author: JUSTICE BARRY

text:
    AMOS A. VOYLES et al., Co-Adm’rs of the Estate of Iva Mae Sutton, Deceased, Plaintiffs-Appellants, v. GERALD E. SANFORD et al., Defendants-Appellees.
    Third District
    No. 3—88—0636
    Opinion filed May 24, 1989.
    Rehearing denied June 27, 1989.
    Komessar & Wintroub, of Chicago (Mark S. Komessar, of counsel), for appellants.

      Schaffenegger, Watson & Peterson, Ltd., of Chicago (Jack L. Watson, of counsel), for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiffs brought this wrongful death suit on behalf of the estate of Iva Mae Sutton, who died as a result of injuries suffered on the evening of July 4, 1986, when the automobile in which she was a passenger collided with a tractor-trailer rig operated by defendant Gerald Sanford, for his employer, defendant Interstate Brands Corporation. The matter was tried to a jury, which returned a verdict in favor of the defendants. In this appeal, plaintiffs challenge several evidentiary rulings of the trial court and the court’s refusal to give one of plaintiffs’ tendered jury instructions. We find that the court erred and that this cause must be remanded for a new trial.

The facts underlying the lawsuit as perceived by the drivers of three vehicles on the night in question follow. Around 10 p.m. of July 4, 1986, Sondra Sutton, then 16 years old, was driving westbound on Corning Road en route from a party in Beecher, Illinois, to the home of her grandmother, Iva Mae Sutton. The night was clear and dry. Sondra was well acquainted with the road, although she had been a licensed driver for only a few months at that time. Sondra knew that she had to stop at the intersection of Corning Road and Route 1 and turn south to get to her grandmother’s home. A stop sign at the intersection of Coming Road and Route 1 was missing that night. Sondra failed to slow down as she approached the intersection and crashed into the side of a tractor-trailer rig. Iva Mae Sutton sustained extensive injuries and died on August 2,1986.

On the date and time in question, Gerald Sanford was heading south on Route 1 en route from Chicago to Columbus, Indiana. He and his codriver, David Duncan, were returning home from delivering bakery goods in the Chicago area. As the track left Beecher, an automobile ahead of Sanford appeared to brake and then speed up in an erratic manner. Sanford adjusted his speed to maintain a good 200-foot distance between that driver and himself. Route 1 has two small hills, or dips, the second of which crests about a quarter of a mile north of the intersection with Coming Road. About 150 feet from the intersection, Sanford observed the Sutton vehicle heading for the intersection and realized that the car was traveling too fast to make a stop. According to Sanford, he first attempted to stop by activating the trailer brakes. This slowed him from around 45 to 38 miles per hour. Next, Sanford tried to shift down two gears by accelerating the engine to match his road speed to RPMs. He yelled to Duncan that they were going to get hit. The gear shift knob broke off in Sanford’s hand. Then the Sutton vehicle slammed into the left drive wheel of the tractor, shoving the truck sideways, slid under the trailer and flipped it over.

Steven Balasz, a 27-year-old semi driver, was returning to his home in Momence, Illinois, with his wife after having watched the July 4 fireworks display in Beecher. Balasz proceeded south on Route 1 in his 1978 Chevy Blazer with the roof off and the windows down. About 200 feet ahead was the semi operated by Sanford. Balasz was driving about 50 to 55 miles per hour and was gaining on the semi. When Balasz reached the top of a hill about a half mile north of Coming Road, he observed to his left the Sutton vehicle heading west toward the intersection. He saw the Sutton vehicle, a large Pontiac, slow for a bridge and then bounce up. He heard the roar of the motor as it accelerated and sped toward the intersection at an estimated speed of 70 or 80 miles per hour. Balasz braked and skidded to a stop at the side of the road just north of the intersection. Balasz and his wife watched the collision between the Pontiac and the semi. They immediately drove a short distance east on Coming Road to the radio station to report the accident and then returned to check on the occupants of the two vehicles and to provide information to police officers who appeared on the scene.

Liability issues presented by the foregoing facts concerned primarily whether Sanford kept an adequate lookout in approaching the intersection and whether the evasive measures he took were reasonable to avoid a collision.

On August 15, 1988, immediately prior to the trial of this cause, defendants moved to bar the testimony of plaintiffs’ expert witness, Robert Farrell, pursuant to Supreme Court Rule 220(b)(1) (107 Ill. 2d R. 220(b)(1)). Farrell’s identity had been disclosed to defendants on July 27 or 28, 1988, less than 20 days before the trial was to begin. Because of the untimeliness of the disclosure, the court allowed defendants’ motion in limine barring Farrell’s testimony. In this appeal, plaintiffs initially contend that the court’s ruling was error. We need not discuss this issue, however, because our review of the record discloses other error requiring remand for a new trial, and we do not anticipate that the expert witness disqualification issue will reoccur on retrial.

Next, plaintiffs contend that the trial court erred in striking portions of the testimony of David Duncan. At the time of trial, Duncan lived out of the State and was no longer employed by defendant Interstate Brands. Plaintiffs sought to introduce Duncan’s testimony as given at his evidence deposition. Duncan was an experienced semitruck driver. In his initial discovery deposition, Duncan stated that it would have been improper to attempt to stop the tractor-trailer rig by activating only the trailer brakes. Duncan went on to explain that the trailer braking system was to be used only under adverse conditions, such as wet or frozen pavement to prevent jackknifing. Otherwise, the foot pedal brakes, which control both the tractor and the trailer braking systems, are to be used to stop the rig. Subsequently, Duncan testified in his evidence deposition that in addition to adverse weather conditions, the trailer brakes alone should be applied in situations of “quick stops.”

On the eve of trial, defendants sought to strike substantial portions of Duncan’s testimony on grounds that plaintiffs sought to introduce Duncan as an expert witness and he had not been disclosed as such pursuant to Supreme Court Rule 220(b)(1). At the hearing on the motion, defense counsel argued that plaintiffs were attempting to get Duncan’s testimony as an expert before the jury in the guise of impeachment. The court adopted defense counsel’s reasoning and struck all testimony relating to Duncan’s opinion as to the proper operation of the semi’s braking systems.

We find this evidentiary ruling erroneous. As plaintiffs are quick to point out, the court’s ruling cut the heart out of their case. The question of whether Duncan had to be disclosed as an expert witness prior to trial pursuant to Rule 220 was recently decided in Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 531 N.E.2d 51, appeal denied (1989), 124 Ill. 2d 562, 535 N.E.2d 921. The Smith court, in determining whether an expert who is an employee of a party must be disclosed under Rule 220, relied on our supreme court’s opinion in Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525, which declared that a treating physician is not an expert witness for purposes of Rule 220. Consistent with Tzystuck, the Smith court reasoned that the fact that an employee of a party — who is also an occurrence witness and intimately involved in the subject of the litigation — testifies poses no surprise to the movant. The only surprise is that he gives an expert opinion. (176 Ill. App. 3d at 494-95, 531 N.E.2d at 59.) Since the witness’ identity is discoverable early in the litigation process under general rules of discovery (Supreme Court Rule 201 (107 Ill. 2d R. 201)), an employee “who is intimately involved in the subject matter of the litigation need not be disclosed as an expert witness pursuant to Rule 220(b)(1).” 176 Ill. App. 3d at 495.

Although Duncan in this case was not employed by defendant Interstate Brands at the time of trial, the Smith court’s rationale applies with equal force here. Duncan was an employee of defendant Interstate Brands at the time of the accident; he was “intimately involved” in the matter being litigated; he was not retained as an expert for the purpose of litigation; he was known as an experienced driver long before trial; and he was equally available to all parties for purposes of discovering his testimony. The record discloses that Duncan’s experience as a semi driver was sufficiently established as a foundation for rendering an opinion concerning the proper use of the tractor-trailer rig’s braking system. Accordingly, plaintiffs were not required to provide defendants with further disclosure pursuant to Rule 220, or to claim that Duncan’s evidence deposition testimony impeached his discovery deposition testimony, in order to introduce his opinion at trial.

Whether the admission of such evidence would affect the outcome of this case is a matter about which we need not speculate. We hold only that plaintiffs were improperly denied the opportunity to introduce Duncan’s opinion testimony and that, as a consequence, this cause must be remanded for a new trial.

We have reviewed plaintiffs’ remaining issues and find them without merit. We address them briefly, however, because they may arise again upon retrial.

Under the circumstances of this accident the trial court properly refused plaintiffs’ tendered Illinois Pattern Jury Instructions, Civil, No. 70.02 (2d ed. 1971) (IPI Civil 2d) for open, unmarked intersections. Defendants’ vehicle was on a preferential highway and was on the right as the two vehicles approached the intersection. Plaintiffs’ proffered instruction on the general statute governing right-of-way in Illinois could only have served to confuse the jury. Finally, we believe that the court did not err in admitting daytime photographs of the scene of the accident, given that a proper foundation was laid for their introduction. Counsel’s interrogation of the various witnesses who identified the pictures stressed to the jury that they were daytime photographs of the scene of a nighttime accident. Any prejudice resulting from lighting differences between the scene at the time of the accident and the photographs was amply overcome by the probative value of the pictures for purposes of demonstrating the topography of the area near the intersection in question.

