Johnson v. Valspar Corp.

• Decision Date: 06 October 1993
• Docket Number: No. 2-92-1337,2-92-1337
• Parties: , 190 Ill.Dec. 546 Marvin JOHNSON, Indiv. and as Special Adm'r of the Estate of Violet Johnson, Deceased et al., Petitioners-Appellants, v. The VALSPAR CORPORATION, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 999

621 N.E.2d 999

251 Ill.App.3d 564, 190 Ill.Dec. 546

Marvin JOHNSON, Indiv. and as Special Adm'r of the Estate of Violet Johnson, Deceased et al., Petitioners-Appellants, v. The VALSPAR CORPORATION, Respondent-Appellee.

No. 2-92-1337.

Appellate Court of Illinois,

Second District.

Oct. 6, 1993.

Eugene R. Pigatti (argued), Rockford, Leo G. Stern (argued), Fredrikson & Byron, P.A., Minneapolis, MN, Robert J. Oliver, Oliver, Close & Worden, Rockford, for Valspar Corp., Walter Tipton.

Justice BOWMAN delivered the opinion of the court:

Petitioners, Marvin Johnson, individually and as special administrator for the estate of Violet Johnson, Fred Johnson, and Donald Johnson, appeal from a series of orders entered by the circuit court of Winnebago County which culminated in the denial of their petition to be reinstated as plaintiffs in a lawsuit against respondent, Valspar Corporation. Petitioners assert the trial court erred in denying their requests for a change of venue and a jury trial and that the court's findings on their petition for reinstatement were against the manifest weight of the evidence. We affirm.

The parties appear before this court for the third time. This lawsuit was originally filed in 1972 against Valspar and other defendants. The petitioners, along with Marvin Johnson's two daughters, Elizabeth and Rebecca, were the plaintiffs. All the plaintiffs claimed they were injured in their health and property as a result of contamination of their farmland and water supply. They alleged that the contamination came from manufacturing wastes which Valspar stored on an adjoining farm occupied by another defendant, Walter Tipton. Finding that their cause of action was time barred, the trial court dismissed Elizabeth and Rebecca as party plaintiffs. A trial was held in May 1980 regarding the remaining plaintiffs, and the jury returned a verdict in favor of Valspar. All plaintiffs appealed to this court. We affirmed the verdict as to the petitioners. With regard to Elizabeth and Rebecca, however, we reversed the trial court's finding that their cause was time barred and remanded the matter back to the trial court. (Johnson v. Tipton (1982), 103 Ill.App.3d 291, 59 Ill.Dec. 179, 431 N.E.2d 464.) The daughters continued their suit at the trial level under a caption reflecting their then current surnames: Elizabeth Schoen & Rebecca Hampton v. The Valspar Corp. et al. (Cir.Ct. Winnebago Co.), No. 72-L-3454.

Almost nine years later, in February 1989, petitioners filed a motion seeking to be reinstated as party plaintiffs in the daughters' continuing action against Valspar. In an addendum to the motion they indicated they sought relief pursuant to section 2-1401 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1987, ch. 110, par. 2-1401 (now 735 ILCS 5/2-1401 (West 1992))). Petitioners alleged that Valspar had fraudulently concealed relevant evidence during the course of the litigation which culminated in the May 1980 trial and that such evidence, had it been available, would have resulted in a different trial outcome. Although the trial court did not hold a hearing on the motion, in February 1990 it found that Valspar had not fraudulently concealed the information and documents not received by the petitioners, that the materials not received were merely cumulative to the evidence presented at the trial, and that the jury had the evidence before them when deciding the same issues. Accordingly, the trial court denied the petition and found there was no just reason to delay appeal of the issue. (See 134 Ill.2d R. 304(a).) We reversed and remanded the case for an evidentiary hearing on the matter of fraudulent concealment. Johnson v. Valspar (1991), 207 Ill.App.3d 1112, 178 Ill.Dec. 328, 604 N.E.2d 584 (unpublished order under Supreme Court Rule 23).

Upon remand, the trial court first denied petitioners' motion for a change of venue and granted Valspar's motion to strike petitioners' jury demand. Upon completion of the hearing, which was held on October 21 and 22, 1991, February 3 and 4 and March 17, 1992, the trial court again found Valspar not guilty of fraudulent concealment and denied the motion to reinstate. After their post-trial motion was also denied, petitioners brought this appeal.

