Vancura v. Katris

Docket No. 108652.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

RICHARD P. VANCURA, Appellee, v. PETER KATRIS et al.,

(Kinko’s Inc., Appellant).

Opinion filed October 7, 2010.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

Plaintiff Richard Vancura brought an action against Peter Katris,

Glenn Brown, and Randall Boatwright, alleging that the defendants

had colluded to deprive Vancura of his interest in a mortgage note by

forging Vancura’s signature on an assignment of that interest.

Vancura also sued Gustavo Albear, the notary public whose seal was

used to notarize the fraudulent mortgage assignment, and Albear’s

employer, Kinko’s, Inc. (Kinko’s). Relevant to this appeal, the circuit

court of Cook County held a bench trial and found Kinko’s liable to

Vancura based on a violation of section 7–102 of the Illinois Notary

Public Act (Act) (5 ILCS 312/7–102 (West 1996)) and a common law

claim based on theories of negligent training and negligent

supervision. The appellate court reversed the finding of liability under

the Act, but it affirmed the judgment of the trial court on the common

law negligence claim. We granted Kinko’s petition for leave to appeal

pursuant to Supreme Court Rule 315 (210 Ill. 2d R. 315).

Kinko’s argues that the common law duty of care for employers

of notaries is defined by the Act. Thus, it maintains that where its

training and supervision adhered to the standards set forth in the Act,

it cannot be liable. Kinko’s further asserts that it had no statutory duty

to train its notary employees, and therefore that its liability is limited

to the scope of its undertaking by the voluntary undertaking doctrine.

See Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32 (1992).

Plaintiff responds that the Act is not the only source of common law

duty for a notary’s employer, and that Kinko’s training and

supervision were negligent regardless of the extent of Kinko’s duty.

For the reasons given below, we reverse the trial court’s judgment

against Kinko’s and remand with directions to enter judgment in favor

of Kinko’s on both counts.

BACKGROUND

Plaintiff Vancura, a real estate investor, agreed to help defendant

Glenn Brown finance the purchase and rehabilitation of a single-family

home in Wheaton, Illinois, as an investment. Vancura loaned $100,000

to a land trust Brown established, and in return the trust executed a

$110,000 installment note that was secured by a first mortgage on the

investment property. Brown also personally guaranteed the note.

However, Brown had difficulty selling the Wheaton house, and when

the note matured he did not have the money to repay Vancura.

Vancura and Brown each sought advice from defendant Randall

Boatwright, another real estate investor, who offered suggestions on

how to improve the property. Boatwright then left town to look for

investors for his own project, a new video transmission company

called Multi Path Communications.

When Boatwright returned from his trip, his business partner,

Robert Brown, told him that Vancura was willing to trade the

installment note for a share of Multi Path Communications.1

1

Robert Brown was not a party to this case, nor did he appear as a

witness; the record does not explain his absence. To avoid confusion, we

refer to Robert Brown and Glenn Brown, who are not related, with their first

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Boatwright told Glenn Brown about the potential trade with Vancura

and offered to accept $90,000 in payment for the note, which was

then worth $117,333. Glenn Brown then asked another business

acquaintance, defendant Peter Katris, to pay Boatwright in exchange

for $90,000 and half of the profits from the sale of the Wheaton

house, whenever that occurred. Katris agreed, and Glenn Brown

arranged for his attorney, Karl Park, to conduct a real estate closing

to reflect the transactions. Thus, Glenn Brown understood that

Vancura would receive a share of Multi Path Communications and in

return he would assign the installment note and accompanying

mortgage to Boatwright, who would accept $90,000 in satisfaction of

both. Glenn Brown then paid the $90,000 to Boatwright with money

borrowed from Peter Katris, whom Glenn Brown repaid with

$90,000, plus half of the profits from the sale of the house.

Prior to the closing, Park drafted an “Assignment of Mortgage”

for Vancura to sign, along with a loan discount agreement for

Boatwright and Glenn Brown to sign and a release deed for

Boatwright to sign. According to Boatwright, against whom a default

judgment was entered in this case and who testified by way of an

evidence deposition, Robert Brown took the assignment of mortgage

to Vancura for his signature the night before the closing. When

Boatwright and Robert Brown met the next morning, they realized

that the assignment of mortgage and the release deed required

notarization, and they took the documents to the Kinko’s store in Oak

Lawn, Illinois. Later, when the closing was conducted, both the

assignment of mortgage and the release deed bore the apparent

signature and notary seal of Kinko’s employee Gustavo D. Albear, an

Illinois notary.

At the bench trial in this case, it was undisputed that Vancura

never signed the mortgage assignment, and he was not present when

the document was notarized. According to Boatwright, when he and

Robert Brown arrived at the Oak Lawn Kinko’s, he went to make

some photocopies while Robert Brown greeted an employee he knew

as “Gus.” When Boatwright approached Gus and Robert Brown at the

counter, the employee asked for Boatwright’s driver’s license.

names.

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Boatwright provided his license, and Gus notarized the release deed

bearing Boatwright’s signature. Boatwright did not remember whether

he signed the deed in Gus’s presence. Boatwright claimed to know

nothing about how the mortgage assignment bearing Vancura’s forged

signature was notarized.

At the trial, 10 years after the occurrence, Gustavo Albear, the

Kinko’s employee whose notary seal appears on the notarizations,

testified that he did not remember specifically notarizing the

assignment of mortgage or the release deed. When presented with

both documents, he acknowledged that the notary stamp on each

appeared to be his. Similarly, he testified that the signature on the

release deed appeared to be his. However, he was “pretty certain” that

the notary signature on the forged assignment of mortgage was not

his. According to Albear, the two signatures appeared slightly

different from one another, and the assignment of mortgage signature

read “Gustavo David Albear” rather than “Gustavo D. Albear.” Albear

explained that he never signed anything with his middle name “for

some private reasons and religious reasons,” and that he had not used

his middle name for an official purpose since he had become a United

States citizen.2 Albear also testified that he had kept a logbook of all

notarizations he performed while working for Kinko’s, but that

logbook could not be located for trial.

The closing occurred as planned, and when Vancura discovered

the fraudulent mortgage assignment, he brought suit against

Boatwright, Glenn Brown, Katris, Albear, and Kinko’s. Glenn Brown

and Katris also filed claims against Albear and Kinko’s. Only the

claims against Kinko’s are at issue in this appeal, and we therefore

review only the facts that are relevant to those claims.

Each of the three complaints against Kinko’s included a claim

based on common law theories of negligent supervision and negligent

training, as well as a claim based on section 7–102 of the Illinois

Notary Public Act (5 ILCS 312/7–102 (West 1996)). Section 7–102

provides:

“§7–102. Liability of Employer of Notary. The employer

of a notary public is also liable to the persons involved for all

2

Albear’s seal, which appears on both the assignment of mortgage and the

release deed, lists his name as simply “Gustavo Albear.”

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damages caused by the notary’s official misconduct, if:

(a) the notary public was acting within the scope of the

notary’s employment at the time the notary engaged in the

official misconduct; and

(b) the employer consented to the notary public’s official

misconduct.” 5 ILCS 312/7–102 (West 1996).

“Official misconduct” under the Act is defined in section 7–104:

“The term ‘official misconduct’ generally means the

wrongful exercise of a power or the wrongful performance of

a duty and is fully defined in Section 33–3 of the Criminal

Code of 1961. The term ‘wrongful’ as used in the definition of

official misconduct means unauthorized, unlawful, abusive,

negligent, reckless, or injurious.” 5 ILCS 312/7–104 (West

1996).

