author: PRESIDING JUSTICE BARRY

text:
    FOREST PRESERVE DISTRICT OF WILL COUNTY, Plaintiff-Appellant, v. JAMES VANDERLAAN et al., Defendants-Appellees.
    Third District
    No. 3-91-0254
    Opinion filed January 6, 1992.
    Rehearing denied April 28, 1992.

      Kroesch & Kavanagh Law Office, Ltd., of Joliet (Joseph H. Singer, of counsel), for appellant.
    Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (Thomas R. Wilson, of counsel), for appellees.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Plaintiff, the Forest Preserve District of Will County (the District), appeals from a judgment of the circuit court of Will County dismissing its condemnation complaint. For reasons that follow, we reverse.

The action on appeal was filed on June 16, 1989, and named defendants James and Deborah M. Vanderlaan and unknown others as the owners of a 24.8-acre parcel of land within the boundaries of the Forest Preserve District. The District sought to condemn for public use pursuant to its power of eminent domain. The named defendants moved to dismiss on grounds of res judicata and estoppel.

Defendants established that the same parcel described in these proceedings had been the subject of another condemnation suit brought by the District against Richard and Bernadette Kohl, defendants’ predecessors in title, in 1977. The record in that action shows that counsel for the District moved the court to dismiss the cause in April 1981. The court’s docket contains an entry dated May 1, 1981, which reads, “Mr. Ned Masters present for Plaintiff. Pursuant to his motion, cause is dismissed, with prejudice, all matters in controversy having been settled.” The court’s written order signed the same day, however, states as follows: “On motion of Plaintiff, FOREST PRESERVE DISTRICT OF WILL COUNTY, ILLINOIS, A Body Corporate and Politic, and the Court being fully advised in the premises, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the above captioned cause be and the same is hereby dismissed.”

At the hearing on the motion to dismiss, James Vanderlaan testified that he and his wife purchased the property in 1987 with knowledge of the prior condemnation action. They proceeded with plans to develop the land for single-family residential purposes and incurred expenses in connection with the proposed development. In May 1989 the Vanderlaans received notice that the District was interested in purchasing the property. They promptly refused the District’s offer, and the District thereafter initiated condemnation proceedings.

The District established that the Vanderlaans’ knowledge of the prior condemnation action was gleaned from conversations with the prior owner, a neighbor and another person who told Mr. Vanderlaan about the property and a condemnation action taken against that person’s property in 1977. The Vanderlaans did not check the court records and did not discuss the matter with anyone from the District.

In its initial ruling denying defendants’ motion to dismiss, the court specifically found that res judicata did not apply on these facts because the court had made no finding on the merits of the 1977 suit and because the court’s written order did not specify that its dismissal was “with prejudice.” The court took under advisement the Vanderlaans’ argument in the alternative that the current suit was subject to dismissal on the ground of equitable estoppel. On September 26, 1989, the court entered its written order denying the motion to dismiss and setting the cause for a jury trial.

On February 20, 1991, defendants moved for reconsideration of their motion to dismiss. In support of this motion defendants cited this court’s opinion in Forest Preserve District v. Marquette National Bank (1991), 208 Ill. App. 3d 823, 567 N.E.2d 635, which, defendants argued, was decided in defendants’ favor on virtually identical facts. The court heard the motion and, on March 20, 1991, entered its order dismissing the suit with prejudice on grounds of both estoppel and res judicata.

In its appeal to this court, the District argues that Marquette differed from this case in several critical aspects. We agree. First, in Marquette, the parties stipulated to the dismissal of the District’s initial 1978 condemnation suit “with prejudice.” (Marquette, 208 Ill. App. 3d at 828, 567 N.E.2d at 638.) On review of the trial court’s dismissal of the second Marquette suit, we relied in part on the parties’ stipulation in the first suit. We noted that the doctrine of res judicata applies to eminent domain proceedings when the two suits demonstrate identities of parties, subject matter and cause of action. Given the stipulation and the fact that all three general requirements were there satisfied, we held that the District’s second suit was barred by res judicata. 208 Ill. App. 3d at 828, 567 N.E.2d at 638.

By contrast, in this case the court’s written order of May 1, 1981, does not contain language indicating that the cause was being dismissed with prejudice, and there is no indication that the parties so stipulated or that the Kohls understood that a subsequent action would be so barred. The District correctly states that in Illinois dismissals of actions at law are deemed to be “without prejudice” in the absence of language to the contrary. (People v. Bristow (1945), 391 Ill. 101, 62 N.E.2d 545.) Eminent domain is considered an action at law, not a chancery proceeding in Illinois. (Department of Public Works & Buildings v. Gieseking (1969), 108 Ill. App. 2d 105, 109, 246 N.E.2d 707, 709, citing Chicago Great Western R.R. Co. v. Ashelford (1915), 268 Ill. 87, 91-92, 108 N.E. 761.) Moreover, it is well settled that the court’s written order controls over its oral pronouncements. People v. Hayslette (1982), 107 Ill. App. 3d 647, 437 N.E.2d 1261.

In this case it is clear that the 1977 suit was dismissed prior to any hearing on the merits and without any judicial findings or stipulations. Accordingly, the docket entry notwithstanding, we find that dismissal of the 1977 suit was without prejudice to a subsequent proceeding against the same property. The trial court erred in holding that this suit was barred by res judicata.

Next, the District argues that the doctrine of estoppel does not apply. In Marquette, we found that the trial court did not err in dismissing the District’s suit on the ground that the District there had caused “undue hardship and manifest injustice” to the property owners. The legal basis for this holding was that a condition precedent to the exercise of eminent domain power in Illinois is that the District first make a bona fide attempt to agree with the owners as to a fair compensation for the property. (Marquette, 208 Ill. App. 3d at 827, 567 N.E.2d at 637, citing Department of Transportation v. Walker (1980), 80 Ill. App. 3d 1039, 400 N.E.2d 956.) This condition precedent is derived from section 7 — 102 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 7—102), which sanctions eminent domain actions where “the compensation to be paid for or in respect of the property sought to be appropriated *** cannot be agreed upon by the parties interested.” In affirming the trial court’s dismissal in Marquette, we relied on the facts there developed which demonstrated that the District’s conduct toward the property owners was unreasonable and that no bona fide attempt had been made to agree to fair compensation. We concluded there:

“It is evident that immediately prior to the submission of the present offer, the District overlooked important considerations, e.g., the timeliness of the comprehensive appraisal, the legal consequences of the changes made vis-a-vis the subject property, i.e., rezoning and final plat approval, and the further capital undertaking by the defendants, which all independently and collectively justify and support the trial judge’s finding.” Marquette, 208 Ill. App. 3d at 828, 567 N.E.2d at 638.

It is clear to us that, contrary to defendants’ position, the doctrine of equitable estoppel was not the basis for our affirmance in Marquette, but the District’s failure to establish a condition precedent to the statutory proceeding. Unlike Marquette, the facts adduced in this case at the hearing on defendants’ motion to dismiss fall far short of establishing that the District’s conduct toward the property owners was unreasonable or that their offer in the amount of $520,590 was not a bona fide attempt to agree to a fair compensation. The mere fact that defendants expended a substantial sum of money in anticipation of their proposed development of the tract does not establish that the District caused undue hardship or manifest injustice to them. In Marquette the District expressly told the owners only a year before bringing its second condemnation action that in fact it was no longer interested in acquiring the subject property. At that point the property was rezoned from agricultural to residential and the owners proceeded to subdivide lots for sale. By contrast, in this case no promises or statements were made by the District to induce subdividing expenditures. Indeed, there is no evidence in the record before us that the District’s conduct was in any respect oppressive or that its offer was less than the fair market value of the property.

It is apparent to us that the trial court on defendants’ motion for reconsideration in this case attempted to apply common law estoppel principles rather than statutory authority for the exercise of eminent domain power. The court found detrimental reliance on defendants’ part without addressing the salient question of the District’s bona fides in attempting to agree on the terms of compensation before bringing its condemnation suit. Under the circumstances, we find that the trial court’s dismissal of the complaint in this case is contrary to the manifest weight of the evidence.

The judgment of the circuit court of Will County is reversed. We remand this cause for further proceedings.

Reversed; cause remanded.

McCUSKEY and GORMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NICKELS

license: Public Domain

text:
    LAKE COUNTY GRADING COMPANY OF LIBERTYVILLE, INC., Plaintiff-Appellant, v. GREAT LAKES AGENCY, INC., Defendant-Appellee.
    Second District
    No. 2—91—0596
    Opinion filed March 27, 1992.

      Paul E. Thompson, of Thompson & Thompson, of Libertyville, for appellant.
    Stephanie D. Stevens and Mark F. Wolfe, both of Bollinger, Ruberry & Garvey, of Chicago, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Lake County Grading Company of Libertyville, Inc. (proposed insured), appeals the judgment of the circuit court which dismissed both counts of its complaint against defendant, Great Lakes Agency, Inc. (broker). The first issue on appeal is whether the proposed insured stated a cause of action when it alleged that the broker failed to perform its agreement to procure certain policies of insurance at a set premium. The second issue is whether the proposed insured can collect damages for an economic loss caused by the negligence of a broker. We reverse.

