non computer agreement as the piano may be aware this is a matter that has been here before the court previously in a prior rule twenty three order and there was a prior litigation the first case the  the case doctrine and as i just indicated there was a prior rule twenty three order where there was a decision made on a motion to dismiss that was filed by dr midcap dr make have filed a motion to dismiss a comp claim in this matter back in two thousand and seven and she filed that motion to dismiss on the basis that the six thousand nine hundred eighty four that there was a prior judgment that precluded this claim and that was based upon claims of rescue  third position entered into a stock purchase agreement two thousand and two dr make it in the third position power twelve fifty six action in april two thousand and two there's an interim management agreement that is entered into and in may of two thousand  location directly across the street in an automobile building which is located directly from where she had practiced with dr gang grange the underlying action regarding the twelve fifty six was resolved dr gingrich ultimately did had violated the nine compete agreement as i mentioned a moment ago there was a motion to dismiss that came before you that motion was ultimately appealed remanded in reverse when it went back down after the rule twenty three order  through litigation all parties on equal footing it's it is applied with equal force to all parties who are present in the earlier litigation now in this circumstance that courts prior rule twenty three order rejected by presented ever in this litigation was in two thousand and eleven after this case had been filed in two thousand and seven and after the trial against it was never presented at the pleading stage in two thousand and seven rather the answer a joint motion under six nineteen point one filed for consideration at the same time on the motion for summary judgment there was nothing new that allowed for the basis for the motion for summary judgment other than what was already present in the pleadings and within the file at the time that the motion to do this was filed there could have been a judgment on the pleadings there could have been a motion for summary judgment as a joint motion under six nineteen point one everything was right and available they are within the file at the time that the record was developed and sent to you previously and the position is bad but necessary implication there has to be a case or controversy available if there was no case or case or controversy available in the first place such that there was no validity to the nine compete agreement by function of the purchase under the stock under the twelve fifty six action of the stock that would have disposed of the entire litigation previously as well we d your typical case which is newly filed no discovery no understanding of what the position of the parties are in the case think this is much more akin to the martin case where in martin all of those theories had been developed to stanch you it was actually even more interesting in that case because the statement that they subsequently rely upon in summary judgment was available and it was the court to sue a spontaneous raise that concern it was not even it and so i think but here the reason why i think it is even more  is because given the position of this of this particular litigation if you take into reference the prior case the ongoing nature of it since two thousand and two that there wasn't subsequent discovery that was required in the zero seven case it does apply here because there was an opportunity to preserve all those things when you're filing a motion that you seek to dispose of the entire significance of the case i think it's different from the lenski case we know that the appellate is going to address in that and lenski you had a circumstance which was a newly filed case you had a six fifteen motion and simply the only thing that was addressed was whether or not there was ability and ability to state a claim upon which really could be granted so different p hundred eighty four where you're saying that you you have the prior judgment think at the same time it was perfectly reasonable to have potentially framed this as a six thousand nine hundred eighty nine as an other affirmative manner as a judgment on the playthings or as again as a joint motion for that the idea is that if you want to have the case disposed you can preserve all of the basis upon which you could have had to preserve it disposed of at that point in time that were available to you and it's a very different circumstance had there not been the availability for the basis of what was moved upon for in motion for summary judgment clearly if you needed discovery back would have later developed those facts now that would be overly cumbersome but given here that all of that discovery and evidence with available in the record it could have been perfected at that point i think you're turning to the second point i have also preserved in the brief is they at once leaving the summary judgment belongs to clearly established in illinois and it's a very drastic measure that we obviously do not want to use to dispose of parties rights unless it's clear in free from down and the purpose is not to try a question of fact but to determine whether or not one exists or if there are materially or material facts that are not disputed but if reasonable persons might draw different emphases a motion for summary judgment it is exactly the circumstance that we have presently force in this case the law with regard to contract construction is also well established him in what occurred in this scenario was th rather than looking at the intent in trying to give effect to the parties intent it's kind of assisting to motion on the idea that it should be construed against the