                                                                                 THIRD DIVISION
                                                                                 December 27, 2017

2017 IL App (1st) 172045

No. 1-17-2045

ANGELA WILLIAMS, a Minor, by Her Father and                   )       Appeal from the
Next Friend RICHARD WILLIAMS, and                             )       Circuit Court of
REGINA HOLLOWAY,                                              )       Cook County.
                                                              )
       Plaintiffs-Appellees,                                  )
                                                              )
       v.                                                     )       No. 17 L 3861
                                                              )
GREGORY LEONARD, Lakeshore Recycling                          )
Systems, LLC, and LRS Holdings, LLC,                          )
                                                              )
       Defendants.                                            )       Honorable
                                                              )       William E. Gomolinski,
(Gregory Leonard, Defendant-Appellant.)                       )       Judge Presiding.

       JUSTICE HOWSE delivered the judgment of the court, with opinion.
       Justices Fitzgerald Smith and Lavin concurred in the judgment and opinion.

                                             OPINION

¶1     This case presents a matter of first impression for this court: whether a defendant may

move for substitution of judge as a matter of right under our supreme court’s decision in

Bowman v. Ottney, 2015 IL 119000, when a plaintiff has voluntarily dismissed her case after the

trial court has ruled on substantive issues in the case and then refiled the same case against the

same defendant. Stated differently, the question is whether our supreme court limited the

proscription on motions for substitution of judge as a matter of right in refiled proceedings

following voluntary dismissal, where the refiled case is assigned to the same trial judge who had

ruled on substantive issues in the original case, to the plaintiff who voluntarily dismissed the

case, or whether the defendant retains the right to seek a substitution of judge as a matter of right

in the refiled case. We answer in the negative and affirm the trial court’s judgment denying

defendant’s motion for substitution of judge in this case.
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¶2                                       BACKGROUND

¶3     The resolution of the issues presented by this appeal is governed by the application of the

law to undisputed facts. In August 2015, plaintiffs filed a complaint (original complaint) against

defendant, Gregory Leonard, and later an amended complaint (amended complaint) adding

Leonard’s employers as defendants. Neither plaintiffs’ original complaint nor their amended

complaint contained a jury demand. In October 2015, plaintiffs filed a motion for leave to file a

late jury demand, which the trial court denied for reasons not germane to the issues on appeal. In

November 2016, plaintiffs filed a second amended complaint, and later that month employer-

defendants moved to dismiss certain counts. In February 2017, the trial court granted employer-

defendants’ motion to dismiss with prejudice. In April 2017, plaintiffs moved for voluntary

dismissal of their second amended complaint (hereinafter Williams I). The trial court granted the

motion for voluntary dismissal.

¶4     Days later, plaintiffs refiled their complaint (hereinafter Williams II) pursuant to section

13-217 of the Code of Civil Procedure (Code) (735 ILCS 5/13-217 (West 2016)). The complaint

in Williams II only adds a jury demand to plaintiffs’ claims. The clerk of the circuit court

assigned Williams II to the same trial judge who presided over the case under Williams I pursuant

to an administrative order of the circuit court. In May 2017, defendant 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 2016)). Plaintiffs objected to defendant’s motion to substitute judge based

on (1) the aforementioned administrative order and (2) our supreme court’s decision in Bowman.

Plaintiffs argued that under Bowman their refiled case was not a new case for purposes of section

2-1001(a)(2) and, since the trial judge had ruled on substantial issues “in the case,” defendant

was precluded from moving for substitution of judge as a matter of right.

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¶5      Relying on Bowman, the trial judge denied defendant’s motion to substitute judge as a

matter of right. The trial judge recognized that (1) whether Bowman applied to the defendant in a

voluntarily dismissed, then refiled, case was a significant question and (2) if he was wrong and

improperly denied defendant’s motion to substitute judge as a matter of right, all of his

subsequent orders would be void. With that in mind, the judge stated he would enter whatever

orders were needed to allow defendant to appeal his ruling. Defendant filed a notice of

interlocutory appeal as of right pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1,

2017). The trial court entered an order on its own motion, staying proceedings pending resolution

of this appeal. Defendant filed a motion in this court, seeking a finding that we have jurisdiction

to hear this appeal pursuant to Rule 307(a)(1). This court granted the motion, finding we have

jurisdiction to hear this appeal.

¶6      For the following reasons, we affirm the trial court’s judgment denying defendant’s

motion to substitute judge as a matter of right and hold, pursuant to our supreme court’s decision

in Bowman, that where a plaintiff voluntarily dismisses a case after the trial judge has ruled on

substantial issues then refiles the same case against the same defendant, neither party may move

to substitute judge as a matter of right under section 2-1001(a)(2) of the Code in the refiled case.

¶7                                          ANALYSIS

¶8      Defendant argues the trial court erroneously denied his motion for substitution of judge

because the motion was timely, he made the motion before trial or hearing on Williams II began,

and he made the motion before the trial judge “had ruled on any substantial issue in Williams II.”

