Niebert v. Al Piemonte Ford Sales, Inc.

No. 2--96-1522
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

NANCY J. NIBERT, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant and )
Cross-Appellee, )
)
v. ) No. 95--L--0032
)
AL PIEMONTE FORD SALES, INC., )
FORD MOTOR COMPANY, and FORD )
MOTOR CREDIT COMPANY, )
)
Defendants )
)
(Mechanical Breakdown ) Honorable
Protection, Inc., Defendant- ) Hollis Webster,
Appellee and Cross-Appellant). ) Judge,Presiding.
________________________________________________________________

JUSTICE RATHJE delivered the opinion of the court:

On January 9, 1995, plaintiff, Nancy J. Nibert, filed this
action against defendants, Al Piemonte Ford Sales, Inc. (Piemonte),
Ford Motor Company (Ford Motor), Ford Motor Credit Company (Ford
Credit), and Mechanical Breakdown Protection, Inc. (MBPI).
Counts I and II alleged that Piemonte, Ford Motor, and MBPI
were liable for breaches of express and implied warranties,
respectively, under the Magnuson-Moss Act (Magnuson-Moss)(15
U.S.C.A 2301 et seq. (West 1982)). Count III sought the
revocation of the contract between Piemonte and plaintiff. Count
IV alleged violations of the Consumer Fraud and Deceptive Business
Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West
1994)) by Piemonte and MBPI. Count V alleged common-law fraud
against Piemonte. Count VI sought the revocation of the retail
installment contract plaintiff entered into with Ford Credit.
In the week before trial, which was scheduled for August 26,
1996, plaintiff settled with Piemonte, Ford Motor, and Ford Credit.
MBPI had previously filed a motion for summary judgment, where it
argued that it was not liable for any breaches of express or
implied warranties and that it had not violated the Consumer Fraud
Act. MBPI further claimed that it was entitled to an award of its
attorney fees as a prevailing party under the Consumer Fraud Act.
The trial court granted MBPI's motion for summary judgment as to
all counts but denied its motion for attorney fees pursuant to the
Consumer Fraud Act. A timely appeal and cross-appeal were filed.
On appeal, plaintiff raises three issues, namely, (1) whether
the trial court erred in granting MBPI's motion for summary
judgment; (2) whether the trial court erred in denying plaintiff
leave to amend her complaint; and (3) whether the trial court
abused its discretion in awarding MBPI's attorney fees as a
sanction when MBPI failed to settle with plaintiff. On cross-
appeal, MBPI argues that the trial court erred in denying it leave
to file a petition for an award of attorney fees as the prevailing
party in a Consumer Fraud Act cause of action.
We first address plaintiff's argument that the trial court
erred in granting MBPI's motion for summary judgment on counts I,
II, and IV. Regarding counts I and II, plaintiff maintains that
there was a question of fact to be determined by the trier of fact
as to who is the responsible party under the subject vehicle
service contract (VSC) and what agreement, if any, exists as to the
essential terms of that VSC or if a contract exists at all under
the facts of this case. Defendant argues in response that this
court's opinion in Saladino v. Team Chevrolet, Inc., 242 Ill. App.
3d 735 (1993), is virtually undistinguishable from the instant
appeal and should control our determination of this issue as to
counts I and II.
It is beneficial at this point to briefly describe MBPI's
involvement in the instant appeal. MBPI is the administrator for
vehicle service contracts (VSCs) sold through dealerships, such as
Piemonte, to car buyers. Here, plaintiff had applied for a VSC
administered by MBPI when she bought the 1993 Escort from Piemonte.
MBPI subsequently accepted her application, and plaintiff paid $650
for the subject VSC.
Plaintiff testified via an evidence deposition taken on June
26, 1996. Plaintiff stated that in August 1993 she was working at
Sky Chief Catering, a company that provided in-flight food for
airlines. At that time, she owned a 1989 Ford Escort that she had
purchased from Piemonte. Plaintiff testified that she went that
month to Piemonte to look for a new car. She met a salesman named
Jeff. According to plaintiff, she told Jeff that she did not want
to buy a used car. Plaintiff came back to Piemonte two more times
before she found the car she wanted. She described it as a 1993
powder blue Ford Escort (Escort). Plaintiff stated that she first
saw the car in the Piemonte showroom, and Jeff told her it was a
"demo," driven only by salespeople. Plaintiff testified that it
was important to her that only Piemonte salespeople had driven the
Escort. Further, Jeff's "boss," whose name plaintiff could not
recall, talked with her on this third trip to Piemonte and
emphasized that the Escort had only been driven by salespeople.
