author: JUSTICE MAAG JUSTICE LEWIS,

text:
    RICHARD PEILE et al., Plaintiffs-Appellees, v. SKELGAS, INC., et al., Defendants-Appellants.
    Fifth District
    No. 5 — 92—0040
    Opinion filed March 25, 1993.

      LEWIS, J., specially concurring.
    Ian P. Cooper, of Peper, Martin, Jensen, Maichel & Hetlage, of St. Louis, Missouri, for appellants Phillips Petroleum Company, Phillips 66 Company, and Phillips Pipe Line Company.
    Robert W. Wilson and Adrian P. Sulser, both of Evans & Dixon, of Edwardsville, for appellants Skelgas, Inc., and Skelgas Group, Inc.

      James Michael Cox, of Coburn, Croft & Putzell, of Belleville, and Shell Oil Company, of Houston, Texas (Randall J. Heldt, of counsel), for appellant Shell Oil Company.
    Sandor Korein, Robert S. Bogard, and Michael B. Marker, all of Carr, Korein, Tillery, Kunin, Montroy, Glass & Bogard, of East St. Louis, for ap-pellees.
   JUSTICE MAAG

delivered the opinion of the court:

This case is before us on a petition for leave to appeal pursuant to Supreme Court Rule 306(aXlXü) (134 111. 2d R. 306(aXlXü)) challenging the denial of a motion to transfer pursuant to the doctrine of intrastate forum non conveniens. The defendants, Skelgas, Inc., Skelgas Group, Inc., Phillips Petroleum Company, Phillips 66 Company, Phillips Pipe Line Company, and Shell Oil Company, contend that the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, abused its discretion in denying their motion to transfer this cause from St. Clair County to Pike County. We granted the defendants’ petition for leave to appeal and hereby affirm the order of the circuit court.

I. PROCEDURAL HISTORY

We believe that in order to have an understanding of the posture in which this case is presented to us, we must first trace the procedural history.

Plaintiffs originally filed an action arising out of the same occurrence in the circuit court of Madison County on April 19, 1988. At that time, the parties to the action were Skelgas Incorporated, York International Corporation, and Honeywell Incorporated. The complaint alleged that those defendants were liable in both negligence and strict liability for injuries suffered by the plaintiff as a result of an October 20, 1987, propane gas explosion at his residence in Pike County. A motion to transfer under the doctrine of intrastate forum non conveniens was filed by all defendants. The circuit court of Madison County, after considering the motions and plaintiffs’ response, granted the transfer motion on July 28, 1988, and ordered the cause transferred to Pike County. The plaintiffs did not appeal the Madison County circuit court’s order.

After transfer, the plaintiffs added as additional defendants Skelgas Group, Inc., Shell Oil Company, Phillips Petroleum Company, Phillips 66 Company, and Phillips Pipe Line Company. Discovery proceeded in the Pike County action and the parties prepared for trial. Trial was set on July 9, 1990. On April 27, 1990, the Pike County action was voluntarily dismissed by the plaintiffs.

On December 14, 1990, the plaintiffs refiled this case in St. Clair County. In the refiled St. Clair County action, the parties are the same as those involved in the original action at the time of the voluntary dismissal, except neither York International Corporation nor Honeywell Incorporated is named as a defendant in the refiled action. It is the refiled action pending in St. Clair County which is the subject of this appeal.

Following service, the defendants again filed timely intrastate forum non conveniens motions seeking the transfer of this action to Pike County.

II. FACTS

The facts in this case are not in serious dispute. On October 20, 1987, the plaintiff, Richard Peile, was attempting to light a gas furnace that was served by propane gas. During the process of lighting the furnace, an explosion and fire occurred which resulted in serious injuries to the plaintiff. In his deposition, the plaintiff stated that there was no smell of gas fumes prior to the explosion. The explosion and fire occurred at the plaintiffs’ residence in Pike County.

In St. Clair County there is a pipeline-storage facility where propane gas is stored prior to delivery to various wholesalers and other customers. At this storage facility, an odorant is added to the propane gas to enable the customers using the gas to be able to detect its presence in the event of a gas leak. Most of the gas sold to the plaintiff had been stored in the St. Clair County storage and odorization facility. A small portion of the gas sold to the plaintiff may have originated with the Shell Oil facility in Madison County.

All parties agree that there are a number of witnesses in Pike County having knowledge of the facts leading up to and following the explosion and fire. These include both fact witnesses and medical witnesses. Some of these witnesses are employed by the defendant, Skelgas. Additionally, there are medical witnesses located in Springfield that have knowledge of the plaintiff’s medical condition. While not specifically named, it is reasonable to assume that there are employees working at the storage and odorization facility in St. Clair County who would have knowledge regarding the operations conducted at that facility.

III. THE CONTENTIONS OF THE PARTIES

All current defendants are alleged to be sellers or suppliers of the propane gas in use at the time of the explosion and fire.

The defendants claim that extensive discovery was conducted in the original action and that all the witnesses deposed and five additional persons who are likely to be witnesses were shown to be residents of Pike County. Further, none of the original discovery, according to the defendants, revealed any potential witnesses who were residents of St. Clair County. The defendants state that numerous medical personnel who reside in Pike County treated the plaintiff and that physical therapy was given in Pike County. The plaintiff received additional medical services from physicians in Springfield, Illinois, and the plaintiffs have designated two Springfield, Illinois, physicians as experts. According to the defendants, there are no witnesses either factual or medical who reside in St. Clair County.

Finally, the defendants claim that since the Madison County circuit court granted the original forum non conveniens motion, and given the fact that no appeal was taken from that order, the plaintiffs should not be allowed to relitigate the issue of whether Pike County is the most appropriate forum. For these reasons, the defendants seek the transfer of this case to Pike County under the doctrine of forum non conveniens, claiming that Pike County is the most appropriate forum.

In opposition, the plaintiffs claim that Pike County was merely the fortuitous location of this occurrence. Plaintiffs state that the original action filed in Madison County focused primarily on design defects in the furnace. Of the current defendants, only Skelgas was a party at the time of the transfer from Madison County to Pike County. In contrast, the present action focuses primarily on an alleged failure to properly odorize and test gas stored in a pipeline located in St. Clair County. Thus, the plaintiffs claim that the tortious act which precipitated the fire occurred in St. Clair County. For this reason, the plaintiffs claim that St. Clair County is the most appropriate forum and ask that the denial of the defendants’ forum non conveniens motion be affirmed.

IV

In addressing the issues raised in this case, we will discuss the forum non conveniens doctrine first from a traditional standpoint. Next, although not raised by any of the parties, we will consider the effect of section 2 — 108 of the Civil Practice Law (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 108) upon the forum jion conveniens doctrine. We do so in “the interest of justice and the previously unclear nature of the law.” (Meyers v. Kissner (1992), 149 Ill. 2d 1, 8, 594 N.E.2d 336, 339.) In doing so, it will be necessary to discuss the concept of the venue at common law, the effect of section 2 — 101 through 2 — 108 of the Civil Practice Law (the venue statutes) upon common law venue principles, the history of section 2 — 108, and finally its effect upon the forum non conveniens doctrine. Ill. Rev. Stat. 1991, ch. 110, pars. 2— 101 through 2-108.

V. TRADITIONAL FORUM NON CONVENIENS ANALYSIS

A. THE DEVELOPMENT OF FORUM NON CONVENIENS IN ILLINOIS

The doctrine oí forum non conveniens was first recognized by our supreme court in the case of Whitney v. Madden (1948), 400 Ill. 185, 79 N.E.2d 593. In Whitney, relying upon the then recently announced United States Supreme Court decision of Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839, the supreme court held that if

“relief is sought in the local courts by a nonresident against a nonresident for a transaction which occurred outside the territorial boundaries of the State, for the purpose of frustrating the defendant, or if the bringing of the action unduly burdens the defendant or cause[s] him great and unnecessary inconvenience, or unnecessarily burdens the court, the trial court may, in its discretion, decline the jurisdiction of the case, even though it may have proper jurisdiction over all parties and the subject matter involved.” Whitney, 400 Ill. at 189, 79 N.E.2d at 595.

The Whitney decision applied only to cases in which an alternative forum was available in another State. Under this circumstance, since an Illinois court could not transfer an action from Illinois to another State, the circuit court was required to decline jurisdiction of the action and dismiss the case. This motion seeking dismissal based upon the forum non conveniens doctrine has been referred to as an interstate forum non conveniens motion.

Later cases developed the doctrine of interstate forum non conveniens in Illinois. Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 152 N.E.2d 385, was a case arising under the Federal Employers Liability Act (45 U.S.C. §1 et seq. (1988)). In the Cotton case, the plaintiff, a resident of Kentucky, was injured at the defendant’s switchyards in Covington, Kentucky. His suit was filed in the city court of East St. Louis. The defendant filed a forum non conveniens motion seeking dismissal of the action. The forum non conveniens motion was denied by the trial court. On appeal the supreme court was again given an opportunity to discuss the applicability the doctrine in this State. The court applied a stringent test. It stated that the trial court must determine

“whether the choice of forum was purely vexatious, or whether there is a relevant connection between the litigation and forum chosen.” Cotton, 14 Ill. 2d at 168, 152 N.E.2d at 397.