The proposed insured filed a two-count complaint based on the broker’s alleged failure to procure insurance for the proposed insured in a timely fashion. This failure resulted in the proposed insured’s prior policies of insurance expiring before new insurance policies were in place, which in turn resulted in the proposed insured’s payment of excessive insurance premiums to obtain such insurance on short notice and without the benefit of arm’s length negotiation.

The proposed insured alleged that in 1988 the broker solicited the proposed insured to purchase insurance policies of property, general liability, auto, and excess umbrella coverage, from carriers with whom the broker had business relationships and from whom the broker would thereby be paid a commission. The proposed insured’s then existing policies of insurance were to expire December 31, 1988, which the proposed insured made known to the broker. Based on the broker’s representations that the new insurance could and would be made effective at the expiration of its former policies, the proposed insured accepted the broker’s offer to procure insurance. Although the annual premium was much greater, the broker quoted the proposed insured an initial premium of $60,800, and, in response to an invoice on January 4, 1989, the proposed insured issued a check for that amount. On the same day, the broker issued binders effective December 31, 1988, listing the carriers and the amounts of coverage, which were sent to the proposed insured along with a cover letter informing the proposed insured that such coverage had been bound and was written. Still later that day at 5 p.m., the proposed insured was notified that the carriers with whom the broker dealt had declined to issue the policies and that it had no insurance coverage.

In count I of the complaint alleging breach of an oral agreement, the proposed insured sought damages of $90,000 based on the difference between the quoted price of the insurance coverage and the actual price paid by the proposed insured to obtain insurance, which was the benefit of the proposed insured’s bargain with the broker. Count II of the complaint sought damages based on the difference between the fair-market value of the coverage if obtained by arm’s length negotiation and the inflated price paid by the proposed insured when it was forced to obtain insurance without such negotiation upon the broker’s failure to do so. In count II, the proposed insured alleged that the broker had made several negligent misrepresentations. Specifically, the proposed insured alleged that the broker was in the business of supplying information on insurance coverage that was relied upon by its customers and that the broker had represented that it could obtain the requested coverages, agreed to do so, and represented that it had in fact done so. Further, the proposed insured alleged that the broker had misrepresented to the insurance carriers that the proposed insured did not operate a landfill, when in fact the broker knew such was a part of the proposed insured’s business.

The broker moved to dismiss the proposed insured’s complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) asserting that, because an insurance broker is without authority to contract on behalf of an insurance carrier, the broker was not liable for “benefit of the bargain” damages sought in count I, and that the Moorman doctrine barred plaintiff’s claim for economic damages in tort. (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 88.) The circuit court granted the motion, and the proposed insured now appeals.

When considering a motion to dismiss, the court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the nonmoving party. (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 438; American Environmental, Inc. v. 3-J Co. (1991), 222 Ill. App. 3d 242, 247.) Our consideration is thus limited to only those facts appearing in the complaint and inferences that may be drawn therefrom. (Schnidt v. Henehan (1986), 140 Ill. App. 3d 798, 801.) No cause of action should be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle a plaintiff to recover. American Environmental, 222 Ill. App. 3d at 247.

To establish a contract to procure insurance, the proposed insured must allege that one of the parties proposes to be insured, the other party agrees to insure, and the subject, the period, the amount, and the rate of the insurance are ascertained or understood and the premium is paid if demanded. (Scarsdale Villas Associates, Ltd. v. Korman Associates Insurance Agency, Inc. (1988), 178 Ill. App. 3d 261, 264; Gothberg v. Nemerovski (1965), 58 Ill. App. 2d 372, 383.) The essential elements can be established by implication if they are not stated explicitly. (Scarsdale, 178 Ill. App. 3d at 264.) If a broker procures insurance that fails to comply with the insured’s directions, the proper measure of damages for the breach of a contract to procure insurance is generally determined by the terms of the policy which the broker failed to procure. Scarsdale, 178 Ill. App. 3d at 264.

The proposed insured’s complaint alleged that the broker “approached [the proposed insured] for the purpose of soliciting [the proposed insured’s] insurance business,” “promised [the proposed insured] that it could obtain insurance,” and that the proposed insured “accepted [the broker’s] offer to procure said insurance.” The subject, period, and rate were ascertained as circumstantially evidenced by the proposed insured’s payment of the initial premium and the broker’s issuance of binders. Thus, the proposed insured’s complaint properly pleaded sufficient facts to allege a claim for breach of a contract to procure insurance.

The broker asserts that, because it was not the agent of the insurance carriers, it could not issue the policies of insurance and was, therefore, not liable for the carriers’ failure to issue such policies. Although the proposed insured seeks the benefit of his bargain with the insurance carriers, namely, a certain policy with a premium at a lower than the market price, its contract was with the broker. The carriers’ refusal to honor its quotes was beyond the broker’s control. The obligation to obtain the policy at that price was conditional upon the carriers’ acceptance of the policy. However, the broker was obliged to act promptly and with diligence and without unreasonable delay. (Talbot v. Country Life Insurance Co. (1973), 8 Ill. App. 3d 1062, 1065.) Thus, the broker’s argument goes only to the proper measure of damages, which is the difference in the cost of the insurance caused by the broker’s alleged delay.

We now turn to the application of the Moorman doctrine as a bar to recovery of economic damages in tort for negligent misrepresentation by an insurance broker. Previously, a broker’s liability could be based on either a tort theory or a contract theory. (See Clear-Vu Packaging, Inc. v. National Union Fire Insurance Co. (1982), 105 Ill. App. 3d 671, 675.) However, since 1982, the law in Illinois has generally restricted claims for economic loss to actions in contract. (Moorman, 91 Ill. 2d at 88.) The rationale supporting the Moorman doctrine is that contract law provides a superior basis over tort law for the resolution of issues concerning the failed expectations of clients where only economic loss is claimed. (Moorman, 91 Ill. 2d at 86-88.) Contract damages provide recompense for failed commercial expectations and yet do not expose professionals to unlimited and unforeseen damages for economic loss. Collins v. Reynard (1991), 154 Ill. 2d 48, 53 (reh’g granted).

However, Moorman is subject to certain exceptions. Those exceptions include not only intentional misrepresentation, but negligent misrepresentation by one who is in the business of supplying information (Moorman, 91 Ill. 2d at 88-89), such as surveyors, credit bureaus, newspapers, auditors, credit bureaus, termite inspectors and appraisers. See Collins, 154 Ill. 2d at 50.

In this instance, the proposed insured’s complaint alleged that, as an insurance broker, the broker was “in the business of furnishing information on insurance coverage which it knew would be relied upon by its customers.” Bulk Service Corp. v. Buick (1990), 203 Ill. App. 3d 739, 741, in which an insurance consultant was found to be barred by the Moorman doctrine, is not controlling. In Bulk Services, the plaintiff failed to allege that the defendant was in the business of supplying information to its customers. (Bulk Services, 203 Ill. App. 3d at 741.) Our inquiry into the sufficiency of proposed insured’s allegation in this instance is, however, unnecessary.

Although the Moorman doctrine has been applied to economic losses caused by professional malpractice, it does not apply to extracontractual duties such as an attorney’s ethical and fiduciary duties. (2314 Lincoln Park West Condominium Association v. Mann, Gin, Ebel & Frazier, Ltd. (1990), 136 Ill. 2d 302, 312, 318 (applying Moorman to professional architectural malpractice).) Thus, the “concept of duty is at the heart of the distinction drawn by the economic loss rule.” (2314 Lincoln Park West, 136 Ill. 2d at 314.) The exceptions to the Moorman doctrine are based on the principle that “the defendant owes a duty in tort to prevent precisely the type of harm, economic or not, that occurred.” (2314 Lincoln Park West, 136 Ill. 2d at 315.) Thus, we must consider the nature of the duty owed by the broker to the proposed insured and whether such duty encompassed the prevention of precisely the type of harm that occurred.

The relationship of an insurance broker and the proposed insured is a fiduciary one (American Environmental, 222 Ill. App. 3d at 249; Penrod v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1979), 68 Ill. App. 3d 75, 80) even though the broker receives compensation from the third party (Economy Fire & Casualty Co. v. Bassett (1988), 170 Ill. App. 3d 765, 772). An insurance broker’s primary function is to negotiate and procure an insurance policy on behalf of an insured. (State Security Insurance Co. v. Burgos (1991), 145 Ill. 2d 423, 434.) Illinois places a particular burden on an insurance broker to exercise competence and skill in rendering services. (Economy, 170 Ill. App. 3d at 772-73.) The broker must inform the insured of all material facts within the broker’s knowledge that may affect the transaction or the subject matter of the relationship and not mislead the insured. American Environmental, 222 Ill. App. 3d at 250; Protective Insurance Co. v. Coleman (1986), 144 Ill. App. 3d 682, 694; Estergard, Eberhardt & Ackerman, Inc. v. Carragher (1982), 105 Ill. App. 3d 816, 820.

