author: JUSTICE BOWMAN

text:
    TRUMAN GREEN, d/b/a Tru’s West State Lounge and Package Liquors, et al., Plaintiffs-Appellants, v. INTERNATIONAL INSURANCE COMPANY, Defendant-Appellee (Crum and Foster Commercial Insurance Company et al., Defendants).
    Second District
    No. 2—92—0191
    Opinion filed December 23, 1992.

      William E. Schirger and David F. Monteleone, both of William E. Schirger & Associates, of Rockford, for appellants.
    Thomas H. Boswell, of Hinshaw & Culbertson, of Rockford, and D. Kendall Griffith and Bruce L. Carmen, both of Hinshaw & Culbertson, and Douglas C. Crone, of Tribler & Orpett, P.C., both of Chicago, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiffs, Truman Green, d/b/a Tru’s West State Lounge and Package Liquors, and Tru’s, Inc., appeal the order of the circuit court granting summary judgment for defendant International Insurance Company (International). Plaintiffs sued International for damages for its allegedly unreasonable and vexatious delay in paying a claim. (See Ill. Rev. Stat. 1989, ch. 73, pars. 766.6, 767.) On appeal, plaintiffs contend that the court erred in holding that plaintiff could not prove vexatious delay absent a breach of the insurance contract and therefore erred in granting summary judgment to International.

Plaintiff Tru’s, Inc., was the owner and operator of a package liquor store, lounge and restaurant in Rockford. Plaintiff Green is apparently the sole shareholder of Tru’s, Inc. These entities will be referred to collectively as “plaintiff.”

In April 1987, plaintiff purchased from International an insurance policy covering the business premises. The policy provided full coverage, including business interruption insurance.

On March 8, 1988, a fire destroyed the premises. Plaintiff immediately notified the insurance company, which conducted an investigation. International paid plaintiff $393,000 for the value of the destroyed premises. However, a disagreement developed regarding the amount due plaintiff for lost profits while the business remained closed.

Apparently Green did not draw a salary from the business. His primary compensation was in the form of $3,300 per month which the corporation paid him as rent. The dispute centered around whether these rental payments were a noncontinuing expense, which abated while the business was closed.

On June 21, 1988, an employee of Ordway and Politic, the insurance agency which sold plaintiff the policy, wrote to International stating that Green, Tru’s West State Lounge & Package Liquors, and Tru’s, Inc., constituted the same entity for insurance purposes.

International retained an accounting firm, which subsequently determined that plaintiff’s lost profits for four months amounted to $28,071. The accountants raised a number of discrepancies between their calculations and the figures which plaintiff submitted in his proof of loss. The primary difference was the treatment of the $3,300 monthly rent.

International’s attorney wrote to plaintiff’s attorney, William Schirger, proposing a settlement of $11,565, which did not include the disputed rental income. Schirger responded with a demand of $60,000. Schirger stated that plaintiff required the funds immediately in order to reopen the business. On November 1, 1988, International raised its offer to $15,165.

Subsequently, the parties began an appraisal process provided for by the insurance policy. Paragraph 10 of the policy provides in relevant part as follows:

“If the named insured and the Company fail to agree on the amount of the loss, either can demand that the amount of loss be set by appraisal. If either party makes a written demand for appraisal, each shall select a competent independent appraiser. ***
The two appraisers shall select a competent, impartial umpire. If the appraisers are unable to agree upon an umpire within fifteen (15) days, the named insured or the Company may petition a judge of a Court of Record in the state where the insured premises is located to select an umpire.”

It is unclear who initially demanded the appraisal process. However, plaintiff appointed Ray Ferguson as his appraiser, and International appointed Mark Leisen as its appraiser. Ferguson and Leisen had considerable difficulty agreeing on an umpire. Neither party, however, sought to petition the court for the appointment of an umpire as provided for in the policy.

Early in 1989, Schirger wrote several letters to International requesting that the latter move forward with the arbitration process, because plaintiff was in desperate need of the funds to rebuild the business. Schirger expressly accused International of bad-faith dealing and threatened to file suit if some type of resolution was not reached by March 16,1989.

Plaintiff filed the instant complaint in February 1990. At this time, Schirger stated that plaintiff still wished to settle the matter if possible and the appraisal process was still proceeding, albeit very slowly.

The appraisers did not meet at all during 1990. During this time Leisen cancelled several scheduled meetings. Also, Leisen and Ferguson were unable to agree on the appointment of an umpire. Leisen named several candidates, all of whom turned out to have had some association with International. Ferguson, in turn, suggested that the umpire should be a member of the Winnebago County bar.

On January 23, 1991, International offered a settlement of $46,805. This represented an amount which Leisen felt was owed, but did not include any amount for damages caused by the delay in settlement or for attorney fees. Plaintiff subsequently made a demand of $150,102, which included a 25% penalty, interest, and attorney fees.

Eventually Frederic Brandt was appointed as the umpire. However, at a September 6, 1991, meeting, it was revealed that Brandt was currently representing International in several matters. Retired judge John Sype was then named as the third appraiser. The reconstituted panel met on September 30, 1991, and set plaintiff’s damages at $39,000 on the underlying claim for lost income. This figure did not include any amount for damages caused by delay in payment, an alleged lost income opportunity, attorney fees and penalties.

International tendered payment of the $39,000 on the condition that plaintiff execute a general release. Plaintiff’s attorney submitted a partial release, which would have preserved plaintiff’s claim for bad-faith damages. The insurance company rejected this release and apparently the $39,000 remains unpaid.

International filed a motion for summary judgment, accompanied by the affidavit of Leisen. International contended that it had fulfilled its contractual obligation by submitting the matter to arbitration and tendering the amount recommended by the arbitrators. International contended that it appointed an appraiser in good faith and was not responsible for any delays in the appraisal process. International pointed out that plaintiff had failed to avail himself of the remedy specified in the policy to expedite the appraisal process.

Plaintiff filed a response. International filed a supplement to its motion, and plaintiff filed a supplemental response. Plaintiff’s responses included affidavits of Schirger and Ferguson and essentially stated the facts set forth above.

The court granted International’s motion. The court held that the parties submitted the dispute to arbitration and thus “the parties abided by the terms of their contract (allbeit [sic] with much delay, irritation and confusion). Plaintiff has failed to identify nor has the court found any provision of the contract that requires the defendant to pay plaintiff’s claim in any amount demanded or within any particular time. The contract has not been breached. There is no material fact to be decided.”

Plaintiff filed a timely notice of appeal. On appeal, plaintiff contends that the court erred in granting summary judgment for International. Specifically, plaintiff contends that material issues of fact exist regarding whether International unreasonably and vexatiously delayed settlement of plaintiff’s claim.

Summary judgment is a drastic and extraordinary remedy and must be granted only when the movant’s right to judgment as a matter of law is absolutely clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240; Anest v. Bailey (1990), 198 Ill. App. 3d 740, 744.) In deciding a motion for summary judgment, the trial court is to determine whether issues of material fact are present, but is not to try those issues. (Purtill, 111 Ill. 2d at 240.) The trial court should grant summary judgment only when the pleadings, affidavits, and other supporting evidence on file present no genuine issue of material fact. (Anest, 198 Ill. App. 3d at 744; Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) The court must construe the record before it most strictly against the movant and in favor of the nonmovant and draw all reasonable inferences in favor of the nonmovant. (Anest, 198 Ill. App. 3d at 744-45.) A plaintiff opposing a defendant’s motion for summary judgment is not required to prove his case at that stage of the proceedings, but must only establish sufficient facts arguably to support judgment in his favor. (Williams v. Alfred N. Koplin & Co. (1983), 114 Ill. App. 3d 482, 487.) Even if the facts are not in dispute, if reasonable persons could draw conflicting inferences from the undisputed facts, the court should deny summary judgment. Pyne v. Whitmer (1989), 129 Ill. 2d 351, 357-59.

On review, when the appellate court is faced with an appeal involving only the propriety of summary judgment, the de novo standard of review should be applied. The appellate court, like the trial court, determines whether there is a genuine issue of material fact. Demos v. National Bank (1991), 209 Ill. App. 3d 655, 659-60.

