Price v. Hickory Point Bank & Trust

NO. 4-05-0532

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

MIKALA PRICE and MIKAL PRICE, ) Appeal from
Minors, by DAVID MASSEY, Guardian ) Circuit Court of
of the Estates of the Minors, ) Macon County
Plaintiffs-Appellants, ) No. 04L29
v. )
HICKORY POINT BANK & TRUST, Trust )
No. 0192; MACON COUNTY TITLE, LLC; )
ANDREW CHILIGIRIS; and REAL ESTATE ) Honorable
MANAGERS, LLC, ) Thomas E. Little,
Defendants-Appellees. ) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In November 2004, plaintiff David Massey, as guardian

of the estate of plaintiffs, Mikala and Mikal Price (twins, born

in April 2000), filed a second-amended negligence complaint

against defendants, Hickory Point Bank & Trust, Trust No. 0192;

Macon County Title, LLC; Andrew Chiligiris; and Real Estate

Managers, LLC. Specifically, plaintiffs alleged that while Mikala

and Mikal were tenants in one of defendants' properties, they

were poisoned by exposure to lead-based paint. (Hickory Point

Bank & Trust, Trust No. 0192, was dismissed as a party early in

the proceedings.) Plaintiffs based their claim, in part, on

defendants' alleged violation of the Decatur Municipal Code and

certain regulations of the federal Environmental Protection

Agency that implement provisions of the federal Residential Lead-

Based Paint Hazard Reduction Act of 1992 (42 U.S.C. '4851

(2000)).

In December 2004 and February 2005, plaintiffs filed
motions for partial summary judgment, through which they sought

findings on purportedly uncontested matters. In April 2005,

defendants filed a motion for summary judgment. In June 2005,

the trial court granted summary judgment in defendants' favor,

upon finding that (1) defendants had no knowledge that the

premises contained lead-based paint prior to learning of the

children's injuries, and (2) defendants did not knowingly violate

the regulations of the federal EPA.

Plaintiffs appeal, arguing that (1) the trial court
erred by granting defendants' motion for summary judgment because

(a) a violation of law constitutes prima facie evidence of

negligence; and (b) the court improperly relied on an unpublished

Illinois Appellate Court decision; and (2) the court erred by

denying plaintiffs' partial-summary-judgment motions. We reverse

the court's grant of defendants' summary-judgment motion and

remand for further proceedings.

I. BACKGROUND

According to plaintiffs= second-amended complaint, in

July 2000, Mikal and Mikala's parents, Jenny and Michael Price,

entered into a lease with Chiligiris for a house at 2075 E.

William Street in Decatur and moved in. In November 2001, the

children's physician detected elevated levels of lead in their

blood. The physician notified the Macon County health department

and on December 6, 2001, the department conducted an investiga-

tion at the William Street residence. In January 2002, the

department issued a notice of its findings to the trust officer

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at Hickory Point Bank and Trust and sent a copy to Chiligiris.

Findings included that lead hazards were present on certain

windows, baseboards, and doorjambs. The department gave defen-

dants until February 9, 2002, to mitigate the lead hazards at the

residence.

Plaintiffs' second-amended complaint also alleged that

(1) defendants knew or should have known, based on Chiligiris's

years of experience with sale, management, renovation, repair,

and rental of residential real estate, of the hazard to children
posed by lead-based paint; (2) defendants knew that children

would be residing at the William Street residence when the Price

family entered the lease; and (3) prior to purchasing the resi-

dence, Chiligiris was notified of the dangers of lead-based paint

and of the recommendation to conduct a risk assessment or inspec-

tion for lead-based paint prior to purchase or rental of the

property.
The second-amended complaint further alleged that

defendants were negligent for (1) leasing the William Street

residence to the Price family with lead-based paint present in

the interior and exterior in violation of Decatur's Municipal

Code, which adopted the Building Officials and Code Administra-

tors' (BOCA) National Property Maintenance Code, 1993 edition

(specifically, sections 106.1, 303.4, and 305.4 of the BOCA

Code); (2) failing to notify the Price family of the presence of

lead-based paint at the residence; (3) failing to inspect the

residence for the presence of lead-based paint before renting it

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to the Price family; and (4) failing to disclose to the Price

family information about protection against lead-based paint, in

violation of federal law--namely, the Residential Lead-Based

Paint Hazard Reduction Act of 1992 (42 U.S.C. '4852(d) (2000))

and the federal Environmental Protection Act (EPA) regulations

implementing the Residential Lead-Based Paint Hazard Reduction

Act (40 C.F.R. '745.100-119 (2000)).

