Powell v. Dean Foods Company

Sixth Division
September 10, 2010

Nos. 1-08-2513)
1-08-2554)

TRACEY POWELL, Individually and as Special ) Appeal from the Circuit Court
Administrator of the Estate of Adam McDonald, ) of Cook County
Deceased, GEORGE KAKIDAS, Individually and as )
Special Administrator of the Estate of Diana Kakidas, )
Deceased, and ALEXANDER CHAKONAS, as Special )
Administrator of the Estate of Christina Chakonas, )
Deceased, )
) 03 L 15077
Plaintiffs-Appellees, ) 03 L 16261
)
v. )
)
DEAN FOODS COMPANY, ALCO OF WISCONSIN, )
INC., ALDER GROUP, INC., and JAIME L. REEVES, ) Honorable
) Patricia Banks,
Defendants-Appellants. ) Judge Presiding

JUSTICE McBRIDE delivered the opinion of the court:

In July 2002, Adam McDonald, Diana Kakidas and Christina Chakonas were killed when

a tractor-trailer driven by Jaime L. Reeves struck their vehicle in an intersection near Wanatah,

Indiana. 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, as special administrator of the

estate of Christina Chakonas, deceased, filed wrongful death actions against defendants Reeves;

Dean Foods Company (Dean Foods), the owner of the trailer; Alco of Wisconsin, Inc. (Alco

Wisconsin), Reeves’ employer; and Alder Group, Inc. (Alder Group), owner of the tractor.

Following a trial, the jury returned a verdict in favor of plaintiffs, finding defendants jointly and

severally liable, and awarded $8 million to the McDonald estate, $8 million to the Kakidas estate,
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and $7 million to the Chakonas estate. In a special interrogatory, the jury also found that

Christina Chakonas was 40% contributorily negligent in causing the collision and reduced the

award to the Chakonas estate accordingly to $4.2 million.

All defendants appeal. While defendants have raised multiple issues on appeal, our

review turns on the consideration of one issue: whether the trial court erred in denying Alder

Group’s motion for a substitution of judge as a matter of right pursuant to section 2-1001(a)(2) of

the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1001(a)(2) (West 2006)).

We recite only those facts necessary for our disposition of this appeal.

On July 6, 2002, Adam McDonald and Diana Kakidas were passengers in a 2002 Pontiac

Grand Am automobile driven by Christina Chakonas. All three occupants of the Chakonas

vehicle were killed when a Dean Foods tractor-trailer driven by defendant Jaime L. Reeves

collided with the Chakonas vehicle. The tractor-trailer collided with the Chakonas vehicle as the

Chakonas vehicle crossed the eastbound lanes of traffic on Route 30, in the process of turning

left into the westbound lanes of Route 30, at the intersection of Route 30 and Lincoln Street in

Wanatah, Indiana.

Two actions were filed in the circuit court of Cook County as a result of the fatal

collision. In December 2003, plaintiff Chakonas filed his original complaint in the law division

of the circuit court of Cook County. That complaint, assigned case No. 03 L 15077 named

Reeves; Alco, Inc.; Alco of Wisconsin, Inc., d/b/a/ Robert Alder & Sons; and Dean Foods as

defendants. In July 2004, plaintiff Chakonas filed an amended complaint, naming Reeves; Alco,

Inc.; Alco Wisconsin; Dean Foods; and Dean Illinois Dairies, LLC (Dean Illinois), as defendants.

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Also in December 2003, plaintiffs Powell and Kakidas filed their original complaint, assigned

case No. 03 L 16261, naming only Reeves and Dean Foods as defendants. In July 2004,

plaintiffs Powell and Kakidas filed an amended complaint, naming Reeves; Alco, Inc.; Alder

Group; and Dean Illinois Dairies, LLC, as defendants. In August 2004, plaintiff Chakonas filed a

motion to consolidate, seeking to consolidate the Chakonas and Powell/Kakidas actions, which

the trial court granted in September 2004, and case No. 03 L 16261 was consolidated into case

No. 03 L 15077.

