                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




               Fifield v. Premier Dealer Services, Inc., 2013 IL App (1st) 120327




Appellate Court            ERIC D. FIFIELD and ENTERPRISE FINANCIAL GROUP, INC.,
Caption                    Plaintiffs and Counterdefendants-Appellees, v. PREMIER DEALER
                           SERVICES, INC., Defendant and Counterplaintiff-Appellant.



District & No.             First District, First Division
                           Docket No. 1-12-0327


Filed                      June 24, 2013


Held                       The trial court’s order granting plaintiffs’ motion for declaratory relief
(Note: This syllabus       stating that the nonsolicitation and noncompetition provisions of his
constitutes no part of     employment contract with defendant were invalid and unenforceable due
the opinion of the court   to the lack of consideration was upheld on appeal, since plaintiff resigned
but has been prepared      three months after he started work and Illinois courts have held that a
by the Reporter of         minimum of two years of continued employment is necessary to establish
Decisions for the          adequate consideration for such a restrictive covenant.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-CH-9204; the
Review                     Hon. Mary Anne Mason, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Schiff Hardin, LLP, of Chicago (Charles H.R. Peters, of counsel), and
Appeal                     Hemmer DeFrank, PLLC, of Fort Mitchell, Kentucky (Scott R. Thomas,
                           of counsel), for appellant.

                           Much Shelist, P.C., of Chicago (Anthony C. Valiulis and Matthew M.
                           Kovalcik, of counsel), and Shields Legal Group, of Addison, Texas
                           (James D. Shields, of counsel), for appellees.


Panel                      JUSTICE CUNNINGHAM delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Hoffman and Justice Delort concurred in the judgment
                           and opinion.




                                            OPINION

¶1          This appeal arises from a December 20, 2010 order entered by the circuit court of Cook
        County which granted a motion for declaratory relief filed by plaintiffs and
        counterdefendants-appellees Eric D. Fifield (Fifield) and Enterprise Financial Group, Inc.
        (EFG) (collectively, Fifield and EFG); and a January 18, 2012 agreed order entered by the
        circuit court which dismissed with prejudice all claims not affected by the court’s December
        20, 2010 order. On appeal, defendant and counterplaintiff-appellant Premier Dealer Services,
        Inc. (Premier), argues that the trial court erred in granting Fifield and EFG’s motion for
        declaratory relief because the nonsolicitation and noncompetition provisions in Fifield’s
        employment agreement were enforceable under Illinois law. For the following reasons, we
        affirm the judgment of the circuit court of Cook County.

¶2                                        BACKGROUND
¶3           Prior to October 2009, Fifield was employed by Great American Insurance Company
        (Great American). As an employee of Great American, Fifield was assigned to work
        exclusively for Premier Dealership Services (PDS), a subsidiary of Great American. PDS
        was an insurance administrator that marketed finance and insurance products to the
        automotive industry. In October 2009, Great American sold PDS to Premier. Premier is an
        Illinois corporation engaged in the business of developing, marketing and administering a
        variety of vehicle after-market products and programs. As a result of the sale, Great
        American informed Fifield that his employment would end on October 31, 2009. However,
        in late October 2009, Premier made an offer of employment to Fifield. As a condition of his
        employment, Premier required Fifield to sign an “Employee Confidentiality and Inventions
        Agreement” (the agreement) which included nonsolicitation and noncompetition provisions.

