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04/17/96 A&A DISPOSAL AND RECYCLING v.

April 17, 1996

A&A DISPOSAL AND RECYCLING, INC., PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
BROWNING-FERRIS INDUSTRIES OF ILLINOIS, INC.; BROWNING-FERRIS INDUSTRIES; AND ROT'S DISPOSAL, INC., DEFENDANTS-APPELLANTS AND CROSS-APPELLEES.



Appeal from the Circuit Court of Kane County. No. 89-L-113. Honorable Pamela K. Jensen, Judge, Presiding.

Rehearing Denied May 17, 1996. Released for Publication May 17, 1996.

The Honorable Justice Geiger delivered the opinion of the court: McLAREN, P.j., and Inglis, J., concur.

The opinion of the court was delivered by: Geiger

The Honorable Justice GEIGER delivered the opinion of the court:

The defendants, Browning-Ferris Industries of Illinois, Inc. (BFI of Illinois), Browning-Ferris Industries (BFI), and Rot's Disposal, Inc. (Rot's), appeal from the judgment of the circuit court of Kane County awarding damages and attorney fees to the plaintiff, A&A Disposal and Recycling, Inc., on its claim under the Illinois Antitrust Act (740 ILCS 10/1 et seq. (West 1994)). The defendants raise numerous arguments on appeal. For the reasons discussed below, we reverse the judgment of the circuit court.

The plaintiff was a waste hauler that provided services in Du Page and Kane Counties until it sold its business to Groot Industries in 1989. The plaintiff filed this action under the Illinois Antitrust Act (740 ILCS 10/1 et seq. (West 1994)), claiming that it was forced to sell its business at a distress price because the defendants had offered predatory prices to Naperville customers.

Rot's and BFI of Illinois counterclaimed against the plaintiff, claiming that the plaintiff had conspired with other waste-hauling competitors to illegally allocate territories and thereby maintain monopoly power in Naperville. The court directed a verdict on the counterclaim in favor of the plaintiff.

The trial court denied the defendants' motions for summary judgment as well as the defendants' motion for reconsideration. The trial court also denied the defendants' motions for directed verdict, both at the close of the plaintiff's case and at the close of the evidence.

The jury returned a verdict against all three of the defendants, awarding the plaintiff $2.784 million in monetary damages. The trial court used a multiplier of 1.5 to increase the damage award to $4.176 million. The trial court awarded $375,000 in attorney fees to the plaintiff. The trial court denied the defendants' motion for judgment non obstante veredicto or for a new trial and awarded the plaintiff $68,985.25 in additional attorney fees for the post-trial proceedings. The defendants filed a timely notice of appeal.

The defendants' first argument on appeal is that the trial court improperly failed to direct a verdict or enter judgment n.o.v. in their favor. The defendants argue that the plaintiff failed to satisfy its burden by limiting its definition of the relevant product market to only those services rendered to commercial customers, when the same productive assets, trucks, and drivers are interchangeably used for both commercial and residential customers. A trial court should not direct a verdict or enter a judgment n.o.v. unless all of the evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967). That standard also governs our consideration of a trial court's denial of such a judgment. Doyle v. White Metal Rolling & Stamping Corp., 249 Ill. App. 3d 370, 380, 188 Ill. Dec. 339, 618 N.E.2d 909 (1993). Where this court is called upon to review a trial court's denial of a motion for judgment n.o.v., we have no license to substitute our judgment for that of the jury. Morse v. Johnson, 81 Ill. App. 3d 552, 555, 36 Ill. Dec. 813, 401 N.E.2d 654 (1980). The jury's resolution of disputed factual questions and the jury's determination as to which witness' recollection is more reliable can only be set aside where palpably erroneous or wholly unwarranted. Morse, 81 Ill. App. 3d at 555.

This action was brought under section 3 of the Illinois Antitrust Act, which provides, in pertinent part:

"Every person shall be deemed to have committed a violation of this Act who shall:

(3) Establish, maintain, use, or attempt to acquire monopoly power over any substantial part of trade or commerce of this State for the purpose of excluding competition or of controlling, fixing, or maintaining ...


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