text:
    RICK WEITEKAMP, d/b/a R.W. Refrigeration Distribution Company, Plaintiff-Appellee, v. CARROLL E. LANE, Indiv. and d/b/a C & L Company, Defendant-Appellant.
    Fourth District
    No. 4 — 93—0251
    Opinion filed September 9, 1993.

      W. Loren Thomson and Kathleen Butler, both of Thomson & Weintraub, of Bloomington, for appellant.
    Duane D. Young, of Heckenkamp, Simhauser & LaBarre, P.C., of Springfield, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

On February 17, 1993, a McLean County circuit judge granted plaintiff Rick Weitekamp’s request for a preliminary injunction against his former employee, defendant Carroll Lane. Lane was enjoined from (1) engaging in sales and service of refrigeration units in McLean County businesses operating as purveyors of food; (2) representing in any way that C & L Company, which the trial judge concluded Lane sold to Weitekamp, is anything but part of Weitekamp’s company, R.W. Refrigeration; and (3) using or permitting the use of his name or photograph in any advertising to indicate he is in the business of performing commercial refrigeration work for purveyors of food in McLean County. The injunction also applied to purveyors of food outside McLean County if the purveyor had a place of business within McLean County. The injunction expires on March 1, 1994, or when the case is determined on its merits.

Lane contends the trial judge erred by concluding C & L, and not merely its assets, was sold to Weitekamp. Lane argues the preliminary injunction was improper because Weitekamp did not establish a protectable interest in C & L Company or the transfer of C & L’s goodwill by Lane to Weitekamp. He next contends the parties’ covenant not to compete is unenforceable even as modified by the trial court. He also contends Weitekamp did not establish the injunction was necessary because of emergency circumstances or that serious harm would result absent the relief. Finally, Lane contends Weitekamp did not demonstrate it was likely he would succeed on the merits. We disagree and affirm.

I. Facts

Lane has been a refrigeration mechanic since 1970. In 1973 he began operating his own business, C & L Company. He serviced commercial refrigeration units in grocery stores, restaurants, and taverns. By 1990 he had approximately 100 to 150 customers, and 99% of his business was in McLean County. Among Lane’s customers were Jewel Foods, Holiday Inn, Ramada Inn, Brown’s Chicken, Bob Knapp’s, Perkins, Wendy’s, McDonald’s, and local bars and restaurants. His business did not extend to other metropolitan areas in Illinois or nearby States.

Weitekamp and Lane had a conversation during 1989 or 1990 during which Lane suggested selling his business to Weitekamp and working within Weitekamp’s operation. Weitekamp asked Lane whether he would be interested in performing the 90-day service work for Weitekamp at locations in Bloomington, Illinois. Lane responded, “ ‘[w]ell, Rick, I would be better off just to sell out and join forces with you.’ ”

Lane suggested Weitekamp “ ‘come up with a figure.’ ” Weitekamp offered $35,000 or $45,000. Lane returned a few days later and said, “ T will take fifty,’ ” to which Weitekamp responded, “ T will give you fifty for the business.’ ” According to Weitekamp they agreed the accounts Lane currently serviced would be turned over to R.W. Refrigeration.

Weitekamp testified he was most interested in purchasing Lane’s business because Lane had been servicing two Eagle food stores, three Jewel food stores, Diana Foods, a Convenient Mart, and a few meat markets. He was not as interested in servicing “some” of the restaurants and taverns. He indicated he did not like to service taverns.

The parties signed a written agreement entitled “sales agreement.” The parties disagree about whether Lane sold only assets or his entire business to Weitekamp. As part of their agreement, Weitekamp agreed to employ Lane for at least two years and to pay him union scale. Lane agreed not to compete in the commercial refrigeration or air conditioning business within a 300-mile radius for 10 years. He did not supply Weitekamp with a customer list.

Weitekamp had no interest in retaining or acquiring the name of Lane’s company, C & L. Weitekamp testified, “we were making it R.W. Refrigeration, and [the] name C & L [C]ompany was no longer going to be in existence.” According to Lane, he asked Weitekamp if he wanted to use C & L’s name and Weitekamp responded he did not know the name so he did not want it.

In May 1992, more than two years after their agreement, Lane voluntarily quit his employment with Weitekamp. After Lane departed from Weitekamp’s employment, Weitekamp learned about letters sent to some of his customers which stated C & L Company was now working with Maitland Mechanicals, Inc. (hereinafter Maitland). Lane’s signature was on the letter. Maitland had also advertised this relationship in a leaflet which included Lane’s picture and indicated C & L was a division of Maitland. Lane testified this letter was distributed to a list of potential customers selected from the telephone book. During the two years Lane was employed by Weitekamp, Lane had access to, and called upon, Weitekamp’s customers. These customers extended throughout Dlinois and included some which Weitekamp had before the parties’ “sales agreement.”

Weitekamp testified he lost Eagle food stores’ account, valued at $400,000 gross annually, after Lane went to work for Maitland. Weitekamp had been servicing 15 Eagle stores: two in Bloomington, three in Decatur, three in Champaign, one in Jacksonville, three in Springfield, and three in Watseka. Weitekamp testified further the reason he was given for having lost the service contract was because one of his workers had not paid for a quart of milk which he consumed and because Lane had said bad things about R.W. Refrigeration in order to seek the business. According to Weitekamp, while working for Maitland, Lane was servicing two or three of the Eagle stores which Weitekamp previously serviced. He had also lost the Diana Foods store’s account back to Lane. Weitekamp had to exert significant time explaining Lane’s actions to his clients.

At the close of the evidence, the trial judge concluded the parties’ “sales agreement” was a contract for the sale of the entire C & L business, and not merely a contract for the sale of Lane’s assets. The trial judge concluded rescission of the contract was not an appropriate remedy because the contract was over years old. He found Weitekamp had established a protectable interest. He noted advertisements from Maitland indicated Lane had merged his company with Maitland although C & L had been purchased by R.W. Refrigeration.

The trial judge found Lane had agreed not to compete with Weitekamp in any existing line of business, defined by the parties to be refrigeration and air conditioning. The trial judge concluded the business was actually limited to dealing with commercial refrigeration in stores of purveyors of food. He concluded interpreting the covenant not to compete as covering all air conditioning and refrigeration business would be unnecessarily restrictive to trade because neither company appeared to provide such a broad scope of service.

Based on the above findings, the trial judge granted injunctive relief in favor of Weitekamp, but restricted its scope to protect the interest he actually had purchased from Lane. The judge also concluded the term of 10 years was too long to protect Weitekamp’s interest and restricted the term to four years from the date of the contract. He also restricted the injunctive relief to prohibit Lane from engaging in commercial refrigeration business for purveyors of food which have places of business located in McLean County, or to purveyors of food outside McLean County when the purveyor also has a place of business within McLean County.

II. Standard Of Review

The thrust of Lane’s appeal is Weitekamp failed to establish the elements necessary to entitle him to preliminary relief. To obtain a preliminary injunction, a party must establish by a preponderance of the evidence that (1) he has a certain and clearly ascertainable right which needs protection; (2) he has no adequate remedy at law; (3) irreparable injury will occur without the injunction; and (4) he has a reasonable likelihood of success on the merits. Decker, Berta & Co. v. Berta (1992), 225 Ill. App. 3d 24, 27, 587 N.E.2d 72, 74; Ron Smith Trucking, Inc. v. Jackson (1990), 196 Ill. App. 3d 59, 63, 552 N.E.2d 1271, 1275.

A preliminary injunction is issued to preserve the status quo until the trial judge considers the merits of plaintiff’s claim. The determination of whether injunctive relief is proper is generally left to the trial judge’s discretion and is not disturbed on appeal absent an abuse of that discretion. To establish the requisite elements, plaintiff must only demonstrate there is prima facie evidence. City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 432-33, 380 N.E.2d 1106, 1118.

However, where the trial judge’s order effectively determines the merits in the case, a reviewing court should evaluate whether the trial judge’s conclusion is contrary to the manifest weight of the evidence and whether the trial judge erred. See Dixon Association for Retarded Citizens v. Thompson (1982), 91 Ill. 2d 518, 524-25, 440 N.E.2d 117, 120.

In his reply brief, Lane contends the latter standard applies here because the evidence presented was “extensive” and the trial judge’s order effectively determined the merits of the case. He also contends because temporary injunctive relief will remain in effect for an additional 11 months, this relief may be the only decision the trial judge will reach. This argument was raised for the first time in Lane’s reply brief and is waived. (134 Ill. 2d R. 341(e)(7).) However, if not waived, Lane’s contention is not supported by the record. He does not indicate how the additional 11 months the injunction will remain in effect effectively disposes of the issues raised in the case. The injunction does not prevent him from working for Maitland or doing certain refrigeration and air conditioning work. If he prevails on the merits, he will be able to do commercial work for purveyors of food. The issues have not been finally determined.