Albear, who settled with Vancura before trial, testified that he

became a notary at the request of Kinko’s in 1995, and participated in

a required notary training course taught by a Kinko’s trainer.

According to Albear, he learned at the training that there were three

types of notarizations. First, “notarization through identification, a

card or some type of written identification”; second, notarization of

a person known personally to Albear; and third, notarization based on

an identification made by someone known personally to Albear.

However, Albear testified that he always requested identification to

“feel comfortable with a situation.” According to Albear, Kinko’s

taught him to ask for identification with a signature, but the

identification need not include a photograph. When asked how an

identification with a signature but no photo would enable him to verify

that the bearer of the identifying document was the person he claimed

to be, Albear responded, “Well, that is not my job. My job is to verify

your signature based on what I have in front of me.”

With respect to the training program itself, Albear testified that it

was a two- or three-day program that was “more marketing than

anything else.” The instructor taught Albear to keep a logbook of his

notarizations, and Albear did. He was also instructed to keep his

notary seal and logbook safe, so Albear arranged to keep his materials

in the manager’s desk at the Oak Lawn Kinko’s when they were not

in use. Neither the office nor the drawer in which he kept his seal and

logbook were consistently locked, but if either or both of them were

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locked, Albear would have to ask a manager to open them if a

notarization was requested. Although the layout of the Oak Lawn

Kinko’s was “[v]ery open,” the manager’s office was the most secure

part of the store. Albear also testified that when he transferred to a

different Kinko’s store in early 1996, he turned his seal and spiral-

bound logbook over to the Oak Lawn manager.

Daniel Behnke, who was the manager of the Oak Lawn Kinko’s

in 1995, denied taking possession of Albear’s notary seal or logbook.

He testified that the Oak Lawn store employed two or three notaries

at the time, including Albear, and that he did not review any notary

acts. He also stated that the store never received any complaints or

allegations of improper notarizations, nor was he ever asked to

approve any notarizations. He agreed with Albear that the manager’s

desk was the most secure part of the Oak Lawn facility.

Al Yamnitz testified that he was a regional training manager at

Kinko’s in 1995, and he developed and conducted Albear’s notary

training. Prior to working at Kinko’s, Yamnitz had been a trainer at

a number of restaurants and retail stores, including Walgreens and T.J.

Maxx. Although he was not a notary, Yamnitz was asked to develop

a notary training program for employees who elected to become part

of Kinko’s new notary service in mid-1995. He reviewed the Act and

obtained a copy of the Notary Public Handbook from the Illinois

Secretary of State’s office. Using these materials, Yamnitz created a

teaching manual for the notary class and a student workbook. He also

purchased three videotapes from the National Notary Association for

use in the training. When he had completed his development of the

training program, he sent a copy of his materials to Kinko’s corporate

offices, but he did not hear back from them. After he had developed

the class, Yamnitz also put in a request to attend a “traveling shelf”

notary training program at a cost of $300 or $400, but his request was

denied.

Yamnitz told the court that the classes he taught consisted of

lectures, the videos, and class discussions about “different aspects of

notarial acts.” He “typically” taught students to identify people on the

basis of “a state ID, driver’s license, or some type of ID that had a

picture, a description, and the signature on it.” Although he testified

that he taught students to look for a photo, he acknowledged that he

also taught them that only one form of identification was required.

Yamnitz also recommended that students keep logbooks of their

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notarial acts. With respect to the security of the logbook and seal,

Yamnitz stated that he told students, “[I]f they were in the store, they

should keep the stamp on their person ***. When they left the

building, if they didn’t have a place they could lock it up, take it with

them because they were the ones that [were] responsible for what was

in the book.” On cross-examination, Yamnitz also acknowledged that

the class was not graded, and no testing was performed to ensure

comprehension.

Vancura also presented the testimony of Michael Closen, an

expert on notary law and practice. Closen, a licensed Illinois attorney,

retired from John Marshall Law School after 27 years. He is a member

of the National Notary Association, and he served on the drafting

committees for the Notary Code of Professional Responsibility and the

Model Notary Act of 2002. Closen has written extensively on the

subject of notary law and practice, and he served as an Illinois notary

from approximately 1990 until he left the state in 2003.

Closen testified that, in his expert opinion, the standard of care for

notaries is “reasonableness,” and Kinko’s training of Albear was

inadequate in a number of ways. According to Closen, there were only

two prevailing views about the proper way to identify a document

signer in 1995. In one view, only one form of identification was

required, but that identification needed to include at least a signature

and a photograph. In the other view, adopted by the Model Notary

Act of 1984, two or more forms of identification were required, at

least one of which needed to include a signature, photograph, and

physical description. Closen opined that Illinois had adopted the latter

view, pointing to the version of the Illinois Notary Public Act in force

in 1995. The relevant portion of that statute stated:

“A notary public has satisfactory evidence that a person is

the person whose true signature is on a document if that

person:

(1) is personally known to the notary;

(2) is identified upon the oath or affirmation of a

credible witness personally known to the notary; or

(3) is identified on the basis of identification

documents.” (Emphasis added.) 5 ILCS 312/6–102(d)

(West 1996).

According to Closen, the plural “documents” means that more than

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one form of identifying document was required.3

Based on his review of the depositions of Albear and Yamnitz and

a summary of Albear’s trial testimony, Closen concluded that Yamnitz

was “unqualified and unfamiliar with sound notary practice.” He noted

that Yamnitz apparently emphasized the need for just one form of

identification with a signature, but “more importantly” he found

Albear’s focus on the signature alone troubling. Based on Albear’s

testimony, Closen speculated that Albear would not have paid any

attention to a photo or physical description even if one had been

provided.

Closen also found that the training and supervision of Albear was

deficient with respect to the format and contents of the notary

logbook Albear kept. According to Closen, a spiral-bound notebook

was an unacceptable format for a notary logbook, because pages

could easily be removed. He testified that the information Albear

recorded about each notarization was also “woefully incomplete,” in

that Albear did not require signers to sign the logbook. In addition,

Closen noted that the logbook should be kept in a secure location, and

the manager’s office in which Albear kept his logbook was not

sufficiently secure. Closen also opined that Albear had not been

properly trained on the disposal of his seal and logbook. For support,

Closen noted that Albear had simply turned the notary seal over to his

manager when he left the Oak Lawn store, rather than defacing or

destroying the seal.

After seven days of trial proceedings held between September

2005 and January 2006, the court found defendants jointly and

severally liable to Vancura for the damages. Relevant to this appeal,

the court found Kinko’s liable to Vancura, Glenn Brown, and Katris

under both the statutory and common law claims.

The appellate court reversed in part and affirmed in part, with one

justice dissenting. 391 Ill. App. 3d 350. With respect to the statutory

claim, the majority concluded that “the material facts regarding

Albear’s conduct are undisputed.” 391 Ill. App. 3d at 365. It noted

Kinko’s acknowledgment that either Albear notarized Vancura’s

3

Although Kinko’s twice unsuccessfully moved to exclude Closen’s

testimony about the proper interpretation of the statute, it has not pursued

this issue on appeal.

