Although the doctrine of revestment in itself is not complicated, its application often is. The Illinois Supreme Court has recognized the history of the application of this doctrine as far back as 1905.1 Generally, a court loses jurisdiction when more than 30 days have passed since the judgment was entered.2 Essentially, the doctrine of revestment re-instates the court’s jurisdiction after the 30 days have passed.3 Appellants often try to rely on revestment of the trial court’s jurisdiction to establish appellate court jurisdiction.4 Therefore, it is essential for attorneys to understand the meaning and application of the doctrine of revestment.
The continued viability of the doctrine has recently come into question with the Illinois Supreme Court’s ruling in People v. Flowers.5 Since the Supreme Court’s decision in Flowers, the Second District has been the most active district in attempting to ascertain the effect of the Flowers decision.6 The Second District ultimately decided that the Flowers decision did not abrogate the doctrine of revestment.7
This article will address the impact of the Flowers decision on the doctrine of revestment. To begin, this article will discuss the history of the doctrine. A brief examination of the facts of the Flowers decision will follow. A discourse of the Flowers court’s reasoning and the practical impact of the decision will encompass the final section. This article ultimately concludes that the Flowers court effectively invalidated the doctrine of revestment.
History of the Doctrine of Revestment
The Supreme Court of Illinois recognized the deep roots of the doctrine of revestment in People v. Kaeding.8 This "well-established rule"9 allows an appellant to bring forth issues before the court that may not have otherwise been heard for lack of jurisdiction. In order for the doctrine to apply, "the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment."10 Therefore, the court is revested with personal and subject matter jurisdiction even after the required time, in which post-judgment motions can be filed, has lapsed.11 In looking at the history of this doctrine, this article will analyze pre-Flowers cases. The history section will also break down the definition provided in Kaeding into two parts.12
The first part, active participation without objection,13 has not been point-blank defined by the Illinois courts. The Second District has viewed active participation as where "the benefiting party ignores the judgment and starts to retry the case."14 This would mean that the party for whom the judgment was in favor disregards the judgment and continues to pursue the case as if the judgment had not been entered. The appealing party makes a motion after the time allotted by statute and the opposing party forges ahead without objection.
Possibly the best way to determine more clearly what the court means by active participation is to look at a few examples where the court specifically labeled action as either active or inactive. In Kaeding, the Illinois Supreme Court not only found the defendant’s participation active but "extensive."15 Unfortunately the case is vague on exactly how the defendant participated, however, the court does acknowledge that the Department’s motion attacked the substance of the order and therefore the defendant’s lack of objection revested the court with jurisdiction despite the time the motion was filed.16 Additionally, there was no indication the defendant objected to the court’s jurisdiction.17
In a First District case the court lists several examples of both parties’ active participation in the proceedings.18 The court enumerates actions by both parties that constituted active participation.19 "These examples include, but are in no way limited to, the grant of leave to file further pleadings, the filing of the second amended complaint and the filing of the answer thereto."20 Not only did the court find these actions as active participation, but the court also noted that at no time in the examples enumerated did either party make jurisdictional objections.21
Unlike Kaeding and Parkway Bank, the court in Allstate Insurance Co. v. Anderson found plaintiff’s actions did not constitute active participation.22 The court in Allstate recognized that the doctrine of revestment "often applies to actions dismissed for want of prosecution."23 In Allstate the plaintiff filed a "motion to vacate the extraneous order of dismissal for want of prosecution."24 However, the court found that the "[p]laintiff was merely performing a housekeeping action and did nothing to revest the court with jurisdiction."25
