author:
JUSTICE SIMON
      JUSTICE UNDERWOOD,

text:
    (No. 56217.
    RAYMOND M. WALSH, Appellee, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF ORLAND PARK et al., Appellants.

      Opinion filed April 22, 1983.
    Rehearing denied May 27, 1983.

      Goldstine and Broida, Ltd., of Summit (Ronald J. Broida, Richard J. Skrodzki, and Kenneth J. Nemec, Jr., of counsel), for appellants.
    Condon, Cook & Roche, of Chicago (James J. Roche, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The chief of the police department of the village of Orland Park charged Raymond Walsh, a sergeant in the department, with violating several departmental regulations in connection with a shooting incident which occurred in his home. In an administrative proceeding the board of fire and police commissioners of the village (board) found him guilty of the charges and ordered that he be discharged from the department. The only issue on this appeal is whether a sanction less than discharge is appropriate in this case because at the time of the incident Sergeant Walsh was on medical suspension for treatment of a psychiatric problem.

The specific charges were:

(1) excessive use of intoxicants;
(2) reckless conduct and aggravated assault;
(3) conduct unbecoming a police officer;
(4) unlawful use of a weapon;
(5) conduct tending to cast disrepute on the department;
(6) conduct contrary to the public peace or welfare; and
(7) drawing a firearm needlessly.

The board found Walsh guilty of all the charges except excessive use of intoxicants and ordered that he be discharged from the police force.

Sergeant Walsh filed an action in the circuit court of Cook County for review of the board’s administrative decision. He alleged that the board had no jurisdiction over his case because he had tendered his resignation from the force. He also claimed that the board’s finding of guilt was against the manifest weight of the evidence. The circuit court found that his attempt to resign was ineffective because he had not tendered his letter of resignation to the chief of police as required by departmental regulations. The circuit court also found that the board’s decision was supported by the manifest weight of the evidence.

Sergeant Walsh appealed, and the appellate court agreed with the department’s decision on both the issues of jurisdiction and guilt. (103 Ill. App. 3d 635.) Nevertheless, the appellate court reversed the department’s decision to discharge Sergeant Walsh and remanded the cause to the board for the consideration of an alternative sanction. The court held that the sanction of discharge was too severe in view of the fact that at the time of the incident Sergeant Walsh was on medical suspension for treatment of a psychiatric problem. (103 Ill. App. 3d 635, 639-40.) We granted the board leave to appeal from the appellate court decision.

The evidence showed that Sergeant Walsh was appointed to the Orland Park police department in 1971. Robert Olson, the police chief of Orland Park, characterized Sergeant Walsh as a “very competent” policeman, but noted that he had suffered from recurring medical problems since the fall of 1975. On April 22, 1977, Chief Olson placed Walsh on medical-disability suspension. This status removed him from the obligations of active duty but allowed him to retain his rank, his uniform, his badge and his service revolver. This status also left Sergeant Walsh eligible for a disability pension at 50% of his salary at the date of suspension (Ill. Rev. Stat. 1977, ch. 108½, par. 3—114.2), a pension that he was granted by the board of trustees of the police pension fund of Orland Park (pension board).

Around midnight on September 17, 1977, Walsh telephoned Sergeant Don Smith, a friend of his on the police force, and told him that “it was his time” and that he was “going to do himself in.” After Walsh hung up, Smith called him back and had a similar conversation. Smith immediately went to Walsh’s home, where Walsh met him at the door with a gun in his hand.

For the next 20 to 30 minutes, Smith, Walsh, and Walsh’s wife sat and talked in the living room of the Walsh home. Walsh again told Smith that it was “his time” and that “he didn’t want to live any more.” On numerous occasions Walsh pulled the hammer of the gun back into a cocked position and pointed it at Smith, at Mrs. Walsh, or at himself. Smith told Walsh several times not to point the gun at him and to put the gun down, but Walsh refused each of these requests.

Walsh got up and poured himself a drink at the bar. After a few minutes, he spilled the drink and dropped the glass onto the floor. With Smith and Mrs. Walsh in close proximity he shot at the glass on the floor. The shot missed, but Walsh then kicked the glass and broke it. Walsh then bent down to pick up some cigarettes with the gun pointed at Smith, who was less than three feet away. The gun discharged and Smith was hit in the face. Smith recovered from this wound.

Four Orland Park police officers arrived at the Walsh home after hearing a radio transmission dispatching an ambulance to the residence. They noted that Walsh had alcohol on his breath and was “distraught and upset” over the shooting. “Oh my God, I’ve just shot my best friend,” he was reported as saying.

In Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 550, we recognized that “[a] court’s scope of review of an administrative agency’s decision regarding discharge is a two-step process.” First, the court must determine whether the agency’s finding of guilt is contrary to the manifest weight of the evidence. In this case, both the circuit court and the appellate court concluded that the board’s findings were not contrary to the manifest weight of the evidence, and Walsh has not appealed from that decision.

“The second step in the court’s analysis is to determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge does or does not exist.” (85 Ill. 2d 547, 551.) This court has defined “cause” as “some substantial shortcoming which renders [the employee’s] continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as a good cause for his not longer occupying the place.” Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360; see also Kreiser v. Police Board (1977), 69 Ill. 2d 27, 30.

An administrative tribunal’s finding of “cause” for discharge commands our respect, and it is to be overturned only if it is arbitrary and unreasonable or unrelated to the requirements of the service. (DeGrazio v. Civil Service Com. (1964), 31 Ill. 2d 482, 489.) In Sutton v. Civil Service Com. (1982), 91 Ill. 2d 404, we reemphasized the considerable deference that must be afforded to an administrative finding of “cause” for discharge:

“Sutton asks this court to consider his years of exemplary service in the Department, the extenuating circumstances of his frustration after being reprimanded, which caused him to make the statements attributed to him, and the fact that these statements were made thoughtlessly. The question, though, is not whether this court would decide upon a more lenient sanction than discharge were it to determine initially what discipline would be appropriate. Nor is it whether this court would conclude in view of the mitigating circumstances suggested by Sutton that a different penalty would be more appropriate. The question is whether, in view of the circumstances presented, this court can say that the Civil Service Commission, in opting for discharge, acted unreasonably or arbitrarily or selected a type of discipline unrelated to the needs of the service.” (Emphasis added.) 91 Ill. 2d 404, 411.

In the present case, Sergeant Walsh displayed his gun in a most reckless and irresponsible manner. In close proximity to his wife and close friend in his home, he intentionally discharged his gun at a glass on the floor. He pulled the hammer of the gun back into a cocked position and pointed it at other persons. As a direct result of this misconduct, the gun discharged into Sergeant Smith’s face.

A police officer hardly can commit a more serious offense than misuse of his gun. Nothing can undermine public confidence in the ability and good judgment of police officers more than the misuse of firearms. Common sense requires that each officer show considerable care and maturity in handling and using his service revolver, for he has ready access to this weapon every day of his career. An officer must never display his gun in a way that unnecessarily threatens other persons. We find that the seriousness of this offense is more than enough to warrant the board’s decision to discharge Sergeant Walsh. Cf. Kammerer v. Board of Fire & Police Commissioners (1970), 44 Ill. 2d 500, 506-07 (board’s decision to discharge upheld where officer kicked and dented the side of a squad car and made abusive remarks about the chief of police).

Nevertheless, Walsh argues that it is arbitrary and unreasonable to grant a medical suspension and disability pension when an officer has psychiatric problems and later discharge him and take away his pension when the same psychiatric condition causes him to act in a manner that warrants discharge. The appellate court agreed and held that the maximum sanction of discharge was unwarranted because “[i]t appears that [Walsh’s] conduct was a manifestation of the very psychological problems for which he was on disability suspension.” (103 Ill. App. 3d 635, 639.) The court apparently felt that a disability retirement or a continuation of the disability suspension was a more appropriate sanction than discharge in view of Walsh’s history of psychiatric problems.

Evidence in the record does establish that Walsh had some kind of psychiatric problem. Chief Olson had placed him on medical-disability suspension and the pension board had granted him a disability pension pending the treatment of his illness. We find no evidence in the record, however, establishing the specific nature of Walsh’s psychiatric problems or whether the shooting incident had any relation to them.

The only specific evidence relating to Walsh’s psychiatric problems was presented in two letters that he had submitted to the pension board in support of his application for a pension. One letter, dated June 14, 1977, was from Dr. Rudolph G. Novick and Dr. Daniel Faisal and read as follows:

“This is to advise you that Raymond Walsh has been in treatment with me since March 5,1977.
So far, treatment has consisted of chemotherapy, biofeedback and weekly sessions of psychotherapy His condition is framed into the anxiety-phobic depersonalization syndrome. A consultation with Dr. Rudolph Novick, the Psychiatrist-in-Chief here at Forest Hospital, concurred with the diagnosis and the treatment disposition and planning.
In our professional opinion, at this time, Mr. Walsh is not able to return to work.”

The other letter, dated July 12, 1977, was from Dr. Dean B. Leyers and read as follows:

“Patient Ray Walsh has been to see me several times since the beginning of the year, with severe headaches, tension, and anxiety.
He was referred for psychological evaluation and anxiety reaction diagnosed, which will keep him from fulfilling his duties as a police officer.”

The bodies of these two letters have been reproduced in full in order to emphasize the vagueness of the psychiatric evidence submitted to the board.

On the basis of the vague psychiatric evidence presented to the board and the seriousness of Sergeant Walsh’s misconduct, we would have no alternative except to hold that the board’s decision was neither arbitrary nor unreasonable. However, because the psychiatric evidence presented was so vague and because the board’s decision to discharge Sergeant Walsh for cause may jeopardize his pension rights, we believe that justice and fairness require us to vacate the judgments of the appellate and circuit courts and the order of the board and remand this cause to the board for the submission by either parly of further evidence that is relevant to the issue of whether Sergeant Walsh’s misconduct was substantially the result of the psychiatric problems that led to his prior medical suspension. If the board finds that the misconduct was substantially related to those problems, the proper sanction would be other than discharge for “cause.”