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signature despite Vancura’s absence, or Albear knowingly or

unknowingly allowed someone to apply his notary stamp. Under either

scenario, the court reasoned, Albear was guilty of negligent or

reckless conduct sufficient to constitute “official misconduct” under

section 7–104 of the Act. However, the court found that Kinko’s did

not “consent” to Albear’s official misconduct, and therefore the court

rejected the trial court’s determination that Kinko’s was liable under

the Act. 391 Ill. App. 3d at 379-80.

With respect to the common law claim, the majority initially found

that Kinko’s had waived review by failing to cite relevant authority,

in violation of Supreme Court Rule 341(h)(7)4 (210 Ill. 2d R.

341(h)(7)). 391 Ill. App. 3d at 368. Nonetheless, the majority

conducted an extensive review of the common law theories,

concluding that “the negligence judgment is consistent with the

manifest weight of the evidence,” and that it would have affirmed even

if Kinko’s had complied with the rule. 391 Ill. App. 3d at 369.

The majority agreed with Kinko’s that Kinko’s was under no

statutory obligation to train its notary employees, but noted that

Kinko’s chose to provide training and then showed “no concern” for

whether the training was sufficient. 391 Ill. App. 3d at 369. According

to the court, the evidence showed that Yamnitz did not effectively

train Albear in sound notary practices; although Yamnitz testified that

the training he developed was consistent with the Act and the Notary

Public Handbook, the court found that Albear’s clear misapprehension

of his duties conflicted with Yamnitz’s claims. The court noted that

Albear asked customers to “swear or affirm” that they were who they

claimed to be, although the Act includes no such identification

process. The court also addressed Albear’s testimony that a

photographic identification was not required, opining without

reference: “In this day and age, an adequate identification document

under the circumstances is one that includes at least a photograph and

signature.” 391 Ill. App. 3d at 371. The majority pointed out that its

opinion on this matter was consistent with the Model Notary Act of

1984. It also referred to the comments to the 2002 Model Notary Act,

which it called “particularly pertinent” to this case. The majority

4

The appellate court opinion cites Rule 341(e)(7), the provisions of which

became Rule 341(h)(7) in 2006. We refer to the current version of the rule.

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expressly declined to comment on whether, as Professor Closen

testified, two forms of identification were required by the Act in 1995.

Instead, it found that Albear’s testimony established a practice of

accepting an oath or affirmation and “signature exemplar,” and such

a practice would be insufficient under the Act regardless of whether

the law required one or two forms of identification. 391 Ill. App. 3d

at 373.

With respect to Kinko’s supervision of Albear, the majority found

that a reasonably careful employer would have:

“ensured that supervisory personnel at the Oak Lawn store

understood Albear’s responsibilities such that they never took

possession of his seal at the 24-hour store, that they provided

a secure storage place that only Albear could access, and that

they refused possession of the seal on a permanent basis when

Albear transferred to a Peoria store.” 391 Ill. App. 3d at 374.

Thus, the court opined, Kinko’s had no regard for whether Albear

understood his responsibilities and adhered to them. According to the

majority, “[t]his is negligence.” 391 Ill. App. 3d at 374.

The dissenting justice would have found that Kinko’s was not

liable on either the statutory claim or the common law negligent

training and supervision claim. Although the dissent agreed with the

majority that the common law standard of care was one of

“reasonableness,” the dissent opined that the Act establishes what is

reasonable. 391 Ill. App. 3d at 385 (O’Malley, P.J., dissenting). The

dissent criticized the majority and the trial court for relying on the

Model Notary Act, noting that the Illinois legislature has declined to

adopt the Model Notary Act into either current Illinois notary law or

the Act as in effect in 1995. The dissent opined that the scope of

Kinko’s duties can be defined only by the Act or its own voluntary

undertakings.

The dissent also found that Closen’s interpretation of the Act was

incorrect. According to the dissent, the phrase “identification

documents” in section 6–102 of the Act means only that

“identification can be ascertained from a variety of different

documents that various individuals may present, such as a driver’s

license, state identification, immigration documents, passport, etc.”

391 Ill. App. 3d at 386. Thus, the dissent concluded, Yamnitz’s

testimony that he trained Albear to require one form of photo

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identification demonstrates that Kinko’s properly trained Albear.

ANALYSIS

Illinois Notary Public Act

Several provisions of the Illinois Notary Public Act are relevant.5

Although we have already made some references to those provisions,

we now reproduce them in full.

Section 6–102 establishes the function and duty of a notary public.

“§ 6–102. Notarial Acts. (a) In taking an acknowledgment,

the notary public must determine, either from personal

knowledge or from satisfactory evidence, that the person

appearing before the notary and making the acknowledgment

is the person whose true signature is on the instrument.

(b) In taking a verification upon oath or affirmation, the

notary public must determine, either from personal knowledge

or from satisfactory evidence, that the person appearing before

the notary and making the verification is the person whose

true signature is on the statement verified.

(c) In witnessing or attesting a signature, the notary public

must determine, either from personal knowledge or from

satisfactory evidence, that the signature is that of the person

appearing before the notary and named therein.

(d) A notary public has satisfactory evidence that a person

is the person whose true signature is on a document if that

person:

(1) is personally known to the notary;

(2) is identified upon the oath or affirmation of a

credible witness personally known to the notary; or

(3) is identified on the basis of identification

documents.” 5 ILCS 312/6–102 (West 1996).

Section 7–101 establishes the liability of the notary: “Liability of

Notary and Surety. A notary public and the surety on the notary’s

5

The Act was substantially amended in 2008. Because the operative facts

of this case occurred in 1995 and 1996, we refer to and cite only the version

of the Act in effect at that time.

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bond are liable to the persons involved for all damages caused by the

notary’s official misconduct.” 5 ILCS 312/7–101 (West 1996).

The vicarious liability of the notary public’s employer is set forth

in section 7–102:

“§7–102. Liability of Employer of Notary. The employer

of a notary public is also liable to the persons involved for all

damages caused by the notary’s official misconduct, if:

(a) the notary public was acting within the scope of the

notary’s employment at the time the notary engaged in the

official misconduct; and

(b) the employer consented to the notary public’s official

misconduct.” 5 ILCS 312/7–102 (West 1996).

Section 7–104 defines “official misconduct” as it appears in the

above-quoted portions of the Act:

“§7–104. Official Misconduct Defined. The term ‘official

misconduct’ generally means the wrongful exercise of a power

or the wrongful performance of a duty and is fully defined in

Section 33–3 of the Criminal Code of 1961. The term

‘wrongful’ as used in the definition of official misconduct

means unauthorized, unlawful, abusive, negligent, reckless, or

injurious.” 5 ILCS 312/7–104 (West 1996).

Compliance with Supreme Court Rule 341

We first address the appellate court’s determination that Kinko’s

waived review of the common law claim by failing to appropriately

support its argument. In reaching that determination, the court briefly

reviewed Kinko’s arguments. It noted that Kinko’s argued the trial

court had erroneously expected Albear to be trained to a higher

standard than that set forth in the Act, supporting its argument with

cases “indicating violation of a statute may be a basis for a tort claim.”

As the court recognized, Kinko’s maintained that it could not be liable

for negligence in this case because its training was consistent with the

statute. With respect to the negligent-supervision claim, the court

opined that Kinko’s had cited authority “regarding an entirely different

type of tort, negligent hiring and retention of an unfit employee,”

referring to Kinko’s citation to Van Horne v. Muller, 185 Ill. 2d 299

(1999).

