author: JUSTICE GEIGER

text:
      In re PETITION OF VOTERS (Patricia Nied et al., Petitioners-Appellees, v. The Du Page County Board of Election Commissioners, Defendant; Clifford Carney et al., Objectors-Appellants).
    Second District
    No. 2—92—1079
    Opinion filed October 14, 1992.

      Burton S. Odelson, Mathias W. Delort, and Keri-Lyn J. Krafthefer, all of Odelson & Sterk, Ltd., of Evergreen Park, and Thomas C. Kelleghan, of Wheaton, for appellants.
    Walter P. Maksym, Jr., of Walter P. Maksym & Associates, of Oak Brook, for appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

The objectors, Clifford Carney et al., appeal from the trial court’s (1) denial of their motion to dismiss, (2) denial of their objections, and (3) order requiring the proposition of the petitioners, Patricia Nied et al., to be placed on the ballot. We reverse.

This case arises from the petitioners’ presentation of voter petitions (the petition) to place a referendum to abolish the Du Page County Board of Election Commissioners on the November 3, 1992, ballot. The objectors moved to quash and dismiss. The court heard the objections and ordered the proposition placed on the November 3,1992, ballot.

On appeal, the objectors raise five objections to the petition. They assert that each of the five is independently sufficient to invalidate the petition. Because we find it is decisive, we address only their argument that the petition is invalid because the petitioners and the court failed to publish timely notice, as required by section 28 — 4 of the Election Code (the Code) (Ill. Rev. Stat. 1991, ch. 46, par. 28 — 4).

The petition was filed with the circuit court on August 17, 1992. On August 18, summons was served in the cause. The record shows no further action in the cause until September 1. On September 1, 1992, the circuit court held a hearing and ordered publication of notice of a September 8 hearing on the petition. Legal notice of the hearing was published September 3, 1992, in the Wheaton-Winfield-Glen Ellyn Herald.

Under section 28 — 4 of the Code, unless the specific statute authorizing ballot placement of a particular question provides otherwise, when objections to a petition filed with the circuit court are also required to be filed with the court, “the court shall (1) set a hearing on the petition, [and] (2) cause [newspaper] notice of such hearing to be published, as soon as possible after the filing of the petition but not later than 14 days after such filing and not less than 5 days before the hearing.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 46, par. 28 — 4.) Although the petitioners question whether section 28 — 4 is the proper section to set out the last day for the court to certify this ballot proposition, they do not question that the section 28 — 4 publication provision applies. Additionally, they admit that published notice was not given within 14 days after the filing of the petition, as required by section 28 — 4. The petitioners’ primary argument, then, is that their less-than-full compliance with the section 28 — 4 publication requirement is not dispository.

Initially, we reject without extended comment the petitioners’ lesser arguments. First, we do not find that the objectors waived their objections when they did not file them, in writing, within five business days after the petition was filed on August 17. Nothing within the Code article covering the manner of bringing this referendum question, article 6A, is inconsistent with the provision of Code section 28 — 4, that at the hearing on the petition, the court may entertain all objections properly presented on or before the hearing date (Ill. Rev. Stat. 1991, ch. 46, par. 28—4). (Cf. Ill. Rev. Stat. 1991, ch. 46, par. 10—8.) The court’s procedure here was in compliance with this provision of section 28—4.

Secondly, we reject the argument that the objectors’ motion to dismiss, based on the failure of timely publication of section 28 — 4 notice, could not properly succeed because it was not supported by an affidavit. The petitioners’ argument relies on section 2 — 619(a) of the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(a).) In this case, insofar as the basis for objection to the petition was the trial court’s own failure to publish statutory notice, even assuming for the sake of argument that the section 2 — 619 requirement applies here, we find no basis to invalidate the objection merely because it was presented to the trial court without an affidavit of nonpublication.

Third, we find no basis to rely on the petitioners’ argument that any order favoring the objections would be void because the objectors did not give notice either of their motion to dismiss or of their objections. The petitioners rely on the notice requirements for filing motions under Supreme Court Rule 104 (134 Ill. 2d R. 104) or the Eighteenth Judicial Circuit Rules (Rules of the 18th Jud. Cir. R. 6.04 (1989)). Section 28 — 4, with reference to Code section 10 — 8, sets out requirements for filing objections to this type of petition with the circuit court. Neither those sections, the petitioners’ argument, nor our research demonstrates that either Supreme Court Rule 104 or Eighteenth Circuit Rule 6.04 should control here.

Fourth, we reject the petitioners’ argument based on the fact that the election commission was personally served with the petition. We find that the completion of personal service is of no consequence in the matter of satisfaction of the publication requirements of section 28 — 4. The petitioners present no authority for their argument to the contrary and, thus, waive the point. (See 134 Ill. 2d R. 341(e)(7).) We note that section 28—4 creates no service requirement, but merely requires publication, thus providing for general notice, something not satisfied by personal service to one party.

We now turn to the primary emphasis of the petitioners’ argument. The core of that argument is that section 28 — 4’s publication requirement is directory, not mandatory. The petitioners ask that we consider this case within the context of the fundamental significance of liberal access to the ballot. In that context, they assert that the 14-day publication requirement of section 28 — 4 should be deemed directory, merely enacted to provide an orderly procedure as other Code provisions have been interpreted. (See People ex rel. Richter v. Telford (1968), 103 Ill. App. 2d 132, 137.) Further, they assert that despite the technical deficiency here, given the actual publication of notice five days before the hearing, there was substantial compliance with section 28—4 and the trial court’s jurisdiction was unaffected. Lastly, they argue that the failure of the court to act in conformance with the statutory schedule cannot disenfranchise the voters and does not divest the court of its jurisdiction. See Reynolds v. Conti (1971), 132 Ill. App. 2d 505; Havens v. Miller (1981), 102 Ill. App. 3d 558; Pullen v. Mulligan (1990), 138 Ill. 2d 21.

In beginning our analysis, we acknowledge the substantial right of ballot access. (Welch v. Johnson (1992), 147 Ill. 2d 40, 56.) Also, however, we distinguish the case of voters attempting to place a public issue question on the ballot from the case of an individual person attempting to be placed as a candidate on a ballot. In their presentation, the petitioners have included no authority where partial statutory compliance was deemed sufficient in a case testing the propriety of placing a public referendum on the ballot.

As the objectors note, our supreme court has rejected ballot access for citizen-initiated referenda that did not meet strict legal requirements. (See Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453; Lousin v. State Board of Elections (1982), 108 Ill. App. 3d 496; Chicago Bar Association v. State Board of Elections (1990), 137 Ill. 2d 394.) Considering, for example, the possibility that the presentation of a referendum might create the expense of an additional election, a possibility that does not exist in the case of naming a candidate on a scheduled ballot, we find both a significant difference between these two categories of cases and a proper basis for a somewhat different analysis regarding placing of referenda.

With that in mind, we turn to statutory analysis. In deciding whether a statute is directory or mandatory, the courts must look to the legislative intent. The initial reference must be to the statutory language itself. (Bolger v. Electoral Board (1991), 210 Ill. App. 3d 958, 959.) In the case of section 28 — 4’s publication requirement, the legislature used the operative terms “shall,” “not later than,” and “not less than.” (Ill. Rev. Stat. 1991, ch. 46, par. 28—4.) Those terms may tend to reveal that the legislature intended a mandatory provision. See Bolger, 210 Ill. App. 3d at 960-61.

Furthermore, a finding of an intended mandatory provision is supported by the legislature’s initial direction in section 28 — 4 that notice shall be published “as soon as possible.” In contrast to that clearly directory choice of language, the section’s demand that notice “shall” be published in “not later than 14 days after filing” is strongly stated.

Considering the supreme court’s history of disapproving referendum proposals not in strict compliance with applicable requirements, the absence of authority that characterizes the timely publication requirement at issue as directory, plus the strong language of section 28 — 4, we hold that the timely publication requirement here is mandatory.

In reaching our conclusion, we note that this is not a case where the legislature’s apparent goal of timely general notice to the public was accomplished by some legally cognizable alternative approach. (Cf. Havens v. Miller (1981), 102 Ill. App. 3d 558, 565.) Additionally, we note that the statute’s direction that it is the court that shall publish notice does not nullify the requirements of the Code or estop the objectors from objecting to invalid petitions. (See Havens v. Miller (1981), 102 Ill. App. 3d 558, 569.) The petitioners were in a position to promptly present the court with a proper order and, thus, be involved in timely completion of the required notice.

Based on the insufficiency of notice, the objectors’ objections should have been sustained; the ballot question raised by the petition may not be placed for public consideration in the upcoming election on November 3, 1992. Given our conclusion on the fatal insufficiency of the notice given on the petition, we need not address the remaining arguments on the timeliness of certification, the number of petition signatures, and the wording of the referendum question presented.

Based on the foregoing, we reverse the judgment of the circuit court of Du Page County. We remand the cause with instructions that the trial court shall enter an appropriate order, to expeditiously remove the petitioners’ ballot question from consideration on the November 3 ballot.

Reversed and remanded with instructions.

INGLIS, P.J., and DOYLE, J., concur.


source: Caselaw Access Project

author: JUSTICE McCORMICK

license: Public Domain

text:
    EUGENE STEMEN et al., Plaintiffs-Appellees, v. AVON PRODUCTS, INC., Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—0529
    Opinion filed August 11, 1992.

      Gorham, Metge, Bowman & Hourigan, of Chicago (Robert J. Hourigan and Bruce C. Spitzer, of counsel), for appellant.
    Drumke & Patterson, Ltd., of Chicago (Robert B. Patterson and Danielle M. Jaeschke, of counsel), for appellees.
   JUSTICE McCORMICK

delivered the opinion of the court:

Eugene Stemen, an over-the-road truck driver, sustained injuries when the door of a trailer he was inspecting closed on him in a lot owned by Avon Products, Inc. (Avon). He had been unable to use the side latch to keep the door open because the trailers were parked too close together in the lot. He and his wife sued Avon for negligence in operation of the lot. A jury found the parties equally negligent, and it found that plaintiffs sustained damages of $450,000. The trial court entered judgment on the verdict, reducing the damages by plaintiff’s 50% comparative negligence, and defendant appeals.

