                          No. 3--10--0831

                   Opinion filed March 21, 2011
_________________________________________________________________

                               IN THE

                     APPELLATE COURT OF ILLINOIS

                           THIRD DISTRICT

                             A.D., 2011

In re MARRIAGE OF               ) Appeal from the Circuit Court
ROSEMARIE A'HEARN,              ) of the 12th Judicial Circuit,
                                ) Will County, Illinois,
     Petitioner-Appellee,       )
                                )
     and                        ) No. 05--D--884
                                )
MICHAEL A'HEARN,                ) Honorable
                                ) Dinah J. Archambeault,
     Respondent-Appellant.      ) Judge, Presiding.
_________________________________________________________________

     JUSTICE HOLDRIDGE delivered the judgment of the court, with
opinion.
     Justice Carter concurred in the judgment and opinion.
     Justice McDade concurred in part and dissented in part, with
opinion.
_________________________________________________________________

                               OPINION

     The respondent, Michael A'Hearn, appeals from an order below

dismissing his petition for temporary and permanent custody of

the parties' 14-year-old son Michael (Mikey) A'Hearn.    Michael

argues that the trial court abused its discretion by barring all

of his witnesses from testifying.    We reverse and remand.

                                FACTS
     Michael and Rosemarie (Rose) A'Hearn were married in 1982

and divorced in 2006.   At the time of their divorce, the parties

agreed to joint custody of Mikey, with Michael awarded visitation

consistent with the Will County guidelines.   On May 1, 2008,

Michael filed two petitions for rule to show cause.   One petition

alleged that Rose had interfered with Michael's visitation, and

the other alleged that Rose had engaged in immoral behavior by

frequently inviting men over and by taking Mikey across state

lines to spend a weekend with a man she had met on the Internet.

The parties attended mediation on June 5, 2008, and reached an

agreement as to communication and visitation, but not custody.

     Approximately one month later, Michael filed his petition to

modify custody.   Michael's petition did not mention the petitions

for rule to show cause or the fact that he had allegedly been

denied visitation.   Instead, Michael sought a change of custody

because he was "better able to offer a stable and nurturing

environment, emotionally and physically, for [Mikey]" and because

Rose had exhibited "erratic and irrational emotional behavior."

Michael also filed a motion requesting the court to appoint an

evaluator under section 604(b) of the Illinois Marriage and

Dissolution of Marriage Act, which the court allowed.   750 ILCS

5/604(b) (West 2008).   The court appointed Dr. Mary Gardner, who

                                 2
recommended that residential custody of Mikey be transferred to

Michael.

       This matter was originally scheduled for trial on

December 14, 2009, but on November 23, 2009, the trial was reset

for May 17, 2010.    Michael's attorney was also informed on

November 23, 2009, that he had to answer the outstanding

discovery and provide a list of witnesses by February 1, 2010.

Michael did not comply with the discovery order, and on May 4,

2010, Rose filed a motion to bar witnesses.     Michael finally

disclosed his witnesses at 4:50 p.m. on May 12, 2010.

       Rose's motion to bar witnesses was heard on May 13, 2010.

When asked to explain his behavior, Michael's attorney stated

that he had completed the Illinois Supreme Court Rule 213(f)

(eff. Jan. 1, 2007) disclosures on March 24, 2010, but that for

some unexplained reason his assistant had failed to send them

out.    After finding that Michael's late disclosures would be

prejudicial to Rose and that Michael had violated both a court

order and the supreme court rules, the trial court sanctioned

Michael by barring his witnesses.     The court then dismissed

Michael's petition for custody with prejudice after finding that

he could not prevail on his petition without witness testimony.

Shortly thereafter, Rose filed a petition to extend unallocated

                                  3
maintenance and family support.   On September 23, 2010, the trial

court denied Michael's motion to reconsider, and he appealed the

dismissal of his custody petition.    Rose's petition for extension

of maintenance and family support remained pending before the

trial court at the time of appeal.

                             ANALYSIS

     On appeal, Michael argues that the trial court abused its

discretion by barring his witnesses as a discovery sanction.

Michael also claims that the trial court misapplied Illinois

Supreme Court Rule 213 (eff. Jan. 1, 2007) because section 604(b)

evaluators are not witnesses that have to be disclosed under the

rule.   However, before we can reach the merits of Michael's

argument, first we must decide whether we have jurisdiction over

the matter.