Inherent in the obligation to seek coverage are the duties to act with promptness and to notify the customer if the insurer declines to insure the risk so that the insured customer will not be lulled into a false feeling of security or suffer prejudicial delay in seeking coverage elsewhere. (American Environmental, 222 Ill. App. 3d at 250; Wheaton National Bank v. Dudek (1978), 59 Ill. App. 3d 970, 972; Talbot v. Country Life Insurance Co. (1973), 8 Ill. App. 3d 1062, 1065.) A broker who takes an application may be said to have entered into a course of affirmative conduct and may be liable for misfeasance if unreasonable delay occurs. (Talbot, 8 Ill. App. 3d at 1065.) A broker is liable for the failure to act with diligence to place the insurance in compliance with the principal’s instructions. (Economy, 170 Ill. App. 3d at 772.) Thus, the broker in this instance had the extracontractual fiduciary duty to procure insurance before the expiration of the proposed insured’s former policies or to advise the proposed insured that such coverage was not available within sufficient time to allow the proposed insured to obtain other coverage.

While the broker argues on appeal that the damages were caused by the proposed insured’s delay in accepting the quotes, such a fact and inference do not arise from the complaint. The broker may attempt to prove that the proposed insured caused the delay or that its reliance was unreasonable, but it must file the necessary pleadings to do so. Since the broker filed only a motion to dismiss, we must accept the allegations of the complaint as true and as stated. See American Environmental, 222 Ill. App. 3d at 247.

For the above reasons, the order of the circuit court dismissing the proposed insured’s complaint is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

DUNN and McLAREN, JJ., concur.


author: JUSTICE BOWMAN

text:
    THOMAS OSRAN, Plaintiff-Appellant, v. PHILLIP BUS, Executive Director of Kane County Development Department, et al., Defendants-Appellees.—BOARD OF TRUSTEES OF RUTLAND TOWNSHIP et al., Plaintiffs-Appellants, v. THE COUNTY OF KANE et al., Defendants-Appellees.
    Second District
    Nos. 2—91—0643, 2—91—0652 cons.
    Opinion filed March 20, 1992.

      Howard B. Levy, of St. Charles, and G. Alexander McTavish, of Myler, Ruddy & McTavish, of Aurora, for appellants.
    Gary V. Johnson, State’s Attorney, of Geneva, and Julie L. Murphy, of Bullaro & Carton, Chartered, of Chicago (James Bryan Sullivan and J. Patrick Jaeger, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

This matter involves consolidated actions brought against defendants, the County of Kane (County), the Kane County Board of Supervisors, and a Kane County employee. Plaintiffs in one of the suits are nine townships, one municipality, and two private citizens (collectively, Townships), all located or residing in Kane County. Thomas Osran is plaintiff in the other action. All of the plaintiffs seek disclosure of certain documents in the possession of Kane County, the Townships pursuant to a consent decree between themselves and the County, and Osran pursuant to the Freedom of Information Act (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.).

Early in 1990 the Kane County Board of Supervisors (Board) adopted a policy favoring landfilling over incineration for disposal of the County’s solid waste. The Board publicly announced in April 1990 that it intended to acquire property and construct a new landfill of some 2,000 acres on one of five potential sites located in several of the plaintiff Townships.

In mid-May the County let it be known it was ready to pick a site and start acquiring the land. On May 25, three of the Townships filed a complaint (No. 90 — CH—0163) requesting that the County be restrained from siting the landfill within the County until the County had prepared and received approval of a comprehensive solid waste management plan as required by the Solid Waste Planning and Recycling Act (Solid Waste Act) (Ill. Rev. Stat. 1989, ch. 85, par. 5951 et seq.). A similar complaint (No. 90 — MR—0162) had been filed previously by a Kane County corporation and its principal stockholder. The two actions were subsequently consolidated. Also, the complaint was amended to add the remaining Townships and municipality.

In July 1990 the parties entered into a consent decree. Under the decree the County was prohibited from taking any further steps toward siting the landfill, or acquiring land for it, until the solid waste management plan was prepared, adopted, and submitted to the Illinois Environmental Protection Agency, as mandated by the statute. The decree also provided that the defendants would produce documents which had previously been requested by the plaintiffs and were subject to disclosure. Some, but not all, of the documents sought by plaintiffs had already been produced.

In August the plaintiffs made a written inquiry regarding production of the remaining documentation. Defendants offered additional materials but added that there remained several “very site specific” exhibits which would not be made available. Plaintiffs then moved for a rule to show cause against defendants, asserting that their refusal to produce the requested records was a violation of the consent decree. Following a hearing on the rule, the court ordered that the documents sought by plaintiffs were not subject to disclosure and, therefore, there had been no violation of the consent decree. The Townships appeal from that order.

Shortly before the Townships filed their complaint, Thomas Osran had submitted two requests to Kane County pursuant to the Freedom of Information Act (Information Act or Act) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.) for substantially the same documents as those sought by the Townships. Phillip Bus, the County development director, denied the requests, citing exemptions provided within the Information Act for certain real estate matters (hereinafter, real estate exemption) and for proposals and bids. Osran appealed to the County board chairman, Frank Miller, who upheld the denials. On July 10, 1990, Osran filed a complaint (No. 90 — MR—0208) for declaratory judgment seeking to compel disclosure of the documents. Osran’s case was ultimately consolidated with the action brought by the Townships.

In September 1990 Osran moved for an in camera inspection by the court of the records sought from the County. In October the defendants filed an “Amended and Restated Index of Exempt Records,” which was a list, including detailed descriptions, of the documents they claimed were exempt. In May 1991 the trial court entered an order indicating that, after a de novo hearing and an in camera review of the documents, it found the records withheld by the County to be exempt from disclosure under the real estate exemption that the County had relied on. Osran appeals from that order.

The Townships assert that the exemptions in the Information Act cannot be used to preclude disclosure of the records to them because their consent decree with the County provides for discovery of those records. They further argue, along with Osran, that, even if the provisions of the statute could properly be invoked, the records withheld by the County do not fall within any of the exceptions established by the Act. The County responds that the trial court correctly found the real estate exemption to be applicable and that the other exemptions it cited also effectively shield the records from disclosure. With regard to the Townships’ discovery argument, defendants posit that the trial court correctly interpreted the consent decree to mean that the County was allowed to assert any legally recognized privilege against disclosure. According to the County, the exemptions in the Information Act constitute just such a privilege. Inasmuch as the effectiveness of all of the parties’ contentions depends initially on whether the exemptions established by the Information Act apply to the withheld documents, we will decide that question first.

The County indicated on its amended index of exempt records that every one of the records listed was being withheld pursuant to several of the exemptions set forth in the Information Act. However, the trial court made clear in its orders that it relied only on section 7(lXs) of the Act to find that the documents were exempt from disclosure. That section states:

“§7. (1) The following shall be exempt from inspection and copying:
* * *
(s) The records, documents and information relating to real estate purchase negotiations until those negotiations have been completed or otherwise terminated. With regard to a parcel involved in a pending or actually and reasonably contemplated eminent domain proceeding *** records, documents and information relating to that parcel shall be exempt except as may be allowed under discovery rules adopted by the Illinois Supreme Court.” Ill. Rev. Stat. 1989, ch. 116, par. 207(1)(s).

In its order discharging the rule to show cause against the County, the court found that the documents it had reviewed in cam era “relate to parcels involved in ‘... reasonably contemplated emminent [sic] domain proceedings.’ ” The final order entered in Osran’s case reflects the court’s finding that the exhibits “relate to ‘real estate purchase negotiations’ not yet completed or terminated or to an ‘actual or reasonably contemplated emminent [sic] domain proceeding.’ ”

Unlike the trial court, we do not have the undisclosed records themselves to review. However, the index filed by the County, which describes the nature of each document in considerable detail, reflects that the County withheld: aerial photos of proposed sites with names of owners of individual parcels indicated; maps and overlays showing the factors determining the location of the proposed sites; site-specific documents including site maps, road maps, landmark maps, and landfill concept plans; various maps showing property ownership, legal descriptions, and, in some cases, names and addresses of individual owners in proposed sites; and real estate tax information and appraisals of values of parcels in proposed sites. The initial question before us is whether these materials fall within the scope of the section 7(l)(s) exemption. The trial court found that they did. We think the lower court gave the exception to the rule too expansive an interpretation.

The purpose of the Information Act is to open governmental records to the light of public scrutiny. (Ill. Rev. Stat. 1989, ch. 116, par. 201; Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373, 378; Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 534-35.) The Act facilitates public access to full information regarding the affairs of government (Ill. Rev. Stat. 1989, ch. 116, par. 201) and, thus, fosters governmental accountability and an informed citizenry (Bowie, 128 Ill. 2d at 378). As expressed in the Act, it is the public policy of the State of Illinois to encourage the free flow of information from the government to the people. (Bowie, 128 Ill. 2d at 378.) The Information Act is to be liberally construed to achieve this goal. Ill. Rev. Stat. 1989, ch. 116, par. 201; Bowie, 128 Ill. 2d at 378.