drafter and in contract law as we know that is kind of an area of last resort which at first go to other areas of construction and interpretation and trying to give full meaning in effect to the party intent here or the idea that it should be construed against the draft or has no application of the record contains many references to the fact that dr made camp was an active participant and in the drafting of this contract she was a participate she made changes to it she agreed that she had been represented and had the opportunity to consult legal counsel regard to the drafting of it and therefore the idea that it's construed against the drafter should not be applied here when that's not applied then you have to go to looking at the abundant extrinsic evidence of the parties  intent here and that comes back to dr midships participation in the drafting of the nine competing agreement first there was a carve out specifically for the city of alton just for jack to make as a reference there was a third position  of the nine compete agreement had required was that for five years subsequent to be in dealing of the relationship there would be no other office or patients taken outside twenty miles to go twenty miles outside but dr many kids being familiar with the area and from the area had negotiated for herself that she would in fact be allowed to maintain an office in alton in the albany area with those hospitals and or would be able to go into missouri but that was excluded from the scope of the night and i think it's very relevant to also take into consideration that at this point in time when the nine compete was entered into all three physicians he had a great interest in seeing that the patient base of the practice was care and the third physician had been a part of the practice for about a year and a half they were trying to build that practice so that their shares in the corporation would increase and they had just as much of a mutual interest in seeing back that corporation would continue if one of the members departed but again when you look today and the court were to give it back to the intention of the parties it's clear that the parties had intended they at the nine compete apply in that it apply under those terms which specifically allowed for the car or about wall no your honor it did not if you look to the language of the non compute agreement which has been much discussion throughout these briefs you look you see section of the stock purchase agreement section eight i believe in it talks about terminations it talks that terminations of the agreement which applies broadly to the entirety of the nine compete agreement in terms of that hit references leaving if dr make it work to leave the practice it talks about withdrawal it talks about terminations it has a separate area that are plies pacifically to expulsion it's a terminology that has been put into place to to apply to many different scenarios of voluntarily leaving the corporation and in addition specifically to expulsion  terms of their right if you think about their application to be a fact that if you if you go out and you file a twelve fifty six there and dr make it was the first and one of the persons who initiated this originally she was the person who signed for   in this scenario would would provide a windfall i mean essentially it would allow a person to enter into a contract and say that they are going to be bound by the non computer agreement but subsequently if they choose to withdraw under different terms then they're not bound if they if they come in and it said originally if they did withdraw under the terms of the dream and that six months was the frame so would that mean that if it five months in two weeks you left that you wouldn't be bound or if you this matter i mean it would suggest that there wasn't back intentions of bad faith when it was entered into because otherwise it would allow a party to not comply come in and leave and in the middle of the night basically without any notice and then never have to comply with the n compete and interestingly enough dr may kiss not only was allowed to withdraw from the corporation through the twelve fifty six but she was actually compensated for those shares when you think about that through the twelve fifty states she was compensated for the share she would provide a value for that to suggest that because it is a twelve fifty six action that she should not have to comply would produce irregular results i mean that would say then that somebody who does leave does the you know six months and doesn't get purchased it doesn't have a buyout until a later date which is what the ask a provided for under different circumstances that person would be bound that person would not be able break just within that area for the limited amount of time but a person who goes down to twelve fifty six action of their own accord alternately is able to to get without sorry par ultimately would not have to comply with the nine p they just wouldn't provide a regular result so it would encourage people to act in bad faith and to find a reason to not have to comply with those requirements simply do not have to comply with  think she did olen terribly so an argument they actually didn't voluntarily leave is clearly not supported by the record and evidence in this case she initiated the twelve fifty six action and not only that in august of two thousand and five she chose in violation of the interim management agreement to leave the building in facility for gingrich p c s and move across the street to autumn oaks and that was not something that was agreed to by the parties there and specifically sorry say that my you can the motions may be filed together doesn't say they must be filed together and the two six to night to six thousand nine hundred eighty four motion was simply that this action is barred by the prior