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No. 3-03-0852

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE LYTTON delivered the opinion of the court:

Carolyn Hetrick was appointed guardian of the estate of HelenJean Gay. After Gay died, Robert Hansen, an interested party, brought an action to determinethe distribution of the estate. Hetrick moved for a substitutionof judge as a matter of right, which the trial court denied. Hetrick appeals, and we affirm.

In 1995, the trial court appointed Hetrick to serve as HelenGay's guardian. Gay eventually moved into Hetrick's home, andHetrick provided for Gay's daily needs. In January of 2000, abeneficiary of the estate brought an action in probate courtalleging Hetrick's improper use of Gay's assets. Judge William R.Banich ordered Hetrick to file an account and report by March 2,2000.

Gay died on February 5, 2000. On February 17, 2000, the trialjudge entered an order that the guardianship should remain openpending the opening of the decedent's estate. On March 31, 2000,the judge requested a final account and report from Hetrick, who did not comply.

On May 30, 2000, Judge Banich continued the case to allowHetrick time to file a final account and report. On June 27, thematter was again continued for a final account and report. On July24, 2000, the trial judge continued the status of the case andordered Hetrick to appear at the next scheduled hearing date ofAugust 30, 2000. On August 30, Hetrick did not appear, and JudgeBanich entered a rule to show cause why she should not bedischarged for failure to file a final account and report.

On September 13, the trial judge held a status conference. Hetrick appeared personally and provided the court with a narrativeof her care of Gay and certain financial summaries. The judge thencontinued the matter for a hearing on the rule to show cause onOctober 25, 2000. No court reporter was present. On October 25,the trial judge continued the cause for further status on November27, and instructed Hetrick to file a final account and report "inthe form required by statute" on or before that date.

Hetrick did not file a final report by November 27. Inresponse, Judge Banich entered another order continuing the casefor a pretrial conference on December 15, 2000. The order stated,"Final Account and Report in 95-P-102 is to be filed within 7days." At the pretrial conference on December 15, Hetrickpresented a motion for substitution of judge. Judge Banichscheduled the hearing date for January 31, 2001. No court reporterwas present at the December 15 conference.

At the hearing on the motion, counsel for Hetrick noted thatthe judge had shown some impatience with the progress of the case,but had yet to enter a substantive order. Therefore, he claimedthat Hetrick was entitled to a substitution. Counsel for Hansen argued that the judge had "tipped his hand" at pretrialconferences. He claimed that during those meetings, the judgenoted that the estate's yearly expense to Carol's Country Care (anentity owned and operated by Hetrick) was unusually large and wouldneed to be substantially supported by proofs to rise to the levelof a relevant expense. Judge Banich agreed and recalled that hehad discussed a number of issues concerning the case in chambers. The judge stated, "I clearly indicated, you know, my position andmy feelings concerning what the guardian was going to have to do ifanybody came in and filed [an objection]." Based on thosediscussions, the judge denied the motion.

Hetrick argues that the trial court erred in denying hermotion for substitution of judge as a matter of right. She claimsthat Judge Banich made no substantive rulings that would precludea substitution of judge as of right. Hansen claims thatthe motion was untimely because Judge Banich indicated a positionon issues presented at the pretrial conferences.

A party is entitled to one substitution of judge without causeas a matter of right. 735 ILCS 5/2-1001(a)(2)(i) (West 2000). Thetrial judge must grant such a motion if the motion is presentedbefore a trial or hearing begins and before the judge has ruled onany substantial issue in the case. 735 ILCS 5/2-1001(a)(2)(ii)(West 2000). A substantial ruling is one that directly relates tothe merits of the case. City of Granite City v. House of Prayers,Inc., 333 Ill. App. 3d 452, 775 N.E.2d 643 (2002).

