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                                   Appellate Court                          Date: 2017.08.01
                                                                            13:28:41 -05'00'




        Pekin Insurance Co. v. St. Paul Lutheran Church, 2016 IL App (4th) 150966



Appellate Court        PEKIN INSURANCE COMPANY, Plaintiff-Appellant, v. ST. PAUL
Caption                LUTHERAN CHURCH, an Illinois Religious Corporation; and
                       HOPE FARNEY, as Independent Administrator of the Estate of
                       KITTY MULLINS, Deceased, Defendants-Appellees.



District & No.         Fourth District
                       Docket No. 4-15-0966


Filed                  October 14, 2016
Modified upon
denial of rehearing    January 4, 2017



Decision Under         Appeal from the Circuit Court of Ford County, No. 15-MR-4; the
Review                 Hon. Matthew John Fitton, Judge, presiding.



Judgment               Appeal dismissed in part and affirmed in part.



Counsel on             Robert Marc Chemers and Richard M. Burgland (argued), of Pretzel
Appeal                 & Stouffer Chtrd., of Chicago, for appellant.

                       Thomas J. Pliura (argued), of LeRoy, for appellee St. Paul Lutheran
                       Church.

                       Michael J. Gravlin (argued), Sean Mussey, and Jakub D. Banaszak, of
                       Law Offices of Michael J. Gravlin LLC, of Chicago, for appellee
                       Hope Farney.
     Panel                    JUSTICE APPLETON delivered the judgment of the court, with
                              opinion.
                              Justices Holder White and Steigmann concurred in the judgment and
                              opinion.


                                                OPINION

¶1          This is an action for declaratory judgment. The plaintiff is Pekin Insurance Company
       (Pekin), and the two defendants are St. Paul Lutheran Church of Roberts, Illinois (church), and
       Hope Farney, the independent administrator of the estate of Kitty Mullins, deceased.
¶2          In a case separate from this one—the underlying tort case—Farney is suing the church for
       wrongful death, alleging that a church employee, Matthew Geerdes, while using his personally
       owned car for church business, negligently crashed into Mullins’s car, causing her death.
¶3          Pekin had issued the church an insurance policy, which covered bodily injury caused by the
       use of a non-owned auto for church business. In the present case, though, Pekin sought a
       declaratory judgment that, for two reasons (corresponding to counts I and II of its amended
       complaint for declaratory judgment), it had no contractual duty to defend its insured, the
       church, in Farney’s wrongful-death lawsuit. First, at the time of the accident, Geerdes was on
       his way to his other job, his job with University Lutheran Ministry of Bloomington-Normal,
       Illinois (University Lutheran); thus, Pekin contends, he was not using his car for church
       business, and there is no business liability coverage under the Pekin policy. Second, Country
       Mutual Insurance Company (Country Mutual) already was defending the church pursuant to
       the automobile liability policy it had issued to Geerdes, and the policy Pekin had issued to the
       church stipulated that the business liability coverage was excess coverage when it came to the
       use of a non-owned auto for church business and that as long as the primary insurer (in this
       case, Country Mutual) was defending the church, Pekin had no duty to do so.
¶4          The two defendants in this declaratory judgment action, the church and Farney, moved to
       dismiss Pekin’s amended complaint for declaratory judgment on the ground of failure to state a
       cause action. See 735 ILCS 5/2-615 (West 2014). The trial court granted their motions without
       prejudice. Afterward, when Pekin moved for permission to file a second amended complaint
       for declaratory judgment, the court not only denied permission to do so but stated that this time
       its ruling was “with prejudice.” Pekin appeals the dismissal of its amended complaint and,
       alternatively, the denial of permission to file the proposed second amended complaint.
¶5          We conclude that count I of the amended complaint for declaratory judgment is premature
       and that count II is moot. Because Pekin is silent as to count III, it has forfeited any challenge
       to the dismissal of that count. We find no abuse of discretion in the denial of permission to file
       the proposed second amended complaint, since it would not have cured the deficiencies in the
       amended complaint. Therefore, we dismiss this appeal as to count II of the amended complaint
       for declaratory judgment, and we otherwise affirm the trial court’s judgment.




                                                   -2-
¶6                                       I. BACKGROUND
¶7                    A. Pekin’s Amended Complaint for Declaratory Judgment
¶8        In its amended complaint for declaratory judgment, Pekin made the following allegations.

¶9                       1. The Insurance Policy That Pekin Issued to the Church
¶ 10       Pekin issued an insurance policy, No. 00BU11178, to the church. This policy, which had
       an effective policy period of October 24, 2012, to October 24, 2013, provided business liability
       coverage for “ ‘bodily injury’ or ‘property damage’ arising out of the use of any ‘non-owned
       auto’ in [the church’s] business by any person other than [the church].”
¶ 11       This business liability coverage was subject to the following condition pertaining to other
       insurance:
                   “H. OTHER INSURANCE
                   (1) If there is other insurance covering the same loss or damage, we will pay only
               for the amount of covered loss or damage in excess of the amount due from that other
               insurance, whether you can collect on it or not.
                   (2) Business Liability Coverage is excess over any other insurance that insures for
               direct physical loss or damage.
                   (3) When this insurance is excess, we will have no duty to defend any claim or
               ‘suit’ that any other insurer has a duty to defend. If no other insurer defends, we will
               undertake to do so; but we will be entitled to the insured’s rights against all those other
               insurers.”

¶ 12                                    2. The Underlying Lawsuit
¶ 13       In Farney v. Geerdes, Ford County Circuit Court case No. 13-L-14, Farney, as the special
       administrator of Mullins’s estate, filed a third amended complaint against four defendants:
       Matthew Geerdes, Larry Thorndyke, University Lutheran, and the church. In her third
       amended complaint, Farney invoked the Wrongful Death Act (740 ILCS 180/2 (West 2012))
       and the Survival Act (755 ILCS 5/27-6 (West 2012)), alleging as follows. On October 9, 2013,
       at 9:20 a.m., Geerdes was driving a motor vehicle in Peach Orchard, Illinois, when he
       negligently ran into a motor vehicle driven by Mullins, who suffered fatal injuries. At the time
       of the accident, Geerdes was talking on the phone with Thorndyke, in violation of section
       12-610.2 of the Illinois Vehicle Code (625 ILCS 5/12-610.2 (West 2012)). Thorndyke was the
       one who had made the phone call to Geerdes, and when telephoning Geerdes, he knew Geerdes
       was driving. Thus, Thorndyke negligently distracted Geerdes from the task of driving, causing
       the fatal accident. At the time of the phone call and the accident, Thorndyke was acting within
       the scope of his employment as an employee of the church, and Geerdes was acting within the
       scope of his employment as an employee of both the church and University Lutheran. Farney
       sought to hold the church and University Lutheran vicariously liable for the alleged negligence
       of their agents.