There is no question that a fire destroyed the insured premises and that this constituted a covered loss. International promptly paid plaintiff $393,000, representing the value of the premises. The only dispute between the parties concerns the amount of plaintiffs lost income from the interruption of the business. International does not dispute coverage for this item of loss, only the amount of the loss. The primary sticking point was whether the $3,300 monthly rent which the corporation paid to Green was lost income to Green (a named insured under the policy) or a noncontinuing expense for the corporation which should be deducted from any recovery.

Being unable to settle their differences, the parties submitted the dispute to appraisers. As provided by the policy, each party named an appraiser. The two appraisers, however, had difficulty selecting an “umpire,” who was to serve essentially as a third arbitrator. A number of scheduled meetings between plaintiff’s appraiser, Ferguson, and defendant’s appraiser, Leisen, were cancelled, apparently by Leisen. Eventually, an umpire was appointed and the panel determined an appropriate settlement amount. The parties subsequently disagreed regarding the form of the release, and plaintiff has not to date received the settlement amount.

International argues that these facts do not demonstrate any bad faith on its part. It contends that it fulfilled its obligation under the contract by submitting the dispute to arbitration and that there is no evidence that International was responsible for the delay in the arbitration process. International maintains that Leisen was not its agent and that any dilatory conduct by the appraisers cannot be attributed to it as a matter of law.

Plaintiff contends, and we agree, that simply submitting to the appraisal process did not extinguish International’s contractual obligation. International still had an obligation to participate in good faith in the appraisal process and may be held liable if it unreasonably delayed that process.

Section 155 of the Illinois Insurance Code provides a remedy for an insured who encounters unnecessary difficulties when an insurer withholds policy benefits. (Richardson v. Illinois Power Co. (1991), 217 Ill. App. 3d 708, 711; Ill. Rev. Stat. 1989, ch. 73, par. 767.) Whether the insurer’s acts are “unreasonable and vexatious” within the meaning of section 155 is a question of fact, which is discretionary with the trial court. (Kohlmeier v. Shelter Insurance Co. (1988), 170 Ill. App. 3d 643, 659.) In determining whether the defendant’s conduct was unreasonable and vexatious, the trial court must consider the totality of the circumstances, and on review its discretion will not be disturbed absent an abuse of that discretion. Neither the length of time, the amount of money involved, nor any other single factor is dispositive; rather, it is “the attitude of the defendant which must be examined.” (Norman v. American National Insurance Co. (1990), 198 Ill. App. 3d 269, 304.) If there is a bona fide dispute concerning coverage, delay in settling the claim does not violate the statute. (Kohlmeier, 170 Ill. App. 3d at 659, citing Mohr v. Dix Mutual County Fire Insurance Co. (1986), 143 Ill. App. 3d 989, 999.) On the other hand, the court may award damages for unreasonable delay even though the insurer pays the full amount due before suit is filed. Calcagno v. Personalcare Health Management, Inc. (1991), 207 Ill. App. 3d 493, 504.

Plaintiff does not seriously contend that International’s original position concerning the rental payments was unreasonable. We note that the amount ultimately recommended by the appraisal panel fell between the amount originally offered by the insurance company and the amount originally demanded by the plaintiff. This is at least some evidence that the genesis of the dispute, at least, was in good faith. Rather, plaintiff focuses on the lengthy appraisal process, which has consumed approximately four years. He contends that the facts are sufficient to raise an inference that Leisen was International’s agent and delayed the proceedings at its behest. We agree.

International contends that Leisen was not its agent, but the record does not support this assertion. The insurance policy provides that each party is to pay the appraiser which it selected. Moreover, Leisen’s affidavit states that he “was hired” by International. At the very least, this evidence creates an issue of fact regarding whether Leisen was International’s agent during the appraisal process.

Moreover, the trier of fact could reasonably conclude that Leisen intentionally delayed the appraisal process at the behest of International. Affidavits of Ferguson and Schirger state that Leisen repeatedly insisted on naming umpire candidates who currently or formerly had dealings with International. Moreover, throughout 1990, he cancelled a series of meetings at the last minute and usually without explanation.

In Mohr v. Dix Mutual County Fire Insurance Co. (1986), 143 Ill. App. 3d 989, a case which neither party cites, the court held that where the defendant ignored repeated attempts by plaintiff to set up a meeting to discuss the dispute, defendant could be found guilty of unreasonable and vexatious delay. (Mohr, 143 Ill. App. 3d at 999.) Plaintiff’s affidavits could support a similar inference here. We do not consider significant the fact that the alleged delay occurred while defendant was purportedly engaged in an appraisal process called for by the contract. If that were the case, an insurance company could postpone payment of a claim indefinitely by submitting the matter to arbitration and selecting an arbitrator who would then effectively consign the case to oblivion.

In this case, International points out that the policy provided plaintiff with a remedy: he could have petitioned a court to appoint an umpire if the appraisers failed to agree on one within 15 days. Plaintiff failed to avail himself of this remedy. However, this fact alone is not dispositive. The purpose of section 155 is to permit the insured to obtain the amount due him without the expense of going to court.

A defendant moving for Nummary judgment has the burden of establishing that it has a clear right to judgment as a matter of law. Defendant’s motion and supporting documents simply fail to meet that burden. In considering the totality of the circumstances, the court could reasonably conclude that defendant’s conduct amounted to unreasonable and vexatious delay in settling plaintiff’s claim. Therefore, the trial court erred in granting summary judgment for defendant.

For the foregoing reasons, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS, P.J., and McLAREN, J., concur.


source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
    REGINALD B. HOWARD, Plaintiff-Appellant, v. JAMES DRUCKEMILLER et al., Defendants (Patricia S. Hedstrom, n/k/a Carr, Defendant-Appellee).
    Second District
    No. 2—91—0784
    Opinion filed December 29, 1992.
    Rehearing denied February 10,1993.

      Donald M. Orstrom, of Glen Ellyn, for appellant.
    Thomas L. Knight, of Walsh, Knippen, Knight & Diamond, of Wheaton, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, Reginald B. Howard, appeals from the trial court’s dismissal of count IV of his amended complaint against the defendant, Patricia Hedstrom, n/k/a Carr. Alternatively, he appeals from the court’s order denying him leave to file count IV of his second amended complaint. We reverse.

The plaintiff brought this action, in part, against Patricia Hedstrom, n/k/a Carr (the defendant), the attorney representing him on his purchase of a house. He also joined the persons who sold him the house and the exterminating company that inspected the house for insect infestation. Count IV of the amended complaint alleged a malpractice claim against the defendant.

In count IV of his amended complaint, the plaintiff alleged that he hired the defendant lawyer to represent him in his purchase of a house. He further alleged that while the defendant was in that employ, he “from time to time” told her he wished to hire a private inspector for the house; each time, the defendant informed him that it was not necessary to hire an inspector, that the Veteran’s Administration (VA) inspector would be capable and would protect the plaintiff’s interests, and that the VA would protect the plaintiff as a former service man.

Count IV further alleged that after he closed on the house and moved in, the plaintiff discovered latent defects including a rotted, ant-infested and out-of-level garage roof; a water-damaged laundry-room floor; dry-rot in the front door threshold, window trim, and exterior fascia; pest infestation; inadequate attic and crawl space insulation; an inadequate electrical service panel; a cracked furnace needing replacement; rusted bathroom faucet and kitchen sink pipes; a leaking water meter valve; a toilet needing repair; and an unconnected outside water faucet. Count IV further alleged that these defects established that the VA did not perform the type of “protecting” inspection assured by the defendant and that, as a proximate result of the defendant’s breach of duty in her representation on the house purchase, the plaintiff had suffered damages.

On September 8, 1989, the trial court granted the defendant’s motion under section 2—615 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2—615) to dismiss count IV for failure to state a cause of action. The defendant argued, primarily, that amended count IV alleged no more than her error of opinion or judgment and, thus, that it stated no basis for attorney malpractice liability.

