author: PRESIDING JUSTICE UNVERZAGT

text:
    THE LABEL PRINTERS, Plaintiff-Appellee, v. JOHN C. PFLUG, Defendant-Appellant.
    Second District
    No. 2—90—0700
    Opinion filed January 15, 1991.
    Rehearing denied January 24, 1991.

      Steven N. Peskind, of Peskind & Peskind, Ltd., of Aurora, and Griffith & Jacobson, of Chicago (James E. Mahoney, of counsel), for appellant.
    Drendel, Schanlaber, Horwitz & Tatnall, of Aurora (David J. Chroust, of counsel), for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, The Label Printers, sought a preliminary injunction in the circuit court of Kane County against defendant, John Pflug, seeking to prohibit him from violating the terms of a noncompetition and nondisclosure agreement which defendant signed when he began working as a salesman for plaintiff. Following a hearing, the trial court granted the preliminary injunction, enjoining defendant from future solicitation of businesses to which he had made sales while employed by defendant, which had been assigned by plaintiff during his tenure with the company or which were prior clients of plaintiff.

On appeal, defendant argues that the noncompetition and nondisclosure agreement is unenforceable. We agree and reverse the judgment entered below.

The evidence as adduced at the preliminary injunction hearing was as follows. On February 24, 1987, plaintiff, a manufacturer and seller of customized pressure sensitive labels, hired defendant as a salesman. On his first day of work, defendant was taken through the plaintiff’s manufacturing plant and shown the different manufacturing machines. Also, plaintiff was shown how to prepare the paper work involved in orders. On the second day, defendant accompanied an experienced sales representative on her calls. On the third day, defendant began making calls of his own.

The testimony showed that defendant was able to walk through the manufacturing plant at any time. Defendant knew the basics regarding how certain labels were manufactured and the materials used in making them. On one occasion defendant came into the plant on a Saturday to learn a particular printing process, flexography.

In the beginning of his employ with plaintiff, defendant was assigned a particular area of concentration bounded on the east by Lake Michigan, on the west by route 294, on the south by the Kennedy Expressway, and on the north by the Illinois/Wisconsin border. Both defendant and William Kane, partner, vice-president, and general manager of plaintiff, stated that, even though defendant was assigned a particular area, his territory was unlimited. Defendant said that he was able to go anywhere in the State as long as no other sales representative had “a card” on a prospective business, i.e., had previously called on the customer. According to defendant, there was no way to know if another salesman had called on a business until he received his end-of-the-month report reflecting the calls he had made. That report would show which customers had been previously called on by someone else.

When defendant first started working for plaintiff, plaintiff gave him certain existing accounts. Later, when defendant’s sales were faltering, plaintiff gave him some more accounts, specifically outside of defendant’s original assigned area of concentration as well as out of State.

Defendant was to call on existing customers assigned to him and to make “cold calls” to pick up new business. When making calls, defendant tried to get a sample of the label which a prospective customer wanted to order. Defendant would then measure it, describe it, and turn in a quote for the prospective order to plaintiff. In a day or two, plaintiff would return defendant’s quote to him with a price to be quoted to the customer. Defendant would then contact the prospective customer with the price. Sometimes a prospective- customer would tell defendant the price offered by a competitor and who the competitor was.

During his employ with plaintiff, defendant’s total sales equalled $26,000 for 1987, $69,000 for 1988, and $117,000 for 1989. The total annual sales of the plaintiff was between $6 million and $7 million. Due to his low sales, defendant learned that plaintiff was going to let him go. Defendant resigned March 23, 1990, and went to work three days later for National Data Label (NDL), a company which also manufactures pressure sensitive labels and which solicits and sells labels in the area in which defendant sold labels on behalf of plaintiff. With NDL, defendant’s sales territory rotates. Of the five territories in the rotation scheme, only one of the territories actually encompassed any of the territory which was defendant’s original assigned area of concentration when he worked for plaintiff.

Following his departure from plaintiff, defendant contacted 40 to 50 potential customers in his former area of concentration. Of the 57 accounts defendant maintained he had when he left plaintiff, defendant admitted having contacted 85% of them on behalf of NDL. Of these accounts, some were already customers of NDL prior to defendant’s accepting employment with NDL. Of those who became customers of NDL since defendant’s employment, the majority were customers defendant had secured on his own while working for plaintiff. Additionally, defendant related that the items purchased by these businesses from NDL were items that the customers had not previously purchased from plaintiff when he was working for plaintiff.

Defendant stated that during his two months with NDL, he had made approximately 700 personal calls on businesses. Of these, about 45 businesses were customers that he had done business with while employed by plaintiff. Defendant maintained that only 19 of the 57 accounts he had at the time he left plaintiff were “house accounts” given to him by plaintiff and that the rest of the accounts were obtained by him through “cold” calls. Plaintiff maintained that at the time of his resignation defendant had 76 accounts of which 35 were house accounts. Of these 76 accounts, plaintiff was the exclusive supplier for only two or three of them. The other customers purchased labels from other suppliers besides plaintiff.

At the time defendant began working for plaintiff, he had signed a noncompetition and nondisclosure agreement. That agreement prohibited defendant from soliciting or selling pressure sensitive labels to any former customers of plaintiff for a period of 18 months after defendant left plaintiff’s employment. Specifically, the agreement provided:

“During his employment with the Partnership and any successor entity thereto, and for a period of eighteen (18) months after the termination of such employment, he will not for himself or for any other person, firm, corporation, partnership, association or other entity, sell or offer for sale, canvass, solicit or deliver, any products which are then sold by the Partnership to any person, firm, corporation, partnership, association or other entity, who is, or has been within the period ending on the date of such termination, a customer of the Partnership.”

Additionally, the agreement prohibited defendant from engaging in any business competition with plaintiff within the geographic area in which he had represented plaintiff. Paragraph 2 of the agreement provided:

“During his employment with the Partnership, and any successor entity thereto, and for a period of eighteen (18) months after the termination of such employment, he shall not directly or indirectly, within any geographical area in which he has at any time represented the Partnership (hereinafter referred to as the ‘Restricted Territory'), enter into or engage in a business which is in competition with the business of the Partnership, either as an individual for his own account, or as a partner or joint venturer, or as an employee, agent or salesperson for any person, or as an officer, director or a shareholder of any corporation, or otherwise. Solicitation or acceptance of orders outside the [Restricted area for shipment to, or delivery in, any of the Restricted Territory shall constitute ‘engaging in business’ in the Restricted Territory in violation of this Agreement.”

On April 12, 1990, plaintiff brought a complaint against defendant for a temporary restraining order, preliminary injunction, and permanent injunction. In its complaint plaintiff asserted that defendant had violated the preceding provisions of the noncompetition and nondisclosure agreement. Plaintiff alleged that since defendant’s resignation from the company, he had solicited the purchase of NDL’s pressure sensitive labels from businesses which were defendant’s customers at the time of his resignation.

Additionally, plaintiff alleged that defendant had also violated paragraph 3 of the agreement by using confidential information obtained during his employment with plaintiff. Paragraph 3 provided:

“Both during and after his employment with the Partnership, he will not use his knowledge of the business or customers of the Partnership for the benefit of himself or any other person, firm, corporation, partnership, association or other entity, or divulge or disclose to any person or entity information or data concerning the business affairs of the Partnership, including the names of customers, names of employees, number or character of contracts, prices, terms or particulars of the trade or business of the Partnership; and he agrees that he will, in all things and in good faith, protect the good will of the business of the Partnership, and keep confidential his knowledge of such business affairs acquired while in the employ of the Partnership.”

At the hearing on plaintiff’s complaint, William Kane, plaintiff’s vice-president and general manager, testified that 90% to 95% of plaintiff’s business consisted of the manufacture of custom labels of an uncommon nature. Kane stated that customers would bring blueprints to plaintiff and explain the particular construction or application they had in mind for a label. Plaintiff would then design a label that would suit the customer’s needs. Frequently, Kane admitted, a customer’s blueprints were given to several manufacturers at one time. Sometimes a blueprint would tell what materials a competitor had used to make the label.

