author: JUSTICE DUNN

text:
    HARRY W. KUHN, INC., Plaintiff-Appellee, v. THE COUNTY OF DU PAGE et al., Defendants-Appellants.
    Second District
    No. 2 — 89—1038
    Opinion filed October 5, 1990.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, George J. Sotos, and Carole R. Doris, Assistant State’s Attorneys, of counsel), for appellants.

      Aldo E. Botti and Howard R. Wertz, both of Botti, Marinaccio, DeSalvo & Tameling, Ltd., of Oak Brook, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Defendants, the County of Du Page, Jack T. Knuepfer, Kenneth Lahner and Steve Burger, appeal from an order entered September 7, 1989, in which plaintiff, Harry W. Kuhn, Inc., was granted a writ of mandamus requiring defendants to issue a permit to plaintiff for the use of a temporary cement batching plant at 28 W. 651 North Avenue in West Chicago for the duration of plaintiff’s construction contract at North Avenue and Prince Crossing Road in unincorporated Du Page County. The term “County” shall be used to refer to all defendants. The County raises two issues on appeal: (1) whether plaintiff was collaterally estopped from seeking a temporary use permit, where a claimed exemption under State and County zoning provisions had been purportedly litigated in a prior cause of action between the parties and had been adjudicated in a manner adverse to plaintiff for purposes of claiming an additional use exemption; and (2) whether it was error for the trial court to grant the writ of mandamus for a temporary use because plaintiff had used the land in question for a similar purpose on a prior occasion.

In addition to refuting the County’s arguments, plaintiff argues that we should dismiss this appeal for want of jurisdiction as to defendants Knuepfer, Lahner, and Burger because they were not named specifically in the body of the notice of appeal and that, in any case, we should dismiss this appeal as moot. We find that we have jurisdiction over all the parties, .but we dismiss the appeal on the ground of mootness, and we remand the cause to the circuit court with directions to vacate the order of September 7, 1989, granting mandamus relief and to dismiss plaintiff’s three-count complaint.

On July 11, 1989, plaintiff applied to the County for an exemption from the County’s zoning regulations for plaintiff’s proposed temporary use of property located in an 1-1 zoning district so that plaintiff could operate a ready-mix cement batching plant for a base concrete and signalization construction project pursuant to a contract awarded to plaintiff by the Department of Transportation. The property which plaintiff proposed to use for the cement batching is located at 28 W. 651 North Avenue, West Chicago, in Du Page County, Illinois. The property is located less than one-half mile from the site of the construction project at the intersections of North Avenue and Prince Crossing Road in West Chicago. The Du Page County building department notified plaintiff by letter dated August 14, 1989, that it would not issue a temporary permit to plaintiff for the operation of a concrete batching plant at the North Avenue property because the proposed use was not exempted even on a temporary basis.

On August 25, 1989, plaintiff filed a three-count complaint against the County and the above-named officers and served defendants with a mandamus summons. The complaint alleged, inter alia, that the County had a duty to issue a permit for the temporary use because plaintiff’s use was exempt pursuant to State statute (Ill. Rev. Stat. 1987, ch. 34, par. 3151) and pursuant to section 37 — 6.5 of the Du Page County Zoning Ordinance having similar language (Du Page County, Ill., Zoning Ordinance §37 — 6.5 (19_)). Count I of plaintiff’s complaint sought mandamus relief while counts II and III sought a declaratory judgment and injunctive relief. The latter two counts were ultimately withdrawn by plaintiff and are not at issue here.

The County filed motions to dismiss plaintiff’s complaint for mandamus pursuant to sections 2 — 619(a)(9) and 2 — 619(a)(4) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 619(a)(9), (a)(4)). The section 2 — 619(a)(9) motion alleged that plaintiff was barred by affirmative matter from claiming it was entitled to a statutory exemption from the County’s zoning regulations for a temporary contractor’s facility because the subject site had already been utilized for temporary cement batching for another road project at Highland Avenue and Butterfield Road, thus negating the “temporary” requirement of the statutory provision (the zoning statute) (Ill. Rev. Stat. 1987, ch. 34, par. 3151); the County maintained that this prior use had been clearly established in prior litigation between the same parties (Kuhn I) in the circuit court of Du Page County. The County further argued that this statutory zoning exemption was interpreted in County of Will v. Arcóle Midwest Corp. (1977), 45 Ill. App. 3d 656, so as not to include a series of successive maintenance or construction contracts.

The County’s section 2 — 619(a)(4) motion to dismiss alleged that plaintiff was collaterally estopped from claiming an exemption for the use of a temporary concrete batching plant because there was a prior judgment on an identical claim between the same parties. The County attached as exhibits to its motion certified copies of the court’s orders in the previously consolidated cases wherein the circuit court determined plaintiff’s right to the temporary use of the contractor’s facility at the North Avenue site and ordered plaintiff to cease operations at that site upon completion of the construction contract involving Highland Avenue and Butterfield Road.

On September 7, 1989, there was a hearing on the County’s motions and on plaintiff’s petition for mandamus. The County argued that its section 2 — 619(a)(4) motion pleaded, in effect, the doctrine of collateral estoppel because in prior litigation the issues here had been adjudicated between these same parties. In support of this position, counsel for the County tendered an affidavit supported by documents including the pertinent pleadings, hearing transcripts and orders entered in the prior adjudication between plaintiff and the County. The County presented documents which allegedly showed that, in the consolidated cases designated here as Kuhn I, the subject property, the parties, the use at issue and the relevant County zoning regulations were the same. The County further argued that, in Kuhn I, the trial court determined plaintiff’s entitlement to an exemption from County zoning regulations for the use of a temporary contractor’s facility on the subject property.

Kuhn I arose out of a dispute between the County and plaintiff over plaintiff’s request, in May 1987, for a permit to erect and operate a portable concrete batching plant on the North Avenue property for a road project at Highland Avenue and Butterfield Road in Du Page County. The County building department had initially issued a temporary building permit for the cement batching plant, but plaintiff had commenced operations of the facility without a use and occupancy permit. The County attempted to revoke the permit as improvidently granted. In its complaint, the County sought to revoke or terminate the prior permit on various grounds and to enjoin the plant’s operation.

Plaintiff raised an affirmative defense, alleging a theory of equitable estoppel because, in June 1987, in reliance on the County’s issuance of the permit, plaintiff had erected, at significant cost, a portable concrete batching plant on the site in order to complete its work at the Highland-Butterfield site. Plaintiff also claimed that the temporary use of the site was exempt under the section 1 statutory zoning exemption (Ill. Rev. Stat. 1987, ch. 34, par. 3151) and similar County zoning provisions. Section 1 states in pertinent part:

“[T]he board of supervisors or board of county commissioners *** of each county, shall have the power to regulate and restrict the location and use of buildings, structures and land for trade, industry, residence and other uses which may be specified by such board ***.
The powers by this Act given shall not be exercised so as to *** prohibit the temporary use of land for the installation, maintenance and operation of facilities used by contractors in the ordinary course of construction activities, except that such facilities may be required to be located not less than 1,000 feet from any building used for residential purposes, and except that the period of such temporary use shall not exceed the duration of the construction contract.” Ill. Rev. Stat. 1987, ch. 34, par. 3151.

On the morning of April 20, 1988, the court in Kuhn I heard the arguments of counsel on the issue whether plaintiff was entitled to statutory exemptions which would preclude the County from enforcing its zoning ordinance. The County argued that the exemption, in derogation of the County’s police power to zone, should be narrowly construed and that the exemption was specific in its reference to a construction contract. If exempt status attached to plaintiff’s construction activities, it attached to one of several other stipulated contracts in existence on June 27, 1987, and, in fact, completed prior to the Highland-Butterfield contract. In construing the holding of County of Will v. Arcole Midwest Corp. (1977), 45 Ill. App. 3d 656, it was the County’s position that, for purposes of the section 1 exemption from zoning regulations for contractors’ facilities, “there is only one contract per customer.” In other words, a temporary use included only the duration of one contract. This limitation was, the County argued, to protect the citizens of an unincorporated area of the County from the impact of a contractor’s facility.

