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08/03/88 Geneva Hospital Supply, v. Drusilla Sanberg Et Al.

August 3, 1988

GENEVA HOSPITAL SUPPLY, INC., PLAINTIFF-APPELLANT

v.

DRUSILLA SANBERG ET AL., DEFENDANTS-APPELLEES. -- GENEVA HOSPITAL SUPPLY, INC., PLAINTIFF-APPELLEE,

v.

GINDERS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

HOSPITAL SUPPLY COMPANY, Defendant-Appellant

(Drusilla Sanberg, Defendant)

527 N.E.2d 611, 172 Ill. App. 3d 960, 123 Ill. Dec. 148 1988.IL.1207

Appeal from the Circuit Court of Kane County; the Hon. Michael J. Colwell, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. WOODWARD and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

This consolidated appeal arises from plaintiff Geneva Hospital Supply, Inc.'s (Geneva's) action against its former employee, defendant Drusilla Sanberg (Sanberg), and her new employer, defendant Ginders Hospital Supply Co. (Ginders). Appeals from three orders of the circuit court of Kane County have been consolidated in this court. In No. 2-87-0860, Geneva appeals from an order denying a preliminary injunction. In No. 2-87-1041, Geneva appeals from an order dismissing with prejudice Geneva's complaint. In No. 2-87-1040, Ginders appeals from an order denying its motion for sanctions under section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-611).

Geneva, Ginders, and several other companies are competitors in the business of selling medical supplies and equipment to medical doctors, clinics, and other customers. They do not manufacture any of the products they sell, obtaining those products from the manufacturers. They are not the exclusive distributors of any of the products they sell, nor, except in rare cases, are they the exclusive suppliers of the medical supplies and equipment for any of their customers. Sanberg worked for Geneva as a sales representative between 1984 and May 7, 1987. On March 6, 1985, Geneva had Sanberg sign a document entitled "Employment Non-Compete Agreement." If she had refused to sign it, Geneva would have fired Sanberg. After Sanberg's resignation on May 7, 1987, she worked for Ginders as a sales representative.

Geneva filed a nine-count complaint seeking various forms of relief against Sanberg and Ginders, essentially concerning Sanberg's dealings with customers of Geneva while still employed by Geneva and in her new position as sales representative for Ginders. One of the counts was based upon breach of the "Employment Non-Compete Agreement," and the other counts were not. The same day the complaint was filed, Geneva also moved for the entry of a preliminary injunction:

"A. Enjoining [Sanberg] from directly or indirectly, for herself or any other entity, soliciting, diverting, taking away or attempting to take away, any of the customers of [Geneva].

B. Enjoining [Sanberg and Ginders] from conducting any business with any customers solicited by [Sanberg] during her employment with [Geneva].

C. Directing [Sanberg and Ginders] to render a full and complete accounting of the profits from dealings with clients and former clients of [Geneva], including but not limited to, Drs. Fredrickson, Schewmake and Lipinski.

D. Imposing a constructive trust on the profits and commissions which are and will come into the hands ...


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