In response to claims that the plaintiff was forum shopping when he brought his lawsuit in Illinois, the court responded by stating:

“If it is ‘shopping’ for a plaintiff to bring a suit in a great metropolis where a large verdict is anticipated, why is it not also ‘shopping’ for a defendant to attempt to have the case dismissed on the ground that it should have been brought in a small community where the defendant anticipates a smaller verdict would result.” (Cotton, 14 Ill. 2d at 174, 152 N.E.2d at 400.)

The court then held that the case had not been brought in the forum selected for the purpose of vexing or harassing the defendant, and the court accordingly affirmed the trial court’s denial of the forum non conveniens motion.

The vexation-and-harassment test announced in Cotton was short lived. In People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, 180, 195 N.E.2d 634, 635, this test was formally abandoned. The court then announced that the appropriate factors to be considered in ruling on a forum non conveniens motion were those announced in Whitney and the other portions of the Cotton case that had not been overruled.

These factors were reiterated in Adkins v. Chicago Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 301 N.E.2d 729:

“Factors to be considered in disposing of a motion to dismiss forum non conveniens include the relative capacities of the two courts to provide a fair trial, the relative inconvenience to witnesses and parties, and the burden placed upon the taxpayers and residents of the jurisdiction to which the cause of action is transported.” 54 Ill. 2d at 514, 301 N.E.2d at 730.

The private-interest/public-interest factor test announced in Gulf Oil was formally approved in People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 383 N.E.2d 977. The private-interest factors were identified as:

(1) The relative ease of access to sources of proof.
(2) The availability of compulsory process for attendance of unwilling witnesses.
(3) The cost of obtaining attendance of willing witnesses.
(4) The possibility of a view of the premises if appropriate.
(5) All other practical problems that make the trial of a case easy, expeditious, and inexpensive.

The public-interest factors were identified as:

(1) The administrative difficulties which result for courts when litigation is piled up in congested centers.
(2) Jury duty is a burden that ought not to be imposed upon the people of the community which have no relation to the litigation.
(3) An interest in having localized controversies decided at home.
(4) A desire to have a court apply law with which it is familiar rather than the law of a foreign jurisdiction.

(See Giliberto, 74 Ill. 2d at 110-11, 383 N.E.2d at 985.) When applying this test, the trial court must balance the convenience of the parties and make an appropriate ruling based upon the facts and the factors set forth above. The court cautioned that a plaintiff enjoys a substantial right to select his forum, and that this choice of forum should not be disturbed unless the balance of convenience strongly favors the defendant. Giliberto, 74 Ill. 2d at 111, 383 N.E.2d at 985, citing Gulf Oil, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839.

This deference is known as the unequal-balancing test. This is in keeping with the view expressed in Restatement (Second) of Conflict of Laws, section 84, Comment c, at 251-52, and Reporter’s Note, at 255 (1971), which state that the plaintiff’s right to select the forum is one of the two most important factors to be considered. See also Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 119, 427 N.E.2d 111, 118.

The right to select the forum is not always viewed, however, with the same deference. In Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 456 N.E.2d 98, the supreme court stated:

“When the home forum is chosen, it is reasonable to assume that the choice is convenient. When the plaintiff is foreign to the forum chosen, however, this assumption is much less reasonable and the plaintiff’s choice deserves less deference.” 98 Ill. 2d at 367, 456 N.E.2d at 102.

The Wieser court stated that if the selected forum had a “connection with the litigation such as the residence of the plaintiff, or the principal place of business of the defendant, or the situs of the accident, or the decedent’s employment, it would have had an interest in providing a forum in which to resolve the dispute.” (98 Ill. 2d at 371-72, 456 N.E.2d at 104.) Therefore, these factors constitute a set of criteria to consider in determining whether the case is at “home” in the forum selected. If any of these criteria are satisfied, the plaintiff’s choice deserves greater deference and the case should normally remain in the forum selected by the plaintiff. See, e.g., Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 490 N.E.2d 694.

This was the status of the doctrine of forum non conveniens in the State of Illinois until September of 1983. Our courts had only recognized the doctrine on an interstate basis, and no decision of our supreme court had ever recognized the authority of a trial court to transfer a case from one county to another based upon the forum non conveniens doctrine. This changed with the decision of Torres v. Walsh (1983), 98 Ill. 2d 338, 456 N.E.2d 601.

In Torres, our supreme court adopted the doctrine of intrastate forum non conveniens. Torres was a medical malpractice suit arising out of treatment rendered in Sangamon County. The plaintiffs filed suit in Cook County, and the defendants filed a motion to transfer the cause to Sangamon County based upon forum non conveniens. The motion to transfer was granted, and the plaintiffs then petitioned the supreme court directly for a writ of mandamus and prohibition or a supervisory order to compel the trial court to vacate its transfer order and retain venue in Cook County.

The court recognized that intrastate forum non conveniens had not previously been adopted in Illinois. It observed that 18 of our sister States had adopted intrastate forum non conveniens through legislative action. It was conceded that our courts were without statutory authorization to order an intrastate transfer under the forum non conveniens doctrine. Torres, 98 Ill. 2d at 347, 456 N.E.2d at 605.

In adopting intrastate forum non conveniens, the supreme court reasoned that since English common law had been adopted in Illinois, and since the English courts during the 1700’s and 1800’s had transferred cases from one venue to another based on principles similar to those found in the forum non conveniens doctrine, the doctrine was, therefore, part of the common law adopted by the State of Illinois. (Torres, 98 Ill. 2d at 347, 456 N.E.2d at 605.) The court found support for this position in the fact that the Oklahoma and Kansas Supreme Courts had reached similar conclusions. Torres, 98 Ill. 2d at 350, 456 N.E.2d at 607.

With the adoption of intrastate forum non conveniens, the supreme court instructed us that the factors to be taken into consideration in making the decision whether to grant or deny an intrastate motion were “the availability of an alternative forum, the access to sources of proof, the accessibility of witnesses, the relative advantages and obstacles to obtaining a fair trial, the congestion of the court dockets, and the convenience of the parties.” (Torres, 98 Ill. 2d at 351.) The court cautioned that unless these factors strongly favored the defendant, the plaintiff should be allowed to exercise his choice of forum in conformity with the venue statutes.

Since the decision in Torres, intrastate forum non conveniens motions have become common in the trial courts of this State. No less common are the interstate motions that are filed seeking dismissal. The decisions in the intrastate and interstate cases are cited interchangeably since the factors to be considered in both types of motions are similar. See Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 506 N.E.2d 1291; Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, 581 N.E.2d 644.

B. THE APPLICATION OF FORUM NON CONVENIENS

TO THE FACTS OF THIS CASE

The trial court cited three reasons for denying defendants’ motions to transfer the cause to Pike County, stating:

(1) There is a significant connection between St. Clair County and this action for the reason that certain alleged acts of negligence were committed in St. Clair County by the defendants.
(2) There may be a site in St. Clair County for the jury to view, while the site in Pike County is no longer present and available for view.
(3) The status of the docket of the circuit court of St. Clair County would not prevent trial in an expeditious manner, and trial could be set within four months of the time of the parties announcing ready.

The sole issue to be decided is whether the circuit court of St. Clair County abused its discretion in denying defendants’ motions to transfer this cause to Pike County based upon intrastate forum non conveniens.

The supreme court has consistently held that a trial court is vested with broad discretion in ruling on a forum non conveniens motion, and its decision will not be reversed absent a showing that the court abused its discretion in weighing relevant considerations. (Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 497 N.E.2d 745.) The test is whether the relevant factors, viewed in their totality, strongly favor transfer to the forum suggested by defendant.

We consider first the relevant public-interest factors in the case before us. The defendants allege that the trial court abused its discretion in finding that there is a significant connection between St. Clair County and the action. Defendants also contend that the trial court abused its discretion in finding that the status of the trial court’s docket would not prevent a trial from being conducted in St. Clair County in an expeditious manner. Defendants allege that the residents of St. Clair County have no interest in this case while the citizens of Pike County have a compelling interest in this litigation because the explosion and fire occurred in Pike County.

All defendants save one conduct business in St. Clair County. Merely conducting business, however, in St. Clair County does not affect the forum non conveniens issue because there must be some contact with St. Clair County in order for venue and jurisdiction to be proper. (See Bland, 116 HI. 2d at 226.) Nevertheless, the extent and type of business conducted is an appropriate consideration for the circuit court on a forum non conveniens motion.

In Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 554 N.E.2d 209, actions were brought on behalf of the victims of a plane crash which occurred in Du Page County. The flight had originated in Cook County, which was “the last place the aircraft was on the ground, and the last place the plane was inspected, before the crash occurred.” (Griffith, 136 Ill. 2d at 113-14, 554 N.E.2d at 215.) The supreme court ruled that Cook County’s interest in the litigation was in ensuring the safety of flights that emanate from its airports, while Du Page County’s interest was in protecting persons within its borders and in compensating victims of accidents that occur there.

This court also addressed a similar situation in Kemner v. Monsanto Co. (1991), 217 Ill. App. 3d 188, 576 N.E.2d 1146. The Kemner case arose out of a train derailment and subsequent chemical spill that occurred in Sturgeon, Missouri. The defendant had shipped from its plant in Sauget, Illinois, a railroad tank car which contained a small amount of dioxin which was spilled in Sturgeon when the train derailed.