Moreover, Lane’s contention the evidence was “extensive” is contrary to the record on appeal. The only testimony provided was by Lane and Weitekamp. There are many conflicting issues within their testimony which could be more fully developed at a trial on the merits. The record is currently far from “extensive.” The proper standard of review is whether the trial judge abused his discretion in determining whether Weitekamp provided prima facie evidence to support his claim against Lane.

As we noted in Berta (225 Ill. App. 3d at 28, 587 N.E.2d at 74-75), in examining a restrictive covenant, a trial judge determines whether the covenant is reasonable. A more restrictive test of reasonableness is applied to restrictive covenants in employment contracts than is applied when the covenant is ancillary to the sale of a business. The reason for this difference is a purchaser in a sale of a business holds more bargaining power than an employee holds in an employment complex.

III. Covenant Ancillary To Sale Of Business

Lane argues the trial judge erred by concluding the convenant was ancillary to the sale of C & L to Weitekamp. Rather, he contends the parties’ agreement was merely a sale of the assets of C & L. Lane correctly notes the agreement refers only to the sale of assets. Although Lane claims the trial judge must have considered evidence outside of the contractual agreement, the trial judge indicated any fair-minded person would have concluded the agreement represented the sale of C & L to Weitekamp.

Moreover, the trial judge could have considered the evidence presented at the hearing to determine the intention of the parties to the contract. Determining whether a contract term is ambiguous and requires construction is a question of law for the trial judge. Where terms of the agreement are open to more than one interpretation, evidence of extrinsic facts and circumstances is admissible to determine the parties’ intent. Russell v. Jim Russell Supply, Inc. (1990), 200 Ill. App. 3d 855, 867, 558 N.E.2d 115, 124.

The term “asset,” as used in the parties’ agreement, could have represented the parties’ intention to transfer the business of C & L to Weitekamp. The list of assets to be sold appears to be an entire inventory of C & L, including necessary tools and equipment to operate a refrigeration repair business. It is unlikely Weitekamp would have paid $50,000 for equipment such as ladders and tools. It is more likely this fee was paid for C & L.

Lane contends that because the agreement did not refer to the transfer of the trade name, goodwill, or customer lists, this means only the assets and not the business itself were purchased by Weitekamp. We find this argument unpersuasive. He provides no authority which indicates these must be listed in an agreement for the trial court or this court to conclude they too were transferred when the business was transferred.

Lane even testified he asked Weitekamp whether he wished to use the name C & L. Why did Lane proffer such an offer if he did not intend to sell his business to Weitekamp? That Weitekamp chose not to use C & L as the name of his business is not dispositive of whether C & L as a business was transferred to him. The trial judge’s conclusion at the preliminary stage that the parties’ agreement represented the sale of the business of C & L to Weitekamp was not against the manifest weight of the evidence, and Weitekamp made out a prima facie case on that issue.

IV. Preliminary Relief

The primary issue upon review is whether the trial judge abused his discretion by concluding the evidence sufficiently established the requisite elements for preliminary relief. Lane argues (1) the covenant not to compete is unenforceable because it served no protectable interest, confidentiality, or goodwill in the property purchased, but instead sought to prevent competition per se; (2) the sale of goodwill was not part of the parties’ agreement; (3) the covenant should not have been enforced because it imposes unreasonable geographic limitations on his employment possibilities; (4) by modifying the covenant rather than finding it unenforceable, the trial judge failed to consider the inequities in the covenant in favor of Weitekamp; (5) Weitekamp failed to demonstrate an emergency existed and serious harm would result in the absence of the injunction; and (6) Weitekamp failed to demonstrate a likelihood of success on the merits.

Lane contends Weitekamp failed to sufficiently establish he had a protectable right to entitle him to preliminary relief. He alleges the covenant is an unenforceable restraint on trade because its purpose is not to protect confidentiality or the goodwill in the property transferred. Rather, its purpose is only to prevent competition per se.

Lane’s reply brief aptly notes Weitekamp’s argument on this issue is unresponsive. However, we will address the propriety of the trial judge’s ruling by considering Lane’s contentions. Federal court rulings and reasoning are not binding on State appellate courts. Lane relies solely on the Federal district court ruling in Marathon Petroleum Co. v. Chronister Oil Co. (C.D. Ill. 1988), 687 F. Supp. 437. Although Marathon is persuasive, there is no reason to rely on it because there is sufficient precedent established within our State appellate courts.

1. Confidential information

Lane contends there was no confidential information which the covenant could have protected. Weitekamp indicated some customers he had before the agreement "with Lane had transferred their business to Lane since Lane ceased employment with him. Weitekamp also indicated that while Lane was employed by him, Lane had access to these customers.

However, the names of these customers were not treated as confidential information. Weitekamp may not be pleased that Lane allegedly provided the names of these customers to Maitland, but in the context of this case, Weitekamp has shown no protectable interest in keeping those names secret. They could be obtained from the yellow pages of telephone directories by Maitland with or without Lane’s assistance.

2. Goodwill

A more compelling protectable interest for which temporary injunctive relief was properly granted is the goodwill of C & L which is a presumption when a business is sold to another party. “Goodwill” represents the advantages a business has over competitors due to its name, location, and owner’s reputation. (Russell, 200 Ill. App. 3d at 862-63, 558 N.E.2d at 121.) However, Lane argues this presumption has been overcome because the only interest Weitekamp sought to protect through the covenant was Weitekamp’s interest in his customers which existed before the parties’ agreement.

Although testimony indicated Lane allegedly convinced previous customers of Weitekamp to receive refrigeration repair services through the company Lane currently worked at, testimony also indicated Weitekamp lost customers whom he had obtained after the parties’ agreement who had previously been C & L’s customers. Weitekamp testified he lost the Eagle food store chain and Diana food store as customers after Lane began working for Maitland. Lane had testified that before his agreement with Weitekamp he had serviced these customers through C & L.

That Weitekamp was not interested in all C & L’s previous customers does not automatically destroy the need for temporary injunctive relief. Lane’s testimony indicated when he operated C & L he had over 100 customers. Weitekamp’s testimony indicated he was most interested in several of Lane’s customers: two Eagle food stores, three Jewel food stores, Diana Foods, a Convenient Mart, and a few meat markets.

Moreover, where “goodwill” is shown to have a substantial value as asset to the business, a trial judge can conclude it is a property right which should be protected by injunctive relief. (Russell, 200 Ill. App. 3d at 862, 558 N.E.2d at 121.) The loss of the Eagle account alone amounted to a loss of $400,000 gross annually for Weitekamp’s business. That he would have relied on the reputation of C & L to retain this business is reasonable. That he lost it allegedly due to publicity which Lane knew about and which indicated C & L had merged with Maitland denied Weitekamp his opportunity to profit from the goodwill of C & L.

3. Not competition per se

Finally, Lane misconstrues Weitekamp’s testimony as support for his argument Weitekamp intended only to prevent competition per se. Lane’s brief states Weitekamp’s goal was to ensure “that a company known as C & L” was “no longer going to be in existence” (quoting from Lane’s testimony). Weitekamp was responding to an inquiry on direct examination about why he had not wished to use the name C & L for his business. He explained he had already been operating under the name “R.W. Refrigeration” and because he was buying C & L, its name would no longer be in existence. Weitekamp’s testimony, if viewed as indicating he entered the agreement with C & L to destroy it, offers some support for Lane’s argument. However, on review of the record, we find it was not an abuse of discretion for the trial judge to conclude Weitekamp had a protectable right.

V. Modification Not Contrary To Public Policy

Lane argues the trial judge should have refused to enforce the covenant at all because it was clearly unfair. He relies on North American Paper Co. v. Unterberger (1988), 172 Ill. App. 3d 410, 416, 526 N.E.2d 621, 625, for the argument the covenant should not have been enforced because it was overly broad and extremely unfair.

The parties themselves provided for modification by including in the covenant a provision that if the covenant were determined to exceed the appropriate time or geographic scope it “shall be reformed to the maximum time or geographic limitations permitted by the applicable laws.” A court may modify the restraints embodied in a covenant not to compete. (North American Paper Co., 172 Ill. App. 3d at 416, 526 N.E.2d at 625.) Lane does not argue the covenant may not be modified. Instead, he argues the covenant is so unfair the court should refuse to enforce it rather than modifying it. Although he claims this covenant was against public policy, the covenant was not extremely unfair nor did it extensively restrain trade.

