Sheehy v. Sheehy, 1-97-3869

• Decision Date: 06 October 1998
• Docket Number: No. 1-97-3869,1-97-3869
• Citation: 234 Ill.Dec. 34,299 Ill.App.3d 996,702 N.E.2d 200
• Parties: , 234 Ill.Dec. 34, 14 IER Cases 833 John R. SHEEHY, Plaintiff-Appellant, v. James R. SHEEHY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 200

702 N.E.2d 200

299 Ill.App.3d 996, 234 Ill.Dec. 34,

14 IER Cases 833

John R. SHEEHY, Plaintiff-Appellant, v. James R. SHEEHY, Defendant-Appellee.

No. 1-97-3869.

Appellate Court of Illinois,

First District, Second Division.

Oct. 6, 1998.

Edmund P. Burke, Karen A. White, Burke & Burke, Ltd, Chicago, for Plaintiff-Appellant.

Michael J. Murray, Edmund P. Boland, Carey, Filter, White & Boland, Chicago, for Defendant-Appellee.

Justice COUSINS delivered the opinion of the court:

Plaintiff filed an emergency motion to enforce a covenant not to compete ancillary to the contract sale of John Sheehy & Sons Funeral Home, Ltd. The trial court denied the motion. On appeal, plaintiff contends that: (1) the trial court misconstrued the covenant not to compete; (2) the trial court's denial of injunctive relief by refusing to enforce the covenant not to compete was contrary to applicable law and contrary to the manifest weight of the evidence; and (3) the trial court's denial of noninjunctive relief was contrary to applicable law.

BACKGROUND

This action initially arose out of a verified complaint for accounting, injunction, dissolution and appointment of a custodian or receiver filed on February 9, 1994, by plaintiff, John R. Sheehy, against John Sheehy & Sons Funeral Home, Ltd. (Funeral Home), defendant James R. Sheehy, and Michael Sheehy. On September 11, 1995, pursuant to the provisions of section 12.56 of the Illinois Business Corporation Act of 1983 (805 ILCS 5/12.56 (West Supp.1995)), the trial court conducted an open bidding process that resulted in the court's acceptance of plaintiff's election to purchase defendant's shares in the Funeral Home along with the beneficial interest in land trust 88-434, which held title to the real property on which the Funeral Home operated its business.

On November 3, 1995, the purchase was memorialized in a definitive agreement (agreement) that was executed by the parties. Per the terms of the Agreement, the purchase price would be payable in four annual installments in consideration of a four-year covenant not to compete (covenant) found in section F of the agreement. The covenant reads, in pertinent part:

"For a period of four years from the date of this Agreement, in consideration of this Agreement, [defendant] shall not:

a) Directly or indirectly own, manage, operate, join, control, or participate in, or be connected as an officer, employee, partner, or otherwise with any funeral home business, or otherwise compete with the current business of the Company within a ten (10) mile radius of 7020 W. 127th Street, Palos Heights, Illinois (the 'Property').

b) Canvass or solicit any business, individually or for any other funeral home, from any of the Company's prepaid clients or any member of the immediate family of any decedent for whom the Company has provided funeral services prior to the date hereof (collectively, 'Protected Clients') or from any potential clients within a 10 mile radius of the Property, provided however that nothing contained in this Section F shall preclude [defendant] from servicing clients who approach [defendant] of their own free will and accord provided further that such services are not provided in a funeral home within a ten mile radius of the Property."

Following the purchase, the original complaint was dismissed, with prejudice; however, the court retained jurisdiction to enforce the terms of the agreement.

On or about May 20, 1996, defendant became the managing funeral director of a branch of the SCI/Blake-Lamb Funeral Home. ¹ The branch was located at 544 W. 31st Street, Bridgeport, Chicago, Illinois (Bridgeport location). SCI/Blake-Lamb has various branch locations within the 10-mile restricted zone; however, defendant's employment was limited to working at the Bridgeport location, which is outside the 10-mile restricted zone.

Since beginning employment at the Bridgeport location, defendant attended continuing education classes and two business meetings with a superior at SCI/Blake-Lamb's Oak Lawn location, which is within the 10-mile restricted zone. He also appeared in his capacity as an employee of SCI/Blake-Lamb for funeral services at cemeteries located within the 10-mile restricted zone.

On November 4, 1996, plaintiff filed an emergency motion, which sought to enforce the covenant and impose sanctions and injunctive relief, naming his identical twin brother as defendant. Plaintiff's motion alleged that defendant breached the covenant by participating in certain activities within 10 miles of the Funeral Home located at 7020 W. 127th Street in Palos Heights, Illinois. Additionally, plaintiff requested that the first installment then due under the covenant be forfeited, along with all future installments, until compliance with the covenant was ensured.

