author: JUSTICE BOWMAN

text:
    THE VILLAGE OF HUNTLEY, Plaintiff-Appellant, v. MERLE J. OLT-MANN, Defendant-Appellee.
    Second District
    No. 2 — 92—0463
    Opinion filed April 8, 1993.
    Michael F. Kukla and Todd W. Syverson, both of Michael F. Kukla, Ltd., of Crystal Lake, for appellant.
    Thomas F. Loizzo, of Kell, Nuelle & Loizzo, of Woodstock, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

The defendant, Merle J. Oltmann, was charged by complaint under the ordinances of plaintiff, the Village of Huntley, with three offenses commonly described as improper lane usage, driving under the influence of alcohol, and fleeing and eluding a police officer. At trial, defendant’s motions to dismiss were granted by the trial court on the grounds that the complaints were facially defective because they indicated that the three offenses occurred on two different dates, whereas the plaintiff contended at trial that they all occurred in one transaction. Plaintiff appeals. We reverse.

The facts of this case are not at issue. Those facts necessary to understand our disposition are herein set forth. At approximately 8:49 p.m., on July 19, 1991, Officer Daniel Latham of the plaintiff’s police department was patrolling on Bonnie Brae Street in the Village of Huntley. He observed a motorcycle driven by defendant turn wide into the southbound lane, proceed back into the northbound lane, and continue northbound on Bonnie Brae from Main Street. Upon observing the motorcycle weaving, Officer Latham turned on his red emergency lights and ordered the driver to pull over. The motorcycle then accelerated and turned westbound on Main Street. The defendant was unsuccessful in executing a turn and ended up in a ditch. After arriving at the crash scene, Officer Latham noticed a strong odor of alcohol on the defendant’s breath and that defendant was swaying and off balance. Defendant refused to take a field sobriety test. Defendant was transported to the police station, where three Illinois Uniform Traffic Citation and Complaints (Illinois Uniform Traffic Tickets) were drafted by Officer Latham. Two of the complaints, one charging driving under the influence of alcohol, local ordinance 15 — 6—101 A, and one charging improper lane usage, local ordinance 15 — 9—109, stated that the incident occurred on July 22, 1991. A third complaint charging fleeing or attempting to elude a police officer was dated July 19, 1991. In addition, the complaint charging improper lane usage cited local ordinance 15 — 9—109, without specifying which subsection, a through d, of the ordinance the defendant violated.

At trial, Officer Latham testified that the three complaints arose from one incident which occurred on July 19, 1991. After the plaintiff rested, the defendant made oral motions to dismiss two of the complaints pursuant to section 111 — 3(a)(4) of the Code of Criminal Procedure of 1963 (Code) (111. Rev. Stat. 1991, ch. 38, par. Ill — 3(a)(4)) for failure to state the date of the offense definitely. Defendant also moved that the improper lane usage charge be dismissed for failure to specify the subsection of the ordinance under which defendant was charged. A directed finding in favor of defendant was made on all three complaints.

On appeal, defendant asserts that he was acquitted and that the plaintiff cannot appeal his acquittal. This argument fails as the complaints themselves were found to be deficient, were dismissed before the trial court ever got to the merits of the case, and thus no acquittal occurred. Where a trial court terminates proceedings at a defendant’s behest, and the court does not address guilt or innocence of defendant, the double jeopardy rule does not apply. People v. Ruiz (1979), 78 111. App. 3d 326, 331.

Defendant next argues that, if an appeal is maintained, then a complaint which lacks the necessary certainty to charge an offense is void and vulnerable to attack at any time, citing People v. Heard (1970), 47 Ill. 2d 501. Heard may be distinguished from the present case as a case in which a criminal complaint for gambling was charged under the Criminal Code of 1961 (111. Rev. Stat. 1967, ch. 38, par. 28 — 1(a)(8)). Rather, we choose to follow the cases dealing with Illinois Uniform Traffic Tickets. In People v. Domovich (1980), 91 Ill. App. 3d 870, we stated the belief that in People v. Tammen (1968), 40 Ill. 2d 76, the court viewed the Illinois Uniform Traffic Ticket cases as sui generis, and thus we elect to follow that case rather than following those dealing with criminal complaints, indictments, and informations.

Defendant also contends that reliance on the three complaints would violate the constitutional mandate that a complaint must inform the accused of the nature of the charge, allowing him to prepare a defense, and serve as a bar to future prosecutions for the same offense.

However, plaintiff cites Tammen, as well as Domovich (91 Ill. App. 3d 870), and People v. Askeland (1988), 166 Ill. App. 3d 78, to support the proposition that objections to the complaint which do not go to the merits of the offense are waived if not raised prior to trial. (Tammen, 40 Ill. 2d at 79.) Tammen was a case in which the defendant was stopped for drag racing and received an Illinois Uniform Traffic Ticket which stated that he committed the offense of “drag racing,” yet the section of the Uniform Act Regulating Traffic on Highways which was cited was that which dealt with reckless driving, not that which dealt with drag racing. Defendant in Tam-men argued that the complaint violated his constitutional right to be informed of the nature and cause of the accusation. In Tammen, the Illinois Supreme Court referred to the constitutional and statutory bases which require that the proper information be communicated to the accused. The court held that where there is no objection to the sufficiency of the ticket or no request for a bill of particulars, the complaint is sufficient and satisfies section 111— 3(a)(3). (Tammen, 40 Ill. 2d at 79.) The Appellate Court, Second District, interpreted Tammen as requiring a pretrial objection to the sufficiency of an Illinois Uniform Traffic Ticket in the Domovich and Askeland cases. (Domovich, 91 Ill. App. 3d at 874; Askeland, 166 Ill. App. 3d at 80.) Thus, herein we apply the rules set forth by our supreme court and these earlier second district cases.

Tammen examines statutory and constitutional bases in its analysis. The pertinent part of article I, section 8, of the Illinois Constitution of 1970 provides: “In criminal prosecutions, the accused shall have the right *** to demand the nature and cause of the accusation and have a copy thereof ***.” (Ill. Const. 1970, art. I, §8.) The purpose of this guaranty is to secure such clear designation of the offense charged against the accused as will enable him to fully prepare for his defense and to plead the judgment in bar of a subsequent prosecution for the same offense. (People v. Peters (1957), 10 Ill. 2d 577.) Section 111 — 3(a) of the Code provides:

“A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.” 111. Rev. Stat. 1991, ch. 38, par. Ill — 3(a).

In the present case, defects in the complaint were raised by defendant for the first time at trial. According to the numerous cases following Tammen, such objections to facial defects in traffic complaints were insufficient as they were not raised prior to trial. Askeland, 166 Ill. App. 3d at 80; People v. Schultz (1988), 173 Ill. App. 3d 738, 743; People v. Sikes (1986), 141 Ill. App. 3d 773, 777; Domovich, 91 Ill. App. 3d at 874.

In the present case, at issue are: (1) the incorrect date of the offense on the face of two of the complaints, corresponding to subsection (4) of section 111 — 3(a); and (2) the lack of an indication of subsection of the ordinance section of one of the complaints, corresponding to subsection (2) of section 111 — 3(a). These are different subsections from that at issue in Tammen, in which at issue were the nature and elements of the offense charged, corresponding to subsection (3) of section 111 — 3(a). Nevertheless, Illinois courts have not interpreted the Tammen court to hold narrowly that only facial defects in the statement of the nature and elements are to be overcome. We have held that objections to defects in other elements listed in section 111 — 3(a) are waived if not objected to before trial. For instance, in Askeland, the complaint charged defendant with “Driving Under Influence,” but it failed to allege of what substance defendant was under the influence. In addition, it failed to cite the specific subsection of the pertinent Illinois Vehicle Code section 11— 501(a) under which the State was proceeding. This court followed the Tammen rationale in that case and, because defendant failed to challenge the sufficiency of the charge prior to trial, the traffic ticket was considered sufficient to state the charge. (Askeland, 166 Ill. App. 3d at 81.) In Askeland, we interpreted Tammen to be broad enough to encompass facial defects in the name of the offense and the statutory provision which was allegedly violated. Thus, in accord with Askeland, defendant’s objection in the present case to the lack of subsection designation on the improper lane usage complaint is deemed waived as it was not raised prior to trial. Furthermore, there is good reason to expand the Tammen rule to the date on the complaint, as well, as discussed below.

The Tammen court reasoned that a traffic ticket is not set forth with the same precision as an indictment. It reasoned that the traffic ticket is only used for misdemeanors, is written by the arresting officer instead of a State’s Attorney, and is generally written at the time the offense is committed. (Tammen, 40 Ill. 2d at 79.) Under these circumstances, the pleader is entitled to some leeway if defendant’s objection is not timely.

In addition, this court notes that defendant could have requested a more particular averment as to the date of the offenses charged and the ordinance subsection cited by moving for a bill of particulars but did not do so. (111. Rev. Stat. 1991, ch. 38, par. 111 — 6.) A bill of particulars is provided to give more specificity of detail to supplement a complaint or indictment so as to enable an accused better to understand the nature of the charge against him or to better prepare his defense. People v. Patrick (1967), 38 Ill. 2d 255, 260; see also Tammen, 40 Ill. 2d at 79; Askeland, 166 Ill. App. 3d at 81; Domovich, 91 Ill. App. 3d at 874.