Even in the absence of any substantive ruling, a motion forsubstitution of judge may be denied if the movant had an opportunityto "test the waters" and form an opinion as to the judge's reactionto her claim. In re Marriage of Petersen, 319 Ill. App. 3d 325, 744N.E.2d 877 (2001). A petition for substitution of judge must bebrought at the earliest practical moment to prohibit a litigant fromseeking a substitution only after she is able to discern the judge'sposition. Estate of Roselli, 70 Ill. App. 3d 116, 388 N.E.2d 87(1979). Courts disfavor allowing a party to "shop" for a new judgeafter determining the original judge's disposition toward the case. In re Marriage of Abma, 308 Ill. App. 3d 605, 720 N.E.2d 645 (1999);Becker v. R.E. Cooper Corp., 193 Ill. App. 3d 459, 550 N.E.2d 236(1990). Consequently, a request for judge substitution may beuntimely if it is made after pretrial conferences at whichsubstantive issues were discussed but not decided. Abma, 308 Ill.App. 3d 605, 720 N.E.2d 645. We review the denial of a motion forsubstitution of judge as of right de novo. Nasrallah v. Davilla,326 Ill. App. 3d 1036, 762 N.E.2d 25 (2001).

Here, Hetrick and her attorney had participated in severalpretrial conferences and status hearings which were notmemorialized. Based on his own recollection, Judge Banichdetermined that the motion was untimely because the parties had anopportunity to assess his feelings and views on some of the issuesduring those proceedings. Hetrick argues that we cannot rely on thetrial judge's own recollections in determining whether the denialof the motion was correct.

In Paschen Contractors, Inc. v. Illinois State Toll HighwayAuthority, 225 Ill. App. 3d 930, 590 N.E.2d 539 (1992), the courtheld that the trial judge properly denied a motion for change ofjudge as of right which was made after the parties had participatedin several pretrial conferences. The pretrial conferences were notmemorialized, and the trial court relied on his recollection indetermining whether he had made substantial rulings. The appellanthad argued that the court could not rely on the trial judge'smemory, citing Hartgraves v. Don Cartage Co., 63 Ill. 2d 425, 348N.E.2d 457 (1976). However, the Paschen court distinguishedHartgraves, noting that it was limited to situations where thejudge's recollection contradicted or impeached the clear contentsof the record. If, on the other hand, the trial judge'srecollections regarding the substance of pretrial conferences do notcontradict or impeach the record, it is permissible for the judgeto rely on those recollections. Paschen Contractors, Inc., 225 Ill.App. 3d at 934, 590 N.E.2d at 542. See also Rodisch v. Commacho-Esparza, 309 Ill. App. 3d 346, 350, 722 N.E.2d 326, 329 (1999)(following Paschen); Abma, 308 Ill. App. 3d at 612-13, 720 N.E.2dat 651-52 (same).

Here, Judge Banich considered the motion and ruled that it wasuntimely. In so doing, he relied on his recollection of off-the-record pretrial conferences that he had indicated his position andfeelings concerning the burden Hetrick needed to overcome if anobjection was filed. Nothing in the record, either before or afterthe substitution motion was made, contradicts that recollection. Therefore, it was permissible for the judge to rely on his ownmemory regarding the substance of the pretrial proceedings.

During pretrial conferences it is common for a judge to expressan opinion or make a recommendation to the parties on an issue. Therecord indicates that this case had been before Judge Banich forseveral months. He had discussed the merits of the action duringpretrial conferences and had suggested that the burden of proofwould be significant. Hetrick does not claim that she did notparticipate in the conferences. Considering all the circumstancessurrounding the pretrial proceedings, the motion for substitutionof judge was untimely because it was made after Hetrick had anopportunity to form an opinion as to the judge's reaction. Thetrial judge's suggestions and comments during the pretrialconferences gave her a unique ability to determine the court'sattitude concerning certain issues. Accordingly, Judge Banichproperly denied Hetrick's motion for substitution.

The judgment of the circuit court of La Salle County isaffirmed.

Affirmed.

SCHMIDT, J., concurring and MCDADE, J., specially concurring.