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People Ex Rel. Scott v. Carriage Way West

OPINION FILED SEPTEMBER 2, 1980.

THE PEOPLE EX REL. WILLIAM J. SCOTT, ATTORNEY GENERAL, PLAINTIFF-APPELLANT,

v.

CARRIAGE WAY WEST, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff, State of Illinois, brought this civil action under the Illinois Antitrust Act (Ill. Rev. Stat. 1975, ch. 38, pars. 60-3(1)a and 60-7(4)) against 23 defendants (18 public golf courses located in and around Cook County, 4 individuals and the Chicagoland Golf Association, Inc.). The State alleged that defendants had conspired to fix, raise and maintain greens fees and golf cart rental rates. On defense motions, the State's complaint was stricken and its cause was later dismissed for want of equity. The State appeals, asserting the sufficiency of its complaint.

The State's complaint alleged that defendants and co-conspirators met from October 1970 continuing through 1975 under the auspices of the Chicagoland Golf Association at various locations in Cook County and at various Association members' places of business. There, defendants agreed upon the greens fees and golf cart rental rates charged to the public. They also established a uniform calendar for winter and summer rates. The complaint further alleged that defendants and co-conspirators not attending the meetings "were informed of the discussions and agreements reached at these meetings by receiving printed minutes prepared by the Secretary of the Association." The State maintained that as a result of this combination and conspiracy fees charged by the Association members have been raised and fixed and that competition has been suppressed.

The State sought a permanent injunction restraining defendants from continuing their combination and conspiracy and the imposition of a $50,000 penalty against each defendant.

Certain defendants filed motions contesting the sufficiency of this complaint pursuant to sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, pars. 45 and 48). On November 4, 1977, the circuit court ordered the complaint stricken for failure to state a cause of action and gave the State leave to file an amended complaint within 60 days. The court found the complaint was defective because "* * * the facts to support the conspiracy allegations should be pleaded, * * * relative — as to what Defendant did what."

Rather than amend its complaint, the State brought a mandamus action in the Illinois Supreme Court. That petition was denied on January 10, 1978. On January 11, 1978, the State moved for leave to file a first amended complaint instanter. The circuit court denied that motion on January 17, 1978, noting that the "plaintiff chose not to file an amended complaint within the 60 days provided by this Court's order of November 4, 1977, but to proceed otherwise."

The State then appealed the circuit court's orders of (1) November 4, 1977, striking the complaint for failure to state a cause of action, and (2) January 17, 1978, denying leave to file a first amended complaint instanter. On August 7, 1978, this court dismissed the State's appeal for lack of a final and appealable order.

On August 28, 1978, certain defendants and the State filed motions in this court to reconsider the dismissal of the appeal. Defendants moved, alternatively, for an order allowing the parties to refile their briefs in the event of any further appeal to this court. On September 6, 1978, we denied all motions to vacate the dismissal of the appeal. However, we ordered that if, on remand, the trial court entered an order final in form, the appeal would be redocketed with a supplemental record and the parties' original briefs submitted to the court.

On October 4, 1978, the State moved the trial court for instructions on how to proceed. On that date the trial court ruled that it had no instructions to give. On November 22, 1978, the State moved this court to reinstate the appeal. We denied this motion for lack of jurisdiction, noting that our mandate had issued on November 1, 1978.

On January 12, 1979, the State filed a motion in the circuit court for leave to file a first amended complaint instanter or, alternatively, for an order of dismissal final in form. On March 8, 1979, the circuit court ordered the State's complaint dismissed with prejudice for want of equity.

The State now appeals from this final order and also renews its appeal of the court's orders of November 4, 1977, and January 17, 1978.

• 1 By bringing a mandamus action challenging the circuit court's striking of its complaint and by failing to file an amended complaint within 60 days, the State elected to stand on its original complaint. Failure to plead over within the time allowed by the trial court operates as an election to stand on the original pleading. (See Campbell v. Harrison (1973), 16 Ill. App.3d 570, 306 N.E.2d 643; Brainerd v. First Lake County National Bank (1971), 1 Ill. App.3d 780, 275 N.E.2d 468.) Having made this election, its attempt to file an amended complaint instanter was, under the circumstances, without legal effect. Accordingly, the dispositive issue upon review is whether the original complaint was properly stricken by the trial court.

The State submits that the complaint at issue was modeled after an antitrust criminal indictment found sufficient in People v. Crawford Distributing Co. (1972), 53 Ill.2d 332, 291 N.E.2d 648. It argues that if the indictment in Crawford was sufficient to withstand the more stringent due process standards of a criminal proceeding, then the instant complaint seeking a civil penalty for violation of the identical section of the Antitrust Act (Ill. Rev. Stat. 1975, ch. 38, par. 60-3(1)(a)) meets the requirement of the Civil Practice Act.

The Crawford indictment is part of our record as an exhibit attached to the State's memorandum in opposition to the motion to dismiss. In that case, seven corporations and six executives of those corporations were charged by indictment with combining and conspiring to fix, control and maintain the price of beer sold at wholesale in Macon County, Illinois. The indictment charged a violation of section ...


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