Furthermore, the elements of time and place have been held to be “ ‘subsidiary matters’ which are separate and distinct from the substantive matter of stating the nature and elements of the offense charged.” (Patrick, 38 Ill. 2d at 259, quoting People v. Blan chett (1965), 33 Ill. 2d 527, 533.) The Patrick case dealt with an indictment for theft; thus, we determine that the principle clearly applies to circumstances involving Illinois Uniform Traffic Tickets.

Plaintiff further makes the argument that the dates on all complaints clearly fell within the statute of limitations. We note that the date of the offense was, according to the plaintiff, July 19, 1991. The trial took place March 20, 1992, which is well within the 18-month statute of limitations for misdemeanors. 111. Rev. Stat. 1991, ch. 38, par. 3 — 5(b).

Furthermore, the plaintiff posits in its brief that the record and the indictment prove that these violations occurred in one transaction or occurrence, thus eliminating the potential for double jeopardy. While it is at issue whether the complaints show that the violations occurred in a single transaction, we note that the record in this case shows that plaintiff’s witness testified that the three violations occurred in a single transaction. Thus, defendant will not be subjected to multiple prosecutions for the same offense since plaintiff cannot now charge that defendant violated the three ordinances on more than one occasion. (People v. Leonhardt (1988), 173 Ill. App. 3d 314, 320.) Therefore, the constitutional requirement that defendant know the nature of the charge and not be subjected to multiple prosecutions for the same offense will be satisfied.

On the basis of the reasoning herein set forth, we determine that the three complaints were not constitutionally defective, reverse the trial court’s directed findings, and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

INGLIS, P.J., and McLAREN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK BUTLER, Defendant-Appellant.
    Second District
    No. 2 — 91—0343
    Opinion filed April 8, 1993.
    G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, and Kathleen T. Zellner, of Kathleen T. Zellner & Associates, of Naperville, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Mary F. Rooney, of Chicago (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Frederick Butler, appeals his convictions of possession of more than 15 but less than 100 grams of cocaine (HI. Rev. Stat. 1991, ch. 56x/2, par. 1402(aX2)) and possession with intent to deliver of more than 15 but less than 100 grams of cocaine (111. Rev. Stat. 1991, ch. 56x/2, par. 1401(aX2)). Defendant contends that the evidence was insufficient to prove beyond a reasonable doubt that he knowingly possessed the cocaine.

On July 11, 1990, Waukegan police officers armed -with a search warrant raided a house at 404 McKinley. On the second floor, the officers found a bedroom secured by a padlock. They searched this room and discovered in a dresser drawer two plastic bags containing paper bindles holding a total of 24.2 grams of cocaine. One of the paper bin-dles, containing 1.94 grams of cocaine, contained defendant’s fingerprint.

Police also found photographs of defendant, pieces of mail addressed to defendant and a copy of his birth certificate. The mail included an insurance cancellation notice, a letter from the clerk of the circuit court, a letter, and a postcard from the Lake County elections department.

Based on this information, police obtained a warrant for defendant’s arrest. He was charged with possession and possession with intent to deliver cocaine.

The house at 404 McKinley is a two-story, single-family home. Diane Hawkins was the owner, and she was the only person present when the police executed the search warrant.

At trial, Jessie Hawkins, defendant’s cousin, testified that defendant used to live at 404 McKinley, but had not resided there since March 1990. Jessie Hawkins lived there with his mother, sister, little brother, nephew and a friend, Reggie Hooks.

Hawkins further testified that Hooks had a key to the northeast bedroom. He had seen Hooks entering the room using the key. He had also seen several other persons in the room. Defendant did not have a key to the room. He had seen defendant at 404 McKinley only when he came to get some clothes after his release from jail.

Diane Hawkins also testified that defendant had not lived in her house since March 1990. In April, defendant began serving a sentence in the Lake County jail for an unrelated offense.

A1 Rogers, a truant officer and coach at Waukegan East High School, testified that after defendant was released from jail he moved in with Rogers. Defendant was released to his custody on June 10, 1990, in order to start college classes the next day. Defendant had resided with Rogers continuously from June 10 to the date of his arrest. Rogers acknowledged on cross-examination that he occasionally took defendant to his girlfriend’s house for several hours at a time and that he took him to 404 McKinley on certain occasions to pick up clothes.

The court found defendant guilty of possession of and possession with intent to deliver the cocaine. After denying his post-trial motion, the court sentenced defendant to a term of nine years’ imprisonment. Defendant timely appeals.

Defendant’s sole contention on appeal is that the State failed to prove beyond a reasonable doubt that he knowingly possessed the cocaine found at 404 McKinley. Defendant maintains that the State failed to prove that he had the requisite control to constructively possess the cocaine and that he even had knowledge of the presence of the drug at 404 McKinley. He further contends that his fingerprint was insufficient to establish the necessary knowledge and control.

In a prosecution for unlawful possession of narcotics, the State must prove beyond a reasonable doubt that defendant had either actual or constructive possession of the drugs. (People v. Melgoza (1992), 231 Ill. App. 3d 510, 529.) The State must prove that defendant had knowledge of the presence of the narcotics and that they were in his immediate possession and control. (People v. Songer (1992), 229 Ill. App. 3d 901, 904-05; People v. Gallagher (1990), 193 Ill. App. 3d 566, 569.) Constructive possession may be inferred from defendant’s exclusive control of the premises where the drugs were found. (People v. Galloway (1963), 28 Ill. 2d 355, 358; Songer, 229 Ill. App. 3d at 905.) Similarly, knowledge may be established by proof of defendant’s acts or other circumstances which reasonably imply that he knew of the presence of the drugs. (People v. Cruz (1984), 129 Ill. App. 3d 278, 289.) Defendant’s knowledge and possession are questions of fact to be determined by the trier of fact, and its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt. Songer, 229 Ill. App. 3d at 905.

In the instant case, the evidence established that defendant at one time resided at 404 McKinley. The items taken from the room established that defendant was receiving mail at that address as recently as one month prior to the date of the search. Although there was uncontradicted testimony that defendant resided with AI Rogers on July 11 and that defendant no longer had a key to the upstairs bedroom at 404 McKinley, both Rogers and Jessie Hawkins testified that defendant had returned to the premises on one or more occasions to pick up clothes. Moreover, the presence of defendant’s fingerprint on one of the paper bindles is sufficient to establish both his knowledge of and control over the cocaine.

The presence of the fingerprint distinguishes this case from the cases which defendant cites. (See People v. Tomasello (1988), 166 Ill. App. 3d 684; People v. Roundtree (1985), 135 Ill. App. 3d 1075; People v. Gore (1983), 115 Ill. App. 3d 1054.) In those cases, convictions were reversed because the State failed to establish the necessary knowledge and control of the narcotics by defendants. However, in none of those cases was defendant’s fingerprint found on the package containing the drugs.

Defendant contends, however, that the mere presence of his fingerprint was insufficient to establish his constructive possession of the cocaine and cites People v. Rhodes (1981), 85 HI. 2d 241, and People v. Poole (1981), 99 Ill. App. 3d 939. Defendant contends that the State failed to exclude the possibility that the fingerprint was impressed on the paper under circumstances which would not give rise to an inference of knowledge and control. Poole, for example, stated that “when it is impossible to determine when a fingerprint was impressed, and when it is possible that the print might have been impressed at a time unrelated to the offense, a reasonable doubt exists as to the defendant’s guilt.” (99 Ill. App. 3d at 942.) Poole in turn cited Rhodes.

However, the supreme court has rejected the reasonable hypothesis of innocence test in cases based on circumstantial evidence. (People v. Pintos (1989), 133 Ill. 2d 286, 291.) Pintos specifically cited Rhodes as an example of a case where this test was no longer appropriate. Thus, the State was not required to exclude every reasonable hypothesis of innocence, and the trial court, as the trier of fact, could give the evidence its natural weight and draw reasonable inferences from it. Defendant invites us to indulge in speculation regarding how his fingerprint might have been impressed on the cocaine package. However, he failed to present any evidence tending to show that it could have been placed there under innocent circumstances. Cf. People v. Woods (1992), 225 Ill. App. 3d 988, 995 (defendant failed to present evidence that his fingerprint on broken window could have been placed there at a time other than the burglary).

Moreover, as the State points out, Rhodes and Poole involved the offenses of burglary and home invasion, which necessarily take place at a particular moment. Conversely possession is an ongoing offense. The State need only prove that defendant possessed the cocaine at some time during the limitations period.

For the foregoing reasons, defendant’s convictions are affirmed.

Affirmed.

UNVERZAGT and WOODVARD, JJ., concur.


author: JUSTICE QUETSCH

text:
    JOSEPH P. SALADINO et al., Plaintiffs-Appellants, v. TEAM CHEVROLET, INC., Defendant (Ryan Warranty Services, Inc., Defendant-Appellee; General Motors Acceptance Corporation, Defendant).
    Second District
    No. 2 — 92—0578
    Opinion filed April 2, 1993.

      James R. Sullivan, of Oak Brook (James Bryan Sullivan, of counsel), for appellants.
    John C. Bartler, of McKenna, Storer, Rowe, White & Farrug, of Wheaton (Daniel E. O’Brien, of counsel), for appellee.
   JUSTICE QUETSCH

delivered the opinion of the court:

Plaintiffs, Joseph and Connie Saladino, brought suit against defendants, Team Chevrolet, Inc. (Team Chevrolet), Ryan Warranty Services, Inc. (Ryan), and General Motors Acceptance Corporation (GMAC), for breach of express warranty and breach of implied warranty under the Magnuson-Moss Act (15 U.S.C.A. §2301 et seq. (West 1982)), common-law fraud, and fraud and deceptive practices under the Consumer Fraud and Deceptive Business Practices Act (111. Rev. Stat. 1991, ch. 121V2, par. 261 et seq.). Plaintiffs appeal from the trial court order granting summary judgment in favor of defendant Ryan Warranty Services. We affirm.

