Mashal v. And In a Representative Capacity On Behalf of All Those Similarly Situated

• Decision Date: 31 March 2011
• Docket Number: No. 1–09–2484.,1–09–2484.
• Citation: 349 Ill.Dec. 314,946 N.E.2d 508,408 Ill.App.3d 817
• Parties: Gazi H. MASHAL., Indiv., and in a Representative Capacity on Behalf of All Those Similarly Situated, Plaintiff–Appellant,v.The CITY OF CHICAGO; Terry G. Hillard, Not Indiv., but as Superintendent of the Chicago Police Department; Caroline O. Shoenberger, Not Indiv., but as Commissioner of the City of Chicago Department of Consumer Services; and Bea Reyna–Hickey, Not Indiv., but as Director of the City of Chicago Department of Revenue, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

408 Ill.App.3d 817

946 N.E.2d 508

349 Ill.Dec. 314

Gazi H. MASHAL., Indi

v., and in a Representative Capacity on Behalf of All Those Similarly Situated, Plaintiff–Appellant,

v.The CITY OF CHICAGO; Terry G. Hillard, Not Indi

v., but as Superintendent of the Chicago Police Department; Caroline O. Shoenberger, Not Indi

v., but as Commissioner of the City of Chicago Department of Consumer Services; and Bea Reyna–Hickey, Not Indi

v.

, but as Director of the City of Chicago Department of Revenue, Defendants–Appellees.

No. 1–09–2484.

Appellate Court of Illinois, First District, Sixth Division.

March 31, 2011.

Leo M. Bleiman, Leo M. Bleiman & Associates, Donald A. LeBoyer, Andrew P. Lamis, Law Offices of Andrew P. Lamis, David A. Novoselsky, Brian A. Schroeder, Novoselsky Law Offices, Chicago, for Appellant.Mara S. Georges, Corporation Counsel, City of Chicago (Benna Ruth Solomon, Deputy Corporation Counsel, Myriam Zreczny Kasper, Chief Assistant Corporation Counsel, Suzanne M. Loose, Assistant Corporation Counsel, of counsel), for Appellee.

OPINION

Justice CAHILL delivered the judgment of the court, with opinion.

In this appeal, we respond to a supervisory order entered by the supreme court directing us to answer four certified questions under Illinois Supreme Court Rule 308 (eff. Feb.26, 2010). We first set out verbatim the four certified questions contained in the order:

“A. What is a ‘decision on the merits' under [section 2–802 of the Code of Civil Procedure (Code) (735 ILCS 5/2–802 (West 2004)) ] that would preclude the entry of a class decertification order.

B. Whether, in a class action case challenging defendants' practice of issuing parking or standing violations to taxicab drivers and others by mail and

[349 Ill.Dec. 316 , 946 N.E.2d 510]

without any personal service on the driver or placement of the citation on the offending vehicle, a prior Judge's ruling that the defendants' ‘practice of sending a second notice of a parking or standing violation prior to an initial notice being either hand delivered to the driver of the vehicle or affixed to the vehicle is violative of the plain language of the [operative] statute and the ordinances' constitutes a decision on the merits under [section 2–802 of the Code] such that a subsequent Judge presiding in the case lacks the authority to decertify the class.

C. Whether, in a class action case challenging defendants' practice of issuing parking or standing violations to taxicab drivers and others by mail and without any personal service on the driver or placement of the citation on the offending vehicle, a prior Judge's ruling that denied the defendants' motion for partial summary judgment on the application of their affirmative defenses of failure to exhaust administrative remedies, res judicata, the collateral attack doctrine, and the voluntary payment doctrine constitutes a decision on the merits under [section 2–802] such that a subsequent Judge presiding in the case lacks the authority to decertify the class.

D. Whether, in a class action case challenging defendants' practice of issuing parking or standing violations to taxicab drivers and others by mail and without any personal service on the driver or placement of the citation on the offending vehicle, a Judge's ruling that granted in part the defendants' motion for summary judgment on the application of the statute of limitations constitutes a decision on the merits under [section 2–802] such that a subsequent Judge presiding in the case lacks the authority to decertify the class.”

In answering the first question we conclude that for a decision to be “on the merits” under section 2–802 there must be a complete determination of liability on a claim, based on the facts disclosed by the evidence. We answer the second question in the negative: the grant of partial summary judgment in favor of plaintiff in this case did not completely determine the liability on a claim based on the facts disclosed in evidence. We answer the third question in the negative: the court did not render a “decision on the merits” when it denied defendants' motion for partial summary judgment on their affirmative defenses because the court made no determination of liability. We answer the fourth question in the negative: the partial summary judgment ruling on the statute of limitations was not a decision on the merits because it did not determine liability as to the remaining members of the class.

