                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




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




Appellate Court             JOHN SCHNEPF and RAYMOND SCHNEPF, Plaintiffs-Appellees, v.
Caption                     LYNDLE SCHNEPF, Defendant-Appellant, and BRENDA SCHNEPF
                            JOHNSON, Defendant.–JOHN SCHNEPF and RAYMOND SCHNEPF,
                            Individually and as Executors of the Estate of Maleta Maxine Schnepf,
                            Plaintiffs-Appellants, v. LYNDLE SCHNEPF and BRENDA SCHNEPF
                            JOHNSON, Defendants-Appellees.



District & No.              Fourth District
                            Docket Nos. 4-12-1142, 4-12-1167 cons.


Filed                       September 11, 2013


Held                        In an action arising from a dispute concerning the partition of a farm, the
(Note: This syllabus        trial court erred in denying plaintiff’s motion for substitution of judge as
constitutes no part of      a matter of right based on the court’s conclusion that even though no
the opinion of the court    substantial rulings had been made, plaintiff had an “opportunity to test the
but has been prepared       waters,” because the “test the waters” doctrine should not be applied to
by the Reporter of          extinguish a party’s “absolute” right to a substitution of judge without
Decisions for the           cause pursuant to section 2-1001(a)(2) of the Code of Civil Procedure,
convenience of the          and since the orders entered following the improper denial of plaintiff’s
reader.)
                            motion were void, the orders were vacated and the cause was remanded
                            with directions to grant the motion.


Decision Under              Appeal from the Circuit Court of Pike County, No. 07-CH-2; the Hon.
Review                      Diane M. Lagoski, Judge, presiding.


Judgment                    Vacated in part and remanded with directions.
Counsel on                 Howard L. Snowden (argued), of Snowden & Snowden, of Quincy, for
Appeal                     Lyndle Schnepf.

                           William H. Strang (argued), of Strang & Parish, Ltd., of Jerseyville, for
                           John Schnepf.

                           John D. Coonrod (argued), of Winchester, for Raymond Schnepf.

                           John B. Leonard and Rick Zimmerman (argued), both of Mt. Sterling, for
                           Brenda Schnepf Johnson.


Panel                      PRESIDING JUSTICE STEIGMANN delivered the judgment of the
                           court, with opinion.
                           Justices Knecht and Harris concurred in the judgment and opinion.




                                             OPINION

¶1          These consolidated appeals arise from an action in partition involving a family farm
        owned in common by four siblings. In January 2007, plaintiffs Raymond Schnepf, John
        Schnepf, and their late mother, Maleta Maxine Schnepf (who died during the course of these
        proceedings), filed a complaint for partition of real estate, naming Lyndle Schnepf and
        Brenda Schnepf Johnson as defendants. In February 2008, before the trial court ruled on any
        substantial issue in the case, John filed a motion for substitution of judge as of right (735
        ILCS 5/2-1001(a)(2) (West 2008)). In March 2008, the court denied John’s motion on the
        basis the court had “previously indicated its position on issues going to the merits of [the]
        complaint.” In May 2009, the court entered a ruling on the parties’ interests in the property,
        finding that Raymond, John, and Brenda each owned a four-fifteenths interest in the property
        and that Lyndle owned a one-fifth (or three-fifteenths) interest. In November 2012, the court
        ordered the property sold pursuant to section 17-105 of the Code of Civil Procedure (Code)
        (735 ILCS 5/17-105 (West 2010)).
¶2          Lyndle appeals (this court’s case No. 4-12-1142), arguing that the trial court erred by
        finding that he owns a one-fifth share of the property and John, Raymond, and Brenda each
        own a four-fifteenths share. John appeals separately (this court’s case No. 4-12-1167),
        asserting that the court erred by denying his February 2008 motion for substitution of judge.
        John contends that the court’s orders following its improper denial of his motion for
        substitution of judge are void. In May 2013, we granted John’s motion to consolidate the
        appeals. Because we conclude that the court’s orders entered following its improper denial

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       of John’s motion for substitution of judge are void, we remand for further proceedings.

¶3                                       I. BACKGROUND
¶4          The trial court proceedings in this case lasted almost six years. The court held at least 36
       hearings. More than 200 docket entries span 16 pages of the record. The proceedings have
       been long and complicated. Moreover, this case was preceded by at least five years of prior
       litigation involving the same parties and property. Accordingly, in the interest of brevity, we
       review only the facts necessary to explain our decision.