For the reason stated, the judgment of the circuit court is reversed and this cause is remanded for a new trial.

Reversed; cause remanded.

SCOTT and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER JUSTICE HEIPLE,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE WHITE, JR., Defendant-Appellant.
    Third District
    No. 3—88—0562
    Opinion filed May 24, 1989.
    HEIPLE, J., dissenting.
    Shari D. Goggin-Ward, of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, George White, Jr., pled guilty to burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1(a)) and was sentenced to a three-year term of probation. The State subsequently filed a petition to revoke the defendant’s probation, alleging that he had violated the terms of his probation by committing an aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(1)). The trial court found the defendant guilty of violating his probation and sentenced him to four years in prison. The defendant appeals.

At the hearing on the petition to revoke the defendant’s probation, LaRue Jackson testified to the following. On March 20, 1988, he, the defendant, and two other people were in a parked car. A fight broke out between the defendant and Jackson. The defendant then pulled out a knife and cut Jackson’s right wrist. The defendant exited the car and started toward Vickie Micheál, who had exited the car on the opposite side. Micheál picked up a bottle and threw it at the defendant. The defendant picked up the same bottle and threw it back at the car, where it broke. The defendant then ran across the street and into an Elks Club.

Micheál testified that after the fight, the defendant exited the car and threw a soda bottle at her. In response, she threw a bottle at him. She then heard Jackson yell that he was cut. Micheál stated that Jackson never fell while he was outside the car. She admitted, however, that she could not see him when the bottles were being thrown. Though she saw the defendant make a jabbing motion at her, she never saw a knife. Micheál testified that the car’s dome light was not working.

Debbie Davis, the remaining person in the car, testified that during the fight she was pinned against the steering wheel. At one point, she heard a click and blood splashed on her shirt. She then saw the defendant holding a knife. After she, the defendant, and Micheál exited the car, she saw the defendant and Micheál throwing bottles at one another and saw a bottle break. She stated that she could see by the glow from the car’s dome light that Jackson’s arm was already hurt when he exited the car.

Laura Beers testified for the defense that at the time of the incident she was parked five or six cars behind the car in question. She saw the fight and saw the defendant exit the car. Jackson then got out of the car, and he and the defendant began throwing bottles at one another. She heard at least one bottle break, but could not tell where it was. At one point, she saw Jackson fall. She never saw a knife in the defendant’s possession.

The defendant testified that after he exited the car Jackson got out. Jackson threw three bottles at him, and he threw two bottles at Jackson. He saw Jackson try to dodge the bottles and saw him fall where the bottles had broken. The defendant denied having a knife or stabbing Jackson.

Following closing arguments, the trial judge examined the cut on Jackson’s arm. The judge discussed the discrepancies between the witnesses’ testimonies, then turned to the physical evidence. He noted that the wound had been caused by either a knife or a piece of broken bottle and stated:

“Now the Court can take into account its own observations and experiences of life. Most broken bottles [are] round — if there is a flat part it’s on the bottom and normally when a bottle breaks it doesn’t break in a perfectly straight line.
Glass tends to break in a jagged fashion. The Court notes the position of the wound. The wound is not on the palms. It’s not on the heel of the palms. It’s down two and a half to three inches down the wrist. One would think that if a man fell the likely thing to do would be to put your palms out and break the fall. That’s not where the cut is. The cut is at a place further down the wrist.
The nature of the cut — it’s a straight cut. I described it earlier as about an inch and a half to about an inch to three quarters in length, not the type that one would think would be made with a round bottle. It doesn’t add up. If it was made by a piece on the bottom I might expect a straighter cut but I would expect it to be more jagged. This is a fairly straight cut.”

The court next considered the testimony regarding the location of Jackson’s blood in the car and its opinion of the credibility of the witnesses. It thereafter held that the State had proved the charge by a preponderance of the evidence.

On appeal, the defendant argues that he was denied due process of law when the trial judge based his decision in part on the differences between glass and knife cuts, since this information was not in evidence. The State contends that the defendant waived this issue by failing to object at trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) We find that plain error is involved in this case and address the issue pursuant to Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)).

The State further contends that the judge was doing nothing more than considering the evidence in light of common knowledge and the ordinary observations of life. (Illinois Pattern Jury Instructions, Criminal, No. 1.01(10) (2d ed. 1981); People v. Schaffner (1943), 382 Ill. 266, 46 N.E.2d 989.) The defendant replies that a determination made by a judge based upon a private investigation or private knowledge, untested by cross-examination or any of the rules of evidence, constitutes a denial of due process of law. (People v. McBride (1987), 157 Ill. App. 3d 955, 510 N.E.2d 1087.) He argues that the conclusions reached by the judge required an expert’s knowledge of glass and knife cuts and were not within the knowledge of the ordinary layman.

We agree with the defendant. The ability to examine a cut and determine the instrument that made it is beyond the province of common knowledge. The parties could only have introduced this evidence through a qualified expert. Accordingly, the trial judge erred in considering facts not in evidence in entering his judgment. Further, we find that the judge spent a significant part of his analysis of the evidence on the distinction between glass and knife cuts. Given that fact and the overall weight of the evidence, we cannot find that the error was harmless and must therefore reverse the trial court’s decision. We note that we find no merit in the State’s argument that the defendant invited this error.

The judgment of the circuit court of Rock Island County is reversed, and the cause is remanded for a new hearing.

Reversed and remanded.

SCOTT, J., concurs

JUSTICE HEIPLE,

dissenting:

In reversing the trial court’s determination that the defendant violated his probation, the majority has ignored the direct evidence presented. Moreover, it has, in effect, retried the case on the basis of the typed record. Thereby, it has wrested from the trial court its duty and power to resolve conflicts in the evidence presented. Accordingly, I dissent.

Initially, it is important to note that the burden of proof in a probation revocation proceeding is different than in a criminal trial. The State in a revocation proceeding need only prove that the defendant violated the terms of his probation by a preponderance of the evidence. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—4.) The trial court, sitting as the trier of fact, is entitled to weigh the evidence and assess the witnesses’ credibility, and its determination will not be set aside unless it is manifestly erroneous. (People v. Martin (1979), 76 Ill. App. 3d 765.) The evidence presented at the hearing below was more than sufficient to support the court’s revocation of the defendant’s probation.

The victim testified that while he and the defendant struggled in the backseat of the car, he heard a click he assumed was a knife, and the defendant cut his wrist. He stated that blood stains remained in the back of the car by the door and on the floor, and that when his sister drove him to the hospital, his blood also dripped on the front floor of the car. The victim’s sister, Vickie, testified that she heard her brother yell that he had been cut after he struggled with the defendant, and she stated that the defendant usually carried a knife. The victim's other sister, Debbie, confirmed the victim’s testimony that while he and the defendant struggled, a clicking noise could be heard, and blood splashed on her. She further testified that she saw the defendant with a knife. The defendant and a defense witness testified that the victim fell in an area containing broken glass after he exited the car, but the remaining witnesses denied that the victim fell to the ground.

In finding that the State proved its charge by the preponderance of the evidence, the trial judge noted the contradictions in the testimony and he pointed out that he found it strange that in over 14 years on the bench, this defendant was the first who did not once look at him during his testimony. The judge then considered the nature and location of the victim’s wound and unrefuted testimony that there was blood in the backseat area of the car, which could not be explained if the victim was cut when he fell after getting out of the car. Finally, the court stated it found the testimony of the victim and Vickie more believable than the defendant’s testimony in light of the physical evidence and in light of the manner of the defendant while on the witness stand.

The trial court did not err when it commented on the nature of the victim’s wound and noted that because it was a fairly straight cut, it did not appear to be the type of wound which would result from contact with a jagged piece of glass from a broken bottle. In making these comments, the court was doing nothing more than considering the evidence in view of common knowledge and the ordinary experiences and observations of life. It is well established that triers of fact are accorded the right to consider evidence in light of their intelligence, common knowledge, and the experience of mankind. (People v. Schaffner (1943), 382 Ill. 266.) Accordingly, the trial court’s comments in this case were proper.

Even if the trial court erred in considering whether the victim’s wound could have been inflicted by a piece of glass, any error was harmless. Contrary to the majority’s statement, the court did not spend a significant part of its analysis on the distinction between glass and knife cuts. Rather, the comments on the type of cut were brief and were intertwined with the court’s observations regarding the location of the wound, 2xk to 3 inches up from the wrist and not on the palm, which suggested it was not sustained during a fall to the ground. Furthermore, the court’s comments demonstrate a thorough analysis of the remaining evidence, including the defendant’s inability to explain the blood in the backseat, and a thoughtful determination of the credibility of the witnesses. Considering the court’s assessment of the witnesses’ credibility and the weight of the evidence presented, it cannot be said that the trial court’s determination was manifestly erroneous.

For the foregoing reasons, I would affirm the judgment of the trial court.


author: JUSTICE DUNN

text:
      In re MARRIAGE OF ANN E. MERRICK, Petitioner-Appellee, and JEFFREY C. MERRICK, Respondent-Appellant.
    Second District
    No. 2—88—0782
    Opinion filed June 1, 1989.

