author: JUSTICE GOLDE NHERSH

text:
    SOUTHERN ILLINOIS MEDICAL BUSINESS ASSOCIATES, Plaintiff-Appellee, v. TONY CAMILLO, Defendant-Appellant.
    Fifth District
    No. 5-87-0764
    Opinion filed October 30, 1989.

      Churchill & McDonnell, of Belleville (Allen D. Churchill and Daniel G. Donahue, of counsel), for appellant.
    Farrell & Long, P.C., of Godfrey, and Salivar, Benson, Guest & Harms, of St. Louis, Missouri (J. Thomas Long and David C. Salivar, of counsel), for appellee.
   JUSTICE GOLDE NHERSH

delivered the opinion of the court:

Defendant, Tony Camillo, appeals from the interlocutory order of the circuit court of Madison County pursuant to Supreme Court Rule 307(a) (107 Ill. 2d R. 307(a)), which issued a preliminary injunction for plaintiff, Southern Illinois Medical Business Associates (SIMBA), a partnership. The injunction restrained defendant from violating certain noncompetition and nonsolicitation clauses contained in an employment agreement between plaintiff and defendant. In this cause, the sole issue presented for appeal is whether the trial court was correct in granting the preliminary injunction to restrain defendant from violating the restrictive covenants in his employment contract. We reverse and remand.

Plaintiff is a partnership of four pathologists, namely, Drs. Parks, Tsai, Nanduri, and Nuernberger, that provides clinical and anatomical laboratory services for hospitals, physicians, and nursing homes in southern Illinois. Plaintiff has two offices, one in Collinsville and one in Centraba. Defendant was an employee of plaintiff hired on February 1, 1983, to develop primarily nursing home clients. Defendant had previous experience in soliciting business from nursing homes for laboratories. He began this career in 1976 by working for Appleton Laboratory in East St. Louis, where he received training in phlebotomy. In 1977, Appleton and SIMBA merged into Allied Medical Laboratory (Allied). The Allied partners were Steven Bickel, Dr. Parks, and Dr. Nuernberger. In 1980, Allied split and Dr. Parks and Dr. Nuernberger left Allied and reestablished SIMBA. After this split, defendant remained an employee of Allied under the direction of Steven Bickel. Defendant stayed with Allied for approximately six or seven months, and then terminated his employment with Allied and left this field to work for an industrial laboratory in Sauget.

Approximately one year later, defendant returned to Allied, where he remained employed until 1983. At that time, defendant terminated his employment with Allied because Steven Bickel was indicted for Public Aid vendor fraud. Prior to defendant’s quitting, several of Allied’s clients became uneasy about employing a laboratory whose director was accused of illegal activity, and on their own initiative, switched to other laboratories. A few of Allied’s clients switched to SIMBA. Defendant then talked to Dr. Parks about employment with SIMBA. It was agreed that if defendant could bring enough of Allied’s clients over to SIMBA to justify his salary, he could have a job with SIMBA. Defendant went to work on February 1, 1983, without a written contract. There was testimony that defendant was hired to develop nursing home and nonnursing home clients, to go to nursing homes to draw patients’ blood and to schedule other phlebotomists to perform this service, as well as to service the four nursing homes that were already plaintiff’s clients and had been since 1977. In return for this work, plaintiff provided defendant with a salary, an automobile, membership in a nursing home association, and an expense account. Within six months of starting his job with plaintiff, defendant had brought 20 nursing home clients that were previously Allied’s clients under contract with SIMBA. The contracts between SIMBA and the nursing homes were renewable annually but were subject to termination with 30 days’ notice to plaintiff if a nursing home desired to discontinue the service supplied by plaintiff. In addition to these 24 clients, defendant also developed 15 other nursing home clients by using a cold calling method which consisted of soliciting potential clients through the “yellow pages” and a list of nursing homes defendant had obtained from the Illinois Health Care Association. Prior to defendant’s leaving plaintiff’s employ, only three of the original four nursing homes, and 11 of the 15 new homes, were still under contract with plaintiff. All nursing homes that defendant had brought with him from Allied remained under contract with plaintiff while defendant remained at SIMBA.

Plaintiff did not spend money training defendant nor did plaintiff provide defendant with any skills defendant did not already possess. Plaintiff did hire additional staff and expand its facilities in order to be able to service the new clients brought in by defendant. Plaintiff also took out a 20-year industrial bond to finance the expanding operation.

The services provided to nursing homes consisted of sending a phlebotomist to draw a patient’s blood and take the sample back for laboratory testing. Not all of plaintiff’s services were performed in its own lab. Some work was too specialized and had to be sent to a reference laboratory while sometimes it was more cost effective for plaintiff to refer the work to another laboratory. Moreover, the services defendant provided did not involve a skill or technique known only to defendant. However, defendant stated that he was the quintessential phlebotomist and was requested by name by several homes to be the phlebotomist sent to draw blood. Plaintiff’s representatives did not acknowledge any favoritism toward defendant by their clients. All parties agreed that the type of business in which they were involved was highly competitive and clients were known to switch providers frequently.

On November 21, 1985, defendant gave written notice to terminate his employment with plaintiff, effective June 1, 1986, in order to pursue his own business interests. This resignation was given at a time when other employees’ salaries were being cut 5% to 10% due to plaintiff’s financial difficulties. After defendant submitted his resignation, plaintiff and defendant worked out a written one-year employment contract to begin January 1, 1986, at which time defendant’s salary increased from $25,000 to $33,000. He was also guaranteed his salary would not be reduced. Prior to signing the employment contract, defendant read the contract and negotiated changes. Defendant made no objection to the noncompetition and nonsolicitation clauses which provide:

“15. NON-COMPETITION AFTER TERMINATION. Employee agrees that in addition to any other limitation, for a period of two (2) years after the termination of his employment hereunder, except after termination caused by Employer in violation of the terms hereof, and unless otherwise specified herein, he will not directly or indirectly engage in or in any manner be connected with or employed by any person, firm or corporation in competition with Employer or engaged in providing pathological, laboratory or other similar kinds of services within a radius of fifty (50) miles of any office of Employer, its affiliates or subsidiaries.
In the event of a breach by Employee of the above described ‘non-competition’ provisions, it is agreed that actual costs, injuries or damages sustained by Employer would be difficult if not impossible to ascertain, estimate or determine, and, therefore, liquidated damages to Employer in such event are hereby agreed to be the sum of Twenty-Five Thousand Dollars ($25,000.00) which sum shall forthwith become due and owing from Employee to Employer upon the occurrence of any such breach, and said sum is further agreed on as compensation for the damages suffered by Employer and not as a penalty.
16. SOLICITATION AFTER TERMINATION. Employee agrees that in addition to any other limitation, for a period of two (2) years after the termination of his employment hereunder, except after termination caused by Employer in violation of the terms hereof, and unless otherwise specified herein, he will not, on behalf of himself or on behalf of any other person, firm, or corporation, call on any of the customers, clients, or patients of Employer, or of any of its affiliates or subsidiaries for the purpose of soliciting and/or providing to any one or more of them any pathological, laboratory or other similar kinds of services, nor will he, in any way, directly or indirectly, for himself, or on behalf of any other person, firm or corporation, solicit, divert, or take away any customer of Employer, its affiliates or its subsidiaries.”

The parties worked under this agreement until November 4, 1986, when defendant was notified by a letter signed by all partners, except Dr. Parks, that his services would be terminated on February 4, 1987. Dr. Nuernberger testified that the termination notice was sent because defendant was often unbeatable between 8 a.m. and 5 p.m., his normal working hours. There was a question of whether he was actually working the hours he said he was working and whether he was providing the services he was supposed to be providing. Defendant was further informed that the termination had not been finalized, but had been given to defendant in order to get his attention. Should defendant’s performance improve, the partners would renegotiate with defendant.

Defendant rejected the opportunity to correct the alleged deficiencies and stated in a letter dated November 21, 1986, both his intention to quit and his desire to go into his own business which would be a competitor of plaintiff. Defendant further stated in the letter that out of respect for Dr. Parks, he was “willing to pay fair market value for either the nursing home business or the entire clinical lab.” Defendant explained that he must have a firm promise to negotiate the details by December 1, 1986.

