J. Eck & Sons, Inc. v. Reuben H. Donnelley Corp.

• Decision Date: 03 May 1991
• Docket Number: No. 1-90-2152,1-90-2152
• Citation: 213 Ill.App.3d 510,157 Ill.Dec. 626,572 N.E.2d 1090
• Parties: , 157 Ill.Dec. 626 J. ECK & SONS, INC., Plaintiff-Appellant, v. The REUBEN H. DONNELLEY CORPORATION, Defendant-Appellee. First District, Fifth Division
• Court: United States Appellate Court of Illinois

Page 1090

572 N.E.2d 1090

213 Ill.App.3d 510, 157 Ill.Dec. 626

J. ECK & SONS, INC., Plaintiff-Appellant, v. The REUBEN H. DONNELLEY CORPORATION, Defendant-Appellee.

No. 1-90-2152.

Appellate Court of Illinois,

First District, Fifth Division.

May 3, 1991.

Robert Orman, Chicago, for plaintiff-appellant.

Byron L. Gregory, Steven H. Hoeft, Daniel J. Donnelly, McDermott, Will & Emery, Chicago, for defendant-appellee.

Justice MURRAY delivered the opinion of the court:

Plaintiff, J. Eck & Sons, Inc. (Eck), appeals the dismissal of its complaint against the Reuben H. Donnelley Corporation (Donnelley) in an action for damages based upon the tort of intentional interference with prospective economic advantage. The single issue on appeal is whether Eck properly pled a cause of action for intentional interference with prospective economic advantage.

Insofar as this appeal is concerned, the facts are undisputed. The appeal raises a question on the pleadings. The pertinent facts are as follows.

Eck is an Illinois Corporation which, since 1969, was engaged in the home-maintenance business in Chicago's western suburbs. Donnelley publishes directories commonly called the "Yellow Pages." The directories list the names, addresses, telephone numbers, and in some cases the advertisements of many businesses and services, permitting an individual to quickly locate a desired business and its phone number. Donnelley published Eck's advertisements from 1970-1979. Donnelley's customary practice during that time had been to prorate the cost of Eck's advertising over the entire year. Eck alleges Donnelley incorrectly published its 1979 advertisement. Eck refused to pay for the 1979 advertisement. When Eck sought to place advertisements in subsequent editions of the Yellow Pages directories, Donnelley insisted Eck either pay for the 1979 advertisement or pay in advance for the subsequent advertisements.

On October 12, 1982, Eck commenced this litigation by filing a three-count complaint charging Donnelley with an antitrust violation (Count I), intentional interference with prospective economic advantage (Count II), and breach of contract (Count III).

After years of wandering through the Cook County legal system, through no fault of either the parties or the system, on January 2, 1990, Eck filed a second amended complaint consisting of an antitrust count (Count I) and an "intentional interference" count (Count II). On July 2, 1990, Count I was dismissed with prejudice and is not at issue on appeal. Additionally, on July 2, 1990, the trial court granted Donnelley's motion to dismiss Eck's "intentional interference" claim (Count II), pursuant to Section 2-615 of the Code of Civil Procedure, on the ground that Eck failed "to plead facts sufficient to allege the requisite element of intent." Subsequently, Eck filed this timely appeal.

The sole issue involved in this appeal is whether Eck's second amended complaint pled facts sufficient to satisfy the "intent" element of the tort of intentional interference with prospective economic advantage. For the following reasons we affirm the decision of the trial court.

To state a cause of action, a complaint must be legally sufficient, setting forth a legally recognized claim as its avenue of recovery as well as factually sufficient, pleading facts which bring the claim within the legally recognized cause of action alleged. (Borgsmiller v. Burroughs (1989), 187 Ill.App.3d 1, 4, 134 Ill.Dec. 774, 542 N.E.2d 1281.) A Section 2-615 motion to dismiss (Ill.Rev.Stat.1985, ch. 110, par. 2-615) is an objection provided for by the Illinois Code of Civil Procedure to test the legal sufficiency of a pleading. It is the modern substitute of the old common law general demurrer. In determining whether an assailed complaint is substantially insufficient in law, the well pleaded facts are admitted by a motion to dismiss. (Smith v. Chicago Housing Authority (1976), 36 Ill.App.3d 967, 969, 344 N.E.2d 536; City of Chicago v. Loitz (1975), 61 Ill.2d 92, 93, 329 N.E.2d 208.) Matters not well pleaded are not admitted by such a motion. Murrell v. Weitzman (1965), 58 Ill.App.2d 278, 207 N.E.2d 745.

Eck's amended complaint sets forth a background of Eck's dealing with Donnelley from 1970 through 1978. Eck was previously involved in trade-name litigation with another home-maintenance company with a similar name. As a result of that litigation, the circuit court specifically ordered Eck, beginning on April 26, 1979, to include and exclude certain information in all of Eck's future advertising copy. Donnelley was not a party to that trade-name litigation.

In 1979, Eck placed its Yellow Pages advertising for that year with Donnelley. Eck alleged that it specifically told Donnelley of the circuit court's restrictions and that Donnelley agreed to print plaintiff's ad in compliance with the court's order. Donnelley allegedly incorrectly published Eck's ad. Donnelley demanded that Eck pay, in full, for the incorrectly published advertising. Eck refused to pay the full amount demanded by Donnelley for its 1979 advertising.

Plaintiff attempted to place Yellow Pages advertising for the year 1980. Donnelley's practice from 1970 to 1979 had been to prorate the cost of Eck's advertising over the entire year. However for 1980, Donnelley demanded either full payment for the incorrect 1979 advertising or payment in advance for Eck's 1980 advertising. Eck would not pay in full for the incorrect 1979 advertising and could not pay for the 1980 advertising in advance.

Eck further alleged that it expected to do business with potential customers in the Chicago suburbs served by the directories and that two of its former customers did not purchase Eck's services because they could not find its advertisement in the Yellow Pages.

Specifically, Eck argues that the following paragraph and other allegations set forth in its second amended complaint, when construed favorably to the plaintiff, sufficiently allege intent:

"Defendant, Donnelley intentionally interfered with Plaintiff's aforementioned valid business expectancy and prevented that expectancy from ripening into a valid business relationship. Specifically, defendant Donnelley prevented Plaintiff from advertising in the Yellow Pages thereby depriving Plaintiff of potential customers until Plaintiff paid in full for an incorrectly published advertisement (defendant Donnelley knew that Plaintiff had insufficient funds to pay for future advertising in advance, leaving a single alternative--paying the full price for improperly published advertising)."

If Donnelley had intentionally interfered with Eck's business, Eck would be entitled to recover his loss, if any, even if he had to finger through Donnelley's Yellow Pages to find a lawyer to file the suit. Yet, just filing the law suit is not enough. In Illinois one must file a complaint containing facts which if proven, assert the cause of action.

The elements of the cause of action of intentional interference with economic advantage are: (1) plaintiff must have a reasonable expectancy of entering into a valid business relationship; (2) defendant must know about this expectancy; (3) defendant must intentionally interfere with the expectancy preventing the expectancy from ripening into a valid business relationship; and (4) defendant's intentional interference must...