author: JUSTICE GREEN JUSTICE TRAPP,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE BURKHART, Defendant-Appellant.
    Fourth District
    No. 4—82—0738
    Opinion filed July 26, 1983.
    TRAPP, J., dissenting.

      Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On April 30, 1979, a petition was filed in the circuit court of McLean County alleging defendant, George Burkhart, to be a sexually dangerous person within the meaning of section 1.01 of the Sexually Dangerous Persons Act. This section, at all times pertinent, provided:

“As used in this Act:
All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children, are hereby declared sexually dangerous persons.” (Ill. Rev. Stat. 1977, ch. 38, par. 105-1.01.)

The petition was filed in a criminal proceeding where defendant (1) had been charged in a six-count indictment, and (2) eventually entered a plea of guilty to one of the counts.

Defendant had entered his plea of guilty pursuant to an agreement with the State that if he would enter the plea and admit the allegations of the petition, he would (1) receive a sentence of six years’ imprisonment, and (2) if found to be sexually dangerous by court-appointed psychiatrists, be committed as sexually dangerous. The parties agreed that incarcerations imposed would run concurrently. On November 2, 1979, the court imposed the six-year sentence and pronounced, in open court, an order declaring defendant to be sexually dangerous and committing him as such. The pronouncement required the submission of a written judgment which was signed and placed on file on November 5, 1979. The remaining counts of the indictment were nol pressed on November 2, 1979, apparently after the pronouncement of the commitment order.

On July 1, 1982, defendant filed in the trial court the instant application maintaining that he had recovered (Ill. Rev. Stat. 1981, ch. 38, par. 105—9). After an evidentiary hearing on the application, the trial court entered an order on October 12, 1982, denying all relief. Defendant appeals, contending (1) the order finding him sexually dangerous was void, and (2) the denial of his application was contrary to the manifest weight of the evidence. His contention that his commitment was void is based on theories raised for the first time on appeal and it attacks a final order from which no appeal was taken. However, a void order can be attacked at any time. Filosa v. Pecora (1974), 18 Ill. App. 3d 123, 309 N.E.2d 356.

We affirm the decision of the trial court.

Defendant’s contention that the original commitment was void is based on the concurrent validity of three theories, each of which presents complicated questions. These theories are that: (1) The Sexuality Dangerous Persons Act prohibits adjudicating a defendant to be sexually dangerous based upon the same conduct for which he has been convicted in a concurrent criminal proceeding; (2) that procedure was followed in this case; and (3) the statutory violation deprived the court of subject matter jurisdiction to rule on the petition.

Section 3 of the Act provides for the initiation of proceedings. It states that the prosecution may file a petition in the circuit court alleging that a person is sexually dangerous when it appears to the prosecutor that the person is sexually dangerous and that person “is charged with a criminal offense.” (Ill. Rev. Stat. 1977, ch. 38, par. 105—3.) Section 9 of the Act concerns proceedings for discharge of a person previously adjudged to be sexually dangerous. It states, in part, that: “Upon an order of discharge every outstanding [criminal charge], the basis of which was the reason for the present detention, shall be quashed.” (Ill. Rev. Stat. 1977, ch. 38, par. 105—9.) Even though the Act has no provision expressly requiring the existence of pending charges at the time of the adjudication of sexual dangerousness, defendant asserts that both the purpose of the statute and precedent require such a construction be placed upon the statute. For reasons subsequently stated, we need not decide this question.

The supreme court case relied on by defendant is People v. Redlich (1949), 402 Ill. 270, 83 N.E.2d 736. There, a defendant was charged with a sexual offense. The prosecutor filed a petition under a statute similar to the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1947, ch. 38, par. 820 et seq.) recommending commitment of the defendant. The defendant refused to comply with an order directing him to submit to examination by psychiatrists and was held to be in direct contempt of court and sentenced to jail until he complied. The court then tried the defendant on the criminal charge and defendant was convicted and sentenced. He then appealed the contempt conviction. The supreme court reversed the conviction holding that: (1) The purpose of the statute, like similar legislation, was to determine whether the accused had a mental disorder such that he should not be tried for the criminal charge until he had recovered from the mental disorder; (2) the contempt proceeding was civil in nature and was for the purpose of compelling the defendant to submit to the examination; and (3) as the defendant had been convicted, the trial court could no longer stay the prosecution. The court reasoned that as there would be no purpose in determining the defendant’s mental condition after he had been convicted, the court would have no jurisdiction to do so and any order on that issue would be void.

As the Redlich court indicated, the focus of the legislation involved there was whether the accused had a mental condition preventing trial until recovery. That legislation stated that upon determination of recovery, the person should be committed to the sheriff of the county where the criminal charges were made so that trial of those charges could proceed. (Ill. Rev. Stat. 1947, ch. 38, par. 825.) Section 9 of the Sexually Dangerous Persons Act states that under similar circumstances those charges which were the basis of the commitment are to be quashed. The purpose of the legislation is no longer to determine whether the defendant can stand trial, but to give the defendant an opportunity to receive help for his propensity to commit sexual offenses and to protect the public from the defendant until release is deemed desirable.

In People v. Patch (1972), 9 Ill. App. 3d 134, 293 N.E.2d 661, a person on conditional release under section 9 of the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1965, ch. 38, par. 105—9) was convicted of a deviate sexual assault committed shortly after the conditional release. Subsequently, the conditional release was revoked because of the same conduct. On appeal from the order of revocation, the appellate court reversed. It cited Redlich for the proposition that after a conviction for a criminal offense, the State could not then proceed to commit a person as sexually dangerous based upon the same criminal conduct. The court concluded that by analogy the State could not obtain a conviction and then have a conditional release revoked for the same conduct.

In People v. Harris (1966), 77 Ill. App. 2d 300, 222 N.E.2d 107, a juvenile was charged under both a juvenile petition and under the Sexually Dangerous Persons Act. After evidence was heard, the sexually dangerous person’s petition was dismissed with leave to reinstate and the juvenile was found to be a delinquent and committed to the Illinois Youth Commission. Subsequently, the sexually dangerous person’s petition was reinstated, a hearing held, and the minor found to be sexually dangerous. That order was reversed on appeal. This court, citing Redlich, held that: (1) Section 3 of the Act was violated in that there were no criminal proceedings pending when the petition was filed; and (2) even if the juvenile proceedings were deemed to be criminal in nature, they were at an end, and subsequent proceedings would be a nullity.

We are not persuaded that the procedure used here violated the Act. The only express statutory requirement for pendency of criminal charges is that contained in section 3 that the charges be pending when the petition is filed. Unlike in Harris, a six-count indictment was pending when the petition was filed here. Unlike in Redlich and Harris, criminal charges were still pending after the court pronounced defendant to be a sexually dangerous person. Count I of the indictment, to which defendant had pleaded guilty, charged him with the lewd fondling of a child on December 6, 1978. Certain other counts charged somewhat similar sexual conduct with the same child on December 2, 1978, while still other counts charged somewhat different sexual conduct with the same child in November 1978.

The five counts of the indictment were nol pressed on March 2, 1979, the same day the oral pronouncement was made. The report of proceedings does not make reference to the nol pros, but the docket indicates it took place after the oral pronouncement that the defendant was a sexually dangerous person. However, the pronouncement required submission of a written judgment. That was not entered until March 5, 1979. Section 3.01 of the Act (Ill. Rev. Stat. 1977, ch. 38, par. 105—3.01) provides that proceedings under the Act, except as to burden of proof shall be civil in nature and that the Supreme Court Rules shall be applicable. Supreme Court Rule 272 then, as now, stated that when the trial court requires submission of a written final judgment “the judgment becomes final only when the signed judgment is filed” (73 Ill. 2d R. 272). Thus, by the terms of Rule 272 final judgment on the sexually dangerous person’s petition was not entered until after disposition of all of the criminal charges.

In West v. West (1979), 76 Ill. 2d 226, 390 N.E.2d 880, the supreme court noted that the purpose of Rule 272 was to determine the timeliness of filing a notice of appeal. Section 801 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 801) provided that it was applicable to proceedings upon which no judgment had been entered as of the effective date of the Act. The supreme court held that act to be inapplicable to a judgment pronounced before its effective date, but not entered under Rule 272 until after the effective date. The court treated the lapse of time between the pronouncement of the order and its entry insignificant under those circumstances. Here, there also is no question of timeliness of filing notice of appeal. We likewise treat the lapse of time between pronouncement and entry of the order as insignificant in determining whether the court could properly enter the order. It would seem totally illogical to use Rule 272 as a vehicle for determining that a court, having power to enter an order at the time it was pronounced, loses jurisdiction to complete the formal entry of the order because of the dismissal of other pending matters in the interim.

The proceeding here, unlike in Redlich and in Harris, was not one where the State was attempting to have the accused committed merely for the same conduct for which he had been convicted in the underlying criminal proceeding. Section 5 of the Act (Ill. Rev. Stat. 1977, ch. 38, par. 105—5), at all times pertinent, stated that “[a]t the hearing on the petition it shall be competent to introduce evidence of the commission by the respondent of any number of crimes together with whatever punishments, if any, were inflicted.” Thus, the petition may be based, at least in part, upon conduct for which the respondent has been convicted. Both the petition here and the evidentiary matters of record before the court at the time of adjudication showed that the State was relying on several acts of defendant in addition to that for which he was convicted in the underlying proceeding.