Judgments and order vacated; cause remanded, with directions.

JUSTICE UNDERWOOD,

dissenting:

After describing as “most reckless and irresponsible” Sergeant Walsh’s actions in shooting at the glass on the floor with others nearby, pointing the cocked and loaded gun at the others, and then shooting Sergeant Smith in the face, the majority finds that “the seriousness of this offense is more than enough to warrant the board’s decision to discharge Sergeant Walsh.” (96 Ill. 2d at 106-07.) The majority also notes that “An administrative tribunal’s finding of ‘cause’ for discharge commands our respect,” and that “considerable deference” must be accorded such findings. (96 Ill. 2d at 106.) With those analyses I could not agree more. But in what seems to me a remarkable non sequitur, the majority then proceeds to vacate the board’s order and remand the cause for further hearings.

This action apparently is taken because a discharge may affect Sergeant Walsh’s pension rights, and the majority believes he is entitled to a second opportunity to establish that the threats and shooting were the result of the psychiatric problems. There is, however, simply no evidence in this record which indicates the shooting was in any way connected with the unspecified and undefined psychiatric problems. Nor is there any indication that additional, more probative evidence can be produced.

A full and complete opportunity was afforded in the original hearing for the introduction of evidence of a causal connection between the shooting and the medical problems. That relationship was not established, and the misconduct was, as the majority states, “more than enough to warrant the board’s decision to discharge Sergeant Walsh.” (96 Ill. 2d at 106-07.) Given the extremely serious and life-threatening nature of the conduct involved here, I see no reason to do other than affirm the board’s action. Sutton v. Civil Service Com. (1982), 91 Ill. 2d 404; DeGrazio v. Civil Service Com. (1964), 31 Ill. 2d 482, 489.

JUSTICE MORAN joins in this dissent.


source: Caselaw Access Project

author: JUSTICE CLARK JUSTICE SIMON,

license: Public Domain

text:
    (No. 55330.
    RUTH A. WOLD, Appellant, v. BULL VALLEY MANAGEMENT COMPANY, INC., Appellee.

      Opinion filed April 22, 1983.

    Rehearing denied May 27, 1983.

    Hugh M. Matchett, of Chicago, for appellant.
    Kim M. Irvine, of Holmstrom & Green, EC., of Woodstock, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

On September 18, 1978, plaintiff, Ruth A. Wold, filed a complaint against Bull Valley Management Company for damages resulting from an alleged malicious breach of an employment contract entered into between Orin W. Wold and herself.

The case was set for jury trial on April 21, 1980. On April 2, 1980, the plaintiff filed a petition for a change of venue, a motion to strike the counteraffidavit of Orin W. Wold, and a motion to remove the case from the civil jury trial call. In the motion to remove the case from the scheduled trial date, plaintiff’s counsel stated that he had several appellate briefs to prepare and that he was unable to appear on his motion at any time prior to June 3, 1980. Counsel requested the clerk to present his motion to the judge. The circuit court of McHenry County did not rule on any of the motions but, instead, dismissed the cause for want of prosecution because of plaintiff’s failure to appear on April 21,1980.

Plaintiff appealed and alleged that the trial court erred in dismissing the action for want of prosecution, failing to grant the petition for change of venue, failing to grant the motion to strike Orin W. Wold’s affidavit, and failing to grant a prior motion for summary judgment. The appellate court determined that it did not have jurisdiction to consider the appeal. The court found that a dismissal for want of prosecution is not a final and appealable order, since under section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a) the plaintiff could have refiled the action within one year after the dismissal. (97 Ill. App. 3d 516.) We granted the plaintiff’s petition for leave to appeal (73 Ill. 2d R. 315).

The issue presented for our review is whether a dismissal for want of prosecution is a final and appealable order. Our decision in Flores v. Dugan (1982), 91 Ill. 2d 108, is dispositive.

In Flores the circuit court denied the plaintiff’s motion for a continuance of the trial date and dismissed the cause for want of prosecution. The plaintiffs appealed from that decision and argued that the trial court order was final and appealable. This court, in a divided opinion, found that because the plaintiff had an absolute right to refile the cause under section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a), the order dismissing the cause for want of prosecution was not a final and appealable order under Supreme Court Rule 301 (73 Ill. 2d R. 301). Flores v. Dugan (1982), 91 Ill. 2d 108, 112.

The court reasoned:

“A final judgment has been defined as a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 119; C.J.S. Judgments sec. 5 (1947).) We have also stated on many occasions that a judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171; Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 48.) The order or judgment in this case, dismissing the cause for want of prosecution, is not a final order since the plaintiffs had an absolute right to refile the action against the same party or parties and to reallege the same causes of action. Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill. 2d 616; Franzese v. Trinko (1977), 66 Ill. 2d 136; Ill. Rev. Stat. 1979, ch. 83, par. 24a.” (91 Ill. 2d 108, 112-13.)

In light of this court’s decision in Flores, it is clear that the order of dismissal for want of prosecution in the instant case is not a final and appealable order. Pursuant to section 24 of the Limitations Act, counsel could have refiled the action within one year after the dismissal on April 21, 1980. The plaintiff failed to pursue the proper remedy.

Accordingly, the decision of the appellate court dismissing this appeal is affirmed.

Judgment affirmed.

JUSTICE MORAN took no part in the consideration or decision of this case.

JUSTICE SIMON,

dissenting:

I appreciate that the majority opinion is filed out of a sense of respect for precedent. Nevertheless I dissent not only for the reasons set forth in the dissenting opinion in Flores v. Dugan (1982), 91 Ill. 2d 108, 115 (Simon, J., dissenting), but also to point out the great number of authorities which are opposed to the Flores reasoning. The courts of several other States, the Federal courts, and various commentators have found dismissals of cases without prejudice or with leave to refile to be appealable final orders, the important point being that such dismissals ended the litigation as far as the trial court was concerned. United States v. Wallace & Tiernan Co. (1949), 336 U.S. 793, 795 n.1, 93 L. Ed. 1042, 1047 n.1, 69 S. Ct. 824, 825 n.1; Elfenbein v. Gulf & Western Industries, Inc. (2d Cir. 1978), 590 F.2d 445; Allied Air Freight, Inc. v. Pan American World Airways, Inc. (2d Cir. 1968), 393 F.2d 441 (dismissal for want of prosecution); Tierce v. Knox (1922), 207 Ala. 121, 92 So. 263; Beck v. Barnett National Bank (Fla. App. 1960), 117 So. 2d 45; Aiona v. Wing Sing Wo Co. (1962), 45 Hawaii 427, 368 P.2d 879; Solomon v. Continental Baking Co. (1936), 174 Miss. 890, 165 So. 607 (dismissal for want of prosecution); Goldman v. McShain (1968), 432 Pa. 61, 247 A.2d 455; Montgomery Ward & Co. v. Smith (D.C. App. 1980), 412 A.2d 728; see, e.g., 9 Moore, Federal Practice sec. 110.08[1], at 113 (2d ed. 1982); 2 Ill. L. & Prac. Appeal and Error sec. 130, at 208 (1953); Restatement (Second) of Judgments sec. 13, comment b, at 132-33 (1982); 1 A. Freeman, Judgments sec. 22, at 35 n.4 (5th ed. 1925); K. Llewellyn, The Common Law Tradition: Deciding Appeals 294 (1960).

The rule adopted in Flores and now perpetuated in this case permits trial courts to act in arbitrary fashion and at the same time immunize their orders from appellate review. This can only breed disrespect for the judicial system.

Flores v. Dugan represents a distinct minority viewpoint in the United States; perhaps no other jurisdiction has reached that result. No contrary authority has been cited in this case except Flores v. Dugan and a few decisions of the appellate court of this State which were relied on by the majority in Flores v. Dugan. There probably are none. As far as our appellate court is concerned, I pointed out in Flores v. Dugan that it has held far more frequently than not that dismissals for want of prosecution with leave to refile are appealable. I respectfully suggest that instead of continuing to follow precedent which is mistaken we consider returning to the mainstream on this issue at the earliest opportunity.


author: JUSTICE MORAN JUSTICE SIMON,

text:
    (No. 56868.

      In re MARRIAGE OF FRANCINE LEOPANDO, Appellee, and OLIVO LEOPANDO, Appellant.

      Opinion filed April 22, 1983.

      Feiwell, Galper, Lasky, Ltd., of Chicago, for appellant.
    Gregory P. Turza, of Chicago, for appellee.
   JUSTICE MORAN

delivered the opinion of the court: On December 9, 1981, the circuit court of Cook County entered an order dissolving the marriage of plaintiff, Francine Leopando, to defendant, Olivo Leopando. On December 15, 1981, the court awarded permanent custody of the parties’ minor child, Philippe, to defendant. The custody order stated “that there is no just reason to delay enforcement or appeal of this Order” and reserved for future consideration the issues of maintenance, property division, and attorney fees. The appellate court reversed and remanded the cause, concluding that the order awarding custody to defendant was contrary to the manifest weight of the evidence. (106 Ill. App. 3d 444.) We granted defendant leave to appeal.

Two issues are raised for review: (1) whether the custody order was final and appealable under Supreme Court Rule 304(a), and (2) whether the trial court’s decision awarding custody to défendant was contrary to the manifest weight of the evidence.

Supreme Court Rule 304(a) provides, in part:

“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 enforcement or appeal.*** 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.”

