author: JUSTICE GREEN

text:
    DOROTHY A. WILSON et al, Plaintiffs-Appellants, v. DAVID R. CHERRY, Defendant-Appellee.
    Fourth District
    No. 4—92—0577
    Opinion filed April 22,1993.

      Delmer R. Mitchell (argued) and Gena J. Awerkamp, both of Schmiedeskamp, Robertson, Neu & Mitchell, of Quincy, for appellants.
    Karen L. Kendall, Brent H. Gwillim, and Brad A. Elward (argued), all of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On August 13, 1985, plaintiffs Dorothy A. Wilson, individually and as executor under the wills of each of her deceased parents, Clarence and Louella Adams, and her two sons Clair A. Wilson and Warren H. Wilson brought suit in the circuit court of Scott County against defendant David R. Cherry. Plaintiffs alleged that Cherry, an attorney hired by plaintiffs to represent the executor in the estates of her parents, committed malpractice in failing to make an election pursuant to section 2032A of the Internal Revenue Code of 1954 (Code) (26 U.S.C. §2032A (1976 & Supp. IV 1980)) on either the Federal estate tax or the Illinois inheritance tax returns for those estates. Section 2032A of the Code permits use of a less-than-market-value evaluation for farmland under circumstances existing here.

This appeal comes before us in an unusual posture. The parties apparently entered into an agreement whereby malpractice by Cherry in failing to advise the executor of the section 2032A option was admitted, and Cherry agreed to pay the two estates a total sum of $300,000 as reimbursement for the additional death taxes the two estates were required to pay because of failure to use that option. According to an order of the circuit court, the parties then agreed to reserve the question of whether plaintiffs were entitled to damages for (1) loss of use of the extra tax money required to be paid (prejudgment interest); (2) attorney fees incurred because of Cherry’s error; and (3) losses resulting from a forced sale of the real estate in the estates required in order to pay taxes. These issues were to be submitted to the trial court on the basis of affidavits and other matters on file with the circuit court.

We commend the parties for reaching a partial agreement and attempting to simplify the case. However, the informality with which it was done makes our ruling on several of the issues rather difficult. As we will explain, uncertainty exists as to (1) what type of documents could be filed after a hearing on the merits; (2) what should be done if an issue of fact emerged from the record; and (3) the exact nature of the issues which were before the court. The lack of a sufficiently certain record is dispositive on more than one issue.

On July 18, 1990, following a hearing, the court pronounced a ruling denying the estates’ claim for prejudgment interest. On June 12, 1992, the court issued an opinion order which (1) allowed defendant’s motion to strike certain affidavits submitted by plaintiffs in their post-trial memorandum; (2) denied plaintiffs’ claim for damages arising from an allegedly forced sale of real estate; (3) denied plaintiffs’ claims for interest paid on tax liability resulting from the imposition of higher taxes; (4) denied plaintiffs’ claim for refund for fees paid to Cherry; and (5) allowed plaintiffs’ claim for reimbursement for fees paid to attorneys Robert Stuart and Robert Bellatti and appraiser Thomas DeSollar for work required because of Cherry’s malpractice.

Plaintiffs have appealed contending the court erred in denying their various requests for prejudgment interest, damages for forced sale, reimbursement for interest paid on excess tax liability and reimbursement for fees paid to Cherry. Plaintiffs also maintain the court erred in striking their affidavits. We disagree and affirm.

The parties do not dispute that (1) Clarence Adams died on February 1, 1977, survived by his wife, Louella Adams, and plaintiffs; (2) at the time of his death he owned an undivided one-half interest in a 1,193-acre farm, located in Scott County, Illinois, which he had farmed for many years; (3) his daughter, plaintiff Dorothy Wilson, who had worked with her father in the administration of the farms, was named executor in Clarence’s will; (4) Wilson hired defendant to represent her as executor of her father’s estate; (5) defendant prepared and filed both Federal and State tax returns and Illinois inheritance tax returns with the farm property appraised and valued at fair market value; (6) defendant did not advise plaintiffs to elect a valuation under section 2032A of the Code on either the Federal estate tax return or the Illinois inheritance tax return; (7) the Federal estate tax due was $89,640, and the Illinois inheritance tax due was $77,836.80; and (8) plaintiffs elected to pay the Federal estate tax in installments pursuant to section 6166 of the Code (26 U.S.C. §6166 (1976)). Section 6166 of the Code allows taxpayers to pay the Internal Revenue Service (IRS) interest only for five years and the balance of the tax plus interest at the rate of 4% (see 26 U.S.C. §6601(j) (1976)) over approximately a 10-year term.

The record further indicates that (1) Louella Adams died on January 30, 1981; (2) Dorothy Wilson was named as executor, and she again hired defendant Cherry to represent her; (3) at the time of her death, Louella owned her undivided one-half interest in the 1,193 acres of farmland and other property and the one-half interest which passed to her upon the death of her husband; (4) the farm real estate, which was originally included and taxed in Clarence Adams’ estate, was revalued to reflect what Dorothy Wilson believed to be the proper value of the farm real estate although Cherry advised her the value was probably too low to pass inspection by the Federal and State tax examiners; (5) defendant again did not advise plaintiffs to elect a valuation of the land under section 2032A of the Code; and (6) as with Clarence Adams’ estate, Dorothy Wilson elected to pay the tax due in installments pursuant to section 6166 of the Code.

Within six months after the Federal and State estate tax returns had been filed, the IRS audited those returns. As a result, the IRS increased the value of the farm real estate and increased the tax liability by $97,077.04. When the IRS contacted plaintiffs about the audit, defendant suggested plaintiffs hire another attorney to help with the audit. Plaintiffs hired attorney Robert Stuart. In the course of Stuart’s work, he determined that defendant should have elected to use the section 2032A special use valuation for the farm real estate. Stuart conferred with attorney Robert Bellatti, who confirmed that defendant should have elected to use section 2032A.

The major aspect of plaintiffs’ claim for relief over and above the $300,000 agreed upon is their contention that they should have been permitted recovery for their lost profits from the $300,000 from the time they made excessive tax payments in that sum until they obtained judgment in that amount (prejudgment interest). They begin their argument by pointing to broad language from Siemieniec v. Lutheran General Hospital (1987), 117 Ill. 2d 230, 259, 512 N.E.2d 691, 706, and Zych v. Jones (1980), 84 Ill. App. 3d 647, 652, 406 N.E.2d 70, 75, indicating that an injured party should be entitled to full recovery from another for all loss resulting from the breach of a duty owed by that person to the injured party. Plaintiffs point out that this philosophy is applied to awards of prejudgment interest in cases in chancery without need of any statutory authority for the award. In re Estate of Wernick (1989), 127 Ill. 2d 61, 86-89, 535 N.E.2d 876, 887-89.

However, that rule has not been followed in cases at law. In Geohegan v. Union Elevated R.R. Co. (1915), 266 Ill. 482, 107 N.E. 786, a case concerning condemnation of real estate by a public utility with power to condemn, the court held that a landowner was not entitled to an instruction requiring award of prejudgment interest. The court held that prejudgment interest could not be awarded at common law and could be awarded only if statutory authority existed for the award. The court concluded that the condemning authority was not guilty of “vexatious delay” or any other type of conduct which would entitle the landowner to prejudgment interest under “[sjection 2 of our statute on interest.” Geohegan, 266 Ill. at 492,107 N.E. at 791.

Speaking in the context of whether prejudgment interest can be obtained in suits at law against a governmental unit, the supreme court stated in City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 576, 577, 413 N.E.2d 394, 396, 397, that prejudgment interest is not recoverable absent a statute or agreement unless money has been wrongfully taken and held without a right or claim which is justified. See also Lakefront Realty Cory. v. Lorenz (1960), 19 Ill. 2d 415, 423, 167 N.E.2d 236, 240-41.

At all times pertinent, the only statutory provision which contained any general provision for prejudgment interest was section 2 of the Interest Act (Act) (Ill. Rev. Stat. 1991, ch. 17, par. 6402), which, somewhat like the legislation referred to in Geohegan, stated:

“Creditors shall be allowed to receive [interest] at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance^] on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.”

In Richman v. Chicago Bears Football Club, Inc. (1984), 127 Ill. App. 3d 75, 468 N.E.2d 487, persons who owned a professional football team’s season tickets were eventually granted a refund for home games not held that season because of a labor dispute. Those ticket holders sued for interest covering the period of time from the date the games were not held until payment was made. The circuit court granted summary judgment, and the appellate court affirmed. The appellate court pointed out that prejudgment interest principles were involved. The court recognized the rule that, at law, such interest cannot be recovered absent agreement of the parties or a statute. The court found the conduct of the football club did not come within statutory grounds or those which would permit recovery in equity. The time within which payment was withheld was determined not to be unreasonable.

In Alguire v. Walker (1987), 154 Ill. App. 3d 438, 447-48, 506 N.E.2d 1334, 1341-42, the court recognized that prejudgment interest was not awardable absent statutory or equitable grounds when not agreed upon. The court held that the damages were not sufficiently liquidated to come within the provisions of section 2 of the Interest Act, nor were they the result of circumstances which would have permitted damages to be allowed in equity. The suit involved was for specific performance with an additional request for damages. In Steward v. Yoder (1980), 86 Ill. App. 3d 223, 225, 408 N.E.2d 55, 57, this court recognized that prejudgment interest was allowable in a case at law only under section 2 of the Interest Act and that the money due plaintiffs there was not being held in an unreasonable or vexatious manner within the meaning of section 2 of the Interest Act as charged.

