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SIXTH DIVISION
December 14, 2001

Following a jury trial, plaintiff, Susan Nasrallah, was awarded $11,990.20 indamages for injuries sustained in an automobile accident involving plaintiff anddefendant, Salvador Davilla. Defendant now appeals from the judgment entered on thejury verdict and the order denying its posttrial motion. We reverse and remand.

Defendant raises two issues on appeal. The first issue is whether the trial courtimproperly denied defendant's motion for substitution of judge as a matter of right. Thesecond issue is whether the trial judge improperly gave IPI Civil 3d No. 5.01 (IllinoisPattern Jury Instructions, Civil, No. 5.01 (3d ed.1995) (hereinafter IPI Civil 3d)) to thejury.

I. Substitution of Judge

The first issue raised by defendant on appeal is whether the trial court improperlydenied defendant's motion for a substitution of judge. Section 2-1001 of the Code ofCivil Procedure provides, in pertinent part:

"(a) A substitution of judge in any civil action may be had in the followingsituations:

* * *

(2) Substitution as of right. When a party timely exercises his orher right to a substitution without cause as provided in this paragraph (2).

(i) Each party shall be entitled to one substitution of judgewithout cause as a matter of right.

(ii) An application for substitution of judge as of right shall bemade by motion and shall be granted if it is presented before trialor hearing begins and before the judge to whom it is presented hasruled on any substantial issue in the case, or if it is presented byconsent of the parties." 735 ILCS 5/2-1001(a)(2) (West 1998).

Where these minimal requirements are met, a party's right to substitution of judgewithout cause is absolute. In re Dominique F., 145 Ill. 2d 311, 318-19, 583 N.E.2d 555(1991).

In its written order denying defendant's posttrial motion, the trial court stated thatit denied the motion for substitution of judge for two reasons: (1) the court had madeand indicated substantial rulings in the case; and (2) the court believed the motive forthe motion was delay.

The substantial rulings identified by the court at the time it denied the motion forsubstitution of judge were the setting of the treating physician's testifying fee and thecourt's statement that since the appellate court rendered its decision in Perkins v.Harris, 308 Ill. App. 3d 1076 (1999), the court generally awarded such fees incurred inconnection with evidence depositions as taxable costs.

A trial court has no discretion to deny a proper motion for substitution of judge asof right. In re Dominique F., 145 Ill. 2d at 319, 583 N.E.2d at 558. The issue of whetherthere was a ruling on a substantial issue in the case is a question of law. Rodisch v.Commacho-Esparza, 309 Ill. App. 3d 346, 350, 722 N.E.2d 326, 329 (1999). Thus, ourreview is de novo. Lucas v. Lakin, 175 Ill. 2d 166, 171, 676 N.E.2d 637 (1997).

A ruling is considered substantial when it is directly related to the merits of thecase. Bonnie Owen Realty, Inc. v. Cincinnati Insurance Co., 283 Ill. App. 3d 812, 821,670 N.E.2d 1182 (1996). The trial court indicated in its written order that because thetreating physician's testifying fee was so much compared to the damages sought in thecase, it must be substantial. This conclusion is erroneous. The trial court's ruling onthe evidence deposition fee did not relate to the merits of the case. A motion forsubstitution of judge must be granted where the trial court has not "ruled on anysubstantial issue in the case." 735 ILCS 5/2-1001(a)(2) (West 1998). There is anexception where the movant "had an opportunity to test the waters and form an opinionas to the court's reaction to his claim" (In re Marriage of Petersen, 319 Ill. App. 3d 325,338, 744 N.E.2d 877, 887 ( 2001)); however, that is not the case here. The rulingsetting the evidence deposition fee did not go to any question of evidence to beadmitted or indicate any inclination of the judge toward the merits or disposition of thecase. The ruling in no way implicated the rights of the parties at trial.

Although the order denying defendant's motion for substitution of judge indicatesthat the reason the motion was denied was because of the decision regarding theevidence deposition fee, the court indicated in its order denying defendant's posttrialmotion that, upon further reflection, the fact that the court had allowed plaintiffadditional time for the answering of Rule 213 (155 Ill. 2d R. 213) interrogatoriesconstituted yet another substantial ruling. We disagree.

In Frede v. McDaniels, 37 Ill. App. 3d 1053, 1055, 347 N.E.2d 259 (1976), thecourt explained that even though a pretrial conference necessarily involved certainaspects of the merits of the case, no rulings were made on substantive issues wherethe judge set dates for answering interrogatories and responding to a motion forsummary judgment. Here, even though faulty Rule 213 responses, or no Rule 213responses at all, could lead to a witness being barred from testifying as to certainevidence, allowing additional time to answer interrogatories did not indicate how thejudge might rule, when and if presented with a motion to bar, based upon nondisclosurein Rule 213 interrogatories. In the instant case, defendant's motion complied with thestatutory requirements and the court made no substantial rulings prior to defendant'smotion.

The statutory right of substitution of judge is to be liberally construed. Sahoury v.Moses, 308 Ill. App. 3d 413, 414, 719 N.E.2d 1157, 1158 (1999). The reasoningbehind the principle that a timely and properly filed petition confers a mandatory rightfor substitution of judge which the trial court has no discretion to deny is that one shouldnot be compelled to plead his cause before a judge who is prejudiced, whether actuallyor only by suspicion. In re Marriage of Abma, 308 Ill. App. 3d 605, 610, 720 N.E.2d645, 649 (1999). Nonetheless, an exception to this absolute right to a substitution ofjudge has been recognized where it is shown that the motion was made simply to delayor avoid trial. Sahoury v. Moses, 308 Ill. App. 3d at 414, 719 N.E.2d at 1158.

The trial court indicated that the motion was made with a dilatory motive becauseit was brought so close to the trial date. No other evidence was offered, nor was any inthe record. Furthermore, plaintiff did not raise the issue of delay in her response todefendant's motion. There is nothing to indicate that the motion was filed solely todelay or avoid trial. Indeed, in the instant case the true motive was abundantly clear. Defense counsel did not want to try this case, or any other case, before the trial judge.

Even though the present case was pending for some time before the trial judge,the motion for substitution was brought along with many other motions for substitutionas a pattern and practice of not trying cases before this trial judge. As shown in thetranscript of defendant's motion for a new trial, defense counsel presented evidencethat, as a matter of course, defense counsel asked for a substitution of judge from thistrial judge on a regular basis beginning on September 1, 2000. Two motions weregranted four days before trial, one motion three days before, one motion two daysbefore, and one motion was granted the day before trial. In fact, on the date thatdefendant's motion was denied in this case, the trial judge granted five other motionsfor substitution of judge as a matter of right to defense counsel's firm, including onecase scheduled to be tried seven days from that date and another case scheduled to betried on the same date as the present case.

The trial court acknowledged these other cases but nonetheless concluded thatthe other cases, being considerably newer, were not nearly as likely to go to trial on thedate set because older cases set on the same day would be given priority. The presentcase, on the other hand, had eight prior trial dates and was set as a priority trial. Whileit may be true that the substitution of judge in this case may very likely have resulted ina delay, the consideration before the court was whether that delay was the motive forthe motion. As we have explained, delay was not the motive. Rather, defensecounsel's sole motive was that he did not want to try any cases before this trial judge.

In view of the above, the trial court was required to grant the motion forsubstitution of judge and its refusal to do so was reversible error. Although thisconclusion suffices as a basis for reversal and remand for a new trial before a differentjudge, we shall address defendant's remaining issue since it is likely to occur uponremand.

II. Denial of Jury Instruction Defendant's second contention of error relates to the court's allowance of the"missing witness" instruction. The instruction, IPI Civil 3d No. 5.01 (Illinois Pattern JuryInstructions, Civil, No. 5.01 (3d ed.1995)) provides as follows:

"If a party to this case has failed [to offer evidence] [to produce a witness]within his power to produce, you may infer that the [evidence] [testimony of thewitness] would be adverse to that party if you believe each of the followingelements:

1. The [evidence] [witness] was under the control of the party andcould have been produced by the exercise of reasonable diligence.

2. The [evidence] [witness] was not equally available to an adverseparty.

3. A reasonably prudent person under the same or similarcircumstances would have [offered the evidence] [produced the witness] ifhe believed [it to be] [the testimony would be] favorable to him.

4. No reasonable excuse for the failure has been shown."

We first explain the standard of review that applies to our determination ofdefendant's second contention of error. The decision whether to give IPI Civil 3d No.5.01, as is the case with all jury instructions, lies within the sound discretion of the trialcourt. Taylor v. Kohli, 162 Ill. 2d 91, 97, 642 N.E.2d 467, 469 (1994); Simmons v.University of Chicago Hospitals & Clinics, 162 Ill. 2d 1, 7, 642 N.E.2d 107, 110 (1994).That decision will not be reversed absent a clear abuse of discretion. Simmons, 162 Ill.2d at 7, 642 N.E.2d at 110. "An abuse of discretion occurs where no reasonableperson would agree with the position adopted by the trial court. " Schwartz v. Cortelloni,177 Ill. 2d 166, 176, 685 N.E.2d 871, 876 (1997). "It is important to remember that therole of a reviewing court is not to substitute its judgment for that of the trial court or evento determine whether the trial court exercised its discretion wisely." Woolverton v.McCracken, 321 Ill. App. 3d 440, 445, 748 N.E.2d 327, 331 (2001). Moreover, areviewing court will reverse and grant a new trial based on a trial judge's error ininstructing the jury only when the error resulted in prejudice to the appealing party.Wilkerson v. Pittsburgh Corning Corp., 276 Ill. App. 3d 1023, 1030, 659 N.E.2d 979,984 (1995).

Defendant has presented three separate arguments on appeal in support of hiscontention that IPI Civil 3d No. 5.01 was wrongly given which can be summarized asfollows: that IPI Civil 3d No. 5.01 does not apply to the failure of a party to a civil suit totestify in his own behalf, that parts three and four of the four-part test of IPI Civil 3d No.5.01 have not been met, and that IPI Civil 3d No. 5.01 should not have been givenbecause defendant's testimony was merely cumulative. We shall address eachargument separately.

A. IPI 5.01 Does Not Apply to the Failure of a Party to a Civil Suit to Testify
In His Own Behalf

Defendant argues that the trial court abused its discretion in giving IPI Civil 3dNo. 5.01 by disregarding binding Illinois case law. Specifically, citing Ronan v.Rittmueller, 105 Ill. App. 3d 200, 207, 434 N.E.2d 38, 44 (1982), defendant asserts thatthe presumption or inference against a party failing to produce proof within his powerdoes not apply to the failure of a party to a civil suit to testify in his own behalf. Defendant has failed to show how the trial court ignored Ronan. Rather, as the trialcourt specifically explained in its written order, Ronan was distinguishable. We agreewith the trial court.

Here, plaintiff wanted to call defendant and had served defendant with a noticepursuant to Supreme Court Rule 237 (166 Ill. 2d R. 237). Defendant did not testify attrial and also admitted negligence. In Ronan, the trial court stated:

"It has long been the law in Illinois that the presumption or inference against aparty failing to produce proof apparently within his own power does not apply tothe failure of a party to a civil suit to testify in his own behalf. [Citation.] There areother motives that may influence a party to forego becoming a witness in his ownbehalf than the consciousness that the facts within his knowledge would bedamaging if disclosed and the presumption that testimony would have beenprejudicial to the parties' case arises only when that party has willfully withheldsuch evidence." Ronan v. Rittmueller, 105 Ill. App. 3d 200, 207-08, 434 N.E.2d38, 44 (1982).

But as the trial court explained, unlike the facts in Ronan, and unlike the facts in Villageof Princeville v. Hitchcock, 101 Ill. App. 588, 591-92 (1902), which was the case reliedupon by the Ronan court, defendant here did not simply choose not to testify in his owncase in his own behalf. Instead, in not testifying, defendant failed to comply withplaintiff's Rule 237 notice to compel the appearance of defendant at trial. Thus, we arenot merely dealing with a party who chose not to testify in his own behalf but instead aparty who willfully failed to appear in response to plaintiff's formal request that heappear to testify in plaintiff's case.

In asserting that "[t]he trial court abused its discretion in disregarding bindingIllinois case law" and also that "there was no willful withholding of [defendant's]testimony," defendant fails to acknowledge and does not directly address the distinctionnoted by the trial court. As the trial court explained, the instant case did involve a willfulwithholding of evidence as a result of defendant's failure to appear pursuant to Rule237. Where there is a wilful withholding of evidence after the opposing party provides anotice to produce such evidence, as here, the adverse presumption arises. See, e.g.,Estate of Whittington v. Emdeko National Housewares, Inc., 96 Ill. App. 3d 1007, 1014,422 N.E.2d 26, 32 (1981), citing Haynes v. Coca Cola Bottling Co. of Chicago, 39 Ill.App. 3d 39, 350 N.E.2d 20 (1976), citing Village of Princeville v. Hitchcock, 101 Ill. App.588 (1902). This conclusion comports with the principle that, in a civil proceeding,unlike a criminal proceeding, a party is required to testify or suffer the consequencessuch that if a party refuses to testify, the trier of fact may draw negative inferencesagainst the party. People v. Bell, 296 Ill. App. 3d 146, 153, 694 N.E.2d 673, 679(1998), citing Baxter v. Palmigiano, 425 U.S. 308, 318, 47 L. Ed. 2d 810, 821, 96 S. Ct.1551, 1558 (1976); see also Shea v. Civil Service Comm'n, 224 Ill. App. 3d 282, 287,586 N.E.2d 512, 516 (1991) ("The trial court in a civil case may draw negativeinferences from a litigant's refusal to testify").

Defendant acknowledges, but offers his own interpretation of the effect of, hisRule 237 violation. Supreme Court Rule 237(b) provides in pertinent part:

"The appearance at the trial of a party or a person who at the time of trialis an officer, director, or employee of a party may be required by servingthe party with a notice designating the person who is required to appear. ** * Upon a failure to comply with the notice, the court may enter any orderthat is just, including any order provided for in Rule 219(c) that may beappropriate." 166 Ill. 2d R. 237(b).

Defendant asserts that because he did not appear at trial, he admitted negligence,knowing that the most common sanction for failure to appear at trial for a Rule 237violation is that the question of negligence is directed against the missing defendant. Defendant acknowledges that Supreme Court Rule 237 allows for any sanction underSupreme Court Rule 219(c). Defendant argues, however, that nowhere in Rule 219(c)(166 Ill. 2d R. 219(c)) is the option of giving IPI Civil 3d No. 5.01. We find thisinterpretation unavailing.

Where counsel presents his adversary with a Rule 237 notice to produce, he hasthe right to assume that his opponent will comply. Bianchi v. Mikhail, 266 Ill. App. 3d 767, 776, 640 N.E.2d 1370, 1376 (1994). Pursuant to Rule 237(b), "[u]pon a failure tocomply with the notice, the court may enter any order that is just, including any orderprovided for in Rule 219(c) that may be appropriate." 166 Ill. 2d R. 237(b). The remedyfor noncompliance with Rule 237(b) is within the sound discretion of the trial court.Cohn v. Northern Trust Co., 250 Ill. App. 3d 222, 621 N.E.2d 132 (1993). Just as thegiving of an adverse inference instruction as found in IPI Civil 3d No. 5.01 is anapproved remedy for a party's failure to produce documents (Buehler v. Whalen, 70 Ill.2d 51, 374 N.E.2d 460)(1977); Cohn v. Northern Trust Co., 250 Ill. App. 3d 222, 621N.E.2d 132(1993)), we believe the instruction was an appropriate remedy under thefacts of the present case.

