author: JUSTICE UNVERZAGT

text:
    THE CITY OF GALENA, Plaintiff-Appellant, v. PATRICK DUNN, Defendant-Appellee.
    Second District
    No. 2—91—0079
    Opinion filed December 5, 1991.

      Philip E Jensen and Dennis M. Walters, both of Hammer, Simon & Jensen, of Galena, for appellant.
    Swanson & Rominski, of Waukegan, and Ronald P. Paja, of Stockton (Barbara Swanson Rominski, of counsel), for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Patrick Dunn, and his wife owned a 100-acre dairy farm in rural unincorporated Jo Daviess County upon which they decided to build their personal residence. Mrs. Dunn went to the county office on June 28, 1990, and got a county building permit. They also received a septic permit from the county health department. They commenced construction of their home. The county inspected the construction and gave the Dunns a certificate of compliance.

The City of Galena (City), the nearest municipality to the Dunn property, sent its zoning enforcement officer to the Dunn farm with a notice to stop work. The defendant continued construction.

The City brought suit against Patrick Dunn, asking that the court enjoin him from further construction of his building, and to impose fines for violation of the zoning ordinance of the City for Dunn’s failure to obtain a building permit from the City. Defendant moved to dismiss the complaint. The court held a hearing on that motion and, thereafter, entered its order which found that “the City of Galena does not have authority to enforce their building code violations within one and one half miles from their territorial limits.” The order granted defendant’s motion to dismiss.

The City asked for rehearing in the trial court or, in the alternative, permission to file an amended complaint. The trial court granted the City leave to file its amended complaint.

The amended complaint alleged that defendant violated the City’s zoning ordinance by not obtaining a building permit and asked the court to assess a fine for that violation. Count II of the amended complaint requested the court to issue an injunction to prevent the defendant from continued construction. The affidavit of the City’s building official was attached to the complaint. That official stated that defendant continued to build on his property and that defendant had been notified of the need for a building permit, an electrical permit, and for a heating permit. The building official stated that construction had continued and the stop work notice had been ignored by the defendant.

A bench trial was held on the City’s amended complaint. The City’s sole witness at that trial was Dan Weeks, the City’s building inspector and deputy zoning administrator. Weeks testified that he was familiar with section 11 — 13—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 13—1), which enabled municipalities to fix standards to which buildings or structures shall conform. A major part of Weeks’ job is to ensure that such conformity occurs.

Weeks testified that to assure compliance with the fixed standards for buildings and structures, the City required that an application for a permit be submitted with an accompanying site survey or plan, showing lot location and back and side setbacks, and a blueprint or schematic drawing, showing the building layout such as size of rooms, stairway locations, foundation and footing design, roof design, and electrical openings. Without this permit process, Weeks stated, the City could not be assured that a structure complied with the fixed standards, and risks to the health, safety, and welfare of the community could occur. Weeks said that by requiring that construction plans be preapproved before a permit is issued, such risks could be avoided. Weeks stated that after issuance of a permit, various inspections occur throughout the construction of a structure to ensure that the construction is being done according to the approved plan. After the construction is completed, a final inspection occurs, and an occupancy permit is issued.

Weeks recalled that he first learned of the construction on defendant’s property, which is located within V-k miles of the City limits, when Sproule Construction (Sproule), the construction company putting in the foundation for defendant’s house, sought a building permit for that purpose. At the time Sproule requested the permit, it submitted a copy of a blueprint and a little picture of defendant’s house and indicated to Weeks that defendant intended to submit to the City the necessary plans for the residence. Based on Sproule’s assurance that defendant’s plans were forthcoming, Weeks issued the permit for the foundation and subsequently inspected the footings for the foundation and the steel placement and construction standards for the foundation before it was poured.

Subsequently, Weeks drove by the site of the foundation and discovered that construction on the rest of the residence had started. No permit had been issued for the construction. Weeks wrote a letter on June 26, 1990, which was entered into evidence, informing defendant that construction must stop until Weeks received and had an opportunity to review defendant’s blueprint for the structure and any revisions to the plan. Weeks related that defendant never responded to his letter.

Six days later Weeks returned to defendant’s property. Posted at the entryway to defendant’s driveway was a “No trespassing” sign which Weeks did not recall seeing earlier. From his vantage point, Weeks observed that construction was still occurring. On July 9 Weeks again returned to defendant’s property and noticed that further construction had occurred. Having received no plan from defendant to review and having made no inspection of defendant’s structure during construction, Weeks stated that he did not know if defendant’s structure complied with the City’s building standards.

Weeks stated that he was familiar with the City’s zoning ordinance and that section 15 pertains to permits. The applicable section, 15.2.1 provides:

“15.2.1 Building Permit.
15.2.1.1 Building Permit Required. No building or structure shall hereafter be erected or structurally altered until a building permit shall be issued by the City stating that the building or structure and use of land comply with the regulations of this Ordinance and all building and health laws and ordinances of the City.” (City of Galena, Ill., Zoning Ordinance 0 — 75—1, §15.2.1 (1990).)

Weeks said that defendant had not complied with this requirement.

Weeks testified that he was familiar with the action brought by the City against defendant and with the two remedies sought, the assessment of a fine according to the City’s zoning ordinance and the issuance of an injunction. According to Weeks, all the City was really seeking was compliance with the zoning ordinance, i.e., that defendant file the requisite application for a building permit and pay the applicable fee.

Weeks testified that he was familiar with the location of defendant’s property but did not know the size of the property. According to Weeks, defendant’s land was primarily used for agricultural purposes, and construction of a residence on property zoned for agricultural use was permitted. Weeks stated that from the observations he made from some distance away from the structure he could tell that the structure was going to be V-k stories in height but that he had no idea whether the structure complied with the City’s standard for height. Weeks agreed that although he had not specifically inspected defendant’s structure, it was possible that it complied with height and setback standards.

Defendant’s sole witness was Joyce Dunn, defendant’s wife. Dunn testified that a residence had been constructed on the property owned by her husband and her and that she had obtained a permit for the construction from the county. Dunn identified a building permit issued by the county on June 28, 1990. Dunn related that she had to pay double the permit fee because construction had been started on the residence prior to her application for the permit. Dunn recalled that to obtain a permit she was not required to submit a plat or a survey of the property. Rather, she needed only to submit a copy of the house plan.

According to Dunn, Stan Davis (a county building inspector) came out to her property and inspected the footings and the insulation and wrote out a certificate of compliance which was certified by the county clerk. It was Dunn’s understanding that the certificate indicated the construction complied with county ordinances. Dunn related that she and defendant had hired reputable contractors and that she was very satisfied with the work that was done.

Subsequently, the court issued its opinion and order, finding that at the time of the filing of the City’s complaint, defendant was required to comply with the City’s building code. The court fined defendant in the amount of $50 plus costs. Additionally, the court found that as of October 9, 1990, when the county amended its ordinance pertaining to residential building units, those individuals living in an unincorporated area of the county which fell within V-lz miles of the City’s jurisdictional limits need only comply with the building code set forth by the county. The trial court’s order, in pertinent part, is as follows:

“2. The Jo Daviess County Building Code in effect as of the date of the filing of the City’s complaint, that is, July 18, 1990, contained the following provision as set forth in Section 11 — 3 of Chapter 11 entitled Residential Building Units: ‘No person, firm or corporation shall erect, convert to or construct any residential building unit in the unincorporated areas of Jo Daviess County without first obtaining a separate permit therefor, as defined in this ordinance for each such residential building unit, excepting, however, should any such residential building unit be erected or constructed in an unincorporated area of Jo Daviess County which falls within the jurisdictional limits set out under the duly enacted zoning laws of any incorporated municipality located within Jo Daviess County, the permit requirement for said municipality shall control, and if said municipality shall require a building permit for the erection or construction of any residential building unit pursuant to the said zoning laws of the municipality, then no permit hereunder shall be required to be obtained from Jo Daviess County.’
3. That this case involves primarily a building code question even though there is zoning language used and the Court finds that the County of Jo Daviess by passing Section 11 — 3 as amended in 1985 effectively surrendered to the City of Galena all building code powers which it had possessed with reference to that territory within the one and a half mile limit.
4. Consequently, the County of Jo Daviess had no authority to require Defendant Dunn to comply with its building permit regulations as of the date of the institution of this suit.
5. And, the Court finds that the City of Galena had the power at the time of the filing of the complaint to require that the Defendant Dunn comply with the building codes of the City of Galena, and therefore, the Court finds that Defendant Dunn guilty. The Court assesses the fine in this cause in the amount of $50.00 plus costs.
6. With reference to the City of Galena’s request for injunctive relief the Court finds as follows:
a. That on October 9, 1990, the Jo Daviess County Board amended the aforesaid Section 11 — 3 by striking the following language: ‘Excepting, however, should any such residential building unit be erected or constructed in an unincorporated area of Jo Daviess County which falls within the jurisdictional limits set out under the duly enacted zoning laws of any incorporated municipality located within Jo Daviess County, the permit requirement for said municipality shall control, and if the said municipality shall require a permit for erection or construction of any residential building unit pursuant to said zoning law of the municipality then no permit hereunder shall be required to be obtained from Jo Daviess County.’
b. By striking the above paragraph of Section 11 — 3 as aforesaid the County of Jo Daviess then reacquired its sovereign power over the one and half mile limit insofar as it pertains to building permit powers.
c. The Court recognizes that the County of Jo Daviess still has no zoning powers and therefore all zoning ordinances of the city of Galena would be in effect.
d. That the ordinances referred to here are primarily building ordinances. Mr. Weaks [sic] referred to himself as being primarily involved in building inspection.
e. The Court feels that the Illinois State statutes would not and do not pass building permit powers to the City where the County has asserted primarily [sic] control, the reason for this being that if the Court would follow the City’s argument we would have the problem of three different categories of inhabitants of Jo Daviess County. One, those that are within a municipality; two, those that live outside a municipality but within one and a half miles of the City limits; and three, those people who live in the rural areas. Those who would live within the City of Galena would have one building code that they would have to follow. Those who live in the County of Jo Daviess outside the one and a half mile limit would have one building code they would have to follow. And those who lived within the one and a half mile limit would then have to comply with two building codes. The court finds that this is oppressive. Therefore, the Court finds that as of October 9, 1990, the citizens residing in the one and a half mile limitation need only follow the building code as set forth by the County of Jo Daviess.
THEREFORE, the Court denies the City of Galena’s motion for injunctive relief.”

