2023 IL App (1st) 221089-U 

 

No. 1-22-1089

Order filed August 14, 2023. 

First Division

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

______________________________________________________________________________ 

RONALD KOLNICKI, ) Appeal from the 

 ) Circuit Court of

 Plaintiff-Appellant, ) Cook County 

 ) 

v. ) 

 ) No. 2019 CH 7711 

THOMAS J. DART, in His Official Capacity as ) 

Sheriff of Cook County; THE COOK COUNTY ) 

SHERIFF’S MERIT BOARD; and COOK ) The Honorable 

COUNTY, as Indemnitor, ) Caroline Kate Moreland, 

 ) Judge Presiding.

 Defendants-Appellees. ) 

_____________________________________________________________________________ 

 

PRESIDING JUSTICE LAVIN delivered the judgment of the court.

Justices Pucinski and Coghlan concurred in the judgment. 

ORDER

¶ 1 Held: We affirm the circuit court’s judgment confirming the decision of the Cook County 

Sheriff’s Merit Board, terminating plaintiff from his employment as a correctional sergeant

because the decision was not against the manifest weight of the evidence. We dismiss plaintiff’s

appeal for lack of this court’s jurisdiction as it relates to our review of the lower court’s 

December 16, 2019, order dismissing his claim challenging the Board’s composition, since

plaintiff did not file an appeal from that order within 30 days after the court entered a finding 

pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). 
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¶ 2 Ronald Kolnicki, a former correctional sergeant, appeals from the circuit court’s order 

confirming the decision of the Cook County Sheriff’s Merit Board (Board), terminating his 

employment by the Sheriff of Cook County, Thomas J. Dart (Sheriff). 

¶ 3 On appeal, Sergeant Kolnicki argues that the Board’s findings were not supported by the 

evidence, that his termination was not for just and sufficient cause, and that the Board was

improperly constituted at the time of his administrative proceedings. We disagree, and for the 

reasons that follow, we affirm in part and dismiss in part. 

¶ 4 I. BACKGROUND

¶ 5 In February 2016, the Sheriff filed a complaint with the Board seeking Sergeant

Kolnicki’s termination after Sergeant Kolnicki witnessed Anthony Nuniz, a detainee, being 

assaulted by James Micetich, a correctional officer under Sergeant Kolnicki’s supervision. 

Specifically, the complaint alleged that Sergeant Kolnicki failed to intervene to stop Officer

Micetich from using excessive force on Nuniz, that Sergeant Kolnicki failed to notify his 

supervisor of the alleged assault, and that Sergeant Kolnicki failed to properly document the 

incident, in violation of his duties as a correctional sergeant. The complaint alleged that Sergeant

Kolnicki’s actions violated several orders, rules, and regulations of the Cook County Department

of Corrections (Department) and the Board. 

¶ 6 The Board, comprised of Chairman James P. McNally, Vice-Chairman Byron Brazier,

Secretary John Dalicandro, and members Kim R. Widup, Vincent T. Winters, Juan L. Baltierres,

Patrick M. Brady and Kimberly Pate Godden, conducted hearings on May 22, 2017, May 23, 

2017, July 6, 2017, and September 14, 2017. The following evidence was adduced at those 

hearings. 
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¶ 7 Sergeant Kolnicki was hired as a correctional officer by the Sheriff on November 26,

2007, and was later promoted to the position of a correctional sergeant on August 21, 2011. He

was assigned to the Cook County Department of Correction’s Cermak Facility in 2014. Sergeant

Kolnicki’s office was located in the basement at Cermak, near the emergency room, where

detainees are taken for medical examinations and treatment. Correctional sergeants, like Sergeant

Kolnicki, wear white uniform shirts, whereas correctional officers of lower ranks wear blue

uniform shirts. As a correctional sergeant, Sergeant Kolnicki was responsible for directing and

supervising correctional officers, observing their job performance, and taking corrective action

when necessary. He was also responsible for ensuring all applicable Sheriff’s rules, regulations, 

policies, procedures, and orders, were adhered to by subordinates. Furthermore, Sergeant

Kolnicki was tasked with recommending disciplinary action for any subordinate found to have 

violated those rules, regulations, policies, procedures, and orders, and ensuring written incident 

reports were created, among other things. 

