delivered the opinion of the court:
Plaintiffs, Richard A. Anderson and Sandra E Anderson, appeal the judgment of the trial court in favor of defendants, Donald J. Kohler, Betty J. Kohler, and Arrowhead Development Group, following a bench trial on plaintiffs’ complaint. We agree with plaintiffs that the tried court violated their due process rights when, over their objection, the court relied on a transcript of their case-in-chief from a prior trial on their complaint rather than let them present their case-in-chief anew before the court. We reverse and remand.
The background of this matter is set forth in our prior decision, Anderson v. Kohler, No. 2 — 02—1274 (2003) (unpublished order under Supreme Court Rule 23), and we recapitulate only what is necessary to explain our decision here. Plaintiffs sued defendants on an alleged oral contract for the sale of the Kohlers’ land to plaintiffs. The complaint proceeded to a bench trial before Judge Douglas R. Engel. At the close of plaintiffs’ case-in-chief, defendants moved under section 2 — 1110 of the Code of Civil Procedure (735 ILCS 5/2 — 1110 (West 2000)) for a finding in their favor. In ruling on the motion, Judge En-gel did not weigh the evidence or assess the credibility of the witnesses but found, as a matter of law, that plaintiffs failed to present a prima facie case for the existence of an oral contract for the sale of land.
Plaintiffs appealed, and we reversed the trial court’s decision. We held that plaintiffs had presented a prima facie case. Anderson, slip op. at 9. We remanded for “further proceedings” without specifying how the trial court should conduct a new trial on remand. Anderson, slip op. at 11. While the appeal was pending, Judge Engel retired. Judge Richard J. Larson was assigned the case, which proceeded again to a bench trial. Over plaintiffs’ objection, Judge Larson barred them from presenting their case-in-chief again and instead relied on the transcript of their case-in-chief before Judge Engel. Plaintiffs were, however, allowed to present rebuttal following defendants’ case. At the close of the evidence, Judge Larson found the witnesses for the parties “diametrically opposed, particularly as it related to the alleged oral contract to sell real estate.” Judge Larson noted that “plaintiff Richard Anderson testified there was an oral contract to sell land” while “defendant Donald Kohler testified there was no oral contract to sell.” Judge Larson found Richard Anderson and Donald Kohler “equally creditable” and David Anderson, Richard’s son who also testified, “credible.” Impliedly finding Donald Kohler more credible than Richard and David Anderson, the trial court entered judgment for defendants. Plaintiffs filed this timely appeal.
Plaintiffs attack both the procedure of the trial and the substance of its outcome. As to the procedural aspect, plaintiffs argue that the trial court committed reversible error when, over their objection, Judge Larson relied on the transcript of their case-in-chief from the prior trial in lieu of live testimony. Plaintiffs argue that, though credibility was a “central focus” of their case at trial, Judge Larson heard “only a portion” of their witnesses’ testimony and did not have a “full opportunity” to observe the demeanor of those witnesses.
Plaintiffs cite In re Marriage of Sorenson,
The appellate court noted that, though prior cases “held that a successor judge may properly issue an order based upon a predecessor judge’s findings of fact,” the present case involved “a situation where a successor judge issued an order based on original findings of fact discerned from the record of prior proceedings.” (Emphasis added.) Sorenson,
“While the courts of other jurisdictions are divided on the issue of whether a successor judge may make findings of fact based upon a transcript of proceedings over which another judge presided, it is generally held that such a procedure is improper in the absence of a stipulation by the parties. (See generally Annot., 22 A.L.R.Sd 922 (1968).) The rationale of this holding is the longstanding principle that a litigant is entitled to a resolution of factual questions by a trier of fact who has been afforded an opportunity to assess the credibility of the witnesses by observing their demeanor. The seriousness with which this principle is regarded is evidenced by the fact that even when parties stipulate to a resolution of factual questions by a successor judge who reviews a record of prior proceedings, a new trial may nevertheless be warranted where critical determinations necessarily hinge upon the credibility of one witness or a set of witnesses over another. (Moore Golf, Inc. v. Lakeover Golf & Country Club, Inc. (1975), 49 App. Div. 2d 583,370 N.Y.S.2d 156 .)” Sorenson,127 Ill. App. 3d at 969 .
