GLENS OF HANOVER CONDOMINIUM ASSOCIATION, Plaintiff-Appellee, v. IMTIAZ CARBIDE, Defendant-Appellant (All Unknown Occupants, Defendants).
No. 2-13-0432
Appellate Court of Illinois, Second District
March 12, 2014
2014 IL App (2d) 130432
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisiоns for the convenience of the reader.)
In a forcible entry and detainer action where the trial court entered a default judgment for plaintiff, including attorney fees, and then the appellаte court, on appeal by defendant, reversed the denial of defendant‘s motion to quash service and vacated the default judgment, the trial court properly found that it lacked jurisdiction to сonsider defendant‘s motion to require plaintiff to turn over possession of the condominium and the rents plaintiff had been collecting and plaintiff‘s motion to set its complaint for forcible entry and detainer for trial, since the appellate court did not revest the trial court with jurisdiction where it did not remand the cause.
Decision Under Review
Appeal from the Circuit Court of Du Page County, No. 10-LM-2147; the Hon. James D. Orel, Judge, presiding.
Judgment
Affirmed.
Counsel on Appeal
Sakina Carbide, of Law Offices of Sakina Carbide, of Chicago, for appellant.
David A. Golin, Hal R. Morris, and Allan Goldberg, all of Arnstein & Lehr LLP, of Chicago, for appellee.
Panel
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Schostok сoncurred in the judgment and opinion.
OPINION
¶ 1 Defendant, Imtiaz Carbide, appeals from an order of the circuit court of Du Page County ruling that it was without jurisdiction to decide defendant‘s motion for a turnover of possession of a condominium unit and rents. We affirm.
¶ 2 This matter is before this court for the second time. On June 21, 2010, plaintiff, Glens of Hanover Condominium Association, filed a complaint pursuant to the Forcible Entry and Detainеr Act (
“On the 26 day of October 2012, a Decision of the aforementioned Court was entered and in accordance with the views expressed in the attached Decision the judgment of the trial court is Reversed order [sic]; default judgment vacated.”
¶ 3 On November 30, 2012, defendant filed in the trial court a motion “for turnover of possession, rents and for attorney‘s fees and costs.” The motion alleged that, after this court‘s reversal of the judgment, plaintiff continued in possession and continued to collect rents. Before defendant‘s motion was heard, plaintiff filed a motion to set for trial its complaint for forcible entry and detainer.1 Plaintiff asserted that, by filing the turnover motion, defendant submitted himself to the trial court‘s jurisdiction. On March 28, 2013, the trial court found that this court had not remanded the matter to the trial court, and, thus, the trial court was without jurisdiction to entertain either defendant‘s turnover motion or plaintiff‘s motion to set the cause for trial. Defendant timely appealed.
¶ 4 Defendant first contends that the trial court had jurisdiction. Plaintiff concurs. The parties simply disagree over the scope of that jurisdiction. Both parties miss the mark and rely on cases in which the reviewing court remanded the case to the trial court. Those cases are inapposite, because, here, we reversed without remanding. Both parties ignore Illinois Supreme Court Rule 369(b) (eff. July 1, 1982), which provides as follows:
“When the reviewing court dismisses the appeal or affirms the judgment and the mandate is filed in the circuit court, enforcement of the judgment may be had and other proceedings may be conducted as if no appeal had been taken.” (Emphases added.)
Thus, the trial court is revested with jurisdiction where thе appellate court affirms a judgment or dismisses the appeal. However, the rule is otherwise where the reviewing court reverses the trial court‘s judgment without remanding. “[F]ollowing a reversal without remand, the trial court is not revested with jurisdiction over the case.” Dalan/Jupiter, Inc. v. Draper & Kramer, Inc., 372 Ill. App. 3d 362, 368 (2007).
¶
“There is no doubt about appellee‘s right to have restored tо him the property taken by appellant on reversal of the judgment entered in the replevin case, [citations] but in order to have a judgment of restitution entered, an application for it must be mаde in a court where the cause is pending and which has jurisdiction of the parties. [Citation.] *** [T]he power to make a valid order cannot survive the loss of jurisdiction. There was no case pending in the сircuit court *** when the judgment for a return of the property in question and for costs was entered against appellant, and the order entered by the circuit court is coram non judice.” Watkins, 318 Ill. at 178.
¶ 6 This court followed Watkins in Brandon v. Caisse, 172 Ill. App. 3d 841 (1988). In Brandon, a dissolution-of-marriage case, this сourt, in the first appeal, determined that the cause of action abated upon the wife‘s death, which occurred prior to the entry of the judgment of dissolution. Brandon, 172 Ill. App. 3d at 842. We reversed the judgment of dissolution and property distribution without remanding the cause to the trial court. Brandon, 172 Ill. App. 3d at 844. After our mandate was filed, the wife‘s executor filed in the trial court a petition for fees and costs associated with defending the apрeal. Brandon, 172 Ill. App. 3d at 843. The trial court dismissed the petition on the ground that the petition was untimely, and the executor appealed. Brandon, 172 Ill. App. 3d at 843. We held that, even if the executor had timely filed the fee petition, the trial сourt lacked authority, under Watkins, to consider it. Brandon, 172 Ill. App. 3d at 844-45. We said that “[t]he cause was not remanded to the trial court for any purpose, and the filing of our mandate, which reversed the judgment of the trial court in accordance with the views expressed in the opinion, did not revest that court with authority to act further in the case.” Brandon, 172 Ill. App. 3d at 844.
¶ 7 The Watkins rule was recently reviewed in McNeil v. Ketchens, 2011 IL App (4th) 110253, where the appellate court held that the trial court is revested with jurisdiction pursuant to Rule 369(b) if the aрpellate court affirms in part and reverses in part, because, without such jurisdiction, the trial court would be precluded from entering any order at all relating to the affirmance. McNeil, 2011 IL App (4th) 110253, ¶ 21. Here, of course, we reversed without remanding, which did not revest jurisdiction pursuant to Rule 369(b).
¶ 8 The Watkins rule distinguishes the instant situation from that posed by defendant, where the trial court retains jurisdiction over ministerial matters after a notice of аppeal is filed but before the appellate court disposes of the appeal. Defendant likens the present situation to that in Berger v. Matthews, 216 Ill. App. 3d 942 (1991), where this court held that a claim for fees that is collateral to the judgment being appealed does not affect the appealability of the judgment. Berger, 216 Ill. App. 3d at 944. The issue in Berger was the timeliness of the notice of appeal. Berger, 216 Ill. App. 3d at 943-44. The appellant filed his first notice of appeal prematurely, before the trial cоurt had resolved pending petitions for fees pursuant to
¶ 9 The Watkins rule is clear—a reversal without remand does not revest the trial court with jurisdiction. There was no case pending in the trial court following our reversal without remand. Accordingly, we hold that the trial court here correctly ruled that it lacked jurisdiction over defendant‘s turnover motion. Because the trial court was without jurisdiction to act, we do not reach the parties’ myriad contentions regarding the merits.
¶ 11 Affirmed.