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01/27/87 Kenneth R. Hoover, v. Kent R. Crippen Et Al.

January 27, 1987

KENNETH R. HOOVER, PLAINTIFF-APPELLEE

v.

KENT R. CRIPPEN ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

503 N.E.2d 848, 151 Ill. App. 3d 864, 105 Ill. Dec. 8 1987.IL.64

Appeal from the Circuit Court of Rock Island County; the Hon. David DeDoncker, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. BARRY and STOUDER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The trial court granted the preliminary injunction requested by the plaintiff, Kenneth R. Hoover, and denied the motion filed by the defendants, Kent R. Crippen, Gary K. Reid and Kenneth E. Bowen, all of whom are certified public accountants, to dissolve the preliminary injunction. The defendants appeal. We affirm.

On July 25, 1986, the defendants notified the plaintiff that they intended to withdraw from the public accounting partnership of Crippen & Hoover and to dissolve the partnership. On August 28, 1986, the plaintiff filed his "Motion for Preliminary Injunction," and notified the defendants that a hearing on his motion would be conducted at 9 a.m. on August 29, 1986. The motion's first paragraph requested entry of a temporary restraining order pursuant to section 11-101 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 11-101.) Its last paragraph referred to the issuance of a preliminary injunction.

In his motion, the plaintiff asked the court to enjoin the defendants from telling anyone that the plaintiff had retired and from using or advertising the past or present telephone numbers of Crippen & Hoover. The plaintiff further asked the court to enjoin the defendants from denying him access to a list of the names and addresses of all clients of Crippen & Hoover since October 1, 1983, so that he could notify clients of the dissolution of the partnership. Alternatively, if a joint dissolution announcement were to be mailed to the clients, the plaintiff asked the court to determine the contents of the announcement and allocate the cost. Finally, the plaintiff asked the court to enjoin the defendants from interfering with the immediate delivery of a client's complete file to any client providing a written designation of the plaintiff as his or her accountant.

In support of his motion, the plaintiff incorporated his complaint for dissolution of the partnership and attached a signed affidavit. The complaint alleged, inter alia, that the partnership owned the following: valuable leases on the premises it occupied; a valuable supply of office equipment and furnishings; valuable goodwill; and large amounts of work in progress, accounts receivable and undivided profit. The affidavit alleged, inter alia, that substantial disputes had arisen between the plaintiff and the defendants over the liquidation of the partnership; that the defendants were continuing to use and advertise the telephone number and address for Crippen & Hoover, both of which had great value in attracting and keeping clients; that there was an immediate deadline for submission of listings for the next year's telephone directory and yellow pages and that unless prohibited by the court the defendants would continue listing the telephone numbers and address of Crippen & Hoover as their own; that the defendants had refused to agree that all of the clients of Crippen & Hoover would be notified about the dissolution of the partnership; that past and present clients of Crippen & Hoover who desired to have the plaintiff handle matters for them had been delayed and otherwise experienced difficulties in obtaining their files from the defendants; and that various persons, including clients of Crippen & Hoover, had told the plaintiff that the defendants had stated that the plaintiff had retired.

At the August 29 hearing, with two of the defendants and their attorney present, the plaintiff moved to amend his motion so that the first paragraph would request the entry of a preliminary injunction pursuant to section 11-102 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 11-102.) The trial court allowed the amendment.

No testimony but only argument was given during the hearing. Following the hearing, the court entered a preliminary injunction ordering the parties to prepare and mail within 10 days a letter notifying Crippen & Hoover's clients during the last 12 months that the partnership was dissolving. Further, the injunction barred all of the parties from using existing telephone numbers and ordered that for 30 days all calls to the numbers would be taken by a third-party answering service and directed to the proper party. Finally, the court ordered the defendants to give any client, upon written request, his or her complete file.

On September 5, 1986, the defendants filed a motion to dissolve the preliminary injunction. Following a hearing, the trial court denied the motion. The defendants then filed the instant appeal.

On appeal, the defendants first argue that the trial court erred in granting the preliminary injunction because the plaintiff did not clearly establish that there was great necessity and extreme urgency for the requested relief.

The party seeking a preliminary injunction must establish by a preponderance of the evidence that he has no adequate remedy at law and will be irreparably injured if the injunction is not granted; that the threatened injury to him will be immediate, certain and great if the injunction is denied, while the loss or inconvenience to the opposing party will be comparatively small and insignificant if it is granted; that he has a reasonable likelihood of prevailing on the merits of the case; and that granting the preliminary injunction will not have an injurious effect upon the general public. (Illinois Housing Development Authority v. Arbor Trails Development (1980), 84 Ill. App. 3d 97, 404 N.E.2d 1097.) The applicant for a preliminary injunction need not make out a case which will entitle him to the ultimate relief he seeks, but need raise only a fair question as to the existence of the right claimed, making it appear advisable that the positions of the parties should remain the same until the court has an opportunity to consider the case on its merits. (Shappert v. Roettger (1976), 36 Ill. App. 3d 452, 343 N.E.2d 695.) For purposes of entitlement to a preliminary injunction, the loss of customers and sales and the threat of continuation of such losses to a legitimate business interest are sufficient to show that the business will suffer irreparable injury, with no adequate remedy at law, unless protected by the court. (Eagle Books, Inc. v. Jones (1985), ...


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