We need not decide whether a trial court can find a person guilty of a criminal charge, sentence that person on that charge and then declare that person to be sexually dangerous merely because of that conduct. Here, criminal charges were pending not only when the petition was filed, but at all significant times thereafter. The criminal conduct for which the defendant was convicted was only part of the grounds for the determination that he was sexually dangerous. We need not address other complicated jurisdictional questions raised by defendant because we hold that no violation of the Sexually Dangerous Persons Act occurred. The judgment of commitment was not void.

We now turn to the question of the propriety of the trial court’s denial of defendant’s application claiming recovery. Section 9 of the Act provides that at the hearing upon an application such as that filed by defendant here, the court shall render judgment as follows:

“If the patient is found to be no longer dangerous, the court shall order that he be discharged. If the court finds that the patient appears no longer to be dangerous but that it is impossible to determine with certainty under conditions of institutional care that such person has fully recovered, the court shall enter an order permitting such person to go at large subject to such conditions and such supervision by the Director as in the opinion of the court will adequately protect the public.” Ill. Rev. Stat. 1981, ch. 38, par. 105—9.

The only witness to testify at the hearing on defendant’s application was Dr. Frank M. Perez, a psychiatric consultant to the Department of Psychiatry at Menard Correctional Center and the person responsible for reviewing defendant’s progress during his confinement.

Dr. Perez testified that: (1) The defendant had been cooperative in the program of therapy and had made progress in dealing with his frustrations and disappointments; (2) the defendant need not be considered physically dangerous; and (3) the defendant could be better treated for his condition in a less restrictive environment. With respect to the possibility of the defendant performing successfully on a conditional release program, Dr. Perez also testified that the defendant could be expected to manage himself appropriately if he were in an environment with no children and if he were to continue his psychiatric treatment on an outpatient basis. In the opinion of Dr. Perez, defendant would be unlikely to achieve much more improvement while incarcerated and would be more likely to progress if released into a controlled environment in which supervision and therapy were available. Dr. Perez warned that defendant might undergo difficult frustration and that problems might arise if he were to live with children.

Defendant does not contend that he should have been granted an absolute discharge. Rather, he maintains that the court’s refusal to grant him a conditional discharge was contrary to the manifest weight of the evidence. In the order denying defendant’s application, the court stated that there was no testimony that defendant (1) had recovered, (2) was no longer sexually dangerous, or (3) appeared to be no longer sexually dangerous. Defendant asserts that the court would not grant a conditional discharge unless the defendant presented evidence that he was completely recovered. We do not agree. Recovery was not a required factor for any type of discharge, but it was relevant on the question of defendant’s dangerousness.

Dr. Perez did not state directly whether defendant did or did not appear to be dangerous. He did state that defendant was not physically dangerous and he indicated that a better determination on that point could be made if defendant were granted a conditional discharge requiring supervision and therapy.

The case differs from People v. Richardson (1975), 32 Ill. App. 3d 621, 335 N.E.2d 619, where the denial of a conditional discharge was held to be contrary to the manifest weight of the evidence. There, the testifying psychiatrist stated that the patient was mentally ill, but not sexually dangerous. Here, in the absence of testimony as to whether the defendant appeared to be sexually dangerous and because of the testimony that he could relapse into his prior conduct if sufficiently frustrated and in the continual presence of children, we cannot say that a determination that defendant appears to no longer be sexually dangerous is clearly evident. We do not interpret the testimony of Dr. Perez that defendant was not “physically dangerous” to indicate that he would not commit acts in regard to children that would harm them psychologically. In balancing the interests of society in protecting children from psychological damage against the better chance for treating defendant on a conditional discharge, the trial court did not abuse its discretion. People v. Whitney (1975), 33 Ill. App. 3d 729, 338 N.E.2d 233.

The judgment of the circuit court is affirmed for the foregoing reasons.

Affirmed.

MILLER, J., concurs.

JUSTICE TRAPP,

dissenting:

The rationale and disposition of the majority turns the Sexually Dangerous Persons Act and its present interpretation in case law upon its head.

In a broad sense the statutory scheme for treating sexually dangerous persons has reversed its course from its inception to the present time. As explicated in People v. Redlich (1949), 402 Ill. 270, 83 N.E.2d 736, the initial Criminal Sexual Psychopathic Persons Act contemplated a mental disorder of the nature and quality then designated “insanity” so that a person so defined should not be required to plead or stand trial until he had been found to be recovered. Trial upon the charged offense was required following treatment and recovery from the mental disability found by the commitment. Redlich; People v. Sims (1943), 382 Ill. 472, 47 N.E.2d 703.

The Sexually Dangerous Persons Act adopted in 1955 provided a different course and expressed a different rationale. In section 9 (Ill. Rev. Stat. 1981, ch. 38, par. 105—9) it provided for discharge of a person found to be a sexually dangerous person when he was subsequently found to be recovered, or a conditional discharge under supervision and culminates in the language:

“Upon an order of discharge every outstanding information and indictment, the basis of which was the reason for the present detention, shall be quashed.”

Consistently, that section also provided that if there was a violation of a conditional discharge under supervision, the conditional release should be revoked and the person recommitted under the terms of the original commitment. A rational interpretation of such text is that the legislature created an alternative of treatment to that of prosecution upon the charged offense. People v. Patch (1972), 9 Ill. App. 3d 134, 293 N.E.2d 661.

In People v. English (1964), 31 Ill. 2d 301, 201 N.E.2d 455, the court considered the issue of privilege against self-incrimination where the court ordered a psychiatric examination as provided by the statute. The opinion described the purpose of the Act in the language:

“Since the Sexually Dangerous Persons Act provides for involuntary confinement, although it be for the treatment of the defendant rather than punishment for a crime, it is natural that some of the same safeguards which are applicable in a criminal prosecution be applied to the proceedings under the act.” 31 Ill. 2d 301, 304, 201 N.E.2d 455, 458.

In People v. Shiro (1972), 52 Ill. 2d 279, 287 N.E.2d 708, defendant was committed as a sexually dangerous person. He was thereafter transferred from the psychiatric division to the penitentiary where he received no treatment. Defendant sought a hearing claiming recovery. The psychiatrist reported that it could not be stated definitively whether defendant remained dangerous, and the trial court dismissed the petition for discharge. The supreme court stated:

“The defendant’s charge that he had been transferred from the psychiatric division of the penitentiary to the general division of the penitentiary, where he has been receiving no treatment directed to his recovery should not have been summarily dismissed. Those persons who are adjudged sexually dangerous under the Act are committed to the care of the Director of Corrections, but this does not imply that they are to be treated as criminal prisoners. The Act states that the Director of Corrections ‘shall provide care and treatment for the person committed to him designed to effect recovery’ and that such persons shall be held ‘in any facility in the Department of Corrections or portion thereof set aside for the care and treatment of sexually dangerous persons.’ (Emphasis supplied.) Ill. Rev. Stat. 1969, ch. 38, par. 105—8.” 52 Ill. 279, 283, 287 N.E.2d 708, 711.

In People v. Pembrock (1974), 23 Ill. App. 3d 991, 320 N.E.2d 470, the court.discussed the burden of proof required to support commitment as a sexually dangerous person. The court stated:

“While both the civil proceedings in question and criminal prosecutions may result in a loss of liberty, substantial differences exist between them. Foremost among these are that in a commitment under the Act there is no inference of moral blameworthiness since a finding of sexual dangerousness indicates that a defendant’s inability to conform to the dictates of the law is the product of a mental illness and, secondly, commitment under the Act, unlike criminal incarceration, is not intended as punishment.” (23 Ill. App. 3d 991, 995, 320 N.E.2d 470, 473, aff'd (1976), 62 Ill. 2d 317, 342 N.E.2d 28.)

See also People v. Sly (1980), 82 Ill. App. 3d 742, 403 N.E.2d 72.

Upon no more authority than the apparent statement of one assistant State’s Attorney, that another assistant State’s Attorney said it could be done, the prosecution here was permitted to accumulate two inconsistent forms of incarceration — one for punishment as a crime and one as a supposed treatment for a mental condition. Since punishment of incarceration here imposed initially destroys and makes useless any treatment as a sexually dangerous person, the purpose and requirements of the Sexually Dangerous Persons Act are judicially ignored. The order finding defendant a sexually dangerous person should be treated as void and vacated. See People v. Redlich (1949), 402 Ill. 270, 83 N.E.2d 736, and People v. Patch (1972), 9 Ill. App. 3d 134, 293 N.E.2d 661.


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
    LAWTER INTERNATIONAL, INC., Plaintiff-Appellee and Cross-Appellant, v. JOHN R. CARROLL et al, Defendants-Appellants—(James A. Carroll, et al, Defendants-Cross-Appellees).
    First District (4th Division)
    Nos. 82—3050, 83—123 cons.
    Opinion filed July 7, 1983.

      Vedder, Price, Kaufman & Kammholz, of Chicago, for appellants.

      Albert E. Jenner, Jr., of Chicago, for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

These consolidated appeals and cross-appeal involving preliminary injunctive relief derive from an action instituted by the plaintiff, Lawter International, Inc. (Lawter), to restrain the defendants, John R. Carroll, James A. Carroll, Richard M. Bradley and Carroll Scientific, Inc., from competing with Lawter and from disclosing trade secrets. Three broad issues are raised by the parties on appeal: by John R Carroll, whether the trial court erred in issuing a preliminary injunction against John Carroll on November 16, 1982; on cross-appeal by Lawter, whether the trial court erred in failing to extend preliminary injunctive relief to include James Carroll and Richard Bradley on November 16, 1982; and a subsequent cross-appeal by Carroll Scientific as to what is the legal effect of the preliminary injunction which the court issued against Carroll Scientific on January 11, 1983.

