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05/06/97 MARIO ALCANTAR v. PEOPLES GAS LIGHT AND

May 6, 1997

MARIO ALCANTAR, A MINOR, BY HIS MOTHER, KATHY ALCANTAR; LANCE JONES, A MINOR, AND MICHAEL JONES, A MINOR, BY THEIR MOTHER, MIRANDA JONES; AND JOHN JONES, A MINOR, BY HIS MOTHER, ALMA JONES, PLAINTIFFS,
v.
PEOPLES GAS LIGHT AND COKE COMPANY, DEFENDANT-APPELLEE AND CROSS-APPELLANT (MAMIE CARPENTER AND OTIS CARPENTER, DEFENDANTS, BENJAMIN AND SHAPIRO, RESPONDENT-APPELLANT AND CROSS-APPELLEE).



Appeal from the Circuit Court of Cook County. Honorable Ian H. Levin, Judge Presiding.

Released for Publication June 25, 1997. As Corrected October 21, 1997.

The Honorable Justice McNULTY delivered the opinion of the court. DiVITO, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Mcnulty

The Honorable Justice McNULTY delivered the opinion of the court:

Respondent, the law firm of Benjamin & Shapiro, appeals from the trial court order denying its motion for substitution of judge and from the order imposing sanctions against Benjamin & Shapiro in the amount of $13,028.71, for filing a frivolous complaint against defendant Peoples Gas. Peoples Gas cross-appeals from the trial court's sanction order, claiming that the court should have awarded attorney fees and costs in the entire amount requested by Peoples Gas, $21,690.66. Peoples Gas also seeks attorney fees and costs on the basis that this appeal is frivolous. We affirm the trial court order denying Benjamin & Shapiro's motion for substitution of judge, and we also affirm the trial court order awarding $13,028.71 in sanctions to Peoples Gas. We deny Peoples Gas' motion for sanctions on appeal.

Plaintiffs, Mario Alcantar, Lance Jones, Michael Jones and John Jones, first filed suit against defendants Mamie and Otis Carpenter on August 22, 1990, alleging that they suffered personal injuries in a gas explosion at the Carpenters' home on February 27, 1990. In response to a subpoena issued to Peoples Gas on August 24, 1990, Peoples Gas produced records showing that the Carpenters called Peoples Gas on January 18, 1990, requesting a shut off of gas services at the premises. The shut off was scheduled for January 23, 1990. Peoples Gas went to the premises on that date but could not gain access to the gas meter, because the customer was not present. The customer subsequently rescheduled the shut off to April 11, 1990, but Peoples Gas was unable to complete the shut off on that date because the B-Box (underground valve) could not be located. The distribution department of Peoples Gas was sent to the premises on April 25, 1990, to locate the B-Box, and the shut off was completed on that date. There was no record of a gas explosion on the premises.

The depositions of all four plaintiffs were taken on October 12, 1992. Plaintiffs testified that they entered the Carpenters' vacant home and set a fire to help them see where they were going. Plaintiff Michael Jones filled a plastic bowl with papers, ignited a piece of paper using the furnace and placed the burning piece of paper in the bowl. When Jones got to the second floor of the house, he dropped the bowl, causing the fire to spread. According to a fire department report, when questioned immediately after the fire, Jones claimed that he had used matches to light the fire.

Mamie Carpenter testified at her deposition taken on May 13, 1993, that she telephoned Peoples Gas in January of 1990 to cancel gas service at the premises but was advised to keep the gas service throughout the winter so that pipes in the premises would not freeze.

On September 27, 1993, plaintiffs amended their complaint against the Carpenters, naming Peoples Gas as an additional defendant. Plaintiffs alleged that Peoples Gas was negligent in failing to terminate gas service to the vacant building although it had been requested to do so, failing to notify the Carpenters' that the gas had not been shut off and failing to post warnings that the building was dangerous.

The Carpenters and Peoples Gas each moved for summary judgment. Peoples Gas alleged in its motion for summary judgment filed on September 19, 1994, that it owed no duty to plaintiffs since plaintiffs had set the fire themselves and that there was no defect in the gas service. On September 21, 1994, Peoples Gas filed a motion for costs and attorney fees against plaintiffs and the law firm of Benjamin & Shapiro, alleging that plaintiffs' complaint was filed in bad faith because, at the time of the filing, they knew that the allegations in their complaint were untrue. Summary judgment was entered in favor of the Carpenters and Peoples Gas.

After entering summary judgment in Peoples Gas' favor, the court noted that it was "strongly inclined" to grant Peoples Gas' motion for costs and attorney fees based on plaintiffs' bad-faith pleading, but it gave the parties additional time to file supplemental briefs on the issue of sanctions under Supreme Court Rule 137. 134 Ill. 2d R. 137. The trial court continued the matter to March 15, 1995, and the matter was later rescheduled for May 5, 1995, for a hearing as to whether to allow sanctions, and if so, the scope of such sanctions.

On March 31, 1995, Benjamin & Shapiro filed a motion for substitution of judge and a motion to clarify the nature of the hearing set for May 5, 1995. On September 13, 1995, the trial court entered an order denying these motions and another order awarding Peoples Gas attorney fees and costs in the amount of $13,028.70. The court specifically found the entire amount requested by Peoples Gas, $21,690.66, to be legitimate but exercised its discretion to reduce the award.

Benjamin & Shapiro claims on appeal that the trial court erred in denying its motion for substitution of judge. The trial court denied Benjamin & Shapiro's motion on the basis that the statute regarding substitution of judge as of right and for cause applies only to civil actions, and this was not a new civil action. The trial court also ruled that the motion for substitution was untimely since the trial court had already made a substantive ruling on the case.

Benjamin & Shapiro first claims that it was entitled to a substitution of judge as a matter of right. The substitution of judge as a matter of right is absolute where the motion requesting the substitution is filed before the judge presiding in the case has made a ...


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