IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
PRESIDING JUSTICE COOK delivered the opinion of thecourt:
This case involves an executor's contract to sell realestate. More than five years after the contract was signed,after the main residence on the premises had been destroyed byfire and after the executor had been removed from office, thebuyer brought an action for specific performance. The trialcourt ordered specific performance, giving the buyer credit forthe insurance proceeds with the result that the buyer would pay$4,591.55 for 34.5 acres of land plus a second residence. Thebuyer was also awarded attorney fees under the contract on thebasis that the seller had defaulted.
I. BACKGROUND
Robert Powers, Jr., died October 23, 1995. His purported last will and testament, dated July 13, 1993, left $1 eachto his son, Robert Eugene Powers, and to his daughter, VirginiaRose Huckaba. The bulk of the estate was left to Powers'sbrother, Ralph N. Powers, and Powers's sister, Nellie Roberts. The purported will nominated Ralph to serve as executor withoutbond and gave the executor "full power and authority withoutcourt order to sell or otherwise dispose of any of my property."
The purported will was admitted to probate and Ralphwas issued letters of office as executor on October 27, 1995. Five days later, November 1, 1995, before notice of the probateproceedings was mailed, Ralph entered into a real estate contractto sell Powers's residence and all personal property in and aboutthe premises to Terry Stephen for $65,000. See 755 ILCS 5/6-10(a) (West 2004) (notice must be given not more than 14 daysafter order admitting will or appointing representative). Theresidence consisted of two houses and approximately 34.5 acres ofland.
Immediately after they were served, Powers's son anddaughter filed (November 9, 1995) a petition to contest the willand at the same time filed a lis pendens notice with the countyrecorder of deeds. On October 16, 1999, following a jury trial,the purported will was declared invalid and the letters issued toRalph were revoked. Virginia Rose Huckaba was issued letters ofindependent administration on October 27, 1999.
A. The June 26, 1997, Order
On January 12, 1996, while the petition to contest thewill was pending, Ralph filed a petition for leave to selldecedent's real estate, attaching a copy of the real estatepurchase contract with Stephen. The petition to sell asked thatRalph be ordered to complete the real estate purchase contractand that the lis pendens notice be released. Leave of court isnot necessary where the sale is made by a representative under apower given in a will. 755 ILCS 5/20-15 (West 2004). ApparentlyRalph and/or Stephen was uncomfortable proceeding without anorder of the court, given the fact that a petition to contest thewill was pending. On March 26, 1996, the main residence on theproperty and all contents thereof were destroyed by fire. OnFebruary 20, 1997, Judge Robert B. Cochonour signed an order,filed June 26, 1997, finding "that it is not in the best interestof the estate to complete the contract to sell the real estate." The order had been approved as to form by the parties.
After her appointment October 27, 1999, the independentadministratrix collected a real property insurance payment in theamount of $56,223.93 and a personal property insurance payment inthe amount of $3,950. She also paid the real estate taxes on theproperty for 1996, 1997, 1998, 1999, and 2000.
B. The January 30, 2002, Order
On March 19, 2001, Stephen filed a new complaint forspecific performance of the November 1, 1995, real estate contract. That action was consolidated with the probate case. OnJanuary 22, 2002, Judge Cochonour signed a "Judgment of Court,"filed January 30, 2002, finding that Stephen "is granted judgmentof specific performance." "The [c]ourt has also relied on thetestimony regarding the good[-]faith nature of the transaction inthat the [e]xecutor made inquiry into the value of the propertybefore entering the contract, and that it does not appear to beunconscionable." The court "respectfully denies judgment ofrelief as requested in the [a]mended [c]omplaint for [s]pecific[p]erformance" (a request for attorney fees under paragraph 9 ofthe real estate contract). The court found that Stephen wasobligated to pay real estate taxes:
"as if the sale was closed on the antici-
pated date of December 1, 1995. In addition,
if defendants have paid any sums for the
subscription and obtainment of rural water,
they shall be entitled to recover such
costs."