¶ 14                3. The Insurance Policy That Country Mutual Issued to Geerdes
¶ 15       Country Mutual had issued insurance policy No. A12A3355557 to Geerdes. This policy
       provided automobile liability coverage on a primary basis and had an effective policy period of
       July 3, 2013, to January 3, 2014.

                                                    -3-
¶ 16       The Country Mutual policy covered not only Geerdes but “anyone else” liable for his acts
       or omissions in the operation of an insured vehicle. Under the heading of “Persons Insured,”
       the policy provided:
                   “Under this Section of the policy, an insured is:
                      “1. With respect to an insured vehicle:
                          a. you and any resident of the same household as you;
                          b. anyone using an insured vehicle with your permission or the permission
                      of an adult relative;
                          c. anyone else, but only with respect to liability resulting from acts or
                      omissions of an insured as defined in a. or b. above.” (Emphases in original.)

¶ 17                                   4. Tendering the Defense
¶ 18       The church tendered the defense to Pekin. Pekin accepted the tender, but with reservations.
       Afterward, Pekin tendered the defense to Country Mutual, which accepted the tender without
       reservations.

¶ 19                      5. The Judicial Declarations That Pekin Sought in Its
                              Amended Complaint for Declaratory Judgment
¶ 20       Pekin’s amended complaint for declaratory judgment had three counts.
¶ 21   In count I, Pekin alleged that “Geerdes, who was operating his own motor vehicle, was not
       using his motor vehicle in connection with Church business.” Therefore, as to count I, Pekin
       requested a declaratory judgment that (1) “for the matters alleged in [case No. 13-L-14],” it
       was “not liable under its policy of insurance issued to [the church]” and (2) it was “not
       obligated to defend [the church] in [case No. 13-L-14].”
¶ 22       Count II sought a declaration only that Pekin lacked a duty to defend the church. Pekin
       alleged that, as an excess insurer, it was “not obligated to defend the Church as there [was]
       other insurance covering the same loss, namely, Geerdes’[s] personal automobile policy with
       Country Mutual, and Country Mutual ha[d] accepted the Church’s defense without
       reservation.” Therefore, as to count II, Pekin requested a declaratory judgment that because
       Pekin was an excess insurer rather than a primary insurer, and because Country Mutual, as the
       primary insurer, was defending the church without reservation, the “Other Insurance”
       provision of the policy exempted Pekin of any obligation to defend the church.
¶ 23       In the final count of the amended complaint for declaratory judgment, count III, Pekin
       alleged that the policy it had issued to the church included a provision for the reimbursement of
       defense costs if Pekin “ ‘initially defend[ed] an insured or [paid] for an insured’s defense but
       later determine[d] that the claim [was] not covered under this insurance.’ ” Therefore, as to
       count III, Pekin requested a declaratory judgment that the church had to “reimburse Pekin ***
       for all of the defense costs and other expenses incurred on *** behalf [of the church] in
       connection with [case No. 13-L-14].”
¶ 24       Also, in all three counts, Pekin alleged, “on information and belief,” that defendants
       disagreed with the positions Pekin took in its amended complaint. By Pekin’s understanding,
       defendants took the position “that the allegations contained in the action filed by Farney [were]
       covered under Pekin’s policy of insurance,” a position with which Pekin disagreed.
       Consequently, Pekin alleged, “an actual and justiciable controversy exist[ed] between the

                                                   -4-
       parties,” a controversy that “[might] be determined by a judgment or order of [the trial court].”

¶ 25                                 B. Defendants’ Motions to Dismiss
                            the Amended Complaint for Declaratory Judgment
¶ 26                                1. The Church’s Motion for Dismissal
¶ 27       Pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)),
       the church moved to dismiss, with prejudice, Pekin’s amended complaint for declaratory
       judgment.
¶ 28       The church argued that count I was legally insufficient because “[t]he allegations of the
       Farney complaint squarely [brought] the asserted claim under the scope of the coverage
       provided by [the church’s] policy, irrespective of any denials by [Pekin] herein or by [the
       church] in answer to the underlying complaint.” The church cited Maxum Indemnity Co. v.
       Gillette, 405 Ill. App. 3d 881, 885 (2010), and quoted Valley Forge Insurance Co. v. Swiderski
       Electronics, Inc., 359 Ill. App. 3d 872, 884 (2005), for the principle that, “[i]n determining
       whether an insurer ha[d] a duty to defend its insured in an underlying lawsuit, the court [had to]
       look to the allegations in the underlying complaint and compare those allegations to the
       relevant coverage provisions of the insurance policy.”
¶ 29       The church argued that, for two reasons, count II was legally insufficient:
                   “15. Firstly, if Country [Mutual] is defending this claim without a reservation of
               rights, there is no active dispute between Pekin and [the church]. Pekin is only seeking
               an advisory ruling from this Court to the effect that, ‘should Country [Mutual] not
               defend [the church] in the Farney claim, Pekin would still not be obligated to defend
               the claim.’ This Court cannot and should not issue an advisory opinion on an unripe
               claim. ***
                   16. Secondly, Country [Mutual] has accepted the tender and is defending [the
               church] in the underlying action, but the indemnity limit on the Country
               [Mutual]/Geerdes policy is only $100,000.00. On information and belief, Country
               [Mutual] has tendered that limit to Farney. Farney has not yet accepted the tender as
               doing so without releasing or waiving a cause of action against the remaining
               defendants would require additional efforts not yet accomplished.
                   17. It is anticipated, however[,] that once [Country Mutual’s] limit has been
               exhausted, it will have no remaining obligation or intention to defend [the church]. At
               that time, Pekin’s complaint may again become ripe for consideration by the Court.
               But, Pekin’s defense to coverage will be no more tenable than this frivolous claim is
               now. Therefore dismissal with prejudice is appropriate.”
       (Pekin points out that, actually, Geerdes’s policy says: “ ‘[Country Mutual’s] duty to settle or
       defend ends when the limits of liability stated on the declarations page have been exhausted by
       payment of any judgment or settlement.’ ” (Emphasis in original.) Thus, Pekin explains,
       Country Mutual’s voluntary payment of $100,000—the mere exhaustion of the policy
       limit—actually would not end Country Mutual’s duty to defend its insureds; the payment
       would have to be pursuant to a judgment or settlement. See Conway v. Country Casualty
       Insurance Co., 92 Ill. 2d 388, 395 (1982); Douglas v. Allied American Insurance, 312 Ill. App.
       3d 535, 542 (2000). This is because the duty to defend and the duty to indemnify are separate
       and distinct, the former duty being broader than the latter. Conway, 92 Ill. 2d at 394. “[S]ince

