FIRST DIVISION
December 5, 2005
No. 1-04-2411
ANTONIO VILLALOBOS, as Next Friend and ) Appeal from the
Father of Hilda Villalobos, a Minor, ) Circuit Court of
) Cook County, Illinois.
Plaintiff-Appellant, )
)
v. ) No. 01 L 4963
)
CICERO SCHOOL DISTRICT 99 and )
GLORIA KNOWLES, ) Honorable
) David G. Lichtenstein,
Defendants-Appellees. ) Judge Presiding.
)
JUSTICE GORDON delivered the opinion of the court:
On April 7, 2001, Antonio Villalobos (Antonio), individually and as next friend and fatherof Hilda Villalobos (Hilda), filed a complaint against defendants Cicero School District 99 (CiceroSchool District) and Gloria Knowles, to recover damages for injuries sustained in an automobilecollision. Antonio's claims were dismissed because they were brought after the statute oflimitations had run and are not part of this appeal. Defendants moved for summary judgment asto Hilda's claims, alleging that Hilda's parents, Antonio and Maria, signed a document whichreleased them from liability. The circuit court granted defendants' motion and plaintiff appealed. For the reasons that follow, we reverse and remand.
I. BACKGROUND
On May 12, 1999, a collision occurred between a vehicle driven by Antonio and a schoolbus driven by Knowles and owned by Cicero School District. Hilda, who was 15 years old at thetime, was a passenger in Antonio's vehicle. She sustained lacerations to her head and face as wellas a fractured collarbone. Her lacerations required 20 staples and resulted in some scarring.
At the time of the accident, Antonio was insured by Allstate Insurance Company (Allstate)and the defendants were insured by Gallagher Basset. Antonio's Allstate insurance policycontained a family exclusion, which meant that any claim Hilda had against him would be coveredby his uninsured motorist coverage. The two companies agreed that Antonio and Knowles wereequally at fault for the accident, and Gallagher Basset therefore agreed to reimburse Allstate for50% of any medical payments advanced and 50% of the property damage claims. Initially afterthe accident, Allstate paid $4,304.10 in medical bills submitted by Hilda.
In June of 2000, Allstate adjuster Shirley Smith discovered that Hilda's claims had notbeen resolved. On August 2, 2000, Smith contacted Antonio and told him that Hilda was entitledto compensation for her injuries. Antonio informed Smith that since he and his family wereleaving for Mexico in a few days he wanted to resolve the matter as quickly as possible. Antonioand his wife Maria then described Hilda's scars to Smith over the phone. It does not appear thatHilda's collarbone fracture was discussed at that time. Smith informed Antonio that she would doher best to expedite the claim. After the phone conversation, Smith estimated Hilda's claim to beworth $3,000 to $5,000, and she submitted that figure to her superiors at Allstate forauthorization.
The next day, August 3, 2000, Smith called Antonio again and explained that withoutseeing Hilda's scars the evaluation might not be accurate. Antonio then informed Smith that Hildawas actually already in Mexico and would not be back until June of 2001. Smith then, apparentlyunaware of the tolling effect of Hilda's minority, incorrectly informed Antonio that the statute oflimitations would run on any claim Hilda might have against defendants before that date. Antoniostated that he was willing to take the risk of having an inaccurate and conservative valuation ofHilda's claim because he wanted the extra money for his daughter while she was in Mexico. Atthat time, Smith made an offer of $3,000, which Antonio accepted.
On August 4, 2000, Antonio and Maria met Smith at an Allstate facility. Smith tendered a$3,000 Allstate check to Antonio and Maria, and they signed two documents. The first documentapplied specifically to Allstate and stated as follows:
"RECEIPT AND RELEASE UNDER UNINSURED MOTORISTINSURANCE –COVERAGE SS SUBROGATION AGREEMENT
1. In consideration of the payment of One Thousand Five HundredDollars, ($1,500.00) paid by Allstate, the receipt of which is hereby acknowledged,the undersigned hereby forever releases and discharges Allstate from any and allliability and from any and all contractual obligations whatsoever under thecoverage designated above for Policy No. 062144358 issued to Antonio and MariaVillalobos as Parents and Guardians of Hilda Villalobos by Allstate, and arising outof bodily injuries sustained by Hilda Villalobos due to an accident on or about the12th day of May, 1999, at or near Cicero, il."