Defendant argues his motion satisfied all of the statutory criteria, thus the trial court was without

discretion to deny it, and nothing in our supreme court’s decision in Bowman, 2015 IL 119000,

changes that fact.



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¶9     We review the denial of a motion to substitute judge as a matter of right de novo, and our

review should lean toward favoring, rather than defeating, a substitution of judge. Petalino v.

Williams, 2016 IL App (1st) 151861, ¶ 16. “Illinois courts have held that, when properly made, a

motion for substitution of judge as a matter of right is absolute, and the circuit court has no

discretion to deny the motion.” (Internal quotation marks omitted.) Id. Substitution of judge in a

civil action is controlled by section 2-1001(a)(2) of the Code.

                       “The version of section 2-1001 that is currently in effect was enacted in

               1993, when the General Assembly rewrote the statute. Prior to the 1993

               amendment, the provisions under which a party could request a substitution of

               judge were embodied in the legislative acts governing changes of venue. Ill. Rev.

               Stat. 1991, ch. 110, ¶¶ 2-1001, 2-1002. Under those provisions, a party seeking a

               substitution of judge was required to allege bias or prejudice on the part of the

               judge presiding in the cause.” Bowman, 2015 IL 119000, ¶ 14.

¶ 10   Section 2-1001 now reads, in pertinent part, as follows:

                       “(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

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                               has ruled on any substantial issue in the case, or if it is presented

                               by consent of the parties.

                                       (iii) If any party has not entered an appearance in the case

                               and has not been found in default, rulings in the case by the judge

                               on any substantial issue before the party’s appearance shall not be

                               grounds for denying an otherwise timely application for

                               substitution of judge as of right by the party.” 735 ILCS 5/2­

                               1001(a)(2) (West 2016).

¶ 11   Thus, the requirements for the exercise of the absolute right to substitute a judge are that

(1) the party seeking a substitution timely exercises the right, (2) the party seeking a substitution

files a motion to substitute judge before trial or hearing begins, and (3) the trial judge has not

ruled on any substantial issue in the case. See Petalino, 2016 IL App (1st) 151861, ¶ 18; In re

Estate of Hoellen, 367 Ill. App. 3d 240, 245-46 (2006) (“to prohibit litigants from ‘judge

shopping’ and seeking a substitution only after they have formed an opinion that the judge may

be unfavorably disposed toward the merits of their case, a motion for substitution of judge as of

right must be filed at the earliest practical moment before commencement of trial or hearing and

before the trial judge considering the motion rules upon a substantial issue in the case”). “A

ruling is substantial if it relates directly to the merits of the case.” Petalino, 2016 IL App (1st)

151861, ¶ 18. On the question of timeliness, courts have ruled that “[e]ven when the court has

not ruled on a substantial issue, the motion may be denied if the movant had an opportunity to

test the waters and form an opinion as to the court’s reaction to his claim.” In re Marriage of

Petersen, 319 Ill. App. 3d 325, 338 (2001). But, as our supreme court recognized in Bowman, the

“test the waters” doctrine “has been discredited and rejected” by some courts. Bowman, 2015 IL

119000, ¶ 5 (citing Schnepf v. Schnepf, 2013 IL App (4th) 121142). The Bowman court majority

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passed on the opportunity to opine on the continued validity of the “test the waters” doctrine

because the doctrine was inapplicable in that case. Id. ¶ 27. The dissenting justice in Bowman

expressed his agreement with the rationale of the Schnepf court. Id. ¶ 41 (Kilbride, J.,

dissenting).

¶ 12   In Schnepf, the Fourth District of this court acknowledged that the weight of appellate

court authority supported the position that a trial court may deny a motion for substitution of

judge as of right in the absence of a ruling on a substantial issue if the movant has had an

opportunity to “test the waters” and form an opinion as to the court’s disposition toward the case.

Schnepf, 2013 IL App (4th) 121142, ¶ 30 (citing cases). Nonetheless, the Schnepf court wrote

that the doctrine is “no longer an appropriate judicial supplement to the substitution-of-judge

analysis.” Id. The court conducted a review of the origins and evolution of the doctrine,

including its relationship to the standard for substitution of judge under the prior version of the

statute. The Schnepf court noted a number of cases in which, under the former statute, “the party

petitioning for a change of venue was required to allege that he feared the trial judge was

prejudiced against him, but the procedural facts of the cases suggested a possible ulterior motive

behind the party’s desire to be heard in front of a different judge.” Id. ¶ 39. The Schnepf court

found those decisions, each discussing the “test the waters” doctrine, reflected “the courts’

attempts to stay true to the intended purpose of the old version of section 2-1001(a)(2), which

was to ensure that a litigant ‘not be compelled to plead his cause before a judge who is

prejudiced, whether actually or only by suspicion.’ [Citation.]” Id. The Schnepf court concluded:

                       “The ‘test the waters’ doctrine 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). The doctrine not only does nothing to advance

               the functioning of section 2-1001(a)(2), it affirmatively frustrates its purpose. By

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               inviting the trial judge to make the potentially nuanced, subjective determination

               of whether he has tipped his hand at some point during the proceedings, the

               doctrine undermines the movant’s right to have the fate of his case placed in the

               hands of a different judge.” Id. ¶ 50.

