author: JUSTICE COOK

text:
      In re MARRIAGE OF TYLER LEE ALEXANDER, Petitioner-Appellee, and FRANCES MARIE ALEXANDER, Respondent-Appellant.
    Fourth District
    No. 4 — 93—0284
    Argued October 19, 1993.
    Opinion filed November 15, 1993.

      Jayne A. Durham, of Land of Lincoln Legal Assistance Foundation, Inc., of Mattoon, for appellant.
    Glenn A. Braden, of Braden Law Office, of Neoga, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

On July 11, 1986, petitioner-appellee Tyler Lee Alexander and respondent-appellant Frances Marie Alexander were married in San Antonio, Texas. The couple had two children: Callie was bom on August 1,1987, and Katy was bom on May 16,1989.

On February 23, 1991, Frances and the two children moved in with Frances’ aunt. Tyler remained in the marital home. In March, Tyler filed a petition for divorce (No. 91 — Cl—03356) in the 45th Judicial District, Texas, through his attorney, Marion S. Dyches. Dyches prepared a draft final decree of divorce which incorporated a marital settlement agreement providing for joint custody with Frances remaining residential custodian. Both parents signed an undated signature page on the draft final decree of divorce. In addition, Frances signed a “Waiver of Citation” (entry of appearance) at Dyches’ office.

On August 16 Tyler and his new attorney, without Frances’ knowledge but with her waiver of citation, appeared in the Texas court and presented a final decree of divorce. This decree, however, awarded Tyler sole custody of the children and most of the marital property. That same day, Tyler’s father helped move Tyler and the girls into the Toledo, Illinois, home of Tyler’s parents.

Frances retained a Texas attorney on August 28, who filed a motion for a new trial; the motion was set for hearing by the court. Subsequently, on September 26, Tyler filed a motion for nonsuit, without disclosing to the court that he now lived in Illinois with his two daughters. The motion was granted that same day.

On September 30, Tyler filed a petition for dissolution of marriage in Illinois and a petition for emergency order of protection. The petition for emergency order of protection was heard that day, without notice to Frances, on an ex parte basis. Tyler testified Frances used inappropriate methods of discipline upon the children, and his testimony was corroborated by Cindy Mills, a mental health therapist who had met with the girls on several occasions. Mills testified that Callie’s abuse of the mother doll during “play therapy,” along with Callie’s expressed fears of her mother and of returning to Texas, convinced her that the children had in fact been abused by their mother and that any visitation rights granted to Frances should be supervised. Based on the evidence presented at this hearing, the Illinois court issued an emergency order of protection which awarded temporary custody to Tyler, and prohibited the children’s removal from Illinois.

Frances filed a petition for dissolution of marriage in the Texas 57th Judicial District on October 2 (No. 91 — C—14740), in which she requested custody of the girls. On October 21, Tyler’s Illinois attorney asked the Illinois trial court to extend the emergency order of protection until Frances had been personally served with summons, and to enjoin her from proceeding further with Texas case No. 91 — C—14740. The court did so and scheduled an appearance date for November 8, 1991. On that date, Tyler’s attorney notified the court that he had been contacted by Frances’ Illinois attorney, furnished by the Land of Lincoln Legal Assistance Foundation, who requested a continuance. On December 23, 1991, because the attorney had not appeared, the Illinois trial court dissolved the marriage on the grounds of mental cruelty and reserved all other issues.

On February 18, 1992, Frances filed in Illinois a motion for leave to file special appearance for the purpose of vacating the ex parte order of protection and dismissing all other petitions filed. She alleged the trial court did not have subject-matter jurisdiction under the Uniform Child Custody Jurisdiction Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 2101 et seq.). The trial court heard the motion on May 4, 1992, and decided that it had personal jurisdiction over Frances due to her pleadings (which included a request for visitation rights) and the subpoena her attorney had issued to Cindy Mills. However, the court agreed with Frances that it did not have subject-matter jurisdiction over the cause before it. Parenthetically, we note, as did Justice Underwood in Siegel v. Siegel (1981), 84 Ill. 2d 212, 221, 417 N.E.2d 1312, 1316, that “jurisdiction” is not used in the Act in its traditional subject matter sense, but in the sense of a limitation upon the existing jurisdiction. Although we have reservations regarding the statutory language, we believe it will be less confusing if we adhere to it.

Tyler then requested the court reconsider its decision, based upon the Act’s emergency provision, section 4(aX3)(ii) of the Act (111. Rev. Stat. 1991, ch. 40, par. 2104(a)(3Xii)). The trial court reconsidered and determined emergency circumstances did exist which allowed it to consider custody. The court then determined, over objection, that it would simultaneously allow Tyler to present evidence on his petition for dissolution of marriage on the issue of permanent custody. Three witnesses testified on Tyler’s behalf. At the subsequent hearing on August 17, 1992, evidence was presented on each party’s behalf. Further testimony was heard on November 6,1992.

On February 11, 1993, the court entered a memorandum of opinion finding it had subject-matter jurisdiction over the two children; the court did not base its finding on the emergency provision of section 4(aX3Xü) of the Act, but upon the fact that the cause had a significant connection with the State of Illinois, and that there existed in Illinois substantial evidence of the children’s present and future care, protection, training and personal relationships. An order was filed on March 2, granting permanent custody of the children to Tyler and allotting Frances three weeks’ visitation per year. This appeal followed.

There are four bases upon which a circuit court may assume jurisdiction for a child custody determination under the Act: the home State, significant connections, emergency, and residual bases. (Ill. Rev. Stat. 1991, ch. 40, par. 2104(a) (see 750 ILCS 35/4(a) (West 1992)).) In this case, the trial court could not assume jurisdiction upon the home State basis because the children had not lived in Illinois for six months prior to the time this action was filed. (Ill. Rev. Stat. 1991, ch. 40, pars. 2103.04, 2104(aXl) (see 750 ILCS 35/3.04, 4(aXl) (West 1992)).) Texas was clearly the home State of these children. Under Federal law, the Parental Kidnapping Prevention Act of 1980 (Pub. L. 96 — 611, 94 Stat. 3573 (Dec. 28, 1980)), the children's home State has exclusive jurisdiction to proceed. See 28 U.S.C. §1738A(cX2XB) (1988).

The trial court did find that an emergency situation existed which allowed it to accept jurisdiction. However, a trial court may not issue a permanent custody order when its jurisdiction is based solely upon the emergency provision. (Gainey v. Gainey (1992), 237 Ill. App. 3d 868, 871, 604 N.E.2d 950, 952.) “This emergency jurisdiction provision is meant solely to prevent irreparable and immediate harm to children, and *** does not confer *** authority to make a permanent custody determination.” (Gainey, 237 Ill. App. 3d at 871, 604 N.E.2d at 952.) The trial court, nevertheless, indicated that the issues of jurisdiction and custody were hopelessly interrelated and ultimately agreed to hear evidence regarding “the entire gambit of the custody issue.” In doing so, the court allowed Tyler to profit by moving this litigation from a cotut where it was pending, and where he might be at a disadvantage, to another court where Frances would have difficulty being present.

A permanent custody order may be issued where jurisdiction is based on any of the Act’s section 4 bases other than the emergency basis (Ill. Rev. Stat. 1991, ch. 40, par. 2104(a)(3)). The “significant connection” provision of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 2104(a)(2) (see 750 ILCS 35/4(a)(2) (West 1992))), section 4(a)(2), affords jurisdiction if:

“2. [I]t is in the best interest of the child that a court of this State assume jurisdiction because
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and
(ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.”

The trial court initially found a significant connection because “the State of Illinois [is] the paternal ancestral home of the minor children.” Historical connections unrelated to the present life of the children do not amount to a “significant connection.” Even if they did, although Tyler’s parents were reared in Illinois, they moved to Texas and resided there for many years, returning to live in Illinois only 2V2 years before this suit was commenced. The trial court further noted that Tyler and his parents and unidentified other relatives reside in Illinois, and that the girls have spent vacations in Illinois and “associated with family and friends in Illinois during their entire lives.” In fact, Tyler moved to Illinois a mere 45 days before he filed suit here. The girls have spent only two vacation periods in Illinois, both during the summer of 1991, when their parents were separated.

“[T]he term ‘substantial evidence’ in the statute was not intended to be used as a substitute for ‘some evidence,’ as may be used in other contexts, but was rather intended to require a high degree of connection and access to evidence.” (In re Marriage of Miche (1985), 131 Ill. App. 3d 1029, 1032, 476 N.E.2d 774, 776-77, citing In re Marriage of Levy (1982), 105 Ill. App. 3d 355, 362, 434 N.E.2d 400, 405.) The Commissioners’ Note to subsection 2 indicates that paragraph two (Ill. Rev. Stat. 1979, ch. 40, par. 2104(a)(2)(ii)) was intended “ ‘to limit jurisdiction rather than to proliferate it’ ” and “ ‘[t]he interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state.’ ” Levy, 105 Ill. App. 3d at 362, 434 N.E.2d at 405, quoting 9 U.L.A. 124 (1979).

Tyler has not established sufficient contacts with the State of Illinois for a court here to accept child custody jurisdiction. Tyler and Frances were married in Texas, and Callie and Katy were born there and spent the first four and two years of their lives, respectively, there. Tyler held a job in Texas for 12 years, and the family resided in a home there for over five years. In addition, the children’s medical records remain in Texas, as do the family’s friends and neighbors, and Frances’ family resides in Texas. Litigation in which both parties had appeared was pending, and had been pending, in Texas. No such nexus of contacts existed in Illinois. Except for the presence of Tyler’s parents in Illinois, Illinois has no more connection with these children than would Idaho or Alaska if Tyler had chosen to move there, and been allowed to remain for a year and a half.

