## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Northwest Podiat

ry Center, Ltd. v. Ochwat, 2013 IL App (1st) 120458

Appellate Court Caption NORTHWEST PO DI ATRY CENTER, L TD., and GREGORY BRYNI CZKA, Plaintiffs-Appellee s, v. GARY OCHWAT and CRAI G W. HAL I HAN, De fenda

nts-Appellee s.

District & N o. First District, Third Division Docke t No. 1-12-0458

Filed May 8, 2013

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action to enfor ce a restric tive covenant af t er two podiatrists left plaintiffs’ prac tice and started a competing prac tice, the privileg es restric tion in the covena

nt, without any time limit ations, was g reater than

nece ssary to protec t plaintiffs ’ b u s i n ess i ntere sts, and the imposit ion of

a patient injunction without a temporal limit ation on both defe ndants was

an abuse of discretion, since there was no oral or written restric tion
preve nting one defe ndant from soliciting h i s former or curr ent patients and the restric tion imp osed by the court as to the second defe ndant

cre ated a restric tion wher e none was contemplated by the parti es; howeve r, the trial court properly en j oined defe ndants from providing service s to a third-par

ty manag ed car e provider with which plaintiffs had
an agree ment.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 10-CH-27642; the Hon. Kathlee n Pantle, J udg e, pre siding.

J udg ment Affir med in part a

nd reve rsed in par

t; cause r emande d.Counsel on

Appea l Robert H. L ang , of Thompson Coburn L L P, of Chicag o, for a ppellants.

Gar y P. Hollande r and David Fe ldman, both of Strauss & Ma lk L L P, of Northbrook, f

or appe llees.

Panel J USTI CE HYMAN de livered the judgme nt of the cour t, with opinion. Presiding J ustice Neville and J ustice Sterba concurre d i n the judgme nt and opinion.

OP INION

¶ 1 Def

endants, Dr. Gar

y Ochwa t and Dr. Craig Halihan appea l from the trial court’s grant of preliminary injunctive relief in favor of plaintiffs Northwe st Podiatry Center, L td. (NPC), and Dr. Gre g ory Br

y niczka to enfor ce the restric tive covena nts contained in Dr. Halihan’s employ ment ag ree ment and beca

use of defe ndants’ brea ch of their fiduciar y duties in setting
up a compe ting business. De fenda nts contest the trial cour

t’s decision to e njoin them from doing business with a third-par ty m anag ed car e provider without any temporal limit ation,
arguing neither defenda

nt was subject to a written restric tive covena nt that would prohibit this ac t i v i t y

. Def

endants also argue the trial court err ed in enjoining them from treating

curr ent or former NPC patients without temporal or g eographic restric tions. Def endants take issue with the trial court’s order that Dr. Halihan resign clinical privileg es at cer tain restric ted fac iliti es by enfor cing the privi leg es re striction in Dr. Halihan’ s employ ment agree ment, a restric tion the court found to be ambigu o u s

. Al t ernatively
, defe ndants argue that if the privileg es restric tion is found not to be ambiguous, it can only apply to 2 of the 10 restric ted fac iliti es. Def

endants also argue injunctive relief was not proper when money damag es as to defe ndants’ alleg ed tortious interfe renc e wer e defina ble. L astly
, defe ndants contend the trial
court e rre d in ruling that the corpor ate plaintiff’ s postbreac h profitability was irr eleva

nt. ¶ 2 We hold the trial court err ed by enter ing a preliminary injunction prohibiting defe ndants from treating plaintiffs’ patients and by enfor cing an ambiguous restric t i v e covena nt contained in one defe ndant’s employ ment agree ment.

¶ 3 BA CKGROUND ¶ 4 Northwe st Podiatry Center, Ltd., is a closely held I llinois profe ssional corporation that provides podiatric car e to individuals with foot and ankle problems. Dr. Gre g ory Br y niczka,

a podiatrist, founded NPC in 1974. Dr. Br y niczka is also the p re s i d en t and majority share holder of N PC, as well as a dire ctor a nd trustee. ¶ 5 NPC has six office locations: Niles, Wheaton, Aurora
, DeKa lb, Streamwood and South Elg in. E ach office has an office manag er, most of whom are long- term employ ees of NPC.

-2-Debr a Ficke nscher was the office manag er of the Streamwood office for 12 y ear s. Christine

Nudo was a

n employ ee of

NPC for 10 year s, 5 of which she was a n office manag er. ¶ 6 Dr. Ochwa

t worke d at NPC for over 20 y ear s. Dr. Ochwat was a vice- president, member of the board of direc tors and employ ee at NPC. Dr

. Ochwat owned 400 of the 1,086 issued and outs tanding share s of NP C
, ab o u t 37%. Dr. Ochwat had no restric tive covena nts with NPC. ¶ 7 Dr. Halihan beg an his emp l o y m en t wi th NPC in September 2006. Be fore starting , on J une 15, 2006, Dr. Halihan signe d an employ ment agree ment with NPC. The contra ct contained three separate restrictions: a noncompetition clause
, a privil eg es restriction, and a solicitation restriction: Noncompete Clause
“PHYSI CI AN covena

nts and agree s that he shall not enter into a ‘c ompetitive
prac tice’ ( as her eaf

ter de fined) at any

time duringthe per iod beg inning on the f irst day of employ ment and ending thirty -six (36) months afte r the date on which his employ ment terminates. The term ‘compe titive prac tice’ shall mean the full-time or part-time prac tice

o f p odiatric medicine, direc tly or indirectly
, alone or with another person or perso n , partne rship, corpor ation, or any other entity within a five (5) mile radius of the O ffice s or any office of CORPORATI ON.”