¶ 8 Around 11 p.m. on May 26, 2014, Sergeant Kolnicki was on duty in the emergency room 

at Cermak when he met with Sergeant Hugh Walsh regarding an inmate, Donald Lee, who was

being involuntarily admitted to the hospital. Meanwhile, an altercation broke out between two

other inmates, Lovell Williams and Nuniz, both housed in Division II at Cermak. Williams and

Nuniz were subsequently taken to the emergency room at Cermak where they were evaluated.

Following his medical evaluation, Nuniz was handcuffed and taken to the waiting area in the 

basement. At that time, Officers Micetich and Hernan Mosquera were assigned to the waiting

area. 

¶ 9 Sometime thereafter, Nuniz became disruptive and refused to comply with Officers

Micetich’s and Mosquera’s orders, leading them and a few other officers to grab Nuniz by the 
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neck and shoulder to try and throw him down on the ground. According to several witnesses,

Officer Micetich then proceeded to beat Nuniz, twisting Nuniz’s elbow, kicking and stepping on 

Nuniz’s back, and punching Nuniz in the face. According to Williams, he heard a bone crack

when Officer Micetich hit Nuniz in the face, observing that Nuniz’s face “swole [sic] up as big 

as a melon.” Officer Micetich then cuffed Nuniz’s hands behind his back and his legs under a 

bench (also known as “hogtying”). Nuniz testified that Officer Micetich informed him there were

no security cameras at Cermak. 

¶ 10 Several correctional officers witnessed the assault, including Officers Anthony Owens

and Jacqueline Myers. Detainee Williams was also present. According to some witnesses,

Sergeant Kolnicki was standing about 15 to 20 feet away from Nuniz and Officer Micetich.

Sergeant Kolnicki had an obstructed view of them and was wearing his white sergeant shirt,

talking to a female officer. Yet, Sergeant Kolnicki did not intervene to stop the assault of Nuniz, 

did not reprimand any of the officers involved in it, and did not report the incident to anyone. 

Moreover, according to Officer Owens, he asked Sergeant Kolnicki if he should file an incident 

report since he saw the assault of Nuniz, but Sergeant Kolnicki told him that he “didn’t need to

do that.” 

¶ 11 At some point during Sergeant Kolnicki’s shift, a paramedic told him that Nuniz needed

to return to the emergency room for additional treatment. Notwithstanding, Nuniz was not given 

medical attention at that time, even though he appeared seriously injured. Instead, he was sent

back to Division II, where he reported the assault to the lieutenant on duty, Sara Soto. Nuniz was

then taken back to the Cermak emergency room where he was diagnosed with a concussion and a 

fractured eye socket orbital wall, leading him to be transported to John Stroger Hospital for 
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further treatment. Aside from those injuries, Nuniz also sustained various other injuries to his 

body, and he continues to suffer long-term effects from the assault, including vision problems. 

¶ 12 Following the assault of Nuniz, Sergeant Kolnicki did not recommend any discipline for 

the officers involved in the assault, even though they were under his supervision at the time.

Moreover, Sergeant Kolnicki did not file an incident report or a witness statement concerning the 

assault, nor did he instruct Officer Micetich to do so, as required by the Sheriff’s orders and

rules. In fact, Sergeant Kolnicki failed to report the assault at all to anyone. Instead, it was

Lieutenant Soto who filed an incident report. As stated, she spoke to Nuniz immediately after he 

was assaulted, then reported the assault to Superintendent Hugh Walsh, who instructed her to

send Nuniz back to the Cermak emergency room for more treatment. 

¶ 13 Superintendent Walsh subsequently asked Sergeant Kolnicki about the incident, but 

Sergeant Kolnicki responded that nothing had happened. Superintendent Walsh, however, had

observed Nuniz in the Cermak emergency room with a black eye that was swollen shut. 

Additionally, when Superintendent Walsh met with Nuniz regarding the assault, Nuniz initially

asked him, “are you going to kick my ass, too?” Walsh responded “no,” indicating that he was

there to discuss the assault. Although Sergeant Kolnicki’s logbook indicated he was not present

in the Cermak basement when the incident occurred, Nuniz confirmed that Sergeant Kolnicki 

was the sergeant who was present during the assault. 

