author: JUSTICE O’CONNOR

text:
    STEPHEN CHAREAS, Plaintiff-Appellant, v. TOWNSHIP HIGH SCHOOL DISTRICT NO. 214, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—3403
    Opinion filed March 12, 1990.

      Ialongo & Meyer, of Chicago, for appellant.
    Kralovec, Marquard, Doyle & Gibbons, of Chicago (Nancy Jo Arnold, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from the entry of a summary judgment in favor of the defendant, Township High School District No. 214, on the basis that it had no duty to warn of an obvious danger. We affirm.

The plaintiff, Steven Chareas, was hit in the eye by a tennis ball while he and his father were standing inside the fence of a tennis court watching a match. The match was being held at a high school operated by the defendant, Township High School District No. 214 (the District). Plaintiff filed suit against the District for his injuries, alleging that the District was negligent in failing to provide a safe viewing area for spectators, placing plaintiff in an area of danger, and failing to warn plaintiff of a dangerous condition. Summary judgment initially was granted for defendant on the basis that under the School Code (Ill. Rev. Stat. 1987, ch. 122, pars. 24—24, 34—84a), defendant was immune from suits for negligence brought by its students because of its in loco parentis relationship to its students.

That order was appealed, and this court reversed (Chareas v. Township High School District No. 214 (1987), 163 Ill. App. 3d 1154 (unpublished order under Supreme Court Rule 23)), holding that the immunity provision of the School Code was inapplicable as the school district was not acting in loco parentis where the plaintiff’s father had been present. Thereafter, upon consideration of the other grounds on which summary judgment had been sought, the trial court determined that summary judgment was nonetheless appropriate as the defendant owed no duty to a plaintiff who was sufficiently mature to recognize obvious dangers and who had voluntarily exposed himself to an obvious danger. Plaintiff now brings this appeal.

The plaintiff contends that the trial court erred in granting summary judgment on the grounds that plaintiff had voluntarily exposed himself to an open and obvious danger. He maintains that it is not negligent per se to go into a dangerous area and points out that under section 343A of the Restatement (Second) of Torts, a duty may exist despite the obviousness of the danger. Defendant’s position is that given the open and obvious nature of the danger posed by standing- inside an enclosed area where multiple tennis -matches are taking place, as a matter of law, the plaintiff in the exercise of due care would have been able to appreciate the danger and thus defendant had no duty to prevent him from entering the area. We agree.

Summary judgment should be granted only where the pleadings, depositions, admissions and affidavits reflect that no genuine issue of material fact exists and therefore the moving party is entitled to judgment as a matter of law. (Elliott v. Chicago Title Insurance Co. (1984), 123 Ill. App. 3d 226, 231, 426 N.E.2d 640.) Moreover, it should be allowed only where the right of the moving party is clear and free from doubt. (Ainsworth Corp. v. Cenco, Inc. (1982), 107 Ill. App. 3d 435, 438, 437 N.E.2d 817.) While the degree of care exercised by the plaintiff and the obviousness of the danger are ordinarily questions of fact, questions of fact.-may be decided as a matter of law where reasonable men could not disagree on the conclusions to which the facts lead. (Nally v. City of Chicago (1989), 190 Ill. App. 3d 218, 221, 546 N.E.2d 630.) On the facts here, we find that, as a matter of law, defendant had no duty to warn or protect plaintiff from an open and obvious danger voluntarily encountered.

Initially we note that the deposition testimony of both plaintiff and his father negates the factual allegations of the complaint. Plaintiff had alleged in his complaint that there were no seats designated for spectators within the court area, that he had been directed by school district employees to watch the match from inside the fence surrounding the courts, and that as he was struck by a ball while in a place he had been directed to be, the school district had placed him in an area of danger.

Deposition testimony was to the contrary. Plaintiff testified that there were bleachers for spectators and that no one gave him permission to go inside the fence to watch the match. He acknowledged that it was his father who suggested they observe the match from inside the fence. Plaintiff’s father’s deposition was similar and affirmed that while both plaintiff and his father believed the seating area was full, they voluntarily, and without being directed to do so, entered the enclosed playing area. The deposition testimony establishes that plaintiff voluntarily placed himself in a position of danger and thus would be unable to prove at trial that he was placed in an area of danger by the defendant.

