Supreme Court Summaries

Opinions filed January 20, 2012




Powell v. Dean Foods Co., 2012 IL 111714

Appellate citation: 405 Ill. App. 3d 354.


      JUSTICE THOMAS delivered the judgment of the court, with opinion.

      Justices Freeman, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.

      Chief Justice Kilbride took no part in the decision.


      In 2007, a jury award for over $20 million was entered in the circuit court of Cook County for the death of three persons in a 2002 collision in Wanatah, Indiana, between a passenger car and a tractor-trailer. There were multiple defendants, including the truck driver, his employer, and the owner of the load which was being carried. Other defendants later dismissed from the case included the owner of the tractor and the owner of the semit-trailer.

      The defense won a reversal and an order for a new trial from the appellate court, based on claimed error in the denial of a motion to dismiss a judge as a matter of right, without cause. Section 2-1001(a)(2) of the Code of Civil Procedure gives this privilege to all defendants once, provided no substantial ruling has yet been made in the case.

      Illinois case law holds that any and all orders entered after the improper denial of a motion to substitute a judge as a matter of right are null and void. It was on this basis that the defense was able to have the appellate court set aside the jury award and order a new trial. The plaintiffs, who represent the decedents, are the appellants here.

      The truck driver was an employee of defendant Alco of Wisconsin. Also named as a defendant was Alco, Inc. Statutory motions for substitution of judge as a matter of right were made in the names of both of these defendants and were granted. However, the second substitution, obtained by Alco, Inc., was challenged by plaintiffs, who asserted that this was merely an alternate name for the same entity, and that two different names should not be used to get two substitutions. It came to light that Alco, Inc., was the former name of the truck driver’s employer, later known as Alco of Wisconsin, and that a name change had taken place in 1989. The substitution of Judge Patricia Banks awarded to Alco, Inc., was reconsidered and then vacated.

      Subsequently, defendant Alder Group, the owner of the tractor, came forward and made its own motion for substitution as a matter of right as to Judge Banks. Plaintiffs objected, claiming that this could not occur because the determination of the status of Alco, Inc., which had just been made, was a substantial ruling in the case. Alder’s request was denied based on this theory and Judge Banks tried the case.

      The appellate court reversed, finding that the ruling was not “substantial” and could be challenged by any and all defendants.

      After leave to appeal was granted by the supreme court, plaintiffs moved to dismiss Alder Group with prejudice, releasing it from liability, and Alder agreed.

      The supreme court resolved this appeal as a matter of standing. The supreme court held that the appellate court had been correct when it held in Aussieker v. City of Bloomington, 355 Ill. App. 3d 498 (2005), that multiple plaintiffs in that case lacked standing to claim that the trial court there had erred in denying another plaintiff’s motion for substitution of judge as of right. In this decision, the supreme court said that once Alder, whose request to substitute as a matter of right had earlier been denied, was no longer in the case, no other defendant had standing to challenge that denial. Other defendants had either obtained the substitution they asked for or had not sought substitution. Thus, they obtained the relief they wanted and were not prejudiced.

      The supreme court refused to remand the cause to the circuit court for a new trial before a different judge, and vacated the appellate court’s decision which had done so. However, because other issues were raised before the appellate court which were not addressed there, the cause was remanded to the appellate court so that it could address the remaining questions.