c the practice group that's at issue here and june thirtieth two thousand and ten to start working for their own practice group and that very day the trial court entered a temporary restraining order which was granted in part on the plaintiffs motion and thereafter we started the preliminary injunction hearing on september first two thousand and ten it was done on june first two thousand and eleven and the ruling came down in january seventeenth two thousand and twelve so we sit here almost three years after my agreement was had expired or terminated before i'm sorry it was extended before it terminated on august thirty first two thousand and nine we say the evidence shows that it was not the third point like to get through is there's two big injunctions one is our clients were enjoined from doing any business with an h m o that's called the northwest suburban i p a without any time limitation whatsoever and also our clients were enjoying from seeing any empty see patients without any time restrictions or geographic restrictions whatsoever and compare that to the t r o where there was a specified time period and then the last point i'd like to talk about is judge apparently basically refused to so moving on to the first point whether the privileges restriction was in forcible again the trial court found that this restriction was ambiguous as written when you look at her graph nine of dr hale hands employment agreement their stuff three separate restrictive covenants one is that dr hale again was not to practice medicine within five miles of an m p c office and the m p c did have six offices as opposed to work doctors had privileges for a period of three years and pencil provision in the agreement there is a blue pencil provision but we don't think that the court could should blue pencil because it would be supplying a missing term such as time in geographic limitations so that it was pretty clear that we're not going to make a contract for the parties that they didn't make in the first place and then his present law is concerned that the judge could have a hearing or can reduce if it's too broad the just going to rewrite correct restriction where the judge i'm sorry that you called court said that this restriction has no time and patient could go on forever we're not going to supply time now in agree with the first place so when you look at the privileges restriction initially when you even look at the privileges injunction just can't leaf to find that the three year to pour a limitation should apply to when you look at the meat of her order which she says the court will enter the following relief there's no three year limitation placed at that time that  junction and there was a three year limitation placed on another injunction so wasn't just that it was a preliminary injunction that was unnecessary was just not in there the deck is stacked against privileges restriction you know we know that you know restriction there are ten restricted facilities only two of those holy family insane alexis were within five miles so at best it's just two facilities at the end of the day moving on to the second issue as to whether the halal ha september first two thousand and six and that's the latest date in a light most favorable to the plaintiffs in a has an explicit three year term judge only found that dr hayling hand extended this agreement prior to august thirty first two thousand and nine with when you look at the evidence i don't think a night is enough it's not a meeting of the minds but when you look at the evidence that's not what doctors were missed to testify to in cross examination he was asked whether there was ever a specific time prior to august thirty first two thousand i think he and dr hale him discuss the extension of the employment agreement and agree to that he said no clearly said no and isn't further proof of that and in december of two thousand and nine at the n p c holiday party dr in my clients were enjoined from doing any business with the i p a in the preliminary injunction without any time limitation and again as to this is what i call the p c patient injunction my clients were prohibited from treating any current or former patients of n p c no n p c is thirty four years old so if a patient son p c in one nine hundred seventy eight hasn't seen him since they want to try to see my clients today they couldn't do it under the wording of this order and again judge can only when she entered the t r o she did put this eighteen month period in reading from the record and won't read it verbatim but she said there should be some time constraints on this i do think we need to put a time frame but around it i think eighteen months would be reasonable it seems to me that if people are really pursuing a particular doctor that they usually see the doctor every six to twelve months i think the team months will be reasonable she just forgot i think that's what happened she forgot to put any time restriction in the in the covenant an employee who didn't have one the first place and that's to protect trade secrets where the employee did take trade secrets were going to impose an injunction on him or her for certain time period i would say that i would sum of two things however in this case one there's been no proof of any theft the trade secrets there's no trade secrets act claim into that principle even if you're going to impose a restrictive covenant where there is no one should be subject to the seem reasonable miss standards such as time in geographic limitations that are written restructured government would have one other problem with this ip injunction is that it's undisputed that the practice group made three hundred thousand dollars a year off this kind of trick adequate there was adequate money did i state that there's last issue we had with judge can't lease rolling is i think she said it best to