Privilege s Restriction
“PHYSI CI AN further covena nts and agree s that should h e l ea v e the employ of CORPORATI ON t h at h e will surre nder his clinical privileg es at any hospital or ambulatory surg ical treatment cente r at which an empl o y ee of CORPORATI ON then holds clinical privileg es.” Solicitation R estriction
“PHYSI CI AN further agree s that he will not, direc tly or indirectly for himself or on behalf of any other person, partne rship, corpor ation, or any other entity solicit, divert or take awa y business or patrona g e o f t h e C ORPORATI ON during the term of PHYSI CI AN’s employ

ment and for thirty -six (36) months there afte r, whether or not he has paid CORPORATI ON for the privileg e of enter ing into a competitive p ra ct i ce (as define d above) .” The employ

ment ag ree ment had a three -year term with a provision that the term could be extended “by mutual consent.” The parties never enter ed into a written ex t en s i o n of the employ ment ag ree ment. ¶ 8 In Marc h 2010, Dr. Ochwa t told Dr. Br

y niczka that he would be retiring and moving to California. On April 19, 2010, Dr. Halihan submitt ed his letter of resignation t o NP C
, eff ective J une 30, 2010. Dr

. Ochwat a nd Dr. Halihan left NPC a nd now work at Advanc ed Foot and Ankle Specialists (AF A), started by Dr. Ochwat in 2010. AFA ’s two office s are located in Hof

fman Estate s and Elg in. ¶ 9 Ms. Ficke nscher ended her e mploy

ment with NPC on J une 22, 2010, to work f or AF A in both its office s. Ms. Nudo also left her employ with NPC t o work for

AFA

.

-3-¶ 10 NPC soug ht inj u n ct i v e re l i ef cl ai m i n g Dr. Ochwat and Dr. Halihan brea ched the ir

fiduciar y duties to NPC by eng ag ing in sec re t d ealings, setting up AFA
, soliciting other employ ees to terminate their employ ment with NPC, misappropriating NPC patient rec ords, and inducing Northwe st Suburban Independe nt Practitioner’ s Association (I PA) to te r mi n a te its ag ree ment with NPC. Plaintiffs also alleg ed Dr. Halihan violated postemp l o y m ent restric tive covena

nts. ¶ 11 On J une 30, 2010, the tr i al co u rt granted, in part, plaintiffs’ motion for a tempora ry restra ining order
, enjoining defe ndants from treating any individual who was a curr ent or former patient with NPC from J anuar y 1, 2009, throug h J une 30, 2010. Def endants did not appea l from the tempora

ry restra ining or der. ¶ 12 T h e t ri al court held a hear ing to deter mine whether to g rant plaintiffs’ reque st for a prelim inary injunction. On August 9, 2010, the trial court limit ed discovery in the case , prohibiting defe ndants from conducting discovery reg arding plaintiffs’ lost profits and
money damag es. L ater , the court g rante d defe ndants’ motion for a clar ifying order
, allowing discovery to proce ed on all issues. Def endants serve d subpoenas on NPC’s cer tified public

acc ountant, Ronald Dell, and NPC ’s out side counsel, James Huck, whose firm dra fted Dr

. Halihan’ s employ

ment a g r e ement. Plaintiffs succe ssfully stay ed the depositions. Def endants filed a discovery motion to compel on May 26, 2011, which was denied. Defe ndants wer e unable to pursue any informat i o n re l at ing to the financial impact of their conduct on NPC befor e the tria l court’s issuanc e of the preliminary injunction. ¶ 13 On J anuar

y 17, 2012, the trial court g rante d most of the injunctive re l i ef s o u gh t b y plaintiffs. The trial court held NPC was entitl ed t o enfor ce the restric tive covena nts in Dr. Halihan’ s employ

ment ag ree ment and found that t h e brea ches of fiduciar y duties by both defe ndants wer e ong oing a nd, thus, warr anted injunctive r elief. ¶ 14 The trial court deter mined that beca

use NPC is a closely held corpor ation and Dr. Ochwat

was a 37% share holder, as well as an office r, direc tor and trustee, he “owe d a fiduciar y duty
to th e principals of NPC to deal fairly
, honestly
, and openly .” The trial court held the fiduciar y relationship prohibited “all fo rms of tricker y , secr et dealing s, and pref ere nce for self in matters r elated to a nd connec ted with the principa l’s business.” ¶ 15 The trial court found Dr. Ochwat be g an “conspiring ” with D r. Halihan to f orm AFA in J anuar y and Fe bruar

y 2010, in violation of their fiduciar y duties to NPC. In Marc h 2010, Dr. Oc h wa t informed Dr. Br y niczka he intended to resign. In doing so, Dr. Ochwa t l ed Dr

