most petition to revive was filed in two thousand and thirteen which i mention because a lot of very important events took place in the twelve years between the entry of the judgement that's attempted to be revived and the petition to revive that judgment first judge appleton then jumped in with elevated to the appellate bench second nancy mcgrath died so her state was who had to bring the petition to revive and third perhaps the most important event that took place is  john mcgrath satisfied the judgement that is attempting that the petitioner now attempts to revive after the petitioner vive was filed the first event becomes important it becomes important because judge appleton then judge evelyn was no longer able to preside over the case so a new judge had to be chosen in this case judge nor do i the respondent filed his objection an affirmative defenses to the petition to revive sating that he had satisfied the judgment and that was going to be  shoe it would be heard at the trial of this matter whether the petition excuse me whether the judgment was satisfied and that trial was set for december eighteenth two thousand and thirteen along with that or the motions all in the motions that were going to be in this case a motion to dismiss the objection which is later referred to as a judgment on the pleadings but i just want to clarify that it was actually a motion to dismiss the objection an affirmative defenses so prior to the december eighteenth two thousand and thirteen trial date the respondent undergrad filed his motion to substitute judge nor duly as a matter of right and that's the first issue of you want to appeal today that i'd motion to substitute judge or duly as a matter of right was improperly not and as such all subsequent borders should be declared void the review of this matter is that no and the reason that it's a good noble review is because the trial court does not have  a motion for substitution of judge as long as the elements or the requirements of section two dash one zero zero one of the code of civil procedure are met there's two real requirements to that section when we're talking about substitution of a mad as a matter of right the first is that the motion is filed before the trial date and that's the significance i was addressing with your honor and the second is that it's filed prior to any substantial border being entered by the would be substituted judge answer your question will have to address what is a substantial issue the answer to that is that the courts have never laid down a formulae explanation there's no exact point when an order becomes a substantial issue why shouldn't it be viewed as a substantial issue a ruling on a substantial issue well because generally speaking the courts are agreed that a substantial issue has to be relevant to the resolution of the merits of an action that's a substance of pusher this is a substantial issue of the difference between those two well i believe that the substantial issue isn't substantial more like important or significant i believe that it has to be significant and important to the resolution of the merits of an action in order to be substantial as opposed to procedural issue and we can look at the o'brien case for some guidance on that issue where the judge where the supreme court reviews the difference between a procedural issue and a substantive issue and in states that in that case pacifically looking at whether a motion to substitute a judge's procedural versus a substantive issue or in my mind substantial issue and they say no this is just a procedural step this is not this is not fair on the resolution of the merits of the cause of action in other words deciding what if a judge should be recused for cause or not does not move for the merits of the cause of the action in any way but it's very important why i believe it's important or siciliano question to me if it  motion to continue which is another procedural type of issue is that these are the types of rulings that are that this is talking about a motion to continue i think it's a direct parallel to any other procedural issue in a case it's something that's procedural but isn't necessarily substantive however when you are substantial when you're talking about the the movement of a case whether it's a motion to continue or which judges one preside over and he's both procedur especially given the consequences i mean this is one of the tricky things about this situation is so days is that if there's a mistake there's no such thing is harmless  bright line being hey this guy's rule pretty significant issue significant issue who's going to be the judge resolving this case having so rule it can't some amount of the firm but i think that part of the problem with the bright line rule if i may your honor is that you start to run into too many nuances when you say well the judge wasn't the presiding judge at the time made this decision and this decision is now a bright line rule it's always going to be a substantial issue because he ruled on whether another judge was going to be the i was going to be the the judge presiding over the case and one potential issue that my phrases let's say the plaintiff in a case says well i would like to substitute judge a for cause and so judge be hears that substitution and there's only two judges in that county so he hears that the substitution he says yes this is correct we need to substitute the stars for cause now judge b is the judge in the defendant loses his absolute right to be able to substitute judge b as a matter of right because of the procedural history that we've just laid out so