We affirmed the trial court’s denial of defendants’ motions to dismiss premised on forum non conveniens. While the plaintiffs were all residents of the site of the occurrence in Missouri, the defendant had a plant in Sauget, Illinois, and many of the claims centered around the defendants’ acts and omissions in its facility in Sauget. The location and importance of the defendant’s plant, the plaintiffs’ preference, the number of Illinois witnesses, and the convenience to out-of-State witnesses were enumerated as factors supporting the trial court’s decision.

In the instant case, plaintiffs allege that defendants improperly odorized and tested the propane gas stored in defendant Phillips’ storage and odorization facility located in St. Clair County. Plaintiffs further allege that the odorant should have been added to the propane at the pipeline facility. It is also the site where a Skelgas employee performed, or should have performed, a “sniff test” for the odorant. The storage and odorization facility is alleged to have been the last place the propane gas was inspected for odorant before the explosion and fire occurred in Pike County. Certainly the residents of St. Clair County have an interest in ensuring the safety of propane gas stored and odorized in their county. It is also apparent that many of the claims in this case center around the defendants’ alleged acts and omissions occurring at the storage and odorization facility. We, therefore, find that the trial court did not abuse its discretion in finding that there is a significant connection between St. Clair County and the action. As St. Clair County has a significant connection with the litigation, it also has an interest in providing a forum to resolve the dispute. Wieser, 98 Ill. 2d at 371-72, 456 N.E.2d at 104; cf. Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 490 N.E.2d 694 (holding that the situs of the alleged tortious conduct is relevant in choosing the most appropriate forum).

With reference to the court-congestion factor, figures compiled by the Administrative Office of the Illinois Courts indicate that the average time for termination by jury verdict in major civil cases was 37.5 months in St. Clair County, as opposed to 36.5 months in Pike County. In Griffith, the supreme court ruled that the mere fact that the average time for termination by jury verdict was 21.4 months in DuPage County compared to 66.3 months in Cook County did not justify the transfer of the case from Cook County. Our supreme court has also recognized and acknowledged that a trial court is in a better position than a reviewing court to assess the burdens on its own docket. (Boner v. Peabody Coal Co. (1991), 142 Ill. 2d 523, 568 N.E.2d 883.) Consequently, the circuit court did not abuse its discretion by examining the status of its own docket and concluding that court congestion did not necessitate transferring the case to Pike County.

Lastly, we address the issue of the burden of jury duty to the citizens of a county. The key consideration in this regard is the unfairness of imposing jury duty upon residents of a county “with no connection to the litigation.” (Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 215.) In Griffith the supreme court held that Cook County’s interest in the resolution of the case did not impose any unfairness in imposing jury duty on the citizens of Cook County. Likewise, in the instant case, St. Clair County’s significant connection and interest in the resolution of this case, as previously discussed, does not unfairly impose jury duty on St. Clair County citizens.

Next, turning to the relevant private-interest factors, defendants raise a number of issues relating to the accessibility of witnesses in St. Clair County.

There is little doubt that there are a number of witnesses in Pike County having knowledge of the facts leading up to and following the explosion and fire. Defendants allege that at least 10 “key fact witnesses” reside in Pike County. Two of the listed “key fact witnesses” are the plaintiffs, two are Skelgas employees, and the other six are members of the Pittsfield fire department, the ambulance service, and employees of Watson Plumbing and Heating. A trial court is entitled to consider the likelihood that witnesses who may possess uncontested information will be called to testify at trial. (Griffith, 136 Ill. 2d at 110-11, 554 N.E.2d at 213.) It is questionable that all 10 of the “key fact witnesses” shall be called to testify at trial, particularly the members of the fire department and ambulance service who responded to the explosion and fire. Likewise, it is doubtful that many of the medical witnesses who are located in Pike County or areas closer to Pike County than St. Clair County would be likely to appear and testify at trial whether the case is tried in Pike County or St. Clair County.

Coupled with the fact that there are undoubtedly some employees working at the storage and odorization facility in St. Clair County who have knowledge of the operations at the facility, we find that the circuit court did not abuse its discretion by giving little weight to the location of the possible 10 “key fact witnesses” and medical witnesses.

Plaintiffs allege that St. Clair County is more convenient for out-of-State witnesses, citing the fact that Lambert International Airport is 25 miles from Belleville, and defendants allege that Pike County is the more convenient forum for out-of-State witnesses, noting that Quincy’s airport is 30 miles from the Pike County courthouse. Without reaching the merits of this debate, we conclude that the circuit court did not abuse its discretion in its consideration of this issue. Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 554 N.E.2d 209; Boner v. Peabody Coal Co. (1991), 142 Ill. 2d 523, 568 N.E.2d 883.

Another private-interest factor to be taken into account is whether the jury would need to view a physical location. The trial court found that the storage and odorization facility in St. Clair County may be a site for the jury to view and noted that the plaintiffs’ home in Pike County is no longer present and available for view. While plaintiffs allege that the viewing of the storage and odorization facility may be an aid to the jury, defendants contend that the storage and odorization facility is of no importance and can add no benefit to the jury viewing it. It is within a court’s discretion to permit a jury to view the premises which are part of the subject matter of the litigation. (Springer v. City of Chicago (1891), 135 Ill. 552, 26 N.E. 514.) We find no abuse of discretion in the trial court’s finding that the storage and odorization facility is part of the subject matter of this litigation and may be appropriate for a view.

Finally, the defendants claim that the plaintiffs should not be allowed to relitigate the forum non conveniens issue since the Madison County circuit court ruled previously that the case should be transferred from Madison to Pike County. They express the further fear that if the plaintiffs are allowed to relitigate this issue, and if the case is again transferred to Pike County, another voluntary dismissal may occur with a subsequent refiling in a county other than Pike.

As to the relitigation claim, we simply hold that the propriety of the Madison County transfer order is not before us. Even if it were, the most that can be said of that transfer order is that under the facts before the court at that time, the Madison County court had discretion to grant or deny the motion. It chose to grant the motion. We, however, must review this case in light of the facts before the St. Clair County circuit court at the time it denied the motion.

The claim that the plaintiffs may voluntarily dismiss again if this case is transferred to Pike County is without merit. If another voluntary dismissal is taken, the dismissal would be with prejudice. Flesner v. Youngs Development Co. (1991), 145 Ill. 2d 252, 582 N.E.2d 720.

We have viewed and considered all the factors, both private and public, and find that the circuit court did not abuse its discretion in denying the motion to transfer.

VI

We will now discuss the concept of venue at common law, the changes made by our venue statutes, and the history and construction of section 2 — 108 of the Civil Practice Law.

A. VENUE AT COMMON LAW

“Venue is the place of trial of an action, the geographical location in which the action or proceeding should be brought to trial.” (36 Ill. L. & Prac. Venue §1, at 2 (1958).) At common law, for purposes of venue, all causes of action were classified as either transitory or local. A transitory action followed the defendant and was not localized to a particular county. A local action typically involved real estate and could only be brought in the county where the property was located. (United Biscuit Co. v. Voss Truck Lines, Inc. (1950), 407 Ill. 488, 502, 95 N.E.2d 439, 446.) At common law a transitory action could be brought in any county where the defendant was found. Our venue statutes have greatly modified these common law rules.

B. VENUE UNDER THE CODE OF CIVIL PROCEDURE

Section 2 — 101 through section 2 — 108 of the Civil Practice Law sets forth the general venue provisions enacted by our legislature. HI. Rev. Stat. 1991, ch. 110, pars. 2 — 101 through 2 — 108.

These sections identify the proper place or places for actions to be filed and tried, provide for the transfer of venue and the fixing of costs of transfer if an improper venue is selected, and contain waiver provisions if a defendant fails to timely object to the venue selected. Our supreme court has recognized that the task of fixing venue is traditionally a legislative function. Chappelle v. Sorenson (1957), 11 Ill. 2d 472, 143 N.E.2d 18; Mapes v. Hulcher (1936), 363 Ill. 227, 2 N.E.2d 63.

Since it is the plaintiff who commences the action, it is the plaintiff who has the right and obligation to select a proper forum.

If an improper venue is selected, a timely motion to transfer must be granted as a matter of right. (Ill. Rev. Stat. 1991, ch. 110, par. 2— 104.) A plaintiff who files an action in an improper venue without probable cause and in bad faith may be liable for the defendant’s attorney fees in addition to the costs of transfer. If the costs of transfer are not timely paid, the action may even be dismissed. Ill. Rev. Stat. 1991, ch. 110, par. 2-107.

Even under the venue statutes, certain actions remain as local actions and must be brought in a particular county. (See e.g., Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 103(b), (c).) No longer do we have truly transitory actions as we did at common law. While in certain actions there may be more than one county where venue is proper, the statutes limit the plaintiff to the particular forums that are provided. Ill. Rev. Stat. 1991, ch. 110, pars. 2-101, 2-102, 2-103.

The purpose of the venue statutes is to ensure that the case is brought in a convenient forum, a forum convenient to the defendant or the witnesses or both. See Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 368 N.E.2d 88.