Plaintiff did not exercise the termination. Instead, plaintiff and defendant agreed to extend the written contract through July 1, 1987, in order to give the parties time to work out a possible buy-out by defendant of plaintiff’s nursing home business. Defendant was not the only potential purchaser of plaintiff. In the fall of 1986, plaintiff had decided to sell its laboratory business and advertised such sale to national laboratories. According to Dr. Nuernberger, defendant was treated like any other potential buyer and was given proprietary data consisting of plaintiff’s total revenue and a breakdown of that revenue by nursing home. In addition, as part of the package that went to potential bidders, it was stated that “Tony Camillo is the main link to all but two or three of the nursing home accounts.”

On March 31, 1987, defendant sent the partners of SIMBA a letter which stated that defendant could start a laboratory cheaper than purchasing SIMBA. He indicated that he had the support of all of SIMBA’s nursing home clients, except two, and this support would allow him a comfortable margin of profit. Defendant also stated that SIMBA would stand to lose approximately $450,000 in income should defendant open his own laboratory.

In December 1986, defendant formed Metroplex with Dr. Edwin Jacks in order to explore the possibility of purchasing plaintiff’s clinical laboratory business. At the time of the hearing on the preliminary injunction, defendant testified that he was still waiting on the certificate of incorporation from the State and that he was not a partner in Metroplex. Dr. Jacks, however, stated that defendant was a partner in Metroplex and that Metroplex had already begun taking samples. Defendant and Dr. Jacks were proposed codirectors of the corporation. Ultimately, plaintiff and defendant were not able to agree on the terms of a purchase of SIMBA, although Dr. Jacks testified that Metroplex made an offer of $800,000. On September 16, 1987, defendant gave two weeks’ notice, but actually left plaintiff’s employ on September 23, 1987. Defendant also took with him four employees of plaintiff who began to work for Metroplex.

Sometime during September 1987, while defendant was still employed by plaintiff, he actively solicited plaintiff’s nursing home business in an attempt to get them to use the services of Metroplex. After Dr. Parks wrote to the homes asking for a copy of their contracts with plaintiff, seven homes sent replies terminating their contracts. On September 21, 1987, Dr. Parks sent a memo to defendant asking for a complete list of nursing home contracts between plaintiff and each nursing home. In the memo, Dr. Parks explained that plaintiff’s attorney was asking for such a list. Defendant wrote a reply on the bottom of the memo stating that the contracts which Dr. Parks sought were entered into in 1985 and no longer existed. Defendant further explained that the nursing homes he brought from Allied along with the ones he had developed during his employment with SIMBA had entered into contracts with him. Defendant offered Dr. Parks a list of those homes so Dr. Parks could contact them to determine whether they desired to be serviced by plaintiff or defendant. Defendant offered to release any homes wishing to remain with plaintiff.

On September 24, 1987, plaintiff appeared at an ex parte hearing at which a temporary restraining order was issued against defendant. On September 29, 1987, at 11:56 a.m., the temporary restraining order was returned served. Dr. Jacks testified that on that date and at that time he and defendant were at the office of the administrator of the Beverly Homes in an attempt to obtain that home’s business. Dr. Jacks testified that was the only customer he and defendant had visited that week.

On October 1, 1987, defendant was at the Doctor’s Clinic, as witnessed by Jan Vest, an employee of that clinic. Dr. Jacks is employed at the Doctor’s Clinic as director of the laboratory. On that day, Vest saw vials of blood with plaintiff’s requisition form attached. First, Jan Vest expressed his concern to defendant about the clinic’s getting involved in defendant’s legal problems. He then called Dr. Parks and informed him of the blood and, finally, told Dr. Jacks that he had called Dr. Parks. Dr. Jacks then had the vials removed within 30 minutes and sent to Smith-Klein Laboratories. The results were returned to defendant’s wife. She notified the phlebotomist employed by Metroplex of the results.

Arna Trotter, the office manager of SIMBA for llx/2 years, testified that after defendant left SIMBA, SIMBA received calls from four nursing homes, Eden Village, Beverly Homes, Salem Homes, and Cahokia Care Center, concerning the status of their contracts with plaintiff. Representatives of these homes had called SIMBA because defendant had been talking to them about servicing the homes, but they all believed they had contracts with SIMBA. This witness also testified that the nursing homes which terminated employment with SIMBA had accounted for $107,877 in revenues in 1987. This figure is misleading, however, as this was the sum that had been charged to the clients but plaintiff did not always collect the full amount, as when Medicare pays a percentage of a bill.

Ty Jones, employed as a laboratory pathology aide at Oliver Anderson Hospital, testified that on Sunday, October 4, 1987, defendant brought in a specimen from Cahokia Healthcare nursing home. It had a SIMBA requisition form with it. The results were called back to SIMBA, but SIMBA informed Jones that defendant was no longer in their employ.

The trial on this matter convened on October 5, 1987, and was concluded on October 9, 1987. The trial court entered its preliminary injunction on October 14, 1987.

The question presented for review is whether the trial court was correct in granting the preliminary injunction to restrain defendant from violating the restrictive covenants in his employment contract. A preliminary injunction is a provisional remedy granted before the hearing of a case on its merits in order to preserve the status quo, which is the last peaceable, uncontested status which preceded the pending litigation. (Instrumentalist Co. v. Band, Inc. (1985), 134 Ill. App. 3d 884, 890-91, 480 N.E.2d 1271, 1278; Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 761, 424 N.E.2d 719, 722.) In order for a preliminary injunction to issue, the plaintiff must establish by a preponderance of the evidence that (1) he possesses a clear right or interest needing protection, (2) no adequate remedy at law exists, (3) irreparable harm will result if an injunction is not granted, and (4) there is a likelihood of success on the merits of the case. (McRand, Inc. v. Van Beelen (1985), 138 Ill. App. 3d 1045, 486 N.E.2d 1306; The Packaging House, Inc. v. Hoffman (1983), 114 Ill. App. 3d 284, 448 N.E.2d 947.) In addition to those criteria, the trial court must also balance the equities or relative inconvenience to the parties and determine whether a greater burden will be imposed on the defendant by granting the injunction than on the plaintiff by denying it. (Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 424 N.E.2d 719; Booth v. Greber (1977), 48 Ill. App. 3d 213, 363 N.E.2d 6.) Finally, the decision to grant or deny injunctive relief rests with the sound discretion of the trial court and will not be disturbed absent a clear showing of abuse. Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 424 N.E.2d 719.

The first district has been the leader in developing the law concerning whether an employer has any proprietary interest in his customers warranting the imposition of restrictive covenants in an employment contract. Our supreme court has not yet decided this issue, but has given us general guidance in this area of the law. In Canfield v. Spear (1969), 44 Ill. 2d 49, 254 N.E.2d 433, the supreme court stated that in considering business relationships, a court should consider the question of injurious effect to the public in restricting the delivery of a service. In House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 225 N.E.2d 21, our supreme court held that the enforceability of a restrictive agreement depends on the reasonableness of the agreement in terms of its effect on the parties to the agreement and on the public in general. Both the first and fourth districts have found that an employer may have a proprietary interest in its customers sufficient to warrant enforcement of noncompetition clauses between an employer and an employee. (See the first district cases of A.B. Dick Co. v. American Pro-tech (1987), 159 Ill. App. 3d 786, 514 N.E.2d 45; Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 490 N.E.2d 1302; McRand, Inc. v. Van Beelen (1985), 138 Ill. App. 3d 1045, 486 N.E.2d 1306; Jefco Laboratories, Inc. v. Carroo (1985), 136 Ill. App. 3d 793, 483 N.E.2d 999; Instrumentalist Co. v. Band, Inc. (1985), 134 Ill. App. 3d 884, 480 N.E.2d 1273; and the fourth district case of Lee/O’Keefe Insurance Agency, Inc. v. Ferega (1987), 163 Ill. App. 3d 997, 516 N.E.2d 1313.) However, because such covenants operate at least as partial restraints of trade, they are scrutinized carefully by the courts. (Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 424 N.E.2d 719.) A restrictive covenant may be held enforceable only if the time and territorial limitations are reasonable and the restrictions are reasonably necessary to protect a legitimate business interest of the employer, a determination which requires that the facts and circumstances of each individual case be scrutinized. Reinhardt Printing Co. v. Feld, 142 Ill. App. 3d at 15, 490 N.E.2d at 1307; Instrumentalist Co. v. Band, Inc., 134 Ill. App. 3d at 891-92, 480 N.E.2d at 1279.

In the instant case, defendant argues that plaintiff had no legitimate protectable business interest in its customers because he developed the clientele through his own efforts on the employer’s behalf and in furtherance of his association with plaintiff. Defendant agrees that the four original homes, now three, which were serviced by plaintiff are close to a near-permanent relationship. Plaintiff responds that there is a protectable business interest, so that a covenant not to compete was a necessary part of the contract. Plaintiff further points out that such covenants are valid and enforceable when the limitations as to time and territory are not unreasonable and argues that in the instant case they were reasonable. We find there to be no legitimate, protectable business interest in any of plaintiff’s clients.

