Smith v. Freeman

Docket No. 106010.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

MAXINE SMITH et al., Appellants, v. JANET FREEMAN et al.,
Appellees.

Opinion filed January 23, 2009.

JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.

OPINION

In this case, we must determine whether a successor judge may
render a decision and enter judgment based on transcripts of
testimony and documentary evidence offered at trial before a
predecessor judge. Here, the parties agreed by way of stipulation that
the successor judge could rule based on the written evidence, rather
than conduct a trial de novo. On appeal, the appellate court reversed,
holding that the parties’ stipulation was insufficient to satisfy due
process because resolution of the case rested on the credibility of the
witnesses. No. 4–07–0460 (unpublished order under Supreme Court
Rule 23).
 For the reasons that follow, we reverse the judgment of the
appellate court and remand to that court for further proceedings
consistent with this opinion.

Background
The underlying cause of action was brought by various heirs of
Goldie Carver, who died on May 23, 2001. Plaintiffs alleged that
defendants, Janet and Cheryl Freeman, had exercised undue influence
over Goldie and breached their fiduciary duties to her so as to benefit
from numerous transactions in the two months preceding Goldie’s
death. Plaintiffs sought to set aside two quit claim deeds, one which
deeded Goldie’s residence to Janet and the other which deeded her
70-acre farm to Janet and Cheryl. Plaintiffs also challenged various
monetary transactions that transpired from April 9, 2001, to the date
of Goldie’s death.
On January 19 and 20, 2006, a bench trial was held before Judge
Millard Everhart in the circuit court of Cumberland County.
Numerous witnesses testified. At the conclusion of the trial, the
parties agreed to submit written closing arguments.
Before rendering a decision, Judge Everhart realized that in 2004
he had spoken with an interested party about issues relevant to the
case. For this reason, Judge Everhart recused himself. The case was
then assigned to Judge Dean Andrews. The parties agreed that Judge
Andrews could rule on the matter based on the trial transcripts and
trial evidence heard by Judge Everhart. However, before he could
render a ruling, Judge Andrews retired.
The case was next assigned to Judge Dale Cini. Once again, the
parties sought to have Judge Cini rule on the matter based on the
transcripts and evidence from the earlier trial before Judge Everhart.
Judge Cini obtained written authorization from the parties to proceed
in this manner. On September 26, 2006, a “Consent to Resolution of
Claims” was filed with the court. In this document, the parties
consented to have Judge Cini resolve the matter after his
consideration of the January 2006 trial transcripts along with the
written closing arguments filed by the parties. The consent further
provided “[s]hould the Court require further proceedings or oral

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arguments, counsel for the parties would likewise submit
themselves.”
On November 6, 2006, Judge Cini entered judgment, finding for
plaintiffs on counts I (undue influence/breach of fiduciary duty in
connection with the farm) and III (undue influence/breach of fiduciary
duty in connection with monetary transactions in which Janet was
involved), and for defendants on count II (forgery of quit claim
deeds). Judge Cini ordered plaintiffs’ counsel to prepare a written
order detailing the specific transactions to be set aside and the
amounts to be repaid along with statutory interest.
On March 23, 2007, Judge Cini entered the order drafted by
plaintiffs’ attorney and approved by defendants’ attorney. On count
I, he found in favor of plaintiffs and ordered that both deeds be set
aside. On count II, he found in favor of defendants. On count III, he
found in favor of plaintiffs and set aside each monetary transaction
that involved Janet and ordered her to repay all amounts plus statutory
interest in the approximate amount of $175,000.
Defendants appealed, arguing that Judge Cini’s decision was not
supported by the facts and, therefore, his ruling should be reversed.
Prior to oral argument, however, the appellate court sua sponte
questioned whether Judge Cini had the authority to render a ruling
without having actually heard the witnesses’ testimony. The court
instructed the clerk of the court to advise the parties to be prepared to
address at oral argument the opinion of Anderson v. Kohler, 376 Ill.
App. 3d 714 (2007), as well as the cases cited therein. Thereafter,
citing In re Marriage of Sorenson, 127 Ill. App. 3d 967 (1984), the
appellate court concluded that, because resolution of crucial matters
rested on the credibility of witnesses, the parties’ stipulation to allow
Judge Cini to resolve the matter on the transcript and documentary
evidence was ineffective because the proceedings did not satisfy due
process. The appellate court reversed the trial court’s judgment and
remanded the matter for a new trial. We granted plaintiffs’ petition
for leave to appeal.