action based on the doctrine of race to try to make collateral estoppel what's important about the lecky cases it was found it was in the same district as the martin case and in adopted the rule of the law the case that we all think should be applied that issues of facts and matters concerning the merits of a controversy between the parties which were presented to the white cases which were presented to but not decided by the appellate court are not covered by the law the case in this case the argument about the contract was neither presented to are ruled upon by the and unless you have any questions i think it's clear that the law of the case doesn't apply was right you mentioned just justice to what it would be you it would put it under the burden on the on the party prevailing they got to think about covenant not to compete so this is applicable from the date of such terminations that such terminations can only have meaning if it applies to the term addiction of withdrawal and it's not a global covenant not to judge in the twelve fifty six action could have decided not to impose a restrictive covenant and he didn't have to give any reason for it and he didn't have to make all these findings about reasonableness restrictions which by the way was a less restrictive covenant they were seeking that but he didn't need to make those findings he could have ruled without making those so those were necessary decisions so they didn't come under the doctrine of collateral estoppel talk about only have meaning if it applies to the withdraw and ask a confirms that when it says if your expel the covenant not to compete israel is comes back in and there would be no reason for  strictly construed you have to be right on the button if you want to force the restrictive covenants and if there's any ambiguity it's construed against enforcement of the restrictive topic i don't think the court needs to get there because i think risk of the trial court in that decision so let me turn to the issue of value because she says what document gift got compensated for her share which is absolutely right she did it kind of compensator for shares when she when so documented kiff when she got bought out of the corporation the first time was bought out with no value in this corporation is as if there had been a restrictive covenant against dr midcap so she if if you if you don't adopt our interpretation of a contract you have to totally risk disregard the words such in f or from the date of such terminations and you have to totally disregard the provision and i think about the restrictive covenant is applicable so i think there's and we didn't even talk about the issue preclusion argument that we've been so so we don't get to the another rule hopefully you'll affirm the trial court we won't be here again but we did get to the issue of our second basis for a motion for summary judgment so i don't want to leave that on a draft because judge mudd you could found that he didn't need to go to the second basis over a motion for summary judgment which was based on all the judicial emissions and based on based on all of the issue preclusion we were entitled to summary judgment which is a different argument than boring the whole face under to nineteen eighty four and that's adequately briefed in both of our briefs that the issue but we don't want to we don't want to just ignore the fact that that's also out there and also theoretically in front of changes in term any of the partners that it also discusses as we as we've said for the withdrawal of the shareholder but i'd like to turn to paragraph number four and if we're talking about the use of words and consistent use of words and the fact that each and every word needs to be given relevance because it's there for a particular reason if you in fact you go to the fourth line there's a sentence that begins and exception shall be made for christin under the procedures that were then number two it doesn't say if she's expelled a number or number eight it simply says if she leaves and the fact of the matter is that by filing the twelve fifty six section and thereafter an august two thousand and five moving to another facility directly across the street she she left the corporation in and specifically that wording is directly a political to dr make it it's particularly reference solely as to document it so the position that she did not withdraw or voluntarily leave from from the corporation and should not be should not be given back here additionally there's no case law that's been presented here that sat is because it was a twelve fifty six action that the ninth repeat would not apply here is no cited to the canfield case the sheer case that give different situations that apply to doctors who are practicing in the rockford area another one with a physician practicing in the chicago land area where similar restrictive covenants were are called for both of those session additionally if you take a look to this this own court decision on a prior nine compete in the shuffle case that was where a geographic limitation even more significant than the  one contemplated in this case was upheld which was a five year and fifty miles from any city where that accounting firm had a potential office located or had in office locations so i think that those are all things that must be taken into agreement facts we're going to rule in this fashion and but it's specific and says but see our prior decision in martin where we were ruled under those set of facts that the law of the case did apply so i think that that's telling it's not a situation where it's been overruled it specifically says under a different scenario different facts in martin we ruled this way and here our case is akin to martin it is like the martin case it is it is very very similar to the martin case as compared to the linsky case where it was as i discuss