      Kevin M. Myles, of Lake Forest, for appellant.
    No brief filed for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

This is an appeal from a post-judgment order following a judgment of dissolution between petitioner Ann Merrick and respondent Jeffrey Merrick. Respondent appeals from an order requiring him to produce his income statements, including pay stubs, and W-2 and 1099 forms. Petitioner has not filed an appellate brief. We choose to review this appeal under the guidelines of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

Initially, we note that respondent has failed to include a jurisdiction statement in his brief in violation of Supreme Court Rule 341(e)(4)(ii) (122 Ill. 2d R. 341(e)(4)(ii)). Moreover, respondent has failed to address the issue of this court’s jurisdiction in any part of his brief. If neither party has questioned this court’s jurisdiction, we have an obligation to raise it sua sponte and to dismiss the appeal if jurisdiction is lacking (Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539). Upon our own review, we conclude that we are without jurisdiction to decide the issue raised by respondent because respondent has not appealed from a final order.

Petitioner’s post-judgment petition made the following requests for relief: (1) that petitioner be held in contempt for failure to pay respondent 35% of his 1987 net bonus as required by the judgment of dissolution; (2) that respondent order petitioner to produce his 1987 tax return so petitioner may determine whether a legitimate basis exists for an increase in support or maintenance; (3) that a rule to show cause be issued against respondent for his failure to provide petitioner with proof that he appointed petitioner as trustee and the minor children as beneficiaries of his life insurance; (4) that respondent be ordered to pay attorney fees for failure to comply with judgment of dissolution; (5) that respondent pay petitioner 50% of bonus received in 1986, rather than 35%, since 1986 was a tax year in which the couple was married; (6) that respondent pay petitioner interest for every day that he fails to pay petitioner her share of his bonus; (7) that bonus calculations be based on the gross figure minus any income tax obligations, but with no deduction for FICA. In a motion following this petition, petitioner also moved for production of respondent’s 1988 wage stubs and any other information indicating 1988 earned income.

In an order filed July 12, 1988, the trial court ordered respondent to tender proof that he appointed petitioner as trustee and the minor children as beneficiaries of his life insurance, and ordered respondent to produce his 1987 income tax returns and proof of income for 1988. The court reserved two issues for later determination: (1) attorney fees to petitioner for bringing the motion; (2) interest on the remainder of the bonus check to be tendered to petitioner in open court on July 8, 1988. The court denied all other relief. On August 11, 1988, respondent filed a notice of appeal from the July 12,1988, order.

We find we are without jurisdiction to address the merits of this appeal because the order appealed from did not adjudicate all of the claims brought by petitioner. As noted above, the trial court specifically reserved two issues for later determination. These issues concerned two claims for relief, a claim for interest on an amount of respondent’s bonus due petitioner which had not been timely paid and a claim for attorney fees for respondent’s failure to abide by the judgment of dissolution. Under Supreme Court Rule 304(a), where multiple claims for relief are involved in an action, an appeal from a final judgment as to less than all the claims may only be taken if the trial court has made an express written finding that there is “no just reason for delaying enforcement or appeal.” (107 Ill. 2d R. 304(a).) This finding was not made here. Where an order resolves less than all the claims brought by a party and does not contain the Rule 304(a) language, the order is not final and appealable. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 442; Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 177; In re Marriage of Piccione (1987), 158 Ill. App. 3d 955, 964.) Petitioner notes in his appellate brief that the two reserved issues were recently resolved in a later proceeding. There is, however, no record of these proceedings and nothing to indicate that there was a judgment on these issues before the notice of appeal was filed. We must conclude that the notice of appeal was filed before this later judgment adjudicated the remaining claims of petitioner. Therefore, the notice of appeal was premature to vest this court with jurisdiction. In re Marriage of Piccione, 158 Ill. App. 3d at 963.

We realize that in this case the order appealed from is a post-judgment order and that the supreme court found in two recent cases that a post-judgment order was appealable in spite of the trial court’s express reservation of an issue for future determination. (In re Custody of Purdy (1986), 112 Ill. 2d 1; In re Marriage of Cannon (1986), 112 Ill. 2d 552.) These cases, however, are distinguishable from this case. In Purdy, first of all, the trial court included the Rule 304(a) language that there was no just reason to delay enforcement or appeal. Secondly, in Purdy, the court found that the post-judgment petition involved a claim for a change in custody, which the trial court decided. The only issue reserved was a question of summer visitation rights, which would not affect the custody decision. (Purdy, 112 Ill. 2d at 5-6.) The court determined that the issue reserved by the trial court was merely incidental to the ultimate rights adjudicated, and thus the decree was final and appealable. (Purdy, 112 Ill. 2d at 5.) The same is true in the case of In re Marriage of Cannon. In that case, the court found that where the trial court resolved all the issues of dissolution, but made the disposition reviewable in two years, the judgment was final and appealable because the matters left for future determination were merely incidental to the ultimate rights which had been adjudicated. Cannon, 112 Ill. 2d at 556.

In this case, the matters reserved by the trial court were not incidental to the ultimate rights which had been adjudicated. Petitioner specifically requested that she be paid interest on her share of respondent’s bonus not yet received, and petitioner specifically requested attorney fees for respondent’s failure to comply with the judgment of dissolution. These were not matters that were incidental to a more fundamental or substantial claim made by petitioner; rather, these were two of seven specific claims for relief intended to remedy what petitioner claimed was respondent’s failures in abiding by the judgment of dissolution.

In In re Marriage of Piccione (1987), 158 Ill. App. 3d 955, 964, this court found that a post-judgment order from a judgment of dissolution which determined an issue of child support, but reserved the issue of attorney fees and failed to include the statutory language of Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), was not final and appealable. We noted in Piccione that a disposition of attorney fees should be decided before a reviewing court makes a determination of the trial court’s decision regarding child support because the issue of attorney fees is integrally related to decisions regarding the financial resources of the parties. (Piccione, 158 Ill. App. 3d at 963.) In the case at bar we need not be concerned with whether the two issues reserved by the trial court are integrally related to the issue raised on appeal. The issue raised by respondent, whether he must produce income reports for 1987 and 1988, is not related to the issue of interest and attorney fees owed petitioner. This distinction from Piccione, however, is not relevant to this case. In Piccione, the order appealed from adjudicated the main claim brought by petitioner, a claim for an increase in child support, but reserved the petitioner’s request for attorney fees. Since the main claim had been adjudicated, it was necessary to determine whether the issue of attorney fees was merely incidental to this claim. We found that it was not because of the integral relationship involving the financial resources of the parties between an award of attorney fees and an award of child support. Here, as already discussed, we do not have a judgment which adjudicated the main claim for relief, but reserved other issues. In this case the petitioner brought seven claims for relief, none of which stand out as the essential or main claim of petitioner. Moreover, the judgment here reserved more than just a claim for attorney fees, it reserved another separate and substantial claim raised by petitioner, interest owed for payments not made by respondent.

In summary, since the order here did not dispose of all the petitioner’s claims and the trial judge did not include the Supreme Court Rule 304(a) finding that there is no just reason for delaying enforcement or appeal (107 Ill. 2d R. 304(a)), we must dismiss this appeal.

The appeal from the circuit court of Lake County is dismissed.

Dismissed.

McLAREN and NASH, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    HERBERT RAPRAGER et al., Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 2—88—0949
    Opinion filed May 19, 1989.
    Rehearing denied June 30, 1989.

      Peter T. Sullivan III, of Sreenan, Cain & Sullivan, P.C., of Rockford, for appellants.
    Mark E. Condon and Francis J. Leyhane, both of Condon, Cook & Roche, of Chicago (Paul S. Festenstein, of counsel), for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiffs, Herbert and Margo Raprager, appeal from judgments of the circuit court of Winnebago County entered in favor of the defendant, Allstate Insurance Company. The plaintiffs filed a three-count complaint against Allstate after it denied them recovery under their insurance policy after a fire in their home in Machesney Park, Illinois, on March 16, 1985. The plaintiffs’ son, Todd Raprager, who was 17 at the time of the fire, entered a negotiated plea of guilty to arson of the house. Todd admitted he removed a plug from a natural gas line in the basement of the house during the very early morning hours of March 16. He then left the house. Sometime later that morning, the house exploded and burned. Plaintiffs and their other son, Justin, who were all sleeping at the time of the explosion, escaped injury. Todd’s written statement to the police described problems in his relationship with his mother and father as his motive for the arson.

Count I stated a cause of action for breach of contract, count II a claim for attorney fees pursuant to section 155 of the Illinois Insurance Code (the Code) (Ill. Rev. Stat. 1985, ch. 73, par. 767), and count III a cause of action in tort for compensatory and punitive damages caused by Allstate’s intentional refusal to deal fairly and act in good faith.

Allstate’s motion to dismiss count III for failure to state a cause of action (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615) was granted. Its answer to counts I and II raised five affirmative defenses, and the plaintiffs’ motion to strike these affirmative defenses and subsequent motion to reconsider were denied. The plaintiffs filed general denials to these defenses. Allstate thereafter filed a motion for summary judgment which alleged there was no genuine issue of material fact with respect to any of the allegations of counts I and II and its first affirmative defense. After argument on the summary judgment motion and plaintiffs’ second motion to strike the affirmative defenses, plaintiffs’ motion to strike was denied, and Allstate’s motion for summary judgment was granted.