The issue of whether the school district had a duty to protect plaintiff from the obvious dangers of standing inside of a tennis court during a match is answered by Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177. Corcoran establishes that the liability of the party in possession of premises upon which a minor is injured is determined by the rules of ordinary negligence. Where the minor is an invitee, as was the 17-year-old plaintiff here, the duty of the land occupier is to maintain the premises in a reasonably safe condition and to warn of dangerous, nonobvious conditions. (Corcoran, 73 Ill. 2d at 329.) Where the danger is obvious, the plaintiff cannot recover for his injuries. Cope v. Doe (1984), 102 Ill. 2d 278, 286, 464 N.E.2d 1023.

While plaintiff is correct in pointing out that there are certain circumstances in which a possessor of land has a duty to warn or protect an invitee even where a danger is open and obvious, the cases that have so held are distinguishable from the matter before us here. (See, e.g., Jakubiec v. Cities Service Co. (7th Cir. 1988), 844 F.2d 470.) In Jakubiec, the court held that it could not be said as a matter of law that a plaintiff acted unreasonably in encountering danger where the plaintiff would have had to refuse to perform assigned job duties in order to avoid the danger. (Jakubiec, 844 F.2d at 472.) Here, to the contrary, plaintiff chose to encounter an obvious danger, not because he was required to do so, but solely for personal and recreational reasons. While a possessor of land might be expected to anticipate that a reasonable person would choose to encounter a risk in order to perform tasks assigned by an employer, even in the context of employment, there may be no duty to warn in' circumstances where the enormity of the risk is so great that a reasonable person would clearly take precautions to protect his own safety. Nally v. City of Chicago (1989), 190 Ill. App. 3d 218, 223, 546 N.E.2d 630.

This court has consistently refused to hold landowners responsible for protecting people from obvious risks on their property. (See, e.g., Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 485, 507 N.E.2d 19 (slide set on asphalt is obvious danger requiring no duty to warn); Keller v. Mols (1984), 129 Ill. App. 3d 208, 211, 472 N.E.2d 161 (no duty to warn 14-year-old of inherent risks of playing floor hockey).) Consistent with the above rulings, we hold that summary judgment was properly granted here as under Illinois law, the defendant school district had no duty to protect plaintiff from the obvious danger posed by watching a tennis match from within a protective fence.

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

Affirmed.

CAMPBELL and MANNING, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE DiVITO

license: Public Domain

text:
    WILLIAMS AND MONTGOMERY, LTD., Petitioner-Appellant, v. DONALD E. STELLATO et al., Respondents-Appellees.
    First District (2nd Division)
    No. 1—89—2069
    Opinion filed March 13, 1990.

      Williams & Montgomery, Ltd., and Foran, Wiss & Schultz, both of Chicago (Barry L. Kroll, James K. Horstman, Thomas A. Foran, and James R. Figliulo, of counsel), for appellant.
    David A. Novoselsky & Associates, of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellees.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Petitioner-appellant Williams & Montgomery, Ltd. (Williams & Montgomery), a Chicago-based law'firm, filed suit against Donald E. Stellato and Richard W. Schumacher, two former nonequity partners of the firm, seeking to enjoin them from soliciting clients of the firm pursuant to written noncompetition agreements. Williams & Montgomery petitioned for a temporary restraining order and a preliminary injunction. Following a hearing, the petition was denied. Williams & Montgomery now appeals pursuant to Supreme Court Rule 307 (a)(1) (107 Ill. 2d R. 307 (a)(1)) from the interlocutory order denying the petition.

The issues raised are (1) whether the trial court applied the proper standard in denying the petition for a preliminary injunction; (2) whether Williams & Montgomery lacks standing to assert any rights under the noncompetition agreements because it is a corporate entity distinct from Jacobs, Williams & Montgomery, Ltd., the party to the agreements; (3) whether Williams & Montgomery either waived its rights under the noncompetition agreements, or is equitably estopped to assert any rights under the agreements, because it failed to assert its rights under similar agreements with other departed lawyers; (4) whether the trial court properly found that Williams & Montgomery did not have a “protectable interest” in maintaining its client relationships; and (5) whether enforcement of the noncompetition agreements would be contrary to public policy. We affirm. We do not decide whether the noncompetition agreements are unenforceable on public policy grounds. We hold instead that, on the record in this case, there is no basis for disturbing the trial court’s finding that Williams & Montgomery did not have a protectable interest in maintaining its client relationships.