In Northern Trust Co. v. County of Cook (1985), 135 Ill. App. 3d 329, 336, 481 N.E.2d 957, 962, the court reversed an award of prejudgment interest in a medical malpractice action, stating that it was “clear that Illinois statutes do not authorize prejudgment interest in tort cases.” That opinion cited Gardner v. Geraghty (1981), 98 Ill. App. 3d 10, 14, 423 N.E.2d 1321, 1324, a wrongful death case where the court made a similar statement in approving a refusal of the circuit court to permit award of prejudgment interest to be considered. In Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 73, 540 N.E.2d 770, 776, a suit for damages for personal injuries and wrongful death caused by negligence, and in Matieh v. Gerdes (1990), 193 Ill. App. 3d 859, 873, 550 N.E .2d 622, 631, a suit for damages for negligent burning of a barn, the appellate court, without citation of authority, held that award of prejudgment interest would not have been proper.

Plaintiffs maintain that the foregoing cases construe the grounds for award of prejudgment interest in cases at law too narrowly. They rely upon Forrester v. State Bank (1977), 52 Ill. App. 3d 34, 363 N.E.2d 904. There, the plaintiff sued a bank in fraud and deceit in regard to information which was given by the bank about a cattle-feeding operation. The appellate court upheld an award of interest under section 2 of the Interest Act at the rate set forth therein running from the time of a purchase in the cattle-feeding operation until judgment. The court concluded that section 2 of the Interest Act provided for award of prejudgment interest in actions for fraud. Forrester, 52 Ill. App. 3d at 42, 363 N.E.2d at 909.

The Forrester court had relied upon Pfeffer v. Farmers State Bank (1931), 263 Ill. App. 360, where judgment for fraud had been obtained against a bank when agents of a bank had told a borrower that a fire insurance policy on a building was in force when this was known to be false. The building burned, and the borrower was permitted to obtain prejudgment interest under section 2 of the Interest Act. Pfeffer in turn relied upon Schwitters v. Springer (1908), 236 Ill. 271, 86 N.E. 102, and Laughlin v. Hopkinson (1920), 292 Ill. 80, 126 N.E. 591. In Schwitters the plaintiff had been given worthless notes by one to whom he sold land. In a suit for conversion, the court held that the plaintiff was entitled to prejudgment interest under section 2 of the Interest Act. In Laughlin, the court held that the trial court erred in submitting an instruction permitting prejudgment interest in a tort suit for fraud and deceit when the underlying damages were not easily ascertainable.

Plaintiffs also rely upon approval of prejudgment interest by Federal courts or those of another State. In Sanders v. John Nuveen & Co. (7th Cir. 1975), 524 F.2d 1064, 1075, vacated and remanded on other grounds (1976), 425 U.S. 929, 48 L. Ed. 2d 172, 96 S. Ct. 1659, an underwriter of commercial paper who negligently, but in good faith, misrepresented the financial condition of the issuer was held to be subject to prejudgment interest. However, that case was brought pursuant to Federal securities law and did not involve Illinois law as to damages. The cases of Auric v. Continental Casualty Co. (1983), Ill Wis. 2d 507, 331 N.W.2d 325, and French v. Gabriel (1990), 57 Wash. App. 217, 788 P.2d 569, affd (1991), 116 Wash. 2d 584, 806 P.2d 1234, concerned the law of those jurisdictions and not that of Illinois.

Prejudgment interest is not allowed in cases at law unless the damages are liquidated or subject to being easily ascertained (Kaiser Agricultural Chemicals v. Rice (1985), 138 Ill. App. 3d 706, 712, 486 N.E.2d 417, 422), but no case at law has been called to our attention where prejudgment interest has been permitted merely because of ease of computation of the underlying damages. The parties dispute whether the damages here were easily ascertainable, but we need not answer that question.

Plaintiffs maintain that their case is covered by the provisions of section 2 of the Interest Act, which permits prejudgment interest “on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance” (Ill. Rev. Stat. 1991, ch. 17, par. 6402). Plaintiffs assert that the agreement that the excess taxes were in the sum of $300,000 constituted such a settlement. If that were so, prejudgment interest could be allowed from the date of that agreement until the sum was paid or merged into a judgment. However, that agreement did not settle accounts between the parties because other claims of damages arising from the negligence of Cherry were left pending.

Plaintiffs also maintain that the cases of In re Estate of Whitaker (1989), 182 Ill. App. 3d 420, 538 N.E.2d 174, and Rebaque v. Forsythe Racing, Inc. (1985), 134 Ill. App. 3d 778, 480 N.E.2d 1338, where section 2 of the Interest Act was held to authorize prejudgment interest, are analogous to the situation here. We disagree. In Whitaker, a bank acting as executor improperly required beneficiaries to advance money to cover estate taxes when such sums were not necessary. The appellate court upheld an award of prejudgment interest upon the amount one beneficiary was entitled to be reimbursed by the bank. The court apparently concluded that the money involved had been “advanced” to the bank within the meaning of section 2 of the Act. (Whitaker, 182 Ill. App. 3d at 424, 538 N.E.2d at 177.) In Rebaque, a defendant had refused to pay $36,000, a balance due upon purchase of a high-priced racing car. That defendant was found to have no defense to his obligation to make that payment. The court apparently deemed the “settlement of accounts” provision of section 2 of the Interest Act applied. (Rebaque, 134 Ill. App. 3d at 784, 480 N.E.2d at 1342.) As we have stated, the instant obligation of Cherry does not fit within the terms of section 2 of the Interest Act.

Clearly, Illinois does not presently permit the award of prejudgment interest in suits for recovery for negligence. A decade ago, the journal published by the Illinois State Bar Association contained a symposium on the question of whether legislation should be enacted to permit award of prejudgment interest in cases not coming within section 2 of the Interest Act or the equitable theory of awarding such damages. Both the pro and the con articles agreed that the then existing precedent did not permit it. (Londrigan, Prejudgment Interest, The Case For, 72 Ill. B.J. 62 (1983); Smith, Prejudgment Interest, The Case Against, 72 Ill. B.J. 63 (1983).) No legislation changing that rule has yet been passed.

We recognize that an injured party who is eventually compensated for the amount of the loss nevertheless suffers detriment from the lack of use of the money eventually paid as compensation because of the inability to use the money from the day of loss until the day compensation is paid. However, the law is clear that no prejudgment interest is to be awarded in the case before us. The court properly refused to award it.

Plaintiffs’ contention that the court erred in striking certain of its affidavits is important because those affidavits are necessary for plaintiffs to have any foundation for two of their claims of error. One affidavit was made by Deanne Cannell, a certified public accountant, in regard to the sums paid out by the executor in each of the estates. The other was made by Warren Wilson, the son of the executor, who testified as to the circumstances of the two estates at the time a decision was made to sell the farmland involved in order to pay off a bank loan which had been incurred in order to pay death taxes.

During oral argument prior to the entry of the order on July 18, 1990, discussion had occurred concerning plaintiffs’ theory that the estates should be reimbursed for losses resulting from a sale of real estate forced because of the higher taxes which resulted from Cherry’s error. The judge indicated he was uninformed as to the amounts of money which were involved. Plaintiffs’ counsel offered to obtain and submit those figures to the defense and to the court, and the judge responded “[w]e may want you to do that. We 'will see where we are going.” Later, the judge indicated he had a problem with those issues and stated that, if the parties wished “to submit additional matters in connection with” the issues of fees and forced sales of real estate, they could do so.

Finally, at the end of the arguments, the judge stated:

“I will give you thirty days to submit any information or briefs, whatever you want, on those points. Attorney, consultant fees, loss on forced sale of real estate. Anything additional. Or if you want to just call attention to anything that’s already here that you think I may have overlooked or I’m not interpreting correctly, you might say, if you look at page such and such or so and so deposition, such and such and this is all set out, that’s fine.”

In a docket entry order entered following the hearing held on July 18, 1990, the court stated:

“Statements and arguments of counsel made. Court makes certain findings. Court indicates that the issues concerning attorney fees and costs and Plaintiffs’ request for loss on forced sale of real estate are taken under advisement. Leave granted to parties to submit further brief[s], arguments or authorities on said issues not later than August 20, 1990. Court advises parties that Plaintiffs’ Request for Lost Investment Value, also referred to as prejudgment interest, will be denied. Written order to be entered by the Court upon determination of all issues by the Court.”

Plaintiffs received a copy of that order on July 26,1990.

On August 20, 1990, plaintiffs filed the affidavits of Cannell and Warren Wilson, and Cherry filed a motion to strike maintaining that the affidavits were outside the court’s order. Plaintiffs’ attorney wrote to the circuit judge on August 31, 1990, stating that the affidavits were in response to the court’s request. Nearly two years later, on June 11, 1992, in its final order, the court allowed the motion to strike the affidavits. The parties cite various rules for determining the court’s intent in its order. We need not consider them. The record is ambiguous as to what the court intended.

The court could properly have refused to receive further affidavits at the time of the hearing on the merits of the case on July 18, 1990. A party should have its evidence ready to present at the time set for a hearing on the merits. Thus, plaintiffs are not prejudiced when later the court decides it did not intend to allow further evidence to be introduced. No ambiguity in the order caused plaintiffs to refrain from seeking to present additional evidence during a period of time in which they had a right to do so. Under the unusual procedures followed here, we need not decide whether any error resulted from the court’s striking of the affidavit because, in any event, such error did not constitute reversible error.

