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Williams v. Leonard

Court of Appeals of Illinois, First District, Third Division

December 27, 2017

ANGELA WILLIAMS, a Minor, by Her Father and Next Friend RICHARD WILLIAMS, and REGINA HOLLOWAY, Plaintiffs-Appellees,
v.
GREGORY LEONARD, Lakeshore Recycling Systems, LLC, and LRS Holdings, LLC, Defendants. (Gregory Leonard, Defendant-Appellant.)

         Appeal from the Circuit Court of Cook County. No. 17 L 3861 Honorable William E. Gomolinski, Judge Presiding.

          JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Lavin concurred in the judgment and opinion.

          OPINION

          HOWSE JUSTICE

         ¶ 1 This case presents a matter of first impression for this court: whether a defendant may move for substitution of judge as a matter of right under our supreme court's decision in Bowman v. Ottney, 2015 IL 119000, when a plaintiff has voluntarily dismissed her case after the trial court has ruled on substantive issues in the case and then refiled the same case against the same defendant. Stated differently, the question is whether our supreme court limited the proscription on motions for substitution of judge as a matter of right in refiled proceedings following voluntary dismissal, where the refiled case is assigned to the same trial judge who had ruled on substantive issues in the original case, to the plaintiff who voluntarily dismissed the case, or whether the defendant retains the right to seek a substitution of judge as a matter of right in the refiled case. We answer in the negative and affirm the trial court's judgment denying defendant's motion for substitution of judge in this case.

         ¶ 2 BACKGROUND

         ¶ 3 The resolution of the issues presented by this appeal is governed by the application of the law to undisputed facts. In August 2015, plaintiffs filed a complaint (original complaint) against defendant, Gregory Leonard, and later an amended complaint (amended complaint) adding Leonard's employers as defendants. Neither plaintiffs' original complaint nor their amended complaint contained a jury demand. In October 2015, plaintiffs filed a motion for leave to file a late jury demand, which the trial court denied for reasons not germane to the issues on appeal. In November 2016, plaintiffs filed a second amended complaint, and later that month employer-defendants moved to dismiss certain counts. In February 2017, the trial court granted employer-defendants' motion to dismiss with prejudice. In April 2017, plaintiffs moved for voluntary dismissal of their second amended complaint (hereinafter Williams I). The trial court granted the motion for voluntary dismissal.

         ¶ 4 Days later, plaintiffs refiled their complaint (hereinafter Williams II) pursuant to section 13-217 of the Code of Civil Procedure (Code) (735 ILCS 5/13-217 (West 2016)). The complaint in Williams II only adds a jury demand to plaintiffs' claims. The clerk of the circuit court assigned Williams II to the same trial judge who presided over the case under Williams I pursuant to an administrative order of the circuit court. In May 2017, defendant filed a motion for substitution of judge as a matter of right pursuant to section 2-1001(a)(2) of the Code (735 ILCS 5/2-1001(a)(2) (West 2016)). Plaintiffs objected to defendant's motion to substitute judge based on (1) the aforementioned administrative order and (2) our supreme court's decision in Bowman. Plaintiffs argued that under Bowman their refiled case was not a new case for purposes of section 2-1001(a)(2) and, since the trial judge had ruled on substantial issues "in the case, " defendant was precluded from moving for substitution of judge as a matter of right.

         ¶ 5 Relying on Bowman, the trial judge denied defendant's motion to substitute judge as a matter of right. The trial judge recognized that (1) whether Bowman applied to the defendant in a voluntarily dismissed, then refiled, case was a significant question and (2) if he was wrong and improperly denied defendant's motion to substitute judge as a matter of right, all of his subsequent orders would be void. With that in mind, the judge stated he would enter whatever orders were needed to allow defendant to appeal his ruling. Defendant filed a notice of interlocutory appeal as of right pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017). The trial court entered an order on its own motion, staying proceedings pending resolution of this appeal. Defendant filed a motion in this court, seeking a finding that we have jurisdiction to hear this appeal pursuant to Rule 307(a)(1). This court granted the motion, finding we have jurisdiction to hear this appeal.

         ¶ 6 For the following reasons, we affirm the trial court's judgment denying defendant's motion to substitute judge as a matter of right and hold, pursuant to our supreme court's decision in Bowman, that where a plaintiff voluntarily dismisses a case after the trial judge has ruled on substantial issues then refiles the same case against the same defendant, neither party may move to substitute judge as a matter of right under section 2-1001(a)(2) of the Code in the refiled case.

         ¶ 7 ANALYSIS

         ¶ 8 Defendant argues the trial court erroneously denied his motion for substitution of judge because the motion was timely, he made the motion before trial or hearing on Williams II began, and he made the motion before the trial judge "had ruled on any substantial issue in Williams II." Defendant argues his motion satisfied all of the statutory criteria, thus the trial court was without discretion to deny it, and nothing in our supreme court's decision in Bowman, 2015 IL 119000, changes that fact.

         ¶ 9 We review the denial of a motion to substitute judge as a matter of right de novo, and our review should lean toward favoring, rather than defeating, a substitution of judge. Petalino v. Williams, 2016 IL App (1st) 151861, ¶ 16. "Illinois courts have held that, when properly made, a motion for substitution of judge as a matter of right is absolute, and the circuit court has no discretion to deny the motion." (Internal quotation marks omitted.) Id. Substitution of judge in a civil action is controlled by section 2-1001(a)(2) of the Code.

"The version of section 2-1001 that is currently in effect was enacted in 1993, when the General Assembly rewrote the statute. Prior to the 1993 amendment, the provisions under which a party could request a substitution of judge were embodied in the legislative acts governing changes of venue. Ill. Rev. Stat. 1991, ch. 110, ¶¶ 2-1001, 2-1002. Under those provisions, a party seeking a substitution of judge was required to allege bias or prejudice on the part of the judge presiding in the cause." Bowman, 2015 IL 119000, ¶ 14.

         ¶ 10 Section 2-1001 now reads, in pertinent part, as follows:

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

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