The facts of Miche further support our determination that the contacts with Illinois in this case were not adequate to constitute a “significant connection.” In Miche, two of the three children attended school in Illinois for an entire year, the eldest child was presently enrolled in a special program for the learning disabled, and the father had remarried and his children were part of an extended family which included their stepmother, stepbrother and two stepsisters. (Miche, 131 Ill. App. 3d at 1033, 476 N.E.2d at 777.) However, the children had spent nearly all their lives, and received all of their schooling, in California prior to the divorce, and the mother and youngest child remained in California. The contacts here are even more minimal than in Miche and are not sufficient for jurisdiction.

Even if significant connections were established to vest the court with subject-matter jurisdiction in this case, a circuit court should decline to exercise jurisdiction “[i]f the petitioner for an initial judgment has wrongfully taken the child from another state or has engaged in similar reprehensible conduct.” (Ill. Rev. Stat. 1991, ch. 40, par. 2109(a) (see 750 ILCS 35/9(a) (West 1992)).) Tyler argues that Frances cannot claim he “wrongfully” took the girls from Texas, for when he left Texas he “did so with a valid Texas custody judgment.” It is ironic that Tyler would attempt to rely upon the Texas judgment on the one hand, and seek to nullify it on the other. Even assuming the children were not wrongfully taken from Texas (because of the Texas custody judgment), we have no difficulty classifying Tyler’s actions as “similar reprehensible conduct”: when Tyler substituted a decree awarding him sole custody for the one agreed upon, then nonsuited the Texas case to avoid resolution of the entry of appearance issue, then filed for divorce and custody in Illinois, he engaged in forum shopping and fraud against the Texas court. Tyler argues Frances’ entry of appearance was a general one, not conditioned upon the entry of a specific decree. That issue is one to be decided by the Texas court, however, and it is Tyler who has refused to proceed there. Tyler’s conduct embodies the type of activity section 9(a) of the Act was designed to prevent, and even if an Illinois jurisdictional base existed, the trial court should have declined to proceed further.

Moreover, when a court assumes jurisdiction under the Act, it must then comply with the mandatory interstate notice and consultation provisions, sections 7(b) and 7(c) of the Act:

“(b) *** If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.
(c) *** If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the most appropriate forum.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 40, pars. 2107(b), (c).

Tyler argues that Texas case No. 91 — Cl—03356 had been dismissed, that no cause was pending, and that there was no one with whom the Illinois court could communicate. Under the circumstances the court should have communicated with the Texas court which dismissed case No. 91 — Cl—03356. In any event, Texas case No. 91 — C—14740 was pending, and the Illinois court was required to communicate with the court in which it was filed. Under section 7(c) of the Act, the trial court had a duty, at the very least, to inform the Texas court of its assumption of jurisdiction.

Section 8(a) of the Act contains a forum non conveniens provision which allows a court with subject-matter jurisdiction to decline to exercise its jurisdiction if it finds, under the circumstances, that a court in another State is a more appropriate forum. (Ill. Rev. Stat. 1991, ch. 40, par. 2108(a) (see 750 ILCS 35/8(a) (West 1992)).) The factors a trial court shall consider in determining whether a more convenient forum exists are similar to those it considers in determining whether it has subject-matter jurisdiction: whether another State is or recently was the child’s home State, whether another State has a closer connection with the child and his or her parents, and whether substantial evidence concerning the child’s present or future care, protection, training and personal relationships is more readily available in another State. (Ill. Rev. Stat. 1991, ch. 40, par. 2108(c) (see 750 ILCS 35/8(c) (West 1992)).) Here, those factors weigh heavily in favor of the State of Texas. Even if there was a significant connection with the State of Illinois, the trial court should have declined jurisdiction in favor of Texas. As said in Miche, the facts here constitute “ ‘some evidence’ of a connection with this State, [but] we do not believe they constitute facts sufficient to render Illinois the State with which the family has the closest connection.” Miche, 131 Ill. App. at 1033, 476 N.E.2d at 777.

Tyler argued to the trial court that Frances was abusive to the children and that her relatives in Texas were drug traffickers and sex abusers. We recognize the trial court felt an obligation to intervene and ensure the protection of these children. Competition between courts is fostered, however, when a court where the children happen to be decides it must act, despite the fact that a court in another State is better situated to do so. Whatever protection was necessary for these children could and should have been accomplished on the basis of emergency jurisdiction in Illinois.

Accordingly, we reverse and remand to the trial court, with instructions that Tyler may retain temporary custody of the children pending further order by the Texas court. The trial court should contact the Texas court and schedule a date on which it may order Tyler and the children to appear in Texas. (111. Rev. Stat. 1991, ch. 40, par. 2120.) If the Texas court is unwilling to proceed, the trial court should consider whether it may have residual jurisdiction. In addition, the trial court should consider whether Tyler should be required to pay costs and attorney fees under section 8(g) of the Act (111. Rev. Stat. 1991, ch. 40, par. 2108(g)).

Reversed and remanded.

STEIGMANN, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: JUSTICE BRESLIN

license: Public Domain

text:
    WOODSMOKE RANCH ASSOCIATION, Plaintiff-Appellee, v. HERBERT C. STEINMETZ, JR., Defendant-Appellant (Woodsmoke Resorts, Inc., et al., Defendants).
    Third District
    No. 3-93-0147
    Opinion filed November 5, 1993.
    Thomas H. Fegan and Mindy Kallus, both of Johnson & Bell, Ltd., of Chicago, for appellant.
    Marshall N. Dickler, Thomas W. Goedert, and James A. Slowikowski, all of Marshall N. Dickler, Ltd., of Arlington Heights, for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The defendant, Herbert C. Steinmetz, Jr., filed a motion for sanctions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137) more than 30 days after a dismissal with prejudice but prior to a decision on a pending motion to reconsider. The trial court dismissed the motion as untimely. We reverse.

The record reveals that on July 19, 1991, the plaintiff, Woodsmoke Ranch Association, filed a 12-count complaint against various defendants. Counts I and VIII of the complaint were directed against the instant defendant, Herbert C. Steinmetz, Jr., who subsequently filed a motion to dismiss. On April 16, 1992, the trial court granted the motion to dismiss with prejudice. On May 6, 1992, the plaintiff filed a motion to reconsider. On June 25, 1992, while the motion to reconsider was still pending, the defendant filed a motion for sanctions under Supreme Court Rule 137.

The plaintiff thereafter filed a motion to strike and dismiss the defendant’s motion for sanctions. The plaintiff alleged that under section 2 — 1203 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1203), the defendant’s motion for sanctions was untimely because it had not been brought within 30 days of the dismissal order. The trial court agreed with the plaintiff and granted the motion to strike and dismiss.

On appeal, the defendant argues that the trial court erred in finding that his motion for sanctions was untimely.

Supreme Court Rule 137 provides that a motion seeking sanctions under the rule must be brought within and as part of the civil action in which the pleading or paper referred to has been filed. (134 Ill. 2d R. 137.) We note that prior to the enactment of Supreme Court Rule 137, motions for sanctions were governed by section 2 — 611 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611.) Since section 2 — 611 and Rule 137 are identical for the purposes of this issue, the cases interpreting section 2 — 611 are instructive.

In Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 563 N.E.2d 459, the Dlinois Supreme Court held that the 30-day requirement in section 2 — 1203 does not apply to section 2 — 611 motions. Thus, the trial judge erred here in applying section 2 — 1203 to the sanctions motion.

Moreover, in People ex rel. Bernardi v. City of Highland Park (1992), 225 Ill. App. 3d 477, 588 N.E.2d 427, the court held that a section 2 — 611 motion for sanctions was timely filed so long as the trial court had jurisdiction over the underlying case. The instant defendant filed his motion for sanctions while the plaintiff’s motion for reconsideration was pending. Thus, as in Bernardi, the trial court still retained jurisdiction over the underlying suit. Accordingly, we find that the motion for sanctions was timely filed as part of the civil action. We therefore reverse the trial court’s order and remand this cause for a hearing on the defendant’s motion for sanctions.

Reversed and remanded.

BARRY and STOUDER, JJ., concur.


author: JUSTICE LYTTON

text:
      In re MARRIAGE OF HELEN TALTY, Petitioner-Appellee and Cross-Appellant, and WILLIAM F. TALTY, Respondent-Appellant and Cross-Appellee.
    Third District
    Nos. 3 — 92—0939, 3 — 93—0097 cons.
    Opinion filed November 22, 1993.
    Rehearing denied December 23, 1993.

      White, Marsh, Anderson, Howarter, Brusatte & Vickers, of Ottawa (Robert E. White, of counsel), for appellant.
    Michael H. Massino, Ltd., of Morris (Michael H. Massino, of counsel), for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

This consolidated appeal involves the divorce of petitioner, Helen Talty (Helen), from respondent, William E Talty (William). Helen and William were married in April 1961. William was employed as a construction worker and part-time farmer until 1975, when he and his brother became owners and operators of an automobile dealership known as “Talty Chevrolet, Cadillac, Buick” located in Morris. Thereafter, William worked at the dealership and also continued working as a part-time farmer.

Helen filed a petition for separate maintenance in Grundy County circuit court in April 1983, which was subsequently amended in February 1984 to a petition for dissolution of marriage. For reasons not clear from the record, a trial was not held on the petition until October 1992. The trial court awarded Helen $750,000 in cash and the condominium in which she lived, subject to the mortgage on the property. William appealed this award and Helen filed a cross-appeal. Helen then petitioned for prospective appellate attorney fees, and the trial court granted her $15,000. William also appeals this award, which was consolidated with the earlier appeal. We affirm the trial court on all issues.