The plaintiffs raise three issues on appeal: (1) whether the court erred in denying their motion to strike Allstate’s affirmative defenses; (2) whether the court erred in granting Allstate summary judgment; and (3) whether the court erred in dismissing count III.

MOTION TO STRIKE AFFIRMATIVE DEFENSES

Inasmuch as Allstate’s motion for summary judgment was grounded on its first affirmative defense, we consider first the plaintiffs’ contention the court erred by not striking it.

Plaintiffs’ contract with Allstate is comprised of four components: (1) two pages of declarations; (2) a standard one-page 165-line fire policy (standard fire policy); (3) a cover page for the standard fire policy (cover page); and (4) a three-section “Deluxe Homeowners Insurance Policy” (homeowners’ policy).

The declarations pages show Herbert A. and Margo A. Raprager listed under “Name of Insured.”

The standard fire policy cover page provides in pertinent part:

“This form contains the provisions of the Standard Fire Policy. Whenever the terms and provisions of Section I can be construed to perform a liberalization of the provisions found in the Standard Fire Policy, the terms and provisions of Section I shall apply. [Emphasis added.]
In Consideration of the Provisions and Stipulations Herein or Added Hereto and of the Premium Specified in the Declarations *** Allstate *** does insure the Insured named in the Declarations and legal representatives, *** against all DIRECT LOSS BY FIRE, LIGHTNING AND OTHER PERILS INSURED AGAINST IN THIS POLICY INCLUDING REMOVAL FROM PREMISES ENDANGERED BY THE PERILS INSURED AGAINST IN THIS POLICY, EXCEPT AS HEREINAFTER PROVIDED, to the property described herein while located or contained as described in this policy ***. [Capitalization in original.]
* * *
This policy is made and accepted subject to the foregoing provisions and stipulations and those hereinafter stated, which are hereby made a part of this policy, together with such other provisions, stipulations and agreements as may be added hereto, as provided in this policy.”

The 165-line standard fire policy provides in pertinent part:

“This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.
* * *
This Company shall not be liable for loss by fire or other perils insured against in this policy caused, directly or indirectly, by: *** neglect of the insured to use all reasonable means to save and preserve the property at and after a loss, or when the property is in endangered by fire in neighboring premises.
* * *
Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring (a) while the hazard is increased by any means within the control or knowledge of the insured.”

The general section of the homeowners’ policy provides definitions of “you” or “your” and “insured person”:

‘You’ or ‘your’ — means the person named on the declarations page as the insured and that person’s resident spouse.
* * *
‘Insured person’ — means you and, if a resident of your household:
(a) any relative; and
(b) any dependent person in your care.
* * *
The terms of this policy impose joint obligations on the person named on the declarations page as the Insured and that person’s resident spouse. These persons are defined as you or your. This means that the responsibilities, acts and failures to act of a person defined as you or your will be binding upon another person defined as you or your.
The terms of this policy imposed joint obligations on persons defined as an insured person. This means that the responsibilities, acts and failures to act of a person defined as an insured person will be binding upon another person defined as an insured person.
* * *
This policy is void if you intentionally conceal or misrepresent any material fact or circumstance, before or after loss. We do not cover any other insured person who has concealed or misrepresented any material fact or circumstance, before or after a loss.” (Emphasis in original.)

Section I of the homeowners’ policy provides in part:

“Losses We Do Not Cover:
* * *
4. Neglect by an insured person to take all reasonable steps to save and preserve property at and after a loss or when the property is endangered by a loss we cover.
5. Any substantial change or increase in hazard, if changed or increased by any means within the control or knowledge of an insured person.
6. Intentional or criminal acts of an insured person, if the loss that occurs:
(a) may be reasonably expected to result from such acts; or
(b) is in fact the intended result of such acts.
This exclusion does not apply with respect to the interest of mortgagees not participating in these acts.” (Emphasis in original.)

Allstate’s first affirmative defense was that Todd Raprager was an “insured person” as defined in the general section of the policy and that Todd Raprager started and caused the fire in question; that the loss which occurred was reasonably expected to result from his actions or was in fact the intended result of his actions; and that, inasmuch as the policy imposes joint obligations on persons defined as an “insured person,” neither Herbert nor Margo Raprager, named in the policy as insureds and, thus, included in the definition of “insured person,” was entitled to sue on the subject policy for the fire of March 16,1985.

Plaintiffs argue the court erred when it refused to strike this affirmative defense because (1) the policy, viewed in its entirety, cannot be read so as to deny them coverage based upon the actions of their son and (2) that to so interpret the policy would be against public policy. Plaintiffs’ argument focuses on the fact the exclusions provided in the standard fire policy refer to the conduct of “the insured,” as opposed to the exclusions in section I of the homeowners’ policy, which refer to the acts of an “insured person.” Plaintiffs posit that the definitions and joint obligations language of the general section of the homeowners’ policy can only be read as a prelude to the homeowners’ policy and not to the standard fire policy since to do so would render the term “the insured” in the standard fire policy meaningless and ■ surplusage. Plaintiffs further argue the section I exclusion for intentional or criminal acts of an insured person cannot be applied to defeat recovery under the standard fire policy since that exclusion cannot be construed as performing a “liberalization” of the standard fire policy provisions.

Plaintiffs rely on cases (one of which, American States Insurance Co. v. White (1950), 341 Ill. App. 422, is an abstract opinion) which stand for the general proposition that meaning and effect should be given to every part of a contract, including all its terms and provisions (Home & Automobile Insurance Co. v. Scharli (1973), 10 Ill. App. 3d 133), and that where an ambiguity exists, a contract of insurance will be construed most strongly against the insurer (Webster v. Inland Supply Co. (1936), 287 Ill. App. 567, 574; Joseph v. New York Life Insurance Co. (1923), 308 Ill. 93, 97). The ambiguity identified by the plaintiffs here is the fact that the standard fire policy creates exclusions based only on the conduct of the insured whereas the homeowners’ policy creates exclusions based on the conduct of the insured and others by virtue of the definition of “insured person.” Plaintiffs conclude that without the application of the section I exclusions, Allstate would not prevail on its first affirmative defense and the court erred by not striking it.

In response, Allstate contends this court must accept as true all facts well pleaded together with all reasonable inferences which can be drawn from those facts in determining the legal sufficiency of its affirmative defense. Viewed thusly, Allstate contends its first affirmative defense sufficiently set forth facts which, if proved, would have defeated plaintiffs’ claim.

An “affirmative defense” is one in which the defendant gives color to his opponent’s claim but asserts new matter which defeats an apparent right in the plaintiff. (Federated Equipment & Supply Co. v. Miro Mold & Duplicating Corp. (1988), 166 Ill. App. 3d 670; Doherty v. Kill (1986), 140 Ill. App. 3d 158.) A motion to strike an affirmative defense admits all well-pleaded facts constituting the defense (Vermeil v. Jefferson Trust & Savings Bank (1988), 176 Ill. App. 3d 556), together with all reasonable inferences which may be drawn therefrom (Farmer City State Bank v. Guingrich (1985), 139 Ill. App. 3d 416), and raises only a question of law as to the sufficiency of the pleading (Vermeil, 176 Ill. App. 3d at 566). A motion to strike does not admit as true, however, those allegations which conflict with the facts disclosed in an exhibit. (McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 460.) No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 612(b); In re Estate of Schwebel (1985), 133 Ill. App. 3d 777.) Where the well-pleaded facts and inferences drawn therefrom raise a possibility that the party asserting the defense will prevail, striking of the affirmative defense is improper. Guingrich, 139 Ill. App. 3d at 422.

In an action to recover on an insurance policy, the burden is on the insurer to plead and prove as an affirmative defense that a loss otherwise covered falls within the scope of an exclusion in a policy. (Wahls v. Aetna Life Insurance Co. (1983), 122 Ill. App. 3d 309; Hildebrand v. Franklin Life Insurance Co. (1983), 118 Ill. App. 3d 861, 867.) The exclusions pleaded by Allstate in its first affirmative defense are found in section I of the homeowners’ policy. The standard fire policy provides that “[w]henever the terms and provisions of Section I can be construed to perform a liberalization of the provisions found in the Standard Fire Policy, the terms and provisions of Section I shall apply.” Allstate has not alleged part of its affirmative defense that the section I exclusions perform “a liberalization” of the provisions of the standard fire policy, nor has Allstate addressed plaintiffs’ argument in this regard except to argue the section I exclusions are not “inconsistent” with the standard fire policy provisions. The concealment, fraud, suspension, restriction and exclusion provisions set forth in the standard fire policy use the term “the insured,” however, not “insured person” as in section I, and the standard fire policy provides no express exclusion for intentional or criminal acts as provided in section I.

Accordingly, we conclude Allstate’s first affirmative defense does not raise a possibility that it will prevail, and the court erred by not striking it.

Inasmuch as we conclude below that the court erred in granting summary judgment to Allstate and that the cause should be remanded, we proceed to consider plaintiffs’ further contention that the court erred in not striking Allstate’s second through fifth affirmative defenses.

Allstate’s second affirmative defense was that plaintiffs and Todd Raprager are “insured persons” as defined in the general section of the homeowners’ policy; that plaintiffs and Todd Raprager, acting either individually or in concert, started the subject fire; and the loss which followed was a reasonably expected result or was in fact the intended result, thus triggering the exclusions contained in section I of the homeowners’ policy.