In December 2004, plaintiffs filed their first motion

for partial summary judgment. Plaintiffs sought a finding by the

trial court that defendants failed to warn the Price family about

the risks and dangers of lead-based paint in the William Street

residence. In February 2005, plaintiffs filed another motion for

partial summary judgment. In that motion, plaintiffs' sought a

finding that defendants had a duty to warn the Price family about

lead-based paint hazards when they entered the lease.

Following an April 2005 hearing, the trial court entered a docket

entry order in which it made the following findings:

"1. There is no evidence presently

before the court that the [d]efendants had

actual or constructive knowledge, prior to

the inception of the lease, that the leased

premises contained lead-based paint.

2. The affidavits of Jenny and Michael

Price suggest that they never received a

[l]ead-[p]aint [d]isclosure [f]orm from de-

fendants prior to the inception of the lease.

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 3. The federal statute and the federal

regulations suggest that a [l]essor shall

disclose to the [l]essee the presence of any

KNOWN lead-based paint and/or lead-based

paint hazards.

4. There remain genuine issues of mate-

rial fact."

The court denied both of plaintiffs= motions for partial summary

judgment.

Later in April 2005, defendants filed a motion for

summary judgment, asserting that they were entitled to judgment

as a matter of law, in pertinent part, because (1) plaintiffs

neither alleged facts nor developed any evidence that defendants

had actual or constructive notice of lead-based paint at the

William Street residence, and without such notice, defendants

could not be held liable; and (2) plaintiffs neither alleged

facts nor submitted any evidence to show that defendants know-

ingly violated the Residential Lead-Based Paint Hazard Reduction

Act, and absent evidence of a knowing violation, defendants had

no liability; and (3) defendants had no knowledge of the presence

of lead-based paint prior to receiving the mitigation notice

letter from the health department.

In May 2005, plaintiffs filed their third-amended

complaint, which was amended only to correct citations to the

Decatur Municipal Code.

In June 2005, following a hearing on defendants'

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summary-judgment motion, the trial court entered a written order

granting defendants' motion for summary judgment. Specifically,

the court (1) found that under Garcia v. Jiminez, 184 Ill. App.

3d 107, 539 N.E.2d 1356 (1989), a landlord cannot be held liable

for lead-based paint contamination unless he had actual or

constructive knowledge that the premises contained lead-based

paint; and (2) stated, in pertinent part, that "[t]he facts

presently before the court demonstrate that [d]efendants had no

knowledge that the premises contained lead-based paint until

receiving notice from the Macon County Health Department for the

inspection occurring on December 6, 2002." The court further

found that violation of a statute does not constitute per se
negligence and the municipal ordinance required that a violation

notice be given to a landlord and a reasonable time be allowed

for mitigation. Finally, the court determined that under federal

law, defendants must "knowingly" violate the Residential Lead-

Based Paint Hazard Reduction Act before liability may attach.

This appeal followed.

II. ANALYSIS

A. Standard of Review

In Kleiss v. Bozdech, 349 Ill. App. 3d 336, 349, 811
N.E.2d 330, 340 (2004), this court discussed the standard of

review for summary-judgment rulings and wrote as follows:

"'The purpose of a summary[-]judgment

proceeding is not to try an issue of fact,

but to determine whether any genuine issue of

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 material fact exists.= Happel v. Wal-Mart

Stores, Inc., 199 Ill. 2d 179, 186, 766

N.E.2d 1118, 1123 (2002). Summary judgment

is a "'drastic means of disposing of litiga-

tion'" (Happel, 199 Ill. 2d at 186, 766

N.E.2d at 1123, quoting Espinoza v. Elgin,

Joliet & Eastern Ry. Co., 165 Ill. 2d 107,

113, 649 N.E.2d 1323, 1326 (1995)) and thus

is only appropriate when the pleadings, depo-

sitions, and admissions, together with any

affidavits, show that there is no genuine

issue of material fact and that the movant is

entitled to judgment as a matter of law

(Happel, 199 Ill. 2d at 186, 766 N.E.2d at

1123; 735 ILCS 5/2-1005(c) (West 1998)). We

review de novo a trial court=s grant of sum-

mary judgment, and in so doing, we construe
facts strictly against the moving party and

in a light most favorable to the nonmovant.