Plaintiff argued that the legislature had expressed an intent to promote efficiency in the construction trade for the duration of a construction project by its enactment of section 1 and that plaintiff had relied on the permit issued by the County for the North Avenue plant when plaintiff bid for the Highland-Butterfield project. The trial court found that plaintiff’s use of the subject property in Kuhn I was not authorized by the Du Page County zoning ordinance nor was such use exempted pursuant to section 1 of the zoning statute and section 37— 6.5 of the County’s zoning ordinance.

In the afternoon of April 20, 1988, the trial court heard testimony and the arguments of counsel on the matter of plaintiff’s motion to dissolve the preliminary injunction prohibiting the cement batching on the subject property and the County’s motion seeking continuation of an injunction against such use. After hearing the testimony of two County employees regarding the circumstances surrounding the issuance of the temporary permit to plaintiff for the North Avenue cement plant and testimony by witnesses for plaintiff regarding the extent of its reliance on the permit for the Highland-Butterfield contract, the trial court ruled that the injunction issued previously enjoining plaintiff’s North Avenue operation should remain in full force and effect except for the concrete needed for the work at the Highland-Butterfield project. The subsequent order dated May 6, 1988, permanently enjoined plaintiff from operating the portable concrete batching plant at the North Avenue location except to the extent needed and required to fulfill the contractor’s obligations for work on the Highland-Butterfield project; the contractor was not to utilize the concrete from this plant for any other jobs whatsoever, and, on completion of the allowed work, the plant was to cease operations. No appeal was taken from this order.

It has been the County’s position in the case now before us (Kuhn II) that the orders in Kuhn I clearly determined that plaintiff is not now entitled to an exempt status for zoning purposes.

Alternatively, the County has argued be.low in Kuhn II that there was affirmative matter which defeated plaintiff’s claim to a temporary use of the contractor’s facilities on the subject property. The County contended that the record in the prior adjudication (Kuhn I) established that the North Avenue property had been used previously as a temporary contractor’s facility to service the Highland-Butter-field contract and other construction contracts now completed. Thus, the County concluded the “temporary” requirement of the claimed statutory exemption from zoning regulation is now negated. The County’s view was that the temporary exemption was “used up” so to speak. The County argued that “recurring temporariness” was not intended by the “temporary use” language of section 1.

It was plaintiff’s position that collateral estoppel did not apply to the order of April 8, 1988, in that the issues in Kuhn I were not identical to the issues here. In Kuhn I, the cement plant’s operation exceeded the duration of one construction contract, and, in fact, several contracts were serviced, and Kuhn had sold concrete to other contractors. In Kuhn II, plaintiff was proposing to use the site for a specific contract, and this project was very close to that site; plaintiff also pointed out that there was no assertion before the trial court that the plaintiff would continue the operation of the cement plant once this project at Prince Crossing Road was completed. Plaintiff also disputed the County’s interpretation of section 1 of the zoning statute as allowing only a one-time exemption because such an interpretation was contrary to the statutory purposes of promoting convenience and efficiency.

The court denied the County’s motion to dismiss, indicating that its prior decision in Kuhn I had not been predicated upon section 1 but was on the ground of equitable estoppel. The trial court found that, in the present case, plaintiff’s proposed use of the subject property for a concrete mixing plant for a job on its doorstep was exempt from County zoning regulations based on the present factual circumstances and the interest of the public. The trial court considered its decision to be consistent with the provisions of section 1 and the decision in Arcóle (45 Ill. App. 3d 656). The court then granted plaintiff’s request for a writ of mandamus.

We first address plaintiff’s contention that this court does not have jurisdiction over all the defendants because of the failure of the notice of appeal to list the names of all the defendants in the body of the notice of appeal. The caption of the notice of appeal lists all of the defendants, and the body of the notice states that the appeal is being taken by the “Defendants-Appellants, COUNTY OF DU PAGE, et al.” Plaintiff relies on cases construing the Federal rules of appellate procedure regarding the naming of appellants in the notice of appeal. We find the cases cited by plaintiff inapplicable.

Supreme Court Rule 303(c) specifies that the notice shall contain the signature and address of each appellant or his attorney. (107 Ill. 2d R. 303(c).) The notice of appeal was signed by an assistant State’s Attorney on behalf of the “Defendants-Appellants.” Other than the County itself, the other named defendants in the caption of the notice of appeal are officials or agents of the County through whom the County acts and who have been the same named defendants throughout the proceedings of the case now presently before us. There are no unknown defendants. The order appealed from binds all of the defendants without distinction, and the caption of the order names the “County of Du Page, et al.” There is no question raised in the record that the State’s Attorney has represented all of the defendants throughout the proceedings.

A notice of appeal is to be construed liberally; where an existing deficiency is one of form rather than substance, appellate jurisdiction will still be conferred if the notice fairly and accurately advises the successful party of the nature of the appeal. (In re Marriage of Betts (1987), 159 Ill. App. 3d 327, 330.) Where the appellee is not prejudiced thereby, the absence of strict compliance with form will not be fatal, and the appellate court will not be deprived of jurisdiction. Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 434.

The record leaves little doubt of who the parties are, both here and below, and who is bound by the order appealed from. We recognize that the imprecise designation “et al.” should not be used without qualification as a method of enumerating appellants in the statutory notice of appeal (In re Estate of Bonjean (1980), 90 Ill. App. 3d 582, 587) and, in a particular case, such a procedure could render a notice fatally defective. However, in the particular circumstances here, we find the notice sufficient to confer appellate jurisdiction. We fail to see how plaintiff has been prejudiced, and we find that we have jurisdiction over all of the parties.

Plaintiff next argues that this appeal should be dismissed because, since the filing of the notice of appeal, events have occurred which preclude this court from granting effective relief to either party inasmuch as plaintiff has completed the concrete related work on the Prince Crossing Road project. Thus, according to plaintiff, any decision rendered by this court would constitute an impermissible advisory opinion. (See George W. Kennedy Construction Co. v. City of Chicago (1986), 112 Ill. 2d 70, 76.) We agree. A case is moot when it no longer involves an actual controversy (La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 378), and an appellate court will not review a case merely to resolve moot or academic questions, to establish precedent, or to render a judgment merely to guide potential future litigation (In re Johnson (1977), 53 Ill. App. 3d 921, 924).

Plaintiff has appended to its brief a copy of a letter dated January 22, 1990, from the chairman of the county development committee of the Du Page County Board and the affidavit of plaintiff indicating that the construction at Prince Crossing Road at North Avenue is completed. We take judicial notice of this extrinsic evidence that the project is completed, and we conclude that this appeal is moot. See May Department Stores Co. v. Teamsters Union Local No. 743 (1976), 64 Ill. 2d 153, 159; Gold v. Kamin (1988), 170 Ill. App. 3d 312, 315; Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, 527.

Defendant argues that we should review this appeal as an exception to the mootness doctrine because the question presented is of great or substantial public interest and because the challenged action involves an event of short duration, is capable of repetition, and yet evades review. (See In re A Minor (1989), 127 Ill. 2d 247, 257-58.) However, the public-interest exception to the mootness doctrine is applied very narrowly and must be very clear to prevent dismissal of an appeal. {In re Johnson, 53 Ill. App. 3d at 924.) In order to review a case under the public-interest exception, a court must consider the public nature of the question, the need for an authoritative determination for future guidance of public officers, and the likelihood of future recurrence of the question; a clear showing of all three factors is needed to bring the case within the exception. Kohan, 102 Ill. App. 3d at 527.