In August 2007, after discovery was completed, an order was entered setting the

consolidated case for trial on October 11, 2007. At the time the case was set for trial, the caption

of the consolidated cases named the following as defendants: Reeves, Alco, Inc., Alco

Wisconsin, Dean Foods, Dean Illinois and Alder Group

On October 11, 2007, the following defendants individually exercised their right to

substitute judge as a matter of right pursuant to section 2-1001(a)(2) of the Code: Dean Illinois,

Alco Wisconsin, Dean Foods and Alco, Inc. On October 12, 2007, plaintiffs filed a combined

motion seeking reconsideration of Judge Banks’ order granting “Alco, Inc.’s” motion for

substitution of judge. The trial court conducted a hearing on the motion the same day.

Plaintiffs moved to vacate the order granting “Alco, Inc.’s” motion for substitution of

judge as a matter of right, arguing that “Alco of Wisconsin, Inc.,” and “Alco, Inc.,” were

alternative names for the same party, and Alco Wisconsin had already exercised its right to

substitute judge as a matter of right pursuant to section 2-1001(a)(2) of the Code. Counsel for

Alco Wisconsin, who also represented Reeves and Alder Group, conceded at the hearing on

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plaintiffs’ motion to reconsider that “Alco, Inc.,” and “Alco of Wisconsin, Inc.,” were alternative

names for the same party. Counsel also agreed that the October 11, 2007, order granting the

motion to take a substitution of judge as a matter of right from Judge Banks should be vacated.

At the same time, said counsel presented a written motion for substitution of judge as a matter of

right on behalf of Alder Group to the trial court.

The following discussion took place at that hearing:

“MR. MULDOON [Chakonas attorney]: In both our initial

complaint and amended complaint, we named as defendant a

corporation called Alco, Inc. We also named a defendant by the

name of Alco of Wisconsin. Okay. As it turns out, Your Honor,

Alco, Inc., is a former name of Alco of Wisconsin, Inc. They had a

name change back in 1989.

***

MR. O’NEILL [Alco Wisconsin, Reeves and Alder Group

attorney]: Judge, Mr. Muldoon is right. Alco, Inc. was sued, and

they filed an appearance. In an amended complaint they were

dropped as a party. And, therefore, when I presented the motion

yesterday, it was an inadvertence on my part. And 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.

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THE COURT: I was wondering whether you had another

one.

MR. HEALY: Your Honor, I think it probably should be

done in series. The Court ruled on our motion to reconsider, and

then it raises some other issues then.

THE COURT: I’m going to grant [the] motion to

reconsider.

MR. HEALY: Thank you.

THE COURT: Counsel has conceded that Alco, Inc., and

Alco of Wisconsin are one and the same. So, therefore, he’s not

entitled to a substitution of right for Alco of Wisconsin.”

After the trial court granted the motion to reconsider, plaintiffs argued that this order

constituted a ruling on a “substantial issue in the case” within the meaning of section 2-

1001(a)(2) of the Code, and therefore, Alder Group had no right to seek a substitution of judge as

a matter of right under the statute. Counsel for Alder Group contended that the trial court’s

granting of plaintiffs’ motion to reconsider did not constitute a “substantial ruling.”

The trial court ordered briefing from the parties and held a hearing on the issue that

afternoon. After hearing argument from the parties, the trial court denied Alder Group’s motion

for substitution of judge as a matter of right based upon “the fact that the Court is of the opinion

that it did make a substantial ruling on a substantial issue.”

As noted, the consolidated cases proceeded to trial, and the jury returned a verdict in

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favor of plaintiffs and against defendants, finding Reeves negligent in causing the fatal July 6,

2002, motor vehicle collision and Dean Foods, Alco Wisconsin, and Alder Group vicariously

liable for Reeves’ negligence. The jury found defendant jointly and severally liable, and awarded

$8 million to the McDonald estate, $8 million to the Kakidas estate, and $7 million to the

Chakonas estate. The jury then reduced the award to the Chakonas estate to $4.2 million after

determining that Christina Chakonas was 40% contributorily negligent in causing the fatal

collision.