Although discussing various cases where the courts have determined action to be either active or inactive is a helpful exercise, it seems that the determination of whether the doctrine of revestment applies comes down to the nature of the proceedings. Not only do the parties have to actively participate without objection, this participation must be in further proceedings inconsistent with the prior order.26 The distinction between consistent and inconsistent is not as hazy as active and inactive. The First District defined conduct that is inconsistent with a prior order as "any conduct which can reasonably be construed as an indication that the parties do not view the prior order as final and binding."27 The Second District has also discussed the meaning of inconsistent conduct. In People v. Miraglia, the court found that "the parties did not ignore the judgment, start to retry the case, and imply by their conduct that they consented to having the judgment set aside. Rather, the proceedings were adversarial in nature and concerned whether the judgment should be set aside."28
In order to understand the setting of the Flowers case and the reasoning behind the court’s decision, it is necessary to briefly discuss the background of the case. On April 5, 1999, defendant Eleanor Flowers pled guilty to seven counts of forgery.29 Her plea agreement with the State consisted of the State suggesting four-year concurrent sentences.30 The judge did not accept the plea agreement and on July 14, 1999 sentenced the defendant to concurrent five-year prison terms rather than four-year prison terms.31 Defendant untimely filed a motion to reconsider the sentence.32 "The motion was denied, and the defendant appealed."33
The State argued that defendant’s failure to comply with Supreme Court Rule 604(d), by filing an untimely motion, caused the court to lack jurisdiction.34 The court found, under People v. Belcher,35 "there can be no doubt that failure to comply with Rule 604(d) does not result in a lack of appellate jurisdiction."36 Because of Belcher, the court found that it was not required to dismiss the appeal on lack of jurisdiction.37 The court further found that under the exception in Belcher it could consider the merits of the defendant’s case.38 The court felt "[t]he ends of justice would be better served by addressing the unauthorized aspects of the defendant’s sentence rather than by dismissing her appeal for failure to strictly comply with Rule 604(d)."39 However, the court ultimately affirmed the circuit court’s decision.40
Under Rule 315, the State petitioned for leave to appeal and the Supreme Court of Illinois granted the petition.41 The Supreme Court framed the issue as "whether a criminal defendant who has pleaded guilty may challenge the validity of her sentence on appeal where she did not file the postjudgment [sic] motion required by Supreme Court Rule 604 [citation omitted] until after the circuit court’s subject matter jurisdiction had expired."42 The Court stated that unless the trial court granted an extension, prior to the 30-day deadline, the motion must be filed within the allotted time by Rule 604.43 The Court found that "by the time Flowers filed her Rule 604(d) motion, the circuit court no longer had authority to consider it."44
The Court further found that the appellate court did not consider the circuit court’s loss of subject matter jurisdiction, but instead considered the merits of the appeal relying on the Supreme Court’s decision in Belcher.45 However, the Supreme Court found the appellate court’s application of Belcher inappropriate.46 The Court found that:
Because the circuit court had no jurisdiction to consider Flowers’ Rule 604(d) motion, the appellate court, in turn, had no authority to consider the merits of her appeal from the circuit court’s judgment denying her motion. The only matter properly before the appellate court was the circuit court’s lack of jurisdiction over Flowers’ untimely Rule 604(d) motion.47
The Court’s final decision was that the judgments of both the circuit and appellate courts were vacated and the case was "remanded to the circuit court with directions to dismiss the proceedings for lack of jurisdiction."48
Flowers Impact on the Doctrine of Revestment
In assessing the impact the Flowers decision had, or did not have, on the doctrine of revestment, two main points will be examined. The first point will be brief. It will put forward the problematic language of the Flowers decision. The second point will assess the damage of this language. Through this discussion, the argument that the Flowers decision effectively abrogated the doctrine of revestment will be advanced.
Keeping the facts of Flowers in mind, the problematic language deals with the loss of jurisdiction, and whether the court could retain or regain that jurisdiction.49 The Court held as follows:
That the trial court had lost jurisdiction to consider Flowers’ overdue Rule 604(d) motion was not raised by the State when the motion was filed and considered. The absence of such an objection, however, did not give the trial court the authority to proceed. Lack of subject matter jurisdiction is not subject to waiver (see People v. Williams, 53 Ill.App.3d at 337, 11 Ill.Dec. 155, 368 N.E.2d 706) and cannot be cured through consent of the parties (Toman v. Park Castles Apartment Building Corp., 375 Ill. 293, 302, 31 N.E.2d 299 (1940)).50
Although the Court does not say the words "doctrine of revestment," the Court operatively nullified the doctrine.
