This blog post was written by HeplerBroom Summer Associate Patricia L. Pfeiffer. Partner Elizabeth Dyer Kellett also contributed to the post.
Under Illinois statute 735 ILCS 5/2-1001(a)(2), every party to a case has an absolute right for one substitution of judge. As long as the judge has not made rulings on any substantial issues in the case, the trial court has no discretion to deny such a motion.
In Simpson v. Knoblauch, 2020 IL App (5th) 190439, the Fifth District was asked to decide whether a trial court may deny a motion for substitution of judge under 735 ILCS 5/2-1001(a)(2) when the court has found the moving party “tested the waters” in a different cause of action that arose from the same occurrence and was brought by a different plaintiff against the same defendant. In reversing the trial court’s order, the Fifth District held that a trial court does not have discretion to deny a motion for substitution of judge under these circumstances.
Arnold Simpson and his passenger, Linda Abert were injured when they were rear-ended by Daniel Knoblauch. Abert brought separate suits against Knoblauch and Simpson for the injuries she sustained. Knoblauch brought a contributory negligence claim against Simpson for the damages Abert was claiming against him. Abert and Simpson settled in good faith and Simpson moved to dismiss Knoblauch’s contributory negligence claim pursuant to the Joint Tortfeasor Contribution Act, 740 ILCS 110/2 §2(c)(d) (2018). The trial court granted Abert’s motion.
Abert’s claim against Knoblauch also settled, but not before the trial court: (1) heard a motion for summary judgement; (2) heard a motion for sanctions; (3) heard a motion to bar Knoblauch’s expert; (4) heard Abert’s argument that Knoblauch had a duty to stop and avoid the collision; (5) indicated that Knoblauch’s defense that a “phantom semi-truck” had blocked his view and prevented him from having enough time to avoid the collision was not credible; and (6) ordered the parties to mediate. While the judge heard arguments for the motions, no rulings were made before the case settled.
Several months later, Simpson brought his own claim against Knoblauch and the case was assigned to the same judge who presided over Abert v. Knoblauch. Knoblauch filed a motion for substitution of judge as of right under 735 ILCS 5/2-1001(a)(2). Simpson objected, arguing that Knoblauch had “tested the waters” of his defense in Abert v. Knoblauch. Simpson argued that because the two cases arose out of the same occurrence, the witnesses and defenses would be the same. In particular, Simpson pointed to the trial court’s indication that Knoblauch’s “phantom truck defense” was not credible. Simpson reasoned that since Knoblauch already had an idea of how the judge would treat the case, Knoblauch should not be allowed to substitute the judge as of right.
The trial court agreed and denied Knoblauch’s motion for substitution of judge. Knoblauch filed a motion to reconsider, or in the alternative, to certify the following question for appeal: “[d]oes a trial court have discretion to deny . . .[a] motion for substitution of judge when the court has found [that the moving party] tested the waters in a different cause of action arising from the same occurrence brought by a different plaintiff against the same defendant?” The trial court certified the question for appeal.
The Fifth District focused its analysis on the language of the statute, which reads: “an application for substitution of judge as of right 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 . . .” 735 ILCS 5/2-1001 (2018) (emphasis added); Simpson v. Knoblauch, 2020 IL App (5th) 190439, ¶¶ 18-19. The fact that Knoblauch’s motion to substitute judge occurred in Simpson v. Knoblauch, a different case with a different plaintiff than Abert v. Simpson, was salient for the court. Simpson, 2020 IL App (1st) 190439 at ¶¶ 21, 23, 30. Since the trial judge did not rule on any substantial issues in Simpson v. Knoblauch, Knoblauch should be allowed to substitute the judge as of right. Id. at ¶ 31.
The Fifth District further noted that this case differed from other cases that upheld the “testing the waters” theory and denied a party’s application for substitution of judge as of right because in those cases the same plaintiff refiled the same cause of action against the same defendant after voluntary dismissals. Id. at ¶¶ 20-22. Here, however, only the occurrence that gave rise to the cause of action was the same. Id. at ¶ 23. Thus, the trial court did not have discretion to deny Knoblauch’s motion, and the Fifth District remanded Knoblauch’s case to be tried by a different judge. Id. at ¶¶ 33-34.