As we have indicated, the background for plaintiffs’ theory of entitlement to damages for expenses of a forced sale of the realty is set forth in the Cannell and Warren Wilson affidavits. They indicated that after the executor had opted to pay Federal estate taxes by installment, the net earnings from the farmland were not sufficient to cover the payments and borrowings were made from a bank. Apparently, sums were eventually borrowed from the bank to make all of the death tax payments. According to plaintiffs, the amount owed the bank then became too large to be serviced from net income from the land, and a sale of the land was thus forced. However, as the evidence necessary to support this claim was not properly before the court when it decided the claim, the court properly rejected the claim.

Moreover, we notice that the principal amount of recovery plaintiffs sought was $92,190, as being the amount of loss on sales price which the estates received because of being forced to sell. This was based upon an affidavit that farmland in the area had, in general, depreciated in value by 21% between the death of Louella G. Adams and the date of sale. The valuation of the land at the time of Louella’s death was then reduced by 21%, which created a reduction of $92,190. This figure was meaningless in making a determination as to the loss because of being required to sell. This calculation assumes that the land would have been sold at the time of Louella G. Adams’ death had Cherry not erred. That assumption had no basis. The depreciation in the value of the land would have taken place regardless.

Another large portion of the claim for damages resulting from the forced sale was for the lost interest on the $92,190, which a witness put at the sum of $68,358.51. Thus the major portion of the claim for damages arising by the forced sale would have failed even if the Cannell and Warren Wilson affidavits had been considered.

Plaintiffs’ next contention is that they were entitled to be reimbursed for interest which they were required to pay to the Federal government on the excess taxes resulting from Cherry’s negligence. This claim also fails because of the manner in which the case was presented. Although some discussion of the matter occurred during the hearing on July 18, 1990, the claim for this relief was never pleaded by plaintiffs. The circuit court held it was waived, and we find the court did not abuse its discretion in doing so. Moreover, plaintiffs depended upon the affidavits of Cannell and Warren Wilson to prove the amount of interest they would have been required to pay.

Plaintiffs request that we treat the pleadings to be amended to conform to the proof pursuant to Supreme Court Rule 362(b) (134 Ill. 2d R. 362(b)). (See Pinelli v. Alpine Development Corp. (1979), 70 Ill. App. 3d 980, 388 N.E.2d 943.) As we have upheld the court’s striking of the affidavits of Cannell and Wilson, the proof is not present to support such an amendment. We deny plaintiffs’ request.

Finally, plaintiffs assert that a portion of the fees which had been paid to Cherry should be refunded. The court did award the estates $14,939 as reimbursement for fees paid by the estates to two attorneys and an appraiser whose services had been required to do tax work which resulted from Cherry’s negligence. The court refused reimbursement by Cherry, because no figures were presented to show which portion of the fees he received was for work properly performed and which covered that which was negligent. We find no error in this ruling.

For the reasons stated, we affirm.

Affirmed.

STEIGMANN, P.J., and KNECHT, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE INGLIS

license: Public Domain

text:
    JAMES PACKARD, Indiv. and for the use and benefit of Lenore Packard, et al, Plaintiffs-Appellants, v. ROCKFORD PROFESSIONAL BASEBALL CLUB, Defendant (Rockford Park District, Defendant-Appellee; Rock River Concessionaires et al., Defendants).
    Second District
    No. 2—92—0977
    Opinion filed May 4,1993.
    Rehearing denied June 7,1993.

      Lawrence J. Ferolie and Frank A. Perrecone, both of Lawrence J. Ferolie & Associates, Ltd., of Rockford (Albert F. Ferolie, of counsel), for appellants.
    Clark, McGreevy & Johnson, P.C., of Rockford (Donald Q. Manning, of counsel), for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

James and Lenore Packard (plaintiffs) appeal after the trial court dismissed counts V through XII of their third amended complaint against the Rockford Professional Baseball Club (the Club), Rock River Concessionaires, the Rockford Park District (the Park District), and Keith Keating. The Park District is the only defendant participating in the appeal. The two issues plaintiffs present for review can be consolidated to address the one main issue in this case: whether counts V through XII of their third amended complaint stated causes of action against the Park District.

The facts are gleaned from plaintiffs’ third amended complaint. On June 12, 1991, the Club possessed and operated Marinelli Field in Rockford, Illinois, on which its baseball team played. The Club leased the field from the Park District for 70 home baseball games each season from April 1, 1988, to March 1993. The Club was the preferred occupant from April 1 to October 31 each season and had the exclusive use of the field on each game day “beginning not less than ten (10) hours prior to the scheduled starting time of each Home Game *** until at least three (3) hours after the completion of each Home Game.” Security was provided under the lease as follows:

“Baseball Club shall provide all necessary security and shall do so by paying to Park District the actual costs of stadium and parking area security, which shall be provided by Park District’s Ranger Department.”

The lease did not designate which party was in charge of scheduling security personnel.

On the evening of June 12, 1991, the Club hosted a game at Marinelli Field. Plaintiffs attended the game that night with their children. Two other fans became intoxicated during the game. Late in the game, employees of the Club, who were not Park District rangers, attempted to remove the two unruly fans. After having trouble controlling the situation, the Club’s employees requested the assistance of an off-duty Rockford Park District ranger. According to the third amended complaint, the ranger then directed James Packard, who is a Winnebago County sheriff’s deputy and was off duty at the time, to render assistance. Packard was assaulted by the two fans while assisting in their removal from the park.

Plaintiffs brought an action against the Park District, among others, for the injuries James Packard suffered in the assault. Named in the complaint were the Club; Rock River Concessionaires; Keith Keating, one of the fans who assaulted James Packard; and the Park District. The Park District moved to dismiss counts V through XII of plaintiffs’ third amended complaint, those counts directed against the Park District.

After a hearing on the motion to dismiss, the trial court issued a memorandum opinion dismissing counts V through VIII. The trial court reasoned that sections 2 — 103, 3 — 108, and 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (the Immunity Act) (Ill. Rev. Stat. 1991, ch. 85, pars. 2 — 103, 3 — 108, 4— 102) exempt a local public entity from liability for the criminal acts of third persons. The trial court concluded that the Park District was acting in its governmental capacity under section 8 — 10 of the Park District Code (Ill. Rev. Stat. 1991, ch. 105, par. 8 — 10) when it established Marinelli Field and enforced reasonable rules and regulations at the park.

The trial court further ruled that the Park District did not waive its governmental immunity by entering into a written agreement requiring it to provide security at the baseball games. Under section 4— 102 of the Immunity Act, a public entity’s immunity is not waived by a contract for private security service. Ill. Rev. Stat. 1991, ch. 85, par. 4 — 102.

Lastly, the trial court found that, as a matter of law, the exceptions to governmental tort immunity, namely, the “proprietary capacity” and “special relationship” exceptions, cannot exist. Moreover, plaintiffs also failed to allege a cause of action for willful and wanton conduct on the part of the Park District as there were no allegations of “course of action” as required under section 1 — 210 of the Immunity Act (Ill. Rev. Stat. 1991, ch. 85, par. 1 — 210).

The Park District then filed a motion to clarify the trial court’s memorandum opinion because the Park District also had sought dismissal of counts IX through XII. In a subsequent order, the trial court also dismissed counts IX through XII of plaintiffs’ third amended complaint. After the trial court found that there was no just reason to delay enforcement or appeal of the order (see 134 111. 2d R. 304(a)), plaintiffs filed a timely appeal.

Plaintiffs contend that they have stated causes of action against the Park District. They claim that the Immunity Act was inapplicable because the Park District’s conduct was willful and wanton and fell within the “proprietary capacity” and “special relationship” exceptions to governmental tort immunity. The exceptions apply, according to plaintiffs, because the Park District had a contractual obligation to provide security for the Club. Finally, plaintiffs argue that the fireman’s rule is inapplicable because the Park District was not the leaseholder of the park and because the rule has not been extended to cover off-duty police officers.

The Park District responds by arguing that it was not acting in a proprietary capacity and did not have a special relationship with the plaintiffs when providing security for the Club. It claims that the agreement to provide security does not affect the tort immunity it receives under the Immunity Act. Further, the Park District argues that the conduct of its employees on the night of the assault was not willful and wanton. Finally, the Park District agrees with plaintiffs that the fireman’s rule is inapplicable to the factual situation at hand.

When the legal sufficiency of a complaint is challenged under section 2 — 615 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615), all well-pleaded facts are taken as true. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 505.) All reasonable inferences are drawn in favor of the nonmovant. (Geick v. Kay (1992), 236 111. App. 3d 868, 873.) The reviewing court determines whether the allegations in the complaint, viewed in the light most favorable to the plaintiff, are sufficient to state a cause of action. (Burdinie, 139 111. 2d at 505.) A complaint should not be dismissed for failure to state a cause of action unless no set of facts could be proved which would entitle the plaintiff to relief. Geick, 236 111. App. 3d at 873.

We begin with an overview of the Immunity Act. The purpose of the Immunity Act is to protect local public entities and employees from liability arising from the operations of government. (Ill. Rev. Stat. 1991, ch. 85, par. 1 — 101.1.) The definition of a local public entity includes a park district. (Ill. Rev. Stat. 1991, ch. 85, par. 1 — 206.) The Immunity Act does not affect the liability of a local public entity based on contract. (Ill. Rev. Stat. 1991, ch. 85, par. 2 — 101.) Moreover, the Immunity Act is in derogation of the common law and must be strictly construed against the public entity. Kievman v. Edward Hospital (1985), 135 111. App. 3d 442, 445.

The provision of the Immunity Act that is applicable and in dispute is section 4 — 102, which provides:

“Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals. This immunity is not waived by a contract for private security service, but cannot be transferred to any non-public entity or employee.” (Ill. Rev. Stat. 1991, ch. 85, par. 4— 102.)