While there is a presumption that public records are open and accessible, the court must be cautious, among other things, about disrupting the functions of government by requiring disclosure beyond what is imposed by law. (Ill. Rev. Stat. 1989, ch. 116, par. 201; Bowie, 128 Ill. 2d 373.) This caution is initially established in the Act itself, where it sets forth exemptions to the general rule of disclosure. Those exceptions, however, are to be narrowly read. Bowie, 128 Ill. 2d 373; Baudin, 192 Ill. App. 3d at 535.

Under the Information Act the burden of proof is on the public body to establish that the material withheld is exempt from disclosure. (Ill. Rev. Stat. 1989, ch. 116, par. 211(e); Hoffman v. Department of Corrections (1987), 158 Ill. App. 3d 473, 476.) However, a governmental agency may not clothe its records with an exemption from disclosure by bare assertions that the material is exempt. Baudin, 192 Ill. App. 3d at 535; Hoffman, 158 Ill. App. 3d at 475-76.

According to section 7(lXs), an exemption from inspection and copying applies to materials relating to “real estate purchase negotiations” or relating to a parcel involved in a “pending or actually and reasonably contemplated” eminent domain proceeding. The County does not maintain that it was involved in actual, ongoing negotiations for the purchase of particular real estate or that there was any relevant condemnation proceeding pending at the time plaintiffs requested documents. In fact, Phillip Bus, Kane County development director, gave deposition testimony that, as far as he knew, during 1990 no offers were extended and no landowners were contacted regarding sale of their land to the County for a landfill. Nor, to his knowledge, had the County board or the solid waste subcommittee authorized discussions with owners about the sale of land for a landfill. Bus further testified that he knew of no real estate condemnations which were actually proceeding at the time Osran made his freedom of information requests. Similar testimony was given by then current County board chairman, Warren Kammerer, at his deposition.

The absence of actual negotiations is not seen by the defendants as fatal to their position, however. Rather, the County claims that the real estate exemption does not require that negotiations must be currently pending. Even if the County was “merely contemplating entering into negotiations” for the purchase of land, according to the County’s argument, the exemption would apply. We think defendants overestimate the reach of the statutory exception.

We first observe that defendants cite no authority for the position they take. More significantly, the language of the statute exempts materials relating to real estate purchase negotiations. The word “negotiation” is defined as “the action or process of negotiating or of being negotiated.” “[NJegotiate,” in turn, means “to communicate or confer with another so as to arrive at the settlement of some matter: meet with another so as to arrive through discussion at some kind of agreement or compromise about something.” (Webster’s Third New International Dictionary 1514 (1986).) Too, the material is exempted only “until those negotiations have been completed or otherwise terminated.” (Ill. Rev. Stat. 1989, ch. 116, par. 207(1)(s).) That sounds to us very much like an indication that negotiations should be underway or, at the very least, imminent, in the sense that the governmental body is, for example, delineating a negotiating strategy, or actually formulating an offer, for a site it wishes to acquire. (Cf. People ex rel. Ryan v. Village of Villa Park (1991), 212 Ill. App. 3d 187 (regarding the real estate acquisition exception to the Open Meetings Act (Ill. Rev. Stat. 1989, ch. 102, par. 42)).) At any rate, in our opinion, “real estate purchase negotiations” requires something more than the site analysis and evaluation activity the County was involved in here, as reflected in the descriptions of the undisclosed documents.

Collectively, the County’s documents constitute the kind of material that would be needed, initially, in order to locate sites within the County suitable for a landfill. They further reflect the development and analysis of data, and at least some value/cost information, which would facilitate evaluation of each site individually, as well as comparison to the sites to one another. In sum, the records withheld by the County address site selection, not purchase negotiations.

Site selection is a process which precedes acquisition of a specific site, particularly in a case like this where the County is still focused on five possible locations. Judging by the kinds of materials described in the index, the County had not even put together a plan for acquiring the site it ultimately chose, much less engaged in purchase negotiations for any targeted parcels. Consequently, as we see it, the materials are not related to real estate purchase negotiations and, thus, are not exempt from disclosure under the real estate purchase negotiations language of the exemption.

We do not find that the documents could be properly withheld under the “pending or actually and reasonably contemplated” eminent domain proceeding language, either. As we mentioned, the County does not dispute that there is no such proceeding pending. The County instead invokes the “reasonably contemplated” portion of the provision. Placed in context, however, the phrase defendants rely on reads “actually and reasonably contemplated” eminent domain proceeding. (Emphasis added.) Moreover, the statute refers to “a parcel” involved in such a proceeding and indicates that materials relating to “that parcel” are exempt. The statutory language appears to contemplate an actual or imminent condemnation of a particular parcel. However, at his deposition, Phillip Bus testified that he thought the County board contemplated condemnation proceedings, although it had not passed any resolutions to that effect. He did not remember if the solid waste subcommittee had passed any resolutions or otherwise expressed an intent to condemn property for a landfill. When asked about the basis for his opinion that the board was reasonably contemplating condemnation, defense counsel objected on the ground that the information was privileged, and Bus was advised not to answer. Again, Warren Kammerer gave answers similar to Bus’ but added that, in his opinion, condemnation was not contemplated for a thousand-acre landfill in western Kane County.

While the County undoubtedly recognizes that it may have to resort to its power of eminent domain in order to acquire the land it seeks, neither the withheld documents themselves nor any other evidence in the record shows that the County is actually and reasonably contemplating acquisition of “a parcel” through condemnation. The County needs only one site, no site has been chosen, and acquisition of the site has not, therefore, been initiated. At best the County can only speculate that it may have to resort to condemnation. In our view, the statute contemplates much closer and more intense focus on condemnation of desired real estate than the vague and speculative assertion made by the County here that it may at some time use its power of eminent domain to acquire one of the five sites scrutinized in the materials sought by plaintiffs. The County did not show the necessary focus. We conclude that the contemplated condemnation language of the exemption does not justify the withholding of the particular documents at issue here.

The County apparently perceives the documents as related to both real estate purchase negotiations and reasonably contemplated condemnation proceedings in the sense that the information contained in the documents provides a sound basis for choosing a site and is one of many steps leading up to the actual purchase or condemnation of a site. However, the language of the exemption — “purchase negotiations” and “actually and reasonably contemplated” condemnation-does not, on its face, include the investigation, fact finding, analysis, and other background activities which must be done before a purchase can be negotiated or a condemnation can be actually and reasonably contemplated. Since the statute directs that they are to be narrowly construed (see Bowie, 128 Ill. 2d 373), we do not believe the exemptions should be expanded and extended beyond the language creating them in order to accommodate the withholding of the documents in this case, documents which, in themselves, speak nothing of actual purchase negotiations or of the imminent condemnation of any particular parcel. Thus, as described by the legislature, the exemptions remain “limited exceptions to the general rule that the people have a right to know the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people.” (Ill. Rev. Stat. 1989, ch. 116, par. 201.) The trial court should have directed the defendants to disclose the documents.

Although the trial court based its decision only on the real estate acquisition exemption, both Osran and the Townships address the other exemptions claimed by the County for the documents listed on its amended index. The County responds only in a cursory fashion regarding these other exemptions. All of defendants’ arguments are, at best, sketchy, highly speculative, or based on unsupported assertions. With one unremarkable exception the arguments are devoid of both authority and citation to the pages of the record relied on, both elements required by Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)). We decline to make defendants’ arguments for them and will not address the remaining exemptions.

As a final matter we note that the Townships’ complaint sought to compel the County’s compliance with the Solid Waste Act. We have reviewed that statute and observe that it requires the County to prepare and adopt a solid waste management plan which, among other things, must identify the locations of potential sites for the processing and disposal of waste, or explain how the sites will be chosen. (Ill. Rev. Stat. 1989, ch. 85, par. 5954.) It also provides (see generally Ill. Rev. Stat. 1989, ch. 85, par. 5955) that, prior to adopting a plan, the County must form an advisory committee composed of representatives of the municipalities, citizen organizations, the private waste management industry, recyclers, and others the County deems appropriate. The committee is to review and suggest improvements to the plan while it is being prepared. The County must give written notice to interested members of the public when plan development begins, as well as provide progress reports. Finally, before adoption the plan must be made available for a 90-day period for public review and comment.

The provisions just described leave no doubt that the legislature intended for the public to be informed and to participate fully in every stage of the development of county solid waste management plans. We are confident that, sooner or later, such plans must pinpoint the locations of waste disposal sites. The public participation policy of the Solid Waste Act would certainly seem to suggest that those locations should be made known to the public. With this thought in mind, we cannot ignore the following directive in the policy statement of the Information Act:

“This Act shall be the exclusive State statute on freedom of information, except to the extent that other State statutes *** or other laws in Illinois might create additional obligations for disclosure of information to the public.” (Ill. Rev. Stat. 1989, ch. 116, par. 201.)

Reading this provision together with the Solid Waste Act’s policy of encouraging an informed public is persuasive that the materials withheld by Kane County should not be exempt from disclosure.

