## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Schnepf v. Schnepf

, 2013 IL App (4th) 121142

Appellate Court Caption J OHN SCHNEPF and RAYMOND SCHNEPF, Plaintiffs-Appellee s, v. L YNDL E SCHNEPF, Def endant- Appellant, and BRENDA S CHNEPF J OHNSON, Def

endant.–JOH

N SC H N E PF a n d RAYMOND SCHNEPF, Individually and as Ex ecutor s of the Estate of Maleta Maxi ne Schnepf, Plaintiffs-Appellants, v. LYNDL E SCHNEPF and BREND A SCHNEPF J OHNSON, De fenda

nts-Appellee s.

District & N o. Four th District Docke t Nos. 4-12-1142, 4-12- 1167 cons.

Filed September 11, 2013

Held (N ote : This syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by t h e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action arising from a dispute conce rning the partition of a far m, the trial court err ed in denying plaintiff’s motion for substitut ion of judge as

a matter of rig ht base d o n t h e court’s conclusion that even though no substantial ruling s had been made, plaintiff had an “opportunity to test the waters,” because the “test the waters” doctrine shoul d not be applied to exti nguish a party ’s “absolute” rig ht to a substitu t i o n of judge without

cause pursuant to section 2-1001(a )(2) of the Code of Civil P ro cedure, and since the order s enter ed following the improper denial of plaintiff’s motion were void, the order s wer e vaca ted and the cause was re manded with directions to g rant the motion.

Dec ision Under Review Appea l fro m t he Circuit Court of Pike County
, No. 07-CH-2; the Hon. Diane M. L ag oski, J udg e, pre siding.

J udg ment Vac ated in par t and re manded with dire ctions.Counsel on

Appea l Howar d L

. Snowden (argued), o f S n o wden & S nowden, of Quincy
, for Ly ndle Schnepf

.

Wil liam H. Strang (ar gued), of Strang& Par ish, L td., of J erse y ville, for J ohn Schnepf.

J ohn D. Coonrod (a

rgued), of Winchester, for

Ray mond Schnepf.

J ohn B. L eonar d and Rick Z immerman (ar gued), both of Mt. Sterling, for Br enda Schne pf Johns on.

Panel PRES I DI NG J US TI CE STEI GMANN delivere d the judgme nt of the court, with opinion.
J ustices Knec ht and Har

ris concur red in the judg ment and opinion.

OP INION

¶ 1 These consolidated ap p ea l s arise from an action in partition involving a family far m owned in common by four siblings. I n J an uary 2007, plaintiffs Ray mond Schnepf, J ohn Schnepf, and their late mother, Maleta Maxi ne Schnepf (who died during the course of these
proce eding s), filed a complaint for partition of rea l est at e, naming Ly ndle Schnepf and Br enda Schnepf J ohnson as defe ndants. In Fe bruar y 2008, befor e the trial court ruled on any substantial issue in the case , J ohn filed a motion for substitut ion o f judge as of rig ht (735 I L CS 5/2-1001(a) (2) (West 2008)). I n M arc h 2008, the court denied J ohn’s m otion on the basis the court had “previ o u sly indicated its position on issues g oing to the m erits of [t he] complaint.” In May 2009, the court enter ed a ruling on the parties’ interests in the proper ty , finding that Ray

mond, J ohn, and Br enda eac h owned a four- fiftee nths interest in the proper ty and that Ly

ndle owned a one-f

ifth (or three -fifte enths) interest. In November 2012, the court order ed the proper

ty sold pursuant to section 17-105 of the Code of Civil Procedur e (Code) (735 I L CS 5/ 17-105 (West 2010)). ¶ 2 Ly

ndle appea ls (this court’ s ca s e No

. 4-12-1142)
, arguing that the trial court err ed by finding that he owns a one-f ifth share of the proper

ty and J ohn, Ray

mond, and Br enda eac h

own a four- fifteen t h s s hare

. J ohn appea ls separ ately (this court’s case No. 4-12-1167)
, asser ting that the court err ed by denying his Fe bruar y 2008 motion for substitut ion of judge

. J ohn contends that the court’s order s following its i m p ro per denial of his motion for substitut ion of judge are void. In May 2 0 1 3
, we g rante d J ohn’s motion to consolidate the
appea ls. B eca

use we conclude that the court’s order s enter ed following its improper denial

-2-of John’s mot ion for substitution of judge a re void, we rema

nd for f urther pr ocee dings.

¶ 3 I . BA CKGROUND ¶ 4 The trial court proce eding s in this case lasted almost six y ear s. The court held at least 36 hear ings. Mor e than 200 doc ket entrie s span 16 pag es of the rec ord. The pr ocee dings ha ve been long and complicated. Moreove r, this case was prec eded by at least five y ear s of prior litigation involving the same parties and proper ty

. Acc ording ly
, in the interest of brevity
, we revie w only

the fa cts nec essar

y to expl ain our de cision.