The covenant in this case is not as extensive as the covenant in the first district case of Dryvit System, Inc. v. Rushing (1985), 132 Ill. App. 3d 9, 11, 477 N.E.2d 35, 37, relied on by Lane, in which the covenant contained no geographical limitations. Lane contends the covenant was unfair because it restrained him from conducting business miles beyond the territory in which he had previously conducted his business. However, even before their agreement Weitekamp’s business extended over a broader geographical region than did Lane’s. Ensuring Lane did not compete within these territories was not extremely harsh toward Lane.

Lane also relies on the fact Weitekamp did not service all of Lane’s previous customers as evidence the covenant was to ensure Weitekamp did not have competition, rather than to provide service to Lane’s previous customers. The evidence did not conclusively establish Lane did not service any of Lane’s previous clients other than those specifically noted. In addition, contrary to Lane’s characterization, Weitekamp did not state he had no interest in servicing tavern and restaurant customers. His statement merely intimated these customers were not his priority customers. This statement does not mean he was not providing, or would not in the near future provide, these customers services.

Contrary to Lane’s contention, the covenant did not include “sweeping” restraints unrelated to any legitimate business interest of Weitekamp. The trial judge’s decision not to find it unenforceable at this stage was not an abuse of discretion.

VI. Reasonableness Of Covenant

Lane contends the covenant not to compete is unenforceable as written and as modified by the trial judge because it imposes an unreasonable geographic limitation upon him regarding areas where he can seek employment. He again notes correctly Weitekamp’s briefing of this issue leaves much to be desired. Although Weitekamp does not properly address the issue, we discuss the arguments raised by Lane.

The enforceability of a restraint ancillary to the sale of a business depends on whether the restraint is reasonable with respect to time and territory and is judged by the circumstances of the particular case. The elements of time and territory must be required for the protection of the purchaser, but cannot be oppressive to the seller, and must not be injurious to the interest of the general public. Russell, 200 Ill. App. 3d at 864, 558 N.E.2d at 123; McCook Window Co. v. Hardwood Door Corp. (1964), 52 Ill. App. 2d 278, 286, 202 N.E.2d 36, 41.

Lane directs this court to an observation in Russell (200 Ill. App. 3d at 864, 558 N.E.2d at 123) that for the restraint to be reasonable for the purchaser it must “protect him in the enjoyment -and possession of the goodwill of the property transferred to him, and can cover only that territory to which the goodwill extends.” However, an earlier first district ruling upon which Russell relied for this proposition further expounds on the requirement that time and territory must be reasonable for the purchaser.

In McCook (52 Ill. App. 2d at 287, 202 N.E.2d at 41), the court observed the restraint can also cover the territory to which the goodwill might be reasonably expected to extend during the existence of the restraint. In the present case, Lane testified he performed services while employed by Weitekamp which occurred outside the McLean County area. On cross-examination, Lane testified he had performed repair work in Watseka, Pekin, and Champaign while he worked for Weitekamp. Weitekamp had testified his services extended through the State of Illinois. While Lane was employed by Weitekamp, his previous reputation from the operation of C & L could have continued to amount to goodwill which Weitekamp could reap. However, this does not conclusively determine whether the limitations which the trial judge placed on the covenant were reasonable.

Lane argues the trial judge’s error occurred because he effectively expanded the covenant’s geographical limitations. The covenant restricted Lane’s competition within a 300-mile radius. The trial judge’s modification restricted Lane from working for purveyors of food in McLean County and those outside McLean County who had a business within McLean County. Lane argues these establishments include national businesses such as McDonald’s, Jewel food stores, Wendy’s, Perkins, Bob Evans, et cetera, which are located throughout the United States.

The issue is whether the covenant as modified applied only to a geographical area in which the goodwill of C & L could be expected to expand. C & L had never operated outside Illinois. We see no reason to expand the restriction beyond these boundaries and we believe the modified covenant must be so interpreted.

VII. Emergency And Harm Sufficiently Established

Lane correctly notes Weitekamp had to sufficiently establish an emergency existed and his company would experience serious harm if the temporary injunctive relief were not granted. (Peterson-Jorwic Group, Inc. v. Pecora (1991), 224 Ill. App. 3d 460, 462, 586 N.E.2d 676, 677-78.) Lane contends Weitekamp’s testimony he lost the Eagle food stores’ account and Diana Foods was insufficient to show an emergency existed or serious harm was likely. He directs us to Weitekamp’s concession he was also informed by Eagle he was losing its account because one of his workers did not pay for a quart of milk the worker consumed. The judge could have reasonably concluded the last factor was not the reason Eagle food stores decided to begin to have Maitland, represented by Lane, service their refrigeration units.

Nor is Lane’s argument persuasive that these factors were not sufficiently established because Weitekamp did not produce evidence to demonstrate Eagle food stores or Diana Foods store hired Maitland to obtain services by Lane rather than because they wished to obtain their services from Maitland. The evidence presented established more than mere coincidence to indicate Weitekamp lost these accounts because of Lane’s employment with Maitland.

That Weitekamp had already lost an account amounting to $400,000 gross annually, in addition to the Diana food store, was sufficient evidence for the trial judge to conclude an emergency existed and without immediate relief Weitekamp’s business would likely suffer serious harm while these proceedings were pending. The trial judge’s conclusion was not an abuse of discretion.

VIII. Likelihood Of Success On Merits

Finally, we reject Lane’s contention the evidence did not suggest it was likely Weitekamp would succeed on the merits. For the reasons discussed above, Weitekamp has a reasonable likelihood of succeeding on the merits of his claim.

Affirmed.

COOK and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    JULIE KELLNER et al., as Ex'rs of the Estate of John P. Agee, Sr., et al., Plaintiffs-Appellants, v. RALPH E. BARTMAN et al., Defendants-Appellees.
    Fourth District
    No. 4 — 93—0150
    Opinion filed September 16, 1993.

      Charles L. McNeil, of McNeil & McNeil, of Mason City, for appellants.
    Roger W. Thompson, of Lincoln, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

John P. Agee, Sr., and Betty A. Agee (Agees) appealed from an order of the circuit court of Logan County granting a summary judgment to defendants, Ralph E. Bartman and Dolores Bartman. The Agees sued defendants for breach of a written contract in which defendants granted the Agees a right of first refusal on the sale of specified real estate. During the pendency of this appeal, a motion was filed to substitute Julie Kellner, John Agee, Jr., and Jeffrey Agee, as executors of the estate of John P. Agee, Sr., as appellants as a result of the death of John P. Agee, Sr. This motion was granted.

On appeal, the only issue is whether the trial court properly determined that no genuine issue of material fact existed and that the defendants were entitled to a judgment as a matter of law. We reverse.

On December 18, 1978, the Agees and Bartmans entered into an installment contract whereby the Bartmans agreed to sell and the Agees agreed to purchase the following described property:

“All of my real estate located in the Northeast Quarter (NE ¼) of Section 31, Township 21 North, Range 4 West of the 3rd P.M. and that part of Section 32, Township 21 North, Range 4 West of the 3rd P.M. located west of the New Holland to San Jose blacktop road as presently situated, containing approximately 28 acres, more or less, situated in the Town of Prairie Creek, County of Logan and State of Illinois.”

The sales price was $60,000, to be paid $1,000 upon execution of the agreement, $29,000 to be paid on or before February 1, 1979, and the remaining $30,000 to be paid in three $10,000 installments, together with 7% interest per annum on the unpaid balance calculated from February 1, 1979. The three installments were to be paid on or before February 1, 1980, February 1, 1981, and February 1, 1982. There was no dispute in this case that the conditions were fully performed and that the above-described property was transferred by the Bartmans to the Agees in 1982.

However, also included in the installment contract was the following language:

“8. SPECIAL PROVISIONS:
(A) In the event Seller shall decide to sell his remaining farm land located in Section 32, Township 21 North, Range 4 West of the 3rd P.M., excepting, however, therefrom a 35[-]acre tract situated in the Southwest Quarter of said Section 32, situated in the Town of Prairie Creek, Logan County, Illinois, he shall first offer the farm land to Buyer for the price and on the terms of the intended sale, by an instrument in writing, delivered or mailed to Buyer at their above[-]stated address. Buyer shall have sixty (60) days from the date of such offer in which to accept or reject the same. Upon the expiration of such period, if the offer is not accepted by Buyer, Seller shall be free to sell said premises to such other prospective Buyer or Buyers. Acceptance of said offer by Buyer shall be in writing within the period of time provided to Seller delivered or mailed to Seller’s address herein stated.”

The contract further provided that all covenants and agreements therein “shall extend to and be obligatory upon the heirs, executors, administrators, and assigns of the respective parties.” The contract was drafted by an attorney who represented the Bartmans.