The amendment to section 2-1001 eliminated the requirement a party recite she fears the trial

judge is prejudiced against her and allows each party one substitution without cause as a matter

of right. Id. ¶ 44 (citing In re Marriage of Roach, 245 Ill. App. 3d 742, 746-47 (1993)). In

Roach, the Fourth District wrote:

               “It is interesting that amended section 2-1001 says nothing of situations where a

               movant has been able to test the waters, or where the motion is filed simply for

               delay, although the section does require the motion to be ‘timely.’ The word

               ‘timely’ is not defined, unless we should assume that ‘timely’ means ‘presented

               before trial or hearing begins.’ 735 ILCS 5/2-1001(a)(2)(ii) (West 1992).” In re

               Marriage of Roach, 245 Ill. App. 3d at 746-47.

According to the Schnepf court, this court would later “overlook[ ] the context of [their]

discussion in Roach regarding the ‘test the waters’ doctrine” in our decision In re Marriage of

Abma, 308 Ill. App. 3d 605 (1999) (Schnepf, 2013 IL App (4th) 121142, ¶ 46), wherein this court

stated that “in Roach, the court also noted that even in the absence of a substantial ruling in the

case, a motion for a change of venue may nonetheless be considered untimely if the parties have

had an opportunity to discern the court’s disposition toward the merits of the case.” Abma, 308

Ill. App. 3d at 611 (citing In re Marriage of Roach, 245 Ill. App. 3d at 746). The Schnepf court

wrote that the Fourth District then “attempted to set the record straight regarding the ‘test the

waters’ doctrine” in its decision in Scroggins v. Scroggins, 327 Ill. App. 3d 333 (2002). Schnepf,

2013 IL App (4th) 121142, ¶ 47.Then in that case, the Fourth District found “timely” means

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presented before trial or hearing begins and before the judge to whom it is presented has ruled on

any substantial issue in the case. Scroggins, 327 Ill. App. 3d at 336 (“A party timely exercises his

right if his motion ‘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.’ ” (quoting 735 ILCS 5/2-1001(a)(2)(ii)

(West 2000) and citing In re Marriage of Roach, 245 Ill. App. 3d at 747 (noting lack of

definition of “timely” in statute “unless we should assume that ‘timely’ means ‘presented before

trial or hearing begins.’ 735 ILCS 5/2-1001(a)(2)(ii) (West 1992).”))). Later, Schnepf provided

the rationale to support concluding that “timely” in section 2-1001(a)(2) does not mean “before

the moving party has had an opportunity to ‘test the waters.’ ” The court wrote:

               “Under the old version of the statute, the ‘test the waters’ doctrine was seen by

               many as an appropriate layer of judicial gloss intended to limit changes of venue

               to those necessary to remedy a party’s sincere fear of prejudice. Freedom from

               judicial prejudice was the only stated purpose of the statute, and it was not

               inconsistent with a liberal construction to limit the statute to that purpose. Now,

               however, prejudice is irrelevant to section 2-1001(a)(2), and parties are no longer

               limited to that single basis for seeking a substitution of judge. *** Accordingly,

               when the statutory conditions are met and there is no showing that substitution is

               sought to delay or avoid trial, judges have no authority to inquire into the

               movant’s reason for seeking substitution and to deny the motion if that reason

               does not meet their approval.” Schnepf, 2013 IL App (4th) 121142, ¶ 53.

¶ 13   As stated above, the dissenting justice in Bowman would have adopted the Schnepf

court’s reasoning and rejected the “test the waters” doctrine. In this case, there is no dispute the

trial judge ruled on a substantial issue in Williams I, and plaintiffs do not argue defendant’s

motion to substitute judge as of right should be denied because defendant had the opportunity to

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“test the waters.” Therefore, we do not believe the doctrine will impact our decision one way or

the other.

¶ 14   We must “examine our supreme court’s opinions carefully to determine their breadth or

narrowness of applicability in the context of other cases bearing on the subject and the factual

situation in the case pending before us.” In re Adoption of A.W., 343 Ill. App. 3d 396, 400-01

(2003) (overruled on other grounds). In Bowman, before trial but after the trial judge “issued

rulings on substantial issues,” the plaintiff voluntarily dismissed her complaint pursuant to

section 2-1009 of the Code. Bowman, 2015 IL 119000, ¶ 3. The plaintiff refiled her complaint

pursuant to section 13-217 of the Code, and the refiled case was assigned to the same trial judge.

The plaintiff then “immediately filed a motion for substitution of judge as of right under section

2-1001(a)(2)(ii) of the Code.” Id. The defendant objected to the motion “on the ground that it

was not timely because [the trial judge] had made rulings on substantial issues during the pretrial

proceedings on the [first] complaint prior to its voluntary dismissal.” Id. The defendant argued

the motion for substitution of judge should be denied because the plaintiff had “tested the

waters” during the proceedings on her voluntarily dismissed complaint. Id. The trial court denied

the plaintiff’s motion for substitution of judge but certified the following question for

interlocutory appeal under Illinois Supreme Court Rule 308(a) (eff. Feb. 26, 2010):

               “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?” (Internal quotation marks

               omitted.) Bowman, 2015 IL 119000, ¶ 4.



