text:
    Dorothy COLEMAN, Administrator of the Estate of Johnnie Russell III, Deceased, Plaintiff-Appellant, v. PROVENA HOSPITALS, d/b/a Provena Mercy Medical Center, Defendant-Appellee.
    No. 2-17-0313
    Appellate Court of Illinois, Second District.
    Opinion filed May 14, 2018 Modified upon denial of rehearing June 14, 2018
    Celestine Dotson, of St. Louis, Missouri, for appellant.
    Garrett L. Boehm Jr., Brian C. Fetzer, and Sammi L. Renken, of Johnson & Bell, Ltd., of Chicago, for appellee.
   JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 Johnnie Russell III was a patient of the defendant, Provena Hospitals, doing business as Provena Mercy Medical Center. The day after Russell was admitted, a nurse discovered that he had a gun. Shortly thereafter, during a confrontation with the Aurora Police Department, Russell was shot to death. The plaintiff, Dorothy Coleman, Russell's sister and the administrator of his estate, filed a wrongful-death action against the defendant, alleging that it was negligent in not searching Russell for weapons on the day he was admitted. The circuit court of Kane County subsequently granted the defendant's motion for summary judgment, finding that the plaintiff could not establish that the defendant had proximately caused Russell's death, because there was no evidence that Russell had a gun when he was admitted. For the reasons that follow, we reverse and remand for additional proceedings.

¶ 2 BACKGROUND

¶ 3 In November 2006, Russell was shot to death after he pulled a gun and engaged in a confrontation with Aurora police officers while being evaluated at the defendant's hospital. The plaintiff initially filed suit against both the Aurora Police Department and the defendant in federal court, but she later voluntarily dismissed that action as to the defendant. In 2011, the plaintiff filed a wrongful-death action against the defendant in the circuit court of Kane County. The complaint alleged that the defendant's agents and employees were aware of Russell's "mentally defective condition and prior psychiatric history" but failed to conduct a reasonable search to determine whether Russell possessed any contraband that could cause harm to himself or others.

¶ 4 In December 2011, the defendant filed its answer, asserting the affirmative defense of comparative negligence and alleging that one or more of Russell's acts "was the proximate cause of his death." Specifically, the defendant asserted that Russell "came to Provena Mercy Medical Center of his own accord carrying an inherently dangerous weapon, namely a gun." The affirmative defense further alleged that the defendant was entitled to offset any judgment in favor of the plaintiff by "an amount commensurate with [Russell's] own degree of comparative negligence." The plaintiff did not file an answer to the affirmative defense.

¶ 5 During the pretrial proceedings, the defendant filed a motion for summary judgment, arguing that there was no evidence that its acts or omissions were a proximate cause of Russell's death. On July 1, 2014, the trial court (Judge F. Keith Brown) denied the motion, noting the submission of evidence that agents of the defendant had been aware that Russell was exhibiting "paranoid, psychotic, and aggressive behavior" and knew of his psychiatric history, which included a report that he had threatened to kill his neighbors with his guns; had already sedated Russell once after he became aggressive with staff and had decided to transfer him to the behavioral health unit; and had had Russell remove his clothing and don a hospital gown but had failed to check his belongings for items that could cause harm to Russell or others. The trial court found that this evidence presented a genuine dispute as to whether the conduct of the defendant's agents was a "substantial factor or a material element in bringing about" (i.e. , a proximate cause of) Russell's death. The case was given a trial date of November 17, 2014, with a pretrial conference to be held on November 6. On October 22, 2014, the defendant filed a motion to deem its affirmative defense admitted, on the basis that the plaintiff had not filed an answer denying it.

¶ 6 On October 23, 2014, the trial court (Judge Thomas Mueller) granted the defendant's motion to deem the affirmative defense admitted. The defendant subsequently filed a motion for judgment on the pleadings, arguing that, as the affirmative defense had been deemed admitted, the plaintiff could not establish that any of the defendant's conduct was the proximate cause of Russell's death. On November 6, the trial court granted the defendant's motion and entered judgment on the pleadings in favor of the defendant. Following the denial of her motion to reconsider, the plaintiff appealed.

¶ 7 On December 18, 2015, this court reversed the trial court's judgment and remanded for additional proceedings. Coleman v. Provena Hospitals , 2015 IL App (2d) 150368-U, 2015 WL 9274045 ( Coleman I ). We explained that, read liberally, the plaintiff's complaint alleged that Russell was suffering from an impaired mental state at the time of the incident. Specifically, it alleged that, when Russell was admitted to the hospital, he was "suffering from conditions including altered mental stability, * * * speech and language deficits, paranoid personality and Dilantin toxicity." The complaint also alleged that Russell was in the process of being transferred from the emergency room to the behavioral health unit. These allegations of an impaired mental state controverted the affirmative defense's allegations that Russell was acting "knowingly" or "willfully" during the incident. They also raised a fair question as to whether Russell was able to appreciate the consequences of his actions at the time, the recklessness and dangerousness of those actions, and the need to follow the orders of medical personnel and the police. Thus, we held, the trial court erred in finding that the allegations of the affirmative defense regarding Russell's mental state had been admitted. Id. ¶ 19.

¶ 8 We also found that, to the extent that the affirmative defense alleged that Russell's actions amounted to comparative negligence and were "the proximate cause of his death," those allegations were conclusions that were not admitted by the failure to reply. We further found, however, that the plaintiff did admit certain factual allegations, specifically that Russell came to the hospital while carrying a gun on his person and that he took hospital staff and patients hostage. Id. ¶¶ 20-21.

¶ 9 Pursuant to Illinois Supreme Court Rule 366(b) (eff. Feb. 1, 1994), we modified the trial court's order of October 23, 2014, to deem admitted only the affirmative defense's allegations of fact that did not relate to the defendant's mental state and were not conclusory. Based on the modified trial court order, we held that the trial court erred in determining that the admission of those facts mandated the entry of judgment on the pleadings in favor of the defendant. Coleman I , 2015 IL App (2d) 150368-U, ¶¶ 22, 25.

¶ 10 Following remand, on February 2, 2017, the defendant filed a motion for summary judgment on the basis that the plaintiff had failed to present evidence to support the element of proximate cause. The defendant asserted that there was no evidence that the defendant had a gun when he was admitted, as it was just as plausible that he obtained the gun sometime later. In response, the plaintiff argued that questions of material fact remained that precluded the entry of summary judgment. In support of her response, the plaintiff relied on the 2013 opinions and deposition testimony of her expert, Timothy Hawkins. Hawkins stated that the defendant had a policy to search for contraband when a patient was admitted to the behavioral health unit. Hawkins opined that the defendant should have adhered to that policy throughout the medical center. Hawkins opined that, if the defendant's staff had done that, they would have found the gun and confiscated it pursuant to the "Custody of Firearms Presented at Provena Mercy Center" policy and Russell would be alive today.

¶ 11 On April 6, 2017, the trial court (Judge Mark Pheanis) granted the defendant's motion for summary judgment, holding that there was no evidence that would allow the plaintiff to establish proximate cause. The trial court explained:

"We do not have any evidence, number one, that had the Mercy mental health rules and regulations for a search been followed, that this particular weapon would have been found. And the crux of this case, according-and it's really a case that comes down to the expert testimony, is that there shouldn't have been this binary set of rules. The search should have been followed in the emergency room for someone who exhibited the type of presentation that the decedent did. And the problem we have with that is, without evidence as to whether that search would have disclosed the weapon, there is no proximate cause. And a jury is going to have to speculate as to whether that would have occurred.
Tie in, in addition to that, the fact that we don't know-we don't have any evidence that the gun was in his possession at the time he came into the hospital as opposed to being provided to him later, and I know that's, that's a difficult-it's a difficult ruling, but I can't allow a jury to simply use speculation, conjecture, or guess to make those conclusions that are really necessary. And that's why I asked the question, are there any facts, do we have any facts whatsoever, and would the Mercy mental health policy have revealed that. And the only way I can see that it would reveal that is if it required strip search or some type of metal detector/wanding-type thing.
Without those two actions, simply asking someone if he has a weapon, simply asking someone to empty their pockets, and relying on the compliance of the patient isn't going to necessarily solve this particular situation."

¶ 12 Following the trial court's ruling, the plaintiff filed a timely notice of appeal.

¶ 13 ANALYSIS

¶ 14 On appeal, the plaintiff argues that the trial court erred in granting the defendant's motion for summary judgment, because a question of fact remains as to whether the gun would have been recovered from the defendant had a proper search been conducted. In response, the defendant maintains that summary judgment in its favor was proper because, not only did its actions not proximately cause Russell's death, it owed no duty to Russell to protect him from his own criminal acts. The defendant further argues that summary judgment was proper because the plaintiff cannot recover any damages that were based on Russell's criminal acts.

¶ 15 The purpose of a motion for summary judgment is to determine whether a genuine issue of material fact exists ( People ex rel. Barsanti v. Scarpelli , 371 Ill. App. 3d 226, 231, 308 Ill.Dec. 647, 862 N.E.2d 245 (2007) ), and such a motion should be granted only when "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" ( 735 ILCS 5/2-1005(c) (West 2016) ). In determining the existence of a genuine issue of material fact, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent. Purtill v. Hess , 111 Ill. 2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986). Summary judgment may be granted only where the facts are susceptible to a single reasonable inference. Consolino v. Thompson , 127 Ill. App. 3d 31, 33, 82 Ill.Dec. 160, 468 N.E.2d 422 (1984). An order granting summary judgment should be reversed if the evidence shows that a genuine issue of material fact exists or if the judgment is incorrect as a matter of law. Clausen v. Carroll , 291 Ill. App. 3d 530, 536, 225 Ill.Dec. 692, 684 N.E.2d 167 (1997). We review de novo the trial court's grant of a motion for summary judgment. AUI Construction Group, LLC v. Vaessen , 2016 IL App (2d) 160009, ¶ 16, 409 Ill.Dec. 288, 67 N.E.3d 500.

¶ 16 In order to succeed in a negligence action, the plaintiff must prove three elements: (1) the defendant owed a duty of care, (2) the defendant breached that duty, and (3) the plaintiff's resulting injury was proximately caused by the breach. Espinoza v. Elgin, Joliet & Eastern Ry. Co. , 165 Ill. 2d 107, 114, 208 Ill.Dec. 662, 649 N.E.2d 1323 (1995). Whether the defendant owed a duty to the plaintiff is a question of law, to be decided by the court. Id. Whether the defendant breached its duty and whether the breach was the proximate cause of the injury are factual questions, for a jury to decide, as long as there is a genuine issue of material fact about breach and causation. Stanphill v. Ortberg , 2017 IL App (2d) 161086, ¶ 30, 418 Ill.Dec. 968, 91 N.E.3d 928.