The second document applied to the defendants:
"PARENT'S RELEASE & INDEMNITY AGREEMENT
In consideration of the payment, to the undersigned, of the sum of OneThousand Five Hundred Dollars ($1500.00) The receipt of which is herebyacknowledged, the undersigned parent (s) and guardian (s) of Hilda Villalobos, aminor, does forever release, discharge and covenant to and to hold harmless,Gloria Knowles, Cicero Public Schools, Gallagher Bassett Services, Inc., and anyother person, firm or corporation charged or chargeable with responsibility orliability, their heirs, administrators, executors, successors and assigns, from anyand all claims, demands, damages, costs, expenses, loss of services, actions andcauses of action, belonging to the said minor or to the undersigned arising out ofany act or occurrence up to the present time, and particularly on account of allpersonal injury, disability, property damage, loss or damages of any kind sustainedor that may hereafter be sustained by the said minor or to the undersigned, inconsequence of an accident that occurred on or about the 12th of May, 1999 at ornear, Cicero, Il.
* * *
To procure the payment of the sum, I/WE hereby declare: that no representationsabout the nature of the extent of the said injuries, disabilities or damages made by anyphysician, attorney or agent of any party released, nor any representations regarding thenature and extent of legal liability or financial responsibility of any of the parties releasedhave induced ME/US to make this release and indemnity agreement."
Smith testified by way of deposition that at the August 4, 2000, meeting with Antonio andMaria, she explained the purpose and effect of the releases in detail. She stated that she explainedwhy there were two releases and why Allstate was having them sign a release for Gallagher Bassetand defendants. She further stated that she explained the "finality of signing" the releases and thatAntonio and Maria "seemed to have a firm understanding" of the documents.
Antonio testified in his deposition with regard to his meeting with Smith and the signing ofthe releases as follows:
"Q. Were you ever told whether the $3,000 was being paid to you under aprovision of your insurance policy or someone else's insurance policy?
A. She never told me – I was never told anything.
Q. Were you told by anyone at Allstate that this check was all you wouldbe able to receive, that by taking this check, you were finally releasing any and allclaims against the defendant, Gloria Knowles?
A. No, they never told me anything.
Q. Did the woman that you met with in the cafeteria ask you if youunderstood what you were signing?
A. No. She just gave me the copy to sign to prove that I was receiving thecheck.
Q. Is that what she told you, that by signing, you were just signing toshow you received the check?
A. Yes. She said the same thing to my wife, to bring in my wife so she would sign."
Antonio further stated that the meeting with Smith lasted approximately two minutes.
On April 27, 2001, Antonio, individually and on behalf of Hilda, filed a four-countcomplaint against defendants. Count I of the complaint was directed against Cicero SchoolDistrict and sought recovery for injuries to Antonio. Count II made the same allegations againstKnowles. Counts III and IV were brought on behalf of Hilda and were directed against CiceroSchool District and Knowles, respectively. On August 16, 2001, defendants filed their answer toplaintiffs' complaint. Defendants did not answer counts I and II as they had prepared a motion todismiss those claims because they were brought after the statute of limitations had run onAntonio's claims. As noted, the circuit court did, in fact, dismiss counts I and II on that basis. With regard to Hilda's claims in counts III and IV, defendants' answer simply denied anynegligence.
In February of 2002, defendants became aware of the releases signed by Hilda's parentswhen Antonio's attorney, as counterdefendant, sent them a copy of the "Parent's Release andIndemnity Agreement." Defendants thereafter, on July 31, 2002, filed their first of three motionsfor summary judgment on the theory that the release unambiguously resolved the case in theirfavor. Defendants noted in their motion that they were pursuing summary judgment on the basisof section 2-1005(b) of the Code of Civil Procedure (735 ILCS 5/2-1005(b) (West 2004)) ratherthan dismissal pursuant to section 2-619(a)(6) (735 ILCS 5/2-619(a)(6) (West 2004)) becausethey had already filed an answer to the complaint. Hilda responded to this motion by arguing thatthe release applied only to her parents and that it was ambiguous.