73 Ill. 2d R. 304(a).

Defendant questions the appealability of the custody order under the above-quoted rule. Plaintiff answers by stating that this issue was not raised in the appellate court, and our review of the briefs filed in that court substantiates plaintiff’s claim. Consequently, under the authority of this court’s recent decision in In re Marriage of Cohn (1982), 93 Ill. 2d 190, the issue could be considered waived.

In Cohn it was held that, under the former language of section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 401(3)), trial courts could not enter an order dissolving the marriage while reserving questions of support, maintenance, custody and property disposition for future consideration. Although determining that the provisions of section 401(3) were mandatory, this court implicitly found that they did not present a jurisdictional requirement. Therefore, in the absence of an objection to the order, and where the issue was not raised on review, it was deemed to have been waived.

Similarly, Rule 304(a) does not present a jurisdictional requirement in the sense that it cannot be waived. The question arising under our rule concerns the right to appeal a judgment and not whether the judgment entered in the trial court is proper. We would therefore be justified in declining to consider the issue of whether the custody order was final and appealable. However, a review of recent case law involving the effect of Rule 304(a) on the appealability of dissolution orders convinces us that the issue should be addressed.

It seems clear that the law at the time of the instant appeal implied that custody orders, containing the requisite Rule 304(a) language by the trial court, were immediately appealable. (See, e.g., Atkinson v. Atkinson (1981), 87 Ill. 2d 174; In re Marriage of Cohn (1981), 94 Ill. App. 3d 732; In re Marriage of Nilsson (1980), 81 Ill. App. 3d 580.) For example, in Atkinson, the trial court awarded custody of the parties’ children to the mother, and reserved the questions of support, property division, and assessment of fees and costs. The order did not contain the Rule 304(a) language that there is no just reason to delay enforcement or appeal. In holding that the custody order was not appealable, this court stated:

“Under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), where multiple claims for relief are involved in an action, an appeal from a final judgment as to less than all of the claims may only be taken if the trial court has made an express written finding that there is ‘no just reason for delaying enforcement or appeal.’ No such finding was made here. Thus, the custody order was not a judgment from which an immediate appeal could be taken.” 87 Ill. 2d 174, 177.

A fair reading of Atkinson indicates that a custody order is a final judgment as to less than all of the claims in a dissolution proceeding. Implicitly, the only reason the order was deemed nonappealable was the trial court’s failure to recite the requisite Rule 304(a) language. For a number of reasons, we do not believe that a custody order constitutes a final judgment as to a separate claim in a dissolution proceeding.

Subsequent to the appeal taken herein, this court amended Supreme Court Rule 306, which amendment became effective on July 1, 1982. Rule 306(aXl) provides, in part:

“An appeal may be taken in the following cases only on the allowance by the Appellate Court of a petition for leave to appeal:
(v) from interlocutory orders affecting the care and custody of unemancipated minors, if the appeal of such orders is not otherwise specifically provided for elsewhere in these rules.” (Emphasis added.) (87 Ill. 2d R. 306(a)(l)(v).)

The language of this provision specifically indicates that a custody order is an interlocutory order. Indeed, if such orders were final, for purposes f Rule 304(a), there would be no need for Rule 306(a)(1)(v).

A further reason counseling against the appealability of a custody order pursuant to Rule 304(a) is that it does not constitute a separate “claim” in a dissolution proceeding. A petition for dissolution advances a single claim; that is, a request for an order dissolving the parties’ marriage. The numerous other issues involved, such as custody, property disposition, and support are merely questions which are ancillary to the cause of action. (See In re Marriage of Lentz (1980), 79 Ill. 2d 400, 409 (Ward, J., concurring).) They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim. In fact, it is difficult to conceive of a situation in which the issues are more interrelated than those involved in a dissolution proceeding. Should the trial court decline to grant the petition for dissolution, no final relief may be obtained relevant to the other issues involved. On the other hand, where a dissolution of marriage is granted, a determination as to which party receives custody will necessarily affect how much, if any, support and maintenance are paid. Practically speaking, then, until all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated. See Davis v. Childers (1965), 33 Ill. 2d 297 (Rule 304(a) does not authorize an appeal from an action involving a single claim in which fewer than all the issues have been resolved).

This result is further compelled by the policy consideration upon which Rule 304(a) is based. As this court noted in In re Marriage of Lentz (1980), 79 Ill. 2d 400, 407:

“The provisions of our rule were aimed at discouraging piecemeal appeals in the absence of some compelling reason and at removing the uncertainty as to the appealability of a judgment which was entered on less than all of the matters in controversy. See Getzelman v. Koehler (1958), 14 Ill. 2d 396, 400; Davis v. Childers (1965), 33 Ill. 2d 297, 300.”

(See also Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 177.) To interpret Rule 304(a) as plaintiff suggests would allow a party, upon obtaining the trial court’s special finding, to file separate appeals from adverse judgments as to each issue involved in a dissolution proceeding. Our rule was not intended to promote such unnecessary piecemeal. litigation arising out of the same proceeding.

Similarly policy considerations were involved in In re Marriage of Cohn (1982), 93 Ill. 2d 190. Quoting the historical and practice notes to section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Ann. Stat., ch. 40, par. 401(3), Historical and Practice Notes, at 105 (Smith-Hurd (1980)), this court noted that the provision “encourages the court to decide all matters incident to the dissolution in a single judgment, to the fullest extent of its authority, in order to achieve finality, promote judicial economy, and avoid multiple litigations and complications which can result from the entry of partial judgments, particularly judgments which dissolve the marriage but ‘reserve’ remaining issues for later determination.” (Emphasis added.) (93 Ill. 2d 190, 197-98.) The sound policy of resolving all matters incident to dissolution in a single judgment should not be circumvented by the mere inclusion of Rule 304(a) language.

For all of the above reasons, we hold that issues raised in a dissolution-of-marriage case are not separate claims and therefore not appealable under Rule 304(a). Nevertheless, because prior case law has indicated otherwise, we do not believe it appropriate to dismiss the appeal in the instant case. In the future, Rule 306(a)(1)(v) is the proper vehicle by which a party may seek appellate review of an interlocutory custody order.

The final issue concerns the propriety of the trial court’s order awarding custody of the minor child to defendant. The appellate court cited numerous facts in support of its conclusion that the trial court’s decision was against the manifest weight of the evidence. It would only prolong this opinion to restate the same facts here. We have reviewed the record and find ample support for the appellate court’s conclusion that the custody order was contrary to the best interests of the minor.

Accordingly, for the reasons stated herein, the judgment of the appellate court is affirmed, and the cause remanded to the circuit court of Cook County.

Affirmed and remanded.

JUSTICE SIMON,

specially concurring:

I concur in the portion of the majority’s opinion which discusses the merits of the custody order. It was proper to award custody of the minor child to his mother instead of to his father and I find no fault with the conclusion which appears in the next to the last paragraph of the majority opinion. However, I believe that the circuitous route the majority follows in deciding whether the circuit court’s custody order was appealable leads to an undesirable precedent.

The majority concludes that Francine Leopando, the mother, could not appeal, under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), the permanent custody order entered in this case and granting custody to the father. However, instead of dismissing the appeal, the court proceeds to consider the merits of the controversy over custody because previous cases have held custody orders were appealable under Rule 304(a) and also because the defendant did not question in the appellate court whether the custody order was appealable. I would hold that the permanent custody order was appealable under Rule 304(a) whether or not the defendant raised the question of its appealability. Because I agree with the court’s ultimate disposition of the case I specially concur in the judgment.

Supreme Court Rule 304(a) provides in part:

“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 enforcement or appeal.” 73 Ill. 2d R. 304(a).

The permanent custody order in this case was a “final judgment.” A final order under Rule 304(a) is one that terminates the merits of a particular claim such that the trial court has only to proceed with execution of its order. (In re Marriage of Nilsson (1980), 81 Ill. App. 3d 580, 584; Pettit v. Pettit (1978), 60 Ill. App. 3d 375, 378.) The permanent award of custody to the father gave the father the exclusive right to custody and control of the child and in fact reversed the prior award of temporary custody to the mother. After the trial court entered the permanent award, all that remained of that claim was to enforce it. Although other issues remained extant in the dissolution proceedings, the custody order became an appealable order when the trial court, pursuant to the provisions of Rule 304(a), expressly found that there was no just reason to delay appeal or enforcement of the order.

The majority, however, contends that the request for a custody determination is not a separate “claim” in the dissolution proceeding and thus cannot give rise to a separate appeal under Rule 304(a). The provisions of the Illinois Marriage and Dissolution of Marriage Act relating to custody matters refute this contention, for they treat the custody issue as independent and separate from any other issues in the dissolution proceeding. Section 602(a) of the Act provides that “[t]he court shall determine custody in accordance with the best interest of the child.” (Ill. Rev. Stat. 1981, ch. 40, par. 602(a).) That provision creates a reviewable standard for resolving custody matters that is completely independent from other issues in the dissolution proceeding. In fact, section 603(b) of the Act specifically states that the custody proceeding may continue and a custody award may be entered even if the dissolution proceeding is dismissed, provided that “the circumstances of the parents and the best interest of the child requires that a custody judgment be issued.” (Ill. Rev. Stat. 1981, ch. 40, par. 603(b).) Thus, these two sections of the Act recognize that a custody contest is an independent claim in the dissolution proceeding, and I would recognize it as such by holding that it may give rise to a final and appealable order when the trial judge makes the finding required by Rule 304(a).

In re Marriage of Cohn (1982), 93 Ill. 2d 190, is not inconsistent with my interpretation of Rule 304(a). Cohn held that section 401(3) of the Act prior to its August 14, 1981, amendment (Ill. Rev. Stat. 1977, ch. 40, par. 401(3)) denied the circuit court jurisdiction to enter a final judgment of dissolution before resolving collateral issues in the dissolution proceeding such as child custody and property settlement. The present case involves the reverse situation: whether the trial court can enter a final and appealable judgment on permanent child custody before entering a final judgment of dissolution. Nothing in Cohn compels that we find both practices impermissible.