The facts of this case are largely undisputed. Williams & Montgomery was incorporated under its current name in 1985 and has been involved primarily in insurance defense litigation. Lloyd Williams and C. Barry Montgomery are currently the sole equity partners of the firm. Prior to 1985, Lloyd Williams and C. Barry Montgomery were partners with Wyatt Jacobs in Jacobs, Williams & Montgomery, Ltd., a law firm which originated as a partnership in 1967 and was incorporated in 1971.

Donald E. Stellato and Richard W. Schumacher are former non-equity partners of Williams & Montgomery. Stellato joined Jacobs, Williams & Montgomery, Ltd., in 1971, became a nonequity partner in 1980, and signed a noncompetition agreement in 1982. Schumacher joined Jacobs, Williams & Montgomery, Ltd., in 1978 and became a nonequity partner in 1985, at which time he signed a noncompetition agreement. On the morning of June 30, 1989, both Stellato and Schumacher resigned from Williams & Montgomery.

Stellato’s noncompetition agreement provided as follows:

“The undersigned recognizes and acknowledges that as a professional employee of Jacobs, Williams and Montgomery, Ltd. (the firm), (s)he will become acquainted with clients of the firm and will establish working relationships with representatives of the firm’s clients. (S)he further acknowledges that, in the promotional efforts of the firm to establish and improve relationships with clients, the firm will expend time, effort and financial resources to develop and enhance the personal and professional reputation of the undersigned as an attorney who is practicing with and for the firm. In contemplation of the foregoing and in consideration of continued employment with the firm and other good and sufficient consideration, the undersigned hereby agrees with the firm that in the event of a severance or termination (for any reason or regardless by which party such severance or termination is initiated) of the employment relationship between the undersigned and the firm, the undersigned will not, for a period of two years and within the Counties of Cook, Lake, DuPage, Will and McHenry of the State of Illinois, seek, solicit or undertake to represent any client of the firm (as hereinafter defined).”

The agreement defined a “client” as “any person, corporation or partnership, association or joint venture and/or the insurer of any one of them, who has had a legal matter pending as an open file with Jacobs, Williams and Montgomery, Ltd., at any time during the next two years preceding termination of employment.”

Schumacher’s agreement was identical except that Schumacher agreed not to “seek or undertake to represent” any client of the firm. Each agreement excluded clients listed on an attached appendix, but no such appendix or list of excluded clients was ever attached to the agreements.

On June 30, 1989, following the resignations of Stellato and Schumacher, Williams & Montgomery filed a petition in the circuit court of Cook County for a temporary restraining order and a preliminary injunction, seeking to enjoin Stellato and Schumacher from contacting any clients of the firm. On that date, an agreed order was entered prohibiting Stellato and Schumacher from contacting any client of Williams & Montgomery pending the evidentiary hearing scheduled for June 5, 1989.

The evidentiary hearing consisted of about 10 hours of testimony spread out between June 5, 1989, and June 13, 1989. The trial court’s restraining order was continued on a day-to-day basis during that time. Lloyd Williams and C. Barry Montgomery each testified that after Stellato and Schumacher signed the noncompetition agreements, they were given “bigger and better” cases to work on, client relations assignments, and a steadily increasing salary. They also testified that after signing the agreements, Stellato and Schumacher were given access to files containing “confidential client information” and to additional confidential information not contained in any files. They testified that the client information files contained highly valuable information the exposure of which would injure the firm vis-a-vis its competitors.

The files were not made part of the record on this appeal. The record shows only that the files were examined by the trial court, described the clients’ businesses and “philosophies,” the types of services the clients desired, their filehandling, reporting, and billing practices, and their history with the law firm.

Lloyd Williams and C. Barry Montgomery testified further that, among his other assignments, Stellato was given significant responsibility for matters involving Allstate Insurance Company, a client of the firm since 1971; Chicago Motor Club, also a client since 1971; the Auto Club of Michigan, a client since the early 1970’s; and Cover X, a client of the firm for several years. Stellato did not bring any of these clients to the firm and, according to Lloyd Williams and C. Barry Montgomery, had access to information regarding them which he would not have had if he had not signed the noncompetition agreement.

The record shows that in January 1989, Stellato sent Lloyd Williams a memorandum urging Williams to assign all Chicago Motor Club files to him and, in April 1989, prepared a list of all such files and a memorandum completing the transfer of the files to his office. On June 30, 1989, before the effective date of Stellato’s resignation, Stellato made appointments to meet with people from Chicago Motor Club, Cover X, and the Auto Club of Michigan. The record does not reveal the purpose of those meetings.