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Supreme Court Rule 341(h) sets out the requirements for

appellants’ briefs. The rule lists the sections of the brief that shall be

included, as well as requirements for each section. With respect to

arguments, the rule states that the briefs shall contain:

“Argument, which shall contain the contentions of the

appellant and the reasons therefor, with citation of the

authorities and the pages of the record relied on. Evidence

shall not be copied at length, but reference shall be made to

the pages of the record on appeal or abstract, if any, where

evidence may be found. Citation of numerous authorities in

support of the same point is not favored. Points not argued are

waived and shall not be raised in the reply brief, in oral

argument, or on petition for rehearing.” 210 Ill. 2d R.

341(h)(7).

Consistent with the plain language of the rule, this court has

repeatedly held that the failure to argue a point in the appellant’s

opening brief results in forfeiture of the issue. See, e.g., Elementary

School District 159 v. Schiller, 221 Ill. 2d 130, 143 n.2 (2006) (issue

forfeited where it was raised for the first time at oral argument);

Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 237 (2000) (affirmative

defense forfeited where it was not raised in brief). Both argument and

citation to relevant authority are required. An issue that is merely

listed or included in a vague allegation of error is not “argued” and

will not satisfy the requirements of the rule. See, e.g., People v.

Phillips, 215 Ill. 2d 554, 565 (2005) (issue forfeited where defendant

raised it but failed to make any argument or citation to relevant

authority); People v. Franklin, 167 Ill. 2d 1, 20 (1995) (issues

forfeited where defendant provided no argument to support claims of

error); People v. Guest, 166 Ill. 2d 381, 413-14 (1995) (one sentence

in brief indicating that defendant “incorporated” all claims made in

earlier proceedings not sufficient to satisfy Rule 341, resulting in

forfeiture of claims). Moreover, an argument that is developed beyond

mere list or vague allegation may be insufficient if it does not include

citations to authority. See, e.g., Dillon v. Evanston Hospital, 199 Ill.

2d 483, 493 (2002) (three-paragraph argument insufficient to satisfy

Rule 341 where argument did not include any citations to authority).

The appellate court has further held that even where the brief

includes both argument and citation, a party may nonetheless forfeit

review if the cited authority is irrelevant and does not represent a

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sincere attempt to comply with the rule. See, e.g., Britt v. Federal

Land Bank Ass’n of St. Louis, 153 Ill. App. 3d 605, 608 (1987) (“We

do not view the inclusion of citations to irrelevant authority scattered

throughout [the plaintiffs’] brief to constitute even an attempt to

comply with the rule”). In the present case, with respect to Kinko’s

argument on the negligence claims, the court found that “[t]he cited

case law has no bearing on the judge’s finding of negligence and does

not warrant further discussion.” Thus, the court concluded, Kinko’s

forfeited consideration of the argument. 391 Ill. App. 3d at 368.

Kinko’s brief to the appellate court contained more than eight

pages of argument on the common law claim and citations to 17 cases,

along with statutes and secondary authority. Kinko’s argued there, as

it does here, that the Act governs an employer’s duty to train and

supervise notary employees, citing cases in which this court and others

have discussed the role of statutes in negligence cases. See, e.g., First

Springfield Bank & Trust v. Galman, 188 Ill. 2d 252 (1999); Bier v.

Leanna Lakeside Property Ass’n, 305 Ill. App. 3d 45 (1999). As the

appellate court noted, most of Kinko’s citations are not directly on

point. Instead, the cited cases arise from violations of statutes, and

they generally discuss the use of statutory violations as evidence of

negligence. See, e.g., Calloway v. Kinkelaar, 168 Ill. 2d 312, 319

(1995) (“If the plaintiff is a member of the protected class and his or

her injury is of the type the statute was intended to protect against, the

plaintiff may recover upon establishing that the defendant’s violation

of the ordinance or statute proximately caused plaintiff’s injury”).

With respect to the negligent-supervision claim specifically,

Kinko’s relied on Van Horne, as noted above. In Van Horne, the

plaintiff alleged that the defendant radio station was vicariously liable

and directly liable for damages caused when a disc jockey made

defamatory statements about the plaintiff on air. Van Horne, 185 Ill.

2d at 303-04. The plaintiff alleged direct liability against the station for

defamation based on its publication of the defamatory statements, but

the plaintiff also alleged direct liability based on the station’s actions

as an employer. Under the heading “Negligent and Reckless Hiring,

Supervision, and Retention,” this court explained that “[c]ounts V

through VIII [of the plaintiff’s complaint] purport to allege claims for

negligent and reckless hiring and negligent and reckless supervision.”

Van Horne, 185 Ill. 2d at 308-09. Specifically, the court noted that the

plaintiff alleged “that the defendants had a duty to supervise their disc

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jockeys,” along with allegations of negligent hiring and retention. Van

Horne, 185 Ill. 2d at 310.

In discussion, however, this court focused solely on negligent

hiring and retention; the plaintiff’s claim of negligent supervision was

not separately discussed. Noting that “Illinois law recognizes a cause

of action against an employer for negligently hiring, or retaining in its

employment, an employee it knew, or should have known, was unfit

for the job so as to create a danger of harm to third persons,” the Van

Horne court went on to explain that liability “in this context” arises

only when the employee has a “particular unfitness” that gives rise to

a “particular danger of harm to third parties.” (Emphasis omitted.)

Van Horne, 185 Ill. 2d at 310, 313. It is this language that Kinko’s

cited in its brief to the appellate court. While the cited language may

be unpersuasive on the issues in this case, we disagree with the

appellate court’s conclusion that Van Horne has “no bearing.”

Thus, although we acknowledge that citation to completely

irrelevant authority may, in some cases, be so inadequate as to run

afoul of Rule 341(h)(7), the case at bar is not such a case. In our view,

citation to cases that are merely unpersuasive or inapposite, as the

appellate court apparently found Kinko’s cited authorities to be, is not

tantamount to failing to cite relevant authority altogether. We

therefore find that Kinko’s has not forfeited review of the common

law negligence claim, and we will review it on its merits.

We note that although Rule 341(h)(7) applies on its face only to

appellants’ briefs before the appellate court, it also applies to

appellees’ briefs through Rule 341(i) and to briefs before this court

through Rule 315 (210 Ill. 2d R. 315). Thus, while Rule 318(a)

provides that an appellee may seek and obtain any relief warranted by

the record on appeal without filing a separate appeal or petition for

leave to appeal (155 Ill. 2d R. 318(a)), Rule 341 nonetheless requires

that the appellee provide adequate argument and citation to authority

for any such relief.

In his appellee’s brief to this court, plaintiff Vancura includes a

section entitled “Additional Issue Presented for Review,” which reads,

in total, “Whether the First District properly vacated the trial court’s

ruling that Kinko’s impliedly consented to its employee’s official

misconduct in notarizing the forged Assignment of Mortgage.”

Similarly, plaintiff’s “Conclusion” section includes the sentence, “The

-15-

First District should not have vacated the trial court’s finding that

Kinko’s was liable for Albear’s official misconduct.” Aside from these

two sentences, however, plaintiff makes no reference to the statutory

liability claim and devotes no portion of his argument to supporting

that claim. In contrast to the sections of Kinko’s brief discussed

above, plaintiff’s brief contains no argument and no citations to

authority on this point. As discussed above, a claim of error that is

merely listed but not “argued” will not satisfy the requirements of Rule

341. See, e.g., Phillips, 215 Ill. 2d at 565. We find that plaintiff has

failed to comply with our rules, and he has therefore forfeited review

of the statutory liability count. Consequently, with respect to the

statutory claim, we affirm the appellate court and reverse the trial

court’s judgment against Kinko’s.

