{ "id": 2605796, "name": "J. ECK AND SONS, INC., Plaintiff-Appellant, v. THE REUBEN H. DONNELLEY CORPORATION, Defendant-Appellee", "name_abbreviation": "J. Eck & Sons, Inc. v. Reuben H. Donnelley Corp.", "decision_date": "1991-05-03", "docket_number": "No. 1\u201490\u20142152", "first_page": "510", "last_page": "515", "citations": [ { "type": "official", "cite": "213 Ill. App. 3d 510" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "385 N.E.2d 714", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "722" } ], "opinion_index": 0 }, { "cite": "67 Ill. App. 3d 869", "category": "reporters:state", "reporter": "Ill. 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App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2667233 ], "weight": 2, "pin_cites": [ { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0001-01" ] } ], "analysis": { "cardinality": 633, "char_count": 12641, "ocr_confidence": 0.775, "pagerank": { "raw": 1.35813800138097e-07, "percentile": 0.6349377898093672 }, "sha256": "d62c0ddbfd8a8e98759853a74bf6ca846a84a7cd91fa24ea9efca3a62bb791bf", "simhash": "1:295b76a5f243fee4", "word_count": 1970 }, "last_updated": "2023-07-14T21:36:27.836966+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J. ECK AND SONS, INC., Plaintiff-Appellant, v. THE REUBEN H. DONNELLEY CORPORATION, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE MURRAY\ndelivered the opinion of the court:\nPlaintiff, J. Eck & Sons, Inc. (Eck), appeals the dismissal of its complaint against the Reuben H. Donnelley Corporation (Donnelley) in an action for damages based upon the tort of intentional interference with prospective economic advantage. The single issue on appeal is whether Eck properly pled a cause of action for intentional interference with prospective economic advantage.\nInsofar as this appeal is concerned, the facts are undisputed. The appeal raises a question on the pleadings. The pertinent facts are as follows.\nEck is an Illinois corporation which, since 1969, was engaged in the home-maintenance business in Chicago\u2019s western suburbs. Donnelley publishes directories commonly called the \u201cYellow Pages.\u201d The directories list the names, addresses, telephone numbers, and in some cases the advertisements of many businesses and services, permitting an individual to quickly locate a desired business and its phone number. Donnelley published Eck\u2019s advertisements from 1970-1979. Donnelley\u2019s customary practice during that time had been to prorate the cost of Eck\u2019s advertising over the entire year. Eck alleges Donnelley incorrectly published its 1979 advertisement. Eck refused to pay for the 1979 advertisement. When Eck sought to place advertisements in subsequent editions of the Yellow Pages directories, Donnelley insisted Eck either pay for the 1979 advertisement or pay in advance for the subsequent advertisements.\nOn October 12, 1982, Eck commenced this litigation by filing a three-count complaint charging Donnelley with an antitrust violation (count I), intentional interference with prospective economic advantage (count II), and breach of contract (count III).\nAfter years of wandering through the Cook County legal system, through no fault of either the parties or the system, on January 2, 1990, Eck filed a second amended complaint consisting of an antitrust count (count I) and an \u201cintentional interference\u201d count (count II). On July 2, 1990, count I was dismissed with prejudice and is not at issue on appeal. Additionally, on July 2, 1990, the trial court granted Donnelley\u2019s motion to dismiss Eck\u2019s \u201cintentional interference\u201d claim (count II), pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014615), on the ground that Eck failed \u201cto plead facts sufficient to allege the requisite element of intent.\u201d Subsequently, Eck filed this timely appeal.\nThe sole issue involved in this appeal is whether Eck\u2019s second amended complaint pled facts sufficient to satisfy the \u201cintent\u201d element of the tort of intentional interference with prospective economic advantage. For the following reasons, we affirm the decision of the trial court.\nTo state a cause of action, a complaint must be legally sufficient, setting forth a legally recognized claim as its avenue of recovery as well as factually sufficient, pleading facts which bring the claim within the legally recognized cause of action alleged. (Borgsmiller v. Burroughs (1989), 187 Ill. App. 3d 1, 4, 542 N.E.2d 1281.) A section 2 \u2014 615 motion to dismiss (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014615) is an objection provided for by the Illinois Code of Civil Procedure to test the legal sufficiency of a pleading. It is the modern substitute of the old common law general demurrer. In determining whether an assailed complaint is substantially insufficient in law, the well-pleaded facts are admitted by a motion to dismiss. (Smith v. Chicago Housing Authority (1976), 36 Ill. App. 3d 967, 968-69, 344 N.E.2d 536; City of Chicago v. Loitz (1975), 61 Ill. 2d 92, 93, 329 N.E.2d 208.) Matters not well pleaded are not admitted by such a motion. Murrell v. Weitzman (1965), 58 Ill. App. 2d 278, 207 N.E.2d 745.