Inland Commercial Prop. Mgmt., Inc. v. Hob I Holding Corp.

• Decision Date: 28 April 2015
• Docket Number: 1–14–2032.,Nos. 1–14–1051,s. 1–14–1051
• Citation: 31 N.E.3d 795
• Parties: INLAND COMMERCIAL PROPERTY MANAGEMENT, INC., Plaintiff–Appellee, v. HOB I HOLDING CORPORATION and the Eva Buziecki Trust, Dated July 12, 2006, Respondents–Appellants (The House of Brides, Inc., and House of Brides World's Largest “On–Line” Wedding Store, Inc., Intervenors–Appellants; HOB Holding Corporation, d/b/a House of Brides, Illinois, Defendant).
• Court: United States Appellate Court of Illinois

31 N.E.3d 795

INLAND COMMERCIAL PROPERTY MANAGEMENT, INC., Plaintiff–Appellee

v.HOB I HOLDING CORPORATION and the Eva Buziecki Trust, Dated July 12, 2006, Respondents–Appellants (The House of Brides, Inc., and House of Brides World's Largest “On–Line” Wedding Store, Inc., Intervenors–Appellants; HOB Holding Corporation, d/b/a House of Brides, Illinois, Defendant).

Nos. 1–14–1051

1–14–2032.

Appellate Court of Illinois, First District, Second Division.

April 28, 2015.

Rathje & Woodward LLC, of Wheaton (Kevin M. Carrarra and Derek M. Johnson, of counsel), for appellants.

No brief filed for appellee.

OPINION

Justice LIU delivered the judgment of the court, with opinion.

¶ 1 There are four appellants in this consolidated appeal involving two orders entered by the circuit court of Cook County during postjudgment proceedings. HOB I Holding Corporation (HOBI) and the Eva Buziecki Trust, dated July 12, 2006 (the Trust), appeal from an order denying their respective motions for substitution of judge as a matter of right (first appeal). HOBI and the Trust, together with The House of Brides, Inc., and House of Brides World's Largest “On–Line” Wedding Store, Inc., appeal from an order denying a motion to stay proceedings pending resolution of the appeal of the order denying substitution of judge (second appeal). For the following reasons, we dismiss the first appeal for lack of jurisdiction and the second appeal for mootness.

¶ 2 BACKGROUND

¶ 3 On March 1, 2012, plaintiff, Inland Commercial Property Management, Inc., filed a forcible entry and detainer complaint against defendant, HOB Holding Corporation, d/b/a House of Brides, Illinois (HOB).¹ The circuit court entered an order of possession and judgment on July 26, 2012 against HOB in favor of plaintiff.

¶ 4 Following the entry of judgment, plaintiff commenced supplementary proceedings to enforce the judgment and issued citations to discover assets to various third parties, beginning in late 2012 and ending in early 2013. HOBI and the Trust were named as respondents to these citations. The House of Brides, Inc., and House of Brides World's Largest “On–Line” Wedding Store, Inc. (collectively, Intervenors), subsequently intervened in the postjudgment action.

¶ 5 On June 6, 2013, counsel for HOBI filed its appearance and a motion for substitution of judge as a matter of right pursuant to section 2–1001(a)(2) of the Code of Civil Procedure (Code) (735 ILCS 5/2–1001(a)(2) (West 2012)). The circuit court later entered and continued all motions, including the motion for substitution of judge, until July 8, 2013, for status on the administrative assignment of a new judge to the case. Notwithstanding the continuance, the parties completed briefing on the motion.

¶ 6 At the status hearing on July 8, 2013, the parties appeared before the new judge assigned to the matter. HOBI withdrew its motion for substitution and the court entered an order memorializing the withdrawal and entering and continuing all other motions. Subsequently, counsel for HOBI also filed its appearance on behalf of the Trust. The court ordered all parties to complete any and all discovery and to file any and all written motions by August 16, 2013.

¶ 7 On March 20, 2014, the original judge was reassigned to the case, and HOBI renewed its motion for substitution of judge that same day. Because the parties had already fully briefed the matter, a hearing on the motion was set for March 27, 2014.

¶ 8 Following a hearing, the circuit court denied HOBI's motion for substitution of judge, stating:

“Based on my careful reading of these briefs and an understanding of the issues in this case, at this time I find that the defendant is the principal in all of these subsidiaries. I agree with the argument made by Inland pursuant to City of Granite v. House of Prayers that a motion for substitution of judge may be untimely if the moving party had an opportunity to form an opinion of the court's reaction to his or her claim.

In this case, where one principal is, in fact, the primary agent of all of these parties and has extensive involvement in this litigation as outlined in Inland's motion, the motion is respectfully denied.”

Following its ruling on HOBI's motion, the circuit court allowed the Trust to make an oral motion for substitution of judge. This motion was also denied.

¶ 9 In its March 27, 2014 order denying both HOBI's and the Trust's motions for substitution of judge, the court entered a Rule 304(a) finding that “there is no just reason for delaying enforcement or appeal of this order pursuant to Ill. Sup. Court Rule 304(a).” Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010).

