Southern Illinois Medical Business Associates v. Camillo

• Decision Date: 22 February 1991
• Docket Number: No. 5-88-0507,5-88-0507
• Citation: Southern Illinois Medical Business Associates v. Camillo, 567 N.E.2d 74, 208 Ill.App.3d 354, 153 Ill.Dec. 359 (Ill. App. 1991)
• Parties: , 153 Ill.Dec. 359 SOUTHERN ILLINOIS MEDICAL BUSINESS ASSOCIATES, a partnership, Plaintiff-Appellee, v. Tony CAMILLO, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 74

567 N.E.2d 74

208 Ill.App.3d 354, 153 Ill.Dec. 359

SOUTHERN ILLINOIS MEDICAL BUSINESS ASSOCIATES, a partnership, Plaintiff-Appellee, v.Tony CAMILLO, Defendant-Appellant.

No. 5-88-0507.

Appellate Court of Illinois Fifth District.

Feb. 22, 1991.

Churchill & McDonnell, Belleville (Allen D. Churchill, of counsel), for defendant-appellant.

Farrell & Long, P.C., Godfrey (J. Thomas Long, Phillip H. Hamilton, of counsel), for plaintiff-appellee.

Justice GOLDENHERSHdelivered the opinion of the court:

Defendant, Tony Camillo, appeals from an order of the circuit court of Madison County holding him in indirect civil contempt for his wilful failure to obey a preliminary injunction issued in favor of plaintiff, Southern Illinois Medical Business Associates(SIMBA), against defendant.In a separate hearing, plaintiff's reasonable attorney fees were found to be $20,193.79.The circuit court ordered that defendant could purge himself of the contempt by paying the clerk of the circuit court on behalf of plaintiff the $20,193.79.

This is not the first time these parties have been before this court.Initially, this case began when a temporary restraining order was issued at an ex parte hearing against defendant, an ex-employee of plaintiff, on September 24, 1987.The temporary restraining order was initiated by plaintiff after defendant formed his own company, Metroplex, which was in direct competition with plaintiff and which was contrary to an employment contract between the parties.On September 29, 1987, at 11:56 a.m., defendant was served with the temporary restraining order.On October 14, 1987, after a hearing, the circuit court entered a preliminary injunction in favor of plaintiff and against defendant, from which defendant appealed to this court.Thereafter, on March 1, 1988, while the injunction was in effect and before defendant's appeal on the preliminary injunction was heard by this court, plaintiff filed a contempt petition against defendant for allegedly violating the preliminary injunction.Testimony was taken at a hearing on plaintiff's contempt petition beginning on March 31, 1988, and resuming on April 19, 1988.On July 19, 1988, the circuit court entered its order finding defendant in contempt for violations of the preliminary injunction.On August 18, 1988, defendant filed his notice of appeal from the contempt order.On October 30, 1989, this court reversed the preliminary injunction order entered by the circuit court on October 14, 1987, finding that plaintiff had no legitimate protectable business interest in its customers.SeeSouthern Illinois Medical Business Associates v. Camillo(1989), 190 Ill.App.3d 664, 138 Ill.Dec. 4, 546 N.E.2d 1059.

In this cause, defendant raises three issues: (1) whether our reversal of the preliminary injunction causes the contempt order to fail, (2) whether the order requiring defendant to pay plaintiff $20,193.79 for its attorney fees should be reversed, and (3) whether the contempt order is contrary to the manifest weight of the evidence.We affirm.

All facts necessary for an understanding of the background of this litigation leading up to the preliminary injunction issued on October 14, 1987, are contained in Southern Illinois Medical Business Associates v. Camillo(1989), 190 Ill.App.3d 664, 138 Ill.Dec. 4, 546 N.E.2d 1059, and need not be repeated here.The following facts were adduced at the contempt hearing.

