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THIRD DIVISION

Date Filed: June 19, 2002

No. 1-00-0334

PRESIDING JUSTICE HALL delivered the opinion of the court:

The plaintiff, Overnite Transportation Company (Overnite)filed a complaint seeking damages for trespass, tortiousinterference with existing and prospective business relationshipsand civil conspiracy against the defendants, the InternationalBrotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica, AFL-CIO, Teamsters Local Union Numbers 41, 120, 135,414, 705, 710, 714 and 781, affiliated with the InternationalBrotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica, AFL-CIO, certain named officers and agents and unknownindividuals. The circuit court dismissed the suit pursuant tosection 2-619(a)(3) of the Code of Civil Procedure (the Code)(735 ILCS 5/2-619(a)(3) (West 1998)). Overnite filed this timelyappeal.

After the briefs were filed in this case, the defendant-appellees filed a motion requesting oral argument which weordered taken with the case. Subsequently, this court allowedoral argument in this case. We therefore strike the motionrequesting oral argument as moot. We now turn to the merits ofthis appeal.

On July 14, 1999, Overnite filed the instant complaintagainst the defendants in the circuit court of Cook County. Itis not disputed that, prior to filing the complaint, on June 15,1999, Overnite filed an unfair labor practice charge with theNational Labor Relations Board (NLRB) based upon the same factsthat it set forth in the complaint filed in this case. Other factual allegations pertinent to our review are taken from thecomplaint and are set forth below.

Overnite is a common carrier engaged in the interstatetransportation of freight and maintains a freight service centerin Bedford Park, Illinois. Beginning in the fall of 1994, thedefendants engaged in efforts to organize Overnite's freight-handling employees and to gain collective bargaining agreementsfor various separate units of Overnite's employees. Sometimeprior to June 14, 1999, the defendants conspired to commitvarious tortious and criminal acts against Overnite and itsemployees to force them to accept union representation and aTeamster contract. On June 15, 1999, the defendants, some armedwith axe handles disguised as picketing posters, arrived atOvernight's Bedford Park facility, where they forced their wayinto the facility, injured security persons and marched aroundthe facility making obscene gestures and shouting obscenities andthreats at Overnite employees who refused to support them. Aftersome 20 to 30 minutes, the defendants left the facility butthreatened to return and repeat their unlawful acts unlessOvernite and its employees capitulated to their demands.

The defendants filed a motion to dismiss Overnite'scomplaint. Specifically, the defendants alleged that thecomplaint should be dismissed pursuant to section 2-619(a)(3) ofthe Code, which provides as follows:

"(a) Defendant may, within the time for pleading, file amotion for dismissal of the action or for other appropriaterelief upon any of the following grounds. ***

(3) That there is another action pending between thesame parties for the same cause." 735 ILCS 5/2-619(a)(3) (West 1998).

The sole issue on appeal is whether the circuit court erredin dismissing Overnite's complaint pursuant to section 2-619(a)(3).

Generally, a court of review applies a de novo standard to amotion to dismiss because the motion does not require the trialcourt to weigh facts or determine credibility. Hapag-Lloyd(America), Inc. v. Home Insurance Co., 312 Ill. App. 3d 1087,1090, 729 N.E.2d 36, 39 (2000). However, when such a motion todismiss is inherently procedural, such as a section 2-619(a)(3)motion seeking dismissal because another action is pendingbetween the parties or the same cause, the motion urges the trialcourt to weigh several factors to determine if it is appropriatefor the action to proceed. Hapag-Lloyd, 312 Ill. App. 3d at1090, 1096, 729 N.E.2d at 39, 43. Where the trial court hasweighed the factors in determining whether to grant a dismissalor stay of the proceedings, the trial court's decision isreviewed under an abuse of discretion standard. See Hapag-Lloyd,312 Ill. App. 3d at 1090-91, 729 N.E.2d at 39.

The record in this case reveals that the circuit court basedits decision on the factors it believed that it was required toconsider. Therefore, we will review the circuit court's decisionunder the abuse of discretion standard.⁽¹⁾

Section 2-619(a)(3) is designed to avoid duplicativelitigation and is to be applied to carry out that purpose. Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428, 447,493 N.E.2d 1045, 1053 (1986). Pursuant to section 2-619(a)(3),the defendant may move for a dismissal or stay of the action. Kellerman, 112 Ill. 2d at 447, 493 N.E.2d at 1053. It is theburden of every section 2-619(a)(3) movant to demonstrate throughclear and convincing evidence that the two actions involve boththe same parties and the same cause. Hapag-Lloyd, 312 Ill. App.3d at 1091, 729 N.E.2d at 40.

Overnite begins by contending that the NLRB proceeding isnot an "action" within the meaning of section 2-619(a)(3). Previous cases have not addressed this precise issue. Infact, the Illinois Supreme Court has specifically declined todecide whether a proceeding before an administrative tribunalwith the power to issue a final, binding and enforceable decisionconstitutes an "action" within the meaning of section 2-619(a)(3). Tumminaro v. Tumminaro, 198 Ill. App. 3d 686, 692,556 N.E.2d 293, 297 (1990); see Ransom v. Marrese, 122 Ill. 2d518, 530-31, 524 N.E.2d 555, 561 (1988).

In Ransom, our supreme court held that a proceeding before amedical review board did not qualify as a judicial proceeding,i.e., its members were not judicial officers, no hearing or trialwas conducted, and it did not render a decision or judgment onthe merits. Ransom, 122 Ill. 2d at 529, 524 N.E.2d at 560.

The Ransom court noted that in Cummings v. Iron HustlerCorp., 118 Ill. App. 3d 327, 454 N.E.2d 1078 (1983), thereviewing court had assumed, without expressly deciding, that aproceeding before the Illinois Human Rights Commission was an"action" under section 2-619(a)(3). The court then noted theanalysis in the appellate opinion in Ransom ⁽²⁾ wherein theappellate court, in finding that the medical review boardproceeding did not qualify as an "action," distinguished theCummings decision on the basis that the administrative agency inthat case was authorized to render final, binding decisions whichwere enforceable through a court order and that the proceedingsbefore it were similar to a judicial proceeding. Ransom, 122Ill. 2d at 529, 524 N.E.2d at 560.

Moreover, an agency is said to act in a judicial capacitywhen it provides:"'(1) representation by counsel, (2) pretrialdiscovery, (3) the opportunity to present memoranda of law, (4)examination and cross-examination at the hearing, (5) theopportunity to introduce exhibits, (6) the chance to object toevidence at the hearing, and (7) final findings of fact andconclusions of law.' [Citation.]" Weing v. Lockheed EnvironmentalSystems & Technologies Co., 312 Ill. App. 3d 236, 239-40, 726N.E.2d 645, 648 (2000).

In an NLRB proceeding, when a complaint is issued based uponthe filing of an unfair labor practices charge, the matter isfirst heard by an administrative law judge. All of the parties,including the administrative law judge, have the power to call,examine and cross-examine witnesses and introduce evidence intothe record. 29 C.F.R.