                                                   -5-
       the insurer’s duty to defend its insured is not dependent upon a duty to indemnify, but arises
       from the undertaking to defend stated in the policy, an insurer’s payment to its policy limits,
       without more, does not excuse it from its duty to defend.” Id.)

¶ 30                                 2. Farney’s Motion for Dismissal
¶ 31       Farney likewise moved to dismiss the amended complaint for declaratory judgment on the
       ground that it failed to state a cause of action. See 735 ILCS 5/2-615 (West 2014). In her
       motion, Farney pointed out that, under the supreme court’s decision in United States Fidelity &
       Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73 (1991), an insurer’s duty to defend the
       insured depended solely on a comparison of the underlying complaint with the insurance
       policy. The supreme court said:
               “If the underlying complaints allege facts within or potentially within policy coverage,
               the insurer is obliged to defend its insured even if the allegations are groundless, false,
               or fraudulent. [Citation.] An insurer may not justifiably refuse to defend an action
               against its insured unless it is clear from the face of the underlying complaints that the
               allegations fail to state facts which bring the case within, or potentially within, the
               policy’s coverage. [Citation.]” (Emphases in original.) Id.
¶ 32       Farney argued that, far from being clear, from the face of the underlying complaint, that her
       claim was outside the coverage of the policy Pekin had issued to the church, her claim clearly
       was within the business liability coverage of that policy, for Geerdes allegedly was driving his
       car on church business at the time of the accident. The underlying complaint in case No.
       13-L-14 (more precisely, the third amended complaint) alleged that Mullins’s death had
       resulted from the negligent operation of a motor vehicle by Geerdes while he was employed by
       the church and while he was acting within the scope of that employment. Specifically, the third
       amended complaint alleged that, at the time of the accident, Geerdes was substantially within
       the authorized time and space limits of his employment, he was serving the interests of the
       church, and the church directly supervised and controlled him. The policy issued by Pekin
       applied to bodily injury arising from the church’s use (that is to say, its agent’s use) of a
       non-owned automobile in the church’s business.
¶ 33       But what about the “Other Insurance” provision of the church’s insurance policy, the
       provision that Pekin invoked in count II of its amended complaint for declaratory judgment?
       Farney asserted:
                    “The Pekin Insurance policy provision ‘Other Insurance’ does not remove Hope
               Farney’s Complaint from inside the borders of the Pekin Insurance policy coverage.
               Further, the ‘Other Insurance’ provision does not relieve Pekin *** from their
               obligation to defend [the] [c]hurch as the allegations of the Complaint remain clearly
               within the insurance policy coverage. Pekin *** fails to demonstrate why coverage
               does not apply or their duty to defend is relieved based on this provision. The ‘Other
               Insurance’ provision has no bearing as to whether the Pekin Insurance policy applies or
               whether Pekin *** must defend [the] [c]hurch, which are the questions that must be
               answered by [Y]our Honor. Because the ‘Other Insurance’ provision does not affect the
               applicability of coverage or the duty to defend, Plaintiff’s Amended Complaint for
               Declaratory Judgment is substantially insufficient at law and must be dismissed with
               prejudice.”


                                                    -6-
¶ 34                          3. Pekin’s Response to the Motions for Dismissal
¶ 35       In its response to the motions for dismissal, Pekin conceded that, “ordinarily,” when
       deciding whether an insurer had a duty to defend its insured, a court should confine itself to
       comparing the allegations of the underlying complaint with the provisions of the insurance
       policy. Pekin noted, however, that, “under certain circumstances,” a court might “look beyond
       the underlying complaint” when determining an insurer’s duty to defend. In this respect, Pekin
       quoted the supreme court:
                “ ‘[I]f an insurer opts to file a declaratory proceeding, we believe that it may properly
                challenge the existence of such a duty by offering evidence to prove that the insured’s
                actions fell within the limitations of one of the policy’s exclusions. [Citations.] The
                only time such evidence should not be permitted is when it tends to determine an issue
                crucial to the determination of the underlying lawsuit [citations] ***. If a crucial issue
                will not be determined, we see no reason why the party seeking a declaration of rights
                should not have the prerogative to present evidence that is accorded generally to a party
                during a motion for summary judgment in a declaratory proceeding. To require the
                trial court to look solely to the complaint in the underlying action to determine
                coverage would make the declaratory proceeding little more than a useless exercise
                possessing no attendant benefit and would greatly diminish a declaratory action’s
                purpose of settling and fixing the rights of the parties.’ ” (Emphasis in original.) Pekin
                Insurance Co. v. Wilson, 237 Ill. 2d 446, 461 (2010) (quoting Fidelity & Casualty Co.
                of New York v. Envirodyne Engineers, Inc., 122 Ill. App. 3d 301, 304-05 (1983)).
¶ 36       On the authority of that passage from Wilson, Pekin requested the trial court to look beyond
       Farney’s complaint and consider deposition testimony by Geerdes that, at the time of the
       accident, he was not using his personal automobile for church business but, instead, was en
       route to his other job, his job with University Lutheran. Pekin argued that the consideration of
       this testimony would be perfectly consistent with Wilson because “a jury could find that
       Geerdes was acting as the Church’s agent or employee while talking on the phone without
       finding that Geerdes was using his vehicle in connection with Church business.” (Emphases in
       original.) Thus, by Pekin’s reasoning, “[a] finding in this action that Geerdes was not using his
       vehicle in the Church’s business when he struck Mullins [would] not collaterally impact
       Farney’s respondeat superior claim.”
¶ 37       But if the trial court was concerned that the judicial declarations Pekin sought in count I
       would collaterally estop Farney in her tort case, Pekin requested, as an alternative, the
       declaration it sought in count II: that the “Other Insurance” provision, together with Country
       Mutual’s unreserved assumption of the defense, negated Pekin’s duty to defend the church. If
       the trial court “rule[d] in Pekin’s favor as to [c]ount II, Pekin [would] dismiss [c]ount I without
       prejudice and with leave to replead.” As far as Pekin was concerned, the relief in count II
       would suffice for the time being.
¶ 38       Pekin disagreed with the church that count II was moot, considering that the church had
       tendered the defense to Pekin and had communicated to Pekin no formal withdrawal of the
       tender. Pekin argued: “Since the Church has not withdrawn its tender of defense from Pekin,
       there is a live controversy whether Pekin has a current duty or obligation to defend the Church
       in the Farney action.”
¶ 39       The other defendant in the declaratory judgment action, Farney, did not regard this
       question as moot; she maintained that, despite the “Other Insurance” provision and Country