The original complaint filed by Lawter in this action arose out of the fact that John Carroll was vice-president of manufacturing of Dyall Products, Inc., a company which made wax compounds for printing ink. John Carroll also owned an option to purchase 25% of the stock in Dyall.

In 1977, Dyall began to negotiate a sale to Lawter. Pursuant to these negotiations, Lawter demanded that John Carroll enter into an employment agreement with Dyall which would become part of the sale to Lawter. The agreement contained a noncompetition covenant, which forbade competition with Lawter for the longer of five years from the date of the contract or three years after termination of employment, and a trade secrets covenant with no apparent time limit, which forbade the use or disclosure of Lawter’s trade secrets.

Specific relevant language in the noncompetition covenant is the following:

“Non-competition
A. Employee *** shall not, directly or indirectly, engage in competition with *** Lawter Chemicals, Inc. or any of its subsidiaries:
(i) In any line of business which any of such corporations is presently conducting, or
(ii) In any line of business which any of such corporations may conduct in the future with respect to which employee may become personally involved pursuant to his employment hereunder and employee shall not render assistance of any kind to any person, firm or any corporation who or which may be in such competition.” (Emphasis added.)

The covenant then contains a detailed description of the business presently being conducted by Lawter. This covenant closes with language which states: “Employee shall not be bound by the provisions of this subparagraph A in the event of termination of his employment hereunder by the company without a breach hereof by the Employee.” (Emphasis added.)

Specific relevant language in the trade secrets covenant is the following:

“Trade Secrets
B. Employee recognizes and acknowledges the value to the Company of its business secrets, including the methods, processes, formulae, inventions, research, know-how, technical data, marketing information, and other proprietary information developed by it and to be developed by it in the future in the conduct of its business in the production of chemicals and other products. Employee agrees *** that such shall be and remain in the exclusive property of the Company and that he shall have no rights thereto or interest therein. Employee agrees that *** he will hold such trade secrets confidential and will not disclose the same to any other person, firm or corporation * * *
Employee agrees that upon any termination of his employment by the Company *** Employee will deliver to the Company all documents, records, notebooks and similar material containing any of such trade secrets which are at that time in his possession.” (Emphasis added.)

John Carroll exercised his option to purchase the Dyall stock and upon closing of the sale of Dyall to Lawter on January 3, 1978, received payment from Lawter in the amount of $550,000. On this date, John Carroll executed a letter to Dyall in which he resigned as vice-president-manufacturing of Dyall, but specifically reaffirmed the fact that the letter did not constitute “a resignation from my position as an Employee *** under the Employment Agreement ***.” John Carroll was then employed by Lawter in various capacities including Lawter’s National Sales Manager from January 3, 1978, until he resigned four years later.

Sometime in August 1981 while still employed by Lawter, John Carroll began planning to go into business to manufacture wax compounds for printing ink. Toward this end, John Carroll joined with his brother James Carroll, who was also employed by Lawter, to form Carroll Scientific, Inc. A loan for $315,000 was procured from the New Lenox State Bank. In order to procure the loan, the president of the New Lenox Bank was taken on tour of Lawter’s Dyall plant. James Carroll then began to purchase equipment for Carroll Scientific and also began designing a plant. Over the next few months, the Car-rolls devised a marketing plan for Carroll Scientific and a sales effort was commenced by John Carroll which included calls on Lawter/Dyall customers. As part of the planning process, John Carroll also consulted with an attorney who advised him that the noncompetition covenant in his employment agreement with Lawter was unenforceable.

On January 15, 1982, John Carroll resigned from Lawter and on January 26, 1982, James Carroll also resigned. Richard M. Bradley, a chemist with Lawter/Dyall, also resigned from Lawter at that time and became affiliated with Carroll Scientific.

On March 4, 1982, Lawter commenced the immediate action against defendants John Carroll, James Carroll, Richard Bradley and Carroll Scientific, Inc. Lawter filed a verified complaint for injunctive relief, an accounting and damages; an emergency motion for a temporary restraining order and preliminary injunction; and a motion for expedited access to the premises of Carroll Scientific, Inc. In the underlying action, Lawter prayed that the defendants be enjoined from using the confidential proprietary business information of Lawter which the defendants had obtained or learned while in its employ; that the defendants be enjoined from soliciting and contacting Lawter/Dyall’s customers for possible sale of competitive products and that the defendants be enjoined from competing with Lawter/Dyall. The temporary restraining order also directed the defendants to return any and all Lawter documents in their possession.

On the same day, March 4, 1982, and prior to the hearing on the motion for the temporary restraining order, the defendant filed a verified answer denying the material allegations of the complaint and also interposing an affirmative defense that John Carroll’s noncompetition covenant was unenforceable under Illinois law because among other things it had no geographical limitations.

The trial court entered the temporary restraining order against all defendants on March 4, 1982. The order specifically stated that its purpose was “to maintain defendant’s status quo” until the motion on a preliminary injunction could be fully considered. The order also set specific dates for the hearing on the motion for preliminary injunction. This order was appealed by the defendants on procedural grounds and affirmed in Lawter International, Inc. v. Carroll (1982), 107 Ill. App. 3d 938, 438 N.E.2d 590.

In substance, the temporary restraining order stated that Lawter had a clear right to the protection of its confidential proprietary business information; that Lawter had a clear right to protection under the noncompetition and confidential proprietary business information covenants in John Carroll’s employment agreement; and that John Carroll and James Carroll possessed certain confidential proprietary business information belonging to Dyall which might be used by Carroll Scientific when it competed with Dyall. The court also concluded that Lawter was likely to prevail on the merits of its claim that John R. Carroll had breached valid noncompetition and confidential business information covenants in the employment agreement and on its claim that the defendants James Carroll, Bradley and Carroll Scientific had joined with John Carroll in conspiring to breach their fiduciary duties to Lawter and to misappropriate Lawter’s proprietary business information. The court also concluded that the plaintiff would suffer serious, immediate and irreparable injury for which no adequate remedy at law existed if a temporary restraining order was not granted.

While the hearing on the preliminary injunction was in progress and the temporary restraining order was on appeal, discovery between the parties went forward. Lawter discovered that the defendants had in their possession several boxes of business information belonging to Dyall. The boxes contained documents relating to dollar volume sales to Dyall customers; the location, shipping address, telephone number and contact person for each customer; information on the quantity of products sold to each customer; the accounts receivable generated through the sales; lists of Dyall’s major suppliers with information on quantities ordered; plant costs and expenses; profitability reports; operating statements and a laboratory notebook of a Dyall laboratory chemist. Lawter also was able to ascertain that the defendants had devised certain product formulae from Dyall formulae.

During the duration of these extensive hearings on .the preliminary injunction, the trial court kept the temporary restraining order in place in order to preserve the status quo.

On November 16, 1982, the trial court entered its order on the preliminary injunction. Based upon the evidence before it, the trial court made numerous findings of fact and law which are summarized here. The court found that John Carroll had knowingly breached covenants in his employment agreement prohibiting competition, appropriation and disclosure of confidential business information; that the covenants in the employment agreement were ancillary to the sale of Dyall to Lawter; that the agreement survived the sale and that Carroll had received $550,000 in consideration for the agreement and the sale of his interest in Dyall; that Lawter would sustain irreparable injury if John Carroll were allowed to use the confidential information including customer lists which he had acquired during his association with Dyall; that Lawter had shown a likelihood of success on the merits because the purpose of the noncompetition covenant was primarily to protect Lawter from losing its “long-standing, near permanent customer relationships” to a former employee and not to “seek to preclude JOHN R. CARROLL from soliciting every ink maker in the world”; that John Carroll had already solicited 10 of the largest Lawter/Dyall accounts located in the United States and Canada; that the five-year time limit after the date of contract or three-year time limit after the date of employment termination for the covenant was not unreasonable in relation to the nature of the interest that Lawter was trying to protect; that John Carroll had acquired certain confidential information regarding formulae and valuable documents which he had misappropriated and that the return of such documents did not preempt preliminary injunctive relief.

In regard to James A. Carroll and Richard Bradley, the court found that the evidence did not support the conclusion that they had conspired with John to breach his employment agreement, to breach their independent fiduciary obligations to the plaintiff, to misappropriate documents containing the plaintiffs confidential business information or that any judicial protection should be extended to Lawter on their behalf for a period beyond the time required for reverse engineering which had already passed. Finally, the court found that there was no reason under these facts to engage in any balancing of the equities and similarly under these facts there was no showing that the plaintiff had come before the court with unclean hands.

After making these findings of fact and law, the court entered the following order, which is quoted and summarized below:

1. John Carroll was preliminarily “enjoined and prohibited from soliciting or otherwise contacting any long-term existing customers of LAWTER or its Dyall Products Division for the purpose of selling or offering products competitive with the products sold by LAWTER or its Dyall Products Division.”
2. John Carroll was also preliminarily enjoined from “having any interest, financial, or otherwise, direct or indirect, in any business entity which solicits or otherwise contacts any long-term existing customers of LAWTER or its Dyall Products Division for the purpose of selling or offering products competitive with products sold by LAWTER or its Dyall Products Division.”
3. John Carroll was preliminarily enjoined from “revealing to anyone or using for competition with LAWTER or its Dyall Products Division, LAWTER’s or its Dyall Products Division’s confidential product formulas, manufacturing and protection processes, marketing information, research and development information, and customer requirements information, whether written or memorized based in any way” upon certain plaintiff’s exhibits.
4. “The Temporary Restraining Order as to JAMES A. CARROLL and RICHARD M. BRADLEY, only, is hereby dissolved.” (Emphasis added.)