On March 14, 1983, after plaintiff dropped off a loaded trailer at defendant’s plant in Glenview, plaintiff’s dispatcher told him to pick up an empty trailer in defendant’s lot.

Plaintiff noticed damage to the upper right comer of the trailer he was to pick up. The outside of the trailer had caved in and a hunk of metal protruded four inches from the trailer. Plaintiff opened the right rear door of the trailer, which must be opened first because it overlaps the left door. He found that he could not swing the door all the way open to use the latch on the right side of the trailer to latch the door open because the trailer was parked too close to the trailer next to it. He looked around for a wire or a board to hold the door open, but he did not find anything. He inspected the inside of the trailer. As he was stepping down from the trailer, facing its inside, the door swung around and hit his back and the back of his head and neck. He has been physically unable to work as a track driver since the accident, but he has found other work at much lower pay. He has also paid substantial medical bills for treatment of the injury.

At trial James Omduff, the manager of defendant’s transportation department in Glenview, testified that the latches on the sides of trailers are designed “[t]o keep the doors from swinging, generally when [the trailers] are in motion.” He agreed that the “latch is there also to prevent the doors from swinging when the trailer is stopped,” to prevent the door from injuring people working near the door. He admitted that March is not a busy month, and that when plaintiff came to pick up the empty trailer, the trailers could have been separated by four feet to allow the doors to swing all the way open to the latch. He also agreed that the trailers could have been parked at an angle to the side of the lot, as the trailers in that lot had been parked that way at times in the past. He agreed that if trailers were parked that way, the doors could have been latched open. He knew that damaged trailers were parked in the lot at times and that drivers picking up trailers generally inspect them. He did not know of any special procedures drivers would use for inspecting damaged trailers.

Omduff testified that he expected drivers to take various steps to protect themselves from swinging doors. Drivers could pull the trailers out, or back them up far enough to permit the doors to swing to the latch or they could use cords or baling wire to hold the doors. The arrangement of trailers in defendant’s lot was a standard arrangement. When truckers dropped off trailers, the yard was normally “empty of people.” The yardman “might be anywhere on through the process. He may be moving trailers. He might have been [in defendant’s other lot] across the street.”

Plaintiff testified that there may have been room to back the trailer onto the grass towards a fence to latch open the door before inspecting it, but he would not want to move a damaged trailer before inspection. He did not remember any trailer to the left of the trailer he picked up. Drivers would not normally open both the right and left doors, latch the left door open and latch the right door closed, to make an inspection. Drivers generally do not carry baling wire, and he had none with him. He did not ask anyone for help because inspection is a one-person job. There is no single prevalent pattern for parking empty trailers, but the pattern and spacing defendant used was not uncommon.

Roland Ruhl, a professor of engineering, testified as an expert for plaintiff that the side latch is designed to keep the door in a safe position because a swinging door is dangerous. Requiring drivers to inspect trailers parked in the manner defendant used, defeating the safety latch on the side of the trailer, is unreasonably dangerous. If a trailer is damaged, the driver should not move the trailer before determining the extent of the damage. The extent of the damage to the trailer is in doubt until the columns are inspected from inside the truck. There is no uniform manner for parking trailers.

Defendant argues that the jury verdict must be reversed because plaintiffs failed to prove that defendant owed them a duty. Defendant admits that plaintiff was its business invitee when he was injured on defendant’s property. Illinois has adopted section 343 of the Restatement (Second) of Torts (1965), which establishes that a landowner has a duty to exercise reasonable care to protect invitees from physical harm caused by

“ ‘a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it.’ ” Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 146, 554 N.E.2d 223, quoting Restatement (Second) of Torts §343 (1965).

Defendant does not deny that as a landowner it had the general duty to plaintiff to use reasonable care to keep its premises safe. In effect, defendant argues that the evidence cannot support a finding that defendant breached its admitted duty to plaintiff because the parking arrangement did not involve an unreasonable risk of harm.

“Nearly all human acts, of course, carry some recognizable but remote possibility of harm to another.” (W. Keeton, Prosser & Keeton on Torts §31, at 170 (5th ed. 1984).) To determine whether a risk is unreasonable, the court should take into account the likelihood of injury, the gravity of the threatened injury, the burden of guarding against the injury and the consequences of placing the burden on defendant. Smith v. Goldman (1977), 53 Ill. App. 3d 632, 634, 368 N.E.2d 1052; see W. Keeton, Prosser & Keeton on Torts §32, at 173 (5th ed. 1984).

Plaintiffs’ expert testified that the parking arrangement was unreasonably dangerous because it defeated the safety latch. As defendant points out, the risk of harm was relatively small because drivers picking up undamaged vehicles could move them prior to inspection, and some other drivers would have wire to secure the doors. Plaintiffs presented no evidence of the occurrence of similar accidents.

Ornduff’s testimony provides evidence that the cost to defendant of parking trailers so that the latch would be accessible was small under the circumstances of this case. He testified that the trailers could have been parked four feet apart, to allow the doors to latch open, when there were few trailers in the lot. In general, there were few trailers in the lot during March, and there were few there on the day that plaintiff was injured. Ornduff also said that trailers could have been parked at an angle with respect to the side of the lot. He did not say that either of these measures would have imposed any costs on defendant.

Where the burden of protecting against an injury is slight, even a remote danger of an accident of a sort which has never occurred before may be unreasonable. (Ward, 136 Ill. 2d at 154.) Here, although the likelihood of the injury was small, its gravity was considerable, and the burden on defendant of guarding against the injury was slight. The record does not show any untoward consequences of imposing on defendant a duty to keep trailers in a manner which allows drivers to latch the doors open for inspection prior to moving them. On balancing the risk of harm against the burden of protection, we agree with the trial court’s conclusion that defendant’s management of the parking area involved an unreasonable risk of harm.

The trial court’s holding finds support in Flath v. Madison Metal Services, Inc. (1991), 212 Ill. App. 3d 367, 570 N.E.2d 1218. There, the plaintiff was a truck driver who picked up a load from defendant and then attempted to secure the load while he was in the loading area of defendant’s building. Defendant had a sign notifying drivers to secure their loads outside the building, but defendant knew that many drivers secured their loads before moving. Plaintiff chose to secure his load from the driver’s side of his truck, despite the clutter on the ground to that side, while the ground on the passenger side of the truck was clear. Because of the clutter on the ground, plaintiff stood on the trailer, on the driver’s side, to secure the load. While securing the load, he fell. Defendant argued that the clutter on the driver’s side of the truck did not create an unreasonable risk of harm because the danger was obvious and the driver could have moved the truck before securing the load, or he could have secured the load from the other side of the truck. The appellate court found that the clutter was unreasonably dangerous, reasoning:

“Because obstructions prevented him from doing so from the ground, plaintiff was forced to secure the load while standing on the trailer bed, from which he fell, sustaining injuries. We find this is sufficient to conclude that the presence of defendant’s materials along the driver’s side of the loading area created an unreasonable risk of harm to plaintiff. That plaintiff might have been able to secure his load from the ground on the passenger side of the trailer, or by driving his truck forward out of the building, may reflect on the degree of plaintiff’s comparative fault, but does not make the obstruction any less dangerous.” Flath, 212 Ill. App. 3d at 373.

The reasoning of Flath is fully applicable to this case. Here, the jury’s verdict shows that it took defendant’s evidence into account in assessing plaintiff’s comparative negligence. The trial court properly concluded that defendant created an unreasonable risk of harm in violation of its duty to plaintiffs.

Even if the condition on defendant’s land involves an unreasonable risk of harm, defendant cannot be liable to invitees under section 343 of the Restatement (Second) of Torts for an obvious danger unless defendant “should expect that they *** will fail to protect themselves against it.” (Restatement (Second) of Torts §343 (1965).) Plaintiff concedes that he recognized the obvious danger from the unlatched door. He contends that defendant should have realized that drivers would not protect themselves against it.

Ornduff testified that he expected drivers to protect themselves from the danger of unsecured doors by moving the trailers before opening the doors or by using cords to hold the doors. Plaintiff decided not to move the trailer because of the apparent damage to the outside of the trailer, and he presented evidence that he would have risked further damage to the trailer if he moved it before determining the extent of the damage. Ornduff knew that at times damaged trailers were parked in defendant’s lot, and drivers picking up the trailers would inspect them. Plaintiff looked for baling wire to hold the door, but found none; he testified that drivers do not generally carry their own cords.

Defendant also argues that plaintiff could have used the left door, which he could have latched to the side of the truck. Plaintiff testified that drivers normally open only the right door to inspect a truck. To latch the left door to the side of the truck, plaintiff would have needed to open the right door, leaving it unsecured while he opened and latched the left door open, and then latched the right door closed. When his inspection was complete, he would need to open the right door, leaving it unsecured while he unlatched and then closed the left door, before closing the right door. The entire procedure would have cost plaintiff extra effort for a gain in safety that was marginal at best, since he would have stood in the path of the unsecured door for almost as much time as he actually spent in its path. There is evidence that defendant should have expected plaintiff not to take this extra precaution.

Defendant suggests that plaintiff could have asked the yardman to hold the door while plaintiff inspected the truck, but plaintiff testified that truckers would not make such a request, and inspection was a one-person job. Moreover, Ornduff testified that the yardman was normally not in the yard, so plaintiff could have spent considerable time looking for such assistance with no assurance that if he found the yardman, he would agree to hold the door. Again, there is evidence that defendant should have expected plaintiff to expose himself to a known, albeit remote, danger rather than pursuing the abnormal and potentially futile course defendant suggests. In this case, as in Flath, although the danger of the unsecured door was obvious and known to plaintiff, “defendant should have reasonably expected that plaintiff would proceed to encounter the danger because, to a reasonable man in plaintiff’s position, the advantages of doing so would have outweighed the apparent risk of doing so.” Flath, 212 Ill. App. 3d at 374.