We agree with the first district that there are two general situations in which an employer’s proprietary interest in his customers may be found for the purposes of enforcing a covenant not to compete: (1) where, by the nature of the business, plaintiff has a near-permanent relationship with its customers and but for his or her employment, defendant would not have contact with them; or (2) where the former employee learned trade secrets or acquired other confidential information while in plaintiff’s employ and subsequently attempted to use it for his or her own benefit. (Reinhardt Printing Co. v. Feld, 142 Ill. App. 3d at 16, 490 N.E.2d at 1307; McRand, Inc. v. Van Beelen (1985), 138 Ill. App. 3d 1045, 486 N.E.2d 1306; Instrumentalist Co. v. Band, Inc., 134 Ill. App. 3d at 892, 480 N.E.2d at 1279.) In the instant case, plaintiff does not allege, nor does the evidence suggest, that defendant misappropriated trade secrets acquired through plaintiff. We, therefore, move directly to a discussion of whether a near-permanent relationship between plaintiff and its customers existed.

The first district has developed a set of objective factors to be considered in determining whether a near-permanent relationship exists between an employer and its customers for the purpose of enforcing noncompetition covenants. These factors include the time, cost, and difficulty involved in developing and maintaining clientele, the parties’ intention to remain affiliated for an indefinite period, and the continuity as well as the duration of the relationship. (A.B. Dick Co. v. American Pro-tech, 159 Ill. App. 3d at 793, 514 N.E.2d at 49; Reinhardt Printing Co. v. Feld, 142 Ill. App. 3d at 16, 490 N.E.2d at 1307; McRand, Inc. v. Van Beelen, 138 Ill. App. 3d at 1051-53, 486 N.E.2d at 1311-12.) We must also ask the question, but for the job with the employer, would the employee have come into contact with the customers? (McRand, Inc. v. Van Beelen, 138 Ill. App. 3d at 1053, 486 N.E.2d at 1312; see also Cockerill v. Wilson (1972), 51 Ill. 2d 179, 281 N.E.2d 648; Canfield v. Spear (1969), 44 Ill. 2d 49, 254 N.E.2d 433.) We find these factors to be particularly realistic, as they can be adapted to even an inherently unstable industry. (See Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 490 N.E.2d 1302.) We note that no one factor is to be given greater weight, but that these factors must be balanced. Most importantly, the trial court must exercise its discretion in reviewing these factors, and its decision will not be overturned absent a clear showing of abuse. With these caveats in mind, we adopt these factors and apply them to the instant case.

The number of years it takes to develop the clientele indicates the parties’ intention to remain affiliated for long periods of time. (McRand, Inc. v. Van Beelen, 138 Ill. App. 3d at 1051, 486 N.E.2d at 1311.) In the present case, there was no specific time offered to indicate how long it took to develop a client, but the tone of the testimony suggested that clients could be developed after only one, or more likely, a few meetings. Moreover, there was no specific testimony to indicate the amount of money it took to develop a client. There was testimony that defendant had an expense account which we presume was used to develop and maintain client relationships, but there was no indication of a large pecuniary investment in plaintiff's clients. We note, however, that three of plaintiff’s clients had been using plaintiff’s services since 1977. Obviously, much more time and money went into retaining these clients over the years. Defendant points out in his brief: “The only thing close to resembling a near-permanent relationship with plaintiff’s nursing home clientele are the original four homes with which it started in 1977.” We agree. But not even these homes attained a near-permanent status. The only factors balancing in plaintiff’s favor are the continuity as well as the duration of the relationship. We agree that 12 years is a great deal of time to have kept a relationship; however, any one of these homes could cancel their contract with plaintiff with 30 days’ notice. One home that had been using plaintiff's services since 1977 did just that in 1986. Moreover, all parties agreed that this was a highly competitive business and customers were changing providers constantly. In contrast to the three remaining original homes, all the testimony reflected that defendant had brought 20 homes over from Allied within six months of his employment with plaintiff. These 20 homes that defendant convinced to use SIMBA’s services were the reason defendant had a job with plaintiff, and they remained with plaintiff throughout defendant’s employment. The other 11 accounts defendant serviced while with plaintiff were ones whose business defendant had solicited during his years with plaintiff, having done so by making cold calls on homes whose names he obtained through the “yellow pages” and through a list defendant obtained from the Illinois Health Care Association. Dr. Nuernberger’s best judgment was that of these 31 homes, some had been serviced for five years, but most had been serviced less. In addition, defendant and Dr. Nuernberger both testified that the nursing home laboratory business was highly competitive and that homes often changed providers. On the other hand, the 11 homes defendant established while working for plaintiff were established at plaintiff’s expense in terms of salary earned by defendant and whatever expenses it took to not only sign the original contracts with defendant but also to retain these clients. Additionally, plaintiff’s name and reputation certainly played a factor in those clients’ commitments to plaintiff for services. In our view, the evidence clearly established that the 20 nursing homes brought over with defendant were short-term, impermanent customers whose business defendant was able to solicit not because of his association with plaintiff, but rather, through defendant’s own efforts on plaintiff’s behalf and in furtherance of defendant’s association with plaintiff. (Reinhardt Printing Co. v. Feld, 142 Ill. App. 3d at 17, 490 N.E.2d at 1308.) The other 11 homes are a closer discretionary call; however, the record indicates that these homes, too, were established through defendant’s own efforts on plaintiff’s behalf. These 11 homes were not acquired by the use of confidential information such as a client list but were established through cold calls. Our decision that these 11 homes are not a legitimately protectable interest is based in large part on plaintiff’s own statement made to potential buyers of SIMBA that “Tony Camillo is the main link to all but two or three of the nursing home accounts.” Thus, we find the evidence was not sufficient to establish that plaintiff had a business interest in need of protection in any of its customers.

In our view, it appears that plaintiff seeks to restrain defendant, for the most part, from contacting customers previously known and readily available to him. As we stated in Murphy v. Murphy (1975), 28 Ill. App. 3d 475, 328 N.E.2d 642:

“While clientele may properly be called the customers of a particular business, they cannot be considered the ‘property’ of that business. While a business can have a proprietary interest in lists of customers which it maintains, no business has a proprietary. interest in the customers themselves.” (28 Ill. App. 3d at 478, 328 N.E.2d at 644.)

In the instant case, a near-permanent relationship was not proven to exist between plaintiff and its customers. Neither was anything learned by defendant during his employment with plaintiff that would give him an unfair advantage. Rather, defendant was hired by plaintiff because he already possessed both the skill and the knowledge necessary to bring in new clients on plaintiff’s behalf.

We also note that defendant did not originally work under an employment contract. It was not until almost three years after defendant began working for plaintiff that he was asked to sign one. The signing of this contract came after defendant gave his letter of resignation which criticized plaintiff’s management. It also came at a time of economic distress when other employees’ salaries were being cut by 5% to 10%. This employment contract, with its restrictive covenants, was an attempt to assure plaintiff that defendant would not become a competitor. We find that this contract was initiated by plaintiff to restrict competition rather than to protect any legitimate business interest.

Having failed to establish a protectable interest, plaintiff cannot show that it suffered irreparable injury or that it lacks an adequate remedy at law. (Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 767, 424 N.E.2d 719, 726.) Moreover, we find little to indicate that plaintiff will be prevented from competing on a fair and equal basis with defendant. Defendant has offered to give Dr. Parks a list of the clients that he has signed with Metroplex in order to give plaintiff the opportunity to secure new contracts with these nursing homes if such nursing homes so desire.

Plaintiff urges us not to adopt this two-part test, and thereby not consider whether a near-permanent relationship between plaintiff and its customers existed, but to follow Total Health Physicians, S.C. v. Barrientos (1987), 151 Ill. App. 3d 726, 502 N.E.2d 1240, in which we found that restrictive covenants between a medical corporation and physicians were enforceable where the restraints as to time and territory were valid and would not cause the public undue hardship. However, we are able to distinguish Barrientos from the case at bar. In Barrientos, the plaintiff had a protectable interest in its patients. The defendant physicians had been provided patient lists, referrals, confidential advertising and marketing techniques, office space, clinical facilities and supplies, were assisted in obtaining hospital privileges, and could have the contractual restraints waived by the medical corporation upon payment of $50,000, whereas, in the instant case, defendant was provided a salary of $33,000 per annum, use of a car, an expense account and membership in a nursing home association. Furthermore, unlike Barrientos, defendant was clearly the party that had the contacts to bring plaintiff new customers.

