author: JUSTICE BRESLIN JUSTICE BARRY,

text:
    WILLIAM FAULKNER et al., Plaintiffs-Appellants, v. WILLIAM GILMORE et al., Defendants-Appellees (United States Fidelity and Guaranty Company, Defendant).
    Third District
    No. 3—92—0720
    Opinion filed July 27, 1993.
    —Rehearing denied September 22, 1993.

      BARRY, J., dissenting.
    Reno, O’Byrne & Kepley, P.C., of Champaign (Michael J. Zopf, of counsel), for appellants.
    Willis R. Tribler, of Tribler & Orpett, P.C., of Chicago (Steven R. Mc-Mannon, of counsel), for appellees.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiffs, William Faulkner, Janice Faulkner, and Kankakee Mechanical Systems, Inc., brought a four-count, third-amended complaint against defendants William Gilmore and Deuschle-Gilmore Insurance Agency, Inc., alleging that the defendants breached a fiduciary duty and a contract to terminate a surety agreement. The trial court dismissed the complaint for failure to state a cause of action. The plaintiffs appeal. We affirm.

Counts I and II of the plaintiffs’ third-amended complaint alleged that the defendants breached a fiduciary duty in failing to provide insurance-related services. Counts III and IV alleged that the defendants breached a contract to terminate a surety agreement for bond indemnification. All four counts of the complaint alleged essentially the same factual scenario. In 1980 or 1981 the plaintiffs initially contacted defendant Gilmore, an insurance broker, to procure a bond indemnification agreement for the plaintiffs. On September 9, 1982, Gilmore procured a bond indemnification agreement for the plaintiffs entitled “Master Surety Agreement.” The agreement was between United States Fidelity and Guaranty Company (USF&G) and seven other individuals or entities, which included the plaintiffs and the plaintiffs’ business associates in the construction industry. The plaintiffs’ business associates who were parties to that agreement included Kankakee Piping Systems, Inc. (Kankakee Piping), MCM Insulation, Mark Webb, and Kathleen Webb. The agreement contained the warning: “CAUTION! READ BEFORE SIGNING.” The plaintiffs signed the agreement. The agreement provided that only the parties could terminate it and then only upon 30 days written notice. It further provided that the parties would not be relieved of liability for any bond executed prior to the expiration of the 30-day notice period.

After executing the agreement, the plaintiffs and the rest of the construction-industry parties to the agreement were involved in various construction projects. At some point, the plaintiffs terminated their business association with those parties. The complaint stated that the plaintiffs told defendant Gilmore on April 13, 1984, that they “had terminated their business association with Kankakee Piping ***, MCM Insulation, Inc., Mark Webb, and Kathleen Webb.” According to the complaint, the plaintiffs then asked Gilmore about the necessary steps to procure future bonding and bond indemnification solely for the plaintiffs. Gilmore immediately contacted USF&G about future bonding and bond indemnification for the plaintiffs. However, he did not terminate or advise the plaintiffs to terminate the previous agreement.

The complaint further alleged that more than 30 days after the parties’ April 13 meeting, Kankakee Piping procured bonds through USF&G pursuant to the “Master Surety Agreement.” The complaint did not specify the particular construction project for which those bonds were issued. Instead, the complaint merely alleged that sometime after the April 13 meeting, Kankakee Piping filed bankruptcy and defaulted on certain contracts which were guaranteed by performance bonds issued by USF&G and indemnified by the plaintiffs. The complaint also alleged that the plaintiffs were compelled to complete the Manteno Hospital contract on which Kankakee Piping had defaulted. The complaint, however, did not allege that the Manteno Hospital contract or any other contract that Kankakee Piping defaulted on was secured by the same bonds that were issued more than 30 days after the April 13 meeting.

The trial court dismissed the complaint for failure to state a cause of action. In so doing, it noted that the complaint was defective because it did not allege that the plaintiffs’ damages were incurred in connection with a default on a bond issued under the agreement more than 30 days after the April 13 meeting. Regarding counts I and II, the court found that the plaintiffs failed to allege facts showing that the defendants had a duty to terminate the original “Master Surety Agreement.” Regarding counts III and IV, the court found that the complaint did not allege facts showing consideration necessary for a valid contract.

On appeal, the plaintiffs first argue that the trial court erred in dismissing their claims relating to an alleged breach of a fiduciary duty. Specifically, they contend that the defendants had a duty to advise them to terminate the “Master Surety Agreement.” In support of their position, the plaintiffs rely on Lake County Grading Co. of Libertyville, Inc. v. Great Lakes Agency, Inc. (1992), 226 Ill. App. 3d 697, 589 N.E.2d 1128, and Economy Fire & Casualty Co. v. Bassett (1988), 170 Ill. App. 3d 765, 525 N.E.2d 539.

In reviewing the propriety of a dismissal for failure to state a cause of action, we must determine whether the complaint, when viewed in the light most favorable to the plaintiff, alleges sufficient facts to establish a cause of action upon which relief can be granted. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365.) A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. (Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 499 N.E.2d 1319.) However, if the complaint does not state a cause of action, that deficiency may not be cured by liberal construction or argument. (Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 527 N.E.2d 303.) The decision of whether to grant a motion to dismiss is within the sound discretion of the trial court. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.

We note that Illinois law places a particular burden on an insurance broker to exercise competence and skill when he renders the service of procuring insurance. (Economy Fire & Casualty Co. v. Bassett (1988), 170 Ill. App. 3d 765, 525 N.E.2d 539.) The relationship of an insurance broker and the proposed insured is a fiduciary one. (Lake County Grading Co. of Libertyville, Inc. v. Great Lakes Agency, Inc. (1992), 226 Ill. App. 3d 697, 589 N.E.2d 1128.) Accordingly, an insurance broker is bound to exercise reasonable skill and diligence in the transaction of the business entrusted to him and will be responsible to his principal for any loss resulting from his failure to do so. (Economy Fire & Casualty Co. v. Bassett (1988), 170 Ill. App. 3d 765, 525 N.E.2d 539; Pittway Corp. v. American Motorists Insurance Co. (1977), 56 Ill. App. 3d 338, 370 N.E.2d 1271.) However, a broker is not liable if he acts in good faith and with reasonable care, skill, and diligence to place the insurance in compliance with his principal’s instructions. (Economy Fire & Casualty Co. v. Bassett (1988), 170 Ill. App. 3d 765, 525 N.E.2d 539.) Moreover, a broker’s employment in each case is that of a special agent for a single objective. (American Environmental, Inc. v. 3-J Co. (1991), 222 Ill. App. 3d 242, 583 N.E.2d 649.) Once the limited purpose of the broker’s agency is accomplished, the broker no longer owes an ongoing fiduciary duty to the ex-principal. American Environmental, Inc. v. 3-J Co. (1991), 222 Ill. App. 3d 242, 583 N.E.2d 649.

In the instant case, we find that the trial court properly found that the plaintiffs’ complaint failed to state a cause of action for a breach of a fiduciary duty. The cases relied on by the plaintiffs are distinguishable. Those cases involve the duties of a broker to procure insurance in a timely manner (see Lake County Grading Co. of Libertyville, Inc. v. Great Lakes Agency, Inc. (1992), 226 Ill. App. 3d 697, 589 N.E.2d 1128) and to procure insurance in accordance with the client’s special circumstances after being informed about the client’s needs (see Economy Fire & Casualty Co. v. Bassett (1988), 170 Ill. App. 3d 765, 525 N.E.2d 539). Here, the plaintiffs’ complaint alleged that the plaintiffs informed the broker that they had already terminated their business relationship with the other entities that were parties to the “Master Surety Agreement.” The complaint did not allege that they requested the broker to take any steps to terminate the business relationship between the plaintiffs and the other parties to the agreement. Rather, the complaint alleged only that they sought future bonding for their company. In that regard, the complaint shows that the defendant broker took immediate action in furtherance of that request. Under these circumstances, we find that the complaint shows that the defendants acted in good faith and with reasonable diligence to obtain insurance in accordance with the plaintiffs’ instructions. Accordingly, we find that the trial court did not abuse its discretion in dismissing counts I and II of the plaintiffs’ complaint.

As an additional matter, we note that the plaintiffs’ complaint is also defective because it fails to allege that the project on which Kankakee Piping defaulted was guaranteed by bonds issued under the “Master Surety Agreement” more than 30 days after the April 13 meeting between the plaintiffs and the defendant broker. Assuming arguendo that the defendants owed the plaintiffs a fiduciary duty to advise them to terminate the agreement, we note that it was undisputed that the defendants would only be liable for a default on bonds issued more than 30 days after notice of termination of the agreement. A careful reading of the plaintiffs’ third-amended complaint clearly shows that the plaintiffs failed to allege that their damages arose from a default on a bond issued after that key date.

The plaintiffs next argue that the trial court erred in dismissing counts III and IV of their complaint, which alleged that the defendants breached a contract.

We disagree. Again we note that the plaintiffs failed to allege a causal connection between their damages and the defendants’ conduct, since they did not allege that Kankakee Piping defaulted on a contract that was guaranteed by a bond issued more than 30 days after the April 13 meeting. Furthermore, we note that to establish a valid contract, there must be an offer, a strictly conforming acceptance of the offer, and supporting consideration. (Martin v. Government Employees Insurance Co. (1990), 206 Ill. App. 3d 1031, 565 N.E.2d 197; McKee v. First National Bank (1991), 220 Ill. App. 3d 976, 581 N.E.2d 340.) In the instant case, the plaintiffs’ complaint merely alleged that the plaintiffs asked the defendants about acquiring future bonding and bond indemnification. We find nothing in the complaint indicating that the defendants agreed to terminate the “Master Surety Agreement” or that they were even asked to do so. Since there was not an offer and acceptance, we find that the trial court properly dismissed counts III and IV of the plaintiffs’ complaint.

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

Affirmed.

STOUDER, J., concurs.

JUSTICE BARRY,

dissenting:

I respectfully dissent.

