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FOURTH DIVISION
May 26, 2005

JUSTICE QUINN delivered the opinion of the court:

Plaintiff Steve Adams, both individually and as the specialadministrator for the estate of his wife, Dixie Adams, filed athree-count complaint against defendants Bath & Body Works, Inc.(BBW), Globaltech Industries, Inc. (Globaltech), and SharonKubasak (Kubasak), seeking damages from a fire that occurred inthe house that he and his family had rented from Kubasak. Plaintiff alleged that a candle, manufactured by Globaltech andsold by BBW, was the cause of the fire. Asserted in hiscomplaint were numerous claims for products liability, strictliability, and negligence against Globaltech and BBW. Plaintiffalso asserted claims under Illinois' Smoke Detector Act (SmokeDetector Act) (425 ILCS 60/3 (West 1996)), against Kubasak basedupon her failure to provide operating smoke detectors in thehouse. Each defendant filed cross-claims against each otherseeking contribution, as well as counterclaims against plaintifffor negligently failing to preserve evidence. In addition, BBWfiled a third-party complaint against Kubasak's insurer, StateFarm Fire and Casualty Company (State Farm), for negligentspoliation of evidence.

The circuit court granted a motion filed by BBW and joinedby Globaltech dismissing plaintiff's claims as a discoverysanction pursuant to Supreme Court Rule 219(c) (166 Ill. 2d R.219(c)), for failing to preserve evidence. On appeal, plaintiffcontends that the circuit court abused its discretion indismissing his complaint as a discovery sanction. Plaintiff alsoargues that the circuit court erred in striking his experts'affidavits sua sponte due to a lack of foundation. For thefollowing reasons, we reverse the judgment of the circuit court.

BACKGROUND

On June 17, 1997, a fire swept through the house thatplaintiff and his family had rented from Kubasak in Oak Forest,Illinois. According to plaintiff's deposition, before going tobed on the night before the fire, he blew out several candles inthe living room area of the house. One of those candles was a"Garden Lavender Botanical Candle," which was allegedlymanufactured and designed by Globaltech and sold by BBW. Plaintiff suffered severe burns as a result of the fire; hiswife, however, died from burns and smoke inhalation.

Six days after the fire, plaintiff retained counsel. Thoughboth state and city fire inspectors were unable to pin down thecause of the fire, they were able to determine that the firebegan near a couch located in the living room. Based uponcomments he overheard from one of these inspectors, plaintiff'scounsel removed two lamps that he believed were the potentialimpetus of the fire. After it was determined that these lampswere not the cause, plaintiff's focus shifted to a "GardenLavender Botanical Candle" that he said was located on an endtable near the couch in the living room.

At some point shortly after the fire, however, Kubasak hiredAction Fire Restoration (Action Fire) to clean up the debris andrepair the damage. State Farm paid Action Fire for its services. Unbeknownst to plaintiff, many of his belongings, including theend table and couch, plus the carpet that Kubasak owned, wereremoved and destroyed.

Also, shortly after the fire, State Farm retained Crawford &Company (Crawford) to examine the house and determine the extentof the damage. Crawford, in turn, hired Joe Mazzone toinvestigate the cause of the fire. In his deposition, Mazzonestated that, after ruling out the home's wiring, appliances, andfixtures, he believed one possible cause of the fire was a candleplaced on the end table. Mazzone based this belief on the factthat the area in which these items were located contained theheaviest "char or burn marks," as well as plaintiff's statementto fire inspectors that he blew out a candle on the end tablebefore going to bed on the night of the fire. Mazzone statedthat both he and Donald Hitchcock, a fire investigator with theIllinois State Fire Marshall's office, "agreed that the placewhere the fire started was the table." Because the end table,couch, and carpet had been destroyed, however, there was nophysical evidence that would either support or refute plaintiff'sstatement as to the candle's location. Plaintiff was not privyto Mazzone's report until December 1997, well after the endtable, couch and carpet were destroyed.

