Becker v. R.E. Cooper Corp.

550 N.E.2d 236, 193 Ill. App. 3d 459, 140 Ill. Dec. 600, 1990 Ill. App. LEXIS 58
CourtAppellate Court of Illinois
DecidedJanuary 18, 1990
Docket3-89-0019
StatusPublished
Cited by18 cases

This text of 550 N.E.2d 236 (Becker v. R.E. Cooper Corp.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Becker v. R.E. Cooper Corp., 550 N.E.2d 236, 193 Ill. App. 3d 459, 140 Ill. Dec. 600, 1990 Ill. App. LEXIS 58 (Ill. Ct. App. 1990).

Opinion

JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from consolidated personal injury cases brought by plaintiffs-appellees, Jeaneen Becker and Donna Planner against, inter alia, defendant-appellant, R.E. Cooper Corporation (Cooper), and defendants-appellees, Eaton Corporation (Eaton) and the Kankakee Lift Truck, Incorporated. At the conclusion of the trial, the jury rendered verdicts in favor of plaintiffs-appellees and against defendant-appellant Cooper and defendant-appellee Kankakee Lift Truck. The jury also returned a verdict in favor of defendant-appellee Eaton Corporation. Following the arguments presented at the hearing on Kankakee Lift Truck’s post-trial motion, Kankakee Lift Truck and the plaintiffs-appellees agreed to a settlement of that portion of the verdict affecting Kankakee Lift Truck. Cooper brought the instant appeal.

Cooper raises several issues on appeal. However, since we find the trial court erred in denying Cooper’s motion for a change of venue, we need only state those facts necessary to reach such decision. On March 11, 1988, this case appeared on the mandatory trial status call to determine readiness for trial on March 14. On March 14, Judge Ewert continued the case until March 16. On March 16, the case was called and assigned to Judge Michael Lyons for trial. At that point, Cooper made a motion for a change of judge pursuant to the venue provisions set forth in section 2 — 1001 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001). Cooper predicated its petition for a change of venue on the alleged prejudice of Judge Lyons against Cooper. No other party joined Cooper in its motion for change of venue. After hearing oral argument on Cooper’s motion, Judge Lyons denied the motion, citing Gouker v. Winnebago County Board of Supervisors (1967), 37 Ill. 2d 473, 228 N.E.2d 881, and noting that he previously held a pretrial conference with the parties involved.

We glean from the record that the February 23, 1988, pretrial conference lasted IV2 hours and that the parties discussed the nature of the case, the theories of potential liability, the witnesses, and potential evidentiary problems. Judge Lyons, at that time, was not the assigned trial judge in the case. There is nothing in the record to indicate that Judge Lyons made a ruling on a substantial issue at the pretrial conference. However, following the trial, Judge Lyons, in rejecting Cooper’s post-trial motion, commented that his previous denial of Cooper’s motion for a change of venue was based upon his extensive participation in the pretrial conference.

Cooper contends that its petition for a change of venue was improperly denied, rendering all orders entered subsequent thereto void. We agree. Section 2 — 1001(a)(2) of the Code of Civil Procedure provides “[a] change of venue in any civil action may be had *** [wjhere any party or his or her attorney fears that he or she will not receive a fair trial in the court in which the action is pending, because the inhabitants of the county are or the judge is prejudiced against him or her, or his or her attorney, or the adverse party has an undue influence over the minds of the inhabitants. In any such situation the venue shall not be changed except upon application, as provided herein, or by consent of the parties.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001(a)(2).) The right to a change of venue is absolute where a motion alleging prejudice of the judge is filed before trial or hearing and before the judge presiding in the case has made any substantial ruling. (Stoller v. Paul Revere Life Insurance Co. (1987), 163 Ill. App. 3d 438, 517 N.E.2d 5.) The salutary principle is that one should not be compelled to plead his cause before a judge who is prejudiced, whether actually or only by suspicion, and the right is mandatory if made in apt time. (American State Bank v. County of Woodford (1977), 55 Ill. App. 3d 123, 371 N.E.2d 232.) Courts liberally construe the venue provisions to permit rather than defeat a change of venue, particularly where the movant charges prejudice on the part of the judge. (Stoller v. Paul Revere Life Insurance Co. (1987), 163 Ill. App. 3d 438, 517 N.E.2d 5.) Accordingly, Illinois courts have repeatedly held that if the petition for a change of venue is in proper form and timely filed, the trial judge must grant the petition. Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill. 2d 247, 311 N.E.2d 673; Frede v. McDaniels (1976), 37 Ill. App. 3d 1053, 347 N.E.2d 259.

A petition for change of venue, however, must be brought at the earliest practical moment. (Wagner v. David (1966), 35 Ill. 2d 494, 221 N.E.24 248.) A petition is untimely if brought after a hearing on the merits has started or the trial court has ruled on a substantial issue in the case. (Heman v. Jefferson (1985), 136 Ill. App. 3d 745, 483 N.E.2d 537.) The rationale for the timeliness requirement is that the courts have long condemned a litigant’s attempt to seek a change of venue after he has formed an opinion, based upon the court’s adverse rulings, that the judge may be unfavorably disposed toward his cause. (In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 463 N.E.2d 719.) A party should not be free to “judge shop” until he or she finds a jurist who is favorably disposed to his cause of action. In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 494 N.E.2d 541.

Cases which have found that a petition for a change of venue was properly denied because the judge had made a ruling on a substantial issue in the case have involved, for example, rulings on motions to dismiss (see City of Peoria v. Peoria Rental, Inc. (1978), 61 Ill. App. 3d 1, 377 N.E.2d 546); or where the court had already held in favor of the plaintiffs on a count of their complaint (Dethloff v. Zeigler Coal Co. (1980), 82 Ill. 2d 393, 412 N.E.2d 526); or where the court had made pretrial rulings of law (In re Estate of Roselli (1979), 70 Ill. App. 3d 116, 388 N.E.2d 87). The rulings made by the trial judge in those cases pertained to matters going to the merits of the case.

In contrast, cases which have found that a petition for a change of venue was improperly denied because no rulings on substantial issues had been made involved rulings on motions for continuances (see Little v. Newell (1973), 14 Ill. App. 3d 564, 302 N.E.2d 739

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Cite This Page — Counsel Stack

Bluebook (online)
550 N.E.2d 236, 193 Ill. App. 3d 459, 140 Ill. Dec. 600, 1990 Ill. App. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/becker-v-re-cooper-corp-illappct-1990.