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Pending Appeal Deprives Trial Court Of Power To Reinstate Dismissed Case

By Steven R. Merican

Magdalena Wierzbicki claimed her doctors failed to make a proper diagnosis of her medical problem. So she sued Drs. Gleason and Danczkewycz for medical malpractice. The case was more than two and a half years old when she dismissed it voluntarily. A year later she re-filed it. Then the procedural fun began.

Two status conferences were set for different times on the same day. Magdalena missed the first, so the trial court dismissed the case for want of prosecution. Her lawyer appeared for the second status, at which a discovery extension was ordered.

When the trial court judge realized competing orders were entered, she ordered the parties to return about a week later. But Magdalena missed that status conference, too. The trial court then vacated the discovery extension and let the order that dismissed the case stand.

One month later, Magdalena asked the court to vacate the dismissal. But the trial court denied the motion. Magdalena asked the court to reconsider. Ten months later, the trial court granted Magdalena?s request to reconsider and vacated the dismissal. A month after that, Drs. Gleason and Danczkewycz appealed the order that vacated the dismissal. The circuit court stayed all proceedings pending the appeal.

More than a year later, while the appeal still was pending, the trial court called a hearing of all parties. The judge told the parties that she had been informed that Magdalena?s lawyer ?asked one of the [court clerk] supervisors to make a deletion from the electronic docket of a particular order that would be germane to this case.?

Magdalena?s lawyer denied the charge, but the trial court didn?t buy it. The judge changed her mind about Magdalena?s request to vacate the dismissal, and ruled that Magdalena had not satisfied the elements of a request to vacate a dismissal. The court vacated its order that vacated the dismissal. The effect was to reinstate the dismissal of the case.

Gleason and Danczkewycz then withdrew their appeal. But Magdalena filed her own appeal from the dismissal of her case.

The first question was whether the circuit court had jurisdiction to reinstate the dismissal. The rub came because the trial court?s order reinstating the case was entered while the appeal by Gleason and Danczkewycz was pending.

The general rule is that filing a notice of appeal divests the trial court of jurisdiction ?to enter any order involving a matter of substance and thereafter [the trial court] retains jurisdiction only to decide matters independent of and collateral to a judgment.? Magdalena argued the pending appeal by Gleason and Danczkewycz deprived the trial court of the power to reinstate the dismissal, rendering the trial court?s order void.

On the other hand, the doctors argued that the trial court order was valid because (1) Magdalena did not object to the trial court?s jurisdiction and (2) by appealing the order Magdalena acted as if the order were valid. The doctors relied on the doctrine of revestment, which permits trial court ?jurisdiction over a case after it has been dismissed if the parties subsequently ignore the dismissal and continue litigating the case.?

The First District Illinois Appellate Court sided with Magdalena. The appellate court reversed the trial court, thus reinstating Magdalena?s lawsuit. The appellate court stated that revestment, ?as now urged by defendants [Gleason and Danczkewycz], would be inconsistent with the settled legal principles that a party may challenge a void order at any time and that such a claim may not be waived.? The appellate court also ruled that Magdalena?s conduct did not imply that she ?consented? to setting aside the dismissal order ?as is required to trigger the effect of the revestment doctrine.?

Read the whole opinion, Wierzbicki v. Gleason, No. 1-06-3756 (3/6/09), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on July 22, 2009 (boomark / email).