{ "id": 5221223, "name": "OFFICE ELECTRONICS, INC., Plaintiff-Appellant, v. JANI L. ADELL, Defendant-Appellee", "name_abbreviation": "Office Electronics, Inc. v. Adell", "decision_date": "1992-04-27", "docket_number": "No. 1\u201490\u20142867", "first_page": "814", "last_page": "820", "citations": [ { "type": "official", "cite": "228 Ill. App. 3d 814" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "222 Ill. App. 3d 413", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5263597 ], "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0413-01" ] }, { "cite": "453 N.E.2d 740", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "742" } ], "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 353", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3481169 ], "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0353-01" ] }, { "cite": "358 N.E.2d 61", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "63" }, { "page": "63" }, { "page": "63-64" }, { "page": "64" } ], "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 148", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2815883 ], "weight": 4, "year": 1983, "pin_cites": [ { "page": "150" }, { "page": "150" }, { "page": "151" }, { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0148-01" ] }, { "cite": "488 N.E.2d 1040", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "1051" } ], "opinion_index": 0 }, { "cite": "140 Ill. App. 3d 592", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3443836 ], "weight": 2, "pin_cites": [ { "page": "279" }, { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0273-01" ] } ], "analysis": { "cardinality": 667, "char_count": 13024, "ocr_confidence": 0.803, "pagerank": { "raw": 7.115646961114132e-08, "percentile": 0.4273276163977128 }, "sha256": "885cfea96409e810fd63acacdae1b708f09ed54d3714f9c7f672d80817aa6dcb", "simhash": "1:17fdf432274592f1", "word_count": 2102 }, "last_updated": "2023-07-14T16:00:32.943049+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "OFFICE ELECTRONICS, INC., Plaintiff-Appellant, v. JANI L. ADELL, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE CAMPBELL\ndelivered the opinion of the court:\nPlaintiff, Office Electronics, Inc. (OEI), appeals from an order of the circuit court of Cook County denying OEI\u2019s motion for preliminary injunction. OEI sought the preliminary injunction to enforce a noncompetition agreement against defendant Jani L. Adell, a former salesperson for OEI. For the following reasons, we affirm the judgment of the trial court.\nThe record on appeal reveals the following facts. On September 14, 1990, plaintiff OEI filed a verified complaint seeking to enjoin defendant Adell from soliciting business from 88 customers listed in an attachment to the complaint. In the complaint, plaintiff identifies itself as a corporation engaged in the manufacture and sale of printing used in data processing, marketing and other business applications. The complaint alleges that on June 10, 1985, plaintiff and defendant allegedly signed a document entitled \u201cEMPLOYMENT AGREEMENT,\u201d which provides in relevant part:\n\u201c7. PROHIBITIONS REGARDING OFFICE ELECTRONICS\u2019 CUSTOMERS AND EMPLOYEES.\n(a) It is understood and agreed by Salesperson that all business relationships and goodwill now existing with respect to customers of Office Electronics to be served by Salesperson hereunder, whether or not created by Salesperson, and all such relationships and goodwill which may hereafter be created or enhanced by Salesperson in the course of employment hereunder, constitute proprietary rights and interests of Office Electronics, and shall inure to the sole benefit of and are and shall at all times remain the sole property of Office Electronics. Accordingly, Salesperson agrees that during the term of this Agreement and for a further period of one year beginning on the termination of this Agreement under any circumstances, he/she will not, as proprietor partner, joint venturer, stockholder, director, officer, trustee, principal, agent, servant, employee, or in any other capacity whatever, directly or indirectly solicit orders from, sell or render services to any customer solicited, sold, or serviced by Salesperson in the course of employment by Office Electronics as a salesperson at any time during the term of this Agreement, with respect to any product or service sold by Office Electronics or any subsidiary or affiliated corporation, nor shall Salesperson directly or indirectly aid or assist any other person, firm, or corporation to do any of the aforesaid acts.\u201d\nThe complaint further alleges that defendant was employed by plaintiff as a sales representative from June 10, 1985, until her voluntary resignation on August 17, 1990. It is also alleged that during that time, defendant serviced a number of OEI accounts in Chicago and its suburbs. After her resignation, defendant allegedly was hired by the Combined Printing Corp., a competing marketer of business forms in the Chicago metropolitan area. Defendant has since contacted customers she serviced at OEI, allegedly in violation of the terms of the employment agreement.\nThese allegations also form the basis of plaintiff\u2019s verified motion for preliminary injunction, which was filed the same day as the initial complaint.