Analysis
The general rule is that a successor judge may not make findings
of fact or conclusions of law without a trial de novo. K. Kemper,

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Power of Successor or Substituted Judge, in Civil Case, to Render
Decision or Enter Judgment on Testimony Heard by Predecessor, 84
A.L.R.5th 399 (2000). The rationale underlying this rule is that due
process entitles a litigant to have all the evidence submitted to a
single judge who can see the witnesses testify and, thus weigh their
testimony and judge their credibility. Trzebiatowski v. Jerome, 24 Ill.
2d 24, 25-26 (1962); Mills v. Ehler, 407 Ill. 602 (1950); People ex
rel. Reiter v. Lupe, 405 Ill. 66, 71 (1950); Anderson, 376 Ill. App. 3d
at 720 (noting the above three supreme court 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” applies to
all cases, not simply marriage dissolution cases).
In the case at bar, the parties concede and the appellate court held
that the due process mandate is not absolute and that parties may
stipulate or agree to allow a successor judge to render a decision
based on written evidence presented to a predecessor judge. See
Reiter, 405 Ill. at 71; Anderson, 376 Ill. App. 3d 714; In re Marriage
of Sorenson, 127 Ill. App. 3d 967. However, relying on Sorenson,
defendants contend, as the appellate court held, that a stipulation is
insufficient when resolution of the case rests on the credibility of
witnesses.
In Sorenson, a petition for dissolution of marriage was at issue,
including child custody. Trial was held before Judge Maddox, who
recused herself before rendering a decision. In re Marriage of
Sorenson, 127 Ill. App. 3d at 968. The case was reassigned to Judge
Durr. On August 9, 1983, Judge Durr entered the following order:
“ ‘It is the court’s thought that this matter should be
disposed of promptly and without further and unduly
burdensome time consumption or financial injury to the
parties, and that those goals could best be achieved by entry
of a judgment based on a review of the Common Law Record
and the transcript of the testimony already presented, rather
than the requiring of further hearings.’ ” In re Marriage of
Sorenson, 127 Ill. App. 3d at 968.
The next day, Judge Durr entered another order that provided:
“ ‘[a]ny objections to the procedure set forth in the Order of Aug. 9,
1983 for resolving the issues herein shall be set forth and filed by
Sept. 7, 1983.’ ” In re Marriage of Sorenson, 127 Ill. App. 3d at 968.

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Both the pro se petitioner (wife) and the respondent (husband) agreed
to the court proceeding as proposed. Judge Durr granted custody of
the child to the husband. The wife appealed, arguing that Judge Durr
was without authority to enter judgment based solely on the record.
In re Marriage of Sorenson, 127 Ill. App. 3d at 968.
The appellate court noted that no Illinois case had yet addressed
the question of whether a successor judge could make findings of fact
based only upon transcribed testimony and whether litigants could
stipulate to such a procedure. In re Marriage of Sorenson, 127 Ill.
App. 3d at 969. The court then noted that, while other jurisdictions
were divided on the question of whether a successor judge could
make findings of fact on written evidence alone, it was generally held
that such a procedure is proper if the parties stipulate to it. In re
Marriage of Sorenson, 127 Ill. App. 3d at 969. The appellate court
agreed with the general rule. However, it placed a limitation on the
rule, holding that a trial de novo may be warranted “where critical
determinations necessarily hinge upon the credibility of one witness
or set of witnesses over another. (Moore Golf, Inc. v. Lakeover Golf
& Country Club, Inc. (1975), 49 A.D.2d 583, 370 N.Y.S.2d 156.)” In
re Marriage of Sorenson, 127 Ill. App. 3d at 969.
The Sorenson court concluded that in the case before it, a trial de
novo was necessary because the trial transcript was “replete with
contradictory testimony.” In re Marriage of Sorenson, 127 Ill. App.
3d at 969-70. In so concluding, the court found, that “[w]here the
testimony of the respective parties and their witnesses was
contradictory on matters crucial to a determination of comparative
parental fitness, we do not believe the interests of [the minor child]
were best served by credibility thus attributed on the basis of data
which was inherently incomplete.” In re Marriage of Sorenson, 127
Ill. App. 3d at 970. The Sorenson court went on to state, “If, by
reason of their stipulation, [the petitioner and the respondent] 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, [the minor
child], whose life is singularly affected by such a determination, was
so entitled.” In re Marriage of Sorenson, 127 Ill. App. 3d at 970.
Accordingly, the court held that the stipulation by the parties, “insofar