                          I. Jurisdiction

     The posture of this case raises a question as to whether the

trial court's September 23, 2010, order constituted a final and

appealable order pursuant to Illinois Supreme Court Rule 301

(eff. Feb. 1, 1994) and, therefore, whether we have jurisdiction

over this case.   Specifically, because Michael's petitions for

rule to show cause and Rose's petition to extend maintenance were

pending in the trial court, the trial court's order did not

                                  4
resolve all issues between the litigants in this case.       Although

the parties did not address the issue of our jurisdiction, we

have an independent duty to consider it.       Vowell v. Pedersen, 315

Ill. App. 3d 665 (2000).    Our review is de novo.     In re Marriage

of Gutman, 232 Ill. 2d 145 (2008).

     An order is final and appealable if it " 'terminates the

litigation between the parties on the merits or disposes of the

rights of the parties, either on the entire controversy or a

separate part thereof.' "    Gutman, 232 Ill. 2d at 151 (quoting

R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159

(1998)).   A final order that disposes of fewer than all the

parties' claims is not appealable absent an Illinois Supreme

Court Rule 304(a) (eff. Feb. 26, 2010) finding that there is no

just reason to delay the appeal.       Gutman, 232 Ill. 2d 145.   A

claim is " 'any right, liability or matter raised in an

action.' "   Gutman, 232 Ill. 2d at 151 (quoting Marsh v.

Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 465

(1990)).

     We note at the outset that the case law on this issue is

currently inconsistent and difficult to reconcile.       Much of the

inconsistency stems from whether postdissolution petitions are

properly characterized as new claims within a single action or as

                                   5
multiple actions.   Compare In re Marriage of Carr, 323 Ill. App.

3d 481 (1st Dist. 2001), with In re Marriage of Duggan, 376 Ill.

App. 3d 725 (2d Dist. 2007).    As Rule 304(a) states, a final

order that disposes of fewer than all of the claims in one action

is not appealable unless the trial court makes a written finding

that there is no just reason to delay enforcement or appeal or

both.   Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010).    Thus,

postdissolution petitions or motions that are separate actions

are independently appealable upon their resolution, whereas

filings that are part of a larger action are only appealable when

the larger action is resolved, absent a Rule 304(a) finding.

     In In re Custody of Purdy, 112 Ill. 2d 1 (1986), our supreme

court held that a father's postdissolution motion for custody

constituted a separate cause of action.    The court held that the

trial court's ruling on the motion constituted a final and

appealable order despite the fact that the mother's visitation

schedule for summer vacation was still undecided.     Purdy, 112

Ill. 2d 1.   As opposed to a dissolution action, which presents

multiple issues such as property, maintenance, custody, and child

support, the court noted that the issue of custody raised in a

postdissolution motion was a separate matter and was not

ancillary to any other issue.    Purdy, 112 Ill. 2d 1.   The court

                                  6
ruled that, "[a]n order for a change of custody in this context

constitutes a final, and therefore appealable, order."    Purdy,

112 Ill. 2d at 5.

       Since the decision in Purdy, a split has developed among the

appellate courts regarding whether postdissolution petitions are

construed as new actions or as new claims within the original

dissolution proceeding.    See, e.g., In re Marriage of Ehgartner-

Shachter, 366 Ill. App. 3d 278 (2006) (describing the split

between the First and Second Districts regarding jurisdiction of

postdissolution proceedings).    In 2001, the First District of the

Appellate Court decided In re Marriage of Carr, 323 Ill. App. 3d

481.    In Carr, the husband filed a motion to reduce child support

after one of his children from the marriage turned 18.    Carr, 323

Ill. App. 3d 481.    While the child support matter was pending,

the wife filed a petition for attorney fees.    Carr, 323 Ill. App.

3d 481.    After the trial court ruled in the husband's favor on

his motion, the wife filed a petition for rule to show cause

against the husband for failure to pay college expenses.     Carr,

323 Ill. App. 3d 481.

       The First District held that, despite the fact that

petitions were still pending in the trial court, the trial

court's order granting the husband's motion to reduce child

                                  7
support was final and appealable.     Carr, 323 Ill. App. 3d 481.