¶ 14 While Nuniz was at Stroger Hospital recovering from his injuries, the Sheriff’s

Department of Investigations began a criminal investigation into the assault. Gregory Ernst, the 

Deputy Director of that Department, was assigned to interview Nuniz about the assault. Director

Ernst worked in conjunction with the Federal Bureau of Investigation (FBI), which was also

investigating the assault. Director Ernst and his partner, Ryan Killacky, interviewed Nuniz at
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Stroger on May 27, 2014, and photographed his injuries, which showed severe bruising around 

his eye and over much of his body. In a second interview conducted on May 29, 2014, Nuniz 

identified Officers Micetich and Mosequera in lineups as being involved in the assault, and more

specifically, he identified Officer Micetich as the one who caused his injuries. Nuniz also

identified Sergeant Kolnicki in a third lineup as the sergeant who was present during the assault.

Finally, Nuniz identified Officers Owens and Meyers as being present during the assault as well. 

¶ 15 The next day, on March 30, 2014, Director Ernst interviewed four detainees (Dylan

Smith, Joseph Kalamaris, Brian McKenzie and Michael Raggs) who all stated that Sergeant

Kolnicki was present during the assault of Nuniz. Meanwhile, the FBI’s investigation into the 

assault proceeded. FBI Agents Eugene Jackson and Courtney Corbett interviewed Sergeant

Kolnicki, asking him about the assault of Nuniz. Sergeant Kolnicki indicated that he was

unaware of and did not witness any use of force against Nuniz, did not call medical staff at

Cermak to let them know that Nuniz was returning to the emergency room for treatment, and did 

not receive any paperwork regarding a use-of-force incident involving Nuniz. When Agent 

Corbett informed Sergeant Kolnicki that his statements contradicted those obtained by other 

witnesses, Sergeant Kolnicki responded that the other statements were false and that he did not

wish to change his own statements to the FBI agents. 

¶ 16 We note that FBI interviews of Officers Mosquera and Meyers revealed that those 

officers, along with Officers Micetich and Cruz, had met twice for breakfast before their

respective interviews with the FBI. Additionally, Officer Micetich eventually pled guilty to

federal civil rights violations stemming from the incident. 

¶ 17 In any event, the Office of Professional Review (OPR) also conducted an administrative

investigation into the assault of Nuniz. Investigator Tia Parks Jefferson was assigned to
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investigate the assault and noted that Sergeant Kolnicki had not submitted a use-of-force report 

or any witness statement concerning the assault. Likewise, Investigator Parks Jefferson observed 

that Sergeant Kolnicki was the only sergeant assigned to Cermak for the 11:00 p.m. – 7:00 a.m.

shift the night/day that Nuniz was assaulted. Sergeant Kolnicki claimed he was with

Superintendent Walsh when Nuniz was assaulted around 11:35 p.m., but Superintendent Walsh

stated during his OPR interview that he had already left Cermak when the assault occurred. 

Additionally, while Sergeant Kolnicki claimed that his logbook and the testimony of two officers

present during the assault stating Sergeant Kolnicki was not there sufficiently established that he 

did not witness the incident, this was contradicted by the testimony of three witnesses who were

all present during the assault, among other evidence. 

¶ 18 Moreover, Sergeant Kolnicki was unable to account for his actions between 11:35 p.m.

on May 26, 2014, and 12:07 a.m. on May 27, 2014. Sergeant Kolnicki’s statements to

Investigator Parks Jefferson continued to contradict both his earlier statements and those given 

by other witnesses, leading Investigator Parks Jefferson to conclude that Sergeant Kolnicki was

“not entirely truthful during his interviews with the FBI and OPR.” In conclusion, Investigator 

Parks Jefferson found that:

“Sergeant Kolnicki was present during the incident and failed to intervene to stop

the use of unreasonable force, failed to ensure the proper paperwork was submitted,

failed to make the proper notifications and failed to provide the detainee with medical

attention after the incident.” 