On September 13, 1990, the plaintiff sought leave to file his second amended complaint. The second amended complaint realleged the legal malpractice claim in a new count IV. The new count IV referred to a notice that had been attached to the VA certificate of reasonable value. The notice stated that the VA appraisal “does not assure that the house will be satisfactory to [the buyer] in all respects or that all equipment will operate properly.” The notice also suggested that “[a] thorough inspection of the property by [the buyer] or a reputable inspection firm may help minimize any problems.” The notice also added “REMEMBER: VA guarantees the loan, not the condition of the property.” Additionally, the new count IV added the allegation that the defendant knew or should have known that the VA and its inspection (1) were only concerned about the house value for loan purposes and (2) did not produce the information routinely provided by a private home inspection service.

The defendant opposed the plaintiff’s filing of the second amended complaint’s count IV. She argued that it failed to cure the substantive deficiencies of the amended complaint. At the November 1, 1990, hearing on the motion for leave to file, the trial court raised the additional question of the timeliness of the plaintiff’s request to file.

On November 13, 1990, after considering the parties’ additional authorities and memoranda, the time elapsed since the dismissal of the first amended complaint, and the lack of legitimate reason for that delay, the court denied the plaintiff leave to file the second amended complaint count IV. On June 14, 1991, the court granted the plaintiff’s motion to dismiss voluntarily (see Ill. Rev. Stat. 1991, ch. 110, par. 2—1009) the remainder of the cause. On July 12, 1991, the plaintiff filed his notice of appeal.

The defendant raises an initial argument that we lack jurisdiction for this appeal. She relies on Flores v. Dugan (1982), 91 Ill. 2d 108, in arguing that there is no final judgment to support jurisdiction under Supreme Court Rule 301 (134 Ill. 2d R. 301). She notes that under section 13—217 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13—217), for one year following his voluntary dismissal, the plaintiff has an absolute right to refile against the voluntarily dismissed defendants. She emphasizes that there is no finding under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) to support an appeal as to fewer than all the parties.

Although neither party has presented a thorough argument, our own analysis leads us to conclude that we do have jurisdiction in this case. The cases that the defendant emphasizes for our analysis of the jurisdiction issue are Flores v. Dugan (1982), 91 Ill. 2d 108, Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, and Dillie v. Bisby (1985), 106 Ill. 2d 487, remanded (1985), 136 Ill. App. 3d 170. In those cases, regardless of the precise nature of the dismissal in question, the court observed that when a plaintiff retains an absolute right to refile his lawsuit, a dismissal does not represent a final and appealable order to support his appeal. Flores, 91 Ill. 2d at 111-12; Kahle, 104 Ill. 2d at 305-07; Wold, 96 Ill. 2d at 112; Dillie, 106 Ill. 2d at 491.

We find that the above-mentioned cases are distinguishable from this case. None of them includes a scenario, like the one here, where the trial court made a prejudicial ruling on a portion of the case before the balance of the case was dismissed without prejudice to refiling. A more revealing case for our analysis is Reagan v. Baird (1985), 140 Ill. App. 3d 58. There, the appellate court found that it had jurisdiction to review the merits of the trial court’s dismissal with prejudice against one named defendant, despite the facts that (1) there was no Rule 304(a) finding as to that finding; and (2) there was only a dismissal without prejudice as to other named defendants.

As the Reagan court observed, for an order of dismissal to be final and appealable, it must be entered “with prejudice” as to at least some of the parties or claims. (140 Ill. App. 3d at 61-62.) That is the case here, as it was not in the cases upon which the defendant relies. We find that despite the plaintiff’s remaining right to refile on his voluntarily dismissed counts, following his voluntary dismissal of the balance of his case, the trial court’s dismissal of count IV and its denial of filing a second amended count IV are final rulings that we have jurisdiction to review. (See Rein v. David A. Noyes & Co. (1992), 230 Ill. App. 3d 12, 15.) We note that the plaintiff does not, as he probably could not, assert that we have jurisdiction to consider his appeal of his own voluntary dismissal. See Flores, 91 Ill. 2d at 111-12.

On the merits, the plaintiff first argues that the trial court erred in dismissing count IV of his first amended complaint. His primary assertion is that count IV did not merely charge an error in judgment.

The defendant does not address that particular argument. Rather, she argues that even if the trial court had authority to allow the plaintiff to file his second amended count IV, the court properly denied the filing: (1) because of the plaintiff’s untimeliness and (2) because it has the same legal deficiency as the plaintiff’s amended count IV. In her legal deficiency claim, the defendant asserts that her alleged actions were in the nature of a mere exercise of judgment or opinion as to whether the plaintiff should obtain a home inspection. According to the defendant, such an exercise is not actionable in attorney malpractice.

As the parties do not dispute, a motion to dismiss under section 2 —615 admits all well-pleaded facts, and on review of a section 2— 615 dismissal, we must determine whether the allegations of the complaint, when interpreted in a light most favorable to the plaintiff, are sufficient to set forth a cause of action on which relief may be granted. (Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 1100-01.) The parties also do not dispute that to state a cause of action for attorney malpractice, a client must plead facts establishing an attorney-client relationship, the breach of a duty owed by virtue of that relationship, and loss or injury proximately caused by that breach. Goldstein v. Lustig (1987), 154 Ill. App. 3d 595, 598.

Illinois law is clear that an attorney is liable to his client for damages only when he fails to exercise a reasonable degree of care and skill, and the law distinguishes between negligence and mere errors of judgment. (Spivack, Shulman & Goldman v. Foremost Liquor Store, Inc. (1984), 124 Ill. App. 3d 676, 683.) Whether an attorney has exercised a reasonable degree of care and skill is a question of fact, and the standard of care generally must be established through expert testimony. 124 Ill. App. 3d at 683.

In his first amended complaint, the plaintiff clearly alleged that the defendant agreed to represent him as his attorney on a real estate purchase. To allege a breach of that duty, the plaintiff relied on his allegation that he expressed to the defendant his wish to hire a private home inspector and that the defendant informed him that such an inspection was not necessary because the VA inspection would suffice. The plaintiff further alleged injury or loss proximately resulting from the defendant’s advice, referring to the cost of repairing the latent defects he first discovered after moving into the house.

We find that the plaintiff’s first amended complaint clearly satisfied the requirement to plead an attorney-client relationship, with its attendant duty for the defendant attorney to represent the plaintiff with zeal and diligence. (See In re Fox (1988), 122 Ill. 2d 402, 409.) We further find that the plaintiff satisfied the requirement to plead a proximate loss resulting from the defendant’s advice. The critical issue remaining on the question of the first amended complaint’s sufficiency, then, is whether it adequately alleged the defendant’s breach of her duty as plaintiff’s attorney.

We find the case of Spivack, Shulman & Goldman v. Foremost Liquor Store, Inc. (1984), 124 Ill. App. 3d 676, to be most instructive on that question. In Spivack, the counterplaintiff liquor store charged the counterdefendant law firm with attorney malpractice. That charge was based, among other things, on allegations of (1) the law firm’s advice to the client store that despite its landlord’s notice that it would not renew the store’s lease, the store need not vacate store premises on or before the expiration date; (2) the law firm’s advice that it would defeat a forcible detainer eviction; and (3) the law firm’s “guarantee” to the store that if the landlord was not enjoined, the store still would be able to remain on the premises for 6 to 12 months. The store alleged that soon after the store’s lease expired, the store lost a forcible detainer action filed against it by its landlord and that it incurred monetary losses as a result of the law firm’s negligent advice. The store sought to recover its monetary losses allegedly incurred as a result of the law firm’s advice.

The Spivack court reversed summary judgment for the law firm. It found that the trial court had erred in not considering whether the firm’s advice had constituted a breach of the standard of care it owed to the client. (Spivack, 124 Ill. App. 3d at 684.) On denial of rehearing, the Spivack court further commented that, although an attorney is not liable as a guarantor of litigation, he may be liable for the making of a guarantee, if it can be shown (1) that he made such a guarantee and (2) that the guarantee was a breach of the standard of care owed to the client. 124 Ill. App. 3d at 685.