According to plaintiff, no Piemonte employees ever told her
that the Escort had been owned by someone else. She testified that
Jeff and his boss told her that Piemonte would take $3,000 off the
price of the Escort because it was a "demo." Plaintiff testified
that she believed the $3,000 would be taken from the $14,259.67
asking price. The Escort did not have a window sticker. Jeff told
plaintiff that it had been lost or had fallen off and that he would
send it to her. Plaintiff stated that she never received the
window sticker from Piemonte. Jeff and his boss told her the
Escort had a new car warranty that was bumper-to-bumper.
Plaintiff stated that she traded in her 1989 Escort as part of
the deal. She estimated that the 1989 Escort to be worth $5,000.
She stated that, after the deal was executed, Piemonte put the 1989
Escort up for sale with an asking price of $5,600.
Plaintiff stated that, after she had agreed to purchase the
Escort, she was given a number of papers to sign. According to
plaintiff, Jeff talked throughout the signing of the papers, and
she could not recall if she had read through them. Included in the
documents she signed, was one wherein she acknowledged that she had
been told the Escort was a demonstrator. Further, she was given a
brochure entitled "Can You Afford Not To?," which discussed a VSC
administered by MBPI. Plaintiff further identified an application
form signed by her for a VSC administered by MBPI.
Plaintiff further stated that she discussed an "extended
warranty" with Jeff and his boss. She was told by them that this
new car warranty "would last for 75,000 miles and that it would
begin as soon as she [left] the place." They simply said the
coverage was "bumper to bumper."
At a later point in her testimony, plaintiff could not recall
if the salesmen used the term "warranty." Plaintiff further stated
that she also had been told that the 75,000-mile "warranty" would
begin at the end of the Ford bumper-to-bumper warranty.
According to plaintiff, the Escort was financed through Ford
Credit. She made the first 15 payments of $270.76 per month, but
stopped making payments in December 1994. During the months that
she was making payments, plaintiff took the car into Piemonte for
various repairs, including a faulty cassette player, exterior paint
problems, and a broken fog lamp.
Plaintiff testified that in November 1994 she received a phone
call from attorney Norman Lehrer, who informed her that the subject
Escort had been previously owned and had been in an accident. She
acknowledged that early in December 1994 she authorized her
attorneys to send a letter to Ford Motor revoking the contract.
Ford Motor never responded to this letter. Late in December 1994,
she received a letter from Ford Credit in which the latter informed
her that it was charging her late fees. She stated that she was
later sued by Ford Credit in a replevin action filed in the circuit
court of Cook County.
Finally, plaintiff stated that she would not have purchased
the Escort if she had known that it had been previously owned and
then repossessed and that she would not have purchased the vehicle
if she had known that the Ford bumper-to-bumper warranty began to
run before she bought it. Plaintiff further testified that
Piemonte never offered to take the Escort back and that she was
still driving it.
The record on appeal includes the following relevant documents
that related to the August 14, 1993, sale of the Escort to
plaintiff:
1. Piemonte "Bill of Sale." This was dated August 14,
1993. This shows that the selling price was $14,259.67, the
trade-in allowance was $4,000, and the unpaid balance was
$11,607.12.
2. "Acknowledgement of Disclosure by Dealer of
Demonstrator Motor Vehicle." This was dated August 14, 1993,
and signed the same day by plaintiff. Therein plaintiff
acknowledged that she had been told that the Escort was a
"demonstrator" and that the vehicle had not been previously
titled.
3. "Warranty Information Booklet" for 1993 Ford and
Mercury cars and light trucks. It states, inter alia, that
"Bumper to Bumper coverage begins at the warranty start date
and lasts three years or 36,000 miles, whichever occurs
first."
4. "Can You Afford Not To ***." This brochure explains
the VSC administered by MBPI. Under a heading entitled,
"Protect Your Investment," the brochure listed the various
systems of the vehicle and what repairs would be covered under
the VSC.