For the same reasons we have assigned above with regard to Allstate’s first affirmative defense, we conclude the court erred in not striking Allstate’s second affirmative defense as well. Allstate has not alleged as part of its affirmative defense that the section I exclusions relied upon may be construed to perform a liberalization of the standard fire policy provisions.

Allstate’s third affirmative defense was that the plaintiffs, in submitting their sworn statement of proof of loss, made material misrepresentations as to the cause and origin of the fire, their knowledge of same, the amount of the loss claimed and other matters material and pertinent to the loss claimed, and that this conduct on the part of plaintiffs rendered the policy void as provided in the concealment or fraud provisions of the general section of the homeowners’ policy. Allstate’s fourth and fifth affirmative defenses alleged that Herbert and Margo Raprager, respectively, during the course of their examinations under oath, made material representations of fact as to the cause and origin of the fire, his or her knowledge as to the same, his or her financial condition, the amount of the loss and/or the value of property allegedly destroyed by the fire.

Plaintiffs’ motion to strike Allstate’s third, fourth and fifth defenses alleged that they had been waived where Allstate’s letter to them rejecting their claim failed to include these grounds as a basis for the rejection.

In pertinent part, it was stated in Allstate’s rejection letter to the plaintiffs:

“This denial of liability is predicated on, among other reasons, breach of the terms and conditions of your policy pertaining to neglect by an insured person to take all reasonable steps to save and preserve property at and after a loss or when the property is endangered by a loss we cover; any substantial change or increase in hazard if changed or increased by means within the control or knowledge of an insured person; intentional or criminal acts of an insured person; and concealment or fraud, all found on pages 6 and 7 of Form AU9601 [the homeowners’ policy] and within the standard 165 lines of your [standard fire] policy.”

Allstate’s letter clearly included among the bases for its rejection of the plaintiffs’ claim the policy provisions relied upon by it as the bases for its third, fourth and fifth affirmative defenses. Accordingly, since these affirmative defenses raise the possibility that Allstate would prevail, the court did not err in not striking them. Guingrich, 139 Ill. App. 3d at 422.

SUMMARY JUDGMENT

Allstate’s motion for summary judgment on counts I and II was predicated on its first affirmative defense, to wit, that Todd Raprager was an “insured person” and, as such, plaintiffs, insured persons jointly liable for the acts of other insured persons, could not recover for a loss caused or intended by Todd’s criminal act of arson as provided in the section I exclusions of the homeowners’ policy. The trial court found no genuine issue of material fact existed with respect to any of the allegations of that affirmative defense, and it granted Allstate summary judgment. In addition to the arguments they present above in connection with Allstate’s first affirmative defense, plaintiffs contend summary judgment also should not have been granted where there was a genuine issue of material fact as to whether Todd was “a resident of [plaintiffs’] household” and, thus, within the definition of “an insured person.” They point to the affidavit of Herbert Raprager, offered in support of their brief in opposition to Allstate’s motion for summary judgment, which indicated “clearly it was not Todd’s intent to be a resident of the household.”

Allstate’s one-page motion for summary judgment incorporated therein its brief in support of the motion and all exhibits attached thereto or previously filed with the clerk of the court. The supporting documents included the four-part insurance policy; the sworn statements of Herbert and Margo Raprager; a certified copy of the information charging Todd Raprager with arson; a copy of the court’s letter of opinion stating that if Allstate proved the allegations of its first affirmative defense, the plaintiffs would not be entitled to recover; a copy of the court’s order denying the plaintiffs’ motion to strike defendant’s first affirmative defense; a certified copy of Todd Raprager’s jury waiver; a copy of the report of proceedings of Todd Raprager’s guilty-plea hearing; and the discovery deposition of Herbert Raprager.

According to the plaintiffs’ sworn statements, they lived in the home from March 1972 until the fire in March 1985. Todd Raprager was dependent upon them for support in March 1985 and was living with them at the insured premises at 8724 Wakefield, Machesney Park, Illinois, continuously for two weeks prior to the fire on March 16, 1985. Todd Raprager attended school from the insured premises on the day before the fire and had dinner there the evening before the fire. Prior to March 1985, Todd Raprager had run away from the residence on two occasions. According to Herbert Raprager’s sworn statement, Todd ran away once in January 1985 for between 7 and 10 days and again in February 1985 for two weeks. According to Margo Raprager’s sworn statement, Todd was gone for about a week the first time he ran away in January and for about three or four weeks the second time he ran away in February. She stated Todd did not like the “house rules” about his having to be home at midnight and he did not want to say where he was going and when he would be back. Plaintiffs reported Todd’s second runaway incident to the police but not the first. The police picked Todd up at school and brought him home “for a chat.” After the fire and before he entered Swedish American Hospital two weeks later, Todd lived with the plaintiffs at Margo Raprager’s mother’s residence. Todd did not live with the plaintiffs after he left Swedish American Hospital. Todd’s written statement to the police concerning the incident showed his address as “8724 Wakefield Drive,” and the factual basis offered in support of Todd Raprager’s guilty plea began with the statement that, “[0]n March 16, 1985 *** Todd Raprager, was living at 8724 Wakefield in Machesney Park *** with his parents Herbert and Margo Raprager and also with his brother, Justin.”

The plaintiffs’ brief in opposition to Allstate’s motion for summary judgment alleged Todd Raprager was not legally a “resident” of the insured premises on March 16, 1985. In support of their motion, plaintiffs attached the affidavit of Herbert Raprager which reads:

“I, HERBERT RAPRAGER, under oath, state as follows:
1. That Todd Raprager was not a legal resident of my household on Wakefield Drive on March 16,1985.
2. That the basis for the statement in paragraph one is that Todd Raprager previously moved out of said dwelling for signifleant periods of time, including one time for a period in excess of one month.
3. That prior to March 16, 1985, Todd Raprager had removed nearly all his clothing and small personal effects such as, yearbooks and photographs, and moved to a home with a Trisha Mueller [sic], resided and engaged in a conjugal relationship with said Trisha Mueller [sic], for a period of time in excess of one month.
4. That my wife and I informed the Secretary of State, for the State of Illinois, prior to March 16, 1985, that we were revoking our parental consent for Todd Raprager’s Driver’s License due to the fact that he was not a resident of our household and, therefore, we were not responsible for his actions, and a true and correct copy of an Order of cancellation dated March 1,1985, of said license is attached hereto.
5. That Todd Raprager, although he had slept at our residence for a short period of time prior to the fire in question, had, in addition, indicated his intent not to be a resident of said household by constantly informing me and my wife that, in fact, he had no intent of being a resident and that he was going to do anything he could so that he would not have to sleep at said house and that he was going to move out of said house and, in fact, on several occasions moved out of said house and, in fact, informed us that he wished to stay with said Trisha Mueller [sic].
6. That subsequent to the fire in question Todd never slept in the same house with myself and my wife and he always expressed the same intent he had prior to the fire, namely, to reside in a residence other than that of myself and my wife.
Further Affiant sayeth not.”

Attached to the affidavit was a copy of an order of cancellation from the Secretary of State’s office cancelling Todd’s driver’s license because consent for his application had been withdrawn. We note the court refused to consider the discovery deposition of Trisha Moeller, n/k/a Trisha Aurand, and never ruled on plaintiffs’ post-summary judgment motion for leave to file that deposition. Consequently, Aurand’s deposition is not properly a part of this record.

Allstate argues Raprager’s affidavit is insufficient to create a genuine issue of material fact since he previously testified under oath contrary to the allegations set forth therein. Such subsequent counteraffidavits have been found not to create a genuine issue of material fact. Doherty v. National Casting Division, Midland-Ross Corp. (1972), 6 Ill. App. 3d 329; Burnley v. Moore (1963), 41 Ill. App. 2d 156.

Plaintiffs correctly note that two elements are necessary to create a legal residence:

“(1) Bodily presence in that place and (2) the intention of remaining in that place; neither alone is sufficient to create a legal ‘residence.’ ” (Hughes v. Illinois Public Aid Comm’n (1954), 2 Ill. 2d 374, 380.)

A person can have only one domicile or permanent residence, and once it is established, it is retained until a new domicile is acquired. (Hatcher v. Anders (1983), 117 Ill. App. 3d 236.) A temporary departure from a residence with the intention to return to it is not an abandonment or forfeiture of the residence. (Hughes, 2 Ill. 2d at 380.) “To establish a new domicile, a person must physically go to a new home and live there with the intention of making it his permanent home.” (Hatcher, 117 Ill. App. 3d at 239.) “[T]he controlling element in determining if ‘residence’ has been lost or retained is the person’s intention” (Hughes, 2 Ill. 2d at 380), and summary judgment is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions (State Farm Mutual Automobile Insurance Co. v. Short (1970), 125 Ill. App. 2d 97, 106).

