Appeal from the Circuit Court of Lake County; the Hon. John L.
Hughes, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Plaintiff Outboard Marine Corporation's (hereafter OMC) Galesburg-based product group, Lawn-Boy, contracted with defendant James Chisholm & Sons, Inc. (Chisholm), whereby Chisholm agreed to distribute Lawn-Boy mowers in eight northern Illinois counties and Lake and Porter counties in Indiana. Unless terminated sooner by either party, the agreement specified it would expire on June 30, 1981.
In its complaint for declaratory judgment, OMC alleged Chisholm refused to acknowledge the stated termination date, refused to acknowledge a second, allegedly mutually agreed upon termination date, October 16, 1981, and also refused to acknowledge a termination date of February 20, 1982, pursuant to OMC's written 90-day notice served on Chisholm on November 20, 1981. OMC alleged in the alternative that Chisholm "claims and continues to claim that a valid Distributorship Agreement exists * * * and that said Distributorship Agreement is still in full force and effect" or that "the aforesaid Distributorship Agreement was wrongfully terminated by the plaintiff OMC."
An alias summons was served on defendant's vice-president and secretary, Roger Chisholm, in Deerfield, Lake County, at 5:40 p.m. on September 23. On that same day in Knox County, Chisholm filed suit against OMC alleging breach of the 1981 Distributorship Agreement and interference with contractual relationships and prospective economic advantage. Chisholm's subsequent attempt to have OMC's declaratory judgment action dismissed under section 2-619 of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2-619) and forum non conveniens or to have venue transferred from Lake to Knox County was denied, and Chisholm was allowed 28 days to answer. Chisholm's suit filed against OMC in Knox County was transferred to Lake County. The suit was refiled in Lake County on or about March 1, 1983, and assigned trial No. 83 L 151.
Chisholm filed a motion to strike and dismiss OMC's complaint for declaratory judgment under section 2-615 of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2-615). Therein Chisholm alleged it did not claim that the agreement "still exists or is in full force and effect," and that it claimed the agreement was breached and wrongfully terminated by plaintiff OMC no later than February 20, 1982. Shortly after Chisholm filed that motion, it filed for bankruptcy, and an automatic stay of the instant cause was entered. OMC was successful in its efforts to have the stay lifted.
Before proceedings on the declaratory judgment action were resumed, Chisholm filed a motion to dismiss under section 2-619, alleging OMC's action had become moot by reason of changed circumstances, and that there was another action pending between the parties on the same matter in the same circuit; i.e., Chisholm's breach of contract suit which had been transferred to Lake County from Knox County. Chisholm's counsel's affidavit, which was appended to the motion to dismiss, alleged OMC had answered in the transferred breach of contract suit, had moved for summary judgment, and that the court had heard arguments of counsel and had taken the matter under advisement. Pending that decision, Chisholm was given leave to file an amended complaint against OMC charging it with negligent misrepresentation, wilful misrepresentation and fraud. OMC moved to strike, arguments were heard, and the matter was taken under advisement along with OMC's motion for summary judgment. By reason of the foregoing status of the transferred breach of contract suit, Chisholm's counsel alleged in the motion to dismiss that all possible issues which might have been raised in connection with OMC's suit for declaratory judgment had been effectively raised and briefed in Chisholm's breach of contract suit, and the relief requested by OMC's declaratory judgment suit would necessarily be provided by the forthcoming judgment in Chisholm's suit.
Chisholm's motion to dismiss under section 2-619 was granted, but later vacated upon OMC's motion. The order vacating the section 2-619 dismissal recited that it was entered in error and, instead, the basis for the order was Chisholm's previously filed motion to strike and dismiss under section 2-615. The order reflects the court's opinion that OMC was seeking judgment not for a declaration of its rights, but rather on a claim which had already arisen between the parties; consequently, the court found the issue in the instant cause was not properly within the scope of declaratory judgment and could be adjudicated more fully in Chisholm's suit for damages.
OMC timely appealed and raises this sole issue:
Whether it was an abuse of the court's discretion to refuse to entertain plaintiff's complaint for declaratory judgment by granting defendant's 2-615 motion to dismiss where the complaint sufficiently stated a cause of action for declaratory judgment.
• 1 Plaintiff argues the court had no discretion to refuse to entertain its motion for declaratory judgment where the motion properly stated a cause of action, citing Alderman Drugs, Inc. v. Metropolitan Life Insurance Co. (1979), 79 Ill. App.3d 799, and Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App.3d 296. In general, plaintiff's assertion is correct. A complaint for declaratory judgment which recites in sufficient detail an actual and legal controversy between the parties and prays for a declaration of rights and, if desired, other legal relief, states facts sufficient to state a cause of action (Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App.3d 296), and although the court has discretion to grant declaratory relief, it has no discretion to refuse to entertain the action as against a motion to dismiss where the complaint states a cause of action. (Alderman Drugs, Inc. v. Metropolitan Life Insurance Co. (1979), 79 Ill. App.3d 799.) The courts have recognized a clear distinction between the trial court's discretionary power to refuse to grant declaratory judgment even though the statute would permit a judgment under the facts, and its refusal to entertain the action as against a motion to dismiss where the complaint states a cause of action. Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App.3d 296, 301.
Section 2-701(a) of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2-701(a)) provides in part:
"The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments * * *."
In commenting on the interpretation given that discretion in section 57.1 of the Civil Practice Act (the prior codification of section 2-701), it has been stated that:
"The discretion is not one to entertain the action but to enter or decline to enter the judgment or decree. [Citations.]" Meyer v. County of ...