. Br y niczka to believe that he was g oing to retire and move to California, not start a competing
prac tice. The trial court found it sig nificant that Dr. Ochwat ne ver informed Dr. B ry niczka of hi s intentions, even thou gh h e was laying the groundwork for his competing prac tice at the time. Dr. Ochwat solicited NPC employ ees as ear ly as J anuary o r Fe b ru ary of 2010, including Ms. Ficke nscher
, Ms. Nudo, and Dr. Mi ch ae l Di Choso, who chose to rema in employ ed by NPC. Dr. Ochwa t informed 40 to 50 NPC patients ab o u t h is intent to start a compe t i n g prac tice. The trial court further found Dr. Ochwat misused corpor ate assets, employ ee time, a

nd company

equipment to set up AF A. ¶ 16 The trial court found Dr. O chwat interfer ed with the contra ct NPC ha d with N orthwest

-4-Suburban Independe nt Practitioner’ s Association, a manag ed car e provider that supplies

g roups of individuals with medical car e and then subcontrac ts some of that car e to specia liz ed medical providers like NPC. In eac h contra ct term, I PA only contra cts with one profe ssional corporation that provides podiatry service s in the northwest suburbs. On Ma y 1, 2008, NPC enter ed into a participating phy sician agree ment with I PA to provide podiatric service s. NPC rec eived about $300,000 in a nnual reve nues from the agree ment. The initial
term of the agree ment was one y ear , with automatic one-year rene wals unless the agree ment

was terminated. On May 28, 2010, I PA se nt a notice ter minating the a g ree ment with N PC, eff ective September 1, 2010. I PA stated the termination was not due to any failing on behalf of NPC. The trial cour

t held Dr. Oc hwat tried to “ usurp NP C’s corpor ate oppor tunity with I PA by underc utting the capitation amount char g ed by NPC.” Dr. Ochwa t used information he lear ned in his capa city as an office r of NPC to offe r podiatry service s throug h AFA to I PA
at a lower rate than NPC char g ed. Eventually Dr. Ochwat sugges t ed I PA continue its relationship with NPC, but only afte r he was confr onted with potential liability for his interfe renc e. ¶ 17 Def

endants raised sever al challeng es to the enfor cea bility of Dr. Halihan’ s employ ment ag ree ment. Def

endants argued the employ ment agree ment ended befor e Dr

. Halihan’s depar ture from N PC

. Pa

r a gr a p h 1 0 o f th e employ

ment agree ment provides that the agree ment “may be rene wed for additional twelve (12) month periods by mutual consent of the parties” and that the ag ree ment “may be terminated at any time by mutual written agree ment by the parties.” ¶ 18 T h e t ri al court found Dr. Br y niczka testified cre dibly that the parties extende d t h e employ ment ag ree ment acc ordingto its t erms. In the summer or fall of 2009, NPC offere d Dr. Halihan the opportunity to buy into the prac tice; Dr. Halihan reque sted time to consider the proposal. Dr. Br

y niczka testified that at that time, he disc u s s ed with Dr. Halihan the extension of his employ

ment agree ment. Dr. Br

y niczka testified Dr. Halihan acknow ledg ed, with a head nod, his comment t h at i f Dr

. Ha lihan did not want to buy into the practice, he could continue to be a

n employ ee by extending his e mploy ment agree ment. The trial c ourt h eld the extension of the employ ment agree ment was not require d to be in wr i t i n g b y t h e plain terms of the ag ree ment; writing was only nece ssary when the parties mutually agree d to terminate the a g ree ment. ¶ 19 The trial court held Dr. Halihan “conspire d” with Dr. Ochwat to brea ch fiduciar y duties. The orig inal and all copies of Dr. Halihan’ s employ ment agree ment disappea

red from NPC’s office s. When plaintiffs soug ht a temporar y restra ining order
, Dr. Halihan filed an aff idavit denying the exis tence of the employ ment agree ment. L ater , when asked about the employ ment ag ree ment, defe ndants took the fifth amendment. The trial court held that based

on the fac ts, it was rea sonable to conclude Dr. Halihan conspired with Dr. Ochwat to destroy the employ

ment ag ree ment. Plaintiffs we re ab l e to obtain a copy of the employ ment ag ree ment beca

use it was submitt ed by Dr. Halihan during his deposition in connec tion with unrelated litigation. ¶ 20 The trial court relied on other evidenc e, including Dr. Halihan’ s own corr espondenc e, to

-5-support its conclusion that the employ ment agree ment was extended. Dr. Halihan ref ere nced
t h e t erms of the employ

ment agree ment in letters he signe d when he notified NPC i n t h e spring of 2010 that he was terminatinghis employ ment. The trial court held Dr. Halihan’ s denial that he ag ree d to extend the employ ment agree ment lacke d cre dibilit y

. The trial court found it sig nificant that Dr. Halihan lied about the exis tence of the employ ment agree ment in response to the plaint i ff s’ petition for a temporar y restra ining order

. The trial court conclude d that had Dr. Halihan actua lly believed the employ ment agree ment did not apply beca use it had expired on its own terms, he would not have lied about its ex istence. ¶ 21 The defe ndants also challeng ed the enfor cea bility of the restric tive covena nts. The trial
court held the time restric tion of 36 mon t h s wa s rea sonable, holding the plaintiffs offe red

cre dible evidenc e that ittakes NPC at least thre e year s to establish the patient base at eac h of its off ices. The trial court also found rea sonable the g eographic restric tion of a five-mile radius. The trial court held that g iven th e h ea v ily populated Chicag o metropolitan are a, restric ting Dr. Halihan from prac ticing medicine within the five-mile radius did not deprive him of employ

ment. ¶ 22 The parties also disputed the pri v i l ege s re s t ri ct i o n i n Dr