Since the Flowers decision, there are have been six cases in Illinois where the courts have discussed and/or applied the doctrine of revestment.51 The Second District has been the most active in addressing the "continued vitality"52 of the revestment doctrine post-Flowers. In Price, the Second District recognized the conflict of the Flowers decision and questioned the likelihood of the Illinois Supreme Court overturning the revestment doctrine without using the word revestment.53 The court eventually decided we must leave open the question of whether, and to what extent, the revestment doctrine survives the supreme court’s decision in Flowers, because, even assuming the revestment doctrine as articulated in Kaeding remains the law in Illinois, and even setting aside the supreme court’s decision in Flowers, the doctrine is of no avail to defendant under the facts of this case.54
The Second District would, however, get its chance to decide the impact Flowers had on the doctrine of revestment. In People v. Montiel,55 the Second District decided that the Flowers decision did not abrogate the doctrine of revestment.56 The Montiel court found that the language used by the Flowers court was "essentially indistinguishable"57 from the Toman decision of more than half a century ago.58 In support of its position, the Montiel court cited the use of the revestment doctrine in Kaeding as proof that the Toman decision did not eliminate the doctrine of revestment.59 Therefore, "[i]f Toman did not eliminate the doctrine of revestment (as Kaeding shows that it did not), then neither did Flowers, which simply expresses the same principles as Toman."60
However, the Montiel court recognized that "cases accepting the doctrine of revestment are admittedly in tension with Flowers and Toman."61 But the court drew a brightline. The differences between Flowers/Toman and the doctrine of revestment is that Flowers/Toman held that consent cannot revest a court with jurisdiction whereas the doctrine of revestment holds that active participation can revest jurisdiction.62 Using this distinction, the Montiel court determined that the facts in Flowers show that the conditions for the doctrine of revestment were not met due to lack of evidence that the State in Flowers actively participated in defendant’s motion.63
On the surface, the Montiel distinction between consent and active participation seems, at the least, plausible. However, once the distinction is examined in light of the Second District’s previous applications of the doctrine of revestment, it becomes clear that the brightline is perhaps not so bright. In Wilkins the Second District explored the meaning of active participation and concluded that it meant that "the benefiting party ignores the judgment and starts to retry the case."64 It is clear that there is a marked difference between consent and continuing to pursue or try a case as if a judgment had never been entered, however, the Second District has not consistently followed its own brightline. Simply turning back to Montiel and assessing the facts in light of the Second District’s definition of active participation found in Wilkins, weakens the Montiel court’s consent/active participation distinction.
In Montiel, the defendant filed a motion to reduce his sentence.65 "The State described the . . . motion as ‘some sort of post-conviction petition’ and asked for ‘a 402 conference.’ After a conference between the parties and the court, the court told the defendant that he had filed his motion for reduction of the sentence too late, but that, with the State’s agreement, the court was reducing his sentence to four years’ imprisonment" (emphasis added).66 The court acknowledged the State’s characterization of the motion as "some sort of post-conviction petition" could signify the State believed it was participating in a new action.67 The court found that when the lower court addressed the issue of defendant’s motion being too late and the possible issue of revestment, the State did not speak up and clarify its belief that this was a new action.68 The State’s lack of clarification can hardly be characterized as active participation. In fact, the lower court explicitly described the State’s action as an agreement.69 Despite the glaring facts that support consent over active participation, the Montiel court still found the State’s actions to constitute active participation.70
Unfortunately, two subsequent cases to Montiel followed the court’s flawed analysis. The Second District in Lowenthal relied on Montiel to continue to apply the doctrine of revestment.71 Similarly, the court in Gargani accepted the Montiel analysis and applied the doctrine.72 Two other districts have applied the doctrine of revestment post-Flowers. Neither of those districts even mentioned the Supreme Court’s holding in Flowers and instead simply applied the doctrine of revestment.73
The Second District’s distinction between consent and active participation may fundamentally be correct; however, its application of its alleged distinction does not demonstrate any meaningful difference. Through examining the facts and reasoning of the Flowers decision and subsequent cases, the impact of Flowers has yet to be fully seen. The language of Flowers suggests, at the very least, a modification of the doctrine of revestment and, at the most, an absolute abrogation of it. The lack of specificity and the fact that the Flowers court did not use the word revestment leave the discussion wide open. Although the Second District may be off point, its attempts to discern the impact of the Supreme Court’s decision are laudable. The only way to truly determine the impact of Flowers is to continue to challenge the viability of the doctrine of revestment.
