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Midland Hotel Corp. v. R.h. Donnelley Corp.

OPINION FILED SEPTEMBER 23, 1986.

MIDLAND HOTEL CORPORATION, PLAINTIFF-APPELLEE,

v.

THE REUBEN H. DONNELLEY CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. James S. Quinlan, Jr., Judge, presiding.

JUSTICE SCARIANO DELIVERED THE OPINION OF THE COURT:

Defendant, The Reuben H. Donnelley Corporation, appeals from a $500,000 verdict and judgment rendered against it in a breach of oral-contract action brought by plaintiff, Midland Hotel Corporation. The award was based on plaintiff's asserted loss of profits caused by defendant's failure to include it under the "Hotels" listing of its 1981 Visitors Guide.

Defendant issued its first Chicago Visitors Guide and Downtown Directory in July 1981. The Guide was designed for tourists and business travelers and was divided into two sections, the first containing information regarding dining, shopping, entertainment, lodging, and points of interest, together with maps of the city, and the second, similar to the well-known "Yellow Pages," containing telephone listings of businesses in the downtown area from Roosevelt Road to Oak Street and as far west as Clinton Street. Defendant intended to earn money from the Guide through paid advertising, with ad rates directly proportional to the breadth of distribution. In its brochure to prospective advertisers, defendant described its distribution as 160,000 copies, with half of them going to hotels. Defendant distributed the Guide by (1) hiring its own distributors, (2) entering into contracts with downtown hotels for placement through their concierges and in-room replacement by maid services, and (3) providing copies to the Chicago Convention & Tourism Bureau.

Myron S. Levy, plaintiff's executive vice-president and general manager, testified that he met with a representative of defendant in early 1981 who told him that Midland would have the "appropriate listing" under the "appropriate" classifications in the Guide. However, when the 1981 Visitors Guide was released, plaintiff was not listed under the "Hotels" heading in the "Yellow Pages" portion of the Guide, although plaintiff was included under "Banquet Rooms." In the Guides to be distributed in its hotel, Midland did receive a back-page advertisement.

In the 1982 Visitors Guide, plaintiff did have a regular listing under "Hotels," two listings under the "Restaurant" heading, and a listing under "Banquet Rooms," which for an extra fee was printed in boldface. Plaintiff did not otherwise purchase advertising in the 1981, 1982 or 1983 Guides.

After discussions with defendant broke down, plaintiff filed suit to recover lost net profits caused by the alleged breach of contract. In its answer to plaintiff's complaint, defendant pleaded Midland's failure to mitigate damages as an affirmative defense. The trial court dismissed this defense at the close of the evidence. In response to a special interrogatory, the jury found that defendant had a contract with plaintiff entitling plaintiff to multiple listings in the 1981 Guide. The jury also found that defendant had breached this contract, and awarded damages of $500,000. The trial court entered judgment on the verdict and denied defendant's motion for judgment n.o.v. This appeal followed.

Plaintiff has made a motion to strike the statement of facts in defendant's appellate brief, which this court ordered taken with the case. Supreme Court Rule 341 provides in relevant part:

"(e) Appellant's Brief. The appellant's brief shall contain the following parts in the order named:

(6) Statement of Facts, which shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal." (Emphasis added.) (103 Ill.2d R. 341(e)(6).)

It is difficult to imagine a more argumentative statement of facts than the one that defendant has provided. After the first two sentences identifying the Midland Hotel, defendant states, without citation to the record, "During the period from July, 1979 to July, 1984, the Midland suffered sustained losses in its business." Defendant proceeds to discuss its theory of Midland's business troubles without mentioning the Chicago Visitors Guide, on which this suit is based, until page 7. Defendant devotes only 4 pages, of its 15-page statement of facts, to the testimony about the oral agreement on which this suit is based, an explanation of the 1981 Visitors Guide, and the jury verdict and post-trial motions. The rest of the statement of facts contains graphs and statistics calculated to show that Midland has been an unsuccessful business without regard to the existence of the Visitors Guide. Supreme Court Rule 341(e)(6) provides that the statement of facts "shall contain the facts necessary to an understanding of the case" (103 Ill.2d 4. 341(e)(6)), but, far from promoting understanding, defendant's statement only generates confusion and taxes the patience of the court. It is clearly an attempt to prejudice this court against plaintiff's theory of damages, rather than present the facts "accurately and fairly without argument or comment" as required by the rule.