Kane stated that it was commonplace for a salesperson to bring in a particular blueprint and to discuss with plaintiff the application and materials plaintiff would use to produce the label needed. This type of discussion occurred so that the next time a salesperson had a similar request, he would know what to suggest to a customer without having to discuss it with plaintiff.

According to Kane, plaintiff had a tremendous amount of “repeat” business. Many of the existing accounts given to defendant had been customers with plaintiff for periods in excess of six years and as long as 20 years. Kane admitted that of the accounts defendant had when he left plaintiff’s employ, only two or three dealt exclusively with plaintiff. All others dealt with other label suppliers as well.

Kane estimated that probably 50 companies in Illinois manufacture pressure sensitive labels. When asked how many Illinois businesses purchase pressure sensitive labels, Kane replied, “virtually everyone.”

Kane testified that plaintiff’s manufacturing plant is “closed” to outsiders because of certain custom processes which plaintiff has invented and because of certain adaptations it has made to its machinery. Nevertheless, outsiders could gain access to the plant by receiving permission from one of the officers of the company. Employees had full access to plaintiff’s manufacturing plant, and defendant did come in to the plant during his employment.

While working for plaintiff, defendant, as well as all other employees, received a notice requesting him not to share with any outside party any information regarding how certain confidential procedures and manufacturing processes work. Defendant signed and dated the notice, indicating his compliance with plaintiff’s request. Kane stated that only one of its processes was patented and admitted that a patent application, which fully discloses a patent process, is a matter of public record.

When defendant left plaintiff’s employ, he retained the salesman’s copies of his customers’ purchase orders. These copies contained, among other items, the names and addresses of customers and the amount and description of the product ordered as well as the date ordered and the price. Defendant admitted keeping the copies when he resigned but maintained that he had used the information on the copies only once to determine the inventory and needs of a former customer and to submit a competitive bid for NDL, which was accepted. Eventually, defendant turned over his salesman’s copies' to his attorney upon the request of plaintiff’s attorney.

William Iovino, a salesman for NDL, testified that he had been involved in the sale of pressure sensitive labels for 16 years. Iovino stated that he is not the sole supplier of labels for any of his 80 customers and that sometimes a customer will tell him the price that has been quoted by a competitor for a particular label. Iovino identified 10 customers on the list of accounts defendant had when he left plaintiff as customers which had also done business with NDL before defendant came to work there.

Glen Watson, a salesperson with NDL, worked for plaintiff prior to his employment by NDL. Watson related that sometimes customers tell him the materials competitors are using in the production of a label and the price of the label. In most cases, according to Watson, he knew exactly what materials were being used for the production of a label because he had a blueprint or a sample of the label from the customer or the customer provided him with information he needed about the label. Watson identified seven different companies on defendant’s list of former accounts which Watson knew bought labels from several different suppliers simultaneously.

The trial court subsequently entered its order preliminarily enjoining defendant from:

“1. Further solicitation of pressure sensitive label orders from those accounts to whom he had made sales while employed by Label or which were prior existing accounts of Label and which are located within the ‘area of concentration’ which was originally assigned him by Label and as set forth above, or within the zip code areas subsequentlay [sic] assigned in the Milwaukee area.
2. Further solicitation of pressure sensitive label orders from those accounts which were assigned to him by Label during his tenure with them, whether within or without the initial ‘area of concentration’ assigned him.
3. Communicating to any person or entity any information obtained by him during his employ by Label as to names and needs of customers of Label during his tenure there, or of manufacturing processes, printing methods, materials used, sources of materials, prices, quantities, samples, operating methods or other information that might assist that person or entity in competing with Label.”

Subsequently, defendant brought this interlocutory appeal pursuant to Supreme Court Rule 307(a)(1). 107 Ill. 2d R. 307(a)(1).

A preliminary injunction is an extraordinary remedy used only in situations where an extreme emergency exists and serious harm would result in the absence of the injunction. (Carbonic Fire Extinguishers, Inc. v. Heath (1989), 190 Ill. App. 3d 948, 951.) The decision to grant or deny injunctive relief rests within the sound discretion of the trial court. (Southern Illinois Medical Business Associ ates v. Camillo (1989), 190 Ill. App. 3d 664, 672.) Because the court’s findings may not be disturbed absent an abuse of discretion, the reviewing court’s role is limited to determining whether those findings are contrary to the manifest weight of the evidence. Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 15.

The propriety of injunctive relief in the instant case depends upon the enforceability of the restrictive covenants contained in the noncompetition and nondisclosure agreement signed by defendant at the time he was hired by plaintiff, and that determination is a question of law. (Reinhardt, 142 Ill. App. 3d at 15.) Covenants not to compete are, in effect, restraints on trade and will be carefully scrutinized to ensure that their intended effect is not to prevent competition per se. (Capsonic Group v. Swick (1989), 181 Ill. App. 3d 988, 992.) A restrictive covenant may be held enforceable only if the time and territorial limitations are reasonable and the restrictions are reasonably necessary to protect a legitimate business interest of the employer, a determination which necessarily turns on the facts and circumstances of each case. Southern Illinois, 190 Ill. App. 3d at 672; Reinhardt, 142 Ill. App. 3d at 15.

There are two general situations in which an employer’s legitimate business interests may be found for purposes of enforcing a covenant not to compete: (1) where, by the nature of the business, plaintiff has a near-permanent relationship with its customers and but for his employment, defendant would not have had contact with them; or (2) where the former employee learned trade secrets or acquired other confidential information through his employment with plaintiff and subsequently attempted to use it for his own benefit. (Shapiro v. Regent Printing Co. (1989), 192 Ill. App. 3d 1005, 1010-11; Reinhardt, 142 Ill. App. 3d at 16.) Plaintiff, in this court, as in the court below, contends that both situations exist in this case. Defendant maintains that neither situation exists.

Factors to be considered in determining whether a near-permanent relationship exists between an employer and its customers for the purpose of enforcing noncompetition covenants include the time, cost, and difficulty involved in developing and maintaining the clientele, the parties’ intention to remain affiliated for an indefinite period, and the continuity as well as the duration of the relationship. (Reinhardt, 142 Ill. App. 3d at 16.) In the instant case, no evidence was presented to show how long it took to develop plaintiff’s clientele. However, the testimony suggested that clients could be obtained after only a few. meetings. Nor was there any evidence to indicate that plaintiff made any large pecuniary investment in its customers. Although William Kane, plaintiff’s vice-president and general manager, testified that plaintiff had a tremendous amount of “repeat” business, thereby implying that plaintiff’s customers remained affiliated with plaintiff in a continuous relationship, Kane also admitted that most of plaintiff’s customers were affiliated with other suppliers besides plaintiff.

The facts in the case at bar are not unlike those in Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9. In Reinhardt, defendant was hired as a salesperson by plaintiff, a small commercial printing company doing business primarily in the downtown Chicago area. When hired, defendant signed an employment agreement containing post-employment nondisclosure and noncompetition covenants. Although defendant was hired only to procure new accounts, some “house accounts” were given to her. Of the 76 accounts on a list prepared by defendant, 25, according to plaintiff, were house accounts. Defendant secured the other accounts by making “cold calls” to businesses located in the “Yellow Pages” and on the directories of downtown office buildings she canvassed.

When defendant voluntarily terminated her employment with plaintiff two years later and accepted employment as a salesperson with another commercial printing company, also located in downtown Chicago, plaintiff filed a complaint for injunctive relief. The lower court issued a preliminary injunction restraining defendant from violating the noncompetition and nondisclosure covenants in the employment agreement.

On appeal, the appellate court found that plaintiff failed to establish a legitimate business interest which needed protecting. Specifically, the court found that the majority of defendant’s 76 accounts which she had been enjoined from contacting in her new position were “short-term, impermanent customers whose business she was able to solicit not because of her association with plaintiff, but rather, through her own efforts on plaintiff’s behalf and in furtherance of her association with it.” (Emphasis in original.) (142 Ill. App. 3d at 17.) In so finding, the court pointed out that plaintiff had not alleged in its complaint that the customers it sought to enjoin defendant from soliciting were near-permanent ones. The only evidence in this regard was presented by plaintiff’s president, who testified that some of the house accounts had done business with plaintiff for anywhere from 5 to 10 years. Defendant indicated that of the 76 accounts she serviced, all but about 17 of them were obtained by her by making cold calls on businesses.