¶5                               A. Events Leading up to This Case
¶6         The real estate at issue (the property) is an approximately 320-acre family farm located
       in Pike County. Through a series of deeds in 1988, 1989, and 1993, Maleta deeded the
       property to her four children, Raymond, John, Lyndle, and Brenda, to hold as tenants in
       common. As a result of the 1989 and 1993 deeds, Raymond, John, and Brenda each held a
       four-fifteenths interest in the property and Lyndle held a one-fifth interest. With each deed
       executed between 1988 and 1993, Maleta attempted, but failed, to reserve a life estate for
       herself. Maleta finally secured her life estate as a result of this court’s order in Schnepf v.
       Schnepf, No. 4-05-0817 (July 26, 2006) (unpublished order under Supreme Court Rule 23),
       a case involving the same parties and property. In that case, we found that the trial court erred
       by denying Maleta, Raymond, and John’s request for reformation of the 1988 and 1989
       deeds. Our order was limited to the issue of whether the deeds should have been reformed
       to provide Maleta with a life estate. We did not address whether the deeds should have been
       reformed to provide Raymond, John, Lyndle, and Brenda with equal, one-quarter interests
       in the property, as the parties had originally intended in 1988.

¶7                                 B. The Proceedings in This Case
¶8         In January 2007, Maleta, John, and Raymond filed a complaint for partition of the
       property, naming Lyndle and Brenda as defendants.
¶9         In February 2007, Lyndle filed (1) a motion for substitution of judge as of right (735
       ILCS 5/2-1001(a)(2) (West 2006)) and (2) a motion to dismiss. The motion to dismiss
       alleged, in pertinent part, that Maleta was “seriously ill, mentally incompetent, and under the
       undue influence of Raymond Schnepf and John Schnepf and incapable of consenting to the
       sale of her life estate.” The motion to dismiss did not cite the section of the Code under
       which it was brought.
¶ 10       Four days after Lyndle filed his motions, the trial court, Judge Michael Roseberry,
       granted Lyndle’s motion for substitution of judge and referred the case to Chief Judge
       Thomas L. Brownfield for reassignment. Chief Judge Brownfield assigned the case to Judge
       Richard Greenlief.
¶ 11       Later in February 2007, Raymond filed a motion for substitution of judge as of right. In
       March 2007, Judge Greenlief granted Raymond’s motion and referred the case back to Chief
       Judge Brownfield, who then reassigned the case to Judge Diane Lagoski.

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¶ 12       In May 2007, the trial court scheduled a hearing on all pending motions for July 2007 and
       granted Brenda an extension of time to file motions.
¶ 13       In June 2007, Brenda filed the following motions: (1) “suggestion of disqualification of
       plaintiff’s attorney of record from proceeding on behalf of any nominal plaintiffs”
       (suggestion of disqualification); (2) motion to dismiss the complaint for partition pursuant
       to section 2-615 of the Code (735 ILCS 5/2-615 (West 2006)); (3) motion to dismiss the
       complaint for partition pursuant to sections 2-619(a)(2) and (a)(9) of the Code (735 ILCS
       5/2-619(a)(2), (a)(9) (West 2006)); and (4) alternative motion to strike paragraphs “D” and
       “E” of the prayer for relief as contained in the complaint for partition.

¶ 14                                  C. The July 2007 Hearing
¶ 15       In July 2007, Judge Lagoski presided over a hearing scheduled to address all pending
       motions, which included Lyndle’s motion to dismiss and Brenda’s four motions. At the
       hearing, the parties’ attorneys and Judge Lagoski discussed (1) Brenda’s suggestion of
       disqualification, (2) the effect of Maleta’s life estate and Raymond and John’s farming lease
       on the partition suit, and (3) the issue of Maleta’s mental competence.
¶ 16       During a discussion of the life estate and farm lease, Lyndle’s attorney informed Judge
       Lagoski that he had filed a separate suit on behalf of Lyndle seeking to set aside Raymond
       and John’s farming lease (Pike County case No. 07-CH-18). In that suit, Lyndle alleged that
       Maleta was mentally incompetent and under undue influence from Raymond and John.
       Because Judge Lagoski determined that Maleta’s mental competence was an issue common
       to both cases, she decided to adjourn the hearing and abstain from ruling on any of the
       pending motions until Lyndle’s suit to set aside the lease had been resolved.