                                                    -7-
       Mutual’s acceptance, without reservation, of Pekin’s tender of the defense, Pekin still had a
       duty to defend the church.

¶ 40                   4. The Trial Court’s Ruling on the Motions for Dismissal
¶ 41      On May 19, 2015, the trial court granted defendants’ motions to dismiss Pekin’s amended
       complaint for declaratory judgment, but the court did so “without prejudice.”

¶ 42                              C. Pekin’s Motion for Reconsideration
¶ 43                                  1. The Arguments Pekin Made
¶ 44       Pekin moved for reconsideration of the dismissal of its amended complaint for declaratory
       judgment. Pekin argued it had pleaded the three elements of an action for declaratory
       judgment—(1) a plaintiff with a tangible legal interest, (2) a defendant with an opposing
       interest, and (3) an actual controversy between the parties concerning these interests
       (Beahringer v. Page, 204 Ill. 2d 363, 372 (2003))—and that, instead of challenging the legal
       sufficiency of the amended complaint for declaratory judgment, defendants had gone beyond
       the scope of a section 2-615 motion by challenging the merits of the amended complaint, at
       least when it came to count I. In Pekin’s view, the trial court had erroneously accepted
       defendants’ invitation to consider the merits of count I instead of evaluating its legal
       sufficiency.
¶ 45       As for count II of the amended complaint, Pekin disagreed it was moot. Pekin argued:
               “To the contrary, the very fact that Country Mutual undertook to defend the Church is
               exactly what makes the Count ripe for adjudication, that is, another insurer has
               admitted that it owes a duty to defend the Church, and the Pekin policy provides in that
               scenario, Pekin has no duty to defend. At the very least, Pekin sufficiently pled facts
               establishing that an actual controversy exists between Pekin, which claims it has no
               duty to defend based on the other insurance provisions, and the Defendants, who claim
               that Pekin owes a duty to defend the Church in the Farney action.”

¶ 46                                   2. The Church’s Response to
                                    Pekin’s Motion for Reconsideration
¶ 47       The church filed a memorandum in opposition to Pekin’s motion for reconsideration. In its
       discussion of count I, the church did not specifically respond to Pekin’s quotation from Wilson;
       the church merely continued to insist “the law [was] crystal clear” that, “in determining
       whether an insurer has a duty to defend its insured in an underlying lawsuit, the court must look
       to the allegations in the underlying complaint and compare those allegations to the relevant
       coverage provisions of the insurance policy.”
¶ 48       The church also continued to insist that count II was moot. The church said:
               “If Country [Mutual] is defending this claim without a reservation of rights, as is
               alleged, there is no active dispute between Pekin and [the church]. Pekin is only
               seeking an advisory ruling from this Court to the effect that, ‘should Country [Mutual]
               not defend [the church] in the Farney claim, Pekin would still not be obligated to
               defend the claim.’ This Court was correct in ruling that it cannot and should not issue
               an advisory opinion on an unripe claim.”


                                                   -8-
¶ 49                                     3. Farney’s Response to
                                   Pekin’s Motion for Reconsideration
¶ 50       In her response to Pekin’s motion for reconsideration, Farney disputed that she had sought
       a ruling on the merits of Pekin’s amended complaint. She argued, rather, it was Pekin that had
       transgressed the bounds of procedural propriety by offering extrinsic evidence (Geerdes’s
       deposition) in opposition to her section 2-615 motion. She also pointed out that Beahringer
       was not new case law and that Pekin could have cited that case earlier instead of waiting until
       its motion for reconsideration to do so.

¶ 51                                 4. The Trial Court’s Ruling
¶ 52      On August 18, 2015, the trial court denied Pekin’s motion for reconsideration.

¶ 53                            D. Pekin’s Motion for Permission To File
                        a Second Amended Complaint for Declaratory Judgment
¶ 54       After the denial of its motion for reconsideration, Pekin moved for permission to file a
       second amended complaint for declaratory judgment “and also [to] immediately stay the
       declaratory [judgment action], pending resolution of the underlying action.” The proposed
       second amended complaint would have added the following allegation: “On May 14, 2014,
       Geerdes testified that he was driving to his other job in Normal, Illinois[,] when the alleged
       accident occurred.” A copy of Geerdes’s deposition transcript was attached as an exhibit.
       Otherwise, the proposed second amended complaint mirrored the (now dismissed) amended
       complaint.
¶ 55       Defendants opposed Pekin’s motion for permission to file a second amended complaint,
       and in doing so, they moved for sanctions against Pekin pursuant to Illinois Supreme Court
       Rule 137 (eff. July 1, 2013).
¶ 56       On November 6, 2015, the trial court denied Pekin’s motion for permission to file a second
       amended complaint, this time “with prejudice.” At the same time, the court denied defendants’
       motions for sanctions.
¶ 57       Pekin appealed 14 days later.

¶ 58                                             II. ANALYSIS
¶ 59                       A. The Three Counts of Pekin’s Amended Complaint
                              for Declaratory Judgment, Taken One at a Time
¶ 60                                                 1. Count I
¶ 61        To survive a motion for dismissal pursuant to section 2-615, the complaint, when
       interpreted in the light most favorable to the plaintiff, must set forth facts which, taken as true,
       legally entitle the plaintiff to the relief requested in the complaint. DeHart v. DeHart, 2013 IL
       114137, ¶ 18. The motion points out defects that are apparent on the face of the complaint and
       that stand in the way of granting the requested relief. Urbaitis v. Commonwealth Edison, 143
       Ill. 2d 458, 475 (1991).
¶ 62        Defendants argue a defect is apparent on the face of count I of Pekin’s amended complaint
       for declaratory judgment: a violation of the eight-corners rule. We decide de novo whether they
       are correct. See City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 364 (2004).


