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09/05/95 AUDIO PROPERTIES v. WILLIAM KOVACH

September 5, 1995

AUDIO PROPERTIES, INC., D/B/A CHICAGO RECORDING COMPANY, PLAINTIFF-APPELLANT,
v.
WILLIAM KOVACH, MICHAEL TOPEL, AND SWELL PICTURES, INC., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ALBERT GREEN, PRESIDING.

The Honorable Justice Braden delivered the opinion of the court: Campbell, P.j., and Buckley, J., concur.

The opinion of the court was delivered by: Braden

JUSTICE BRADEN delivered the opinion of the court:

Plaintiff, Audio Properties, Inc., d/b/a Chicago Recording Company (CRC), appeals from a November 15, 1994, order by the circuit court of Cook County, granting the verified motion of defendant, Swell Pictures, Inc. (Swell Pictures), to disqualify plaintiff's counsel, as well as a November 28, 1994, order denying CRC's motion for preliminary injunction.

We affirm.

The record indicates that CRC and William Kovach (Kovach) entered into an employment agreement on July 15, 1988, under which Kovach was employed as a post-production sound engineer. CRC's primary business was providing post-production audio services for radio, television, slide shows, and other media. Kovach was responsible for recording live voice overs, sound effects and music, which Kovach would marry to video portions of the production. The record indicates that CRC provided Kovach with a dedicated studio designed and customized in part to meet his specific professional requirements.

The employment agreement between Kovach and CRC was for a term of five years, with an automatic one year renewal for each year after 1993, unless either party gave 180 days written notice of its intention to terminate the agreement. The parties' agreement contained an express covenant under which Kovach agreed not to compete with CRC for a period of one year after leaving CRC's employ. The agreement stated in part as follows:

"Kovach shall not *** engage in, or have any interest whatsoever in, the sound recording business, including but not limited to, the production of sound recordings, records and pressings, film, and tape duplication and reproduction, and the providing of sound recording and duplication services *** [Prohibited Services]; provided, however, that the forgoing restrictions shall apply (i) only within a radius of four (4) miles from [CRC's] offices located at 232 East Ohio Street in Chicago, Illinois, and (ii) only if the Prohibited Services are being performed for any person, firm or corporation to whom, to the knowledge of Kovach, sound recording services have been rendered by during the term of Kovach's employment with ."

The record reveals that Kovach gave written notice of his intentionto terminate this employment agreement on or about September 14, 1994, to be effective September 30, 1994. Kovach was subsequently employed as a sound engineer by Swell Pictures, a CRC competitor, allegedly in violation of the express language of the non-compete covenant contained in the parties' agreement. Swell Pictures was located at 455 North City Plaza, Chicago, Illinois, less than four miles from CRC.

On October 18, 1994, CRC filed a verified complaint for injunction and other relief, as well as a motion for preliminary injunction against Kovach, and Swell Pictures, along with Michael Topel as its principal. In its action, CRC sought to enjoin Kovach from breaching the covenant not to compete. Specifically, CRC moved the trial court to enjoin Kovach from working with twenty-four of CRC's existing clients for a period of one year from the date of his resignation. On November 14, 1994, Swell Pictures filed a verified motion to disqualify plaintiff's counsel. On November 15, 1994, the trial court entered an order disqualifying CRC's counsel, William J. McKenna, Jr. and the law firm of Hopkins & Sutter. On November 28, 1994, the trial court conducted an evidentiary hearing and entered an order denying CRC's motion for preliminary injunction.

The first issue to address is whether the trial court erred in denying CRC's motion for preliminary injunction. CRC argues that the trial court erred in determining that it had no legitimate, protectable, business interest, as needed to enforce the restrictive covenants in Kovach's employment agreement.

We begin by noting that a preliminary injunction is a provisional remedy granted to preserve the status quo, pending a hearing on the merits of the case. ( Office Mates 5, North Shore v. Hazen (1992), 234 Ill. App. 3d 557, 599 N.E.2d 1072, 175 Ill. Dec. 58.) A preliminary injunction is an extraordinary remedy used only in situations where an extreme emergency exists and serious harm would result in the absence of an injunction. ( Label Printing v. Pflug (1991), 206 Ill. App. 3d 483, 490, 564 N.E.2d 1382, 1387, 151 Ill. Dec. 720.) A party seeking a preliminary injunction must show that (1) he possesses a clear right or interest needing protection; (2) an inadequate remedy at law; (3) irreparable harm will result if it is not granted; and (4) there is a reasonable likelihood of success on the merits. Office Mates 5. North Shore, 234 Ill. App. 3d at 567, 599 N.E.2d at 1079.

The decision to grant or deny preliminary injunctive relief lies within the sound discretion of the trial court, and a reviewing court's role is limited to determining only whether the trial court abused that discretion. ( Hamer Holding Group, Inc. v. Elmore (1990), 202 Ill. App. 3d 994, 1005, 560 N.E.2d 907, 914, 148 Ill. Dec. 310.) A reviewing court will notreverse the trial court's decision unless that decision is against the manifest weight of the evidence. Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 15, 490 N.E.2d 1302, 1306, 96 Ill. Dec. 97.

CRC argues that it has adequately demonstrated a protectable interest in its client base and, therefore, the trial court erred in refusing to enforce the restrictive ...


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