Powell v. Dean Foods Co.

• Decision Date: 06 December 2010
• Docket Number: Nos. 1-08-2513, 1-08-2554.,s. 1-08-2513, 1-08-2554.
• Citation: 405 Ill.App.3d 354,344 Ill.Dec. 901,938 N.E.2d 170
• Parties: Tracey POWELL, Individually and as Special Administrator of the Estate of Adam McDonald, Deceased, George Kakidas, Individually and as Special Administrator of the Estate of Diana Kakidas, Deceased, and Alexander Chakonas, as Special Administrator of the Estate of Christina Chakonas, Deceased, Plaintiffs-Appellees, v. DEAN FOODS COMPANY, Alco of Wisconsin, Inc., Alder Group, Inc., and Jaime L. Reeves, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

938 N.E.2d 170

405 Ill.App.3d 354

344 Ill.Dec. 901

Tracey POWELL, Individually and as Special Administrator of the Estate of Adam McDonald, Deceased, George Kakidas, Individually and as Special Administrator of the Estate of Diana Kakidas, Deceased, and Alexander Chakonas, as Special Administrator of the Estate of Christina Chakonas, Deceased, Plaintiffs-Appellees,

v.DEAN FOODS COMPANY, Alco of Wisconsin, Inc., Alder Group, Inc., and Jaime L. Reeves, Defendants-Appellants.

Nos. 1-08-2513, 1-08-2554.

Appellate Court of Illinois, First District, Sixth Division.

Sept. 10, 2010.

Rehearing Denied Dec. 6, 2010.

Michael W. Rathsack, Chicago (Michael K. Muldoon, John J. Muldoon, III, and Michael W. Rathsack, of counsel), for Plaintiff-Appellee Alexander Chakonas.

William J. Harte, Ltd., and The Healy Law Firm, Chicago (Martin J. Healy, Jr., David P. Huber, Dennis M. Lynch, William J. Harte, and Joan M. Mannix, of counsel), for Plaintiffs-Appellees Tracey Powell and George Kakidas.

James K. Horstmann and Ronald L. Wisniewski, Cray Huber Horstmann Heil & VanAusdal LLC, Chicago, for Defendants-Appellants Alco of Wisconsin, Inc., Alder Group, Inc., and Jaime L. Reeves.

Hugh C. Griffin and Stevie A. Starnes, Hall Prangle & Schoonveld, LLC, Chicago, for Defendants-Appellants Dean Foods Company.

Justice McBRIDE delivered the opinion of the court:

[344 Ill.Dec. 903, 405 Ill.App.3d 355]

In July 2002, Adam McDonald, Diana Kakidas and Christina Chakonas were killed when a tractor-trailer driven by Jaime L. Reeves struck their vehicle in an intersection near Wanatah, Indiana. Plaintiffs, Tracey Powell, individually and as special administrator of the estate of Adam McDonald, deceased; George Kakidas, individually and as special administrator of the estate of Diana Kakidas, deceased; and Alexander Chakonas, as special administrator of the estate of Christina Chakonas, deceased, filed wrongful death actions against defendants Reeves; Dean Foods Company (Dean Foods), the owner of the trailer; Alco of Wisconsin, Inc. (Alco Wisconsin), Reeves' employer; and Alder Group, Inc. (Alder Group), owner of the tractor. Following a trial, the jury returned a verdict in favor of plaintiffs, finding defendants jointly and severally liable, and awarded $8 million to the McDonald estate, $8 million to the Kakidas estate, and $7 million to the Chakonas estate. In a special interrogatory, the jury also found that Christina Chakonas was 40% contributorily negligent in causing the collision and reduced the award to the Chakonas estate accordingly to $4.2 million.

All defendants appeal. While defendants have raised multiple issues on appeal, our review turns on the consideration of one issue: whether the trial court erred in denying Alder Group's motion for a substitution of judge as a matter of right pursuant to section 2-1001(a)(2) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1001(a)(2) (West 2006)).

We recite only those facts necessary for our disposition of this appeal.

On July 6, 2002, Adam McDonald and Diana Kakidas were passengers in a 2002 Pontiac Grand Am automobile driven by Christina Chakonas. All three occupants of the Chakonas vehicle were killed when a Dean Foods tractor-trailer driven by defendant Jaime L. Reeves collided with the Chakonas vehicle. The tractor-trailer collided with the Chakonas vehicle as the Chakonas vehicle crossed the eastbound lanes of traffic on Route 30, in the process of turning left into the westbound lanes of Route 30, at the intersection of Route 30 and Lincoln Street in Wanatah, Indiana.

Two actions were filed in the circuit court of Cook County as a result of the fatal collision. In December 2003, plaintiff Chakonas filed his original complaint in the law division of the circuit court of CookCounty. That complaint, assigned case No. 03 L 15077, named Reeves; Alco, Inc.; Alco of Wisconsin, Inc., d/b/a/ Robert Alder & Sons; and Dean Foods as defendants. In July 2004, plaintiff Chakonas filed an amended complaint, naming Reeves; Alco, Inc.; Alco Wisconsin; Dean Foods; and Dean Illinois Dairies, LLC (Dean Illinois), as defendants. Also in December 2003, plaintiffs Powell and Kakidas filed their original complaint, assigned case No. 03 L 16261, naming only Reeves and Dean Foods as defendants. In July 2004, plaintiffs Powell and Kakidas filed an amended complaint, naming Reeves; Alco, Inc.; Alder Group; and Dean Illinois Dairies, LLC, as defendants. In August 2004, plaintiff Chakonas filed a motion to consolidate, seeking to consolidate the Chakonas and Powell/Kakidas actions, which the trial court granted in September 2004, and case No. 03 L 16261 was consolidated into case No. 03 L 15077.