On April 26, 1999, plaintiff filed suit. Though plaintiffinitially named only BBW and Globaltech as defendants, he laterfiled a third-amended complaint on August 3, 2000, adding claimsagainst Kubasak pursuant to the Smoke Detector Act. On February20, 2002, BBW filed a motion to dismiss plaintiff's complaint or,alternatively, to bar plaintiff from introducing any evidencethat a candle sold by BBW was involved in the fire as a sanctionunder Rule 219(c) for his failure to preserve either the endtable, couch, or carpet. Globaltech joined BBW's motion forsanctions.

Both State Farm and Kubasak filed motions for summaryjudgement (735 ILCS 5/2-1005 (West 2000)) on the third-partycomplaint and counterclaims filed against them by BBW andGlobaltech. On August 28, 2002, though the motions were fullybriefed and argued before the circuit court, the court deferredruling because discovery was still open. On October 9, 2002,after discovery had closed, the circuit court again heardarguments; two days later the court filed a written orderdismissing plaintiff's complaint.

In its order, the court found "two separate grounds on whichthe within claims of plaintiff must be disposed:" (1) "plaintiffand his counsel had the opportunity and the responsibility topreserve relevant evidence and failed to do so and framed theirtheory of the case only after allowing relevant evidence overwhich they had control to be destroyed (Boyd v. TravelersInsurance Co., 166 Ill. 2d 188 (1995) and its progeny)" and (2)"plaintiff has offered no competent expert witness opiniontestimony to present at trial with respect to cause and origin." The court found that the "[d]isposition of the claims ofplaintiff has the practical effect of mooting out the otherclaims among and between the parties." The court also dismissed"[a]ny claims among and between those parties that are nottechnically moot" because "there remains nothing to try on any ofthe pending claims" after "the entry of an order barring thepresentation of evidence that a defective garden lavenderbotanical candle manufactured by [Globaltech] and sold by [BBW]"was the cause.

Plaintiff filed a timely notice of appeal. In addition, BBWfiled a cross-appeal, the resolution of which is "contingent uponthis court's ruling on Plaintiff's appeal." Specifically, in itscross-appeal, BBW contends that, should this court reverse thecircuit court's sanction of dismissal, it should reinstate BBW'scounterclaims and third-party complaint. Moreover, BBW maintainsthat because Kubasak failed to file a similar cross-appeal, hercounterclaims against BBW, Globaltech, and Adams are forfeited.

ANALYSIS

I. Rule 219(c) SANCTIONS

Plaintiff contends that the circuit court erred indismissing his claims as a sanction under Rule 219(c) due to hisfailure to preserve the end table, couch and carpet. Specifically, he argues that neither he nor his attorney knewthat such evidence might be relevant (having pinned their hopeson the two lamps that plaintiff's attorney removed shortly afterthe fire) or were responsible for the destruction of thatevidence. He also argues that the circuit court mistakenlydismissed his claims against Kubasak because her liability underthe Smoke Detector Act was not dependent upon the cause of thefire. He contends that Kubasak could not have been prejudiced byhis alleged failure to preserve evidence.

BBW, Globaltech, and Kubasak all argue that becauseplaintiff should have known that the end table, couch, and carpetmight be relevant to determining the cause of, and, therefore,liability for, the fire, he breached his duty under Boyd v.Travelers Ins. Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995), andShimanovsky v. General Motors Corp., 181 Ill. 2d 112, 692 N.E.2d286 (1998), to preserve that evidence. Though they do notcontend that plaintiff or his counsel played any affirmative rolein the destruction of that evidence, they assert that the circuitcourt's dismissal of plaintiff's complaint as a discoverysanction under Rule 219(c) was appropriate because even thenegligent or inadvertent destruction of key evidence wouldjustify such a sanction.

