ILLINOIS OFFICIAL REPORTS

Appellate Court

Cincinnati Insurance Co. v. Chapman, 2012 IL App (1st) 111792

Appellate Court

Caption

THE CINCINNATI INSURANCE COMPANY, Plaintiff-Appellee, v.

ARNOLD CHAPMAN and C.T. PHOENIX OF INDIANA, INC.,

Defendants-Appellants.

 District & No. First District, Second Division

Docket No. 1-11-1792

Filed June 29, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Substitution of judge as a matter of right should not be refused prior to

any substantive ruling in the case merely because the judge informs the

attorneys of his own prior rulings on the issue presented.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 10-CH-10888; the

Hon. Peter Flynn, Judge, presiding.

Judgment Certified question answered.
Counsel on

Appeal

Anderson & Wanca, of Rolling Meadows (Brian J. Wanca and David M.

Oppenheim, of counsel), for appellant Arnold Chapman.

Bock & Hatch, LLC, of Chicago (Phillip A. Bock, of counsel), for

appellant C.T. Phoenix of Indiana, Inc.

Cray Huber Horstman Heil & VanAusdal LLC, of Chicago (James K.

Horstman, of counsel), for appellee.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Justices Cunningham and Connors concurred in the judgment and

opinion.

OPINION

¶ 1 In March of 2010, plaintiff, the Cincinnati Insurance Company (CIC), filed a complaint

for declaratoryrelief against defendants, C.T. Phoenix of Indiana, Inc. (Phoenix), and Arnold

Chapman, seeking a judgment declaring that CIC was not obligated to defend and indemnify

Phoenix in its underlying lawsuit with Chapman. Chapman had previously filed the

underlying suit against Phoenix alleging Phoenix violated the Telephone Consumer

Protection Act of 1991 (TCPA) (47 U.S.C. § 227 (2006)) and the Illinois Consumer Fraud

and Deceptive Business Practices Act (815 ILCS 505/2 (West 2008)), and committed

common law conversion. CIC, which had issued a commercial general liability policy to

Phoenix, denied Phoenix’s demand to defend and indemnify it based on a TCPA exclusion

clause in the policy. CIC and Chapman participated in two status hearings in the case at bar.

At the second status hearing, the circuit court judge mentioned to the parties that he had

recently ruled on a similar issue in another pending case which involved Chapman’s counsel.

In the other pending action, the circuit court judge ruled against the party that Chapman’s

counsel represented. The day after the second status hearing, Chapman filed a motion for

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 2010). The circuit court certified

the following question pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010):

“Case A and Case B involve different parties but share a common substantive issue.

Defendants’ counsel in Case B also represents parties in Case A. Both cases are pending

before the same judge. The judge decides the common issue in Case A in a manner

directly adverse to the Case B defendants’ position. So far, however, there has been no

ruling in Case B. The Case B defendants then move for a 735 ILCS 5/2-1001(a)(2)

substitution of judge as a matter of right. Is the judge required to grant the motion?”

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¶ 2 JURISDICTION

¶ 3 The circuit court certified the question now before this court on June 14, 2011. Chapman

filed a petition for leave to appeal on June 27, 2011, which this court granted on August 1,

2011. Accordingly, this court has jurisdiction pursuant to Rule 308 governing certified

questions. Ill. S. Ct. R. 308 (eff. Feb. 26, 2010).

¶ 4 BACKGROUND

¶ 5 On March 17, 2010, CIC filed its complaint for declaratory relief against Chapman and

Phoenix. In its complaint, CIC alleged that it issued a commercial general liability policy to

Phoenix. In August of 2008, Chapman filed the underlying suit against Phoenix, alleging

Phoenix had telefaxed an advertisement to Chapman in violation of the TCPA (47 U.S.C.

