APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
J. SCHALLER, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
This case concerns the validity of a contractual restriction upon the right to practice medicine. Plaintiffs, a group of physicians practicing as a partnership and conducting business as the Blue Island Medical Center, brought suit in the circuit court of Cook County to enjoin a former associate, Farrokh Shadab, from practicing medicine in Blue Island, Illinois, or within a five-mile radius thereof in violation of his partnership agreement. After hearing the arguments of counsel but without receiving any evidence, the circuit court denied plaintiffs' request for injunctive relief, stating that the terms of the restriction were unreasonable. Plaintiffs appeal, contending that this particular restrictive covenant is enforceable as a matter of law.
Plaintiffs' complaint contains the following factual allegations: The partnership agreement in question was entered into on January 1, 1976. The purpose of this written covenant was the affiliation of the plaintiffs so that they could offer their various medical specialties at one central location. Paragraph 25 of the partnership agreement declared:
"In the event that any Partner shall withdraw or retire from the Partnership, such Partner covenants, warrants and agrees that he will not engage in the practice of medicine for a period of five (5) years thereafter within the City of Blue Island and a 5-mile radius thereof either as an employee of another, in association with others, as an individual, or as a stockholder of, promotor of or advisor to any other individual, partnership or corporation other than the Partnership, which shall offer any services or goods of the type now or hereafter offered by the Partnership."
This agreement also provided that new partners could be admitted into the partnership with the approval of three-quarters of the partner membership. However, this provision contained the stipulation that each newly accepted partner was bound by the pre-existing terms of the agreement.
Shadab was not an original signatory of the partnership agreement. He was admitted to the partnership on July 1, 1976, pursuant to the aforementioned provision allowing for new partners. On June 13, 1977, Shadab sent plaintiffs' business manager a letter which announced his resignation from the partnership and which stated that his last day of work would be October 13, 1977. Thereafter, the defendant indicated that he intended to practice pediatric medicine in association with a medical clinic located approximately five blocks from the Blue Island Medical Center, and he informed a representative of the partnership that he had scheduled office hours for October 14, 1977. Allegedly, Shadab has been conducting his practice at the neighboring clinic since that date.
Plaintiffs filed their original complaint for injunctive relief on October 11, 1977. In order to enforce the restrictions contained in the above-stated paragraph, plaintiffs requested a temporary restraining order, a temporary injunction, a hearing on the motion for the temporary injunction and a permanent injunction. Defendant then filed an answer to this complaint. After hearing argument, the court entered an order on October 24, which denied the temporary restraining order and which stated that paragraph 25 was unreasonably restrictive with regard to the scope of practice prohibited, the geographical area and the time limitation. Additionally, the court verbally denied plaintiffs' motion for the temporary injunction and for the hearing on the temporary injunction, but it granted plaintiffs' request for leave to file instanter a first amended complaint.
The first amended complaint was filed later that day and was substantially the same as the original with the exception that the prayer for relief was modified as to the stated limitations. The time limitation was lowered from five years to one year, and the radius was reduced from five miles to one mile. Also, this complaint no longer sought to restrain defendant's practice of medicine at licensed hospital facilities within the prohibited area.
In response to the first amended complaint, the circuit court entered a second order on October 27, 1977. This order specifically denied plaintiffs' amended request for a temporary restraining order and a temporary injunction.
Plaintiffs filed their notice of appeal on October 28, 1977. This notice stated that plaintiffs were appealing from both orders.
Defendant argues that plaintiffs waived any contention of error, regarding the trial court's ruling on the relief requested in their original complaint, when they elected to file an amended pleading. He contends that plaintiffs by taking such action abandoned their initial complaint, and he maintains, therefore, that the October 24 order should not be considered part of the record on appeal.
1 As a general rule, an amendment which is complete in itself and which makes no reference to the prior pleading supersedes it, and the original pleading ceases to be a part of the record, being in effect abandoned or withdrawn. (Wright v. Risser (2d Dist. 1937), 290 Ill. App. 576, 581, 8 N.E.2d 966, 968-69.) Consequently a plaintiff who chooses to file an amended pleading usually waives all objections to the trial court's ruling on the original complaint. (People ex rel. Morris v. Opie (1922), 304 Ill. 521, 522, 136 N.E. 752, 753.) However, a stringent application of this principle would have the effect of precluding this court from reviewing the trial court's ruling on the reasonableness of the limitations enumerated in paragraph 25 since the trial court's order of October 27 does not contain a similar finding with respect to the modified restrictions in the first amended complaint.
2 We feel that such a result would unfairly limit the scope of plaintiffs' appeal. We base our conclusion on the fact that plaintiffs' notice of appeal was filed in a timely manner as to both orders (see Ill. Rev. Stat. 1977, ch. 110A, par. 303(a)) and that it stated specifically that both orders were being appealed. More importantly, plaintiffs never demonstrated any intention of abandoning their initial claim against Shadab. This is evidenced by the fact that the first amended complaint is fundamentally the same as the original complaint with the exception of the ...