Illinois Association of Defense Trial Counsel
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IDC Quarterly | Volume 18, Number 4 (18.4.36)
Appellate Practice Corner
By: Brad A. Elward
Heyl, Royster, Voelker & Allen
Understanding Supreme Court Rule 369—
and What to Do When Your Case Has Been Remanded
One area of appellate practice that is rarely discussed concerns the issuance of the mandate from the
reviewing court. Often people ask what is the true meaning of a mandate and whether any action must be taken
once a reviewing court issues its decision and remands a case for further proceedings. Simply put, the mandate
is the judgment of the appellate court transmitted to the lower court.
The mandate is the judgment of the reviewing court transmitted to the lower court. It is the timely
filing of the mandate of the reviewing court which reinstates the case in the trial court and reinvests
that court with jurisdiction and the limitation period begins to run from the time the judgment of the
reviewing court has become final, either through the denial of the petition for rehearing or the
expiration of the time within which a petition for rehearing might have been filed.
Busser v. Noble, 32 Ill. App. 2d 181, 186, 177 N.E.2d 251 (2nd Dist. 1961).
Indeed, the mandate controls how the case is to proceed upon remand. Fiore v. City of Highland Park, 93
Ill. App. 2d 24, 35, 235 N.E.2d 23 (2nd Dist. 1968). The lower court must follow the mandate of the reviewing
court and it is the mandate itself, and not the opinion, that governs how the case is to proceed. Perrin v.
Pioneer Nat. Title Ins. Co., 108 Ill. App. 3d 181, 182-83, 438 N.E.2d 1359 (1st Dist. 1982).
If an appeal results in a remand, Rule 369(c) imposes a duty on the prevailing party in the appeal to
reinstate the case.
When the reviewing court remands the case for a new trial or hearing and the mandate is filed in the
circuit court, the case shall be reinstated therein upon 10 days’ notice to the adverse party.
Supreme Court Rule 369(c).
Although Rule 369(c) contains no time limitation on the right to reinstate, case law has required a party to
move for reinstatement within a reasonable time. National Underground Constr. Co. v. E.A. Cox Co., 273 Ill.
App. 3d 830, 833, 652 N.E.2d 1108 (1st Dist. 1995). When determining whether a party has reinstated a case
within a reasonable period of time, a court is to consider the totality of the circumstances, “particularly any
reasons offered for an undue delay.” People v. NL Industries, Inc., 297 Ill. App. 3d 297, 300-01, 696 N.E.2d
729 (1st Dist. 1998). The reasonableness requirement is considered in terms of whether a movant has exercised
due diligence in filing the petition to reinstate. National Underground Constr., 273 Ill. App. 3d at 837.
For guidance on due diligence, the court will consider cases brought under section 2-1401 of the Illinois
Code of Civil Procedure (735 ILCS 5/2-1401), and the courts require a movant to have a “reasonable excuse”
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for failing to timely file a petition to reinstate. Smith v. Airoom, Inc., 114 Ill. 2d 209, 222, 499 N.E.2d 1381
(1986). In Smith, the Supreme Court commented on section 2-1401 as follows:
Since section 2-1401 does not afford a litigant a remedy whereby he may be relieved of the
consequences of his own mistake or negligence [citations removed], a party relying on section 2-1401
is not entitled to relief “unless he shows that through no fault or negligence of his own, the error of
fact or the existence of a valid defense was not made to appear to the trial court.” [citation removed]
Specifically, the petitioner must show that his failure to defend against the lawsuit was the result of an
excusable mistake and that under the circumstances he acted reasonably, and not negligently, when he
failed to initially resist the judgment.
Id. 114 Ill. 2d at 222. Moreover, the court observed, “[r]elief under section [2-1401] is available only to
those who diligently pursue their legal defenses and remedies in court, not to those who disregard these
procedures on the gamble that better results can be obtained through other procedures or at a cheaper cost.” Id.
114 Ill. at 224.
Three Illinois cases highlight the court’s interpretation of the reasonableness requirement concerning Rule
369(c). In National Underground Cosntr., a declaratory judgment action, an order granting summary judgment
for the defendant general contractor was reversed on appeal and the case was remanded to the circuit court.