§ 227) and the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS

505/2 (West 2008)). Chapman also alleged common law conversion. Phoenix made a

demand to CIC that it defend and indemnify it in the underlying suit under the commercial

general liability policy. CIC denied coverage based on an exclusion in its policy with

Phoenix. In August of 2009, Chapman and Phoenix settled. In October of 2009, Chapman,

as a judgment creditor, issued a third-party citation to discover assets to CIC. CIC asked that

a declaratory judgment be entered declaring that CIC was not obligated to provide coverage

for the underlying suit or any judgment that had been entered against Phoenix.

¶ 6 A case management hearing, which would have been the parties’ first appearance before

the circuit court, was set for September 10, 2010. However, Chapman and CIC presented an

agreed motion to reset the case management hearing date to September 21, 2010. In the

agreed motion, Chapman and CIC stated that both defendants had accepted service, but had

not filed an answer. The motion further stated Chapman planned to file an answer, but that

“[CIC] has been advised that [Phoenix] plans to default and not appear or answer.” On

August 16, 2010, the circuit court granted the agreed motion and entered an order resetting

the case management hearing date for September 21, 2010.

¶ 7 On September 21, 2010, the circuit court entered an order setting the matter for a status

hearing on December 7, 2010.

¶ 8 On December 7, 2010, anotherstatus hearing was held. We note that the record does not

contain a transcript from the December 7, 2010, hearing.

¶ 9 On December 8, 2010, Chapman filed a motion for substitution of judge as a matter of

right pursuant to section 2-1001(a)(2) of the Code. 735 ILCS 5/2-1001(a)(2) (West 2010).

Chapman alleged that all of the requirements for the substitution of judge as a matter of right

had been satisfied. Specifically, he had not previously moved or received a substitution of

judge in the case and that the circuit court had “not ruled on any issues in the case.”

¶ 10 In response, CIC argued Chapman’s motion was not timely filed. CIC alleged that the

parties had appeared before the court on two occasions: on September 21, 2010, and

December 7, 2010. At the September 21, 2010, hearing, CIC alleged that when the court

asked the parties whether cross-motions for summary judgment would be filed, the parties

responded that theywanted to complete discovery. According to CIC’s response, Chapman’s

counsel at the September 21, 2010, hearing also “referenced” a ruling by another circuit court

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judge in a similar case. CIC alleged the following occurred at the September 21, 2010,

hearing:

“Counsel for [Chapman] referenced a recent ruling by Judge Agran (Acuity Ins. v.

Blackhawk Paving, No. 08 CH 35830) which held that a similar TCPA exclusion was

inapplicable to the common law conversion count included in the TCPA complaint, and

argued that since a similar common law conversion count was included in the underlying

complaint against Phoenix, that [CIC] was obligated to afford coverage for the judgment

against Phoenix.”

A status hearing was set for December 7, 2010. At the December 7, 2010, status hearing, the

court again inquired whether the parties were prepared to file cross-motions for summary

judgment; the parties again indicated that theywould like to complete outstanding discovery.

CIC alleged that the following exchange occurred at the December 7, 2010, status hearing:

“In response to a statement by [CIC]’s counsel that his motion would rely upon an

exclusion for TCPA type conduct, th[e] Court made a statement to the effect that

‘[b]efore you file that motion, you should take a look at a case that I just decided

regarding a TCPA exclusion.’ When [CIC’s] counsel asked the Court for the name of the

case, the Court explained that he couldn’t remember the name of the case, but said that

he would ‘bet $5.00’ that [Chapman’s counsel] had argued the case and would be able

to provide [CIC] with a copy. The Court promised to find a copy of the decision and

provide it to both sides if [Chapman’s counsel] could not identify the case. The hearing

ended with the Court setting a new status date of March 15, 2011.”

CIC argued further in its response that Chapman “had at least two opportunities to ‘test the

waters’ with” the circuit court and that he only moved for substitution of judge when he

knew the court would reject his argument.

¶ 11 The record does not contain a reply brief on Chapman’s behalf.

¶ 12 On January 10, 2011, the circuit court held a hearing on Chapman’s motion for

substitution of judge. At the hearing, Chapman argued his motion should be granted because

the court had not yet made a substantial ruling, and he was not seeking to avoid or delay trial.