Other testimony belied plaintiff’s claim of a near-permanent business interest which needed protection. The owner of another commercial printing company testified that the printing industry is highly competitive and that often customers do business with several printers, sometimes simultaneously. Another witness, a former employee of one of the 25 firms plaintiff identified as one of its house accounts, testified that during the time she was responsible for purchasing her company’s printing, salespersons from numerous printing companies frequently called on her and that she ordered from as many as six or seven different printers at a time.

In the case at bar, plaintiff, like the plaintiff in Reinhardt, also did not allege in its complaint the near-permanency relationship of the customers it sought to enjoin defendant from soliciting. The only evidence in this regard was presented by William Kane, plaintiff’s vice-president and general manager, who guessed that some of the accounts assigned to defendant during his employ with plaintiff had been plaintiff’s customers for anywhere from 6 to 20 years. Of these accounts, however, Kane admitted that plaintiff was the exclusive supplier for only two or three of them and that all the remaining customers bought labels from other suppliers as well as from plaintiff.

Plaintiff maintained that at the time of defendant’s departure from plaintiff’s employment, defendant had 76 accounts, 35 of which were assigned to defendant by plaintiff. We note, however, that in arriving at this figure plaintiff has listed some firms several times, the only differentiation being in the shipping addresses of the firms. On the other hand, defendant’s list of accounts, which names each firm only once, sets forth 57 accounts, 19 of which, according to defendant, were assigned to him. Despite the parties’ differing figures, the evidence shows that the majority of accounts defendant serviced were ones whose business defendant secured by making cold calls in industrial parks or by using the Illinois Harris Guide, which lists Illinois manufacturers and what they manufacture as well as giving their locations.

Additionally, the testimony of William Iovino, a salesman for plaintiff’s new employer, NDL, who had been in the pressure sensitive label business for 16 years, revealed that out of the approximately 80 customers he had, no more than 25 had been customers for more than five years. Iovino also testified that NDL was not the sole supplier of labels for any of the 80 customers. Iovino identified 10 firms on the list of customers serviced by defendant when he was employed with plaintiff which had done business with NDL prior to defendant’s change of jobs.

Glen Watson, a salesman for NDL and a former salesman of plaintiff, testified as to the competitive nature of the label business. Watson stated that as a result of a price structuring study he performed for NDL, he discovered that there are 275 label-related companies in the Illinois, Indiana, and Wisconsin area. Additionally, Watson identified companies on defendant’s list of accounts which Watson knew had other suppliers of labels in addition to plaintiff.

Given all the evidence presented, we conclude, as did the court in Reinhardt, that plaintiff, failed to establish the near-permanency of its relationship with its customers and that most of the customers which plaintiff was attempting to enjoin defendant from contacting were customers defendant secured through his own efforts on plaintiff’s behalf and not because of his association with plaintiff.

Having so concluded, we must next consider, as did the Reinhardt court, whether the evidence here established the second type of situation in which a protectable business interest is recognized, i.e., “the acquisition and subsequent attempted misuse by defendant of trade secrets or other confidential information.” Reinhard, 142 Ill. App. 3d at 17.

A trade secret is a plan or process, tool, mechanism, compound or informational data utilized by a person in his business operations and known only to him and such other limited persons to whom it may be necessary to confide it. (Capsonic Group v. Swick (1989), 181 Ill. App. 3d 988, 993.) Factors to consider in determining the existence of a trade secret include the extent to which the information is known outside of the business, as well as to employees and others involved in the business; the extent of measures taken to guard the secrecy of the information; the value of it to the employer and to his competitors; the amount of effort and/or money expended in developing the information; and the ease or difficulty with which it could be acquired or duplicated by others. (.Reinhardt, 142 Ill. App. 3d at 17-18.) Information is not regarded a trade secret if it is generally known within an industry, or fully disclosed by the company through its own catalogs or literature, disseminated throughout the industry, or by the products themselves. 142 Ill. App. 3d at 17.

In certain circumstances a customer list can constitute. a trade secret (Cincinnati Tool Steel Co. v. Breed (1985), 136 Ill. App. 3d 267, 277), but only where the customer lists or other customer information have been developed by the employer over a number of years at great expense and kept under tight security. (Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 358.) The same type of information, however, is not a trade secret where it has not been treated by the employer as confidential and secret, was generally available to other employees and known by those in the trade, could be easily duplicated by reference to telephone directories or industry publications, and where customers did business with more than one company or otherwise changed businesses frequently so that they were known to the employer’s competitors. 99 Ill. App. 3d at 358.

Plaintiff’s complaint alleged that during his term of employment with plaintiff, defendant had “obtained certain confidential information, including but not limited to manufacturing processes, customer names and requirements, and pricing information.”

Plaintiff maintained through testimony by William Kane that it kept a “closed shop,” i.e., no outsiders other than employees were allowed into the manufacturing area, implying thereby that its manufacturing processes were secret. Kane explained that the plant was closed to outsiders because a lot of plaintiff’s custom processes were invented by plaintiff and because plaintiff had made certain adaptations to the machinery it used. Kane testified, however, that only one of plaintiff’s label manufacturing processes was patented, and Kane admitted that patented processes are matters of public record. Kane also indicated that outsiders did have access to plaintiff’s plant once they received the permission of one of the officers. Moreover, Kane stated that plaintiff did not require its customers to keep confidential the information plaintiff provided to them. Thus, customers could reveal to others the processes or materials involved in producing their relative labels.

Kane admitted that the blueprints customers often provided to plaintiff for use in the design and production of a custom label were frequently submitted to several manufacturers simultaneously. Additionally, in many cases a blueprint or a label could be used to determine what materials a competitor used to produce the label. It was apparent from the testimony presented, therefore, that any information regarding the manufacture and design of its custom labels which plaintiff claimed was confidential was information which could be acquired or duplicated with relative ease.

Moreover, in a brochure which plaintiff developed for dissemination to customers and prospective customers, plaintiff presented pictures of machinery it used for different manufacturing processes, as well as descriptions of different tasks its machines could perform. Although William Kane indicated the brochure was produced nearly eight years ago, no evidence was presented to show that plaintiff’s machinery and processes had changed since that time so as to make the information on the brochure meaningless.

Plaintiff presented no evidence that its customers were acquired over a number of years at great expense and kept under tight security. William Kane admitted that plaintiff had no master list of its customers and that the only master file it had of its customers was comprised of the office copies of the customers’ orders. According to defendant, he did not know the identity of all of plaintiff’s customers, a point which plaintiff must concede as true since plaintiff testified that no customer list existed. Because no list of customers existed, defendant occasionally made calls on existing customers without realizing that fact until the end of the month when he received his “call” report. On that report plaintiff would indicate which businesses defendant called upon were already customers of plaintiff.

Moreover, the list of accounts prepared by defendant could not be considered confidential. The accounts named thereon were generated by defendant through “cold” calls in industrial parks or by. reference to the Illinois Harris Guide, a fact demonstrating that the list could be readily duplicated by anyone in the field. (Reinhardt, 142 Ill. App. 3d at 19.) Of those accounts, many were known to plaintiff’s competitors by virtue of the fact that, with the exception of two or three of plaintiff’s customers, the remainder did business with other label suppliers besides plaintiff.

Plaintiff’s claim that defendant possessed confidential pricing information appears to be based on the fact that defendant did not return his copies of customer’s sales orders at the time he was in plaintiff’s employ. Defendant testified that, prior to returning the copies upon request of plaintiff’s attorney, he had used the information on these copies only once to approach a former customer and to obtain an order. That information included a customer’s name, the date of its order, a description of the product ordered, the quantity ordered, and the price. Defendant stated that he made no records of the information on the orders, and plaintiff did not controvert this testimony.

Defendant testified that when working for plaintiff he had no discretion in determining the prices of items ordered and that he had no knowledge of the underlying costs involved in the manufacture of any particular label or of the markups or profit margins. The only information regarding pricing which defendant possessed were the prices plaintiff directed defendant to quote to customers. This was information which could be readily ascertained by any competitor since the evidence showed that many customers would willingly tell a salesperson the prices being quoted by a competitor. Plaintiff failed to demonstrate that the figures supplied to defendant for use in quoting the final cost of an order were confidential or substantially different from those of its competitors. Reinhardt, 142 Ill. App. 3d at 20.

