Justice HARRIS delivered the judgment of the court, with opinion.
¶ 1 In March of 2010, plaintiff, the Cincinnati Insurance Company (CIC), filed a complaint for declaratory relief 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):
¶ 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).
¶ 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
¶ 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, another status 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 they wanted 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 judge in a similar case. CIC alleged the following occurred at the September 21, 2010, hearing:
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 they would like to complete outstanding discovery. CIC alleged that the following exchange occurred at the December 7, 2010, status hearing:
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 Vehicle Alignment to the parties at the December 7, 2010, status hearing, stating:
The court denied Chapman's motion, finding:
¶ 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).
¶ 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:
The circuit court then certified the following question for appellate review:
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.
¶ 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
¶ 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, 297 Ill.Dec. 771, 838 N.E.2d 258 (2005). We are typically limited to answering only the 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 whether the underlying 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:
¶ 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, 297 Ill.Dec. 771, 838 N.E.2d 258. 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 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, 305 Ill.Dec. 182, 854 N.E.2d 774. 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, 218 Ill.Dec. 130, 668 N.E.2d 614 ("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
¶ 27 Based on the facts presented to this court, we answer the certified question presented in the positive.
¶ 28 Certified question answered.
Justices CUNNINGHAM and CONNORS concurred in the judgment and opinion.