¶ 17 The defendant's argument that it did not owe Russell a duty to protect him is without merit. A court will find a duty where a plaintiff and a defendant stand in such a relationship to one another that the law imposes upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. Simpkins v. CSX Transportation, Inc. , 2012 IL 110662, ¶¶ 18-21, 358 Ill.Dec. 613, 965 N.E.2d 1092. The "relationship" referred to in this context acts as a shorthand description for the sum of four factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant. Id. The determination of such a "relationship," as sufficient to establish a duty of care, requires considerations of policy inherent in these four factors, and the weight accorded each factor in any given analysis depends on the circumstances of the case at hand. Id. It has long been recognized, however, that hospitals are under a duty to exercise reasonable care to protect their patrons from harm. Darling v. Charleston Community Memorial Hospital , 33 Ill. 2d 326, 331, 211 N.E.2d 253 (1965) ; Stearns v. Ridge Ambulance Service, Inc. , 2015 IL App (2d) 140908, ¶ 16, 392 Ill.Dec. 457, 32 N.E.3d 765 ; Stogsdill v. Manor Convalescent Home, Inc. , 35 Ill. App. 3d 634, 662, 343 N.E.2d 589 (1976).

¶ 18 The defendant insists that it owed no legal duty to Russell, because the harm that befell him was not reasonably foreseeable. The defendant maintains that it was not foreseeable that Russell would engage in a series of bizarre acts that would ultimately result in his being shot and killed by police officers.

¶ 19 Arguably, the defendant here is improperly positing a "fact-specific formulation of duty." Stearns , 2015 IL App (2d) 140908, ¶ 15, 392 Ill.Dec. 457, 32 N.E.3d 765. In any event, the defendant's argument is undermined by its policy to search people going into its behavioral health unit. The apparent purpose of this policy is to prevent patients who are possibly mentally ill from harming themselves or others. Based on the existence of this policy, it was reasonably foreseeable that someone would be injured if the policy were not adhered to. Hawkins asserted that there was no reason why the policy should not exist throughout the hospital. We believe that the allegations of the plaintiff's complaint sufficiently established that the defendant owed Russell a duty to protect him from harming himself or someone else.

¶ 20 We next turn to proximate cause. There are two requirements for a showing of proximate cause: cause in fact and legal cause. Lee v. Chicago Transit Authority , 152 Ill. 2d 432, 455, 178 Ill.Dec. 699, 605 N.E.2d 493 (1992) ; see also Knauerhaze v. Nelson , 361 Ill. App. 3d 538, 548-49, 296 Ill.Dec. 889, 836 N.E.2d 640 (2005). At issue in this case is cause in fact. Cause in fact looks for sufficient facts to establish a reasonable certainty that a wrongdoer's conduct caused the damages involved. Lee , 152 Ill. 2d at 455, 178 Ill.Dec. 699, 605 N.E.2d 493.

¶ 21 The trial court essentially found that cause in fact did not exist, because there was no evidence presented that, had Russell been searched, the gun would have been discovered. We disagree. Hawkins testified that, if Russell had been searched, there was a high probability that the gun would have been found. This testimony is consistent with what the defendant alleged in its affirmative defense and what in Coleman I we found the plaintiff to have admitted: Russell had the gun with him when he entered the defendant's care. The trial court's suggestion that it was possible that Russell got the gun sometime after he was admitted was therefore both improper speculation ( Harris Trust & Savings Bank v. Otis Elevator Co. , 297 Ill. App. 3d 383, 394, 231 Ill.Dec. 401, 696 N.E.2d 697 (1998) ) and contrary to the law of the case ( Radwill v. Manor Care of Westmont, IL, LLC , 2013 IL App (2d) 120957, ¶ 8, 369 Ill.Dec. 452, 986 N.E.2d 765).

¶ 22 Furthermore, Hawkins' testimony supported another causal link: if the defendant's staff had removed the gun from Russell, he would not have engaged in the altercation with the police that resulted in his death. Thus, through Hawkins' testimony, the plaintiff presented enough evidence to raise a genuine issue concerning cause in fact.

¶ 23 The defendant insists that there is no evidence that, had Russell been searched, (1) Russell would have voluntarily yielded possession of the gun or (2) the gun would have been confiscated without conflict. Both of those arguments might be true. However, those arguments should be directed to the trier of fact, not this court, as we cannot say as a matter of law and based on the evidence in the record that any search of Russell would have been pointless and would not have prevented his untimely death.

¶ 24 In so ruling, we find the defendant's reliance on Schuler v. Mid-Central Cardiology , 313 Ill. App. 3d 326, 335, 246 Ill.Dec. 163, 729 N.E.2d 536 (2000), to be misplaced. In that medical malpractice case, the plaintiff alleged that one doctor had gotten a second doctor to alter his diagnosis of the decedent. Id. at 334, 246 Ill.Dec. 163, 729 N.E.2d 536. The plaintiff, however, presented no direct or circumstantial evidence to support that allegation. Id. at 336, 246 Ill.Dec. 163, 729 N.E.2d 536. On review, the appellate court held that the trial court had properly instructed the jury to disregard a third doctor's testimony regarding the possibly changed diagnosis, because that testimony was based on nothing but conjecture. Id. at 335-36, 246 Ill.Dec. 163, 729 N.E.2d 536. Here, unlike in Schuler , there was sufficient evidence to support the plaintiff's theory that the defendant's failure to search Russell when he was admitted caused or contributed to Russell's death.

¶ 25 We are also unpersuaded by the defendant's argument that it cannot be liable for Russell's death because the police officers' response to Russell's actions was the superseding proximate cause of Russell's death. The negligence of a defendant will not constitute a proximate cause of a plaintiff's injuries if some intervening act supersedes the defendant's negligence, but if the defendant could reasonably foresee the intervening act, that act will not relieve the defendant of liability. Bentley v. Saunemin Township , 83 Ill. 2d 10, 15, 46 Ill.Dec. 129, 413 N.E.2d 1242 (1980). Again, the ostensible reason for searching some patients before they entered the hospital was to protect them from being harmed or harming others. Thus, it was reasonably foreseeable to the defendant that, if it did not search Russell before he was admitted to the hospital, he might be harmed. That the defendant could not necessarily foresee the specific harm that would befall Russell is of no significance. See Colonial Inn Motor Lodge, Inc. v. Gay , 288 Ill. App. 3d 32, 45, 223 Ill.Dec. 674, 680 N.E.2d 407 (1997) (although the foreseeability of an injury will establish the legal-cause prong of proximate cause, the extent of the injury or the exact way in which it occurs need not be foreseeable).

¶ 26 Finally, we consider the defendant's argument that the plaintiff cannot recover for damages arising from Russell's criminal acts. As the defendant did not raise this argument in the trial court, it is forfeited. Mabry , 2012 IL App (1st) 111464, ¶ 15, 362 Ill.Dec. 1, 972 N.E.2d 716. Even overlooking forfeiture, the defendant's argument is without merit. Relying on Reed v. Witvoet , 311 Ill. App. 3d 735, 740, 243 Ill.Dec. 954, 724 N.E.2d 553 (2000), the defendant insists that a party cannot recover if his own illegal acts contributed to his damages. Reed , however, actually undermines the defendant's argument. In that case, a 13-year-old minor died in a farm accident. The defendant had hired the minor at the request of one of the plaintiffs, the minor's father. Id. at 736, 243 Ill.Dec. 954, 724 N.E.2d 553. The minor's father also transported the minor to the workplace. The minor's estate, consisting of his parents and his brother, filed a complaint against the defendant. Id. The defendant filed a motion for summary judgment, alleging that the plaintiffs had violated the Child Labor Law ( 820 ILCS 205/19 (West 1992) ) when they allowed the defendant to employ the minor and that such conduct barred them from any recovery. Relying on Newton v. Illinois Oil Co. , 316 Ill. 416, 147 N.E. 465 (1925), the trial court granted summary judgment, finding that the parents were prohibited from recovering damages by their participation in the minor's illegal employment. Reed , 311 Ill. App. 3d at 737, 243 Ill.Dec. 954, 724 N.E.2d 553. The trial court further found that the minor's brother could not recover where the parents' illegal act was a contributing cause of the death. Id.

¶ 27 On appeal, the reviewing court affirmed the trial court's judgment as to the minor's parents but not as to his brother. Id. at 740, 243 Ill.Dec. 954, 724 N.E.2d 553. The reviewing court found that Newton remained good law as to the minor's parents. Id. However, in Nudd v. Matsoukas , 7 Ill. 2d 608, 615-16, 131 N.E.2d 525 (1956), the supreme court had reexamined the principles underlying Newton and held that public policy did not require barring an entire action simply because one beneficiary of the decedent's estate contributed to the injury. Reed , 311 Ill. App. 3d at 740, 243 Ill.Dec. 954, 724 N.E.2d 553. Based on Newton and Nudd , the reviewing court held that, although the parents were barred from recovering damages, due to their violation of the Child Labor Law, that violation did not defeat the estate's ability to recover in a wrongful-death action arising out of the violation. Id.

¶ 28 Here, there is nothing in the record to suggest that the plaintiff gave Russell the gun that he possessed at the hospital. Although the trial court found that it was possible that the gun was provided to Russell after he was admitted to the hospital, as noted earlier that finding was improper as it was contrary to the law of the case. See Radwill , 2013 IL App (2d) 120957, ¶ 8, 369 Ill.Dec. 452, 986 N.E.2d 765. Accordingly, absent any evidence that the plaintiff contributed to Russell's deadly altercation with the police, she is not barred from pursuing her action against the defendant. See Reed , 311 Ill. App. 3d at 740, 243 Ill.Dec. 954, 724 N.E.2d 553.

¶ 29 At oral argument, the defendant refined its argument to emphasize that, because of Russell's criminal conduct, the plaintiff cannot recover on his behalf. In making this argument, the defendant relies on Castronovo v. Murawsky , 3 Ill. App. 2d 168, 120 N.E.2d 871 (1954). There, the decedent died after she consented to an illegal abortion that was negligently performed upon her. This court found that the decedent's estate was barred from any recovery based on the decedent's own "immoral or illegal act." Id. at 170-71, 120 N.E.2d 871. Castronovo is readily distinguishable from the case at bar. In that case, there is no indication that the decedent was suffering from any mental illness that impacted her judgment when she committed an illegal act. Conversely, in the instant case, and as the defendant acknowledges, Russell was acting with "a history of psychological difficulties" when he engaged in his fatal confrontation with the Aurora police. Russell's sanity at the time of the confrontation is therefore crucial in determining whether his actions were criminal. See 720 ILCS 5/6-2(a) (West 2016) ("A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity to appreciate the criminality of his conduct."). As questions of one's sanity and mental health are questions of fact and within the exclusive purview of the finder of fact ( People v. McCullum , 386 Ill. App. 3d 495, 504, 325 Ill.Dec. 248, 897 N.E.2d 787 (2008) ), Russell's possibly criminal conduct is not a basis on which to affirm the trial court's order of summary judgment.

