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Rodisch v. Commacho-Esparza

December 23, 1999

URSULA RODISCH, PLAINTIFF-APPELLANT,
v.
MARIBEL COMMACHO-ESPARZA AND JUAN M. ESPARZA, DEFENDANTS-APPELLEES
(ALBERT RODISCH, PLAINTIFF).



Appeal from the Circuit Court of Du Page County. No. 96--L--577 Honorable, Kenneth Moy, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Plaintiff, Ursula Rodisch, appeals from a judgment entered upon a jury verdict in favor of defendants, Maribel Commacho-Esparza and Juan Esparza. Plaintiff contends, among other things, that the trial court erroneously denied her motion for substitution of judge as of right pursuant to section 2--1001(a)(2) of the Code of Civil Procedure (Code) (735 ILCS 5/2--1001(a)(2) (West 1996)). Because this issue is dispositive and we agree with plaintiff that the trial court committed error, we reverse and remand for a new trial before a different judge.

I. BACKGROUND

In June 1996, plaintiffs, Ursula and Albert Rodisch, brought a two-count complaint against defendants, Maribel Commacho-Esparza and Juan Esparza. Count I, brought by Ursula, sought damages for personal injuries resulting from a rear-end collision involving a car driven by Maribel and owned by Juan. Count II, brought by Albert, sought damages for loss of consortium. Subsequently, the trial court granted Albert's motion to voluntarily dismiss his claim. Albert is therefore not a party to this appeal.

The case was initially assigned to Judge Paul Noland. Judge Noland set the first pretrial conference for February 14, 1997, and later rescheduled it for March 31, 1997. After two subsequent status reviews, Judge Noland again rescheduled the pretrial conference for November 14, 1997. At some point prior to the date scheduled for the pretrial conference, the case was reassigned to Judge Kenneth Moy. None of the parties requested the reassignment. After Judge Moy conducted the pretrial conference in chambers on November 14, 1997, he entered an order scheduling a hearing for December 3, 1997, for "status on settlement and setting of trial date[,] if necessary." No transcripts of the conference were made.

On December 3, 1997, plaintiff filed a "Motion to Change Venue." Though inartfully drawn and mistitled *fn1 , the motion was construed by Judge Moy and the parties as a request for substitution of judge as of right pursuant to section 2--1001(a)(2) of the Code (735 ILCS 5/2--1001(a)(2) (West 1996)). No pretrial ruling on the motion appears in the record on appeal, but the motion was apparently denied because the case proceeded to trial in June 1998.

Following trial, the jury found for defendants and judgment was entered on the verdict. Hearings on plaintiff's posttrial motion were held on September 29 and October 20, 1998. In the motion, plaintiff argued for a new trial based upon, among other things, the erroneous denial of her motion for substitution of judge. During the hearings, Judge Moy explained to plaintiff's counsel:

"[T]he reason that I denied [the motion for substitution of judge] was I held a pretrial. *** And we had a pretrial in my office at which point I made a recommendation and a suggestion. At which time I was informed *** that, no, you wanted -- you had to have the full policy, that you could proceed under the uninsured [sic] portions of your client's policy. At which point the pretrial was terminated and next when I suggested a trial date [sic]. And I think the next time I saw it [sic] was when that counsel presented a motion for substitution at which point I denied it based upon that reason.

***

I know in my interpretation, reading of the cases would indicate that since I had made a recommendation and was under the -- that this was a form of forum shopping for which is [sic] not permitted is not the reason for granting your motion. There's a reason for not granting your motion."

Later Judge Moy clarified his ruling when he told counsel:

"And as to [sic] counsel had indicated that there was a question of substitution of judges [sic] filed back in December, 1997, I previously on the record indicated that it was denied based upon the fact that a pre-trial was conducted, voluntarily by all parties and all counsel prior to the December, 1997[,] motion for substitution, and that the Court had indicated the reasoning behind its feelings, the recommendations as to the amount, at that point, that at pre-trial the party, the plaintiff, indicated they wanted the full twenty thousand dollars, because there was a hundred thousand dollars under-insurance policy.

And the defendant had indicated that there were pre-existing conditions, extenuating circumstances, which they could not offer the full ...


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