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Illinois Licensed Beverage Association, Inc. v. Advanta Leasing Services

July 26, 2002

THE ILLINOIS LICENSED BEVERAGE ASSOCIATION, INC., AN ILLINOIS NOT-FOR-PROFIT CORPORATION, INDIVIDUALLY AND ON BEHALF OF ITS MEMBERS, PLAINTIFF-APPELLEE,
v.
ADVANTA LEASING SERVICES, A DIVISION OF ADVANTA BANK CORPORATION; MARK B. BALOTTI; RENEE RICHAU; LINDELL LARRY BITTLE; PAUL RIBAU; MARK LEWIS; TOM DOUGHERTY; AND PAT GALVIN, DEFENDANTS-APPELLANTS, AND PREFERRED CAPITAL, INC.; MARLIN LEASING CORPORATION; QL CAPITAL, INC.; LIBERTY LEASING COMPANY, A DIVISION OF COMMERCIAL FEDERAL BANK, DEFENDANTS.



Appeal from Circuit Court of Sangamon County No. 01MR255 Honorable Robert J. Eggers, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

UNPUBLISHED

Section 2-1001(a)(2)(ii) of the Code of Civil Procedure (Code) provides that a party's motion for substitution of judge as of right must be granted if the motion "is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case." 735 ILCS 5/2-1001(a)(2)(ii) (West 2000). In this case, we consider whether a trial court's ruling, made at a time the court was without jurisdiction to act, meets the criteria of section 2-1001(a)(2)(ii) of the Code, so as to preclude a party after that ruling from obtaining the substitution of judge. We hold that it does not.

I. BACKGROUND

In May 2001, plaintiff, the Illinois Licensed Beverage Association (ILBA), on behalf of itself and its members, filed a complaint for declaratory and injunctive relief and damages against (1) JRA 222 Corporation, d/b/a Credit Card Center (CCC); (2) Information Leasing Corporation and defendants Advanta Leasing Services (Advanta), Preferred Capital, Inc., Marlin Leasing Corporation, QL Capital, Inc., and Liberty Leasing Company (collectively, leasing companies); and (3) individual defendants, Mark B. Balotti, Renee Richau, Lindell Larry Bittle, Paul Ribau, Mark Lewis, Tom Dougherty, and Pat Galvin.

In June 2001, CCC filed a bankruptcy petition under chapter 11 of title 11 of the United States Code (Bankruptcy Code) (11 U.S.C. §1101 et seq. (2000)). On July 9, 2001, ILBA filed in Sangamon County circuit court (trial court) a motion for a preliminary injunction against the leasing companies, seeking, in pertinent part, to enjoin the leasing companies from taking legal action against any of ILBA's members with whom the leasing companies had entered contracts for the rental of automated teller machines (ATMs). On July 17, 2001, Advanta filed in the trial court a notice stating that the case had been removed to the United States Bankruptcy Court (bankruptcy court). Following a July 18, 2001, hearing, the trial court granted ILBA's motion for a preliminary injunction.

Later that month, the bankruptcy court entered an order declaring void any actions the trial court had taken after the July 17, 2001, filing of the removal notice. In August 2001, ILBA voluntarily dismissed CCC as a defendant. On September 5, 2001, the bankruptcy court remanded the case to the trial court, upon finding that, in light of CCC's dismissal, it no longer had jurisdiction.

On September 11, 2001, ILBA filed a motion to reinstate the trial court's July 18, 2001, preliminary injunction. On September 19, 2001, before the court ruled on ILBA's motion, Advanta filed a motion for substitution of judge as of right pursuant to section 2-1001(a)(2) of the Code (735 ILCS 5/2-1001(a)(2) (West 2000)). In October 2001, the court denied Advanta's motion for substitution of judge, and in November 2001, the court entered another order granting a preliminary injunction against the leasing companies.

On appeal, Advanta argues that the trial court (1) erred by denying its motion for substitution of judge as of right; and (2) abused its discretion by granting ILBA's motion for a preliminary injunction because (a) ILBA failed to satisfy the requirements for a preliminary injunction, (b) the agreements between ILBA members and the leasing companies under which the dispute arose provide that such disputes shall be resolved in New Jersey court; and (c) ILBA lacked standing to sue and failed to name necessary parties. Because we agree with Advanta's first argument, we reverse and remand for further proceedings.

A. The Nature of the Parties and the Initial Complaint

According to ILBA's May 2001 complaint, ILBA is a nonprofit association whose members principally consist of restaurants, bars, liquor stores, fraternal clubs, and recreational facilities that sell alcoholic beverages to the public. In September 1999, ILBA entered into an agreement with CCC, which provided, in pertinent part, that (1) CCC would pay ILBA $200 for each ATM it sold or leased to ILBA members, plus five cents per transaction on all such ATMs; (2) CCC would pay ILBA members 90% of the "total swipe surcharge" at their respective ATMs, instead of the standard 85%; and (3) in exchange, ILBA would (a) grant CCC exclusive rights to solicit its members to buy or lease ATMs for use on their premises, and (b) provide CCC with a list of its members.

ILBA's complaint alleged that between September 1999 and March 2001, CCC's representatives, including Balotti, Richau, Bittle, Ruhan, and Lewis, communicated to ILBA members that if they agreed to lease an ATM from CCC for $269 per month, they would be guaranteed to receive $264 per month from advertising and transaction fees, plus $1.35 each time the ATM was used. In reliance on such representations, over 100 ILBA members entered "Merchant Processing Agreements" and "ATM Advertising Agreements" with CCC. CCC representatives also obtained ILBA members' signatures on separate agreements for the lease of the ATMs. Although the ILBA members believed they were entering into lease agreements with CCC, they were in fact entering into leases with one of the leasing companies.

In August 2000, CCC started failing to make payments to ILBA and ILBA's members. Because the ILBA members' equipment leases were not with CCC, the members were bound to continue to pay their lessors $269 per month, even though they were not receiving any of the money they had been guaranteed under their agreements with CCC.

ILBA's complaint further alleged that CCC had fraudulently induced ILBA members to enter lease agreements with the leasing companies. As relief, ILBA requested that the trial court (1) declare the equipment leases null and void; (2) enjoin the leasing companies from enforcing any default or collection of any lease payments from ILBA members until final resolution of the case on the merits; and (3) award damages for breach of contract and common-law fraud and deceit. (At some point after ILBA filed its ...


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