Appeal from the Circuit Court of Cook County. The Honorable Edwin M. Berman, Judge Presiding.
Giannis, McNAMARA, Rakowski
The opinion of the court was delivered by: Giannis
JUSTICE GIANNIS delivered the opinion of the court:
Plaintiff instituted this action against defendants, Caterpillar, Inc. (Caterpillar), and Patten Industries, Inc. (Patten), alleging violations of the Illinois Antitrust Act (Ill. Rev. Stat. 1989, ch. 38, par. 60-1 et seq., now codified at 740 ILCS 10/1 et seq.) and claiming tortious interference with contractual relations or with prospective economic advantage. Plaintiff sought injunctive relief in addition to compensatory and punitive damages. During the pendency of the litigation, defendant Patten was dismissed from the case pursuant to a stipulation between plaintiff and Patten. The trial court granted summary judgment in favor of defendant Caterpillar, finding that plaintiff had failed to raise a genuine issue of material fact as to each element of the claims asserted. Plaintiff challenges the court's grant of summary judgment and raises the following 12 issues for review: (1) whether the trial court erred in granting defendant summary judgment based upon defendant's affidavits in support of the motion and based upon the limited discovery conducted by the plaintiff, (2) whether the dual distribution arrangement by Caterpillar should be treated as a per se antitrust violation, (3) whether the restraints imposed by Caterpillar's policy were horizontal and should have been treated as per se violations, (4) whether the plaintiff raised a genuine issue of material fact as to a conspiracy between Caterpillar and its dealers, (5) whetherplaintiff presented sufficient evidence to prove an antitrust violation under the rule of reason, (6) whether plaintiff presented sufficient evidence as to a relevant market, (7) whether plaintiff presented sufficient evidence as to Caterpillar's market power within the relevant market, (8) whether the export policy had anticompetitive or exclusionary effects, (9) whether the export policy was reasonably necessary to achieve a legitimate procompetitive purpose, (10) whether plaintiff presented sufficient evidence of an antitrust injury, (11) whether plaintiff presented sufficient evidence to establish its monopolization claims, and (12) whether the trial court erred in granting summary judgment on plaintiff's claims of tortious interference with contractual relations or with prospective economic advantage.
The record reveals that Caterpillar designs, manufactures, and distributes large, sophisticated construction and earth-moving equipment. Caterpillar also sells replacement parts for use in maintenance and repair of its large equipment. Some of these parts are manufactured by Caterpillar, and others are manufactured by outside firms to Caterpillar's specifications. Many of these parts are protected by patents, and most others are unique, having no interchangeable substitute. Caterpillar distributes its replacement parts to overseas consumers through its domestic authorized dealers and through Caterpillar Export Services (CES), a branch of Caterpillar which was created in 1990 as a component of the implementation of Caterpillar's 1982 export parts policy. Caterpillar's authorized overseas dealers provide service as well as sales of parts and compete directly with the customers of the plaintiff for service of Caterpillar equipment requiring replacement parts.
Plaintiff, an Illinois corporation, is in the business of exporting replacement parts for use in heavy equipment, including Caterpillar equipment. Plaintiff buys parts from domestic sources and sells them to overseas firms which service and repair heavy equipment made by Caterpillar and other equipment manufacturers. Plaintiff also exports parts to consumers who service their own equipment. Plaintiff does not provide service of any equipment, but functions only as an independent exporter of parts to independent dealers and to consumers who do their own service. Plaintiff has previously sold parts at prices which were lower than those charged by authorized overseas dealers and has been able to deliver parts more quickly than authorized overseas dealers. Plaintiff and other independent resellers were engaged in parts export prior to 1982.
In 1982, Caterpillar instituted an export policy which prohibited sales of parts by authorized domestic dealers to other resellers for export from the United States. This policy did not in any way limit the sale of replacement parts to consumers by Caterpillar's authorizeddealers. Those dealers were free to sell replacement parts for use outside their service territories, including overseas. The export policy was communicated to Caterpillar dealers in a letter which also stated that the failure to comply with the policy would be regarded as a deliberate violation of the dealership agreement with Caterpillar and could lead to termination.
In 1990, Caterpillar reaffirmed the 1982 policy and instituted detailed implementation guidelines, including (1) the publication and circulation of a list of independent parts exporters as a means of identifying unauthorized resellers overseas, (2) elimination of 60% of the dealer discount to domestic dealers on sales of parts intended for export, (3) formation of CES to solicit and sell directly to large overseas accounts and to process all export parts orders, (4) guidelines governing limited sales of parts for export to exclusive purchasing agents (independent resellers who were permitted to resell directly to consumers whose identities were disclosed to Caterpillar), and (5) requiring that dealers provide CES with detailed information on all orders and on the firms placing the orders.