Schumacher was given significant responsibility for matters involving, among others, Rockford Mutual Insurance, a client of the firm since the early 1970’s; American States Insurance, also a client since the early 1970’s; Watkins Associated Industries, a recent client; and Mi-Jack Products, Inc., another recent client. Schumacher did not bring the Rockford, American States, or Mi-Jack business to the firm, but did obtain business from Watkins through a referral from an attorney he had worked with previously. According to Lloyd Williams and C. Barry Montgomery, Schumacher was given access to confidential information about these clients only after he signed the noncom-petition agreement. The record shows that on June 30, 1989, after Schumacher tendered his resignation, C. Barry Montgomery asked him whether he had contacted any clients of the firm and Schumacher left Montgomery’s office refusing to discuss the subject.

Stellato and Schumacher testified that they signed the noncom-petition agreements believing that they would be discharged if they did not do so. During late March and April 1989, every partner of the firm was asked to sign a “reaffirmation” of the noncompetition agreement. Stellato, Schumacher, and one other nonequity partner refused to sign. Stellato and Schumacher did, however, orally reaffirm their intention to abide by the earlier agreements.

Stellato and Schumacher also testified that they did not bring any new business to the firm prior to signing the noncompetition agreements. Stellato, however, stated that he believed business from Allstate’s Indianapolis region came to the firm through his efforts and business from the Auto Club of Michigan increased because of his client visits. Schumacher stated initially that he believed he brought Mi-Jack to the firm, but recalled that he first met people form Mi-Jack while working on other cases in which the firm represented Mi-Jack.

At the close of the evidence, the trial court denied the petition for a temporary restraining order and a preliminary injunction. The trial court stated:

“I am satisfied that there is no protectable interest. I am satisfied that they have no protectable interest in clients per se; that they do not own clients, nor can they have — nor can they expect to protect the constant — affections isn’t the right word, but constant expectation of representation of these clients such that could be protected by the courts. Having found no protectable interest exists, the motion for preliminary injunction restraining the respondents from seeking, soliciting or undertaking to represent clients in accord with the purported agreement is respectfully denied.”

The written order denying the petition was entered on July 14, 1989, and Williams & Montgomery filed a timely notice of interlocutory appeal pursuant to Supreme Court Rule 307(a)(1).

I

Williams & Montgomery maintains that the trial court erroneously applied the standard of proof applicable to claims for permanent injunctive relief, not the standard applicable on a petition for preliminary injunctive relief. Williams & Montgomery seeks a remand for reconsideration by the trial court under the correct standard of proof.

In order that a preliminary injunction may issue, the petitioner must establish by a preponderance of the evidence that: (1) a certain and clearly ascertained right needs protection; (2) irreparable injury will occur without the injunction; (3) no adequate remedy at law exists; and (4) there is a probability of success on the merits of the case. (Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 424 N.E.2d 719.) The petitioner need only raise a “fair question” as to the existence of the right claimed. A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 514 N.E.2d 45.

In this case, following the hearing on the petition, the trial court stated: “Having found that no protectable interest exists, the motion for preliminary injunction restraining the respondents from seeking, soliciting or undertaking to represent clients in accord with the purported agreement is respectfully denied.” It does not follow, as Williams & Montgomery contends, that the trial court applied the wrong standard in denying the petition. Although the trial court’s ruling is consistent with the conclusion that Williams & Montgomery could not succeed on the merits, it is also consistent with the conclusion that Williams & Montgomery failed to prove by a preponderance of the evidence that a “certain and clearly ascertained right needs protection,” or that Williams & Montgomery did not raise a “fair question” as to the existence of a right to relief. Thus, the record does not show affirmatively that the trial court applied the wrong standard, and Williams & Montgomery’s argument, accordingly, fails.

II

Respondents maintain that Williams & Montgomery lacks standing to enforce the agreements because it failed to show that it succeeded to the rights of Jacobs, Williams & Montgomery, Ltd., under the agreements. Respondents argue that Williams & Montgomery is a corporation distinct from Jacobs, Williams & Montgomery, Ltd., as evidenced by the clerk of the supreme court’s issuance of a new corporate registration number to Williams & Montgomery in 1985. Williams & Montgomery maintains that the issue is not properly before the court and respondents’ argument fails, in any event, because Jacobs, Williams & Montgomery, Ltd., simply changed its name in 1985 to Williams & Montgomery, Ltd., following the purchase by the corporation of Jacobs’ shares. Williams & Montgomery argues that mere issuance of a new registration number is not evidence that it is a corporate entity distinct from Jacobs, Williams & Montgomery, Ltd.