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¶ 15    The appellate court, relying on the “test the waters” doctrine, answered the question in

the affirmative, with one justice dissenting. Id. ¶ 5 (citing Bowman v. Ottney, 2015 IL App (5th)

140215, ¶¶ 16-17, 24-25). Our supreme court allowed the plaintiff’s petition for leave to appeal.

Id. ¶ 6. On appeal to our supreme court, the plaintiff advocated for a “bright line” rule allowing

substitution as of right in a refiled action before the same judge who presided over the previously

filed action, even after that same judge has made substantive rulings in the previously filed

action. Id. ¶ 11. In support of that position, the plaintiff argued that the phrase “in the case” in

section 2-1001(a)(2)(ii) “necessarily refers only to the case that is currently pending before the

court.” Id. The plaintiff argued that, because the trial judge in her case had not made any

substantive rulings in the refiled case, he had no discretion to deny her motion to substitute as of

right. Id. The defendant responded section 2-1001(a)(2)(ii) must be construed to allow the court

to consider “the overall controversy between the parties” to give effect to its purpose, which

included the prevention of “judge shopping.” Id. ¶ 12. Thus, the defendant argued, the trial judge

had discretion to deny the motion for substitution because the judge “had issued rulings on

substantial matters in the previously dismissed suit.” Id.

¶ 16    Our supreme court noted that section 2-1001(a)(2)(ii) should not be construed in a way

“that permits a party to engage in ‘judge shopping.’ ” Id. ¶ 18. Further, our supreme court stated,

though there is no express provision in the statute, it “has long recognized that courts may take

into consideration the circumstances surrounding a motion for substitution of judge and may

deny the motion if it is apparent that the request has been made as a delay tactic.” Id. The

plaintiff’s argument that she was entitled to exercise her automatic right to a substitution of judge

“without cause and without regard to the prior proceedings on her *** complaint” was based on

precedent holding that a case refiled pursuant to section 13-217 was “a ‘new and separate action,

not a reinstatement of the old action.’ [Citations]” Id. ¶ 19. The Bowman court rejected that

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argument. Id. The court acknowledged that “refiled cases have been held to be new and separate

actions for some purposes.” (Emphasis added.) Id. ¶ 20. Nonetheless, the court’s task was to

determine whether the legislature intended the phrase “in the case” to refer “only to the currently

pending suit for purposes of deciding a motion for substitution of judge as of right.” Id. The

court found the legislature did not so intend because to do so would create “a loophole that

allows the purpose of the statute to be defeated.” Id. ¶ 21. Specifically, the court stated it would

“not construe section 2-1001(a)(2) in a manner that facilitates or encourages ‘judge shopping.’ ”

Id. ¶ 20. Thus, “[c]onsidering the history of section 2-1001 and the goals sought to be achieved,

*** section 2-1001(a)(2)(ii) must be read as referring to all proceedings between the parties in

which the judge to whom the motion is presented has made substantial rulings with respect to the

cause of action before the court.” Id. ¶ 21.

¶ 17   The Bowman court found additional support for its holding in the plain language of the

statute. The court found that the plaintiff’s argument “effectively ignores the very first clause of

section 2-1001(a), which states that ‘[a] substitution of judge in any civil action may be had in

the following situations.’ 735 ILCS 5/2-1001(a) (West 2014).” (Emphasis in original.) Id. ¶ 22.

The court found that its interpretation of section 2-1001(a)(2)(ii) was bolstered by the fact that

although the plaintiff “initiated two lawsuits with distinct docket designations—by filing a

complaint in 2009 and then again in 2013 after the earlier suit had been voluntarily dismissed—

she had only a single cause of action against [the defendant.]” Id. In other words, our supreme

court held that for purposes of section 2-1001(a)(2)(ii), the plaintiff had only a single cause of

action against the defendant, regardless how many case numbers that cause of action generated

through voluntary dismissal and refiling; therefore, her rights under section 2-1001 should be

construed in the context of a single cause of action—and in that single cause of action (including

the current complaint and the previously filed complaint), the trial judge hearing the case had

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made substantive rulings before the plaintiff moved for substitution of judge as of right. See id.

The court explained:

               “[The plaintiff] had the opportunity to present a motion for substitution of judge

               as of right during the proceedings on her [first] complaint. For whatever reason,

               she declined to exercise that right before [the trial judge] ruled on substantial

               issues in those proceedings. After he did so, [the plaintiff] lost her right to seek a

               substitution of [the trial judge] as a matter of right. The fact that she voluntarily

               dismissed her complaint and refiled her claim against [the defendant] four months

               later does not change that fact. [The plaintiff] cannot use the voluntary dismissal

               and refiling provisions to accomplish in the [later] suit what she was precluded

               from doing in the [prior] suit. This is precisely the type of procedural

               maneuvering that section 2-1001 is designed to prevent. Consequently, we reject

               [the] assertion that the circuit court did not have discretion to deny the motion for

               substitution of judge under the circumstances of this case.” Id. ¶ 25.