Standard of Review

Plaintiff’s remaining claim against Kinko’s alleges that Kinko’s

“negligently trained and supervised and failed to properly control its

employee, Albear, resulting in the improper notarization of the

Assignment of Mortgage.” To succeed in a claim for negligence, a

plaintiff must establish the existence of a duty, a breach of the duty,

and an injury to the plaintiff that was proximately caused by the

breach. Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210, 228

(2000). Whether a duty exists in a particular case is a question of law,

which we review de novo. Happel v. Wal-Mart Stores, Inc., 199 Ill.

2d 179, 186 (2002); Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280

(2007). Breach of duty and causation are generally findings of fact,

which we will reject only when they are against the manifest weight of

the evidence. Jones v. Chicago & Northwestern Transportation Co.,

206 Ill. App. 3d 136, 139 (1990); Corral v. Mervis Industries, Inc.,

217 Ill. 2d 144, 151-52 (2005). A finding is against the manifest

weight of the evidence when an opposite conclusion is apparent or

when the findings appear to be unreasonable, arbitrary, or not based

on the evidence. Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002).

Although plaintiff formulated his common law claim as a single

claim of negligent supervision and negligent training, we note that it

in fact raises two distinct theories of negligence on the part of

Kinko’s: liability for negligent supervision and liability for negligent

training. We evaluate each in turn.

-16-

Negligent Supervision

The central question we must resolve is whether, in light of

general common law principles and the statutory scheme established

by the Act, Kinko’s can be liable for negligent supervision of Albear.

Kinko’s, as appellant, begins its argument by conceding that the

statutory remedy provided in section 7–102 of the Act does not

preempt a common law cause of action for negligent supervision.

Instead, Kinko’s argues, the Act fixes the measure of the common law

duty owed by employers of notaries. Thus, according to Kinko’s, an

employer cannot be liable on the basis of a duty found outside the Act.

Plaintiff responds that although the Act establishes and fixes the duties

of a notary public, the statute does not “preempt” a common law

cause of action based on the employer’s own negligence. Thus,

plaintiff maintains, he may assert a common law claim that is

unaffected by the statute. Plaintiff relies primarily on general

assertions of negligence on the part of Kinko’s and the testimony of

Professor Closen, described above.

Because plaintiff asserts a common law claim, we note that at

common law an employee’s malfeasance may generally create liability

for his or her employer in two ways: vicarious liability for the acts of

the employee, or direct liability for the employer’s own acts. Under

the theory of vicarious liability, or respondeat superior, an employer

can be liable for the torts of an employee that are committed within

the scope of the employment. Wright v. City of Danville, 174 Ill. 2d

391, 405 (1996); Pyne v. Witmer, 129 Ill. 2d 351, 359 (1989). The

employee’s liability is imputed to the employer; that is, where the

employee is acting within the scope of the employment, the plaintiff

generally need not establish any malfeasance on the part of the

employer. See Darner v. Colby, 375 Ill. 558, 560 (1941).

In contrast, a claim of direct negligence, such as the plaintiff’s

claim in this case, alleges that the employer was itself negligent. As in

any claim for negligence, a plaintiff must establish the existence of a

duty, a breach of the duty, and an injury to the plaintiff that was

proximately caused by the breach. Hills, 195 Ill. 2d at 228. In direct

negligence, the plaintiff must prove that the employer’s breach–not

simply the employee’s malfeasance–was a proximate cause of the

plaintiff’s injury. In a claim of negligent supervision such as the one

plaintiff has pleaded in this case, where there is no assertion of a

particular duty to supervise, the duty upon which plaintiff relies must

-17-

be based on the general relationship between employer and employee.

The scope of that duty in this case, however, is the heart of the

dispute between the parties.

In support of its argument that the Act alone fixes the scope of the

employer’s legal duty, Kinko’s cites several cases in which Illinois

courts have discussed the relationship between statutes designed to

protect life or property and negligence actions. See Noyola v. Board

of Education of the City of Chicago, 179 Ill. 2d 121, 130 (1997);

Dunn v. Baltimore & Ohio R.R. Co., 127 Ill. 2d 350, 367 (1989);

Price v. Hickory Point Bank & Trust, 362 Ill. App. 3d 1211, 1216-17

(2006). Kinko’s relies primarily on Noyola, citing that case’s assertion

that “statutes and ordinances designed to protect human life or

property establish the standard of conduct required of a reasonable

person. [Citation.] In other words, they fix the measure of legal duty.”

Noyola, 179 Ill. 2d at 130. According to Kinko’s, the imposition of a

standard of care that is higher than that prescribed by the statute

violates the principle expressed in Noyola and similar cases. We

disagree.

In Noyola, this court considered whether section

18–8(A)(5)(i)(1)(a) of the School Code, which set forth the manner

in which certain school funds could be expended, created an implied

cause of action against the defendant school board for failing to

comply with the statute. Noyola, 179 Ill. 2d at 124-28. The court

observed that in the state courts of this country,

“judges have come to identify the implied statutory action with

modern tort actions based on the law of the reasonable person.

Their view is that conduct violating legislated rules is

negligent, and if a statutory violation proximately causes an

injury of the kind the legislature had in mind when it enacted

the statute, the offending party is civilly liable for that injury.”

Noyola, 179 Ill. 2d at 129.

“In Illinois,” the court noted, “this approach is reflected in those cases

holding that the violation of a statute or ordinance designed to protect

human life or property is prima facie evidence of negligence.” Noyola,

179 Ill. 2d at 129. Thus, although Noyola went on to explain that

“statutes and ordinances designed to protect human life or property

establish the standard of conduct required of a reasonable person,” the

court meant only what it asserted in the remainder of the quoted

-18-

paragraph: “Where a defendant violates one of these statutes or

ordinances, a plaintiff who belongs to the class intended to be

protected by that statute or ordinance and whose injury is of the type

the statute or ordinance was intended to protect against may recover

upon establishing that the defendant’s violation proximately caused

plaintiff’s injury.” (Emphasis added.) Noyola, 179 Ill. 2d at 130.

Kinko’s reliance on Noyola for the inverse proposition–that is, that

compliance with a statute precludes a finding of negligence–is

misplaced. See, e.g., Indianapolis & St. Louis R.R. Co. v. Stables, 62

Ill. 313, 317-18 (1872) (“Because the statute has imposed specified

duties, it does not follow that the employees of [railroads] are released

from the dictates of humanity or the common legal duty of regarding

the rights of others”); Christou v. Arlington Park-Washington Park

Race Tracks Corp., 104 Ill. App. 3d 257, 261 (1982) (“Compliance

with statutes and safety regulations is not conclusive evidence on the

question of negligence”); Belvidere National Bank & Trust Co. v.

Leisher, 83 Ill. App. 3d 179, 186 (1980) (“Although violation of

statutes, ordinances or codes is conclusive to show defendant’s breach

of duty (leaving only the question of proximate cause), compliance

with codes and safety regulations is not conclusive evidence on the

question of negligence”).