On March 1, 1989, the Bartmans entered into an installment contract for the sale of farmland located in “Section 32, Township 21 North, Range 4 West of the Third Principal Meridian, Logan County, Illinois,” to Donald and Barbara Semple (Semples). In doing so, the Bartmans did not offer to sell the property to the Agees. Donald and Barbara Semple are not parties to this proceeding.

In the trial court, the Agees and Bartmans both filed motions for summary judgment. The trial court denied the Agees’ motion, but granted the Bartmans’ motion. In granting summary judgment to the defendants, the trial court noted that over 10 years had expired from the date of the original contract to the date of the sale to the Semples and over seven years had expired from the termination of the contract to the date of the sale to the Semples. In addition, the trial court found that paragraph 8(A) of the contract was vague and indefinite concerning price and other terms and absolutely quiet as to the element of time. The trial court further stated the calculation of damages would be “pure guesswork and speculation” and to extend the right of first refusal beyond the expiration of the original contract was neither intended nor reasonable. In denying the Agees’ post-trial motion, the trial court further explained that not too much weight was given to the speculative nature of damages. The trial court was concerned with the indefiniteness as to time and the mode of computing the sale price.

Merely because the parties filed cross-motions for summary judgment alleging that no genuine issue of material fact existed does not obligate the trial court to grant summary judgment. Mutual Life Insurance Co. v. Washburn (1989), 183 Ill. App. 3d 978, 981, 539 N.E.2d 1278, 1280, rev’d on other grounds (1990), 137 Ill. 2d 312, 561 N.E.2d 29.

“The purpose of summary judgment is to determine whether there are any genuine issues of material fact (Purtill v. Hess (1986), 111 Ill. 2d 229, 240), and summary judgment should be granted when ‘the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law’ (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c)). Although summary judgment is an expeditious method of disposing of a lawsuit, it should only be allowed when the right of the moving party is clear and free from doubt. (Purtill, 111 Ill. 2d at 240.)” (Colvin v. Hobart Brothers (1993), 156 Ill. 2d 166, 169-70.)

On appeal, the reviewing court’s role is to consider anew the facts and law relating to the case and determine whether the trial court was correct in finding that no genuine issue of material fact existed, and if none exists, whether the judgment was correctly entered as a matter of law. University of Illinois v. Continental Casualty Co. (1992), 234 Ill. App. 3d 340, 343, 599 N.E.2d 1338, 1341.

“The interpretation of an unambiguous written contract is a question of law for the trial court to determine. Likewise, the determination of whether an ambiguity exists is also a question of law. (Nerone v. Boehler (1976), 34 Ill. App. 3d 888, 340 N.E.2d 534.) Simply because the parties cannot agree on the meaning of a contract does not mean it is ambiguous. (Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 436 N.E.2d 663.) Even if the court determines there is an ambiguity and evidence of prior and contemporaneous transactions and other extrinsic facts are introduced to ascertain the contract’s true meaning, the meaning of the contract may still be determined as a matter of law where the facts are uncontroverted or show the contract to have but one meaning. Nerone v. Boehler (1976), 34 Ill. App. 3d 888, 340 N.E.2d 534.” (Pa sulka v. Koob (1988), 170 Ill. App. 3d 191, 202, 524 N.E.2d 1227, 1234.)

In this case, the facts are not controverted and the parties merely disagree about the legal effect of the language of the contract. As a result, with regard to the trial court’s determination of the legal effect of the right of first refusal in the installment contract between the Agees and the Bartmans, there is no genuine issue of material fact.

All that remains to be determined is whether judgment was properly entered in favor of defendants as a matter of law. The first question to be addressed is whether the right of first refusal is unenforceable because it is insufficiently definite as to price and other terms. Had this been an option instead of the right of first refusal, the trial court’s ruling would have been correct. An option is defined as:

“A right, which acts as a continuing offer, given for consideration, to purchase or lease property at an agreed upon price and terms, within a specified time. An option is an agreement which gives the optionee the power to accept an offer for a limited time. Kelman v. Bohi, 27 Ariz. App. 24, 550 P.2d 671, 675. An option to purchase or to sell is not a contract to purchase or sell, as optionee has the right to accept or to reject the offer, in accordance with its terms, and is not bound. Catmull v. Johnson, Utah, 541 P.2d 793, 795.” (Black’s Law Dictionary 986 (5th ed. 1979).)

A right of first refusal, also referred to as a preemptive right, is a condition precedent to the sale of the property. A right of first refusal is not an option in that the holder of the right cannot force the sale of the property at a stipulated price. (Annot., Landlord and Tenant: Tenant’s Rights Under Provision Giving Him Pre-Emptive Right to Purchase on Terms Offered by Third Person, Where Third Person’s Offer is Withdrawn Before Tenant Exercises Pre-Emptive Right, 46 A.L.R.3Sd 1377, 1377-78 (1972).) Instead, the right does not arise until the grantor notifies the holder of a desire to sell or until offering or contracting to sell to a third party without first giving the holder of the right of first refusal the opportunity to buy. (Wellmore Builders, Inc. v. Wannier (1958), 49 N.J. Super. 456, 462-63, 140 A.2d 422, 426.) Oftentimes a right of first refusal is a right to elect to take specified property at the same price and on the same terms and conditions as are contained in a good-faith offer to purchase made by a third party. See Vincent v. Doebert (1989), 183 Ill. App. 3d 1081, 1083, 539 N.E.2d 856, 858; Turner v. Shirk (1977), 49 Ill. App. 3d 764, 765, 364 N.E.2d 622, 623; Ohio Oil Co. v. Yacktman (1976), 36 Ill. App. 3d 255, 257, 343 N.E.2d 544, 546.

The right of first refusal need not specify the price and terms, as long as it provides a method whereby the price and terms may be ascertained. (See Annot., Requisite Definiteness of Price to be Paid in Event of Exercise of Option For Purchase of Property, 2 A.L.R.3d 710 (1965).) Many terms and conditions of the sale upon the exercise of the right of first refusal may be supplied by implication or custom. White Hen Pantry, Inc. v. Cha (1991), 214 Ill. App. 3d 627, 634, 574 N.E.2d 104, 108.

In Folsom v. Harr (1905), 218 Ill. 369, 372, 75 N.E. 987, 987, the language of the right of first refusal was to the effect that “Should said party of the first part conclude to sell this property, then said second party is to have the first chance to buy the same.” There was no requirement that the grantor receive a bona fide offer from a third party in order to set the price and terms of the sale. The same deficiency is found in the language of the right discussed in Fogg v. Price (1888), 145 Mass. 513, 14 N.E. 741, discussed in Folsom and Rolfs v. Mason (1961), 202 Va. 690, 692, 119 S.E.2d 238, 240, 2 A.L.R.3d 695, 697-98 (1965).

Distinguished in Folsom was the earlier Illinois Supreme Court case of Hayes v. O’Brien (1894), 149 Ill. 403, 418-19, 37 N.E. 73, 77, wherein the court stated:

“In Fry on Specific Performance, after stating (sec. 214) that ‘it is evident that the price is an essential ingredient in the contract, and that where this is neither ascertained nor rendered ascertainable the contract is void for incompleteness and incapable of enforcement,’ the author says (sec. 216): ‘It is not, however, necessary that the contract should determine the price in the first place. It may appoint a way by which it is to be thereafter determined, in which case the contract is perfected only when the price has been so determined.’ The principle governing is: When the contract appoints the mode of determining the price, and the price is determined according to that mode, the contract becomes perfect and complete, in all respects as if it had been originally fixed in the writing. Norton v. Gale, 95 Ill. 533.
*** Here, the parties, by their contract, prescribed a mode by which the price at which the lessee was to purchase was definitely ascertainable. If the lessor received an offer for the land which he was willing to accept, that became the price at which the lessee might purchase, and, if the lessee accepted it, at which the lessor was bound to convey.”

Such rights of first refusal are not indefinite and are enforceable as long as the holder meets the material terms and conditions of the third party’s offer. Vincent v. Doebert (1989), 183 Ill. App. 3d 1081, 1088-89, 539 N.E.2d 856, 861-62; see also Turner v. Shirk (1977), 49 Ill. App. 3d 764, 766-67, 364 N.E.2d 622, 623 (in which the right of first refusal contained a clause giving the holder an opportunity to match a bona fide offer of a third party, and, in the event there was no such offer when the grantor desired to sell, also provided the holder an opportunity to purchase at a fair cash market value based on an appraisal of three appraisers and specified the method of their selection).