¶ 18   In Bowman, our supreme court answered the certified question this way:

               “[I]n a case which previously had been voluntarily dismissed and then refiled, a

               trial court has discretion to deny an immediately filed motion for substitution of

               judge based on the fact that the same judge to whom the motion is presented made

               substantive rulings in the previously dismissed case.” Id. ¶ 29.

Now, in this appeal, defendant argues what our supreme court meant to say was that under those

circumstances a trial court has discretion to deny the plaintiff’s immediately filed motion for

substitution of judge (but not the defendant’s) where the plaintiff “engaged in ‘procedural

maneuvering’ for the specific purpose of judge shopping.” Defendant argues that, here,

defendant “is where he is in this case through no ‘procedural maneuvering’ of his own [citation]

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and he should not be treated otherwise,” and, therefore, Bowman does not apply. Defendant also

argues that, because Bowman was an appeal under Rule 308, it is limited to its facts and the

certified questions, which failed to address a defendant’s rights in this situation. Defendant

argues this court has recognized that Bowman “is directed only at situations where the party who

is seeking the substitution of judge as a matter of right is also the party who engaged in

‘procedural maneuvering’ for the specific purpose of judge shopping.”

¶ 19    Plaintiffs respond “Bowman clearly empowers trial courts presiding over a refiled case

with the discretion to deny a motion for substitution of judge where substantive rulings were

made in the previously dismissed case regardless of which party brings the motion.” Specifically,

plaintiff argues that “[i]f a party fails to timely apply for a substitution in the original action, the

refiling does not serve to ‘reset the clock’ and provide a second opportunity to apply for a

substitution in the refiling. The principle applies to plaintiffs and defendants equally.” See id.

¶ 21 (“the voluntary dismissal and refiling of a cause of action does not ‘reset the clock’ with

respect to the substitution of a judge who previously made substantive rulings in the prior

proceeding”). Defendant, however, argues plaintiffs are taking that statement by the Bowman

court out of its context, which is one where the plaintiff voluntarily dismissed her complaint then

refiled “for the specific purpose of judge-shopping.”

¶ 20    The question we must answer to determine whether our supreme court’s grant of

discretion to the trial court to deny a motion to substitute judge as of right in a refiled action,

where the trial judge to whom the motion is directed ruled on substantive issues in the previously

filed case, is whether our supreme court intended its construction of section 2-1001(a)(2)(ii) as a

restraint on the power granted to plaintiffs to voluntarily dismiss their claims and refile them, to

prevent abuse of that power by taking away a right; or, as an application of the limits already



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placed on either party’s right to one substitution of judge without cause. We believe there is a

distinction between those alternatives and that distinction makes the difference in this case.

¶ 21    Defendant’s argument paints Bowman as the former and focuses not on plaintiffs’

“maneuvering” for the purpose of “judge shopping” (there is no suggestion of any), but on his

own innocence of such conduct; e.g., “[defendant] had no control over the procedural posture of

either Williams I or Williams II. *** [Defendant] is where he is in this case through no

‘procedural maneuvering’ of his own ***.” Thus, defendant suggests, absent any maneuvering, a

party (the defendant) should be allowed to one substitution as of right in the refiled proceedings

regardless of the trial judge’s prior rulings. Plaintiffs view Bowman more like the latter, stating

that, because our supreme court held that when a case is voluntarily dismissed and the same case

is refiled there is but a single cause of action between the parties (see id. ¶ 22), it “follows that,

where a substantive ruling was made in the original filing, a motion for substitution as of right is

prohibited in any refiling which is the exact same result had the case not been voluntarily

dismissed and refiled.” (Emphasis added.)

¶ 22    Based on our careful scrutiny of the language in Bowman, we find defendant’s focus on

potential abuses, or the absence thereof, is misplaced; our supreme court’s judgment merely

made express the application of the existing limitations in section 2-1001(a)(2) to refiled actions.

Cf. Petalino, 2016 IL App (1st) 151861, ¶ 32 (holding trial judge did not abuse her discretion in

denying motion to substitute judge as of right in order of protection case as untimely, “as the

record *** reveals that the same circuit court judge had previously entered substantial orders

between the parties in the parentage case”). First, Bowman is easily construed as holding simply

that a refiled case is not a new and separate action for purposes of section 2-1001(a)(2), not that a

plaintiff who voluntarily dismisses a complaint then refiles should effectively be punished by

losing the right to move to substitute as of right in the refiled case while the defendant regains

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that right in the refiled case. Defendant’s position in this case would require us to find the latter,

but we find no support for that proposition in Bowman or in the purpose of section 2-1001(a)(2).