embody what she thought is that the real problem here is not a balance sheet and so what this issue gets to is whether the plaintiff's profitability profitability or lack there of to submit to the court to show that hey we've been really been hurt by what my clients did to them in effect the evidence they were able to glean showed that n p c had six offices before my client left clients left at six they still have s actually in next case the court ultimately denied a permit injunction because the plaintiff had been profitable by that time by the time they they tried a permanent junction case and there was no continuing irreparable harm prohibited from practicing within five miles or three years under his employment agreement because we say it was terminated thank you thank you  or jump ahead a little bitter i just want to correct one thing and mr lang would never purposely mislead you i know that and he i think you forgot they did do a motion to reconsider the scope of the patient's injunction and what happened he is correct they need at least filed a notice of appeal and then they probably motion to reconsider and i did argue that the trial court no longer could reconsider the order once the defendant said appeal the order and judge family said you know even if i wanted to reconsider this i don't have jurisdiction anymore and did deny the motion to reconsider so that that did happen for what it's worth getting to the point of this the conduct that gives rise to this case from these defendants includes while they solicited key employees they solicited this northwest suburban i p a contract a three hundred thousand dollars a year i p a contract and as judge panteley found dr r quite used information he had as an officer which was the without there being restrictive covenants those people look like choirboys compared to the defendants here that all this is just invasive wrongful conduct that the defendants to get so this conduct is relevant to  said you start treating patients you started your business you you had n p c employees doing work for you you did all these things you can't street the patients now ok so but is that that in entering that kind yes and that's what usually happens if you just set aside the other half of this injunction which is the injunction based on the restrictive covenants contained to dr helen hands and point agreement let's assume that never happened so we're dealing with i'm going breach fiduciary duty there's a preliminary injunction entered to enjoin it how long the separate them their injunction last one of your questions the last until the trial the very purpose but a preliminary injunction is to maintain the case preventer reparable harm until the court can hear the merits of the case after trial and then decide what to do a b c transnational we rely on the first case which was the preliminary injunction case that's what they did they rely on the second a b c transnational which was upon trial and a permanent injunction where the court and that that has a three year temporal limitation and to be clear the defendants argued to judge family that that provision was ambiguous i didn't but they did and judge apparently agreed and that's how hearing came about when they said it was ambiguous whether the three years applied the three years appears twice in that provision in the two other sense that the nine lays it is like bookends the sentence of the question was did they intend the three years also apply to the privileges restriction judge panel he took testified that he never intended to be bound by the restrictive covenant and just you know a really interesting unusual fact in this case is the defendant's  he apparently forgot the three months earlier in a medical malpractise case against him he produced and identified his signed employment agreement because that triggered insurance coverage for him so the medical malpractise case he had employment agreement in this disappeared at the same time the defendants left and p c the result of that was we got the initial t r o which was the basic the patient in the northwest suburban i p a injunction and judge panel had been very careful in and that was at we got dr helen hans deposition from the mit medical malpractise case we went back in as mr lang mentioned to you and we asked that judge apparently expand the t r o she said no we've done all this discovery let's have injunction hearing and will address the secretary junction hearing which she did and as was mentioned to you in january of two thousand and twelve expanded the preliminary injunction and finally enforced the restrictive covenants against practiced at the hospitals he agreed not to practice at he and doctor ah quat purchased an office condominium bought another branch of another office and dr helen han practiced medicine within five miles of one of the n p c offices contrary to the terms of his restrictive covenant for the key time after they left the first year and a half dr helen head was absolutely free to violate his restrictive covenant and he did it we didn't get that benefit from their strict government it's really hard to have sympathy for the defendants to say something unfair was done to me in this case when they benefited from the perjury and they were allowed to illegally compete with n p c for a period of time  and judge apparently found that the three years applied to the entire restrictive covenant that was the intention she heard evidence which she supposed to do she found dr produce good to be credible and nobody contradicted his testimony that i don't know what extended within the three years but dr held him clearly understood it was extended because in april in may of two thousand and ten more than three years after he signed the contract he sent these letters to  and said i'm leaving i complied with my obligations under my employment agreement so he doesn't