Plaintiffs argue that the Park District function in providing security to the Club was not governmental, but based on a contractual obligation between the Park District and the Club. Further, plaintiffs interpret the last sentence of section 4 — 102 to include only those situations where the local public entity hires a private security service, not where the local public entity takes on the role of a private security service.

We first discuss whether the Park District was performing a governmental function when it provided security to the Club. If not, under section 1 — 101.1 of the Immunity Act, no immunity is provided (111. Rev. Stat. 1991, ch. 85, par. 1 — 101.1) and the exceptions to governmental tort immunity need not be proven. The Park District’s powers are written in section 8 — 10 of the Park District Code:

“All park districts shall have power to plan, establish and maintain recreational programs, provide musical concerts, to construct, equip and maintain *** athletic fields with seating stands, *** and the power to make and enforce reasonable rules, regulations, and charges therefor.” Ill. Rev. Stat. 1991, ch. 105, par. 8 — 10.

Under section 10 — 7, the Park District also has the power to lease real estate that the park district board deems is not required for park or recreational purposes. (Ill. Rev. Stat. 1991, ch. 105, par. 10 — 7.) A park district board may employ a police force, which is the conservator of the peace within park property. (Ill. Rev. Stat. 1991, ch. 105, par. 4—7.) Further, a park district can exercise powers necessarily implied from the statutes. Charlton v. Champaign Park District (1982), 110 Ill. App. 3d 554, 556.

Viewing the sections of the Park District Code together, we find that the Park District was performing one of its governmental functions when it provided security on property it had leased to the Club. The Park District was enforcing rules it had the power to establish on an athletic field it had the power to lease to a private party. Plaintiffs’ fear that this result will allow the Park District to enter the business of providing private security service is unfounded as this decision is limited to the Park District providing security on property it owns. See Burley v. On the Waterfront, Inc. (1992), 228 Ill. App. 3d 412, 419 (an agreement to provide security protection is not construed as waiving immunity absent a specific provision to that effect).

Because we have found that the Park District was performing a governmental function, the Park District is immune under section 4— 102 of the Immunity Act for failing to provide adequate security service. However, we must decide whether this situation falls within either of the two exceptions to tort immunity pleaded by plaintiffs: the proprietary capacity or the special relationship exception.

In reality, the proprietary capacity and special relationship concepts are two examples of the special duty doctrine. (Burdinie, 139 Ill. 2d at 508.) In order to invoke the special duty doctrine, the plaintiffs must show that the public entity owed them a special duty that is different from one owed to the public at large. (Burdinie, 139 Ill. 2d at 508; Fryman v. JM K/Skewer, Inc. (1985), 137 Ill. App. 3d 611, 617.) This special duty may arise “when the [public entity] acts in a private instead of a governmental capacity *** or when it develops a ‘relationship’ to an individual.” Burdinie, 139 Ill. 2d at 508.

The proprietary capacity portion of the special duty doctrine was discussed in Comastro v. Village of Rosemont (1984), 122 Ill. App. 3d 405. This exception to tort immunity arises when a public entity is paid to provide a level of service greater than that provided to the public at large. (Comastro, 122 Ill. App. 3d at 410.) Consequently, the public entity has taken on the duty to provide that service in a reasonable, nonnegligent manner and its failure to do so is actionable. Comastro, 122 Ill. App. 3d at 410.

In Comastro, the Village of Rosemont police department provided security for a rock concert at the Rosemont Horizon (the Horizon). The Horizon was owned by the Village of Rosemont. (Comastro, 122 Ill. App. 3d at 406.) A spectator was assaulted by another invitee and sued the village, claiming that it breached a duty owed to him to provide protection against the criminal acts of third persons. (Comastro, 122 Ill. App. 3d at 406.) The village admitted that as the owner of the Horizon, its relationship with the plaintiff was that of business invitor-invitee. (Comastro, 122 Ill. App. 3d at 409.) The village owed a duty to protect invitees against criminal acts it anticipated or knew could occur based on previous incidents or special circumstances. (Comastro, 122 Ill. App. 3d at 408.) The reviewing court found evidence of the village’s knowledge of prior criminal acts such that summary iudgment in favor of the village was improper. Comastro, 122 111. App. 3d at 409-10.

The alternate theory relied upon by the Comastro court was the police protection theory. If the municipal police were providing protection for a nongovernmental function, namely, the municipality’s operation of an arena, the police owed the plaintiff a special duty to provide protection from criminal acts. (Comastro, 122 Ill. App. 3d at 410.) Even if the police had been acting in their official capacity, the special duty to protect against criminal acts arises when the police are paid to provide “ ‘a level of service greater than that afforded other [village] residents.’ ” Comastro, 122 Ill. App. 3d at 410, quoting Krantstrunk v. Chicago Housing Authority (1981), 95 Ill. App. 3d 529, 530.

There are a number of reasons why the Comastro case is different from the case at bar. First, in Comastro, the Village of Rosemont’s relationship with the plaintiff was that of business invitor-invitee. Here, the lease between the Park District and the Club specified that the Club had the exclusive right “to exhibit all professional baseball games at Marinelli Field.” The Club also was to provide all necessary maintenance, except for capital improvements, sewer and water, mosquito control, and garbage removal, which were the duties of the Park District. Thus, when a professional baseball game was played on the field, the invitor-invitee relationship was between the Club and plaintiffs.

Second, the Village of Rosemont, by operating the Horizon, was performing a nongovernmental function for which it received no tort immunity. We have already determined that the Park District was performing one of its governmental functions when it provided security to enforce rules and regulations on property it owned and leased out for a purpose designated in the Park District Code. Cf. Ramos v. City of Countryside (1985), 137 Ill. App. 3d 1028, 1034 (city’s sponsorship of summer recreation program was within its governmental functions).

Further, the remuneration the Park District received for providing security service did not affect the applicability of tort immunity because the lease did not provide that the Club was paying for security that was greater than that normally provided by the Park District on its own property. This fact makes the Krantstrunk case distinguishable. In Krantstrunk (95 111. App. 3d 529), the Chicago Housing Authority paid the Chicago police department to provide greater security at the Cabrini-Green housing project than was received by other Chicago residents. Krantstrunk, 95 111. App. 3d at 530.

We hold that the Park District did not owe a special proprietary duty to plaintiffs as security provider at the field because providing security to persons who enter onto park district property is one of its governmental functions pursuant to the Park District Code. (Ill. Rev. Stat. 1991, ch. 105, par. 4 — 7.) The Club was in the position of “proprietor” as it was obligated under the lease to operate and maintain Marinelli Field during the Club’s professional baseball games. This fact distinguishes this case from those relied upon by plaintiffs to prove the “proprietary capacity” exception to tort immunity. Further, the Park District had the statutory power to establish and maintain athletic fields and charge admission therefor. Thus, even if the Park District was the proprietor here, it would be protected by the Immunity Act because it would have been performing a governmental function. The fact that it leased operational and maintenance responsibilities to the Club for professional baseball games does not change our result. Thus, the trial court did not err in dismissing counts V and VII, those counts alleging the Park District’s negligence based on proprietary conduct.

We next address plaintiffs’ contention that there was a “special relationship” formed between the Park District and James Packard such that a special duty arose beyond the scope of the Immunity Act. The “special relationship” doctrine was discussed extensively in Burdinie. (Burdinie, 139 Ill. 2d 501.) A special relationship is created when, due to special circumstances, it becomes the duty of a public official to act on behalf of a specific individual and not the public at large. (Burdinie, 139 Ill. 2d at 508.) For instance, the special relationship duty occurs when law enforcement officials exercise custody or care over an individual, elevating that individual’s status beyond that of a member of the public at large. (Burdinie, 139 Ill. 2d at 509.) In order for this special duty to arise, four elements must be proven by the plaintiff:

“ ‘ “(1) the municipality must be uniquely aware of the particular danger or risk to which the plaintiff is exposed [citation];
(2) there must be allegations of specific acts or omissions on the part of the municipality [citation];
(3) the specific acts or omissions *** must be either affirmative or wilful in nature [citation]; and
(4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality [citation].” Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 970.’ ” Burdinie, 139 Ill. 2d at 508, quoting Fry-man v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 611, 617.

Plaintiffs argue that they have alleged sufficient facts to establish all four elements of a special relationship. They claim that the ranger was aware of the intoxicated and threatening patrons; that the ranger affirmatively placed James Packard in a position of likely assault; and that the ranger, by directing Packard to assist in the removal of the two patrons, placed Packard under the direct and immediate control of the Park District.

The Park District counters by arguing that plaintiffs’ allegations were mere conclusions which the trial court correctly rejected. It claims that plaintiffs have alleged no facts demonstrating the Park Districts’ knowledge of the particular dangers in this case. No allegations were made that the Park District’s acts or omissions were either affirmative or willful. Finally, the Park District argues that plaintiffs have not sufficiently alleged that James Packard was under the direct and immediate control of the Park District at the time he was assaulted.

We will begin our discussion with the fourth element, that of direct and immediate control by the public entity, as the two parties discuss this element in greatest detail. On this point, the Burdinie court stated:

“[T]he fourth test requirement is met where the public employee creates a position of peril ultimately injurious to a plaintiff, as opposed to situations where a plaintiff merely seeks protection from the public employee that is not normally provided. [Citations.] We interpret this to mean that the control element arises when the public employee initiates the circumstances which create the dangerous situation. *** However, where the plaintiff initiates the contact with the municipal employee, it has been held that the plaintiff is not under the direct or immediate control of the municipality.” Burdinie, 139 Ill. 2d at 525-26.