William first argues that the trial court erred in denying his motion for substitution of judge pursuant to section 2 — 1001(aX2) of the Code of Civil Procedure (111. Rev. Stat. 1983, ch. 110, par. 2— 1001(aX2)). Helen filed her petition for separate maintenance on April 11, 1983. The judge assigned to the case was Judge Robert Wren. William’s attorney filed his special and limited appearance along with a motion for change of venue requesting a substitution of Judge Wren. This motion was never heard and no order was entered on it.

The trial court entered an order awarding temporary maintenance to Helen on June 17, 1983. This order was signed by Judge Richard Wilder, who had apparently been assigned to the case. No order was entered to reflect this change. On February 24, 1984, Helen was granted leave by the court to modify her separate maintenance petition to a petition for dissolution of marriage.

On August 30, 1984, William again moved for a change of venue pursuant to section 2 — 1001(aX2) (111. Rev. Stat. 1983, ch. 110, par. 2— 1001(aX2)), asking for a substitution of Judge Wilder. Judge Wilder denied this motion and made specific findings on the record as to his lack of prejudice against William.

A litigant’s right to a change of venue is absolute where a petition alleging that the presiding judge is prejudiced is presented before trial or hearing begins, and before the judge that is the subject of the petition has ruled on any substantial issue in the cause. (In re Marriage of Birt (1987), 157 Ill. App. 3d 363, 366, 510 N.E.2d 559, appeal denied (1987), 116 Ill. 2d 556, citing Ill. Rev. Stat. 1985, ch. 110, pars. 2—1001(a)(2), (c).) A change of venue petition based on general allegations of prejudice is untimely if brought after the judge has ruled on a substantial issue. (In re Marriage of Birt, 157 Ill. App. 3d at 366.) The policy behind this rule is to preclude a litigant’s attempt to “judge shop” after forming an opinion that the judge may be unfavorably disposed toward that litigant’s cause. In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 530-31, 463 N.E.2d 719.

William contends that when Helen modified the separate maintenance action to a dissolution of marriage action, he acquired a new unconditional right to a change of venue. Thus, the temporary maintenance order would not be a ruling on a substantial issue.

While it is true that an action for divorce is separate from an action for separate maintenance, “they are for the same cause and the relief requested relates to substantially the same state of facts.” (Sidwell v. Sidwell (1966), 75 Ill. App. 2d 133, 143, 220 N.E.2d 479.) Here, Helen modified her petition; the case retained the same docket number and docket sheet. The June 17, 1983, temporary maintenance order continued without adjustment during the pendency of the litigation. Orders are considered substantial when they are directly related to the merits of the case. (Delta Oil Co. v. Arnold (1978), 66 Ill. App. 3d 375, 380, 384 N.E.2d 25.) We believe that a temporary maintenance order was a ruling on a substantial issue in the cause and allowed William to form an opinion as to Judge Wilder’s disposition in the cause. The trial court properly decided to deny William’s petition for a change of venue.

William next argues that the trial court erred in considering the opinion testimony of Helen’s expert witness, William Evenson, concerning his valuation of the automobile dealership. William contends that Evenson’s reliance on data from a publication by Robert Morris & Associates was improper because it contains a disclaimer that states:

“(1) That the data should be considered only as a general guideline and not as absolute industry norms; (2) the data may not be fully representative of a given industry; (3) the financial statements that are used in compiling the data are not selected by any random or statistically reliable method; (4) some of the industry samples are rather small in a relationship the [sic] total number of firms in a given industry and hence the small sample can increase the chance that some composites do not fully represent the industry; (5) there is a chance that an extreme statement may be present in the data that could result in a disproportionate influence on the industry composite.”

A trial court has broad discretion in determining whether a witness has been qualified to testify as an expert. (In re Marriage of Hunter (1992), 223 Ill. App. 3d 947, 954, 585 N.E.2d 1264, appeal denied (1992), 145 Ill. 2d 634.) A party seeking to have a witness qualified as an expert must lay a proper foundation showing that the expert has some special knowledge or experience in the area about which the expert intends to express his or her opinion. (In re Marriage of Hunter, 223 Ill. App. 3d at 954.) An expert witness’ opinion may not be based on mere conjecture or speculation. (Dyback v. Weber (1986), 114 Ill. 2d 232, 244, 500 N.E.2d 8.) Additionally, if the data upon which the expert relies contains substantial unreliability or inaccuracy, it may be stricken. (Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 114, 463 N.E.2d 792.) However, if the trial court finds that a witness is qualified to testify as an expert, this decision will not be disturbed absent an abuse of discretion. Black v. Iovino (1991), 219 Ill. App. 3d 378, 388, 580 N.E.2d 139.

In this instant case, William’s attack on Evenson’s valuation is centered on the alleged unreliability or inaccuracy of the data utilized by Evenson in the Robert Morris & Associates publication. The Robert Morris publication accumulates financial data provided by American businesses and presents this data in a statistical breakdown according to asset size of the business. The publication has a data sheet devoted exclusively to automobile retailers. Evenson testified that the data that he utilized were accumulated from between 1,500 and 2,000 automobile retailers and that, in his opinion, the data were adequately reliable to be used in his valuation calculations.

We believe that the trial court did not abuse its discretion in allowing Evenson’s testimony; any deficiency in the Robert Morris data goes to the weight of Evenson’s testimony, not to the admissibility. See Illinois State Toll Highway Authority v. Humphrey Estate (1978), 62 Ill. App. 3d 316, 326, 379 N.E.2d 626.

Further, Evenson did not base his opinion exclusively on the Robert Morris data. Both Evenson and Carl Woodward, William’s expert witness, utilized essentially the same method of valuing Talty Chevrolet, the capitalized earnings method. Both opinions used the Talty Chevrolet income tax returns to determine the adjusted gross income of the business, which was divided by a rate of return to determine the value of the asset. The experts’ opinions differed substantially on two figures, the rate of return and the proper figure for management compensation. In light of the evidence presented, we find that the trial court did not abuse its discretion and properly allowed Evenson’s testimony to be admitted.

William also asserts that the trial court duplicatively considered the goodwill of Talty Chevrolet, because, under the statute, future earnings are already considered by the court in fashioning an award of maintenance or distribution of property. Goodwill has been defined as “the ability to [generate] future income.” (In re Marriage of Zells (1991), 143 Ill. 2d 251, 254, 572 N.E.2d 944.) This court has found that the consideration of goodwill in the valuation of a professional business in addition to a party’s ability to generate future income results in an impermissible duplicative valuing of goodwill. (In re Marriage of Courtright (1987), 155 Ill. App. 3d 55, 58-59, 507 N.E.2d 891.) Under the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 101 et seq.), a trial court is required to consider certain factors in apportioning marital assets. The pertinent factors include:

“ ‘[T]he relevant economic circumstances of each spouse when the division of property is to become effective[,] *** [the] occupation, amount and sources of income, vocational skills [and] employability *** of each of the parties *** [and] the reasonable opportunity of each spouse for future acquisition of capital assets and income.’ ” In re Marriage of Zells, 143 Ill. 2d at 255, quoting Ill. Rev. Stat. 1989, ch. 40, pars. 503(d)(4), (d)(7),(d)(10).

In the instant case, the valuation of the dealership included goodwill. During the court’s ruling from the bench, the court made specific comments regarding the enumerated statutory considerations of section 503(d) (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)). Referring to section 503(d)(7), the court stated, “[ojbviously, with Mr. Talty, if things continue as they have, he should have a great income potential as we have all heard.” Under section 503(d)(10), the court stated, “[ajnd, of course, Mr. Talty, if his business continues as it has, will be quite a wealthy man.” It is these statements which William identifies as being duplicative valuations of the dealership’s goodwill.

Illinois courts have uniformly found that goodwill, when applied to a professional business, is not a divisible marital asset. (In re Marriage of Zells (1991), 143 Ill. 2d 251, 572 N.E.2d 944 (lawyer); In re Marriage of Courtright (1987), 155 Ill. App. 3d 55, 507 N.E.2d 891 (doctor); In re Marriage of White (1986), 151 Ill. App. 3d 778, 502 N.E.2d 1084, appeal denied (1987), 114 Ill. 2d 538 (dentist); In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 461 N.E.2d 447 (optometrist).) Goodwill in these situations is not divisible because it is the sole asset of the professional.

In the instant case, a distinction must be made between professional goodwill and the goodwill of a car dealership business. In a professional business situation, goodwill exists solely because professional people have skills that enable them to generate income. It is the skill, expertise and reputation of the individual that maintain the business, not the goods that they sell or the product name that may be printed on them. In an automobile dealership, the goodwill belongs to the business itself. We do not doubt that some of Talty Chevrolet’s customers come to the dealership because of William. Yet a review of the record shows that the dealership is a substantial, autonomous, ongoing business. If William sold his interest in the business, the dealership would continue to function as an independent business entity, not as the handmaiden of William’s expertise in car sales.

Thus, the trial court correctly considered sections 503(d)(7) and (d)(10) of the Act in its valuation of the dealership. The court did not value the business’ goodwill twice. Rather, it fashioned an equitable distribution of the marital assets, properly considering both William’s ability to sustain his standard of living and his ability to acquire future assets through continued association with the dealership. We believe that the concerns of duplicative valuation as addressed in Zells are unique to situations involving professional goodwill. See In re Marriage of Perino (1991), 224 Ill. App. 3d 605, 609, 587 N.E.2d 54.