5. "Vehicle Service Contract Application." This
application was signed by plaintiff on August 14, 1993. Under
"Term Purchased," the application stated 72 months, 75,000
miles. Under "Current Mileage," the figure of 10,459 miles
was stated. Under "Plan Selected," the application states
that the "New Vehicle" plan was selected and that the
"Original In-Service Date" was November 30, 1992. The
application has a plan for "Pre-Owned Vehicles." The
application listed MBPI as the VSC's administrator.
6. "Vehicle Service Contract." This document listed
plaintiff as the "Purchaser" and Piemonte as the "Issuing
Dealer." It stated that the VSC expired on November 30, 1998,
or 75,000 miles, "whichever occurs first." This VSC further
lists the sale mileage as 10,459.
7. "Illinois Vehicle Retail Installment Contract."
Dated August 14, 1993, this contract states that the cash
price of the Escort was $15,600.12 and the amount financed was
$12,257.12. It further stated that the total sales price (the
total price of the purchase on credit, including the trade-in
of $4,000) was $16,996.48.
In Graf v. St. Luke's Evangelical Lutheran Church, 253 Ill.
App. 3d 588, 591 (1993), this court set out the relevant standard
of review:
"Summary judgment is a drastic means of disposing of
litigation and should be allowed only when the right of the
moving party to judgment is clear and free from doubt.
[Citation.] The purpose of a summary judgment proceeding is
to determine whether there are any genuine issues of material
fact which should be tried. [Citation.] In making this
determination, the evidence is to be construed strictly
against the movant and liberally in favor of the opponent.
[Citation.] Only if the pleadings, depositions and affidavits
reveal no genuine issue of material fact is the moving party
entitled to judgment as a matter of law."
Moreover, construing a contract is a matter of law suitable
for summary judgment. Saladino v. Team Chevrolet, Inc., 242 Ill.
App. 3d 735, 740 (1993). There is a disputed fact precluding
summary judgment when the material writing contains an ambiguity
that requires the admission of extrinsic evidence. Saladino, 242
Ill. App. 3d at 740.
In deciding the motion for summary judgment as to the express
and implied warranty counts, the trial court wrote the following:
"Plaintiff contends that Saladino, 242 Ill. App. 3d at
735, is distinguishable. There, the defendant rejected the
application for extended repair services because the car was
too old. However, the court clearly held that the document at
issue was a repair contract, not a warranty, and granted
summary judgment on the warranty claims. Both here and in
Saladino, plaintiff argued apparent agency by the dealership
regarding representations made. No such allegations appear in
either action. In this case, plaintiff has requested leave to
file an amended complaint. That motion was denied. This
court must consider the existing complaint in deciding MBPI's
summary judgment motion.
Plaintiff has failed to provide this court with any
evidence to support her allegation that MBPI breached an
express or implied warranty. The application was prepared by
the dealership and signed by only plaintiff and dealer. MBPI
was not involved at the negotiation stage, and cannot be held
liable for making any warranties on this vehicle. Pursuant to
Saladino, the application was related to a service contract
and not a warranty. Accordingly, MBPI's motion for summary
judgment is granted on counts I and II."
We find that the trial court correctly relied on Saladino to
grant summary judgment in MBPI's favor on counts I and II. In
Saladino, plaintiffs alleged, inter alia, a breach of express and
implied warranty against defendant, Ryan Warranty Services, Inc.
(Ryan), under the Magnuson-Moss Act. The Saladino court described
Ryan's involvement in plaintiff's purchase of the subject vehicle
thusly:
"[Plaintiffs] returned to [salesman Ed Maniurka's] office
at Team Chevrolet where Ed showed [plaintiffs] a brochure
entitled, 'Extended Used Car Protection Select Car Coverage,
Administered by: Ryan Warranty Services, Inc.' After
reaching an agreement as to the purchase price of the vehicle,
Jim Foley, another salesman, presented a form to Joe and
Connie entitled, 'Used Vehicle Mechanical Repair Agreement.'
The name 'Ryan Warranty Services, Inc.' appeared at the
top of the form. Joseph Saladino was listed as the customer,
Team Chevrolet was listed as the dealer, and the coverage
under the agreement was to be for 12 months from the agreement
date or when 12,000 additional miles were registered on the
odometer, whichever occurred first. The agreement date was
listed as August 28, 1989. The odometer reading was listed as
36,706 miles. The agreement provided space for the signatures
of the customer and the dealer's representative. Joseph
Saladino signed the agreement as customer, and J. Foley signed
as dealer's representative.