Here, defendant attempts to distinguish Flath based on that court’s statement that “for reasons which do not clearly appear in the record, plaintiff felt the need to secure his load on the driver’s side.” (Flath, 212 Ill. App. 3d at 373.) In this case, plaintiff said that he opened only the right door for his inspection because this took less effort and drivers generally do their inspections that way. The failure of plaintiff in Flath to give any explanation for his preference cannot be grounds for awarding him damages and denying damages to plaintiff herein.

Defendant also argues that plaintiff’s negligence was a supervening cause of his injury, so that defendant’s negligence cannot be a proximate cause of the injury. “A proximate cause is one which produces the injury through a natural and continuous sequence of events unbroken by any effective intervening cause.” (Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 361, 493 N.E.2d 372.) An independent act of a third party may become an intervening proximate cause which breaks the causal connection between defendant’s act and plaintiff’s harm. (Kemp, 143 Ill. App. 3d 360.) However, “[t]he intervention of a new intervening cause does not necessarily relieve one of responsibility for a negligent act when the intervening cause of the injury is of such nature as could reasonably have been anticipated.” (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 90, 508 N.E.2d 1201.) Thus, as applied to this case, the requirement of proximate cause is covered by section 343(b) of the Restatement (Second) of Torts: Defendant is liable for injury caused by an obvious hazard only if it should reasonably have anticipated that plaintiff would expose himself to the possibility of this harm. Plaintiff has persuaded a jury that defendant should have expected him not to take the difficult safety measures which could have prevented this accident after defendant defeated the most obvious safety device, the latch on the side of the truck. Plaintiff has shown that defendant’s negligence was a contributing proximate cause of his injury.

Finally, defendant contends that the danger of a swinging door is inherent in plaintiff’s trade because many lots are arranged like defendant’s, with trailers too close together to allow use of side latches for doors. We disagree. Despite the common practice, the danger is not a necessary part of truck driving.

Defendant relies on Longnecker v. Illinois Power Co. (1978), 64 Ill. App. 3d 634, 381 N.E.2d 709, in support of its argument. The plaintiff in Longnecker was a lineman whose job involved climbing utility poles. Linemen were responsible for finding and informing defendant of poles which were not safe to climb, and they were instructed not to climb unsafe poles. The plaintiff saw evidence of weakness in the pole he was climbing, but he decided to proceed farther up the pole. In this case, by contrast, discovering improper or unsafe arrangements for parking trailers was not part of plaintiff’s job. Plaintiff would have been acting contrary to instructions if he failed to inspect the trailer because he did not see a safe way to do so; the plaintiff in Longnecker acted contrary to instructions when he proceeded up a pole after seeing evidence that it was unsafe.

Therefore, defendant’s arrangement of its parking lot created an unreasonable risk of harm which was not inherent in plaintiff’s trade. Although plaintiff acted negligently in failing to take precautions which would have prevented this injury, the evidence supports the jury’s finding that defendant violated its duty of care and that violation, together with plaintiff’s negligence, proximately caused plaintiff’s injuries. The judgment entered on the jury’s verdict is affirmed.

Affirmed.

HARTMAN, P.J., and SCARIANO, J., concur.


author: JUSTICE McNAMARA

text:
    JOSEPH KONIARSKI, Plaintiff-Appellant, v. EDWARD C. KVETKO et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—91—0017
    Opinion filed August 28, 1992.

      Susan E. Loggans and David S. Adduce, both of Susan E. Loggans & Associates, of Chicago, for appellant.
    Williams & Montgomery, Ltd., of Chicago (James K. Horstman, Barry L. Kroll, Lori E. Iwan, and Lloyd E. Williams, Jr., of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Joseph Koniarski, brought a four-count complaint against defendants, Edward Kvetko and Countryside Rebuilders, Inc., alleging violations of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) and negligence. Plaintiff’s first amended complaint alleged that he sustained injuries when he slipped and fell from a roof on the construction site. The court granted defendants’ motion for summary judgment on all counts, and plaintiff appeals from that order.

The following facts were adduced in the depositions and affidavits: On December 27, 1984, plaintiff, an electrician, fell from the roof of a house under construction in Long Grove, Illinois. Defendant Kvetko owned the house and was president and sole shareholder of defendant Countryside. In its answer, Countryside admitted that it was the general contractor on the construction site. Kvetko hired plaintiff as the electrical contractor, and plaintiff hired several electricians to work for him. Defendants paid plaintiff for all electrical work performed, and plaintiff supervised and paid the other electricians. Plaintiff determined his own work schedule, ordered all electrical supplies, and brought his own tools and ladders.

Plaintiff testified at his deposition that on the day of the accident, Kvetko instructed him to install lights under the soffit and told him that “it had to be done today.” Plaintiff asked Kvetko to move the scaffold for him, but Kvetko refused because he “didn’t have the laborers and he didn’t have the time.” Kvetko told plaintiff, “I don’t care how you do it, you do it and get up there.” Plaintiff did not work from the scaffold because it was not “where [Kvetko] wanted it.” According to plaintiff, the hole had to be drilled from the roof rather than from under the soffit because “that’s the way [defendant] wanted it done.” Prior to the accident, plaintiff accessed the roof by a scaffold, then walked to the area on the roof where he was to drill the hole. Plaintiff did not carry the drill, intending only to inspect the area to determine whether it was possible to drill the hole from the roof. Upon inspection, plaintiff determined that it was not safe because the roof was too wet. Plaintiff then slipped and fell from the roof. Plaintiff was not wearing a safety belt at the time of the accident, nor did he request any help or was help offered to him. Plaintiff did not use an extension ladder because the ground was too muddy, and he believed that the ladder would be shaky and unsafe at the required elevation. Plaintiff carried a hammer onto the roof, intending that if he slipped, he would “claw the hammer into the roof.”

Kvetko testified at his deposition that he hired and “coordinated the contractors” for the construction of his new home, but that there was no general contractor. He went to the jobsite “irregularly,” “sometimes three, four days [each week], sometimes every other day.” He rented the unassembled scaffold from a company which delivered it to the jobsite; any contractor who needed the scaffold erected it. There was not enough to go around the whole building. Kvetko was not present when the accident occurred, nor did he go to the jobsite on December 27, 1984. While driving to Milwaukee, he received a telephone call on his car phone that someone had fallen from the roof. He immediately returned to the jobsite. When he arrived, Roger Allord, a plumber at the site, told him that he had advised plaintiff not to go onto the roof. Allord offered plaintiff a safety line, but plaintiff refused.

Ray Kamatz, Jr., a carpenter, testified that Kvetko was at the jobsite every day from “a couple of hours” to “all day long,” coordinating the construction of his house. Kamatz stated that moving the scaffold was a “very time consuming process,” which no one wanted to do because “it was the middle of winter and it was all frozen.” Kamatz did not recall whether Kvetko was at the site on the day of the accident.

Robert Ryan, an electrician, testified that plaintiff supervised the electricians on the jobsite. He stated that there was no scaffold in the area where plaintiff needed to drill the hole at the time of the accident. Ryan took over the electrical work after plaintiff’s injury, and when he eventually did the work, there was scaffold available in the area where the hole was drilled.

Allord stated that Kvetko was at the construction site every day, sometimes two or three times a day. Kvetko checked that everything went according to plan and gave Allord instructions in his work.

Defendants’ motion for summary judgment argued that the Structural Work Act (Act) did not apply because: (1) plaintiff was a sole proprietor and, thus, “in charge” of the work; and (2) the roof from which plaintiff fell was not a “support” within the meaning of the Act. Defendants argued that even if the Act applied, they did not willfully violate the Act nor were they “in charge” of the work. The trial court granted summary judgment in favor of defendants on all counts, finding that plaintiff was not a “protected person” under the Act and that the roof was not being used as a “support” under the Act.

The Illinois Structural Work Act provides in relevant part as follows:

“§1. That all scaffolds, *** erected or constructed by any person, firm or corporation in this State for the use in the erection *** of any house *** or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon ***.” Ill Rev. Stat. 1985, ch. 48, par. 60.
“§9. Any owner, contractor, sub-contractor, foreman or other person having charge of the erection *** of any building *** or other structure within the provisions of this act shall comply with all the terms thereof ***.
* * *
For any injury to person or property, occasioned by any wilful violations of this Act, or any wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby ***.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 48, par. 69.

Initially, we consider plaintiff’s contention that the trial court improperly determined that plaintiff was a sole proprietor who was in charge of the work. The purpose of the Structural Work Act is to remove the fault of the employee as a defense and place the responsibility on the person in charge. (Bryntesen v. Carroll Construction Co. (1963), 27 Ill. 2d 566, 190 N.E.2d 315.) In order to hold a defendant accountable under the Act, it must be determined that such defendant was in charge of the work. (Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 473 N.E.2d 946.) Mere ownership is insufficient to impose liability under the Act (Coates v. W.W. Babcock Co. (1990), 203 Ill. App. 3d 165, 560 N.E.2d 1099), and the title that a party holds is not necessarily determinative of whether it was in charge of the work. (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 394 N.E.2d 403; Westerfield v. Arjack Co. (1979), 78 Ill. App. 3d 137, 397 N.E.2d 451.) Rather, such determination rests upon an assessment of the totality of the circumstances (Norton v. Wilbur Waggoner, 76 Ill. 2d 481, 394 N.E.2d 403), and this court has set forth a number of relevant factors, including the following:

“(1) supervision and control of the work; (2) retention of the right to supervise and control the work; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) responsibility for taking safety precautions at the jobsite; (6) authority to issue change orders; and (7) the right to stop the work. [Citations.] Other factors include: (8) ownership of the equipment used on the jobsite; (9) defendant’s familiarity with construction customs and practices; and (10) whether defendant was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits. [Citation.]” (Chance v. City of Collinsville (1983), 112 Ill. App. 3d 6,11, 445 N.E.2d 39, 42.)

