In the majority opinion given in a substitution of judge denial and subsequent appeal, the Illinois Appellate Court held that the denial of a motion for substitution of judge for cause is not a final order. The court cited the case of In re Marriage of Nettleton, 348 Ill.App.3d 961 (2004). Instead the court stated that it is an interlocutory order that is appealable on review from a final order.
In this case, the HOB I Holding Corp. and the Eva Buziecki Trust appealed to the Illinois Appellate Court when its request for a substitution of judge as a matter of right under Section 2-1001(a)(2) of the Illinois Code of Civil Procedure was denied. The moving parties relied on Rule 304(a) finding that there was no just reason to delay enforcement or appeal of that March 27, 2014 order denying the request for substitution of judge.
The majority opinion – noting “it is well-settled law that the mere inclusion of a Rule 304(a) finding in a non-final order does not make the order appealable under the Supreme Court rules and concluded that Rule 304(a) did not provide this court with jurisdiction because the March 27, 2014, order denying a substitution of judge did not ‘become’ a final order simply by including the statutory language.”
In this case, the March 27 order did contain Rule 304 language. However, it is well-settled law that the mere inclusion of a Rule 304(a) finding in a non-final order does not make the order appealable under Supreme Court rules. The court referred to In re Marriage of Nettleton, 348 Ill.App.3d 961 (2004) and other authority.
Accordingly, the majority of this panel held that Rule 304(a) did not provide this court with jurisdiction because the March 27, 2014 order denying the substitution of judge did not “become” a final order simply by including the statutory language.
There was a dissent filed that distinguished the case of In re Marriage of Nettleton. The dissent stated that unlike in Nettleton, the trial court in this case did not refuse to include Rule 304(a) language in the order denying substitution of judge. Furthermore, the Nettleton court’s statement that such language does not vest this court with jurisdiction to review otherwise non-appealable orders was dicta and is not controlling.
The dissent stated that substitution of judge as of right is absolute when it is made properly, and the trial court has no discretion to deny the motion. However, “judge shopping” is prohibited and a party that does not file a motion for substitution of judge at the earliest practical moment may be properly denied substitution if the party had an opportunity to test the waters and form an opinion as to the court’s disposition. Nevertheless, the statute’s provisions are to be liberally construed in order to effect rather than defeat the right of substitution. In fact, this court has noted that the “importance of a proper ruling on a motion for substitution of judge is so great that some courts have held that the wrongful refusal of a proper request for substitution of judge renders all subsequent orders by that judge entered in the case void.” Sarah Bush Lincoln Health Center v. Berlin, 268 Ill.App.3d 184 (1994).
The dissent concluded that a final order absolutely fixing the parties’ rights was entered in this case. The denial of defendants’ motion for substitution of judge as a right fix the rights of the parties regarding that separate and distinct case. Finally, the dissent stated that cases refusing the find orders final and appealable despite the inclusion of Rule 304(a) language are distinguishable from this action and that the factors should be considered in applying Rule 304(a) support the exercise of jurisdiction in this case.
Kreisman Law Offices has been handling birth trauma injury cases, birth injury cases and medical negligence cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 38 years, in and around Chicago, Cook County and its surrounding areas including, Palos Park, Chicago Ridge, Berwyn, Cicero, Elgin, Western Springs, Willow Springs, Riverdale and Melrose Park, Ill.
Related blog posts: