             NOTICE
                                      2015 IL App (5th) 140215
 Decision filed 01/21/15.   The
 text of this decision may be              NO. 5-14-0215
 changed or corrected prior to
 the filing of a Petition for
 Rehearing or the disposition of              IN THE
 the same.

                                   APPELLATE COURT OF ILLINOIS

                               FIFTH DISTRICT
________________________________________________________________________

CONNIE L. BOWMAN,                           )     Appeal from the
Special Administrator of the Estate of      )     Circuit Court of
Char L. Bowman, Deceased,                   )     Jefferson County.
                                            )
      Plaintiff-Appellant,                  )
                                            )
v.                                          )     No. 13-L-41
                                            )
MICHAEL D. OTTNEY,                          )     Honorable
                                            )     David K. Overstreet,
      Defendant-Appellee.                   )     Judge, presiding.
________________________________________________________________________

         JUSTICE WELCH delivered the judgment of the court, with opinion.
         Justice Schwarm concurred in the judgment and opinion.
         Justice Stewart dissented, with opinion.

                                        OPINION

¶1       The underlying cause of action giving rise to this certified question on appeal is

for money damages, alleging medical malpractice.           The plaintiff, Connie Bowman,

special administrator of the estate of Char L. Bowman, deceased, filed a complaint

against Michael D. Ottney, D.O., and Core Physician Resources, P.C., under Jefferson

County circuit court designation 09-L-28. Judge David K. Overstreet made substantive

rulings in the case, such as in regards to the plaintiff's efforts to obtain materials and


                                              1
whether certain witnesses' opinions should be barred or limited. This court answers the

certified question in the affirmative.

¶2     On March 27, 2013, the plaintiff moved to voluntarily dismiss the claim pursuant

to section 2-1009 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1009 (West

2012)). On April 1, 2013, that motion was granted without prejudice as to all defendants.

¶3     On August 21, 2013, the plaintiff filed a new complaint under the designation 13-

L-41, pursuant to section 13-217 of the Code (735 ILCS 5/13-217 (West 2012) (stating

that a plaintiff who has voluntarily dismissed an action may commence a new action

within one year)). The complaint alleged that "[t]his action was previously filed and

voluntary dismissed on April 1, 2013," and asserted the same causes of action, but named

only Ottney as a defendant. Coincidentally, the plaintiff's action was again assigned to

Judge Overstreet. Prior to any rulings by Judge Overstreet, on September 3, 2013, the

plaintiff filed a motion for substitution of judge pursuant to section 2-1001(a) of the Code

(735 ILCS 5/2-1001(a) (West 2012)). The defendant filed an objection to the plaintiff's

motion, noting that Judge Overstreet had made prior substantive rulings in the voluntarily

dismissed action.

¶4     A hearing was held on January 21, 2014. The plaintiff asserted that because this

case was a new action and her motion was properly made, her right to a substitution of

judge is absolute. The defendant responded that several substantive rulings had been

made in the dismissed case, giving the plaintiff an opportunity to "test the waters" as to

the court's inclination toward her. Noting that a growing body of law expresses concern

about voluntary dismissals in the face of dispositive motions, the defendant stated that the
                                             2
Third District had recently ruled that a trial court may properly deny a motion for

substitution of judge as of right where the plaintiff "tested the waters" in the voluntarily

dismissed action. 1

¶5     The court noted that prior Fifth District rulings indicated that substitution would

be improper, but acknowledged that no direct authority existed where a new and distinct

cause of action is the subject of the motion. The court found Ramos to be "honest and

persuasive" and was concerned that to rule otherwise "would allow plaintiffs to make an

end run behind *** the prior voluntary dismissal, and I think that [the ruling in Ramos is]

consistent with *** [the] limited cases we do have in the Fifth District." In an order filed

on February 27, 2014, the court denied the plaintiff's motion for substitution of judge.

¶6     This case comes before us pursuant to Illinois Supreme Court Rule 308 (eff.

Feb. 26, 2010). The circuit court certified the following question for our review: "In a

case which had previously been voluntarily dismissed pursuant to 735 ILCS 5/2-1009 and

then subsequently re-filed, does the trial court have discretion to deny a Plaintiff's

immediately filed Motion for Substitution of Judge, brought pursuant to 735 ILCS 5/2-

1001, based on the fact that the Court had made substantive rulings in the previously

dismissed case?"

¶7     As a question certified by the circuit court to this court pursuant to Supreme Court




       1
           We discuss this case, Ramos v. Kewanee Hospital, 2013 IL App (3d) 120001, in

our opinion below.

                                             3
Rule 308 must only involve a question of law, our review is de novo.              Tri-Power

Resources, Inc. v. City of Carlyle, 2012 IL App (5th) 110075, ¶ 9.

¶8     In conjunction with the relevant case law, we are asked to interpret section 2-

1001(a) of the Code of Civil Procedure, which reads as follows:

              "§ 2-1001. Substitution of judge.

              (a) A substitution of judge in any civil action may be had in the following

       situations:

                     ***

                     (2) Substitution as of right. When a party timely exercises his or her

              right to a substitution without cause as provided in this paragraph (2).

                            (i) Each party shall be entitled to one substitution of judge

                     without cause as a matter of right.

                            (ii) An application for substitution of judge as of right shall be

                     made by motion and shall be granted if it 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 ***." 735 ILCS 5/2-

                     1001(a) (West 2012).

¶9     The plaintiff asserts that because case No. 13-L-41 is a new and distinct action

from the voluntarily dismissed case No. 09-L-28, Judge Overstreet had no discretion to

deny her motion for substitution of judge. Indeed, the law fully supports the plaintiff's

assertion that her voluntary dismissal of case No. 09-L-28 terminated that action in its

entirety, and that the original and re-filed cases are completely distinct actions. Dubina v.
                                               4
Mesirow Realty Development, Inc., 178 Ill. 2d 496, 503-04 (1997). Further, the plaintiff

correctly notes that civil litigants in Illinois are entitled to one substitution of judge

without cause as a matter of right, so long the motion is "timely presented" pursuant to

the requirements of section 2-1001(a)(2)(ii) of the Code (735 ILCS 5/2-1001(a)(2)(ii)

(West 2012)).

¶ 10   However, we cannot agree with the plaintiff that "the determining factor is

whether or not the judge in question has made rulings of substance in the existing case."

(Emphasis in original.) While the statute seemingly provides a bright-line rule regarding

substitution, the defendant correctly points out that a "weight of appellate authority" in

Illinois has concluded that even in the absence of a substantial ruling, a trial court may

deny a motion for substitution as of right if the litigant has had an opportunity to "test the

waters" and form an opinion as to the court's disposition toward his or her case. Schnepf

v. Schnepf, 2013 IL App (4th) 121142, ¶ 30.

¶ 11   The crux of the matter, then, is our court's historical application of this doctrine.

Illinois courts have expressed varying concerns regarding the statutes' potential for abuse

where a judge "tips his hand," thus providing a litigant the opportunity to "test the

waters" as to the outcome of his case with that particular judge. Our supreme court has

explicitly condemned the practice, noting the "serious [potential for] abuse of the venue

act." In re Marriage of Kozloff, 101 Ill. 2d 526, 530-31 (1984) (reversing the appellate

court ruling and holding that post-decree petitions do not constitute new actions, but

merely continuations of the dissolution proceeding, and a substantive ruling on one

petition will preclude a change of venue as of right on another). In support of its
                                         5
decision, the court noted the potentially problematic results if it accepted the appellate

court's position:

       "[I]f after one change of venue on a particular petition the litigant is still unhappy,

       he could replace the second judge simply by voluntarily dismissing his petition

       and refiling a substantially similar petition and another motion for change of

       venue.       The venue act's prohibition against more than one change of venue

       [citation] would be rendered meaningless since, under the appellate court rule, the

       second petition would constitute a new proceeding. [Citation.] Taken to its

       logical extreme, a resourceful litigant could repeat the process until he found a

       judge he considered sympathetic to his cause. Obviously, such maneuvering is

       anathematical to the efficient use of judicial resources." Id. at 531.