It is important to note that neither the court’s findings of fact or law nor the above order made any specific, independent mention of Carroll Scientific.

Based upon these conclusions of fact and law, the court then entered an order which preserved the injunctive relief against John R. Carroll and denied injunctive relief as to defendants, James Carroll and Bradley.

John Carroll appealed from this preliminary injunction order on November 17, 1982, and Lawter cross-appealed shortly thereafter. Although Carroll Scientific is named in the notice of cross-appeal, no relief is requested as to Carroll Scientific in the cross-appeal. Carroll Scientific is the subject of the January 11, 1983, order and the appeal from that order. John Carroll claimed in his appeal that the court erred in its conclusion that the employment agreement was valid and a proper foundation upon which to grant Lawter a preliminary injunction enjoining his business activities. Lawter claimed in its cross-appeal that the court erred when it failed to include James Carroll and Bradley in the order for a preliminary injunction.

In response to certain actions taken by the defendants while these appeals were pending, Lawter filed an emergency motion with the trial court on December 10, 1982, 3^2 weeks after the preliminary injunction against John Carroll. In its motion and supporting brief, the plaintiff alleged that within three days of the issuance of the preliminary injunction, the defendants had put a secret scheme into operation to circumvent and violate the terms of the preliminary injunction. Pursuant to this alleged scheme, Lawter charged that Carroll Scientific had commenced operation as a business entity with the purpose of soliciting and selling competing products to Dyall customers and that James Carroll had agreed to purchase John Carroll’s entire interest in Carroll Scientific by way of an installment purchase plan. Under this installment plan, James Carroll had already issued certain promissory notes to John Carroll. According to Lawter, by virtue of this scheme, the defendants were able to completely shift John Carroll’s interest in Carroll Scientific to James Carroll and to begin to employ John Carroll’s assets to compete with Lawter in direct violation and evasion of the trial court’s preliminary injunction order. In its prayer for relief, Lawter requested the court to issue four separate orders: (1) an order compelling John Carroll to comply fully with the November 16, 1982, order; (2) an order enjoining James Carroll and Carroll Scientific from soliciting long-term existing customers of Lawter “until such time as the court deems appropriate to insure that the equity intended by the order of November 16, 1982 is accomplished”; (3) an order “specifically including Carroll Scientific, Inc. within the reach” of the November 16, 1982, order; and (4) an order enjoining James Carroll from using Lawter’s alleged confidential business information similar to the injunction the trial court had entered against John Carroll.

On December 29, 1982, the trial court heard oral arguments on this emergency motion. Two discovery depositions, both dated December 6, 1982, were placed in evidence. In one of these depositions, John Carroll admitted that he had signed a purchase agreement with his brother James on November 22. Under this agreement, John sold James his entire interest in Carroll Scientific. The purpose of the transaction, according to John, was to conform to the requirements of the preliminary injunction by eliminating his involvement with Carroll Scientific. John also stipulated that Carroll Scientific was a business entity which “has or intends to solicit long-term existing customers of Lawter *** for the purpose of selling them *** competitive *** products.”

In the other discovery deposition, James Carroll admitted that he had purchased his brother’s interest in Carroll Scientific. On the advice of counsel, James refused to answer questions relating to actions taken by Carroll Scientific since the issuance of the preliminary injunction.

On January 11, the trial court issued the order partially quoted and partially summarized below:

“1. The court reiterates its intentions expressed in its temporary restraining order extended on March 22, 1982 and its preliminary injunction entered on November 16, 1982 to preserve the status quo;”
2. The court reiterates its intention expressed in its preliminary injunction to dissolve its temporary restraining order “as to JAMES A. CARROLL and RICHARD M. BRADLEY”;
3. Carroll Scientific, Inc. remains and is bound by the terms of this court’s order.
4. John R. Carroll and Carroll Scientific, Inc., as well as their employees, agents, representatives, and any and all persons acting in concert with them, shall place themselves immediately in full compliance with this Court’s orders;
5. The defendants John R. Carroll and Carroll Scientific, Inc. shall take no further actions except to “appeal from any order to alter the status quo under which this Court intended to preserve by its orders until a trial can be held on the merits of this case.”

Carroll Scientific then appealed this January 11 ruling and the pending appeals were consolidated.

The first issue on appeal is whether the trial court erred in entering a preliminary injunction against John Carroll. Although John Carroll claims that a noncompetition covenant contained in an employment agreement is per se unenforceable because it has no geographical limitation (see Parish v. Schwartz (1931), 344 Ill. 563, 176 N.E. 757), we believe that under current Illinois law the question of the geographical scope of a covenant not to compete is only one of the factors to be considered by a court in determining a covenant’s enforceability and not the final test. This factor may be relatively insignificant as in cases where there are special circumstances, such as customer lists, customer contacts, trade secrets or other confidential information to be protected (see In re Solar Textiles Co. v. Fortino (1964), 46 Ill. App. 2d 436, 196 N.E. 2d 719; Smithereen Co. v. Renfroe (1945), 325 Ill. App. 229, 59 N.E.2d 545) or the lack of geographical scope may be determinative as in situations where territorial restrictions as to salesmen or routemen are greater than the area that was served by these employees on behalf of the former employer. In this latter situation, the cases almost uniformly hold that excluding service occupations from an entire State by such a covenant is unreasonable. The rationale behind making geography determinative in this situation is that the employee should be excluded only from territory in which, as a result of his employment, he was able to establish a certain relationship with the employer’s customers. (Central Keystone Plating of Illinois, Inc. v. Hutchison (1965), 62 Ill. App. 2d 188, 210 N.E. 2d 239.) The rationale behind making geography a less significant factor in the case where special circumstances exist is that the restraints should be commensurate with the need to protect the employer. The employer is entitled to have his interest in his trade secrets protected, such as secret processes of manufacture which may be of vast value and that protection may be secured by restraining the employee from divulging these secrets or putting them to his own use. The employer is also entitled not to have his old customers, by solicitation or such other means, enticed away from him. Brunner & Lay, Inc. v. Chapin (1961), 29 Ill. App. 2d 161, 172 N.E.2d 652; Rhoades v. Clifton Gunderson & Co. (1980), 89 Ill. App. 3d 751, 411 N.E.2d 1380.

We believe that under the above analysis, geography is only one of the factors to be considered in the enforceability of an employment agreement whether a simple employment agreement is involved or an agreement ancillary to the sale of a business. Therefore it is the function of the court to put the appropriate emphasis on this factor and consider it along with other factors in its ultimate determination as to whether to enforce an employment agreement.

Under the instant facts, the plaintiff alleged and presented evidence to the trial court to prove special circumstances in the creation and prospective enforcement of this employment agreement. Lawter alleged that John Carroll had in his possession certain trade secrets and customer lists which were its proprietary business information and that John Carroll was about to use this information to compete with the plaintiff contrary to his employment agreement. On the basis of these facts, we do not believe that the trial court erred when it determined that this noncompetition clause without a geographical limitation was valid because the restraint was not greater than necessary to protect the employer. Rhoades v. Clifton Gunderson & Co. (1980), 89 Ill. App. 3d 751, 411 N.E.2d 1380.

John Carroll next argues that even if the noncompetition covenant is not unreasonable per se because it lacks geographical limitations, it cannot be enforced against him because he did not fully participate in negotiating the agreement, because the agreement did not survive the sale to Lawter, because the agreement did not survive his promotion to Lawter’s national sales manager, because it is unreasonable as to geography and time, because no trade secrets are involved, because customer information is not a protectable interest, and because the court did not enforce the noncompetition and trade secrets covenants as written but impermissibly modified them.

In addition to the above claims based on the defendant’s perceived nonenforceability of the employment agreement, John Carroll also makes claims that the evidence did not support the conclusion that Lawter would suffer irreparable injury, that the evidence did not support the conclusion that the court properly balanced the equities in this case and that the evidence did not support the court’s rejection of John Carroll’s unclean hands defense.

In order to respond to Carroll’s arguments, it is necessary to keep sight of the purpose of a preliminary injunction, the necessary showing to obtain a preliminary injunction and the function of the trial court in issuing a preliminary injunction.

The function of the trial court in considering a motion for a preliminary injunction is to grant the injunction if it finds (1) that there is a certain and clearly ascertainable right that needs protection, (2) that the movant will suffer irreparable injury if the injunction is not granted, (3) there is no adequate remedy at law, and (4) the movant has a likelihood of success on the merits. These factors must be established by a preponderance of the evidence. (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 422 N.E.2d 1166.) The trial court has a great deal of discretion in granting or denying an injunction. A reviewing court will only reverse the trial court if it finds that the granting or denial of the preliminary injunction was against the manifest weight of the evidence. Booth v. Greber (1977), 48 Ill. App. 3d 213, 363 N.E.2d 6.