¶ 10 On April 11, 2014, HOBI and the Trust, collectively, filed a notice of appeal (No. 1–141051) from the order denying their respective substitution motions.

¶ 11 The Intervenors, represented in the supplementary proceedings by the same counsel that represents HOBI and the Trust, subsequently filed a motion to stay all proceedings pending the appeal of the order denying the motions for substitution of judge. This motion was denied on July 2, 2014.

¶ 12 On July 9, 2014, HOBI, the Trust, and the Intervenors filed a notice of appeal (No. 1–142032) challenging the court's order denying the requested stay of proceedings pending resolution of the substitution order that is the subject of the first appeal.

¶ 13 ANALYSIS

¶ 14 We note that on January 12, 2015, plaintiff filed a motion to dismiss the appeals for a violation of Illinois Supreme Court Rule 326 (eff. Feb. 1, 1994) and lack of jurisdiction. This motion was denied on February 6, 2015. Because the order failed to explain whether the denial was based on Rule 326, lack of jurisdiction, or both, we are obligated to review our jurisdictional authority as a threshold issue. See Palmolive Tower Condominiums, LLC v. Simon, 409 Ill.App.3d 539, 542, 350 Ill.Dec. 931, 949 N.E.2d 723 (2011) (noting the “independent duty” of reviewing courts to consider the jurisdictional authority and dismiss the appeal where it is lacking, regardless of whether any of the parties have raised the issue). We consolidated the appeals. For the sake of clarity, however, we will address the pertinent issues in each of the underlying appeals separately.

¶ 15 A. Appeal No. 1–14–1051 (First Appeal)

¶ 16 Section 2–1001 of the Code (735 ILCS 5/2–1001 (West 2012) ) sets forth the circumstances under which a party may move for substitution of judge as a matter of right. We review de novo the question of the denial of a motion for substitution of judge. Bank of America, N.A. v. Freed, 2012 IL App (1st) 110749, ¶ 11, 368 Ill.Dec. 96, 983 N.E.2d 509.

¶ 17 Before we can review the order denying the motion for substitution of judge, however, we must first determine whether this court has jurisdiction. Our jurisdiction is limited to the review of appeals from final judgments, unless otherwise permitted under the Illinois Supreme Court rules or by statute. In re Marriage of Verdung, 126 Ill.2d 542, 553, 129 Ill.Dec. 53, 535 N.E.2d 818 (1989) ; see also Puleo v. McGladrey & Pullen, 315 Ill.App.3d 1041, 1043, 249 Ill.Dec. 106, 735 N.E.2d 710 (2000) (“Appellate jurisdiction is restricted to reviewing final judgments unless the order to be reviewed comes within one of the exceptions for interlocutory orders specified by our supreme court.”). A reviewing court must ascertain its jurisdiction before proceeding in a cause of action, and this duty exists regardless of whether either party has raised the issue. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill.2d 209, 213, 327 Ill.Dec. 541, 902 N.E.2d 662 (2009).

¶ 18 “ ‘An order is final and appealable if it terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate part thereof.’ ” In re Marriage of Gutman, 232 Ill.2d 145, 151, 327 Ill.Dec. 510, 902 N.E.2d 631 (2008) (quoting R.W. Dunteman Co. v. C/G Enterprises, Inc.,

181 Ill.2d 153, 159, 229 Ill.Dec. 533, 692 N.E.2d 306 (1998) ). A judgment is final if it “fixes absolutely and finally the rights of the parties in the lawsuit * * * [and] determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment.” In re Parentage of Rogan M., 2014 IL App (1st) 132765, ¶ 9, 379 Ill.Dec. 817.

¶ 19 The denial of a motion for substitution of judge for cause is not a final order. In re Marriage of Nettleton, 348 Ill.App.3d 961, 969, 285 Ill.Dec. 19, 811 N.E.2d 260 (2004). Instead, it is an interlocutory order that is appealable on review from a final order. Id.

¶ 20 Here, the order denying substitution of the judge, as a preliminary order in a pending suit, did not result in a determination of any of the merits of the postjudgment proceedings, nor did it resolve “absolutely and finally” any rights of the movants, HOBI and the Trust, or plaintiff. If anything, the motions for substitution were asserted as a preliminary measure intended to prevent any determination on the substantive merits by the particular trial judge against whom the motions were directed.

¶ 21 In the notice of appeal dated April 11, 2014, HOBI and the Trust requested review of the order denying their motions for substitution of judge “[p]ursuant to Illinois Supreme Court Rules 304(a) and 304(b)(4).” We find that jurisdiction is not conferred by either of these rules. The construction of these supreme court rules presents a question of law subject to de novo review. Marriage of Nettleton, 348 Ill.App.3d at 968, 285 Ill.Dec. 19, 811 N.E.2d 260.

¶ 22 1. Rule 304(a)

¶ 23 Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) provides that “an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims * * * if the trial court has made an express written finding that there is no just reason for delaying * * * appeal.” (Emphasis added.) In other words, Rule 304(a) language must be included in the order...