Appeal from the Circuit Court of Sangamon County No.99MR13 Honorable Thomas R. Appleton, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Knecht
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
In this interlocutory appeal, plaintiff, Prairie Eye Center, Ltd. (Prairie), seeks reversal of the trial court's order granting in part its motion for a preliminary injunction. Prairie contends it is entitled to complete relief and to force defendant's compliance with the covenant-not-to-compete clause of the parties' employment agreement. We reverse and remand with directions.
Defendant, Patrick J. Butler, is an ophthalmologist who specializes in the treatment of glaucoma. In February 1997, Butler entered an employment agreement with Centrum Eye Center, Ltd. Later that year Centrum Eye Center changed its name to Prairie Eye Center and the parties executed a second identical agreement. For three years prior to his employment with Prairie, Butler maintained a clinical practice at the Southern Illinois University School of Medicine (SIU).
The employment agreement between Butler and Prairie contains the following covenant not to compete:
"Upon the expiration or termination of this Agreement, employee covenants that he will not, for a period of two (2) years after expiration or termination, engage in, be associated with or have a financial interest in any medical practice or ophthalmology practice, either directly or indirectly, as employer, employee, principal agent, independent contractor, consultant, partner, stockholder, creditor in any other capacity, at any location(s) within Sangamon County, Illinois[,] or within ten (10) miles of Hillsboro, Illinois[,] and ten (10) miles of any branch office of Employer. * * * Employee acknowledges that Employer has a valid, [protectible] interest in its medical and ophthalmology practice, and that the duration and geographic scope of this covenant are reasonable to protect that interest."
In December 1998, Butler informed Prairie of his intention to terminate his employment and establish a practice in Springfield, Illinois. Butler opened an office approximately two miles from Prairie's Springfield location.
In January 1999, Prairie filed a complaint in the circuit court seeking declaratory relief, permanent injunctive relief, and preliminary injunctive relief. By its claim Prairie sought to enjoin defendant from (1) practicing medicine/ophthalmology at any location within Sangamon County or within 10 miles of its branch offices in Hillsboro, Girard, Rushville, Beardstown, Lincoln, and Decatur; (2) having any association with, or interest in, a practice in the restricted area; (3) soliciting Prairie's patients; and (4) soliciting Prairie's employees. Prairie also sought reasonable attorney fees and any other relief deemed proper by the court.
Two days later, the trial court entered an order granting the injunction in favor of Prairie except as to patients who had a preexisting professional relationship with defendant. While the court acknowledged that courts have consistently found physician employers have a protectible interest in a relationship with their patients, it went on to find:
"By affidavit, the facts here are somewhat different. Defendant came into his employment relationship with Plaintiff with a number of patients who followed him from the medical school. Under the analysis made of '[protectible] business interest' in the cases above cited, it is difficult to find that the restraint of trade normally disfavored by the law is justified as to those patients. To prohibit patients from treating with 'their' doctor would seem to not just inhibit trade, but more importantly denigrate the relationship of doctor and patient."
In so holding, the trial court relied on Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998), in which the Supreme Court of Illinois held a covenant not to compete unenforceable between a law firm and two departing attorneys. The trial court acknowledged that the Dowd opinion is based on interpretation of Rule 5.6 of the Rules of Professional Conduct (134 Ill. 2d R. 5.6), which applies exclusively to the legal profession. Nevertheless, the trial court relied on the following quote from Dowd: "The rule is designed both to afford clients greater freedom in choosing counsel and to protect lawyers from onerous conditions that would unduly limit their mobility." Dowd, 181 Ill. 2d at 481, 693 N.E.2d at 369. The trial court found "it is inconceivable that public policy is applicable to only one profession." Thus, the trial court granted the injunction in favor of Prairie, but allowed Butler to continue to treat those patients he acquired through his practice at SIU.
In February 1999, after additional briefing and affidavits from both parties, the trial court reaffirmed its ...