To prevail in its action for a preliminary injunction, it was necessary for Lawter to demonstrate a likelihood of success on the merits. (Simpkins v. Maras (1958), 17 Ill. App. 2d 238, 149 N.E.2d 430.) Lawter was not required to make out a case which in all events would warrant relief at the final hearing; Lawter needed only to raise a fair question as to the existence of its right to its claim and lead the trial court to believe that it would probably be entitled to such relief if its proof should ultimately sustain its allegations. Wessel Co. v. Busa (1975), 28 Ill. App. 3d 686, 329 N.E.2d 414.

Based on the voluminous record in this case, we believe that Lawter was able to raise a fair question as to the validity of the employment agreement and its right to have the agreement enforced against John Carroll. More specifically, we believe the court could reasonably conclude, contrary to John Carroll’s contentions, that John Carroll had intended to sign a legally valid document whether or not he had fully participated in its negotiation, that John Carroll had intended to have the agreement survive the sale of Dyall to Lawter because he wrote a letter to Dyall on the date of the sale which apparently reaffirmed the existence of the employment agreement, and that the non-competition covenant in the agreement survived Carroll’s promotion to Lawter’s national sales manager because he continued to work for the same organization and thus this was not “a termination of his employment hereunder by the company” as Carroll claims.

We also believe that the trial court could reasonably conclude that the employment agreement should be enforced against John Carroll. The language of the agreement carves out Lawter’s “line of business” for protection as well as Lawter’s “business secrets.” We believe that the trial court was reasonably trying to protect these areas and did not engage in impermissible modification of these terms when it concluded that Lawter’s long term, near permanent customer lists warranted protection under this language as well as its other confidential business information. We find no merit in John Carroll’s argument that Lawter had no confidential business information to protect because it was not Lawter’s practice to mark its documents “confidential” or keep them under “lock and key.” The absence of such precautions did not give Carroll license to unilaterally remove such documents from the premises of his former employer.

Nor do we find John Carroll’s argument as to the unreasonableness of the geographic and time terms in the agreement convincing. As we understand it, Carroll’s argument here is that the time term is unreasonable because there was a five-year time limit to the agreement if he resigned the minute he signed the document and a more indefinite three years after termination of employment if he chose to stay with the company. John Carroll also states that his former employer, who also signed such an agreement at the sale of Dyall, had the advantage of the five-year term because he resigned immediately. Since John Carroll had control over this commitment and opted for the three-year term when he decided to stay with Lawter and also because the longer he stayed the greater his knowledge of Lawter’s intimate business information became, we do not believe that under the facts in this record John Carroll made a sufficient showing before the trial court that the time term should not be enforced against' him. As for the reasonableness of the geographic term, géography is relevant only to “line of business” and is appropriate under these facts.

We also disagree with John Carroll’s contention that the trial court erred when it concluded that the evidence showed irreparable injury to Lawter if a preliminary injunction were not issued. John Carroll claims that the trial court’s finding of irreparable injury is clearly erroneous because long-standing customer relationships are protected only if they are exclusive; because there was no evidence in the record that Lawter had near permanent, exclusive relationships with any of his customers; because the relative financial position of the parties made irreparable injury to Lawter most unlikely and because Lawter had already realized almost 2½ times its initial investment in Dyall.

We fail to see how these assertions on the part of John Carroll compel the conclusion that the trial court erred when it held that Lawter would suffer irreparable injury. In its original complaint, the plaintiff alleged that it would suffer irreparable injury unless the defendants were restrained from using Lawter’s confidential and proprietary business information, from establishing their planned rival business in competition with Lawter, from exploiting prior breaches of contract and of loyalty to Lawter with respect to customers and employees, from using Lawter’s confidential business information to injure Lawter in its business and property, from depriving Lawter of the good will which it had purchased with Dyall and from generally causing injury to Lawter for which there was no adequate remedy at law.

Under Illinois case law, an alleged injury is defined as irreparable in a variety of circumstances. The injury has been defined as irreparable when the injured party cannot be adequately compensated in damages; when the damages cannot be measured by any certain pecuniary standards; when the injury could possibly be compensated for in damages but the injury is of that species which ought not to be submitted to on one hand or inflicted on the other hand; or when the plaintiff will be subject to transgressions of a continuing nature, constant and frequent, such that no meaningful redress can be had at law. Cross Wood Products, Inc. v. Suter (1981), 97 Ill. App. 3d 282, 422 N.E.2d 953; Simpkins v. Maras (1958), 17 Ill. App. 2d 238, 149 N.E.2d 430; Bally Manufacturing Corp. v. JS&A Group, Inc. (1980), 88 Ill. App. 3d 87, 410 N.E.2d 321.

We believe that under the facts in this case, where the defendant was about to use the plaintiff’s own confidential information, customer lists, and formula to go into business and compete with the plaintiff, it was reasonable for the court to conclude that Lawter had made an adequate showing of irreparable injury under many of the above circumstances. More particularly, we believe that the factual situation present here gives rise to the conclusion that the plaintiff will be subject to transgressions of a continuing nature, constant and frequent, such that no meaningful redress can be had at law. Bally Manufacturing Corp. v. JS&A Group, Inc. (1980), 88 Ill. App. 3d 87, 410 N.E.2d 321.

Carroll’s two remaining arguments as to why the trial court erred in issuing a preliminary injunction against him involve his claim that the court failed to properly balance the equities in this case and his claim that the court’s conclusion that his unclean hands defense was at this point and time irrelevant. In regard to the balancing of equities claim, the court found that the doctrine of the balancing of equities was inapplicable here because “the existence of a private right and its violation is clear.” Since Carroll cites us to no authority to indicate why this conclusion is erroneous as a matter of law, we shall only address ourselves to John Carroll’s claim that it is erroneous as a matter of fact. According to John Carroll, far more damage will be done to him by depriving him of his means of a livelihood than will be done to Lawter if he is allowed to compete with Lawter until a trial on the merits in this case. We believe that it was reasonable for the trial court to conclude that in the light of the existence of a valid employment agreement and an adequate showing of irreparable injury, it was unnecessary to begin to balance the equities. In regard to John Carroll’s unclean hands defense, John Carroll bases this claim on the fact that the former owner of Dyall had allegedly signed a consulting agreement with Lawter and that Lawter at some point had told John Carroll that such an agreement had not been executed. The trial court held that this fact had no bearing on the issues in this particular case at this particular time. We also fail to see how this consulting agreement is relevant here.

Having decided that the trial court did not err in issuing preliminary injunctive relief against John Carroll, we shall now consider the second broad issue raised by the parties in this appeal. The issue involves Lawter’s contention on its cross-appeal that the trial court erred in failing to extend preliminary injunctive relief to include James Carroll and Richard Bradley. In its brief, Lawter summarizes its argument on this point by stating that it should have been clear to the trial court that all of the defendants have played key roles in a conspiracy to assist John Carroll to breach his employment agreement and use Lawter’s confidential formulae, manufacturing processes, costs, prices, marketing and customer requirements data to compete against Lawter, all in violation of their fiduciary responsibilities to Lawter. Therefore in dissolving the temporary restraining order as to James Carroll and Richard Bradley and then failing to include them in his preliminary injunction order against John Carroll, the trial court left them free to continue the conspiracy to aid and abet John Carroll to breach his contractual obligations and to misuse Lawter/Dyall confidential proprietary business information. Furthermore, according to Lawter, John Carroll was then afforded the ability to accomplish through his fellow conspirators what the trial court had enjoined him from doing directly.

In regard to James Carroll and Richard Bradley, the trial court found that the evidence did not support the conclusion that they had conspired with John Carroll to breach his employment agreement; that they had breached their independent fiduciary obligations to the plaintiff; or that they had misappropriated documents containing the plaintiffs confidential business information. The court also concluded that judicial protection should not be extended to Lawter on their behalf for a period beyond the time required for reverse engineering which had already passed.

All of the issues raised by Lawter in this cross-appeal are questions of fact concerning the activities of Bradley and James Carroll. We have already stated that a reviewing court will only reverse the trial court on factual matters if it finds that the granting of the preliminary injunction was against the manifest weight of the evidence. (La Salle National Bank v. Triumvera Homeowners Association (1982), 109 Ill. App. 3d 654, 440 N.E.2d 1073.) Furthermore there is a strong presumption in favor of the findings of the trial court which has heard the testimony of witnesses, observed their demeanor, considered the documentary evidence and the pleadings, and has heard the oral arguments of counsel. Marth v. Illinois Weather-Seal, Inc. (1977), 50 Ill. App. 3d 577, 365 N.E.2d 588.

In reviewing the record, we do not believe that evidence before the court supports the conclusion that Lawter had made an adequate showing of likelihood of success on the merits in its claims that the activities of James Carroll and Bradley rise to the level of a conspiracy to breach John Carroll’s employment agreement, of a breach of their own independent fiduciary obligations to the plaintiff or of a misappropriation of documents which, after the passage of time and the return of the documents, still warranted legal redress. With regard to Bradley, the evidence established that he did not participate in misappropriating any confidential documents of the plaintiff and that he did not perform any activity on behalf of Carroll Scientific prior to his resignation from Lawter. With regard to James Carroll, the evidence supported the conclusion that he had not induced Bradley to leave Lawter and that the culpability accruing to his participation with John Carroll in misappropriating certain documents had been cured by return of the documents and by the passage of time necessary for reverse engineering. Other activities on the part of James Carroll such as obtaining financing for Carroll Scientific, designing a production plant, purchasing equipment and supplies are more reasonably classified as preliminary competitive activities rather than activities in breach of a fiduciary duty to his employer. It is recognized that an employee, absent a restrictive contractual provision, has a right to enter into competition with the former employer upon leaving such employ. (Cross Woods Products v. Suter (1981), 97 Ill. App. 3d 282, 422 N.E.2d 953.) Indeed, an employee may legitimately go so far as to form a rival corporation and outfit it for business while still employed by the prospective competitor. (See James C. Wilborn & Sons Inc. v. Heniff (1968), 95 Ill. App. 2d 155, 237 N.E.2d 781.) An employee is held accountable for breaching his fiduciary duty to his employer only when he goes beyond such preliminary competitive activities and commences business as a rival concern while still employed. (Cross Woods Products v. Suter (1981), 97 Ill. App. 3d 282, 422 N.E.2d 953.) Since all the parties are in agreement that Carroll Scientific did not commence operation as a business entity with the purpose of soliciting and selling competing products to Dyall customers until after the preliminary injunction against John Carroll was in place, almost nine months after James Carroll and Bradley had resigned from Lawter, we believe that the trial court could correctly characterize these activities as preliminary competitive activities.

