ARE CIRCUIT COURTS DEPRIVED OF JURISDICTION AFTER THE FILING OF A NOTICE OF APPEAL? (Part Four)

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in March, 2005

Part One of this topic discussed the basics of vesting, divesting and re-vesting of appellate jurisdiction. Parts Two and Three expanded on those general principles by providing specific examples of actions that circuit courts may take in criminal and civil cases following the filing of a notice of appeal. Part Four outlines the doctrine of re-vestment and its effect on appellate jurisdiction.

Part Four

RE-VESTMENT OF JURISDICTION IN THE TRIAL COURT

Re-vestment of the jurisdiction of the trial court is an oft-ignored reality of litigation. Even unwittingly, one or more parties can breathe new appellate life into a case in which the right to appeal has already expired. This occurs when a litigant participates in proceedings that are inconsistent with the previous orders of the court. Thus, re-vestment can correct jurisdictional deficiencies in the proceedings so that they cannot be raised successfully on appeal. While the acts that cause re-vestment of jurisdiction do not often occur after the filing of a notice of appeal, application of the doctrine can resurrect the trial court's authority to act even after the filing deadline for a notice of appeal has passed.

Re-vestment occurs when a party benefiting from an order actively participates in the case in a manner that is inconsistent with the merits of a prior order or judgment and fails to object to the jurisdiction of the trial court. Even though more than 30 days has passed following the entry of final judgment, participation in further motions or hearings re-vests the trial court with both subject matter and personal jurisdiction over the case.1 Once re-vestment occurs, the party who would have benefited from a final judgment waives the right to contest the validity and enforceability of a subsequent order or judgment. These subsequent proceedings nullify the previous order, even absent the filing of any motion to vacate.2, 3 The acts of the parties, not those of the court, result in re-vestment of jurisdiction.4

The key to defeating a claim of re-vestment is registering an objection to the jurisdiction of the court. The jurisdictional objection may be combined with other defenses to a motion or petition without forfeiting the ability to challenge re-vestment. For example, in Kempa v. Murphy, 260 Ill.App. 3d 701, 704-705 (2nd Dist., 1994), the parties entered into a settlement agreement and dismissed the breach of contract suit with prejudice. Nineteen months later, one of the parties to the settlement sought enforcement of the agreement by filing a rule to show cause. The opposing party filed a motion to strike that alleged jurisdictional objections and other contentions. Re-vestment did not apply because the opponent of the petition did not ignore the judgment or re-try the case.

At first glance, this doctrine seems to defy the notion that the trial court loses jurisdiction once more than 30 days passes from the entry of a final judgment. However, re-vestment is perhaps the best example of the point of this entire topic, namely, that appellate jurisdiction is a fluid concept and is not applied rigidly. Re-vestment is permitted because the test of jurisdiction is not solely a function of the passage of time; rather, the test is whether the trial court is considering a justiciable matter. As long as the parties appear and submit their case to the court, it retains the power to adjudicate the controversy.5

Surprising though it may seem, re-vestment can occur months or even years after the entry of a final judgment, even if that judgment dismissed the lawsuit. For example, in Johnson v. Empire Mutual Insurance Co., 70 Ill.App.3d 780, 781-783 (1st Dist., 1979), the trial court entered an order dismissing a breach of contract and libel action. Subsequently, orders were entered over a period of nine months vacating the dismissal, setting the case for trial, dismissing the case on a second occasion, denying motions to vacate, denying a motion for change of venue, and eventually setting the case for trial. Even though the judgment was appealable for a period of over five months, the failure to register any objection to the presentation of the motions or to contest the jurisdiction of the trial court served to re-vest the lower court with jurisdiction.

Similarly, in Elmore v. Elmore, 219 Ill.App.3d 61, 63-65 (3rd Dist., 1991), one of the parties to a divorce case filed a post-judgment proceeding to modify an agreed property distribution approximately 10 months after the entry of the final judgment. The parties agreed to the modification based on their changed circumstances. Despite the fact that the Marriage and Dissolution of Marriage Act prohibits modification of a property settlement more than 30 days after its entry absent a showing of changed conditions, re-vestment permitted the parties to stipulate to this finding and to modify the judgment.

How long is too long to permit re-vestment of jurisdiction? No decision has placed a limitation on application of the doctrine, so apparently time is never of the essence. The two-year limit for filing a section 2-1401 petition does not establish a barrier to application of re-vestment principles for an even longer period of time. In fact, one appellate case approved of re-vestment of jurisdiction almost four years following the entry of judgment.6

However, once the jurisdiction of the Appellate Court attaches to a final judgment, the doctrine of re-vestment cannot be invoked until the reviewing court mandate has been filed in the circuit court.7 Thus, in Bank of Viola v. Nestrick, 94 Ill.App.3d 511, 513-516 (3rd Dist., 1981), the trial court improperly acted on the merits of a case on appeal prior to the filing of the Appellate Court mandate simply by scheduling the case for trial. On appeal for the second time, the reviewing court determined that jurisdiction could not be re-vested before the filing of the mandate. The Third District reached this conclusion even though the trial date was set after the decision was entered in the first appeal and the default judgment was only entered after the filing of the mandate. The decision also noted the requirement of Supreme Court Rule 369 that the party seeking to proceed in the trial court after the filing of the mandate must provide at least 10 days' notice of the next court date.

Therefore, Bank of Viola upholds the supremacy of the jurisdiction of the reviewing court when the rules of appellate finality clash with actions of the circuit court.

Part Five provides specific examples of re-vestment of the jurisdiction of the trial court in criminal and civil cases.

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: larry.wechter@sbcglobal.net. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.

Footnotes

1. People v. Kaeding, 98 Ill.2d 237, 240-241 (1983); People v. Eddington, 129 Ill.App.3d 745, 751 (4th Dist., 1984); Kempa v. Murphy, 260 Ill.App. 3d 701, 704-705 (2nd Dist., 1994)

2. Sears v. Sears, 85 Ill.2d 253, 260 (1981); Gentile v. Hansen, 131 Ill.App.3d 250, 254-256 (1st Dist., 1985)

3. Please note that active participation in the case means more than filing a motion that is later abandoned without obtaining a ruling. Wilkins v. Dellenback, 149 Ill.App.3d 549, 554-556 (2nd Dist., 1986)

4. Harchut v. OCE/Bruning, Inc., 289 Ill.App.3d 790, 795-796 (1st Dist., 1997)

5. Faust v. Michael Reese Hospital & Medical Center, 79 Ill.App.3d 69, 72-73 (1st Dist., 1979); Stevens v. City of Chicago, 119 Ill.App.2d 366, 372-373 (1st Dist., 1970)

6. Marriage of Adamson and Cosner, 308 Ill.App.3d 759, 766-767 (2nd Dist., 1999)

7. You may recall my warning in Part One against the trial court acting on a case pending in the reviewing court until the filing of the mandate (see Fallacy #4).