in any again he didn't testify at the trial to dispute dr produce his testimony that they had agreed to extend the employment agreement it again was a non disputed issue so now the defense team saying we had to have extended the employment agreement before it terminated there is no law to support that no cases they cite the they say two cases coming where one law firm prepared employment agreements restrictive covenants for medical practices in both instances the agreement said here's the terms and the restrictive covenant survives the termination the agreement in one case the griminess terminated there was no clause in the agreement for four a extension as we had here and the party admitted oral argument in the appellate court that there was no agreement to extend the contract their argument simply was for five years after the agreement terminated because the language said it restrictive covenants survives termination the contract that kicked in the restrictive covenant five years after it minutely the contract was terminated it has nothing to do with this case the other case piece law the course ruling was simply it was basically the same contract from the same lawyer the court ruled that the medical practice had committed to material breaches of the employment agreement including refusing to give the doctor the promised equity he was supposed to get in the mood over his record and they said you can't enforce a contract that you've materially breached and that was the basis for that decision so there's no law saying the extension had to as to be entered before the contract runs by its terms the there's no dispute that there was an agreement to extend the contract the specific question that they're referring to from d was did you mention the words employment agreement when you agreed to extend this and he said no because his testimony was so that you can be a partner if you're not a partner you can continue on into the same terms that you're going here and dr hell had ultimately decided to continue under the same terms they didn't say the magic words employment agreement but they said you're going to continue under the same terms and conditions it respectfully i believe if we had to extend the agreement within its terms but that that satisfies that ambiguity here has nothing to do with the prohibited conduct the privileges restriction says that dr hill hand can't hold privileges he has to resign privileges at any medical field facility where any other dr hell handed mid that those were the there ya facilities so as far as the prohibited conduct from the restrictive covenant there's no ambiguity he knew he couldn't hold privileges at these facilities as he refused to resign absolutely and i have to point something out in the reply brief at page two the defendants what they're trying to do here is what happened to travel doctor produce his testimony they asked him repeatedly was the three years  limitation supposed to apply to the privileges restriction and he said yes and again judge family found him credible and accepted that at one point doctrine iska said and we have the five mile restriction and mr lane objected that the answer was nonresponsive and the judge said just answer the question so that to this guy who was reminding mr lang that there was also a five mile restriction so at the reply brief of defendants  page seven they set forth questions and answers reportedly where this so called admission was made and they leave out that edit out the question that doctrine isco actually answered and said in basing your interpretation this five mile radius the price of crude which is restrictions the answers that is what it says yes they leave out the interim question it says of the offices or any office of the corporation is that correct that is what it to the privileges restriction judge panteley heard the testimony and judge apparently ruled that it didn't apply she said it's just the three year limitation what dr helen is doing is again trying to avoid is restrictive covenant and get this court to say you don't have to resign your privileges are only going to affirm the injunction to the extent of two of the medical facilities that also happen to be within five miles if you read that restrictive covenant with all due respect there's no way that five mile prohibited from doing that i consider argument having some legs although i would call the court's attention to case we say total health physicians in that case the there prohibition was that the doctor can practice in any county in which the restriction let's take one example sherman hospital the first the your stripped of covenant requires dr helen hand to resign privileges at sherman hospital the defendants argue well there's no geographical imitation to that there is it's sherman hospital it's one place he has to resign privileges other than the other restricted facilities he can go to privileges at any other medical facility within the state the geographic limitation is sherman hospital so here we have that thing is for five hospitals and four or five surgery centers where he had to resign privileges there is a geographic limitation he just has to resign there go get privileges wherever else you want he had opportunities he had offers from two other when he decided to leave n p c where he admits he could have practiced podiatry in the state of illinois in the chicago area and not violated the geographical mutation of the restrictive covenant he signed but in an intent to be bound by of the restrictive covenant as doc as judge panel interpreted it as you know resolve the ambiguity that is limited to three years and this is really a unique argument from the defendants  possible interpretation of the privileges restriction they argued there is no limitation on it it's forever and sense they say i can't hold privileges of these hospitals forever it's