First, the issue is not of such great public importance that it urgently requires review by this court; it involves merely the question whether, in issuing construction permits, public officials should allow temporary uses of land for construction purposes, such use being dependent on the particular facts of each case. Any determination that we would make in the present case would not necessarily be of great import to future cases which will depend on their particular facts. (See Johnson v. Board of Education (1967), 79 Ill. App. 2d 22, 25.) We also note that the statutory provision in question is clearly worded and was adequately construed some time ago in 1977 in County of Will v. Arcole Midwest Corp., 45 Ill. App. 3d 656. We do not find this type of case to be of such urgent and compelling interest to require a new and authoritative determination. (See People ex rel. Cairo Turf Club, Inc. v. Taylor (1954), 2 Ill. 2d 160 (construction of liquor control statute moot where the licensing period had expired); see also, e.g., George W. Kennedy Construction Co., 112 Ill. 2d 70 (appeal by frustrated bidder on public construction project properly dismissed as moot because project was completed and equitable relief could no longer be given); Bankers Life & Casualty Co. v. City of Chicago (1961), 21 Ill. 2d 172 (validity of issuance of building permit in relation to prior court order and city zoning ordinance moot where building was completed; justiciable controversy no longer existed); La Salle National Bank, 3 Ill. 2d 375 (validity of ordinance requirements for the issuance of license for nursing home in mandamus action moot issue where license had been issued).) Second, by virtue of the decision in Arcóle, which in our estimation provides sufficient guidance to future litigants, we also find that this is not the type of case involving events of short duration such that this issue has evaded review. We do not believe that there is a reasonable expectation that the same complaining party will be subject to the same or repetitive actions in view of the limited remedy granted by the circuit court.

Finally, in order to avoid any uncertainty regarding the possible res judicata effect of the trial court’s final order (see Gold v. Kamin, 170 Ill. App. 3d at 316; U-Haul Co. of Chicago Metroplex v. Town of Cicero (1980), 87 Ill. App. 3d 915, 919-20), we dismiss the appeal and remand the cause to the circuit court with directions to vacate the order of September 7, 1989, granting mandamus and to dismiss plaintiff’s three-count complaint in the present cause. Unless the circuit court has further reconsidered and modified its prior orders of May 6, 1988 (nunc pro tunc April 20, 1988), our determination leaves standing those orders barring Harry W. Kuhn, Inc., its agents and employees and other parties specified therein from any further use of the subject property for a concrete batching plant or for any other uses stated in those orders.

As the appeal is moot, we need not consider the other arguments of the parties.

Appeal dismissed; remanded with directions.

GEIGER and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    ELIZABETH M. SAFANDA, Plaintiff-Appellant, v. ZONING BOARD OF APPEALS OF THE CITY OF GENEVA et al., Defendants-Appellees.
    Second District
    Nos. 2 — 89—1256, 2 — 90—0200 cons.
    Opinion filed October 2, 1990.

      Safanda & Brannen, of St. Charles (Carl F. Safanda, of counsel), for appellant.
    Radovich & Radovich and Stephen M. Cooper, of Law Offices of Cooper, Storm & Petesch, both of Geneva, and Lloyd E. Dyer, Jr., of Wheaton (Charles A. Radovich, of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff appeals from the trial court’s dismissal of two counts of her complaint in administrative review and the dismissal of certain parties defendant. We affirm in part, reverse in part, and remand.

Plaintiff, Elizabeth Safanda (plaintiff), sought a rear-yard variance on property owned in defendant City of Geneva (City) to enable her to build a single-family residence. Following a hearing before defendant zoning board of appeals of the City of Geneva (Board) on June 8, 1988, the application was denied.

Plaintiff filed her complaint for administrative review on August 4. On September 27, the court entered an agreed order remanding the cause to the Board for additional hearings and the issuance of a decision containing required findings of fact. The order also provided that the prior Board decision would be superseded by the decision on remand, that the records of both hearings would constitute the record on review, and that plaintiff’s complaint was to be stayed pending the issuance of the decision on remand.

The Board met on October 5, 1988, to discuss the case. This meeting was not open to the public, and plaintiff received no notice of it. An additional public hearing was held by the Board on October 27, after which the Board denied the application in a decision dated December 29.

On December 22, plaintiff filed a motion in the circuit court seeking further hearings before the Board. The court then remanded the cause to the Board and ordered an additional hearing at which Charles Lencioni, building commissioner of the City of Geneva and secretary of the Board, was ordered to testify and produce documents pursuant to an ordered subpoena. Such meeting was held on March 1, 1989. The Board then denied the application in a decision dated March 8 and mailed on March 30. Plaintiff filed her first amended complaint in the trial court on April 17. Defendants Board, City, and the individual members of the Board filed a motion to strike and dismiss plaintiffs first amended complaint. On November 2, plaintiff was granted leave to amend her first amended complaint by adding count V. The court then dismissed counts IV and VI and dismissed as parties the City and the individual members of the Board. Plaintiff appeals these dismissals.

Defendants then filed a motion to dismiss count V of the first amended complaint. This motion was granted on February 8, 1990. Plaintiff also appeals from this dismissal. We have consolidated these dismissals on appeal.

Plaintiff first contends that count VI of her first amended complaint should not have been dismissed as a matter of law. This count alleged that the Board’s October 5, 1988, meeting was held in violation of the Open Meetings Act (Act) (Ill. Rev. Stat. 1989, ch. 102, par. 41 et seq.). The trial court found that this count was not timely filed and therefore dismissed it. We disagree.

Section 3(a) of the Open Meetings Act provides:

“Where the provisions of this Act are not complied with, or where there is probable cause to believe that the provisions of this Act will not be complied with, any person, including the State’s Attorney of the county in which such noncompliance may occur, may bring a civil action in the circuit court for the judicial circuit in which the alleged noncompliance has occurred or is about to occur, or in which the affected public body has its principal office, prior to or within 45 days after the meeting alleged to be in violation of this Act or within 45 days of the discovery of a violation by the State’s Attorney.” (111. Rev. Stat. 1989, ch. 102, par. 43(a).)

The statute allows a person to file a complaint within three time periods: (1) before the violative meeting is held; (2) within 45 days of the violation; or (3) within 45 days of discovery of the violation by the State’s Attorney. In the case before us, plaintiff filed her complaint 194 days after the Board’s allegedly violative meeting, clearly beyond the limits of the first two periods. However, the record contains no evidence that the State’s Attorney ever discovered the occurrence of the meeting. Therefore, the 45-day period after such discovery had not run, and plaintiff’s complaint was filed within the statutory time limit. The trial court measured the 45-day limit from the time the court found plaintiff to have notice of the meeting. However, the statute does not measure the opportunity to file from the complainant’s discovery. Even if the court were correct in measuring the 45 days from plaintiff’s discovery, the court still erred in determining that plaintiff filed outside the limited period. The court found that plaintiff discovered the meeting on March 1, 1989, and therefore should have filed her complaint on or before April 15. Plaintiff filed on April 17. However, April 15 fell on a Saturday; plaintiff would have been allowed to file on the next day that the court was open, namely April 17. We conclude that plaintiff timely filed count VI of the first amended complaint. Therefore, the trial court erred in dismissing that count, and we remand this cause to the trial court with instructions to reinstate that count.

Plaintiff next contends that the court erred in dismissing the City of Geneva as a defendant in this suit. The trial court found that the City was not a proper party to this action because it “was not part of the decision rendered by the Zoning Board of Appeals” and because plaintiff was challenging the Board’s application of the City’s zoning code, not the code itself.

The City did not participate in the hearing before the Board. Plaintiff points out that Charles Lencioni, the City building commissioner, testified before the Board and that City attorney Charles Radovich presented evidence and otherwise participated in the public hearing before the Board. However, Lencioni was subpoenaed by plaintiff to testify regarding Lencioni’s actions as secretary of the zoning board of appeals, not as building commissioner, and Radovich was acting in his capacity as counsel for the Board. Neither man represented the City or acted on its behalf in these hearings. We do not conclude that the presence of these men at the hearings constituted participation by the City.

Plaintiff maintains that the City is a proper party because counts III and IV of the first amended complaint seek to have the Geneva zoning ordinance declared void and unconstitutional as applied to her property. According to plaintiff, the City has an interest in the outcome of these counts and would be affected by a decision entered in its absence; if the City is not a party, it would be bound by the decision with no avenue for appeal.