\nEck\u2019s amended complaint sets forth a background of Eck\u2019s dealing with Donnelley from 1970 through 1978. Eck was previously involved in trade-name litigation with another home-maintenance company with a similar name. As a result of that litigation, the circuit court specifically ordered Eck, beginning on April 26, 1979, to include and exclude certain information in all of Eck\u2019s future advertising copy. Donnelley was not a party to that trade-name litigation.\nIn 1979, Eck placed its Yellow Pages advertising for that year with Donnelley. Eck alleged that it specifically told Donnelley of the circuit court\u2019s restrictions and that Donnelley agreed to print plaintiff\u2019s ad in compliance with the court\u2019s order. Donnelley allegedly incorrectly published Eck\u2019s ad. Donnelley demanded that Eck pay, in full, for the incorrectly published advertising. Eck refused to pay the full amount demanded by Donnelley for its 1979 advertising.\nPlaintiff attempted to place. Yellow Pages advertising for the year 1980. Donnelley\u2019s practice from 1970 to 1979 had been to prorate the cost of Eck\u2019s advertising over the entire year. However, for 1980, Donnelley demanded either full payment for the incorrect 1979 advertising or payment in advance for Eck\u2019s 1980 advertising. Eck would not pay in full for the incorrect 1979 advertising and could not pay for the 1980 advertising in advance.\nEck further alleged that it expected to do business with potential customers in the Chicago suburbs served by the directories and that two of its former customers did not purchase Eck\u2019s services because they could not find its advertisement in the Yellow Pages.\nSpecifically, Eck argues that the following paragraph and other allegations set forth in its second amended complaint, when construed favorably to the plaintiff, sufficiently allege intent:\n\u201cDefendant, Donnelley intentionally interfered with Plaintiff\u2019s aforementioned valid business expectancy and prevented that expectancy from ripening into a valid business relationship. Specifically, defendant Donnelley prevented Plaintiff from advertising in the Yellow Pages thereby depriving Plaintiff of potential customers until Plaintiff paid in full for an incorrectly published advertisement (defendant Donnelley knew that Plaintiff had insufficient funds to pay for future advertising in advance, leaving a single alternative \u2014 paying the full price for improperly published advertising).\u201d\nIf Donnelley had intentionally interfered with Eck\u2019s business, Eck would be entitled to recover his loss, if any, even if he had to finger through Donnelley\u2019s Yellow Pages to find a lawyer to file the suit. Yet, just filing the law suit is not enough. In Illinois one must file a complaint containing facts which, if proven, assert the cause of action.\nThe elements of the cause of action of intentional interference with economic advantage are: (1) plaintiff must have a reasonable expectancy of entering into a valid business relationship; (2) defendant must know about this expectancy; (3) defendant must intentionally interfere with the expectancy preventing the expectancy from ripening into a valid business relationship; and (4) defendant\u2019s intentional interference must injure the plaintiff. (Tom Olesker\u2019s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1973), 16 Ill. App. 3d 709, 306 N.E.2d 549, rev\u2019d in part on other grounds (1975), 61 Ill. 2d 129, 334 N.E.2d 160.) Additionally, when the conduct of a defendant is privileged, the plaintiff is required to plead and prove that the defendant\u2019s actions were done without justification or with actual malice. (Mannion v. Stallings & Co. (1990), 204 Ill. App. 3d 179, 186, 561 N.E.2d 1134, 1140; HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 545 N.E.2d 672.) If no privilege can be discerned, it then becomes the defendant\u2019s burden to plead and prove justification and the plaintiff need only satisfy the minimum pleading requirement of intent. HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 156-57, 545 N.E.2d 672.