We conclude that defendant, during his employment with plaintiff, had not acquired any trade secret or confidential information which was not already known to plaintiff’s competitors or which could not be easily ascertained by them.

From our review of the record, we find, therefore, that plaintiff failed to establish the existence of a legitimate business interest which needed protecting and that, therefore, the issuance of a preliminary injunction was against the manifest weight of the evidence. Having so found, we find it unnecessary to address the defendant’s contention that the noncompetition covenant was excessively broad in its geographic scope. Reinhardt, 142 Ill. App. 3d at 20.

The order of the circuit court of Kane County granting plaintiff’s motion for preliminary injunction is reversed.

Reversed.

DUNN and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN JUSTICE INGLIS,

license: Public Domain

text:
    THE CITY OF ROCHELLE, Plaintiff-Appellee, v. HAROLD SUSKI, Defendant-Appellant.
    Second District
    No. 2—89—0848
    Opinion filed December 21, 1990.

      INGLIS, J., dissenting.
    John M. Nelson, of Clark, Nelson & Newton, of Rockford, for appellant.
    Dennis R. Hewitt, of Rochelle, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Harold Suski, appeals from a judgment in favor of plaintiff, the City of Rochelle (City), in a forcible entry and detainer action. Defendant raises two issues on appeal: whether the trial court should have denied plaintiff relief on the basis of the equitable doctrines of laches, adverse possession, or abandonment; and whether the trial court erred in ruling that testimony about a pending offer to purchase defendant’s property was inadmissible.

Plaintiff, the City of Rochelle (City), filed a complaint on September 6, 1988, alleging that mobile homes owned by defendant encroached on a portion of 13th Street in Rochelle and also on the alley between 12th and 13th Streets. Defendant filed an answer and counterclaim seeking to quiet title to the property at issue. Defendant has not appealed any aspect of the cause relating to his counterclaim.

At the. bench trial, Thomas Simmons, a civil engineer, testified that he surveyed a portion of land in the City of Rochelle. His survey showed that two of the trailers in defendant’s trailer park encroached onto 13th Street, and one encroached on the alley. The plat dedicating the land for 13th Street and the alley was recorded in 1875. Simmons described the area shown in the plat. A driveway runs north from Avenue B into the trailer park and curves to the east. The part of the driveway that runs north and south, about a half block in length, is on the land dedicated for 13th Street. Running parallel to the area dedicated for 13th Street is a road “used by the city and by DelMonte [sic]” corporation. Simmons testified that this road is used “to access other parcels.” Del Monte has gates on the road.

Ray Valenti, a general contractor, testified that to remove the offending trailers from the dedicated areas would require a change in the gas and sewer lines. It would cost defendant approximately $25,000 to relocate the trailers and dig new lines.

Defendant called Les Reed to testify about a proposed sale of the trailer park to Reed. Reed offered to purchase the trailer park for $192,000. The sale was contingent “upon this particular situation.” When defendant attempted to question Reed about what he meant by “this particular situation,” plaintiff objected, and the court sustained that objection on the grounds of relevancy. Defendant sought to elicit testimony to show the value of the trailer park if the offending trailers were removed. The court decided that such evidence was irrelevant to the issue of laches.

Defendant testified that he owns the trailer park on 12th Street in Rochelle. Defendant purchased the property in 1982. Prior to buying the trailer park, he visually inspected it and was told that the property ran along the fence line on the west to 12th Street on the east. Defendant did not have the property surveyed. Defendant estimated that the offending trailers were installed between 1969 and 1974 based on the model of the trailers. At the time of trial, the trailer park was full, and there were no other available gas and sewer hookups. Plaintiff notified defendant of the rights-of-way approximately V-k years before trial.

Harold Rogers testified that he has been the building inspector for the City of Rochelle since July 1987. Prior to becoming the building inspector, Rogers had been a contractor in the Rochelle area for 34 years. Rogers believed that the trailer park had been in existence since the late 1940’s or early 1950’s. He estimated that the City issued permits for the installation of the plumbing for the offending trailers in 1968 or 1969. Rogers testified that, as building inspector, he provides permits for the installation of gas and sewer lines. He explained that to make “anything but ordinary repairs,” the owner of property would have to get a permit from the City. Rogers gave defendant notice of the encroachments in August 1987.

Plaintiff called Larry Eykamp to testify in rebuttal. Eykamp stated that he had experience moving and disconnecting trailers. According to Eykamp, the cost of removing the offending trailers and setting them up in another trailer park would be $500. This price presumes that the hookups for the utilities are already in place.

In addition to photographs, the parties submitted into evidence a copy of the plat dated 1875 and a copy of the survey by Simmons which identified the location of the offending trailers. After hearing arguments, the court stated that it wanted to research further the applicable law before ruling. The parties subsequently submitted briefs in support of their positions. In its memorandum opinion, the court explained that under Worley v. Ehret (1976), 36 Ill. App. 3d 48, the party seeking to assert the defense of laches must have used reasonable diligence and, because defendant did not have the property surveyed before he bought it in 1982, he did not use reasonable diligence. The court accordingly found for plaintiff.

On appeal, defendant first contends that the equitable defense of adverse possession should apply to this case. However, we agree with plaintiff that adverse possession cannot be asserted against a public body. Terwelp v. Sass (1982), 111 Ill. App. 3d 133,138-39.

Defendant next argues that the trial court should have barred plaintiff’s relief on the basis of the equitable doctrine of laches. Laches is a doctrine which bars a plaintiff relief where, because of delay in asserting a right, the defendant has been misled or prejudiced. (People ex rel. Nelson v. Village of Long Grove (1988), 169 Ill. App. 3d 866, 874-75.) While a mere delay in asserting a right does not constitute laches, if the defendant has relied on the circumstances complained of to his detriment and the delay has been unreasonable, it would be inequitable and unjust to grant relief to the plaintiff. (Ole, Ole, Inc. v. Kozubowski (1989), 187 Ill. App. 3d 277, 286.) Laches may be asserted against the State in proper circumstances to defeat the State’s fee interests. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 447; see also Wachta v. Pollution Control Board (1972), 8 Ill. App. 3d 436, 439.) The supreme court in Hickey, quoting City of Quincy v. Sturhahn (1960), 18 Ill. 2d 604, 614, stated:

“ ‘While situations may arise which justify invoking the doctrine of estoppel even against the State when acting in its governmental capacity, [citation] we have always adhered to the rule that mere nonaction of governmental officers is not sufficient to work an estoppel and that before the doctrine can be invoked against the State or a municipality there must have been some positive acts by the officials which may have induced the action of the adverse party under circumstances where it would be inequitable to permit the corporation to stultify itself by retracting what its officers had previously done.’ ” (Emphasis added.) (Hickey, 35 Ill. 2d at 448.)

The defense of laches may also be asserted against a municipal corporation. Village of Northbrook v. County of Cook (1984), 126 Ill. App. 3d 145,148.

The application of the equitable doctrine of laches is a matter of the trial court’s discretion. (Ole, Ole, 187 Ill. App. 3d at 286.) The trial court here refused to invoke the doctrine based on Worley (36 Ill. App. 3d .48). In Worley, the subject property had been in the plaintiff’s family since 1912. The plaintiff acquired title to the property in 1968. In 1969, the plaintiff learned that several buildings encroached on the property. The plaintiff had the property surveyed in 1971. The survey showed that the deeds of the adjoining landowners described land that was entirely within the plaintiff’s property, yet the land they were occupying was in a different area and partially encroached on the plaintiff’s property. The deed was executed in 1955. The defendant was not the original holder of the deed. The adjoining property had not been surveyed prior to defendant making improvements on the property, nor had defendant obtained an abstract of the title or title insurance. The court stated that although the plaintiff’s predecessor in title could have discovered the encroachments earlier, “it is equally true that defendant and her predecessor in ‘title’ could similarly have discovered the invalidity of their deeds and the intrusion upon plaintiff’s land prior to purchasing their deed or constructing the clubhouse.” (Worley, 36 Ill. App. 3d at 56.) We determine that Worley is inapposite for two reasons.