This appeal followed.

The single issue presented is whether the City of Galena’s zoning ordinances can require building permits prior to construction within contiguous territory not more than IV2 miles beyond the corporate limits and not included within a municipality.

The City of Galena, acting pursuant to provisions of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 13—1), has enacted a comprehensive zoning ordinance. Section 4.5 of that ordinance states:

“The powers, limits, and duties established by this Ordinance may be exercised within the corporate limits of the City of Galena and within contiguous unincorporated territory not more than one and one-half (1½) miles beyond the corporate limits of the City of Galena and in accordance with applicable State statutes.” City of Galena, Ill., Zoning Ordinance 0 — 75— 1, §4.5 (1990).

The City points out that since the county of Jo Daviess does not have a county-wide zoning plan, the City has legally exercised its right to zone the l^-mile territory.

The defendant does not challenge this assertion. Defendant has never disputed plaintiff’s power merely to zone the contiguous territory.

Defendant’s position is that the City’s power to zone contiguous territory within IV2 miles of its boundary does not extend to the power to require a nonresident of the City to apply for a building permit for construction.

Defendant argues that plaintiff has confused and intermingled the power to zone property and the power to issue a building permit. Defendant points out that the City’s brief refers to its “zoning permit requirement.”

We note that in the City’s zoning ordinance, which was received in evidence, section 15.2 requires building permits and certificates of compliance. Those pertinent sections are as follows:

“15.2.1.1 Building Permit.
15.2.1.1 Building Permit Required. No building or structure shall hereafter be erected or structurally altered until a building permit shall be issued by the City stating that the building or structure and use of land comply with the regulations of this Ordinance and all building and health laws and ordinances of the City.
15.2.1.2 Plat Must Accompany Application. All applications for building permits shall be accompanied by a plat, in duplicate, drawn to scale, showing the actual dimensions of the lot or lots to be built upon, the size of the building or structure to be erected or structurally altered, its location on the lot or lots, and such other information as may be necessary to provide for the enforcement of these regulations. A careful record of such applications and plats shall be kept in the office of the Zoning Administrator.
15.2.2 Certificate of Compliance.
15.2.2.1 Certificate Required. No building or structure hereafter erected or structurally altered shall be occupied and used until a certificate of compliance has been issued by the Zoning Administrator. The certificate of compliance shall be issued only after the Zoning Administrator makes a finding that the building or structure has been erected or structurally altered in conformance with the provisions of this Ordinance and other health and building laws and in accordance with a building permit.” City of Galena, Ill., Zoning Ordinance 0 — 75—1, §15.2 et seq. (1990).

In reviewing this ordinance requirement we note that the City requires a building permit and that permit requires compliance with the zoning ordinance and all building and health laws of the City. We also note that there is a provision under section 15.2.2 for a zoning certificate to be issued by the Zoning Administrator. It is our opinion that the grant of authority to restrict zoning is different from the grant of authority to restrict building.

Zoning has been defined as “an exercise of the police power that governs where and how land may be used and developed. *** Zoning divides a jurisdiction into a number of zones or land use districts. A zoning ordinance consists of both a text and a map. The text establishes the zoning district and details regulations applicable to each district and land use. The map designates the location and boundaries of each zone created by the text.” Connor, Zoning, in 1 Illinois Municipal Law, ch. 10, §10.2 (Ill. Inst, for Continuing Legal Educ. 1987).

Zoning restrictions are of two categories: (1) the nature of the use which may be made of the property, i.e., residential, industrial or commercial, and (2) restrictions on height, bulk and area. The two are frequently considered together. That is, assuming a particular use such as residential, the question under (2) is what kind of a building can that use be located.

The legislative authority for the imposition of building requirements such as are involved here is found in article 11 of the Illinois Municipal Code, granting general powers to the corporate authorities and, in particular, section 11 — 30—4 of that article, which provides: “The corporate authorities of each municipality may prescribe the strength and manner of constructing all buildings, structures and their accessories and of the construction of fire escapes thereon.” Ill. Rev. Stat. 1989, ch. 24, par. 11 — 30—4.

The legislative authority for the enactment of zoning ordinances by municipalities is found in article 11, section 11 — 13—1, of the Illinois Municipal Code. (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 13— 1.) (See People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove (1959), 16 Ill. 2d 183, 189.) Incidental to the authority to regulate and prescribe the manner of constructing buildings within the corporate limits is the implied authority to require building permits. (Salem National Bank v. City of Salem (1964), 47 Ill. App. 2d 279, 284.) These two grants of authority are distinguished in the case of City of Chicago v. Miller (1963), 27 Ill. 2d 211, 217-18.

The grant of zoning power concerns the height and bulk of buildings; the setback of property from property lines; the limitation of intensity of use of lot areas and the area of open space; the classification, regulation and restriction of the location of trades and industries and the location of buildings for industry, business and residence uses and the division of the municipality into districts to accomplish the foregoing. The grant also provides for the fixing of standards and prohibiting uses for buildings and certain other nonrelevant matters.

The grant of building power relates solely to prescription of the strength and manner of constructing of buildings, structures and their accessories and of the construction of fire escapes thereon.

The Galena zoning ordinance has two provisions which are the focus of the present dispute: (1) section 4.5, entitled, “Contiguous Unincorporated Land,” which extends the ordinance’s ambit to the contiguous unincorporated territory not more than, 1 miles beyond the City limits, and (2) section 15.2.1, which states as follows: “Building Permit Required. No building or structure shall hereafter be erected or structurally altered until a building permit shall be issued by the City stating that the building or structure and use of land comply with the regulations of this Ordinance and all building and health laws and ordinances of the City.” City of Galena, Ill., Zoning Ordinance 0— 75-1, §4.5 (1990).

When these provisions are read together, it is clear that the City requires a City building permit for any building or structure within IV2 miles of the City limits. The City has no authority to require a building permit for construction outside its City limit. It could, of course, require a zoning certificate or a zoning permit or something that would certify that the zoning permitted the construction of the type of building sought. However, that is not what the ordinance provides. It provides for a building permit, and a building permit is different from a zoning certificate.

Cities ordinarily have no jurisdiction beyond their corporate limits, and municipal ordinances are confined in their application to the territory of the municipality adopting them. (Petterson v. City of Naperville (1956), 9 Ill. 2d 233, 243.) But, the legislature may, if it sees fit, confer special extraterritorial powers on municipalities, and when it does so the courts recognize and give effect to them. (9 Ill. 2d at 243.) The exercise of such extraterritorial powers by a municipality is, of course, always subject to the requirement that the ordinance passed pursuant to legislative authority constitutes a valid exercise of the police power and bears a reasonable and substantial relation to the public health, safety or general welfare. (9 Ill. 2d at 244.) The legislature, while providing many extraterritorial powers to the municipality, has not provided that a municipality may require building permits outside its corporate boundaries. A building permit, which involves something quite different from zoning, and generally requires compliance with building code requirements and requires plans and specifications that relate to those requirements, cannot be required by the City of Galena under the guise of its zoning ordinance.

Therefore, the judgment of the circuit court which found the defendant guilty of violation of the zoning ordinances and imposed a fine of $50 is reversed, and the judgment of the circuit court which found that the ordinance no longer required building permits outside of the municipality is affirmed.

Reversed in part; affirmed in part.

WOODWARD and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
      In re MARRIAGE OF SHARON E. JASTER, Petitioner-Appellant, and LEONARD J. JASTER, Respondent-Appellee.
    Second District
    No. 2—91—0229
    Opinion filed December 11, 1991.

      Elizabeth L. Krueger, P.C., of Wheaton (Elizabeth L. Krueger, of counsel), for appellant.
    Anderson & Deitsch & Associates, P.C., of Wheaton (Stephen M. Deitsch, of counsel), for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The petitioner mother, Sharon E. Jaster, appeals from the trial court’s orders related to the children born to her and her former husband, the respondent father, Leonard J. Jaster. She argues that the court abused its discretion (1) in refusing her petition to remove the children to Georgia; (2) in refusing to order the father to pay her attorney fees; and (3) in granting the father tax exemptions for the children. We affirm.

The parties were married in November 1978. Their three children were born in 1981, 1983, and 1985. In April 1989, the mother petitioned for dissolution of the marriage. In October 1989 she petitioned for leave to remove the children from Illinois. In December 1989, the dissolution hearing was continued to June 1990.

In January 1990, the mother moved the children to Georgia to accept a teaching job there. The move was without leave of court, and the father sought and received a court order for her return. The father also petitioned for custody of the children. The mother and children returned to Illinois pursuant to court order.