The majority fails to observe that the language of section 401(3) of the Act prior to its August 14, 1981, amendment expressly prohibited the practice involved in Cohn, but it does not expressly prohibit the entry of orders pertaining to permanent custody of minor children before entry of the dissolution order. Although, as the majority notes, the policy of section 401(3) is to promote the comprehensive resolution of all matters relating to a dissolution proceeding in a single judgment, I believe that our Rule 304(a) is consistent with this policy, while at the same time it recognizes that other important policies may in some cases militate in favor of the immediate appeal of one of the claims involved in a larger dispute.

Rule 304(a) prevents the appeal of a final judgment that does not dispose of all the claims in an action unless and until the circuit court judge finds that there is no just reason to delay appeal. This requirement is “aimed at discouraging piecemeal appeals in the absence of some compelling reason.” (Emphasis added.) (In re Marriage of Lentz (1980), 79 Ill. 2d 400, 407.) What the majority overlooks is that in many cases there are compelling reasons for the prompt appeal of final judgments deciding who will have permanent custody of a child. Here, for example, the circuit court’s order of permanent custody reversed the prior award of temporary custody to the mother. Under such circumstances how do we accomplish justice by relying on overly technical interpretations of our rules with the result that a prompt and final appellate resolution of permanent custody orders by the appellate courts may be thwarted even though a circuit court judge has expressly found that there is no just reason to delay enforcement and appeal? As the majority admits, prior cases supported the immediate appealability of such orders under Rule 304(a) (e.g., Atkinson v. Atkinson (1981), 87 Ill. 2d 174; In re Marriage of Cohn (1981), 94 Ill. App. 3d 732; In re Marriage of Nilsson (1980), 81 Ill. App. 3d 580). Those cases make good sense, and I would follow them here and retain the viability of the procedure they allow.

The majority views Rule 306(a)(1)(v) as a substitute for Rule 304(a) in custody matters. I view it as a supplement to Rule 304(a) when that rule is not applicable because the order involves temporary custody rather than permanent custody or the order involves permanent custody but the trial judge fails to make the written finding contemplated by Rule 304(a). Under Rule 306(a)(1)(v), the parties may appeal from “interlocutory orders affecting the care and custody of unemancipated minors.” (87 Ill. 2d R. 306(a)(1)(v) (amended eff. July 1, 1982).) This rule recognizes that in many cases it is extremely important that a final resolution of custody issues occur promptly in our appellate courts. Rule 306(a)(1)(v) permits the parties to appeal, with leave of the appellate court, temporary custody orders and permanent custody orders where the circuit court has refused or neglected to make the express finding that there is no reason to delay enforcement or appeal. Such permanent custody orders are “interlocutory” in the sense that, in the absence of such a finding, the order “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.” 87 Ill. 2d R. 304(a).

It was not my understanding when we adopted Rule 306(a)(1)(v), effective on July 1, 1982, that it was rendering Atkinson obsolete and eliminating Rule 304(a) as a vehicle for resolving permanent custody disputes. My recollection is that we designed Rule 306()(1)(v) to handle the situation where the trial judge refused to make the finding which would make a custody order appealable under Rule 304(a). In many such instances the aggrieved party would file an original mandamus action in our court seeking an order directing the trial judge to enter such a finding. It was to relieve this court of such mandamus proceedings and to have the appellate court instead make the decision in such instances that Rule 306(a)(1)(v) was adopted. It was not intended to replace or cut off other avenues of appeal under our rules. In fact, Rule 306(a)(1)(v) provides it is only applicable “if the appeal of such orders is not otherwise specifically provided for elsewhere in these rules.”

The problem with relying solely on Rule 306(a)(1)(v) as an avenue of appeal of custody orders is that the appellate court can refuse to take the appeal, leaving the final determination of permanent custody in limbo. It seems to me that resolution of permanent custody is of extreme importance to the welfare of the minor. Only in that way can we assure that the minor will not be bounced around between the mother and father, a possibility not foreclosed by the procedure favored by the majority. If the trial judge certifies that the question of permanent custody should receive the immediate attention of our reviewing courts by making the finding required by Rule 304(a), what is accomplished by the majority’s view of proper procedure which could leave the question of custody indefinitely unresolved while the parties haggle over properly settlements and other issues in the dissolution proceeding? I do not consider this to be in the best interest of minor children, and that is why I disagree with the majority’s approach.

For all these reasons I would hold that the permanent custody order entered in this case was appealable under Rule 304(a) because the circuit court judge expressly found that there was no just reason to delay enforcement or appeal. Inasmuch as the majority reaches the merits of the custody order, even though it decided that the order was not appealable, and because I agree with the majority’s treatment of the merits, I concur in the court’s judgment affirming the judgment of the appellate court. I disagree with the majority’s reasoning because in many cases it could prevent the parties from settling questions of custody expeditiously, with resulting detriment to minor children.


author: JUSTICE UNDERWOOD JUSTICE SIMON,

text:
    (No. 56622.
    UNITED AIRLINES, INC., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Rogers Walker, Appellant).

      Opinion filed April 22, 1983.

    Rehearing denied May 27, 1983.

      James Lewis Kaplan and Kathleen Boyle Anderson, of Kaplan, Sorosky & Hoffman, Ltd., and Stuart J. Strongin, all of Chicago, for appellant.
    Wiedner & McAuliffe, Ltd., of Chicago (Richard J. Leamy, Jr., of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Respondent, United Airlines, Inc., employed claimant, Rogers Walker, as a ramp serviceman at its San Francisco International Airport terminal. Claimant was allegedly injured on three occasions in the course of his employment in California and, on the basis of his initial employment period with respondent as a ramp serviceman at its O’Hare International Airport facilities in Chicago, filed for benefits under the Illinois Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.). Following a contested proceeding confined solely to the issue of whether the Industrial Commission possessed jurisdiction to award compensation, the arbitrator concluded that jurisdiction existed, and the Commission affirmed that decision on review. The circuit court of Cook County reversed, and claimant filed a notice of appeal to this court (73 Ill. 2d R. 302(a)).

Extensive testimony by claimant at the hearings before the arbitrator and the Commission revealed the following facts. Claimant, an Illinois resident, was first employed in Chicago as a ramp serviceman by respondent from April 1969 until July 1970, when he voluntarily left respondent’s employ. He was rehired in the same position in April 1972. As a part of the hiring process on both occasions, respondent’s personnel department required claimant to complete a short “screening” application, a formal employment application, and a general aptitude test, and to undergo a physical examination conducted by respondent’s physician. In addition, he was photographed, fingerprinted, and required to fill out income tax and labor union forms. After a security investigation was satisfactorily concluded, respondent notified claimant that he could report to work, subject to a 90-day probationary period during which he could be summarily dismissed. Upon being rehired, claimant’s seniority status began to accrue as of the April 1972 hiring date and did not include the earlier period.

Several years later claimant filed applications for a transfer to one of four different positions. The first available opening for a position requested by claimant was for that of mechanic’s helper at San Francisco International Airport, and respondent granted his transfer request in February 1976. Claimant did not undergo the extensive processing conducted when he joined respondent’s work force at O’Hare International Airport, but rather was required only to pose for a new photograph and was issued a new membership card by the local union. The employee identification number assigned to claimant by respondent remained the same, as did his seniority status.

Claimant was given two weeks of training by respondent and worked for approximately two months as a mechanic’s helper before he resumed work as a ramp serviceman. The record indicates that transferred employees are also subject to a 90-day probation period, but under the terms of the collective-bargaining agreement governing claimant’s employment contract, individuals who change positions and fail to successfully complete the probationary period are apparently entitled to resume their former duties.

On September 30, 1976, and May 19, 1977, claimant was allegedly injured in the course of his employment. Temporary disability benefits were paid under California law, and applications for permanent compensation for those injuries are also pending in that State. Claimant also filed applications for adjustment of claims with the Illinois Industrial Commission and agreed with respondent to submit as the only issue in initial proceedings the question of whether his claims fell within the Commission’s jurisdiction. As earlier noted, the arbitrator held that claimant’s employment contract had been made in Illinois and that jurisdiction existed, and that decision was affirmed by the Commission. Soon after the hearing held before the Illinois arbitrator, claimant filed a third claim based on an injury allegedly suffered on March 2, 1979, and the Commission determined that it also had jurisdiction over that matter. All claims were consolidated in the circuit court and reversed, because that court believed the spirit of this court’s decision in Youngstown Sheet & Tube Co. v. Industrial Com. (1980), 79 Ill. 2d 425, required a conclusion that the Commission lacked jurisdiction.

The language of the Illinois Workmen’s Compensation Act indicates, and the decisions of this court have recognized, that the Act was designed to have an extraterritorial effect. Employees covered by the Act include “[e]very person in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois ***" (Ill. Rev. Stat. 1975, ch. 48, par. 138.1(b)(2)). In addition, the title of the Act provides further evidence of its wide scope; the full title is “An Act to promote the general welfare of the people of this State by providing compensation for accidental injuries or death suffered in the course of employment within this State, and without this State where the contract of employment is made within this State; providing for the enforcement and administering thereof, and a penalty for its violation, and repealing an Act therein named.” (Ill. Rev. Stat. 1975, ch. 48, par. 138.) This court has held that employment contracts made in Illinois are normally to be interpreted as including an agreement by the parties to be bound by the Act even when the contemplated employment is exclusively in other States. See Johnston v. Industrial Com. (1933), 352 Ill. 74; Beall Brothers Supply Co. v. Industrial Com. (1930), 341 Ill. 193; see also Youngstown Sheet & Tube Co. v. Industrial Com. (1980), 79 Ill. 2d 425, 430; M.W.M. Trucking Co. v. Industrial Com. (1976), 62 Ill. 2d 245, 254; Morris v. Industrial Com. (1973), 55 Ill. 2d 563, 564.