A hearing on the emergency motion was held on December 11, 1996, and continued to July 15, 1997. Following the hearing on July 15, 1997, the trial court denied plaintiff's emergency motion. Plaintiff appeals.

We affirm.

ANALYSIS

I

Plaintiff initially contends that the trial court misconstrued the covenant in that its clear and unambiguous language prohibits defendant from being employed by SCI/Blake-Lamb, from attending continuing education classes and business meetings at a SCI/Blake-Lamb branch funeral home located within the 10-mile radius, and from conducting funeral director activities as an employee of SCI/Blake-Lamb at cemeteries located within the 10-mile radius.

It has been held that a contract is ambiguous if it can be understood in more than one sense or it is reasonably susceptible of more than one meaning. P.A. Bergner & Co. v. Lloyds Jewelers, Inc., 112 Ill.2d 196, 203, 97 Ill.Dec. 415, 492 N.E.2d 1288, 1291 (1986). When a contract is unambiguous, its construction is a question of law for the court. Farm Credit Bank v. Whitlock, 144 Ill.2d 440, 447, 163 Ill.Dec. 510, 581 N.E.2d 664, 667 (1991). The parties agree that the language of the covenant is clear and unambiguous. As such, the language must be given its ordinary and natural meaning. Srivastava v. Russell's Barbecue, Inc., 168 Ill.App.3d 726, 730, 119 Ill.Dec. 562, 523 N.E.2d 30, 33 (1988). Accordingly, we will examine only the plain language of the agreement in order to ascertain the parties' intent. See Stichter v. Zuidema, 269 Ill.App.3d 455, 459, 206 Ill.Dec. 929, 646 N.E.2d 296, 299 (1995).

In the case sub judice, plaintiff contends that the trial court misconstrued the language of the covenant in denying his emergency motion. The covenant states that defendant may not "directly or indirectly own, manage, operate, join, control, or participate in, or be connected as an officer, employee, partner, or otherwise with any funeral home business, or otherwise compete with the current business of the company within a ten (10) mile radius" of the Funeral Home. Contract language must not be rejected as meaningless or surplusage; therefore, it is presumed that the terms and provisions of a contract are purposely inserted and that the language was not employed idly. Lempa v. Finkel, 278 Ill.App.3d 417, 428, 215 Ill.Dec. 408, 663 N.E.2d 158, 166 (1996). A court will neither add language or matters to a contract about which the instrument itself is silent, nor add words or terms to an agreement to change the plain meaning of the parties as expressed in the agreement. Stichter, 269 Ill.App.3d at 459-60, 206 Ill.Dec. 929, 646 N.E.2d at 299. However, a court may modify the restraints embodied in a covenant not to compete. Weitekamp v. Lane, 250 Ill.App.3d 1017, 1027, 189 Ill.Dec. 486, 620 N.E.2d 454, 461 (1993).

Defendant is affiliated with a funeral home business with branches within the 10-mile restricted zone that compete with plaintiff's funeral home business. However, on review, we conclude that defendant's employment at a funeral home branch located outside the 10-mile restrictive zone does not violate the covenant. Although the parties disagree whether the ordinary meaning of the words in the covenant preclude defendant from being connected as an employee or otherwise to any SCI/Blake-Lamb funeral home within the 10-mile radius even though he is employed at a branch location outside of the 10-mile restricted zone, contract language is not ambiguous simply because the parties do not agree upon its meaning. Srivastava, 168 Ill.App.3d at 992, 119 Ill.Dec. at 567, 523 N.E.2d at 35. The language of the covenant precludes defendant from participating with a funeral home business or otherwise compete with plaintiff's business within a 10-mile radius; however, if we were to interpret the covenant as precluding defendant's employment by any funeral home that has branches within the restricted zone even if he does not work within the restricted zone, the covenant's proscription would be too broad. Lee/O'Keefe Insurance Agency, Inc. v. Ferega, 163 Ill.App.3d 997, 1005-06, 114 Ill.Dec. 919, 516 N.E.2d 1313, 1319 (1987).

Moreover, we agree with the trial court regarding the effect of defendant attending continuing education classes and business meetings within the 10-mile restricted zone. In our view, no adverse effect has been shown by plaintiff as a result of defendant's attendance at the classes and meetings. Insofar as the classes are concerned, defendant is required to attend the classes pursuant to being licensed as a funeral director. See 225 ILCS 41/10 35 (West 1994). We hold that the defendant's presence within the 10-mile radius to attend classes and business meetings was not participation in the funeral business of another, or otherwise competition with plaintiff's business.

The defendant entered the restricted zone on two occasions to attend business meetings at the Oak Lawn location per the request of SCI/Blake-Lamb officials. Rosemarie Lamb, the president of Blake-Lamb Funeral Homes, testified that the meetings were held at the Oak Lawn location because the computer program for the...