\nA \u201cVerified Answer to Complaint\u201d is attached to plaintiff\u2019s brief as exhibit \u201cD.\u201d It appears, however, that this document is not contained in the record on appeal.\nOn October 2, 1990, the trial court held a hearing on the motion for preliminary injunction. The report of proceedings indicates that there was an initial colloquy concerning production of documents. The trial court then stated as follows:\n\u201cTHE COURT: Well, without ruling on the difficulties that this late production causes the defendants, I have not had the opportunity to go deeply into the pleadings in preparation for the hearing on preliminary injunction.\nIt would seem that before I hear evidence on the plaintiff\u2019s protectible business interests in the plaintiff\u2019s customers, I should hear argument on the reasonableness of the restrictive covenant that\u2019s contained in the employment agreement. The reason for that is that if the agreement is overbroad or vauge [sic] it may not be enforced and there\u2019s no need to hear evidence.\u201d\nThe trial court then discussed the law of noncompetitive agreements in Illinois and indicated that the court had reviewed the agreement closely. The trial court then stated:\n\u201cTHE COURT: *** And with that as the basis upon which I invite your inquiry, I would now like to discuss with you, or have you discuss with me, the language \u2018directly or indirectly solicit orders from, sell or render services to any customer solicited, sold or serviced.\u2019 That language is critical.\u201d\nThe trial court then heard argument on the meaning of the restrictive covenant. At one point, in an exchange with plaintiff\u2019s attorney, the trial court stated:\n\u201cTHE COURT: But read your clause, counsel. My focus is that you have a right to protect your customers. You don\u2019t have a right to protect your prospects. This agreement attempts to protect your prospects. This agreement says the employee agrees not to \u2018directly or indirectly solicit orders from,\u2019 leaving the rest blank, \u2018any customer solicited.\u2019\nSo what this agreement does is it not only purports to bar the defendant\u2019s sales to customers who the defendant had sold to while she was engaged with the plaintiff, but it further purports to preclude her from soliciting orders from those she had previously solicited, but had never sold.\u201d\nPlaintiff responded that it interpreted a \u201ccustomer solicited\u201d as a person who had already purchased goods or services from OEI, but was being solicited for additional business, such as for products not previously bought by that customer.\nThe trial court ruled that the covenant was facially invalid due to overbreadth because: (1) it barred defendant from soliciting from those who were never customers of OEI, but who may have been solicited at an earlier time; (2) it barred solicitation of any person who was an OEI customer during defendant\u2019s employment, regardless of whether that person remained an OEI customer; and (3) it applied to all of OEI\u2019s products and services, regardless of whether defendant had ever sold a particular product or service. The trial court entered an order denying the motion for preliminary injunction \u201cfor the reasons stated *** in open court\u201d on October 2, 1990. Plaintiff now appeals.\nWe first discuss the proper standard of review to be employed in this case. In general, the decision to grant or deny preliminary injunctive relief falls within the broad discretion of the trial court; accordingly, such decisions will not be disturbed on appeal absent a clear abuse of that discretion. (Witter v. Buchanan (1985), 132 Ill. App. 3d 273, 279, 476 N.E.2d 1123, 1128.) This standard is applied because a hearing on a preliminary injunction is not an adjudication on the merits; it is only when an order effectively decides the merits that this court examines whether the trial court\u2019s findings are against the manifest weight of the evidence and whether the trial court was legally correct. (See Witter, 132 Ill. App. 3d at 279, 476 N.E.2d at 1128.) The parties in this case both argued that the trial court\u2019s decision is subject to de novo review, but both parties relied on cases involving motions to dismiss, rather than a motion for preliminary injunction.\nWe next turn to the question of whether the trial court erred in denying the motion for preliminary injunction, given the state of the record on appeal. A party seeking preliminary injunctive relief must establish: (1) a certain and clearly ascertainable right needing protection; (2) irreparable injury will occur without injunctive relief; (3) no adequate remedy at law exists; and (4) a probability of success on the merits. (A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 791, 514 N.E.2d 45, 48; McRand, Inc. v. Van Beelen (1985), 138 Ill. App. 3d 1045, 1050, 486 N.E.2d 1306, 1310; Morrison Metalweld Process Corp. v. Valent (1981), 97 Ill. App. 3d 373, 375, 422 N.E.2d 1034, 1036.) Where the basis for the preliminary injunction rests in the complaint, plaintiff is required to allege, with both certainty and precision, specific facts regarding these elements, including that of irreparable harm. (See Illinois Municipal League v. Illinois State Labor Relations Board (1986), 140 Ill. App. 3d 592, 608, 488 N.E.2d 1040, 1051; Whitaker v. Pierce (1976), 44 Ill. App. 3d 148, 150, 358 N.E.2d 61, 63.) However, an evidentiary hearing on a motion for preliminary injunction is generally required where a verified answer is filed denying material allegations in the complaint. Peoples Gas Light & Coke Co. v. City of Chicago (1983), 117 Ill. App. 3d 353, 355, 453 N.E.2d 740, 742.