The agreement states: 'This form describes the
protection you will have under your Mechanical Repair
Agreement. In return for payment by you of the Agreement
Charge and subject to all the terms of this Agreement, we
agree with you as follows ***.' (Emphasis in original.) The
terms 'you' and 'your' are defined as meaning the customer.
The terms 'we,' 'us,' or 'our' are defined as meaning the
dealer issuing the agreement. The agreement sets forth the
specific parts covered. It excludes costs covered by any
warranty of the manufacturer, State-required dealer warranty
or repairer's guarantee." Saladino, 242 Ill. App. 3d at 737.
Ryan filed a motion for summary judgment in the trial court.
At the hearing on this motion, plaintiffs argued, inter alia, that
there was a factual dispute over whether the agreement was a
warranty. After hearing argument, the trial court ruled that the
document was a repair contract and not a warranty. It further
found that any assertions that the document was a warranty were not
made by Ryan's employees. The trial court granted summary judgment
in Ryan's favor.
Addressing the issue of the propriety of granting Ryan's
motion for summary judgment as to the breaches of express and
implied warranties, the Saladino court set out the relevant
definitions, thusly:
"The Magnuson-Moss Act defines a 'written warranty' as:
'(A) any written affirmation of fact or
written promise made in connection with the sale of
a consumer product by a supplier to a buyer which
relates to the nature of the material or
workmanship and affirms or promises that such
material or workmanship is defect free or will meet
a specified level of performance over a specified
period of time, or
(B) any undertaking in writing in connection
with the sale by a supplier of a consumer product
to refund, repair, replace, or take other remedial
action with respect to such product in the event
that such product fails to meet the specifications
set forth in the undertaking,
which written affirmation, promise, or undertaking
becomes part of the basis of the bargain between a
supplier and a buyer for purposes other than resale
of such product.' 15 U.S.C.A. 2301(6) (West
1982).
An 'implied warranty' is defined as 'an implied warranty
arising under State law *** in connection with the sale by a
supplier of a consumer product.' [Citation.] The agreement
at issue does not come within either definition.
In fact, the Magnuson-Moss Act defines a 'service
contract' as 'a contract in writing to perform, over a fixed
period of time or for a specified duration, services relating
to the maintenance or repair (or both) of a consumer product.'
15 U.S.C.A. 2301(8) (West 1982)." Saladino, 242 Ill. App.
3d at 741.
Based upon these definitions, the Saladino court concluded
that the trial court correctly found that the agreement was a
service contract and not a warranty. Saladino, 242 Ill. App. 3d at
741.
In the appeal at bar, the same reasoning undercuts plaintiff's
argument. Though the terms and conditions of the subject VSC are
not identical to those of the VSC agreement in Saladino, the
following portion of the subject VSC demonstrates that the two
agreements are substantially similar. As stated previously, in the
subject agreement plaintiff was listed as "Purchaser" and Piemonte
was listed as "Issuing Dealer."
"CONTRACT: This Vehicle Service Contract ('CONTRACT') is
between the issuing Dealer ('DEALER') and the Purchaser
('PURCHASER') Of the Vehicle ('Vehicle') as designated above,
The CONTRACT provides specific protection for the time or
mileage as indicated above, whichever occurs first. The
DEALER agrees, subject to the terms and conditions of this
CONTRACT, itemized herein, to repair, replace or reimburse the
PURCHASER for authorized reasonable cost for parts and labor,
to repair or replace any of the component/parts (which are not
excluded) protected by this CONTRACT, if required, due to a
MECHANICAL BREAKDOWN. Repair or replacement of the
component/parts shall be performed by the DEALER or repair
facility as authorized by the ADMINISTRATOR. The decision
concerning procedure to repair or replace the component/parts
shall be made at the discretion of the ADMINISTRATOR.
