Bowman v. Ottney, 2015 IL 119000

In 2009 Bowman sued Dr. Ottney for medical malpractice (case No. 09 L 28). Judge Overstreet presided and made substantive pretrial rulings over several years.
Bowman voluntarily dismissed that suit under 735 ILCS 5/2-1009(a) and refiled the same claim in 2013 under 735 ILCS 5/13-217 (case No. 13 L 41), assigned to the same judge.
Immediately after refiling Bowman moved for a substitution of judge as of right under 735 ILCS 5/2-1001(a)(2)(ii); Ottney opposed, arguing Bowman had already “tested the waters” in the dismissed suit.
The trial court denied the substitution motion but certified the question under Supreme Court Rule 308: whether a court may deny a substitution filed in a refiled action when the same judge made substantive rulings in the prior (dismissed) proceeding.
The appellate court answered yes, applying the “test the waters” doctrine; this Court granted review and affirmed the appellate court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a substitution as of right under §2-1001(a)(2)(ii) must be granted in a refiled action when the judge made substantive rulings in the earlier, voluntarily dismissed action	Bowman: “in the case” means the currently pending action; because no substantive rulings were made in the refiled case the substitution must be granted	Ottney: §2-1001 must be read to cover the overall controversy; allowing substitution after voluntary dismissal would enable judge shopping; court may deny substitution if judge previously made substantive rulings between the parties	Held: Trial court has discretion to deny an immediately filed substitution in a refiled action if the same judge made substantive rulings in the prior voluntarily dismissed proceeding; voluntary dismissal does not reset the right to substitution

Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45 (2007) (limits of Rule 308 and certified-question review)
In re Estate of Wilson, 238 Ill. 2d 519 (2010) (section 2-1001 construed liberally but subject to statutory conditions; courts may guard against judge shopping)
Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496 (1997) (refiling under §13-217 creates a new action for some purposes)
Hoffmann v. Hoffmann, 40 Ill. 2d 344 (1968) (timeliness and abuse/delay considerations in substitution practice)
Krautsack v. Anderson, 223 Ill. 2d 541 (2006) (avoid constructions defeating statute's purpose)
River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290 (1998) (treatment of a single cause of action across proceedings)