The court here was not required to draw any inferences of fact as to Todd’s intention with respect to his residency, inasmuch as the record as a whole supports its conclusion that Todd was a resident of the insured premises. Although Todd Raprager was not deposed in the course of these proceedings, his written sworn statement to the police appended to Herbert Raprager’s deposition, considered in the context of the entire record, shows he was a resident of plaintiffs’ household. In his statement, Todd described the problems he had with his parents and the fact he had run away in January. He stated further:

“I did try to set up a meeting with my school counselor and my parents to work out this problem betw-en [sic] us but I was to blame for everything and I was the only one that had to change not them. My car and driving privlages [sic] were taken away and [I was] told all my clothes and things were to stayat [sic] home and not go with me. I told them fine and [I] didn’t need them. I left and she didn’t think that I would because my car and things important were taken away. I just could not handle the things she was doing to me. I had the things that I needed and places to go to stay. I left because we were not getting along and could go other places and still get along with out the hassell [sic]. She told me that she would not pay for my college education and I said that if I couldn’t pay for it myself I did not need it. I went back later and was told it would be like nothing never [sic] happened except I did not have my drivers [sic] license. I wnnt [sic] back because I hopped [sic] that things would get better. Things were ok for a couple of days but things went back to the same old routeen [sic], nagging and yelling at me. I tried everything that I could so I thought I would try my scare tacktic [sic] or whatever you want to call it.” (Emphasis added.)

The remainder of Todd’s statement describes the formulation and implementation of his plan to scare his mother by removing the plug from the gas line in the basement. Based on Todd’s statement, we believe the court properly concluded there was no genuine issue of material fact with regard to his residency.

Nevertheless, we believe the court erred in granting Allstate summary judgment because it was not entitled to judgment as a matter of law. It is well established that summary judgment is proper when the pleadings, depositions, and other documents on file present no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005; Hapaniewski v. Rustin (1989), 179 Ill. App. 3d 951.) As discussed above, Allstate failed to plead as part of its affirmative defense the section I exclusion it relied on to deny plaintiffs’ coverage was applicable to the standard fire policy, and it was Allstate’s burden to plead and prove that plaintiffs’ loss fell within the scope of an exclusion therein.

Accordingly, we conclude summary judgment was improper, and the cause should be remanded.

DISMISSAL OF COUNT III

Plaintiffs contend the court erred when it dismissed count III with prejudice. In addition to the allegations of count I, count III alleged Allstate had a duty to deal fairly and act in good faith with plaintiffs by virtue of the parties’ insurance contract; that Allstate, knowing of its liability under the insurance policy and the damages that would be caused plaintiffs, refused to deal fairly and act in good faith with plaintiffs during the disposition of the claim; and that the plaintiffs were damaged thereby. Plaintiffs prayed for compensatory and punitive damages.

Plaintiffs concede their claim for punitive damages no longer is a viable one under the authority of Kohlmeier v. Shelter Insurance Co. (1988), 170 Ill. App. 3d 643, 656-57, appeal denied (1988), 122 Ill. 2d 576. Kohlmeier followed numerous cases which held that section 155 of the Code preempted any common law tort action allowing for the recovery of punitive damages. (See Kohlmeier, 170 Ill. App. 3d at 656-57, and cases cited therein.) Section 155 provides for an award of attorney fees and an additional penalty in cases where an insurer’s refusal or delay in payment of claims was vexatious or unreasonable. (Ill. Rev. Stat. 1985, ch. 73, par. 767.) Plaintiffs argue, however, that Kohlmeier nevertheless supports the viability of their claim for compensatory damages under count III and it should not have been dismissed. Kohlmeier, agreeing with Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, stated that, in appropriate cases, compensatory damages may be recovered for a breach of good faith and fair dealing. Kohlmeier, 170 Ill. App. 3d at 657.

Allstate argues Hoffman should not be viewed as recognizing a separate recovery in tort for compensatory damages arising out of a breach of an insurance contract because the count IV at issue in Hoffman was not described by the court as sounding in either tort or contract. The court in Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp. (1975), 29 Ill. App. 3d 339, however, recognized that a breach of the implied duty of good faith and fair dealing is both a breach of contract and a tort, and that a plaintiff is free to proceed with the theory of his choice. (Ledingham, 29 Ill. App. 3d at 344.) Consequently, the distinguishing feature Allstate notes is insufficient to defeat the authority of Hoffman and Kohlmeier recognizing such a cause of action.

Allstate’s further contention is that plaintiffs’ count III fails to allege any specific facts in support of their allegation that it “did intentionally refuse to deal fairly and act in good faith with plaintiffs.” We agree.

Allstate’s motion to dismiss takes as true all facts properly pleaded in the complaint. (Anderson Electric, Inc. v. Ledbetter Erection Corp. (1986), 115 Ill. 2d 146.) Its motion does not admit, however, conclusions of law or fact which are unsupported by allegations of specific facts upon which such conclusions rest. (Stuart Town Homes Corp. v. Rosewell (1988), 176 Ill. App. 3d 59, 63-64.) Plaintiffs’ count III fails to allege even one specific fact which, if proved, would support its allegation that Allstate refused to deal fairly or act in good faith. Accordingly, it was properly dismissed. Plaintiffs’ argument in reply that it was error for the court to dismiss this.count with prejudice with no opportunity for them to replead is belated and cites no authority, and, consequently, the issue is waived. 107 Ill. 2d Rules 341(e)(7), (g).

The judgment of the circuit court of Winnebago County striking count III is affirmed. The judgment refusing to strike Allstate’s first and second affirmative defenses is reversed, but is affirmed as to its refusal to strike Allstate’s third, fourth and fifth affirmative defenses. Its judgment granting Allstate summary judgment is reversed, and the cause is remanded for further proceedings.

Affirmed in part; reversed in part and remanded.

INGLIS and WOODWARD, JJ., concur.


author: JUSTICE HEIPLE

text:
    MARK ANDERSON et al., Plaintiffs-Appellants, v. WILLARD STOWELL et al., Defendants-Appellees (Carol Doyle, Defendant).
    Third District
    No. 3—88—0726
    Opinion filed May 30, 1989.
    Thomas A. Blade, of Blade, Thompson & Sale, of Moline, for appellants.

      Richard J. Trinrud, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiffs, Mark and Linda Anderson, brought suit against the defendants, Willard Stowell, Jackie Stowell, and Carol Doyle. Count II of the plaintiffs’ amended complaint alleged that the Stowells had violated the Consumer Fraud and Deceptive Business Practices Act (the Act) (Ill. Rev. Stat. 1987, ch. 1211/2, par. 261 et seq.). The trial court subsequently granted summary judgment in favor of the Stowells on count II of the plaintiffs’ amended complaint. The plaintiffs bring this interlocutory appeal, arguing that the court erred in granting summary judgment.

The relevant underlying facts are not in dispute. The plaintiffs purchased from the Stowells a single-family residence located in Moline, Illinois. Defendant Carol Doyle was the real estate agent involved in the transaction. In count II of the plaintiffs’ amended complaint, they alleged that the Stowells had misrepresented the condition of the basement walls in the home and had thereby violated the Act.

The Stowells filed a motion for summary judgment on count II, arguing that individuals selling their own homes are not covered by the Act. The trial court agreed and granted their motion.

We note that a motion for summary judgment should be granted “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005(c).) A reviewing court will find summary judgment to have been properly granted when the issue was determinable solely as a matter of law. Maurice Transport Co. v. Amoco Oil Co. (1986), 144 Ill. App. 3d 156, 494 N.E.2d 738.

The Stowells’ motion for summary judgment was based solely on the question of whether as a matter of law they came within the scope of the Act. The controlling case on this issue is Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 510 N.E.2d 409, appeal denied (1987), 116 Ill. 2d 578, 515 N.E.2d 129. The Zimmerman court found no support in Illinois law for the proposition that an individual selling his own home is liable to a purchaser under the Act, and it declined to extend the scope of the Act to include such individuals.

The plaintiffs supply neither case law nor meritorious arguments to distinguish or refute the reasoning of Zimmerman. We have examined Zimmerman in light of the Act and the relevant case law and agree with its conclusion.

In the instant case, the Stowells were individuals who placed their single-family home on the market and employed the services of a real estate agent. Under the reasoning of Zimmerman, they did not fall within the scope of the Consumer Fraud and Deceptive Business Practices Act. Therefore, as a matter of law, the trial court properly granted summary judgment for the Stowells on count II of the plaintiffs’ amended complaint.

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

WOMBACHER, P.J., and BARRY, J., concur.


author: JUSTICE McNAMARA

text:
    DANNY HILLYER, Plaintiff-Appellant, v. OWENS ILLINOIS GLASS COMPANY, Defendant-Appellee. — JOHN WOODY, Plaintiff-Appellant, v. LIBBY-OWENS FORD, Defendant-Appellee.
    Third District (Industrial Commission Division)
    No. 3—88—0613WC
    Opinion filed May 30, 1989.

      Mark A. Schindler, of Law Offices of Peter F. Ferracuti, P.C., of Ottawa, for appellants.
    John F. Power III and Jeffrey B. Huebsch, both of Kubiesa & Power, Ltd., of Westmont, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant Danny Hillyer and claimant John Woody each filed an application for judgment for interest and attorney fees under sections 19(g) and 19(n) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, pars. 138.19(g), 138.19(n)). The two cases were consolidated, and the trial court granted motions to dismiss in favor of respondents, Owens Illinois Glass Company and Libby-Owens-Ford, pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). Claimants appeal.