As in Turner, plaintiffs and defendants freely and voluntarily entered into a contract, part of the consideration being a right in plaintiffs under certain conditions to purchase the described land. The contract is not being construed in a vacuum, but within the context of the facts contained in the record. This court need not consider all the possible scenarios which might cause difficulty in enforcing the right of first refusal. The Agees sought only to have the right of first refusal on the terms and conditions established by the transaction between the Bartmans and the Semples. Although the right of first refusal does not specifically refer to a “bona fide” offer, the provision does refer to “the terms of the intended sale” and “other prospective Buyer or Buyers.” Since every contract contains an implied promise of good faith and fair dealing between the parties (Borys v. Josada Builders, Inc. (1982), 110 Ill. App. 3d 29, 33, 441 N.E.2d 1263, 1266), and there is nothing to suggest bad faith in the transaction between the Bartmans and the Semples, the terms and conditions offered by the Semples to the Bartmans for the purchase of the property would be sufficient to provide certainty to the terms of a contract had the Agees been allowed to exercise their right to first refusal. The right of first refusal in the case at bar sets out the method by which the price and other material terms of the sale are to be determined, and therefore, it does not fail for that reason.

In addition, it does not fail because of the absence of a specified duration in which to exercise the right of first refusal. While an option for an indefinite term is void, a right of first refusal which does not specify a time limitation is not ordinarily void for indefiniteness. (91 C.J.S. Vendor & Purchaser §6, at 847 (1955).) Therefore, although the right of first refusal is contained in a document such as a lease or installment contract which sets dates for the performance of other contract provisions, the right of first refusal is not affected by those provisions unless that is shown to be the intent of the parties. Where a contract for a conveyance of land provides for the performance of other acts beside conveyance, the contract will remain in effect after the delivery of the deed until the contract has been fully performed. Trapp v. Gordon (1937), 366 Ill. 102, 110, 7 N.E.2d 869, 873.

In the past, the failure to specify a duration rendered the right of first refusal vulnerable to being declared void as violative of the rule against perpetuities or the common law rule concerning restraint on the alienation of property. (Marcy v. Markiewicz (1992), 233 Ill. App. 3d 801, 810-11, 599 N.E.2d 1051, 1056-57; Martin v. Prairie Rod & Gun Club (1976), 39 Ill. App. 3d 33, 35-38, 348 N.E.2d 306, 308-10; Annot., Pre-emptive Rights to Realty as Violation of Rule Against Perpetuities or Rule Concerning Restraints on Alienation, 40 A.L.R.3d 920, 927 (1972); see Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119, 123-26, 333 N.E.2d 1, 3-5 (for a general discussion of the doctrine prohibiting unreasonable restraint against alienation of real property).) However, no such argument is put forth in this case, in part because the rule against perpetuities is no longer applicable to rights of first refusal becoming effective after September 22, 1969. Ill. Rev. Stat. 1991, ch. 30, pars. 194(a)(7), 196.

In construing a contract, the primary objective of the court is to give effect to the intent of the parties. When possible, the parties’ intent is to be ascertained from the language of the contract. Rothner v. Mermelstein (1991), 219 Ill. App. 3d 502, 508, 579 N.E.2d 1022, 1027.

In the case at bar, the right of first refusal is not ambiguous. It is simply silent as to duration. As already noted, this does not render the contract indefinite. It also does not allow the court to rewrite the right of first refusal by inserting into it a limitation period based on the dates of performance otherwise provided for in the installment contract for the sale of real estate. However, where a right of first refusal is silent as to the duration of the right, the courts of this State have interpreted the right to be personal to the parties to the agreement such that it terminated on the death of either party to the agreement. (Vogel v. Melish (1964), 31 Ill. 2d 620, 624-27, 203 N.E.2d 411, 413-14; Marcy, 233 Ill. App. 3d at 811, 599 N.E.2d at 1057.) In both of these cases, the courts rejected the argument that the personal character of the agreement was negated by a clause in the contract to the effect that the contract was binding on heirs, personal representatives, and assigns.

As a result, since the right of first refusal in this case is silent as to duration, it will be interpreted to be personal in nature and limited to the lifetime of the parties to the contract. There is nothing in the record which indicates that any of the parties to the contract were dead at the time the land subject to the right of first refusal was sold to the Semples. Since the right of first refusal remained in effect at that time and was not indefinite as to price or other conditions, the granting of the summary judgment in favor of defendants in this case was error. Whether the plaintiff suffered any damages is not before this court.

Accordingly, the judgment of the circuit court of Logan County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

STEIGMANN, P.J., and LUND, J., concur.


author: JUSTICE KNECHT

text:
    VIRGINIA OGLESBY, Indiv. and as Ex'r under the Will of Richard J. Oglesby III, Deceased, Counterplaintiff and Defendant and Third-Party Plaintiff-Appellant, v. SPRINGFIELD MARINE BANK, Trustee, Counter-defendant and Plaintiff (Emma Jean Counts et al., Defendants and Counter-defendants; Carlotta Hutchinson, n/k/a Carlotta Tibbals, et al., Defendants and Counterdefendants-Appellants; Richard J. Oglesby IV, Defendant and Counterdefendant; Emma Jean Oglesby Counts et al., Defendants and Counterdefendants-Appellees; Peggy Counts Kent et al., Defendants and Third-Party Defendants).
    Fourth District
    No. 4 — 92—1018
    Argued June 16, 1993.
    Opinion filed September 16, 1993.

      Carl O. Hoffee (argued) and Bernard G. Segatto III, both of Barber, Segatto, Hoffee & Hines, of Springfield, for appellant Virginia Oglesby.
    Robert A. Stuart, Jr. (argued), Emmet A. Fairfield, and Elizabeth W. Anderson, all of Brown, Hay & Stephens, of Springfield, for other appellants.
    Donald R. Tracy and Steven C. Rahn (argued), both of Heyl, Royster, Voelker & Allen, of Springfield, for appellees.
    Donald A. Behle, Warren Peters, and Stephen L. Miller, all of Lincoln, guardians ad litem.

   JUSTICE KNECHT

delivered the opinion of the court:

This is an action for construction of a testamentary trust created under the last will and testament of Emma Gillett Oglesby, deceased, dated January 27, 1924. The trust is due to terminate on February 1, 1998. Appellants argue the trial court erred in finding Emma Jean Oglesby Counts and James Edward Oglesby were "children of *** Jasper” within the meaning of the will and thus entitled to share in the distribution of the corpus of the trust created pursuant to item V. We disagree and affirm.

Testator Emma Gillett Oglesby had one child, Hiram Keays, from her marriage to her first husband. After her husband’s death, she married Governor John Oglesby in 1873 and had four children: Felicite, Richard J., John Dean, and Jasper. Richard predeceased the testator and both John Dean and Felicite died leaving no descendants. Jasper married twice and produced offspring from both marriages but the validity of the second marriage is disputed by the parties. Jasper’s first marriage in August 1912 to Maude Byrum produced two children, Richard J. (deceased 1983) and John Lewis (deceased 1972).

In 1920, Jasper left Maude and their marital home in Elkhart, Illinois, and participated in a marriage ceremony with Myrtle (Peggy) Nicholson in Crown Point, Indiana. There is no evidence of a divorce obtained from Maude Oglesby prior to the date of the Crown Point marriage. From then until Jasper’s death in 1935 they lived openly as man and wife, first at the home of Peggy’s parents and later in Corn-land, Illinois, all within the same county, as testator and his first wife. Two children were bom of that union: Emma Jean Oglesby Counts (bom June 7,1923), and James Edward Oglesby (bom March 3,1926).

In January 1924, Emma Gillett Oglesby executed her last will and testament consisting of 14 separate items, of which only the disposition of the item V property is at issue in this appeal. The testator died on November 25, 1928.

In January 1929, Maude Oglesby filed a complaint against Jasper for separate maintenance. The decree entered provided that Maude and Jasper were married in August 1912, that they were husband and wife, that Richard J. and John Lewis were bom of that marriage, and that an order of support of $100 per month be entered. In July 1931, Jasper filed a petition for modification of the support and maintenance order, which was modified a year later when his payments were reduced to $75 per month.

In 1932, Jasper, Peggy, and their two children traveled to Mexico. Jasper filed a complaint for divorce against Maude. The Mexican divorce proceedings indicate Jasper stated he did not know Maude’s whereabouts because she divided her time between Elkhart, Chicago and Springfield. Service was made by publication and by posting of the summons on the door to the Mexican courthouse. Jasper listed his address as Juarez, Mexico. The Mexican court entered a decree of divorce between Jasper and Maude on March 16, 1932, and approximately one month later Jasper and Peggy participated in a marriage ceremony in Mexico. At some time thereafter, Jasper, Peggy and the two children returned to Illinois, settling in Comland. Jasper died in July 1935.

