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Frey v. Belleville News-democrat





APPEAL from the Circuit Court of St. Clair County; the Hon. KENNETH JUEN, Judge, presiding.


Rehearing denied October 2, 1978.

Plaintiffs, distributors of defendant's newspaper, sued for damages alleging defendant's wrongful use of plaintiffs' customer, or route, list which defendant obtained from plaintiffs. Plaintiffs appeal an order of the Circuit Court of St. Clair County which denied their motion to reconsider the court's earlier order granting summary judgment to the defendant and denying plaintiffs' motion for leave to file an amended complaint.

In a two-count complaint, plaintiffs alleged that they were the exclusive distributors of defendant's newspaper from November 1958 to May 1976. They further alleged that they developed through their own efforts a list of customers to whom the paper was distributed. Defendant, plaintiffs assert, fraudulently induced plaintiffs to furnish defendant with the list, which defendant used for distributing the newspapers directly to its customers. In count I, plaintiffs claimed to have suffered a loss of property and income by their reliance on defendant's alleged material false and deceitful representation. In count II, plaintiffs claimed to have had a property interest in the customer list, which defendant used to its unjust enrichment. Plaintiffs demanded trial by jury.

Defendant denied making any deceitful misrepresentations, but admitted that plaintiffs were compensated for furnishing the list and keeping it current.

Plaintiff Carl Frey, in a deposition, stated that the ownership of the customer list was not discussed at the time he and defendant entered into their business relationship. He further stated that he had never known of any instance in which defendant had terminated a distribution relationship and then recognized a property right of the distributor in the circulation list.

Defendant filed a motion for summary judgment, alleging that Illinois law does not recognize a property right in a newspaper circulation list and that the parties did not recognize such an interest. Attached to the motion were the affidavits of Michael E. Davis, circulation director of defendant, and Robert L. Kern, former editor, publisher and owner of defendant. Affiants stated that the lists belonged to defendant and that the distributors, upon appointment, were given a list of subscribers. Robert L. Kern, in addition, stated that the distributor paid nothing of value for the lists and that defendant gave plaintiffs a subscriber list.

In the affidavits accompanying plaintiffs' answers to defendant's motion for summary judgment, plaintiffs had no recollection of being supplied by defendant with the customer list, alleging that they had developed their own list. Plaintiffs were hesitant to prepare a customer list for defendant, but were assured that the list would only be used for advertising purposes. In addition, plaintiffs discussed with defendant the possibility of selling the distributorship to defendant. Defendant later contacted plaintiffs to inquire whether plaintiffs were still interested in the sale.

At the time plaintiffs filed a second answer to defendant's motion for summary judgment, they filed a motion for leave of court to file an amended complaint setting forth an action based on an implied in fact contract.

The trial court granted summary judgment to defendant and, in effect, denied plaintiffs' motion to amend their complaint. The court found neither the existence of an express or implied contract nor any right in plaintiffs to the list. Plaintiffs, thereafter, filed a motion for reconsideration, which was denied.

The issues on appeal are whether the trial court properly granted defendant's motion for summary judgment and whether it properly refused plaintiffs' motion to amend the complaint.

Section 57 of the Civil Practice Act describes the standard governing motions for summary judgment as follows:

"The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ill. Rev. Stat. 1977, ch. 110, par. 57.

• 1 If there is any disputed material fact, a triable issue exists and the motion for summary judgment must be denied. In determining the existence of a material dispute, the pleadings, affidavits and depositions must be strictly construed against the moving party and liberally in favor of the opponent. (Giova v. Carrol, 109 Ill. App.2d 259, 264-65, 248 N.E.2d 836, 840 (2d Dist. 1969); Lumbermens Mutual Casualty Co. v. Poths, 104 Ill. App.2d 80, 87-88, 243 N.E.2d 40, 45 (2d Dist. 1968).) While summary judgment is an invaluable tool to be utilized in cases having ...

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