In February 1990, the court heard the mother’s removal petition. The bulk of testimony was received from the parties; the mother’s expert, clinical social worker and social work professor Sarah E. Bonkowski; and the father’s expert, psychologist Robert B. Shapiro. At the conclusion of the hearing, the court denied removal. The mother brought this appeal. She first challenges whether the court’s denial of removal was against the manifest weight of the evidence. A somewhat detailed review of the evidence is relevant to this issue.

Doctor Bonkowski, who had met with the mother and the children but not with the father, opined that “it would be all right” for the children to leave Illinois with their mother. As a basis for her opinion, Dr. Bonkowski referred to the following: (1) that in Georgia the mother had plans for teaching; (2) that it seemed the mother and the children could be together more and under less financial stress in Georgia; (3) that the mother had found good quality day-care at a cost lower than in the Chicago area; (4) that the Georgia move would be to a college town where the mother could pursue a master’s degree; (5) that although the children express affection for and enjoyment of their father, their primary attachment is apparently to the mother and to each other.

Dr. Bonkowski further observed that the children would miss their friends in Illinois. She also observed that the children were not under treatment for serious health problems.

Bonkowski acknowledged the family’s closeness to one local aunt and cousin, the local presence in Illinois of the mother’s parents, brothers, nieces and nephews, and grandmother. She also acknowledged her knowledge of some strained relations between the father and the mother’s relatives. Regarding the evolving family, Bonkowski observed that the mother had expressed both a desire for the children to have a good relationship with the father and willingness for him to have extended visitation during the summer. She concluded that the move would be healthy for the children.

Dr. Shapiro testified that he had been appointed by the court to participate in conciliation meetings with the parties. In that connection, he had had contact both with the parents and with all the children. He had met with family members on approximately eight days and had administered the Minnesota Multiphasic Personality Inventory to the parties. Based on his evaluation, Dr. Shapiro recommended that the children should remain in Illinois, that the mother should have custody, and that there should be liberal visitation with the father.

Dr. Shapiro testified that he based his recommendation on the children’s attachment to the father. He also acknowledged that he was no expert in the matter, but that he also had considered his feeling that the mother could locate employment in Illinois. He did not think that leaving Illinois would better the children in any way.

Dr. Shapiro stated that the parties were vocal about their having a poor relationship. He had observed angry behavior by the mother towards the father. Also, he questioned the value of Dr. Bonkowski’s evaluation because she had not met with the father. He did not know how one could evaluate the critical issue of the attachment between parent and child without talking to each parent and seeing the child interact with each parent.

The mother testified that she is a trained elementary school teacher and that she has no other training. She and the children live in the family’s three-bedroom house in Carol Stream. She testified that around the time she and the father separated, she applied for teaching jobs at 11 public school districts in the west-suburban area near the family home. She also sent letters to individual principals in the two largest and fastest-growing of those districts. Additionally, she had taken some continuing education and graduate courses. She had received no response to her applications.

The mother also had traveled to some smaller Illinois communities a distance away from her home. She found housing costs comparable to her current costs and chose not to apply to those areas or to any other places in Illinois. She also sent employment inquiry letters to 10 major corporations, to At-Home Data Entry, and the military services.

The mother further testified that in August 1989 she began seeking a teaching job in Georgia. She had lived in Georgia until age 12, and she felt strong family connections there; her relatives there include several cousins and two or three aunts and uncles. She testified that she had secured full-time employment as a chapter I reading teacher, earning $20,000 annually. She had plans for the children’s school and day-care in Georgia and had arranged that they would live in a three-bedroom house that her parents had purchased.

The mother acknowledged that it would be better for her and the children to remain in Illinois if she could' obtain a teaching position and if she had sufficient funds to continue to live in the marital residence. However, according to the mother the Georgia move was in the children’s best interest because of its financial and mental consequences for her. She agreed to the father’s frequent visitation with the children and denied that she wanted to move to Georgia to keep the children away from him.

The father testified that his gross income as a police officer was $39,942. He testified to his frequent visitation with the children since the parties separated, and he stated that he preferred to have sole custody of the children. He thought it was in the children’s best interest for him to have that custody. He had inquired about day-care for the children if they remained in the Carol Stream area. Also, he stated that if the court allowed the mother to remove the children to Georgia, he would try to visit the children there once each month.

The court found that the mother was the preferable parent for temporary and permanent custody of the children. Among the mother’s motivations for requesting removal, the court found fear óf a lowered standard of living and social stigma felt by the children, day-care concerns, and desire to shield the children from the parents’ new relationships. The court additionally found that although the move to Georgia would certainly enhance the mother’s and the children’s short-term quality of life, there was no guarantee that the mother would have continuing employment in Georgia or, more specifically, at the school where she had suggested that the children could be students. The court additionally noted that the new Georgia house and residence in a university town were results of the mother’s parents’ generosity.

The court found that the mother had made no sincere attempts to secure Illinois employment outside Du Page County. It also found that the father wants regular, uninterrupted visitation with the children and that he fears the mother may interfere with his visitation rights if she is allowed to remove the children. According to the court, the only detriment to the children in a move to Georgia would be the possible diminution of their attachment to their father. The court found that if the move were approved, the father’s visitation rights would be seriously impaired as the parties’ proposed visitation schedule was cost-prohibitive, unrealistic, and unworkable.

The court noted that since the separation, the father had had constant involvement with the children and that nearly all the children’s extended family live in the Du Page County or Cook County area. It concluded that removal would not serve the best interest of the children and denied the request.

In her argument that the court’s denial of removal was against the manifest weight of the evidence, the mother refers frequently to the leading Illinois case on removal of children from the State: In re Marriage of Eckert (1988), 119 Ill. 2d 316. In Eckert, the supreme court analyzed section 609 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 609) and applicable case law. It noted that in removal cases the best interest of the child is paramount and that the parent seeking removal has the burden to prove that removal is in the best interest of the child. (Eckert, 119 Ill. 2d at 324-25.) The court emphasized that removal cases require case-by-case analysis, and it listed factors aiding a trial court’s determination of a child’s best interest. Those factors included the following: (1) the likelihood that the move will enhance the general quality of life for both the custodial parent and the child; (2) the custodial parent’s motivation for seeking removal and the other parent’s motivation for opposing removal; and (3) whether a realistic and reasonable visitation schedule can be reached if the move is allowed. 119 Ill. 2d at 326-27.

In its decision, the Eckert court specifically noted that it is in a child’s best interest to have a healthy and close relationship with both parents, as well as other family members, so that the visitation rights of the noncustodial parent should be carefully considered. (119 Ill. 2d at 327.) The court distinguished cases where a parent had not exercised his visitation rights, and it emphasized the Act’s policy of securing “maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children.” (119 Ill. 2d at 327-28.) It noted that the trial court’s determination of a child’s best interest should not be disturbed unless it was “clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred.” 119 Ill. 2d at 328.

We have reviewed the evidence in light of the strict standard of Eckert and have considered the mother’s argument that she sustained the burden of satisfying the Eckert factors and showing that a move to Georgia would be in the best interest of the minor children. Despite the fact that the mother sought removal prior to the order of dissolution, we find no basis to disturb the decision of the trial court in this case.

The evidence here showed, as the court acknowledged, that a move to Georgia would have short-term benefits for the mother and the children. Also, there was no significant showing that the mother’s motivation to move was to interfere with the father’s visitation. Additionally, the parties had proposed a visitation schedule in the event of a Georgia move. On the other hand, the evidence also showed that the father had exercised his visitation rights with the children and that the children had a positive relationship with him. It also showed the father’s limited financial resources to cover substantially increased visitation costs and the mother’s questionable willingness to provide accommodation for frequent Georgia visits by the father.

Considering that evidence, evidence of support from family and friends in the Chicago area, and evidence of the mother’s specific efforts to locate Illinois employment, we do not find that the trial court’s conclusion was clearly against the manifest weight of the evidence or that it appears that a manifest injustice has occurred. While the mother’s evidence may have supported a contrary conclusion by the trial court, the evidence also supports the conclusion before us on review.

The second argument presented by the mother is that the trial court abused its discretion in denying her petition for attorney fees. Under section 508(a) of the Act, the court may order either spouse to pay a reasonable amount for his ex-spouse’s attorney fees. (Ill. Rev. Stat. 1989, ch. 40, par. 508(a).) A party seeking an award of attorney fees must show his own inability to pay and his ex-spouse’s corresponding ability to pay. (In re Marriage of Stadheim (1988), 170 Ill. App. 3d 19, 25.) The awarding of fees is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. In re Marriage of Bussey (1985), 108 Ill. 2d 286, 299.

In this case the trial court found that neither party had the ability to pay the reasonable attorney fees that had been charged. Accordingly, it declined to assess fees against either party. Supporting the court’s determination that the father lacked ability to pay, the record shows that from an after-tax income of $2,854 per month, the father was obligated to pay $l,000-per-month child support, $500-per-month maintenance, 50% of the children’s day-care expenses, plus a variety of other obligations including the children’s extraordinary medical expenses, life insurance for the children’s benefit, reimbursement of the mother for sale of a vehicle, and a share of the family’s several thousands of dollars of assorted financial obligations. Considering this evidence, we find that the court’s conclusion that the father lacked the ability to pay a portion of the mother’s attorney fees, and its resulting denial of an attorney fee award, was not an abuse of discretion.

The final argument presented by the mother is that the trial court abused its discretion in granting the father the right to claim tax exemptions for the three children. In her argument on this issue, the mother includes no citation of authority. Thus, she has not complied with the rules governing briefs (134 Ill. 2d R. 341(e)(7)), and we will not consider this improperly presented argument. See Brown v. Broadway Perryville Lumber Co. (1987), 156 Ill. App. 3d 16, 21-22.

