Antkiewicz v. Pax/Indianapolis, Inc., 1-92-3519
| Decision Date | 28 September 1993 |
| Docket Number | No. 1-92-3519,1-92-3519 |
| Citation | 627 N.E.2d 185,254 Ill.App.3d 723 |
| Parties | , 194 Ill.Dec. 69 Walter ANTKIEWICZ, Plaintiff-Appellant, v. PAX/INDIANAPOLIS, INC., Henry Farag, Omar Farag, individually, and d/b/a Canterbury Productions, and Electric Brothers of Chicago, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Robert E. Cleveland, Chicago, for plaintiff-appellant.
Wildman, Harrold, Allen & Dixon, Chicago (David A. Kanter, Adam J. Glazer, of counsel), for appellee Pax/Indianapolis.
Plaintiff Walter Antkiewicz, while serving as an independent contractor of defendant Pax/Indianapolis, Inc., (Pax) and defendant Canterbury Productions, a partnership formed by defendants Henry and Omar Farag, suffered personal injuries and property damage after some electrical equipment being installed by defendant Electric Brothers of Chicago broke loose from its moorings and struck plaintiff. Plaintiff's injuries were incurred on August 15, 1987, while he was rehearsing for a musical production to be sponsored by Pax. He originally filed suit sometime in 1989 in the circuit court of Cook County, alleging that defendants were either directly liable for his injuries because of their own negligence, or else were vicariously liable for the negligence of another acting in their interest. This action was later dismissed without prejudice for want of prosecution on April 25, 1991, based on defendants' Rule 219(c) (107 Ill.2d R. 219(c)) motion for sanctions.
Plaintiff refiled his action on August 2, 1991, reasserting the claims brought in the first complaint. Defendants Canterbury Productions and the Farag brothers filed a special and limited appearance and contested, by a motion to quash service, the jurisdiction of the court over their persons. Plaintiff responded by filing a motion to strike that motion, and by the same filing, sought Rule 137 (134 Ill.2d R. 137) sanctions. While the motion to quash service was pending, plaintiff sought a default judgment against Pax, which was denied. The circuit court judge, on whose calendar the instant action had been placed, thereafter granted leave to Pax to respond to plaintiff's complaint and denied the motion to quash apparently because it found that Canterbury and the Farags were not properly served. By the same order, the circuit court denied plaintiff's motions to strike the motion to quash and also refused his request for Rule 137 sanctions.
On January 10, 1992, Pax answered the complaint and served interrogatories upon plaintiff. When no responses to the interrogatories were forthcoming as of March 6, 1992, Pax moved the court, pursuant to Supreme Court Rule 219(c) (134 Ill.2d R. 219(c)), to dismiss the action as a sanction for plaintiff's failure to comply. In its motion, Pax indicated that it had made repeated attempts to reach a compromise with plaintiff regarding the outstanding interrogatories, as required by Supreme Court Rule 201(k) ( 134 Ill.2d R. 201(k)), but to no avail. It also pointed out that plaintiff had been admonished by the court on February 5, 1992, to file his answers as soon as practicable.
In response to this motion, plaintiff again moved for default judgment against defendants Canterbury Productions and the Farag brothers, despite the court's earlier determination that none had been made a party to the suit. He further moved to strike Pax's motion to dismiss, contending that it was "spurious and frivolous on its face," and reasserted his right to sanctions under Rule 137. The court declined to grant plaintiff a default judgment, ordered him to answer the propounded interrogatories by May 15, 1992, continued Pax's motion to dismiss and denied plaintiff's motion for Rule 137 sanctions.
Soon thereafter, on May 11, 1992, plaintiff petitioned the court for a change of venue as of right, alleging that the judge before whom the action was pending was prejudiced against him. At a hearing on the matter, after being reminded by defense counsel of the rulings she had already rendered in the cause, the court denied the petition as untimely. The next day, plaintiff filed a second petition for a change of venue, this time for cause, alleging that the trial judge's bias against him stemmed from the fact that his counsel had registered a complaint against her with the Judicial Inquiry Board for her allegedly wrongful conduct in an unrelated matter in which plaintiff's counsel was a party. This petition was transferred to another judge, who determined, after a hearing, that its allegations were baseless.