¶ 17                  D. John’s Motion for Substitution of Judge as of Right
¶ 18       In February 2008, apparently after Lyndle’s separate suit to set aside the farm lease had
       been resolved, John filed a motion for substitution of judge as of right. Lyndle and Brenda
       filed separate motions to strike John’s motion for substitution of judge. Following a March
       2008 hearing on the motions, the court denied John’s motion for substitution of judge,
       explaining its ruling, as follows:
               “The question is, number one, has the court ruled on any substantial issue? Has the
           party who made that motion had, in fact, the chance to test the waters[,] using the
           terminology ***.
               ***
               But, I have to think that after I did a couple of hours worth of argument that the
           parties had an opportunity to test the waters. I don’t know what I said, but I must have
           said something, because all those months later, all of a sudden, [John] decided he wanted
           to do a motion for substitution, or maybe something happened. I can’t imagine I ruled in
           his favor in the other matter.
               ***
               So, I don’t know what the issue is, but something obviously has come up, and my

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           sense is that it’s too late. I mean, we started it, and just because I didn’t sign an order or
           make any actual rulings on the merits of it, I think I certainly indicated some issues that
           I had problems with.”

¶ 19                          E. The Trial Court’s Subsequent Orders
¶ 20       In May 2009, following a hearing to determine the parties’ proportionate interests in the
       property, the trial court entered a written order finding that Raymond, John, and Brenda each
       owned a four-fifteenths interest in the property, and Lyndle owned a one-fifth interest. The
       court based its ruling on this court’s 2006 decision in Schnepf v. Schnepf, No. 4-05-0817
       (July 26, 2006) (unpublished order under Supreme Court Rule 23).
¶ 21       In November 2012, the trial court found that the real estate could not be equitably divided
       between the parties and ordered it sold pursuant to section 17-105 of the Code (735 ILCS
       5/17-105 (West 2010)). This order rendered the previous orders in the case final for purposes
       of appeal.
¶ 22       These consolidated appeals followed.

¶ 23                                        II. ANALYSIS
¶ 24       John asserts that the trial court erred by denying his February 2008 motion for
       substitution of judge as of right (735 ILCS 5/2-1001(a)(2) (West 2008)). John correctly notes
       that any orders entered by a court following an improper denial of a motion for substitution
       of judge are void. Aussieker v. City of Bloomington, 355 Ill. App. 3d 498, 500, 822 N.E.2d
       927, 929 (2005). Because our resolution of John’s claim of error is dispositive of Lyndle’s
       appeal, we begin by addressing the court’s denial of John’s motion for substitution of judge.

¶ 25                        A. Motion for Substitution of Judge as of Right
¶ 26        Civil litigants in Illinois are entitled to one substitution of judge without cause as a matter
       of right. 735 ILCS 5/2-1001(a)(2)(i) (West 2008). The trial court must grant a party’s motion
       for substitution of judge as of right if the 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.”
       735 ILCS 5/2-1001(a)(2)(ii) (West 2008); Rodisch v. Commacho-Esparza, 309 Ill. App. 3d
       346, 350, 722 N.E.2d 326, 329 (1999). A substantial issue is one relating directly to the
       merits of the case. Id. at 350-51, 722 N.E.2d at 330.
¶ 27        “The right to substitution of judge is absolute when properly made, and the circuit court
       has no discretion to deny the motion.” Cincinnati Insurance Co. v. Chapman, 2012 IL App
       (1st) 111792, ¶ 23, 975 N.E.2d 203. “Section 2-1001(a)(2) of the Code is ‘to be liberally
       construed, and where the conditions are met, the trial court has no discretion to deny the
       request unless it is shown that the motion was made simply to delay or avoid trial.’ ” Illinois
       Licensed Beverage Ass’n v. Advanta Leasing Services, 333 Ill. App. 3d 927, 932, 776 N.E.2d
       255, 259-60 (2002) (quoting Sahoury v. Moses, 308 Ill. App. 3d 413, 414, 719 N.E.2d 1157,
       1158 (1999)). Because the trial court has no discretion to deny a proper motion for
       substitution of judge as of right, our review is de novo. Id., 776 N.E.2d at 260.

