Abbott-Interfast Corp. v. Harkabus

619 N.E.2d 1337, 250 Ill. App. 3d 13, 189 Ill. Dec. 288
Appellate Court of Illinois·Decided August 30, 1993·No. 2-92-1029·Published·Cited by 55 cases

Opinion

619 N.E.2d 1337 (1993)
250 Ill. App.3d 13
189 Ill.Dec. 288

ABBOTT-INTERFAST CORPORATION, Plaintiff-Appellant,
v.
Frank HARKABUS, Defendant-Appellee.

No. 2-92-1029.

Appellate Court of Illinois, Second District.

August 30, 1993.

*1339 James A. Calabrese, Wheeling, for Abbott-Interfast Corp.

Leahy, Eisenberg & Fraenkel, Ltd., Daniel J. Leahy, Leahy, Eisenberg & Fraenkel, Ltd., Chicago, for Frank Harkabus.

Justice DOYLE delivered the opinion of the court:

Plaintiff, Abbott-Interfast Corporation (Abbott), sued defendant, Frank Harkabus, a former employee, for violating a noncompetition agreement. The trial court granted Harkabus' motion for judgment on the pleadings on the ground that the noncompetition agreement was an unenforceable restraint on trade. In particular, the trial court found that the nonsolicitation clause in the agreement was overly broad because it contained no geographic limitations. The trial court refused to sever that provision from the remainder of the agreement. Abbott appeals.

According to Abbott's complaint and the supporting documentation, Abbott manufactured various types of fasteners. Abbott employed Harkabus as a salesman. In 1977, Abbott and Harkabus entered into an employment agreement (Agreement) which contained the following provisions relevant to this case:

"2. Agreement Not To Solicit. During the term of the Employee's employment with Employer and for a period of one (1) year after his employment with Employer shall terminate for any reason whatsoever, Employee shall not, except for and on behalf of Employer, and upon Employer's request, directly or indirectly on his own account, or as an employee, consultant, partner, joint venturer, owner, officer, director, or stockholder of any other person, firm, partnership, corporation, or other entity or in any other capacity, directly or indirectly, canvass, solicit, divert, take away, accept orders, or interfere with any of the business, customers, trade, or patronage of Employer, wherever located, as same may exist as of the of termination of Employee's employment, as aforesaid.
3. Maintenance of Trade Secrets and Confidential Information. Employee shall use his best efforts and the utmost diligence to guard and protect all trade secrets and confidential information of Employer. Employee shall not, either during or after the period of his employment by Employer, in whole or in part, use for himself or any other person, firm, partnership, corporation, association or entity, the identity of Employer's customers or customer lists, methods of operation, obtaining business, pricing, processes, techniques, systems, formulas, any information contained in the `customer history book' furnished by Employer to Employee, or other trade secrets or confidential information relating to Employer's business. In the event *1340 Employee's employment by Employer shall terminate for any reason whatsoever, he shall immediately return to Employer originals and any copies of all catalogs, price books, `customer history books', designs, drawings, estimates, quotations, customer lists, records and papers and all other matters or documents of whatever nature which bears Employer's secrets or confidential information, and which are in Employee's possession or in his control. Employee acknowledges and agrees that the memorization or mental retention by Employee of the aforesaid secret or confidential information shall be deemed to be a `taking' hereunder, and thus subject to the restrictions contained in this Agreement.
4. Remedies. * * *
* * * * * *
[T]o the extent any provision hereof is deemed unenforceable by virtue of its scope in terms of area or length of time, buy [sic] may be made enforceable by limitations thereon, Employee agrees that the same shall be enforceable to the fullest extent permissible under the law and public policies applied in such jurisdiction in which enforcement is sought.
* * * * * *
8. Severability. The invalidity, illegality, or unenforceability of any provision hereof shall not in any way affect, impair, invalidate or render unenforceable this Agreement or any other provision hereof."

On December 30, 1991, Harkabus voluntarily terminated his employment with Abbott.

Abbott's complaint alleged that Harkabus had breached the Agreement by (1) soliciting, accepting orders and interfering with Abbott's customers; (2) wrongfully utilizing Abbott's trade secrets; and (3) wrongfully making and retaining lists of Abbott's customers. Abbott further alleged that Harkabus wrongfully used Abbott's trade secret lists in order to obtain customers for himself in violation of the agreement as well as the Illinois Trade Secrets Act (765 ILCS 1065/1 et seq. (West 1992)). Abbott asked for damages as well as injunctive relief.

Harkabus moved for judgment on the pleadings under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)). According to Harkabus, paragraph 2 of the agreement was unenforceable because it lacked geographic limitations and would prevent him "from engaging in any business whether directly or indirectly which would compete with" Abbott. On July 13, 1992, the trial court granted, by letter, Harkabus' motion for judgment on the pleadings, subject to the preparation by Harkabus' counsel of a written order. On July 27, 1992, Abbott moved that the court sever any unenforceable provisions in the agreement from those which were enforceable and grant judgment only as to those provisions which were unenforceable. On July 31, 1992, the trial court entered an order, prepared by Harkabus' counsel, granting Harkabus' motion for judgment on the pleadings, finding that the entire agreement was "void as being against public policy in a restrain of trade [sic]." Abbott appeals this order.

The grant of a motion under section 2-615 is appropriate only where plaintiff's complaint is legally insufficient such that plaintiff can prove no set of facts that would entitle it to relief. (Campbell v. A. C. Equipment Services Corp. (1993), 242 Ill.App.3d 707, 711, 182 Ill.Dec. 876, 610 N.E.2d 745.) We must accept as true all well-pleaded facts in plaintiff's complaint and determine whether plaintiff has set forth a cause of action on which relief may be granted. Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill.2d 183, 137 Ill.Dec. 36, 545 N.E.2d 689; Geise v. Phoenix Co. of Chicago, Inc. (1993), 246 Ill.App.3d 441, 445, 186 Ill.Dec. 122, 615 N.E.2d 1179.

"Enforceability of a restrictive covenant in an employment contract is dependent on whether, given the particular facts of the case, the restraints imposed thereby are reasonably necessary for the protection of the employer's business from unfair or improper competition." (Emphasis added.) (Arpac Corp. v. Murray *1341 (1992), 226 Ill.App.3d 65, 75, 168 Ill.Dec. 240, 589

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Abbott-Interfast Corp. v. Harkabus, 619 N.E.2d 1337, 250 Ill. App. 3d 13, 189 Ill. Dec. 288 (Ill. Ct. App. 1993).

619 N.E.2d 1337 (Abbott-Interfast Corp. v. Harkabus) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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