In an action arising from a dispute concerning the partition of a farm, the trial court erred in denying plaintiff’s motion for substitution of judge as a matter of right based on the court’s conclusion that even though no substantial rulings had been made, plaintiff had an “opportunity to test the waters, ” because the “test the waters” doctrine should not be applied to extinguish a party’s “absolute” right to a substitution of judge without cause pursuant to section 2-1001(a)(2) of the Code of Civil Procedure, and since the orders entered following the improper denial of plaintiff’s motion were void, the orders were vacated and the cause was remanded with directions to grant the motion.
Appeal from the Circuit Court of Pike County, No. 07-CH-2; the Hon. Diane M. Lagoski, Judge, presiding.
Howard L. Snowden (argued), of Snowden & Snowden, of Quincy, for Lyndle Schnepf.
William H. Strang (argued), of Strang & Parish, Ltd., of Jerseyville, for John Schnepf.
John D. Coonrod (argued), of Winchester, for Raymond Schnepf.
John B. Leonard and Rick Zimmerman (argued), both of Mt. Sterling, for Brenda Schnepf Johnson.
Panel PRESIDING JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Knecht and Harris concurred in the judgment and opinion.
STEIGMANN PRESIDING JUSTICE
¶ 1 These consolidated appeals arise from an action in partition involving a family farm owned in common by four siblings. In January 2007, plaintiffs Raymond Schnepf, John Schnepf, and their late mother, Maleta Maxine Schnepf (who died during the course of these proceedings), filed a complaint for partition of real estate, naming Lyndle Schnepf and Brenda Schnepf Johnson as defendants. In February 2008, before the trial court ruled on any substantial issue in the case, John filed a motion for substitution of judge as of right (735 ILCS 5/2-1001(a)(2) (West 2008)). In March 2008, the court denied John's motion on the basis the court had "previously indicated its position on issues going to the merits of [the] complaint." In May 2009, the court entered a ruling on the parties' interests in the property, finding that Raymond, John, and Brenda each owned a four-fifteenths interest in the property and that Lyndle owned a one-fifth (or three-fifteenths) interest. In November 2012, the court ordered the property sold pursuant to section 17-105 of the Code of Civil Procedure (Code) (735 ILCS 5/17-105 (West 2010)).
¶ 2 Lyndle appeals (this court's case No. 4-12-1142), arguing that the trial court erred by finding that he owns a one-fifth share of the property and John, Raymond, and Brenda each own a four-fifteenths share. John appeals separately (this court's case No. 4-12-1167), asserting that the court erred by denying his February 2008 motion for substitution of judge. John contends that the court's orders following its improper denial of his motion for substitution of judge are void. In May 2013, we granted John's motion to consolidate the appeals. Because we conclude that the court's orders entered following its improper denial of John's motion for substitution of judge are void, we remand for further proceedings.
¶ 3 I. BACKGROUND
¶ 4 The trial court proceedings in this case lasted almost six years. The court held at least 36 hearings. More than 200 docket entries span 16 pages of the record. The proceedings have been long and complicated. Moreover, this case was preceded by at least five years of prior litigation involving the same parties and property. Accordingly, in the interest of brevity, we review only the facts necessary to explain our decision.
¶ 5 A. Events Leading up to This Case
¶ 6 The real estate at issue (the property) is an approximately 320-acre family farm located in Pike County. Through a series of deeds in 1988, 1989, and 1993, Maleta deeded the property to her four children, Raymond, John, Lyndle, and Brenda, to hold as tenants in common. As a result of the 1989 and 1993 deeds, Raymond, John, and Brenda each held a four-fifteenths interest in the property and Lyndle held a one-fifth interest. With each deed executed between 1988 and 1993, Maleta attempted, but failed, to reserve a life estate for herself. Maleta finally secured her life estate as a result of this court's order in Schnepf v. Schnepf, No. 4-05-0817 (July 26, 2006) (unpublished order under Supreme Court Rule 23), a case involving the same parties and property. In that case, we found that the trial court erred by denying Maleta, Raymond, and John's request for reformation of the 1988 and 1989 deeds. Our order was limited to the issue of whether the deeds should have been reformed to provide Maleta with a life estate. We did not address whether the deeds should have been reformed to provide Raymond, John, Lyndle, and Brenda with equal, one-quarter interests in the property, as the parties had originally intended in 1988.
¶ 7 B. The Proceedings in This Case
¶ 8 In January 2007, Maleta, John, and Raymond filed a complaint for partition of the property, naming Lyndle and Brenda as defendants.
¶ 9 In February 2007, Lyndle filed (1) a motion for substitution of judge as of right (735 ILCS 5/2-1001(a)(2) (West 2006)) and (2) a motion to dismiss. The motion to dismiss alleged, in pertinent part, that Maleta was "seriously ill, mentally incompetent, and under the undue influence of Raymond Schnepf and John Schnepf and incapable of consenting to the sale of her life estate." The motion to dismiss did not cite the section of the Code under which it was brought.
¶ 10 Four days after Lyndle filed his motions, the trial court, Judge Michael Roseberry, granted Lyndle's motion for substitution of judge and referred the case to Chief Judge Thomas L. Brownfield for reassignment. Chief Judge Brownfield assigned the case to Judge Richard Greenlief.
¶ 11 Later in February 2007, Raymond filed a motion for substitution of judge as of right. In March 2007, Judge Greenlief granted Raymond's motion and referred the case back to Chief Judge Brownfield, who then reassigned the case to Judge Diane Lagoski.
¶ 12 In May 2007, the trial court scheduled a hearing on all pending motions for July 2007 and granted Brenda an extension of time to file motions.
¶ 13 In June 2007, Brenda filed the following motions: (1) "suggestion of disqualification of plaintiff's attorney of record from proceeding on behalf of any nominal plaintiffs" (suggestion of disqualification); (2) motion to dismiss the complaint for partition pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2006)); (3) motion to dismiss the complaint for partition pursuant to sections 2-619(a)(2) and (a)(9) of the Code (735 ILCS 5/2-619(a)(2), (a)(9) (West 2006)); and (4) alternative motion to strike paragraphs "D" and "E" of the prayer for relief as contained in the complaint for partition.
¶ 14 C. The July 2007 Hearing
¶ 15 In July 2007, Judge Lagoski presided over a hearing scheduled to address all pending motions, which included Lyndle's motion to dismiss and Brenda's four motions. At the hearing, the parties' attorneys and Judge Lagoski discussed (1) Brenda's suggestion of disqualification, (2) the effect of Maleta's life estate and Raymond and John's farming lease on the partition suit, and (3) the issue of Maleta's mental competence.
¶ 16 During a discussion of the life estate and farm lease, Lyndle's attorney informed Judge Lagoski that he had filed a separate suit on behalf of Lyndle seeking to set aside Raymond and John's farming lease (Pike County case No. 07-CH-18). In that suit, Lyndle alleged that Maleta was mentally incompetent and under undue influence from Raymond and John. Because Judge Lagoski determined that Maleta's mental competence was an issue common to both cases, she decided to adjourn ...