Bowman v. Ottney
2015 IL App (5th) 140215
Ill. App. Ct.2015Background
- Connie Bowman (special administrator) filed a medical-malpractice suit against Dr. Ottney in Jefferson County as case No. 09-L-28; Judge David K. Overstreet made substantive pretrial rulings in that action.
- Bowman voluntarily dismissed the 09-L-28 action under 735 ILCS 5/2-1009; the dismissal was without prejudice.
- Bowman refiled the same/similar claims against Ottney as case No. 13-L-41 within the statutory one-year refile period; the new case was coincidentally reassigned to Judge Overstreet.
- Bowman immediately moved for a substitution of judge as of right under 735 ILCS 5/2-1001(a)(2)(ii) before the judge in the refiled case had made any rulings.
- Defendant objected, arguing Bowman had already had the opportunity to “test the waters” with Judge Overstreet in the dismissed action and thus the substitution could be denied.
- Trial court denied the substitution; the Fifth District accepted a certified question under Supreme Court Rule 308 asking whether a trial court may deny an immediately filed substitution motion in a refiled case where the judge made substantive rulings in the previously dismissed case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a trial court may deny an immediately filed substitution of judge in a refiled action when the same judge made substantive rulings in the prior voluntarily dismissed action | Bowman: Refiled action is a new, distinct case; statutory right to one substitution as of right applies if no substantive rulings have been made in the new case | Ottney: Plaintiff had opportunity to "test the waters" in the prior action; allowing substitution would permit judge-shopping and circumvent venue limitations | Court: Yes. Trial court has discretion to deny the substitution where substantive rulings were made in the previously dismissed case, because the "test the waters" doctrine prevents judge-shopping |
Key Cases Cited
- Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496 (1997) (refiled action is a new and distinct proceeding)
- In re Marriage of Kozloff, 101 Ill. 2d 526 (1984) (condemned use of voluntary dismissal to shop for judges; policy against repeated forum manipulation)
- City of Granite City v. House of Prayers, Inc., 333 Ill. App. 3d 452 (2002) (Fifth District disfavors judge-shopping; applies ‘‘test the waters’’ rationale)
- Niemerg v. Bonelli, 344 Ill. App. 3d 459 (2003) (Fifth District: allowing substitution after a party had opportunity to test the court defeats policy against judge-shopping)
- In re Estate of Gay, 353 Ill. App. 3d 341 (2004) (Third District: substitution may be denied where movant had pretrial opportunity to assess judge’s disposition)
- Beahringer v. Hardee’s Food Systems, Inc., 282 Ill. App. 3d 600 (1996) (statutory right to substitution should be liberally construed)
- In re Marriage of Paclik, 371 Ill. App. 3d 890 (2007) (trial court may deny substitution when motion is made to delay or avoid trial)