Parties to an action are divided into indispensable or necessary parties and proper or dispensable parties. (Lain v. John Hancock Mutual Life Insurance Co. (1979), 79 Ill. App. 3d 264, 268.) “ ‘Proper’ parties may but need not be joined.” (Lain, 79 111. App. 3d at 268 n.4.) A necessary party is one who “has an interest in the subject matter of the suit which may be materially affected by a judgment entered in the person’s absence.” (People ex rel. Sheppard v. Money (1988), 124 Ill. 2d 265, 281.) Such a party must be joined unless joinder would destroy the jurisdiction of the court or the party is not amenable to the court’s jurisdiction. Lain, 79 Ill. App. 3d at 268 n.4.

Plaintiff, while calling the City a “proper” party, applies the definition of “necessary” party to the City. Plaintiff argues that the City will be bound by the trial court’s decision with no avenue for appeal unless it is a party. While this may be true, it is true for other individuals or groups who may have opposed the application for variance yet never involved themselves in the process. The City, for whatever reason, neither opposed nor advocated the granting of the variance. By failing to involve itself in the hearing, the City voluntarily gave up its right to challenge the Board’s decision. The City cannot be forced to regain that right by plaintiff. The City was not a party of record in the prior proceedings and is not a necessary party on review.

In addition, plaintiff agrees that she is only challenging the constitutionality of the zoning code as applied to her property, not the constitutionality of the code on its face. The Board, not the City, is responsible for the application of the code to individual parcels of property. The City made no administrative decision to be reviewed. The trial court correctly dismissed the City as a defendant in this suit.

Plaintiff next contends that the individual members of the Board were proper parties to the suit and should not have been dismissed. Count VI of the first amended complaint sought relief against these individuals for the alleged violation of the Open Meetings Act. Count III also sought relief from the Board members, among others, for alleged violations of plaintiff’s constitutional rights. Before the court dismissed count VI as untimely filed, it found that the individual Board members were proper parties to the open meetings count. Since we have concluded that count VI was timely filed and should be reinstated on remand, the individual Board members will remain parties under that count. Therefore, we will only address the alleged error of dismissing the individual members of the Board from count III.

Plaintiff fails to cite any case explicitly concluding that individual Board members are proper parties to a suit charging deprivation of constitutional rights by an administrative body. However, plaintiff argues that the reasoning employed in People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, is applicable to this case. Barger involved a violation of the Open Meetings Act by several officials of the City of Wheaton. The members of the Wheaton city council involved in the illegal meeting were found to be necessary parties to the resulting suit. (Barger, 30 Ill. App. 3d at 539.) We find Barger to be clearly distinguishable from the case before us. Section 4 of the Open Meetings Act provides that “[a]ny person violating any of the provisions of this Act shall be guilty of a Class C misdemeanor.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 102, par. 44.) Thus, the individual council members in Barger were properly defendants because the statute under which the suit was brought provided that individuals were to be charged under the Act. In the case before us, no statute explicitly provides for the joinder of individuals in such a case. We will not extend the provisions of a statute to situations and actions beyond the purview of that enactment. Barger provides no basis for finding the members of the Board to be proper defendants.

Plaintiff also cites Weaver v. Zoning Board of Appeals (1970), 130 Ill. App. 2d 1052, because the individual members of that Board were also made parties defendant in that case. However, the propriety of naming the members as defendants was not at issue in that case. The fact that the members were named does not, by itself, prove that the action was proper or that the members could not have gotten themselves dismissed from the cause had they so attempted. Plaintiff has provided no cognizable argument why the dismissal of the individual Board members was error. Accordingly, we affirm the dismissal of these parties.

Plaintiff next contends that the court erred in dismissing count IV of her first amended complaint. This count alleged that the Board’s application of the Geneva Zoning Code violated the due process and equal protection clauses of the Illinois Constitution (Ill. Const. 1970, art. I, §2). The court dismissed this count for failure to state a cause of action.

A motion to dismiss admits all well-pleaded facts, and all reasonable inferences which may be drawn from those facts are taken as true for purposes of the motion. (Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 1097.) A complaint should not be dismissed for failure to state a cause of action unless the pleadings disclose that no set of facts could be proved which would entitle plaintiff to relief. (Inter- way, 85 Ill. App. 3d at 1097.) On appeal from such a dismissal, the reviewing court should view the facts alleged in the complaint in the light most favorable to the plaintiff. Interway, 85 Ill. App. 3d at 1097.

Plaintiff first argues that her complaint stated a cause of action for violation of her right to due process. Section 31.2604 of the Geneva Code grants to the Board the power to

“[a]uthorize, upon its own motion or upon formal petition signed by one or more property owners, whenever the property owner can show that a strict application of the terms of this ordinance [appendix] relating to the use, construction or alteration of buildings or structures or the zoned use of land will impose upon him unusual and particular difficulties or particular hardship, such variations of the strict application of the terms of this ordinance [appendix] as are in harmony with its general purposes and intent, but only when the board is satisfied that a granting of such variation will not merely serve as a convenience to the applicant, but will alleviate some demonstrable hardship or difficulty so great as to warrant a variation from the requirements established by this ordinance [appendix] and that at the same time the surrounding property will be properly protected. The same procedure shall be followed concerning public hearing, notices and maps as in the case of amendments to this ordinance [appendix].
In consideration of all appeals and all proposed variations to the ordinance [appendix] the board shall, before making any variation from the ordinance [appendix] in specific case, first determine that the proposed variation will not impair an adequate supply of light and air to adjacent property, or unreasonably increase the congestion in public streets, or increase the damage of fire or endanger the public safety, or unreasonably diminish or impair established property values within the surrounding area ***.” (Geneva, 111., Municipal Code ch._, par. 31.2604 (19_).)

Plaintiff maintains that she presented adequate evidence to the Board to show that denial of the variance would cause her undue hardship and that the granting of the variance would not adversely affect the surrounding neighborhood. The complaint alleges that plaintiff presented to the Board expert testimony that the R-2 zone requirements, if not modified by the requested variance, create hardships in the construction of a single-family residence on plaintiff’s property, including problems with room size and other quality of life problems. The complaint also alleged expert testimony that the granting of the variance would not impair the supply of light to adjacent property and would not negatively affect traffic congestion, the danger of fire, or the public health, safety and general welfare.

Application of a zoning ordinance to a parcel of land is violative of an individual’s right to due process' if that application is arbitrary, unreasonable, or capricious and it bears no substantial relationship to public welfare. (Brown v. Board of Zoning Appeals (1959), 21 Ill. App. 2d 273, 277.) Plaintiff has contended that the Board acted arbitrarily and without concern for public welfare in denying her application for a variance because the expert testimony presented to the Board indicated that the variance should have been allowed under section 31.2604 of the Geneva Code. Viewing these allegations in the light most favorable to plaintiff, we conclude that the complaint did state a cause of action alleging due process violation. We may certainly infer, from the facts alleged, that the Board acted arbitrarily or capriciously in denying the variance in the face of such testimony. If these facts were proved, plaintiff may be entitled to relief. Therefore, the court erred in dismissing count IV of plaintiff’s first amended complaint for failure to state a cause of action under due process.

Plaintiff also contends that she stated a cause of action sounding in equal protection. The threshold question in an equal protection case is whether similarly situated people are being treated dis-similarly. (People v. Burton (1981), 100 Ill. App. 3d 1021, 1023.) The State may treat different classes of persons differently, and, in the absence of a fundamental right or suspect classification, the State may even differentiate between similarly situated persons if there is a rational basis for doing so. (Jenkins v. Wu (1984), 102 Ill. 2d 468, 477.) This analysis is used in this State in assessing both Federal and State equal protection challenges. Jenkins, 102 Ill. 2d at 477.

Plaintiff alleges that her property was originally platted in 1837 as 150 feet deep and 60 feet wide with frontage on Fulton Street. However, under the terms of the current Geneva Zoning Code, the property is now configured as 60 feet deep and 150 feet wide with frontage on 7th Street. Plaintiff contends that her property is the only property from the original 1837 plat that is configured in this manner and that the configuration denies her full use of her property. Plaintiff also alleges that her property is subject to section 31.304 of the Geneva Code, which provides in part:

“The lot area and width regulations established in the residence districts shall not prohibit the erection or alteration of a dwelling and accessory buildings designed for single-family use on any residential lot shown as such on a recorded plat in the recorder’s office of Kane County, dated prior to January 7, 1957; provided that in no instance shall a building be erected on a lot less than fifty (50) feet wide in any residence district.” (Geneva, Ill., Municipal Code, ch__, par. 31.304 (19_).)

