                                          No. 2--05--0161                            filed:
9/14/06
_________________________________________________________________________
_____

                                           IN THE

                              APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
_________________________________________________________________________
_____

JODY ANN LOWENTHAL,                            )   Appeal from the Circuit Court
                                               )   of Du Page County.
       Plaintiff-Appellant,                    )
                                               )
v.                                             )   No. 02--L--437
                                               )
JAMES T. McDONALD,                    Honorable)
                                               )
                                      John T. Elsner,
     Defendant-Appellee.              )     Judge, Presiding.
_________________________________________________________________________
____

       JUSTICE BOWMAN delivered the opinion of the court:

       At issue in this case is whether the parties' agreement to extend the time for filing a

posttrial motion validates an untimely motion requesting such an extension. We conclude

that this type of agreement, on its own, does not allow the trial court to retain jurisdiction

over the case. Correspondingly, plaintiff failed to timely file a notice of appeal, and we

therefore dismiss this appeal for lack of jurisdiction.

                                     I. BACKGROUND

       On April 23, 2002, plaintiff, Jody Ann Lowenthal, brought a negligence action against

defendant, James T. McDonald, to recover for personal injuries she allegedly sustained in a

car accident. Plaintiff filed an amended complaint on August 1, 2002, and the case was
tried before a jury beginning on August 2, 2004. On August 5, 2004, the jury returned a

verdict in defendant's favor, and a judgment was entered on the verdict that day.

       On August 31, 2004, plaintiff submitted a motion to extend the time to file a posttrial

motion. The trial court granted plaintiff's motion on September 3, 2004, and she was given

until October 4, 2004, to file the posttrial motion. On October 1, 2004, the parties' counsel

had a telephone conversation in which defendant's attorney said that he did not object to

plaintiff obtaining additional time to file her posttrial motion. On October 4, 2004, plaintiff

faxed the trial court a second motion to extend the time for filing a posttrial motion. The

following day, the trial court issued an order stating that plaintiff had not "filed a motion for

this Court to act upon," because the motion did not comply with local court rules and had

not been filed with the clerk. The order additionally stated that plaintiff's reason for

requesting an extension, to comply with initial deadlines in federal court cases, was

inadequate.

       In spite of this ruling, on October 13, 2004, the trial court "entered" plaintiff's second

motion to extend the time for filing a posttrial motion. It held a hearing on the motion on

October 28, 2004. At the hearing, defendant argued that the trial court lacked jurisdiction to

extend the filing deadline, because plaintiff failed to obtain an extension before the previous

extension had expired. The trial court disagreed and granted plaintiff's motion; plaintiff was

given leave to file a posttrial motion by November 25, 2004.

       Plaintiff filed her posttrial motion on November 29, 2004. 1 She argued that the trial

court erred by allowing photographs of the vehicles, without expert causation testimony;


       1
           Thanksgiving fell on Thursday, November 25, 2004, and the following day was also a court

holiday. Thus, plaintiff filed her posttrial motion on Monday, November 29, 2004, within the time
No. 2--05--0161


that a juror was improperly dismissed; and that defendant's closing argument was so

inflammatory as to warrant reversal. Defendant's response to plaintiff's motion reasserted

his jurisdictional argument, in addition to asserting that the substance of the motion lacked

merit. The trial court denied plaintiff's posttrial motion on January 20, 2005, and she filed a

notice of appeal on February 16, 2005.

                                         II. ANALYSIS

       Defendant argues that plaintiff's failure to timely obtain an order for a second

extension of time in which to file her posttrial motion deprived the trial court of jurisdiction to

grant the October 28, 2004, extension.          Whether the trial court had subject matter

jurisdiction to grant this extension is a question of law, which we review de novo. See In re

Marriage of Miller, 363 Ill. App. 3d 906, 912 (2006).

       Section 2--1202(c) of the Code of Civil Procedure (Code) (735 ILCS 5/2--1202(c)

(West 2004)) requires that a posttrial motion "be filed within 30 days after the entry of

judgment or the discharge of the jury, if no verdict is reached, or within any further time the

court may allow within the 30 days or any extensions thereof." Thus, for the trial court to

extend the time to file a posttrial motion beyond the initial 30-day period, it must enter such

an order within the 30-day period or within any period of extension already given. In re

Estate of Kunsch, 342 Ill. App. 3d 552, 554 (2003). If the initial 30-day period or any period

of extension expires without the entry of an order setting a new deadline, the trial court

loses jurisdiction over the case. Trentman v. Kappel, 333 Ill. App. 3d 440, 442 (2002); see

also In re Marriage of Orlando, 218 Ill. App. 3d 312, 324 (1991) (in a civil case, the trial


limit of the second extension. See 5 ILCS 70/1.11 (West 2004).