1 People v. Kaeding, 98 Ill.2d 237, 240-41, 456 N.E.2d 11 (1983) (referencing, among other cases, Grand Pacific Hotel, Co. v. Pinkerton, 217 Ill. 61, 83-84, 75 N.E. 427 (1905)).
2 In re Marriage of Wharrie, 182 Ill. App. 3d 434, 435, 538 N.E.2d 183 (3rd Dist. 1989).
3 See generally, Kaeding, 98 Ill.2d at 240.
4 See Kaeding, 98 Ill.2d at 241 (stating that the doctrine "enjoys continued vitality in our appellate court").
5 208 Ill.2d 291, 303 802 N.E.2d 1174 (2003) (holding that "[l]ack of subject matter jurisdiction is not subject to waiver [citation omitted] and cannot be cured through consent of the parties [citation omitted]").
6 See People v. Montiel, 365 Ill. App. 3d 601, 604, 851 N.E.2d 725 (2d Dist. 2006) (holding the Flowers decision did not abrogate the doctrine of revestment), People v. Price, 364 Ill. App. 3d 543, 547, 846 N.E.2d 1003 (2d Dist. 2006) (acknowledging the possibility that the doctrine of revestment is no longer viable in Illinois, but ultimately holding the doctrine being inapplicable to the defendant regardless of the Flowers decision), Lowenthal v. McDonald, 367 Ill. App. 3d 919, 924-25, 856 N.E.2d 1118 (2d Dist. 2006) (recognizing the conflict between the doctrine and the Flowers decision, but relying on the Second District’s holding in Montiel as proof of the survival of the doctrine).
7 Montiel, 365 Ill. App. 3d at 604.
8 98 Ill.2d at 240-41.
9 Id. at 240.
10 Id. at 241 (citing Sears v. Sears, 85 Ill.2d 253, 260, 422 N.E.2d 610 (1981), Ridgely v. Central Pipe Line Co. 409 Ill. 46, 50, 97 N.E.2d 817 (1951)).
11 Id. at 240.
12 Djikas v. Grafft, 344 Ill. App. 3d 1, 12, 799 N.E.2d 887 (1st Dist. 2003) (holding "the elements essential to revesting the court with jurisdiction are ‘(1) the active participation by the parties without objection (2) in further proceedings inconsistent with the prior order.’") (citing Ridgely v. Central Pipe Line Co., 409 Ill. 46, 50, 97 N.E.2d 817 (1951)).
14 Wilkins v. Dellenback, 149 Ill. App. 3d 549, 555, 500 N.E.2d 692 (2d Dist. 1986) (citing Archer Daniels Midland Co. v. Barth, 103 Ill.2d
536, 539, 470 N.E.2d 290 (1984)), Sears v. Sears, 85 Ill.2d 253, 260, 422 N.E.2d 610 (1981)).
15 Kaeding, 98 Ill.2d at 241.
18 Yugoslav-American Cultural Center v. Parkway Bank and Trust Co., 327 Ill. App. 2d 143, 149, 763 N.E.2d 360 (1st Dist. 2001).
22 329 Ill. App. 3d 93, 96, 768 N.E.2d 329 (1st Dist. 2002).
26 Supra n.12.
27 Kandalepas v. Economou, 269 Ill. App.3d 245, 251, 645 N.E.2d 543 (1st Dist. 1994). See also Gentile v. Hansen, 131 Ill.App.3d 250, 255, 475 N.E.2d 894 (1st Dist. 1984), Yugoslav-American Cultural Center v. Parkway Bank and Trust Co., 327 Ill.App.2d 143, 149, 763 N.E.2d 360 (1st Dist. 2001),Djikas v. Grafft, 344 Ill.App.3d 1, 12, 799 N.E.2d 887 (1st Dist. 2003).