¶ 19 Based on the foregoing evidence, and after assessing the credibility of the witnesses, the 

Board found that Sergeant Kolnicki had violated Sheriff’s Order 11.2.1.0 (VIII)(C), (D)(2), 

requiring, as relevant here, correctional sergeants to intervene during excessive force incidents 
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and to report such incidents by providing a witness statement to the responding supervisor before

the end of the sergeant’s shift. Additionally, the Board found that Sergeant Kolnicki had violated

Sheriff’s Order 11.2.2.0(V)(C)(2), (3), (D)(3), requiring supervisors who have been notified of a 

use-of-force incident to follow all department protocols before the end of their shift, including 

ensuring medical care is provided to all parties, notifying the watch commander and the Cook 

County Communication Center of the incident, and photographing or video recording everyone 

involved in the incident with or without injuries, among other things. The Board further found 

that Sergeant Kolnicki had violated Sheriff’s Order 11.2.20.0(VI)(D)(25), requiring employees to

cooperate and be truthful with external and/or internal agencies in an investigation of a criminal

or civil matter. 

¶ 20 The Board likewise found that Sergeant Kolnicki had violated Department General

Orders 9.2.1 and 24.9.1.0, setting forth the procedures and requirements for, as relevant here,

sergeants to notify and/or report excessive force incidents that occurred during their shift.1

Finally, the Board found that Sergeant Kolnicki had violated article X, paragraph B, of the 

Board’s rules and regulations by violating the aforementioned orders. In reaching its conclusion, 

the Board noted that, while the facts were contested by way of some conflicting evidence, “the

weight of the evidence show[ed] through eyewitness identifications that [Sergeant Kolnicki] was

present at the time of the incident with Nuniz and [Officer] Micetich.” Consequently, the Board

issued its decision terminating Sergeant Kolnicki from his employment on May 24, 2019.2

¶ 21 The next month, Sergeant Kolnicki filed, as relevant here, a complaint in the circuit court

of Cook County, seeking administrative review of the Board’s decision, which, he argued, was

1

Sergeant Kolnicki’s brief incorrectly identifies the General Order as 24.8.1.0, rather than

24.9.1.0. 

2

The Board ordered Sergeant Kolnicki’s termination effective February 2, 2016. 
No. 1-22-1089 

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against the manifest weight of the evidence. Sergeant Kolnicki also asserted, for the first time,

that the Board was invalidly constituted during his administrative hearings. The Sheriff moved to

dismiss Sergeant Kolnicki’s claim challenging the Board’s composition, arguing that his claim

was untimely. The circuit court ultimately agreed and dismissed Sergeant Kolnicki’s claim,

concluding the de facto officer doctrine, which validates appointees’ acts later found to be 

deficient, precluded Sergeant Kolnicki’s untimely challenge the Board’s composition.3 See

Acevedo v. Cook County Sheriff’s Merit Board, 2019 IL App (1st) 181128, ¶ 20 (noting that the 

de facto officer doctrine confers validity upon acts performed by persons acting under the color 

of official title even though their authority is subsequently deemed improper). 

¶ 22 Sergeant Kolnicki later moved, unsuccessfully, to reconsider the court’s ruling as to that

claim. Sergeant Kolnicki then obtained a finding pursuant to Illinois Supreme Court Rule 304(a) 

(eff. Mar. 8, 2016) to allow the immediate appeal of the lower court’s dismissal of his claim

challenging the Board’s composition, but he never filed an appeal from that order. 

¶ 23 On June 24, 2022, the circuit court dismissed Sergeant Kolnicki’s remaining claims and

affirmed the Board’s decision terminating Sergeant Kolnicki from his employment. In reaching

its conclusion, the court found there was just cause to terminate Sergeant Kolnicki and that the 

Board’s decision was not arbitrary or capricious. This appeal followed. 

¶ 24 II. ANALYSIS

¶ 25 A. The Board’s Decision

¶ 26 We first address Sergeant Kolnicki’s argument that the Board’s decision to terminate him 

was against the manifest weight of the evidence. 