As further support, he cited the legal principle that substitution of judge motions should be

liberally granted. CIC agreed with Chapman that the court had not yet made a substantive

ruling, but asserted that “a motion for substitution of judge may be denied if the movant had

an opportunity to test the waters and form an opinion as to the judge’s reaction to her claim.”

CIC argued that Chapman did not move for substitution of judge until after he had learned

about the judge’s ruling on a similar matter, Indiana Ins. Co. v. Vehicle Alignment, Brake

& Tires, Inc., No. 09 CH22676 (Cir. Ct. Cook Co.) (hereinafter, Vehicle Alignment).

¶ 13 In making its ruling, the court anticipated a “wave” of similar cases in the future. It then

voiced its concern that “if I am [substituted] because of my ruling in Vehicle Alignment in

this case, it would seem probable that I will be [substituted] because of my ruling in Vehicle

Alignment, in every case.” The court commented that “means that for a sizable number of

insurance declaratory judgment actions, I will effectively cease to be part of the chancery

division.” The court stated that this would “undercut the random assignment of cases in the

chancery division.” The circuit court judge also recalled how he brought up his ruling in

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Vehicle Alignment to the parties at the December 7, 2010, status hearing, stating:

“My recollection is that I avoided saying anything about how I thought the [Vehicle

Alignment] ruling might impact on this case. And I should have because I have no idea

how the [Vehicle Alignment] ruling might impact on this case. It may turn out to be

completely beside the point. It just happens to be a ruling on a TCPA insurance exclusion

clause. And the facts that underlay the [Vehicle Alignment] case, [Chapman’s counsel]

will recall, were unusual. I stress that they were unusual when I ruled in that case.”

The court denied Chapman’s motion, finding:

“I do not have any hesitation in concluding that this is a situation in which the

[substitution of judge] motion arises out of the movant’s perception of the judge’s

position in this case as opposed to the judge’s general disposition or general baggage.

And because of that, I can deny this motion without at all stretching the boundaries of the

existing case law.”

¶ 14 After denying the motion, the court then instructed the parties to draft a certified question

pursuant to Rule 308. Ill. S. Ct. R. 308 (eff. Feb. 26, 2010).

¶ 15 On June 14, 2011, the circuit court entered an amended order certifying a question under

Supreme Court Rule 308. The circuit court included in its order a background section, in

which it explained that “this is a declaratoryjudgment dispute concerns a ‘TCPA’ (47 U.S.C.

§ 227), a/k/a ‘junk fax’ insurance policy exclusion.” The court stated that “well over 100

TCPA ‘junk fax’ class action suits” had been filed in the circuit court of Cook County. Most

of the plaintiffs in the TCPA junk fax suits had been represented by “a relatively small

number of law firms.” As an example, the circuit court stated that the two law firms that

were representing Chapman in the case at bar had filed 62 TCPA junk fax suits on behalf of

a single plaintiff. The court characterized the initial class action suits as “ ‘TCPA Phase I’ ”

cases.

¶ 16 The circuit court explained that “ ‘TCPA Phase II’ ” cases were insurance coverage

disputes and classified the case at bar as a phase two case. The court then stated :

“Given the Phase I situation, one can expect that a few law firms–including Mr.

Chapman’s astute counsel–will likely be involved in numerous Phase II cases. Under

Cook County Cir. Ct. General Order 1.2, § 2.1(b)(1), all of the Phase II declaratory

judgment cases will be heard by one or another of 15 General Chancery Section judges.

Of course, judge-shopping is not encouraged.

This is a ‘TCPA Phase II’ case. This Court had previously considered cross motions

for summary judgment in another ‘TCPA Phase II’ case (Indiana Ins. Co. v. Vehicle

Alignment, Brake & Tires, Inc., No. 09 CH22676), which involved issues, and a policy

exclusion, very similar to those involved in this case. In Vehicle Alignment, this Court

ruled in favor of the insurer. After that ruling, Mr. Chapman–aware of the ruling, since

his counsel here was also counsel for the underlying plaintiff in Vehicle Alignmentmoved for a substitution of judge as of right in this case.