We find, as the plaintiff argues, that this case is analogous to Spivack. The plaintiffs first amended complaint included well-pleaded facts that, when construed in his favor, could support a conclusion that the defendant’s advice not to hire a private inspector was a breach of the standard of care owed him. Expert opinion on the standard of care for a real estate lawyer in the defendant’s position could establish that the advice was such a breach.

We find no merit to the defendant’s claim that her advice in question more resembles casual advice from a knowledgeable acquaintance than conduct within her performance as an attorney. According to the plaintiff’s first amended complaint, construed in his favor, the advice in question was offered as part of the attorney-client relationship, when the defendant was representing him in a real estate matter. It was clearly in the nature of the service for which clients rely on their real estate legal representation. Also, construed to favor the plaintiff, it was in the nature of a guarantee akin to that alleged in Foremost.

We find that the plaintiff’s first amended complaint’s count IV adequately alleged an attorney malpractice claim that should not have been dismissed for legal insufficiency. The plaintiff was entitled to present evidence both on the standard of care due him and on whether' the defendant’s advice violated that standard. In so finding, we note that for the first time on appeal, the defendant asserts the additional claim that the plaintiff’s tort theory in count IV is not recognized as a cause of action for legal malpractice. She relies on her claim that it seeks only the recovery of economic damages.

Without addressing the plaintiff’s reply argument that the defendant has waived this argument for failure to present it below, we note that the defendant’s sole authority is our supreme court’s October 31, 1991, decision in the case of Collins v. Reynard. She does not argue the underpinnings of the decision in Collins, but relies merely on its result. We note that after issuing its October 31 opinion, the supreme court granted rehearing in the case and has since issued a new opinion, reversing its October 31 decision (Collins, 154 Ill. 2d 48). Thus, we will not rely on the October 31 opinion to find that this dismissal was correct, and we find any further argument in this regard waived for the lack of further appellate presentation (see 134 Ill. 2d Rules 341(e)(7), (f)).

Based on the foregoing, we need not address the parties’ arguments regarding the court’s denial of the plaintiff’s motion to file a second amended count IV. Rather, we reverse and remand for further proceedings consistent with our opinion.

Reversed and remanded.

UNVERZAGT and BOWMAN, JJ., concurs.


author: JUSTICE McCULLOUGH

text:
    ROBERT SMITH, Plaintiff-Appellant, v. THE TOWN OF NORMAL et al., Defendants-Appellees (Rand Veerman, Defendant).
    Fourth District
    No. 4—92—0430
    Opinion filed December 23, 1992.

      Frank Miles, of Hayes, Schneider, Hammer, Miles & Cox, of Blooming-ton, for appellant.
    Wayne Karplus, Town Attorney, of Normal, for appellee Town of Normal.

      J. Todd Greenburg and Hannah R. Eisner, both of City of Bloomington Legal Department, of Bloomington, for appellee Zoning Board of Appeals of Town of Normal.
    Shelly Brenneman Carter, of Bloomington, for appellee Clinton Curtis.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The Zoning Board of Appeals of the Town of Normal (Board) sustained the determination made by the building commissioner of the Town of Normal (Commissioner) that the Town of Normal Zoning Code (Code) (Normal, Ill., Zoning Code ch. 15, §15.1—1 (1988)) required plaintiff Robert Smith (Smith) to change the lawful nonconforming use of his property from a rooming house to a single-family residence. Smith appeals, contending (1) the Board’s interpretation of the Code was contrary to the manifest weight of the evidence; (2) the applicable nonconforming-use provisions of the Code (Normal, Ill., Zoning Code ch. 15, §15.3—2 (amended Aug. 20, 1990), §15.4—6 (amended Apr. 15, 1991)) are void for vagueness; and (3) the Code, as interpreted and applied by the Board, Commissioner and circuit court is unconstitutional because it bears no direct and substantial relationship to the protection or promotion of the public health, safety and welfare. We affirm.

Smith owns a seven-bedroom house in Normal, Illinois, which he pm-chased in 1979 for $37,000 or $38,000. He rents this house to eight students at a rate of $985 per semester per student, which generates an income of approximately $16,000 a year. He also rents the house during the summer for approximately $1,000 to $1,200. Smith valued his house at approximately $65,000, based on four times the gross income from the tenants.

Smith’s house is located in an area zoned for single-family residences. However, section 15.3 — 2 of the Code states:

“A non-conforming use is any use of land, buildings or structures, which use is not permitted in the zoning district in which such use is located, but which use was permitted at the time such use was established.” (Normal, Ill., Zoning Code ch. 15, §15.3—2 (amended Aug. 20, 1990).)

Section 15.4—6(D)(1) of the Code provides that if a lawful use of a structure existed at the time the Code became effective but that use would now be prohibited under the Code, that use may continue under certain circumstances. (Normal, Ill., Zoning Code ch. 15, §15.4—6(D)(1) (amended Apr. 15, 1991).) Prior to the enactment of the Code, Smith’s use of the structure as a rooming house was permitted. Upon the Code’s enactment, the area was zoned for single-family residences, and Smith’s use of the structure as a rooming house became a lawful nonconforming use.

On August 14, 1991, a fire of suspicious origin occurred at Smith’s rooming house. The fire originated in the rear of the house where the north side of the rear deck joined to the exterior walls of the house. On the first floor of the house, there was flame damage to a three-foot-wide portion of the exterior wall extending the entire height of the first floor and there was flame damage to a portion of the first-floor kitchen ceiling. A “header joist” which extended through the kitchen between the first and second floors was flame damaged; however, it was not conclusively established that this header joist would need to be reinforced or replaced as a result of the fire. A three-foot-high “knee wall,” which bears the load of the northernmost roof of the house, had flame damage. A portion of the load-bearing exterior wall on the east side of the house on the second floor directly south of the knee wall was flame damaged. A “shed roof” extending over the first-floor kitchen was damaged and a portion of the roof was damaged by firemen cutting a ventilation hole in the roof. The testimony before the Board indicated that as few as 5 or as many as 18 studs would either have to be replaced or strengthened by nailing new studs to the flame-damaged studs. Smith estimated the cost of repairs to the structure at $4,000. The Board made a finding of fact that the cost of repairs to the structure caused by the fire did not exceed 50% of the fair cash market value of the structure. Smith was issued a building permit to repair the damage caused by the fire.

On September 4, 1991, the Commissioner wrote Smith a letter stating that his structure could no longer be used as a rooming house. Smith was told that by operation of law, the property had reverted to use as a single-family residence only. The Commissioner concluded that the structure could no longer be used as a rooming house because the fire at Smith’s property caused the need for replacement or reconstruction of the exterior bearing walls.

Smith filed a notice of appeal of that determination with the Board on September 11, 1991. On October 17, 1991, the Board held a hearing at which testimony was presented regarding the extent of the fire damage and the amount of work necessary to repair the building. The Board adopted its findings of fact on December 12, 1991, in which it concluded that the Commissioner properly interpreted the Code. The Board noted that Clinton Curtis, a defendant herein, owns a house near Smith’s property and testified that his property, a single-family residence, was valued at $17,000.

The Board made a specific finding that the first-floor exterior wall directly north of the rear entrance, the knee wall on the exterior of the second floor, and the exterior wall on the east side of the house on the second floor directly south of the knee wall are load-bearing walls, and that the header joist above the first-floor kitchen is a load-bearing component of the structure. The Board found that the Commissioner did not misunderstand the factual situation giving rise to the action from which the appeal was taken. Moreover, the Board found he did not misinterpret or erroneously apply the provisions of the Code in his ruling that the repairs to the load-bearing walls on Smith’s property constituted reconstruction under the provisions of the Code and, therefore, Smith’s property could no longer be used as a rooming house. One member of the Board disagreed and would overrule the Commissioner by finding that the proposed work to Smith’s property constituted ordinary repairs under section 15.4—6(F) of the Code. Normal, Ill., Zoning Code ch. 15, §15.4—6(F) (amended Apr. 15,1991).

