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Nasrallah v. Davilla

December 14, 2001

SUSAN NASRALLAH, PLAINTIFF-APPELLEE
v.
SALVADOR DAVILLA, DEFENDANT-APPELLANT



The opinion of the court was delivered by: Presiding Justice Gallagher

UNPUBLISHED

Appeal from the Circuit Court of Cook County Honorable BARBARA A. McDONALD Judge Presiding.

Following a jury trial, plaintiff, Susan Nasrallah, was awarded $11,990.20 in damages for injuries sustained in an automobile accident involving plaintiff and defendant, Salvador Davilla. Defendant now appeals from the judgment entered on the jury verdict and the order denying its posttrial motion. We reverse and remand.

Defendant raises two issues on appeal. The first issue is whether the trial court improperly denied defendant's motion for substitution of judge as a matter of right. The second issue is whether the trial judge improperly gave IPI Civil 3d No. 5.01 (Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed.1995) (hereinafter IPI Civil 3d)) to the jury.

I. Substitution of Judge

The first issue raised by defendant on appeal is whether the trial court improperly denied defendant's motion for a substitution of judge. Section 2-1001 of the Code of Civil Procedure provides, in pertinent part:

"(a) A substitution of judge in any civil action may be had in the following situations:

(2) Substitution as of right. When a party timely exercises his or her right to a substitution without cause as provided in this paragraph (2).

(i) Each party shall be entitled to one substitution of judge without cause as a matter of right.

(ii) An application for substitution of judge as of right shall be made by motion and shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, or if it is presented by consent of the parties." 735 ILCS 5/2-1001(a)(2) (West 1998).

Where these minimal requirements are met, a party's right to substitution of judge without cause is absolute. In re Dominique F., 145 Ill. 2d 311, 318-19, 583 N.E.2d 555 (1991).

In its written order denying defendant's posttrial motion, the trial court stated that it denied the motion for substitution of judge for two reasons: (1) the court had made and indicated substantial rulings in the case; and (2) the court believed the motive for the motion was delay.

The substantial rulings identified by the court at the time it denied the motion for substitution of judge were the setting of the treating physician's testifying fee and the court's statement that since the appellate court rendered its decision in Perkins v. Harris, 308 Ill. App. 3d 1076 (1999), the court generally awarded such fees incurred in connection with evidence depositions as taxable costs.

A trial court has no discretion to deny a proper motion for substitution of judge as of right. In re Dominique F., 145 Ill. 2d at 319, 583 N.E.2d at 558. The issue of whether there was a ruling on a substantial issue in the case is a question of law. Rodisch v. Commacho-Esparza, 309 Ill. App. 3d 346, 350, 722 N.E.2d 326, 329 (1999). Thus, our review is de novo. Lucas v. Lakin, 175 Ill. 2d 166, 171, 676 N.E.2d 637 (1997).

A ruling is considered substantial when it is directly related to the merits of the case. Bonnie Owen Realty, Inc. v. Cincinnati Insurance Co., 283 Ill. App. 3d 812, 821, 670 N.E.2d 1182 (1996). The trial court indicated in its written order that because the treating physician's testifying fee was so much compared to the damages sought in the case, it must be substantial. This conclusion is erroneous. The trial court's ruling on the evidence deposition fee did not relate to the merits of the case. A motion for substitution of judge must be granted where the trial court has not "ruled on any substantial issue in the case." 735 ILCS 5/2-1001(a)(2) (West 1998). There is an exception where the movant "had an opportunity to test the waters and form an opinion as to the court's reaction to his claim" (In re Marriage of Petersen, 319 Ill. App. 3d 325, 338, 744 N.E.2d 877, 887 ( 2001)); however, that is not the case here. The ruling ...


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