Maywood Sportservice, Inc. v. Maywood Park Trotting Ass'n, Inc.

• Decision Date: 05 August 1976
• Docket Number: No. 61635,61635
• Citation: 40 Ill.App.3d 1028,353 N.E.2d 295
• Parties: MAYWOOD SPORTSERVICE, INC., Plaintiff-Appellant, v. MAYWOOD PARK TROTTING ASSOCIATION, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 295

353 N.E.2d 295

40 Ill.App.3d 1028

MAYWOOD SPORTSERVICE, INC., Plaintiff-Appellant, v. MAYWOOD PARK TROTTING ASSOCIATION, INC., Defendant-Appellee.

No. 61635.

Appellate Court of Illinois, First District, Third Division.

Aug. 5, 1976.

Robert F. Hanley, Rodney D. Joslin, and Barbara S. Steiner, Jenner & Block, Chicago, for plaintiff-appellant.

Theodore A. Groenke, Gary L. Prior and Mark R. Miller, McDermott, Will & Emery, Chicago, for defendant-appellee.

McNAMARA, Justice:

Plaintiff, Maywood Sportservice, Inc. brought this declaratory judgment action in the circuit court of Cook County against defendant, Maywood Park Trotting Association, Inc. Plaintiff sought a declaration that a concession contract between the parties remained in full force and effect. Defendant counterclaimed seeking a declaration that plaintiff had breached the contract, thereby permitting defendant to terminate the contract. Plaintiff sought a preliminary injunction and defendant filed a motion for judgment on the pleadings. The trial court granted defendant's motion for judgment on the pleadings and plaintiff appeals.

Defendant conducts harness racing meets at Maywood Park and plaintiff is the concessionaire at the track. The concession contract, which runs until December 31, 1986, grants plaintiff exclusive right to provide concession service at Maywood Park so long as it faithfully observes all the provisions and conditions set forth in the agreement. Certain parts of the contract are particularly pertinent in this suit. Paragraph 11 provides that plaintiff '* * * shall obtain at its own cost and expense, all necessary state, county, and federal licenses as shall be required for the operation and maintenance of its business.' Paragraph 7 requires plaintiff to provide defendant with services comparable to those rendered at other tracks. In the event that plaintiff fails to fulfill any obligation or cure any default within 15 days of notice, defendant is empowered under Paragraph 20 to terminate the contract.

On December 13, 1974, the Illinois Racing Board denied plaintiff a concession license for the 1975 racing season. On December 26 plaintiff filed an action for administrative review, challenging the Racing Board's authority to regulate race track concessions and challenging the propriety of its decision. Despite the pending judicial review, defendant, on January 17, 1975, gave written notice to plaintiff that the latter was delinquent with respect to performance of its obligations under the contract in that it had failed to obtain a concession license for the 1975 racing season. The letter recited that if the delinquency was not cured within 15 days, defendant intended to exercise its option to terminate the contract.

On January 27, 1975, plaintiff filed this action seeking a declaration that defendant was not entitled to terminate the concession contract and that plaintiff was entitled to its enforcement pending judicial review of the Racing Board's order. The complaint recited that plaintiff operates the concession services at Maywood Park under a contract with defendant; that the Racing Board's order was currently pending before the circuit court in an administrative review proceeding; and that, in a similar administrative review proceeding, the circuit court of St. Clair County had enjoined the Racing Board from interfering with the business of a concessionaire pending the outcome of administrative review. The complaint further recited that as a result of the Racing Board's order, defendant threatened to terminate the concession contract and prayed the court to declare that plaintiff had not violated the agreement and that the contract remained in full force and effect.

Defendant filed an answer and affirmative defenses attacking the sufficiency of the complaint. Defendant also filed a three-count counterclaim. Count I set forth the license requirement of the contract and stated that plaintiff had failed to obtain a concession license; that defendant had served plaintiff with notice of default; and that the delinquency had not been corrected. Count II alleged that, as a result of the Racing Board's order, performance of the contract by plaintiff had become impossible. Count III recited the contract provision requiring plaintiff to provide service comparable to that rendered at other race tracks and claimed that plaintiff, by its misconduct, had breached this provision. Based on these alleged violations, defendant sought a declaration that the contract had been breached and it was entitled to terminate.

Plaintiff requested a preliminary injunction and defendant sought judgment on the pleadings. After hearing arguments, the trial court denied injunctive relief to plaintiff and...