We are to consider, as a matter of law, whether the trial court was correct in granting the defendant’s motion to dismiss. The proper and controlling standard we must follow on review is the standard rather recently recited by Justice Stamos, “A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. [Citations.] *** All well-pleaded facts in the attacked portions of the complaint are to be taken as true [citation] and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted.” (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657.) In 1991 Justice Clark said, “and all reasonable inferences therefrom [well-pleaded facts] should be construed in plaintiffs’ favor.” (Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 542, 582 N.E.2d 108, 111.) Most recently Justice Bilandic repeated the standard in Dix Mutual Insurance Co. v. LaFramboise (1992), 149 Ill. 2d 314, 318, 597 N.E.2d 622, 624.

I would find that the trial court erred and abused its discretion in granting the motion to dismiss. I find that there were sufficient well-pleaded allegations to withstand the motion even without considering reasonable inferences that may be drawn.

Here the plaintiff filed a 28-page complaint which included allegations that defendant Gilmore as a broker was engaged to procure and did procure a master surety agreement from USF&G for the plaintiffs and their associates. When the relationship between the plaintiffs and their associates ended, the plaintiffs, on April 13, 1984, consulted with defendant Gilmore, notified him that the relationship with the others had terminated and inquired as to what procedural steps were needed to be taken to procure future bonding and bond indemnification solely for the plaintiffs’ company. Two nonparties were in attendance at this most significant meeting, Mr. Larry Mackin and Mr. Denny Rowlette. Dining this meeting, defendant Gilmore contacted USF&G by telephone and inquired about future bonding and bond indemnification for the plaintiffs. Plaintiffs have asserted that as a result of this meeting and the defendants’ affirmative actions the defendants were aware that the plaintiffs would rely upon the defendants to fulfill their fiduciary duties in providing the plaintiffs’ insurance-related needs.

Further, paragraph 22 of the complaint recited that the bonds were procured by defendants for plaintiffs’ former associates more than 30 days subsequent to April 13, 1984. Plaintiffs state that this is contrary to the notice and purpose of the meeting of April 13, 1984, and that the liability of the plaintiffs was the result. Obviously, plaintiffs claim notice to USF&G through defendant broker Gilmore.

At paragraph 18 of the complaint, plaintiffs indicate that they became obligated to finish certain identified construction projects and “that as a result of the aforementioned” suffered financial loss. In the ad damnum, plaintiffs pray for judgment in an amount in excess of $500,000.

Although the posture of this case would suggest that extended discovery has yet to be accomplished, it appears to me that by the plaintiffs’ complaint the defendants have been informed much more than in a general way, by sufficient well-pleaded facts and logical inferences flowing from them to the extent necessary to defeat a motion to dismiss. I would further observe that it does not appear that the trial court was willing to consider any reasonable inferences.

Yet to be determined is whether the defendant broker owed a duty to the plaintiffs given that the case law suggests that a broker is to provide care, skill and diligence under the circumstances presented. Whether proper insurance-related services were provided is the important question to be decided.

As I see it, the trial court’s decision here resulted from the trial court’s failure to infer anything from the allegations of the complaint. As aforesaid, I find that the allegations and reasonable inferences are surficient as a matter of law to state a cause of action for breach of fiduciary duty and breach of contract. In my opinion, the trial court’s failure to draw reasonable inferences to sustain a cause of action at this stage of the pleadings constitutes an abuse of discretion and requires reversal on review.

I would remand this cause with directions to deny the motion to dismiss and allow plaintiffs to proceed with discovery. Obviously, if the facts as developed during discovery fail to sustain the elements of plaintiffs’ cause of action, then a motion for summary judgment may be appropriate. However, at this juncture and tested by the proper standard of review, I do not find that the harsh result of a dismissal is required.


source: Caselaw Access Project

author: JUSTICE LYTTON

license: Public Domain

text:
      In re MARRIAGE OF JO ANN MOORE, Plaintiff-Appellee, and JACK MOORE, Defendant-Appellant.
    Third District
    No. 3—92—0938
    Opinion filed September 21, 1993.

      Brown, McDonald, Conolly & Davis, of Galesburg (Dawn A. Conolly, of counsel), for appellant.
    Barney Olson II, Ltd., of Galesburg (Barney Olson II, of counsel), for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

This is an action for dissolution of marriage in which the defendant, Jack Moore (husband), was given two options under his pension plan. First, he could choose not to elect a survivor’s annuity and receive his full pension benefit; second, he could elect a survivor’s annuity, and his pension would be reduced to fund the annuity. The trial court ordered the husband to choose the second option, and he appeals. We affirm in part, reverse in part, and remand this cause for further proceedings.

The husband is a postal worker who has a vested pension benefit. The parties stipulated to most property issues. Among other things, the stipulation gave the plaintiff, Jo Ann Moore (wife), 50% of the marital portion of the husband’s pension. The remaining 50% of the marital portion and all of the nonmarital portion of the pension belonged to the husband.

When the husband retires, this pension will be divided into two parts. The husband wiU receive the larger share, and the wife the smaller, according to a formula agreed to by the parties. The husband has a choice between two plan options. He can choose the full pension with no annuity for a surviving spouse, or the annuity option, which gives the wife a continuing benefit after the husband’s death, but is paid for by lesser monthly pension payments while he is living.

The husband argues that if he were required to choose the annuity option, his monthly pension would be lowered to pay for the wife’s annuity, and she should compensate him out of her pension payments to compensate for the reduction in his pension. If not, he should be able to control his interest in the marital and nonmarital portion of the annuity.

After a hearing on these issues, the trial court ordered the husband to elect the survivor annuity for the benefit of the wife. The husband received no offset in his pension benefit and received no marital and nonmarital share of the annuity. The effect of the trial judge’s order was to award all of the benefits of the survivor annuity to the wife while requiring most of the financial burden to be borne by the husband.

At the outset of our discussion, it should be noted that the pension plan presented in this case is a governmental pension. If this were a private, qualified plan, it would have been subject to a qualified domestic relations order (QDRO). A QDRO would have eliminated the problems presented by this case because the interests of the spouses are divided actuarially by the plan administrator and treated as the separate property of each spouse. Because of the direct allocation to each party in a QDRO, the death of the employee spouse is not a concern.

In this case, since there is no actuarial adjustment, we must review the order of the trial court requiring the husband to choose the annuity option. A trial court’s decision on the distribution of property will not be reversed unless the court clearly abused its discretion. (In re Marriage of Perino (1992), 224 Ill. App. 3d 605, 608, 587 N.E.2d 54.) “ Tn determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court but rather did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or, in the view of all the circumstances, exceed the bounds of reason and ignore recognized principles of law so that substantial injustice re-suited.’ ” In re Marriage of Murphy (1983), 117 Ill. App. 3d 649, 654, 453 N.E.2d 113, quoting In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126.

The trial judge did not abuse his discretion in ordering the husband to elect a survivor annuity for the benefit of his ex-wife. A survivors benefit is a distinct property interest. (In re Marriage of Lipkin (1991), 208 Ill. App. 3d 214, 219, 566 N.E.2d 972.) The annuity, as part of the pension plan, is a property interest to be distributed in the dissolution proceeding. Even though it is of a contingent nature, a survivor’s benefit has a determinable value, computed by using life-expectancy tables, and it is properly considered a marital asset. (In re Marriage of Lipkin, 208 Ill. App. 3d at 219.) The trial judge acted within the proper range of his discretion to avoid the unnecessary dissipation of this marital asset through either the husband’s refusal to elect this annuity or, alternatively, the husband’s election of the annuity in favor of a person other than his former wife.

However, we conclude that the trial judge erred as a matter of law in ruling that the wife should be the sole beneficiary of the survivor annuity and that no adjustment should be made to the pension amounts received by the parties as a result of the election. Before the trial court may dispose of property in a dissolution of marriage, it must classify the property as either marital or nonmarital. (In re Marriage of Hagshenas (1992), 234 Ill. App. 3d 178, 186, 600 N.E.2d 437.) After classification, each spouse’s nonmarital property is given to that spouse, and the marital property is divided in just proportions. Ill. Rev. Stat. 1991, ch. 40, par. 503(d).

In a typical case, a trial judge might properly order an employed spouse to elect a survivor annuity for the benefit of the nonemployee former spouse, and then compensate the employee spouse through some other aspect of the marital property distribution. In this case, however, the parties had agreed as to the distribution of all property except the survivor annuity. The parties agreed that a portion of the husband’s pension should be considered nonmarital property, and a portion should be considered marital property. The parties also agreed as to the mathematical formula for determining the distribution of the husband’s pension between the parties. Under that formula, as of the date of the hearing below, the husband would receive a pension of $1,143.88 per month if no survivor annuity were elected. By ordering the husband to elect the survivor annuity in favor of his ex-wife, the trial judge effectively reduced the amount of the husband’s monthly pension to $1,044.56. Thus, the husband’s monthly pension payment, which constitutes both nonmarital and marital property, was reduced by the forced election. While the election of the survivor annuity would only benefit the wife (Lipkin, 208 Ill. App. 3d at 219), the husband did not receive any compensation from any other property.

The survivor annuity was the product of the husband’s continued long-term employment with the United States Postal Service which occurred before, during, and after the marriage. By forcing the election of the survivor annuity, and being named the sole beneficiary, the wife not only protected her interests in marital property but, also, received benefits resulting from the husband’s employment prior to and after the marriage. The husband should not suffer the reduction of his monthly pension payment without some proportional compensation or other benefit.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act requires the division of marital property in “just proportions.” (Ill. Rev. Stat. 1991, ch. 40, par. 503(d).) In this case, the parties’ stipulation precluded the trial judge from compensating the husband through some other aspect of the property distribution. Under these circumstances, the wife must bear the financial burden from her share of the pension that is created by the forced election of the survivor annuity.