The circuit court’s reliance upon Youngstown Sheet & Tube Co. v. Industrial Com. (1980), 79 Ill. 2d 425, for its holding that the Commission lacks jurisdiction in this cause is misplaced, as that decision is clearly inapposite upon its facts. Unlike the situation here, in which claimant’s employment with respondent was continuous and uninterrupted at the time of his transfer, the claimant in Youngstown was permanently “laid off” from his position in an Illinois plant. Several months later, he learned of an opening at an Indiana plant operated by his former employer and, after comprehensive hiring procedures were completed at that plant, he worked there for approximately 12 years before suffering the injury for which he sought benefits under Illinois law. Under the circumstances present in that case, this court concluded that there was no contractual basis for applying Illinois compensation law because the claimant’s Illinois employment contract had been terminated when his employment with the company had ended and that his new employment relationship was governed by a contract made in Indiana.

Similarly, respondent’s citation of Kennedy-VanSaun Manufacturing & Engineering Corp. (1934), 355 Ill. 519, for the proposition that a transfer also operates to transfer the situs of the employment contract is unpersuasive in light of the different facts present in that case. There the employee was transferred from a position with a parent New York company to a subsidiary located in Illinois, and this court held that his former employment contract, made outside of Illinois, had been superseded by a new contract with a new employer made within Illinois and that the Commission therefore had jurisdiction over the matter.

Respondent also urges that we apply a theory of jurisdiction suggested by Professor Larson that jurisdiction over compensation issues should be present only where the employment relationship is centered, and that the situs of that relationship should be governed by rules similar to those governing questions concerning an individual’s domicile. (4 A. Larson, Workmen’s Compensation secs. 87.40 through 87.42 (1982).) An exclusive application of that theory, however, is not consistent with the contractual basis of jurisdiction specified by our compensation act, and any change therein will have to be legislatively mandated.

Determining the existence of jurisdiction necessarily involves a factual inquiry as well as an application of the law. In their capacity as finders of fact, the arbitrator and the Commission found that the employment contract existing between claimant and respondent at the time of his injuries was made in Illinois. That finding is not contrary to the manifest weight of the evidence and must, therefore, be affirmed. (Globe Cab Co. v. Industrial Com. (1981), 86 Ill. 2d 354; Morin Erection Co. v. Industrial Com. (1980), 81 Ill. 2d 72; Eagle Sheet Metal Co. v. Industrial Com. (1980), 81 Ill. 2d 31.) We accordingly hold that the Industrial Commission has jurisdiction to entertain claimant’s applications for adjustment of claims.

The judgment of the circuit court of Cook County is accordingly reversed, and the decision of the Commission confirmed.

Circuit court reversed; Industrial Commission confirmed.

JUSTICE MORAN took no part in the consideration or decision of this case.

JUSTICE SIMON,

dissenting:

Under the majority’s interpretation of section 1 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1(b)(2)) a worker who has been permanently reassigned from Illinois to another State and who has worked in that State for many years is nevertheless entitled to claim workmen’s compensation in Illinois provided that he initially was hired in Illinois and briefly worked here. I do not believe that the legislature ever intended this strange result, and I fear that the majority opinion will tend to diminish the confidence that both employers and employees have in the fairness and rationality of the workmen’s compensation remedy for work-related injuries. Although the respondent in this case did not raise the issue, I also note that it is an open question whether assumption of jurisdiction over this type of employment relationship by Illinois comports with the “significant contacts” requirement of the due process clause. See Allstate Insurance Co. v. Hague (1981), 449 U.S. 302, 66 L. Ed. 2d 521, 101 S. Ct. 633.

The Illinois workmen’s compensation remedy is only available to persons who are “employees” as defined in the Act. The Act defines employees as “[e]very person in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois, persons whose employment results in fatal or non-fatal injuries within the State of Illinois where the contract of hire is made outside of the State of Illinois, and persons whose employment is principally localized within the State of Illinois, regardless of the place of the accident or the place where the contract of hire was ***.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 48, par. 138.1(b)(2).) The respondent admits that the claimant originally was hired under a contract “made within the State of Illinois.” Respondent, however, contends that the claimant’s permanent transfer to California divested the Illinois Industrial Commission of jurisdiction over the injuries suffered by the claimant in California.

The majority, relying on the language of the statute, concludes that the permanent transfer to California was simply a modification of the original Illinois employment contract. But the traditional rules of contract formation and modification, designed for use in a completely different context, have little relevance in deciding whether the Illinois Industrial Commission shall retain jurisdiction over the claim of a nonresident worker who has permanently transferred to another State. Even if these rules were applicable in deciding the question presented in this case, I believe that they support the respondent’s position. When the claimant permanently transferred to the new job in California, the Illinois employment contract was discharged and a new contract was established under California law. Cf. McCluney v. Jos. Schlitz Brewing Co. (8th Cir. 1981), 649 F.2d 578, 583 aff'd mem. (1981), 454 U.S. 1071, 70 L. Ed. 2d 607, 102 S. Ct. 624 (employee goes to work at brewer’s Missouri plant in 1956; permanent transfer to North Carolina plant in 1970 and to Wisconsin plant in 1975 created new employment contracts and discharged the earlier Missouri employment contract).

In deciding this case, however, I would not rely, as the majority does, on the arcane rules of contract formation. Instead, I believe we should recognize that the purpose of the Illinois Workmen’s Compensation Act is to permit a prompt and fair recovery for work-related injuries to workers with some substantial relationship to the State of Illinois. When an employee is permanently transferred to another State, I do not believe that anything in the Act requires that he retain a remedy in this State for work-related injuries suffered in his new State of residence.

Professor Larson proposes an “employment relation” test in such situations:

“Of the three original theories on extraterritoriality-tort, contract, and employment relation — the last is the most relevant to compensation theory and the least artificial. In this view, the existence of the employer-employee relation within the state gives the state an interest in controlling the incidents of that relation, one of which incidents is the right to receive and the obligation to pay compensation.
*** The big question under this theory is: What is meant by ‘existence of the relation within the state?’ The location of an injury is easy to identify; the location of a contract less so, but still subject to well-known legal rules; but the whereabouts of a relation between two people has a somewhat more mystic quality.
The making of the contract within the state is usually deemed to create the relation within the state. The relation, having thus achieved a situs, retains that situs until something happens that shows clearly a tranference of the relation to another state. This transfer is usually held to occur when either a new contract is made in the foreign state, or the employee acquires in the foreign state a fixed and nontemporary employment situs. The analogy to the law governing residence is apparent, with the old residence persisting until the new one becomes fixed. In some kinds of employment, like trucking, flying, selling, or construction work, the employee may be constantly coming and going without spending any longer sustained periods in the local state than anywhere else; but having rooted his status in the local state by the original creation of the relation there, he does not lose it merely on the strength of the relative amount of time spent in the local state as against foreign states. He loses it only when his regular employment becomes centralized and fixed so clearly in another state that any return to the original state would itself be only casual, incidental and temporary by comparison. This transference will never happen as long as his presence in any state, even including the original state, is by the nature of his employment brief and transitory.” 4 A. Larson, Workmen’s Compensation secs. 87.41, 87.42 (1983).

At least one State has adopted the “employment relation” test in this context. In Poliquin v. DeSoto Kerns Co. (1978), 118 N.H. 371, 386 A.2d 1287, the New Hampshire Supreme Court held that a worker was not entitled to file a workmen’s compensation action in New Hampshire for an injury suffered in Texas. The New Hampshire statute provided that injuries suffered outside the State are compensable “if the contract of employment was made in [New Hampshire].” (N.H. Rev. Stat. Ann. (1977), ch. 281:13.) The worker had originally been hired by DeSoto to work in its New Hampshire plant. He worked in New Hampshire for five years and then applied for and received a voluntary transfer to DeSoto’s California plant. After working for nearly a year in California, the worker was transferred to DeSoto’s Texas plant, where he was injured several months later. The New Hampshire Supreme Court expressly approved of the test proposed by Professor Larson and observed that “plaintiff’s employment in Texas was so unrelated and remote from the employer-employee relationship which arose in New Hampshire that [the New Hampshire jurisdictional provision for out-of-State injuries] was not intended to provide coverage for the Texas injury.” 118 N.H. 371, 373, 386 A.2d 1287, 1289; see also Phillips v. Oneida Motor Freight, Inc. (1978), 163 N.J. Super. 297, 394 A.2d 891 (adopting Professor Larson’s “employment relation” standard in a similar context).

The majority opinion contends that the “employment relation” inquiry proposed by Professor Larson, and adopted in New Hampshire, is not authorized by our statute. The New Hampshire statute, however, has virtually the same language as our own, and the New Hampshire Supreme Court had no difficulty adopting and applying this test in Poliquin. The question is essentially one of policy and comity: Why should Illinois retain jurisdiction over the claim of a nonresident worker who is injured out of State when that worker has voluntarily severed any relations he ever had with this State?

Adoption of the “employment relation” standard would be consistent with prior Illinois authority. We have interpreted the Workmen’s Compensation Act as requiring an employment relation to Illinois before the Industrial Commission has jurisdiction over the work-related injuries of nonresident workers. In Arnold v. Industrial Com. (1960), 21 Ill. 2d 57, and McLain Dray Lines v. Industrial Com. (1969), 41 Ill. 2d 554, this court held that the Illinois Industrial Commission does not have jurisdiction over the claim of a nonresident employee who was injured in Illinois but who only had a brief and transitory relationship with this State. Although the worker’s accident occurred in Hlinois in the course of his employment as a truck driver and his claim thus appeared to be covered by the automatic-coverage provisions in section 3 of the Act (Ill. Rev. Stat. 1967, ch. 48, par. 138.3(3) (carriers by land automatically covered under the Act)), this court held in Arnold that “[i]t is evident *** that in determining whether the act applies, the presence of some connection between Illinois and the employment relationship, rather than the mere situs of the injury, is the significant factor.” (21 Ill. 2d 57, 61.) The court held that the dismissal of the worker’s claim was proper because nothing in the record “would give Illinois an interest in this employment relationship or the incidents thereof.” 21 Ill. 2d 57, 62.

