                                          2018 IL App (3d) 170729

                               Opinion filed September 5, 2018
     _____________________________________________________________________________

                                                   IN THE


                                     APPELLATE COURT OF ILLINOIS


                                             THIRD DISTRICT


                                                     2018 


     JACK R. CHAVIS and BONNIE J. CHAVIS,               )      Appeal from the Circuit Court
                                                        )      of the 10th Judicial Circuit,
            Plaintiffs-Appellants,                      )      Peoria County, Illinois.
                                                        )
            v. 	                                        )      Appeal No. 3-17-0729

                                                        )      Circuit No. 17-SC-31 

     WOODWORKER’S SHOP, INC.,                           )

                                                        )      Honorable

            Defendant-Appellee,	                        )      Paul P. Gilfillan and Jodi M. Hoos,
                                                        )      Judges, Presiding.
     _____________________________________________________________________________

           JUSTICE LYTTON delivered the judgment of the court with opinion. 

           Presiding Justice Carter and Justice O’Brien concurred in the judgment and opinion. 

     _____________________________________________________________________________

                                                  OPINION

¶1          Plaintiffs, Jack R. and Bonnie J. Chavis, filed a small claims complaint against defendant,

     Woodworker’s Shop, Inc. (Woodworker’s), seeking $9085.13 in damages for the improper

     installation of their wood floor. The trial court entered judgment in plaintiffs’ favor and awarded

     them $100 in damages, plus costs. On appeal, plaintiffs argue, among other things, that the trial

     court erroneously denied their motion for substitution of judge as of right pursuant to section 2­

     1001(a)(2) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1001(a)(2) (West 2016)).

     Because we conclude that the trial court erred in denying plaintiffs’ motion for substitution, we

     reverse in part, vacate in part, and remand for a new trial before a different judge.
¶2                                           BACKGROUND

¶3          Plaintiffs paid Woodworker’s $8000 to install engineered hardwood flooring in their

     house over an existing concrete floor. The flooring was installed in January 2015. Six months

     later, plaintiffs contacted Woodworker’s and informed the company that the flooring was

     uneven. Woodworker’s sent an employee to investigate plaintiffs’ complaints and determined

     that the hardwood was properly installed. Woodworker’s subsequently refused to repair the floor.

¶4          On January 8, 2017, plaintiffs filed a small claims complaint seeking damages in the

     amount of $9085.13 for Woodworker’s failure to adhere to the manufacturer’s specifications.

     They claimed that the improper installation of the hardwood flooring resulted in a floor that was

     not flat and did not have the required expansion space.

¶5          The matter was scheduled for a first appearance on January 23, 2017, before Judge Jodi

     M. Hoos. On that date, Woodworker’s appeared through counsel and plaintiffs appeared pro se.

     The court scheduled the matter for a bench trial on March 23, 2017. At the conclusion of the

     proceeding, Jack made an inappropriate remark directed at Judge Hoos. The judge found him in

     contempt, placed him in a holding cell, and released him after an apology.

¶6          On March 8, two weeks before the scheduled trial, plaintiffs filed a motion “asking for

     the judge to recuse herself.” The motion was heard before the chief judge of the circuit court. At

     the hearing, Jack informed the court that at the first appearance, he asked the judge about

     discovery and the admissibility of evidence, and the judge told him to talk to an attorney. As he

     was leaving the courtroom, he “made a statement he shouldn’t have made” and the trial court

     found him in contempt. Jack stated that he was handcuffed and placed in a holding cell. He later

     apologized, and the court released him. In addition to Jack’s statement to the court, both parties




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       agreed that from the date of the first appearance to the filing of plaintiffs’ motion, no other

       motions had been filed and no other rulings had been made by the court.

¶7             The trial court denied plaintiffs’ motion for substitution of judge as of right. The court

       held that the contempt finding was a substantial ruling in the case, which precluded Jack from

       substituting the judge without cause as a matter of right.

¶8             The cause proceeded to trial. After hearing evidence, the trial court ruled that the only

       basis for liability was the improper installation of the expansion joints. The court determined that

       the cost to repair the floor joints was $100 and entered an order in plaintiffs’ favor for $100 in

       damages, plus costs, for a total amount of $191.

¶9                                                 ANALYSIS

¶ 10           Plaintiffs argues that (1) their motion for substitution of judge as of right was erroneously

       denied because there was no ruling on any substantial issue in the case, (2) the trial court

       misapplied Illinois Supreme Court Rule 286 (eff. Aug. 1, 1992) in conducting the small claims

       proceedings, and (3) the trial court’s finding that defendant was only liable for improperly

       installing the expansion joints was against the manifest weight of the evidence. We will only

       address plaintiffs’ argument concerning the denial of the motion for substitution of judge as of

       right because it is dispositive.