Since our decision allows the wife to pay the husband for a full interest in the annuity, essentially buying out his interest in it, we do not need to discuss at length the husband’s continued rights in the annuity. We simply note that the trial court could not have deprived the husband of his nonmarital and marital portion of the annuity without compensating him for it.

For the foregoing reasons, the judgment of the circuit court of Knox County is affirmed in part, reversed in part, and remanded for the entry of an order consistent with this decision.

Affirmed in part; reversed in part and remanded.

BARRY and BRESLIN, JJ., concur.


text:
    TRAVELER’S INSURANCE COMPANY, Plaintiff-Appellee, v. GARY A. WEBSTER et al., Defendants-Appellants (Tammy S. Cashmer, Defendant-Appellee).
    Third District
    Nos. 3—92—0706, 3—92—0730 cons.
    Opinion filed September 21, 1993.
    George G. Leynaud, of Leynaud & Leynaud, of Peru, and McKeown, Fitzgerald, Zollner, Buck, Hutchison & Ruttle, of Joliet (Gary S. Mueller, of counsel), for appellant Gary A. Webster.

      Herbolsheimer, Lannon, Henson, Duncan & Reagan, RC., of Ottawa (Michael T. Reagan, of counsel), for appellant Economy Fire & Casualty Company.
    Johnson, Martin, Russell, English, Scoma & Beneke, of Princeton (Daniel K. Russell, of counsel), for appellee Traveler’s Insurance Company.
    Peter F. Ferracuti & Associates, of Ottawa (James R. Lindig, of counsel), for appellee Tammy S. Cashmer.
   JUSTICE LYTTON

delivered the opinion of the court:

In this case, Gary Webster and Tammy Cashmer were injured in a motorcycle accident. Each claimed that the other was driving. An action for declaratory judgment was filed to determine the rights and obligations of Webster, Cashmer and their insurance companies. After the trial judge found that Webster was the driver, this appeal was filed. We affirm.

Gary Webster and Tammy Cashmer were involved in a one-motorcycle accident on June 12, 1987. Both Webster and Cashmer were injured, and there were no other witnesses to the accident. Webster was insured by the Traveler’s Insurance Company (Travelers), and Cashmer was insured by Economy Fire & Casualty Company (Economy). Webster’s insurance policy did not afford liability coverage for his motorcycle. Cashmer’s policy excluded liability coverage for the operation of motorcycles.

Cashmer filed suit for personal injury against Webster, alleging that Webster was the driver of the motorcycle at the time of the accident. Webster counterclaimed for his injuries, alleging that Cashmer was the driver. Additionally, Webster made an uninsured motorist claim against his insurance company, Travelers, asserting that Cashmer was the driver of the motorcycle. Cashmer made an uninsured motorist claim against her insurance company, Economy, asserting that Webster was the driver.

Travelers then filed a complaint for declaratory judgment. Economy answered and counterclaimed for declaratory judgment. The judge presiding over the declaratory judgment entered an order staying other proceedings between the parties. This order stated that the identity of the operator of the motorcycle would be determined in the declaratory judgment case and would bind the parties in the other legal proceedings.

A bench trial on the declaratory judgment action was held in the circuit court of La Salle County. The trial judge found that Webster was the driver of the motorcycle. Both Webster and Economy filed notices of appeal.

The primary issue before this court is whether the evidence is sufficient to support the trial court’s finding that Gary Webster was the driver at the time of the accident. In a bench trial, it is the function of the trial judge to weigh the evidence and make findings of fact. Where the evidence is close, and the findings of fact must be determined from the credibility of witnesses, the court of review will defer to the trial court’s factual findings unless they are against the manifest weight of the evidence. The court of review must not substitute its judgment for that of the trier of fact. Kalata v. Anheuser-Busch Cos. (1991), 144 Ill. 2d 425, 433-34, 581 N.E.2d 656.

At the hearing below, Webster and Economy introduced evidence in support of their claim that Tammy Cashmer was the driver at the time of the accident. Webster testified that Cashmer was driving. Another witness, David Andree, testified that, shortly before the time of the accident, he saw two people on the same road where the WebsterCashmer motorcycle subsequently had its accident. Andree testified that he remembered seeing a “big guy” on the back of the motorcycle. Andree also stated that the driver’s hair was long and black, and the driver appeared to be a female. He opined that Webster must have been the passenger on the back of the motorcycle. However, Andree did not know Webster or Cashmer and did not know whether the motorcycle he passed was the one in the accident.

A hospital emergency record, prepared by a hospital employee on June 13, 1987, stated that Cashmer could not remember what happened. One month later, Jean Kassady, an employee of Economy, took a statement from Cashmer. According to the statement, when Kassady asked Cashmer if she could describe what happened, Cashmer replied, “I would if I could. I don’t know.”

The trial court also heard evidence that Webster was the driver. Cashmer’s father and boyfriend saw Webster driving Cashmer on the motorcycle as they left a tavern shortly before the accident. Webster was conscious at the scene of the accident and at the hospital emergency room. Dr. Caner Celeboglu took a history from Webster while he was awake, alert and verbally coherent. Webster told Dr. Celeboglu that he was in a motorcycle accident, he did not hit anything, he was thrown into a ditch, and he had a passenger.

Webster also saw Dr. A.K. Roy at the hospital. Webster told Dr. Roy he was involved in a motorcycle accident in which he was driving.

Another history and physical report was prepared by Dr. James E. Gottemoler. According to Dr. Gottemoler’s report,

“he [Webster] swerved to avoid a box that was in the road: he hit some gravel: he lost control of the motorcycle and was thrown to the ground and into the ditch.”

Webster attempted to explain these statements. He testified that he did not remember making statements to Dr. Celeboglu, but Webster also said that he wanted everybody to believe that he was driving so that he would not get in trouble for letting Cashmer drive. Webster explained that Cashmer did not have a motorcycle license and he feared that he would get a ticket for letting her drive. Webster did not even tell his wife that Cashmer had been driving, because he believed that his wife would be angrier if she knew that Webster had let a woman drive the motorcycle. According to Webster, it was only after he spoke to his lawyer that he began to tell the truth, i.e., that Cashmer was the driver.

Thus, the decision of the trial judge rested upon determinations regarding conflicting testimony and the credibility of witnesses. Under the circumstances presented, this court will defer to the findings of the trial judge who heard the testimony and observed the witnesses. Family Tailored Homes, Inc. v. Manfield (1992), 233 Ill. App. 3d 477, 480, 599 N.E.2d 198.

Here, the appellants raise three ancillary issues. First, appellants argue that such deference to the trier of fact is inappropriate in this case. Drs. Celeboglu, Gottemoler and Roy did not testify before the trial court; only their depositions were offered into evidence. Appellants argue that there are no credibility conclusions that can be drawn by the trier of fact and, accordingly, this court is as justified as the trial court in drawing conclusions from those depositions.

While the doctors did not testify before the trial judge, neither did they appear before this court. It is true that we are in the same position as the trial court to make credibility and weight findings as to the disposition testimony alone. However, because the weight to be afforded to the doctors’ testimony was closely interrelated with Webster’s testimony, the trial judge remained in the best posture to evaluate the credibility and weight of the witnesses’ testimony. See Lubin v. Goldblatt Brothers, Inc. (1962), 37 Ill. App. 2d 437, 444, 186 N.E.2d 64.

Second, the appellants argue that Cashmer’s testimony was entitled to little, if any, weight. They contend that Cashmer’s testimony was impeached in two ways: (a) through inconsistent statements made prior to the commencement of trial, and (b) by inconsistencies in her testimony at trial. After reviewing the record, we conclude that these inconsistencies do not require a reversal of the trial court’s judgment. The alleged flaws in Cashmer’s testimony were presented to the trier of fact. Nonetheless, the judge chose to believe Cashmer’s claim that she was not driving at the time of the accident. We will not second-guess this determination. As the fact finder, the judge was not required to believe the testimony of Gary Webster. (Pientka v. Board of Fire Commissioners (1984), 125 Ill. App. 3d 124, 132, 465 N.E.2d 677.) Moreover, Webster’s own claim of credibility was dependent upon his assertion that he initially made false statements regarding the identity of the driver and then changed his story after speaking to an attorney.

Third appellants contend that the trial judge failed to apply the appropriate burden of proof. They argue that the judge was confused by the “truism” that one of the two parties was the driver of the motorcycle. Appellants assert that even if Gary Webster failed to prove that he was not the operator of the motorcycle, this does not necessarily mean that Tammy Cashmer met her burden of proof.

Appellants are correct in their assertion that Cashmer was required to meet her burden of proof. Cashmer was not a plaintiff in this declaratory judgment action. Nonetheless, the trial judge’s stay order provided that the determination of the driver’s identity would be binding in other legal proceedings, including Cashmer’s personal injury suit against Webster. Thus, in her appellate brief filed in this case, Cashmer conceded that she had the burden of proving that Webster was the driver of the motorcycle at the time of the accident. See Tepper v. County of Lake (1992), 233 Ill. App. 3d 80, 82, 598 N.E.2d 361.

The burden of proof in this case is the “preponderance of the evidence” standard, that is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it.” (Board of Education v. Johnson (1991), 211 Ill. App. 3d 359, 364, 570 N.E.2d 382.)

“By a preponderance of the evidence it is meant the greater weight of the evidence, not necessarily in numbers of witnesses, but in merit and worth that which has more evidence for it than against it is said to be proven by a preponderance. Preponderance of the evidence is sufficient if it inclines an impartial and reasonable mind to one side rather than the other.” (Moss-American, Inc. v. Fair Employment Practices Comm’n (1974), 22 Ill. App. 3d 248, 259, 317 N.E.2d 343.)

The “preponderance of the evidence” is that “which as a whole shows that the fact sought to be proved is more probable than not.” Blacks Law Dictionary 1064 (5th ed. 1979).

In his order, the trial judge stated:

“This court further finds that it is more probably true than not that Defendant, Gary Webster, was in fact the driver or operator of the motorcycle at the time of the accident on June 12, 1987, which is the subject matter of this litigation.”

