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SECOND DIVISION
Date Filed: June 30, 2005

JUSTICE HALL delivered the opinion of the court:

The plaintiffs and counterdefendants, Jyoti Mohanty, M.D.,and Raghu Ramadurai, M.D., filed separate actions for declaratoryjudgment against their employer, the defendants andcounterplaintiffs, St. John Heart Clinic, S.C., and JohnMonteverde, M.D., alleging that the defendants breached theiremployment contracts with the plaintiffs. The defendants filedcountercomplaints alleging that the plaintiffs had violated theterms of the restrictive covenants in their employment contractswith the defendants and seeking, inter alia, injunctive relief. After the suits were consolidated, the circuit court enteredtemporary restraining orders against the plaintiffs. Following ahearing, the circuit court denied the defendants' motion for apreliminary injunction. The defendants bring this interlocutoryappeal pursuant to Supreme Court Rule 307(a)(1) (188 Ill. 2d R.307(a)(1)).

On appeal, the defendants raise the following issues:whether the restrictive covenants were overly broad andunreasonable; whether the circuit court abused its discretionwhen it refused to modify the restrictive covenants; and whetherthe circuit court abused its discretion when it denied thedefendants' motion for a preliminary injunction.

Dr. Mohanty's employment contract with the defendantsprovided in pertinent part as follows:

"For a period of 5 years after the termination of thisAgreement, the Employee shall not (within a radius of 5miles from any of Corporation's offices in Illinois)directly or indirectly own, manage, operate, control, beemployed by participating in or be connected in any mannerwith any office established for the practice of medicine. In addition, the Employee shall not for a period of 5 yearsafter termination of this Agreement practice at St. Mary ofNazareth Hospital, Norwegian American Hospital, Sacred HeartHospital, St. Elizabeth Hospital or other hospitals anymember of the Corporation is affiliated with."

Dr. Ramadurai's employment agreement with the defendants wasidentical to that of Dr. Mohanty, except that the duration of therestrictions was three years and within two miles of thecorporation's offices.

The decision to grant or deny a preliminary injunction restswithin the sound discretion of the trial court, and a reviewingcourt will not disturb the decision absent a clear abuse ofdiscretion. Keefe-Shea Joint Venture v. City of Evanston, 332Ill. App. 3d 163, 167, 773 N.E.2d 1155 (2002).

In an interlocutory appeal pursuant to Rule 307(a)(1), theonly question before the reviewing court is whether there was asufficient showing made to the trial court to sustain its ordergranting or denying the interlocutory relief sought. Keefe-SheaJoint Venture, 332 Ill. App. 3d at 168. The rule may not be usedto determine the merits of the case. Keefe-Shea Joint Venture,332 Ill. App. 3d at 168.

A preliminary injunction is a provisional remedy granted topreserve the status quo, i.e., the last, peaceable uncontestedstatus which preceded the litigation, pending a hearing of thecase on the merits. Lee/O'Keefe Insurance Agency, Inc. v.Ferega, 163 Ill. App. 3d 997, 1002, 516 N.E.2d 1313 (1987). As ageneral rule, a preliminary injunction will only be granted wherethe party shows it (1) has a clearly ascertainable right thatneeds protection, (2) will suffer irreparable harm without theprotection, (3) has no adequate remedy at law, and (4) is likelyto succeed on the merits. Prairie Eye Center, Ltd. v. Butler,305 Ill. App. 3d 442, 445, 713 N.E.2d 610 (1999). The partyseeking the injunction need only make a prima facie showing ofevidence on the requisite elements to obtain injunctive relief. Prairie Eye Center, Ltd., 305 Ill. App. 3d at 445.

Medical practices have a protectible interest in thepatients of their physicians, and this interest is inferred fromthe nature of the profession. Prairie Eye Center, Ltd., 305 Ill.App. 3d at 447. The threat of irreparable injury is related toproof of a protectable interest, and once such an interest isestablished, there is a presumption that injury to the partyseeking the injunction will follow if the interest is notprotected. Morrison Metalweld Process Corp. v. Valent, 97 Ill.App. 3d 373, 380, 422 N.E.2d 1034 (1981). The likelihood thatthe party seeking the injunction will prevail on the merits isrelated to the reasonableness of the restrictive covenant. Valent, 97 Ill. App. 3d at 380. Where the limitation as to timeand territory is not unreasonable, a restrictive covenant isvalid and enforceable, and relief by injunction is reasonable andproper. Prairie Eye Center, Ltd., 305 Ill. App. 3d at 445.