In August 2007, after discovery was completed, an order was entered setting the consolidated case for trial on October 11, 2007. At the time the case was set for trial, the caption of the consolidated cases named the following as defendants:

[344 Ill.Dec. 904, 938 N.E.2d 173]

Reeves, Alco, Inc., Alco Wisconsin, Dean Foods, Dean Illinois and Alder Group

On October 11, 2007, the following defendants individually exercised their right to substitute judge as a matter of right pursuant to section 2-1001(a)(2) of the Code: Dean Illinois, Alco Wisconsin, Dean Foods and Alco, Inc. On October 12, 2007, plaintiffs filed a combined motion seeking reconsideration of Judge Banks' order granting "Alco, Inc.'s" motion for substitution of judge. The trial court conducted a hearing on the motion the same day.

Plaintiffs moved to vacate the order granting "Alco, Inc.'s" motion for substitution of judge as a matter of right, arguing that "Alco of Wisconsin, Inc.," and "Alco, Inc.," were alternative names for the same party, and Alco Wisconsin had already exercised its right to substitute judge as a matter of right pursuant to section 2-1001(a)(2) of the Code. Counsel for Alco Wisconsin, who also represented Reeves and Alder Group, conceded at the hearing on plaintiffs' motion to reconsider that "Alco, Inc.," and "Alco of Wisconsin, Inc.," were alternative names for the same party. Counsel also agreed that the October 11, 2007, order granting the motion to take a substitution of judge as a matter of right from Judge Banks should be vacated. At the same time, said counsel presented a written motion for substitution of judge as a matter of right on behalf of Alder Group to the trial court.

The following discussion took place at that hearing:

"MR. MULDOON [Chakonas attorney]: In both our initial complaint and amended complaint, we named as defendant a corporation called Alco, Inc. We also named a defendant by thename of Alco of Wisconsin. Okay. As it turns out, Your Honor, Alco, Inc., is a former name of Alco of Wisconsin, Inc. They had a name change back in 1989.

* * *

MR. O'NEILL [Alco Wisconsin, Reeves and Alder Group attorney]: Judge, Mr. Muldoon is right. Alco, Inc. was sued, and they filed an appearance. In an amended complaint they were dropped as a party. And, therefore, when I presented the motion yesterday, it was an inadvertence on my part. And what I would respectfully ask is that your order be rescinded or whatever you have to do; but I would present a motion now on behalf of Alder Group, Inc., for substitution of judge, and we move on from there.

THE COURT: I was wondering whether you had another one.

MR. HEALY: Your Honor, I think it probably should be done in series. The Court ruled on our motion to reconsider, and then it raises some other issues then.

THE COURT: I'm going to grant [the] motion to reconsider.

MR. HEALY: Thank you.

THE COURT: Counsel has conceded that Alco, Inc., and Alco of Wisconsin are one and the same. So, therefore, he's not entitled to a substitution of right for Alco of Wisconsin."

After the trial court granted the motion to reconsider, plaintiffs argued that this order constituted a ruling on a "substantial issue in the case" within the meaning of section 2-1001(a)(2) of the Code, and therefore, Alder Group had no right to seek a substitution of judge as a matter of right under the statute. Counsel for Alder Group contended that the trial court's granting of plaintiffs' motion to reconsider did not constitute a "substantial ruling."

The trial court ordered briefing from the parties and held a hearing on the issue

[344 Ill.Dec. 905, 938 N.E.2d 174]

that afternoon. After hearing argument from the parties, the trial court denied Alder Group's motion for substitution of judge as a matter of right based upon "the fact that the Court is of the opinion that it did make a substantial ruling on a substantial issue."

As noted, the consolidated cases proceeded to trial, and the jury returned a verdict in favor of plaintiffs and against defendants, finding Reeves negligent in causing the fatal July 6, 2002, motor vehicle collision and Dean Foods, Alco Wisconsin, and Alder Group vicariously liable for Reeves' negligence. The jury found defendant jointly and severally liable, and awarded $8 million to the McDonald estate, $8 million to the Kakidas estate, and $7 million to the Chakonas estate. The jury then reduced the award to the Chakonas estate to $4.2 million after determining that Christina Chakonas was 40% contributorily negligent in causing the fatal collision.

Judgment was entered on the verdict, and all of defendants' posttrial motions were denied; however, the trial court reduced the judgments in favor of the McDonald estate and the Kakidas estate by $550,000, as a setoff of money which they had received in settlement from the Chakonas estate. Specifically, the trial court denied defendants' motions for a new trial in part based upon the trial court's denial of Alder Group's October 12, 2007, motion for substitution of judge as a matter of right and offered several reasons for that denial. In particular, the trial court determined that it properly denied Alder Group's motion for substitution of judge because: (1) Alder Group had enjoyed an opportunity to "test the waters" and form an opinion as to the trial court...