Medline Industries, Inc. v. Pascal

• Decision Date: 18 November 1974
• Docket Number: No. 73--422,73--422
• Citation: 23 Ill.App.3d 346,319 N.E.2d 310
• Parties: MEDLINE INDUSTRIES, INC., an Illinois corporation, Plaintiff-Appellee, v. Robert PASCAL et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 310

319 N.E.2d 310

23 Ill.App.3d 346

MEDLINE INDUSTRIES, INC., an Illinois corporation, Plaintiff-Appellee, v. Robert PASCAL et al., Defendants-Appellants.

No. 73--422.

Appellate Court of Illinois, Second District.

Nov. 18, 1974.

Robert K. Polovin, Richard A. Wolfe, Chicago, Ben Rifken, Elgin, for defendants-appellants.

Goldberg, Weigle, Mallin & Gitles, Richard P. Glovka, Chicago, Wasneski, Yastrow, Kuseski & Flanigan, Waukegan, Lederer, Fox & Grove, Chicago, Finn, Geiger & Rafferty, Waukegan, for plaintiff-appellee.

RECHENMACHER, Justice:

This is an appeal from 2 interlocutory orders entered by the circuit court of Lake County in November, 1973 denying defendants' motions to stay proceedings in this case until a determination of the issues presented in a case pending in the circuit court of Cook County, Illinois.

On July 10, 1972 Medline Industries, Inc. ('Medline') filed its complaint in this case for damages against Robert Pascal ('Pascal'), a resident of Lake County, based upon Pascal's written guarantee of performance by Proviso Plastics, Inc. ('Proviso') of a certain contract with Medline dated February 10, 1971, alleging that Proviso had breached the said contract. After the court denied Pascal's motion to join Priviso and Paul Marcheschi ('Marcheschi') as additional defendants, Pascal, on November 13th, filed his answer and a 'third party complaint' against Priviso and Marcheschi, alleging that under an indemnity provision in a stock purchase agreement between Pascal and Marcheschi, the latter, a co-guarantor, agreed to hold Pascal harmless from actions brought by Medline, and was liable for any resulting judgment.

On February 6, 1973 Proviso filed a complaint in the circuit court of Cook County against Medline and its 'wholly owned subsidiary', Dynacor Manufacturing Corporation ('Dynacor'), for rescission of 4 production contracts between the parties and for damages resulting from the breach.

On February 7th, by leave of court, Medline filed its amended complaint in this Lake County case adding Marcheschi and Proviso as defendants and alleging breach by Proviso of the February 10, 1971 contract and of a second contract. Thereupon Marcheschi and Proviso moved for leave to file a limited appearance and to transfer venue to Cook County on the ground that the principal place of business of Medline and Proviso and the residence of Marcheschi are in Cook County, and that the transactions occurred in Cook County. On March 8th the trial court denied that motion.

Proviso then filed a motion to dismiss Medline's amended complaint as well as Pascal's third party complaint, this motion being based upon the fact that there was a prior pending suit in the circuit court of Cook County involving all the issues between Proviso and Medline. This motion was denied on July 6th by the trial court.

On September 21 the Cook County circuit court denied Medline's motion to dismiss Proviso's complaint in that court.

On November 2nd Proviso and Marcheschi filed a motion in the Lake County circuit court to dismiss the amended complaint and to stay the Lake County action against Pascal and Marcheschi until the determination of the Cook County suit. That motion was denied. On November 16th Proviso, Marcheschi and Pascal filed their motion asking the Lake County court to reconsider the order of November 2nd. This motion set forth the denial by the Cook County circuit court of Medline's motion to dismiss that case based upon a prior pending action in Lake County and attached a copy of that order and of Proviso's amended complaint in Cook County. It also alleged dual legal expenses by reason of the 2 suits, and requested that the order of November 2nd be vacated and the proceedings stayed until determination of the Cook County case. This petition was likewise denied by the Lake County circuit court, and defendants appealed to this court.

On January 16, 1974 Medline filed its motion to dismiss this appeal asserting that it does not fall within any of the interlocutory orders which are appealable under Supreme Court Rule 307 (Ill.Rev.Stat.1973, ch. 110A, par. 307). On January 30th upon defendants' emergency motion alleging the entry on January 25th of a order by the trial court for discovery depositions of Marcheschi and for sanctions in the event of his failure to appear, we stayed proceedings in the Lake County circuit court until further order. Shortly thereafter we denied Medline's motion to dismiss this appeal and vacated our temporary stay order.

We first consider the appealability of the trial court's denial of the stay order. Supreme Court Rule 307(a) provides in part as follows:

'An appeal may be taken to the Appellate Court from an interlocutory order of court

'(1) granting, modifying, refusing, . . . an injunction; . . .'

No question is raised here as to defendants' compliance with the procedural provisions of that rule. Illinois courts, as well as the United States Supreme Court, have held that a 'stay order' is synonymous with an...