Judgment was entered on the verdict, and all of defendants’ posttrial motions were

denied; however, the trial court reduced the judgments in favor of the McDonald estate and the

Kakidas estate by $550,000, as a setoff of money which they had received in settlement from the

Chakonas estate. Specifically, the trial court denied defendants’ motions for a new trial in part

based upon the trial court’s denial of Alder Group’s October 12, 2007, motion for substitution of

judge as a matter of right and offered several reasons for that denial. In particular, the trial court

determined that it properly denied Alder Group’s motion for substitution of judge because: (1)

Alder Group had enjoyed an opportunity to “test the waters” and form an opinion as to the trial

court’s disposition to the merits of plaintiffs’ claims; (2) Alder Group waived its right to a

substitution of judge as a matter of right because it did not seek reconsideration of the trial

court’s order denying its motion for substitution; (3) Alder Group waived its right to a

substitution of judge as a matter of right because it did not subsequently seek a substitution of

judge for cause pursuant to section 2-1001(a)(3) of the Code (735 ILCS 5/2-1001(a)(3) (West

2006)); (4) the denial of Alder Group’s motion was not “overly prejudicial”; and (5) the evidence

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at trial demonstrated that Alder Group and Alco Wisconsin were related corporations and

“should have been treated as one party for the purposes of their substitution of judge motion.”

On appeal, defendants argue that the trial court erred by denying Alder Group’s motion

for substitution of judge as a matter of right, thereby voiding all subsequent orders entered in this

case.

Motions for substitution of judge as a matter of right are governed by section 2-1001 of

the Code, which states 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

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is presented by consent of the parties.” 735 ILCS

5/2-1001(a)(2) (West 2006).

We review a ruling on a motion to substitute judge de novo, and such review “ ‘should lean

toward favoring rather than defeating a substitution of judge.’ ” In re Austin D., 358 Ill. App. 3d

794, 799 (2005), citing Rodisch v. Commacho-Esparza, 309 Ill. App. 3d 346, 350 (1999). The

trial court has no discretion to deny a proper motion for substitution of judge. In re Austin D., 358

Ill. App. 3d at 799. “[A]ny and all orders entered after the improper denial of a motion to

substitute judge are null and void.” In re Austin D., 358 Ill. App. 3d at 799, citing In re Dominique

F., 145 Ill. 2d 311, 324 (1991), and Rodisch, 309 Ill. App. 3d at 351-52. See also Chicago

Transparent Products, Inc. v. American National Bank & Trust Co. of Chicago, 337 Ill. App. 3d

931, 945 (2002).

“ ‘The substitution of judge as a matter of right is absolute where the motion requesting the

substitution is filed before the judge presiding in the case has made a substantial ruling.’ ”

Scroggins v. Scroggins, 327 Ill. App. 3d 333, 336 (2002), quoting Alcantar v. Peoples Gas Light &

Coke Co., 288 Ill. App. 3d 644, 648 (1997). “However, to prohibit litigants from ‘judge shopping’

and seeking a substitution only after they have formed an opinion that the judge may be

unfavorably disposed toward the merits of their case, a motion for substitution of judge as [a

matter] of right must be filed at the earliest practical moment before commencement of trial or

hearing and before the trial judge considering the motion rules upon a substantial issue in the

case.” In re Estate of Hoellen, 367 Ill. App. 3d 240, 245-46 (2006). A substantial issue “is one

that directly relates to the merits of the case.” In re Austin D., 358 Ill. App. 3d at 800, citing

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Rodisch, 309 Ill. App. 3d at 350-51. “In addition, [Illinois] courts have determined that even if the

trial court did not rule on a substantial issue, a motion for substitution of judge as [a matter] of

right may still be denied if, before filing the motion, the moving party had an opportunity to test

the waters and form an opinion as to the court’s disposition toward his claim.” Hoellen, 367 Ill.

App. 3d at 246.

Here, we must consider whether the trial court’s grant of a motion to reconsider a

substitution of judge as of right constitutes a “substantial issue” so as to preclude Alder Group’s

motion for a substitution of judge as a matter of right. Further, if Alder Group was entitled to a

substitution of judge, then we need to determine the effect of that error on the remaining

defendants.

After granting Alco, Inc.’s substitution of judge motion on October 11, 2007, the only

ruling made by the trial court was to grant plaintiffs’ motion to reconsider the substitution of judge

as a matter of right for Alco Inc. At the hearing on plaintiffs’ motion, counsel for Alco Wisconsin,

Reeves and Alder Group admitted the error and conceded that the substitution should be vacated.