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     The agreement states in pertinent part:
         “Employee agrees that for a period of two (2) years from the date Employee’s
         employment terminates for any reason, Employee will not, directly or indirectly, within
         any of the 50 states of the United States, for the purposes of providing products or
         services in competition with the Company (i) solicit any customers, dealers, agents,
         reinsurers, PARCs, and/or producers to cease their relationship with the Company ***
         or (ii) interfere with or damage any relationship between the Company and customers,
         dealers, agents, reinsurers , PARCs, and/or producers *** or (iii) *** accept business of
         any former customers, dealers, agents, reinsurers, PARCs, and/or producers with whom
         the Company had a business relationship within the previous twelve (12) months prior
         to Employee’s termination.”
¶4       Before signing the agreement, Fifield negotiated with Premier and the parties agreed to
     add to the agreement a provision which stated that the nonsolicitation and noncompetition
     provisions would not apply if Fifield was terminated without cause during the first year of
     his employment (the first-year provision). Fifield accepted Premier’s offer of employment
     and signed the agreement on October 30, 2009. Fifield began his employment at Premier on
     November 1, 2009. On February 1, 2010, Fifield informed Premier that he was resigning and
     that his employment would end in two weeks. On February 12, 2010, Fifield resigned from
     his position with Premier. Shortly thereafter, Fifield began working for EFG.
¶5       On March 5, 2010, Fifield and EFG filed a complaint in the circuit court of Cook County
     for declaratory relief pursuant to section 2-701 of the Illinois Code of Civil Procedure (Code)
     (735 ILCS 5/2-701 (West 2010)). The complaint for declaratory relief requested that the trial
     court declare that Fifield at no time had access to confidential and proprietary information
     while employed at Premier and that certain provisions of the agreement are invalid and
     unenforceable. On August 6, 2010, Premier filed an answer and affirmative defenses to
     Fifield and EFG’s complaint, and a counterclaim for injunctive relief. Premier’s
     counterclaim, in pertinent part, sought to enforce the nonsolicitation and noncompetition
     provisions in the agreement, and requested that the trial court enter a permanent injunction
     preventing Fifield from using Premier’s proprietary information.
¶6       On September 20, 2010, Premier filed a “Motion for Judgment” against Fifield and EFG.
     On September 22, 2010, Fifield and EFG filed a motion for declaratory relief pursuant to
     section 2-701(b) of the Code (735 ILCS 5/2-701(b) (West 2010)). On December 16, 2010,
     the trial court heard oral arguments on Fifield and EFG’s motion for declaratory relief. On
     December 20, 2010, the trial court entered an order which granted Fifield and EFG’s motion
     for declaratory relief. The trial court’s order stated that “the non-solicitation and non-
     interference provisions found within [the agreement] are unenforceable as a matter of law
     for lack of adequate consideration.” The parties continued to litigate claims that are not at
     issue in this appeal. On January 18, 2012, the trial court entered an agreed order which
     dismissed with prejudice all claims that were not affected by the trial court’s December 20,
     2010 order. The trial court’s January 18, 2012 order stated that it was final and appealable
     pursuant to Illinois Supreme Court Rule 303 (eff. May 30, 2008). On February 1, 2012,
     Premier filed a timely notice of appeal. Therefore, this court has jurisdiction to consider
     Premier’s arguments on appeal pursuant to Rule 303.

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¶7                                            ANALYSIS
¶8         On appeal, we determine whether the trial court erred in granting Fifield and EFG’s
       motion for declaratory relief.
¶9         Premier argues that the trial court erred in granting Fifield and EFG’s motion for
       declaratory relief. Specifically, Premier argues that the nonsolicitation and noncompetition
       provisions in the agreement are enforceable because there was adequate consideration to
       support the provisions. Premier argues that unlike in other Illinois cases relied on by Fifield
       and EFG, Fifield was not employed when he was asked to sign the agreement. Thus, the
       consideration offered to Fifield in this case was employment itself. Premier asserts that it
       gave Fifield ample consideration in exchange for his promise to abide by the nonsolicitation
       and noncompetition provisions because Fifield was able to avoid unemployment by
       accepting Premier’s offer. Additionally, Premier argues that although the nonsolicitation and
       noncompetition agreements are restrictive covenants, they are not postemployment restrictive
       covenants because Fifield signed the agreement before he became an employee of Premier.
       Furthermore, Premier points out that the purpose of Illinois law regarding restrictive
       covenants is to protect against the illusory benefit of at-will employment. However, Premier
       contends that the illusory benefit of at-will employment is not at issue in this case because
       it was nullified by the inclusion of the first-year provision in the agreement. Therefore,
       Premier argues that the nonsolicitation and noncompetition provisions in the agreement are
       enforceable.
¶ 10       In response, Fifield and EFG argue that the trial court did not err in granting their motion
       for declaratory relief. Specifically, Fifield and EFG argue that the nonsolicitation and
       noncompetition provisions in the agreement are unenforceable because there was not
       adequate consideration to support the provisions. Fifield and EFG contend that under Illinois
       law, in order for a restrictive covenant to be enforceable, employment must continue for a
       substantial period of time. Fifield and EFG point out that Illinois courts have repeatedly held
       that two years of continued employment is adequate consideration to support a restrictive
       covenant. Illinois courts have also stated that the length of time required for adequate
       consideration is the same regardless of whether an employee is terminated or decides to
       resign on his own. Thus, Fifield and EFG assert that in this case, Fifield was only employed
       by Premier for slightly longer than three months, which is far less time than is needed to
       establish adequate consideration.
¶ 11       Moreover, Fifield and EFG assert that multiple federal court cases have refused to make
       a distinction between restrictive covenants that are signed before an individual is employed
       and restrictive covenants that are signed after an individual is employed. Fifield and EFG
       argue that the nonsolicitation and noncompetition provisions were postemployment
       restrictive covenants, and that it is irrelevant whether Fifield signed the agreement before
       employment or during employment. Lastly, Fifield and EFG argue that the first-year
       provision in the agreement does not remove the illusory benefit of at-will employment.
       Fifield and EFG contend that at most, Fifield’s employment was only protected for one year
       which is far less than the two-year Illinois standard for adequate consideration. Thus, Fifield
       and EFG argue that the nonsolicitation and noncompetition provisions in the agreement are
       unenforceable and the trial court did not err in granting their motion for declaratory relief.