\nOn appeal, no verified answer appears in the record. Plaintiff has attached what purports to be such an answer to its brief and stated at oral argument that it believed the answer had been tendered in open court. Defendant stated that the exclusion of the answer was merely an oversight. Although an attachment to a brief is no substitute for a record, this court may consider the attachment if the parties so stipulate at oral argument. Chicago Title & Trust Co. v. Brooklyn Bagel Boys, Inc. (1991), 222 Ill. App. 3d 413, 417.\nIn this case, the trial court heard the argument of counsel for both parties. The trial court also had before it the verified complaint, including the attachments thereto. These attachments included the agreement at issue, a list of 88 entities to which OEI believed the agreement to apply, and correspondence between OEI and Adell, as well as between Combined Printing Corp. and OEI. In addition, the trial court apparently had before it the verified answer to the complaint. The verified answer, however, is important not only because it raises the issue of overbreadth, but also because it does not deny the basic facts upon which OEI\u2019s complaint is based. In particular, the verified answer admits that defendant signed the agreement attached to the complaint and was employed from June 10, 1985, through August 17, 1990. The answer further admits that defendant became employed by the Combined Printing Corp. in August 1990 and has since contacted customers she serviced at OEI.\nGiven the nature of the verified answer in this case (or its possible absence), we conclude that the trial court\u2019s refusal to hold a full evidentiary hearing was not a clear abuse of discretion. The record on appeal, such as it is, indicates that the parties agreed on the facts which comprised the essence of plaintiff\u2019s complaint. The transcript of proceedings indicates that plaintiff was prepared to show that the 88 entities listed in the attachment to its complaint had all done business with plaintiff through defendant within the past year. However, as plaintiff notes in its brief, the trial court would not have had a problem with restricting defendant from dealing with 88 OEI customers for a period of one year. The transcript further indicates that plaintiff was prepared to show that 95% of defendant\u2019s time was spent in connection with customers of OEI, as opposed to the recruitment of new clients. Nevertheless, the transcript clearly indicates that the trial court\u2019s ruling in this case depended on its interpretation of the covenant as broader than plaintiff\u2019s request as stated at the hearing. It is therefore apparent that the evidence that plaintiff was prepared to introduce would not have affected the outcome in the trial court.\nSince the facts and circumstances presented by the record at this time indicate that the trial court did not clearly abuse its discretion in denying relief based on the facts as set forth in the complaint, it is appropriate for this court to consider whether the motion for preliminary injunction was sufficient. (Whitaker, 44 Ill. App. 3d at 150, 358 N.E.2d at 63.) Even a cursory review of the motion in this case reveals that plaintiff\u2019s allegations concerning irreparable injury and the lack of an adequate legal remedy are merely conclusory and fail to set forth facts with the detail necessary to support the issuance of a preliminary injunction. (Whitaker, 44 Ill. App. 3d at 151, 358 N.E.2d at 63-64.) We stress, as did the Whitaker court, that our sole function on appeal is to review whether the trial court abused its discretion in denying preliminary injunctive relief; we express no opinion on the merits of the case. Whitaker, 44 Ill. App. 3d at 152, 358 N.E.2d at 64.\nFor the foregoing reasons, we affirm the judgment of the circuit court of Cook County.\nAffirmed.\nO\u2019CONNOR and MANNING, JJ., concur.", "type": "majority", "author": "JUSTICE CAMPBELL" } ], "attorneys": [ "Winston & Strawn and Sander D. Levin, P.C., both of Chicago (David S. Acker, Paul P. Biebel, Jr., Caryn S. Mohan, and Jeffrey W. Brend, of counsel), for appellant.", "Griffin & Fadden, Ltd., of Chicago (Bradley B. Falkof, of counsel), for appellee." ], "corrections": "", "head_matter": "OFFICE ELECTRONICS, INC., Plaintiff-Appellant, v. JANI L. ADELL, Defendant-Appellee.\nFirst District (1st Division)\nNo. 1\u201490\u20142867\nOpinion filed April 27, 1992.\nWinston & Strawn and Sander D. Levin, P.C., both of Chicago (David S. Acker, Paul P. Biebel, Jr., Caryn S. Mohan, and Jeffrey W. Brend, of counsel), for appellant.\nGriffin & Fadden, Ltd., of Chicago (Bradley B. Falkof, of counsel), for appellee." }, "file_name": "0814-01", "first_page_order": 834, "last_page_order": 840 }