(See also Zukauskas v. Bruning (1989), 179 Ill. App. 3d 657, 662, 680.) The question of whether one is in charge of the work is a question of fact that requires an evaluation of the totality of the circumstances. Ordinarily, this is a question for the jury, although summary judgment may be proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 514 N.E.2d 188.) The trial court’s task on such motion is not to resolve a disputed factual issue, but rather to determine whether one exists. Puttman, 118 Ill. 2d 107, 514 N.E.2d 188.

We find Westerfield v. Arjack Co. instructive. In Westerfield, plaintiffs were injured when the platform of a material hoist on which they were riding fell to the ground. Plaintiffs sued Arjack, the general contractor of the construction project, and Arjack filed a third-party action for indemnity against plaintiffs’ employer. The jury returned verdicts in both actions against Arjack. On appeal, this court rejected Arjack’s contention that it was not in charge of the work, relying on the following facts: Arjack supervised the progress of the construction; Arjack’s agents participated daily in the ongoing activities at the site; and Arjack had the right to issue a stop order if subcontractors did not perform adequately. Based upon these facts, this court determined that the evidence was sufficient to support the jury’s conclusion that Arjack was in charge of the work. Westerfield, 78 Ill. App. 3d at 142, 397 N.E.2d at 456.

In this case, the undisputed evidence established that Kvetko owned the home, supervised the overall progress of the construction, and hired the subcontractors. Moreover, the testimony of plaintiff, Al-lord and Kamatz suggests that Kvetko controlled the manner and method of the subcontractors’ work. Indeed, plaintiff testified that on the day of the accident Kvetko instructed him to install lights under the soffit and told him to finish the job on that day. According to plaintiff, Kvetko also stated, “I don’t care how you do it, you do it and get up there.” Such direction and comments by Kvetko, if true, belie his claim that he did not supervise plaintiff’s work. Moreover, Kvetko’s regular presence at the construction site suggests that he participated in the ongoing activities and was in charge of the work. As in Westerfield, Kvetko had the right to issue a stop order or fire a subcontractor if he so chose. Finally, the fact that Kvetko was not responsible for plaintiff’s employees is not determinative. (See McInerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 338 N.E.2d 868.) Based upon the above evidence, we believe that a genuine issue of material fact existed as to whether Kvetko was in charge of the work so as to subject him to liability under the Act.

We are unpersuaded by defendants’ argument that they were not in charge of the work because plaintiff was a sole proprietor, and not intended to be protected by the Act, and their reliance upon Dean v. Talman Home Federal Savings & Loan Association (1987), 163 Ill. App. 3d 800, 516 N.E.2d 951, and Holley v. Badgerow (1987), 162 Ill. App. 3d 572, 515 N.E.2d 1257. We find these cases inapposite here. In Holley, defendant-builder hired plaintiff as a subcontractor to rebuild a fireplace in a residence. Plaintiff hired a mason and a general laborer to assist him. Before starting the project, plaintiff and his assistant erected a scaffold; plaintiff owned the scaffold and all related materials. After working for about three weeks, plaintiff raised the scaffold to a higher level to facilitate the chimney work. The scaffold tipped over, and plaintiff and his assistant were injured. Plaintiff filed suit against the builder and the homeowner. The trial court granted defendants’ motion for summary judgment finding that plaintiff was not a protected person within the meaning of the Act, and this court affirmed. In characterizing plaintiff as a “sole proprietor,” this court focused upon the fact that plaintiff owned and erected the scaffold that caused his injuries. The court relied upon Flora v. Home Federal Savings & Loan Association (7th Cir. 1982), 685 F.2d 209, in which the court determined that a plaintiff, who was injured on a scaffold that he and his staff erected at the jobsite, was a sole proprietor. In Dean v. Talman Home Federal, plaintiff, a roofing contractor, contracted with defendant to repair the roof of a home owned by defendant. Plaintiff was injured when a tree branch which hung over the roof struck him in the eye. This court rejected plaintiff’s contention that defendant was in charge of the work, relying upon the factors set forth in Chance v. City of Collinsville. In Dean, defendant’s agent visited the jobsite for a total of 10 minutes and had one conversation with plaintiff in which he inquired about the progress of the construction. Plaintiff used his own equipment and was not supervised by defendant. This court characterized defendant as a “mere owner of property upon which activity occurs, and not that of a party supervising a subcontractor’s project.” (Dean, 163 Ill. App. 3d at 803, 516 N.E.2d at 953-54.) Under these facts, the court concluded that plaintiff acted as a “sole proprietor” and was therefore in charge of the work performed and not protected under the Act.

Unlike the defendant in Dean, Kvetko visited the jobsite regularly. Indeed, Kamatz testified that Kvetko was there daily, and Kvetko himself admitted that he was at the site three or four times each week. Kvetko also admitted that he “coordinated” the subcontractors and had the power to fire them and to issue stop orders. Moreover, unlike Holley and Flora, plaintiff here did not own or erect the scaffold from which he fell. Rather, Kvetko rented the scaffold, and Kvetko’s laborers erected the scaffold. These cases are thus distinguishable and do not require a contrary result.

We next consider plaintiff’s contention that the trial court incorrectly determined that plaintiff’s use of the roof did not constitute the use of a “support” within the meaning of the Act. Alternatively, plaintiff argues that defendants violated the Act by failing to provide a support device.

Our supreme court has repeatedly stated that the Act should be liberally construed to effectuate its purpose of protecting persons engaged in extrahazardous occupations or working in and about the construction, repair and alteration of buildings or other structures. (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 512 N.E.2d 1223; McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 317 N.E.2d 573.) However, the Act was not intended to cover all construction activities (Vuletich v. United States Steel Corp., 117 Ill. 2d 417, 512 N.E.2d 1223), and certain things have been held not to be “supports” within the contemplation of the Act. See Herman v. Swisher (1983), 115 Ill. App. 3d 179, 450 N.E.2d 28.

In order to determine whether a device is a “support,” we must ascertain the intended use of the device at the time of the injury. (Vuletich v. United States Steel Corp., 117 Ill. 2d 417, 512 N.E.2d 1223.) What is deemed a scaffold for purposes of the Act is not limited to the identity of the object claimed to be a support or scaffold. (Smyrniotis v. Brockob Construction Co. (1986), 142 Ill. App. 3d 340, 491 N.E.2d 1246.) Moreover, our courts have recognized that a roof, when temporarily used as a scaffold, is a device covered by the Act. Crothers v. La Salle Institute (1977), 68 Ill. 2d 399, 370 N.E.2d 213; St. John v. R.R. Donnelley & Sons Co. (1973), 54 Ill. 2d 271, 296 N.E.2d 740; Quinlin v. Northwestern Steel & Wire Co. (1985), 139 Ill. App. 3d 535, 487 N.E.2d 1124.

In this case, plaintiff argues that the roof was defective in its use as a scaffold to support him as he installed the lighting under the soffit. Defendants do not dispute that under some circumstances a roof may function as a scaffold or support under the Act. They assert, however, that plaintiff did not use the roof as a “work platform,” relying on Bolsmo v. Mark V Roofing Co. (1989), 190 Ill. App. 3d 334, 546 N.E.2d 634, and Vuletich v. United States Steel Corp. We find these cases distinguishable. In Vuletich, plaintiff fell from a set of temporary stairs leading to a tool storage trailer. Our supreme court rejected plaintiff’s claim that the stairs functioned as a support under the Act, concluding that plaintiff intended to use the stairs as a pathway to the storage trailer, not as a working platform. As such, the Act did not apply. In Bolsmo, plaintiff, an electrician, ascended onto the roof of a building through a hatchway, intending to inspect an exhaust fan located on another section of the roof. As plaintiff stepped from the hatchway, he slipped and fell. Relying on Vuletich, this court held that the roof was not a support under the Act because plaintiff used the roof as a means of access to the exhaust fan, where he intended to work, not as a work platform. Unlike Vuletich and Bolsmo, at the time of plaintiff’s injury in this case, he was not using the roof as a means to access his work location. Plaintiff accessed the roof, and then walked to the area on the roof where he needed to install the lighting. Plaintiff inspected the area and determined that he could not safely work on the roof because it was too wet. At this point, he fell. Vuletich and Bolsmo fail to support defendants’ claim that plaintiff did not use the roof as a work platform.

We reject defendants’ assertion that plaintiff’s intention to first determine whether he could safely perform the work from the roof precluded a finding that plaintiff used the roof as a work platform. Plaintiff was directed to install lights, a structural activity under the Act as part of “the erection *** of any house.” (Ill. Rev. Stat. 1985, ch. 48, par. 60.) A part of the job, however preliminary, involved determining the safest and most effective way to accomplish the function. We believe that at the time of his injury, plaintiff was engaged in a “hazardous task *** essential to [his] structural work activity]” of installing the lighting. (Dubrovich v. Commonwealth Edison Co. (1991), 209 Ill. App. 3d 498, 502, 568 N.E.2d 285, 288.) Moreover, plaintiff was in his “immediate work area.” (Dubrovich, 209 Ill. App. 3d at 502, 568 N.E.2d at 288.) That plaintiff ascended onto the roof to inspect the location without his tools or drill does not preclude the roof from functioning as a “support” under the Act. We believe that plaintiff’s activity at the time of his fall could constitute a protected structural work activity. Cf Long v. City of New Boston (1982), 91 Ill. 2d 456, 440 N.E.2d 625.