Initially, the parties disagree on the basis for thecircuit court's finding that the covenant was overly broad andunreasonable. After determining that the geographicallimitations of the covenants were "well within the ranges ofproof by reported case law," the court stated as follows:

"The temporal restrictions are somewhat problematic. At the hearing, Dr. Monteverde testified that it takes aminimum of three to five years to develop a referral baseand that it took some ten years prior to the arrival of Dr.Ramadurai for St. John to establish its reputation andpractice.

It is significant, however, that Dr. Ramadurai [sic]⁽¹⁾also testified that he imposed a three-year restriction onDr. Ramadurai because it just came into his mind, and heimposed a five-year restriction on Dr. Mohanty because hedid not trust him.

The activity restrictions clearly are greater thannecessary to protect the interest of St. John. Dr.Monteverde and St. John, through Dr. Monteverde, are engagedin the practice of the medical specialty of cardiology. Dr.Monteverde testified that, also, on occasion, he engages inthe practice of internal medicine.

The only protectable interests, therefore, relate tothe practice of cardiology and possibly internal medicine. The covenants restrict the practice of medicine in all itsvarious fields and specialties. Clearly, the activityrestriction is overly broad and unreasonable."

Contrary to the plaintiffs' argument, the circuit court didnot find the temporal restrictions of the covenant to be overlybroad and unreasonable, but merely "problematic." Nonetheless,the plaintiffs urge this court to exercise our right as areviewing court to sustain the decision of the circuit court onany grounds that are called for by the record regardless ofwhether the circuit court relied on the grounds and regardless ofwhether the circuit court's reasoning was sound. City of Chicagov. Holland, 206 Ill. 2d 480, 492, 795 N.E.2d 240 (2003).

With regard to the temporal restriction, the circuit courtdid not find the time periods unreasonable in length; it merelyquestioned how Dr. Monteverde arrived at each time period. Similar temporal restrictions have been upheld as reasonable. See Cockerill v. Wilson, 51 Ill. 2d 179, 281 N.E.2d 648 (1972)(five years); Canfield v. Spear, 44 Ill. 2d 49, 254 N.E.2d 433(1969) (three years); Prairie Eye Center, Ltd., 305 Ill. App. 3d442 (two years). The plaintiffs' reliance on House of Vision,Inc. v. Hiyane, 37 Ill. 2d 32, 225 N.E.2d 21 (1967), ismisplaced. In that case, the supreme court determined thecovenant was unreasonable in that it was not restricted in time,and the geographic restriction was unreasonable where theemployee was restricted from doing business where the employerhad no proprietary interest. House of Vision, Inc., 37 Ill. 2dat 38-39.

In the present case, the covenant was restricted in time,and the circuit court found the geographical restrictionreasonable. The evidence does not support a finding that thethree- and five-year temporal restrictions were unreasonable.

The circuit court did find the activity restriction to beoverly broad and unreasonable because it was not limited to thepractice of cardiology and internal medicine but encompassed thepractice of medicine in its entirety. The defendants argue thatnumerous cases involving medical doctors have upheld similarlybroad activity restrictions even where the employee's medicalpractice was limited to a particular area. See Canfield, 44 Ill.2d 49 (a dermatologist required not to engage in the practice ofmedicine); Prairie Eye Center, Ltd. v. Butler, 329 Ill. App. 3d293, 768 N.E.2d 414 (2002) (ophthalmologist restricted fromengaging in, associating with or having a financial interest inany medical practice or ophthalmology practice); Retina Services,Ltd. v. Garoon, 182 Ill. App. 3d 851, 538 N.E.2d 651 (1989)(ophthalmologist prohibited from performing medical services). However, the plaintiffs point out that the courts in those casesnever specifically addressed the issue raised in this case,namely, whether a restriction against practicing medicine of anykind is too broad a restriction when the employer's area ofmedicine is limited in scope.

The evidence in this case established that the defendantshad a protectable business interest and that the geographic andtime restrictions were not unreasonable. The plaintiffs do notdispute that the employment contracts provided that they becompensated for their work. Dr. Monteverde testified that hispractice was limited to cardiology and internal medicine. However, he also saw patients with other problems and madereferrals. Dr. Ramadurai testified that he was licensed topractice medicine; his areas of practice were internal medicineand cardiology. Dr. Mohanty testified that his specialty wascardiology and that he was also board-certified in internalmedicine.