Based on the foregoing, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

DUNN and WOODWARD, JJ., concur.


author: JUSTICE GREIMAN JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE WILLIAMS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—1251
    Opinion filed August 21, 1991.
    Rehearing denied November 26, 1991.
    Supplemental opinion filed November 27,1991.

      Kielian & Walther, of Chicago (M. Jacqueline Walther, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter Hehner, and Edward Maloney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

After a bench trial, defendant was found guilty of unlawful restraint and residential burglary. He was sentenced to the minimum four years for residential burglary and two years for unlawful restraint, sentences to run concurrently.

We affirm the convictions.

For residential burglary, the State must prove that the defendant knowingly and without authority entered the dwelling of another with the intent to commit a felony or theft. (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3.) Under the State’s theory, unlawful restraint was the underlying felony. The felony of unlawful restraint is proven when a person knowingly and without legal authority detains another. Ill. Rev. Stat. 1987, ch. 38, par. 10 — 3.

On appeal defendant asserts that the conviction for residential burglary should be reversed because (1) the State did not prove the two elements of the statute: (a) that the defendant, without authority, entered the dwelling of another and (b) that he entered the house with the intent to commit the underlying felony; (2) the defendant was denied a fair trial because of the introduction of other uncharged misconduct of defendant; (3) the defendant’s cross-examination was unduly restricted; and (4) defendant was improperly convicted of multiple offenses.

Defendant and complainant, Ann Harrison (Ann), jointly owned the residence where the alleged residential burglary occurred. They were married and parties to dissolution of marriage proceedings pending in the circuit court of Cook County.

During the pendency of the matrimonial action, Ann sought and received orders of protection since early 1987, which orders were on several occasions extended in accordance with the appropriate statutory authority.

From time to time defendant visited his children on the premises with Ann’s permission and occasionally slept overnight. Occasionally, defendant and Ann engaged in consensual sexual relations as well. For a short period during the pendency of the order of protection, defendant lived in the residence with the couple’s minor children and Ann resided elsewhere, although at the time of the incident upon which his conviction was based, it is clear that defendant was not residing at the subject premises.

On numerous occasions police were called concerning defendant’s violation of the order of protection. On these occasions, defendant entered the premises without appropriate permission or in some manner harassed his wife.

Evidence showed defendant knew the protective orders were in place in May 1988 and that Ann renewed the orders without allowing them to lapse. There was further testimony that the defendant was not allowed into the residence without Ann’s permission.

On the morning of October 26, 1988, defendant entered the residence by crawling through a basement window. Ann testified that she was in the house at that time preparing to leave when defendant grabbed her from behind and would not allow her to leave. She kept reaching for the door handle, but defendant continued to hold her around the waist. Shortly thereafter, the parties engaged in a violent fight, injuring Ann and ripping her clothes.

Defendant testified that he had been invited by his wife to meet her at the house to discuss reconciliation and upon entering the home he had no intent to commit the alleged underlying felony.

The trial court found that the order of protection was valid and stated it was “crystal clear” that defendant knew and understood the terms of the protective order. The court further determined that defendant’s method of entering the house through the basement window “is indicative of the kind of entry made by a person who does not feel he has a right to enter the premises.” The trial court indicated and believed Ann’s testimony that the defendant had never come on the premises "without her permission and that defendant entered the premises with more than mere discussion on his mind.

The residential burglary statute provides as follows:

“A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.” Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3.

Defendant asserts that the State failed to prove that his entry on the day in question was “without authority” or that it was the “dwelling of another.”

In order to maintain this theory, defendant questions the validity of the order of protection although the record does not disclose that he raised an objection to its admission into evidence during the trial. Where the defendant fails to interpose an objection to a document during the course of a trial and no issue is raised in a post-trial motion, no issue has been preserved for appeal and defendant has accordingly waived any objections in this regard. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

While we agree with this proposition, we also believe that the order of protection was a valid and subsisting order which clearly directed the defendant be restrained from entering the premises which were previously the marital home of the parties. Ill. Rev. Stat. 1987, ch. 40, pars. 2312-19, 2312-14(b)(2).

Under the Illinois Domestic Violence Act of 1986 (Ill. Rev. Stat. 1987, ch. 40, par. 2311 — 1 et seq.), three types of orders of protection may be issued: plenary, emergency and interim orders. (Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 14(a).) Defendant contends that the order at issue was an emergency order and, thus, could extend only 14 days in accordance with sections 217 and 220 (Ill. Rev. Stat. 1987, ch. 40, pars. 2312 — 17, 2312 — 20). However, there was no evidence in the record indicating this protective order was other than a plenary order under section 219 of the statute. Ill. Rev. Stat. 1987, ch. 40, par. 2312-19.

Defendant further suggests that he lacked knowledge of the orders of protection and therefore could not have “knowingly” entered the residence improperly.

A plethora of violent incidents lead us to a contrary view. Time and again the police were called to the residence as a result of defendant’s violation of the order of protection, so that it is difficult to imagine that defendant was not aware of these orders of protection even though the extension of the orders may have been ex parte in the sense that this defendant did not appear.

Further, defendant relies on People v. Wilson (1988), 176 Ill. App. 3d 358, 531 N.E.2d 134, to support his argument that he could not have knowingly broken into a home he jointly owns. In Wilson, defendant was the 17-year-old son of the complainant and had lived at his father’s house prior to leaving of his own accord to live with his grandmother. A judgment of dissolution of marriage required the father to provide the “primary place of residence” for his children, including defendant. Defendant had not lived at the house for 10 months when he broke in one night and stole items belonging to his father. Although the father had occasionally given permission for defendant to retrieve personal property from the house, defendant had never been given formal notice that he was barred from the house. Since his conviction for residential burglary was set aside on grounds other than defendant’s right to enter the premises, reliance here upon Wilson is misplaced.

In People v. Yager (1984), 128 Ill. App. 3d 702, 471 N.E.2d 244, a former foster child of the victims was convicted of residential burglary upon entering the residence after he had ceased to use it as his home. In Yager and the case at bar, defendants previously had had authority to enter the victims’ premises. However, defendants in both cases were unable to show that they had a history of casual entry without permission of the custodial person.

More directly, the Illinois Domestic Violence Act expressly states that the owner of a home may be prohibited from entering the premises if the protected party has a right to exclusive occupancy of the residence. Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 14(b)(2).

Defendant next contends that he did not have the requisite intent to commit unlawful restraint when he entered the premises. He testified that he merely sought to have a conversation with her at that time and that Ann was not in the house. On the other hand, she testified that she was in the home at that time and that the first knowledge she had of his entry was when he grabbed her from behind and sought to restrain her. Ann further testified that he thereafter physically restrained and injured her, refused to leave and made verbal threats.

Evidence of intent is not usually direct, but proved circumstantially by inferences reasonably drawn from the circumstances of the defendant’s conduct. People v. Toolate (1984), 101 Ill. 2d 301, 461 N.E.2d 987 (insufficient evidence to infer intent to commit rape as underlying felony for residential burglary charge); People v. Monigan (1990), 204 Ill. App. 3d 686, 561 N.E.2d 1358 (intent to commit aggravated battery was properly inferred from the evidence to support residential burglary charge even where defendant entered intending to commit one felony but committed another instead); People v. Sehr (1986), 150 Ill. App. 3d 118, 501 N.E.2d 848 (evidence inferred intent to commit theft where defendant broke into stranger’s house and walked into master bedroom and claimed he was merely looking for a place to sleep).

Given the circumstances shown in the record, the curious mode of entry, the spontaneous and continued violence towards Ann and the previous history of violence and harassment, the trier of fact was certainly justified in concluding that defendant intended to commit unlawful restraint at the time of his entry to the premises.

The trial court had an opportunity to observe the testimony and demeanor of the witnesses and found Ann to be a credible witness. Any rational trier of fact could have found the essential elements beyond a reasonable doubt (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453), and the trier of fact must consider the evidence in a light most favorable to the prosecution. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Defendant next argues that the introduction in evidence of other uncharged acts of violence deprived him of a fair trial and may have unduly influenced his conviction.

The prior incidents of violence were properly allowed because they establish that defendant had knowledge of the protective order and showed a pattern of acting in a violent or threatening way toward Ann, thus allowing the trier of fact to draw a reasonable inference as to defendant’s intent. Most of the incidents involve defendant either restraining or harassing Ann, or refusing to leave the house. They are sufficiently similar to the incident in question to show a common scheme reflecting defendant’s intent. People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183; People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59; People v. Burgos (1989), 184 Ill. App. 3d 474, 540 N.E.2d 456.

Defense also contends that the trial court unfairly limited its questioning of Wayne and Ann on various issues surrounding Wayne’s prior arrests for domestic incidents; on the reconciliation of Wayne and Ann; on the fact that Wayne had not been ordered to pay child support; and on the fact that Wayne believed he might still be married to Ann. The defense argues that these excluded questions somehow relate to theories upon which the defense relies.

Defendant failed to make offers of proof to most of the trial court’s rulings which he now finds objectionable. It is difficult to determine whether these rulings were prejudicial to the defendant since an offer of proof is lacking.

While a court does not generally make decisions of this nature lacking an offer of proof in the record (People v. Sanchez (1989), 131 Ill. 2d 417, 546 N.E.2d 574), we recognize that an offer of proof is not a formalistic ritual, but an aid to justice and where justice is not served, the requirement of an offer of proof will not be enforced. People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018.