The Solid Waste Planning and Recycling Act (Ill. Rev. Stat. 1989, ch. 85, par. 5951 et seq.) became effective on January 1, 1989, long after the July 1, 1984, effective date of the Freedom of Information Act. Had the legislature intended that the Information Act exemptions should apply even to the kinds of information shared with the public under the Solid Waste Act, it could have incorporated such a limitation, either directly or by reference, into the latter act. It appears to us that, if anything, the legislature did just the opposite. The policy of openness in the Solid Waste Act, which, in fact, is in pari materia with the Information Act as a whole, seems to suggest that the scope of permissible limitations on disclosure of information regarding a county’s plan for solid waste management should be minimized as much as possible. The decision we reach today is in keeping with the interplay between the two statutes.

Since we have concluded that the documents withheld by the County are not exempt from disclosure under the Freedom of Information Act, we need not address the Townships’ further contention that the Information Act exemptions do not render the documents privileged from discovery.

For the reasons stated, the judgment of the circuit court of Kane County is reversed. Under the authority granted to us in Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we order the defendants to produce and make available to the plaintiffs the documents withheld, as they are listed on defendants’ “Amended and Restated Index of Exempt Records,” within 14 days.

Reversed.

INGLIS, P.J., and WOODWARD, J., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PAMELA J. KNUCKLES, Defendant-Appellee.
    Second District
    No. 2—90—0893
    Opinion filed March 25, 1992.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Michael J. Burke, and Kathryn E. Creswell, Assistant State’s Attorneys, and William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Thomas P. Sullivan, of Jenner & Block, and George P. Lynch, of George Patrick Lynch, Ltd., both of Chicago (Kathleen M. Bañar, of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Pamela Knuckles, was indicted for murder (Ill. Rev. Stat. 1983, ch. 38, par. 9—1) and several other offenses in connection with the death of her mother. Several weeks after defendant was arrested, Dr. Lyle Rossiter, a psychiatrist retained by her attorney, examined her at the Du Page County jail. Although defendant intends to raise the defense of insanity at trial, she does not intend to call Dr. Rossiter as a witness. The State, however, issued a subpoena duces tecum to Dr. Rossiter requesting the production of any notes or memoranda from his interview with defendant. The State subsequently issued a second subpoena to Dr. Rossiter for the purpose of having him testify at trial. The trial court quashed both subpoenas on the basis that they sought the disclosure of information protected by the attorney-client privilege and the work product doctrine. The State now appeals. The issues presented are: (1) whether the attorney-client privilege and work product doctrine apply here; (2) whether, if applicable, the protections afforded by these doctrines are waived because defendant intends to raise a defense of insanity; (3) whether defendant’s right to the effective assistance of counsel prohibits the compelled disclosure of any communications between her and Dr. Rossiter; and (4) whether exigent circumstances exist in this case which justify compelling Dr. Rossiter to produce his notes and memoranda from the interview and to testify. We affirm.

Defendant’s mother was killed on November 28, 1984. On December 11, 1984, defendant was indicted for murder and several other offenses. The next day the circuit court issued an order allowing Dr. Rossiter, who had been retained by defendant’s attorneys, to examine her at the Du Page County jail. Dr. Rossiter did so later in December.

On June 5, 1985, pursuant to a plea agreement, defendant pleaded guilty to murder. She was sentenced to a 33-year term of imprisonment. Defendant filed a petition for post-conviction relief on January 5, 1989. The circuit court granted the petition on August 1, 1989, vacated defendant’s conviction, and allowed her to withdraw her guilty plea because the court found that the plea resulted from the erroneous advice of counsel that defendant was eligible for the death penalty. Defendant was not eligible for the death penalty because she was 17 years of age at the time of the killing. The case was then set for trial.

On June 4, 1990, defendant disclosed her intention to raise the defense of insanity at trial. That same day defendant provided to the prosecution a list of witnesses she intended to call at trial. Two psychiatrists, two psychologists, and one social worker, all of whom examined defendant after her guilty plea was vacated, were on the list. The defense had previously tendered to the State copies of reports from each of these experts. Dr. Rossiter was not on the defense witness list.

Shortly thereafter the State filed a subpoena duces tecum upon Dr. Rossiter requiring him to produce all reports, notes, or memoranda from his December 1984 examination of defendant. The State subsequently served a second subpoena upon Dr. Rossiter requiring him to appear to testify at defendant’s trial. Defendant filed a motion to quash the subpoenas. On July 20, 1990, the trial court granted the motion and quashed the subpoenas on the basis that the attorney-client privilege and the work product doctrine prohibit disclosure of communications between defendant and Dr. Rossiter. The State now appeals.

The issue of the applicability of the attorney-client privilege and work product doctrine to communications between a defendant and a psychiatrist or psychologist retained by defense counsel for the purpose of exploring the possibility of raising an insanity defense is a matter of first impression in Illinois. We will first explore the applicability of the attorney-client privilege to such communications.

In general, the attorney-client privilege permanently protects against disclosure any communications made in confidence by a client seeking legal advice to a professional legal adviser acting in that capacity unless the client waives the privilege. (People v. Williams (1983), 97 Ill. 2d 252, 294; Regan v. Garfield Ridge Trust & Savings Bank (1991), 220 Ill. App. 3d 1078, 1090.) Relying upon cases from other jurisdictions, the State contends that the attorney-client privilege does not apply because Dr. Rossiter was not an attorney. See, e.g., State v. Craney (Iowa 1984), 347 N.W.2d 668, 677; State v. Carter (Mo. 1982), 641 S.W.2d 54, 57.

Our supreme court held in People v. Knippenberg (1977), 66 Ill. 2d 276, 282-84, that communications between the defendant and an investigator retained by his attorney were protected by the attorney-client privilege because the investigator was an agent of the attorney. The court noted that the privilege extends to communications between a client and agents of an attorney such as a clerk or stenographer whose assistance is indispensable to the attorney’s work. (Knippenberg, 66 Ill. 2d at 283-84.) In response to the State’s argument that the privilege should not apply because the investigator was not essential to communication between the defendant and his attorney, the court stated, “realities of practice often require an attorney’s use of investigators.” 66 Ill. 2d at 284.

There can be little doubt that the assistance of a mental health expert such as a psychiatrist or a psychologist is of critical importance to the accused in determining whether an insanity defense should be raised and in the preparation of such a defense. The United States Supreme Court has concluded that when the question of an indigent defendant’s sanity at the time of an offense will be a significant factor at trial the assistance of a competent psychiatrist is so vital that the State must provide the accused with access to one who will examine the accused and aid in the evaluation, preparation, and presentation of an insanity defense. (Ake v. Oklahoma (1985), 470 U.S. 68, 83, 84 L. Ed. 2d 53, 66, 105 S. Ct. 1087, 1096.) The psychiatrist is needed not only to provide expert testimony at trial but to assess the wisdom of asserting an insanity defense, to assist defense counsel in understanding unfamiliar medical and psychiatric concepts, and to help counsel intelligently scrutinize adverse psychiatric testimony. State v. Pratt (1979), 284 Md. 516, 521, 398 A.2d 421, 424.

Therefore, in our view, the rationale of Knippenberg applies with equal force to a psychiatrist or psychologist who, like Dr. Rossiter, is retained by defendant or defendant’s attorney in order to assist counsel in the evaluation, preparation, or presentation of an insanity defense. Accordingly, under that holding, Dr. Rossiter’s communications with defendant are protected by the attorney-client privilege absent a waiver of the privilege.

We note that in People v. Speck (1968), 41 Ill. 2d 177, it was held that permitting a fingerprint expert originally retained by the defense to testify at trial did not violate the attorney-client privilege. (Speck, 41 Ill. 2d at 200.) In Speck, however, the court stated that the expert did not reveal during his testimony the contents of any conversations between him and the defendant or defense counsel. (41 Ill. 2d at 200.) A fingerprint expert such as the one in Speck could render an opinion on whether fingerprints belong to defendant merely by comparing the prints to ones which are known to be defendant’s. The expert could testify without directly or indirectly revealing any confidential communications taking place while employed by the defense because the expert’s opinion need not be based upon those communications.

The same cannot be said when a psychiatrist originally retained by the defense testifies on behalf of the State. The psychiatrist’s opinion as to the defendant’s sanity will almost invariably result in large part from confidential communications with the defendant which would be directly or indirectly revealed if the psychiatrist testified on behalf of the State. Speck is therefore distinguishable and does not alter our conclusion that defendant’s communications with Dr. Rossiter are protected by the attorney-client privilege unless the privilege was waived. Our holding is in accord with cases from other jurisdictions in which courts have held that communications between a defendant and a defense-retained psychiatrist or psychologist are protected by the attorney-client privilege. See, e.g., United States v. Alvarez (3d Cir. 1975), 519 F.2d 1036, 1046-47; Houston v. State (Alaska 1979), 602 P.2d 784, 790; Miller v. District Court (Colo. 1987), 737 P.2d 834, 837-38; State v. Pratt (1979), 284 Md. 516, 520-21, 398 A.2d 421, 423-25.