Recently, our supreme court discussed Boyd, Shimanovsky, andthe topic of presuit destruction of evidence. See generallyDardeen v. Kuehling, 213 Ill. 2d 329 (2004). In Dardeen, whiledelivering newspapers, the plaintiff was injured when he steppedinto a hole in the defendant's sidewalk. Dardeen, 213 Ill. 2d at332. After the defendant received the go-ahead from her insurerto fix the hole, the plaintiff sued the insurer for negligentspoliation of evidence. Dardeen, 213 Ill. 2d at 331. Thesupreme court, relying upon its decision in Boyd, a decisionwhich it termed its "watershed pronouncement on spoliation ofevidence," found that the insurer could not be held liable fornegligent spoliation. Dardeen, 213 Ill. 2d at 335. Reciting theduty element for a spoliation claim it had outlined in Boyd, thecourt stated:

" 'The general rule is that there is no duty topreserve evidence; however, a duty to preserve evidencemay arise through an agreement, a contract, a statute,[citation] or other special circumstance. Moreover, adefendant may voluntarily assume a duty by affirmativeconduct. [Citation.] In any of the foregoinginstances, a defendant owes a duty of due care topreserve evidence if a reasonable person in thedefendant's position should have foreseen that theevidence was material to a potential civil action.' " (Emphasis omitted.) Dardeen, 213 Ill. 2d at 336,quoting Boyd, 166 Ill. 2d at 195.

In an amicus brief, the Illinois Trial Lawyers Associationasked the court to "harmonize Boyd, where [it] held that,generally, there is no duty to preserve evidence," with itsholding in Shimanovsky "that a potential litigant owes a duty topotential adversaries to take reasonable measures to preserve theintegrity of relevant, material evidence." Dardeen, 213 Ill. 2dat 337. Instead of harmonizing the two, the court simply foundShimanovsky "inapposite." See Dardeen, 213 Ill. 2d at 339. Thecourt noted that in Shimanovsky, it had "never mentioned Boyd, orspoliation," because "the central issue in Shimanovsky waswhether the trial court could dismiss the plaintiff's complaintas a discovery sanction for the plaintiff's presuit destructionof evidence." Dardeen, 213 Ill. 2d at 340.

The lesson to be taken from this, we believe, is that thetwo remedies discussed in those cases, i.e., a claim fornegligent spoliation of evidence in Boyd and dismissal as asanction under Rule 219(c) in Shimanovsky, are separate anddistinct. See Dardeen, 213 Ill. 2d at 339-40. In other words,Shimanovsky and Boyd present a party confronted with the loss ordestruction of relevant, material evidence at the hands of anopponent with "two roads diverged in a wood."⁽¹⁾ He may either (1)seek dismissal of his opponent's complaint under Rule 219(c) or(2) bring a claim for negligent spoliation of evidence. The modeof relief most appropriate will depend upon the opponent'sculpability in the destruction of the evidence. The formerrequires conduct that is "deliberate [or] contumacious or[evidences an] unwarranted disregard of the court's authority"and should be employed only "as a last resort and after all thecourt's other enforcement powers have failed to advance thelitigation." Shimanovsky, 181 Ill. 2d at 123. The latterrequires mere negligence, the failure to foresee " 'that the[destroyed] evidence was material to a potential civil action.' "Dardeen, 213 Ill. 2d at 336, quoting Boyd, 166 Ill. 2d at 195. Because BBW and Globaltech chose to take the Rule 219(c) road,any reliance upon Boyd or its progeny to support the circuitcourt's sanction is inappropriate.

