ARE CIRCUIT COURTS DEPRIVED OF JURISDICTION
AFTER THE FILING OF A NOTICE OF APPEAL? (Part Three)
This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in February, 2005
Part One of this topic discussed the basics of vesting, divesting and re-vesting of appellate jurisdiction. Part Two expanded on those general principles by providing specific examples of actions that circuit courts may take in criminal cases following the filing of a notice of appeal. Part Three provides specific examples of actions that circuit courts may take in civil cases following the filing of a timely, properly drafted notice of appeal.
ACTIONS TRIAL COURTS MAY TAKE IN CIVIL CASES FOLLOWING THE FILING OF THE NOTICE OF APPEAL
1. Dismissal of the appeal
I mentioned in Part One that the trial court retains jurisdiction to dismiss appeals when post-judgment motions have not been resolved, as well as prior to the filing of the record in the Appellate Court.1 The jurisdiction of the trial court to dismiss appeals applies equally to civil and criminal cases.2
2. Corrections and clarifications of the final judgment
The legal concept of nunc pro tunc (Latin meaning "now for then") permits correction of the record, including amendment of the judgment order, even after the filing of the notice of appeal. The court possesses inherent power to correct clerical errors or matters of form at any time. This rule of procedure does not permit changes to the substance of previous orders, but only corrections accurately reflecting action taken by the trial court on a previous occasion. The trial court may amend the record to reflect the correct party against whom judgment was entered or to correct the date of entry of the judgment, even if the correction affects the timeliness of the filing of post-judgment motions and notices of appeal.3 But, this type of order may not be used to remedy a jurisdictional defect, such as inserting a finding under Rule 304(a) that was not entered originally.4
3. Actions concerning the record on appeal
Supreme Court Rule 323(c) governs the preparation of bystander's reports. A bystander's report is a document that compensates for the lack of a verbatim recording of trial court proceedings. The appellant bears the initial responsibility to prepare this report in order to present a complete record for appellate review. The appealing party must serve the proposed report of proceedings within 28 days of filing the notice of appeal. Naturally, the parties may disagree on the contents of the proposed report. In that event, amendments are proposed or an alternative report is suggested by the appellee, then an additional 21 days may pass until the documents are presented to the trial court. The appellant is required to present the report(s) to the trial court for settlement and approval. In order to prepare an accurate report of proceedings, the judge may hold hearings before certifying the record. Thus, the entire process of preparing this substitute for a contemporaneous recording can extend for a period of at least seven weeks past the filing of the notice of appeal.
In addition, Supreme Court Rule 329 permits the amendment of the record. The trial court may supply omissions or correct inaccuracies or improper authentication of documents either before or after the record is filed in the reviewing court. The parties must submit any controversy regarding the accuracy of the record to the trial judge, which could occur many weeks or even months following the filing of the notice. Moreover, a motion to supplement the record is considered proper at any time.5, 6 The process of confirming the accuracy and completeness of the record are termed "collateral" or "incidental" to the judgment because they are matters lying outside the issues presented on appeal.
4. Stays pending appeal
The rule pertaining to obtaining a stay of enforcement of the judgment in civil cases is more specific in its requirements than the rule governing posting bond in criminal cases. Effective July 1, 2004, Supreme Court Rule 305 directs the applicant for a bond to apply for a stay initially to the circuit court. A bond or other form of security must be posted by the time of filing the notice of appeal, within 45 days of the due date of the notice if an extension is granted, or at a later date by stipulation of the parties. In addition, stays may be entered to forestall enforcement of judgments other than for money. Special provisions apply to stays of orders terminating parental rights and appeals by public agencies. The Appellate Court may review these types of orders.
Motions to assess costs are considered supplemental or procedural matters that can be addressed after the filing of the notice of appeal.7 Thus, the trial court retains jurisdiction to assess deposition costs and fees for subpoenaed witnesses after the filing of the notice of appeal.8
6. Jurisdiction after filing of interlocutory appeals
Supreme Court Rule 304(a) permits the trial court to make findings that grant finality to certain orders prior to the disposition of the entire litigation. In addition, Supreme Court Rule 307 permits the appeal of orders respecting injunctions and other specified orders as a matter of right, which may occur prior to resolution of all issues in the action. The allowance of interlocutory appeals does not deprive the trial court of all jurisdiction in the case, but it may address other issues pending the outcome of the appeal. The filing of the notice of appeal merely restrains the lower court from taking any action affecting the substantive issues on appeal and from interfering with appellate review of the order.