We find St. John v. R.R. Donnelly & Sons and Louis v. Barenfanger (1968), 39 Ill. 2d 445, 236 N.E.2d 724, instructive on this issue. In St. John, our supreme court held that a roof used temporarily to support construction workers was properly considered a scaffold under the Act, even though it was a permanent part of the structure. In Barenfanger, plaintiff fell while working on steel girders that formed an integral part of the building under construction. Our supreme court stated that a permanent structure, such as a roof, which is used as a stay or temporary support, is not outside of the Act. (See also Crothers v. La Salle Institute, 68 Ill. 2d 399, 370 N.E.2d 213.) Urman v. Walter (1981), 101 Ill. App. 3d 1085, 428 N.E.2d 1051, and Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 418 N.E.2d 1011, which each decided that a floor could be a support under the Act, are also persuasive. In Urman, this court stated, “[A] floor is not a scaffold when it is being used merely as a walkway [citations], but if a worker relies on a partially completed floor for support as a working platform, he may recover [citation].” (Urman, 101 Ill. App. 3d at 1093, 428 N.E.2d at 1057.) In Quinn, this court rejected plaintiff’s claim that the floor constituted a “support” where plaintiff used the floor as a path to reach other parts of the structure.

Applying the rationale of these cases, we believe that the roof from which plaintiff fell could constitute a “support” under the Act. Plaintiff stated that he used the roof as a working platform in the absence of properly placed scaffold. Plaintiff was not using the roof as a pathway to reach another area when he fell. Rather, at the time of his fall, plaintiff stood on the roof at the location of the work to be performed. Our supreme court has stated that the “obvious hazard[ ] of a scaffold *** [is] that workmen or materials may fall off such device[ ].” (Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 371, 325 N.E.2d 607, 612-13.) In our view, plaintiff’s amended complaint and deposition set forth a hazard protected by the Act. For the above reasons, we hold that the trial court’s grant of summary judgment in favor of defendants was improper.

Defendants also maintain that the Act does not apply because plaintiff’s voluntary act created the need for the support, citing Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 545 N.E.2d 689, and Swendsen v. Brighton Building & Maintenance Co. (1976), 41 Ill. App. 3d 930, 355 N.E.2d 164. Neither of these cases, however, presents an analogous factual situation. Unlike Delgatto and Swendsen, plaintiff’s amended complaint and deposition testimony suggest that he did not act voluntarily; rather, there was evidence indicating that Kvetko instructed him to go onto the roof and complete the job that day. In our view, Kvetko’s denial that he so instructed plaintiff created an issue of triable fact for the jury. Nor do we believe, as defendants maintain, that the record established plaintiff had safe alternatives to working on the roof.

We also believe that a triable issue of fact existed as to whether defendants violated the Act by failing to provide a scaffold for plaintiff’s use. It is well established that the Act may be violated by a failure to provide a needed scaffold, support, or other mechanical contrivance, as well as by providing a defective one. (Delgatto v. Brandon Associates, Ltd., 131 Ill. 2d 183, 545 N.E.2d 689; Louis v. Barenfanger, 39 Ill. 2d 445, 236 N.E.2d 724.) It is undisputed that Kvetko rented the scaffold and that his laborers erected the scaffold. The deposition testimony and plaintiff’s amended complaint indicate that plaintiff asked Kvetko to move the scaffold, and that he refused, saying that he did not have the time or the staff. The evidence also suggests that moving the scaffold was a time-consuming, difficult process which required several people. Based upon this evidence, we believe that a triable issue of fact existed as to whether defendants’ failure to move the scaffold for plaintiff’s use was a violation of the Act.

For the above reasons, we conclude that the trial court erred in granting summary judgment for defendants as to counts I and II alleging violations of the Structural Work Act.

Finally, we consider plaintiff’s argument that the trial court improperly granted defendants summary judgment on the negligence counts. A general contractor in control of the premises must provide subcontractors a safe place to work, and the failure to furnish a scaffold may be actionable under a common law negligence theory. (Louis v. Barenfanger, 39 Ill. 2d 445, 236 N.E.2d 724.) In light of our determination that a genuine issue of fact existed as to whether defendants were in charge of the construction and whether their failure to move the scaffold for plaintiff’s use constituted a violation of the Structural Work Act, we believe that an issue of fact also existed as to whether defendants’ conduct constituted a failure to provide a scaffold actionable in negligence. As such, we reverse the summary judgment for defendants on counts III and IV.

For the reasons stated, the summary judgment for defendants on all counts is reversed, and the cause is remanded to the circuit court of Cook County for further proceedings consistent with this opinion.

Reversed and remanded.

EGAN, P.J., and RAKOWSKI, J., concur.

       Justice Rosemary LaPorta participated in oral argument prior to her death. Justice Thomas R. Rakowski was substituted on the panel and has listened to the oral argument tape and read the briefs.


author: JUSTICE UNVERZAGT

text:
      In re MARRIAGE OF SUSAN C. LINDJORD, n/k/a Susan C. Wilson, Petitioner-Appellant, and JON D. LINDJORD, Respondent-Appellee.
    Second District
    No. 2—91—1210
    Opinion filed September 9, 1992.

      Sidney Abelski and Scott Bagnall, both of Abelski & Bagnall, of Chicago, for appellant.
    David P. Kirsh, of Kalcheim, Schatz & Berger, of Chicago, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Petitioner, Susan C. Lindjord, n/k/a Susan C. Wilson, appeals from an order of the circuit court of Lake County which dismissed her petition pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1401). The petition sought to vacate the judgment of dissolution which dissolved her marriage to respondent, Jon D. Lindjord. The sole issue raised by petitioner on appeal is whether the trial court abused its discretion in dismissing the section 2 — 1401 petition, with prejudice, absent a finding that petitioner could never adequately plead a section 2 — 1401 petition. We affirm.

Petitioner filed her petition for dissolution of marriage on June 25, 1990. She stated that she was 38 years old and respondent was 42 years old. She and respondent were married on June 14, 1985. No children were bom or adopted during the marriage, but petitioner had two children from a prior marriage. Petitioner also filed a petition for temporary relief, seeking maintenance and attorney fees. She alleged that she was employed only on a part-time basis while she was a full-time student. Her affidavit filed the same day stated that she was unemployed.

Respondent filed an affidavit of income and expenses which stated that his gross monthly income was $12,333.32, or $147,999.84 per year. He also filed a counterpetition for dissolution of marriage and alleged that petitioner would be receiving a college degree in June or July 1990. In his response to petitioner’s petition for temporary relief, respondent alleged that he had paid for petitioner’s education and that she was now fully capable of obtaining full-time employment to support herself and her children.

An order was entered on June 25, 1990, which stated that respondent was to pay petitioner temporary maintenance in the amount of $1,500 per month until trial. He was also to pay petitioner’s attorney $1,500 in temporary fees. The order stated that neither party was obligated to pay the mortgage on the marital residence. Petitioner filed a motion to reconsider this order, alleging that she did not have the ability to pay the monthly mortgage payment on the marital residence of $2,189.34. She alleged that respondent had the ability to pay the mortgage and noted that his affidavit of income and expenses “did not include the bonus the [respondent] receives on an annual basis.” She argued that failing to order respondent to make these payments would result in the dissipation of the principal asset of the parties. The court denied petitioner’s motion.

On December 13, 1990, an oral settlement agreement was presented to the court. Petitioner testified that respondent moved out of the marital residence on February 21, 1990. They had been separated since that date, and she had continued to live in the marital residence. She essentially testified that irreconcilable differences had caused the irretrievable breakdown of the marriage. She asked that her previous surname, Wilson, be restored.

Respondent testified regarding the terms of the agreement. He stated that he had agreed to pay petitioner $1,500 per month as maintenance for a period of one year beginning December 15, 1990. He also agreed to pay her an additional $10,000 as maintenance, $8,000 when she vacated the marital residence on January 30, 1991, and $2,000 on December 13, 1991. He testified that she would not receive any further maintenance or support and was waiving maintenance other than the $28,000 provided for in the agreement. Respondent stated that he would receive sole ownership of the marital residence, and petitioner and her children would move out of the residence by January 30, 1991. He testified that, if the residence was not in good repair, he would be able to reduce the maintenance payments to petitioner to make the repairs caused by petitioner or her children.

Petitioner was to receive all of the personal property contained in the home, except the refrigerator, the stove and a Toshiba computer. Respondent was responsible for the deficiency on the mortgage and any unpaid real estate taxes on the home. Petitioner was allowed the use of a Dodge Caravan automobile until January 30, 1991. She was responsible for payments on the van until then, and respondent would be responsible for the debt on the van after that date. Respondent was also responsible for income tax liabilities in connection with joint tax returns. Respondent stated that he and petitioner were each responsible for his or her own attorney fees and costs. Each party would retain possession of any other property in his or her name.

A judgment of dissolution of marriage was entered on December 27, 1990. The judgment was prepared by respondent’s attorneys and was signed as approved by petitioner’s attorney. The judgment incorporated the terms of the parties’ settlement agreement. The judgment specifically stated that each party would be solely responsible for any and all fees or costs incurred by him or her in this litigation and also contained the following provision:

“Until such time as [petitioner] vacates the marital residence, which shall be on or before January 30, 1991, [petitioner] shall maintain said premises in a clean, neat and proper condition. [Petitioner] warrants that she has not committed any waste or done any damage to the marital residence during the pendency of this cause. In the event [petitioner] fails to leave the marital residence in a clean, neat and proper condition, free of any waste, [respondent] may deduct the cost of repair or cleaning of the premises from [petitioner’s] maintenance.”

Seven months later, on July 30, 1991, petitioner filed a petition to vacate or modify the judgment. Petitioner alleged various conduct by respondent prior to the settlement agreement which caused her “financial, physical, mental and emotional distress.” Petitioner further alleged that she received only 11% of the parties’ marital estate, which she stated had a total value of $106,420, under the terms of the agreement. She alleged that her attorney advised her that, if she refused to accept the agreement offered by respondent, she would probably receive no maintenance as her attorney believed that the judge would not award maintenance. She alleged that she “was under great duress to the point where she was visibly shaken and at times reduced to tears” and felt that she had no choice but to accept the proposed agreement.

