Barliant v. Follett Corp.

• Decision Date: 06 October 1978
• Docket Number: No. 50153,50153
• Citation: 74 Ill.2d 226,23 Ill.Dec. 522,384 N.E.2d 316
• Parties: , 23 Ill.Dec. 522 Donald E. BARLIANT, d/b/a Mayuba Book Stores, Appellant, v. FOLLETT CORPORATION, Appellee.
• Court: Illinois Supreme Court

Page 316

384 N.E.2d 316

74 Ill.2d 226, 23 Ill.Dec. 522

Donald E. BARLIANT, d/b/a Mayuba Book Stores, Appellant, v. FOLLETT CORPORATION, Appellee.

No. 50153.

Supreme Court of Illinois.

Oct. 6, 1978.

Rehearing Denied Jan. 25, 1979.

Earl D. Yaffe, of Yaffe, Mark & Barliant, Chicago, for appellant.

Brown & Blumber, Chicago (Eugene L. Resnick and Stephen E. Smith, Chicago, of counsel), for appellee.

CLARK, Justice:

Donald Barliant (doing business as Mayuba Book Stores), the plaintiff and an attorney, filed a class action complaint in the circuit court of Cook County against the defendant, Follett Corporation, a book publisher, alleging breach of contract, fraud, and a deceptive trade practice within the meaning of the Uniform Deceptive Trade Practices Act (Ill.Rev.Stat.1971, ch. 121 1/2, par. 311 Et seq.). The defendant's motion to dismiss the complaint was denied. Judge Charles P. Barrett entered an order, on November 15, 1972, which found that the complaint was properly filed as a class action and stated a cause of action. After a series of reassignments of the case to other judges, Judge Joseph Wosik, on January 23, 1976, vacated Judge Barrett's order dismissed the class action, and found no just reason to delay enforcement or appeal of the order. Barliant appealed to the appellate court, which affirmed. (53 Ill.App.3d 101, 11 Ill.Dec. 103, 368 N.E.2d 654.) We granted plaintiff leave to appeal. 58 Ill.2d R. 315.

Judge Wosik vacated Judge Barrett's prior order which provided:

"(1.) That this cause is properly filed as a Class Action as to all purchasers from the Defendant billed for transportation 'BKPST TRANS-INS' rather than 'FOB'.

(2.) That the Complaint herein states a good cause of action."

Although the parties, arguing he exceeded his authority, have made an issue of the propriety of Judge Wosik's order, we need not reach that question.

Section 57.3(a) of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 57.3(a)) provides:

"As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it may be so maintained and describe those whom the court finds to be members of the class. This order may be conditional and may be amended before a decision on the merits."

The intent is to have the court determine at the earliest possible time the suitability of the case for class action. This cures a significant defect in prior Illinois law because this question would in some instances not be reached until after a case had been tried on the merits. (Forde, Class Actions in Illinois: Toward a More Attractive Forum for this Essential Remedy, 26 De Paul L.Rev. 211, 231 (1977) (hereafter Forde).) Both sides in an action would benefit from an early determination of the propriety of a class action. Allowing a judge to vacate a class action determination by another judge, three years later, is contrary to the objectives of the statute and fosters uncertainty in the litigation. It may be beneficial to the orderly administration of justice for a second judge to set aside an earlier determination of a suitable class action if clearly changed circumstances, and not mere feelings of error, or more complete discovery warranted it; that is within the scope of section 57.3(a). But, that simply is not evident here. (There is indication that Barliant's becoming a partner in the law firm of Yaffe & Yaffe (now Yaffe, Mark & Barliant), which represents the plaintiff here, after Judge Barrett's order but before Judge Wosik's order, was considered a change of circumstances. It is not clear that this was the basis. However, we believe it was not sufficient justification for dismissing the class suit. Rather, as we decide below (74 Ill.2d at 237-38, 23 Ill.Dec. at 528, 384 N.E.2d at 322), the proper course would have been to disqualify the representing law firm and allow substitution of competent counsel.) Where there has been no clear change of circumstances, a party in a class action should be able to rely on the rulings of a judge lest the party fruitlessly invest much time and effort in preparation. Here, for example, there were three years of discovery involving the hiring of outside consultants, computer expenditures, and depositions. (Federal case law, applying a virtually identical Federal provision (Fed.R.Civ.P. 23), permits a revision of prior rulings but on the basis of changed facts. In Zenith Laboratories, Inc. v. Carter-Wallace, Inc. (3d Cir. 1976), 530 F.2d 508, 512, for example, the court held that a second judge, who had replaced a prior judge in normal rotation, could reverse the prior judge on the basis of a changed factual situation or fuller development of the facts. The changes were the settlement of a related patent-infringement suit which occurred after the initial determination that the class was proper, and the addition of four counts to the plaintiff's complaint. The court found, as a result, that if the plaintiff were allowed to represent the alleged class, the defendant could assert defenses against the plaintiff not available to other members of that class.) Hence, we are unable to find a justification for Judge Wosik's order vacating Judge Barrett's prior finding of a maintainable class action. The second reason for reversing is that the enactment of the class action statute (Ill.Rev.Stat.1977, ch. 110, par. 57.2 Et seq.), after the decision of the appellate court in this case, necessitates a review of Judge Wosik's order. Whatever the standard he employed here to dismiss the class action, and it is unclear from the record, the recent class action statute is applicable. (Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 337, 13 Ill.Dec. 699, 371 N.E.2d 634; Landesman v. General Motors Corp. (1978), 72 Ill.2d 44, 48, 18 Ill.Dec. 328, 377 N.E.2d 813.) The question, then, is whether in the instant case the prerequisites of section 57.2, for the maintenance of a class action, are met.