. Ha l i han’s e mploy ment ag ree ment. Def

endants argued the restric tive covena nt is ambiguous beca

use it does not have

a temporal component. The trial court agree d and allowed both sides to prese nt evidenc e to deter mine the intent of the parties. Plaintiffs introduced the testimony of Dr. Br y nczka, who stated that all three restric tive covena nts wer e intended t o b e b ound by the 36-month temporal limit ation. Def

endants did not offe r their own testimony to counter Dr. Br y nczka’s. The trial court found plaintiffs’ evidenc e was cre dible and held that the 36-month temporal limit ation applied to the privileg es re striction as well. ¶ 23 Alternatively
, defe ndants contende d the restric tive covena nt s h o u l d n o t h av e b ee n enfor ced beca

us e p l aint iffs committed a materia l brea ch of the employ ment agree ment beca use of a billing prac tice they used. Def endants c hara cter ized the billi ngprac tice as the “Ada m B illing Practice .” Plaintiffs, on the other ha nd, char acte rized it as the “new doctor 1 billing prac tice.” The billi n g p ra ct i ce involves billing Medica re and insurers for service s perf ormed by new doctors under the names of doctor s who have billing numbers. Eac h individual doctor rec eives a billing number, which can take months to rec eive. I f the billing
prac tice is not employ ed, the new doctor must wait until her or she rec eives a billing number and then it can be applied retroa ctively to a date chosen by NPC, either the doctor’s start date

or the first date he or she rende red service s at the office for which the billing number applied. ¶ 24 The trial court held the billing prac t i ce d i d n o t co n s t itute a materia l brea ch of Dr. Halihan’ s employ

ment ag ree ment or the unclea n hands doctrine. The evidenc e showed the billing prac tice had been used for y ear s with the knowledg e and consent of Dr. Ochwat, and that Dr. Ochwat was responsible for the billing and coding at NPC. The trial court held Dr. Br y niczka testified cre dibly that h e and Dr. Ochwat established the new doctor billing

“Ada m ” re fe rs to Dr. Adam Brynic zk a, Dr. Gre gory Brynic zk a’ s son , who j oin ed NPC af te r 1 Dr. Ha li han

.
-6-prac tice toge ther. Dr. Br y niczka testified that toge ther they made inquiries to confirm the
prac tice was acc eptable. The court also held Dr. Halihan was fa m iliar with the prac tice beca use he used it at a previous place of employ ment and never objected to its use at NPC. T h e t ri al court held, “[i] t is appar ent from all the evidenc e that Def endants are raising t h e

new doctor billing p ra ct i ce as an afte r-the- fac t justification ag ainst their own wrong ful conduct even though the new doctor billing prac tice had nothing whatsoeve r to do with their conscious and delibera

te decision to form AFA and improperly co mp et e wi th NPC.” The trial court reje cted defe ndants’ argument that the billing prac tice was a materia l brea ch of Dr. Halihan’ s employ

ment ag ree ment and their conte n t i o n that the doctrine of unclea n hands applied. ¶ 25 The trial court held NPC was enti t l ed t o enfor ce the restric tive covena nts contained in Dr. Halihan’ s employ

ment ag ree ment. The court found the brea ches of fiduciar y duties wer e ong oing and that the temporar y restra ining order is all that prev en t ed the defe ndants from actively soliciting patients from NPC. But, the trial court denied plaintiffs reque st to have Dr. Ochwat “prohibited from soliciting, hiring
, or enter ing into busin es s wi t h any curr ent or former employ ees of NPC, incl uding Dr. Halihan.” The trial court held the balanc e of hardships favor ed Dr. Halihan, finding NPC would suffe r minimal, if any , h ar d s hip if Dr. Halihan continued his employ ment with AFA
, espec ially in light of the restric tive covena nts enfor cea ble ag ainst him. ¶ 26 The trial c ourt enter ed the f ollowing r elief:
“A. Dr. Ochwa

t and Dr. Halihan are prohibi t ed
, either direc tly or indirectly
, individually

or throug h any

other pe rson or e ntity

including Advance d Foot and Ankle Specialists, from enter ing into any agree ment with I PA or from treating any patients ref err ed by I PA;
B. D r. Oc hwat and D r. Ha lihan are order ed to return to NPC all records of patients of NPC, and ar e also orde red not to re tain the orig inals or copies of such re cords;
C. Dr. Ochwat is prohibited from soliciting, hiring
, or enter ing into business with any

curr ent o r former employ ees of NPC, except Dr. Halihan, Ms. Ficke nscher
, and Ms. Nudo;
D. Dr. Ochwat and Dr. Halihan are prohibited from trea ting any curr ent or former patients of NPC:
E. Dr. Halihan is prohibited from soliciting, hiring
, or enter ing into business with any

cu rr en t or former employ ees of NPC, except Dr. Ochwat, Ms. Ficke nscher
, and M s

. Nudo;
F. Dr. Halihan is order ed to resign his clinical privileg es at the Restricted Fa cilities; and
G. Dr

. Halihan is prohibited from eng ag ing in the prac tice of podiatric medicine, direc tly or indirectly
, alone or with a ny other person or entity
, within a five-mile radius of any NPC office, f

or a pe riod of thre e year

from June 30, 2010.” ¶ 27 Def

endants timely

appea led.

