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Jam Prod., Ltd. v. Dominick's Finer Foods

OPINION FILED DECEMBER 12, 1983.

JAM PRODUCTIONS, LTD., PLAINTIFF-APPELLEE,

v.

DOMINICK'S FINER FOODS, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. Lawrence D. Inglis, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Plaintiff, Jam Productions, Ltd., instituted this breach of contract action against defendant, Dominick's Finer Foods, Inc., in the circuit court of Lake County, Illinois. These parties are also involved in a class action suit involving the same general subject matter, pending in the circuit court of Cook County, Illinois. Defendant moved the circuit court of Lake County to stay those proceedings, pending the resolution of the Cook County class action. That motion was denied. Defendant now appeals pursuant to Supreme Court Rule 307 (87 Ill.2d R. 307). We reverse.

The parties to this appeal, together with Field Communications Corp., Southland Corp., Convenient Food Marts, Inc., 3-D Video Corp., and certain other individuals were involved in a promotion to air a 1955 movie entitled "Revenge of the Creature" in a newly-developed "3-D" format for television. The show was to be broadcast on WFLD — Channel 32 TV on July 29, 1982. Various chain stores, including the defendant, contracted to distribute special 3-D viewing glasses supplied by plaintiff. Plaintiff contracted to provide the defendant with 3-D glasses "suitable" for use in viewing "Revenge of the Creature." Distributing stores, including the defendant, publicly promoted the airing of the "Creature" through various advertising media.

On the day following the airing of "Revenge of the Creature," parties who had purchased 3-D glasses from the defendant and others sought their own form of revenge, though the vehicle of a class action suit filed in the circuit court of Cook County (the Harris action). The plaintiff was not named as a party defendant in the Harris action.

The defendants in the Harris action were charged with breach of express warranty, breach of implied warranty, fraud, breach of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121 1/2, par. 262), and the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1981, ch. 121 1/2, par. 311 et seq.) The alleged underlying factual basis for all of these counts was that the 3-D glasses supplied by the defendant and the other distributors did not perform as had been warranted. Apparently, the "Creature" did not appear in 3-D, much to the displeasure and disappointment of class members.

It was alleged in the defendant's pleadings (and it is now not disputed by the parties), that the defendant notified the plaintiff of the pendency of the Harris action four days after it was filed, pursuant to section 2-607(5)(a) of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2-607(5)(a)). The plaintiff declined to assume the defense of that lawsuit.

On November 3, 1982, the plaintiff filed the instant breach of contract action against the defendant in the circuit court of Lake County. The defendant appeared and moved for a stay of proceedings on December 3, 1982. After the cause was transferred to another judge (on plaintiff's motion), the defendant refiled its motion for a stay before Judge Harry D. Strouse, Jr. That motion, as it stood before Judge Strouse, alleged that the defendant had moved for leave to file a third-party complaint against the plaintiff in the Harris action, which third-party complaint involved substantially the same subject matter as was then before the Lake County circuit court. Judge Strouse denied the motion for stay. The defendant thereafter answered the plaintiff's complaint.

The defendant filed a third motion for stay before Judge Strouse on February 7, 1983. This motion alleged that the defendant had been granted leave to file its third-party complaint against the plaintiff in the Harris action, and that the plaintiff had become impleaded in that suit. Following a series of continuances, the defendant again filed a copy of its motion for stay in the circuit court on March 23, 1983.

The matter was thereafter continued twice more. Then, the cause was transferred (on defendant's motion) to be heard by Judge Lawrence D. Inglis.

Following that transfer, yet another incarnation of the defendant's motion for stay was filed on May 5, 1983. This motion had grown to become 56 pages in length, including exhibits.

The circuit court denied the defendant's motion for stay on May 19, 1983. The circuit court found that the defendant's motion for stay had been filed on five separate dates, and that its repeated filing had placed "a burden on the court system." The court observed that another judge had denied the defendant's motion for stay on December 20, 1982, and that there was "no showing of a change in circumstances since the last ruling."

The circuit court found that the defendant, through its repeated filing of its motion for stay, had delayed the litigation from December 3, 1982, until the date of its ruling (May 19, 1983). The circuit court concluded that "as a result of plaintiff's [sic] action there has been an effective stay for a reasonable length of time in Lake County and this matter should not be delayed further without significant advancement of the matter filed in Cook County." This appeal ensued.

Two issues are presented:

1. Whether the circuit court abused its discretion when it denied the defendant's motion for a stay of proceedings pending the resolution of a similar suit involving the ...


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