¶ 30 CONCLUSION

¶ 31 For the reasons stated, the judgment of the circuit court of Kane County is reversed and the cause is remanded for additional proceedings.

¶ 32 Reversed and remanded.

Justices Zenoff and Burke concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Peter Smith ELY, as Executor and Successor Trustee of the MSA Trust; The MSB Trust; The Cade Family Trust; and The Mary Cade Smith Trust; Peter Smith Ely, as Successor Trustee of the Mary Cade Smith Declaration of Trust of 1985; Peter Smith Ely; Bruce Graham Ely; Susan Burch; Karen Anderson Davis; Steven J. Anderson ; and Stanley G. Cade, Plaintiffs-Appellants v. Ruth PIVAR, DLA Piper, LLP, Ungaretti & Harris, Quarles and Brady, LLP, Robert Wilneff, CBIZ MHM, LLC, Mayer Hoffman McCain, P.C., and William Paul Rogers, Defendants
    (Quarles and Brady, LLP, Defendant-Appellee).
    No. 1-17-0626
    Appellate Court of Illinois, First District, Fourth Division.
    Order filed May 24, 2018
    Konicek & Dillon, of Geneva (Daniel F. Konicek, Amir R. Tahmassebi, and Andrew M. Cook, of counsel), for appellants.
    Stamos & Trucco, LLP, of Chicago (Michael T. Trucco and Megan T. Hughes, of counsel), for appellee.
   PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 On August 17, 2015, plaintiffs filed a complaint in the circuit court of Cook County naming, among others, Ruth Pivar and Quarles and Brady, LLP (Quarles and Brady) as defendants. Quarles and Brady filed a motion to dismiss and, in response, plaintiffs filed an amended complaint. The allegations in plaintiffs' first amended complaint (FAC) related to five trusts that were created in 1966 by Wilmuth and Carroll Cade. Plaintiffs are the current executor of the trusts and the beneficiaries of at least one of the five trusts. Mary Cade Smith was an initial beneficiary of each of the five trusts. The gravamen of plaintiffs' first amended complaint relates to misconduct by Philip Rootberg, the initial trustee of the five trusts; Robert Wilneff, who became the trustee of the five trusts in 2001; Pivar, who was retained as counsel for the trusts in 2001; and Cade Smith. Plaintiffs alleged in the complaint that prior to Cade Smith's death in 2014, Wilneff, Pivar, Cade Smith, and defendant William Paul Rogers improperly disbursed the trusts' assets through promissory notes and gifts to Cade Smith. Plaintiffs contended that the entirety of the trusts' assets were disbursed to Cade Smith by 2009, before the other beneficiaries were ever informed of their beneficiary status.

¶ 2 Specifically, with regard to Pivar, plaintiffs contended, inter alia , that she failed to disclose the breaches of fiduciary duty by Rootberg and Wilneff, that she failed to advise the other trust beneficiaries of their beneficiary status, that she represented Cade Smith to the detriment of the trusts' other beneficiaries, and that she made false representations regarding the trusts in Cade Smith's will. Plaintiffs contended that Pivar joined Quarles and Brady in 2013, and that the law firm was, therefore, vicariously liable for her misconduct. As such, plaintiffs alleged claims of legal malpractice (count II), breach of fiduciary duty (count III), and conspiracy (count V) against Quarles and Brady.

¶ 3 Quarles and Brady filed a motion to dismiss the claims against it in plaintiffs' FAC pursuant to section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2014) ). The court granted that motion with prejudice with regard to plaintiffs' claim for legal malpractice, but without prejudice for plaintiffs' claims for breach of fiduciary duty and conspiracy. The court held, however, that plaintiffs would be required to seek leave of court before repleading its claims for breach of fiduciary duty and conspiracy against Quarles and Brady. Plaintiffs filed a motion for leave to amend the complaint, and attached a proposed second amended complaint (SAC), which included a single claim against Quarles and Brady for breach of fiduciary duty. The circuit court denied plaintiffs' motion for leave to amend, and found that there was "no just reason to delay enforcement or appeal of this order pursuant to Rule 304(a) [ ( Ill. S. Ct. R. 304 (eff. Mar. 8, 2016) ) ]."

¶ 4 On appeal, plaintiffs contend that the court abused its discretion in denying their motion to file the amended claim against Quarles and Brady where the proposed SAC cured the defects of the prior pleading. Plaintiffs also contend that the court erred in granting Quarles and Brady's motion to dismiss the claims against it in the FAC. For the reasons that follow, we find that we lack jurisdiction to consider plaintiffs' claims regarding the dismissal of the FAC and the circuit court's order denying plaintiffs leave to file an amended complaint.

¶ 5 I. BACKGROUND

¶ 6 A. Plaintiffs' First Amended Complaint

¶ 7 In their FAC, plaintiffs contended that, in 1966, five trusts were created with Rootberg as the initial trustee. Cade Smith was named the initial beneficiary in each of the trusts. With the exception of one of the five trusts, each trust had at least one additional initial beneficiary. Plaintiffs asserted that by 1989, Cade Smith, with the assistance of Rootberg, began taking disbursements from the trusts without any notification to the other beneficiaries. Cade Smith continued receiving disbursements from the trust through 2001 when Rootberg retained Pivar as counsel. Plaintiff contended that, after being retained as counsel, Pivar knew that Cade Smith was receiving disbursements from the trusts, knew or should have known of the additional beneficiaries, and knew or should have known that the additional beneficiaries had not been informed of their beneficiary status. Despite this knowledge, Pivar did not notify any of the additional beneficiaries of Cade Smith's receipt of disbursements from the trusts or of their beneficiary status.

¶ 8 Later in 2001, Wilneff succeeded Rootberg as trustee. From 2003 to 2009, Cade Smith received more than $1.6 million from the trust. By 2009, the trusts' assets had been exhausted. During this period, neither Wilneff nor Pivar informed any of the other beneficiaries of their rights, or of Cade Smith's receipt of disbursements. In 2007, Pivar drafted a will for Cade Smith, which included an in terrorem clause, which excluded from the trusts any beneficiary who challenged the conduct of the trustees. Plaintiffs alleged that Pivar joined Quarles and Brady as "of counsel" in 2013. On May 1, 2014, Cade Smith passed away.

¶ 9 In their allegation for legal malpractice against Quarles and Brady, plaintiffs contended that Pivar-as an attorney for each of the five trusts and as an agent, employee, partner, or apparent agent of Quarles and Brady-had a duty to the beneficiaries. Plaintiffs contended that Pivar breached that duty by failing to disclose the breaches of fiduciary duty by Rootberg and Wilneff, failing to advise the additional beneficiaries of their beneficiary status under the trusts, putting the interests of herself and Quarles and Brady ahead of the interests of the additional beneficiaries, and falsely claiming that the other initial beneficiaries knew of the trusts and their beneficiary status. Plaintiffs contended that one or more of these breaches "were made, and perpetuated through December 23, 2014, so as to fraudulently conceal from the beneficiaries" their causes of action relating to the breaches. Plaintiffs contended that as a "direct and proximate result" of Pivar's breach of duty as an agent of Quarles and Brady, the trusts and the beneficiaries had been deprived the benefits of their status in an amount in excess of $2.8 million.

¶ 10 In contending that Quarles and Brady breached its fiduciary duty, plaintiffs contended that Pivar-as attorney for each of the five trusts and an agent or employee of Quarles and Brady-owed a fiduciary duty to the trusts and the intended beneficiaries. Plaintiffs contended that Pivar drafted a will for Cade Smith that included an in terrorem clause, which dissuaded the beneficiaries from challenging the actions of the trustees and also treated any beneficiary who did raise a challenge as having predeceased Cade Smith, which was a breach of her fiduciary duty.

¶ 11 Finally, plaintiffs alleged a count of conspiracy, contending that all defendants worked in concert to conceal from plaintiffs that they were the beneficiaries of the trusts and had a right to disbursements therefrom. Plaintiffs contended that Rogers, Pivar, and Wilneff discussed and agreed upon a course of conduct to conceal their improper disbursements to protect defendants from liability. Plaintiffs contended that Pivar knowingly acted in furtherance of that agreement by failing to disclose Rootberg's breach of fiduciary duty, failing to disclose Wilneff's breach of fiduciary duty, failing to advise the additional beneficiaries of their status as beneficiaries, falsely claiming that the other initial beneficiaries knew about the trusts, and failing to notify the additional beneficiaries after Cade Smith's death about the will and trusts. Plaintiffs contended that defendants undertook these illegal acts in furtherance of their conspiracy to conceal their wrongdoing from plaintiffs.

¶ 12 B. Quarles And Brady Motion to Dismiss

¶ 13 Quarles and Brady filed a motion to dismiss plaintiffs' complaint pursuant to section 2-615 of the Code. Quarles and Brady contended that plaintiffs failed to sufficiently allege facts establishing that an attorney-client relationship existed to support plaintiffs' claim for legal malpractice. Quarles and Brady contended that plaintiffs'

complaint alleged that Pivar did not join Quarles and Brady until 2013, years after any of the alleged misconduct took place. Quarles and Brady asserted that, in any event, Pivar's representation of the trusts did not create an attorney-client relationship between her and the trusts' beneficiaries. Quarles and Brady further contended that there were no facts alleging that any plaintiff had established an attorney-client relationship with the firm.

¶ 14 Quarles and Brady also contended that plaintiffs' claim for legal malpractice should be dismissed because plaintiffs failed to allege facts of any conduct by Pivar that breached a duty to plaintiffs after she joined Quarles and Brady in 2013. Quarles and Brady noted that plaintiffs sought to hold Quarles and Brady vicariously liable for Pivar's conduct because she was an agent of the firm, but plaintiffs failed to allege any conduct by Pivar that breached any duty after she joined the firm. Quarles and Brady finally contended that the court should dismiss plaintiffs' claim for legal malpractice because plaintiffs failed to plead any facts showing that Pivar's conduct after she joined Quarles and Brady proximately caused plaintiffs any harm. Quarles and Brady noted that plaintiffs contended that Pivar's misconduct took place between 2003 and 2009, and thus, any injury took place at least four years prior to Pivar joining Quarles and Brady.

¶ 15 Quarles and Brady further contended that plaintiffs' claim for breach of fiduciary duty should be dismissed because it was duplicative of the allegations raised in support of the claim for legal malpractice. Quarles and Brady asserted that both claims relied on the same set of operative facts and, in such a case, the claim for breach of fiduciary duty should be dismissed.

¶ 16 Finally, Quarles and Brady contended that plaintiffs failed to properly allege a claim for conspiracy against Quarles and Brady. Quarles and Brady asserted that under Illinois law, a conspiracy cannot exist between a principal and its agent. Quarles and Brady also asserted that plaintiffs failed to allege specific facts in support of its claim for civil conspiracy. Quarles and Brady contended that plaintiffs failed to allege any facts suggesting that any of the coconspirators agreed to commit a wrongful or unlawful act. Quarles and Brady contended that the circuit court should, therefore, dismiss plaintiffs' claims against Quarles and Brady.