-7-¶ 28 ANALYSI S

¶ 29 In revie wing an order g ranting or denying a preliminary injunction, “ ‘we examine only whether the party seeking the injunction has demonstrated a prima facie case that there is a fair question conce rning the exis tence of the claimed rig hts.’ ” Mohanty v. St. Joh n Heart Clini c , S.C.
, 225 I ll. 2d 52, 62 (2006) (quoting People ex rel. Klaeren v. Village of Lisl e , 202 I l l

. 2d 164, 177 (2002))

. In doing so, we will only reve rse wher e the trial court abused its discretion in holding as it did. Mohanty , 225 I ll. 2d at 63. Whether injunctive relief should be g rante d to enfor ce a restric tive covena nt not to compete in an employ ment contra ct depends on the validity of the covena nt, the deter

mination of which is a question of law. Mohanty
, 225 I ll. 2d at 62 (citing Retina Servic es, Ltd. v. Garoon
, 182 I ll. App. 3d 851, 856 (1989))

. ¶ 30 A prelimi nary injunction is not meant to resolve the merits of the case, but to prese rve the status quo until the merits can be decide d. Mohanty
, 225 I ll. 2d at 80. The party seeking the preliminary injunction must establish four fac tors befor e the injunction will be g rante d: “(1) a clea

rly asce rtained rig ht in need of protec tion, (2) an irrepa rable injury in the absenc e of an injunction, (3 ) n o ad eq uate reme dy at law, and (4) a likelihood of succe ss on the merits.” Mohanty
, 225 I ll. 2d at 62 (citing People ex rel. Klaeren v. Village of Lisl e , 202 I ll. 2d 164 (2002), and Callis, Papa, Jack stadt & Halloran, P.C. v. Norfolk & W estern Ry. Co.
, 195 I ll. 2d 356, 365 (2001))

. The court must also deter mine if the balanc e of hardships to the parties supports the g rant of a preliminary injunction. Keefe- Shea Joint Venture v. City of Evanston , 332 I ll. App. 3d 163, 169 (2002). ¶ 31 In opposition o f a preliminary injunction, defe ndants raised various challeng es to the validity and enfor cea

bility of the restric tive covena nts in Dr

. Ha lihan’s employ ment ag ree ment. The trial court reje cted the defe ndants’ challeng es. On appea l, defe ndants ag ain

co n tend plaintiffs are not entitled to a preliminary injunction to enfor ce the restric t i v e

covena nts. Def endants contend Dr. Halihan’ s employ ment agree ment was not extended afte r it expired by it s wr i t t en terms. Alternatively
, defe ndants contend that if the employ ment ag ree ment was in pla ce, plaintiffs materia lly brea ched the employ ment agree ment, there by relieving defe ndants o f t heir obligations under the restric tive covena nts. Def endants also
cont en d the restric tive covena nts in Dr. Halihan’ s employ ment agree ment may not be enfor ced beca

use they are overly broad in their temporal and activity restric tions a nd, thus,

unrea sonable. Specifica lly
, defe ndants contend the trial court err ed by (1 ) requiring Dr. Halihan to resign clinical privil eg es at 10 restric ted facilities by enfor cing a restriction the trial court foun d t o be ambiguous; (2) enjoining defe ndants from treating any curr ent or former patients of NPC without any temporal or g eographic al restric tions; and (3) enjoining defe ndants from doingbusiness with I PA without any temporal limitations.

¶ 32 Ex piration of Dr . Halihan’ s Employ ment Ag ree ment ¶ 33 Dr. Halihan’ s employ ment agree ment has a three -year term. Plaintiffs admitted that the employ ment ag ree ment was to terminate by its written terms in May 2009. No written extension of the employ

ment agree ment was made. Def endants argue Dr. Halihan’ s ref usal

-8-to become a partne r at NPC does not constitute an extension of his employ ment agree ment. Plaintiffs cite Dr. Halihan’ s 2010 letters and his aff idav i t t o s up port their claim that the parties extended Dr. Halihan’ s employ ment agree m en t. Def

endants argue the letters and aff idavit are irrele vant beca

use they wer e not in exis tence until afte r September 1, 2009, the termination date of Dr. Hali h an ’s employ ment agree ment and, there fore
, could not have extended the ag ree ment. Def endants contend that Dr. Ha l i h an’s employ ment agree ment could not be extended except by written agree ment signe d by NPC and Dr. Halihan, which did not occur. ¶ 34 We are unpersua ded by defe ndants relianc e on Bisla v. Parvaiz
, 379 I ll. App. 3 d 5 6 7 (2008), and Marhawa v. W oodridge Clini c, S.C.
, 339 I ll. App. 3d 291 (2003), as support for their argument that beca use an employ

ment agree ment must be extended befor e its termi n ation for its restric tive covena nts to be enfor cea

ble, that the restric tive covena nts contained in Dr. Halihan’ s employ ment agree ment ar e n o t enfor cea ble having not been timely extended. Neither case is fac tually s i milar. Bisla and Marhawa addre ss only a situation wher e the employ ment a gr e e me nt w a s ter

min a te d a n d
, th ere fore
, its noncompetition restric tions wer e no longe r eff ective. Her e, the trial court held the employ ment agree ment had not terminated when plaintiffs soug ht to enfor ce the restric tive covena nts ag ainst Dr. Halihan. ¶ 35 Ba sed on the evidenc e of rec ord, we ca n n ot say the trial court abused its discretion in finding Dr. Halihan’ s employ ment agree ment was extended by “mutual consent” as require d by the p l ai n t er m s of the ag ree ment and that althoug h other portions of the agree ment require d written notice, the extension provision of the agree ment does not require written notice.