¶ 5 A. Events L eadingup to This Case ¶ 6 The rea l e state at issue (the proper ty) is an approximately 320-ac re family far m located in Pike County

. Through a series of deeds in 1988, 1989, and 1993, Maleta deede d the
proper ty to her four ch i l dre n, Ray mond, J ohn, Ly

ndle, and Br enda, to hold as tenants in common. As a re sult of the 1989 and 1993 deeds, Ray mond, John, a

nd Br enda e ach he ld a four- fiftee nths inter est in the proper ty and Ly ndle held a one-f

ifth interest. Wit h eac h deed

ex ecute d betwee n 1988 and 1993, Maleta attempted, but failed, to rese rve a life estate fo r herse lf. Maleta finally secur ed her life estate as a result of this court’s order in Schnepf v. Schnepf
, No. 4-05-0817 (Jul y 26, 2006) (unpublished order under Supreme Court Rule 23),

a case involving the same parties and proper ty

. In that case , we found that the trial court err ed by denying Maleta, Ray

mond, and J ohn’s reque st for ref ormation of the 1988 and 1989 deeds. Our order was limit ed to the i ssue of whether the de eds should have be en re formed
to provide Maleta with a life estate. We did not addre ss whether the deeds should have been ref ormed to provide Ray

mond, J ohn, Ly

ndle, and B renda

with equal, one-quar

ter int ere sts in the proper

ty , as the pa

rties had or igina lly

intended in 1988.

¶ 7 B. The Procee dings in This Case ¶ 8 I n J anuar

y 2007, Maleta, J ohn, and Ray mond filed a complaint for p ar t i t i o n o f t h e proper ty , namingLy

ndle and B renda

as def endants. ¶ 9 In Fe bruar

y 2007, Ly

ndle filed (1) a motion for s ub s t i t u t i o n of judge as of rig ht (735 I L CS 5/2-1001(a) (2) (We s t 2006)) and (2) a motion to dismiss

. The motion to dismiss alleg ed, in pertinent part, that Maleta was “ser iously ill, mentally incompetent, and under the undue influence of Ray

mond Schnepf and J ohn Schnepf and incapa ble of consenting to the sale of her life estate.” T h e m o t i o n t o dismiss did not cite the section of the Code under which it was brought. ¶ 10 Four day s afte r Ly nd l e fi l ed h i s m otions, the trial court, J udg e Michae l Roseberry
, g rante d Ly

ndle’s motion for substitut ion of judge and ref err ed the case to Chief J udg e Thomas L

. Br ownfield for rea ssignment. Chief J udg e Br ownfield assig ned the case to J udg e Richard Gr eenlief

. ¶ 11 L ater in Fe bruar y 2007, Ray

mond filed a motion for substitut ion of judge as of rig ht. I n Marc h 2007, J udg e Gre enlief g rante d Ray mond’s motion and ref

err ed the case back to Chief J udg e B rownfie ld, who then re assig ned the c ase to Judge D iane L ag oski.

-3-¶ 12 In May 2007, the trial court schedule d a hear ing on all pending motions for J uly 2007 and

g rante d Br enda a

n extension of tim e to file motions. ¶ 13 In J une 2007, Br enda filed the following motions: (1) “sug g estion of disqualification of plaintiff’s attorney of rec ord from proce eding on behalf of any n o m i n al plaintiffs” (sug g estion of disqualification); (2) motion to di smiss t he complaint for partition pursuant
to section 2-615 of the Code (735 I L CS 5/2-615 (West 2006)) ; (3 ) m o t i o n to dismiss the complaint for p ar t i t ion pursuant to sections 2-619(a )(2) and (a) (9) of the Code (735 I L CS 5/2-619(a) (2), (a) (9) (West 2006)); and (4) alternative motion to strike para g raphs “D” and “E” of the pra

y er f or re lief as c ontained in the complaint for partition.

¶ 14 C. The J uly 2007 Hea

ring ¶ 15 In J uly 2007, J udg e L ag oski presided over a hearing s ch ed u l ed to addre ss all pending

m otions, which included Ly ndle’s motion to dismiss and Br enda’ s four motions. At t h e hear ing, the parties’ attorney s and J udg e L ag oski discussed (1) Br enda’ s sug g estion of disqualification, (2) the eff ect of Maleta’ s life estate and Ray mond and J ohn’s far

ming lease on the par tition s uit, and (3) the issue of Maleta’ s mental compete nce. ¶ 16 During a discussion of the life estate and far m le ase, L

y ndle’s attorney informed J udg e L ag oski that he had filed a separ ate suit on beha lf of Ly ndle see king to se t aside Ray mond and J ohn’s far

ming lease (Pike County case No. 07-CH-18). In that suit, Ly ndle alleg ed that Maleta was mentally incompetent and u n d er undue influence from Ray mond and J ohn. Be cause J udg e L ag oski deter mined that Maleta’ s mental competenc e was an issue common to both case s, s h e d ec i d ed to adjourn the hear ing and abstain from ruling on any of the pendingmotions unt il L y ndle’s suit to set aside the lea se had be en re solved.