On August 28, 1989, plaintiffs visited Team Chevrolet’s used car lot to examine a used 1979 Chevrolet Corvette. Accompanied by Ed Maniurka, one of Team Chevrolet’s used car salesmen, they drove the car to the auto shop, where Joseph Saladino is employed, to examine it. Joe looked under the hood and put the car up on the rack, at which time he discovered an oil leak. When Joe showed Ed Maniurka the leak, Ed stated, “[T]here’s a warranty that will cover that.” He informed Mr. and Mrs. Saladino that a “good one” would cost $500 extra.

They returned to Ed’s office at Team Chevrolet where Ed showed Joe and Connie (the Saladinos) a brochure entitled, “Extended Used Car Protection Select Car Coverage, Administered by: Ryan Warranty Services, Inc.” After reaching an agreement as to the purchase price of the vehicle, Jim Foley, another salesman, presented a form to Joe and Connie entitled, “Used Vehicle Mechanical Repair Agreement.”

The name “Ryan Warranty Services, Inc.,” appeared at the top of the form. Joseph Saladino was listed as the customer, Team Chevrolet was listed as the dealer, and the coverage under the agreement was to be for 12 months from the agreement date or when 12,000 additional miles were registered on the odometer, whichever occurred first. The agreement date was listed as August 28, 1989. The odometer reading was listed as 36,706 miles. The agreement provided space for the signatures of the customer and the dealer’s representative. Joseph Saladino signed the agreement as customer, and J. Foley signed as dealer’s representative.

The agreement states: “This form describes the protection you will have under your Mechanical Repair Agreement. In return for payment by you of the Agreement Charge and subject to all the terms of this Agreement, we agree with you as follows ***.” (Emphasis in original.) The terms “you” and “your” are defined as meaning the customer. The terms “we,” “us,” or “our” are defined as meaning the dealer issuing the agreement. The agreement sets forth the specific parts covered. It excludes costs covered by any warranty of the manufacturer, State-required dealer warranty or repairer’s guarantee.

Plaintiffs allege Jim Foley told them the agreement was a written warranty. Plaintiffs claim they would not have purchased the car without a warranty.

Subsequent to purchase, plaintiffs experienced numerous problems with the automobile. A few weeks after the purchase, Joe called Jim Foley to tell him that he wanted to get some of the problems repaired. Plaintiffs allege Jim Foley told them they would have to wait until they received the paper work in the mail from the warranty company. Late in October 1989, Joe informed Jim Foley that he had not yet received the paper work. Jim Foley allegedly responded that plaintiffs should “give it a while longer, you should be getting something in the mail.”

Plaintiffs claim they received a letter from Ryan Warranty Services toward the end of December 1989. That letter states:

“Ryan Warranty Services, Inc. is the administrator for certain mechanical repair agreements sold by Team Chevrolet, Inc. Please be advised that the above referenced agreement was not accepted. The agreement is not eligible for coverage because coverage months/miles are not valid based on vehicle year and/ or odometer mileage.
Since your dealership may be able to resolve this matter, we would suggest you contact them as soon as possible.
We appreciate your business and thank you for your cooperation.”

After receiving this letter, Connie contacted Jim Foley. He informed her there was no warranty on the car. Connie informed Joe of her conversation with Jim Foley. Joe then called Jim to ask why there was no warranty. Jim informed Joe that the car was too old. Joe asked if he was going to get a refund. Jim responded that Joe would not get a refund, but to “keep making the bigger payments and you’ll have the car paid off sooner.” Joe stated in his deposition that he believed this meant they would credit his account with GMAC so that he would have the car paid off sooner.

GMAC credited plaintiffs’ account $699.35 including a credit for the finance charge plaintiffs would have paid on the $500 service contract. Plaintiffs subsequently received a new payment booklet with reduced monthly payments. Plaintiffs ceased making payments to GMAC.

Plaintiffs filed suit against Team Chevrolet, Ryan Warranty Services and GMAC. Ryan filed a motion for summary judgment on November 2, 1991. Subsequently, plaintiffs filed a motion to compel requesting that Michael McCay, legal liaison for Ryan, be compelled to answer certain questions posed to him by plaintiffs’ attorney during his discovery deposition.

At the hearing on Ryan’s motion for summary judgment, plaintiffs argued summary judgment was not appropriate because there were a number of factual disputes in the case. Plaintiffs asserted there was a dispute over whether the agreement was a warranty and whether there was a rescission. Plaintiffs’ attorney stated:

“So, our position is that summary judgment isn’t appropriate for those reasons, as well as the fact that discovery is ongoing; that we have had depositions; that answers to questions were— were denied us based on the advice of counsel. So not only do we have depositions out there that they want to do, but the depositions that we have done, there have been some questions that we have asked that were not answered.”

After hearing argument, the court found that the document submitted was a repair contract, not a warranty, and that although representations were made to plaintiffs that the document was a warranty, those representations were not made by employees of Ryan. The court concluded, as a matter of law, there was no breach of express or implied warranty or fraud as to Ryan and dismissed the action against Ryan with prejudice. In its order, the trial court found there was no just reason to delay the enforcement of its order pursuant to Supreme Court Rule 304(a) (134 111. 2d R. 304(a)). Plaintiffs timely appeal.

As a preliminary matter, we question the propriety of the use of a motion for summary judgment under the circumstances of this case. A motion for summary judgment is to be used when the pleader “ ‘assumes that a cause of action has been stated and proceeds to determine whether there are any material issues of fact to be tried.’ ” (Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 190, quoting Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406.) A section 2 — 615 motion to strike and dismiss is used when a party challenges whether a pleading is legally valid or sustainable, i.e., whether even if all the facts alleged by the pleader are true, the pleader has a valid cause of action or defense. Delgatto, 131 Ill. 2d at 189-90.

We question whether Ryan should have proceeded with a motion to strike and dismiss plaintiffs’ cause of action rather than a motion for summary judgment. However, because the parties presented it at the trial level as a motion for summary judgment, and the trial court decided it as such, that is the motion we address on appeal. See Hallmark Insurance Co. v. Chicago Transit Authority (1989), 179 Ill. App. 3d 260.

A trial court should grant summary judgment where 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.” (111. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c).) Although the use of a summary judgment procedure is encouraged as an aid to the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271.) Moreover, in determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent. Loyola Academy, 146 Ill. 2d at 271.

On appeal, plaintiffs contend that an issue of fact exists regarding apparent agency on the part of Team Chevrolet’s employees. Plaintiffs argue that because Ryan’s name appears on the brochure shown to plaintiffs before they purchased the automobile and on the agreement itself, plaintiffs believed that Team Chevrolet’s salesman, Jim Foley, had the authority to represent Ryan. However, plaintiffs did not allege apparent authority in their pleadings, nor did they raise this theory at the trial level. The theory upon which a case is tried in the lower court cannot be changed on review. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147; Barkei v. Delnor Hospital (1990), 207 Ill. App. 3d 255, 263.) Accordingly, this issue is waived for the purposes of this appeal.

Plaintiffs also contend on appeal that the trial court erred in finding that the agreement was not a warranty. We disagree. Construing a contract is a matter of law suitable for summary judgment. (Continental Mobile Telephone Co. v. Chicago SMS A Ltd. Partnership (1992), 225 Ill. App. 3d 317, 322.) There is a disputed fact precluding summary judgment only when the material writing contains an ambiguity which requires the admission of extrinsic evidence. Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d at 272.

The agreement at issue in the present case is clearly not a warranty. The agreement is entitled “Used Vehicle Mechanical Repair Agreement.” It does not affirm the quality or workmanship of the automobile, nor does it warrant against defects. Rather, the agreement, by its own terms, is an offer to repair certain defects that may occur within a certain time period or number of miles, which defects are not covered by a manufacturer’s or other warranty. In fact, plaintiffs admit in their pleadings that the agreement is not a warranty but rather a repair service agreement. In count IV of their complaint, plaintiffs state: “In truth and in fact the ‘warranty’ was nothing more than an offer by plaintiffs to enter into a ‘service agreement’ with Defendant, Ryan Warranty Services, Inc. ***.”

Moreover, the parties to the agreement are clearly set forth as the dealer and the customer. The promises contained in the agreement are between the dealer and the customer. Ryan is merely the administrator of the agreement.

Counts I and II of plaintiffs’ complaint alleged a breach of express warranty and a breach of implied warranty under the Magnuson-Moss Act (15 U.S.C.A. §2301 et seq. (West 1982)). The Magnuson-Moss Act defines a “written warranty” as:

“(A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or
(B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking,
which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.” 15 U.S.C.A. §2301(6) (West 1982).

An “implied warranty” is defined as “an implied warranty arising under State law *** in connection with the sale by a supplier of a consumer product.” (15 U.S.C.A. §2301(7) (West 1982).) The agreement at issue does not come within either definition.