Under the remaining Retina Services, Ltd. factors, we findthat restricting the plaintiffs from practicing medicine will notcause undue hardship to the plaintiffs. They are free topractice medicine outside the five-mile limit, which, given thethe heavily populated Chicago metropolitan area, would notdeprive them of employment. Based on the testimony, it is not agreater restraint than necessary to protect the defendants.⁽²⁾

While internal medicine and cardiology are their specialities, asDr. Ramadurai pointed out, as a doctor, he is licensed topractice medicine, not just his specialities. Just as Dr.Monteverde saw patients for conditions unrelated to internalmedicine or cardiology, the plaintiffs' specialities do notprevent them from seeing patients in other areas of medicine, ifthey so chose, placing them in competition with the defendants.

In Geocaris v. Surgical Consultants, Ltd., 100 Wis. 2d 387,302 N.W.2d 76 (1981), the reviewing court found a restrictivecovenant provision barring the plaintiff from practicing medicineunreasonable because the defendant's practice was limited tosurgery, and the defendant had offered no evidence to justify thebarring of the plaintiff's noncompetitive practice. The courtalso rejected the trial court's conclusion that since theplaintiff would not be practicing medicine in any form other thansurgery, the excessive aspect of the restriction was not materialto the issue of whether the restriction was reasonably necessary. Finally, the court noted that in other cases, there was apossibility or probability that the employee's general practiceof medicine would have resulted in competition. Geocaris, 100Wis. 2d at 389-390, 302 N.W.2d at 78-79. However, unlike thepresent case, Geocaris was an appeal after a trial on themerits, and here, the defendants presented evidence that Dr.Monteverde saw patients for conditions not strictly related tocardiology or internal medicine.

Finally, there is no evidence that enforcement of therestriction in this case will cause a shortage of doctors in thearea or result in any other injury to the public. The plaintiffsargue that Dr. Monteverde cannot handle the patient load formerlycarried by the three doctors. However, as our supreme courtstated, "[i]t cannot be said that the public interest isadversely affected if a physician decides to move from onecommunity to another, nor does it become so if the move resultsfrom some agreement made in advance." Canfield, 44 Ill. 2d at52. We conclude that restricting the plaintiffs from thepractice of medicine was not overly broad or unreasonable underthe facts of this case.

The plaintiffs argue that the defendants cannot succeed onthe merits because the defendants breached the plaintiffs'employment contracts by failing to pay them according to thecontract terms, rendering the employment contracts unenforceable.

While acknowledging that the circuit court found that theevidence failed to establish a breach of contract, the plaintiffsagain request this court to exercise our authority to affirm thedecision, if not the reasoning, of the circuit court.

The plaintiffs note that where an employer breaches anemployment contract in a material way, the contract's restrictivecovenant is no longer binding on the employee. C.G. Caster Co.v. Regan, 88 Ill. App. 3d 280, 285, 410 N.E.2d 422 (1980); seealso Galesburg Clinic Ass'n v. West, 302 Ill. App. 3d 1016, 706N.E.2d 1035 (1999) (breach of a partnership agreement can operateto discharge the duties of a covenant not to compete where thebreach is material). However, Galesburg Clinic Ass'n did notinvolve preliminary judgment proceedings. There, the plaintifffiled an action for a declaration of rights as to a covenant-not-to-compete clause; the defendants counterclaimed for breach ofthe partnership agreement. The appeal was taken from the trialcourt's finding of a material breach that discharged thedefendants' duties under the covenant not to compete. GalesburgClinic Ass'n, 302 Ill. App. 3d at 1017.

Moreover, the history of the litigation in C.G. Caster Co.does not support the plaintiffs' position in this case. That case began when the employee filed a declaratory judgment actionagainst his employer seeking damages and a declaration that therestrictive covenant in his contract was void. Subsequently, theemployer filed a complaint to enjoin the employee's violation ofthe restrictive covenant, and the employee counterclaimed raisingthe same claims as in his declaratory judgment action. The trialcourt denied the employer's request for a temporary injunction,and the employer appealed.