Clearly, then, the mere existence of a statute establishing legal

duties for employers of notaries does not foreclose the possibility of

a common law negligence action based on an extra-statutory duty of

care. However, the legislature may intentionally foreclose or limit such

an action through the statute by altering the common law. “A statute

will be construed as changing the common law only to the extent the

terms thereof warrant, or as necessarily implied from what is

expressed.” Cedar Park Cemetery Ass’n v. Cooper, 408 Ill. 79, 82

(1951). To determine whether the legislature has modified the

common law liability of employers of notaries, we first examine the

statute.

Section 7–102 establishes a cause of action against the employer

of a notary for an employee’s official misconduct where: (1) the

notary public was acting within the scope of his employment, and (2)

the employer consented to the notary’s official misconduct. The

section is titled “Liability of Employer of Notary.” 5 ILCS 312/7–102

(West 1996). With respect to the second prong of the statute, the

appellate court concluded that for an employer to be found to have

-19-

“consented” to a notary’s official misconduct, there must be a

showing that the employer had some knowledge of the notary’s

misconduct. We agree.

Where the language of a statute is clear, it must be given its plain

and ordinary meaning. King v. First Capital Financial Services Corp.,

215 Ill. 2d 1, 26 (2005). Here, the statute provides that an employer

may be found liable for the acts of a notary only where “the employer

consented to the notary public’s official misconduct.” 5 ILCS

312/7–102(b) (West 1996). The statute does not define “consent,” but

Black’s Law Dictionary defines the term in relevant part as

“[a]greement, approval, or permission as to some act or purpose.”

Black’s Law Dictionary 323 (8th ed. 2009). Whatever the proof

required to establish “consent” on the part of an employer, it is clear

that an employer cannot “[a]gree[ ], approv[e], or [grant] permission”

for an act or purpose of which the employer has no knowledge.

The legislature therefore intended for the employer of a notary to

be liable where the employer has some minimum threshold of

knowledge of the notary public’s conduct. This represents a clear

conflict with common law claims of either respondeat superior or

direct negligence. A common law vicarious liability claim typically

requires no proof of the employer’s knowledge, consent, or

culpability. See Alms v. Baum, 343 Ill. App. 3d 67, 74 (2003) (An

action for respondeat superior, “is brought against a master based on

allegedly negligent acts of the servant[,] and no independent wrong is

charged on behalf of the master”). Similarly, in a direct liability claim,

the plaintiff may allege that the employer merely should have known

of the employee’s malfeasance. We presume that the legislature was

familiar with the common law requirements. See People v. Hickman,

163 Ill. 2d 250, 262 (1994) (“it must be presumed that the legislature

acted with knowledge of the prevailing case law”). We therefore hold

that section 7–102 was intended to modify common law liability for

employers of notary publics. Plaintiffs who raise a common law claim

against the employer of a notary public must show, at a minimum, that

the employer had some knowledge of the notary public’s misconduct.

In other words, the minimum duty of an employer of notaries at

common law extends only as far as the duty established by section

7–102 of the Act; the employer has a duty to not consent to the

official misconduct of its employees.

Our conclusion today is consistent with the Act as a whole. The

-20-

Illinois Notary Public Act was enacted “to simplify, clarify, and

modernize the law governing notaries public” and to “promote, serve,

and protect the public interest.” 5 ILCS 312/1–102(b)(1) (West

1996). The office of notary public, however, extends well into

common law history. Black’s Law Dictionary (9th ed. 2009), citing J.

Proffatt, The Office and Duties of Notaries Public §1, at 1 (2d ed.

1892) (“A notary public is an officer long known to the civil law”).

Under the Act and common law, the notary public “serves as a public

witness of facts transacted by private parties.” Black’s Law Dictionary

(9th ed. 2009), quoting S. Litvinoff, 5 Louisiana Civil Law Treatise:

The Law of Obligations 296-97 (2d ed. 2001). Thus, the notary public

gives his or her personal seal and signature when completing a notarial

act, and in so doing he or she assumes personal liability for the

accuracy of his or her notarization. 5 ILCS 312/3–101, 3–102 (West

1996) (setting forth the requirements for the notary’s official seal and

signature); 5 ILCS 312/6–105 (West 1996) (setting forth the

requirements for certificates of notarial acts); 5 ILCS 312/7–101

(West 1996) (“A notary public and the surety on the notary’s bond are

liable to the persons involved for all damages caused by the notary’s

official misconduct”). In this way, the Act codifies a long tradition of

imposing burdens and liabilities on a notary public that are personal to

the notary, rather than shared with his or her employer. Thus, under

the Act, when a notary public wrongfully or negligently exercises the

powers of the office, it is the notary alone who becomes liable. Under

section 7–102, the employer is liable only if the employer “consented

to” the misconduct of the notary; that is, if the employer committed

some malfeasance of its own.

Applying these holdings to the present case, plaintiff does not

argue that Kinko’s had any knowledge of Albear’s misconduct, nor

did the evidence at trial reveal any such knowledge. On the contrary,

the evidence established that Kinko’s never received any complaints

about Albear’s conduct as a notary. Plaintiff has claimed only a

general negligence in failing to discover defects in Albear’s

performance. Even if we assume that such allegations establish a cause

of action for negligent supervision of an employee generally, section

7–102 makes clear the legislature’s intent to require some knowledge

on the part of the employer as a prerequisite to imposing liability.

Therefore, the judgment of the circuit court imposing liability against

Kinko’s for negligent supervision must be reversed.

-21-

Negligent Training

Plaintiff also alleges that Kinko’s was negligent in its training of

Albear. Initially, we note that plaintiff has not argued that Kinko’s

breached a generalized duty to provide training. Instead, plaintiff has

alleged that Kinko’s was negligent because the training Kinko’s did

provide was insufficient or defective in several enumerated ways. In

other words, although plaintiff acknowledges that Kinko’s provided

training, it argues that Kinko’s did so negligently. Kinko’s responds

that its liability for training should be limited in light of the voluntary

undertaking doctrine, relying on Frye v. Medicare-Glaser Corp., 153

Ill. 2d 26 (1992).

In Frye, this court addressed the question of whether a pharmacist

who was under no duty to attach warning stickers to dispensed

medication could be liable for negligence when she undertook to

attach stickers. Frye, 153 Ill. 2d at 28-29. The plaintiff alleged that the

pharmacist was negligent because she attached a sticker indicating that

the medication may cause drowsiness, but she did not attach a sticker

indicating that the medication should not be taken with alcohol,

although she knew that drinking alcohol with the medication was

dangerous. Frye, 153 Ill. 2d at 29. This court noted that, although the

pharmacist was initially under no duty to warn patients, “[p]ursuant

to the voluntary undertaking theory of liability, one who gratuitously

or for consideration renders services to another is subject to liability

for bodily harm caused to the other by one’s failure to exercise due

care or ‘ “such competence and skill as [one] possesses.” ’ ” Frye, 153

Ill. 2d at 32, quoting Cross v. Wells Fargo Alarm Services, 82 Ill. 2d

313, 317 (1980); Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86

(1964). The court also applied section 323 of the Restatement

(Second) of Torts, which provides:

Ҥ323. Negligent Performance of Undertaking to Render

Services

One who undertakes, gratuitously or for consideration, to

render services to another which he should recognize as

necessary for the protection of the other’s person or things, is

subject to liability to the other for physical harm resulting from

his failure to exercise reasonable care to perform his

undertaking, if

(a) his failure to exercise such care increases the risk of

-22-

such harm, or

(b) the harm is suffered because of the other’s reliance

upon the undertaking.” Restatement (Second) of Torts §323

(1965).