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¶ 12        When a trial court’s decision in a declaratory judgment is based on questions of law
       rather than factual determinations, this court reviews the trial court’s decision under the de
       novo standard of review. Pekin Insurance Co. v. Hallmark Homes, L.L.C., 392 Ill. App. 3d
       589, 592-93 (2009). Likewise, “[i]t is traditionally stated that the enforceability of a
       restrictive covenant is a question of law, the determination of which is reviewed de novo.”
       Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871, ¶ 12. Therefore, we review the
       judgment of the trial court under the de novo standard of review.
¶ 13        Postemployment restrictive covenants are carefully scrutinized by Illinois courts because
       they operate as partial restrictions on trade. Cambridge Engineering, Inc. v. Mercury
       Partners 90 BI, Inc., 378 Ill. App. 3d 437, 447 (2007). In order for a restrictive covenant to
       be valid and enforceable, the terms of the covenant must be reasonable. Id. However, before
       even considering whether a restrictive covenant is reasonable, the court must make two
       determinations: (1) whether the restrictive covenant is ancillary to a valid contract; and (2)
       whether the restrictive covenant is supported by adequate consideration. Lawrence & Allen,
       Inc. v. Cambridge Human Resource Group, Inc., 292 Ill. App. 3d 131, 137 (1997). The only
       issue before this court in this case is whether there was adequate consideration to support the
       restrictive covenants in the agreement.
¶ 14        “Under Illinois law, continued employment for a substantial period of time beyond the
       threat of discharge is sufficient consideration to support a restrictive covenant in an
       employment agreement.” Brown & Brown, Inc. v. Mudron, 379 Ill. App. 3d 724, 728 (2008).
       Illinois courts analyze the adequacy of consideration in the context of postemployment
       restrictive covenants because it has been recognized that a promise of continued employment
       may be an illusory benefit where the employment is at-will. Id. Generally, Illinois courts have
       held that continued employment for two years or more constitutes adequate consideration.
       Id. at 728-29. The restrictive covenant will not be enforced unless there is adequate
       consideration given. Id.
¶ 15        In support of their argument, Fifield and EFG argue that Brown is dispositive of the
       issues in this case. In Brown, the defendant worked as a customer service representative for
       her employer. Id. at 726. While the defendant was still employed, her employer was
       purchased by the plaintiff. Id. As part of the purchase, the plaintiff required the defendant to
       sign an employment agreement which contained a postemployment restrictive covenant that
       prohibited the defendant from soliciting or servicing any of the plaintiff’s customers, or from
       disclosing confidential information, for two years after her employment with the plaintiff
       ended. Id. The defendant signed the employment agreement, and seven months later she
       resigned and began working for one of the plaintiff’s competitors. Id. Subsequently, the
       plaintiff filed a breach of contract claim against the defendant alleging that she breached the
       employment agreement by soliciting and servicing the plaintiff’s customers, and by using the
       plaintiff’s confidential information. Id. The defendant filed a motion for summary judgment
       on the breach of contract claim, which the trial court granted. Id.
¶ 16        On appeal, this court held that there was not adequate consideration to support the
       restrictive covenants in the employment agreement. Id. at 729. This court concluded that
       seven months of continued employment was not sufficient consideration under Illinois law
       to support the restrictive covenant. Id. This court stated that the fact that the defendant

