Marlow v. American Suzuki Motor Corp.

• Decision Date: 02 December 1991
• Docket Number: No. 1-90-2648,1-90-2648
• Citation: 584 N.E.2d 345,165 Ill.Dec. 166,222 Ill.App.3d 722
• Parties: , 165 Ill.Dec. 166 Vacountess MARLOW and Virginia Gallegos, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. AMERICAN SUZUKI MOTOR CORPORATION, a California corporation and a wholly owned subsidiary of Suzuki Motor Company, Ltd., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 345

584 N.E.2d 345

222 Ill.App.3d 722, 165 Ill.Dec. 166

Vacountess MARLOW and Virginia Gallegos, individually and on behalf of all others similarly situated Plaintiffs-Appellants, v. AMERICAN SUZUKI MOTOR CORPORATION, a California corporation and a wholly owned subsidiary of Suzuki Motor Company, Ltd., Defendant-Appellee.

No. 1-90-2648.

Appellate Court of Illinois First District, Sixth Division.

Dec. 2, 1991.

Robert A. Holstein, C. Corey S. Berman, Thayer C. Torgerson and Donald A. Horowitz of Holstein, Mack & Klein, Chicago, for plaintiffs-appellants.

John J. Pappas and Debra K. Marcus of Pappas, Power & Marcus, and Edward M. Crane, James F. Martin and Antonio D'Amico of Skadden, Arps, Slate, Meagher & Flom, Chicago, for defendant-appellee.

Justice EGAN delivered the opinion of the court:

The plaintiffs individually and as representatives of a class sought a declaratory judgment that a motor vehicle manufactured by Suzuki Motor Companies and sold to 150,000 persons throughout the United States was defectively designed.

The plaintiffs were Natheree Marlow, Frank Forest and Heidi Gallegos individually and as representatives of a class of all persons who purchased or leased or were or are owners or lessees of the Suzuki Samurai automobile; and Vacountess Marlow and Virginia Gallegos, individually and as representatives of a class of all persons who were injured during the operation of or while a passenger in a Suzuki Samurai automobile that rolled or flipped over or otherwise lost control due to manufacturing or design defects in the vehicle. Only Vacountess Marlow and Virginia Gallegos are involved in this appeal. The claims of Natheree Marlow, Frank Forest and Heidi Gallegos were voluntarily dismissed.

The defendants were American Suzuki Motor Corporation (American Suzuki), a California corporation, Suzuki Motor Companies, a Japanese corporation, the manufacturer of the Samurai automobile, Bauer Buick Company, a foreign corporation doing business in Illinois and Ed Murphy Suzuki, an Illinois corporation. Only American Suzuki is involved in this appeal; the other defendants were dismissed on the plaintiffs' motion.

The plaintiffs filed a five-count complaint with a jury demand, alleging that the Samurai automobile is defective in design or production in that it suddenly and unintendedly rolls over when the driver operates the vehicle at normal operating speeds and under normal driving conditions. The complaint alleged, on information and belief, that the defects have resulted in numerous auto accidents. Counts I--IV were brought by Natheree Marlow, Heidi Gallegos and Frank Forest. Count I alleged a violation of an implied warranty; count II alleged a violation of the Consumer Fraud and Deceptive Trade Business Practices Act (Ill.Rev.Stat., ch. 121 1/2, par. 261 et seq.); count III alleged fraud; and count IV alleged a breach of an express warranty. Count V was brought by Vacountess Marlow and Virginia Gallegos and requested a declaration pursuant to the declaratory judgment provision of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-701) that the Suzuki Samurai is unreasonably dangerous as a result of design and manufacturing defect. Count V specifically recited that the plaintiffs were not "seeking a determination of liability" nor asking "for a determination of proximate cause of the numerous serious injuries involving individual members of the class." Included in the relief sought under count V were a request to issue an order finding the Samurai defective in design and for the establishment of a "claims procedure for informal arbitration procedures * * * to adjudicate the individual personal injury claims of the class members including the proximate cause and individual damages issued for each claim."

The plaintiffs' attorney had previously filed a class action suit on June 24, 1988, against American Suzuki, which in substance was identical to the allegations later made in counts I--IV of this action and sought identical relief. American Suzuki removed that case to the Federal court, along with four other virtually identical nationwide class actions that had been filed in the Circuit Court of Cook County at that time. While motions to remand those cases to the circuit court were pending, the plaintiffs' attorney voluntarily dismissed that case. The four actions remaining in the Federal court were subsequently found to have been properly removed and were transferred by the Judicial Panel on Multidistrict Litigation to the United States District Court for the Eastern District of Pennsylvania where they were consolidated into multidistrict proceedings along with other actions that had been filed in the Pennsylvania, New Jersey and California Federal courts.

