Eshaghi v. Hanley Dawson Cadillac Co., Inc.

• Decision Date: 05 June 1991
• Docket Number: No. 1-90-1887,1-90-1887
• Parties: , 158 Ill.Dec. 647 Behzad ESHAGHI, individually and on behalf of all persons similarly situated, Plaintiff-Appellant, v. HANLEY DAWSON CADILLAC COMPANY, INC. and Hanley Dawson, Jr., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 760

574 N.E.2d 760

214 Ill.App.3d 995, 158 Ill.Dec. 647

Behzad ESHAGHI, individually and on behalf of all persons similarly situated, Plaintiff-Appellant, v. HANLEY DAWSON CADILLAC COMPANY, INC. and Hanley Dawson, Jr. Defendants-Appellees.

No. 1-90-1887.

Appellate Court of Illinois First District, Third Division.

June 5, 1991.

Alexander, Finnerty & Green, Chicago, for plaintiff-appellant.

Rosenthal and Schanfield, Chicago (Robert R. Tepper and Lynn M. Esp, of counsel), for defendants-appellees.

Justice GREIMAN delivered the opinion of the Court:

Plaintiff, Behzad Eshaghi, filed an interlocutory appeal from an order of the circuit court denying plaintiff's motion for class certification because the plaintiff failed to show (1) he was a member of the class he sought to represent and (2) common questions of law and fact predominate.

Although we agree that plaintiff is unable to show himself to be a member of the proposed class of those customers of defendant who were deceived or misled into paying a 6% surcharge for consumables, we believe that common questions of law and fact do predominate among members of the proposed class. However, class certification requires that both of the above elements be present.

Accordingly, we affirm the order of the circuit court.

Plaintiff's original complaint alleged the defendant, Hanley Dawson Cadillac Co., posted a sign in its service department stating a labor rate of $57 per hour for repair and servicing. However, defendant charged 6% more for "consumables" on Cadillacs only, serviced at its facility. "Consumables" appear to be supplies such as lubricants, chemicals, disposable paper floormats and small parts such as nuts and bolts, too inconsequential to list and price. It is the refund of this 6% that plaintiff seeks on behalf of defendants' affected customers.

Subsequently, plaintiff testified at his deposition that he did not recall seeing such sign when he delivered his car to defendant for service, but noted a sign regarding the 6% charge when he retrieved his car later during the day. He further testified that he had no conversations with any of defendant's employees with regard to the amount charged for the work to be done, the labor rate, or for that matter any other part of the transaction.

In contradiction to this testimony, plaintiff thereafter filed a Second Amended Complaint alleging he was orally advised of the $57 per hour labor rate at the time of delivery to defendant although not advised of the 6% charge for "consumables" at that time.

Pursuant to Supreme Court Rule 308 (134 Ill.2d R. 308), the trial court certified the following question:

"Where the Complaint alleges either (a) a total absence of disclosure of a 6% surcharge, or (b) a disclosure made in a manner that had the effect on consumers of concealing the information and/or making disclosures that were misleading and confusing in violation of the Consumer Fraud and Deceptive Business Practices Act and the Uniform Deceptive Trade Practices Act, was it an abuse of discretion for the trial court to deny class certification on the grounds that plaintiff is not a member of the class and that there is no predominant common factual issue?"

Let us first consider the appropriateness of the trial court's certification. Interlocutory appeals under Rule 308(a) must involve a "question of law as to which there is substantial ground for difference of opinion." Here the trial court has been required to sift through the testimony of plaintiff and compare that testimony with the pleadings to determine whether the plaintiff has carried his burden to require certification of the class. This is not, strictly speaking, a "question of law * * * " as contemplated by Supreme Court Rule 308. The certified question requires this court to determine whether, based on the facts adduced at hearing, the trial court abused its discretion.

While there appear to be differences between the parties as to the evidence or lack thereof, it is appropriate for us, given the structure and complexity of the question certified, to consider this as a mixed question of law and fact. Therefore, it is necessary for us to examine the facts and essential elements of plaintiff's complaint in order to arrive at an appropriate answer to the question certified. It should be noted, however, that an appellate court may not add to or expand upon the questions certified to it by the court below. E.g., Zimmerman v. Northfield Real Estate, Inc., (1986), 165 Ill.App.3d 154, 109 Ill.Dec. 541, 510 N.E.2d 409, State ex rel. Skinner v. Lombard Co. (1982), 106 Ill.App.3d 307, 62 Ill.Dec. 540, 436 N.E.2d 566.