¶ 17 C. The Circuit Court's Ruling

¶ 18 After a hearing on June 21, 2016, the court dismissed plaintiffs' claim for legal malpractice against Quarles and Brady with prejudice. The court dismissed without prejudice plaintiffs' claims for breach of fiduciary duty and conspiracy, but held that plaintiffs must seek leave of court before refiling those claims.

¶ 19 D. Plaintiffs' Second Amended Complaint

¶ 20 Following the circuit court's ruling, plaintiffs filed a motion for leave to amend the complaint, and attached a proposed SAC. In the proposed SAC, plaintiffs realleged several of their claims against the other defendants, but asserted a single claim against Quarles and Brady for breach of fiduciary duty. Plaintiffs contended that as an attorney of the trusts, Pivar-an agent, employee, partner, or apparent agent of Quarles and Brady-owed a fiduciary duty to the trusts and the intended beneficiaries of those trusts. Plaintiffs asserted that Pivar breached her fiduciary duty by failing disclose the prior breaches of fiduciary duty by Rootberg and Wilneff, putting her interests and the interests of Quarles and Brady ahead of the interests of the plaintiffs, and failing to notify the beneficiaries after Cade Smith's death of her will and the trusts. Plaintiffs maintained that "one or more" of these breaches were made "and perpetuated through December 23, 2014," so as to fraudulently conceal from the trusts' beneficiaries that they had a cause of action against Wilneff, Rootberg, and the other defendants.

¶ 21 E. Quarles and Brady's Response to Plaintiffs' Motion for Leave to Amend

¶ 22 Quarles and Brady filed a response to plaintiffs' motion for leave to amend in which it contended that plaintiff had failed to state of cause of action demonstrating that Quarles and Brady was vicariously liable for the actions of Pivar, its former agent. Quarles and Brady asserted that plaintiffs' claim for breach of fiduciary duty in the SAC merely restated the same allegations contained in plaintiffs' claim for legal malpractice in the FAC. Quarles and Brady also contended that plaintiffs failed to allege any new facts to demonstrate that Pivar's conduct while employed by Quarles and Brady proximately caused them any harm. Quarles and Brady noted that all of the factual allegations supporting this claim occurred years before Pivar was associated with Quarles and Brady.

¶ 23 F. The Circuit Court's Ruling

¶ 24 After a hearing on February 6, 2017, the court denied plaintiffs' motion for leave to amend and found that there was "no just reason to delay enforcement or appeal of this order pursuant to Rule 304(a)." Plaintiffs now appeal.

¶ 25 II. ANALYSIS

¶ 26 On appeal, plaintiffs contend that the circuit court abused its discretion in denying them leave to file the amended complaint against Quarles and Brady. Plaintiffs assert that the amended count directly addressed the court's dismissal for failure to state a claim, by alleging the necessary elements for a breach of fiduciary duty. In the alternative, plaintiffs contend that the court erred in granting Quarles and Brady motion to dismiss the FAC. Plaintiffs maintain that the allegations in the FAC properly stated a cause of action against Quarles and Brady and had sufficient factual support.

¶ 27 A. Jurisdiction

¶ 28 Initially, we observe that Quarles and Brady contends that we lack the jurisdiction to consider this appeal. Quarles and Brady asserts that we lack jurisdiction to review the court's order of February 6, 2017, denying plaintiffs leave to file an amended claim for breach of fiduciary duty, because an order denying leave to amend is not a final judgment conferring this court with jurisdiction to review the order under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). Quarles and Brady also asserts that we lack jurisdiction to review the circuit court's order of June 21, 2016, granting its motion to dismiss plaintiff's FAC because the court did not enter a Rule 304(a) finding to make the order appealable. Quarles and Brady maintains that we cannot review the dismissal of the claim for legal malpractice even though it was dismissed with prejudice because there was no specific Rule 304(a) finding. Quarles and Brady also maintains that we may not review the dismissal of the plaintiffs claims for conspiracy or breach of fiduciary duty because those claims were dismissed without prejudice, which is not a final judgment, and there was no Rule 304(a) finding.

¶ 29 1. Illinois Supreme Court Rule 304(a)

¶ 30 Generally, an appeal may be taken only after the circuit court has resolved all claims against all parties to a cause of action.

State Farm Fire & Casualty Co. v. John J. Rickhoff Sheet Metal Co. , 394 Ill. App. 3d 548, 556, 333 Ill.Dec. 158, 914 N.E.2d 577 (2009). However, Rule 304(a) governs appeals from final judgments that do not dispose of the entire proceeding in matters where there are multiple parties or claims. Matson v. Department of Human Rights , 322 Ill. App. 3d 932, 937, 255 Ill.Dec. 888, 750 N.E.2d 1273 (2001). Under Rule 304(a) :

"If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. * * * In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties." Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).

Rule 304(a) is intended to permit an appeal to be taken before the final disposition of the case only where the circuit court considers immediate appeal appropriate. Matson , 322 Ill. App. 3d at 937, 255 Ill.Dec. 888, 750 N.E.2d 1273. The decision to enter a Rule 304(a) finding is within the discretion of the trial court. Fremont Compensation Insurance Co. v. Ace-Chicago Great Dane Corp. , 304 Ill. App. 3d 734, 740, 237 Ill.Dec. 709, 710 N.E.2d 132 (1999).

¶ 31 2. Circuit Court's Order Dismissing FAC

¶ 32 We first address whether we have jurisdiction to consider plaintiffs' claims regarding the court's order of June 21, 2016, granting Quarles and Brady's motion to dismiss the claims against it in the FAC. In granting Quarles and Brady's motion, the court dismissed plaintiffs' legal malpractice claim with prejudice, but dismissed without prejudice plaintiffs' claims for breach of fiduciary duty and conspiracy. The court stated that plaintiffs would have to seek leave of court before attempting to replead these claims. Plaintiffs FAC consisted of several other claims and parties that were not addressed in Quarles and Brady's motion. The court's judgment, therefore, disposed of some of the claims in an action involving multiple parties and claims, but did not dispose of all the claims. Thus, Rule 304(a) was applicable, but the court did not enter the judgment with a specific Rule 304(a) finding. "In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable." Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Requiring the circuit court to make a specific Rule 304(a) finding "allows a circuit court to limit piecemeal appeals yet still allow early appeals when, in its discretion, doing so 'would have the effect of expediting the resolution of the controversy, would be fair to the parties, and would conserve judicial resources.' " Palmolive Tower Condominiums, LLC v. Simon , 409 Ill. App. 3d 539, 544, 350 Ill.Dec. 931, 949 N.E.2d 723 (2011) (quoting Matson , 322 Ill. App. 3d at 938, 255 Ill.Dec. 888, 750 N.E.2d 1273 ).

¶ 33 We find Paul H. Schwendener, Inc. v. Jupiter Electric Co. , 358 Ill. App. 3d 65, 293 Ill.Dec. 893, 829 N.E.2d 818 (2005), cited by Quarles and Brady, instructive on the issue before us. In Jupiter , plaintiff Schwendener filed an action against Jupiter Electric Company and other defendants regarding Jupiter's failure to perform on two construction contracts. Id. at 68, 293 Ill.Dec. 893, 829 N.E.2d 818. "During the course of litigation, the trial court entered several orders dismissing various counts of Schwendener's first, third, and fourth amended complaints pursuant to section 2-615 of the Code * * * ( 735 ILCS 5/2-615 (West 1998) ), granting summary judgment on count VI of its fifth amended complaint, and denying Schwendener leave to file certain counts of the fifth amended complaint." Jupiter , 358 Ill. App. 3d at 68, 293 Ill.Dec. 893, 829 N.E.2d 818. In the circuit court's final order of the trial, the court found that there was no just reason to delay enforcement or appeal of its orders pursuant to Rule 304(a). Id. at 70, 293 Ill.Dec. 893, 829 N.E.2d 818. On appeal, Schwendener sought review of counts from his complaints that were dismissed without prejudice and later repled in subsequent complaints. Id. at 73, 293 Ill.Dec. 893, 829 N.E.2d 818. This court found that it lacked jurisdiction to consider these contentions because an order dismissing an action "without prejudice" is not a final judgment subject to appeal under Rule 304(a). Id. The court's decision was not altered by the fact that the circuit court included Rule 304(a) language in its order. Id.

¶ 34 Here, the circuit court dismissed plaintiffs' claim for breach of fiduciary duty without prejudice and granted plaintiffs the opportunity to replead that count with leave of court. The court did not include Rule 304(a) language in its order dismissing the count in plaintiffs' FAC. Thus, this was not an appealable order pursuant to Rule 304(a). Id. ; Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Although plaintiffs later sought to replead this count in their SAC amended complaint, as this court found in Jupiter , we lack jurisdiction to consider counts dismissed without prejudice in previous complaints even where those counts are later repled in subsequent complaints. Jupiter, 358 Ill. App. 3d at 73, 293 Ill.Dec. 893, 829 N.E.2d 818.

¶ 35 Similarly, the circuit court dismissed plaintiffs' claim for conspiracy without prejudice, and granted plaintiffs the opportunity to replead that count with leave of court. As discussed, this dismissal did not include a Rule 304(a) finding and was without prejudice. Accordingly, this was not an appealable order pursuant to Rule 304(a). Id. ; Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Thus, the court's orders dismissing plaintiffs' claims for breach of fiduciary duty and conspiracy were not final orders subject to Rule 304(a), and we lack jurisdiction to consider plaintiffs' arguments regarding those counts on appeal. Jupiter , 358 Ill. App. 3d at 82, 293 Ill.Dec. 893, 829 N.E.2d 818 (citing Branch v. European Autohaus, Ltd. , 97 Ill. App. 3d 949, 952, 53 Ill.Dec. 593, 424 N.E.2d 6 (1981) ).

¶ 36 Although the court dismissed plaintiffs' count for legal malpractice with prejudice, which is a final order, the court did not enter the requisite Rule 304(a) finding making the dismissal of that count final and appealable. Id. "Reviewing courts in Illinois have consistently dismissed appeals from orders that disposed of fewer than all the parties or claims yet lacked a finding that there was no just reason to delay enforcement or appeal" in accordance with Rule 304(a). Bank of Matteson v. Brown , 283 Ill. App. 3d 599, 603, 218 Ill.Dec. 825, 669 N.E.2d 1351 (1996). " '[T]he absence of a Rule 304 finding in a judgment-for whatever reason-leaves the judgment final but unenforceable and unappealable.' " (Internal quotation marks omitted.) Marble Emporium, Inc. v. Vuksanovic , 339 Ill. App. 3d 84, 90, 273 Ill.Dec. 915, 790 N.E.2d 57 (2003) (quoting Bank of Matteson , 283 Ill. App. 3d at 603, 218 Ill.Dec. 825, 669 N.E.2d 1351 ).

