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Midwest Television Inc. v. Oloffson

August 24, 1998

MIDWEST TELEVISION, INC., PLAINTIFF-APPELLEE,
v.
GARY L. OLOFFSON, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Lytton delivered the opinion of the court:

IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT

A.D., 1998

Appeal from the Circuit Court of the 9th Judicial Circuit Fulton County, Illinois

No. 97-CH-32

Honorable Charles Wilhelm Judge, Presiding.

Defendant Gary Oloffson left his position as an on-air radio personality with plaintiff Midwest Television, Inc. (Midwest) in Peoria, Illinois, after his employment contract expired. When Oloffson began to work for a new local radio station, Midwest filed a motion seeking enforcement of a restrictive covenant in his contract. The trial court issued a preliminary injunction barring Oloffson from working for the new station for one year. Oloffson appeals. We affirm.

FACTS

In 1987, Oloffson was hired as a morning disk jockey at a FM radio station in Peoria, Illinois, that was owned by Midwest. He performed under the name Gary Olson, which he had begun to use in Rockford, Illinois, two years before taking the job with Midwest. Oloffson worked for Midwest for seven months without a contract before he was offered a two-year contract containing a restrictive covenant. This covenant stated:

"C. For a period of one (1) year after Employee shall no longer be employed by Employer, Employee shall not, directly or indirectly, whether in the capacity of owner, partner, stockholder, employee, agent, consultant or otherwise:

(1) Solicit, divert, or take away or attempt to solicit, divert, or take away any client or customer who has placed commercial advertising with Employer within the twelve (12) full calendar months immediately preceding Employee's termination of employment with Employer; or

(2) Perform any managerial, sales, marketing, programming, transmitting or broadcasting services at another broadcast station or cable programming origination facility which broadcasts or transmits to all or any part of the viewing and listening public to which Employer broadcasts if such managerial, sales, marketing, broadcasting or programming services would mean that employee would be performing services which are the same or of similar kind or are of similar or greater responsibility as those Employee performed for Employer under this Agreement. For purposes of this Agreement, the Illinois counties listed in Attachment A to this Agreement contain the viewing and listening public to which Employee broadcasts. However, Employee may accept employment from an employer whose broadcast or cable facility at which Employee would be employed is located outside a one hundred (100) mile radius from Employer's broadcast tower located in East Peoria, Illinois.

Employee acknowledges that a breach of any of the foregoing duties would result in an irreparable injury to Employer and that Employer would have no adequate remedy at law for such breach, and therefore, Employee agrees that Employer will be entitled to enforce its rights by injunction proceedings restraining Employee from such breaches or threatened breaches without bond."

Oloffson continued to work for Midwest for approximately 10 years, and his contract was renewed several times. He tried to eliminate the restrictive covenant from the renewal agreements, but when he failed to do so, he signed new contracts containing the provision.

Later, Oloffson was assigned to host an afternoon show for Midwest's local AM station. Oloffson performed as an on-air personality, read live commercial spots ("live sells"), and appeared at promotional events for the station, but he was not a member of Midwest's sales staff.

Midwest subsequently asked Oloffson to work on the station's morning show. Oloffson then requested greater compensation because he would be working longer hours. Although his request was rejected, he remained in the job until March 1997.

Prior to the expiration of his contract on June 30, 1997, Oloffson asked to receive his new contract early because he needed the bonuses awarded for completing his prior contract and for signing a new contract. He did not receive the new contract until July 28, 1997.

During the first week of August 1997, Oloffson discussed the possibility of becoming an on-air performer at a new local radio station with its station manager. This station had a different music format from that of Midwest's local stations. Oloffson also consulted with a lawyer about the effect the restrictive covenant would have on this move and was told the provision was unenforceable. Oloffson subsequently accepted a contract with the new station, rejected the contract proffered by Midwest and gave Midwest 30-days notice that he was leaving.

Shortly after leaving Midwest, Oloffson worked for Golf USA, where he had made promotional appearances while with Midwest. On November 2, 1997, he began working as a disk jockey at the new radio station. A few days later, Midwest filed a motion seeking a temporary restraining order, which was granted. Midwest also requested a preliminary injunction, and a hearing on its motion was held in late November.

The trial court found in favor of Midwest and entered a preliminary injunction enjoining Oloffson for one year from performing: "any managerial, sales, marketing, programing, transmitting or broadcasting services at any other radio station *** which broadcasts or transmits to all or any part of the viewing and listening public to which [Midwest] broadcasts if such managerial, sales, marketing, broadcasting or programing services would mean that employee would be performing services which are the same or of similar kind or are of similar or greater responsibility as those employee performed for employer under this agreement."

However, Oloffson was able to "accept employment from an employer whose broadcast or cable facility at which employee would be employed is located outside a 100 mile radius from [Midwest's] broadcast tower located in East Peoria, Illinois."

Oloffson appeals.

DISCUSSI ...


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