                                                    -9-
¶ 63       Ordinarily, in a declaratory judgment action on an insurer’s duty to defend the insured,
       courts follow the eight-corners rule, comparing the four corners of the underlying complaint
       with the four corners of the insurance contract. Country Mutual Insurance Co. v. Dahms, 2016
       IL App (1st) 141392, ¶ 37. “[A] court ordinarily looks first to the allegations in the underlying
       complaint and compares those allegations to the relevant provisions of the insurance policy,”
       and “[i]f the facts alleged in the underlying complaint fall within, or potentially within, the
       policy’s coverage, the insurer’s duty to defend is triggered.” (Emphasis in original and internal
       quotation marks omitted.) Id.
¶ 64       We say “ordinarily” because there is an exception to the eight-corners rule: in deciding
       whether the insurer has a contractual duty to defend the insured, the court may consider factual
       matters external to the underlying complaint and the insurance policy “as long as [these factual
       matters] do not bear upon issues in the underlying litigation” (Millers Mutual Insurance Ass’n
       of Illinois v. Ainsworth Seed Co., 194 Ill. App. 3d 888, 889 (1989)) or “impact upon the
       underlying plaintiff’s ability to pursue a theory of liability” (Fremont Compensation Insurance
       Co. v. Ace-Chicago Great Dane Corp., 304 Ill. App. 3d 734, 743 (1999)). Thus, the
       eight-corners rule bars extrinsic evidence only if, as a result of the proposed declaratory
       judgment, the plaintiff in the underlying lawsuit could be hampered by collateral estoppel.
       Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 197 (1976). Otherwise, extrinsic evidence is
       admissible on the question of the insurer’s duty to defend the insured. “[T]he only time such
       [extrinsic] evidence should not be permitted is when it tends to determine an issue crucial to
       the *** underlying lawsuit” (internal quotation marks omitted) (Wilson, 237 Ill. 2d at 461), in
       which case the requested factual determination is regarded as “premature” (internal quotation
       marks omitted) (Peppers, 64 Ill. 2d at 197).
¶ 65       In its brief, Pekin admits: “[C]onsideration of Geerdes’[s] deposition testimony may tend
       to determine a factual issue crucial to the underlying lawsuit, namely, whether at the time of
       the accident, Geerdes was on Church business.” We see the same problem. If Farney wanted to
       argue, in her tort case, that the church was vicariously liable because, at the time Geerdes ran
       into Mullins, he was driving his car on church business, Farney would find herself collaterally
       estopped by the declaratory judgment requested in count I of Pekin’s amended complaint. See
       Mabie v. Village of Schaumburg, 364 Ill. App. 3d 756, 758 (2006) (“In order to apply collateral
       estoppel, (1) the issue decided in the prior adjudication must be identical to the issue in the
       current action; (2) the party against whom estoppel is asserted must have been a party or in
       privity with a party in the prior action; and (3) the prior adjudication must have resulted in a
       final judgment on the merits.”).
¶ 66       Nevertheless, on the authority of TIG Insurance Co. v. Canel, 389 Ill. App. 3d 366 (2009),
       Pekin maintains that count I states a cause of action, “even if it would require a premature
       factual determination of a crucial issue in the Farney litigation,” and “the proper procedural
       move here was not to dismiss Pekin’s complaint altogether, but instead, allow Pekin to amend
       its Complaint and stay Count I pending resolution of the underlying action,” an option that
       Pekin suggested to the trial court in the hearing on Pekin’s motion to file a second amended
       complaint for declaratory judgment.
¶ 67       TIG is distinguishable, however, because in TIG, the plaintiff in the underlying action
       moved for a stay, not the insurer. The plaintiff in the underlying action filed a motion either to
       dismiss the insurer’s declaratory judgment complaint as premature or to stay the declaratory
       judgment action. Id. at 369. Thus, the plaintiff in the underlying action was willing to live with

                                                   - 10 -
       the prematurity, and therefore the legal insufficiency (see Beahringer, 204 Ill. 2d at 374-75), of
       the declaratory judgment complaint if the trial court stayed the declaratory judgment action
       until it ripened, that is, until resolution of the underlying action. The insured, the defendant in
       the underlying action, appealed the stay (TIG, 389 Ill. App. 3d at 367), and the appellate court
       found no abuse of discretion in staying the declaratory judgment action until the underlying
       action was resolved (id. at 375).
¶ 68       In the present case, by contrast, the church and Farney never intimated they were willing to
       live with the prematurity (and, therefore, the legal insufficiency) of count I until the underlying
       action was resolved. They moved for dismissal on the ground of failure to state a cause of
       action—period. If dismissal was justified on that ground, they were entitled to a dismissal.
       They were entitled to a correct ruling that was responsive to their motion.
¶ 69       Another way TIG is distinguishable is its procedural posture. Just because the appellate
       court, in TIG, found no abuse of discretion in the granting of the stay, it does not logically
       follow that denying the stay would have been an abuse of discretion, either. The standard of
       “abuse of discretion” is the most deferential standard of review recognized by the law; a
       decision will be deemed an abuse of discretion only if the decision is “unreasonable and
       arbitrary or where no reasonable person would take the view adopted by the circuit court.”
       Gulino v. Zurawski, 2015 IL App (1st) 131587, ¶ 64. There could be two opposing but
       reasonable answers to the same question. When presented with a motion for dismissal on the
       ground of legal insufficiency, a trial court could reasonably decide it does not want an unripe
       declaratory judgment action sitting on its docket. After all, an unripe declaratory judgment
       action lacks an essential element of the cause of action, namely, an actual controversy
       (Underground Contractors Ass’n v. City of Chicago, 66 Ill. 2d 371, 375 (1977) (a controversy
       is “actual” only if “the underlying facts and issues of the case are not moot or premature”
       (emphasis added)), and a complaint lacking even a single element is a legally insufficient
       complaint, subject to dismissal under section 2-615 (Misselhorn v. Doyle, 257 Ill. App. 3d 983,
       986 (1994); Black’s Law Dictionary 538 (7th ed. 1999) (defining “element” as “[a] constituent
       part of a claim that must be proved for the claim to succeed”)). If a count is legally insufficient,
       we cannot fault the trial court for dismissing it on defendants’ motion. Because we agree with
       the trial court that count I fails to state a cause of action for declaratory
       judgment—specifically, count I fails to show the controversy is ripe (as Pekin seems to
       admit)—we affirm the dismissal of that count, and we find no abuse of discretion in the denial
       of Pekin’s request for a stay.