Plaintiff alleges that the Board’s action denied her full use of her property as mandated by the Code even though “all other lots platted in 1837 could avail themselves of this provision.” Nowhere, however, does plaintiff allege a specific instance when another property owner was treated differently. Alleging that other property owners “could avail themselves” of the Code provision does not allege dissimilar treatment. Such a statement merely alleges that others could seek the benefit of the provision, as did plaintiff. However, the allegation that the configuration of plaintiff’s property was changed does raise an equal protection cause of action. Taking plaintiff’s allegations as true, plaintiff’s property was the only parcel from the 1837 plat, among several parcels having the same dimensions, to have its dimensions reversed. It is this reversal which forced plaintiff to seek the variance denied by the Board. Under these alleged facts, plaintiff has been treated differently than other owners of properties platted in 1837. Therefore, plaintiff has stated a cause of action, and count IV of her first amended complaint should not have been dismissed.

In the consolidated case, plaintiff contends that the court improperly dismissed count V of her first amended complaint. This count alleged that the Board violated both the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 1 — 1—1 et seq.) and the Geneva Code when it held its meeting on October 5, 1988. Plaintiff also alleged that the Board’s meeting denied her rights to due process and equal protection in violation of the Illinois Constitution. (See Ill. Const. 1970, art. I, §2.) The trial court found that this count fell within the provisions of the Open Meetings Act (Ill. Rev. Stat. 1989, ch. 102, par. 41 et seq.) and dismissed the count for the same reasons it dismissed count VI.

We conclude that the court erred in dismissing count V of plaintiff’s first amended complaint. Count VI sought relief under the Open Meetings Act. Count V sought a reversal of the Board’s decision and the granting of the variance based on violations of the Illinois Constitution, the Municipal Code and the Geneva Code. Nowhere in this count did plaintiff allege violation of the Open Meetings Act. Clearly, the reasoning, employed by the court to dismiss count VI, which in any event we found to be in error, is irrelevant to count V. We must therefore reverse the court’s order dismissing count V of plaintiff’s first amended complaint.

For the above reasons, we affirm the dismissal of the individual Board members under count III and affirm the dismissal of the City as a party to this suit. We reverse the circuit court’s dismissal of counts IV, V, and VI, and remand this cause to the circuit court for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

UNVERZAGT, P.J., and INGLIS, J., concur.


author: JUSTICE RARICK

text:
    RUSSELL SWADER et al., Plaintiffs-Appellees and Cross-Appellants, v. GOLDEN RULE INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee (Michael Pokojski et at., Defendants-Appellees).
    Fifth District
    No. 5 — 88—0508
    Opinion filed August 7, 1990.
    Rehearing denied September 13, 1990.

      Guy E. McGaughey, Jr., of McGaughey & McGaughey, Ltd., of Lawrenceville, and Timothy S. Richards, of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellant.
    Melroy B. Hutnick, of Belleville, for appellee Russell Swader.
   JUSTICE RARICK

delivered the opinion of the court:

This convoluted case begins simply with the fact that prior to June of 1982 the City of Mascoutah (the City) had health and hospitalization coverage for its employees through a group insurance policy with Prudential Insurance Company, but because of rising rates, wished to find new coverage. Pursuant to this end, the City offered several agents of various insurance companies the opportunity to meet with its employees one evening in May to discuss their respective group health insurance plans. The agent who sold the City its Prudential policy, Michael Pokojski, was offered the same opportunity. Pokojski naturally wished to retain the City’s business, and realizing Prudential was out of the question, decided to search for suitable alternatives. Pokojski from 1976 up to this point had been an employee of Prudential Insurance Company. He had decided, however, as early as February of 1982 to leave Prudential because of its rising rates, get a broker’s license and sell other insurance. Pokojski joined forces with Jim Campbell, an independent insurance broker, who was then starting up Diversified Financial Services, a partnership of independent insurance brokers. Pokojski began soliciting coverage for other companies even though he was on Prudential’s payroll until July of 1982.

Pokojski, aware of the upcoming meeting with the City employees, began searching for alternative policies. While visiting another broker’s office sometime in April of 1982, Pokojski met William Plumlee, an Illinois district manager for Golden Rule Insurance Company. Pokojski informed him that Prudential’s rates were increasing for almost all of his clients and that he was looking for a company with similar coverage but better rates. According to Pokojski, Plumlee gave him a Golden Rule Insurance kit from the trunk of his car and told him how to figure rates. Plumlee, on the other hand, testified he may have met Pokojski in April on a casual basis but conducted no business activity with him at that time. According to Plumlee, all business transactions began in June, after Pokojski's meeting with the City employees. Pokojski also went to one of Diversified’s brokers, Robert Edmondson, to discuss bidding on the City employees’ health insurance. Edmondson suggested Golden Rule. Edmondson got out his Golden Rule Insurance kit, compared it with the one Plumlee gave to Pokojski, and went over both of them with Pokojski to help him prepare for the presentation to the City employees. Pokojski subsequently met with the City on May 19 and informed the employees he was there on behalf of Golden Rule Insurance Company as a broker. Pokojski told the employees, in accordance with the brochure issued by Golden Rule contained in his kit, that Golden Rule was a take-over type of insurance and would provide coverage for preexisting conditions without limitation up to the amount of coverage that had been provided by Prudential. The brochure Pokojski used bore an issue date of September 1980. Golden Rule, however, had issued a new brochure in February 1982 which listed a $3,000 cap on preexisting conditions. Because he did not have any copies of the new brochures, Pokojski was unaware of this change. The City ultimately chose coverage through Golden Rule as represented by Pokojski with its policy to go into effect June 1, 1982. Pokojski, however, did not have a license to sell Golden Rule as of yet; consequently, all of the paperwork went in over the signature of Edmondson, an independent broker for Golden Rule, per Plumlee’s instructions. After sending in the application, Pokojski then went around to each City employee to enroll him or her specifically within the coverage of the Golden Rule policy using what was referred to as the “long form.” The long form contained spaces for information concerning an applicant’s health and preexisting conditions. Upon submitting the long forms to Golden Rule, Pokojski was informed by someone in underwriting to use the short form registration cards to enroll the employees. The short forms requested no information pertaining to the applicant’s health or preexisting conditions. On June 16, 1982, Golden Rule contacted by mail both Edmondson and the City clerk to notify the City of Golden Rule’s acceptance of its application for group health insurance coverage effective June 1, 1982, and to request that a corrected application be sent in. The requested application accordingly was signed by both the clerk and Edmondson and returned to Golden Rule. Also included in the June 16 correspondence, however, was a letter advising the City of a $3,000 cap for coverage of preexisting conditions for the first 12 months. The City clerk testified she never saw this letter. Several months later, individual policies were sent to each of the City employees. All of these policies contained the $3,000 cap, but apparently none of the employees noticed any such provisions.

Plaintiff Russell Swader was' one of the City’s employees covered under the Golden Rule Insurance group health plan. He learned of the $3,000 cap upon submitting hospital and medical bills, totalling some $16,600, in connection with surgery performed on August 13, 1982, to alleviate a blocked stomach. Swader initially visited the doctor who assisted in the surgery on July 15, 1982, a month and a half after the Golden Rule policy was in effect, complaining of marked weight loss, cramping sensations in the abdomen and vomiting almost once a week after meals. Swader informed the doctor he had ulcer problems for the past 15 years and was taking Tagamet for occasional flare-ups. The doctor believed all of Swader’s conditions existed prior to June 1 and were connected to his history of ulcers. Golden Rule paid only the $3,000 cap, thereby eventually prompting Swader to file suit against Golden Rule, Edmondson and Pokojski. All three defendants accordingly filed counterclaims against each other. After the circuit court of St. Clair County granted a directed verdict against Swader on three fraud counts and struck Pokojski’s counterclaim against Golden Rule, the jury returned a verdict in favor of Swader against Golden Rule, awarding him $16,604.11 in damages on his remaining counts. The jury also rendered a verdict in favor of Golden Rule upon its counterclaim against Edmondson, apportioning the damages 10% to Edmondson and 90% to Golden Rule, and a verdict in favor of Pokojski against Golden Rule on its counterclaim. Golden Rule appeals from the jury’s verdict in favor of Swader and from the trial court’s denial of its post-trial motions. Swader cross-appeals from the denial of his claim for attorney fees.