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as it relates to a finding of parental fitness,” was inoperative. In re
Marriage of Sorenson, 127 Ill. App. 3d at 970.
In In re Marriage of Fotsch, 139 Ill. App. 3d 83 (1985), another
district of the appellate court criticized Sorenson and declined to
follow it. In Fotsch, the original trial judge awarded custody of the
minor child to the husband, but stated it would determine in six
months whether joint custody was feasible. Fotsch, 139 Ill. App. 3d
at 85. Six months later, the wife petitioned the court for a change of
custody. Judge Ruffolo conducted a 14-day trial. Thereafter, she
recused herself and the case was reassigned to Judge Kaufman, who
began hearing the matter at the point Judge Ruffolo left off. Although
the parties, including the attorney for the minor child, stipulated that
Judge Kaufman could use the transcripts from trial proceedings
conducted by Judge Ruffolo, Judge Kaufman found he was prohibited
from doing so by Sorenson. Fotsch, 139 Ill. App. 3d at 85. The circuit
court then certified the following question for review:
“ ‘Whether the Court has authority, upon stipulation by
the parties, to adopt the transcript of testimony taken in the
same proceedings before a different judge, where the parties,
their present spouses and all expert witnesses, whose
testimony was transcribed will be called to testify again
before the Court as to other facts, but will not testify as to
matters about which they have previously testified nor will
such cross-examination be permitted, but other witnesses,
namely independent occurrence witnesses, will not be recalled
***?’ ” Fotsch, 139 Ill. App. 3d at 86.
The Fotsch court reviewed the facts of Sorenson and noted that
its holding was based “primarily on considerations of public policy,”
i.e., on the overriding concern for the best interests of the child.
Fotsch, 139 Ill. App. 3d at 86-87. The Fotsch court then found that
the factual scenario before it significantly differed from Sorenson.
First, the wife in Sorenson was not represented by counsel and,
therefore, this could call into question the voluntariness of her
stipulation. Second, the parties in Fotsch initiated the request to use
the transcripts, whereas it was the judge who did so in Sorenson.
Third, and most significantly, the child in Fotsch was represented by
counsel. Fourth, the decision rendered by the successor judge in
Sorenson was based solely on prior testimony, whereas in Fotsch the

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successor judge did observe the parties as well as other witnesses
testify. Fotsch, 139 Ill. App. 3d at 87.
The Fotsch court concluded that Sorenson was not controlling
because the facts of Sorenson were too dissimilar and the policy
considerations that controlled that decision were not present before
it. The Fotsch court further found that Sorenson conflicted with well-
established precedent of this state as well as other states which allows
parties to consent to allowing a successor judge to make findings
based on prior written evidence. Fotsch, 139 Ill. App. 3d at 87. The
Fotsch court noted that the parties can so agree even where credibility
issues are involved. Fotsch, 139 Ill. App. 3d at 88 (citing
Kirschenbaum v. City of Chicago, 43 Ill. App. 3d 529 (1976), and
Great Northern Ry. Co. v. Becher-Barrett-Lockerby Co., 200 Minn.
258, 274 N.W.522 (1937)). Sorenson did not cite either of these cases
but, instead, relied on Moore Golf, Inc., a memorandum decision
from the Appellate Division of New York, “a lower court of review,”
which was devoid of any legal reasoning or a single reference to
precedent. According to Fotsch, this decision was, therefore, “poor
authority with which to upset the long established practice of this
State.” Fotsch, 139 Ill. App. 3d at 88-89.
The Fotsch court also stated that, while Sorenson relied on the
public policy of protecting the best interests of children, “it did not
explain why that policy requires a trial de novo without regard to
whether the record supports the trial court’s resolution of the custody
issue.” Fotsch, 139 Ill. App. 3d at 89. The Fotsch court “fail[ed] to
see how children are best served by having their parents reduced to
penury by multiple trials.” Fotsch, 139 Ill. App. 3d at 89. Moreover,
since the circuit court retains jurisdiction during the child’s minority,
this serves as an added protection in child custody cases. “Hence,
there is no need to make custody cases the subject of an exception to
the general rule that successor judges may, upon stipulation,
adjudicate the case on the prior record.” Fotsch, 139 Ill. App. 3d at
89. Accordingly, Fotsch held that “we cannot conclude that
[Sorenson’s] holding rises to a general rule that transcripts may never
be considered in child custody cases, particularly in cases where, as
here, the children’s attorney consents to the use of the transcripts.
Such an inflexible rule would needlessly lengthen litigation and
burden a class of litigants which is generally little able to afford the