¶ 12   However, the Fourth District has held that the right to substitution "is absolute,

and the trial court does not have discretion to consider whether the movant had an

opportunity to 'test the waters.' " Illinois Licensed Beverage Ass'n v. Advanta Leasing

Services, 333 Ill. App. 3d 927, 933 (2002). Our sister court noted that the Kozloff court

held only that post-decree petitions were not new proceedings, and "did not hold, as a

general matter, that the mere opportunity to form an opinion as to the judge's disposition

toward a case barred the litigant from thereafter seeking a change of venue." Schnepf,

2013 IL App (4th) 121142, ¶ 36. 2


       2
           The court noted that Public Act 87-949 amended section 2-1001(a)(2) to provide

each party the right to one substitution without cause, which eliminated the requirement

                                              6
¶ 13   However, the relevant Fifth District case law on point begs the opposite

conclusion. We have favorably applied the "test the waters" doctrine, noting that "[a]

party is not free to 'judge shop' until he finds a jurist who is favorably disposed to his

cause of action." (Internal quotation marks omitted.) City of Granite City v. House of

Prayers, Inc., 333 Ill. App. 3d 452, 461 (2002). A well-reasoned application of the

doctrine was opined in Niemerg v. Bonelli, 344 Ill. App. 3d 459 (2003). In that case, this

court held that like the post-decree divorce proceedings in Kozloff, a section 2-1401

proceeding (735 ILCS 5/2-1401 (West 2000)) is not a new cause of action for purposes of

a section 2-1001(a)(2) motion. Niemerg, 344 Ill. App. 3d at 466. The appellants argued

that since a section 2-1401 motion to vacate is a new action subject to the usual rules of

civil procedure, and since section 2-1001(a)(2) allows a substitution of judge as a matter

of right in a new action where no substantial ruling has been made, it follows that a party

filing a section 2-1401 motion must be granted a substitution of judge, "provided that the

trial judge has not ruled upon any substantial issue in the section 2-1401 proceeding."

(Emphasis in original.) Id. at 464-65. Favorably citing to the rationale of Kozloff, we

noted that while the appellants' argument appears logical, "it is clear to us that to allow a


that a party provide a reason for seeking a substitution. See Pub. Act 87-949, § 1 (eff.

Jan. 1, 1993). The Schnepf court strongly condemned the "test the waters" doctrine,

noting that it was "rendered obsolete 20 years ago by introduction of the right to a

substitution of judge without cause under the new version of section 2-1001(a)(2)."

Schnepf, 2013 IL App (4th) 121142, ¶ 50.

                                             7
substitution of judge in a section 2-1401 proceeding would defeat the policy behind the

rule requiring a motion for substitution to be presented before the judge has ruled on any

substantial issue in the case: to preclude litigants from 'judge-shopping.' " Id. at 465.

¶ 14   The Third District, too, has explicitly found that courts may consider "all the

circumstances surrounding the pretrial proceedings," and a motion for substitution of

judge by right may be properly denied if the litigant had an opportunity to "test the

waters." In re Estate of Gay, 353 Ill App. 3d 341, 344 (2004). In Gay, the court held that

even if no substantial rulings were made by the trial court, the motion was untimely

because it was made after the appellant had an opportunity during pretrial conferences to

form an opinion as to the judge's reaction. Id. The court recognized that this gave the

appellant a "unique ability to determine the court's attitude concerning certain issues." 3

Id.

