Baughman v. Martindale-Hubbell, Inc.

• Decision Date: 13 December 1984
• Docket Number: INC,MARTINDALE-HUBBEL,No. 4-84-0283,4-84-0283
• Citation: 84 Ill.Dec. 622,129 Ill.App.3d 506,472 N.E.2d 582
• Parties: , 84 Ill.Dec. 622, 1985-1 Trade Cases P 66,445 Kenneth E. BAUGHMAN, Plaintiff-Appellant, v., a Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 582

472 N.E.2d 582

129 Ill.App.3d 506, 84 Ill.Dec. 622,

1985-1 Trade Cases P 66,445

Kenneth E. BAUGHMAN, Plaintiff-Appellant, v. MARTINDALE-HUBBELL, INC., a Corporation, Defendant-Appellee.

No. 4-84-0283.

Appellate Court of Illinois Fourth District.

Dec. 13, 1984.

Kenneth E. Baughman, Monticello, for plaintiff-appellant.

Charles L. Palmer, Franklin, Flynn & Palmer, Champaign, for defendant-appellee.

MILLS, Justice:

A lawyer's directory.

Injunction sought against it.

The trial court dismissed.

We affirm.

Attorney Kenneth Baughman filed a complaint for injunctive relief against Martindale-Hubbell, Inc., alleging violations of the Illinois Antitrust Act (Ill.Rev.Stat.1981, ch. 38, par. 60-1 et seq.) and the Uniform Deceptive Trade Practices Act (Ill.Rev.Stat.1981, ch. 121 1/2, par. 311 et seq.).

The action challenges the attorney rating system employed in the law directory published by Martindale-Hubbell and the terms on which defendant accepts advertising in the directory. The trial court dismissed the complaint, attorney Baughman elected to stand on his complaint and he here appeals the order of dismissal.

Defendant publishes the Martindale-Hubbell Law Directory, a national directory of attorneys. The directory is divided into two sections. The first section, termed the "Geographical Bar Roster," purports to list the name of every lawyer in the country and certain encoded biographical information relating to each. Ratings derived from confidential recommendations of lawyers and judges appear with a large number of the listings in the Geographical Bar Roster. Inclusion in this section is offered free of charge to the attorneys listed therein. The second section, termed the "Biographical Section," is composed of paid advertisements placed by qualifying lawyers and firms. To qualify for purchasing an advertisement in this section, a lawyer must receive a certain rating under the defendant's system or be associated with a firm so rated.

Plaintiff is an attorney licensed to practice law in the State of Illinois. It appears that in previous years plaintiff's name was included in the listings of the Geographical Bar Roster. On April 30, 1983, however, he informed Martindale-Hubbell that he did not desire to be rated in the directory. He inquired of the defendant (1) whether he could purchase advertising in the directory without being rated, and (2) if a rating was required, whether he would be allowed to inspect the recommendations relating to him in order to correct any inaccurate responses in the replies. He received no response to these inquiries.

Count I of the complaint alleges that the rating system and advertising format of the directory constitute a deceptive trade practice within the meaning of section 2 of the Uniform Deceptive Trade Practices Act. It is alleged that these features of the publication violate the Act by creating a likelihood of confusion or misunderstanding as to the quality and characteristics of the legal services offered by attorneys who are listed in the directory. The accuracy of the ratings is specifically challenged, it being alleged that the confidential recommendations solicited by the defendant may be based on hearsay, and no efforts to verify the recommendations are undertaken. In addition, it is alleged that the directory is misleading in that it does not indicate that the lawyer ratings do not represent the endorsement of all judges nor of any bar association.

Count II alleges that the directory is published pursuant to an implied contract, combination, or conspiracy with the attorneys who purchase advertising in the directory, which operates to restrain trade or commerce in violation of the Illinois Antitrust Act. It is alleged that the defendant refused to sell plaintiff advertising unless he submitted to its rating system. It is further alleged that the directory is the exclusive medium for advertising outside a lawyer's local advertising area at a practicable cost. Count II avers that the majority of legal business referred from outside plaintiff's county is referred on the basis of the listings in the Biographical Section of the directory. It is alleged that the aforementioned contract, combination, or conspiracy discourages the forwarding of legal business into plaintiff's area by employment of discriminatory advertising policies and the refusal to publish legal fees.

Both counts seek to enjoin Martindale-Hubbell's rating system and the limitations set on the content of advertisements in the directory. Count I alleges that, as a user of the directory, plaintiff anticipates irreparable harm in that he will be unable to locate competent counsel outside his area, due to the inaccurate ratings and the limitations imposed on advertising content in the directory. In addition, both counts allege irreparable harm to plaintiff in that he will:

"1. Sustain a loss of business to other attorneys in his practicing area who are rated in the arbitrary and discriminatory manner as hereinafter set forth;

2. Sustain a loss of business because the directory fails to indicate that the Plaintiff has requested not to be rated therein;

3. Sustain a loss of business because of the arbitrary rating system as alleged hereinafter which discriminates in its advertising practices by granting advertising to 'a' and 'b' rated attorneys while denying advertising to all other practicing attorneys in its general Biographical advertising section.

4. Sustain a loss of his reputation by not being allowed to inspect the rating file the Defendant has on him in order to determine the accuracy and veracity of statements contained therein by rating attorneys and judges, so as to establish his right to advertise therein in the general Biographical section.

5. Sustain a loss of business because the Defendant will not allow him to advertise his fees therein."

Defendant filed a motion to dismiss based expressly upon section 2-615 of the Code of Civil Procedure. (Ill.Rev.Stat.1981, ch. 110, par. 2-615.) The trial court allowed the motion as to both counts of the complaint. On appeal, plaintiff argues that the complaint adequately stated causes of action under the Illinois Antitrust Act and the Uniform Deceptive Trade Practices Act.

Before considering the merits of the issues, we must comment upon the procedure followed by the parties in the trial court. The motion ruled upon by the trial court was entitled by the defendant "Motion to Dismiss Complaint for Injunction." After the filing of the motion, defendant orally sought leave to designate the motion as a section 2-615 motion. Leave was allowed. Despite these representations of the nature of the motion, however, the motion alleged material new facts and included supporting affidavits and evidentiary materials. In response, plaintiff filed a counteraffidavit.

It is well established that a motion to dismiss may not be combined with a motion for summary judgment. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 312 N.E.2d 605.) A section 2-615 motion is limited to the face of the pleadings and admits the truth of all well pleaded facts. (Davis v. Weiskopf (1982), 108 Ill.App.3d 505, 64 Ill.Dec. 131, 439 N.E.2d 60; Inland Real Estate Corp. v. Christoph (1981), 107 Ill.App.3d 183, 63 Ill.Dec. 9, 437 N.E.2d 658.) Factual defenses are not available under section 2-615; the court may consider only the allegations of the complaint and may not consider supporting affidavits offered by the movant. Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill.App.3d 638, 71 Ill.Dec. 481, 450 N.E.2d 1360; Davis.

The motion to dismiss filed by defendant in this cause improperly alleged new facts and submitted evidentiary support for those allegations. Nevertheless...