¶ 11           Under section 2-1001(a)(2)(i) of the Code, a civil litigant is entitled to one substitution of

       judge without cause as a matter of right. 735 ILCS 5/2-1001(a)(2)(i) (West 2016). The trial court

       must grant a party’s motion for substitution of judge as of right if the motion “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.” Id. § 2-1001(a)(2)(ii); see also Rodisch v. Commacho-Esparza, 309 Ill. App.




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       3d 346, 350 (1999). A substantial issue is one that relates directly to the merits of the case.

       Rodisch, 309 Ill. App. 3d at 350-51; In re Estate of Gay, 353 Ill. App. 3d 341, 343 (2004).

¶ 12          “The right to substitution of judge is absolute when properly made, and the circuit court

       has no discretion to deny the motion.” Cincinnati Insurance Co. v. Chapman, 2012 IL App (1st)

       111792, ¶ 23. “Section 2-1001(a)(2) of the Code is ‘to be liberally construed, and where the

       conditions are met, the trial court has no discretion to deny the request unless it is shown that the

       motion was made simply to delay or avoid trial.’ ” Illinois Licensed Beverage Ass’n v. Advanta

       Leasing Services, 333 Ill. App. 3d 927, 932 (2002) (quoting Sahoury v. Moses, 308 Ill. App. 3d

       413, 414 (1999)). Because the trial court has no discretion to deny a proper motion for

       substitution of judge as of right, our review is de novo. Id.

¶ 13          In denying plaintiffs’ motion for substitution of judge, the trial court found that Judge

       Hoos’s finding of contempt constituted a ruling on a substantial issue in the case. A ruling that

       directly relates to the merits of the case is considered a ruling on a substantial issue. See Rodisch,

       309 Ill. App. 3d at 350-51. Cases finding the existence of a ruling on substantial issue include

       instances where the court made a ruling on a motion to dismiss (City of Peoria v. Peoria Rental,

       Inc., 61 Ill. App. 3d 1 (1978)), a motion for a preliminary injunction (Sarah Bush Lincoln Health

       Center v. Berlin, 268 Ill. App. 3d 184 (1994)), or a motion to bar potential evidence (In re

       Marriage of Petersen, 319 Ill. App. 3d 325 (2001)). Cases reaching the opposite conclusion

       include situations in which the court has held a pretrial conference regarding settlement

       (Rodisch, 309 Ill. App. 3d at 350-51), set dates for allowing for continuances (Becker v. R.E.

       Cooper Corp., 193 Ill. App. 3d 459 (1990)) and granted a continuance on its own motion

       (Scroggins v. Scroggins, 327 Ill. App. 3d 333 (2002)).




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¶ 14          Contempt proceedings are best characterized as “sui generis.” People ex rel. Chicago Bar

       Ass’n v. Barasch, 21 Ill. 2d 407, 409 (1961). In this case, the nature of Jack’s behavior is most

       appropriately characterized as criminal contempt. See People v. Hixson, 2012 IL App (4th)

       100777, ¶ 11 (criminal contempt is appropriate where litigant engages in conduct to embarrass,

       hinder, or harass the court in its administration of justice). While Jack’s conduct at the first

       appearance was inappropriate and unacceptable, the trial court’s contempt ruling had nothing to

       do with the merits of plaintiffs’ small claims action. Therefore, no ruling was made on a

       “substantial issue” in the case. See 735 ILCS 5/2-1001(a)(2)(ii) (West 2016). Plaintiffs’ motion

       for substitution of judgment as of right was improperly denied.

¶ 15          Because respondent had an absolute right to substitution of judge, we reverse the order

       denying the motion for substitution. Any order entered subsequent to the time that a motion for

       substitution of judge should have been granted becomes a nullity. In re Dominique F., 145 Ill. 2d

       311, 324 (1991). Thus, the trial court’s order awarding damages in the amount of $191 is void

       and must be vacated. See Schnepf v. Schnepf, 2013 IL App (4th) 121142, ¶ 60.

¶ 16                                            CONCLUSION

¶ 17          The judgment of the circuit court of Peoria County is reversed in part and vacated in part.

       The cause is remanded for a new trial before a different judge.

¶ 18          Reversed in part and vacated in part; cause remanded with directions.




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