In passing, we note that a recent case, In re Marriage of Brenner (1992), 235 Ill. App. 3d 840, 601 N.E.2d 1270, relying on Zells, reached a different conclusion. It does not appear that the court in Brenner was presented with arguments that required it to differentiate between the goodwill of a professional corporation and a close corporation. The Brenner court simply assumes the reasoning in Zells applies to both. To this extent, Brenner does not affect our analysis. Zells quite clearly refers to professional businesses and distinguishes them from other businesses. Zells, 143 Ill. 2d at 255-56, quoting In re Marriage of Courtright (1987), 155 Ill. App. 3d 55, 58-59, 507 N.E.2d 891.

William next argues that because Helen did not contribute to the marital assets in the nine years between their separation and the dissolution, the trial court erred in failing to consider William’s efforts in contributing to the marital assets. At the time of the parties’ separation, William had not accumulated any substantial assets. On the contrary, he owed a significant amount of money on two notes executed for the purchase of the dealership.

It is well established that the proper date of valuation of a party’s business for purposes of distribution of marital assets is the date of dissolution. (In re Marriage of Morrical (1991), 216 Ill. App. 3d 643, 645, 576 N.E.2d 465.) A trial court’s distribution of the marital property will not be disturbed on appeal absent an abuse of discretion, that is, when no reasonable person would take the view adopted by the court. (In re Marriage of Agazim (1988), 176 Ill. App. 3d 225, 230, 530 N.E.2d 1110.) The controlling inquiry in apportionment of marital property is whether the distribution is equitable in nature; it is not required to have mathematical equality in the distribution, and just proportions do not mean equal amounts. In re Marriage of Agazim, 176 Ill. App. 3d at 231.

The trial court did not abuse its discretion in the distribution of the marital assets. The court properly valued the business property at the date of dissolution. Although the distribution was not equal, it was equitable. Helen contributed her domestic services and raised three children during the lean years. Now that William’s business is successful, Helen should properly share assets that he has accumulated.

Finally, William argues that the trial court erred in its valuation of certain farming equipment by accepting Helen’s valuation of the equipment at $141,000, the figure shown on his 1990 individual income tax return. The $141,000 is the cost, or basis, of the farm equipment when initially purchased and is not the present value. William asserts that the proper value for the equipment is the depreciated value of the equipment, $5,559.

The trial court never gave a specific value for the farm equipment. In its ruling, it made the following statement:

“Now, as to the assets in this case, there are about 2 million dollars in assets that I have to consider. According to the plaintiff, before taxes it was like $1,988,219 — 1 mean according to the husband. According to the wife the total assets are $2,161,347. So we have got roughly 2 million dollars in assets to consider here.”

It is unclear what value the trial court may have placed on the farm equipment. Because the value of William’s assets used by the court, $2 million, is only $11,781 more than the asset value advanced by William, it is doubtful that the court used the farm equipment value advanced by Helen. William has failed to sustain his burden in showing that the trial court abused its discretion in valuing the farm equipment. See In re Marriage of Morrical (1991), 216 Ill. App. 3d 643, 645, 576 N.E.2d 465.

Helen filed a cross-appeal in this matter contesting the equitable distribution of the marital assets. Because we have already determined that the trial court’s distribution of the marital assets was equitable, we find it unnecessary to address Helen’s cross-appeal.

We turn next to William’s consolidated appeal, No. 3 — 93—0097, challenging a $15,000 award to Helen for prospective attorney fees for defense of the appeal. William relies solely on the case of In re Marriage of Wentink (1984), 132 Ill. App. 3d 71, 476 N.E.2d 1109. In Wentink, a trial court’s order requiring payment of prospective appellate attorney fees to defend the appeal was found to be improper because a cross-appeal was taken by the appellee. (In re Marriage of Wentink, 132 Ill. App. 3d at 81.) The court strictly construed section 508(aX3) of the Act, reasoning that appellate attorney fees may only be awarded for the defense of an appeal, and the appellee’s cross-appeal was an offensive action for which the statute does not allow prospective fees.

In this case, a hearing was held on the petition for prospective fees after the cross-appeal had been filed. The award of attorney fees was specifically designated for the defense of the appeal and not for the cross-appeal. Helen’s lawyer testified concerning the projected time to be spent solely in the preparation of the defense of the appeal. The trial court awarded him the $15,000 as the equivalent of a “retainer fee,” only for the defense of the appeal. Thus, the trial court’s award of appellate attorney fees complied with the requirements of section 508(aX3) of the Act.

The judgment of the circuit court of Grundy County is affirmed.

Affirmed.

BARRY and BRESLIN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT L. DURHAM, Defendant-Appellant.
    Third District
    No. 3 — 92—0386
    Opinion filed November 19, 1993.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LYTTON

delivered the opinion of the court:

Defendant Robert Durham was found guilty of burglary and retail theft following a jury trial in the circuit court of Tazewell County and was given an enhanced sentence of 25 years in the penitentiary. On appeal, he asks that both convictions be reversed or, in the alternative, that the cause be remanded for a new trial or a new sentencing hearing. We reverse the burglary conviction, affirm the retail theft conviction, and remand for a resentencing.

On December 12, 1991, at about 1:30 p.m., defendant, who was black, and another black man entered the front door of Witzig’s, Inc., a department store in Morton, Illinois. Defendant went to the men’s sportswear section where he began to browse through the clothing displayed there while the other man went directly to the men’s suit department.

A few minutes later, a customer, Barbara Stinson, parked behind the store, and as she approached the back door, she saw a black man come out the door carrying several men’s suits across his arm on hangers with the the tags attached. Stinson entered the store, saw a black man looking at clothing, and told a clerk what she had seen in the alley. She was not able to identify defendant as either of the men she had seen in Witzig’s.

When the clerk went to the back door to see if someone in the receiving department was moving merchandise, she saw an older model white car with a dark green top stop in the alley for a short time and then drive away. She was not able to describe the driver. By then defendant had moved into the suit department near the back door, but when the clerk came back into the store, defendant began to go toward the front of the store. The clerk told Harold Witzig, one of the store owners, that some suits had been taken.

Harold Witzig saw defendant exit through the front door of the store, look both ways, and then begin to walk south on Main Street. Gene Witzig, president of the store, followed defendant to the corner of Adams and Main, where both men stopped, and defendant asked him, “What are you doing?” Gene answered, “I believe we’re waiting for the same car.” At that, defendant began to run. Gene’s nephew, Phil Witzig, who had just arrived at the same corner, ran after defendant. During the chase, which covered several blocks, defendant tripped and fell into a shallow creek, but he got up and continued to run into a residential neighborhood. After defendant ran around a house occupied by Marilyn Tiller, Phil caught up with him. Defendant had taken off his belt and was swinging the end with a large buckle at Phil. A short time later the police took defendant into custody.

All of the witnesses who saw defendant in the store and after he left the store testified that he was not carrying anything. However, he was wearing a loose-fitting waist-length denim jacket which could have concealed something. Nonetheless, those who followed defendant saw no bulges under his jacket. When arrested, defendant’s jacket was wet and muddy, and he had no wallet, no cash, no checks, and no credit cards.

The day after the incident, Marilyn Tiller discovered a man’s grey suit in the yard of her house. She described the suit as damp and wrinkled and bearing tags from Witzig’s store. The suit was identified as a size 42 regular, athletic cut, with a price of $325. After defendant left the store, Harold Witzig checked the suit rack and saw an empty section which had contained size 42 regular athletic cut suits priced between $275 to $475. He estimated that as many as 12 suits were missing.

Another witness for the State was a garbage collector who saw an old white LTD automobile with a black top at the corner of Main and Jefferson in Morton between 1:30 and 2 p.m. He said the car had two black male occupants, one driving and one riding in the back seat.

Defendant was charged by indictment with both burglary and retail theft. After he was found guilty by the jury, the court concluded that defendant’s 10 previous felony convictions required imposition of a Class X sentence for the burglary conviction and imposed a 25-year prison term.

First we consider whether the evidence was sufficient to convict defendant of burglary and retail theft. When a defendant challenges the sufficiency of the evidence that resulted in his conviction, the reviewing court will uphold the conviction only if, upon viewing the evidence in a light most favorable to the prosecution, the court finds that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.

The burglary indictment alleged that defendant “knowingly and without authority, entered a building of Witzig’s Inc., with the intent to commit a theft therein.” Section 19 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 19 — 1) defines burglary as follows:

“(a) A person commits a burglary when without authority he knowingly enters or without authority remains within a building ***, or any part thereof, with intent to commit therein a felony or theft.”

By charging defendant with burglary by illegal entry, the State had the burden of proving that defendant entered Witzig’s store without authority and that at the time of entry, he intended to steal. People v. Boose (1985), 139 Ill. App. 3d 471, 473, 487 N.E.2d 1088, 1090.

At common law, burglary was defined as breaking and entering the dwelling of another in the nighttime with the intent to commit a felony. The current statutory definition has eliminated “breaking,” “dwelling” and “nighttime” as elements of the crime. (See Ill. Ann. Stat. ch. 38, par. 19 — 1, Committee Comments, at 569 (Smith-Hurd 1977).) Illinois law is well settled that a building open to the public can be the subject of a burglary. Examples include a laundromat (People v. Weaver (1968), 41 Ill. 2d 434, 243 N.E.2d 245); museum (People v. Schneller (1966), 69 Ill. App. 2d 50, 216 N.E.2d 510); supermarket (People v. Drake (1988), 172 Ill. App. 3d 1026, 527 N.E.2d 519; People v. Stager (1988), 168 Ill. App. 3d 457, 522 N.E.2d 812; People ex rel. McLain v. Housewright (1973), 9 Ill. App. 3d 803, 293 N.E.2d 911); car wash (People v. Blair (1971), 1 Ill. App. 3d 6, 272 N.E.2d 404); and a discount store (People v. Owens (1987), 151 Ill. App. 3d 1043, 504 N.E.2d 186).