Smith filed his complaint for administrative review of the Board’s decision in the circuit court on January 8, 1992. The circuit court affirmed the Board’s decision construing the Code. Defendant timely filed his notice of appeal.

Smith first contends the Board’s decision sustaining the Commissioner’s interpretation of the Code was against the manifest weight of the evidence. Specifically, Smith alleges section 15.4—6(D)(4), rather than section 15.4—6(D)(1) of the Code, applies in this situation. (Normal, Ill., Zoning Code ch. 15, §§15.4—6(D)(4), (D)(1) (amended Apr. 15, 1991).) Furthermore, Smith argues the proposed work on the building constitutes “repair of a structural element” rather than “reconstruction of a structure” and that this work is “ordinary repair” under the Code.

Generally, in construing municipal ordinances, the same rules are applied which govern construction of statutes. (In re Application of County Collector (1989), 132 Ill. 2d 64, 72, 547 N.E.2d 107, 110.) In construing a zoning ordinance, the intention of the drafters should be given effect by considering the common accepted usage of the words employed, the context in which they are employed, and the general structure of the ordinance. Dixon v. City of Monticello (1991), 223 Ill. App. 3d 549, 555, 585 N.E.2d 609, 614.

Because agencies can make informed judgments on the issues based upon their experience and expertise, it is generally recognized that courts will give substantial weight and deference to an interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute. (Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 152, 447 N.E.2d 295, 300.) A court may not overturn the decision of an administrative body unless the authority of the administrative body was exercised in an arbitrary or capricious manner or the decision is against the manifest weight of the evidence. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088.) Court orders or administrative decisions may be upheld on any grounds required by the record, even though those grounds were not the ones which were the basis of the decision. Rauschenberger v. Board of Education, Heritage Community Unit School District No. 8 (1991), 223 Ill. App. 3d 412, 416, 584 N.E.2d 1050, 1053-54.

Section 15.4 — 6 of the Code states:

“[I]t is the intent of this Code to permit these non-conformities to continue until they are removed but not to encourage their survival under the terms of this Code. It is further the intent of this Code that non-conformities shall not be enlarged upon, expanded, or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district, except as provided in subsection G.” (Normal, Ill., Zoning Code ch. 15, §15.4—6 (amended Apr. 15,1991).)

Thus, this intent must be kept in mind when construing and interpreting the various sections of the Code.

The Board concluded that section 15.4—6(D)(1) of the Code applied to this situation. That section provides:

“(D) Non-Conforming Uses of Structures. If a lawful use involving individual structures with a fair cash market value cost of $1,000 or more, or of structure and land in combination, exists at the effective date of adoption of amendment of this Code that would not be allowed in the district under the terms of this Code, the lawful use may be continued as long as it remains otherwise lawful, subject to the following provisions:
(1) No existing structure devoted to a use not permitted by this Code in the district in which it was located shall be enlarged, extended, constructed, reconstructed, moved, or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located.”

Normal, Ill., Zoning Code ch. 15, §15.4—6(D)(1) (amended Apr. 15, 1991).

On the other hand, Smith asserts that section 15.4 — 6(D)(4) of the Code applies in this situation. That section states:

“(4) Where non-conforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the non-conforming status of the land. Destruction for the purpose of this subsection is defined as damage to an extent of more than fifty (50) percent of the fair cash market value at the time of destruction.” Normal, Ill., Zoning Code ch. 15, §15.4—6(D)(4) (amended Apr. 15,1991).

Smith contends his nonconforming use is that of “a structure and premises in combination.” If that is true, he reasons, destruction sufficient to eliminate the nonconforming use of the structure has to be to an extent of more than 50% of the fair cash market value of the structure. The parties agreed that the damage to his house did not exceed 50% of the fair cash market value of the structure; hence, “destruction” sufficient to remove the right to operate the house in a nonconforming way has not occurred.

In support of his argument that section 15.4—6(D)(4) of the Code applies, Smith notes that the building is “permanently affixed to the ground” (Normal, Ill., Zoning Code ch. 15, §15.3—2 (amended Aug. 20, 1990)), which is indicative of use of land and structure together. Smith further points to the facts that the building permit which authorized the work to be done to remedy the fire damage contains the legal description of the property, the permanent identification number, and lot dimensions. Finally, Smith states he was required to improve a parking lot to continue the nonconforming use of the structure as a rooming house. He concludes all these things evidence the fact that his nonconforming use of the structure is that of a “structure and premises in combination.”

The Town of Normal (Town) contends section 15.4—6(D)(4) of the Code is inapplicable to Smith’s property. It alleges that that section affects the nonconforming use of land upon the destruction of a structure containing a nonconforming use. The Town asserts that if a store with the parking lot in the front yard in a residential district existed, the store would be a nonconforming use of a structure and the parking lot would be a nonconforming use of the land. If the store is destroyed (as defined by this section), the nonconforming use of the land (i.e., the parking lot), must also cease.

The Town’s interpretation of section 15.4—6(D)(4) of the Code is more persuasive. The fact that Smith’s building permit contains a legal description and lot dimensions simply does not make his nonconforming use one of “structure and premises in combination.” (Normal, Ill., Zoning Code ch. 15, §15.4—6(D)(4) (amended Apr. 15, 1991).) His use of the land is really only incidental to the nonconforming use of the structure. To accept his argument, that, because the structure is permanently affixed to the ground the use of the structure is “a combination of premises and structure,” would create absurd results; every structure is permanently affixed to the land and therefore section 15.4—6(D)(1) of the Code would be meaningless. The Board properly concluded that section 15.4—6(D)(1) of the Code applied rather than section 15.4—6(D)(4) of the Code.

Thus, we must determine whether the Board correctly concluded that the work Smith intends to do on the structure is prohibited by section 15.4—6(D)(1) of the Code so that he loses his right to continue to use the structure in a nonconforming manner. On appeal before the Board, the Town argued that what Smith proposed to do constituted “reconstruction” which is forbidden by this section. On appeal here, in addition, the Town alleges that this work amounts to “structural alteration,” which is also prohibited by this section.

“Construction” is defined in the Code as “the act of adding an addition to an existing structure or the erection of a new principal or accessory structure on a lot.” (Normal, Ill., Zoning Code ch. 15, §15.3—2 (amended Aug. 20, 1990).) Although not defined in the Code, “reconstruction” means “the action of reconstructing or state of being reconstructed,” “something reassembled (as from parts) into its original form or appearance.” (Webster’s Third New International Dictionary 1898 (1986).) “Reconstruct” means “to construct again: *** to build again; *** to make over”; synonyms include rebuild, repair or reassemble. (Webster’s Third New International Dictionary 1897 (1986).) “Structural Alteration” is defined in the Code as “any change, other than incidental repairs, which would prolong the life of the supporting members of a building, such as the addition, removal or alteration of bearing walls, columns, beams, girders or foundations.” Normal, Ill., Zoning Code ch. 15, §15.3—2 (amended Aug. 20,1990).

The work Smith proposes to do includes replacing or adding new studs to those which were flame damaged, repairing the kitchen ceiling joist and fixing the ventilation hole cut in the roof by the firemen. Specifically, he must replace or reinforce studs in load-bearing walls to continue the life of these walls. Without reinforcing the studs which were flame damaged, the existing walls cannot safely support the ceilings they are meant to support. Because what Smith intends to do will “prolong the life of the supporting members of a building,” it is a structural alteration and he cannot do this work without losing his right to operate the structure in a nonconforming manner. Normal, Ill., Zoning Code ch. 15, §15.3—2 (amended Aug. 20,1990).

Smith also asserts that this work constitutes “ordinary repair” which is allowed by the Code. Section 15.4—6(F) states:

“(F) Repairs and Maintenance. On any non-conforming structure or portion of a structure containing a non-conforming use, ordinary repairs, or repair or replacement of non-bearing walls, fixtures, -wiring or plumbing may be made to an extent not exceeding fifty (50) percent of the fair cash market value of the non-conforming structure provided that the cubic content existing when it became non-conforming shall not be expanded.” (Normal, Ill., Zoning Code ch. 15, §15.4—6(F) (amended Apr. 15, 1991).)