First, we have been unable to discover any authority for the proposition that the party asserting laches must prove diligence. On the contrary, the defendant often knows of the plaintiff’s right in' the. property. It is the plaintiff’s failure to enforce the right which is the basis of the equitable doctrine of laches. (Nancy’s Home of the Stuffed Pizza, Inc. v. Cirrincione (1986), 144 Ill. App. 3d 934, 940.) Even if defendant had the property surveyed and discovered the encroachment, he would still be entitled to assert the doctrine of laches.

Second, the Worley case is factually distinguishable from this case. In Worley both parties went about their conflict without any detrimental reliance upon which laches could be based other than the passage of time. In this case, in addition to the passage of time, it would appear the plaintiff affirmatively acted upon the issuance of permits upon which the defendant may rely and by which the plaintiff should be bound.

Plaintiff responds that, if defendant was allowed to assert the defense of laches, the result would be “an enormous burden” on municipalities, since they continually would have to inspect and survey dedicated rights-of-way and institute proceedings immediately. We disagree.

One could reasonably conclude from the record that plaintiff issued permits for the installation of the offending trailers. Thus, plaintiff would have explicitly allowed defendant’s predecessor to place the trailers on the rights-of-way. Since plaintiff must issue building permits before any permanent structures may be erected, it can require the landowner to submit a survey to determine if a right-of-way may be in jeopardy. Lesser structures which may be erected without a building permit will not tip the equities against plaintiff to bar recovery. See Zemple v. Butler (1959), 17 Ill. 2d 434 (adjoining landowner denied the defense of laches where encroachment consisted of a driveway, shrubs and a basketball court); Kennedy v. Town of Normal (1934), 359 Ill. 306 (adjoining landowner denied the defense of laches where encroachment consisted of a birdhouse, shrubs and bushes); Russell v. City of Lincoln (1903), 200 Ill. 511 (adjoining landowner denied the defense of laches where encroachment consisted of a fence).

The issue is whether plaintiff’s delay in asserting its right has prejudiced defendant and, if so, whether the cost of removing the encroachments is great and the corresponding benefit to plaintiff is minimal. See Terwelp, 111 Ill. App. 3d at 138-39. Cf Hawthorne Bank v. Village of Glen Ellyn (1987), 154 Ill. App. 3d 661 (village did not “act positively” and did offer to compensate the opposing party for the cost of modification to avoid interference).

The trailer park was established in the late 1940’s or early 1950’s. The offending trailers were installed prior to 1970, yet plaintiff did not seek to enforce its rights until 1987. Defendant presented evidence that it would cost him over $25,000 to relocate the trailers onto his property. Additionally, plaintiff has not shown any need for the alleyway. Plaintiff’s need for the property, if any, is minimal because 13th Street would only be two blocks long, and there is another road which provides the same access. The relative burdens as between the parties are damages in excess of $25,000 to defendant and virtually nil to the plaintiff. Therefore, we conclude that the trial court may have erred in not barring plaintiff’s relief on the basis of laches. Furthermore, the plaintiff’s issuance of building permits would constitute an estoppel precluding plaintiff’s objection to the uses subject to the permits. See Wachta, 8 Ill. App. 3d at 440.

Defendant further argues that plaintiff did not comply with “An Act to revise the law in relation to plats” (the Plat Act) (Ill. Rev. Stat. 1987, ch. 109, par. 2 et seq.) when it dedicated the street and alley. However, defendant made this argument for the first time in his reply brief. It is therefore waived. See Ray Dancer, Inc. v. DMC Corp. (1988), 175 Ill. App. 3d 997,1005.

Defendant next contends that abandonment was a proper defense to the forcible entry and detainer action. Normally, nonuse by a municipality does not constitute an abandonment of a right-of-way. (Lowenthal v. City of Highland Park (1966), 70 Ill. App. 2d 236.) The exception to the above maxim arises when the nonuse is of long-standing duration and, in reliance thereon, adjacent owners have made improvements of such a lasting and valuable character as to prevent the assertion by the public body to repossess itself of the road. The extent of the pecuniary loss and sacrifice to the party making the improvement must be great. Abandonment usually requires an affirmative act on the part of the municipality. It would appear the City acted affirmatively by the issuance of building permits allowing the construction of the encroaching improvements. The trial court did not consider the merits of the defense of abandonment because it determined a lack of diligence on the part of defendant. We determine that the same reasoning we applied to the laches defense is applicable to the defense of abandonment. The trial court never addressed the merits of abandonment, and we see no need to preempt the trial court’s responsibilities concerning a further hearing where the question of the issuance of building permits may be fully developed and findings of fact, determinations of law and the exercise of discretion, if necessary, can be adjudged.

The defendant finally contends that the trial court erred in refusing to admit testimony regarding the pending offer to purchase the defendant’s trailer park.

We are hampered in our review because no offer of proof was made. Therefore, we do not know if the testimony would have been relevant to the equitable defenses of laches or abandonment. We therefore are unable to address the merits of this contention and, therefore, deem it waived.

The judgment of the circuit court of Ogle County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

GEIGER, J., concurs.

JUSTICE INGLIS,

dissenting:

I respectfully dissent from the well-motivated but potentially dangerous position adhered to by the majority. Ownership, use, control and benefit from public lands is a trust accepted by public officials. (City of Quincy v. Sturhahn (1960), 18 Ill. 2d 804, 615.) The courts should be cautious in approving a violation of that trust whether by error, ignorance or malevolence. The decision of the majority will allow the mobile home park owner to reap profit from the rental of public land for an indeterminate period of time with no benefit to the public, thereby denying the public the right to use or improve the property for its intended purpose.

The majority agrees with the widely accepted rule that adverse possession cannot be asserted against a public body. (Terwelp v. Sass (1982), 111 Ill. App. 3d 133, 138.) Although the majority asserts that title cannot be lost to public lands by adverse possession, it ultimately finds that use of and benefit from public lands can be obtained by way of laches or estoppel. While it is apparently an accepted proposition of law in Illinois that laches (Village of Northbrook v. County of Cook (1984), 126 Ill. App. 3d 145, 148) and estoppel (Wachta v. Pollution Control Board (1972), 8 Ill. App. 3d 436, 439) may be asserted against a municipal corporation, the cases cited by the majority do not apply such equitable principles against a municipality to deprive it of title, use or benefit of public land. They are used to curb a municipality from conduct that would deprive another of use or benefit of nonpublic property.

I do not agree that the protection provided to the public in Terwelp should be so easily circumvented by the doctrine of laches or estoppel. To do so could result in public officials allowing improper profit from the public lands they are entrusted to preserve due to their own inattention to duty or, worse, by intentional failure to act promptly.

The City may have improperly issued building permits, but the mobile home park owner voluntarily improved public lands for his own financial profit. It has been held that “[tjhose who voluntarily improve public lands to which they have no right or title, acquire no right, vested or otherwise, to continue to maintain thereon that which they have erected.” (Sturhahn, 18 Ill. 2d at 615.) Title to public lands, once acquired by a municipality, cannot be lost by mere nonaction of the public officers or impaired by the voluntary acts of others. Sturhahn, 18 Ill. 2d at 615.

The protection afforded to public lands was illustrated in Trustees of Schools v. Village of Cahokia (1934), 357 Ill. 538. In Cahokia, relief prayed for on the grounds of estoppel was denied to a public school that had built a school house over 60 years ago on a parcel of ground dedicated as a public square. If a school cannot impair the right of a Village after using municipality property for 60 years, then a profit-motivated business person should receive no right to use public land by the application of laches. I, therefore, respectfully dissent.


author: JUSTICE NICKELS

text:
      In re MARRIAGE OF JAMES SEYMOUR, Petitioner-Appellant, and SCHERYL SEYMOUR, Respondent-Appellee.
    Second District
    No. 2—90—0411
    Opinion filed December 19, 1990.

      James R. Truschke and Thomas R Murphy, both of James R. Truschke & Associates, P.C., of Arlington Heights, and Michael J. DuWaldt, of Franks & Filler, of Marengo, for appellant.
    Thomas F. Loizzo, of Kell, Nuelle & Loizzo, of Woodstock, for appellee.
    Emery L. Duffy, of Crystal Lake, guardian ad litem.

