Powell v. Home Run Inn, Inc.

559 N.E.2d 803, 202 Ill. App. 3d 94, 147 Ill. Dec. 463, 1990 Ill. App. LEXIS 1156
CourtAppellate Court of Illinois
DecidedAugust 3, 1990
Docket1-90-0391
StatusPublished

This text of 559 N.E.2d 803 (Powell v. Home Run Inn, 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
Powell v. Home Run Inn, Inc., 559 N.E.2d 803, 202 Ill. App. 3d 94, 147 Ill. Dec. 463, 1990 Ill. App. LEXIS 1156 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

INTRODUCTION

Defendant Home Run Inn, Inc., appeals from a preliminary injunction entered against it by the circuit court. The circuit court enjoined Home Run from distributing its frozen food products to the customers of its distributors, plaintiffs Powell and Company and Tumino Sales, Inc. For the following reasons, we have concluded that the circuit court wrongfully enjoined Home Run.

BACKGROUND

Powell and Tumino filed their complaint in chancery on December 20, 1989. Powell and Tumino alleged generally that they are in the business of distributing frozen food products to various retail outlets in the Chicago metropolitan area. Among the products they distribute are pizza and lasagna manufactured by Home Run.

In count I, Powell alleged that Home Run tortiously interfered with its business relationships. Powell averred that, since 1975, it had orally agreed with Home Run to distribute the latter’s frozen food products to retail outlets in the Chicago area. Powell claimed that Home Run agreed not to “direct sell” to retail establishments; that is, it agreed to distribute through Powell rather than directly to retailers. In 1986, according to Powell, the parties entered into negotiations for a written distribution contract. In exchange for Home Run’s participation in these negotiations, Powell turned over a list of its customers and accounts. In return, Powell charged, Home Run promised to keep the lists confidential. Subsequently, however, Home Run encouraged another distributor and a food broker to solicit accounts from the customer lists, including Dominicks Finer Foods. In addition, Powell alleged that it was undercut by Home Run, which sold its products to the other distributors at a lower cost. Powell concluded that Home Run’s conduct constituted an intentional interference with business relationships and an intentional breach of the distribution agreement. Powell sought recovery for its lost profits, sales, and good will, and prayed for injunctive relief and money damages. In count III, Powell charged Home Run with breach of the oral distribution agreement.

In count II, Tumino alleged that Home Run tortiously interfered with its business relationships. Tumino’s allegations are virtually identical to Powell’s, except that the former’s relationship with Home Run began in 1971. Similarly, in count IV, Tumino sought to hold Home Run liable for breach of its oral distribution contract.

On December 22, 1989, Powell and Tumino persuaded the circuit court to enter an ex parte temporary restraining order against Home Run. Upon the filing under seal of Powell and Tumino’s customer lists, which were the subject of the confidentiality agreements, Home Run was enjoined and restrained from distributing to any customers or accounts set forth in the lists.

Home Run answered the complaint on January 2, 1990. It denied tortiously interfering with Powell and Tumino’s business relationships. Home Run went on to allege that Powell and Tumino also distribute pizzas manufactured by one of its competitors. According to Home Run, it merely agreed to sell Powell and Tumino any frozen food products that might be available after its employees and others filled their orders. Home Run averred that sales of its products had decreased since 1986. Home Run conceded that it required Powell and Tumino to turn over their customer lists, yet claimed it did so in order to monitor complaints and requests from their clients. Home Run noted that the parties were unable to successfully negotiate written distribution agreements. It denied that any of its distributors had the exclusive right to sell in a given area. Finally, Home Rim denied breaching the oral distribution agreements.

An evidentiary hearing on Powell and Tumino’s request for the entry of a preliminary injunction began on January 3, 1990. This hearing lasted three days, with the testimony of eight witnesses being taken. During the course of the hearing, the circuit court repeatedly stated that it was solely concerned with Home Run’s alleged breach of its confidentiality agreements with Powell and Tumino, rather than the oral distribution agreements; at one point, the circuit court indicated to Home Run that it was not interested in hearing any evidence concerning the distribution agreements.

After the TRO was dissolved on January 8, 1990, the circuit court entered a preliminary injunction order on January 10, 1990. This order recites:

“THE COURT HEREBY FINDS AS FOLLOWS:
1. Plaintiffs and Defendant heretofore entered into an oral agreement for purchase of frozen food products and distribution and sale of such products to retail outlets. This agreement is terminable at will.
2. Plaintiffs and Defendant entered into written confidential [sic] agreements whereby Defendant promised to maintain confidentiality for all lists of Plaintiffs’ customers that were furnished to Defendant by Plaintiffs at Defendant’s specific insistence and demand.
3. Defendants subsequently breached the confidential [sic] agreements by soliciting accounts for defendant which were formally [sic] the accounts of Plaintiffs, specifically, but not limited to, Dominicks, by undercutting the retail prices at which Plaintiffs sold product to Dominicks. Defendant further placed a map of all distributors’ accounts on the premises of Defendant making that [sic] readily accessible to any one [sic] who wished to view such map. Defendant further actively solicited others to solicit accounts then being serviced by Plaintiff, Powell.
4. That such conduct by Defendant shows a clear and willful intention to breach the confidential [sic] agreements of the parties.
5. That there is no adequate remedy at law by way of damages and that there is an absolute likelihood of success on the merits with regard to this aspect of injunctive relief being sought and Plaintiffs have established a clearly ascertainable right to a preliminary injunction by reason of the testimony of the Plaintiffs, which is unrebutted.
6. Greater harm to Plaintiffs than to Defendant would occur in the event that this relief was denied; ***.”

On the basis of these findings, the circuit court preliminarily enjoined and restrained Home Run from selling or distributing its products to any customers or accounts set forth in Powell and Tumino’s customer lists. The circuit court provided that the preliminary injunction would remain in effect for one year from the date of entry; however, in the event Home Run terminated the oral distribution agreements, the injunction would remain in effect from one year of the delivery of written notice of termination. The circuit court then transferred the cause to the law division for determination of the remaining issues.

The circuit court also took evidence as to the amount of bond to be given by Powell and Tumino. Joseph Perrino, executive vice-president of Home Run, testified that Tumino’s sales amounted to approximately $600,000 per year, and that Powell’s amounted to $800,000.

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Bluebook (online)
559 N.E.2d 803, 202 Ill. App. 3d 94, 147 Ill. Dec. 463, 1990 Ill. App. LEXIS 1156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-home-run-inn-inc-illappct-1990.