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 2015 IL App (5th) 140215

 NO. 5-14-0215

 IN THE

 APPELLATE COURT OF ILLINOIS

 FIFTH DISTRICT

________________________________________________________________________

CONNIE L. BOWMAN, ) Appeal from the

Special Administrator of the Estate of ) Circuit Court of

Char L. Bowman, Deceased, ) Jefferson County.

)

Plaintiff-Appellant, )

)

v. ) No. 13-L-41

)

MICHAEL D. OTTNEY, ) Honorable

) David K. Overstreet, 

Defendant-Appellee. ) Judge, presiding.

________________________________________________________________________

JUSTICE WELCH delivered the judgment of the court, with opinion.

Justice Schwarm concurred in the judgment and opinion. 

Justice Stewart dissented, with opinion. 

OPINION

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

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

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

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

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

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

NOTICE

Decision filed 01/21/15. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
2

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

certified question in the affirmative. 

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

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

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

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

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

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

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

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

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

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

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

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

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

dismissed action. 

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

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

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

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

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

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

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

dismissed action.1

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

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

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

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

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

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

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

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

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

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

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

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

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

dismissed case?"

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

 1

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

our opinion below. 
4

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

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

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

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

"§ 2-1001. Substitution of judge.

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

situations:

*** 

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

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

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

without cause as a matter of right.

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

made by motion and shall be granted if it is presented before trial or 

hearing begins and before the judge to whom it is presented has 

ruled on any substantial issue in the case ***." 735 ILCS 5/2-

1001(a) (West 2012).

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

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

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

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

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

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

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

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

(West 2012)). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

court's position:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2013 IL App (4th) 121142, ¶ 36.2

 2

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

each party the right to one substitution without cause, which eliminated the requirement 
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¶ 13 However, the relevant Fifth District case law on point begs the opposite 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

Schnepf, 2013 IL App (4th) 121142, ¶ 50.
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substitution of judge in a section 2-1401 proceeding would defeat the policy behind the 

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

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

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

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

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

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

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

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

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

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

 

Id.

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

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

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

 3

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

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

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

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

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

slippery slope." Id.
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thus, the motion could be declared untimely pursuant to the statute. See Kozloff, 101 Ill. 

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

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

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

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

Appellate Court held that even where a case is indeed a new action and not the "recommencement" of the prior action, the motion for substitution was properly denied 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

rule. 

¶ 20 Certified question answered in the affirmative.

¶ 21 JUSTICE STEWART, dissenting.

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

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

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

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

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

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

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

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

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

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

approve denial of a motion for substitution under similar circumstances.

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

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

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

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

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

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

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

certified question in the negative.
 2015 IL App (5th) 140215

 

 NO. 5-14-0215

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________

CONNIE L. BOWMAN, ) Appeal from the

Special Administrator of the Estate of ) Circuit Court of

Char L. Bowman, Deceased, ) Jefferson County.

)

Plaintiff-Appellant, )

)

v. ) No. 13-L-41

)

MICHAEL D. OTTNEY, ) Honorable

) David K. Overstreet, 

Defendant-Appellee. ) Judge, presiding.

______________________________________________________________________________

Opinion Filed: January 21, 2015

______________________________________________________________________________

Justices: Honorable Thomas M. Welch, J.

Honorable S. Gene Schwarm, J.,

Concurred

Honorable Bruce D. Stewart, J.,

Dissented

______________________________________________________________________________

Attorney John J. Hopkins, John J. Hopkins & Associates, P.C., 500 E. 6th Street, 

for P.O. Box 595, Alton, IL 62002

Appellant

______________________________________________________________________________

Attorneys Brad A. Elward, Heyl, Royster, Voelker & Allen, 124 SW Adams Street, 

for Suite 600, Peoria, IL 61602; Richard K. Hunsaker, Sara A. Ingram, Heyl, 

Appellee Royster, Voelker & Allen, Mark Twain Plaza III, 105 W. Vandalia, Suite 

100, P.O. Box 467, Edwardsville, IL 62025

______________________________________________________________________________