   JUSTICE NICKELS

delivered the opinion of the court:

Petitioner, James Seymour, appeals the judgment of dissolution of marriage (the decree) entered by the circuit court after three days of trial. He raises two issues: first, that the trial court erred in ordering maintenance of $750 per month when respondent, Scheryl Seymour, was choosing a low-paying vocation; and second, that the trial court erred by granting custody of the parties’ daughter, Jana, to respondent. Respondent contends the trial court’s rulings regarding maintenance and custody were not an abuse of the court’s discretion. The attorney appointed by the trial court to represent the children has also filed a brief in which he asks the court to affirm the custody order but does not address the maintenance issue.

Subsequent to the trial, the circuit court entered a 20-page memorandum which became the basis for the decree. The court summarized the evidence and its impressions of the parties and children. Petitioner was granted the sole custody of Jeffrey, who was almost 18 years old and would soon attend a college or seek employment. Respondent was granted the sole custody of Jana, who was nine years old and in the fourth grade. The decree directed that the children spend weekends together, i.e., together they would spend alternating weekends with the other parent. A visitation schedule was also specified. The court ordered each parent to use 20% of his or her net income for child support, i.e., petitioner would pay 20% of his net monthly salary of $3,230, or $646, and respondent would pay 20% of her net monthly salary of $571, or $114.20. Petitioner was ordered to pay respondent the difference of $532 every month. In addition, the court ordered petitioner to continue deducting $400 per month from his gross income to contribute to a section 401(k) (26 U.S.C.A. §401(k) (West Supp. 1990)) account established for the purpose of financing the children’s college education.

The court divided the marital estate with 52% to respondent and 48% to petitioner because respondent would not be able to accumulate capital as a minister or as a teacher and respondent needed more funds to complete her education and preserve her investment in her

vocation. This distribution resulted in a projected total of $86,700 for respondent and $80,000 to the petitioner, before petitioner’s vested pension plan was divided. The distribution also included proceeds from the sale of the marital residence, which was to be sold before Jana entered a new school upon her completion of the fifth grade.

The court stated it was troubled in determining the proper amount of maintenance because respondent had chosen a vocation which pays low wages. Nevertheless, the court ordered petitioner to pay respondent $750 per month, subject to review by the court after 30 months. The court offered the following summary of the parties’ monthly income:

Petitioner contends in his first argument that the court erred in granting maintenance in the amount of $750 per month when respondent was capable of earning a better salary. Respondent graduated in 1971 with a bachelor of science degree and a teaching certificate that enabled her to teach orthopedically handicapped children. She kept the certificate current although she had made no inquiries into possible teaching positions in over two years and had never in fact used her certificate in a teaching position. For the last few years she had attended Bethany Theological Seminary to become a Congregational minister, and she would graduate in June 1990.

A court may award maintenance only if a spouse:

“(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment ***, or
(3) is otherwise without sufficient income.” (Ill. Rev. Stat. 1989, ch. 40, par. 504(a).)

The court should consider all factors in determining the amount of maintenance, including:.

“(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently ***;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of both parties;
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
(7) the tax consequences of the property division upon the respective economic circumstances of the parties.” Ill. Rev. Stat. 1989, ch. 40, par. 504(b).

Petitioner notes that the Illinois Marriage and Dissolution of Marriage Act (Act) creates an affirmative duty on a spouse requesting maintenance to seek and accept appropriate employment. (In re Marriage of Philips (1990), 200 Ill. App. 3d 395, 405; In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 328-29.) A spouse cannot use self-imposed poverty as a basis for claiming maintenance when she has the means of earning more income. (In re Support of McGrew (1980), 90 Ill. App. 3d 27, 32.) The award of maintenance to a spouse capable of improving her income can be an abuse of discretion. (In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 719.) While petitioner does not contest respondent’s privilege to pursue her vocation, he does not believe that he should be punished by paying a large maintenance award to increase her income when she is capable of earning more and could have proved she could earn more if she started teaching rather than preaching prior to the dissolution of marriage. Petitioner contends that if he chose to become a minister, the court would still order maintenance at a level commensurate with his past earnings.

The trial court in its memorandum addressed these concerns. It noted respondent was seeking more than mere rehabilitative maintenance but a new career as well. The court warned respondent that petitioner was not responsible to support her according to their past standard of living if she was unwilling to work for financial security. The standard of living must fall' when the number of households increases but the income does not rise by the same level. The trial court found that exhausting her share of the property distribution before she could seek maintenance was inappropriate. The court cited In re Marriage of Magnuson (1987), 156 Ill. App. 3d 691, 699 (the court must consider the amount a recipient can reasonably contribute for her support and rehabilitation), In re Marriage of Gentry (1989), 188 Ill. App. 3d 372, 377 (the' court has an obligation to monitor a recipient’s progress in attaining self-sufficiency), and In re Marriage of Courtright (1989), 185 111. App. 3d 74, 78 (maintenance kept in force where recipient had made good-faith effort to become self-sufficient after 28 years of homemaking), in its memorandum.

The trial court’s determination in awarding maintenance will not be disturbed absent an abuse of discretion. (Philips, 200 Ill. App. 3d at 405.) While petitioner is correct in his citation of the law, the evidence adduced at trial does not show the trial court abused its discretion. The cases cited by petitioner, while helpful in our determination, are distinguishable in the light of the facts and conduct of the parties in this cause.

In Wisniewski, the trial court clearly abused its discretion in awarding $600-per-month maintenance for an indefinite period when the recipient had only a $200 deficit of income over expenses, had a college education, was pursuing a new degree, and would, as a result of the payment, have disposable income of $400 while the payor would be left with only $323. (Wisniewski, 107 Ill. App. 3d at 719.) In McNeeley, the recipient made no attempt to find employment or to rehabilitate her lack of employment history, and the appellate court ordered that maintenance be reduced and be modified after the passage of enough time for her to establish employment. (McNeeley, 117 Ill. App. 3d at 328-29.) In McGrew, the recipient received property of $330,000 but failed to lease her lands at a market rate and was also capable of working. McGrew, 90 Ill. App. 3d at 32.

Based on the facts in the record, the decision by the trial court was reasonable. The amount respondent could earn as a teacher is unknown. She had never in fact earned pay as a teacher. Her degree was 18 years old, and she guessed that she would be required to take refresher courses to qualify for a position. The amount of the payment, $750, is not grossly disparate to petitioner’s salary, even after the $400 section 401(k) deduction. The trial court treated the deduction as a subtraction prior to the determination of net income. The trial court decided the respondent’s income capability based on the only information available to it. Moreover, the respondent’s assertion that she needed $675 per month for rent and $92 per month for electricity, which were based on the mortgage and utility bills for the marital residence, was left unrebutted. Since respondent and Jana were to retain the marital residence until Jana enrolled in a different school, with respondent responsible for the mortgage payments and other costs, it was reasonable for the court to order sufficient maintenance to pay the housing costs. Finally, the trial court ordered the maintenance to be reviewed after 30 months for petitioner’s concerns to be addressed, so that, as in Gentry, respondent’s progress could be monitored and the amount of the maintenance adjusted according to her actual needs at that time and according to the lifestyle imposed by her chosen vocation. Therefore, we affirm the trial court’s determination regarding maintenance.

Petitioner also argues that the trial court erred in granting custody of Jana to respondent. Petitioner contends that the two children should not have been separated and the semblence of the family unit broken when Jeffrey and Jana related well with one another. (Temple v. Temple (1977), 52 Ill. App. 3d 851.) Although Jana expressed her desire to live with respondent, such a preference is not dispositive (In re Marriage of Lovejoy (1980), 84 Ill. App. 3d 53), especially when an older and more mature child has stated a preference to live with the other parent (Rosenberger v. Rosenberger (1974), 21 Ill. App. 3d 550, 553). Petitioner also alleges that respondent waged a campaign to influence Jana’s preference and that the testimony of Jana’s counsellor, Dr. Schaper, was biased by his affiliation with respondent’s church and employer.