That situation is almost certain to repeat itself on multiple occasions, given the

pattern of TCPA litigation described above.”

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The circuit court then certified the following question for appellate review:

“Case A and Case B involve different parties but share a common substantive issue.

Defendant’s counsel in Case B also represents parties in Case A. Both cases are pending

before the same judge. The judge decides the common issue in Case A in a manner

directly adverse to the Case B defendants’ position. So far, however, there has been no

ruling in Case B. The Case B defendants then move for a 735 ILCS 5/2-1001(a)(2)

substitution of judge as of right. Is the judge required to grant the motion?”

The circuit court then made the following findings regarding its certified question pursuant

to Rule 308 (Ill. S. Ct. R. 308 (eff. Feb. 26, 2010)): that it is a question of law; a substantial

ground exists for the difference of opinion; and appellate review “may materially advance

the ultimate termination of this litigation.”

¶ 17 On June 27, 2011, Chapman filed his petition for leave to appeal, which this court

granted on August 1, 2011. This appeal followed.

¶ 18 ANALYSIS

¶ 19 Before this court, Chapman argues the circuit court erred in denying his motion for

substitution of judge because the circuit court had yet to make a substantive ruling in the

case. Chapman maintains that his counsel’s knowledge of an adverse ruling that a judge

made in another case involving his counsel is not a proper ground for denying his motion.

He claims that a “party’s choice of counsel is materially impacted by that attorney’s prior

experience in other cases before a particular judge, and the attorneywill be forced to disclose

that his retention will undermine the potential client’s otherwise absolute right under[section

2-1001 of the Code].”

¶ 20 In response, CIC maintains that the circuit court properly denied Chapman’s motion for

substitution of judge because Chapman waited to move to substitute judges until after the

judge had already advised the parties of his ruling in a similar case, which CIC believes was

an indication of how the judge would rule in the case at bar. CIC also argues that Chapman’s

motion was late as it was filed eight months after the case began. CIC maintains that both

sides were disqualified from seeking a substitution of judge as a matter of right pursuant to

section 2-1001(a)(2) of the Code (735 ILCS 5/2-1001(a)(2) (West 2010)) after the December

7, 2010, hearing because, based on the judge’s comments regarding the Vehicle Alignment

case, both sides then had actual knowledge of how the judge was inclined to rule on the

TCPA coverage exclusion at issue in their case. CIC acknowledges that the general rule

regarding substitution of a judge as a matter of right is that it is absolute prior to any

substantive rulings. However, CIC argues that an exception to the general rule applies in this

case, which is that a party cannot move to substitute a judge as a matter of right after it has

had the opportunity to test the judge’s opinion as to the issue.

¶ 21 A certified question brought under Rule 308 is a question of law and, therefore, our

review is de novo. Fosse v. Pensabene, 362 Ill. App. 3d 172, 177 (2005). We are typically

limited to answering onlythe certified question presented as opposed to determining whether

the underlying order is proper. Id. However, we may look at the record of the trial court

proceedings and beyond the limits of the certified question to address whetherthe underlying

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order is appropriate in order to reach an equitable result in the interest of judicial economy.

Id.

¶ 22 Section 2-1001(a)(2) of the Code provides for the substitution of a judge as a matter of

right. 735 ILCS 5/2-1001(a)(2) (West 2010). Section 2-1001(a)(2) provides, in relevant part:

“Substitution of a judge.

(a) A substitution of judge in any civil action may be had in the following situations:

***

(2) Substitution as of right. When a party timely exercises his or her right to a

substitution without cause as provided in this paragraph (2).

(i) Each party shall be entitled to one substitution of judge without cause as

a matter of right.

(ii) An application for substitution of judge as of right shall be made by

motion and shall be granted if it is presented before trial or hearing begins and

before the judge to whom it is presented has ruled on any substantial issue in the

case, or if it is presented by consent of the parties.