On appeal, the employee argued that the motion for atemporary injunction was properly denied since the employerfailed to comply with its obligations under the contract. C.G.Caster Co. v. Regan, 43 Ill. App. 3d 663, 666, 357 N.E.2d 162(1976). In rejecting the employee's argument, the reviewingcourt stated as follows:

"'The purpose of an interlocutory, preliminary ortemporary injunction is quite clear. Such a decree isgranted before a trial on the merits of a case for thepurpose of preventing a threatened wrong, or anyfurther perpetration of injury, in order to preservethe status quo with the least injury to the partiesconcerned. [Citation.] It is not the purpose of suchan injunction to determine any controverted rights norto decide the merits of a case. [Citation.]'[Citation.]

Notwithstanding the fact that the [employee] hereraises issues which may arguably void the restrictivecovenant (e.g. lack of cause for termination of employmentand failure of [the employer] to satisfy its financialobligations under the contract), the [employer] hassufficiently raised a fair question as to the existence ofits contractual rights, and has shown it will probably beentitled to the relief prayed for if proof should sustainits allegations." C.G. Caster Co., 43 Ill. App. 3d at 666-67, quoting Grillo v. Sidney Wanzer & Sons, Inc., 26 Ill.App. 3d 1007, 1011, 326 N.E.2d 180 (1975).

After rejecting the employee's argument that the restrictivecovenant was an unfair restraint of trade, the reviewing courtreversed the denial of the temporary injunction and ordered thetrial court to enter a temporary injunction pending a dispositionon the merits. C.G. Caster Co., 43 Ill. App. 3d at 667-68.⁽³⁾

Likewise, in the present case, the plaintiffs must wait for ahearing on the merits to determine if the defendants breached theemployment contracts in a material way that would void therestrictive covenants.

We also reject the plaintiffs' argument that restrictivecovenants in physician-employment contracts are void as againstpublic policy. In Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460,693 N.E.2d 358 (1998), our supreme court held that restrictivecovenants in attorney-employment contracts were unenforceable. Dowd & Dowd, Ltd., 181 Ill. 2d at 479-83; see also Hoff v. Mayer,Brown & Platt, 331 Ill. App. 3d 732, 772 N.E.2d 263 (2002) (anexception exists for noncompetition agreements in attorneyretirement plans). Based on the Dowd & Dowd, Ltd. analysis, theFifth District Appellate Court held that restrictive covenants inphysician-employment contracts were unenforceable as againstpublic policy. See Carter-Shields v. Alton Health Institute, 317Ill. App. 3d 260, 739 N.E.2d 569 (2000). However, as theplaintiffs acknowledge, that portion of the appellate court'sdecision was vacated by the supreme court as advisory. SeeCarter-Shields v. Alton Health Institute, 201 Ill. 2d 441, 464,777 N.E.2d 948 (2002).

In Prairie Eye Center, Ltd., the reviewing court held thatrestrictive covenants in physician-employment contracts do notviolate public policy. The court rejected the reasoning of theappellate court in Carter-Shields noting that, unlike the rulesgoverning attorney conduct, the rules governing physiciansconduct did not have the force of law. The court further notedthat the Illinois courts have consistently upheld noncompetitionagreements in the medical profession. Prairie Eye Center, Ltd.,329 Ill. App. 3d at 300. We agree that, in light of existingprecedent, any change as to the enforceability of such covenantsis for our supreme court or the legislature. Prairie Eye Center,Ltd., 329 Ill. App. 3d at 300.

Based on the evidence, we conclude that the defendants havemade a prima facie showing that they are entitled to apreliminary injunction to preserve the status quo until a hearingis held on the merits of the complaint and countercomplaint.

Therefore, the circuit court abused it discretion when it deniedthe defendants' motion for a preliminary injunction.

The judgment of the circuit court is reversed, and the causeis remanded with directions to enter a preliminary injunctionpending disposition of the case on its merits.

Reversed and remanded with directions.

WOLFSON and GARCIA, JJ., concur.

1. At the hearing on the motion for reconsideration, thecircuit court noted that the reference to Dr. Ramadurai was amistranscription.

2. The plaintiffs point out that the restrictive covenants barthem from practicing at Sacred Heart Hospital even though Dr.Monteverde testified that he did not go to Sacred Heart Hospital. Dr. Monteverde also testified that he was on the staff at SacredHeart Hospital, and even though he was not yet over there, heexpected to be.

3. Following a hearing on the merits, the trial court heldthat the employer did not abide by the terms of the contract andcould not seek enforcement of the restrictive covenant. Thatfinding was affirmed on appeal. C.G. Caster Co., 88 Ill. App. 3d280.