i think that when you run into complications like that avoidance of a bright line rule is important but also the understanding that these procedural matters are the types of matters that the legislature was talking about when they set a substantial rule and that again when you look at becker we see mostly continue  ral issue these are what the legislature intended nor is a bright line rule what the courts have decided is the appropriate rule or the appropriate type of rule for this case instead we can look to whether the judgment moves for are the ruling or the order that judge nor duly denied the motion upon he said that he that he denied a motion for judgment on the and you know i think i've explained motion for substitution of a judge the record does not support in any motion was ever ruled upon or heard and in fact the record directly supports the officer on page one twenty eight and i only mention it so it's easy for your honour's to find the petitioners attorney mr young states on the record that motion was never ruled upon so now we have both attorneys have the understanding that no motion was ever heard ruled upon then we can look to the docket first there's no order ever entered the docket does not state that did that on and the better case the court looks at four different interactions between the moving party who wants us to the judge and the opposing party both in the judge of course but those include breach trials they include filed in the court examines the record before a motion is filed before there's a statement saying well this might have happened then or this might then what they come to the conclusion is that there is nothing on the record that supports that any motion was ever heard or any substantial order was ever made in that case and because it's not appearing on the record prior to the motion being filed the court says that the trial court had no discretion to deny the motions to substitute in this case the facts are almost perfectly aligned with the facts and becker the trial court did not have discretion to deny the motion for substitution of judge because it was filed in compliance with the requirements of section two dash one zero zero one of the code of civil procedure if this court should disagree with me on that issue i believe it should still reverse and remand because the trial court erred when it revived the motion excuse me when it revived the two thousand and one judgment satisfaction of a judgment is an absolute defense to the revival of that judgment in this case john mcgrath satisfied the two thousand and one judgement he set aside the judgment to payment taxes and when we talk about this is me counsel just doesn't this really pull down to whether or not he was receiving additional grants for the fact that he was paying taxes and so whether or not he would be entitled to that credit i don't believe so your honor why not i think that issues are relevant and i think it's a relevant for a lot of the reason that the judge loses order in a lot of the reason the petitioner includes in his brief and that is that the law in this case is governed by the dissolution of marriage in other words we have the dissolution of marriage and that's the terms of that dissolution that govern how the judge should order in this case it governs how the judge or the judge then judge appleton ruled in the two thousand and one judgment is attempting to revive and there's a very important facts never put into trust this is recognized in the two thousand and one judgment by then judge appleton who stated in that order when talking about the trust this never happened he doesn't say that this judgment created a trust that this judgment acted to make it happen anyways he says that the land was ordered to be divided or agreed to be divided in this manner but this never happened and i think that's very important he also states in the two thousand and one order to go back to your first question your honor that the   ceased in this is mcgrath nancy had the ability to rent out her land that she saw fit so in other words she could negotiate her rent john to negotiate his rent and the reason that john's negotiations don't apply to nancy's negotiations is exactly what i was alluding to want to talk about the judgment of dissolution of marriage nowhere in that order nor that dissolution does it state that john mcgrath has any future to negotiate nancy's right they weren't talking to one another it just it does not create any sort of  that he doesn't remember the first meeting that that's just the way it was but we can see from john's testimony that that was not just the way it was he would mail out the agreements for these rental amounts it would be signed separately nancy would sign hers outside of john's pres talk to her john what scientists outside of nancy's present there's no evidence other then that's just the way it was that supports the notion that john mcgrath was negotiating nancy regress or vice versa it seems to me that their old home was giving the same amount of rent to  mcgrath was negotiating for himself and did that kind of same paradigm up till sarah hoye up until up until i guess he thought he was pain john more than he would have to pay nancy and then he stopped but there was never a time that supported by the that john mcgrath went in and said no longer pay nancy anymore pay me more instead of nancy it just never happened he might have used some negotiation tactics to push it his own amount but never is there any obligation by the by the dissolution of marriage never is there any negotiation in turn by the two thousand and one order it says