Moreover, we reject defendants' reliance upon those caseswhich have found "that negligent or inadvertent destruction oralteration of evidence may result in a harsh sanction, includingdismissal, when a party is disadvantaged by the loss." FarleyMetals, Inc. v. Barber Colman Co., 269, Ill. App. 3d 104, 110,645 N.E.2d 964 (1994), citing Graves v. Daley, 172 Ill. App. 3d35, 526 N.E.2d 679 (1988); Stegmiller v. H.P.E., Inc., 81 Ill.App. 3d 1144, 401 N.E.2d 1156 (1980); Marrocco v. General MotorsCorp, 966 F.2d 220 (7th Cir. 1992); see also Kambylis v. FordMotor Company, 338 Ill. App. 3d 788, 794, 788 N.E.2d 1 (2003);Shelbyville Mutual Insurance Co. v. Sunbeam Leisure Products Co.,262 Ill. App. 3d 636, 641, 634 N.E.2d 1319 (1994), citing StateFarm Fire & Casualty Co. v. Frigidaire, Division of GeneralMotors Corp., 146 F.R.D. 160 (N.D. Ill. 1992); Jones v. GoodyearTire & Rubber Co., 137 F.R.D. 657 (C.D. Ill. 1991). It is onlywhere a party's conduct can be characterized as "deliberate,contumacious or [an] unwarranted disregard of the court'sauthority" that the drastic sanction of dismissal is justified,and, even then, only "as a last resort and after all the court'sother enforcement powers have failed to advance the litigation." Shimanovsky, 181 Ill. 2d at 123; see also Nationwide MutualInsurance Co. v. Kogut, 354 Ill. App. 3d 1, 7-8 (2004); Vortanzv. Elmhurst Memorial Hospital, 179 Ill. App. 3d 584, 590, 534N.E.2d 625 (1989); Kubian v. Labinsky, 178 Ill. App. 3d 191, 196,533 N.E.2d 22 (1988); Barnes v. Black & Decker Manufacturing Co.,135 Ill. App. 3d 700, 708, 481 N.E.2d 1200 (1984).

In those instances where evidence is destroyed due to merenegligence, a prejudiced litigant can seek redress by bringing aclaim for negligent spoliation of evidence against theresponsible party. The question here is whether plaintiff'sconduct leading to the destruction of the end table, couch, andcarpet was sanctionable and, if so, whether the circuit court'ssanction of dismissal was appropriate.

In a strict-products-liability case, the preservation of theallegedly defective product is important both to the proof of anddefense to liability. Stringer v. Packaging Corp. of America,351 Ill. App. 3d 1135, 1138, 815 N.E.2d 476 (2004). Even priorto the filing of such a lawsuit, a potential litigant owes a dutyto take reasonable measures to preserve the integrity of relevantand material evidence. Shimanovsky, 181 Ill. 2d at 121. Underlying this duty is the fear that if a court were unable tosanction a party for the presuit destruction of evidence, apotential litigant could circumvent discovery rules or escapeliability simply by destroying the proof prior to the filing of acomplaint. Shimanovsky, 181 Ill. 2d at 121.

However, even where evidence is destroyed, altered, or lost,a defendant is not automatically entitled to a specific sanction. Stringer, 351 Ill. App. 3d at 1139. Rather, Illinois SupremeCourt Rule 219(c) grants the circuit court the discretion toimpose a sanction, including dismissal of the cause of action,upon any party who unreasonably refuses to comply with anydiscovery rule or any order entered pursuant to such rule. Shimanovsky, 181 Ill. 2d at 120, citing 166 Ill. 2d R. 219(c).

In fashioning an appropriate sanction, a trial court mustconsider the following: (1) the surprise to the adverse party;(2) the prejudicial effect of the proffered testimony orevidence; (3) the nature of the testimony or evidence; (4) thediligence of the adverse party in seeking discovery; (5) thetimeliness of the adverse party's objection to the testimony orevidence; and (6) the good faith of the party offering thetestimony or evidence. Boatmen's National Bank of Belleville v.Martin, 155 Ill. 2d 305, 314, 614 N.E.2d 1194 (1993). Of thesefactors, none is determinative. In re Estate of Kline, 245 Ill.App. 3d 413, 433 (1993).

Moreover, in crafting a just order, the circuit court mustremember that the purpose of a sanction is not merely to punishthe dilatory party, but to effectuate the goals of discovery. See Buffington v. Yungen, 322 Ill. App. 3d 152, 154, 748 N.E.2d844 (2001). A just order is one that is "commensurate with theseriousness of the violation" (Hanley v. City of Chicago, 343Ill. App. 3d 49, 55, 795 N.E.2d 808 (2003)), and "ensures boththe accomplishment of discovery and a trial on the merits"(Buffington, 322 Ill. App. 3d at 154).