I would hold that the same “employment relation” requirement limits the Commission’s jurisdiction to entertain the claims of nonresident workers who are injured out of State while working under a contract made in Illinois. The circuit court properly applied this standard, and I would affirm its holding that the Commission had no jurisdiction in this case. The claimant has permanently transferred his place of work to California. There is every indication that he intends to remain there indefinitely and has no intention of ever returning to Illinois. He has joined a local union, opened a local checking account, bought a house, sent his children to local schools, obtained a California driver’s license, and filed income tax returns in the State of California. I also note that he has filed claims in California for workmen’s compensation for two of the three injuries involved here.

Although our statute prohibits a double recovery (see Ill. Rev. Stat. 1975, ch. 48, par. 138.1(b)(2), see also Goldblatt Brothers, Inc. v. Industrial Com. (1981), 86 Ill. 2d 141 (workers may initiate worker’s compensation proceedings in other States while maintaining proceedings in Illinois as well, but may not recover twice for the same injury)), I do not see why we should allow the dockets of our Industrial Commission and our courts to be clogged by workmen’s compensation claims by nonresident workers who have voluntarily severed any relation to this State. The claimant has a forum for his claim in California, and he should pursue it there; we should not permit him to shop here for a more favorable result.

CHIEF JUSTICE RYAN joins in this dissent.


text:
    (No. 56770.

      In re S.R.H., a Minor, Appellee (The People of the State of Illinois, Appellant).

      Opinion filed April 22, 1983

      Tyrone C. Fahner, Attorney General, of Springfield, and Dennis Schumacher, State’s Attorney, of Oregon (Phyllis J. Perko and Martin P. Moltz, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
    G. Joseph Weller and Kathleen J. Hamill, of the Office of the State Appellate Defender, of Elgin, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

The respondent in these juvenile proceedings was adjudged delinquent and made a ward of the circuit court of Ogle County on April 1, 1981, following a hearing at which the trial judge found respondent guilty of burglary. On appeal, a divided appellate court reversed the trial court’s judgment, holding that the failure to specifically allege respondent’s lack of authority to enter the private premises involved rendered fatally defective the supplemental petition filed by the State. (106 Ill. App. 3d 276.) We granted the State’s petition for leave to appeal.

It is unnecessary for us to detail respondent’s unfortunate history other than to note that he had been placed on probation on June 24, 1980. Alleging that respondent had violated the conditions of his probation, the assistant State’s Attorney filed a petition for revocation of probation on January 14, 1981. On the motion of respondent’s probation officer, the trial court required respondent to undergo psychiatric evaluation at the Singer Zone Center, during which respondent escaped and committed the acts with which we are concerned. No further action was taken under the petition for revocation of probation, but a supplemental delinquency petition was filed alleging that “On or about February 28, 1981, in Monroe Center, Ogle County, Illinois, said minor [respondent] did commit the offense of BURGLARY in violation of Sec. 19—1, of Ch. 38 of the Ill. Rev. Stat. of said State, in that said minor knowingly entered a building, a garage of James Marx, located at R.R. 1, Eddy Road, Monroe Center, Illinois, with the intent to commit therein a theft.”

At the hearing held thereon, Sherry Oswald, a friend of respondent’s, testified that she and respondent had been riding in her car on the morning of March 1, and that respondent had informed her that “he knew somebody’s house that we could go to that we could get some stuff because they were at church.” She testified that respondent drove to the Marx residence and that she took a tape recorder from the garage while respondent removed some tools, placing them in the trunk of her car. Her testimony also revealed that although they had been driving in Rockford throughout the entire night and early morning of February 28 and March 1, neither she nor respondent used any alcohol or drugs, and respondent’s demeanor had been normal when they were at the Marx garage. Although psychiatric testing conducted prior to the hearing indicated that respondent was sane at the time of the theft, respondent’s testimony was limited to a statement that his recollection of the incident was vague and that he was unable to remember anything other than the actual removal of the tools.

James Marx testified that he worked with a church youth group and became acquainted with respondent when respondent joined that group approximately nine months prior to the hearing. Mr. Marx further stated that respondent had been a frequent visitor at the Marx residence, but that neither respondent nor any other member of the youth group was given permission to visit the premises when the Marxs were not at home. The testimony of Father Kierney, a priest who was acquainted with respondent, however, indicated that respondent had spent time alone in the Marx residence on at least one occasion.

At the close of the hearing, respondent’s attorney urged the trial court to find in favor of the respondent because the supplemental petition, which failed to characterize respondent’s entry into the Marx garage as “without authority,” did not state a cause of action and the evidence established a reasonable basis for an assumption by respondent that he had authority to enter the premises. These contentions were rejected by the trial court, which found him guilty of burglary and adjudged him delinquent.

The principal issue in this cause concerns the sufficiency of the allegations in the supplementary petition charging respondent with burglary. Under section 2—2 of the Juvenile Court Act, petitions in delinquency proceedings must allege facts establishing that the minor violated or attempted to violate a Federal or State law or municipal ordinance. (Ill. Rev. Stat. 1981, ch. 37, pars. 702—2, 704—1.) In addition, the Act provides minors the same procedural rights as adults “unless specifically precluded by laws which enhance the protection of such minors ***.” (Ill. Rev. Stat. 1981, ch. 37, par. 701—2(3)(a).) Respondent argues that these provisions, when considered together, require delinquency petitions to conform to the requirements of section 111—3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 111—3). That section provides in part:

“Form of Charge.
(a) A charge shall be in writing and allege the commission of an offense by: *** (3) Setting forth the nature and elements of the offense charged; ***” (Ill. Rev. Stat. 1981, ch. 38, par. 111-3.)

Pointing to the omission from the petition of the words “without authority” contained in the statutory definition of burglary, respondent contends that the petition was invalid because it failed to contain all of the elements of the offense. Section 19 — 1 of the Criminal Code of 1961 defines burglary:

“Burglary.
(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, *** with the intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1981, ch. 38, par. 19—1(a).)

While respondent’s argument has some surface logic, its premise is erroneous. It is well established that proceedings instituted under the Juvenile Court Act are not criminal in nature (see, e.g., People v. Woodruff (1981), 88 Ill. 2d 10; People v. Taylor (1979), 76 Ill. 2d 289; In re Beasley (1977), 66 Ill. 2d 385, cert. denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734), and we have consistently recognized that section 1—2(3)(a) does not extend to or guarantee to respondents in juvenile proceedings the rights accorded adult defendants in criminal proceedings. (See People v. Woodruff (1981), 88 Ill. 2d 10, 20; In re Beasley (1977), 66 Ill. 2d 385, 391.) Our conclusion that the requirements of section 111—3 of the Code of Criminal Procedure of 1963 are not applicable in juvenile proceedings is buttressed by the fact that those provisions appear exclusively in that code (cf. In re Beasley (1977), 66 Ill. 2d 385, 390), which governs only criminal prosecutions (Ill. Rev. Stat. 1981, ch. 38, par. 111—1 et seq.). As we said in Woodruff, “this court has recognized the unique nature of juvenile proceedings and the value of retaining a distinction between the juvenile and criminal processes.” (88 Ill. 2d 10, 19.) Adjudicatory hearings under the Juvenile Court Act are not intended to be adversary proceedings (Ill. Rev. Stat. 1981, ch. 37, par. 701—20) and do not lead to a criminal conviction (Ill. Rev. Stat. 1981, ch. 37, par. 702—9). Consequently, we cannot agree with respondent’s contention that the supplemental petition must conform to the requirements of section 111—3.

Although juvenile proceedings are clearly not criminal prosecutions, “certain due process safeguards normally associated with criminal proceedings have been extended for the protection of juveniles to accord to them fundamental fairness.” In re Beasley (1977), 66 Ill. 2d 385, 390. Even when we have characterized such proceedings as civil in nature (see, e.g., People ex rel. Hanrahan v. Felt (1971), 48 Ill. 2d 171; In re Fucini (1970), 44 Ill. 2d 305, appeal dismissed (1971), 403 U.S. 925, 29 L. Ed. 2d 704, 91 S. Ct. 2242), we have insisted upon adequate notice to the parties and that the proceedings otherwise comport with fundamental due process requirements. (In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428. See McKeiver v. Pennsylvania (1971), 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976; In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068. See also In re Thompson (1980), 79 Ill. 2d 262; People v. Taylor (1979), 76 Ill. 2d 289; In re Beasley (1977), 66 Ill. 2d 385.) Determining due process requirements in a given case, apart from statutory provisions, necessitates an examination of the proceedings in terms of fundamental fairness. In re Thompson (1980), 79 Ill. 2d 262; People v. Taylor (1979), 76 Ill. 2d 289, 302.

While the violation of law alleged in a delinquency petition need not be stated in conformity with criminal code requirements, fundamental fairness demands a statement of facts leaving no real doubt as to the acts charged. In measuring the sufficiency of that statement, we believe the standard used to determine the sufficiency of a criminal complaint challenged for the first time on appeal may appropriately be employed. Under that test, allegations are sufficient if they “ '*** apprised the accused of the precise offense with sufficient specificity to prepare his defense and allow the pleading of a resulting conviction as a bar to future prosecution arising out of the same conduct.’” People v. Walker (1980), 83 Ill. 2d 306, 314; quoting People v. Pujoue (1975), 61 Ill. 2d 335, 339. See also People v. Rege (1976), 64 in. 2d 473; People v. Grant (1974), 57 Ill. 2d 264.

