on behalf of the fourth district appellate court we think dean smith ministration the faculty and of course the students for providing us the opportunity to do orals here and champagne we first case for one zero zero four four three counsel for the appeal that we filed pursuant to only supreme court rule three zero seven by way of background the police have been this particular case very reeves operated receives and see the chemical company in january he filed a verified complaint in mclean county and also filed a request for a temporary injunction that proceeding went to a hearing on february third before judge rob on that basis she conducted a evidentiary proceeding she looked at the allegations of the verified complaint and also the affidavit of mr reeves that was filed in conjunction with the motion for  also reviewed what i would call a non disclosure agreement it's a two page document that's referenced in each party's brief it was actually included in the trial court record but by some error was not included in the appellate record your honour's do you have copies of that nondisclosure agreement and in the appendix to my brief and also in the appendix to mr patterson's brief that two page non disclosure agreement is really what brought the parties to the mclean a county trial court on the motion for temporary injunction in response to the motion for the temporary injunction mr ramp filed an affidavit of his own articulat both of those individuals were farmers in the mclean county area and they in their affidavit set forth how they became affiliated with mr lampe after he left reeves chemical company after considering those  considering the arguments of counsel judge robb determined that the the customer list of mr reeves as well as the information about the customers that mr  been exposed to during the course of the time that he worked for mr reeves was in fact confidential information during the course of that proceeding on february third after the grant of that injunction i essentially indicated to the trial court i wasn't certain going forward how mr rampal was able to conduct himself as a business person in the mclean county area because essentially we had no specific directives from the trial court as to what equal confidential information i had certainly argued based on this court's springfield coin case that a customer list standing alone or information of valid customers preference customers finances the customer's crops in this particular case was not confidential information as determined by this court in springfield killing and in the springfield coin case my assertion is that this court took a look at as a precursor as a preliminary consideration to the legitimate business interests asked what constitutes confidential information the state of illinois i would assert to your honor's that that is the consideration that the trial  erred in making at the february third hearing and also the trial court erred in considering in denying our motion to dissolve the injunction which was heard by judge hers asking on may fourteenth i would honor's that the bases of our appeal goes to the granting of the temporary injunction and the failure of the trial court to dissolve that injunction in the subsequent hearing on may fourteenth the confidential information determination i would assert to your honor's is a determination that is based upon the type of information that came into the hands of my client bradley have over the course of the two years that he worked for leaves mr ramp was an agricultural student i c u he owned his own agricultural business prior to affiliating with mr reeves he had an application business he had applicators license he was raised on a farm he had a wealth of knowledge in his head before he even walked through the door at reeves and rhea reeves and seed chemical company after a period of time after mr ram served as a laborer for mr reeves mr reeves kind of developed him toward a sales and and said you're now going to be a salesman for me i want you to sign this nondisclosure agreement and i would ask your honour's to look at the verbiage of that nondisclosure agreement and then also look at the interaction between a ramp and receives that developed over the course of their relationship i think it's extremely similar to the relationship between the middle man who worked for the springfield coinage gallery and the business owner in that instance and this court said before you even got to the analysis of applying the legitimate business interest test and determining whether or not our strict of covenant was in forcible in illinois this court first looked at is this the kind of information that we're going to be in the business of protecting so i think foremost we have to determine is the information that the trial court in mclean county has now precluded mr grant from utilizing the kind of information that the appellate court is going to say is protectable information within the state of illinois even aside from the terms of the nondisclosure agreement first under the analysis that occurred in springfield point are we going to place  protectable veil over customer lists and customer information that is available to the general public in the public domain i would a certain your honour's that your honour's that this is a farm community an agricultural community and that i as a living gator if i have a case involving crop damage or infestation or spider mite damage i might go to the extension of university of illinois or the farm bureau in mclean county find out who the local farmers are the nature of the soil that they have on their farm ground the type of seed that they plant the yields that they obtain all of that information is available in the public domain to me as a lay person and it has to be that way because of the federal crop programs that require farmers to make that information public so i would  all public information and certainly under the principle articulated in springfield point that information