In so reasoning, the court noted that the wife's petition for

fees had nothing to do with the original dissolution proceeding,

which had taken place 10 years prior.     Carr, 323 Ill. App. 3d

481.    In addition, the trial court's order modifying child

support was separate from and unrelated to either the petition

for fees or the rule to show cause.     Carr, 323 Ill. App. 3d 481.

       In contrast, the Second and Fourth Districts have held

postdissolution petitions constitute new claims within the same

action and therefore Rule 304(a) certification is required in

order for the appellate court to exercise jurisdiction. In re

Marriage of Alyassir, 335 Ill. App. 3d 998 (2d Dist. 2003); In re

Marriage of Gaudio, 368 Ill. App. 3d 153 (4th Dist. 2006).      In

particular, the Second District in Duggan, 376 Ill. App. 3d 725,

explained in dicta why it did not consider postdissolution

petitions to be separate actions.     The Duggan court relied

heavily on In re Marriage of Kozloff, 101 Ill. 2d 526 (1984), to

argue that postdissolution proceedings were a continuation of the

original dissolution action.    Duggan, 376 Ill. App. 3d 725.

            In Kozloff, the parties began filing a series of

motions shortly after the divorce became finalized.     Kozloff, 101

Ill. 2d 526.    All of these petitions were heard by one particular

                                  8
judge.    In an apparent attempt to avoid that judge, the husband

argued that he was entitled to a change of venue as of right on

his petition to terminate maintenance because each

postdissolution petition constituted a new action.      Kozloff, 101

Ill. 2d 526.        Our supreme court disagreed with the husband's

argument and stated:

       "Under the [proposed] rule, however, a change of venue can

       be sought on any post-decree petition if the litigant is

       dissatisfied with the judge's prior rulings on other,

       related petitions despite the fact that all of the petitions

       emanate from the same dissolution proceedings.    Too, if

       after one change of venue on a particular petition the

       litigant is still unhappy, he could replace the second judge

       simply by voluntarily dismissing his petition and refiling a

       substantially similar petition and another motion for change

       of venue."     Kozloff, 101 Ill. 2d at 531.

       Moreover, the Duggan court found it significant that in

Purdy the trial court had made a Rule 304(a) finding that there

was no just reason to delay the appeal.      Duggan, 376 Ill. App. 3d

725.    Thus, the court reasoned that Purdy merely stands for the

proposition that judgment on a postdissolution petition may be



                                     9
appealed, but only with a Rule 304(a) finding.   Duggan, 376 Ill.

App. 3d 725.

     The special concurrence in Duggan advocated following the

Carr approach.   Duggan, 376 Ill. App. 3d at 746 (O'Malley, J.,

specially concurring).   Justice O'Malley read Kozloff narrowly

and argued that its holding was limited to venue.   Duggan, 376

Ill. App. 3d at 748 (O'Malley, J., specially concurring).   He

suggested that extending Kozloff beyond venue was incorrect

because such a reading conflicted with Purdy.    Duggan, 376 Ill.

App. 3d at 749 (O'Malley, J., specially concurring).   Justice

O'Malley reasoned that "[i]f, as the majority asserts, a

postdecree petition is actually a continuation of the original

dissolution proceeding, then there never is a postdecree

petition," and Purdy "would become wholly superfluous."

(Emphasis added.)   Duggan, 376 Ill. App. 3d at 752 (O'Malley, J.,

specially concurring).

     The supreme court's latest decision in Gutman, 232 Ill. 2d

145, did not resolve this conflict.   In Gutman, the court held

that the trial court's order terminating maintenance was not a

final and appealable order because the wife had a petition for

rule to show cause pending in the trial court.   Gutman, 232 Ill.

2d 145.   The parties obtained a divorce in 1996, but the issue of

                                10
maintenance was reserved for the trial court.     Gutman, 232 Ill.

2d 145.    In 1999, the court ordered the husband to pay

maintenance for three years.    Gutman, 232 Ill. 2d 145.

Approximately three years later, the wife filed a motion seeking

to continue maintenance payments, and the husband filed a motion

seeking to terminate maintenance.     Gutman, 232 Ill. 2d 145.