The State argues that even if the privilege applies here it is waived because defendant intends to raise the insanity defense at trial. Courts from other jurisdictions are divided on the issue of whether raising an insanity defense constitutes a waiver of the attorney-client privilege with respect to a psychiatrist or psychologist whom the defense does not intend to call as a witness at trial. See, e.g., Houston, 602 P.2d at 791; Miller, 737 P.2d at 838; Pratt, 284 Md. at 521, 398 A.2d at 425-26 (holding no waiver). But see, e.g., Austin v. Alfred (1990), 163 Ariz. 397, 401-02, 788 P.2d 130, 135; People v. Edney (1976), 39 N.Y.2d 620, 626, 385 N.Y.S.2d 23, 26, 350 N.E.2d 400, 403; State v. Bonds (1982), 98 Wash. 2d 1, 21, 653 P.2d 1024, 1035 (holding privilege was waived).

A waiver is an “intentional relinquishment of a known right.” (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 499.) A waiver arises from the actions, words, or conduct of the individual waiving the right, and it may be either express or implied. (Sexton v. Smith (1986), 112 Ill. 2d 187, 194.) Defendant has not expressly waived her right to rely upon the attorney-client privilege with respect to her communications with Dr. Rossiter. We must therefore determine whether a waiver of that right should be implied from defendant’s announced intention to raise an insanity defense at trial.

In the Edney case the New York Court of Appeals based its decision that the privilege was waived by raising an insanity defense upon the fact that, in New York, a defendant pleading insanity is required to submit to an examination by a psychiatrist designated by the prosecution if such an examination is requested. (Edney, 39 N.Y.2d at 626, 385 N.Y.S.2d at 26, 350 N.E.2d at 403.) The court concluded that since the defendant must reveal to the prosecution the same facts which would be secreted by the privilege't would not make sense to allow the defendant to use the privilege to bar the testimony of a psychiatrist originally retained by the defense if an insanity defense is raised. 39 N.Y.2d at 626, 385 N.Y.S.2d at 26, 350 N.E.2d at 403.

Likewise, in Illinois, if the defendant intends to raise an insanity defense, the trial court must, upon motion of the State, order the defendant to submit to an examination by at least one qualified psychiatrist or clinical psychologist named by the prosecuting attorney. (See Ill. Rev. Stat. 1989, ch. 38, par. 115—6.) We do not agree, however, with the premise of Edney that the same confidences are necessarily revealed to both a defense-retained psychiatrist or psychologist and one designated by the prosecution to examine a defendant. As we have stated, a defense-retained psychologist or psychiatrist often serves as a consultant and assistant to defense counsel in exploring the possibility of raising an insanity defense and in shaping the defense. This means that some confidential information will likely be divulged to a defense-retained mental health professional that would not be divulged to one retained by the prosecution. Therefore we do not believe that a waiver of the privilege should result merely because a defendant must submit to an examination by at least one mental health professional who is designated by the State.

Another reason given by some courts for recognizing a waiver is that the benefits to be realized by applying the privilege in the present situation are outweighed by the public interest in full disclosure of relevant information regarding the defendant’s sanity and by the adverse impact that suppression of a valuable witness would have on the truth-seeking process. (See Austin v. Alfred (1990), 163 Ariz. 397, 402, 788 P.2d 130, 135; State v. Bonds (1982), 98 Wash. 2d 1, 21, 653 P.2d 1024, 1035.) The attorney-client privilege is a narrowly construed exception to the general rule of disclosing relevant information. (Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 118.) Thus, the potential impact of recognizing the privilege on the truth-seeking process will be considered in determining the scope and applicability of the privilege. See Consolidation Coal Co., 89 Ill. 2d at 117-18.

As we have seen, section 115 — 6 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115—6) requires defendants who give notice of their intention to rely upon an insanity defense at trial to be examined by at least one qualified clinical psychiatrist or clinical psychologist designated by the prosecution upon motion of the State. Moreover, Supreme Court Rule 413(d) (134 Ill. 2d R. 413(d)) requires that within a reasonable time after the filing of a written motion by the State a defendant must inform the State of any defenses he or she intends to raise at trial or at any hearing. These provisions assure that the State can have early access to expert testimony concerning the issue of a defendant’s sanity. They therefore greatly minimize the impact that the silencing of a defense-retained psychiatrist or psychologist would have on the truth-seeking process.

In State v. Bonds (1982), 98 Wash. 2d 1, 653 P.2d 1024, however, the Washington Supreme Court concluded that an examination by a defense-retained psychiatrist is likely to shed more light on the issue of defendant’s sanity than an examination which is conducted by a psychiatrist designated by the prosecution. (Bonds, 98 Wash. 2d at 21, 653 P.2d at 1035.) The reasons stated by the court for this conclusion are: (1) a defense psychiatric examination will usually take place before a prosecution psychiatric examination does and will therefore occur at a time when the defendant’s memory is clearer and his or her mental condition is less likely to have changed significantly; (2) by the time a defendant is examined by a prosecution psychiatrist he or she may have learned during the course of other examinations how to tailor responses so as to support a claim of insanity; and (3) a defendant will usually be more cooperative "with a defense-retained psychiatrist than one retained by the prosecution. Bonds, 98 Wash. 2d at 21, 624 P.2d at 1035.

There is some validity to the above concerns. It would appear, however, that the requirements of section 115 — 6 of the Code and Supreme Court Rule 413(d) (134 Ill. 2d R. 413(d)) are sufficient to enable the State to overcome these obstacles in most instances. We do not believe the existence of these concerns is a substantial impediment to the truth-seeking process.

Although defense psychiatrists will generally enjoy some advantage by being able to examine the defendant earlier than the prosecution psychiatrist, all of the examining psychiatrists will be faced with the task of trying to determine what the defendant’s mental condition was at the time of the offense. With regard to the second factor it does not seem reasonable to us that many defendants would become so learned from a few prior examinations to enable them to dupe a prosecution psychiatrist into accepting a frivolous insanity claim. Finally the problem of potential lack of cooperation with a prosecution psychiatrist is addressed by that portion of section 115 — 6 which states that in the event of a defendant’s failure to cooperate the trial court shall preclude the defense from presenting expert testimony tending to support an insanity defense (see Ill. Rev. Stat. 1989, ch. 38, par. 115—6). This sanction is a strong deterrent to potentially uncooperative defendants as it all but assures that they will be unable to meet their burden of proving the affirmative defense of insanity by a preponderance of the evidence (see Ill. Rev. Stat. 1989, ch. 38, par. 6-2).

The above considerations must be balanced against the benefits to be realized by allowing a claim of privilege and the potential adverse impact that would result from holding that the privilege was waived. The purpose of the attorney-client privilege is to promote the free flow of communication between the client and the attorney or the attorney’s agent by removing the fear that confidential information may be disclosed. (People v. Williams (1983), 97 Ill. 2d 252, 294.) We have already discussed the importance of expert assistance to the accused in exploring the possibility of raising an insanity defense and in preparing and presenting such a defense. Courts which have held that raising an insanity defense does not automatically waive the attorney-client privilege with respect to a defense-retained psychiatrist whom the defense does not call as a trial witness have done so largely out of a concern that a contrary holding would inhibit communication among the defendant, the psychiatrist, and the attorney because of the fear of creating a prosecution witness. (United States v. Alvarez (3d Cir. 1975), 519 F.2d 1036, 1046-47; Houston v. State (Alaska 1979), 602 P.2d 784, 791; Miller v. District Court (Colo. 1987), 737 P.2d 834, 838-39.) As the court pointed out in Miller, the ability of the subject to communicate freely and candidly can be crucial to the utility of a psychiatric examination. Miller, 737 P.2d at 839.

Furthermore, because of the subjective nature of the fields of psychiatry and psychology we agree with the view expressed by the court in Alvarez that a defendant’s attorney should be encouraged to consult with more than one expert, possibly with conflicting views, without fear that this may assist the prosecution’s case. (Alvarez, 519 F.2d at 1047.) Allowing the adoption of an insanity defense to result automatically in a waiver of the privilege would cause many defense attorneys to limit their consultations to psychiatrists with known tendencies to testify on behalf of defendants and to halt such consultations after receiving one favorable report.

Therefore we agree with the observation of the court in Miller that holding that the privilege is waived by the assertion of an insanity defense would have a substantial adverse impact upon defense counsel's ability to explore and prepare an insanity defense. (Miller, 737 P.2d at 839.) Because this concern outweighs the adverse impact that applying the privilege would have on the truth-seeking process, we conclude that a defendant does not automatically waive the attorney-client privilege with respect to communications with a defense-retained psychiatrist or psychologist who will not be called as a witness by the defense by raising a defense of insanity.

One court which has concluded that the attorney-client privilege applies to communications between an accused and a defense-retained psychiatrist unless the defendant calls the psychiatrist as a witness has recognized an exception if applying the privilege would so effectively deprive the trier of fact of valuable witnesses “as to undermine the public interest in the administration of justice.” (Pouncy v. State (Fla. App. 1977), 353 So. 2d 640, 642.) The State argues that this exception should apply here because Dr. Rossiter was the only psychiatrist or psychologist who examined defendant near the time of the alleged offenses. Because of the unique circumstances of this case, the other experts who have examined defendant on behalf of the prosecution or the defense did so more than five years after the alleged offenses took place.