¶ 15   What our relevant precedent in the Fifth District has in common is that the courts

were able to rule that the policy behind the rule defeats the seemingly bright-line

language of the statute because the case at bar was not a new and distinct cause of action;


       3
           We note that Justice McDade's concurring opinion sets forth well-reasoned

concerns with the subjectivity and elusiveness of the "testing the waters" doctrine. See

Gay, 353 Ill App. 3d at 345 (McDade, J., specially concurring). McDade opines that

while the majority's result was consistent with case law, "[i]t is a standard that can *** be

easily manipulated by the parties" and appears to leave our courts "poised at the top of a

slippery slope." Id.

                                              8
thus, the motion could be declared untimely pursuant to the statute. See Kozloff, 101 Ill.

2d at 530-31; Niemerg, 344 Ill. App. 3d at 466; In re D.M., 395 Ill. App. 3d 972, 976 (3d

Dist. 2009) (noting that our courts have long held that a motion to substitute is untimely

if it was filed after the judge has ruled on a substantive issue in the case).

¶ 16   However, in its recently reaffirmed adherence to the doctrine, the Third District

Appellate Court held that even where a case is indeed a new action and not the "re-

commencement" of the prior action, the motion for substitution was properly denied

where the plaintiff had the opportunity to "test the waters." Ramos v. Kewanee Hospital,

2013 IL App (3d) 120001. In Ramos, the plaintiff made two jury trial demands, which

were stricken by the court as untimely; after the ruling, the plaintiff voluntarily dismissed

the case. Id. ¶ 20. Six weeks later, the plaintiff filed another action, in which both counts

alleged in the former case were again alleged in the latter. Id. ¶¶ 20-21. The plaintiff

then sought a substitution of judge as of right before any ruling in the latter action, but the

trial court denied the motion. Id. ¶ 21. The appellate court noted that, while there was no

doubt that the latter case was a new and distinct action, the plaintiff had ample

opportunity to "test the waters" in the previous action. Id. ¶¶ 86, 89. Conceding that it

could not be sure whether the derisive language present in the Kozloff rationale was

intended to extend to the present action, or if the critical factor in Kozloff was simply the

fact that the latter action did not constitute a new action, the court concluded, "Our best

guess is that the supreme court would not endorse the exercise of the right to voluntary

dismissal as an end run around the prohibition against judge shopping." Id. ¶ 98.

¶ 17   Bearing the historical application of "testing the waters" in mind, we come to the
                                              9
facts before us. With guidance from our supreme court's rationale in Kozloff, we agree

with the trial court that the Third District's analysis in Ramos is consistent with the

relevant precedent in this appellate court. We therefore hold that a trial court has the

discretion to deny a plaintiff's immediately filed motion for substitution of judge where

the court had made substantive rulings in the previously dismissed case.

¶ 18   We are cognizant of the concerns inherent in this determination, as we cannot

remain in established territory by finding that the current action is a re-commencement of

the previous action. We also remain mindful of the contradiction of these tenets before

us: that the provisions of this statute are to be liberally construed and interpreted to effect

rather than defeat the right of substitution (Beahringer v. Hardee's Food Systems, Inc.,

282 Ill. App. 3d 600, 601 (1996)), yet our courts strongly disfavor allowing a party to

"shop" for a new judge after determining the original judge's disposition toward the case.

City of Granite City, 333 Ill. App. 3d at 461. However, we find additional support for

departing from the black-and-white parameters of section 2-1001(a)(2) in the existence of

another, more well-established exception to this rule, in that a trial court already has the

discretion to deny a motion for substitution of judge if such a motion was made simply to

delay or avoid a trial. See In re Marriage of Paclik, 371 Ill. App. 3d 890, 896 (2007).