As all of the “public building” burglary cases make clear, the statute requires an entry which is both without authority and with intent to commit a felony or theft. In the leading case of People v. Weaver, the court stated:

“A criminal intent formulated after a lawful entry will not satisfy the statute. But authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open. [Citation.] An entry with intent to commit a theft cannot be said to be within the authority granted patrons of a laundromat.” (41 Ill. 2d at 439, 243 N.E.2d at 248.)

In Weaver the defendant had no laundry when he entered the laundromat, but he did have burglary tools and a key that would open the vending machine which was standing open when police arrived. The evidence was held sufficient to establish entry with intent to steal.

Other cases have also found evidence of intent to steal from the fact that the accused carried burglary tools when entering the building while it was open to the public. (People v. Blair, 1 Ill. App. 3d 6, 272 N.E.2d 404; People v. Schneller, 69 Ill. App. 2d 50, 216 N.E.2d 510.) In People v. Drake the defendant entered a grocery store with some stolen checks, one of which he presented to pay for approximately $10 worth of groceries. The check was made out for $310.37. He was convicted of burglary based on his unauthorized entry into the store with the intent to commit a forgery, and the appellate court affirmed. Thus, the fact that the defendant brought the stolen checks with him into the store was sufficient evidence of entry with intent to commit a felony.

In the case before us, defendant carried nothing into the store that would indicate an intent to commit a theft. His conduct in the store, according to the witnesses who saw him, was that of a shopper browsing through various racks and displays of men’s clothing. He did not communicate with the man he entered with, and he did nothing to create a diversion which might distract those in charge while his alleged companion took away the suits. There was no evidence of a scheme or plan to steal formulated prior to entry.

Evidence of intent to commit a felony was held to be insufficient in People v. Boose (1985), 139 Ill. App. 3d 471, 487 N.E.2d 1088, where the defendant entered Marshall Field’s State Street store during the morning while intoxicated. He spent several hours walking around in the store looking at the Christmas sights and patronizing some restaurants. He remained in the store overnight and was found the next morning sleeping in the store wearing a sweater and jacket on which were attached Marshal Field price tags and sensomatic tags. Boose was charged with burglary by illegal entry and was convicted, but his conviction was reversed for failure of the State to prove that he entered the building with the intent to steal. Quoting an early Illinois case, People v. Kelley (1916), 274 Ill. 556, 558, 113 N.E. 926, the court said:

“ ‘There is no evidence as to the intent with which the defendant entered the store, unless it is found in his conduct after entering. *** He may have taken advantage of the opportunity to commit larceny, but his presence in the store is as consistent with his innocence as with his guilt of the criminal intent at the time of his entry.’ ” Boose, 139 Ill. App. 3d at 474, 487 N.E.2d at 1091.

Another case where a burglary conviction was reversed for lack of sufficient evidence of entry with intent to steal is People v. Perruquet (1988), 173 Ill. App. 3d 1054, 527 N.E.2d 1334, where two men entered a used furniture store to purchase an air conditioner. They paid with cash and subsequently were accused of taking $40 from the purse of a store employee during the course of the transaction. In reversing the burglary conviction, the court held that the State failed to prove beyond a reasonable doubt that they had the requisite intent at the time they entered the store.

If defendant did steal the suit found in Tiller’s yard, there was no evidence to show that he was carrying out some previously devised plan rather than taking advantage of an opportunity presented by the circumstances. Therefore, the State’s evidence was insufficient to prove beyond a reasonable doubt that defendant entered the store with the intent to commit a theft. Accordingly, we hold that the burglary conviction must be reversed and his 25-year sentence vacated.

Defendant also contends that the State wrongly prosecuted a retail theft as a burglary since he had authority to enter a retail store open to the general public. He argues that the legislature created the crime of retail theft specifically to cover the crime of shoplifting and did not intend shoplifting to be prosecuted as a burglary. However, since we have reversed the burglary conviction on other grounds, we need not rule on the propriety of the charge itself.

Defendant next asserts that the evidence was insufficient to prove him guilty of retail theft beyond a reasonable doubt. In section 16A — 3 of the Criminal Code of 1961 (111. Rev. Stat. 1991, ch. 38, par. 16A — ■ 3), the offense of retail theft is defined in part as follows:

“A person commits the offense of retail theft when he or she knowingly:
(a) Takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale in a retail mercantile establishment with the intention of retaining such merchandise or with the intention of depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the full retail value of such merchandise.”

The key element of retail theft is the taking possession of merchandise in a retail store with the intention of not paying full value.

Defendant argues that, since he was never seen with any merchandise and did not communicate with the man he entered with, there was no basis for the State’s accusation that he took the suit which was found in Tiller’s yard later.

We believe the jury could have found that defendant committed retail theft by taking the suit that was later found at Tiller’s residence. Defendant’s flight from the store may be a circumstance tending to show consciousness of guilt. (People v. Jimerson (1989), 127 Ill. 2d 12, 45, 535 N.E.2d 889, 904.) Witnesses said that defendant could have concealed a suit inside his jacket. In reviewing the sufficiency of the evidence in a criminal case, whether the evidence is direct or circumstantial, the test is whether, upon viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346.

Looking at the evidence in the light most favorable to the prosecution, the jury could have drawn reasonable inferences of guilt from the fact that defendant wore a loose-fitting jacket capable of concealing stolen apparel, that defendant began to run when he realized Gene Witzig was following him, that a damp and wrinkled suit taken from the store was found in an area where defendant had been, and that defendant was out of Phil Witzig’s sight when he ran around the Tiller home. We therefore hold the jury could have found that the State proved defendant guilty of retail theft beyond a reasonable doubt.

Among the other errors asserted by defendant are several matters in the State’s closing argument, including alleged misstatements of evidence and law, references to other crimes committed by defendant even though defendant did not testify and remarks tending to inflame the jury and pander to prejudice. However, all closing argument errors were waived by defendant’s failure to object at trial or in his post-trial motion. People v. Morgan (1991), 142 Ill. 2d 410, 446, 568 N.E.2d 755, 771.

Defendant claims that each of these alleged errors amounted to plain error and, in the alternative, that the failure to object during closing argument was ineffective assistance of counsel. We have carefully examined the entire closing argument, and we conclude that none of the errors claimed by defendant rise to the level of plain error and that the failure to object was not ineffective assistance of counsel. Furthermore, any prejudice from misstatements about evidence made during argument tends to be cured by the instruction to the jurors that opening and closing arguments are not evidence and that any comment during argument that is not based upon the evidence should be disregarded. People v. Garcia (1992), 231 Ill. App. 3d 460, 472, 596 N.E.2d 1308, 1317.

Two of the prosecutor’s statements deserve mention, however. First, defendant was referred to as a “professional” and the theft as a “professional job,” thus implying that defendant may have committed previous crimes. The trial court had denied defendant’s motion in limine to exclude his prior convictions, and as a result, defendant elected not to testify in his own behalf. Thus, defendant’s prior criminal record was not in evidence, and closing argument statements characterizing defendant as a professional thief were not based on evidence and were not proper.

In seeking a reversal under the plain error rule, defendant relies upon two cases, both of which are distinguishable from the case at bar. In People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629, the prosecutor not only made closing argument statements suggesting that the defendants had previously engaged in illegal conduct but also made a large number of other improper comments, all of which the court took into account in ruling that the cumulative impact of those statements may have prejudiced the jury and thus amounted to reversible error.

In the second case cited by defendant, People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880, the prosecutor repeatedly argued that the defendant was an habitual criminal who had not been caught before because he was too smart. The defendant had no prior record. Although the trial court sustained objections to those comments, the supreme court ruled that these were not inadvertent errors and were severely prejudicial.

Such is not the case here where the prosecution’s improper statements implying that defendant had prior criminal experience, considered in the context of the entire argument, were not so prejudicial or inflammatory as to amount to plain error.

The prosecutor also made references to defendant’s race, stating that the only reason black persons would go to a store in a small white community was because security would be more lax and it would be easier to steal merchandise there. However, that argument was made after defense counsel argued at length that the jury should not “draw an inference based on race” and assume that black individuals going into a store in a white community were acting in concert. The prosecutor’s response was clearly invited by defendant’s argument and was not improper. See People v. Howard (1991), 147 Ill. 2d 103, 149, 588 N.E.2d 1044, 1063.

Defendant also contends that the trial court erred in giving a nonDlinois Pattern Jury Instruction concerning burglary and in imposing an enhanced sentence for the burglary conviction. Since we are reversing the burglary conviction, we need not consider these issues.

For the reasons stated, we affirm defendant’s retail theft conviction, reverse the burglary conviction, and remand for resentencing.

Affirmed in part; reversed in part and remanded.

McCUSKEY, P.J., and STOUDER, J., concur.


author: PRESIDING JUSTICE INGLIS

text:
    BRITAMCO UNDERWRITERS, INC., Plaintiff-Appellee, v. J.O.C. ENTERPRISES, INC., d/b/a Circus Pub, et al., Defendants-Appellants.
    Second District
    No. 2 — 93—0081
    Opinion filed November 19, 1993.

      Richard J. Smith, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellant Andrew M. Abbott.
    James J. Hermann, Jr., of James J. Hermann, P.C., of Waukegan, for appellant J.O.C. Enterprises, Inc.
    Paul S. Festenstein and Francis J. Leyhane, both of Condon & Cook, of Chicago, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court;

This appeal arises from a declaratory judgment action in the circuit court of Lake County. Defendant Andrew M. Abbott (Abbott) filed a complaint against codefendant J.O.C. Enterprises, d/b/a Circus Pub (Circus), alleging liability for injuries inflicted upon Abbott by other patrons of Circus. Plaintiff, Britamco Underwriters, Inc. (Britamco), filed a complaint for declaratory judgment, claiming that because defendant Circus’ policy of insurance did not cover the liabilities alleged in Abbott’s complaint, Britamco had no duty to defend or indemnify Circus. Upon cross-motions for judgment on the pleadings, the trial court granted judgment in favor of Britamco. Abbott appealed, and Circus adopted Abbott’s briefs. For the following reasons, we affirm.