Petitioner also alleged that the judgment did not include respondent’s agreement to be responsible for one-half of her attorney fees. She alleged that respondent had made numerous purchases of expensive items since the judgment was entered and that respondent had withheld in excess of $18,000 in maintenance owed to her. She finally alleged:

“(40) That to induce the Petitioner to agree to the Respondent’s terms and conditions of the oral marital settlement agreement, the Respondent represented to the Petitioner that there was a reduced chance that the Respondent would receive the 1990 annual bonus, if any, from his employer.
(41) That thereafter believing and relying on the Respondent’s representation, the Petitioner succumbed to the terms and conditions set forth by the Respondent.
(42) That the aforementioned representation made by the Respondent to the Petitioner was false when so made.
(43) That after the entry of this Judgment, the Respondent was paid the 1990 annual bonus in the amount of $40,000.00 or approximately thirty-eight (38%) of the parties’ total marital estate.
(44) That as a direct and proximate result of the Petitioner’s reliance upon said representation, the Petitioner has loss [sic] her marital interest in said 1990 annual bonus.”

Petitioner thus requested that the property settlement agreement be set aside and that judgment against respondent be entered in the amount of $18,322.88 for court ordered maintenance.

On August 13, 1991, respondent filed a motion to dismiss the petition. He argued that the allegations in the petition did not meet the requirements of section 2 — 1401 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2—1401). He contended that the petitioner did not set forth a meritorious claim or defense but only claimed that she was entitled to a larger share of the marital estate than what she settled for. He also argued that she did not adequately allege due diligence in the original action or in filing the section 2 — 1401 petition.

On September 5, 1991, petitioner filed a motion for leave to file an amended petition. She attached an “amended petition to vacate or modify judgment and rule to show cause” to the motion. Petitioner’s amended petition included many of the same allegations contained in her original petition, but also included allegations that her only knowledge of the judgment came when her attorney read the judgment to her over the telephone, that her attorney did not advise her until the second or third week of January 1991 of her right to petition the court to vacate the judgment within 30 days, that her attorney thereafter failed or refused to return her telephone calls, and that an award of only 11% of the marital estate was insufficient and unconscionable.

Petitioner also sought a rule to show cause why respondent should not be held in contempt for his failure to pay maintenance. She attached to the petition letters from respondent dated February 15, 1991, March 15, 1991, April 15, 1991, and July 15, 1991. In each letter, respondent informed petitioner of the expenses he had incurred in making repairs to the marital residence or in replacing items allegedly taken from the marital residence by petitioner. The February letter concluded that he did not owe her $5,500 in maintenance as he spent $5,642. Interestingly, the letter stated that he paid $191.05 to carpet cleaners and then paid $4,084.60 to replace the carpet. The other letters also concluded that he did not owe petitioner any maintenance. Some of the more interesting expenses he claimed were $883.77 to replace his racing bicycle, $498 to replace two tennis rackets, $566.20 to replace an exercise bicycle, $213.95 to replace a world globe, and $2,498.94 to replace pots and pans, kitchen appliances and kitchen implements.

Respondent filed a motion to dismiss the amended petition. On September 25, 1991, an order was entered which stated that the court had reviewed the amended petition and had heard the arguments of counsel. The court granted respondent’s motion to dismiss and denied petitioner’s motion to file an amended petition. The court set the “enforcement aspect” of the petition for hearing. Petitioner filed her notice of appeal on October 23,1991.

Parenthetically, we note that the record on appeal establishes that, after the filing of numerous documents and motions by both parties in the enforcement proceedings, an order was entered on January 22, 1992, which stated that the petition for a rule to show cause was dismissed “as maintenance has been paid.” A hearing regarding sanctions was set for March 3, 1992.

On appeal, petitioner argues that the trial court should not have granted respondent’s motion to dismiss her section 2 — 1401 petition. She apparently concedes that her original petition was not sufficient to entitle her to relief under section 2 — 1401. She contends, however, that her petition does show that she could, if given the opportunity to do so, allege a section 2 — 1401 petition adequate to entitle her to relief based upon the unconscionability of the agreement, fraud, or the judgment’s failure to include respondent’s oral agreement to pay one-half of petitioner’s attorney fees. She does not claim that her proposed amended petition was adequate and does not state the additional allegations she would make in another amended petition.

She argues that any inadequacies in the petition are a matter of form and not of substance and asserts that a “motion to dismiss a section 2 — 1401 petition should be granted only when it is clear that no facts can be pled upon which the circuit court could grant relief.” She also contends that her petition should not have been dismissed, with prejudice, absent a finding by the court that she “could never state a section 2 — 1401 cause of action.”

Section 2 — 1401 of the Code provides a comprehensive statutory procedure by which final orders and judgments may be vacated more than 30 days after their entry. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1401; Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220.) The purpose of a section 2 — 1401 petition “is to bring before the court matters of fact which were unknown at the time the judgment was entered, and if known, would have affected or altered the judgment.” (In re Marriage of Hoppe (1991), 220 Ill. A pp. 3d 271, 282.) To be entitled to relief under section 2—1401, a petitioner must affirmatively set forth specific aUegations supporting: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting this claim or defense to the circuit court in the original action; and (3) due diligence in filing the section 2—1401 petition for relief. (Airoom, 114 Ill. 2d at 220-21.) The requirement of due diligence, however, need not be rigidly enforced when fraud or unconscionable behavior is shown. Tsuetaki v. Novicky (1983), 158 Ill. App. 3d 505, 513.

When a party files a motion to dismiss attacking a petition for relief under section 2—1401, the motion admits all well-pleaded facts and challenges only the legal sufficiency of the petition. (Hoppe, 220 Ill. App. 3d at 283; see also In re Adoption of Baby Girls Mandell (1991), 213 Ill. App. 3d 670, 671.) The dismissal of a section 2—1401 (formerly section 72) petition will not be reversed on appeal absent an abuse of discretion. People v. Alfano (1981), 95 Ill. App. 3d 1026, 1030; see also In re Marriage of Travlos (1991), 218 Ill. App. 3d 1030,1035-36.

Petitioner’s argument that she must be given another opportunity to attempt to amend her petition must fail. She has misstated the language from the case she relies on, Uptown Federal Savings & Loan Association v. Kotsiopoulos (1982), 105 Ill. App. 3d 444. The case actually states that a petition “should not be dismissed unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the petitioner to relief.” (Emphasis added.) (Kotsiopoulos, 105 Ill. App. 3d at 449.) Petitioner has also cited no relevant authority to support her contention that, before a section 2— 1401 petition may be dismissed, a trial court must make a specific finding that a party could never state a section 2 — 1401 cause of action. In fact, a section 2 — 1401 petition may be dismissed if it fails to state sufficient facts to warrant relief. In re Marriage of Travlos (1991), 218 Ill. App. 3d 1030, 1035; People v. Cole (1991), 215 Ill. App. 3d 585, 587.

We will therefore address the sufficiency of the petition based upon the applicable standard. We initially note that the record does not contain a transcript of the hearing regarding respondent’s motion to dismiss the section 2 — 1401 petition. There is therefore nothing of record to disclose the basis for the trial court’s ruling. The court’s order, however, did state that the court had reviewed petitioner’s amended petition. The court apparently determined that neither petitioner’s original petition nor the amended petition was adequate to entitle her to relief pursuant to section 2 — 1401. We conclude that the trial court did not abuse its discretion in making this determination and in dismissing the petition.

■Petitioner has essentially conceded that the petition does not adequately allege facts showing due diligence on her part. While we recognize that this requirement may be relaxed upon a showing of fraud or unconscionable behavior, we conclude that the petition did not allege facts showing either fraud or unconscionable behavior. Petitioner relies on the allegations in both petitions that respondent told her that there was a “reduced chance” that he would receive a 1990 annual bonus, but then did in fact receive a $40,000 bonus. She asserts that this misrepresentation constituted fraud and that the property settlement was unconscionable based upon respondent’s nondisclosed or misrepresented assets.

“Fraud is the intentional misrepresentation of a material fact or the concealment of a fact which induces a party to rely on that misrepresentation to his or her detriment.” (In re Marriage of Gurin (1991), 212 Ill. App. 3d 806, 813.) We conclude that petitioner’s allegation that respondent informed her that there was a “reduced chance” that he would receive a bonus which petitioner, according to her own pleadings, was aware that he received on an annual basis is not sufficient to show fraud. Respondent’s alleged statement to her could have been entirely true when made. The fact that he did later receive a bonus does not mean that there was not a reduced chance of a bonus at the time his statement was made.

We note that respondent clearly engaged in egregious behavior when he failed to pay petitioner the maintenance he had agreed to pay. However, that behavior was addressed in proceedings to enforce the judgment. Petitioner does not argue that respondent’s outrageous violation of the judgment provides a basis for vacating the judgment.

We further conclude that petitioner failed to allege adequately that the settlement agreement was unconscionable. She alleged that she received only 11% of the marital assets which she valued at $106,420. However, the marriage was of short duration, the record demonstrates that respondent paid for her college education during the marriage, and the agreement also provided that she was to receive $28,000 in maintenance. We conclude that the terms of the agreement were not so unfair as to make the agreement unconscionable. See In re Marriage of Carlson (1989), 186 Ill. App. 3d 635, 639.

Finally, it is apparent that there is no merit to petitioner’s contention that the judgment should be vacated because the judgment did not reflect respondent’s oral agreement to pay one-half of her attorney fees. At the hearing regarding the settlement agreement, respondent clearly testified, in petitioner’s presence, that each party would pay his or her own attorney fees. The written judgment, which petitioner alleged was read to her by her attorney, also stated that each party would be solely responsible for any and all fees and costs incurred in the litigation.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

GEIGER and DOYLE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER P. SULLIVAN, Defendant-Appellant.
    Second District
    No. 2—90—0446
    Opinion filed September 10, 1992.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Daniel J. Walsh, of Johnson, Frank, Frederick & Walsh, of Urbana (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Christopher Sullivan, appeals from his convictions of two counts of battery (Ill. Rev. Stat. 1991, ch. 38, par. 12—3(a)(l)), for which he was sentenced to one year’s probation conditioned on participation in the Du Page County domestic violence program. In count I, he was charged with pushing Margaret Sullivan. In count II, he was charged with grabbing Thomas Sullivan and pushing him to the ground. Defendant raises three issues on appeal: (1) that the trial court abused its discretion in denying him a continuance to secure legal counsel; (2) that he was not proved guilty beyond a reasonable doubt on count I because the only evidence supporting his conviction was inadmissible hearsay; and (3) that he was not proved guilty beyond a reasonable doubt on count II.