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       resigned did not change its analysis. Id. The court reasoned that although the plaintiff
       claimed that the defendant received additional employee benefits as consideration for the
       restrictive covenant, there was no evidence to establish what the benefits were or how they
       differed from the benefits the defendant was already receiving. Id. Therefore, this court
       affirmed the judgement of the trial court. Id.
¶ 17        Premier argues that the holding in Brown is not applicable to this case because, unlike
       the defendant in Brown, Fifield was not employed by Premier when he signed the agreement.
       Thus, Premier argues that Fifield’s employment was the consideration he received in
       exchange for the nonsolicitation and noncompetition provisions within the agreement. We
       do not agree. As Fifield and EFG point out, in Bires v. WalTom, LLC, 662 F. Supp. 2d 1019,
       1030 (2009), the United States District Court for the Northern District of Illinois explicitly
       rejected the argument that Brown only applies to situations where an employer amends an
       existing employment relationship to incorporate a restrictive covenant. While we are not
       bound by the ruling of the court in Bires, we find its reasoning and analysis instructive. The
       district court reasoned that “the Seventh Circuit has rejected the distinction between pre and
       post-hire covenants.” Id. (citing Curtis 1000, Inc. v. Suess, 24 F.3d 941, 947 (7th Cir. 1994)).
       Moreover, the only case that Premier cites in support of its argument is Sunbelt Rentals, Inc.
       v. Elhers, 394 Ill. App. 3d 421 (2009). We note that Sunbelt was overruled by our supreme
       court in Arredondo, and furthermore, Sunbelt did not discuss the issue of the adequacy of
       consideration regarding restrictive covenants. Thus, we are not persuaded by Premier’s
       argument that Brown is distinguishable from the instant case.
¶ 18        We also disagree with Premier’s argument that the nonsolicitation and noncompetition
       provisions in the agreement were not postemployment restrictive covenants because Fifield
       signed the agreement before he was employed by Premier. Premier cites no authority for its
       novel definition of postemployment restrictive covenants. Additionally, Illinois courts have
       treated restrictive covenants signed by individuals in situations similar to Fifield’s, as
       postemployment restrictive covenants. See Lifetec, Inc. v. Edwards, 377 Ill. App. 3d 260, 263
       (2007) (On or before April 1, 1996, the defendant was offered employment and accepted the
       offer. On April 2, 1996, the defendant signed an employment agreement containing
       nonsolicitation and noncompetition provisions which the appellate court considered as
       postemployment restrictive covenants.). In this case, the nonsolicitation and noncompetition
       provisions in the agreement restricted Fifield’s ability to seek further employment after his
       employment with Premier ended. Therefore, we find that the nonsolicitation and
       noncompetition provisions in the agreement were postemployment restrictive covenants.
¶ 19        Illinois courts have repeatedly held that there must be at least two years or more of
       continued employment to constitute adequate consideration in support of a restrictive
       covenant. Diederich Insurance Agency, LLC v. Smith, 2011 IL App (5th) 100048, ¶ 15; see
       also Lawrence & Allen, 292 Ill. App. 3d at 138; Brown, 379 Ill. App. 3d at 728-29. This rule
       is maintained even if the employee resigns on his own instead of being terminated.
       Diederich, 2011 IL App (5th) 100048, ¶ 15; Brown, 379 Ill. App. 3d at 729. In this case,
       Fifield resigned from Premier after being employed for slightly longer than three months.
       This period of time is far short of the two years required for adequate consideration under
       Illinois law. Additionally, the first-year provision in the agreement does not affect the

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       application of the two-year standard for adequate consideration. At most, Fifield’s
       employment was only protected for one year, which is still inadequate under Illinois law.
       Therefore, we hold that the trial court did not err in granting Fifield and EFG’s motion for
       declaratory judgment.
¶ 20      For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 21      Affirmed.




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