• 1 In the statement of facts, attorneys can properly present evidence that is favorable to their clients but not at the cost of this court's understanding of the case — in the hope that obfuscation, selection, and premature argument can persuade appellate judges to reach conclusions rejected by a trier of fact presented with all of the evidence. Zealous representation is encouraged, and vigorous argument should be applauded when located in the appropriate place where it can be supported by citation of authority (see 103 Ill.2d R. 341(e)(7)), but attorneys are also officers of the court and have an obligation to follow rules designed to assist this court in its task. When attorneys set out to win cases, not by argument designated as such, but by editorial comment, coloration, and querulousness in the statement of facts, it not only manifests disrespect for the intelligence of the court, but serves to obscure rather than enlighten and needlessly makes this court's job more difficult.

• 2 Having said this, it would appear to be anticlimactic to deny plaintiff's motion to strike, yet we hereby do so. The courts of this State have been reluctant to impose the sanction of striking portions a brief, even in cases of blatant violations. (See Harper v. Kennedy (1958), 15 Ill.2d 46, 55, 153 N.E.2d 801, 806 (statement of facts replete with argument and conclusions); People v. Madden (1977), 52 Ill. App.3d 951, 970, 368 N.E.2d 384, 399 (argumentative); People v. Williams (1967), 86 Ill. App.2d 209, 214, 229 N.E.2d 158, 160-61 ("[T]he appellee's statement of facts is neither objective nor without comment. Rather he divests himself of his inventory of adjectives").) Of course, an improper practice cannot be excused simply because it is widespread, and at some point this court will be forced to impose sanctions to prevent Supreme Court Rule 341(e)(6) from becoming simply a "pretend-rule" or "purely ceremonial." (Cf. People v. Townsend (1985) 136 Ill. App.3d 385, 418, 483 N.E. 340, 362 (Pincham, J., dissenting) (quoting United States v. Antonelli Fireworks Co. (2d Cir. 1946), 155 F.2d 631, 661-63, cert. denied (1946), 329 U.S. 742, 91 L.Ed.2d 640, 67 S.Ct. 49).) However, we view the preceding chastisement and warning to be sufficient sanction at this time, and now proceed to consider the merits of this case.

• 3 At trial, defendant essentially conceded in its opening statement to the jury that it had a contract with each hotel that participated in its distribution program. Defendant first argues, however, that no contract breach was proved in this case because there was no "credible" evidence that it agreed to provide more than the single listing that plaintiff received. Defendant submitted the following special interrogatory, which was tendered to the jury:

"Was there a contract between plaintiff and defendant which entitled plaintiff to more than one business heading in the Chicago Visitor's Guide?"

The jury answered "Yes." Nonetheless, defendant's brief seems geared towards getting this court to reevaluate the evidence and retry the case. Defendant makes only vague reference to a standard of review, stating six pages into its argument, "A verdict is entitled to deference" — but this is clearly a gross understatement, for it is horn-book law that a special verdict can be overcome on appeal only where it is contrary to the manifest weight of the evidence, which requires that an opposite conclusion be clearly evident. (Kristensen v. Gerhardt F. Meyne Co. (1982), 104 Ill. App.3d 1075, 1080, 433 N.E.2d 1050, 1053; Linde v. Welch (1981), 95 Ill. App.3d 581, 583-84, 420 N.E.2d 490, 492-93.) Defendant has failed to show that the special verdict in this case should be overturned by this court under this standard.

Defendant contends, for example, that the jury was mistaken as to the terms of the contract, and notes that Earl Polisky, Donnelley's district sales manager, testified that he visited the Midland Hotel and spoke to Levy. Polisky further testified that Levy agreed ...


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