The action was retransferred to the judge whom plaintiff had alleged to be biased, after which plaintiff filed a motion asking for her voluntary recusal, which she denied. Pax reasserted its prior motion to dismiss, once again alleging that plaintiff had failed to obey the court's order to respond to its interrogatories. On July 9, 1991, the court again mandated plaintiff's compliance, instructing him to provide legible and complete responses within seven days. Later, at Pax's request, the circuit court ordered plaintiff to provide certain supplemental responses requested by Pax, outlining with specificity those answers which plaintiff was to enlarge.
When this order went unheeded by plaintiff, Pax again moved for dismissal pursuant to Rule 219(c). A hearing on this motion was set to be held on September 18, 1992, and notice thereof was served on plaintiff's counsel. Although properly advised, plaintiff's counsel was detained in another county on the day of the hearing and, as a result, an associate of his appeared and expressed complete unfamiliarity with the substance of the case and an inability to argue the motion. He requested 28 days to respond to Pax's motion and the setting of a briefing schedule thereon. The court denied the request, informing counsel that plaintiff's previous conduct had precipitated four court orders in a futile effort to secure his cooperation with discovery. Accordingly, the court granted Pax's motion and entered judgment in its favor, dismissing plaintiff's complaint with prejudice. On October 7, 1992, plaintiff filed this appeal.
Plaintiff first argues that the trial court was obligated by section 2-1001 of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-1001) to grant his petition for a change of venue as a matter of right, and that as a result of its erroneous failure to do so, all of its subsequent orders, including the Rule 219(c) sanction of dismissal, were void. Thus, he concludes, the judgment entered on that sanction must be reversed and the action remanded for trial before a new judge.
Section 2-1001 provides in pertinent part:
"(a) A change of venue in any civil action may be had in the following situations:
* * * * * *
(2) Where any party or his attorney fears that he or she will not receive a fair trial in the court in which the action is pending, because the * * * judge is prejudiced against him or her, or his or her attorney, * * *. In * * * such [a] situation, the venue shall not be changed except upon application * * *." (Ill.Rev.Stat.1991, ch. 110, par. 2-1001.)
Section 2-1001 entitles, without exception, each litigant to one change of venue as of right, if a request for one is brought in a timely fashion. (In re Marriage of Kozloff (1984), 101 Ill.2d 526, 79 Ill.Dec. 165, 463 N.E.2d 719; Hader v. St. Louis Southwestern Ry. Co. (1991), 207 Ill.App.3d 1001, 152 Ill.Dec. 859, 566 N.E.2d 736, appeal denied, (1991), 139 Ill.2d 595, 159 Ill.Dec. 107, 575 N.E.2d 914.) A petition will be deemed timely 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 * * *." (Ill.Rev.Stat.1991, ch. 110, par. 2-1001(c); see also Raabe v. Maushak (1977), 55 Ill.App.3d 169, 13 Ill.Dec. 401, 371 N.E.2d 96.) The imposition of the timely petition rule is intended "to prohibit a litigant from seeking a change of venue only after he has formed an opinion, based upon the court's adverse rulings, that the judge may be unfavorably disposed toward his case." Hader, 207 Ill.App.3d at 1007, 152 Ill.Dec. at 862-63, 566 N.E.2d at 739-40; accord Becker v. R.E. Cooper Corp. (1990), 193 Ill.App.3d 459, 462, 140 Ill.Dec. 600, 602, 550 N.E.2d 236, 238 ().
Plaintiff baldly asserts, without analysis, argument or citation, that the original trial judge had made no substantive rulings prior to the filing of his section 2-1001 petition, and that thus, the court was bound to grant it. Although no court has fixed a precise moment in the conduct of a trial which indisputably demarcates when the trial court's rulings will address "substantial issues" from that point forward, it is generally agreed that the point is reached when its order is relevant to a resolution of the merits of the action. See 3 Richard A. Michael, Illinois Practice, Civil Procedure Before Trial, § 13.3 at 155 (1989) () ("Where a prior ruling involved a determination of an issue relevant to the merits, a motion for a change of venue has been held to be too late.").
In the instant case, before May 11, 1992, when plaintiff first brought his petition for a change of venue, the trial court had handed down the following orders: (1) on November 22, 1991, she granted Pax 21 days to make an appearance or otherwise respond to plaintiff's complaint; (2) set a date for hearing the motion to quash service brought by defendants Canterbury Production and the Farags; (3) on January 3, 1992, the court denied that motion to quash service, denied plaintiff's motion for default judgment, and ordered Pax to respond to the complaint; (4) the court denied plaintiff's renewed motion for default on April 28, 1992; and (5) on May 8, 1992,...
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