Manolachi v. Costea

2026 IL App (1st) 240524-U

• Court: Appellate Court of Illinois
• Decided: March 23, 2026
• Docket: 1-24-0524
• Status: Unpublished

Opinion

2026 IL App (1st) 240524-U No. 1-24-0524 First Division March 23, 2026

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________

EMIL MANOLACHI, ) Appeal from the ) Circuit Court of Plaintiff-Appellant and Cross- ) Cook County. Appellee, ) ) v. ) No. 23 L 3966 ) GHEORGHE C. COSTEA, and OSIRIS ) CONSTRUCTION, INC., ) ) Honorable Defendants-Appellees and Cross- ) Michael F. Otto Appellants. ) Judge, Presiding.

____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment. ORDER

¶1 Held: We affirm the circuit court’s dismissal of plaintiff’s negligence complaint where the exclusive remedies provision of the Workers’ Compensation Act applies, and we dismiss defendants’ cross-appeal as moot.

¶2 In this refiled action, plaintiff, Manolachi brought an action against defendants Gheorghe

C. Costea and Osiris Construction, Inc., alleging “construction negligence” and seeking to recover No. 1-24-0524

for injuries he sustained on a residential worksite at which defendants were the general contractors.

In his verified complaint, plaintiff alleged, inter alia, that defendants controlled the manner of the

work, that he was under defendants’ direct control and supervision, and that the scaffold from

which he fell was provided by defendants.

¶3 Defendants initially filed a motion for sanctions pursuant to Illinois Supreme Court Rule

219(c) (eff. July 1, 2002), seeking to have plaintiff’s refiled case dismissed with prejudice. The

motion was premised on the discovery sanction imposed on plaintiff in the original action. The

trial court denied defendants’ motion for sanctions. Following the trial court’s denial, defendants

next filed a motion to dismiss the refiled complaint pursuant to section 2-619(a)(9) of the Code of

Civil Procedure (Code) (735 ILCS 2-619(a)(9) (West 2022). The court allowed the motion and

dismissed plaintiff’s refiled complaint with prejudice. Plaintiff appealed dismissal of the

complaint. Defendants-cross-appellants appealed the denial of their motion for sanctions.

¶4 For the reasons that follow, we affirm dismissal of plaintiff’s complaint and dismiss

defendants’ cross-appeal as moot.

¶5 I. BACKGROUND

¶6 Before proceeding to address the issues raised in the refiled action, we briefly summarize

those facts and the court’s rulings in the original action as contained in the record now before us

in this appeal.

¶7 Original Action

¶8 On August 15, 2018, plaintiff filed a complaint in the circuit court of Cook County in which

he alleged “construction negligence” against defendants. (No. 2018 L 008843). On March 18,

2019, defendants filed a motion to dismiss the complaint pursuant to section 2-619 of the Code

arguing that plaintiff’s claims were barred by the exclusive remedies provision of the Workers’

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Compensation Act (Act) (820 ILCS 305(5)(e)(a) (West 2022)). The trial court denied defendants’

motion, stating that the complaint’s allegation regarding plaintiff’s employment status would be

borne out in discovery and that there had been no evidence to support a finding that plaintiff was

“eligible, filed for, and received” worker’s compensation benefits. The court stated that should the

parties discover that evidence, defendants could file another motion to dismiss, however, dismissal

under section 2-619 was unwarranted at this stage. The case was subsequently set for trial to

commence on May 23, 2022.

¶9 On March 3, 2022, defendants filed a motion for sanctions in which they alleged plaintiff

had suborned perjury. Specifically, defendants alleged that plaintiff’s witness Sebestein Szliyzge,

during recorded questioning by plaintiff’s counsel, was being passed information by plaintiff

concerning the building of the scaffold from which plaintiff had fallen. Szliyzge falsely stated that

defendant told him that he (defendant) had built the scaffold on the morning of the incident. The

recording was subsequently provided to counsel for defendants. On November 29, 2021, during

his deposition by defendants’ counsel, Szliyzge testified that at the time of the recorded statements,

he was at plaintiff’s home and that plaintiff had requested that he provide a statement to his

(plaintiff’s) attorney by telephone. As plaintiff’s attorney asked Szliyzge questions, plaintiff wrote

down on a piece of paper for Szliyzge to answer either “yes” or “no.” Szliyzge further testified

that contrary to the recorded statement, he had never spoken with defendant concerning who built

the scaffold, that he was given the “false answers” by plaintiff during the recording, and that

plaintiff had paid him to make the statements.