The trial court’s determination of custody will not be reversed unless there has been a clear abuse of discretion or the decision was contrary to the manifest weight of the evidence. (In re Marriage of Wiley (1990), 199 Ill. App. 3d 169, 175.) The trial court has broad discretion over the matter of custody, which is governed by section 602 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 602). (Wiley, 199 Ill. App. 3d at 175.) The.primary and paramount consideration is the best interest and welfare of the child. (199 Ill. App. 3d at 175.) We do not believe the record reflects that the trial court abused its discretion in granting custody of Jana to respondent.

Traditionally, courts have held that a custody order which separates siblings is not considered to be in their best interests, but it can be under some circumstances. (In re Marriage of Hazard (1988), 167 Ill. App. 3d 61, 70.) Jeffrey is now 18 years old and at the time of the trial was intending to attend college. Thus, the fact of the separation will become moot in a short period of time. Moreover, any weight given to the eldest child’s preference was reduced in this case by the trial court’s finding that Jana was relatively mature for an eight-year-old girl. (See In re Marriage of Edsey (1990), 199 Ill. App. 3d 39, 55.) Keeping a family together is not an overriding factor when there is a substantial disparity in the ages of the siblings and other important factors are in the best interests of a young child. (199 Ill. App. 3d at 56.) In this cause, the trial court found many factors which supported the finding that it was in Jana’s best interests to stay with her mother.

Jana, during her in camera testimony, stated that she loved both her parents and did not want to hurt either of them by choosing the other; nevertheless, she felt more comfortable living with her mother, with whom she could talk more freely. While she enjoyed many fun activities with petitioner, such as sledding or skating, and appreciated his help with mathematics and art and his good care of her, she also enjoyed going to church, choir and bell ringing with respondent.

Jana stated her decision was not influenced by respondent’s search for an apartment with a swimming pool, especially since respondent had chosen a different apartment. The trial court had the opportunity to observe and to hear the child testify and was in the best position to judge the witness’ credibility. (In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 499.) The record supports the trial court’s finding because Jana was bright and engaging and well articulated the reasons underlying her preference. We will not disturb the trial court’s finding.

The trial court further found that both parties had tried to influence Jana’s choice by buying ice cream and enlisting and involving the children in the various disputes. Each party complained that the other party had attempted to undermine the other’s discipline and authority. The trial court was fully aware of respondent’s attempts to influence Jana but still found Jana made an independent decision regarding with whom she would live. We note here that the trial court did find both parties to be loving and concerned parents and that both were fit and proper persons for custody. Each party admitted that the other party was a good parent.

Dr. Schaper also testified that, after several counseling sessions with Jana, he determined that she expressed her preference for living with respondent. Jana had stated to him her preference in words and in exhibits she had prepared with his instructions. Dr. Schaper stated that he had made no recommendations to Jana and that he could not render an opinion regarding the capabilities of either of the parties to be a custodial parent, although he thought a mother was a better role model for a daughter. Dr. Schaper also admitted that he was affiliated with the United Church of Christ, which was respondent’s church and employer, that respondent had been primarily paying the bills for counseling Jana, that he had counseled respondent independently, and that when a child is asked with whom she would rather reside, the child will more likely choose the parent that physically brought the child to the counselor, namely, the respondent. A court is not obliged to follow the advise of an expert. (Edsey, 199 Ill. App. 3d at 55.) The trial court noted that petitioner was suspicious of Dr. Schaper’s motives but stated that it could determine no bias or prejudice in his evaluation caused by his affiliation or his greater exposure to respondent. The record reflects he was candid about his education and the scope of his evaluation. The items created by Jana which formed part of his opinion that Jana did in fact prefer to reside with respondent were introduced into evidence. The trial court’s finding was not manifestly erroneous, and we will not disturb this finding.

The trial court’s decision to choose a custodial parent when both parents are fit and capable is always difficult. The record reflects that the trial court considered.all the relevant factors, the bias in the witnesses and the campaigns to influence the children’s preferences. We cannot say the trial court abused.its discretion and must affirm the custody determination.

For the above reasons, the judgment of the circuit court is affirmed.'

Affirmed.

INGLIS and BOWMAN, JJ., concur.


author: JUSTICE INGLIS

text:
    INSURANCE COMPANY OF NORTH AMERICA, as Subrogee of Lewis Truck Lines, Inc., Plaintiff-Appellant, v. TIMOTHY R. ANDREW et al., Defendants-Appellees (Victor Mikenas, Plaintiff).
    Second District
    No. 2—90—0148
    Opinion filed December 21, 1990.

      Francis William Golden, of Modesto, Reynolds & McDermott, of Chicago, for appellant.
    Dalton Grief, of Grief, Bus & Blacklidge, of West Chicago, and John Salzeider, of Magiera & Morrissey, of Chicago, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Insurance Company of North America, filed suit as subrogee of Lewis Truck Lines, Inc., and for' Victor Mikenas, individually, an injured employee, seeking, in part, reimbursement of workers’ compensation benefits paid to Mikenas. The named defendants in the suit are Timothy Andrew and Rely Maintenance Seal Coating & Stripping Company. Essentially, plaintiff raises only one issue on appeal: whether the trial court erred in dismissing the complaint based on a release signed by an injured employee who has accepted workers’ compensation benefits under the provisions of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). We reverse and remand.

Plaintiff filed its complaint on September 29, 1989. It alleged that Lewis Truck Lines, Inc. (Lewis), was the named insured on a policy issued by plaintiff to provide coverage for injuries suffered by Lewis’ employees within the scope of their employment. On October 6, 1987, Victor Mikenas, an employee of Lewis, was injured when he was struck by a vehicle operated by defendant Timothy Andrew. Both Mikenas and Andrew were allegedly acting within the scope of their employment at the time of the accident. Andrew was operating a vehicle owned by his employer, defendant Rely Maintenance Seal Coating & Stripping Company.

The complaint alleges that Andrew was negligent in striking the vehicle owned by Lewis and that, as a result of Andrew’s negligent acts, Mikenas has suffered permanent and crippling injuries. The complaint further alleges that, as a result of the injuries suffered by Mikenas, plaintiff has paid Mikenas workers’ compensation benefits for medical bills and temporary total disability. A claim is pending for Mikenas’ permanent partial disability. The complaint asked that the court award damages on behalf of plaintiff and Mikenas.

On December 4, 1989, defendant Andrew filed a motion to dismiss plaintiff’s complaint pursuant to section 2 — 619(a)(6) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2— 619(a)(6)). A release signed by Mikenas and dated September 26, 1989, was attached to the motion. The release stated that, in consideration of the payment of $24,000, Mikenas released Timothy Andrew, Binnie Andrew, and Prestige Casualty Company from liability for any and all actions arising out of the accident which occurred on October 6, 1987. The motion thus alleged that plaintiff’s cause of action, brought as subrogee, was released and barred by the prior settlement agreement.

Plaintiff filed a response to the motion, arguing that the amount of workers’ compensation paid to Mikenas far exceeded the $24,000 settlement. Plaintiff further argued that the release was invalid because, first, there was no consideration for the release and, second, because plaintiff did not negotiate or agree with the settlement as required by the Act.

On January 10, 1990, arguments were heard on the motion to dismiss. Plaintiff maintained that, based on the case of Villapiano v. Better Brands of Illinois, Inc. (1975), 26 Ill. App. 3d 512, the release should be set aside because the settlement was not approved by the entity liable for workers’ compensation. Defendants argued that Villapiano did not apply because neither defendant Andrew nor his insurance carrier had actual or constructive notice of the workers’ compensation claim, since Mikenas, according to defendants, was operating his own automobile at the time of the accident. Defendants also maintained that, unlike the plaintiff in Villapiano, plaintiff here was bringing a subrogation action rather than an action to set aside the release. Defendants further argued that the settlement was entered into in good faith and should therefore bar plaintiff’s action. Plaintiff responded by arguing that Mikenas was, in fact, a passenger in his employer’s truck at the time of the accident.

Following this argument, the trial judge stated that he did not have any option except to grant the motion to dismiss. A written order dismissing the cause was entered the same day. This appeal followed.

