Naming Wrong Party In Notice Of Appeal Does Not Defeat Appeal By Estate’s Executor And Lawyer

David Hammer was executor of Ronald Weeks’s estate. Hammer hired Thomas Brucker as an attorney to assist in the administration of the estate. Hammer ($120,000) and Brucker ($170,000) paid themselves based on a percentage of the estate’s value.

Weeks left one-fourth of his estate to a New York-based charity. The charity disputed whether Hammer and Brucker could properly take a percentage of the estate for their fees. The Illinois Attorney General intervened in the case, and disputed Hammer’s and Brucker’s fees. The trial court agreed with the Attorney General, drastically lowered the fees, and ordered Hammer and Brucker to return the excess to the estate.

Hammer and Brucker appealed. But their notice of appeal stated that the Estate of Weeks was the party appealing, not Hammer and not Brucker. The Attorney General argued that the appellate court did not have jurisdiction to consider the appeal because the wrong party was identified as the appellant. The Fourth District Illinois Appellate Court ruled that the mistake on the notice of appeal was technical, and did not defeat appellate jurisdiction. Here’s how the appellate court explained the ruling.

Jurisdiction in this court is conferred by a notice of appeal … Illinois Supreme Court Rule 303 … sets forth specific formatting and filing requirements of the notice of appeal. Among other things, a notice of appeal must name the parties and designate them “in the same manner as in the circuit court and add[ ] the further designation ‘appellant’ or ‘appellee’ ” … and must “contain the signature and address of each appellant or appellant’s attorney” … However, “Illinois courts have repeatedly refused to dismiss an appeal because of a technical deficiency in the notice of appeal so long as the notice fulfills its basic purpose of informing the victorious party that the loser desires a review of the matter by a higher court.”

Petitioners’ failure to name themselves as appellants in the notice of appeal, while technically deficient, did not deprive intervenor of the notice to which she was entitled. Intervenor [Attorney General] does not allege she was prejudiced in any way by petitioners’ naming the estate rather than themselves as appellants.

Hammer and Brucker won the jurisdiction battle, but lost the war. The appellate court affirmed the ruling requiring Hammer and Brucker to give back the excessive part of their fees. Read the whole opinion, In re Estate of Weeks, No. 4-10-0338 (5/20/11), by clicking here.