Before the adoption of intrastate forum non conveniens in Torres v. Walsh (1983), 98 Ill. 2d 338, 456 N.E.2d 601, a plaintiff who filed his action in compliance with the venue statutes could be confident that the case would be tried in the forum selected. With the adoption of intrastate forum non conveniens, a trial court is required to disregard the legislative determination of convenience that was recognized in Mosele and consider the criteria identified in the private-interest/public-interest factors test to determine whether, in that judge’s opinion, some other forum might be more convenient. Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 490 N.E.2d 694.

Under this analysis of convenience, compliance with the venue statutes is entitled to little or no weight since the doctrine presupposes that venue is proper in the forum selected but that some other forum where venue is also proper is more appropriate for the trial. Bunich v. Chicago & North Western Transportation Co. (1985), 106 Ill. 2d 538, 478 N.E.2d 1362.

There is, however, one section of the venue statutes which has never been considered by our supreme court in its enunciation of the forum non conveniens doctrine. Section 2 — 108 provides:

“Place of trial. All actions shall be tried in the county in which they are commenced, except as otherwise provided by law.” Ill. Rev. Stat. 1991, ch. 110, par. 2 — 108.

This statute appears to legislatively mandate a trial in the forum chosen by the plaintiff if that forum was chosen in compliance with the venue statutes. We will now discuss the history and construction of section 2 — 108.

C. THE HISTORY AND CONSTRUCTION OF SECTION 2-108

The original statute from which section 2 — 108 was derived was adopted during Illinois territorial days. On February 3, 1809, the Congress of the United States passed the “Act Establishing the Territory of Illinois.” (See 26 Stat. 514 (1809).) Section 4 of the “Act Establishing the Territory of Illinois” adopted those portions of an “Ordinance for the Government of the Territory of the United States Northwest of the River Ohio” relating to legislative authority. Ordinance of 1787, Act of Congress (July 13, 1787) (U.S. Rev. Stat. 2d ed. 1787, at 13) (hereinafter referred to as the Northwest Ordinance).

Under the applicable portions of the Northwest Ordinance, the governor and judges of the Territory enjoyed legislative authority pending the election of a Territorial Legislature. (Northwest Ordinance, par. 5.) Pursuant to such authority, the governor and judges of the Illinois Territory passed on July 20, 1809, “An Act Concerning the General Court.” Laws of the Territory of Illinois (July 20, 1809) (Bulletin of the Illinois State Historical Library (vol. 1, June 1906), “Laws of the Territory of Illinois 1809-1811”) (hereinafter referred to as the Original General Court Act).

Section 1 of the Original General Court Act provided:

“Be it enacted by the governor and judges of the Illinois Territory and it is hereby enacted by authority of same; that there shall annually be held four terms of the general court, two of which shall be held in the town of Kaskaskia, in the County of Randolph, on the second Mondays of April and September, and two shall be held in Cahokia, in the County of St. Clair, on the fourth Mondays in April and September.”

Section 3 of the Original General Court Act is the legislative provision from which section 2 — 108 was derived. It provided:

“All suits and process of a civil and criminal nature shall be tried and determined in the county in which such suit or process originated.”

By 1812, a General Assembly had been elected in the Territory of Illinois, and pursuant to the authority of the Northwest Ordinance which still governed, the Hlinois Territorial Legislature passed a statute declaring what laws were in force in the Illinois Territory. (See “An Act Declaring What Laws are in Force in the Hlinois Territory” (Laws of the Territory of Hlinois, first session of the Legislative Counsel and House of Representatives (December 13, 1812)).) Section 2 of this act provided as follows:

“That all the laws passed by the governor and judges of the Territory of Hlinois which remain unrepealed by them are declared to be in full force and effect within this Territory, and so to remain until altered or repealed by the Legislature.”

At the time that this statute was passed, the governor and judges had not altered or repealed section 3 of the Original General Court Act. In December of 1813, the Territorial Legislature mandated the transfer of those cases pending in Cahokia to Kaskaskia for disposition. This was accomplished by the passage of an “Act Regulating the General Court.” Laws of the Territory of Hlinois, second session of the Legislative Counsel and House of Representatives (December 10, 1813) (hereinafter referred to as the General Court Act of 1813).

Section 41 of the General Court Act of 1813 declared that the general court at Cahokia would continue to operate until November 1 of 1814 at which point the papers, books, and proceedings at Cahokia would be transferred to Kaskaskia for disposition. In December of 1814, the Territorial Legislature recognized that by virtue of this transfer, the mandates of section 3 of the Original General Court Act would be violated. This conflict was eliminated by the passage of “Act Establishing a Supreme Court for the Illinois Territory.” (Laws of the Hlinois Territory, third session of the Legislative Counsel and House of Representatives (December 13,1814).) Section 7 of this act provided:

“All suits shall be tried in the county in which they originate, unless in cases that are or may be otherwise specially provided for by law, and in all cases except those hereinafter mentioned, one of the judges shall be sufficient to constitute a court.”

A careful reading of this section demonstrates that the legislature had modified the language from that which was contained in section 3 of the Original General Court Act of 1809. In particular, the phrase “unless in cases that are or may be otherwise specially provided for by law” was added. This was necessary because of the transfer of all the business at the Cahokia court to Kaskaskia effective November 1, 1814. By adding the clause “unless in cases that are or may be otherwise specially provided for by law,” the Territorial Legislature harmonized the two statutes.

In 1818, Illinois was admitted to the Union. Thereafter, the State legislature amended the statute in question on several occasions. In 1829, the legislature passed an “Act Regulating the Supreme and Circuit Courts.” (Laws of the State of Illinois (January 19, 1829).) Section 21 of this statute provided:

“All suits brought in said circuit court shall be tried in the county in which they originated, unless in cases that are or may be specially provided for by law.”

Here the legislature had simply added the words “circuit court” to the statute. Thereafter, in 1874 the statute was again amended to provide:

“All suits shall be tried in the counties in which they are instituted, except as otherwise provided by law.” “An Act to revise the law in relation to circuit courts, and the superior court of Cook County,” section 25, Statutes of Illinois, General Laws of the State, approved February 16, 1874, in force July 1, 1874 (Rev. Stat., ch. 37, sec. 42 (Hurd 1874)).

Here the words “circuit court” were deleted; the word “originated” was changed to “instituted”; and the phrase “unless in cases that are or may be otherwise specially provided for by law” was changed to “except as otherwise provided by law.” By deleting “originated” and substituting “instituted,” the legislature clarified the meaning of the statute. Under the version passed in 1874, it was clear that the legislature was mandating that the trial be held in the county in which the case was filed or instituted unless some provision of the law provided otherwise. At present, section 2 — 108 is identical to the statute passed in 1874 with only two exceptions. The word “suits” has been changed to “actions,” and the word “instituted” has been changed to “commenced.”

As pointed out above, the phrase “otherwise provided by law” found its origins in a need to harmonize the Original General Court Act which was adopted in 1809 with the General Court Act which was passed in 1813. Since the General Court Act of 1813 had transferred the cases from CahoMa to Kaskaskia, the legislature needed to amend section 3 of the Original General Court Act to account for this legislative transfer.

We must now determine the meaning of the phrase “except as otherwise provided by law” in section 2 — 108.

D. MEANING OF “PROVIDED BY LAW”

The phrase “provided by law” is frequently found in statutes and constitutional provisions in this State and other States. Various authorities have had occasion to construe this phrase and have declared that where the phrase “provided by law” is used in a statute or in a constitutional provision, it refers to a legislative act and not to the common law.

1. “Provided by law. This phrase when used in a constitution or statute generally means prescribed or provided by some statute.” Black’s Law Dictionary 1102 (5th ed. 1979).

2. “As provided by law” means that an act by the general assembly via the law-making process is envisioned when this phrase is used. Quinn v. Donnewald (1985), 107 Ill. 2d 179, 483 N.E.2d 216; County of Kane v. Carlson (1986), 140 Ill. App. 3d 814, 489 N.E.2d 467, affd on other grounds (1987), 116 Ill. 2d 186, 507 N.E.2d 482; Oak Park Federal Savings & Loan Association v. Village of Oak Park (1973), 54 Ill. 2d 200, 204, 296 N.E.2d 344, 347.

3. See numerous provisions of the Illinois Constitution of 1970, wherein the constitutional commentary accompanying those sections containing the phrase “provided by law” or “required by law” states that it is a legislative function of the General Assembly that is addressed when “provided by law” or “required by law” is used. E.g., Ill. Ann. Stat., 1970 Const., art. VI, §2, Constitutional Commentary, at 392; art. VIII, §2, Constitutional Commentary, at 138-39; art. IX, §4, Constitutional Commentary, at 176 (Smith-Hurd 1971).

4. From other jurisdictions, see the following: Pace v. Pace Brothers Co. (1936), 91 Utah 132, 147, 59 P.2d 1, 8, wherein the Utah Supreme Court held that “except as provided by law” did not refer to the “general law,” rather the phrase seems to “smack of the flavor of something done by the Legislature”; and Manchin v. Browning (1982), 170 W. Va. 779, 785, 296 S.E.2d 909, 915, wherein it was held that “provided by law” means prescribed or provided by statute.