The Park District asserts that it was legally impossible for its off-duty ranger to control an off-duty law enforcement officer because the officer had the affirmative duty to assist in emergency situations. In People v. Barrett (1977), 54 Ill. App. 3d 994, this court stated:

“ ‘[T]he fact that a police officer is on or off duty, or in or out of uniform is not controlling. “It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer acted under the color of law.” ’ ” (Barrett, 54 111. App. 3d at 996, quoting Stengel v. Belcher (6th Cir. 1975), 522 F.2d 438, 441.)

The Appellate Court, First District, further elaborated on an off-duty officer’s duties in two other cases, People v. Bouse (1977), 46 111. App. 3d 465, and Banks v. City of Chicago (1973), 11 Ill. App. 3d 543. At all times and all places, a police officer has the duty to maintain order and to effectuate arrests, which is not affected by whether the officer is in or out of uniform. (Bouse, 46 Ill. App. 3d at 471.) Further, since an officer is “always obligated to prevent the commission of crime in his presence, any action taken by him toward that end, even in his official off-duty hours, falls within the performance of his duties as a police officer.” Banks, 11 Ill. App. 3d at 550.

We agree with the Park District’s position that it did not directly and immediately control James Packard as he took on the role of sheriff’s deputy when he entered the affray. Plaintiffs’ allegation in the third amended complaint that the ranger “directed” James Packard to assist in removing the two unruly patrons does not negate the fact that Packard had the duty, at all places and times, to maintain order. (Bouse, 46 Ill. App. 3d at 471.) Because plaintiffs have not satisfied one of the four elements to show a special relationship between the public entity and Packard, the trial court correctly dismissed counts IX and XI of plaintiffs’ third amended complaint, those counts alleging the Park District’s negligence under the special relationship exception.

Plaintiffs cite Martin v. Chicago Transit Authority (1984), 128 Ill. App. 3d 837, to support their argument that the Park District is not relieved of its duty to protect Packard, an off-duty sheriff’s deputy, from assault. In Martin, a Chicago police officer assigned to the department’s Mass Transit Unit was off duty, out of uniform and riding the elevated train line. When three men attempted to rob the passengers at gunpoint, the officer identified himself and drew his service revolver. He was shot in the head, shoulder, and leg. (Martin, 128 Ill. App. 3d at 838.) The reviewing court reversed the grant of summary judgment for the CTA, reasoning that the inherent risk principal, which limits the duty of landowners to protect police officers in the course of their duty, should not be extended beyond the context of landowner/occupier liability. Martin, 128 Ill. App. 3d at 839.

However, Martin is limited to its facts because the case dealt with the duty of a common carrier, not that of a landowner. (Martin, 128 111. App. 3d at 839-40.) The situation at hand is more closely related to a landowner liability case, in which the inherent risk principal limits the duty owed to police officers. See Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552.

The other cases plaintiffs cite to support their cause of action under the special relationship exception are distinguishable because, in those cases, the plaintiffs had no duty to get involved in the business of the public entity, but entered only after either being directed to by an agent of the public entity or when the public employee initiated the circumstances which created the dangerous situation. (Gordon v. County of Jackson (1992), 231 Ill. App. 3d 1017 (citizen assisted a police officer while officer was being assaulted); Anthony v. City of Chicago (1988), 168 Ill. App. 3d 733 (citizen assisted fire fighter during a fire); Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373 (citizen directed by police to identify his attackers and was beaten again when police failed to restrain the attackers).) Because James Packard, as a sheriff’s deputy, had the affirmative duty to maintain order and to prevent the commission of crime in his presence, he could not be under the direct and immediate control of the Park District. As such, under no set of facts could plaintiffs state a cause of action against the Park District under the special relationship exception to the Immunity Act.

The remaining counts of plaintiffs’ complaint against the Park District, counts VI, VIII, X, and XII, allege willful and wanton conduct. The trial court ruled that plaintiffs failed to state a cause of action for willful and wanton conduct because there were no allegations of “course of action” under section 1 — 210 of the Immunity Act (Ill. Rev. Stat. 1991, ch. 85, par. 1—210). Plaintiffs argue that section 1 — 210 is not applicable because they alleged willful and wanton conduct under the common-law exceptions to the Immunity Act. In the alternative, plaintiffs argue that if section 1 — 210 requires allegations of “course of action,” the supreme court recently ruled that the allegation was unnecessary in Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429. Even if we find section 1 — 210 applicable, plaintiffs claim that they adequately alleged “course of action.”

The Park District contends that the common-law definition of willful and wanton conduct in Burke is virtually identical to the statutory definition in the Immunity Act. Thus, Burke does not affect the statutory requirement to allege “course of action.” Further, the Park District argues that plaintiffs’ complaint fails to contain sufficient facts to state a cause of action for willful and wanton conduct against it.

The Immunity Act defines willful and wanton conduct under section 1 — 210:

“ ‘Willful and wanton conduct’ as used in this Act means a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to the conscious disregard for the safety of others or their property.” (Ill. Rev. Stat. 1991, ch. 85, par. 1 — 210.)

In Benhart v. Rockford Park District (1991), 218 Ill. App. 3d 554, 559, this court held that section 1 — 210, the section defining willful and wanton conduct under the Immunity Act, was meant to be different from the common-law definition of willful and wanton conduct, thereby limiting the liability of public entities. Because we have already determined that the Park District was performing a governmental function when providing security for the Club, the Immunity Act applies, including the statutory definition of willful and wanton conduct. It is of no import that plaintiffs alleged willful and wanton conduct under the special duty doctrine. If a party seeks to allege willful and wanton conduct on the part of a public entity acting within its governmental function, then the statutory definition of willful and wanton conduct is applicable.

Plaintiffs’ reliance on Burke (148 Ill. 2d 429) is misplaced because there the supreme court discussed willful and wanton conduct and its relationship to comparative fault. (148 Ill. 2d at 451-52.) Moreover, the Burke court stated that the common-law definition of willful and wanton conduct was “virtually identical” to the definition in section 1— 210. (Burke, 148 Ill. 2d at 448.) However, the Burke court was relying on Illinois Pattern Jury Instructions, Civil, No. 14.01 (2d ed. 1971), which defines “willful and wanton conduct” as a course of action which shows intentional or reckless behavior. Under the reasoning of either Benhart or Burke, plaintiffs must allege a course of action by the Park District as an element of willful and wanton conduct.

A review of plaintiffs’ pleading demonstrates that they have not alleged sufficient facts to state a cause of action for willful and wanton conduct against the Park District. They allege that the Park District provided one armed and uniformed ranger to provide security for 3,300 patrons; that the ranger failed to discover or observe the violent and unruly conduct of the two intoxicated patrons; that the Club’s security personnel were unable to remove the two fans from the park and requested the assistance of an unarmed and out-of-uniform ranger who was attending the baseball game; that the ranger who assisted knew the patrons were violent and intoxicated; that the ranger directed James Packard to assist in removing the patrons and the ranger left the scene to get his badge; that Packard, who was an unarmed and off-duty sheriff’s deputy, was assaulted by one of the patrons; that the Park District acted willfully and wantonly in failing to discover through its agents that the two patrons had become unruly and intoxicated; that the Park District knew or should have known that the Club’s employee’s attempt to remove the patrons would lead to an assault; and that Park District acted willfully and wantonly in placing James Packard in the position of likely being assaulted by leaving him with untrained security provided by the Club and leaving him without being properly equipped to control the patrons.

Notwithstanding the “course of action” requirement under section 1 — 210, plaintiffs have not alleged facts establishing that the Park District intentionally caused harm to plaintiffs or showed an utter indifference or conscious disregard for their safety. (Ill. Rev. Stat. 1991, ch. 85, par. 1 — 210.) At most, plaintiffs have alleged mere conclusions that the Park District acted willfully and wantonly, which are insufficient to state a cause of action. (Ramos v. City of Countryside (1985), 137 Ill. App. 3d 1028, 1033.) The ranger who directed James Packard to assist in removing the two patrons knew that the fans were being belligerent and verbally threatening, but the two patrons had not been violent physically. If the ranger had left Packard with two fans who had displayed physical violence beforehand, then we believe his conduct arguably may have shown an utter indifference for Packard’s safety. However, the fans’ display of cockiness in refusing to leave the park was not necessarily a precursor to battery. As such, we hold that the trial court did not err in dismissing counts VI, VIII, X and XII, those counts alleging willful and wanton conduct on the part of the Park District.

Finally, plaintiffs devote a portion of their brief to a discussion of the fireman’s rule. This rule was briefed and argued before the trial court pursuant to the Park District’s motion to dismiss. Plaintiffs acknowledge that in Illinois the fireman’s rule has been applied only in the context of landowner or occupier liability. (See Court v. Grzelinski (1978), 72 Ill. 2d 141, 151; Martin, 128 Ill. App. 3d at 840.) The Park District claims that plaintiffs’ attempt to characterize this situation as a fireman’s rule issue is inappropriate. Although the fireman’s rule is analogous to the inherent risk principle discussed in Fancil (60 Ill. 2d 552; see also Martin, 128 111. App. 3d at 840), we agree with the Park District that an analysis of the fireman’s rule here is unnecessary, even though the point of plaintiffs’ argument is that we should not apply the fireman’s rule. The Park District has not attempted to use the fireman’s rule as a shield to liability, so we summarily reject its applicability to the case.

For the foregoing reasons, the order of the circuit court of Winnebago County, dismissing counts V through XII of plaintiffs’ third amended complaint, is affirmed.

Affirmed.

McLaren and QUETSCH, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    WARREN W. NIELSEN et al, Plaintiffs-Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Appellee.
    Second District
    No. 2—92—0862
    Opinion filed April 13, 1993.
    Rehearing denied May 17,1993.