¶ 36 Privilege s Restriction ¶ 37 Def

endants argue the trial court improperly allowed parole evidenc e to supply “missing terms,” i.e.
, temporal and g eographic al limit ations, which makes this case differ ent from those cited by plaintiffs in which the evidenc e was a dmitted to construe the specific
, albeit ambiguous, languag e of the restric tion. W e agree

. ¶ 38 I llinois courts car efully examine postemploy ment restric tive covena

nt s b ec au s e they
operate as partial restric tions on trade

. Cambridge Engineering, Inc. v. Merc ury Partners 90 BI, Inc

. , 378 I ll. App. 3d 437, 447 (2007). To be found va lid and enfor cea ble, the ter

ms of the restric tive covena

nt must be “ ‘re asonable and nece ssary to protec t a leg itimate business in t er est of the employ er.’ ” Cambridge Engineering
, 378 I ll. App. 3d at 447 (quoting Lawrence & Allen, Inc. v. Cambridge Human Re source Group, Inc.
, 292 I ll. App. 3d 131, 138 (1997))

. Whether a restric tive covena nt is rea sonable is a question of law we revie w de

novo

. Mohanty
, 225 I ll. 2d at 63. In doing s o , we consider fac tors, including the hardship

cause d to the employ ee, the eff ect on the g ener al public, the g eographic and temporal scope of the restric tions, a

nd the activities restric ted. Cambridge Engineering
, 378 I ll. App. 3d at 447. Courts strictly construe and interpre t covena nts not to compete, and an y doubts or ambiguities must be r esolved a g ainst the restric tions. Marwaha v. W oodridge Clini c, S.C.
,

-9-339 I ll. App. 3d 291, 293 (2003); Bloomington Urological Associates, SC v. Scaglia
, 292 I ll.

App. 3d 793, 798 (1997). ¶ 39 Although the lower court’s judgme nt in granting or denying a preliminary injunction “is

acc orded great defe renc e, it must still be ex erc ised within the established lega l frame work for injunctive relief

.” Kanter & Eisenberg v. Madison Associates
, 144 I ll. App. 3d 588, 591 (1986) (citing Alexande r v. Standard Oil Co.
, 53 I ll. App. 3d 690, 698 (1977). “A restric tive

covena nt, assuming it is ancillary to a valid employ

ment relationship, i s rea sonable only if the covena

nt: (1) is no g reater than is require d for t he protec tion of a leg itimate business interest of the employ er- promisee, (2) does not impose undue hardship o n t h e empl oy eepromisor, and (3) is not injurious to the public.” Reliable Fire Equipment Co. v. Arredondo
, 2011 I L 111871
, ¶ 1 7. An employ er seeking to enfor ce the restric tive covena nt bear s the burden of showing that the full extent of the restric tion is nece ssary to protec t its leg itimate business needs. Health Professionals, Ltd. v. Johnson
, 339 I ll. App. 3d 1021, 1034 (2003). ¶ 40 Restrictive covenants are t o be st rictly construed and i nterpre ted by the courts and any ambiguities should be resol ved ag ainst the restric tion. Hagerty, Lockenv itz, Ginzkey & Associates v. Ginzkey
, 85 I ll. App. 3d 640, 643-44 (1980). “[B]eca us e wo rd s derive their meaning from the context in which they are used, a contra ct must be construed as a whole, viewingeac h part in lig ht of the others. ” Gallagher v. Lenart , 226 I ll. 2d 208, 233 (2007). I t is improper to deter

mine the parties’ intent by looking at a contra ct clause or provision in isolation. Thompson v. Gordon , 241 I ll. 2d 428, 441 (2011). ¶ 41 Whether a c ontrac t term is a mbiguous and in ne ed of construction is a question of law. Cambridge Engin ee ring, Inc. v. Merc ury Partners 90 BI, Inc.
, 378 I ll. App. 3d 437, 450 (2007). Only when terms are open to more than one interpre tation, extrinsi c evidenc e i s admissible to deter

mine the true intent of the parties. Cambridge Engineering, Inc.
, 378 I ll. App. 3d at 450. Contract languag e that is unambiguous must be g iven its plain and ordinary meaning

. Virginia Surety Co. v. Northern Insurance Co. of New Y ork
, 224 I ll. 2d 550, 556 (2007). ¶ 42 The trial court found the languag e of the privileg es restric tion ambiguous and, ther efor e, all owed the parties to prese nt parole evidenc e as to their intent. The trial cou rt ac ce p t ed plaintiffs’ evidenc e that the parties intended the 3 6 -m o nth restric tion also to apply to the privileg es restric tion. Ultimately
, howeve r, the trial court held the privile ges re s t riction contained in Dr. Halihan’ s employ men t agre ement require d Dr. Halihan to “re sign his clinical privileg es at the Restric ted Fa cilities.” ¶ 43 Def

endants contend the trial court should not have modified the restric tion, but instead, should have deter

mined whether to enfor ce it as it was written. We agree with defe ndants that as written, the privileg es restric tion is overbr oad beca use it does not contain a temporal limit ation. The contra ct languag e unambiguously supports defe ndan t s ’ interpre tation that when written, plaintiffs intended the privileg es restric ti o n not to contain a temporal limit ation. ¶ 44 Th e p ri v i l ege s re s t ri ct i on is set out in its own separ ate sentenc e in the employ ment ag ree ment. There is no ref ere nce to any temporal restric tion within that sentenc e. This stands