The foregoing analysis of section 2 — 108 indicates to us that the legislature of the State of Hlinois has mandated that the trial of a case is to be held in the county in which the case is filed, unless some statutory provision mandates or permits the case to be transferred elsewhere. We are not alone in this interpretation of section 2 — 108. The only other court ever to construe this statute in terms of a forum, non conveniens analysis was a pre-Torres decision entitled Precision Components, Inc. v. Estate of Kuntz (1983), 112 Ill. App. 3d 309, 445 N.E.2d 449. In Precision the court stated: “In general, unless suit is filed in the wrong venue, the action must be tried in the county in which it is commenced.” (Precision, 112 Ill. App. 3d at 310, 445 N.E.2d at 450.) Shortly after the Precision case was decided, our supreme court, without mention of section 2 — 108, decided the case of Torres and adopted the doctrine of intrastate forum non conveniens.

E. THE EFFECT OF SECTION 2-108 UPON THE DOCTRINE

OF INTRASTATE FORUM NON CONVENIENS

In construing section 2 — 108, we must be guided by the teachings of our supreme court. In Torres, the court instructed us that there is no statutory authority in the State of Illinois for the adoption of intrastate forum non conveniens. The supreme court also declared that the sole authority for the adoption of intrastate forum non conveniens in Illinois was the fact that English common law was in effect in this State.

In Hlinois, common law is in force solely by virtue of a legislative act. Our supreme court has stated:

“ ‘The common law of England, so far as the same is applicable, and of a general nature, and all statutes or acts of British parliament, made in aid of, and to supply the defects of the common law, prior to the fourth year of James the First’ (with certain specified exceptions), ‘and which are of a general nature, and not local to that kingdom, shall be the rule of decision, and shall be considered as in full force, until repealed by legislative authority.’ [Quoting “sec. 1, ch. 28, R.S. of this State.”] This statute, without the exceptions, was passed by the general convention of the colony of Virginia, May, 1776, [citation] and in its present form was carried into the legislation of the Indiana Territory, by the act of September 7th, 1807, [citation] was in force in the Territory of Hlinois [citation] and was re-enacted by the first State legislature, by act of February 4th, 1819, [citation] and has been retained in the same form in each succeeding revision of the statute.” Bulpit v. Matthews (1893), 145 Ill. 345, 350, 34 N.E. 525, 526.

This same statute is still in force today and is found in section 1 of “An Act to revise the law in relation to the common law” (Ill. Rev. Stat. 1991, ch. 1, par. 801).

Given the fact that intrastate forum non conveniens is a product of the adoption of common law, and given the fact that the Hlinois legislature is the entity that was responsible for the adoption of common law, the legislature, therefore, is free to modify the common law in any respect it sees fit. This has been often recognized by the courts of this State. People v. Gersch (1990), 135 Ill. 2d 384, 553 N.E.2d 281; People v. Davis (1953), 1 Ill. 2d 597,116 N.E.2d 372.

We are aware of the general rule which requires statutes in derogation of the common law to be strictly construed. This rule does not apply to section 2 — 108 or any of the other provisions of our Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 1 — 106).

Virtually our entire code of civil procedure is in derogation of the common law. Certainly our venue statutes abolish the common law concept that a transitoiy action can be brought wherever the defendant is found. Instead, a plaintiff is directed by statute to bring his action in one of the specified venues. We believe it is fair to conclude that the legislature intended that if the venue statutes were complied with, a suit would not be susceptible to a court-fashioned rule of convenience that ignores the legislative determination of convenience found in our venue statutes. To make this clear, our legislature has adopted section 2 — 108 as the law of this State. Any other conclusion would render section 2— 108 a useless and meaningless statute.

If section 2 — 108 means what it says and if we and the court in Precision are correct, then all actions must be tried in the county in which they are filed unless some statute mandates or permits the transfer of the case to a different county. The first instance in which such a statute mandated a transfer was in 1813 when the Illinois Territorial Legislature transferred the cases from Cahokia to Kaskaskia. Other statutes today similarly provide for a transfer. See, e.g., Ill. Rev. Stat. 1991, ch. 110, pars. 2-106, 2-1001.

However, we need not decide today whether the doctrine of intrastate forum non conveniens has been abrogated by statute. We believe that is a decision best left to our supreme court.

In Welsh v. James (1950), 408 Ill. 18, 95 N.E.2d 872, our supreme court applied a common law rule in reaching its decision. At the time of the Welsh decision, there was in force a statute that changed the common law rule (Ill. Rev. Stat. 1939, ch. 3, par. 167). However, no party cited the statute to the court. This resulted in a decision that did not consider the statutory law in effect at that time. Later, in Bradley v. Fox (1955), 7 Ill. 2d 106, 129 N.E.2d 699, the issue arose again, and on that occasion the statutory authority was made known to the court. With this background the court ruled as follows:

“Thus, inasmuch as the authorities relied upon in the Welsh case did not at the time constitute the law, *** it is incumbent upon this court to consider the issue anew, and evolve a proper rationale.” Bradley, 7 Ill. 2d at 112,129 N.E.2d at 703.

Despite the fact that we have called on the supreme court to clarify this issue, we believe that it is proper to rule at this time and we so hold that if a plaintiff complies with the venue statute, given the mandate of section 2 — 108 the plaintiff’s choice of forum is entitled to great deference and should only be disturbed for the most compelling reasons. We, therefore, affirm the circuit court’s denial of the defendants’ motion for this independent, and additional, reason.

Since this is a matter of first impression and a matter of great importance, we would be inclined to grant an application for a certificate of importance if requested. Supreme Court Rule 316 (134 Ill. 2d R. 316).

CONCLUSION

Accordingly, the order of the circuit court denying the defendants’ intrastate forum non conveniens motion is affirmed, and the cause is remanded.

Affirmed and remanded.

GOLDENHERSH, J., concurs.

JUSTICE LEWIS,

specially concurring:

Many attorneys and circuit judges do not realize the considerable amount of time that an appellate judge spends ruling on various motions and petitions. One of the most common petitions and probably the most time-consuming petition to the appellate courts is the petition for leave to appeal under Supreme Court Rule 306(aXlXü) (134 HI. 2d R. 306(aXlXü)) from an order entered as to forum non conveniens.

The battle over the forum is also very costly and time consuming for the circuit courts and the litigants. I will leave the research, as to what the cost is to the taxpayers and the litigants, to some enterprising law professor or student. Suffice it to say that any time an appeal can be taken before trial of a cause there has to be a delay in the litigation that costs all the parties and the taxpayers. See McAllen, Deference to the Plaintiff in Forum Non Conveniens, 13 S. Ill. U. L.J. 191 (1989) (for an extensive history, criticism and recommendation for change as to forum non conveniens).

What the appellate courts are confronted with in these appeals are reviews of the trial judge’s decision as to whether witnesses have better access to the forum from Lambert International Airport in St. Louis than they have from some regional or local airport. In this case we had to decide if St. Clair County can try the case as quickly as Pike County and whether the trial judge erred in deciding that the jury might be helped by viewing the pipeline-storage facility. The battle over the forum results in a battle over minutiae.

Justice Joseph Goldenhersh was clairvoyant when he wrote in his dissent in the Torres case:

“I need not lengthen this dissent by pointing out the confusion which the utter disregard of the venue statutes evidenced by this opinion will cause in the administration of justice in this jurisdiction. To destroy in one stroke the stability created by a long history of deference to legislative governance of venue is an unfortunate mistake which should be immediately corrected.” Torres v. Walsh (1983), 98 Ill. 2d 338, 355, 456 N.E.2d 601, 609 (Goldenhersh, J., dissenting).

We now find out that somehow the intent of the legislature, as expressed in section 2 — 108, has been overlooked by the courts this past decade. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 108 (now 735 ILCS 5/2— -108 (West 1992)).) The majority opinion allows the supreme court of Llinois to rectify this oversight, if it so desires.

It is not our intent to be presumptuous or disrespectful toward the supreme court. The section 2 — 108 discussion in the majority opinion obviously can be ignored by the court if it so chooses. Perhaps, however, the supreme court is looking for a way out of the quagmire of forum non conveniens and has not had a good reason or opportunity to reconsider the doctrine. The issue is now respectfully tendered to the proper forum.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    TREVELYN ZANDER, Plaintiff-Appellant, v. LORNA WHITNEY, Defendant-Appellee.
    Fifth District
    No. 5 —91—0720
    Opinion filed March 23, 1993.

      Crowder & Scoggins, Ltd., of Columbia (Floyd E. Crowder and Alan G. Pirtle, of counsel), for appellant.
    C. Glennon Rau, of Rau & Rau, of Columbia, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Trevelyn Zander, appeals from the September 4, 1991, order of the circuit court of Monroe County dismissing counts I and III of his complaint, pursuant to sanctions authorized under Supreme Court Rule 137 (134 Ill. 2d R. 137). Plaintiff then voluntarily dismissed count II of his complaint and represents that this court has jurisdiction of the instant case pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301). Defendant, Lorna Whitney, contends that the September 4, 1991, order of the circuit court was not a final and appealable order and, accordingly, argues that this court does not have jurisdiction under Supreme Court Rule 301. In addition, defendant argues that plaintiff’s appeal of this case is frivolous and in violation of Supreme Court Rule 375 (134 Ill. 2d R. 375). Before addressing any of the issues raised by plaintiff in this appeal, we will review the factual and procedural background of this case and discuss defendant’s contest of this court’s jurisdiction on appeal.