The complaints alleged defendant committed the batteries on January 7, 1990. During the February 9, 1990, arraignment, the trial court suggested to defendant that he obtain the assistance of counsel. On April 17, 1990, at 10 a.m., defendant appeared before the court on the trial date. He introduced Thomas Sullivan and Margaret Sullivan, the alleged victims, as his father and mother. The record contains a subpoena requiring their presence. The Sullivan parents told the court that they wanted to drop the charges. The court explained it had no control over the charges and only the State’s Attorney could drop them. Defendant stated that his lawyer told him that the charges would be dropped. Thomas Sullivan stated that an unidentified assistant State’s Attorney told him that the charges could be dropped only in court. The trial court told them to return at 1:30 p.m.

At 1:30, defendant entered a plea of not guilty. He requested the court to pass the cause because he needed his attorney to represent him. Defendant said he had not had a chance to talk to his attorney, but the court told him he had had since February. The court said it would give him half an hour to talk to an attorney while the court finished the docket call. The court absolutely refused to grant a continuance.

After the break, the court commenced the trial. Defendant represented himself. The State called Thomas Sullivan as its first witness. He testified that he and his son were home on the evening of January 7, but he could not recall the specifics of the events. He called the police after arguing with defendant concerning his drinking. Thomas Sullivan wanted defendant to leave, but he refused. When the police officer arrived, Thomas signed a complaint that said defendant grabbed and pushed him to the ground. Thomas said he might have signed it but denied that the event happened. Thomas Sullivan acknowledged that he signed the complaint, which is part of the record, under oath. He stated that he had lied under oath when he signed the complaint. He acknowledged that he probably remembered the events more clearly the night they happened. On cross-examination, Thomas Sullivan denied that defendant touched him.

Margaret Sullivan testified that she did not join in the argument but swept the kitchen floor instead. After defendant left, there was a broken beer bottle on the floor. She testified that defendant left when Thomas threatened to call the police. She denied that she told the police officer that defendant pushed her in the chest because defendant had not pushed her in the chest. She stated that it was not possible for her to have told the officer that defendant pushed her.

David Bormann testified that he was an officer for the Downers Grove police department. He signed the complaint for count I, regarding Margaret Sullivan. On January 7, he responded to a domestic quarrel call. Thomas and Margaret Sullivan, but not defendant, were present. Thomas’ lip was red and showed a trace of blood. Thomas told Bormann that Christopher pushed him, grabbed him by the chest and shoved him to the ground. Defendant did not register an objection to this testimony. Bormann related that Margaret told him that defendant pushed her as he was leaving the house. Bormann observed broken beer bottles on the floor, which Margaret was sweeping.

The State rested, and the trial court told defendant he did not have to testify if he did not wish. Defendant declined to testify. The trial court stated that it did not know what was worse, the perjury or defendant’s battery of his parents. The court warned them that they were not truly protecting their son from his problems by denying the violence. The court found defendant guilty on both counts and sentenced him immediately. Although the trial court did not give defendant any admonishments regarding his rights and remedies of law, defendant filed a timely notice of appeal. The appellate defender was appointed to represent him.

Defendant contends that the trial court abused its discretion in refusing to grant a continuance and he was thus denied his constitutional right to counsel. According to defendant, he was prejudiced by the lack of counsel because counsel would have objected to the introduction of the hearsay evidence, which was the sole basis of his conviction of the battery charges.

The failure to raise issues in a written, post-trial motion for a new trial results in a waiver of those issues on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) This requirement is in addition to the rule that the appellant must make an objection to the evidence during the trial. (122 Ill. 2d at 186.) However, we may address the issue of the sufficiency of the evidence, the constitutional issues, and plain error. (122 Ill. 2d at 190.) Moreover, the waiver rule is an admonition to the parties rather than a restraint on the court. (Welch v. Johnson (1992), 147 Ill. 2d 40, 48.) Thus, while a post-trial motion would have been preferable to develop the facts supporting the pro se defendant’s request for legal counsel, the lack of the motion does not prohibit us from reviewing the cause.

While not cited in either party’s brief, a motion for a continuance is governed by section 114 — 4 of the Code of Criminal Procedure of 1963, which reads:

“(a) The defendant or the State may move for a continuance. If the motion is made more than 30 days after arraignment the court shall require that it be in writing and supported by affidavit.
(b) A written motion for continuance made by defendant more than 30 days after arraignment may be granted when:
(1) Counsel for the defendant is ill, has died, or is held to trial in another cause; or
(2) Counsel for the defendant has been unable to prepare for trial because of illness or because he has been held to trial in another cause; ***
* * *
(d) The court may upon the written motion of either party or upon the court’s own motion order a continuance for grounds not stated in subsections (b) and (c) of this Section if he finds that the interests of justice so require.
(e) All motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the
diligence shown on the part of the movant. ***
* * *
(h) This Section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial.” Ill. Rev. Stat. 1991, ch. 38, par. 114—4.

The granting of a continuance to permit preparation for a case or for the substitution of counsel depends on the circumstances surrounding the request and is a matter within the sound discretion of the trial court. (People v. Solomon (1962), 24 Ill. 2d 586, 589; People v. Lewis (1988), 165 Ill. App. 3d 97, 102.) The importance of enabling the defendant to exercise his right to be represented by counsel of his own choosing is generally deemed to outweigh the inconvenience to the prosecution, witnesses, court and jury, unless it is shown that the defendant’s actions were taken for the purpose of delay. This rule is followed even though it is difficult for the trial court to determine the defendant’s motive and even though the rule tends to encourage a defendant to delay the selection of trial counsel until the trial'date approaches. People v. Sullivan (1977), 52 Ill. App. 3d 666, 669.

Here, defendant did not request a continuance for the purpose of delay but for the purpose of obtaining counsel. He was under the misapprehension that the trial would not go forward. The witnesses, other than the police officer, were not inconvenienced, because they also asked for a continuance. Defendant waived a jury trial. Any delay would not have been extensive because the facts were simple and a new counsel would not have needed much time to prepare. The record does not show that defendant had previously been dilatory. Thus, the trial court should have granted defendant a reasonable time to secure counsel for the trial.

Defendant also contends that he was not proved guilty beyond a reasonable doubt of count I. The police officer did not see defendant strike Margaret Sullivan and saw no evidence that she sustained an injury. The officer related that she said defendant hit her, but she denied making the statement. Ordinarily, a prior inconsistent statement can be used only for purposes of impeachment. It may be used as substantive evidence when the witness acknowledges under oath the making of the statement. (Ill. Rev. Stat. 1991, ch. 38, par. 115—10.1(c)(2)(B).) Since Margaret Sullivan did not acknowledge the statement, it was inadmissible for the purposes of substantive evidence. (People v. Denny (1991), 221 Ill. App. 3d 298, 302-03.) Even though the witness was not credible, the trial court had no evidence to support a conviction. Therefore, the conviction must be reversed. People v. Taylor (1979), 76 Ill. 2d 289, 309; Denny, 221 Ill. App. 3d at 303.

Defendant also contends that he was not proved guilty beyond a reasonable doubt of battery to Thomas Sullivan in count II. Thomas Sullivan denied the incident. Defendant argues that the purported injury to Thomas Sullivan’s lip does not corroborate Bormann’s version, which was that defendant grabbed Thomas Sullivan by the chest and pushed him to the ground; defendant contends the location of the injury would have been different.

When considering a challenge to the sufficiency of the evidence, this court is not to retry the defendant. Rather, we must decide whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261; Denny, 221 Ill. App. 3d at 301.) Where the evidence is conflicting, the fact finder and not the reviewing court is primarily responsible for determining the witnesses’ credibility, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence. (People v. Steidl (1991), 142 Ill. 2d 204, 226.) Applying this standard to the facts in the record, we find that a reasonable trier of fact could have found sufficient facts — the broken beer bottle, the trace of blood on Thomas Sullivan’s lower lip, the testimony of Mrs. Sullivan that Christopher appeared to have been drinking and that there was an argument, and the prior inconsistent statement from a witness with a motive to prevaricate — to determine defendant was guilty. Thomas P. Sullivan acknowledged under oath that Christopher Sullivan committed a battery upon him by grabbing him and pushing him to the ground. Since this statement was made under oath it is admissible as an exception to the hearsay rule, pursuant to section 115—10.1(c)(l) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115-10.1(c)(l)). However, because we reverse on the first issue raised in this appeal, we must remand the cause for a new trial on this count.

For the above reasons, the conviction from count I is reversed, and the conviction from count II is reversed and the cause remanded for a new trial on count II.

Reversed and remanded.

GEIGER and DOYLE, JJ., concur.


author: JUSTICE WOODWARD

text:
    JAMES L. PECK, Petitioner-Appellant, v. THE DEPARTMENT OF HUMAN RIGHTS et al., Respondents-Appellees.
    Second District
    No. 2—91—1134
    Opinion filed September 10, 1992.
    Rehearing denied October 14, 1992.

      James L. Peck, of Westmont, petitioner pro se.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
   JUSTICE WOODWARD

delivered the opinion of the court:

Petitioner, James L. Peck, pro se, petitions this court for review of the order of the Human Rights Commission dismissing his complaint against respondent TAD Technical Services Corporation for lack of substantial evidence. Petitioner’s brief lists a number of issues which can be summarized as contentions that the commission erred in finding a lack of substantial evidence to support his complaints of handicap discrimination and retaliation.