¶ 70                                            2. Count II
¶ 71       Count II seeks a judicial declaration that, under the “Other Insurance” provision, Pekin has
       no duty to defend the church in case No. 13-L-14 because Pekin is an excess insurer rather than
       a primary insurer and because the primary insurer, Country Mutual, has accepted without
       reservation the tender of the defense. The church insists that count II is moot because the
       church agrees with Pekin that while Country Mutual defends the church, Pekin has no
       contractual duty to do so. On appeal, Pekin seems to be asking us to second-guess the church
       when the church, all but pounding the table, says over and over again it agrees with Pekin in
       this regard.
¶ 72       If the church says it agrees, it agrees, and that is that. As between Pekin and the church,
       count II presents no “justiciable [matter],” a constitutional prerequisite of the trial court’s

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       subject-matter jurisdiction. Ill. Const. 1970, art. VI, § 9; see Belleville Toyota, Inc. v. Toyota
       Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 335 (2002) (defining “a ‘justiciable matter’ ” as “a
       controversy appropriate for review by the court, in that it is definite and concrete, as opposed to
       hypothetical or moot, touching upon the legal relations of parties having adverse legal
       interests” (emphasis added)); In re Marriage of Peters-Farrell, 216 Ill. 2d 287, 291 (2005)
       (“An appeal is moot if no actual controversy exists ***.”).
¶ 73       Farney is a little more difficult to read. On the one hand, she says: “The allegations
       contained in Farney’s complaint are clearly within the insurance policy coverage[,] and the
       ‘Other Insurance’ provision does not relieve Pekin from their obligation to defend the
       Church.” On the other hand, beginning with the next sentence of her brief, she says:
               “[S]ince the Church (through Pekin) tendered the defense to Country Mutual, there was
               no ripe controversy between Pekin and the Church for the court to entertain. ***
               [B]ecause Country Mutual had undertaken the defense of the Church, any controversy
               between Pekin and the Church is moot. Pekin’s attempt to tack on this theory to their
               already legally insufficient first count must fail. ***
                   *** [B]ecause Country Mutual undertook the Church’s defense, Pekin’s attempt to
               argue there is not duty to defend because of Country’s tender is premature as there is no
               actual or ripe controversy between Pekin and the Church, and the circuit court
               appropriately dismissed Count II of Pekin’s Amended Complaint for Declaratory
               Judgment.”
       Farney seems to be arguing that, given the allegations of her third amended complaint in case
       No. 13-L-14, Pekin has a contractual duty to defend the church but that because Country
       Mutual has undertaken the defense of the church, Pekin’s performance of its contractual duty
       has not yet fallen due (and, possibly, never will fall due). This seems a roundabout way of
       saying she agrees with Pekin’s position, in count II, that as long as Country Mutual is
       defending the church, Pekin need not do so.
¶ 74       Ultimately, then, it seems that Farney, like the church, regards count II as moot, or as
       presenting no “actual controversy.” Id. Therefore, as to count II of Pekin’s amended complaint
       for declaratory judgment, we dismiss this appeal as moot. See La Salle National Bank v. City of
       Chicago, 3 Ill. 2d 375, 379 (1954) (“Since the existence of a real controversy is an essential
       requisite to appellate jurisdiction, the general rule is that where a reviewing court has notice of
       facts which show that only moot questions or mere abstract propositions are involved, it will
       dismiss the appeal *** even though such facts do not appear in the record.”).

¶ 75                                            3. Count III
¶ 76       In its brief, Pekin makes no argument regarding count III of its amended complaint for
       declaratory judgment. Therefore, pursuant to the doctrine of procedural forfeiture, we uphold
       the dismissal of that count. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016) (“Points not argued
       are [forfeited] ***.”).

¶ 77                                 B. Denial of Permission to File
                  the Proposed Second Amended Complaint for Declaratory Judgment
¶ 78      A trial court has broad discretion when deciding whether to allow an amendment to a
       complaint, and we will defer to its decision unless we find an abuse of discretion (Charleston v.

                                                   - 12 -
       Larson, 297 Ill. App. 3d 540, 555 (1998)) or, in other words, unless we find the court’s
       decision to be arbitrary or unreasonable (Gulino, 2015 IL App (1st) 131587, ¶ 64). The court
       already had allowed Pekin to amend its complaint, and the latest proposed amendment, the
       second amended complaint, would not have cured a defect in the amended complaint.
       Therefore, we find no abuse of discretion in the denial of permission to file the second
       amended complaint. See Charleston, 297 Ill. App. 3d at 555. “[I]f the proposed [amendment]
       made no substantial change in the complaint previously held bad, the court had a right to reject
       an attempt to re-litigate the same points already decided, and this is a sufficient basis, in and of
       itself, to affirm the trial court’s rejection of the proposed amendment.” (Internal quotation
       marks omitted.) Beane v. Millers Mutual Insurance Ass’n of Alton, 90 Ill. App. 3d 258, 260
       (1980).
¶ 79       The proposed second amended complaint was identical to the amended complaint except
       for one additional allegation: Geerdes himself testified he was driving to his other job, in
       Normal, Illinois, at the time of the accident. As Pekin admits in its brief, “consideration of
       Geerdes’[s] deposition testimony may tend to determine a factual issue crucial to the
       underlying lawsuit, namely, whether at the time of the accident, Geerdes was on Church
       business.” Thus, all the proposed second amended complaint did was enhance or elaborate the
       defect in count I of the amended complaint. See Fremont Compensation, 304 Ill. App. 3d at
       743; Millers Mutual, 194 Ill. App. 3d at 889.