Following the death of Jasper’s brother, John Dean Gillett Oglesby, in 1938, a variety of litigation was commenced regarding issues related to the will. (See Oglesby v. Springfield Marine Bank (1944), 385 Ill. 414, 52 N.E.2d 1000; Oglesby v. Springfield Marine Bank (1946), 395 Ill. 37, 69 N.E.2d 269; Oglesby v. Springfield Marine Bank (1962), 25 Ill. 2d 280, 184 N.E.2d 874; Oglesby v. Marine Bank (1990), 205 Ill. App. 3d 1111 (unpublished order under Supreme Court Rule 23).) This case relates only to construction of the language of item V of the will of Emma Gillett Oglesby. The question is whether Emma Jean and James Edward (Jasper’s children with Peggy) are entitled to share equally in the item V property with Richard J. and John Lewis (Jasper’s children with Maude) and whether all are considered “children of *** Jasper” within the meaning of the will.

The trial court’s memorandum opinion filed September 21, 1992, rejected the argument that the language “children of *** Jasper” was defined by the express references in other parts of the will to Richard J. and John Lewis and the absence of specific reference to Emma Jean and James Edward. The court found the language “children of *** Jasper” was used in contradistinction to those express references. The court then noted while the testator demonstrated a special affection for her grandsons Richard J. and John Lewis by restricting the disposition of item VIII property to them, she also demonstrated an intent to provide for potential, grandchildren who might be born to any of her children. Provisions were made for potential children of John Dean (who was 46 years old and unmarried at the execution of the will) and for children of Felicite (who was then 49 years old and unmarried), even though it was unlikely either would ever have children. The court also noted the language of the item V devise to “children of *** Jasper” mirrored that used in item VI, each of which expressed an intent to provide for potential, unknown children of John, Felicite, and Jasper, and contrasted with the language reserving item VIII for Richard J. and John Lewis.

The court next reviewed the evidence as to whether Emma Jean and James Edward were “children of *** Jasper” within the meaning of the will. The court noted the two marriage ceremonies in which Jasper and Peggy participated in Crown Point, Indiana, in 1920, and in Juarez, Mexico, in 1932, as well as the two legal actions between Jasper and Maude — the 1929 separate maintenance action in Illinois and Jasper’s subsequent action to modify support, and the divorce in Mexico in 1932. The court acknowledged the parties’ dispute regarding the validity of the Mexican divorce but noted a presumption of validity attached to the divorce and later marriage in Mexico which no one had ever adjudicated as void.

The court also noted that Jasper and Peggy had lived openly in the same community as his first wife, holding themselves out as husband and wife, and Maude never sought to have Jasper charged with bigamy or took any action to void the Mexican divorce. Jasper acknowledged both Emma Jean and James Edward as his children and their birth certificates list him as the father and their births as legitimate. Both Jasper’s obituary and his death certificate listed Peggy as his widow. The court also made several findings with respect to the challenged legitimacy of Emma Jean and James Edward, noting such discussion was unnecessary in view of its determination both were found to be children of Jasper within the meaning of the will. The court concluded Emma Jean and James Edward were legitimate and entitled to share equally with Richard J. and John Lewis in the trust assets distributable under item V of the will.

Appellants herein are Virginia Oglesby, the third wife and widow of Richard J. Oglesby, and descendants of John Lewis Oglesby. Appellees are the descendants of Jasper Oglesby and Peggy Nicholson. Appellants challenge the trial court’s construction of the will on two grounds. First, the language of the will shows the testator’s intent to limit the item V devise to Richard J. and John Lewis and to exclude Emma Jean and James Edward. Second, under the law existing at the time of the will’s execution, the term “children” was intended to include legitimate offspring only and did not include Emma Jean and James Edward.

In construing a will, the testator’s intent is to be determined from the entire document: the particular language selected, the relationships between its parts, and the overall plan for distribution. (Whitmore v. Starks (1959), 17 Ill. 2d 202, 206, 161 N.E.2d 254, 257; Bradley v. Bradley (1954), 3 Ill. 2d 58, 63, 119 N.E.2d 788, 791.) Where the language is such that the testator’s intent is uncertain, the language may be read in light of the circumstances surrounding the testator when the will was made. Whitmore, 17 Ill. 2d at 206-07,161 N.E.2d at 257.

Item V of the will provided a life estate for testator’s son, John Dean Gillett Oglesby, in certain listed real estate. As relevant to this appeal, contingencies for the disposition of the item V property following that life estate were to take effect upon the termination of the trust established in item VIII. Item VIII created a spendthrift trust in certain listed real estate with the income paid to Jasper during his life and thereafter to Richard J. and John Lewis, testator’s grandsons. Fifteen years following the death of the survivor of Jasper, Richard J. and John Lewis, the item VIII trust was to terminate and the proceeds paid to “the surviving children and lineal descendants of any deceased child or children of Richard James Oglesby and John Lewis Oglesby.” In contrast, item V provided if John Dean died without descendants and after the death of Felicite and termination of the item VIII trust: “I give and devise all of the property in this Item in this will described, share and share alike, to the child, children and descendants of child or children of Louise Felicite Oglesby and Jasper E. Oglesby surviving at the time John Dean Gillett Oglesby departs this life.” A similar life estate in other property was provided for Felicite in item VI. Since Felicite exercised the power of appointment granted her pursuant to that provision, the disposition of the property encompassed by item VI is not disputed. However, the contingency language in item VI parallels the language in item V and contrasts with the specific devise to Richard J. and John Lewis expressed in item VIII.

Disposition of the corpus of item VIII property was expressly limited to Richard J. and John Lewis. Neither item V nor item VI was so restricted. The property in those latter items was reserved for unnamed or potential children of John Dean, Felicite, and Jasper. We cannot conclude the testator intended "the provision for “children” in item V to apply only to potential children of Felicite but not to those of Jasper when both were mentioned in the same clause of the will. Neither can we conclude the testator intended to restrict the item V property to Richard J. and John Lewis as she had the item VIII property, for to do so would require a determination that selection of the language “children of *** Jasper” was an inadvertent drafting error.

Given the complexity of the 34-page document, the care in which it was drawn to control the disposition of testator’s property for long periods following her death, and the numerous contingencies anticipated and resolved, we cannot conclude selection of the language “children of *** Jasper” was inadvertent. In the more than 50 times Richard J. and John Lewis are mentioned in the will, neither is ever identified as Jasper’s child, a provision testator might have used had it been her intent to limit all devises to Jasper’s children solely to Richard J. and John Lewis.

Appellants point out no provisions of the will expressly name Emma Jean or James Edward. At the time the will was executed, Emma Jean was an infant and James Edward had not yet been born. Failure of express designation does not support an intent to exclude. See Morrison v. Tyler (1914), 266 Ill. 308, 320-21, 107 N.E.602, 606.

The evidence indicates the testator was aware Jasper moved out of the marital home he shared with Maude. She kept track of all the members of her family and knew what was going on. Jasper visited his mother weekly after his marriage to Peggy. It is not clear whether testator was aware of the birth of Emma Jean prior to the time she executed her will. In any event, she must have been aware of Jasper’s domestic relationship with Peggy, if not the Crown Point marriage itself. With that knowledge the testator would also have known this union had the potential for producing additional grandchildren. Had she intended to disinherit these potential “children of *** Jasper,” she could have done so in plain language or limited the devise to Richard J. and John Lewis. We note the testator used an exclusionary provision with respect to Hiram G. Keays, her son by her first marriage, because he had been devised a large estate under the wills of her father and brother.

We find appellants’ view of the will — as expressing an intent to limit the item V devise to Richard J. and John Lewis — irreconcilable with its structure and the language chosen for devising her property. Emma Jean and James Edward are included within the devise to “children of *** Jasper” and they are entitled to take under item V of the will.

Since we have determined it was the testator’s intent by purposeful selection of the language “children of *** Jasper” to devise the item V property to all of Jasper’s children, including those from his marriage to Peggy, we decline to address appellants’ argument that Emma Jean and James Edward are illegitimate offspring excluded under the law extant at the time of execution from taking under the will.

The judgment of the circuit court is affirmed.

Affirmed.

STEIGMANN, P.J., and LUND, J., concur.


author: PRESIDING JUSTICE STEIGMANN JUSTICE COOK, JUSTICE LUND,

text:
    GARY GAPINSKE et al., Indiv. and as Special Adm'rs of the Estate of Adam Paul Gapinske, Plaintiffs-Appellants, v. THE TOWN OF CONDIT et al., Defendants-Appellees.
    Fourth District
    No. 4 — 92—0840
    Argued April 13, 1993.
    Opinion filed September 16, 1993.
    Rehearing denied October 13, 1993.
    COOK, J., specially concurring.
    LUND, J., dissenting.
    Bruce A. Brown (argued), of Goldsmith, Thelin, Schiller, Dickson & Brown, of Aurora, and Brian McPheters (argued), of Hatch, Blockman, McPheters, Fehrenbacher & Lyke, of Champaign, for appellants.
    Jay S. Judge (argued), Kristine A. Karlin, and Steven A. Kozicki, all of Judge & James, Ltd., of Park Ridge, for appellees.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

On the night of December 29, 1990, plaintiffs Gary and Jane Gapinske drove south on a township road, which was a borderline between the Town of Condit and the Town of Newcomb, both in Champaign County. As they crossed a bridge over the Sangamon River, they drove into floodwater on the roadway. The floodwater swept their car into the river, but both plaintiffs escaped from the car and grabbed onto some tree limbs to keep from being swept away. At the time of this incident, Jane Gapinske was months pregnant. Both she and Gary survived, but both suffered from hypothermia, which caused the death of Jane’s unborn child.