By our decision we do not mean to condone defendant’s actions. Defendant’s use of SIMBA requisition forms and almost verbatim SIMBA contracts after the formation of Metroplex was clearly hostile. So, too, was the state of confusion in which defendant left SIMBA’s clients concerning the status of their contracts with SIMBA. Moreover, the trial court found:

“[0]n some questions, Camillo was evasive and vague. For example, Camillo was not forthright on questions relating to his part in forming Metro-plex. Camillo was impeached on matters pertaining to his letter to the SIMBA partners dated March 31, 1987. *** Based upon these considerations, the Court finds that defendant was not a credible witness.”

We also note that there is no question but that this was not a contract of adhesion. The record clearly establishes that defendant was given the opportunity to read over the contract and suggest changes. Defendant did not object to these restrictive covenants. We believe both parties were equally matched in what was, to say the least, a rocky relationship. Due to these considerations, we cannot say that plaintiff has no likelihood of success on the merits of this case. Plaintiff may well be entitled to compensation. We find only that there was no protectable interest on which to enter a preliminary injunction. In essence, plaintiff failed to show injury to a legitimate business interest separate and distinct from defendant’s breach of the restrictive covenant in order to secure enforcement thereof through injunctive relief. Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 765, 424 N.E.2d 719, 725.

For the foregoing reasons, this court reverses and remands the order of the circuit court of Madison County for further proceedings not inconsistent with this opinion.

Reversed and remanded.

HOWERTON and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN R. THOMPSON, Defendant-Appellant.
    Fifth District
    No. 5—88—0166
    Opinion filed October 31, 1989.

      Donald E. Groshong, of Alton, for appellant.
    Don Sheafor, State’s Attorney, of Vandalia (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, John R. Thompson, appeals pursuant to Supreme Court Rule 604(f) (107 Ill. 2d R. 604(f)) from the denial by the circuit court of Fayette County of his motion to dismiss his case on grounds of former jeopardy.

On October 24, 1987, defendant received a uniform Illinois traffic citation and complaint charging him with driving while intoxicated. The citation scheduled defendant’s initial appearance at 9 a.m. on November 23, 1987. On November 3, 10 days after his arrest, the State filed a two-count information charging defendant with driving while intoxicated and driving while his breath-alcohol content was in excess of :10 (Ill. Rev. Stat. 1987, ch. 951/2, pars. 11 — 501(a)(1), (a)(2)). On November 23, defendant filed a plea of not guilty, a demand for trial by jury, a demand for speedy trial pursuant to section 103 — 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(b)), and a demand for trial on the appearance date pursuant to Supreme Court Rule 505 (107 Ill. 2d R. 505). The minute record of the court further noted the case was “Continued to 12/7/87 at 9:00 A.M. Notice to issue.” The notice issued, also dated November 23, 1987, advised both defendant and the State the case was set for first appearance on December 7,1987.

On December 7, 1987, defendant appeared with counsel ready for a jury trial. The State, however, announced it was not ready because the arresting officer was absent. The State then served upon defendant the previously filed two-count information. Defendant orally moved the court to dismiss the case pursuant to Supreme Court Rules 504 and 505 (107 Ill. 2d Rules 504, 505). The court took defendant's motion under advisement, and on the following day, dismissed the case, finding that defendant had complied with the requirements of Rules 504 and 505 by entering a written plea of not guilty and demand for jury trial within the time prescribed, had served the State’s Attorney with a separate demand for speedy trial and had appeared ready for trial on December 7, while the State was not ready and the arresting officer failed to appear in person in court. The State filed a motion to reconsider on December 22 which the trial court subsequently granted on January 28, 1988. The court reinstated defendant’s charges on the grounds that defendant’s demand for a jury trial constituted a waiver of the right under Rule 505 to trial on the appearance date. Defendant then filed a motion to dismiss the charges, arguing that further prosecution was barred by considerations of double jeopardy because of the December 8 dismissal. The trial court denied defendant’s motion, resulting in this interlocutory appeal. The issue before us then is whether prosecution of this case is barred by considerations of former jeopardy. We believe the trial court erred in reinstating prosecution of the case, and accordingly, reverse the court’s decision. The charges against defendant therefore are to be dismissed with prejudice.

Supreme Court Rules 504 and 505 delineate a framework of times and limits governing appearances and trials for traffic and conservation offenses. (See People v. Herbert (1984), 122 Ill. App. 3d 43, 44, 460 N.E.2d 86, 87.) While both rules have been amended since the pending of this appeal (see 128 Ill. 2d Rules 504, 505), at the time of defendant’s alleged offense, Rule 504 provided:

“The date set by the arresting officer for an accused’s appearance in court shall be not less than 14 days but within 49 days after the date of the arrest, whenever practicable. It is the policy of this court that an accused who appears and pleads ‘not guilty’ to an alleged traffic or conservation offense should be granted a trial on the merits on the appearance date set by the arresting officer. Except as provided in Rule 505, an arresting officer’s failure to appear on that date, in and of itself, shall not normally be considered good cause for a continuance.” (107 Ill. 2d R. 504.)

Rule 505 provided in part:

“When issuing a Uniform Citation and Complaint, a conservation ticket or a Notice to Appear in lieu of either, *** the officer shall also issue a written notice to the accused in substantially the following form:
AVOID MULTIPLE COURT APPEARANCES
If you intend to plead ‘not guilty’ to this charge, or if, in addition, you intend to demand a trial by jury, so notify the clerk of the court at least 5 days (excluding Saturdays, Sundays or holidays) before the day set for your appearance. A new appearance date will be set, and arrangements will be made to have the arresting officer present on that new date. Failure to notify the clerk of either your intention to plead ‘not guilty’ or your intention to demand a jury trial may result in your having to return to court, if you plead ‘not guilty’ on the date originally set for your court appearance.
Upon timely receipt of notice that the accused intends to plead ‘not guilty,’ the clerk shall set a new appearance date not less than 7 days nor more than 49 days after the original appearance date set by the arresting officer, and notify all parties of the new date and the time for appearance. If the accused demands a trial by jury, the trial shall be scheduled within the time prescribed by section 103 — 5 of the Code of Criminal Procedure of 1963, as amended (Ill. Rev. Stat. 1983, ch. 38, par. 103 — 5). If the accused fails to notify the clerk as provided above, the arresting officer’s failure to appear on the date originally set for appearance may *** be considered good cause for a continuance.” (107 Ill. 2d R. 505.)

Under this framework, a defendant’s initial appearance must be scheduled for the period within 14 to 49 days after his arrest. If the defendant chooses to plead not guilty and timely notifies the clerk of his intention prior to his appearance date, then a new appearance date for a trial on the merits shall be set for the period within 7 to 49 days after the original appearance date. If a defendant does not provide timely notice, he may be subjected to multiple court appearances because the arresting officer’s absence on the initial appearance date may be good cause for a continuance. (See Herbert, 122 Ill. App. 3d at 44, 460 N.E.2d at 87; People v. Mears (1980), 84 Ill. App. 3d 265, 269, 405 N.E.2d 443, 446.) If a defendant also wants a jury trial and provides timely notice of his choice, he must then be tried in accordance with the time frame established in section 103 — 5 of the Code of Criminal Procedure — in other words — if in custody, within 120 days of being taken into custody, or if free on bail, within 160 days of his demand for trial. In either event, whether timely requesting a jury trial or pleading not guilty, the rules contemplate that the next date set, the new appearance date, will consist of a trial on the merits with the presence of the arresting officer in court. The policy behind these rules clearly is to avoid subjecting accused persons in traffic and conservation cases to multiple court appearances by having a disposition on the merits of the charge on the date first set for the trial actually to occur. People v. Nelson (1974), 18 Ill. App. 3d 628, 630, 310 N.E.2d 174, 177.