Applying these principles, the appellate court vacated and remanded. The court held that the stipulation of the parties was insufficient to warrant Judge Durr in deciding the issue of custody based on transcripts of the proceedings before Judge Maddox. The court remarked that the testimony before Judge Maddox was “contradictory on matters crucial to a determination of the comparative parental fitness” and, therefore, Judge Durr “could have reached his decision only by weighing the testimony as it appeared in the transcript and necessarily attributing greater credibility to the testimony of the respondent and the witnesses called on respondent’s behalf.” Sorenson,
“[W]e do not believe the interests of [Sarah] were best served by credibility thus attributed on the basis of data which was inherently incomplete. If, by reason of their stipulation, [the parties] were not entitled to a determination of their comparative parental fitness by a trier of fact who was afforded the opportunity to discern truthfulness by observing the demeanor of contradictory witnesses, [Sarah], whose life is singularly affected by such a determination, was so entitled. On this basis, we find the stipulation, insofar as it relates to a finding of parental fitness, inconsistent with the declared policy of [this] State.” Sorenson,127 Ill. App. 3d at 970 .
Defendants propose that, because the case at bar is not “a criminal case or a support case,” Sorenson is inapplicable. In our view, the principles of Sorenson are not so limited. The only tenable reading of Sorenson is that the court embraced the majority rule of other jurisdictions: absent the agreement of the parties, a successor judge may not make credibility determinations based on a transcript of proceedings over which another judge presided.
1
See Annotation, K. Kemper, Power of Successor or Substituted Judge, in Civil Case, to Render Decision or Enter Judgment on Testimony Heard by Predecessor,
Trzebiatowski I and Trzebiatowski II involved a suit in equity by the plaintiff to invalidate, as procured by fraud, a trust agreement between her and the defendant. After a bench trial, the trial court entered judgment for the plaintiff. On direct appeal to the supreme court, the defendant argued that the trial court based its decision “upon a theory not advanced in the pleadings and to which he had no opportunity to defend.” Trzebiatowski I,
On remand, the chancellor who had heard the evidence in the original proceedings granted a change of venue, and the case was tried before “a new judge who, over proper and strenuous objection by defendant, permitted plaintiff to introduce into evidence the transcript of the proceedings at the original hearing even though there was no showing plaintiffs witnesses were not available on the second trial.” Trzebiatowski II,
“The full hearing contemplated by due process of law contemplates that all of the evidence should be submitted before a single judge or master who may see the witnesses and weigh their testimony and determine their credibility.” Trzebiatowski II,24 Ill. 2d at 25-26 .
The court declared that “[i]t was the clear duty of the chancellor here to conduct a trial de novo.” Trzebiatowski II,
As authority for the principle of due process it articulated, Trzebiatowski II cited two Illinois cases, People ex rel. Reiter v. Lupe,
“[The second master] has not seen or heard the witnesses produced by plaintiff at the former hearing. Since a consideration of the proper weight or sufficiency of plaintiffs evidence is a necessary subject to be considered by him in interpreting the evidence offered by defendants, it will be seen that the defendants would be deprived of their fundamental right to a decision by a master who saw the witnesses on the stand and heard all their testimony. One of the duties of a master is to decide upon the credibility of the witnesses, a duty which he cannot fully perform if he does not see the witnesses. The full hearing required by due process of law contemplates that all of the evidence should be submitted before a single judge, master or other tribunal which could see the witnesses, weigh their testimony and determine their credibility. In the absence of findings and report from the master, in order to afford the parties a hearing within the recognized meaning of that word, it is the duty of the court to direct a trial de novo before another master or before itself. [Citation.]
* * *
*** No one could contend in a law case that a plaintiff who had obtained a decision in an Appellate Court, reversing the ruling of a trial court which had taken his case away from the court or jury, would have the right to present his evidence from the first trial in transcript form at a new trial.” Reiter,
In Mills, the plaintiff sued to have a quitclaim deed declared void. The evidence was heard by a master in chancery (the first master), who submitted proposed conclusions of law and fact to the trial judge. Later, the plaintiff’s complaint was dismissed for failure to name a necessary party. The plaintiff filed an amended complaint, and, over the plaintiffs objection, the case was referred to a different master (the second master). The second master conducted a hearing de novo. On the second master’s recommendation, the trial judge dismissed the amended complaint “for want of equity.” Mills,
Several points may be drawn from the holdings in Sorenson, Trzebiatowski II, Reiter, and Mills. First, the latter three cases confirm that the due process mandate — that findings of fact based on the demeanor of witnesses be made by a judge who observed the witnesses — is not limited to marriage dissolution cases. Though they all dealt with equitable claims in chancery courts, nothing in the cases suggests that the elementary principle of due process they espouse does not have full sway in proceedings at law, as Sorenson would later illustrate. Indeed, Reiter reached its holding in part by drawing comparisons to proceedings at law, noting that “[n]o one could contend in a law case that a plaintiff who had obtained a decision in an Appellate Court, reversing the ruling of a trial court which had taken his case away from the court or jury, would have the right to present his evidence from the first trial in transcript form at a new trial.” Reiter,
Second, the requirement of due process is not met if all the witnesses who testified before the predecessor judge also give some testimony before the successor judge. The supreme court’s comment in Reiter that the second master saw none of the witnesses who testified before the first master (see Reiter,
Third, as the supreme court authorities imply, and as Sorenson makes explicit, a successor judge may render a decision based on a predecessor judge’s findings of fact. See Reiter,
Fourth, any litigant in the proceeding may assert the due process right. In addition, a litigant has standing to object where any of the testimony was not presented before the judge who made the credibility findings. This includes testimony from the litigant’s own witnesses as well as testimony from another litigant’s witnesses. In the case at bar, plaintiffs complain that they were unable to present their own case-in-chief again. In Trzebiatowski II and Reiter, however, it was the plaintiffs’ decisions to stand on the transcripts of their cases-in-chief that triggered the defendants’ objections.