Respondents also maintain, somewhat confusingly, that Williams & Montgomery has either waived reliance on the noncompetition agreements, or is equitably estopped to seek enforcement of the agreements, because it failed to enforce similar agreements against other departed lawyers. Respondents rely solely on Surgidev Corp. v. Eye Technology, Inc. (D. Minn. 1986), 648 F. Supp. 661, aff'd (8th Cir. 1987), 828 F. 2d 452, where the district court stated that it would be inequitable to permit the plaintiff-employer to rely on a covenant not to compete which it had “blithely ignored in the past.”

Initially, we reject Williams & Montgomery’s contention that the standing issue is not properly before this court. Even though under Supreme Court Rule 307(a)(1), the sole issue on this appeal is whether the trial court abused its discretion in denying the petition for injunctive relief, this court may decide the case on any ground having factual support in the record.

We do not believe, however, that Williams & Montgomery lacked standing to file the petition. There is no evidence, other than separate registration numbers issued by the clerk of the supreme court, that Jacobs, Williams & Montgomery, Ltd., and Williams & Montgomery were separate corporate entities. To the contrary, the record is replete with evidence that Jacobs, Williams & Montgomery, Ltd., merely changed its name in 1985 to Williams & Montgomery. Lloyd Williams and C. Barry Montgomery both testified that Jacobs, Williams & Montgomery, Ltd., bought the shares owned by Jacobs and then changed its name to Williams & Montgomery without any interruption in the corporation’s existence. This testimony was not rebutted by the mere fact that the firm was issued a new certificate of registration following its name change.

With respect to respondents’ waiver and equitable estoppel arguments, we note that respondents have confused these distinct concepts. A “waiver” is a voluntary relinquishment of a known right, claim, or privilege. (Vaughn v. Speaker (1988), 126 Ill. 2d 150, 161, 533 N.E.2d 885.) An “equitable estoppel” requires proof of no less than six elements: (1) words or conduct amounting to a misrepresentation or concealment of material facts on the part of the party allegedly estopped; (2) knowledge by the party allegedly estopped at the time the representations were made that the representations were untrue; (3) lack of knowledge by the party asserting estoppel at the time the representations were made and at the time they were acted upon that the representations were untrue; (4) the party allegedly estopped must intend or reasonably expect the representations to be acted upon; (5) good-faith reliance on the representations by the party asserting estoppel to its detriment; and (6) prejudice to the party asserting estoppel if the party allegedly estopped is permitted to deny the truth of the representations. Vaughn v. Speaker, 126 Ill. 2d at 162-63.

In this case, there is no evidence in the record that Williams & Montgomery voluntarily relinquished its rights against respondents under the noncompetition agreements. As proof of waiver, respondents rely solely on the assertion that Williams & Montgomery did not seek to enforce noncompetition agreements against other lawyers who left the firm. The record does not show, however, that any other lawyers violated the terms of their noncompetitions agreements.

The record is also devoid of evidence that Williams & Montgomery misrepresented or concealed any material facts in connection with the noncompetition agreements, or that respondents relied to their detriment on any representation made by Williams & Montgomery that it would not enforce the agreements. To the contrary, there is evidence suggesting that respondents anticipated enforcement by Williams & Montgomery of its rights under the agreements. Respondents refused to sign a second agreement and admitted that they consulted with an attorney regarding their rights if terminated. These facts belie any contention that respondents relied to their detriment on any misrepresentation made by Williams & Montgomery.

III

Williams & Montgomery maintains that the trial court erred in finding that it had no “protectable interest” in maintaining its client relationships because the firm had long-standing relationships with its clients, respondents’ contacts with the firm’s clients were arranged and fostered by the firm, and respondents had access to client information only because they signed the non-competition agreements. We disagree.

Noncompetition agreements are carefully scrutinized by the courts because they can result in restraints of trade. (American Claims Service v. Boris (1985), 137 Ill. App. 3d 948, 951, 485 N.E.2d 534.) A noncompetition agreement containing reasonable time and territorial restraints will be enforced, where the employee acquires confidential information about the employer’s customers which he would not have acquired but for the employment relationship, and subsequently attempts to use it for his own benefit. (See American Claims Service v. Boris, 137 Ill. App. 3d at 951, 485 N.E.2d at 536.) The employer is then said to have a “protectable business interest” in its customers. (See Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 713-14, 390 N.E.2d 68.) The employer may also have a protectable interest in its customers or clients in certain professions in which the employer “could justifiably anticipate a permanent or near-permanent relationship with their clientele.” (Image Supplies, Inc. v. Hilmert, 71 Ill. App. 3d at 713-14.) For example, courts have found that near-permanent client relationships existed justifying enforcement of noncompetition agreements among doctors (See Canfield v. Spear (1969), 44 Ill. 2d 49, 254 N.E.2d 423), and veterinarians (see Cockerill v. Wilson (1972), 51 Ill. 2d 179, 281 N.E.2d 648).