The judge understood and applied the correct standard and found that Tammy Cashmer met her burden of proof.

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

Affirmed.

BARRY and SLATER, JJ., concur.


text:
    RONALD M. MALOOLEY et al., Plaintiffs and Counterdefendants-Appellants and Cross-Appellees, v. LUELLA L. ALICE et al., Defendants and Counterplaintiffs-Appellees and Cross-Appellants.
    Third District
    No. 3—92—0946
    Opinion filed September 23, 1993.

      John A. Balestri, of La Salle, for appellants.
    Richard W. Zuckerman, of Peoria, for appellees.
   JUSTICE LYTTON

delivered the opinion of the court:

Plaintiffs, counterdefendants Ronald M. Malooley and his wife, Dorothy A. Malooley (Malooley), appeal from a judgment entered against them following a three-day bench trial held in Putnam County circuit court. The Malooleys filed suit against defendants to forfeit a land contract and outstanding rent owed. Defendants, counterplaintiffs Luella L. Alice and her son Carl S. Alice (Alice) cross-appeal from the same judgment. The Alices counterclaimed for damages suffered as a result of Ronald Malooley’s alleged misrepresentation of the condition of the property at issue. We affirm on all issues.

Ron Malooley is a licensed real estate broker who owns and operates Malooley Realty in Spring Valley. The Malooleys owned a six-acre parcel on which was situated a home, pole building and small bam. In 1979, the Malooleys sold the property on contract to Michael and Jane Cusack (Cusack). During the Cusacks’ possession of the property, they experienced several problems with the home and informed Malooley.

Specifically, Cusack informed Malooley that the roof leaked in the sunroom, around the chimney and over the stairway going upstairs. Cusack also told Malooley that the soil pipe was rotten. Cusack replaced the roof over the sunroom and patched and tarred the roof around the chimney several times. Cusack also patched the soil pipe several times.

In 1987, Cusack began to experience financial difficulty, and in September, decided to give the property back to Maiooley. After Cu-sack vacated the property, Maiooley hired a contractor, William Nickel (Nickel), to make repairs to the home. Nickel made repairs to the roof over the sunroom, the stairs, a porch on the north side of the house, and around the chimney. After making these repairs, Nickel tested his work by running water over the repaired areas; he also observed the repaired areas after a rain storm. Nickel examined the electrical system and the plumbing and believed that they were adequate. Maiooley placed the property back on the market and listed it with Maiooley Realty.

In November 1987, the Alices were shown the property by Royce Mignone (Mignone), an agent of Maiooley Realty. The utilities were not on at the time of the showing. The Alices told Mignone that they did not have that much money and that they were looking for a property that did not require a great deal of maintenance. When Mignone showed the Alices the property, they expressed concerns about the condition of the home, specifically regarding water spots on the ceiling. Mignone suggested that they talk to Ronald Maiooley.

The Alices subsequently discussed the purchase of the property with Maiooley. The Alices told Maiooley that they were looking for a property that was relatively maintenance-free, and asked if there was anything wrong with the property. Maiooley told the Alices that other than a small leak in the roof of the sunroom, there was nothing wrong with the property.

On November 12, 1987, the Alices entered into a written agreement for the purchase of the property by way of a land contract. The Alices took possession of the property in January 1988.

Almost immediately after taking possession, the soil pipe in the basement broke. Maiooley hired Nickel to repair the pipe. Shortly thereafter, the Alices experienced trouble with an electrical switch in the living room. They called an electrician who replaced the switch. Upon further inspection of the electrical system, the electrician believed that the wiring in the house needed to be updated or replaced.

The Alices also experienced trouble with the hot water heater shortly after moving into the property. Maiooley replaced the hot water heater at his own expense. Another problem arose when the walls around the upstairs bathtub collapsed while Carl Alice was taking a bath.

In early March 1988, the Alices began to experience problems with the roof leaking in the family room, in the sunroom, in the stairwell and around the chimney. Carl Alice attempted to repair these leaks using roofing tar. During this period the Alices also observed water leaking into the basement through the blocks of the foundation. The Alices filed a claim with their insurance company in April 1988 and were given a check for $343.15 to repair the damage caused by the leaking.

The Alices thought that they had resolved the leaking problems until a severe storm occurred in May 1988. The storm blew some shingles off of the sunroom, and the roof again leaked in the family room, the sunroom, in the stairwell and around the chimney. The stairwell wall leading upstairs buckled and collapsed. The Alices filed another claim with their insurance company and received a check in the amount of $999.40 to repair the damage caused by the storm. The Alices got estimates from professional roofers to repair the roof, but were unable to afford to have the work done, given the amount of the insurance check. Carl used the insurance money to buy materials and attempted the repairs himself.

In the summer of 1988, the Alices experienced problems with the central air conditioning of the house. A repairman was called, and two visits were necessary before the air conditioning was repaired. While Carl Alice was with the repairman checking the air conditioner, the cold air duct fell down and could not be put back up. The repairman told Carl that all of the duct work needed to be replaced.

After each of the above-described occurrences, the Alices informed Ron Malooley of their problems. Eventually Malooley responded by saying that he did not sell the house to become a caretaker of it. In January 1989, the Alices told Malooley that they would not continue to pay on the contract until Malooley repaired the house. In February 1989, Malooley responded by having an eviction notice served on the Alices. The Alices refused to vacate the property or to pay on the contract. Malooley filed a forcible entry and detainer complaint that included a claim for rent. The Alices filed a three-count countercomplaint against the Malooleys based on claimed violations of the Dwelling Unit Installment Contract Act (Ill. Rev. Stat. 1989, ch. 29, par. 8 — 21), common law fraud, and the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 121V2, par. 261) (Consumer Fraud Act).

The Putnam County circuit court granted Malooley a judgment for forcible entry and detainer on September 26, 1989, and Malooley regained possession of the property on November 2, 1989. A three-day bench trial was held on the Alices’ countercomplaint and on the Malooleys’ claim for rent. The trial court entered judgment in favor of the Malooleys as to the first two counts of the Alices’ complaint, but found that Ron Malooley had violated the Consumer Fraud Act. The Malooleys’ claim for rent was denied. The court did not address the Alices’ punitive damage claim.

The Malooleys contend that the trial court erred in finding that Ron Malooley violated the Consumer Fraud Act. The Consumer Fraud Act has been liberally interpreted by the courts of this State to give effect to the legislative goals behind the enactment. (Eshaghi v. Hanley Dawson Cadillac Co. (1991), 214 Ill. App. 3d 995, 1001, 574 N.E.2d 760.) These legislative goals are recognized as a policy to give a consumer broader protection than common law fraud or negligent misrepresentation by prohibiting any “ ‘deception, fraud, false pretense *** misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon concealment *** in the conduct of any trade or commerce.’ ” Eshaghi, 214 Ill. App. 3d at 1001-02, quoting Ill. Rev. Stat. 1987, ch. 121V2, par. 262.

The elements necessary to sustain a cause of action under the Consumer Fraud Act are:

“(1) a statement by the seller; (2) of an existing or future material fact; (3) that was untrue, without regard to defendant’s knowledge or lack thereof of such untruth; (4) made for the purpose of inducing reliance; (5) on which the victim relies; and (6) which resulted in damages to the victim.” (Roche v. Fireside Chrysler-Plymouth, Mazda, Inc. (1992), 235 Ill. App. 3d 70, 84-85, 600 N.E.2d 1218.)

The Consumer Fraud Act does not require actual reliance on the part of the victim. (Siegel v. Levy Organization Development Co. (1992), 153 Ill. 2d 534, 542, 607 N.E.2d 194.) Whether a party has adequately proved the elements of statutory fraud is a question of fact, and a reviewing court will not disturb a trial court’s finding unless it is against the manifest weight of the evidence. Black v. Iovino (1992), 219 Ill. App. 3d 378, 389, 580 N.E.2d 139.

The Malooleys’ arguments regarding this issue are grounded on the proposition of law that the Alices must establish the elements of the Consumer Fraud Act by clear and convincing evidence and that the Alices failed to sustain their burden. The Malooleys rely upon Munjal v. Baird & Warner, Inc. (1985), 138 Ill. App. 3d 172, 183, 485 N.E.2d 855, and General Motors Acceptance Corp. v. Grissom (1986), 150 Ill. App. 3d 62, 65, 501 N.E.2d 764, appeal denied (1987), 114 Ill. 2d 545, to support their argument that the clear and convincing standard of proof is applicable to the Consumer Fraud Act.

The Alices argue that the proper standard of proof under the Consumer Fraud Act is a preponderance of the evidence, citing In re Tapper (N.D. Ill. 1991), 123 Bankr. 594.

This court was faced with this issue in Hoke v. Beck (1992), 224 Ill. App. 3d 674, 679-80, 587 N.E.2d 4, but declined to resolve it. As we stated above, it is generally recognized that the Consumer Fraud Act should be liberally construed to effect its purposes. (Eshaghi, 214 Ill. App. 3d at 1001-02.) This purpose is to eradicate “ ‘all forms of deceptive and unfair business practices and to grant appropriate remedies to defrauded consumers.’ ” (Warren v. LeMay (1986), 142 Ill. App. 3d 550, 563, 491 N.E.2d 464, quoting American Buyers Club v. Honecker (1977), 46 Ill. App. 3d 252, 257, 361 N.E.2d 1370.) A cause of action under the Consumer Fraud Act is easier to establish than a common law action of fraud or negligent misrepresentation. (Eshaghi, 214 Ill. App. 3d at 1001-02.) Therefore, we hold that it is entirely consistent with the legislative intent behind the Consumer Fraud Act to establish the standard of proof as a preponderance of the evidence. (See In re Tapper, 123 Bankr. at 602.) Under this standard, we hold that the Alices have sustained their burden.