Where a question obviously indicates its purpose, relevance and materiality and is in proper form or the court understands what the defense is intending to establish, the offer of proof may not be required. People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018; People v. Husted (1981), 97 Ill. App. 3d 160,168, 422 N.E.2d 962.

Even were this court to find that there was an obvious benefit to the trier of fact because of the questions’ contents, the questions do not pass the test of relevance. The same rule obtains on those issues where defendant did make offers of proof regarding the possible reconciliation of the parties and the fact that no child support had been imposed upon the defendant. We find that these also do not meet the test of relevance to the issues of this case.

Defendant next argues that conviction of residential burglary where unlawful restraint is the underlying felony and conviction for unlawful restraint alone is improper.

In Illinois a defendant may be prosecuted for more than one criminal act that arises from the same episode or transaction, as long as the charges do not arise from the same physical act. (People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802.) Defendant here committed two separate criminal acts: (1) residential burglary when he entered the house with the intent to commit unlawful restraint, and (2) unlawful restraint when he forcibly detained Ann and would not allow her to leave.

Finally, defendant suggests the residential burglary statute is inappropriate in this circumstance because it is intended only to provide additional protection for home burglaries and argues that his conduct is merely a violation of the order of protection, which is a Class A misdemeanor.

While defendant admits that certain conduct can violate both an order of protection and criminal statutes, he argues that applying the residential burglary statute in this particular situation is contrary to the legislative intent behind the enactment of the residential burglary.

The Illinois Domestic Violence Act of 1986 does not provide that it is an exclusive remedy. (Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 20.) The residential burglary statute (Ill. Rev. Stat. 1987, ch. 38, par. 19— 3) is intended to provide a mandatory jail sentence for violators. The misdemeanor provided in the Domestic Violence Act does not contemplate or sanction commission of a felony. The residential burglary statute is applied equally to all violators, whether the focus of the invasion is theft, rape or another felony. See People v. Toolate (1984), 101 Ill. 2d 301, 461 N.E.2d 987; People v. Monigan (1990), 204 Ill. App. 3d 686, 561 N.E.2d 1358; People v. Yager (1984), 128 Ill. App. 3d 702, 471 N.E.2d 244; People v. Hawkins (1984), 125 Ill. App. 3d 520, 466 N.E.2d 299.

Ann’s rights to exclusive possession of the premises was founded on the order of protection entered in the pending dissolution case. Residential burglary is an offense against habitation and incorporates the common law concept of burglary. (People v. Bales (1985), 108 Ill. 2d 182, 483 N.E.2d 517.) The marriage between the resident or custodian and the invader does not create any exception under the statute, nor does their joint ownership obviate the court-imposed restrictions on the defendant. Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 14(b)(2); 82d Ill. Gen. Assem., Senate Proceedings, May 19, 1981, at 215-27, and House Proceedings, June 17,1981, at 67-76.

Defendant’s conduct matches the conduct prohibited by the residential burglary statute: he was legally excluded from the premises but broke into the house (“entering) the dwelling place of another”) and restrained Ann (“with intent to commit therein a felony”). His intent to restrain can be inferred from the circumstances and the history of violence he has shown toward her. Defendant’s actions were prohibited by this statute and properly adjudicated under it.

We affirm the trial court’s convictions.

Affirmed.

CERDA, P.J., and RIZZI, J., concur.

SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING

JUSTICE GREIMAN

delivered the opinion of the court:

In addition to the issues addressed in our original opinion, defendant has filed a petition for rehearing in which he requests a reduction in the degree of the offense. Defendant recognizes that because he has not previously raised this issue, it would ordinarily be waived. But given the unprecedented application of the residential burglary statute in the context of a violation of an order of protection under the Domestic Violence Act, we choose to address defendant’s argument to make certain that all issues are fully examined.

Under Supreme Court Rule 615(b)(3), a reviewing court may reduce the degree of the offense of which an appellant was convicted. (107 Ill. 2d R. 615.) This power is only available where a lesser-included offense is involved and should be used with extreme caution and only in rare instances. (People v. Kick (1991), 216 Ill. App. 3d 787, 576 N.E.2d 395; People v. Jackson (1989), 181 Ill. App. 3d 1048, 1051-52, 537 N.E.2d 1054; People v. Coleman (1979), 78 Ill. App. 3d 989, 398 N.E.2d 185.) Defendant requests that this court reduce his offense to either unlawful restraint or violation of an order of protection. He cites Jackson to support his argument that a reduction in offense has previously been made in a residential burglary case to ameliorate the harshness of the result where, though the evidence was sufficient, the court found evidentiary weakness as to some elements.

All three of the cases acknowledge that there are two relevant factors in assessing the reduction of an offense: (1) whether an evidentiary weakness exists and (2) whether the trial judge expressed dissatisfaction with imposing the mandatory sentence. Both factors were present in Jackson and Coleman; however, in Kick, no evidentiary weakness was apparent and notwithstanding the trial court’s reluctance to impose a mandatory sentence, the conviction was affirmed. Kick, 216 Ill. App. 3d at 792-93.

Kick and other cases state that Rule 615(b)(3) may not be read to allow a reduction in the degree of the offense merely out of a sense of “merciful benevolence.” (Kick, 216 Ill. App. 3d at 792; People v. Munday (1985), 134 Ill. App. 3d 971, 481 N.E.2d 338; People, v. Man (1980), 88 Ill. App. 3d 924, 411 N.E.2d 323.) The Kick court observed that it is the legislature’s prerogative to establish sentences and Rule 615(b)(3) may not be construed to sanction any circumvention of the mandatory minimum sentence corresponding to an offense of which a defendant has been proven guilty beyond a reasonable doubt. Kick, 216 Ill. App. 3d at 793.

We find that a defendant’s offense may be reduced only where there is an evidentiary weakness with regard to an element of the offense charged and where the trial judge has expressed dissatisfaction with imposing the mandatory minimum sentence.

In the present case, while there may be some question of defendant’s intent as he entered the premises through the basement window, we find no evidence in the record that the trial judge was dissatisfied with the required imposition of the four-year mandatory minimum sentence. Therefore, we find defendant is not entitled to a reduction in degree of the offense of which he was convicted.

The petition for rehearing is denied.

Petition denied.

CERDA, P.J., and RIZZI, J., concur.


text:
    ANNE RUSSELL, a Minor, by Patti Russell et al., Her Parents and Next Friends, v. GOOD SHEPHERD HOSPITAL et al., Defendants-Appellees.
    Second District
    No. 2—91—0351
    Opinion filed December 12,1991.
    Albert Brooks Friedman and Jane A. Ready, both of Albert Brooks Friedman, Ltd., of Chicago, for appellant.
    Gregory E. Schiller, of Cassiday, Schade & Gloor, and James A. Christ-man, of Wildman, Harr old, Allen & Dixon, both of Chicago, for appellee Good Shepherd Hospital.
    Fredric J. Grossman, James T. Ferrini, Imelda R. Terrazino, Edward M. Kay, and Susan Condon, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, for appellee Kathleen Hodgman.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Anne Russell, by her parents and next friends Patti and George Russell, appeals the trial court’s order dismissing two of the six counts of her suit for medical malpractice against defendants, Good Shepherd Hospital, Kathleen Hodgman, M.D., and Robert Pines, M.D. Plaintiff argues that (1) count V properly pleaded a claim for willful and wanton misconduct by defendant Hodgman in connection with the prenatal care and delivery of plaintiff, an infant born with severe brain damage, and (2) count VI properly pleaded a cause of action for negligence against all defendants under a theory of res ipsa loquitur. Defendant Kathleen Hodgman, in addition to arguing that the trial court properly dismissed the two counts, has moved in this court to dismiss the appeal of count VI. We dismiss the appeal insofar as it relates to count VI and affirm the dismissal of count V.

Plaintiff was born on August 26, 1981, at Good Shepherd Hospital (the hospital). Count I of plaintiff’s second amended complaint, filed October 22, 1990, alleged that defendant Dr. Robert Pines, a licensed obstetrician and gynecologist, was negligent in administering prenatal and delivery care to Patti Russell. Count I alleged specifically that Pines was called in as a consultant by Hodgman to evaluate Patti Russell’s labor and that he was negligent in that he: failed to take over delivery of plaintiff from Hodgman once he saw that plaintiff and Patti Russell were in distress; failed to monitor the fetal heartbeat or respond to the existing fetal emergency; failed to supervise Hodgman or the attending nurses and allowed Hodgman and the attending nurses to undertake a procedure for which they were inadequately trained; failed to recognize plaintiff’s distress and promptly deliver her by cesarean section, resulting in deprivation of oxygen to plaintiff; failed to inform plaintiff’s parents of the seriousness of her condition at discharge from the hospital; failed to monitor properly the administration of pitocin during labor; performed the surgery improperly, allowing the aspiration and inhalation of meconium by plaintiff; and failed to resuscitate plaintiff following her delivery. Count I alleged that as a direct and proximate result of Dr. Pines’ negligence, plaintiff was born with severe and permanent brain damage, causing her to suffer permanent mental and developmental retardation and necessitating medical and custodial care for the rest of her life.

Count II alleged that defendant Kathleen Hodgman, M.D., the physician retained by Patti Russell to deliver plaintiff, was negligent in respects similar to Dr. Pines and also in that she failed to notify plaintiff’s parents of the need for a board-certified obstetrician to attend to Patti Russell’s labor, failed to call in Dr. Pines for a full consultation rather than a limited one, and took over care of plaintiff when she knew or should have known that she was incapable of handling the problems with plaintiff’s delivery.

