THIRD DIVISION 

December 27, 2017 

2017 IL App (1st) 172045 

No. 1-17-2045 

ANGELA WILLIAMS, a Minor, by Her Father and ) Appeal from the 

Next Friend RICHARD WILLIAMS, and ) Circuit Court of 

REGINA HOLLOWAY, ) Cook County. 

) 

Plaintiffs-Appellees, ) 

) 

v. ) No. 17 L 3861 

) 

GREGORY LEONARD, Lakeshore Recycling ) 

Systems, LLC, and LRS Holdings, LLC, ) 

) 

Defendants. ) Honorable 

) William E. Gomolinski, 

(Gregory Leonard, Defendant-Appellant.) ) Judge Presiding. 

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

Justices Fitzgerald Smith and Lavin concurred in the judgment and opinion. 

OPINION 

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

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

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

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

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

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

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

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

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

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

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

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¶ 2 BACKGROUND 

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

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

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

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

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

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

November 2016, plaintiffs filed a second amended complaint, and later that month employerdefendants moved to dismiss certain counts. In February 2017, the trial court granted employerdefendants’ motion to dismiss with prejudice. In April 2017, plaintiffs moved for voluntary 

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

motion for voluntary dismissal. 

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

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

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

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

to an administrative order of the circuit court. In May 2017, defendant filed a motion for 

substitution of judge as a matter of right pursuant to section 2-1001(a)(2) of the Code (735 ILCS 

5/2-1001(a)(2) (West 2016)). Plaintiffs objected to defendant’s motion to substitute judge based 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

jurisdiction to hear this appeal. 

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

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

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

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

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

¶ 7 ANALYSIS 

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

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

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

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

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

changes that fact. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

situations: 

*** 

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

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

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

without cause as a matter of right. 

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

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

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

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

by consent of the parties. 

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

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

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

grounds for denying an otherwise timely application for 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

dissenting). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“The ‘test the waters’ doctrine was rendered obsolete 20 years ago by 

introduction of the right to a substitution of judge without cause under the new 

version of section 2-1001(a)(2). The doctrine not only does nothing to advance 

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

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

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

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

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

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

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

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

Roach, the Fourth District wrote: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

right if his motion ‘is presented before trial or hearing begins and before the judge to whom it is 

presented has ruled on any substantial issue in the case.’ ” (quoting 735 ILCS 5/2-1001(a)(2)(ii) 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the other. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“In a case which had previously been voluntarily dismissed pursuant to 735 ILCS 

5/2-1009 and then subsequently re-filed, does the trial court have discretion to 

deny a Plaintiff’s immediately filed Motion for Substitution of Judge, brought 

pursuant to 735 ILCS 5/2-1001, based on the fact that the Court had made 

substantive rulings in the previously dismissed case?” (Internal quotation marks 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

substantial matters in the previously dismissed suit.” Id. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court explained: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

dismissed and refiled.” (Emphasis added.) 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¶ 21. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

section 2-1001(a)(2). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

does not suggest any ulterior motive.) 

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

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

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

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

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

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

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

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

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

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

case,” is unpersuasive. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

asserts. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

rulings in the proceedings between the parties. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

of filings in the two state lawsuits.” Id. 

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

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

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

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

previously filed case: 

“We realize that Bowman addressed the specific circumstance where a 

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

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

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

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

procedural maneuvering, as in Bowman, constitutes impermissible and blatant 

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

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

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

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

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

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

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

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

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

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

as was the Bowman court. See id. 

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

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

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

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

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

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

no longer timely). 

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

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

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

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

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

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

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

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

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

motion to substitute judge as of right. 

¶ 35 CONCLUSION 

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

¶ 37 Affirmed. 

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