      Burl F. Nader, of Libertyville, for appellants.
    Momkus, Ozog & McCluskey, of Downers Grove (James W. Ozog, of counsel), for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiffs, Warren W. Nielsen and Pamela S. Nielsen, appeal from a judgment of the circuit court of Lake County dismissing their second amended complaint (complaint) against defendant, United Services Automobile Association. The circuit court granted defendant’s motion to dismiss all five counts of the complaint with prejudice pursuant to section 2 — 615 of the Code of Civil Procedure. 111. Rev. Stat. 1991, ch. 110, par. 2 — 615.

The pleadings reveal defendant is an insurance company which sells its insurance policies directly to customers from its home office in San Antonio, Texas. It does not sell its policies through local agents or brokers.

In 1977, shortly after plaintiffs purchased a single-family residence in Lake County, Illinois, defendant sold plaintiffs a home owner’s insurance policy (the policy). Defendant induced plaintiffs to discontinue their then-existing homeowner’s policy by written promotional sales communications promising better insurance and service. The policy provided up to $40,000 of fire insurance coverage for fire damage to plaintiffs’ residence and personal property coverage of up to 50% of the structural fire damage coverage.

Thereafter, defendant annually renewed the policy. From 1977 until 1985, defendant did not increase the amount of fire insurance coverage provided by the policy. In 1985, defendant unilaterally added an “Adjusted Building Cost Endorsement” (the endorsement) to the policy. The endorsement increased the maximum fire insurance coverage provided by the policy.

On April 16, 1988, while the policy was in force, a fire destroyed plaintiffs’ residence and its contents. At that time, the endorsement had increased the policy’s fire insurance coverage for damage to plaintiffs’ residence to a maximum of $44,000.

Plaintiffs were underinsured. The fire damage to plaintiffs’ residence and its contents exceeded the policy limits for these losses by $45,000.

Plaintiffs filed their complaint in this case pursuant to section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 217). The complaint contained a single count sounding in negligence. The trial court granted defendant’s motion to dismiss plaintiffs’ complaint without prejudice and allowed plaintiffs to file an amended complaint.

Plaintiffs filed their first amended complaint, which contained five counts. The five counts were based on theories of breach of contract (two counts), breach of implied warranty, breach of fiduciary duty, and negligence. The trial court ordered plaintiffs’ first amended complaint stricken and allowed plaintiffs to file a second amended complaint.

Plaintiffs’ second amended complaint contained five counts. The counts sounded in five theories, respectively: breach of contract, breach of custom and usage with the strength of law, breach of implied warranty, breach of fiduciary duty, and negligence. Defendant moved to dismiss the second amended complaint. The trial court granted defendant’s motion to dismiss with prejudice. In its judgment, the court found that: count I did not plead a duty which arose under the insurance contract and did not allege damages; count II did not plead a duty under Illinois law and did not allege damages; as to count III, no implied warranty existed under Illinois law under the facts alleged; count IV did not plead facts which supported an agency relationship between the parties; and as to count V, there was no duty under Illinois law under the facts alleged.

On appeal plaintiffs seek reversal of the judgment of the court below contending that each count of the complaint stated a cause of action.

In reviewing the dismissal of a cause of action on the pleadings, well-settled principles guide us. In Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, our supreme court stated:

“A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. [Citations.] When the legal sufficiency of all or part of a complaint is challenged by a section 2 — 615 motion to strike or dismiss, all well-pleaded facts in the attacked portions of the complaint are to be taken as true [citation] and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. A motion to strike a portion of a complaint does not admit conclusions of law or fact unsupported by the specific factual allegations upon which such conclusions rest. [Citation.] Therefore, we will consider only the facts of this case as plaintiff presented them in his complaint.” (Burdinie v. Village of Glendale Heights, 139 Ill. 2d at 504-05.)

We will apply these principles to each count of plaintiffs’ second amended complaint.

Count I of the complaint sounds in breach of contract. Plaintiffs allege that defendant breached a duty to sell plaintiffs fire insurance coverage for the “full, fair, insurable value” (full coverage) of plaintiffs’ residence. Plaintiffs contend that this duty arose from the fact that defendant sold insurance directly to plaintiffs without using brokers or local agents; that defendant should therefore be held to the same standard as a broker or local agent; and that brokers and local agents are required to sell fire insurance only in full coverage amounts.

The trial court found as a matter of law that no such duty could arise under the contract as alleged. We agree.

To plead properly a cause of action in breach of contract, a plaintiff must allege the essential elements of the cause of action. (Allstate Insurance Co. v. Winnebago County Fair Association, Inc. (1985), 131 Ill. App. 3d 225, 233.) The essential elements for breach of contract are: (1) the existence of a valid and enforceable contract; (2) performance by the plaintiff; (3) breach of the contract by the defendant; and (4) resultant injury to the plaintiff. (Allstate Insurance Co., 131 Ill. App. 3d at 233.) A defendant’s failure to comply with a duty imposed by the contract gives rise to the breach. (Hickox v. Bell (1990), 195 Ill. App. 3d 976, 992.) In alleging a breach of contract by a defendant, a plaintiff’s pleadings must allege facts sufficient to indicate the terms of the contract claimed to have been breached. Allstate Insurance Co., 131 Ill. App. 3d at 233.

Here, even when interpreting the allegations of the complaint in the light most favorable to plaintiff, count I of the complaint failed to allege facts sufficient to indicate the terms of the contract which could give rise to a duty for defendant to sell plaintiffs only a full coverage policy. Plaintiffs did not allege in their complaint that they requested or defendant promised to provide coverage greater than that provided by the policy. Plaintiffs did not allege that the policy itself required defendant to provide full coverage. In addition, plaintiffs do not cite any authority for their contention that brokers and agents must sell only full coverage policies. Nor do plaintiffs cite any authority for their position that this purported duty should be imputed to a direct-sales insurer as part of an insurance contract. Under Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)), because plaintiffs cite no authority in support of their argument that a direct-sales insurer must sell only full coverage fire insurance policies, we may reject plaintiffs’ argument for that reason alone. Amp-Rite Electric Co. v. Wheaton Sanitary District (1991), 220 Ill. App. 3d 130,166.

Furthermore, an insurer does not have a duty to review the adequacy of an insured’s coverage when a policy is renewed. (Cleary v. Country Mutual Insurance Co. (1978), 63 Ill. App. 3d 637, 638 (insurer had no duty to advise insured as to adequacy of insured’s automobile liability coverage).) Rather, insured parties have the burden of knowing the contents of their insurance policies and an insurer does not have a duty to suggest full coverage even when the insurer knows the coverage provided is inadequate. Lazzara v. Howard, A. Esser, Inc. (7th Cir. 1986), 802 F.2d 260, 274 (applying Illinois law) (insurer had no duty to advise insured of known gap in insured’s automobile liability coverage).

For these reasons, we hold that the trial court correctly dismissed count I of plaintiffs’ second amended complaint because count I did not plead a duty which arose under the insurance contract as alleged. Accordingly, it is not necessary for us to determine whether count I alleged damages.

Count II of the complaint is entitled “Breach of Custom and Usage with the Strength of Law.” Count II alleges that in Illinois it is customary for local agents or brokers, as insurance sellers, to review the adequacy of their customers’ coverage upon initial sale and upon renewal of an insurance policy and that this function is widely advertised as keeping insureds adequately insured. Count II further alleges that this custom and usage gave rise to a duty requiring defendant, as an insurance seller, to keep plaintiffs fully insured. Count II finally alleges that defendant breached this duty and as a result plaintiffs were underinsured and thereby damaged.

The trial court found that count II did not plead a duty under Illinois law. We agree.

Generally, when the terms of a contract are clear and unambiguous, the terms alone determine the duties of the parties. (Marathon Plastics, Inc. v. International Insurance Co. (1987), 161 Ill. App. 3d 452, 464.) Evidence of custom and usage is only admissible to explain uncertain or ambiguous terms. (Ruthman v. Guarantee Insurance Agency Co. (1980), 89 Ill. App. 3d 997, 999.) Even when appropriate in order to clarify terms, a custom or usage to be binding must be so well known, uniform, long-established and generally acquiesced in as to induce the belief that the parties contracted with reference to it. Metro-Goldwyn-Mayer, Inc. v. A B C-Great States, Inc. (1972), 8 Ill. App. 3d 836, 838.

In count II, plaintiffs failed to plead facts which could give rise to a duty, based on custom and usage, for defendant to sell only full coverage fire insurance policies. Plaintiffs did not allege that the terms of the policy were unclear or ambiguous. Plaintiffs did not allege that the terms of the contract could have been construed to require that defendant sell plaintiffs only full coverage for their residence. Plaintiffs did not allege that the purported custom and usage was so well known that the parties must have contracted with reference to it. Plaintiffs cite no authority for their contention that defendant had a duty, based on custom and usage, to sell plaintiffs only full coverage, and for that reason alone we may consider plaintiffs’ argument waived. Amp-Rite Electric Co., 220 Ill. App. 3d at 166.

Count II really amounts to a public policy argument cloaked in the rubric of custom and usage. Plaintiffs argue that, as a matter of public policy, all insurance sellers, whether local agents or brokers or direct-sales insurance companies, should be required to sell only full coverage fire insurance policies in order to safeguard insureds.