Smith contends he can make ordinary repairs which do not exceed 50% of the fair cash market value of the structure without losing his right to use the property in a nonconforming manner. The Town alleges he cannot do this work because (1) it is not ordinary repair; and (2) since the Code allows repair or replacement of nonbearing walls, it specifically prohibits replacement or repair of load-bearing walls. Since he intends to repair bearing walls, he cannot do the work without losing the right to continue the nonconforming use of the structure. The Town further asserts that ordinary repairs may not be made to bearing walls.

We need only address the Town’s second assertion. Section 15.4—6(F) of the Code specifically allows repair of nonbearing walls. The allowance of repair or replacement to nonbearing walls excludes the repair or replacement of load-bearing walls. It is a fundamental principle of statutory construction that express mention of one thing in a statute excludes all other things not mentioned. Welch v. Johnson (1992), 147 Ill. 2d 40, 588 N.E.2d 1119.

“Repair” is defined in the Code as “any change that is not construction, removal or alteration. This would include a simple and minor mending to bring an element of a structure back to its original condition. It assumes that minimal expense and effort need be incurred to complete the repair.” (Normal, Ill., Zoning Code ch. 15, §15.3—2 (amended Aug. 20, 1990).) Smith alleges that what he proposes to do will merely “bring an element of the structure back to its original condition” because adding the new studs will bring the load-bearing walls back to their prefire condition. He further notes that in 1988 he was allowed to remove studs from a load-bearing wall that is now flame damaged and insert a set of French doors. He asserts that this was “ordinary repair” which he was allowed to make. He claims that since he previously made a change in a load-bearing wall without losing the right to continue the nonconforming use of the structure, the Town is now estopped from prohibiting this work.

The Town argues that it is not estopped because it allowed Smith to do work on a load-bearing wall in 1988. The Town further alleges the work proposed here is not “ordinary” and is more than “simple and minor mending.” The Town asserts that the work will require more than the minimal expense and effort to complete the repairs and that he can only repair or replace nonbearing walls.

Section 15.4 — 6(F) of the Code does not allow Smith to do this work without losing his right to operate the structure in a nonconforming manner. Smith proposes to do work on bearing walls. Since the work is to be done on bearing walls, it cannot be characterized as ordinary repair. Further, although what he proposes to do may constitute “repair,” as that term is defined in the Code, it is not authorized by this section as it involves bearing walls. This interpretation is in accordance with the intent of the Code to allow the continuation of nonconforming uses but not to encourage their survival. The repair or replacement of a bearing wall would encourage the survival of a structure.

Finally, Smith’s contention that because the Town allowed him previously to remove studs from a bearing wall and replace a window with French doors, it is now estopped from allowing these changes is without merit. As the Town notes, the work done in 1988 by Smith constituted an “Alteration,” defined in the Code as “any change in size, shape or character of a building or structure or change in the use thereof.” (Normal, Ill., Zoning Code ch. 15, §15.3—2 (amended Aug. 20, 1990).) The work done in 1988 was merely a change in the character of the building and did not do anything to prolong or encourage the life of the structure. Rather, it merely enhanced or changed the character of the building by removing a window and adding a set of French doors. On the other hand, the work proposed by Smith here does not alter the character of the building but specifically is designed to prolong the life of the structure.

In conclusion, the Board’s decision was not against the manifest weight of the evidence. The proposed work constitutes “Structural Alteration” prohibited by the Code. (Normal, Ill., Zoning Code ch. 15, §15.3—2 (amended Aug. 20, 1990).) The proposed work cannot be characterized as “ordinary repairs” or “repair or replacement of non-bearing walls” because it involves work on bearing walls and thus is not permitted by section 15.4—6(F) of the Code. (Normal, Ill., Zoning Code ch. 15, §15.4—6(F) (amended Apr. 15, 1991).) Therefore, because the work is not allowed by the Code, Smith loses the right to the lawful nonconforming use of the structure as a rooming house.

Next, Smith contends the “applicable nonconforming use provisions” of the Code are void for vagueness. Smith alleges that reasonable people can only guess at what the Code permits or prohibits when a fire causes some damage to a bearing wall and a structure operating a nonconforming use.

A zoning ordinance is presumed valid, and the burden is upon the party attacking the ordinance to establish its invalidity by clear and convincing evidence. (Harris Trust & Savings Bank v. Duggan (1983), 95 Ill. 2d 516, 531, 449 N.E.2d 69, 76.) An ordinance is unconstitutionally vague when persons of common intelligence must necessarily guess at its meaning. In other words, the ordinary person must be capable of appreciating, from the language of the ordinance or statute, how he will be affected by its operation. (Broadrick v. Oklahoma (1973), 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908; Union National Bank & Trust Co. v. Village of New Lenox (1987), 152 Ill. App. 3d 919, 922, 505 N.E.2d 1, 3.) An ordinance is void if it is indefinite and uncertain and its precise meaning cannot be ascertained. (Hahnenkamp v. Madison County (1989), 183 Ill. App. 3d 76, 85, 538 N.E.2d 1204, 1210.) If there is a doubt as to the construction to be given to a particular provision in an ordinance, the doubt must be resolved in favor of an interpretation which supports the ordinance. Lakin v. City of Peoria (1984), 129 Ill. App. 3d 651, 656, 472 N.E.2d 1233, 1237.

Neither section 15.4—6(D)(1) nor 15.4—6(F) of the Code is unconstitutionally vague. Section 15.4—6(D)(1) of the Code lists the type of work prohibited on structures containing a nonconforming use. That section provides that a structure devoted to a nonconforming use cannot be “enlarged, extended, constructed, reconstructed, moved, or structurally altered.” (Normal, Ill., Zoning Code ch. 15, §15.4—6(D)(1) (amended Apr. 15, 1991).) Of those prohibited activities, “Construct[ed],” “Removal” and “Structurally Altered” are specifically defined in the Code. (Normal, Ill., Zoning Code ch. 15, §15.3—2 (amended Aug. 20, 1990).) The remaining words are common and are capable of being understood by persons of common intelligence. The gist of this section, when read with the provisions regarding the intent of the Code to not allow any work that will prolong the life of nonconforming structures, is capable of being understood by persons of common intelligence.

Likewise, section 15.4—6(F) of the Code is equally clear. That section allows for ordinary repairs or repair or replacement to nonbearing walls, fixtures, wiring or plumbing, provided that these repairs do not exceed 50% of the fair cash market value of the structure and do not expand the cubic content of the structure. “Repair” is defined in the Code and examples are given. “Replace” is a common word capable of being understood by persons of ordinary intelligence. Again, this section is not vague when read in conjunction with the section regarding the purpose of the Code. Repairs that are in the usual course of events, i.e., a leaky faucet or broken window, can be made for the comfort and safety of the tenants. Similarly, repairs to the wiring or plumbing or nonbearing walls (i.e., elements of the structure that are not necessary to the continued existence of the structure) are allowed. This carries out the intent of the Code to allow the continuation of these structures but not encourage their survival. Repairs necessary to an extent of more than 50% of the fair cash market value of the house or to the walls necessary to the survival of the structure permit more than the continuation of the structure; such repairs would encourage the survival of the structure. The drafters of the Code intended that if a structure becomes dilapidated such that repairs exceeding 50% of the fair cash market value are necessary, the nonconforming use should cease.

Therefore, neither section 15.4 — 6(D)(1) nor section 15.4 — 6(F) of the Code is void for vagueness. Both are capable of being understood by persons of common intelligence.

Finally, Smith contends the Code is unconstitutional as applied to his property because it bears no direct and substantial relationship to the protection of the public health, safety and welfare. The Town contends the Code is rationally related to the public health, safety and welfare. This relationship is found in the applicable Code provisions regarding the intent of the Code, “to foster the use and development of land in an orderly manner ***. *** [T]o regulate and manage land use in order to implement sound comprehensive planning policies, and to protect individual land owners and general neighborhoods from incompatible and detrimental land uses.” Normal, Ill., Zoning Code ch. 15, §15.2—1 (1988).

