Bowman v. Ottney

• Decision Date: 17 December 2015
• Docket Number: No. 119000.,119000.
• Citation: 48 N.E.3d 1080
• Parties: Connie L. BOWMAN, Special Adm'r of the Estate of Char L. Bowman, Deceased, Appellant, v. Michael D. OTTNEY, D.O., Appellee.
• Court: Illinois Supreme Court

48 N.E.3d 1080

Connie L. BOWMAN, SpecialAdm'r of the Estate of Char L. Bowman, Deceased, Appellant

v.Michael D. OTTNEY, D.O., Appellee.

No. 119000.

Supreme Court of Illinois.

Filed Dec. 17, 2015.

Rehearing Denied Jan. 19, 2016.

John J. Hopkins, of Alton, for appellant.

Brad A. Elward, of Peoria, and Richard K. Hunsaker and Sara A. Ingram, of Edwardsville, all of Heyl, Royster, Voelker & Allen, for appellee.

Prince Law Firm, of Marion, for amicus curiaeIllinois Trial Lawyers Association.

Beth A. Bauer and Brian D. Lee, of HeplerBroom, LLC, of Edwardsville, for amicus curiaeIllinois Association of Defense Trial Counsel.

OPINION

Justice FREEMANdelivered the judgment of the court, with opinion.

¶ 1Plaintiff, Connie L. Bowman, as special administrator of the estate of Char L. Bowman, brought a medical malpractice action against defendant, Michael D. Ottney, D.O., seeking recovery for injuries allegedly caused by the negligent treatment of decedent, Char L. Bowman.During pretrial proceedings on the claim, the circuit court of Jefferson County made rulings on substantial issues.Thereafter, Bowman voluntarily dismissed her complaint and subsequently refiled the suit.The refiled suit was assigned to the same judge who had presided over the earlier proceedings, and Bowman immediately moved for substitution of judge as of right under section 2–1001(a)(2)(ii) of the Code of Civil Procedure(Code)(735 ILCS 5/2–1001(a)(2)(ii)(West 2014)).The circuit court denied the motion, but certified a question to the appellate court pursuant to Illinois Supreme Court Rule 308(eff. Jan. 1, 2015) as to whether a trial court had discretion to deny a motion for substitution of judge filed by a plaintiff, where the court had ruled on matters of substance in plaintiff's previously dismissed suit.A divided panel of the appellate court answered the certified question in the affirmative.389 Ill.Dec. 88, 2015 IL App (5th) 140215.This court granted Bowman's petition for leave to appeal.Ill.S.Ct. R. 315(eff. Jan. 1, 2015).For the following reasons, we affirm the judgment of the appellate court.

¶ 2 BACKGROUND

¶ 3 In June 2009, Bowman filed a complaint for medical malpractice against defendants, Dr. Michael D. Ottney and Core Physician Resources, P.C., seeking recovery for the allegedly negligent medical treatment of decedent, Char L. Bowman.Bowman's complaint, which was filed in Jefferson County, was docketed as “09 L 28” and was assigned to be heard by Judge David Overstreet.In the ensuing four years, Judge Overstreet presided over extensive pretrial proceedings, during which he issued rulings on substantial issues such as the disclosure of certain materials in discovery.After these rulings but prior to trial, Bowman voluntarily dismissed her complaint, pursuant to section 2–1009(a) of the Code (735 ILCS 5/2–1009(West 2014) ).Four months later, Bowman refiled her cause of action against Ottney, in accordance with section 13–217 of the Code (735 ILCS 5/13–217(West 2014) ).In her second complaint, also filed in Jefferson County, Bowman named Ottney as the sole defendant and asserted the same claim as that previously alleged in her 2009 complaint.Bowman's second complaint was docketed as “13 L 41” and was assigned to be heard by Judge Overstreet.Bowman immediately filed a motion for substitution of judge as of right under section 2–1001(a)(2)(ii) of the Code (735 ILCS 5/2–1001(a)(2)(ii)(West 2014)).Ottney objected to the motion on the ground that it was not timely because Judge Overstreet had made rulings on substantial issues during the pretrial proceedings on the 2009 complaint prior to its voluntary dismissal.Citing to the decision in Ramos v. Kewanee Hospital,2013 IL App (3d) 120001, 372 Ill.Dec. 564, 992 N.E.2d 103, Ottney contended that Bowman's motion for substitution of judge should be denied because she had “tested the waters” during the proceedings on her voluntarily dismissed 2009 complaint.

¶ 4The circuit court denied Bowman's motion for substitution of judge, but granted her request for certification of the following question for interlocutory appeal under Rule 308(a) :

“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?”