Defendant timely notified the clerk and the State of his intention to plead not guilty and to demand a trial by jury. The clerk set a new appearance date and so notified both sides. Defendant was entitled to a trial on the merits on that day. Contrary to the trial court’s ruling, a demand for a jury trial does not constitute a waiver of the right to a trial on the merits upon the rescheduled appearance date. (See Nelson, 18 Ill. App. 3d at 630, 310 N.E.2d at 177.) A demand for a jury trial merely triggers a new time frame in which that trial on the merits must occur. (See People v. Rumler (1987), 161 Ill. App. 3d 244, 246, 514 N.E.2d 797, 798.) Defendant appeared on the new appearance date, ready for trial. The State did not. The State announced it was not ready for trial because the prosecuting witness, the arresting officer, was not present in court. The trial court, consistent with the objectives of Rules 504 and 505, quite properly dismissed the charges against defendant. To then allow the State to reinstate those charges at a later time, however, is not consistent with the policy behind Rules 504 and 505. A mere dismissal with the right to reinstate charges at a later time is not a disposition on the merits, for reinstatement of charges forces a defendant to come to court again and again until the case finally is disposed of through trial. (Nelson, 18 Ill. App. 3d at 630, 631, 310 N.E.2d at 177, 178.) This the rules do not allow. Consequently, dismissal on the merits, barring any subsequent prosecution on the same charges, was warranted here. (Nelson, 18 Ill. App. 3d at 631-32, 310 N.E.2d at 178. See also Rumler, 161 Ill. App. 3d at 246, 514 N.E.2d at 798; People v. Snyder (1980), 81 Ill. App. 3d 721, 722-23, 402 N.E.2d 300, 301; People v. Novak (1979), 68 Ill. App. 3d 453, 456, 386 N.E.2d 459, 462; City of Belleville v. Watts (1978), 61 Ill. App. 3d 538, 543, 378 N.E.2d 213, 216.) Under the framework established by Rules 504 and 505, dismissal on the merits constitutes a final judgment, tantamount to an acquittal. Any further prosecution on the same charges following such a dismissal therefore violates the ban against double jeopardy. (See Nelson, 18 Ill. App. 3d at 630-32, 310 N.E.2d at 177-78. See also People v. Creek (1983), 94 Ill. 2d 526, 532-33, 447 N.E.2d 330, 333; People v. Lorah (1986), 142 Ill. App. 3d 163, 164, 491 N.E.2d 793, 795; People v. Brookbank (1979), 79 Ill. App. 3d 412, 415, 398 N.E.2d 632, 634-35.) Defendant, in accordance with Rules 504 and 505, is entitled to dismissal of the reinstated charges. Cf. People v. Shields (1979), 76 Ill. 2d 543, 546-47, 394 N.E.2d 1161, 1162-63; People v. Jones (1979), 75 Ill. App. 3d 945, 947, 393 N.E.2d 1372, 1374; People v. Howell (1977), 46 Ill. App. 3d 300, 301-02, 360 N.E.2d 1212, 1213.

The State argues, however, it filed a criminal complaint against defendant thereby removing the case from the scope of Rules 504 and 505 under the holding of People v. Davis (1982), 104 Ill. App. 3d 120, 122-23, 432 N.E.2d 947, 948-49. The State may not circumvent these rules simply by filing criminal complaints. (See Rumler, 161 Ill. App. 3d at 246, 514 N.E.2d at 798.) Unlike the circumstances of Davis, the State here did not file the information the next day, but instead waited some 10 days later. More importantly, however, defendant was not served with notice of the filing of the information until in open court on December 7. By that time, defendant already was entitled to discharge. The complaint therefore had no effect and did not serve to remove defendant’s case from the scope of Rules 504 and 505. (See Herbert, 122 Ill. App. 3d at 45-46, 460 N.E.2d at 88; Mears, 84 Ill. App. 3d at 271, 405 N.E.2d at 447. See also Davis, 104 Ill. App. 3d at 123, 432 N.E.2d at 949.) Such methods to defeat enforcement of Supreme Court Rules 504 and 505 simply cannot be permitted.

For the aforementioned reasons, we reverse the order of the circuit court of Fayette County reinstating prosecution of defendant’s case and remand for dismissal of the charges against him with prejudice.

Reversed and remanded with directions.

HARRISON and GOLDENHERSH, JJ., concur.


author: JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY DAUBMAN, Defendant-Appellant.
    Fifth District
    No. 5—87—0565
    Opinion filed October 31, 1989.

      Daniel M. Kirwan and Mary M. Menard, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of Mt. Vernon, for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant, Gary Daubman, was charged by indictment with murder, conspiracy to commit murder, and the unlawful use of firearms by a felon. On April 2, 1987, the defendant entered a negotiated plea of guilty to the count of murder, the remaining counts were dismissed and an agreed sentence of natural life imprisonment was imposed by the court. Subsequently, the defendant filed a motion to withdraw his guilty plea which was denied. The defendant now appeals the court’s denial of his motion to withdraw his guilty plea.

The defendant raises two issues on appeal. The defendant first contends that the circuit court erred in failing to determine if the defendant’s guilty plea was “understandingly” made and that the court erred in denying his motion to vacate the guilty plea when there was evidence that the defendant was not competent at the time of the plea. The defendant’s second issue is that the circuit court erred in sustaining his counsel’s objection to introduction of evidence of the defendant’s psychiatric records as those records were not protected by a physician/patient privilege and as any confidentiality had been waived when the defendant waived the attorney/client privilege. Because of the nature of the defendant’s issues, a statement of facts is not necessary at this juncture, but a discussion of the pertinent facts will be set forth under the consideration of each issue.

In the defendant’s first issue, he argues that it is “possible” that his guilty plea was not entered “understandingly” because of his “alleged mental illness.” In conjunction with this issue, the defendant further states that the circuit court’s inquiry was not adequate as to whether the defendant’s guilty plea was voluntary and knowing, given the evidence before the court of the defendant’s lack of mental capacity, and that the circuit court should have granted the defendant’s motion to withdraw his guilty plea on that basis. In support of his argument, the defendant notes that the court was aware that a psychiatrist had examined the defendant; and in addition, that the court adopted the sentencing recommendation agreed to by the State’s Attorney and defense counsel that the defendant be placed in the psychiatric unit at Menard Correctional Center. Our review of the record reveals that the circuit court did determine that the defendant’s guilty plea was entered voluntarily, knowingly and understandingly and that the court did not abuse its discretion when it denied the defendant’s motion to withdraw his guilty plea.

At the guilty plea hearing, the State set forth the terms of the plea agreement. The State’s Attorney stated that the defendant had agreed to enter a plea of guilty to the offense of murder, and in exchange, the State would dismiss the other two charges of conspiracy to commit murder and the unlawful use of a firearm by a felon. Additionally, the State had agreed to forego seeking the death penalty, which the State believed could be imposed pursuant to section 9— 1(b)(8) of the Criminal Code of 1961, as the facts would show that the murder was committed to prevent the victim from giving material assistance to the State in an investigation or from testifying in a proceeding against Doug and Tammy Fyke, drug dealers at whose behest the defendant shot the victim. (Ill. Rev. Stat. 1987, ch. 38, par. 9— 1(b)(8).) The State recommended that the defendant be sentenced to natural life imprisonment, as the State believed the murder of the victim was accompanied by brutal and heinous behavior indicative of wanton cruelty. As part of the negotiated plea, the State and the court were to recommend that the defendant be housed in the psychiatric unit of Menard Correctional Center with the understanding by the defendant that the Department of Corrections may or may not consider this recommendation.

The State also advised the court that, although it was not part of the negotiated plea, the defendant had obtained letters of “no prosecution” from the State’s Attorney of Macoupin County for an aggravated criminal sexual assault charge and from the State’s Attorney of Madison County for a murder charge. The conditions of the “no prosecution” letters were that the State’s Attorneys would not prosecute the defendant for those offenses if he pleaded guilty to murder in the instant case and was sentenced to a term of natural life imprisonment.

The defendant’s counsel stated that the State’s Attorney correctly stated the plea agreement. While the defendant denied that the murder was a contract killing, he did agree that the facts would show that the defendant was promised compensation. The defendant further disagreed that the murder was accompanied by brutal and heinous behavior or that the evidence would be sufficient to show that the murder was done to prevent the victim from testifying or participating in a prosecution of another. The defendant’s counsel stated that the strategic decision behind accepting the plea agreement was to avoid the death penalty.

After hearing the plea agreement, the court inquired of the defendant whether he understood the agreement that was discussed, and the defendant responded that he understood. The defendant further agreed that the agreement was the agreement into which he had entered.

The court asked the State’s Attorney for the stipulation of the defendant’s prior criminal history. The State’s Attorney advised the court that the defendant had been adjudicated delinquent in July of 1981 for an unlawful restraint charge and that the defendant had had a conviction for rape for which he had received a sentence of six years’ imprisonment. At the time of the current offense, the defendant was on parole from the prior rape conviction. The court asked the defendant if he concurred in this statement of his criminal history and if the statement was accurate, and the defendant answered affirmatively.