After both motions were filed, the wife filed a petition for

indirect civil contempt, alleging that the husband had stopped

making maintenance payments in violation of the trial court's

order.    Gutman, 232 Ill. 2d 145.    The trial court issued a rule

to show cause against the husband.     Gutman, 232 Ill. 2d 145.

After the wife failed to appear for a hearing, the trial court

granted the husband's motion to terminate maintenance.     Gutman,

232 Ill. 2d 145.

     The appellate court held that, although the wife's contempt

petition was a "part" of her overall action, jurisdiction was

proper because the petition did not raise "a claim for relief."

(Internal quotation marks omitted.)     Gutman, 232 Ill. 2d at 151.

The court reasoned that, because the contempt petition

constituted a special, separate, proceeding, the trial court's

order terminating maintenance was a final and appealable order.

Gutman, 232 Ill. 2d 145.    Our supreme court disagreed with the

                                 11
appellate court's reasoning, finding that the wife's contempt

petition was a part of her overall action to continue

maintenance.   Gutman, 232 Ill. 2d 145.   Without overruling or

distinguishing Purdy or Carr, the court simply held that the

wife's contempt petition was not a separate claim.    Gutman, 232

Ill. 2d 145.

     Having carefully analyzed the above cases, we agree with

Carr and the special concurrence in Duggan that postdissolution

proceedings are generally new actions.    We do not think that the

Second District's approach appropriately acknowledges the

significance of Purdy or is flexible enough to accommodate the

reality of postdissolution litigation.    The majority in Duggan

even acknowledged:

     "Purdy established the proposition that postdissolution

     petitions are neither (1) part of the single claim

     encompassing the predissolution proceedings *** nor (2) so

     intertwined with all other postdissolution matters that they

     necessarily must be viewed as raising a single

     postdissolution claim, no part of which could be appealed if

     some other part remained to be resolved."    Duggan, 376 Ill.

     App. 3d at 739.



                                12
     The Purdy court specifically emphasized the fact that the

father's custody motion was not part of the original dissolution

proceeding or any other issue.    Purdy, 112 Ill. 2d 1.   At the

very least, Purdy left open the option for the reviewing court to

consider whether a postdissolution order constitutes a final and

appealable order if the postdissolution petition was not related

to any other matter.

     Moreover, we understand that courts desire to avoid deciding

piecemeal appeals (Marsh, 138 Ill. 2d 458), but we think the Carr

approach, while perhaps allowing more appeals, upholds the trial

court's intent in entering a dispositive order.    See Duggan, 376

Ill. App. 3d at 746-47 (O'Malley, J., specially concurring).       In

addition, the other competing policy interest is acting in the

best interest of the child.    In re A.W.J., 197 Ill. 2d 492

(2001).   Postdissolution proceedings may well continue a decade

or more after the divorce decree is entered.    See Carr, 323 Ill.

App. 3d 481.   Overall, it does not serve the interests of justice

where one party can defeat appellate jurisdiction, especially on

issues of child custody, simply by filing a separate, completely

unrelated petition.    The case sub judice is a perfect example.

Rose, having won at the trial level on a custody issue, could

simply defeat appellate jurisdiction by filing her petition to

                                 13
extend maintenance which, on its face, has nothing to do with a

modification of child custody.

     We note briefly that, although there are interlocutory

appeals that provide for appellate review in postdissolution

proceedings, these mechanisms would not have given us

jurisdiction in this case.    Illinois Supreme Court Rule 304(b)(6)

(eff. Feb. 26, 2010) provides that orders modifying custody are

immediately appealable without a special finding by the trial

court.    However, the trial court did not modify custody in this

case; instead, it denied the petition to modify custody.    In

addition, Illinois Supreme Court Rule 306(a)(5) (eff. Feb. 26,

2010) allows a party to request an interlocutory appeal if the

trial court's order affects the care and custody of unemancipated

minors.    Yet in order to request an interlocutory appeal, the

party requesting such an appeal must file a request within 14

days, and here Michael did not file his original notice of appeal

until that period had passed.    Ill. S. Ct. R. 306(b)(1) (eff.

Feb. 26, 2010).

     Finally, this holding is not in conflict with Gutman.