would not be protectable so we don't even have to get to whether or not a restrictive covenant i enforceable because at the front end we're not going to give some special protection to that kind of information counsel at the trial court and in fact judge disaster both determined that the sunbelt rental case that also came before your honor's in a fact overruled this court's decision in springfield point i would assert that certainly with respect to this court's application of the legitimate business interest analysis that is no longer the proper analysis to apply by a court to our restrictive covenant in the employment agreement sense monte and the supreme court's illumination that now in illinois we use time and territory and the reasonable miss of that to determine whether or not a restrictive covenant in an employment agreement is going to be valid and in forcible in the state of illinois but i would assert to your honor's that the fact that sunbelt rentals shows the time and territory reasonable n'est analysis over the legitimate business interest test does not preclude this court from or any court in illinois from going forward and applying the principles and considerations that  in springfield point in determining what are we going to protect in the state of illinois i wouldn't assert that the office mate case that was cited by this court in springfield coin is a clear example that that particular principle had merit even before it was joined together with a consideration of the legitimate business interest test that the principles articulated in office made i think very closely also in line with the facts here in that particular situation it was a salesman for an office store and the appellate court said that we are going to examine the day to day relationship between the sales person and this office store the customer that this salesperson encountered and the manner in which office mates generated and ran their business and the court in the office mate which was cited by this court in springfield point said we're not going to protect information that this sales person learns in the course of their affiliation with their employer the office mate case said that there are certain things that people learn in their day to day job as they apprentice that local businesses they learn great they have experience they learn certain particulars about how to interact with customers how to be salespeople and the principle that office mates articulated it was let's examine it is it a professional service situation or it is a sales service situation if it's sales we're not going to protect that information that is learned in the course of the sales here mr reeves is the one who categorized brad lamm as a salesman mr reeves is the one who said it was strictly sales i would assert to your honor's that even if we don't look at the non disclosure agreement mr reeves is not able to protect the information the customer information or the customer list information he is seeking to protect because mr weigh up learned that in the course of being a salesman and under officemate or under springfield point articulated in the non disclosure agreement specifically harve out customer lists in this instance there are eight exceptions listed in the four corners of that nondisclosure agreement and the first two essentially say we're not going to protect confidential information if it's available in the public domain if it was generally known by others in the industry so i would assert your honor that yes the definition of confidential information as these two parties contracted includes a multitude of things including it specifically says customer list but if you go on to those exceptions and there are eight of them i would assert that in this instance the trial for went way out of the four corners of that agreement confidential information to include a customer list or information that belonged to the customer when those very specific exceptions were contracted for and were negotiated between the parties so in this instance when mr graham signed this agreement in two thousand and seven i believe that he from the writings of that document which was created by the plaintiff in this case understood that if there are a very particular idea that is or intellectual property or processes that mr reeves himself develops that's something that's going to be out of bounds for me when i leave his employ but if you read through these very specific exceptions i'm certain that anybody who read that back at the time understood that any information he had in his head before he walked through the door and his general experience as a sales person or any information that he could learn after he laughed by doing some independent study  independent assessment of the information in the public domain he felt was free game and i think pursuant to the written agreement the non disclosure agreement he was able to do that i think it's extremely important in analyzing this case against sunbelt rental or against the other supreme court cases preceding monte that here we don't have a non solicitation agreement we don't have a non compete agreement in this case so mr ramp never signed up that he wasn't going to compete against mr reeves mr ramp never signed up but he wasn't going to try and so this it other individuals the only thing mr rampant gave up in signing this particular non disclosure agreement was he using mr reeves confidential information that was not available and discoverable to others when he left that business and moved on to continue his own business this agreement is reflective that m reeves knew that both of these gentlemen had independent businesses when they first associated together and mr reeves understood that they at some point might be polling their association apart again and the only thing that he structured in this agreement to protect was the information that was confidential that was secret and that was maintained in a secret fashion worked for mr reeves with respect