When plaintiffs drove into the floodwater, a yellow flashing light had been placed at the side of the road just ahead of the floodwater. In August 1991, plaintiffs brought this action against the two towns and both of the towns’ road commissioners, alleging inter alia that defendants’ conduct constituted negligence or wilful and wanton behavior for the following reasons:

(a) defendants failed to put the warning device far enough in advance of the flooding river to enable southbound drivers approaching the bridge from the north to stop in time to avoid driving into the river;

(b) defendants permitted the warning device or barricade on the northerly approach to the bridge to be moved (or removed) and to remain in the wrong location (or to remain absent) when they knew (or should have known) that the absence of such warning signs created a dangerous condition for motorists going south on the road at the bridge;

(c) defendants failed to properly maintain, replace, or position the warning device or barricades immediately north of the flooding river;

(d) defendants failed to provide a warning sign or barricade on the northerly approach to the bridge, in addition to the flashing light, to alert drivers of the flooding, when flooding would not be reasonably apparent to motorists;

(e) defendants failed to provide barricades or warning signs on the northerly approach to the bridge far enough in advance of the flooding river, when similar warnings had earlier been placed on the southerly approach to the bridge;

(f) defendants failed to close the road in the area of the bridge, when defendants had closed the road to northbound traffic;

(g) defendants failed to warn southbound traffic that the road was closed, when defendants had posted such warnings at the intersection for northbound motorists;

(h) defendants failed to post a warning device conforming to the Manual on Uniform Traffic Control Devices (1988) (Uniform Manual) for southbound motorists;

(i) defendants failed to give an adequate warning of the flooded road to southbound motorists, in that the flashing light was located off the roadway, low to the ground, and was a device customarily used to mark holes in highways or lateral boundaries of roadways and was therefore ambiguous as to its intent and purpose; and

(j) defendants failed to give adequate warning to southbound motorists, in that the flashing light failed to conform to section 6B — 3 of the Uniform Manual (Uniform Manual §6B — 3, at 6B — 2 (warning devices should be placed in a position where they will convey their message most effectively and drivers will have adequate time for a response)) and failed to accompany the light with a sign warning of the flooded roadway as required by section 2C — 40 of the Uniform Manual (Uniform Manual §2C — 40, at 2C — 22).

Defendants moved to dismiss, based in part upon a claim of immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1991, ch. 85, par. 1 — 101 et seq.). In September 1992, the trial court dismissed plaintiffs’ complaints with prejudice. However, the court stated that it believed the allegations of the complaint, taken as true, avoided the immunity granted defendants under section 3 — 104 of the Act (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 104). The court granted defendants' motion to dismiss anyway, holding that the Uniform Manual did not impose any mandatory requirements because compliance therewith constitutes discretionary acts by defendants. The court also found that section 3 — 105 of the Act (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 105) provided immunity to defendants because the duty to maintain did not include the duty to warn because of weather conditions. The court also ruled that the flood itself, and not the yellow flashing light, was the proximate cause of the accident. Last, the court found plaintiffs’ complaint did not rely upon their observing any signs or warning devices.

On appeal, defendants renew all of their previously stated grounds for dismissal. Because we agree with defendants’ claim that section 3 — 104 of the Act grants them immunity, we affirm the dismissal of plaintiffs’ complaint and need not discuss the other issues addressed by the trial court.

Throughout this litigation, defendants have maintained that the supreme court’s decision in West v. Kirkham (1992), 147 Ill. 2d 1, 588 N.E.2d 1104, construing section 3 — 104 of the Act, disposes of this case because defendants are immune from any legal cause of action based upon their alleged failure to provide regulatory devices. To put defendants’ argument and plaintiffs’ response in context, we must discuss the legislative history of section 3 — 104 of the Act, as did the supreme court in West.

Section 3 — 104 of the Act was last amended in 1986, and prior to that amendment, it read as follows:

“(a) Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating signs.
(b) Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to provide traffic warning signals, signs, markings or other devices unless such a signal, sign, marking or device was necessary to warn of a condition which endangered the safe movement of traffic, and which would not be reasonably apparent to or anticipated by a person in the exercise of due care.” (Ill. Rev. Stat. 1985, ch. 85, par. 3 — 104.)

The 1986 amendment deleted subsection (b) in its entirety and added “warning sign, device or marking,” among others, to the list of traffic devices a municipality was immunized for failing to provide. (See Pub. Act 84-1431, art. 1, §2, eff. November 25, 1986 (1986 Ill. Laws 3740, 3744).) The supreme court in West spoke of this 1986 amendment as follows: “The legislature thus clearly intended to enlarge the scope of section 3 — 104’s immunity and to immunize absolutely the failure to initially provide a traffic control device, even where such failure might ‘endanger the safe movement of traffic.’ ” (Emphasis in original.) West, 147 Ill. 2d at 8, 588 N.E.2d at 1108.

As a result of the 1986 amendment (Pub. Act 84 — 1431), section 3 — 104 of the Act now reads as follows:

“Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 104.)

We emphasize the word “initially” in the above quotation because that word is the focus of plaintiffs’ argument that section 3 — 104 of the Act does not provide immunity to defendants. Plaintiffs argue that because

“the [defendants did initially place a warning device for [s]outhbound motorists on [the road in question], the immunity provided in [s]ection 3 — 104 [of the Act] was not applicable. Therefore, logically, the [defendants would still have a duty to place the warning sign in accord with Ch. 95½, [s]ection 11— 304, which incorporates the rules of the Illinois Manual on Uniform Traffic Control Devices.” (Emphasis added.)

We disagree with plaintiffs that defendants’ doing anything initially in this case deprived them of their immunity under section 3 — 104 of the Act.

Plaintiffs claim that the supreme court in West emphasized the importance of the word “initially” when that court referred to section 3 — 104’s language regarding the “ ‘failure to initially provide.’ ” (Emphasis omitted.) (West, 147 Ill. 2d at 5, 588 N.E.2d at 1106.) We disagree that the word “initially” in that phrase possesses the significance plaintiffs claim. Instead, we conclude that a proper construction of section 3 — 104 of the Act since its 1986 amendment requires that the word “initially” simply be read out of the statute.

As previously shown, section 3 — 104 of the Act had two subsections, (a) and (b), prior to the 1986 amendment. Each subsection addressed different concerns. The reference in subsection (a) to “initial” acts by a local public entity was a statutory device to distinguish the acts that subsection (a) covered from those acts covered by subsection (b). Subsection (b) covered “later” acts (even though the word “later” was not in fact used). The “later acts” subsection (b) addressed were the development of a “condition which endangered the safe movement of traffic, and which would not be reasonably apparent to or anticipated by a person in the exercise of due care.” (Ill. Rev. Stat. 1985, ch. 85, par. 3 — 104(b).) The legislature’s 1986 deletion of subsection (b) in its entirety stripped the word “initially” of any meaning, and we view its continued presence in the statute (the old subsection (a)) as simply a legislative oversight.

To clear up any confusion regarding this matter, we now specifically reject plaintiffs’ argument that the word “initially” in section 3 — 104 is somehow a limiting provision. To hold otherwise would, as the supreme court wrote in West, amount to finding an exception that “would effectively swallow the section’s immunity entirely.” West, 147 Ill. 2d at 10, 588 N.E.2d at 1108.

In support of this conclusion, we note that when the supreme court emphasized the word “initially” in West (see West, 147 Ill. 2d at 5, 588 N.E.2d at 1106), it did so merely because that word appears in the midst of the other key words in the section, namely, “failure to provide.” In later discussions in West concerning section 3 — 104 of the Act, the supreme court left out the word “initially” when explaining the statute. For instance, in West (147 Ill. 2d at 7, 588 N.E.2d at 1107), the court wrote the following: “Rather, section 3 — 104 clearly and unequivocally states that the municipality is immune from all liability arising out of the failure to provide a particular traffic control device.” (Emphasis in original.) Further, in West (147 Ill. 2d at 12, 588 N.E.2d at 1109) the court stated: “The legislature [sought to avoid this undesirable result] by enacting section 3 — 104 and expressly immunizing the failure to provide a traffic control device or sign.” While one could conclude that the supreme court inadvertently omitted the word “initially” from each of the above quotations, we conclude that the court realized that the word “initially” added nothing to its desired holding.