¶ 17 D. J ohn’s Motion for Substitut ion of J udg e as of Right ¶ 18 In Fe bruar

y 2008, appar ently afte r Ly ndle’s separ ate suit to set aside the far m lease had been r esolved, John filed a motion for substitut ion of judge as of r ight. Ly

ndle and B renda filed separ ate motions to strike J ohn’s motion for substitut ion of judge

. Following a Marc h 2008 hear ing o n t h e m o t i ons, the court denied J ohn’s motion for substitut ion of judge
, explaining its ruling, a s follows: “The question is, number one, ha s the court ruled on any substantial issue? Has the party who made that motion had, in fac t, the chanc e t o t es t the water s[,] using the terminolog y

***.

***
Bu t , I have to think that afte r I did a couple of hours worth of argumen t t h at t h e parties had an opportunit y to test the waters. I don’t know what I said, but I must have said something, beca

use all those months later, all of a sudden, [J ohn] decide d he wanted
to do a motion for substitut ion, or may be something happene d. I can’ t imag ine I ruled in his favor in the othe r matter.

***
S o , I d o n ’t know what the issue is, but something obviously has come up, and my

-4-sense is that it’s too late. I mean, we started it, and just beca use I didn’t sign an order or make any actua l ruling s on the merits of it, I think I cer tainly indicated some issues that Ihad proble ms with.”

¶ 19 E. The Tr ial Court’s Subsequent Orde rs ¶ 20 In May 2009, following a hear ing to deter mine the parties’ proportionate interests in the
proper ty , the trial court enter ed a written order finding that Ray mond, J ohn, and Br enda eac h owned a four- fiftee nths inter est in the proper ty , and Ly ndle owned a one-f

ifth interest. The
court based its ruling on th i s co u rt’s 2006 decision in Schnepf v. Schnepf
, No. 4-05-0817 (Jul y 26, 2006) (unpublished orde r under Supreme Court Rule 23). ¶ 21 In November 2012, the trial court found that the rea l estate could not be equitably divided betwee n the parties and order ed it sold pursuant to section 17-105 of the Code (735 I L CS 5/17-105 (West 2010)). This order rende red the previous order s in the case final for purposes of appe al. ¶ 22 These c onsolidated appe als followed.

¶ 23 I I . ANALYSI S ¶ 24 J ohn asser

ts that the trial court err ed by denyi n g h i s Fe b ru ar y 2 0 0 8 m o t i o n for substitut ion of

judge as of rig ht (735 I L CS 5/2-1001(a) (2) (West 2008)). J ohn corr ectly notes that any order s enter ed by a court following an improper denial of a motion for substitut ion of judge are void. Aussieke r v. City of Bloomington
, 355 I ll. App. 3d 498, 500, 822 N.E.2d 927, 929 (2005). B eca

use our resolution of J ohn’s claim of err or is disposi tive of Ly ndle’s
appea l, we beg in by addre ssing the court’s denial of J ohn’s motion for substitut ion ofjudge

.

¶ 25 A. Motion for Substitut ion of J udg e as of Right ¶ 26 Civil litigants in I llinois are entitled to one substitut ion of judge without cause as a matter of rig ht. 735 I L CS 5/2-1001(a) (2)( i) (West 2008). The trial court must grant a party ’s motion for substitut ion of judge as of rig ht if the motion “is prese nted befor e trial or hear ing beg ins and befor e the judge to whom it is prese nted has ruled on any substantial issue in the case .” 735 I L CS 5/2-1001(a) (2)( ii) (West 2008); Rodisch v. Commacho-E sparza , 309 I ll. App. 3d 346, 350, 722 N.E.2d 326, 329 (1999). A substantial i s s u e is one relating direc tly to the merits of the c ase. Id. at 350-51, 722 N.E.2d a t 330. ¶ 27 “The rig ht to substitut ion of judge is absolute when proper ly made, and the circ uit c ourt has no discretion to deny the motion.” Cincinnati Insurance Co. v. Chapman
, 2012 I L App (1st) 111792, ¶ 2 3
, 9 7 5 N.E.2d 203. “Section 2-1001(a )(2) of the Code is ‘to be liberally construed, and wher e the conditions are met, the trial court has no d i s cr et ion to deny the
reque st unless it is shown that the motion was made simply to delay or avoid trial.’ ” Illinois Licensed Bev erage Ass’n v. Advanta Leasing Servic es , 333 I ll. App. 3d 927, 932, 776 N.E.2d 255, 259-60 (2002) (quoting Sahoury v. Moses
, 308 I ll. App. 3d 413, 414, 719 N.E.2d 1157, 1158 (1 9 9 9 ))

. Be cause the trial court has no discretion to deny a proper motion for substitut ion of judg e as of rig ht, our revie w is de novo

. Id. , 776 N.E.2d at 260.