Golden Rule first argues on appeal the order of the trial court denying its motions for judgment n.o.v. is erroneous as the jury’s verdict in favor of Swader is unsupported by any evidence, and therefore, against the manifest weight of the evidence. Golden Rule specifically points out Pokojski was not one of its agents, and neither he nor Edmondson, an independent broker, had authority to change the terms of Golden Rule’s policies. Additionally, Golden Rule contends Swader’s blocked stomach condition existed prior to June 1, 1982, whether or not it was related to his history of ulcers over the past 15 years.

As we have stated time and again, unless a jury verdict is unreasonable, arbitrary or not supported by the evidence, it will not be disturbed on review. (E.g., Milwaukee Mutual Insurance Co. v. Wessels (1983), 114 Ill. App. 3d 746, 751, 449 N.E.2d 897, 903; Harris v. City of Granite City (1977), 52 Ill. App. 3d 782, 784, 365 N.E.2d 1034, 1036.) Weighing the evidence and the credibility of witnesses and resolving apparent conflicts are functions of the trier of fact with which we will not interfere. (E.g., Milwaukee Mutual, 114 Ill. App. 3d at 752, 449 N.E.2d at 903.) While we sitting as the trier of fact may have reached a different conclusion, we cannot say that the verdict reached here is so unreasonable or so contrary to the evidence as to require reversal. (See Moehle v. Chrysler Motors Corf. (1982), 93 Ill. 2d 299, 305, 443 N.E.2d 575, 578.) Besides the fact the jury may not have believed Swader’s stomach blockage constituted a preexisting condition within the intendments of Golden Rule’s provisions, or just as likely, that the City ever received the letter advising it of the $3,000 cap, the jury also could have believed Pokojski was acting as an agent for Golden Rule with apparent or implied authority to bind it to the policy as represented to the City, a fact which Golden Rule was estopped from denying or actually ratified by its subsequent conduct. After all, Golden Rule did accept Pokojski’s business and the City’s insurance coverage even after learning of the nature of the transaction.

In general, the existence of an agency relationship may be established, and its nature and extent shown, by circumstantial evidence, and reference may be had to the situation of the parties, their acts, and other circumstances germane to the question. (See, e.g., Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854, 862-63, 504 N.E.2d 1289, 1294; Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 23, 473 N.E.2d 588, 593.) If the evidence shows one acting for another under circumstances implying knowledge of the acts on the part of the supposed principal, a prima facie case of agency is established. (Elmore v. Blume (1975), 31 Ill. App. 3d 643, 647, 334 N.E.2d 431, 434.) Such a relationship, however, does not depend necessarily on an express appointment or acceptance by the principal and agent. E.g., Mateyka, 152 Ill. App. 3d at 863, 504 N.E.2d at 1294; Milwaukee Mutual, 114 Ill. App. 3d at 749, 449 N.E.2d at 901.

It is true here that Pokojski, at the time of making his bid to the City, was not an agent in the employ of Golden Rule as that term is normally understood. (See DeGraw v. State Security Insurance Co. (1976), 40 Ill. App. 3d 26, 33, 351 N.E.2d 302, 308.) But, Pokojski held himself out as an agent representing Golden Rule to the City’s employees. They had no reason to believe differently and subsequently procured Golden Rule insurance through him. More importantly, however, Pokojski informed Golden Rule he had sold its insurance to the City and specifically asked how he should submit the City’s application since he was not a licensed agent for them at the present time. Plumlee, Golden Rule’s regional sales manager, who incidentally gave Pokojski his first Golden Rule insurance kit if Pokojski’s testimony is to be believed, told him to put it through over Edmondson’s signature. Golden Rule, now aware of the situation, accepted the benefits of Pokojski’s acts in the form of premiums from the City. Instead of rejecting the City’s application or repudiating the insurance coverage, Golden Rule went further. When Pokojski submitted the long forms detailing health and preexisting conditions of the City employees, Golden Rule instructed him to use the short forms which required no such information. Golden Rule claims it then advised the City of the $3,000 cap. One wonders why this feature was specifically highlighted in the communication to the City on June 16 if this were the only type of insurance Golden Rule now offered and had been offering for several months preceding the City’s application. The jury easily could have believed Golden Rule was aware there was a problem, having received an older application form, but took inadequate means to notify those involved of potential misunderstandings or misrepresentations in order to keep the City’s insurance business. We further note Pokojski’s representations of complete coverage for preexisting conditions were not “made out of the blue” but rather were made in reliance upon brochures issued by Golden Rule and distributed to him through either Plumlee or Edmondson or both. These brochures induced the City-employees to choose Golden Rule; Golden Rule under the circumstances should be bound by its representations made through Pokojski when it accepted the benefits of his solicitation. (See Dobosz v. State Farm Fire & Casualty Co. (1983), 120 Ill. App. 3d 674, 680, 458 N.E.2d 611, 615. See also Armstrong v. United Insurance Co. (1981), 98 Ill. App. 3d 1132, 1144, 424 N.E.2d 1216, 1225.) Furthermore, while an insured typically is charged with notice of the contents of his insurance policy (see Dobosz, 120 Ill. App. 3d at 682, 458 N.E.2d at 616), here the policies were not made available to the employees until September, well after Swader’s surgery. The employees believed they had certain coverage, led their lives accordingly and did not look for other insurance coverage to their detriment when Golden Rule had several, if not unlimited, opportunities earlier in the relationship to correct the situation. We cannot say the jury would have been in error if it believed Golden Rule was estopped from denying coverage under these circumstances when estoppel signifies an abatement, raised by law, of rights and privileges of the insurer where it would be inequitable to permit their assertion. While such relinquishment need not be voluntary, intended or desired by the insurer, it does necessarily require prejudicial reliance on the part of the insured. See Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872, 879; Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 304-05, 393 N.E.2d 1223, 1229; DeGraw, 40 Ill. App. 3d at 34, 351 N.E.2d at 309. See also Tibbs v. Great Central Insurance Co. (1978), 57 Ill. App. 3d 866, 868, 373 N.E.2d 492, 493.

It is also quite possible that the jury believed Golden Rule ratified Pokojski’s actions in this instance. Ratification is a form of equitable estoppel involving the express or implied adoption of the acts of another by one for whom the other assumes to be acting, even without authority. At the heart of the doctrine of ratification is the concept that the person ratifying obtains a benefit, and that the benefit is obtained through the actions of a person that is acting in his behalf with apparent or implied authority. (See In re Marriage of Jackson (1989), 179 Ill. App. 3d 479, 484, 534 N.E.2d 687, 689; Mateyka, 152 Ill. App. 3d at 866, 504 N.E.2d at 1297; Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 883, 489 N.E.2d 311, 316-17; Advance Mortgage Corp. v. Concordia Mutual Life Association (1985), 135 Ill. App. 3d 477, 484, 481 N.E.2d 1025, 1030-31.) As long as the principal has full knowledge of the facts and has the choice of either accepting or rejecting the benefits of the transaction, ratification will be found. (See Phipps v. Cohn (1985), 139 Ill. App. 3d 210, 213, 487 N.E.2d 428, 431; Reavy Grady & Crouch Realtors v. Hall (1982), 110 Ill. App. 3d 325, 328, 442 N.E.2d 307, 310.) Being questions of fact for the trier of fact to resolve (see Western Casualty, 105 Ill. 2d at 500, 475 N.E.2d at 879), we cannot say the jury could not have found either estoppel or ratification to be applicable in this instance.