The final issue on appeal involves injunctive relief against Carroll Scientific. Lawter contends that the temporary restraining order entered on March 2, 1982, against Carroll Scientific survived the November 16, 1982, preliminary injunction even though Carroll Scientific was not preliminarily enjoined in the order. Alternatively, Lawter argues that the court erred in not preliminarily enjoining Carroll Scientific in the November 16 order and further that the preliminary injunction entered on January 11, 1983, against Carroll Scientific was appropriate.

Carroll Scientific responds that the temporary restraining order had expired on November 16 and that there was insufficient evidence to enter a preliminary injunction against Carroll Scientific on that date. Carroll Scientific further claims that the court had no jurisdiction to enter the January 11 order because Lawter had filed a notice of cross-appeal against Carroll Scientific because it had not been preliminarily enjoined on November 16. Additionally, Carroll Scientific contends that if the court did in fact have jurisdiction subsequent to November 16, there was insufficient evidence before the court upon which to base injunctive relief.

As to the temporary restraining order, it is the law of this case that the temporary restraining order entered on March 4, 1982, and extended on March 22, 1982, expired on November 16, 1982, with the issuance of the preliminary injunction. This court’s prior ruling in Lawter International, Inc. v. Carroll (1982), 107 Ill. App. 3d 938, 942, 438 N.E.2d 590, 592, explains that “[T]he purpose of a restraining order is to maintain the status quo until both parties can appear before the court and present evidence on the preliminary injunction.” (Emphasis added.) Various authorities have considered the question of when a temporary restraining order terminates. 42 Am. Jur. 2d Injunctions sec. 317 (1969) provides: “When a determination of the propriety of granting the preliminary injunction has been made, the whole force of the restraining order ceases by its own limitations.” 43 C.J.S. Injunctions sec. 10 (1978) states: “The force of the restraining order ceases on hearing of the application for a temporary injunction, or on the granting or refusal of the injunction without any express order to that effect. Where a restraining order has terminated as a matter of law, the belief of the parties and the judge to the contrary will not change it.” Based upon these authorities, we conclude that the trial court was in error when it declared that “Carroll Scientific, Inc. remains and is bound” by the temporary restraining order. As a matter of law, a temporary restraining order does not survive the issuance of a preliminary injunction. Thus the temporary restraining order against Carroll Scientific ceased at the point in time that the order on the preliminary injunction was issued against John Carroll and Carroll Scientific was not enjoined.

Regardless of whether the trial court retained jurisdiction to enter a subsequent preliminary injunction against Carroll Scientific, we believe that there was insufficient evidence to enjoin Carroll Scientific in the November 16 order and that there was insufficient evidence upon which to grant preliminary injunctive relief against Carroll Scientific on January 11.

Lawter alleged that Carroll Scientific, along with James Carroll and Richard Bradley, was part of a conspiracy to violate the covenants of John Carroll’s employment agreement with Lawter. As of November 16, the trial court found insufficient evidence of such a conspiracy. The court specifically found that neither James Carroll nor Bradley had breached their independent fiduciary obligations to Lawter; that Bradley, James Carroll and Carroll Scientific had no independent responsibilities to Lawter under John Carroll’s employment agreement; that James Carroll and Bradley had not misappropriated documents containing Lawter’s confidential business information; and that judicial protection should not be extended to Lawter for a period beyond the time required for reverse engineering which had already passed. Thus under the November order, James Carroll and Carroll Scientific were free to go into business against Lawter.

The only new evidence before the court subsequent to the November 16 order was that John Carroll had sold his interest in Carroll Scientific to his brother James Carroll. John Carroll divested himself of all ownership of Carroll Scientific’s stock and ceased participating in its activities. By such actions, Carroll Scientific claims that John Carroll was merely trying to comply with the terms of the November 16 order. Since Lawter was unable to present any new evidence concerning a conspiracy other than depositions which only testified to the completion of the sale, we believe that there was insufficient evidence to support the court’s conclusion that Carroll Scientific should be enjoined on January 11.

For the above reasons we affirm the order of November 16 and reverse the order of January 11.

ROMITI, P.J., and JOHNSON, J., concur.


author: PRESIDING JUSTICE WEBBER JUSTICE MILLS,

text:
    SECRETARY OF STATE, STATE OF ILLINOIS, Plaintiff-Appellant, v. JACOB M. KUNZ, Defendant-Appellee—(The Merit Commission, State of Illinois, Defendant).
    Fourth District
    No. 4—83—0010
    Opinion filed August 2, 1983.

      MILLS, J., dissenting.
    Neil F. Hartigan, Attorney General, of Springfield (William S. Hanley and Jane Lynk, Special Assistant Attorneys General, of counsel), for appellant.
    Stewart R. Winstein, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

The Secretary of the State of Illinois (Secretary) appeals from an order of the circuit court of Sangamon County, sitting in administrative review (Ill. Rev. Stat. 1981, ch. 110, par. 3—101 et seq.), which affirmed an order of the Merit Commission for the Office of the Secretary of State (Commission) (Ill. Rev. Stat. 1981, ch. 124, par. 109). The Secretary sought discharge of the defendant Kunz, but the Commission, as affirmed by the circuit court, imposed a penalty of 75 days’ suspension.

The case has had an anfractuous procedural history, some of which must be recited here in order better to understand the issues. Kunz was the facility supervisor for the office of the Secretary in Aledo, Illinois. The Secretary discharged him on February 22, 1979, on charges: (1) sleeping on the job; (2) allowing a driver’s license applicant to take a practice written test; and (3) taking personal time off during working hours to get a haircut. Kunz sought and received a hearing before the Commission.

The evidence was not extensive. A clerk in the Aledo facility testified that Kunz took naps at work sometimes as frequently as twice a day for periods from 30 minutes to an hour; according to her testimony, Kunz placed three chairs together as a sort of bed. She also testified that during the fall of 1978 Kunz permitted a friend to review the written driver’s examination as a practice test and that Kunz left the facility to get a haircut during working hours. Two officials from the Secretary’s office testified that when confronted with the charges, Kunz admitted to them that he had done the things.

Kunz himself testified that he took naps only during coffee breaks; that he got the haircut during inclement weather when he could not administer road tests to applicants; and that he did not give his friend a practice test, he only showed him the format of the new test.

The hearing officer concluded that the charges had been proved and recommended discharge. The Commission agreed that the charges had been proved, but determined that the punishment should be only a 75-day suspension because of the Secretary’s failure to apply a certain personnel rule, designated Rule 2 — 690, of his office which provided for corrective discipline (counselings, warnings, suspensions, or a combination of the three) prior to discharge.

The Secretary then appealed the Commission’s order to the circuit court which remanded the case to the Commission holding that the Commission “was without authority to enter a finding that Personnel Rule 2 — 690 was being ignored or not followed by the Secretary of State, absent any evidence in the record supporting such conclusion.”

A second hearing was then held. Almost all the evidence concerned the showing of the driver’s test. Kunz again testified that he showed only a format of the new test and that before this proceeding he had received no reprimands from anyone in a supervisory capacity in the Secretary’s office. A division administrator in drivers’ services testified that the tests are not for the public’s use and are kept in a safe. He testified, as at the first hearing, that Kunz admitted to him that he allowed a friend to take a practice test and that showing a test to an applicant was grounds for immediate discharge. A deputy director of the department of personnel of the secretary’s office also testified that such a showing of a test was grounds for immediate discharge.

The hearing officer recommended a 75-day suspension, stating that the test disclosure did not warrant discharge. No reference in this second report was made to the other charges. The Commission concurred. The Secretary then appealed to the circuit court which reversed, holding that the test disclosure warranted discharge and that progressive or remedial discipline was unwarranted.

Kunz then appealed the circuit court’s order to this court. However, the record was incomplete, and we remanded to the circuit court with directions to consolidate the records of the two hearings and to proceed with a hearing upon the consolidated record. The circuit court then affirmed the findings of the Commission and the 75-day suspension. It is this order which is the subject of the instant appeal by the Secretary.

The positions of the parties are clearly drawn. The Secretary asks us to reverse the Commission’s order of suspension and remand with direction to enter an order of discharge. Kunz asks us simply to affirm, asserting that this court lacks the power to instruct the Commission to follow the Secretary’s decision to discharge him.