The order did not mention that the residence had been destroyedby fire or that insurance proceeds had been received. The court,without comment, vacated its order entered on February 20, 1997,which had found "that it is not in the best interest of theestate to complete the contract to sell real estate."
Judge Cochonour resigned from office May 25, 2002. OnJanuary 3, 2003, Judge Cochonour entered a plea of guilty totheft in excess of $100,000, as executor, from the estate of JayE. Hayden, deceased, a Class 1 felony. 720 ILCS 5/16-1(a) (West2004); People v. Cochonour, case No. 03-CF-1 (Cir. Ct. CumberlandCo.). Stephen's attorney, Ralph Glenn, and his firm representedthe estate of Jay Hayden and Judge Cochonour at least from March6, 2002, to June 24, 2002, for which they were paid $7,512.50. The independent administratrix complains that Glenn representedJudge Cochonour while Cochonour was still assigned to this case. Glenn responds that there is no showing in this record thatanything was set in front of Judge Cochonour after the order wasfiled on January 30, 2002, although technically it was stillunder him.
On September 20, 2002, Stephen filed a "Petition forRepresentative to Complete Contract," asking that his reimbursement of the estate for taxes be set as follows: 1995, $63.42;1996, $501.50; 1997, $190.48; 1998, $316.34; 1999, $332.75; and2000, $357.76. Stephen asked for a credit against the purchaseprice in the amount of the insurance proceeds, $56,233.93 and$3,950. A handwritten provision in the contract stated, "13.INSURANCE: Seller shall keep premises insured and in the event ofloss, proceeds shall be payable to the Buyer and Buyer shall paythis contract in full." Such a credit would allow Stephen topurchase the real estate for less than $5,000, even though itsappraised value on October 21, 1997, was $47,000. Stephen againasked for attorney fees pursuant to paragraph 9 of the contract,which provided that "[d]efault by any party of this Contractshall entitle the non-defaulting party to *** attorney's fees andexpenses incurred in connection with judicial enforcement of thisContract."
The court (Judge Jacobs) entered an opinion August 19,2004. Defendants filed a notice of appeal (No. 4-04-0827). Stephen moved to dismiss the appeal as premature, stating thatthere were "untried and unresolved issues in the trial court." On October 20, 2004, Stephen's motion to dismiss appeal aspremature was allowed by this court.
C. The January 12, 2005, Order
The trial court (Judge Jacobs) then entered a formaljudgment order January 12, 2005, which was approved as to form bythe parties. The judgment directed the independent adminis-tratrix to execute a deed to Stephen in the form set out in anexhibit. The judgment agreed with Stephen's calculation oftaxes, agreed that Stephen was entitled to a credit for theinsurance proceeds, and directed him to pay $4,591.55 in exchangefor the deed. The judgment recited that it was a final,appealable order, appealable under Supreme Court Rule 304(b)(1) (134 Ill. 2d R. 304(b)(1)), and if for any reason it was notappealable under that rule, then the court found that it wasappealable under Rule 304(a) (134 Ill. 2d R. 304(a)). Defendantsfiled a notice of appeal January 24, 2005.
II. ANALYSIS
Stephen argues that Judge Cochonour's order enteredJanuary 22, 2002, was a final, appealable order, no appeal wastaken, and the matters adjudicated therein can no longer bedisputed. Stephen does not dispute, however, that issues remained pending after the January 22, 2002, order that may beproperly addressed in the present appeal. We review questions oflaw, including the construction of statutes and supreme courtrules, de novo. In re Estate of Burd, 354 Ill. App. 3d 434, 436,820 N.E.2d 613, 615 (2004).