Another possibility exists that the jury believed Golden Rule did in fact waive the $3,000 cap as evidenced by payments to other City employees of sums exceeding $3,000 for preexisting conditions even though occurring after Swader’s claim arose and even though Golden Rule asserts they were mere mistakes. Waiver is the intentional relinquishment of a known right. It arises from an affirmative act of the defendant, and in the field of insurance law, generally is implied from the acts, words or conduct of the insurer or its agents. (See Western Casualty, 105 Ill. 2d at 499, 475 N.E.2d at 878; Mulholland v. State Farm Mutual Automobile Insurance Co. (1988), 171 Ill. App. 3d 600, 609, 527 N.E.2d 29, 34; The Hartford v. Doubler (1982), 105 Ill. App. 3d 999, 1002, 434 N.E.2d 1189, 1192.) In contrast to estoppel, no act of the insured is necessary to complete waiver; it is essentially unilateral, referring to a legal consequence of the insurer’s act or conduct. (See National Discount Shoes, Inc. v. Royal Globe Insurance Co. (1981), 99 Ill. App. 3d 54, 59, 424 N.E.2d 1166, 1170.) Again, we cannot say under the circumstances presented here the jury could not reasonably have found waiver of the $3,000 cap.

Because there is sufficient evidence on the record to support the jury’s verdict under several possible theories, we therefore are compelled to affirm the judgment as rendered.

Golden Rule argues, however, the jury, and consequently the trial court, erred in not giving it credit in the verdict and judgment for payment of benefits in the amount of $3,000 already made to Swader. We agree. It is clear from the record that Golden Rule did pay Swader the $3,000 cap, yet the jury’s award reflects the exact dollar amount of Swader’s medical bills without this $3,000 payment. We therefore modify the jury’s verdict to give Golden Rule the $3,000 credit to which it was entitled. See Martin v. McIntosh (1976), 37 Ill. App. 3d 526, 532, 346 N.E.2d 450, 455. See also In re Estate of Segur (1972), 5 Ill. App. 3d 459, 462, 283 N.E.2d 76, 78-79.

On cross-appeal, Swader argues the court erred in refusing to award him attorney fees considering Golden Rule’s unreasonable and vexatious refusal to settle his claim. The trial court, after hearing all of the evidence and arguments of counsel, ruled the award of attorney fees was not justified in this instance. In light of the totality of the circumstances, we cannot say Golden Rule’s denial of liability was not made initially in good faith. We therefore find no abuse of the trial court’s discretion in denying attorney fees. Cf. Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 554-55, 536 N.E.2d 194, 204; Hall v. Svea Mutual Insurance Co. (1986), 143 Ill. App. 3d 809, 811-12, 493 N.E.2d 1102, 1105; Deverman v. Country Mutual Insurance Co. (1977), 56 Ill. App. 3d 122, 124-25, 371 N.E.2d 1147, 1149.

For the foregoing reasons, we affirm the judgment of the circuit court of St. Clair County as modified.

Affirmed as modified.

WELCH and CHAPMAN, JJ., concur.


author: JUSTICE HARRISON

text:
    JAMIE ROBINSON, a Minor, by Vivian Robinson, her Mother and Next Friend, Plaintiff-Appellant, v. CLARA MEADOWS, Indiv. and as Adm’r of the Estate of Charles Meadows, Deceased, Defendant-Appellee.
    Fifth District
    No. 5 — 89—0706
    Opinion filed August 14, 1990.

      Harris & Lambert, of Marion, for appellant.

      Charles E. Schmidt, of Mitchell, Brandon & Schmidt, of Carbondale, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Jamie Robinson, by her mother and next friend, brought an action in the circuit court of Saline County to recover damages for personal injuries she sustained when she was attacked by a dog owned by Clara and Charles Meadows. After the action was filed, Charles Meadows died, and the matter proceeded to trial against Clara Meadows, individually and as the administrator of Charles Meadows’ estate. At the conclusion of the trial, the jury returned a verdict in favor of the Meadowses and against plaintiff. Plaintiff’s post-trial motion was denied, and she now appeals. For the reasons which follow, we hold that the circuit court should have entered judgment notwithstanding the verdict in favor of plaintiff on the question of liability and ordered that plaintiff be given a new trial on the issue of damages. We therefore reverse and remand with directions.

The evidence presented to the jury established that on Saturday, October 5, 1985, plaintiff accompanied her mother, Vivian Robinson, when her mother paid a social call on Clara Meadows at the Meadowses’ home. At the time, plaintiff was just under four years old. Plaintiff’s mother and Clara Meadows were friends and former co-workers, and Clara had previously babysat for plaintiff.

Upon their arrival at the Meadowses’ home, plaintiff and her mother were welcomed by Charles Meadows. They went into the living room, where Clara and plaintiff’s mother sat and talked. Plaintiff remained in the living room with them. She played there as they talked, and occasionally she would speak to Clara or sit down beside her. According to Clara, plaintiff “was just playing around, she sat on my lap some, there was an ottoman on the left side of me and she would sit on that, we talked, she liked to be talked to, she’s a nice child.” At no time was plaintiff boisterous or unruly. To the contrary, Clara stated that plaintiff was “being a good girl.”

Also in the living room with plaintiff, plaintiff’s mother and Clara were the two dogs which belonged to Clara and her husband. The dogs were named Tippy and Ben. Tippy simply lay in the chair by Clara, while Ben would periodically walk in and out of the room. After nearly an hour, there was a knock on the front door. As was their habit when there was such a knock, Ben and Tippy both ran to the door and began barking. According to plaintiff’s mother, Ben became particularly agitated. In her words, he “just went crazy.” She stated that Ben “started barking and screeching and jumping at the door and it was wild.” Clara, however, testified that the dog’s barks were “normal, you know, like a dog barks, you know, how do they, not an angry bark or anything,” and she denied that either of the dogs jumped at the door.

In any ease, there is no dispute that the dogs’ barks so frightened plaintiff that she screamed. When this happened, Ben, who was approximately six feet away, responded by attacking plaintiff viciously. Ben tore plaintiff’s lip and inflicted puncture wounds and scratches on her face, neck and throat.

Plaintiff’s mother rushed her to the local hospital. After a brief examination, which revealed that part of plaintiff’s lip was missing, plaintiff was referred to a plastic surgeon in Evansville, Indiana. Plaintiff’s mother then took her to St. Mary’s Medical Center in Evansville, where the plastic surgeon ordered surgery immediately. During the surgery, which was performed under a general anesthetic, the doctor excised a portion of plaintiff’s lip and stitched up wounds on her neck and face. Plaintiff was ultimately left with serious scars and a permanent shortening of her lip.

In this litigation, plaintiff seeks to recover damages for her injuries based on section 16 of the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366), which states:

“If a dog or other animal, "without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.”

This statute provides an alternative remedy to that available at common law for a person who has been injured by a dog whose vicious and dangerous propensities were known to its owner. (See Steichman v. Hurst (1971), 2 Ill. App. 3d 415, 417, 275 N.E.2d 679, 680.) Unlike the alternative common-law remedy, an action brought under section 16 of the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366) does not require proof of the dog’s vicious nature or the defendant’s knowledge of that nature. (Steinberg v. Petta (1986), 114 Ill. 2d 496, 500, 501 N.E.2d 1263, 1265.) Indeed, the very purpose of the legislation was to reduce the burden on plaintiffs by eliminating the common-law requirement that a plaintiff must plead and prove that an animal owner either knew or should have known that the animal had a propensity to injure people. Forsyth v. Dugger (1988), 169 Ill. App. 3d 362, 365, 523 N.E.2d 704, 706.

Under section 16 of the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366), there are only four elements which must be proved: (1) injury caused by an animal owned by the defendants; (2) lack of provocation; (3) peaceable conduct of the person injured; and (4) the presence of the injured person in a place where he has a legal right to be. (169 Ill. App. 3d at 365, 523 N.E.2d at 706.) In the matter before us, defendants did not dispute that plaintiff was injured by their dog. They admit that at the time of the injury, plaintiff was peaceably conducting herself. They also admit that at the time of the injury, plaintiff was in a place where she had a legal right to be. This left for the jury’s determination only the question of whether defendants’ dog attacked and injured plaintiff “without provocation.”