¶ 37 The fact that the trial court entered a Rule 304(a) finding on the order entered on February 6, 2017, denying plaintiffs' leave to amend, does not alter our decision.

D'Attomo v. Baumbeck , 2015 IL App (2d) 140865, ¶ 27, 394 Ill.Dec. 601, 36 N.E.3d 892 ; see also Marble Emporium , 339 Ill. App. 3d at 91, 273 Ill.Dec. 915, 790 N.E.2d 57 (holding that the appellate court lacked jurisdiction under Rule 304(a) where the circuit court's order did not include Rule 304(a) language even where the court subsequently entered an order "purporting to add the missing Rule 304(a) language"); Jupiter , 358 Ill. App. 3d at 82, 293 Ill.Dec. 893, 829 N.E.2d 818 (finding that where the circuit court's initial order, dismissing some counts of the complaint with prejudice and other counts of the complaint without prejudice with leave to amend, did not include Rule 304(a) language, the court's subsequent order denying leave to amend, which did include Rule 304(a) language, did not confer jurisdiction to review the initial order). Thus, we find that we lack jurisdiction to consider plaintiffs' contentions regarding the court's order of June 21, 2016, granting Quarles and Brady's motion to dismiss the FAC.

¶ 38 3. Circuit Court's Order Denying Leave to Amend

¶ 39 We next address whether we have jurisdiction to review the court's order of February 6, 2017, denying plaintiffs leave to amend the FAC. Under the Code, the trial court may allow amendments to the pleadings at "any time before final judgment * * * on just and reasonable terms * * * in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought." 735 ILCS 5/2-616 (West 2014). Here, in denying plaintiffs leave to file a second amended complaint, the court found that there was "no just reason to delay enforcement or appeal of this order pursuant to Rule 304(a)." An order or judgment is considered to be final and appealable for purposes of Rule 304(a) if it terminates the litigation between the parties on the merits or disposes of the rights of the parties, either with respect to the entire controversy or a separate part thereof. Blumenthal v. Brewer , 2016 IL 118781, ¶ 23, 410 Ill.Dec. 289, 69 N.E.3d 834. Ordinarily, however, an order denying leave to file an amended complaint does not constitute a final judgment. Jupiter , 358 Ill. App. 3d at 82, 293 Ill.Dec. 893, 829 N.E.2d 818 ; see also Gray v. Starkey , 41 Ill. App. 3d 555, 558, 353 N.E.2d 703 (1976) ("Trial orders allowing [citation] or denying [citation] leave to file an amended pleading are not final judgments.").

¶ 40 This is the case even where the circuit court makes a specific Rule 304(a) finding, as the court did in this case. Jupiter , 358 Ill. App. 3d at 82, 293 Ill.Dec. 893, 829 N.E.2d 818 ; Enblom v. Milwaukee Golf Development , 227 Ill. App. 3d 623, 627-28, 169 Ill.Dec. 703, 592 N.E.2d 190 (1992) ("Were this matter before us solely on the question of the propriety of the denial of leave to file an amended third-party complaint, we would be without jurisdiction since such a denial would not constitute a 'final judgment as to one or more but fewer than all of the parties or claims' [citation], notwithstanding the [ Rule] 304(a) language in the order."); see also Cinch Manufacturing Co. v. Rosewell , 255 Ill. App. 3d 37, 42, 194 Ill.Dec. 160, 627 N.E.2d 276 (1993) ("[h]owever, the denial of a motion to file an amended tax objection is not final and an appeal from such an order must be dismissed" despite the circuit court's Rule 304(a) finding). In other words, a court's Rule 304(a) finding cannot transform a nonfinal and nonappealable judgment into final and appealable one for purposes of Rule 304(a), merely by use of the operative finding.

¶ 41 As the court recognized in Jupiter , however, if we find that we have jurisdiction over the trial court's underlying order dismissing the counts which were sought to be amended, we may review the order denying leave to file with respect to those counts. Jupiter , 358 Ill. App. 3d at 82, 293 Ill.Dec. 893, 829 N.E.2d 818 (citing Enblom , 227 Ill. App. 3d at 628, 169 Ill.Dec. 703, 592 N.E.2d 190 ). As discussed above, however, we do not have jurisdiction to consider the trial court's underlying order dismissing the counts which were sought to be amended. Thus, we lack jurisdiction to consider this appeal.

¶ 42 Plaintiffs contend, however, that Quarles and Brady should be estopped from asserting that this court lacks jurisdiction on this basis because Quarles and Brady asked the circuit court to enter a Rule 304(a) finding. As the record shows, during the hearing on plaintiffs' motion for leave to amend, Quarles and Brady's counsel asked the court to deny the motion and "grant us 304(a) language." The court denied plaintiffs' motion and stated "304(a) language," and included the necessary Rule 304(a) language in its written order. Despite this request at the proceeding, Quarles and Brady now contends that the court's Rule 304(a) language was in error, and does not confer jurisdiction on this court. Plaintiffs contend, however, that Quarles and Brady's challenge to this ruling should be waived under the doctrine of invited error.

¶ 43 Under the doctrine of invited error, "a party cannot complain of error which that party induced the court to make or to which that party consented." In re Detention of Swope , 213 Ill. 2d 210, 217, 290 Ill.Dec. 232, 821 N.E.2d 283 (2004). The rule of invited error is a form of procedural default "sometimes described as estoppel." However, it is well-settled that appellate jurisdiction cannot be conferred by "laches, agreement, waiver or estoppel." (Emphasis omitted.) Bernstein & Grazian, P.C. v. Grazian & Volpe, P.C. , 402 Ill. App. 3d 961, 971, 341 Ill.Dec. 913, 931 N.E.2d 810 (2010) (citing Physicians Insurance Exchange v. Jennings , 316 Ill. App. 3d 443, 453, 249 Ill.Dec. 337, 736 N.E.2d 179 (2000) ). Accordingly, we find that we do not have jurisdiction to consider plaintiffs' appeal.

¶ 44 III. CONCLUSION

¶ 45 For the reasons stated, this appeal is dismissed.

¶ 46 Appeal dismissed.

Justices McBride and Gordon concurred in the judgment and opinion.

      Because the issues on appeal concern only plaintiffs' FAC and SAC, we will not discuss plaintiffs' original complaint.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terry JOHNSON, Defendant-Appellant.
    No. 1-15-3634
    Appellate Court of Illinois, First District, Second Division.
    Opinion filed May 29, 2018
    Michael J. Pelletier, Patricia Mysza, and Talon K. Nouri, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Matthew Connors, and Elizabeth Reilly, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 Terry Johnson and others planned to rob a video game store. After one of his companions used pepper spray to incapacitate the store clerk, Johnson tackled the clerk to the floor and struggled with him. They took the clerk's keys and several video game systems.

¶ 2 Before trial, Johnson requested a conference under Illinois Supreme Court Rule 402 (eff. July 1, 2012) to discuss a possible plea deal. The trial court offered Johnson a 13-year sentence, which Johnson rejected. After a bench trial, Johnson was convicted of armed robbery, and the trial court sentenced him to 16 years of imprisonment.

¶ 3 Johnson argues that he should not have been convicted of armed robbery because the pepper spray was not a "dangerous weapon" within the meaning of the armed robbery statute ( 720 ILCS 5/18-2 (West 2014) ). We reject this claim for the same reasons laid out in People v. Curry , 2018 IL App (1st) 153635, 423 Ill.Dec. 616, 105 N.E.3d 1024, a case involving the getaway driver. We also reject Johnson's argument that the trial court improperly increased his sentence from the rejected 13-year offer because nothing in the record makes it "clearly evident" that the sentence was imposed as punishment for rejecting the plea offer and exercising his right to a trial.

¶ 4 Background

¶ 5 Before trial, Johnson's counsel requested a Rule 402 conference with the trial court to discuss a potential plea bargain. The State asserted that Johnson and Curry committed the crime with possibly two accomplices and that Johnson "struggled" with a store employee after the employee was pepper sprayed. The State also noted that Johnson had four prior felony convictions (all for robbery or attempt robbery), and two juvenile adjudications, and offered Johnson an 18-year sentence. Johnson's counsel argued that Johnson was not alleged to have pepper sprayed the employee and had not been caught with any of the robbery's proceeds. Counsel also noted that Johnson was 22 years old and had been paroled for his previous felony sentences less than a year before the commission of this robbery. Counsel asked for a sentence of six to eight years. The trial court offered Johnson a sentence of 13 years, which Johnson rejected.

¶ 6 What follows repeats some of the "Background" section in Curry , 2018 IL App (1st) 153635, 423 Ill.Dec. 616, 105 N.E.3d 1024. At trial, Alonzo Mitchell, an employee of the Game Stop, described how he was working behind the counter when three men entered, wearing hooded sweatshirts. One man approached the counter and squirted pepper spray on him, another man (later identified as Johnson) went behind the counter and tackled Mitchell, and the first man squirted Mitchell again. The men took Mitchell's store keys and stole several video game systems.

¶ 7 Meanwhile, a coworker who had been hiding in the store's break room called police. An officer, who was nearby at the time of a police radio call for assistance, saw individuals come out of the store and get into a silver Pontiac. The officer followed the Pontiac, which was later found unoccupied and parked on a residential street. The backseat and trunk of the Pontiac contained several video game systems, as well as Mitchell's store keys. On the sidewalk nearby lay a hooded sweatshirt and a can of pepper spray. The car's registration revealed that a woman owned the car; she gave police the name of a potential suspect, Terry Johnson.

¶ 8 Johnson told police that he and some friends robbed the Game Stop store while Deontae Curry acted as getaway driver. Curry told police that his friends had planned only to shoplift while he waited in the car. The trial court was able to view the store's surveillance video, showing the robbery and Johnson's actions.

¶ 9 Johnson was convicted of armed robbery at a bench trial, with the trial court noting that the evidence showed the robbery was "preplanned" and "very methodical." At sentencing, defense counsel asked the trial court to give Johnson the 13-year sentence originally offered during the Rule 402 conference. The trial court rejected this, stating that it had offered that sentence before trial. At trial, "I hear[d] much more detail with regard to what happened and the sequence of the events, the planned nature of this, all the different steps that were involved here and I heard specifically about your role in this and I believe being one of the major actors in this particular situation." The trial court sentenced Johnson to 16 years.

¶ 10 Analysis

¶ 11 Is Pepper Spray a "Dangerous Weapon"?

¶ 12 Johnson, like his codefendant Curry, argues that he should have been found guilty of robbery, rather than armed robbery, because the pepper spray was not a "dangerous weapon" within the meaning of the armed robbery statute. See 720 ILCS 5/18-2(a)(1) (West 2014) (person commits armed robbery if he or she commits a robbery and carries, or is otherwise armed with, "a dangerous weapon other than a firearm"). We rejected this argument in Curry's appeal. See Curry , 2018 IL App (1st) 153635, 423 Ill.Dec. 616, 105 N.E.3d 1024.