The court accepted the defendant’s written plea of guilty, and at that time, recited the charge of the bill of indictment for murder, i.e., that the defendant had, without lawful justification, shot Robert Alderson, Jr., in the head with a handgun thereby causing the death of the victim. When asked by the court if the defendant understood the charge, the defendant stated that he did, and he admitted that he had signed the written guilty plea.

The court proceeded to advise the defendant that the maximum penalty that could be imposed for the offense of murder was the death penalty and that the minimum penalty was 20 years’ imprisonment. The court explained to the defendant that the State’s Attorney had recommended that the defendant be sentenced to natural life imprisonment and that this sentence did not provide for the possibility of mandatory release. The court inquired as to whether the defendant understood the possible penalties and the recommended penalty, and the defendant responded that he understood.

The court further questioned the defendant as to whether he had been coerced into pleading guilty through threats or promises; as to whether the defendant was pleading guilty voluntarily and of his own free will; if the defendant was satisfied with his counsel’s representation in this case; and if the defendant was satisfied with his plea agreement. To each of these inquiries, the defendant responded affirmatively.

The court next admonished the defendant as to his rights. The court explained that, by entering a plea of guilty, he was waiving his right to a trial of any kind, a bench trial or a jury trial; that he was giving up the right to confront witnesses and to subpeona witnesses to testify in his behalf; and that the defendant was relinquishing his presumption of innocence. The defendant indicated that he understood that he was giving up these rights by entering his plea of guilty.

After admonishing the defendant, the court requested that the State present the factual basis for the plea. The State’s Attorney complied by reciting the following facts: On September 7, 1986, the body of Robert “Red” Alderson, Jr., was found in an area known as Hickory Hill Bottoms (the Bottoms). The body was severely burned, but the autopsy revealed that the cause of death was three gunshot wounds at point-blank range to the victim’s head and that the burning of the body of the victim occurred after death. On September 9, 1986, the defendant was arrested on an arrest warrant from Macoupin County for the offense of rape. While in custody and during interrogation for the rape charge, the defendant made a written statement admitting to Robert Alderson’s killing.

In the defendant’s statement, it was established that on September 4, 1986, the defendant, Frank Volkmar and Paul Potts came to Salem, Illinois, to the home of Doug and Tammy Fyke. Tammy Fyke asked the defendant to kill Alderson, and the defendant agreed to do so. That day, Tammy and Gail Rankin took the defendant out to the Bottoms and showed the defendant how to use the .25 caliber pistol that the defendant had brought with him. The defendant practiced target shooting with the gun and then the three of them returned to Tammy’s home.

Later, the defendant and Rankin returned to the area where they had been previously that afternoon, with the defendant armed with the .25 caliber pistol. Shortly thereafter, Tammy arrived with Aider-son. Alderson got out of the car and was searched for weapons. The defendant’s statement revealed that Alderson had been lured to the scene under the pretext that his girlfriend was being held captive and that Alderson was to come with Tammy to gain her release.

The defendant ordered Alderson to lie facedown on the ground, and the defendant placed his gun to the back of Alderson’s head. According to the defendant’s statement, Alderson stated that he knew the defendant was going to shoot him, whereupon the defendant shot Alderson in the head twice. The defendant backed away from the victim, and as he did so, he shot Alderson in the head a third time.

The defendant left the scene of the shooting with Tammy and returned to the Fykes’ residence. Rankin likewise left the area but in a separate car. Back at the Fykes’ home, the defendant and the others considered how to dispose of the murder weapon, their clothes, and Rankin’s car. Volkmar, Potts, and the defendant then left Salem and returned to Alton, Illinois.

In the next few days following the murder, the defendant admitted that he, with Volkmar’s assistance, disposed of his gun and his clothing which he had worn the day of the crime. The gun was thrown into the Hartford canal. The authorities subsequently recovered the weapon after they were shown the location by the defendant.

At some time after the crime, the defendant admitted that he talked with Tammy on the telephone and he was told by her that he was to be paid $500 for killing Alderson and that he would be paid by Volkmar for Tammy. Volkmar was to subsequently reduce the amount of money which he owed Tammy by this amount.

The State advised the court that the testimony of codefendant Paul Potts would establish that on September 3, 1986, Potts, the defendant and Volkmar were at Volkmar’s house. Volkmar stated that Tammy had called him and said that she wanted a person by the name of “Red” killed as he was a “narc” and a threat to Tammy. Potts would further testify that Volkmar stated that the defendant had agreed to do this since the defendant needed money to get out of Alton because the police were seeking him for a rape charge. The killing of Alderson would serve the dual purpose of doing a favor for Tammy and of insuring Potts and Volkmar a supply of cannabis. The defendant acknowledged to Potts that what Volkmar stated was agreeable to the defendant.

Potts’ testimony would corroborate the defendant’s statements that Potts, Volkmar and the defendant came to the Fykes’ home on September 4, 1986. The defendant told Potts that he was being paid to “take care of” Alderson, but that he would not receive payment until after the killing was done.

Potts’ testimony would further establish that two weeks prior to the killing, Doug and Tammy Fyke came to Volkmar’s residence when he and the defendant were present. After the Fykes left Volkmar’s home, Ray Volkmar, Frank Volkmar’s brother, stated that Tammy wanted a man in Salem killed as he was a “narc” and a threat to her.

The State advised the court that it was prepared to present testimony that Alderson’s girlfriend, as part of the plan to murder the victim, was taken to a motel on September 4, 1986, and was paid to be with Frank Volkmar. Alderson was advised that his girlfriend had been taken, and Alderson had told a man by the name of Joe Monkow that he was to meet with some people alone to obtain his girlfriend’s release.

Given the foregoing statement of the facts, the court found that there was a factual basis for the defendant’s guilty plea, and the court further found that the murder was accompanied by brutal and heinous behavior indicative of wanton cruelty. The court determined that the defendant was eligible for a sentence of natural life imprisonment.

Defendant’s counsel disputed the court’s findings that the defendant’s actions were brutal and heinous such as to be indicative of wanton cruelty. Defense counsel pointed out that the defendant did not participate in the burning of the victim’s body and that the defendant confessed to the offense and, therefore, his actions cannot be considered brutal and heinous. Counsel denied that the evidence was sufficient to show that the victim was killed to prevent him from assisting the State in a prosecution of another. Counsel lastly noted that the defendant initially agreed to harm Alderson, and that it was only after he had ingested a large quantity of cocaine that he was induced to murder the victim. Given these objections, counsel agreed that the factual basis for the plea was otherwise accurate.

The court overruled the defendant’s objections, found that the defendant had knowingly and voluntarily entered his guilty plea, and sentenced the defendant to natural life imprisonment. In addition, the court accepted the recommendation of the parties that the defendant be housed in the psychiatric unit at Menard Correctional Center. The court asked the defendant if he understood that this was a recommendation only and that the Department of Corrections could place him as it saw fit. The defendant stated that he understood. The court concluded by advising the defendant of his appeal rights, which the defendant indicated he understood. The court asked the defendant if he had any questions, and the defendant responded that he did not.

The evidence presented at the defendant’s motion to withdraw his guilty plea consisted of the defendant’s testimony and the testimony of John McGuire, the attorney who represented the defendant at the guilty plea hearing. The defendant’s testimony established that he had attended school 'through the eighth grade, at which time he was thrown out of school because of his drug-related activities. The defendant admitted that he had begun using drugs and alcohol when he was 12 years of age and that he continued to do so. While in school, the defendant attended special education classes because he was a slow learner. The defendant testified that he was virtually illiterate, and when people used “big words” and talked in complicated long sentences, he had difficulty in understanding.

The defendant recalled being arrested for another offense on September 9, 1986. While incarcerated, the defendant had been seen by medical doctors but he was unable to recall any of the doctors’ names. The defendant saw the doctors for his nerves because he was unable to keep his food down. The defendant was prescribed Mellaril for his condition, and he had taken 10 milligrams of Mellaril on the day of his guilty plea. This drug made him “spacey.” The defendant stated he did not pay much attention to what transpired at his guilty plea hearing as he had trouble following what the judge was saying. The defendant said it was his understanding that if he pleaded guilty, the most extensive sentence he could receive was a sentence of natural life imprisonment, but that he did not believe that this sentence would be automatically imposed. If he had known that he was to receive a life sentence, the defendant stated he would not have pleaded guilty.