Plaintiff filed a three-count complaint against defendant on October 18, 1989. In count I plaintiff alleged that defendant purchased a 1989 Dodge Dynasty on April 15, 1989, and borrowed $14,404.95 from plaintiff in order to make this purchase. Plaintiff attached a copy of the sales invoice from Southtown Dodge in St. Louis, Missouri, as exhibit A to his complaint, and a copy of his check to Southtown Dodge in the amount of $14,404.95 dated April 15, 1989, as exhibit B to his complaint. Plaintiff alleged that defendant agreed to repay the loan of $14,404.95 to plaintiff but has refused to do so, that plaintiff has demanded repayment of the loan, and that defendant is indebted to plaintiff in the amount of $14,404.95.

In count II of his complaint plaintiff alleged that on March 14, 1989, defendant borrowed the sum of $800 from plaintiff in order to pay living expenses and the cost of night classes which defendant desired to attend. Plaintiff attached a copy of his check made payable to defendant in the amount of $800, dated March 14, 1989, as exhibit C to his complaint. Plaintiff alleged that he had made demand of defendant for repayment of this sum but that defendant had refused to repay the loan and claimed that defendant was indebted to him in the amount of $800.

In count III of his complaint plaintiff alleged that on April 18, 1989, in order to provide for security for the repayment of the loan described in count I of the complaint for the purchase of the 1989 Dodge Dynasty, plaintiff typed a first lien in favor of himself as trustee of the Trevelyn Zander Revocable Trust, dated September 28, 1988, on the title application for the 1989 Dodge Dynasty. Plaintiff attached a copy of the original title application with first lien to his complaint as exhibit D. Plaintiff further alleged that sometime between April 18, 1989, and July 6, 1989, defendant disregarded the understanding and agreement between them and without notice to plaintiff fraudulently altered the original title application and submitted an altered title application for the 1989 Dodge Dynasty which did not contain the first lien in favor of plaintiff. Plaintiff attached a copy of the altered title application, which had been submitted to the Illinois Secretary of State’s office, as exhibit E to the complaint. Plaintiff alleged that he learned of the altered title application when he contacted the Secretary of State’s office in July 1989. Plaintiff further alleged that he attempted to contact defendant regarding the altered title application but that defendant has refused to communicate with plaintiff and to pay to plaintiff any portion of the sum due him for the loan made to defendant. Plaintiff claimed that due to defendant’s fraudulent conduct in submitting the altered title application to the Secretary of State’s office, he had been damaged in the amount of $14,404.95, and he prayed for judgment in this amount as actual damages and for punitive damages in the amount of $15,000.

On November 21, 1989, in her answer to plaintiff’s complaint, defendant filed two affirmative defenses: (1) that plaintiff gave the 1989 Dodge Dynasty to defendant as a gift and is therefore barred from recovering the 1989 Dodge Dynasty or its value from defendant; and (2) that plaintiff gave the $800 claimed in count I as a gift and is therefore barred from recovering the sum from defendant.

A bench trial of plaintiff’s complaint began on August 29, 1991. Plaintiff testified that he is a resident of Arnold, Missouri, is 64 years of age, and owns a business which buys and sells aircraft propellers. Plaintiff testified that he met defendant on July 2, 1988, at his wife’s funeral. Plaintiff stated that defendant told him she was also a widow and suggested that at some time in the future they could go walking together. About a week after his wife’s death plaintiff and defendant began walking in the mornings together and having breakfast. Plaintiff testified that on the morning of July 22, 1988, defendant proposed marriage and that he accepted. About a month later plaintiff gave defendant an engagement ring; however, in October 1988 he discovered that defendant was seeing another man, and so he asked for the return of the engagement ring and the keys to his house.

Plaintiff testified that the relationship was revived in November 1988 when he began receiving telephone calls from defendant. Plaintiff testified that he asked defendant and her son to accompany him on a trip to Florida at Christmas, and they they had initially agreed to go, but they changed their minds and told plaintiff that they would not go with him about the time they were to leave for the trip. When plaintiff returned from Florida, he found a note at his home from defendant which indicated that she wished to continue the relationship. He also received a letter from defendant dated January 24, 1989, which professed her love for plaintiff. A copy of the letter was introduced as plaintiff’s exhibit 5. Plaintiff testified, however, that he began to suspect that he was mistaken about defendant’s feelings for him in February 1989 when defendant began acting very coolly toward him. He also began to notice a certain man’s car being at defendant’s house when he drove by.

Plaintiff testified that on March 14, 1989, he picked defendant up from the Dupo, Illinois, high school where she was a counselor and girls’ track coach. Defendant was crying because she was upset about her job, and plaintiff stated that he knew she was interested in looking for another job. Plaintiff stated that he had frequently given defendant cash and gifts because he believed she was having financial problems. Plaintiff testified that he told defendant that he would “grubstake” defendant the money she would need to quit her job, finish night school and look for another job, and he asked defendant how much money she would need to do this. Defendant told him that she drew $800 at her job every two weeks, and plaintiff testified that he wrote defendant a check for $800 along with a note which indicated that the check was an installment on her commitment to change jobs. The $800 check written by plaintiff on March 14, 1989, was admitted into evidence as plaintiff’s exhibit 2A. Plaintiff testified that he received a note from defendant on Easter which indicated that she had not changed jobs but had used the $800 to cover some day-to-day expenses. Plaintiff admitted on cross-examination that there were no set terms for repayment of this loan.

Plaintiff testified that defendant had an automobile accident on April 11, 1989, and totalled her car. Plaintiff offered to provide transportation to defendant to and from school until she got another car. Defendant was upset because she did not know how she was going to finance the purchase of a new car. Plaintiff offered to take defendant to Southtown Dodge in St. Louis, Missouri, where he had previously done business. Plaintiff testified that defendant did not want to replace her wrecked vehicle with the same size automobile and picked out a larger vehicle, a 1989 Dodge Dynasty. Plaintiff had a line of credit at the Southtown Dodge dealership and wrote a check to cover the purchase of the Dodge Dynasty for $14,404.95. He stated that defendant agreed to pay over the insurance money on her wrecked automobile when she received it and that they would then arrange for payment of the balance. The check written by plaintiff on April 15, 1989, to Southtown Dodge for $14,404.95 was admitted into evidence as plaintiff’s exhibit 2. Plaintiff stated that because defendant was a “prideful lady” the car was placed solely in her name on the application for title certificate.

On April 16, 1989, plaintiff received a telephone message from defendant that stated, “I don’t know that I can marry you.” Plaintiff testified that this angered him because he was only attempting to be her friend at this time and was not thinking of marriage. He met defendant for lunch and asked defendant to return the car, telling her that he would stop payment on the check if necessary. The dealership told plaintiff that it could not take the car back unless defendant signed a statement of noninterest because the car was in her name. Plaintiff stated thát defendant refused to sign such a statement, but he was able to pick the car up from defendant.

Plaintiff received a “thank-you” card from defendant dated April 17, 1989, and a friendship memento which were admitted into evidence as plaintiff’s exhibit 12. He also admitted on cross-examination that he received a note from defendant dated April 17, 1989, which stated, “thank you so much for the car — it was the most beautiful gift I ever received in my life,” and that this note was placed on the windshield of plaintiff’s van. A copy of this note was admitted into evidence as defendant’s exhibit 14.

Plaintiff called defendant on April 18, 1989, and asked her if she would like to take the car back and handle the financial arrangements, and defendant replied affirmatively. Plaintiff picked defendant up and drove her to his home, where the Dodge Dynasty was parked.

Plaintiff and defendant went into the house where, plaintiff told her that there had been no condition of marriage involved in the purchase of the vehicle. Plaintiff testified that they discussed the financial arrangements that were previously agreed to, that she would pay him the money for her car when it came through from the insurance company and that they would then spread out the payments on the balance. He stated that defendant told him she expected to receive at least $5,000 from the insurance company. Plaintiff then took the title application for the Dodge Dynasty into his office and typed a lien in favor of the “Trevelyn W. Zander Revocable Trust” on the application. Plaintiff testified that he made a photocopy of the title application and stapled the original to the other papers defendant received from the purchase of the car and gave them back to defendant. Plaintiff identified plaintiff’s exhibit 8 as a copy of the title registration application with his lien which was added on April 18,1989.

Plaintiff stated that he told defendant that she could do nothing with the car without his approval and that defendant agreed to this. Plaintiff’s exhibit 8 was admitted into evidence without objection.

Two days later defendant called plaintiff and accused him of trying to follow her in his vehicle while she was out walking. Plaintiff testified that he called defendant a few days later because he knew she was going to the hospital in a few days for some tests, and he offered to drive her there. Defendant angrily refused, saying that she could take care of herself.