3

We note that after the circuit court’s initial ruling, the case was remanded to the Board for

compliance with the Open Meetings Act.
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¶ 27 The Board’s decision is an administrative decision and judicial review is governed by 

Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2018)). In reviewing an

administrative agency’s decision, we review the decision of the agency, not the decision of the 

circuit court. Rios v. Cook County Sheriff’s Merit Board, 2020 IL App (1st) 191399, ¶ 29. “We

are mindful that an administrative agency’s findings and conclusions on questions of fact are

deemed prima facie true and correct.” Messer & Stilp, Ltd. v. Department of Employment 

Security, 392 Ill. App. 3d 849, 855 (2009). Additionally, we will not reverse an agency’s

decision unless it is against the manifest weight of the evidence, i.e., only when the opposite 

conclusion is clearly evident. Rios, 2020 IL App (1st) 191399, ¶ 29.4 Where, as here, the record

supports the agency’s decision, we must affirm that decision. Rios, 2020 IL App (1st) 191399, 

¶ 29. 

¶ 28 The record in this case supports the Board’s decision to terminate Sergeant Kolnicki 

because it contains sufficient evidence showing that Sergeant Kolnicki violated Sheriff’s Orders

11.2.1.0 (VIII)(C), (D)(2), 11.2.2.0 (V)(C)(2), (3), (D)(3) and 11.2.20.0(VI)(D)(25) when he 

witnessed the use of excessive force against Nuniz, failed to both intervene to stop the assault of 

Nuniz and report it, and when he failed to provide a truthful account of the events that unfolded 

that night/day. By violating those orders, the Board found that Sergeant Kolnicki necessarily

violated Department General Orders 9.2.1 and 24.9.1.0, and article X, paragraph B, of the 

Board’s rules and regulations, since those orders, rules, and regulations require sergeants, like

4

Sergeant Kolnicki incorrectly asserts in his brief that both the manifest weight and clearly

erroneous standards of review apply to our review of the Board’s decision. Because Sergeant Kolnicki has

not identified a question of law involved on appeal, and we have not found one, only the manifest weight 

standard applies. See Messer & Stilp, Ltd., 392 Ill. App. 3d at 855-56 (noting that the manifest weight

standard applies where, as here, “our review is limited to ascertain whether such findings of fact are

against the manifest weight of the evidence”). 
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Sergeant Kolnicki, to report any excessive use-of-force incidents and he failed to do so in this

case. 

¶ 29 While Sergeant Kolnicki asserts, as he did below, that his logbook and the testimony of

two officers present during the assault who stated Sergeant Kolnicki was not there, established

he did not witness the assault of Nuniz, three witnesses who were present all testified that

Sergeant Kolnicki was there and observed the assault of Nuniz. Sergeant Kolnicki claims the 

testimony of those witnesses was not credible, but he has not provided any support for that claim.

Furthermore, as set forth, the FBI’s investigation uncovered four witnesses who all stated that

Sergeant Kolnicki was present during the assault of Nuniz (see supra ¶¶ 14-15). Regardless, the 

Board found the testimony credible and ultimately relied on it in making its decision to terminate

Sergeant Kolnicki. Because the record contains sufficient evidence supporting the Board’s 

decision, as detailed above, that decision must be affirmed. See Rios, 2020 IL App (1st) 191399, 

¶ 29. 

¶ 30 Based on the foregoing, we need not address Sergeant Kolnicki’s claim that his 

termination was “not for just and sufficient cause,” as he has simply set forth the same arguments 

that we already addressed above. 

¶ 31 B. The Board’s constituency 

¶ 32 Next, Sergeant Kolnicki argues that, even if the Board’s decision was not against the 

manifest weight of the evidence, that decision should be invalidated because the Board was

unlawfully constituted at the time of his administrative proceedings. 

¶ 33 In response, defendants assert that Sergeant Kolnicki has forfeited the issue since he 

elected to not appeal the circuit court’s dismissal of his constituency claim after he obtained a 

Rule 304(a) finding (see supra ¶ 22) that there was no just reason for delaying either
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enforcement or appeal or both. Forfeiture aside, defendants assert that the circuit court properly 

dismissed Sergeant Kolnicki’s claim because the Board’s final decision terminating Sergeant

Kolnicki’s employment was not made until after the Board had been reconstituted in accordance

with Public Act 100-562, § 5 (eff. Dec. 8, 2017); thus, Sergeant Kolnicki was not affected by the 

Board’s allegedly unlawful composition. Defendants further assert that the de facto officer

doctrine precluded Sergeant Kolnicki’s untimely claim because Sergeant Kolnicki did not object

to the Board’s composition until more than a year after he was terminated by the Board. 

