Appeal from the Circuit Court of De Kalb County. No. 00-CH-16. Honorable Douglas R. Engel and Richard J. Larson, Judges, Presiding.
The opinion of the court was delivered by: Justice O'malley
Plaintiffs, Richard A. Anderson and Sandra P. 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 trial 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The background of this matter is set forth in our prior decision, Anderson v. Kohler, No. 2--02--1274 (2003) (unpublished order under Supreme Court Rule 23), and we recapitulate only what is necessary to explain our decision here.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 Engel 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, 127 Ill. App. 3d 967 (1984), from the Fifth District Appellate Court. In Sorenson, the petitioner filed petitions for dissolution of marriage and for temporary custody of the parties' daughter, Sarah. After a hearing on the petition for temporary custody, Judge Lola Maddox granted temporary custody of Sarah to the respondent. Judge Maddox then held a hearing on the dissolution petition, taking testimony on issues of permanent child custody and distribution of marital assets. Before Judge Maddox issued any findings on those issues, she recused herself from the case. The case was reassigned to Judge Wendell Durr, who proposed to the parties that he decide the issues of permanent child custody and distribution of marital assets based on the transcripts of the hearings before Judge Maddox. The parties agreed to the procedure, but only the respondent was represented by counsel. On the basis of the transcripts, Judge Durr granted the respondent permanent custody of Sarah. The petitioner appealed, arguing that the trial court "was without authority to enter judgment based solely on the record of the prior hearings." Sorenson, 127 Ill. App. 3d at 968.
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, 127 Ill. App. 3d at 969. The court found no Illinois case "delineat[ing] the power of a successor judge to make his or her own findings of fact based solely upon transcribed testimony and exhibits" or "defin[ing] the power of litigants to stipulate to such a procedure." Sorenson, 127 Ill. App. 3d at 969. The court then summed up the trend in other jurisdictions:
"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. 3d 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, 127 Ill. App. 3d at 970. Observing that the "overriding concern" in a child custody case is the best interests of the child, the court concluded:
"[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.*fn1 See Annotation, K. Kemper, Power of Successor or Substitute Judge, in Civil Case, to Render Decision or Enter Judgment on Testimony Heard by Predecessor, 84 A.L.R. 5th 399, 418 (2000) (collecting cases and concluding that "[a]s a general rule, due process considerations require that a party in a case tried without a jury is entitled to a decision by the judge who heard the evidence"). Any view that this rule is limited in Illinois to cases involving delicate issues like those in Sorenson, or may have diminished application based on the substance of the underlying controversy, is extinguished by the Illinois authorities that Sorenson, oddly, overlooked. The only case Sorenson cited was Brady v. Brady, 26 Ill. App. 3d 131 (1975), another marriage dissolution case where custody issues were paramount. Brady, however, cited Trzebiatowski v. Jerome, 24 Ill. 2d 24 (1962) (Trzebiatowski II), which followed Trzebiatowski v. Jerome, 19 Ill. 2d 30 (1960) (Trzebiatowski I).
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, 19 Ill. 2d at 35. The defendant explained that, though the plaintiff's complaint "sound[ed] in actual fraud and [was] based upon a fraudulent wilful misrepresentation," the trial court's decision was "replete with references to and findings of constructive fraud, overreaching, unconscionable fee, enrichment, and either no services or no useful services." Trzebiatowski I, 19 Ill. 2d at 35. The supreme court agreed that "the theory upon which the [trial court's] decree [was] based took form subsequent to the presentation of evidence." Trzebiatowski I, 19 Ill. 2d at 36. The court reversed and remanded, directing that the proofs be reopened to allow the defendant to present additional evidence relevant to the plaintiff's theory as it evolved at trial.
On remand, the chancellor who had heard the evidence in the original proceedings granted a change of venue, and the case was tried before "anew judgewho, 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 plaintiff's witnesses were not available on the second trial." Trzebiatowski II, 24 Ill. 2d at 25. After the defendant presented his case, the trial court found for the plaintiff. The defendant appealed, and the supreme court reversed in a brief opinion, holding that "[u]nder the circumstances reflected in the record it was error for the second chancellor to admit the transcript of the first proceeding into evidence and to consider it as a basis of decision." Trzebiatowski II, 24 Ill. 2d at 25. For the court, the issue was of constitutional dimension:
"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 ...