Plaintiff did not attempt to contact defendant again until May 30, 1989, when he knew she would be finished with school for the year. They did not meet at that time because he said she was busy with her night school classes. Plaintiff went out of town for three weeks and attempted to contact defendant when he returned. When plaintiff called defendant’s home on June 26, 1989, he was told that defendant would be on vacation for two weeks. Plaintiff contacted the Illinois Secretary of State’s office on July 5, 1989, and was told that there was no lien on the 1989 Dodge Dynasty which was registered in defendant’s name with their office. Plaintiff requested a title search on the vehicle. Plaintiff’s exhibit 1, a certified copy of the documents received by plaintiff from the Secretary of State’s title search on the 1989 Dodge Dynasty, was admitted into evidence. It is clear that the title application filed by defendant with the Secretary of State’s office is not the title application prepared by Southtown Dodge on April 15, 1989. Defendant admitted by counsel at oral argument that she had obtained a second title application from a bank in Illinois which she filled out and filed with the Secretary of State’s office.

Plaintiff called defendant on July 10, 1989, but was told that she was ill and could not speak with him at that time. Plaintiff called defendant’s home three times on July 12, 1989, but was unable to reach her. He received a note from defendant dated July 12, 1989, which stated that she did not want to meet with him, see him, or talk with him and wanted to end their relationship. She asked him not to call or come over to her home. A copy of the note dated July 12, 1989, was admitted into evidence as plaintiff’s exhibit 6.

Plaintiff then contacted his lawyer who sent defendant a demand letter on plaintiff’s behalf. A copy of the letter sent by plaintiff’s attorney was admitted over objection into evidence as defendant’s exhibit 1A. Plaintiff admitted that the letter did not refer to the $800 as a loan but merely stated that plaintiff “entrusted” the money to her on condition of finding a new job and because she had not done so she should pay the advance back to plaintiff. Plaintiff also admitted that the attorney’s letter does not refer to a lien on the title to the vehicle.

Plaintiff received a note from defendant dated August 8, 1989, thanking him for a subscription to a religious inspirational magazine, and he decided to make an effort to resolve the dispute between them. Plaintiff sent defendant a letter dated August 14, 1989. A copy of this letter was admitted into evidence as plaintiff’s exhibit 9, and a copy of defendant’s note was admitted into evidence as plaintiff’s exhibit 13. The August 14, 1989, letter recites that plaintiff typed a lien on the application for title to himself but he did not keep a copy of the title application nor did he place a lien on the certificate of origin. The letter further recited plaintiff’s desire that they sit down with their attorneys to resolve the matter and assured defendant that he would work with her for the repayment to be consistent with her means.

Plaintiff sent a second letter to defendant on September 2, 1989, a copy of which was admitted into evidence as plaintiff’s exhibit 11. The letter recites that plaintiff was ready to move on and asked defendant to sign the enclosed “receipt.” The receipt referred to plaintiff’s $800 check dated March 14, Í989, entrusted to defendant and used personally. The receipt also refers to the 1989 Dodge Dynasty purchased April 15, 1989, in the amount of $14,404.95 paid totally by plaintiff, titled in defendant’s name and in defendant’s possession, “free and clear of any liens.” The receipt further stated, “when this is signed by both parties there are no further claims to or from either party.” He admitted on cross-examination that this letter did not refer to a loan for $14,404.

Plaintiff sent a third letter to defendant on September 6, 1989, which was admitted into evidence as plaintiff’s exhibit 10. Attached to the letter were copies of documents purportedly from Southtown Dodge files. The first document was a copy of the title application prepared by Southtown Dodge without the lien which plaintiff later typed on the original. The second document was a copy of the title application with the lien which plaintiff stated was personally typed at his home. He stated in the letter that he pointed the lien out to defendant and thoroughly discussed and reviewed it with her as well as the fact that she was expected to pay over the money received from insurance on her car. The third document attached to the letter was a copy of the title application received by the Secretary of State’s office which was obviously not the title application on which plaintiff allegedly had typed his lien. Plaintiff pointed out that the name of the dealership was misspelled and there was no indication of any lien on the title application filed by defendant.

A copy of defendant’s investment portfolio was admitted into evidence which indicated over $80,000 worth of securities. Plaintiff also testified that he learned through discovery that defendant owned her condominium worth $87,000 free and clear of any liens.

On cross-examination plaintiff admitted that he had seen Sue Maxwell at a track meet on April 14, 1989, but denied telling Maxwell that he was going to buy defendant a car. He also denied telling defendant that the car was a gift to her. Plaintiff denied that he had typed a lien on the copy of the title application he had gotten from Southtown Dodge. He repeated his earlier testimony on direct that he had photocopied a copy of the title application with the lien shown on it, had kept that copy, and had given the original back to defendant. Plaintiff testified that since that time he had made other copies of the first photocopy he had made on April 18, 1989. Plaintiff testified that exhibit D to Ms complaint was a copy of the title application with his lien, but he did not know if this was the first copy made on April 18, 1989, or a later copy. Exhibit D to plaintiff’s complaint was admitted into evidence as defendant’s exhibit 6.

Plaintiff testified that he believed the original copy made on April 18, 1989, was given to his attorney. Plaintiff agreed, however, that all photocopies had been copies of the first photocopy. Plaintiff testified that he had circled items on defendant’s exhibit 6 and that a copy of the title application with these circles thereon had been attached with plaintiff’s letter to defendant dated September 6, 1989. Plaintiff admitted that in Ms letter to defendant dated August 14, 1989, he recited that he had typed a lien on the application for title to himself but did not keep a copy of the title application and did not place a lien on the certificate of origin. Plaintiff explained that he was referring in the letter to the Missouri application which has a copy entitled “lien holder.” Plaintiff also admitted that he had picked up a copy of the title application wMch did not have the lien notation from the Southtown Dodge dealersMp files just prior to the time he sent the September 6,1989, letter to defendant.

Plaintiff also admitted that although the lien he typed on the title application was in favor of the Trevelyn W. Zander Revocable Trust, the check written to Southtown Dodge in payment for the veMcle was written on his bank account, and he did not assign the money loaned for the $14,000 purchase to this trust. He also admitted that the complaint was filed in his own name and not in the name of the trust.

Plaintiff was then asked if he did not in fact type a lien on a copy of the title application some time after April 18, 1989. Plaintiff denied that this had happened. Plaintiff was asked if it was not true that defendant’s exhibit 6 (exhibit D attached to his complaint) was a totally different document from plaintiff’s exhibit 8 which had previously been admitted into evidence. Although plaintiff denied that the two documents were different, counsel for defendant pointed out that the notation for the lien was obviously typed in at a different position on the two documents. Plaintiff then admitted that the two documents could not be photocopies of one another but again denied that he typed the liens at different times. Plaintiff maintained that he typed the lien on the title application on April 18, 1989, but admitted that he had previously testified that every other copy in evidence was a progeny or copy of the original photocopy of the title application with the lien affixed on April 18, 1989. Defendant asked the court to take judicial notice of the evidence submitted under oath in court and suggested that the court should strike this tainted, perjured evidence.

On redirect examination, plaintiff testified that he was familiar with Missouri title applications and stated that there is a portion of the application which is pulled out if there is a lien holder. He further testified that when he indicated in the September 6, 1989, letter to defendant that he had not kept a copy of the title application, he was referring to the snap-out copy for the lien holder. Plaintiff also testified on redirect that he was the grantor and trustee of the Trevelyn W. Zander Revocable Trust and that as he understood the trust he could place things in the trust and take them out at will.

Plaintiff again admitted on redirect that plaintiff’s exhibit 8 and defendant’s exhibit 6 were not identical copies. He stated, however, that attachment B to plaintiff’s exhibit 10, which was the letter sent to defendant on September 6, 1989, appeared to be a copy of exhibit D to his complaint (defendant’s exhibit 6). Plaintiff explained that the copy of the title application with the lien typed thereon which he made on April 18, 1989, is the document marked as plaintiff’s exhibit 8 because it contains the entire front of the title application. Plaintiff further explained that when he obtained a copy of the title application from the Southtown Dodge files on September 6, 1989, which did not show the lien he affixed to the original title application on April 18, 1989, he reduced the dealership document to regular size. He then typed the lien on it before sending this document with the September 6, 1989, letter as a conformed copy of the process which had taken place on April 18,1989.

Counsel for defendant again moved to strike plaintiff’s exhibit 8 and exhibit D to plaintiff’s complaint (which was marked for identification as defendant’s exhibit 6), asked that counts I and III of the pleadings be struck and prayed that he be given leave to file for sanctions under Rule 137. As grounds for this relief counsel for defendant maintained that plaintiff had lied under oath and submitted tainted evidence to the court. The court asked counsel for plaintiff if there was not, in fact, contradictory testimony on direct and cross-examination on the part of plaintiff. Counsel admitted that the testimony was confusing but maintained that the conflicts had been explained. The court noted that plaintiff had admitted that the two copies showing the lien had been typed at two different times. The court granted the relief requested by counsel for defendant and struck counts I and III of the complaint. The court impounded the court file and granted counsel for defendant leave to file a motion for sanctions under Rule 137. The court appointed counsel for defendant, as officer for the court, to prepare a petition for indirect criminal contempt and ordered that a transcript of the trial testimony and court file be forwarded to the State’s Attorney for his review. Counsel for plaintiff moved to dismiss count II of the complaint without prejudice, and the court allowed the motion without objection on the part of the defendant. The circuit court entered an order on September 4, 1991, dismissing counts I and III of plaintiff’s complaint pursuant to Supreme Court Rule 137, allowing plaintiff’s motion to voluntarily dismiss count II of the complaint without prejudice. The court further ordered that the court file and all exhibits be impounded and referred to the State’s Attorney of Monroe County for review.