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court generally loses subject matter jurisdiction 30 days after the entry of the final

judgment).

        In Kwak v. St. Anthony De Padua Hospital, 54 Ill. App. 3d 719 (1977), the appellate

court

analyzed the requirements for obtaining an extension of time in which to file a posttrial

motion. In Kwak, the trial court dismissed one of the defendants as a party on January 26,

1976. Subsequently, on January 29, 1976, a directed verdict was entered in favor of the

other defendant. Kwak, 54 Ill. App. 3d at 723. On February 23, 1976, the plaintiff filed a

motion to extend the time for filing posttrial motions as to both orders, but the trial court did

not grant the extension until March 10, 1976, after the 30-day periods had expired on

February 25, 1976, and February 28, 1976. Kwak, 54 Ill. App. 3d at 723-24. The plaintiff

then filed her posttrial motions on March 18, 1976, and the trial court denied the motions on

June 7, 1976. The plaintiff appealed on July 7, 1976. Kwak, 54 Ill. App. 3d at 723.

        Despite the fact that the plaintiff had filed her motions for extensions within the

applicable deadlines, the appellate court held that the trial court was without jurisdiction to

hear her motions on March 10, because the plaintiff had neither filed her posttrial motions

nor obtained extensions of time in which to file the motions before their deadlines. Kwak,

54 Ill. App. 3d at 724; see also In re Estate of Kunsch, 342 Ill. App. 3d at 554-55 ("when a

trial court fails to allow an extension of time to file a posttrial motion within the initial 30-day

period, there is no jurisdiction to later grant a plaintiff additional time or to consider a

posttrial motion attacking the final judgment"). In response to the plaintiff's argument that

the trial judge was out of town when her motion for an extension was filed, the appellate




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court pointed out that the plaintiff could have petitioned the appellate court for leave to file a

late notice of appeal under Supreme Court Rule 303(e). Kwak, 54 Ill. App. 3d at 724-25.

       Similarly, in Trentman, the appellate court held that although the plaintiff had

properly obtained nine extensions for filing his posttrial motion and had timely requested a

tenth extension, the plaintiff's failure to either obtain the extension or file the posttrial motion

by the deadline deprived the trial court of jurisdiction to address such motions. Trentman,

333 Ill. App. 3d at 444.

       Here, the judgment was entered on August 5, 2004, and plaintiff timely obtained an

extension within the initial 30-day period; the trial court granted plaintiff's motion for an

extension on September 3, 2004. Plaintiff was given until October 4, 2004, to file her

posttrial motion. Plaintiff attempted to obtain a second extension by faxing the court a

motion for an extension on October 4, 2004, but the trial court determined that the motion

was not properly filed with the clerk, violated local court rules, and did not profess an

adequate reason for the extension request. Regardless of whether the October 4 motion

for an extension was properly filed, it is clear that on October 4, plaintiff had failed to either

file her posttrial motion or obtain an extension to file the posttrial motion. Accordingly, the

trial court lacked jurisdiction to later grant plaintiff additional time in which to file the motion.

See Trentman, 333 Ill. App. 3d at 444.

       Plaintiff argues that because defendant's attorney stated in the October 1, 2004,

telephone conversation that he did not object to plaintiff obtaining another extension to file

her posttrial motion, the trial court had the authority to equitably extend the deadline for

filing the posttrial motion. Plaintiff cites only one case, Crescent Electric Supply Co. v.

Diamac Electric, Inc., No. 1--98--3043 (2000) (unpublished order under Supreme Court


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No. 2--05--0161


Rule 23). Plaintiff's reliance on this case is in error, as Rule 23 orders are not precedential

and may not be cited by parties except to support contentions of double jeopardy, res

judicata, collateral estoppel, or law of the case. 166 Ill. 2d R. 23(e); People v. Wilder, 356

Ill. App. 3d 712, 718-19 (2005).

       Still, we recognize that there is some support for the proposition that the time for

filing a posttrial motion can be extended by agreement of the parties. The primary case

espousing this principle is Krotke v. Chicago, Rock Island & Pacific R.R. Co., 26 Ill. App. 3d

493 (1974). There, judgment was entered for the plaintiff on November 25, 1969. In a

telephone conversation between the parties' counsel on December 22, 1969, the plaintiff

agreed that it would not object to an extension of time within which the defendant could file

its posttrial motion. The following day, the plaintiff received, signed, and mailed to the

defendant a written stipulation that the defendant would have until January 26, 1970, to file

its posttrial motion. The stipulation was not filed with the trial court until December 30,

1969, 31 days after the judgment had been entered. The trial court entered an order, over

the plaintiff's objection, extending to January 26 the time for filing the posttrial motion. The

defendant filed its posttrial motion on January 20, 1970. Krotke, 26 Ill. App. 3d at 495. The

plaintiff later moved to strike the defendant's posttrial motion, on the basis that the trial

court lacked jurisdiction to extend the filing time. Krotke, 26 Ill. App. 3d at 495-96. The trial

court denied the plaintiff's motion to strike and entered judgment n.o.v. for the defendant.

