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Perlman v. Time

OPINION FILED MAY 17, 1985.

STUART D. PERLMAN, PLAINTIFF-APPELLANT AND RESPONDENT-APPELLEE AND CROSS-APPELLANT,

v.

TIME, INCORPORATED, DEFENDANT-APPELLEE AND PETITIONER-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding.

PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Stuart Perlman, brought this action for damages and equitable relief on behalf of himself and others similarly situated whose Life magazine subscriptions were unexpired when defendant, Time, Inc. (Time), terminated publication of Life in 1972. We previously reviewed this case on plaintiff's appeal from entry of summary judgment in favor of Time. We reversed and remanded, holding that summary judgment was a particularly inappropriate and incorrect remedy. (Perlman v. Time, Inc. (1978), 64 Ill. App.3d 190, 380 N.E.2d 1040.) On this appeal, plaintiff contends that the trial court erred in: (1) refusing to reopen proofs for submission of plaintiff's request to admit facts and Time's answer to the request after plaintiff rested; (2) granting Time's motion for a directed finding at the close of plaintiff's case; (3) refusing to include nonresidents in the class without individual notice; (4) decertifying the class of Illinois residents; and (5) making objectionable comments concerning plaintiff's counsel. Time cross-appeals, contending that the court erred in denying its motion for expenses and attorney fees. We affirm.

The facts are as follows. Plaintiff renewed his subscription to Life magazine in September 1972, contracting for 78 issues for which he paid $11.95 in advance. When the final issue of Life was published on December 29, 1972, plaintiff had received 18 of the 78 issues of Life for which he had contracted and paid. Time sent plaintiff a solicitation letter offering him a choice of a cash refund or a substitute subscription to any one of 29 magazines in place of the unfulfilled portion of his Life subscription. Time's letter stated in part that, "[a]ll choices, of course, offer you full value for the remaining portion of your Life subscription." Plaintiff chose to receive Time magazine. He received 43 issues of Time in substitution for the 60 issues of Life.

Plaintiff's Time subscription expired in June 1974. In November 1974, plaintiff wrote Time that he should have about eight months remaining on his subscription. Time responded that the 43 issues of Time represented full credit for the unfulfilled portion of his Life subscription. When plaintiff again complained that he had not received full credit, Time informed him that the number of Time issues due was determined by a "basic-to-basic" conversion formula advocated by the Audit Bureau of Circulations (ABC). The ABC periodically certifies the paid circulation of magazines to determine appropriate advertising rates. The "basic" rate is the highest price at which subscriptions are sold. The basic annual subscription rate for Life was $10 and for Time was $14. By dividing the basic rate for Life by the basic rate for Time, it was determined that plaintiff was due 43 issues of Time.

In 1975, plaintiff brought this action against Time on his own behalf and on behalf of all others similarly situated, claiming that he had not received the "full value" promised for his Life subscription. The class consisted of an estimated 800,000 persons. Plaintiff alleged common law fraud, unjust enrichment, a violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1971, ch. 121 1/2, par. 262), and breach of contract.

On June 19, 1981, the trial court found that all of the requirements of the class action statute (Ill. Rev. Stat. 1979, ch. 110, par. 57.2) were satisfied. The court certified a class of former Life subscribers who had received Time magazine in substitution for their unexpired Life magazine subscriptions. Because the court believed that due process required individual notice to all class members and because of the plaintiff's unwillingness to undertake sending individual notice to all class members, the court declined to certify a nationwide class. A class comprised of Illinois residents was certified.

On April 26, 1983, the first day of trial, the trial court granted Time's motion to decertify the class of Illinois residents. Plaintiff's motion to expand the class was denied. The primary reason given for the class decertification was plaintiff's failure to notify the class members. The court also stated that the suit was not an appropriate method for the fair and efficient adjudication of the controversy.