-10-in stark contra st to ref ere nces in both the competitive prac tice restric tion and the solicitation restric tion of both ge og raphic and tempora l limi tations. ¶ 45 We r ejec t the trial court’s conclusion that the languag e of the privileg es restric tion was ambiguous on its fac e and, there fore
, must now deter mine whether the languag e, as written, is reasona ble to protec t plaintiffs’ leg itimate business interests. ¶ 46 Restrictive covena nts “should be narr owly tailored to protec t only ag ainst activities that threaten the employ er’ s interest.” Lawrence & Allen, Inc. v. Cambridge Human Resource Group, Inc.
, 292 I ll. App. 3d 131, 140 (1997). Henc e, the restric tive covena nt will be found valid only if it is no broade r than nece ssary to protec t the employ er’ s leg itimate business interests. See Reliable Fire Equipme nt Co. , 2011 I L 111871, ¶ 17. ¶ 47 Ap p l y i n g t h i s s t andard, we hold the privileg es restric tion, as it rea ds by its p l ai n languag e, is g rea

ter than nece ssary to protec t the leg itimate business interest of plaintiffs and imposes an undue hardship on Dr. Halihan by requiring him to perma nently resign all clinical privileg es at the restricted fa ci l i t i es

. P l aint iffs urge this court to rea d in to the restriction a temporal limit ation based on the parole evidenc e, howeve r, tha t is a n im p e r mi ssible rewriting of the covena

nt. See Terry v. State Farm Mutual Automobile Insurance Co.
, 287 I ll. App. 3d 8, 14 (1997) (“It is the function and duty of the revie wing court to construe the contra ct and
not to make a new contra ct under the guise of construction.”)

. Plaintiffs have failed to show the restric tive covena

nt as it rea ds, without a temporal restric tion, is nece ssary to protec t its leg itimate business interests. Acc ording ly
, without a temporal restric tion, the restri ct ive

covena nt is unreasona

ble as a matter of la

w.

¶ 48 NPC P atient Injunction ¶ 49 In the temporar y restra ining order
, the trial court chose to impose a temporal limitation

on the NPC patient injunction, applying it only to individuals who wer e NPC patients from J anuar y 1, 2009 throug h J une 30, 2010. Def endants argue there is no rational rea son the court applied a temporal limit ation to the TRO, but did not extend it to the NPC patient injunction in the preliminary injunction. Alternatively
, defe ndants arg ue the scope of the injunction is overly broad where there was no tempora l limi tation. ¶ 50 Plaintif

fs co n t en d t h e t ri al court properly enjoined defe ndants from soliciting NPC patients beca

use of their brea ches of fiduciar y duties. Plaintiffs argue that only the temporar y restra ining order preve nted defe ndants from soliciting NPC patients and, there fore
, an injunction was nec essar

y to preser ve the status quo. ¶ 51 Def

endants contend the restric tive covena nts in Dr. Halihan’ s emp l o y ment agree ment cannot be rea d t o p re v en t him from treating NPC patients whom he did not solicit. The applicable restric tion in Dr. Halihan’ s employ ment agr e e me nt, s ta

te d
, “ H a li h a

n c a nnot solicit NP C ’s ‘b usiness or patrona g e.’ ” Def endants argue the trial court used this restric tion to impose a harsher restriction t han the parties ag ree d to, the absolut e bar of b o th defe ndants from treating curr ent or former NPC patients. I t is undisputed t h at Dr. Ochwat had no restric tive covena

nts.

-11-¶ 52 The trial c ourt held def endants intende d to dive rt NPC patients to AF A when the y told 40 to 50 patients of their intent and sug g ested follow-up visits for a time afte r defe ndants had left NPC. The court found o n l y t he temporar y restra ining order preve nted this from

occur ring

. ¶ 53 The decision to g rant or d en y i n j u n ct i v e re l i ef l ies within the trial court’s sound discretion and its finding s will not be disturbed absent an abuse of that discretion. Mohanty
, 225 I ll. 2d at 63. We find the trial court abused t h at discretion here