That being said, because an order to dismiss with prejudiceis a drastic sanction (as its nickname, the "death penalty" ofsanctions, suggests), it should be invoked "only in those caseswhere the party's actions show a deliberate, contumacious, orunwarranted disregard of the court's authority"; employed only"as a last resort and after all the court's other enforcementpowers have failed to advance the litigation." Shimanovsky, 181Ill. 2d at 123.

The reversal of a trial court's imposition of a particularsanction is only justified when the record establishes a clearabuse of discretion. Boatmen's National Bank, 155 Ill. 2d at314. To determine if the trial court abused its discretion, areviewing court must look to the criteria upon which the trialcourt relied in making its determination. Shimanovsky, 181 Ill.2d at 123. Plaintiff's conduct here, though potentiallynegligent, could hardly be characterized as "deliberate,contumacious, or [an] unwarranted disregard of the court'sauthority."

First, plaintiff did not engage in any "knowing and willfuldefiance of the discovery rules or the trial court's authority." Shimanovsky, 181 Ill. 2d at 129. The destruction of the endtable, couch and carpet occurred long before plaintiff filed hislawsuit. Second, the carpet belonged to Kubasak, and it isquestionable whether he could have compelled her to preserve it. Third, even if he could have preserved this evidence, plaintiffhad no knowledge that it might have been relevant and material;his initial theory was that two lamps, recovered by his attorneyshortly after the fire, had been the cause. Finally, and perhapsmost importantly, plaintiff played no role in, nor had any noticeof, the destruction of the evidence which defendants claim wasessential to their defense. Stringer, 351 Ill. App. 3d at 1139-40 (stating that "Rule 219(c) permits sanctions only where aparty unreasonably fails to comply with a discovery order" andthat a "party who had nothing to do with the destruction ofevidence cannot be said to have unreasonably failed to complywith a discovery order" because "[b]efore noncompliance can beunreasonable, a party must have been in a position to comply").

Though a potential litigant owes a duty to take reasonablemeasures to preserve the integrity of relevant and materialevidence (Shimanovsky, 181 Ill. 2d at 121), defendants haveoffered no "reasonable measures" that plaintiff could have, butfailed, to undertake to protect this evidence, short of treatingthe second floor of the house owned by Kubasak like a crimescene. We could not find, nor have the parties cited, any case,either in Illinois or elsewhere, that has required such action.

Plaintiff may have been both foolhardy to pin his hopes onthe lamps as being the cause of the fire and negligent in failingto preserve the end table, couch and carpet. Such conduct,however, is not enough to support dismissal of his complaint as adiscovery sanction under Rule 219(c). Shimanovsky, 181 Ill. 2dat 123. Therefore, we find that the circuit court abused itsdiscretion in imposing it and reverse the dismissal ofplaintiff's complaint. Stringer, 351 Ill. App. 3d at 1139-40(finding that because no discovery violation occurred where theinjurious object was destroyed without the plaintiff's knowledge,the circuit court's refusal to impose sanctions was not an abuseof discretion).

Moreover, independent of our finding that the circuit courtabused its discretion in dismissing plaintiffs complaint as aRule 219(c) sanction, we reverse the court's dismissal ofplaintiff's claims against Kubasak premised upon her failure toinstall and maintain working smoke detectors in violation of theSmoke Detector Act.

Though the common law did not impose a civil duty uponlandlords to install smoke detectors in property leased to atenant, section 3 of the Smoke Detector Act provides an exceptionand creates an implied private right of action. Bybee v.O'Hagen, 243 Ill. App. 3d 49, 52-53, 612 N.E.2d 99 (1993); Toddv. Smith, 267 Ill. App. 3d 699, 701, 642 N.E.2d 878 (1994). Under sections 3(a) and (d), an "owner of a structure" isrequired to place a working smoke detector within 15 feet of"every room used for sleeping purposes" and make "reasonableefforts to test and maintain detectors in common stairwells andhallways." 425 ILCS 60/3(a)(d) (West 1996).

