Summit Elec. Co. v. Mayrent
| Decision Date | 05 February 1974 |
| Docket Number | No. 58903,58903 |
| Citation | 17 Ill.App.3d 545,308 N.E.2d 313 |
| Parties | SUMMIT ELECTRIC COMPANY, a corporation, Plaintiff-Appellee, v. Wilbert MAYRENT et al., Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Arvey, Hodes & Mantynband, Chicago (Gary D. Fridman, Phillip M. Heller, Chicago, of counsel), for defendants-appellants.
Jerome H. Torshen, Ltd., Chicago (Jerome H. Torshen, Robert A. Skirnick, Chicago, of counsel), for plaintiff-appellee.
This is an interlocutory appeal from an order entered in the court below granting the motion of plaintiff-appellee, Summit Electric Company (hereinafter Summit), for a preliminary injunction against defendants-appellants, Wilbert and Howard Mayrent, Troy Finley, Viola Berglund, and Associated Electric Company (hereinafter Associated). The appeal is brought pursuant to Illinois Supreme Court Rule 307, Ill.Rev.Stat.1971, c. 110A, § 307.
The complaint in the circuit court alleged, Inter alia, that Summit had been engaged in the electrical contracting business for approximately 50 years; that the individual defendants had been 'key supervisory or managing personnel' of plaintiff, who had 'knowledge of all of plaintiff's jobs in process, layouts thereon, estimates on bidding therefor, procedures, and clientele' and that as employees, Summit's corporate records, at all times, had been available to the individual defendants; that Wilbert Mayrent had been elected secretary of Summit on December 10, 1968, and remained in said position until December 26, 1972, and that he had been Summit's general superintendent and in charge of distribution and supervision of all Summit's employees in the field; that Howard Mayrent had been employed as Summit's chief estimator; that Viola Berglund had been a secretary and the chief clerical employee of Summit; that Troy Finley had been employed as Summit's general superintendent in the field and worked immediately under Wilbert Mayrent; that sometime prior to December, 1972, the defendants Wilbert and Howard Mayrent had acquired Associated, which previously had been in the electrical contracting business; and that, at various times subsequent to December 26, 1972, the individual defendants left Summit's employ to begin working for Associated.
Utilizing the following numerical designations, the complaint further alleged that:
'13. During the period in which the individual defendants were employed by plaintiff, plaintiff performed services, prepared estimates or bids, did preliminary work or work preparatory to bidding or made analyses of plans and specifications or aided in the preparation of layouts, preliminary budgets or estimates on the following jobs: (Then followed a list of nine jobsites not repeated here.)
The complaint further alleged that subsequent to leaving the employment of Summit and joining Associated, the individual defendants sought to bid on certain of the stated jobs; that the actions of the individual defendants are in breach of fiduciary obligations owed to Summit; that if the individual defendants, acting through Associated, were permitted to continue, they would cause irreparable harm to Summit in that it would be deprived of considerable time and personal financial resources expended in connection with the aforementioned jobs; and that it had the right to be free from concern that information gathered by Summit and available to defendants while in Summit's employ, 'may' be used by defendants in competition with Summit.
The complaint's prayer for relief, in pertinent part, sought the issuance of a preliminary injunction, restraining and enjoining defendants from seeking to obtain for Associated or themselves, any of the nine enumerated jobs listed in the complaint.
By way of answer, defendants, in pertinent part, denied Summit's allegations that Viola Berglund had been Summit's chief clerical employee and that Troy Finley had been Summit's general superintendent in the field; that defendants were 'key supervisory or managing personnel' of Summit, who had knowledge of all of Summit's jobs in process, layouts thereon, estimates on bidding therefor, procedures and clientele, and that, as employees, Summit's corporate records, at all times, had been available to the individual defendants; and that, sometime prior to December, 1972, Wilbert and Howard Mayrent had acquired Associated.
Defendants' answer then went on to admit the allegations of paragraphs 13 and 14 of Summit's complaint, set forth above, and to deny certain other allegations of the complaint. Continuing, defendants' answer asserts the relief sought by Summit constitutes an unreasonable and unlawful restraint of trade and restriction of their rights, that the individual defendants did not agree with Summit not to enter into free and lawful competition with Summit, and that the jobs about which Summit complains are being let upon competitive bidding.
At a hearing held on Summit's motion for the entry of a preliminary injunction, the only witness called by Summit was Wallen Arbetter, one of its executives. Arbetter testified, in part, that certain documents, kept in the regular course of Summit's business, which referred to the Moon Lake Condominium project, reflected preparatory work by either Wilbert or Howard Mayrent, or both; that the plans included in the Moon Lake Condominium project files had been prepared by someone not in his employ; that said plans had been forwarded to him at the same time Summit had been invited to bid on the project; that he had been told by the Moon Lake project's developer representative that bids would be let on a competitive basis; that, with respect to the Holiday Inn project, no final bid had been made by Summit prior to defendants' leaving Summit's employ; that, regarding the Pine Grove Apartments project, Summit had been informed that its bid for the electrical work had been higher than those submitted by Associated and another electrical contracting firm; and that Summit's file of documents regarding the Holiday Inn project had disappeared.
During oral argument on Summit's motion, the court, in colloquy with counsel wherein he referred to the pleadings on file before him, indicated the reasons which led to the subsequent issuance of the preliminary injunction order:
'THE COURT: Paragraph 13 () enumerates 1, 2, 3, 4, 5, 6, 7, 8, 9 jobs. It said he (sic), the plaintiff, prepared work and did estimates, you admit that. (sic)
MR. FRIEDMAN (Counsel for defendants): That's right.
Subsequently, the court below entered an order of preliminary injunction against defendants, enjoining defendants preliminarily from seeking to obtain for Associated or for themselves, their agents, or employees, any of eight enumerated jobs. 1
Two of the jobs listed in the complaint were not included in the order, but would be subject to further order of court, because Associated had submitted bids, had received the award on one job and was awaiting the letting on the other job.
The single issue presented upon review, as we see it, is whether the trial court abused his discretion in issuing the order of preliminary injunction in the instant case.
It is to be noted at the outset that throughout our review of this interlocutory appeal, which is based upon the issuance of a preliminary injunction, we cannot consider the merits of the case, nor are we to decide controverted facts. The only question before this court is to determine, from the record, whether there was a legal basis to sustain the granting of the preliminary injunction. Schwalm Electronics, Inc. v. Electrical Products Corporation et al. (1st Dist. 1973), 14 Ill.App.3d 348, 302 N.E.2d 394.
A preliminary injunction is an extraordinary remedy, and, thus, to warrant its issuance, a party must clearly show a need to preserve the Status quo--in that he will be susceptible to irreparable damage if the injunction does not issue--and, in addition, that there is a probability of ultimate success on the merits of his claim. (Western Leasing Co. v. Kirkpatrick (1st Dist. 1972), 4 Ill.App.3d 704, 707, 281 N.E.2d 444; McErlean v. Harvey Area...
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