The defendant testified that when he was a juvenile, he was treated by Dr. Ziporyn, a psychiatrist. According to the defendant, Dr. Ziporyn had the defendant undergo a brain scan, which showed that the defendant suffered from “brain syndrome.” The defendant’s attorney, McGuire, had obtained Dr. Ziporyn’s records and had read and explained them to the defendant.

The defendant stated that he had many discussions with his attorney and that they often discussed the possibility of the defendant receiving the death penalty. His attorney told the defendant about the potential charges in the other counties, and about statements made by the defendant to other persons in jail with the defendant. The defendant believed that his attorney told him of these things in order to frighten the defendant into pleading guilty.

The defendant understood that his attorney had obtained a psychiatric examination for him through a motion before the court. Dr. Traugott was the psychiatrist who examined him. The defendant did not receive the written results of Dr. Traugott’s examination until after he entered his guilty plea; however, McGuire had explained the results of the examination to him before entering his plea. McGuire told the defendant that Dr. Traugott’s results were not helpful to the defendant’s case and that, in fact, the doctor’s report essentially destroyed the defendant’s defenses. Upon hearing this, the defendant asked McGuire to get another psychiatrist appointed, as the defendant did not believe the psychiatrist had done what he should have. McGuire advised the defendant that he did not think that the court would favor a second request.

John McGuire, the defendant’s attorney at the guilty plea hearing, testified that he had determined that the defendant may have a possibility of an insanity or intoxication defense so he petitioned the court for the appointment of a psychiatrist. Dr. Traugott was appointed, and he conducted an examination of the defendant. McGuire corroborated the defendant’s testimony that Dr. Traugott’s report was not helpful to the defendant’s case. McGuire stated that he did not receive Dr. Traugott’s written report of his examination of the defendant until after the defendant entered his guilty plea, but that he had obtained the results of the examination by telephone from the doctor prior to the plea. McGuire conveyed the results of the examination to the defendant. After advising the defendant of the doctor’s report, the defendant told McGuire that he wished to persist in his plea negotiations. McGuire admitted that the defendant asked him to get another psychiatrist appointed but that he did not do this.

McGuire stated that he was not satisfied with Dr. Traugott’s methodology in conducting his examination of the defendant. On cross-examination, McGuire admitted that he gave Dr. Traugott all of the defendant’s medical records to review, including Dr. Ziporyn’s records, that Dr. Traugott was aware of the facts of the case, and that the doctor conducted a personal interview of the defendant. McGuire’s primary objection to Dr. Traugott’s methodology was that he did not believe the doctor spent enough time with the defendant. The defendant had told McGuire that the doctor spent only a short time with the defendant; that the doctor and the defendant did not get along very well and that the doctor seemed hostile to the defendant; and that the doctor did not ask the defendant many questions or seem very interested in the defendant. McGuire thought that if Dr. Ziporyn had examined the defendant, the doctor might have found that the defendant had a mental defect which “may” have rendered the defendant insane at the time of the offense.

McGuire testified that he thought the defendant understood the terms of the plea agreement and that the defendant understood if he accepted the plea bargain he would be sentenced to natural life imprisonment without the possibility of parole. On occasion when the defendant expressed that he could obtain an appeal and get his sentence reduced, McGuire advised the defendant that this would not be possible unless the defendant withdrew his guilty plea. McGuire admitted that the defendant entered into the guilty plea primarily to avoid the death penalty.

Based on the foregoing evidence, the court denied the defendant’s motion to withdraw his guilty plea, finding that the defendant did enter his guilty plea understandingly and that while the defendant had indicated he had a history of mental illness and emotional problems, such a history did not render the decision of the defendant involuntary. We find that the court’s determination was proper.

As the defendant correctly states, a guilty plea must be voluntarily, knowingly, and understandingly entered and the record must affirmatively disclose that this was done. (Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709.) Supreme Court Rule 402 was adopted for the purpose of assuring that a guilty plea is intelligently, understandingly, and voluntarily made. (107 Ill. 2d R. 402; People v. Thurston (1975), 25 Ill. App. 3d 900, 324 N.E.2d 1.) In this case, the record reveals that the defendant was thoroughly admonished under Rule 402 and, in fact, the defendant does not allege in his brief that he was not properly admonished. This fact alone gives rise to the inference that the defendant’s plea was understandingly made. Further, the defendant’s clear and articulate responses at the guilty plea hearing and at the motion hearing indicate no lack of understanding by the defendant. The defendant’s claim at his motion to withdraw his guilty plea hearing that he did not understand the court’s admonishments can only appear to be self-serving statements to escape the bargain which he now finds not to his liking. Additionally, McGuire, the defendant’s attorney for the guilty plea hearing, testified at the motion hearing that the defendant did understand the plea agreement.

We next consider the second prong of the defendant’s contention that the court should have granted his motion to withdraw his guilty plea since the court had evidence before it which indicated that the defendant may not have been competent at the time of entering his guilty plea, thereby impairing the defendant’s ability to understand. The evidence which the defendant notes should have placed the court on notice of the defendant’s mental inadequacies was that a psychiatrist had been appointed, on the defendant’s motion, and had examined the defendant, and that the court recommended that the defendant be placed in the psychiatric unit of Menard Correctional Center.

The record does not support the defendant’s contention that the court had sufficient evidence before it to show that the defendant may not have been competent at the time of the guilty plea hearing. The only evidence of the defendant’s possibility of mental inadequacy is the aforementioned facts set out by the defendant and the fact that the defendant had received treatment by Dr. Ziporyn when he was a juvenile. These facts alone were insufficient to raise a bona fide doubt that the defendant was not competent to plead guilty. See People v. Blahuta (1970), 131 Ill. App. 2d 200, 264 N.E.2d 819.

A defendant has a constitutional right not to be convicted if he is unfit; however, the standard for showing a defendant is unfit is that he is unable to understand the nature and the purpose of the proceedings and that he is unable to assist in his defense. (People v. Kraus (1984), 122 Ill. App. 3d 882, 461 N.E.2d 1036; People v. Turner (1982), 111 Ill. App. 3d 358, 443 N.E.2d 1167.) Here, the record demonstrates that the defendant did understand the nature of the proceedings at his guilty plea hearing, and there is no evidence to show that the defendant was unable to assist in his defense. In fact, the defendant’s understanding and ability to assist in his defense are reflected in his asking his attorney to seek a second psychiatric examination. Therefore, it must be concluded that the defendant was competent at the time he entered his guilty plea.

Additionally, the fact that the defendant may have had a prior history of mental illness does not make him incompetent to enter a guilty plea. (People v. Heral (1976), 62 Ill. 2d 329, 342 N.E.2d 34.) It is significant that the defendant, after being examined by a psychiatrist, did not raise a defense of insanity or introduce the psychiatrist’s report into the record. As noted earlier, the defendant's testimony at both hearings indicated that he understood what was transpiring. The circuit court stated that there was nothing in its personal observation of the defendant to alert the court that the defendant was not competent, and we agree that the record does not show any reason why the court should have inquired further to determine the defendant’s competency.

We next consider the defendant’s second issue on appeal. In this issue, the defendant raises a unique contention wherein he challenges the propriety of the circuit court’s ruling on an objection made by the defendant to the State’s Attorney’s questioning of the defendant’s witness and wherein the court ruled favorably for the defendant on the objection. Our research of the case law reveals no cases where a defendant has appealed a ruling favorable to himself. Irrespective of whether the basis of the defendant’s objection was correct, the fact remains that the defendant sought and received the result he desired. Common sense dictates that a defendant should not be allowed to claim error from a ruling he sought and which was in his favor. Therefore, we refuse to find that the court erred when it sustained the defendant’s objection to the State’s Attorney’s questions regarding the results of the psychiatrist’s examination of the defendant where the report had not been entered into evidence and where the defendant’s attorney was asserting that the information contained in the report was protected by the physician/patient privilege.

We note that the basis for the defendant’s argument that the court erred in sustaining the objection was that the defendant’s attorney improperly objected as the information was not protected by the physician/patient privilege as that privilege did not apply and that the attorney/client privilege did not protect this information as that privilege had been waived. Because we have determined that the court cannot be held in error where it rules favorably for a defendant, we will not address whether any of the privileges raised by the defendant were applicable.

The defendant has argued alternatively that his counsel at the motion hearing was ineffective for erroneously objecting to the admission of the psychiatrist’s reports. The standard for reviewing whether counsel is ineffective is a two-prong test: first, that the counsel’s representation fell below an objective level of reasonable representation, and second, that but for the attorney’s sublevel representation, the outcome of the proceedings would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) If the attorney’s alleged incompetence arises out of a matter of trial strategy or tactics, a defendant’s claim of ineffective representation will fail as it does not meet the first prong of the two-prong test. People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.