A nonconforming use is a property right of which the owner cannot be unreasonably and arbitrarily deprived. (County of Cook v. Renaissance Arcade & Bookstore (1988), 122 Ill. 2d 123, 141, 522 N.E.2d 73, 80.) Enacting a zoning ordinance is a legislative function, and once a legislative body has enacted legislation in response to a need to protect and promote the general welfare of its citizens, there is a presumption that the enactment is a valid exercise of police power. The zoning ordinance must not only bear a reasonable relationship to the protected public interest, but the means utilized must also be a reasonable method for accomplishing the objective. (Suhadolnik v. City of Springfield (1989), 184 Ill. App. 3d 155, 164-65, 540 N.E.2d 895, 900.) Even though the right to a nonconforming use is a property right, a governmental body may restrict a nonconforming use as may be necessary for the public health, comfort, safety or welfare. (Furlong v. City of Chicago (1986), 142 Ill. App. 3d 347, 350, 491 N.E.2d 1301, 1303.) The one challenging the ordinance bears the burden of demonstrating its invalidity. (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 179-80, 354 N.E.2d 899, 903.) A zoning ordinance may be valid in general, but invalid as to a particular piece of property. Suhadolnik, 184 Ill. App. 3d at 165, 540 N.E.2d at 901.

The elimination of nonconforming uses is a legitimate goal. (Gilmore v. County of Du Page (1991), 209 Ill. App. 3d 66, 71, 567 N.E.2d 1111, 1115.) The Code specifically states the drafters intended to allow the continuation of nonconforming uses of these structures but not to encourage their survival. The evidence indicated Smith’s rooming house is located in a residential district which consists mainly of elderly, longtime residents. There were allegations presented to the Board that the tenants of Smith’s house were loud, disruptive and possibly selling drugs from the house. The Code also has the stated intent of protecting general neighborhoods from incompatible and detrimental land uses. This neighborhood is zoned for single-family residences and a rooming house holding eight students is certainly incompatible with that type of neighborhood. The restrictions on the type of work that can be done on structures containing a lawful nonconforming use advance the intent of the Code to gradually eliminate these nonconforming uses. By prohibiting certain kinds of improvements on structures containing nonconforming uses, as those structures age and become in need of these types of work, the need for the extensive repair will effectuate the elimination of the nonconforming use.

Thus, prohibiting certain types of repair or extensive repair on structures devoted to a nonconforming use is a reasonable method for eliminating such nonconforming uses over time. The elimination of these nonconforming uses bears a rational relationship to the public interest in protecting landowners in general neighborhoods from incompatible and detrimental land use. Thus, these sections of the Code are not unconstitutional as applied to Smith’s property.

For the foregoing reasons, the Board’s decision was not against the manifest weight of the evidence.

Affirmed.

COOK and GREEN, JJ., concur.


author: JUSTICE GREEN

text:
    SARAH BUSH LINCOLN HEALTH CENTER, Plaintiff-Appellee, v. SUZANNE S. PERKET, Defendant-Appellant.
    Fourth District
    No. 4—92—0448
    Opinion filed December 17, 1992.
    Rehearing denied January 19,1993.

      Auler Law Offices, of Urbana, for appellant.
    William J. Warmoth, of Brainard, Bower & Kramer, of Charleston, for appellee. -
   JUSTICE GREEN

delivered the opinion of the court:

On April 27, 1992, plaintiff Sarah Bush Lincoln Health Center, an Illinois not-for-profit corporation, filed a verified complaint in the circuit court of Coles County against defendant, Suzanne S. Perket, seeking preliminary and permanent injunctive relief to uphold a covenant against competition in an employment contract between the parties. On the same date, plaintiff filed a motion for the preliminary injunction requested in the complaint. (Ill. Rev. Stat. 1991, ch. 110, par. 2—615.) On May 15, 1992, defendant filed a motion to dismiss plaintiff’s motion for the preliminary injunction and the complaint. After a hearing, the court entered an order on May 19, 1992, granting a preliminary injunction against certain activities of plaintiff upon filing of a $50,000 bond. On May 20, 1992, such a bond was filed and approved.

The complaint alleged that (1) on or about February 27, 1991, the parties entered into a contract whereby defendant was employed as plaintiff’s director of physical medicine and rehabilitation at plaintiff’s hospital; (2) incident to the contract was the following provision:

“During your employment and for a period of one year thereafter, you agree that you shall not, directly or indirectly, invest in, own, manage, operate, control, be employed by, participate in, or be connected in any manner with the ownership, management, operation or control of any person, firm, or corporation engaged in competition with Hospital in providing health services or facilities within Coles County including the provision for Physical Medicine and Rehabilitation services in a private office, without prior written consent of the Hospital”;

(3) defendant’s employment with plaintiff was terminated on or about September 6, 1991; (4) thereafter “defendant engaged in the business of providing physical medicine and rehabilitation services in Coles County in competition with the plaintiff”; (5) “[a]s a result of defendant’s breach of the covenant contained in her contract with plaintiff, the plaintiff has been severely and irreparably damaged”; (6) various warnings and demands to cease and desist were made to defendant; (7) defendant’s conduct has caused “a present and continuing interference with economic relationships between plaintiff and” others; and (8) unless defendant is enjoined, “plaintiff will suffer irreparable injury for which it has no adequate remedy at law.”

The preliminary injunction prohibited defendant from “directly or indirectly providing physical medicine and rehabilitation services in Coles County, Illinois, during the pendency of this litigation until September 6, 1992, or until further order of court.”

On May 28, 1992, defendant filed in the circuit court a document entitled “Notice of Appeal.” It purported to be an appeal of the May 19, 1992, order “denying the Defendant’s Motion to Dismiss and granting the Plaintiff’s Motion for Temporary Injunction.” The document purported to be filed “pursuant to Supreme Court Rule 303.” (See 134 Ill. 2d R. 303.) Plaintiff maintains this document was insufficient to vest us with jurisdiction and requests we dismiss the purported appeal. The problem arises because Supreme Court Rule 303 (134 Ill. 2d R. 303) states on its face that it is applicable to final judgments and we have no final judgment here. The granting of the preliminary injunction was appealable pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)) as an interlocutory order for an injunction. The purported denial of the motion to dismiss would have been an interlocutory order appealable only upon joint action of the circuit court and this court pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), which did not take place here.

Actually, the May 19, 1992, order made no reference to the sufficiency of the complaint and did not pass upon that issue. Thus, we are faced with the question of whether we can proceed to review an order appealable under Supreme Court Rule 307 when the notice of appeal states that the appellant is proceeding under Supreme Court Rule 303. We hold that we do have jurisdiction. Cases cited by plaintiff do not hold to the contrary.

In Servio v. Paul Roberts Auto Sales, Inc. (1991), 211 Ill. App. 3d 751, 755, 570 N.E.2d 662, 664, cited by defendant, the court recited dictum indicating that when “jurisdiction is far from clear, failure to file a jurisdictional statement may be grounds for dismissal of an appeal.” A somewhat similar statement was made in Voiland v. Warsawsky (1989), 182 Ill. App. 3d 332, 334, 538 N.E.2d 764, 765-66, where an appeal was dismissed for lack of an appealable order. Appellant’s brief here also lacked a proper jurisdictional statement as required by Supreme Court Rule 341(e)(4)(ii) (134 Ill. 2d R. 341(e)(4)(ii)). However, “[t]he appeal is initiated by filing a notice of appeal. No other step is jurisdictional.” (134 Ill. 2d R. 301.) Plaintiff admits that an interlocutory appeal has been permitted when the nature of the appeal is not properly designated in the notice of appeal. (City of Chicago v. First Bank (1988), 178 Ill. App. 3d 321, 533 N.E.2d 424.) The only action taken by the order from which appeal is sought was to grant a preliminary injunction. We take this case as an interlocutory appeal from that order pursuant to Supreme Court Rule 307. We deny the motion to dismiss the appeal.