¶ 10 On March 31, 2022, defendants filed their reply to plaintiff’s response to the motion for

sanctions. However, we find no written response in the record.

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¶ 11 At the May 5, 2022, hearing on the motion for sanctions, defendants argued for dismissal

of the case with prejudice, citing Illinois Supreme Court Rule 219 (eff. July 1, 2002) as well as the

court’s inherent authority to protect the integrity of the court system. Although the court denied

defendants’ motion to dismiss, the court entered an order to bar Szilagyi’s testimony, assessed

costs, and admonished plaintiff that “if I have convincing evidence that something like this

happens again, I’ll dismiss it as a sanction, so you’re forewarned.”

¶ 12 Subsequently, on May 16, 2022, defendants filed an emergency motion seeking as a

sanction that the case be dismissed with prejudice. In support, defendants first recalled for the court

its prior order barring Szliygye’s testimony and its forewarning to plaintiff. Defendants then

informed the court that plaintiff had since coached his wife, Stefania Manolachi, to give false

testimony regarding a conversation she allegedly had with defendants concerning the accident.

Thus, they sought to now have Stefania’s testimony barred, and the case dismissed with prejudice.

Further, defendants argued, if the motion to bar and to dismiss with prejudice was denied, that the

court certify the following question to the appellate court, “Whether a trial court’s finding that

Plaintiff suborned perjury by his disclosed witness requires the entry of an order of dismissal with

prejudice?” We find no written response by plaintiff to defendants’ motion to dismiss in the

record.

¶ 13 In the transcript of the May 18, 2022, hearing, Judge Brendan O’Brien acknowledged

having before the court defendants’ emergency motion to dismiss plaintiff’s complaint with

prejudice, as well as plaintiff’s counsel’s petition to withdraw from representation. Prior to the

court ruling on either motion, plaintiff’s counsel stated that although his motion to withdraw had

not yet been ruled upon, he deemed it his ethical obligation to argue for the lesser sanction of

dismissal without prejudice, in order that plaintiff could have his day in court. In ruling, the judge

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noted that dismissal with prejudice would be harsh and ultimately dismissed the case “without

prejudice as a sanction.” The judge stated that should plaintiff refile the case, defendants could

renew their motion for “dismissal with prejudice – the dismissal with prejudice and other

sanctions.” Additionally, the court denied plaintiff’s counsel’s petition to withdraw from

representation as moot.

¶ 14 The record reflects two separate written orders entered on May 19, 2022, by Judge O’Brien.

The first order memorialized the court’s oral ruling on defendants’ motion for sanctions at the May

5, 2022, hearing. The second written order reflects the court’s ruling on defendants’ emergency

motion at the May 18, 2022, hearing.

¶ 15 Refiled Action

¶ 16 On April 19, 2023, plaintiff refiled his case in the circuit court of Cook County, again

naming as defendants, Costea and Osiris Construction, Inc. (No. 2023 L 003966). The allegations

in the two-count refiled complaint are the same as in the originally filed complaint, except the

refiled complaint includes a verification and affidavit pursuant to Illinois Supreme Court Rule 222

(eff. Jan. 1, 2011).

¶ 17 In count I of the verified complaint, plaintiff alleged that Osiris Construction, Inc., was

the general contractor of a construction project involving improvements, modification and the like

to property located in Orland Park. The construction project consisted of erecting and/or

constructing an indoor underground pool as well as renovating windows and window molding

surrounding the pool. Further, plaintiff alleged that defendants “exclusively controlled and

directed” the manner of the completion of the work. Prior to February 1, 2018, plaintiff was

“retained, hired, and/or employed by the defendants” to perform work for the project. On February

1, 2018, plaintiff “was under the direct control and supervision” of defendants and was specifically

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directed by defendants to perform window molding work on the windows surrounding the pool.