The circuit court heard the motion and found that the release was facially "suspect" in thatAntonio's own insurer made payment to him while purporting to release the defendants and theirinsurance company. The court then ordered the parties to investigate the circumstancessurrounding the negotiation and execution of the release in question. Subsequent to this order,the parties conducted discovery with a focus on the circumstances of the releases. Most relevantof this discovery were the depositions of Antonio and Smith, which, as noted, addressed thecircumstances behind Antonio's and Maria's signing of the releases.
On August 15, 2003, defendants filed their second motion for summary judgment. In thismotion, defendants again argued that the releases entitled them to judgment. However,defendants additionally argued that the circumstances surrounding the execution of the releasesunambiguously showed that Antonio and Maria understood what they were signing. Includedwith defendants' motion were court orders, a copy of the complaint, copies of the releases, thedeposition transcripts of Antonio, Maria, and Smith, as well as Allstate's response to plaintiff'smotion to compel.
In response to this motion, Hilda argued that the releases were improperly obtained andthat Antonio did not understand what he was signing. Hilda further posited that her contentionsraised questions of fact that precluded summary judgment. Included with her response were courtorders, deposition transcripts, copies of the releases, and copies of notes taken by Smith thatdocumented her contacts with Antonio.
On October 30, 2003, the judge to whom the case had been transferred denied defendants'motion without prejudice. The court's order did not explain the reasoning behind the denial of themotion. The transcript of the court proceedings from this day is not part of the record on appeal;however, both parties state in their briefs that judge explained in open court that he could notreach the merits of defendants' motion for summary judgment because defendants had not filed thenecessary underlying pleading by asserting the release as an affirmative defense.
On November 25, 2003, after obtaining leave of court, defendants filed their affirmativedefense, in which they asserted the release as a bar to Hilda's action. Hilda's reply to defendants'affirmative defense stated in relevant part:
"Although the Plaintiff, HILDA VILLALOBOS, a minor, admits that a'PARENTS RELEASE AND INDEMNIFICATION AGREEMENT' was signedby her parents, ANTONIO VILLALOBOS and MARIA VILLALOBOS, in thiscause, she denies that the subject 'Release' is of any legal effect as it was obtainedthrough the use of fraud and/or misrepresentation under suspect circumstances andled to an unconscionable result."
On December 3, 2003, defendants moved for summary judgment pursuant to section 2-1005(b) (735 ILCS 5/2-1005(b) (West 2004)) a third time. This third motion for summaryjudgment was essentially identical to the defendants' second motion for summary judgment andhad essentially the same documents attached, including deposition transcripts. As such, Hildaopted to stand on her response to the defendants' second motion.
On January 13, 2004, the circuit court issued a written order which granted defendants'motion and dismissed Hilda's case with prejudice. The order started by noting that the cause wasbeing brought on a "motion for summary judgment" and then stated that the court had"considered the motion and all pleadings, papers, depositions and exhibits proffered." At thatpoint, the following footnote was inserted:
"Respondent filed no response to the instant motion, but the court hasconsidered the previous response to the prior motion. The record is substantiallydifferent at this juncture than when the motion was first heard. There is now awell-pleaded defense to which nothing more than conclusionary averments havebeen filed by way of reply. In brief, respondent's approach is a plea to be allowedto argue to a lay jury not on the basis of articulated facts as to either 'fraud' or'unconscionability' but rather on the basis of sympathy, conjecture and speculation. This, for sound reasons of 'due process' the law does not allow."
The court then stated:
"Movants seeks [sic] summary disposition of the cause on the basis of awell pleaded affirmative defense (735 ILCS 5/2-619(a)(6)) of release. Respondentplaintiff admits the existence of the release agreement, but in an ineffectivelypleaded reply (called Plaintiff's Answer to Defendants' Affirmative Defense),asserts in wholly conclusionary terms that i.) 'It was obtained through the use offraud' and ii.) That it 'led to an unconscionable result.' On the current state of therecord the asserted defense is sufficient to warrant the summary dispositionsought, and there are no genuine issues of specific material fact (as opposed tomere argument) to present to a fact-finder, here a jury."
Soon thereafter, Hilda filed a motion to reconsider. The court heard oral arguments onApril 28, 2004, and denied the motion on July 21, 2004.