Gutman accepted the Second District's finding that the petition

for rule to show cause was a "part" of the underlying proceeding

and consequently represented an unresolved claim that prevented

                                 14
appellate jurisdiction without a Rule 304(a) finding by the trial

court.   Gutman, 232 Ill. 2d 145.     Indeed, petitions for rule to

show cause may often constitute part of the underlying proceeding

if they are filed during the pendency of a larger petition.     See

In re Marriage of Carrillo, 372 Ill. App. 3d 803 (2007) (holding

that jurisdiction would have been defeated by a pending petition

for rule to show cause alleging interference with visitation

while custody of children was still in dispute).

     Having established all of the above, we hold that we can

exercise jurisdiction in this case.     The petitions for rule to

show cause are not related to the modification for custody

petition.   In the instant case, the petitions for rule to show

cause were filed before the petition for modification for

custody.    The parties were referred to mediation in the hope that

no further court action would be necessary.     The mediator

reported that the parties had reached an agreement on visitation

and communication but not custody.     Michael filed his petition to

modify custody only after mediation efforts failed.     Thus,

although there was no final order with regard to the petitions

for rule to show cause, those issues were apparently addressed

through mediation, and it was only when mediation failed on

custody that Michael filed his petition.     Furthermore, the

                                 15
petition to modify custody did not mention the petitions for rule

to show cause and instead referred to Rose's "erratic and

irrational emotional behavior."    Overall, the petitions for rule

to show cause and the custody petition have the character of two

separate actions.

     Similarly, Rose's petition to continue maintenance is a

separate action.    Rose's petition alleges that she needs

continued maintenance because of her low income and the fact that

she left the work force during the marriage to care for the

parties' children.    Although the petition makes passing

references to "family support" and "child support," the factual

allegations contained in Michael's petition to modify custody and

Rose's petition for continued maintenance are completely distinct

and unrelated.   We hold that because the petition for

modification of custody was independent and separate from the

petitions for rule to show cause and the petition for continued

maintenance, they constitute separate actions and not related

claims.

                       II. Abuse of Discretion

     Having decided that we have jurisdiction to review this

case, we must now decide whether barring Michael's witnesses

pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1,

                                  16
2002) and then dismissing his petition was an appropriate

discovery sanction.   We review for an abuse of discretion.

Shimanovsky v. General Motors Corp., 181 Ill. 2d 112 (1998).     An

abuse of discretion occurs where no reasonable person would adopt

the trial court's view.    McClaughry v. Village of Antioch, 296

Ill. App. 3d 636 (1998).

     A sanction that results in the dismissal of litigation is

considered drastic and should only be employed when all other

enforcement efforts have failed.      Sander v. Dow Chemical Co., 166

Ill. 2d 48 (1995).    Dismissal is appropriate only when a litigant

has shown a "deliberate and contumacious disregard for the

court's authority."   Sander, 166 Ill. 2d at 68.

     In this case, barring all of Michael's witnesses and then

dismissing his petition was too harsh of a sanction.     As Michael

concedes, the trial court's dissatisfaction was justified.

Despite the fact that Michael was given several more months to

complete discovery, he waited until a couple of days before trial

to disclose his witnesses.    However, dismissal in this case was

an abuse of discretion because the trial court imposed the

harshest sanction available after insufficient enforcement

efforts.   See Dotson v. Bravo, 321 F.3d 663 (7th Cir. 2003)



                                 17
(holding that dismissal should be employed when other, less

drastic sanctions have proven to be unavailing).

     Our review of the record establishes that the only effort

the trial court undertook to compel Michael into complying with

discovery was to continue the trial and issue a new due date.

Then, when Michael failed to comply, the court barred his

witnesses despite the fact that other sanctions existed, such as

holding Michael's attorney in contempt or awarding Rose

reasonable attorney fees.   Ill. S. Ct. R. 219(c) (eff. July 1,

2002).   Even acknowledging the wide discretion given to trial

courts to impose sanctions, we believe it was an abuse of

discretion to bar all of Michael's witnesses after postponing the

discovery due date one time.

     In addition, "[i]n determining an appropriate sanction, the

trial judge must weigh the competing interests of the parties'

rights to maintain a lawsuit against the necessity to accomplish

the objectives of discovery and promote the unimpeded flow of

litigation."   Sander, 166 Ill. 2d at 68 (citing Amoco Oil Co. v.