In his complaint against Circus, Abbott alleged that he suffered personal injuries when three patrons of Circus, all minors, became intoxicated and beat him severely. Abbott alleged in count I that Circus had breached a duty not to sell alcoholic beverages to minors by selling to the assailants. Count II alleged breach of a duty to provide a safe environment for patrons by failing to eject the three patrons, whom the proprietor knew or should have known were likely to injure other patrons. Count III alleged breach of a duty to comply with the Dramshop Act (235 ILCS 5/1 — 1 et seq. (West 1992)) by selling alcoholic beverages to the three patrons whereby they became intoxicated.

In its complaint for declaratory judgment Britamco alleged that the company was not obligated to indemnify or defend Circus with regard to Abbott’s complaint. Britamco alleged the policy of insurance issued to Circus by Britamco contained a liquor liability exclusion which precluded any obligation to defend Circus as to counts I and III, and an assault and battery endorsement (the endorsement) which precluded any obligation to defend Circus as to count II.

Abbott moved for judgment on the pleadings, pursuant to section 2 — 615(e) of the Code of Civil Procedure (735 ILCS 5/2 — 615(e) (West 1992)), alleging that the language in the endorsement (1) is vague, confusing, and ambiguous; (2) does not apply to the cause of action in count II of the underlying complaint; and (3) contradicts public policy in Illinois. In response Britamco denied these allegations and cross-moved for judgment on the pleadings. The trial court granted Britamco’s cross-motion. Abbott appealed the trial court’s ruling as to the applicability of the endorsement to count II of the underlying complaint. On appeal Abbott argues the endorsement (1) violates the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1992)); (2) is ambiguous and therefore should be interpreted in favor of coverage; and (3) violates public policy by penalizing the insured for attempting to protect patrons. Abbott additionally raises, in his reply brief, a convoluted, imprecise argument to the effect that this court should give weight to the Illinois Insurance Commission’s interpretation of a similar clause. Issues raised for the first time in the reply brief do not merit consideration on appeal. In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 568; Smith v. Intergovernmental Solid Waste Disposal Association (1992), 239 Ill. App. 3d 123, 127.

Abbott presents the consumer fraud issue for the first time on appeal. Issues raised for the first time on appeal will not be considered by the reviewing court. In re Marriage of Sutton (1990), 136 Ill. 2d 441, 446; Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 303; see also 134 Ill. 2d R. 341(e)(7).

Abbott argues that the following language in the policy is ambiguous:

“ASSAULT & BATTERY ENDORSEMENT
In consideration of the premium charged for the insurance, the policy to which this endorsement is attached, is amended and modified as follows:
Actions and proceedings to recover damages for bodily injury and property damage arising from the following are excluded from coverage, and the Company is under no duty to defend or to indemnify an insured in any action or proceeding alleging such damages:
1. Assault and Battery or any act or omission in connection with the prevention or suppression of such acts;
2. Harmful or offensive contact between or among two or more persons;
3. Apprehension of harmful or offensive contact between or among two or more persons; or
4. Threats by words or deeds. Regardless of degree of culpability or intent and without regard to:
A. Whether the acts are alleged to be by or at the instruction or at the direction of the insured, his officers, employees, agents, or servants; or by any other person lawfully or otherwise, on or near premises owned or occupied by the insured or by any other person;
B. The alleged failure of the insured, or his officers, employees, agents, or servants in the hiring, supervision, retention or control of any person, whether or not an officer, employee, agent or servant of the insured;
C. The alleged failure of the insured or his officers, employees, agents or servants to attempt to prevent, bar or halt any such conduct.
The exclusion applies as well to any claims by any other person, firm or organization, asserting rights derived from, or contingent upon, any person asserting a claim excluded under Clauses A, B, or C (above); specifically excluding from coverage claims for:
1. Emotional distress, or for loss of society, services, consortium and/or income;
2. Reimbursement for expenses (including but not limited to medical expenses, hospital expenses, and wages) paid or incurred by such other person, firm or organization;
3. Any obligation to share damages with or repay someone who must pay damages because of the injury.”

Abbott alleges that “confusion grammar and bad English,” the failure to define key terms, repetition, and the sheer number of words render the passage ambiguous. A document is ambiguous if it is subject to more than one reasonable interpretation. (Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 288.) A document is not ambiguous merely because the parties fail to agree upon its meaning. (First National Bank v. Country Mutual Insurance Co. (1988), 175 Ill. App. 3d 860, 866.) Nor does ambiguity arise from redundancy (Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill. 2d 365, 371) or from prolixity (Chester v. State Farm Mutual Automobile Insurance Co. (1992), 227 Ill. App. 3d 320, 325).

The endorsement in this case is susceptible to only one reasonable interpretation: the policy does not cover claims arising from an assault or battery, regardless of what name is given to the actions comprising the assault and battery. The endorsement is redundant and prolix, but in no way ambiguous. Where provisions in an insurance policy are clear and unambiguous, a court will apply the provisions as written, giving the words of the policy their plain and ordinary meaning. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 5.) A court will not strain to find an ambiguity where none exists. (Schnackenberg, 88 Ill. 2d at 5.) The meaning here is clear. Britamco is not obligated to defend Circus in an action arising out of an incident in the nature of assault or battery.

“If the complaint alleges facts which bring the claim within the potential indemnity coverage of the policy, the insurer is obligated to defend the action.” (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 52.) If the allegations of the underlying complaint reveal no potential indemnity coverage, the insurer has no duty to defend. (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 393.) Count II alleges that Circus breached a duty to provide Abbott a safe environment by not ejecting the three patrons who attacked and beat him. In the terms of the policy, then, Abbott alleges a “failure of the insured *** to prevent, bar or halt *** harmful or offensive contact.”

Illinois case law defines “civil battery” as “the wilful touching of the person of another or a successful attempt to commit violence on the person of another.” (Parrish v. Donahue (1982), 110 Ill. App. 3d 1081, 1083; see also 3 Ill. L. & Prac. Assault & Battery §2 (1953).) In his complaint Abbott alleges that the three patrons “physically attacked [him,] hitting him with their hands and kicking him with their feet on various parts of the body including the head” and that Abbott “was seriously injured.” Thus, the facts alleged in count II constitute harmful or offensive contact, as stated in the endorsement, and civil battery as defined by Illinois law.

Furthermore, according to section 12 — 3(a) of the Criminal Code of 1961 (Code), “A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual ***.” (HI. Rev. Stat. 1991, ch. 38, par. 12 — 3(a) (now 720 ILCS 5/12 — 3(a) (West 1992)).) Also according to section 12 — 4(a) of the Code, “A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.” (111. Rev. Stat. 1991, ch. 38, par. 12 — 4(a) (now 720 ILCS 5/12 — 4(a) (West 1992)).) In this case, it is undisputed that James A. Easterwood was convicted of aggravated battery for his actions as one of the three patrons referred to in the underlying complaint. The underlying incident, then, fits the definition of criminal battery (aggravated), as an intentional causing of great bodily harm to Abbott. Thus, the underlying incident, by all accounts in the nature of a battery, is not within the indemnity coverage of the policy, and therefore Britamco is not obliged to defend the action or indemnify the insured.

Finally, Abbott asserts that the endorsement violates Illinois public policy by penalizing the insured for attempting to protect patrons. According to Abbott, the Premises Liability Act (740 ILCS 130/ 1 (West 1992)) establishes as public policy a duty upon an owner or occupier to exercise reasonable care toward persons entering onto the property. In fact, the Act establishes no public policy at all, but merely abolishes the common-law licensee/invitee distinction. (740 ILCS 130/2 (West 1992).) Also, although Illinois courts have held tavern owners liable for failing to take reasonable action to protect patrons from foreseeable dangers caused by third persons, the cases cited by Abbott establish a duty, not a public policy. See St. Phillips v. O’Donnell (1985), 137 Ill. App. 3d 639; Hayes v. O’Donnell (1979), 76 Ill. App. 3d 695; Lessner v. Hurtt (1977), 55 Ill. App. 3d 195.

Abbott argues that because the policy of insurance does not indemnify for injuries sustained by the insured while attempting to protect patrons from third parties, it punishes the insured for complying with the duty to protect and encourages breach of that duty. Abbott cites no genuine authority for the proposition that this duty constitutes a public policy.

Nor does he cite any authority for the proposition that an insurer under an owner/landlord/tenant policy must insure a tavern owner against all potential liability or even against all the regular incidents of tavern ownership. An insurer has the right to limit coverage on a policy, and where an insurer has done so, a court must give effect to the plain language of the limitation, absent a conflict with the law. (Crosse v. Supreme Lodge Knights & Ladies of Honor (1912), 254 Ill. 80, 84; Dreher v. Aetna Casualty & Surety Co. (1967), 83 Ill. App. 2d 141, 144; see also Allstate Insurance Co. v. Gonzalez-Loya (1992), 226 Ill. App. 3d 446.) The policy in this case incorporates some 26 forms and endorsements on the declaration page. Abbott has not established that any part of the policy violates Illinois law.

