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Fair Auto. Repair v. Car-x Serv. Systems

OPINION FILED OCTOBER 26, 1984.

FAIR AUTOMOTIVE REPAIR, INC., ET AL., PLAINTIFFS-APPELLANTS,

v.

CAR-X SERVICE SYSTEMS, INC., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 18, 1984.

This is an action between muffler repair chains for interference with business by means of slanderous statements. Plaintiffs filed a motion for a preliminary injunction on the basis of disparaging remarks made by defendants' agents after the case had been filed. Before the hearing on the motion, the motion was dismissed as to individual defendant John Davis. During plaintiffs' presentation at the hearing on the motion, the trial court struck the motion. Plaintiffs appeal both interlocutory orders.

Plaintiffs in this action, Fair Automotive Repair, Inc. (Fair Auto) and Gayle S. Wakefield, are a corporation which operates and franchises muffler shops and that corporation's majority shareholder and chief executive officer. Defendants, Car-X Service Systems, Inc. (Car-X), and John G. Davis, are a corporation which is also in the muffler shop business and one of its employees. Plaintiffs filed a complaint against defendants on February 15, 1983, alleging tortious interference with their business by means of false statements disparaging of plaintiffs made to various persons. Plaintiffs sought both damages and injunctive relief.

Soon after this action was initiated, plaintiffs moved for a temporary restraining order. That motion was denied on March 1, 1983. On November 15, 1983, plaintiffs filed a motion for a preliminary injunction on the basis of allegations that false statements disparaging to plaintiffs by Car-X employees and agents had continued after March 1 to plaintiffs' detriment. On November 22, 1983, the trial court dismissed the motion as to defendant Davis only because there were no allegations of misconduct by Davis personally.

Also on November 22, the trial court denied Car-X's motion to strike plaintiffs' motion. Car-X had argued, in part, that misconduct by plaintiffs warranted application of the "clean hands" doctrine. The misconduct asserted was that of investigators hired by plaintiffs who went to Car-X shops, posed as customers, and made reference to a better estimate for services at a Fair Auto shop. In several instances, the Car-X shop employees responded with disparaging remarks about Fair Auto. The remarks observed by Fair Auto's investigators were those alleged in plaintiffs' motion.

The hearing on plaintiffs' motion began on December 7, 1983. Among the witnesses presented by plaintiffs were four investigators who told of hearing disparaging remarks made by employees of several area Car-X shops against Fair Auto and Gayle Wakefield. The investigatory visits were made after one of the investigators had heard disparaging remarks at a Car-X shop while there as a customer and not as part of any investigation.

On January 12, 1984, during the course of the hearing and prior to the completion of plaintiffs' case, counsel for Car-X represented to the court that two women had appeared at the Car-X shop that morning who were suspected of being more Fair Auto investigators. Counsel characterized this conduct as an "outrageous incident" and "harassment" and requested that plaintiffs agree to cease further visits. Counsel for plaintiffs admitted that two Fair Auto employees had gone to the Aurora shop, but represented there to be good cause and refused to agree to cease the visits unless Car-X agreed to cease making disparaging remarks. The trial court responded by inviting Car-X to reargue its motion to strike plaintiffs' motion. After that argument and response by plaintiffs' counsel, the court granted the motion to strike. Plaintiffs later sought a clarification order which the trial court entered on February 22, 1984. That order stated that plaintiffs' motion was struck because of plaintiffs' "improper conduct," including both the visits by the hired investigators before the motion was filed and the Aurora visit by the Fair Auto employees during the hearing on the motion. The February 22 order did not specify a legal theory for the court's action.

On March 13, 1984, plaintiffs filed a notice of interlocutory appeal from the orders striking their motion for a preliminary injunction and from the order dismissing that motion as to John Davis.

STRIKING OF THE MOTION

A. SUFFICIENCY OF PLAINTIFF'S EVIDENCE.

• 1 The trial court's order striking plaintiff's motion for a preliminary injunction came before plaintiffs completed their case-in-chief. A trial court may not enter judgment for a defendant on the basis of the insufficiency of the plaintiff's evidence until the close of the plaintiff's case. (Ill. Rev. Stat. 1983, ch. 110, par. 2-1110; Scheurer v. Christopher (1967), 82 Ill. App.2d 304 (abstract); Strzelecki v. The Fair (1939), 299 Ill. App. 113, 19 N.E.2d 624.) The trial court explicitly stated that its order was based upon plaintiffs' "improper conduct," not the inadequacy of plaintiffs' evidence. The rule stated here makes it clear that the inadequacy of plaintiffs' evidence cannot serve as an alternative basis to sustain the trial court's order.

B. UNCLEAN HANDS.

Defendants' appellate arguments for sustaining the trial court's decision relate to the supposed impropriety of plaintiffs' conduct in sending investigators to several Car-X shops to determine whether remarks disparaging to Fair Auto were being made to customers. The argument based on plaintiffs' conduct which was emphasized in the ...


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