In fact, the Magnuson-Moss Act defines a “service contract” as “a contract in writing to perform, over a fixed period of time or for a specified duration, services relating to the maintenance or repair (or both) of a consumer product.” (15 U.S.C.A. §2301(8) (West 1982).) Thus, we conclude the trial court was correct in finding that the agreement at issue was a service contract and not a warranty and in granting summary judgment in Ryan’s favor with regard to counts I and II alleging breach of express and implied warranty.

The last two counts of plaintiffs’ complaint, counts IV and V, allege common-law fraud and consumer fraud under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (111. Rev. Stat. 1991, ch. 121V2, par. 261 et seq.). Plaintiffs allege their purchase of the automobile and the warranty was induced by false representations made by defendants.

To prevail in a cause of action for common-law fraud, a plaintiff must prove: (1) that the defendant made a statement; (2) of a material nature as opposed to an opinion; (3) that was untrue; (4) that was known by the person making it to be untrue, believed by him to be untrue, or made in culpable ignorance of its truth or falsity; (5) that was relied upon by the victim to his detriment; (6) made for the purpose of inducing reliance; and (7) such that the victim’s reliance led to his injury. (Richard/Allen/Winter; Ltd. v. Waldorf (1987), 156 Ill. App. 3d 717, 721.) Similarly, in an action under the Consumer Fraud Act, a plaintiff must prove defendants made a false statement of material fact in the conduct of any trade or commerce with the intent to induce others to rely thereon. (People ex rel. Hartigan v. E &E Hauling, Inc. (1991), 218 Ill. App. 3d 28, 40; see Ill. Rev. Stat. 1991, ch. 121V2, par. 262.) In addition, a Consumer Fraud Act complaint must be pleaded with the same specificity as an action for common-law fraud. People ex rel. Hartigan v. E & E Hauling, Inc., 218 Ill. App. 3d at 40.

Plaintiffs’ complaint merely alleges that the defendants made statements that were false and untrue. Plaintiffs fail to allege with specificity any particular statements made by Ryan which were false and untrue. In addition, our review of the plaintiffs’ testimony during their depositions reveals the allegedly false representations were made by employees of Team Chevrolet. Plaintiffs contend on appeal that Ryan clothed Team Chevrolet salesmen with apparent authority to represent and bind Ryan. However, as we previously stated, plaintiffs failed to raise this theory of recovery at the trial level, and, as such, it is waived on appeal. Thus, we conclude the trial court was correct in granting summary judgment in favor of Ryan as to counts IV and V as well.

Plaintiffs contend the trial court erred in granting summary judgment before plaintiffs completed discovery. Plaintiffs claim most of the material witnesses to the transaction had jnot yet been deposed at the time of the motion for summary judgment.

A party may not resist a motion for summary judgment simply by identifying potential trial witnesses and then failing to determine what their opinions are or what their testimony might be. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 299.) At the hearing on Ryan’s motion for summary judgment, plaintiffs argued summary judgment was not appropriate at the time because discovery was ongoing. However, plaintiffs failed to inform the trial court of the names and probable testimony of any witnesses who had not yet been deposed. In addition, plaintiffs failed to do so on appeal.

Supreme Court Rule 191(b) permits a party to file an affidavit in opposition to a motion for summary judgment stating that material facts which ought to appear in the affidavit are known only to persons whose affidavits affiant is unable to procure. (134 Ill. 2d 191(b).) The affidavit is to name the persons and show why the affidavits cannot be procured and what the affiant believes they would testify to if sworn. (134 Ill. 2d R. 191(b).) Plaintiffs did not comply with Rule 191(b). It was plaintiffs’ duty to present the names and probable testimony of the potential witnesses to the trial court. (See Addison v. Whittenberg, 124 Ill. 2d at 299.) Consequently, we conclude the trial court did not err in denying plaintiffs’ “request” for further discovery.

Lastly, we note that we lack the jurisdiction to determine the propriety of the trial court’s denial of plaintiffs’ motion to compel because the trial court’s determination is not a “final and appealable order.” (See People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171 (in general, discovery orders are not final and appealable under the supreme court rules); see also Tidwell v. Smith (1960), 27 Ill. App. 2d 63, 74.) The fact that the trial court makes an express finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) does not necessarily mean that the order was final and appealable. (Viirre v. Zayre Stores, Inc. (1991), 212 Ill. App. 3d 505, 511.) A final and appealable order is one which terminates the litigation between parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate part thereof. Viirre, 212 Ill. App. 3d at 512.

The portion of the trial court’s order granting summary judgment in favor of Ryan is final and appealable because it terminates the litigation with regard to Ryan. However, the portion of the order denying plaintiffs’ motion to compel does not terminate the litigation, either in whole or in part, with regard to Ryan or any of the remaining defendants. Although it is questionable whether the trial court intended to include its ruling on plaintiffs’ motion to compel within the scope of its Rule 304(a) finding in the first instance, we conclude, regardless of the trial court’s Rule 304(a) finding, that portion of the order is not final and appealable.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSE SHEPHERD, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 91—0546
    Opinion filed March 11, 1993.
    James R. Epstein, of Epstein, Zaideman & Esrig, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Linda Wo-loshin, and John L. Fioti, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a bench trial in the circuit court of Cook County, defendant, Jesse Shepherd, was convicted of first degree murder (111. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(1)) and was sentenced to a 20-year term in the Illinois Department of Corrections.

On appeal, defendant contends (1) he was denied effective assistance of counsel in violation of the sixth and fourteenth amendments; (2) defense counsel was under an impermissible conflict of interest; and (3) the State failed to prove him guilty beyond a reasonable doubt.

We affirm.

The following facts were adduced at trial. Earnest James testified that while in his home on May, 29, 1989, he observed the victim, Cleavon Dean, running into his backyard yelling that someone was shooting at him. He stated that Martez Shepherd was running behind Dean with his arm straight out and firing a weapon at him. After Martez fired four or five shots at Dean, he grabbed him and they began to “tussle.” Dean subsequently slumped and fell onto a concrete slab. Martez then ran through James’ yard, jumped over a fence, and fled down an alley.

Antoinette Washington, who lives in the house next to Earnest James, testified that she heard a couple of gunshots, looked out of her window and saw Dean lying facedown in the yard next door to her home. She also observed Martez running down an alley and then saw him riding in a car in front of her house. She identified defendant as the driver of that car.

Officer Carol Collins testified that she and her partner, police officer Francis Saglifa, received a dispatch regarding a vehicle wanted in a homicide investigation. The officers spotted the car and followed it for approximately four blocks. Officer Collins activated her lights and the car stopped. She instructed the occupants of the vehicle to open their doors and exit the vehicle. She testified that the two men who exited the vehicle were defendant and Martez. Officer Collins further stated that she looked in the glove compartment of the vehicle and found a .38-caliber automatic pistol.

Kimberly Cochran testified that on May 29, 1989, she, defendant, and Martez were sitting in front of her house having a conversation when Cleavon Dean and two other men came out of another house. Martez and Dean began to fight and defendant attempted to break up the fight. Martez then went to defendant’s car in search of defendant’s shotgun. Defendant stopped Martez from obtaining the shotgun and they got into the car and left.

Detective William Marley testified that according to defendant’s statements Trinell Ladd supplied defendant and Martez with two pistols — one a .38-caliber automatic which Ladd gave to defendant, and another which he gave to Martez. As defendant and Martez drove through the area, Martez saw the men he had fought with earlier and jumped out of the car. Defendant drove to the end of the block and exited the car carrying the .38-caliber automatic pistol. He fired one shot at the men. He then got in the car and drove around looking for Martez. Martez appeared, jumped through the window of the car, and told defendant: “I shot somebody.” Defendant asked Martez if he killed anyone and Martez said he “didn’t know.” Defendant told Detective Marley that the .38-caliber automatic pistol he fired at the men was the one police recovered from his glove compartment.

Defendant denied the facts to which Detective Marley testified. He stated that he saw Martez get a gun from a friend. Defendant then took the gun from Martez and placed it in the glove compartment. While defendant spoke with Martez’s friend, Martez left and ran through an alley. Defendant did not know Martez had a weapon. While defendant drove around the area searching for Martez, Martez jumped through the window of the car. Defendant then drove around the block and saw “a lot” of police cars. Later, when defendant learned of the shooting, he asked Martez whether he had shot somebody. Martez said he “didn’t know.”

Defendant stated that after the shooting, Martez put the .38-cali-ber gun that was in defendant’s glove compartment to his head, and it appeared as if he was going to kill himself. Defendant told him to put the gun down and Martez put it back into the glove compartment. Defendant also stated that, contrary to police contentions, he never fired a shot.

Initially, both defendant and Martez were represented by the same counsel. On November 17, 1989, counsel limited his representation to defendant because he believed it necessary to call Martez as a witness at defendant’s trial. Defendant’s trial commenced on June 11, 1990, and the next day, he was found guilty of first degree murder. Martez subsequently pleaded guilty to the same offense.

On December 10, 1990, defendant’s motion for a new trial was heard. Defendant preliminarily filed a motion for substitution of counsel from bis trial counsel. The first witness called at the hearing was Earnest Warner, a firearms examiner for the Chicago police department. He stated that his specialty was the microscopic examination of firearms to determine their origin. The court found him to be a firearms expert.

Warner examined the .38-caliber weapon found in defendant’s glove compartment, two .22-caliber bullets taken from the victim’s body, and a .38-caliber discharged cartridge case recovered at the scene. He testified that, contrary to the stipulation entered into by defense counsel, neither of the .22-caliber bullets was fired from the .38-caliber weapon found in defendant’s glove compartment.