¶ 19   Like the Third District, we must simply read Kozloff in conjunction with our

precedent in the Fifth District and glean what we may. While the plaintiff's action is

indeed new and distinct from her previous action, the plaintiff admits to the nearly

identical nature of the two actions in her complaint under the designation 13-L-41. It is

also clear that substantial rulings were made in that previous action, affording the
                                         10
plaintiff her opportunity to "test the waters" with Judge Overstreet. Thus, even if no

substantial rulings were made by the trial court in the plaintiff's second action, the motion

may be considered untimely because it was made after the plaintiff had an opportunity to

form an opinion as to Judge Overstreet's reaction to her cause of action. Frankly, the

plaintiff's strategy was thwarted by chance; a purely coincidental re-assignment to Judge

Overstreet brings this matter to our attention today. We find that we cannot simply

disregard the spirit and purpose of the statute, and we therefore choose to remain

consistent in holding that our courts will not condone attempts to circumvent the venue

rule.



¶ 20    Certified question answered in the affirmative.



¶ 21    JUSTICE STEWART, dissenting.

¶ 22    I respectfully dissent from the opinion of my distinguished colleagues.

¶ 23    The majority acknowledges that a refiled action after a voluntary dismissal "is an

entirely new and separate action, not a reinstatement of the old action." Dubina, 178 Ill.

2d at 504. Further, the majority acknowledges that a litigant in a civil action is entitled to

a substitution of judge as a matter of right prior to a ruling on any substantial issue in the

case, and that the circuit judge in this case had made no rulings in the refiled action. 735

ILCS 5/2-1001(a) (West 2012). Finally, the majority acknowledges that the statutory

right to substitution of judge should be "liberally construed in order to effect rather than

defeat the right of substitution." Beahringer, 282 Ill. App. 3d at 601. Nevertheless, the
                                           11
majority casts aside these principles and follows a Third District case in which the court

expressly grounded its decision upon its "best guess" that the supreme court would

approve denial of a motion for substitution under similar circumstances.

¶ 24   The primary basis for the majority's decision is its approval of the "test the waters"

doctrine. In my view, the "test the waters" doctrine was thoroughly discredited and

properly rejected by the Fourth District in its comprehensive and thoughtful opinion in

Schnepf v. Schnepf, 2013 IL App (4th) 121142. There is a clear disagreement among the

appellate districts on this issue, which should be determined by the supreme court.

¶ 25   In this case, all statutory prerequisites were met in the refiled action and the circuit

judge had no discretion to deny the motion for substitution of judge. I would answer the

certified question in the negative.




                                              12
                                         2015 IL App (5th) 140215

                                             NO. 5-14-0215

                                                 IN THE

                                 APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
______________________________________________________________________________

CONNIE L. BOWMAN,                               )     Appeal from the
Special Administrator of the Estate of          )     Circuit Court of
Char L. Bowman, Deceased,                       )     Jefferson County.
                                                )
      Plaintiff-Appellant,                      )
                                                )
v.                                              )     No. 13-L-41
                                                )
MICHAEL D. OTTNEY,                              )     Honorable
                                                )     David K. Overstreet,
      Defendant-Appellee.                       )     Judge, presiding.
______________________________________________________________________________

Opinion Filed:          January 21, 2015
______________________________________________________________________________

Justices:             Honorable Thomas M. Welch, J.

                  Honorable S. Gene Schwarm, J.,
                  Concurred
                  Honorable Bruce D. Stewart, J.,
                  Dissented
______________________________________________________________________________

Attorney          John J. Hopkins, John J. Hopkins & Associates, P.C., 500 E. 6th Street,
for               P.O. Box 595, Alton, IL 62002
Appellant
______________________________________________________________________________

Attorneys         Brad A. Elward, Heyl, Royster, Voelker & Allen, 124 SW Adams Street,
for               Suite 600, Peoria, IL 61602; Richard K. Hunsaker, Sara A. Ingram, Heyl,
Appellee          Royster, Voelker & Allen, Mark Twain Plaza III, 105 W. Vandalia, Suite
                  100, P.O. Box 467, Edwardsville, IL 62025
______________________________________________________________________________