Examination of the earlier-quoted charge in the supplemental petition leaves no doubt that it provided respondent with adequate notice of the acts charged and that he was not prejudiced by the omission of the phrase “without authority.” Similarly, the allegations are sufficiently specific to preclude, on double jeopardy grounds, any future prosecution based upon the same conduct. We accordingly hold the supplemental petition was valid. Respondent’s contention that the State failed to prove that his entry was unauthorized is not persuasive. Weighing the testimony of the witnesses regarding the extent of respondent’s authority, if any, was within the province of the fact finder, and it is well established that we will not substitute our judgment for that of the trier of fact to reverse a finding of guilt unless the evidence is sufficiently improbable to raise a reasonable doubt concerning that finding. (See, e.g., People v. Carlson (1980), 79 Ill. 2d 564, 583; People v. Vriner (1978), 74 Ill. 2d 329, 342; cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858; People v. Manion (1977), 67 Ill. 2d 564, 578, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) In light of the owner’s uncontroverted testimony that respondent was never given permission to enter his garage, coupled with his statement that respondent was never authorized to enter the Marx home when no one was at home, the evidence supporting the finding of guilt in this cause is not so improbable as to justify a reasonable doubt of respondent’s guilt.

For the reasons stated, the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed, circuit court affirmed.

JUSTICE SIMON,

dissenting:

I do not dispute that juvenile delinquency proceedings are different from criminal prosecutions, but I am unable to conclude for that reason, as the majority does, that juveniles are entitled to any less protection in assessing the sufficiency of a charge of criminal behavior against them than an adult in identical circumstances would enjoy. I would affirm the decision of the appellate court.

It is true, as the majority states, that proceedings under the Juvenile Court Act are not generally viewed as being of a criminal nature, and that this has certain implications regarding the safeguards that must be afforded defendants in various situations. Thus, for example, this court has held that the statutory right to a speedy trial (People v. Woodruff (1981), 88 Ill. 2d 10), a supreme court rule relating to acceptance of guilty pleas (In re Beasley (1977), 66 Ill. 2d 385, cert. denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734), and common law hearsay rules (People v. Taylor (1979), 76 Ill. 2d 289) did not apply in juvenile proceedings. As far as I am aware, however, it was never the rule that anything goes simply because the defendant is a juvenile. Indeed, this court has recognized that since orders of supervision (In re R.R. (1982), 92 Ill. 2d 423, 429) and probation (e.g., In re Sneed (1978), 72 Ill. 2d 326, 331-34) may result in a loss of liberty just as significant as if the defendant had been convicted as a criminal, various provisions in the Juvenile Court Act which enhance the protections accorded to minors for whom these orders are sought should be broadly construed to effect their purpose. Moreover, the court did not refuse to extend the safeguards in Woodruff, Taylor or Beasley to minors without discussing at some length why the safeguard was not essential from the standpoint of due process and was not intended by the legislature to apply to the particular juvenile proceeding at issue. In Taylor, the decision did not depend on the noncriminal nature of juvenile proceedings generally, but the court observed that the hearsay evidence in question possessed facial indicia of reliability and could therefore be admitted in a juvenile transfer hearing, in much the same fashion as hearsay evidence is admitted in sentencing hearings in criminal cases once guilt has been determined. (E.g., People v. La Pointe (1981), 88 Ill. 2d 482, 494-99.) In Woodruff and Beasley there was nothing to indicate that the statute or court rule in question was intended to apply to anyone other than a criminal defendant, for whose sole benefit they were promulgated.

The Juvenile Court Act is prefaced by the provision that “[t]he procedural rights assured to the minor shall be the rights of adults unless specifically precluded by laws which enhance the protection of such minors.” (Ill. Rev. Stat. 1979, ch. 37, par. 701—2(3Xa).) In section 2—2, the Act defines as delinquent “any minor who prior to his 17th birthday has violated or attempted to violate *** any federal or state law or municipal ordinance” (Ill. Rev. Stat. 1979, ch. 37, par. 702—2); in another section it requires that the delinquency petition set forth “facts sufficient to bring the minor under Section 2—1 [of the Act]” (emphasis added) (Ill. Rev. Stat. 1979, ch. 37, par. 704—1(2)(a)). Section 2—1 (Ill. Rev. Stat. 1979, ch. 37, par. 702—1) is entitled “Jurisdictional Facts” and refers to the statutory definition of a delinquent minor contained in section 2—2, which is quoted above. That, in my judgment, is a clear indication that the legislature intended to require notice in the charging instrument of all of the essentials of the violation on which the delinquency charge is founded. Although there is no direct statement in the Act that this was meant to include the “nature and elements” of the violation, as is required in the context of a criminal prosecution (emphasis added) (Ill. Rev. Stat. 1979, ch. 38, par. 111—3(a)(3)), neither is there anything in the Act which “specifically preclude[]” this interpretation, as section 1—2(3)(a) requires, and I find it difficult to understand how one can communicate the essentials of a charge without at least setting forth the essential elements which constitute the violation alleged.

The gist of burglary is not mere entry, regardless of intent; it is unauthorized entry with a felonious intent, or with the intent to commit a theft. Mere entry with felonious intent is not a violation of any law or ordinance that I know of. A charging instrument in a criminal case which charged only this would be facially defective and would have to be dismissed, at least if challenged in the trial court (People v. Lutz (1978), 73 Ill. 2d 204; People v. Abrams (1971), 48 Ill. 2d 446; see People v. Pujoue (1975), 61 Ill. 2d 335). I see no warrant for treating the minor in this case as if he had first raised the sufficiency of the delinquency petition on appeal and applying the lesser “actual prejudice” standard applicable in such cases (People v. Gilmore (1976), 63 Ill. 2d 23; People v. Pujoue (1975), 61 Ill. 2d 335) when in fact he raised it in the delinquency hearing. As I have mentioned, I find nothing in the Juvenile Court Act which specifically requires such lesser scrutiny, and without such a specific provision this court is not at liberty, under the Act itself (Ill. Rev. Stat. 1979, ch. 37, par. 701—2(3)(a)), to so treat a minor where an adult guilty of identical conduct and whose strategy at trial was the same would receive the full protection of the law as set forth in Lutz and Abrams. Nor am I impressed by appellate court statements from time to time that the element “without authority,” when missing from a charge of burglary, can be inferred without prejudice to the defendant because everybody knows lack of authority is an element of burglary. (People ex rel. McLain v. Housewright (1973), 9 Ill. App. 3d 803; see People v. Pettus (1980), 84 Ill. App. 3d 390, 393-94 (dictum); In re Whittenburg (1973), 16 Ill. App. 3d 224 (aggravated-battery charge upheld).) The holding of Lutz and Abrams is that, for purposes of challenges brought in the trial court, prejudice from such omissions is conclusively presumed.

Adjudications of delinquency may not be criminal convictions, but, as illustrated by this case, they often lead to incarceration. In addition, burglary is a serious charge, and a finding of guilt is likely to have severe consequences apart from incarceration for as long as it remains on the juvenile’s record. Just as we do not allow adults to be deprived of their liberty without a full recitation in the charging instrument of the elements of the crime alleged, neither should we allow juveniles to face detention in a State facility and a record of delinquency based on a burglary offense without a similar recitation when they are charged with serious antisocial conduct. The Juvenile Court Act says nothing to the contrary, and in fact appears to require this very recitation. I fail to see the justification for permitting the State to omit essential information from delinquency petitions more or less as it pleases when it would take so little effort to include the elements of the violation as the law requires they appear in an indictment or information.


text:
    (No. 56736.
    FOXCROFT TOWNHOME OWNERS ASSOCIATION et al., Appellants, v. HOFFMAN ROSNER CORPORATION, Appellee.

      Opinion filed April 22, 1983.
    Rehearing denied May 27, 1983.

      Timothy J. Reuland, of Aurora (Lindner, Speers & Reuland, P.C., of counsel), for appellants.
    Bruce A. Brown, of Aurora (Goldsmith, Thelin,, Schiller & Dickson, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Foxcroft Townhome Owners Association (Foxcroft) and members of the board of directors of Foxcroft filed a class action suit on behalf of all the condominium owners against defendant, Hoffman Rosner Corporation, the builder and developer of the condominiums. The complaint contained three counts;. count I sought relief for the breach of an implied warranty of habitability; count II alleged that defendant was negligent in using defective siding, or negligently installed the siding; count III alleged breach of a fiduciary relationship.

Pursuant to defendant’s pretrial motion, the circuit court of Kane County dismissed counts II and III for failure to state a cause of action. With respect to count I, the court denied the motion to dismiss as to those individuals who purchased their units directly from defendant. It granted the motion insofar as it related to subsequent purchasers who were not in privity with defendant.

Foxcroft subsequently filed an amended complaint, which again contained three counts. Count I, brought as a class action on behalf of the original purchasers, alleged breach of an implied warranty of habitability. The warranty was claimed to arise by virtue of the documents (bylaws, articles of incorporation and declarations) which defendant caused to be filed. Count II, based on a negligence theory, was also brought as a class action on behalf of the original purchasers. This count essentially claimed that defendant failed to exercise due care in constructing the buildings in a workmanlike manner. Count III was based on the same negligence theory as count II, but was brought on behalf of the subsequent purchasers. Defendant moved to dismiss the amended complaint, which motion was granted as to count III. The court denied the motion to dismiss counts I and II, and later ruled that the original purchasers could proceed on these counts by way of a class action.

Foxcroft thereafter filed a motion to have the trial court reconsider its orders dismissing, as to subsequent purchasers, counts I and II in the original complaint and count III of the amended complaint. This motion was denied. Defendant later moved for summary judgment on count II of the amended complaint on the theory that purely economic losses are not recoverable in tort. The trial court granted this motion.