                                                   -5-
¶ 28       In denying John’s motion for substitution of judge, the trial court acknowledged that it
       had not yet made a substantial ruling in the case. Rather, the court based its decision on the
       fact that John had an “opportunity to test the waters” prior to filing his motion because the
       court had “previously indicated its position on issues going to the merits of [the] complaint
       herein.” Lyndle and Brenda argue the court properly denied John’s motion on this basis. John
       asserts that this court has rejected the “test the waters” doctrine and, because his motion met
       the statutory conditions, his right to a substitution of judge should have been granted under
       section 2-1001(a)(2) of the Code.
¶ 29       The parties’ disagreement on this point is understandable. In fact, cases from this court
       provide support for both parties’ positions. Compare Advanta Leasing Services, 333 Ill. App.
       3d at 933, 776 N.E.2d at 261 (“[A] movant’s right to substitution of judge as of right is
       absolute, and the trial court does not have discretion to consider whether the movant had an
       opportunity to ‘test the waters.’ ”), with Curtis v. Lofy, 394 Ill. App. 3d 170, 176, 914 N.E.2d
       248, 253 (2009) (“A motion for substitution may also be denied, in the absence of
       substantive ruling, if the movant had the opportunity to form an opinion as to the judge’s
       reaction to her claims.”).
¶ 30       Admittedly, the weight of appellate court authority supports Lyndle and Brenda’s
       position that a trial court may deny a motion for substitution of judge as of right, in the
       absence of a substantial ruling, if the movant has had an opportunity to “test the waters” and
       form an opinion as to the court’s disposition toward his or her case. See Chapman, 2012 IL
       App (1st) 111792, ¶ 23, 975 N.E.2d 203; Curtis, 394 Ill. App. 3d at 176, 914 N.E.2d at 253
       (Fourth District); In re Estate of Gay, 353 Ill. App. 3d 341, 343, 818 N.E.2d 860, 863 (2004)
       (Third District); City of Granite City v. House of Prayers, Inc., 333 Ill. App. 3d 452, 461,
       775 N.E.2d 643, 650 (2002) (Fifth District). However, nothing in the text or purpose of
       section 2-1001(a)(2) provides a footing for this doctrine, and the supreme court has never
       endorsed it under the current version of the statute. To explain how the “test the waters”
       doctrine came into existence, and why it is no longer an appropriate judicial supplement to
       the substitution-of-judge analysis, we briefly review its origins and evolution.

¶ 31             1. Substitution of Judge Under the Old Change of Venue Statute
¶ 32       Prior to 1993, section 2-1001 of the Code (then titled “Change of venue” and sometimes
       referred to as the venue act) required a movant seeking a substitution of judge to recite that
       he feared the judge was prejudiced against him. Ill. Rev. Stat. 1991, ch. 110, ¶ 2-1001; Nunes
       v. Northwest Hospital, 253 Ill. App. 3d 337, 342, 625 N.E.2d 376, 380 (1993). However,
       despite the requirement that the petitioner allege prejudice, the judge was not permitted to
       “inquire as to the truthfulness of the allegations of prejudice.” Rosewood Corp. v.
       Transamerica Insurance Co., 57 Ill. 2d 247, 250-51, 311 N.E.2d 673, 675 (1974); see also
       Hoffmann v. Hoffmann, 40 Ill. 2d 344, 347, 239 N.E.2d 792, 794 (1968).
¶ 33       This approach created concern among Illinois courts that parties might seek a substitution
       of judge not because of a fear of prejudice, but because they had formed an opinion that the
       judge was unfavorably disposed to their case. In other words, a party with no sincere fear of
       prejudice could use argument and courtroom discussion during the early stages of the


