Cable America, Inc. v. Pace Electronics, Inc.

919 N.E.2d 383, 396 Ill. App. 3d 15
CourtAppellate Court of Illinois
DecidedNovember 16, 2009
Docket1-08-3073 Rel
StatusPublished
Cited by40 cases

This text of 919 N.E.2d 383 (Cable America, Inc. v. Pace Electronics, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cable America, Inc. v. Pace Electronics, Inc., 919 N.E.2d 383, 396 Ill. App. 3d 15 (Ill. Ct. App. 2009).

Opinion

JUSTICE GARCIA

delivered the opinion of the court:

The plaintiff, Cable America, appeals from the circuit court’s dismissal of its fifth amended complaint under section 2 — 615 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2 — 615 (West 2006) (“Motions with respect to pleadings”)). Judge Dennis J. Burke ruled the plaintiffs fifth amended complaint failed to identify a cause of action as required by section 2 — 603 of the Code. 735 ILCS 5/2— 603 (West 2006). Section 2 — 603(a) requires a plaintiff to set out in its complaint “a plain and concise statement of the pleader’s cause of action.” 735 ILCS 5/2 — 603(a) (West 2006). Judge Burke found the plaintiffs fifth amended complaint failed to identify any cause of action, a violation that was present in the plaintiffs third and fourth amended complaints. In his order dismissing the complaint with prejudice, Judge Burke noted, he “explicitly informed Plaintiff how to remedy the defects in the pleadings in several prior Orders, and Plaintiff has repeatedly failed to comply.” With new counsel, the plaintiff filed its motion to reconsider the dismissal order under section 2 — 1203 of the Code, which Judge Burke denied. 735 ILCS 5/2— 1203 (West 2006).

We conclude it was within the circuit court’s discretion to enforce its order requiring the plaintiff to comply with section 2 — 603 in its fifth amended complaint or face dismissal with prejudice. We find no abuse of discretion in the circuit court’s denial of the plaintiff s motion to reconsider. We affirm.

BACKGROUND

The plaintiff filed this action on July 22, 2003, seeking injunctive relief against the defendants pursuant to a written contract executed between the plaintiff and the defendants’ predecessor in interest, Golden Sky Systems. Under the agreement, the plaintiff was to receive a commission for subscribing new customers to DirecTV satellite television service, with the defendants acting as “Master System Operator” for the service. The contract’s stipulated termination date was April 10, 2003. The plaintiff conceded in its initial complaint that the contract had “expired on its face,” but contended that the defendants had “continued with a course of conduct consistent with the understanding that the parties were doing business together pursuant to the terms and conditions of the Agreement.” The plaintiff alleged it had obtained new satellite television subscriptions, but the defendants had refused to supply the plaintiff with the account numbers necessary to activate those subscriptions.

Two days after the action was filed, the circuit court entered an agreed order providing that the defendants were to supply the plaintiff with the necessaiy account numbers. The defendants, however, allegedly did not comply with the agreed order. On September 20, 2005, the plaintiff filed its first amended complaint seeking in two counts an accounting and alleging in a third count breach of contract. The circuit court dismissed the accounting counts, but ordered the defendants to answer the breach of contract count, which they did. The parties proceeded with discovery.

Thereafter, the plaintiff sought and was granted leave to file a second amended complaint, which the plaintiff did on December 19, 2006. On January 16, 2007, the defendants moved to dismiss that complaint pursuant to section 2 — 615. On May 7, 2007, the court granted the defendants’ motion and dismissed the complaint without prejudice. It found that the complaint “fail[ed] to set forth sufficient allegations to state a cause of action for breach of contract.”

On June 1, 2007, the plaintiff filed its third amended complaint without identifying the nature of the cause of action in the complaint. The defendants again moved to dismiss, this time alleging a violation of section 2 — 603 of the Code, in addition to a violation of section 2 — 615. On October 2, 2007, the court dismissed the third amended complaint without prejudice, directing that the “Plaintiff must specify the type of cause of action at issue.”

On October 29, 2007, the plaintiff filed its fourth amended complaint, which again did not identify a cause of action. The defendants moved to dismiss on the same grounds as before. On February 14, 2008, the court entered an order dismissing the plaintiffs fourth amended complaint, which reads in pertinent part:

“[T]he Court finds that Plaintiff must specify the type of cause of action it is pursuing as required under 735 ICLS [sic] 5/2 — 603. From Plaintiffs pleadings, it is unclear whether Plaintiff is pursuing breach of an express contract, breach of an oral contract, or violation of a prior Court Order. The Court previously instructed Plaintiff to specifically designate its cause of action in the October 2, 2007 Order, but Plaintiff has failed to comply in the Fourth Amended Complaint. ***

Plaintiff is granted one final 28 days to replead.”

On March 13, 2008, the plaintiff filed its fifth amended complaint. The complaint alleged that the parties had executed a written contract, a copy of which the plaintiff attached to the complaint. The complaint also alleged that the parties continued to perform their respective obligations under the contract after its stipulated expiration date. Finally, the complaint alleged that the defendants had acknowledged in the agreed order the plaintiffs right to receive the DirecTV account numbers from the defendants. The fifth amended complaint did not, however, identify the plaintiffs cause of action. The complaint also failed to otherwise separate what appeared to be multiple causes of action. The defendants once again moved to dismiss the complaint under sections 2 — 603 and 2 — 615.

The circuit court entered an order dismissing the plaintiffs fifth amended complaint with prejudice. In its dismissal order, the court noted it had directed the plaintiff to “clearly identify the exact cause of action it was pursuing as required by 735 ILCS 5/2 — 603.” The court ruled the fifth amended complaint was insufficient as matter of law under section 2 — 615 because the “Plaintiff has failed to identify whether the cause of action is for breach of an oral contract or breach of a written contract.”

With representation by new counsel and within 30 days of the dismissal with prejudice order, the plaintiff filed a motion to vacate the dismissal order under “Section 2 — 1203 of the Illinois Code of Civil Procedure.” 735 ILCS 5/2 — 1203 (West 2006). The plaintiff also attached a proposed sixth amended complaint to the motion to vacate. The motion asserted that the circuit court erred in dismissing the fifth amended complaint with prejudice. The circuit court accepted the motion as one for reconsideration. It denied the motion because the plaintiff made no showing of any newly discovered evidence, changes in the law, or errors in the court’s application of existing law, citing General Motors Acceptance Corp. v. Stoval, 374 Ill. App. 3d 1064, 1078, 872 N.E.2d 91

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Cite This Page — Counsel Stack

Bluebook (online)
919 N.E.2d 383, 396 Ill. App. 3d 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cable-america-inc-v-pace-electronics-inc-illappct-2009.