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Prairie Eye Center, Ltd. v. Butler

April 16, 2002

PRAIRIE EYE CENTER, LTD., A PROFESSIONAL SERVICE CORPORATION, F/K/A CENTRUM EYE CENTER, LTD., PLAINTIFF-APPELLEE,
v.
PATRICK J. BUTLER, M.D., DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County No. 99MR0013 Honorable Dennis L. Schwartz, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

Released for publication April 18, 2002.

PRAIRIE EYE CENTER, LTD., A PROFESSIONAL SERVICE CORPORATION, F/K/A CENTRUM EYE CENTER, LTD., PLAINTIFF-APPELLEE,
v.
PATRICK J. BUTLER, M.D., DEFENDANT-APPELLANT.

Appeal from Circuit Court of Sangamon County No. 99MR0013 Honorable Dennis L. Schwartz, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

PUBLISHED

 Defendant, Patrick Butler, M.D., appeals a judgment order finding a non-competition agreement in his contract with plaintiff, Prairie Eye Center, Ltd. (Prairie), was valid and enforceable. He also appeals from the entry of a permanent injunction prohibiting him from competing with plaintiff, $1,654,700 damages award to plaintiff, and $164,432.34 attorney- fees award due to his intentional and repeated violations of the covenant not to compete. Defendant argues (1) a covenant not to compete among physicians is unenforceable on public policy grounds; (2) Prairie did not have a sufficient protectible interest in the patients Butler brought with him from his practice prior to being employed by Prairie to justify enforcing the non-competition agreement as to those patients; (3) lost profits awarded to Prairie were inherently speculative and predicated upon assumptions not supported by sufficient evidence; and (4) Prairie was improperly provided with both monetary damages and injunctive relief. We affirm.

I. BACKGROUND

Butler is an ophthalmologist who specializes in the treatment of glaucoma. Prairie is a professional service corporation made up of ophthalmologists and optometrists practicing in Springfield and in surrounding communities. Butler came to Springfield in 1994 and began a clinical practice at the Southern Illinois University School of Medicine (SIU). While at SIU, Butler practiced with other physicians, including Dr. Robert Posegate and optometrist Larry Williams. Posegate became a personal as well as professional friend of Butler.

In February 1997, Butler entered an employment agreement with Centrum Eye Center, Ltd., which was solely owned by Dr. Sandra Yeh. Later that year, Centrum Eye Center changed its name to Prairie Eye Center and the parties executed a second identical agreement. Butler began his employment with Prairie in July 1997.

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 an 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 agrees that upon his breach or violation of the foregoing provisions of this paragraph, employer shall be entitled, as a matter of right, to obtain relief in any court of competent jurisdiction enjoining such breach or violations, and recover from Employee all its attorneys' fees in addition to all other remedies provided at law, in equity or under this Agreement. 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 the event any violation hereunder is determined, the period of non-competition shall be extended by a period of time equal to that period beginning when such violation commenced and ending when the activities constituting such violation shall have terminated."

On December 1, 1998, Yeh heard Posegate, who was leaving SIU to establish a private medical practice in Springfield with Williams, had been telling others in the Springfield medical community that Butler would be joining his practice in the near future. The next day, December 2, Yeh held a meeting with Butler to discuss his performance evaluation and his contractually provided for buy-in to Prairie. Butler told her he had no plans to leave Prairie. Yeh told Butler she would have her attorney draw up a confidentiality agreement and have a valuation of the practice prepared.

On December 9, Butler's attorney hand-delivered a letter to Yeh informing her Butler was terminating his employment with Prairie effective February 12, 1999.

On January 6, 1999, Posegate and Williams opened an office in Springfield approximately two miles from Prairie. They called their practice Sangamon Eye Associates (Sangamon). On January 12, Butler started telling his patients at Prairie he would be leaving and they should call Sangamon to make follow-up appointments with him. Butler also had business cards printed by that time indicating he would have office space at the same address as Sangamon and including his telephone number, also the same as that of Sangamon.

On January 12, Prairie filed the instant complaint in the circuit court seeking declaratory relief, permanent injunctive relief, and preliminary injunctive relief.

Two days later, the trial court entered an order granting a preliminary injunction in favor of Prairie except as to patients who had a pre-existing professional relationship with defendant, i.e., had been his patients at SIU. The trial court relied on Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 481, 693 N.E.2d 358, 369 (1998), in which the Supreme Court of Illinois held a covenant not to compete unenforceable between a law firm and two departing attorneys. In February, after additional briefing and affidavits from both parties, the trial court reaffirmed its January order. Prairie appealed and this court reversed with directions to the trial court to enter a preliminary injunction enforcing the covenant in its entirety. Prairie Eye Center, Ltd. v. Butler, 305 Ill. App. 3d 442, 713 N.E.2d 610 (1999), appeal denied, 185 Ill. 2d 665, 720 N.E.2d 1105 (1999) (hereinafter Prairie). On June 11, 1999, the mandate of this court issued.

The trial court then issued a modified preliminary injunction on July 14 ...


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