¶ 13 The armed robbery statute leaves "dangerous weapon" undefined; the term is a holdover from common law. People v. Hernandez , 2016 IL 118672, ¶ 12, 402 Ill.Dec. 42, 51 N.E.3d 794. Johnson suggests that we should look to the armed violence statute for a definition of "dangerous weapon," but our supreme court already rejected that approach. Id. ¶ 16. What constitutes a "dangerous weapon" presents a question of fact, not law. People v. Ligon , 2016 IL 118023, ¶ 21, 400 Ill.Dec. 367, 48 N.E.3d 654. So we will review the claim under the familiar sufficiency of the evidence standard. See People v. Wheeler , 226 Ill.2d 92, 114, 313 Ill.Dec. 1, 871 N.E.2d 728 (2007) (when reviewing sufficiency of evidence, court considers whether, viewing evidence in light most favorable to State, any rational trier of fact could have found essential elements of crime beyond reasonable doubt).

¶ 14 "Dangerous weapon" includes "any object sufficiently susceptible to use in a manner likely to cause serious injury." Ligon , 2016 IL 118023, ¶ 22, 400 Ill.Dec. 367, 48 N.E.3d 654 (citing People v. Skelton , 83 Ill.2d 58, 66, 46 Ill.Dec. 571, 414 N.E.2d 455 (1980) ). This comprises not just objects that are per se dangerous, but objects that can be used in a dangerous manner. Hernandez , 2016 IL 118672, ¶ 12, 402 Ill.Dec. 42, 51 N.E.3d 794 ; see also People v. Dwyer , 324 Ill. 363, 365, 155 N.E. 316 (1927) (distinguishing between an object "made for the purpose of destroying life" and an object that is dangerous in "the manner of its use").

¶ 15 Pepper spray would not qualify as "per se dangerous," as a loaded handgun would. Rather, pepper spray falls into the category of objects that can be used in a dangerous manner, so it is for the trier of fact to determine whether the pepper spray actually was used that way on Alonzo Mitchell. See People v. Ross , 229 Ill.2d 255, 276, 322 Ill.Dec. 574, 891 N.E.2d 865 (2008) (reviewing cases and concluding that "the trier of fact may make an inference of dangerousness based upon the evidence"). The trial court determined that it was, noting that the robbers used the pepper spray to immobilize Mitchell from the beginning. This agrees with precedent finding that pepper spray is " 'disabling' " and can " 'temporarily incapacitate[ ]' " its victims. People v. Lampton , 385 Ill.App. 3d 507, 514, 325 Ill.Dec. 633, 898 N.E.2d 680 (2008) (quoting People v. Elliott , 299 Ill.App. 3d 766, 773, 234 Ill.Dec. 303, 702 N.E.2d 643 (1998) ). That Mitchell did not suffer a long-term injury from the pepper spray is of no moment. See People v. Brown , 87 Ill.App. 3d 368, 370-71, 42 Ill.Dec. 586, 409 N.E.2d 81 (1980) (effects of incapacitating were temporary, but whether weapon was "dangerous" for trier of fact to resolve). We defer to the trier of fact.

¶ 16 Was the Sentence Punishment for Rejecting a Plea Offer?

¶ 17 Johnson next asserts that the trial court punished him for rejecting the plea offer and exercising his constitutional right to a trial. Johnson argues that the three-year increase between the offer and the eventual sentence shows the court's intent. And Johnson deems as pretextual the court's explanation for the disparity.

¶ 18 A trial court may not punish a defendant for exercising his or her right to a trial. People v. Ward , 113 Ill.2d 516, 526, 101 Ill.Dec. 834, 499 N.E.2d 422 (1986). If it is "evident from the judge's remarks" that the sentence was at least partly a penalty for rejecting a plea offer, we will set aside the sentence. Id. But it must be "clearly" evident that the sentence was improper, and we must review the entire record rather than focusing on "a few words or statements." Id. at 526-27, 101 Ill.Dec. 834, 499 N.E.2d 422. We review the trial court's sentencing decision for an abuse of discretion. Id. at 526, 101 Ill.Dec. 834, 499 N.E.2d 422.

¶ 19 The 16-year sentence is not markedly longer than the rejected 13-year offer. So this is not a case like People v. Dennis , 28 Ill.App. 3d 74, 78, 328 N.E.2d 135 (1975), where the defendant rejected an offer of 2 to 6 years and received a sentence of 40 to 80 years after trial and "there [was] nothing in the record to indicate why the court found appropriate the imposition of an extremely harsh sentence after [Dennis's] jury trial." The Dennis court, which based its ruling on the disparity and the absence of justification, limited its holding to its unusual facts. Id.

¶ 20 Nor is this a case like People v. Young , 20 Ill.App. 3d 891, 894, 314 N.E.2d 280 (1974), where the defendant rejected a two- to five-year offer and was sentenced to three to nine years of imprisonment, which the trial court justified by stating, " 'you shot the dice and they just came up craps.' " Or People v. Moriarty , 25 Ill.2d 565, 567, 185 N.E.2d 688 (1962), where the trial judge linked the increased sentence to the rejected offer by stating that the defendant's rejection of a plea deal " 'will cost you nine years additional.' "

¶ 21 Here, the trial court stated that the additional detail heard at trial, pertaining to the "planned nature" of the crime, justified the increase. Johnson contends this statement is pretextual, and the State's proffer during the Rule 402 conference and the trial evidence were essentially identical. But the State's bare-bones description of the crime did not include evidence of premeditation. The trial evidence (including Johnson's statement to police and the surveillance video) illuminated that this armed robbery was not a spur-of-the-moment decision but, rather, a planned escapade where each participant had a defined role. On this record, it is not "clearly evident" that the 16-year sentence in any way served as punishment for rejection of the plea offer. We cannot say that the trial court abused its discretion in sentencing Johnson. See Ward , 113 Ill.2d at 526, 101 Ill.Dec. 834, 499 N.E.2d 422.

¶ 22 Affirmed.

Justices Pucinskiand Mason concurred in the judgment and opinion.


text:
    IN RE MARRIAGE OF Fanny S. LEWIN, n/k/a Levitt, Petitioner-Appellant, and Pierre H. Lewin, Respondent-Appellee.
    Appeal No. 3-17-0175
    Appellate Court of Illinois, Third District.
    Opinion filed May 30, 2018
    Jeffrey Alan Ryva, of Quinn, Johnston, Henderson, Pretorius & Cerulo, of Peoria, for appellant.
    Mark D. Walton, of Miller, Hall & Triggs, LLC, of Peoria, for appellee.
   JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 Petitioner Fanny Lewin, n/k/a Levitt, filed a motion to enforce or clarify the marital settlement agreement she entered with respondent Pierre Lewin, which was incorporated in the judgment of dissolution of their marriage. Pierre moved to dismiss, which the trial court granted. Fanny appealed. We affirm.

¶ 2 FACTS

¶ 3 Petitioner Fanny Lewin, n/k/a Levitt, and respondent Pierre Lewin were married in July 1997 in Las Vegas, Nevada. They permanently moved to the United States from France in 1998, so Pierre could pursue business opportunities. In 2000 and again in 2004, Pierre was terminated from his employment and the couple faced having to move back to France. In the summer of 2004, a French business colleague, Patrick Peronnet, suggested he and Pierre start a business in Illinois. One condition for the partnership was that Pierre and Fanny execute a postmarital agreement. Patrick sought the agreement because he did not want Fanny involved in the business or to become his business partner. Pierre and Fanny believed the postmarital agreement would protect Fanny and the couple's children from creditors should the new business venture fail. In March 2005, the parties signed a postmarital agreement. The agreement provided, in pertinent part, that Fanny would receive the marital home, her vehicle and the savings account in exchange for waiving maintenance. Pierre would receive the business interests. At the time the agreement was signed, neither Fanny nor Pierre anticipated a divorce.

¶ 4 In May 2014, Fanny filed for dissolution of the marriage. The parties executed a marital settlement agreement (MSA), which provides, in pertinent part:

"11. Respondent shall be allowed to claim for Federal and State Income Tax purposes for 2016 all allowable deductions related to the properties on Brookforest and St. Charles, including the real estate taxes and deducible interest.
* * *
17. Petitioner shall have as and for her own, free and clear of any claim of Respondent the former marital residence at 3100 S. St. Charles Place, Peoria, Illinois and the residence at 908 W. Brookforest, Peoria, Illinois, free and clear of any claim of Respondent. Petitioner shall be responsible for payment of 50% of the line of credit obtained to pay attorney fees in these proceedings. The $50,000 shall be deducted from the $2,000,000.00 settlement resulting in the $1,950,000.00 settlement. Respondent shall be responsible for payment of the entire $100,000.00 line of credit and shall hold Petitioner harmless therefrom.
Respondent shall have the right to live in and occupy the Brookforest residence until such time as he advises the Petitioner that he will move to another location or until Petitioner decides to sell the residence at which time she shall provide him with written notice and allow him 90 days to move from the residence.
In the event Respondent decides to move from the Brookforest residence, he shall provide Petitioner with his Notice of Intent to Move no less than 30 days before the move.
Respondent shall be responsible for payment of all utilities during his period of occupancy of the Brookforest residence. In all other respects, Petitioner shall be responsible for all expenses, debts and obligations arising out of ownership of both properties, including the second installment of the 2015 real estate taxes payable in 2016 and all subsequent years of real estate taxes, home owner's insurance, together with cost of sale, including any closing costs and realtor's commissions."

¶ 5 A judgment of dissolution was entered on August 19, 2016, which incorporated the MSA. The judgment of dissolution included an express integration clause. In November 2016, Fanny filed a motion to enforce or clarify the MSA, arguing that it did not assign the mortgage payments to her and that it was her understanding Pierre would remain responsible for paying the mortgage because he had always made the payments. Fanny requested the court determine that Pierre was responsible for the mortgage on the St. Charles Place residence and require him to reimburse her for mortgage payments she had made and to hold her harmless.

¶ 6 Pierre moved to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Civil Code) ( 735 ILCS 5/2-615 (West 2016) ), alleging Fanny's motion was untimely and failed to state a cause of action. The motion was granted in part and denied in part. The trial court found Fanny's motion requested the clarification or interpretation, not the modification, of the MSA, and rejected Pierre's untimeliness argument. The trial court reviewed the agreement, concluded the MSA was not ambiguous, and refused to apply the provisional admission approach to interpret the agreement. The court granted dismissal under section 2-619(a)(9) ( 735 ILCS 5/2-619(a)(9) (West 2016) ) of the Civil Code. Fanny timely appealed.

¶ 7 ANALYSIS

¶ 8 Fanny presents several arguments that dismissal was improper, including the trial court erred in converting Pierre's section 2-615 motion to dismiss into a section 2-619 motion to dismiss, failed to apply the provisional admission approach to interpret the MSA, did not consider the incompleteness and mistake exceptions to the parol evidence rule, and improperly found the MSA was unambiguous.