During the hearing, counsel presented a motion for substitution of judge as a matter of right on

behalf of Alder Group. Moments later, the trial court granted the motion to reconsider. Later that

afternoon, the court heard arguments on Alder Group’s motion for substitution of judge as a matter

of right before concluding that it had ruled on a substantial issue and denying Alder Group’s

motion.

Defendants’ primary argument on this issue is that the trial court’s order granting the

motion to reconsider on the substitution of judge did not constitute a substantial ruling within the

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meaning of section 2-1001(a)(2). Plaintiffs respond that trial court properly denied Alder Group’s

motion for substitution of judge as a matter of right because the trial court’s order granting the

motion to reconsider constituted a ruling on a “substantial issue in the case.”

For the reasons that follow, we find the trial court’s granting of plaintiffs’ motion to

reconsider did not constitute a “substantial issue” because the ruling was procedural and did not

directly relate to the merits of the case. See In re Austin D., 358 Ill. App. 3d at 800. The trial

court’s ruling on plaintiffs’ motion to reconsider did not constitute a ruling on a “substantial issue”

because it did not involve a matter pertaining to the merits of the case, i.e. negligence in a wrongful

death action. It concerned a procedural matter, whether Alco Wisconsin and Alco, Inc., were the

same entity and, thus, only entitled to one motion for substitution of judge as a matter of right. No

evidence was presented and the court’s ruling did not involve any determination of negligence or

rights of the parties. Further, this motion was unchallenged by defendants. Counsel for Alco

Wisconsin, Reeves and Alder Group conceded that plaintiffs’ motion to reconsider should be

granted and admitted that Alco, Inc., was a former name for Alco Wisconsin. Thus, the trial court

was not called upon to determine a contested issue. Under these circumstances, the trial court erred

in denying Alder Group’s motion for substitution of judge as a matter of right pursuant to section 2-

1001(a)(2).

We point out that none of the parties cites nor has our research revealed a case that

considered whether a motion to reconsider a substitution of judge is a ruling on a substantial issue.

However, we find support for our conclusion in our review of decisions that considered whether

certain rulings concerned a substantial issue. In Nasrallah v. Davilla, 326 Ill. App. 3d 1036, 1039-

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40 (2001), the reviewing court held that the trial court’s rulings on an evidence deposition fee and

an extension of time to answer interrogatories were not substantial rulings so as to preclude a

party’s motion for substitution of judge as a matter of right. The court in Rodisch noted that rulings

on a substantial issue were found in cases involving a motion to dismiss, pretrial rulings of law and

discussions with the movant in which the trial court indicated a position on at least one issue.

Rodisch, 309 Ill. App. 3d at 351, citing City of Peoria v. Peoria Rental, Inc., 61 Ill. App. 3d 1

(1978), In re Estate of Roselli, 70 Ill. App. 3d 116 (1979), and Paschen Contractors, Inc. v. Illinois

State Toll Highway Authority, 225 Ill. App. 3d 930 (1992). The Rodisch court also discussed

instances in which reviewing courts have declined to find a ruling on a substantial issue occurred

when the trial court held a pretrial conference and the record demonstrated that no rulings went to

the merits of the case. Rodisch, 309 Ill. App. 3d at 351, citing Becker v. R.E. Cooper Corp., 193

Ill. App. 3d 459 (1990), and Frede v. McDaniels, 37 Ill. App. 3d 1053 (1976).

Plaintiffs cite In re Marriage of Roach, 245 Ill. App. 3d 742 (1993), as presenting a

procedurally similar situation to that present in this case. In Roach, the trial court was asked to

enforce and modify the maintenance in a Connecticut dissolution of marriage. The parties

stipulated to the modifications and the trial court entered an order modifying the dissolution. The

movant then failed to comply with the terms of the modified order and the trial court issued a rule

to show cause why the movant should not be held in contempt of court. Two years after the

stipulated modification was entered, the movant sought a substitution of judge as of right. The

reviewing court held that the stipulated modification order was a substantive ruling on the case.

Roach, 245 Ill. App. 3d at 747. Here, plaintiffs assert that this is analogous to the instant case

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because it also involved a stipulation, but they fail to look at the substance of the stipulation. In the

present case, the parties agreed that Alco, Inc., was a former name of Alco Wisconsin and a

substitution of judge on Alco, Inc.’s behalf was error. This did not involve any issue on the merits

of the case and the trial court made no finding, stipulated or otherwise, on the ultimate claims of

negligence. In contrast, the court in Roach entered an order on the merits of the case, the

modification of maintenance in a dissolution of marriage. Instead of supporting plaintiffs’ position,

Roach further demonstrates what type of ruling involves a substantial issue on the merits.