Petitioner is an electronic technician, who is very sensitive to cigarette smoke. Respondent TAD Technical Services Corporation (TAD) is a temporary-service agency supplying workers to clients for a variety of temporary assignments. From January 1976 to February 1985 petitioner worked for TAD on an assignment at Rauland-Zenith. While at Zenith, petitioner had problems with a pipe smoker. Petitioner complained to TAD’s branch manager, Robert Vogt, who brought him an air cleaner.

On January 13, 1986, petitioner began an assignment at Rockwell International. It is disputed whether Vogt informed Rockwell of petitioner’s problems with smoke. In any event, on his first day on the job, petitioner became embroiled in a dispute regarding other employees’ smoking. Because of problems arising from this incident, Rockwell terminated petitioner on January 14.

Petitioner filed a complaint against Rockwell with the Department of Human Rights alleging that Rockwell terminated him because of his physical handicap, an allergy to cigarette smoke. The Department dismissed the complaint for lack of substantial evidence, and that determination was upheld by the Human Rights Commission on review. On direct review to this court, we affirmed the dismissal. Peck v. Department of Human Rights (1988), 168 Ill. App. 3d 1162 (unpublished order under Supreme Court Rule 23).

After Rockwell terminated petitioner, TAD did not refer him for any more temporary positions. On March 23, 1987, petitioner filed a complaint against TAD with the Department of Human Rights. Petitioner alleged that TAD refused to give him further assignments based on his allergy to cigarette smoke, which petitioner contends is a physical handicap. Petitioner further alleged that TAD retaliated against him for filing the previous human rights complaint against TAD’s client, Rockwell. The Department conducted a preliminary investigation, including a fact-finding conference. The investigator recommended dismissal of the complaint for lack of substantial evidence. Petitioner filed a request for review with the Human Rights Commission, which sustained the dismissal. Petitioner then filed a request for direct review with this court pursuant to section 8—111 of the Human Rights Act and Supreme Court Rule 335 (Ill. Rev. Stat. 1989, ch. 68, par. 8-111; 134 Ill. 2d R. 335).

Plaintiff’s brief lists eight issues, namely:

“Whether the matter raises legal issues of significant impact or the three-member panel decisions are in conflict.
Whether the Plaintiff presented sufficient evidence to establish a prima facie case of handicap discrimination.
Whether the Plaintiff presented sufficient evidence to establish a prima facie case of retaliation.
Whether the Plaintiff placed restrictions on assignments.
Whether the Plaintiff failed to comply with company policy.
Whether the Defendant was suffering a decrease in the economy.
Whether the Defendant aided and abeted [s-ic] Rockwell in its case.
Whether the Department of Human Rights properly investigated the matters of this case.”

The first, seventh and eighth issues are not supported by any citation of relevant authority in violation of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)) and are therefore waived. (McDufee v. Industrial Comm’n (1991), 222 Ill. App. 3d 105, Ill.) The fourth, fifth and sixth issues relate to TAD’s assertions of legitimate reasons for not rehiring respondent. Thus, all the issues which petitioner has properly preserved for review can be summarized as whether the Commission’s decision that substantial evidence was lacking to support petitioner’s charges of handicap discrimination and retaliation was against the manifest weight of the evidence.

In analyzing employment discrimination actions under the Human Rights Act, Illinois courts have used the three-part analysis set out in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817. (Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 178.) First, plaintiff must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. If he does so, a rebuttable presumption arises that the employer unlawfully discriminated. To rebut the presumption, the employer must articulate, not prove, a legitimate, nondiscriminatory reason for its decision. If the employer carries its burden of production, the presumption of discrimination falls, and the plaintiff must then prove by a preponderance of the evidence that the employer’s articulated reason was not the true reason, but was instead a pretext for unlawful discrimination. Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 259-60, 67 L. Ed. 2d 207, 219, 101 S. Ct. 1089,1097; Zaderaka, 131 Ill. 2d at 178-79.

In reviewing the Commission’s decision to dismiss a complaint for lack of substantial evidence, the court determines whether the Commission’s action was arbitrary and capricious, or an abuse of discretion. (Castillo v. Human Rights Comm’n (1987), 159 Ill. App. 3d 158, 162-63; Sanders v. United Parcel Service (1986), 142 Ill. App. 3d 362, 365.) It is within the special province of the Commission to review and weigh conflicting evidence, whether at the preliminary investigation level or at a later stage. Sanders, 142 Ill. App. 3d at 365.

The Commission’s order dismissing the complaint contains the following findings of fact:

“2. The evidence demonstrates that Respondent denied Complainant job placement because Complainant failed to comply with company policy, i.e. failed to keep Respondent apprised of his whereabouts and availability and also because Respondent was suffering due to a decrease in the economy.
3. That Complainant did not establish the elements of a prima facie case of handicap discrimination.
4. That Respondent did not retaliate against Complainant.”

Neither the Department nor the Commission conducted a formal evidentiary hearing. The Department collected evidence through pleadings filed by the parties, investigatory interviews and an informal fact-finding conference. Petitioner advanced his contention that he had been denied placement because of his handicap and in retaliation for filing the complaint against Rockwell. TAD elucidated a number of responses.

First, although Vogt was aware generally of petitioner’s distaste for cigarette smoke, petitioner had never provided any medical evidence of the nature or extent of his condition. Vogt stated that the word “handicap” never arose in conjunction with petitioner’s condition until the fact-finding conference.

Second, economic conditions had sharply reduced the demand for electronic technicians during the relevant period. Vogt asserted that this condition was exacerbated by petitioner’s restrictions upon the jobs he would accept. Petitioner allegedly required a position within 20 miles of his home, with a smoke-free environment, a minimum pay rate of $13.30 per hour and a “safe” parking lot for his car. Moreover, during this time period, petitioner failed to keep in constant contact with TAD and inform it of his whereabouts. These factors effectively prevented TAD from placing petitioner. A list provided by TAD showed only two positions occurring between January 1986 and August 3, 1990, the date of the fact-finding conference, for which petitioner was qualified and which complied with his alleged conditions. On April 1, 1987, Vogt offered to meet with petitioner at TAD’s offices, but he declined.

This evidence apparently formed the basis for the Commission’s conclusion that TAD articulated legitimate, nondiscriminatory reasons for the failure to place petitioner: the lack of positions due to the “decrease” in the economy and petitioner’s failure to stay in contact with TAD.

In this court, petitioner’s contentions are somewhat hazy. Essentially, however, he contests the Commission’s factual findings. His initial brief and reply brief are replete with examples of alleged inaccuracies in the Department’s report. We note that this court does not review the findings of the Department, but can only review the final order of the Commission. See Milan v. Human Rights Comm’n (1988), 169 Ill. App. 3d 979, 983.

Initially, it is not clear that petitioner has established that he is handicapped. Petitioner has not cited any reported case which held that an allergy to cigarette smoke is a physical handicap. At least one case has held that it is not. (Gasp v. Mecklenburg County (1979), 42 N.C. App. 225, 256 S.E.2d 477.) Moreover, the record before the Commission is sketchy at best. This is due, in part, to the chameleon-like nature of petitioner’s argument. At times, he appears to argue that he actually is handicapped. At other times, he claims that he is not handicapped, but that TAD perceived him to be so. (See Ill. Rev. Stat. 1989, ch. 68, par. 1 — 103(1)(1).) In any event, before the Department, petitioner submitted only a doctor’s report of a test done August 21, 1986, which states “Tobacco 3+,” “Histamine Control -4+ +.” No explanation of these numbers was provided. Petitioner’s request for review by the Commission contains additional medical records, similarly without explanation. A handwritten note from Dr. N. Arora states that petitioner “seems to have Allergic Rhinitis *** Such patients do get bothered by tobacco smoke as a shop irritant.”

Despite the lack of evidence, the Commission appears to have assumed that petitioner either was actually handicapped or was perceived as such by TAD. Likewise, the Commission’s brief in this court assumes for the sake of argument that petitioner adequately established his handicapped status, contending that TAD nevertheless articulated a legitimate, nondiscriminatory reason for not placing petitioner. Following this analysis, we conclude that the Commission’s finding was not against the manifest weight of the evidence.

The Commission found that TAD’s failure to place petitioner was due solely to the lack of positions for electronic technicians and petitioner’s failure to maintain contact with TAD. Initially we note that, although petitioner contends that he was “not aware of a decrease in the economy,” he failed to produce evidence to refute TAD’s claim that few positions were available. Petitioner did not introduce, for example, evidence of any positions (other than the two listed by TAD) for which he was qualified but about which he was not contacted.

Petitioner also contests the Commission’s finding that he failed to maintain contact. Petitioner contends that TAD did not inform him of any such policy. Moreover, he alleges that TAD was at all times able to contact him because it had the phone number of his aunt in Beardstown, and she knew where to contact him. He argues that if TAD had desired to place him, it could have called his aunt and learned his whereabouts.

Petitioner’s arguments miss the point. The Commission found initially that few positions were available. TAD presumably had people other than petitioner who were qualified for these positions. It is a matter of common sense that TAD would attempt to fill these positions with the individuals who showed the most interest in them by calling regularly. These people would likely demonstrate the most enthusiasm to the clients. Also, TAD would obviously offer the positions first to someone it was able to contact easily. It was not required to go through the circuitous procedure of calling petitioner’s aunt in Beardstown, who might or might not know how to reach him on short notice.

TAD articulated legitimate, nondiscriminatory reasons for failing to place petitioner in additional temporary positions. Petitioner failed to produce subsequently evidence that these reasons were in fact pretextual. Thus, the Commission’s finding of a lack of substantial evidence to support the charges was not against the manifest weight of the evidence.

For the foregoing reasons, the decision of the commission dismissing petitioner’s complaint is affirmed.

Affirmed.

DOYLE and GEIGER, JJ., concur.