Ronald Malooley is a real estate broker licensed under the Real Estate License Act of 1983 (Ill. Rev. Stat. 1989, ch. 111, par. 5801 et seq.). Brokers occupy a position of trust with respect to purchasers; they owe a duty to exercise good faith in their dealings with purchasers and have a duty to disclose material facts. (Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 162, 510 N.E.2d 409, appeal denied (1987), 116 Ill. 2d 578.) Thus, a broker’s silence may constitute fraudulent concealment of material facts. Zimmerman, 156 Ill. App. 3d at 162.

The trial court specifically found that Ronald Malooley’s statements to the Alices regarding the condition of the house induced the Alices to the purchase of the property. Malooley’s statements were in regard to a material fact: the condition of the house. The Alices informed Mignone and Malooley that they were looking for a “maintenance free” property. In light of the testimony offered by the former owner of the property, Cusack, Malooley was aware of the deficiencies of the property.

The trial court found that Ron Malooley intended to create a reliance in the Alices. While this issue was fairly close and required extensive review of the record, we will not second-guess the trier of fact, who was able to observe the witnesses’ testimony and form opinions as to their credibility. The trial court’s decision is affirmed.

We turn to the Malooleys’ next issue on appeal, whether the trial court erred in refusing to award the Malooleys rent for the period of time that the Alices occupied the property without paying on the land contract. The trial court’s order stated, in relevant part, as follows:

“[T]he Court will enter judgment in favor of the Plaintiff for $2,000 being the return of their purchase price, together with all payments made, which by the Court’s notes are $3,900 (13 x $300), and as a further sanction under the Act, the Court, since the property was rendered virtually uninhabitable, would bar the Plaintiff Malooley’s [sic] claim for rent.” (Emphasis added.)

The Malooleys argue on appeal that they were entitled to the rent pursuant to section 9 — 201 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 201). While it is true that section 9 — 201 provides for recovery of rent “after termination by forfeiture where the vendee wrongfully refuses to give up possession of land,” the issue is whether the trial court had the authority to assess sanctions under the Consumer Fraud Act.

Under section 10a(a) of the Consumer Fraud Act, “[t]he court, in its discretion may award actual damages or any other relief which the court deems proper.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 1211/2, par. 270a(a).) From the face of section 10a(a), it appears that the trial court’s sanction was within the discretion of the trial court. In fact, section 10a(a) has been upheld by this court to support an award of punitive damages. (Black, 219 Ill. App. 3d at 393.) In light of the trial court’s finding that the property was virtually uninhabitable during the period for which the Malooleys are claiming rent, the trial court did not abuse its discretion in denying their claim as an additional sanction under the Act. The trial court’s decision is affirmed.

We now turn to the Alices’ claim on cross-appeal, that the trial court erred in refusing to award the Alices punitive damages. Generally, if a plaintiff can demonstrate gross deception or willful and wanton misconduct, the determination as to whether the plaintiff is entitled to exemplary damages lies with the trier of fact. (Siegel, 153 Ill. 2d at 547.) The initial determination of whether the facts and circumstances justify the imposition of punitive damages is a question of law. Black, 219 Ill. App. 3d at 393.

This court finds that the trial court did not err in refusing to award the Alices punitive damages. Punitive damages are penal in nature and are not intended to act as a windfall for the party to whom the punitive damages are awarded. (Black, 219 Ill. App. 3d at 393.) There is nothing in the record to indicate gross deception or willful or wanton conduct by the Malooleys in this case.

The trial court’s decision is affirmed on all issues.

Affirmed.

BRESLIN and SLATER, JJ., concur.


author: JUSTICE SLATER

text:
      In re MARRIAGE OF MARSHA S. TAYLOR, n/k/a Marsha S. Lindstrom, Petitioner-Appellee, and JAMES E. TAYLOR, Respondent-Appellant.
    Third District
    No. 3-93-0062
    Opinion filed September 24, 1993.

      Joseph M. Gibson, of Peoria, for appellant.
    John P. Edmonds, of Law Offices of John P. Edmonds, Ltd., of Chillicothe, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Respondent, James Taylor, appeals from an order of the circuit court granting a petition for leave to remove the parties’ minor child from the State of Illinois filed by petitioner, Marsha Taylor (now Lindstrom). We affirm.

The parties were divorced in 1986. Custody of the parties’ only child, Derek, was awarded to petitioner. Respondent was granted extensive visitation including four weeks during the summer, every other weekend, one night each week and every other holiday. Petitioner subsequently remarried, and on June 23, 1992, she filed a petition for leave to remove the minor child from the state of Illinois. At the time the petition was filed Derek was 10 years old.

A hearing on the petition for removal was held on July 9, 1992. Petitioner’s husband, William Lindstrom, testified that he had been employed by B.F. Goodrich Chemical Company for 22 years. He stated that the company was reorganizing its plant in Henry, Illinois, where he worked. As a result of the reorganization the company offered Lindstrom a position at their plant in Deer Park, Texas. Lindstrom’s transfer represented a promotion, an increase in salary and an opportunity to go back to college at the company’s expense. He stated that he had purchased a new four-bedroom home in a new development in Le Porte, Texas. Derek would have his own bedroom in the new house in Texas. Lindstrom testified that he had a good relationship with Derek. He stated that he will receive five weeks of vacation and he plans to spend at least one-half of that time back in Illinois visiting friends and family in the Lacón, Illinois, area. Because of Lindstrom’s salary increase, petitioner will not be required to work in Texas.

Petitioner testified that she owned and operated a hair salon business in Lacón, Illinois. Her business required her to work up to 50 hours per week. She stated that she probably would not pursue employment in Texas and would therefore have evenings and weekends free to spend with Derek. She stated that she had not been able to visit much with her son on weekends or evenings for the past 41/2 years because of her busy work schedule. The move would therefore enable her and her son to spend more time together and do things they had been unable to do because of her employment.

Petitioner testified that Derek has an interest in art. The school Derek had been attending in Illinois did not offer art classes until high school. However, the school Derek would attend in Texas offers art classes to children Derek’s age. Derek would also have more exposure to computers and computer training in the Texas school. Each class at the Texas elementary school has an aide to the teacher, whereas the Illinois school Derek had been attending did not.

Petitioner has always facilitated and encouraged visitation between Derek and respondent. She stated that respondent had always exercised his visitation rights. Respondent cared for Derek nearly every weekend while petitioner was at work. She conceded that contact between Derek and his father would be reduced if her petition was granted, but she thought respondent’s visitation should be extended during the summer and Christmas holiday.

Respondent testified that he was single and employed as a machine operator for a steel company and a part-time farmer. He was working the 4 p.m. to midnight shift, but would change to the midnight to 7 a.m. shift if Derek lived with him. In that case, his mother or niece would watch Derek while he was at work. Respondent had visitation with Derek nearly every Saturday and most Sundays since 1987. He regularly attended church with Derek and attended all of Derek’s school activities. He testified concerning numerous recreational and educational events and activities he had attended with Derek since 1987. He stated that most of their family resided in the La-con, Illinois, area and that the child had a good relationship with his family.

Following the hearing on the petition, the court took the matter under advisement. On August 12, 1992, the court issued an order granting the petition for leave to remove the minor child. Respondent’s motion to reconsider was denied and this appeal followed.

On appeal, respondent contends that the trial court’s decision to grant the petition for removal was against the manifest weight of the evidence. He argues that petitioner failed to prove that the move would improve the quality of life for the child.

The paramount question in a removal case is whether the move is in the best interest of the child (Ill. Rev. Stat. 1991, ch. 40, par. 609). Each case must be judged on its own unique set of facts. (In re Mar riage of Davis (1992), 229 Ill. App. 3d 653, 594 N.E.2d 734.) Our supreme court has identified five factors to consider in determining whether removal is in the child’s best interests: (1) the likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the child; (2) the motives of the custodial parent in seeking the move; (3) the motives of the noncustodial parent in resisting the removal; (4) the visitation rights of the noncustodial parent; and (5) whether a realistic and reasonable visitation schedule can be reached if the move is allowed. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 326-27, 518 N.E.2d 1041, 1045-46.) A trial court’s determination as to whether removal is in the best interests of the child will not be reversed unless it is clearly against the manifest weight of the evidence. Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046.

Regarding the first factor, we find the proposed move to Texas will likely enhance the general quality of life for both the custodial parent and the child. Because of her husband’s increase in salary, petitioner will no longer have to work long hours managing her own business. She will be free to care for the needs of her child. She will also be able to spend much more time with the child in the evenings and on weekends. In essence, petitioner will have the opportunity to devote the majority of her time to her son. Additionally, petitioner and her husband have a new home where Derek would have his own bedroom, and Derek would attend a school where he would receive more computer training and his art interest could be cultivated. In light of all of these facts, we can only conclude that the move would improve the quality of life of both petitioner and Derek in a number of respects.

The second and third factors set out in Eckert concern the motives of the custodial parent in requesting the move and the noncustodial parent in resisting it. We find the motives of both parties to be proper. The petitioner wants to move to Texas to be with her husband, improve her financial situation, and have the opportunity to spend more time with her son. There is no evidence, and respondent does not contend, that petitioner sought leave to remove the child in an attempt to frustrate respondent’s visitation. Respondent’s motive for resisting the removal is that he does not want to lose his established visitation rights with his son.

The fourth and fifth factors to consider are the visitation rights of the noncustodial parent and whether a realistic and reasonable visitation schedule can be reached if the move is allowed. There is no doubt that the proposed move will result in diminished visitation for the respondent. He is accustomed to spending time with his son nearly every weekend. That, of course, would no longer be possible. However, petitioner indicated that she believed respondent should receive extended visitation during the summer. While a new visitation schedule has not yet been established, the trial court stated in its order that most of the activities enjoyed by respondent and Derek were outdoor, warm weather activities that can be accomplished through extended summer visitation. This same consideration was recently relied on by the court in In re Marriage of Deckard in affirming the granting of a petition for removal. (See In re Marriage of Deckard (1993), 246 Ill. App. 3d 427, 433, 615 N.E.2d 1327, 1332.) The trial court in this case also found that petitioner has been very accommodating and cooperative regarding visitation and has fostered the relationship between Derek and respondent. We agree with this assessment. We also agree with the trial court’s determination that because the families of both petitioner and her husband are located in the Lacón area, it is likely they will return with some frequency. Our supreme court has held that when a parent has assiduously exercised his visitation rights, a court should be loathe to interfere by permitting removal of the child for frivolous, unpersuasive or inadequate reasons. (Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1046.) There is no question that respondent is a caring, responsible father who has diligently exercised his visitation rights. However, as discussed above, petitioner’s reasons for seeking the move to Texas are not frivolous, unpersuasive or inadequate. We find that a visitation schedule which is reasonable under the circumstances can be reached. We empathize with respondent’s position, but we believe the best interests of the child must prevail.

