Orders denying a substitution of judge must be appealed at the first opportunity on interlocutory appeal of other orders

In a foreclosure action involving Chicago’s infamous “Block 37,” the circuit court entered judgment against the defendant mortgage guarantors. The judgment contained a Rule 304(a) finding of no just reason to delay enforcement or appeal. After the judgment was entered, the lender served citations to discover assets on the defendants. The defendants moved for a substitution of judge as of right in the citation proceedings (to remove the judge who had presided over the foreclosure action), which the court denied. Defendants then timely appealed the judgment against them.

Thereafter, the circuit court imposed charging orders on the defendants’ distributional interests in numerous limited liability companies. The defendants then filed a notice of appeal of that order, as well as the order denying their motion for substitution of judge. Subsequently, the court imposed charging orders on additional limited liability companies and ordered foreclosure of all of the charging orders. The defendants then appealed that order and the denial of their substitution of judge motion.

All of the defendants’ noted appeals were consolidated. The appellate court first addressed the timeliness of the defendants’ appeal of the order denying a substitution of judge. The lender asserted that the defendants had forfeited appellate review of that issue by failing to raise it in an earlier appeal. That appeal, heard approximately nine months before the consolidated appeal, affirmed a finding of contempt against the defendants for dissipating assets in violation of the citations to discover assets.

Ordinarily, interlocutory appeals do not bring up for review all orders that the trial court entered up to the date of the order being appealed. However, the court noted that, under Sarah Bush Lincoln Health Center v. Berlin, 268 Ill. App. 3d 184 (1994), an order denying a substitution of judge is different in that it bears “directly upon the question of whether the order on appeal was proper.” In other words, if the court should have granted a substitution of judge, then the subsequent orders are compromised. Therefore, the court held that “because the substitution of judge issue was outcome determinative of the [earlier] appeal, the defendants were required to raise it at that time.” Even though the defendants included the substitution of judge order in not one, but two, notices of appeal, they nevertheless forfeited review of the substitution of judge order by their failure to do so at the earliest opportunity.

Bank of America, N.A. v. Freed, 2012 IL App (1st) 110749.