Rule 308 imposes two criteria to justify an interlocutory appeal. First, there must be a substantial ground for difference of opinion. Second, in the conjunctive, "an immediate appeal may materially advance the ultimate determination of the litigation." (Voss v. Lincoln Mall Management Company (1988), 166 Ill.App.3d 442, 444, 116 Ill.Dec. 841, 519 N.E.2d 1056; Ewing v. Liberty Mutual Insurance Company (1985), 130 Ill.App.3d 716, 717, 86 Ill.Dec. 35, 474 N.E.2d 949.) The record indicates that plaintiff has acknowledged that he will dismiss the case below in the event reviewing courts affirm the order denying class certification.

In this appeal, Plaintiff contends that he meets the requirements of class certification set out in section 2-801 of the Illinois Code of Civil Procedure:

"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 trial court denied plaintiff's motion for class certification based on plaintiff's lack of membership in the proposed class. To adequately represent the class, plaintiff must be a member of the class. McCabe v. Burgess (1978), 57 Ill.App.3d 450, 453, 15 Ill.Dec. 57, 373 N.E.2d 327, rev'd on other grounds (1979), 75 Ill.2d 457, 27 Ill.Dec. 501, 389 N.E.2d 565, citing Rodriguez v. Credit Systems Specialists, Inc. (1974), 17 Ill.App.3d 606, 610, 308 N.E.2d 342.

The notion that a plaintiff must be a member of the class would seem to be so elementary that it need not be mentioned. However, the Illinois statute does not appear to be patently clear on that point. The 1977 Illinois statute was modeled after Rule 23 of the Federal Rules of Civil Procedure which governs class certification in the Federal courts. (28 U.S.C.A. R. 23 (West Supp.1990)). Rule 23 provides explicitly that "one or more members of a class may sue or be sued as representative parties." 28 U.S.C.A. R. 23(a) (West Supp.1990).

On the other hand, Section 2-801 of the Illinois Code of Civil Procedure provides in relevant part that "a party may sue or be sued as a representative party of the class only if the court finds" the four criteria set out in both the State statute and Federal rule. Ill.Rev.Stat.1987, ch. 110, par. 2-801.

This court can look to Illinois cases before and subsequent to the enactment of Section 2-801 since this section was meant to codify prior Illinois decisional law. Morrissy v. Eli Lilly & Co. (1979), 76 Ill.App.3d753, 32 Ill.Dec. 30, 394 N.E.2d 1369; Forde, Illinois' New Class Action Statute, 59 Chi.Bar Rec. 120, (1977).

The Illinois courts have not permitted a person to act as a representative who has no connection with the class. Rodriguez, 17 Ill.App.3d 606, 308 N.E.2d 342; Ill.Ann.Stat., ch. 110, par. 2-801, Historical and Practice Notes, at 87 (Smith-Hurd 1983).

In Rodriguez, plaintiffs sought to represent Spanish-speaking customers of the defendant who had been assessed improper service charges with respect to certain consumer contracts. Plaintiffs, however, had cancelled their contracts with the defendant and the court found that since they were not presently indebted to defendant nor had been previously by reason of the contract cancellation, they were not appropriate class representatives.

We are faced with a similar set of facts in the case at bar. The class that plaintiff seeks to certify consists of those customers of defendant who were deceived or mislead into paying a 6% surcharge for "consumables". Plaintiff has challenged the method chosen to inform consumers about the additional charge, alleging that it is likely to deceive and confuse customers. However, plaintiff, as a member of the proposed class, is unable to present any factual allegations that he saw any signs or was orally informed of the original charge to be made for service rendered to his motor vehicle:

"Q: And did you ask him how much it would cost?

A: I don't remember.

Q: Do you remember anything else occurring at the time you took your car in and had that conversation with the man, anything else about that?

A: Really, I don't remember any conversation with that man.

Q: Okay. Do you remember seeing any of the signs that may have been posted in the dealership when you took your car in?

A: No." R. at S000164

In Miner v. Gillette Co. (1981), 87 Ill.2d 7, 14, 56 Ill.Dec. 886, 428 N.E.2d 478, the court noted that the test to determine adequacy of representation is whether the interests of those who are parties are the same as those who are not joined and whether the litigating parties fairly represent those not joined. In that case, each potential plaintiff had received exactly the same promotional offer and letter from the defendant, and performed the same actions toward defendant. In the present case, plaintiff has not been consistent in his portrayal of defendant's actions towards its...