In Hillyer, the arbitrator awarded four weeks’ temporary total disability and 19 weeks’ permanent partial disability benefits for the complete loss of the use of the left hand to the extent of 20% thereof. Owens Illinois filed a petition for review on January 4, 1985. Hillyer filed a petition for review several hours later. At the review hearing before the Industrial Commission (Commission), Owens Illinois argued that the arbitrator erred in finding a causal connection and in determining the nature and extent of the disability. Hillyer argued that the arbitrator erred in not finding a greater disability. Before the Commission, both parties submitted evidence and filed briefs. The Commission affirmed the arbitrator’s award, and Owens Illinois paid it to Hillyer, but without interest. No further appeal was taken. On January 14, 1988, Hillyer filed a petition for entry of judgment and taxation of costs and attorney fees in the circuit court of La Salle County.

In Woody, the arbitrator awarded 54 weeks’ temporary total disability and permanent partial disability to the extent of 30% loss of the man as a whole. Libby-Owens filed a petition for review on October 31, 1984. Woody filed a petition for review one week later. At the review hearing before the Commission, Libby-Owens argued that the arbitrator erred in finding causal connection and as to the nature and extent of the disability. Woody argued that the arbitrator erred with respect to the nature and extent of disability and wages, but urged that the award be affirmed. Before the Commission, both parties submitted evidence. The Commission reduced the award for temporary total disability to 51 weeks and reduced the award for permanent disability to 25% loss of the man as a whole. Woody requested a full written decision, and the Commission furnished a written decision several months later. Libby-Owens paid the award to Woody, but without interest. No further appeal was taken. On January 14, 1988, Woody filed a petition for entry of judgment and taxation of costs and attorney fees in the circuit court of La Salle County.

On June 2, 1988, the trial court consolidated the two cases. On August 22, 1988, the trial court dismissed the petitions pursuant to section 2 — 619 of the Code of Civil Procedure.

On appeal, claimants contend that their filing of “cross-appeals” before the Commission does not preclude their entitlement to interest under section 19(n) of the Act. That section provides:

“After June 30, 1984, decisions of the Industrial Commission reviewing an award of an arbitrator of the Commission shall draw interest ***. *** However, when an employee appeals an award of an Arbitrator or the Commission, and the appeal results in no change or a decrease in the award, interest shall not further accrue from the date of such appeal.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(n).) (Emphasis added.)

Similarly, the arbitrator’s awards in both cases informed the parties that “should an employee’s appeal of this case result in either no change or a decrease in this award, interest shall not further accrue from the date of such appeal.”

Both claimants appealed the arbitrator’s awards when they filed petitions for review before the Commission. Hillyer’s appeal resulted in no change. Woody’s appeal resulted in a decrease in the award. Under the plain language of the statute, therefore, interest shall not further accrue for either claimant from the date of those appeals.

Claimants maintain that respondents “initiated” the appeal and that claimants “sought no relief on review other than affirmance of the arbitrator’s award.” Moreover, the “cross-reviews” filed by claimants are “legal nullities.” Claimants explain that where an employer initiates a review and the employee believes “there is even the slightest chance of obtaining an increase in the arbitrator’s award, he has no choice but to cross-appeal.” We know of no basis in the law, nor has any been cited, for such a theory. Either or both parties may appeal the arbitrator’s award.

Claimants’ reliance on Kuhl v. Industrial Comm’n (1986), 147 Ill. App. 3d 519, 498 N.E.2d 240, and Bray v. Industrial Comm’n (1987), 161 Ill. App. 3d 87, 513 N.E.2d 1045, is misplaced. In Kuhl, the pre-1984 version of section 19(n) was applied, under which no distinction was made as to whether the appeal to the Commission was initiated by the employer or employee. In contrast, the present version of section 19(n) entitles the employee to interest unless the employee appeals the award and the appeal results in no change in the award. Moreover, unlike the present case, only the employer in Kuhl appealed the arbitrator’s decision. The Commission reduced the award, the trial court reinstated the arbitrator’s award, and this court permitted an award of interest. In Bray, the pre-1984 version of section 19(n) was not applied because there had been a proceeding held pursuant to section 19(h) of the Act.

Claimants contend, as an alternative, that if they are not entitled to interest pursuant to section 19(n), then interest should be allowed under section 2 — 1303 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1303.) We have held that section 2 — 1303 of the Code and section 19(n) of the Act should be read in pari materia. (Ballard v. Industrial Comm’n (1988), 172 Ill. App. 3d 41, 526 N.E.2d 675; Aper v. National Union Electric Corp. (1988), 165 Ill. App. 3d 482, 519 N.E.2d 117; Bray v. Industrial Comm’n, 161 Ill. App. 3d 87, 513 N.E.2d 1045.) However, claimants failed to raise the issue of their entitlement to interest under section 2 — 1303 before the trial court, and therefore have waived the issue on review.

Claimants finally contend that they are entitled to attorney fees and costs pursuant to section 19(g) of the Act. That section provides that “where the employer refuses to pay compensation according to such final award or such final decision upon which such judgment is entered the [circuit] court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorney fees in the arbitration proceedings.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(g).) The employers here have timely paid the benefits awarded by the Commission. We find no basis for an award of attorney fees.

We hold that the trial court properly dismissed the petitions for interest, attorney fees and costs.

For the foregoing reasons, the judgment of the circuit court of La Salle County is affirmed.

Judgment affirmed.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE SCOTT

text:
    BRADLEY D. BOSSERT, Plaintiff-Appellant, v. F.S. TATE et al., Defendants-Appellees.
    Third District
    No. 3—88—0098
    Opinion filed June 1, 1989.
    Roger B. Gomien, of Gomien, Root & Rigazio, of Morris (Paul E. Root, of counsel), for appellant.
    James C. Kearns, of Heyl, Royster, Voelker & Allen, of Urbana (Michael E. Raub and John McGahey, of counsel), for appellee Al Messier.

      John P. McGahey and Gregory G. Smith, both of Wilson, Elser, Moskowitz, Edelman & Dicker, of Chicago, for appellee Yamaha Motor Corporation.
   JUSTICE SCOTT

delivered the opinion of the court:

This appeal seeks a review of the order of the circuit court of Kankakee County which dismisses with prejudice the complaint of the plaintiff, Bradley D. Bossert, which he had filed against the defendants Yamaha Motor Corporation, U.S.A., and A1 Messier, d/b/a Messier’s Yamaha.

On May 24, 1985, the plaintiff, age 21, suffered injuries to his lower left leg when the Yamaha motorcycle he was riding was struck in the left side by an automobile. The motorcycle was manufactured by Yamaha Motor Corporation, U.S.A., hereinafter referred to as Yamaha, and was purchased from the defendant A1 Messier, d/b/a Messier’s Yamaha, hereinafter referred to as Messier.

On May 18, 1987, plaintiff filed a complaint against the driver of the vehicle which struck him and against Yamaha and Messier. The suit against Yamaha was in three counts, namely, strict liability in tort, negligence, and breach of implied warranty. All of the counts were predicated upon the fact that the motorcycle of the plaintiff was unreasonably dangerous when put to its foreseeable use as a vehicle to ride in traffic because of its failure to be built with a frame affording protection or, in the alternative, because of the absence of crash bars (leg protection device) to protect the rider’s legs.

The complaint also charged Messier, the dealer, with negligence for selling to the plaintiff a noncrashworthy motorcycle since no protection for a rider’s legs was afforded and there was a failure to install crash bars and failure to advise plaintiff to install the same. The complaint also sought recovery from Messier for breach of implied warranty of merchantability by selling an ill-equipped (no crash bars) vehicle to the plaintiff.

Both Yamaha and Messier moved the trial court to dismiss the counts filed against them and, in support of such motions, relied on the case of Miller v. Dvornik (1986), 149 Ill. App. 3d 883, 501 N.E.2d 160, which held as a matter of law that a motorcycle without “crash bars” is not unreasonably dangerous.

In our system of jurisprudence, we follow the doctrine of “stare decisis,” which dictates that in deciding a case we abide by or adhere to previously decided cases. In seeking precedential cases, members of the legal profession are in continuous search of the elusive case which is on “all fours.” It is a rarity when such a case is located. In the instant case we have an exception. The case relied on by the trial court in reaching its decision, to wit, Miller v. Dvornik (1986), 149 Ill. App. 3d 883, 501 N.E.2d 160, in all material aspects is identical with the situation presented in the instant case.

In Miller the plaintiff was 19 years of age and the owner of a Yamaha motorcycle which was unequipped with safety crash bars. The plaintiff was involved in an intersection collision with an automobile and incurred serious leg injuries. The plaintiff filed a complaint in which, inter alia, he named as defendants Yamaha, the manufacturer, and Performance, the retailer who sold the motorcycle to the plaintiff. In Miller the reviewing court affirmed the trial court, which held that motorcycles without crash bars are not unreasonably dangerous as a matter of law. The reasoning of the court was that the inherent risks of riding a motorcycle are known and obvious to the community at large, ánd since the risks are open and obvious, motorcycles without crash bars could not be unreasonably dangerous as a matter of law.

The case of Miller is dispositive of the determination of the instant case. The trial court correctly dismissed the alleged causes of action against Yamaha and Messier.

For the reasons set forth, the judgment of the circuit court of Kankakee County is affirmed.

Affirmed.