-5-¶ 28 In denying John’s motion for substitution of judge
, the trial court a cknowledg ed that it

had not y et made a substantial ruling in the case

. Rather, the court based its decision on the fac t that J ohn had an “ opportunity to te st the water s” prior to filinghis moti on beca use the
court had “pre viously indicated its position on issues g oing to the merits of [t he] complaint here in.” Ly

ndle and Br enda argue the court proper ly denied J ohn’s motion on this basis. J ohn

asser ts that this court has reje cted the “test the water s” doctrine and, beca use his motion met the statutory conditions, his rig ht to a substitut ion of judge should have been g rante d under section 2-1001( a)( 2) of the Code

. ¶ 29 The parties’ disag ree ment on this point is unde rstandable

. In fac t, c ases from this c ourt provide support for both parties’ positions. Compare Advanta Leasing Servic es , 333 I ll. App. 3d at 933, 776 N.E.2d at 261 (“[A] movan t ’s rig ht to substitut ion of judge as of rig ht is absolute, and the trial court does not have discretion to consider whether the movant had an opportunity to ‘test the water s.’ ”), with Curtis v. Lofy
, 394 I ll. App. 3d 170, 176, 914 N.E.2d 248, 253 (2009) (“A motion for substitut ion may also be denied, in the abse n ce o f substantive ruling
, if the mov an t h ad the opportunity to form an opinion as to the judge ’s

rea ction to her c laims.”). ¶ 30 Ad m i t t ed l y , the weig ht of appellate court authority supports Ly ndle and Br en d a’ s position that a trial court may deny a motion for substitut ion of judge as of rig ht, in the absenc e of a substantial ruling
, if the movant has had an opportunity to “test the water s” and form an opinion as to the court’s dispositi on toward his or her case

. See Chapman
, 2012 I L App (1st) 111792, ¶ 23, 975 N.E.2d 203; Curtis
, 394 I ll. App. 3d at 176, 914 N.E.2d at 253 (F ourth District); In re Estate of Gay
, 353 I ll. App. 3d 341, 343, 818 N.E.2d 860, 863 (2004) (Third District); City of Granite City v. House of Prayers, Inc.
, 333 I ll. App. 3d 452, 461, 775 N.E.2d 643, 650 (2002) (F ifth District). Howeve r, nothing in the text or purpose of section 2-1001(a )(2) provides a footing for this doctrine, and t h e s upreme court has never end o rs ed i t under the curr ent version of the statute. To explain how the “test the water s” doctrine came into e x istence, and why it is no longe r an appropr iate judicial supplement to the substituti on-of-

judge analy sis, we brief

ly revie w its origins a

nd evolution.

¶ 31 1. Substitut ion of Judge Unde r the Old Change of VenueStatute ¶ 32 Prior to 1993, section 2-1001 of the Code (then titled “Chang e of venue” and sometimes ref err ed to as the venue act) require d a movant seeking a substitut ion of judge to rec ite that he fea red the judge was prejudice d ag ainst him. I ll. Rev. Stat. 1991, ch. 110, ¶ 2-1001; Nunes

v. Northw est Hos

p i t a l
, 2 53 I ll. App. 3d 337, 342, 625 N.E.2d 376, 380 (1993). Howeve r, despite t he requirement that the petit ioner alleg e prejudice, the judge was not permitted t o “inquire as to the truthfulness o f t h e al l eg ations of prejudice .” Rosewood Corp. v. Transamerica Insurance Co.
, 57 I ll. 2d 247, 250-51, 311 N.E.2d 673, 675 (1974); see also Hoffmann v. Hoffmann , 40 I ll. 2d 344, 347, 239 N.E.2d 792, 794 (1968). ¶ 33 This a

p p r o a c h c reated conce rn among I llinois courts that parties might seek a substitution of judge not beca

use of a fea

r of prejudice
, but beca

use they had formed an opinion that the judge was unfavor ably disposed to their case

. In other words, a party with no sincere fea r of prejudice could use argu ment and courtroom discussion during the ear ly stag es of the

-6-proce eding to g et a fee l for the judge ’s leaning s in the case , then invoke its absolute rig ht to

a substitut ion of judge if it sensed the judg e would rule unfavor ably toward it on one issue

or another

. Wit h no mecha nism fo r t es t i n g the leg itimacy of the party ’s fea r of prejudice
, which it was require d to alleg e but not require d to prove, courts perc eived the s t atut ory sy stem as open to abuse

. ¶ 34 In Commissioners of Drainage D istrict No. 1 v. Goembe l
, 383 I ll. 323, 328, 50 N.E.2d 444, 447 (1943), the supr eme c ourt descr ibed the potential for abuse a s follows:
“It would be highly improper to permit an attorney repr esenting parties to a suit to try out the attitude of the trial judge on a hear ing as to part of the questions prese nted and, if his judgme nt on such qu es t i o n s wa s not in harmony with counsel’s view, to then permit counsel to asser

t th at the court was prejudice d and that a chang e of venue must be allowed.” ¶ 35 In Fenne ma v. Joyc e , 6 I ll. App. 3d 108, 2 8 5 N. E

. 2 d 1 5 6 (1 9 7 2 ), the First District intimated that, even a

bsent a substantial ruling
, litigants shoul d not be entitl ed to a c hang e of venue once the trial judg e has r evea led, throug h courtroom discussion, his views on the merits of the ca s e. The court explained that it was “not prepa red to hold that a pre- trial confe renc e could never rende r untimely a Motion for Chang e of Venue
, for we rec og nize the potential for abuse in a rule which would allow litigants to test the dispositi on of a trial judge during pre -t ri al
, while reta ining an absolute rig ht to a chang e of venue.” Id. at 111, 285 N.E.2d at 158. ¶ 36 In In re Marriage of Kozloff
, 101 I ll. 2d 526, 463 N.E.2d 719 (1984), the supreme c ourt took an indirect measure to curb perc eived abuse of the venue act. At the time, the appellate
court considere d eac h postdecre e petition filed following a judgme nt of dissoluti on of marria g e as a new p ro ce ed i n g. Id. at 529-30, 463 N.E.2d at 721. This rule led to abuse beca use if a party desired a substitut ion of judge afte r a substantial ruling had been made, it could simply voluntarily dismiss the petition and ref ile an identical petition, which woul d likely g et dockete d befor e a differ ent judge