Replacement of parts may be with a like kind and quality
(i.e., new, remanufactured or pre-owned parts). As a
condition pursuant to the OBLIGATIONS of the DEALER to repair
or replace any component/part, the PURCHASER shall have
complied with all terms and conditions of this CONTRACT,
including specifically (but without limitation) to the
requirements for maintaining the VEHICLE (see 'MAINTENANCE
SCHEDULES') on the CONTRACT)."
We conclude that the subject agreement is a VSC and not a
warranty. Following Saladino, we find that the subject agreement
does not come within the definitions of express and implied
warranties set out in the Magnuson-Moss Act. Accordingly, we hold
that the trial court properly granted summary judgment in MBPI's
favor on counts I and II of the complaint.
Plaintiff next argues that the trial court erred in granting
MBPI's motion for summary judgment as to the Consumer Fraud Act
count. Plaintiff maintains that there are a number of factual
disputes regarding this count that must be determined by the trier
of fact. In response, MBPI maintains that the record does not
demonstrate that it made misrepresentations to plaintiff or
ratified misrepresentations made by Piemonte to plaintiff.
In granting MBPI's motion for summary judgment as to the
consumer fraud count, the trial court stated:
"In this case, Plaintiff lacks any evidence that MBPI
made a false statement of any sort. The Application was
filled out and priced by the dealership. Plaintiff has not
been given leave to file an Amended Complaint alleging agency
or apparent agency. The record contains no support for the
argument that MBPI accepted the application knowing that it
contained false or fraudulent statements. Accordingly, MBPI's
Motion for Summary Judgment on Count IV is granted."
We do not agree with the trial court's assessment of the
evidence in regard to the Consumer Fraud Act count. Of particular
concern is plaintiff's application for the VSC. That document
states that the current mileage on the Escort was 10,459. We note
in passing that this appears to be a very high amount of mileage
for a dealership's demonstration vehicle. In a box next to that
for mileage, the application states that the "In-Service Date" is
August 14, 1993. In a box right below those of "Mileage" and "In-
Service Date," under the heading "TERM PURCHASED," the application
states 72 month--75,000 miles.
Farther down the application there is a heading entitled "Plan
Selected." Below that is a box with the heading "New Vehicle." In
that box, the "Original In-Service Date" is listed as November 30,
1992. In the same box, the "Purchase Date" is stated as August 14,
1993.
There is an apparent contradiction in this application between
the in-service dates, i.e., November 30, 1992, and August 14, 1993.
Further, it appears from this application that the term purchased
by plaintiff began to run on November 30, 1992, and that, on
plaintiff's purchase date of August 14, 1993, the duration of the
VSC was down to less than 65,000 miles and approximately 64 months.
While we are not certain what this all means regarding the
subject VSC, it raises enough questions as to MBPI's ratification
of the VSC application for us to disagree with the trial court's
granting of summary judgment in MBPI's favor on the Consumer Fraud
Act count. It is up to the trier of fact to sift through this
evidence and determine whether there is a violation under the
Consumer Fraud Act.
Moreover, Saladino is of little relevance here. In Saladino,
there was apparently no evidence of any possible misrepresentations
in the documents related to the VSC, a clear distinction from the
subject VSC.
Next, plaintiff argues that the trial court erred in denying
her motion to amend her complaint. After reviewing the arguments
and the facts, we find that the trial court did not abuse its
discretion in denying plaintiff's motion to amend the complaint.
However, in regard to the Consumer Fraud Act count, we note that
the time constraints that supported the denial of the motion, e.g.,
the necessity of reopening discovery and the lateness of
introducing an entirely new legal theory, will not likely be
present on remand.
Finally, plaintiff argues that the trial court erred in
ordering plaintiff's attorney to pay MBPI $500 in fees for his
failure to settle the case with MBPI. Specifically, plaintiff
contends, inter alia, that the trial court has the obligation to
state the basis upon which the fees are awarded and that the trial
court made no such finding. Plaintiff's attorney also argues that
the $500 fee amounts to a contempt citation and yet he was given no
opportunity for a hearing on the matter.
In response, MBPI admits that the sanction was for contempt of
court and contends that the trial court acted properly in imposing
the $500 sanction which, according to MBPI, was imposed because of
plaintiff's attorney's "unjustified and indefensible waste of
judicial resources and that of MBPI."