Plaintiff argues on appeal that the trial court erred in dismissing its complaint. It contends that the dismissal was in error because the Workers’ Compensation Act imposes a duty upon the trial court to protect the employer’s right to reimbursement for workers’ compensation benefits paid, and a release, signed by an injured employee who has accepted workers’ compensation benefits, does not bar the employer’s right to reimbursement.

Defendants have not filed an appellees’ brief in response. We will, however, consider the appeal under the standard set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

Section 5(b) of the Act deals with the situation “[wjhere the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b).) The portions of the section relevant to this appeal provide the following.

First, an employer has a right to reimbursement for any workers’ compensation benefits paid, or to be paid, from any compensation the employee receives from a third party, with or without suit. (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b).) An employer may claim a lien upon any award, judgment, or fund that the employee recovers from the third party. (Blagg v. Illinois F.W.D. Truck & Equipment Co. (1989), 186 Ill. App. 3d 955, 959, appeal allowed, (1989), 128 Ill. 2d 661.) Therefore, an employee is entitled to retain only that portion of a recovery from the third party which exceeds the benefits received under the Act from the employer. Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, 7.

Second, the employer has the right to intervene in any suit filed by the employee against the third party at any stage prior to the satisfaction of judgment (Jackson v. Polar-Mohr (1983), 115 Ill. App. 3d 571, 574), so that all orders of the court after hearing and judgment shall be made for the employer’s protection (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b)).

Third, no release or settlement of claim for damages between the employee and third-party tort-feasor is valid without the written consent of the employer; however, the employer’s consent is not required where the employer has been fully indemnified or is protected by court order. (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b); Freer v. Hysan Corp. (1985), 108 Ill. 2d 421, 426; Mounce v. Tri-State Motor Transit Co. (1986), 150 Ill. App. 3d 806, 810.) Thus, what is protected by the Act is the employer’s right to reimbursement of the amount of workers’ compensation paid, or to be paid, by him to the employee. Freer, 108 Ill. 2d at 426.

Finally, the employer has the right under the statute to bring a suit during the three months prior to the expiration of the statute of limitations if the employee has not filed a suit. (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b).) “This language creates in the employer a right akin to the common law right of subrogation.” Chicago Transit Authority v. Yellow Cab Co. (1982), 110 Ill. App. 3d 379, 381; see also Beiermann v. Edwards (1990), 193 Ill. App. 3d 968, 980-81.

It is clear that the statute provides numerous protections for the interests of an employer who has made workers’ compensation payments. “The statutory purpose of section 5(b) is clear. The employer’s right to reimbursement is to be protected by the court.” (Blagg, 186 Ill. App. 3d at 962; see also Langley v. H.K. Ferguson Co. (1989), 186 Ill. App. 3d 1036, 1042.) Plaintiff, as subrogee of the employer, is entitled to the protections of the statute.

In the case relied on by plaintiff, Villapiano v. Better Brands of Illinois, Inc. (1975), 26 Ill. App. 3d 512, the employee, while driving his employer’s truck, was involved in an accident with another truck driver. Within one month after the accident, the employee, in return for $1,500, executed a full release discharging the defendants from liability. His employer was not informed of the release. When the employer learned of the release, it filed suit to set the release aside. (Villapiano, 26 Ill. App. 3d at 513.) The complaint was dismissed by the trial court based on the release. Villapiano, 26 Ill. App. 3d at 514.

The appellate court determined that the employer’s suit should not have been dismissed. The court noted that notice of the employer’s claim was served six weeks after the accident and that the defendants had constructive notice of the employer’s interest prior to the execution of the release, because the employee was operating his employer’s vehicle at the time of the accident. The court indicated, however, that the outcome would not have been different even if constructive notice were lacking. Villapiano, 26 Ill. App. 3d at 516-17.

The Villapiano court concluded that the release did prohibit the employee from maintaining a suit against the defendants, but the employer’s rights, as well as the rights of the workmens’ compensation carrier, survived. (Villapiano, 26 Ill. App. 3d at 517.) Thus, “the right to an adjudication on issues of liability and damages passed to [the] employer and its insurance carrier, whose position changed from intervenors or lienors to that of transferees of the common-law action.” (Villapiano, 26 Ill. App. 3d at 517-18.) The employee, however, could claim no benefits if the action of the remaining plaintiffs were successful, and their recovery could not exceed the employer’s liability for compensation payments under the Act. Villapiano, 26 Ill. App. 3d at 518.

Here, also, it appears that plaintiff’s cause of action must survive even though Mikenas entered into a settlement agreement and signed a release. The difficulty is in the unique posture of this case on appeal. No suit was filed by Mikenas, so plaintiff did not have the opportunity to intervene in an action prior to the settlement. Plaintiff, therefore, filed a subrogation action within three months of the expiration of the statute of limitations, as allowed by the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b)). The action was filed three days after the release was signed. It is not clear from the record whether plaintiff was aware of the settlement when the complaint was filed. In addition, no affidavits were filed with the motion to dismiss or in response to the motion, so significant facts alleged by the parties are not of record. Plaintiff has consistently argued that it did not agree to the settlement, but there is no allegation to this effect in the complaint, and there is nothing in the record which establishes this fact. Plaintiff also contends in its brief that defendants had notice of its claim for reimbursement well before the settlement was made. There is likewise nothing in the record to substantiate this contention. Also, plaintiff and defendants engaged in a dispute before the trial court regarding whether defendants had constructive notice of the claim. Defendants maintained that Mikenas was driving his own car, and plaintiff asserted that Mikenas was, in fact, a passenger in his employer’s truck. No documents or affidavits were submitted to establish the vehicle actually involved in the accident.

Nevertheless, we find the Villapiano case persuasive and the language of the Act dispositive of this appeal. The plain, unambiguous statutory language provides that a release or settlement entered into without the employer’s consent or without an order of the court protecting the employer is not valid. (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b).) A court must enforce a statute according to its terms when the statute is clear and unambiguous. Page v. Hibbard (1987), 119 Ill. 2d 41, 46; see also Kochan v. Arcade Electric Co. (1987), 160 Ill. App. 3d 1, 3-4.

The release attached to the motion to dismiss contains only Mikenas’ signature and, on its face, has no indication that plaintiff or Lewis consented to the agreement. Defendants have the burden of proving the affirmative defense relied upon in a section 2 — 619 motion to dismiss. (Town of Libertyville v. Connors (1989), 185 Ill. App. 3d 317, 323; Meyer v. Murray (1979), 70 Ill. App. 3d 106, 114.) Defendants did not file any documents or affidavits to establish that the employer or its compensation carrier consented to the settlement agreement. Under the terms of the statute, the release is therefore not valid and cannot bar plaintiff’s action.

Further, the trial court’s judgment cannot be upheld on any basis argued by defendants below. Under Blagg, the fact that defendants asserted that it was a good-faith settlement is not dispositive; a court must consider whether the employer’s lien is protected. (Blagg, 186 Ill. App. 3d at 963.) Also, while we express no opinion as to whether notice of the employer’s reimbursement interest is necessary under these circumstances, plaintiff did allege in its complaint that defendant Andrew struck a vehicle owned by Lewis. Under the reasoning of Villapiano, this would be enough to establish constructive notice of the employer’s interest. While defendants disputed this fact, for purposes of a section 2 — 619 motion, all well-pleaded facts are taken as true. (Kirby v. Jarrett (1989), 190 Ill. App. 3d 8, 13; Sheridan v. Comp-U-Motive, Inc. (1988), 168 Ill. App. 3d 451, 454.) In addition, the fact that plaintiff here brought a subrogation action rather than an action to set aside the release is not significant. In fact, the court in Villapiano treated the complaint as a subrogation claim and did not, apparently, set aside the release. The court held that, while the release did not bar an action by the employer, it was effective to prohibit the employee from maintaining a suit against the defendants. Villapiano, 26 Ill. App. 3d at 517-18.

Based on the posture of this case before us, -we hold only that the release signed by Mikenas was not effective to bar plaintiff’s cause of action, as subrogee of the employer, because there is no indication that plaintiff consented to the release or that plaintiff was indemnified, or protected by a court order. Plaintiff’s complaint, therefore, should not have been dismissed.

For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

UNVERZAGT, P.J., and NICKELS, J., concur.