to further analysis even beyond this from field point of the office needs case if this court decides that your decision in sun voids that particular task that was articulated about how we determine confidential information i would assert to your honor's as i mentioned in my brief that we have a statutory vehicle in place in the state of illinois  assists courts on a red hiller basis with determining exactly what is a trade secret and many many of the cases that developed under the only trade secrets act have to look at similar definitions of confidential information like the one that is contained in the nondisclosure agreement here and the courts have said regardless of the definition in the agreement we want to look at how all the parties manage their relationship when they were working together day to day so the trade secret statute sets out actually a two pronged did you make those argument to the trial court i didn't mention the trade secret protection your honor we did not cite to the specific trade secret statute but i utilized the prongs or the principles that are contained within the trade secret statute and i can only say that if i would have had more than a thirty six hour window to prepare for this so you know you have to be a slow thank you it's a little difficult without the light so i appreciate you posting thank you so with respect to what did we include when we when we saw it relief at the trial court level to oppose this injunction i did not specifically come in and with the trade secret statute but i did articulate the same defenses to judge rob and again to judge her as ascii because there's an entire body of case law in our state that is tied to that statutory provision that says you know if it's out in the public domain if it is discoverable by competitors if actually you have individuals who deal with more than just one business and i would assert that farmers deal with all kinds of seed people or all kinds of seed dealers if i'm a farmer in central illinois i might buy my seed corn from one particular dealer i might want my soybeans or my field corn from a different dealer this is the type of information that under the trade secret principles that have become statutory by virtue of trama law that has developed over time that in fact those things are not protected would not be protected under the trade secrets statute would not be protected under the principles articulated in springfield co and officemate and should not be protected by the plain language of the four corners of the non disclosure agreement i would assert to your honor's that the motion to dissolve the injunction should have been created and i would request that relief thank me please the court counsel our audience clayton patterson on behalf of the plaintiff happily very reduced doing business has received chemical there are two issues that i would like to address today before i go into those issues i wanted to touch base on counsel's argument regarding the only trade secret that counsel is correct that she did not specifically reference that act at the hearing but let's distinguish what hearing we're talking about the only trade secrets act and not come up with them before thirteenth hearing related to the motion to dissolve she did reference some of the principles that she refers to them at the original february third hearing before judge notwithstanding that  it's my client's opinion that the reference to the reliance on the trade secrets act is a red herring there is a distinction between the rights provided to an employer under the trade secrets act and the rights that an employer can secure for of self through a contractual agreement with an employee under the trade secrets act an employer only has a right in its trade secrets as that term is defined under the act notably the arguments employed by this court in springfield case as to the confidentiality problem of the legitimate business interest test track the analysis of whether something is a trade secret under the act and that is specifically stated at page five hundred five of the office mates case which is heavily relied on by this court in springfield case by using a restrictive company agreement an employer can protect confidential information for example a customer list or any other information that may not qualify as a trade secret under that act there is a preference in the state as indicated by the supreme court to allow parties to freely contract in this case the parties agreed on what the definition of confidential information is that definition included amongst other items financial information procurement requirements must emerge a list and business in contractual two he could have refused to sign the agreement however doing neither the appellant is now obligated to the burdens of the contract maintaining and not disclosing the confidential information or using the confidential information now i'd like to go to the original two arguments i had planned the first of those two issues would be with respect to the issues presented on appeal of those issues which of those does this court have jurisdiction under rule appeal on june fourteenth two thousand and ten that notice of appeal sought the reversal of the february ninth order which granted the preliminary injunction which was issued by judge robb the notice of appeal also sought the reversal of the may fourteenth order with respect to the february ninth order under three o seven a and a trying time decision the notice of appeal was not timely it was over ninety days late so this court would not have jurisdiction as to any issues that  with respect to that february ninth order as such the court should not consider that portion of the appeal with respect to the may fourteenth order the appeal was timely under the two hundred fourteenth notice of appeal however as i previously pointed out just because that appeal was timely of the may fourteenth order that does not open up the door to other issues that were not presented in the motion