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Tracey Powell, Indiv. and As Special Adm'r of the Estate of Adam v. Dean Foods Company et al

January 20, 2012

TRACEY POWELL, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF ADAM MCDONALD, DECEASED, ET AL., APPELLANTS,
v.
DEAN FOODS COMPANY ET AL.,
APPELLEES.



JUSTICE THOMAS delivered the judgment of the court, with opinion.

Justices Freeman, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.

Chief Justice Kilbride took no part in the decision.

OPINION

¶ 1 Plaintiffs, Tracey Powell, individually and as special administrator of the estate of Adam McDonald, deceased, George Kakidas, individually and as special administrator of the estate of Diana Kakidas, deceased, and Alexander Chakonas, individually and as special administrator of the estate of Christina Chakonas, deceased, filed wrongful-death actions arising from a car accident where plaintiffs' vehicle was hit by a tractor-trailer driven by defendant Jamie L. Reeves. Plaintiffs filed suit against Reeves, Dean Foods Company, Alco of Wisconsin, Inc., and Alder Group, as well as other defendants not at issue in this appeal. Following trial, a jury in the circuit court of Cook County returned a verdict in favor of each plaintiff, finding defendants jointly and severally liable.

¶ 2 Defendants appealed, arguing, inter alia, that the trial court erred in denying Alder Group's motion for substitution of judge as of right pursuant to section 2-1001(a)(2) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1001(a)(2) (West 2006)). The Appellate Court, First District, agreed with defendants that the trial court erred in denying Alder Group's motion for substitution of judge as a matter of right. 405 Ill. App. 3d 354. Accordingly, the appellate court reversed the trial court's order denying Alder Group's motion for substitution, and vacated all orders entered in the case subsequent to the denial of the motion for substitution. 405 Ill. App. 3d at 364. The appellate court remanded the cause for a new trial before another trial judge. Id.

¶ 3 Plaintiffs filed petitions for leave to appeal with this court pursuant to Illinois Supreme Court Rule 315 (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)). This court denied plaintiffs' petitions for leave to appeal. Plaintiffs then filed motions for leave to file motions for reconsideration of the orders denying their petitions for leave to appeal. This court allowed the motions for reconsideration. This court then vacated its orders denying plaintiffs' petitions for leave to appeal, and entered orders allowing the petitions for leave to appeal, which were consolidated.

¶ 4 BACKGROUND

¶ 5 The facts relevant to the issues on appeal are as follows. On July

6, 2002, defendant Reeves was driving eastbound on U.S. 30 near Lincoln Street in Wanatah, Indiana. Reeves was employed by defendant Alco of Wisconsin, Inc. The truck tractor that Reeves was driving was owned by defendant Alder Group, Inc., and Reeves was hauling a trailer that was owned by Dean Illinois Dairies, LLC, which was loaded with defendant Dean Foods Company's milk products.

¶ 6 Around 10:25 p.m., Christina Chakonas was driving with Adam McDonald and Diana Kakidas. Christina approached U.S. 30 on Lincoln Street, which was a secondary road with a stop sign for U.S. 30. After stopping, Christina began to turn left attempting to cross Route 30. Reeves struck Christina's vehicle as it crossed the eastbound lanes of U.S. 30. As a result of the accident, Christina, Adam and Diana were killed.

¶ 7 On December 2, 2003, plaintiff Chakonas filed his complaint against Reeves, Alco, Inc., Alco of Wisconsin, Inc. d/b/a Robert Alder & Sons, and Dean Foods Company. In July 2004, Chakonas filed an amended complaint naming Reeves, Alco, Inc., Alco of Wisconsin, Dean Foods Company, and Dean Illinois Dairies, LLC, as defendants.

¶ 8 On December 31, 2003, Powell and Kakidas filed their complaint naming Reeves and Dean Foods Company as defendants. In July 2004, Powell and Kakidas filed an amended complaint naming Dean Illinois Dairies, LLC, Reeves, Alco of Wisconsin, and Alder Group as defendants. In August 2004, Chakonas filed a motion to consolidate his action with that of Powell and Kakidas. That motion was granted and the cases were consolidated.

¶ 9 Plaintiffs alleged that the corporate defendants were vicariously liable for Reeves' negligent driving. Further, plaintiffs alleged that Reeves was speeding, was in excess of his federal hours of service requirements, and did not brake until four seconds after the collision.

¶ 10 Following discovery, the case was set for trial on October 11,

2007. The defendants were all represented by one law firm. At the time of trial, the following defendants had been named in one or both of plaintiffs' complaints: Reeves; Alco, Inc.; Alco of Wisconsin, Inc.; Alder Group, Inc.; Dean Foods Company; and Dean Illinois Dairies, LLC. On October 11, 2007, four defendants moved ex parte for a change of judge as of right pursuant to section 2-1001(a)(2)(i) of the Code. Defendant Dean Illinois Dairies, LLC, took a change of judge as of right from Judge William J. Haddad.*fn1 Defendant Alco of Wisconsin took a change as of right from Judge Susan Zwick. Defendant Dean Foods Company took a change as of right from Judge James M. Varga, and defendant Alco, Inc., took a change as of right from Judge Patricia Banks.

¶ 11 When plaintiffs learned of Alco, Inc.'s motion for substitution as of right from Judge Banks, plaintiffs filed a motion with the assignment judge to send the case back to Judge Banks to reconsider Alco, Inc.'s motion. After the case was sent back to Judge Banks, plaintiffs filed a motion seeking reconsideration of Judge Banks' order granting Alco, Inc.'s motion for substitution of judge. Plaintiffs alleged that Alco of Wisconsin, Inc., and Alco, Inc., were alternative names for the same entity, and that Alco, Inc., was the former name of Alco of Wisconsin, Inc. Although plaintiff Chakonas had named Alco, Inc., as a defendant, plaintiffs argued that defendants' amended appearance purposely excluded an appearance by Alco, Inc., and in response to plaintiff Chakonas' complaint, defendants referenced Alco of Wisconsin when answering Chakonas' allegations against Alco, Inc. Plaintiffs argued that the same party was using two different names to get two substitutions as of right, when they were only entitled to one substitution as of right.

¶ 12 Defendants agreed with plaintiffs that the motion on behalf of Alco, Inc., had been filed inadvertently. Defense counsel stated, "what I would respectfully ask is that your order be rescinded or whatever you have to do; but I would present a motion now on behalf of Alder Group, Inc., for substitution of judge and we move on from there." Judge Banks then granted plaintiffs' motion to reconsider.

¶ 13 Defendant Alder Group, Inc., then presented its motion for substitution of judge as of right from Judge Banks. Plaintiffs responded that the trial court had ruled on a substantial issue in the case within the meaning of section 2-1001(a)(2)(ii), when it reconsidered and vacated the order granting Alco, Inc.'s motion for substitution of judge, so that Alder Group, Inc., had no right to a substitution of judge. Judge Banks ordered further briefing on the issue. Following briefing, Judge Banks denied Alder Group, Inc.'s motion for substitution of judge on the ground that the court had made a substantial ruling on a substantive issue when it determined Alco, Inc.'s status, and when the court vacated the order of substitution.

ΒΆ 14 The case then proceeded to trial and the jury found in favor of all three plaintiffs and against all defendants. The jury awarded $7 million to the estate of Christina Chakonas, which was reduced to $4.2 million because the jury found that Christina was 40% at fault. The jury also awarded $8 million to the estate of Diana Kakidas and $8 million to the estate of Adam McDonald. The jury answered special interrogatories finding that ...


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