Moreover, Alder Group had no opportunity to “test the waters” and form an opinion as to

the trial court’s disposition toward the merits of plaintiffs’ claims. In Levaccare v. Levaccare, 376

Ill. App. 3d 503 (2007), a sister filed suit against her brother alleging that the brother had diverted

to himself, his wife, and his children, millions of dollars that her mother intended to give to her.

After failed settlement negotiations, in which the trial court was intimately involved, the brother

moved for a substitution of judge as a matter of right. Levaccare v. Levaccare, 376 Ill. App. 3d

503, 508 (2007). Though the parties agreed that the trial court had ruled on a “substantial issue”

prior to the brother’s motion for substitution, the reviewing court further noted that the brother had

ample opportunity to “test the waters” and form an opinion as to the court’s disposition toward his

position, especially since the trial court was so intimately involved in the parties’ settlement

negotiations. Levaccare, 376 Ill. App. 3d at 508. In contrast to Levaccare, here the record shows

that the trial court had not yet made any rulings with regard to the merits of this case, and the record

is devoid of any expression by the trial court as to its opinion of the merits of plaintiffs’ claims.

Plaintiffs also contend that the trial court’s denial was correct because the evidence at trial

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demonstrated that Alder Group and Alco Wisconsin are the same entity and therefore were properly

treated as the same “party” for purposes of section 2-1001(a)(2) of the Code (735 ILCS 5/2-

1001(a)(2) (West 2006)). Thus, Alder Group could not seek a substitution of judge as a matter of

right because Alco Wisconsin had already exercised its right to a substitution of judge as a matter

of right. Plaintiffs point to the trial testimony of Reeves and Dean Ayen, a manager of both Alco

Wisconsin and Alder Group, in support of this argument. Ayen described Alco Wisconsin and

Alder Group as “different corporations, but the same company.” Ayen also testified that he was an

employee of both Alco Wisconsin and Alder Group. Further, Reeves testified that he worked for

Alco Wisconsin, “a part” of Alder Group

We agree that the record reveals Alder Group and Alco Wisconsin are related entities and

that the two corporations have the same owners and officers. We also note that the two

corporations were represented by the same counsel at trial, and the two corporations share the same

insurance policies. However, none of the evidence showing that Alco Wisconsin and Alder Group

were related was presented to the trial court before it ruled on Alder Group’s motion for

substitution of judge as a matter of right.

Despite the aforementioned similarities, the record also shows that Alco Wisconsin and

Alder Group are two different corporations incorporated in different states. Alder Group is a

Wisconsin corporation, incorporated under the laws of that state in 1994, while Alco Wisconsin is

an Illinois corporation, incorporated under the laws of Illinois in 1999. Under Illinois law, a

corporation is deemed a distinct legal entity, separate from other corporations with which it may be

affiliated. Forsythe v. Clark USA, Inc., 361 Ill. App. 3d 642, 646 (2005), citing Daley v. American

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Drug Stores, Inc., 294 Ill. App. 3d 1024, 1027 (1998). The testimony of Reeves and Ayen does not

alter the fact that Alco Wisconsin and Alder Group were incorporated separately in different states

and are two different corporate entities.

Further, the cases relied on by plaintiffs did not involve a determination of whether two

individually named corporations were each entitled to move for a substitution of judge as a matter

of right under section 2-1001(a)(2). Rather, those cases involved questions of whether a parent

company can be held liable when it directs or controls the actions of a subsidiary (Forsythev. Clark

USA, Inc., 224 Ill. 2d 274, 290 (2007)), whether Illinois courts have personal jurisdiction over the

foreign parent corporation because jurisdiction exists over the local subsidiary (Palen v. Daewoo

Motor Co., 358 Ill. App. 3d 649, 660-61 (2005)), and whether there existed such unity of interest

and ownership that the separate personalities of the corporation and the individual ceased to exist in

order to pierce the corporate veil (Washington Courte Condominium Ass’n-Four v.

Washington-Golf Corp., 267 Ill. App. 3d 790, 816-17 (1994)). None of these cases are dispositive

on the issue before us.