Happel, 199 Ill. 2d at 185-86, 766 N.E.2d at

1123."

B. Common-Law Negligence Based on a Violation of a Statute

1. Whether Plaintiffs Were Required To Show
Defendants' Knowledge

Plaintiffs first argue that the trial court erred by

granting defendants' summary-judgment motion because plaintiffs=

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showing that defendants violated provisions of the Decatur

Municipal Code and the EPA constituted prima facie evidence of

negligence, such that their case should have gone to the jury.

Defendants respond that summary judgment was properly granted

because plaintiffs produced no evidence that defendants (1) knew

of the lead-based paint at the William Street residence or (2)

knowingly violated the EPA.

Initially, we note that plaintiffs state a common-law

negligence claim based on a violation of a statute or ordinance.

The essential elements of common-law negligence are (1) the

existence of a duty owed by the defendant to the plaintiff, (2)

breach of that duty, and (3) an injury caused by that breach.

Clifford v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34,

40, 817 N.E.2d 1207, 1212 (2004). However, when a plaintiff=s

negligence claim--as in this case--is based on a violation of a

statute or ordinance, different elements must be shown. A

violation of a statute or ordinance designed to protect human

life is prima facie evidence of negligence. Kalata v. Anheuser-
Busch Cos., 144 Ill. 2d 425, 434, 581 N.E.2d 656, 661 (1991);

Magna Trust Co. v. Illinois Central R.R. Co., 313 Ill. App. 3d

375, 383, 728 N.E.2d 797, 804 (2000). To prevail on a claim of

negligence based on a violation of a statute or an ordinance

designed to protect human life, the plaintiff must show that (1)

the plaintiff is a member of the class of persons the statute or

ordinance was designed to protect, (2) the injury is the type of

injury that the ordinance was intended to protect against, and

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(3) the defendant=s violation of the statute or ordinance was the

proximate cause of the plaintiff=s injury. Kalata, 144 Ill. 2d

at 434-35, 581 N.E.2d at 661. Because evidence of the violation

of a statute is prima facie evidence of negligence, and not

negligence per se, a defendant can prevail despite an ordinance

violation by showing that he acted reasonably under the circum-

stances. Kalata, 144 Ill. 2d at 435, 581 N.E.2d at 661; McCarthy

v. Kunicki, 355 Ill. App. 3d 957, 973, 823 N.E.2d 1088, 1102

(2005). A "plaintiff is not required to show defendants' aware-

ness of the [statutory] violation since the violation itself is

prima facie evidence of negligence." McCarthy, 355 Ill. App. 3d

at 974, 823 N.E.2d at 1102.

Statutes and ordinances designed to protect human life

establish the standard of conduct required of a reasonable person

and thus "fix the measure of legal duty." Noyola v. Board of

Education of the City of Chicago, 179 Ill. 2d 121, 130, 688

N.E.2d 81, 84-85 (1997). Accordingly, once a violation of

statute is shown, there is no question of duty and the focus
turns, as stated above, to whether (1) the plaintiff is a member

of the class of persons protected by the statute, (2) the plain-

tiff=s injury is the type the statute intended to protect

against, and (3) the defendant's violation of the statute proxi-

mately caused the injury. Kalata, 144 Ill. 2d at 434-35, 581
N.E.2d at 661. Thus, in this case--decided at the summary-

judgment phase--all of the discussion in the trial court on

defendants' knowledge of the alleged statutory violations was

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irrelevant. See McCarthy, 355 Ill. App. 3d at 974, 823 N.E.2d at

1102 ("plaintiff is not required to show defendants' awareness of

the violation since the violation itself is prima facie evidence

of negligence. [The defendants'] knowledge of the violation,

therefore, is irrelevant as to whether defendants were negli-

gent"). Accordingly, we conclude that the trial court erred by

granting defendants' summary-judgment motion based on plaintiffs'

failure to produce evidence of defendants' knowledge regarding

their violations of the Decatur Municipal Code and the EPA. In

fact, plaintiffs produced the only evidence of duty that the law

requires--namely, defendants' violation of the municipal ordi-

nance and federal EPA.

