements of Rule 328 [(Ill. S. Ct. R. 328 (eff.

July 1, 2017))] shall be filed with the petition.” Ill. S. Ct. R. 306(c)(1) (eff. Mar. 8, 2016). “Any

other party may file an answer within 21 days of the filing of the petition, together with a

supplementary supporting record conforming to Rule 328 consisting of any additional parts of

the record the party desires to have considered by the Appellate Court.” Ill. S. Ct. R. 306(c)(2)

(eff. Mar. 8, 2016).




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¶ 23            That procedure was not followed. Within 30 days after the Macon County circuit

court ordered the transfer of the case to De Witt County, respondent did not file with us a

petition for leave to appeal pursuant to Rule 306(a)(2). The 30 day deadline is jurisdictional

(Miller v. Consolidated R. Corp., 173 Ill. 2d 252, 258 (1996)), and the deadline has passed. Our

jurisdiction “ ‘attaches only upon compliance with the rules governing appeals,’ ” and we lack

authority to excuse compliance with those rules. (Internal quotation marks omitted.) People v.

Salem, 2016 IL 118693, ¶ 19 (quoting People v. Lyles, 217 Ill. 2d 210, 216 (2005)).

¶ 24                                    III. CONCLUSION

¶ 25            For the foregoing reasons, we dismiss this appeal for lack of subject-matter

jurisdiction.

¶ 26            Appeal dismissed.




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