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06/02/89 Margaret Woods Et Al., v. Rita L. Durkin

June 2, 1989

MARGARET WOODS ET AL., PLAINTIFFS-RESPONDENTS

v.

RITA L. DURKIN, EX'R OF THE WILL OF THOMAS J. DURKIN, DECEASED, DEFENDANT-PETITIONER



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

539 N.E.2d 920, 183 Ill. App. 3d 870, 132 Ill. Dec. 357 1989.IL.837

Appeal from the Circuit Court of Rock Island County; the Hon. Wilbur S. Johnson, Judge, presiding.

APPELLATE Judges:

JUSTICE STOUDER delivered the opinion of the court. BARRY and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

The appeal is from the trial court's order dated November 24, 1987, wherein the court denied defendant's motion for reconsideration of an order vacating prior orders but allowed defendant's motion for clarification and certification pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). The trial court found that its order involved a question of law as to which there was substantial ground for difference of opinion and that an immediate appeal from the order would materially advance the ultimate termination of the litigation. As observed by the parties, the certified question for review is:

"Whether a Judge, after disclosing that his daughter-in-law is employed as an associate by the firm representing the defendant, has the discretion to proceed, in the absence of immediate availability of a litigant, upon assurance by that party's attorney that he has no objection to proceeding even though a written waiver of disqualification under Supreme Court Rule 63 is not immediately filed by the party and his or her attorney."

This medical negligence case was filed on June 7, 1982. On January 14, 1987, defendant filed a motion to dismiss pursuant to Supreme Court Rule 219 (107 Ill. 2d R. 219) and section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619), requesting that the cause be dismissed with prejudice on the basis of plaintiffs' failure to comply with prior court orders relating to discovery matters. The motion was set for hearing on March 6, 1987, and was assigned to Honorable Wilbur S. Johnson.

At the hearing, attorney Glenn Ruud appeared as local counsel and attorney Paul R. O'Malley appeared by telephone on behalf of plaintiffs. Attorney Robert J. Noe of the law firm of Bozeman, Neighbour, Patton & Noe appeared on behalf of defendant. Before hearing any arguments, Judge Johnson disclosed on the record that his daughter-in-law was an associate in the law firm that was representing defendant and that "under the Supreme Court Rules, the Court is required to have executed a waiver permitting this court to hear any matters involving that firm." The Judge then stated:

"It is my understanding that the waiver is technically supposed to be signed by all attorneys and all parties and presented in open court. I will further advise you that Mr. O'Malley in a telephone conversation with me this morning did waive my prohibition of hearing the cause and said I was free to hear the matter. Mr. Noe.

MR. NOE: We would certainly waive it.

THE COURT: Mr. Ruud.

MR. RUUD: Mr. O'Malley confirmed the same indication the court made regarding his willingness to have ...


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