. Even if the new petition was dockete d befor e the same judge, the party

reta ined its absolute rig ht to a chang e of ve nue bec ause a substantial rulin g h ad not y et been made in the proce eding s on the new petition. The supreme court reje cted the appellate court’s rule that eac h postdecre e petition constituted a new proce eding
, stating, “in our judgme nt it would lead to a s er i o u s ab use of the venue act. This court has long condemne d a litigant’s attempt to seek a chang e of venue afte r he has formed an opinion, based upon the court’s adver se ruling s, that the judge may be unfavor ably disposed towards his ca

use.” Id. at 530-31, 463 N.E.2d at 721. Howeve r, in addre ssing the a buse of the venue act, the court mere ly held that postdecre e petitions constitute continuations of the dissoluti on proce eding
, not new pr o ce ed ings. Id. at 531, 463 N.E.2d at 722. The court did
not hold, as a g ener al matter, that the mere opportunity to form an opinion as to the judge ’s dispositi on toward a

case barr ed the litiga

nt from there afte r see king a chang e of ve nue. ¶ 37 In In re Marriage of Ke nik
, 181 I ll. App. 3d 266, 271, 536 N.E.2d 982, 985 (1989), the First District aff

irmed the trial court’s denial of a petition for a chang e of venue beca use the trial judge had al re ad y ruled on substantial issues in the case

. In dicta
, howeve r, the court found that the parties’ discussion and argument befor e the judge at an ear lier court

-7-appea ranc e prec luded the motion for a chang e of venue. The court explained its position, as follows: “This exchang e prese nted [t he party seeking a chang e of venue] the opportunity to form an opinion as to the court’s rea ction to his claim, there by additionally fore closing [hi s] automatic right to a chang e of ve nue.” Id. ¶ 38 Finally
, in Hader v. St. Louis Southwestern Ry. Co.
, 207 I ll. App. 3d 1 0 0 1, 1009, 566 N.E.2d 736, 741 (1991) , the trial cour t held a hea

ring on the defendant ra ilway company ’s motion to continue and motion to bar the plaintiff’s expert witness, but the court continued the hear ing without ruling on those motions. Id. at 1007-08, 566 N.E.2d at 740. Ba sed on the extensive discussion at the hear ing, the parties would have been led to believe that the trial judge was g oin g t o d eny the railwa y company ’s motion for continuance

. Id. at 1008, 566 N.E.2d at 740. At the continued hear ing, the t ri al judge took up the railwa y company ’s petition for a chang e of venue. Id. The plaintiff’s attorney argued that the petition should be denied beca

use the attorn ey for the railwa y company “had alre ady g otten the ‘flavor or fee ling’ for the way the judge planned to rule on at least the motion to continue.” Id. The trial judge ag ree d and denied the petition. Id. In aff irming the trial court, the F ifth District cited Fenne ma and explained its decision, as follows:
“Eve n though the trial court did not rule on the motion to continue or the motion to bar plaintiff’s experts pr ior to the time the motion for chang e of venue was considere d, the [railway company ’s] attorney

was clea rly testing the tempera

ment of the trial c ourt not only on the moti o n t o co n t i nue, but also on the motion to bar plaintiff’s experts. There fore
, under the prese nt f acts, we find that the trial court did not err in de nying the [railway company ’s] mot ion for cha ng e of ve nue.” Id. at 1009, 566 N.E.2d a t 741. ¶ 39 What the afor ementioned case s have in common is that the party petitioning for a chang e of venue was require d to alleg e that he fea red the trial judge was prejudice d ag ainst him, but the proce dural fac ts of the case s sug g ested a p o s sible ulterior motive behind the party ’s desire to be hear d in front of a differ ent judg e. These decisions ref lect 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 befor e a judge who is prejudice d, whether actua lly or only by suspicion.” Bec ker v. R.E. Cooper Corp.
, 193 I ll. App. 3d 459, 462, 550 N.E.2d 236, 238 (1990)

.

¶ 40 2. Public Act 87-949 and Elimination of the Prejudice R equireme nt ¶ 41 Effe ctive J anuar y 1993, Pub l i c Ac t 8 7 -9 4 9 amended section 2-1001 of the Code and added section 2-1001.5 to distinguish betwee n “substitution of judge ” (735 I L CS 5/2-1001 (West 1992)) and “cha

ng e of venue” (735 I L CS 5/2-1001.5 (West 1994)). Pub. Act 87-949, § 1 (ef f. J an. 1, 1993). The Act also amende d section 2-1001(a )(2) to provide eac h party the rig ht to one substitut ion of judge without cause

. That section rea ds, i n p ertinent part, as follows: “(a ) A substitut ion of

judge in any civil action may be had in the following situations:

*** (2) Substi tution as of rig ht. When a party timely exercises his or her ri gh t t o a substitut ion without cause a s provided in this paragraph ( 2).