Here, it cannot be said that the attorney’s representation fell below a standard of adequate representation as the defense attorney objected to the introduction of the psychiatrist’s report as a trial strategy. The motion to withdraw the guilty plea was based in part upon the assertion that the defendant had a meritorious defense of insanity or intoxication. The testimony presented by the defendant and by McGuire both established that the contents of the psychiatrist’s report would have been detrimental and, in essence, would have destroyed the affirmative defenses which the defendant now claimed in his motion to withdraw were meritorious. Therefore, to preserve the defendant’s claim of a meritorious defense, the defendant’s counsel could not have this contradictory document introduced if he had any hope of having the motion to withdraw the defendant’s guilty plea granted. Therefore, since the first prong of the two-prong test for ineffective assistance of counsel has not been met, we find that the defendant’s alternative argument that his counsel was ineffective must fail.

For the foregoing reasons, the judgment of the circuit court of Marion County, denying the defendant’s motion to withdraw his guilty plea, is affirmed.

Affirmed.

WELCH, P.J., and CHAPMAN, J., concur.


author: JUSTICE CHAPMAN

text:
    UNION GESELLSCHAFT FUR METAL INDUSTRIE COMPANY, d/b/a Union Frondenberg USA Company, Plaintiff-Appellant, v. ILLINOIS INSURANCE GUARANTY FUND, Defendant-Appellee.
    Fifth District
    No. 5—88—0584
    Opinion filed October 31, 1989.

      Stephen J. Hough, of Croegaert & Clark, Ltd., of Olney, for appellant.
    Lord, Bissell & Brook, of Chicago (Don W. Fowler, Hugh C. Griffin, and Nancy Shaw, of counsel), for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Union Gesellschaft Fur Metal Industrie Company (Union), d/b/a Union Frondenberg USA Company, is a West German corporation registered in the State of Illinois engaged in the business of manufacturing bicycle pedals. Union maintained a products liability insurance policy issued by Ideal Mutual Insurance Company (Ideal). This policy provided Union with coverage of up to $500,000 for each occurrence and was in effect for a period beginning January 21, 1983, and ending November 21, 1984.

On February 7, 1985, Ideal was liquidated by order of the New York Supreme Court. This order of liquidation provided that any and all claims of its insured had to be filed with the liquidator on or before February 7, 1986. On January 29, 1986, Union filed with the liquidator proofs of claim for all claims of which Union had knowledge which arose during the period that Ideal’s policy with Union was in effect. Union also filed a contingent claim as part of its proof of claim which included the following language:

“(A) Claim is made and notice is given for each known claim/ suit made against UNION FRONDENBERG of which UNION FRONDENBERG has knowledge as of the date hereof, which claim/suit arose during the period of IDEAL coverage of UNION FRONDENBERG from January 1, 1983 to November 21, 1984.
(B) In addition to the claims referred to in paragraph A above, UNION notifies the liquidator of claims coverage for each and every claim or suit after the date hereof, contingent or real, wherein a person was allegedly injured due to a defective product manufactured by UNION FRONDENBERG, which injury/claim arose during the period of time that UNION FRONDENBERG was covered by a policy of product liability insurance written by Ideal Mutual Insurance Company, for the period January 1, 1983 to November 21, 1984, even though such claim/suit is unasserted and unknown to UNION FRON-DENBERG, the Illinois or any state guaranty fund, or the New York Department of Insurance Liquidator Bureau as of the date hereof.”

Subsequent to February 7, 1986, Union received notice of two suits which arose during the period of time that Ideal’s insurance policy had been in effect. Union forwarded all information that it had regarding these suits to the Illinois Insurance Guaranty Fund (Illinois Fund). The Illinois Fund denied any fund coverage for the two claims because specific notice of the claims was not given to the liquidator prior to February 7,1986.

Union filed a complaint for declaratory judgment in the circuit court of Richland County. Union asked the court to enter an order declaring coverage be afforded for the above two claims as well as any other claims that might arise in the future as a result of injuries that occurred during the period that Ideal’s products liability policy was in full force and effect. Illinois Fund subsequently filed a motion for summary judgment, asserting that a claim not timely filed is not a covered claim, and even though a general proof of claim was timely filed by Union, it did not contain specific information concerning the two claims. The Illinois Fund also argued that it should not be responsible for any other claims that Union may have in the future as a result of injuries that occurred during the period that Ideal’s products liability policy was in full force and effect. Union filed its reply to defendant’s motion for summary judgment, the court heard arguments, and summary judgment was granted in favor of Illinois Fund. It is from this order that this appeal arises.

Union is engaged in the business of manufacturing bicycle pedals. These bicycle pedals are shipped to bicycle manufacturers and retail shops throughout the United States. Union argues that due to the nature of products liability claims and due to the fact that bicycles are primarily used by minors, it is impossible for it to file within one year all specific claims that arose during the period that the policy was in full force and effect. Union contends on appeal that the court erred in entering summary judgment in defendant’s favor since the contingent claim filed by Union on January 29, 1986, constituted a timely claim as to potential covered claims which could be filed and which arose during that period that Union was covered by Ideal’s policy. We disagree.

The purpose of the Illinois Insurance Guaranty Fund is to “provide a mechanism for the payment of covered claims,” not necessarily all claims. (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 73, par. 1065.82.) Union cites the case of Lucas v. Illinois Insurance Guaranty Fund (1977), 52 Ill. App. 3d 237, 367 N.E.2d 469, for the proposition that the statutory purpose of the Fund is to place claimants in the same position that they would have been in if the liability insurer had not become insolvent, and that, therefore, its contingent claims must be covered by the Fund. In Lucas the question was not whether plaintiff’s claim was a covered claim under the act, but whether the act required that the amount collected by the claimant from his own carrier be deducted from the policy limits of the policy issued by the insolvent carrier. The court, in holding in the affirmative, did not address the issue of covered versus noncovered claims.

It is uncontroverted that the court’s order of liquidation in the instant case provided that any and all claims of the insured had to be filed on or before February 7, 1986. Union contends that the two specific claims it filed after February 7, 1986, should not have been denied because defendant had notice of the claims via the contingent claim Union filed prior to February 7, 1986. Union argues that the purpose of the act was to eliminate the risk for policyholders doing business with an insolvent insurer. Although that indeed is the purpose of the act, the timely filing requirement of section 540.5 (Ill. Rev. Stat. 1987, ch. 73, par. 1065.90 — 5) indicates that the legislature did not intend to make this protection absolute, indemnifying all claims, including contingent claims.

Legislative intent should be sought primarily from the language of the statute. (Franzese v. Trinko (1977), 66 Ill. 2d 136, 139, 361 N.E.2d 585, 587.) The express language of section 540.5 mandates that in the instant case in order to be considered covered claims, notice of the two specific claims had to have been given in writing to the liquidator prior to the last date fixed for the timely filing of proofs of claim, which in this case was February 7, 1986. The statute does not prescribe with particularity what a proof of claim is to contain, but the statute does state that “[a] covered claim *** is a claim which appears on the books and records of the insolvent company as of the date of the Order of Liquidation or a claim for which notice is given in writing *** prior to the earlier of the last date fixed for the timely filing of proofs of claim *** or 18 months after the entry of the Order of Liquidation.” (Ill. Rev. Stat. 1987, ch. 73, par. 1065.90 — 5.) If we were to hold that the filing of a contingent claim was sufficient for purposes of being deemed a covered claim, the statutory filing deadline would have no meaning. Liquidation and distribution of the insolvent company’s assets could not be effected until all potential statutes of limitation had run.

The requirement in the statute that claims be filed on or before the last date fixed for the filing of proofs of claim evidences an intent by the legislature to provide a cutoff date after which the Illinois Insurance Guaranty Fund is no longer obligated to indemnify claims. Union’s ignorance of the two specific claims against it is not recognized by statute to forgive a late filing of notice of the claims. While Union could not have filed any information respecting the two specific claims by the filing deadline of February 7, 1986, Union’s plight is not to be remedied by this court. Courts have no legislative powers, and their sole function is to determine and, within constitutional limits of the legislative power, give effect to the intention of the lawmaking body. Droste v. Kerner (1966), 34 Ill. 2d 495, 504, 217 N.E.2d 73, 79.

The contingent claim did not constitute a valid proof of claim; therefore, the trial court did not err in entering summary judgment in defendant’s favor.

Affirmed.

WELCH, P.J., and HOWERTON, J., concur.