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11/22/94 SARAH BUSH LINCOLN HEALTH CENTER v.

November 22, 1994

SARAH BUSH LINCOLN HEALTH CENTER, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, PLAINTIFF-APPELLEE,
v.
RICHARD B. BERLIN, JR., M.D., AN INDIVIDUAL, DEFENDANT-APPELLANT.



Justice Green delivered the opinion of the court: Lund and Steigmann, JJ., concur.

The opinion of the court was delivered by: Green

MODIFIED UPON DENIAL OF REHEARING

JUSTICE GREEN delivered the opinion of the court:

This appeal presents complicated questions concerning (1) the right of a party in a civil case to obtain a substitution of Judge pursuant to section 2-1001 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1001 (West 1992)); and (2) the ability of a party to raise the issue of an erroneous denial of that right in an interlocutory appeal under Supreme Court Rule 307(a)(1) (Official Reports Advance Sheet No. 26 (Dec. 22, 1993), R. 307(a)(1), eff. Feb. 1, 1994) from the grant of a preliminary injunction. While in the context of this case both questions are close, we answer those questions in inverse order by holding that (1) such an issue may be raised in a Rule 307(a)(1) appeal; and (2) the circuit court erred here in denying the right to a substitution of Judge and, thus, erred in subsequently granting a preliminary injunction without making a substitution of Judge.

On February 8, 1994, plaintiff Sarah Bush Lincoln Health Center, a not-for-profit corporation, filed a verified complaint in the circuit court of Coles County against defendant Richard B. Berlin, Jr., M.D. The complaint sought injunctive relief enforcing a restrictive covenant in a contract by which plaintiff employed defendant. This appeal is from a second preliminary injunction granted by the circuit court on April 22, 1994, prohibiting defendant from being employed, pendente lite, by any health care provider in competition with plaintiff within a 50-mile radius of plaintiff's place of operation.

Defendant has appealed asserting (1) the Judge who heard the motion for the preliminary injunction on appeal erred by hearing the case after previously denying a timely motion by defendant for substitution of Judge as a matter of right; and (2) the court abused its discretion in granting the preliminary injunction on appeal. Because we agree that the Judge erred in granting the second preliminary injunction after he should have allowed plaintiff's motion for substitution of Judge and that issue can be raised here, we need not consider other contentions of defendant. We reverse the order for the second preliminary injunction and remand for further proceedings.

We consider first the question of whether the ruling on the motion for substitution of Judge, which was denied before the court issued the second preliminary injunction, can be reached in this appeal. The only decisions called to our attention which pass on this issue are decisions of the Appellate Court for the First District which hold that this issue is not reached in an interlocutory appeal of this nature. The cases are Murges v. Bowman (1993), 254 Ill. App. 3d 1071, 627 N.E.2d 330, 194 Ill. Dec. 214, and City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 380 N.E.2d 1106, 20 Ill. Dec. 897. See also Mexicali Club, Inc. v. Illinois Liquor Control Comm'n (1976), 37 Ill. App. 3d 797, 347 N.E.2d 190.

Both Murges (254 Ill. App. 3d at 1084, 627 N.E.2d at 339) and Airline Canteen Service (64 Ill. App. 3d at 428, 380 N.E.2d at 1115) explain that an order denying substitution of Judge is not appealable as a matter of right. Plaintiff argues that accordingly the propriety of the substitution order cannot be considered here. However, no attempt is made to appeal here from that order denying substitution. Rather, defendant maintains that the order for the second preliminary injunction was in error because the Judge who heard the request for that relief should not have heard the motion. Murges and Airline Canteen Service recognize that the issue is not whether the substitution order was appealable but whether it can be raised in the appeal from the interlocutory injunction.

The opinion in Airline Canteen Service (64 Ill. App. 3d at 428, 380 N.E.2d at 1115) states that the ruling on a prior motion refusing a change of venue from the Judge who ruled on the request for interlocutory relief cannot be considered on a Rule 307 appeal from that ruling because such an appeal "does not open the door to a general review of all orders entered by the trial court up to that date." The opinion in Murges (254 Ill. App. 3d at 1084, 627 N.E.2d at 339) also stated that court did not have jurisdiction to consider error in denial of a motion for substitution because that "ruling [was] not incorporated into the [order] from which defendants appeal."

The difficulty with the holdings of Murges and Airline Canteen Service is that they permit a Judge who should not be hearing a motion for interlocutory injunctive relief to hear that matter without the objecting party having any recourse. The propriety of an order granting or denying interlocutory injunctive relief can only be determined in a Rule 307(a)(1) appeal. ( Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 1151, 405 N.E.2d 1316, 1322, 40 Ill. Dec. 224; Debowski v. Shred Pax Corp. (1977), 45 Ill. App. 3d 891, 896-97, 359 N.E.2d 204, 209, 3 Ill. Dec. 794.) Rather than following the holdings of Murges and Airline Canteen Service, we consider the proper scope of the review under Rule 307 is to review any prior error that bears directly upon the question of whether the order on appeal was proper.

The Murges and Airline Canteen Service opinions are certainly correct in pointing out that a Rule 307 appeal does not bring up for consideration every prior order of the trial court. The Airline Canteen Service opinion also explains that the prime function of a Rule 307 appeal concerning injunctive relief is whether some basis existed for the trial court to exercise its discretion ( Airline Canteen Service, 64 Ill. App. 3d at 429, 380 N.E.2d at 1115), but we do not agree that is the only issue reached. For instance, in Kurle v. Evangelical Hospital Association (1980), 89 Ill. App. 3d 45, 48, 411 N.E.2d 326, 328, 44 Ill. Dec. 357, the Appellate Court for the Second District ruled that the conduct of the circuit court in holding an evidentiary hearing on a request for a preliminary injunction when no answer had been filed was error which would have been considered if it had not been waived. Is not the question of whether the Judge hearing the request for interlocutory injunctive relief should have been sitting in that matter of equal significance?

The opinion in Murges (254 Ill. App. 3d at 1081, 627 N.E.2d at 337) recognized that its review function in regard to facts found by the trial court did not include "findings of fact which do not affect the specific remedies for which the appeal is allowed." While the Judge from whom substitution was sought here is an able and respected jurist, the rationale of the procedure for substitution of Judge is that the party seeking substitution perceives that the determination of the Judge who hears the matter is likely to "affect" the outcome of the matter before the Judge. The importance of a proper ruling on a motion for substitution of Judge is so great that some courts have held that the wrongful refusal of a proper request for substitution of Judge renders all subsequent orders by that Judge entered in the case void. Stoller v. Paul Revere Life Insurance Co. (1987), 163 Ill. App. 3d 438, 442, 517 N.E.2d 5, 7, 115 Ill. Dec. 40; Delta Oil Co. v. Arnold (1978), 66 Ill. App. 3d 375, 378, 384 N.E.2d 25, 28, 23 Ill. Dec. 389.

Having determined that we may consider whether the circuit court erred in denying the motion for substitution of Judges, we now turn to that question. Section 2-1001(a)(2) of the Code states:

"Substitution as of right. When a party timely exercises his or her right to a substitution without cause as ...


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