Geneva Hosp. Supply, Inc. v. Sandberg
| Decision Date | 03 August 1988 |
| Docket Number | 2-87-1040 and 2-87-1041,Nos. 2-87-0860,s. 2-87-0860 |
| Citation | 172 Ill.App.3d 960,527 N.E.2d 611,123 Ill.Dec. 148 |
| Parties | , 123 Ill.Dec. 148 GENEVA HOSPITAL SUPPLY, INC., Plaintiff-Appellant, v. Drusilla SANDBERG et al., Defendants-Appellees. GENEVA HOSPITAL SUPPLY, INC., Plaintiff-Appellee, v. GINDERS HOSPITAL SUPPLY COMPANY, Defendant-Appellant (Drusilla Sandberg, Defendant). * |
| Court | United States Appellate Court of Illinois |
Kevin F. Lynch (argued), Elizabeth L. Krueger, P.C., Wheaton, for Geneva Hosp. Supply, Inc. Robert M. Foote, Craig S. Mielke (argued), Murphy, Hupp, Foote, Mielke & Kinnally, Aurora, for Drusilla Sandberg.
James P. Devine (argued), Williams & McCarthy, for Ginders Hosp. Supply Co.
This consolidated appeal arises from plaintiff Geneva Hospital Supply, Inc.'s (Geneva's), action against its former employee, defendant Drusilla Sandberg (Sandberg), and her new employer, defendant Ginders Hospital Supply Co. (Ginders). Appeals from three orders of the circuit court of Kane County have been consolidated in this court. In No. 2-87-0860, Geneva appeals from an order denying a preliminary injunction. In No. 2-87-1041, Geneva appeals from an order dismissing with prejudice Geneva's complaint. In No. 2-87-1040, Ginders appeals from an order denying its motion for sanctions under section 2-611 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-611).
Geneva, Ginders, and several other companies are competitors in the business of selling medical supplies and equipment to medical doctors, clinics, and other customers. They do not manufacture any of the products they sell, obtaining those products from the manufacturers. They are not the exclusive distributors of any of the products they sell, nor, except in rare cases, are they the exclusive suppliers of the medical supplies and equipment for any of their customers. Sandberg worked for Geneva as a sales representative between 1984 and May 7, 1987. On March 6, 1985, Geneva had Sandberg sign a document entitled "Employment Non-Compete Agreement." If she had refused to sign it, Geneva would have fired Sanberg. After Sandberg's resignation on May 7, 1987, she worked for Ginders as a sales representative.
Geneva filed a nine-count complaint seeking various forms of relief against Sandberg and Ginders, essentially concerning Sandberg's dealings with customers of Geneva while still employed by Geneva and in her new position as sales representative for Ginders. One of the counts was based upon breach of the "Employment Non-Compete Agreement," and the other counts were not. The same day the complaint was filed, Geneva also moved for the entry of a preliminary injunction:
"A. Enjoining [Sandberg] from directly or indirectly, for herself or any other entity, soliciting, diverting, taking away or attempting to take away, any of the customers of [Geneva].
B. Enjoining [Sandberg and Ginders] from conducting any business with any customers solicited by [Sandberg] during her employment with [Geneva].
C. Directing [Sandberg and Ginders] to render a full and complete accounting of the profits from dealings with clients and former clients of [Geneva], including but not limited to, Drs. Fredrickson, Schewmake and Lipinski.
D. Imposing a constructive trust on the profits and commissions which are and will come into the hands of [Sandberg and Ginders]."
Following a lengthy hearing, the trial court denied the motion for a preliminary injunction because the court found "no protectable interest by Geneva in its customers." Geneva appealed from this order (No. 2-87-0860). 107 Ill.2d R. 307(a)(1).
Sandberg and Ginders moved to dismiss Geneva's complaint because, inter alia, "each and every count of plaintiff's complaint fails to even attempt to allege any legally cognizable protectable interest" when such an allegation was essential to the causes of action Geneva was attempting to allege. These motions were made under section 2-615 of the Code of Civil Procedure. (Ill.Rev.Stat.1987, ch. 110, par. 2-615.) These motions, filed before the hearing on the motion for entry of a preliminary injunction, had been taken with the case and were ruled on after the denial of the preliminary injunction. The court granted the motions to dismiss because it had found there was no protectable interest, "[a]nd since there is no protectable interest, these causes of action cannot be properly stated." Geneva appealed from this order (No. 2-87-1041). Immediately after dismissal of the complaint, the court heard Ginders' motion for sanctions against Geneva pursuant to section 2-611 of the Code of Civil Procedure. (Ill.Rev.Stat.1987, ch. 110, par. 2-611.) The court denied this motion. Ginders appealed from this order (No. 2-87-1040).