He also test-fired the .38-caliber gun and compared the test-fired cartridge case with the discharged cartridge case found at the scene. Based on the reproduction of the microscopic characteristics, Warner stated that the characteristics found on the test cartridge case were present on the discharged cartridge case. He concluded that both cartridges were fired from the .38-caliber weapon recovered from defendant’s glove compartment.

After arguments on both sides, the trial court denied defendant’s motion for a new trial and he was sentenced to 20 years in the Illinois Department of Corrections. Defendant appeals.

Initially, defendant contends he was denied effective assistance of counsel. In People v. Albanese (1984), 104 Ill. 2d 504, our supreme court adopted the standard promulgated by Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, which sets forth the requisite showing for an ineffective assistance of counsel assertion. First, defendant must establish that counsel’s representation was so egregious that it fell below the “counsel” guaranteed by the sixth amendment. Second, defendant must demonstrate that counsel's errors prejudiced him, denying him a fair trial and casting doubt on the accuracy of the verdict. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693,104 S. Ct. at 2064.

Relative to this issue, defendant argues that trial counsel erred in failing to call Martez as a witness because Martez’ testimony would have exculpated him. However, defendant has not shown trial counsel’s performance to be so defective as to satisfy the first prong of Strickland. Defendant has also failed to demonstrate prejudice resulting from Martez’s failure to testify. He simply postulates that Martez’s testimony would have demonstrated his lack of involvement in the shooting and that trial counsel’s decision not to call Martez as a witness was error.

The record does not reveal that the testimony of Martez would have exonerated defendant. Defendant was convicted of murder based on an accountability theory. Therefore, even if Martez had exculpated defendant from the actual shooting, his testimony would not have erased defendant’s accountability. We believe trial counsel’s decision not to call Martez as a witness was not erroneous and certainly fails to constitute a deficiency of constitutional proportions as envisioned in Strickland. Further, even assuming inadequate representation, it is defendant’s onus to plainly demonstrate that trial counsel’s deficiency prejudiced him. (People v. West (1986), 142 Ill. App. 3d 876, 878; People v. Rodriguez (1983), 117 Ill. App. 3d 761, 764.) Defendant has established neither a deficiency nor resultant prejudice.

Secondly, relative to the ineffective assistance issue, defendant contends trial counsel’s stipulation that the bullet recovered from the victim’s body could have been fired from defendant’s gun was error. Though this incorrect stipulation may constitute a deficiency, defendant has failed to fulfill the second component of Strickland, i.e., prejudice resulting from the deficiency. The record evinces that the trial judge carefully enumerated the evidence used in his arrival at a guilty verdict and he clearly did not consider the incorrect firearms stipulation. The stipulation was therefore nonprejudicial and accordingly harmless.

Defendant also asserts other errors and omissions which he argues constituted ineffective assistance of counsel. We decline to conduct an individual review of each alleged error, as the record patently establishes the absence of a prejudicially tainted outcome resulting from any of his assertions.

Defendant secondly argues that trial counsel’s representation was obstructed by an impermissible conflict of interest. Defendant and Martez were initially represented by the same counsel, but this counsel withdrew from representing Martez six months before trial because he believed it necessary to call Martez as a witness at defendant’s trial.

Defendant specifically posits a conflict of interest based on his trial counsel’s functioning as a de facto representative for Martez even though his trial counsel withdrew from representing Martez. This conflict, defendant contends, influenced trial counsel not to call Martez as a witness and resultantly prejudiced him. Defendant, however, neither informed the court of this behavior, nor did he express dissatisfaction with trial counsel’s representation. He also never requested a substitution of counsel.

“[I]f the trial court is not apprised of the potential conflict, then reversal of the conviction will only be had upon a showing that ‘an actual conflict of interest adversely affected’ counsel’s performance.” (People v. Spreitzer (1988), 123 Ill. 2d 1, 18, quoting Cuyler v. Sullivan (1980), 446 U.S. 335, 350, 64 L. Ed. 2d 333, 348, 100 S. Ct. 1708, 1719.) There is no evidence that trial counsel labored under inconsistent obligations during trial nor is there an indication of a detrimental effect on defendant.

“[D]efendant must point to some specific defect in his counsel’s strategy, tactics, or decision making attributable to the conflict.” (S'preitzer, 123 Ill. 2d at 18.) Defendant’s solely contended defect is trial counsel’s failure to call Martez as a witness. However, we fail to see the nexus between the failure to call Martez and the alleged conflict of interest. Martez was entirely represented by alternate counsel who commenced his representation six months before trial. The record indicates a clear distinction between the representatives of defendant and Martez. This individual representation was also noted by the trial court. Trial counsel’s decision not to call Martez was therefore not attributable to a conflict of interest as no conflict existed.

Finally, defendant asserts that he was not found guilty beyond a reasonable doubt. The appropriate standard of review of this issue was established by Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781, and adopted by our supreme court in People v. Young’ (1989), 128 Ill. 2d 1. “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) (Young, 128 Ill. 2d at 49, quoting Jackson, 443 U.S. at 318-19, 61 L. Ed. 2d at 573-74, 99 S. Ct. at 2788-89.) A thorough perusal of the record supports the finding of defendant’s guilt beyond a reasonable doubt.

For the aforementioned reasons, we affirm the judgment of the circuit court.

Affirmed.

CAHILL and HOFFMAN, JJ., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE ex rel. THE VILLAGE OF GRAYSLAKE, Plaintiff and Counterdefendant-Appellant, v. THE VILLAGE OF ROUND LAKE BEACH, Defendant and Counterplaintiff-Appellee.
    Second District
    No. 2 — 92—0368
    Opinion filed March 5, 1993.

      John C. Baumgartner and William S. Churchill, both of Churchill, Baumgartner & Phillips, Ltd., of Grayslake, for appellant.
    John M. Mullen, of Libertyville, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff and counterdefendant, the Village of Grayslake, appeals from the orders of summary judgment in favor of the defendant and counterplaintiff, the Village of Round Lake Beach. The central issue on appeal is whether Grayslake’s voluntary annexation of the land in question had priority over Round Lake Beach’s involuntary annexation of the same property. We focus on the sufficiency of the annexation petitions filed by the landowners in question (the petitioners) with Grayslake.

After it completed its proceedings to annex the property at issue here, Grayslake initiated this action in quo warranto (111. Rev. Stat. 1991, ch. 110, par. 18 — 101 et seq.). It sought a declaration that its annexation had priority and that Round Lake Beach’s annexation of the same property was null and void. Round Lake Beach filed a counterclaim in quo warranto to declare its annexation valid. The annexations concerned two property parcels known as the Olson property and the Francke property.

The underlying facts in this case are not in dispute. Only their legal consequence is at issue. Grayslake proceeded with a voluntary annexation petition under section 7 — 1—8 of the Illinois Municipal Code (the Code) (111. Rev. Stat. 1989, ch. 24, par. 7 — 1—8). The voluntary proceedings, which led to Grayslake’s enactment of annexation ordinances, were formally initiated when the petitioners, landowners and electors associated with the Francke and Olson properties, filed annexation petitions with Grayslake. (People ex rel. Village of North-brook v. Village of Glenview (1989), 194 Ill. App. 3d 560, 566.) The Francke petition was filed on October 8, 1990. The Olson petition was filed on October 15.

Round Lake Beach undertook to annex the property in involuntary proceedings under section 7 — 1—13 of the Code (111. Rev. Stat. 1989, ch. 24, par. 7 — 1—13). It published the requisite preannexation notices and formally initiated the involuntary annexation when it passed its ordinances annexing the Francke property on October 9, 1990, and the Olson property on October 16. See Village of Mundelein v. Village of Long Grove (1991), 219 Ill. App. 3d 853, 859.

In its quo warranto complaint, to support its claim of annexation priority, Grayslake relied on the fact that the petitioners had filed their annexation petitions with Grayslake before Round Lake Beach passed its annexation ordinances. (See Village of Mundelein v. Village of Long Grove (1991), 219 Ill. App. 3d 853, 859.) On December 2, 1991, Round Lake Beach filed a motion for summary judgment in the quo warranto cause. In that motion, it argued that Grayslake did not gain annexation priority through the landowners’ petitions for annexation. According to the motion, the petitions were void and could not confer priority because the signators had not signed under oath so that the petitions failed to comply with the requirements of section 7 — 1—8 of the Code.

Adjacent to each of the 10 signatures on the Francke petition is the jurat “Subscribed and sworn to before me the 7th day of October, 1990,” with the signature and seal of Doris D. Manson, a notary public. Adjacent to each of the four signatures on the Olson petition was the jurat “Subscribed and sworn to before me this 15th day of October, 1990,” with the signature of Kathleen J. Flynn. At the bottom of the page is the seal of Flynn, a notary public.

Round Lake Beach deposed the petitioners, who attested that they signed the petitions at home and out of the presence of the notary; several deponents did not even know the notary. The petitioners stated that they were pursuing an annexation agreement with Grays-lake when Round Lake Beach served them with notice of its annexation. After they received Round Lake Beach’s notice, they signed their petitions for annexation to Grayslake and gave them to their attorney, intending that the petitions be filed with Grayslake before Round Lake Beach enacted annexation ordinances.