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       proceeding to get a feel for the judge’s leanings in the case, then invoke its absolute right to
       a substitution of judge if it sensed the judge would rule unfavorably toward it on one issue
       or another. With no mechanism for testing the legitimacy of the party’s fear of prejudice,
       which it was required to allege but not required to prove, courts perceived the statutory
       system as open to abuse.
¶ 34        In Commissioners of Drainage District No. 1 v. Goembel, 383 Ill. 323, 328, 50 N.E.2d
       444, 447 (1943), the supreme court described the potential for abuse as follows:
            “It would be highly improper to permit an attorney representing parties to a suit to try out
            the attitude of the trial judge on a hearing as to part of the questions presented and, if his
            judgment on such questions was not in harmony with counsel’s view, to then permit
            counsel to assert that the court was prejudiced and that a change of venue must be
            allowed.”
¶ 35        In Fennema v. Joyce, 6 Ill. App. 3d 108, 285 N.E.2d 156 (1972), the First District
       intimated that, even absent a substantial ruling, litigants should not be entitled to a change
       of venue once the trial judge has revealed, through courtroom discussion, his views on the
       merits of the case. The court explained that it was “not prepared to hold that a pre-trial
       conference could never render untimely a Motion for Change of Venue, for we recognize the
       potential for abuse in a rule which would allow litigants to test the disposition of a trial judge
       during pre-trial, while retaining an absolute right to a change of venue.” Id. at 111, 285
       N.E.2d at 158.
¶ 36        In In re Marriage of Kozloff, 101 Ill. 2d 526, 463 N.E.2d 719 (1984), the supreme court
       took an indirect measure to curb perceived abuse of the venue act. At the time, the appellate
       court considered each postdecree petition filed following a judgment of dissolution of
       marriage as a new proceeding. Id. at 529-30, 463 N.E.2d at 721. This rule led to abuse
       because if a party desired a substitution of judge after a substantial ruling had been made, it
       could simply voluntarily dismiss the petition and refile an identical petition, which would
       likely get docketed before a different judge. Even if the new petition was docketed before the
       same judge, the party retained its absolute right to a change of venue because a substantial
       ruling had not yet been made in the proceedings on the new petition. The supreme court
       rejected the appellate court’s rule that each postdecree petition constituted a new proceeding,
       stating, “in our judgment it would lead to a serious abuse of the venue act. This court has
       long condemned a litigant’s attempt to seek a change of venue after he has formed an
       opinion, based upon the court’s adverse rulings, that the judge may be unfavorably disposed
       towards his cause.” Id. at 530-31, 463 N.E.2d at 721. However, in addressing the abuse of
       the venue act, the court merely held that postdecree petitions constitute continuations of the
       dissolution proceeding, not new proceedings. Id. at 531, 463 N.E.2d at 722. The court 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.
¶ 37        In In re Marriage of Kenik, 181 Ill. App. 3d 266, 271, 536 N.E.2d 982, 985 (1989), the
       First District affirmed the trial court’s denial of a petition for a change of venue because the
       trial judge had already ruled on substantial issues in the case. In dicta, however, the court
       found that the parties’ discussion and argument before the judge at an earlier court


                                                  -7-
       appearance precluded the motion for a change of venue. The court explained its position, as
       follows: “This exchange presented [the party seeking a change of venue] the opportunity to
       form an opinion as to the court’s reaction to his claim, thereby additionally foreclosing [his]
       automatic right to a change of venue.” Id.
¶ 38       Finally, in Hader v. St. Louis Southwestern Ry. Co., 207 Ill. App. 3d 1001, 1009, 566
       N.E.2d 736, 741 (1991), the trial court held a hearing on the defendant railway company’s
       motion to continue and motion to bar the plaintiff’s expert witness, but the court continued
       the hearing without ruling on those motions. Id. at 1007-08, 566 N.E.2d at 740. Based on the
       extensive discussion at the hearing, the parties would have been led to believe that the trial
       judge was going to deny the railway company’s motion for continuance. Id. at 1008, 566
       N.E.2d at 740. At the continued hearing, the trial judge took up the railway company’s
       petition for a change of venue. Id. The plaintiff’s attorney argued that the petition should be
       denied because the attorney for the railway company “had already gotten the ‘flavor or
       feeling’ for the way the judge planned to rule on at least the motion to continue.” Id. The trial
       judge agreed and denied the petition. Id. In affirming the trial court, the Fifth District cited
       Fennema and explained its decision, as follows:
           “Even though the trial court did not rule on the motion to continue or the motion to bar
           plaintiff’s experts prior to the time the motion for change of venue was considered, the
           [railway company’s] attorney was clearly testing the temperament of the trial court not
           only on the motion to continue, but also on the motion to bar plaintiff’s experts.
           Therefore, under the present facts, we find that the trial court did not err in denying the
           [railway company’s] motion for change of venue.” Id. at 1009, 566 N.E.2d at 741.
¶ 39       What the aforementioned cases have in common is that 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. These decisions reflect 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.” Becker v. R.E. Cooper Corp., 193 Ill. App. 3d 459,
       462, 550 N.E.2d 236, 238 (1990).