The law offers no shelter for an insured who does not read the whole policy of insurance issued to it. “Unless he has been misled by some act of the insurer, it is generally held that a person who accepts and retains possession of an insurance policy is bound to know its contents.” (Capps v. National Union Fire Insurance Co. (1925), 318 Ill. 350, 353; see also Chabraja v. Avis Rent A Car System, Inc. (1989), 192 Ill. App. 3d 1074, 1078-79; Floral Consultants, Ltd. v. Hanover Insurance Co. (1984), 128 Ill. App. 3d 173, 178.) The appellants have not alleged that Circus did not understand the policy or that Británico misled Circus as to the contents of the policy.

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

Affirmed.

McLAREN and DOYLE, JJ., concur.


author: JUSTICE LUND

text:
    JIMMY ROGERS, Plaintiff-Appellant, v. WEST CONSTRUCTION COMPANY, Defendant-Appellee and Third-Party Plaintiff (N.E. Finch Company, Third-Party Defendant).
    Fourth District
    No. 4 — 93—0366
    Argued September 20, 1993.
    Opinion filed October 28, 1993.

      William A. Allison (argued), of Bloomington, for appellant.
    Frederic L. Kenney (argued), of Winters, Prince, Featherstun, Johnson & Gaumer, of Decatur, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff appeals an order of the circuit court of McLean County granting summary judgment in favor of defendant on claims based upon common law negligence and the Structural Work Act (Act) (111. Rev. Stat. 1991, ch. 48, par. 59.90 et seq.). Plaintiff was injured while employed on a construction site. His employer N.E. Finch Company (Finch) was a subcontractor hired by defendant West Construction Company (West). On April 2, 1990, plaintiff was injured on the jobsite while unloading “H-beams” from a flatbed truck.

Plaintiff alleged that West, as general contractor, was under a duty to use due care for plaintiff’s safety. This duty was allegedly breached when defendant (a) failed to provide a safe place for plaintiff to do his work; (b) allowed steel beams to be stacked on the truck in an unsafe fashion, so that when one of the beams was removed, other beams would fall on persons engaged in removing the beams; and (c) caused the beams to be stacked in such a fashion that they were prone to fall and injure plaintiff. The trial court found that West was not in charge of the work at the site where plaintiff was injured and granted summary judgment on both counts of plaintiff’s complaint. We affirm.

Common Law Negligence

To state a cause of action for negligence, one must allege a duty, breach of that duty, and a compensable injury proximately caused by that breach. (Niemann v. Vermilion County Housing Authority (1981), 101 Ill. App. 3d 735, 737, 428 N.E.2d 706, 708.) In order to establish that West owed a duty to Finch’s employees, plaintiff relies upon the concept of “retained control,” based upon section 414 of Restatement (Second) of Torts, which states:

“Negligence in Exercising Control Retained by Employer[.] One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” (Restatement (Second) of Torts §414, at 387 (1965) (hereinafter Restatement).)

Section 414 has been recognized as an expression of law in ffiinois in Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 325, 211 N.E.2d 247, 252-53.

Comment b to section 414 states:

“The rule stated in this Section is usually *** applicable when a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job. In such a situation, the principal contractor is subject to liability if he fails to prevent the subcontractors from doing even the details of the work in a way unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know that the subcontractors’ work is being so done, and has the opportunity to prevent it by exercising the power of control which he has retained in himself.” (Restatement (Second) of Torts §414, Comment b, at 387-88 (1965).)

However, comment c to section 414 states:

“In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” Restatement (Second) of Torts §414, Comment c, at 388 (1965).

West contracted with the State of Illinois (State) to construct three bridges in McLean County. West subcontracted with Finch to perform the pile-driving work. At each of the three bridge sites, West performed excavation work in order to prepare the site for the pile-driving work. Then, according to recognized safety practices within the bridge-building industry, West vacated the site and notified Finch to begin the pile-driving work. West did not provide any equipment, manpower, or supervision to the Finch crew and did not observe or receive any notice of the manner in which the H-beams would be loaded, delivered, or unloaded.

The H-beams were picked up from the fabrication company by a Finch truck and delivered to the work site, where a Finch crew began unloading them with a crane owned and operated by Finch. The beams were stacked in two rows on the flatbed truck, with the beams in the “H” position. The beams on the second row overlapped those underneath. Plaintiff and a co-worker attached “alligator claws” to the ends of each beam, and the crane lifted the beams off the truck. At some point during this unloading process, a beam still on the truck rolled over onto plaintiff’s foot.

Robert Schaeffer, superintendent for West, was in charge of coordinating the work of the subcontractors. He made one or two visits each day to check the progress at the bridge where plaintiff was working. He was there briefly on the morning of the accident, but did not witness the H-beams being unloaded or the accident itself.

The trial court considered the affidavit of Schaeffer in ruling on the motion for summary judgment, which states in part:

“Neither I, nor any employee or officer of West Construction Company exercised any direct, or indirect, control over the work assigned to, performed by or any activities of either Jimmie Rogers or any employees or officers of N.E. Finch and Company.
Over the past five (5) years I can attest that there have been at least fourteen (14) bridge projects which involved nearly identical procedures and arrangements. Once a job is secured then a purchase order is issued to N.E. Finch and Company for their portion of the job. With rare exception, N.E. Finch and Company is the first crew on the site to initiate work. Due to the nature of the work, West Construction Company refrains from having any personnel or employees, as well as any other sub-contractors who may be involved, on the site. N.E. Finch and Company would complete their tasks and vacate the site. They would then serve notice of their completion of their portion, usually by phone, and only then would other workers proceed onto the site.
West Construction Company relied on the [professional] expertise and experiences of N.E. Finch and Company and did not then, nor in the past, ever exercise any control over the manner in which their work was accomplished. N.E. Finch and Company had unrestricted control over their supervisors, employees, materials, equipment and/or apparatus.
*** Prior to, and during, the work activities undertaken by N.E. Finch and Company were conceived, directed and completed with no input or control from an outside source, including West Construction Company. All work done by them and for them by their employees was solely and totally under express control of N.E. Finch and Company and their supervisory personnel concerning all procedures, materials and equipment utility.”

The affidavit above must be compared to Schaeffer’s deposition testimony, where he described how he visited the bridge site once or twice a day just to see what progress Finch was making. When asked if he had any responsibility for the three bridges, he replied that he was in charge of all three of them. He further stated:

“Q. [Plaintiff’s attorney:] So would you have been the safety representative for West on this 165 project?
A. [Schaeffer:] Yes.
Q. If you saw a subcontractor, or any of his employees, doing something contrary to good safety practices, what would you have done?
A. You would stop them right there.
Q. Were there times when you had discussions with them about the way they were doing the work?
A. Yes, about how they were going to proceed, yes.
Q. Can you remember any specifics on that?
A. Well, no. They just tell you what equipment they are going to use and how they were going to set it up and which pile they would drive first and where they would start and finish.
Q. And they look to you to say go ahead on that basis?
A. No, not necessarily. I leave that up to him. He just told me what he planned to do and if it was reasonable, why you let him go.
Q. On the other hand, you retained the right to veto that if you thought it should be?
A. Yes, if I thought it was wrong, yes.
Q. Either the order of the work or the way in which they planned to do it?
A. That’s true.
Q. You retained the right to veto that?
A. Yes.
Q. And that applied to Finch or any other subcontractor?
A. That’s right.”

While the testimony quoted above indicates that Schaeffer retained at least some control over his subcontractors, defendant counters this suggestion with plaintiff’s own testimony: he acknowledged that he took orders only from Finch employees and never saw anyone other than a Finch employee at the jobsite. To the best of his knowledge, no one at West provided any instruction as to the manner in which the H-beams were stacked on the flatbed. Deposition testimony of the Finch foreman, Denny Joe Morsch, leaves no doubt that West had virtually no role in the loading or unloading of the H-beams. When asked if West had any ability to control or direct him or his fellow Finch employees, he replied that it did not. He agreed that, based upon his experience, it was generally true that unloading of steel beams is conducted by the pile-driving subcontractor without supervision from the general contractor. He said this was the customary practice between Finch and West. He attributed plaintiff’s injury to his failure to watch out for the lifted load and keep out of the way.

Another Finch foreman, Doug Wilson, testified at his deposition that West’s only involvement with the pile-driving operation was to tell Finch when and where to start. He found nothing unusual about West’s complete lack of involvement in the unloading of the H-beams. He considered it to be their customary business practice. Morton Simerson, heavy equipment supervisor for Finch, testified that the presence of any West personnel on a jobsite of this nature would provide no benefit whatsoever.

Plaintiff cites Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App. 3d 625, 295 N.E.2d 41, for the principle that a contractor owes an independent contractor whom he employs a nondelegable duty to provide a safe place to work. The Weber case, like our own, was an action premised on both common-law negligence under section 414 of the Restatement and the Act. Plaintiff was an employee of a subcontractor working on a pipeline owned by defendant, Northern Illinois Gas (Northern). Northern maintained a construction inspector at the jobsite to oversee that the job was done properly. He was required to be on the site at all times that work was performed. Northern retained the power to forbid the work being done in a dangerous manner and had exercised this power.

The court concluded that Northern’s supervisor had more power than to make only suggestions or recommendations and retained a right of supervision such that the subcontractor was not entirely free to do the work his own way. (Weber, 10 Ill. App. 3d at 639, 295 N.E.2d at 50.) Furthermore, this supervisor witnessed the subcontractor while he was engaged in unsafe work practices and yet did nothing to stop the activity. The court concluded a jury could find that Northern was in control of the work and reversed the trial court’s order for summary judgment.

We find Weber distinguishable on its facts, which portray a superintendent much more actively involved than was the superintendent hired by West. The superintendent in Weber actively supervised all work done on the project and was present at all times. Furthermore, he witnessed the unsafe procedures, knew they were unsafe, and did nothing. Our review of the facts in this case reveals that pile driving is a highly specialized and dangerous activity requiring the absence of nonessential personnel at the work site. Schaeffer’s responsibility was primarily focused on checking daily progress, not supervising the manner in which the work was done. Accordingly, we find no liability under section 414 of the Restatement.