The facts of this case are somewhat analogous to In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, 529 N.E.2d 780, where the denial of a removal petition was reversed on appeal. In that case, the petitioner’s new husband asked for and received a transfer to Seattle simply because he liked the city. His income would not change by the move, and the petitioner’s employment opportunities in Seattle were comparable to what she could find in Illinois. The court found that the child’s quality of life would not be directly enhanced by the move because it would place her in an equivalent educational situation and her financial support would remain the same. The court did find, however, that the move to Seattle would enhance the petitioner’s quality of life, and therefore, the child’s quality of life would be indirectly enhanced. Furthermore, the court determined that the respondent who, like respondent in this case, consistently exercised his visitation rights would still be able to maintain a close relationship with his daughter by having extended visitation periods during the summer and during school breaks. The court held that the removal petition should have been granted. (Zamarripa-Gesundheit, 175 Ill. App. 3d at 190, 529 N.E.2d at 783.) Similarly here, we find that the removal petition in this case was properly granted by the trial court.

For the reasons stated above, the order of the circuit court of Marshall County is affirmed.

Affirmed.

BRESLIN and LYTTON, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. MICHAEL LEE, Petitioner-Appellant.
    Second District
    No. 2—92—0500
    Opinion filed September 29, 1993.
    No brief filed for appellant.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Petitioner, Michael Lee, was convicted of forgery (Ill. Rev. Stat. 1989, ch. 38, par. 17-3(a) (now 720 ILCS 5/17-3(a) (West 1992))) and sentenced to an extended-term sentence of eight years. Petitioner appealed, and the court affirmed his conviction. Petitioner filed a post-conviction petition asserting that the court erroneously sentenced him to an extended-term sentence by relying on prior convictions which were misdemeanors enhanced to felonies. The trial court appointed counsel to assist petitioner in the post-conviction proceedings. The State moved to dismiss the petition, and the court granted the motion. Petitioner appealed, and the court appointed the State Appellate Defender to represent him on appeal.

The State Appellate Defender has moved to withdraw as counsel on appeal. Counsel states that she has thoroughly reviewed the record on appeal and has concluded that the instant appeal presents no issue of merit upon which the defendant could realistically expect to obtain any relief from this court. First, there was no showing in the circuit court that the prior felonies to which the defendant referred were in fact misdemeanors enhanced to felonies, even though the defendant was given an opportunity to provide such evidence to the court. Second, the circuit court specifically stated that it had relied on another unenhanced felony (a 1989 forgery conviction for which the defendant was placed on probation) as the basis for the imposition of the extended-term sentence. Counsel submitted a memorandum in support of the motion which sets out a history of the case and includes the issues raised by petitioner in his post-conviction petition. Counsel represents that she advised petitioner of the opinion of the Appellate Defender’s office and sent a copy of the motion to him.

Counsel asserts that under Pennsylvania v. Finley (1987), 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990, the United States Constitution does not require the full protection of the procedures set out in Anders v. California (1967), 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396, for appeals in post-conviction proceedings. We agree with counsel that a post-conviction petitioner is entitled to representation only as provided by State law (Finley, 481 U.S. at 558-59, 95 L. Ed. 2d at 548, 107 S. Ct. at 1995), which, in Illinois, is reasonable representation (People v. Flores (1992), 153 Ill. 2d 264, 276).

Counsel requested that this court grant petitioner a reasonable opportunity to show cause why the appeal should not be dismissed or the judgment affirmed for lack of merit and why the office of the State Appellate Defender should not be allowed to withdraw as counsel on appeal. The clerk of this court advised petitioner that he had 30 days in which to respond to the motion and in which he could file any additional matters of merit. The 30-day period has elapsed, and petitioner has not responded.

We agree with counsel that there are no meritorious issues which would support an appeal. We further note that because the post-conviction petition attacked only the sentence, and petitioner served his sentence and is no longer incarcerated, the appeal is moot. We therefore grant the motion to withdraw as counsel on appeal, and we affirm the judgment of the circuit court.

Affirmed.

QUETSCH and COLWELL, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESTER WARWICK, Defendant-Appellant.
    Second District
    No. 2—91—1423
    Opinion filed September 27, 1993.

      G. Joseph Weller and Ingrid L. Moller, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Brian L. Buzard, of Mt. Morris (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Lester Warwick, pleaded guilty to one charge of reckless homicide (Ill. Rev. Stat. 1991, ch. 38, par. 9 — 3(a) (now 720 ILCS 5/9 — 3(a) (West 1992))). Although reckless homicide is normally a Class 3 felony (see Ill. Rev. Stat. 1991, ch. 38, par. 9 — 3(dX2) (now 720 ILCS 5/9 — 3(dX2) (West 1992))), the fact that defendant committed the offense while he was under the influence of alcohol enhanced the offense to a Class 2 felony and defendant was sentenced to 10 years’ imprisonment, or four years under the maximum for this particular Class 2 felony (see Ill. Rev. Stat. 1991, ch. 38, par. 9 — 3(e) (now 720 ILCS 5/9 — 3(e) (West 1992))).

On appeal, defendant argues that the statute under which he was sentenced violates his constitutional rights to due process and equal protection in two respects. First, the use of the intoxication factor to enhance reckless homicide, but not involuntary manslaughter, to a Class 2 felony creates an irrational distinction between similarly situated offenders. Second, the reckless homicide statute improperly allows the equivalent of an extended-term sentence even without any of the aggravating factors needed for an extended term for other felonies (see Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2 (now coditied, as amended, at 730 ILCS S/5-5-3.2 (West 1992)); Ill. Rev. Stat. 1991, ch. 38, par. 1005-8-2(aX4) (now 730 ILCS 5/5-8-2(aX4) (West 1992))).

While he was under the influence of alcohol, defendant illegally drove his car into an intersection, striking a car and killing a passenger in that car. Defendant was convicted under the following statute:

“§9 — 3. Involuntary Manslaughter and Reckless Homicide, (a) A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle, in which case the person commits reckless homicide.
(b) In cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs at the time of the alleged violation shall be prima facie evidence of a reckless act.
* * *
(d) Sentence.
(1) Involuntary manslaughter is a Class 3 felony.
(2) Reckless homicide is a Class 3 felony.
(e) In cases involving reckless homicide in which the defendant was determined to have been under the influence of alcohol or any other drug or drugs as an element of the offense, or in cases in which the defendant is proven beyond a reasonable doubt to have been under the influence of alcohol or any other drug or drugs, the penalty [sic] shall be a Class 2 felony, for which a person, if sentenced to a term of imprisonment, shall be sentenced to a term of not less than 3 years and not more than 14 years.” Ill. Rev. Stat. 1991, ch. 38, par. 9 — 3 (now 720 ILCS 5/9-3 (West 1992)).

Defendant argues first that subsection (e) of the statute violates equal protection and due process because it arbitrarily mandates different levels of punishment for similarly situated offenders. Defendant maintains that there is no basis for the differential treatment of (1) one who, while under the influence of alcohol, recklessly causes the death of another by driving a motor vehicle and (2) one who, while under the influence of alcohol, recklessly causes the death of another by some other means, e.g., firing a gun in public. Defendant notes that in each case the offender’s mental state is the same and the effect on the victim is identical. We agree with defendant’s observations concerning the identicalness of the mental state and the effect on the victim in defendant’s analysis. However, we do not agree with defendant that the scheme is thereby unconstitutional.

A party asserting that a statute is unconstitutional has the burden to demonstrate clearly the alleged constitutional violation. (People v. Hamm (1992), 149 Ill. 2d 201, 208-09.) Defendant concedes that, because the statutory scheme at issue does not implicate either a suspect classification or a fundamental right, it violates neither equal protection nor due process as long as it bears a rational relation to a legitimate State goal. People v. Shephard (1992), 152 Ill. 2d 489, 499-500; People v. Windsor (1993), 242 Ill. App. 3d 1030, 1032.

The equal protection clauses of the Federal and State Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2) do not require equal treatment of differently situated classes of persons. (Jenkins v. Wu (1984), 102 Ill. 2d 468, 477.) Furthermore, where, as here, no fundamental right is at stake, the legislature may even differentiate between similarly situated persons if there is a rational basis for doing so. People v. Esposito (1988), 121 Ill. 2d 491, 501.

We conclude that there is a rational basis for imposing a particularly harsh penalty on those whose reckless behavior while intoxicated behind the wheel of a motor vehicle causes death to another. To use defendant’s example, we agree that intoxicated persons who recklessly cause the death of another by the use of firearms act with the same mental state (recklessness) and cause the same evil (death to the victim) as intoxicated persons who recklessly cause the death of another by driving under the influence of alcohol or drugs. Nonetheless, case law makes it abundantly clear that, even where two offenses are equally serious, the legislature may punish one of them more severely if it has a rational basis to conclude that the offense is a more pervasive threat to society and therefore requires greater penalties to protect society through the law’s deterrent effect.