The Bowman court acknowledged “refiled cases have been held to be new and separate actions

for some purposes.” (Emphasis added.) Bowman, 2015 IL 119000, ¶ 20. But the court recognized

that is not true for all purposes. See id. ¶ 24. The court rejected finding that a refiled case is a

new and separate action for purposes of section 2-1001(a)(2), finding instead the statute “must be

read as referring to all proceedings between the parties in which the judge to whom the motion is

presented has made substantial rulings with respect to the cause of action before the court.” Id.

¶ 21.

¶ 23    That the supreme court intended its judgment as holding that a voluntarily dismissed then

refiled case is not a new and separate cause of action for purposes of section 2-1001(a)(2) is

further evidenced by its rejection, in Bowman, of the plaintiff’s argument Illinois Supreme Court

Rule 219(e) (eff. July 1, 2002) affords defendants “adequate protection against a plaintiff’s

attempt to ‘judge shop.’ ” Bowman, 2015 IL 119000, ¶ 23. Rule 219(e) prevents a party from

avoiding compliance with discovery by voluntarily dismissing a lawsuit by allowing the court to

consider discovery undertaken in prior litigation involving a party when ruling on discovery

matters. Id. (citing Ill. S. Ct. R. 219(e) (eff. July 1, 2002)). The court found Rule 219(e) was

another rule that “reflects this court’s determination that, where a case has been refiled pursuant

to section 13-217, it is not necessarily considered to be an entirely new and unrelated action for

all purposes.” Id. ¶ 24. The court found Rule 219(e) is “a formal recognition of the underlying

purpose of section 2-1001(a)(2)(ii) and is a logical extension of that statute and the goals sought

to be achieved by it.” Id. The court’s holding reflects its determination that Rule 219(e) is a

“formal recognition” of the fact the court will not allow the parties to use voluntary dismissal to

thwart the court’s rules—and to achieve that purpose the prior proceedings in the same cause of

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action (before the same judge) will not be erased if the plaintiff voluntarily dismisses the

complaint then refiles. The court’s discussion of Rule 219(e) bolsters our conclusion that what

Bowman actually held was that a refiled case is not a new and separate case for purposes of

section 2-1001(a)(2).

¶ 24   Second, there is ample support to conclude that the discretion afforded to the trial court to

deny a motion to substitute as of right in a refiled case after the judge has made a ruling on a

substantial issue is simply an issue of the timeliness of the motion. Our supreme court pointed

out that, under the preamendment version of section 2-1001, “if a litigant failed to move for the

first ‘change of venue’ in a timely fashion, then any relief from a claim of bias or prejudice had

to be justified by proof that the bias or prejudice actually existed.” Id. ¶ 15. The current version

of section 2-1001 still requires a motion to substitute judge as of right to be timely. See In re

Marriage of Roach, 245 Ill. App. 3d at 746-47. Then, the Bowman court explained that, although

the plaintiff “initiated two lawsuits with distinct docket designations,” there was “only a single

cause of action” against the defendant. Bowman, 2015 IL 119000, ¶ 22. Later, our supreme court

observed that the plaintiff—the party seeking to substitute in that case—“had the opportunity to

present a motion for substitution of judge as of right during the proceedings on her [previously

filed] complaint. For whatever reason, she declined to exercise that right before [the trial judge]

ruled on substantial issues in those proceedings. After he did so, [the plaintiff] lost her right to

seek a substitution of [the trial judge] as a matter of right.” Id. ¶ 25. A motion to substitute as of

right filed by a defendant in a refiled case, which our supreme court held was the same cause of

action for purposes of section 2-1001(a)(2), where the trial judge has ruled on a substantial issue,

would be just as untimely as the plaintiff’s motion to substitute as of right. Because defendant

would have faced the same timeliness barrier to his motion to substitute as of right under the

originally filed complaint, we see no reason why “[t]he fact [plaintiff] voluntarily dismissed her

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complaint and refiled her claim against [defendant] [should] change that fact.” See id. ¶ 25. Nor

has defendant given us one, other than a hypothetical plaintiff’s “procedural maneuvering” for

the purpose of “judge shopping.” (There is no dispute in this case that plaintiffs voluntarily

dismissed their complaint to correct an error in failing to demand trial by jury, and defendant

does not suggest any ulterior motive.)

¶ 25   In granting the discretion to trial court judges to deny a motion to substitute as of right in

a refiled case, our supreme court did state that an attempt to use the voluntary dismissal and

refiling provisions to accomplish in a refiled suit that which the party using the provisions could

not have accomplished in the previously filed suit was “precisely the type of procedural

maneuvering that section 2-1001 is designed to prevent.” Id. But the fact the plaintiff controls

this particular maneuver does not mean that section 2-1001 should be construed to create a

windfall for defendants to accomplish that which they otherwise could not have accomplished in

the previously filed suit either. For that reason, defendant’s reliance on Village of East Dundee v.

Village of Carpentersville, 2016 IL App (2d) 151084, ¶ 16, for the proposition the decision in

Bowman “hinged on the fact that the plaintiff had control over the procedural posture of the

case,” is unpersuasive.