Plaintiffs’ final claim is that defendants’ placement of the flashing yellow light constituted wilful and wanton misconduct. We need not resolve that claim because we hold that section 3 — 104 of the Act immunizes not only negligent conduct, but also wilful and wanton conduct. We base this holding on (1) the absence of any language in section 3 — 104 of the Act indicating that the immunity it provides should be limited to negligent conduct, as opposed to wilful and wanton conduct, and (2) the legislature’s demonstrated ability to provide such limiting language when it intends to do so. Indeed, we need look no further than two sections away (section 3 — 106) in the same Act to see where the legislature provides immunity to public entities and employees for certain kinds of recreational injuries “unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 106.) In support of this holding, we again quote the supreme court in West that “section 3 — 104 clearly and unequivocally states that the municipality is immune from all liability arising out of the failure to provide a particular traffic control device.” (Emphasis in original.) West, 147 Ill. 2d at 7, 588 N.E.2d at 1107.

For the reasons stated, we affirm the trial court’s order dismissing plaintiffs’ complaint.

Affirmed.

JUSTICE COOK,

specially concurring:

I am not certain the use of the word “initially” in section 3 — 104 of the Act was a legislative oversight. (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 104.) The word may be used to distinguish between the failure to initially provide a sign, for which there is immunity, and the failure to replace a damaged or stolen sign, for which there may be liability under the town’s duty to maintain its property. (Ill. Rev. Stat. 1991, ch. 85, par. 3-102(a); West, 147 Ill. 2d at 13-14, 588 N.E.2d at 1110.) The argument that once the town initially provided a sign of some sort the immunity was waived was rejected in West. “The creative plaintiff, seeking to premise an action on the failure to provide a particular traffic device, could always circumvent section 3 — 104 by finding and pointing out some other traffic device that was provided.” (Emphasis in original.) West, 147 Ill. 2d at 10, 588 N.E.2d at 1108.

JUSTICE LUND,

dissenting:

I respectfully disagree with the majority opinion. Section 3 — 104 of the Act must be read together with section 3 — 102(a) of the Act, which provides:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” Ill. Rev. Stat. 1991, ch. 85, par. 3-102(a).

Together with this provision is “the traditional rule that local governments have an obligation to maintain public property in a reasonably safe condition.” (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 163, 456 N.E.2d 116, 119.) The duty to maintain governmental property does not require the creation of public improvements. (Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 432, 495 N.E.2d 1259, 1262.) The duty to maintain does not commence until an improvement is actually undertaken. (Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 478, 300 N.E.2d 590, 593; Horrell, 145 Ill. App. 3d at 432, 495 N.E.2d at 1262; Bowen v. City of Harvey (1987), 164 Ill. App. 3d 637, 639, 518 N.E.2d 203, 205.) “A township has no common law duty to *** erect signs ***. A duty only arises when a public improvement is actually undertaken.” Havens v. Harris Township (1988), 175 Ill. App. 3d 768, 771, 530 N.E.2d 284, 285.

In Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, 180-81, 251 N.E.2d 227, 229, our supreme court said:

“We cannot accept the argument. The court has long recognized that where a city undertakes to provide lights, it is liable for injuries which result from deficient or inadequate ones. (Johnston v. City of East Moline, 405 Ill. 460; City of Chicago v. Powers, 42 Ill. 169; City of Freeport v. Isbell, 83 Ill. 440.) In holding a city responsible for injuries thus caused the court is not reviewing the city’s discretion in selecting a plan. It is not controlling or passing upon the city’s estimate of public needs. Nor is it deciding what the ‘best’ kind of improvement may be. It is simply saying that when a city creates a hazardous condition and someone is injured as a consequence it must respond in damages, just as others are required to do. Such is in no sense usurping a legislative power, as suggested by defendant. A municipal corporation, like an individual or a private corporation, is required to exercise its rights and powers with such precautions as shall not subject others to injury. The rule which protects it in the exercise of its governmental functions should not be construed to relieve from liability when the plan devised, if put in operation, leaves the city’s streets in a dangerous condition for public use. (City of Chicago v. Seben, 165 Ill. 371.) After a careful review of the record in the case at bar we think that the evidence of negligence was sufficient to justify the circuit court in refusing to direct a verdict.”

One of the main issues on appeal in the present case is whether section 3 — 104 of the Act did create immunity. Because the dismissal was based upon the pleadings, we must take all well-pleaded facts in plaintiffs’ complaint as true. (Wolfe v. Wolfe (1980), 81 Ill. App. 3d 833, 401 N.E.2d 1111.) Plaintiffs’ complaint alleged the following as negligent and as wilful and wanton acts and/or omissions by the defendants:

(a) failed to put the warning device far enough in advance of the flooding river to enable southbound drivers approaching the bridge from the north to stop in time to avoid driving into the river;

(b) permitted the warning device or barricade on the northerly approach to the bridge to be moved (or removed) and to remain in the wrong location (or to remain absent) when they knew (or should have known) that the absence of such warning signs created a dangerous condition for motorists going south on the road at the bridge;

(c) failed to properly maintain, replace, or position the warning device or barricades immediately north of the flooding river;

(d) failed to provide a warning sign or barricade on the northerly approach to the bridge, in addition to the flashing light, to alert drivers of the flooding, when flooding would not be reasonably apparent to motorists;

(e) failed to provide barricades or warning signs on the northerly approach to the bridge far enough in advance of the flooding river, when similar warnings had earlier been placed on the southerly approach to the bridge;

(f) failed to close the road in the area of the bridge, when defendants had closed the road to northbound traffic;

(g) failed to warn southbound traffic that the road was closed, when defendants had posted such warnings at the intersection for northbound motorists;

(h) failed to post a warning device conforming to the Uniform Manual for southbound motorists;

(i) failed to give an adequate warning of the flooded road to southbound motorists, in that the flashing light was located off the roadway, low to the ground, and was a device customarily used to mark holes in highways or lateral boundaries of roadways and was therefore ambiguous as to its intent and purpose; and

(j) failed to give adequate warning to southbound motorists, in that the flashing light failed to conform to section 6B — 3 of the Uniform Manual (Uniform Manual §6B — 3, at 6B — 2 (warning devices should be placed in a position where they will convey their message most effectively and drivers will have adequate time for a response)) and failed to accompany the light with a sign warning of the flooded roadway as required by section 2C — 40 of the Uniform Manual (Uniform Manual §2C — 40, at 2C — 22).

I agree that if none of the devices as listed in section 3 — 104 of the Act had been installed, then section 3 — 104 immunity would control. However, what is the effect of the installation of the yellow flashing device? I suggest that placing of the flashing warning light removed the section 3 — 104 immunity, or at least created a fact question as to the existence of negligent installation.

Section 3 — 105 Immunity

Section 3 — 105(a) immunity relates to “effect of weather conditions.” (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 105(a).) Section 3— 105(c) provides that “[n]othing in this Section shall relieve the local public entity of the duty to exercise ordinary care in the maintenance of its property as set forth in Section 3 — 102.” Ill. Rev. Stat. 1991, ch. 85, par. 3 — 105(c).

Case law previously cited provides that once a governmental body undertakes to provide a warning or traffic device, immunity does not exist for failing to use ordinary care. This rule should equally apply to sections 3 — 104 and 3 — 105 of the Act.

Proximate Cause

The trial court, in dismissing plaintiffs’ complaint, indicated the only proximate cause was the flooding. Proximate cause is defined as that cause which produces an injury through a natural and continuous sequence of events, unbroken by any effective intervening cause. (Durbin v. St. Louis Slag Products Co. (1990), 206 Ill. App. 3d 340, 356-57, 564 N.E.2d 242, 253.) In addition, there may be more than one proximate cause of an injury. (Ray v. Cock Robin, Inc. (1974), 57 Ill. 2d 19, 23, 310 N.E.2d 9, 11-12; Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 17, 413 N.E.2d 1242, 1246.) Plaintiffs alleged in their complaint that at the time of the accident the asphalt road was dark and there were no lights in the area. They also alleged the bridge angled to the east for southbound motorists, thereby reducing or eliminating a driver’s ability to see the flood conditions in time to stop a vehicle. They further alleged the flashing light was placed immediately south of the bridge on the downward slope leading away from the bridge, but immediately north of the floodwater. They then alleged the improper placement of the light and failure to provide warning devices conforming to the Uniform Manual. The allegations are sufficient to establish that there was a failure to exercise ordinary care and that failure was a proximate cause of the accident which resulted in the injury.

The trial court should be reversed and this cause should be remanded.