A landlord's liability under this statute does not hingeupon the occurrence of a fire, much less cause of that fire; onlythe failure to provide, test, and maintain working smokedetectors. 425 ILCS 60/3(a) and (d) (West 1996). The absence ofthe end table, couch and carpet is completely irrelevant to theissue of Kubasak's liability to plaintiff under the SmokeDetector Act. Thus, the circuit court had no basis to dismissplaintiff's claims against Kubasak as a sanction for failing topreserve evidence.

BBW, Globaltech, and Kubasak's argument as to whyplaintiff's claims against Kubasak were properly dismissed is ofthe "cart before the horse" variety. They contend thatplaintiff's failure to preserve the evidence impaired Kubasak'sability to "prosecute her counterclaims against" BBW andGlobaltech. While that might be so, it is not a sufficient basisfor dismissing plaintiff's claims against Kubasak premised uponthe Smoke Detector Act; claims which do not depend in the leaston the presence or absence of any of the evidence that wasdestroyed.

II. EXPERT AFFIDAVITS

Plaintiff next contends that the circuit court erred when itstruck his expert witnesses' affidavits sua sponte. He arguesthat he had no notice from the court that such an action wasimminent and that the affidavits were properly based uponsufficient factual data.

Defendants contend that despite the fact that no motion tostrike the affidavits was pending, plaintiff had sufficientnotice based upon comments made by the circuit court during oralargument on BBW's motion for sanctions. Defendants further arguethat the circuit court properly struck the experts' affidavitsbecause they lacked an adequate foundation.

It is poor practice for a circuit court to simply strikeaffidavits, sua sponte, without some sort of motion pending, beit oral or written. Botello v. Illinois Central R.R. Co., 348Ill. App. 3d 445, 454, 809 N.E.2d 197 (2004) (finding that it wasnot "good practice" for the trial court to sua sponte strikeaffidavits filed in support of a motion to change venue basedupon forum non conveniens on the basis that those affidavitscontained hearsay). In this case, no defendant had filed amotion for summary judgment against plaintiff, much less a motionto strike his experts' affidavits. Though the circuit court mayhave intimated an uncomfortableness with the sufficiency ofplaintiff's experts' affidavits, "the trial court, as a matter ofgood practice, should not have intervened before [defendants]first moved to strike the affidavit." Botello, 348 Ill. App. 3dat 454. Thus, in the absence of a motion to strike or a motionfor summary judgment, the circuit court erred in sua spontestriking plaintiff's experts' affidavits. On remand, the partiesare free to file the proper motions if they so desire.

III. STATE FARM'S LIABILITY

State Farm contends that, as Kubasak's insurer, it owed noduty to preserve evidence and, thus, it could not be held liablefor negligent spoliation of evidence. State Farm requests thatthis court affirm the circuit court's dismissal order in itsentirety because doing so would also eliminate the third-partyclaim for negligent spoliation of evidence asserted against it byBBW and the counterclaim under that same theory asserted byGlobaltech.

In its brief, however, State Farm urges upon us the samearguments contained in its motion for summary judgment that waspending before the circuit court prior to the court's dismissalof plaintiff's complaint as a Rule 219(c) discovery sanction. The circuit court did not rule upon State Farm's motion. Instead, in dismissing plaintiff's claims, the court found thatall of the other claims "among and between the parties" weremoot. And rightfully so, because once plaintiff's claims againstBBW and Globaltech were dismissed, both the need and the standingfor them to assert either a third-party claim or counterclaimagainst State Farm for negligent spoliation of evidence waseviscerated. However, because we are reinstating plaintiff'sclaims, those claims "among and between the parties" are nolonger moot. In addition, any motions, including State Farm'smotion for summary judgment, that were pending prior to thecircuit court's order dismissing plaintiff's complaint as a Rule219(c) discovery sanction are also reinstated.