In response to Round Lake Beach’s motion for summary judgment, Grayslake submitted the petitioners’ affidavits that although they signed the petitions at home and out of the presence of a notary, they believed that they were signing the petitions under oath and attesting to their accuracy. Each was aware that his signature would be notarized and believed that he was both obligated to be truthful and subject to charges of perjury.

The trial court granted Round Lake Beach’s motion for summary judgment against Grayslake’s claim for annexation. The trial court also granted summary judgment to Round Lake Beach on its counterclaim and approved Round Lake Beach’s annexation of both parcels. Grayslake brought this appeal. It argues, basically, that the petitioners’ petitions for annexation to Grayslake were valid to give priority to Grayslake’s annexation of the property.

The legislature alone has the authority to allow or require the alteration of municipal boundaries by annexation. (In re Petition to Annex Certain Territory (1991), 144 Ill. 2d 353, 361-62.) The court’s function is to determine whether the petitioners for annexation have complied with the procedures established by the legislature. (144 Ill. 2d at 361.) A petition for annexation must strictly comply with statutory requirements. (144 Ill. 2d at 361-62.) In ruling upon a petition for annexation, the court lacks any discretion to determine what constitutes a sufficient petition for annexation; rather, the court decides only the sufficiency of the petition in accordance with the statutory requirements and addresses the questions relating to the execution of the statute. 144 Ill. 2d at 361.

Section 7 — 1—8 of the Code, the statute which Round Lake Beach claims was not complied with here, provides:

“Any territory which is not within the corporate limits of any municipality but which is contiguous to a municipality at the time of annexation and which territory has *** electors residing therein, may be annexed to the municipality in the following manner: a written petition signed by the owners of record of all land within such territory and by at least 51% of the electors residing therein shall be filed with the municipal clerk. The petition shall request annexation and shall state that *** at least 51% of such electors residing therein join the petition *** and shall he under oath.” (Emphasis added.) (111. Rev. Stat. 1989, ch. 24, par. 7 — 1—8.)

Because of the nature of our analysis, we need not discuss Round Lake Beach’s argument that the petitions here did not satisfy the “under oath” requirement of section 7 — 1—8. Rather, we proceed with analysis of whether the petitions, despite presumed statutory insufficiency, were sufficient to create annexation priority. That analysis focuses on whether the “under oath” requirement was directory, as Grayslake argues, or mandatory, as Round Lake Beach argues.

Round Lake Beach contends initially that Grayslake waived any argument that the “under oath” requirement is directory rather than mandatory, for failure to raise it in the trial court. We note that in the trial court Grayslake both argued that it substantially complied with section 7 — 1—8 and cited case law that discusses directory rules. We do not find waiver. See also Welch v. Johnson (1992), 147 Ill. 2d 40, 48.

In its argument, Grayslake contends that the deficiencies in the procedure followed to acquire the petitioners’ signatures did not make the petitions invalid. It also contends that the court should consider the wishes of the petitioners, all of whom requested annexation to Grayslake instead of Round Lake Beach. No question is raised regarding the general qualification of each village to annex the land, because the parcels are contiguous to both villages. There is no evidence implying that the signatures are unauthorized or forged. Grayslake contends that justice and the purpose of the statutes would not be served if the parcels were to be annexed against the wishes of the residents who attempted in good faith to comply with the statute.

Grayslake notes that the policies underlying sections 7 — 1—8 and 7 — 1—13 support the petitioners. In that regard, it cites to North-brook v. Glenview, wherein the court observed:

“We note generally that annexation statutes are usually construed liberally in favor of the public. (2 E. McQuillin, Municipal Corporations §7.14, at 422 (3d ed. 1988).) Moreover, compulsory incorporation is not favored, and therefore the question of annexation is usually referred to the inhabitants. (See 1 E. McQuillin, Municipal Corporations §3.16, at 288-89 (3d ed. 1987).) There is strong public policy that the land owners [sic] of the property to be annexed have the ultimate decision.” People ex rel. Village of Northbrook v. Village of Glenview (1989), 194 Ill. App. 3d 560, 565-66.

Additionally, Grayslake points to the decision in People ex rel. City of Leland Grove v. City of Springfield (1988), 166 Ill. App. 3d 943 (Leland Grove T). In Leland Grove I, the court observed the statutory requirement that an involuntary annexation ordinance be preceded by 10 days’ notice (111. Rev. Stat. 1989, ch. 24, par. 7 — 1—13) and that this notice requirement is intended to protect the property owner by giving him time to file a voluntary petition with another contiguous municipality. (Leland Grove, 166 Ill. App. 3d at 948.) The Leland Grove I court concluded that fundamental fairness dictates that the property owner must be allowed to choose among the several municipalities vested with annexation jurisdiction. 166 Ill. App. 3d at 948.

Grayslake also argues that the technicalities of annexation statutes have often been overlooked in the interests of justice. With reference to several case law examples, it contends that the statutory language at issue here was directory rather than mandatory and that the petitioners’ failure to comply strictly with the oath provision of section 7 — 1—8 was not fatal to the petitions.

In Northbrook v. Glenview, Glenview served the Northbrook trustees with personal delivery rather than with certified mail as specified by the statute. The court held that the purpose of the statute was satisfied. (Northbrook, 194 Ill. App. 3d at 564.) In addition, the affidavit of the Glenview village clerk on the annexation notice was not notarized prior to its recordation. The court held that since the village clerk had the power to administer oaths and was making an official act, the requirements of the statute were sufficiently met despite the absence of a notarization. 194 Ill. App. 3d at 564.

In People ex rel. City of Leland Grove v. City of Springfield (1990), 193 Ill. App. 3d 1022 (Leland Grove II), Leland Grove argued that the petition was not sworn under oath because the elector did not raise his right hand and swear to the statement as provided in section 3 of the Oaths and Affirmations Act (111. Rev. Stat. 1989, ch. 101, par. 3). (193 Ill. App. 3d at 1037.) The court held that because the elector had glanced at the petition, which included a statement that the signer had read the petition for annexation and that it was true, the elector understood that he was signing under oath. 193 Ill. App. 3d at 1038.

Similarly, in In re Petition for Removal of Rice (1962), 35 Ill. App. 2d 79, the court held that the petitions there would not be rejected based on the notary’s failure to administer an oath to the affiants. It noted that the evidence showed that in the case of every signature there, the affiant approached the notary and asked for official action, to “notarize” his signature. (35 Ill. App. 2d at 91.) It also noted that in every case the notary asked the affiant to sign the affidavit and that when asked, the affiant affirmed the truth of the affidavit’s contents. (35 Ill. App. 3d at 91.) In accepting the petitions there, the court adopted a rule which did not adhere to the strict statutory language in question, but which preserved a requirement which included a conscious calling upon an individual to subscribe to the truth; the court called its rule “more realistic and fair.” 35 Ill. App. 2d at 91; see also In re Annexation of Certain Territory to the Village of North Barrington (1972), 8 Ill. App. 3d 50, 51 (the petitioners signed the document intending to sign it under oath).

Round Lake Beach notes that individual statutory annexation requirements have been held mandatory. It cites People ex rel. County of St. Clair v. City of Belleville (1981), 84 Ill. 2d 1. There, the city failed to give the statutory notice to the fire protection district trustees serving the territory in question. The supreme court held that the city had failed to comply with a mandatory requirement in that regard, even though the majority of the trustees were served. Considering that failure and the insufficient content of the notice, the supreme court found that the city’s annexation ordinances were rendered ineffective. (84 Ill. 2d at 8.) The St. Clair County court also found that the annexation map presented by the city included inexcusable inaccuracies. 84 Ill. 2d at 9-10.

To determine whether a statute is mandatory or discretionary, courts look first to the language of the statute as the best indication of legislative intent. (See Pullen v. Mulligan (1990), 138 Ill. 2d 21, 65.) If a statute imposes duties and by express language provides that the omission to perform the duties renders the proceeding void, then courts are bound to construe those provisions as mandatory; in most cases, however, the statute simply provides that certain acts shall be done within a particular time or in a particular manner and does not declare that their performance is essential to the validity of the proceeding; in these cases, the statute is directory. See Pullen v. Mulligan (1990), 138 Ill. 2d 21, 65; see also In re Petition of Voters (1992), 234 Ill. App. 3d 294, 297-98.

We find that the failings in St. Clair County are distinguishable from the one at issue in this case. Actual notice is directly related to due process. (See St. Clair County, 84 Ill. 2d at 8.) Further, a sufficiently accurate annexation map is necessary to avoid ambiguity and give notice both to affected property owners and to the public. (See 84 Ill. 2d at 10.) In contrast, this failing does not raise due process considerations; there is no claim of inadequate notice or ambiguity of intentions . We find that the oath requirement at issue here is designed to secure reliability, order, system, and dispatch in annexation proceedings and that those considerations were satisfied by the Olson and Francke petitions.

The taking of an oath by a notary is a ministerial act. (Cheng v. Illinois (N.D. 111. 1977), 438 F. Supp. 917, 918.) There are no countervailing considerations here which would militate against giving the petitioners their choice of annexation. See, e.g., In re Petition of Voters (1992), 234 111. App. 3d 294, 298 (failure to comply would create extra expenses).

The petitioners here assured that although they signed the petitions at home and out of the presence of a notary, they believed that they were signing the petitions under oath and attesting to their accuracy. Each was aware that his signature would be notarized and believed that he was both obligated to be truthful and subject to charges of perjury. We also note that owners of the Francke and Olson parcels notified Round Lake Beach of their petitions to annex with Grayslake prior to Round Lake Beach’s enactment of its annexation ordinances. We conclude that holding the oath requirement to be mandatory in these circumstances would exalt form over substance and frustrate the statutory purpose of allowing the petitioners their choice of annexation.