We find plaintiffs’ public policy argument unpersuasive. Such a policy would undermine the general principle that parties may contract for whatever insurance coverage terms they desire. (43 Am. Jur. 2d Insurance §462 (1982).) Such a policy could have unknown economic consequences. Such a policy would overrule the clear law that insureds have the primary responsibility to determine their own insurance needs. (Cleary, 63 Ill. App. 3d at 638.) Plaintiffs do not allege that they did not know what the terms of their policy were or that they had requested additional coverage or that they contracted with defendant expecting the same services provided by a local agent or broker. Under plaintiffs’ view, it would be to an insured’s advantage not to review his own policy for full coverage because obtaining a full coverage policy could increase his premiums while maintaining the policy at current levels might not increase the premium but the insurer would still be required to provide full coverage. Finally, even if a public policy requiring insurance sellers to sell only full coverage policies were warranted, the legislature should enact such a standard, not the courts.

For all these reasons, we hold that the trial court properly dismissed count II of plaintiffs’ second amended complaint. Accordingly, it is unnecessary to reach the issue of whether count II alleged damages.

Count III of the complaint sounds in breach of implied warranty. Count III alleges that by renewing the policy and unilaterally attaching an inflation endorsement defendant impliedly warranted to plaintiffs that they had full coverage. Count III alleges that by not actually providing full coverage defendant breached the implied warranty.

The trial court found that no implied warranty existed under the facts as alleged. We agree.

Implied warranties generally arise under the Uniform Commercial Code (UCC) provisions for the sale of goods. (Ill. Rev. Stat. 1991, ch. 26, pars. 2 — 314, 2 — 315.) However, the UCC does not apply to insurance contracts because insurance contracts are not for the sale of “goods.” (Elrad v. United Life & Accident Insurance Co. (N.D. Ill. 1985), 624 F. Supp. 742, 744, citing J. White & R. Sommers, Uniform Commercial Code, at 6 (2d ed. 1980).) In addition, Illinois courts have held that insurance policies do not contain an implied warranty as to the adequacy of the policy’s coverage. Cleary, 63 Ill. App. 3d at 637-38.

For these reasons, we hold that the trial court properly dismissed count III of plaintiff’s second amended complaint because no implied warranty existed under the facts as alleged.

Count IV of plaintiffs’ complaint alleges breach of fiduciary duty by defendant. Count IV again alleges that fire insurance can only be purchased in full coverage amounts. Count IV also alleges that, as the seller of the policy to plaintiffs, defendant was acting as either plaintiffs’ agent or their broker which gave rise to a fiduciary duty, as a matter of law, for defendant to sell plaintiffs only a full coverage policy. Count IV alleges that defendant breached this fiduciary duty by issuing a renewal policy for less than the full coverage amount.

The trial court found that the allegations of the complaint did not plead facts which supported an agency relationship between the parties. We agree.

In an insurance setting, an agent or broker acts in an agency relationship for the insured when the agent or broker acts as an intermediary for the insured with an insurer on behalf of the insured. (Black v. Illinois Fair Plan Association (1980), 87 Ill. App. 3d 1106, 1109.) An agent or broker acting in an agency relationship for an insured with an insurer is a fiduciary of the insured and owes fiduciary duties to the insured. Black, 87 Ill. App. 3d at 1110.

Here, plaintiffs concede that no agent or broker acted in an agency capacity on their behalf with respect to defendant, the insurer. In fact, defendant represented its own interests as a principal, not as plaintiffs’ agent. However, plaintiffs argue that because defendant was a seller of insurance, the fiduciary duties of an agent or broker acting in an agency relationship for the insured were imputed to defendant. We disagree. In Illinois, there is no fiduciary relationship between an insurance company and an insured. (Overbey v. Illinois Farmers Insurance Co. (1988), 170 Ill. App. 3d 594, 605.) Without a fiduciary relationship, there are no fiduciary duties and no basis for a cause of action alleging breach of fiduciary duties. Overbey, 170 Ill. App. 3d at 605.

Even if, arguendo, there was a fiduciary relationship between an insurer and an insured, plaintiffs’ allegations fail to support a duty to sell only full coverage. The primary function of an agent or broker acting in an agency relationship for an insured is faithfully to negotiate and procure an insurance policy according to the wishes and requirements of the insured. (Shults v. Griffin-Rahn Insurance Agency, Inc. (1990), 193 Ill. App. 3d 453, 456.) Here, plaintiffs do not allege that defendant failed to procure insurance according to their wishes. Rather, plaintiffs again resort to their premise that a vendor must only sell full coverage fire insurance. For the reasons discussed above, this premise must be rejected.

Accordingly, we hold that the trial court properly dismissed count IV of plaintiffs’ second amended complaint.

Count V of plaintiffs’ complaint sounds in negligence. The complaint alleges that, as the vendor of fire insurance to plaintiffs, defendant had a common-law duty to sell plaintiffs only full coverage insurance. The complaint alleges that defendant negligently breached its duty to plaintiffs when it failed to determine plaintiffs’ full coverage needs and issue a policy for full coverage. Finally, the complaint alleges that defendant’s negligence directly and proximately caused plaintiffs to be underinsured and suffer damage when a fire destroyed their home.

In its order to dismiss count V, the trial court found that defendant had no duty under the facts alleged. On appeal, defendant contends there was no duty and that the alleged damages are not recoverable because they are based on a tort theory which does not allow recovery of economic damages.

To state a cause of action for negligence, a complaint must allege facts sufficient to show the following elements: the existence of a duty, breach of the duty, and injury to the plaintiff proximately caused by the breach. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 45.) Whether a legal duty exists is a question of law to be determined by the court. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140.) The question before us is whether the law imposed a duty on defendant, as a vendor of residential fire insurance, to only sell plaintiffs a fire insurance policy providing full coverage.

We conclude that the law does not impose such a duty. Plaintiffs failed to cite any authority for their contention that the law imposes a duty on defendant to only sell full coverage policies. This alone is a sufficient basis to reject plaintiffs’ argument. (Amp-Rite Electric Co., 220 Ill. App. 3d at 166.) In addition, Illinois case law is contrary to plaintiffs’ position. An insurer has an implied duty of good faith and fair dealing with respect to an insured. (Robacki v. Allstate Insurance Co. (1984), 127 Ill. App. 3d 294, 297.) But this duty does not include the burden of reviewing the adequacy of an insured’s policy when the policy is renewed. (Cleary, 63 Ill. App. 3d at 638.) Finally, although we recognize plaintiffs’ public policy arguments and realize that the existence of a legal duty is ultimately a question of public policy (Shults, 193 111. App. 3d 453), we cannot agree with plaintiffs’ public policy arguments. We believe it is the insured, not the insurer, who best knows his insurance needs and the premium he can afford. If full coverage was always required, a potential insured could be faced with a choice of having to purchase more insurance than he could afford or no insurance at all. If an insured is to be faced with such a choice, it is up to the legislature to mandate that choice.

A final matter before us is whether the Moorman doctrine (Moor-man Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 88) acts to bar the recovery of plaintiffs’ economic losses under plaintiffs’ tort theory of negligence. Plaintiffs note that our supreme court’s recent opinion, after rehearing, in Collins v. Reynard (1992), 154 Ill. 2d 48, allowed an exception to the Moorman doctrine for lawyer malpractice suits. Plaintiffs contend that count V of their complaint alleges professional malpractice which should also be exempt from the Moorman doctrine under Collins. Plaintiffs also cite Chief Justice Miller’s special concurrence in Collins and argue it held that the Moorman doctrine only applies in a context of true commercial damages and therefore should not apply in this case because plaintiffs’ transaction with defendant was not commercial in nature.

We disagree with both of plaintiffs’ interpretations of Collins. Writing for the court, Justice Heiple stated, “the ruling we announce today is limited to the specific field of lawyer malpractice as an exception to the so-called Moorman doctrine and to the distinctions separating contract from tort.” (Collins, 154 Bl. 2d at 52.) Accordingly, plaintiffs’ contention that Collins supports a kind of general exception to the Moorman doctrine for professional malpractice suits based on tort theories is specifically belied by the text of the Collins opinion. We also disagree with plaintiffs’ contention that the special concurrence in Collins limits application of the Moorman doctrine to commercial contracts. While the special concurrence notes that the doctrine has most often been applied in cases involving commercial contracts, it does not limit the doctrine’s application to commercial contracts. In fact, the special concurrence stated that “[i]n essence, the economic loss, or commercial loss, doctrine denies a remedy in tort to a party whose complaint is rooted in disappointed contractual or commercial expectations.” (Emphasis added.) Collins, 154 111. 2d at 54.

The Moorman doctrine applies in this case precisely because count V of plaintiffs’ complaint was rooted in disappointed contractual expectations even though count V sounded in negligence. As indicated above, we have concluded that defendant did not have a duty to plaintiffs with respect to the adequacy of their fire insurance policy coverage apart from their contractual undertakings. Accordingly, under the Moorman doctrine, plaintiffs may not recover economic losses alleged in a count based on tort theory such as count V.

For all these reasons, we hold that the trial court properly dismissed count V of plaintiffs’ second amended complaint.

The judgment of the circuit court of Lake County granting defendant’s motion to dismiss plaintiffs’ second amended complaint and dismissing all five counts of the complaint is affirmed.

Affirmed.

McLaren and QUETSCH, JJ., concur.


author: PRESIDING JUSTICE TULLY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY WILLIAMS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—91—0246
    Opinion filed March 31,1993.
    Patrick G. Reardon, of Chicago, for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

Defendant Jerry Williams was charged with one count of threatening a public official. Following a bench trial, Williams was found guilty and sentenced to two years’ felony probation, the first 60 days to be served in home confinement.

Defendant Williams was arrested on October 30, 1989, for a phone call allegedly made by him, threatening the life of Richard M. Daley, mayor of the City of Chicago. At 6:52 p.m. on October 30, 1989, the 911 police emergency line received a call from an unidentified person who said: “I got a bullet for Daley’s back tomorrow, baby, eleven o’clock *** see you there. He’s dead.” The operator handling the call was able to identify the telephone number and address of the calling telephone as that of the defendant, because it was displayed on a computer screen.