that john mcgrath have any responsibility to negotiate nancies in fact the exact opposite is true in the two thousand and one order it states very clearly nancy mcgrath has the right to read her i believe that's what the record supports actually now with respect to the buildings that were on the property is it true that your client i'm happy those items in that nancy are her seat and had nothing to do with that and so why should your client get some type of credit for repairs and maintenance done on those buildings absolutely around her because the divorce order says that any permanent repairs should be split according to the same proportion as the taxes and again if we apply common law or statutory evolve maybe that's a different type of scenario but if we're flying the terms of the dissolution of marriage then we can see that any permanent any permanent repairs the benefit of the home so just because nancy didn't enjoy them in life doesn't mean that there's not some real benefit to the to the the state and seasons are exceeding to the here and then lastly i'll be very brief on it on the attorney's fees i don't believe attorney's fees were appropriate in this case a believe that there was a just a compelling and justifiable cause to dispute not only whether the satisfaction whether the judge was satisfied but whether it's partial side in fact the amount that they asked for petition to revive is less than what they got i cannot believe for the life of me that it was the intent of the legislature to say that unless you absolutely i may finish thank you i cannot believe it's the intent of the legislature to say that you either have to just you let the judgment be revived and that's the amount you owe when you win in other words i didn't win the entire thing but the amount that was awarded was less i just cannot believe that the legislature intended to just have to over the entire amount without being able to have a hearing when it might be less than especially when you succeed that it was less they asked for thirty eight thousand eight hundred sixty dollars and eighty seven cents and the amount revived was twelve thousand eight hundred fifty dollars and eighty four cents so i just can't believe that that  morning please of course a couple of things i think counsel is confusing with judge nor do we refer to on the what he was ruling there was a separate motion filed under the reviver statute which plainly states that in order reviving the judgment shall be for the original amount of the judgment plaintiff may recover interest and court costs credits to the judgment to be reflected by the pla supplemental pleadings or execution it was on that basis that we asked the court just enter a judgment instanter of revival and that's what he referred to as a judgment item on the pleading saying no i'm going to allow the affirmative defenses i'm going to do this on an evidentiary basis allow mr mcgrath to have a trial so even if you get past the fact that he had in fact actually filed a motion for substitution of judges a matter of right back in one thousand nine hundred eighty that appears that in the record at page c one sixty nine he says that as a matter of writing i don't know tyler when he says i was hard on it because the issue right he says i bring this petition under age two and three and then the next paragraph three then he says i'm entitled to a substitution as a matter of right because no previous substitution judge has been made that the statute doesn't say you have to succeed before you exhaust what you've got i don't see a disposition of that back but the fact is he did file a motion and apparently it was on being done timely or whatever but i agree with you it's not there but i think the answer even if we move forward twelve years and start all over and look at it what happened here after we went through a number of final pretty trials at one of the pretrial us with a motion for revival of the judgment instant under the the statute itself was presented judge in our duly and unfortunately he didn't include it in his documentary but he made it clear later on to when he was ruling on the motion when i denied that motion for judgment on the pleading which i submit i not the motion to strike the affirmative defenses but it was the motion for revival instanter that he said no i'm going to allow this to proceed that's what he said and an evidence or a basis and he did allow it to go forward on that basis so that there's very clear there was never any ruling on that or he hadn't filed the motion we move forward it's clear the judge in our duly had in fact ruled on a substantive issue well prior to the commencement of the trial is there a transcript of this  that's what judge nor do we said in his ruling on the motion not to recuse himself as a matter rightly said i ruled on a substantive matter back then when i ruled on mr young's motion on an application for a revival the courts must revive the judgment and take up all the other matters as part of the supplementary proceedings and that's what i sought to invoke at that time to avoid the necessity of a potential hearing at that point in time to move directly to supplementary hearing that there's so we were so respectful of smith that the the the trial court correctly ruled on the motion for substitution is a matter of right as to the motion as to the appeal on the merits of the case mr mcgrath's argument basically is you should substitute your judgment for judge and i believe the judgment i was entitle to believe duly clearly stated i find you not credible and he found in terms of the tenant farmers testimony