The first witness to testify was defendant, who was called as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure(Ill.Rev.Stat.1987, ch. 110, par. 2-1102).Defendant acknowledged that he was served with a temporary restraining order on September 29, 1987, and was further enjoined by a preliminary injunction entered on October 14, 1987.Defendant confirmed that his wife, Debbie Camillo, had a consulting company named DLC Consulting.DLC Consulting had a bank account over which defendant had signatory power.Defendant denied violating either the temporary restraining order or the preliminary injunction.He testified that in order to comply with the injunction, he had called the attorney who was handling the incorporation of Metroplex and told the attorney to take his name off the incorporation papers.Defendant denied making telephone calls to any nursing homes or businesses on behalf of Metroplex, even though he admitted that his telephone bill had substantially increased in the months of October and November 1987.Defendant attributed this increase to his wife's activity on behalf of Metroplex.Defendant's wife had assumed a position with Metroplex and was paid $800 every two weeks for her services by Dr. Jacks, originally defendant's partner in Metroplex, but now apparently the sole stockholder in Metroplex.Defendant denied ever drawing blood or performing any technical work on behalf of Metroplex.He denied supervising Metroplex employees.Defendant did admit that he took a Metroplex employee, Kimberly Lane, to Clinical and Biochemical Procedures, Inc., in St. Louis after he had been served with the temporary restraining order.Defendant stated that he took Kim to that office to drop off specimens because she was not sure how to get to the office.Defendant admitted making deposits to the bank on behalf of Metroplex, but claimed he did so only because his wife was tied up with other matters.Defendant denied negotiating a lease on behalf of Metroplex for the Kent Building where the new Metroplex office is located, at 2105 Vandalia in Collinsville.Defendant admitted that he may have talked to some people from the real estate company about this property and may have even looked at the office space.Defendant also admitted making the first payroll to Metroplex employees in October of 1987 out of his own pocket.Defendant explained that he paid Metroplex employees because Dr. Jacks said Metroplex had no money and defendant felt responsible for their well-being, as he was the one who hired these employees.Defendant paid four employees out of his personal checking account, but was later reimbursed by Dr. Jacks.Defendant also made a $50 personal loan to Randy Cheatham, another employee of Metroplex.

The next witness to testify was Leona Peskar, co-owner of the J.E. Kent & Company Realtors and owner of the Kent Building where Metroplex is now located.Peskar testified that defendant called her to ask about office space in the Kent Building.Initially defendant called and inquired about the price of the space and later stopped by to examine it.According to Peskar, defendant stated that he wanted "to go on a month-to-month with some type of blood testing thing."Peskar stated that she showed defendant the office space and received a deposit on behalf of Metroplex on October 23, 1987.Peskar was acquainted with defendant because she had been his agent on his residence.Finally, Peskar testified that she had not seen defendant on the premises since the deposit was made.

The next witness was Trina Barr, age 26, married, and an ex-employee of SIMBA and Metroplex.Barr testified that she began work for SIMBA in January 1986, and worked through September 1986, when she quit work to have a baby.She testified that she went back to work for SIMBA in September 1987, at defendant's request.Defendant had originally hired her at SIMBA to work as a phlebotomist and courier.While she was working at SIMBA, defendant told her of his plans to open Metroplex and asked her to join his staff.Barr agreed to work at Metroplex and signed a letter of resignation to SIMBA written by defendant on her behalf.Barr stated that she began to work for Metroplex on October 8, 1987.On that date, Metroplex was being operated out of defendant's garage.Barr arrived at 8:30 a.m.At that time, four other people were also there--defendant, Kimberly Lane, Theresa Kimball, and Randy Cheatham.According to Barr, these four were getting supplies set up and were spinning down blood that had been received earlier in the morning.Defendant told Barr that he had taken the supplies in his garage from SIMBA.Barr testified that the supplies allegedly taken by defendant from SIMBA included tubes, tape, needles, alcohol, and cotton.Barr testified that Metroplex operated out of defendant's garage for approximately one month.According to Barr, defendant would call her between 8 p.m. and 10 p.m. each evening to tell her what nursing home she should go to the next day in order to draw patients' blood samples.After she and the other phlebotomists retrieved the samples, they would return to defendant's garage to spin down the blood in order to get it ready to take to a reference lab for testing.Defendant would then pass out reports of previously tested blood that needed to be taken back to the appropriate nursing homes.Barr stated she always received instructions from defendant, and in her mind, defendant was the boss.Barr met Dr. Jacks on only one occasion, when she went to his office to do blood work, but she never took instructions from Dr. Jacks.Barr testified that she took no instructions from Debbie Camillo.Barr stated that during October, she was paid by defendant.Defendant would either leave the check in her mailbox or have another Metroplex employee drop it off to her.After Metroplex moved its operation from defendant's garage to the Kent Building in November 1987, Barr assumed the positions of both phlebotomist and receptionist.Barr would go to nursing homes from approximately 5 a.m. to 8 or 8:30 a.m., and then return to the Metroplex office.Upon arrival, she would call defendant's home to let him know that she was in the office so that calls to Metroplex could be taken there.According to Barr, when no one was in the Metroplex office, calls to Metroplex were forwarded to defendant's home phone through a system of call-forwarding.Barr also testified that defendant had instructed her that if anyone called the office for him, she was...