The plaintiffs filed this action while the multidistrict proceedings were still pending. The plaintiffs, however, named two Illinois automobile dealerships (Bauer and Murphy) as additional defendants. The defendants later contended that the two Illinois automobile dealerships were named to destroy citizenship diversity and to preclude removal of this action to the Federal court for consolidation into the multidistrict proceedings. Count V in the complaint before us had not been filed in the previous action which had been removed to the Federal court. American Suzuki moved to dismiss count V for failure to state a claim and to stay counts I--IV pending the outcome of the parallel multidistrict proceedings. The plaintiffs voluntarily dismissed their claim in the multidistrict proceedings. American Suzuki then moved to dismiss counts I--IV for failure to state a claim.

On February 14, 1990, the judge dismissed counts I--IV and granted the plaintiffs leave to amend on or before March 14, 1990. Count V was dismissed with leave to amend on or before February 28, 1990. No action was taken for nearly five months.

The plaintiffs, without ever amending count V, asked the trial court for a final and appealable order dismissing count V and also moved to voluntarily dismiss counts I--IV. At the hearing on the plaintiffs' motions on August 13, 1990, the plaintiffs' attorney agreed to dismiss the Illinois resident car dealerships with prejudice. The trial judge then entered an order permitting the voluntary dismissal of counts I--IV without prejudice and dismissed count V with prejudice. The sole issue before us is whether count V pleaded proper allegations to support a declaratory judgment.

The plaintiffs have filed a motion to strike the defendant's statement of facts and an appendix to the defendant's brief on the ground that they contain matters outside the record. They also moved to strike part of the defendant's brief on the ground that it constitutes an argument against class certification which, the plaintiffs contend, is not an issue.

On February 8, 1990, before the hearing on American Suzuki's motion to dismiss, Virginia Gallegos, one of the plaintiffs, filed a separate common law tort action in the law division of the Circuit Court of Cook County seeking to recover for the personal injury she had allegedly sustained in the same accident that formed the basis of her request for relief in count V of this action.

On June 26, 1990, before a final order had been entered in this case, another nationwide class action (Connick case) was filed against American Suzuki in the Circuit Court of Cook County on behalf of the same Pennsylvania and New Jersey plaintiffs who had voluntarily discontinued their actions in the multidistrict proceedings. They were represented by the same attorneys who had filed the earlier actions in the Circuit Court of Cook County. That action reasserted the claims that had been pending in the multidistrict proceedings and included claims virtually identical to counts I--IV of the complaint in the case before us. American Suzuki moved to consolidate that action with this action. After the case before us was dismissed, the plaintiffs, Heidi Gallegos, Natheree Marlow and Frank Forest, filed a petition for leave to intervene in the Connick case.

Two days after the complaint in this case was dismissed with prejudice, Vacountess Marlow, another plaintiff in count V, also filed a separate common law tort action in the law division of the Circuit Court of Cook County seeking to recover for the same alleged personal injuries that formed the basis of her request for declaratory relief in count V of this action. The plaintiffs ask us to strike any reference in the defendant's brief to the Connick class action and the common law actions brought by Virginia Gallegos and Vacountess Marlow. The defendant has asked us to take judicial notice of those other cases. We took the motions to strike with the case.

We disagree that the Connick action is outside the record in this case. It was referred to in the defendant's objections to the motion for voluntary dismissal. The Gallegos and Marlow individual tort actions, however, were not in the record. As a general rule, an appellate court will not take judicial notice of a record in another court unless it is incorporated in the proceedings before it. Schwartz v. City of Chicago (1974), 21 Ill.App.3d 84, 315 N.E.2d 215.

In Krebs v. Mini (1977), 53 Ill.App.3d 787, 10 Ill.Dec. 673, 368 N.E.2d 159, the plaintiffs filed a complaint for a temporary restraining order which included a prayer for a finding of the existence of a partnership or joint venture between the parties and for a declaration that a constructive trust existed. The appellate court pointed out that the plaintiffs had filed a complaint at law against the defendant containing the same allegations and raising all the issues raised by the petition for a temporary restraining order. The court held that on that basis alone the trial judge would not have abused his discretion if he determined that the pending action at law was a more appropriate forum for the resolution of the issues raised in what was...