In so concluding, we decline to follow the Second

District Appellate Court's decision in Garcia, 184 Ill. App. 3d
107, 539 N.E.2d 1356, relied on by defendants. In that case, the

plaintiffs' lead-based paint exposure complaint alleged, in

pertinent part, (1) negligence and (2) negligence arising from

violation of a city ordinance. A jury found in favor of the

defendant on both negligence counts. Garcia, 184 Ill. App. 3d at
109, 539 N.E.2d at 1357. On appeal, the plaintiffs argued that

the defendant should not have been permitted to present evidence

or argument that he did not know or have reason to know that the

subject property contained lead-based paint. Garcia, 184 Ill.

App. 3d at 109, 539 N.E.2d at 1357. Without discussing the law

of negligence based on a violation of statute, the Second Dis-

trict Appellate Court held that the plaintiffs could not recover

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without showing that the landlord had actual or constructive

knowledge that the peeling paint inside the tenants= residence

contained lead-based paint. In so holding, the Garcia court

stated that to forego a knowledge requirement would impose a form

of "strict liability on landowners whose property contains lead-

based paint." Garcia, 184 Ill. App. 3d at 111-12, 539 N.E.2d at

1359. We disagree. As previously discussed, recognizing that

the violation of a statute constitutes prima facie evidence of

negligence does not amount to imposing strict liability. Rather,

it relieves the plaintiff of having to show a duty and, instead,

requires him to show that (1) the statute was intended to protect

the plaintiff from the type of injury he suffered and (2) the

violation caused that injury.

We further note that Garcia is distinguishable in that

it addressed an evidentiary ruling of the trial court, rather

than a ruling on summary judgment. Regardless of everything else

the Second District said in Garcia, the essence of its holding is

that the jury should have been allowed to hear evidence related

to the defendant's knowledge of a dangerous condition. Our

holding here, that knowledge is not essential for a prima facie

case of negligence based on a violation of statute to survive

summary judgment, does not directly conflict with the

Garcia court's holding. Indeed, in this case, defendants'

knowledge--either of the presence of lead-based paint or their

obligations under the municipal code and EPA--may be relevant to

the fact finder's determination of whether defendants acted

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reasonably under the circumstances. See Kalata, 144 Ill. 2d at

435, 581 N.E.2d at 661 (a defendant may prevail despite a viola-

tion of statute by showing that he acted reasonably).

Defendants also rely on Abassi v. Paraskevoulakos, 187

Ill. 2d 386, 718 N.E.2d 181 (1999), asserting that it "reaf-

firmed" Garcia. We disagree with defendants' interpretation of

Abassi.

In that case, our supreme court held that the plain-

tiffs did not have a private cause of action under the Lead

Poisoning Prevention Act (410 ILCS 45/1 through 17 (West 1996))

or Chicago's city code. Instead, the court held that plaintiff

had an adequate remedy through a common-law negligence claim.

Abassi, 187 Ill. 2d at 396, 718 N.E.2d at 186. In so holding,

the court noted that in a common-law negligence action, violation

of statute is prima facie evidence of negligence and not negli-

gence per se. Abassi, 187 Ill. 2d at 395, 718 N.E.2d at 186.

However, the court did not analyze the plaintiff's negligence

claim based on a violation of a statute or discuss the elements

of that claim in any detail because that claim remained pending

in the trial court. Moreover, although the Abassi court cited
Garcia in its recitation of the plaintiff's negligence complaint

(Abassi, 187 Ill. 2d at 389, 718 N.E.2d at 183), the court did

not rely on Garcia in its analysis or in any way "reaffirm" that

decision.

2. Whether Plaintiffs Showed That Defendants Violated
the Decatur Municipal Code and the Federal EPA

In reversing the trial court's order granting summary

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judgment for defendants, we reject defendants' argument that

plaintiffs failed to show that a violation of the Decatur Munici-

pal Code and the federal EPA occurred because defendants were not

aware of (1) the presence of lead-based paint at the William

Street residence prior to Mikal and Mikala's injuries, or (2)

their obligations under the EPA.

a. The Decatur Municipal Code

Chapter 70 of the Decatur Municipal Code (entitled

"Property Maintenance Code") adopts and incorporates therein the
BOCA National Property Maintenance Code, 1993 edition. In their

second-amended complaint, plaintiffs alleged that defendants

violated section 305.4 of the BOCA Code. That section provides

as follows:

"Interior and exterior painted surfaces

of dwellings and child and day care facili-

ties, including fences and outbuildings,
which contain in excess of 0.06 percent lead

by weight shall be removed or covered in an

approved manner. Any surface covered shall

first be marked with warnings as to the lead

content of the surface." BOCA National Prop-

erty Maintenance Code '305.4 (1993).