Prior to trial, the original purchasers entered into a stipulation of settlement with defendant. The stipulation was expressly applicable only to the original purchasers, and did not affect any rights of the subsequent purchasers. On appeal to the appellate court, plaintiffs, the subsequent purchasers, contended that the trial court erred in dismissing counts I (implied warranty) and III (breach of fiduciary duty) of the original complaint, and count III of the amended complaint (negligence). Defendant argued that, by amending counts I and III of the original complaint, plaintiffs abandoned those counts. The appellate court was “inclined to agree,” but nevertheless reached the merits of the issues raised under counts I and III of the original complaint, and concluded that these counts were properly dismissed. With regard to count I, the appellate court agreed with the trial court and, on the basis of lack of privity, determined that plaintiffs failed to state a cause of action. It upheld the dismissal of count III because the drafting and recording of the condominium documents were insufficient to create a fiduciary relationship between plaintiffs and defendant as to the quality of workmanship and materials in the buildings. The court also affirmed the dismissal of count III of plaintiffs’ amended complaint because recovery may not be sought, in tort, for a purely economic loss. (105 Ill. App. 3d 951.) We granted plaintiffs leave to appeal.

The issues raised for review are (1) whether plaintiffs, by filing an amended complaint, waived their right to object to the trial court’s rulings on the original complaint and (2) whether they may recover damages for latent construction defects under the theories of implied warranty of habitability, negligence, or breach of fiduciary duty.

Counts I and III of the original complaint, alleging causes of action under the theories of implied warranty of habitability and breach of fiduciary duty, were not restated, or incorporated by reference, in the amended complaint. Plaintiffs cite three appellate court cases for the proposition that the original complaint may nevertheless be considered on review because they did not manifest an intent to abandon the original counts. (Moore v. Everett Snodgrass, Inc. (1980), 87 Ill. App. 3d 388; Field Surgical Associates, Ltd. v. Shadab (1978), 59 Ill. App. 3d 991; Enlow v. Illinois Central R.R. Co. (1968), 103 Ill. App. 2d 269.) However, this court and a majority of the appellate court cases have adhered to the well-established principle that a party who files an amended pleading waives any objection to the trial court’s ruling on the former complaints. (E.g., Bowman v. County of Lake (1963), 29 Ill. 2d 268; Cottrell v. Gerson (1939), 371 Ill. 174; Pickle v. Curns (1982), 106 Ill. App. 3d 734; Pearce v. Illinois Central Gulf R.R. Co. (1980), 89 Ill. App. 3d 22; In re Estate of DeKoekkoek (1979), 76 Ill. App. 3d 549; Henkhaus v. Barton (1977), 56 Ill. App. 3d 767; Erickson v. Walsh (1973), 11 Ill. App. 3d 99; Coffey v. MacKay (1972), 2 Ill. App. 3d 802; see People ex rel. Morris v. Opie (1922), 304 Ill. 521; Bennett v. Union Central Life Insurance Co. (1903), 203 Ill. 439.) “Where an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn.” Bowman v. County of Lake (1963), 29 Ill. 2d 268, 272.

There are significant policy considerations which favor adherence to this general rule. In particular is the interest in the efficient and orderly administration of justice. It is expected that a cause will proceed to trial on the claims as set forth in the final amended complaint.

This procedure ensures that the trial judge will be aware of the points in issue, and can properly rule on objections at trial. To allow a party to also introduce allegations related in earlier pleadings would result in confusion and impose an unnecessary burden upon the trial judge. No interest would be served by requiring the judge to speculate as to which legal theories or claims a party intends to advance during trial.

The complaint notifies the defendant of the alleged causes of action and theories of recovery. When a complaint is amended, without reference to the earlier allegations, it is expected that these allegations are no longer at issue. Defendants would be disadvantaged by a rule which would, in effect, permit a plaintiff to proceed to trial on different issues contained in separate complaints. In contrast, we perceive no undue burden in requiring a party to incorporate in its final pleading all allegations which it desires to preserve for trial or review.

Plaintiffs rely upon this court’s decision in Stenwall v. Bergstrom (1947), 398 Ill. 377. We do not find the case controlling. There the plaintiffs amended their complaint on three occasions. It was from the last amendment that an appeal was taken. In the opinion the court stated that “[i]t often becomes necessary *** to review the entire record to do justice between the parties in the cause.” (398 Ill. 377, 382.) Nevertheless the court found it need only consider the facts alleged in the last amendment in holding that it stated a cause of action.

“It has always been the rule in this State that if a party wishes to have the action of the court in overruling his demurrer reviewed, he must abide by his demurrer. By pleading over, he waives his demurrer and the right to assign error upon the ruling.” (Cottrell v. Gerson (1939), 371 Ill. 174, 179.) For the above-related reasons we adhere to this rule, and conclude that allegations in former complaints, not incorporated in the final amended complaint, are deemed waived. Accordingly, in the instant case, plaintiffs waived any objections to the trial court’s ruling on the original complaint. We therefore need not address the issues of whether plaintiffs may recover damages for latent construction defects under the theories of implied warranty of habitability or breach of a fiduciary duty.

Plaintiffs further contend that the trial court improperly dismissed count III of the amended complaint. As previously noted, this count is based on a negligence theory, and essentially alleges that defendant failed to construct the buildings in a workmanlike manner. Recovery is sought for the diminished fair market value of the buildings, and for the costs of repair and replacement of the allegedly defective siding.

As defendant points out, it has recently been determined that a plaintiff cannot recover, in tort, for solely economic losses. (Moorman Manufacturing Co. v. Na tional Tank Co. (1982), 91 Ill. 2d 69.) In Moorman, this court defined economic loss “as ‘damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits — without any claim of personal injury or damage to other property ***’ (Note, Economic Loss in Products Liability Jurisprudence, 66 Colum. L. Rev. 917, 918 (1966)) as well as ‘the diminution in the value of the product because it is inferior in quality, and does not work for the general purposes for which it was manufactured and sold.’ (Comment, Manufacturers’ Liability to Remote Purchasers for ‘Economic Loss’ Damages-Tort or Contract? 114 U. Pa. L. Rev. 539, 541 (1966).)” 91 Ill. 2d 69, 82.

On the authority of Moorman, this court has further held that latent construction defects, resulting in solely economic loss, are not recoverable under a negligence theory. (Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171.) In Redarowicz, the plaintiff, a subsequent purchaser of a single-family residence, brought suit against the defendant builder alleging, inter alia, that defendant was negligent in constructing the home. He sought recovery for the costs of repair or replacement of a defectively constructed chimney, wall and patio. In denying plaintiff relief as to the negligence counts, this court stated that “a disgruntled purchaser of a certain house cannot assert that, due to inferior workmanship that led to eventual deterioration, he can recover under a negligence theory in tort.” 92 Ill. 2d 171, 177.

Similarly, in the instant case, plaintiffs seek recovery for faulty construction that resulted in eventual deterioration. There is no allegation that the installation of defective siding resulted in physical injury, or damage to other property. Nor was the damage to the defective product itself due to a “sudden and dangerous occurrence best served by the policy of tort law.” (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 85.) Consequently, we hold that the losses alleged in count III of plaintiffs’ amended complaint are solely economic and not recoverable under a negligence theory.

In so holding, we recognize that certain other jurisdictions allow recovery in tort for economic losses. The majority of States, however, do not. (See Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 87-88, and cases cited therein.) Although plaintiffs urge us to do so, we perceive no reason to reconsider our holdings in Redarowicz and Moorman.

For the above-stated reasons, the judgment of the appellate court is affirmed.

Judgment affirmed.

JUSTICE SIMON,

concurring in part and dissenting in part:

I concur in the majority’s treatment of count III of the amended complaint, but I dissent from the majority’s decision that the plaintiffs waived any right to appeal the trial court’s dismissal of portions of the original complaint. The rules of waiver are based primarily on a theory of abandonment. As the majority notes, in many cases a party manifests an intention to abandon a claim by filing an amended pleading which makes no reference to a claim dismissed from an earlier pleading. (Bowman v. County of Lake (1963), 29 Ill. 2d 268, 272.) But pleading over is not a waiver when the plaintiffs have manifested a clear intention to continue reliance on their initial claim. Field Surgical Associates, Ltd. v. Shadab (1978), 59 Ill. App. 3d 991, 994.

After portions of the amended complaint were dismissed, the plaintiffs filed a motion to reconsider not only that order but the order striking portions of the original complaint as well. This motion, which expressly sought reinstatement of all counts of the original complaint and especially the implied-warranty-of-habitability claim by subsequent purchasers set out in count I and the fiduciary-duties claim set out in count III, was more than sufficient to preserve these issues for appeal. The filing of a new amended complaint relying on these theories would have been a senseless formality in view of the trial court’s recent dismissal of those counts in the original complaint. The motion for reconsideration sufficiently evidenced the plaintiffs’ intention to maintain these claims, and I would allow them to assert these claims on appeal. When plaintiffs have manifested a clear intent to retain a valid claim, we should not allow procedural technicalities to bar or delay their assertion of that claim.

Because I believe that the plaintiffs did not waive their objections to the trial court’s dismissal of count III and portions of count I in the original complaint, I must reach the merits of those objections. For the reasons stated in the appellate court’s opinion (105 Ill. App. 3d 951), I would affirm the trial court’s dismissal of the breach-of-fiduciary-duties claim contained in count III. However, the trial court erroneously dismissed the warranty-of-habitability claim by subsequent purchasers in count I. Under our decision in Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 183-85, the subsequent purchasers were entitled to bring this claim. Therefore, I would reverse the judgments of the trial court and the appellate court on this count and remand for trial.