Kinko’s argues that, because it was under no duty to train its

notary public employees, the training program it provided should be

subject to the provisions of Frye and section 323. We disagree for

several reasons. First, both the Restatement and Frye contemplate the

liability of a service provider for the provision of services. In our view,

the training of an employee cannot reasonably be viewed as the

employer’s “render[ing] services” to an employee. Moreover, section

323 and our precedents explicitly limit themselves to situations in

which the plaintiff has suffered “physical” or “bodily” harm. In the

present case, plaintiff has suffered only economic damages. Finally,

section 323 provides for liability of the service provider in favor of the

person to whom the services were negligently rendered. Here, even if

we could view Kinko’s training as providing a service “gratuitously or

for consideration,” that service was clearly not provided to plaintiff.6

We therefore reject Kinko’s argument that plaintiff’s negligent training

claim is controlled by Frye or section 323 of the Restatement.

Instead, whether and to what extent Kinko’s had a duty to train its

notary employees is best analyzed under principles generally applicable

to negligence cases. As we have stated, whether a duty exists in a

particular case is a question of law, which we review de novo. Happel

v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186 (2002), quoting Ward

v. K mart Corp., 136 Ill. 2d 132, 140 (1990); Forsythe v. Clark USA,

Inc., 224 Ill. 2d 274, 280 (2007). “The touchstone of the duty analysis

is to ask whether the plaintiff and defendant stood in such a

relationship to one another that the law imposes on the defendant an

obligation of reasonable conduct for the benefit of the plaintiff.”

Krywin v. Chicago Transit Authority, No. 108888, slip op. at 8 (July

6

Section 324A of the Restatement, which this court applied in Pippin v.

Chicago Housing Authority, 78 Ill. 2d 204, 210-11 (1979), does provide for

limited liability to third persons based on the negligent performance of a

service or undertaking. However, like section 323, section 324A provides

liability only where the provision of services results in “physical harm,” and

Kinko’s has not claimed that section 324A applies.

-23-

15, 2010). The inquiry involves four factors: (1) the reasonable

foreseeability of the injury; (2) the likelihood of the injury; (3) the

magnitude of the burden of guarding against the injury; and (4) the

consequences of placing the burden on the defendant. Marshall v.

Burger King Corp., 222 Ill. 2d 422, 436-37 (2006).

Initially, we note that the Act imposes no duty on the employer of

a notary public, except to refrain from consenting to the notary’s

misconduct, as discussed above. Consistent with the Act’s overall

emphasis on the personal responsibility of the notary, the notary’s

employer is not charged with providing training, supplies, or any other

assistance to the notary. Indeed, the notary is not required to undergo

any special training before or during his or her tenure as a notary.

Moreover, plaintiff has not asked us to impose a general duty on

employers to train notary employees; as noted above, plaintiff has

alleged that Kinko’s training was negligent, not that Kinko’s breached

a general duty to train. We therefore express no opinion on whether

a general duty to train exists, and we move instead to defining the

scope of the employer’s duty once training has been provided.

Plaintiff urges us to adopt a duty would require employers to train

notary employees in the best practices of notaries generally, as

expressed in Closen’s testimony. Closen based his testimony almost

entirely on the Model Notary Acts of 1984 and 2002, opining that

Kinko’s was negligent for failing to teach Albear about several

practices required under the Model Acts but not mentioned in the

Illinois Notary Public Act, including maintaining a logbook and

destroying the notary seal when he resigned his commission.

However, the legislature of Illinois has never adopted the Model

Notary Act. Though it could have done so when it considered and

revised the Act in both 1986 and 2008, it did not enact any of the

provisions of the Model Acts into law. The stated purpose of the Act

includes “to simplify, clarify, and modernize the law governing

notaries public,” and the legislature may well have declined some of

the more stringent requirements, including those in Closen’s

testimony, in the interests of simplicity and clarity. 5 ILCS

312/1–102(b) (West 1996). We note also that the Act’s reduced

requirements makes it easier to obtain a notarization, thus allowing

more of the public access to notary services. If we were to impose a

duty on employers who provide training that required such training to

teach proposed and model standards rather than the standards selected

-24-

by our legislature and expressed in the Act, we would be undermining

the legislature’s careful determination of what should be required of

a notary. This we will not do.

Instead, we hold that where an employer provides training to

notary public employees, it has a duty to ensure that its training

conforms to the provisions adopted by the Illinois legislature in the

Act. This holding is consistent with the four factors we have

enumerated: (1) the reasonable foreseeability of the injury; (2) the

likelihood of the injury; (3) the magnitude of the burden of guarding

against the injury; and (4) the consequences of placing the burden on

the defendant. First, where an employer trains notaries as part of a

program to offer that notary’s services to its customers, it is highly

foreseeable that errors in the training program could lead to injuries

such as those that occurred in this case. With respect to the second

factor, where the training is incorrect or misleading, the likelihood of

a resultant injury is also relatively high. Notary publics are routinely

asked to witness instruments of great legal and financial significance,

including loan documents, mortgages, and property transactions. The

potential for fraud in such transactions is great, and parties to the

transactions rely on the proper performance of the notary. If the

employer provides incorrect or inadequate instruction, the potential

for injury is present.

Furthermore, where the employer has already undertaken to

provide training, the burden imposed on the employer by requiring

that the training comply with the Act is minimal. The Act should be

the starting point of any training program for notary publics in Illinois,

and we expect that any employer who seeks to train Illinois notaries

would attempt to conform the training to the Act. The last factor, the

consequences of placing this burden on employers of notaries, is

similarly not a concern. Although some employers may decide not to

provide training programs to their notary employees, notary publics

are not required to undergo any training under the Act.

Having determined that once Kinko’s undertook training, it had a

duty to train its employees consistently with the Act, we next evaluate

plaintiff’s claim that Kinko’s breached its duty. Breach of duty is a

finding of fact, which we will reject only when it is against the

manifest weight of the evidence. Corral v. Mervis Industries, Inc.,

217 Ill. 2d 144, 151-52 (2005). A finding is against the manifest

weight of the evidence when an opposite conclusion is apparent or

-25-

when the findings appear to be unreasonable, arbitrary, or not based

on the evidence. Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002).

The trial court found that “Kinko’s failed to meet the necessary

standard of care.” However, it did not directly explain the factual

findings that led it to this conclusion. Instead, the court reviewed

several portions of Professor Closen’s testimony, noting that the

testimony was “not impeached” and that Kinko’s offered no expert

witness of its own. The court specified several ways in which Closen

opined that Kinko’s failed to meet the standard of care: the instructor

of the notary training program, Yamnitz, “was not a notary at the time

he trained Albear and had never been a notary”; Yamnitz did not teach

Albear “that information regarding notarizations was to be kept in a

journal”; Yamnitz did not teach notaries about “steps to take to secure

the notary seals and journal”; Yamnitz did not instruct Kinko’s

notaries “on the need to preserve the notary seal and logbook”; and

Yamnitz did not properly train Albear about the procedures for

“identifying document signers.”7

First, Kinko’s was not under a duty to provide notary training

classes taught exclusively by notaries. As we have stated, all that was

required of Kinko’s training program was that it teach notaries in a

manner consistent with the Act. The credentials of the trainer are

therefore irrelevant, so long as he or she teaches the class in

conformity with this duty.

With respect to the journal, we note that both Albear and Yamnitz

testified that Albear was taught to maintain a journal of his

notarizations, and Professor Closen referred to their testimony on the

matter when he opined that the journal Albear kept was insufficient.