¶ 80                   C. Dismissal With Prejudice, as Opposed to Without Prejudice
¶ 81        In its petition for rehearing, Pekin argues that the dismissal of its amended complaint for
       declaratory judgment should have been without prejudice instead of with prejudice. Pekin
       argues that “[i]f a declaratory judgment is premature because it would decide an ultimate issue
       of fact in the underlying litigation, the proper resolution is a stay or dismissal without
       prejudice.” In support of that argument, Pekin cites State Farm Fire & Casualty Co. v. Shelton,
       176 Ill. App. 3d 858, 868 (1988), Batteast v. Argonaut Insurance Co., 118 Ill. App. 3d 4, 7
       (1983), and Grinnell Mutual Reinsurance Co. v. Frierdich, 79 Ill. App. 3d 1146, 1150 (1979).
¶ 82        On the other hand, in Schwanke, Schwanke & Associates v. Martin, 241 Ill. App. 3d 738,
       739 (1992), the trial court dismissed a declaratory-judgment complaint with prejudice on the
       ground that it was premature, and the appellate court affirmed the judgment (id. at 752). In
       Schwanke, the director of the Department of Labor notified the plaintiff of his “intention to
       initiate a debarment hearing” to debar the plaintiff from bidding and receiving any public-work
       contracts, accusing the plaintiff of violating the Prevailing Wage Act (Ill. Rev. Stat. 1991, ch.
       48, ¶¶ 39s-1 through 39s-12). Schwanke, 241 Ill. App. 3d at 739. Before such an administrative
       hearing occurred, and before the plaintiff was placed on the debarment list (id. at 747), the
       plaintiff filed a complaint against the director, seeking a declaratory judgment that the plaintiff
       had not been violating the Prevailing Wage Act (id. at 739). The appellate court agreed with
       the trial court that the declaratory-judgment complaint was premature. The complaint had to
       “state facts sufficient to show ripeness.” Because the complaint “failed to allege or establish
       the existence of an actual controversy ripe for judicial determination,” “[t]he trial court
       properly dismissed the complaint as being premature” (id. at 748) and, again, the dismissal was
       with prejudice (id. at 739). Initially, as in the present case, the trial court dismissed the
       complaint without prejudice, but the court changed its mind and made the dismissal with
       prejudice. Id. at 752. Commenting on this earlier dismissal, the appellate court had reservations

                                                    - 13 -
       that the prematurity of a declaratory-judgment action entitled the plaintiff to a dismissal
       without prejudice:
                    “Finally, and parenthetically, we note that although the trial court dismissed
                plaintiff’s complaint as premature, the initial order of dismissal was without prejudice
                and with leave for plaintiff to move for a stay in the event of an adverse decision, i.e.,
                debarment, by the Department. We question the propriety of such an order in view of
                the fact that plaintiff’s complaint did not present a justiciable controversy in the first
                instance, and that plaintiff would still be required to exhaust its administrative review
                remedies prior to being entitled to judicial review.” Id.
¶ 83        So, if a declaratory-judgment action by an insurer is premature or unripe in that it would
       decide an important issue of fact in the underlying litigation, what is the correct disposition:
       dismissal with prejudice (see id.) or dismissal without prejudice (see Shelton, 176 Ill. App. 3d
       at 868; Batteast, 118 Ill. App. 3d at 7; Grinnell, 79 Ill. App. 3d at 1150)?
¶ 84        In answering that question, we begin with the legal significance of the phrase “with
       prejudice.” A dismissal with prejudice amounts to an adjudication on the merits, and such an
       adjudication can be res judicata in a subsequent action. McGann v. Illinois Hospital Ass’n, 172
       Ill. App. 3d 560, 569 (1988). Res judicata does not apply, however, to a subsequent action if
       the subsequent action is “based on different operative facts” than the previous action. Regan v.
       Ivanelli, 246 Ill. App. 3d 798, 807-08 (1993); see also Rock River Water Reclamation District
       v. The Sanctuary Condominiums of Rock Cut, 2014 IL App (2d) 130813, ¶ 48; O’Connor v.
       Greer, 55 Ill. App. 3d 253, 261 (1977). It follows that if a court dismisses a declaratory-
       judgment complaint as unripe and designates the dismissal as “without prejudice” for the sake
       of preserving the plaintiff’s right to later bring a declaratory-judgment action that is ripe, the
       court labors under a misconception. The dismissal of a declaratory-judgment complaint with
       prejudice, on the ground of unripeness, would not bar the plaintiff from later bringing a
       declaratory-judgment action that has since become ripe. Res judicata would be inapplicable
       because the complaint in the subsequent declaratory-judgment action would allege facts that
       the complaint in the previous declaratory-judgment action did not and could not have alleged,
       namely, facts establishing that the declaratory-judgment action now is ripe. See Schwanke, 241
       Ill. App. 3d at 748 (“If the complaint does not state facts sufficient to show ripeness, dismissal
       is proper.”). From one action to the other, there would be “different sets of operative
       facts”—and hence no res judicata. Rock River, 2014 IL App (2d) 130813, ¶ 48.
¶ 85        Therefore, we agree with Schwanke and disagree with Shelton, Batteast, and Grinnell.
       Unless, in response to a motion for dismissal on the ground of unripeness, the plaintiff in a
       declaratory-judgment action can demonstrate a present ability to allege facts establishing
       ripeness, the dismissal should be with prejudice. See Schwanke, 241 Ill. App. 3d at 752.
       Accordingly, we deny Pekin’s petition for reconsideration.

¶ 86                      D. The Church’s Motion for Sanctions Against Pekin
¶ 87                                  1. Alleged Frivolity in Count I
¶ 88      The church moves that we impose sanctions on Pekin pursuant to Illinois Supreme Court
       Rule 375(b) (eff. Feb. 1, 1994), which provides, in its first paragraph:
              “If, after consideration of an appeal or other action pursued in a reviewing court, it is
              determined that the appeal or other action itself is frivolous, or that an appeal or other