Where a plaintiff requires testimony of a defendant who failed to appear afterproper notice, a presumption of liability arises, and it is within the trial court's discretionto enter a sanction of default judgment. Merrill Lynch, Pierce, Fenner & Smith, Inc. v.Story, 218 Ill. App. 3d 829, 578 N.E.2d 1129 (1991). Here, defendant admitted liability,and no default judgment was necessary. Nonetheless, the same authority that allowsentry of default allows a trial court to give IPI Civil 3d No. 5.01. Although the trial courtindicated that its decision to give IPI Civil 3d No. 5.01 was not intended as a sanction,we believe that, under the circumstances of the present case, where defendant willfullyfailed to comply with plaintiff's Rule 237 notice, the trial court would not have abused itsdiscretion in allowing IPI Civil 3d No. 5.01 as a sanction.

B. Parts Three and Four of the Four-Part Test of IPI Civil 3d No. 5.01

Defendant also contends that parts three and four of the four-part test of IPI Civil3d No. 5.01 have not been met. The third part of the four-part test of IPI Civil 3d No.5.01 is whether a reasonably prudent person would have called the witness if hebelieved the testimony would be favorable to him. With regard to testimony as to theforce of the impact, clearly testimony from defendant that would minimize the force ofthe impact might help to undermine plaintiff's damages claim. Thus, a reasonablyprudent person would have called defendant if he believed that his testimony on forceof impact would have been favorable to minimizing the force of impact. Here, however,we have the unique situation where both parties were aware that defendant had alreadystated at arbitration that the impact was "an impact a little bit that strong." As the recordbelow indicates, although a stipulation by the parties may have alleviated this situation,no stipulation was made. Although it is not clear whether defendant's vague testimonywould have been favorable to either party's case, we cannot say that the trial courtabused its discretion in determining that part three of the test was met.

Contrary to defendant's assertion, part four of the test has been met because noreasonable excuse for the failure to produce defendant was shown to the court. Whilethe record contains allusions to the fact that defendant was suffering from depressionand that defense counsel were apparently attempting to obtain an affidavit, it isundisputed that no affidavit was forthcoming. Now, on appeal, for the first time,defendant contends that a translator would have been required and the expense of theinterpreter was a reasonable excuse for not producing defendant. However, we havealready explained that this case, unlike Ronan, does not involve a party who chose notto testify in his own behalf (and presumably would have had to incur the expense of atranslator, if necessary). Here, defendant failed to appear in response to plaintiff's Rule237 notice to compel. In the context of complying with plaintiff's notice, "Rule 237simply requires that a witness 'appear,' * * * there is no provision that the witnessprovide an interpreter, if one is necessary." West Bend Mutual Insurance Co. v.Herrera, 292 Ill. App. 3d 669, 675, 686 N.E.2d 645, 649 (1997). Moreover, defensecounsel never claimed before the trial court that the reason for the nonappearance wasthe expense of the interpreter. Thus, this novel argument of defendant regarding thecost of an interpreter, first presented on appeal, although it does not constitute areasonable excuse, has been waived.

C. IPI Civil 3d No. 5.01 Should Not Have Been Given Because Defendant's
Testimony Was Merely Cumulative.

On appeal, defendant contends that IPI Civil 3d No. 5.01 should not have beengiven because defendant's testimony was merely cumulative. Our review of the recordreveals that this argument was not raised before the trial court.⁽¹⁾ An argument notraised in the circuit court is generally considered waived for purposes of appeal. Snowv. Dixon, 66 Ill. 2d 443, 453, 362 N.E.2d 1052 (1977). Plaintiff has not addresseddefendant's argument, nor has plaintiff contended the issue is waived. Although waiveris a limitation on the parties, not upon the jurisdiction of the reviewing court (Herzog v.Lexington Township, 167 Ill. 2d 288, 300, 657 N.E.2d 926 (1995)), we nonethelessconclude that defendant has waived this argument.

In view of the foregoing, although the trial court did not abuse its discretion ingiving IPI Civil 3d No. 5.01, because the trial court erred in denying defendant's timelymotion for a substitution of judge as of right, we reverse and remand this cause for anew trial before a different judge.

Reversed and remanded.

O'BRIEN and O'MARA FROSSARD, JJ., concur.

1. We base this observation on our review of the transcript of the hearing on theposttrial motion and the trial court's written memorandum order and opinion. Althoughthe transcript of the hearing on defendant's posttrial motion indicates it was in writing,the record on appeal contains no copy of defendant's posttrial motion.