-8-(i) Eac h party shall be entitled to one substitut ion of judge without c ause as a matter of rig ht. (i i ) An application for substitut ion of judge as of rig ht shall be made by

m o t ion and shall be gra

nted i f i t is prese nted before trial or hearing begi n s an d befor e the judge to whom it is prese nted has ruled on any substantial issue in the

case , or if it is prese nted by consent of the partie s

. ” 7 3 5 I L CS 5/2-1001 (West 2008). ¶ 42 For the sake of avoiding confusion, we take this opportunity to briefly note the chang es in terminolog y cause d by the 1993 amendments to the Code. First, substitut ions of judge as of rig ht under the curr ent section 2-1001(a )(2) are made by “motion.” Under the old version of the statute and under section 2 -1 0 0 1(a) (3) of the new version (substituti on for cause ), substitut ions are made by “petition.” In re Marriage of O’Brien
, 2011 I L 109039, ¶ 28, 958 N.E.2d 647. Second, under the ol d statute, a substitution of judge a nd a subst itution of t he county in which the cause was to be hear d wer e both ref err ed to as a “cha

ng e of venue.” The

new version of the statute expli citly distinguishes betwee n substitut ion of judge (735 I L CS 5/2-1001 (West 2008)) and transfe r of the cause to another county , a “cha ng e of venue” (735 I L CS 5/ 2-1001.5 (West 2008)). ¶ 43 By amending section 2-1001 to include the rig ht to a substitut ion of judge without cause, the leg islature specific ally eliminated the requirem ent that a party provide a rea son for seeking a substitut ion. By the same token, the leg islature saved the courts from inquiring into the m otive behind a p ar ty ’s m otion for substi tution. The only exception rec og nized by the
supreme c ourt, of cour se, is when it is shown that the motion was made simply to delay or avoid trial. In re Estate of W ilson , 238 I ll. 2d 519, 557, 939 N.E.2d 426, 449 (2010). ¶ 44 Following passag e of Public Act 87-949, section 1, this court decide d In re Marriage of Roach
, 245 I ll. App. 3d 742, 746-47, 615 N.E.2d 3 0
, 3 3 (1993), which was the case that introduced the term “test the water s” to I llinois jurisprudenc e. Howeve r, in Roach
, we dealt with trial court proce eding s occur ring befor e J anuar

y 1993, an d t h e old chang e of venue sta t u t e co ntrolled our decision. Whil e discussing the law under the old chang e of venue statute, we c ited Kozloff

, Kenik, and Hader , and made the followingobservation:
“Eve n when the trial court has not ruled on a substantial issue, it appea rs the motion may be denied if the movant has had an opportunity to test the water s and form an opinion as to the court’s rea ction to his claim ( Kozloff
, 101 I ll. 2d at 531, 463 N.E.2d at 721; Kenik
, 181 I ll. App. 3d at 271, 536 N.E.2d at 984; Hader [, 207 I ll. App. 3d at 1007, 566 N.E.2d
at 740]), or if the movant is simply attempting to delay or av o i d trial.” Roach
, 245 I ll. App. 3d at 746, 615 N.E.2d at 33.
Immediately

followingthat sentenc e, we noted the following : “The leg islature has amende d section 2-1001 ***. Amended section 2-1001, which does not apply to this case , eliminates the nece ssity for the movant to rec ite that he fe ars the judge is prejudice d ag ainst him, and allows eac h party ‘one substitut ion of judge without

cause as a matter of rig ht.’ (73 5 I L C S 5/2-1001(a) (2)( i) (West 1992).) *** It is interesting that amende d section 2-1001 says nothing of situati ons where a movant has been able to te

st the waters , or wher e the motion is filed simply for delay
, although the

-9-section does require the motion to be ‘timely .’ ” (Emphasis added.) Roach
, 245 I ll. App. 3d at 746-47, 615 N.E.2d a t 33. ¶ 45 Six y ear s afte r Roach
, the “test the water s” doctrine resur fac ed in the First District case of In re Marriage of

Abma
, 308 I ll. App. 3d 605, 720 N.E.2d 645 (1999). That case involved a divorce proceeding occur ring under the new version of section 2-1001, but the appellate

co urt nonetheless applied the doctrine alluded to in Roach

. The First District stated, “[I ]n Roach
, the court also noted that even in the absence o f a s ub s t anti al ruling in the case , a motion for a chang e of venue may nonetheless be considere d untimely if the parties have had

an opportunity to disc ern the court’s dispositi on toward the merits of the case .” Abma
, 308 I ll. App. 3d at 611, 720 N.E.2d at 650. ¶ 46 I t a

ppear s the Abma court overlooke d the context of our discussion in Roach reg arding the “test the water s” doctrine. Our mention of that doctrine was an observation g leane d from

case law under the old version of the statute, and not intended to ref lect the amende d version of section 2-1001(a )(2)