¶ 34 Sergeant Kolnicki replies that the Board’s decision is void, and therefore, can be 

challenged at any time regardless of forfeiture. On the merits, Sergeant Kolnicki argues that, 

even if the Board had been properly reconstituted when it rendered its decision terminating him,

the Board’s decision is still void because the Board was invalidly constituted during his 

administrative hearings. 

¶ 35 Initially, although the parties have not addressed the issue, we must determine whether

we have jurisdiction to review Sergeant Kolnicki’s challenge to the Board’s constituency. Rule

304(a) provides, in relevant part, that “[i]f multiple parties or multiple claims for relief are

involved in an action, an appeal may be taken from a final judgment as to one or more but fewer

than all of the parties or claims only if the trial court has made an express written finding that

there is no just reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a). 

That rule further provides that Illinois Supreme Court Rule 303 (eff. July 1, 2017) governs “[t]he

time for filing a notice of appeal” and that “[i]n computing the time provided in Rule 303 for

filing the notice of appeal, the entry of the required finding shall be treated as the date of the 

entry of final judgment.” Ill. S. Ct. R. 304(a). It is well-settled that Rule 303 requires an appeal to

be filed within 30 days of the entry of a final judgment or order. Ill. S. Ct. R. 303(a)(1). 
No. 1-22-1089 

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¶ 36 Here, the circuit court dismissed Sergeant Kolnicki’s claim challenging the Board’s 

composition on December 16, 2019. The court denied Sergeant Kolnicki’s motion to reconsider

that judgment on September 29, 2021. The court then granted Sergeant Kolnicki’s motion for a 

Rule 304(a) finding on November 30, 2021. Pursuant to Rule 304(a), we must treat the entry of 

the court’s Rule 304(a) finding as the date of the entry of the final, appealable order. Thus, as

defendants have correctly observed, Sergeant Kolnicki had to appeal the dismissal of his claim

challenging the Board’s composition within 30 days of the lower court’s November 30, 2021, 

order. Because Sergeant Kolnicki did not file an appeal within 30 days of that order, his instant 

appeal of that particular issue is untimely and must be dismissed for lack of this court’s 

jurisdiction. See Farmar v. Crane, 32 Ill. App. 3d 383, 391 (1975) (dismissing the plaintiff’s

cross-appeal because the plaintiff did not appeal the order at issue until more than 30 days after

the Rule 304(a) finding was entered); see also Elg v. Whittington, 119 Ill. 2d 344, 354 (1987) 

(noting that a Rule 304(a) finding “places the piecemeal appellant in a somewhat worse position 

than the usual appellant, who need not file a notice of appeal until 30 days after the denial of a 

motion attacking the original judgment,” but “this difference in treatment is justified by the fact

that a Rule 304(a) appeal is an exception to the general policy disfavoring piecemeal appeals”). 

¶ 37 Finally, to the extent Sergeant Kolnicki asserts a void order may be directly or

collaterally attacked at any time in any court, that is only true when the party attacks an allegedly

void order in a court that itself has jurisdiction. Our supreme court has explained that, while a 

void order generally may be attacked at any time in any court, “[t]his legal proposition *** does 

not act to confer appellate jurisdiction on a reviewing court if such jurisdiction is otherwise 

absent.” EMC Mortgage Corporation v. Kemp, 2012 IL 113419, ¶ 15. In other words, “the rule 

allows a party the ability to always raise the issue of whether an order is void in an appeal where
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appellate jurisdiction exists and the case is properly before the court of review.” As we have 

pointed out, we lack jurisdiction to review the lower court’s December 16, 2019, order

dismissing Sergeant Kolnicki’s claim challenging the Board’s composition, because Sergeant

Kolnicki did not appeal that order within 30 days of the court’s November 30, 2021, order

containing the Rule 304(a) finding. 

¶ 38 III. CONCLUSION

¶ 39 For the reasons set forth above, we affirm the circuit court’s judgment confirming the 

Board’s decision in this case. We dismiss for lack of this court’s jurisdiction the portion of 

Sergeant Kolnicki’s appeal that relates to the court’s December 16, 2019, order dismissing his 

claim challenging the Board’s constituency. 

¶ 40 Affirmed in part; dismissed in part.