to resolve this is where the palin's appeal becomes confused if you look at section pusher section's who is seeking a reversal of the may fourteenth order however in this section appellant has presented an argument that was not raised in the motion to dissolve namely whether the agreement is enforceable to two it indefinite territory restriction notably that opposed to the february ninth order that way the relief being sought would line up with the arguments actually presented to the trial court i would further suggest to the court that section two of appellant briefs be dismissed as it relates to the february ninth ward or as being untimely or more over as it addresses issues that were not raised in the motion to dissolve it's a pelleas position that this court may only consider the applicant delivery of the confidentiality problem of legitimate business interest test the courts  identity the customer's procurement requirements the customer's needs that are developed over many years as set forth in the verified complaint the knowledge regarding the solutions for those specific needs had and somehow managed to secure identical customers and i well if if he went to the same wholesaler how is that protected by the confidentiality agreement he can go to the same wholesaler but what i think he did is took our information our agreement with their vendor agreement and the terms there in that were no go see it and then use that as a basis to try to negotiate his own agreement using the confidential information for a benefit that wasn't for my client but is there anything in the record that shows he actually did that or is that something you just assume that is something that has been alleged as the very plain supported by an affidavit at this point at that point the trial court wasn't looking at determining  that information base information about name several type crop type available in the public domain i don't believe it is certainly not and the capacity that my client had it where it was all the one place you cannot go to a phone book and find a complete list of my clients customers moreover you can't go to the phone book and find jane a farms or find that it is only partnership with three limited liability companies as partners or that it farms forty five hundred acres or that it's controlled by your fuckin down wheatley you're not going to find that in the phone book or the public record could you use the public record information to determine that i don't believe so i don't think you can develop the whole complete picture that my client had that was developed over many many years the problem i'm having with the contract that you or your client drafted is that it it seems to leave a lot of holes in it by the exceptions to the definition of confidential information usually we see non computer agreements with employment situations where it's you know if you leave our employee you can't work in this industry for a period of x number of years within a radius of x number of miles and that's that's the sunbelt case basically right but this doesn't really say that this agreement doesn't really say that it's it's excepts out so many things that in the nature of this business you can go out and compete and have base information whether you already know it because you were there or you can find it somewhere else that the the agreement may not apply well respect to the base information at the court to the tower oil and technology case that wasn't cited for this principle in one brief it was cited there in and that case basically said that you can through a confidentiality agreement the parties can agree to include what would be base knowledge that would in that base knowledge would not be protected under the only trade secrets act we have protocols of action for that and i don't necessarily disagree with that but here's the exceptions it was in the public domain at the time it was communicated to the recipient by the other party your client said these three farmers are my customers i know who they are their sort of type their needs so and so forth but you can go to the governmental offices extension office and with independent work find out the same thing it is entered the information into the public debate subsequence of the time it was communicated to the recipient by the other party through no fault of the recipient it's not quite applicable but still if you can find the information in the public domain now how can you prevent that information being used if you take a piecemeal approach to everything that's included under the definition of confidential information a specific name i could find anything as part of the public record look at the source curity records however we're not saying it's a piecemeal approach collectively all of the information i have regarding my client or my client's information that he has regarding his customers where they farm what they're looking to accomplish with their farm and what their moving on to the second issue whether this court's reaffirmed its holding in sunbelt rentals in rejecting the legitimate business interest test and adopting the time a territory test during the appellant's argument she indicated that consider well let's take a step back the religion of business interest exist if and one employer has a near permanent relationship with his clients are with his clients or two if the employee came to confidential information through his employment and use it for his own benefit for purposes of this appeal the only issue is the confidentiality problem which is a business interest test counsel indicated that it was not a precursor to the test that simply makes no sense at all the confidentiality analysis is one prong of the test it first started in the first district in nationwide services versus kohler and then it subsequently been cited and utilized by all of the appellate courts in illinois in deciding restrictive covenant cases however in two thousand and seven in the life test case this court struck