The guidelines have been stated by the supreme court in Department of Mental Health & Developmental Disabilities v. Civil Service Com. (DuFrenne, appellant) (1981), 85 Ill. 2d 547, 426 N.E.2d 885. The court described a two-step process for a reviewing court in dealing with an administrative agency’s decision whether or not to discharge an employee: (1) to determine whether the agency’s findings of fact are contrary to the manifest weight of the evidence, and next (2) to determine whether the findings of fact provide a sufficient basis for the conclusion that cause for discharge does or does not exist. The latter is not tested by the manifest weight of the evidence, but whether the decision is arbitrary, unreasonable or unrelated to the requirements of the service. Department of Mental Health & Developmental Disabilities v. Civil Service Com. (Mars, appellant) (1982), 103 Ill. App. 3d 954, 431 N.E.2d 1330.

In the case at bar the first step is not really controverted. Kunz, although arguing that his conduct did not merit discharge, does not contest the findings of fact nor that the charges against him were proved. The second step is the pivotal issue in this case.

The attempts on the part of courts to tinker with punishments meted out by administrative agencies has met with very little success. DuFrenne is a premier example. Others are collected in Mars. (103 Ill. App. 3d 954, 431 N.E.2d 1330.) Obviously this stems from the deference which courts are required to pay to the findings and the actions of the agencies. In a broad sense, it is the civil counterpart of the deference which a reviewing court must pay to a trial court’s criminal sentence. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

However, the lack of success does not per se indicate that the power to do so is lacking. The supreme court in DuFrenne commented without criticism on the fact that several appellate courts had reduced administrative penalties. (85 Ill. 2d 547, 426 N.E.2d 885.) The court then went on to say, “We therefore hold that the agency’s decision as to cause [for discharge] will not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of the service. [Citation.]” (85 Ill. 2d 547, 552, 426 N.E.2d 885, 887.) The corollary to this proposition must then be true: that if the agency’s decision is arbitrary, unreasonable and unrelated to the requirements of the service, it may be reversed. It would then follow that the original action of the agency head, in this case the Secretary, would be reinstated. Otherwise, the case would become a ping-pong match between a commission and a court. Kunz’ argument that a court is without power to order a discharge is nonmeritorious. The fact that it must be exercised sparingly and with great caution does not mean that it does not exist.

The Secretary has presented a variety of arguments as to why discharge is the proper penalty and that the decision of the Commission is arbitrary, unreasonable, and unrelated to the requirements of his service. He points to prior authorities holding that sleeping on the job is a ground for discharge. (Petraitis v. Board of Fire & Police Commissioners (1975), 31 Ill. App. 3d 864, 335 N.E.2d 126; Blankenship v. Civil Service Com. (1977), 52 Ill. App. 3d 173, 367 N.E.2d 178.) He also argues that the Commission’s treatment of this charge was anomalous. At the first hearing the hearing officer recommended discharge based on all three charges, but the Commission reduced it to suspension. At the second hearing the hearing officer apparently based his recommendation on only one of the charges, viz., disclosure of the test, and then recommended suspension. The Secretary maintains that it is manifestly arbitrary and unreasonable for the Commission to order suspension for disclosure without considering the other charges.

As to this disclosure charge, the Secretary also points to prior authority (Odell v. Village of Hoffman Estates (1982), 110 Ill. App. 3d 974, 443 N.E.2d 247) holding that disclosure of confidential information is a ground for discharge.

Next, the Secretary argues that the charges in the aggregate merit discharge^ He again points out that apparently only the disclosure matter was considered at the second hearing and therefore the other two, sleeping on the job and taking unauthorized time off, remain standing as proved.

We agree that sleeping on the job and disclosure of confidential information are serious charges and would merit discharge in the first instance. That is exactly what happened in Petraitis, Blankenship, and Odell — the administrative agency ordered discharge and this was ultimately affirmed on review. We face an entirely opposite situation — the agency has rejected discharge and ordered suspension. Under DuFrenne we cannot review the matter de novo and substitute our own judgment. Our duty is to weigh the Commission’s decision and to determine whether it is arbitrary, unreasonable, and unrelated to the requirements of the service. We cannot say that it is such.

For all of the marching and countermarching on the subject of disclosure of the test, the fact remains that the hearing officer, as affirmed by the Commission, found it to be negligent rather than dishonest. Sleeping on the job is a serious offense, but circumstances are significant. Petraitis involved a police officer sleeping in his squad car while on duty; Blankenship involved youth supervisors in the Department of Corrections; such situations are obviously much more fraught with danger than sleeping in a drivers’ facility in Aledo, which does not appear in the record to be a beehive of activity.

As to the aggregation of charges, the Commission expressly stated, “[T]he charges proved warrant only a 75-day suspension of the respondent, Jacob M. Kunz, from his position with'the Secretary of State, State of Illinois.” (Emphasis added.) By its use of the plural we conclude that the Commission did consider all three of the charges.

Our review of the record has persuaded us that the Commission’s order is not arbitrary, unreasonable, and unrelated to the requirements of the service, and it is accordingly affirmed.

Affirmed.

TRAPP, J., concurs.

JUSTICE MILLS,

dissenting:

As the majority clearly points out, Kunz “does not contest the findings of fact nor that the charges against him were proved.”

Not only did he sack out on the job and use work time for personal business, but he disclosed a confidential test to someone who was to later take it! Surely, such breach of conduct by one in a supervisory capacity is indisputable cause for discharge. In fact, palpable grounds — in aces, spades, and trumps.

The Secretary of State, or any other State agency charged with statutory duties and service to the taxpayers, should be able to rid the public trough of freeloaders who demonstrate such patently unacceptable calibre.

I do not read DuFrenne as narrowly as do my brothers. Their interpretation of the supreme court’s standard in that case equates it to a straitjacket. Their reading is so restrictive that under virtually no circumstance could a reviewing court overturn a commission’s decision. That cannot be.

To my view, the 75-day suspension as a punishment in this case is both a farce and ludicrous. Such action is indeed “arbitrary, unreasonable, and unrelated to the requirements of the service” and should be reversed.

I dissent.


author: JUSTICE REINHARD

text:
    JEAN C. PROCTOR et al., Plaintiffs-Appellants, v. MIRIAM HANDKE, Defendant-Appellee.
    Second District
    No. 82—791
    Opinion filed August 2, 1983.

      Roy I. Peregrine and Dale W. Bruckner, both of Peregrine, Stime, Newman & Ritzman, of Wheaton, for appellants.
    John C. Ambrose, of Ambrose & Cushing, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiffs, Jean C. Proctor and Robert O. Handke, appeal from a finding for defendant, Miriam Handke, at the close of plaintiffs’ evidence in a bench trial, and a prior order requiring them to pay-defendant $450 in costs for requesting and obtaining a continuance on the scheduled day of trial.

The issues presented for review are: (1) whether mutual wills executed on March 26, 1972, by defendant and her deceased husband, Otto Handke, father of the plaintiffs, constituted a binding contract between the testators to dispose of the survivor’s property which could not be revoked after the death of Otto Handke; and (2) whether the trial court properly awarded defendant $450 in costs for granting a continuance requested by plaintiffs when plaintiffs were later willing to have judgment rendered against them based upon the proofs previously submittéd on their motion for summary judgment which had been denied.

In their second amended complaint plaintiffs alleged, inter alia, that they were children of Otto Handke and Catherine Handke; that after Catherine Handke’s death, Otto Handke married defendant on October 24, 1959; that on March 26, 1972, Otto Handke prepared mutual and reciprocal wills for himself and defendant which were typed by defendant and executed by them on that date in front of each other and before the same witnesses; that each had full knowledge of both wills; that defendant had one child by a previous marriage and one child which was born during the marriage of Otto Handke and defendant; that the mutual and reciprocal wills provided for a common pooling of their assets and provided for equal treatment of the plaintiffs, the child born to defendant during her prior marriage, and the child born to Otto Handke and defendant; that Otto Handke died on December 10, 1977, without revoking his March 26, 1972, will; that upon Otto Handke’s death the will which defendant had also executed on March 26, 1972, became irrevocable; and that subsequent to Otto Handke’s death defendant executed codicils, wills, or other testamentary documents which had the effect of revoking or modifying the terms of defendant’s will of March 26, 1972. The complaint sought to have any codicil, will, or other testamentary instrument of defendant executed after Otto Handke’s death declared null and void; to have defendant enjoined from revoking or modifying her will dated March 26, 1972; and other relief.

The wills of Otto Handke and defendant are substantially identical in terms. Each leaves all the testator’s property to the survivor, and in the event the testator is the survivor, in equal shares to the four children/stepchildren, by name, who may have survived the first of the testators to die, without reference to whether they survive the survivor of the testators. Should one of the children/stepchildren have failed to survive the first of the testators to die, his or her share was given to his or her spouse, by name, except in the case of Janet (a 10-year-old in 1972 and the child of Otto Handke and defendant) whose share was in that event directed to go to the other three. As to the plaintiffs herein, if one of them and his or her spouse should both predecease the first of the testators to die, his or her share would be given to his or her children. The wills do not explicitly provide for the disposition of the share of Miriam’s son Gary Brown in the event both he and his wife should predecease the first of the testators to die. Both wills appointed the other testator to be executor and, if the other failed to survive, appointed Edward O. Proctor, Jr., husband of Otto’s daughter, Jean, as successor executor.