. Moreove r, we viewed the new statute’s silence reg arding a movant’s ability to “test the water s” as an indication that the leg islature did not see fit to addre ss that issue. ¶ 47 In Scroggins v. Scroggins
, 327 I ll. App. 3d 333, 336, 762 N.E.2d 1195, 1198 (2002), we attempted to set the re cord stra ight r eg ardingthe “test the w ater s” doctrine , as follows: “Unde r prior statutes allowing the automatic substitut ion of a judge
, an inquiry could be made whether the motion was filed simply for delay or whether t h e movant had an opportunity to test the water s and form an opinion as to the court’s rea ction to his claim. [ Roach
, 245 I ll. App. 3d at 746-47, 615 N.E.2d at 33.] The prese nt version of section 2- 1001(a) (2), howeve r, has adopted a new test. Under the prese n t v er s ion, it is not

nece ssary to a lleg e that the judge is prejudice d ag ainst the defe ndant. [C itation.] Under the prese nt version of section 2-1001(a )(2)
, the rig ht to a substitut ion without cause must be ‘timely exercise[d].’ 735 I L CS 5/2-1001(a) (2) (West 2000). A party timely exercises his rig ht if his motion ‘is prese nted befor e trial or hear ing beg ins and befor e the judge to whom it is prese nted has ruled on any substan t i al i s s u e in the case .’ 735 I L CS 5/2- 1001(a) (2)( ii) (West 2000); Roach , 245 I ll. App. 3d at 747, 615 N.E.2d at 33.” ¶ 48 In Advanta Leasing Servic es , 333 I ll. App. 3d at 933, 776 N.E.2d at 261, we voiced our reje ction of the “test the waters ” doctrine more plainly
, stating, “a movant’s rig ht to substitut ion o f j u d ge as of rig ht is absolute, and the trial court does not have discretion to consider whether

the movant had a

n opportunity

to ‘test the wate rs.’ ” ¶ 49 Despite our attempts in Scroggins and A d va n t a t o cl ar i fy that the “test the wate rs”
approa ch was no longer g ood law beca use the leg islature amende d section 2-1001, the floodg ates had alre ady been opened. The Fifth District adopted the “tes t the water s” terminolog y in City of Granite City
, 333 I ll. App. 3d at 461, 775 N.E.2d at 650. Two y ear s later, the Third District adopted the doctrine in Gay
, 353 I ll. App. 3d at 343, 818 N.E.2d at 863. Even this court ha s been guilty of citingthe “test the waters” doctrine, a lbeit in dicta
, following Scroggins and Advanta

. See Curtis
, 394 I ll. App. 3d at 176, 914 N.E.2d at 253; In re Austin D. , 358 I ll. App. 3d 277, 281, 831 N.E.2d 1215, 1218 (2005). ¶ 50 The “test the water s” doctrine was rende red obsolete 20 y ear s ag o by introduction of the

-10-rig ht to a substitut ion of judge without cause under the new version of section 2-1001(a )(2)

.

The doctrine not only d o es n o thing to advanc e the functioning of section 2-1001(a )(2)
, it aff irmatively frustrates its purpose. By inviting t h e trial judge to make the potentially

nuance d, subj ec t ive determination of whether he has t ipped hi s hand at some point during the proce eding s, the doctrine undermines th e m o vant’s rig ht to have the fate of his case place d in the hands of a

differ ent judg e. ¶ 51 Moreove r, from the position of the appellate court, consistent and cer tain application of the doctrine i s n early impossibl e. J ustice McDa de thoughtf ully addre ssed this issue in her specia l concur

renc e in Gay , as follows: “[O]ur standard of revie w is de novo , but even if we had a transcr ipt of the proce eding s,

we would still be ig norant of inf lection, fa cial expressions or body languag e that could

more clea rly indicate whether or not the judge had actua lly tipped his hand. We have no objective basis for making a meaning ful judgme nt and are, therefor e, tot ally reliant on th e ju d g e ’ s o wn s u

b je c tive rec ollection and rec onstruction in revie wing his decision. T h is standard seems totally inappropriate for de novo revie w.” Gay , 353 I ll. App. 3d at 345, 818 N.E.2d at 864 (Mc Dade , J ., specia lly concur ring ).
J ustice McDa d e’ s conce rn is well illust rate d in Br enda’ s brief to this court, in which she
argues, “Plaintiff J ohn Schnepf and his attorney *** had the opportunity to observe the Trial Court’s posture and manner isms which could have indicated her position reg arding the
arguments which counsel wer e prese nting at that time.” This might be true, but fo r al l we know J udg e L ag oski presided ov er t h e h ea ri ng like a champion poker player. Under a de

nov o r e v ie w , we simply have no way of acc ounting for these potentially signific ant nonverba l fac tors. ¶ 52 J ustice McDa de articulated an additional, more fundame ntal flaw in the “test the wate rs” doctrine, a s follows:
“It appears t hat an acknow ledg ment that one has ‘tipped his hand’ is tantamount to a concession that he has prejudg ed the case and is
, there fore
, biased. I t seems to me t hat such a finding oug ht to mandate a rec usal rathe r than milit at i n g ag ainst it. As it now stands, if the judge has not formed an opinion and g iven the parties some inkling of what that opinion is, t hen a party is a ble to take a rec usal as a matter of rig ht; if, on the other hand, the judg e has formed a n opinion before the evidenc e has be en presented a nd has tipped his hand to that eff