the the test just a statement trace the history through the illinois supreme court decisions and noted that the lesson to be learned was courts at any level when confronted with the enforcement of a restrictive covenant should evaluate and this is the key word only the time and territory restrictions there are and if the court determines that they are not in reasonable then those agreements should be enforced without its territory restriction here and here there is an unlimited territory obstruction is that reasonable useless now confidentiality agreements can certainly have a territorial limitation but is not a requirement for the enforceability and i would note that specific issue was never raised in the motion to dissolve it was never raised at the hearing on the  injunction so argue it's not even properly before this court and that issue so you're saying opposing counsel did not argue the territorial restriction tested trial level yes that is what i'm arguing necessary to protect the privacy as i just mentioned appellant never addressed any of those issues at the february ninth hearing or the may fourteenth hearing but my client at those hearings we did address and argued that the agreement does not limit the pillock future career options and he should be held to the burden of that agreement and i would posit to the point that if the court decides that it continues to apply time and territory test without regard to the confidentiality prong of the dream and then it should  both the may fourteenth order and to the extent it gets to a february ninth or moreover if it goes to the substance of application of the test both the timeframe five years is reasonable it's not been objected to by appellant and the territory is not under reasonable and again it should uphold the trial court so in conclusion i would ask that this court dismiss those portions of the appeal for which it does not have proper jurisdiction which issues were not timely appeal five meanders in which we can become before your honor's on in iraq you tory appeal involving a temporary injunction one is if the injunction is denied one is if it is modified or granted or specifically the statute provides that we can seek interlocutory appeal when there is a motion to dissolve the injunction that is before the trial court here i do believe this case is very different than the trophy time case or the p n t would case i would stay to your honor's that my reply brief really was devoted to that issue because those cases are factually very different than here the trophy time case the injunction was denied i would suggest that after that thirty day period there wasn't anything left nobody could see anything to the appellate level and that's actually what the trophy time court sat the parties in that case filed a motion with the trial court after that thirty day period and there was nothing to resurrect because the motion had been denied in the trophy time case those parties should have sought interlocutory appeal on the denial in the pay into it case the reason the appellate court cited the party there on the jurisdictional issue is because the notice of appeal was defective i was very cautious in the drafting of the notice of appeal for m to make everyone aware that we were seeking review of the underlying injunction in the decision that was made and also seeking review of the motion to dissolve that was denied and i guess well i'm left to little puzzle that how this court kian examined the denial of the motion to dissolve the animal in which was granted on february ninth i think they go together i think that we that the time requirements before thirty days ran in the trial court before that granting of the injunction was converted in some way to a final determination we filed a motion to dissolve the injunction which were allowed to do under section eleven one of two and this was not a t r o under want to want it was a t it was a motion for a preliminary injunction under eleven one  two i don't have that statutory provision with me but i do believe that it gives us actually the right as a matter of right to seek to dissolve the injunction at the trial court we sought to do that within the thirty day period that was then set for hearing on may fourteenth a decision was made to stand by that original injunction and not dissolve it and then we sought a timely appealing counsel is acknowledged that that appeal was timely so i would assert your honour's that you do have jurisdiction of the two matters that are set forth in my notice of appeal very briefly to talk about a couple of issues raised by counsel in his comments he mentioned that i didn't raise that this agreement was drafted by mr reeves it clearly was and at the may fourteenth hearing and i have a particular page site i did reference to his honor judge does ask you that this agreement actually was drafted by mr reeves and that mr reeves has to rise and fall by his own drafting that page nine of the transcript on the may fourteenth hearing but i think more importantly counsel mentions you know they both have to live by this agreement my client has to live by the definition of confidential information that he signed up where there is only a confidential non disclosure agreement i think we don't even have to get to the time in territory or the legitimate business interest test because we can resolve this on the principles articulated in springfield  and office made regarding what is confidential i think if the information that mr reeves is seeking to protect is out in the public domain then my client's free to i think if there is information that is specifically protected like a formula or a solution then my client by virtue of this agreement is bound not to use that and then maybe there is a time interior torrie argument that i would make but the manner in which this came before the trial court was the plaintiff seeking to protect a customer list customer identity factors like soil what he plants and in particular a vendor agreement