Section 2-1001(a)(2)(i) of the Code refers to “each party.” 735 ILCS 5/2-1001(a)(2)(i)

(West 2006). Our statute does not define the word “party”; however, it must be given its plain and

ordinary meaning. The word “party” is defined as “one by or against whom a lawsuit is brought.”

Black’s Law Dictionary 1154 (8th ed. 2004). The instant lawsuit was brought against both Alder

Group and Alco Wisconsin individually and the verdict was entered against both individually, and

each was entitled to a substitution of judge as a matter of right under section 2-1001(a)(2) of the

Code.

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Plaintiffs finally assert that the defendants other than Alder Group lack standing to argue

that the trial court erred by denying Alder Group’s motion for substitution of judge as a matter of

right. In support of this contention, plaintiffs cite to Aussieker v. City of Bloomington, 355 Ill. App.

3d 498 (2005). In Aussieker, a divided panel of the Fourth District of the Illinois Appellate Court

held that each individual plaintiff in a multiplaintiff civil action is deemed to be a separate party,

and each such party is entitled to one motion for substitution of judge as a matter of right.

Aussieker, 355 Ill. App. 3d at 503. The court also held that the other plaintiffs in the action lacked

standing to claim that the trial court erred when denying one plaintiff’s motion for substitution.

Aussieker, 355 Ill. App. 3d at 503. Under the reasoning of the majority in Aussieker, the

subsequent orders in the case at bar would be null and void as to Alder Group, but would be valid

as to Alco Wisconsin, Dean Foods, and Reeves.

Less than six months after Aussieker was decided, a unanimous panel of the Fourth District

decided In re Austin D., 358 Ill. App. 3d 794 (2005). The In re Austin D. court stated that the

holding in Aussieker is “simply wrong.” In re Austin D., 358 Ill. App. 3d at 799. There, the court

found that under Aussieker’s rule, if a party’s motion for substitution should have been granted in a

case involving multiple plaintiffs or multiple defendants, the aggrieved party would be entitled to

further proceedings before a different trial judge, while the other plaintiffs or defendants, as the

case may be, would not. In re Austin D., 358 Ill. App. 3d at 799. The In re Austin D. court held

that such a result would lead to cases involving the same issues to proceed separately, “increasing

the possibility of completely different rulings, despite nearly identical facts, and the wasting of

judicial resources.” In re Austin D., 358 Ill. App. 3d at 799.

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We agree with the holding of In re Austin D. The facts of this case further illustrate why the

improper ruling is applicable to all defendants. For example, if we were to order a new trial as to

Alder Group only, a new jury could conclude that Alder Group was not negligent. Such a finding

would be at odds with the verdict against the remaining defendants. Illinois case law holds that any

and all orders entered after the improper denial of a motion to substitute judge are null and void. In

re Austin D., 35 Ill. App. 3d at 799, citing In re Dominique F., 145 Ill. 2d at 324, and Rodisch, 309

Ill. App. 3d at 351-52. It only follows that such orders are void as to all parties in the action. In re

Austin D., 358 Ill. App. 3d at 799. Consequently, all defendants in the case at bar have standing to

challenge the denial of Alder Group’s motion for substitution of judge as a matter of right and all

subsequent orders following the improper denial of Alder Group’s motion for substitution of judge

are void as to all parties.

Based upon the foregoing reasons, we hold that the trial court erred by denying Alder

Group’s motion for substitution of judge as a matter of right. We need not consider any of the other

issues raised on appeal. We reverse the order denying the motion for substitution of judge and

vacate all subsequent orders. This cause is remanded to the presiding judge of the law division of

the circuit court of Cook County for reassignment to another trial judge for a new trial.

Reversed in part and vacated in part; cause remanded.

J. GORDON, concurs.

JUSTICE ROBERT E. GORDON, dissenting:

I disagree with the result reached by the majority and with the precedential underpinnings

upon which its conclusions are based. I agree with the majority that the trial court erred by denying

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the Alder Group’s motion for substitution of judge as a matter of right. I agree that we must reverse

the order denying the Alder Group’s motion for substitution of judge, as well as the order entered

for judgment on the jury verdict against the Alder Group. However, I would not vacate all

subsequent orders concerning the other defendants. In particular, I would not vacate the order

entering judgment on the jury’s verdict against them.