Segall, 118 Ill. App. 3d 1002, 1013 (1983)).   In the instant

case, while the trial court certainly had an interest in seeking

compliance with its discovery order, our supreme court has stated

that child custody proceedings should focus on the best interest

                                18
of the child.   Ill. S. Ct. R. 900(a) (eff. July 1, 2006).   We do

not find that it is in the best interest of the child to have a

custody petition denied pursuant to a discovery sanction instead

of hearing the petition on the merits.     Therefore, we hold that

the trial court abused its discretion in imposing a sanction that

had the effect of dismissing Michael's petition.

        III. Independent Evaluator as Rule 213(f) Witness

     Because we hold that the trial court abused its discretion,

we do not need to address Michael's argument that Dr. Gardner, a

professional therapist appointed pursuant to section 604(b), was

not a witness that needed to be disclosed under Rule 213(f).

Ill. S. Ct. R. 213(f) (eff. Jan. 1, 2007).

                              CONCLUSION

     We hold that we have jurisdiction to hear this case because

the postdissolution petition is properly construed as a separate

action, not a new claim within the original dissolution

proceeding.   Moreover, we hold that the trial court abused its

discretion by barring all of Michael's witnesses without engaging

in more efforts to encourage compliance, especially in a child

custody case.   Therefore, we reverse and remand for proceedings

not inconsistent with this opinion.

     Reversed and remanded.

                                  19
       JUSTICE McDADE, specially concurring in part, dissenting in

part:

       I concur in the judgment of the court with respect to the

issue of jurisdiction.    I cannot disagree with the analysis of

the case law undertaken by the majority.    Nor can I overlook the

fact that our decision constitutes a reasonable reconciliation of

In re Custody of Purdy, 112 Ill. 2d 1 (1986), and In re Marriage

of Gutman, 232 Ill. 2d 145 (2008), and the relevant appellate

court cases.    I, therefore, concur in this portion of the

opinion.

       I write separately, however, to address a very practical

concern.    I am troubled by the fact that three "separate actions"

in the instant case, all pending in the trial court at the same

time, can eventually result in three separate appeals.    In my

opinion, a failure to resolve all of the concurrently-pending

"actions" so they can be reviewed in a single appeal is an

unwarranted creation of piecemeal litigation even if it is

technically compliant with a credible interpretation of existing

law.    It is my assumption that, given the split in the circuits

on this issue, the supreme court will ultimately resolve it, and

trust that this potential and unnecessary proliferation of

appeals will form part of its consideration.

                                 20
     With respect to the question of the discovery sanction, I do

not find an abuse of discretion and therefore dissent from the

contrary finding of the majority.     The trial court sanctioned a

fairly flagrant violation of the rules of discovery.     The fact

that one party (Rose) faces the potential of being blind-sided by

undisclosed evidence or witnesses seems to me to be no less

detrimental to a reasoned determination of the ultimate best

interest of the child than the exclusion of evidence tendered by

a party who has willfully violated the fair play that is inherent

in both the discovery rules themselves and the effectiveness of

our adversarial system.   The less drastic alternative sanctions

suggested by the majority – holding Michael’s attorney in

contempt or awarding Rose reasonable attorney fees – do not cure

the problems of an unbalanced consideration of the issues and an

unfair exercise in brinkmanship.     As between the party who has

followed the rules and the party who violated one court order,

failed to take advantage of an extension of the obligation to

produce discovery for several months, and then violated the

second court order; it does not seem either unreasonable or

unfair to sanction the offending party.     Nor does it seem

unreasonable to characterize this as "a deliberate and



                                21
contumacious disregard for the court’s authority."   Sander v. Dow

Chemical Co., 166 Ill. 2d 48, 68 (1995).

     I share the majority’s concern that such a sanction may

impact the evaluation of what is in the best interest of the

child.   However, the impact is not necessarily unfair inasmuch as

it could be reasonably inferred from Michael’s disregard of the

rule that he either (1) did not care enough about his child to

timely comply with its terms or the attendant court orders or (2)

did not have confidence that he could prevail on the merits

absent an unfair advantage.   That assessment is one that rests

with the trial judge who is in the best position to make it.   It

is not our right to second guess the court and make the

evaluation on our own.

     For all of the foregoing reasons, I agree that we have

jurisdiction to hear this appeal, but dissent from the decision

reversing and remanding this case.




                                22