. Through the patient injunction, the trial court improperly imposed a restric tion on both defe ndants to which they

never ag ree d. Plaintiffs have offe red no sufficie nt leg al basis for the trial court’s decision to do so. ¶ 54 Dr. Oc hwat ca nnot be enjoined f

rom treating f

ormer or curr ent patients of NPC. There is no oral or written restric tion in the rec ord pre ventinghim from doing so. Apatient has a rig ht to seek treatment from his or her doctor at the doctor’s new place of employ ment unless that doctor is restra ined by contra ct. Th er e i s no basis for the court’s decision as i t applies to Dr. Oc hwat, and the court doe s not give one. ¶ 55 Concerning Dr. Halihan, the only plausible support for the trial court’s decision to enjoin him from treating NPC patients is a court-mo d i fi ed version of the solicitation restric tion contained in his employ

ment agre em en t

. T he trial court used the s olicitation restric tion as

a basis for fashioning an even more restric tive covena nt, i

. e. , t he complete prohibition of
treating all former and curr ent NPC patients without any temporal limit ation. Dr. Halihan’ s employ ment ag ree ment say s nothing about whether or not Dr. Halihan can t re at former or

curr ent patients of NPC once his employ ment with NPC terminated. The parties made no ag ree ment on this iss ue. ¶ 56 We rec og nize a court may modify a re strictive covena

nt that is overly

broad to make it

narr ower

. I t is well established that “if the are a cover ed by a restric tive covena nt is found to be unrea sonable as to are a, it may be limit ed to an are a which i s re as onable in order to protec t the proper interests of the empl o y er and acc omplish the purpose of the covena nt.” Tot a l He a l t h P h

ysicians, S.C. v. Barrientos
, 151 I ll. App. 3d 726, 730 (1986); see also Lee/O’Kee

fe Insurance Agenc

y, Inc. v. Ferega
, 163 I ll. App. 3d 997, 1006-07 (1987). Y et, this is not what the trial court did here

. The court did not modify an overly broad restric tion; rathe r, the court cre ated its own pati en t restriction wher e none was contemplated by the parties. The trial court could have proper ly enjoined Dr. Halihan from soliciting patients for 36 months based on the so l i ci t at ion restric tion in his employ ment agree ment; howeve r, instead, the court enjoined both defe ndants from “tre ating any curr ent or former patients of NPC,” a restric tion with n o basis in the rec ord. Henc e, the patient injunction must be

reve rsed.

¶ 57 I PA Injunction ¶ 58 Def

endants also contend the trial court ab u s ed i t s d i s cr et i o n b y en tering the I PA injunction, without any temporal limit ati o n , where money damag es would have been adequate. Fur

ther, defe ndants contend ther e is no g ood rea son the I PA injunction should

-12-stand two y ear s after defe ndants left their e mploy with NPC. ¶ 59 Plaintiffs alleg ed defe ndants tortiously interfe red with their I PA contra ct. Def endants do not challeng e that alleg ation for pur poses of this appea l. ¶ 60 Gene rally
, employ ees may plan, form, an d eq u i p a co mpeting corpor ation while still working for their

employ er, but they

may not be g in c ompetition. Delta Medic al Sy stems v. Mid-Ame rica Medic al Systems, Inc.
, 331 I ll. App. 3d 777, 796 (2002). Additionally
, absent fra ud, a contra ctual restric tive covena nt, or the i m p ro p er t aking of a customer list, former employ ees ma

y compete w ith their former employ ers a

nd solicit former c ustomers as long

as they d i d n o t take any action to do so befor e termination of their employ ment. Delta Medic al S

ys tems , 331 I ll. App. 3d at 796. This g ener al rule, howeve r, does not apply to corpor ate office rs, who owe a fiduciar y duty of loyalty to thei r corpor ate employ er. Vec o Corp. v. Babcoc k
, 243 I ll. App. 3d 153, 160 (1993). In this situation, the corpor ate office r’s termination of hi s former employ ment does not end poten t ial liability for transactions that beg an, or wer e based on information lear ned, while the office r was employ ed. Vec o Corp.
, 243 I ll. App. 3d at 161. ¶ 61 The trial court has the authority to g rant injunctive relief to the extent nece ssary to protect the plaintiff’s rig hts. Liebert Corp. v. Mazure
, 357 I ll. App. 3d 265, 287 (2005). In doing so, the court should seek to “pre vent the defe ndant from g aining competitive advanta g e throug h the unlawf

ul misappropriation.” Liebert Corp , 357 I ll. App. 3d at 287. ¶ 62 Her e, plaintiffs a lleg ed, and the trial court found, that Dr. Oc hwat used infor mation he lear ned as a corpor ate office r of NPC to attempt to usurp NPC’s contra ct with I PA. The trial court he ld Dr. Oc hwat bre ache d his fiduciary duty to the principals of NPC “to dea l fairly
, h o n es t l y , and openly .” The court found Dr. Ochwa t actively exploi ted NPC for his own persona l g ain, particula

rly in interfe ring
, while still an office r, direc tor, share holder and
trustee of NPC, with NPC’s contra ct with I PA. Dr. Ochwat attempted t o u s u rp NPC’s
contra ct with I PA by underc utting NPC’s pricing

. In order to do so, Dr. Ochwat used information he lear

ned in his capa city as an office r with NPC. Ba sed on the rec ord, we hold the trial cour

t did not abuse its discretion in gr antingthe I PA preliminary injunction.

¶ 63 CONCLUSI ON ¶ 64 For these rea sons, w e aff irm, in part, reve rse, in part, the trial court’s J anuar y 17, 2012, order and rema

nd for further proce eding s. The trial court improperly order ed Dr. Halihan to resig n his clinical privileg es at the r estricted f acilities. The c ourt further err ed in enjoining defe ndants from trea

t i n g an y curr ent or former patients of NPC. The trial court proper ly enjoined def

endants fr om enteringinto any agree ment with I PA.

¶ 65 Affir

med in part a

nd reve rsed in par

t; cause r emande d.

-13-