In this case, respondents argue that Williams & Montgomery did not have a protectable interest in its clients because the names of the firm’s clients were not confidential and other law firms regularly did insurance defense work for Williams & Montgomery’s clients. Respondents rely principally on Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 390 N.E.2d 68, where the court refused to enforce a noncompetition agreement in favor of a firm in the printing business, where client lists were not confidential and the employees did not acquire confidential information while employed. Respondents argue that Williams & Montgomery likewise failed to show that Stellato and Schumacher acquired any confidential information.

With respect to whether Stellato or Schumacher acquired any confidential information, we find respondents’ argument persuasive. The names of Williams & Montgomery’s clients were published in legal and insurance directories and were known to other law firms. The same clients also retained other law firms in the Chicago area for insurance defense work. Also, the trial court examined the client files and heard all of the evidence regarding their “confidential” nature, including respondents’ testimony that the files were “unimportant.” The files were not included in the record, so that we would have to speculate regarding their contents before disturbing the trial court’s conclusion that the files did not give rise to a protectable interest. This we will not do. Accordingly, we cannot conclude that the trial court abused its discretion in finding no protectable interest based on Williams & Montgomery’s failure to prove that respondents acquired any confidential information.

Williams & Montgomery’s failure to prove that respondents acquired any confidential information, however, is not dispositive of the question presented in this case. In Canfield and Cockerill, for example, the courts enforced noncompetition agreements among doctors and veterinarians, respectively, finding “near-permanent relationships” between the employers and their clients. Indeed, the court in Image Supplies, Inc. was careful to distinguish the printing business involved in that case from the professions in Canfield and Cockerill. We must, accordingly, consider whether Williams & Montgomery had “near-permanent relationships” with its clients.

There is uncontroverted evidence that Williams & Montgomery’s clients retained other law firms in the Chicago area for insurance work. The trial court itself concluded that Williams & Montgomery could not have “constant expectation of representation of these clients[.]” Based on this record, we cannot conclude that Williams & Montgomery had “near-permanent relationships” with its clients. We do not believe this result is contrary to Canfield or Cockerill, because common sense suggests that insurance defense firms are more likely to share clients than doctors or veterinarians. Thus, on the record of this case, there is no basis for disturbing the trial court’s conclusion that Williams & Montgomery did not have a protectable interest in maintaining its client relationships.

Finally, we note that there is little support in the record for Williams & Montgomery’s contention that respondents actually solicited clients in violation of the agreements. The record shows only that respondents had made certain lunch or golf appointments with employees from Chicago Motor Club, Cover X, and the Auto Club of Michigan. Stellato denied that the purpose of those meetings was to solicit business. He testified that his purpose was merely to inform certain persons that he had left Williams & Montgomery. We do not believe this is sufficient evidence to warrant preliminary injunctive relief. (See Smith, Waters, Kuehn, Burnett & Hughes, Ltd. v. Burnett (1989), 192 Ill. App. 3d 693.) The petition for a preliminary injunction was properly denied.

Because of our conclusion above, we do not reach the other issues raised by the parties.

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

Affirmed.

HARTMAN and BILANDIC, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    ANNETTE BRYANT, Plaintiff-Appellant, v. COOK COUNTY ELECTORAL BOARD et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—90—0528
    Opinion filed March 13, 1990.
    Ernesto D. Borges, of Chicago, for appellant.
    James M. Morphew, of Springfield, for appellee Bernadette Evans.
    Cecil A. Partee, State’s Attorney, of Chicago (Barbara Goodman, Special Assistant State’s Attorney, of counsel), for appellee Cook County Electoral Board.
    No brief filed for other appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County affirming the Cook County Officers Electoral Board’s (the Electoral Board’s) decision invalidating Annette Bryant’s (plaintiff’s) nominating papers to place her on the March 20, 1990, primary ballot as a candidate for nomination of the Democratic Party to the office of the 15th District representative in the General Assembly. Following a hearing on Bernadette Evans’ petition objecting to plaintiff’s nomination papers, the Electoral Board held that plaintiff failed to comply with the requirement in section 7 — 12(8) of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 7—12(8)) that she “file a statement of economic interests as required by the Illinois Governmental Ethics Act (Ethics Act) in relation to [her] candidacy” and the Ethics Act’s provision that “[t]he statement of economic interests *** contain substantially the following:

STATEMENT OF ECONOMIC INTERESTS (TYPE OR HAND PRINT)

(Name)

(office or position of employment for which this statement is filed).” (Ill. Rev. Stat. 1987, ch. 127, par. 604A—104.)

Although plaintiff attached to her nominating papers filed with the State Board of Elections a receipt recording the filing of an economic interests statement with the Secretary of State, the Electoral Board found that the words “Fifteenth Representative District of the State of Illinois” printed in the space provided to disclose the office or position of employment did not satisfy statutory requirements.

On appeal, plaintiff initially contends that the Electoral Board lacked jurisdiction to declare her nomination papers invalid because it had no statutory authority to rule on the substance of her economic interests statement. While it is true that an electoral board generally does not have the statutory jurisdiction to inquire into the truth and veracity of disclosures in a statement of economic interests (Troutman v. Keys (1987), 156 Ill. App. 3d 247, 509 N.E.2d 453), the Electoral Board’s authority to rule as to the sufficiency of the disclosure in issue here is statutorily granted.

Section 10 — 10 of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 10—10) provides that “ft]he electoral board *** in general shall decide whether or not the *** nominating papers or petitions on file are valid or whether the objections thereto should be sustained.” Because section 7 — 12(8) of the Election Code provides that nominating papers are invalid if the candidate does not file a statement of economic interests in relation to the candidacy, the Election Code, in granting the Electoral Board jurisdiction to determine the validity of nominating papers, necessarily has granted the Electoral Board jurisdiction to review the disclosure relative to whether the statement has been filed “in relation to [the] candidacy.” Such a construction is consistent with the Election Code’s purpose to facilitate the public’s right to information concerning financial dealings between a candidate and the unit of government in which he seeks office (see Jones v. Municipal Officers Electoral Board (1983), 112 Ill. App. 3d 926, 930, 446 N.E.2d 256, 259), as well as with previous appellate court opinions affirming Electoral Board rulings on such matters (see Jones, 112 Ill. App. 3d 926, 446 N.E.2d 256; Miceli v. Lavelle (1983), 114 Ill. App. 3d 311, 448 N.E.2d 989).

Plaintiff next contends that the Electoral Board erred in finding that the words “15th Representative District” did not sufficiently disclose the office of representative in the General Assembly to meet statutory requirements. Pointing out that provisions imposing disqualifications on candidates “should be strictly construed *** in favor of eligibility” (Livingston v. Ogilvie (1969), 43 Ill. 2d 9, 17, 250 N.E.2d 138, 143; McGuire v. Nogaj (1986), 146 Ill. App. 3d 280, 282, 496 N.E.2d 1037, 1039), plaintiff argues that the governmental position she sought is evident from the words “15th Representative District,” since only one office of representative exists in each representative district.

Defendants conversely argue that plaintiff’s candidacy is not apparent from these words because they refer only to a territorial description and certain governmental employees are also required to file such statements. (See Ill. Rev. Stat. 1987, ch. 127, par. 604A—101.) They assert that the appellate court found a similar territorial description not to satisfy statutory requirements in Jones v. Municipal Officers Electoral Board (1983), 112 Ill. App. 3d 926, 929, 446 N.E.2d 256, 258, where the court found that the words “3rd Ward” did not describe the office of alderman of the 3rd ward.

In reviewing the Electoral Board’s finding, we are mindful that an electoral board’s findings will not be reversed unless they are against the manifest weight of the evidence. (Panarese v. Hosty (1982), 104 Ill. App. 3d 627, 432 N.E.2d 1333.) We are further mindful of the Election Code’s purpose to facilitate the public’s right to information concerning a candidate’s financial dealings (Jones, 112 Ill. App. 3d at 930, 446 N.E.2d at 249) and that the Ethics Act requires that the economic interests statement “substantially” contain certain specified information (Ill. Rev. Stat. 1987, ch. 127, par. 604A—104).