¶ 9 A section 2-615 motion to dismiss alleges the complaint fails to state a claim on which relief may be granted. 735 ILCS 5/2-615 (West 2016). The motion presents the question of whether the complaint's allegations, taken as true and viewed in a light most favorable to the nonmovant, are sufficient to state a cause of action on which relief may be granted. Turner v. Memorial Medical Center , 233 Ill. 2d 494, 499, 331 Ill.Dec. 548, 911 N.E.2d 369 (2009). A section 2-619(a)(9) motion accepts the legal sufficiency of the complaint but alleges that plaintiff's claim is barred by other affirmative matter that avoids or defeats the claim. 735 ILCS 5/2-619(a)(9) (West 2016). "An 'affirmative matter' is something in the nature of a defense that negates the cause of action completely." Martinez v. Cook County Sheriff's Office , 2017 IL App (3d) 160514, ¶ 15, 418 Ill.Dec. 161, 89 N.E.3d 995. Our review of a dismissal under either section 2-615 or section 2-619 is de novo. Morrow v. Pappas , 2017 IL App (3d) 160393, ¶ 42, 418 Ill.Dec. 343, 90 N.E.3d 501 (section 2-615) ; In re Marriage of Morreale , 351 Ill. App. 3d 238, 240, 286 Ill.Dec. 256, 813 N.E.2d 313 (2004) ( section 2-619 ).

¶ 10 As a first matter, we address Fanny's argument that the trial court improperly converted Pierre's section 2-615 motion to dismiss to a section 2-619 motion, precluding her from presenting evidence in support of her motion to enforce or clarify. She submits the trial court's conversion shifted the focus on Pierre's motion to dismiss from a legal inquiry to a fact-based dispute and argument on the merits. According to Fanny, she was never given an opportunity to submit any evidence to show an ambiguity exists in the MSA, which prejudiced her and resulted in the improper dismissal of her motion to enforce or clarify.

¶ 11 The mislabeling of a motion to dismiss is not always fatal and the court will consider the motion where no prejudice resulted from the improper designation. Wallace v. Smyth , 203 Ill. 2d 441, 447, 272 Ill.Dec. 146, 786 N.E.2d 980 (2002). However, where the mislabeling prejudices the nonmoving party, the court's grant of the dismissal must be reversed. Premier Electrical Construction Co. v. La Salle National Bank , 115 Ill. App. 3d 638, 642, 71 Ill.Dec. 481, 450 N.E.2d 1360 (1983).

¶ 12 When ruling on a section 2-615 motion to dismiss, a court may not consider affidavits, the results of discovery, or other documentary evidence that was not included with the pleadings as exhibits or other supporting evidence. Hartmann Realtors v. Biffar , 2014 IL App (5th) 130543, ¶ 14, 382 Ill.Dec. 937, 13 N.E.3d 350. The court may not consider evidence outside the pleading when ruling on the motion. Gilmore v. Stanmar, Inc. , 261 Ill. App. 3d 651, 654, 199 Ill.Dec. 189, 633 N.E.2d 985 (1994). In contrast, a section 2-619 motion asserts defects or defenses outside the pleadings that defeat the claims. Solaia Technology, LLC v. Specialty Publishing Co. , 221 Ill. 2d 558, 579, 304 Ill.Dec. 369, 852 N.E.2d 825 (2006). The court must determine whether the supporting materials establish an affirmative matter defeating the petitioner's claim. Turner v. 1212 S. Michigan Partnership , 355 Ill. App. 3d 885, 892, 291 Ill.Dec. 476, 823 N.E.2d 1062 (2005) (citing Waterford Executive Group, Ltd. v. Clark/Bardes, Inc. , 261 Ill. App. 3d 338, 343, 199 Ill.Dec. 207, 633 N.E.2d 1003 (1994) ). In a ruling on a section 2-615 motion to dismiss, a court may not rely on facts outside the complaint. Visvardis v. Eric P. Ferleger, P.C. , 375 Ill. App. 3d 719, 724, 313 Ill.Dec. 812, 873 N.E.2d 436 (2007).

¶ 13 An integration clause is designed to bind the parties to the terms of their written agreement. Air Safety, Inc. v. Teachers Realty Corp. , 185 Ill. 2d 457, 464, 236 Ill.Dec. 8, 706 N.E.2d 882 (1999) (citing Armstrong Paint & Varnish Works v. Continental Can Co. , 301 Ill. 102, 106, 133 N.E. 711 (1921) ). By using an integration clause in a contract, the parties are "explicitly manifesting their intention to protect themselves against misinterpretations which might arise from extrinsic evidence." Air Safety , 185 Ill. 2d at 464, 236 Ill.Dec. 8, 706 N.E.2d 882. Where an integration clause is included in an agreement, the four corners rule applies and extrinsic evidence is not admissible to interpret the agreement.

Eichengreen v. Rollins, Inc. , 325 Ill. App. 3d 517, 522, 259 Ill.Dec. 89, 757 N.E.2d 952 (2001). In contrast, the provisional admissibility approach allows the use of extrinsic evidence to aid in interpreting an agreement that is otherwise unambiguous on its face. Ahsan v. Eagle, Inc. , 287 Ill. App. 3d 788, 790, 223 Ill.Dec. 107, 678 N.E.2d 1238 (1997). Under that approach, the court first provisionally examines the extrinsic evidence to determine whether there is an ambiguity. Id. The provisional admission approach does not apply to contracts with an integration clause. Air Safety , 185 Ill. 2d at 464, 236 Ill.Dec. 8, 706 N.E.2d 882.

¶ 14 Pierre argues that the provisional admission approach is not applicable because the parties' MSA was an integrated statement of settlement of the parties' dissolution issues. The judgment of dissolution, which incorporated the MSA and included an express integration clause, was attached to Pierre's motion to dismiss. The judgment provides that the MSA settles "all questions of property rights, claims against each other, rights of maintenance and all other marital rights arising out of their marriage to each other." The MSA was a fully integrated agreement and intended to be the entire agreement between the parties. Insertion of the integrated clause in the dissolution judgment reflects Fanny and Pierre's intent to bind themselves to their written agreement. The integration clause precluded the use of the provisional admissibility approach and extrinsic evidence was not admissible to support Fanny's claim that the MSA was ambiguous regarding the mortgage payment. Because Fanny could not present any extrinsic evidence to support her interpretation of the MSA, she could not have been prejudiced by the trial court's treatment of the section 2-615 motion as a section 2-619(a)(9) motion. We find the trial court did not err when it granted Pierre's motion to dismiss.

¶ 15 CONCLUSION

¶ 16 For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

¶ 17 Affirmed.

Presiding Justice Carter and Justice Holdridge concurred in the judgment and opinion.


text:
    CINCINNATI INSURANCE COMPANY, Plaintiff-Appellee, v. Robert PRITCHETT, Defendant-Appellant.
    Appeal No. 3-17-0577
    Appellate Court of Illinois, Third District.
    Rule 23 Filed May 30, 2018 Motion to Publish Granted June 12, 2018 Opinion filed June 12, 2018
    Cole H. Munvez, of The Law Offices of Parente & Norem, P.C., of Chicago, for appellant.
    Brian J. Hunt and Sierra N. Hagl, of The Hunt Law Group, LLC, of Chicago, for appellee.
   JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.

¶ 1 The defendant, Robert Pritchett, appeals from the circuit court's order granting declaratory judgment for the plaintiff, Cincinnati Insurance Company (Cincinnati), and argues that the court's decision was against the manifest weight of the evidence.

¶ 2 FACTS

¶ 3 In October 2007, Pritchett was driving a semitruck owned by his employer, Carl A. Anderson & Sons, Inc., when Pritchett lost control of the truck, hit the curb, and flipped the truck over. Cincinnati had issued an automobile liability insurance policy to Carl A. Anderson & Sons, Inc. Pertinent portions of the policy stated,

"A. Coverage
1. We will pay all sums the 'insured' is legally entitled to recover as compensatory damages from the owner or operator of an 'uninsured motor vehicle.' The damages must result from 'bodily injury' sustained by the 'insured' caused by an 'accident.' The owner's or operator's liability for these damages must result from the ownership, maintenance or use of the 'uninsured motor vehicle.'
* * *
F. Additional Definitions
As used in this endorsement:
* * *
4. 'Uninsured motor vehicle' means a 'motor vehicle':
* * *
c. That is a hit-and-run vehicle and neither the driver nor owner can be identified. The vehicle must hit, or cause an object to hit, an 'insured,' a covered 'auto' or a vehicle an 'insured' is 'occupying.' If there is no physical contact with the hit-and-run vehicle, the facts of the 'accident' must be proved."

The policy further required arbitration if the parties do not agree whether a claimant "is legally entitled to recover damages from a party respondent for the 'accident.' " Pritchett made a claim under the uninsured motorist provision of the policy in 2008, and Cincinnati denied coverage on the basis that the accident did not involve an uninsured vehicle or any other second vehicle. Pritchett questioned the denial, and Cincinnati confirmed its denial. Pritchett then filed a demand for arbitration.

¶ 4 In 2009, Cincinnati filed a complaint for declaratory judgment against Pritchett. The complaint alleged (1) Pritchett was not entitled to arbitrate issues regarding coverage because "[w]ell-established Illinois law clearly holds that coverage issues are not subject to arbitration agreements in uninsured motorist provisions of a policy and should be determined prior to arbitration proceedings" (citing State Farm Fire & Casualty Co. v. Yapejian , 152 Ill. 2d 533, 178 Ill.Dec. 745, 605 N.E.2d 539 (1992) ), (2) the accident was not covered by the policy because "[t]he subject occurrence did not involve an uninsured motor vehicle, or any other second vehicle," and (3) "[t]he accident claimed by Pritchett does not fall within the definition [of] an accident with an 'uninsured motion vehicle' because the subject occurrence does not involve a vehicle which hit, or caused an object to hit, Pritchett's vehicle."

¶ 5 The parties filed cross-motions for summary judgment. Pritchett argued, in part, that the policy was ambiguous and had to be construed in his favor. The court denied both motions. In doing so, it stated, "[T]he policy is ambiguous. *** [H]owever, [Pritchett] must prove the facts of the accident as there was no contact in order for the Court to ascertain whether coverage applies. This must be done before the Court would send the matter to arbitration." Cincinnati filed a motion to reconsider, which was denied. The court ultimately certified two questions for interlocutory appeal: (1) "Is the *** policy language ambiguous in that it does not clearly require physical contact between an insured vehicle and another vehicle, either directly or through a continuous chain of events, for coverage to exist?"; and (2) "Is the *** policy language ambiguous with respect to the necessity of physical contact between an insured vehicle and either a hit and run vehicle or an object caused by a hit and run vehicle to make contact with the insured vehicle through a continuous sequence of events?" This court answered both questions in the affirmative and remanded for further proceedings. Cincinnati Insurance Co. v. Pritchett , 2015 IL App (3d) 130809, ¶¶ 26, 28, 391 Ill.Dec. 744, 31 N.E.3d 420.