Defendant contends that this court is without jurisdiction in the instant case and that appeal of this case is frivolous and in violation of Supreme Court Rule 375 because the court’s order of September 4, 1991, is not a final and appealable order. We must disagree. The granting of defendant’s motion to strike, pursuant to Supreme Court Rule 137, caused the dismissal of all of plaintiff’s claims against defendant except for the claim stated in count II of the complaint. Plaintiff immediately moved to dismiss this count of the complaint and the court granted plaintiff’s motion without objection on the part of the defendant. At this point there were no claims on plaintiff’s behalf pending before the court. The court’s entry of the formal written order on September 4, 1991, affirming involuntary dismissal of counts I and III and voluntary dismissal of count II of the complaint thus made the final determination affecting the substantive issues in this civil case. The only matter left pending was a related criminal matter not part of the civil case brought by plaintiff. Thus, the September 4, 1991, order was final and appealable under Supreme Court Rule 301, and the issues with respect to the court’s dismissal of counts I and III as a Rule 137 sanction are now properly before us. Plaintiff’s appeal therefore cannot be considered frivolous and in violation of Supreme Court Rule 375.

Plaintiff raises three issues for review:

(1) whether the trial court’s order dismissing two of the three counts of plaintiff’s complaint pursuant to Supreme Court Rule 137 was an “appropriate sanction” as required by the rule;
(2) whether the trial court’s dismissal of plaintiff’s complaint in the course of trial violated plaintiff’s right to due process; and
(3) whether the trial court’s order itself violated the express requirements for sanctions imposed pursuant to Rule 137.

Because we believe that the trial court abused its discretion in the sanctions ordered pursuant to Rule 137, we reverse.

Supreme Court Rule 137 (134 Ill. 2d R. 137) provides in pertinent part as follows:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney fee. All proceedings under this rule shall be within and part of the civil action in which the pleading, motion or other paper referred to has been filed, and no violation or alleged violation of this rule shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney involved in the civil action in question.
***
Where a sanction is imposed under this rule, the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.” (134 Ill. 2d R 137.)

Rule 137, which superseded amended section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611), is intended to prevent counsel from making assertions of fact or law without support, whether the assertions be written or oral. (Lewy v. Koeckritz International, Inc. (1991), 211 Ill. App. 3d 330, 334, 570 N.E.2d 361, 364. ) The test is what was reasonable under the circumstances; in evaluating the conduct of an attorney or party who signs a pleading or other paper filed with the court certifying that he has made a reasonable inquiry into the basis of the pleading or other paper, the court must determine what was reasonable to believe at the time the document was presented to the trial court, rather than engage in hindsight. (Lewy, 211 Ill. App. 3d at 334, 570 N.E.2d at 364-65.) Illinois courts may seek guidance in Federal courts’ interpretations of Federal Rule of Civil Procedure 11 in interpreting this rule permitting imposition of sanctions. (Lewy, 211 Ill.. App. 3d at 335, 570 N.E.2d at 365. ) This is so because the predecessor of Rule 137, former section 2 — 611 of the Code of Civil Procedure as last amended in 1986, was drawn directly from Federal Rule of Civil Procedure 11. (Kemner v. Monsanto Co. (1991), 217 Ill. App. 3d 188, 214, 576 N.E.2d 1146, 1162.) Under Federal Rule 11, sanctions cannot be imposed upon a party unless that party has actual knowledge that the offending paper filed constituted wrongful conduct under the rule. Kemner, 217 Ill. App. 3d at 214, 576 N.E.2d at 1162, citing Cross & Cross Properties, Ltd. v. Everett Allied Co. (2d Cir. 1989), 886 F.2d 497.

A trial court’s decision to impose sanctions for interposing unfounded pleadings for an improper purpose will not be reversed absent an abuse of discretion. (Kennedy v. Miller (1991), 221 Ill. App. 3d 513, 525, 582 N.E.2d 200, 208.) A trial court exceeds its discretion only where no reasonable person would take the view adopted by the trial court; if reasonable persons could differ as to the propriety of the trial court’s actions, then a reviewing court cannot say that the trial court exceeded its discretion. (Lewy, 211 Ill. App. 3d at 334-35, 570 N.E.2d at 365.) We also note that the predicate to such deference is that the trial court make explicit factual findings upon which a court of review may make an informed and reasoned decision. Bertuli v. Gaull (1991), 215 Ill. App. 3d 603, 605, 574 N.E.2d 1390, 1391.

In the instant case plaintiff testified that each copy of the application for title showing the lien which he affixed on April 18, 1989, was a progeny of the initial copy which was made that same day. He testified that exhibit D to his complaint was one of those photocopies. He later admitted under cross-examination that exhibit D to his complaint could not have been made from the same original photocopy as plaintiff’s exhibit 8. On redirect he testified that exhibit D to his complaint (defendant’s exhibit 6) appeared to be a copy of an attachment he prepared on or about September 6, 1989, for a letter he was sending to defendant reviewing the basis for his claim that the payment for defendant’s car was a loan and not a gift. He testified that he went to the dealership and obtained a copy of the title application prepared for defendant from their files. As the lien was typed at plaintiff’s home some three days later, the dealership file copy did not show plaintiff’s lien. Plaintiff explained that he reduced the copy size and conformed this copy to replicate a copy of the title application after he had affixed his lien on April 18, 1989. Plaintiff inadvertently attached this conformed copy as an exhibit to his complaint but insisted that plaintiff’s exhibit 8, which was introduced into evidence without objection, was a copy of the document which was prepared on April 18, 1989, showing a lien on defendant’s vehicle in favor of the Treve-lyn W. Zander Revocable Trust.

Although plaintiff’s testimony in this regard was undoubtedly confusing and hardly unassailable, we disagree with the court’s observation that plaintiff’s testimony was contradictory and with its legal conclusion that plaintiff’s testimony on direct examination warranted dismissal of counts I and III of plaintiff’s complaint. First, we note that only proof of count III of plaintiff’s complaint, which was based on defendant’s alleged fraudulent conduct in substituting for the title application with plaintiff’s lien affixed with a title application with no lien affixed, necessitated proof of the authenticity of plaintiff’s exhibit D. Appropriate sanctions for misrepresentations in filing this exhibit D with the complaint could have been accomplished by the striking of this exhibit. We also note that the court did not make explicit findings either at trial or in the written order of September 4, 1991, regarding its basis for dismissal of these two counts other than its observation that plaintiff’s testimony was contradictory. Moreover, the court did not make any findings or allow any argument as to whether a less severe penalty such as the striking of the exhibit was inappropriate.

In addition, as plaintiff’s testimony on redirect examination illustrates, while exhibit D was a conformed copy of the copy made of the title application with lien affixed on April 18, 1989, plaintiff reiterated that plaintiff’s exhibit 8, which was admitted into evidence, was in fact a copy of the document with the lien affixed which plaintiff testified was made of the original on that date. Thus even if exhibit D had been struck as a sanction for violation of Rule 137, plaintiff’s exhibit 8 could have been substituted for exhibit D to the complaint allowing count III to survive a test for legal sufficiency. We also note that defendant admitted that the title application she filed with the Secretary of State’s office was not the title application prepared at the dealership, whether or not plaintiff in fact later added on April 18, 1989, his lien to that document. Moreover, at this point in the trial defendant had not yet been called to testify and so had not been questioned as to the whereabouts of the original title application which she signed at the dealership. Production of this document would conclusively prove the claim stated in count III of the complaint or, alternatively, provide grounds for a directed verdict in favor of defendant on this count. Plaintiff testified, and presumably witnesses from the dealership would also be called to testify, that this document was given to her custody when the car was purchased. We believe that this evidence, as well as any inability on defendant’s part to produce the original title application, although circumstantial in nature, would have been relevant to proof of count III of plaintiff’s complaint. We therefore find that the trial court abused its discretion in striking count III of the complaint because such sanction was at the very least premature at this point in the trial and because this sanction was unwarranted by the evidence.

Second, we note that count I of plaintiff’s complaint was based on the alleged oral contract between plaintiff and defendant that plaintiff would finance defendant’s purchase of the Dodge Dynasty. Plaintiff testified that they agreed that after defendant had paid over the insurance proceeds from her previous car accident he would spread out the remaining balance in payments which she could afford. Thus, the affixing of a lien on the title application and, consequently, exhibit D to the complaint were immaterial to proof of this alleged oral loan contract. Based on the objective standard of judging the reasonableness of the Rule 137 sanction, we must find that the trial court abused its discretion in ordering the dismissal of count I to plaintiff’s complaint because both exhibit D and plaintiff’s testimony concerning this exhibit which the trial court found “contradictory” were immaterial to proof of this count of the complaint.

Accordingly, we reverse the September 4, 1991, order of the circuit court of Monroe County and remand this case for further proceedings.

Reversed and remanded.

LEWIS and RARICK, JJ., concur.