A. Immediate Appeal of Orders in Estates
Supreme Court Rule 304(b)(1) provides that the following judgments and orders are appealable without the findingrequired under Rule 304(a): "A judgment or order entered in theadministration of an estate *** which finally determines a rightor status of a party." 155 Ill. 2d R. 304(b)(1). Orders withinthe scope of Rule 304(b)(1), even though entered before the finalsettlement of estate proceedings, must be appealed within 30 daysof entry or be barred. In re Estate of Devey, 239 Ill. App. 3d630, 633, 607 N.E.2d 685, 687 (1993); In re Estate of Thorp, 282Ill. App. 3d 612, 616, 669 N.E.2d 359, 362 (1996). "A centralreason behind making the time for appeal of such orders mandatory, and not optional, is that certainty as to some issues is anecessity during the lengthy procedure of estate administration." In re Estate of Kime, 95 Ill. App. 3d 262, 268, 419 N.E.2d 1246,1250 (1981). Without the Rule 304(b)(1) exception, an appealwould have to be brought after an estate was closed, the resultof which might require reopening the estate and marshaling assetsthat have already been distributed. That result would be bothimpractical and inefficient. Thorp, 282 Ill. App. 3d at 616-17,669 N.E.2d at 362.
Only final orders fit within Rule 304(b)(1). It is notnecessary that the order resolve all matters in the estate, butit must resolve all matters on the particular issue. "'A finaljudgment is one that fixes absolutely and finally the rights ofthe parties in the lawsuit *** and disposes of the entire controversy; it is final if it determines the litigation on the meritsso that, if affirmed, the only thing remaining is to proceed withthe execution of the judgment.'" W.L. Miller Co. v. Zehnder, 315Ill. App. 3d 799, 804, 734 N.E.2d 502, 506 (2000), quoting PekinInsurance Co. v. Benson, 306 Ill. App. 3d 367, 375, 714 N.E.2d559, 565 (1999).
Judge Cochonour's January 22, 2002, order clearly didnot dispose of the entire controversy. The order appears to bemore of a memo than a final resolution of all issues connectedwith the contract for sale. It did not address the major question whether Stephen was entitled to a credit for the insuranceproceeds. The order contains a number of "ifs": "if" defendantshave paid any sums for water; taxes shall be paid "as if" thesale closed on December 1, 1995. Stephen's argument that theorder was final is inconsistent with the position he later tookas to attorney fees. The order of January 22, 2002, refused toallow Stephen attorney fees and expenses under paragraph 9 of thereal estate contract, but Stephen subsequently petitioned forsuch fees, and the trial court allowed the petition as to attorney fees incurred since its order of August 17, 2004. Stephenargues that Judge Cochonour's order of January 22, 2002, was theentry of the final judgment and subsequent proceedings were onlyto enforce that judgment. In fact, every order entered in thiscase has addressed enforcement of the contract. An attempt toobtain specific performance is an attempt to enforce a contract. The proceedings continued after the January 2002 order; they didnot come to a halt.
The true final order in this case was the order enteredJune 26, 1997, when Judge Cochonour denied Ralph's petitionasking that he be ordered to complete the real estate purchasecontract. Judge Cochonour found "that it is not in the bestinterest of the estate to complete the contract to sell the realestate." That order disposed of the entire controversy and noappeal was taken, as required by Rule 304(b)(1). Judge Cochonourwas not free to ignore the June 26, 1997, order when he revisitedthe matter in January 2002. The various orders in this caseaddressed different allegations made by the parties: a petitionfor an order to complete the contract, a complaint for specificperformance, a petition to complete contract. Still, there wasonly one cause of action here, an attempt to enforce the contract. Separate claims constitute the same cause of action ifthey arise from a single group of operative facts even if theyassert different theories of relief. River Park, Inc. v. City ofHighland Park, 184 Ill. 2d 290, 311, 703 N.E.2d 883, 893 (1998). In 1997, Judge Cochonour ruled that the contract should not becompleted. That should have finished the matter.
It is true that Stephen was never formally made a partyto the 1996 probate proceedings. Nevertheless, Stephen's rightsunder the real estate contract were dependent on the power of theexecutor to sell the property. After the court's order of June26, 1997, the executor had no power to sell the property orcomply with the contract.