Plaintiffs also cited section 106.1 of the BOCA Code, which

provides, in pertinent part, as follows:

"Unlawful acts: It shall be unlawful for any

person, firm[,] or corporation to *** let to

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 another or occupy or permit another person to

occupy any structure or equipment regulated

by this code, or cause same to be done, con-

trary to or in conflict with or in violation

of any of the provisions of this code ***."

BOCA National Property Maintenance Code

'106.1 (1993).

The trial court determined that defendants' violation

of the Property Maintenance Code did not constitute negligence

because that ordinance required written notice to the landlord

containing (1) a description of the real estate, (2) the reason

for the notice, and (3) a correction order allowing a reasonable

time for corrections to be made. Although the court provided no

citation to the BOCA Code for these requirements, they were cited

in defendants' summary-judgment motion as part of section 106.2

of the BOCA Code. However, chapter 70 of Decatur's Municipal

Code, which incorporates the BOCA Code into the Decatur Property

Maintenance Code, expressly deleted a number of sections of the

BOCA Code, including section 106.2. Decatur Municipal Code ch.

70, par. 6 (2000). Thus, the court's reliance on this section of

the BOCA Code was erroneous, as it is not a part of Decatur=s

Property Maintenance Code.

Pursuant to the language of sections 305.4 and 106.1 of

the BOCA Code and in light of the fact that it is uncontroverted

that the health department found lead hazards at the William

Street residence, we conclude that plaintiffs showed that defen-

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dants were in violation of the Decatur Municipal Code when Mikal

and Mikala's injuries occurred.

b. The Federal Law

Plaintiffs alleged that defendants violated provisions

of the Residential Lead-Based Paint Hazard Reduction Act (42

U.S.C. ''4851 through 4856 (2000)) and the EPA. Specifically,

plaintiffs alleged violations of (1) section 745.113 of the EPA

(40 C.F.R. '745.113 (2000)), which provides that a lessor must

provide a lessee with a lead warning statement providing that

housing built before 1978 may contain lead-based paint; and (2)

section 745.107 of the EPA (40 C.F.R. '745.107 (2000)), which

provides that lessors must provide lessees with a lead hazard

information pamphlet approved by the Environmental Protection

Agency. Defendants acknowledged below that they did not comply

with these EPA provisions.

Nevertheless, defendants contend (and the trial court

determined) that a violation of the EPA did not occur because

defendants did not "knowingly" violate its provisions. For

support, defendants cite the penalties section of the EPA (see 42

U.S.C. '4852d(b)(3) (2000) ("Any person who knowingly violates

the provisions of this section shall be jointly and severally

liable to the purchaser or lessee in an amount equal to 3 times

the amount of damages incurred by such individual"). However,

section 745.118 of the EPA (40 C.F.R. '745.118 (2000)) provides

as follows:

"Failure or refusal to comply with '745.107

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 (disclosure requirements for sellers and

lessors), '745.110 (opportunity to conduct an

evaluation), '745.113 (certification and

acknowledgment of disclosure), or '745.115

(agent responsibilities) is a violation of 42

U.S.C. [']4852d(b)(5) and of TSCA [(Toxic

Substance Control Act)] section 409 (15

U.S.C. [']2689)."

We thus conclude that plaintiffs have shown that defendants

violated the EPA by failing to comply with sections 745.113 and

745.107.

In light of our conclusions that (1) plaintiffs were

not required to show defendants' knowledge of either the presence

of lead-based paint or the requirements of the EPA in order to

sustain their negligence claim based on a violation of a statute,

and (2) plaintiffs made sufficient showings that defendants

violated the Decatur Municipal Code and the EPA, we further

conclude that the plaintiffs established a prima facie case of

negligence. We thus reverse the trial court's grant of summary

judgment in favor of defendants.