Count III alleged that the hospital was negligent in that its residents, nurses and technicians were not properly trained to respond to plaintiff’s fetal distress, failed to perform a timely cesarean section on Patti Russell, and failed to obtain the attendance of a qualified obstetrician after plaintiff’s fetal distress put them on notice that such attendance was required.

Count IV alleged that Dr. Pines was guilty of willfully and wantonly injuring plaintiff in that he willfully: left a standing order that no treatment was to be administered vaginally to Patti Russell, with the result that no fetal monitors were placed onto the body of the fetus; failed to monitor Patti Russell’s labor or use standard monitoring and safety devices; and turned the care of plaintiff and Patti Russell back to Dr. Hodgman, an unqualified family practitioner. Count IV prayed for punitive as well as compensatory damages.

Count V alleged that Dr. Hodgman willfully and wantonly injured plaintiff in that, for reasons of economic gain or personal expediency, she willfully: left a standing order that no treatment was to be administered vaginally to Patti Russell, with the result that important fetal monitors were not placed on the body of the fetus; failed to monitor Patti Russell’s labor or use standard monitoring and safety devices; asked Dr. Pines only for a partial consultation rather than turning the patient over to his care; and failed to take steps necessary to determine plaintiff’s cephalopelvic disproportion and thus prevent plaintiff from being injured in the birth canal. Count V prayed for both compensatory and punitive damages.

Count VI alleged negligence by all the defendants. Plaintiff alleged specifically that at all relevant times defendants exercised exclusive control over all devices and equipment necessary to plaintiff’s delivery; that the deprivation of oxygen to plaintiff’s brain during delivery would not have happened without defendants’ negligence; and that this negligence directly and proximately caused plaintiff’s injuries.

In conformance with section 2— 622 of the Code of Civil Procedure (section 2 — 622) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622), plaintiff attached an affidavit from her attorney stating that plaintiff’s attorney had consulted with Dr. William Matviuw, an obstetrician and gynecologist who had reviewed the relevant facts and who had determined that plaintiff had a meritorious cause of action, and that on this basis plaintiff’s attorney concluded that there was reasonable cause for filing the action. Plaintiff attached Dr. Matviuw’s written report. Matviuw stated that from reviewing the medical records he concluded that defendants’ inappropriate use of pitocin, failure to respond appropriately to evidence of fetal distress and failure to monitor the fetus appropriately prior to delivery amounted to negligence causally related to plaintiff’s neurological injuries.

Dr. Hodgman moved to dismiss counts V and VI of the complaint. She argued that count V failed to state a cause of action for willful and wanton misconduct because (1) the allegations that Dr. Hodgman acted willfully and wantonly were mere conclusions; (2) the medical report of Dr. Matviuw did not refer in any way to willful and wanton misconduct and therefore failed to satisfy section 2 — 622; and (3) the punitive damages plaintiff requested in this count were explicitly barred by section 2 — 1115 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1115).

Dr. Hodgman argued that count VI, grounded in res ipsa loquitur, was legally insufficient because (1) plaintiff failed to allege that defendants had exclusive control of the fetus during Patti Russell’s pregnancy, and that during pregnancy it is the mother who in fact has exclusive control of the fetus; (2) count VI failed to allege that plaintiff’s injury would not ordinarily occur in the absence of negligence, and that in fact mental retardation and brain damage may be caused by a multitude of factors; and (3) Dr. Matviuw’s medical report failed to set forth either that defendants had exclusive control or management or that plaintiff’s injury would not have occurred in the absence of negligence and therefore did not comply with section 2 — 622.

The trial court dismissed counts V and VI and expressly found that there was no just reason to delay enforcement or appeal of the dismissal order (see 134 Ill. 2d R. 304(a)). Plaintiff then filed this appeal.

Dr. Hodgman has moved to dismiss the appeal insofar as it seeks reversal of the dismissal of count VI. Defendant Hodgman argues that because res ipsa loquitur is a principle of evidence relating to negligence rather than a theory of recovery separate from negligence, the dismissal of the res ipsa loquitur count was not final and appealable where negligence counts against defendants were left pending. We ordered the motion taken with the case. We now grant the motion and dismiss the appeal from the dismissal of count VI.

We agree with Dr. Hodgman that this case is controlled by Prado v. Evanston Hospital (1979), 72 Ill. App. 3d 622. There plaintiff’s six-count complaint included two counts alleging negligence on the part of the defendants doctor and hospital, two more counts alleging that the doctor and hospital were liable under a theory of res ipsa loquitur, and two counts against the defendant manufacturer of medical equipment. The trial court dismissed counts II and IV. The appellate court dismissed the appeal from this ruling. The court noted initially that inclusion of the language required by Supreme Court Rule 304(a) would not confer appellate jurisdiction if the order appealed from was not in fact final. The court then held that the dismissal of the res ipsa loquitur counts was not final but interlocutory. Crucial to the court’s reasoning was that the four counts against the doctor and hospital were all predicated on a theory of negligence; because res ipsa loquitur is “a rule of evidence and not a separate theory of recovery” (72 Ill. App. 3d at 625), the dismissal of the counts based on that theory of evidence did not determine the merits of a separate cause of action (i.e., one for negligence) as that cause of action (negligence) was still pending against both the doctor and the hospital. If the plaintiff recovered on the negligence theory, the dismissal of the res ipsa loquitur counts would be moot; if she did not recover for negligence, the dismissal of the res ipsa loquitur counts would be reviewable on appeal.

The Prado court noted that in Walker v. Rumer (1977), 51 Ill. App. 3d 1005, aff’d (1978), 72 Ill. 2d 495, the trial court dismissed a count based on res ipsa loquitur and let stand a count based on specific acts of negligence. The appellate court in Walker granted a permissive appeal of the order pursuant to Supreme Court Rule 308. The Prado court characterized the trial court’s order in Walker as interlocutory.

Plaintiff, however, asserts that Prado has been overruled implicitly by Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill. App. 3d 856, and explicitly by Wuench v. Ford Motor Co. (1982), 104 Ill. App. 3d 317. We do not agree. In Rinck, the plaintiff’s complaint alleged negligence (count I) and res ipsa loquitur (count II). The trial court dismissed count II and struck count I with leave to amend. The plaintiff did not amend but instead appealed. The appellate court did not discuss Prado and held that a notice of appeal stating that the plaintiff appealed from the dismissal of count II also brought up for review the trial court’s dismissal of count I. In Rinck neither count of the complaint was pending at the time of the appeal. Thus the appeal from the dismissal of the res ipsa loquitur count could not have been interlocutory as no cause of action for negligence was pending at the time of the appeal. As the plaintiff was appealing from the complete dismissal of any cause of action for negligence (and, indeed, from the complete dismissal of her action), the issue of whether the dismissal of a count based on res ipsa loquitur is appeal-able under Supreme Court Rule 304(a) where a count for negligence remains simply did not arise in Rinck. Rinck therefore is in no way inconsistent with Prado.

Wuench presents a more confusing picture. Two plaintiffs brought an eight-count complaint against two defendants. The complaint included counts sounding in negligence, breach of warranty, strict liability in tort, res ipsa loquitur and “damage to property.” The trial court dismissed the two counts sounding in res ipsa loquitur and the one count for “property damage.” In holding that it had jurisdiction to consider the dismissal of the res ipsa loquitur counts, the Wuench court distinguished Prado in two respects. First, the court reasoned that because the complaint and the appeal before it involved claims other than negligence or res ipsa loquitur, the appeal as a whole could not be dismissed.

Second, the court held that it could entertain the appeal of the dismissal of the res ipsa loquitur counts because “since Prado this court has dealt with the merits of a count alleging res ipsa loquitur while the litigation was still in the pleading stage.” (Wuench, 104 Ill. App. 3d at 318.) As its sole authority for this conclusion, the court cited Rinck. The court did not elaborate on its reasoning; in particular, it did not explain how Rinck, which was an appeal from the dismissal of an entire complaint, affected the rule of Prado that because res ipsa loquitur is a rule of evidence rather than an independent theory of recovery the dismissal of a res ipsa loquitur count is not a final order where it leaves a claim for negligence pending. It is clear to us that the dismissal of the res ipsa loquitur count in Rinck was appealable not because it was in itself final within the meaning of Supreme Court Rule 304(a) but because, the plaintiff’s entire complaint having been dismissed, Rule 304(a) was irrelevant; thus, the dismissal of the res ipsa loquitur count was reviewable regardless of whether it was, considered in isolation, interlocutory or final.

We have recently reiterated the long-standing rule, controlling in Prado, that where a party states one claim in several counts, the dismissal of fewer than all such counts is not a final judgment as to fewer than all of the party’s claims as required by Supreme Court Rule 304(a). (Arachnid, Inc. v. Beall (1991), 210 Ill. App. 3d 1096, 1103; see also Hull v. City of Chicago (1987), 165 Ill. App. 3d 732.) To the extent that Wuench is inconsistent with this rule, we decline to follow Wuench. Also, plaintiff is not entitled to appeal the interlocutory dismissal of the res ipsa loquitur count merely because the dismissal of her count for willful and wanton injury is properly before this court. Palatine National Bank v. Charles W. Greengard Associ ates, Inc. (1983), 119 Ill. App. 3d 376, 381-82; Messenger v. Rutherford (1967), 80 Ill. App. 2d 25, 31.

We therefore dismiss the appeal from the trial court’s dismissal of count VI of the complaint.