¶ 5The appellate court allowed Bowman's application for leave to appeal under Rule 308 and answered the certified question in the affirmative.Relying, in part, on the analysis in Ramos v. Kewanee Hospital, the majority held that Bowman's motion for substitution of judge in the 2013 suit was properly denied under the “test the waters” doctrine.389 Ill.Dec. 88, 2015 IL App (5th) 140215, ¶¶ 16–17, 389 Ill.Dec. 88, 25 N.E.3d 733.The majority noted that this doctrine permits the denial of an initial motion for substitution of judge before substantial rulings have been made, if the party presenting the motion has been able to form an opinion as to the court's disposition toward his or her case.Id.¶ 10.The court held that the doctrine was applicable and justified denial of Bowman's motion because she had “tested the waters” during her voluntarily dismissed 2009 suit.Id.¶¶ 16–17.One justice dissented, expressing the view that the circuit court judge had no discretion to deny the motion for substitution because all of the statutory prerequisites were met in the refiled action and because the “test the waters” doctrine has been discredited and rejected.Id.¶¶ 24–25(Stewart, J., dissenting)(citingSchnepf v. Schnepf,2013 IL App (4th) 121142, 375 Ill.Dec. 75, 996 N.E.2d 1131 ).

¶ 6This court allowed Bowman's petition for leave to appeal.Ill.S.Ct. R. 315(eff. July 1, 2013).We subsequently allowed the Illinois Trial Lawyers Association to submit an amicus curiae brief in support of Bowman, and the Illinois Association of Defense Trial Counsel to submit an amicus curiae brief in support of Ottney.Ill. S.Ct. R. 345(eff. Sept. 20, 2010).

¶ 7 ANALYSIS

¶ 8 In general, we are limited to reviewing the question certified by the trial court.Barbara's Sales, Inc. v. Intel Corp.,227 Ill.2d 45, 57–58, 316 Ill.Dec. 522, 879 N.E.2d 910(2007).A certified question under Rule 308 necessarily presents a question of law, which we review de novo .Wilson v. Edward Hospital,2012 IL 112898, ¶ 8, 367 Ill.Dec. 243, 981 N.E.2d 971.In this case, the certified question requires that we construe section 2–1001(a)(2)(ii) of the Code (735 ILCS 5/2–1001(a)(2)(ii)(West 2014)) and its effect when considered in relation to the voluntary dismissal and refiling provisions of the Code set forth in sections 2–1009(a)and13–217(735 ILCS 5/2–1009(a), 13–217 (West 2014)).We also review issues of statutory construction de novo .Slepicka v. Illinois Department of Public Health,2014 IL 116927, ¶ 13, 386 Ill.Dec. 605, 21 N.E.3d 368.

¶ 9 Our primary objective in construing a statute is to ascertain and effectuate the intent of the legislature.Id.¶ 14.The most reliable means of achieving that goal is to apply the plain and ordinary meaning of the statutory language.In re Commitment of Fields,2014 IL 115542, ¶ 32, 381 Ill.Dec. 423, 10 N.E.3d 832.When construing statutory language, we viewthe statute as a whole, construing words and phrases in light of other relevant statutory provisions and not in isolation.In re Parentage of J.W.,2013 IL 114817, ¶ 37, 371 Ill.Dec. 510, 990 N.E.2d 698.In addition, a court may consider the reason for the law, the problems sought to be remedied, the purposes to be achieved, and the consequences of construing the statute one way or another.Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago,2012 IL 112566, ¶ 15, 357 Ill.Dec. 520, 963 N.E.2d 918.

¶ 10Section 2–1001(a)(2)(ii) provides, in relevant part, that a substitution of judge “in any civil action” may be had as follows:

“(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 has ruled on any substantial issue in the case, or if it is presented by consent of the parties.”735 ILCS 5/2–1001(a)(2)(ii)(West 2014).

Section 2–1009(a) of the Code permits a plaintiff to dismiss his or her action without prejudice at any time before trial or hearing begins.735 ILCS 5/2–1009(a)(West 2014).Section 13–217 allows a plaintiff to refile an action that has been voluntarily dismissed within one year from the date of the dismissal.735 ILCS 5/13–217(West 2014).

¶ 11 Bowman contends that the circuit court erred in denying her motion for substitution of judge in the 2013 action, and she advocates for a “bright line” rule allowing a substitution as of right, even where the motion is presented in a refiled action after the same judge had made substantive rulings in the previously dismissed suit.In support, Bowman cites to the language of section 2–1001(a)(2)(ii) and focuses, in particular, on the phrase “in the case.”According to Bowman, the plain meaning of this phrase necessarily refers only to the case that is currently pending before the court.Bowman claims that because Judge Overstreet had not made any substantive rulings in the refiled 2013 suit, he had no discretion to deny the motion for substitution of judge.

¶ 12 Ottney responds that section 2–1001(a)(2)(ii) must be construed to allow a court to consider the overall controversy between the parties.According to Ottney, this interpretation is the only way to give effect...