Instructive in the present context is People v. Esposito (1988), 121 Ill. 2d 491, a case that neither party cites. The defendant in Esposito argued that the legislature created an irrational classification by limiting the statutory summary suspension of driving privileges of those who submit to chemical testing to drivers whose blood-alcohol concentration equaled or exceeded 0.10. The defendant argued that this limitation improperly distinguished between those drivers with a certain blood-alcohol level and other drivers who might be equally impaired by drugs. The court rejected this argument, stating:

“We are not persuaded *** that persons with a BAG of 0.10 or more and other persons under the influence of alcohol, drugs, or a combination thereof, are so similarly situated as to require identical treatment under the equal protection clause. The General Assembly enacted the summary suspension scheme in response to widespread concern over the threat which drunk drivers pose to safety and human life in our society [citation] and may have rationally concluded that a statutory measure designed to remove drunk drivers from the roadways was more urgently needed than a measure to remove other categories of impaired drivers from the roads.” Esposito, 121 Ill. 2d at 502-03.

This reasoning is directly applicable to the statute under challenge here. Although an individual case of involuntary manslaughter through the intoxicated use of a weapon may be as serious as an individual case of reckless homicide from drunk driving, the legislature may have rationally concluded that there are many more instances of the latter type of tragic death and that greater penalties are proper here not because one offense is intrinsically more serious than the other but because it is a more pervasive menace to society. That driving while intoxicated is an extraordinarily widespread cause of accidental deaths is a matter of common knowledge, as the Esposito court recognized.

Other cases also hold that, in fixing the penalty for an offense, the legislature may consider the pervasiveness of the offense and the urgency to society as well as the intrinsic “evil” of the type of criminal conduct. In People v. Hamm (1992), 149 Ill. 2d 201, the supreme court held that the legislature could impose harsher penalties for commercially motivated intentional violations of laws against the killing or possession of aquatic life than for similar offenses that are not done for profit or commercial purposes. Although the defendants argued that the two types of conduct were intrinsically similar, the court reasoned that the classification was supported in part by the greater likelihood of such violations when a profit motive was present. Hamm, 149 Ill. 2d at 209-10.

In People v. Watson (1987), 118 Ill. 2d 62, the court upheld a statute that enhanced a conviction of battery to one of aggravated battery where the victim was a State or county public aid worker, but not where the victim was a local public aid worker. Although a battery committed against a local public aid worker is no less intrinsically intentional or harmful than one committed against a State or county public aid worker, the court concluded that the difference in penalties was rational in view of the greater risks to which State and county public aid workers were exposed. Thus, the court would not disturb the legislative determination that stiffer punishment was necessary to afford adequate protection for more vulnerable potential victims.

In People v. Pehrson (1989), 190 Ill. App. 3d 928, the court held that the legislature acted properly in imposing stiffer sentences for the delivery of cocaine than for the delivery of other controlled substances, such as heroin, that were not necessarily less dangerous than cocaine. The court relied in part on the fact that the legislature could reasonably conclude that cocaine was far more easily available than many other controlled substances. Pehrson, 190 Ill. App. 3d at 931.

The classification challenged here is rationally related to the statutory purpose of deterring reckless and potentially deadly conduct. Because the special punishment for reckless homicide resulting from drunken driving passes the rational basis test, it violates neither equal protection nor substantive due process. See Esposito, 121 Ill. 2d at 502-03; Boynton v. Kusper (1986), 112 Ill. 2d 356, 367 (exercise of the police power comports with due process if it bears a reasonable relationship to the public interest to be served and is not arbitrary or discriminatory).

Defendant’s second argument on appeal is that the statutory scheme at issue is unconstitutional because it allows a court to impose the equivalent of an extended-term sentence upon a defendant convicted of a Class 2 felony (reckless driving while under the influence of alcohol) without any requirement that the court find any of the factors in aggravation normally necessary to impose an extended-term sentence upon a defendant who has been convicted of a Class 2 felony. Defendant argues that this results in an irrational classification between defendants who have been convicted of reckless driving while intoxicated and defendants who are convicted of other felonies that the legislature has deemed no less intrinsically serious.

Defendant analogizes the penalty imposed in this case to a double enhancement. He argues that the statute in effect makes intoxication a double enhancement, as the presence of that factor not only raises a Class 3 felony to a Class 2 felony but also makes the Class 2 felony involved punishable by the equivalent of an extended-term sentence. Although we do not quarrel with this characterization of the statute, a double enhancement of a penalty is permissible and will be given effect where it is clear that the legislature intended such a result. People v. Ferguson (1989), 132 Ill. 2d 86, 97-98; Fitzsimmons v. Norgle (1984), 104 Ill. 2d 369, 374.

What we have said in response to defendant’s first challenge to the statute applies here as well. Although the legislature has made it easier for courts to impose severe sentences for reckless homicide while intoxicated than for other Class 2 felonies, we cannot say that this distinction is irrational or improper.

The classification schedule for various offenses is not itself the crucial consideration. (See Pehrson, 190 Ill. App. 3d at 930-31 (harsher penalties for delivery of cocaine than for delivery of heroin were not improper merely because legislature made heroin a “schedule I” controlled substance and made cocaine a “schedule II” substance).) We attach no importance to the fact that the statute at issue labels the offense as a “Class 2 felony.” Had the statute at issue la-belled reckless driving while intoxicated a Class 1 felony, defendant could not make the argument he now makes. Defendant’s argument exalts labeling over substance.

Moreover, the reasons that we have already given for upholding the distinctive penalty for reckless homicide while intoxicated refute defendant’s second challenge to the statute. Even were we to assume that the labeling of the offense at issue required us to conclude that persons who have committed reckless driving while intoxicated are of necessity “similarly situated” to persons who have committed other felonies that have been denominated “Class 2,” the legislature could have rationally concluded that this is a case where equal protection and due process do not require precisely equal treatment for members of similarly situated groups. Courts have acknowledged that “drunk driving and its consequences represent one of our society’s gravest problems” (People ex rel. Eppinga v. Edgar (1986), 112 Ill. 2d 101, 110), or, phrased differently, that the “ ‘slaughter on our highways *** now reaches the astounding figures only heard of on the battlefield.’ ” (Breithaupt v. Abram (1957), 352 U.S. 432, 439, 1 L. Ed. 2d 448, 453, 77 S. Ct. 408, 412, quoted with approval in South Dakota v. Neville (1983), 459 U.S. 553, 558, 74 L. Ed. 2d 748, 755, 103 S. Ct. 916, 920.) Given the extraordinary pervasiveness of the problem that the legislature has addressed, we cannot say that the severe penalties it has imposed in the hopes of lessening this problem are constitutionally impermissible.

As defendant raises no other challenges to his conviction or sentence, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

WOODWARD and McLAREN, JJ., concur.


author: JUSTICE DOYLE

text:
    JANET FRALEY, as Personal Representative of the Estate of John Thomas, Deceased, Plaintiff-Appellant, v. THE CITY OF ELGIN et al., Defendants-Appellees.
    Second District
    No. 2—92—0708
    Opinion filed September 27, 1993.

      Charles E. Nave, of McNamee, Mahoney & Nave, Ltd., of Dundee, for appellant.
    Patricia L. Argentati, of O’Reilly, Cunningham, Norton & Mancini, of Wheaton, for appellees.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Janet Fraley, as personal representative of the estate of decedent, John Thomas, appeals from an order of the circuit court of Kane County dismissing her amended complaint against defendants, City of Elgin, Robert Baird, Frederick Paul Lugar and Sergeant Kelly, wherein she alleged negligence and wilful and wanton conduct. Plaintiff’s sole contention on appeal is that the trial court erred in dismissing her complaint because it failed to recognize the “special duty” exception to governmental tort immunity under the circumstances of her case.

In January 1989, plaintiff filed a two-count complaint against defendants alleging negligence and wilful conduct. Following the dismissal of various paragraphs in count I of her complaint and a portion of the count II ad damnum clause seeking punitive damages, the clerk of the circuit court of Kane County issued notices, pursuant to local court rule 1.27, setting a March 28, 1991, hearing as to why plaintiff’s case should not be dismissed for want of prosecution. Defense counsel appeared on the prescribed date; neither plaintiff nor her attorney appeared. The circuit court dismissed plaintiff’s complaint for want of prosecution.

On April 12, 1991, plaintiff moved to vacate the dismissal order and noticed a hearing for April 23, 1991. On the hearing date, defense counsel appeared, but neither plaintiff nor her attorney appeared. According to defendants’ brief, the trial court either struck plaintiff’s motion to vacate or removed the motion from the call. In any case, according to defendants, the trial court did not enter an order. Our search of the record reveals no order reflecting the trial court’s action.

On June 14, 1991, plaintiff again noticed up her motion to vacate for hearing on June 25, 1991. Defendants objected on the ground that the trial court no longer had jurisdiction because more than 30 days had elapsed since the entry of the order of dismissal for want of prosecution. The trial court granted plaintiff’s motion to vacate the March 28 order. Subsequently, on defendants’ motion, the trial court dismissed the remaining allegations of count I and count II of plaintiff’s complaint.

Plaintiff filed an amended one-count complaint sounding in negligence and wilful conduct. Her complaint alleged that on or about January 27, 1988, decedent was arrested by officers of the Elgin police department and transported to the police station. During transport, decedent exhibited unusual behavior and repeatedly banged his head against the walls of the paddy wagon. Following his arrival at the station, decedent was placed in “solitary confinement.” He was not checked on a regular basis nor were any special precautions taken. Sometime later on the date of his arrest, decedent was found dead in his cell, hanging by his neck. Plaintiff alleged that defendants were guilty of carelessly, negligently, and wilfully failing to check decedent on a regular basis, remove his personal effects at the time of detention, supervise the cell blocks, seek a treatment alternative to detention, exercise practices and customs relative to intoxicated or self-destructive persons, maintain a camera surveillance system, and inspect the jail facility for health and safety hazards. Additionally, defendants’ decision that corrective measures were unnecessary to remedy design defects in the jail facility resulted in a health and safety hazard. Further, defendants’ knowledge of a suicide approximately one year prior to decedent’s suicide placed defendants on notice of a dangerous condition within the jail facility, thus giving rise to a duty to correct defects in order to prevent future suicides.