On February 1, 2018, defendants “provided, designed, built, constructed, and/or maintained an

exclusively controlled scaffold” in order that plaintiff could perform the window and molding

work. The scaffold as provided by defendants created an unreasonably dangerous and hazardous

working condition for plaintiff at the job location. Defendants knew or should have known that the

scaffold as built and constructed and provided to plaintiff involved an unreasonable risk of harm

to him. Additionally, defendants “had the ability and power to direct Plaintiff, EMILE

MANOLCAHI, to perform other work besides that of the window molding.” Finally, the complaint

alleged that as result of defendants’ conduct, plaintiff sustained serious injuries resulting from the

collapse of the scaffolding boards. In his prayer for relief, plaintiff sought a judgment against Osiris

Construction in an amount in excess of $50,000 and costs.

¶ 18 Count II of the verified complaint realleges and incorporates count I, paragraphs 1 through

16 of the complaint and prays for the same relief, except it names Costea as the alleged tortfeasor.

Count II additionally alleges that Costea “personally retained, engaged with, hired, employed

and/or compensated from his personal banking account” various construction personnel, including

plaintiff.

¶ 19 In lieu of an answer, on August 17, 2023, defendants filed a motion to dismiss plaintiff’s

refiled complaint with prejudice. As bases, in addition to citing section 2-619(9) of the Code,

defendants also cited section 5-116 (735 ILCS 5/5-116) (West 2022)) of the Code of Civil

Procedure, as well as Illinois Supreme Court Rules 219(c) (eff. July 1, 2002) and 218 (eff. Feb. 2,

2023). Alternatively, if relief was denied, defendants sought the court’s certification of the

following question to the appellate court: “Whether a trial court’s finding that a Plaintiff suborned

perjury before and after the Court’s admonition against such conduct necessitates an order of

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dismissal of the case with prejudice?” The court denied certification, finding it to be inapplicable

to the facts in the case.

¶ 20 In the motion, defendants first noted to the court that the April 2023 action was a refiled

case and that the original case had been dismissed without prejudice following separate incidents

of plaintiff having been found to have twice suborned perjury. The motion reiterated Judge

O’Brien’s May 2022 dismissal order which purported to grant defendants the right to refile their

motion for dismissal with prejudice should plaintiff refile his case. They argued that based on

plaintiff’s continued misconduct in the original action, his refiled complaint should be dismissed

with prejudice and costs and fees assessed.

¶ 21 On October 10, 2023, plaintiff filed a response to the motion in which he argued that

defendants failed to provide credible evidence of misconduct as related to either of the two

witnesses and that the drastic measure of dismissal was not favored. He maintained that no court

had ever made a finding that either Szilagyi’s or plaintiff’s wife’s prior statements were perjured.

Further, he argued, Judge O’Brien had already imposed sanctions against plaintiff relating to

Szilagyi’s statements. Additional sanctions for the already sanctioned conduct “would mean that

`plaintiff is being penalized twice for the same conduct.” He maintained that the alleged

misconduct did not provide a sufficient basis for the extreme sanction of dismissal.

¶ 22 After all briefing had been concluded, on January 5, 2024, Judge Anthony Swanagan

entered a ruling on the motion. The judge denied defendants’ motion for sanctions as well as for

certification of a question for interlocutory appellate review. In the order, Judge Swanagan noted

that in the refiled case, defendants had presented “neither additional evidence establishing

Manolachi’s misconduct regarding his wife’s deposition nor evidence of new misconduct.”

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¶ 23 On January 4, 2024, defendants filed a motion to dismiss the complaint pursuant only to

“ILCS 619(9)”. In the motion defendants argued that the Act precluded any suits sounding in tort

where the injury occurred to a worker in the course of his employment. Defendants argued that

plaintiff admitted that: he was hired and employed by defendants; defendants exclusively

controlled and directed his work; defendants were in the general contractor and construction

business; and plaintiff performed work for them. Thus, defendants argued plaintiff was, by his own

admission, an employee. Therefore, he was subject to the exclusive remedy provision under the

Act. Attached to the motion was a copy of plaintiff’s refiled verified complaint.