For example, when an interlocutory appeal is taken from orders granting or denying preliminary injunctions, issues pertaining to pre-trial discovery may proceed in the trial court during the appeal of the injunctive order. The reason for permitting this division of jurisdiction between the trial and reviewing court is that the filing of the notice of appeal only vests the Appellate Court with authority over the single question of the issuance of the injunction. The filing of the notice has no effect on the merits of the case, which arise independent of and unrelated to the portion of the proceeding pending on appeal.9
7. Collateral attacks on the judgment
Section 2-1401 of the Code of Civil Procedure permits a collateral attack on a judgment, which is analogous to a post-conviction petition in a criminal case. In contrast to a direct appeal, which is considered a continuation of the proceedings, a section 2-1401 petition is considered a new cause of action and not a continuation of original litigation.10 Both a petition filed pursuant to section 2-1401 and a direct appeal may be prosecuted simultaneously.11
Contempt proceedings are initiated within the context of a pending civil case. Once the trial court imposes a sanction on a contemnor, the contempt order is final and appealable, even though it appears interlocutory when viewed in the context of the entire litigation. Contempt appeals are considered collateral to and independent of the case in which the contempt arises. The substantive issues in the action proceed separately from any contempt appeal and those substantive issues may be appealed separately as well.12
9. Enforcement of settlement agreements
The trial court retains jurisdiction to entertain supplementary proceedings seeking enforcement of the judgment following the filing of a notice of appeal. The enforcement of a settlement agreement is considered a collateral matter to the appeal of the action, even though the appeal may contest liability and/or the amount of the judgment.13 Please note that the mere filing of an appeal does not alone stay enforcement of the judgment. In order to stop enforcement action, the appellant must obtain a stay, described in section 4, above.
I have tried to present a comprehensive listing of actions that the trial judge may take while a case is pending on appeal, but other matters could be collateral to and independent of the case or involve only ministerial acts that are not precluded by the existence of appellate jurisdiction.
Parts Four and Five will familiarize you with the doctrine of re-vestment of jurisdiction.
Larry Wechter is the primary of the Law Offices of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134, phone: 630/232-4354, e-mail: email@example.com. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.
1. See Part One of this topic (Bar Briefs, December 2004 (Fallacy #1))
2. See Supreme Court Rules 309 and 612(a); Comfort v. Wheaton Family Practice, 229 Ill.App.3d 828, 835 (2nd Dist., 1992)
3. Anderson v. Alberto-Culver USA, Inc., 337 Ill.App.3d 643, 660-662 (1st Dist., 2003); Phillips v. Gannotti, 327 Ill.App.3d 512, 516-518 (1st Dist., 2002). An order entered nunc pro tunc may itself be appealable due to the voidness of the order. Marriage of Breslow, 306 Ill.App.3d 41, 50-52 (1st Dist., 1999)
4. Shanklin v. Hutzler, 294 Ill.App.3d 659, 664-665 (1st Dist., 1997)
5. Mitchell v. Atwood Enterprises, Inc., 253 Ill.App.3d 475, 478 (2nd Dist., 1993)
6. In one of my criminal cases on appeal, the Second District permitted the State to amend the record to correct a transcript even after the Court rendered a decision, which altered the outcome of the case.
7. Mitchell v. Atwood Enterprises, Inc., 253 Ill.App.3d 475, 478 (2nd Dist., 1993)
8 Berger v. Matthews, 216 Ill.App.3d 942, 944 (2nd Dist., 1991); Physicians Insurance Exchange v. Jennings, 316 Ill.App.3d 443, 453-454 (1st Dist., 2000)
9. Payne v. Coates-Miller, Inc., 68 Ill.App.3d 601, 608 (1st Dist., 1979); Cygnar v. Martin-Trigona, 26 Ill.App.3d 291, 293-294 (4th Dist., 1975)
10. Browning, Ektelon Division v. Williams, 348 Ill.App.3d 830, 833 (1st Dist., 2004)
11. Johnson v. Thomas, 75 Ill.App.2d 407, 411-412 (1st Dist., 1966)
12. Earles v. Earles, ___ Ill.App.3d ___ (#3-03-0123) (3rd Dist., 2004) (2004 WL 2008504, pp. 2-3)
13. James v. Lifeline Mobile Medics, 341 Ill.App.3d 451, 455 (4th Dist., 2003)