The matter sat for nearly 23 months after issuance of mandate until the plaintiff subcontractor filed a motion to
reinstate the case following remand; the motion was denied by the circuit court.
The appellate court affirmed the denial of reinstatement, finding that the circuit court had not abused its
discretion. The appellate court noted that the subcontractor had offered no explanation for its concededly
extraordinary delay. National Underground Constr., 273 Ill. App. 3d at 837. The court further pointed out that
the prevailing party on an appeal has an affirmative burden to pursue its rights after the mandate issues. Id. at
836, citing Miller v. Bloomberg, 126 Ill. App. 3d 332, 338, 466 N.E.2d 1342 (2nd Dist. 1984). “[W]e perceive
no reason why under Rule 369(c) . . . a party should have unlimited time to assert its rights simply because
Rule 369(c) does not contain an express time limitation.” National Underground Contr., 273 Ill. App. 3d at
835. The court continued, “[p]ractice rules were initially adopted to facilitate the orderly and expeditious
disposition of litigation.” Id. at 836. “To interpret Rule 369(c) as providing parties an ever open window to
reinstate a case would thwart, indeed, flaunt, this purpose.” Id.
According to the appellate court, not only was the circuit court justified in refusing to reinstate the case,
the court would similarly have been justified in dismissing the case for want of prosecution or on a finding of
laches. The court explained that jurisdiction re-vests in the circuit court once the appellate mandate issues.
“Thus, the cause is pending in the trial court as soon as the mandate issues, regardless of whether the parties
attempt to act on the mandate.” Id. at 835.
In NL Industries, the State of Illinois had filed an action seeking violations of the Illinois Environmental
Protection Act, which was dismissed for lack of jurisdiction. Although the appellate court affirmed, the
supreme court reversed the ruling and remanded the case for further proceedings. The State, however, waited
nine months before moving to reinstate the case following issuance of the mandate. The circuit court denied
the State’s motion to reinstate, finding no reasonable excuse for its failure to proceed.
Following National Underground Constr., the appellate court affirmed. The court found the State’s excuse
– that it had other cases that had to be given priority – was unreasonable. The court further rejected the State’s
contention that a one-year delay was approved of in the prior decision in the National Underground Constr.
case. NL Industries, 297 Ill. App. 3d at 302.
The NL Industries court observed that National
Underground Constr. had merely referenced an older version of the Civil Practice Act, under which a party
had one year from the date of a decision of the appellate court to file the mandate in the circuit court. Rule
369(c) had superceded that section, Ill. Rev. Stat. Ch. 110, para. 88 (1965).
Most recently, the appellate court affirmed the allowance of a motion to reinstate, which was brought 290
days after a bankruptcy stay was lifted. The stay had been entered during the pendency of the appeal, which
involved the sufficiency of an arbitration award in favor of the plaintiff. In Ryan v. Kontrick, 335 Ill. App. 3d
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225, 779 N.E.2d 287 (1st Dist. 2002), the plaintiff moved to reinstate some 290 days following the lifting of the
1997 bankruptcy stay, and over a year-and-a-half after the issuance of the mandate. The court justified the
delay in filing by referencing the ongoing bankruptcy as well as the continuing related litigation between the
parties. “It is clear that all of this litigation is interconnected in that the ultimate goal on Ryan’s part is
collection of the arbitration award.” Id. 779 N.E.2d at 293. The court also found it significant that the remand
issues involved a ministerial function, namely, entry of an order requiring the defendant to pay interest at the
required statutory rate.
The lesson from these cases is patently clear – if you are the prevailing party on appeal, you must
immediately move to reinstate your case and not open your client to potential dismissal for failing to comply
with Rule 369(c). While there are some valid reasons for a small delay, there is simply no reasonable
explanation for allowing your case to sit following an appellate victory.
About the Author
Brad A. Elward is a partner in the Peoria office of Heyl, Royster, Voelker & Allen. He practices in the area of appellate law, with a subconcentration in workers’ compensation appeals and asbestos-related appeals. He received his undergraduate degree from the University of
Illinois, Champaign-Urbana, in 1986 and his law degree from Southern Illinois University School of Law in 1989. Mr. Elward is a member of the
Illinois Appellate Lawyers Association, the Illinois State, Peoria County, and American Bar Associations, and a member of the ISBA Workers’
Compensation Section Counsel.
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