HEIPLE and WOMBACHER, JJ., concur.


author: JUSTICE STOUDER

text:
    MARGARET WOODS et al., Plaintiffs-Respondents, v. RITA L. DURKIN, Ex’r of the Will of Thomas J. Durkin, Deceased, Defendant-Petitioner.
    Third District
    No. 3—87—0839
    Opinion filed June 2, 1989.

      Max D. Cartwright, of Bozeman, Neighbour, Patton & Noe, of Moline (Robert J. Noe, of counsel), for appellant.
    Paul O’Malley, Ltd., of Chicago (Paul R. O’Malley, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The appeal is from the trial court’s order dated November 24, 1987, wherein the court denied defendant’s motion for reconsideration of an order vacating prior orders but allowed defendant’s motion for clarification and certification pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). The trial court found that its order involved a question of law as to which there was substantial ground for difference of opinion and that an immediate appeal from the order would materially advance the ultimate termination of the litigation. As observed by the parties, the certified question for review is:

“Whether a judge, after disclosing that his daughter-in-law is employed as an associate by the firm representing the defendant, has the discretion to proceed, in the absence of immediate availability of a litigant, upon assurance by that party’s attorney that he has no objection to proceeding even though a written waiver of disqualification under Supreme Court Rule 63 is not immediately filed by the party and his or her attorney.”

This medical negligence case was filed on June 7, 1982. On January 14, 1987, defendant filed a motion to dismiss pursuant to Supreme Court Rule 219 (107 Ill. 2d R. 219) and section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619), requesting that the cause be dismissed with prejudice on the basis of plaintiffs’ failure to comply with prior court orders relating to discovery matters. The motion was set for hearing on March 6, 1987, and was assigned to Honorable Wilbur S. Johnson.

At the hearing, attorney Glenn Ruud appeared as local counsel and attorney Paul R. O’Malley appeared by telephone on behalf of plaintiffs. Attorney Robert J. Noe of the law firm of Bozeman, Neighbour, Patton & Noe appeared on behalf of defendant. Before hearing any arguments, Judge Johnson disclosed on the record that his daughter-in-law was an associate in the law firm that was representing defendant and that “under the Supreme Court Rules, the Court is required to have executed a waiver permitting this court to hear any matters involving that firm.” The judge then stated:

“It is my understanding that the waiver is technically supposed to be signed by all attorneys and all parties and presented in open court. I will further advise you that Mr. O’Malley in a telephone conversation with me this morning did waive my prohibition of hearing the cause and said I was free to hear the matter. Mr. Noe.
MR. NOE: We would certainly waive it.
THE COURT: Mr. Ruud.
MR. RUUD: Mr. O’Malley confirmed the same indication the court made regarding his willingness to have this court hear the matter.
THE COURT: The court will hear the matter if there is [sic] no further objections to my hearing it.”

Attorney Ruud next presented an oral motion to continue defendant’s motion to dismiss based upon the unavailability of Mr. O’Malley, plaintiffs’ primary attorney. The court denied the motion to continue, at which time Mr. Ruud asked that Mr. O’Malley be contacted and allowed to argue the motion to dismiss via telephone conference. Without objection, the court allowed the request. After hearing arguments, the trial court found that plaintiffs had not complied with a prior order dated August 15, 1986, relating to discovery and therefore granted defendant’s motion, with execution to take effect unless plaintiffs complied with the prior order and paid $500 to defendant’s attorney, all within 14 days.

Instead of complying with the March 6 order, plaintiffs subsequently filed two motions to vacate, one for the March 6 order and the other for the August 15, 1986, order. These two motions were set before Judge Johnson with the motion to vacate the order of March 6, 1987, being heard on April 8, 1987. After arguments, the court entered an order dated April 8, 1987, denying plaintiffs’ motion to vacate the March 6, 1987, order but staying execution of that order 30 days, pending a hearing on plaintiffs’ motion to vacate the August 15, 1986, order. Judge Johnson also stated in the order that the court would hear no further motions until such time that the parties and their counsel complied with Supreme Court Rule 63(D) (107 Ill. 2d R. 63(D)) on remittal of disqualification of a judge.

Plaintiffs’ motion to vacate the order of August 15, 1986, was subsequently denied by the trial judge who entered that order. Additionally, defendant filed her remittal of disqualification on April 28, 1987, but no such remittal was ever filed by plaintiffs or their counsel.

On May 7, 1987, plaintiffs filed a motion for voluntary dismissal and a motion to vacate the prior orders of March 6 and April 8, 1987. The motion to vacate the previous orders alleged that those orders were null and void because a signed written remittal of disqualification of Judge Johnson was not filed by all parties and their counsel before or after the hearings on March 6 and April 8, 1987. Arguments on the motion to vacate were heard by Judge Johnson on August 31, 1987, and by order filed September 9, 1987, the court vacated the prior orders of March 6 and April 8,1987.

Defendant then filed a motion for reconsideration or, in the alternative, for clarification pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). At the hearing on this motion, plaintiff Margaret Woods testified that she first became aware of the circumstances surrounding Judge Johnson’s involvement during May or June of 1987. She denied, however, that the judge’s prior adverse rulings were a factor in her decision not to sign a waiver of disqualification. On November 24, 1987, Judge Johnson entered an order wherein the court found that it was without discretion in the matter and thus required to vacate the prior orders of March 6, 1987, and April 8, 1987, pursuant to Supreme Court Rule 63. The court further found that the order involved a question of law as to which there was substantial ground for difference of opinion and an immediate appeal from the order would materially advance the ultimate termination of the litigation. Accordingly, the court denied defendant’s motion for reconsideration and certified the question previously quoted.

The rule regarding such matters is clear. Supreme Court Rule 63 (107 Ill. 2d R. 63) provides, in relevant part, as follows:

“C. Disqualification.
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where
* * *
(e) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person;
* * *
(ii) is acting as a lawyer in the proceeding ***.” 107 Ill. 2d R. 63(C)(1)(e).

In the instant case, the judge himself brought the conflict to the attention of the attorneys before the trial began, thus creating a prima facie case of disqualification. Thus, the judge did not have discretion on whether or not he could continue the case; he was disqualified.

The defendant relies on United States ex rel. Weinberger v. Equifax, Inc. (5th Cir. 1977), 557 F.2d 456, which held that the fact that a judge’s son’s law firm participated in proceedings before the judge did not, in itself, require disqualification. That case, however, is distinguishable from the present case. In Weinberger the “judge’s conflict” issue did not arise until after trial. The judge in Weinberger did not disqualify himself before the proceedings began.

This is not a case where the grounds for disqualification were discovered by the parties or by counsel of one of the parties. On the contrary, this is a case where the judge, at the first hearing, determined that he was disqualified. Judge Johnson’s declaration of disqualification is completely in accordance with the ethical canons (107 Ill. 2d R. 63), and he is to be commended for being so forthright in complying with the canons. However, while we are sympathetic to Judge Johnson’s position in proceeding with the case, his actions in proceeding were contrary to the provisions of the canons. (107 Ill. 2d R. 63.) The provisions are mandatory; they are addressed to the judge and require that he disqualify himself in certain circumstances. Thus, Judge Johnson was disqualified and should not have continued unless the remittal of disqualification requirements (107 Ill. 2d R. 63(D)) were satisfied.

Consequently, the issue to be addressed is whether, based upon the oral waiver of the attorneys, the remittal of disqualification requirements (107 Ill. 2d R. 63(D)) were fulfilled so Judge Johnson could continue hearing the matter.

The remittal of disqualification section provides, in relevant part:

“A judge disqualified *** may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge’s participation, all agree in writing that the judge’s relationship or interest is immaterial, the judge is no longer disqualified and may participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.” 107 Ill. 2d R. 63(D).

In this case there is no claim made that either party waived the disqualification orally or otherwise. There is no evidence that either attorney advised his client of the disqualification. Further, neither party was in court nor did they join in the oral waiver which their attorneys presented to the court over the telephone.

The applicable rule and requirements for the remittal of disqualification of a judge are clear. In order to execute a valid waiver, both parties and attorneys are required to properly execute the waiver and it is to become part of the official record. (107 Ill. 2d R. 63(D).) The mere fact that the parties’ attorneys orally waived the provision does not fulfill the requirements and does not result in an effective waiver of those requirements.

We emphasize, the rule requires written waiver by each party and each attorney. Even if the oral waiver of the attorneys at the time of the hearing was given some significance, it is undisputed that neither of the litigants appeared in open court, neither of the litigants waived the disqualification, and neither of the litigants executed a written waiver of the disqualification.

We believe the judge and the attorneys failed to understand or apply the ethical standard and share the responsibility for the problems created. We note that if the rulings had been adverse to the defendant rather than the plaintiff, the defendant could now be claiming that the judge should not have proceeded.

Although it seems to have been assumed by the parties that where a conflict exists, only the party unrelated to the judge should be concerned, this is not true, because the client may believe that when the judge is related to the attorney an additional burden will be assumed in order to counteract any appearance of impropriety.

In summary, where the judge has declared his disqualification as occurred in the instant case, the proceedings should terminate until such disqualification is waived in accordance with the plain meaning of the rule. Consequently, the trial court’s decision, denying defendant’s motion for reconsideration based upon the judge’s disqualification, is affirmed.

For the foregoing reasons the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.