ect, he must rema in as the judge in the case

. Whil e I understand and appre ciate the need to discourag e forum shopping, this result makes no sense to me ***.” (Emphase s in orig inal.) Id. at 345-46, 818 N.E.2d at 864-65 (McDa de, J
., specia lly

concur ring ).
We ag ree with J ustice McDa de’s observations and take this opportunity to add some of our

own. ¶ 53 First, the “test the water s” 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 rig ht to a change o f v enue in both civil and criminal case s is absolute.” Rosewood Corp.
, 57 I ll. 2d at 250, 311 N.E.2d at 675. Under the old version of the statute, the “test the water s” doctrine was seen by many as an appropr iate

-11-lay er of judicial g loss intended to limit chang es of venue to those nece ssary to re m ed y a

party ’s sincere fea

r o f p r ejudice. Fr eedom 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, howeve r, prejudice is irrele vant to section 2 -1001(a)(2)
, and parties are no longe r limit ed to that single basis for seek i n g a s ub s t itution of judge

. Under a liberal construction of the curr ent statute, par ties are fre e to move for a substitut ion of judge as of rig ht for whateve r rea son they wish, provided their p u rpose is not to delay or avoid trial ( Advanta , 333 I ll. App. 3d at 932, 776 N.E.2d at 259-60) . Acc ording ly , when the statutory conditions are met and there is no showing that substitut ion is soug ht to delay or avoid trial, judge s have no authority to inquire into the movant’s rea son for seeking substitut ion and to deny the motion if that reason doe s not meet their appr oval. ¶ 54 Second, the conce rn over “judg e shopping” is alre ady addre ssed by the require ment that the m otion be presented “befor e trial or hearing beg ins and befo re t h e j u dg e to whom it is
prese nted has ruled on any substantial issue in the case .” 735 I L CS 5/2-1001(a) (2)( ii) (West 2008). By preve nting a party from seeking substitut ion afte r the judge has made a substantial ruling
, section 2-1001 (a )(2) (ii) limit s the party ’s ability to discern whether the judge is fa v orably disposed to their position. Gra nted, section 2-1001(a )(2) (ii) cannot preve nt al l instances of

judge shopping. Ajudge might roll his eyes during a pre trial confe renc e or do something else that reve als his opinion but does not fore close a motion for substitut ion under section 2-1001(a )(2) (ii). Howeve r, the leg islature has drawn a brig ht line with s ec tion 2- 1001(a) (2)( ii). Th i s brig ht line saves the trial and appellate courts from eng ag ing in the

nuance d, subjective deter mination of whether the t rial judge had tipped his hand, and it provides cer

tainty to litigants who may wish to exercise their right under section 2- 1001(a) (2). The “test the waters” doc trine nee dlessly obscure s an otherw ise brig ht line. ¶ 55 Fi n all y , we cannot acc ept a doctrine that would allow a trial judge to so easily , eve n inadver tently
, exti nguish a party ’s “absolute” rig ht to a substitut ion without cause

. Under the “test the water s” doctrine, a trial judge defe ats a party ’s rig ht under section 2-1001(a )(2) by doing any thing that might g ive 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 defe at the other party ’s rig ht under section 2-1001(a )(2) by deliberately eng ag ing in courtroom discussion in an eff ort to

cause the judge to unwittingly express an opinion on the merits of the case

. We do not believe the leg islature intended to cre ate such a vulnera ble rig ht, only to rest it in the hands of those who mig ht wish to deny a par ty ’s use of that rig ht. ¶ 56 Having now expli citly reje cted the “test the water s” doctrine, we turn to the merits of the

case befor e us.

¶ 57 B. The Trial Court Err ed by Deny ing John’s Motion for
Substi tution of J udg e as of Right ¶ 58 The rec ord indicates that the only order s enter ed b ef o re J o h n fi l ed h i s motion for substitut ion of judge wer e rela ted to scheduling and continuance s, which are not considere d substantial ruling s. See Scroggins
, 327 I ll. App. 3d at 336, 762 N.E.2d at 1198. Acc ording ly
, the trial cour

t erre d by deny ing John’s motion for a substituti on of judg e as of rig ht.

-12-¶ 59 I I I . CONCLUSI ON

¶ 60 The trial court’s order s following the improper denial of J ohn’s motion for substitution in Marc h 2008, including the May 2009 ruling on the parties’ interests in the prope rty , are void. See Aussieke r , 355 I l l

. Ap p

. 3 d at 500, 822 N.E.2d at 929. Acc ording ly
, we vacate those order s and rema

nd the ca se with dir ections to grant J ohn’s motion for substitut ion of j u d ge as of rig ht pursuant to section 2-1001(a )(2) of the Code. 735 I L CS 5/2-1001(a) (2) (West 2012).

¶ 61 Vac ated in par t and re manded with dire ctions.

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