Section 16 of the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366) does not, itself, define the term “provocation.” Where, as here, the terms of a statute are not specifically defined, the words must be given their ordinary and popularly understood meanings, but the words must also be construed with reference to the purposes and objectives of the statute. (Niven v. Siqueira (1985), 109 Ill. 2d 357, 366, 487 N.E.2d 937, 942.) Where literal enforcement of a statute will result in great injustice which was not contemplated, we will construe the statute to give effect to what must have been reasonably intended by the legislature. Vanderlei v. Heideman (1980), 83 Ill. App. 3d 158, 160, 403 N.E.2d 756, 757.

As commonly understood, provocation means an act or process of provoking, stimulation or excitement. (Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 131, 344 N.E.2d 268, 270.) Similarly, “to provoke” has been defined as “to excite anger or passion; to exasperate; to irritate; to enrage; to excite; to stimulate; to arouse; to call forth; to call into being or action; cause, occasion.” (73 C.J.S. Provoke 324-25 (1983).) These definitions are so expansive, however, that, if taken literally, section 16 of the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366) could be interpreted to mean that provocation exists whenever any external stimulus has precipitated the attack or injury by an animal, i.e., whenever the animal’s actions are not completely spontaneous. Although we are aware of one recent case containing language which seems to support such a view, Forsyth v. Dugger (1988), 169 Ill. App. 3d 362, 366, 523 N.E.2d 704, 706, we believe that so literal an interpretation would render the statute largely meaningless and yield unjust and absurd results.

For example, a dog may attack an innocent child riding his bicycle down a public street because the movement of the bicycle has excited it or the sounds of traffic have startled it. Similarly, a dog may bite a bald-headed man walking down the hallway of his apartment building because, for whatever reason, the dog has developed a fear of men without hair. In each case, “provocation” could be said to exist if that term were given its broad and literal interpretation. As a result, neither the innocent child nor the unfortunate bald-headed man would have any recourse under the statute for his injuries.

That the acts which aroused the dog may have been wholly unintentional would not alter this conclusion. (Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 133, 344 N.E.2d 268, 272.) It would not matter that the “provocateur” was a child of tender years. (36 Ill. App. 3d at 133, 344 N.E.2d at 272.) It would not even matter that the person attacked was not the individual or agent who was responsible for stimulating the dog and precipitating its attack. The source of outside stimulus has been held to be immaterial. The “provocation” may be caused by anyone. Forsyth v. Dugger (1988), 169 Ill. App. 3d 362, 366, 523 N.E.2d 704, 706.

To deny recovery under such circumstances would not only be grossly unfair, it would also be directly contrary to the intent of the statute. As we have indicated, and as our supreme court has recently recognized, the purpose of section 16 of the Animal Control Act (111. Rev. Stat. 1985, ch. 8, par. 366) was simply to reduce the burden on dog-bite plaintiffs by eliminating the “one-bite rule” — the common law requirement that a plaintiff must plead and prove that a dog owner either knew or was negligent not to know that his dog had a propensity to injure people. Harris v. Walker (1988), 119 Ill. 2d 542, 547, 519 N.E.2d 917, 918.

In view of this purpose, obtaining redress for injuries caused by an animal should be easier under the Act than it was under the common law. If, however, provocation could be established merely by showing that an animal’s attack resulted from some outside stimulus and was not merely spontaneous, just the opposite would happen. A plaintiff would almost never be able to prevail. We cannot accept such an incongruous result. Although the statute was surely not meant to impose strict liability on animal owners (Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 133, 344 N.E.2d 268, 272), we do not believe that it was meant to grant animal owners virtual immunity from liability either.

The parties have not cited, and we have not found, any authority which has systematically analyzed this problem. In attempting to reconcile the expansive interpretation to which the term “provocation” is susceptible, on the one hand, with the purposes of section 16 of the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366), on the other, the courts of this State have, for the most part, proceeded on a case-by-case basis. In McEvoy v. Brown (1958), 17 Ill. App. 2d 470, 479-80, 150 N.E.2d 652, 655-56, for example, the court found that the mere acts of untying a dog and feeding it, in the absence of any evidence of any characteristic or action of the dog that would tend to apprise the plaintiff that it might injure her, did not constitute acts of provocation on the plaintiff’s part.

In Messa v. Sullivan (1965), 61 Ill. App. 2d 386, 394, 209 N.E.2d 872, 876, the court held that where the plaintiff’s only actions consisted of stepping off an elevator and walking toward the defendants’ apartment door, those actions did not constitute provocation and thereby relieve the owner from liability for the plaintiff’s injuries, even though the dog interpreted the plaintiff’s movements as hostile actions calling for attack. Similarly, in Steichman v. Hurst (1971), 2 Ill. App. 3d 415, 418-19, 275 N.E.2d 679, 681, the court found no provocation where a dog had become agitated by the presence of the mail carrier and attacked her, causing her to fall. This was so even though the mail carrier had sprayed the dog with “Halt,” a dog repellent, during the course of the confrontation.

On the other hand, the sort of stimulation which the courts have said can rise to the level of provocation includes pushing or kicking a dog which is recuperating from an injury (Siewerth v. Charleston (1967), 89 Ill. App. 2d 64, 231 N.E.2d 644), crossing into an area which a dog is protecting and remaining within the dog’s reach while it is eating (Stehl v. Dose (1980), 83 Ill. App. 3d 440, 403 N.E.2d 1301), stepping on a dog’s tail while it is chewing on a bone (Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 344 N.E.2d 208) and jumping on an animal’s back (Forsyth v. Dugger (1988), 169 Ill. App. 3d 362, 367, 523 N.E.2d 704, 707) (where plaintiff was injured when horse on which he was sitting walked under a tree, plaintiff was precluded from recovering under the Animal Control Act, because the horse’s action in walking under the tree was caused by the action of a third party who jumped onto the back of plaintiff’s mount).

Most recently, in Guthrie v. Zielinski (1989), 185 Ill. App. 3d 266, 270, 541 N.E.2d 178, 180-81, the court concluded that there was at least a disputed material fact on the question of whether plaintiff had provoked a dog to attack her, precluding entry of summary judgment, where the defendants had been warned when they acquired the dog that it was difficult to control; the dog had always disliked plaintiff, who was defendants’ adult daughter; and, just before the attack, plaintiff had entered defendants’ home through a garage door without knocking or announcing her entry, walked into the kitchen, where plaintiff’s mother sometimes allowed the dog to eat, said hello to defendants, then turned to close the door and check the time on a wall clock.

Although it is difficult to draw generalizations based on these cases, one principle which this court has recognized is that where the acts which have stimulated or excited the dog were unintentional, as they certainly were in the case before us, no “provocation” can be said to exist within the meaning of section 16 of the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366) if the acts cause the dog to attack the plaintiff viciously and the vicious attack is “out of all proportion to the unintentional acts involved.” (Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 134, 344 N.E.2d 268, 272, citing Messa v. Sullivan (1965), 61 Ill. App. 2d 386, 209 N.E.2d 872.) This is just such a case.

While plaintiff’s frightened scream certainly triggered the attack on her by defendants’ dog, that scream cannot be regarded under any reasonable standard as having been sufficient to account for the savagery of the dog’s assault. Thus, as a matter of law, no “provocation” can be said to have existed. We must therefore conclude that the evidence, when viewed in its aspect most favorable to the defendant, the nonmoving party, so overwhelmingly favored the plaintiff that no contrary verdict based on it could ever stand. As a result, the circuit court erred in denying plaintiff’s motion for judgment notwithstanding the verdict on the issue of liability. See Steinberg v. Petta (1986), 114 Ill. 2d 496, 503, 501 N.E.2d 1263, 1267.

Accordingly, the judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment notwithstanding the verdict in favor of plaintiff on the issue of liability and to grant plaintiff a new trial on the issue of damages.

Reversed and remanded with directions.

RARICK and GOLDENHERSH, JJ., concur.