Millard Maintenance Service Co. v. Bernero

566 N.E.2d 379, 207 Ill. App. 3d 736, 152 Ill. Dec. 692, 1990 Ill. App. LEXIS 1897
CourtAppellate Court of Illinois
DecidedDecember 20, 1990
Docket1-90-0155
StatusPublished
Cited by53 cases

This text of 566 N.E.2d 379 (Millard Maintenance Service Co. v. Bernero) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Millard Maintenance Service Co. v. Bernero, 566 N.E.2d 379, 207 Ill. App. 3d 736, 152 Ill. Dec. 692, 1990 Ill. App. LEXIS 1897 (Ill. Ct. App. 1990).

Opinion

JUSTICE JOHNSON

delivered the opinion of the court:

After an evidentiary hearing, Judge Thomas J. O’Brien entered a preliminary injunction on December 18, 1989, enjoining defendant, George Bernero, from using or disclosing certain confidential information belonging to plaintiff, and from contacting or soliciting plaintiff’s customers. However, defendant was not prohibited from seeking contracts with parties who were not plaintiff’s current customers or who were not serviced by plaintiff on the day he left plaintiff’s employ. This is an interlocutory appeal brought pursuant to Supreme Court Rule 307(a) (107 Ill. 2d R. 307(a)).

On appeal, defendant first contends that the trial court’s grant of injunctive relief was against the manifest weight of the evidence for the following reasons: (1) the restrictive covenant was unenforceable for lack of consideration; (2) plaintiff failed to demonstrate a protectable interest in its pricing formula; (3) plaintiff failed to demonstrate a protectable interest in its relationship with its customers; and (4) the court erred in precluding testimony seeking to elicit information regarding the alleged unique character of plaintiff’s pricing methods. Second, defendant contends that the injunction was overly broad, and failed to meet the requirements for a temporary restraining order. Ill. Rev. Stat. 1989, ch. 110, par. 11 — 101.

Background

Plaintiff, Millard Maintenance Service Co. (hereinafter Millard), is a janitorial contractor that services commercial buildings in downtown Chicago and the suburbs. Millard is one of eight major maintenance service companies in the Chicago area. Millard services approximately 125 buildings. Its customers are the owners and/or managers of these buildings. Roughly 40 of Millard’s customers are located in downtown Chicago, while approximately 85 clients are located in the suburbs. Both plaintiff and defendant agree that the maintenance service industry is highly competitive.

Defendant, George Bernero, is a former employee of Millard and is currently an employee of Executive Building Maintenance (hereinafter EBM). Mr. Bernero worked for Millard from September 1980 through January 26, 1989. Mr. Bernero had no previous experience in the building maintenance field prior to working for Millard. He left Millard as a senior account executive. During the course of his employ, Mr. Bernero signed three post-employment anticompetitive agreements with Millard on September 30, 1980, January 1, 1981, and November 21, 1985. The agreement signed in November of 1985 is the subject of this appeal. The relevant portion of the agreement reads as follows:

“10. Competition. For a period of two years following termination of his employment, Employee shall not, without the Employer’s prior written agreement, directly or indirectly, own, manage, operate, control, be employed by, participate in, or be connected in any manner with the ownership, management, operation, or control of any business (the ‘Competing Business’) of the type and character engaged in by the Employer at the time of such termination provided, however, that the foregoing shall apply only if the Competing Business satisfies either of the following standards:
(a) The Competing Business operates in the Illinois Counties of
(i) Cook,
(ii) Lake, or
(iii) McHenry; or
(b) The Competing Business, directly or indirectly, solicits, diverts, takes away or attempts to solicit, divert, or take away customers of the Employer, which, during the year immediately prior to Employee’s termination of employment contracted for service from the Employer, or seeks to cause any of such customers to refrain form contracting with the Employer or assists any other person, firm, or corporation to do any of the above.”

Millard alleges that Mr. Bernero breached his employment agreement after leaving Millard by disclosing confidential and proprietary information to EBM. For example, Mr. Bernero submitted a bid on behalf of EBM to provide janitorial services for Boulevard Bank. Prior to leaving Millard, Mr. Bernero submitted a bid to clean the same building. In addition, Mr. Bernero contacted CNA, Hamilton Partners, and Quantum Chemicals, three of Millard’s customers, to solicit their business on behalf of EBM.