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cost of such proceedings.” Fotsch, 139 Ill. App. 3d at 89. The Fotsch
court thus answered the certified question in the affirmative.
As noted, there is no question parties can agree or stipulate that
a successor judge may make a determination of the issues based on
evidence heard by a predecessor judge. People ex rel. Reiter, 405 Ill.
at 71. The question is whether in cases in which credibility may be
crucial to a determination of the cause the parties are prohibited from
stipulating. Defendants maintain that Sorenson, as opposed to Fotsch,
is the better reasoned decision and its holding better protects due
process rights and the integrity of the judicial system. Defendants
urge us to adhere to Sorenson’s limitation on the parties’ ability to
stipulate.
Individuals may waive substantive rules of law, statutory rights
and even constitutional rights. In re Estate of Ferguson, 313 Ill. App.
3d 931, 937 (2000). This includes due process rights. See, e.g.,
People v. Stroud, 208 Ill. 2d 398 (2004) (right to be physically present
in courtroom for entry of a guilty plea); People v. Campbell, 208 Ill.
2d 203 (2003) (constitutional right to confront witnesses by
stipulating to admission of evidence); Suburban Downs, Inc. v.
Illinois Racing Board, 316 Ill. App. 3d 404 (2000) (waiver of due
process right to formal hearing before Racing Board). To be a valid
waiver of a constitutional right, it must be shown that there was “ ‘
“an intentional relinquishment or abandonment of a known right
***.” ’ [Citation.]” People v. McClanahan, 191 Ill. 2d 127, 137
(2000). The waiver “must be ‘ “knowing, intelligent acts done with
sufficient awareness of the relevant circumstances and likely
consequences.” ’ [Citations.]” McClanahan, 191 Ill. 2d at 137.
In the case sub judice, a litigant’s right to have the cause
determined by the judge who heard the evidence and observed the
witnesses is a due process right. People ex rel. Reiter, 405 Ill. at 71.
We find that, like other elements of due process, this right may be
waived. Based on the above principles, we believe that, if the parties
enter into an agreement or stipulation to allow a successor judge to
decide the case based on written evidence received by a predecessor
judge and that agreement is knowing, intentional, and voluntary, it is
valid and the parties are bound by it.
Defendants do not contend that they entered into the stipulation
under threat, coercion, or in any manner that would suggest it was

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involuntary or unknowing. Rather, as plaintiffs posit, defendants had
full knowledge of the issues Judge Andrews and later Judge Cini
were to resolve and freely granted them that authority. The parties
were faced with the prospect of retrying the entire matter and
recalling all witnesses, some of whom were elderly. Rather than
retrying the case, the parties, including defendants, knowingly and
intentionally chose how to proceed–allow the successor judge to
decide the matter, including resolution of factual questions and, thus,
the inevitable credibility issues underlying those factual questions,
based on the evidence presented to the predecessor judge. The
decision to proceed in this manner allowed the parties to avoid the
delay and expense of a new trial. Defendants were fully aware of the
relevant circumstances and consequences of agreeing to allow Judge
Cini to decide the case based on the trial transcripts and evidence.
Defendants have not demonstrated that their waiver of the due
process right to have the matter decided by the judge who heard the
evidence and saw the witnesses was invalid. Accordingly, defendants
were bound by their stipulation and waived their right to a trial de
novo before Judge Cini.
It is a common practice for a judge, and even a jury, to make
credibility determinations based on transcripts of testimony. This is
true in cases tried upon depositions, particularly in medical
malpractice cases, and where a retrial is conducted based on
testimony from a prior trial. Were we to adopt the appellate court’s
limitation, trial courts would no longer be able to proceed in this
manner. Instead, the parties would be required, whether they desired
it or not, to call all witnesses to the stand so that the trier of fact could
observe and hear them, thus wasting time and expense. Moreover,
such a ruling would go against this court’s tendency to favor
stipulations and simplification of trial proceedings through the
parties’ agreements. Similarly, holding as the appellate court did
would go against the well-established principle that parties may waive
due process rights. Such a limitation would not serve the judicial
process or the interest in promoting judicial efficiency and
administration. Accordingly, we hold that parties may waive the right
to a trial de novo before a successor judge even where a determination
of the cause hinges on issues of credibility.

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 Conclusion
For the reasons set forth above, we hold that the appellate court
erred when it held that the parties’ stipulation to allow Judge Cini
resolve the case based on the written evidence presented to Judge
Everhart was insufficient to satisfy due process, and thus we reverse
its judgment. Because the appellate court did not address defendants’
claims that Judge Cini’s rulings were against the manifest weight of
the evidence, we remand this matter to the appellate court for that
purpose.

Reversed and remanded.

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