¶ 26   In East Dundee, the trial court granted a motion to dismiss the plaintiff’s complaint for

lack of ripeness. East Dundee, 2016 IL App (2d) 151084, ¶ 1. The plaintiff filed a second suit,

alleging the controversy was now ripe. Id. ¶ 2. The second suit was assigned to the same trial

judge who presided over the first suit. Id. ¶ 7. The plaintiff moved for substitution of judge as of

right, arguing the trial judge had not ruled on any substantive issues in the second suit. Id. The

defendant argued the second suit was a refiling of the first suit based on the language in the

involuntary dismissal of the first suit and the trial court had ruled on substantive issues in the

first case. Id. The language in the involuntary dismissal read the complaint was dismissed subject

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to being refiled in the event the matter became ripe. Id. The trial court denied the motion to

substitute judge as of right and later granted a motion to dismiss the second complaint for lack of

standing. Id. ¶¶ 7, 8. On appeal, the court identified the issue as whether Bowman was

dispositive. Id. ¶ 12. The East Dundee court held it was not, in part because the holding in

Bowman is “necessarily confined to its facts, because the scope of review was limited to the

question certified by the trial court.” Id. ¶ 15. The court went on to hold that the court’s decision

in Bowman “hinged on the fact that the plaintiff had control over the procedural posture of the

case.” Id. ¶ 16. “In contrast, East Dundee’s previous complaint was involuntarily dismissed.”

(Emphasis in original.) Id. ¶ 17. But the court did not rely on the involuntary dismissal as

sufficient grounds to hold the plaintiff had an absolute right to substitution of judge in the second

case. (That is, the court did not clearly hold “the plaintiff did not engage in gamesmanship to get

to the second case, therefore it has an absolute right to substitution of judge in the second case.”)

Instead, the court held “[t]he dismissal of a complaint for failure to state a cause of action is an

adjudication on the merits. [Citation.] Accordingly, East Dundee was entitled to a substitution of

judge as of right.” Id. We do not read East Dundee to clearly stand for the proposition defendant

asserts.

¶ 27       As for the limits the East Dundee court placed on our supreme court’s judgment in

Bowman, although the scope of review in an interlocutory appeal pursuant to Rule 308 is limited

to answering the certified question (see Moore v. Chicago Park District, 2012 IL 112788, ¶ 9),

we find no authority, and defendant has cited none, stating that the answer is only applicable in

the case in which the certified question arose. We believe at minimum the reasoning used to

answer Rule 308 certified questions is not so limited in its reach. See, e.g., Perez v. Chicago

Park District, 2016 IL App (1st) 153101, ¶ 19 (“following the supreme court’s guiding in Moore

[(which arose under Rule 308)] *** we hold that section 3-106 does not apply”). As stated

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above, the Bowman court reasoned that because there was “a single cause of action” between the

parties (see Bowman, 2015 IL 119000, ¶ 22; Colagrossi v. Royal Bank of Scotland, 2016 IL App

(1st) 142216, ¶ 55 (“[t]his court has defined ‘cause of action’ as the set of facts giving the

plaintiff the right to relief”)), and so as not to facilitate or encourage “judge shopping,” the “in

the case” language in section 2-1001(a)(2) had to be construed to mean “all proceedings between

the parties in which the judge to whom the motion is presented has made substantial rulings with

respect to the cause of action before the court” (Bowman, 2015 IL 119000, ¶ 21). Applying that

reasoning in this case leads to the conclusion the trial court properly denied defendant’s motion

to substitute judge because the trial judge to whom the motion was directed made substantial

rulings in the proceedings between the parties.

¶ 28   The East Dundee court relied on the fact the plaintiff’s second suit was not a “revival” of

the first suit under section 13-217. East Dundee, 2016 IL App (2d) 151084, ¶ 17 (“Section 13­

217 revives a plaintiff’s previously filed complaint, where no adjudication on the merits has been

obtained. *** The dismissal of a complaint for failure to state a cause of action is an adjudication

on the merits.”). We can only construe this to mean the court found plaintiff’s second suit was a

“new and separate” cause of action because the prior cause of action was adjudicated on the

merits. The East Dundee court stopped at the fact the case did not involve a voluntary dismissal

and refiling. Id. However, the court did not address our supreme court’s holding with regard to

there being a single cause of action between the parties. See id. ¶ 13. We would not be bound by

the decision in East Dundee (Deutsche Bank National Trust Co. v. Iordanov, 2016 IL App (1st)

152656, ¶ 44) but, regardless, we do not find it directly contrary to our own.

¶ 29   Defendant also argues this court “recognized that Bowman is limited to its facts, and is

directed only at situations where the party who is seeking the substitution of judge as a matter of

right is also the party who engaged in ‘procedural maneuvering’ for the specific purpose of judge

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shopping” in Colagrossi, 2016 IL App (1st) 142216. We disagree with defendant’s interpretation

of Colagrossi. In Colagrossi, the court affirmed the trial court’s denial of the plaintiff’s motion

for substitution of judge as of right. Id. ¶ 1. The court held the trial court properly denied the

motion because the plaintiff “engaged in impermissible ‘judge shopping.’ ” Id. In that case, the

plaintiff filed a lawsuit against a wholly owned subsidiary of ABN AMRO Bank, N.V. (ABN

Amro), which the appellate court referred to as “the 2008 case.” Id. ¶¶ 4, 14. Another entity

purchased ABN Amro and changed its name to “The Royal Bank of Scotland” (RBS). Id. ¶ 8.