Millard initiated this present action by seeking injunctive relief to prevent Mr. Bernero from contacting customers and from disclosing confidential information pursuant to the employment agreement. On September 14, 1989, the court entered a temporary restraining order to preserve the status quo pending a hearing and restrained defendant from soliciting any of plaintiff’s customers. Mr. Bernero thereafter filed an answer alleging that the employment agreement was unenforceable.

During the hearing on the preliminary injunction, the court heard the testimony of defendant and Mr. Lawrence Kugler, Millard’s vice-president of sales. Mr. Kugler testified .that a key prerequisite to bidding for a maintenance contract is access to the specific individual in building ownership or management who contracts for maintenance services. Mr. Kugler also testified that it is important for a maintenance service to gain access to those decision makers because they have the power to give a maintenance company the opportunity to bid. Millard and its sales employees could identify those decision makers and gain access to them because of Millard’s size and reputation. Once a Millard salesperson, such as Mr. Bernero, gains access to the key decision maker, he or she tries to persuade the decision maker to give Millard an opportunity to bid.

If Millard is granted an opportunity to bid, its operations supervisor walks through the building with the salesperson. During the walk-through, Millard determines the specific needs of the customer, the type of equipment and supplies, needed, the number of personnel required, and any other factors which should be considered in the bidding process. These may include special types of marble, wood, or other surfaces requiring special equipment or care.

After the walk-through, the salesperson consults Millard’s management and prepares the bid. Management evaluates the market and any competitive considerations which may result in an adjustment of the bid. Mr. Kugler testified that several of Millard’s costs factors are unique and confidential. He cited, for example, the manner in which Millard amortizes equipment costs and passes those costs on to its customers. The trial court specifically held that Millard’s workers’ compensation rate and its premiums for public liability insurance, based upon its claims history, are confidential. The trial court also found that the overhead, and profit margin which Millard added to its bids was confidential. .

Mr. Bernero was on Millard’s sales staff, and he made sales calls to various prospective clients. He also conducted walk-throughs. The trial court found that defendant gained access to customers whom he would not have been able to contact but for his employment with Millard. In addition, Millard trained defendant to compute and prepare bids. Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Allied Waste Services of North America, LLC v. Tibble
177 F. Supp. 3d 1103 (N.D. Illinois, 2016)
McInnis v. OAG Motorcycle Venturs, Inc.
2015 IL App (1st) 130097 (Appellate Court of Illinois, 2015)
Prairie Rheumatology Associates, S.C. v. Francis
2014 IL App (3d) 140338 (Appellate Court of Illinois, 2015)
Montel Aetnastak, Inc. v. Miessen
998 F. Supp. 2d 694 (N.D. Illinois, 2014)
LKQ CORP. v. Thrasher
785 F. Supp. 2d 737 (N.D. Illinois, 2011)
Brown and Brown, Inc. v. Mudron
887 N.E.2d 437 (Appellate Court of Illinois, 2008)
Scheffel & Co., P.C. v. Fessler
Appellate Court of Illinois, 2005
Appelbaum v. Appelbaum
823 N.E.2d 1074 (Appellate Court of Illinois, 2005)
Delta Medical Systems v. Mid-America Medical Systems, Inc.
772 N.E.2d 768 (Appellate Court of Illinois, 2002)
Siemens Building Technologies, Inc. v. Camacho
168 F. Supp. 2d 425 (E.D. Pennsylvania, 2001)
Tsoukas v. Lapid
733 N.E.2d 823 (Appellate Court of Illinois, 2000)
Midwest Television, Inc. v. Oloffson
699 N.E.2d 230 (Appellate Court of Illinois, 1998)
Midwest Television v. Oloffson
Appellate Court of Illinois, 1998
Woodfield Group, Inc. v. DeLisle
Appellate Court of Illinois, 1998
Lawrence & Allen, Inc. v. Cambridge Human Resource Group, Inc.
685 N.E.2d 434 (Appellate Court of Illinois, 1997)
Lawrence & Allen, Inc. v. Cambridge Human Res. Group, Inc.
685 N.E.2d 434 (Appellate Court of Illinois, 1997)
Applied Micro, Inc. v. SJI Fulfillment, Inc.
941 F. Supp. 750 (N.D. Illinois, 1996)
Gerber v. Hamilton
659 N.E.2d 443 (Appellate Court of Illinois, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
566 N.E.2d 379, 207 Ill. App. 3d 736, 152 Ill. Dec. 692, 1990 Ill. App. LEXIS 1897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millard-maintenance-service-co-v-bernero-illappct-1990.