¶ 24 In his response, plaintiff argued that defendants’ motion to dismiss lacked any evidentiary

support and mischaracterized the complaint. After setting forth the “standard of review,” plaintiff

first argued that because defendants’ motion to dismiss was based on the same arguments

presented in the original action, defendants were attempting “a second bite of the apple” by filing

their motion to dismiss in the refiled suit. Citing to the ruling in the original suit, plaintiff noted

that the trial court there had stated that the issue of whether plaintiff was an employee would be

borne out in discovery and that no evidence was presented that plaintiff was eligible for, filed, or

received worker’s compensation benefits. Plaintiff additionally argued that a genuine issue of fact

existed as to whether plaintiff was an employee or an independent contractor. Beyond the

pleadings in the original case, plaintiff pointed to other factors supporting his claim that he was an

independent contractor. First, he noted that defendants had informed their (defendants’) insurance

carrier that this was not a worker’s compensation claim. Second, plaintiff was issued a Form 1099

for his work for years 2017 and 2018 without any employment taxes withheld from his

compensation.

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¶ 25 On January 25, 2024, defendants filed their reply to plaintiff’s response to the motion to

dismiss. On January 29, 2024, defendants filed an amendment to the reply, again asserting that the

refiled complaint was verified and attaching a copy of the verification and affidavit as an exhibit.

¶ 26 On February 13, 2024, Judge Michael Otto granted the motion to dismiss, with prejudice.

In his ruling, the judge cited Oleksy v. Ill. Workers’ Comp. Comm’n, 2021 IL App (1st)

191939WC-U, as persuasive. Pointing to the allegations in plaintiff’s verified complaint, the court

stated that plaintiff had affirmatively pled facts sufficient to establish the factors which the

Commission in Olesky found dispositive in finding the Commission’s determination of the

plaintiff’s non-employment to be against the manifest weight of the evidence. Additionally, the

court noted that plaintiff had filed no affidavits in the case and that his reliance on 1099 forms he

had received from defendants were insufficient to defeat the other factors supporting a finding that

he was an employee. Further, the court noted, e-mails from defendants’ adjustor could not be

considered as plaintiff had not lain any foundation for their admission.

¶ 27 On March 12, 2024, plaintiff timely filed his notice of appeal. On March 19, 2024,

defendants filed notice of their cross-appeal.

¶ 28 II. ANALYSIS

¶ 29 Plaintiff-Appellant and Cross-Appellee’s Appeal

¶ 30 Plaintiff contends that defendants failed to carry their burden to present sufficient evidence

in support of granting their motion to dismiss. He notes that the same argument that defendants

put forth in the original action failed and this one should fail for the same reasons. Plaintiff

maintains that here, in the refiled action, the trial court failed to interpret the facts alleged in the

complaint and all reasonable inferences therefrom in the light most favorable to plaintiff when it

held that the plaintiff’s allegation established his status as an employee. Thus, plaintiff maintains

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that the trial court’s ruling should be reversed and the matter remanded for trial because the

evidence, “at a minimum, raises questions of material fact that precludes dismissal.”

¶ 31 In sum, defendants-cross-appellants respond that the trial court’s dismissal was proper as

plaintiff’s verified complaint alleged an employer-employee relationship and the Act provides an

exclusive remedy for workplace injuries.

¶ 32 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and all

well-pleaded facts and reasonable inferences therefrom but asserts an affirmative matter outside

the complaint that bars or defeats the cause of action. Villa DuBois, LLC v. El, 2020 IL App (1st)

190182, ¶ 34. The purpose of a section 2-619 motion is to provide a method of disposing of issues

of law and easily proved facts relating to the affirmative matter early in the litigation. Id.; Incandela

v. Giannini, 250 Ill. App 3d. 23, 26 (1993). In ruling on the motion, the court construes the

complaint in the light most favorable to the non-moving party and should grant the motion only if

the plaintiff can prove no set of facts entitling him or her to recover. Id. The trial court must take

all facts properly pleaded as true. Id. Where there are disputed issues of fact, an evidentiary hearing

is required. Id. However, where the record shows that a genuine and material question of fact does

not exist, the court should grant the motion. Id. We review a decision granting a motion pursuant

to section 2-619 de novo. Wackrow v. Niemi, 231 Ill. 2d 418, 422 (2008).

¶ 33 Section 5(a) of the Workers’ Compensation Act provides, in relevant part:

“No common law or statutory right to recover damages from the employer *** for

injury or death sustained by any employee while engaged in the line of his duty as

such employee other than the compensation herein provided, is available to any

employee who is covered by the provisions of this Act, to any one wholly or

partially dependent on him, the legal representatives of his estate, or any one

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otherwise entitled to recover damages for such injury.” 820 ILCS 305/5(a) (West

2022).