       The appellate court affirmed the trial court's decision. Krotke, 26 Ill. App. 3d at 500.

In doing so, it recognized that a court generally loses power to review its judgment through

the passage of time. However, it stated that even after 30 days, a court still has the power

to alter, modify, or set aside its judgment, with the parties' consent. The appellate court


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reasoned that, based upon the consent exception, the parties' stipulation validly extended

the time for filing the defendant's posttrial motion. Krotke, 26 Ill. App. 3d at 496. The court

stated:

       "The statute imposing a time limitation within which a party must file his post-trial

       motion is not inconsistent with the inherent power of courts of general jurisdiction to

       enter orders modifying or vacating their judgments pursuant to the express consent

       and agreement of all the interested parties. [Citation.] It was within the discretion of

       the trial court, at the time the stipulation was presented, and the order of extension

       entered, to determine that the stipulation was valid and whether the time agreed

       upon within which to file was reasonable. The time stated in the order clearly was

       reasonable and plaintiff does not contest the validity of the stipulation. Plaintiff has

       waived his right to rely on the absolute finality of the judgment as provided in section

       68.1(3), and thus is not prejudiced by our holding. He cannot complain of that which

       he agreed to do." Krotke, 26 Ill. App. 3d at 496.

       On the other hand, our supreme court has stated that lack of subject matter

jurisdiction is not subject to waiver and cannot be cured through the parties' consent.

People v. Flowers, 208 Ill. 2d 291, 302 (2003), citing Toman v. Park Castles Apartment

Building Corp., 375 Ill. 293, 302 (1940). This principle seems to be at odds with the holding

in Krotke and with the revestment doctrine, which allows the parties to revest a court with both

personal and subject matter jurisdiction even after the 30-day period following the final judgment,

when posttrial motions must ordinarily be filed. People v. Kaeding, 98 Ill. 2d 237, 240 (1983). The

revestment doctrine applies when (1) the parties actively participate in proceedings, without

objection, and (2) the proceedings are inconsistent with the merits of the prior judgment. Kaeding,


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98 Ill. 2d at 241.   This court recently addressed the apparent conflict between the

revestment doctrine and the proposition that the lack of subject matter jurisdiction cannot

be cured by consent of the parties. In People v. Montiel, 365 Ill. App. 3d 601, 605 (2006),

this court held that "it is not consent but active participation that revests jurisdiction."

(Emphasis in original.)

       We believe that this reasoning is also applicable to the instant case and, therefore,

disagree with Krotke. Plaintiff had until October 4, 2004, to either file a posttrial motion or

obtain a second extension of time in which to file the posttrial motion. Because plaintiff

failed to do either, the trial court lost jurisdiction to grant plaintiff's motion for a second

extension of time. Defendant's October 1, 2004, agreement that he would not object to

plaintiff requesting a second extension of time to file her posttrial motion did not somehow

revest the trial court with jurisdiction over the matter or otherwise trump the requirements of

section 2--1202 of the Code, because defendant did not actively participate in the

subsequent proceedings without objection. Instead, at the first opportunity, he objected to

the trial court's jurisdiction over the case, because plaintiff had failed to timely secure an

extension.

                                     III. CONCLUSION

       Supreme Court Rule 303(a)(1) (155 Ill. 2d R. 303(a)(1)) requires that a notice of

appeal be filed within 30 days of the entry of the final judgment, or, if a timely posttrial

motion directed against the judgment has been filed, within 30 days after the entry of the

order disposing of that motion. The failure to timely file a notice of appeal deprives this

court of jurisdiction. See 155 Ill. 2d R. 301; In re Estate of Kunsch, 342 Ill. App. 3d at 553.

After plaintiff obtained her initial extension of time, she had until October 4, 2004, to either


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file a posttrial motion or obtain another extension of time in which to file a posttrial motion.

As plaintiff failed to satisfy either of these alternatives, her February 16, 2005, notice of

appeal is untimely, and we lack jurisdiction to consider her appeal.

       Appeal dismissed.

       O'MALLEY and GILLERAN JOHNSON, JJ., concur.




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