B. Section 20-15 of the Probate Act
Judge Cochonour's January 22, 2002, order relied onsection 20-15 of the Probate Act of 1975 (Probate Act) (755 ILCS5/20-15 (West 2004)) for the proposition that the executor wasrequired to complete the contract even after the will had beenrevoked and the executor removed. "The [c]ourt would furtherrepresent that its ruling has been influenced by the practicalneed to accommodate transfer [of] property in probate proceedingswithout unduly burdening the purchaser of property subject toprobate proceedings with extreme or laborious inquiry as to thestatus of the estate." Judge Jacobs's order of August 19, 2004,did the same.
Section 20-15 of the Probate Act contains the followinglanguage:
"If a representative leases, sells[,] ormortgages a decedent's real estate or interest, the lease, sale[,] or mortgage is validregardless of the subsequent setting aside ofthe will or any other action which mightlimit or restrain the right of the representative to lease or to convey title or tomortgage the real estate or interest. A
lessee, purchaser[,] or mortgagee from a
representative obtains the same title or in-
terest as though the instrument were executed
by the decedent immediately prior to his
death, and the rights and claims of all
parties claiming under or through the decedent
thereupon are transferred to the consideration
received or to be received from such lease,
sale[,] or mortgage." (Emphases added.) 755
ILCS 5/20-15 (West 2004).
See also 755 ILCS 5/23-8 (West 2004) (acts done before revocationof letters are valid).
The property subject to the real estate purchasecontract here was not sold; there was never a closing, a transferof possession, or payment of the purchase price. The executor,Ralph Powers, did not attempt to sell the property under section20-15 but only filed a petition to sell real estate pursuant tosection 20-4. See 755 ILCS 5/20-15, 20-4 (West 2004).
The purpose of section 20-15 is to protect bona fidepurchasers for value without notice. Once a transaction hasproceeded to the point that the purchaser has paid the purchaseprice and taken possession, the transaction is final. Executors'deeds would not be very marketable if they could be set asideyears after they were made. Section 20-15 makes the time of salethe cutoff point. Purchasers are, however, bound by the settingaside of a will or other actions that limit or restrain the rightof the representative to convey title if those events occur priorto sale. Executors do not have the power to make will contestsor petitions to remove irrelevant by simply entering into preliminary negotiations for sale.
The argument is made that the language in section 20-15, "consideration received or to be received," broadens theapplication of the section beyond sales to include contracts forsale. Under that interpretation it would be irrelevant whether a"sale" had taken place. It is not inconsistent to have a completed sale and for payments to be received in the future, aswhere the buyer gives the seller a note for the purchase price. We conclude section 20-15 only applies when there has been asale.
C. Notice to Stephen
A fact is sufficient to put a person on notice if itwould put a reasonable person on inquiry. Reed v. Eastin, 379Ill. 586, 592, 41 N.E.2d 765, 768 (1942). A purchaser from anexecutor is charged with notice of the extent of the testamentaryauthority conferred by the will. 31 Am. Jur. 2d Executors &Administrators §846 (2002). A purchaser from an executor is alsocharged with notice of the court proceedings in which the willhas been probated. Parties with actual notice of pending proceedings affecting the property are subject to the lis pendensdoctrine even if there has been no compliance with the filingrequirements of the statute (735 ILCS 5/2-1901 (West 2002)). First Midwest v. Pogge, 293 Ill. App. 3d 359, 363, 687 N.E.2d1195, 1198 (1997). Stephen's real estate purchase contract herelisted "Ralph N. Powers, [e]xecutor of the [e]state of RobertPowers, Jr.," as the seller. Stephen accordingly had actualknowledge of the existence of the estate proceedings.
III. CONCLUSION
Accordingly, we reverse the trial court's order requiring Virginia, as independent administratrix of the estate, tocomplete the contract and pay Stephen's attorney fees incurredsince August 19, 2004. As a result of our ruling, the contractdoes not give Stephen a right to possession of the personalproperty of the estate. Therefore, we remand for further proceedings on the petition for citation to recover assets and todiscover information filed by Virginia, as independentadministratrix, on January 31, 2001.
Reversed and remanded with directions.
STEIGMANN and McCULLOUGH, JJ., concur.