Hilda makes two basic arguments on appeal. First, she argues that the circuit court erredin granting the defendants' motion for summary judgment because there were genuine issues ofmaterial fact as to whether the releases were improperly obtained. In this regard, Hilda contendsthat there were factual questions as to whether Antonio understood the releases before signingthem, whether the haste with which the releases were obtained cast such suspicion on them thatsummary judgment would be inappropriate, and whether Smith's misrepresentation as to theapplicable statute of limitations induced Antonio to sign the releases. Second, Hilda argues thatthe circuit court erroneously considered defendants' summary judgment motion as one forinvoluntary dismissal. In this regard, Hilda contends that the circuit court erroneously lookedonly to the pleadings when the summary judgment statute directs the court to look additionally todepositions, admissions on file, and affidavits, if any, to determine whether a genuine issues ofmaterial fact exists.
Defendants, on the other hand, argue that the circuit court properly enforced the release asit was written. In this regard, they argue that there was no evidence of fraud in the execution orin the inducement, that there was no evidence of duress, and that the settlement amount was notunconscionable. Defendants next argue that the circuit court properly considered their motion asone for summary judgment despite the indications to the contrary. Defendants contend that anaffirmative defense is properly dispositive in a summary judgment motion. In the alternative,defendants argue that the circuit court would also have been correct in ruling for them on thebasis of section 2-619(a)(6) (735 ILCS 2-619(a)(6) (West 2004)), as an affirmative defense is alsoa proper basis for judgment under that statute. Defendants finally assert that regardless of the trialcourt's reason for its decision, we can affirm the result on any basis found in the record.
Oral arguments were heard before this court, at which time we raised the question ofwhether Hilda's minority affected the enforceability of the releases purportedly signed on herbehalf by her parents. We then allowed the parties to file supplemental briefs on this question. Inher supplemental brief, Hilda maintains that her parents had no legal right to settle her claimswithout court approval. Defendants concede that court approval was required for any settlementof Hilda's claims, but maintain that Hilda has since ratified the release by failing to disaffirm it. We find that the issues discussed in the foregoing supplemental briefs are dispositive of thisappeal.
II. ANALYSIS
Under Illinois law, a minor involved in litigation is a ward of the court and the court has "aduty and broad discretion to protect the minor's interests." Wreglesworth v. Arctco, Inc., 316 Ill.App. 3d 1023, 1026, 738 N.E.2d 964, 968 (2000); Mastroianni v. Curtis, 78 Ill. App. 3d 97, 100,397 N.E.2d 56, 58 (1979). Further, it is the public policy of this state that the rights of minors beguarded carefully. Mastroianni, 78 Ill. App. 3d at 100, 397 N.E.2d at 58; Ott v. Little Companyof Mary Hospital, 273 Ill. App. 3d 563, 570, 652 N.E.2d 1051, 1056 (1995). This policy isreflected in the statutory requirement that the court approve or reject any settlement agreementproposed on a minor's behalf. See 755 ILCS 5/19-8 (West 2004) ("By leave of court *** arepresentative may compound or compromise any claim or any interest of the ward *** or anyinterest in personal estate for other claims or personal estate upon such terms as the courtdirects"); Mastroianni, 78 Ill. App. 3d at 100, 397 N.E.2d at 58; Ott, 273 Ill. App. 3d at 571, 652N.E.2d at 1056; Smith v. Smith, 358 Ill. App. 3d 790, 792-93, 832 N.E.2d 960, 962 (2005). Inaccordance with this provision, Illinois courts have held that neither a next friend nor a court-appointed guardian can approve a settlement of a minor's claim without court approval. Ott, 273Ill. App. 3d at 571, 652 N.E.2d at 1057, citing Leonard C. Arnold, Ltd. v. Norther Trust Co., 139Ill. App. 3d 683, 487 N.E.2d 668 (1985); Kingsbury v. Buckner, 134 U.S. 650, 680, 33 L. Ed.1047, 1059, 10 S. Ct. 638, 648 (1890). "Similarly, a parent has no legal right, by virtue of theparental relationship, to settle a minor's cause of action; and court review and approval of asettlement reached be a parent also is mandatory." Ott, 273 Ill. App. 3d at 571, 652 N.E.2d at1057, citing Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Haley, 170 Ill. 610, 48 N.E.920 (1897), and Mastroianni, 78 Ill. App. 3d at 100, 397 N.E.2d at 58. Therefore, "anysettlement of a minor's claim is unenforceable unless and until there has been approval by theprobate court." Wreglesworth, 316 Ill. App. 3d at 1028, 738 N.E.2d at 969.
