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Consumers Guild v. Ill. Bell Telephone

OPINION FILED JULY 30, 1981.

CONSUMERS GUILD OF AMERICA, INC., PLAINTIFF-APPELLANT,

v.

ILLINOIS BELL TELEPHONE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. BRIAN B. DUFF, Judge, presiding.

PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 5, 1982.

The principal issue in this case is whether a court has jurisdiction to hear a suit against Illinois Bell Telephone Company for damages for misrepresentations as to the type of service needed. The trial court dismissed holding that it had no jurisdiction. We reverse and remand for trial.

Plaintiff, Consumers Guild of America, Inc., filed a suit on March 7, 1975, against Illinois Bell Telephone Company alleging that defendant held itself out to be an expert in the economical use of telephones and furnished, without tariff charges, services of persons said to be expert in matters relating to the most economical and efficient use of telephones; that plaintiff relied on defendant's expertise; that after plaintiff's request for advice, a man named Matz, represented by defendant to be expert in the economics of utilization of the telephone, appeared at plaintiff's office, inspected its telephone services and advised plaintiff that no change should be made in its method of utilization of its telephone instruments, although Marz was furnished with all the information he requested and knew or should have known defendant offered a service known as "foreign exchange lines"; that plaintiff did not then know of the availability of such lines; that thereafter plaintiff proceeded to operate its telephone room as before, incurring enormous bills; that eight months later another of defendant's experts did advise the installation of foreign exchange lines indicating they would save plaintiff in excess of $4,000 per month; that plaintiff immediately ordered their installation although there was some delay by defendant in effecting the installation; and that plaintiff suffered damages in the amount of $35,534.45.

A motion to dismiss under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 48) because primary jurisdiction was in the Illinois Power Commission was denied by Judge Ben Schwartz on September 17, 1975. Thereafter matters proceeded toward trial. However, immediately before trial, the same motion was renewed and this time it was granted by Judge Brian Duff. The plaintiff has appealed, contending both that the trial judge erred in reconsidering a motion already considered and denied by another judge and in holding that the Illinois Commerce Commission had primary jurisdiction.

I

• 1 The plaintiff's contention that Judge Duff erred in reconsidering a motion already ruled on by Judge Schwartz is without merit. As was held in Towns v. Yellow Cab Co. (1978), 73 Ill.2d 113, 120-21, 382 N.E.2d 1217, 1220:

"In the instant case, however, the finding by the motion judge was not a judgment. It did not settle or finalize any rights between the parties. A preliminary matter, that is, the sufficiency of the defendant's defense, was considered and rejected, but this did not dispose of a separate claim between the parties. * * * Under the facts of the instant case the finding could have only resulted in a judgment if the defendant had chosen to stand on his pleadings, prompting the eventual entry of a judgment by default. That, however, is not the case.

Clearly, the finding by the motion judge was in the nature of an interlocutory order. As we have indicated, courts> have the inherent power to amend and revise such orders at any time before final judgment. (49 C.J.S. Judgments sec. 230 (1947); 23 Ill. L. & Prac. Judgments sec. 308 (1956).) For example, in Leopold v. Levin (1970), 45 Ill.2d 434, a second trial court vacated a summary judgment order which had been entered for plaintiff by the first trial court. In affirming the authority of the second trial court to vacate the summary judgment order, this court noted that summary judgments on the issue of liability only under section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 57(3)) are interlocutory in character and that `interlocutory order[s] may be modified or vacated at any time before final judgment' (45 Ill.2d 434, 446).

In the instant case, the trial court had jurisdiction over the entire controversy, and would retain jurisdiction until final judgment. While prior rulings should be vacated or amended only after careful consideration, especially if there is evidence of `judge shopping' on behalf of one who has obtained an adverse ruling, a court is not bound by an order of a previous judge (Richichi v. City of Chicago (1964), 49 Ill. App.2d 320) and has the power to correct orders which it considers to be erroneous. Here, the cause was assigned to the second judge as a matter of procedure. The defendant could properly renew his motion, even though it had been denied by another judge, and the pretrial judge, in turn, could review and modify the first judge's interlocutory order."

II

We believe, however, that Judge Duff erred in ruling that the trial court had no jurisdiction to consider the case.

Illinois Bell Telephone Co., being a public utility, is governed by the Public Utilities Act. (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 1 et seq.) Section 72 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 76), provides in part that:

"When complaint has been made to the Commission concerning any rate or other charge of public utility and the Commission has found, after a hearing, that the public utility has charged an excessive or unjustly discriminatory amount for its product, commodity or service, the Commission may order that the public utility make due reparation to the complainant therefor, with interest ...


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