This case arises from a class action lawsuit filed in 2000 by plaintiff Gazi Mashal against the City of Chicago (City). Mashal worked as a Chicago taxi driver and challenged the City's practice of issuing “fly-by” traffic citations to taxicab drivers and others. “Fly-by” traffic citations are described in the pleadings as those allegedly received by mail, without personal service on the driver or placement of the citation on the offending vehicle. The circuit court entered a class certification order in 2002.

In March 2005, plaintiff filed a motion for partial summary judgment on the City's liability for issuing the citations. Among other claims, plaintiff argued that the City's practice violated the Illinois Vehicle Code (625 ILCS 5/11–208.3(b)(3), (b)(5)(i) (West 2004)) and the Municipal Code of Chicago (Chicago Municipal Code § 9–100–030(b) (amended Feb. 10, 2009); § 9–100–050(d) (amended Dec. 7, 2005)). In July 2005, the City also filed a motion for summary judgment. The City argued

[349 Ill.Dec. 317 , 946 N.E.2d 511]

that plaintiffs were barred from litigating their claims because they failed to first challenge the citations at the department of administrative hearings. The City also argued that the claims were barred by res judicata, collateral estoppel, the voluntary payment doctrine and failure to exhaust administrative remedies. The court found that the practice of issuing the “fly-by” citations was illegal under the Illinois Vehicle Code and Chicago Municipal Code, granted plaintiff's motion for partial summary judgment and denied the City's motion for summary judgment. Some time passed, without explanation in the record.

In 2006, the City filed a motion for partial summary judgment on the affirmative defense of the statute of limitations. The City contended that the one-year statute of limitations in section 8–101 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/8–101 (West 2006)) applied to bar certain claims, and in the alternative, the five-year limitation period in section 13–205 of the Code (735 ILCS 5/13–205 (West 2006)) applied. Judge Richard Siebel, who had handled the case up to that point, retired and was replaced by Judge Stuart Palmer. Judge Palmer found that the five-year statute of limitations applied and held that all claims before September 13, 1995, were barred. Again considerable time passed without explanation in the record.

In January 2007, the City moved to decertify the class, arguing that the case no longer satisfied the requirements for class certification. Specifically, the City contended that Judge Siebel's ruling that the “fly-by” practice was illegal resolved the common issues in the case, such that class certification was no longer warranted. Judge Palmer granted the City's motion in July 2008.

Plaintiff filed a motion under Illinois Supreme Court Rule 308 (eff. Feb.26, 2010) to certify a question for interlocutory review: whether the court's order granting plaintiff partial summary judgement was a “decision on the merits” such that a subsequent judge lacked authority under section 2–802 of the Code (735 ILCS 5/2–802 (West 2004)) to decertify the class. Plaintiff's motion was denied.

Plaintiff then filed a motion for a supervisory order with the Illinois Supreme Court, asking that the four questions above be certified. The supreme court entered a supervisory order directing the circuit court to certify the four questions for appeal and directing this court “to accept the appeal pursuant to Illinois Supreme Court Rule 308 and answer the certified questions.” The circuit court certified the questions on September 9, 2009.

The first question is: “[w]hat is a ‘decision on the merits' under [section 2–802] that would preclude the entry of a class decertification order?”

Section 2–802(a) of the Code states:

“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.” 735 ILCS 5/2–802(a) (West 2004).

The parties agree that section 2–802 does not define “decision on the merits,” and our research has not revealed an Illinois case specifically defining a “decision on the merits” in the context of section 2–802.

We review questions of statutory interpretation de novo. People ex rel. Madigan v. Illinois Commerce Comm'n, 231 Ill.2d 370, 377, 326 Ill.Dec. 10, 899 N.E.2d 227 (2008). The primary purpose of our

[349 Ill.Dec. 318 , 946 N.E.2d 512]

review is to give effect to the legislature's intent. Hernon v. E.W. Corrigan Construction Co., 149 Ill.2d 190, 194, 172 Ill.Dec. 200, 595 N.E.2d 561 (1992). When the language of a statute is unclear we will examine the “reason and necessity for the law, the evils sought to be remedied, and the purpose to be achieved.” In re Detention of Lieberman, 201 Ill.2d 300, 308, 267 Ill.Dec. 81, 776 N.E.2d 218 (2002).

The parties appear to agree that res judicata case law provides guidance in this case, equating “judgment on the merits” with “decision on the merits” in the context of section 2–802. The parties cite Fraley v. Boyd, 83 Ill.App.2d 98, 102, 226 N.E.2d 81 (1967), where the court stated: “[a] judgment is on the merits when it amounts to a decision as to the respective rights and disabilities of the parties based on the ultimate facts or state of facts disclosed by the pleadings...