B. The Trial Court's Decision Allowing Defendants' Counsel
To Cite an Unpublished Illinois Appellate Court Order

Plaintiffs next argue that the trial court erred by

permitting defendants' counsel to cite an unpublished order of

the Illinois Appellate Court. We agree.

At the May 2005 hearing on defendants' summary judgment

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motion, defendants' counsel tendered to the trial court an

unpublished order of this court. In so doing, counsel stated as

follows:

"[T]here's no question that that order has--

is not binding on this [c]ourt. The [c]ourt

cannot rely upon it in terms of making any

ruling or decision, but I am tendering the

Rule 23 order simply for the [c]ourt to see

that at least as of 2002 that the Garcia

[decision] was still the standard by which

the courts were judging liability on lead-

based contamination cases. It isn't any more

than I would suggest than what a treatise

would be or an article from a publication

because--but I think it is pertinent insofar

as that is concerned."

When plaintiffs' counsel later presented his argument,

he asked that the trial court decline to consider the Rule 23

order cited by defendants' counsel because "it cannot be cited as

precedent." The trial court responded as follows:

"Why should I not consider that when you've

asked me to consider the treatise that you

cited without naming the treatise you put up

here on the overhead, that here's a learned

treatise that I should consider in ruling on

this motion? Why--I would think that your

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 Rule 23 would be equally persuasive at least

in terms of the treatise. Am I mistaken?"

In our view, Supreme Court Rule 23 prohibits the

actions of defendants' counsel at the summary-judgment hearing.

Subsection (e) of Rule 23 provides as follows: "An unpublished

order of the court is not precedential and may not be cited by

any party except to support contentions of double jeopardy, res

judicata, collateral estoppel or law of the case." 166 Ill. 2d

R. 23(e). Nothing is ambiguous about the foregoing language, and

the transcript of proceeding shows that defendants' counsel

tendered the unpublished order for an improper purpose.

In so concluding, we reject defendants' contention that

Osman v. Ford Motor Co., 359 Ill. App. 3d 367, 833 N.E.2d 1011
(2005), renders his conduct permissible. In that case, this

court (1) relied on an unpublished opinion of the federal Fourth

Circuit Court of Appeals, and (2) in dicta, stated that under

Supreme Court Rule 23, parties are not barred from "using the

reasoning and logic" contained in a Rule 23 order. Osman, 359

Ill. App. 3d at 374, 833 N.E.2d at 1016-17. However, as we noted

in Osman, the Fourth Circuit rules allow for citation of its
unpublished orders under certain conditions. Osman, 359 Ill.

App. 3d at 374, 833 N.E.2d at 1016. Moreover, defendants'

counsel in this case did not argue the reasoning and logic of the

Rule 23 order he tendered to the court; instead, he brought that

case to the court's attention to imply that it had precedential

value--a clear violation of Rule 23(e).

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 Accordingly, we conclude that counsel erred by citing

an unpublished Rule 23 order and the trial court erred by permit-

ting him to do so over plaintiffs' objection. We are confident

that this error will not be repeated either by counsel or the

court, and under the circumstances of this case, we do not find

it necessary to address the issue further.

C. The Trial Court's Denial of Plaintiffs'
Motions For Partial Summary Judgment

Last, plaintiffs argue that the trial court erred by
denying their motions for partial summary judgment. We decline

to address this argument.

Ordinarily, a trial court's denial of a summary judg-

ment motion is not appealable. Arangold Corp. v. Zehnder, 187

Ill. 2d 341, 357, 718 N.E.2d 191, 200 (1999). We recognize that

in certain circumstances, we may review the denial of a summary-

judgment motion; for instance, when the trial court has ruled on

opposing motions for summary judgment on the same claim.

Arangold, 187 Ill. 2d at 358, 718 N.E.2d at 201.

In our view, reviewing the trial court's rulings on

plaintiffs' partial-summary-judgment motions would serve little

purpose in light of (1) our reversal of the court's grant of

summary judgment in favor of defendants and (2) the extensive

direction our foregoing analysis provides to the parties and the

court. Accordingly, we decline to address plaintiffs' argument

that the trial court erred by denying their partial-summary-

judgment motions.

III. CONCLUSION

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 For the reasons stated, we reverse the trial court's

judgment and remand for further proceedings consistent with the

views expressed herein.

Reversed and remanded.

TURNER, P.J., and KNECHT, J., concur.

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