Significant differences exist between the disclosures made in the case at bar and those in Jones. In Jones, the aldermanic candidate inserted his position as pastor of a church on the space provided for the office or position of employment and did not include the word “aldermanic” in his entry of “3rd Ward” on the space provided for his name. The representative candidate here included the word “representative” in the correct space provided for, and in response to, “office or position of employment.” In fact, a transposition of the words to “Representative 15th District” undoubtedly would satisfy statutory requirements. As written, plaintiff’s disclosure directed the public to the “representative” unit of government and the precise district of that representative unit, in which only one office of representative exists. We also note that the record does not indicate which, if any, other employees of this governmental unit are required to file economic interests statements. Thus, we find that the words “15th Representative District” substantially disclose the office of representative of the 15th District of the General Assembly and adequately informs the public of plaintiff’s candidacy and therefore hold that the Electoral Board’s finding is against the manifest weight of the evidence.

Accordingly, we reverse the judgment of the circuit court and remand the case with instructions to the circuit court to order the Electoral Board to place plaintiff’s name on the March 20, 1990, primary ballot as a candidate for nomination of the Democratic Party to the office of the 15th District representative in the General Assembly.

Reversed and remanded with directions.

O’CONNOR and MANNING, JJ., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES PHILLIPS, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—0641
    Opinion filed March 15, 1990.
    Howard Pomer & Associates, of Chicago (Thomas N. Auwers, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Walter P. Hehner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

After a bench trial, defendant James Phillips was found guilty of battery and sentenced to one year’s probation and assessed a fine of $90. Defendant contends that he did not knowingly and intelligently waive his sixth amendment right to counsel.

On February 14, 1989, defendant appeared before the trial court, where the trial judge asked him if he had an attorney. Defendant responded that he thought he could represent himself. The trial judge then asked him if he had gone to law school. After defendant replied that he had not, the trial judge advised him that he was charged with battery, a Class A misdemeanor having a maximum sentence of one year and a maximum fine of $1,000. The trial judge then stated that he would protect defendant’s constitutional rights and that an assistant State’s Attorney would be presenting the case against him. He then warned defendant that if found guilty, he would not be allowed to have a new trial. The trial judge told defendant that it was important that he understood what was happening and then asked him if he still wanted to represent himself. Defendant replied that he did. The case was later recalled for trial, and the trial court again advised defendant of the maximum sentence he could receive. The trial judge then asked defendant if he wanted to waive a jury trial, and defendant replied that he did.

Defendant contends that he was not sufficiently admonished by the trial court of his rights under Illinois Supreme Court Rule 401(a) (107 Ill. 2d R. 401(a)) prior to waiving his right to counsel.

The State argues that defendant has waived his right to raise the issue of a valid waiver of counsel because he failed to raise the issue in his motion for a new trial. We are in agreement with the State, but although we need not consider this issue (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124), we choose to consider the merits of defendant’s appeal.

Illinois Supreme Court Rule 401(a) provides that prior to permitting a waiver of counsel by defendant, the trial court must inform him and determine that he understands the following:

“(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.” 107 Ill. 2d R. 401(a).

Defendant argues that, because the trial court failed to advise him of the minimum sentence he could receive, his waiver was invalid. However, we find that the trial court clearly admonished defendant of the maximum penalties allowed and that he was not prejudiced when he received less than the maximum sentence. See People v. Johnson (1988), 119 Ill. 2d 119, 518 N.E.2d 100.

Next, defendant contends that he was never advised that he could have counsel appointed for him by the trial court if he were indigent. However, where actual imprisonment does not occur, defendant has no basis for- claiming violation of a constitutional right to court-appointed counsel. (People v. Morgese (1981), 94 Ill. App. 3d 638, 418 N.E.2d 1124.) Further, the record indicates that not only was defendant not indigent, but he used the fact of his employment as the basis of his defense to the crime. For these reasons we find that defendant was not prejudiced by the trial court’s failure to advise him that an indigent defendant could have an attorney appointed by the court.

Defendant argues that the trial court made no attempt to determine whether he understood the charges against him or was competent to knowingly waive counsel. In Illinois the trial court must make a subjective evaluation of competence and its finding will not be disturbed unless it is against the manifest weight of the evidence. (People v. Kessler (1983), 113 Ill. App. 3d 354, 447 N.E.2d 495.) Reviewing the record, we find no indication that defendant was incompetent or otherwise handicapped such that he merited special consideration by the trial court.

Accordingly, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

McMORROW, P.J., and JOHNSON, J., concur.