¶ 40            2. Public Act 87-949 and Elimination of the Prejudice Requirement
¶ 41       Effective January 1993, Public Act 87-949 amended section 2-1001 of the Code and
       added section 2-1001.5 to distinguish between “substitution of judge” (735 ILCS 5/2-1001
       (West 1992)) and “change of venue” (735 ILCS 5/2-1001.5 (West 1994)). Pub. Act 87-949,
       § 1 (eff. Jan. 1, 1993). The Act also amended section 2-1001(a)(2) to provide each party the
       right to one substitution of judge without cause. That section 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).

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                         (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, or if it is presented by consent of the parties.” 735 ILCS 5/2-1001 (West
                     2008).
¶ 42        For the sake of avoiding confusion, we take this opportunity to briefly note the changes
       in terminology caused by the 1993 amendments to the Code. First, substitutions of judge as
       of right under the current section 2-1001(a)(2) are made by “motion.” Under the old version
       of the statute and under section 2-1001(a)(3) of the new version (substitution for cause),
       substitutions are made by “petition.” In re Marriage of O’Brien, 2011 IL 109039, ¶ 28, 958
       N.E.2d 647. Second, under the old statute, a substitution of judge and a substitution of the
       county in which the cause was to be heard were both referred to as a “change of venue.” The
       new version of the statute explicitly distinguishes between substitution of judge (735 ILCS
       5/2-1001 (West 2008)) and transfer of the cause to another county, a “change of venue” (735
       ILCS 5/2-1001.5 (West 2008)).
¶ 43        By amending section 2-1001 to include the right to a substitution of judge without cause,
       the legislature specifically eliminated the requirement that a party provide a reason for
       seeking a substitution. By the same token, the legislature saved the courts from inquiring into
       the motive behind a party’s motion for substitution. The only exception recognized by the
       supreme court, of course, is when it is shown that the motion was made simply to delay or
       avoid trial. In re Estate of Wilson, 238 Ill. 2d 519, 557, 939 N.E.2d 426, 449 (2010).
¶ 44       Following passage of Public Act 87-949, section 1, this court decided In re Marriage of
       Roach, 245 Ill. App. 3d 742, 746-47, 615 N.E.2d 30, 33 (1993), which was the case that
       introduced the term “test the waters” to Illinois jurisprudence. However, in Roach, we dealt
       with trial court proceedings occurring before January 1993, and the old change of venue
       statute controlled our decision. While discussing the law under the old change of venue
       statute, we cited Kozloff, Kenik, and Hader, and made the following observation:
            “Even when the trial court has not ruled on a substantial issue, it appears the motion may
            be denied if the movant has had an opportunity to test the waters and form an opinion as
            to the court’s reaction to his claim (Kozloff, 101 Ill. 2d at 531, 463 N.E.2d at 721; Kenik,
            181 Ill. App. 3d at 271, 536 N.E.2d at 984; Hader[, 207 Ill. App. 3d at 1007, 566 N.E.2d
            at 740]), or if the movant is simply attempting to delay or avoid trial.” Roach, 245 Ill.
            App. 3d at 746, 615 N.E.2d at 33.
       Immediately following that sentence, we noted the following:
            “The legislature has amended section 2-1001 ***. Amended section 2-1001, which does
            not apply to this case, eliminates the necessity for the movant to recite that he fears the
            judge is prejudiced against him, and allows each party ‘one substitution of judge without
            cause as a matter of right.’ (735 ILCS 5/2-1001(a)(2)(i) (West 1992).) *** 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