Grayslake also contends that the trial court should not have granted Round Lake Beach’s motion for summary judgment. Its first objection is that Round Lake Beach’s ordinance to annex the Olson property included a portion of the Wisconsin Central Limited Railway tracks, which bordered the parcel although Round Lake Beach’s published annexation notice omitted the tracks. Grayslake contends that the annexation ordinance consequently was invalid for failure to comply with the requirements of section 7 — 1—13. (See People ex rel. Village of Buffalo Grove v. Village of Long Grove (1990), 199 Ill. App. 3d 395, 408 (.Long Grove II).) Additionally, Grayslake objects that there was a remaining material issue of fact because Round Lake Beach did not submit a plat showing that the land in the ordinance matched that of the publication. See Purtill v. Hess (1986), 111 Ill. 2d 229, 240; Long Grove II, 199 Ill. App. 3d at 404.

Since we have already determined that the trial court erred when it determined that the Grayslake annexation did not have priority, these issues regarding the effectiveness of Round Lake Beach’s attempt to annex the properties are moot.

Based on the foregoing, we find that the oath requirement of section 7 — 1—8 is directory, that the petitioners substantially complied with it, that their petitions were not invalid, and that those petitions, because they were filed prior to the passage of the Round Lake Beach ordinances, gave the Grayslake annexation priority over the Round Lake Beach annexation. Based on those findings, we reverse the summary judgment entered by the trial court in favor of Round Lake Beach.

For the above reasons, the judgment of the circuit court is reversed in part, and the cause is remanded for further proceedings consistent with this opinion.

Reversed in part and remanded.

WOODWARD and QUETSCH, JJ., concur.


author: JUSTICE BOWMAN PRESIDING JUSTICE INGLIS,

text:
    LEODAN GONZALEZ, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 2 — 92—0108
    Opinion filed March 24, 1993.
    INGLIS, P.J., dissenting.
    Albert J. Salvi and David H. Harris, Jr., both of Albert J. Salvi & Associates, of Waukegan, for appellant.
    Glen E. Amundsen, Mary T. Nagel, and Michael Resis, all of Querrey & Harrow, Ltd., of Waukegan, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Leodan Gonzalez, appeals from an order of the circuit court of Lake County granting summary judgment for defendant, State Farm Mutual Automobile Insurance Company (State Farm), in plaintiff’s declaratory judgment action. The declaratory judgment action was filed alleging that defendant issued plaintiff’s’ parents a policy which afforded plaintiff uninsured motorist coverage for the injuries he suffered while a passenger on a dirt bike. On appeal, plaintiff contends that (1) the dirt bike can be licensed for public road use and thus should be covered by the uninsured motorist clause in the policy, and (2) defendant has not met the burden to deny coverage. We reverse.

On June 11, 1989, plaintiff was a passenger on the backseat of a KX 125 Kawasaki dirt bike. Fifteen-year-old David Dolinar operated the dirt bike in a field behind Hawthorne Mall in Vernon Hills. As they were riding, the front wheel of the bike came off the ground, plaintiff fell from the dirt bike, and was injured.

Plaintiff attempted to obtain coverage under Dolinar’s parents’ homeowner and auto liability policies, but the insurer, State Farm, denied coverage. Since David Dolinar did not have a driver’s license, plaintiff attempted to obtain coverage under his own parents’ uninsured motorist coverage. Plaintiff brought this declaratory judgment action alleging that defendant issued his parents, Maria Quesada and Leonel Gonzalez, policy No. 919 6037-B02-13, which provided plaintiff uninsured motorist coverage for the injuries he suffered while a passenger on the dirt bike. State Farm answered the complaint by denying that plaintiff was entitled to such coverage.

Policy No. 919 6037-B02-13 contains the following exclusion under its uninsured motorist coverage section:

“UNINSURED MOTOR VEHICLE-COVERAGE U
* * *
We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.
* * *
An uninsured motor vehicle does not include a land motor vehicle:
* * *
2. designed for use mainly off public roads, and not able to be licensed for public road use. This does not apply while the vehicle is on public roads.” (Emphasis in original.)

State Farm subsequently moved for summary judgment. In support of its motion, State Farm offered the deposition testimony of David Dolinar. Dolinar testified that on the date of June 11, 1989, he was driving a 1985 KX 125 Kawasaki dirt bike. At the time, he did not have an Illinois driver’s license. On the day of the accident, the KX 125 Kawasaki dirt bike was not licensed for use on the public roads. Dolinar neither applied for a license nor intended to .do so. He did not ride the dirt bike on public roads. To get to the site where he rode it off road, he pushed the bike along the street, and then drove it along a bike path.

Dolinar presented testimony to the effect that the engine on the dirt bike was two stroke, which made it unsuitable for road use, and that it would overheat or explode if driven at a constant 30-mile-per-hour speed. In order to make the bike “street legal,” and thus able to be licensed, he said he would have to replace the suspension, the tires, and add all necessary safety features such as headlights, turn signals, a turn signal lamp, brake lights, a license bracket for holding a vehicle license, and foot pegs. In essence, he concluded, he would have to rebuild the entire vehicle.

Plaintiff responded to the motion for summary judgment and offered the affidavit of Frank Blazevich in support of his response. Bla-zevich’s affidavit stated that he had been selling Harley Davidson motorcycles for 25 years in Waukegan. It declared that the KX 125 Kawasaki dirt bike was an off-road vehicle “which can be with minor modifications driven on public roads, but cannot be driven on highways.” (Emphasis in original.)

After the parties deposed Frank Blazevich, State Farm filed its reply to plaintiff’s response. It offered the deposition testimony of Frank Blazevich and a copy of the certificate of origin for David Do-linar’s KX 125 Kawasaki dirt bike in support of its motion for summary judgment. The certificate of origin provides that the manufacturer built the dirt bike in question for off-highway use in sanctioned closed-course racing events.

During his deposition, Mr. Blazevich revealed that he was one of the owners of a motorcycle dealership, L & M Motors, doing business as “Harley-Davidson, Lake Shore Yamaha” at two locations in Wauke-gan. The record reveals that he has been in the business of selling or repairing motorcycles for 23 to 24 years. He stated that he neither owned a Kawasaki franchise nor had ever had a KX 125 Kawasaki dirt bike licensed for public road use. He added that the manufacturers with which he dealt also made dirt bikes for mainly off-road use. He indicated that he was of the opinion that one could license the KX 125 Kawasaki dirt bike for public road use with some minor modifications such as adding a headlight, a taillight, turn signals, brake lights, a horn, a mirror and a license plate bracket. He added that if one were to drive a “modified” KX 125 Kawasaki dirt bike on the public streets for any length or distance, it would be prudent to change the gear ratio and drive train.

On January 23, 1992, the trial court heard the arguments of both parties, reviewed the memoranda and applicable authorities, and granted defendant’s motion for summary judgment. The court found that plaintiff was not entitled to any of the benefits, protection, or coverage for uninsured motorist benefits under State Farm policy No. 919 6037-B02-13. This appeal was timely filed.

Plaintiff contends that the KX 125 Kawasaki dirt bike can be licensed for public road use and that thus the vehicle is not excluded from coverage under the uninsured motor vehicle clause of the policy. Therefore, the plaintiff argues, the trial court erred in holding that plaintiff is not covered by State Farm insurance policy No. 919 6037-B02-13. Defendant maintains that there is no ambiguity in the phrase “able to be licensed for public road use.” Defendant further asserts that, as plaintiff’s expert admitted, even substantial modification in safety equipment will not make the KX 125 Kawasaki dirt bike able to be driven on all public roads, since it cannot be operated on a 55-mile-per-hour road without modifying the engine. Defendant contends that if we now expand the meaning of the clause in question to include a dirt bike which may be used only on certain roads, that clause will be meaningless because it will be so broad.

Summary judgment is appropriate where “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.” (111. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c); Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233-34; Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 823.) Since it is a drastic means of disposing of litigation, summary judgment should be granted only when the “ ‘right of the moving party is clear and free from doubt.’ ” Logan, 139 111. 2d at 233, quoting Purtill v. Hess (1986), 111 Ill. 2d 223, 240; see also Shull, 223 Ill. App. 3d at 823.

Before turning to the merits of this case, we will consider the appropriate standard of review. We note that in Shull the Appellate Court, Fourth District, addressed the misuse of the abuse of discretion standard in the summary judgment context in some opinions by all the districts of the Illinois Appellate Court. (Shull, 223 Ill. App. 3d at 823-24.) The Appellate Court, Second District, recognizes that inappropriate use of the abuse of discretion standard and follows the fourth district’s analysis in Shull. The entry of summary judgment is not a matter within the discretion of the trial court. (Shull, 223 Ill. App. 3d at 824.) When an appellate court is faced with an appeal dealing only with the propriety of a summary judgment, the de novo standard of review should be applied. (Demos v. National Bank of Greece (1991), 209 Ill. App. 3d 655, 659-60.) The appellate court, like the trial court, determines whether there is a genuine issue of material fact and whether the movant should prevail as a matter of law. Demos, 209 Ill. App. 3d at 659-60.