                                                   - 14 -
                action was not taken in good faith, for an improper purpose, such as to harass or to
                cause unnecessary delay or needless increase in the cost of litigation, or the manner of
                prosecuting or defending the appeal or other action is for such purpose, an appropriate
                sanction may be imposed upon any party or the attorney or attorneys of the party or
                parties. An appeal or other action will be deemed frivolous where it is not reasonably
                well grounded in fact and not warranted by existing law or a good-faith argument for
                the extension, modification, or reversal of existing law. An appeal or other action will
                be deemed to have been taken or prosecuted for an improper purpose where the
                primary purpose of the appeal or other action is to delay, harass, or cause needless
                expense.”
¶ 89       The church argues: “[W]ithout any basis under the facts or law, Pekin has taken the
       frivolous position that by denying that Geerdes was actually acting within the scope of his
       employment at the time of the accident (irrespective of the complaint’s allegations), it is
       entitled to deny coverage for defense of the claim.” (Emphasis in original.)
¶ 90       Is it really impossible, though, for Pekin to find a foothold from which to plausibly argue
       the exception to the eight-corners rule? Consider the precise wording of this passage from
       Envirodyne Engineers, which the supreme court quoted with approval in Wilson:
                “ ‘[W]e find no support for Envirodyne’s contention that the court may not look
                beyond the underlying complaint even in a declaratory proceeding where the duty to
                defend is at issue. ***. *** [I]f an insurer opts to file a declaratory proceeding, we
                believe that it may properly challenge the existence of such a duty by offering evidence
                to prove that the insured’s actions fell within the limitations of one of the policy’s
                exclusions. [Citations.] The only time such evidence should not be permitted is when it
                tends to determine an issue crucial to the determination of the underlying lawsuit
                ***.’ ” (Emphasis added.) Wilson, 237 Ill. 2d at 461 (quoting Envirodyne Engineers,
                122 Ill. App. 3d at 304-05).
¶ 91       In formal contexts, “crucial” means “decisive or critical.” The New Oxford American
       Dictionary 410 (2001). Whether Geerdes, at the time of the accident, was using his car for
       church business is important to the determination of the church’s vicarious liability, but
       arguably, it is not decisive or critical to the determination of the church’s vicarious liability.
       The argument could be made, and Pekin does argue, that even if Geerdes was not using his car
       for church business, the church still could be held vicariously liable if Geerdes—having been
       encouraged by the church’s other agent, Thorndyke, to violate section 12-610.2 of the Illinois
       Vehicle Code (625 ILCS 5/12-610.2 (West 2012))—used his cell phone for church business
       and consequently, to Mullins’s detriment, let his attention wander from the road.
¶ 92       Ultimately, we are unconvinced by that argument. We conclude that the bar to extrinsic
       evidence reaches further than indispensable facts. The test is not whether the evidence
       determines a crucial issue but whether the evidence “tends” to do so (internal quotation marks
       omitted) (Wilson, 237 Ill. 2d at 461), and cases from the appellate court bar evidence that
       “bear[s] upon issues in the underlying litigation” (Millers Mutual, 194 Ill. App. 3d at 889) or
       “impact[s] upon the underlying plaintiff’s ability to pursue a theory of liability” (Fremont
       Compensation, 304 Ill. App. 3d at 743). The supreme court wants to save the plaintiff in the
       underlying lawsuit from being hampered by the collateral-estoppel effect of the declaratory
       judgment. Peppers, 64 Ill. 2d at 197.


                                                   - 15 -
¶ 93       In Pekin’s defense, the declaratory judgment could be hampering in different degrees: it
       could be hampering when it comes to “ultimate facts” (the term that Peppers and Envirodyne
       Engineers use (Peppers, 64 Ill. 2d at 197; Envirodyne Engineers, 122 Ill. App. 3d at 306)), or it
       could be hampering when it comes to either-or facts that are not “ultimate” but are nevertheless
       important and could potentially be decisive in the underlying lawsuit, depending on what other
       factual findings the jury makes. See Black’s Law Dictionary 612 (7th ed. 1999) (defining
       “ultimate fact” as “[a] fact essential to the claim or the defense” (emphasis added)). Millers
       Mutual and Fremont Compensation bar evidence of important facts, not just ultimate facts.
       Millers Mutual, 194 Ill. App. 3d at 889; Fremont Compensation, 304 Ill. App. 3d at 743.
       Nevertheless, “a reasonable, prudent attorney[,] acting in good faith” (Penn v. Gerig, 334 Ill.
       App. 3d 345, 357 (2002)) could perceive this thin fissure in the language of Wilson, Peppers,
       and Envirodyne Engineers—this reference to “ultimate facts” or “crucial” issues—and try to
       pry it apart. Thus, count I of the amended complaint for declaratory judgment has a reasonable
       enough basis in the language of case law that we are unwilling to sanction Pekin for count I.
       See Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994).

¶ 94                                2. The Alleged Frivolity of Count II
¶ 95       The church further argues in its motion for sanctions: “Pekin tacked onto its frivolous
       complaint a second theory that on its face failed to present an actual and ripe controversy
       between the parties. The trial court properly dismissed the complaint with prejudice. On this
       point, Pekin again offers no existing law that supports its appeal and no good-faith argument
       for the extension, modification, or reversal of existing law.”
¶ 96       The church must be referring to count II of the amended complaint for declaratory
       judgment, in which Pekin seeks a declaration that, under the “Other Insurance” provision of
       the insurance policy it issued to the church, Pekin has no duty to defend the church in Farney’s
       lawsuit while the primary insurer, Country Mutual, is undertaking the defense. As we have
       already discussed, we agree that the parties have no actual controversy as to count II.
¶ 97       Even so, three things could be said in favor of count II. First, in the proceedings below,
       Farney took a hard line, insisting that, despite the “Other Insurance” provision and Country
       Mutual’s assumption of the defense, Pekin had a duty to defend the church (she seems to have
       moderated her position on appeal). Second, Pekin pointed out to the trial court that the church
       never sent Pekin a formal withdrawal of the tender of defense. Third, the church, like Farney, is
       capable of sending mixed signals: in paragraph 9 of its motion for sanctions, the church says:
       “Pekin had no good faith basis under the law to deny defense of the Farney claim.” How could
       Pekin lack such a good-faith basis if, as the church maintains, count II presents no actual
       controversy? We decline to sanction Pekin for count II.

¶ 98                                         3. Count III
¶ 99      It does not appear that, in its motion for sanctions, the church makes any argument
       specifically pertaining to count III of the amended complaint for declaratory judgment.
       Therefore, for the reasons we have discussed in connection with count I and II, we deny the
       church’s motion for sanctions pursuant to Rule 375(b).




                                                  - 16 -
¶ 100                                    III. CONCLUSION
¶ 101      We dismiss this appeal as to count II of Pekin’s amended complaint for declaratory
        judgment, and we otherwise affirm the trial court’s judgment.

¶ 102      Appeal dismissed in part and affirmed in part.




                                                 - 17 -