said i believe him when he said mr graef went to him and said i need to negotiate a higher rent from this point on up until a certain point i think was ninety nine two thousand and eight they got the same read and therefore she was required to pay the her share of the taxes after that he went said look i'm managing  responsibility as a co tenant if not beyond that beyond that also judge and i duly said look this is a trust what didn't happen it wasn't transferred to a third party trustee which is what was agreed to by the parties and ordered  initially but he said i take this judgment as i find it it is a trust and therefore each of the parties is a fiduciary for the other and that's what he said and he credits for taxes paid after mr mcgrath negotiated himself higher rent could not be credited because he was he got the money to pay the taxes and that part of it is still pending in the trial court and judge not only specifically said we'll take up the accounting on that matter at a later time so that's still an  as to the third point i think that it's a this is a the solution of mary jack the section five away clearly says unless there's a compelling justification enforcement of the judgment the  how did that at the final pretrial hearing he said i'm allowing this to proceed on an evidentiary basis therefore denying the motion for judgment of revival instan the documentary doesn't reflect that he did not enforce but when he was ruling on mr mcgrath's motion he said when i denied mr mugg young's motion for judgment on the law we're asking you to do it instanter that's when he said no i will allow this to proceed and never venture a basis which he did he said for trial and so that's just before that hearing to place and by the way that came probably a citation discovery assets at which the trial court would have to determine what the actual amount of credits or do now there is that brings up another point mr nest judge was on an ongoing basis he says no i think he's entitled to application of whatever payments he made to the principal will figure out the interest later on and that's why the judgment was only for twelve thousand dollars there's out in fact nearly forty thousand dollars due when you go back and have the interest in problems and that's still pending before the court so counsel what about the issues related to the field hears and things that  taxes and she had no right to go on that property or have anything to do it's very clear that mr mcgrath had very exclusive possession that property and as a life tenant is responsible for all of those things so there is nothing in the judgment to suggest that she's responsible in any way for any part of the repairs improvements in those kinds of things which she attempted to sticker with how do you distinguish that tile  great in fact she was charged with half of i think a forty five dollar bill for some tile that you purchased that farm in home to repair  i think that the confusion with exactly what was ruled on first place for sun white in other words the quote from the oral argument he called it a judgment on the pleadings but of course that's not what he meant we don't know what  reason we don't know what he meant is because it's not in the record who's who are you quoting mr young stated during his oral argument just now well what about judge nor do these characterization of his own who are willing to perform even though it was after the fact w had worthy of respect for the school i think there's two answers to your question your honor one the the pleading that he says he ruled on doesn't even exist that there is no wasn't there a motion for yes ma'am i was at all three i believe there are three total recall operatives and i do not remember so i know you're simply wrong in this recollection of what happened and what he did i believe so your honor yes and i believe that is the second part of my evidence i just don't i have no recollection of it happen and i don't believe but isn't that in fact what happened not namely he did hear evidence he did but again it was all any matter what was in their request for just a revival ducks were without anything further it was put off until december eighteenth two thousand and thirteen opening matters would be heard that so judge and i duly thoughts about his own ruling and what happened in the context he was wrong i believe so your honor and i mean no disrespect whatsoever but it's not really this is not a tough call for us to be making at this point no or not because it's not supported by the record in other words the record is the judge's own recollection of what he wrote in the context of how he rolled it that's part of the record but there is no order entered prior to my filing of the motion for substitution of judge there's no documentary there is no record support prior to the filing that that would that would allow the court discretion  only something that he remembered something might have happened during the pretrial and i think that that's why this case is a perfectly aligned with specter yes something happened there in the pretrial but what and so what you're saying is you filed your motion initially transferred to the chief judge and then but when it was actually talked about for the first time was on the eighteenth yes that's exactly right but i think it again it all lines with after the motion to substitute was file it was recalled that something happened and when we read the becker case we know that we look back to the record and if it's not supported then it's not supported in this case all of the confusion about what exactly was even ruled upon speaks