28 323 Ill. App. 3d 199, 206, 753 N.E.2d 398 (2d Dist. 2001).
29 People v. Flowers, 333 Ill. App. 3d 60, 61-62, 775 N.E.2d 96 (3rd Dist. 2002).
30 Id. The case also dealt with the issue of restitution; however, this issue has no bearing on the revestment doctrine and therefore will not be discussed. For a discussion on the restitution issue see id.
32 Id. at 61.
33 Flowers, 333 Ill. App. 3d at 61.
34 Id. (citing People v. Wilk, 124 Ill.2d 93, 529 N.E.2d 218 (1988)). The State also argues that the form of defendant’s motion was incorrect under Rule 604(d); however, this issue is of no concern to the discussion at hand.
35 199 Ill.2d 378, 382-84, 769 N.E.2d 920 (2002).
36 Flowers, 333 Ill.App.3d at 65.
37 Id. at 66.
38 Id. at 66, 65 (reading the Belcher exception to be that if the facts were different than what was known by the defendant at the time the defendant entered a guilty plea, justice is better served by allowing the defendant to withdraw a guilty plea than to demand strict compliance with Rule 604(d)).
39 Id. at 66.
40 Id. at 67 (affirming the lower court’s decision in all aspects except in regards to restitution).
41 Flowers, 208 Ill.2d at 300.
42 Id. at 294.
43 Id. at 300.
44 Id. at 303 (finding that "Flowers made no effort to seek any relief under Rule 604(d) until more than 16 months had passed following the imposition of sentence and the trial court had lost all jurisdiction over the matter." Id. at 305).
45 Flowers, 208 Ill.2d at 304.
46 Id. at 304-06 (stating several reasons for the differences in the cases, one being that in Belcher the defendant timely filed his motion).
47 Id. at 307.
48 Id. at 309.
49 Id. at 303.
50 208 Ill.2d at 303.
51 Brentine v. DaimlerChrysler Corp., 356 Ill. App. 3d 760, 766, 826 N.E.2d 1057 (1st Dist. 2005); In re Marriage of Miller, 363 Ill. App. 3d 906, 914-15, 845 N.E.2d 105 (4th Dist. 2006); People v. Price, 364 Ill. App. 3d 543, 545-47, 846 N.E.2d 1003 (2d Dist. 2006); People v. Montiel, 365 Ill. App. 3d 601, 604-05, 851 N.E.2d 725 (2d Dist. 2006); Lowenthal v. McDonald, 367 Ill. App. 3d 919, 924-25, 856 N.E.2d 1118 (2d Dist. 2006); People v. Gargani, No. 2-05-0478, 2007 WL 529913, at *2 (D. Ill. Feb. 14, 2007).
52 Price, 364 Ill. App. 3d at 547 (quoting
People v. Kaeding, 98 Ill. 2d 237, 241, 456 N.E.2d 11 (1983)); Montiel, 365 Ill. App. 3d at 604-05.
53 Price, 364 Ill.App.3d at 547.
55 Montiel, 365 Ill. App. 3d 601.
56 Id. at 604.
57 Id. at 605.
58 Id. (citing
Toman v. Park Castles Apartment Building Corp., 375 Ill. 293, 302, 31 N.E.2d 299 (1940)).
59 Id. (citing People v. Kaeding, 98 Ill.2d 237, 241, 456 N.E.2d 11 (1983)).
60 Montiel, 365 Ill. App. 3d 605.
64 Wilkins, 149 Ill. App. 3d at 555.
65 Montiel, 365 Ill. App. 3d at 603 (filing for other motions as well, however, those other motions are irrelevant to the discussion of the doctrine of revestment).
67 Id. at 605.
69 Id. at 604.
70 Montiel, 365 Ill. App. 3d at 605.
71 Lowenthal, 367 Ill. App. 3d at 924-25.
72 Gargani, 2007 WL 529913, at *2.
73 DaimlerChrysler Corp., 356 Ill. App. 3d at 766; In re Marriage of Miller, 363 Ill. App. 3d at 914-15.
Laura Mruk is a second year law student at Northern Illinois University. She is a member of Law Review and the Moot Court Society.