The police subsequently arrested Williams. The operator, Sharon Godbold, called to verify Williams’ phone number at which time she engaged Williams in a conversation, asking if the number displayed on her computer was his phone number. The number that she called was the number which had been displayed on her computer screen when the threatening call was received. At that point, the police were at the door of Williams’ home.

At trial, the prosecution tendered to the defense a cassette tape which contained, in sequence, a recording of the original threatening call, numerous conversations of police officers, followed by the conversation between defendant and Godbold. Hence, this same tape, marked as defense exhibit No. 8, contained samples of the voice known to be that of the defendant and of the voice of the threatening caller. The defense argued that each voice was the voice of a different person; however, Godbold testified that the voices were identical.

The defense then attempted to cross-examine Godbold with a duplicate cassette which eliminated the intervening police calls, such that the voice of the defendant immediately followed that of the threatening caller. The State objected to the admission of this alternative tape on the basis that the proper foundation for introduction of the tape into evidence had not been laid.

By stipulation, the parties admitted the report of a voice print expert, Steven Cain, who, by using a spectrograph and by listening, was unable to render an opinion as to whether the voices were the same. Cain stated that the evidence was “far from conclusive.”

Following his arrest, the police discovered two vintage guns kept in a bucket in defendant’s apartment. These were admitted into evidence. Williams testified that he never called the 911 emergency line and he never made any of the threats contained on the tape. Williams further produced a series of photographs showing incoming telephone lines into the basement of the multiunit building where he lived. Many of these lines were housed in open panels on the walls in an unlocked basement. Another exhibit showed a phone call as having been made from his telephone, while Williams was in custody following his arrest. Williams stated that his apartment had been unoccupied while he was in custody and that he lived alone at 817 W. 83rd Street in Chicago.

An expert in the telephone communications business, William Cole, testified in the course of his employment as an electronics engineer in the communication industry for 33 years, that people possessing cordless telephones, such as the one owned by defendant Williams, would be able to activate Williams’ base station in his home. The caller could be linked through Williams’ telephone line and not the caller’s own line. Therefore, the caller could have been anywhere in Williams’ building or within the transmitting area. Cole examined Williams’ phone in his laboratory and concluded it was the type of telephone that had been the culprit in the bulk of false and mistaken calls by the early model cordless telephones. Cole also indicated that the terminal box in Williams’ building contained simple telephone jacks for each line on an “open multiconnection panel.” Anyone with an ordinary telephone could hook up a line to any jack at random, and then make a phone call credited to anyone in the building, including Williams. This call would subsequently appear on the 911 computer screen as coming from the residence connected to that phone jack.

This evidence notwithstanding, the trial judge found Jerry Williams guilty. On January 11, 1991, the court heard and rejected defendant’s arguments for a new trial. Williams was sentenced to two years’ felony probation, the first 60 days to be served in home confinement.

On appeal, defendant raises four possible errors as warranting reversal: (1) the charging instrument in this case is facially defective in that it fails to describe defendant’s state of mind, and this is a specific intent crime; (2) the State failed to prove defendant guilty beyond a reasonable doubt; (3) the trial court improperly excluded from evidence the alternative tape, which eliminated extraneous police calls; and (4) the trial court improperly admitted into evidence two guns found in defendant’s apartment.

First, defendant maintains that the charge of threatening a public official (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 9(2)) was defective in that the threat was not conveyed to the public official in this case, namely, Mayor Richard M. Daley. Defendant was charged under the following statute:

“§12 — 9. Threatening public officials, (a) A person commits the offense of threatening a public official when:
(1) that person knowingly and wilfully delivers or conveys, directly or indirectly, to a public official any telephone communication, letter, paper, writing, print, missive, or document containing a threat to take the life of or to inflict great bodily harm upon the public official or a member of his immediate family and
(2) the threat was conveyed because of the performance or nonperformance of some public duty, because of hostility of the person making the threat toward the status or position of the public official, or because of some other factor related to the official’s public existence.” (Emphasis added.) Ill. Rev. Stat. 1984, ch. 38, par. 12 — 9(a).

Defendant argues that the charging instrument is fatally defective in that it does not contain the elements of the crime as listed in section 12 — 9(a). The charging instrument stated in relevant part that

“Jerry Williams committed the offense of threatening a public official in that he, knowingly and wilfully delivered and conveyed indirectly, by means of a telephone conversation, in which he threatened to inflict great bodily harm upon and to take the life of Richard M. Daley, Mayor of the City of Chicago, Hlinois, in violation of Chapter 38, Section 12 — 9(a) of the Illinois Revised Statutes 1985 as amended.”

Defendant specifically contends that the charge fails to allege delivery of a threat to a public official, fails to allege an intentional state of mind and fails to allege hostility toward a public official in his official capacity.

This court disagrees with defendant’s presumption and finds that the conveyance of a threat to a public official was implicit in the charge. Moreover, the accused manifested hostility by way of threatening to shoot the mayor. Defendant’s contention that the information is defective is without grounds. The so-called threat was conveyed toward “Daley” because of the fact he is the mayor of Chicago, and in that capacity as mayor, a public duty exists. It can be reasonably inferred therefrom that the threat was conveyed because of Daley’s performance or nonperformance of some public duty as mayor of Chicago. Hence, we cannot accept defendant’s claim that the information in the charging instrument was fatally defective.

The main issue to be resolved by this court is whether the State proved beyond a reasonable doubt that defendant made the threatening phone call. The evidence established that an unidentified person called the 911 operator and threatened to shoot and kill Mayor Daley. The testimony of the expert witness, Cole, was certainly believable. It is clear that someone made a threat to the mayor of the City of Chicago, but what is not clear and what has not been proven beyond a reasonable doubt was that the call to 911 was made by defendant or from a telephone under defendant’s control.

A conviction cannot be sustained on doubtful, vague and unreliable testimony. (People v. Dowaliby (1991), 221 Ill. App. 3d 788, 582 N.E.2d 1243; People v. Wehrwein (1989), 190 Ill. App. 3d 35, 545 N.E.2d 1005.) The voice expert could not render an opinion as to whether defendant’s voice was the same as that of the unidentified caller. Moreover, the electronics expert testified that anyone could have made the call from defendant’s phone line, given the type of cordless phone used by defendant and the unlocked phone box in the basement of his apartment building. Another phone call was made from defendant’s phone while he was in custody, though his apartment was supposedly unoccupied at the time.

Whether defendant in this case was the unidentified caller was not sufficiently proven by the State. As a matter of law the evidence was not sufficient to convict defendant beyond a reasonable doubt. Therefore, defendant’s conviction must be reversed.

The trial judge further abused his discretion when he prevented defense from admitting into evidence an alternative tape, wherein the intervening police calls were removed, such that the voice of the caller and the voice of defendant were played side by side. In an attempt to lay foundation for the shortened tape, the defense requested to play this tape to the State’s key witness, Godbold, the operator who took the 911 call. The tape’s authenticity had been testified to by way of offer of proof by the expert who made the duplicate tape.

The concept of presenting an alternative version of a taped recording, wherein the sequence of the voices is rearranged, in order to challenge the credibility of a witness, is a question that has never been ruled upon in this jurisdiction. We find that the trial court erred in sustaining the prosecution’s objection and refusing to admit the alternative tape into evidence.

There is no doubt that sound recordings are admissible if they are otherwise competent, material and relevant and where a proper foundation is laid. (See People v. Gaurige (1988), 168 Ill. App. 3d 855, 522 N.E.2d 1306, citing People v. Melchor (1985), 136 Ill. App. 3d 708, 483 N.E.2d 971; People v. Johnson (1982), 122 Ill. App. 3d 532, 461 N.E.2d 585.) Where a tape accurately portrays the conversation used in evidence, it should be admissible.

In the case of People v. Williams (1985), 109 Ill. 2d 327, 487 N.E.2d 613, our supreme court considered whether a defendant had a constitutional right to have the entire tape played to a jury so the jury would be able to understand the complete context of the tape. This case was remanded to the trial court, based partially on the defendant’s right to have the entire tape played. The court held that failure to allow the defendant to lay a proper foundation for use of the entire tape was cause for a new trial. Moreover, photographic evidence even when altered has been held admissible in court for many purposes. People v. Bunch (1987), 159 Ill. App. 3d 494, 512 N.E.2d 748; People v. Toth (1982), 106 Ill. App. 3d 27, 435 N.E.2d 748.

In this case, the length of the tape was such that playing the two portions closer in time would make it easier for the witness to identify the voice by hearing the two tape segments sequentially. There was no new information contained on the excluded tape that was unknown to the State. Presenting the two segments of the tape closer together in time sequence would be more realistic and make it easier to understand what was said in the two segments. The first segment contained the call to 911 from some phone number, purportedly the Williams phone number, and the second recorded the conversation between the operator and Williams, when she called to verify his phone number and the police were at the door of Williams’ apartment. This would make an easier comparison. The trial court made the error of limiting the defense cross-examination of Godbold. It is possible that this witness would have stated that the two voices were distinctly different and, therefore, the first caller could not have been the second caller. This did not happen, however, so the court did not have the opportunity to see whether or not this witness was in error.

Although we could remand this case for a new trial based upon the aforesaid error of the trial court, defendant’s conviction warrants a reversal based upon the lack of sufficient identification evidence to convict him. Since this case is reversed, we need not address the issue of whether the guns found in defendant’s apartment were improperly admitted as evidence at trial.

Reversed.

RIZZI and GREIMAN, JJ., concur.