dissenting:
I respectfully dissent. Supreme Court Rule 308 is an exception to the general rule that only final orders are subject to appellate review. Rule 308 allows permissive interlocutory appeals and is to be used sparingly. Morrissey v. City of Chicago, 334 Ill. App. 3d 251, 257 (2002). Thus, appeals under Rule 308 must be limited t§ exceptional cases, wherein the trial court:
“[F]inds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved.” 155 Ill. 2d R. 308(a).
The rule should be strictly construed and sparingly exercised. Voss v. Lincoln Mall Management Co., 166 Ill. App. 3d 442, 445 (1988).
The briefs, the record, and the majority disposition reveal that the interlocutory order does not involve a question of law as to which there is a substantial ground for difference of opinion or that an immediate appeal from the order may materially advance the ultimate termination of the litigation. Rather, questions of fact frame the issues. The briefs, the record, and the majority disposition are replete with references to facts peculiar and specific to this case as the basis for obtaining answers that coincidentally would result, if defendants prevail, in the reversal of the partial summary judgment previously granted by the trial court, which is surreptitiously being appealed under the guise of a Rule 308 appeal.
Defendants essentially concede that an “as is” clause is typically not a defense to fraud claims. But defendants claim that this case is an exception to the typical case; that “the particular facts of this case” would allow such to be a viable defense. The problem is that, by addressing this issue in a Rule 308 appeal, we should be deciding whether public policy allows any “as is” clause to be used as a defense, not simply whether the peculiar facts in this case should be reviewed in such manner as to reverse the partial summary judgment granted in this case. Defendants are not asking this court to decide a question of law. They are not asking this court to determine whether a disclaimer or an “as is” clause is per se unenforceable. Rather, defendants are asking this court to decide a mixed question of law and fact. In defendants’ brief, they ask this court to determine “[wjhether, given the facts of the case, there is a difference in the legal effect of paragraph A-2 of the Real Estate Contract Ride[rj.” Similarly, defendants’ prayer for relief asks this court to consider the facts of this case in making its determinations regarding the certified questions. They are not referring to sundry incidental facts that underlie all questions of law. Rather, they are requesting that we review virtually the entire record, including discovery.
Regarding the second certified question, there is not a substantial ground for a difference of opinion. The law is well settled that a contractual clause cannot be used to avoid fraud liability in a residential real property transaction. See Zimmerman v. Northfield Real Estate, Inc., 156 Ill. App. 3d 154 (1986).
Furthermore, I submit that this appeal will not materially advance the termination of this litigation when it merely relates to one aspect of an affirmative defense. I submit that this is a thinly veiled attempt at a review of the grant of partial summary judgment upon a count alleging an affirmative defense. This is allegedly only a question of law because defendants are claiming that there are no material issues of fact and that the only matter that remains is the question of law to be decided on the undisputed facts. If this were a proper basis for review under Rule 308, I believe there would be precedent to cite to for support. Ironically, considering the questions certified and answered and the request to reverse the summary judgment, it is difficult to see how this is a question of law upon which reasonable minds could differ. If it were, then summary judgment should not have been granted, because it is based upon the premise that there are no material issues of fact upon which reasonable minds could differ as to the mixed questions of law and facts involved. How can there be a substantial ground for difference of opinion if summary judgment is a drastic measure that should be allowed only when the right of the moving party to judgment is free and clear from doubt? If there is a substantial ground for difference of opinion, why is the majority effectively affirming the summary judgment? See Olson v. Etheridge, 177 Ill. 2d 396, 404 (1997), citing Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Simply put, this is a paradox.
In Dowd & Dowd, Ltd. v. Gleason, 284 Ill. App. 3d 915, 920 (1996), the trial court certified a question pursuant to Supreme Court Rule 308(a) as to whether the plaintiff stated a cause of action against the defendants. The appellate court answered the certified question and was reversed by our supreme court, which accepted the appeal but declined to answer the certified question even though the appellate court stated, “We first address the question of law certified by the trial court pursuant to Supreme Court Rule 308(a) (134 Ill. 2d R. 308(a)) because it is a foundation for disposing of other issues presented in the case.” Dowd & Dowd, 284 Ill. App. 3d at 925. Despite the fact that the appellate court found it foundational in its analysis addressing summary judgments on multiple counts, our supreme court stated as follows:
“Although the matter is framed as a question of law, we believe that any answer here would be advisory and provisional, for the ultimate disposition *** will depend on the resolution of a host of factual predicates. For proof that factual issues remain, we need look no further than the trial judge’s ruling on the defendants’ motion for summary judgment on this count: in denying the motion, the trial judge stated that issues of material fact remained, which precluded entry of summary judgment.” Dowd & Dowd, 181 Ill. 2d at 469.
Although the majority here is effectively affirming the partial summary judgment, I believe that the same principle stated above applies to the certified questions in this case. The certified questions necessarily involve factual considerations and can be answered by the majority only via referencing and incorporating the myriad factual predicates (uncontroverted facts). The certified questions are so dependent on the plethora of facts specific to this case that the majority disposition constitutes an advisory opinion, because it is sui generis, and a provisional opinion, because of the remaining unresolved counts, issues, and facts to be determined at trial.
Last and least, the third certified question concerns “ ‘[wjhether Paragraph A-2 is admissible evidence on the issues of fraudulent intent and reliance.’ ” 359 Ill. App. 3d at 901. The majority then proceeds to enlarge the breadth of this certified question to cover all possible scenarios. “Moreover, we conclude that the final sentence of paragraph A-2 of the rider, wherein plaintiff accepts the property in ‘as is’ condition without any warranty or representation, should not be admitted for any purpose.” 359 Ill. App. 3d at 908. In response to alternative arguments relating to other bases for admissibility, the majority wisely exercises restraint in the penultimate page of the opinion, stating, “Any answer to these questions would be premature because, although we have reviewed the limited discovery materials included in the record, we do not know what the evidence at trial will be. These are questions that we cannot answer as a matter of law and are better left to the trial court’s discretion as the trial unfolds.” 359 Ill. App. 3d at 909-10. “The admissibility of evidence is a matter within the sound discretion of the trial judge, whose decision will not be reversed absent a clear abuse of discretion.” Cress v. Recreation Services, Inc., 341 Ill. App. 3d 149, 179 (2003). I submit that it is presumptuous of this court to anticipate the admissibility of any evidence prior to trial.
Rather than exercise restraint as our supreme court did in Dowd, the majority has determined, through an interlocutory appeal prior to trial, that the exclusion of evidence would not be an abuse of discretion. Considering the latitude that this majority has given itself to exercise functions and prerogatives of the trial court, it is reasonable to conclude that the restraint exhibited in Dowd is vitiated and that this court has jurisdiction to try a case so long as the trial court is willing to certify it to the appellate court for adjudication on the merits.
Although well-intentioned, the majority opinion adds nothing to the present body of law, does not answer a question of law for which there is substantial ground for difference of opinion, does not materially advance the termination of the litigation, and constitutes a provisional and advisory opinion on the question of whether the partial summary judgment was providently granted. This court should exercise the same discretion and restraint that our supreme court exhibited in Dowd & Dowd and refuse to answer the questions certified by the trial court. I therefore refuse to either agree or disagree in the answers and the analysis of the majority disposition.