Petitioners make a preliminary argument that the trial court should have granted their motion for change of venue as a matter of right. The motion was made immediately following remand and alleged prejudice on the part of the trial judge. There is an absolute right to a change of venue where a motion alleging prejudice of the judge is filed before trial or hearing and before the judge hearing the motion has made any substantial ruling (Ill.Rev.Stat.1987, ch. 110, pars. 2-1001(a)(2), (c) (now 735 ILCS 5/2-1001(a)(2), (c) (West 1992)); In re Marriage of Kozloff (1984), 101 Ill.2d 526, 530, 79 Ill.Dec. 165, 463 N.E.2d 719), but such a motion is untimely if made after a ruling on a substantive matter (In re Marriage of Smoller (1991) 218 Ill.App.3d 340, 346, 161 Ill.Dec. 129, 578 N.E.2d 256). Petitioners do not dispute that the trial court's denial of their petition for reinstatement was a substantive ruling. They insist, however, that after reversal the trial court's earlier rulings had no effect since a reversal abrogates the judgment reversed. Petitioners conclude that, upon remand, no substantive rulings had been entered and they were, therefore, entitled to the change they sought as a matter of right. Petitioners' argument cannot be sustained.

In Schlenz v. Castle (1985), 132 Ill.App.3d 993, 87 Ill.Dec. 571, 477 N.E.2d 697, this court held that a motion for change of venue was not timely when it was filed after remand from the supreme court following an interlocutory appeal of a finding that the cause could not proceed as a class action. We stated that the cause in Schlenz was not a " 'new' proceeding, but a continuation of the proceeding." (Schlenz, 132 Ill.App.3d at 1015, 87 Ill.Dec. 571, 477 N.E.2d 697.) In support of our conclusion we cited In re Dependency of Bartha (1969), 107 Ill.App.2d 214, 245 N.E.2d 779, also a second district case, where the cause was remanded because the trial court order did not contain the findings of fact necessary to allow review. In a subsequent appeal we could not conclude, as urged by the respondent, that the proceedings following remand were new in nature and therefore required that a motion for change of venue be granted. We held in Bartha that the trial court did not err in denying the motion.

We also cited in Schlenz, for purposes of comparison, to Millburn Mutual Insurance Co. v. Glaze (1980), 86 Ill.App.3d 1055, 43 Ill.Dec. 295, 410 N.E.2d 295, where it was argued to this court that a motion for change of venue, filed before the commencement of a retrial (following a declaration of mistrial) and before the entry of rulings on issues pertaining to the second trial, was timely and should have been granted as a matter of right. We affirmed the trial court's denial of the motion, observing that, although the force and effect of a court's prior rulings are vitiated by an order granting a mistrial, the rulings are not ignored in applying the provisions of the venue statute if they are substantial rulings.

Based on our own precedent, we conclude that petitioners' motion for change of venue was properly denied. As we did in Bartha and Schlenz, we find that the proceedings following remand in this case were not new, but merely a continuation of all that had previously transpired in the trial court. In addition, if the court's prior rulings are effective for purposes of determining matters of venue prior to a complete retrial, as in Schlenz, we certainly think such rulings should be effective for the same purpose when a cause is merely remanded for an evidentiary hearing.

Petitioners' reliance on United Nuclear Corp. v. Energy Conversion Devices, Inc. (1982), 110 Ill.App.3d 88, 65 Ill.Dec. 649, 441 N.E.2d 1163, is misplaced. After explaining that the trial court had denied the plaintiff's motion for change of venue because it had made a substantive ruling, the United court remarked:

"Upon remand of the present case, however, the trial court's rulings will have no effect since a reversal abrogates the judgment or decree reversed and leaves the case as it stood prior to the entry thereof. [Citations.] Thus, no substantive rulings will have been entered, and either party may at that point apply for a change of venue." (United, 110 Ill.App.3d at 112, 65 Ill.Dec. 649, 441 N.E.2d 1163.)

However, the court's remarks occurred in dicta, not as a holding. Before addressing the venue issue the court stated: "As the foregoing discussion indicates, it is unnecessary for us to determine if the trial court erred in denying United's motions for change of venue." (United, 110 Ill.App.3d at 111, 65 Ill.Dec. 649, 441 N.E.2d 1163.) Even more significantly, the authority cited by the United court provides no support for its comments. The court cited Willett Co. v. Carpentier (1954), 4 Ill.2d 407, 123 N.E.2d 308, People ex rel. Scott v. Police Hall of Fame, Inc. (1979), 69 Ill.App.3d 501, 26 Ill.Dec. 26, 387 N.E.2d 856, and Loy v. Booth (1974), 16 Ill.App.3d 1077, 307 N.E.2d 414. None of these cases raises an issue concerning the propriety of a motion for change of venue following remand. While all of them contain language setting forth the general proposition that when a judgment or order is reversed the effect is to abrogate the judgment or order and leave the case as it stood prior to entry of such order, none of them applies the principle to allow a motion for change of venue following remand. On the contrary, the principle is invoked in Willett and Loy to prevent a party from benefiting unjustly from a judgment subsequently reversed. In Scott it is applied to determine that, when an underlying judgment is reversed, supplementary proceedings to collect the judgment must also fail. P...