An insurance policy is a contract and therefore is governed by contract law. (Mammina v. Homeland Insurance Co. (1939), 371 Ill. 555, 558; Allstate Insurance Co. v. Boston Whaler, Inc. (1987), 157 Ill. App. 3d 785, 789.) A trial court must determine initially, as a matter of law, whether the language of a purported contract is ambiguous as to the parties’ intent. (Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 288.) If no ambiguity exists in the writing, the parties’ intent must be derived by the trial court, as a matter of law, exclusively from the writing itself. (Quake, 141 Ill. 2d at 288.) A clause is determined to be ambiguous if it is subject to more than one reasonable interpretation. (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 74.) All doubts and ambiguities are to be resolved in favor of the insured. (United States Fidelity, 144 Ill. 2d at 74.) In order to construe an ambiguity against the insurer, an ambiguity in fact must exist and a court may not distort the contract to create the ambiguity itself. Nationwide Insurance Co. v. Ervin (1967), 87 Ill. App. 2d 432, 435, cited in Allstate Insurance Co. v. Boston Whaler, Inc. (1987), 157 Ill. App. 3d 785, 790, appeal denied (1987), 116 Ill. 2d 547.

In the present case, the record reveals that the trial court stated that it had considered the arguments of counsel, the memoranda, and applicable authorities. According to the record, the issue of the ambiguity or lack thereof of the uninsured motor vehicle exclusion was raised by both parties in the motion for summary judgment and the response to the motion for summary judgment. The trial court came to the conclusion that there were no genuine issues of material fact and that defendant was entitled to judgment in its favor as a matter of law. Although it did not discuss the issue of ambiguity, implicit in the trial court’s judgment is the determination that the insurance contract was not ambiguous. We disagree.

The portion of the insurance policy that this court believes is ambiguous is the definition of an uninsured motor vehicle which excludes certain motor vehicles. In pertinent part, that section states:

“An uninsured motor vehicle does not include a land motor vehicle:
* * *
2. designed for use mainly off public roads, and not able to be licensed for public road use. This does not apply while the vehicle is on public roads.” (Emphasis added.)

There is no question that the KX 125 Kawasaki is a land motor vehicle designed mainly for use off public roads. That use was revealed in the certificate of origin of the vehicle and admitted by both parties. Yet we find the statement that the vehicle must “not [be] able to be licensed for public road use” ambiguous. This statement is subject to more than one interpretation. According to Webster’s Third New International Dictionary 1304 (1986), the verb “license” has numerous senses: (1) “to grant or issue a license to” and (2) “to accord permission or consent to,” among others. Consistent with the first sense of the word, to be “licensed” can be interpreted rather narrowly. That is, in the general context of motor vehicles, “licensed” can be reasonably interpreted to mean the obtaining of license or registration plates from the Secretary of State for purposes of operating such motor vehicle on a public roadway. Section 3 — 801(a) of the Dlinois Vehicle Code (Code) requires, with minor exceptions, that any vehicle which shall be operated on the public highways of the State be subject to registration under the provisions of the Code. (Dl. Rev. Stat. 1989, ch. 95 V2, par. 3 — 801(a).) Upon registration, metal registration plates, also known as license plates, are distributed to vehicle owners. (Dl. Rev. Stat. 1989, ch. 951/2, par. 3 — 412.) It is reasonable to conclude that a vehicle thus registered with the Secretary of State that has license plates mounted on it would satisfy the requirement of “able to be licensed for public road use.” It is conceivable that the KX 125 Kawasaki dirt bike in question could have been licensable on this basis on June 11,1989. It was a motor vehicle and thus came under section 3 — 801(a).

Another reasonable interpretation of the phrase “able to be licensed for public road use” is consistent with the second sense of the word “license” according to Webster’s Dictionary. “[T]o accord permission or consent to” is a broader interpretation of the word “license.” (Webster’s Third New International Dictionary 1304 (1986).) That is, one could assume that the statement meant a broad permission by the State to drive the vehicle on public roads. To that end, a vehicle must not only be registered with the Secretary of State, but must satisfy certain equipment requirements in order to be permitted to be driven on public roads. (111. Rev. Stat. 1989, ch. 951/2, par. 12— 100 et seq.) For instance, under this sense, it would be necessary for the KX 125 Kawasaki dirt bike to have a headlight, as well as other safety features. (111. Rev. Stat. 1989, eh. 951/2, par. 12 — 201(a).) Under this interpretation of the policy wording, the KX 125 Kawasaki dirt bike driven by David Dolinar in its condition on June 11, 1989, would not have been “able to be licensed for public road use.” Thus, this is a different interpretation of the policy.

We determine that the definition of an uninsured motor vehicle is subject to more than one reasonable interpretation and thus is ambiguous. Consequently, we are required to construe the exclusionary clause against the insurer and in favor of coverage for the plaintiff. (United States Fidelity, 144 Ill. 2d at 74.) The plaintiff maintains there is an issue of material fact as to what “able to be licensed for public road use” means, and defendant contends there is no issue of material fact with respect to this issue. We determine that we do not need to address this issue, as the phrase is ambiguous. Thus, we hold that the policy’s uninsured motor vehicle exclusion does not preclude the coverage alleged in the declaratory judgment action. Plaintiff is determined to be covered by the uninsured motor vehicle clause in his parents’ insurance policy No. 919 6037-B02-13. The order granting summary judgment for the defendant is reversed, and on this basis it is unnecessary to address plaintiff’s second issue on appeal or defendant’s other contentions.

The order of the circuit court of Lake County granting summary judgment is reversed.

Reversed.

UNVERZAGT, J., concurs.

PRESIDING JUSTICE INGLIS,

dissenting:

I respectfully dissent. It is uncontested that the KX 125 Kawasaki dirt bike is “designed for use mainly off public roads.” It is further uncontested that at the time of the accident the KX 125 dirt bike was not on a public road. Plaintiff argues, however, that the KX 125 Kawasaki dirt bike is licensable for public road use.

Summary judgment should be granted where no genuine issue of material fact remains unresolved and the moving party is entitled to judgment as a matter of law. (111. Rev. Stat. 1989, ch. 110, par. 2— 1005(c).) Because the interpretation of insurance contracts is governed by the rules for interpreting contracts generally, whether a policy is ambiguous is a question of law for the court to decide. Dash Messen ger Service, Inc. v. Hartford Insurance Co. (1991), 221 Ill. App. 3d 1007, 1010.

All of the evidence in support of summary judgment leads to the conclusion that the dirt bike cannot be licensed for public road use within the meaning and intent of the policy. The testimony of plaintiff’s expert, Frank Blazevich, does not create a material question of fact which precludes summary judgment. In his affidavit, Blazevich states that the KX 125 dirt bike was an off-road vehicle “which can be with minor modifications driven on public roads, but cannot be driven on highways.” (Emphasis in original.) Blazevich agreed that “there are some roads even with the modification *** where the KX-125 could not be operated.” He stated that only a vehicle with a minimum of 150 ccs could legally be driven on a highway. He then conceded that the term “highway” encompasses the term “road.”

Furthermore, the manufacturer’s statement of origin on this KX 125 Kawasaki dirt bike clearly states, “THIS VEHICLE WAS MANUFACTURED FOR OFF-THE-HIGHWAY USE ONLY IN SANCTIONED COMPETITION EVENTS UPON A CLOSED COURSE.” In addition, there was a sticker on the fork and on top of the gas tank instructing that the KX 125 dirt bike was for off-road use only.

According to defendant’s witness, the modifications necessary to legally drive the KX 125 dirt bike on a public road would require installation of headlights, turn signals, a turn signal lamp, brake lights, a horn, a license bracket for holding a vehicle license, a mirror, and foot pegs. David Dolinar testified that it would also be necessary to install a battery to furnish the essential power to operate the various lights and turn signals. In order to make the KX 125 Kawasaki dirt bike licensable, it would require “starting over from a pile of parts.”

Plaintiff has convinced the majority that if the remote possibility existed that the KX 125 Kawasaki dirt bike could somehow, with extensive modifications, be built to be legally driven on a public road, then it is “able to be licensed for public road use.” In essence, the majority has created an ambiguity in the policy language where none exists. I believe the trial judge was correct.

There is no ambiguity in the phrase “able to be licensed for public road use.” In this case, there has been no evidence offered which raises a question of fact that the KX 125 Kawasaki dirt bike can be licensed to legally drive upon all public roads. Plaintiff’s expert stated that even after substantial modification the KX 125 Kawasaki dirt bike is unable to be legally driven on all public roads.

The policy in question expressly does not include within the definitions a vehicle such as the KX 125 Kawasaki dirt bike unless it is actually being operated on a public road at the time of the occurrence giving rise to the claim. Clearly, it was not the intention to provide coverage for off-road riding of dirt bikes for the reason that the risk is clearly greater than the use of a motorcycle on the public roads.

Although plaintiff argues that the KX 125 Kawasaki dirt bike could somehow be modified for limited road usage, it had not been modified on the date of the accident. Moreover, Dolinar, the dirt bike’s owner and the driver at the time of the accident, neither applied for a license nor intended to license the dirt bike. Dolinar was only 15 years old at the time of the accident and could not legally drive any vehicle upon the public roads. (See 111. Rev. Stat. 1989, ch. 951/2, pars. 6 — 103, 6 — 105.) Dolinar’s KX 125 dirt bike could not be made licensable for use on the public roads by him on the date of the accident.

Accordingly, I dissent.