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

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in May, 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 outlined the doctrine of re-vestment and its effect on trial and appellate jurisdiction. This final part details specific instances applying re-vestment to criminal and civil cases.

APPLICATION OF THE DOCTRINE OF RE-VESTMENT IN CRIMINAL AND CIVIL CASES

Criminal Cases

As discussed in a previous article, the most common sequence of events leading to an appealable criminal case is the entry of a verdict or finding of guilty, the filing of a post-trial motion, denial of that motion, the imposition of sentence, the filing of a post-sentencing motion, denial of the post-sentencing motion, then the filing of the notice of appeal.1 While the court enters judgment on the verdict or finding of guilty, the imposition of sentence is the final judgment. Therefore, criminal cases present two opportunities for re-vestment.

1. Post-trial motions

Under the "typical" sequence of events just noted, the filing of a post-trial motion following the sentencing hearing would normally be considered untimely. However, the motion may re-vest the court with jurisdiction even after the imposition of the sentence where the State participates in subsequent proceedings without objection.2 Remember that the State waives its right to object to the untimeliness of the motion when the case is appealed because the prosecution surrendered the benefit it would have received from allowing the final judgment to remain in place.3

2. Post-sentencing motions

The prosecution can also surrender its ability to challenge the finality of a sentence by participating in a hearing on post-sentencing motions that were not timely filed. For example, in People v. Watkins, 325 Ill.App.3d 13, 17 (2nd Dist., 2001), the defense filed its post-sentencing motions four months after the court's decision on the sentence, rather than within the 30-day time limit contained in 730 ILCS 5/5-8-1(c). Because the State participated in a full hearing on the motions without objecting to their untimely filing, the circuit court was re-vested with the jurisdiction it lost 30 days after sentencing.

Interestingly, re-vestment can also work in favor of the State in the sentencing context. In People v. Kaeding, 98 Ill.2d 237, 240-241 (1983), the prosecution filed a motion challenging the validity of the sentence five months after its imposition. Since the defense did not object to the motion and actively participated in the proceeding, the outcome of the hearing could not be challenged later on jurisdictional grounds.

However, the State cannot re-vest jurisdiction to re-sentence the accused following a successful appeal of a different conviction. In People v. Lewis, 191 Ill.App.3d 155, 161 (4th Dist., 1989), the defendant appealed only one of his three convictions, eventually resulting in a federal court order requiring re-sentencing of Lewis on that single conviction. The State's effort to re-vest jurisdiction in order to impose sentence on the two remaining convictions was not successful because Lewis appealed only one of his convictions.

Civil Cases

1. Dismissal for want of prosecution (DWP)

A trial court may re-acquire jurisdiction by means of re-vestment following the entry of a variety of dismissal or judgment orders. For example, the entry of an order of dismissal for want of prosecution may be nullified by active participation of the parties in subsequent proceedings, even absent the entry of an order vacating the DWP finding. The cases do not impose any requirement that specific orders are required to nullify a prior DWP. Examples include orders concerning the representation of a party or briefing and arguing case-dispositive motions.4

2. Orders striking pleadings and dismissing the action

Re-vestment also applies following the entry of an otherwise appealable order striking the pleadings and dismissing the action. The Supreme Court ruled in Ridgely v. Central Pipe Line Co., 409 Ill. 46, 48-50 (1951), that re-vestment permitted consideration of a motion to amend an amend an answer and counterclaim, even though it was filed more than 60 days after striking of the earlier pleading, because the plaintiff failed to object to the jurisdiction of the court and appeared generally in opposition to the motion.

3. Default judgments

Similarly, default judgments can be nullified where the party benefited by the default participates in a hearing seeking to vacate the judgment. In Asumendi v. Fortman, 58 Ill.App.3d 186, 189-192 (2nd Dist., 1978), the plaintiff appeared, answered the defense motion to vacate, and did not contest jurisdiction, even though the motion was filed six weeks after the entry of the default. The vacation of the judgment was upheld by the Second District because the plaintiff waived the jurisdictional issue by participation in the case for one year following the entry of an otherwise final default judgment.