\nDespite the trial court\u2019s conclusion, Eck charges that Donnelley\u2019s conduct was neither privileged nor justified. Moreover, Eck submits that the minimal pleading standard (i.e., no need to plead and prove lack of justification) is not only satisfied by the allegations set forth in the second amended complaint but is uncontested by Donnelley. However, not only does Donnelley dispute the allegation that it acted with the requisite intent to interfere with Eck\u2019s business relationship, Donnelley asserts that Eck is trying to confuse the separate concepts of Donnelley\u2019s intended acts (e.g., not extending more credit), with the intent to disrupt Eck\u2019s business. The issue in this case is not whether Donnelley\u2019s conduct was privileged or justified, the issue in this case is Donnelley\u2019s intent; the only allegation contained in the language set forth above. We find no factual allegation that Donnelley intended Eck be deprived of business opportunities.\nAlthough a liberal pleading State, Illinois is a fact-pleading State. The requirement of liberal construction does \u201cnot remedy the failure of a complaint to state a case of action.\u201d (Tru-Link Fence Co. v. The Reuben H. Donnelley Corp. (1982), 104 Ill. App. 3d 745, 754, 432 N.E.2d 1188.) Illinois pleading law permits a party to plead only ultimate facts, rather than the evidence upon which he relies (Borgsmiller v. Burroughs (1989), 187 Ill. App. 3d 1, 542 N.E.2d 1281), yet even under this liberal rule the trial court was correct in dismissing Eck\u2019s complaint. The law in Illinois with respect to pleading \u201cultimate\u201d facts rather than \u201cconclusions of law\u201d is not clear. The same allegation may in one context be a proper allegation of ultimate fact, while in another context, where from a pragmatic viewpoint some of the words do not give sufficient information to an opponent of the character of evidence to be introduced or of the issues to be tried, the allegation may be deemed to be an allegation of a legal conclusion. (Van Dekerkhov v. City of Herrin (1972), 51 Ill. 2d 374, 282 N.E.2d 723.) In this context Eck argues that Donnelley\u2019s intent can be inferred from the allegations of the facts of its complaint. However, in Illinois a complaint may not rest upon conclusions of fact unsupported by allegations of specific facts from which such conclusions may be drawn. Plocher v. City of Highland (1978), 59 Ill. App. 3d 697, 375 N.E.2d 1016.\nThe requisite intent for the tort of intentional interference with a prospective business advantage is defendant\u2019s knowledge of a reasonable business expectancy and defendant\u2019s subsequent intentional interference which prevents the expectancy from ripening into a valid business relationship. (Futurevision, Inc. v. Dahl (1985), 139 Ill. App. 3d 61, 66, 487 N.E.2d 127, 131.) This cause of action is a \u201cpurposely\u201d caused tort, and therefore, a plaintiff must set forth facts which suggest that defendant acted with the purpose of injuring plaintiff\u2019s expectancies. (Crinkley v. Dow Jones & Co. (1978), 67 Ill. App. 3d 869, 880, 385 N.E.2d 714, 722.) While in the present case Eck alleged that Donnelley intentionally interfered with Eck\u2019s prospective business expectancies, Eck failed to allege that Donnelley acted with the purpose of interfering with Eck\u2019s prospective economic advantage.\nThe key issue in the tort of interference with a party\u2019s prospective economic advantage is intent as disclosed by its legal definition and its elements set forth above. Taking plaintiff\u2019s complaint as a whole as the law requires, all that Eck has alleged is that Donnelley mistakenly published an advertisement of Eck\u2019s that caused Eck injury for which Eck refused to pay and that subsequently Donnelley refused to accept Eck\u2019s 1980 advertisement until Eck either paid for the erroneous advertisement (1979 advertisement) or prepaid for the new advertisement. Nowhere is it alleged by specific or the ultimate facts that Donnelley knew its refusal would produce an economic harm to Eck, and additionally, that Donnelley acted despite that knowledge.\nSince plaintiff\u2019s complaint did not contain sufficient allegations of intent or even allegations from which Donnelley\u2019s wrongful intent could be inferred, we find that the trial judge properly granted Donnelley\u2019s motion to dismiss. Accordingly, for the reasons set forth above, we affirm the decision of the trial court.\nJudgment affirmed.\nLORENZ, P.J., and McNULTY, J., concur.", "type": "majority", "author": "JUSTICE MURRAY" } ], "attorneys": [ "Robert Orman, of Chicago, for appellant.", "Byron L. Gregory, Steven H. Hoeft, and Daniel J. Donnelly, all of McDermott, Will & Emery, of Chicago, for appellee." ], "corrections": "", "head_matter": "J. ECK AND SONS, INC., Plaintiff-Appellant, v. THE REUBEN H. DONNELLEY CORPORATION, Defendant-Appellee.\nFirst District (5th Division)\nNo. 1\u201490\u20142152\nOpinion filed May 3, 1991.\nRobert Orman, of Chicago, for appellant.\nByron L. Gregory, Steven H. Hoeft, and Daniel J. Donnelly, all of McDermott, Will & Emery, of Chicago, for appellee." }, "file_name": "0510-01", "first_page_order": 532, "last_page_order": 537 }