Plaintiff proposes an entirely different theory for establishing defendant’s duty to Finch, based upon the Illinois Department of Transportation’s Standard Specifications For Road and Bridge Construction (Standard Specifications). Plaintiff makes no attempt to explain the relevance of these Standard Specifications, but it can be presumed they are incorporated into every bridge construction contract issued through the Illinois Department of Transportation (IDOT). The Standard Specifications outline general requirements and covenants applicable to all highway improvements, as well as provisions relating to construction methods, equipment, and material on construction projects awarded by the IDOT. Plaintiff cites article 105.06 of the Standard Specifications, which provides, in pertinent part:

“The Contractor shall give the work the constant attention necessary to facilitate the progress thereof, and shall cooperate with the Engineer, appointed inspectors and other Contractors in every way possible.
The Contractor shall have on the work at all times, as the contractor’s agent, a competent English-speaking superintendent capable of reading and thoroughly understanding the plans and Specifications and thoroughly experienced in the type of work being performed, who shall receive instructions from the Engineer or authorized representatives. The superintendent shall have full authority to execute orders or directions of the Engineer without delay, and to promptly supply such materials, equipment, tools, labor and incidentals as may be required. Such superintendence shall be furnished irrespective of the amount of work sublet.” Standard Specifications, art. 105.06, at 21-22 (1981).

In addition, plaintiff cites article 108.01 of the Standard Specifications, which states that the contractor shall have a representative on the job at all times when either contract or subcontract work is being performed. (However, plaintiff does not cite where this may be found in materials in the record on appeal.) Finally, plaintiff cites article 507.08, which requires that before starting work the contractor shall inform the engineer of the proposed method of erection to be followed and the type equipment to be used. (Standard Specifications, art. 507.08, at 354 (1981).) This proposal is subject to the engineer’s approval, and this approval shall not be considered as relieving the contractor of the responsibility for the safety of the contractor’s method or equipment or from carrying out the work in full.

Plaintiff argues that West’s retention of the authority to stop any work from being performed in an unsafe manner is in line with the dictates of its contract with the State, which warns that a State engineer’s approval of work methods does not relieve the contractor of the responsibility of the safety of the method. Furthermore, the fact that the contract required the presence of a West representative on the jobsite at all times reinforces the idea that defendant’s duty to plaintiff was nondelegable. Merely because West ignored its contractual duty to supervise, plaintiff argues, does not detract from the fact that the duty exists.

We find the numerous and varied regulations contained in the Standard Specifications create a duty owed to the State, not the plaintiff. Government contracts, noted for their overwhelming array of specifications, cannot be read to establish beneficiary rights for nonparties to the agreement.

Structural Work Act

Sections 1 and 9 of the Act provide the basis for plaintiff’s claim under the Act. The relevant parts of those sections follow:

“All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Ill. Rev. Stat. 1991, ch. 48, par. 60.
“Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this Act, shall comply with all the terms thereof * * *.
For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby ***.” Ill. Rev. Stat. 1991, ch. 48, par. 69.

Briefly, to establish a violation under the Act, plaintiff must prove the following: (1) plaintiff’s injury arose from a scaffold, hoist, crane, stay, ladder, support, or other mechanical contrivance which was not erected and/or operated in a safe manner; (2) at the time of his injury, plaintiff was involved in the erection, repairing, alteration, or removal of any building, bridge, or other structure; (3) West was in charge of the work; and (4) West willfully failed to comply with the Act. (Ill. Rev. Stat. 1991, ch. 48, pars. 60, 69.) Failure to produce evidence of one or more of the above elements would be grounds for summary judgment. Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457, 459.

Whether a defendant was in “charge of” work under the Act is primarily a factual question involving numerous factors. (,Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 473 N.E.2d 946.) The supreme court in Simmons recognized a number of factors relevant to this determination: (1) supervision and control of the work; (2) retention of the right to supervise and control the work; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) responsibility for taking safety precautions at the jobsite; (6) authority to issue change orders; (7) right to stop the work; (8) ownership of the equipment at the jobsite; (9) defendant’s familiarity with construction customs, and practices; and (10) whether defendant was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits. Simmons, 104 Ill. 2d at 452, 473 N.E.2d at 949-50; Chance v. City of Collinsville (1983), 112 Ill. App. 3d 6, 11, 445 N.E.2d 39, 42.

First, we must determine whether the occurrence in question falls within the scope of the Act. The purpose of the Act is to provide protection to workers engaged in work activities of a particularly hazardous nature. While the Act is to be liberally construed to effectuate this purpose, it is not intended to cover any and all activities and hazards associated with construction activity. Meyer v. Caterpillar Tractor Co. (1990), 135 Ill. 2d 1, 7-8, 552 N.E.2d 719, 721.

In Meyer, the supreme court delivered a detailed analysis regarding the scope of the Act. In that case, plaintiff was injured while unbanding storage racks which would later be installed in the building. Each rack was 24 feet long by 40 inches deep and was left standing on the long, narrow edge of each bundle of racks. While standing on a curb near a bundle which was being unbanded, plaintiff heard a snap as the racks toppled over on their sides. The falling racks struck plaintiff and he sustained an injury to his knee. Plaintiff argued that a crane or forklift should have been used to support the bundle of racks during the unbanding process.

Initially, the Meyer court found that the Act applies to devices used to support materials as well as workers. Accordingly, the failure to use a forklift or crane in this case would be actionable under the Act. However, the court next addressed whether the procedure of unhanding and unbundling the racks would have been “for the use in the erection, repairing, alteration, removal or painting” of any of the enumerated structures. The court found it was not, stating:

“There are certain hazards present on structural work sites which are not unique to the construction industry. These hazards do not fall within the purview of the Structural Work Act merely by virtue of the fact that they are present on a structural work site. The Act simply does not authorize recovery for injuries from such hazards merely because they occur on a structural work site.
The crane or forklift plaintiff claims should have been used to support the storage racks in the case before us would merely have supported the racks during the unbanding and unbundling process. This is not one of the activities specified in the Act, nor does it involve a hazard peculiar to structural work. Similar devices serve similar functions in a myriad of contexts other than structural work. ***
A different result might well have been warranted here had plaintiff’s injury resulted from the failure of a crane which was lifting the racks into position along the walls of the Caterpillar warehouse. Such activity is clearly within the purview of the Act.” (Meyer, 135 Ill. 2d at 13-15, 552 N.E.2d at 724-25.)

We believe the Meyer decision leaves no doubt that the activity of unloading steel beams with a crane falls under the scope of the Act.

Defendant argues that before liability under the Act may attach, a defendant must be in charge of the particular operation which was a violation of the Act and caused the injury. The Act, defendant argues, is intended to cover those circumstances where the general contractor participates in the subject work or fails to oversee the work when the general contractor should have done so. The supreme court addressed the issue in Larson where the trial court, in its instructions to the jury, equated the term “having charge of” with retention of control and supervision. The supreme court found the instructions misstated the law and held:

“The term ‘having charge of’ is a generic term of broad import, and although it may include supervision and control, it is not confined to it. As was said of the word ‘charge’ in People v. Gould, 345 Ill. 288, 323: ‘The word does not necessarily include custody, control or restraint, and its meaning must be determined by the associations and circumstances surrounding its use. “To have charge of” does not necessarily imply more than to care for or to have the care of.’ Thus, while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge,’ they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute.” Larson, 33 Ill. 2d at 321-22, 211 N.E.2d at 251.

The supreme court discussed the Larson decision in Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 119, 373 N.E.2d 1348, 1351, where the court remarked:

“It is clear from the [.Larson] opinion that neither the exercise of supervision and control nor the retention of the right to do so ‘are essential ingredients for having charge’ (33 Ill. 2d 316, 322) and that the ‘direct connection’ with the work requisite to the imposition of liability may be proved by evidence of inspections or other activities and may also stem from the right to control the work whether or not that right is exercised. (33 Ill. 2d 316, 324.) The term ‘direct connection,’ like the term ‘having charge of,’ is one of common usage and understanding, and whether persons may be held to have a ‘direct connection’ with the work depends upon the circumstances of each case.”

We believe the facts before the trial court establish that the particular nature of pile driving requires that it proceed under the exclusive control of the subcontractor. We view West’s primary purpose as seeing that the project was completed on schedule and according to State specifications. Although West cannot abandon its concern for safety, the scope of this responsibility is not without limitation. As reflected in the Weber decision, if a West superintendent observes unsafe work practices, he or she is responsible for calling a halt to the unsafe activity. However, unlike Weber, where the general contractor was continuously present at the site, West’s role in the pile-driving activity was, at best, peripheral. This is particularly true when applied to the specific activity that allegedly caused plaintiff’s injury. No one has alleged, nor does it seem even remotely probable, that a general contractor would accompany a subcontractor to the fabrication plant to oversee the loading of H-beams. We have no evidence the West superintendent ever was, or even could have been, on notice of a dangerous condition. This is especially true since not one person among those individuals actually on site at the time of the unloading, including plaintiff himself, found any error or negligence in the manner in which the H-beams were stacked.

Although mindful of the supreme court’s broad interpretation of who may be said to be in charge of the work, it would be unreasonable to expect West to have supervised the loading of these beams or stepped in and stopped the activity of unloading them. We need not address the issues of whether there was a willful violation of the Act or whether the crane was operated in an unsafe manner. We hold that West was not in control of the work of unloading these beams.

Affirmed.

STEIGMANN, P.J., and GREEN, J., concur.