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Village of Mapleton v. Cathy's Tap, Inc., No. 3-99-0837 cons. with 3-99-0838thru 3-99-0867

3rd District, 5 May 2000

JUSTICE BRESLIN delivered the opinion of the court:

Defendants Cathy's Tap, Inc., d/b/a Shooters (Cathy's Tap), and Serena Kemper appeal from the trial court's refusal to stayan action filed against them by the Village of Mapleton (Village). On appeal, Cathy's Tap contends that the trial courtabused its discretion by refusing to grant the stay in light of a suit pending in federal court in which Cathy's Tap challengesthe constitutionality of the Village ordinance under which it was charged. We agree and hold that a federal action testing theconstitutionality of a new municipal ordinance and the municipality's subsequently filed prosecution of that ordinanceconstitute the "same cause" for purposes of a motion to stay under section 2-619(a)(3) of the Illinois Code of CivilProcedure (Code) (735 ILCS 5/2-619(a)(3) (West 1998)). As such, this is a case in which comity requires that the statecourt action be stayed pending the outcome of the federal district court proceedings.

FACTS

Cathy's Tap is a retail liquor licensee that employs nude female dancers through its alter-ego, Shooters, Inc. The Villageamended its liquor license ordinance to make it unlawful to sell liquor by the drink in conjunction with an "adult use"without an adult establishment license. Village of Mapleton Ordinance 98-02 (1998). The definition of "adult use" includesnonobscene live nude dancing. Village of Mapleton Ordinance 98-02 (1998). Cathy's Tap challenged the constitutionalityof the ordinance within three months of its passage. Approximately four months later, the Village filed 18 citations againstCathy's Tap, alleging violations of this new ordinance.

Cathy's Tap filed a motion to stay the state action under section 2-619(a)(3) due to the federal court action that waspending. The trial court denied the motion, finding that the state and federal actions do not arise out of the same transactionor occurrence.

ANALYSIS

Section 2-619(a)(3) of the Code provides that a defendant may seek a dismissal or a stay on the ground that there is anotheraction pending between the same parties for the same cause. 735 ILCS 5/2-619(a)(3) (West 1998); Kellerman v. MCITelecommunications Corp., 112 Ill. 2d 428, 493 N.E.2d 1045 (1986). Section 2-619(a)(3) is an inherently procedural deviceaimed at avoiding duplicative litigation (Miller v. Thomas, 275 Ill. App. 3d 779, 656 N.E.2d 89 (1995)) and it should beconstrued liberally. Kapoor v. Fujisawa Pharmaceutical Co., 298 Ill. App. 3d 780, 699 N.E.2d 1095 (1998). The trialcourt's decision on a section 2-619(a)(3) motion may be upset on appeal only if the decision constitutes an abuse ofdiscretion. Arthur Young & Co. v. Bremer, 197 Ill. App. 3d 30, 554 N.E.2d 671 (1990).

The Village does not contend that the federal and state cases do not involve the same parties. Rather, the Village confinesits argument to asserting that the federal and state cases do not involve the same cause.

Two actions are for the same cause when the relief requested is based on substantially the same set of facts. TerracomDevelopment Group, Inc. v. Village of Westhaven, 209 Ill. App. 3d 758, 568 N.E.2d 376 (1991). The crucial inquiry iswhether the two actions arise out of the same transaction or occurrence, not whether the legal theory, issues, burden of proofor relief sought materially differ between the two actions. Tambone v. Simpson, 91 Ill. App. 3d 865, 414 N.E.2d 533 (1980).Furthermore, the purpose of the two actions need not be identical; rather, there need only be a substantial similarity ofissues between them. People ex rel. Phillips Petroleum Co. v. Gitchoff, 65 Ill. 2d 249,357 N.E.2d 534 (1976).

One case that we find instructive on how to apply these principles is Illinois Central Gulf R.R. Co. v. Goad, 168 Ill. App. 3d541, 522 N.E.2d 845 (1988). The parties in Illinois Central reached a verbal settlement over a dispute between them, butplaintiff refused to sign the written settlement agreement. The dispute involved injuries the defendant sustained whileworking for plaintiff. Defendant filed a state action, seeking a declaration that the verbal agreement was binding. The circuitcourt dismissed the state action in favor of a prior action pending between the parties in federal court. Defendant had filedthe federal action against plaintiff under the Federal Employers' Liability Act (45 U.S.C.