BBW contends that State Farm has waived its motion forsummary judgment and any argument presented therein because itfailed to "obtain a ruling" from the circuit court on its motion. The cases BBW relies upon, King v. Paul J. Krez Co., 323 Ill.App. 3d 532, 752 N.E.2d 605 (2001) and Woolums v. Huss, 323 Ill.App. 3d 628, 752 N.E.2d 1219 (2001), do not support its argument. See King, 323 Ill. App. 3d at 534 (finding one of the defendant'sbases for summary judgment was waived based upon the rule that"[a]n alleged error is not preserved for review if the trialcourt fails to rule upon it"); Woolums, 323 Ill. App. 3d at 633(stating that when "a party moves to strike an affidavit filed insummary judgment proceedings, it is that party's duty to bringhis motion to the attention of the trial court and to get aruling on the motion. Failure to obtain such a ruling willoperate as a waiver of the objections to the affidavit"). Here,once the circuit court found that the claims asserted againstState Farm were moot, it could not rule on the substantive meritsof State Farm's motion for summary judgment on those claims. Because the circuit court did not rule upon the substantivemerits of State Farm's motion, we decline to do so here.

IV. BBW'S CROSS-APPEAL

BBW filed a cross-appeal "relative to the dismissal of itscounterclaim against" Kubasak, plaintiff, and Globaltech, as wellas its third-party complaint against State Farm. BBW argues that"[s]hould this Honorable Court reverse the Trial Court's orderdismissing plaintiff's causes of action, BBW's counterclaims andthird-party claims should be reinstated, since it filed thenecessary cross-appeal to vest the court with jurisdiction torule on the dismissal of its counterclaims and third-partyclaim." BBW also argues that because neither Kubasak, StateFarm, nor Globaltech filed cross-appeals, they have waived anyright to have their counterclaims reinstated.

Initially, this court has no jurisdiction over BBW's cross-appeal because it poses a hypothetical question: If this courtshould reverse the circuit court's order dismissing plaintiff'scauses of action, whether BBW's counterclaims and third-partyclaims should be reinstated? It is axiomatic that the existenceof an actual controversy is an essential prerequisite toappellate jurisdiction, and courts of review will generally notdecide abstract, hypothetical, or moot questions. Steinbrecherv. Steinbrecher, 197 Ill. 2d 514, 523, 759 N.E.2d 509 (2001). Because the resolution of BBW's argument depends upon theresolution of plaintiff's appeal, this court has no power toconsider it.

Moreover, even if this court has jurisdiction, BBW's filingof a cross-appeal from the judgment of the circuit court wasimproper. In general, a party cannot complain of error that does not prejudicially affect it, and one who has obtained byjudgment all that has been asked for in the trial court cannotappeal from that judgment. Illinois Central R.R. Co. v. Accident& Casualty Co. of Winterthur, 317 Ill. App. 3d 737, 743, 739N.E.2d 1049 (2000). Even though a successful party may not agreewith the reasons, conclusions or findings of the lower court, itis improper to provide that successful party with a forum in areviewing court. Geer v. Kadera, 173 Ill. 2d 398, 414, 671N.E.2d 692 (1996). Here, there was no part of the circuitcourt's ruling that was adverse to BBW. The court did not ruleon the substance of any motion or claim against BBW; it merelyruled that once plaintiff's claims were dismissed, the rest wasmoot. Thus, we dismiss BBW's cross-appeal as improper. Wereverse the decision of the circuit court and reinstate allclaims that the court either dismissed or found were moot due tothat dismissal and all motions for summary judgment that werepending before the circuit court. On remand, the circuit courtmay, within its discretion, allow the parties the opportunity torefile their motions for summary judgment in light of thisruling, file additional memoranda in support and in opposition tothose motions, grant additional time extensions, and/or permitany other docketing requests it sees fit.

Reversed and remanded with instructions.

REID, P.J., and GREIMAN, J., concur.

1. This language taken from Robert Frost's poem "The Road NotTaken" (1915).