At trial, the case proceeded on the individual claims of the plaintiff and not as a class action. Plaintiff only pursued his claims based on breach of contract and the Consumer Fraud Act. Kelso Sutton, vice-president and corporate circulation director for Time in 1972, was called as an adverse witness. He testified that during that year Life sold for 50 cents a copy at newsstands. Time sold for about 60 cents at newsstands. As circulation director, he was responsible for filing ABC statements. At the end of 1972, the ABC statement reflected that Life's basic rate was $10 a year and that Time's basic rate was $14 a year. Due to poor market conditions, Time sold for less than the basic rate during the last half of 1972. Most of these subscriptions for less than the basic rate were special introductory offers rather than renewal subscriptions. Sutton first heard that Time was considering terminating publication of Life in the second quarter of 1972. The decision to cease publication was not made until November of that year. Prior to issuing the solicitation letter to Life subscribers, Time consulted with the Federal Trade Commission (FTC). The FTC insisted that a full range of alternative magazines be offered to Life subscribers. With so many alternative magazines being offered, each with a different copy rate, Time decided that it was impossible to use an issue-for-issue conversion formula. Under these circumstances, Time used the basic-to-basic conversion formula which is the standard practice in the industry. The idea of informing subscribers of the number of issues they would receive using the basic-to-basic formula never occurred to anyone at Time.

Bruce Barnett, circulation director of Life magazine in 1972, called as an adverse witness, testified that the average copy rate for Life subscriptions during the last six months of 1972 was approximately 16 cents for new subscriptions and approximately 15 cents for renewal subscriptions. Life sold for 50 cents at newsstands in 1972. Referring to the ABC statement for the six-month period ending in December 1972, Barnett stated that Time's price at newsstands was 50 cents.

Dan Erin, a computer expert, also called as an adverse witness, testified that the number of issues of the alternative magazines each Life subscriber would receive could easily have been programmed into the computer and included in the solicitation letter. Indicating how many issues were remaining could have been done at a small additional cost and would have had no impact on the amount of time required to prepare the mailing to subscribers.

After plaintiff rested, he offered into evidence his request to admit facts and Time's answer to that request. Plaintiff's request stated that during the period September 1, 1972, through December 31, 1972, the average subscription price per copy of Life magazine was more than 90% of the average subscription price per copy of Time magazine. Time's answer to plaintiff's request admitted this fact. The trial court sustained Time's objection to the admission of the request and answer into evidence. At the close of plaintiff's case, Time moved for a directed finding. The motion was granted. Plaintiff appeals.

OPINION

• 1 We first address the issue of whether the trial court erred in refusing to reopen proofs to admit plaintiff's additional evidence. Plaintiff contends that Time admitted in its answer to plaintiff's request to admit facts that Life was worth more than 90% of Time. Plaintiff maintains that the trial court should have reopened the case for the admission of this evidence which plaintiff offered after resting his case. The reopening of proofs is a matter within the sound discretion of the trial court. (Harper v. Johnson (1978), 61 Ill. App.3d 190, 193, 377 N.E.2d 1288.) Because plaintiff did not provide the court with a reasonable excuse for his failure to submit this evidence during trial, we find that the trial court did not abuse its discretion in refusing to admit this evidence. Compare Western Transportation Co. v. Republic Molding Corp. (1982), 104 Ill. App.3d 1081, 433 N.E.2d 1060 (no reasonable excuse for failure to submit additional evidence during trial), with Harper v. Johnson (1978), 61 Ill. App.3d 190, 377 N.E.2d 1288 (bank's refusal to give original cashier's check to plaintiff was reasonable excuse for failure to produce the original).

• 2 Even assuming the trial court incorrectly refused to reopen the case, plaintiff waived his right to rely on Time's admission. If a party introduces evidence as to a fact contained in a request to admit, he waives the right to rely on the other party's admission. (People ex rel. Fahner v. American Buyers Club, Inc. (1983), 115 Ill. App.3d 759, 761, 450 N.E.2d 904.) Here, after Time's admission, plaintiff proceeded ...


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