In Pouncy, the court noted that the State had called two prosecution-retained psychiatrists to testify at trial along with two defense-retained psychiatrists. (Pouncy, 353 So. 2d at 642.) The court therefore concluded that “there was neither such a dearth of experts available, nor such a precarious position occupied by the State” as to justify invoking this exception to the privilege. 353 So. 2d at 642.

The same is true in the case at bar. A prosecution-retained psychiatrist examined defendant in July 1990, and the trial court has the discretion under section 115 — 6 of the Code to allow others to examine her. While we presume that Dr. Rossiter’s testimony would assist the State, there has been no showing that the State will be unable to find other experts in Du Page County or the Chicago metropolitan area to testify on its behalf. These experts will not have the advantage of having examined defendant near the time of the offenses as Dr. Rossiter did, but the same is true of the defense experts who will testify at trial, and, as we have seen, the defense has the burden of proving the affirmative defense of insanity.

We therefore conclude that the unavailability of Dr. Rossiter does not impede the State’s ability to secure expert testimony. Accordingly, the attorney-client privilege applies and bars the State from calling Dr. Rossiter as a trial witness. We further conclude that since Dr. Rossiter’s report, notes, and memoranda concerning his interview with defendant would directly and indirectly reveal confidential communications the attorney-client privilege also bars the State from compelling production of these documents. See State v. Kociolek (1957), 23 N.J. 400, 412-14, 129 A.2d 417, 423-24 (attorney-client privilege bars compelled production of report from defense-retained psychiatrist who examined defendant).

The State further argues that under Supreme Court Rule 413(c) (134 Ill. 2d R. 413(c)) all reports of mental examinations of the defendant in the possession of the defense in a criminal case must be turned over to the State thereby requiring the production of Dr. Rossiter’s notes, memoranda, and report. Rule 413(c) also states, however, that portions of such reports containing defendant’s statements may be withheld if the defense does not intend to use any portion of the report at a hearing or at trial. (134 Ill. 2d R. 413(c).) It is clear from the record that defendant does not intend to use Dr. Rossiter’s report, notes, or memoranda at any hearing or trial.

Additionally, Supreme Court Rule 412(j)(i) (134 Ill. 2d R. 412(j)(i)) states that disclosure will not be required under Rule 412 or 413 of any records, correspondence, reports, or memoranda to the extent they contain “the opinions, theories or conclusions *** of defense counsel or his staff.” As we have concluded that Dr. Rossiter, in examining defendant, was acting as an agent of defense counsel, we likewise conclude that he was acting as a member of defense counsel’s staff. Therefore any portions of documents containing Dr. Rossiter’s opinions, theories or conclusions reached as a result of his examination of defendant are immune from disclosure. The documents sought by the State are not part of the record, but it would appear that the only relevant information they would contain would be statements or summaries of statements by the defendant and Dr. Rossiter’s opinions, theories, and conclusions. Accordingly, disclosure of these documents was not required under Rule 412(j)(i) and Rule 413(c).

For the above reasons the trial court acted properly in quashing both subpoenas. The order of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT and McLAREN, JJ., concur.


author: JUSTICE McLAREN

text:
    STEPHEN J. ELLIOTT, Plaintiff-Appellant, v. L R S L ENTERPRISES, INC., et al., Defendants-Appellees.
    Second District
    No. 2—91—0550
    Opinion filed March 25, 1992.

      William E. Jegen, of William E. Jegen, P.C., of Glen Ellyn, for appellant.
    Steven C. Carbon, of Kupisch, Hunt, Carbon & Kaiser, of Bensenville, and James McClure, of Elmhurst, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Stephen Elliott, plaintiff, brought a breach of contract action as landlord against his tenant, L R S L Enterprises, Inc., Virginia Lippig and Larry Lippig, d/b/a Lippig Accounting Service, defendants, seeking damages for failure to pay rent. The trial court granted defendants’ motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619), and plaintiff appealed. We reverse and remand.

Elliott leased certain premises to LRSL for a six-year term commencing July 1, 1987, through June 30, 1993. The lease provided, in pertinent portion, as follows:

“REMEDIES NOT EXCLUSIVE-19. The obligation of Lessee to pay the rent reserved hereby during the balance of the term hereof, or during any extension hereof, shall not be deemed to be waived, released or terminated, *** by the service of any five-day notice, other notice to collect, demand for possession, or notice that the tenancy hereby created will be terminated on the date therein named, the institution of any action of forcible detainer or ejectment or any judgment for possession that may be rendered in such action, or any other act or acts resulting in the termination of Lessee’s right to possession of the Premises. The Lessor may collect and receive any rent due from Lessee, and payment or receipt thereof shall not waive or affect any such notice, demand, suit or judgment, or in any manner whatsoever waive, affect, change, modify or alter any rights or remedies which Lessor may have by virtue hereof.” (Emphasis added.)

Because defendants failed to pay rent due for December 1989 and January 1990, plaintiff instituted a suit trader the forcible entry and detainer statute (Ill. Rev. Stat. 1989, ch. 110, par. 9—101 et seq.) seeking possession and past due rent. On February 23, 1990, the following order was entered:

“AGREED ORDER
This cause coming on to be heard for trial and the Court being advised that the parties have reached an agreement.
It be and is hereby ordered as follows:
(a) That the Defendants [sic] tenancy is terminated on or about March 31, 1990 and the premises shall be vacated on or before that date.
(b) That the following sums shall be paid to the plaintiff:
(a) On Feb. 23,1990-$ 2,000.00
(b) On Feb. 27,1990-$ 1,176.00
. (c) On March 15,1990-$ 2,376.00
(c) That if Defendants fail to make any of the above payments then, upon notice of motion the Plaintiff shall be granted a judgment for all unpaid amounts and a writ of assistance for immediate possession.” (Emphasis added.)

Defendants failed to make all of the payments specified in the order. Accordingly, plaintiff petitioned the court pursuant to paragraph (c) of the order and obtained both a judgment for immediate possession of the premises and a judgment for $3,552 against defendants, which represented the amounts unpaid pursuant to the terms of the order.

Thereafter, plaintiff filed a breach of contract action against the same defendants seeking damages under the lease for the period of time subsequent to the “termination of the tenancy” in March 1990. In response, defendants filed a motion to dismiss pursuant to section 2 — 619 of our Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619). The motion asserted that the breach of contract action was barred by the entry of the agreed order in the forcible entry and detainer action and subsequent judgment for breach of the order because the issues of past and future rent due were resolved by the terms of the order. (See Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(4).) The court found the agreed order was subject to several interpretations and requested affidavits to determine the intent of the parties when the order was entered. Upon receiving the affidavits of Burton A. Brown and Teresa L. Einarson, the attorneys representing plaintiff and defendant in the forcible entry and detainer action respectively, the court granted the motion to strike and dismiss. On the motion to reconsider, the judge explained that he found language of the order ambiguous and that he interpreted the term “termination of tenancy” as a manifestation of the parties’ intent to resolve all matters.

Whenever the granting of a motion to dismiss is reviewed, all well-pleaded facts alleged in the complaint are taken as true. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 505.) A complaint should not be dismissed under section 2 — 619 unless it clearly appears that no set of facts can be proved which would entitle plaintiff to recover. (People ex rel. Hartigan v. Knecht Services, Inc. (1991), 216 Ill. App. 3d 843, 860.) On review, the appellate court is concerned only with questions of law presented by the pleadings. Any allegations which are merely conclusions, unsupported by allegations of specific facts, are not admitted. Toys “R” Us, Inc. v. Adelman (1991), 215 Ill. App. 3d 561, 564.

Defendants asserted in their motion to dismiss that the breach of contract action was barred by the disposition of the forcible entry and detainer proceeding by agreed order. On appeal, plaintiff contends that the court improperly dismissed the breach of contract action under the doctrine of res judicata because the agreed order was not an adjudication of the rights of the parties and, therefore, does not constitute a final judgment on the merits. The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars any future actions between the same parties or their privies on the same cause of action. (Kinzer v. City of Chicago (1989), 128 Ill. 2d 437, 446.) The doctrine prohibits relitigation of not only those issues which were actually raised in the first proceeding but also any issue which might have been raised. Fried v. Polk Brothers, Inc. (1989), 190 Ill. App. 3d 871, 878.

A judgment is final for purposes of res judicata if it terminates litigation on the merits so that the only issue remaining is proceeding with its execution. (Catlett v. Novak (1987), 116 Ill. 2d 63, 68.) It is true that an agreed order neither constitutes a judicial determination of the rights of the parties nor represents judgment of the court. (Ad-Ex, Inc. v. City of Chicago (1990), 207 Ill. App. 3d 163, 177.) Instead, it is a recordation of the private agreement of the parties. (Kandalepas v. Economou (1989), 191 Ill. App. 3d 51, 53.) However, an order entered by consent of the parties operates to the same extent for purposes of res judicata as a judgment entered after contest, because it is conclusive with respect to the matters settled by the order, judgment, or decree. (Barth v. Reagan (1986), 146 Ill. App. 3d 1058, 1064.) Any other interpretation would effectually nullify all settlements because the same claim would be subject to the possibility of future litigation and double recovery. Therefore, we find plaintiff’s contention, that res judicata does not apply because an agreed order cannot be a final judgment on the merits, erroneous as a matter of law. However, due to the nature of paragraph 19 of the lease contract, we determine that res judicata does not apply beyond the specific language of the agreed order.