Fifth, the due process mandate is not absolute. A successor judge may rely on transcripts of a prior trial in lieu of proceeding de novo where the witnesses who testified at the prior trial are “not available on the second trial” (Trzebiatowski II,
Defendants contend that Judge Larson’s decision to proceed as he did over plaintiffs’ objection finds vindication in In re Marriage of Fotsch,
The Fotsch court proceeded to distinguish Sorenson on one further ground:
“Finally, in Sorenson, the successor judge entered the judgment based solely on the transcripts of the prior hearing and never heard testimony from a single witness — not even the parties. In the case before us, the successor judge will have an opportunity to hear testimony from the parents, their experts and various other witnesses, and will have an opportunity to interview the children in camera.” Fotsch,
The Fotsch court offers this rationale as seemingly independent of its earlier observation that the parties voluntarily agreed to the use of transcripts from the prior proceeding. If the suggestion is that due process is always satisfied if all witnesses from the prior proceeding appear before the successor judge, even if not all of the evidence in the case is presented anew to that judge, then Fotsch is out of step with supreme court authority. In Trzebiatowski II, the supreme court held that "all of the evidence should be submitted before a single judge or master who may see the witnesses, weigh their testimony and determine their credibility.” (Emphasis added.) Trzebiatowski II,
In the present case, Judge Engel made no credibility determinations in the prior proceeding, and plaintiffs did not agree that the transcripts from that proceeding should stand as their case-in-chief before Judge Larson. Judge Larson, therefore, was required to conduct a trial de novo, which he refused to do.
The due process concerns in this case are particularly acute. Plaintiffs’ claim of an oral agreement is based on a conversation between Richard Anderson, his son David, and Donald Kohler that took place in the spring of 1994 on Richard’s property. Richard, David, and Donald all testified to this conversation but, as Judge Larson observed, Donald’s version of the conversation “diametrically opposed” Richard’s and David’s. In plaintiffs’ case-in-chief (before Judge Engel) and in their rebuttal case (before Judge Larson), Richard testified that, during the spring 1994 conversation, Donald “agreed to sell” Richard a parcel of land. David testified, in plaintiffs’ case-in-chief, that Donald said he was “more than willing” to sell the land. David did not testify to the conversation on rebuttal. In the defense case (before Judge Larson), Donald directly contradicted Richard and David, testifying that he offered only a sublease of the land to Richard and said he “maybe” would agree to a sale later.
Judge Larson had occasion to observe Richard and David Anderson as they testified in plaintiffs’ rebuttal case. This exposure was limited in a material respect, however. While both Richard and David had testified about the crucial spring 1994 conversation in plaintiffs’ casein-chief before Judge Engel, only Richard testified to that conversation in the rebuttal case before Judge Larson. David’s rebuttal testimony touched only on matters relevant to plaintiffs’ case for damages. Judge Larson, therefore, had no opportunity to observe David as he testified to an event integral to plaintiffs’ case. Whether Judge Larson nonetheless saw enough of David to have an adequate sense of his credibility is immaterial, for “[t]he full hearing contemplated by due process of law contemplates that all of the evidence should be submitted before a single judge or master who may see the witnesses, weigh their testimony and determine their credibility.” (Emphasis added.) Trzebiatowski II,
Accordingly, we reverse the trial court’s judgment for defendants on count I of plaintiffs’ complaint, which sought specific performance of the alleged oral contract. We also reverse the trial court’s dismissal of the remaining count, count III, which sought damages, because the dismissal was premised on the judgment on count I. If this case proceeds to a trial again on remand, the trial court must conduct a trial de novo because plaintiffs oppose the substitution of transcripts from the prior trial for live testimony.
For the foregoing reasons, we reverse the judgment of the circuit court of De Kalb County and remand this cause for further proceedings consistent with this opinion.
Reversed and remanded.
McLAREN and BYRNE, JJ., concur.
Notes
This is, according to Sorenson, what the law requires at a bare minimum. Under Sorenson, even the stipulated use of transcripts in lieu of the de novo presentation of evidence may be improper where witness credibility is central to the case or where other important interests exist, such as those of the child in a custody proceeding.