Defendants filed a section 2 — 619 motion to dismiss (735 ILCS 5/ 2 — 619 (West 1992)), asserting, in part, that section 4 — 103 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4 — 103 (West 1992)) barred plaintiff’s claim. Defendants further argued that plaintiff’s case did not come under the “special duty” exception to the Tort Immunity Act. (See generally Barth v. Board of Education (1986), 141 Ill. App. 3d 266.) The trial court dismissed plaintiff’s complaint, holding that Bollinger v. Schneider (1978), 64 Ill. App. 3d 758, was controlling and that the special exception to section 4 — 103 of the Tort Immunity Act did not apply. Plaintiff timely appeals from the dismissal of her amended complaint.

Defendants initially contend that we should not consider this appeal because the trial court lacked jurisdiction to enter the June 25, 1991, order vacating its earlier order dismissing plaintiff’s complaint for want of prosecution. Defendants argue that plaintiffs failure to appear at the April 23, 1991, hearing on her motion to vacate and the trial court’s failure to enter an order on the motion were tantamount to an abandonment of the matter. Therefore, when the trial court later heard plaintiff’s “re-noticed” motion on June 25, and entered its order vacating the dismissal, it was without jurisdiction to do so because more than 30 days had passed since the dismissal for want of prosecution.

As a general rule, the trial court loses jurisdiction over a matter when (1) 30 days have passed following the entry of a final and appealable order concerning that matter; and (2) during that time, neither party has taken action to delay the 30-day period. (Bowers v. Village of Palatine (1990), 204 Ill. App. 3d 135, 137.) A dismissal for want of prosecution is not a final order. (Flores v. Dugan (1982), 91 Ill. 2d 108, 112.) Contrary to defendants’ contention, the trial court did not lose jurisdiction over the present matter 30 days after the entry of the dismissal for want of prosecution. Although the record is not clear regarding the trial court’s action at the April hearing, we decline to speculate that plaintiff abandoned her motion to vacate the dismissal. Plaintiff’s April 12 motion to vacate the dismissal order tolled the running of the 30-day period. Absent any evidence of an order disposing of that motion, we must conclude that the motion remained pending, and the trial court retained jurisdiction to vacate the dismissal order. See Bowers, 204 Ill. App. 3d at 137.

Turning to the merits of the appeal, plaintiff contends that her claim was not barred by section 4 — 103 of the Tort Immunity Act because the facts as pleaded brought her cause of action within the “special duty” exception to statutory immunity. Defendants respond that various sections of the Tort Immunity Act bar plaintiff’s cause of action and that her claim does not fit within a special duty exception. Accordingly, we must first determine whether section 4 — 103, under the circumstances here, barred plaintiff’s claim, and, if so, whether the special duty exception to statutory immunity precluded defendants’ reliance on section 4 — 103.

Section 4 — 103 of the Tort Immunity Act provides:

“§4 — 103. Neither a local public entity nor a public employee is liable for failure to provide a jail, detention or correctional facility, or if such facility is provided, for failure to provide sufficient equipment, personnel, supervision or facilities therein. Nothing in this Section requires the periodic inspection of prisoners.” 745 ILCS 10/4 — 103 (West 1992).

It is axiomatic that in construing a statute a court must ascertain and give effect to the legislature’s intent. (Collins v. Board of Trustees of the Firemen’s Annuity & Benefit Fund (1993), 155 Ill. 2d 103, 110.) The statutory language employed is ordinarily the best indication of legislative intent, and such language should be accorded its plain or ordinary and popularly understood meaning. (Collins, 155 Ill. 2d at 111.) Moreover, a statute must be read as a whole, and no word or paragraph should be interpreted so as to be rendered meaningless. (Collins, 155 Ill. 2d at 111.) Additionally, a court must consider the reason and necessity for the law, the evil to be remedied, and the object to be obtained by the statute. Collins, 155 Ill. 2d at 111.

Taking the well-pleaded facts of plaintiff’s complaint as true for the purpose of defendants’ motion to dismiss and being further aware that a cause of action should not be dismissed upon its pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle the plaintiff to recover (see A.F.P. Enterprises, Inc. v. Crescent Pork, Inc. (1993), 243 Ill. App. 3d 905, 912), we conclude that the legislature intended section 4 — 103 of the Tort Immunity Act to immunize defendants from the type of conduct alleged in plaintiff’s amended complaint. The gist of plaintiff’s complaint is that decedent’s suicide was caused by defendants’ failure to monitor, supervise, or otherwise maintain the jail facility in a manner so as to safeguard decedent from the consequences of his own actions in taking his life. No facts are alleged to show that defendants were on notice of circumstances indicating that the suicide was immediately imminent or that defendants acted with wilful and wanton indifference to a life-threatening incident. Section 4 — 103 expressly immunizes local public entities and public employees from claims arising out of the failure to provide sufficient equipment, personnel, supervision or facilities therein. (745 ILCS 10/4 — 103 (West 1992).) Moreover, section 4 — 103 expressly provides that “[n]othing in [that] Section requires the periodic inspection of prisoners.” (745 ILCS 10/4 — 103 (West 1992).) Although plaintiff further alleged that defendants owed decedent a duty premised upon prevailing practices relative to intoxicated persons, and having been on notice of a prior suicide at the jail facility, these allegations, without any factual support, were nothing more than legal conclusions. Furthermore, plaintiff’s allegation that defendants failed to identify or undertake corrective measures relative to design defects were factually unsupported, thus making them insufficient as a matter of law. We need not consider conclusions of fact or law unsupported by specific factual allegations. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504-05; Abdo v. Trek Transportation Co. (1991), 221 Ill. App. 3d 493, 496.) Accordingly, taking only the well-pleaded facts of plaintiff’s complaint as true, we conclude that the clear legislative edict of section 4 — 103 of the Tort Immunity Act barred plaintiff’s claim.

Furthermore, we find persuasive support for our conclusion in Bollinger v. Schneider (1978), 64 Ill. App. 3d 758. In Bollinger, an action was brought on behalf of a minor against the sheriff, several deputy sheriffs, and Rock Island County for injuries sustained when the minor was sexually and physically assaulted by other inmates while confined in the juvenile section of the county jail. In his complaint, the plaintiff alleged that he was placed in a cell with prisoners with known vicious and assaultive propensities; that the defendants failed properly to supervise, control, and inspect the juvenile section of the jail; and that defendants failed to separate him from attacking inmates. Defendants moved to dismiss on the grounds that various immunities afforded them under the Tort Immunity Act, including section 4 — 103, barred plaintiffs cause of action. Before reaching its ultimate holding that the immunities afforded the defendants were waived because of the existence of insurance, the court initially determined that the defendants were immunized from liability under section 4 — 103. Although the court provided only limited elaboration, it concluded that the clear language of section 4 — 103 with its express reference to detentional facilities conveyed the legislature’s intent to bar claims grounded upon allegations of failing to safeguard plaintiff while detained in jail.

Our conclusion notwithstanding, however, plaintiff contends that the allegations of her complaint triggered the “special duty exception” to governmental tort immunity, thus precluding defendants from claiming the immunity afforded under section 4 — 103. It has been recognized that the special duty doctrine typically arises in two basic factual situations: (1) where a plaintiff sues a municipality for the failure to enforce a law or ordinance; or (2) when a plaintiff sues a municipality for injuries negligently caused by police officers or fire fighters while performing their official duties. (Burdinie, 139 Ill. 2d at 507-09.) Plaintiff cites no authority, and our research reveals none, which would bring the facts alleged in her complaint within a “special duty” exception to the legislative grant of immunity afforded local public entities and public employees under section 4 — 103. Instead, plaintiff relies solely on the formulaic expression of the exception enumerated in Barth (141 Ill. App. 3d at 278).

In Barth, the issue before the court was whether a city and its employees were immune from liability under section 4 — 102 of the Tort Immunity Act, which generally immunizes municipalities for the failure to provide adequate police protection (745 ILCS 10/4 — 102 (West 1992)), for the failure to provide adequate 911 emergency telephone service. Although the court acknowledged the special duty exception in its disposition, it held that 911 emergency telephone service was not a police protection service, thus not receiving the protection of section 4 — 102. (Barth, 141 Ill. App. 3d at 279.) Therefore, it was unnecessary to reach the issue of applying the special duty exception.

Plaintiff’s reliance on Barth is misplaced for at least three reasons: (1) it does not involve similar or analogous factual circumstances; (2) the court never reached the issue of applying the special duty exception; and (3) the court did not address section 4 — 103. Other than attempting to fit the facts of the present case into the factors expressed in Barth, plaintiff has made no attempt to argue why the exception should, on the facts of this case, be extended from its traditional application to include the supervision, control, and maintenance of detentional facilities. Furthermore, in the absence of direct authority, plaintiff has made no attempt to identify, articulate, or reconcile any relevant policy considerations underlying section 4 — 103 and those cases that have applied the special duty doctrine as an exception to statutory immunity. Accordingly, in the absence of any convincing rationale, and the lack of controlling authority, we refuse to apply the special duty doctrine to the facts alleged here.

Finally, plaintiff suggests that her action could be maintained under section 3 — 102 of the Tort Immunity Act (745 ILCS 10/3 — 102 (West 1992)). Section 3 — 102 provides:

“§3 — 102. (a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times it was reasonably foreseeable that it would be used ***.” (745 ILCS 10/3-102(a) (West 1992).)

First we note that plaintiff cites no authority in support of her contention that section 3 — 102 provides her with a basis for relief. Moreover, the express language of section 3 — 102 contemplates that its application shall be precluded by the operation of other more specific provisions of the Tort Immunity Act. Accordingly, because we have concluded above that section 4 — 103 specifically addressed the circumstances alleged in plaintiff’s complaint, section 3 — 102 is precluded from operation by section 4 — 103.

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

Affirmed.

UNVERZAGT and McLAREN, JJ., concur.