Alcantar by Alcantar v. Peoples Gas Light and Coke Co.

• Decision Date: 06 May 1997
• Docket Number: No. 1-95-3536,1-95-3536
• Citation: 288 Ill.App.3d 644,224 Ill.Dec. 372,681 N.E.2d 993
• Parties: , 224 Ill.Dec. 372 Mario ALCANTAR, a Minor, by his Mother, Kathy ALCANTAR; Lance Jones, a Minor, and Michael Jones, a Minor, by their Mother, Miranda Jones; and John Jones, a Minor, by his Mother, Alma Jones, Plaintiffs, v. PEOPLES GAS LIGHT AND COKE COMPANY, Defendant-Appellee and Cross-Appellant (Mamie Carpenter and Otis Carpenter, Defendants, Benjamin and Shapiro, Respondent-Appellant and Cross Appellee).
• Court: United States Appellate Court of Illinois

Page 993

681 N.E.2d 993

288 Ill.App.3d 644, 224 Ill.Dec. 372

Mario ALCANTAR, a Minor, by his Mother, Kathy ALCANTAR Lance Jones, a Minor, and Michael Jones, a Minor, by their Mother, Miranda Jones; and John Jones, a Minor, by his Mother, Alma Jones, Plaintiffs, v. PEOPLES GAS LIGHT AND COKE COMPANY, Defendant-Appellee and Cross-Appellant (Mamie Carpenter and Otis Carpenter, Defendants, Benjamin and Shapiro, Respondent-Appellant and Cross Appellee).

No. 1-95-3536.

Appellate Court of Illinois First District, Second Division.

May 6, 1997.

David A. Novoselsky & Associates, Chicago (David A. Novoselsy and Margarita T. Kulys, of counsel), for Respondent-Appellant and Cross-Appellee.

Ross & Hardies, Chicago, Elizabeth West Speidel and Darren J. Hunter, for Defendant-Appellee and Cross-appellant.

Justice McNULTY delivered the opinion of the court:

Respondent, the law firm of Benjamin & Shapiro, appeals from the trial court order denying its motion for substitution of judge and from the order imposing sanctions against Benjamin & Shapiro in the amount of $13,028.71, for filing a frivolous complaint against defendant Peoples Gas. Peoples Gas cross-appeals from the trial court's sanction order, claiming that the court should have awarded attorney fees and costs in the entire amount requested by Peoples Gas, $21,690.66. Peoples Gas also seeks attorney fees and costs on the basis that this appeal is frivolous. We affirm the trial court order denying Benjamin & Shapiro's motion for substitution of judge, and we also affirm the trial court order awarding $13,028.71 in sanctions to Peoples Gas. We deny Peoples Gas' motion for sanctions on appeal.

Plaintiffs, Mario Alcantar, Lance Jones, Michael Jones and John Jones, first filed suit against defendants Mamie and Otis Carpenter on August 22, 1990, alleging that they suffered personal injuries in a gas explosion at the Carpenters' home on February 27, 1990. In response to a subpoena issued to Peoples Gas on August 24, 1990, Peoples Gas produced records showing that the Carpenters called Peoples Gas on January 18, 1990, requesting a shut off of gas services at the premises. The shut off was scheduled for January 23, 1990. Peoples Gas went to the premises on that date but could not gain access to the gas meter, because the customer was not present. The customer subsequently rescheduled the shut off to April 11, 1990, but Peoples Gas was unable to complete the shut off on that date because the B-Box (underground valve) could not be located. The distribution department of Peoples Gas was sent to the premises on April 25, 1990, to locate the B-Box, and the shut off was completed on that date. There was no record of a gas explosion on the premises.

The depositions of all four plaintiffs were taken on October 12, 1992. Plaintiffs testified that they entered the Carpenters' vacant home and set a fire to help them see where they were going. Plaintiff Michael Jones filled a plastic bowl with papers, ignited a piece of paper using the furnace and placed the burning piece of paper in the bowl. When Jones got to the second floor of the house, he dropped the bowl, causing the fire to spread. According to a fire department report, when questioned immediately after the fire, Jones claimed that he had used matches to light the fire.