The defendants—other than Alder Group—lacked standing to claim that the trial court erred

by denying the Alder Group’s motion for substitution of judge. My dissent is based on the Fourth

District’s opinion in Aussieker v. City of Bloomington, 355 Ill. App. 3d 498 (2005), authored by

Justice Robert Steigmann, which the majority in this case more than adequately explains but does

not accept in its analysis. The Aussieker case involved 17 plaintiff taxpayers and real estate owners

in a multiplaintiff case against a city claiming that the city did not exercise appropriate diligence in

soliciting bids for the construction of a municipal arena. Aussieker, 355 Ill. App. 3d at 499. When

the trial court erroneously denied one plaintiff’s motion for substitution of judge, the Fourth District

majority opinion ruled that the erroneous ruling did not affect “the other 16 plaintiffs.” Aussieker,

355 Ill. App. 3d at 503. The majority further concluded that when a trial court erroneously denies

one plaintiff’s motion for substitution of judge in a multiple plaintiff case, it “simply makes no

sense” that the denial should affect the other 16 plaintiffs. Aussieker, 355 Ill. App. 3d at 503. The

plaintiffs’ “fundamental argument” was “that each of the 17 plaintiffs in this case is a separate party

who may separately assert rights statutorily afforded to parties in a civil case and who is entitled to

be treated separately from his or her coplaintiffs.” Aussieker, 355 Ill. App. 3d at 503. The same

logic should apply to multiple defendants, as we have in the case at bar.

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In Aussieker, Justice Sue Myerscough dissented on that issue; and in less than six months

after Aussieker was decided, she authored a unanimous opinion in the case of In re Austin D., 358

Ill. App. 3d 794 (2005), reaching the opposite result which the majority in the case at bar adopted.

The In re Austin D. opinion stated that the holding in Aussieker was simply “wrong.” In re Austin

D., 358 Ill. App. 3d at 799. The In re Austin D. court found that, under Aussieker, if a party’s

motion for substitution was granted in a case involving multiple plaintiffs or multiple defendants,

the aggrieved party would be entitled to further proceedings before a different trial judge, while the

other plaintiffs or defendants, as the case may be, would not. In re Austin D., 358 Ill. App. 3d at

799. The In re Austin D. court held that such a result would lead to cases involving the same issues

to proceed separately, “increasing the possibility of completely different rulings, despite nearly

identical facts, and wasting judicial resources.” In re Austin D., 358 Ill. App. 3d at 799. I disagree.

A trial court has control of its own docket; and if one party obtains a substitution of judge, a

new judge will usually hear the entire case. But most importantly, when a reviewing court remands

the case for a new trial for the party who received the improper ruling, the verdict will stand for the

parties not affected by the ruling, which will decrease the waste of judicial resources and better the

administration of justice.

Aussieker stands for the proposition that, if a trial judge improperly denies a party’s motion

for substitution of judge, the other parties are not affected by that improper ruling and thus, the

other parties lack standing to challenge the improper ruling. Aussieker also stands for the

proposition that any and all orders entered after the improper denial of a motion for substitute judge

are not null and void as to the other parties in a multiplaintiff or multidefendant action.

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In In re Austin D., Justice Myerscough wrote for the court, which ruled that “[a]ny and all

orders entered after the motion for substitution is improperly denied are null and void.” In re

Austin D., 358 Ill. App. 3d at 804, citing In re Dominique F., 145 Ill. 2d 311, 324 (1991); see also

In re Austin D., 358 Ill. App. 3d at 799, citing Rodisch v. Commacho-Esparza, 309 Ill. App. 3d 346,

351-52 (1999). However, Dominique F. and Rodisch are not cases with multiple parties and are

thus distinguishable from the case at bar. This court should reject the Fourth District’s holding in

In re Austin D., that “[i]t only follows that such orders are void as to all parties in the action.” In re

Austin D., 358 Ill. App. 3d at 799. Rather, we should adopt the view, taken by the majority in

Aussieker, that such orders are void only for the party whose motion for substitution was

improperly denied. Thus, I would rule that the jury verdict against Dean Foods Company, Alco of

Wisconsin, Inc., and James L. Reeves should stand. As a result I must respectfully dissent.

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