¶ 6 The matter was set for a bench trial to determine "whether the coverage, under the Uninsured Motorist Policy applie[d]." Pritchett testified that he was employed with Carl A. Anderson & Sons, Inc. driving a semitruck. On the day of the accident, he was hauling 19 tons of gravel. He made a left turn onto Diehl Road and stayed in the right-most lane. He was driving approximately 40 miles per hour. Pritchett had begun to slow and activated his right turn signal about 50 to 100 feet before the right turn lane. He observed a light green, four-door sedan through his driver's side mirror. The sedan was in the lane next to him, "[a]bout halfway up the trailer." The sedan sped up and made a "jerky" movement in front of Pritchett "like it was going to make a right turn, *** but changed [its]

mind at the last minute." The sedan was partially in Pritchett's lane. Pritchett stated, "If [the sedan] would have kept going, [it] would have hit my bumper." After the sedan "jerk[ed]" into Pritchett's lane, it returned to the left lane and continued driving at the same speed-about 45 to 50 miles per hour. When the sedan entered partially into Pritchett's lane, Pritchett "[h]it the brakes and turned the wheel to the right." Pritchett's truck hit the curb, and he then turned the wheel to the left. The truck then tipped over. At that point, the sedan was about an eighth of a mile ahead of Pritchett. Pritchett stated that he lost consciousness. He told the investigating police officer, Officer Richard Morgan, and his boss, Carl Anderson, that a vehicle cut him off, but he did not remember anything else he told them. He denied driving too fast.

¶ 7 Tom Modzelewski testified that on the day of the accident he was working as a landscape architect for Western Du Page Landscaping near the corner of Diehl Road. As he was leaving the office through the front door of the building, he closed the door, turned around to face Diehl Road, and "witnessed the semi dump truck driving, hopping the curb, and then looked like it jackknifed and then flipped over on to its side, [d]umping the gravel." Modzelewski stated that "the whole duration was maybe five seconds." He observed the truck driving before it hit the curb and thought it "seemed [to be traveling] fast *** in [his] opinion." He could see a vehicle or semitruck length in front of Pritchett, but did not see any vehicle in front of Pritchett. He had observed other semitrucks in that location and believed that they "had generally been traveling more slowly than Mr. Pritchett was on the date of the occurrence." Modzelewski then went back into the office and called 911.

¶ 8 Janie Tomasek testified via evidence deposition that she had been the receptionist at Western Du Page Landscaping. At the time of the accident, she was in her vehicle at a stop sign about to turn onto Diehl Road. She saw a vehicle driving in the left lane and about a "football field" behind it in the right lane was Pritchett's semitruck. She then saw the truck hit the curb twice and then tip over. She believed the truck was traveling at a speed of "at least 40 to 45" miles per hour. When she first observed the truck, Tomasek stated that it appeared the driver had the vehicle under control. She looked away for two to five seconds. When she looked back, the truck was "still under control, but within a second, then it hit the curb." Based on her observations, no other vehicle made contact with the truck, cut off the truck, or was at all involved in the occurrence.

¶ 9 Officer Morgan testified that he was a deputy sheriff in Du Page County at the time of the accident, though he had since retired. He was the first responder on the scene after the accident. Modzelewski and Tomasek witnessed the accident and spoke to Morgan. Neither Modzelewski nor Tomasek mentioned that another vehicle was involved. He did not recall if Pritchett mentioned another vehicle, however, Morgan stated that his report did not indicate another vehicle. He said, "In the upper left corner [of the report], there is a place where I would have marked if there was another vehicle involved." Based on his training and practice, had any witness advised him that another vehicle was involved, he would have reflected that on his report. He gave two citations to Pritchett. One was a speed violation: either a citation for failure to reduce speed or too fast for conditions. The other citation was for improper lane usage. Morgan summarized on his report that "either through negligence in maintaining its lane usage and striking the curb or driving so fast that, when trying to maintain the curve of the road, the truck tipped over." Pritchett appeared to be lucid and "had his faculties about him" when speaking to Morgan.

¶ 10 Carl Anderson testified that he was the president of Carl A. Anderson & Sons, Inc. Pritchett was employed as a truck driver for eight years for Anderson. He received a phone call at his office shortly after the accident. Anderson visited Pritchett at the hospital later that evening. Pritchett never told him there was another vehicle involved in the accident. Instead, Pritchett stated that he "honestly [could not] remember" what happened. The next day Anderson filled out a worker's compensation form. Anderson stated that had he had any occasion to believe another vehicle was involved in the accident, he would have written it on the form. He did not indicate on the form that another vehicle was involved.

¶ 11 The court took the matter under advisement and ultimately issued a written order stating:

"1. On August 1, 2017, the Court conducted a bench trial in this coverage action. The case involves a rollover semi-trailer truck accident that occurred on October 10, 2007, and whether there exists uninsured motorist coverage under Cincinnati Insurance Company policy ***.
2. On the day of the accident, Robert Pritchett was driving a semi-trailer truck loaded with gravel. His vehicle's front right tire hit the curb, and subsequently, Mr. Pritchett lost control of the truck and it fell over on its side.
3. A primary issue in this case is whether an unidentified 'phantom vehicle' caused Mr. Pritchett to swerve into the curb.
4. There was some discussion between the parties as to which side has the burden of proof, and what that burden is. The Court need not get into that issue because it would not make a difference in this case. Upon hearing the evidence and gauging the credibility of the witnesses, [the Court] finds that the existence of this phantom vehicle cannot be established. The Court further finds that Mr. Pritchett's testimony regarding the accident-in particular the existence of a phantom vehicle-was not credible.
5. In light of the factual findings in the foregoing paragraph, the Court further finds as follows:
A. The October 10, 2007 accident did not involve an 'uninsured motor vehicle' as discussed and defined in the Policy;
B. The Policy provides no uninsured motorist coverage;
C. Cincinnati Insurance Co. has no obligation to arbitrate, defend, or indemnify any claims that are based on a phantom-vehicle theory;
D. Judgment is entered for Cincinnati Insurance Co., and against Robert Pritchett ***."

¶ 12 ANALYSIS

¶ 13 On appeal, Pritchett argues that the court's findings were against the manifest weight of the evidence.

¶ 14 At the outset, we note the question in the circuit court was whether Pritchett's accident was covered under the uninsured motorist provision of the Cincinnati insurance policy. The policy stated that in order for coverage to apply in a hit-and-run scenario, "The vehicle must hit, or cause an object to hit, an 'insured,' a covered 'auto' or a vehicle an 'insured' is 'occupying.' If there is no physical contact with the hit-and-run vehicle, the facts of the 'accident' must be proved." Stated another way, if the court found that another vehicle caused Pritchett to swerve and hit the curb, coverage would apply. Only if coverage was established would the parties be required to arbitrate their dispute. See Yapejian , 152 Ill. 2d 533, 178 Ill.Dec. 745, 605 N.E.2d 539.

¶ 15 Pritchett does not agree that this was the question before the court. Instead, he argues that the only question before the court was whether "a second vehicle was in the vicinity of [his] vehicle at the time of the occurrence." He then argues that the question of whether the vehicle caused the accident should have been an issue for arbitration. First, we note the multiple times in the record the court and the parties both state that in order for coverage to apply, the facts of the accident had to be proven, including the fact that another vehicle cut Pritchett off. Pritchett never objected in the circuit court that this was the question the court was to consider. In fact, Pritchett's attorney specifically stated that the court should believe Pritchett's story that another vehicle cut him off and stated that "in deciding whether a vehicle cut him off, *** [Modzelewski's] testimony should [not] be given any weight." Pritchett has thus forfeited this argument. Tully v. McLean , 409 Ill. App. 3d 659, 664, 350 Ill.Dec. 434, 948 N.E.2d 714 (2011). Second, even excusing the forfeiture, we find nothing in the record or case law to support Pritchett's contention. The policy provision clearly states that for coverage to apply in a hit-and-run accident where there is no physical contact with the hit-and-run vehicle, the facets of the accident had to be proven in order for coverage to apply. As stated above (supra ¶ 15), Illinois law does not require coverage disputes to be arbitrated. See Yapejian , 152 Ill. 2d 533, 178 Ill.Dec. 745, 605 N.E.2d 539 ; Shultz v. Atlantic Mutual Insurance Co. , 367 Ill. App. 3d 1, 10, 304 Ill.Dec. 562, 853 N.E.2d 94 (2006). We now turn to the question of whether the court's finding that a second vehicle did not cause the accident was against the manifest weight of the evidence.

¶ 16 "The standard of review that this court applies to a trial court's decision following a bench trial is to determine if the judgment is based on facts that are against the manifest weight of the evidence." Wade v. Stewart Title Guaranty Co. , 2017 IL App (1st) 161765, ¶ 59, 415 Ill.Dec. 559, 82 N.E.3d 763. "The manifest weight of the evidence standard affords great deference to the trial court because the trial court is in a superior position to determine and weigh the credibility of the witnesses, observe witnesses' demeanor, and resolve conflicts in their testimony." Id. A judgment is against the manifest weight of the evidence if (1) the opposite conclusion is apparent, or (2) the findings appear to be unreasonable, arbitrary, or not based on the evidence. Green v. Papa , 2014 IL App (5th) 130029, ¶ 32, 378 Ill.Dec. 724, 4 N.E.3d 607.

¶ 17 Here, Modzelewski and Tomasek both witnessed the accident and did not see another vehicle involved in the accident. While Tomasek stated that she did see another vehicle significantly ahead of Pritchett prior to the accident, it remained in the left lane the whole time. She also did not identify this vehicle as a light green sedan (Pritchett's identification). Moreover, both Anderson and Morgan testified that they talked to Pritchett after the accident, and he never mentioned to them that another vehicle was involved. Had he mentioned it to them, they both stated that they would have included that information on the police report and worker's compensation form. Neither the police report nor the worker's compensation form included such information. Though Pritchett testified that a light green sedan cut him off and caused him to swerve, no other evidence confirms this. More significantly, the circuit court found Pritchett not credible. Supra ¶ 12. We defer to this credibility finding. Traveler's Insurance Co. v. Webster , 251 Ill. App. 3d 46, 49, 190 Ill.Dec. 373, 621 N.E.2d 242 (1993). Based on the evidence presented, the court found that the accident was not caused by a second vehicle and, therefore, the uninsured motorist coverage under the policy did not apply. We cannot say that the court's ruling was against the manifest weight of the evidence.

¶ 18 CONCLUSION

¶ 19 The judgment of the circuit court of Will County is affirmed.

¶ 20 Affirmed.

Justices McDade and Schmidt concurred in the judgment and opinion.