On the merits of the appeal, defendant maintains that plaintiff’s allegations were conclusory and combined two separate and contradictory arguments. She also asserts that (1) the court erred in denying her time to file an answer to the complaint so that she could put on evidence in opposition to the request for relief, and (2) she apparently contends we should grant her damages pursuant to the bond filed by plaintiff. Finally, she contends that matters which occurred at the hearing on the preliminary injunction denied her due process of law.

The parties agree that, as the court has stated, in order to be entitled to a preliminary injunction, a petitioner must show (1) it has a clearly protectable right which needs protection; (2) success of the underlying suit on the merits is likely; (3) it has no adequate remedy at law; (4) without interlocutory relief, it will suffer irreparable damage; and (5) the benefits of granting the preliminary injunction will exceed the injury to the defendant. (Ron Smith Trucking, Inc. v. Jackson (1990), 196 Ill. App. 3d 59, 63, 552 N.E.2d 1271, 1275.) The parties also do not dispute that one element of a cause of action to enforce a restrictive covenant in an employment contract is an apparent interest in the employer which is protected by the covenant. Defendant maintains that the complaint sets forth that interest here, if at all, in a manner too conclusory.

In support of her contention that plaintiff’s showing of protectable interest is insufficient, defendant cites Southern Illinois Medical Business Associates v. Camillo (1989), 190 Ill. App. 3d 664, 546 N.E.2d 1059, and Instrumentalist Co. v. Band, Inc. (1985), 134 Ill. App. 3d 884, 480 N.E.2d 1273. In Southern Illinois Medical, the court reversed a preliminary injunction awarded a medical laboratory to enforce a covenant against competition agreed to by its former employee because of a lack of showing of a protectable interest. That court concluded that a showing of a near permanent relationship between the employer and the plaintiff’s customers and the revelation of trade secrets to the employee was necessary. In Instrumentalist (134 Ill. App. 3d at 892, 480 N.E.2d at 1279), a similar rule was found to have been met.

In the last 20 years, the supreme court has not dealt with the question of whether an employer has a sufficient proprietary interest in its customers, clients, or patients to justify enforcement of covenants in contracts of employment which restrict competition. In Lee/O’Keefe Insurance Agency, Inc. v. Ferega (1987), 163 Ill. App. 3d 997, 516 N.E.2d 1313, this court affirmed a circuit court’s order denying a preliminary injunction which inter alia would have prohibited a former employee of an insurance agency from competing with a former employer within a 100-mile radius of the former employer’s place of business. The covenant against competition for which enforcement was sought would have prohibited competition by the former employee for a period of five years within the 100-mile radius. The Ferega court also affirmed a denial of a preliminary injunction to enforce an additional covenant against use of disclosure of the list of the former employer’s customers.

In Ferega, the principal reason for the affirmance in regard to the denial of injunctive relief as to the covenant against competition was that the 100-mile radius and five-year term were unreasonable. (House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 225 N.E.2d 21.) However, citing Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 390 N.E.2d 68, this court also stated:

“A restrictive covenant may be held enforceable only if the time limit and geographic scope are reasonable, trade secrets or confidential information are involved, and the restriction is reasonably necessary for the protection of a legitimate business interest.” (Emphasis added.) Ferega, 163 Ill. App. 3d at 1006, 516 N.E.2d at 1319.

In Image Supplies, Inc. (71 Ill. App. 3d at 713, 390 N.E.2d at 71), that court distinguished the proof necessary to show a sufficient interest protected by a restrictive covenant in an ordinary case, where the employee is in such a position as a salesman, from that necessary in cases such as Cockerill v. Wilson (1972), 51 Ill. 2d 179, 281 N.E.2d 648, and Canfield v. Spear (1969), 44 Ill. 2d 49, 254 N.E.2d 433, where the employees giving the covenant were a veterinarian and a physician, respectively. In Image Supplies, Inc. (71 Ill. App. 3d at 714, 390 N.E.2d at 71), the court pointed out that in Nationwide Advertising Service, Inc. v. Kolar (1973), 14 Ill. App. 3d 522, 528, 302 N.E.2d 734, 738, it had stated:

“ ‘The very nature of the professions in which [the plaintiffs in Cockerill and Canfield] were engaged indicates that they could justifiably anticipate a permanent or near-permanent relationship with the clientele.’ ”

The Cockerill court made short work of deciding whether a protectable interest was shown by the employer. It stated:

“In considering this issue we must consider that the interest plaintiff sought to protect by the covenant was his interest in his clients. (House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32[, 225 N.E.2d 21].) In bringing the defendant into the association plaintiff was thereby bringing him in contact with a clientele which plaintiff had established over a period of years. Plaintiff was naturally interested in protecting his clients from being taken over by defendant as a result of these contacts.” (Cockerill, 51 Ill. 2d at 184, 281 N.E.2d at 651.)

The situation of the defendant here was more nearly like that of the professionals in Cockerill and Canfield and the showing of a proper protectable interest was inherent in the relationships alleged in the complaint. The time and place restrictions of the preliminary injunction here were clearly reasonable.

Defendant further complains that plaintiff made no sufficient showing that she was in breach of the covenant, but we deem the allegation she was engaging in the business of providing physical medicine and rehabilitation service in Coles County was sufficient. We likewise find the allegation of damages sufficient. We also consider the irreparable nature of the injury inherent in the situation alleged. Defendant maintains that the request for damages made by plaintiff negates the irreparable nature of the alleged injury and the lack of a remedy at law. She cites no supporting cases and we are aware of none. Likewise, we find no merit in defendant’s complaint that the complaint is erroneously duplicative by asking for both injunctive and monetary relief. If separate counts are necessary, that can be required but any duplication does not preclude interlocutory relief.

We hold the verified complaint set forth, with enough detail, sufficient facts to show a likelihood of success on the merits and supported the grant of interlocutory relief.

We also hold that the court did not breach its discretion in denying defendant a continuance to file an answer. Defendant relies upon the somewhat analogous case of Olympic Federal v. Witney Development Co. (1983), 113 Ill. App. 3d 981, 447 N.E.2d 1371. There, pursuant to a complaint for mortgage foreclosure, the plaintiff requested an interlocutory order placing plaintiff in possession. The defendant moved to strike the motion as insufficient and that motion was denied. That defendant then asked for a time to file an answer to the motion so that an evidentiary hearing could be held on the motion. That request was denied and the court then entered the interlocutory order for possession. On appeal, the appellate court reversed, holding that defendant should have been given time to file an answer.

We recognize analogy to Olympic Federal. However, allowance of substantial time to file an answer delays the period of time when a party needing interlocutory relief can obtain it. Here, the transcript of the proceedings indicated that defendant wanted time to take discovery before proceeding to answer. Delay for discovery is very defeating of interlocutory relief. A respondent to a request for interlocutory relief wishing to put on evidence in opposition to the request should be prepared to file an answer if an attack on the sufficiency of the request for interlocutory relief fails. If, as here, the answer required would be an answer to the complaint, the answer filed would not prevent the defendant from later amending the answer before a hearing on the merits.

As a separate argument, defendant contends that the injunction here creates a restriction of trade violative of public policy, citing Frazier v. Dettman (1991), 212 Ill. App. 3d 139, 569 N.E.2d 1382, and Tyler Enterprises of Elwood, Inc. v. Shafer (1991), 214 Ill. App. 3d 145, 573 N.E.2d 863. We conclude that the doctrine of the supreme court cases of Coclcerill and Canfield justifies the injunctive relief granted and those cases make no inroads on that precedent. Defendant’s request for recovery on the injunction bond cannot be granted upon an affirmance of the injunction and would, in any event, be a matter for original determination in the trial court. Defendant also contends the court acted improperly in considering a legal theory presented at a judicial seminar. This assertion is totally devoid of merit.

We affirm.

Affirmed.

KNECHT and LUND, JJ., concur.