We first address the propriety of the dismissal of the complaint (No. 2-87-1041). Geneva contends that: (1) Sandberg's filing of a motion for summary judgment waived any objection to the sufficiency of the complaint; (2) Sandberg's motion to dismiss was not sufficiently specific; and (3) all counts of the complaint were sufficient, none of the causes of action pled requiring allegation and proof of a legally protectable interest.
Geneva's argument that Sandberg's filing of a motion for summary judgment waived any objection to the sufficiency of the complaint is without merit. First, Sandberg withdrew her motion, so there was no motion for summary judgment pending when the trial court granted defendants' motions to dismiss the complaint. Second, the case on which Geneva relies does not stand for the proposition that the filing of a motion for summary judgment waives any objection to the sufficiency of the complaint. Instead, it stands for the proposition that "[t]he sufficiency of a complaint must be attacked by motion" and, where it is not so attacked but summary judgment is moved for instead, objection to the complaint's sufficiency is waived. (Pollock v. Hafner (1982), 108 Ill.App.3d 410, 416, 64 Ill.Dec. 156, 159, 439 N.E.2d 85, 88.) This waiver rule is inapplicable to the case at bar, where motions to dismiss were made.
With reference to the appropriate procedure in a case where both dismissal of a complaint and summary judgment were sought, our supreme court said:
(Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 406, 312 N.E.2d 605, 609.)
In the case at bar, this procedure was followed, with the trial court considering first the motions to dismiss the complaint and, after dismissing it, having no need to entertain the motion for summary judgment. Therefore, objection to the sufficiency of the complaint was not waived by Sandberg's filing of a motion for summary judgment. See Kolton v. K & L Furniture & Appliances, Inc. (1979), 82 Ill.App.3d 868, 872-73, 38 Ill.Dec. 247, 251-52, 403 N.E.2d 478, 482-83.
In the trial court, Geneva never argued that the motion to dismiss of Sandberg was insufficiently specific or that all counts of the complaint were sufficient, none of them requiring the allegation of a legally protectable interest. Consequently, these issues have been waived and will not be considered. (Lemke v. Kenilworth Insurance Co. (1985), 109 Ill.2d 350, 354-55, 94 Ill.Dec. 66, 68-69, 487 N.E.2d 943, 945-46; Upper Avenue National Bank v. First Arlington National Bank (1980), 81 Ill.App.3d 208, 211, 36 Ill.Dec. 525, 527, 400 N.E.2d 1105, 1107; Burdin v. Jefferson Trust & Savings Bank (1971), 133 Ill.App.2d 703, 706-07, 269 N.E.2d 340, 343-44.) We, therefore, find no reversible error in the trial court's dismissal of Geneva's complaint (No. 2-87-1041).
We next consider the appeal of Geneva from the order denying its motion for a preliminary injunction (No. 2-87-0860). We need not address the merits of that appeal or Sandberg's contention that the appeal should be dismissed for failure of the notice of appeal to comply with Supreme Court Rule 307 (107 Ill.2d R. 307), because we dismiss the appeal as moot.
The preliminary injunction was sought to preserve the status quo until the trial court decided the case on its merits. If the preliminary injunction had been granted and left pending, the order dismissing the complaint would have dissolved it. (Department of Transportation v. Schien (1977), 50 Ill.App.3d 73, 76, 8 Ill.Dec. 464, 467, 365 N.E.2d 702, 705, aff'd (1978), 72 Ill.2d 287, 21 Ill.Dec. 163, 381 N.E.2d 241; Phelps v. Foster (1857), 18 Ill. 309, 310-11; see also Schuler v. Wolf (1939), 372 Ill. 386, 389, 24 N.E.2d 162, 165; House of Vision v. Hiyane (1965), 58 Ill.App.2d 431, 439, 208 N.E.2d 390, 395.) The complaint being dismissed, and the dismissal being affirmed, Geneva's appeal from the denial of the preliminary injunction has become moot. (In re Marriage of Beck (1980), 83 Ill.App.3d 976, 982, 39 Ill.Dec. 381, 385, 404 N.E.2d 972, 976; Dempsey v. Guaranty Trust Co. (7th Cir.1942), 131 F.2d 103, 105, cert. denied (1943), 318 U.S. 769, 63 S.Ct. 761, 87 L.Ed. 1139.) We therefore dismiss that appeal (No. 2-87-0860).
Last, we consider Ginders' appeal from the circuit court's denial of its motion for sanctions (No. 2-87-1040). The motion requested costs and attorney fees pursuant to section 2-611 of the Code of Civil Procedure, which provides:
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