Defendants contend that although court approval was not obtained for the releases signedby Hilda's parents, she is nevertheless bound by the releases because she has failed to disaffirmthem. In support of this contention, defendants cite Dixon National Bank of Dixon v. Neal, 5 Ill.2d 328, 125 N.E.2d 463 (1955), and Shepherd v. Shepherd, 408 Ill. 364, 97 N.E.2d 273 (1951). Specifically, defendants rely on the general rules cited in these cases with regard to how a minorcan either disaffirm or ratify a contract once becoming an adult. See Dixon, 5 Ill. 2d at 336, 125N.E.2d at 467 ("A minor may disaffirm a contract made by him during minority within areasonable time after reaching his majority or, he may by acts recognizing the contract afterbecoming of legal age, ratify it. [Citation.] Similarly it is held that an executed contract voidableon the ground of infancy is deemed to be ratified by the failure of the former infant to disaffirm itwithin a reasonable time after reaching majority"); Shepherd, 408 Ill. at 375-78, 97 N.E.2d at279-80 ("A deed executed by a minor is not void but voidable, only, and becomes valid andeffective if ratified by him after he attains his majority. [Citations.] A minor may disaffirm acontract made by him during minority within a reasonable time after reaching his majority, or hemay, by acts recognizing the contract after becoming of legal age, ratify it. *** The right of aminor to disaffirm must be exercised within a reasonable time after reaching his majority").
Defendants further contend that the instant lawsuit, from which this appeal stems, cannotbe considered a disaffirmance of the releases by Hilda because the suit was brought by Antonio asher father and next friend, and not by Hilda individually. In support, defendants cite two caseswhere minors were found to have disaffirmed contracts by their actions. See Iverson v. Scholl,Inc., 136 Ill. App. 3d 962, 483 N.E.2d 893 (1985); Terrace Co. v. Calhoun, 37 Ill. App. 3d 757,347 N.E.2d 315 (1976). In Iverson, the court found that the plaintiff's "filing of suit [was]sufficient evidence of [her] desire to disaffirm" her discharge of debt owed by insurer made whenshe was a minor. Iverson, 136 Ill. App. 3d at 970, 483 N.E.2d at 899. Similarly, in Terrace, thecourt found that the defendant disaffirmed a note made while a minor when, at the age of 19, shefiled a motion to open the judgment. Terrace, 37 Ill. App. 3d at 761-62, 347 N.E.2d at 319.
We find defendants' arguments unpersuasive. First of all, the cases cited by defendants allinvolve contracts where the minors where parties to the original contract. See Dixon, 5 Ill. 2d at329-30, 125 N.E.2d at 464 (where minor was a party to a contract for adoption); Shepherd, 408Ill. at 375, 97 N.E.2d at 279 (where minor executed a deed); Iverson, 136 Ill. App. 3d at 970, 483N.E.2d at 899 (where minor, as a beneficiary of an insurance policy, discharged a debt); Terrace,37 Ill. App. 3d at 758, 347 N.E.2d at 317 (where minor signed a note). In contrast, here, Hildawas not a direct party to the release agreements; rather, it was her parents who purported to signthem on her behalf. Thus, Hilda is not in the same position as minors who were actualsignatories, like those involved in the cases cited by defendants.
Rather, the instant case is more analogous to the cases cited by Hilda. For instance, inSmith, a minor was injured while riding as a passenger in her mother's automobile. Smith, 358 Ill.App. 3d at 792, 832 N.E.2d at 962. The mother signed a release and trust agreement in theamount of $1,000, releasing and discharging her insurance company from all claims resulting fromthe accident. Smith, 358 Ill. App. 3d at 792, 832 N.E.2d at 962. Later, the father initiated a suitas next friend of the minor, alleging that the mother's negligence caused the minor's injuries. Thecourt found that the mother's settlement of her daughter's claims was unenforceable because itwas not approved by the probate court in accordance with Illinois law. Smith, 358 Ill. App. 3d at793, 832 N.E.2d at 962.