In addition, section 11 of the Act provides:

“The compensation herein provided together with the provisions of this Act, shall

be the measure of the responsibility of any employer *** for accidental injuries

sustained by any employee arising out of and in the course of employment ***.”

820 ILCS 305/11 (West 2022).

¶ 34 “The Act imposes liability without fault upon the employer, and, in return, it prohibits

common lawsuits by employees against their employer.” Meerbrey v. Marshall Field & Co., 139

Ill. 2d 455, 462 (1990); Ocasek v. Krass, 153 Ill. App. 3d 215, 217 (1987) (“The policy of the Act

provides a certain remedy to the employee in return for limiting the liability of the employer.”). It

is designed to provide financial protection to workers for accidental injuries arising out of and in

the course of employment. Pathfinder Co., v. Industrial Commission, 62 Ill. 2d 556, 563 (1976).

The Act operates to make worker’s compensation benefits the exclusive remedy of an injured

employee. Garland v. Morgan Stanley & Co., Inc., 2013 IL App (1st) 112121, ¶ 24. Therefore,

except as otherwise provided in the Act, an employee may not ordinarily be compensated by the

employer for an injury caused by the employer during the course of employment. See Kontos v.

Boudros, 241 Ill. App. 3d 198, 201 (1993).

¶ 35 To escape the bar of sections 5 and 11 of the Act, a plaintiff must demonstrate that the

injury “(1) was not accidental; (2) did not arise from his or her employment; (3) was not received

during the course of employment; or (4) was not compensable under the Act.” Esposito v. Dior

Builders, 274 Ill. App. 3d 338, 345 (1995). In the case at bar, the relevant inquiry is whether

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plaintiff was an employee or an independent contractor at the time of the injury. Plaintiff asserts

that he was an independent contractor.

¶ 36 No hard, fast rule of law exists regarding whether a worker is an employee or an

independent contractor. Ware v. Industrial Comm’n, 318 Ill. App. 3d 1117, 1122 (2000). Our

supreme court, however, has provided a list of several factors for a court to consider when making

that determination. Roberson v. Industrial Comm’n (P.I. & I. Motor Express, Inc.), 225 Ill. 2d 159,

175 (2007). Included among them are whether the purported employer: (1) may control the manner

in which the person performs the work; (2) dictates the person’s work schedule; (3) pays the person

hourly; (4) withholds income taxes and social security from the person’s compensation; (5) may

discharge the person at will; and (6) supplies the person with materials and equipment. See also

Ware, 318 Ill. App. 3d at 1122. The significance of these factors rests on the totality of the

circumstances, and no single factor is determinative. Roberson, 225 Ill. 2d at 175. Even so, the

most significant among all of the factors is whether the purported employer has a right to control

the actions of the employee. Ware, 318 Ill. App. 3d at 1122. For purposes of the Act, the term

“employee” should be broadly construed. Chicago Housing Authority v. Industrial Comm’n, 240

Ill. App. 3d 820, 822 (1992).

¶ 37 Plaintiff argues that in the original action, the trial judge denied defendant’s motion to

dismiss finding that no evidence was presented that plaintiff was subject to the Act’s exclusivity

provision. He notes that “[i]t is perplexing that, on the second time around, the Trial Court could

find that there was no question of material fact when it reached a conclusion at odds with the earlier

one.” He maintains that the factual allegations in his complaint, “at minimum,” were ambiguous

regarding his status. He further asserts that, because the trial court rejected an interpretation of the

factual allegations most favorable to plaintiff, the trial court’s ruling should be reversed.

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¶ 38 Plaintiff overlooks the fact and the significance of having filed a verified complaint in this

refiled action. A factual admission in a verified pleading constitutes a judicial admission, which

has the effect of withdrawing a fact from issue and makes introduction of evidence in support

thereof wholly unnecessary. L.D.S., LLC v. Southern Cross Food, Ltd., 2011 IL App (1st) 102379,

¶ 35; see also Konstant Products, Inc. v. Liberty Mutual Fire Insurance Co., 401 Ill. App. 3d 83,

86 (2010) (“[j]udicial admissions are formal admissions in the pleadings that have the effect of

withdrawing a fact from issue and dispensing wholly with the need for proof of the fact”). Such

admissions are defined as “deliberate, clear, unequivocable statements by a party about a concrete

fact within that party’s knowledge.” In re Estate of Rennick, 181 Ill. 2d 395, 406-07 (1998).

