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Tru-link Fence v. Reuben H. Donnelley Corp.

OPINION FILED FEBRUARY 22, 1982.

TRU-LINK FENCE COMPANY, INC., PLAINTIFF-APPELLANT,

v.

THE REUBEN H. DONNELLEY CORPORATION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT GREEN, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

JUSTICE GOLDBERG delivered the opinion of the court:

Tru-Link Fence Company, Inc. (plaintiff), originally brought this action for injunctive relief against The Reuben H. Donnelley Corporation (Donnelley) and Illinois Bell Telephone Company (Bell). Plaintiff's third amended complaint sought injunctive and additional relief from both defendants and one Stanton Ascher, doing business as Wood and Link Fence Company. Ascher was not served with process. Upon motion of Donnelley and Bell, the trial court dismissed plaintiff's third amended complaint for failure to state a cause of action. Plaintiff appeals.

Some background information is necessary. Donnelley is a publisher of telephone classified directories commonly known as the yellow pages. Donnelley publishes a separate yellow page directory for the suburban communities of the greater Chicago area and names each of these directories for the municipality it serves, e.g., "Winnetka Telephone Directory."

In 1976, Donnelley promulgated a new regulation concerning the advertising content of its suburban directories. The regulation states in effect that if an advertiser uses in its business title the name of the suburban municipality served by a suburban directory and the advertiser does not have a business address within that municipality, the advertiser must list its primary street and city address. This regulation is referred to as the "community name standard."

Count I of plaintiff's third amended complaint alleges defendant Donnelley, by virtue of an "exclusive contract" with Bell, enjoyed a monopoly to publish the yellow pages in the suburban directories. Donnelley had promulgated the community name standard. Bell expressly or impliedly approved these regulations. Bell and Donnelley were under a duty to insure these regulations did not place an unreasonable restraint on trade or commerce particularly in light of Donnelley's "suburban monopoly." Plaintiff further alleged a large number of plaintiff's potential suburban customers believe a business is not able to serve them adequately if its principal place of business is in Chicago. Plaintiff alleged from 1955 to 1976, Donnelley did not require plaintiff or "most" of its other advertisers to comply with the regulation pertaining to the community name standard. In 1976, Donnelley and Bell entered into a "contract, combination or conspiracy" by agreeing to have Donnelley enforce its regulation as to plaintiff but not against "most" other advertisers. Count I concluded this conduct placed an unreasonable restraint on trade or commerce and was wilful and malicious, causing damage to plaintiff for which there was no adequate remedy at law. Plaintiff therefore prayed for injunctive relief against the enforcement of the regulation pursuant to the Illinois Antitrust Act (Ill. Rev. Stat. 1979, ch. 38, par. 60-3(2)).

Count II of the third amended complaint, also against Donnelley and Bell, realleged portions of count I. Plaintiff further alleged Donnelley and Bell were under a duty to insure the advertising regulations did not intentionally interfere with plaintiff's business prospects, particularly in light of the "suburban monopoly." Plaintiff alleged Donnelley and Bell breached this duty by enforcing the address requirement against plaintiff and not against "most" other advertisers. This breach forced plaintiff to comply with the regulation and thereby caused plaintiff to lose large numbers of potential customers. Plaintiff prayed for injunctional and compensatory relief including punitive damages.

Count III realleged portions of count I and alleged defendant Stanton Ascher, doing business as Wood and Link Fence Company, induced Donnelley to interfere intentionally with plaintiff's business prospects by enforcing the community name standard as to plaintiff but not as to "most" other advertisers in order to reduce competition. Plaintiff again prayed for injunctive and compensatory relief in tort.

Count IV sought a declaratory judgment (Ill. Rev. Stat. 1979, ch. 110, par. 57.1) that the community name standard was unreasonable on its face and in its application and contrary to the "public policy" of the State of Illinois.

On January 21, 1981, the trial court dismissed the third amended complaint with prejudice for failure to state a cause of action against the defendants. On February 19, 1981, plaintiff requested the trial court to vacate the dismissal and grant leave to file a fourth amended complaint. On February 20, 1981, plaintiff filed its notice of appeal from the final order of January 21, 1981. On April 9, 1981, the trial court denied plaintiff's request to vacate the dismissal order of January 21, 1981.

In this court, plaintiff contends the trial court erred in dismissing its third amended complaint. Plaintiff argues the third amended complaint properly alleged a cause of action against both defendants.

"On motion to dismiss we accept as true all well-pleaded facts." (Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 329, 371 N.E.2d 634.) We do not, however, accept as true "conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest." (Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App.3d 972, 980, 387 N.E.2d 785.) In People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill.2d 300, 308, the supreme court stated:

"Illinois is a fact-pleading State. This means that although pleadings are to be liberally construed and formal or technical allegations are not necessary, a complaint must, nevertheless, contain facts to state a cause of action. (Ill. Rev. Stat. 1975, ch. 110, par. 31.) Which facts? The complaint is deficient when it fails to allege the facts necessary for the plaintiff to recover. (Fanning v. LeMay (1967), 38 Ill.2d 209, 212.) `But it is a rule of pleading long established, that a pleader is not required to set out his evidence. To the contrary, only the ultimate facts to be proved should be alleged and not the evidentiary facts tending to prove such ultimate facts.' Board of Education v. Kankakee Federation of Teachers Local No. 886 (1970), 46 Ill.2d 439, 446-47.

To pass muster a complaint must state a cause of action in two ways. First, it must be legally sufficient; it must set forth a legally recognized claim as its avenue of recovery. When it fails to do this, there is no recourse at law for the injury alleged, and the complaint must be dismissed. (See, e.g., Ritchey v. Maksin (1978), 71 Ill.2d 470, 475; Pierce v. Carpentier (1960), 20 Ill.2d 526, 530-31.) Second and unlike Federal practice, the complaint must be factually sufficient; it must plead facts which bring the claim within the legally recognized cause ...


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