                                                 -9-
            section does require the motion to be ‘timely.’ ” (Emphasis added.) Roach, 245 Ill. App.
            3d at 746-47, 615 N.E.2d at 33.
¶ 45        Six years after Roach, the “test the waters” doctrine resurfaced in the First District case
       of In re Marriage of Abma, 308 Ill. App. 3d 605, 720 N.E.2d 645 (1999). That case involved
       a divorce proceeding occurring under the new version of section 2-1001, but the appellate
       court nonetheless applied the doctrine alluded to in Roach. The First District stated, “[I]n
       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, 720 N.E.2d at 650.
¶ 46        It appears the Abma court overlooked the context of our discussion in Roach regarding
       the “test the waters” doctrine. Our mention of that doctrine was an observation gleaned from
       case law under the old version of the statute, and not intended to reflect the amended version
       of section 2-1001(a)(2). Moreover, we viewed the new statute’s silence regarding a movant’s
       ability to “test the waters” as an indication that the legislature did not see fit to address that
       issue.
¶ 47        In Scroggins v. Scroggins, 327 Ill. App. 3d 333, 336, 762 N.E.2d 1195, 1198 (2002), we
       attempted to set the record straight regarding the “test the waters” doctrine, as follows:
                “Under prior statutes allowing the automatic substitution of a judge, an inquiry could
            be made whether the motion was filed simply for delay or whether the movant had an
            opportunity to test the waters and form an opinion as to the court’s reaction to his claim.
            [Roach, 245 Ill. App. 3d at 746-47, 615 N.E.2d at 33.] The present version of section 2-
            1001(a)(2), however, has adopted a new test. Under the present version, it is not
            necessary to allege that the judge is prejudiced against the defendant. [Citation.] Under
            the present version of section 2-1001(a)(2), the right to a substitution without cause must
            be ‘timely exercise[d].’ 735 ILCS 5/2-1001(a)(2) (West 2000). 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.’ 735 ILCS 5/2-
            1001(a)(2)(ii) (West 2000); Roach, 245 Ill. App. 3d at 747, 615 N.E.2d at 33.”
¶ 48        In Advanta Leasing Services, 333 Ill. App. 3d at 933, 776 N.E.2d at 261, we voiced our
       rejection of the “test the waters” doctrine more plainly, stating, “a movant’s right to
       substitution of judge as of right is absolute, and the trial court does not have discretion to
       consider whether the movant had an opportunity to ‘test the waters.’ ”
¶ 49        Despite our attempts in Scroggins and Advanta to clarify that the “test the waters”
       approach was no longer good law because the legislature amended section 2-1001, the
       floodgates had already been opened. The Fifth District adopted the “test the waters”
       terminology in City of Granite City, 333 Ill. App. 3d at 461, 775 N.E.2d at 650. Two years
       later, the Third District adopted the doctrine in Gay, 353 Ill. App. 3d at 343, 818 N.E.2d at
       863. Even this court has been guilty of citing the “test the waters” doctrine, albeit in dicta,
       following Scroggins and Advanta. See Curtis, 394 Ill. App. 3d at 176, 914 N.E.2d at 253; In
       re Austin D., 358 Ill. App. 3d 277, 281, 831 N.E.2d 1215, 1218 (2005).
¶ 50        The “test the waters” doctrine was rendered obsolete 20 years ago by introduction of the

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       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 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.
¶ 51       Moreover, from the position of the appellate court, consistent and certain application of
       the doctrine is nearly impossible. Justice McDade thoughtfully addressed this issue in her
       special concurrence in Gay, as follows:
           “[O]ur standard of review is de novo, but even if we had a transcript of the proceedings,
           we would still be ignorant of inflection, facial expressions or body language that could
           more clearly indicate whether or not the judge had actually tipped his hand. We have no
           objective basis for making a meaningful judgment and are, therefore, totally reliant on
           the judge’s own subjective recollection and reconstruction in reviewing his decision. This
           standard seems totally inappropriate for de novo review.” Gay, 353 Ill. App. 3d at 345,
           818 N.E.2d at 864 (McDade, J., specially concurring).
       Justice McDade’s concern is well illustrated in Brenda’s brief to this court, in which she
       argues, “Plaintiff John Schnepf and his attorney *** had the opportunity to observe the Trial
       Court’s posture and mannerisms which could have indicated her position regarding the
       arguments which counsel were presenting at that time.” This might be true, but for all we
       know Judge Lagoski presided over the hearing like a champion poker player. Under a de
       novo review, we simply have no way of accounting for these potentially significant nonverbal
       factors.
¶ 52       Justice McDade articulated an additional, more fundamental flaw in the “test the waters”
       doctrine, as follows:
           “It appears that an acknowledgment that one has ‘tipped his hand’ is tantamount to a
           concession that he has prejudged the case and is, therefore, biased. It seems to me that
           such a finding ought to mandate a recusal rather than militating against it. As it now
           stands, if the judge has not formed an opinion and given the parties some inkling of what
           that opinion is, then a party is able to take a recusal as a matter of right; if, on the other
           hand, the judge has formed an opinion before the evidence has been presented and has
           tipped his hand to that effect, he must remain as the judge in the case. While I understand
           and appreciate the need to discourage forum shopping, this result makes no sense to me
           ***.” (Emphases in original.) Id. at 345-46, 818 N.E.2d at 864-65 (McDade, J., specially
           concurring).
       We agree with Justice McDade’s observations and take this opportunity to add some of our
       own.
¶ 53       First, the “test the waters” doctrine is inconsistent with the long-standing rule that section
       2-1001(a)(2) of the Code is to be liberally construed, and if the motion “is timely, in proper
       form, and in compliance with the statute, the right to a change of venue in both civil and
       criminal cases is absolute.” Rosewood Corp., 57 Ill. 2d at 250, 311 N.E.2d at 675. Under the
       old version of the statute, the “test the waters” doctrine was seen by many as an appropriate