The trial in this case was scheduled for August 26, 1996. On
August 21, 1996, the parties were in open court to discuss the
progress of settlement negotiations. During this hearing, the
following dialogue occurred between the trial court and plaintiff's
attorney:
"THE COURT: In light of the fact that we have a trial
date quickly approaching and certainly we have got motions for
summary judgment pending and counsel have been present in the
courtroom all morning prepared to argue those motions, let me
ask [plaintiff's attorney] what [his] position is on that.
MR. LEHRER [Plaintiff's attorney]: If in fact the case
settles, then I guess that takes care of that. If it doesn't,
I believed this case was settled before I left for vacation,
and as a result had not filed responses to the motions for
summary judgment. If the case does not settle, I will file an
emergency motion by tomorrow morning asking leave to file
responses to the summary judgment and asking for a short
continuance of the trial."
Subsequently, the attorney for MBPI told the court:
"MR. SCHWARTZ: Your Honor, on behalf of M.B.P.I., Mr.
Lehrer and I have never had any conversations whatsoever
regarding settlement between his client and Mechanical
Breakdown Protection. Our motion for summary judgment was
filed long ago. Mr. Lehrer was given an opportunity to reply,
or to respond, and I was given an opportunity to reply. That
briefing schedule was today pending the motion to amend the
complaint which was then denied. Mr. Lehrer was given an
additional amount of time to respond and I was given an amount
of time to reply. Any settlement discussions that have been
going on have involved Mechanical Breakdown Protection in no
way, shape, or form. Never been involved in any conversation,
never been made any offer, never -- never given an offer, no
demand has ever been made."
Further, on August 21, 1996, the trial court entered an order
which stated:
"Hearing on the motions for summary judgment continued until
tomorrow at 9:30 a.m. ***. If the case is not settled by
tomorrow, Plaintiff will be ordered to pay attorney's fees and
costs incurred by [Ford Motor] and [MBPI] in attending today's
scheduled hearing."
The trial court entered an order on August 22, 1996, which
stated in relevant part:
"Plaintiff's counsel shall pay the sum of $500 to MBPI as
an award of attorney's fees pursuant to this court's draft
order of 8/21/96."
The parties agree that the punishment meted out to plaintiff's
attorney was based on a finding of contempt of court. However,
there was no such finding made explicitly by the trial court, and
the trial court did not characterize what type of contempt was
involved. Nor is there any indication that the trial court held a
hearing on the matter.
We agree with the plaintiff's attorney that the manner in
which this matter was handled amounted to giving MBPI an advantage
in any settlement negotiations that would take place following the
August 21, 1996, hearing and prior to the 9:30 a.m. hearing on
August 22, 1996. Moreover, the trial court's failure to set out
the exact reasons for the $500 fine and its failure to hold a
hearing in a situation that, if proved, would amount to indirect
civil contempt (see, e.g., Pryweller v. Pryweller, 218 Ill. App. 3d
619, 629-35 (1991)) lead us to the conclusion that the order for
the $500 fine against plaintiff's attorneys must be reversed.
The question remains as to whether this court should remand
the matter for a hearing. When determining whether a contempt
hearing is necessary, the court of review should ask " 'what does
the court primarily seek to accomplish' " (People v. Doherty, 165
Ill. App. 3d 630, 634 (1988), quoting Shillitani v. United States,
384 U.S. 364, 370 16 L. Ed. 2d 622, 627, 86 S. Ct. 1531, 1535
(1966)). Obviously, in this matter, the trial court sought to
reach a settlement between plaintiff and MBPI. That is ultimately
a matter for the parties to decide and not one for the trial court
to coerce by means of fines. We conclude that, under the subject
circumstances, nothing would be gained by remanding this issue for
a contempt hearing. Accordingly, we reverse the imposition of the
$500 fine.
Finally, because the granting of MBPI's motion for summary
judgment on the Consumer Fraud Act count has been reversed and the
cause has been remanded, we do not need to address the issue raised
in MBPI's cross-appeal, wherein MBPI asserts that the trial court
erred in denying it leave to file a petition for an award of
attorney fees as prevailing party in a Consumer Fraud Act action.
For the reasons stated above, we affirm the judgment of the
circuit court of Du Page County in part, reverse it in part, and
reverse and remand the cause in part.
Affirmed in part; reversed in part; and reversed and remanded
in part.
DOYLE and HUTCHINSON, JJ., concur.