(iii) If any party has not entered an appearance in the case and has not been

found in default, rulings in the case by the judge on any substantial issue before

the party’s appearance shall not be grounds for denying an otherwise timely

application for substitution of judge as a right by the party.” 735 ILCS 5/2-

1001(a)(2) (West 2010).

¶ 23 Under section 2-1001(a)(2) of the Code, a litigant is allowed one substitution of judge

without cause as of right. 735 ILCS 5/2-1001(a)(2) (West 2010). The right to substitution of

judge is absolute when properly made, and the circuit court has no discretion to deny the

motion. In re Marriage of Abma, 308 Ill. App. 3d 605, 609-10 (1999). “However, to prohibit

litigants from ‘judge shopping’ and seeking a substitution only after they have formed an

opinion that the judge may be unfavorably disposed toward the merits of their case, a motion

for substitution of judge as of right must be filed at the earliest practical moment before

commencement of trial or hearing and before the trial judge considering the motion rules

upon a substantial issue in the case.” In re Estate of Hoellen, 367 Ill. App. 3d 240, 245-46

(2006) (citing In re Estate of Gay, 353 Ill. App. 3d 341, 343 (2004)). A motion for

substitution of judge may also be properly denied, even if the judge presiding did not rule on

a substantial issue, if the litigant “had an opportunity to test the waters and form an opinion

as to the court’s disposition” of an issue. In re Estate of Hoellen, 367 Ill. App. 3d at 246.

“The statute’s provisions are to be liberally construed in order to effect rather than defeat the

right of substitution.” Beahringer v. Hardee’s Food Systems, Inc., 282 Ill. App. 3d 600, 601

(1996); see also Sahoury v. Moses, 308 Ill. App. 3d 413, 414 (1999).

¶ 24 As we have stated, typically our review of a certified question is limited to the certified

question presented. Fosse, 362 Ill. App. 3d at 177. However, in this case, if we were confined

to answering only the certified question as presented, it would be impossible for us to

provide a definitive answer as there is no indication as to how the counsel in Case B learned

of the ruling in Case A. Without looking at the underlying record, the most appropriate

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answer would have to be “maybe” due to the inadequate wording of the certified question

presented. Accordingly, to achieve an equitable result and in the interest of judicial economy,

we will not confine our review to the limits of the certified question in this case. Id. Due to

the failings of the certified question presented, we will review the record of the trial court

proceedings to address whether the underlying order is appropriate. Id.

¶ 25 In this case, upon our review of the record, we hold that Chapman’s motion for

substitution of judge as a matter of right pursuant to section 2-1001(a)(2) of the Code should

have been granted. 735 ILCS 5/2-1001(a)(2) (West 2010). It is undisputed that the circuit

court had not yet ruled on a substantial issue. The only issue is whether either attorney was

able to “test the waters and form an opinion as to the court’s disposition toward his claim.”

In re Hoellen, 367 Ill. App. 3d at 246. Neither attorney in this case did so. Rather, it was the

circuit court judge himself who voluntarily brought his prior ruling, which was dispositive

of the issue presented, to both counsels’ attention. Under these facts, we cannot allow the

circuit court’s actions to undermine the purpose of section 2-1001(a)(2) of the Code in

providing a litigant a substitution of judge as of right. See Beahringer, 282 Ill. App. 3d at 601

(“The statute’s provisions are to be liberally construed in order to effect rather than defeat

the right of substitution.”). We find it contrary to the statute for the circuit court judge to sua

sponte inform the attorneys as to his rulings in past matters and having that event interpreted

as a testing of the waters by the attorneys. Here neither attorney tested the waters. Rather, the

circuit court judge imposed upon the attorneys the information as to his past rulings. This

was improper. Accordingly, we answer the certified question in the positive.

¶ 26 CONCLUSION

¶ 27 Based on the facts presented to this court, we answer the certified question presented in

the positive.

¶ 28 Certified question answered.

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