Every litigation attorney is all too familiar with having to tell their clients, “Shut your mouth when you are in front of the Judge.” Try as you might, there is always that one client who thinks he or she knows more than you and Judge and has to get in the last word. In the most extreme situations, litigants are held in contempt for their outbursts in the court room. The result is the client has prejudiced himself or herself against the Judge, perhaps even before any hearing of the cases’ merits. There is little you can do to repair your client’s character with the Judge once it is gone, and your only hope may be a Motion for Substitution as of Right.
Jack Chavis, while representing himself pro se, learned the hard way that you should not make an inappropriate remark to the Judge. In January 2017, Jack and his wife filed a small claims case against Woodworker’s Shop, Inc. (Woodworker’s), for improper instillation of hardwood flooring in their home. Chavis v. Woodworker’s Shop, Inc., 2018 IL App (3d) 170729 ¶ 4. At their first court appearance, as Jack was leaving the courtroom he made an inappropriate remark directed towards the Judge. Id. ¶ 5. As expected, the Judge then held Jack in contempt, placed him in a holding cell, and subsequently released him after he apologized. Id.
Subsequently, Jack filed a motion “asking the judge to recuse herself” [sic]. Id. ¶ 6. From the date of the filing of the suit to the date that Jack filed his motion for substitution, no other motions had been filed and no other rulings, besides he contempt ruling, had been made. Id. The trial court denied Jack’s motion for a substitution of judge as a right because the court found that the contempt finding was a substantial ruling on the case. Id. ¶ 7.
At the small claims trial, the trial court ruled that the only basis for liability was the improper instillation of the expansion joints and only awarded The Chavises $100 in damages, plus costs, for a total amount of $191. Id. ¶ 8. The Chavises appealed alleging that (1) their motion for substitution of right was improperly denied, (2) the trial court Misapplied Illinois Supreme Court Rule 286, and (3) the trial court’s finding that the defendant was only liable for improperly installing the expansion joints was against the manifest weight of evidence. Id. ¶ 10. The Third District Appellate Court chose only to address the first claim as it was dispositive. Id. The motion for substitution of right should have been granted and as a result the case was remanded to the trial court for a new trial. Id. ¶ 15.
The appellate court reiterated that the trial court must grant a party’s motion for substitution of judge as a right if the motion is presented before trial or hearing begins and before the judge to who it is presented has ruled on any substantial issue in the case. Id. ¶ 11. A ruling that relates to the merits of the case is considered a ruling on a substantial issue. Id. ¶ 13. A ruling on a motion to dismiss, a motion for preliminary injunction, or a motion to bar potential evidence are all examples of a ruling on a substantial issue. Id. Pre-trial conferences regarding settlement, setting dates for continuances, and granting continuances on the Court’s own motion are not substantial rulings related to the issues in the case. Id.
The court ultimately found that while Jack’s behavior on the first court date was inappropriate and unacceptable, Jack’s criminal contempt had nothing to do with the merits of his small claims action. Id. ¶ 14. Therefore, no ruling was made on a substantial issue in the case and the cause should be remanded to the trial court and any order entered after Jack’s motion for substitution of judge becomes a nullity. Id. ¶ 14-15.
If you find yourself in a situation where a difficult client has said something they should not have in front of a judge, and there has been no ruling on the merits of the case, file a motion for substitution of judge.
Author: Deanna L. Hoyt. Published in the official publication of The Lake County Bar Association, The Docket, Vol. 25, Number 11, November 2018