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H L G & Associates v. Ginzkey

OPINION FILED JUNE 25, 1980.

HAGERTY, LOCKENVITZ, GINZKEY AND ASSOCIATES, PLAINTIFF-APPELLEE,

v.

ROBERT E. GINZKEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of McLean County; the Hon. KEITH E. CAMPBELL, Judge, presiding.

MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

A covenant not to "compete."

Enforced below; $7,313.72 in damages.

We reverse.

Robert Ginzkey (the defendant) was found to have breached a covenant not to compete which was contained in an agreement he entered into with the plaintiff corporation upon the conclusion of his relationship with that corporation. Prior to the agreement, defendant was a co-founder, officer, director, shareholder, and employee of the plaintiff corporation. He was ordered to pay $7,313.72 in damages, such sum representing the corporation's lost profits.

The decisive portion of the agreement was a provision which stated:

"* * * Shareholder [defendant] agrees that for a period of one (1) year from the date hereof as to any clients of Corporation as of the date hereof, Shareholder will not directly or indirectly compete with Corporation in the advertising business, * * *."

The corporation's complaint asserted — and the trial court found — that defendant breached this provision by obtaining the entire advertising business of Mortell, Inc., in contravention of the terms of the agreement.

Defendant now argues on appeal that the decision of the trial court was against the manifest weight of the evidence, that the corporation did not have a protectable property interest in the Mortell account, and that the trial court applied an improper measure of damages. We do not address the second and third arguments because we find that there has been no breach of the agreement.

At the outset, we should note that the validity of the agreement has not been questioned nor has the sufficiency of the consideration. Additionally, there is no dispute that Mortell was a client of the plaintiff corporation on the date of the agreement or that defendant did business with Mortell within the one-year period. The narrow question involved, as we perceive it, is whether defendant competed with the plaintiff corporation.

The trial court's order, while declaring a result, provides no legal analysis for the conclusion which is drawn. This is unfortunate, since we are therefore forced to speculate as to the basis for the decision.

• 1 In determining whether defendant breached the contract, it was incumbent upon the trial court to determine what action or inaction was mandated by the contract terms. In general, the meaning to be given to the plain words of a written instrument is a question of law for the court's determination where the parties have attached no unusual or peculiar meaning to the words. (Ahlvers v. Terminal R.R. Association (1975), 31 Ill. App.3d 166, 334 N.E.2d 329.) Where, however, the language leaves the true intent of the writer in doubt so that it is necessary to receive extrinsic evidence, the question becomes one of fact for the trier of fact, in this case the trial court. Standard Steel & Wire Corp. v. Chicago Capital Corp. (1975), 26 Ill. App.3d 915, 326 N.E.2d 33.

While we cannot say with certainty that the trial court felt that the contract was ambiguous, we hold that it was not, and that — given the facts presented — defendant did not breach the contract.

An ambiguous writing is one capable of being understood in more than one sense. (State Security Insurance Co. v. Linton (1978), 67 Ill. App.3d 480, 384 N.E.2d 718.) But a contract is not rendered ambiguous simply because the parties do not agree on its meaning. Harris v. ...


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