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12/12/89 Henry A. Hirschauer Et Al. v. the Chicago Sun-Times

December 12, 1989

HENRY A. HIRSCHAUER ET AL., PLAINTIFFS-APPELLEES

v.

THE CHICAGO SUN-TIMES, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

548 N.E.2d 630, 192 Ill. App. 3d 193, 139 Ill. Dec. 245 1989.IL.1928

Appeal from the Circuit Court of Cook County; the Hon. Robert L. Sklodowski, Judge, presiding.

APPELLATE Judges:

JUSTICE DiVITO delivered the opinion of the court. HARTMAN and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DIVITO

Plaintiffs Henry A. Hirschauer and the Stratford News Agency (collectively News Agency) brought an action to obtain a mandatory injunction forcing defendant-appellant Chicago Sun-Times (the Sun-Times) to continue selling newspapers to News Agency. On May 7, 1988, News Agency obtained an ex parte temporary restraining order forcing the Sun-Times to continue selling newspapers to News Agency. On June 28, 1988, News Agency filed a motion for voluntary dismissal and the Sun-Times filed a motion to dissolve the TRO. The Sun-Times' motion was granted, and the cause was dismissed by an agreed order. The Sun-Times then filed a motion for statutory damages under section 11-110 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 11-110) due to the wrongful issuance of the TRO. That motion was denied, and the Sun-Times brought this appeal.

The issues raised are (1) whether the appeal should be dismissed as untimely on the ground that the Sun-Times failed to appeal from an earlier order denying its motion to dissolve the TRO: and (2) whether the Sun-Times is entitled to damages under section 11 -- 110 of the Code of Civil Procedure resulting from the wrongful issuance of the TRO. We hold that the appeal is not untimely and that the trial court improperly denied the Sun-Times' motion for damages.

The essential facts are not disputed. On Friday, May 6, 1988, the Sun-Times gave News Agency, a wholesale purchaser of newspapers from the Sun-Times for more than 30 years, written notice that it had decided to stop selling newspapers to News Agency, effective Monday, May 9, 1988. In an ex parte proceeding on Saturday, May 7, 1988, without notice to the Sun-Times, News Agency obtained a TRO forcing the Sun-Times to continue selling newspapers to News Agency and directing the parties to appear in court on Monday, May 9, 1988. The Sun-Times first learned of the TRO on Sunday, May 8, 1988. On Monday, May 9, 1988, News Agency filed a complaint for injunctive relief alleging that News Agency purchased and distributed the Sun-Times' newspapers pursuant to an unspecified oral distributorship contract and praying for an injunction forcing the Sun-Times to continue selling newspapers to News Agency. On the same date, both parties appeared in court but the Sun-Times sought a change of venue and the proceedings were rescheduled for the following day.

On Tuesday, May 10, 1988, a hearing was held on the continuance of the TRO. News Agency argued that the Sun-Times should be equitably estopped to refuse to sell newspapers to News Agency without first paying News Agency for the value of its business. The Sun-Times argued that the pleadings failed to state a cause of action either in contract or estoppel and raised as further grounds for dismissal News Agency's failure to give the Sun-Times notice of the TRO motion. The trial court concluded that "[t]here [was] the possibility . . . that the summary termination of [News Agency's] distributorship without compensation create[d] a condition of equitable estoppel which this court of equity would or could enforce through a preliminary injunction" and continued the TRO. Regarding News Agency's failure to give notice, the trial court stated: "You have notice now. If I were to extend it, you have notice. What difference does that make . . ."

On May 19, 1988, the Sun-Times filed an emergency motion to dismiss News Agency's complaint and to dissolve the TRO. The Sun-Times argued again that the complaint failed to state a cause of action either in contract or estoppel and failed to allege that monetary relief was inadequate. News Agency did not respond to the motion. Instead, News Agency filed an amendment to its complaint and argued that the motion to dissolve the TRO had become moot with the filing of the amendment. The amendment to the complaint and accompanying memorandum of law were served on the Sun-Times after the close of business on May 24, 1988.

On May 25, 1988, the hearing was held on the Sun-Times' motion to dismiss the original complaint and first motion to dissolve the TRO. The trial court granted News Agency leave to file its amended complaint instanter, dismissed the original complaint, denied the Sun-Times' motion to dissolve the TRO, and continued the TRO under the amended complaint. The order dismissing the original complaint and denying the motion to dissolve the TRO was entered on June 6, 1988. No appeal from that order was taken.

On June 6, 1988, the Sun-Times filed a motion to dismiss News Agency's amended complaint and a second motion to dissolve the TRO. The Sun-Times argued that the amended complaint, like the original complaint, failed to state a cause of action. No hearing on this motion was ever held. On June 13, 1988, and again on June 21, 1988, News Agency obtained additional time in which to respond to the Sun-Times' motion. On June 28, 1988, News Agency filed an emergency motion for voluntary dismissal. On the same date, the Sun-Times filed a third motion to dissolve the TRO based on the voluntary dismissal. The Sun-Times' motion was granted, and News Agency's motion for voluntary dismissal was continued.

On August 30, 1988, the Sun-Times filed a motion for a finding that the TRO had been wrongfully issued and for damages under section 11 -- 110 of the Code of Civil Procedure. On October 4, 1988, the Sun-Times' motion was denied. The trial Judge ruled that damages were not available either because the TRO was "ancillary" to the permanent injunctive relief sought, or because damages were precluded by News Agency's voluntary dismissal. The trial court also refused to find that the TRO had been wrongfully issued, stating that such a finding "would be inconsistent with [the trial court's] prior rulings." On November 29, 1988, an agreed order was entered dismissing the cause. I

News Agency maintains that the trial court's June 6, 1988, order denying the first motion to dissolve the TRO was a ruling that the TRO was properly granted. Because the Sun-Times did not appeal from that order, News Agency argues, it is the law of the case, barring the Sun-Times from recovering statutory damages. We disagree, reaffirming our earlier ...


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