Plaintiffs moved for summary judgment and filed subsequently the affidavit of Robert O. Handke which stated, inter alia, that throughout Otto Handke’s life he and his children, plaintiffs, were on the best of terms having a close relationship of love and respect; that the reciprocal wills were executed on March 26, 1972; and that during their married life Otto Handke and defendant had pooled their assets and held them jointly and that Otto’s principal asset, a business block on Lake Street in River Forest, Illinois, was held in trust which was amended on March 20, 1972, to substantially conform, as far as its testamentary provisions are concerned, with the wills executed on March 26, 1972. Summary judgment was denied and the matter set for trial on October 29, 1981.

On October 29, 1981, plaintiffs filed a motion pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308) for interlocutory appeal by permission from the denial of their motion for summary judgment. The motion was denied, but plaintiffs were not prepared to proceed to trial and requested a continuance. The trial court granted the continuance contingent upon payment of $450 by plaintiffs as attorney fees for defendant’s counsel’s preparation for trial. Thereafter, on November 20, 1981, plaintiffs filed a motion for entry of judgment requesting that the trial court enter judgment for defendant on the basis of the affidavit of Robert O. Handke filed in support of plaintiffs’ motion for summary judgment. On that same day, the court entered judgment for defendant on the motion of plaintiffs. However, defendant who was not present although given notice of the motion, later filed a motion to vacate the judgment, which was granted on May 10, 1982.

A bench trial was held on August 25, 1982, in which plaintiff Robert O. Handke, and defendant, called under section 2—1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—1102), formerly section 60 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 60), testified during the plaintiffs’ case. In addition to the facts alleged in the amended complaint and the statements in Robert O. Handke’s affidavit, which were testified to in more detail by Handke, no additional testimony by him need be detailed herein for purposes of the issues raised on appeal. Defendant, under section 2— 1102 testimony, stated she had no discussion with Otto Handke about not being able to cancel or revoke her will or his will of March 26, 1972. She also denied ever discussing the significance of the March 20, 1972, amendment to the trust agreement in relationship to the wills. She confirmed that she had full knowledge of the content of both wills prior to their execution.

At the conclusion of the plaintiffs’ case, the trial court granted defendant’s motion for a finding in defendant’s favor.

Plaintiffs contend that the wills of March 26, 1972, drafted by Otto, typed by Miriam, and reciprocal in their terms as between them and their respective families, constituted a binding contract between the testators to dispose of the survivor’s property in accordance with the terms of the wills and under this contract Miriam could not revoke her will after Otto’s death. Plaintiffs advance two arguments to support their position, namely that: (1) the presumption that joint and mutual wills constitute a contract applies with equal force to the separate and mutual wills here, and (2) the provisions of the wills and circumstances of the testators and their families confirm the presumption that they established a contract binding the survivor by (a) the express language of the wills, (b) the testators’ family situation, and (c) other circumstances of the testators at the time of the execution of the wills.

The terms “joint wills” and “mutual wills” are defined in Curry v. Cotton (1934), 356 Ill. 538, 543, 191 N.E. 307, as follows:

“A joint will is a written instrument executed and published by two or more persons disposing of the property, or some part of the property, owned jointly or in common by them or in severalty by them. On the death of the testator first dying it is subject to record and probate as his will, and on the death of the surviving testator it is subject to probate as his will. A joint will may or may not be mutual or reciprocal. Mutual or reciprocal wills are the separate instruments of two or more persons, the terms of such wills being reciprocal and by which each testator makes testamentary disposition in favor of the other. (30 Am. & Eng. Ency. of Law, 556.) A will that is both joint and reciprocal is an instrument executed jointly by two or more persons with reciprocal provisions and shows on its face that the bequests are made one in consideration of the other. (Frazier v. Patterson, 243 Ill. 80, 28 R.C.L. 167.)”

A joint will of a husband and wife with reciprocal provisions is presumed to be executed pursuant to a contract and therefore irrevocable upon the death of one of the testators. (In re Estate of Edwards (1954), 3 Ill. 2d 116, 120, 120 N.E.2d 10; Frazier v. Patterson (1909), 243 Ill. 80, 86, 90 N.E. 216.) “Due to the relationship of mutual trust and confidence imposed by such status [husband and wife], it may be presumed that the provisions are induced by the mutual love, respect for, and faith which, the parties have in each other. The consideration thus arising from the relationship, and the fact of the joint execution of the instrument, gives rise to the presumption of a contract or agreement between the parties, husband and wife.” (Peck v. Drennan (1951), 411 Ill. 31, 37, 103 N.E.2d 63; see also Helms v. Darmstatter (1966), 34 Ill. 2d 295, 300-01, 215 N.E.2d 245; Jusko v. Grigas (1962), 26 Ill. 2d 92, 97, 186 N.E.2d 34.) There is authority, however, which appears even reluctant to permit the presumption to be sufficient in itself but requires a search of the terminology of the will for an expression of intention on the part of the testators to stand in the stead of supporting external proof. See In re Estate of Edwards (1954), 3 Ill. 2d 116, 121, 120 N.E.2d 10.

Mutual wills, however, are not, generally, of themselves sufficient evidence of a contract, and the consideration to support it must be aliunde the wills. (Monninger v. Koob (1950), 405 Ill. 417, 422, 91 N.E.2d 411; Frese v. Meyer (1945), 392 Ill. 59, 64, 63 N.E.2d 768.) The mere existence of mutual wills does not lead to a presumption of contract nor is it evidence that such a contract does, in fact, exist. (Campbell v. Cowden (1974), 18 Ill. App. 3d 500, 503, 309 N.E.2d 601.) The cases involving wills which are merely mutual or reciprocal in their provisions, but are not joint, generally require clear and convincing evidence that they were executed as the result of a binding contract to be irrevocable. (In re Estate of Edwards (1954), 3 Ill. 2d 116, 122, 120 N.E.2d 10.) These rules are applicable even where the separate, reciprocal wills are executed on the same day. (See, e.g., Jordan v. McGrew (1948), 400 Ill. 275, 79 N.E.2d 622; Campbell v. Cowden (1974), 18 Ill. App. 3d 500, 309 N.E.2d 601.) Thus, the cases clearly reject application of the presumption of irrevocability accorded a joint and reciprocal will to separate mutual wills. In view of this well-established authority, we find no merit to plaintiffs’ contention that such a presumption should apply equally to the separate and mutual wills under the circumstances presented here where testators were husband and wife and they knew the contents of each other’s will.

Nor do we conclude that the provisions of the wills or the circumstances of the testators and their respective families establish a binding contract. The existence of a binding contract between the testators here is not specifically expressed in the wills as it was in other cases in which mutual, but not joint, wills have been construed as an irrevocable contract. (See, e.g., In re Estate of Kritsch (1978), 65 Ill. App. 3d 404, 382 N.E.2d 50; Freese v. Freese (1977), 49 Ill. App. 3d 1041, 364 N.E.2d 983.) The wills contain no reference to each other, nor do they contain any language from which a contract may be inferred. (See Monninger v. Koob (1950), 405 Ill. 417, 424, 91 N.E.2d 411.) While the mutual wills here both provide that all children of both families would benefit equally from the property of the testators upon both their deaths and contain a provision that made each child’s share contingent only on surviving the testator’s predeceased spouse, these facts are insufficient to provide clear and convincing evidence of an agreement between Miriam and Otto to make an irrevocable contract.

No other evidence was adduced at the hearing below which would support an intention by the testators to make the wills irrevocable. In fact, defendant testified there were no discussions between Otto Handke and her about not being able to cancel or revoke the wills. The mere existence of children from prior marriages of Miriam and Otto along with the existence of mutual wills executed on the same day by the testators is insufficient under the evidence to prove an agreement that the wills were irrevocable. In sum, there is absolutely nothing under all the evidence to indicate there was an agreement that either of the parties would not at any time have the right of revocation. See Frese v. Meyer (1945), 392 Ill. 59, 65, 63 N.E.2d 768.

The court below found for defendant at the close of the plaintiffs’ case. The standard for the trial court in ruling on the motion for a finding at the close of plaintiffs’ case in a nonjury case is set forth in section 2—1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—1110), formerly section 64(3) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 64(3)), and the decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154, 407 N.E.2d 43.) The trial court was correct in finding for defendant for the reasons stated above. See Campbell v. Cowden (1974), 18 Ill. App. 3d 500, 309 N.E.2d 601.

Plaintiffs also make the novel contention on appeal that the trial court “improperly forced plaintiffs to incur expenses of trial after plaintiffs stipulated that their evidence at trial would not go beyond that already presented in support of an unsuccessful motion for summary judgment.” They contend that a sanction of $450 against them for failing to be ready for an October 10, 1981, trial, and requiring a continuance if they wanted a trial, was improper since they subsequently were willing to have judgment rendered against them based upon the facts previously submitted on their motion for summary judgment which had been denied. On appeal plaintiffs do not contest the propriety of the initial denial of their motion for continuance or the reasonableness of the amount of $450 as a sanction.

It suffices to hold only that plaintiffs’ later willingness, without defendant’s consent, to have judgment entered against them without trial on the basis of the pleadings and affidavit submitted on their motion for summary judgment is not a procedure provided for in the Code of Civil Procedure. The effect of such a procedure would be for a party to obtain summary judgment in favor of an opponent, over objection, without a trial on the merits. Section 2—1005(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—1005(c)), formerly section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 57(3)), provides that a judgment may be rendered “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Emphasis added.) Defendant was entitled to a trial on the merits, and plaintiffs’ attempted “short cut” of the trial procedures provided for in the Code of Civil Procedure was properly rejected, ultimately, by the trial court.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT and LINDBERG, JJ., concur.