too broad and you can't enforce this provision and judge panteley said i agree with you it's ambiguous let's figure out what everybody intended took the evidence decided it was three years is a three year privileges restriction reasonable and enforceable that's really the issue on that mojave only supreme court decision is a virtually identical provision i think it was clear that this provision was modeled after the mohanty decision it's the same provision basically except it's for a period of five years and the supreme court said that's reasonable we cited other cases we have the five mile radius restriction where dr hell hand can practice practice but i tree we cited cases up to a twenty five mile radius where a doctor was prohibited from practicing so if the  the terms of the agreement are certainly reasonable the part of the injunction that doesn't involve their strict of covenant which is the patient restriction and the northwest suburban i p a restriction is any the parties didn't have restrictive covenants has nothing to do with the an injunction based upon torts committed by the defendants and that's the same here feels towards that they committed the ongoing breach the fiduciary duties  f its hybrid maybe not a tort but the point is a common law cause of action that's intended to be in place until the hearing on the merits which we're shooting for this year that's fine i mean that but that's it i'm not  aware of a court without a restrictive covenant limiting the time period for competition saying i'm entering a preliminary injunction but it's going to vacate somehow before we have a hearing on the merits in this case before we have our trial in this case i just don't think that's done and i don't think that's the purpose of the preliminary injunction hearing is to keep everything the same and avoid the irreparable harm so you have the opportunity to have the trial and the last thing if i can mention one more thing the argument that we didn't prove damages the very purpose of the injunction is to prevent images the case law  says you don't have to prove damages when you get injunction to prevent the damages before they ever occur and in this case as mr lang told you we had the temporary restraining order entered the day effective dat resignations of doctors i quote and hello hand so from day one we limited their competition now they want to go in and say well what were your damages well we reduced our damages because we were proactive and we received the temporary restraining order that prohibited a lot of they were going to this wholesale stealing of the patients they started it while they were still associated with n p c we prohibited that so if that was relevant to  injunction case then we would be punished for diligence in getting the temporary restraining order prohibiting damages and then that would be a basis for us not to get a preliminary injunction because we came in so promptly to limit the damages we all know the elements i believe of what's necessary for preliminary injunction one of the elements is not proof of damages or proof that you're no longer profitable to referee ball harmatz and we don't have to prove our case we have to show we have a proper basis for each one of those elements pending the trial and in this case i with respect to snit we prove each of the elements for a preliminary injunction if a trial there's no damages than the court can deny a privileges restriction is that the trial court basically said we're going to we're going to borrow the time limitation from the first clause and supplied that term on to the second was so that to get to justice simon's question that really was blue penciling that the that the trial court did right there and done and then to compound the problem the trial court only took the time limitation but not the geographic limitation so basically the trial court said look it's in this it's in this agreement that the time limitation and we can put some reasonable restrictions on the privilege restriction by looking at other clauses in the agreement but she only applied half of the equation dr bring us when we asked them  trial cross examination is your position that this language from the first clause applies to the second clause he said yes that's what he was doing but again judge only one half way the the wod doesn't make a distinction when you're talking about restrictive covenants between a good ambiguity and a bad ambiguity if there's an ambiguity we're not going to force the cream in the total health case was not an ambiguous there is no claim that there isn't a big big less restrictive covenant there injunction in the question as to whether you can have an open ended thirty five year injunction essentially the wassa that injunctions just like restrictive covenants cannot be too big or too overbroad so going back to m secrets protection which is not an issue here talking about the evidence of profitability in council claims that his clients were punished for their diligence well the e t c transport case i think said it best it said that the date of the injunction real sense plaintiffs injuries can be compensated adequately in damages so we said here three years later we can we can see the impact of my clients was kind of on the business we can look at the balance sheet at this point the normal preliminary injunction case comes on the harm and we undercut under the case law but not being able to address it in council and his argument didn't even address that there was no there's no dispute here that there's adequate legal remedies as to that ip and ip injunction were definable in revenues of three hundred thousand dollars per year so for that we asked for the relief they asked for the first time around and also diagnosed at the trial as of course this point could dissolve the injunction to in addition to the relief of reversing the trial for