Thus, the court’s finding that Kinko’s breached its duty by failing to

teach Albear to keep a journal is against the manifest weight of the

evidence. Even if it were not, however, the Act did not require

notaries to maintain a journal or logbook of any kind in 1995.

Therefore Kinko’s was under no duty to train Albear to keep one.

7

The court also found that Kinko’s managers were not trained “in the

responsibilities of notaries.” Although this is framed in terms of training,

plaintiff’s argument was that the lack of managerial training was a factor in

the negligent supervision of Albear. We therefore need not consider that

finding here.

-26-

Similarly, Kinko’s was under no duty to train its notary employees

to secure or preserve the logbook. With respect to the security and

preservation of the seal, the Act contains no requirements about

either. Although section 7–107 of the Act makes it a misdemeanor to

unlawfully possess a notary’s seal, the Act makes no command,

specific or general, about the need to secure the seal. The Act also

contains no requirement that the seal of a notary who resigns his

commission be preserved or destroyed, as Closen suggested was

required.

Finally, the trial court also found that Kinko’s breached its duty

because Yamnitz did not properly train Albear about “identifying

document signers.” Although Professor Closen found several faults

with Albear’s identification process, the court repeated just one such

deficiency in its summary of Closen’s testimony: “Albear did not

require photo identification from a document signer.”

Where the language of a statute is clear, it must be given its plain

and ordinary meaning. King v. First Capital Financial Services Corp.,

215 Ill. 2d 1, 26 (2005). In addition, the statute “should be read as a

whole with all relevant parts considered.” Kraft, Inc. v. Edgar, 138 Ill.

2d 178, 189 (1990). As we have already discussed, the notary public

gives his or her personal seal and signature when completing a notarial

act, and in so doing he or she assumes personal liability for the

accuracy of his or her notarization. 5 ILCS 312/3–101, 3–102 (West

1996) (setting forth the requirements for the notary’s official seal and

signature); 5 ILCS 312/6–105 (West 1996) (setting forth the

requirements for certificates of notarial acts); 5 ILCS 312/7–101

(West 1996) (“A notary public and the surety on the notary’s bond are

liable to the persons involved for all damages caused by the notary’s

official misconduct”).

It is in this context that the Act provides that a notary must

determine, “either from personal knowledge or satisfactory evidence,”

that the person seeking notarization is the person whose true signature

is on the document. “Satisfactory evidence” is generally defined as

“[e]vidence that is sufficient to satisfy an unprejudiced mind seeking

the truth.” Black’s Law Dictionary 639 (9th ed. 2009). Thus, under

the Act a notary public, whose inherent function is to serve as an

unprejudiced witness, must satisfy himself of the truth of a signer’s

identity. The specific manner in which the notary should do so is left

to the notary, but as noted above, the Act establishes that a notary

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who does so in a negligent or reckless manner has committed “official

misconduct” and is liable for any damages so caused. 5 ILCS

312/7–101 (West 1996).

Closen cited the Model Notary Act of 1984 as establishing that a

photograph was required, and the appellate court accepted this

assertion, noting that Illinois courts have occasionally turned to such

persuasive authority to define a statutory term. See Lohr v. Havens,

377 Ill. App. 3d 233 (2007); Hasemann v. White, 177 Ill. 2d 414

(1997). Thus, the appellate court indicated that reading in the

requirements of the Model Notary Act was appropriate to help define

“satisfactory evidence.” In our view, however, adopting the Model

Notary Act’s approach in this manner would not merely define

“satisfactory evidence,” a term that is clear as it is used in the Act, but

would instead supply additional requirements not indicated by the

statute’s plain language. Where the Act did not specify that only

photographic identification could provide “satisfactory evidence” of

identity, we decline to read in such a requirement.

We therefore find that under the 1991 Illinois Notary Public Act,

Albear was not required to obtain photographic identification to have

“satisfactory evidence” of a person’s identity, and the trial court’s

reliance on Closen’s testimony to the contrary was incorrect as a

matter of law. Instead, the Act required Albear to satisfy himself of

the signer’s identity in a nonnegligent manner, either by personal

knowledge or on the basis of “identification documents.” As a result,

Kinko’s was not under a duty to teach its notary employees that a

photo identification was required; its duty was simply to teach notaries

that they could use identification documents to fulfill their statutory

obligation to receive “satisfactory evidence” of identity. The evidence

clearly establishes that they did so.

Yamnitz testified that he instructed his notary students to look for

a photo, saying:

“Typically what I told my students or my participants was to

ask for a state ID, driver’s license, or some type of ID that had

a picture, a description, and the signature on it so that they

could use a picture to verify, use a description to more or less

verify height and weight, and then be able to compare the

signature.”

Although Albear testified that he was taught a photograph was not

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required, he nonetheless corroborated Yamnitz’s claim that he was

taught to ask for identification. He testified, “I ask for identification.

The majority of the times I ask people for a driver’s license. If at that

time there were driver’s licenses with photos on it, that is what I

received. If not, then I received other identification.” Albear’s

testimony was corroborated by Boatwright, who testified that on

December 20, 1995, when he approached the counter for the

notarization of his signature, Albear asked him to show a driver’s

license.

Albear also testified that Kinko’s trained him to make sure the

person whose signature he was notarizing was the person appearing

before him. When asked “So you wouldn’t notarize a signature unless

that person was physically in your presence?” Albear responded,

“That is the way we were taught.” Moreover, although he

acknowledged that the Act permitted him to personally identify a

signer or to allow a person known to him to swear or affirm an

identification, he testified that he always asked for identification

because he felt more comfortable that way. He also testified that he

asked all of his customers to “swear or affirm” that they were who

they claimed to be, because that was his “preference.”

Closen also expressed concerns about one answer Albear gave in

which he stated that his job was merely to “verify [a] signature” based

on the identification provided, not to determine that the person

providing the identification was the person whose name appeared on

the identification. After positing a hypothetical situation in which

counsel appeared before Albear and provided a social security card for

identification, counsel asked, “How would you know that I am

actually Richard Hirsh?” and Albear responded, “Well, that is not my

job. My job is to verify your signature based on what I have in front

of me.” Closen criticized this answer, noting that Albear’s focus on

signature rather than identification was inappropriate. However, in

Albear’s next answer, he clarified his statement, saying, “Well, my job

was to receive identification and verify based on the signature and the

signature on the identification that it was the person they said they

were.”

The evidence at trial therefore supports Kinko’s claim that it

fulfilled its duty to ensure that its training program complied with the

requirements of the Act. To the extent that the trial court found that

Kinko’s breached its duty, we conclude that such a finding is against

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the manifest weight of the evidence. Thus, the trial court’s finding of

liability against Kinko’s for negligent training is reversed.

CONCLUSION

Based on the foregoing, we find that the trial court’s

determination that Kinko’s was liable on the basis of negligent

supervision and training is against the manifest weight of the evidence.

With respect to the statutory liability claim, we find that plaintiff has

forfeited review of the appellate court’s judgment. Thus, we affirm in

part and reverse in part the judgment of the appellate court, reverse

the judgment of the circuit court against Kinko’s in its entirety and

remand to the circuit court with directions to enter judgment in favor

of Kinko’s on both counts.

Appellate court judgment affirmed in part

and reversed in part;

circuit court judgment reversed;

cause remanded with directions.

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