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10/21/97 BLOOMINGTON UROLOGICAL ASSOCIATES v.

October 21, 1997

BLOOMINGTON UROLOGICAL ASSOCIATES, SC, PLAINTIFF-APPELLEE,
v.
BENNETT SCAGLIA, M.D., DEFENDANT-APPELLANT.



Appeal from Circuit Court of McLean County. No. 96L128. Honorable W. Charles Witte, Judge Presiding.

Released for Publication November 20, 1997.

Honorable Robert J. Steigmann, P.j., Honorable Robert W. Cook, J. - Concur, Honorable John T. McCullough, J. - Dissent. Justice Steigmann delivered the opinion of the court.

The opinion of the court was delivered by: Steigmann

PRESIDING JUSTICE STEIGMANN delivered the opinion of the court:

In September 1996, the trial court entered an agreed order between defendant, Bennett Scaglia, M.D., and plaintiff, Bloomington Urological Associates, S. Ct. (Bloomington Urological), respecting a covenant not to compete. In December 1996, the court found Scaglia in indirect civil contempt for violating the agreed order. Scaglia appeals, arguing that (1) the court's finding of contempt was against the manifest weight of the evidence; and (2) the court improperly altered the terms of the agreed order after finding him in contempt. Because we agree with Scaglia's first argument, we reverse.

I. BACKGROUND

In May 1994, Scaglia and Peoria Urological Associates, S. Ct. (Peoria Urological), entered into an employment agreement, and in June 1996, Peoria Urological assigned the agreement to Bloomington Urological. Section 5.2(d) of the employment agreement provided that upon termination of his employment, Scaglia would not "engage in the business" from any office located within a 50-mile radius of any Bloomington Urological office for a 12-month period. Section I.A. of the employment agreement defined "the 'business'" as "the provision of medical services."

Scaglia subsequently resigned from Bloomington Urological, and in August 1996, Bloomington Urological filed a complaint for declaratory judgment and motions for injunctive relief and a temporary restraining order (TRO) arising from Bloomington Urological's claim that Scaglia was violating the covenant not to compete. The trial court entered a TRO, and in August 1996, the court denied Scaglia's motion to dissolve it. On September 6, 1996 (prior to the hearing on Bloomington Urological's request for injunctive relief), the parties reached an agreement, and the court entered an agreed order. The agreed order provided, in relevant part, that Scaglia "shall not be involved in the business of providing urological medicine services within a 50-mile radius of Bloomington, Illinois, from this date until June 30, 1997." The agreed order also dismissed the underlying complaint without prejudice to the right of either party to pursue a cause of action arising from breach of the employment contract or violation of the agreed order.

In October 1996, Bloomington Urological filed a motion for an order to show cause why Scaglia should not be found in violation of the agreed order, together with a motion that the trial court reinstate the underlying cause dismissed pursuant to the agreed order. At the October and December 1996 hearings on the motion, the evidence showed the following. Scaglia testified that his medical office is located in a time-share office in Ottawa, Illinois, and is staffed Monday and Tuesday mornings, and all day on Thursday. On Wednesdays and Fridays, at least one nurse works out of Scaglia's home in Bloomington, Illinois. While working at his home, Scaglia's nurses (1) organize and prepare patients' charts, (2) check on patients' status and laboratory work, (3) "check on scheduling of patients for surgical procedures," (4) perform other clerical work, such as typing letters, and (5) sometimes call in prescriptions after consulting with him.

Scaglia's home office has two telephone lines and a fax line listed under "Bennett Scaglia, M.D.," and calls to the Ottawa office are automatically forwarded to his home office when the Ottawa office is not staffed. Most of his medical practice-related mail comes to his home office. Scaglia stated that he is rarely at his home office. He occasionally receives phone calls at home from existing patients who have treatment-related questions, and he sometimes calls in prescriptions from his home. Scaglia further stated that he does not have an examination room in his home office, and he has never seen a patient at his home for "hands-on medical care" or any other kind of meeting.

Scaglia's wife, Rose, testified that Scaglia maintained an office in their home "as a central answering service." She also stated that various patient records were transmitted over the home fax line, and the billing for Scaglia's practice is handled from the home office.

Scaglia's nurses testified that while working at his home office, they scheduled surgery and outpatient procedures, handled billing, and talked with current patients about their medications.

At the conclusion of the hearing, the trial court found that Scaglia violated paragraph 1 of the agreed order that provided that he "shall not be involved in the business of providing urological medicine services within a 50-mile radius of Bloomington, Illinois, from this date until June 30, 1997." The court subsequently entered a written order finding Scaglia in indirect civil contempt of court for violating paragraph 1 of the agreed order.

II. ANALYSIS

Initially, we address this court's entry of a rule to show cause why the appeal should not be dismissed for lack of an appealable order. In his response to the rule to show cause, Scaglia contends that this court has jurisdiction to consider the trial court's order under Supreme Court Rule 307(a)(1), which permits ...


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