Brown and Brown, Inc. v. Mudron

SUPREME COURT CASES

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State: Illinois

Court: 3rd District Appellate

Docket No: 3-06-0908 Rel

Case Date: 03/11/2008

Preview:No. 3--06--0908 ______________________________________________________________________________ Filed March 11, 2008 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2008 BROWN AND BROWN, INC., a Florida Corporation, ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, ) Will County, Illinois Plaintiff-Appellant, ) ) v. ) ) No. 03-CH-1363 PATRICK MUDRON and CORNOLO ) AND THOMPSON, LTD., an Illinois ) Corporation, ) ) Honorable Defendants (Diane Gunderson, ) Herman S. Haase, Defendant-Appellee). ) Judge, Presiding. ______________________________________________________________________________ JUSTICE CARTER delivered the opinion of the court: ______________________________________________________________________________ Plaintiff, Brown & Brown, Inc. (Brown), filed a breach of contract claim against defendant, Diane Gunderson, a former employee, alleging that Gunderson had violated the restrictive covenant contained in her employment agreement with Brown. After extensive discovery, the trial court granted summary judgment for Gunderson. Brown appeals and argues that issues of material fact preclude a grant of summary judgment. We affirm.

FACTS Brown is a Florida corporation that provides insurance services. In 2002, Brown purchased the John Manner Insurance Agency (JMI) in Joliet. Gunderson was a customer service

representative at JMI and had worked there since 1997. As part of the purchase, Gunderson and all

of JMI's other existing employees were required to sign an employment agreement with Brown. At least one employee, who refused to sign the agreement, was terminated. Although the agreement did not specifically use the term "at will," it provided that the employee could be terminated at any time, with or without cause. The agreement contained a postemployment restrictive covenant that prohibited the employee from soliciting or servicing any of Brown's customers or disclosing any confidential information for two years after employment with Brown had ended. The agreement also contained a choice of law provision, which stated that Florida law would apply to any controversy arising out of the agreement, and an attorney fees provision, which allowed the prevailing party in any dispute related to the agreement or the employment relationship to recover attorney fees and costs. Gunderson signed the agreement and continued working at the agency after it was purchased by Brown. Approximately seven months after the purchase, she resigned and joined a competing agency. Brown subsequently filed the instant lawsuit alleging that Gunderson had breached the employment agreement by soliciting and servicing Brown customers in violation of the restrictive covenant and by taking and using confidential information. Other claims were filed against Gunderson and the other listed defendants; however, those claims are not currently before this court. After extensive discovery, Gunderson moved for summary judgment on the breach of contract claim. The trial court--finding that there was no credible evidence produced to show that Gunderson had solicited any of Brown's customers, that Gunderson had taken a customer list, or that Gunderson had done anything in violation of the restrictive covenant--granted summary judgment. This appeal followed.

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ANALYSIS Brown argues that the trial court erred in granting summary judgment for Gunderson on its breach of contract claim and asserts that the existence of issues of material fact preclude a grant of summary judgment. Gunderson argues that summary judgment was properly granted and asserts that the employment agreement is not legally enforceable and that there are no issues of material fact that would prevent a grant of summary judgment. "The purpose of summary judgment is not to try a question of fact, but rather to determine whether a genuine issue of material fact exists." Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43, 809 N.E.2d 1248, 1256 (2004). Summary judgment is appropriate only where 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." 735 ILCS 5/2-1005(c) (West 2006); Adams, 211 Ill. 2d at 43, 809 N.E.2d at 1256. In determining whether a genuine issue of material fact exists, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the moving party and liberally in favor of the nonmoving party. Adams, 211 Ill. 2d at 43, 809 N.E.2d at 1256. "A triable issue precluding summary judgment exists where the material facts are disputed, or where, the material facts being undisputed, reasonable persons might draw different inferences from the undisputed facts." Adams, 211 Ill. 2d at 43, 809 N.E. 2d at 1256. Although "[t]he use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit," "it is a drastic means of disposing of litigation *** and should be allowed only when the right of the moving party is clear and free from doubt." Adams, 211 Ill. 2d at 43, 809 N.E.2d at 1256. In appeals from summary judgment rulings, our standard of review is de novo. Adams, 211 Ill. 2d at 43, 809 N.E.2d at 1256. We may affirm a trial

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court's grant of summary judgment on any basis supported by the record. Illinois State Bar Ass'n Mutual Insurance Co. v. Coregis Insurance Co., 355 Ill. App. 3d 156, 163, 821 N.E.2d 706, 712 (2004). Before we determine whether any issues of material fact exist, however, we must first decide whether the employment agreement is legally enforceable. To answer that question, we must determine whether Florida or Illinois law will apply to this controversy. Illinois courts have adopted the Restatement (Second) of Conflict of Laws. International Surplus Lines Insurance Co. v. Pioneer Life Insurance Co. of Illinois, 209 Ill. App. 3d 144, 152, 568 N.E.2d 9, 13-14 (1990). The Restatement provides that a choice of law provision contained in a contract will govern unless: (1) the chosen state has no substantial relationship to the parties or the transaction; or (2) application of the chosen law would be contrary to a fundamental public policy of a state with a materially greater interest in the issue in dispute. Restatement (Second) of Conflict of Laws,

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