We now consider the dismissal of count V of the complaint. Plaintiff argues that count V alleged sufficient specific facts to state a claim against Dr. Hodgman for willful and wanton injury. She also maintains that the count for willful and wanton injury may stand even though the affidavit and physician’s report required by section 2 — 622 did not specifically state that there was a reasonable and meritorious cause for filing a claim based on an allegation of willful and wanton conduct.

Plaintiff, however, has consistently failed to respond to the third argument advanced in support of dismissing count V, namely, that punitive damages are not recoverable in a medical malpractice action. This argument is dispositive. Section 2 — 1115 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1115) unambiguously states that “[i]n all cases, whether in tort, contract or otherwise, in which the plaintiff seeks damages by reason of legal, medical, hospital, or other healing art malpractice, no punitive, exemplary, vindictive or aggravated damages shall be allowed.” Given that plaintiff may not recover punitive damages, we believe that count V was properly dismissed and that we need not decide whether it was otherwise legally sufficient.

Although the allegations of count V differ slightly from those contained in count II, which alleges that Dr. Hodgman was negligent, the differences appear to relate solely to the mental state required to support the allegation that Dr. Hodgman’s conduct was .“willful” or “wanton” rather than merely negligent. Both a claim, of negligence and a claim of willful and wanton misconduct require a plaintiff to establish a duty, the breach of that duty and an injury proximately caused to the plaintiff thereby; however, the willful and wanton misconduct claim requires an additional showing that the defendant acted with intentional or conscious disregard for the plaintiff’s safety, rather than merely carelessly. (Riley v. Physicians Weight Loss Centers, Inc. (1989), 192 Ill. App. 3d 23, 32.) As plaintiff here may not recover punitive damages, whether count V is otherwise sufficient would appear to be an abstract issue; plaintiff would not benefit from the reinstatement of count V, which would simply hold her to a higher burden of proof against Dr. Hodgman than count II (sounding in negligence) in order to recover the same damages. A reviewing court need not pass on abstract questions the resolution of which will not affect the result of the litigation. (Barth v. Reagan (1990), 139 Ill. 2d 399, 419.) Also, at least one reviewing court has upheld the dismissal of an entire count for willful and wanton misconduct on the basis that punitive damages were barred by statute. See George v. Chicago Transit Authority (1978), 58 Ill. App. 3d 692.

We conclude that the statutory bar against punitive damages adequately supports the dismissal of count V. We therefore need not address the parties’ further arguments on this issue.

The appeal from the trial court’s dismissal of count VI is dismissed, and the judgment of the circuit court of Lake County is otherwise affirmed.

Dismissed in part; affirmed in part.

INGLIS and McLAREN, JJ, concur.


author: PRESIDING JUSTICE REINHARD

text:
    BRIAN HEINO, Plaintiff-Appellant, v. MELLON STUART COMPANY et al., Defendants-Appellees.
    Second District
    No. 2—91—0337
    Opinion filed December 13,1991.

      Jeffrey J. Tallis, of Faklis & Tallis, of Chicago, for appellant.
    Jenna Lynn Schoeneman, Sarah Hansen Sotos, and Janella L. Barbrow, all of Knight, Hoppe, Fanning & Knight, Ltd., of Des Plaines, Daniel P. Felix, of Wildman, Harr old, Allen & Dixon, and Carol M. Douglas, of Robins, Caplan, Miller & Ciresi, both of Chicago, and James S. Tukesbrey, of Ridge & Lawler, of Waukegan, for appellees.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Brian Heino, brought suit arising out of his fall during the construction of the Lake County jail facility. Count I is under the Structural Work Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 60) and is against certain named defendants, including Mellon Stuart Company, Wagner Ventilating Company and Midwesco, Inc. (defendants herein). Count II is a negligence action and is not a part of this appeal. Midwesco filed a motion for summary judgment on count I. The circuit court of Lake County granted summary judgment in favor of all named defendants. Plaintiff appeals pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

The sole issue presented by plaintiff for review is whether the trial court properly granted defendants’ motion for summary judgment.

The facts adduced from the pleadings and plaintiff’s deposition, relied on in Midwesco’s motion for summary judgment, indicate that on September 10, 1987, plaintiff was employed as a mason laborer to construct and stock scaffolds for S.G. Bialeck and Sons, Inc. (Bialeck). Bialeck was hired to do masonry work on the Lake County jail project. On that day, plaintiff and another worker were directed by a Bialeck foreman to remove debris and construction equipment from a designated area on the third level of the structure in order to set up concrete block in preparation for the erection of an exterior wall. Plaintiff’s deposition refers to the area as the third floor of the building. He stated that the construction was wider and longer for the first four floors of the building and there was a narrower tower projecting up from the rest of the structure. He further testified that the area where he fell would be considered to be on the inside of the building as it exists today.

Plaintiff was cleaning debris, concrete jacks, wood and nails left by other workers on the project from an area on the third level of the structure so that concrete block could be brought to the area and set up for Bialeck’s bricklayers to construct a wall. Plaintiff lifted a large piece of plywood and stepped back to throw it on top of a pile of debris he was forming. As he did so, a piece of the concrete flooring he was standing on broke away, and plaintiff fell through to the floor below and was injured. There was evidence that the concrete upon which plaintiff stood had been partially cut to allow for the installation of heating and ventilation shafts.

Defendant Midwesco moved for summary judgment as to the Structural Work Act count on the basis that the floor through which plaintiff fell was not a “support” within the meaning of the Act. The trial court granted the motion for summary judgment with respect to this count for all defendants named under that count.

Plaintiff subsequently moved the court for reconsideration of its summary judgment order. Plaintiff, for the first time, presented the deposition testimony of Douglas Schlagel, Mellon Stuart’s project engineer. Schlagel testified in the deposition that the surface through which plaintiff fell was a roof. He stated that the hole in the concrete roof was for either a roof fan or a roof hatch. He testified that the portion of the concrete surface through which plaintiff fell was an exposed roof area now covered with insulation, rubber membrane roofing material and stone. The trial court denied plaintiff’s motion to reconsider.

We consider first defendants’ appellate argument that this second deposition was not part of the record at the time of the original motion for summary judgment and therefore should not be considered by this court on review. However, it appears from the transcript of the proceeding upon the motion to reconsider that the trial judge in his discretion considered the additional deposition of Douglas Schlagel and the further arguments of counsel (see Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 195, 545 N.E.2d 689), but found that nothing new had been raised to change his decision, and denied plaintiff’s motion to reconsider. Although the parties apparently disagree as to whether the Schlagel deposition was considered by the trial court, we conclude it was before the trial court, and it is contained in the record on appeal. Nevertheless, its importance is not significant in deciding the only issue raised on appeal. The principal reason why plaintiff relies on the Schlagel deposition is that Schlagel described the surface plaintiff was standing on when he fell as a roof, whereas in plaintiff’s deposition he stated the surface was a floor. Although these two depositions make unclear whether the surface was the roof or a floor of the building under construction, the characterization of the surface as a roof or as a floor is not of any consequence under the circumstances here in resolving the issue raised as we more fully explain below.

The principal issue in this appeal is whether the structure plaintiff fell through falls within the scope of section 1 of the Act, which provides as follows:

“All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, 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, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Ill. Rev. Stat. 1989, ch. 48, par. 60.

The purpose of the Act is to protect persons engaged in extrahazardous occupations on or near a construction site. (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 151, 317 N.E.2d 573.) The Act is to be liberally construed to effectuate this purpose, although the Act was not intended to, nor has it ever been interpreted to, cover any and all construction activities. (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421-22, 512 N.E.2d 1223.) The question of whether a structure is a scaffold here presents no issue of fact and can be decided in summary judgment as a matter of law. See Crothers v. La Salle Institute (1977), 68 Ill. 2d 399, 411-12, 370 N.E.2d 213.

Part of a permanent structure may constitute a “scaffold” within the contemplation of the Act. (Louis v. Barenfanger (1968), 39 Ill. 2d 445, 449, 236 N.E.2d 724.) Our inquiry is not limited to the identity of the object claimed to be a support or scaffold, but rather how it was being utilized at the time of the injury. (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 422, 512 N.E.2d 1223.) In St. John v. R.R. Donnelly & Sons Co. (1973), 54 Ill. 2d 271, 296 N.E.2d 740, our supreme court, citing Louis v. Barenfanger (39 Ill. 2d 445, 236 N.E.2d 724), held that a roof that was being put to a temporary use as a scaffold was within the confines of the Act and that plaintiff, who was removing debris and stacking runways when he fell through an opening for heating, ventilating and lighting equipment, was entitled to recover. (St. John, 54 Ill. 2d at 274, 296 N.E.2d at 742.) Similarly, in Crothers v. La Salle Institute (1977), 68 Ill. 2d 399, 370 N.E.2d 213, the supreme court held that the roof in question was clearly being used as the only means of support for the workman and was thus a scaffold under the Act. Crothers, 68 Ill. 2d at 412, 370 N.E.2d at 219.