The plaintiff later filed another complaint against the subsidiary and RBS, which was the case at

issue in the appeal (the 2011 case). Id. ¶ 19. Both cases were assigned to the same trial judge. Id.

¶ 1. The trial court eventually entered summary judgment in favor of the defendants in the 2008

case. Id. ¶ 20. Nine days later, the plaintiff filed a motion for substitution of judge as of right in

the 2011 case. Id. ¶ 21. Thereafter, the plaintiff filed a second amended complaint in the 2011

case dropping the subsidiary as a defendant, leaving only RBS. Id. The trial court denied the

plaintiff’s motion to substitute judge as of right. Id. ¶ 23.

¶ 30    On appeal, the Colagrossi court found that the 2008 case and the 2011 case were based

on the same facts and were raised against the same parties. See id. ¶ 35. The plaintiff received an

unfavorable ruling in the 2008 case then moved for substitution in the 2011 case. The court

found that plaintiff’s “procedural maneuvering *** constitutes impermissible and blatant judge

shopping” (id.) and that the “testing the waters” doctrine was still “a viable objection to

substitution of judge motions as of right in the First District” (id. ¶ 36). The court held that

“[o]nce the judge has tipped his or her hand indicating how he or she will rule on a substantive

issue (here, actually ruling on the substantive issue), the right to substitution as of right dissolves

because it is no longer timely.” Id. ¶ 39. The court rejected the plaintiff’s argument the lawsuits

were separate and distinct. Id. ¶ 40. The court found the plaintiff’s “serial filing of lawsuits is an

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effort to circumvent the established rule against ‘testing the waters,’ demonstrated by the timing

of filings in the two state lawsuits.” Id.

¶ 31    In this case, defendant relies on the following passage in the Colagrossi court’s opinion

as the basis of his argument this court recognized that Bowman is limited to its distinct facts; i.e.,

a scenario in which the plaintiff has voluntarily dismissed her complaint then refiled and moved

to substitute the trial judge as of right where the judge had ruled on substantial issues in the

previously filed case:

                         “We realize that Bowman addressed the specific circumstance where a

                plaintiff voluntarily dismisses a case and refiles, hoping the newly docketed case

                would be assigned to a different judge. This case presents a different factual

                scenario, albeit one where Colagrossi shares the motivation of seeking a different

                outcome before a different judge in what was basically the same claim. His

                procedural maneuvering, as in Bowman, constitutes impermissible and blatant

                judge shopping, after having received an unfavorable ruling before the same judge

                in a related case with the same facts and, as will be explained, parties.” Id. ¶ 35.

¶ 32    We find no support for defendant’s argument based on Colagrossi. The Colagrossi court

only described the context of the decision in Bowman; it did not construe the scope of that

decision. The Colagrossi court relied on the “testing the waters” doctrine, a doctrine which the

Bowman court refused to rule on. And regardless, the Colagrossi court applied some of the

rationale from Bowman to the case before it (which did not involve a plaintiff voluntarily

dismissing his case then refiling it) when it noted that the Colagrossi plaintiff’s “procedural

maneuvering, as in Bowman, constitutes impermissible and blatant judge shopping.” (Emphasis

added.) Id. The Colagrossi court was just as concerned with the prevention of “judge shopping”

as was the Bowman court. See id.

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¶ 33   Our holding in this case is based on an express expansion of the protections against

“judge shopping,” already found in section 2-1001(a)(2) and applicable to originally filed

proceedings in the form of the timeliness requirement (see 735 ILCS 5/2-1001(a)(2)(ii) (West

2016)), to refiled proceedings involving the same cause of action, parties, and trial judge. This is

a different approach that is not inconsistent with the reasoning behind Colagrossi. Colagrossi,

2016 IL App (1st) 142216, ¶ 39 (once trial judge has tipped her hand, the right to substitution is

no longer timely).

¶ 34   Defendant argued “[b]ecause Williams II is a new action for purposes of Plaintiffs’ jury

demand under section 2-1105, it is not the same case as Williams I and [defendant’s] motion for

a substitution of judge as a matter of right should have been granted.” We expressly reject that

argument. Because a new filing may be considered a new and separate case for some purposes

does not mean it must be considered a new and separate case for all purposes. See Bowman,

2015 IL 119000, ¶ 24. We find that Bowman found a refiled case is not a new and separate case

for purposes of section 2-1001(a)(2). Applying that finding here, the trial judge in this case ruled

on substantial issues in the “single cause of action” between the parties before defendant moved

for substitution of judge as of right. Accordingly, the trial court properly denied defendant’s

motion to substitute judge as of right.

¶ 35                                      CONCLUSION

¶ 36   For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 37   Affirmed.




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