The parties generally agree on the facts, which are thoroughly stated in the appellate court opinion. In January 1971, the defendant computerized its billing system for book sales to the plaintiff and the other class members. This change from the previously manual system encompassed a charge labeled "BKPST TRANS-INS" on the invoices sent to customers who purchased books on credit. These books were shipped via the United States Postal Service at the fourth-class book-post rate. Barliant first objected to this charge in May of 1972 but the defendant refused to refund the accumulated $15 in charges paid by Barliant in the preceding 17 months. Barliant then filed this suit to recover alleged overcharges on behalf of himself and all of Follett's customers similarly situated. The complaint claimed that the "BKPST TRANS-INS" charge was in excess of the Postal Service charge at the book-post rate and that this violated the defendant's published terms of sale which were F.O.B. the defendant's warehouse. Subsequently the circuit court orders we are concerned with were entered.

Section 57.2 of the Civil Practice Act provides "(a) An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:

(1) The class is so numerous that joinder of all members is impracticable.

(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.

(3) The representative parties will fairly and adequately protect the interest of the class.

(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy."

The plaintiff's petition for leave to appeal and the defendant's answer make arguments based on the case law prior to the enactment of the class action provisions. Their supplemental briefs predictably make their points on the bases of the statute and Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 13 Ill.Dec. 699, 371 N.E.2d 634. It is clear that we are not being asked to determine whether or not a cause of action exists. (The appellate court and the defendant concede that a cause of action, at least for some of the alleged class plaintiffs, exists. Moreover, Judge Wosik's order and the proceeding before Judge F. Emmett Morrissey, who had been assigned the case subsequent to the entry of Judge Barrett's order and who indicated he would vacate that order, manifest a cause of action. Finally, if the well- pleaded facts of the complaint are accepted as true, as is proper on a motion to dismiss (Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 329, 13 Ill.Dec. 699, 371 N.E.2d 634) then the complaint states a good cause of action.) Rather, the propriety of a class action here is at issue. The first prerequisite of numerosity is not in dispute. The defendant is a large book publisher, and, as the record shows, extensively uses the postal system to ship books to its customers. The second and third prerequisites are at the heart of the dispute.

Both the class action statute and Illinois case law require the existence of "questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members." (Ill.Rev.Stat.1977, ch. 110, par. 57.2(a)(2); E. g., Adams v. Jewel Companies, Inc. (1976), 63 Ill.2d 336, 347, 348 N.E.2d 161.) The appellate court, in finding this requirement lacking, linked it to the existence of plaintiff's cause of action for breach of contract and concluded a common question did not exist because the controversy necessitated individual proofs for each alleged class member. "Thus, even if Barliant succeeds in proving his case at a trial, the issue remaining to be resolved to establish a right of recovery in any other class plaintiff is the defendant's liability." (53 Ill.App.3d 101, 107, 11 Ill.Dec. 103, 107, 368 N.E.2d 654, 658.) The defendant...