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Buzz Barton & Associates v. Giannone

OPINION FILED OCTOBER 3, 1985.

BUZZ BARTON & ASSOCIATES, INC., APPELLEE,

v.

CHARLES CANNON GIANNONE ET AL. (CHARLES CANNON GIANNONE, APPELLANT).



Appeal from the Circuit Court of Du Page County, the Hon. Fredrick Henzi, Judge, presiding.

JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

This is a direct appeal from an order of the circuit court of Du Page County, brought pursuant to our Rule 302(a) (94 Ill.2d R. 302(a)). The circuit court found section 11-110 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 11-110) unconstitutional as applied to the facts in the present case.

The present case involves a claim for damages arising out of the wrongful issuance of a preliminary injunction. The preliminary injunction was issued to enforce a restrictive covenant contained in an employment contract. The plaintiff, Buzz Barton & Associates, Inc., is the former employer of the defendant, Charles Cannon Giannone (Giannone). The employment contract between plaintiff and defendant Giannone stated that upon termination of the contract Giannone would:

"[R]efrain from soliciting business from any customers of the Employer, whether or not they were brought to the employer by the employee, for a period of one year, and in a territory within the area of Oak Brook of [sic] the offices of the Employer in Oak Brook; and during that period of time the employee shall not directly or indirectly, as principal, agent or employee, deal with any person, firm or corporation which may solicit business from such clients of the Employer * * *."

The employment relationship ended on May 1, 1981. Immediately thereafter the defendant began working for Bernard Shank Associates, Inc., the co-defendant in this action. Bernard Shank Associates is located in Oak Brook and is a competitor of Buzz Barton & Associates.

On June 3, 1981, Buzz Barton & Associates filed its complaint in the circuit court of Du Page County against Giannone and Bernard Shank Associates. The complaint requested that the defendants be "temporarily and permanently" enjoined from soliciting business from plaintiff's clients for a period of one year from the date of the termination of the employment contract. Plaintiff's complaint also sought to enjoin Bernard Shank Associates from employing Giannone in violation of the employment contract and sought judgment against the defendants for all pecuniary losses proved.

On June 25, 1981, the plaintiff filed a motion for a preliminary injunction seeking to enjoin the defendants from "engaging in the conduct complained of in plaintiff's complaint." The motion specifically requested that Giannone be enjoined from soliciting business from plaintiff's clients until a hearing could be held on the merits. The motion further requested that Bernard Shank Associates be enjoined from employing Giannone to call on and service any clients of the plaintiff which Giannone served while employed by the plaintiff.

The defendants filed a motion, in lieu of an answer, to dismiss the complaint as being insufficient as a matter of law. The parties then engaged in various discovery activities and depositions were taken.

On September 14, 1981, a hearing was held on the defendant's motion to dismiss the complaint and the plaintiff's motion for a preliminary injunction. The defendant's motion to dismiss was heard first and denied. The court then proceeded to a hearing on the motion for a preliminary injunction. Each side presented arguments and called witnesses. After hearing the evidence the judge continued the matter until September 22, 1981, for closing arguments.

On September 22, 1981, the trial judge orally granted the motion for a preliminary injunction. A written order incorporating the judge's oral ruling was signed on October 21, 1981. The preliminary injunction prohibited defendant Giannone from engaging in any business in the area of Oak Brook that was the same or similar to the business of the plaintiff. The injunction also prohibited Giannone from dealing with any person, firm or company that might solicit business from clients of the plaintiff with the purpose of securing their business. The injunction enjoined the defendant from engaging in such activities pending further order of the court, but in no event beyond May 1, 1982. The defendants were granted 28 days within which to plead or answer to the complaint.

The defendants took an interlocutory appeal from the order granting the preliminary injunction (see 87 Ill.2d R. 307). The defendants also filed a petition for a change of judges in the circuit court to have a different judge assigned to hear the underlying action, alleging a personal conflict between the judge and new counsel for defendants. The circuit court, on its own motion, reserved ruling on the petition pending the outcome of the interlocutory appeal.

On June 1, 1982, the appellate court, in a Rule 23 order (87 Ill.2d R. 23), reversed the order granting the preliminary injunction (106 Ill. App.3d 1156). The appellate court found that the circuit court had abused its discretion in granting the preliminary injunction because the plaintiff failed to show that it possessed a clearly ascertained right which needed protection. The plaintiff failed to seek rehearing in the appellate court or leave to appeal to this court and thus the mandate was issued to the circuit court.

Upon receiving the mandate, the circuit court granted the defendant's petition for a change of judge and the matter was assigned to a different judge. The defendants then filed a petition for assessment of damages caused by the wrongful issuance of the preliminary injunction (see Ill. Rev. Stat. 1983, ch. 110, par. 11-110) and a motion to dismiss the underlying complaint (see Ill. Rev. Stat. 1983, ch. 110, par. 2-615) based on the appellate court's holding. The ...


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