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Booth v. Greber





APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding.


Rehearing denied May 23, 1977.

This is an action to enforce a post-employment restrictive covenant. The plaintiff, Mary Margaret Booth, instituted this action to enjoin the defendant, Berta B. Greber, a former employee of plaintiff, from engaging in an electrolysis business in competition with plaintiff. After hearing evidence, the trial judge entered an order of preliminary injunction. Defendant appeals from that order.

The following issues are raised for our consideration: (1) whether plaintiff has an appropriate business interest for protection by enforcement of a restrictive covenant; (2) whether the restrictive covenant in question is unreasonable as regards the parties and the public; and (3) whether the preliminary injunction granted by the trial court is too broad.

Plaintiff is the owner and operator of an electrolysis business located in Mt. Prospect, Illinois. Electrolysis is the process and procedure for the removal of unsightly hair from the face and other parts of the body by use of an electric needle. It is a lengthy process which requires from 10 to 25 or more treatments. Considerable training is required to become a skilled electrologist.

On June 8, 1974, defendant entered into the employment of plaintiff as an electrologist. She signed an employment contract which contained the following restrictive covenant:

"The Employee will agree to work a minimum of two (2) years for the Employer, and said Employee further covenants and agrees that she will not, during the term of this employment nor for two (2) years immediately following the termination of this said employment, (regardless of whether said termination of this employment is voluntary or involuntary), establish her own business as an electrologist or work as an electrologist in the area within a 25 mile radius of any location where employer maintains an office, for herself or for any other person or persons, firm, company, partnership or corporation directly or indirectly engaged in electrolysis work."

The contract provided for the termination of employment by either party with one month's notice; but if defendant failed to comply with provisions of the agreement, her employment could be terminated without notice. Defendant's employment was terminated without notice on July 25, 1975. Although defendant's work was excellent, she was dismissed for certain deprecating remarks that she allegedly expressed in the presence of customers regarding plaintiff's professional competency and ability to operate an electrolysis business. Defendant denied making these remarks.

Defendant entered into a lease for her own business on September 15, 1975. The shop opened two weeks later under the name "Electrolysis by Berta." It was also located in Mt. Prospect, approximately three to four miles from plaintiff's shop. Although defendant claimed she did not seriously think of going into business for herself until after her dismissal, defendant did make one inquiry of a company regarding electrolysis equipment while still in plaintiff's employ. To generate business, defendant sent letters of introduction to dermatologists who could refer clients to her. Advertisements were placed in local newspapers. Also, defendant and her secretary, Janice O'Keefe, contacted 49 customers of plaintiff to inform them of her new business. Thirty-three were telephoned, and the rest were mailed new business cards. Of the persons contacted, 24 left plaintiff and became customers of defendant. Five new patients had been independently developed by defendant at the time of the hearing.

Defendant denied that she copied plaintiff's records. She testified that she developed a customer list by recalling from her memory, in collaboration with Mrs. O'Keefe (who had worked for plaintiff during the same period of time as defendant), the names of plaintiff's customers whom she had treated. The addresses and phone numbers were found in the telephone directory. They developed a list of approximately 50 from the more than 1,000 customers defendant had seen in plaintiff's shop.

Since defendant was discharged, plaintiff has been the sole electrologist in her shop. Her income has decreased, but this is due solely to the fact that she cannot handle more patients alone. Plaintiff treats in excess of 100 patients per week. A new customer need wait about three weeks for an appointment with her unless there is a cancellation. There have been more cancellations than usual since defendant left, and the customer waiting list is down from 60 to 20 names.

There are many electrolysis shops in the greater Chicagoland area, within and outside a 25-mile radius of plaintiff's shop. Ten shops are listed in the telephone directory for Mt. Prospect and surrounding villages, and one electrolysis business is located in the same building as plaintiff. Plaintiff has been the owner of her shop for three years.

Defendant testified that she did not seek employment in a business more than 25 miles away because she wanted to work close to home. Her son is a five-year-old in kindergarten, and her husband has been disabled on several occasions in the last four years. They purchased a home while she was still in plaintiff's employ and could not move to another location without great difficulty.

The trial judge granted a preliminary injunction, enjoining defendant from working as an electrologist and from operating an electrolysis business within a radius of 25 miles from plaintiff's business, and in particular from operating an electrolysis business known as "Electrolysis by Berta," located in Mt. Prospect, for a period of two years. This appeal ...

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