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       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. Under a liberal
       construction of the current statute, parties are free to move for a substitution of judge as of
       right for whatever reason they wish, provided their purpose is not to delay or avoid trial
       (Advanta, 333 Ill. App. 3d at 932, 776 N.E.2d at 259-60). 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.
¶ 54       Second, the concern over “judge shopping” is already addressed by the requirement that
       the motion be 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)(2)(ii) (West
       2008). By preventing a party from seeking substitution after the judge has made a substantial
       ruling, section 2-1001(a)(2)(ii) limits the party’s ability to discern whether the judge is
       favorably disposed to their position. Granted, section 2-1001(a)(2)(ii) cannot prevent all
       instances of judge shopping. A judge might roll his eyes during a pretrial conference or do
       something else that reveals his opinion but does not foreclose a motion for substitution under
       section 2-1001(a)(2)(ii). However, the legislature has drawn a bright line with section 2-
       1001(a)(2)(ii). This bright line saves the trial and appellate courts from engaging in the
       nuanced, subjective determination of whether the trial judge had tipped his hand, and it
       provides certainty to litigants who may wish to exercise their right under section 2-
       1001(a)(2). The “test the waters” doctrine needlessly obscures an otherwise bright line.
¶ 55       Finally, we cannot accept a doctrine that would allow a trial judge to so easily, even
       inadvertently, extinguish a party’s “absolute” right to a substitution without cause. Under the
       “test the waters” doctrine, a trial judge defeats a party’s right under section 2-1001(a)(2) by
       doing anything that might give the party an opportunity to form an opinion as to the judge’s
       views on the merits of the case. Even an opposing party could defeat the other party’s right
       under section 2-1001(a)(2) by deliberately engaging in courtroom discussion in an effort to
       cause the judge to unwittingly express an opinion on the merits of the case. We do not
       believe the legislature intended to create such a vulnerable right, only to rest it in the hands
       of those who might wish to deny a party’s use of that right.
¶ 56       Having now explicitly rejected the “test the waters” doctrine, we turn to the merits of the
       case before us.

¶ 57                  B. The Trial Court Erred by Denying John’s Motion for
                                  Substitution of Judge as of Right
¶ 58       The record indicates that the only orders entered before John filed his motion for
       substitution of judge were related to scheduling and continuances, which are not considered
       substantial rulings. See Scroggins, 327 Ill. App. 3d at 336, 762 N.E.2d at 1198. Accordingly,
       the trial court erred by denying John’s motion for a substitution of judge as of right.

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¶ 59                                     III. CONCLUSION
¶ 60       The trial court’s orders following the improper denial of John’s motion for substitution
       in March 2008, including the May 2009 ruling on the parties’ interests in the property, are
       void. See Aussieker, 355 Ill. App. 3d at 500, 822 N.E.2d at 929. Accordingly, we vacate
       those orders and remand the case with directions to grant John’s motion for substitution of
       judge as of right pursuant to section 2-1001(a)(2) of the Code. 735 ILCS 5/2-1001(a)(2)
       (West 2012).

¶ 61      Vacated in part and remanded with directions.




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