4. Relationship to post-trial motions

The re-vestment doctrine contains a limitation in civil cases that dovetails with the definition of a post-trial motion. For purposes of calculating the time for filing an appeal, a motion filed after the entry of judgment is not considered a post-trial motion if it does not seek relief from the court's order, such as re-trial, judgment NOV, or other similar relief.5

The same rule determines whether a motion filed after the entry of a civil judgment will re-vest the circuit court with jurisdiction. In other words, a motion that is not directed against the merits of the judgment cannot result in re-vestment. This principle was followed in Allstate Insurance Co. v. Anderson, 329 Ill.App.3d 93, 95-96 (1st Dist., 2002), where the trial court granted a motion barring defense rejection of an arbitration award, but entered an order dismissing the case for want of prosecution more than 30 days later. The defense argued that re-vestment occurred when the court granted the plaintiff's motion to vacate the DWP order. However, the reviewing court determined that vacating an order entered by inadvertence which had no effect on the judgment did not constitute active participation in the proceedings inconsistent with the merits of the final order. Thus, clearing stray orders from the court file is considered a "housekeeping" task and not a ruling on the merits of the judgment.6

The Allstate decision highlights the double danger of trying to resuscitate a civil case without paying attention to basic drafting requirements of a post-trial motion. Even if a motion is filed before the 30-day deadline,7 the failure to attack the judgment in some fashion does not toll the period for filing a notice of appeal. Once the deadline has passed, an effort to resuscitate jurisdiction via re-vestment must abide by the same rule, even if the opponent of the motion actively participates in the proceeding without voicing a jurisdictional objection. Thus, the re-vestment doctrine does not permit an end-run around the rule requiring that post-trial motions challenge the substance of the judgment.

5. Modification of previous judgments

Re-vestment also permits the modification of old judgments. This may occur even In the dissolution of marriage context, where statutory restrictions exist on modification of judgments.8 Since re-vestment resurrects jurisdiction, an appeal may be available from a new final judgment that would not have been entered in the absence of re-vestment. For example, in Marriage of Adamson and Cosner, 308 Ill.App.3d 759, 766-767 (2nd Dist., 1999), the parties agreed to modify the terms of a judgment of dissolution of marriage. Despite the fact that the original judgment was nearly four years old, the parties' agreement validated the modified judgment, as well as permitting enforcement of a subsequent contempt finding based on the failure to comply with the modified order.

5. Participation in appeals

Finally, re-vestment can be based on a party's participation in appellate proceedings that ignore an order of dismissal in the trial court. Upon remand, re-vestment principles permit reinstatement of the case despite the dismissal order.9 Thus, appeals triumph again, because actions taken on appeal can re-vest a court with the authority to act at the trial level --- hopefully spawning yet another appeal.

I hope that this five-part odyssey through the world of trial and appellate jurisdiction has dispelled the notion that jurisdiction is a rigid and inflexible concept and that the filing of a notice of appeal immediately terminates all authority of the trial court.

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. See "Post-Sentencing Motions in Criminal Cases or 'I Thought I was Finished with this Client' (Part One)" (Bar Briefs, June 2004)

2. People v. Eddington, 129 Ill.App.3d 745, 751 (4th Dist., 1984)

3. Gentile v. Hansen, 131 Ill.App.3d 250, 254-256 (1st Dist., 1985); see Bar Briefs, March 2005 (Part Four)

4. Gentile v. Hansen, 131 Ill.App.3d 250, 254-256 (1st Dist., 1985); Esin v. Liberty Mutual Insurance Co., 99 Ill.App.3d 75, 80-81 (2nd Dist., 1981)

5. See "Post-Judgment Motions in Civil Non-Jury Cases: Don't Sweat the Small Stuff any More?" (Bar Briefs, October 2003)

6. The case of Djikas v. Grafft, 344 Ill.App.3d 1, 11-13 (1st Dist., 2003), reaches a different result in dictum.

7. 735 ILCS 5/2-1202(c) & 735 ILCS 5/2-1203(a)

8. 750 ILCS 5/510

9. Faust v. Michael Reese Hospital & Medical Center, 79 Ill.App.3d 69, 72-73 (1st Dist., 1979)