While defendants point out that no reviewing court has ever found a floor to be a scaffold, our research indicates that a floor may be a support under the Act in appropriate circumstances. In Juliano v. Oravec (1973), 53 Ill. 2d 566, 293 N.E.2d 897, the plaintiff was injured when his foot went through the “subflooring” on the second floor of a structure which resulted in molten lead being thrown onto his face and arm. The supreme court concluded that the subflooring “was a ‘stay’ or ‘support’ within the ambit of the Act.” (Juliano, 53 Ill. 2d at 569-70, 293 N.E.2d at 899.) In Crothers, the supreme court cited the above language from Juliano as authority for the proposition that subflooring was a “stay” or “support” within the ambit of the Act “because ‘it is clear that tradesmen *** relied upon the sub-flooring as their sole source of support while working.’ ” (Crothers, 68 Ill. 2d at 412, 370 N.E.2d at 219, quoting Juliano, 53 Ill. 2d at 569-70, 293 N.E.2d at 899.) Further, in Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 512 N.E.2d 1223, our supreme court stated that “ ‘[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.’ ” (Vuletich, 117 Ill. 2d at 423, 512 N.E.2d at 1225, quoting Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1093, 428 N.E.2d 1051; see also Mundt v. Ragnar Benson, Inc. (1974), 18 Ill. App. 3d 758, 771, 310 N.E.2d 633 (newly poured concrete floor, with hole for placement of elevators and air ducts, was a “scaffold” under the Act).) Thus, it is clear that whether the surface through which plaintiff fell is characterized as a floor or a roof is not determinative of the issue.

Having concluded that a roof or floor may be a “support” within the ambit of the Act, we must now determine whether the structure in question was a “support.” In the case at bar, plaintiff, similar to the situation in St. John, was lifting and moving several objects on the uncompleted level of the structure. That portion of the surface served as a working area for plaintiff, who was cleaning the area to set up a place for block for the bricklayers to use in the. erection of a wall. He relied on the surface as a temporary support during the performance of his duties. The surface plaintiff was on, whether called a floor or a roof, was being put to a temporary use as a scaffold and was within the Act.

Defendants rely on Gannon v. Commonwealth Edison Co. (1989), 182 Ill. App. 3d 228, 537 N.E.2d 994, and Choi v. Commonwealth Edison Co. (1984), 129 Ill. App. 3d 878, 473 N.E.2d 385, as standing for the proposition that a floor is not a scaffold within the confines of the Act. Both cases, however, involved plaintiffs who were carrying materials to the construction site and slipped on the floors in question. In both instances, the plaintiffs were simply using the floor as a pathway and not as a construction work support. We note, too, that in Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 325 N.E.2d 607, the plaintiff, who was inspecting a building under construction, tripped and fell against a ladder and then into a hole in the floor. The court held that the floor was not being used as a working platform for the purpose of completing construction, but as a floor. 60 Ill. 2d at 370, 325 N.E.2d at 612.

Finally, defendants argue that the case at bar is factually analogous to Hall v. Canady (1986), 149 Ill. App. 3d 544, 500 N.E.2d 689. Hall is distinguishable from the case at bar because the deck on which plaintiff therein was standing while making repairs to it was an eight-year-old deck which we found was not intended to be a scaffold under the Act. Hall, 149 Ill. App. 3d at 548-49, 500 N.E.2d at 691-92.

For the foregoing reasons, we hold that the circuit court erred in granting summary judgment in favor of defendants and in denying plaintiff’s motion to reconsider. The judgment of the circuit court of Lake County is reversed, and the cause is remanded.

Reversed and remanded.

UNVERZAGT and DUNN, JJ., concur.


text:
    AMERICAN DRUG STORES, INC., et al., Plaintiffs-Appellants, v. A T & T TECHNOLOGIES, INC., f/k/a Western Electric Co., Inc., et al., Defendants-Appellees.
    Second District
    No. 2—90—1462
    Opinion filed December 13, 1991.
    James T. Ferrini, Edward M. Kay, George A. Zelcs, and Thomas A. McDonald, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (Susan Condon, of counsel), for appellants.
    Randi Lyn Cigelnik, of Peterson, Ross, Schloerb & Seidel, of Chicago (Thomas F. Lucas, of counsel), for appellee Garrett & West, Inc.

      Gary L. Taylor, of Rathje, Woodward, Dyer & Burt, of Wheaton, and Thomas H. Morsch and Kathleen L. Roach, both of Sidley & Austin, and Thomas R. Phillips, of AT&T Communications of Illinois, Inc., both of Chicago (George A. Platz, of counsel), for other appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiffs appeal from the judgment of the circuit court of Du Page County which dismissed with prejudice their five-count complaint. We affirm.

On May 8, 1988, a fire broke out at the Illinois Bell switching station in Hinsdale, Illinois. Because of the fire, telephone service in the area was interrupted, with full service restored only after one month. The plaintiffs, all businesses operating in the area affected by the telephone service interruption, filed a class action complaint sounding in negligence and strict liability seeking damages suffered as a result of the fire. Defendants, AT&T Technologies, Inc., and AT&T Bell Laboratories, Inc. (A T & T), designed and manufactured equipment used in the switching station; defendant Garrett & West, Inc. (Garrett), performed service and maintenance work at the station. Both AT&T and Garrett filed motions to dismiss the complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). On October 22, 1990, the trial court granted the motions, finding that Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, precluded recovery on the facts alleged. The court granted plaintiffs leave to file an amended complaint; if no new pleadings were filed, the judgment would then be made final. As plaintiffs did not amend their complaint, the judgment was made final, and the cause was dismissed with prejudice. This appeal followed.

Plaintiffs contend that Moorman not only does not preclude their recovery but actually supports recovery. The Moorman doctrine, as it has come to be known, holds that “when a defect in a product is qualitative in nature and relates to a consumer’s expectation that the product is of a particular quality, resulting in economic loss but no personal injury or property damage, then the plaintiff has a claim for contract damages but not a tort action.” (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 440.) Economic loss has been defined as “ ‘damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits— without any claim of personal injury or damage to other property ***’ [citation] as well as ‘the diminution in the value of the product because it is inferior in quality and does not work for the general purposes for which it was manufactured and sold.’[Citation.]” (Moorman, 91 Ill. 2d at 82.) Tort theory is appropriate when personal injury or property damage results from a sudden or dangerous occurrence. (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 388.) Plaintiffs argue that they have alleged both personal injury and property damage and, therefore, recovery in tort is proper here. We disagree.

As this case was before the trial court on a motion to dismiss, all facts properly pleaded in the complaint must be taken as true. (Scott & Fetzer, 112 Ill. 2d at 387.) Plaintiffs allege that “a sudden and calamitous fire” at the Illinois Bell facility resulted “in damage to the equipment and property located at” the facility, “injury to persons involved in fighting the fire, and the interruption of telephone service to thousands of Illinois Bell customers, including plaintiffs, causing damage to the plaintiffs.” While a sudden and calamitous fire may be a proper type of occurrence from which to bring an action in tort (see Scott & Fetzer, 112 Ill. 2d at 388), plaintiffs have failed to plead properly personal injury or property damage. Plaintiffs argue that as long as some person was injured or someone’s property was damaged by a sudden, calamitous event, anyone else sustaining damage because of the event may seek recovery in tort, even if those damages are strictly economic. We do not view Moorman or any of its progeny as allowing such recovery. Plaintiffs can cite no case from this State which has allowed economic damages to be recovered in tort based upon a nonparty’s personal or property injury. Plaintiffs rely on a single line from Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 178:

“This is not a case where defective construction created a hazard that resulted in a member of the plaintiff’s family being struck by a falling brick from the chimney.”

This single line is not convincing. First, it is not a statement of law; it is merely a negative hypothetical, stating what the case did not involve. Second, the court did not state that, had a member of the plaintiff’s family been struck, plaintiff would have had a cause of action in tort; the cause of action could have belonged to the injured family member.

We believe that tort remedies are available only where the plaintiff is injured in his own person or property. In Moorman, our supreme court stated that “strict liability in tort is applicable to physical injury to plaintiff’s property, as well as to personal injury. *** [T]he essence of a product liability tort case is not that the plaintiff failed to receive the quality of product he expected, but that the plaintiff has been exposed, through a hazardous product, to an unreasonable risk of injury to his person or property.” (Emphasis added.) (Moorman, 91 Ill. 2d at 81.) The court made no mention of injuries or damages sustained by anyone other than the plaintiff. We find further support in Washington Courte Condominium Association-Four v. Washington-Golf Corp. (1986), 150 Ill. App. 3d 681. In Washington Courte, the condominium association and certain unit owners sued in tort the general contractor and several subcontractors involved in the construction of their building, alleging, among other things, improper installation of windows and sliding glass doors which led to damage to insulation, walls, ceilings and floors. One plaintiff alleged that she incurred medical expenses for treatment of an allergic reaction suffered by her son from exposure to mold growing on her carpet as a result of water entering around the faulty doors and windows. The court found that the damage to the units was consequent to qualitative defects, not a sudden, calamitous event, and not recoverable in tort. However, the court also addressed the injury to the plaintiffs child. The court found:

“It is fundamental tort law that the plaintiff in an action for negligence must have suffered a legally compensable injury. [Citation.] In the present case, the minor son was never made a party to this action. Thus, any injuries he may or may not have incurred are irrelevant to the issue before this court.” Washington Courte, 150 Ill. App. 3d at 687.

We find this persuasive. The only personal injury or property damage alleged to have occurred did not happen to the plaintiffs; these injuries, then, are irrelevant to the case before us. A cause of action must be based on the injury suffered by the plaintiff, not on alleged injuries suffered by nonlitigants. (See Northern Illinois Gas Co. v. Vincent DiVito Construction (1991), 214 Ill. App. 3d 203, 218-19.) To allow a cause of action based on such a tenuous link to an injury has no basis in law; we will not stretch existing law to create such an ill-founded rule.

We conclude that Moorman indeed precludes plaintiffs’ recovery on the facts alleged. Therefore, the trial court did not err in dismissing the complaint.

For these reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

McLAREN and NICKELS, JJ., concur.