Similarly, in Mastroianni, the plaintiff filed suit upon attaining the age of majority torecover damages sustained in an automobile accident when she was 2 ½ years old. Mastroianni,78 Ill. App. 3d at 98-99, 397 N.E.2d at 57-58. Her parents had signed a release and indemnityagreement approximately two years after the accident and plaintiff contended that it wasineffective because it was never approved by the court. Mastroianni, 78 Ill. App. 3d at 99, 397N.E.2d at 58. The court held that court approval is necessary for the settlement of a minor'sclaims and remanded the case to resolve, among other things, whether such approval wasobtained for the release the parents signed. Mastroianni, 78 Ill. App. 3d at 100, 101-02, 397N.E.2d at 58-59.
Furthermore, although a minor who enters into a contract may disaffirm or ratify it uponreaching adulthood (Dixon, 5 Ill. 2d at 336, 125 N.E.2d at 467), defendants point us to no casewhere a minor was found to have ratified a contract executed by a parent on his behalf. We notethat the cases that have addressed the effect of a parent's execution of a release on behalf of aminor have stated that such releases are "unenforceable" (See Wreglesworth, 316 Ill. App. 3d at1028, 738 N.E.2d at 969 (using term "unenforceable"); Smith, 358 Ill. App. 3d at 793, 832N.E.2d at 963 (quoting Wreglesworth and using "unenforceable"); see also Mastroianni, 78 Ill.App. 3d at 99, 397 N.E.2d at 58 (noting that court approval is required before guardian's act isbinding)); these cases do not call such settlements "voidable" as is the case in contracts enteredinto directly by minors themselves (Shepherd, 408 Ill. at 375, 97 N.E.2d at 279; Terrace, 37 Ill.App. 3d at 761, 347 N.E.2d at 319). The term "unenforceable" connotes a finality more akin to"void" than to "voidable." Thus, we are inclined to think that disaffirmance and ratification do notplay the same role in cases, such as this, where the minor is not a party to the original contractbut, rather, is purportedly represented by his parents. However, even if we were to apply thesame rules of disaffirmance and ratification to these releases executed by Hilda's parents,defendants' contention still fails.
Hilda has clearly done no affirmative act that could be considered a ratification of thereleases. Consequently, defendants maintain that Hilda has ratified the releases simply by failingto affirmatively repudiate them. In this regard, defendants contend that the instant lawsuit,initiated by Antonio as Hilda's father and next friend, cannot act as a disaffirmance. However,although the cases cited by defendants make clear that a minor's own initiation of an action ormotion challenging a contract upon reaching majority can act as a disaffirmance (see Iverson, 136Ill. App. 3d at 970, 483 N.E.2d at 899; Terrace, 37 Ill. App. 3d at 761-62, 347 N.E.2d at 319),neither case supports defendants' proposition that a suit filed by a minor's father as next friendcannot similarly be considered a disaffirmance by the minor.
Hilda reached the age of majority less than a year after the suit was filed by her father, andshe was nearly 20 years old when the circuit court issued its order granting defendants motion forsummary judgment. Although Hilda did not bring or maintain the suit individually, the contractsthat defendants argue she has failed to disaffirm were already in the process of being challengedwhen she became an adult. Thus, it would not seem that any further act of disaffirmance by Hildawas necessary. Additionally, we note that a parent, as next friend of a child, has " 'power to claimand pursue the rights of the infant [but is] powerless to yield or cede it to others.' " Mastroianni,78 Ill. App. 3d at 100, 397 N.E.2d at 58, quoting Haley, 170 Ill. at 613-14, 48 N.E.2d at 922. Even though the issue of Hilda's minority was not formally raised until the case came before thiscourt, we believe the fact that the releases had been challenged on the bases raised below, namely,that Antonio did not understand them and that they were obtained through fraud and with unduehaste, would suffice to show disaffirmance. Moreover, in opposition to defendants' first motionfor summary judgment, Hilda argued that the releases did not apply to her because she did notsign them and they only bound Antonio and Maria as the "undersigned." Although theseassertions were originally made while Hilda was a minor, they persisted into the time of hermajority. Moreover, the rule is clear that a minor can disaffirm a contract before reaching the ageof majority. See Collins v. Peters Real Estate Improvement Corp., 252 Ill. App. 348, 349 (1929);Logan County Bank v. Taylor, 11 Ill. App. 3d 120, 121, 295 N.E.2d 743 (1973). Accordingly,defendants' arguments fail.
III. Conclusion
For the foregoing reasons, we reverse and remand for trial of the issues.
Reversed and remanded.
CAHILL, P.J., and Burke, J., concur.