House of Vision, Inc. v. Hiyane

• Decision Date: 29 January 1969
• Docket Number: No. 41369,41369
• Citation: 42 Ill.2d 45,245 N.E.2d 468
• Parties: The HOUSE OF VISION, INC., Appellee, v. William M. HIYANE et al., Appellants.
• Court: Illinois Supreme Court

Page 468

245 N.E.2d 468

42 Ill.2d 45

The HOUSE OF VISION, INC., Appellee, v. William M. HIYANE et al., Appellants.

No. 41369.

Supreme Court of Illinois.

Jan. 29, 1969.

Rehearing Denied March 25, 1969.

Leonard Rose, Mason, Albright, Stansbury & Rose, Chicago, for appellants.

Lawrence J. West, Leo Spira, Chicago, for appellee.

HOUSE, Justice.

This appeal is an aftermath of litigation between the parties to enforce a covenant against a former employee of plaintiff and to compete in the business of selling and servicing optical products, particularly contact lenses. The trial court reduced the area limitation and placed a five-year time limitation on the covenant. It enjoined the former employee William M. Hiyane from dispensing or servicing contact lenses within 20 miles of plaintiff's office for five years and enjoined Acro Contact Lens Service, Inc., the new employer, from employing him in the restricted area during that period. Master's fees of $3,043.25 less the security deposit of defendants of $1,000, were ordered paid, 1/4 by plaintiff and 3/4 by the former employee. On the first appeal, opinion in which was filed March 29, 1967, we held that the restrictive covenant was unreasonable, reversed the judgment and remanded 'with directions to dismiss the complaint for want of equity and to assess the fees of the master in chancery and other costs against the plaintiff.' 37 Ill.2d 32, 225 N.E.2d 21.

On May 6, 1967, defendants moved to retax costs and attached an affidavit certifying costs and expenses incurred in the appeal to this court in the total sum of $16,293.50. They included attorneys' fees of $13,000 and various amounts for printing of briefs, supersedeas bond premiums and travel expenses, together with secretarial service, special paper and 'synthesis' in connection with the abstract of record which are in addition to a $400 charge for reproducing the abstract. On the same day they filed a motion to amend the mandate by including a direction to tax costs in all proceedings, including attorneys' fees, and all costs related to an interlocutory appeal by plaintiff. Both motions were denied by this court on May 11, 1967.

Thereafter, on December 27, 1967, defendants filed suggestions of costs and damages pursuant to section 12 of the act pertaining to injunctions. (Ill.Rev.Stat.1967, ch. 69, par. 12.) Costs, including court reporter fees of $581.30 and items other than the $35 docket fee, $16 transcript cost and $400 for abstract, were alleged to be $1,288.27, minus a credit for the last three items totaling $451 received from plaintiff. Damages suggested were $1705.16 (consisting primarily of printing and secretarial services) plus attorneys' fees of $36,241 ($26,280 of which was alleged to relate to the appeal to this court) and $30,000 for lost business. The trial court dismissed defendants' suggestion of damages by reason of the mandate of this court and directed payment by the plaintiff of additional costs of $21.30, and upon payment of the latter amount in open court the judgment was satisfied. Our jurisdiction is invoked because of alleged constitutional questions.

Defendants argue that our mandate did not preclude them from proceeding on the issue of damages. This flies in the face of the plain language of the mandate which is in the exact language of the directions in the opinion: 'to dismiss the complaint for want of equity an to assess the fees of the master in chancery and other costs against the plaintiff'. (37 Ill.2d at p. 40, 225 N.E.2d at p. 25.) As was stated in Thomas v. Durchslag, 410 Ill. 363, 365, 102 N.E.2d 114, 115 (where plaintiff sought to contest reimbursement after a prior opinion had held taxes, interest and costs reimbursable and directed conformance with the opinion): 'Where, as here, the directions of a reviewing court are specific, a positive duty devolves upon the court to which the cause is remanded to enter an order or decree in accordance with the directions contained in the mandate. Precise and unambiguous directions in a mandate must be obeyed.' (Hornof v. The Kroger Co., 40 Ill.2d 545, 240 N.E.2d 658; Fisher v. Burks, 285 Ill. 290, 120 N.E. 768.) In this case the trial court properly followed the mandate by refusing to consider the question of damages, set a hearing on costs and entered an order for payment of $21.30 additional to master's costs of $3,043.25 and $451 costs assessed by the clerk of this court and theretofore paid by plaintiff.

Defendants further argue that if they were precluded from a hearing on the issue of damages, which issue 'became ripe only on remand', there was a violation of due process. This argument is enlarged by the further assertion of due process violations; (1) by the court's refusal to dissolve the preliminary injunction order thereby preventing them from taking timely action under the Injunction Act and (2) that the dissolution of a permanent injunction on appeal has the same effect as a wrongful preliminary injunction at the completion of a trial of the merits.

At the outset we dispose of the contention that the damage provision of the injunction act applies to permanent as well as temporary injunctions. In Schien v. City of Virden, 5 Ill.2d 494, 126 N.E.2d 201, this court squarely held that the purpose of the statute was to provide a summary means of assessing damages for the wrongful issuance of a temporary injunction and that the statute applied only to temporary injunctions. It was there pointed out that in an action for a permanent injunction and a temporary injunction issued prior to a determination on the merits, separate and distinct issues are involved and the issues as to issuance of a temporary injunction are not dependent upon the holding on the merits. (See also United Mail Order, Warehouse & Retail Employees Union, Local 20 v. Montgomery Ward & Co., 9 Ill.2d 101, 137 N.E.2d 47.) As precedent this court in Schien cited Chicago Title & Trust Co. v. De Lasaux, 336 Ill. 522, 168 N.E. 640. Defendants are severely critical of dependence on the De Lasaux case a precedent because it was under section 8, not section 12. The difference between the two is that section 8 pertains to injunctions restraining the collection of a judgment while section 12 deals with all other types of injunctions. The two are analagous, however, because each refers to dissolution and envisions dissolution prior to final disposition of the case. We adhere to the established view that...