Judicial admissions bind the pleader throughout the entire litigation. Nissan Motor Acceptance

Corp. v. Abbas Holding I, Inc., 2012 IL App (1st) 111296, ¶ 19. Once a plaintiff files a verified

complaint, statements alleged therein, that are not the product of mistake or inadvertence, cannot

later be contradicted. Id. Additionally, a court may consider judicial admissions contained in the

record when ruling on a motion to dismiss. Jordan v. Knafel, 355 Ill. App. 3d 534, 544 (2005).

Significant, especially in this case, the purpose of the judicial admission rule is to remove the

temptation to commit perjury. Roti v. Roti, 364 Ill. App. 3d 191, 200 (2006).

¶ 39 Here, in the verified complaint, plaintiff admitted that (1) defendants “exclusively

controlled and directed the manner of the completion” of the work, (2) plaintiff was “under the

direct control and supervision of defendants,” (3) plaintiff was “specifically directed” by

defendants to perform the work, and (4) the scaffold was “built constructed, designed, and/or

maintained exclusively by defendants.” By his verified complaint, plaintiff concedes any question

of material fact regarding these issues and, ultimately, his status as an employee. We find no

ambiguity in the substance of the complaint and plaintiff makes no argument that the allegations

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made therein were the product of mistake or inadvertence. Further, and although not raised by

plaintiff here on appeal, we agree with the trial court that the 1099 forms provided to plaintiff by

defendants do no more than establish the parties’ own label of their relationship. That factor,

however, is insufficient to defeat plaintiff’s other admissions supporting a finding that he was, in

fact, an employee.

¶ 40 Based upon our review of the record, the trial court properly considered plaintiff’s judicial

admissions as contained in his verified complaint when deciding defendants’ motion to dismiss.

By his own admission, at the time of his injury, plaintiff was defendants’ employee. As such, he

was subject to the exclusive remedy provision of the Act. We therefore affirm the trial court’s

dismissal of plaintiff’s complaint pursuant to section 2-619 of the Code.

¶ 41 Defendants-Appellees and Cross-Appellants’ Appeal

¶ 42 Defendants-cross-appellants contend that plaintiff’s refiled complaint should have been

dismissed because plaintiff suborned perjury and attempted to undermine the judicial process in

his prior suit. Additionally, they contend that plaintiff’s “malfeasance” deserved dismissal because

lesser sanctions had no deterrent effect. Defendants did not appeal the court’s denial of their

request to certify the question.

¶ 43 We are not oblivious to the gravity of plaintiff’s alleged misconduct in the originally filed

case which demonstrates an utter disregard for the truth-seeking process of our judicial system.

Even so, in light of our affirmance of the trial court’s dismissal of plaintiff’s refiled case, we must

dismiss defendants’ cross-appeal as moot. Fine Arts Distributors v. Hilton Hotel Corp., 89 Ill.

App. 3d 881, 885 (1980); see also Marion Hospital Corp. v. Illinois Health Facilities Planning

Board, 201 Ill. 2d 465, 471 (2002) (“when the resolution of a question of law cannot affect the

result of a case as to the parties, or when events have occurred which make it impossible for the

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reviewing court to render effectual relief, a case is rendered moot”). “Where the issues involved

in the trial court no longer exist, an appellate court will not review a case merely to decide moot

or abstract questions, to establish a precedent, or to determine the right to, or the liability for, costs,

or, in effect, to render a judgment to guide potential future litigation.” La Salle National Bank v.

City of Chicago, 3 Ill. 2d 375, 378-79 (1954). Accordingly, we dismiss defendants-appellees’ cross

appeal.

¶ 44 III. CONCLUSION

¶ 45 For the reasons stated, we affirm the circuit court’s dismissal of plaintiff’s complaint and

dismiss defendants’ cross-appeal.

¶ 46 Affirmed; Cross-Appeal Dismissed.

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