An agreed order is considered a contract between the parties to the litigation. Accordingly, its construction is governed by principies of contract law. (Flora Bank & Trust v. Czyzewski (1991), 222 Ill. App. 3d 382, 388; Haisma v. Edgar (1991), 218 Ill. App. 3d 78, 87.) In order to determine whether the disposition of the forcible entry and detainer action by the terms of the agreed order finalized any further actions concerning the lease contract, it is necessary to interpret the language of the order.

Like any other contract, the primary consideration is to effectuate the intent of the parties. (Riney v. Weiss & Neuman Shoe Co. (1991), 217 Ill. App. 3d 435, 442.) “In general, the intention of the parties is to be determined from the final agreement executed by them, rather than from preliminary negotiations and agreements, [citation] but previous agreements, negotiations and circumstances may be considered in determining the meaning of specific words and clauses.” (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 283.) Accordingly, the order must be interpreted in its entirety, considering all facts and circumstances surrounding its execution, as well as all pleadings and motions from which it emanates. Prairie Material Sales, Inc. v. White Diamond, Inc. (1987), 157 Ill. App. 3d 779, 784; Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 789.

In this case, paragraph (a) of the order states that the “tenancy is terminated on or about March 31, 1990.” However, the order must be interpreted in light of paragraph 19 of the lease, which provides that the lessee’s obligation to pay rent is unaffected by any acts resulting in the termination of lessee’s right to possession of the premises, including the institution of forcible entry and detainer proceedings or recovery of a judgment for possession. Substantially similar lease clauses have been deemed valid by Illinois courts. (Vintaloro v. Pappas (1923), 310 Ill. 115, 118-19; Central Investment Co. v. Melick (1915), 267 Ill. 564, 569; Truly Warner Co. v. Royal Indemnity Co. (1931), 259 Ill. App. 485; Waller v. Wilson (1935), 282 Ill. App. 418, 429.) In Grommes v. St. Paul Trust Co. (1893), 147 Ill. 634, the court stated as follows:

“There is nothing illegal or improper in an agreement, that the obligation of the tenant to pay all the rent to the end of the term shall remain notwithstanding *** a re-entry for default; and, if the parties choose to make such an agreement, we see no reason why it should not be held valid ***.” (Grommes, 147 Ill. at 643.)

When such a clause has been written into the lease, the courts have held that the lessee’s duty to pay rent survives his eviction in a forcible entry and detainer proceeding, thus holding the tenant liable for all rent due to the end of the term. (See Lake Shore Management Co. v. Blum (1968), 92 Ill. App. 2d 47, 53; Klein v. Ickovitz (1966), 72 Ill. App. 2d 59, 61; Broniewicz v. Wysocki (1940), 306 Ill. App. 187, 193.) As stated in Heims Brewing Co. v. Flannery (1891), 137 Ill. 309:

“[T]he mere surrender of possession of the building leased, though made upon demand by the plaintiffs based upon a default in the payment of an installment of the rent, should not terminate said contract altogether, but only the defendant’s right to the possession of the building leased, thus leaving all the other provisions of the contract, as well as the defendant’s obligation to pay the stipulated consideration, in full force.” Heims, 137 Ill. at 318.

Therefore, the reservation of remedy provisions contained in the lease must be given effect unless specifically abrogated by the agreed order. By unambiguously stating the “tenancy is terminated,” the parties have not abrogated the reservation of remedy provisions of the lease. However, the trial court found to the contrary, as it first found the language of the order ambiguous and subsequently ruled that based on the affidavits of the attorneys, the order in the forcible entry action was intended to be a final disposition of all issues concerning the lease.

Whether an ambiguity exists is a question of law to be determined by the trial court. (Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 288.) Where the court determines that an ambiguity does exist, its subsequent construction of the contract will not be disturbed on review unless it is contrary to the manifest weight of the evidence. (Myers v. Popp Enterprises, Inc. (1991), 216 Ill. App. 3d 830, 835.) An instrument is ambiguous if its language is reasonably susceptible to more than one interpretation, either because of indefiniteness or because a double meaning can be attached to the words. (Riney, 217 Ill. App. 3d at 444.) However, a contract is not ambiguous if a court can ascertain its meaning from the general language of the contract. Furthermore, it will not be rendered ambiguous simply because the parties do not agree on the meaning of its terms. (Village of Glenview v. Northfield Woods Water & Utility Co. (1991), 216 Ill. App. 3d 40, 48.) When the terms of the instrument are clear and unambiguous, extrinsic evidence is inadmissible because the instrument itself is the sole determinant of the parties’ intentions. (Haisma, 218 Ill. App. 3d at 87.) Where a court determines that an ambiguity does exist, however, parol evidence may be introduced by the parties in ascertaining the true meaning of the contract. Quake, 141 Ill. 2d at 288; see also Riney, 217 Ill. App. 3d at 442-44.

We find the language “termination of tenancy” in the order unambiguous on its face. The term “tenancy” is defined as the period of a tenant’s possession or occupancy. (Black’s Law Dictionary 1465 (6th ed. 1990).) Furthermore, the order was entered pursuant to a forcible entry and detainer proceeding, the distinctive purpose of which is to determine the party entitled to possession of the premises. (Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 255.) In this context, the termination of a tenancy is a termination of the tenant’s right of possession in the property or, put another way, the termination of privity of estate between the landlord and tenant. It is not an adjudication of one’s rights under a lease contract and does not terminate the privity of contract between the landlord and tenant when the lease contains a provision to the contrary. (See Munroe v. Brower Realty & Management Co. (1990), 206 Ill. App. 3d 699, 704.) Therefore, the court erred by finding the language “termination of tenancy” ambiguous and considering the affidavits in interpreting the language of the agreed order.

However, even if the language of the contract was ambiguous, thus permitting the introduction of extrinsic evidence, our result would be the same. Teresa L. Einarson, counsel for defendants in the forcible entry and detainer proceeding, stated in her affidavit that she proposed the settlement and understood its terms to be as follows:

“(b) Defendants would pay the past due rent and the March, 1990 rent as per an agreed payment schedule;
* * *
(d) The lease and thereby all underlying obligations pursuant to the lease would terminate upon payment of the past due rent and March 1990 rent.”

The order, however, noticeably lacks any language concerning rent payments for the balance of the leasehold. If we accept defendants’ contention that the agreed order terminated the lease, we question why the clear and unambiguous language quoted above was not incorporated into the order, especially since the terms of Ms. Einarson’s rejected settlement offer specified that the lease was to be terminated. Instead, the order states that the tenancy, not the lease, was terminated. Because a strong presumption exists against provisions which could have easily been included in the agreement (Prime Group, Inc. v. Northern Trust Co. (1991), 215 Ill. App. 3d 1065, 1069), we find that the parties incorporated the language “termination of tenancy” into the order because they understood that the lease would remain in effect.

Furthermore, once the trial court determined the order to be ambiguous, it was improper to dismiss the cause. By finding the language of the order ambiguous, the trial court created a question of fact as to the true intent of the parties when the order was entered. When the language of a contract is ambiguous regarding the parties’ intent, the interpretation of the language is a question of fact which the circuit court cannot properly determine on a motion to dismiss. (Quake, 141 Ill. 2d at 289.) Because the affidavits contained disputed facts, at the very least, plaintiff was entitled to an evidentiary hearing to present any evidence which may have been helpful for the court. (Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 703-04.) Because in this case, the affidavits presented to construe the terms of the order also contained disputed facts, the court erred in disposing of the motion based solely on the affidavits.

Moreover, affidavits in support of section 2 — 619 motions are controlled by Supreme Court Rule 191, which provides that the affidavit “shall not consist of conclusions but of facts admissible in evidence.” (134 Ill. 2d R. 191(a).) The attorneys in the forcible entry and detainer proceeding were not parties to the agreed order, and, consequently, their state of mind is totally irrelevant. Further, the attorneys’ statements concerning what the parties intended were strictly opinions and not admissible evidence. (See Protective Insurance Co. v. Coleman (1986), 144 Ill. App. 3d 682, 687.) Although the attorneys were entitled to render factual statements concerning their participation in negotiations for the parties, they are incompetent to testify as to the parties’ intent. The conclusional statements by the attorneys concerning the intent of the parties should have been stricken. Accordingly, we find the dismissal was not supported by sufficient evidence.

Finally, because we have determined that the lease contract has not been terminated through the forcible entry and detainer proceeding, LRSL remains in privity of contract with plaintiff. Thus, plaintiff is not precluded from bringing a suit for breach of the terms of the lease. Defendants may counterclaim as to all matters not disposed of in the prior suit.

Accordingly, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings in conformance with this opinion.

Reversed and remanded.

GEIGER and NICKELS, JJ., concur.