Plaintiff, who had purchased parts from Patten prior to 1990, was included on the list of resellers. In September 1990, a Caterpillar representative discovered that plaintiff was purchasing parts from Patten. On September 7, 1990, Patten informed plaintiff that it had been ordered to discontinue its sales of Caterpillar replacement parts to plaintiff. During September 1990, representatives of plaintiff, Patten, and Caterpillar met to discuss the import of the 1990 export parts policy. Caterpillar persisted in the enforcement of the export parts policy, and since that time, plaintiff has been unable to purchase Caterpillar parts from Patten or other authorized dealers and has relied upon indirect sources for Caterpillar parts. As a result, plaintiff has paid a higher price than that previously paid to Patten and has experienced delays in obtaining parts.
Plaintiff filed suit, claiming that the 1990 parts policy constituted antitrust violations and amounted to tortious interference with plaintiff's business relations. Plaintiff sought injunctive relief as well as compensatory and punitive damages. Defendants Caterpillar and Patten filed a joint motion to dismiss or, in the alternative, for summary judgment. The trial court denied the request for dismissal but granted summary judgment in favor of defendants. Patten was subsequently dismissed from the case pursuant to a stipulation with plaintiff.
Plaintiff filed a motion for reconsideration which was denied by the trial court, and plaintiff has appealed.
We initially consider plaintiff's assertion that the trial courterred in granting defendant summary judgment based upon defendant's affidavits in support of the motion and based upon the limited discovery conducted by the plaintiff.
Plaintiff claims that the trial court should not have granted summary judgment because the affidavits submitted by Caterpillar contained conclusory, hearsay, and undocumented declarations by Caterpillar employees without a showing of personal knowledge. Specifically, plaintiff challenged paragraphs 2, 3, 6, 7, 9, 10, 11, 12, and 13 of the affidavit of Pat R. Dalton; paragraphs 3 and 4 of the affidavit of William F. Springer; and the entire affidavit of James F. Jolly. Plaintiff moved to strike these portions of the affidavits, contending that they did not comply with the requirements set forth in Supreme Court Rule 191(a) (134 Ill. 2d R. 191(a)). Although the arguments for striking the challenged portions of the affidavits were presented at the hearing held June 12, 1991, plaintiff did not obtain a ruling on this motion.
The failure to enter a ruling on a motion is not equivalent to a denial of the motion ( Veterans Travel Club v. Illinois Commerce Comm'n (1973), 15 Ill. App. 3d 116, 119, 303 N.E.2d 142), and a party who has filed a motion seeking certain relief from the court is obligated to obtain a ruling on that motion ( Fulford v. O'Connor (1954), 3 Ill. 2d 490, 501-02, 121 N.E.2d 767). When a party moves to strike an affidavit which has been filed in support of a motion for summary judgment, it is that party's duty to bring his motion to the attention of the trial court and to get a ruling on the motion, and the failure to obtain such a ruling will operate as a waiver of the objections to the affidavit. King v. Linemaster Switch Corp. (1992), 238 Ill. App. 3d 729, 731, 606 N.E.2d 584, 179 Ill. Dec. 752; McBride v. Commercial Bank (1981), 101 Ill. App. 3d 760, 763, 428 N.E.2d 739, 57 Ill. Dec. 189.
In the instant case, plaintiff failed to obtain a ruling on its motion to strike. Consequently, plaintiff has waived the right to argue on appeal that the trial court should not have considered the affidavits submitted by Caterpillar.
Plaintiff also asserts that the court should not have granted summary judgment because plaintiff had conducted only limited discovery and because Caterpillar possessed much of the relevant information necessary to support plaintiff's claims. The record reveals, however, that plaintiff did not file a motion to compel compliance with its request for production of documents, and plaintiff failed to file an affidavit pursuant to Rule 191(b).
In opposing the motion for summary judgment, plaintiff asserted that it lacked information possessed by Caterpillar as to market share statistics. Yet, plaintiff never requested additional discoveryunder Supreme Court Rule 191(b) (134 Ill. 2d R. 191(b)). Plaintiff did not file an affidavit containing a statement that material facts were known only to persons whose affidavits the plaintiff was unable to procure by reason of hostility or otherwise, identifying the persons, and showing why their affidavits could not be procured and what the plaintiff believed they would testify to if sworn, along with the reasons for this belief. Consequently, plaintiff cannot claim that the entry of summary judgment must be reversed because plaintiff required additional discovery in order to oppose the motion for summary judgment. See Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 588, ...