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Cincinnati Tool Steel Co. v. Breed

OPINION FILED AUGUST 14, 1985.

CINCINNATI TOOL STEEL COMPANY, PLAINTIFF-APPELLANT,

v.

PATRICIA BREED, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Winnebago County; the Hon. John E. Sype, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Plaintiff Cincinnati Tool Steel Company appeals from an order of the circuit court of Winnebago County which entered judgment in favor of defendant Patricia Breed, a former employee of plaintiff, at the close of plaintiff's case. The sole question presented by this appeal is whether the trial court's denial of plaintiff's application for an injunction constitutes an abuse of discretion. Because we conclude the trial court's decision does not amount to an abuse of discretion, we affirm.

Plaintiff is a distributor of tool and die steels primarily to customers in Illinois, Wisconsin and Ohio, with headquarters in Rockford, Illinois, and a division in Elk Grove Village, Illinois. Ronald Cincinnati is president and owner of plaintiff, Ken Klehr is vice-president, and defendant is a former employee of plaintiff. Cincinnati, Klehr and defendant were the only witnesses to testify in the trial court.

Defendant began work with plaintiff in 1978 as a typist. She later held the positions of receptionist, sales secretary, and sales coordinator. In October of 1980, she became purchasing agent and in July of 1981, she became an inside sales person. In November of 1982 defendant was promoted to office manager/sales manager.

Prior to July 28, 1983, defendant's employment was without a written contract, but on that date defendant executed a written employment agreement with plaintiff which by its terms extended for six months from the date of the agreement. The employment agreement was admitted into evidence as plaintiff's exhibit No. 4.

On approximately June 21, 1984, defendant had a discussion with a friend and neighbor, Barry Bennett, who informed her that a competitor of plaintiff, J. Rubin & Company (Rubin), might be interested in hiring her. Bennett told defendant that in a recent call to a Mr. Schappert, an employee of Rubin, he had mentioned to Schappert that he knew an inside sales person who was seeking different employment. Defendant denied asking Bennett to uncover employment opportunities on her behalf.

Defendant sent a resume to Schappert with a cover letter on or about June 25, 1984, both of which were introduced as plaintiff's exhibit No. 2. On June 28, 1984, after a luncheon meeting with Schappert and a tour of the Rubin premises, defendant accepted a job with Rubin as an inside sales person. She returned to plaintiff that day, met with Cincinnati and resigned. Defendant offered to give two weeks' notice, but Cincinnati upon learning that defendant intended to work for a competitor asked her to leave immediately. Defendant then organized the paperwork on her desk, and distributed it to other employees.

Later that day, defendant met again with Cincinnati, this time with Klehr also present. During this conversation, Cincinnati told defendant that she was still under contract and if she accepted this job, plaintiff would seek an injunction.

Defendant began work for Rubin the following Monday, July 2, 1984. On that same day, plaintiff filed its complaint and motion for temporary restraining order (TRO). Count I sought to enjoin defendant from disclosing confidential information apparently based upon common law, fiduciary duty principles. Count II sought similar relief based upon the employment contract. Count III sought to prohibit defendant from working for Rubin or any other competitor and from soliciting any of plaintiff's customers with whom defendant had contact during her employment with plaintiff. That same morning, the court issued a TRO without notice to defendant, enjoining her from contacting or soliciting those customers of plaintiff for which she was responsible or with whom she had had any contact during her employment with plaintiff and from disclosing or using any trade secrets, technical data or know-how or any other proprietary information belonging to plaintiff. The TRO and plaintiff's motion for a preliminary injunction were extended by stipulation to July 23, 1984, and were thereafter extended until August 15, 1984. On that date, after hearing the testimony of defendant as an adverse witness, the trial court modified the TRO by dissolving the injunction prohibiting defendant from making contact with customers of plaintiff.

On August 17, 1984, plaintiff filed an emergency motion to reinstate the TRO which the trial court denied. The trial resumed on October 1, 1984. At the close of plaintiff's case in chief, the trial court granted defendant's motion for judgment, dissolved the remaining TRO which had prohibited defendant from disclosing information and denied the motion for a preliminary injunction. Plaintiff thereafter filed a timely interlocutory appeal.

• 1 Prior to resolving the merits of this appeal, we must identify the precise relief which plaintiff has requested this court to grant. Plaintiff's notice of appeal specified that it appealed from the order "granting Defendant's Motion for Judgment, dissolving the Temporary Restraining Order, and denying Plaintiff's application for a Preliminary injuncion [sic] entered on October 15, 1984." (Emphasis added.) The portion of the TRO which had prohibited defendant from soliciting plaintiff's customers had been dissolved by the trial court on August 15, 1984, and thus, the propriety of that order of the trial court apparently is not raised in this appeal. The relief sought by plaintiff in its initial brief to this court confirms that it did not appeal the trial court's order dissolving the TRO of August 15, 1984. In the "Conclusion" portion of its brief, plaintiff requested that:

"[T]his Court reverse and remand the cause for further proceedings and that the Temporary Restraining Order heretofore entered be reinstated forthwith by this Court. Since it has been almost six months from Defendant's termination on June 28, 1984, Plaintiff recognizes that the issue of whether Defendant should be restrained from contacting customers will probably be moot by the time of decision. Plaintiff urges that the Temporary Restraining Order regarding nondisclosure of confidential information be reinstated."

Supreme Court Rule 341(e)(8) (87 Ill.2d R. 341(e)(8)) provides that the initial appellate brief shall contain a "Conclusion" stating the precise relief sought. By the wording of its own prayer for relief, plaintiff requested only that the TRO prohibiting disclosure of confidential information be reinstated and did not request that the TRO prohibiting solicitation of customers be reinstated. Plaintiff apparently elected not to seek the latter relief because as he qualifiedly admits, that issue would be moot prior to this court's resolution of its appeal. Because of plaintiff's limited prayer for relief, this court need not consider the arguments in the parties' briefs regarding the enforceability of the covenant not to compete. By its own language, that covenant only restricted defendant in her solicitation of plaintiff's customers, and plaintiff has conceded that this issue is now moot.

• 2 In order to obtain a preliminary injunction prohibiting defendant's disclosure of confidential information, plaintiff was required to establish it possessed a certain and clearly ascertainable right which needed protection, it would suffer irreparable injury without the protection of an injunction, no adequate remedy at law existed for its injuries, and it would likely be successful on the merits. (Midwest Micro Media, Inc. v. Machotka (1979), 76 Ill. App.3d 698, 702, 395 N.E.2d 188, 191.) The trial court is vested with a large measure of discretion in the allowance or denial of a preliminary injunction, and its determination will not be disturbed absent the showing of the abuse of that discretion. Hayden's Sport Center, Inc. v. Johnson (1982), 109 Ill. App.3d 1140, 441 N.E.2d 927.

• 3 These four elements necessary for a preliminary injunction are conjunctive. Prior to discussing the other elements, certain of plaintiff's allegations can be disposed of on the basis that plaintiff has failed to establish the element of irreparable harm. In its application for a preliminary injunction, plaintiff alleges on information and belief that defendant secretly carried off from its premises originals or copies of cost data, pricing lists and customer lists. Defendant at the hearing denied appropriating any documents. This court in Smith Oil Corp. v. Viking Chemical Co. (1984), 127 Ill. App.3d 423, 468 N.E.2d 797, concluded irreparable harm had not been shown where the former employees expressly denied taking any documents from their former employer. In Smith Oil, this court stated the plaintiff had made a showing that ...


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