Mamie Carpenter testified at her deposition taken on May 13, 1993, that she telephoned Peoples Gas in January of 1990 to cancel gas service at the premises but was advised to keep the gas service throughout the winter so that pipes in the premises would not freeze.

On September 27, 1993, plaintiffs amended their complaint against the Carpenters, naming Peoples Gas as an additional defendant. Plaintiffs alleged that Peoples Gas was negligent in failing to terminate gas service to the vacant building although it had been requested to do so, failing to notify the Carpenters' that the gas had not been shut off and failing to post warnings that the building was dangerous.

The Carpenters and Peoples Gas each moved for summary judgment. Peoples Gas alleged in its motion for summary judgment filed on September 19, 1994, that it owed no duty to plaintiffs since plaintiffs had set the fire themselves and that there was no defect in the gas service. On September 21, 1994, Peoples Gas filed a motion for costs and attorney fees against plaintiffs and the law firm of Benjamin & Shapiro, alleging that plaintiffs' complaint was filed in bad faith because, at the time of the filing, they knew that the allegations in their complaint were untrue. Summary judgment was entered in favor of the Carpenters and Peoples Gas.

After entering summary judgment in Peoples Gas' favor, the court noted that it was "strongly inclined" to grant Peoples Gas' motion for costs and attorney fees based on plaintiffs' bad-faith pleading, but it gave the parties additional time to file supplemental briefs on the issue of sanctions under Supreme Court Rule 137. 134 Ill.2d R. 137. The trial court continued the matter to March 15, 1995, and the matter was later rescheduled for May 5, 1995, for a hearing as to whether to allow sanctions, and if so, the scope of such sanctions.

On March 31, 1995, Benjamin & Shapiro filed a motion for substitution of judge and a motion to clarify the nature of the hearing set for May 5, 1995. On September 13, 1995, the trial court entered an order denying these motions and another order awarding Peoples Gas attorney fees and costs in the amount of $13,028.70. The court specifically found the entire amount requested by Peoples Gas, $21,690.66, to be legitimate but exercised its discretion to reduce the award.

Benjamin & Shapiro claims on appeal that the trial court erred in denying its motion for substitution of judge. The trial court denied Benjamin & Shapiro's motion on the basis that the statute regarding substitution of judge as of right and for cause applies only to civil actions, and this was not a new civil action. The trial court also ruled that the motion for substitution was untimely since the trial court had already made a substantive ruling on the case.

Benjamin & Shapiro first claims that it was entitled to a substitution of judge as a matter of right. 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. Section 2-1001(2) of the Code of Civil Procedure, provides:

"(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 is presented by consent of the parties." 735 ILCS 5/2-1001(2)(West 1994).

A petition for substitution of judge as a matter of right must be brought at the earliest practical moment in order to prohibit a litigant from "judge shopping" after learning that the judge may be unfavorably disposed toward his or her cause. Paschen Contractors, Inc. v. Illinois State Toll Highway Authority, 225 Ill.App.3d 930, 168 Ill.Dec. 902, 590 N.E.2d 539 (1992).

Benjamin & Shapiro relies on Nunes v. Northwest Hospital, 253 Ill.App.3d 337, 192 Ill.Dec. 416, 625 N.E.2d 376 (1993), in support of its claim that its motion to substitute as of right was timely filed. In Nunes, at the conclusion of the underlying malpractice case, Thomas Boyd, an attorney who was neither a party of record nor the attorney of record in the underlying case, filed a request for attorney fees pursuant to the attorney's lien act. Boyd filed a request for substitution of judge immediately upon entry into the case. The court found that Boyd's request was timely filed, since it was in relation to a matter different from the underlying litigation and was filed prior to any hearing or ruling on the supplemental matter of attorney fees.

In the instant case, the law firm of Benjamin & Shapiro was the attorney of record in the underlying case. Furthermore, briefs had been filed and the court had expressed the fact that it was "strongly inclined" to award sanctions prior to Benjamin & Shapiro's request for substitution of judge, thus suggesting that Benjamin & Shapiro filed its request in order to avoid an adverse ruling. Moreover, while in Nunes the request for fees...